the trial of charles random de berenger, sir thomas cochrane, commonly called lord cochrane, the hon. andrew cochrane johnstone, richard gathorne butt, ralph sandom, alexander m'rae, john peter holloway, and henry lyte; _for_ a conspiracy, in the court of king's bench, guildhall, on _wednesday the th, and thursday the th of june, _: with the subsequent proceedings in the court of king's bench: taken in short hand by william brodie gurney, _short hand writer to both houses of parliament_. london: sold by j. butterworth and son, fleet-street, and gale, curtis and fenner, paternoster row. . [entered at stationer's hall.] h. teape, printer, tower-hill, london. the trial of charles random de berenger, and others. on the th of april, , the grand jury for the city of london, at the sessions-house, in the old bailey, returned a true bill, which set forth: [_first count._]--that at the times of committing the several offences in this indictment mentioned, there was, and for a long time before, to wit, two years and upwards, had been an open and public war between our lord the king and his allies, and the then ruler of france, to wit, napoleon bonaparte, and the people of france: and that _charles random de berenger_, _sir thomas cochrane_, commonly called _lord cochrane_, _andrew cochrane johnstone_, _richard gathorne butt_, _ralph sandom_, _alexander m'rae_, _john peter holloway_, and _henry lyte_, supposing and believing, that false reports and rumours of the death of said napoleon bonaparte, and of disasters and losses having recently occurred and happened to the said people of france, would induce the subjects of our said lord the king to suppose and believe, that a peace between our said lord the king and his subjects, and the said people of france would soon be made, and that an increase and rise in the government funds and government securities of this kingdom, would be occasioned thereby. and unlawfully, &c. intending to injure and aggrieve the subjects of our said lord the king, who should make purchases of and in said funds, &c. on the th february, in fifty-fourth year of the reign of our said lord the king, at the parish of st. bartholomew, by the exchange, in the ward of broad-street, in london aforesaid, unlawfully, &c. did conspire, &c. to make and propagate, and to cause, &c. to be made and propagated, a false report and rumour, that the french had been then lately beaten in battle, and that said napoleon bonaparte was killed, and that the allies of our said lord the king were in paris. and that they, the _defendants_, would thereby induce the subjects of our said lord the king to suppose and believe, that a peace would soon be made between our said lord the king and the said people of france, and occasion an increase, &c. of the prices of the government funds, &c. and that _defendants, sir thomas cochrane johnstone, richard gathorne butt, and john peter holloway_, respectively, should then sell, and cause, &c. to be sold for them, to divers liege subjects, &c. divers large parts, and shares in said funds, &c. at higher and greater prices than said parts and shares of and in said funds, &c. would otherwise sell for, with a wicked and fraudulent intention to thereby cheat, &c. the said subjects, &c. of divers large sums of money. and that afterwards, to wit, on the st february, in the year aforesaid, at the parish and ward aforesaid, in london aforesaid, to wit, at dover, in the county of kent, the said _charles random de berenger_, in pursuance, &c. of said conspiracy, did unlawfully, &c. write a certain false and counterfeit letter, containing divers false matters, which said false and counterfeit letter is directed as follows: "to the honorable j. foley, port admiral, deal, &c. &c. &c. _dover, one o'clock, a. m._ _february , ._ sir, i have the honor to acquaint you that the l'aigle from calais, pierre duquin, master, has this moment landed me near dover, to proceed to the capital with dispatches of the happiest nature. i have pledged my honor that no harm shall come to the crew of the l'aigle; even with a flag of truce they immediately stood for sea. should they be taken, i have to entreat you immediately to liberate them. my anxiety will not allow me to say more for your gratification, than that the allies obtained a final victory; that bonaparte was overtaken by a party of sachen's cossacks, who immediately slaid him, and divided his body between them.--general platoff, saved paris from being reduced to ashes. the allied sovereigns are there, and the white cockade is universal; an immediate peace is certain. in the utmost haste, i entreat your consideration, and have the honor to be, sir, your most obedient humble servant, r. du bourg, _lieutenant colonel and aid de camp to lord cathcart_. "to the honorable j. foley, port admiral, deal, &c. &c. &c." and did then and there send, and cause and procure to be sent, the said false and counterfeit letter to thomas foley, esquire, at deal; he, the said thomas foley, then being the commander in chief of his majesty's ships &c. employed on the downs station, with intention that the said t. foley, should, by telegraph, communicate the false matters in the said false letter, to the commissioners of our said lord the king, for executing the office of lord high admiral, &c. and that such false matters should be promulgated &c. to the liege subjects of our said lord the king. and that said _charles random de berenger_, did also then and there unlawfully &c. assert and report to timothy wright, and other persons, that he, the said _charles random de berenger_, had just then landed and arrived from france, and that the french were beaten, and that said napoleon bonaparte was killed, and that the allies of our said lord the king, were then in paris; and the said _charles random de berenger_, on same day &c. did travel from dover towards london, and did unlawfully &c. falsely assert and report at dartford in the county of kent, and at other places on his way between dover and london, the several false matters and things last mentioned, to divers other of the liege subjects of our said lord the king with intention that the said last mentioned false matters &c. should be believed to be true, and should be generally reported, &c. by the said liege subjects, &c. to whom he asserted the same to divers other of the liege subjects, &c. and more especially, with intention that the said false assertions &c. should reach london, to be reported and rumoured and believed there. and that on the said st february, at the parish &c. aforesaid, at london aforesaid, to wit, at dartford aforesaid, the said _ralph sandom_, _alexander m'rae_ and _henry lyte_, in pursuance &c. of the aforesaid conspiracy did unlawfully &c. hire and take a post chaise to go from dartford, and did go from thence, the said _alexander m'rae_ and _henry lyte_, then and there having white cockades in certain cocked hats, which they wore; and the horses drawing the said post-chaise then and there being decorated with branches of laurel, to and over london bridge, and through the city of london, unto and over blackfriars bridge, and unto a certain place called the marsh gate, in the parish of st. mary lambeth, in the county of surry, with intention thereby to induce the liege subjects, &c. whom they should pass, and who should see them in their route and way from dartford to near the marsh gate, to suppose and believe, and to report and rumour to divers other of the liege subjects, that they the said _ralph sandom_, _alexander m'rae_, and _henry lyte_, were the bearers to the government of this kingdom, of great and important foreign news, highly favorable to the interests of our said lord the king, and his subjects, and thereby to occasion an increase and rise in the prices of the said public government funds, &c. in order and for the purpose that the said _sir thomas cochrane_, _andrew cochrane johnstone_, _richard gathorne butt_, and _john peter holloway_, respectively should then sell and cause and procure to be sold for them respectively to divers subjects, &c. divers large parts and shares of and in the said public government funds &c. at higher and greater prices than they would otherwise sell for, with a wicked and fraudulent intention, to thereby cheat and defraud the said last mentioned liege subjects, of divers large sums of money. and that the said _defendants_, in pursuance and further prosecution of said conspiracy, afterwards, to wit, on the said st february, did, by means of the premises aforesaid, unlawfully &c. cause and occasion a temporary increase and rise in the prices of said funds, &c. and the said _sir thomas cochrane_, _andrew cochrane johnstone_, _richard gathorne butt_ and _john peter holloway_, in pursuance and further prosecution of the aforesaid conspiracy, did on the said st of february, unlawfully, &c. respectively sell, and cause and procure to be sold for them respectively, unto divers subjects, &c. divers great parts and shares of and in the said public government funds and other government securities, (that is to say,) the said _sir thomas cochrane_ £ , omnium. _andrew cochrane johnstone_ £ , omnium, and £ , consols _richard gathorne butt_ £ , omnium, and £ , consols _john peter holloway_ £ , omnium, and £ , consols at and for greater and larger prices than such parts and shares of and in the said public and government funds, &c. would otherwise have sold for, with a wicked and fraudulent intention, then and there to cheat and defraud the said subjects respectively, of divers large sums of money, of the respective monies of the said last mentioned liege subjects, to the damage of the said last mentioned liege subjects, to the evil example &c. in contempt of our said lord the king and his laws, and against the peace of our said lord the king, his crown and dignity. [_second count._]--that the _defendants_ on the said th february, unlawfully &c. to induce the subjects &c. to believe that a peace between our said lord the king and his subjects and the people of france, would soon be made, and thereby to occasion an increase and rise in the prices of the public government funds, and other government securities, and to greatly injure and aggrieve the subjects of our said lord the king, who should on the st february, purchase and buy a part or parts and share or shares of and in the said public government funds, &c. on said th february, with force and arms, &c. unlawfully &c. did conspire &c. together to make and propagate, and to cause and procure to be made and propagated, a false report and rumour, that the french had then lately been beaten in battle, and that said napoleon bonaparte was killed, and that the allies of our said lord the king were then in paris. and that they, the _defendants_, would by such last mentioned false report and rumour induce the subjects, &c. to suppose and believe that a peace would soon be made, and occasion an increase and rise in the prices of the public government funds, &c. and that _sir thomas cochrane_, _andrew cochrane johnstone_, _richard gathorne butt_, and _john peter holloway_, respectively, should then sell and cause, &c. to be sold for them respectively, to divers of the liege subjects of our said lord the king, divers other large parts and shares of and in the said government funds, &c. at higher and greater prices than said parts and shares would otherwise sell for, with a wicked and fraudulent intention to thereby cheat and defraud the said liege subjects, &c. of divers large sums of money. and that on the said st of february the _defendants_, in pursuance of said conspiracy, &c. unlawfully, &c. did cause and procure divers false reports and rumours to be made, spread, and circulated unto and amongst many of the liege subjects, &c. in certain parts of the counties of kent and surry, to wit at dover in the said county of kent, and in and along and near unto the king's common highway leading from dover aforesaid to the said city of london, and also in the said city of london and parts adjacent thereto, that the french had then lately been beaten in battle, and that the said napoleon bonaparte was killed, and that the allies of our said lord the king were then in paris. and that a peace between our said lord the king and his subjects, and the said people of france would soon be made, with intention thereby to occasion an increase and rise in the said funds, &c. in order and for the purpose that the said _sir thomas cochrane_, _andrew cochrane johnstone_, _richard gathorne butt_, and _john peter holloway_, respectively, should then sell and cause and procure to be sold for them respectively to divers liege subjects, &c. divers other large parts and shares of and in the said public government funds, &c. at higher and greater prices than they would otherwise sell for, with a wicked and fraudulent intention to thereby cheat and defraud the said subjects of divers large sum of money, &c. [_third count._]--that the _defendants_ on the said th of february unlawfully, &c. by false reports, rumors, _arts and contrivances_ to induce the subjects of our said lord the king to believe that a peace would soon be made between our said lord the king and his subjects, and the said people of france, and thereby to occasion _without any just or true cause a great increase and rise of the public government funds, &c. and to injure, &c. the subjects of our said lord the king who should_ on the said st of february _purchase and buy any part or parts and share or shares of and in the said public government funds, &c._ then and there, to wit, on the said st of february, unlawfully, &c. did conspire, &c. to make and propagate, and cause and procure to be made and propagated unto and amongst divers of the liege subjects, &c. in the county of kent, to wit at dover, deal, and dartford, and other places in that county, and also unto and amongst divers of the liege subjects, &c. at london aforesaid, and places adjacent thereto divers false reports and rumours that the said napoleon bonaparte was killed, and that a peace would soon be made between our said lord the king and his subjects and the people of france. and that the said _defendants_ would by such false reports and rumours as far as in them lay, occasion an increase and rise in the prices of the public government funds and other government securities, with a wicked intention to thereby greatly injure and aggrieve all the liege subjects of our said lord the king who should, on the said st of february, purchase or buy any part or parts and share or shares of and in said public government funds, &c. to the great damage of all the last mentioned liege subjects, &c. to the evil example, &c. and against the peace, &c. [_fourth count._]--that the said _defendants_ unlawfully contriving, &c. to injure and aggrieve divers of the liege subjects, &c. on the th february unlawfully, &c. did conspire, &c. to write and cause to be written _a certain other false and counterfeit letter_ containing therein divers false matters of and concerning the allies of our said lord the king, and the said napoleon bonaparte and the french people, and to send and cause and procure the said last mentioned letter to be sent to the aforesaid thomas foley at deal, the said thomas foley then and there being the commander in chief of his majesty's ships and vessels employed on the downs' station, with a wicked intention to impose upon and deceive the said thomas foley, and to induce and cause the said thomas foley to communicate the false matters contained in the said last mentioned false and counterfeit letter to the said commissioners for executing the office of lord high admiral of great britain. and also with a wicked intention, that by the means in this count mentioned the said false matters contained in said last mentioned false and counterfeit letter, should be promulgated and publicly made known to the liege subjects, &c. and thereby to occasion _a temporary_ rise and increase in the prices of the public government funds, &c. and to injure and aggrieve all his majesty's liege subjects who should _contract for_, and also, all the subjects, &c. who should _purchase_ any part or parts, share or shares of, and in the said public government funds, &c. _during such temporary rise and increase_ in the prices thereof, to the evil example, &c. in contempt, &c. and against the peace, &c. [_fifth count._]--that the defendants unlawfully contriving, &c. to injure and aggrieve divers of the liege subjects of our said lord the king, afterwards to wit, on the said th february, at the parish and ward aforesaid, &c. unlawfully, &c. did conspire together, to make and propagate, and to cause and procure to be made and propagated unto, and amongst divers of the liege subjects of our said lord the king, divers false reports and rumours _of and concerning the said napoleon bonaparte and the french people_, and thereby to occasion a temporary rise and increase in the prices of the public government funds, &c. and to injure and aggrieve all his majesty's liege subjects who should _contract for_, and also all the liege subjects of our said lord the king who should _purchase_ any part or parts, share or shares of, and in the said public government funds, &c. during such last mentioned temporary rise and increase in the prices thereof, to the evil example, &c. &c. [_sixth count._]--that the _defendants_, on the said th february unlawfully, &c. did conspire, &c. to make and propagate, and cause, and procure to be made and propagated unto and amongst divers subjects, &c. a certain false report and rumour, _that a peace would then be soon made_ between our said lord the king, his subjects, and the people of france, and thereby to occasion a temporary rise and increase in the prices of the public government funds, &c. and to injure and aggrieve all his majesty's subjects who should contract for, and also all the liege subjects, &c. who should purchase any part or parts, or share or shares of and in the said public government funds, &c. during such last mentioned temporary rise and increase in the prices thereof, to the evil example, &c. [_seventh count._]--that the _defendants_, unlawfully contriving, &c. _for their own lucre and gain_, to injure and aggrieve divers of the liege subjects of our said lord the king, on the said th february, unlawfully, &c. did conspire, &c. by divers _false and subtle arts, devices, contrivances, representations, reports, and rumours_, to occasion without just and true cause, a rise and increase in the prices of the public government funds, &c. and thereby to injure and aggrieve all his majesty's liege subjects who should contract for, and also all his majesty's liege subjects who should purchase any part or parts, share or shares of and in the said public government funds, &c. during such last mentioned rise and increase in the prices thereof, to the evil example, &c. [_eighth count._]--that the _defendants_ unlawfully, &c. contriving to injure and aggrieve divers of the liege subjects of our said lord the king, on the th february unlawfully, &c. did conspire, &c. by divers _false and subtle arts, devices, contrivances, representations, reports and rumours_, to induce, cause and occasion, divers and very many of the liege subjects of our said lord the king, _to suppose and believe, without true and just cause, that a peace would soon be made between our said lord the king and his subjects, and the people of france_, to the great and manifest injury of divers and very many of the liege subjects of our said lord the king, to the evil example, &c. _plea_--not guilty. the indictment was removed into the court of king's bench, at the instance of the prosecutors, in easter term. court of king's bench, guildhall, _wednesday, th june, ._ before the right hon. lord ellenborough. _counsel for the prosecution._ mr. gurney, mr. bolland, mr. adolphus. _solicitors._ messrs. crowder, lavie, and garth. _counsel for c. r. de berenger._ mr. park, mr. richardson. _solicitor._ mr. gabriel tahourdin. _counsel for lord cochrane, the hon. a. c. johnstone, and r. g. butt._ mr. serjeant best, mr. topping, mr. scarlett, mr. brougham. _solicitors for lord cochrane._ messrs. farrer and atkinson. _solicitors for the hon. a. c. johnstone, and r. g. butt._ messrs. brundrett, wainwright, and spinks. _counsel for r. sandom, j. p. holloway, and henry lyte._ mr. serjeant pell, mr. c. f. williams, mr. denman. _solicitor._ mr. young. _counsel for alexander m'rae._ mr. alley. _solicitor._ mr. twynam. the jury. thomas brown, church-row, aldgate. } henry septimus wollaston, devonshire-street. } george spedding, upper thames-street. } george miles, gracechurch-street. } john parker, broad-street. } lewis loyd, lothbury. } john peter robinson, austin friars. } merchants. john hodgson, new broad-street. } thomas wilson hetherington, nicholas-lane. } richard hall, lawrence-lane. } richard cheesewright, king-street. } john green, suffolk-lane. } _the indictment was opened by mr._ adolphus. mr. gurney. may it please your lordship. gentlemen of the jury. it is my duty, as counsel for this prosecution, to state to you the facts which i shall have to lay before you, and to apply those facts to the several defendants, and to the charges contained in the indictment, which has been opened by my learned friend; and, gentlemen, i am sure that it is unnecessary for me to request that you will dismiss from your minds every thing that you may have heard upon this subject before you entered that box. it is one of the circumstances which necessarily attends a free press, that many cases which come under the consideration of a court of justice, shall previously have undergone some public discussion; without blame to any one, that will sometimes occur from the nature and publicity of the case itself. it does also sometimes occur, that they who are accused, industriously circulate matters which they consider as useful to their defence; and even on the very eve of trial, force them into public notice. if any thing has fallen under your observation, either on the one side or the other, i intreat you to lay it totally aside; to come to the consideration of this subject with cool, dispassionate, unprejudiced, unprepossessed minds, to attend to the evidence that will be laid before you, and to that evidence alone--by that evidence let the defendants stand or fall. gentlemen, it would be very extraordinary indeed, if it could ever have been supposed by any person, even the most ignorant, that this was not a crime. it would be a disgrace to any civilized country, if its laws were so defective. if that which has been done by these defendants _in conspiracy_, had been done by any one of them _singly_, it would have been unquestionably a crime; but when done _by conspiracy_, it is a crime of a more aggravated nature--_to circulate false news_, much more _to conspire to circulate false news_ with intent to raise the price of any commodity whatever, is, by the law of england, a crime, and its direct and immediate tendency is to the injury of the public. if it be with intent to raise the price of the public funds of the country, considering the immense magnitude of those funds, and, consequently, the vast extent of the injury which may be produced, the offence is of a higher description. the persons who must be necessarily injured in a case of that kind, are various; the common _bona fide_ purchaser who invests his money--the public, through the commissioners for the redemption of the national debt--the persons whose affairs are under the care of the court of chancery, and whose money is laid out by the accountant general, all these may be injured by a temporary rise of the public funds, growing out of a conspiracy of this kind; and, gentlemen, this is no imaginary statement of mine, for it will appear to you to-day, that all these persons were in fact injured by the temporary rise produced by this conspiracy. undoubtedly the public funds will be affected by rumours, which may be considered as accidental; in proportion as they are liable to that, it becomes more important to protect them against fraud. if this had been a conspiracy to circulate false rumours, merely to abuse public credulity, it would not have been a trivial offence; but if the object of the conspiracy be not merely to abuse public credulity, but to raise the funds, in order that the conspirators may sell out of those funds for their own advantage, and, consequently, to the injury of others, in that case the offence assumes its most malignant character--it is cold blooded fraud, and nothing else. it is then susceptible of but one possible aggravation, and that is, if the conspirators shall have endeavoured to poison the sources of official intelligence, and to have made the officers of government the tools and instruments of effectuating their fraud--gentlemen, this offence, thus aggravated, i charge upon the several defendants upon this record, and i undertake to prove every one of them to be guilty. gentlemen, when i undertake to prove them to be guilty, you will not expect that i shall give you proof by _direct evidence_, because, in the nature of things, _direct evidence_ is absolutely impossible--they who conspire do not admit into the chamber in which they form their plan, any persons but those who participate in it; and, therefore, except where they are betrayed by accomplices, in no such case can positive and direct evidence be given. if there are any who imagine, that positive and direct evidence is absolutely necessary to conviction, they are much mistaken; it is a mistake, i believe, very common with those who commit offences: they fancy that they are secure because they are not seen at the moment; but you may prove their guilt as conclusively, perhaps even more satisfactorily, by _circumstantial evidence_, as by any _direct evidence_ that can possibly be given. if direct and positive evidence were requisite to convict persons of crimes, what security should we have for our lives against the _murderer by poison_?--no man sees him mix the deadly draught, avowing his purpose. no, he mixes it in secret, and administers it to his unconscious victim as the draught of health; but yet he may be reached by _circumstances_--he may be proved to have bought, or to have made the poison; to have rinsed the bottle at a suspicious moment; to have given false and contradictory accounts; and to have a deep interest in the attainment of the object. what security should we have for our habitations against the _midnight burglar_, who breaks into your house and steals your property, without disturbing your rest or that of your family, but whom you reach by proving him, shortly afterwards, in the possession of your plate? what security should we have against the _incendiary_, who is never seen in the act by any human eye, but whose guilt, by a combination of circumstances over which he may have had no controul, or part of which he may have contrived for his own security, is as clearly established as if deposed to by the testimony of eye-witnesses. gentlemen, by the same sort of evidence by which in these, and various other cases, the lives of individuals are affected, i undertake to bring home this case to the defendants upon this record. i undertake to shew, that such a conspiracy did exist as this indictment charges; and i undertake to prove every one of these defendants acting in furtherance and execution of the conspiracy, so as to leave no more doubt upon your minds, when you have heard the evidence, that they were all parties to this conspiracy, than if you had witnesses before you who were present with them in consultation, and heard them assign to each man the part which he was to act. gentlemen, in the security in which we now repose, in the triumph in which we are now indulging, it is difficult to carry back our minds to the state of agonizing suspense in which we were at the critical time at which this conspiracy took place. at that time the empire of him for whom europe itself appeared too small, was not confined within the narrow limits of the isle of elba; he had been driven back, it is true, from the extremity of europe into france.--france itself was invaded, and our illustrious allies had made considerable progress towards paris, but they had been more than once repulsed, and one army had, by almost super-human efforts, preserved itself from destruction; but the fortune of war was uncertain; in this age of miracles, no man could tell what would be the final event; and every one was waiting in breathless expectation for the destruction of him (or at least of his power) who had been so long the destroyer of his species. gentlemen, at that most critical moment, when the funds were so liable to be affected by every event of the war, when they were liable to be affected still more by the negotiations at chatillon, which were then pending--at that moment this conspiracy with respect to the funds took place; and you will bear this in mind, gentlemen, that if the false news were believed but for a single hour, the mischief to the public would be done--the object of the conspirators would be accomplished. gentlemen, the first person whom i shall have to present to you, as bearing a principal part in this conspiracy; the main agent in its execution, will be proved to be the defendant, charles random de berenger;--he was a fit person to be selected for the purpose;--he was a foreigner by birth; he had resided long in this country; he would pass very well for an officer; he had been for fourteen or fifteen months a prisoner for debt in the king's bench, or rather within the rules of the king's bench; he would be a convenient man afterwards to convey away; as he would prefer a residence in any other country, because his creditors resided in this. you will find that he made his appearance a little after midnight of sunday, the th of february--the morning of monday, the st of february; at dover; he was first seen in the street, enquiring for the ship hotel; he was shewn to it, he knocked loudly at the door, and obtained admittance; he was dressed in a grey military great coat, a scarlet uniform, richly embroidered with gold lace, (the uniform of a staff officer) a star on his breast, a silver medal suspended from his neck, a dark fur cap with a broad gold lace, and he had a small portmanteau; he announced himself as an aid de camp to lord cathcart, just arrived from paris; that he was the bearer of glorious news, that a decisive battle had taken place, that bonaparte was pursued and killed by the cossacks, that the allied sovereigns were actually in paris, and that now (that most welcome news to the inhabitants of dover) an immediate peace was certain. he desired to have a sheet of paper, that he might write a letter to the port-admiral at deal, admiral foley; paper was furnished, and he sat down to write, and soon afterwards the letter was dispatched to the port-admiral at deal. upon persons coming round him and importuning him with questions, he pretended to be extremely fatigued. he said he had travelled two or three nights. "do not pester me with questions, you will know it to-morrow from the port-admiral." he ordered a post-chaise and four for london, and he offered to pay with some gold napoleons; the landlord of the inn did not know exactly the value of a napoleon, and scrupled to take them, upon which this gentleman, rather inconsiderately, produced from his pocket some one pound bank of england notes, with those notes he paid for his chaise, and he set off for london in the post-chaise and four. when he arrived at canterbury he rewarded his post-boys very liberally; he gave each of them a napoleon. a napoleon, i dare say you know, is worth eighteen or twenty shillings; he ordered horses on to sittingbourn; the same chaise brought him from canterbury to london, and he gave napoleons to all his post-boys. it was difficult to say which was first upon the road, this colonel du bourg or other expresses which had been sent off from dover with this happy news, for as soon as this news was announced all dover was in agitation. post-horses were ordered out, and i believe some of the expresses reached london half an hour before this person himself. gentlemen, it will be necessary that i should read to you the letter to admiral foley, it is dated dover, one o'clock a. m. february , , addressed to the honorable j. foley, port-admiral, deal, &c. &c. &c. signed r. du bourg, lieutenant-colonel and aid de camp to lord cathcart. "sir, i have the honor to acquaint you, that the l'aigle from calais, pierre duquin, master, has this moment landed me near dover, to proceed to the capital with dispatches of the happiest nature. i have pledged my honor that no harm shall come to the crew of l'aigle; even with a flag of truce they immediately stood for sea: should they be taken, i have to intreat you immediately to liberate them, my anxiety will not allow me to say more for your gratification, than that the allies obtained a final victory, that bonaparte was overtaken by a party of sachen's cossacks, who immediately slaid him, and divided his body between them. general platoff saved paris from being reduced to ashes, the allied sovereigns are there, and the white cockade is universal, an immediate peace is certain; in the utmost haste, i entreat your consideration, and have the honor to be, sir, your most obedient humble servant, r. du bourg." a post boy was sent over with this letter to admiral foley; he delivered it to the admiral between three and four o'clock, i think, and nothing but the haziness of the morning which obstructed the working of the telegraph, prevented the news reaching the admiralty, in which case the conspiracy in question, which was effectual to a great degree, would have been complete, and all the expectations of the conspirators fully realized. gentlemen, when colonel du bourg, alias mr. de berenger, arrived at rochester, he saw the landlord mr. wright, he conversed with him a considerable time, and to him he repeated this news. he ordered horses on for dartford, and gave napoleons to the post boys, and when he arrived at dartford, he there repeated his news to the landlord and the waiter, partly in the hearing of the post boys. when he set off from dartford he desired the post boys to drive as fast as possible; they did so for the first three miles; when they arrived at bexley heath, the road being within sight of the telegraph, he spoke to the post boys, and told them they need not drive so fast, that his business was not so pressing, as the telegraphs could not work; they told him they were sure they could not work, that they knew the telegraphs all along the road. in coming up shooter's hill, the post boys alighted from their horses and walked by the side of the chaise. they were naturally very desirous to know distinctly what the news was, and one of them said, "pray sir, what is the news?--oh it is all over--bonaparte is killed--the cossacks fought for a share of his body; he was literally torn to pieces by the cossacks,"--he said, "i landed last night within two miles of dover, and the french boat immediately put to sea; i went to the ship at dover. i wrote a letter to admiral foley, in order that he might forward the news by the telegraph; i was obliged to do that--it was my duty;" and then still more to put them in good humour, he handed out to them some wine, which he had brought from dover.--he said to them, do not talk of this news as you go along--as soon as you have parted with me you may tell who you please; by and by he said, pray where can i get a hackney coach? the first stand, the boy told him, was at the bricklayer's arms--"no, i will not take one there;" then the marsh gate--"very well, i will get one there". when they crossed saint george's fields, the post boy, who every now and then turned round for the gratification of looking at this generous bearer of good news, observed that he pulled up the blind, and seemed to avoid observation. he did not know what his reason might be for that, and it did not strike him till afterwards. they tried to get a hackney coach at the three stags, they could not, and they went on to the marsh gate, there they found one coach, and one coach only; colonel du bourg stepped out of the post chaise into the hackney coach. he gave each of the boys a gold napoleon; he drove off, and away they went, as happy as they could be, to spread every where this very glorious news. this you will find to have been at about nine o'clock in the morning. gentlemen, you may very readily suppose that very soon after ten o'clock, this news reached the stock exchange; whether through the post boys or by the expresses sent up from dover, it did reach the stock exchange at a little after ten o'clock. probably you know that business commences at ten. at ten business commenced as it had left off on saturday; the price of omnium for some time was - / . it began extremely flat at - / --it went on - / --but in about a quarter of an hour, accounts came that an officer from paris had arrived at dover, and had come up in a post chaise and four to government with this news, which was recited in detail. the funds immediately rose to -- - / -- and , and on it went till about twelve o'clock, when no letter coming from the secretary of state to the lord mayor, people began to doubt its truth, and from omnium fell to , and was getting down, when between twelve and one o'clock there came the amplest confirmation. this, gentlemen, you will find to be auxiliary to the main plot, and a very important auxiliary. in itself it would have been absolutely nothing. there drove through the city, a post chaise and four, with three persons in it, two of them dressed like french officers, in blue great coats, with white linings; they wore white cockades, and their horses were decorated with laurel. as they went along they dispersed little billets announcing this news. after a kind of triumphal progress through the city, they turned to the left at bridge street, went over blackfriars bridge, quitted the main road for the new cut, and when they had arrived near the marsh gate, within a hundred yards of the spot at which colonel du bourg had alighted, these three gentlemen got out of their chaise, folded up their cocked hats, put on round hats, and walked off. gentlemen, this you may suppose, indeed we all know, produced an emotion in the city not to be described. there is nothing so contagious as popular feeling, especially on a subject of great public interest. this stamped certainty upon the news; this reached the stock exchange, and the funds, which had begun to droop, revived; omnium rose to , , and - / . thus it went on for a short time, till persons having been sent to the west end of the town, and it being found that no messenger had arrived at the office of the secretary of state with this intelligence, it was discovered that this had been a gross and wicked deception; and the funds returned to very nearly their former level. but there were very large sales made, and of course there were many persons defrauded. the members of the stock exchange felt it, and felt it deeply; and they appointed a committee to investigate this business, and to ascertain who were the parties to this fraud. that committee pursued the investigation with great industry, and they discovered that which i shall lay before you in evidence. as the underplot is the shortest, i may as well dispose of that first.--they ascertained that this second post chaise had come from northfleet, which is, you know, near gravesend. that mr. ralph sandom, who is a spirit merchant, living at northfleet, but who was at that time also like mr. de berenger, a prisoner within the rules of the king's bench, and who kept within the rules just as faithfully as mr. de berenger did, had sent, early in the morning, to dartford, for a post chaise and four, to be sent to him at northfleet, and for four horses to be ready to take him on to town; and that mr. sandom; a mr. alexander m'rae, a person in most desperate circumstances; and mr. lyte, who is, i believe, a little navy agent, and a very poor man, were the persons who had come in this post chaise; and that m'rae and lyte were the two persons who were dressed in the uniform of french officers. gentlemen, they ascertained further, that mr. m'rae resided at a lodging in fetter lane; that on saturday the th of february, he had brought into his lodgings a couple of great coats, blue lined with white, to resemble the coats of french officers; that he had white cockades made up by his wife in the lodging, and upon enquiry being made by his hostess what all this could mean, said, that it was _to take in the flats_. he quitted his lodging in the afternoon of sunday, stating that he was going down to gravesend by water; and he returned about two on monday, after having, as i stated, quitted the chaise at the marsh gate. the great coat was speedily altered, by the white lining being taken out and another lining put in its place, and the white cockades were burnt: and mr. m'rae, who had been in the greatest distress for money, was, in the course of that week, exulting in his success, boasting of the money he had earned by that which he had done; and on being expostulated with on the impropriety of that mode of getting money, said, "if i had not somebody else would." gentlemen, the committee discovered that mr. m'rae was a party to this business at a still earlier period, and that it had been for some time in preparation, that he had on the th (the monday preceding) written a letter to a person of the name of vinn, appointing a meeting at the carolina coffee-house for the next day. on the tuesday vinn met him. mr. vinn speaks french very well, and mr. m'rae explained the business on which he wished to converse with him; the funds were then in a critical situation, it would be a very good thing if he would but personate a french officer, and bring some good news to town, and that a hundred pounds were at his service. mr. vinn felt a little indignant at this proposal being made to him, saying that he hoped what mr. m'rae knew of him would have given him a different opinion of him; but mr. m'rae would not let mr. vinn go without giving him some french phrases, which you will find were the very phrases in these billets thrown out when they passed through the city. it was therefore completely ascertained that m'rae was not only concerned as an actor in this under plot, carried on by the chaise from northfleet to london, but that he had so long before as the tuesday preceding, proposed to vinn to do that which de berenger in fact did. the committee afterwards ascertained, that the immediate employer of the persons in the chaise was mr. holloway, a wine merchant, another defendant, who independently of his concerns with those persons, chose to have a little dealing in the funds himself, he had a small milkscore of about forty-thousand pounds omnium, which he disposed of on that st day of february, at a handsome profit. gentlemen, you will not fail to observe that this part of the plot could have had no effect but for the foundation laid by the appearance of the pretended officer at dover and his journey to london; for a post-chaise coming through the city with white cockades and laurel branches would have had no effect except to excite laughter and derision, but for the preparation made by de berenger in the character of du bourg; and when you find for the purpose of producing the same effect, such a coincidence of plan, and such a coincidence of time, the one the basis and the other the superstructure, although i shall not be able to prove all the parties meeting together, conferring together, consulting together, still it will be impossible to doubt that these are two parts of one whole; that this is, in short, not two conspiracies, but one and the same conspiracy. gentlemen, the enquiry respecting the chaise from dover led to much more important results. it was the first business of the committee to learn to what place this pretended du bourg went in the hackney-coach from the marsh-gate. they found out the hackney-coachman, and he informed them that he was directed by du bourg to drive, and he did drive straight and direct to no. , green-street, the house of lord cochrane, and it is not an immaterial consideration in this matter, a house in which lord cochrane had resided but three days, a ready-furnished house which he had taken of mr. durand, and a person must have been on intimate terms with lord cochrane to know where he resided on monday, lord cochrane having gone into the house only on the thursday evening preceding. the coachman further informed the committee that when he stopped at this house du bourg enquired for some person by the description, as he thought, of captain or colonel, and that the answer given by the servant was, that he was gone to breakfast in cumberland-street. having proceeded thus far, the next thing for the committee to discover was whether lord cochrane was a person who could have any possible interest in the success of this fraud. they pursued their enquiries upon that subject, and they discovered, to their utter astonishment, that this nobleman--this officer highly distinguished in the navy, then lately appointed to an important command, and one should have supposed his whole soul ingrossed in preparation for the active and important service on which he was going--this representative in parliament for the city of westminster, bound by the most sacred of all duties, not to involve himself in any situation by which his honest judgment could be warped, and his parliamentary conduct influenced--they found lord cochrane to have been a deep speculator in omnium; that he had been so for one week only; that on that monday morning he had a large balance on hand, and that on that monday morning he had sold out the whole of that balance, and sold it at a profit. when the committee had learned thus much, they could not but feel that it was impossible that it could be an accidental coincidence, that this impostor, du bourg, should have alighted at the house of a person thus deeply interested in the success of the imposition which he had practised. but their enquiries and discoveries did not end there; they found that lord cochrane had not acted alone in these stock proceedings; that he was connected with two other persons, who were still more deep in them, the one his uncle, mr. cochrane johnstone (also a member of parliament), and the other a mr. richard gathorne butt, formerly a clerk in the navy office. they discovered that these persons were engaged together in speculations of a magnitude perfectly astonishing. i have the statement in my hand; but i do not think it requisite, in my address to you, to go through all the particulars. mr. cochrane johnstone and mr. butt, who had commenced their stock speculations on the th of february, a week earlier than lord cochrane, had dealt much more largely even than he had. their purchases were the same, their sales the same; they seemed in these stock speculations to have but one soul. if one bought twenty thousand, the other bought twenty thousand; if one bought ninety-five thousand, the other bought ninety-five thousand; you will find the act of one the act of the other; and you will find these three persons, lord cochrane, mr. cochrane johnstone, and mr. butt, having on the saturday preceding this monday, a balance amounting in consols and omnium to very nearly a million--reduced to consols, you will find it amount to sixteen hundred thousand pounds; and on the morning of monday, on the arrival of this news, they all three sold--they sold all that they had, every shilling of it; and, by a little accident in the hurry of this great business, they sold rather more. gentlemen, it was discovered still further, that the principal agent in these purchases and sales, was a mr. fearn, a stock broker; that mr. butt was the active manager; that the directions for lord cochrane's purchases and sales were made mostly by mr. butt, and were recognized by his lordship; that the payment for any loss (sustained by either of the three) was made by mr. butt, and the receipt of any profit was by the hand of mr. butt. they discovered that mr. cochrane johnstone and mr. butt, were in the habit of coming every morning at an early hour to visit their broker, mr. fearn; that on the morning in question, they had come at an early hour, in a hackney coach, and that lord cochrane, after having breakfasted in cumberland-street with mr. cochrane johnstone and mr. butt, came in the same hackney coach, at least as far as snow-hill, if he did not afterwards go on to the stock exchange. they discovered, too, that mr. fearn was not the only broker they employed; they employed a mr. smallbone, a mr. hichens, and a mr. richardson; they may have employed twenty others that we know not of, because it has been only by accident that the committee learned their employment of mr. richardson, for mr. richardson not being a member of the stock exchange, the committee had no controul over him to exact information from him. mr. butt had employed mr. richardson on the saturday preceding, to purchase fifty thousand omnium, of which he the same day sold thirty; and so anxious was mr. butt on that saturday to be possessed of as much stock as possible, that he endeavoured to persuade mr. richardson to purchase one hundred and fifty thousand, but mr. richardson trembled at the idea of making so large a speculation, and refused to go beyond the fifty thousand. you have these persons, then, linked together in such manner, as will render them perfectly inseparable in these various stock transactions; having dealt for some little time; having bought and having sold; having this tremendous balance, this world of stock, under which they were, on the saturday evening, bending and groaning, on the monday morning they had disburthened themselves completely of this with a profit of a little more than ten thousand pounds. if the telegraph had worked, that ten thousand would have been nearer a hundred thousand--that the telegraph did not work, was not to be ascribed either to them or to their agent. gentlemen, when all this was ascertained, the committee apprised those who had appointed them of the result of their labours; they printed an account for the information of the members of the stock exchange; they then had some private information, that du bourg really was de berenger; but on enquiry for mr. de berenger, they found he was gone off; they had not, therefore, any positive proof, and on that account they very prudently said nothing upon the subject. when they had printed this information, for the use of their own members only; it did get out, and there were published in the newspapers some accounts of their reports, some of them correct, and some of them incorrect, but sufficient undoubtedly to direct the eyes of all men to these three individuals, lord cochrane, mr. cochrane johnstone, and mr. butt. lord cochrane, mr. cochrane johnstone, and mr. butt, felt that it was requisite for them to give some explanation upon this subject. mr. butt was extremely indignant at suspicions being thrown out respecting him, he abused those who had libelled and slandered him, and threatened prosecution, a threat which he has not executed, nor ever will. mr. cochrane johnstone, too, equally threatened prosecution, and he has equally failed in the execution of his threat; but one fact stated by the committee, roused the indignation of mr. cochrane johnstone. it had been stated by the committee, that whereas mr. cochrane johnstone and mr. butt, had been satisfied before the st of february with doing business at the office of their agent, that on that morning they commenced business at an office, taken by mr. cochrane johnstone for the use of mr. fearn, in shorter's court, throgmorton-street, an office most conveniently situated, just by the side door of the stock exchange itself. this office consisted of three rooms, in one of which rooms were mr. cochrane johnstone and mr. butt; in a second mr. fearn, and in the third a mr. lance, a person also employed by them; and the committee stated, from mr. fearn's information, that mr. cochrane johnstone had taken this office for mr. fearn, even without his (mr. fearn's) knowledge. mr. cochrane johnstone was extremely angry at this; he declared it to be a most unqualified falsehood, and that he was ready to swear positively, that he never had done any such thing; that the office was mr. butt's, and that mr. butt had given it up to mr. fearn; now that would not signify much, for i will shew, that mr. butt and mr. cochrane johnstone are one and the same. gentlemen, i am sorry to say, that after what i have seen of mr. cochrane johnstone's conduct in this transaction, i am not surprised at his denying this, merely because his denial is in contradiction to the fact, but i am surprised that he should dare to deny it, when i have a contradiction not only by a witness, but by a letter under his own hand. i will prove to you, by the owner of the house, that mr. cochrane johnstone did take this office; he not only took this office, but he was desirous of taking the whole house; he had taken the office before the th of february, and on the th of february he called on mr. addis, who had the letting of the house, and he wrote and left on his desk this letter: "sir, i called again upon you to know if you have power to sell the house, part of which i have taken." this is mr. cochrane johnstone, who is ready to swear that he never took any office at all--"_part of which i have taken_." gentlemen, mark the remainder, and apply it to the morning of the st of february.--"_as i find there are several persons in the house at present, which is rather awkward, and makes it too public_--walls have ears." mr. cochrane johnstone and mr. butt did not like that their consultations should be liable to be overheard--their guilt might then be proved by other than circumstantial evidence. "if you have powers to sell, i will immediately treat with you; have the goodness, therefore, to leave the terms with your clerk, or send them to me at no. , great cumberland-street. i will however call again this day, before i return to the west end of the town." gentlemen, that is the letter of mr. cochrane johnstone, and so much for mr. cochrane johnstone's denial of his having taken the office in shorter's court. gentlemen, besides this denial of the fact, and this offer to swear to it, these gentlemen chose to make some criticisms on the report printed by the committee of the stock exchange, and the first criticism was one of great importance.--one person had said, that colonel du bourg got out of the post chaise into the hackney coach, and another person said, he got into the hackney coach having just alighted from the post chaise, and it was supposed that that was a material contradiction. you will find the fact to be, that he stepped from the one into the other. another was, that one person called the great coat, a _mixture_, and another called it _brown_. in truth it was a greyish mixture, a military great coat. another was, that one person had called the lace on the cap _gold_, and another called it _silver_. it happens to be a pale gold, which according to the light in which you view it, will appear like either gold or silver. i will produce to you a fac simile of both coat and cap. but it was felt that these criticisms would not suffice. lord cochrane must account for his visitor, and lord cochrane came forward with a declaration upon this subject, in a manner, which, i confess, appears to me most degrading. if a person of his rank thought fit to give any declaration, i should have thought that the mode of giving it would have been under the sanction of his honor. lord cochrane thought otherwise, and he chose to give it under the half and half sanction of a _voluntary affidavit_. i call it so, gentlemen, for this reason, that although he who makes a voluntary affidavit attests his god to its truth, he renders himself amenable to no human tribunal for its falsehood, for no indictment for perjury can be maintained upon a voluntary affidavit. i wish that none of these voluntary affidavits were made; i wish that magistrates would not lend their respectable names to the use, or rather to the abuse, which is made of these affidavits; for whether they are employed to puff a quack medicine or a suspected character, they are i believe, always used for the purpose of imposition. gentlemen, this affidavit i have before me, and i will prove the publication of it upon lord cochrane, it is thus prefaced: "having obtained leave of absence to come to town, in consequence of scandalous paragraphs in the public papers, and in consequence of having learnt that hand bills had been affixed in the streets, in which (i have since seen) it is asserted, that a person came to my house, no. , green-street, on the st day of february, in open day, and in the dress in which he had committed a fraud, i feel it due to myself to make the following deposition, that the public may know the truth relative to the only person seen by me in military uniform at my house on that day. cochrane." "dated , green-street, march th, ." now comes the affidavit: "i sir thomas cochrane, commonly called lord cochrane, having been appointed by the lords commissioners of the admiralty to active service (at the request i believe of sir alexander cochrane) when i had no expectation of being called on, i obtained leave of absence to settle my private affairs previous to quitting this country, and chiefly with a view to lodge a specification to a patent, relative to a discovery for increasing the intensity of light. that in pursuance of my daily practice of superintending work that was executing for me, and knowing that my uncle, mr. cochrane johnstone, went to the city every morning in a coach, i do swear on the morning of the st of february, (which day was impressed on my mind by circumstances which afterwards occurred) i breakfasted with him, at his residence in cumberland-street, about half past eight o'clock, and i was put down by him (and mr. butt was in the coach) on snow-hill about ten o'clock; that i had been about three quarters of an hour at mr. king's manufactory, at no. , cock-lane, when i received a few lines on a small bit of paper, requesting me to come immediately to my house; the name affixed from being written close to the bottom, i could not read; the servant told me it was from an army officer, and concluding that he might be an officer from spain, and that some accident had befallen to my brother, i hastened back, and found captain berenger, who, in great seeming uneasiness, made many apologies for the freedom he had used, which nothing but the distressed state of his mind, arising from difficulties, could have induced him to do; all his prospects he said had failed, and his last hope had vanished of obtaining an appointment in america, he was unpleasantly circumstanced on account of a sum which he could not pay, and if he could that others would fall upon him, for full £ . he had no hope of benefitting his creditors in his present situation, or of assisting himself, that if i would take him with me, he would immediately go on board and exercise the sharp shooters (which plan sir alexander cochrane i knew had approved of;) that he had left his lodgings and prepared himself in the best way his means allowed. he had brought the sword with him which had been his father's, and to that and to sir alexander he would trust for obtaining an honorable appointment. i felt very uneasy at the distress he was in, and knowing him to be a man of great talent and science, i told him i would do every thing in my power to relieve him, but as to his going immediately to the tonnant with any comfort to himself, it was quite impossible; my cabin was without furniture, i had not even a servant on board. he said he would willingly mess any where; i told him that the ward-room was already crouded, and besides, i could not, with propriety, take him, he being a foreigner, without leave from the admiralty. he seemed greatly hurt at this, and recalled to my recollection certificates which he had formerly shewn me from persons in official situations: lord yarmouth, general jenkinson, and mr. reeves, i think, were amongst the number. i recommended him to use his endeavour to get them or any other friends to exert their influence, for i had none, adding that when the tonnant went to portsmouth, i should be happy to receive him, and i knew from sir alexander cochrane that he would be pleased if he accomplished that object. captain berenger said, that not anticipating any objection on my part from the conversation he had formerly had with me, he had come away with intention to go on board and make himself useful in his military capacity. he could not go to lord yarmouth or to any other of his friends in this dress, (alluding to that which he had on) or return to his lodgings, where it would excite suspicion (as he was at that time in the rules of the king's bench) but that if i refused to let him join the ship now, he would do so at portsmouth. under present circumstances however he must use a great liberty, and request the favor of me to lend him a hat to wear instead of his military cap. i gave him one which was in a back room with some things that had not been packed up, and having tried it on, his uniform appeared under his great coat, i therefore offered him a black coat that was laying on a chair, and which i did not intend to take with me; he put up his uniform in a towel, and shortly afterwards went away, in great apparent uneasiness of mind, and having asked my leave he took the coach i came in, and which i had forgotten to discharge, in the haste i was in. i do further depose, that the above conversation is the substance of all that passed with captain berenger, which from the circumstances attending it, was strongly impressed upon my mind; that no other person in uniform was seen by me at my house on monday, the st of february, though possibly other officers may have called, (as many have done since my appointment;) of this however i cannot speak of my own knowledge, having been almost constantly from home, arranging my private affairs. i have understood that many persons have called under the above circumstances, and have written notes in the parlour, and others have waited there, in expectation of seeing me, and then gone away; but i most positively swear that i never saw any person at my house resembling the description and in the dress stated in the printed advertisement of the members of the stock exchange. i further aver, that i had no concern, directly or indirectly, in the late imposition, and that the above is all that i know relative to any person who came to my house in uniform on the st day of february, before alluded to. captain berenger wore a grey great coat, a green uniform, and a military cap. from the manner in which my character has been attempted to be defamed, it is indispensibly necessary to state that my connection in any way with the funds arose from an impression that in the present favorable aspect of affairs, it was only necessary to hold stock in order to become a gainer, without prejudice to any body; that i did so openly, considering it in no degree improper, far less dishonorable; that i had no secret information, of any kind, and that had my expectation of the success of affairs been disappointed, i should have been the only sufferer. further i do most solemnly swear, that the whole of the omnium on account which i possessed on the st day of february, , amounted to £ , , which i bought by mr. fearn (i think) on the th ultimo, at a premium of - / ; that i did not hold on that day any other sum on account, in any other stock, directly or indirectly, and that i had given orders when it was bought to dispose of it on a rise of one per cent. and it actually was sold on an average at - / premium, though on the day of the fraud it might have been disposed of at - / . i further swear, that the above is the only stock which i sold, of any kind, on the st day of february, except £ in money, which i had occasion for, the profit of which was about £ . further i do solemnly depose, that i had no connection or dealing with any one, save the above mentioned, and that i did not at any time, directly or indirectly, by myself or by any other, take or procure any office or apartment for any broker or other person for the transaction of stock affairs." gentlemen, lord cochrane has complained that he was not called upon by the committee of the stock exchange to give his explanation personally. it appears to me that he has no reason to complain that they did not so call upon him--would that he had been so called upon: what would any man have given to be present to see whether any human countenance was equal to the grave relation of this extraordinary story. let us examine it, lord cochrane tells us that being at this manufactory of mr. king's he received a note, the name of the writer of which he cannot read, yet, that he hastens home directly; engaged as he is in the superintending the making of a lamp for which he had a patent--engaged too in this tremendous stock account, which is at this very moment, under the guardian care of mr. cochrane johnstone and mr. butt, abruptly closing, he instantly quits the city, and hastens home to see a person whose signature he cannot decypher, and when he comes there he finds mr. de berenger to be the writer of the note, and he has all this extraordinary conversation with him about going on board the tonnant to instruct the crew in sharp-shooting, and then when a negative is put upon mr. de berenger's application at least for the present, mr. de berenger tells him he _cannot_ forsooth "_go to lord yarmouth or to any other of his friends in this dress_." why, i beg to know, cannot mr. de berenger go to lord yarmouth or any other nobleman or gentleman in the dress in which he waits upon lord cochrane? if he was dressed as lord cochrane describes, there could be no impropriety; but still more, "_or return to his lodging, where it would excite suspicion_," _coming out_ of his lodging in this dress might to be sure excite suspicion, for persons who saw him might imagine that a gentleman thus dressed was going a little beyond the rules of the king's bench, but how could his _return_ excite suspicion? if he was returning to his lodgings why would he want any other dress? except that he was afraid to return to his lodgings in that dress because it would afford the means of tracing and detecting him. "if i refused to let him join the ship now, he would join it at portsmouth, _under present circumstances however, he must use a great liberty, and request the favor of me to lend him a hat to wear instead of his military cap. i gave him one which was in a back room with some things which had not been packed up._" then we are to suppose that de berenger was satisfied; he had got rid of this cap with the gold border which might excite suspicion, and he was content to go. no says lord cochrane that will not do. "_having tried it_," that is the hat, "_on, his uniform appeared under his great coat, i therefore offered him a black coat that was laying on a chair and which i did not intend to take with me_." we are, i presume then, to understand that he put on the black coat, though that is not expressly stated, "he put up his uniform _in a towel and shortly afterwards went away_." then he was to go off entirely, was he? gentlemen, i am sorry to find that my lord cochrane, filling the high situation that he does, sees nothing wrong in assisting a person within the rules of the king's bench to abscond, for whose stay within those rules sureties have entered into a bond; either lord cochrane's mind has confounded all right and wrong, or what is more probable, he confesses this smaller delinquency to conceal the greater, for i say he would not have made this acknowledgment unless he had to conceal that he lent the dress for another purpose, for which purpose i say de berenger resorted to him, and which purpose was answered by lord cochrane's assistance. another part of this affidavit is very important, "_captain berenger wore a grey great coat, a green uniform, and a military cap._" i will prove to you that the uniform was scarlet; that it was embroidered with gold, and that there was a star on the breast. i will prove that by many persons who saw it, and i will produce it to you to-day. a circumstance is resorted to by lord cochrane, and indeed by his associates, as a defence which affords another proof of the infatuation of guilt. they have thought it a favorable circumstance for them that they sold out their stock early in the day at a small profit; in my mind it is one of the strongest circumstances against them. if they had believed the news would they have sold out early, and at that small profit? why did they so sell out? but because they knew that belief in the news would last but a very short time, and that they must take advantage of it without delay, for when i have stated that ten thousand or ten thousand five hundred pounds was the amount of their profit i have very much understated it, their profit vastly exceeded that, their profit was all they had been saved from losing, they had been that which is well known in the language of the stock exchange, they had been _bulls_ and they had been invariably _bulls_, they had been raising the price by their purchases, their purchases had vastly exceeded their sales, as appears by the amount of the balance, they had gone on plunging deeper and deeper till they were completely out of their depth; the market was flat, if they had sold at - / they would have been losers to a small amount, but unless they had made all mankind as hungry for stock as they were for profit, they could not have got rid of their million of omnium and stock, without an immense loss; and when they tell me they sold at once, i say yes, so you did, that is my argument against you: i say you did not wait half an hour when the news came, that as fast as you found the news operate, the telegraphic communication from shorter's court to the stock exchange took place, mr. fearn was set to work--he was ordered to sell, and he did sell by twenties, thirties, forties, and fifties of thousands, and in the hurry and confusion they were in, one sold ten thousand consols less than he had, and the other twenty-four thousand omnium more than he had; i think therefore this selling early, and selling at a small profit will not much avail them, but very much the contrary. but, gentlemen, it was felt that if the case rested there, they had done very little indeed, because no man could be so infatuated as to suppose that this story of de berenger and his sharp shooters would go down, unless they shewed that de berenger was not du bourg: for, if de berenger was du bourg, it was very easily seen through, and therefore they set up for de berenger, (who was not forth coming to set it up for himself) that best of all defences if true, which is sometimes resorted to in courts of criminal judicature, and is commonly known by the name of an alibi.--it is, i say, the best of all defences if a man is innocent, but if it turns out to be untrue, it is conclusive against those who resort to it. lord cochrane, mr. cochrane johnstone, and mr. butt, published two affidavits of a man and woman of the name of smith, who were the servants of de berenger; the affidavits are of the same manufacture with the others. affidavits are commonly in the third person, "a. b. maketh oath and saith," but i observe all these affidavits, as well lord cochrane's as the rest, begin i a. b. do swear, these affidavits i will read to you, "i william smith, servant to baron de berenger, do swear, that my master slept at home on sunday the th of february, , as i let him in about eleven o'clock at night; that he went out early next morning, as i went into his room between eight and nine o'clock, and found him gone out. i went about nine o'clock, and did not return till three o'clock, being that day at my mothers cleaning some pictures for her, and when i returned, i then found my master at home, and i went to him to ask if he wanted any thing, he desired me to get him some ale and a mutton chop, which i did; i saw his grey military great coat and his green drill dress, and a black coat which i knew was not his, lying upon a chair in the room; he went out that day to dine between five and six o'clock, and came home about eleven that night; he slept regularly at home all that week, until sunday the th, when he went away in the evening, and desired me to carry a box of clothes with him to the angel inn, which i did, and i there left him and have never seen him since, and this is all i know about my master." this, gentlemen, we have too upon the sanction of a _voluntary affidavit_. then comes his wife, "i ann smith, female servant to baron de berenger, do swear, that my master came home about twelve o'clock on monday the st day of february, in a hackney coach,--that i believe he did, he had on a black coat, he had a bundle with him, which to its appearance, contained his grey military great-coat, and green uniform, he went out the same morning before breakfast without my seeing him; and i do further swear, that i made his bed and cleaned his room as usual, on the st day of february, which had been slept in: he always slept at home regularly until sunday the th of february, and he went away that day, and i never have seen him since." now, gentlemen, if this be true, to be sure it is idle to talk of mr. de berenger having been at dover on that night; he could not have been at dover, and at the same time sleeping in his bed within the rules of the king's bench prison. these affidavits were put out as complete and conclusive evidence, that all the surmises of du bourg and de berenger being the same person were absolutely mistaken, that the visitor of lord cochrane, mr. de berenger was not, and could not be the impostor colonel du bourg. gentlemen, at that time it was supposed mr. de berenger, was safe out of the kingdom, and that no contradiction of these affidavits could ever take place; and that being supposed to be the case, these parties grew very bold and there was a good deal of vapouring. mr. butt wanted his money. the stock exchange committee came to this resolution, and it appears to me to be most honorable conduct, they resolved, not that the agreements of that day should be cancelled, but that an account should be taken of the profit made by those persons, who, in these extraordinary circumstances, had attracted suspicion to themselves. that that money should be paid into the hands of trustees, to await the result of the investigation, and if the suspicions were cleared up, they should have it, if not, that it should be disposed of, in a way that could attach no motive of interest whatever to the stock exchange or to their committee. upon this resolution, £ , , the profit made by lord cochrane, mr. cochrane johnstone, and mr. butt, were paid into the hands of trustees, to wait the event. mr. butt was not satisfied with this arrangement, and he was clamorous for his money. they said, "wait a little, mr. butt, you shall have it presently, if you are entitled to it."--"no," he says, "give me my money."--"it is perfectly safe, mr. butt, for your own honor and character's sake wait a little."--no reply, but "the money--give me the money." _----populus me sibilat; at mihi plaudo ipse domi, simul ac nummos contemplor in arcâ._ gentlemen, that was the consolation to which mr. butt looked, for the contempt to which he found his conduct had exposed him;--that consolation he will not have--he will have conviction and shame, but he will not get the money. gentlemen, the complete developement of this business, however, now approached. in the beginning of april, mr. de berenger was heard of at sunderland, endeavouring to get out of the kingdom. a warrant had some time before issued from the secretary of state for his apprehension; and most fitly had it been issued, for though mr. de berenger, as an alien, had a licence to live in any part of great britain he had no licence to go out of it; and he had abused the privileges of an alien, by having attempted a gross imposition on a high naval officer of the country: and information being given to the officer, who had had that warrant in his possession for three weeks, he set off to sunderland after him. he found he had gone from thence to newcastle, from thence to glasgow, and from thence to leith; and at leith, on the th of april, he apprehended him. he was brought to london, and arrived in london on the th, and then on being shewn to various persons who had seen him in the course of his journey, he was identified by every one of them as du bourg;--by persons at dover,--by persons at dartford,--by the drivers,--by the coachman,--and above all by a very important person in this transaction, he was identified by a mr. solomon.--and i will tell you who mr. solomon is.--an account of the dress of colonel du bourg having been published, the public attention was drawn to that circumstance, and in the latter end of march a fisherman in dredging in the thames a little above london bridge brought up from the bottom a bundle (which had been sunk by pieces of lead) containing a scarlet aid de camp's uniform cut in pieces, and a star and badge which identified it beyond contradiction, and upon this being advertised, a mr. solomon, an army accoutrement maker, who has one shop at charing cross and another in new-street covent garden, came forward and identified these as the cloaths which, together with the grey coat and the military cap, he had sold to a gentleman on saturday the th of february; the gentleman was very liberal in his purchases and said that all these things were to be sent into the country for a person to perform the part of a foreign officer. mr. solomon said perhaps sir you had better take them on hire. no. he was not disposed to do that, he would rather purchase them, and he did purchase them, and he paid for them in one pound notes and took them away in a hackney coach. on mr. solomon being taken to see mr. de berenger he recognized his person as the person who had so bought the clothes and paid for them. gentlemen, what now becomes of these affidavits and of those who made them? what becomes of this alibi for mr. de berenger? what becomes of the affidavits of his servants smith and his wife? what becomes of lord cochrane swearing as he does to his green coat? why do persons resort to falsehood, but because truth convicts them? if any person who is found in suspicious circumstances, and is accused of the highest offence known to the law, resorts to lies to excuse himself, his life pays the forfeit, for no man resorts to lies unless he knows that the truth is absolute conviction: why have these persons thus involved themselves deeper, but because, when they found detection approaching them, they wished to ward it off, careless what were the means, careless who was the instrument, careless too who was the victim. gentlemen, suppose i were to rest my case here, and were to call upon my learned friends to answer this case, i beg to know what answer they could give? what are they to say for this impostor du bourg, this real de berenger, resorting to the house of lord cochrane thus deeply interested in the success of this fraud? thus linked inseparably with two other persons equally interested in the success of the fraud, who, if a different kind of news had arrived that day, would have been absolutely ruined: for if on the st of february that news had arrived, which just a month after did arrive of the rupture of the negociation at chatillon, there would have been such a fall in the price of the funds that these three persons would have been losers to the amount of upwards of one hundred and sixty thousand pounds. what will my learned friends say for persons thus circumstanced, thus involved in suspicion, thus by falsehood and by moral perjury, though not legal, endeavouring to defend themselves? will my learned friends to day call these smiths? will they put these persons whom they have made commit this moral perjury into that box and expose them to the charge of legal perjury? if they do not put them there they "die and make no sign;" and, if they do i think i shall be able to shew you who manufactured these affidavits, and how these servants, the smiths, have been dealt with. i will undertake to prove out of their own mouths that their master was from home that night instead of being as they pretend, in his bed. but, gentlemen, when my learned friends find it impossible to stand upon the ground which their clients have before taken, perhaps they may say, for in the distress of their case i do not know what may not be said;--well, admitting that de berenger was du bourg, are we to infer from his visit to green-street that lord cochrane and he were thus criminally connected?--why you must infer the contrary; it is a proof of innocence, for if they had been so connected, de berenger would not have been such a fool as to pay his first visit to lord cochrane, he would have gone to any other house rather than to lord cochrane's. gentlemen, that argument will not assist my learned friends, for it is too much to ask credit for rational conduct in those who cannot act criminally without acting irrationally. they who contrive schemes of fraud cannot always provide for all possible events. no, gentlemen, it is the order of providence, in mercy to mankind, that wickedness should be defeated by its own folly. when the mind is in disorder the course is not straight and even, but irregular and wavering, it is detected by its obliquity: it is by the winding of the course that you discover you are in the path of the serpent "_quem deus vult perdere prius dementat_," is a maxim which comes down to us sanctioned by the experience of all ages; and no man who has not slept for the last two years, can hesitate to set his seal to its truth. gentlemen, it is as true of stock-jobbing conspirators as it is of those who have lately been entrusted with the destinies of empires. there is always something omitted, the omission here was this; in settling their plan of operations they had forgotten to provide where de berenger should resort on his arrival in town, and on his way his heart failed him, as to going to his own lodgings; he dared not enter into his own lodgings in a dress, which dress would lead to detection, and he therefore drove to lord cochrane's to get rid of his dress; and there he, by lord cochrane's assistance, did get rid of it; he procured a round hat and a black coat, and then went confidently and safely home to his lodgings, exempt from observation and suspicion. but, gentlemen, i have to tell my learned friends, that if they could dispose of all this, their task would be but just beginning. you will naturally ask, was de berenger a person known to the cochranes?--can it be shewn from any other source, that they had ever been together before? gentlemen, i will shew you that de berenger was extremely well acquainted with them; that he was a visitor at lord cochrane's, and a visitor at mr. cochrane johnstones; that he made it his boast that he was on very familiar terms with them, and that he had given them important assistance in stock-jobbing transactions, and that he expected to be handsomely rewarded for his services, for that by his means they would get a great deal of money by these stock-jobbing transactions. i will prove this to you by more than one witness. i will prove their acquaintance, if necessary, by persons even of mr. cochrane johnstones family. gentlemen, my proof does not end there. if mr. de berenger was the hired agent of these persons, for the purpose of committing this fraud, what would you expect?--why that after they had used him they would pay him and send him away.--i will prove to you, that they did so pay him, and that they did send him away. you have learned from these affidavits of the smiths, (which so far are true,) that on the evening of sunday the th, (which was the sunday after he was at dover,) he quitted his lodgings, and was seen no more. who do you think was his visitor on saturday the th?--mr. cochrane johnstone. on saturday the th mr. cochrane johnstone came to his lodgings, and left a letter for him; that letter, no doubt, hastened his departure, and off he went. he was taken at leith, and there were found in his possession certain books and papers and bank notes; these bank notes mr. de berenger has desired to have returned to him. the prosecutors thought that one bank note for one pound was as good as another bank note for one pound; and in order that mr. de berenger might not complain of being cramped in pecuniary matters, they gave over to him notes of corresponding value. but that does not satisfy mr. de berenger; he wants the very identical notes taken from him; he has contracted an affection for them i suppose, on account of their having been his travelling companions. they were his solace in a long journey, and the support to which he looked in future in a foreign land. what harm can these notes do to mr. de berenger?--he is much too deeply implicated in this to make the presence or the absence of these notes of the least consequence to him. who can be so blind as not to see, in the _pretended anxiety_ of mr. de berenger for these notes, the _real anxiety_ of his fellow conspirators; who having made him their instrument in the fraud, wish to make him their instrument in the destruction of the evidence. gentlemen, there have been differences of opinion on the subject of bank notes as a circulating medium, but there can be no difference of opinion as to their being most admirable detectors of fraud. i have these bank notes here, and you will find that the fears of these defendants are well founded, for they furnish conclusive proofs of their guilt. i will read to you first, however, a memorandum of mr. de berenger's, in a little book, which was found in his letter-case; from this he appears to have written on the st of march, a letter to "c. j." which i take to be cochrane johnstone; there are other initials mentioned in the same page, as "w. s." which i take to be his servant, william smith; and "g. t." which i presume to be gabriel tahourdin, his attorney. the name of mr. tahourdin reminds me of something which i had forgotten to mention. the sureties for mr. de berenger keeping within the rules of the bench, were a mr. cochrane, and mr. gabriel tahourdin, his attorney, and also the attorney of mr. cochrane johnstone, they were bound in a penalty of four hundred pounds for mr. de berenger keeping within the rules of the king's bench, mr. de berenger absconded and left them liable to the penalty of their bond; and i cannot sufficiently admire the good nature of mr. gabriel tahourdin, who not only has forgiven him for leaving him in the lurch, but actually defends him to-day, and is also one of his bail on this indictment. gentlemen, there are some parts of this memorandum which i cannot interpret; perhaps mr. cochrane johnstone will give us the letter, and that will supply the explanation. it begins, "to c. j. by march st, , £ , £ to , assign one share of patent, and £ worth shares of mr. de beaufain, at messrs. h. to their care." now comes the important part; i should tell you, gentlemen, that lord cochrane, mr. cochrane johnstone, and mr. butt, allege that their gains were not quite so great as the committee of the stock exchange estimate them to have been. they say, that the gains of the three were but £ , of which lord cochrane's share was £ , and mr. cochrane johnstone's and mr. butt's were £ . mr. butt was the person who transacted the business, being more a man of figures than the other two, and acting as their agent, he had rendered his account to mr. cochrane johnstone; and it should seem as if mr. de berenger's compensation was a per centage upon their gains, for he writes thus: "believe, from my informant, £ , , instead of £ ;" he thinks their profit was four times as much as they say; "suspicious that mr. b." who can that be except mr. butt? "does not account correctly to him as well as me--determined not to be duped--no restrictions as to secrecy, requesting early answer." these are evidently the heads of a letter which he has written to mr. cochrane johnstone. there are other notes of letters to mr. tahourdin and william smith, giving directions, which plainly indicate that he was a man quitting this country never to return. gentlemen, there were found i have told you, certain bank notes, and a memorandum book, and you will find in this memorandum book there are the figures and summed up together, making £ . you will find that he must have received about that sum from lord cochrane, mr. cochrane johnstone, and mr. butt, he accounts here for the expenditure of a considerable part of it, and as you go along with me, you shall be able to account for it: so here is w. s. that is william smith, £ , w. s. again, £ and so on, with names and sums altogether amounting to £ , and then there is a statement of expences on his journey: he appears from both to have had in his hands £ . from whom do you think he had it? from his associates in this transaction, lord cochrane, mr. cochrane johnstone, and mr. butt; we have traced the notes up to every one of them. i shall be enabled to shew these persons actually paying him this very money, and when? between the time of his transaction and his absconding. i will shew you that mr. fearn on the th of february, drew a check on bond and company for £ s. payable to mr. butt, that that was paid partly in a fifty pound bank note, that bank note was found in the possession of mr. de berenger when he was taken at leith. on the th of february, mr. smallbone drew a check on jones, loyd, and company for £ . s. d. made payable to a number, but actually given by him to lord cochrane, that was paid in a two hundred pound note, two one hundred pounds, a fifty pound, some small notes, and the fraction in cash. the two hundred pound note was by order of mr. butt, exchanged by christmas (a clerk of fearn's) at bond's, on the th of february.--mark the day, gentlemen, the thursday after this fraud, for two £ notes, those two £ notes this same clerk of mr. fearn's carried to the bank, exchanged them for two hundred notes of one pound each, brought them back and gave them to mr. fearn, who put them into the hands of mr. butt; and, as if these persons had been anxious to link themselves to each other inseparably, mr. butt, in mr. fearn's presence, handed them over to mr. cochrane johnstone. gentlemen, of these two hundred notes, i will shew you that eleven were passed at hull, mr. de berenger having been at hull at that time; that seven were paid by him at hull, that seven more have come into the bank from that country, marked with de berenger's name, and that sixty-seven of them were found in mr. de berenger's writing desk at leith. gentlemen, i told you that there were two other notes for £ each. at the same time that christmas went to the bank on the th, mr. lance, who was another of their agents, went to the bank, and immediately after christmas (for the numbers follow each other in the bank books) for the other two notes of £ each, he got two hundred notes also of one pound each, and he gave them to mr. butt. gentlemen, of those two hundred notes, forty-seven have come into the bank with de berenger's name upon them, and forty-nine more of them were found in mr. de berenger's writing desk. i mentioned to you that another note given in payment of this check to lord cochrane, was one for fifty pounds,--that bank note of fifty pounds, i will prove lord cochrane himself paid away to his own coal merchant. then, gentlemen, there is another check paid the th of february, , on prescott and company by lance, for £ . s. d. made payable to mr. butt, this was paid in a bank note for fifty pounds, another for forty pounds, and the remainder in small notes. in the memorandum book, there is an entry to s. £ importing that he had given to smith £ . i will prove that smith paid to mr. seeks that same note for fifty pounds, and the forty pound note i will prove that de berenger paid at sunderland to mr. bray, the rest we are not able to trace: add these sums together, they amount to the £ , and the £ , the very figures entered in mr. de berenger's memorandum book, which memorandum book was found in his writing desk when he was taken. gentlemen, when i thus shew de berenger, who quitted london on sunday the th of february, having accomplished this fraud on monday the st, thus possessed of notes of this large value, in this great number, which were in the hands of these defendants on thursday the th; are you not just as certain that he received those notes from these defendants as a reward of his criminal service, as if you had been yourselves by, seen the notes paid, and heard the reason assigned for which they were paid. it was stated in the newspapers, that some of the notes found on de berenger, had been in the hands of mr. butt, upon which mr. butt directly addressed this letter to the morning chronicle, which appeared on the th of april. "sir, having read in several papers, a paragraph mentioning that bank notes were found in the trunk of captain de berenger, which were in my possession, and were paid to me by mr. fearn, one of my stock brokers, i think it proper in answer thereto, to say, that as the circumstances will be more fully discussed at a proper period, your astonishment will cease to exist when you see in what manner captain de berenger became possessed of the notes in question." then mr. butt knows in what manner de berenger became possessed of these notes, i call upon mr. butt to tell you how they came into de berenger's possession; my learned friends will hereafter have to inform you. and, gentlemen, you will require something more than my friend's statement, for the statement of counsel you know, is from the instructions of the client, and the instructions of the client may deserve no more credit than a _voluntary affidavit_. i call upon mr. butt to shew that by evidence, and if he does not shew you that those notes came into the hands of de berenger from some other quarter, for some other reason as a reward for some other service, it is impossible for you to resist the conclusion that they were the reward of de berenger, for the guilty services which he rendered in this fraud; and if so, it was a reward from lord cochrane, it was a reward from mr. cochrane johnstone, it was a reward from mr. butt, they are one and the same, there is an identity between these three persons that hardly ever existed, they have but one mind, they are inseparably connected. gentlemen, i have to apologize to you for having in this large mass of matter omitted one thing, i stated that i should prove to you that mr. cochrane johnstone had called at the house of de berenger the day before he finally went off, i shall prove that by mrs. davidson, with whom de berenger lodged, and i shall, by her evidence and that of her husband, falsify the smith's affidavits, for i will shew by them that on the night in question de berenger slept out, and that the fact of his sleeping out was known to smith and his wife, who have made the affidavits. now, gentlemen, it appears to me that i have done a great deal more than sufficient to prove these persons guilty, but they are never contented with giving evidence against themselves; upon the arrival of de berenger in london they began to apprehend that the hour of detection drew near, and that they must strike a bold stroke to ward off the blow, and on the th of april, mr. cochrane johnstone writes a letter to the chairman of the committee of the stock exchange which i will read to you--"sir, i have this moment received a letter, of which the inclosed is a copy, and lose no time in transmitting it to you, for the information of the gentlemen composing the stock exchange committee; from the bearer of the letter i am given to understand that mr. macrae is willing to disclose the names of the principals concerned in the late hoax, on being paid the sum of £ , , to be deposited in some banker's hands in the names of two persons to be nominated by himself, and to be paid to him on the conviction of the offenders. i am happy to say that there seems now a reasonable prospect of discovering the author of the late hoax, and i cannot evince my anxious wish to promote such discovery more than by assuring you that i am ready to contribute liberally towards the above sum of £ , and i rest assured that you will eagerly avail yourselves of this opportunity to effect the proposed discovery, and an object you profess to have so much at heart, by concurring with me in such contribution, i have the honor to be, sir, your obedient humble servant, a. cochrane johnstone." and then there is mr. m'rae's letter inclosed, addressed to mr. cochrane johnstone. "sir, i authorize the bearer of this note to state to you that i am prepared to lay before the public the names of the persons who planned and carried into effect the late hoax practised at the stock exchange the st of february, provided you accede to the terms which my friend will lay before you, i am, sir, your obedient servant, a. m'rae." mr. m'rae's friend must have been the bearer of some message, for you observe that mr. cochrane johnstone's letter states more than mr. m'rae's letter offers, mr. cochrane johnstone does not receive an answer, and that he considered as very ill treatment. six days afterwards he writes another letter, "sir, i have to request that you will be so good as to inform me what are the intentions of the stock exchange on the subject of the letter which i addressed to you, relative to the proposal of mr. m'rae; lord cochrane, mr. butt, and myself are willing to subscribe £ , each, in aid of the £ , required by mr. m'rae." gentlemen, these letters call for more than one observation; i cannot forbear to make one upon the term which mr. cochrane johnstone employs to describe this transaction--"a hoax," a mere joke, a matter of pleasantry. gentlemen, a young, a giddy, an unthinking and careless man, who had no concern in the transaction, and who had never been suspected to have had any, might perhaps, in conversation, make use of that term; but mr. cochrane johnstone is not young, he is not giddy, he is not unthinking, he is not inexperienced, he has seen much of the world, he is a cautious man, he is a man of high and noble family, he knows that he is suspected of having been a party in this transaction, and yet he calls it a hoax! i beg to know what word in mr. cochrane johnstone's vocabulary is to be found to express fraud? i presume he would call obtaining money by false pretences, an indulgence of the imagination, and playing with loaded dice, a mere exercise of ingenuity. is it possible for any innocent man, situated as mr. cochrane johnstone then was, to describe this foul fraud by the name by which mr. cochrane johnstone here describes it? but, gentlemen, look at the proposal itself; what must mr. cochrane johnstone have thought of the stock exchange committee? surely he must have thought that they were selected for their extraordinary gullibility, when he made this proposal to them. undoubtedly they would have had no objection to the assistance of an accomplice, but it must not be an accomplice chosen by his associates. no, gentlemen, an accomplice chosen by his associates is not chosen to divulge, but to suppress the truth. i should have thought that mr. m'rae, knowing that they had complete proof against him--which had been obtained at a cheaper rate than £ , might have made a more moderate proposal. i should have thought that impunity for himself, which is the common price of an accomplice, would have been sufficient to have had the evidence of mr. m'rae, but mr. m'rae's price is ten thousand pounds; his worthy companions are willing to contribute three--that is, they will give him three thousand, and will obtain for him seven thousand more; and i have no doubt, that if the offer had been accepted, mr. m'rae would very honestly have earned the whole, and have duly recollected to whom he was obliged for it. gentlemen, when lord cochrane, a few years ago, was preparing for an attack upon the french fleet in basque roads, suppose the french admiral had sent this letter to him:--sir, you are preparing to attack me to-morrow, the bearer is the best pilot on our coast, i should be sorry that you should run upon a rock, he will pilot you safely, do but accept his services; but as his skill is great his price is high--he requires ten thousand pounds; but so anxious am i for the success of your enterprize, that i will give him three if you will but give the other seven. gentlemen, this is the modest proposal which mr. cochrane johnstone makes to the committee of the stock exchange; and when he has so done he affects to be extremely angry that the committee do not accept it.--gentlemen what can be said more; what men would have resorted to this expedient but men who felt that they were on the eve of detection, and who tried this desperate expedient to see whether they could ward it off. gentlemen,--i believe i have now arrived at the end of my long trespass upon your attention. survey the whole of these transactions. you find that the principals,--those who were to benefit above all others, were the cochranes and butt; holloway in a smaller degree, but still not slightly;--de berenger the principal agent;--the others, subordinate agents, who could have done nothing unless the foundation had been previously laid by de berenger, in the character of the officer from dover; his news had had its effect upon the funds even before the second arrived. though it cannot be shewn, as in many cases it cannot, that these parties met and conferred and assigned to each his respective part, yet if you find a coincidence in object, and a coincidence in time; if you find the mode of execution precisely the same, is it possible to doubt that these underplotters were the agents of the great conspirators;--that the great conspirators were the authors of the plan, and that the others were executing their subordinate part? gentlemen, i have given you the best assistance in my power to understand and apply the evidence which will be laid before you. they whom i represent, have no wish but that justice should be done; they have investigated this subject with great care, with great assiduity, with great diligence, with great anxiety. they have had no personal difference with any of these defendants; they have never come in collision with them, to have the smallest possible difference; they have no wish but justice, and i am sure that at your hands they will attain that justice; and your verdict to day, (which i am sure after you shall have heard the whole of this case, will be a verdict of guilty,) will be a most salutary verdict:--it will shew the world that as there is no man beneath the law, so there is no man above it. it will teach evil minded persons, the absurdity of expecting that schemes of fraud can be so formed as to provide for all events. it will teach them that no caution can insure safety: that there is no contrivance, that there is no device, no stratagem, which can shield them from detection, from punishment, and from infamy. evidence for the prosecution. _john marsh sworn._ _examined by mr. bolland._ _q._ i believe you keep the packet boat public house at dover? _a._ i do. _q._ was your attention called to any thing early on the morning of the st of february? _a._ no more than a gentleman was knocking at mr. wright's door of the ship inn, at mr. wright's fore door. _q._ what time? _a._ some time about one, or a little after one, between one and a quarter after one. _q._ did you go out upon hearing that? _a._ i did. _q._ did you take any light with you, or did you go without one? _a._ i went without a light. _q._ upon going out whom did you find at mr. wright's door? _a._ some gentleman there. _q._ what was his appearance? _a._ he appeared to be a gentleman. _q._ what was the appearance of his dress? _a._ he had on a grey greatcoat and a uniform coat under it. _lord ellenborough._ was there light enough by the moon or the stars for you to see this? _a._ after i got to the door, i called to a gentleman in my house to bring two lights across, when i had the two lights, the gentleman was in the passage. _mr. bolland._ do you mean the gentleman you had seen at the door? _a._ yes; he had a star on his red coat. _lord ellenborough._ that coat you describe as a uniform coat, was a red coat? _a._ yes it was. _mr. bolland._ that was under the great coat? _a._ yes. _q._ will you look at this star, (_shewing it to the witness_,) and tell me whether it was like that? _a._ that i cannot tell, it was something similar to that. _q._ had he any other ornament? _a._ not to my knowledge. _q._ did you say any thing to him or he to you? _a._ he was very anxious for a post chaise and four. _q._ did he apply to you for that? _a._ no not to me in particular. _q._ who had come down to him? _a._ the porter at the ship. _q._ had you any conversation with him? _a._ he wanted an express horse and a man to send to the admiral at deal. _q._ did all this pass in the passage, or had you proceeded further? _a._ it passed in the passage. _q._ did he proceed into the house? _a._ i asked him where he came from, and he told me he was the bearer of the most important dispatches that had been brought to this country for these twenty years; i asked him where he came from; he told me from france. i asked him where he landed, he told me on the beach, and he begged of me to get a post chaise and four for him; and then i went and called mr. wright of the ship inn; after i came down from calling mr. wright, he wanted pen, ink, and paper. _lord ellenborough._ he went into the ship inn, did he? _a._ i shewed him into a room of the ship inn. as soon as mr. wright came down stairs, mr. wright gave me a sheet of paper, and pen and ink, which i carried into the room. i gave it to him, and he began to write upon it. _q._ you saw him write upon it? _a._ i did. he called for a bottle of madeira, and something to eat. i asked him whether i should call the collector of the port; i told him that it was his business to see such people when they landed; he made answer to me, that his business did not lie with the collectors; then mr. wright came to him, and i had no more conversation with him. _mr. bolland._ you say two candles were brought to you? _a._ yes. _q._ where were those candles placed? _a._ on the table where he was writing, one on each side of him. _q._ had you an opportunity from the situation of them of observing his person and face? _a._ yes, i think that is the person, (_pointing out mr. de berenger_.) _mr. gurney._ i will thank mr. de berenger to stand up. _mr. park._ not unless his lordship desires it he need not stand up. _lord ellenborough._ he will make his election whether he will stand up or not. _mr. park._ he is not to be shewn about like a wild beast as he has been. _mr. bolland._ who else was there? _a._ a gentleman of the name of gourley, and another of the name of edis. _q._ did you see another person there of the name of st. john? _a._ i did not know him, they say there was such a person there. _q._ was there another gentleman in the house? _a._ yes there was. _q._ did you go away or remain with him? _a._ i went to get the horses ready for him with all possible dispatch. _q._ did you see him get into the chaise? _a._ i saw him after he was in. _q._ did any thing more pass in your presence? _a._ no more than that he told the two postboys he would give them a napoleon each. _q._ did you observe how his head was dressed? _a._ he had a german cap on with a gold fringe on it or silver; i did not pay that attention to it to say which, it had gold lace round the bottom part of it. _q._ was it such a coat as that, (_shewing a grey coat to the witness_.) _a._ yes, such a color as that. _q._ and such a cap as that, (_shewing a fur cap to the witness_?) _a._ such a cap; but whether that was the cap i did not pay attention. _q._ have you told his lordship all that you saw and heard? _a._ yes. _q._ did he tell you how he got to the beach? _a._ no, he told me he landed on the beach. _cross-examined by mr. park._ _q._ what are you to this ship inn, i do not quite understand? _a._ i live opposite. _q._ are you any way connected with the ship inn? _a._ not in the least. _q._ how came you, hearing a knocking at mr. wright's ship inn, particularly to get up? _a._ i was up. _q._ what had you to do with the ship inn, that because a man is knocking at the ship inn door you light candles at your house and carry over? _a._ i went across to see who the gentleman was. _q._ merely curiosity? _a._ mere curiosity. _q._ and from the same spirit of curiosity you lit two candles and brought them over to the ship inn? _a._ i told a person to bring them over. _q._ was it very beautiful moonlight that night? _a._ no it was not moonlight. _q._ was there any moon that night; had there been that night at all? _a._ i did not pay that attention to the night to say. _q._ it was beautifully starlight i suppose. _a._ i do not know, i did not pay that attention. _q._ was it a foggy night? _a._ that i did not look after. _q._ you will see by the almanack it was new moon the night before; you did not observe whether it was moonlight, starlight, or foggy? _a._ no. _q._ you found he had got into the passage of the house when you got the candles? _a._ yes. _q._ who let him in? _a._ the boots. _q._ did you see him? _a._ yes in the passage. _q._ how long did you converse with him about the news that you say he said was greater than had ever been heard of for these twenty years from france? all that passed in the passage? _a._ yes. _q._ how long a time might you be in the passage? _a._ not longer than five minutes before i went to call mr. wright. _q._ do you mean you were with him only five minutes before you went up stairs to call mr. wright, or altogether? _a._ altogether i suppose about that, i cannot speak to a minute; but he was in great haste to get away. _q._ how long do you think this person was altogether at mr. wright's? _a._ i should think not more than twenty minutes. _q._ where were the candles all this time you were in the passage with him? _a._ i had them in my hand. _q._ what did you do with them when you went up to mr. wright? _a._ i left them with him in the parlour; boots got me a candle. _q._ you held the candles in your own hand while you remained in the passage? _a._ yes, while the boots unlocked the parlour door, and i went and put them on the table. _q._ before you went up stairs? _a._ yes. _q._ had the person who you say was this gentleman gone into the parlour before you went up stairs? _a._ yes he had. _q._ i take for granted when you came down stairs and mr. wright got the paper you did not go in again? _a._ no; he wished me gone, and i did not go in again. _q._ then altogether, except for seeing him for five minutes in the passage, and you going into the parlour for the short time you did, and afterwards when you saw him in the post chaise, and when he offered the postboys a napoleon each you did not see him? _a._ no. _q._ you had nothing to do personally with this inn called the ship? _a._ no, i keep the packet boat opposite. _q._ do you know whether there had been a large company at the ship inn that day? _a._ i do not know. _q._ you had not seen mr. wright the innkeeper late in the evening of that day, had you? _a._ no. _q._ had you ever seen this person who you say is the gentleman sitting before me before that time? _a._ not before, nor yet since, till to-day. _q._ and from this slight observation of him, which you have described, you take upon you confidently to swear that this person sitting before me is the man? _a._ yes. _q._ never having seen him before nor again till this day? _a._ i am very well satisfied. _q._ you are very easily satisfied i see; were you ever examined upon this subject before? _a._ mr. stowe, the collector-- _q._ i do not ask as to mr. stowe, but were you ever examined in london before? _a._ no, never. _q._ mr. stowe is the only person who has examined you upon this subject till my learned friend has done it now, and i cross-examine you? _a._ yes. _re-examined by mr. bolland._ _q._ before you sent for the lights, had the gentleman told you what his business was, and that he had landed from the beach? _a._ he told me before i sent for the lights; i was in the passage with him at the time till the lights came. _q._ was your attention particularly called to him as a stranger of some importance? _a._ undoubtedly. _q._ you have said you had not seen the person before whom you have pointed out? _a._ no. _q._ did any body suggest to you that that was the person when you saw him? _a._ no, it was by myself in the hall. _q._ did you know him when you saw him? _a._ the instant i saw him. _q._ had you the least doubt upon your mind of his being the man? _a._ not the least. _thomas worthington gourley sworn._ _examined by mr. bolland._ _q._ you are a hatter at dover i believe? _a._ i am. _q._ were you at mr. marsh's, the packet boat, on the morning of the st of february? _a._ i was. _q._ was your attention called to any thing in particular on that morning? _a._ yes it was, after mr. marsh went out first and called for lights, i took two candles and went across with him to the ship. _q._ on getting to the inn what did you perceive? _a._ i perceived a gentleman in a grey coat, a pepper and salt coloured coat, more properly speaking. _q._ look at that coat, and tell me whether it was like that? _a._ something similar to that. _q._ did you remark any other part of his dress? _a._ not at that time. _q._ tell us what passed when you went over? _a._ mr. marsh asked me to go and call the ostler up, and tell him to get a post chaise and four immediately. _q._ had the stranger said any thing in your presence? _a._ not at that time. _q._ did you do so? _a._ i did. _q._ did you return back again? _a._ after some considerable time--i was sometime in getting the ostler up. _q._ where did you find the stranger on your return? _a._ i found him in the parlour. _q._ were there any lights in the room? _a._ there were. _q._ how were the lights placed with reference to him, and what was he doing? _a._ there were two candles on the table, the gentleman was walking about, he had got a uniform dress on i perceived then. _q._ what was the colour of that dress? _a._ red, trimmed with gold lace, with a star upon his breast. _q._ did you perceive any other ornament? _a._ no i did not, to notice it. _q._ did you make any remark upon the dress of his head? _a._ he had got a cap on. _q._ was it like that cap? _a._ something similar to that. _mr. park._ does your lordship think they ought to be exhibiting these paraphernalia; it appears to me something like a novelty exhibiting such things in a court of justice till the proof has gone further? _lord ellenborough._ the witness has said he had a cap on, and so on. _mr. park._ if they had asked was it that cap i should not object to it if they were prepared to prove that was the cap, but they might send to covent garden wardrobe and fetch all these things? _mr. gurney._ i undertake to prove by the person who made the dress for de berenger, that these are fac similes of the articles of dress made for him. _mr. park._ you stated that very expressly and very clearly. _lord ellenborough._ unless his recollection goes to their being such things, i think it would not go far; it is a thing that occurs every day, i have seen it twenty times at the old bailey. _mr. park._ it assists the recollection of the witness, which i say my learned friends are not entitled to do. _lord ellenborough._ when the witness has given a previous description of the dress, it is very usual to ask wherein does it differ, or what sort of a thing is it--they must first lay the foundation for the production which i think they have done in this case. _mr. bolland._ had he a cap upon his head similar to that? _a._ yes he had. _q._ had that gold lace on? _a._ it had. _q._ you say the gentleman was walking up and down the room? _a._ yes. _q._ did he say any thing in your presence? _a._ i asked him what the news was. _lord ellenborough._ how came you to ask that? _a._ because i had heard mr. marsh say he was a messenger come over. _mr. bolland._ did he reply to that? _a._ he told me that messengers were sworn to secrecy, but that he had got glorious news he had brought over to england, the best that ever was known for this country. _q._ had you any further conversation with him? _a._ he rung the bell and called for a pen, ink and paper, to write a letter to send off to the admiral at deal. _q._ was that brought to him? _a._ it was, and he was writing the letter some little time while i was there, and i bid him good night after that. _q._ did you take leave of him before he had finished the letter? _a._ i did. _q._ where were the candles during the time that he was writing the letter? _a._ on the table. _q._ were they sufficiently near him to enable you to observe him? _a._ yes they were. _q._ can you point out to the court that person who wrote that letter on that night? _a._ yes. _q._ will you point him out? _a._ yes, that is the gentleman (_pointing to de berenger_.) _q._ have you any doubt upon your mind of that? _a._ none in the least. _cross-examined by mr. richardson._ _q._ you did not come over until you were called for by mr. marsh to bring candles? _a._ no i did not. _q._ you were immediately sent to order horses, were you not? _a._ yes, i went and called the ostler up. _q._ i think you state that you were absent some time in performing that service? _a._ yes, i was some little time before i could wake the ostler. _q._ you left the candles in the passage with mr. marsh? _a._ yes. _q._ you handed the candles to him, and went immediately to call the ostler? _a._ yes. _q._ it was not till after you returned, having been absent some little time that he rung the bell and ordered pen, ink, and paper. _a._ yes. _q._ that order was given in the parlour, not in the passage? _a._ yes. _q._ did you see him write upon the paper? _a._ yes, i did. _q._ you are a hatter? _a._ yes. _q._ there is a hatter's club at dover, is there not? _a._ not that i know of. _q._ were you up at this time when this transaction took place, or did you get up for the purpose? _a._ i was up at the time. _q._ had you any particular meeting on that day? _a._ no, nothing particular, only i was smoking a pipe with mr. marsh. _q._ at one o'clock? _a._ yes, a little after one, it was between one and two o'clock i stopped there after two o'clock, i stopped some considerable time after the gentleman was gone away. _q._ he was not there above a quarter of an hour, or twenty minutes, was he? _a._ i cannot tell, it might be a quarter of an hour or it might not. _q._ he was in a great hurry to get off, and went off as soon as the horses were ready? _a._ he did. _q._ had you dined at the packet boat, or at the ship on that day? _a._ no, i had not. _q._ have you seen that gentleman from that time till to-day? _a._ no, not from the time i saw him at dover till to-day. _q._ have you not been at london to be examined? _a._ no. _q._ you have heard a great deal about this transaction? _a._ yes, it has been in every body's mouth. _q._ i take for granted you talk about these things as we do in london? _a._ yes we do. _q._ and read the newspapers that have been full of this thing for a long time? _a._ i frequently read the newspapers. _re-examined by mr. bolland._ _q._ how long had you an opportunity of observing him? _a._ perhaps i might be in the room three or four minutes. _q._ during that time, was your attention called to him? _a._ yes, on account of the glorious news he said he had brought. _q._ it was a welcome face at dover? _a._ yes, it was indeed, and that made me take more notice than i should have done. _a juryman._ had he a cap on all the time you saw him? _a._ no, he had not. _mr. park._ it was only three or four minutes altogether? _a._ i beg your pardon; i did not say it was only three or four minutes, i was asked whether it was three or four minutes, and i said i had no doubt it was. _a juryman._ are you sure that is the man? _a._ that is the gentleman that i saw there. _lord ellenborough._ you have no doubt whatever? _a._ no, i have none in the least. _eliott edis sworn._ _examined by mr. bolland._ _q._ you are a cooper in the victualling yard at dover, are you not? _a._ yes. _q._ were you, on the morning of the st of february, at the packet boat? _a._ yes, i was. _q._ was mr. gourley there with you? _a._ yes. _q._ was your attention called to any thing particular on that morning? _a._ yes, a messenger arrived. _q._ did you see the messenger? _a._ yes. _q._ where did you first see him? _a._ at the ship. _q._ was he in a room, or in the passage of the ship, at the time? _a._ in a room. _q._ at the time you first saw him, how was he occupied, what was he doing? _a._ he was walking up and down the room. _q._ did you make any observation on his dress? _a._ he had a grey coat--his great coat. _q._ did you observe the other coat that he had on? _a._ he had regimentals; scarlet, trimmed with gold. _q._ had they any other ornament on them? _a._ i did not particularly take notice. _q._ do you recollect how his head was dressed? _a._ a cap, with a gold band about it. _q._ will you look at that coat which lies there? _a._ that is the color of it. _q._ how was the cap made? _a._ a slouch cap. _q._ where was the band? _a._ round it. _q._ of what did the cap appear to be made? _a._ it appeared to be made of a kind of rough beaver; i do not know whether it was black or brown. _q._ it had the appearance of rough beaver? _a._ yes. _mr. bolland._ will you now shew him the cap? _mr. park._ i think it should be more described before it is shewn to him; this is a totally different description; this may be very material. _mr. bolland._ then i will not shew him the cap at all.--had the cap any flap to it? _a._ rather a flap round, as i thought--all round. _q._ i ask you, whether the cap was cut off without any rim to it, or had it a rim like a hat? _a._ no, it had not a rim like a hat by any means. _q._ had you any conversation with him? _a._ no. _q._ you say that at first he was walking about the room? _a._ yes. _q._ did he employ himself in any other way while you were there? _a._ i saw him before i went away sit down to write. _q._ did you hear him order a pen, ink, and paper? _a._ no, i did not. _q._ did he, in your presence, say any thing as to whom he was writing to? _a._ no, i could hear him talk, but not to understand him. _q._ that was owing to your deafness? _a._ yes. _q._ did he keep his cap on the whole time you were there, or did he take it off? _a._ his cap was on while i was there. _q._ from the observation you made upon his person, can you point out who that person was whom you saw on that night; have you seen him? look round and see whether you see him here to-day. (_the witness looked round the court for some time._) _a._ that is the gentleman (_pointing to de berenger_.) _q._ have you any doubt upon your mind about it. _a._ no. _cross-examined by mr. park._ _q._ had you ever seen him before that night? _a._ no. _q._ have you ever seen him since? _a._ no. _q._ how long did you see him? _a._ i did not minute the time. _q._ upon the whole, how many minutes do you think you can now say you saw him that night? _a._ i might see him perhaps five or six minutes, or more. i was in the room twice. _q._ were you there before mr. gourley, or after him? _a._ i was in the room with him. _q._ did you go over before mr. gourley, or after him? _a._ after him--i followed him. _q._ immediately? _a._ yes. _q._ did you come away as soon as he did, or did you remain there after him? _a._ i did not take particular notice of that; the door was open, and we went in and out as we liked. _q._ will you tell us whether the word you used before was, that he had a flat cap, or a flap cap--had it not a flap to it? _a._ it was a cap rather slouched down, no brim to it. _q._ how could it slouch down, if it had no brim to it? i do not understand that; if it had merely a crown to it that would go round the head, it would not slouch down. _a._ it was drawn over his forehead. _q._ the round part of it was drawn down over his forehead? _a._ yes. _q._ where have you been all the time that gentleman has been speaking? _a._ what gentleman? _q._ were you out of court? _a._ no, i was not out of court. _q._ you have been behind? _a._ yes. _q._ have you been in view of his lordship all the time? _a._ no. _q._ when did you come into court; did you come in when mr. gourley was examining, or when marsh, the former witness, was examining? _a._ no, i was out of court at that time. _q._ had you left the ship inn before this gentleman, as you say it was, had left the ship inn and gone back to the packet boat? _a._ no, i saw him start off. _re-examined by mr. bolland._ _q._ did you come into court before you were called? _a._ no. _mr. park._ no, i give that up. _lord ellenborough._ a deaf man is rather an awkward man to be an eaves dropper. _mr. park._ i could not put so silly a question as that. _lord ellenborough._ he is the very last man that one should suspect; he could not hear if he was in court. _mr. park._ if he had been as deaf as deaf could be, if he had seen a person point at the defendant, that would have been sufficient for his purpose. _lord ellenborough._ but you saw how he searched round the court before he found him. _mr. park._ but when i have a case presented to me i must do my duty, however painful it may be. _lord ellenborough._ certainly, it is my wish you should. _the cap was shewn to the witness._ _mr. bolland._ was the cap like that? _a._ it was in the same form as that. _q._ was the lace like that? _a._ it was like that; i cannot say that was the cap. _mr. william st. john sworn._ _examined by mr. bolland._ _q._ where do you reside? _a._ in little brook street. _q._ were you at the ship inn at dover, on the morning of the st of february? _a._ i was. _q._ you were there as a guest--as a traveller? _a._ i was. _q._ was your attention called to any thing on that morning? _a._ yes, it was. _q._ were you up in the morning, or had you retired to rest? _a._ i had retired to rest. _q._ state to the court what it was which excited your attention. _a._ i think at a quarter past one, or somewhere thereabouts, i heard a violent knocking at the gate or door, and a person calling out for a post-chaise and four immediately. i got up and dressed myself as quickly as possible, and went down stairs. i met mr. wright, the landlord, and asked him---- _q._ do not state any thing that passed between you and wright, unless the stranger was there. _a._ i went into the coffee-room, i think it is called. _q._ did you observe any body there? _a._ i saw a gentleman in a military uniform. _q._ will you state, if you recollect it, what his dress was? _a._ he wore a scarlet coat, with long skirts, buttoned across, with a red silk sash, grey pantaloons, and a grey military great coat, and a seal-skin cap, i think it was a seal-skin cap, on his head, of a fawn colour. _lord ellenborough._ you did not touch it to feel it, did you? _a._ no; it had a gold band round it. _mr. bolland._ had he any ornament on his uniform? _a._ there were some ornaments but i do not know what they were, something of a star on his military dress. _q._ how was he engaged at the time you first saw him? _a._ he was walking up and down the room in a very good pace. _q._ did any thing pass between you and him? _a._ i asked a question. _q._ what question did you ask him? _a._ i asked him about the arrival of a messenger, and he said, he knew nothing at all about it. _q._ what were the terms in which you asked him? _a._ i asked him if he knew any thing of the arrival of mr. johnson, who was the messenger expected.--he said, he knew nothing at all about him, and begged i would leave him to himself, as he was extremely ill. on my leaving the room, he requested that i would send in paper and pen and ink. i immediately retired, and met the landlord, mr. wright, coming into the room, i believe with the paper, pens and ink. _q._ did you return into the room? _a._ in a few minutes, i believe a few seconds afterwards, i did. _q._ how was he then occupied? _a._ he was writing. _q._ did he say any thing of what he was writing? _a._ no. _q._ did you afterwards hear him say any thing, or see him do any thing with the paper upon which he was writing? _a._ no, i did not. _q._ did you hear him say any thing to mr. wright? _a._ no, i did not,--not in the room. _q._ did you continue in the room during the whole time he was writing, or leave it? _a._ i left it immediately. _q._ did you again see him, and where? _a._ at the door in the street, stepping into the carriage. _q._ did you hear him say any thing there, or see him do any thing? _a._ i asked him what the news was,--he told me it was as good as i could possibly wish. _q._ did any thing more pass between you and him? _a._ nothing more. _q._ did you see what he did with the paper upon which he was writing? _a._ no, i did not. _q._ did you hear any thing pass between him and any other persons? _a._ no, i did not. _q._ did you leave the place or did he go away first? _a._ he went away first. _q._ did any thing pass from that stranger or to him respecting the letter. _a._ no, not that i heard. _q._ from the observation that you made upon that person, could you point him out? _a._ certainly. _q._ look round the court, and see whether he is here? _a._ the gentleman is below me, (_pointing to de berenger_,) this gentlemen, who is writing here. _q._ have you any doubt of it? _a._ not in the least. _q._ had you seen him before that day? _a._ this is the third time i ever saw him.--i saw him by accident in westminster hall, passing through the hall. _lord ellenborough._ did you recollect him when you saw him there? _a._ immediately. _mr. bolland._ by what accident was it that you saw him there? _a._ i went down there. _q._ and there by chance saw him? _a._ yes. _q._ were you desired by any body to go down? _a._ a friend of mine asked me to go down. the fact is we were going to newgate; having heard that he was gone to westminster hall, i went down there. _q._ was he walking about the hall, or where was he when you saw him? _a._ i first saw him in the court. _q._ was he alone, or were there other persons about him? _a._ there were many persons about him. _q._ you have no doubt of the person? _a._ i have no doubt. _q._ you recollect nothing of any letter? _a._ no, i do not. _cross examined by mr. richardson._ _q._ you told my learned friend you had seen this person three times;--once at dover, and to day, and another time; by accident that was so--was it? _a._ it was. _q._ did you go to newgate by accident? _a._ no, i did not, i went there accompanied by a friend to see him; it was mere by chance that i went down to westminster hall. _q._ do you call that an accident in your vocabulary? _a._ i had no intention of going there ten minutes before. _q._ you did not go with your friend for the purpose of looking at him? _a._ i went alone, i went with a friend to newgate. _q._ you did not go to westminster hall for the purpose of looking at him? _a._ i did. _q._ do you call that an accident? _a._ no. _q._ did you not follow him to westminster hall for the purpose of looking at him? _a._ yes. _q._ who was the friend who went with you to newgate? _a._ mr. oakes of the stock exchange. _q._ that was the day you knew he was to come to westminster hall for the purpose of pleading to this indictment? _a._ i did not know any such thing. _q._ were not you so informed when you got to newgate? _a._ i was. _q._ and then you followed him to westminster hall, and saw him pleading to this indictment? _a._ i saw him in westminster hall. _q._ did you not hear the officer read the indictment to him? _a._ i was not in the court, i think i just had my head in the inside of the curtain. _q._ did you not hear the officer read something to him, and ask him whether he was guilty or not guilty? _a._ i heard the officer read something. _q._ and ask de berenger whether he was guilty or not? _a._ i heard him ask some question, but not what it was. _q._ that person was standing up in court, under the officer? _a._ he was. _q._ you were not resident at dover, i think? _a._ no, i was not. _q._ what is your business in london? _a._ i have a situation in a public charity. _q._ what is that? _a._ the irish charitable society. _q._ are you secretary to that? _a._ no, accountant. _q._ is that your only line of business? _a._ yes. _q._ have you nothing to do with the stock exchange? _a._ no. _q._ you never had? _a._ i do not understand that question. _q._ have you ever had any thing to do with the stock exchange? _a._ i have had some transactions in the stocks. _q._ have you ever acted as a broker? _a._ no, never. _q._ your transactions in the stocks have been entirely on your own account? _a._ yes. _q._ buying and selling stock upon your own account? _a._ the fact is, i held some omnium. _q._ and sold it again? _a._ yes. _q._ about what time? _a._ i bought it before that time. _q._ when was it sold? _a._ some days after this transaction. _q._ you were in this room twice, i think you said? _a._ yes. _q._ when you first went down, you did not find your company acceptable? _a._ the gentleman begged i would leave him, and i did so. _q._ upon your oath, how long were you in the room at that time? _a._ not more than a minute. _q._ it might be less; you went immediately on his requesting you? _a._ yes, as soon as possible. _q._ the second time, you stated to my learned friend, you left the room immediately after you went in,--how long were you then? _a._ i suppose a minute; i went up to the table and back again. _q._ you did not see him do any thing, but write a letter? _a._ no. _q._ had he his great coat and cap on, all the time you were with him? _a._ yes, i did not see him without them. _q._ it was a slouch cap we have heard it described? _a._ no, it was not; it was a cap without any leaf at all to it. _q._ coming over the forehead? _a._ no, it fitted the head tight, but had neither a leaf or any thing else to it. _q._ what might be your business at dover at that time? _a._ i went down for the purpose of getting information. _q._ was that for the benefit of the irish charitable society? _a._ no, certainly not. _q._ if it is not impertinent, for whose benefit was it? _a._ one purpose was to send information to a newspaper. _q._ another purpose, to send information to whom? _a._ if any thing happened, such as the arrival of the preliminaries of a treaty of peace, which was expected, i should have come to london immediately. _q._ you would have gone to the stock exchange with it? _a._ no, i should not, i have no connexion with the stock exchange. _q._ upon your oath, you would not have communicated it to the stock exchange? _a._ i should not. _q._ it was by mr. oakes's desire, you say, that you went to newgate,--was it by his desire you went to dover? _a._ it was not. _q._ did he know of your going to dover? _a._ he did not. _q._ by whose desire did you go down? _a._ by desire of a friend of a mine. _q._ who was that person? _a._ he was a friend of mine. _q._ what was his name? _lord ellenborough._ there is no objection to your telling it. _mr. richardson._ have you any doubt of it in your memory? _a._ no. _q._ at whose desire did you go down? _a._ mr. farrell. _q._ who is mr. farrell? _a._ he is a merchant. _q._ a merchant in the city of london? _a._ yes he is. _q._ has he any thing to do with the newspaper you have spoken of? _a._ yes he has, he is a proprietor of it. _q._ what is the name of it? _a._ the traveller. _q._ where does mr. farrell live? _a._ in austin friars. _q._ what day did you go to dover? _a._ i went on the saturday. _q._ that was the very day before? _a._ yes. _q._ for the purpose of getting any intelligence that might arrive and to communicate it immediately to mr. farrell? _a._ yes, or mr. quin, the other proprietor of the newspaper. _q._ you told me just now, your object was to get information, partly for the newspaper;--what was the other object? _a._ i do not recollect having said partly. _q._ i am in the recollection of the gentlemen of the jury, whether you did not say so. _a juryman._ you said one object was that. _mr. richardson._ what other object had you? _a._ that was the only distinct object i had. _q._ then you meant that you had no other object but that? _a._ if there had been a preliminary treaty of peace arrived, i should have returned to london, and of course i would have made what i possibly could of the little omnium i held. _q._ that was the other object? _a._ yes. _q._ all information of slighter importance you would have communicated to mr. farrell, who sent you; if it had been very important, you would have come to london and sold your omnium? _a._ certainly. _re-examined by mr. bolland._ _q._ at the time you saw that person in westminster hall, i think you told me he was standing with a number of others? _a._ he was. _q._ did any person point out that person to you? _a._ no. _q._ was it from the recollection of your own mind, that you discovered him? _a._ it was. _q._ do you know a boy of the name of ions? _a._ no. i do not know him by name. _william ions was called into court._ _mr. bolland (to st. john.)_ do you know that boy? _a._ yes. _q._ he is one of wright's boys? _a._ he is. _q._ did you see him on that night. _a._ i did. _q._ upon what occasion? _a._ he was sent as an express, there were two expresses that night, he went with one of them. _q._ to whom was that lad sent? _a._ i think to the port admiral at deal. _q._ whose express was that? _a._ it was an express i believe that mr. wright gave him from the gentleman who was there. _q._ do you mean from that gentleman? _a._ yes. _william ions sworn._ _examined by mr. gurney._ _q._ in the month of february last were you in the service of mr. wright of dover. _a._ yes. _q._ were you up when the officer arrived there, or were you called up? _a._ i was called up. _q._ were you sent off with an express to admiral foley? _a._ yes. _q._ did you take to the admiral's the letter you received there? _a._ yes, i did. _cross-examined by mr. richardson._ _q._ who gave you the letter that you speak of? _a._ mr. wright. _q._ he gave you some letters to carry to admiral foley? _a._ yes. _q._ where did he give it you? _a._ i was at the fore-door upon the pony, and he came out to the door to me with the letter. _q._ to whom did you deliver it? _a._ to the admiral's servant. _q._ at deal? _a._ yes. _q._ what is her name? _a._ i do not know, she took it up stairs to the admiral directly? _q._ you did not see the admiral? _a._ i saw him that night. _q._ do you mean before you left deal? _a._ yes. _q._ this letter you delivered to some servant at the door? _a._ yes. _q._ and she carried it up stairs? _a._ yes. _re-examined by mr. gurney._ _q._ after she had delivered it up stairs you saw the admiral? _a._ yes. _admiral thomas foley sworn._ _examined by mr. gurney._ _q._ on the morning of monday the st of february did you receive a letter by that boy? _a._ a letter was brought to me that that boy brought to the house, and given to me, i was in bed. _mr. park._ you did not receive it from the hand of that boy? _a._ no, it was brought to me by my maid-servant at three o'clock in the morning, i was in bed. _q._ did you get up immediately? _a._ i read the letter in bed. _q._ is that the letter? (_shewing a letter to the witness._) _a._ this is the letter. _q._ did you mark it before you parted with it? _a._ i do not know whether i marked it or not. _q._ you know it again. _a._ i inclosed it in a letter but i did not mark it. _q._ you inclosed it in a letter to mr. croker? _a._ yes a private letter to mr. croker. _q._ is that the letter in which you inclosed it to mr. croker (_shewing a letter to the witness._) _a._ this is the letter. _q._ that letter which i first shewed you is the letter you received from your maid servant? _a._ it is. _q._ i suppose you rose directly? _a._ i rose and sent for the boy into my dressing room. _q._ did you communicate the news by telegraph to the admiralty that morning. _a._ it was very late before i began, i will tell you what i did, i questioned the boy a good deal, for i must say i did not believe the letter. _q._ i must not ask you what passed between you and the boy, but whether you telegraphed the admiralty? _a._ i did not, because the weather was thick, and i further say, the message i should have sent to the admiralty would have satisfied them-- _q._ in fact you did not telegraph the admiralty because the weather was too thick? _a._ i did not. _q._ when you sent for the boy up had you the letter in your hand? _a._ i had, it was then three o'clock and dark, the telegraph would not move. _q._ i take for granted you had a candle? _a._ of course. _mr. gurney._ we will now read the letter. _mr. park._ i object, with great deference to his lordship, to that letter being read, the evidence does not bring home that to the supposed officer, who is said to be mr. de berenger, it does not appear from any evidence to have come out of his hand it reaches this boy by the communication of mr. wright, who has not been called. _mr. gurney._ i will ask the witness as to the reason of mr. wright's not being here--he is very ill, is not he? _a._ he is extremely ill. _mr. park._ my lord, that does not alter the law of evidence, i submit there is a chasm in that chain that precludes their reading the letter as evidence against mr. de berenger. i do not mean to say that might not be supplied in the absence of mr. wright, but that letter lying before your lordship's officer is not identified to be the very paper which issued forth from this supposed person. it was delivered to this youth at the door of the inn by wright, who is ill and absent from illness, he is not present to tell your lordship from whom he received that, and there is a chasm in the chain of evidence, nor does the admiral say he received the letter from this boy, he received it from a maid servant. _lord ellenborough (to admiral foley.)_ when the boy came into your presence i suppose you asked him about this letter? _a._ i did. _q._ did he recognize that as the letter he had brought? _a._ he did. _mr. park._ with deference to your lordship i should submit the letter was then open, the boy had delivered the letter shut to the maid servant, and i should have submitted, it is quite impossible that this youth could distinguish the letter, nobody doubts it is the letter, but that must be proved by legal evidence. _lord ellenborough._ it is prima facie evidence. i do not speak now of the communication from de berenger (supposing he is the person) of the letter to the boy. i do not say any thing upon that objection of yours, but that the letter which reached admiral foley was the letter the boy brought i think no human being can doubt. _mr. park._ but still upon the original point, i submit it is not so proved as to be read in evidence. _lord ellenborough._ yes, you may resort to that if you please, the witness said he wanted an express horse to send to the admiral at deal, and then an express horse was got, and something was carried to the admiral at deal. that is the evidence as it stands. _mr. serjeant best._ so far the evidence goes my lord, they now want to make the contents of that letter evidence, but before they can do that they must either prove that letter to be the hand-writing of mr. de berenger, or trace that letter regularly from the hand of mr. de berenger: they have no such evidence, but all they say is, that wright, the landlord of the inn, took the letter out of the inn and delivered it to the boy at the door, the boy never having seen mr. de berenger, nor they having the smallest evidence whatever to connect the boy with him. _lord ellenborough._ if there had been, the question would not have arisen. _mr. serjeant best._ i submit there is nothing to connect that letter with this person, and if it is the hand-writing of mr. de berenger i should think they would have no difficulty in proving that, there were other gentlemen waiting for information from france, as we hear from the witnesses, and if this letter is read mr. de berenger and the other defendants may be made responsible for that letter which may have been written by one of those other persons. _lord ellenborough._ i only want to get first all the facts relating to this letter. i cannot find any thing beyond that that he wanted an express horse to send to the admiral at deal. _mr. gurney._ and that a sheet of paper was brought to him to write. _lord ellenborough._ that he was preparing to write a letter and that he wanted an express horse to carry it, but as to the immediate identification of that letter you lose the intervening proof by the absence of mr. wright. _mr. gurney._ my lord, if there is any sort of difficulty about it, i will identify it at once by proving the hand-writing, but the gentleman to prove that felt a delicacy in consequence of his being the attorney for the prosecution. _germain lavie, esq. sworn._ _examined by mr. gurney._ _q._ you are the attorney for the prosecution? _a._ yes. _q._ did you see mr. de berenger in the custody of the messenger, in the course of the month of april? _a._ several times. _q._ in the course of those interviews did you see him write? _a._ i did. _q._ did you see him write a good deal? _a._ yes, a considerable deal, i saw a whole letter which he handed me across when he had written it, and it was given back and copied again, and for about an hour he was writing different things and handing backwards and forwards. _q._ did you also see his papers in his writing desk? _a._ i did. _q._ from the observation you made upon his writing, seeing him writing as you did at those several interviews, do you or do you not believe that to be his hand-writing? _a._ i verily believe it to be his hand-writing from what i saw him write, but i am more impressed with its being his hand-writing, or at least the impression of its being his hand-writing is strengthened by what i saw of his writing. _q._ do you believe, from what you saw him write, that that is his hand-writing. _a._ yes i do most solemnly, i did not see the letter till afterwards, and the moment i saw it, i concluded that to be his hand writing, and said so at the time. _mr. park._ what you said at the time is no evidence, and you know that. _mr. gurney._ did your observation of it enable you to say you believed it to be his hand writing? _a._ i have said so. _mr. park._ you know as well as any man, that what you said to any body is no evidence. _lord ellenborough._ it is a measure strongly indicative of his persuasion, it is an act accompanying his seeing it. _mr. gurney._ does mr. de berenger always write as large as that, or does he write a hand as large as that, and a smaller one also? _a._ his usual hand is a good deal smaller than this. _q._ did you find him sometimes writing larger than at other times? _a._ yes, there was apparently in his letters a larger hand in writing, i could positively swear that the man who wrote those i saw, wrote this, only one was larger than the other. _cross examined by mr. park._ _q._ you told my learned friend just now, that you formed your mind not only from what you saw him write, but from what you saw in his writing desk? _a._ that confirmed my mind. _q._ upon your oath, if you had not seen those writings in his desk, would you have taken upon yourself to swear that it was his hand writing? _a._ i think i should, but that makes it much stronger in my mind. _q._ i ask you again and will have a positive answer to the question, if you had never seen those other writings to which you have alluded, would you upon the mere circumstance of having seen him write, have taken upon you to swear that you believed that to be his hand writing? _a._ i could have sworn it not quite so strongly, i could have sworn to my verily believing it, but i can now swear without the least doubt that it is his. _q._ that is because i have examined you perhaps? _a._ no it is not. _q._ you verily believe that to be his writing, do you? _a._ yes. _q._ look at that and tell me whether you believe that to be his hand writing, (_shewing a letter to the witness_) you need not open it, i have shut it for the purpose. _a._ yes i do, that is more like what i saw him write than this; i believe that to be his hand writing. _mr. park._ i will put a letter a upon it; will you be so good as to look at that account, (_shewing it to the witness_) and tell me whether you believe that to be his hand writing. _a._ i can only say this is the sort of hand he writes. _q._ will you swear that is his hand writing. _a._ that appears to me to be the same sort of hand. _mr. park._ i will mark this b. they are very much alike. _a._ they are more like the sized hand he writes in common than this, this is a larger hand. _mr. serjeant best._ do you believe these to be mr. de berenger's hand writing? (_shewing three papers to the witness_). _a._ they are all like his hand writing. _lord ellenborough._ i think this should be kept for your case--i never saw any thing like this in my life. _mr. gurney._ i take for granted these are meant to be produced in the defence? _lord ellenborough._ you must be conscious that you are doing an irregular thing in tendering them now. _mr. park._ i am not conscious my lord, of doing an irregular thing. _lord ellenborough._ i mean in tendering evidence at a time when it is not open to the defendant to do so. _mr. park._ but i may try the credit of the witness by shewing him these. _lord ellenborough._ there is no doubt that every defendant has a right to give evidence in his turn, but at present we are upon the case of the prosecution. _mr. park._ have you not shewn that letter to various other persons in order to procure their testimony to the hand writing? _a._ no, i have not. _q._ you have not attempted it? _a._ i was always conscious that i should be able to prove the letter, but this morning finding mr. wright was not come up, i asked them if they had any body at hand that could prove it, so as to avoid being called myself; but i believe i must be called at last to the examination of the papers, so that it is not so important my being called sooner or later. _q._ have you attempted to get other evidence? _a._ i have not. _q._ was mr. stevens applied to? _a._ before the grand jury, mr. stevens was not only applied to, but attended.--mr. lees also, of the bank of england had ascertained before i had any thing to do with the business---- _mr. park._ that is not my question. _lord ellenborough._ put your question distinctly. _mr. park._ i ask whether mr. lavie had not applied to various persons to swear to de berenger's hand writing, and finding that they would not swear to it, then he determined to swear to it himself? _a._ no, i have not. _mr. gurney._ you say you did apply to mr. lees of the bank, and mr. stevens? _a._ yes. _q._ mr. lees is the inspector at the bank? _a._ he is. _the letter was read as follows:_ dover, one o'clock, a. m. feb. st, . sir, i have the honour to acquaint you, that the l'aigle from calais, pierre duquin, master, has this moment landed me near dover, to proceed to the capital with dispatches of the happiest nature. i have pledged my honour that no harm shall come to the crew of l'aigle; even with a flag of truce they immediately stood for sea. should they be taken, i have to entreat you immediately to liberate them; my anxiety will not allow me to say more for your gratification, than that the allies obtained a final victory, that bonaparte was overtaken by a party of sachen's cossacks, who immediately slaid him, and divided his body between them; general platoff saved paris from being reduced to ashes, the allied sovereigns are there, and the white cockade is universal, an immediate peace is certain.--in the utmost haste i entreat your consideration, and i have the honour to be, sir, your most obedient, humble servant, r. du bourg, lt. col. & aid de camp to lord cathcart. to the honourable t. foley port admiral, deal, &c. &c. &c. &c. _mr. serjeant best._ your lordship will allow me to explain. i did not ask these questions of mr. lavie, with a view to offer hand writing against hand writing, but to prove these papers that i mean to offer in evidence. _lord ellenborough._ they should be proved in your case; i know by mutual consent they are sometimes proved by a witness for the prosecution, and i did not interfere in the first instance, but when i saw it multiplying, i thought it necessary to interfere. _thomas dennis sworn._ _examined by mr. adolphus._ _q._ are you the driver of a post chaise in the service of mr. wright, at the ship at dover? _a._ yes. _q._ early in the morning of the st of february, do you remember taking a fare from thence? _a._ yes, i drove the chaise. _q._ with how many horses? _a._ four. _q._ where did you drive it to? _a._ to canterbury. _q._ to what inn? _a._ to the fountain. _q._ what sort of person was it that you drove? _a._ i cannot say. _q._ was it one person, or more than one? _a._ only one. _q._ a man or a woman? _a._ a man. _q._ was it dark? _a._ yes. _q._ could you see how he was dressed? _a._ no. _q._ had you the wheel horse, or the leaders? _a._ the leaders. _q._ when you put the person down whom you had driven, what did he give you? _a._ he gave me a gold napoleon. _q._ did he give you only? _a._ he gave us one a piece. _q._ what became of those napoleons? _a._ i sold mine. _q._ what did you get for it? _a._ i got a one pound note for mine. _q._ do you know the name of the lad at canterbury that took him after you? _a._ yes. _q._ what is his name? _a._ broad. _q._ who was the other? _a._ thomas daly. _cross examined by mr. richardson._ _q._ did you see broad and daly set off with the chaise from canterbury? _a._ yes. _q._ it was a very dark night, was not it? _a._ yes. _q._ an hazy misty night? _a._ yes. _q._ a dark foggy night? _a._ yes. _q._ how do you remember the day this happened, from dover you are in the habit of carrying persons in chaises and four to canterbury frequently? _a._ yes. _q._ day and night? _a._ yes. _q._ the carrying a gentleman in a chaise and four to canterbury was nothing extraordinary? _a._ no. _q._ how came you to remember this particular day? _a._ i do not know. _q._ upon your oath, might it not have been the th or the nd? _a._ i cannot say indeed. _q._ have you not heard other people say it was the st that this extraordinary affair happened? _a._ no, i have not. _q._ you have not heard it talked of at all? _a._ no. _q._ for aught you know it might be the th or the nd? _a._ i cannot say. _re-examined by mr. adolphus._ _q._ do you remember what day of the week it was? _a._ no. _q._ do persons often give you a napoleon for driving them? _a._ no, i never had one before. _q._ you do not remember the day of the week? _a._ no, i do not. _edward broad sworn._ _examined by mr. adolphus._ _q._ are you a driver of a chaise at the fountain at canterbury? _a._ yes. _q._ do you remember the last witness coming to your house with a fare early in a morning in february. _a._ yes. _q._ do you remember what day it was? _a._ no, i do not. _q._ do you remember what day of the week it was? _a._ no, i do not. _q._ was it one gentleman you particularly remember, or more? _a._ one gentleman. _q._ from whence did he come? _a._ from the ship at dover. _q._ did you drive the wheel horses or the leaders? _a._ the leaders. _q._ he came with four horses? _a._ yes. _q._ and went away with four? _a._ yes. _q._ where did you drive him to? _a._ to the rose at sittingbourn. _q._ did you see him into a chaise there? _a._ he did not get out--the chaise went forwards. _q._ with four horses or two? _a._ with four. _q._ who drove him, do you remember the boys names? _a._ michael finnis was one, and james wakefield. _q._ what present did he make you? _a._ i did not receive any money from him; the other boy received the money. _q._ what had you for your share? _mr. park._ that cannot be received unless he saw it given. _mr. adolphus._ did you see the money given? _a._ i was very busy taking the horses off. _q._ what had you for your share? _a._ a napoleon. _cross-examined by mr. park._ _q._ have you long lived at the fountain at canterbury? _a._ yes. _q._ have you long known thomas dennis? _a._ yes, some years. _q._ have you never driven a fare he brought from dover before? _a._ not particularly to my knowledge. _q._ your knowledge has been called to this subject, but you do not know that you ever drove one that he brought before? _a._ i might have driven one, but he brought this i know. _q._ you might have driven a fare brought by him from dover? _a._ i might, there are a great many boys from that inn. _q._ and you have driven a single gentleman before? _a._ yes. _q._ and sometimes you have driven a chaise and four? _a._ yes. _re-examined by mr. adolphus._ _q._ did you ever receive a napoleon before? _mr. park._ he did not receive it from that person. _lord ellenborough._ did all these circumstances ever concur in any other case. did you ever drive so early in the morning a single gentleman in a chaise and four, and receive a napoleon from him? _a._ no, i never did. _michael finnis sworn._ _examined by mr. adolphus._ _q._ are you a post-chaise driver at the rose at sittingbourn? _a._ yes. _q._ do you remember the last witness bringing a gentleman in a post-chaise to your house? _a._ yes. _q._ in the month of february? _a._ i did not take particular notice of the time. _q._ was it early in the morning? _a._ yes. _q._ in a chaise and four? _a._ yes. _q._ at what o'clock in the morning might it be? _a._ it might be somewhere about four, or between four and five i believe. i did not take particular notice, for i had no watch with me, it was dark. _q._ where did you drive him to? _a._ i drove him to the crown at rochester. _q._ that is mr. wright's house? _a._ yes. _q._ at what time in the morning might it be when you got to rochester? _a._ i cannot say, we were not much above an hour going with the gentleman--it might be an hour and ten minutes at the outside. _q._ did the gentleman get out there? _a._ yes, he did. _q._ what present did he make you? _a._ he gave us a napoleon a piece; he gave me two, one for my fellow-servant and one for myself. _lord ellenborough._ you had no opportunity of seeing his person? _a._ i did just see him in the house when he paid me, but i did not take any particular notice of him. _lord ellenborough._ he had no luggage, had he? _a._ i do not know. _lord ellenborough._ i thought he had changed chaise? _mr. park._ no, he did not change chaise, only got out and in again. _a juryman._ did you observe his dress? _a._ he had a kind of a pepper and salt coat on, and a red coat under that i perceived, and a cap he had on. _mr. william wright sworn._ _examined by mr. adolphus._ _q._ you keep the crown inn at rochester? _a._ yes. _q._ do you remember a chaise from sittingbourn arriving at your house on the morning of the st of february? _a._ yes. _q._ a chaise and four? _a._ yes. _mr. park._ i request that the questions may not be put so leading as to fix the day, for not one witness has proved it. _mr. adolphus._ have you any particular reason for remembering that day? _a._ yes. _q._ what sort of a person was it that came in the chaise? _a._ it was a tall person rather thin than otherwise. _q._ dressed how? _a._ he was dressed in a pepper and salt great coat, with a scarlet coat under it, a military scarlet coat; the upper coat was nearer the color of that coat i think than any thing i could state, (_pointing to the coat before produced_), the scarlet military coat he had under that was very much trimmed with gold lace, it appeared by the candle light to be gold lace trimmed down the front; he had on also a cap, a military cap with a broad gold lace round it--a band. _q._ what was the cap apparently made of? _a._ the cap appeared to me to be made of cloth; i am not certain whether it was of cloth or fur, but it appeared to be nearly of the color of the great coat. _q._ was there any thing particular about his military coat? _a._ on the military coat was a star, and something suspended either from the neck or the button, i do not know which, something which he told me was some honor of a military order of russia. _q._ was that thing at all like this? (_shewing the star to the witness._) _a._ yes, it had very much the appearance of that sort of thing. _q._ did the person stay any time at your house? _a._ i should suppose i was in conversation with him about ten minutes in the parlour. _lord ellenborough._ at what time in the morning was this? _a._ the time the chaise drove into the yard i suppose was about half-past o'clock; it was not earlier than that, and i suppose very little later. _mr. adolphus._ what were you and he doing during these ten minutes? _a._ i was getting some chicken for him, and cutting that chicken up and some round of beef. _q._ in what room were you? _a._ in our bar parlour; i took him there, the house not being open, that being warmer than the rest of the rooms. _q._ what passed in that conversation you had with him? _a._ i was first of all called up by a post-boy of my brother's at dover, he told me he was to go forward with some letter to london, and that there was a messenger. _q._ you must not state what passed with your brother's boy, but in consequence of what that boy told you what did you say to the gentleman? _a._ i went into the yard and found the gentleman looking out at the front window of the chaise and he said he was very hungry, and could he have any thing to eat, for he had had nothing since he left calais; i told him that he could get any thing he pleased, and should i bring him any thing by way of a sandwich, as i supposed he would not get out of the chaise, he said he would get out, and he did get out, and i took him into our bar parlour; when he got there i said "i am led to suppose you are the bearer of some very good news for this country," he said he was, that the business was all done, that the thing was settled. i asked him if i might be allowed to ask him, what was the nature of his dispatches, and he said "he is dead!" i said "who do you mean sir?" he said "the tyrant bonaparte!" or words to that effect; i believe those were the exact words. i said "is that really true sir?" upon that observation he said, "if you doubt my word you had better not ask me any more questions." i then made an apology for presuming to doubt his word, and requested he would be kind enough to say, as the country was very anxious, and our town in particular, what were the dispatches; he then went on that there had been a very general battle between the french and the whole of the allied powers, commanded by schwartzenberg in person; that the french had been completely defeated and bonaparte had fled for safety. that he had been overtaken at a village, to the best of my recollection he said it was rushaw, six leagues from paris, by the cossacks, to the best of my recollection that was the name of the place and the distance. that the cossacks had there come up with him, and that they had literally torn him into pieces. that he had come from the field of battle from the emperor alexander himself; that he either was an aid-de-camp of the emperor or of one of his principal generals he told me, but which i am not able to say, but one i know he told me was the case, that the allies were invited by the parisians to paris, and the bourbons to the throne of france, that was pretty well all the conversation that passed. he eat very little, if he did any thing, he said he was very cold; i asked him if he would take any brandy, he said no he would not, for he had some wine in the carriage. he enquired what he had to pay, i told him what he had had had been in so uncomfortable a manner, that i should not wish to take any thing for what he had had. he did not accept of that, he threw down a napoleon on the table and desired me to take that for what he had himself taken, and to give the servants something out of it; he meant the whole of the servants, for when he got into the chaise the ostler asked him for something, and he said he had left something with his master. _q._ did he go away in the chaise that brought him, or in another chaise? _a._ in the same chaise. _q._ with four horses? _a._ yes, with four horses. _q._ what were the names of the lads that drove him? _a._ james overy and thomas todd, i believe were the boys. i am not quite positive as to the names of the boys. _q._ should you know the person again that you saw that morning if you were to see him? _a._ i think i should, he was very much disguised at that time. _q._ look about, and tell me whether you see him any where? _a._ i do not immediately see any face that i should know again, that i at this moment recollect. _q._ look with care round about? _a._ that is the gentleman, (_pointing to de berenger_.) _q._ do you believe that to be the person? _a._ yes, i do think that is the person--really when i see the face it is the same. _q._ looking again, have you any doubt of it? _a._ i think i can swear that is the gentleman. i have no doubt of it--that certainly is the gentleman. _cross examined by mr. richardson._ _q._ had you ever seen the gentleman before? _a._ no. _q._ nor since? _a._ no not till to-day, not to my knowledge. _q._ the first thing he said was that he was very hungry; and you went to get him something to eat? _a._ yes; and he got out of the chaise, and i got him something. we crossed the yard together. _q._ during all the time you were with him he was getting something to eat? _a._ no; he was sitting in the room part of the time. _q._ you were busy getting him something at the time? _a._ he was standing while i was getting it, and then he sat down; i staid to wait upon him. _q._ what was the whole length of the time you were with him? _a._ i suppose ten minutes. _q._ the greatest part of that time he was eating, was not he? _a._ the greatest part of the time he was talking; i do not think he ate any thing; he took a knife and fork in his hand but i do not believe he ate any thing. _a juryman._ did you observe any thing particular in his dress? _a._ he was dressed pretty much in the way i have described; he had one part of his dress i have not mentioned, which was a large white cockade hanging down very dirty, as if it had been a long time worn. _lord ellenborough._ had you any conversation with him about his communicating this intelligence in any public quarter; or did you give him any advice upon that? _a._ no i did not. when he went away i gave him a card of the road, and requested his favors when he should come that way again; and he bowed, as if assenting. _q._ you have not seen him since? _a._ no i have not. _a juryman._ had he his cap on? _a._ yes he had it on the whole of the time i believe. i have got the napoleon in my pocket that the gentleman gave me. _the witness produced it._ _a juryman._ what did you say was the color of the cap he had on? _a._ i think it was very near the color if not the color of the great coat, to the best of my recollection, looking at it by candle light. _lord ellenborough._ from the circumstances of his appearance, looking at that person before you, you have no doubt? _a._ i have no doubt of it; i can swear to that gentleman, though i have never seen him since. _james overy sworn._ _examined by mr. adolphus._ _q._ did you take up a person at your master's house at rochester? _a._ yes. _q._ do you recollect on what day it was? _a._ on a monday. _q._ can you recollect the day of the month? _a._ no i cannot. _q._ where did you drive him to? _a._ i drove him to dartford. _q._ how was he dressed? _a._ he appeared to have a great coat on. _q._ what house at dartford did you drive to? _a._ the granby. _q._ what kind of a coat had he on? _a._ a grey mixture coat it appeared to be. _q._ did you see any other part of his dress? _a._ yes, a red coat, like an aid de camp's, it appeared to be. _q._ describe the coat, was it adorned with any thing? _a._ he had a star very full indeed. _q._ did you see any thing else? _a._ there was something about his neck hanging. _q._ what had he upon his head? _a._ he had a cap with a bit of white ribband run through the cap. _lord ellenborough._ how was that ribband, in the shape of a cockade? _a._ no it was not. _mr. adolphus._ what sort of a cap was it? _a._ a cap such as officers wear, with a gold lace band round it. _q._ was it day-light when you left him at dartford? _a._ yes; it was about ten minutes before seven when we came to dartford with him. _q._ was it then day-light? _a._ yes it was day-light about two miles before we came to dartford. _q._ did you see the person sufficiently to think you should know him again? _a._ i do not know that i should. _q._ what did he give you at parting? _a._ he gave us two napoleons, and paid me for the dartford horses and for our horses too; he paid me one £ . note and a shilling for the dartford horses, and the rochester horses too, and the turnpikes. _q._ he gave you and the other lad a napoleon a-piece? _a._ yes he did. _q._ who took him up at dartford? _a._ thomas shilling and charles ward. _cross examined by mr. park._ _q._ what was the color of his cap? _a._ i did not take notice of it. _q._ there was a white ribband stuck through it? _a._ yes. _q._ you took so much notice of it you said it was like an officer's cap? _a._ yes. _q._ how do you describe an officer's cap, are there not different sorts of officers caps? _a._ i have seen what they wear when they are not in their regimentals, those they wear in a morning, this was such a cap as they generally wear in a morning, not what they wear with their regimentals in the day-time. _q._ it slouched down i suppose? _a._ yes. _q._ there is a something comes down to shade the eyes? _a._ not on that. _q._ how does it slouch then? _a._ a kind of a turn down, a little way turned down. _q._ what was a little way turned down? _a._ the cap. _q._ what part of the cap, in the front, or where? _a._ in the front. _q._ did you observe what color it was? _a._ no i did not. _q._ whether it was a dark brown? _a._ i did not take any notice of the color. _william tozer sworn._ _examined by mr. adolphus._ _q._ you are an innkeeper at dartford? _a._ yes. _q._ what is your sign? _a._ the crown and anchor. _q._ do you remember on any particular day james overy bringing a fare to any other house in your town? _a._ yes. _q._ what day was it? _a._ about the st of february. _q._ what day in the week? _a._ monday morning. _q._ what sort of person was it you took notice of? _a._ the person that i took notice of was sitting in the chaise. _q._ did you speak to him? _a._ i did. _q._ what passed between you? _a._ i was informed---- _q._ tell us what you told him? _a._ in the first place, i made my obedience to the gentleman in the chaise, hoping that he had brought us some good news. _q._ you said so? _a._ yes. _q._ what did the gentleman say? _a._ he said he had, and that it was all over; that the allies had actually entered paris; that bonaparte was dead, destroyed by the cossacks, and literally torn in pieces, and that we might expect a speedy peace. _q._ did he tell you any thing more? _a._ no; during the conversation i saw him give james overy two gold pieces, which afterwards proved to be french pieces, i had them in my hand. _q._ do you know the name of them? _a._ i cannot say that i do; there was ten francs or something on them. _q._ did you see enough of the person with whom you conversed in the chaise to think that you should know him again? _a._ i am positive i should. _q._ look round and see whether you see him here? _the witness looked round._ _a._ i cannot see him; he is not round here; i cannot say that i am positive. _q._ you do not see him? _a._ no i cannot say that i do. _q._ look from here to the end of the row? _a._ no i cannot say that i am positive. _q._ do you know the boys who drove the baron away? _a._ yes, shilling and ----. _mr. gurney._ before shilling comes in, and when what i say is not heard by him, i must say that the person to be identified should hold his head so as to be seen. _mr. park._ and so he did. i desired mr. de berenger to hold his head gently up, and he did it immediately. _lord ellenborough._ the questions might go much nearer; the witnesses might be asked if that be the person: it is done always at the old bailey in cases of life and death, where the prisoner stands in a conspicuous situation--it is less strong in that case; but to be sure when it is proved in the way it has been, it can be of very little consequence. _thomas shilling sworn._ _examined by mr. adolphus._ _q._ you are a chaise-driver at dartford? _a._ yes. _q._ do you remember on a particular day taking up a gentleman who came in a chaise and four to dartford? _a._ yes. _q._ what day was that? _a._ i do not rightly know the day, but i believe it was on the st of february. _q._ what day of the week? _a._ on a monday. _q._ had you a pair of horses? _a._ yes. _q._ upon your ride to london, did the gentleman say any thing to you? _a._ yes, he discoursed with me a good deal. _q._ who first spoke to him in your hearing? _a._ the first man that spoke to him in my hearing that i took any notice of, was the waiter. _q._ the waiter at your inn at dartford? _a._ yes. _q._ what was the sign of your house? _a._ the granby at dartford. _q._ what passed between him and the waiter? _a._ the waiter asked him whether he had brought any good news; the gentleman said, yes, it was all over; bonaparte was dead; he said he was torn in a thousand pieces; and the cossacks fought for a share of him all the same as if they had been fighting for sharing out gold, and the allies were in paris; then we were ordered to go on. _q._ how far had you gone before this gentleman spoke to you? _a._ to bexley heath, about two miles and a half. _q._ had he before that said any thing to you about driving? _a._ not that i heard. _q._ when he came to bexley heath what did he say to you? _a._ he told me not to hurry my horses, for his business was not so particular now, since the telegraph could not work he thought. _q._ were you in sight of a telegraph then? _a._ no. _q._ what sort of a morning was it? _a._ rather a thick morning; very frosty. _lord ellenborough._ did it appear to you to be so thick a morning that the telegraphs could not work? _a._ it did. _mr. adolphus._ what did you say to him? _a._ i told him i thought the telegraphs could not work, for i knew almost every telegraph between deal and london. he then said, post-boy, don't take any notice of the news as you go along; i told him i would not unless he wished; he said i might tell any of my friends as i returned, for he dar'st to say they would be glad to hear it. he then said that he had sent a letter to the port-admiral at deal, for he was ordered to do so, or he was obliged to do so, i will not be certain which. _lord ellenborough._ you are sure he said so? _a._ i am sure he said so. he said that he had to walk two miles after he came ashore before he got to the ship at dover. he said the frenchmen were afraid of coming so near to dover, for fear of being stopped, the frenchmen that brought him; then we drove on till we came to shooter's hill. _mr. adolphus._ did he tell you why he had sent to the port-admiral at deal? _a._ to have the telegraphs worked, that he said was the reason. _q._ did any thing further pass between you at the time? _a._ not any thing that i recollect. _q._ had you any subsequent conversation at any other part of the stage? _a._ not till i got to shooter's hill; when i came there i alighted from my horse, and so did my fellow-servant; the gentleman then looked out of the window, and gave us part of a bottle of wine; he said we might drink that, because he was afraid the bottle should break, and some cakes with it. _q._ what sort of cakes? _a._ little round cakes; i chucked the bottle away, and handed the glass again into the chaise; he told me i might keep it, that i might have it. he then said, "post-boy, you have had a great deal of snow here, i understand?" i said, "yes, sir, we have." he then said, "here is a delightful morning, post-boy; i have not seen old england a long while before." then he asked me, "which was the first hackney coach stand?" i told him, at the bricklayer's arms, was the first. _q._ did he say why he asked that question? _a._ not a word; he said that would not do, for that was too public; he was afraid some body would cast some reflections, and he should not like that. i told him, i did not think any body would do that, that they would be so glad to hear of the news. then he asked me, if there was not a hackney coach stand in lambeth road? i told him yes. then he said, "drive me there, post-boy, for your chaise will go faster than a hackney coach will, and so you may drive me there." i drove him to the lambeth road, and when i came there, there was no coach on the stand. _q._ where about is the lambeth road? _a._ i went from the dog and duck by the asylum; this coach-stand was at the three stags, there was no hackney coach there. i ordered my fellow-servant to stop, and i looked round and told the gentleman there was no hackney coach there; but that there was a coach-stand at the marsh gate, and if he liked to get in there, i dared to say nobody would take any notice of him--i drove him up along side of a coach. _q._ did he do any thing upon that? _a._ i think he pulled up the side-blind as i came round the corner. _q._ was the side-blind up? _a._ yes, it was up when i came there; i saw it up, but i did not see when he pulled it up. _lord ellenborough._ having been down before, it was up when you got there? _a._ yes, when i got there i pulled up alongside of a hackney coach. _mr. adolphus._ how many hackney coaches were there? _a._ only one; i called the coachman, and the waterman opened the coach door, and i opened the chaise door. _q._ did the gentleman go into the coach? _a._ yes, he did. _q._ how? _a._ he stepped off my step on to that, for he stepped on the body of the coach, or on the step of the coach; i cannot say he never stepped on the ground, the coach and the chaise were too nigh together. _q._ did he make you any present for your trouble? _a._ he then held his hand down, and gave me two napoleons; i have them here now; he did not say one was for my fellow-servant and the other for myself, but i supposed it was so (the witness produced the napoleons.) _q._ did you hear him tell the coachman where to drive to? _a._ i did not. _q._ do you know the name of the coachman or the waterman? _a._ yes, i do. _q._ what is the name of the coachman? _a._ crane. _q._ do you know the waterman's name? _a._ i am not rightly sure; i think they call him bob. i know his person very well. _q._ how was this gentleman dressed, that you drove to town? _a._ he was dressed with a dark fur cap--a round cap, and with white lace, of some sort, round it; whether it was gold or silver, i cannot say; he had a red coat on underneath his outer coat. _q._ what sort of a coat was his outer coat? _a._ i think it was a dark coat, a kind of brown coat--but i will not swear to that. _q._ you saw a red coat underneath it? _a._ yes, i saw a red coat down as far as the waist; i did not see the skirts of it. _q._ did you make any particular observation upon the red coat? _a._ no, i think it was turned up with yellow; but i should not like to swear that. _q._ had it any thing upon it? _a._ it had a star of some sort upon it, but i was not close enough to see that, and cannot swear to what it was. _q._ was that all that you observed of his dress? _a._ no, not quite all, i think; i think upon the outer coat there was fur, a kind of white fur, the same as off a rabbit's skin. _q._ but that you do not recollect with certainty? _a._ no, i should not like to swear to that. _q._ as you conversed so much with that gentleman, do you think you should know him again? _a._ i should know him in a moment. _q._ have you seen him since you have been in court? _a._ yes, that is the gentleman (_pointing to de berenger_.) _q._ have you any doubt that is the person? _a._ not at all. _q._ since the day you drove him, have you seen him before to-day? _a._ i have. _q._ how often? _a._ only once. _q._ where was that? _a._ in king-street, westminster, in a room there. _q._ did you equally well know him then? _a._ i did the moment i saw him. _q._ had you ever the least doubt about him? _a._ never the least in the world; i knew him as soon as i saw him. _cross-examined by mr. richardson._ _q._ have you not been told this morning in what part of the court he sat? _a._ no, i never enquired about it; i looked round when i came in and found him out in a moment; i dare say every gentleman in the court saw me. _q._ had you never seen him before this time you speak of in february? _a._ i have seen him since, i never saw him before february, to my knowledge. _q._ when was it that you heard of the reward which was offered by the stock exchange? _a._ i heard of it the day it was printed. _q._ how long after this transaction happened? _a._ i think two or three days afterwards. _q._ do you remember the club at dartford, called the hat club? _a._ yes, perfectly well; i was there. _q._ do you remember the conversation there, whether crane or you should get the reward? _a._ yes, i remember being asked, whether i thought i should get the reward, and i said i thought not. _q._ you produced your purse, with what you had got? _a._ yes, i produced my purse, and rapped it on the table in this way, but that was money i had laid out before; i had received five pounds from the gentlemen of the stock exchange towards my expences. _q._ what might be your observation, when you rapped it upon the table? _a._ to let them know that i had it. _q._ did you say any thing about the yellow boys? _a._ yes, those were the gold napoleons. _q._ did you not say that the gentleman applauded you, and said you were a clever fellow? _a._ no, i did not, i would have said very wrong if i had, i am sure. _q._ i think they would have done you no more than justice. did you not on that occasion say, you would swear for that side that paid you best? _a._ no, i did not. _q._ on that occasion, nor any other? _a._ no, i never did, you may depend upon it. _q._ nor any thing to that effect? _a._ no, i did not. _q._ who were present at this time? _a._ upon my word i do not know; several members round about. _q._ several neighbours? _a._ yes, they were members. _q._ was a person of the name of man there? _a._ i do not know him. _q._ or wood? _a._ i do not know such a person; there were not above a dozen of them there; but i am not there often myself. _q._ how many members of the club are there? _a._ i do not know, indeed; the hat maker pays my money for me; being very much out, i am not there one time in ten. _q._ when you are there, you do not know who are present? _a._ no, i do not exactly. _lord ellenborough._ what is this hat club? _a._ we pay a shilling a week, and have a pint of beer; i have not been there these several weeks. _lord ellenborough._ you get part of your money back in a hat? _a._ we pay twenty-four shillings, and then have a hat for it. _mr. richardson._ you have described this gentleman's person before to-day? _a._ yes, i have. _q._ you have been examined upon several occasions before this? _a._ i have been examined at the stock exchange, and before the grand jury, no where else. _q._ did not you describe the person as one that had a great red nose, and a blotched face? _a._ a red nose i said, and his face was very red that morning, for it was very frosty. i said he was pitted with the small-pox. _lord ellenborough._ red or not sure you are, of the identity of the face? _a._ yes, i am sure of it. _mr. richardson._ it was you that told him of the stand of coaches in the lambeth road? _a._ yes. _q._ that is before you come to the marsh gate? _a._ yes. _q._ that is not far from the asylum, is it? _a._ no. _q._ you went there for the purpose of getting a coach in the first instance? _a._ yes. _q._ and then you told him he might perhaps get one at the marsh gate? _a._ yes. _william bartholemew was called into court._ _q._ (_to shilling_) is that the waterman? _a._ that is the waterman. _william bartholemew sworn._ _examined by mr. adolphus._ _q._ are you a waterman attending a stand of coaches? _a._ yes. _q._ where? _a._ at the marsh gate. _q._ do you know shilling, the last witness? _a._ yes, by seeing him come up with post chaises from dartford. _q._ he is a dartford boy? _a._ yes. _q._ do you remember at any time in february, his coming with a chaise with a gentleman in it? _a._ yes, the st of february. _q._ what day in the week was it? _a._ on a monday. _q._ with how many horses? _a._ four horses. _q._ at what time in the morning? _a._ between nine and half past nine in the morning. _q._ was there a coach on the stand? _a._ yes. _q._ any more than one? _a._ no more than one. _q._ who drove that coach? _a._ one crane. _q._ did you see the gentleman get into it? _a._ yes, i did. _q._ how did he go in? _a._ he stepped out of one into the other? _q._ did you open the door and let down the step for him? _a._ yes. _q._ how was that gentleman dressed? _a._ he had got a kind of brown cap on, and a dark drab military sort of coat. _q._ was there any thing round the cap? _a._ there was a sort of band or something round the cap. _q._ what had he under his military great coat? _a._ a scarlet coat. _q._ did you see any thing on the scarlet coat? _a._ i only took notice of the lace upon it. _q._ where did that gentleman order the coach to drive to? _a._ up to grosvenor square. _q._ to what street? _a._ i do not recollect whether he told me any street, only grosvenor square. _q._ do you think you should know that gentleman again? _a._ i do not know; dress makes such an alteration. _q._ look round, and see whether you can see any one. _a._ i do not see that i can recollect him, only seeing him that half minute. _q._ look at that gentleman who is stooping down to write, (_de berenger_,) and see whether you think that is like him? _a._ yes, i do upon my word, but i only saw him for about half a minute. _cross-examined by mr. park._ _q._ you, being a waterman, take that particular notice of every body that gets into a hackney coach, that you are quite sure having seen him step from the chaise into the coach, that he is the man? _a._ i said at first, that the dress made such an alteration that i should think i should hardly know him. _q._ if i were to get into your coach with this dress on, and afterwards with my ordinary dress, you would hardly know me again? _a._ no, i should think not. _richard barwick sworn._ _examined by mr. adolphus._ _q._ what are you? _a._ i am clerk to messrs. paxtons and company. _q._ where is their house of business? _a._ in pall mall. _q._ they are bankers? _a._ yes, they are. _q._ do you remember a particular circumstance in passing near the marsh gate any morning? _a._ yes, i do. _q._ on what day? _a._ monday morning the st february. _q._ what did you observe in passing? _a._ i observed a post chaise with four horses, it had galloped at a very great rate, the horses were exceedingly hot, and the man was getting into a hackney coach that the people there told me had come out of that chaise. _q._ did you hear that person who got into the coach say anything? _a._ no, i had no conversation with any body. _q._ did you follow that coach? _a._ i did. _q._ how far? _a._ i saw it as far as the little theatre, in the haymarket. _q._ why did you follow that hackney coach. _a._ because i wanted to know what the news was. _lord ellenborough._ how came you to know any thing about the news? _a._ i was told, it was a general officer arrived with news, and i wanted to know what it was. _lord ellenborough._ you were told it was an officer arrived with news? _a._ yes, i was. _mr. adolphus._ then you went to your own business, having followed this coach to the haymarket? _a._ yes. _q._ did he pass by any of the public offices? _a._ yes, he did. _q._ did he stop at any of them? _a._ no. _q._ he went straight to the haymarket? _a._ yes, he did. _q._ was that the reason why you desisted from following? _a._ it was nine o'clock, and i must be at the office by that hour, and therefore i did not go on. _q._ did you see enough of that person to know him again? _a._ i believe, i did. _q._ look at him, and see whether you know his person again? (_the witness looked round._) _lord ellenborough._ did you see his body? _a._ i saw his face in the coach, he had a cap on such as the german cavalry wear, after an evening parade, with a gold band upon it. _mr. adolphus._ have you seen that person in court? _lord ellenborough._ there is no objection to his looking at the defendant, and seeing whether he is the person. (_the witness looked at the defendant de berenger._) _a._ i really do not know that i do see him exactly. _mr. park._ this is the gentleman said to be the man. _lord ellenborough._ if you do not recollect the gentleman's person, say so. _mr. park._ is the result of your looking that you do not believe this to be the man? _a._ he is something like him. _q._ one man is something like another, he goes upon two legs, and has two hands, and so on. _a._ it is like him certainly. _william crane sworn._ _examined by mr. adolphus._ _q._ do you drive a hackney coach? _a._ yes. _q._ what number. _a._ . _q._ on a monday morning in february do you remember taking up a fare at the marsh gate? _a._ yes. _q._ what day of the month was it? _a._ the st of february. _q._ where did the fare come from? _a._ from dartford. _q._ out of what? _a._ a post chaise and four--a dartford chaise. _q._ where were you directed to drive to? _a._ to grosvenor square. _q._ where to there? _a._ he did not say where in grosvenor square. _q._ where did you set him down? _a._ i drove him into grosvenor square, and then the gentleman put down the front glass and told me to drive to no. , green street. _q._ did the gentleman get out there? _a._ yes. _q._ did you hear whom he asked for? _a._ he asked for colonel or captain somebody, i did not hear the name, and they said he was gone to breakfast in cumberland street. _q._ what did the gentleman say then? _a._ the gentleman asked if he could write a note to him. _q._ did he go in? _a._ yes, he went into the parlour. _q._ were you discharged then? _a._ yes, the gentleman gave me four shillings before he went in, and i said, i hoped he would give me another shilling: he took out a bit of a portmanteau that he had, and a sword, and went in, and came out into the passage and gave me another shilling. _q._ what sort of a portmanteau was it? _a._ a small leather one, big enough to wrap a coat up in. _q._ what sort of leather? _a._ i think black leather, as well as i can recollect. _q._ have you seen that person since that you drove that morning? _a._ yes, i saw him in king street, westminster. _q._ at the messenger's house? _a._ at mr. wood's house. _q._ do you see him in court? _a._ i think this is the gentleman, here, (_pointing to de berenger_.) _q._ were you of the same opinion when you saw him at mr. wood's? _a._ when i came down stairs he looked very hard at me. _q._ did you know him then? _a._ yes, it was something of the same appearance, but he had altered himself very much by his dress. _cross-examined by mr. richardson._ _q._ you went to wood's for the purpose of seeing him? _a._ yes, i did. _q._ wood is a messenger of the alien office? _a._ he lives in king street. _q._ he was pointed out there as being the person in custody? _a._ no, i walked down stairs, and met the gentleman coming up stairs. _q._ you thought you saw a resemblance? _a._ yes, i thought he was something like the same gentleman that i had carried. _q._ you do not pretend to be able to recollect every person you carry in your hackney coach every day? _a._ no, but this gentleman that i took from a post chaise and four, when he got out at green street i saw that he had a red coat underneath his great coat. _q._ you did not open your coach to him, the waterman did that? _a._ yes, the post boy ordered me to get on the box. _lord ellenborough._ when he got out you opened the door to him i suppose? _a._ yes, i did. _mr. richardson._ did you open the door, or the footman at the house? _a._ i opened the door. _q._ and he paid you and passed into the house? _a._ yes, he did. _q._ what was the colour of his great coat? _a._ a brown grey great coat, with a brown cape with lace to it. _q._ you have before described the great coat as a brown great coat, have not you? _a._ a kind of a brown grey. _q._ did not you describe it before as a kind of a brown coat? _a._ no. _mr. gurney._ i will now prove the finding the clothes in the river, and then prove the purchase of them. _george odell sworn._ _examined by mr. gurney._ _q._ are you a waterman? _a._ yes. _q._ do you remember in the month of february last, fishing up any bundle in the river? _a._ in the month of march. _q._ where did you fish it up? _a._ above the old swan stairs, off against the iron wharfs. _q._ were you dredging for any thing? _a._ i was dredging for coals with a drag. _q._ what kind of a bundle did you find? _a._ i picked up a bundle, tied up with a piece of chimney line, or window line in the cover of a calico chair bottom. _q._ what was in it? _a._ i think there were two sleeves of a coat, and then a coat cut to pieces, and embroidery, and a star, and a silver coat of arms, with two figures upon it. _q._ how was it sunk? _a._ with three pieces of lead, three screws, and some marks for letters. _q._ with some metal? _a._ yes, and some bits of coal. _q._ did you give that which you found to mr. wade, the secretary of the stock exchange? _a._ yes. _q._ how soon after you found it did you give it to him? _a._ i picked it up on the wednesday, and i carried it there on the saturday. _mr. park._ can you give us the day of the month when you picked this up? _a._ the th of march. _mr. gurney._ did you find it on the th of march, or give it to mr. wade on that day? _a._ i picked it up on that day, about half after eleven o'clock in the day; i can bring plenty of witnesses to my picking it up. _q._ are these the sort of things that you picked up? (_shewing a bundle of clothes with star, &c. to the witness._) _a._ these are the sort of things, but the star was not in that state it is now; the star was in half, and one of the birds was off. _mr. gurney._ this, my lord, is an order of masonry, and this i understand a russian order of knighthood, the order of st. ann. _mr. francis baily sworn._ _examined by mr. gurney._ _q._ you are of the stock exchange? _a._ yes, i am. _q._ were you present with mr. wade, when he received the parcel from odell? _a._ i was,--from the last witness in the box. _q._ was it delivered over to mr. lavie? _a._ i believe it was, it lay upon the table some time. _q._ did you examine it? _a._ i did, very minutely. _q._ are the things contained in that parcel? _a._ i believe them to be, they appear to be the same. _mr. gurney (to mr. lavie)._ did you receive that from mr. wade? _mr. lavie._ i did, i took it from the stock exchange room. _q._ mr. wade and mr. baily were present? _mr. lavie._ yes, they were. _mr. robert watson wade sworn._ _examined by mr. gurney._ _q._ you are the secretary at the stock exchange? _a._ i am. _q._ did you, in company with mr. baily and other gentlemen, receive from odell the bundle said to be found in the river? _a._ i did. _q._ was it given to mr. lavie? _a._ it was. _q._ the star we understand was then in two pieces? _a._ yes. _q._ was it afterwards sewn together? _a._ it was, for the purpose of being exhibited. _simeon kensington solomon sworn._ _examined by mr. gurney._ _q._ i believe you are a military accoutrement maker? _a._ yes, i am. _q._ have you a shop at charing-cross, and another at new-street covent garden? _a._ we have. _q._ on the saturday the th of february do you remember any person making a purchase of any military dress at your house? _a._ yes, i do. _q._ what dress was purchased of you? _a._ a military great coat and foraging cap. _q._ what is it made of? _a._ dark fur. _q._ was any thing on it? _a._ it had a pale gold band. _q._ have you since had a cap and a coat made exactly resembling them? _a._ i have. _q._ are these the cap and the coat you have had so made? (_shewing them to the witness._) _a._ they are. _q._ do they exactly resemble the cap and the coat you sold? _a._ as nearly as i could possibly recollect. _q._ what else did the person purchase? _a._ they purchased at our house in new street---- _q._ you suppose some order had been given in new-street, did any thing come from new-street as having been ordered there? _a._ yes there did. _q._ you were at charing cross? _a._ i was. _q._ did any person come to your shop at charing-cross and take away that which had been sent from new-street which you furnished? _a._ yes, he did. _q._ was there any other coat purchased besides that great coat? _a._ there was a military regimental coat, a staff coat was brought from new-street. _q._ was that scarlet? _a._ yes, fitted for a staff officer the uniform of an aid de camp. _q._ with this sort of gold lace upon it? _a._ yes. _q._ have you examined these fragments? _a._ yes, i have. _q._ were there any ornaments besides? _a._ there was a star and a badge. _q._ look at that star and badge and tell me whether you believe them to be the same? _a._ yes, i do believe them to be the same. _q._ why do you believe them to be the same? _a._ the star i certainly believe to be the same, because we had the very fellow star. _q._ except these two, did you ever see any star like them? _a._ i do not know that ever i did. _q._ do you believe that badge to be the same? _a._ the badge i did not notice much. _q._ you sold a badge? _a._ the badge came from our house in new-street. _q._ had you any conversation with the person? _a._ yes i had. _q._ you have examined these fragments? _a._ i have. _q._ do you believe them to be the fragments of the dress you furnished, or of such a dress? _a._ they appear to be those materials, as far as i can judge in that state. _q._ and the same kind of lace? _a._ the same description of embroidery. _q._ speaking of a thing so cut to pieces, does it appear to you to consist of the remnants of the dress you furnished? _a._ yes, except that the scarlet is very much discoloured by being under water, it appears the same description of coat. _q._ had you any conversation with the person as to the use of these things? _a._ i had very little conversation as to the sale of the uniform, for they were already purchased before i saw him, with respect to the great coat i sold that and also the cap. _q._ did he mention for what purpose they were wanted? _a._ he observed that they were wanted for a person who was to perform the character of a foreign officer, to be sent into the country that evening. _q._ did he take them away with him? _a._ yes he did. _q._ did you offer to lend them to him? _a._ where he purchased the uniform---- _q._ if that was not in your presence you will not state it--did he take them away with him? _a._ yes he took them away in a coach. _q._ had he any portmanteau with him? _a._ he had a small portmanteau. _q._ did he beat you down in the prices? _a._ no, he did not. _q._ did he say any thing about money? _a._ no, he made no observations, he merely paid for them. _q._ you were conversing with that person for some time? _a._ for a short time. _q._ have you since seen him again--have you seen any person that you believed to be the same? _a._ i was introduced to a person---- _q._ where was that? _a._ at the parliament-street coffee house. _q._ do you believe that person you saw at the parliament-street coffee house to be the person who so made the purchase? _a._ that i cannot undertake to say. _q._ what do you believe? _a._ in point of appearance he resembles him, except that the person whom i served had whiskers. _q._ i suppose the person you saw in parliament street had not? _a._ he had not. _q._ look at him now and tell me whether you do or do not believe him to be the person? (_the witness looked at the defendant de berenger._) _a._ this is the person i was introduced to at the coffee-house. _q._ upon the oath you have taken, what is your belief respecting him? _a._ i really cannot undertake to swear that he is the person? _q._ what do you believe? _a._ the gentleman that represented himself to be mr. wilson was dressed in a different manner, he had black whiskers, and from that circumstance i could not possibly undertake to swear it was the same person. _q._ what is your belief? _mr. park._ that belief may be founded on different facts? _lord ellenborough._ to those facts you will examine, mr. gurney is now examining, there is no objection to the question. _mr. gurney._ what is your belief? _a._ upon my word it is impossible for me to say. _q._ do you mean to say that you have no belief upon the matter? _a._ i mean to say i cannot undertake to swear it is the person. _q._ what is your belief? _a._ i believe it resembles the person, except that the person i served had whiskers. _q._ making allowance for whiskers which may be taken off in a minute, what is your belief upon the subject? _a._ upon my word it is impossible for me to say. _q._ you can certainly say what is your belief? _lord ellenborough._ you are not asked as to whether you are certain, but to your belief. _a._ if i were to say i believe it is the person i might say wrong, if i were to say i believe it is not the person i might say otherwise, it may be the person but i cannot undertake to say i believe it is. _mrs. abigail davidson sworn._ _examined by mr. gurney._ _q._ in the month of february last did you reside in the asylum buildings? _a._ yes. _q._ that is near to the asylum? _a._ yes. _q._ is the house within the rules of the king's bench? _a._ yes it is. _q._ did mr. de berenger lodge with you? _a._ he did. _q._ do you remember on what day he finally quitted your house? _a._ on the th of february. _q._ what day of the week was that? _a._ sunday. _q._ do you remember where he was the sunday before that? _a._ no. _q._ did you see him on the morning of that sunday? _a._ no, on sunday the th you mean, i did not. _q._ did he sleep at home that night? _a._ i cannot say. _q._ did you see him that night at all? _a._ we never attended to the door. _q._ did you usually hear mr. de berenger in the morning? _a._ yes. _q._ much or little did you hear him? _a._ we heard him very frequently. _q._ did you on the morning of monday the st hear him as usual? _a._ no. _q._ what did you use to hear of him on the mornings on which you did hear him? _a._ we heard the bell ring for the servant. _q._ once or more than once? _a._ more than once? _q._ what rooms did he occupy? _a._ the whole of the upper part of the house. _q._ what part did you occupy? _a._ the parlours. _q._ how many rooms up stairs were there? _a._ four. _q._ and you and your husband occupied the two parlours? _a._ yes. _q._ on other mornings when you heard him besides ringing the bell did you hear any thing else respecting him? _a._ occasionally mr. de berenger would play on the violin or the trumpet. _q._ did you hear him walk about? _a._ yes. _q._ did mr. de berenger then wear whiskers or no whiskers? _a._ whiskers. _q._ was there any morning on which you were at home that you did not hear his bell and his walking about? _a._ no, i generally heard his bell. _q._ did you see him come home on the monday? _a._ no. _q._ how early on that evening did you see him? _a._ in the evening about a quarter or half past five. _q._ had you heard him in the house before that time? _a._ i heard him in the afternoon. _q._ you say he quitted your house on the sunday after? _a._ yes. _q._ do you remember any gentleman calling there the day before he quitted with a letter? _a._ on the saturday night-- _q._ he called with a letter? _a._ yes he did. _q._ have you since seen that gentleman again? _a._ yes. _q._ where did you see him? _a._ i saw him at the temple? _q._ was it at the crown office? _a._ i do not know what office it was. _q._ was mr. lavie present at the time you saw him? _a._ yes he was. _q._ did you point him out to mr. lavie. _a._ i cannot say that i should positively know the gentleman. _q._ do you believe him to be the same? _a._ yes, i think it was. _q._ the same you had seen on the saturday deliver that letter? _a._ yes, i think so. _q._ had mr. de berenger two servants of the name of smith, william smith and his wife? _a._ yes. _q._ when he dined at home did his servants attend him? _a._ always. _q._ on the sunday before he finally went away, sunday the th, did he dine at home? _a._ i cannot answer that. _q._ what was his usual dinner hour? _a._ about four o'clock. _q._ where were his servants at four o'clock on that day? at home or not? _a._ i think they went out early on that day. _q._ what do you mean by early? _a._ i mean two or half past two o'clock. _q._ do you remember any thing about your key, respecting either of them, whether either of them had your key? _a._ there was a private place where the key always hung for the accommodation of mr. de berenger and us. _q._ where was the key put that night? _a._ the key was always under the care of mr. smith. _q._ you did not see where he put it that night, did you? _a._ no, i did not. _cross-examined by mr. park._ _q._ what sunday was it that these servants went out to dinner at two or half past two? _a._ on sunday the th. _q._ you were preparing to go to chapel on that sunday at eleven o'clock, and mr. de berenger went out at the time. _a._ mr. davidson was going out, i did not go out. _q._ you were not well? _a._ no. _q._ mr. davidson was going out. _a._ yes, but i did not see mr. de berenger. _q._ did you hear your husband make an observation at the time? _a._ yes, i did. _q._ you did not yourself attend to the door? _a._ no. _q._ this gentleman had been your lodger for some years, had he not? _a._ nine months? _q._ you do not mean to represent, that he slept from his own bed on that sunday, the th? _a._ i cannot say that he did, or that he did not. _q._ you do not make his bed or go into his room? _a._ no. _q._ do you sleep in the parlour? _a._ yes, we have the two parlours. _q._ what is your general hour of rising in the morning? _a._ between seven and eight. _q._ mr. de berenger's time of trumpeting is not so early as that i suppose? _a._ i have heard him at nine o'clock. _q._ he did not alarm the neighbourhood at seven o'clock? _a._ no, i have heard him by eight or nine. _q._ not so soon as that i should think in the month of february, not being very warm weather at that time? _a._ i cannot speak to the time. _q._ if a person went out at eight o'clock that morning, you had no particular reason to know of it? _a._ no. _q._ you had no call to look after him on the sunday, or monday, or tuesday morning? _a._ no. _q._ and whether he slept at home or did not, you cannot take upon yourself to say? _a._ no. _re-examined by mr. gurney._ _q._ my learned friend has asked you as to your husband observing upon mr. de berenger's going out on the sunday morning: in what words did your husband make the remark as to mr. de berenger's going out? _a._ he called out, our lodger is gone out with a new great coat on. _mr. germain lavie again called._ _examined by mr. gurney._ _q._ who was the gentleman that mrs. davidson pointed out to you? _mr. serjeant best._ i object to that, that is a leading question. _mr. gurney_. i beg pardon.--did the last witness point out any person to you at the crown-office, at the time of striking the jury? _a._ before she came into the crown-office she saw mr. cochrane johnstone getting out of a hackney coach at the crown-office door--she then told me---- _q._ did she point out any person to you as having seen him before? _a._ no, she did not then. _q._ did she afterwards fix upon any person as having seen him? _a._ no she did not, unless i can speak to what passed before. _q._ did she mention having seen any person get out of a hackney coach? _a._ yes. _q._ who was that person that she observed upon? _a._ the person she pointed out to me as having seen get out of a hackney coach was mr. cochrane johnstone--she staid the whole time of the striking of the jury, he struck the jury himself. _lord ellenborough._ then the whole of it is, that the person who was striking the jury, was mr. cochrane johnstone? _a._ yes. _mr. gurney. (to mrs. davidson)._ was that person the person that you believe brought the letter? _q._ i cannot be positive to his person. _q._ do you believe that to be the person? _a._ i think it was. _mrs. abigail davidson._ _cross-examined by mr. serjeant best._ _q._ how came you to go for the purpose of striking the jury. _a._ a person from mr. lavie came and fetched me for the purpose. _q._ to attend to assist in striking the jury? _a._ no, to see mr. johnstone. _q._ you were told mr. johnstone was to be there? _a._ yes. _q._ and going there you saw a person taking a part with respect to the striking of the jury? _a._ i saw a gentleman get out of the coach as i was standing in the passage, i saw a gentleman come across, that i thought was the person, but i could not be positive. _q._ can you take upon yourself to swear now, that was the person? _a._ no, i would not swear it. _re-examined by mr. gurney._ _q._ when you saw the person at the time he left the letter, had you any reason to know what his name was? _a._ no, i had never seen the gentleman before, but in conversing with smith, mr. de berenger's servant----. _q._ had you any conversation about him with smith, mr. du bourg's servant? _a._ i had. _mr. gurney._ i do not ask you what it was, my learned friends may if they please. _launcelot davidson sworn._ _examined by mr. gurney._ _q._ are you the husband of the last witness? _a._ yes. _q._ mr. de berenger we find lodged in your house? _a._ he did. _q._ do you remember on what day he quitted your house? _a._ the th of february i think. _q._ what day of the week? _a._ sunday. _q._ do you remember seeing him go out on the sunday before the th. _a._ yes. _q._ at what hour of the day? _a._ before eleven. _q._ have you any reason to know the time? _a._ yes, i had been out before, and i returned home and stood before the parlour window waiting to hear the asylum clock strike eleven, to go to chapel. _q._ how was he dressed? _a._ at that time that i saw him go out, i had seen him ten minutes before come in. _q._ how was he dressed when he came in before? _a._ he had a plaid cloak on that he had worn nearly all the winter, he and i came in together, he was just before me. _q._ when he went out again, how was he dressed? _a._ he had just such a coat as this on as to colour, (_the grey coat before produced_.) _q._ did it appear to be new or old? _a._ i cannot exactly say, but as he went down the yard, i said to my wife who was in the back parlour, there goes our lodger, he has a new great coat on, just before he had his plaid on when i came in. _q._ did he come home again at all during that day? _a._ not that i saw. _q._ did you see or hear him at all during that day? _a._ no, i did not. _q._ did you see or hear him the next morning? _a._ no, i am not at home--i always go out the early part of the morning. _q._ at what time do you go out? _a._ about nine. _q._ before nine had you either seen or heard him? _a._ no, i had not. _q._ do you usually hear him in a morning before that time? _a._ yes, i generally used to hear him walking about, or ringing for his servant, or something or other. _q._ on that monday morning before you went out, did you hear those things you generally did? _a._ no, i did not, and we made the observation upon it, and also upon the servants going out at two o'clock, which was not customary. _q._ at what time on the sunday did they go out? _a._ i think about two o'clock. _q._ at what time did they return? _a._ that i cannot say. _q._ did they return that evening? _a._ i dare say they did, but we never opened the door? _q._ were they out or at home at four o'clock? _a._ that i cannot say, i do not think they were at home. _q._ what was mr. de berenger's usual dinner hour? _a._ about four o'clock. _q._ did they attend him at dinner? _a._ the man servant did. _q._ and the woman servant cooked his dinner? _a._ yes, she did. _q._ did he dine at home on that sunday? _a._ no, he did not. _q._ i do not ask you what conversation took place between you and the smiths' next day respecting the sunday night, but did any conversation take place on that subject? _a._ yes, there did. _q._ on the sunday afterwards he left your house? _a._ he did. _q._ did you see him go away on the sunday after? _a._ no. _cross-examined by mr. richardson._ _q._ you had nothing to do with his domestic life, with his dinner, or letting him into the house, or letting him out of it? _a._ no. _q._ his servants attended to all that? _a._ yes. _q._ he might come in or go out without your observing it? _a._ yes, he might, but it is almost impossible i should think, because he generally gave a very loud rap at the door, and he had very few visitors. _q._ you yourself go out early in the morning upon your own business? _a._ yes, about nine o'clock. _q._ do you stay out a considerable part of the day? _a._ yes. _q._ what is your business? _a._ a broker. _q._ at that time you acted as a broker? _a._ i acted as a broker's clerk at that time. _q._ you are out a considerable part of the day, sometimes more, sometimes less. _a._ yes. _mr. gurney._ now my lord i am going to what i have stated as the underplot, respecting m'rae, sandom, lyte, and holloway. _thomas vinn sworn._ _examined by mr. bolland._ _q._ in consequence of a note that was left at your house, did you go to the carolina coffee house in february last? _a._ i did, where i met m'rae. _q._ what day in february was it? _a._ on the th of february the note was dated, and i received it the th. _q._ on what day did you go to the carolina coffee house? _a._ on the th in the morning. _q._ did any body accost you there? _a._ i met m'rae, who was at that time in company with an elderly gentleman, he desired me to sit down and he would be with me presently. _q._ had you known m'rae before? _a._ i had some years. _q._ did he return to you as he said he would? _a._ he was not out of my sight, he was standing near the door, and in the course of seven or ten minutes, as far as i can recollect, he came and joined me. _q._ upon his joining you what passed? _a._ he told me he had known me a long time, and that he thought he had now an opportunity of making my fortune; that he knew from the knowledge i had of languages, particularly that of the french, i should have an opportunity of both benefiting others and myself. _q._ what answer did you make? _a._ i asked him what the object was, and whether it was to travel abroad; he told me it was not to travel abroad, but it was probably to travel at home, and that almost immediately; that it was a scheme that he had in contemplation, employed by men of affluence and consequence, and that he thought no man more competent to that than myself.--on my asking him if there was any thing of moral turpitude in it, he said that there was none but that it was practised daily by men of the first consequence, it was nothing more nor less than biting the biters, or in other words, a hoax upon the stock exchange. i asked him in what way i could attend to it, or in what way it was to be performed; he told me by going down to dartford, folkestone, or dover, as i should receive instructions, and that, that evening, but that it was necessary to have for himself and me, two dresses appropriated to that of french officers. i here stopped him, and asked whether he really meant me to be employed in this transaction, to which he replied, certainly, and that i should be in the first place remunerated, and ultimately have a fortune made me. i replied with indignation, that i would as soon be concerned in a highway robbery, that i thought he had known me better than to have suggested to me a plan of the kind, and expressed myself rather beyond the usual tone of my voice, hurt at it, he endeavoured to hush me by saying people would overhear us, he endeavoured to hush me by the ejaculation _ish_ for that we should be overheard there. _lord ellenborough._ did he say you might probably be overheard there? _a._ yes, he did, and then he took me out of the coffee-house and went up cornhill where i left him, but recollecting this was only what was related to me, and that if ever it took place or did not, it was impossible that what i said could be any proof, i therefore considered that i had better---- _mr. alley._ give us the facts if you please, and not the reasons? _mr. bolland._ do not trouble my friend with your reasons as he does not like them, but tell us what you did? _a._ i returned and told him if he would go with me to another coffee-house, i would introduce him to a person, who though i would not undertake the business might do it. _q._ what was your reason for doing that? _a._ only that i might have a witness. _mr. alley._ i object to that reason being stated. _lord ellenborough._ this is only introductory to what he is about to state. i presume no one can be more interested than i am in his narration being short? _a._ i told him i would take him to a coffee-house where a person was who might engage in this hoax. _lord ellenborough._ i beg you will not call it by that name--such an offence as this. _mr. bolland._ did you take him to the coffee-house? _a._ yes. _q._ what coffee-house? _a._ the jamaica--there was a young man there to whom i was about to introduce him, but he turned round suddenly and i did not. _q._ did any thing more pass between m'rae and you? _a._ no, nothing more. _q._ any thing about french terms? _a._ i recollect myself--in consequence of m'rae returning, he asked me whether i would not give him in writing the terms _vive le roi_--_vive les bourbons_;--which in the expectation of his attending to this young man, (this was in the jamaica coffee-house) i gave him. _q._ did you give him any other? _a._ none other to my knowledge. _q._ was that the letter you received from m'rae? (_shewing a letter to the witness._) _a._ that is it. _q._ is that m'rae's writing? _a._ it is. (_the letter was read as follows:_) _february , ._ mr. vinn, please to meet me at the carolina coffee-house, birchin-lane, about eleven to-morrow, upon very particular interesting business. yours, very respectfully, alexander m'rae. _cross-examined by mr. alley._ _q._ as i have not the pleasure of knowing you, what is your business? _a._ i am an accountant. _q._ have you been acquainted for any length of time with mr. m'rae? _a._ i believe five years and a half, or nearly six years. _q._ have you been concerned in any business in the stock exchange? _a._ no. _q._ you were not in the habit of buying and selling as a broker? _a._ no. _q._ it was an odd thing that mr. m'rae should resort to you in such a base transaction, you being in the business of an accountant? _a._ i have been in business and have been unfortunate, and since have been an accountant. _q._ not to lose your character i take for granted? _a._ i hope not. _q._ there was no other person present to hear this conversation? _a._ he was talking with a gentleman when i entered. _q._ this rests upon your own testimony? _a._ we afterwards joined a party, but no person heard the conversation but ourselves, except that any person might hear me when i became vociferous. _q._ you quite met my approbation when you told me that you considered this as base as if he had asked you to go on the highway--how came you to propose a friend of yours after that? _a._ it was merely for the purpose of having a witness to the offer to me, because if not, and this took place what i had said would have been of no effect had it been rendered completely abortive by this failing with me. _q._ then am i to understand you thought it better to let this wickedness be practised in order that it might afterwards be proved? _a._ i am sorry i am so misunderstood, i only wished it should not be promulgated to the world merely on my _ipse dixit_, but on the testimony of another. _q._ you did introduce him to your friend? _a._ no, i did not, he would not be introduced. i had communicated to my friend the business in question before he came. _q._ how soon did you communicate this to the stock exchange? _a._ i communicated it within ten minutes afterwards on that day. _q._ after the thing had been publicly known? _a._ no, i went immediately on this application being made and promulgated it to mr. rothery, of the atlas printing-office, in houndsditch; i afterwards went to a house in clement's lane, where i promulgated it to thirteen or fourteen different persons, and i made it public daily in all the companies i went into. _q._ was that before this happened? _a._ it was on the th i made public, not the name of m'rae, but that such a thing had been offered to me, which i refused with indignity. _q._ some of these gentlemen are here as witnesses to-day i suppose? _a._ i did not think it necessary, but i am perfectly willing that they should be called, i have seen two of them in court and probably they may be so now. _lord ellenborough._ this is merely a meditated something if you think it worth while to pursue it you may. _mr. alley._ he only says that it rests upon his testimony, that was all i wanted to know--you gave him two bits of french to assist him however? _a._ after i had agreed to take him to another friend, in order to get him to that business, i certainly did mention the name of _vive le roi_--_vive le bourbons_. _q._ would not you have thought it quite as honest and as much to your purpose to have omitted that? _a._ you will see that that was done for the purpose i have mentioned. _mr. gurney._ was it done in order to get a conformatory witness? _a._ it was done with that intent and that only. _sarah alexander sworn._ _examined by mr. bolland._ _q._ you live at no. , fetter-lane, do you not? _a._ yes, i do. _q._ how long have you lived there? _a._ i have lived there ever since last september. _q._ do you know mr. m'rae? _a._ yes. _q._ did he lodge with you? _a._ not with me--he lodged on the same floor that i did. _q._ is he a married or single man? _a._ a married man; he had his wife with him. _q._ do you recollect any thing passing in february last, with regard to mr. m'rae? _a._ yes, on a saturday night. _q._ what saturday night? _a._ the th of february. _q._ where were you at that time? _a._ in my own room; he came into my room and brought it and gave it to his wife. _q._ his wife was in your room? _a._ yes. _q._ what did he bring home and give to his wife? _a._ a small parcel; he gave it to his wife and told her it was of value and to take care of it. _q._ did he say any thing else to her? _a._ nothing else. _q._ did you see any thing more of that parcel on that night? _a._ not that night. on sunday the th, he went out about ten o'clock, between ten and eleven. _q._ did he return again and when? _a._ he returned before twelve. _q._ did he bring any thing in with him? _a._ he brought two coats and two opera hats. _q._ did he bring the two coats and two opera hats open or inclosed in any thing? _a._ they were in a bundle. _q._ did you see them? _a._ yes. _q._ what sort of coats were they? _a._ they were very dark blue, done with braiding--officers coats. _q._ what coats were they? _a._ like officers coats. _q._ what was the braiding? _a._ it was to ornament the coats. _q._ what was it done in? _a._ in flowers. _q._ of worsted or silk? _a._ of worsted. _q._ what do you mean by opera hats? _a._ shutting together. _q._ did you remark how the coats were lined? _a._ one was lined with white silk. _q._ were the coats alike, or did one appear of more rank than the other? _a._ one appeared of more rank than the other; one was better than the other, and so was one of the hats. _q._ were the hats plain or ornamented in any way? _a._ one was black and the other ornamented on one side. _q._ what with? _a._ with a brass plate or something of that kind at the end, and a gold tassel at each corner. _q._ upon his producing them did he do any thing with them? _a._ he put them on and asked me if he looked like an officer, and i said yes, he did. _q._ what did he then do? _a._ he went out again and came home again before one and brought some white ribband with him. _q._ did you see him do any thing, or hear him say any thing about that white ribband? _a._ yes, he wanted two cockades to be made. _q._ to whom did he apply to make those cockades? _a._ to his wife--they were to be made round. _q._ was any thing said to him either by you or his wife as to the purpose, to which they should be applied? _a._ his wife asked him what they were for, and what he was going to do with them, and he said they were to deceive the flats. _q._ did you see what he did with the cockades? _a._ he put them into his pocket and took the coats in his hand, and went out saying he must be at billingsgate to go down to gravesend by a quarter before two. _q._ what did he do with the hats? _a._ he put them into the bundle. _q._ he then went away, did he? _a._ yes. _q._ when did you see mr. m'rae again? _a._ about the same time the next day, about half-past one, or a quarter before two, i met him in cursitor-street. _q._ did he say any thing to you? _a._ he gave me a shilling and asked me to go to the cook's shop for his dinner. _q._ did any thing else pass in cursitor-street between you? _a._ no, not then, i went for his dinner. _q._ how was he dressed then? _a._ just the same as he went out--in his own cloaths. _q._ had he any thing with him? _a._ a bundle. _q._ was that the same bundle he took out with him apparently? _a._ he brought home one coat and one hat. _q._ did you see the contents of that bundle when he got home? _a._ yes, the best coat and the best hat he brought home with him. _q._ did he tell you where he had been? _a._ he said he had slept at northfleet, but he had the appearance of not having been a bed at all. _q._ he appeared tired? _a._ he appeared very tired. _q._ did he bring the cockades back? _a._ yes, he brought the cockades back in his pocket, the ribband was taken off. _q._ by whom? _a._ by his wife; and the paper they were quilled on was thrown into the fire and the ribband made use of for strings, they had not buckram, and they made up the cockades on paper. _q._ was any thing done with the coat? _a._ they took the white lining out of the coat, and carried it to the dyers to be dyed black. _q._ they said they should take it to the dyers to be dyed black? _a._ i know they took it out of the house to the dyers, and the coat he wore. _q._ before this how long had mr. m'rae lodged with you? _a._ he lodged there before i went, he went about a week before me, i went in september. _q._ from september to february had you lodged together in that house? _a._ yes. _q._ had you been acquainted with him and his wife? _a._ never before that, but at that house we kept but one fire; coals were very dear, and we lived a good deal together there. _q._ had you any means of judging mr. m'rae's circumstances as to poverty or wealth? _q._ he was poor, he never had any money except it was a shilling or an eighteen penny piece. _q._ after this expedition to northfleet, how did he appear in circumstances? _a._ oh, better; he had a £ . note and a £ . note, and the day before he left his lodgings he had three £ . notes. _q._ do you mean before he finally left his lodgings? _a._ yes. _q._ when was that? _a._ the second of march i think it was, the second or third to the best of my knowledge. _q._ do you know of his purchasing any new cloaths for himself? _a._ yes, on the sunday he bought a new coat, dark green, with yellow buttons. _q._ what sunday was that? _a._ not the th. _q._ the sunday after his return? _a._ yes. _q._ did he buy any other articles of dress? _a._ a new hat. _q._ on what day did he buy that? _a._ the monday. _q._ was that the monday after his return? _a._ the monday after he had bought his new coat. _q._ did he tell you whether it had been a successful expedition to him? _a._ he said he was to have £. for what he had done. _q._ had you at any time any conversation with him about the nature of his journey? _a._ no, never. he wished when he went away that it might be kept a secret where he was gone to; he did not wish any body to know where he was going to; he seemed very much agitated, and i desired he would not tell me that i might not tell any body else, and i did not know then. _mr. philip foxall sworn._ _examined by mr. bolland._ _q._ you keep the rose inn at dartford? _a._ i do. _q._ look at that letter, and tell me whether you received it at any time, and when, from the person whose name it bears? _a._ i did. _q._ i see it purports to be from mr. sandom? _a._ it was from mr. sandom. _q._ did you know mr. sandom before that time? _a._ i did, by his frequently having chaises ordered from my house? _q._ did you execute that order? _a._ yes. _q._ and sent a chaise to bring the party to dartford? _a._ yes; and i had horses ready, as the letter advised me. _q._ had you sent chaises on a similar message before? _a._ yes i had, by messages, and by letter; and he also came down there in the chaise. _lord ellenborough._ by a message in writing coming to you? _a._ yes sometimes; this came by a boy. _q._ you do not know his hand-writing? _a._ no i do not. _the letter was read as follows_: sir, please to send me over immediately a chaise and pair to bring back to dartford, and have four good horses ready to go on to london with all expedition. yours, &c. r. sandom, northfleet. monday morning. _addressed, mr. foxall, rose inn, dartford._ _mr. bolland._ in consequence of that you sent a chaise to northfleet? _a._ i did. _q._ did you see the chaise on its return from northfleet? _a._ yes; the chaise drove furiously into my yard with two gentlemen and mr. sandom, with white cockades in their hats. _q._ what sort of hats were they? _a._ they were very large cocked hats. _q._ were they flat hats; what are called opera hats? _a._ i did not see; indeed they did not take them off. _q._ were they quite plain hats? _a._ yes, with the exception of white paper or ribband, i cannot say which. _q._ how were the gentlemen dressed? _a._ in blue clothes i think; but there were such a number of persons hurrying into the yard, that i had not an opportunity of examining; the four horses were ready; i gave them another chaise, as i feared the wheels of this were not very well greased. _q._ had you any conversation with sandom, or either of the gentlemen with him? _a._ i said to mr. sandom, "will those gentlemen breakfast;" he said, "no, they have breakfasted at my house, they have been in an open boat all night, and are very much fatigued." i then asked him a question, "who are they?" he said he did not know, but they had news of the utmost consequence, and begged i would let them have good horses. _q._ did any thing else pass between you and mr. sandom? _a._ no, further than my asking where to; and they said to westminster. i told the boys i supposed they were going to the admiralty. _cross-examined by mr. serjeant pell._ _q._ what time was it you received the note? _a._ i think the note must have been received about seven o'clock. _q._ in the morning? _a._ yes; the boy was unacquainted with the town, and he went to the house opposite with the note, and a man pointed to me as i was standing at the door. _q._ at what time did the chaise come with mr. sandom and those gentlemen? _a._ i think it could not exceed an hour; i was quite surprised at the chaise coming back in so short a time. _q._ what is mr. sandom, do you know him? _a._ i only know him from his occasionally having horses to take him to northfleet; i understood he lived there. _q._ how long had he lived there? _a._ that i really cannot say; i think he had been in the habits of occasionally having horses from me for nine months before that time. _foxall baldry sworn._ _examined by mr. bolland._ _q._ you are a post-boy at the rose at dartford? _a._ i ride occasionally. _q._ did you ride on the morning of the st? _a._ i did. _q._ do you recollect a chaise coming from northfleet to your house? _a._ yes i do. _q._ who was in that chaise do you recollect? _a._ i have seen one of the gentlemen since; i did not know mr. sandom at the time personally. _q._ was mr. sandom one of those persons? _a._ yes he was. _q._ do you know the other two of those persons? _a._ i do not. _q._ did you drive either of the pair of horses that took those gentlemen to town? _a._ i drove the leaders. _q._ did they give you any orders as to which way they were to go? _a._ just as we were coming to shooter's hill, mr. sandom got out of the chaise with one of those other gentlemen, walked some little distance, and when he came back i was altering my harness; and he beckoned me, and said, my lads we do not want you to distress your horses up this hill, but when you get up you may get on a little: he asked what the gates were, and said, i shall give you twelve shillings a-piece for driving; but as to saying to what part i did not know at the time; my fellow-servant at the wheel ordered me to go over london bridge, down lombard street, along cheapside, over blackfriar's bridge, down the new cut, and when i was in sight of the marsh gate i was ordered to stop. _q._ did you take that course? _a._ i did. _q._ how was mr. sandom drest? _a._ why i really cannot say, but i think he had a brown great coat on. _q._ how were the other two persons dressed? _a._ they were in blue great coats i think. _q._ do you recollect what sort of hats they had? _a._ they had round hats when they left me. _q._ what sort of hats had they when they got into the chaise? _a._ they had military hats on. _q._ was there any ornament in the hats? _a._ a paper or ribband, i cannot tell which. _q._ had the horses any ornaments upon them? _a._ yes, laurels. _q._ do you know by whose orders they were put on? _a._ no, i do not. _q._ you were near the marsh gate you say? _a._ yes, i could see the marsh-gate when i pulled up. _q._ did the parties get out there? _a._ yes. _q._ how were they dressed then? _a._ they had taken off their military hats and put round ones on, and they walked away. _q._ at what hour in the morning was it when you got to the marsh gate? _a._ i should think about eleven o'clock; i cannot say for half an hour. _q._ did mr. sandom give you any thing? _a._ not at that time. _q._ did he pay for the chaise? _a._ he did not, not there. _q._ has he since given you any thing? _a._ he asked us what house we stopped at, i told him the bull at kent street end, and he came to us there, and gave my fellow-servant a one pound note, and the remainder in silver for him and me together. _q._ did he pay for the chaise? _a._ he did not pay for the chaise. _q._ did either of the other two return with him? _a._ they did not. _mr. francis baily called again._ _examined by mr. bolland._ _q._ in consequence of enquiries that had been made, did mr. holloway attend the committee of the stock exchange? _a._ he did. _q._ did mr. lyte attend also? _a._ afterwards he did with mr. holloway; first mr. holloway came, and denied having any knowledge of the transaction. _q._ did you see him again at any other time? _a._ yes, very near the time of the bill being found; i cannot tell whether before or after that, he came with mr. lyte and confessed that he was the person who had planned that plot, or participated in it. _q._ state what he said as nearly as you can recollect? _a._ he said that he had done it with a view to obtain money by a rise in the public funds; and mr. lyte stated, that he was one of the parties who had been employed by mr. m'rae, at mr. holloway's suggestion; at holloway's or m'rae's. _q._ did either of them say who were the actors in the plot? _a._ mr. lyte said that he and sandom and m'rae rode in the post chaise from northfleet to dartford, and afterwards from dartford to london. _lord ellenborough._ in whose presence did lyte state this? _a._ mr. wakefield was present, mr. lavie was present, and a mr. chaumette. _q._ was holloway present then? _a._ yes he was; they both came together. _q._ what lyte stated was in the presence of holloway? _a._ exactly so. holloway stated that he did it with a view of obtaining money, by the rise in the funds. _q._ did he state any thing more? _a._ he stated that he was not aware of the serious turn it would take; that he did not contemplate it in that point of view at first; but finding that it had taken so serious a turn, he had come forward and confessed it, in the hope that the stock exchange would not pursue it to extremities, and carry on the action against him, or the prosecution: he was asked whether he had any connection with lord cochrane, cochrane johnstone, or mr. butt, which he denied. _cross-examined by mr. serjeant pell._ _q._ do you know what it was that immediately led to mr. holloway's making this communication to the stock exchange? _a._ no i do not; nothing more than the publicity of the measures which they were taking to follow up the parties, i believe. _q._ did you not learn at the time from mr. holloway during this conversation, and from mr. lyte, that m'rae had offered to come forward for a very considerable sum of money and state his knowledge of the transaction? _a._ that had been stated before publicly i believe in mr. cochrane johnstone's letter. _q._ i ask as to the conversation at the time, do you recollect whether or not at the time of this interview between holloway, lyte, and the gentlemen of the stock exchange, any thing was said about m'rae's having offered to be a witness for a large sum of money? _a._ there was certainly something said, but whether it was mentioned first by the gentlemen of the stock exchange, or by mr. holloway, i cannot recollect. _q._ did not mr. holloway state, that in order to prevent the gentlemen of the stock exchange paying a large sum of money for the communication that would be paid in fact for nothing, he would come forward and state the part of the transaction in which he was concerned? _a._ i believe he did. _q._ it was understood by the gentlemen of the stock exchange, was it not, that that communication of m'rae's was supposed to extend to my lord cochrane's part in the transaction? _mr. gurney._ what was understood cannot be asked. _mr. serjeant pell._ i ask as to what was said at the time, was it not said that m'rae's communication was to affect lord cochrane's share in the transaction? _a._ i do not recollect that that was stated. _q._ i think you stated that mr. holloway or mr. lyte distinctly asserted, that this business of theirs had nothing to do with that in which lord cochrane was concerned? _a._ he did. _q._ do you know what was the sum that it was stated m'rae was to be a witness for, was not it so large a sum as £ , ? _a._ that sum had been stated in a letter which passed? _q._ was it not stated in the conversation? _a._ i believe it was; but the subject of the communication of m'rae was so little attended to by the committee, that it never entered their heads that any such sum should be paid. _q._ was there any letter, or any writing of mr. holloway's produced at the time? _a._ i really cannot fix my memory. _q._ have you any recollection of any letter of his having been produced at the time? _a._ certainly none that i can recollect. _q._ do you not know that mr. holloway had written a letter to the committee of the stock exchange upon this business? _a._ i really do not know it; it may possibly have been. _cross-examined by mr. park._ _q._ this person holloway was asked whether he had any connection with lord cochrane, mr. cochrane johnstone, and mr. butt, and he denied it? _a._ he did. _q._ did he not, in the same conversation, deny that he had any connection, not only with those persons, but de berenger also? _a._ certainly. _q._ that you dropped? _a._ yes, i did not mean to drop it. _cross-examined by mr. alley._ _q._ at the time this conversation passed between you and holloway, m'rae was not there? _a._ he was not. _q._ it was all in his absence? _a._ it was in his absence, it was in mr. lavie's office. _lord ellenborough._ the evidence of course can operate only against holloway and lyte, who were there. _mr. joseph fearn sworn._ _examined by mr. gurney._ _q._ you are a stock broker? _a._ i am. _q._ how long have you known mr. butt? _a._ several years. _q._ were you introduced by him to mr. cochrane johnstone and to lord cochrane. _a._ yes. _q._ in the month of february last, were you employed either by mr. butt or lord cochrane, or mr. cochrane johnstone, to make any purchases for them in the funds? _a._ yes, i was. _q._ at that time where was your office of business? _a._ no. , cornhill. _q._ was it no. or no. , about the th of february? _a._ i believe it was no. . _q._ had mr. butt an office? _a._ he had somewhere about that time an office in sweetings alley. _q._ from the th of february to the th of february, did you see mr. butt daily? _a._ i think i did. _q._ at your office or at his? _a._ both. _q._ did you generally see him alone, or in company with either of the other persons? _a._ frequently all three together. _q._ you mean mr. cochrane johnstone, lord cochrane, and mr. butt? _a._ yes. _q._ when you did business for lord cochrane, did you in all instances take orders from him or from any person for him? _a._ sometimes from him, and sometimes from mr. butt. _q._ after you had acted for him upon the orders of mr. butt, did he recognize those orders? _a._ always. _q._ from the th till the th, did you make various purchases and sales for them? _a._ i did. _q._ on the evening of the th, what balance had he in his hand; lord cochrane's transactions i believe were only in omnium? _a._ no. _q._ the amount was £ , , was it not? _a._ yes. _q._ that is to say, that he had that balance of omnium? _a._ yes. _q._ what balance of omnium had mr. cochrane johnstone on that day? _a._ £ , . _q._ one hundred and twenty, or one hundred and thirty thousand? _a._ i have not drawn out the balance here. _q._ what was mr. cochrane johnstone's consol account on that day? _a._ £ , . _q._ how much had mr. butt of omnium at the same time? _a._ i think about £ , . _q._ is not the omnium £ , . _a._ i should think more than that; i believe it was £ , . _q._ how much his consols? _a._ £ , . _q._ on the morning of the st of february, did you sell them all? _a._ i did. _q._ omnium and consols and all? _a._ yes. _q._ on the morning of monday the st, did you remove to any other office than that you had before occupied? _a._ yes, i did. _q._ where was that office? _a._ no. , in shorter's court. _q._ is that close to the side door of the stock exchange? _a._ yes, it is. _q._ how many rooms were there? _a._ three. _q._ had you one? _a._ i had one and a small closet; mr. butt had another up stairs with mr. johnstone and my lord cochrane, and the ground floor was occupied by mr. lance. _q._ was he a clerk of yours, or employed by them? _a._ he was employed by them. _q._ had you taken that office, or had it been taken for you? _a._ mr. johnstone had taken his with one room or two rooms, i am not sure which. _q._ had the office been taken for you, or had you yourself gone and taken it? _a._ they had taken those two rooms, i believe, without intending to take any more; but as i was not pleasantly situated, and was rather too far from business, i wished to have an office there, if they could procure it; several of my friends went to look at it, and finding it convenient, i requested them to take the whole of it, if they could, in order that i might be accommodated. _lord ellenborough._ whom do you mean by friends, mr. cochrane johnstone? _a._ no, other persons for whom i did business. _mr. gurney._ when was this done? _a._ in the course of the week preceding. _lord ellenborough._ when you say mr. cochrane johnstone took a room for you, do you mean at this place? _q._ they had taken those two rooms, i believe, for themselves, without reference to my having any thing to do there. _mr. gurney._ did they afterwards take a third? _a._ they afterwards took the whole that is in my possession. _q._ you have all of them in your possession now? _a._ i have. _q._ on the morning of monday the st of february, how soon did you see either of those gentlemen? _a._ they were in the habit of being at the office as early as i myself attended. _q._ at your office in cornhill? _a._ yes. _q._ how early did you see them at your office that morning? _a._ i believe at about ten, or a little past. _q._ whom did you then see. _a._ i think, mr. butt and mr. johnstone. _q._ are you positive upon that subject? _a._ i am sure they were both there in the course of the morning. _q._ are you positive whether any body else was with them? _a._ no, i think nobody else. _q._ business begins in the stock exchange i believe at ten o'clock. _a._ yes. _q._ at what price had consols for time left off on saturday? _a._ i can hardly say. _q._ did they open on monday morning pretty much as they had left off on saturday evening? _a._ i think they did. _q._ how soon after you had been in the stock exchange, did any good news come? _a._ i think it was near eleven. _q._ what news had arrived? _a._ i cannot take upon me to say; i only knew in general, with perhaps every body in the house in business, that there was some news, but we rarely enquire into particulars of news, it is enough that facts are produced. _q._ you were doing a good deal of business at that moment, and must have heard something of it; did you hear any thing about a messenger arriving at dover? _a._ i have heard so much since that, i cannot take upon myself to swear what i heard, whether that a messenger had arrived at dover, or that bonaparte was killed, but one of the two certainly. _q._ did you hear that bonaparte was killed? _a._ yes. _a juryman._ were those gentlemen with you at the time the news arrived? _a._ they were--not my lord cochrane. _mr. gurney._ had the good news an immediate effect upon the funds? _a._ yes, it had. _q._ after the funds had begun to rise, did you sell? _a._ i began to sell before the rise took place. _q._ what was the first price you sold at? _a._ omnium at twenty-nine and a quarter. _q._ that was the first price you sold at? _a._ yes. _q._ do you mean to say that omnium opened that morning at twenty-nine and a quarter? _a._ i rather think it did. _q._ however, the first price you sold at was twenty-nine and a quarter? _a._ yes. _q._ what was your next price? _a._ £ - / , - / , and - / . _q._ at what did you sell the consols? _a._ beginning at - / ths, - / , - / ths, , and - / . _q._ in what manner did you receive instructions for these various sales; they were sold in different parcels? _a._ yes, i came frequently to my office from the stock exchange to mr. butt and mr. cochrane johnstone. _q._ and you reported to them and received orders? _a._ yes. _q._ did you receive notes likewise? _a._ i was in the constant habit of doing so. _q._ did you do so that morning? _a._ i am not quite certain; but i am in the constant habit of receiving notes from them. _q._ do you remember hearing in the course of the morning, of a post chaise coming through the city? _a._ i did. _q._ did that occasion a still further rise in the funds? _a._ i do not know. _q._ before business left off, the funds fell again? _a._ they did. _lord ellenborough._ about what o'clock did the funds fall? _a._ i believe about two. _mr. gurney._ it was discovered at that time that the good news was not true? _a._ it certainly was not believed. _q._ have you an account of the different purchases from the th to the st, taken from your books? _a._ i have. _the witness delivered in the accounts._ _mr. serjeant best._ from what are those taken? _a._ from my books. _mr. gurney._ have you carried those accounts down to the th of march? _a._ i have. _q._ has mr. baily, also had access to your books, to take the different balances? _a._ he has. _mr. gurney._ the reading of this would not be very intelligible, a sight of it perhaps would be the best thing. _lord ellenborough._ we must have the sum total or the results. _mr. gurney._ i will give your lordship the result after the examination of several stock brokers; mr. baily has abstracted the whole. _mr. serjeant best._ i shall carry back the accounts considerably earlier; that should be understood. if i put in accounts of an earlier date, it must not be considered that i am giving evidence in so doing. _mr. gurney._ i take it the same, as if my learned friend cross examined mr. fearn upon that subject. _cross-examined by mr. serjeant best_. _q._ you have spoken of these gentlemen engaging in stock transactions, you have been carried back no further than february the th, they had all three of them bought to an enormous amount long before that time--had they not? _a._ certainly. _q._ and as to sales, had they not sold very large sums, long antecedent to the month of february? _a._ oh yes. _q._ can you state as to my lord cochrane, for instance, had he not sold hundreds of thousands before that time? _a._ yes. _q._ i would ask you, did he not from time to time, down to that time, continue to be selling large sums? _a._ yes. _q._ with respect to mr. cochrane johnstone--on the th or th of february, had he not a balance of £ , . _mr. gurney._ to save my learned friend time, my account shews every day's purchases, and every day's sales from that time. _mr. serjeant best._ be so good as to look at that printed paper, and tell me whether that is not a correct statement of mr. cochrane johnstone's account with you. _a._ i cannot tell from this book. _mr. gurney._ i believe the accounts will agree to a farthing, from the time they each begin. _mr. serjeant best._ then the larger sales will appear upon this paper without troubling his lordship to take them down upon his notes; there were very large sales for all of them several days precedent to the st. _a._ yes, there were. _q._ i believe they began these speculations as early as the month of november, did they not? _a._ yes. _q._ mr. butt managed principally--very much for these gentlemen--for lord cochrane particularly? _a._ yes, he did. _q._ lord cochrane, you have told us, was not there on the morning of the st? _a._ no, he was not. _q._ for a great many days, i believe i may say months, had you not been directed to sell their stock whenever it should so rise, that you could get one per cent? _a._ yes. _q._ you have told us that on the morning of the st, you began to sell before the news came? _a._ yes. _a juryman._ he said before the rise took place. _mr. serjeant best._ you found when you came there in the morning, that the stocks had got to such a pitch as that you could sell consistently with the orders they had given you? _a._ it was so. _lord ellenborough._ at what hour was that? _a._ ten o'clock. _mr. serjeant best._ did you not sell out very large sums before either of them came near the place that morning? _a._ i think i had began to sell before they came, but i cannot say positively. _q._ had you not sold to a considerable amount, if you can tax your memory with it, or refresh your memory by looking at any book? _a._ i think i had. _q._ can you tell us to what amount you had sold before any of them came?--i do not ask to a few shillings, we deal in thousands here. _a._ i cannot positively say--i had done much before i saw either of them, for i was in the habit of doing twenty or thirty and reporting to them. _q._ do you mean thousands? _a._ yes. _q._ you think you had sold considerably before you saw them? _a._ i think i had. _lord ellenborough._ cannot you fix the time of your sale? _mr. gurney._ i shall prove the prices every half hour. _mr. serjeant best._ i am not at all conversant in those things, never having speculated in stock at all, but i am told it is the practice sometimes to sell stock which the persons have not to transfer? _a._ i have heard of such things. _q._ consequently, if i had been at the stock exchange that morning, and had found the omnium up at , which i believe it was that morning---- _mr. bolland._ no, thirty two. _mr. serjeant best._ if i had been at the stock exchange that morning, and had found the omnium up at , and had known that the good news must soon turn out to be all invention, i might have sold if i had liked, a million of stock, according to the practice of the stock exchange, though i did not happen to have a sixpence. _a._ it certainly might have been done. _q._ is it not the practice for a man who wishes to gamble in the funds, to sell stock which he has not, when he thinks they will fall? _a._ i know it is done. _q._ a man who thinks the stocks may fall, may sell stock he has not, to any person who thinks they may rise? _a._ it certainly is done. _q._ did either my lord cochrane, mr. cochrane johnstone or mr. butt, make any such sales on that day to your knowledge, you having stated you were their broker--do you know of their having sold on that day any stock which they had not purchased before? _lord ellenborough._ are you not putting this gentleman in a situation of peril? _mr. serjeant best._ if he admits it. _lord ellenborough._ why should you place him in such a situation to deny or affirm? this does not affect the charge. _mr. serjeant best._ i ask whether it was done by those persons? _lord ellenborough._ but that would be done through a broker. _mr. taddy._ if your lordship will allow me to suggest on behalf of the witness, that in an action for the penalties, the question would be whether he knew they were possessed of the stock, or not, and this would go to make out his knowledge. _mr. serjeant best._ do you know whether either of those persons on that day sold any stock or omnium, which they had not purchased before? _lord ellenborough._ that question must be limited to any thing in which you have not had participation in the way of sale, otherwise you may criminate yourself--having given you that caution, you may do as you please. _a._ they did not. _lord ellenborough._ that is not imputed to them. _mr. serjeant best._ the use i mean to make of it i have no objection to state now. _lord ellenborough._ no, you need not, i leave it entirely to your judgment. _mr. serjeant best._ i think you told us before, those gentlemen told you, whenever the stock rose to one per cent, above what they had bought at, to sell. _a._ yes, they did. _q._ with respect to the taking of this office, when did you first see it? _a._ in the course of the week anterior to the st of february. _q._ mr. butt had before an office in sweeting's alley. _a._ yes. _q._ he found that an inconvenient one and he took these rooms in shorter's court, he and mr. johnstone? _a._ yes. _q._ those were taken for mr. butt, were they not? _a._ i believe so. _q._ i believe you went to the rooms as to the rooms of mr. butt? _a._ i did. _q._ i believe you thought upon seeing mr. butt's room, that the situation was a very convenient one for yourself? _a._ yes. _q._ and therefore you suggested, did you not, that you should like a room in the same house? _a._ i think i did. _q._ in consequence of this suggestion did not mr. butt give up to you the room he had taken for himself, and take another in the same house for himself? _a._ yes, he did. _q._ and the room being taken in this manner, you put up your name "fearn, stock broker." _a._ on the monday. _q._ did you do that at your own idea or was it suggested to you by any body? _a._ it was the same transparent blind i had at my former office, which i removed and put in the window. _q._ your name in gold letters? _a._ in black letters. _q._ you took your furniture? _a._ the rooms were furnished. _q._ i believe after thus finding your customers liked the situation, you desired mr. johnstone to purchase the lease of the house for you. _a._ yes, i did. _q._ was that before or after the st? _a._ i think after. _lord ellenborough._ then that does not apply. _mr. serjeant best._ you had taken it before the st and got into possession on the st. _a._ yes. _q._ one of your reasons for taking it was that some of your customers were particularly pleased with it. _a._ yes. _q._ that was on the thursday in the week before. _a._ i believe it might be. _q._ you have told us you did not see lord cochrane on that morning, how many days previously to that had you seen him? _a._ i think i saw him on the saturday. _q._ you are not quite certain of that? _a._ no, i am not. _q._ does it appear whether he bought any thing on that day. _mr. gurney._ it appears from the account that he bought , and sold , . _mr. serjeant best._ you have told us that all those three persons, mr. cochrane johnstone, lord cochrane, and mr. butt, were very large speculators; did they always speculate the same way, or on the contrary, when one bought did not the other very often sell? _a._ it has been the case. _q._ has not that happened often, several times? _a._ yes it has, several times. _re-examined by mr. gurney._ _q._ on that day they all sold? _a._ yes they did. _q._ they all acted together on that day. _a._ yes they did. _q._ where did lord cochrane reside on the st of february? _a._ i do not know. _q._ how soon after did you know his residence in green-street? _a._ not at all until the printed paper of the stock exchange came out. _q._ did you know that lord cochrane resided at the time in green-street? _a._ only by report. _q._ not from lord cochrane? _a._ no. _a juryman._ you say they did not sell any stock but what they had before purchased, do you mean such as they had bought and paid for, or only such as they had contracted for the purchase of, was it actually bought and transferred to them? _mr. taddy._ that is the very thing i have taken the liberty of suggesting to your lordship. _lord ellenborough._ he has before said they had not sold any of which they had not become the proprietors before, so that he is predicating of them that they had purchased this, for they could not otherwise become proprietors. _a juryman._ is it not a purchase for time altogether, are they not all time bargains both the omnium and the stock? _a._ this is one of those questions i cannot answer. _lord ellenborough._ gentlemen, he objects to answering the questions as it may criminate him, but the offence charged may have an effect upon the funds, in which not only these individuals are concerned, but every person who has transactions in stock, the persons belonging to the court of chancery, who have to purchase or sell, may be influenced by an improper elevation or depression of the funds, that does not affect the question as to the crime charged upon this record, you will consider mr. gurney whether you will persist in the questions, because this man demurs to the answering the questions, being a party in the transaction. _mr. gurney._ you do decline answering that question? _a._ yes i do. _mr. robert hichens sworn._ _examined by mr. gurney._ _q._ i believe you are a stock-broker? _a._ yes i am. _q._ have you for some years past known mr. cochrane johnstone? _a._ yes. _q._ i believe you have not done business for him till the present year? _a._ no. _q._ from the th of february to the th did you make various purchases for him. _a._ yes i did. _q._ at the leaving off of the business on saturday what was the balance. _a._ £ , . _q._ that was all omnium. _a._ yes it was. _q._ have you taken from your books a statement of the business you did? _a._ i have memorandums that will enable me to answer any questions. _q._ has mr. baily from your books taken an account of purchases and sales? _a._ i furnished mr. baily with a copy of it. _mr. gurney._ then through mr. baily i will give all the particulars of it. _lord ellenborough._ whether purchased with money or no they take upon themselves the disposition of that fund, shewing that they had an interest in the rise and fall of the funds, and that they sold on the monday and gained a profit. _mr. gurney._ yes my lord. on monday morning the st how soon did you see mr. cochrane johnstone? _a._ i think between ten and eleven i cannot say exactly. _q._ where did you see him? _a._ i think i met him as i was coming out of the stock exchange. _q._ how near ten or eleven? _a._ i think it must have been about a quarter before eleven but i cannot say positively. _q._ did you receive any directions from him as to what you were to do with respect to the omnium? _a._ i received an order from him on the saturday, to sell £ , at one per cent. profit, and that i had sold before i saw him. _q._ at what had you sold it? _a._ at . _q._ did he give you any further instructions what to do with the remainder? _a._ he then ordered me to sell a certain quantity at an eighth per cent more. _q._ in short did you sell the whole of it that day by his directions? _a._ i did. _q._ at what prices? _a._ at , - / , - / , - / , and - / . _lord ellenborough._ at those different prices did you dispose of the whole which mr. cochrane johnstone held on that st. _a._ yes. _q._ at one or other of those prices. _a._ yes. _cross-examined by mr. topping._ _q._ can you tell me what was mr. cochrane johnstone's balance on the th? _a._ i think £ , . _q._ on the th how much was that reduced? _a._ on the th i sold £ , . _q._ reducing the balance of course to £ , .? _a._ yes. _q._ upon the th what did you sell? _a._ on the th i bought £ , . and sold £ , . reducing the balance to £ , .; on that saturday i bought £ , . _q._ and you had his directions upon that saturday to sell at one per cent.? _a._ to sell £ , . at one per cent. profit. _q._ and you had done that before you saw mr. cochrane johnstone at all? _a._ yes, i had. _mr. william smallbone, sworn._ _examined by mr. gurney._ _q._ you are a stock-broker, i believe? _a._ yes. _q._ did you shortly before the st of february make any purchases for mr. cochrane johnstone? _a._ yes. _q._ you had made two purchases only, i believe, the th and the th? _a._ yes, only two purchases of £ , . each. _q._ when did you sell them out? _a._ on the st of february. _q._ at what did you sell them out. _a._ - / , - / , and - / . _q._ by whose order did you sell them out? _a._ i sold mr. johnstone's by his order; i sold mr. butt's by his order. _q._ was that order from mr. cochrane johnstone received on the monday, or before the monday? _a._ in part it was received on the monday, but a part on the saturday. _q._ you had also, i believe, made purchases in omnium for mr. butt? _a._ i had. _q._ to the amount of £ , i believe? _a._ yes. _q._ was that £ , left as a balance on saturday the th? _a._ yes. _q._ and all sold out on the monday? _a._ yes, all sold on the st. _q._ have you given mr. baily a statement from your books of that? _a._ yes. _q._ and of the prices at which it was sold? _a._ yes. _lord ellenborough._ now what is the result of all these accounts? _mr. gurney._ i am going to call one person more, and then i will give your lordship the totals. _q._ you had bought for mr. cochrane johnstone, £ , , and on that st you sold it all? _a._ yes. _q._ you had bought for mr. butt £ , , and on the monday you sold it all? _a._ i sold it all on monday. _lord ellenborough._ if he sells all the sum is immaterial, if you prove that he sold all of the several amounts, it furnishes a constructive motive for what has passed. _cross-examined by mr. scarlett._ _q._ when was it you had purchased the £ , for mr. cochrane johnstone? _a._ on the th and the th. _q._ did mr. johnstone send you the order to purchase it? _a._ yes. _q._ was it upon his own account? _a._ no, it was upon his own account, the order was from him. _q._ but not upon his own account? _a._ no, it was not. _q._ was the whole £ , purchased at two different times? _a._ yes, it was. _q._ you stated to my learned friend, that he gave you an order to sell a part of it on saturday? _a._ yes, he gave me an order on saturday. _q._ what was it? _a._ to sell at a quarter profit if i had an opportunity. _q._ i take for granted that opportunity did not occur on the saturday? _a._ no, it did not. _q._ otherwise you would have sold it on the saturday? _a._ certainly. _q._ on the monday you say he gave you an order as to the other £ , ? _a._ yes. _q._ had you sold the first £ , before you saw him on the monday? _a._ yes, i had. _q._ at what time in the morning had you sold it? _a._ i think about half past ten. _q._ when did you first see mr. johnstone? _a._ i saw him soon after i had sold out, between ten and eleven. _q._ his order had been confined to £ , on the saturday? _a._ not exactly to £ , ; if i saw an opportunity of selling any at a quarter profit i was to sell. _q._ when you saw him on the monday, did he then order you to sell the remainder? _a._ yes. _q._ did you sell it immediately. _a._ as soon as an opportunity offered to sell it at a profit. _q._ was that early in the day? _a._ yes, about eleven i believe. _q._ when was it that you first heard any rumour of good news in the morning? _a._ soon after the market opened, between ten and eleven. _q._ you say you had purchased £ , for mr. butt? _a._ yes. _q._ when was that? _a._ the th, th, and th of february. _q._ different sums on those days? _a._ yes. _q._ had you any order from mr. butt as to the sales? _a._ to sell whenever i saw an opportunity of selling at a quarter profit, or three eighths as the circumstances might allow. _q._ how long have you known mr. butt? _a._ about six months. _q._ had you had any transactions with him before in that way? _a._ yes. _q._ he had occasionally employed you? _a._ yes, he had. _q._ who introduced you to mr. johnstone? _a._ mr. johnstone was in mr. butt's office when i first saw him there in sweeting's alley. _q._ it was through mr. butt you became acquainted with mr. johnstone? _a._ yes, it was. _q._ if any person had known that this news was false, and had been disposed to be a bear, he might have made his fortune by selling that day, might not he? _a._ certainly. _q._ by selling for account? _a._ certainly. _q._ you had no directions from either of those gentlemen to sell more than they had bought that day? _a._ no i had not. _cross-examined by mr. richardson._ _q._ you stated to my learned friend that you had bought large quantities of omnium on account of this gentleman, had any of it been paid for. _a._ shall i answer that question my lord? _lord ellenborough._ if the witness looks at me i must tell him he need not answer any question that implicates him in a crime. _mr. richardson._ you decline answering that question? _a._ yes, i do. _q._ you will decline answering any other questions that you think implicate yourself.--were any of those purchases real purchases for stock transferred, or on account? _a._ it was for omnium--that cannot be transferred. _q._ you spoke of consols? _a._ no this was omnium. _q._ was it all bought or paid for, or on account? _a._ i decline answering that question. _q._ with respect to the consols had any of them been paid for or transferred? _a._ i had no consol account. _mr. richardson._ i will state to your lordship the object i have in that; i submit it is incumbent upon the prosecutors to prove in support of the allegations of their indictment, which charge a conspiracy for the purpose of enabling mr. cochrane johnstone and the other gentlemen, to sell divers large sums of government securities, and so on, that they had an interest in those government securities. _lord ellenborough._ that applies only to the two first counts. _mr. gurney._ if i leave my case imperfect, my learned friends will take advantage of it. _lord ellenborough._ it does not apply to the third count, certainly there is a particularity which is quite unnecessary in the others; it states that by certain devices and contrivances they endeavoured to raise the price of the funds, to the prejudice of his majesty's subjects, to an undue elevation, and so on, there is enough to let in the general evidence. _mr. gurney._ and there is enough in the first count, independently of the sales. _mr. richardson._ the first count states this to be to enable these gentlemen to sell omnium, and three per cent. consols, at larger prices than they would otherwise have sold for; i submit to your lordship, that in support of that it is for the prosecutors to shew that they had such to sell? _lord ellenborough._ that will be an observation at the close if they leave their proof imperfect; perhaps i accede to you, but that would only apply to one count, they have six more counts, i do not say that they are all safe counts, but you will see what they propose taking their verdict upon. _mr. malcolm richardson sworn._ _examined by mr. gurney._ _q._ i believe you are a bookseller and also act as a stock broker. _a._ i am. _q._ you are not a member of the stock exchange. _a._ no, i am not. _q._ in the afternoon of saturday the th of february, did mr. butt, make any application to you on the subject of stock. _a._ on the morning of that day. _q._ what did he apply to you to do? _a._ he applied to me to purchase a quantity of omnium. _q._ how much did he mention? _a._ he mentioned on the first instance as much as £ , . _q._ what answer did you give to that? _a._ i hesitated to execute such a commission as that to that extent. _q._ how much did you purchase for him? _a._ £ , . _q._ on that saturday? _a._ yes, in the morning i speak of. _q._ what did you do with that £ , ? _a._ i received instructions to sell it again, if i could get a quarter per cent profit. _q._ did you get a profit and sell it again? _a._ in a short time i did get three-eighths per cent profit, and consequently sold it again without waiting for instructions. _q._ did you then by his instructions make any further purchase for him? _a._ i did in the latter part of that day purchase first £ , and then £ , . _q._ on the morning of monday the st did you sell out that £ , ? _a._ i did. _q._ in pursuance of instructions received on the saturday or on the monday? _a._ on the saturday, at the time i saw him. _q._ at what profit did you sell? _a._ at three-fourths per cent profit. _q._ what was the price? _a._ - / . _q._ have you given the account of this to mr. baily? _a._ yes i have. _cross-examined by mr. brougham._ _q._ you were partner with mr. fearn, senior, mr. butts, broker, were not you? _a._ yes, formerly i was. _q._ did you not apply to mr. butt, stating that you had a wife and family, and wishing him to give you some employment. _a._ mr. butt had been known to me ten or twelve years, and known to mr. fearn, senior, only as being one of my customers in the book line. _q._ did you not apply to mr. butt yourself to ask him to serve you. _a._ not upon this occasion at all. _q._ will you hear the question first, and then answer it. did you never before this apply to mr. butt to give you some of his business? _a._ yes i did. _q._ and he did give you some of his business upon this day? _a._ he did. _cross-examined by mr. richardson._ _q._ was any of the omnium bought for mr. butt, paid for? _a._ i would rather decline answering that. _mr. francis baily called again._ _examined by mr. gurney._ _q._ these gentlemen have informed us that they have furnished you with the exact statements of all the purchases and sales; have you drawn out from their statements the purchases and sales, and the daily balances of each? _a._ i have. it may be necessary to state, mr. richardson has not furnished me with a written account, but i have taken it down now from his own mouth. _q._ have you from that made out a general statement of the several accounts containing the daily purchases, the daily sales, and the daily balances? _a._ i have. _q._ for mr. cochrane johnstone, lord cochrane, and mr. butt? _a._ yes. _the account was delivered in and read, as follows;--_ ====================================================================== | || | general statement of a. cochrane johnstone's omnium account, || | from th to st feb. || | || |-------------------------------------------------------------------|| | | through fearn || through hichens || |-------------------------------------------------------------------|| | | daily | daily | daily || daily | daily | daily || | |purchases| sales |balances||purchases| sales |balances|| |----------|---------|--------|--------||---------|--------|------- || | , feb.| | | || | | || | | , | | , || | | || | | , | , | , || , | | , || | | , | , | , || , | | , || | | , | , | , || , | | , || | | | | , || | | , || | | , | , | , || , | | , || | | , | | , || | | , || | | , | , | , || | , | , || | | , | , | , || , | , | , || | | , | | , || , | | , || | | | , | , || | | , || | | | , | , || | , | || ====================================================================== ====================================================================== | || | general statement of a. cochrane johnstone's omnium account, || | from th to st feb. || | || |-------------------------------------------------------------------|| | | through smallbone. || totals. || |-------------------------------------------------------------------|| | | daily | daily | daily || daily | daily | daily || | |purchases| sales |balances||purchases| sales |balances|| |----------|---------|--------|--------||---------|--------|--------|| | , feb.| | | || | | || | | | | || , | | , || | | | | || , | , | , || | | | | || , | , | , || | | | | || , | , | , || | | , | | , || , | | , || | | , | | , || , | , | , || | | | | , || , | | , || | | | | , || , | , | , || | | | | , || , | , | , || | | | | , || , | | , || | | | | , || | , | , || | | | , | || | , | , || ====================================================================== ========================================================================= | | || | | | a. cochrane johnstone's || lord cochrane's | | | consol account || omnium account, | | |from th to st feb. ||from th to st feb. | |-----------------------------------------------------------------------| | | through fearn || through fearn | |----------|------------------------------------------------------------| | | daily | daily | daily || daily | daily | daily | | |purchases| sales | balances ||purchases| sales | balances | |----------|---------|--------|----------||---------|--------|----------| | , feb.| | | || | | | | | | | || | | | | | | | || | | | | | | | || | | | | | | | || | | | | | , | | , || | | | | | | | , || , | | , | | | | | , || | | , | | | | | , || , | | , | | | | | , || | , | , | | | | | , || , | | , | | | | | , || , | , | , | | | | | || | , | | ========================================================================= ==================================================================== | || | general statement of r. g. butt's omnium account, || | from th to st feb. . || | || |-----------------------------------------------------------------|| | | through fearn || through richardson || |--------|---------|---------|--------||---------|-------|--------|| | | daily | daily | daily || daily | daily| daily || | |purchases| sales |balances||purchases| sales|balances|| |--------|---------|---------|--------||---------|-------|--------|| |feb. | , | | , || | | || | | , | , | , || | | || | | , | , | , || | | || | | , | , | , || | | || | | | | , || | | || | | , | , | , || | | || | | , | | , || | | || | | , | , | , || | | || | | , | , | , || | | || | | , | | , || | | || | | | , | , || , | , | , || | | | , | , || | , | || | | | |sold too|| | | || | | | | much. || | | || ==================================================================== =================================================================== | || | general statement of r. g. butt's omnium account, || | from th to st feb. . || | || |----------------------------------------------------------------|| | | through smallbone || totals || |--------|---------|----------------||---------------------------|| | | daily | daily| daily || daily | daily | daily || | |purchases| sales|balances||purchases| sales |balances|| |--------|---------|-------|--------||---------|--------|--------|| |feb. | | | || , | | , || | | | | || , | , | , || | | | | || , | , | , || | | | | || , | , | , || | | , | | , || , | | , || | | , | | , || , | , | , || | | | | , || , | | , || | | | | , || , | , | , || | | | | , || , | , | , || | | , | | , || , | | , || | | | | , || , | , | , || | | | , | || | | , || | | | | || | |sold too|| | | | | || | | much. || =================================================================== ======================================== | | r. g. butt's | | | consol account, | | |from th to st feb. | |--------|-----------------------------| | | through fearn | |--------|-----------------------------| | | daily | daily| daily | | |purchases| sales| balances | |--------|---------|-------|-----------| |feb. | | | | | | | | | | | | | | | | , | , | , | | | , | | , | | | | | , | | | , | | , | | | , | | , | | | | | , | | | | | , | | | | , | , | | | | , | , | | | | | | | | | | | ======================================== _q._ what appears at last to be the gross balance held by each of them on the th february; what is mr. cochrane johnstone's balance of omnium from all those different accounts, on the th february? _a._ £ , . _q._ now state mr. cochrane johnstone's consol account. _a._ £ , . _q._ what was the balance of lord cochrane's omnium account? _a._ £ , . _q._ now state mr. butt's. _a._ £ , . _q._ and it appears, i see, that there were £ , sold too much on the monday. _a._ exactly so; there was that quantity sold more than he had purchased. _q._ what was mr. butt's consol account? _a._ £ , , and he sold only £ , . _lord ellenborough._ then there was £ , too much of his omnium, and £ , too little of his consols sold? _mr. gurney._ exactly so. now what was the gross amount of their account of balances on that day? _a._ £ , omnium, and £ , consols. _q._ as we are not so well acquainted with omnium as you are, if that were reduced to consols what would they have amounted to? _a._ it may be necessary to state, that every thousand pounds omnium consists of £ reduced and £ consols, therefore the whole amount of that would be £ , , three per cents. _q._ now upon that amount, what would the fraction of a single eighth per cent. be? _a._ £ : : . _lord ellenborough._ the whole of this fund was cleared on the st, except £ , consols, and it was oversold by £ , omnium? _a._ exactly so. _mr. gurney._ have you calculated from the accounts, the profits made by those sales of the st? _a._ i have. _q._ to what does it amount? _a._ exactly £ , . _q._ that is the total of the three. can you give me the proportion of each? _a._ for lord cochrane £ , mr. cochrane johnstone £ : , mr. butt £ : . _q._ from the state of the market on the morning of the st if no news had arrived such as raised the funds on that day, could any persons have sold this large quantity of omnium and consols without very much depressing the market? _a._ i should think not certainly. _q._ do you remember at what price omnium left off on saturday the th? _a._ i have referred back to the books; i cannot state from my own memory. _q._ have you the books here? _a._ no; they are the books of the stock exchange. _q._ mr. wetenall's accounts? _a._ yes. _q._ how soon after the business at the stock exchange began on the morning of the st did the news arrive there? _a._ i should think in about half an hour after, but i really am not quite certain to that point. _lord ellenborough._ the business begins at ten, i believe? _a._ yes. _mr. gurney._ as soon as the news came, had it a sensible effect on the funds? _a._ yes; a gradual effect, according as the report was believed. _q._ do you remember after some time whether there was any check or decline? _a._ yes; there was about the middle of the day. _q._ i mean the first decline. _a._ yes; afterwards they recovered. _q._ to what was that recovery owing? _a._ it was generally attributed to the news that came through the city. _q._ you mean the chaise coming through the city? _a._ yes; it was generally believed it was a confirmation of the former report. _q._ did that second rise which took place upon the chaise going through the city, extend still higher than it had been on the report of the arrival of the messenger? _a._ i think it did. _cross-examined by mr. park._ _q._ you are not under the same restraint as the other persons are, can you tell us whether these were real transactions, or only fictitious ones which daily take place at the stock exchange? _a._ the accounts which were given in, i think were given in for time, but i have only taken out the figures. _lord ellenborough._ i should imagine the witness would say that from the magnitude of the accounts he would think they were for time? _a._ certainly. _mr. park._ i want to know, for i have never had omnium in my life, whether you are not competent to say from your knowledge of these accounts, that these are all what they call time bargains? _a._ there is nothing stated upon the face of these accounts as to what days the purchases are made for; possibly they may be for time. _q._ i ask you whether from your knowledge of these accounts and the investigations you have made, they are not time bargains? _lord ellenborough._ he has no personal knowledge of them, he can know nothing but from the magnitude of the sum, he may suppose they must have been time bargains. _a._ certainly; there is nothing upon the face of the accounts to lead to any such conclusion. _mr. james wetenall, sworn._ _examined by mr. gurney._ _q._ i believe you are employed by the house to take the prices of the day at the stock exchange? _a._ i am. _q._ at what price did omnium leave off on saturday the th of february? (_the witness referred to a paper._) _mr. serjeant best._ where do you get those accounts from? _a._ i collect them from the stock exchange. _mr. gurney._ do you go about all day long taking the prices? _a._ i collect them at different times in the course of the day. _q._ you go about taking an account from all the persons who are there? _a._ i take them from different persons who are in the market. _mr. serjeant best._ this is a printed paper? _a._ yes. _mr. gurney._ it is printed under your directions, i believe? _a._ yes. _q._ is your original paper destroyed? _a._ it is. _q._ is this paper a copy from that of yours? _a._ yes. _mr. serjeant best._ did you ever compare this with the paper on which you took down the prices? _a._ yes. _q._ where do you get the contents of your written paper? _a._ from the gentlemen in the stock exchange. _mr. serjeant best._ i submit that this paper cannot be evidence. the witness states that he collects from the gentlemen in the stock exchange, the prices at which they buy and sell, from time to time, in the course of the day; he says he compares this printed paper with the original written paper; i am not objecting to that, but i submit, the written paper itself could not be evidence. _lord ellenborough._ it is all hearsay, but it is the only evidence we can have; it is the only evidence we have of the price of sales of any description. i do not receive it as the precise thing, but as what is in the ordinary transactions of mankind received as proper information, and i suppose there is hardly a gentleman living who would not act on this paper. _mr. gurney._ at what price did omnium leave off on saturday the th of february? _a._ - / . _lord ellenborough._ do you furnish the bank with these papers? _a._ yes. _mr. gurney._ was that - / the money price or the time price? _a._ the money price. _q._ the time price, i believe, is about one per cent. higher? _a._ in general. _q._ at what price did omnium commence on the monday following? _a._ - / . _q._ that is the money price? _a._ the money price. _q._ therefore the time price was - / ? _a._ i did not take the time price. _q._ after this news arrived what did it get up to? _a._ as high as - / . _q._ at what time was that? _a._ that is impossible for me to say. _q._ how soon did it get up to - / ? _a._ i cannot say; it did rise to that by degrees. _q._ did it stand at that, or rise or fall? _a._ it fell by degrees to , and from that to . _lord ellenborough._ so that the rumour had a continuing effect to the close of the day? _a._ yes. _mr. gurney._ did it fall back so low by one and a half as it began in the morning? _a._ no. _cross-examined by mr. serjeant pell._ _q._ do you remember at what time in the course of the day the report came to the stock exchange, of a chaise coming through the city? _a._ i cannot say at what time it was. _q._ then perhaps you cannot tell whether or not the stocks rose again upon any report of that kind arriving there? _a._ according to my recollection the stocks rose a second time; they rose at first, then they fell, and then they rose again. _q._ but you cannot tell at what time that was, or to what cause it was attributable? _a._ it was attributable to a chaise arriving. _q._ you remember that? _a._ yes. _q._ see whether you cannot remember how long it was after the opening of the business of the day that they so rose; might it be three hours afterwards? _a._ it was in less than three hours, i think. _q._ it was less than three hours that they rose the second time you mean? _a._ yes; the second time. _q._ have you a distinct recollection of this. though you cannot remember the precise point of time at which it took place, have you distinct recollection that they rose at first, then fell, and then rose again. _a._ yes; i have a perfect recollection of that, but i cannot tell the time. _cross-examined by mr. park._ _q._ how often in the course of the day do you take that account? _a._ not at any particular stated times. _q._ you have nothing to do with buying or selling stock, i presume. _a._ not on my own account. _q._ but you are a stock broker? _a._ i am. _q._ then when you are not otherwise employed you fill up that paper from time to time? _a._ no; if i perceive there are any particular fluctuations, i then make it my business to collect the prices. _q._ do you mean to represent that the stocks had not risen from what they ended at on saturday before any news came to the stock exchange; had not they risen considerably that morning? _a._ i think not, because if i recollect, there were reports in the morning that news had arrived. _q._ we have heard from some gentlemen that they sold stock as soon as the stock exchange opened; now i ask whether stock had not been sold at a rise before the news arrived? _a._ yes. _mr. gurney._ but you say before the market opened there were some reports of a messenger having arrived? _a._ yes. _mr. charles addis, sworn._ _examined by mr. gurney._ _q._ have you a house in shorter's-court? _a._ no, i have not; i am concerned for a gentleman who has some property there. _q._ you have the letting of a house for a gentleman there? _a._ i have. _q._ was any application made to you in the week prior to the st of february for any part of that house? _a._ yes, on the th or th, i think mr. cochrane johnstone applied to me for an office in a house, the letting of which was under my management. _q._ what number in shorter's-court did he finally fix upon? _a._ it is number , the house almost immediately adjoining the stock exchange. _q._ did he on that day take any part of the house of you? _a._ he took one room for an office in that house on that day. _q._ the house in which mr. fearn is now? _a._ yes. _q._ how soon did he take any more? _a._ he called on the following day and engaged another office. _q._ that was the th then? _a._ i believe it was the th, i will not be positive, and he called on the following day the th, being the third time. _q._ did he, when he called on the th, write that letter in your office (_handing it to the witness_.) _a._ this is a letter he left in my absence in the office, on which day i cannot say, but this was a letter that he left for me. _q._ that was on the third day after he had engaged the three offices? _a._ yes. _q._ he had then engaged all three? _a._ yes. _q._ are they three rooms in the same house? _a._ three rooms in the same house. _q._ (_to mr. fearn_) is that letter mr. cochrane johnstone's hand writing? (_handing it to the witness._) _a._ i believe it is. _it was delivered in, and read as follows:--_ "sir,--i called again upon you to know if you have powers to sell the house, part of which i have taken, as i find there are several persons in the house at present, which is rather awkward, and makes it too public. "if you have powers to sell i will immediately treat with you; have the goodness therefore to leave the terms with your clerk, or send them to me at no. , great cumberland-street. i will however call again this day before i return to the west end of the town. i am, sir, your obedient servant, (signed) a. cochrane johnstone." _(addressed) mr. addis._ _cross-examined by mr. serjeant best._ _q._ i believe he took the first room for mr. butt expressly? _a._ yes; and gave me a reference to him at mr. fearn's, who then lived in cornhill. _q._ and the next time he came he said he wanted it for mr. fearn? _a._ no; he said then he wanted it for mr. butt. _q._ and the third time he said he wanted it for mr. fearn? _a._ yes. _q._ mr. fearn has now the whole. _a._ yes. _mr. james pilliner, sworn._ _examined by mr. gurney._ _q._ are you a stock broker? _a._ yes. _q._ prior to the st of february had you made any purchases for the defendant holloway, in stock or omnium? _a._ i had, in both. _q._ how much of either was he possessed of before business began on monday the st of february? _a._ £ , omnium and £ , consols. _q._ did you sell that out on that monday? _a._ i sold £ , omnium and £ , consols. _mr. serjeant pell._ does your lordship think, in consequence of what you have suggested already, that the witness is bound to answer to the nature of the stock? _lord ellenborough._ i am not apprized whether it is a real sum or not at present. _mr. serjeant pell._ the reason i now interpose is, that if this should turn out to be a transaction which was not real, the witness would not be bound to answer any question respecting it, because it may tend to criminate himself, and involve him in penalties. the mere circumstance of his having sold stock at all that day, supposing it not real stock, would warrant him in declining to answer these questions. _lord ellenborough._ whether he sold any thing is a link in the chain, or else you might exclude all the transactions of the day, because they might ultimately connect with the vicious sale. _mr. serjeant pell._ suppose it should turn out to be a time bargain, these questions would be material to convict this person of an offence, the amount sold would be very material; therefore if he is not bound to answer the last question---- _lord ellenborough._ i do not prohibit him; i am only to tell him that if these are bargains which are against law, he is bound to know the law, and if it would involve him in any penalty he need not answer the question. _mr. serjeant pell._ all i would request then is, that your lordship would now suggest to the witness that he need not answer any question that will tend to criminate himself. _lord ellenborough._ if it will convict you in penalties, you are not bound to answer any question. _mr. serjeant pell._ i was only taking the liberty to suggest that that admonition may be given in the early part of the examination. _lord ellenborough._ i cannot tell a witness he is not bound to answer a question, until i see that it has some bearing and probable tendency to accuse him; otherwise i must rummage all the statute books for penalties to put the witnesses on their guard--i must not only carry all the penal laws in my head, but mention them to every witness who comes before me upon any subject. _mr. gurney._ did you see mr. holloway on the morning of the st? _a._ yes i did. _q._ did he give you any directions? _a._ i beg to decline answering that question. _mr. gurney._ i submit to your lordship he is not at liberty to decline answering that question. _lord ellenborough._ you may answer that question. did he give you any directions? _a._ he did. _mr. gurney._ what to do? _a._ i must beg to decline answering that question. _lord ellenborough._ you need not answer to what you did; but you must state what he proposed to you to do, unless you did it afterwards, and the having done it would involve you in a penalty. _mr. gurney._ what did he give you directions to do? _a._ to sell stock. _q._ was it to sell all he had, or part of what he had? _a._ to sell all. _q._ at what time on monday was it? _a._ about the middle of the day. _cross-examined by mr. serjeant pell._ _q._ what is mr. holloway? _a._ a wine merchant. _q._ where does he live? _a._ in martin's-lane, cannon-street. _q._ have you known him any time? _a._ i have known him upwards of twenty years. _q._ how long have you acted for him as his broker? _a._ perhaps two years. _mr. james steers sworn._ _examined by mr. gurney._ _q._ are you stock broker to the accountant general of the court of chancery? _a._ i am. _q._ did you as broker to the accountant general, make purchases on monday the st february? _a._ i did. _q._ at what prices? _a._ i made purchases to the amount of £ , : : , at - / per cent. _q._ consols i suppose? _a._ yes, i have got them down in various sums. _q._ was that the high price of the day, or the price at which stock opened in the morning? _a._ i got to my office i think about eleven o'clock, or a little before, i took the orders from the accountant general's office. _q._ at what time did you begin making your purchases? _a._ i think from eleven to a quarter after eleven. _q._ had the news then considerably raised the stocks? _a._ it had. _lord ellenborough._ is that all you did that day? _a._ that is all i did that day. _mr. gurney._ did you do business for any body besides the accountant general on that day? _a._ i cannot speak to any thing but what i did for the accountant general. _lord ellenborough._ though you cannot speak to any thing else in precise sums, do you recollect that you did buy for any body else on that day besides the accountant general? _q._ i can speak to an entry on my books on that day, but i cannot say whether i did the business myself. i do not recollect doing any thing else myself besides that bargain. _a juryman._ at what price could you have bought that lot of consols on saturday? _a._ i can state the purchases i made on saturday to the court; i purchased on saturday the th for the accountant general £ : : at per cent. _mr. gurney._ i have called for lord cochrane's affidavit, it is admitted by my learned friends that notice has been given to produce it, and it is not produced. _mr. john wright sworn._ _examined by mr. adolphus._ _q._ where do you live? _a._ at no. , panton-square. _q._ do you know where lord cochrane lives? _a._ at no. , green-street, grosvenor-square. _q._ had you occasion to see lord cochrane in february or march last? _a._ almost every day in february and in march last. _q._ in the course of that time did he deliver in a paper to you? _a._ yes he did. _q._ what was it? _a._ he delivered several papers to me. _q._ what was done with that? (_shewing a paper to the witness._) _a._ lord cochrane brought me that affidavit for the purpose of getting it inserted in the newspapers. _q._ did you do so? _a._ i did, i got it printed in slips, and distributed a copy of it to each of the newspapers. _q._ have you a copy of it? _a._ i have not. _q._ have you one of the slips? _a._ no, i have not. _q._ did you receive any other copies of affidavits purporting to be affidavits of persons of the name of smith? _a._ no, i had no concern whatever with smith. _q._ smith and his wife? _a._ certainly not, i know nothing of the printing of them. _q._ was the morning chronicle one of the papers in which you put lord cochrane's affidavit? _a._ yes, it was. _mr. park._ it must not be said to be lord cochrane's affidavit, till that is proved. _lord ellenborough._ he printed something purporting to be lord cochrane's affidavit. i have taken it that lord cochrane delivered several papers, one purporting to be an affidavit which this witness inserted in the newspapers. _mr. park._ but when once the expression is used by my learned friend, persons do not get rid of it again. _lord ellenborough._ if he published it as an affidavit, it is quoad him an affidavit. _mr. park._ to be sure, my lord. _cross-examined by mr. serjeant best._ _q._ you have said that he brought this paper to you, giving you directions to have it printed? _a._ he wished it to be inserted in the newspapers. _q._ tell us all that he said to you at the time; did he not at the time when he was giving you directions to print it, say, that if de berenger was the man, he had given the stock exchange the clue to it? _a._ after reading the affidavit, his lordship said "i once saw captain de berenger at dinner." _lord ellenborough._ was this at the time? _a._ yes; he said "i once saw captain de berenger at mr. basil cochrane's--i have no reason to think that captain de berenger is capable of so base a transaction, but if he is, i have given the gentlemen of the stock exchange the best clue to find him out." _lord ellenborough._ did he say what sort of clue he had given? _a._ the clue as to de berenger. _mr. gurney._ by his affidavit? _a._ yes, that by that he had given them the best clue. _re-examined by mr. adolphus._ _q._ when was it this affidavit was given to you? _a._ i cannot state the day. _q._ was it so late as march? _a._ no, it must be about the th or th of february i think, but the newspaper will prove the date; it might be the first or second of march, i cannot speak to that. _q._ was it not after the th of march? _a._ i cannot state indeed. _q._ it was given to you the day before it appeared in the morning chronicle? _a._ it was the day before, about three o'clock. _mr. gurney._ look at that (_shewing a pamphlet to the witness_) have you received one of those pamphlets either from mr. cochrane johnstone, lord cochrane, or mr. butt? _a._ lord cochrane gave me one of those at my own request, hearing it was published. _q._ look at that which purports to be an affidavit of lord cochrane. _mr. serjeant best._ is that the identical book lord cochrane gave you? _a._ no. _mr. gurney._ read the affidavit and tell me whether you know that to be verbally and precisely the same? _mr. serjeant best._ i submit to your lordship that will not do. _mr. gurney._ where is your copy of the pamphlet? _a._ it is at home. _mr. gurney._ will your lordship allow him to go home and fetch it. _lord ellenborough._ certainly. _mr. malcolm richardson called again._ _examined by mr. gurney._ _q._ you are a bookseller? _a._ yes. _q._ were you employed by mr. butt to publish that pamphlet? _a._ not absolutely employed by him to publish it, but i sold it for him at his request, he wrote to me to know whether i would sell it for him. _lord ellenborough._ this should be a publication by lord cochrane, to make the affidavit evidence against him. _mr. gurney._ certainly, my lord, and if my learned friends wish it, i will wait till the witness comes back. _mr. serjeant best._ i have no wish to lay any impediment in the way, therefore if your lordship thinks there is no impropriety in my permitting it to be read now, i will do it? _lord ellenborough._ i leave it to your judgment, whether your resistance does you more good than the admission. _mr. serjeant best._ i will not resist it certainly. if i had the original i would deliver it up in a moment, but the fact is, we have not the original. _the affidavit was read as follows:_ "having obtained leave of absence to come to town, in consequence of scandalous paragraphs in the public papers, and in consequence of having learnt that hand-bills had been affixed in the streets, in which (i have since seen) it is asserted that a person came to my house, at no. , green-street, on the st day of february, in open day, and in the dress in which he had committed a fraud; i feel it due to myself to make the following deposition that the public may know the truth relative to the only person seen by me in military uniform, at my house, on that day. cochrane." _march , ._ _ , green-street._ "i, sir thomas cochrane, commonly called lord cochrane, having been appointed by the lords commissioners of the admiralty, to active service (at the request, i believe, of sir alexander cochrane) when i had no expectation of being called on, i obtained leave of absence to settle my private affairs previous to quitting this country, and chiefly with a view to lodge a specification to a patent relative to a discovery for increasing the intensity of light. that in pursuance of my daily practice of superintending work that was executing for me, and knowing that my uncle, mr. cochrane johnstone, went to the city every morning in a coach. i do swear, on the morning of the st of february (which day was impressed on my mind by circumstances which afterwards occurred) i breakfasted with him at his residence in cumberland-street, about half past eight o'clock, and i was put down by him (and mr. butt was in the coach) on snow-hill, about ten o'clock; that i had been about three quarters of an hour at mr. king's manufactory, at no. , cock-lane, when i received a few lines on a small bit of paper, requesting me to come immediately to my house; the name affixed, from being written close to the bottom, i could not read. the servant told me it was from an army officer, and concluding that he might be an officer from spain, and that some accident had befallen to my brother; i hastened back, and i found captain berenger, who, in great seeming uneasiness, made many apologies for the freedom he had used, which nothing but the distressed state of his mind, arising from difficulties, could have induced him to do. all his prospects, he said, had failed, and his last hope had vanished, of obtaining an appointment in america. he was unpleasantly circumstanced, on account of a sum which he could not pay, and if he could, that others would fall upon him for full £ . he had no hope of benefiting his creditors in his present situation, or of assisting himself. that if i would take him with me he would immediately go on board and exercise the sharp-shooters, (which plan sir alexander cochrane, i knew, had approved of.) that he had left his lodgings and prepared himself in the best way his means allowed. he had brought the sword with him which had been his fathers, and to that, and to sir alexander, he would trust for obtaining an honourable appointment. i felt very uneasy at the distress he was in, and knowing him to be a man of great talent and science, i told him i would do every thing in my power to relieve him; but as to his going immediately to the tonnant, with any comfort to himself, it was quite impossible, my cabin was without furniture, i had not even a servant on board. he said he would willingly mess any where. i told him that the ward-room was already crowded, and besides i could not with propriety take him, he being a foreigner, without leave from the admiralty. he seemed greatly hurt at this, and recalled to my recollection certificates which he had formerly shewn me, from persons in official situations. lord yarmouth, general jenkinson, and mr. reeves, i think, were amongst the number. i recommended him to use his endeavour to get them, or any other friends, to exert their influence, for i had none, adding that when the tonnant went to portsmouth, i should be happy to receive him; and i knew from sir alexander cochrane, that he would be pleased if he accomplished that object. captain berenger said, that not anticipating any objection on my part from the conversation he had formerly had with me, he had come away with intention to go on board and make himself useful in his military capacity;--he could not go to lord yarmouth, or to any other of his friends, in this dress, (alluding to that which he had on) or return to his lodgings where it would excite suspicion (as he was at that time in the rules of the king's bench) but that if i refused to let him join the ship now, he would do so at portsmouth. under present circumstances, however, he must use a great liberty, and request the favour of me to lend him a hat to wear instead of his military cap. i gave him one which was in a back room with some things that had not been packed up, and having tried it on, his uniform appeared under his great coat; i therefore offered him a black coat that was laying on a chair, and which i did not intend to take with me. he put up his uniform in a towel, and shortly afterwards went away in great apparent uneasiness of mind; and having asked my leave, he took the coach i came in, and which i had forgotten to discharge in the haste i was in. i do further depose, that the above conversation is the substance of all that passed with captain berenger, which, from the circumstances attending it, was strongly impressed upon my mind, that no other person in uniform was seen by me, at my house, on monday the st of february, though possibly other officers may have called (as many have done since my appointment;) of this, however, i cannot speak of my own knowledge, having been almost constantly from home, arranging my private affairs. i have understood that many persons have called under the above circumstances, and have written notes in the parlour, and others have waited there in expectation of seeing me, and then gone away, but i most positively swear that i never saw any person at my house resembling the description, and in the dress stated in the printed advertisement of the members of the stock exchange. i further aver that i had no concern, directly or indirectly, in the late imposition, and that the above is all that i know relative to any person who came to my house in uniform on the st day of february, before alluded to. captain berenger wore a grey great coat, a green uniform and a military cap. from the manner in which my character has been attempted to be defamed, it is indispensibly necessary to state that my connexion in any way with the funds, arose from an impression that in the present favourable aspect of affairs, it was only necessary to hold stock in order to become a gainer without prejudice to anybody; that i did so openly, considering it in no degree improper, far less dishonorable; that i had no secret information of any kind, and that had my expectation of the success of affairs been disappointed, i should have been the only sufferer. further, i do most solemnly swear that the whole of the omnium on account, which i possessed on the st day of february, , amounted to £ , which i bought by mr. fearn (i think) on the th ultimo at a premium of - / , that i did not hold on that day any other sum on account in any other stock directly or indirectly, and that i had given orders when it was bought to dispose of it on a rise of one per cent, and it actually was sold on an average at - / premium, though on the day of the fraud it might have been disposed of at - / . i further swear, that the above is the only stock which i sold of any kind on the st day of february, except £ in money which i had occasion for, the profit of which was about £ . further, i do solemnly depose, that i had no connexion of dealing with any one, save the above mentioned, and that i did not at any time, directly or indirectly, by myself or by any other, take or procure any office or apartment for any broker or other person for the transaction of stock affairs." "cochrane." _mr. james le marchant sworn._ _examined by mr. bolland._ _q._ are you acquainted with captain de berenger? _a._ i was so. _q._ when did your acquaintance with him commence? _a._ about months ago. _q._ how long did it continue? _a._ it continued until the th of february to the best of my knowledge. _q._ between those periods was captain de berenger in the habit of calling upon you frequently? _a._ he was, from the th to the th of february. _q._ at what period of the day? _a._ at different periods. _q._ did he pass his evenings with you? _a._ occasionally. _q._ in conversations with him, did you ever collect from him, whether he had any connexion with lord cochrane or mr. cochrane johnstone? _a._ i did--with both. _q._ state to the court what he has told you. _a._ he stated that he was about to go to america under the command of lord cochrane; on his mentioning this, i put the question to him, how he possibly could do it under the embarrassments that he laid under, upon which he answered, all was settled on that score. _q._ do you recollect upon what day this conversation passed? _a._ i should think nearly about the th, to the best of my recollection, he said, that for the services he had rendered lord cochrane and mr. cochrane johnstone, whereby his lordship could realize a large sum or large sums of money by means of the funds or stocks, one of the words, that his lordship was his friend, and had told him a few days before, that he had kept unknown to him till that period, a private purse for him de berenger. _q._ did he state to you whether there was any particular intimacy between him and lord cochrane, or mr. cochrane johnstone? _a._ he frequently mentioned particular intimacy of dining, breakfasting and supping with his lordship. he said, in which purse he had placed or deposited a certain per centage out of the profits which his lordship had made by his stock suggestions. _q._ did you afterwards hear of the events of the st of february? _a._ i did so. _q._ did you upon that make known to any parties, and to whom, your suspicions of captain de berenger having been active in them? _a._ i did so. _q._ to whom were those communications made? _a._ to captain taylor of his majesty's nd regiment of foot, and lieutenant wright in the honorable east india company's service. _q._ did you collect in any conversations you had with captain de berenger, that lord cochrane and mr. cochrane johnstone consulted him in any transactions of stock? _mr. park._ that is a pretty good leading question. _mr. bolland._ did he state to you any thing respecting their consulting him as to stock transactions? _a._ most undoubtedly, or i should not have drawn the conclusions i did. _q._ for what was he to have a per centage? _a._ for the ideas he had given to lord cochrane, enabling him to make a profit in the stocks. _q._ did he extend that to mr. cochrane johnstone, or lord cochrane? _a._ to both. _mr. serjeant best._ i am aware that your lordship will not consider this as evidence against lord cochrane, or mr. cochrane johnstone. _lord ellenborough._ no; it is admissible evidence, the effect of it is another thing. _cross-examined by mr. serjeant best._ _q._ you have been corresponding with my lord cochrane. _a._ i have so. _q._ you are now a prisoner in the king's bench, i believe? _a._ no; i am not. _q._ you have told my lord cochrane?---- _mr. bolland._ have you ever had any communication with lord cochrane but in writing? _a._ none individually. _mr. bolland._ then i object to any questions except as to letters. _mr. serjeant best._ you are a gentleman whose appointment government have stopped? _a._ it is not stopped. _q._ suspended? _a._ it is not suspended. _q._ you mean to state that upon your oath? _a._ i state that i hold the situation of secretary and register to the court of antigua and montserrat. _q._ you have not been prevented from going out? _a._ in consequence of being compelled to give my evidence either at this court or some other court. _q._ and not on any other account? _a._ not that i know of. _q._ you know of no other reasons why government have prevented your going out, but that you may be kept here as a witness? _a._ yes. _q._ you mean to state that broadly? _a._ precisely. _q._ is that your hand writing? (_shewing a letter to the witness_) _a._ it is. _q._ just look at these; are these your hand writing? (_shewing other letters to the witness._) _a._ that is not. _q._ that is lord cochrane's hand writing, is it not, you have got one in your pocket that is a copy of one that lord cochrane wrote to you in answer to one of your letters? _a._ i will look at it. (_the witness read the letter over._) this is precisely the same as one i have in my pocket. _q._ you have got that letter about you? _a._ i have. _q._ have you not proposed to my lord cochrane to lend you money, and have you not told his lordship that if he would not---- _mr. bolland._ my lord, he says he has had no communication but in writing. _a._ i have had no communication with lord cochrane but in writing. _mr. serjeant best._ would you have given this evidence if you could have obtained a loan of money from lord cochrane? _a._ most undoubtedly; i must have been compelled to do it upon oath if brought forwards in a court of justice. _q._ i will not have a reasoning answer, but a direct answer, and that answer i will have taken down. would you have given this evidence here if you could have obtained a loan of money from lord cochrane? _a._ if my lord cochrane had not called me forwards, of course i should not have given an evidence, but he has compelled me. _q._ that will not do, i will put the question again; i want an answer, yes, or no, to this; would you have given this evidence if you could have obtained a loan of money from lord cochrane? _a._ i hardly consider that question as fair; if his lordship says it is i will answer it. _lord ellenborough._ i rather think the terms of the question embrace some communications; he says he has had no communications about a loan in any way but in writing, and i think you cannot in that way travel indirectly to the contents of a letter; if the letter says any thing about a loan of money, you may give it in evidence. _mr. serjeant best._ will your lordship allow me to put it in this way. i have no right to ask the contents of any letter but with humble deference to your lordship; i have a right to ask this man what passed in his own mind, for it does not yet appear that he put it upon paper; if the question had been what have you written to lord cochrane? that would have been objectionable, but surely i have a right to ask him what is passing in his own mind upon the subject, to know the motives from which this gentleman, of whom i shall speak by and by, comes to speak. _lord ellenborough._ do you give your evidence from resentment in consequence of having some loan refused to you? _a._ none individually--none whatever. _mr. bolland._ my lord, i must object to my learned friend mr. serjeant best getting the effect of a correspondence which was in writing. _lord ellenborough._ he does not refer to it, but one cannot but be conscious after what has passed, that all that has ever passed about a loan has been in writing, therefore it would be the most ingenuous course to put it in. _serjeant best._ i certainly mean to read this man's letters. _lord ellenborough._ i asked him in the strongest manner possible, do you now give your evidence in resentment for having a loan, or any other benefit withheld from you? you may press that if you please. _mr. serjeant best._ i will put it in the way your lordship suggests. do you not now give your evidence in consequence of your being angry with lord cochrane for refusing to lend you money? _a._ no. so help me god. _q._ now take care. do you know a gentlemen of the name of palfreyman? _a._ i have met him twice, i think, within this fortnight past. _q._ you have no resentment against lord cochrane whatever i understand you? _a._ none whatever. _q._ you have never so expressed yourself to mr. palfreyman? _a._ i am persuaded i never have. _q._ you never have told mr. palfreyman then that you would be his ruin? _a._ never. _q._ nothing like that? _a._ never. _q._ that you would assist the stock exchange? _a._ never. _q._ nothing of the sort? _a._ i have already answered you. _q._ that will not do. where did you come from now? _a._ i came from the gloucester coffee house. _q._ i should have thought you had been in a coffee house, it is after dinner time i suppose. you are sure you never said any thing of the kind? _a._ i have repeated it three or four times. _q._ you know this gentleman very well, mr. palfreyman? _a._ a very slight acquaintance. _q._ now i ask you another thing--did you ever disclose this conversation with mr. de berenger till after lord cochrane refused you a loan? _lord ellenborough._ if any application you made for a loan was in writing, you are not bound to answer that question. _mr. serjeant best._ my question was as to the time of the disclosure to the stock exchange, i will certainly read his letters; this does not touch me, but my learned friends of counsel for de berenger had not seen these letters. my question is, whether you ever disclosed the matter you have stated to day against de berenger till after you were refused a loan by lord cochrane? _lord ellenborough._ but if the proposition for loan was in writing, the letter must explain itself. _mr. scarlett._ if we are not allowed to examine this witness as to his motives and his conduct as to these letters, i do not see how these letters could ever be made evidence. _lord ellenborough._ you cannot examine him as to his motives, without producing the letters, that would be extracting the most unfair testimony in the world; i know nothing about the man, i never saw his face before to-day; but he, as a witness, has a right to the common protection of the law of the land, and not to have garbled questions put to him. _mr. scarlett._ we do mean to read the letters. _lord ellenborough._ and then you may call him back to ask him any questions upon them; but i would not have him answer without the letters being read. _mr. brougham._ my learned friend merely referred to the letters as a date, not to the substance of the letters. _lord ellenborough._ but he has said that he never had any communication with lord cochrane, but by letter, therefore the request for a loan, if any one was made, must have been by writing, and if he is to be questioned about that request in writing, he ought to have the terms of that request in writing read before the jury, so as to give a pointed answer to it. _mr. brougham._ with great submission, my learned friend, did not ask as to the contents of the correspondence, but in point of date and time merely; he put this question, was your information given to the stock exchange previously or subsequently to that correspondence, whatever the contents of that correspondence were? _lord ellenborough._ i never heard that question put till this moment. previous to some supposed correspondence, without stating the nature of that correspondence, was the information given by you to the stock exchange? _a._ no, it was given by lord cochrane in his publication of the correspondence in the morning chronicle. _lord ellenborough._ we cannot get on without the letters. _mr. serjeant best._ i have no objection to the letters being read now. _lord ellenborough._ that would disturb the order of the proceedings. _cross examined by mr. richardson._ _q._ the conversation with mr. de berenger was about the th of february? _a._ yes it was. _q._ have you not reason to know that about that time he had expectations of getting some employment in america? _a._ he mentioned it to me himself. _q._ to serve under sir alexander cochrane who had a command? _a._ to serve under lord cochrane as i understood. _q._ he expressed his anxious desire and wish to be so employed? _a._ particularly so. _q._ he expressed a hope that he might make himself useful to the cause, by drilling the sharp shooters, and other things of that sort? _a._ that was what he represented. _q._ did you not know that he had had experience as a volunteer officer in a particular department? _a._ i had a very high opinion of him as being acquainted with that science. _q._ he had been a captain for a considerable number of years in the duke of cumberland's corps of sharp shooters? _a._ adjutant i understand. _q._ you considered him as a man of science and skill in that department? _a._ i did. _q._ do you not know that he was making preparations at that time in order to go to america if he should be successful in procuring the appointment he was soliciting? _a._ not making preparations, those i know nothing of. _q._ that it was his anxious wish and desire to go you heard from him? _a._ yes. _re-examined by mr. bolland._ _q._ did the stock exchange apply to you, or did you go to them to give information. _a._ the stock exchange applied to me and sent me a subpoena. _q._ was the application made to you after lord cochrane's publication, or before? _a._ after lord cochrane's publication. the information that i gave to the two gentlemen, captain taylor and lieutenant wright was prior to lord cochrane's affidavit, or its ever being mentioned in my hearing that mr. de berenger was implicated in this business. _the honorable alexander murray sworn._ _examined by mr. bolland._ _q._ you are in his majesty's service as an officer? _a._ not at present. _q._ i believe you have the misfortune at present to be in the king's bench. _a._ i am. _q._ in the rules? _a._ in the inside. _q._ are you acquainted with captain de berenger, and how long have you been so. _a._ about a year and a half i have been. _q._ who introduced you to captain de berenger? _a._ mr. tahourdin, who was my solicitor, and likewise the solicitor of mr. de berenger. _q._ in consequence of that introduction did a considerable intimacy take place between you and the captain? _a._ there did. _q._ were you frequently together? _a._ very frequently; when i first went over to the rules of the bench, i lodged with mr. de berenger in the same house for about one month, till i took a house of my own. _q._ had you at any time any conversation with captain de berenger previous to the st of february with respect to lord cochrane and mr. cochrane johnstone? _a._ towards the end of january i think, or perhaps the beginning of february. _q._ what was the substance of these conversations? _a._ it happened one sunday between one and two o'clock, mr. harrison called upon me, and we were conversing about a pamphlet he was writing. _q._ that mr. harrison was writing? _a._ yes; it was relative to the trial between mr. basil cochrane and mr. harrison. _q._ that impressed the day upon your recollection? _a._ yes. _q._ did captain de berenger come in that day? _a._ yes; he came in during the conversation and joined in it. _q._ did any thing pass from captain de berenger on that day respecting mr. cochrane johnstone and lord cochrane? _a._ i at that time knew he was employed by mr. cochrane johnstone. _q._ from whom did you understand that? _a._ from mr. de berenger himself, that he was employed by mr. cochrane johnstone in planning out a small piece of ground behind his house in alsop's buildings. _q._ what passed at that time about mr. cochrane johnstone? _a._ he mentioned that there was a transaction going on. _q._ does the circumstance of the pamphlet bring back to your recollection what sunday it was? _a._ i cannot state the day of the month, but it was towards the end of january or the beginning of february. _q._ state what mr. de berenger then said? _a._ he said that they had a plan in view---- _a._ who had? _a._ that de berenger had, with mr. cochrane johnstone and lord cochrane, that provided it succeeded, it would put many thousand pounds in the pocket of mr. cochrane johnstone and lord cochrane. _q._ upon hearing this, did either you or mr. harrison ask captain de berenger what the plan was? _a._ i did, and he declined answering it; i said, "is it the plan with regard to ranelagh which it was proposed to build in alsop's buildings, on mr. cochrane johnstone's land," and he said "no, it is not, it is a far better plan." _q._ did you collect from mr. de berenger's conversation with you, whether there was any particular intimacy between him and mr. cochrane johnstone and lord cochrane? _a._ i knew there was a very particular intimacy between him and mr. cochrane johnstone, but i did not understand it was with lord cochrane at all; i understood he was a more recent acquaintance. _q._ from what did you collect that; what did mr. de berenger say to you that induced you to believe he was intimate with mr. cochrane johnstone? _a._ he was constantly with him; he was there almost every day. _q._ you say that his acquaintance with lord cochrane was recent? _a._ i do. _q._ when you understood him to be acquainted with lord cochrane, did he state any thing with regard to his visits to lord cochrane? _a._ he did not. _cross-examined by mr. park._ _q._ you have known mr. de berenger a great while? _a._ yes, i have. _q._ he is a man of very considerable science and attainment i am told? _a._ very much so. _q._ i believe you happen to know that he was at that time, or had been about that time engaged in some plan of mr. johnstone's about building a place called vittoria, in consequence of the great victories? _a._ it was to be called ranelagh i understood, i never heard of the name vittoria. _q._ he had been engaged for a considerable time before in drawing a plan? _a._ he had, which i had seen. _q._ and that led him, as you understood, to be very much with mr. cochrane johnstone? _a._ it did. _q._ alsop's buildings is somewhere near mr. cochrane johnstone's house? _a._ mr. cochrane johnstone has a house there, and this is the ground immediately behind it, about an acre, which is in garden ground, and which was to be converted to that use. _q._ something upon the plan of the old ranelagh? _a._ something upon an improved plan of mr. de berenger's. _q._ you have seen the plan you say, which mr. de berenger drew for mr. cochrane johnstone? _a._ yes. _q._ how long ago is that? _a._ i cannot exactly say how long ago it was. _q._ was it before this conversation a good while? _a._ before this conversation; when i was in the habit of calling upon him. _q._ about the close of the last year probably? _a._ about that time, i cannot exactly say. _q._ was it not a very beautiful plan that he had drawn for this ranelagh? _a._ it was. _q._ it required, from the nature of it, a considerable deal of time and labour? _a._ it did certainly. _q._ do you know whether mr. de berenger was very much employed in plans of that kind for the royal family and others? _a._ he was. _lord ellenborough._ if you see any tendency to the advantage of your client, i will not interrupt you, but at present this seems to have no bearing. _mr. park._ i assure your lordship, and i know i shall have credit for believing what i state, i would not at this hour of the night pursue it if it was not important, but i feel it necessary when it is stated that there has been a wonderful intimacy, from which, conspiracy is sought to be inferred. _lord ellenborough._ i will not ask you to go into your reasons, if you only say you think it material. _mr. park._ as far as you have seen mr. de berenger, for the length of time you have described, do you not believe him to be a man of honor and integrity? _a._ i certainly do from every thing i have seen; i saw nothing but the most perfect gentleman during the time i lodged under the same roof. _william carling sworn._ _examined by mr. adolphus._ _q._ whose servant are you? _a._ the honorable basil cochrane's. _q._ are you in his service still? _a._ yes. _q._ did mr. cochrane johnstone and my lord cochrane visit at your master's house? _a._ yes. _q._ have you ever seen them there in company with captain de berenger? _a._ yes; baron de berenger is the name i have given in. _q._ the gentleman who sits there now? _a._ yes. _q._ did he come there once, or oftener, within your memory? _a._ twice. _q._ who brought him? _a._ i do not know that any body brought him in particular, he came to dine there as a visitor. _q._ with whom? _a._ not with any body in particular; invited by the honorable basil cochrane. _q._ was that upon days when mr. cochrane johnstone and lord cochrane were there? _a._ mr. cochrane johnstone and lord cochrane dined there once; lord cochrane did not the second time? _q._ as far as you could observe, did lord cochrane and mr. cochrane johnstone appear to be acquainted with the baron de berenger, or to be then first introduced to him? _a._ they appeared to be acquainted with him. _cross-examined by mr. topping._ _q._ can you tell us what time this was? _a._ in january the first time, and the next in february, but i cannot say what day. _q._ you live with mr. basil cochrane? _a._ yes. _q._ he is related to lord cochrane? _a._ yes, he is uncle to lord cochrane. _q._ and mr. basil cochrane having a dinner party, baron de berenger was one of the party, and lord cochrane another? _a._ yes. _q._ and mr. cochrane johnstone another? _a._ yes. _q._ did the dinner party consist of any other? _a._ yes, the first time, admiral cochrane (sir alexander), his lady, and some more ladies and gentlemen. _q._ was that the day lord cochrane dined there? _a._ yes, it was. _q._ then upon another occasion, mr. basil cochrane having a diner party, mr. cochrane johnstone formed one of the party, and baron de berenger another? _a._ yes. _q._ was there an indiscriminate mixture of ladies and gentlemen again then? _a._ yes. _q._ and lord cochrane was not there? _a._ he was not. _q._ you have been asked whether baron de berenger and lord cochrane and mr. cochrane johnstone appeared to be acquainted--did baron de berenger appear to be acquainted with admiral cochrane? _a._ i cannot say. _q._ you were merely a servant attending at table? _a._ yes. _cross-examined by mr. richardson._ _q._ from the conversation that passed, did you understand whether baron de berenger was going to america to serve under admiral cochrane. _a._ i did not. _mr. barnard broochooft sworn._ _examined by mr. bolland._ _q._ you are deputy marshal of the king's bench? _a._ i am clerk to the marshal of the king's bench. _q._ do you know baron de berenger? _a._ yes. _q._ was he, during the latter end of the last year, and the beginning of the present, a prisoner in the king's bench? _a._ yes. _q._ how long had he been confined there? _a._ i think from the latter end of the year . _q._ till what time? _a._ i am not prepared to state the day but till within about six weeks. _q._ have you the book of rules here? _a._ i have not. _q._ did you miss him at any time? _a._ yes some months. _mr. park._ i waive the objection to your asking your questions, so far as i am concerned for mr. de berenger. _mr. bolland._ who were the securities for mr. de berenger? _a._ mr. cochrane, a bookseller, in fleet-street, and mr. tahourdin, the attorney. _q._ you made search for him and could not find him? _a._ yes. _cross-examined by mr. serjeant best._ _q._ that cochrane was not at all connected with the dundonald family? _a._ i asked the question, and i understood not. _cross-examined by mr. park._ _q._ mr. cochrane is partner in the house of mr. white, of fleet-street? _a._ yes. _q._ i believe you saw mr. de berenger on the morning of the st very early, did not you? _a._ no. _q._ recollect yourself, because i understand you did see him that morning? _a._ i cannot recollect having seen mr. de berenger for a very great length of time, and i think long previous to that? _q._ i have reason to put the question, or i should not to you, not doubting the veracity of your answer; recollect whether you did not see him near the king's bench prison, very early on that morning? _a._ i have nothing by which i can charge my recollection. _q._ the security was given a considerable time ago for the rules? _a._ a very considerable time ago, nearly two years ago i should think. _q._ it was not for a very large sum? _a._ under £ . i think. _q._ you will excuse my asking, but the security is generally nearly commensurate with the debt? _a._ they generally do take it for the amount as nearly as possible, calculating the costs. _q._ more than the debt then? _a._ yes. _mr. bolland._ was mr. ralph sandom a prisoner in the king's bench prison? _a._ twice he has been a prisoner. _q._ was he on the st of february? _a._ i have not the books, and cannot state that. _mr. joseph wood sworn._ _examined by mr. gurney._ _q._ are you a messenger of the alien office? _a._ i am. _q._ did you on the d or th of april leave london in order to apprehend de berenger? _a._ i did on the th. _q._ had you a warrant of the secretary of state? _a._ i had. _q._ how long had you had it in your possession? _a._ ever since the th of march. _q._ where did you find him? _a._ at leith. _q._ on what day? _a._ on the th of april. _q._ did you find him in possession of any writing desk? _a._ of this one. (_producing a portable desk_). _q._ did that writing desk contain papers and bank notes? _a._ yes. _q._ before you parted with any of those papers or bank notes did you mark them? _a._ yes i did. _q._ when did you mark them? _a._ i marked them before the grand jury the day of the bill being found. _q._ have they been in your possession from the day you marked them? _a._ they have from the hour i took mr. de berenger. _q._ were there any pieces of coin in the writing desk also? _a._ there were guineas and half guineas, and in the pocket book there were two napoleons. (_the witness opened the desk._) _q._ the bank notes are in parcels i believe? _a._ yes they are. _q._ give me the packet with the . _they were handed in._ _mr. gurney._ i believe it will be more clear if i do not open them now till i have proved them? _a._ here are two packets, and a pocket book containing a fifty pound note and four five pound notes, the napoleons are in the pocket book. _q._ there is a memorandum book also and a paper of memorandums? _a._ there are. _the witness delivered them in._ _q._ there is a road book besides? _a._ yes there is. _mr. park._ there are some papers of which i have heard no proof; there is a paper, in which it is stated there is some pencil mark, i have heard no proof of any pencil mark, or any writing; it is not evidence because it is in his pocket-book because one has many things in a pocket-book which are not in one's hand-writing. _mr. gurney._ this is the writing. _mr. park._ i shall not look at it; i do not know his hand-writing. _mr. gurney._ mr. jones, i will trouble you to read the first article in that memorandum-book. _mr. park._ that cannot be done. _mr. gurney._ it is found in his letter-case. _mr. park._ i object till his hand-writing is proved; the finding a manuscript in my possession, is not sufficient to warrant its being read as evidence against me; your lordship might confide some paper to me, and it would be very hard to read that against me. _lord ellenborough._ it is _prima facie_ evidence i think, subject to any observations you make upon it. _mr. park._ it is found in that thing, not in his pocket. _lord ellenborough._ (_to wood_) was it under his lock? _a._ it was in his possession when i took him. _mr. park._ am i to be answerable for all manner of things sent to me by my friends? _lord ellenborough._ i think a paper found under the lock and key of the party, is _prima facie_, readable against him; it is subject to observations. if you do not go further, the reading this as found in his possession, is doing little. _mr. gurney._ (_to mr. lavie_) do you believe that to be mr. de berenger's writing? _a._ i have no doubt about it. _mr. park._ is it in pencil or ink? _a._ in ink. _mr. serjeant best._ that cannot be evidence against the cochranes. _lord ellenborough._ no, if it was transmitted by him in writing to the others, it would be evidence against them; but it purports to be only a memorandum of his own. _mr. gurney._ certainly not, my lord. _the extract was read as follows_: "to c. i. by march st , £ --£ to --assign one share of patent and £ worth shares of jn. de beaufain at messrs. h. to their care.--believe from my informant £ , instead of £ --suspicious that mr. b. does not account correctly to him as well as me. determined not to be duped. no restrictions as to secresy--requesting early answer." _mr. gurney._ that is all i wish to read. _mr. park._ i never heard a word of this. _mr. gurney._ very likely not. _cross-examined by mr. richardson._ _q._ did you carry this box of papers before the grand jury? _a._ yes i did, the writing desk. _q._ by whose orders was that done? _a._ by orders of the secretary of state, of mr. beckett; i was subpoenaed to bring it before the grand jury, and i carried the subpoena to take directions from mr. beckett the under secretary of state. _q._ you received mr. beckett's orders to do it? _a._ with the subpoena i told mr. beckett i had received an order to take it before the grand jury, and i did so. _mr. park._ there are no subpoenas for the grand jury. _mr. gurney._ there are indeed, crown office subpoenas. _mr. richardson._ by whose order were the seals put on at edinburgh taken off? _a._ by order of mr. beckett. _q._ that was before you went before the grand jury? _a._ yes. _q._ has the box remained in your possession ever since you took it at edinburgh? _a._ yes, ever since when i went a journey to holland; in my absence mr. tahourdin wished to see it, and mr. musgrave opened it for him. _q._ except the time you took a journey to holland it has been in your possession? _a._ yes. _q._ had the seals been opened before that time, before you went to holland? _a._ they had. _q._ in whose possession was it during the time of your absence? _a._ mr. musgrave's, and he delivered it up to me again. _q._ who is mr. musgrave? _a._ one of the clerks in the office. _q._ how long were you absent? _a._ a week or ten days. _q._ has it been in your possession ever since your return? _a._ yes, it has. _q._ were you present all the time it was before the grand jury? _a._ i was; i left it on the grand jury table when i went out, but i locked it, and i had the key. _q._ with all its contents locked up in it? _a._ yes. _q._ were you present when mr. wakefield of the stock exchange, and mr. lavie called, i think on the very day that mr. de berenger arrived in london? _a._ i was. _q._ was that at your house? _a._ no it was not. _q._ where was it? _a._ at the parliament street coffee house. _q._ that was the place you carried him to first? _a._ no, first to the secretary of state's office, and afterwards to the parliament street coffee house. _q._ the day of your arrival those gentlemen came there? _a._ they were there. _q._ mr. wakefield and some other gentleman? _a._ mr. wakefield and another gentleman. _q._ who was the other gentleman? _a._ i do not exactly recollect. _q._ was it not stated to him by those gentlemen that they did not wish to press him if he would furnish information against lord cochrane, mr. cochrane johnstone, and mr. butt? _a._ i do not recollect hearing those names mentioned. _q._ against the other gentlemen? _a._ no, i do not recollect hearing that. _q._ did they not state that what they wanted was information from him to fix the guilt upon others? _a._ not to my recollection. _q._ or any thing to that effect? _a._ i do not recollect any thing of the kind, i did not exactly listen to the conversation. _q._ he was in your custody, and you in the room all the time? _a._ not exactly; i was there the greatest part of the time. _q._ be so kind as to recollect yourself, it was only in the month of april last that this happened, many circumstances have called this to your recollection since; what was the conversation that passed; what did they state to him as to his furnishing information? _a._ there were some gentlemen wanted to speak to mr. de berenger; mr. wakefield went very close to mr. de berenger, and i declare to you upon my oath i do not recollect any particular words. _q._ the substance is all i want? _a._ i really do not recollect the substance. _q._ was any thing said as to his furnishing information: recollect, that you are to tell the whole truth upon your oath, as far as you recollect it; what was said upon that subject, as far as you can recollect? _a._ mr. wakefield did say something to him, but i really do not recollect. _q._ was it to that effect? _a._ mr. wakefield put some questions to mr. de berenger respecting this business, the stock exchange business; but the exact conversation, which i did not listen to, i cannot say. _q._ respecting the other persons supposed to be concerned, was not that the effect of it? _a._ something to that effect i think, but i did not listen to the conversation. _lord ellenborough._ what is the effect? only something about other persons, that is no effect. _mr. richardson._ what was the effect of it? _a._ mr. wakefield put some questions respecting the stock exchange, i did not attend exactly to what it was. _lord ellenborough._ you had better call mr. wakefield, who put the questions, than he who did not hear what passed. _mr. park._ we cannot call mr. wakefield; he is one of the prosecutors, he is one of the stock exchange. _lord ellenborough._ i know nothing about mr. wakefield; as long as the question is sperate i am willing to hear it put, but it has been put ten times and the same answer returned. _mr. richardson._ did you hear names mentioned? _a._ i did not. _q._ did you hear them tell him, that their wish was that he should furnish information, to bring home the guilt to others? _a._ i remember the word information, and that is all i recollect. _q._ that they wanted information? _a._ that is all i recollect. _q._ before this conversation took place, did not mr. de berenger say that he wished to be attended by counsel, if they wished to converse with him? _a._ mr. de berenger did answer something, but i cannot state what it was; i did not attend to the conversation. _q._ before these gentlemen were introduced by you to him, did he not say that he was exhausted by his journey, and unwilling to see them, unless he could have some person present? _a._ he did; he said he was very unwell, and exhausted by his journey. _q._ and desired not to see them, unless some person was present with them? _a._ yes, i think he did say something of that kind, that he was very faint with his journey. _q._ but nevertheless you introduced them to him that evening? _a._ they were in the room with him, they came into the room with him; that was at the time that mr. wakefield was in the room, i believe. _mr. park._ that he was very unwell, and would not answer unless some person was with him? _lord ellenborough._ did he say that he was unwilling to answer, without having some friend present? _a._ i do not recollect that; but he said he was very unwell, and exhausted with the journey. _mr. park._ nevertheless a long conversation did take place, did it? _a._ i believe mr. wakefield was there about ten minutes or a quarter of an hour, not more than that. _re-examined by mr. gurney._ _q._ did you put your marks upon these things before you went to holland? _a._ yes, i did. _mr. joseph fearn called again;_ _examined by mr. gurney._ _q._ be so good as to look at that check dated the th of february [_shewing it to the witness_] did you give that check to mr. butt? _a._ i did on the day of its date, the th of february. _mr. joseph brumfield sworn;_ _examined by mr. gurney._ _q._ are you the clerk that paid the check on the th of february? _a._ i am not. _q._ is mr. evans here? _a._ i believe not; i have not seen him. _mr. william smallbone called again;_ _examined by mr. gurney._ _q._ on the th of february , did you draw that check [_shewing it to the witness_]? _a._ yes. _q._ for whom? _a._ for lord cochrane. _q._ did you give it to lord cochrane? _a._ i did. _q._ for lord cochrane? _a._ yes. _q._ to pay for gains upon the stock account? _a._ not gains exactly, but upon the stock account. _q._ to whom personally did you give it? _a._ to lord cochrane. _cross examined by mr. serjeant best._ _q._ was mr. butt in the office at the time? _a._ yes, i think he was. _q._ do you recollect whether you gave it into the hands of lord cochrane or mr. butt? _a._ i think into the hand of lord cochrane; i feel satisfied in my mind that i gave it to lord cochrane and not to mr. butt. _q._ if you gave it to lord cochrane, did you see lord cochrane hand it over to mr. butt? _a._ no, i cannot say that i did. _q._ have you no recollection one way or the other? _a._ no. _q._ nor is your recollection very distinct whether you gave it to one or the other? _a._ i have no reason to think i gave it to mr. butt. _q._ mr. butt frequently acted for lord cochrane? _a._ not with me. _lord ellenborough._ do you believe you gave it to lord cochrane? _a._ i do, but i am not certain whether i laid it before him upon the table, or gave it into his hand. _lord ellenborough._ you presented it to him, and gave it into his reach, so that he might take it? _a._ yes. _a juryman._ you charged him with it in account? _a._ yes, i did. [_the check on messrs. jones, loyd & company, dated the th of february , for the sum of_ £. . _s._ _d._ _was read._] _edward wharmby sworn;_ _examined by mr. gurney._ _q._ are you clerk to jones, loyd & company? _a._ yes. _q._ look at that check [_handing it to the witness_] did you pay that check? _a._ yes, i did. _q._ on what day? _a._ on the th of february. _q._ in what bank notes did you pay it? _a._ in one of £. . _mr. serjeant best._ from what are you speaking. _a._ i have a copy of the notes. _q._ is the book here? _a._ no. _mr. gurney._ you were directed to bring the books with you,--you must go and fetch them. _benjamin lance sworn;_ _examined by mr. gurney._ _q._ on the th of february did you give that check to mr. butt? _a._ yes, i did. [_the check was handed in._] _mr. gurney._ perhaps, my lord, i had better wait till the witness brings the books; i am extremely sorry for the loss of time? _lord ellenborough._ it will be more clear. _mr. gurney._ i have a little more evidence to give under this head, if your lordship will allow me to give that now, the letter which i opened, offering mr. m'rae's discovery. _mr. joseph fearn called again;_ _examined by mr. gurney._ _q._ look at that letter, [_shewing a letter to the witness_,] do you believe that to be mr. cochrane johnstone's hand-writing? _a._ i do. _q._ do you believe that also to be mr. cochrane johnstone's hand-writing? _a._ yes, i believe that also to be the same that is dated the th of april. [_the letters were delivered in, and read as follow:_] "to the chairman of the committee, "stock exchange, no. , great cumberland-street, th april . "sir, "i have this moment received a letter, of which the enclosed is a copy, and lose no time in transmitting it to you for the information of the gentlemen composing the stock exchange committee; from the bearer of the letter, i am given to understand, that mr. m'rae, is willing to disclose the names of the principals concerned in the late hoax, on being paid the sum of £. , . to be deposited in some banker's hands, in the names of two persons, to be nominated by himself, and to be paid to him on the conviction of the offenders. i am happy to say, that there seems now a reasonable prospect of discovering the authors of the late hoax, and i cannot evince my anxious wish to promote such discovery, more than by assuring you that i am ready to contribute liberally towards the above sum of , _l._ and i rest assured, that you will eagerly avail yourselves of this opportunity, to effect the proposed discovery (an object you profess to have so much at heart) by concurring with me in such contribution. i have the honour to be, sir, your obedient humble servant, (signed) _a. cochrane johnstone_." [_the inclosure was read as follows:_] "april th. "sir, "i authorize the bearer of this note, to state to you that i am prepared to lay before the public, the names of the persons who planned and carried into effect the late hoax, practised at the stock exchange the st of february, provided you accede to the terms which my friend will lay before you. i am, sir, your obedient servant, _a. m'rae_." to the honourable, cochrane johnstone. "no. , great cumberland-street, th april . "sir, "i have to request, that you will be so good as to inform me what are the intentions of the stock exchange, on the subject of the letter which i addressed to you relative to the proposal of mr. m'rae. lord cochrane, mr. butt, and myself, are willing to subscribe , _l._ each, in aid of the , _l._ required by mr. m'rae; the bearer waits your answer, which, to prevent any mistake, i hope you will find time to commit to writing. i am, sir, your obedient servant, _a. cochrane johnstone_." to mr. charles laurence, chairman of the committee of the stock exchange. [_mr. gurney to mr. fearn._] _q._ look at the address of that letter [_shewing a letter to the witness_] is that address mr. cochrane johnstone's hand-writing? _a._ i believe it to be so. [_the letter was read as follows._] "to the committee of the stock exchange. no. , great cumberland-street, march . as the report of the stock exchange committee conveys an idea to the public, that they estimated delinquency by the enormous profits which accrued to lord cochrane, mr. butt, and myself, on the sale of stock upon the st day of february, and as the public prints have estimated the gains, some at , _l._ others at , _l._ and none under , _l._ i pledge myself to prove that the whole profits are as follow; viz. lord cochrane £. , . mr. butt , . mr. cochrane johnstone , . if the committee had acted impartially, they would have published a statement of all the purchases and sales effected by every broker on that day, with the names of the parties, that the public might have drawn their conclusions. to obviate this omission on the part of the committee, i am preparing for the press a correct statement of all sums bought for the parties before-mentioned, together with the names of those from whom the stock was procured, and to whom sold; whereby it will be seen, who were the purchasers at an early hour on the st day of february. _a. cochrane johnstone._" charles laurence, esq. chairman of the committee of the stock exchange. _mr. gurney._ i apply that to the memorandum i before read, by which it appears that he states his own gains and mr. butt's to be £. , . subtracting lord cochrane's; the whole is £. , . _edward wharmby called again;_ _examined by mr. gurney._ _q._ on what day in february did you pay that check? [_shewing it to the witness._] _a._ the th of february. _mr. serjeant best._ is that entry in the book your own hand-writing? _a._ it is. _mr. gurney._ in what bank notes did you pay it? _a._ in one of two hundred pounds, no. . _q._ what other notes? _a._ two, of one hundred pounds each. _q._ what are the numbers? _a._ , is one of them, and the other , . _q._ was there a £. .? _a._ yes, no. , . _mr. gurney._ it is not necessary to mention the other, because i do not trace it. _cross-examined by mr. serjeant best._ _q._ you do not know to whom you paid that? _a._ no, i do not. _lord ellenborough._ you paid it to the bearer of that check for £. , in discharge of that check? _a._ yes, i did. _mr. thomas parker sworn;_ _examined by mr. gurney._ _q._ you are a coal-merchant? _a._ yes. _q._ does lord cochrane deal with you? _a._ he did. _q._ did you receive from him in payment a bank note of fifty pounds. _a._ to the best of my recollection i did. _q._ on what day? _a._ i do not exactly know the day; but some time in the beginning of march i think, or probably in the end of february. _a bank clerk produced the £. . note no. , ._ _q._ did lord cochrane make that payment to you in that bank note? _a._ yes, i believe he did. _mr. serjeant best._ is that your own memorandum? _a._ yes; i write on the back of the notes, and that is my hand-writing. _benjamin lance called again;_ _examined by mr. gurney._ _q._ on the th of february, did you go to the bank to exchange any bank notes for smaller notes? _a._ i did. _q._ by whose desire did you go? _a._ mr. butt's. _q._ are those the two notes you received from him to exchange? [_shewing the witness the two notes for £. . each, produced by the bank clerk._] _a._ they are. _lord ellenborough._ have you seen those £. . notes, which you carried to the bank to exchange for smaller notes? _a._ i have this moment. _mr. gurney._ what did you receive in exchange for them? _a._ i received two hundred notes for one pound each. _q._ what did you do with those notes? _a._ i gave them to mr. butt. _cross-examined by mr. scarlett._ _q._ have you any connexion with mr. smallbone. _a._ yes, i am with mr. smallbone. _q._ do you remember at any time, on the th of february, mr. butt lending lord cochrane two hundred pounds, in order to make up a sum that he had to pay? _a._ yes. _q._ on the th of february? _a._ yes, it might be on the th of february. _q._ do you remember going with that check [_shewing it to the witness_] which was afterwards given by mr. smallbone, to get the money? _a._ yes, that check for £. . _s._ _d._ _q._ that bears date the th of february? _a._ yes. _q._ you were the person who took that to the banker's, to get the money for it? _a._ exactly so. _q._ you say you know mr. butt did lend lord cochrane two hundred pounds? _a._ so i understood; i did not see him lend it. _mr. gurney._ he does not know that it was lent? _mr. scarlett._ how do you know that it was lent? _a._ only by mr. butt saying so. _lord ellenborough._ at what time? _a._ the th of february. _lord ellenborough._ this check is dated the th? _mr. scarlett._ you received in payment for that check, two notes of £. . each? _a._ yes, i did. _q._ what did you do with those two notes of _l._ each? _a._ i gave them to lord cochrane. _q._ that was on the th of february? _a._ yes, it was. _q._ were you present when lord cochrane paid those notes back to mr. butt? _a._ i was not. _q._ though you were not present when those notes were given by him to mr. butt, do you know that those notes were in mr. butt's hands afterwards? _a._ i know of receiving them from him. _q._ though you paid them to lord cochrane upon the th, did you not afterwards receive them from mr. butt? _a._ i received the two £. . notes i have now looked at from mr. butt. _q._ it was by mr. butt's desire you changed them for small notes at the bank? _a._ yes. _q._ that you say was the th of february? _a._ yes. _q._ for mr. butt? _a._ yes. _q._ was lord cochrane in the city at that time? _a._ not that i know of. _q._ do you know on the th of february of any loan made by mr. smallbone to lord cochrane? _a._ yes, i do. _mr. gurney._ do you know that of your own knowledge, or how do you know that? _a._ i know that of my own knowledge. _mr. scarlett._ i believe you know that my lord had a certain sum to make up to pay what he owed at that time? _a._ he had. _q._ how much was that amount? _a._ i am not prepared to tell you the exact amount. _q._ was it between six and seven hundred pounds? _a._ more than that. _q._ do not you know that he was without the money in the city, to make it up at that time? _a._ he was. _q._ how much did he borrow of mr. smallbone? _a._ i cannot say exactly. _q._ was it £. .? _a._ £. . i think, was advanced by me as clerk to mr. smallbone. _lord ellenborough._. in all £. . _a._ in all £. . _q._ £. . in these bank notes? _a._ no, £. . besides these bank notes. _lord ellenborough._ the £. . is to be added to these bank notes? _mr. scarlett._ the witness was not present when mr. butt lent the £. . i was about to shew, that besides the £. . that mr. smallbone lent, lord cochrane wanted £. . more, and that he went out to get it. _lord ellenborough._ did you see the £. . lent to lord cochrane? _a._ no. _q._ how do you know it was lent? _a._ because i was told so by lord cochrane. _lord ellenborough._ then it comes to nothing? _mr. scarlett._ he knows the fact that he wanted the £. . you advanced £. . yourself? _a._ yes, i did. _lord ellenborough._ in gold or bank notes? _a._ in bank notes. _q._ in what description of bank notes? _a._ the money was lent in fact by mr. smallbone, and he made up the difference; it is not usual to pay in bank notes, and we made it up in checks; his lordship had left his money at the west end of the town. _mr. scarlett._ you advanced his lordship £. .? _a._ yes. _q._ was that all that he wanted, or did he want more? _a._ no, he wanted £. . more. _lord ellenborough._ this advance must all be in paper? _mr. scarlett._ yes, my lord, it is not material to my purpose to shew how mr. butt made this advance to him. _lord ellenborough._ if it was a loan and you rely upon it as such, you must shew in what it was? _a._ the £. . was in a check. _lord ellenborough._ then that check must be shewn. _mr. scarlett._ mr. butt was not present, was he? _a._ not that i know of. _q._ at what time lord cochrane gave these two £. . notes to mr. butt you do not know, do you? _a._ no. _q._ but it was not by lord cochrane's desire you took them to the bank. _a._ no; by mr. butt's. _mr. john bilson sworn;_ _examined by mr. gurney._ _q._ look at these two £. . notes; on the th of february; were those two notes of £. . each brought to the bank to be exchanged for one pound notes? _a._ they were entered for payment in the bank on that day. _q._ have you there the book in which your own entries are made, or those which are made by mr. northover? _a._ i have the book in which is my own hand-writing. _q._ what notes did you pay this in? _a._ one pound notes. _q._ you make the entries, and the other clerk gives over the notes? _a._ yes. _q._ have you all the numbers there? _a._ yes, i have. _mr. gurney._ i am sorry to trouble your lordship with having these numbers read; they do not happen to be in sequence. will you go over those numbers? _a._ th august, no. , . _lord ellenborough._ you had better see what you apply your proof to, otherwise he must go through the list. _mr. gurney._ i am told these clerks have examined all these notes. you have looked over all these notes found in mr. de berenger's trunk, have you not? _a._ i have not looked over them to-day; we looked over them before the grand jury. _q._ look over that parcel, and tell me whether you paid all that parcel [_handing a parcel of bank notes to the witness_.] [_the witness and mr. thomas northover examined the notes._] _a._ yes; those were paid. _q._ there are forty-nine in number? _a._ yes. _lord ellenborough._ were all those forty-nine part of the two hundred pounds that were given in exchange for the two £. . notes? _a._ they were. _a juryman._ what were the numbers of the two £. . notes? _a._ no. , and no. , . _mr. hilary miller sworn;_ _examined by mr. gurney._ _q._ you are a clerk in the bank? _a._ yes. _q._ have you forty-seven one pound notes that have come into the bank? _a._ i have fifty-seven [_the witness produces them_.] _mr. gurney._ (_to bilson and northover_) look and see whether those fifty-seven are also part of the same payment? _miller._ i believe that part of those notes were received at another period. _mr. northover._ they do not appear to arise from this transaction. _mr. gurney._ i will state to your lordship the effect of this; perhaps it is hardly worth pursuing; they came into the bank from various quarters, and mr. de berenger's name is upon them, but not in his hand-writing. _mr. bilson._ here are some of them in this account. _lord ellenborough._ they do not appear to be evidence. _mr. gurney._ then i will not pursue that. _thomas christmas sworn;_ _examined by mr. gurney._ _q._ were you clerk to mr. fearn, in february last? _a._ i was. _q._ do you recollect being sent on the th of february to change a note for two hundred pounds? _a._ yes. _q._ by whom were you sent? _a._ by mr. fearn. _q._ where did you go to change that note? _a._ to messrs. bond & pattesall. _q._ look at that bank note (no. ), is that the bank note which you changed? _a._ yes. _q._ what did you receive in exchange for it? _a._ two notes of £. . each. _q._ did you take those two notes of £. . each to the bank? _a._ yes. _q._ for what did you change them there? _a._ two hundred notes of one pound each. _q._ what did you do with those two hundred notes of one pound each? _a._ i gave them to mr. fearn. _q._ in whose presence? _a._ two or three gentlemen in his office. _q._ who were those gentlemen? _a._ i do not recollect. _q._ were mr. butt or mr. cochrane johnstone there then? _a._ no, they were neither of them there then. _q._ did you see what mr. fearn did with those notes? _a._ no, i did not. _q._ did you put your name upon the two £. . notes before you gave them into the bank? _a._ i put mr. fearn's name upon them. [_mr. miller produced two £. . notes._] _q._ are those the two? _a._ yes they are. _q._ what are their numbers? _a._ , and , . _mr. joseph fearn called again;_ _examined by mr. gurney._ _q._ on the th of february did you receive from christmas two hundred notes of one pound each? _a._ yes. _q._ to whom did you give those notes? _a._ to mr. butt. _q._ did you see what mr. butt did with them? _a._ he gave them to mr. cochrane johnstone. _mr. john bilson and mr. thomas northover called again._ _mr. gurney._ did you on the th of february pay a £. . bank note no. , ? _mr. bilson._ we paid to fearn on that day two hundred one pound notes for two notes of £. . each. _q._ are those the two notes for which you paid them, [_shewing them to the witness_]? _a._ those are the two notes. _a juryman._ what are the numbers? _a._ , , the th of february , and , of the same date. _mr. gurney._ i am now going to put into the hands of the witnesses sixty-seven notes found in mr. de berenger's writing desk, for him to see whether they are not part of those he paid for those two £. . notes? [_the witnesses compared them._] _mr. bilson._ these are part of the notes we paid to fearn on the th of february. _lord ellenborough._ the whole sixty-seven? _a._ yes. _mr. joseph fearn;_ _cross-examined by mr. brougham._ _q._ when christmas brought back these two hundred one pound notes from the bank, you say they were given to mr. butt? _a._ yes. _q._ and you say mr. butt afterwards gave them to mr. cochrane johnstone? _a._ yes. _q._ did you see him give them? _a._ yes. _q._ did you see mr. butt give him the other two hundred one pound notes he got from lance? _a._ no. _q._ you were not present then? _a._ no, i was not. _mr. adolphus._ we wish mr. wood now to produce out of the desk a watch, which he found in the possession of mr. de berenger. [_the witness produced two watches._] _q._ were they both in the box when you found it? _a._ they were. _mr. bishop bramley sworn;_ _examined by mr. adolphus._ _q._ what are you? _a._ a watchmaker and silversmith. _q._ do you live at hull? _a._ yes. _q._ look at those watches that lie there; did you sell those watches? _a._ no, neither of those. _q._ did you sell a watch to the gentleman who sits there? _a._ yes. _q._ for how much money? _a._ twenty-nine guineas and a half, £ . _s._ _d._ _q._ when was that? _a._ the th of march. _q._ what name did he pass by? _a._ we did not hear any name. _q._ how did he pay you? _a._ in one pound bank of england notes. _q._ did you write any name upon them? _a._ i put my own initials upon them. _q._ so that you will know them again if they are produced? _a._ yes. [_mr. miller produced some bank notes._] _mr. adolphus (to bramley.)_ look at those, and see whether those are part of what you received? _a._ all these notes we took of the gentleman we sold the watch to, on the th of march. _q._ and that is the gentleman who sits there? (_pointing to de berenger._) _a._ yes. _lord ellenborough._ what mark have you put upon them to know them again? _a._ my own initials and the dates; it is written at the top end of the note. _q._ how are you enabled to say that those seven notes are what you received from the person who bought that watch? _a._ we took no other bank of england notes on that day. _q._ you marked them at the time you received them? _a._ yes, i received twenty in the forenoon, and the other eleven in the afternoon, and i marked them and paid them away the same afternoon. _cross-examined by mr. park._ _q._ i understand you to say neither of those watches found in the possession of mr. de berenger is the watch you sold? _a._ neither of them. _q._ you wrote upon all the notes? _a._ yes. _q._ those are the only seven you have seen since? _a._ yes. _mr. gurney._ you paid them all away? _a._ we did. _john bilson and thomas northover called again._ _mr. gurney._ have the goodness to look over your book, and see whether those seven were part of the two hundred that were paid to fearn? [_the witnesses examined them._] _mr. bilson._ those seven notes were part of the property paid to fearn on the th of february. _benjamin lance called again;_ _examined by mr. gurney._ _q._ on the th of february, did you give mr. butt a check on prescott & company, for £. . _s._ _d._? _a._ on the th of february i did. _q._ is that the check? [_shewing it to the witness._] _a._ that is the check. _john isherwood sworn;_ _examined by mr. gurney._ _q._ are you clerk to prescott & company? _a._ i am. _q._ look at that check, did you pay that? _a._ i did. _q._ on what day? _a._ the date of it the th of february, i think. _mr. park._ that is an entry in your own hand-writing. _a._ it is. _mr. gurney._ did you pay a _l._ note? _a._ yes. _q._ what number? _a._ no. , . _q._ did you pay also a forty pound note? _a._ yes, no. , . _q._ look at that, is that the £. . note? _a._ yes, that is the note. _mr. gurney._ mr. miller, will you produce the £. . note? [_mr. miller produced it, and it was shewn to the witness._] _a._ this is the note. _mr. john seeks sworn;_ _examined by mr. gurney._ _q._ look at that cancelled bank note for £. . did you receive that bank note in payment from any person? _a._ i gave change for it. _q._ on what day? _a._ i cannot exactly recollect. _q._ about when; have you any minute on the back of it? _a._ here are some letters here that i know it by. _q._ to whom did you give change for it? _a._ mr. de berenger's servant, smith. _q._ the day you cannot exactly fix? _a._ i cannot. _mr. serjeant best._ i submit to your lordship, that is no evidence, until they call smith. _mr. gurney._ on referring to mr. de berenger's memorandum book, i find "w. s. £. ." which i consider as connecting itself with this. _mr. park._ that book is not proved. _mr. gurney._ it is proved by being found in the trunk. _mr. park._ i object to that book being read; that is not the book which was before proved; as to that, mr. lavie gave some evidence of the hand-writing before the entry was read. _mr. germain lavie called again;_ _examined by mr. gurney._ _q._ do you believe that to be the hand-writing of mr. de berenger? _a._ yes i do, most certainly. _cross-examined by mr. park._ _q._ i observe this is pencil writing you have been speaking to; did you ever see any writing of this person in pencil before? _a._ no, never. _q._ there is no difference in a man's writing with a pencil and with a pen? _a._ i conceive that to be written by mr. de berenger. _q._ it is exactly like the character of that letter which has been given in evidence upon your testimony? _a._ yes, it is the same sort of writing. _mr. serjeant best._ i submit to your lordship, still i am not removed from my objection. there is first a check of £. . _s._ _d._; then an attempt is made to trace £. . of that into the hands of mr. de berenger; the way in which that is attempted is, that a person says he gave change for that note of £. .;--beyond that, they have produced a pencil memorandum, proved to be in the writing of mr. de berenger, at least there is some evidence of that; that pencil memorandum is merely this, not that a particular bank note; not that the note which came into the hand of the witness, and for which he gave change, but that a bank note of £. . was paid to w. s. it does not appear that it was that bank note, and this, i submit, is no evidence in a criminal case. _mr. gurney._ i submit to your lordship it is evidence, _valeat quantum_, it does not prove that smith received that bank note from de berenger, but that it came from de berenger's servant; i shall give no other evidence to bring it home to de berenger, and i submit that it is admissible evidence, as that which is proved to come so near as the child, the wife, or the servant. _lord ellenborough._ i think it is not evidence; it does not get the length of william smith; but even if it were to be taken to refer to william smith, it does not connect it with this bank note, or any other means of payment. i cannot translate "w. s." into "william smith my servant," and "£. ." into "this £. . bank note." you do not call william smith. _mr. gurney._ no, certainly not, my lord,--i shall leave that to my learned friends. _mr. benjamin bray sworn;_ _examined by mr. gurney._ _q._ where do you live? _a._ at sunderland. _q._ will you look at this £. . note, [_shewing the witness the note just produced_,] did you receive that £. . note from any one? _a._ from the waiter of the bridge inn at sunderland. _q._ did you see mr. de berenger about the time of the receipt of it? _a._ i had seen him often prior to that. _q._ at sunderland? _a._ yes. _q._ a waiter brought it to you? _a._ yes, with major burne's compliments. _q._ he brought you some message with it? _a._ yes, i gave him six £. . notes for it, and ten £. . notes. _q._ bank of england notes? _a._ no, of the durham bank. _q._ did any thing pass between you and mr. de berenger afterwards, on the subject of that note? _a._ the waiter returned in a few minutes afterwards. _q._ did any thing pass afterwards between you and mr. de berenger, on the subject of that note? _a._ yes, he came shortly afterwards to take his leave of me. _lord ellenborough._ where did he come to? _a._ to my house. _q._ what shop do you keep? _a._ i am a druggist and agent to the durham bank. _mr. gurney._ how long had mr. de berenger been at sunderland? _a._ i had known him there from the th to the st of march. i apologized for not being able to send more bank of england paper in exchange for the durham bank notes; the waiter having been to request that i would send him bank of england paper, i gave him a message to mr. de berenger. _q._ you made him an apology for not having sent him more bank paper in exchange? _a._ yes. _q._ in exchange for the note you had at first received; for that note? _a._ yes. _q._ what did mr. de berenger say, on your making the apology? _a._ i apologized for not having sent him more bank of england paper, and he acknowledged having received the whole of the notes i had sent him from the waiter. _q._ by what name did mr. de berenger go there. _a._ major burne; he gave me his name. _q._ is that the gentleman you have been speaking of? (_pointing to de berenger._) _a._ yes. _cross-examined by mr. richardson._ _q._ how do you know that £. note to be the note you received? _a._ by a copy that i made at the time. _q._ have you got that copy with you? _a._ this is a copy of my waste book--the waste book is at sunderland. _q._ you identify it by means of the copy which you have made from your waste-book, which book you have left at sunderland. _a._ yes; and also from my initials on the back of the note. _q._ made at the time? _a._ a day or two afterwards. _lord ellenborough._ before you parted with it? _a._ yes. _mr. richardson._ you are the agent of the durham bank? _a._ yes. _q._ you have a great many notes passing through your hands? _a._ yes. _lord ellenborough._ are you sure that when you made that memorandum, you had perfectly in your recollection from whom you took that note? _a._ yes, perfectly. _mr. richardson._ you did not keep this distinct from your other notes? _a._ no. _q._ you mixed it with your other notes? _a._ yes. _q._ you marked it several days afterwards? _a._ i marked it between the st of march and the th of april, when i remitted it. _q._ you put your name upon every bank note that passes through your hands? _a._ no, i do not. _q._ why did you put your name upon this? _a._ i cannot give a satisfactory answer why. _q._ do you generally put your initials on notes that pass through your hands, or not? _a._ no, i do not. _q._ how came you to do so in this particular case? _a._ i have before answered that i cannot give a satisfactory reason. _q._ at sunderland, which is a place of great business, do not a large number of bank notes pass through your hands? _a._ yes, there do of course. _lord ellenborough._ did the transaction of your sending durham notes, and his objecting to not having more bank notes, fix the circumstance of the £. . note more strongly in your memory? _a._ i have not had another £. . note since that. _q._ nor had you at the time? _a._ no, i had not. _q._ nor since? _a._ no. _mr. gurney._ the only remaining head of evidence that i have to trouble your lordship with, is with respect to a check for £. . _s._ paid by mr. fearn to mr. butt, and the produce of that. _mr. pattesall sworn;_ _examined by mr. gurney._ _q._ are you a partner in the house of bond & company? _a._ i am. _q._ look at that check of mr. fearn's, did you pay that? _a._ i did not. _q._ who did pay it? _a._ mr. evans, a clerk of ours. _q._ is mr. evans here? _a._ upon my word i cannot tell. _mr. gurney._ he has been expressly desired to be in attendance. _lord ellenborough._ then call him upon his subpoena if he does not appear. _mr. gurney._ just look and see whether the entry is evans's hand-writing. _a._ it is evans's hand-writing. _thomas evans was called on his subpoena, and did not appear._ _lord ellenborough._ this entry then will be of no use to you. _mr. gurney._ no, my lord; it was mentioned that there were two napoleons in the letter case: mr. wood has those two napoleons to produce. [_mr. wood produced two napoleons._] _mr. gurney._ this, my lord, is the evidence on the part of the prosecution. * * * * * _mr. serjeant best._ i wish to apprize your lordship that i think it will be necessary for the defendants to call witnesses. _lord ellenborough._ i should wish to hear your opening, and to get into the defendants case, if i can; there are several gentlemen attending as witnesses, who, i find cannot, without the greatest public inconvenience, attend to-morrow. _mr. park._. the difficulty we feel, i am sure your lordship will feel as strongly as we do the fatigue, owing to the length of our attendance here; but we will proceed if your lordship desires it. _lord ellenborough._ i would wish to get into the case, so as to have the examination of several witnesses, upon whom the public business of certain offices depend, gone through, if possible. _mr. park._ i have undergone very great fatigue, which i am able to bear; but i would submit to your lordship the hardship upon parties who are charged with so very serious an offence as this, if their case is heard at this late hour; and then a fresh day is given to my learned friend to reply. _lord ellenborough._ it will not be a fresh day when you will be here by nine o'clock, and the sun will be up almost before we can adjourn; i will sit through it if you require it, rather than that. * * * * * _mr. alley._ on the part of m'rae, i shall not trouble your lordship with any witnesses or observations. * * * * * mr. serjeant best. may it please your lordship, gentlemen of the jury, i assure you i am extremely sorry on my own account, and still more sorry on your account, that it will be necessary for me, if i am able to do it, to take up a considerable portion more of your time, in the discussion of this most important question; a question, certainly, of great importance to the public; a question, of great importance to the three individuals whose interests are committed to my charge; for, gentlemen, upon the issue of this question, with reference to them, depends whether they are to hold the situation in society which they have hitherto held, or whether they are to be completely degraded and ruined. gentlemen, allusions in the course of the day have been made to that which passes at the old bailey; no sentence that can be passed there, can be felt more by the persons on whom it is passed, than a verdict of guilty will be felt by these three persons. gentlemen, from the attention i have observed every one of you giving to the evidence, and from the accuracy of the notes that have been taken by the noble and learned judge, i have, at this late hour, this consolation left to me, that whatever i may omit, you will supply; whatever i shall not be able to impress upon you, in the manner it ought to be impressed upon you, will be brought to your consideration by his lordship, and that that explanation which i shall feel myself unable to give, he will be in a situation to give; and with this hope, i proceed to call your attention to the case of these gentlemen:--my lord cochrane, mr. cochrane johnstone, and mr. butt; the interests of the other defendants being committed to much abler hands. gentlemen, there are very few of the introductory observations that were made to you by my learned friend, which i am in a condition, or feel any disposition to dispute. i by no means dispute, that what is charged in this indictment is not an offence of very considerable magnitude; if i was satisfied that it was not an offence which the law of the country reaches, i protest to you, that i would not take any objection upon that score; because i am quite convinced that acquittal, upon such a ground as that, would be an acquittal that would not answer the purpose of the respectable gentlemen that i represent before you. gentlemen, i have observed some of my learned friends asking questions, which seemed calculated to obtain answers on which some legal objection might be founded. i hope you will recollect, that i have never asked any such questions; on the contrary, i have avoided looking at the indictment, lest i should see any thing that should force an objection upon me, and prevent this case from being decided upon its merits. gentlemen, i certainly do admit, that it is a crime, and a crime of a great magnitude, for any person, by means of the circulation of false news, to attempt to raise the price of the public funds; in consequence of which, individuals who are fair purchasers of such funds, are compelled to pay more than the stock they purchase is fairly worth. i hope, whoever were the authors of this, which has been called, and improperly called, a hoax, will suffer for their offence; but when we are reminded, that certain persons have suffered by it, i must say, that the fair purchasers who have suffered, are but few in comparison to those who are objects of no compassion, namely, the gamblers who attended at the stock exchange upon this occasion. gentlemen, i admit also, that which has been stated by my learned friends, that it is not necessary, for the purpose of bringing home the crime of conspiracy to any individual who may be charged with it, that you should call a person who was present at any of the consultations--shew the casting of the different parts of those who were to act in the drama, and point out distinctly who those were who were to perform, and how afterwards they have performed these parts. i admit that all this is not necessary to be proved: conspiracy, like every other offence, may be brought home by circumstantial proof. indeed, circumstantial proof is, in many cases, more satisfactory than that which is direct and positive, because it is free from the suspicion of falsehood. but i deny, upon this occasion, that there are any circumstances that bring home the crime of conspiracy to any of the three persons whom i represent. all that is proved may be true, and yet the defendants may be innocent. the circumstantial evidence that alone can warrant conviction, is the proof of such facts as could not have happened had the accused been innocent. gentlemen, whether mr. de berenger be the colonel du bourg who pretended to bring the news from france, or not, it is not for me to discuss; i shall leave that question to my learned friend mr. park, who is counsel for mr. de berenger, and who, i hope, will be able to satisfy you that mr. de berenger is not that colonel du bourg; if he is not that colonel du bourg, then there is no evidence against either of the parties i represent. but admitting, for the purpose of my presenting the case to you which i am called upon to support, that de berenger is that du bourg, still it is another question, whether either of these defendants were connected with de berenger; and i do, notwithstanding what has been stated to you by my learned friend, that he was perfectly certain that he should bring home the guilt charged by this indictment to all the defendants, submit most confidently, that there is no evidence against either of my clients. gentlemen, it is extremely difficult, amidst such a mass of evidence as has been laid before you, to bring one's attention, or to call your attention immediately to the evidence that applied to any particular person. i will take the three cases in the order in which they stand upon this indictment; and the first of those three for whom i am concerned, is my lord cochrane. now, gentlemen, let us examine the evidence that is offered to you, to prove that he is connected with this conspiracy. it consists in this, that my lord cochrane did, on the st of february, sell £. , omnium; and further, that mr. de berenger was, on the morning of the st of february, at the house of lord cochrane. gentlemen, as far as i can collect, from the attention i have been able to give to the evidence, i have stated the utmost effect of the evidence against my lord cochrane; for, gentlemen, though it was suggested by my learned friend, mr. gurney, that he should trace some of the notes which were found in the desk of mr. de berenger into the hands of my lord cochrane, i beg to state, that there is not one single note traced into the hands of my lord cochrane. i admit that there are notes found in the chest of de berenger, traced into the hands of the other two defendants; but i believe i shall be able, by and by, satisfactorily to shew you how these notes came from the hands of one of the defendants into the hands of de berenger, and to prove that they came into the hands of de berenger, under circumstances altogether unconnected with that which is the subject of your enquiry; but i am, for the present, only considering the case of lord cochrane; and i would beg the favour of his lordship now to refer to his notes, and i am persuaded his lordship will go along with me in the observations i am making, that there is no evidence whatever to bring home any one of the notes to my lord cochrane. gentlemen, the only part of the evidence which has the least tendency to connect my lord cochrane, by means of the notes, with mr. de berenger, is the evidence that was given by a person of the name of lance; there is not one other witness that attempts to state, that a single note traced from the hands of lord cochrane, ever was found in the hands of mr. de berenger; now, if you will have the goodness to attend to lance's evidence, you will find that there were for a time put into the hands of lord cochrane two £. notes, which were afterwards found at the bank, and in exchange for which two hundred one pound notes were given to the person changing them, and that a considerable quantity of those £. notes have certainly been proved to be found in the chest of mr. de berenger; but permit me to state, that though those two £. notes, by which one hundred £. notes were afterwards produced, are for a short space of time shewn to be in the hands of lord cochrane, that the same witness tells you, that those £. notes were got back from my lord cochrane again, before they were exchanged at the bank; for he tells you, that he carried those two £. notes to the bank _for mr. butt_. gentlemen, my learned friend, who cross-examined mr. lance, certainly could not get from him that he was present at the time when my lord cochrane paid those two notes into the hands of mr. butt; but it is perfectly clear, from that which he subsequently stated, that at some period before they found their way into the bank, and before they can furnish any means of proof against the parties, they must have been returned to butt's; these notes might have been in the hands of any one of you, gentlemen; but the question is, on whose account the two hundred £. notes were received from the bank, for it is these small notes which can alone connect the party with mr. de berenger. now, i say, mr. lance, in a part of his evidence, stated, that though he was not present at the time lord cochrane returned the two £. notes to butt, yet that he afterwards received those notes, not from the hands of lord cochrane, but from the hands of mr. butt; for mr. butt he went to the bank; for mr. butt he got the two hundred £. notes, and those two hundred £. notes he delivered back into the hands of mr. butt. gentlemen, i am sure therefore, that if i have made myself understood upon this part of the case, i have completely released lord cochrane from the effect of this evidence, for though the two large notes were once in his hands, these notes were never in the hands of de berenger. the notes found on him were the small notes given in exchange for them at the bank, and these were given to mr. butt, and not lord cochrane. it is perfectly clear, therefore, that though these had been in the hands of lord cochrane, from the money transactions taking place between them every day, it was mr. butt that was the possessor of those notes, at the time the £. notes were obtained for them; i am satisfied, therefore, you will see that this evidence does not connect mr. de berenger with lord cochrane. i am quite confident, therefore, that i am right, when i state to you, that my learned friend's attempt to draw an unfavourable inference from the circumstance of de berenger being in possession of notes which once belonged to lord cochrane, is completely answered; and then i state again, that the only points which remain for your consideration, with respect to lord cochrane, are, first; the large sale of stock on the st of february; and, next, de berenger being at his house on that day; with respect to the last circumstance, that is proved only by lord cochrane's affidavit, and i think i shall shew that lord cochrane, in that affidavit, completely explains that circumstance. gentlemen, with respect to the large sale on the st of february, i do not think the committee of the stock exchange have conducted themselves quite fairly in a criminal case; because, in a criminal case, it is not fit to take up a piece of evidence just exactly at that point where it will suit the purpose of those who offer it, keeping back other evidence which they know is extremely important, which they must know is calculated to do away the effect of that which they offer. now, gentlemen, for the purpose of implicating lord cochrane, the stock exchange have instructed my learned friend, mr. gurney, to state, and mr. gurney did, in pursuance of his instructions, state most expressly, that lord cochrane began his stock exchange speculations about one week before the st of february; and, till i cross-examined mr. fearn, you must necessarily have understood, as well from the statement of counsel, as from the evidence that has been offered, that lord cochrane, about six or seven days only antecedent to the st of february, had purchased the whole of the £. , that was sold out on that day; that his lordship had never speculated in the funds before, and, therefore, that all his purchases must have been made in order that he might have so much stock to sell at this particular time. but, gentlemen, it turns out that lord cochrane had been deeply speculating in the stock exchange for several months before, and so the inference, that he purchased this stock with a view to the event that happened on the st of february, is rebutted; that lord cochrane did not first begin to buy this £. , merely for the purpose of selling on the st of february, is most clearly proved by the testimony of fearn and of hichens, who say, that so early as the month of november preceding lord cochrane had bought very largely, and had sold very largely; and that he continued to buy and to sell, down to the very period of the last sale taking place; it is impossible, therefore, when the evidence is laid before you, that you can collect, merely from the circumstance of his selling so large a sum as £. , on the st of february, that he was guilty of a conspiracy to occasion a rise in the funds on that day. the witness did not come prepared to state to you, what had been the extent of the sales made by lord cochrane on antecedent days; but when he states that he sold largely, (i think i may venture to say, that he sold nearly as much on previous days as on this occasion); you will find therefore nothing to distinguish the conduct of lord cochrane on the st of february, from that which had been his conduct on many days precedent. gentlemen, i trust therefore, that in a criminal case, you will think that the inference of criminality which is supposed to arise merely from the circumstance of the sale of this large quantity of stock, is rebutted by the fact i have now brought under your consideration; but you will have the goodness also to bear in mind another circumstance. i did expect, when i heard the case opened with so much confidence against lord cochrane, that you would hear of some particular directions being given to sell on that day; but, gentlemen, how does that fact turn out; no particular directions are given to sell on that day, but lord cochrane's general directions, from the first moment when he became a speculator in stock, were, that whenever any event should happen by which the stocks should be raised, one per cent. the broker was not to wait for particular directions, but to sell; and this large sale of £. , , from whence the inference is drawn, that lord cochrane necessarily knew of the conspiracy which had taken place, was made under these general directions. it is also to be observed, that lord cochrane was never present in the city a single hour during the st; there is no evidence given that he was there; on the contrary, all the witnesses that have been examined, have told you they did not see him there; all the stock was therefore sold on that day, without any interference on his part; and as it appears beyond all question, a very considerable part of the stock of all these gentlemen was sold before any of them came into the city, and without any particular directions on the subject of the sale of it. gentlemen, the sale of the stock which lord cochrane possessed, considering the circumstances under which he became possessed of it, and the circumstances under which it was sold, furnishes, i submit to you, no proof that he was privy to what they have called the hoax. i beg pardon of the noble and learned judge, for using this term, after the observation that his lordship has made upon it. i did not use it for the purpose of treating with levity the crime contained in the indictment; but it has been so frequently applied to this crime, both before and since the prosecution was instituted, that it is difficult in the hurry of speech to avoid using it. gentlemen, another circumstance has transpired, which i think furnishes a strong observation in favour of all my clients; namely, the practice of selling both stock and omnium, which the seller is not at the time of such sale in possession of. if lord cochrane had been privy to the fraud, would he have contented himself with merely selling the stock that he had previously purchased. would you not have found him selling to every buyer that offered (and on the st of february there was no scarcity of buyers at the advanced prices) stock and scrip in any quantity; if he had been privy to the fraud, he must have known that the bubble would soon burst, that the funds would fall back to their former prices, and that by every sale that he so made, he must be a great gainer; yet he is not found selling the value of a shilling in this manner; nothing is sold but what had been previously bought, and that sold under general directions given to the broker previous to the day of sale, and previous to the time when the conspiracy could have been conceived. if his lordship had been one of the conspirators, he must have been found to have made many more thousands of pounds by the speculations of this day, than he either is or can be proved to have made hundreds. avarice, always insatiable, which had in this case impelled the defendant to hazard every thing that was dear and valuable to him in life, stops short in the hot pursuit of its object, at the very moment when the most abundant means of gratification are brought within its reach. does not then the inference of innocence, arising from what he did not sell, although he might have sold much, outweigh the inference of guilt, arising from what he actually did sell; what he did on this day, it is not only possible but probable that he might have done, and yet be innocent of the conspiracy with which he is charged; what he did not do, he could not have omitted to do, if he had been guilty. my learned friend, mr. gurney, has told you, that the circumstance of his selling out as he did, proves his privity to the conspiracy. men who were unconscious of the risk, says my learned friend, did not sell on the first rise in the market, but held their stock in the expectation of gaining still higher prices; but the defendant, knowing that the falsehood of the news would soon be discovered, and that its effect on the funds must be of very short duration, sells his whole stock on the opening of the market. i should have felt the force of this argument, had you found lord cochrane on the stock exchange, pressing his brokers to complete their sales; but when you find that his lordship was not present, and gave no directions for immediate sales, but that his stock was sold under orders given before the fraud could have been thought of, i trust that you will find it not worthy of much attention. if, however, you are to decide on the guilt or innocence of lord cochrane from the transactions of the st of february, you will look at the whole of his conduct, and when pressed to find that the circumstance of his selling is proof of his guilt, you will say, that the circumstance of his not selling more than he did, is a still stronger proof of his innocence. my learned friend will have an opportunity in his reply, of accounting why his lordship and his supposed co-conspirators did not sell more; and i think he will find it a task that will transcend even his powers, to account for it in a manner compatible with their guilt. gentlemen, the only remaining point relative to lord cochrane is this; that on the morning of the st of february mr. de berenger went to the house of his lordship. gentlemen, it is material for your consideration how the stock exchange got the knowledge of that fact. gentlemen, but for my lord cochrane, the stock exchange never would have known of the existence of any such person as de berenger; but for my lord cochrane, it is impossible that the stock exchange could have instituted this prosecution, because it was by lord cochrane's affidavit only that the name of de berenger was given to them. i am aware my learned friend stated to you, that the stock exchange had some reason to suspect that a mr. de berenger had been engaged in it before this affidavit was published; but, gentlemen, my learned friend has offered no proof of the grounds of such suspicion; the only proof that he has offered upon the subject, is the proof which my lord cochrane's affidavit furnished him with. now, gentlemen, i have a right to say, that the mere circumstance of lord cochrane's introducing the name of mr. de berenger for the first time, in that affidavit, is of itself sufficient to repel the inference arising from the circumstance of de berenger's going to his house. but, gentlemen, i am sure you will bear in mind the very important evidence that was given by mr. wright upon that subject. my learned friend may repeat again the observation with which he introduced this prosecution, that those who are wicked are not always wise, and that it so happens frequently, that men do acts without considering the consequences of those acts, and that it is in consequence of this want of consideration that criminality is often brought home to delinquents; but it appears from mr. wright's testimony, that lord cochrane was fully aware of the consequence of the affidavit that he was about to publish. mr. wright, the printer, who was called for the purpose of shewing that this affidavit had been printed by lord cochrane, tells you, that when he received the instructions from lord cochrane to print the affidavit, lord cochrane said this, _i have no reason to think de berenger was the man, but if he was, i have given the stock exchange a clue to him_; so that you see, at the very moment that his lordship published that affidavit, he was perfectly aware of the consequence of what he was about; and he must know, that if the stock exchange could not find out who this man was who came to his house, it would be impossible for them to reach his lordship. he must know that they were likely to remain for ever ignorant who that person was. he comes forward and tells them who that person was, recollecting at the time he makes the disclosure, that if that person be guilty, he would by the act he was about to do deliver him over to their justice. what must those persons think of lord cochrane? who after this can consider him as implicated in the guilt of this conspiracy? the guilty men knowingly and advisedly point out to their prosecutors, the only course by which they can be hunted down; such guilty men must be men of too weak understandings to be answerable for their conduct either to god or their country. in the declaration that lord cochrane made to mr. wright, he did that justice to mr. de berenger which his knowledge of that gentleman compelled him to do; he said he did not think him guilty; but if he was guilty, he was about to give him up to the punishment that he justly merited. gentlemen, there is more of simplicity, more of fair dealing in this behaviour, than was ever found connected with so much guilt as is imputed by the indictment that you are trying, to this defendant. gentlemen, let us look at the affidavit itself; my learned friend indulged himself with making upon it a great number of very harsh observations. it is easy to raise suspicions; but suspicion and conviction are different things. recollect, that before you can convict lord cochrane, you must be convinced that this affidavit is altogether false. gentlemen, it might possibly be said, that that noble lord, not reflecting on the consequences of such an offence as that imputed to him by this indictment, might be engaged in it; but you must impute to lord cochrane a much more serious offence, one for which want of consideration will be no excuse, after that affidavit has been laid before you, or it is impossible for you to say that he can be convicted of this conspiracy; for it will not be forgotten by you, that at the close of that affidavit, my lord cochrane does, in the most solemn manner protest, that he is altogether innocent of the offence which is imputed to him by the stock exchange committee. gentlemen, i cannot put that better to you than in the words of the affidavit itself; after stating every thing that had taken place with respect to de berenger coming to his house, his lordship says, "further, i do solemnly depose, that i had no connexion or dealing with any one, save the above mentioned, and that i did not directly or indirectly, by myself, or by any other, take or procure any office or apartment for any broker or other person for the transaction of stock affairs." gentlemen, it is said that this affidavit has only been sworn before a magistrate; a lawyer, like my learned friend, knows that upon an affidavit so sworn a party cannot be indicted for perjury; but my learned friend will have a great difficulty in convincing you, that lord cochrane, whose education has been different from that of my learned friend, knew that he was not liable to that punishment. i am persuaded that he conceived himself as completely amenable to the guilt of perjury, as if that oath had been taken in a court of justice. but is the temporal danger that awaits an act of this sort, the only thing that could prevent a person of the character and situation in life of this noble person, from making such an affidavit. what reason has my learned friend given you to-day? what reason can you collect from the former life of this noble person, (for he has been before you, and has lived in the view of the public), that can induce you to believe that he is so completely lost to all sense of that which is right and wrong, to all sense of what is due to himself, as to go before a magistrate to make an affidavit, in which he must know he was deposing to that, which at the time he was making the deposition was absolutely false? gentlemen, i ask you what evidence you have upon which you are to find this noble person, not only guilty of a foul conspiracy, but also of the still higher crime of wilful and corrupt perjury? gentlemen, i am quite satisfied, you will not feel that there is any evidence in this cause, which can weigh down the testimony which my learned friend has thought proper to put in. i say the oath of lord cochrane makes the evidence offered on the other side kick the beam; that there is nothing to put in competition with the affidavit which my learned friend has himself given in evidence. but, gentlemen, let us look at the narrative given in the affidavit, and see whether there is any thing improbable in it. lord cochrane states, that he had gone out on the morning of the st, with his uncle, not to go into the city, but to go to a man of the name of king, who was engaged in making for him a lamp, for which he was about to obtain a patent; is that true, or is it false? it is true, according to all the evidence in the cause; there is no doubt that lord cochrane did set out with mr. cochrane johnstone, for the purpose of going towards the city. did he go into the city? no one witness has shewn that he did. on the contrary, i think it may be taken as admitted, that he never was in the city on that day. here then this part of the affidavit is most unquestionably confirmed. he states, that having proceeded to the house of this man, who was assisting him in preparing this lamp, he received a note in which he was desired to come home; then he states, he was informed that the person who brought the note was in the dress of an officer; and lord cochrane goes on to state, that imagining it was some officer who had just come from spain, (and probably you may know, gentlemen, that lord cochrane, who is himself serving in the navy, has a very gallant brother at this time serving in the army in spain, and with respect to whom, i believe i shall shew you in evidence, that he was exceedingly ill, and was considered to be in very great danger), he immediately connected that officer with his brother in spain, and he proceeded in a hackney coach to his house, hoping for some account of his brother in spain. gentlemen, it appears that the officer turned out to be mr. de berenger. lord cochrane then gives you an account of what mr. de berenger represented to be his object in coming to his lordship's house; he says that mr. de berenger had previously made applications to him to take him out to america, for the purpose of exercising his men in small arms, and that mr. de berenger renewed his application that morning to him to take him in the tonnant, the ship to the command of which his lordship was then appointed, and in which he was about to sail to america. gentlemen, is this true? we have the evidence of mr. murray, a gentleman called on the part of the prosecution; we have the evidence of another person, of whom i cannot speak in the same terms as i do of mr. murray, for i shall by and by shew you that he is entitled to no credit, who certainly, as far as he speaks in favour of lord cochrane, is entitled to consideration; but where he speaks against lord cochrane, as i shall shew you, he is entitled to no consideration, for that he has vowed he will bring on the ruin of lord cochrane, in consequence of the refusal of a loan of money. we have it in evidence, that mr. de berenger did expect to go to america, under the protection of admiral cochrane and lord cochrane; the narration in the affidavit is thus confirmed by this evidence; the affidavit then goes on to state, that mr. de berenger told lord cochrane, that he had left the king's bench, and come to lord cochrane for the purpose of going to america. that he, lord cochrane, stated to de berenger, that it was impossible for his lordship to take him, that his ward room was full; and further, that de berenger being a foreigner, his lordship could not take him without the consent of his majesty's government; that he might go on board ship at portsmouth; but in the meantime he must get the permission of his majesty's government, upon which his lordship says, de berenger said he would go to the noble lord, whom i have the honour to see in court, to get that permission; his affidavit then states, that de berenger said to his lordship, i must take a great liberty with you, for it is impossible i can go to the first lord of the admiralty in the dress in which i now am; upon which he, lord cochrane, not suspecting that mr. de berenger had been making an improper use of the dress he had on, or his views in wishing to change it, furnished him with a coat and hat. here my learned friend, mr. gurney, makes an observation which i am sure he will be exceedingly sorry for having made; because he would not intentionally, in a criminal case, prejudice the case of the defendant by any argument that is not borne out by the facts of the case; he says, did lord cochrane think it a right thing for his lordship to do, to furnish de berenger with the means of escaping from his creditors? gentlemen, there was no such thing thought of at the time, as the escaping from the king's bench prison; the cloaths were to enable de berenger to go to the admiralty, and to lord yarmouth; and it was for the purpose of appearing before lord yarmouth and lord melville, that this change of dress was asked for, and not for the purpose of escaping out of the kingdom, and avoiding his creditors; whether lord cochrane was wise or not in acceding to this request, it is not for us to decide to-day; but i am sure you will feel it was straining the english law too much, to say of a good-tempered english sailor, that he is guilty of a conspiracy, because he yields to a request, to which a person more hacknied in the tricks practised on them, would not have acceded. if my learned friend could have shewn you, that all that the affidavit states, respecting de berenger's going to america, was the invention of lord cochrane since the st of february, that nothing of the sort had ever been thought of before, such proof would have falsified the affidavit. but so far from offering any such evidence, all the evidence adduced confirms the statement in the affidavit; and yet my learned friend still ventures to ask you to disbelieve what lord cochrane has sworn, although his oath is unopposed by any testimony, and supported by all the testimony given in the cause. gentlemen, it is not my business to argue before you, that mr. de berenger went that morning to lord cochrane, expecting to obtain leave to go to america; it is enough for me that i satisfy you, that he pretended that that was the object of his visit; but why did he go there at all? why my learned friend, mr. gurney, has given you the reason for his going to some person's house before he went to his own. he has told you, that it would have been highly imprudent, if he was colonel de bourg, for him to go to his own lodgings; the stock exchange would have had no difficulty in finding him out by means of the post-boys, had he driven home. he determined therefore to make a pretence for stopping at some other person's house; and what had passed between him and lord cochrane, afforded him a pretence for going to his lordship's. gentlemen, bear in mind this; you are to decide this cause upon evidence; you have no positive evidence of any thing that passed in the house of lord cochrane, except that evidence which my learned friend, mr. gurney, has given you from lord cochrane himself; you have had evidence upon the oath of my lord cochrane, that whatever concealed objects this gentleman had, the avowed object in going there, was that which he has stated; and in which, i say again, he is completely confirmed by all the evidence that has been offered in this cause. gentlemen, if it was not for this purpose--if this was not the pretence on which mr. de berenger went there, he was much more intimate with mr. cochrane johnstone than he was with lord cochrane; why did not he go there; mr. cochrane johnstone lived only in the next street; if he went to the one house or to the other, because of a connection between him and these parties in a conspiracy, why happens it that he did not go to the house of the party with whom he was most intimate. gentlemen, there is another circumstance you will not fail to observe; it appears from this affidavit, and will appear from the testimony of witnesses whom i shall call, that lord cochrane was sent for to his house by mr. de berenger; now, in my humble judgment, that is an extremely strong circumstance to shew, that whoever was connected in this scheme, mr. de berenger could not have considered lord cochrane as privy to it. if lord cochrane was engaged in this conspiracy, what object could de berenger have for sending for him back from the city, about half past ten in the morning; why, if he and de berenger had been parties to this conspiracy to raise the price of stocks, mr. de berenger could not want to see lord cochrane; why therefore was his lordship to be sent for out of the city, at the very time when his presence in the city was essential to the consummation of the fraud. this therefore shews to you, i think most clearly and satisfactorily, that de berenger had sent for him on the pretence that lord cochrane states in his affidavit, and that lord cochrane was not informed of what was passing in the city, nor was in any wise privy to it. gentlemen, i have stated to you, that it appears to me that every part of the affidavit of lord cochrane is confirmed by the evidence which has been given by mr. murray, and by all the other evidence offered in the cause; that from all of it you may collect, that de berenger did go there under the pretence stated, and that he did not go there as a place at which he was to terminate a journey which he had undertaken in concert with lord cochrane and others, for the purpose of raising the price of the funds. but knowing the evidence i have, i will not leave it upon this evidence, for this is a case too important to the honour and character of lord cochrane, for me to leave any thing undone which i think may possibly tend to produce that verdict, which i am sure every one of you will by and by feel rejoiced to give; i shall therefore adduce before you other evidence confirmatory of such parts of lord cochrane's affidavit as are capable of confirmation. gentlemen, it has been said that this affidavit is false in this; that it states, that mr. de berenger when he came to lord cochrane's had on a green coat, whereas it is proved by several witnesses that he had on a red one; but let me suppose that their account as to the colour of the coat is true, and that lord cochrane's account is incorrect; would such a mistake, for it is impossible that it can be any thing but a mistake, weaken the credit due to lord cochrane. men do not commit crimes, unless impelled to the commission of such by some strong motive; what object could lord cochrane possibly have for stating that this gentleman came in one coloured coat rather than another? gentlemen, i think i can account for the mistake; my lord cochrane made this affidavit a great many days, i think some weeks, after the transaction had taken place; mr. de berenger belonged to a corps of riflemen in this country, commanded by lord yarmouth, and the proper dress of mr. de berenger, as a member of that corps, was a green uniform; my lord cochrane had often seen mr. de berenger in this green uniform. his lordship, when he made his affidavit, recollected the circumstance of mr. de berenger's being dressed in a military uniform, but there being nothing to fix on his lordship's mind the colour of the uniform, the sort of dress in which he had been accustomed to see mr. de berenger presented itself to his lordship's mind, as the dress de berenger wore when his lordship saw him last. gentlemen, i have now made all the observations that have occurred to me on this affidavit; i cannot, however, take my leave of it, without again intreating you to consider the circumstances under which it was made; remember mr. wright's evidence, and say if any thing can more strongly evince lord cochrane's consciousness of his innocence, than the publication of this affidavit. gentlemen, you have been told, and truly told that lord cochrane is a public character. from the high station in which he was born, and the still higher place in the eyes of his countrymen to which his public services have raised him, his lordship may, without indulging any blameable vanity, one day expect to fill one of the proudest situations in the country. is a man so circumstanced likely to commit so sordid a crime as that with which he is charged? no prospect of gain could hold out any temptation to lord cochrane to put in hazard what he now possesses. the public character which you have been reminded he possesses, would of itself repel such a charge as that which is made against him, though it were supported by much stronger evidence than has been offered in support of this indictment. gentlemen, i come now to the case of mr. cochrane johnstone; and with respect to him, i find that the charge is attempted to be made out against him upon these grounds; first of all, that he was a very great speculator in the funds. gentlemen, i charge again upon the stock exchange the same unfair mode of proceeding, with respect to mr. cochrane johnstone, which they pursued in the case of lord cochrane: with respect to mr. cochrane johnstone, they take up the case, i think, on the th, but my learned friend applied his observations principally to the th of february. now, gentlemen, so far from that being a fair statement of the transaction, it appears most clearly, that mr. cochrane johnstone had been speculating in the funds, and speculating as desperately from the month of november, as he was in this month of february. but another thing is pressed against mr. cochrane johnstone, the largeness of his balance on the st of february, which is stated to be £. , ; now, gentlemen, i am astonished that the stock exchange should instruct my learned friend to say any thing to you upon that subject, producing the account which they have produced; if mr. cochrane johnstone had never had so large a balance before, there would have been something in the argument; but cast your eye up that page, and you will find that mr. cochrane johnstone, who is supposed to have been desirous of getting a quantity of stock into his possession, to sell on the st of february, had on the th £. , ; so that this gentleman, who is supposed by the prosecutor's case, to have meditated a fraud by the sale of stock on the st, is found reducing his balance immediately before that day from £. , to £. , ; to contrive and carry into execution such a trick as that which has been practised, must have taken many days. it certainly must have been in contemplation as early as the th, how then can the prosecutors account for mr. johnstone's conduct in selling between the th and st, if mr. cochrane was one of the persons who had been contriving to put into his possession all the stock that he could purchase, for the purpose of selling it on the st; this is so entirely inconsistent with what must have been the view of a man engaged in a transaction of this sort, that a view of this paper is sufficient to show that there could not have been such an intention; look at this paper, and you will see what he was in the habit of selling; look at his daily sales, and you will find that he began selling; on the th that he sold £. , , on the th £. , , on the th £. , , on the th £. , , on the th £. , , on the th £. , , and on the th, this gentleman, who is supposed to have meditated such a fraud as this on the monday following, sells out £. , . let any man in his senses, any man not carried away with the feelings which agitate the stock exchange, in consequence of their having been outwitted; for these sharps, who are called flats by one of the witnesses, did not like to be taken in by other sharps. let any dispassionate man look at this paper, and say whether mr. johnstone could have contemplated the rise in the funds that took place on the st. gentlemen, it is said that he made a very large profit; that will not prove much, because he was making this sort of profit on several occasions before. what was the general habit of his business, as to the stock exchange? why, that he was content with a very small profit, constantly telling his brokers, that whenever they could get a profit they were to sell, and he was acting in the very same way, until the day on which this transaction took place. gentlemen, i have also to observe particularly, that though he did go into the city on the monday morning, he was in the habit of going every morning; he did not get there any earlier on that day than on any previous day, and so far from his being concerned in the sale of this stock, a very considerable quantity (hichens speaks to £. , ) had been sold before he or any one of these gentlemen came there; how is it possible therefore to say, from the circumstance of his being possessed of this stock, and selling it, that he was implicated in this transaction; on the contrary, i ask you, looking at the whole of this evidence, ask yourselves this plain question, whether he was not selling on the st upon the same principles as he had been selling to an immense amount on the preceding days on which sales had been had? gentlemen, with respect to profit, i believe that will appear somewhat different from what it has been stated, if you cast up the amount of profits. we are sought to be charged with a fraud. why? because these three gentlemen all together made a sum of £. , , which, however, these gentlemen of the stock exchange have put their hands upon, and nobody is likely to get at, as they state it; i believe the whole did not amount to more than £. , , but the prosecutors state it at £. , , that is to be divided among the three, another person taking a share too; but if profits have any thing to do with it, you will find the sales made by mr. cochrane johnstone alone on the th, produced a profit of above £. , ; how, therefore, can you presume, merely from the circumstance of the profits made on the st, that he was connected with this conspiracy? gentlemen, he was near the stock exchange, and if in the secret, he certainly would have availed himself of the practice to which i have alluded, namely, selling at a favourable moment, stock he was not in the possession of; all the brokers have been examined, and not one of them has been able to tell you of one single shilling stock sold by these gentlemen, or either of them, of which they were not actually in the possession. it is impossible, if he is so rapacious a man as to engage in a speculation to ruin his fortune and his character, to account for his not taking advantage of such a state of things. gentlemen, next to the profit made by mr. cochrane johnstone, is his having been engaged to take a house for mr. fearn; and here i was led to expect that my learned friend would falsify the statement made upon oath by mr. cochrane johnstone; he was to prove, that what he had sworn to, or offered to swear to, of his not having taken the house was untrue; it is enough for me to say, that that is not proved; it is an unfounded statement of my learned friend, proceeding from misinstructions which have been given to him by his clients; but on the subject of taking this house, my learned friend must have felt the distress of his case when he pressed it upon you.--why, gentlemen, what are you desired to find? not that these parties were generally engaged in stock-jobbing transactions; not that these parties had conceived an intention of dealing for a continuance in the stocks; but that they had planned a scheme by which, at one stroke, they were to cheat all persons who came to engage with them in the stock exchange; the fraud was to be over in a single day; they wanted no office for that; that could be wanted only for the purpose of carrying on that scheme of stock-jobbing, which these persons began in november, and have actually continued long subsequent to the st of february; but does it not appear that my learned friend is wrong in his instructions. according to the papers we have seen (most improperly circulated) a house was taken for mr. fearn, without his knowing any thing about it; and mr. fearn found himself seated in the office, without knowing how he came there.--does that turn out to be the fact? no; it turns out that mr. butt had an office before, which he did not like; mr. cochrane johnstone took another office for mr. butt; mr. fearn came to look at mr. butt's office, liked it, and it was kept for him. in consequence of this, this office, which you are told was taken by mr. cochrane johnstone for mr. fearn, without his knowledge, was taken by mr. fearn for himself, because he found the house to be a convenient one; and it was suggested to him by his friends, that such a house would be extremely convenient to them. upon this, mr. butt agreed to give up one of the rooms he had, and allowed mr. fearn to take possession of that room. gentlemen, there is another thing which proves that the taking of this house had nothing to do with this particular day; you find, that mr. fearn not only continued to possess these rooms, sticking up his name there, but that he liked them so well, he has since taken the whole house, and now continues to occupy it. gentlemen, what is the next head of evidence pressed against mr. cochrane johnstone? it is, that mr. cochrane johnstone called, and left a letter on saturday the th, at the lodgings of mr. de berenger. gentlemen, in the first place, i have to observe, that it was but very loosely and unsatisfactorily proved, that mr. cochrane johnstone was at the house of mr. de berenger on that day; but i will admit it, for that is the best way, perhaps. i never have denied, that mr. de berenger was acquainted with mr. cochrane johnstone; i never denied that they were in the habit of dining together, and if they were, where was the harm of his leaving a note at the house of mr. de berenger. gentlemen, i did expect, as there has been so much activity (an activity by the bye that has gone beyond the proper line) in seizing the papers of this gentleman, that we should have seen the letter that mr. johnstone left at de berenger's; but no such letter is produced, and although the prosecutors have got possession of every paper belonging to de berenger, not a scrap of paper has been produced in the handwriting of my clients; all that is proved is, that mr. cochrane johnstone called upon de berenger, as one acquaintance would call upon another. gentlemen, god forbid, that because he does so, it should be conceived that he is a party with mr. de berenger in this scheme, if he has been concerned in it. gentlemen, the next attempt is this, and a miserable one it is; all possible means have been had recourse to, for making it out; for not only has mr. basil cochrane's servant been subpoenaed by the stock exchange, to prove who are the persons dining at his house, but the females of this family have been subpoenaed to this place, and kept here for the purpose of proving the same facts which might have been admitted at any hour of the day, and not only subpoenaed, but that subpoena sent by a person whose presence was the most insulting of any one who could have been selected in this town, and who could have been selected for no other purpose than that of offering insult to the members of this family. gentlemen, the next circumstance in this case is, that some money was found in the chest of mr. de berenger, which certainly had passed through the hands of mr. cochrane johnstone. gentlemen, i think you have a clue already given you, by which you can account how de berenger became possessed of mr. johnstone's money. but i shall offer other evidence on this part of the case; i will shew most satisfactorily how that money came into de berenger's hands. you have had it proved already, that mr. de berenger is an extremely ingenious artist; you have had it proved, that he was engaged by mr. cochrane johnstone, for the purpose of planning a new ranelagh, to be called vittoria, near alsop's buildings. now, i will prove to you, by a witness i will call, that part of this money was paid by mr. cochrane johnstone to de berenger, for the plans he had drawn for mr. johnstone of the projected garden; and the remainder was lent to mr. de berenger on his note of hand, by mr. johnstone. fifty pounds was advanced in september last, when the plans of the garden were begun; and £. more was paid in the month of february, the th or th of february. mr. de berenger, at the time he was paid for his plans, stated that his distresses were such, that though what he had received was all he had a right to ask of mr. cochrane johnstone, in satisfaction of that which was due to him for what he had done at vittoria gardens, yet he hoped mr. cochrane johnstone would advance him £. more, by way of loan. mr. cochrane johnstone was exceedingly desirous of relieving the distresses of mr. de berenger; but he would not do it, unless he found he would be effectually relieved by the proposed loan. i will prove to you, therefore, that he took same days to consider of it; and on being satisfied on that point, he did lend de berenger another £. ; and this money was paid in that manner to mr. de berenger and mr. de berenger has given his note for it, payable in six months. gentlemen, my learned friend told you, that bank-notes were good things to trace crimes; certainly they are. the finding of the notes puts me to give some account of them. i will do that by the evidence i have stated; and i have a foundation laid for the proof that i shall offer, by the evidence produced already in the cause. i have seen the plans; you shall see them; and after you have seen them, if you are called upon by the evidence produced in this cause to convict de berenger, which i hope you will not be, you will lament that you are bound to convict a man whom you will find to be possessed of so much ingenuity and taste. you will find that the sum paid is but a small remuneration for the attention he had paid, and the skill he had bestowed, in the service of mr. cochrane johnstone; but whether he was well or ill paid is not the question; the payment of the money, i admit, renders some explanation necessary, and i will give it to you. gentlemen, i come now to the case of mr. butt; and with respect to him the case is very much like that of mr. cochrane johnstone, therefore i shall have occasion to trouble you with but few observations. he is found to have had a large balance on the st of february, but he had as large a one before; he sold on this day, but he had sold a much before. he made only £. , on that day; he had made much more on other days; there is not an atom of evidence connecting him with mr. de berenger; but the taking of the office applies to him as well as to mr. cochrane johnstone, and also the circumstance of some notes being traced into his hands. here, gentlemen, i have a difficulty with respect to mr. butt, which i cannot explain by evidence so well as i can the transactions of mr. cochrane johnstone; but i am persuaded you will feel that i can, by observation, as completely relieve him from the effect of those notes being in the hands of mr. de berenger, as i have mr. cochrane johnstone. i will shew you, by the testimony i shall call, that this debt discharged to mr. de berenger, or the sum advanced by way of loan, was principally paid in one pound notes; if so, that will account for the whole of these one pound notes; and as to its going through the hands of mr. butt instead of mr. cochrane johnstone, is it any thing wonderful, when you find him acting as a sort of agent for mr. cochrane johnstone, that they should have passed through his hands? but it will appear, that all the notes found in the trunk of mr. de berenger got into that trunk, either through the loan or payment of mr. cochrane johnstone. one of the witnesses called for the prosecution has proved the payment by mr. cochrane johnstone of the sum of £. ; but whether that relieves him from the whole or not, are you to say a man is guilty of a conspiracy on such a ground as this? i cannot call these persons for each other; being joined in the indictment, i am deprived of that opportunity. i do not find fault with the prosecutors so doing; but you must be content, under these circumstances, with the best explanation i can offer to you, with respect to that which appears against this gentleman. i shall offer you the best evidence the nature of the case admits; and i cannot do more. if direct evidence cannot be offered, you will not expect it, as my learned friend says on the part of the prosecution, i say on the part of the defendants, and much more strongly. if you see my clients offer you the best evidence the nature of the case admits of, with that i am sure you will be content. gentlemen, with respect to mr. butt, there is not a tittle of evidence bringing him into connection with mr. de berenger; no man has proved that ever they were seen in the same room; no person has ever brought them into connection together; and it is merely because mr. butt is a great purchaser of stock, and some of mr. butt's money is found passing through the hands of mr. cochrane johnstone into the hands of mr. de berenger, that you are desired to find them all connected together in this conspiracy. gentlemen, i have divided these three persons cases; but there is an observation common to all the cases, which i feel it my duty to make to you. my learned friend said, he could not put them in the same room together; but i think if these persons were conspirators, he would have found no difficulty in bringing them nearer together than he has done. i think he might have shewn, that about the stock exchange, or at some place or other, they were at some time or other all acting together; we have eight or nine different persons, mr. de berenger, mr. cochrane johnstone, mr. butt, lord cochrane, mr. sandom, mr. holloway, mr. lyte, mr. m'rae, all charged as co-conspirators; did any man ever see all these persons together; between a great number of them there is not the least proof of connection; you are desired to find a conspiracy proceeding upon this supposition, that all these parties were acting in concert; and yet between two of the parties, there is no more connection proved to have existed, than there is between you and me, or you and any one of these parties. gentlemen, this observation i should have a right to make on any case of a conspiracy. i should have a right to say, it is too dangerous to say these persons were engaged together in a conspiracy; but, gentlemen, permit me to call your attention to a particular fact proved in this case which negatives the connection of my clients in this conspiracy;--you have two persons who are stated to have made a confession of their guilt; one of these gentlemen appears to have felt the impropriety of his conduct, and in a moment when he had recollected himself, and recollected the offence of which he had been guilty, had gone with a mind disposed to make the fullest compensation that he could to those whom he had injured, and to state all that he knew of the transaction; he goes and he states, that having heard that a mr. m'rae was willing to give up the persons who were parties to this conspiracy, on the payment of a large sum; he considers it improper, that the stock exchange should be plundered of this large sum, by the extortion of mr. m'rae; and therefore, to prevent their paying this large sum to mr. m'rae, he (holloway) goes to the stock exchange, and tells them all that mr. m'rae could tell them; and what does he say; it would have been enough if he had not said that mr. cochrane johnstone, lord cochrane, mr. butt and himself, were connected; but he says, in the most distinct terms, that he knew nothing of lord cochrane, mr. johnstone, or mr. butt. the way in which the case is put to you, is, that all these parties were acting altogether; if so, one of the actors must know who were the other persons that were engaged; and mr. holloway, who was an actor, declares that he knew nothing of either mr. cochrane johnstone, mr. butt, or lord cochrane; but lyte, who was present when holloway made this declaration, does not contradict; he acknowledges his own guilt, and asks for mercy, but he does not attempt to inculpate my clients. i ask, are you against evidence; against the evidence offered by the prosecutors, for this evidence forms a part of the prosecutors case, to say that these persons were connected with the conspiracy. gentlemen, if mr. holloway could, at the time he was disposed to make confession of his own guilt, have gone the length of saying, i can prove that lord cochrane is a conspirator, i can prove that mr. cochrane johnstone is a conspirator, he would not have been here to-day to answer for his crime; he would not only have been paid, but most amply rewarded, if he could have given any testimony by which the conviction of my clients could have been obtained. gentlemen, there is another circumstance i must take leave to press upon you. it seems to me that a conspiracy of this sort could never be carried into effect without some broker being concerned in it. if my clients had been concerned, they would certainly have consulted some of the brokers who have been examined. it is impossible that they could have kept the secret from these brokers; and yet i think it is perfectly clear that they knew nothing of it. it is not pretended by the prosecutors that they had, and from the fairness with which they have given their evidence, it is but just to acquit them of any participation in it. gentlemen, i beg to be understood in what i am now about to say, as not intending to impute any thing wrong to government or to the stock exchange; though i think i may venture to say, that what has been done as to the breaking open the trunk, and the searching for these papers, cannot be justified by law; for i know of no law that justifies the government of the country, or any magistrate whatever, in breaking open trunks and taking away papers on suspicion of a misdemeanor; yet i am not disposed to impute blame to public officers, when impelled by proper and adequate motives, they go a little beyond the strict letter of the law; but where such powers have been exerted to detect guilt, if guilt had existed, it could not have escaped detection. there has been a degree of activity exercised to bring home the guilt to these persons, which i never saw on any former occasions; liberties have been taken which i never saw in a case of misdemeanor before. all de berenger's papers have been ransacked and taken from him, at a moment when he could have no idea that they would be taken, and therefore could not have destroyed or secreted any, and yet not a single paper is found (but the bank notes), not a single letter; the parties to the conspiracy are never brought together in connection, and it does not appear that there has been any communication by letter. here seems to be a conspiracy without any possible means of conspiring. i do not see how men are to conspire without communicating with each other, and i am not aware of any other modes of communication than conversation or writing; yet you are desired to find several persons guilty of a conspiracy, without any communication having been proved to have been had between them, and without any writing of any sort having been found. gentlemen, there is one other circumstance to which i would wish to allude; not that it concerns my clients, for i am persuaded his lordship will tell you the evidence given by that extraordinary man, le marchant, does not bear upon either of my clients, because though where several engage in a conspiracy, you may offer evidence that will affect any one of them, yet the declarations of one cannot affect another; now mr. le marchant was never in the company of lord cochrane, he never heard one word that lord cochrane said; all that he speaks of are conversations with mr. de berenger, which may be evidence against mr. de berenger, but in point of law or common sense are no evidence against lord cochrane; but i will dispose of this man for the sake of the country, that he may never be sent out of the country in any office. i will shew you that he is a man utterly unworthy of credit, for i will prove to you by his own letters that he comes forward to-day, because lord cochrane has refused to lend him money; gentlemen, i have a letter of his, in which he desires to have an interview with lord cochrane; he has admitted his own hand-writing to the letters, which i will by and by put in. lord cochrane very properly gives no answer to the first letter desiring an interview; on the th of april , the first being on the th april; on the very next day, lord cochrane not answering him, he writes an impertinent letter to lord cochrane, which you shall hear read; but i produce it for the purpose of introducing the letter which he admits lord cochrane wrote to him, and his answer, from which i argue lord cochrane's innocence, and this man's infamy. if lord cochrane had felt himself a guilty man, he would not have denied this man when he suggested that he could be of use to him in this cause, but you will find from lord cochrane's letter, he says, "i should have hoped, that circumstanced as i am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of silent contempt." _mr. gurney._ my learned friend has not yet proved that letter. _mr. serjeant best._ i proved that he had the original in his hand; this is the letter of the guilty lord cochrane to the innocent mr. le marchant, in answer to the two applications for an interview. "sir, i should have hoped, circumstanced as i am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of silent contempt;" that is, what he complains of to lord cochrane in his second letter, "to account for the delay of a few hours in answering a note; the more particularly as your note of the th led me to conclude, that the information offered to me, was meant as a mark of civility and attention, and was not on a subject in which you felt any personal interest." a more prudent letter than that, i defy any man in lord cochrane's situation to write. a guilty man catches at any twig, but lord cochrane does not answer this gentleman at first, and when pressed by a second letter, he tells him the reason; it is unsafe you and i should meet, i cannot trust you, i am surrounded by scoundrels who are attempting to charge upon me a crime of which i know i am innocent. gentlemen, having stated to you in what light this letter shews lord cochrane, i beg to read you the last letter of this man, who has offered his evidence to-day; and i will then ask you, whether upon the testimony of such a man as this, you will convict one of the most suspicious characters that ever was produced in a court of justice; whether you would in any cause, of ever so trifling importance, give the least consideration to it. "i ask your lordship's pardon of my letter of yesterday, and which was written under the supposition of being treated with silent contempt;" so that this gentlemen put the true construction upon it, certainly. "to convince you of the high respect i have for your lordship, i have the honour to enclose to you a statement of what i know relative to the st february, and i also now declare solemnly, that no power or consideration shall ever induce me to come forward as an evidence against you, and that all i know on the subject shall be buried for ever in oblivion. thus much i hope will convince you i am more your friend than an enemy, as my testimony, corroborated by the two officers, would be of great import, not (believe me) that i myself doubt in anywise your lordship's affidavit; but de berenger's conversation with me, would, to your enemies be positive proof. as for my part, i now consider all that man told me to be diabolically false;" and yet he has to-day come forward to tell you the truth, and the whole truth; he has told you what de berenger said, and has not stated the qualification, that he did not believe one word of it. "if my conduct meets your approbation, can i ask for a reciprocal favour, as a temporary loan, on security being given; i am just appointed to a situation of about £. , a year, but, for the moment, am in the greatest distress, with a large family; you can without risk, and have the means to relieve us, and, i believe, the will of doing good. necessity has driven me to ask your lordship this favour; whether granted or not, be assured of my keeping my oath now pledged, of secrecy." he has kept that oath, i dare say, as well as he has kept this; he went and gave information, and comes forward to-day to give evidence; you remember how he fenced with the evidence. i ask you, whether you believe, after i have read this, one word of what he has said. i ask you, whether this is not taking advantage of the situation of this noble lord. i am sorry to see that a man can act so scandalous a part, who has the honour of being appointed to a situation of £. , a year; but i am quite satisfied the moment the government know this, that suspension which does exist, will be continued, and that this man will never be sent to the office to which he was destined. i am quite satisfied, that when this letter is read, you will feel, that even as it respects mr. de berenger, for it is applicable only to him, his evidence can have no influence in any court of justice whatever, for that it comes from a man who, in the clearest and most unequivocal manner, declares himself most infamous, and most unworthy of credit. gentlemen, i am conscious that fatigued as i felt myself, when i rose to address you, after having been thirteen or fourteen hours in court, i have very imperfectly discharged the duty which i owed my clients; but, gentlemen, i hope they will not suffer, from not having their case presented to you as it ought to have been. gentlemen, i do not press upon you the considerations which, in criminal cases, are often pressed, and with propriety pressed, upon juries. i do not ask you to take this case in a merciful point of view; i do not press upon you the common observation, to temper your justice with mercy. i ask you to look at this case fairly and impartially; if the guilt of these gentlemen be made out, so that you, upon your oaths, must declare them guilty, say so, dreadful as will be the consequence to all these parties; but unless their guilt is made out, if there be nothing but suspicion, you will not, upon your oaths, say that suspicion is conviction. gentlemen, you will recollect the situations of life in which all these men are; they have all up to this moment been the best possible characters, two of them are persons of very high and distinguished situations in life, members of a very noble family; and with respect to one of them, he has reflected back on a long and noble line of ancestors, more glory than he has received from them; and it would be the most painful moment of my life, if i should to-night find that that wreath of laurel which a life of danger and honour has planted round his brows, should in a moment be blasted by your verdict. mr. park. may it please your lordship; gentlemen of the jury, if my learned friend, at the close of his address to you, thought it necessary to make an apology for the fatigue which he had endured in the course of this day, and during his address to you; it becomes much more necessary for me to make such an apology, when it is now sixteen hours and a half since i left my own dwelling. gentlemen, notwithstanding that, i have a very serious and important duty to discharge to the person who now sits by me, and i have no difficulty in calling upon you, in the most serious manner, fatigued and exhausted as you may be, for your attention; you must not permit, i take the liberty of saying, as you regard the oath you have taken, you must not permit that fatigue to disable you from attention to the statement and the evidence that are to be laid before you. gentlemen, the case has become an extremely serious and a most important one; for the gentlemen for whom my learned friend the serjeant has addressed you, i have nothing to say; they have been well and ably defended; but i am to address you on behalf of a gentleman totally unknown to me till this day, when i saw him in court. he is represented to me as a gentleman of very high descent, and though he has been unfortunate in his pecuniary circumstances, he has been proved, before you to-day, to be man of very considerable attainments, and of high and literary character; it is therefore your duty, and i know it is a duty you will honestly and faithfully discharge, not to allow what my learned friend cautioned you well against, but immediately fell into the very same course himself; not to allow any thing like prejudice to bias any of your minds. gentlemen, i am no flatterer of persons who sit in your place; and i have no difficulty in telling you twelve gentlemen, that, though i have no doubt you are honorable men, you cannot have lived in this city, in which you are all merchants, for the last two months of your lives, without having every hour of the day, and at every meal at which you sat down, had your ears assailed by accounts of this transaction, and there is no one, however honourable he may be, who can prevent his mind being biassed by circumstances stated in common conversation. gentlemen, i only know this matter publicly; but i declare one could hardly go into any company, where the discourse has not been turned upon this very circumstance we are now discussing; how difficult is it then for you to recollect, that you are not to decide upon any thing you heard before you came into that box, but upon the evidence produced before you. but, did my learned friend himself follow that course which he prescribed to you? did he embark no prejudice into this matter? my learned friend will give me leave to say, that i own it is quite new to me, that in discussing criminal matters, the counsel for the prosecution are to argue it and labour it as they would a cause between party and party:--i dare say i have been extremely faulty in that respect, but having been engaged in criminal prosecutions, chiefly in the service of his majesty, i never thought myself at liberty so to treat criminal prosecutions. i have generally acted on the opposite scheme, and mean, till corrected, so to continue to act; but at all events, i am surprised that my learned friend, with whose good nature in private life we are all acquainted, should have introduced before you, that which i say my learned friend's great experience in courts of justice told him, before he pronounced it, he had no right to read in evidence before you. i do not speak lightly of this; you will remember we had an affidavit, supposed to have been made by william smith, read verbatim from some pamphlet my learned friend had in his hand; he knew perfectly well that it could not be given in evidence; if william smith was called as a witness, undoubtedly my learned friend might ask him, whether he had not sworn the contrary at another time; but it will be for my learned friend to explain to you, under what rule it was, that he was at liberty to read such a document as a part of his speech, which, by the rules of law, could not be received in evidence in this place. gentlemen, there was another circumstance which my learned friend has introduced to prejudice this case; and unless i have deceived myself, or my ears have deceived me, i have heard no such evidence given in the cause, as my learned friend stated; a stronger statement to prejudice could hardly be made in a case of this sort; but i heard no such question put to wood, the messenger, and i listened with all the attention i could to his examination.--my learned friend stated, that mr. de berenger had been extremely anxious to get back into his hands the identical notes; that no other notes would serve him; that he must have those notes, and those only delivered back. was this stated without any reason by my learned friend? certainly not; it would have been, if the fact had corresponded with the statement, an extremely strong argument on the part of my learned friend against this gentleman for whom i am counsel. but my learned friend, and his learned coadjutors, never put to any witness, at any one period of this cause, the question, whether mr. de berenger made any such application to their knowledge? and all this is a gratuitous statement of my learned friend, but a statement that went to prejudice, or was intended to prejudice, your minds upon the subject, and it undoubtedly was very important. gentlemen, this may have been said in places unknown to me; it may have been said in newspapers for aught i know to the contrary; but, thank god, i never read newspapers with that attention some gentlemen do, for i think it is a great waste of time. if men are in public situation, they must read them; but i have heard no statement in evidence of that circumstance, which my learned friend mr. gurney so much relied upon, and so much reasoned upon in his statement to you. gentlemen, it was also said, that there had been publications in this case; i do not know by whom those publications have taken place. there was some evidence given by mr. richardson, of a publication by mr. butt; that i suppose my learned friend has seen; i have not; but i do not go along with my learned friend in this; i do not agree, that these are the necessary consequences of a free press; i have always been of opinion, and always shall, because it is firmly rooted in my mind, that all previous publications on one side or the other, tending to inflame the minds of the jury, who are to try questions between the king and his subjects, or between party and party, on whatever side they may be published, are most highly and extremely improper. i think it is a disgrace, that the press of this country has engendered such an avidity in the public mind to have these things detailed to them; that they indulge it to a degree subversive of all justice. hardly a case has happened within our own observation of late years, that the whole of the case has not been detailed before it came to trial, so that it is impossible but that the minds of the jurymen (and men cannot divine whether they shall be jurymen or not) should receive a bias upon this subject; but it is very hard that all the obloquy which such publications merit, should be thrown upon the defendants. did that self-constituted committee of the stock exchange, of which i shall speak much more plainly by and by, and tell you what i think of that committee; did that self-constituted committee of the stock exchange, who have brought forward this as a charge against the defendants, make no publication; did they not placard on the doors of their stock exchange, the names of these gentlemen, members of the legislature, and persons standing so high in the country? why did they set so infamous an example? i admit to follow it was bad; but to set it, i insist, was much worse. gentlemen, whatever blame may have attached upon some of the defendants, if they have made these publications, my client, mr. de berenger, is not implicated in any such transactions. those who have published have only followed the example set them by the prosecutors on this occasion. gentlemen, there are certain rules of evidence on subjects of this nature, with which i am sure you are in a great degree acquainted, but upon which you will hear more from his lordship by and by. it is quite clear that no declarations of one party, though he may be indicted with the others, can be evidence against the other defendants, unless they be present at that declaration. my learned friend, the serjeant, has so fully gone through the general nature of the case, that it would be impertinent in me to do it; but i shall observe such things as occur to me, on the different species of proof on the part of the prosecution, and i think i shall most decidedly convince you, that even as the case stands, if it was not to be met by the evidence by which it will be met, it would be impossible for you to convict any of these parties, for whom my learned friend and myself are counsel. gentlemen, i will presently come to the evidence by which mr. de berenger is supposed to be traced from dover to london; but the great point upon which my learned friend relied, as affecting him after he came to london, was the contradictory statement, as it is supposed, of lord cochrane in his affidavit. gentlemen, first, upon the subject of what are called voluntary affidavits. it is extremely absurd in magistrates ever to take them; no man who knows the law, if he knew he was taking a mere voluntary affidavit, would swear the person before him; but as far as the magistrates are concerned, it is impossible from the nature of the thing, that they should know whether they are voluntary affidavits or not, for there is a great part of the business of magistrates which does not depend upon the hearing of parties, and unless they were to read every affidavit through, which would be to impose a great burthen upon them, they must sometimes swear a party to a voluntary affidavit. but, gentlemen, let us look to lord cochrane's situation in this matter. i will suppose that lord cochrane knew he was not liable to the pains and penalties of perjury by law; but is lord cochrane so reduced in the scale of society by any thing that has yet appeared before you, that you will say he has not only joined in committing the fraud in this conspiracy charged, but that he is a person wholly unworthy of credit, and who, though he may not be subjected to the penalties of perjury, is lost to all sense of duty, so that he would, because he could not be prosecuted at law for the perjury, put his name to a direct and absolute falsehood. i believe no man would say of lord cochrane, that he had so utterly thrown off all regard to religion, to the sanction of an oath, properly so called, and to the responsibility he stands under in conscience, as that he would go before a magistrate and make an affidavit, because he could not be prosecuted. i think the supposition is so shocking and so degradatory to him as a man, an officer and a christian, that you will not come to that conclusion. that lord cochrane is a brave man, that he has served his country well, no man will deny. does mr. baily then, do the three other brokers, who demurred to the question put to them as to time bargains; do all this mass of people, constituting the stock exchange, now standing within the sound of my voice, mean to say, that because lord cochrane has acted so improperly (for i so consider it) as to enter into a time-bargain, therefore he is not to be believed upon his oath? if so, gentlemen, the stock exchange and its doors must be shut up for ever; and the great men who stalk about as the self-constituted committee of the stock exchange, must not have any thing to do in future, because time-bargains are their daily bread; they are at that species of traffic daily, conducting themselves in a manner, whether they like it or not, i say, is most highly disgraceful. gentlemen, is lord cochrane to be believed or not? have you any ground for saying, that this noble lord has been guilty, not of perjury in the common sense of the word, but of perjury of a much higher kind, in my view, for which he must be accountable, for which he knows he must be accountable, if he has sworn that which he knows to be false, and which he cannot have done without being one of the most worthless men in the world. gentlemen, what has he said? and i beg your particular attention to it, because the evidence of the brokers will not tally with the statement at all; he has sworn that he breakfasted with his uncle, mr. cochrane johnstone, in cumberland place, which is at a considerable distance (whatever my learned friend may suppose about it) from green-street grosvenor-square; it is on the other side, i believe, of the oxford road, and near the top of it. it is proved that he breakfasted with him, for crain's evidence is, that when he set down mr. de berenger at the door, the answer was, that he was gone to cumberland place. what does lord cochrane state; that he went with his uncle in a hackney coach, which took him into the city at the hour of ten in the morning. i beg his lordship's particular attention to that part of the affidavit. now, gentlemen, when is it that these time-bargains are supposed to have been made, in consequence of news which it is alleged mr. de berenger brought. it is sworn that they were made before eleven o'clock in the day. why, gentlemen, we are forgetting distances. if lord cochrane was set down at snow-hill at ten in the morning, if he afterwards came back, as he did, to green-street grosvenor-square, being sent for by his servant or mr. de berenger, he could not be back before half-past ten or nearly eleven, and i defy all mankind to state how he could after that have communicated to the stock exchange, the news this gentleman was supposed to be dispersing abroad, so as to affect the price of stocks. the whole of the transaction took place before eleven in the day, and he was not sent for from snow-hill till after ten. why, if this gentleman had been a conspirator with lord cochrane, when he heard that lord cochrane was gone to snow-hill, he would have gone on to snow-hill, then they would have been near the purlieus of that place where all this infamy is daily transacting; instead of that lord cochrane comes back. it is too ridiculous and absurd, says my learned friend, to suppose that lord cochrane should be coming back to see an officer. i hope, gentlemen, that will not appear to you to be absurd under the circumstances he has sworn to. i can hardly conceive a motive stronger on the mind of a brave man and a good officer for going back, than that stated by him. he was not acquainted with mr. de berenger's hand-writing, though mr. cochrane johnstone was. having a brother in spain, he expected that he should receive accounts of him from a brother officer; is that an unnatural sensation? i trust it will never be so in the bosom of any one to whom i am addressing myself; it is one of the most natural that can be stated, and under that impression he goes back, and holds the conversation which has been stated. gentlemen, it is stated to you by my learned friend, the serjeant, and he has better means of proving these things than i have, that the grounds upon which this matter rests, as far as lord cochrane is concerned, will be fully explained. the gentleman for whom i appear was, at that time, under duress on account of debt; and mr. tahourdin, now his attorney, was his security for that debt. he was a distressed man, and was desirous of going out to sir alexander cochrane, who had had conversation with this gentleman, whose bravery and whose character nobody will dispute; and it will be proved to you sir alexander cochrane had made application to the noble lord near his lordship, to enable him to go out to america; but he could not go, because his majesty's ministers thought (and i dare say most wisely) that it was not fit to give him the rank which he claimed, being a foreigner by birth, though he had been long serving in this country with the approbation of his majesty's government. he was a member of the corp of sharp shooters, of which lord yarmouth or the duke of cumberland was the colonel. he was the adjutant of that regiment, and he had that military garb and dress which might have been sworn to by lord cochrane in the way my learned friend supposes, or in consequence of the facts which i have to state. i do not know why i am placed here at all, if i am to take for granted facts because witnesses have sworn them; therefore i say, lord cochrane might either mistake, upon the grounds upon which the learned serjeant has stated it; or the fact might be, as my learned friend has stated, that he was not the man. i know that some of the witnesses have sworn that he was the man whom the hackney coachman took to lord cochrane's, but whether he had this uniform on which is stated, i have no means of proving from his declaration; but i have lord cochrane's affidavit as to his wearing that which was his proper uniform. then, gentlemen, upon my lord cochrane's affidavit it stands, and i say that at present there is not evidence enough to meet it. we have not often had the experience of that which has been done to-day; i believe not above twice in my professional life have i seen a prosecutor put in an answer in chancery of the person who was defendant, and then negative that answer; but i say, there is not that negation of lord cochrane's story which can set it aside. you are bound to take all that lord cochrane swears upon the subject; and he has sworn to you that mr. de berenger did not communicate to him any single fact respecting the stocks, but that all his communication was with respect to his then distresses. now, gentlemen, where is the inconsistency of that which appears upon the evidence before the court, and that which will be produced. if this gentleman was desirous of going out with lord cochrane in the tonnant, and if he had done that which i am not commending, though i shall presently shew it is not so culpable as it at first appears. he had no right, i acknowledge, to break the rules of the king's bench, having the benefit of those rules, but where is the great wickedness of it? he gave bail to the marshal to answer the risk; but if he had come out of that place, dressed as you hear, by my lord cochrane, he had done so with a view of going immediately off to portsmouth; and when my lord cochrane could not take him, though there was no inconsistency in his coming in that uniform, which was to be useful to him if he got out to america, there was a great deal of difficulty, at twelve or one in the day, in his returning in that garb or dress into the rules of the king's bench prison, for he had not only to walk from the place whence those rules began to the house of davidson, but first of all to where the rules began; and therefore, though it might be imprudent in lord cochrane, i shall prove that he did lend clothes to mr. de berenger, for that he returned in the black clothes to his lodgings, and that he had in a bundle those clothes which he had taken out on his back. there appears to me nothing so absurd in the story as to induce you to say, that lord cochrane has written to the public that which was wholly and absolutely false within his own knowledge, in order to deceive the public. gentlemen, when this person found that he could neither go with lord cochrane, nor in any other capacity, to sir alexander cochrane, who was then out of the kingdom, you will ask me, why did he then escape from the rules? gentlemen, i will tell you:--the fact is, though he was only in duress for £. ; and although this gentleman who sits near him, who is his attorney, and will be called as a witness in the cause, was the principal creditor, who had been his surety for the rules, he escaped from the rules, under the apprehension that he should have detainers against him for four thousand pounds more. he asked this gentleman permission to go out of the rules. i am not prepared to defend the act; but he was the only person who was beneficially interested in his remaining in the rules; for he and mr. cochrane, in fleet-street, having given this bail, the marshal of the king's bench could, of course, come upon them for the amount of that sum; and i will prove to you, that he had the leave of this gentleman to go, and that this gentleman took the debt upon himself. he went to sunderland, and afterwards to leith; and he went there to avoid that which he was apprehensive of, namely, detention by his other creditors, to this very large amount. gentlemen, when we talk of prejudice upon this subject, this very thing has been attempted to-day to be put upon his lordship; and you, as a matter of prejudice against mr. de berenger, namely, that mr. tahourdin, who was attorney for mr. cochrane johnstone, and mr. cochrane (a relation as it was supposed of this family, or there was no sense in it) were his bail. but, gentlemen, mr. broochooft has negatived the fact; he states that he did not even know mr. cochrane johnstone. mr. tahourdin was a creditor of mr. de berenger to the amount of four thousand pounds, but he had so good an opinion of him that he consented to his liberating himself; and as to the other security, mr. cochrane the bookseller, he is no more a relation of the family of dundonald, than i who do not know the persons of any of them; but he is a friend of mr. tahourdin, whose sister is married to mr. white, mr. cochrane's partner; that is the history of the transaction on which it is supposed that mr. cochrane johnstone has been putting in bail, because mr. tahourdin was his attorney; but it will appear that bail was put in two years ago, and that mr. tahourdin did not become acquainted with mr. cochrane johnstone till long after that time. gentlemen, there have been other prejudices attempted here; they are prejudices that i think could never have entered into the mind of any liberal man; they must have entered first into the minds of the stock exchange committee, for no gentleman could think of such a thing; that which i refer to is, that which my learned friend the serjeant has commented upon, the proof of mr. de berenger being a friend of mr. cochrane johnstone, from the circumstance of his dining with the family. gentlemen, is every one who dines there to be considered as a conspirator? they are not a committee sitting over their bottle and hatching this infamy; but it appears that he dined twice at the house of mr. basil cochrane (who is not implicated in this), not alone, but with sir alexander cochrane, and a great number of ladies and gentlemen; and at another time mr. de berenger and mr. cochrane johnstone also dined at mr. basil cochrane's. gentlemen, i am told, and i believe, after what i have heard in this cause, for i have heard it from mr. murray, that mr. de berenger is a man of great abilities; his society and his company were much courted till his misfortunes put him out of the general run of society; was there ever such a thing attempted till this moment, as that you were from such circumstance to prove a conspiracy as against these persons? on what ground can it be said that his connexion with mr. cochrane johnstone is a matter of complaint against him? i have proved what it was; i have proved, out of the mouth of mr. murray, and shall prove again if necessary, that the meeting of these gentlemen there was not a meeting of business; was there any thing in the conversation when mr. de berenger came in, in the presence of mr. harrison, that gives the least suspicion of a connexion with mr. cochrane johnstone? it appears only, that he being an ingenious man, engaged himself in this ranelagh that was building, from which it was expected (probably it will terminate in nothing) by mr. cochrane johnstone, that he would derive great benefit; this gentleman, being consulted on the plan first proposed, recommended another from which he conceived mr. cochrane johnstone would make a great deal more money; there is nothing in the connexion more than that. are you from that circumstance to infer that this gentleman was guilty of any conspiracy? as to any negociation on this subject, you hear nothing nor see nothing. you do not find him at any one period of time with mr. cochrane johnstone. you hear of his dining twice in company with him at the house of mr. basil cochrane; you do not hear of him at all there, except about this ranelagh; but you are desired from that to infer criminality. but gentlemen, this is a most important transaction; my learned friend has told you he will more satisfactorily explain it by the evidence upon the subject; there is no doubt of the gentleman who sits before me being in distress of circumstances, but at the same time a most ingenious man; and having done various works of art for mr. cochrane johnston, the latter thought himself indebted to him about two hundred pounds, and paid him the money. gentlemen, all i can say upon this is, that there is no conspiracy amongst us here, for i do assure you, that until i came into this place, and saw my learned friends, except my learned friend mr. topping, with whom i had spoken on the subject, i did not know that the others were concerned for the defendants upon this occasion; but i hear my learned friend state that which i trust he has the means of proving, but which my unfortunate client has not, not only because many of his papers have been immediately taken from him by the messenger, in the manner described, but because he is himself a close prisoner in newgate, under a warrant of the alien office, and therefore has not the same means and opportunity of conferring with his counsel; for i have never placed myself in that situation, and do not mean hastily to go there, for it is not a very agreeable service, and i would take no man's retainer, if i thought that i must do so; there has not therefore been that communication which we should have had, if our client had been a free man. but i shall prove by some witnesses of my own, that which will give a considerable colour to my case, and shall pray in aid all the evidence given by any other witnesses on this side of the question. gentlemen, before i leave this part of the case, i would wish also to remind you that we have had another piece of evidence given against my unfortunate client, by a man of the name of le marchant. i will venture to say, and i hope you have observed, that a much more extraordinary witness never did present himself in that box. it does not become me (and i am the last man to do it) to arraign any one act of his majesty's ministers, but i believe that the exhibition made this day in the presence of some of his majesty's ministers, will have been sufficient to set aside any intention of sending him out under an appointment, if it ever prevailed in their minds; for i do say, i think he would disgrace any country from which he was sent on any public business whatever; i think he would not be long in any situation, before he disgraced himself as a man, and brought disgrace upon those who employed him. but gentlemen, i do not know whether you observed another thing, which is, that he shot out of court as if he had had a sword stuck into him, and appeared no more; i never saw any thing so marked as his conduct was upon that occasion. my learned friend has called your attention to his letter, which i never saw till he read it; my client was protesting against his testimony; but i cannot call him as a witness against this man's evidence, which mr. richardson endeavoured by his cross-examination to alter, because it was our duty to endeavour to get some alteration of that evidence, not knowing how he had conducted himself. i do earnestly beg of you to recall to your attention, the answers he gave to my learned friend, the serjeant; did he not positively say upon that examination, that he was only kept by his majesty's ministers in this country to give evidence, and that he had not given his evidence at all from a feeling of resentment, because lord cochrane had not complied with his request in giving him money. gentlemen, when this correspondence comes to be read by his lordship's officer, is it possible you can believe one word of that; he in this letter, which is the last my learned friend stated, and the only one on which i will comment, stated that he believed every thing that de berenger had told him respecting lord cochrane, was false. if it was all false, as it respected lord cochrane, it was all false as it respected himself, for this man had no time-bargains as the other gentlemen had, he was to derive no immediate benefit, except as you believe that man. i beg your particular attention to that, that he is the only person who swears to his having a per centage in this matter. i think i am correct in that statement, that le marchant is the only person who says de berenger told him that he was to have a per centage upon the stock. now gentlemen, this conversation having been on the th of february, seven days before this transaction, he makes the observation in this letter, that he verily believes that every thing de berenger told him respecting lord cochrane was false. if it was all false, it must be false with respect to de berenger himself, and according to his own statement he must have invented this story, merely to implicate lord cochrane in the transaction; it is absurd gentlemen not to speak to you as men of understandings. do you believe that this letter has any other sense, than give me so much money, or i will do so and so? after threatening him, he says, "as for my part, i now consider all that man told me to be diabolically false," and then without even a new paragraph in his letter, "if my conduct meets your approbation;" what conduct meets his approbation, that he would say in all places and at all times that this man's statement was diabolically false, as far as respected lord cochrane; "can i ask a reciprocal favour, as a temporary loan, on security being given;" then he goes on to say, "i am just appointed to a situation of about £. , a-year; but for the moment am in the greatest distress, with a large family; you can without risk, and have the means to relieve us, and i believe the will of doing good." and then, because lord cochrane most wisely refuses to comply with this request, we have this man set up in the box, to tell you this supposed story of de berenger, which de berenger has no means of contradicting; but which i say is so incredible, and so contradicted by the letter under his own hand, that i think jurymen, if it stood upon his testimony alone, or even supported by one or two witnesses to other things, would do most unrighteously if they convicted upon such testimony as that fellow has given, for i never saw a man so disgrace himself as he done. now gentlemen, with respect to the proof of mr. de berenger's hand writing, as to those things which were found in his box. i put mr. lavie's evidence out of the question; at first his lordship put it, that it was slight evidence; but that it was evidence subject to my observations, the thing being found upon him; gentlemen, supposing there was no evidence of his hand-writing, i can only say he must be well clothed in innocence who can escape, if a man is to be convicted, merely because a paper is found upon him; if a man writes to me a paper containing matter of a criminal nature, and i happen not to destroy it, i must immediately be convicted. i do not mean that his lordship has said so; but if i am to be convicted because a paper is found upon me, then a man may be in danger from every letter he receives from a correspondent; i am sorry to say that i receive a great many letters which i do not answer; but does my possession of the letters give ground for inferring an approval of all contained in those letters. if you were to convict this gentleman on account of any memorandums found in his possession, because they are found there, i do think a great injustice indeed would be worked. but, gentlemen, mr. lavie has proved his hand-writing. i shall call witnesses to contradict mr. lavie; but do not misunderstand me, i believe mr. lavie to be a very honourable person, and one who would not tell you a falsehood; but i say he has not the means of knowledge. i can only say, gentleman, that a man must be much more attentive to hands-writing than most of the persons of my profession, in which i include mr. lavie, if he can swear to a hand-writing, because he has seen that hand-writing once. i have seen my learned friends near me write many times, but i could not swear to their hands-writing; if i saw a very bad hand indeed, i should say it was mr. serjeant best's; but let me caution you; you are trying these defendants for a conspiracy; you are trying them for a crime of the greatest and most enormous magnitude; you are trying them for an offence that will shut these gentlemen, if you find them guilty, out of the pale of all honourable and decent society; and therefore, though this subject is one, which, from the singularity of it, may create a smile, it is a matter which you will not smile upon when you come to pronounce your verdict; because upon your verdict must the happiness of these gentlemen depend. will you, upon the evidence of mr. lavie, honourable as may believe him to be, and just as you may believe him to be, say that he has those means of knowledge which he professes to have. gentlemen, i am placed in a very awkward situation as to that paper, which my client assures me he never saw, and i mean to call witnesses to prove, that he is not the writer of it; i do not think it necessary, but i will do it, for it shall not rest upon me that i have not done my duty. but i am placed in an awkward situation as to the hand-writing; i do not complain of it, but the witnesses into whose hands i must put that paper, have never seen it. mr. lavie has seen it; he has had an opportunity of conning it over; but i think he might have done better than to have given his own testimony of this mr. de berenger's writing. mr. de berenger is not an obscure man in the city of london; he has lived in this country twenty-five years; he tells me there was no man acquainted with his hand-writing, who could be called to prove this to be his hand-writing; and that no witness to speak to that could be found; but mr. lavie went to him improperly; for the stock exchange had no more right to break in upon mr. de berenger, at the parliament-street coffee-house, than any one of you. i say it was an impertinent intrusion; this gentleman was brought up on a warrant not respecting this affair, but on a warrant from the secretary of state, whilst he was fatigued and tired, as he stated to the messenger; still most disgracefully the messenger allowed mr. lavie and the stock exchange committee to pump him upon this matter. how the hand-writing is attempted to be proved, it does not become me to say further; but i put papers into the hand of mr. lavie, the hand-writing of which, if they be of the hand-writing of mr. de berenger, i will venture to say that the paper lying before his lordship is not; because i have eyes as well as mr. lavie has; and i think i can speak to any hand-writing as well as he can. i say it is not the same hand-writing as these, if my eyes do not deceive me; and i shall put it into the hands of persons who have known mr. de. berenger long, and they shall say whether it be his hand-writing or not. gentlemen, if it be not his hand-writing, which i must assume, i say the whole of that dover case falls to the ground; because the main sheet-anchor of the whole of the dover case is that paper. why do i say so? because all the witnesses who have come from the ship inn at dover, marsh, gerely, edis, (wright is not here, being ill;) these men one and all, speak to the person called du bourg, as being the person who sent this letter, as aid-de-camp to lord cathcart; they all say it was this man, as they believe, that wrote that letter, and sent it off to admiral foley. i say, gentleman, that story, as applied to mr. de berenger, falls to the ground, if that letter was not the hand-writing of mr. de berenger; inasmuch as the letter is now supposed to be traced into the hands of admiral foley, from the ship inn at dover, by the conveyance of the little boy. if mr. de berenger was not the writer of it, then mr. de berenger was not the man who was at that inn. gentlemen, it was said by mr. gurney in his opening, that he should call the landlord and landlady of the house at which mr. de berenger lodged, to prove that he did not sleep at home that night; but they have proved no such thing. i expected, from my learned friend's statement of it, and i am sure he expected it, or he would not have so stated it, that they would have proved that. the man says, he does not know who comes in and who goes out, being the clerk of a stockbroker, and being a good deal out; he says, mr. de berenger comes in without their interference; he has his own servants; and all he reasons from is the fact, that he did not hear him blow his french horn at eight or nine o'clock on the monday morning, which i shall prove to you he could not do, for that mr. de berenger went out to lord cochrane's at eight o'clock. these people do not swear, that he did not sleep at home; all they say is, that they do not know whether he was at home or not. now, gentlemen, upon the subject upon which i am about to address you, i do not think it absolutely necessary to go into it; and i should not at this hour in the morning call evidence, but in a matter so highly penal as this is, and where i am placed in so delicate a situation, and in which, thank god, i can very seldom be placed, i do not think it right to act on my own judgment, where my client assures me that he was not the man, and is an innocent person; and that he is determined (because he knows perfectly well that what he says is the truth) to have his witnesses called; he shall have those witnesses called, for i chuse to have no responsibility cast upon me that does not belong to my situation. gentlemen, i shall prove to you most completely that which will dispose of the case, if it is believed. i trust i have already shewn, that it is a case depending upon such frail testimony, as it stands, that it is not worthy of any degree of credit. but i am instructed, that i shall be able to call five or six witnesses, who all saw this gentleman in london, at an hour which was impossible, consistently with the case for the prosecution, and who have no interest, and had better means of knowledge than those who have been called before you. gentlemen, i do not mean to say those witnesses who have been called before you have been perjured; but i mean to say, they had not the same means of knowledge with my witnesses; and that, except one of them, or two at the utmost, they had not the day light to assist them in observations they made upon this traveller. be so good as to recollect the circumstances under which he was supposed to have come to dover; he is found knocking at the door of the ship inn, about one in the morning; the man belonging to the opposite house, having been carousing there at a most astonishingly late hour for a reputable tradesman, in the town of dover, the hatter, the cooper, and the landlord, being sitting together, hear a knocking at the door; and they find a man in the passage of the house. whom do they find there? a man dressed in the manner you have heard described; but the person who sees him, and holds the candle in the passage, has a very short conversation with him; the whole time he saw him did not exceed five minutes, and in that time he went up to call the landlord; he put the pen, ink and paper, into his room, and then he left him; he did not see him without his cap, and yet he swears he is the man; and he is not singular in that, for there are many others swear to the same. gentlemen, it is a prejudice my client has to encounter, that we have been engaged in this case seventeen hours; and that my learned friend, mr. gurney, who opened the case, was in the full possession of his powers, and that he has in a measure forestalled your minds by the evidence he has given, and that the evidence given by me has to eradicate the impressions which his statements and his evidence have made. gentlemen, i put questions to one of the witnesses which his lordship thought were not of any weight, and _per se_ they were not strong; but when we are proving identity every little circumstance goes to the question, aye or no; we had some witnesses swearing to a slouch cap, one which comes over the eyes, and another swearing that it was like the coat, _grey_; another that it was a dark brown. if the _fac simile_ is correct, there are discordances in the evidence which raise a suspicion in my mind, a suspicion not that the witnesses are perjuring themselves, but that they had not sufficient means of knowledge upon the subject; and that you are called upon to convict this gentleman of a base and infamous crime, from which, except from the evidence of le marchant, he was to derive no benefit unless the £. was a _bonus_, and that upon the evidence of witnesses, who, however respectable, had very little means of observation; for it was not day light hardly even when they left dartford; and the morning we hear was a foggy morning, and therefore, except shilling's evidence, we have not evidence that this is the man in _day light_; we have no evidence of any persons who saw him in daylight, and identify him as being the person who came from dover to london; shilling's evidence i admit, is, as to his seeing him in day light, and his evidence is extremely strong undoubtedly. gentlemen, i am quite aware, though i have not practised a great deal in criminal courts, that the evidence of an _alibi_, as we call it, that is evidence to prove that the person was not upon the spot, is always evidence of a very suspicious nature; it is always to be watched therefore; but i am sure that i shall have his lordship's sanction for this; that if the witnesses to be called have all the means of knowledge upon the subject, if the generality of them have no interest at all in the matter of discussion, and if they prove the _alibi_ satisfactorily, there is no evidence more complete than that of _alibi_, and that _alibi_ will produce advantage in favour of the person who sets it up, according to the nature of that case which is made against him; and if it be merely circumstantial evidence, although that is in some cases much stronger than positive testimony, yet if the evidence against that person is chiefly mere evidence of identity of person, i say that the proof of the _alibi_ will receive stronger confirmation, if those witnesses who undertake to identify have not had sufficient means of knowledge upon the subject. hear then, gentlemen, how i shall prove this case. this person, by the consent of his bail, mr. tahourdin, as i have told you, was continually soliciting for the situation he was desirous of obtaining, for the purpose of going out to america under sir alexander cochrane; he was therefore continually violating the rules; and in order to do that with safety, he used to go down a passage and take water, instead of crossing westminster bridge; because he thought that on westminster bridge he should be more likely to be met by the officers, and so more likely to get to the ears of the marshal, so as to lose the benefit of the rules; he was well known to the usual watermen plying there; and i have two watermen here, who will prove to you that on that sunday morning, which was the first sunday after the frost broke up, so as to open the river thames, which had been shut a considerable time, that on the first sunday after, namely, the th of february, this gentleman crossed at that ferry to go over to the westminster side. gentlemen, i shall prove to you, that in the course of that day he was at chelsea; he had been known at chelsea, having lived there for a considerable time before he was in the rules of the bench. i will prove that he had called at a house which i will not name, because we shall have that from the witnesses from whence the stage coaches go; that the ostler at that house perfectly well knew him, and that he knew his servant; that he told him the coach had gone off at an early hour in the evening, and there was no coach to go for some time; he will tell you, that he knew this gentleman, and is positively sure that he was there. i shall prove that he went to another house in the course of that evening; and i have two or three of the members of that family who saw and conversed with him between eight and nine in the evening of the sunday, so that by the course of time, it was absolutely impossible that he could have been at dover by one in the morning, if he had been at this gentleman's house at eight in the evening. i shall prove that after that he went home to his lodgings. i shall prove that he slept in his lodgings; that his bed was in the morning made by his maid servant; that he constantly slept at home, and that he did that night. i have his servants here who will prove these facts. i allow that he went out that morning, and went out in regimentals, which they will describe to you, and went to lord cochrane's upon the errand i have described to you. now, gentlemen, in addition to that, there will be the evidence to be given by my learned friend, mr. serjeant best, which i have a right, as far as it applies to mr. de berenger, to pray in aid for him. does it not immediately go to shew, that it is impossible, but that these persons who have been examined for the prosecution, must have been mistaken? i do not ask you to presume that these persons have knowingly said what is not true; but this made a great noise, and persons were sent to see mr. de berenger, and from some similarity of person believed him to be the man. i do not indeed believe the account given by one of the witnesses, mr. st. john; he told a story the most singular, that he being the collector of an irish charitable society, with no other means of livelihood, found himself at dover searching for news, by desire of the editor of a newspaper, and he was afterwards on coming up, sent to newgate to see mr. de berenger, who was exposed to the view of every person who chose to look at him. mr. de berenger was fixed upon as the man, and you are asked to presume that he fled, because he knew he was the man. gentlemen, you will take all these circumstances into your consideration, and they will account for the mistake in the testimony of the witnesses for the prosecution; but st. john tells you, that he found himself by _accident_ at westminster. i do not call that an accident at all, for it appears that he walked down to westminster to see his person; he went and took a good view of his person, when he was standing upon the floor of the court of king's bench, pleading to his indictment, for being in custody he must be brought into court to plead to it; this fellow says, he was not in court, but he put his head within the curtain, where he could see this gentleman, he heard the officer read to him, and he says that he answered something; i do not care whether he heard what passed, he saw sufficient to know that he was the person in custody. i cannot, under these circumstances, believe this fellow when he tells you, that he went by _accident_ down to westminster, for it appears evidently that he went by _design_. i say there is a readiness and a desire on the part of the stock exchange, to follow this up, i think, with an improper spirit. gentlemen, we have had this case dressed up to-day; and it has been attempted to induce you to believe, that the transactions of the stock exchange were all laudable. gentlemen, i say they are infamous; but my learned friend would persuade you, that all the infamy rests upon those who deceived these poor creatures. it is very true, as his lordship says, the circulation of a false report is not innocent, for that may operate against you or me going fairly to buy stock; but i think there has been an excess of zeal on this business; some of these witnesses were carried to mr. wood's, at westminster, and they all fixed upon mr. de berenger, not corruptly, but in consequence of being carried there, and his being pointed out as the man by mr. lavie and some of his clerks; they come readily enough and fix upon him; the deaf man not so easily, but at last he did it too; and it struck me, the question i put to that deaf man was extremely relevant. i cannot tell by a witness's face whether he is merely an actor or not, and especially when my instructions tell me he is mistaken; i wished therefore to know, whether he was not looking round the court to give it the air of probability, and whether he had been standing behind, so as to see the others point out mr. de berenger, whom they all knew, because most of them had seen him since that time; some of them had not i admit; he is a soldierly-looking man, and a man likely from the description to be fixed upon. my learned friend seemed to think that one of the witnesses had not a fair opportunity of seeing his person, in consequence of his holding down his head; the fact was, he was taking notes (for he has taken a very full note); but without meaning to do anything improper, i said, hold up your head, and he did so immediately; his recognizance was to appear here to-day, not fearing to have all enquiry made respecting him and as it appeared to me; he did not on any one occasion attempt to conceal his person from their observation, i do say, gentlemen, that the means of knowledge of these witnesses are so slight, that if i call witnesses to prove, not by vague surmise, never having seen him before, that he was in their society and company that evening so late, as to render it impossible that he should have been at dover that night. but supposing that the evidence of _alibi_ should not be satisfactory, it then comes back to the other observations made in the prior part of the defence. gentlemen, this is the general nature of the defence i have to make to you. you will, i have no doubt, endeavour to free yourselves from all prejudice infused into your minds; and will come to your conclusion with a desire to do justice. and i trust that you will, in the result of this long hearing, be enabled to pronounce, that this defendant, for whom i am counsel (not meaning by that to exclude any of the rest, but he is the only one committed to my care) is not guilty of the charge imputed to him. mr. serjeant pell. may it please your lordship, gentlemen of the jury, my two learned friends, who have preceded me, mr. serjeant best and mr. park, have both stated to you the peculiar difficulties under which they laboured, in consequence of the great fatigue which they had both undergone. i am sure you will agree with me, that that topic, so pressed by them, will come with still greater force from me; for, as the night advances, the fatigue becomes greater, and the mind more exhausted. gentlemen, it is under the full persuasion that you and his lordship are also much oppressed with fatigue, that i can venture to promise you my address will not be very long. but i trust, that considering the point which it will be necessary for me to expatiate upon, you will be ultimately of opinion, that my address, although not long, is still effectual for the interest of my clients. gentlemen, i stand in a most peculiar situation, because, upon the notes of the noble lord, it is distinctly proved, that two of the persons for whom i am counsel, mr. holloway and mr. lyte, have admitted themselves to be guilty of that, which no man can for one moment hesitate to say is extremely wrong. gentlemen, i think it is also sufficiently proved, that sandom, the third person for whom i am counsel, was in the chaise which was driven from northfleet to dartford, and from dartford to london; and on my part, i should consider it a most inefficient attempt, if i were to attempt, for one moment, to persuade you that mr. holloway and mr. lyte, together with mr. sandom, have not been most criminally implicated in this part of the transaction; but, gentlemen, although i admit this in the outset, and very sincerely lament, that men who have hitherto maintained a very respectable situation in life, should have been tempted to involve themselves in so disgraceful an affair; yet i think, unless i am mistaken in my notion of law, as applying to that record on which you are to give your judgment, it will be found that they are entitled to your acquittal. gentlemen, i feel myself under a difficulty, also, in another respect. i must differ from all my learned friends who have preceded me in this trial, i mean, my learned friend mr. gurney, of counsel for the prosecution; my learned friend mr. serjeant best, as counsel for mr. cochrane johnstone, mr. butt, and lord cochrane; and mr. park, as counsel for mr. de berenger. i am not here to find fault with the committee of the stock exchange for prosecuting this inquiry; whether that committee is composed of honourable men or not, is to me a matter of perfect indifference. if they have been actuated by a sincere desire of bringing to justice persons who have been guilty of criminal conduct, i, for one, am not disposed to complain of them. gentlemen, i cannot agree with my learned friend mr. gurney, or my learned friend mr. serjeant best, in what, in different parts of their address, they stated to you as being the leading features of this prosecution; for my learned friend mr. gurney, in the outset of his address to you, stated, that what he called the northfleet plot was only a part of the dover conspiracy--was subsidiary to it. i think his expression was, that they both formed different parts of one entire plot, and that those who were guilty of one must be taken to be guilty of both; although mr. holloway, in his confession, had acquitted lord cochrane and mr. cochrane johnstone, of having any part or share in the northfleet conspiracy. now, gentlemen, i will state to you in the outset, that i mean to consider the case in a different point of view. i have not the slightest doubt on earth, that what was done by sandom, lyte, and m'rae, when they left northfleet on the morning of the st of february, was altogether unconnected, and was utterly unknown to, that person, whoever he was, who came from dover, and that he had no sort of connection with it. gentlemen, if i am right in establishing this point; if you shall ultimately be satisfied that mr. holloway, mr. sandom, and mr. lyte, who i admit were concerned in that part of the business, were altogether unconnected with the person who came from dover, and who has been stated to-day to be involved with lord cochrane and mr. cochrane johnstone, i apprehend that the three defendants for whom i appear cannot be found guilty. that my learned friend mr. gurney considers the case in this point of view is beyond all question, for he opened it to you as part of this case, that what he called the northfleet conspiracy, was a part of the dover plot, and was in furtherance of it; and he not only has so stated it in his address, but, as i read the record, it is so stated upon the record; for, in the very first count of the indictment you are now impanelled to try, it is set forth, that sandom, m'rae and lyte took the chaise from northfleet, and so passed on to london, in furtherance of that plot which was originated at dover. gentlemen, i submit to you, therefore, on behalf of these gentlemen for whom i appear, that their guilt or innocence with respect to this particular trial will depend upon this circumstance;--did they form, or did they not form, parts and members of that single plot in which it is supposed the three or four other gentlemen were concerned? gentlemen, i certainly have not the good fortune to appear for men of the high rank of those on whose behalf my learned friends mr. serjeant best and mr. park have addressed you. i can introduce no such eloquent topics as those which my learned friend mr. serjeant best has touched upon. i cannot illustrate the character or the situations of life of the gentlemen for whom i appear, with the terms in which mr. park has spoken of his client de berenger. i know of no claims to honour from any ancestry to which they can justly entitle themselves; they are men in a respectable, but in a humble line of life, compared with the other defendants upon the record; but i know, that it is not upon that account that you will be less disposed to give a ready and a willing ear to any topics that may be urged in favour of their legal innocence. gentlemen, as i followed the evidence, there was but one point of coincidence, in which these persons who came from dartford to london, could be at all connected with the person who came from dover, and it was in the very slight circumstance of the chaises driving to the same place; and my learned friend, mr. gurney, in furtherance of that which he submitted to you as against holloway, sandom and lyte, as an ingredient, and a necessary ingredient, in their conviction, stated to you in the opening, that he should prove they went to the same place. i could not but be struck with that circumstance, because i knew it was one from which a connexion might fairly be felt; i was therefore anxious to watch the evidence which applied to that part of the case, and so far from finding that the person who came from dover, under the name of du bourg, went to the marsh gate by design, i find that he went there altogether by accident; for by the evidence of shilling, the person who drove him, if i do not mistake it altogether, he first proposed to drive him to the bricklayers arms in the kent road, and when he got there he found there was no hackney-coach, and then to use the very expression of the witness, "i told him there was a stand at the marsh gate, and if he liked to go there nobody would observe him;" so that it is quite obvious, that the supposed colonel du bourg went to the marsh gate, in consequence of having been driven by the suggestion of shilling. i admit that sandom, lyte and m'rae went there by their own direction; but it is equally clear that du bourg went there in consequence of there being no hackney-coach at the bricklayers arms, and in consequence also of shilling advising him to go there for the purpose of obtaining one. the only circumstance therefore in the cause, which shews a coincidence of plot between the one at northfleet and the one at dover, is this circumstance respecting the carriages driving to the marsh gate; and it will appear upon his lordship's notes, as with reference to du bourg, the going of du bourg to the marsh gate at lambeth was purely accidental. gentlemen, my learned friend, mr. gurney, was so aware of the necessity of proving a connexion between these parties, that he stated another circumstance; and i think, in the course of his address, those were the only two which he adduced, for the purpose of shewing that there was any fair probability that could lead the court to believe that the person assuming the name of du bourg, and holloway, sandom, m'rae and lyte, had concurred in any part of this most scandalous transaction. my learned friend stated, that he should shew an intimacy between mr. sandom and de berenger, when both of them were prisoners within the fleet prison, and that they became acquainted there. _mr. gurney._ my learned friend has misunderstood me, i said they were prisoners at the same time; that was the extent of my statement. _mr. serjeant pell._ i am very much obliged to my learned friend; i am by no means disposed to mis-state him; i find he did not state it quite so strongly as i had supposed, but the inference he meant to raise in your minds, was, unquestionably, that both being prisoners at the same time within the walls of the same gaol, it was fair to conclude, considering the other parts of the case, that an intimacy had existed between them. now let us see how that part of my learned friend's statement is made out.--mr. de berenger was unfortunately a prisoner within the rules of the king's bench prison in the month of february last; he had been so for some time. i think it does not exactly appear, with respect to mr. sandom, according to the evidence of mr. broochooft, the officer, who was called for that purpose, when or for how long mr. sandom first went there, or how long he continued there, but far from sandom's being a prisoner in that gaol during the time when mr. de berenger was confined there, my lord will find upon his notes, as given by a person of the name of foxall, that sandom had lived at northfleet for nine months before he sent for the chaise on the st of february. you observe therefore, gentlemen, that there is not the slightest reason to believe, as far as the evidence extends, that either mr. sandom, mr. holloway, or mr. lyte, had any knowledge or acquaintance with the other defendants. but, gentlemen, i will mention another circumstance, which puts that out of all doubt:--i allude to the confession of mr. holloway, a confession made in the presence of mr. lyte, and with his concurrence. he admitted that he had used means for the purpose of inducing a persuasion that a revolution had taken place in france, which unquestionably at that time was not true. how stands the circumstance? there was a person of the name of m'rae, who was spoken to by vinn, the first witness called by mr. gurney to this part of the transaction. vinn told a most extraordinary story, and i will venture to say, that with respect to mr. vinn, if the case of all the defendants had stood upon the testimony of such a man as that, no human being, who had been accustomed to watch the manners and the terms which witnesses use in courts of justice, could have believed him for a moment. his story was this.--that on the th of february, m'rae met him at the carolina coffee house, and he proposed to him to frame a conspiracy for the purpose of raising the funds; and vinn asked him if there was any moral turpitude in the transaction. no human being could doubt for a moment, that such a transaction would be deep in moral turpitude. he says, that he told him he would as soon engage in a highway robbery, as in such a transaction; and then immediately he told him, that though he would not himself, he could find somebody else who would engage in that dirty office. can any human being believe such a story as this? what passed between him and m'rae upon that occasion, i am unacquainted with; but i know enough of your sober judgment, to be sure of this, that no conversation which vinn states to have taken place between m'rae and him, when holloway, sandom and lyte, were not present, will be by you permitted to affect their interests. now, gentlemen, the next stage in this transaction, in which mr. m'rae appears, is, i think, a very singular one; he appears in a letter, i think, from mr. cochrane johnstone, to be the person proposed, who, for £ , would make known the whole of this affair. it is a very singular part of this most curious story. this letter is sent to the stock exchange; m'rae proposes, that he shall be the person who is to detect the whole of this scandalous transaction, and he proposes to himself the great reward of £ , . only observe, what mr. bailey has stated to you took place on holloway's being acquainted with this circumstance. holloway, knowing that m'rae had been concerned in this, which i shall term a second plot;--knowing that m'rae could not communicate any thing, at least as far as holloway had reason to believe, that could at all affect that which was the greater object of the committee of the stock exchange, namely, the conviction of lord cochrane, mr. cochrane johnstone, mr. butt, and mr. de berenger, for that is the end and aim of the present prosecution; and as to the clients for whom i appear, mr. holloway, mr. lyte, and mr. sandom, i firmly believe, if the stock exchange had not been of opinion they would have derived some benefit from the conviction of my clients, they would no more have been put forward on the present occasion, than i or any of my learned friends should have been. no, gentlemen, the other defendants are the game the prosecutors are attempting to catch, and it is only for the purpose, in some shape or other, of confusing and confounding two separate and distinct parts, with a hope that in some degree the transaction of holloway, sandom, lyte and m'rae, in reference to the journey from northfleet, on the st of february, may be connected in your minds with the other defendants, that they are introduced upon the present record. gentlemen, do me the favour to recollect what mr. baily has stated to-day. it was this;--mr. holloway, finding there had been some proposition on the part of m'rae, to make known all that he was acquainted with in the transaction, and that m'rae had demanded the sum of £. , , before he would be induced to relate that which he knew, mr. holloway applied to the committee of the stock exchange, and stated this to them, in the presence of mr. lyte;--"i admit that we were concerned in that affair when the chaise went from northfleet to dartford; i admit we were concerned with those persons when they came through london (and it would be vain and most impertinent if i were to take up your time to deny it), but i deny that we knew any thing of the other parts of the business; we are altogether ignorant of it." now, gentlemen, is mr. holloway to be believed in any part of that which he said? i take it my learned friend will contend, that he is to be believed in all that made against himself, and all that made against lyte, who was present; but is he not to be believed in the other part of his story? will my learned friend contend, that he can take the one part, and reject the other? i am satisfied he will not. if you take the whole, then it appears, that holloway and lyte admitted that sandom was privy to their plan, but that they were altogether unconnected and unacquainted with the business which took place at dover, and had no more to do with mr. cochrane johnstone, mr. butt, lord cochrane, or mr. de berenger, than any of you whom i have the honour of addressing. gentlemen, i should have supposed, in a prosecution of this kind, that if there had been any connection between the two plots, it would have been traced in some way or other; you observe the minute points which have been made in every other part of the prosecution. there has been labour unexampled; witnesses brought from the most distant parts of the kingdom; no expence spared; every thing done that could be done to make good the charge against four of the defendants upon the record. is it not a most extraordinary thing, if holloway, lyte and sandom, were at all connected with lord cochrane, mr. cochrane johnstone, or the two other gentlemen, that no trace can be found, no clue can be discovered, that can connect the one with the other. under circumstances so singular as these, there being not only no evidence of any connexion, but there being an express contradiction on the part of holloway and lyte, and the only connecting circumstance being explained away, i mean as to both the chaises driving to the marsh gate, i think you will be of opinion with me, that the two plots are altogether distinct from each other, and that my clients, although morally guilty, must be acquitted upon the present charge. gentlemen, i cannot but feel, that a kind of prejudice against my clients may have arisen in your minds; i am not only surprised at it, but i should have been surprised if it had not found its way there. here is a plot conducted in the most artful and most scandalous manner;--persons of the highest authority imposed upon, dresses bought, and the whole drama got up with the greatest skill. god forbid, that i should for one moment insinuate that it was accomplished by any of the other defendants upon the record. i am bound to believe, from the character of all these gentlemen, that they are not guilty; but however this may be, still we get back to that which forms the main feature of my defence for these three gentlemen. are they, or are they not privy to this scheme? gentlemen, i was observing to you, that some prejudice must necessarily arise in your minds; it is my case that there were two separate plots; they are, as far as the evidence extends, two different transactions on the same day; a prejudice, however, must arise in your minds, because when you find both these transactions point to producing the same effect, you would naturally be disposed to believe, that all the persons who were concerned in both, were equally acquainted with both. you well remember the strong disposition there was at that time, for every person, those at least who were disposed to do unjust and unfair things, to invent such reports as should enable them to sell their stock at an unreal price; and i submit to you, that supposing holloway, sandom and lyte, had intended to do so, there is nothing very singular in their doing it on the day when the other transaction took place. i am fortified in the opinion, that the one plot is not connected with the other, because i find another part of the evidence which disconnects them altogether, and it is this;--from the evidence of the broker who was called to prove the sale of stock, or the directions to sell stock, on the st of february, (a person of the name of pilliner) it turns out that holloway did not give him any directions to sell his stock till the middle of the day. now the middle of the day was the time when the chaise drove through the city of london. if holloway had been connected with those who were engaged in the first plan, i think you will be of opinion, that he would have taken advantage of the most beneficial state of the market, and sold his stock as early as when he found that conspiracy had produced its intended effect upon the funds, so that, in addition to other circumstances, this also shews that holloway had no connexion with the other transaction. gentlemen, i cannot but be struck at the singularity of mr. m'rae's withdrawing from the field of battle. m'rae certainly has performed a very singular part upon this occasion; he proposed to sell himself for £. , ; he would have had the stock exchange to believe, that he had been let into the secrets of my lord cochrane, mr. cochrane johnstone, mr. butt, and mr. de berenger;--the first object he had in view, was to persuade the stock exchange that he knew the whole of their concern in the transaction. a pleasant sort of a gentleman, to ask the sum of £. , , to induce him to tell all that he knew, when no human being can doubt that all m'rae knew was, that which has been proved by the witnesses, as to sandom, lyte and holloway, namely; that m'rae was in a chaise which passed through the city of london, coming from northfleet. this man, who has the audacity to propose the receiving £. , , turns out to be a miserable lodger in fetter-lane, who after he had carried into execution the whole of his part of the conspiracy was rewarded--but how? was he rewarded as he would have been by such wealthy persons as the gentlemen whose names stand upon this record? if they had engaged m'rae in this scandalous affair, do you believe they would have left him on the monday morning, with nothing but a £. note in his pocket? it appears, by the woman with whom he lodged, that he was before in a state of abject poverty, and that afterwards he was seen with a £. note, and that he bought a new hat and a new coat--and this is the man who proposes to receive £. , from the stock exchange to tell all he knew. gentlemen, i think i am not very much deceived myself, if i say, that you will be of opinion, that a man who was in the situation of m'rae, was not very likely to have known of transactions which would have involved the four first defendants upon the record, in such a serious prosecution as that under which they now labour; and it is not the least singular part of his conduct, that he makes no defence to-day. now, gentlemen, you observe the manner in which (subject to my lord's correction) i put the defence of the three defendants for whom i appear. i have stated to you, that holloway and lyte have admitted themselves guilty of most immoral conduct, for i never can believe that such transactions as these, let them be conducted by whom they may, are not immoral in the highest degree. holloway, at all events, has since done all he can to make amends; he has confessed his guilt; he has come forward with lyte, knowing and feeling that they had done wrong, with a view to protect the stock exchange against giving that monstrous sum for an imperfect discovery. had holloway or lyte been concerned with any of the other defendants on the record, i submit there is the strongest reason to believe, that when he confessed his own guilt, he would not have been backward in speaking of theirs. he was not aware of the effect i am giving to his defence when he made it; and if he has done no more than that which he has stated, i submit to you, under his lordship's correction, that you cannot find him guilty; and i submit to you, upon the reasoning with which i commenced my address to you, that whatever sandom, holloway and lyte did, is not at all connected with what du bourg, or the person so calling himself, did; that what they did is not connected with what the other three defendants on the record are supposed to have done; that there is not only no connexion proved between the two, but as far as the evidence extends that connexion is negatived; and then i submit to you, if you are of that opinion, these persons must be acquitted; because, as i apprehend, two distinct conspiracies included in one count, both being different offences, cannot be permitted to be proved in a court of justice. crimes must be kept separate; persons must know what the charge is, on which they are called upon to defend themselves, and miserable would be the situation of persons charged with the commission of crimes, if one crime was connected with another totally distinct and separate from it, and both were brought under one and the same charge, to unite in the same defence. gentlemen, i have stated to you, that the gentlemen for whom i appear are in a very humble situation in life. mr. holloway is a wine merchant, mr. lyte was formerly an officer in a militia regiment, mr. sandom is a private gentleman of small fortune;--they are none of them, by their situation in life, apparently likely to be connected with any of the other defendants upon the record. what is there that should lead you to believe they are so? mr. holloway and mr. lyte stand under a sufficient load of guilt already; they have admitted themselves guilty of what they did on that day. will you, therefore, because they admitted themselves guilty of one part of the day's infamy, put upon them the infamy of the whole? will you do this, because the two plots happen to take place on the same day? can you not, in your recollection, find, in former times, the same sort of coincidence? do we not know that such things have happened; that plots of a similar description, carried on by different parties, but having the same end, have taken place on the same day? have there not been much more curious coincidences than chaises driving to the same point of destination, and the persons in the carriages leaving them there? have juries ever been satisfied that such coincidences should lead to proving a connection with plots in other respects dissimilar? gentlemen, it is upon these grounds, therefore, i submit to you, these three defendants are not guilty of the offence charged upon this record. i shall trouble you with no witnesses;--there is nothing for me to repel. if i am right in my notion of the law;--if i am right in the persuasion that you can see nothing in the evidence connecting the two plots together;--and if my opinion of the law is sanctioned by my lord, when he shall address himself to you, there is nothing i have to answer for. it is out of my power to prove, by any evidence, that these three persons were not connected with any of the other defendants upon the record; such a negative as that i can never establish, and therefore i can have no proofs. gentlemen, such is the situation in which the three gentlemen for whom i appear stand. i have expressed my sentiments upon the subject as shortly as i could. it is undoubtedly a great misfortune to my learned friends, as well as myself, that we should have been called upon to make our defences, when both you and we are so much exhausted. there is but one other circumstance for me to mention, it is but a slight one;--the person who came up from dover appears to have paid all his post-chaise drivers in foreign coin; there is no pretence for saying that any thing was paid by my clients but in bank of england notes; there is nothing in that respect, therefore, connecting these two parties together; and if they are not connected together, i trust you will find mr. holloway, mr. sandom, and mr. lyte, not guilty of this charge. _lord ellenborough._ gentlemen of the jury; it appears to me this would be the most convenient time for dividing the cause, as the evidence will occupy considerable time, probably. i cannot expect your attendance before ten o'clock. _it being now three o'clock on thursday morning, the court adjourned to ten o'clock._ court of king's bench, guildhall. _thursday, june ._ the court met, pursuant to adjournment. evidence for the defendants. _mr. brougham:_--we will first read the letters which were proved yesterday? _lord ellenborough:_--these are read to contradict le marchant? _mr. brougham:_--yes, they are, my lord; he proved the handwriting himself. [_the following letters were read:_] "glo'ster hotel, piccadilly, th april . "my lord, "although i have not the honour of your acquaintance, i beg leave to address you, to solicit an interview with your lordship, for the purpose of explaining a conversation i had with mr. de berenger, a few days prior to the hoax of the st february last, and which must be interesting to you. if your lordship will condescend to appoint an hour, i will not fail attending punctually at your house, or elsewhere. i have the honour to be, my lord, your lordship's most obedient humble servant, _js le marchant_." rt. hon. lord cochrane, &c. &c. &c. "glo'ster hotel, piccadilly, london, th april . "my lord, "i had the honor yesterday to address your lordship, for the sole purpose of giving you that information you are not aware of; and knowing my letter was delivered (your lordship being at home when it was presented at the door), i beg to say, that i am now justified, from your silent contempt and defiance thereof, _to make my information public_; and which i should not have done before consulting you on that head, my sole wish being to state facts, and not to be considered acting underhand. as i feel exonerated from the last charge, and being in a certain degree called on to give my evidence relative to st february last; and as the rank i hold in society will _give weight_ to my _testimony, with the witnesses_ i shall bring forward on the occasion, i feel justified in the steps i am about to take, nor can your lordship blame me in so doing, understanding the business in question will be brought before parliament on a future day. i am sorry to have intruded myself on your lordship's notice, by addressing you yesterday; but, to be correct, i thought it my duty to inform you by this, what have been and are my intentions. i have the honour to be, my lord, your lordship's most obedient humble servant, _j. le marchant_." rt. hon. lord cochrane, m.p. &c. &c. &c. no. . green-street, grosvenor-square. " , green-street, april th, . "sir, "i should have hoped, circumstanced as i am, and attacked by scoundrels of all descriptions, that a gentleman of your understanding might have discovered some better reason than that of "silent contempt," to account for the delay of a few hours in answering a note; the more particularly as your note of the th led me to conclude, that the information offered to me was meant as a mark of civility and attention, and was not on a subject in which you felt any personal interest. i am, sir, your obedient servant, _cochrane_." colonel le marchant, glocester hotel. "glo'ster hotel, piccadilly, " th april . "my lord, "i ask your lordship's pardon for my letter of yesterday, and which was written under the supposition of being treated with silent contempt. to convince you of the high respect i have for your lordship, i have the honor to enclose to you a statement of what i know relative to the st february; and i also now declare solemnly, that no power or consideration shall ever induce me to come forwards as an evidence against you, and that all i know on the subject shall be buried for ever in oblivion. thus much i hope will convince you i am more your friend than an enemy; as my testimony, corroborated by the two officers, would be of great import, not (believe me) that i myself doubt in any wise your lordship's affidavit, but de berenger's conversation with me would to your enemies be positive proof; as for my part, i now consider _all that man told me to be diabolically false_. if my conduct meets your approbation, can i ask for a reciprocal favour, as a temporary _loan_, on _security_ being given.--i am just appointed to a situation of about £. , a year, but for the moment am in the greatest distress, with a large family; you _can_ without risk, and have the _means_ to relieve us, and i believe, the _will_ of doing good. necessity has driven me to ask your lordship this favour. whether granted or not, be assured of my keeping my oath now pledged, of secrecy; and that i am with the greatest respect, my lord, your lordship's most obedient, humble servant, _js le marchant_." right hon. lord cochrane, &c. &c. &c. _js le marchant's_ statement and conversation with _r. de berenger_. "i became intimately acquainted with de berenger about eighteen months ago, and have continued so till a few days prior to the hoax of st february last. he was in the habit of calling on me at the glo'ster coffee house, piccadilly; and did so frequently, between the th and th of last february. he generally called late in the evening, saying he had dined with lord cochrane: once he called about noon, stating he had breakfasted with his lordship, had been with him on particular business, and was to return to dinner: he mentioned being very intimate with lord cochrane and the hon. c. johnstone; that they were kind friends to him, with whom he frequently dined. in his apartments, in the rules of the king's bench, he shewed me the devices he was drawing for lord cochrane's lamp invention. the last time he called upon me, it was very late; he appeared elated somewhat by drinking, having (as he said) dined with his lordship; and in consequence of there being company, he could not then shew lord cochrane a copy of a memorial he had written to the duke of york, praying to be given field officer's rank, and to be appointed to be sent out under lord cochrane, for the purpose of instructing the marines in rifle exercise; that his lordship was very anxious to have him on board of his ship; that he objected going, unless with field-officer's rank, hoping to procure a majority; and that lord cochrane had said he would try and get him a lieutenant-colonelcy. de berenger shewed me his memorial to the duke, the head of which not being in propriâ formâ, i corrected; it was very long, and related to the losses his family had sustained as american loyalists; also on the cause of his first coming over to england. on my asking him, if the duke of york was to appoint him, how he could extricate himself out of his difficulties and leave the bench, he answered, '_all was settled on that score; that in consequence of the services he had rendered lord cochrane and mr. c. johnstone, in devising, whereby they had and could realize large sums by means of the funds or stocks, lord cochrane was his friend, and had told him a day or two ago, that for those services his lordship had, unknown to him (de berenger) kept a private purse for him, placing therein a certain per-centage on the profits lord cochrane had gained through his stock suggestions; and that now this purse had accumulated to an amount adequate almost to liberate him from the bench._' when he said this, he appeared overjoyed, and said it in such a manner as to make me credit him. he remained with me this said evening, drinking hollands and water, till near two o'clock in the morning. on his leaving me, i thought of the conversation, especially that part which related to the funds, and conceived, from the numerous stock-jobbing reports, whereby the funds raised or were depressed, that he must have been deeply concerned in it. a few days after the st of february, it was whispered that lord cochrane was concerned in the hoax. immediately, de berenger's former conversation with me forcibly occurred to my mind, and i then mentioned to two friends, with whom i was in company, (_and this prior to lord cochrane's affidavit, or de berenger's name being mentioned_), that i would lay my existence de berenger was the sham colonel de bourg, and i stated my reasons for supposing so. recollecting myself afterwards, i made them, as officers, pledge their oath and word of honour, that what i had said on the subject they would never repeat, or even hint at; and i am most fully persuaded they have not. the same day, but prior to the conversation above mentioned, the hoax being the topick in the coffee-room, i said, i thought i knew more than any one relative thereto, except the parties concerned, but i never mentioned any name whatever; yet some days after, i received two anonymous twopenny-post letters, recommending my giving up my information, either to ministers or the members of the stock exchange committee; that i might depend on their secrecy, and an ample reward, in proportion to my report: of course these letters were left unnoticed. as soon as i suspected de berenger to be colonel de bourg, i called twice on him, but could not get admittance; i also gave one of the officers above alluded to, a letter of introduction to de berenger, for him to gain information on the rifle manoeuvres: he called; was not admitted; left the letter; and, as well as myself, has heard nothing since of de berenger. "to the whole of this i can solemnly make oath; and i am sure i can bring the two officers in question to swear to what i said to them, and _the time when_, although i have never since spoken to them on that subject. _js le marchant._" _the right honourable lord viscount melville sworn._ _examined by mr. scarlett._ _q._ your lordship is acquainted, i believe, with admiral sir alexander cochrane? _a._ i am. _q._ i believe that sir alexander cochrane has been lately appointed upon a distant service? _a._ he has. _q._ does your lordship recollect any application made to you by sir alexander cochrane, on behalf of mr. de berenger? _a._ i recollect sir alexander cochrane, several times, more than once i am certain, applying to me, that mr. de berenger might be allowed to accompany him in his command, to remain with him on the north american station, to which he was appointed. _q._ does your lordship recollect about what time those applications were made? _a._ i do not recollect as to the precise time, but it was a short time before sir alexander cochrane sailed upon his command. _q._ does your lordship recollect about what time sir alexander cochrane sailed? _a._ i think i should say about five or six months ago; but i am not at all positive. _q._ does your lordship recollect the particular service that sir alexander cochrane recommended the gentleman for? _a._ sir alexander cochrane was desirous that this gentleman should accompany him, for the purpose of instructing, either a corps to be raised in that part of the world, or the royal marines, in the rifle exercise; and afterwards, when sir alexander cochrane wished that an officer of engineers should accompany him, and when i stated my knowledge, from other circumstances connected with his majesty's service, that it would be difficult to give him that assistance, from the small number of engineer officers that could be procured, sir alexander cochrane mentioned, that as an engineer officer, he would be quite satisfied with mr. de berenger. _q._ does your lordship recollect, whether any particular rank was necessary or usual to accompany such an appointment, or whether it was solicited by sir alexander cochrane? _a._ i think there was, but i am not positive; i recollect perfectly explaining to sir alexander cochrane, that as far as related to his majesty's naval service, i could not agree to the appointment; and i recommended to sir alexander cochrane to apply to the secretary of state, or the commander in chief, stating, that if they agreed to it, i should have no objection to baron de berenger's accompanying sir alexander cochrane. _q._ was lord cochrane appointed to a vessel to join sir alexander cochrane afterwards? _a._ he was. _q._ the tonnant? _a._ yes; i think he was appointed before sir alexander cochrane sailed; but of that i am not positive. _q._ before sir alexander sailed to join him upon that station? _a._ yes; i am not quite positive about that, but it was very nearly about that time. _mr. park._ i had my lord melville as a witness in my brief, not knowing that my friend would call him; i should have called his lordship to these facts, if my friend had not. _lord ellenborough._ your lordship has no personal knowledge of mr. de berenger? _a._ no. _colonel torrens sworn._ _examined by mr. brougham._ _q._ you are secretary to the commander in chief? _a._ i am. _q._ do you remember any application being made in the department with which you are connected, in behalf of captain de berenger? _a._ i do. _q._ about what time was that? _a._ it was in the latter end of december, or the beginning of january. _q._ do you recollect by whom the application was made? _a._ sir alexander cochrane. _q._ what was the purport of it? _a._ sir alexander came to me twice, i think, if not three times, to urge the appointment of mr. de berenger to go to america, for the purpose of applying his talents as a light infantry officer, to the service on which sir alexander cochrane was about to embark. _q._ were any difficulties started to this application? _a._ great difficulties. _q._ what objection was made to it? _a._ i represented---- _lord ellenborough._ i do not know to what point this applies? _mr. brougham._ merely that it confirms the statement made by lord cochrane, and shows a connexion between the different parties, consistent with that statement. _lord ellenborough._ it shows that he was acquainted with sir alexander cochrane, and that he recommended him to the appointment; we are not trying the propriety or impropriety of the orders of government? _mr. brougham._. no, my lord; but lord cochrane's statement refers to the difficulty itself. _lord ellenborough._ but what the difficulties were is not at all material; it would be going into that with which we have nothing to do? _mr. gurney._ i do not object to it. _mr. brougham._ i will not enter into it, my lord. in consequence of those difficulties which were felt, the appointment did not take place? _a._ it did not. _q._ but the appointment, in consequence of this application, came under the consideration of the commander in chief's office? _a._ certainly. _q._ were those difficulties, without asking what they were, particularly personal to captain de berenger? _lord ellenborough._ no; that we cannot ask. _mr. park._ it goes to character? _lord ellenborough._ then put the question to character at once; you must not go indirectly into it, if colonel torrens knows his character at all. _mr. park._ you do not know, personally, his character? _a._ i do not, personally. _q._ are you acquainted with the hand-writing of mr. de berenger? _a._ not in the least. _q._ you have never seen him write? _a._ i never did. _q._ have you received letters, purporting to be from him upon subjects of business, and have you answered and acted upon those letters? _a._ i do not recollect, since i have been military secretary ever to have received any. _q._ he had been, i believe, in the rifle corps of the saint james's. _a._ i believe he had. _lord ellenborough._ do you know him, personally? _a._ i know nothing of him, personally. _henry goulburn, esq. m. p. sworn._ _examined by mr. serjeant best._ _q._ you are under secretary of state for the colonial department? _a._ i am. _q._ can you tell us, whether any and what application was made to your department for mr. de berenger going abroad with lord cochrane? _lord ellenborough._ the terms of the application i think we cannot hear; i do not think government secrets (when i say secrets, i mean the detail of them) ought to be stated; we cannot go further than the fact, that an application was made. _mr. serjeant best._ that is all we want, my lord; was any application made to the colonial department? _a._ yes; there was. _q._ by whom? _a._ by sir alexander cochrane. _lord ellenborough._ all this must have been in writing, i should think? _a._ yes, it was. _lord ellenborough._ you have laid this basis, that there had been some application, and that it had been in contemplation, that he should go out as connected with the service. _mr. park._ that is all we wish, we want to show a connexion with the cochranes, without this illicit connexion. _lord ellenborough._ no doubt there had been an intimacy and connexion; whether for good or ill is the question? _mr. serjeant best._ and this confirms in terms the statement contained in the affidavit of lord cochrane. _william robert wale king sworn._ _examined by mr. scarlett._ _q._ what are you by business? _a._ a tin-plate worker. _q._ were you employed, in the course of last summer and this last winter, by lord cochrane, respecting the making him any lamps? _a._ yes, i was. _q._ what was the business on which you were employed? _a._ in the manufacture of signal lanthorns and lamps. _q._ for the use of the navy? _a._ yes. _q._ was it a new sort of lamp? _a._ yes; for which lord cochrane has since obtained a patent. _lord ellenborough._ a patent cannot be proved in that way. _mr. scarlett._ my friend, mr. gurney, has intimated to me that he will not object to it. was his lordship in the habit of coming to your manufactory, while you were so employed? _a._ nearly every day. _q._ do you recollect his lordship being there on the st of february last? _a._ yes. _q._ where is your manufactory? _a._ no. , cock-lane, snow-hill. _q._ do you recollect about what time in the morning he came? _a._ between ten and eleven it was that he was with me. _q._ was there any particular time when he was accustomed to come? _a._ that was about the time he usually came. _q._ do you remember the circumstance of any note being brought to him by the servant, whilst he was there? _a._ yes, i do perfectly well. _q._ were you present when the note was delivered to him? _a._ i was. _q._ what did his lordship do on receiving that note? _a._ he immediately opened it, and retired into the passage of the manufactory; he came into the workshop again, and shortly after went away. _q._ what time of the day was this? _a._ between ten and eleven. _q._ what time had his lordship been at your manufactory before the servant came? _a._ it might be a quarter of an hour, but i cannot speak precisely to that. _mr. park._ how far is cock-lane from grosvenor-square? _a._ i should suppose a mile and a half. _q._ i should think it was two miles, did you ever walk it? _a._ no; i do not know that i have. _lord ellenborough._ that is not of much consequence, i should think. _mr. gurney._ any distance my friends please. _mr. park._ it is of consequence when it comes to eleven o'clock, the stock was all sold by that time. _lord ellenborough._ did you see him read the note which he received? _a._ i saw him read the note in the passage of the manufactory. _lord ellenborough._ he made no observation upon reading it? _a._ no; not that i heard. _a juryman._ did it occupy any time? _a._ no. _lord ellenborough._ his lordship did not make any observation upon reading it? _a._ no; i think only that he said, very well, thomas. _mr. bowering sworn._ _examined by mr. brougham._ _q._ what are you? _a._ a clerk in the adjutant general's office. _q._ do you know whether lord cochrane's brother, major cochrane, was with the army in the south of france, at the beginning of this year? _a._ he is so returned in the returns from the th hussars. _q._ about that time, do you also know, whether or not he was upon the sick list? _a._ he is returned "sick present" on the th of january. _lord ellenborough._ that return did not reach you on the th of january? _a._ no. _lord ellenborough._ when did it reach you? _a._ i do not know; it was received in the regular course, but i cannot state the day. _mr. brougham._ over what space of time did that return extend? _a._ from the th of december to the th of january. _thomas dewman sworn._ _examined by mr. scarlett._ _q._ are you a servant of my lord cochrane's? _a._ yes. _q._ have you been an old servant in the family? _a._ i have been so for about seventeen years. _q._ do you remember carrying his lordship a note any morning in february, to mr. king's lamp manufactory? _a._ yes, i do, perfectly well. _q._ do you remember a gentleman coming to lord cochrane's house in a hackney coach? _a._ yes. _q._ did you know the gentleman? _a._ i had never seen him in my life before that time, nor yet since. _q._ did the gentleman send you with a note to my lord? _a._ yes, he did; he first asked me where he was gone to, and i told him, he was gone to cumberland-street to breakfast, because his lordship told me so. _q._ that was to his uncle's? _a._ it was. _q._ did you go to cumberland-street after him? _a._ i did. _q._ not finding him at cumberland-street, where did you go to seek him? _a._ i came back to our house in green-street, with the note; i informed the gentleman who had written the note, that he was not there; and the gentleman said, pray do you know where he is gone to, or where his lordship could be found? i told him, i thought i could find him, but i thought i might be too late; for when his lordship went out, he said to me, thomas, after you have got your breakfast, follow me, with that globe glass, to mr. king's; i had been there. _q._ you had been to mr. king's before? _a._ yes; on saturday i went with some things, and this globe glass i should have taken on saturday, but i forgot it. _q._ his lordship having told you to follow him with this globe glass to mr. king's, you supposed he might be there? _a._ yes. _q._ was that the reason for taking the note to him there? _a._ yes; i told the gentleman that i most likely should find him at mr. king's, as i was going to follow him there with this glass; whether this gentleman had come or not, i should have gone there with this glass. _q._ you took the note with you? _a._ he took the note from me, and said, i will add two or three more lines to it. _q._ did you take the note to his lordship at mr. king's? _a._ i did. _q._ did you see him there? _a._ i did; i enquired of mr. king's men-- _q._ i did not ask you whether you enquired of mr. king's men, but, whether you saw him there? _a._ i did. _q._ did his lordship read the note in your presence? _a._ he did. _q._ did you leave him there, at mr. king's? _a._ i left him at mr. king's. _q._ had his lordship another man-servant at that time? _a._ not in green-street; no one but me. _q._ where was his other servant? _a._ his other servant was at his lordship's country seat, near southampton, and had been there two or three months before that. _q._ had he discharged any servant? _a._ mr. davis he had given warning to, a month after his lordship was appointed to the tonnant? _q._ when did davis quit him? _a._ davis left him about two days, or three days it might be, before he went into green-street; his time was up then, but he was in green-street. _lord ellenborough._ for what purpose is this? _mr. scarlett._ only to shew that we cannot find this person. _a._ davis was not in his lordship's service at that time, but he happened to be in the kitchen when the gentleman came. _q._ what is become of davis? _a._ he is gone with admiral fleming, to the west indies. _mr. park._ do you recollect what time of the day this gentleman came to your master's? _a._ as near ten as possible; i think a little past ten. _q._ it was so late as that, when he arrived there? _a._ yes. _q._ you were hired to go into the country, in the room of my lord's steward, who was going to sea with him? _a._ yes. _lord ellenborough._ i thought you had been in the family seventeen years? _mr. park._ you had been with lord dundonald? _a._ yes; i was engaged with lord cochrane ever since last february. _q._ you were in lord cochrane's peculiar service only from february? _a._ no. _q._ you said something about having been seventeen years in the service? _a._ in the family. _q._ chiefly with lord dundonald, the father? _a._ yes, and with two of his sons. _q._ you did not return home from king's immediately? _a._ i did not arrive in green-street till near two, having a father living in castle-street. _q._ you do not know whether lord cochrane saw this person at his house when he came back, or how long they were together? _a._ no, i do not. _mr. serjeant pell._ you have lived with lord cochrane several years? _a._ no, in the family; only since christmas with his lordship. _q._ do you know the person of mr. holloway? _a._ no, i do not, not even when i see him. _q._ do you know a person of the name of lyte? _a._ no. _lord ellenborough._ what did lord cochrane say or do when you gave him this note? _a._ he said, "then i must return." _q._ that was all that he said? _a._ yes; i saw him come out of mr. king's. _q._ you know the different members of the family? _a._ yes. _q._ do you know the major? _a._ yes, i attended on the major when he first went into the army. _q._ i mean major cochrane? _a._ the brother of lord cochrane,--the younger brother. _q._ the brother who is in spain or france? _a._ yes, he was there lately. _q._ all that lord cochrane said was, "well, thomas, i will return?" _a._ yes, that was all that he said. [_mr. poole, of the patent office, was called, but did not answer._] _mr. gurney._ i will admit the patent to be of any date you please. _mr. brougham._ it is a patent for the invention of a lamp; the date is th of february. _mr. gurney._ i will take my learned friend's word for that. _mr. brougham._ that is the case on the part of my lord cochrane. _mr. scarlett._ the next witness is to the case of mr. cochrane johnstone. _mr. park._ i shall use him also. _mr. gabriel tahourdin sworn._ _examined by mr. scarlett._ _q._ how long have you known mr. de berenger? _a._ about five or six years. _q._ were you the person that introduced him to mr. cochrane johnstone? _a._ i was. _q._ how long ago? _a._ in may . _q._ you were well acquainted with mr. cochrane johnstone. _a._ i had not been well acquainted with him at that time. _q._ do you know, whether mr. cochrane johnstone, at that time, was in possession of a garden or some premises at paddington? _a._ yes, in alsop's buildings. _q._ which he was desirous of improving? _a._ he was. _q._ what was the occasion of your introducing mr. de berenger to him? _a._ it was mere chance. _q._ did you, or anybody else, to your own knowledge, recommend mr. de berenger as a person who could assist him in planning that place? _a._ i had previously introduced him: i will just state the circumstance that led to my introduction. _q._ i do not know that the circumstance is in the least material. you say the introduction was at first accidental; was there, in consequence of that accident, any connection with them, as to mr. de berenger assisting him in this plan? _a._ yes. _q._ the place was intended to be called vittoria? _a._ yes. _q._ did mr. de berenger employ himself in preparing a plan, as an artist? _a._ he did, which plan is here (_producing it_). _lord ellenborough._ the exhibition of the plan cannot be important, i should think. _mr. scarlett._ it may become material, because mr. cochrane johnstone had paid him for the plan. _lord ellenborough._ whether there were colonades, and so on, or not, i should think cannot be material. _mr. park._ the production of the plan is necessary only, to shew that it is worth the money which was paid. _lord ellenborough._ i only wish to avoid useless particularity; i do not wish to curtail you of the least particle of proper proof. _mr. scarlett._ do you know, whether, in the month of september in the last year, mr. de berenger had made considerable progress in that plan? _a._ he had; he had nearly completed it. _q._ he had not quite completed it? _a._ no. _q._ do you know whether, shortly before mr. cochrane johnstone went to scotland in september, he made him any payment on account of that? _a._ he did, through my medium. _q._ besides the plan, had de berenger prepared a prospectus, with a full and minute description of the objects of the design? _a._ he had. _q._ had he got that printed? _a._ he had; he made him one payment of £. . _q._ do you know that mr. johnstone had got a number of his prospectus, to take with him to scotland? _a._ he had. _q._ in the month of september, last year? _a._ yes, early in october; the first or second of october, i think. _q._ do you know of any payment made by mr. johnstone since that time, upon account of that plan? _a._ yes; it was not made by me. _q._ were you present when it was made? _a._ no. _q._ i understood you to say, you knew that the payment was made? _a._ by letters. _q._ were the letters sent to you? _a._ yes. _q._ they passed through your hands? _a._ yes, they did. _lord ellenborough._ the moment it gets into a letter, that moment the parol statement ends. _mr. scarlett._ certainly, my lord. do you know whether any application was made by mr. de berenger after the plan was completed, for payment? _mr. gurney._ were you present? _mr. scarlett._ or did you convey any draft? _a._ yes, i conveyed a letter, and i spoke several times. _q._ to mr. johnstone. _a._ yes, upon the subject of the paying him for the plans. _q._ without at present alluding to any letter, do you know what was the price that de berenger asked for the remainder of the plans? _a._ no price, i believe, was ever stipulated; no price was ever fixed till february last. mr. johnstone and myself had repeated conversations on the subject of the price of the plans, and as to the remaining sum that he should pay him. _q._ you made repeated applications to mr. johnstone to pay him? _a._ i did, always in a delicate way, not saying, that mr. berenger required so much; but he requested i would take a mode of giving a hint to mr. johnstone, as to the payment; a hint he was always ready to take. _q._ have you any means of knowing what was the money mr. johnstone did pay him? _a._ yes, i think i have. _q._ when was the payment? _a._ in february. _lord ellenborough._ at what time in february. _a._ mr. johnstone sent me a letter on the d of february, enclosing a letter to him from mr. de berenger. _mr. scarlett._ he sent to you, on the d of february, a letter he had received from mr. de berenger? _a._ he did. _q._ did you keep the letter? _a._ i did, here it is (_producing it_). _lord ellenborough._ de berenger's letter was enclosed in one of mr. cochrane johnstone's? _a._ yes. _q._ were the letters by the post? had they any post-mark upon them? _a._ no; this letter was delivered. _q._ the delivery and date were cotemporary with the transaction, namely, about the d of february? _a._ yes, it was on the d of february i received it. [_the letters were read, and are as follow._] " , great cumberland-street, " d february . "my dear sir, "i have received the enclosed letter from the baron; and as i mean to pay him this week for his plans, pray let me know if you have advanced him any money on my account, in addition to the £. , which i paid him on account last year. you will perceive that he wishes a loan of £. , in addition to this sum, and that he offers me as security, colonel kennedy's assignment. i have told him, that if this sum can be of real service to him, i will advance it to him, i will take his note for the amount; and if he is ever able to repay me, good and well; if not, i shall have had the satisfaction of serving him. "as i shall receive the middle of next month a considerable sum of money, you will oblige me very much, if you will have the goodness to let me know, what it would cost me to purchase an annuity for the mother of my three natural children. i wish to settle £. a year upon her, and £. a year upon each of them; her age is , past; my eldest boy will be five years next may, the second boy four years next october, and the third one year next april; they are all healthy. i have in my will made a provision for them, but i wish to alter this mode of settlement for them, from motives of delicacy to my daughter, miss cochrane johnstone, as i would not wish to insert their names along with hers. "i will send you as soon as possible the statement about lady mary lindsey crawford, to enable you to give the answer to the bill in chancery. "pray settle my account with dawson and wrattislaw, as i wish to clear off all demands upon me as soon as possible. whatever sum you say they ought to receive, i will pay them. i hope you are expediting the wendover papers. believe me to be, my dear sir, yours respectfully, _a. cochrane johnstone_." addressed to gabriel tahourdin, esq. king's bench walk, temple. "london, february d . "my dear sir, "i beg to assure you, that i would not have complained to you of the disappointment and inconvenience which colonel kennedy's unreasonable delay of completing the purchase of the share in the oil patent created, had it not reached your ears from other quarters. i cannot agree with you, that his "want of cash" is a sufficient excuse; because in that case, he ought to have stated that instead of artificial reasons. had he completed his contract at the price agreed on, namely, £. , , i should be liberated from this place, and be able to equip myself for the american expedition (which i do not relinquish) without encroaching on any friend. "you have often kindly pressed me to let you know what would satisfy me for the two plans, ms. &c. connected with them. i really have never made a charge of this kind, and am at a loss how to calculate, much less to make a demand; but those who can perceive the labour, time, difficulties and contrivance, which the awkwardness of the ground created, may better be able to say, if £. for every thing, is unreasonable. at all events, it is not a charge, but i leave it to you; and in case you deem it extravagant, am ready to submit the whole to the valuation of any competent person. what regards the drawing, planning and superintending, donovan, and the brass-cutter, in completing the two pieces of furniture, i am determined not to accept any thing for; these you must (forgive a strong word) do me the favour of accepting. "should colonel k. not come to town, i shall feel greatly obliged by your assisting me with the above sum, in the course of a week. pray favour me by calling on mr. g. tahourdin, in order to see the conditions of the assignment, which lays there, executed by me. he will also show you the colonel's extraordinary letters, and all my answers; at least i imagine that he has, if not all, most of them. "could i in the course of seven or eight days (in addition to the £. ) procure about £. , either from the colonel or from you, on account of colonel k's. £. , , for which you might hold the assignment as a security, i should be enabled to proceed immediately to the tonnant; for i still think lord cochrane might obtain leave for my going _on board_, at all events; i yet have hopes, though his lordship seemed in doubt; perhaps you will obligingly urge his endeavours. i fear a much greater difficulty, for i have heard it hinted, that some creditors, fearful of my going to america (which i have too openly talked of), contemplate to lodge detainers against me. among these however, mr. tahourdin is _not_; for i thought it my duty to tell him, and he handsomely consented to my endeavours against america, as the only means to recover from my many losses. "my plan is to go on board, if possible, with a view to begin to drill the marines in rifle-shooting and exercise, and _any_ of the crew in sword, pistol and pike use; if my creditors pursue me there, i could draw for the balance of £. , to silence some of them (i mean after taking from £. , , £. , to refund to you, in case you now oblige me with an advance, and £. , to protect my securities for the rules); and if this cannot be completed with the colonel time enough, and for which reason i flatter myself that you will assist me with your friendly interference, i see but one mode, that of going abroad the moment i find my creditors hostile; for although i may find £. to £. , to pay the rules, i cannot find means in haste to satisfy the rest, although i have offered to assign considerable properties. in the latter case, might i not from abroad proceed to america, there to join the admiral, as a volunteer, and at my own risk. "forgive my anxious and tedious suggestions, which your own feeling heart, and friendly interest in my future successes, have in some degree courted, and grant me your pardon for not attending to your good humoured hint about long letters. even should you refuse my request, in regard to the £. , i shall be thankful for your reply; but if it should convey your consent, the sum shall immediately be employed towards the honest but hazardous service of your country, although it hesitates by proper rank, and otherwise to encourage my loyal, and i trust zealous endeavours. forgive the sound but frank style of this letter, owing to disappointments which would be intolerable, if the recollection of your kindness did not curb and relieve him, who must ever gratefully subscribe himself with unalterable esteem, dear sir, your faithful and obliged, humble servant, _c. r. de berenger_." to the hon. cochrane johnstone, &c. &c. &c. p.s. apropos.--you have paid me £. . on account;--may i trouble you to tender my most respectful assurances to miss j.; that i hope most sincerely to hear that her indisposition discontinues. should you no longer want the books, perhaps the bearer may bring them. will lowness of spirits be received as an apology for this slovenly letter and crippled sheet? _lord ellenborough._ this does not appear to have come by the twopenny post? _mr. park._ no my lord; but there is an indorsement upon it. _lord ellenborough._ de berenger was in the king's bench; he had not servants to send with it? _mr. park._ yes, my lord; it is sworn to by the davidsons, that he had a man and a woman servant. _lord ellenborough._ probably he sent one of them, as you propose to call them, perhaps they may prove that. _mr. scarlett._ there is a reference in that letter to an assignment of some property that de berenger had? _a._ yes. _q._ was such an assignment prepared at your office? _a._ it was; it was an assignment from mr. de berenger to colonel kennedy. _q._ what was the subject of the assignment? _a._ it was an assignment of a share of a patent. _mr. gurney._ we are getting so very wide of evidence, that i must object, which i am very loth to do. _mr. scarlett._ there was something referred to, that might be a security to mr. johnstone. _lord ellenborough._ that refers to something which is the real thing; that is all you can prove by this witness. _a._ yes, it does, my lord. _mr. scarlett._ mr. johnstone having written you that letter which has been read, to ask your opinion about de berenger, did you state to him what was your opinion, as to his power of extricating himself? _a._ i had some conversation with mr. johnstone, as i had had several times. _q._ in consequence of the letter which has just been read? _a._ yes; i replied to the letter shortly, and i had conversation with him in consequence. _lord ellenborough._ do you know whether mr. johnstone made any answer to the letter? _a._ to the baron? i really do not. _mr. scarlett._ is that your answer to mr. johnstone? (_shewing a letter to the witness._) _a._ yes, it is. _mr. scarlett._ if your lordship will allow that to be read. _lord ellenborough._ when did you write that? _a._ i wrote that the d of february, the day after i received the letter. _q._ it is addressed to mr. cochrane johnstone. _a._ it was sent to mr. cochrane johnstone. _q._ how came your answer to be in your hands? _mr. scarlett._ it was handed over by us just now; it was given me by mr. cochrane johnstone's attorney. [_the letter was read, as follows:_] "my dear sir, "in reply to your favour of yesterday, i beg to inform you, that the only sum i have paid the baron on your account, since you advanced him the £. , is a trifle of about £. or £. , which he paid for the printing of the prospectus's of vittoria. you are very kind in assisting him so much; i have done it till my purse is empty; but had it been otherwise, i would still have assisted him to the extent of my means, notwithstanding the little foolish difference between us. "i will attend to your wishes respecting the annuities, i will settle with dawson and wrattislaw as speedily as possible. "the wendover business is proceeding; but i am awkwardly circumstanced, not having all the documents before me; in lady m. l. crawford's business i should wish to attend with you on the spot. pray excuse haste i am, dear sir, your's faithfully _gabl tahourdin_." temple, d feb. . _lord ellenborough._ where is the cover of this letter: the cover should be produced, for letters of this sort may be written after their date, and one wishes to have some external thing that cannot deceive; there is no post-mark to any of these letters. _mr. scarlett._ did you write that letter on the day of which it bears date? _a._ yes, i did; it was not sent by the post, i believe; i cannot charge my memory, whether it was or not? _q._ i see there is a lady alluded to, lady mary crawford lindsey; was she a tenant to mr. cochrane johnstone? _a._ no, she was not a tenant; she had purchased a house of his. _q._ there was a business to settle with her? _a._ yes. _q._ do you know the fact, that in consequence of this correspondence which has been read, mr. johnstone did pay mr. de berenger any sum of money? _a._ only from the parties having acknowledged, the one the having paid it, and the other the having received it. _q._ you were not present when the money was paid? _a._ no, i was not. _q._ was there any receipt taken for the money? _a._ yes, there was. _q._ did you take the receipt? _a._ no, i did not. _lord ellenborough._ did you see it at the time of the receipt? _a._ there were two receipts at the time. _q._ do you know of its existence, by seeing it at the time when it purports to bear date? _a._ a little afterwards; a few days afterwards. _q._ when did you first see it? _a._ a few days afterwards; i really believe the £. receipt i handed myself to mr. johnstone, but i cannot charge my memory with it. _lord ellenborough._ you saw it in the month of february, or when? _a._ the £. receipt, which was in september or october, i believe i handed over to mr. johnstone myself; the other i did not. _mr. scarlett._ when did you first see the other receipt; was it in february? _a._ i think within two or three days after it was given. _lord ellenborough._ have you both the receipts there? _mr. scarlett._ we have, my lord. _lord ellenborough._ then hand them in, if he proves that he saw them about the date? _a._ this receipt of the th of september , i handed myself over to mr. johnstone. [_it was read, as follows._] "london, septr , . "received of the honble cochrane johnstone, the sum of fifty pounds (by the hands of gabl tahourdin, esq.) on account of large plans, &c. "_c. random de berenger._" ---------- £. -- -- ---------- _mr. scarlett._ you have another receipt in your hands, that bears date the th of february? _a._ yes. _q._ that money did not pass through your hands? _a._ no. _q._ when did you first see that receipt? _a._ in three or four days afterwards, when mr. johnstone called upon me; mr. de berenger and i were not at that time upon favourable terms; that will account for my not having delivered it over to him. [_it was read, as follows._] "london, february the th, . "received of the honble a. cochrane johnstone, the sum of two hundred pounds, being the balance of some drawings, plans and prospecti, delivered. "_c. r. de berenger._" ----------- £. -- -- ----------- _mr. scarlett._ i observe, that in that correspondence there is mention made, besides the payment of £. of a loan of £. ? _a._ yes. _q._ were you present at the passing of any money? _a._ no, i was not. _q._ when did you first see that paper? (_handing one to the witness._) _a._ i saw it at the same time with the last receipt for £. . _q._ what is it? _a._ a note of hand for £. . _q._ you saw that two or three days after it bears date? _a._ yes, i did. [_it was read as follows._] £. -- -- ----------- "london, february the th, . "six months after date, i promise to pay to the honble a. cochrane johnstone, the sum of two hundred pounds. "_c. r. de berenger._" payable at gabl tahourdin, esq. no , king's bench walk, temple. _mr. scarlett._ with respect to those letters you received from mr. johnstone, do they contain your indorsement upon the back of them? _a._ i think they do. _q._ is that your handwriting upon the back of that letter? (_shewing it to the witness._) _a._ it is. _q._ was it written by you at the time you received it? _a._ yes. _lord ellenborough._ what letter is that? _a._ the letter of the baron to mr. johnstone, of the d of february. _lord ellenborough._ you wrote it on the same day? _a._ i cannot say on the same day, but within a few days; when i doubled up the papers that lay on the table, with other documents. _mr. scarlett._ is it your habit, when you lay letters by, to endorse the date. _a._ yes, uniformly; but not on the day of receiving them; i let them lie till they accumulate unpleasantly. _lord ellenborough._ if a man sends you letters enclosed from other persons, do you indorse the letters sent to you inclosed; that is no part of the correspondence with you? _a._ no, it is not. _q._ then i should apprehend, you would not usually do it? _a._ i have done it differently; i have said "de berenger to johnstone." _q._ but you give it a date? _a._ i have dated it above those words, as usual. _q._ when you receive a letter, you authenticate the period of receiving it, but not the date of a letter received by another. _a._ i generally do; i enclose it in the letter to which it refers. _mr. scarlett._ was it so done in this instance? _a._ it was. _lord ellenborough._ have you any letter-book? _a._ i do not keep a letter-book; but i keep my letters very regularly tied up. _mr. scarlett._ you have heard the contents of the letter from de berenger to mr. johnstone read. _a._ yes. _q._ that refers to some documents in your hands, to serve as a security to mr. johnstone, in case he should require them? _a._ yes. _q._ is it your usual practice, when letters of that sort are sent to you, to make the sort of endorsement you have done when you lay the letters by? _a._ it is. _lord ellenborough._ i only asked him as to the inclosure. if i received a letter, i should endorse the date of my receiving it as authenticating the fact; but i should not put the endorsement of the date upon the enclosure, for i know nothing of the date, whether it was received on that day or not; the gentlemen of the jury know whether that is the habit of business or not. _a juryman._ is the date you have endorsed upon the enclosure, the date of your receiving it or the date of the letter? _a._ the date of the letter. _lord ellenborough._ certainly it is not regular to authenticate the date of a letter, to which you are not privy; that is all my observation upon it. _mr. scarlett._ besides those plans you now produce, do you know whether there were other and subordinate plans drawn for the details of that same scheme? _a._ yes, there were. [_examined by mr. park._] _q._ you have been a great while the attorney of mr. de berenger, and known to him? _a._ five or six years. _q._ were you known to him before you were known to mr. cochrane johnstone? _a._ yes. _q._ did you become security for the rules for this gentleman before you knew mr. cochrane johnstone? _a._ some months. _q._ then it was not at mr. cochrane johnstone's desire that you became a surety for the rules for this person? _a._ certainly not. _q._ was mr. cochrane, who, i understand from mr. brushoft, was your co-surety, any relation of mr. cochrane johnstone? _a._ no. _lord ellenborough._ that has been proved over and over again; nobody made an observation upon it. _mr. park._ i beg your lordship's pardon; there could be no other motive, i conceive, in calling mr. brushoft. _lord ellenborough._ i understood him to be called to prove, that mr. tahourdin was a surety for the defendant; i never heard an observation made upon mr. cochrane, as being a relation. _mr. park._ are you acquainted with the hand-writing of your client, mr. de berenger? _a._ perfectly. _q._ that letter, or those letters lying before his lordship, which have been proved, i think you say they are his hand-writing? _a._ there is only one. _q._ have you ever seen that letter before you saw it yesterday? (_handing to the witness the letter sent to admiral foley._) _a._ never; i just saw it yesterday, and that was all. _q._ upon the knowledge you have of the hand-writing of mr. de berenger, is that, in your judgment, the hand-writing of mr. de berenger or not? _a._ certainly not. _lord ellenborough._ be upon your guard. _mr. park._ be upon your guard, and look at it attentively. you have many times seen and read his letters? _a._ a thousand times, and received a thousand letters from him. _q._ and you do not believe it to be his hand-writing? _a._ i do not indeed; it is not his hand-writing. _lord ellenborough._ that is the dover letter? _mr. park._ yes it is, my lord. if your lordship will look at that and the other letter, you will see a marked difference. [_the witness compared the two letters._] _lord ellenborough._ the gentleman may look at the two letters; but that furnishes no argument, for a person would certainly write a disguised hand at that time, if ever he did in his life. this gentleman does not go on belief that it is not, but he swears positively that it is not his hand-writing. _mr. park._ certainly, my lord; and there is, on the other side, only mr. lavie. this gentleman having seen mr. de berenger write a thousand times, and received a thousand letters from him. do you, in your judgment and conscience believe, that that is a disguised hand of mr. de berenger? _a._ i do not. _a juryman._ why did you take the two letters up to compare the two hand-writings, if you had no doubt in your mind? _a._ i had no doubt at all of it. _lord ellenborough._ why did you compare the two then? _a._ i wished to be circumspect; but if my life rested upon it, i should say, this is not his hand-writing, according to my belief and judgment. _mr. park._ what has been, for the number of years you have known this person, his general character? _a._ i have always considered him a man of strict honour and integrity. _q._ we have heard he has been in difficulties? _a._ he has been. _q._ and he is a debtor of yours? _a._ yes, he is a very large one. _q._ to what amount have you trusted him? _a._ to the extent, i believe, of about £. , , and upwards, besides my professional claim. _lord ellenborough._ in money. _a._ yes, in money. _mr. gurney._ i only want to ask mr. wood as to this road book. i believe it has been identified before. _lord ellenborough._ that was put in yesterday. _mr. jones._ i had it yesterday in my hands; it was put in by mr. wood. _mr. gurney._ i wish to shew mr. tahourdin the hand-writing in that book. _lord ellenborough._ the hand-writing in that road book certainly was as extremely like the dover letter as ever i saw any thing in my life. [_the road book was handed to mr. tahourdin._] _cross-examined by mr. gurney._ _a._ have the goodness to look at that pencil-writing in that road book; do you believe it to be mr. de berenger's hand-writing. _lord ellenborough._ now be upon your guard. _mr. gurney._ look at both pages. [_the witness examined it._] _a._ some of it appears to be more like his hand-writing than the other part. _q._ do not you believe it all to be his hand-writing? _a._ no, i do not indeed. _q._ how much of it do you believe to be his hand-writing. _lord ellenborough._ state the parts where you think the likeness ends, and where you think somebody else has taken up the pencil and written a part of it. _a._ that looks more like his hand-writing [_pointing it out_] but it is not the general writing of mr. de berenger. _mr. gurney._ how much of it do you believe to be his writing? _a._ some part of it looks more like his writing than other part. _q._ is there any part which you believe is not? _a._ the writing part is not at all like his writing. _q._ i ask you as to nothing but the writing part? _a._ some are figures. _q._ looking at those two pages, you say it is not all his hand-writing? _a._ no, i do not think i did. _q._ that was your first answer? _lord ellenborough._ you said "there is some more like his hand-writing, but i do not believe it all is." _mr. gurney._ how much is there of it that you do not believe to be his writing. _a._ some of the letters look like his hand-writing. _q._ how much or how little of it do you think to be his hand-writing? _a._ the smaller parts look like his hand-writing. _q._ now i ask you upon your oath, have you any doubt of the whole of those two pages having been written by the same hand? _a._ upon my word it is difficult to say. _q._ not at all so; i have looked at it attentively, and i know it is not difficult to say; do not you believe it all written by the same hand? [_the witness examined it again._] _lord ellenborough._ you can say whether you believe it to be de berenger's hand-writing? _a._ upon my word, i really do not know what to say. _mr. gurney._ i am quite content with that answer? _lord ellenborough._ mr. park, would you like to look the dover letter? _mr. park._ i am no judge of hand-writing, my lord. _lord ellenborough._ that may be a concealed hand-writing, and i should think it extremely likely. _mr. park._ i mean to call other witnesses to this; i have nothing to conceal in this case? _lord ellenborough._ no; you announced to us that you flatly contradict the whole of the story as to mr. de berenger. _mr. park._ yes, i do my lord; i observe this is all pencilling which has been shewn to you? _a._ yes, it is. _mr. park._ is this pencil writing in the same kind of character that a man writes when he writes with pen and ink; are you enabled to say from your knowledge of the hand-writing, whether it is or is not? _a._ that it is which puzzles me more than any thing, its being in pencil. _a juryman._ we should like to see that road book. _mr. park._ does your lordship think the jury have a right to see that; they cannot take it for the purpose of comparing with any thing else? _lord ellenborough._ it is in evidence, being found in the desk of the defendant, they may look at each, if they please. _general campbell, sworn._ _examined by mr. brougham._ _q._ do you know mr. cochrane johnstone? _a._ i do. _q._ did you meet him in the month of september or october last, at a meeting or hunt in scotland? _a._ i met him the second week, i think in last october, at the perth meeting. _q._ did he at that time shew you some plans and prospectus of the new place of amusement, in the nature of a ranelagh? _a._ i saw in mr. cochrane johnstone's hands, the prospectus of a new public place, he called it, to be erected in the regent's park, or the neighbourhood of the regent's park. _q._ do you recollect the name he gave to it? _a._ i think he called it vittoria. _q._ will you look at the prospectus, and see whether that is the same? [_the prospectus was shewn to the witness._] _a._ i believe this is a copy of the same that i saw. _q._ look at the plan? _a._ he did not shew me the plan. _q._ did he shew this prospectus, and communicate to other persons at that meeting upon the subject of it, as well as you? _a._ i cannot speak to that; he communicated to me in my own apartment or his own, i cannot recollect which. [_mr. hopper was called, but did not answer._] _mr. serjeant best._ this gentleman was taken very ill, being kept here last night; if he comes by and by, i trust your lordship will permit him to be examined out of his turn. _lord ellenborough._ certainly, at any period. _mr. serjeant best._ that is the case of the three defendants for whom i appear. _the right honourable the earl of yarmouth sworn._ _examined by mr. park._ _q._ you are i believe, or were, the colonel of the duke of cumberland's sharp-shooters? _a._ lieutenant-colonel commandant. _q._ it is called the corps of sharp-shooters? _a._ yes. _q._ captain de berenger was adjutant of that regiment, was he not? _a._ he was a non-commissioned officer, acting adjutant. _q._ how long have you known mr. de berenger? _a._ ever since a few days after i was elected to command that corps; that was in the beginning of the year ; i cannot fix the day, very early in that year i know it was. _q._ has your lordship had opportunities of seeing mr. de berenger write, or of receiving letters from him, and of acting upon those letters from him. _a._ i have received a great many letters from him, and have seen him write occasionally. _q._ and you have seen him, probably, on the subject of the contents of those letters? _a._ very frequently; two or three times i have seen him alter the regimental orders, and have received very many letters from him. _q._ are you, from that opportunity that you have described, in a capacity to state to his lordship and the jury, whether you are acquainted with his character of hand-writing? _a._ as well as i am with that of any other gentleman with whom i have been in the habit of correspondence. _q._ then, not knowing what your lordship's answer may be, i will trouble your lordship to look at that.--[_the letter sent to admiral foley was handed to his lordship._] _a._ i will read it through, if you please.--[_his lordship read the letter._] _q._ supposing you had heard none of the circumstances which this trial has brought to every body's ears, and of which your lordship has heard so much yesterday; from the character of the hand-writing of mr. de berenger, should you have believed it to be his hand-writing? _a._ certainly not. _q._ your lordship, i believe, knows that in the month of july, this gentleman was very urgent and solicitous to go out as a sharp-shooter to america, with sir alexander and afterwards with lord cochrane? _a._ he mentioned to me one day, when he came to me on the business of the corps---- _q._ was that in january? _a._ i think so; but i cannot swear to the date; he mentioned to me, that he had very nearly arranged to go out, to drill the crew and the marines on board of the tonnant. i thought he mentioned it in a way to suggest, that he wished some little additional influence, and i got rid of the thing. _cross-examined by mr. gurney._ _q._ the writing of that is larger than mr. de berenger usually writes? _a._ certainly, it is longer. _q._ the character of the letters is longer? _a._ oh, certainly; it is a very round small hand he generally writes, and a very pretty hand. _q._ will your lordship look at that letter, and tell me, whether you received that letter at or about the time that it bears date? (_shewing a letter to his lordship._) _a._ yes; either the day it bears date, or the day immediately after it. _mr. gurney._ i request mr. law will mark that letter; the date of it is march the th? _a._ i believe i marked the cover. _q._ will your lordship have the goodness to look at the hand-writing in that road book (_shewing it to his lordship_); that i believe is larger than mr. de berenger's usual writing, is it not? _a._ i think it is; some part certainly does not look larger; it is less round--it is more angular. _q._ does your lordship or not, believe that to be mr. de berenger's hand-writing? _a._ i am not sufficiently conversant with hand-writing, to wish to swear to an opinion either way. _re-examined by mr. park._ _q._ that is in pencil? _a._ yes. _q._ with respect to the letter in question, although it is of a larger description than mr. de berenger's usual writing, does it appear to your lordship to be at all a feigned hand, as disguising the real hand? _a._ another question to which i am not competent to give an answer; if i was to look through the letter--there is one letter which creates a suspicion, but i should never have suspected it on a cursory view of the letter; it is the letter r before du bourg, but that i should have never looked at or suspected; that looks more like his hand-writing than any other part; it looks like the way in which he makes the r of random. _q._ does your lordship mean the large capital r, or the little r? _a._ the large capital r is the only letter i can see that looks in the least like his hand. _q._ your judgment upon that letter, upon the whole inspection of it, is, that it is not his hand-writing? _a._ i should never suspect it, except from that letter. _lord ellenborough._ it is a larger character? _a._ yes, it is a fuller character. _q._ it is a stiffer character, and more upright? _a._ it is less upright, i think, than his; it is more angular and longer. _lord ellenborough._ that is his usual writing, is it not? (_shewing another letter to the witness._) _a._ oh, yes; certainly, i am perfectly familiar with that. _lord ellenborough._ you are certainly borne out in your observation upon the letter; look at that letter r again? _a._ it struck me on reading the letter. _q._ in what manner an artificial letter may be written, so as to disable a person from saying whether it is the hand-writing of a certain person, you cannot say? _a._ i am perfectly incompetent, as i informed your lordship and the jury before, to give any judgment upon that. _q._ what is the uniform of your corps? _a._ the uniform is, the waistcoat green, with a crimson cape. _q._ a bottle green, is it not? _a._ some have got it a little darker than others, but it should be a deep bottle-green with a crimson collar; the great coat is a waistcoat with black fur round it, consequently no crimson collar. _q._ the body in your uniform is not red? _a._ it is deep bottle green. _a juryman._ a jacket or coat? _a._ it is a waistcoat, very like the light-horse uniform. _lord ellenborough._ it is almost unnecessary to ask you, whether the members of your corps wear any decorations; a star or a cross? _a._ when in uniform, some wear medals that they have gained as prizes given by the corps; they occasionally wear them hanging by a ribband. _q._ you wear no such decorations as this? (_shewing the star to his lordship._) _a._ no, certainly not. _q._ supposing a gentleman appeared before you in an aid-de-camp's uniform, with that star upon his breast, and that other ornament appendant, should you consider that was a man exhibiting himself in the dress of your sharp-shooting corps? _a._ certainly not. _q._ if a sharp-shooter belonging to your corps presented himself to you in that dress, you would think it a very impertinent thing? _a._ certainly. _mr. serjeant best._ as lord yarmouth has been called by the defendant, de berenger, and has given evidence which may affect lord cochrane, we conceive, we submit we have a right to make an observation upon it. _a juryman._ if colonel de berenger had appeared before your lordship in the uniform of his corps, would it have been any thing extraordinary? _a._ nothing extraordinary; it would have been more military that he should do so, though i never exacted it. _captain sir john poo beresford, sworn._ _examined by mr. richardson._ _q._ are you acquainted with mr. de berenger? _a._ i have seen him twice in my life before yesterday. _q._ have you had any occasion to see him write, or to be acquainted with the character of his hand-writing? _a._ never. _q._ do you know at any time in the early part of this year, or the latter end of the last, of any applications he was making to go to america as a sharp-shooter? _a._ i will tell you the part i took in reference to that business. in the beginning of february, i paid my ship off; after that, i met mr. cochrane johnstone in town, who told me sir alexander cochrane was very anxious he should go out in the tonnant, to teach the marines the rifle-exercise. i went to the horse guards to ask whether anything could be done; i was told it would be useless to apply to the duke of york; and i told mr. cochrane johnstone of it the day after. i was dressing before breakfast, and mr. de berenger sent up to say, that he was very much obliged to me for the part i had taken. _q._ at what time was this? _a._ i think, the beginning of february; but before sir alexander cochrane sailed, i met him at mr. cochrane johnstone's, with admiral hope and some ladies; i think that was in january, or the latter end of december; there were, i think, fourteen of us, some of them ladies. this application was after he had sailed. when i went to mr. cochrane johnstone's, i was to have met sir alexander cochrane, but he went to dine somewhere else, and my lord cochrane came in after dinner; he did not dine there, but a great many of the family did. _james stokes sworn._ _examined by mr. park._ _q._ i understand you are a clerk of mr. tahourdin, the attorney. _a._ yes. _q._ how long have you been so? _a._ between three and four years. _q._ have you, in the course of those three or four years, had frequent opportunities of seeing the hand-writing of mr. de berenger? _a._ daily. _q._ he has been a client of your master, and has been assisted very much by him? _a._ yes. _q._ have you seen him write, as well as seeing letters purporting to come from him? _a._ a great deal. _q._ be so good as to look at that paper (_the dover letter_), and tell his lordship and the jury, whether in your judgment and belief, that is the hand-writing of mr. de berenger? _a._ certainly not. _q._ look at that, and say whether you think it is a feigned hand, but still the hand-writing of de berenger? _a._ it certainly is not. _q._ of course, a man can only speak to belief and judgment when he does not see a thing written; do you believe, from your knowledge of his hand-writing, that that is his writing, either feigned or real? _a._ not a word of it. _lord ellenborough._ look at the letter r in the signature? _a._ it is not like it at all. _mr. park._ i mean the large r. _a._ the capital r is nothing like it. _mr. park._ it is a singular r certainly, it looks as if it had been intended for a p and made into an r. _lord ellenborough._ it is not at all like that r, is it? [_shewing another letter to the witness._] _a._ no, i do not think it is any thing like that. _william smith sworn._ _examined by mr. richardson._ _q._ you are servant to mr. de berenger? _a._ yes. _q._ how long have you been his servant? _a._ about three years and a half. _q._ do you write yourself? _a._ yes. _q._ during the time you have been in his service, have you seen him write, and become acquainted with his hand-writing. _a._ a great deal of it. _q._ is he a gentleman who writes a good deal? _a._ yes. _q._ are you well acquainted with the character of his hand-writing? _a._ yes. _q._ have the goodness to look that over, and then i will ask you a question respecting it, and among other things look at the signature at the bottom, r. du bourg.--[_the letter sent to admiral foley was handed to the witness, and he examined it._] _mr. park._ having examined that paper, is that, in your judgment and belief, the hand-writing of your master, mr. de berenger? _a._ i really believe it is not. _q._ the whole, or any part of it. _a._ none of it. _q._ have you any doubt of that? _a._ i am positively sure it is not his hand-writing. _q._ according to the best of your judgment and belief? _a._ according to the best of my judgment and belief. _q._ you have been his servant three years and a half? _a._ yes. _q._ we understand he has lately lodged with a person of the name of davidson, in a place called the asylum buildings. _a._ yes. _q._ were you with him till he went away in the month of february? _a._ yes. _q._ that was on sunday the th, was it not? _a._ yes. _q._ do you remember, whether he was at home on the sunday preceding that, that would be the th? _a._ i perfectly remember it. _q._ did he sleep at home on the saturday night? _a._ he did. _q._ did he go out at any time on sunday morning? _a._ he did. _q._ do you remember at what time? _a._ about nine o'clock. _q._ did he come in again after that? _a._ yes. _q._ and go out again? _a._ yes. _q._ about what time was that. _a._ it was near eleven when he came home, and he went out immediately afterwards; he was not above a quarter of an hour or twenty minutes before he returned again. _q._ did he return again after that? _a._ yes. _q._ how soon after? _a._ about twenty minutes. _q._ would that be after persons were gone to church that he returned? _a._ yes. _q._ how long did he stay at home then? _a._ till about four o'clock. _q._ he went out again about four o'clock? _a._ yes. _q._ were you at home at the time he went out again, about four o'clock? _a._ i was over the way. _q._ did you see him? _a._ yes; i had the dogs out, and was leaning with my back against the rail when he came down. _q._ your master's dogs? _a._ yes. _q._ he kept dogs, did he? _a._ only one; one was mine; i was with them opposite, on the other side of the road, leaning against the rail facing the door. _q._ what were you doing with the dogs? _a._ i generally take them out for occasions. _q._ did you see him go out about that time? _a._ i did. _q._ did you yourself go out soon after that? _a._ yes i did, and my wife. _q._ about what time did you return home that evening? _a._ about eleven o'clock, within a few minutes of eleven. _q._ was your master at home when you returned or not? _a._ he was not at home. _q._ did he come home afterwards? _a._ yes. _q._ about what time? _a._ i had not been at home, i suppose five minutes, before my master came home. _q._ that would be a few minutes before or after eleven? _a._ yes. _q._ did he sleep at home that night. _a._ yes. _q._ what means have you of knowing that? _a._ the means i have were these; after i came home we were down in the kitchen taking our supper, my master was in the drawing-room before we had got to bed, i heard him going up stairs to his bed-room, he passed my room door; that was not above half past eleven. _q._ did he breakfast at home the next morning, or not. _a._ no, he did not. _q._ did you see him the next morning early? _a._ no. _q._ about what time did you see him the next day? _a._ about three o'clock; i cannot speak to a minute or two. _q._ did you hear or see him go out? _a._ i did not. _q._ you saw him about three o'clock on the monday? _a._ yes, i did. _q._ who made his bed? _a._ my wife. _cross-examined by mr. gurney._ _q._ did you let him in? _a._ yes. _q._ you opened the door to him? _a._ yes. _q._ at a little after eleven, that night? _a._ yes, thereabouts, it might be a little before, or a little after. _q._ he gave a good loud knock at the door, in his usual way? _a._ he rapped as usual. _q._ and his usual rap was a loud one? _a._ not over loud. _q._ not very gentle? _a._ between. _q._ between loud and gentle? _a._ yes. _q._ and he slept at home that night? _a._ i cannot say that he slept, he went to his bed-room, and the bed when i went in the morning looked as if he had slept in it. _q._ did you see him in bed the next morning? _a._ no, i did not, i heard him go into the bed room. _q._ you did not see him the next day till three o'clock? _a._ no. _q._ did you write that letter to lord yarmouth? (_shewing a letter to the witness._) _a._ i did. _q._ of your own head? _a._ yes. _q._ no body furnished you with any draught to write from? _a._ no. _q._ have you your master's military great coat here? _a._ yes. _q._ his military grey great coat? _a._ yes; not in this present place. _q._ it is at guildhall? _a._ yes. _q._ now attend to this question, have you not acknowledged that your master slept from home that night? _a._ never. _q._ have you not acknowledged it to mr. murray? _a._ never. _q._ i give you notice he is here? _a._ i know he is. _q._ now i ask you, did you not on monday the st, tell mr. or mrs. davidson, or both, that coming home, and not finding your master at home, you had left the key for him at the usual place in the area, that he might let himself in? _a._ i did not tell them so, upon my oath. _q._ neither of them? _a._ no, neither of them. _q._ did you tell mr. or mrs. davidson that on any other day; did you ever tell them so? _a._ no, not to the best of my knowledge. _q._ to the best of your knowledge? _a._ i never told them so. _q._ as you did not attend your master on the monday morning, who attended him and brought him his shaving things, and gave him the usual attendance of a gentleman? _a._ he never has any attendance; i never go to his bed room till about half past eight, and sometimes he is up, and sometimes not. _q._ do you mean to say, he is a gentleman that wants no attendance? _a._ yes; he cleans his teeth, and washes himself and powders his hair, without my being in his bed room. _q._ he does not usually ring his bell in a morning, i suppose, doing without attendance? _a._ not before he comes down to breakfast. _q._ what time does he usually come down to breakfast? _a._ at different hours. _q._ what is his usual hour? _a._ sometimes nine, sometimes ten, sometimes eight. _q._ till he comes down, he does not ring for you? _a._ very seldom. _q._ he is a very quiet, a remarkably quiet man in his lodging? _a._ i never knew him to be otherwise. _q._ not a person walking about, or making a noise of any kind? _a._ not making any disturbance; he walks about very much. _q._ your master finally left his lodgings on sunday the th. _a._ yes. _q._ do you remember your paying or changing a fifty-pound note with a mr. seeks? _a._ i do. _q._ from whom did you receive that fifty-pound note? _a._ mr. de berenger. _q._ on what day did you receive that? _a._ on the th, i think it was. _q._ on the sunday? _a._ yes; i think it was. _q._ the day he went away? _a._ yes; i think it was. _q._ when he went away, he took his things to the angel inn, st. clements. _a._ i took them for him. _q._ for him to go into the country? _a._ yes. _q._ did you receive no more than fifty pounds from him; did you not also receive a twenty pound from him? _a._ i did not; not the same day. _q._ what day did you receive that twenty pounds? _a._ i cannot positively say. _q._ was it a day or two before he went away? _a._ yes. _q._ did you receive also a two pound from him? _a._ i do not recollect. _q._ did you receive and give to any person, of the name of sophia, thirteen pounds from him? _a._ no; i gave none to sophia. _q._ did you see him give her any thing? _a._ no, i did not; if i was in the room i did not notice it. _q._ do you know any person of the name of hebden, or heberdine? _a._ no. _q._ do you remember, the day before your master finally went away, mr. cochrane johnstone calling with a letter? _a._ i do not remember that; i was not at home. _q._ upon your oath, did not a gentleman call there, who you told mr. davidson was mr. cochrane johnstone? _a._ upon my oath i was not at home; she told me a gentleman called there, and giving a description of him, i said, most likely it was mr. cochrane johnstone. _q._ you knew mr. cochrane johnstone? _a._ very little. _q._ but you did know him? _a._ i once saw him. _q._ did you not tell her on the sunday, that if your master had been at home on the saturday, when mr. cochrane johnstone brought that letter, he would have gone off on the saturday night? _a._ i did not. _q._ did you not on the saturday or the sunday? _a._ i did not. _q._ was your master at home all that week, from the th to the th? _a._ he was not always at home. _q._ he was at home every day? _a._ yes. _q._ going out as usual? _a._ yes. _q._ on the st, for instance? _a._ the st he went out to dine. _q._ where did he go to? _a._ i cannot positively say. _q._ did he tell you where he was going to? _a._ i do not recollect. _q._ upon your oath, did he not tell you he had been to mr. cochrane johnstone's? _a._ no. _q._ you swear that? _a._ yes. _q._ nor that he was going there? _a._ no. _q._ when you came home on the monday, did you see any black coat in the room? _a._ i did. _q._ was that your master's black coat, or a strange black coat? _a._ a strange black coat. _q._ that black coat must have fitted your master vastly well? _a._ i cannot say, i never saw it on. _q._ you brushed it, did not you? _a._ yes; but not on his back. _q._ you are used to brushing his coats? _a._ of course. _q._ now, a servant used to brush his master's coat, must know the size pretty well; this would be rather a short coat upon him, would it not? _a._ no; i do not think it would. _q._ upon your oath, would it not have been a great deal too long; was not it the coat of a man six feet high? _a._ i did not know who owned the coat. _q._ i did not ask you that; but was not that the coat of a gentleman six feet high? _a._ i do not know. _q._ you are not competent to say what sized man that would fit? _a._ that coat would fit me very well; it is rather wide. _q._ not at all too long for you? _a._ no, not at all. _q._ you have seen lord cochrane, have not you? _a._ never in my life, to my knowledge. _q._ you have sworn some affidavits, have you not? _a._ i have. _q._ did you draw them yourself? _a._ i did. _q._ without any assistance? _a._ without any assistance. _q._ whom had you seen before you drew them? _a._ i cannot say who i saw, thousands. _q._ upon that business? _a._ no body. _q._ before you made that affidavit, you had not seen any body upon that business? _a._ no. _q._ not lord cochrane? _a._ never in my life. _q._ nor mr. cochrane johnstone? _a._ no. _q._ nor mr. tahourdin? _a._ i saw mr. tahourdin, but he did not know of my making the affidavits; i told mr. tahourdin of my master's absence; i went to tell him. _q._ how soon was that after he left his lodgings? _a._ i cannot positively say to a day. _lord ellenborough._ what absence do you mean? _a._ from the th. _mr. gurney._ how soon after the th did you tell him? _a._ about the th or th. _q._ of march? _a._ yes. _q._ you swore your affidavit on the th of march? _a._ yes; but i drew it out before then. _q._ and that without any concert with any body whatever? _a._ yes. _q._ merely for the vindication of your master's character? _a._ yes. _q._ and when you had done it, what did you do with the affidavit? _a._ i sent it to have it published. _q._ to whom did you send it? _a._ i took it to mr. cochrane johnstone. i found my master a very injured gentleman. _q._ and therefore you took it to mr. cochrane johnstone, to be published? _a._ i did not take it to be published. _q._ you gave me those very words? _a._ he did publish it. _q._ did you not take it to be published? _a._ i did not take it to the printer. _q._ did you not take it to mr. cochrane johnstone, that it might be published? _a._ yes. _a juryman._ did your master breakfast at home on monday the st of february? _a._ no, he did not. _re-examined by mr. richardson._ _q._ when was it that you first saw this black coat? _a._ on the st of february. _q._ that was the monday? _a._ yes. _q._ that was after he came home, which you say was about three o'clock? _a._ i came home about three o'clock. _q._ he was at home? _a._ yes. _q._ he might have been at home before that? _a._ yes, he might. _q._ does your master play on any musical instrument? _a._ he was used to do. _lord ellenborough._ i will ask any question upon that subject for you, but there has been no question put on the cross-examination with reference to it? _mr. park._ there was a question about his being still. _lord ellenborough._ there was no allusion to musical instruments; you should have gone through it in your original examination, as it was to contradict their case. does your master play on any musical instrument? _a._ yes; both the bugle-horn and violin. _q._ you say mrs. davidson described to you a person who called, and that you said it was most likely mr. cochrane johnstone? _a._ yes. _q._ you had seen mr. cochrane johnstone? _a._ yes; i had seen him but once. _q._ this was on saturday the th? _a._ yes. _q._ why did you say it was most likely mr. cochrane johnstone? _a._ because she told me it was a tall gentleman, and his long hair very much powdered. _q._ having seen him but once, and not being much acquainted with him, what led you to say most likely it was mr. cochrane johnstone; had you any expectation that he would come that day? _a._ no, not the least. _q._ but having seen him once, you thought it must be that tall man and powdered, whom you had seen but once in your life? _q._ i might have seen him oftener than that, but not to my recollection. _q._ what you said was, that you had seen him once? _a._ i had seen him once, i know. _q._ had you seen him oftener than that? _a._ i cannot say; but i once saw him at his own house. _q._ i supposed you had never seen him but once from your answer? _a._ i might have seen him oftener, but i do not know that i had. _q._ you are as sure as that you are existing, that your master went up at eleven o'clock, or sometime after eleven, on sunday evening the th of february? _a._ so help me god; i am sure he did. _a juryman._ did you see him go up, or only hear him go up? _a._ i heard him go up; i was in my bed room. _lord ellenborough._ but you let him in? _a._ yes, i did. _a juryman._ you are sure that was on sunday the th? _a._ yes. _q._ did your master often breakfast out? _a._ sometimes. _q._ not often. _a._ not very often. _ann smith sworn._ _examined by mr. park._ _q._ are you the wife of charles smith? _a._ of william smith. _q._ were you a servant, with your husband, of mr. de berenger, in february last? _a._ yes. _q._ had you been so for any length of time? _a._ two years and a half. _q._ do you recollect having seen him at home on sunday the th of february? _a._ yes. _q._ in the forenoon? _a._ yes. _q._ do you know what time he went out that morning? _a._ about nine o'clock. _q._ when did he come in again? _a._ between ten and eleven o'clock. _q._ how long did he stay at home at that time? _a._ not a great while. _q._ he then went out again? _a._ yes. _q._ when did you see him again? _a._ he did not stay long. _q._ when did you and your husband go out that day? _a._ between four and five, after my master was gone out. _q._ what time did he go out? _a._ about four o'clock. _q._ and you and your husband went out between four and five o'clock. _a._ yes. _q._ at what time did you and your husband return home that night? _a._ about eleven, as near as i can guess. _q._ was your master come home before you, or did he not return till afterwards? _a._ my husband came in a few minutes before my master, and went down to strike a light, and i stopped to bring him some beer. _q._ did your husband and you come home together? _a._ yes; only that i called at the public house for some beer; my husband said he would go in, and strike a light. _q._ did your master come in that evening? _a._ yes. _q._ did you see him come in? _a._ no, he was let in before i returned with the beer. _q._ you heard him up stairs? _a._ yes. _q._ is it your custom yourself to see him in the evening; does he sup? _a._ he takes a little supper, but i was never in the habit of carrying it up stairs. _q._ your husband does that? _a._ yes. _q._ did he carry it up that evening? _a._ he had nothing but a bit of bread, and a glass of ale. _q._ you did not see him that night? _a._ no. _q._ was it your business, as the female servant of this gentleman, to make his bed? _a._ yes. _q._ at what time did you get up on the monday morning? _a._ about seven. _q._ are you sure that the time we are speaking of, was the sunday morning before he finally went off? _a._ yes. _q._ did you usually get up about seven? _a._ yes. _q._ at what time did your master go out that morning? _a._ he went out before breakfast. _q._ at what hour do you take that to be? _a._ before smith went out; he went out about eight and my master went out a little before him. _lord ellenborough._ did you see him go out? _a._ no. _mr. park._ did you hear him? _a._ no, i did not know that he was out, till i let him in. _lord ellenborough._ you did not know that he had been at all absent from home on monday, till you let him in? _a._ no. _mr. park._ had you made the bed on the sunday, the day you saw him go out so many times in the morning? _a._ yes, i was up stairs making the bed, and he went out; i looked out of the window, and saw him go. _q._ did you, or not, make his bed on the monday? _a._ i did. _q._ at what time of the day did you make his bed? _a._ not till after my master came home; my master came home, and when i found he had been out, i went up stairs immediately, and i made his bed. _q._ as you did not see your master on the sunday night or monday morning, what was the last time upon the sunday that you did in fact see him; not that you believe him to be there, but that you saw him with your own eyes? _a._ i am not certain whether i saw him go out on the sunday at four o'clock, but i think i did. _q._ you say you made his bed after he came home on the monday? _a._ yes. _q._ you let him in on the monday, at twelve o'clock? _a._ yes. _q._ was the bed the same as it was to all appearance on other days? _a._ yes. _lord ellenborough._ it appeared like a bed that had been slept in? _a._ yes. _mr. park._ had he been constantly sleeping in his own bed for several months? _a._ yes. _q._ did you sleep in that bed, that night? _a._ no. _q._ i did not mean to ask you an improper question; but you did not sleep in that bed; i meant no such insinuation as might be supposed? _a._ i did not sleep in it. _q._ did your husband sleep in that bed, and you in your own? _a._ no. _q._ did you and your husband sleep together that night? _a._ yes. _q._ are you quite sure that you made the bed on the sunday, and again on the monday? _a._ i did; i am quite sure of that. _q._ do you recollect how your master was dressed when he came home on the monday? _a._ i do; he had a black coat on. _q._ had he any thing in his hand? _a._ yes. _q._ what was it? _a._ a bundle. _q._ did you happen to see, while either it was in his hand, or immediately on his laying it down, the contents of the bundle? _a._ i saw a part of a coat where the bundle was open at the tie; a grey coat, just where the knot was tied? _q._ had your master a grey great coat? _a._ yes, he had. _q._ had he had one for some time? _a._ yes; about a month, i believe. _q._ did your master continue after that monday to sleep regularly at home, till he finally went away on the following sunday? _a._ yes. _cross-examined by mr. bolland._ _q._ your master had no other servant but you and your husband? _a._ no. _q._ in what capacity did he serve him? _a._ as man-servant; he used to wait upon him, and do any thing that was requisite to do. _q._ he waited upon him at dinner? _a._ yes; and at breakfast; he always used to carry it up; i never did that, except when he was out. _q._ you did not know till your master came home, that he had been out that morning? _a._ no, i did not. _q._ your husband went out about eight o'clock. _a._ yes. _q._ was not mr. de berenger in the habit of ringing his bell in the morning for breakfast? _a._ after he came down he used to ring the drawing-room bell, and then i used to carry it up, if my husband was out. _q._ who supplied him in the morning with water, for the purpose of shaving? _a._ he never used warm water; he had water in his room. _q._ he never rang for your husband to attend him? _a._ sometimes he did; but he knew my husband was going out that morning, and therefore he did not ring. _q._ did it not appear to you extraordinary that morning, that there was no call for breakfast till that hour? _a._ yes; i supposed my master had breakfasted out, of course, when he came in. _q._ but you did not know of his going out? _a._ no. _q._ was not your surprize excited by his not ringing? _a._ yes; i was rather surprized that he had not rang. _q._ do you recollect how he was dressed on the sunday when he went out last; you do not mean to say that you saw him go out at four o'clock? _a._ i do not recollect. _q._ the last time when you saw him go out on sunday, how was he dressed? _a._ he had on a black coat and waistcoat, and grey overalls. _q._ of course, not seeing him on the monday, you did not know in what dress he went out that morning? _a._ no. _q._ but you say he returned home in a black coat? _a._ yes. _q._ was that black coat his own? _a._ that i cannot say. _q._ was not that coat much too long for your master? _a._ i did not observe it. _lord ellenborough._ he did not come home in the same black coat he had gone out in on the sunday? _a._ that i cannot tell; i was not in the habit of brushing his coat. _mr. bolland._ did you ever see lord cochrane? _a._ no. _q._ was not the coat that he came home in, on the monday, so long, that you recollect remarking it could not belong to him? _a._ no, i did not remark that. _q._ did you see the coat lie on the chair afterwards? _a._ it might be there, but i did not observe it. _q._ what was in this bundle that he brought home? _a._ i saw a part of a grey coat between the tie of the bundle. _q._ did you make an affidavit upon this business? _a._ yes. _q._ when was that? _a._ the th of march. _q._ who suggested to you the necessity of making the affidavit? _a._ no body but my husband; it was his wish to make his, and he said, therefore ann do you make yours. _lord ellenborough._ what did you see besides the grey coat in the bundle? _a._ i saw nothing but that. _lord ellenborough._ recollect yourself, because you have sworn you saw a green uniform? _a._ there might be a green uniform. _q._ was there, or was there not? _a._ yes, there was a green uniform. _q._ was it in the bundle or not? _a._ yes, it was in the bundle. _mr. bolland._ was there any thing extraordinary in your master going out in his green drill dress? _a._ no; not that i know of. _q._ was he in the habit of going out in it? _a._ yes. _q._ and of returning in it? _a._ yes. _q._ did you ever know him go out in his green drill dress and come home in a black coat? _a._ no. _q._ that morning he had his green drill dress in his bundle, with his great coat? _a._ yes. _q._ your husband made an affidavit, and you made an affidavit as well yourself? _a._ yes. _q._ had you seen any body on the subject of that affidavit? _a._ no. _q._ had you seen mr. tahourdin? _a._ no. _q._ how soon after or before making that affidavit, did you see mr. tahourdin? _a._ i saw mr. tahourdin a few days after. _q._ did you know for what purpose your affidavit was made; how it was to be used? _a._ no. _q._ do you know to whom it was taken; what did your husband do with it; do you know of your own knowledge? _a._ it was put in the papers, i know. _q._ was it put in by him or by any body else? _a._ i believe it was put in by him. _lord ellenborough._ did mr. de berenger ever wear whiskers? _a._ yes, sometimes he used. _q._ how long before the th of february had you seen him wear whiskers? _a._ i do not know; i was so little in the habit of seeing my master, that i do not know whether he had whiskers or not. _q._ you saw him come in at the door, did not you? _a._ on the monday morning. _q._ at times you used to see him? _a._ yes. _q._ were you so little acquainted with the countenance of the man in whose service you had lived two years and a half, that you did not know whether he was a whiskered man or an unwhiskered man? _a._ i never attended the door when my husband was at home. _q._ you used to go backwards and forwards; just before you did not know whether there was a green coat in the bundle; and then when i put you in mind of what you had sworn, you say positively there was? _a._ yes, there was. _q._ and now you mean to say, you saw so little of your master, that you do not know whether he had whiskers? _a._ no, i do not know. _a juryman._ you say you did not make your master's bed until his return on monday? _a._ no. _q._ did you see it before his return on monday? _a._ no; but he was not up stairs, he was in the drawing room. _q._ you did not see the bed till after his return? _a._ no, i did not. _john m'guire, sworn;_ _examined by mr. richardson._ _q._ i believe you are ostler at smith's livery stables, at the cross keys yard, chelsea? _a._ yes. _q._ were you acquainted with the person of mr. de berenger? _a._ yes. _q._ was he in the habit of frequenting your master's stables, or that neighbourhood? _a._ yes. _q._ were you well acquainted with his person in the month of february last? _a._ yes, i was. _q._ do you remember seeing him upon the th of february? _a._ yes. _q._ on a sunday? _a._ yes. _q._ what makes you remember the day? _a._ i remember the day perfectly well, on the account that i knew him to be in the rules of the king's bench. _q._ how does that enable you to recollect the particular day? _a._ upon account, that i determined in my own mind, that i would ask his servant the next time i saw him, whether he was out of the rules. _q._ before that time had he ever lived at chelsea? _a._ yes, he had. _q._ and so you became acquainted with his person? _a._ yes. _q._ on this th of february, at what time did you see him at chelsea? _a._ at a quarter past six. _q._ where did you see him? _a._ at mr. smith's stable-yard gateway. _a juryman._ a quarter past six in the morning or the evening? _a._ the evening. _mr. park._ did any thing pass between you? _a._ yes; he asked me whether the coach was gone; i told him the six o'clock coach was gone, but the seven would be ready in three quarters of an hour. _q._ what further passed? _a._ he made no more to do, but turned round and took his way to london. _q._ did he say any thing more? _a._ he said it would not do to wait for the seven o'clock coach. _q._ and he set out on foot for london? _a._ he did. _q._ this was about a quarter past six, you say? _a._ yes. _q._ are you confident as to the day? _a._ i am. _q._ and as to his person, you have no doubt about it? _a._ no, not the least. _q._ did any circumstance occur to call this to your recollection? _a._ yes; i mentioned it to my wife, when i went home that night. _q._ what induced you to mention it to her? _a._ that i had seen mr. de berenger on that evening, at a quarter past six. _lord ellenborough._ you mentioned the time to her? _a._ yes. _q._ you mentioned particularly to her, that you had seen him at a quarter past six? _a._ i did. _mr. richardson._ what induced you to mention the circumstance to your wife? _a._ knowing that he was in the rules of the bench, and not having seen him that way, from the time that he was in the rules before. _q._ did he go from that lodging he had in chelsea, to the rules of the king's bench? _a._ yes, he did. _cross-examined by mr. adolphus._ _q._ how long had you known mr. de berenger before this? _a._ i had known him about three years and a half; i was living at mr. smith's yard at that time. _q._ and you had known him all that time? _a._ i had. _q._ it was on the sunday you saw him? _a._ yes. _q._ you knew him to be an officer in the corps of riflemen, did not you? _a._ yes, i did. _q._ perhaps you thought he was out on sunday on military duty, or something of that kind? _a._ i did not know, but the answer my wife made, when i said that to her was, that she supposed it was the same as it was at edinburgh, and that on the sunday a person used to come and visit her aunt. _q._ i cannot see what makes you remember particularly that it was the th of february? _a._ i had very good occasion for it. _lord ellenborough._ did you write it down? _a._ no, i cannot write. _q._ did your wife put it down? _a._ no; she cannot write neither. _mr. adolphus._ how do you know it was on the th of february? _a._ i can swear that was the day; on that day fortnight i saw his servant, and that was the th of march, and i asked him, whether his master was out of the rules of the bench? and he said, he was not; and i said, i had seen him there; and he said, if he was there he did not know any thing of it, nor his master was not out of the rules of the bench. _q._ he said that he was at home, in the bench, then? _a._ no, that was not his meaning; that he was not got out of the rules then, that he was not got clear of the bench. _q._ the servant told you so on the th of march? _a._ yes. _q._ that he was not out of the rules of the bench? _a._ yes. _q._ that he was not on that day, the th of march? _a._ yes; that he did not know it if he was. _q._ he was quite surprised at hearing of it? _a._ he did not seem in the least astonished, to me; i did not see him take any notice. _q._ he told you he was in the rules of the bench, and he did not see how he could come to chelsea that day? _a._ he told me he was not out of the rules of the bench, and if he came to chelsea, he did not know it. _q._ it was by the conversation with the servant, you fix the date? _a._ no, i knew the date. _q._ on what do you found your recollection that it was on that day? _a._ i know that was the day. _q._ the th of february he was within the rules of the bench, and might have been at chelsea? _a._ no, it was not the th. _q._ how soon did you tell any body that you saw him on the th? _a._ i told my wife that night. _q._ your wife is here? _a._ yes, she is. _q._ how soon did you tell any body besides william smith, the servant, any thing about him? _a._ i told no body but william smith, and my wife. _q._ not to this moment? _a._ yes, i did, when i was sent for. _q._ when was that? _a._ last monday week. _q._ then you were seen by the attorney, and examined about this matter? _a._ yes. _q._ was any body so particular as to ask you how this gentleman was dressed, when you saw him on this sunday? _a._ no. _q._ now i am so particular; will you tell me how he was dressed? _a._ he had a black coat, and black waistcoat, and grey pantaloons or overalls, but i will not say which. _q._ you have seen your old acquaintances, the two smiths, here this morning? _a._ i have seen one of them this morning. _q._ which was that? _a._ william, the servant. _q._ had you any conversation with him about the dress on this sunday? _a._ no. _q._ you know mr. de berenger very well? _a._ yes. _q._ did he wear whiskers on that sunday? _a._ no, he was close shaved upon that sunday, i am certain. _re-examined by mr. richardson._ _q._ when you saw mr. smith, on the th of march, what question did you ask him? _a._ i asked him, whether his master was out of the rules of the bench? that i had seen him on the sunday fortnight, that he called at our yard, to know if the coach was gone; that i told him, the six o'clock coach was gone, but the seven o'clock coach would go in three quarters of an hour. _q._ you related the circumstance that had passed on the th of february, and then asked him, whether his master was out of the rules of the king's bench? _a._ yes. _q._ what did he answer? _a._ that his master was not out of the rules, and that if he was at chelsea, it was more than he knew of. _lord ellenborough._ you were struck with seeing him out of the rules? _a._ yes. _q._ you thought it a very wrong thing of him? _a._ yes. _q._ and being shocked at it, you had a mind to enquire of his servant, whether he was within the rules? _a._ yes. _q._ you did not say to him, good god, sir, how is it you are out of the rules on this sunday? _a._ he did not stop to have any conversation. _q._ if he had stopped long enough, you would have told him so? _a._ i do not know that i would. _q._ where was he coming from, at a quarter past six? _a._ he came up from the water-side; i cannot tell which way he came to the stable-yard gateway. _q._ and he seemed in a hurry to get home? _a._ he did. _q._ how far is it from asylum place to chelsea? _a._ it is two miles from the bottom of our street to buckingham-gate, and it is a mile from that to the middle arch of westminster-bridge; i cannot tell how far it is from that to the asylum. _q._ you did not see where he came from? _a._ no. _q._ but he was in a hurry to get home? _a._ yes. _mr. park._ it is three miles and a half, or four miles, my lord. _a juryman._ was it day-light or dark, when you saw him? _a._ it was between the two lights; it was not very clear at that time. _mr. park._ i will call this woman, and will put a question to her; i had not intended it, conceiving that what he said to his wife, could not be evidence. _lord ellenborough._ you will call her, or not, as you see fit; i do not desire to have more persons called than is necessary. _mr. park._ i must call her, as your lordship has asked the question, what he told her? _mr. brougham._ if your lordship will permit us, we will examine hopper now; he is extremely ill, i understand. _lord ellenborough._ if you please. _mr. thomas hopper sworn._ _examined by mr. brougham_. _q._ what are you? _a._ an architect. _q._ do you know mr. cochrane johnstone's premises at allsop's buildings? _a._ i saw them two nights ago. _q._ you saw a piece of ground that he possesses there? _a._ i did. _q._ will you look at that plan, which is lying there, for the laying out of the ground? (_the witness looked at it._) _a._ these plans i saw at the time. _lord ellenborough._ that is two nights ago? _a._ yes, it is. _mr. brougham._ did you at the same time see the prospectus of the plan for laying out the place? _a._ this, i believe, is a copy of it. _q._ what should you think is a reasonable compensation to the person who arranged that plan, and made that drawing, and the others connected with that plan, and the prospectus? _a._ that it would be almost impossible for me to tell; that must be governed by the trouble that was attendant upon it, and of course of that i cannot be a judge. _lord ellenborough._ it is a very well drawn plan? _a._ certainly it is. _mr. brougham._ are you aware, that a plan of that kind cannot be made out, without a survey of the ground? _a._ certainly. _q._ are you aware, that in making a plan of that sort, there are various other plans previously made, before it comes into that state? _a._ no doubt, there must be. _q._ can you take upon you, from that, and from your understanding of the manner in which such plans are made, to say what would be a fair reasonable compensation for the trouble bestowed? _a._ mr. cochrane johnstone, whom i saw upon the premises, made a representation to me---- _mr. gurney._ we cannot hear that. _mr. brougham._ from your own knowledge of the subject, and the ground, what should you take to be a reasonable compensation? _a._ it is so governed by the trouble attending it, that i cannot say, with any precision; i should judge, from the calculation of the trouble that must attend it, that a compensation of from two to three hundred pounds, might not be excessive. _---- m'guire sworn._ _examined by mr. park_. _q._ are you the wife of the person who has just been here now? _a._ yes. _q._ did you know mr. de berenger, when he lived at chelsea? _a._ no. _q._ did you know smith, his servant? _a._ yes. _q._ did your husband on any day, and if so, on what day, mention to you his having seen mr. de berenger, smith's master? _a._ yes, he did on the th february, about ten o'clock at night. _q._ when he came home? _a._ yes. _q._ how do you happen to know it was the th of february, more than the th or the th? _a._ it was the sunday before shrove-tuesday. _q._ what led you to recollect it so particularly? _a._ it was my child's birth-day. _q._ do you mean that shrove-tuesday was your child's birth-day, or that sunday? _a._ the sunday; the first child i ever had in my life. _q._ on that day he told you he had seen mr. de berenger at his master's yard? _a._ yes, he did. _lord ellenborough._ did he tell you at what o'clock he saw him? _a._ yes; at about a quarter past six. _q._ did he tell you that he thought it was shocking he should be out of the rules? _a._ yes, he did; that he wondered whether he had got his liberty or not. _q._ did he say it was shocking he should be out of the rules? _a._ i cannot particularly say, whether he said it was shocking or not. _q._ had you known these smiths long? _a._ about three years and seven months. _q._ you are in the habits of visiting them sometimes? _a._ smith came backwards and forwards to chelsea, when his master lived at the end of the bridge. _q._ have you kept up your acquaintance with them, since they lived in chelsea? _a._ yes, i have. _q._ you are very well acquainted with them? _a._ yes, i am. _q._ had you seen him that day, the th? _a._ no; i saw him that day fortnight. _q._ your husband did not stay at home to keep the birth-day of his child? _a._ no; my husband is an ostler, and he cannot come and go at his own time. _q._ but he mentioned about the rules to you, did he? _a._ yes, he did; he said he should enquire from smith, the first time he saw him, whether his master had got his liberty or not. _q._ had your husband an anxiety to know whether he had got his liberty or not? _a._ no, i cannot say that he seemed anxious, but he said he wondered how he came down there. _henry doyle tragear sworn._ _examined by mr. richardson._ _q._ do you remember being at mr. donithorne's house, in york-street, westminster, in the month of february last? _a._ yes, i do. _q._ were you staying at his house? _a._ yes, i was. _q._ living and sleeping there? _a._ yes. _q._ when did you go there? _a._ i went there on the th of february. _q._ on what occasion? _a._ i let my house, no. , little queen-street, holborn, where i had carried on the hatting business, and i went from thence to donithorne's. _q._ was it on the th you let your house, finally. _a._ yes, it was. _q._ did you stay at mr. donithorne's until or after the sunday following, the th of february? _a._ yes, and until this very time. _q._ are you acquainted with the prisoner mr. de berenger? _a._ yes, i have seen him frequently previously to that, at mr. donithorne's house. _q._ do you or not, remember having seen him on sunday the th of february? _a._ yes, very particularly on that day. _q._ did you see him more than once on that day? _a._ yes, i saw him twice on that day. _q._ when was the first time you saw him? _a._ between nine and ten in the morning. _q._ when was the last time you saw him? _a._ between eight and nine in the evening of the same day. _q._ did he stay any time when you saw him the last time on that day? _a._ yes, he did. _q._ both these times you saw him in mr. donithorne's house? _a._ yes. _q._ how long did he stay when he came in the evening? _a._ it might be somewhere about half an hour; i cannot exactly say; it might be an hour, or it might be less. _q._ was it thereabouts, as nearly as you can remember? _a._ yes; it was, as nearly as i can remember. _q._ you are sure it was somewhere thereabouts? _a._ yes. _q._ was he a visitor of mr. donithorne's, or did he come on business? _a._ i have seen him frequently talking to mr. donithorne, about drawings, designs of furniture, and things of that sort. _q._ what is donithorne? _a._ he is a cabinet maker. _q._ you had seen him before that time? _a._ yes; mr. donithorne has shewn him to me. _lord ellenborough._ what are you yourself? _a._ a hat manufacturer by trade. _q._ you have been out of business since that time? _a._ yes, i have; not entirely out of business; but i have not a house at the present moment; i went there to reside, till i saw a house that would suit my purpose. _q._ he was talking with mr. donithorne? _a._ yes, he was. _mr. richardson._ was any body else present? _a._ yes; there was my wife, mr. donithorne and mrs. donithorne; we were in the parlour in the evening, when he came. _q._ did he sit down? _a._ he said that he would not come into the parlour to disturb the company; mr. donithorne went to the back part of the house with him, into the garden. _q._ did he come into the parlour? _a._ yes, he did just come into the parlour; but he said he would not disturb the company. _q._ did he afterwards come in? _a._ i do not know whether he came in afterwards or not. _q._ but you saw him there? _a._ i saw him in the house. _q._ you are well acquainted with his person? _a._ yes; i had seen him repeatedly before that. _q._ you did not see him after that? _a._ no, i did not. _cross-examined by mr. gurney._ _q._ do you remember being struck with any alteration in his appearance that night? _a._ no. _q._ how long before that time had he left off wearing the large whiskers he used to have? _a._ i cannot say. _q._ he had not them on that night? _a._ i cannot say that i saw any alteration. _q._ he had no whiskers on that night? _a._ no. _q._ he had never been used to wear whiskers? _a._ that i cannot say. _q._ you knew him well, and had seen him often? _a._ yes. _q._ and you mean to say, you do not remember whether he wore whiskers on not? _a._ he might or might not, i do not look so particularly into a gentleman's face, as to see whether he has whiskers or not. _q._ i happen to look at your face, and i cannot help seeing that you have whiskers, and a man who has such, might look at those on another person's face; do you mean to say, that in viewing the countenance of a gentleman you were acquainted with, you did not look so as to see whether he had whiskers? _a._ not unless a person spoke to me about them. _q._ unless a person said "whiskers," you would not look at them? _a._ no. _q._ mr. de berenger had not whiskers that night, however? _a._ no. _q._ you were a hatter, in business at one time, and are not now? _a._ yes; i sell a great many hats now, though i have no house. _q._ perhaps though you do not take notice of a man's whiskers, you take notice of his coat; what coat had he on? _a._ a black coat. _q._ that you did take notice of? _a._ yes. _q._ it was so remarkable he should wear a black coat, you took notice of that? _a._ no; i do not know that it is remarkable; but i know he had a black coat. _q._ was his head powdered? _a._ i cannot say; i did not see his hat off. _q._ he staid half an hour with his hat on? _a._ he went into the back part of the house. _q._ do you mean to say, he staid half an hour in the house with his hat on? _a._ i do not mean to say, he stopped the whole time in house; he went into the garden. _q._ on the th of february he went into the garden? _a._ yes. _lord ellenborough._ did he stand ancle-deep in the garden, or how? _a._ i cannot say, indeed. _mr. gurney._ was not there a good deal of snow at that time on the ground? _a._ i cannot say, indeed. _q._ at what time was this? _a._ between eight and nine in the evening. _q._ and they took a walk in the garden? _a._ yes; it was in consequence of some alteration they were going to make in the premises. _q._ so that they went at ten o'clock at night to survey this alteration in the premises? _a._ no; it was between eight and nine. _q._ it is just as dark then as it is at ten o'clock; they went to make a survey in the morning, did they not? _a._ they had made a survey in the morning, i saw them pacing the garden. _q._ you told me they went out in the evening, to make a survey of the premises? _a._ i cannot say what they went for, but i know they went there. _q._ do you happen to know, whether mr. donithorne is acquainted with mr. tahourdin, the attorney? _a._ i do not know whether he is acquainted with him, or not. _q._ you swear that? _a._ i swear that; i do not know that he is acquainted with him particularly. _q._ upon your oath have you not seen them together? _a._ yes, i have. _q._ had not you seen them together before that time? _a._ no, i had not. _q._ how often have you seen them together since? _a._ i never saw them together but once. _q._ when was that? _a._ one day last week. _q._ do you mean to swear, that you did not know that they were acquainted with each other before that time? _a._ yes, i do. _q._ what is mr. donithorne; a cabinet-maker? _a._ yes. _q._ this you say was about making alterations in the garden; are they made? _a._ no, they are not. _q._ they are waiting till february perhaps, to survey this garden again? _a._ i do not know, indeed. _q._ when were you first sent for to become a witness on this occasion? _a._ i never was sent for. _q._ when did you go to any person upon the subject? _a._ i never went to any place upon the subject, further than going myself to mr. tahourdin; but he did not send for me. _q._ you went to mr. tahourdin without being sent for? _a._ i went with mr. donithorne. _q._ when was that? _a._ i cannot exactly say, but i think it was some day last week. _q._ did you know before last week that you were to be a witness? _a._ no, i did not. _q._ did you know before last week, that it was at all material that you should recollect the th of february? _a._ no, i did not know it; but i can tell you one particular thing that makes me recollect it; i let my house, no. , little queen-street, holborn, on the th of february, to samuel nicholson, and went to mr. donithorne's to live; and on that very morning, the th, the sunday, mr. donithorne (i rather indulge myself with lying in bed on sunday morning) came to my door and knocked, and told me mr. de berenger was come to look over the house, and that if i would get up he should be obliged to me. _mr. gurney._ i congratulate you on the cure of your deafness[ :a]. _lord ellenborough._ you lay a-bed and were disturbed? _a._ no, not particularly; only i lay a-bed on the sunday till about nine o'clock. _lord ellenborough._ do you know smith, de berenger's servant? _a._ i have seen him. _re-examined by mr. richardson._ _q._ you saw them in this piece of garden in the morning? _a._ yes. _q._ my learned friend has asked, whether the alterations are carried into effect, or not? _a._ they are not. _q._ do you know, whether mr. de berenger went away after that? _a._ he stopped about half an hour. _q._ has he been absent from a period soon after the th of february? _a._ yes; i never heard much about him till last week. _lord ellenborough._ when they came to you, you immediately recollected the th of february? _a._ when who came down to me? _q._ when you went to mr. tahourdin, you immediately recollected the st of february? _a._ he asked me, whether i could recollect on what day i came to this house; and i told him i do not know that i can recollect exactly; but i can go to mr. nicholson, upon whom i drew a bill at two months, for half the money for the goods and fixtures of my house, and ask him whether it is correct. _q._ he asked you, whether you recollected the th of february? _a._ yes. _q._ did you say you recollected it by being disturbed in the morning? _a._ yes, i did. _q._ there was no snow in the garden when they paced it in the way you have spoken of? _a._ i cannot positively say; i did not charge my memory with that. _q._ are you perfectly certain in your recollection, as to having had your sleep disturbed? _a._ yes, i am perfectly certain of that. _q._ you know de berenger very well? _a._ i have seen him several times at mr. donithorne's house? _q._ and you know tahourdin? _a._ i never saw him till last week. _q._ do you know where mr. de berenger dined that day? _a._ no, i do not. _q._ at what time did he come in the morning? _a._ between nine and ten. _a juryman._ that might be any other sunday morning, as you were in the habit of indulging on a sunday morning? _a._ no, but i know the time; it was the sunday after i let my house; i have it impressed upon my mind that it was on the th of february i saw him at this house in york-street, westminster. _a juryman._ then the lying in bed in the morning had nothing to do with it? _a._ no. _lord ellenborough._ have you ever been bail? _a._ yes. _q._ have you ever justified in any action? _a._ yes. _q._ what action was that? _a._ a fifteen-pound action. _q._ how long was that ago? _a._ five or six months. _q._ is that debt paid? _a._ yes. _q._ did you ever justify in any other action? _a._ yes, i have. _q._ is that satisfied? _a._ yes. _q._ you are clear as to that, that these debts are paid? _a._ yes. _q._ were you never bail but twice? _a._ i do not recollect that i was; i might be, but i do not recollect; but i have not been in the habit of being bail for people. _q._ you have not been in the habit, but you have been twice:--what was the other sum besides the fifteen pounds? _a._ i do not exactly know what the money was; but the other was more than that, a good deal. _q._ that is only within a few months? _a._ i dare say that is five months back. _lord ellenborough._ you may go away, and let me advise you not to be either a bail or a witness again. if the master had been here with the book, i have no doubt you might have gone much further with him. footnote: [ :a] the witness, at the commencement of the cross-examination, had affected not to hear; mr. gurney gradually sunk his voice, and at last spoke in a very low tone, and the witness heard, notwithstanding. _mrs. tragear sworn._ _examined by mr. park._ _q._ are you the wife of the last witness, mr. doyle tragear? _a._ yes. _q._ do you know the defendant, mr. de berenger? _a._ yes. _q._ have you seen him often? _a._ yes, i have. _q._ were you at mr. donithorne's house in the month of february last? _a._ yes. _q._ at what time did you and your husband go to stay there, after having given up your house? _a._ the day we gave up our house was the th of february. _q._ and then you went down to mr. donithorne's? _a._ yes. _q._ what day of the month was it after you had gone there, that mr. de berenger called there? _a._ on the sunday. _q._ that would be on the th? _a._ yes. _q._ what time in the morning did he first call? _a._ between nine and ten. _q._ do you remember, whether your husband was up or not, when he first came. _a._ no, he was not. _q._ what is mr. donithorne? _a._ he is in the cabinet business. _q._ did you see mr. de berenger do any thing that morning? _a._ yes; mrs. donithorne came up (we were not up that morning) and desired us to get up and get our rooms ready, for that she had a gentleman to look over the house. _q._ in consequence of that you did get up? _a._ yes. _q._ did you see mr. de berenger afterwards there, when you got up? _a._ yes; i saw him; i drew down the sash in the back room, and i saw him through the window; i saw him in the garden. _q._ does the sash draw up or down? _a._ both. _q._ what was he doing in the garden? _a._ he appeared to be measuring the ground, i believe. _q._ had you any conversation with mr. de berenger at that time? _a._ no. _q._ you are sure he was the man? _a._ i am sure he was. _q._ did you see him again that day at mr. donithorne's, and at what hour in the day? _a._ i did; i saw him again in the evening. _q._ at what time? _a._ between nine and ten--i mean between eight and nine. _q._ did he stay any time then? _a._ i believe he did; we were in the parlour, along with mr. and mrs. donithorne, and he came; and he (mr. donithorne) asked him to come in; and he said, he would not come in to disturb good company. _q._ are you sure he was the man? _a._ i am sure he was the man. _q._ how near was he to you? _a._ we got up, of course, when the gentleman was coming in, and we saw the gentleman in the small parlour. _q._ what happened then, when you got up? _a._ he went to speak with mr. donithorne, and they walked backwards into the garden. _q._ did you see them go out of the door that leads into the garden? _a._ yes, i saw them go backwards. _q._ you did not go to look after what they were doing? _a._ no. _q._ did you afterwards see them again, after they came from the back part of the house? _a._ no, i did not. _q._ you saw mr. de berenger no more? _a._ no. _cross-examined by mr. bolland._ _q._ how long has your husband had the affliction of deafness? _a._ he has, at times. _q._ so we have seen to-day; you were indulging that morning in bed, as well as your husband? _a._ yes. _q._ and mrs. donithorne came to wake you? _a._ yes. _q._ it was natural she should do it? _a._ yes. _q._ mr. donithorne did not wake you? _a._ no. _q._ but mrs. donithorne came and waked you, and wished you to get up, because somebody was coming to see the house? _a._ yes. _q._ do you mean to say, that mr. de berenger afterwards went through the house, so as to render that necessary. _a._ he went up into the attics. _q._ did he go into your room? _a._ he did not. _q._ what occasion was there for your getting up to see him measure the garden? _a._ there was no occasion for that; but we were getting up, and she thought the gentleman might come into our room. _q._ was she in the habit of calling you? _a._ sometimes she has done it. _q._ who was with mr. de berenger, besides donithorne. _a._ i do not remember seeing any other. _q._ who carried the rod with which they measured; was it mr. de berenger or donithorne? _a._ i cannot say, indeed. _q._ you may recollect who held the paper, and put down the measurements; which of the two carried the paper, and which carried the measuring rod? _a._ i cannot tell which of the two it was, they being at the top of the garden almost. _q._ it is only a small garden, we know the situation? _a._ it is a long garden. _q._ which of them was it? _a._ i cannot say, indeed, which of them it was. _q._ but one of them did? _a._ yes. _q._ was there snow on the ground then? _a._ no, it was a wet morning, i think. _q._ are you sure it was a wet morning? _a._ i think it was a wet morning, but i did not take particular notice of the day. _lord ellenborough._ it had rained a good deal, had it? _a._ yes, it had. _q._ there was a good deal of rain last february, was there? _a._ i think that was a wet morning. _mr. bolland._ had the effect of the rain been such, as to give them a good view of the surface of the ground, so as to measure? _a._ yes, i think it had. _q._ the snow was melted? _a._ i think it was. _q._ and you saw them lay the rule regularly, that they could take the measurement properly? _a._ yes. _lord ellenborough._ did your husband fail, when he gave up the hatting business? _a._ why, yes. _q._ there had been no commission of bankrupt against him? _a._ no. _q._ and he gave up his business in that house, and you have been since living at mr. donithorne's house? _a._ yes. _q._ how long has he been in the bail line? _a._ in the bail line! _q._ how long has he been bail for people? _a._ that is unknown to me, if he has. _q._ you have never known of people coming after him to be bail? _a._ no, i have not. _q._ he has told us he has been bail for two persons; you know nothing of that? _a._ no. _q._ when did he fail? _a._ on the th of february. _q._ has there been an execution in the house you lived in since that? _a._ no. _q._ is mr. donithorne a creditor of your husband's; do you owe him money? _a._ no. _q._ is he a relation? _a._ yes; he is a cousin. _lord ellenborough._ how far is york-street, westminster, from the asylum? _mr. park._ i understand it is behind the barracks in bird-cage walk. _lord ellenborough._ it is about a mile i should suppose then? _mr. park._ from a mile to a mile and a half. _mr. gurney._ is mr. donithorne here? _a._ i believe he is. _mr. gurney._ then i suppose we shall see him. _isaac donithorne, sworn._ _examined by mr. richardson._ _q._ we understand you live in york-street, westminster? _a._ yes. _q._ do you remember mr. tragear coming to your house, after he had given up his house in queen-street? _a._ yes. _q._ do you remember what day it was? _a._ i believe it was thursday; i am positive it was. _q._ what day of the month? _a._ the th, i think, or the th of february. _q._ are you well acquainted with the person of mr. de berenger? _a._ very well; i have been for some time. _q._ you are a cabinet-maker? _a._ i am. _q._ had mr. de berenger furnished you with designs for furniture at any time? _a._ yes, he had. _q._ do you or not remember seeing him on the sunday after that time when tragear came? _a._ yes. _q._ that would be the th? _a._ yes. _q._ at what time in the day did you first see him? _a._ between nine and ten in the morning. _q._ for what purpose did he come? _a._ to look over the grounds. i was going to make some alterations in my little garden, and also about other work that i had in hand. _q._ what other work do you mean? _a._ work i had for miss johnstone, no. , great cumberland-street; work i had in hand; i furnished all her house. _lord ellenborough._ mr. cochrane johnstone? _a._ yes. _mr. richardson._ you were furnishing mr. johnstone's house at that time? _a._ a house for miss johnstone. _q._ did you see him again in the course of that same day? _a._ between eight and nine in the evening. _q._ did he call again at your house in york-street? _a._ yes. _q._ about what time was it? _a._ it was between eight and nine; i did not take particular notice of the time, not expecting there would be any question about it; we were all sitting in the parlour, and mr. de berenger knocked at the door, and i let him in, and he walked in, and while i was handing a chair to him to sit down, he said i will not disturb your good company, and he said he would walk into the back; and he did, and he staid about a quarter of an hour or twenty minutes. _q._ did you walk back together? _a._ only into the parlour; in the morning, we were, i dare say, an hour together in the garden. _q._ did you go into the garden in the evening? _a._ we did not. _q._ what was the purpose of his calling in the evening? _a._ merely to answer the purpose of the morning, we meant to do something in the garden; he said he would call if he came that way in the evening, to tell me when he would draw a plan for the work i was going to do in the garden; i was going to build a room there. _q._ he was to draw a plan? _a._ yes. _q._ in the evening he called about the same business? _a._ yes. _q._ was any further answer to be given to him? _a._ this was the business; i was going to turn the front part of my house into an inn, and to make the back part of my house into pleasure grounds. _q._ and you had consulted him about the mode of doing it? _a._ yes, i had; mr. de berenger told me he could make out a handsome plan for me. _lord ellenborough._ did he tell you what you were to pay for it? _a._ that house was not his, i pay £. a year for it. _q._ he did not tell you, that from £. to £. would not be excessive for a good plan? _a._ not for that plan. _q._ what did you expect to pay for a good plan? _a._ that depended upon what sort of plan it might be, they might make a good plan worth that. _q._ you would not scruple paying that for a good plan? _a._ i think i should for that for i had not the money to pay it. _q._ he put down the measurements in the morning? _a._ yes, he paced it over, but he told me he would come again and measure it quite correct. _q._ he put down the figures? _a._ i do not know precisely whether he did or not. _q._ he had his pencil? _a._ yes, and a ten-foot rod that he carried. _q._ did he bring a ten-foot rod to walk with? _a._ i have a ten-foot rod myself, as a cabinet maker, and mr. de berenger paced it over. _q._ what sort of a morning was this? _a._ a damp cold morning, a kind of misty rain; very cold. _mr. richardson._ he said he would call at a subsequent time? _a._ yes, he did; here are all the designs. _q._ those are the designs of furniture? _a._ those are the designs of furniture that i made for miss johnstone, or the honourable cochrane johnstone, for furniture in great cumberland street; i believe i have some notes respecting them. _cross-examined by mr. adolphus._ _q._ mr. de berenger came to you, as a friend of mr. cochrane johnstone, to give you plans for mr. cochrane johnstone? _a._ that was the case. _q._ he never gave you plans for any body else's furniture? _a._ never. _q._ you never employed a draftsman of his class to give you plans? _a._ no, i made up two pieces of furniture from his plans, to go into a library; that was the first thing. _q._ he came as a friend of mr. cochrane johnstone's? _a._ yes, to look to the furniture. _q._ and then, out of friendship to you, knowing you had little alteration to make, he proposed to assist you? _a._ yes; i first proposed the business, and mr. de berenger approved of it. _q._ he was going to make a survey of the inside of your house that morning; was he not? _a._ he did of that also. _q._ particularly your lodgers bed-room; he was very anxious to see that? _a._ and all my own. _q._ he was very anxious to see your lodgers bed-room? _a._ not that particularly. _q._ you went and knocked up mr. tragear? _a._ yes; i went up and desired them to rise, and to clear up their room, for that he was coming there. _q._ did you desire them to rise yourself? _a._ yes, there is not a doubt of it, for i went up stairs. _lord ellenborough._ will you take upon you, upon your oath, to say, that you went into that bed-room out of which they had come? _a._ yes, twice over. _mr. adolphus._ what is your christian name? _a._ isaac donithorne. _q._ do you know any thing about the stock exchange? _a._ a little; something about it. _q._ have you ever done business there? _a._ never in my life. _q._ have you ever employed an attorney? _a._ yes. _q._ who is your attorney? _a._ that gentleman there. _q._ what is his name? _a._ mr. tahourdin. _q._ in what particular business is mr. tahourdin your attorney? _a._ by the desire of the honourable cochrane johnstone, who thinks himself very ill used by a set of villains.---- _q._ after all that preamble, as to mr. cochrane johnstone's being ill used by a set of villains, will you answer my question, what mr. tahourdin is doing for you? _a._ issuing some writs. _q._ what have you desired him to do? _a._ to issue some writs. _q._ how many? _a._ a hundred and thirty-five. _lord ellenborough._ a hundred and thirty-five writs, of what kind? _mr. park._ qui tam actions, and that was the reason i did not propose calling him. _mr. adolphus._ are you to pay mr. tahourdin the costs of those actions, or mr. cochrane johnstone? _a._ mr. cochrane johnstone most undoubtedly, i should think. _mr. park._ i really think that ought not to be asked. _lord ellenborough._ if a man at my instance issues a hundred and thirty-five writs, to be sure i must bear him harmless; how long has your neighbour tragear failed? _a._ why he never failed, to my knowledge; he left his shop publicly, and came to my house. _q._ he does nothing in the bail way, by way of filling up his time, does he? _a._ i know nothing about his private concerns. _lord ellenborough._ you take upon yourself to say, that you know he has not failed; is not his wife likely to know, she has told us he did when he came to your house. you may go about your business. _a juryman._ are you a journeyman or a master? _a._ i am a master in a small way, sometimes i keep three or four men. _lord ellenborough._ whom else do you call? _mr. park._ no more, my lord. _lord ellenborough._ do not you prove where de berenger dined that day? _mr. park._ no, i have no means of doing that. _mr. gurney._ i beg to call mr. murray, to put one question to him, in contradiction to smith? _lord ellenborough._ if that question occasions a reply that will throw us into the night; if you think this case of alibi requires a serious answer, you will of course give it; but i think you would disparage the jury by doing so. _mr. gurney._ i will not call him, my lord. _lord ellenborough._ do not let me supersede your discretion, if you think there is any use in having your witness. _mr. gurney._ no, my lord, i am quite content with the case as it stands. reply. mr. gurney. may it please your lordship; gentlemen of the jury, it is now my duty to make a few observations in reply on this momentous cause; and, i assure you, that i rise to the discharge of that duty with feelings of no ordinary nature. it is a duty in which it is impossible to feel pleasure; for every gentleman must feel degraded in the degradation of a gentleman, and every englishman must feel mortified in the disgrace of a man whose name is associated with the naval or military glories of his country. but we are here to try these defendants by their actions; and whatever their conduct may have been in other respects, by those actions must they stand or fall. by the actions of these defendants, as respecting the matters charged by this indictment, you are now called upon to pronounce upon all the evidence that you have heard, whether they are innocent or guilty. gentlemen, if in the outset of this case i addressed you with confidence, as to the result, i address you now with confidence, increased ten-fold, when i recollect the arguments by which these defendants have been defended; when i recollect the evidence which _has_ been adduced in their defence, and when i recollect too the evidence which has _not_ been adduced in their defence; the first, as it appears to me totally failing, in making out a case of innocence; and the two latter concluding to their guilt. gentlemen, as it is the smallest part of the case, i will take up that part upon which you were addressed last this morning, by my learned friend mr. serjeant pell, which has been denominated in this transaction the underplot. my learned friend endeavoured, with great ability and ingenuity, to persuade you, that the transactions which have been brought before you, did not constitute one plot, consisting of two parts; but two separate and distinct plots, two conspiracies totally unconnected with each other. and my learned friend concluded very properly, that if he could convince you of that, he should entitle his own clients to an acquittal on this indictment. gentlemen, if there were two conspiracies, then miracles have not ceased; for unless you can believe, that a most extraordinary miracle has occurred, it is quite impossible to conceive that there were two plots. it is not necessary in a conspiracy, that every party should know every other party in the conspiracy; it is not requisite that he should be acquainted with all the dramatis personæ, and the character assigned to each; it is enough if they engage in the general plan to forward the same general end, and each takes the part which is assigned him to the furtherance of that end. now, gentlemen, look at the whole of the case, and see whether it is possible to believe, that these persons who came in the second post-chaise from northfleet to london, were not cognizant of part of the plan, at least, if they were not of the whole, and that they were not aiding in the general conspiracy, to give a temporary rise to the funds on the st of february. that they afforded very material assistance in the completion of that purpose, is proved to demonstration. independent of the facts, we have their own testimony against themselves, which is quite conclusive. ask m'rae, whether the plot was one or whether it was two? m'rae was ready to come forward, and to impeach _all_ the parties who were concerned in the conspiracy. did he not, therefore, know the _whole_? when mr. cochrane johnstone proffered him as a person who should betray the _whole_, and inform against _all_ the parties conspiring. are we to be told, that mr. cochrane johnstone thought he knew a _part_ only instead of the _whole_? was mr. cochrane johnstone meditating a second fraud upon the stock exchange? was he endeavouring to get another £. , out of them, by tendering them a witness, under pretence of his disclosing the _whole_, when he had it in his power to disclose no more than they already knew? gentlemen, m'rae has been surrendered by my learned friend mr. alley, who never deserts his client if he can render him any service. no advocate is more zealous for his clients; yet my learned friend felt the proof given so irresistible, that he should be disgracing himself, if he stood up to ask you to disbelieve that proof, or even to hesitate about it, and he surrendered his client at once. mr. m'rae then stands here confessedly guilty of this conspiracy. mr. m'rae, who on the th of february had been proposing to vinn the same plot, which was executed by de berenger on the st. you find his companions in the post chaise were sandom and lyte, and their employer, by his own acknowledgment, the defendant holloway. what can you wish more to prove that they were all engaged in this transaction? mr. serjeant pell says, you must take holloway's confession altogether; and because he declares, that he was not concerned with the cochranes and butt, you are to take that to be the fact.--gentlemen, i do not assent to that doctrine, that when a defendant makes a confession, you are to take all the circumstances he alleges in his own favor, at the same time that you take those which are against him. mr. holloway came to propitiate the stock exchange committee; he came to ask them not to prosecute him. he could not have asked for that forbearance, if he had confessed a participation with de berenger and the cochranes. the only chance he had, therefore, was to deny his having any part in that plot, which, he knew, they were most anxious to unravel. but taking the whole of the case together, i think that it is impossible for you to entertain the smallest doubt upon this part of the subject. i come therefore, gentlemen, to the other part of the case, upon which, after the great length of time which you have employed upon this case, and the fatigue you have undergone, i will not trespass upon you long. gentlemen, this part of the case branches itself into three or four heads, upon each of which i must make a few observations. my learned friend, mr. serjeant best, addressed you at considerable length upon the subject of the stock transactions of his three clients, lord cochrane, mr. cochrane johnstone, and mr. butt; and he argued, that because it appeared not by any accounts which he put in, in addition to mine, but by the accounts which i gave in evidence, that these parties had been large dealers in consols and omnium, and had had large balances previous to the st of february; that therefore you were to believe, that they had on that day no possible interest to commit this fraud. that because they had had on a former day a larger balance, they could have no possible inducement to the commission of this crime. gentlemen, observe the amount of the balance on that day, it was in omnium and consols very nearly a million. reduced to consols it amounts to £. , , . then attend to the evidence of mr. baily, who tells you that the fluctuation of one-eighth was a gain or loss of two thousand pounds. though they had been both buying and selling, yet their purchases had been much larger than their sales, and their attempts to purchase larger than their actual purchases. on saturday the th, mr. butt had endeavoured to purchase one hundred and fifty thousand, and actually purchased fifty thousand. on this monday, the st, all the three have this immense quantity of stock upon their hands; they have no means of getting rid of it, for mr. baily has told you, that but for this fraudulent transaction, it would have been impossible to have got rid of it, but at a great loss. they had been buying as a person must do, to keep up the market, to redeem himself from loss; and on this memorable day, all this stock is sold, it is sold at a profit of upwards of ten thousand pounds; and if it had been sold without a profit of one single farthing, still the getting out without a great loss, was to them very great gain. recollect gentlemen, that just one month afterwards came the news of the rupture of the negotiation at chatillon, when the premium on omnium fell from to per cent.; if that news had come instead of this false news, on the morning of the st of february, the loss of these three defendants, would have been upwards of one hundred and sixty thousand pounds. these persons, therefore, were so involved, that ruin stared them in the face, and when they were in this situation, they did as i allege, and as i maintain i have proved by evidence perfectly irresistible, engage in this conspiracy, to give this fraudulent rise to the funds by this false news; and the moment the object had been attained of the rise of the funds, that moment all the stock was sold, and sold to the profit that i have proved. so much for these several stock transactions, which supply the corrupt motive by which these defendants were instigated to the commission of this crime. then, gentlemen, we come to that which is a very important part, and indeed a main part of this case, _the identity of mr. de berenger_; that identity, including the question of hand-writing. upon this subject we have had, for the last two hours, the evidence which has nauseated every man in court; the evidence of the alibi, which no man living can believe; in which no two witnesses agree; in which we have contradiction after contradiction from every one of them. my learned friend, mr. park, last night told us we should have the evidence of two watermen, who had rowed mr. de berenger across the thames, who knew his person perfectly well, and who recollected the occurrence particularly, because it was the first sunday after the frost had broken, and the river became navigable. i suppose the river is frozen again this morning as they are not here. gentlemen, the interval of the night has made the advisers or manufacturers of this part of the case reflect upon it, and they have brought, instead of the two watermen from the river, the irish ostler from chelsea. gentlemen, they who projected this alibi, did not attend to one circumstance, which cannot fail to have struck you long ago, namely; that this is a case perfectly unassailable by alibi. let it be supposed, that i had not identified mr. de berenger by the persons who saw him at dover; by the persons who saw him on the road; by those who saw him get out of the chaise at the marsh gate, and get into a hackney coach; that i had not identified his countenance by any one of them, still his identity is established beyond all contradiction, for knowing that an alibi would be attempted, i defeated it by anticipation. i take up de berenger at dover as i would a bale of goods--i have delivered him from hand to hand from dover to london--i have delivered him into the house of lord cochrane--and i have lord cochrane's receipt acknowledging the delivery. you have, at the ship at dover, the person pretending to be colonel du bourg, the aid de camp, in a grey military great coat, in a scarlet uniform embroidered with gold lace, and he has a star and a medallion. you have him traced from stage to stage, identified by the napoleons with which he is rewarding his postillions; the first postillion delivers him to the second, the second to the third, and so on till he is landed in the house of lord cochrane. who went into the house of lord cochrane? ask lord cochrane. it was mr. de berenger, and it is not pretended that any other person entered that house in that dress, or any thing resembling it; and therefore if i had not any witness to speak to the identity of the countenance of mr. de berenger, i have proved such a case as no alibi can shake. but add to that the evidence of identity. i have had much experience in courts of justice, and much upon the subject of identity, and i declare, i never in my life knew a case of identity, by the view of countenance, so proved. the countenance of mr. de berenger is not a common one, a person who has observed it cannot have forgotten it. i do not call merely such persons as have seen him at the messenger's, or in the court of king's bench, or anywhere else. i put the case to the severest test, calling witnesses who had not seen him since his apprehension, desiring them to survey the court, mr. de berenger sitting, as he has done, undistinguished from other persons, in no conspicuous situation, and you saw, how one after another, when their eyes glanced upon his face, recognised him in an instant as the person who had practised this fraud. now, gentlemen, if this were not a case of misdemeanor, but a case in which the life of the party were to answer for the crime he had committed, i ask, whether many--many--many guilty men have not forfeited their lives upon infinitely less evidence than i have given as to the person of mr. de berenger? then if mr. de berenger was colonel du bourg, what becomes of the question of hand-writing? the hand-writing of de berenger to du bourg's letter, was spoken to by mr. lavie, who had made particular observation on his hand-writing, having seen him write at the messenger's. my learned friend, mr. park, says he should not know the hand-writing from an hour's observation; perhaps not; but this was more than an hour's observation; it was observation repeated more than once, and it was observation for the very purpose. the fact confirms the judgment of mr. lavie. i ask, who sent the letter to admiral foley? the answer is, mr. de berenger; whose hand writing is it? can you have any doubt that it is the hand-writing of the person who sent it? on this point, witnesses are called by de berenger (one of them a most respectable witness, undoubtedly) to prove that this does not resemble his ordinary hand-writing. no, gentlemen, certainly not; he would not write in his usual hand. lord yarmouth says, the character is more angular than his usual hand. that would be the case, where a man is writing a feigned hand; but still that occurs here, which almost always does occur, a person so writing is very likely to betray himself just as he gets to the end, and when he comes to sign his name, the initials shall be so striking, as at once to excite the observation of such a man as lord yarmouth, and his lordship says, this r in the signature of r. du bourg certainly does very much resemble the r in the usual signature in c. r. de berenger; but, taking the evidence of identity and that together, it is clear, that he was the person at dover; that he was the person, therefore, who sent the letter to admiral foley; and the evidence of mr. lavie is therefore so strongly confirmed, as far to outweigh all the evidence you have had on the other side respecting his hand-writing. then, gentlemen, we come a little further; my learned friends last night addressed you at great length, and with great earnestness, upon lord cochrane's affidavit, and they requested you would not suppose lord cochrane was capable of making a false affidavit. gentlemen, that lord cochrane would have been incapable of deliberately engaging in any thing so wicked some time ago, i am sure i as earnestly hope as i am desirous to believe; but you must see in what circumstances men are placed, when they do these things; lord cochrane had first found his way to the stock exchange, he had dealt largely in these speculations, which my learned friends have so liberally branded with the appellation of _infamous_; he had involved himself so deeply, that there was no way, but by this fraud of getting out of them; he had then got out of them in this way, and then he found, as guilty people always do, that he was involved still deeper; he found the great agent of the plot traced into his house, and traced into his house in the dress in which he had perpetrated the fraud; he was called upon for an explanation upon the subject. gentlemen, he was gone to perdition, if he did not do something to extricate himself from his difficulty; then it was that he ventured upon the rash step of making this affidavit, and swearing to the extraordinary circumstances upon which, as i commented so much at length in the morning of yesterday, i will not trespass upon your attention by making comments now. my learned friends were properly anxious not to leave lord cochrane's affidavit to stand unsupported; they were desirous of giving it some confirmation, and they exhausted two or three precious hours this morning in calling witnesses to confirm it; but those witnesses were called to confirm the only part of the affidavit which wanted no confirmation; they were called to give lord cochrane confirmation about applications to the admiralty, and applications to the war office, and applications to the colonial office, by sir alexander cochrane for de berenger; and after they had called witness after witness to give this confirmation upon this insignificant and trifling point, they leave him without confirmation upon that important, that vital part of this case to my lord cochrane, _videlicet_: the dress which mr. de berenger wore at the time he came to that house, and had with him that interview. lord cochrane puts him on a grey military great coat, a _green_ uniform, and a fur cap. i have proved, that the uniform he wore was _red_. my learned friend, mr. serjeant best, felt the strength of the evidence for the prosecution upon that, and he endeavoured to answer it by a very strange observation. "why," says he, "consider, lord cochrane had been accustomed to see mr. de berenger in _green_; he did not make his affidavit till nearly three weeks afterwards; and how very easily he might confound the _green_, in which he ordinarily saw him, with the _red_, in which he saw him on that day, and on that day only." now, if i wanted to shew how it was impossible for a man to make a mistake, as to the colour of the coat in which he had seen another, i should select the instance in which he had seen that other in a peculiar dress but for once. but, gentlemen, my learned friend had to account for more than the red coat. it is not a plain red coat, it is a scarlet military uniform, the uniform of an aid-de-camp; and on the breast, there is that star which you have seen; and suspended from his neck, there is the medallion. lord cochrane is a man of rank, not unacquainted with the distinction of a star. if he was not in the secret of de berenger's dress, he must have had curiosity upon the subject; and i beg to ask, what is to be said for lord cochrane seeing de berenger in that scarlet uniform, with that star on his breast, and that medallion suspended from his neck, swearing that the uniform was _green_, and that he lent de berenger a black coat, because he could not wait on lord yarmouth in that _green_ uniform, which you will recollect was the uniform of lord yarmouth's corps, in which, lord yarmouth has told you, it would have been more military to have waited upon him, than in any other dress. gentlemen, there is more than this. my friends call one of lord cochrane's servants, who received de berenger when he came there, who told him in the hearing of the hackney coachman, that his master was gone to breakfast in cumberland-street, who took the note which de berenger wrote to cumberland-street, who brought back the note, and upon that note mr. de berenger wrote two or three lines more. then what becomes of lord cochrane's affidavit, who says the signature was so near the bottom of the paper, that he could not read it. the postscript is written after the signature, yet lord cochrane cannot read the note, because the signature is written so near the bottom; and then when my learned friends had that servant in the box, they did not venture to ask that servant what was the dress of mr. de berenger. after calling witnesses to confirm lord cochrane, as to applications to different offices by sir alexander cochrane, they dare not ask lord cochrane's own servant as to the dress de berenger wore, to try whether he could confirm lord cochrane's affidavit upon that subject. they then tell us, that another servant is gone abroad with some admiral, and i pray you, as he was here long after this business was afloat, how was it he was suffered to go, unless his absence was more wanted than his presence; but they have a maid-servant who also saw him, and she is not called; and my learned friends, though they were so anxious to confirm lord cochrane's affidavit, leave him without confirmation, utterly abandoned and hopeless. _mr. brougham._ davis had left. _mr. gurney._ i say why was he suffered to go away. the maid-servant is still here, and she is not called. gentlemen, i say so much for the affidavit of lord cochrane, which is a vital part of this subject, and upon which, i observe with great regret; but if i forbore the observations, i should desert the duty which i owe the public. gentlemen, there is indeed but little more for me to trouble you with, i think; but there was an observation made by my learned friend, which is very important; they cross-examined mr. wright, whom i put up to prove the affidavit, by asking him, whether lord cochrane did not at the time he put that affidavit into his hands, observe, that now he had furnished the stock exchange committee with the name of mr. de berenger, if he was the person who practised this fraud. gentlemen, mr. serjeant best laboured this point with you in the course of his address to you, and labored it with great ability; but my learned friend did not advert to one circumstance respecting that affidavit, which disposes of all his observations in an instant. _when_ did lord cochrane furnish the name of de berenger to the committee of the stock exchange? _on the th of march_; mr. de berenger having quitted london on the th of february, twelve days before; and when my lord cochrane had no more doubt that he was out of the country, than that he was himself in existence; he was gone to the north, not gone to the south, to portsmouth, to go on board the tonnant; he had been gone twelve days, twice as long as was necessary to find his way to amsterdam; it was believed he was safe there, and when it was thought he was quite safe, lord cochrane was extremely ready to furnish the stock exchange committee with the name of the party, and so to get credit for his candour. "what can a man do more? i have given you the name of the party, only find him, and you will see whether he is du bourg, or not;" he did not expect that he would be found; he was, however, found, and the intentions of these parties were frustrated. i come now, gentlemen, to another part of the case, which would have excited my astonishment, if it had not been for the management and machinery that i had seen in this case; still i could hardly have expected to have met with that which we have had to-day in evidence, i mean the mode which has been resorted to, of accounting for the bank notes which were found in the letter-case of de berenger, and those that were paid away by him. gentlemen, the defendants knew this part of our case; in truth, there is no surprize upon them in any part, they knew it all. you have it in evidence, that they have inspected the notes in the letter-case; they knew the use that we were to make of them, and then we have that notable expedient, the fruit of mr. cochrane johnstone's fertile brain, the mode of accounting for all these bank notes, by this extraordinary transaction of the drawings of a design for improving an acre of ground behind mr. cochrane johnstone's house in alsop's buildings. now, gentlemen, only have the goodness to look at it. the work was done, it is said, last september; £. was then paid on account, respecting which you might, from mr. de berenger's letter, have supposed that no voucher had been given, for it is mentioned carelessly in the postscript, "a-propos, you have paid me £. on account." on the contrary, you find that mr. cochrane johnstone took a stamped receipt at the time; then we have the architect called, as in an action on a quantum meruit; and architects have most magnificent ideas of plans and money, and he tells you, that two or three hundred pounds would not have been too much for such a design as that. gentlemen, i think we are all as well qualified to decide upon that, as an architect; you will, if you think proper, look at it, and form your own judgment. but how comes it that we have these strange accounts from mr. tahourdin, his verbal testimony contradicting his client's letter. mr. tahourdin says, "i did delicately, but i did by mr. berenger's desire, again and again hint to mr. cochrane johnstone the subject of payment, to which i must do him the justice to say he was never averse. i had done this some time before february, but no money had come;" and then, as soon as these words were out of his mouth, he puts in mr. de berenger's letter to mr. cochrane johnstone, who says, "you (mr. cochrane johnstone) have been pressing me to take money, and now i will take it." oh, gentlemen, when does this fit of money-paying and money-taking seize these two persons? _on the d of february!_ the day speaks volumes. added to all the extraordinary coincidences, which the defendants wish you to believe were accidental, we now have the acknowledged payment of money by mr. cochrane johnstone to mr. de berenger on the day after mr. de berenger had so rendered mr. cochrane johnstone, lord cochrane, and mr. butt, the important service of raising the funds by the imposition that he had practised, of which they had so promptly and profitably availed themselves. then, gentlemen, we have the extraordinary evidence of mr. tahourdin, the attorney for mr. cochrane johnstone and for de berenger, from which it appears that they were all getting up the defence to the indictment by anticipation. mr. tahourdin is to give a contemporaneous existence to the transaction by the production of these letters and instruments, the receipt for two hundred pounds, and the promissory note for two hundred pounds more. from all this it is plain, that mr. cochrane johnstone, at the very moment when he was settling with his agent his reward for the fraud he had committed, like a man of great foresight, looked forward to the possible consequence of the trial of this day, and he provided for it, as he thought, sufficiently:--"it may be thought, mr. de berenger, that this money which i am now giving you is for the business of yesterday, let us take care to prevent it; you write to me, i will write to tahourdin; it is not absolutely necessary (perhaps, he added) to trust him with the secret, he will be an admirable witness hereafter; i will put into his hands the promissory note and the receipt, he will give them contemporaneous date, and then i shall be able to account for my giving you, on this th of february, four hundred pounds." persons who devise these contrivances, gentlemen, have not, as i observed to you yesterday, the skill to provide for all circumstances, and now and then the very things which they do to effect concealment, shall lead to detection.--now mark:--mr. cochrane johnstone is to pay and to lend to mr. de berenger four hundred pounds. as he was to give him four hundred pounds, why did he, or mr. butt (for they are one and the same) take so much trouble, and go through so much circuity in shifting and changing the bank notes? you observe, that the bank note for £. is sent to the bankers, and exchanged for two notes of £. each; and then the same agent is sent to the bank of england to get two hundred notes of £. each; and that about the same time another agent is sent to the bank, to exchange the two other notes for £. each for two hundred more notes of £. each. why, for the purpose of this payment and this loan, do they go through this operation of changing and changing again, to procure a vast number of notes for mr. de berenger, to enable him to take this long journey to the north? why, gentlemen, it is because one pound notes are not traced so easily as notes for one hundred pounds; people take these small notes without writing upon them, but they do write upon such large notes as £. and £. , and that they knew might afford means of immediate detection, but the device, when detected, makes the fact still stronger, and you have in proof, that sixty-seven of one hundred, and forty-nine of another hundred, were found at leith in de berenger's writing-desk. this affords a strong presumption, that he had the whole four hundred, besides which i have traced to him; a forty-pound note which he changed at sunderland, and a fifty-pound note which he gave to his servant, smith; and these, too, have been traced up to mr. butt. when all these turnings and windings are thus discovered, what measure of your understandings, gentlemen, must these defendants have taken, to imagine that you could be imposed upon by such flimsy materials as these manufactured papers? the device is gross, palpable, and monstrous. what does all this prove?--nothing _for_ the defendants; but then it proves a great deal _against_ them. recollect too, gentlemen, that this £. , which is shewn to come out of the hands of mr. cochrane johnstone and mr. butt, after the th of february, is also shewn to have come originally out of the hands of lord cochrane himself on a prior day; and therefore you have the money coming out of the hands of all the three; the reward of the agent coming out of the hands of the persons who had been benefited by the fraudulent services of that agent. gentlemen, it is difficult to abstain from many more observations on this defence; but the case is too clear to require them, and i will no longer trespass upon your patience. it appears to me absolutely impossible to doubt respecting the guilt of the several defendants. de berenger is du bourg. when de berenger is du bourg, the rest all follows; he was the agent of others, unquestionably; he was not himself the principal. you have had a mass of perjury exhibited to-day to extricate him, and consequently his employers. that, like all falsehoods, when detected, only serves to make conviction more clear and more certain. with these observations i sit down, feeling most grateful for the patient attention i have received, both from his lordship and from you, and perfectly sure that you will do justice to the public. summing up. lord ellenborough. gentlemen of the jury, you are now come to that period of the case in which your most important duty is to be discharged, as it respects the individuals who are the object of this indictment, and the public, whose interests are to be protected by the justice you are called upon to administer. this is an indictment for an offence of great malignity and mischief; it is for the offence of conspiracy, which is charged to have been committed by the eight persons whose names are upon this indictment; and it is for you to consider upon the statement of the evidence i shall make to you, how far that offence is brought home to all or any of these defendants. the offence of conspiracy, gentlemen, is an offence consisting in a wicked concert, contrivance, and combination of individuals, to effect some public or private injury or mischief; that contrivance and that combination is not to be collected, nor is it practicable, in the course of human affairs, to collect it from the mouths of the parties assembled for the purpose of communication, but from the actings and conduct of the several parties as they may appear generally, to conspire and conduce to the same wicked end and purpose; and if it appears to you, from the actings and conduct of these parties, that they entertained the same common purpose of mischief, and that they have by their several actings combined and co-operated to the effecting that same wicked purpose, that is sufficient to bring home the imputation of the crime charged against the parties; therefore the prosecutor need not shew that they have met in common council, or even that they have seen one another before, if their acting shews they were influenced by one common purpose of mischief, and aimed at the production of the same malignant end and effect. suppose persons jointly charged in an indictment with the breaking of an house, are found on different sides of the same house, besetting and endeavouring to enter it at the same time; you need not shew that they had actually met, and previously contrived the plan of this joint robbery; the unity of their conduct proves their joint contrivance and concert to accomplish the same end; though, indeed, this is a case where personal presence at the acts done, renders all intendment of the personal concert of the actors unnecessary. the same rules which apply to the offence of conspiracy as a misdemeanor, apply equally to all crimes committed by concert up to the crime of high treason, which is often established by evidence of the distinct actings of separate parties breathing the same purpose, and immediately conducing to the same end. the question, therefore, for you to consider upon the evidence (which i am sorry it will be necessary for me to state to you at a greater length, than, with regard to your ease and convenience, i could have wished) will be, whether the case is not brought home by satisfactory evidence to a great number, if not to all the defendants. the crime charged upon this indictment, in eight different charges or counts, is that of conspiring to raise the price of the public funds; in some of them it is charged to be with a view to corrupt gain upon the part of these persons or some of them, or at least to the _prejudice_ of other _individuals_; for that is enough to constitute the offence, even if the individuals engaged in this conspiracy had not (as it is imputed to them that they had) any corrupt motive of personal advantage to all or any of themselves to answer; if the criminal artifice operated, or was in all probability likely to operate to the prejudice of the public, and was clearly so intended, we need not go further; when we know that a great amount in the funds is at certain periods bought for the public or large classes of individuals; and you find by the testimony of mr. steers, that on this very day the sum of £. , . . . was bought for the accountant general, which would have been bought for less; and every person for whose use the accountant general purchased, having to acquire by means of such purchase shares in the public securities, would of course have so much the less stock for his money, on account of this fraud, and would consequently receive a great pecuniary injury thereby; and no doubt, multitudes of persons besides those immediately alluded to, and whose cases are not brought individually under your view, must have been affected by it; for the dealings in the funds are, we know, every day carried on to a vast amount, and every person dealing on that particular day, as a purchaser, was prejudiced by the practices by which a false elevation of the funds was on that day occasioned. of the counts, one or two, i think, are not counts on which, properly, your verdict can be founded, because they state, that every one of these defendants knew that a gain was to be acquired by mr. cochrane johnstone, lord cochrane, and mr. butt; and it does not appear, with sufficient certainty, that they knew the relation in which these three persons stood to the funds, or their interest and speculations therein; i mean, that such persons as m'rae, holloway, and so on, might not know the precise situation in which the three stood; but if they all co-operated to the same end, and the northfleet imposition, as i may call it, was intended to be auxiliary to the imposition intended to be effected by the way of dover, and the parties knew that they were acting in the same fraud, and were respectively conscious instruments in producing the same effect, they are all guilty of the same conspiracy; and it has been admitted, by a learned counsel for some of the defendants, that his clients, holloway, lyte, and sandom, have been concerned in a conspiracy; but, he says, that the conspiracy in which they were concerned, was another and a different conspiracy, from the one in which the three first-mentioned of the defendants were engaged; and that you cannot unite the two conspiracies together, and convict them all as guilty of one entire individual conspiracy; and it will be one material point for your consideration, whether, under the circumstances which have appeared in evidence, it is made out to your satisfaction, that they were all conspiring to effectuate the same purpose, pursuing similar, and with almost a servile imitation and resemblance, the same means, at the same time, in the accomplishment of the same end. now how has it been done? in both instances, by the adoption of disguises. of what nature are the disguises? in both instances, military disguises; one, indeed, has gold lace round the cape, and the other has embroidery. sarah alexander says, those procured by m'rae, were officers coats, with flowers of worsted, and that the hats were embroidered, the one having a brass plate, and a gold tassel, instead of the sort of ornaments that the superior actor in this conspiracy (if such you shall be of opinion he was) had. one was decorated with a star, and that silver ornament that you have seen; the other was in rather a plainer dress; but there was in each case the assumption of the character of officers; and the communication of false intelligence respecting the good news which was to accelerate peace, was common to both parts of the scheme. you will consider, upon the whole of the evidence, whether there is not a link or connection, between the upper and under plot, through the means of m'rae, and perhaps of mr. cochrane johnstone, and, whether the two conspiracies are not united through the means of that person, m'rae; his conduct itself is extraordinary; by a most remarkable offer, on the part of mr. cochrane johnstone, it is proposed that there should be the sum of £. , given to this man; a man in a low and ordinary and desperate situation; and it is stated, that lord cochrane, mr. cochrane johnstone, and mr. butt, would give £. , among them. why should they give that? if, indeed, they could thereby mislead and draw away the public attention, and divert it to the pursuit and hunting down of m'rae, as the sole artificer and perpetrator of the fraud, and could thereby turn aside observation and suspicion from themselves (supposing them to be properly charged with this offence), £. , would be well paid, and cheaply employed for such a purpose. it is for you to say, whether these letters which have been read to you, do not appear pregnant of this contrivance and device on the part of the writer. the first question, gentlemen, will be, was the defendant, de berenger, the man who was found at dover, about one o'clock on the morning of monday the st of february, and who proceeded through the several stages to london, and ultimately to the mansion of lord cochrane himself, and was there received with that dress, whatever it was, that he wore; but the dress he wore, is proved by so many witnesses, that i will not fatigue you with stating it now, because i must, by and by, state the whole of the evidence to you. a great deal of observation has been made about the character of hand-writing, of what i call the dover letter--the letter sent to admiral foley; the object of sending it to him cannot be doubtful, for it was intended that the port admiral should (as he would if he had believed the report) communicate that intelligence to government, and which, if the day had been tolerably clear, might by telegraph have reached this town in much less than half an hour, i believe in a quarter of an hour; and having been sent off at this very early hour to admiral foley, who was called out of bed to receive it, it would have been in town early, and the stocks would have been up at the very moment, when under the peremptory order before given, £. , would have been sold, as well as every other part of the stock, standing in the names of the defendants. gentlemen, there has been great stress laid upon this letter, and whether it be or be not the hand-writing of de berenger, i will not (for it is not my province) draw the conclusion which might be drawn from looking at that letter; it appears to me evidently an artificial, upright, stiff hand, as contrasted with the ordinary natural character of hand-writing of that gentleman. it is sometimes useful to look where the same words occur in different parts of the same letter; and when you come to look at the words, "i have the honour to be," in one part of the letter, and the words "have pledged my honour," &c. in the other; they present in the first instance, a more angular formation of letters than i have generally seen, and with reference to the idea thrown out of this being written in great haste, it is not impossible that this gentleman having meditated the whole contrivance before-hand, should have brought this letter down with him, ready written and directed from town, and that he had called for pen and ink merely to go through the appearance of writing a letter, and which he might fold up as if for the purpose of being sent; but that he might hand over to wright, of dover, the letter he had brought with him, not trusting to the hurry of the moment for the proper formation of one. i do not say that such is the fact; but it is clear that the letter produced, is the one he actually sent; for he says afterwards to the witness, shilling, that he had sent a letter to admiral foley, in order to apprize him that the telegraph might work; the dover express-boy proves that he carried the letter given to him, to admiral foley, and what letter can that be, if it is not this, which is proved to have been delivered to admiral foley? this letter was calculated to impress the admiral with the belief, that the allies had obtained a decisive victory, that bonaparte was killed, that the allies were in paris, and that peace was likely to take place immediately. after the calamity of the long war we have had, ending as indeed it has ended, in the fulness of glory; we all feel that we have had an abundant measure of glory, though painfully earned; every body recollects the sort of electric effect produced upon this town the moment the news now under consideration arrived; the funds were raised preternaturally; one cannot indeed on looking back, account for it, how the omnium should have been up to twenty-eight at that time; there was a considerable elevation beyond that price during the course of that day; it rose to thirty and a fraction. gentlemen, the prosecutors allege that the defendant, de berenger, having forwarded this letter, pursued his course, coming to town in the manner stated, and that he ultimately came to lord cochrane's house, upon which i shall hereafter comment. you will not, i think, have any doubt that de berenger was the man who appeared under the name of du bourg; but in order to obviate or remove that impression from your minds, the learned counsel for the defendant, de berenger, did adventure or rather was forced upon an attempt, which i own it seemed to me to require the utmost firmness to attempt to execute; for there never was evidence given since i have been present in a court of justice, which carried to my mind such entire conviction of the truth and authenticity of that part of the story; you were yourselves witnesses to the manner in which the witnesses, who spoke to the person of de berenger, were put upon the investigation; they were told to look round the court, and they accordingly threw their eyes about the court in every direction, before they found the person whom they said they had so taken notice of; you saw them look behind them, look down, and on every side of them, and then suddenly, as if they were struck by a sort of electricity, conviction flashed upon their minds the instant their eyes glanced upon him; this occurred in every instance i think but one, where the witness not having his eyes conducted that way, did not discover him. the learned counsel having such abundance of proof on this head, did not resort to a means usually adopted on occasions of this sort, and to which it is perfectly allowable to resort, namely, that of shewing the person to the witness, and asking him whether such person was the man; when a man stands for his life at the bar of the old bailey, the witness is frequently bid to look at the prisoner at the bar, and to say whether he remembers him, and whether he is the person, or one of the persons (as the case may be) who robbed him; and he pronounces whether according to his recollection, he is the person or not. so multiplied a quantity of testimony, so clear, and so consistent, was, i think hardly ever presented in the course of any criminal trial; differing in no circumstance respecting his person and dress, excepting in some trifles, which amidst the general accordance of all material circumstances, rather confirmed by this minute diversity, than weakened, the general credit of the whole, and gave it the advantage which belongs to an artless and unartificial tale. some saying his cap was a little flat, as it might be owing to its being drawn over his face; one saying that it was brown; another i think, that it was of a fawn colour; and one who spoke with the utmost certainty in other particulars, that it was nearly the colour of his pepper and salt great coat; but in all the other substantial particulars, they concur in their accounts most exactly; and these minute variances exclude the idea of any uniform contrivance and design in the variation; for where it is an artificial and prepared story, the parties agree in the minutest facts, as well as the most important; and indeed, gentlemen, so abundant, so uniform, and so powerful is the evidence as to one point, viz. the identity of berenger, that it strikes me, that if these witnesses are not to be fully believed as to this point, then almost every man who has been convicted at the old bailey upon so much weaker proof of his being the person who committed the particular crime with which he is charged, (and which has been the case in almost _every instance_ i have known), may be considered as victims unjustly sacrificed in a course of trial, to the rash credulity of their judges and juries. if the evidence produced is not sufficient to establish this point, i am at a loss to say by what description and quantity of testimony, such a point can be satisfactorily made out in a course of trial. when the learned counsel addressed himself to prove an alibi, i could not foresee how it would be satisfactorily accomplished; i cannot say i believed he would accomplish it, but i believed it would be attempted by better evidence than that which has been adduced; you recollect the prior testimony of the davidsons; the servants had gone out at two, instead of four; mr. de berenger, according to the evidence he has adduced, is found three miles and a half off; where he had dined, is not shewn, he is in a hurry to get back; according to the next set of alibi witnesses, he is found at mr. donithorne's between eight and nine, having been found there in the morning, to measure the garden, at not a very convenient time, with the snow upon the ground; and who are the people who speak to this? a man who has been in the habit, which some of us are, of examining the countenances and demeanor of men brought forward to speak to guilty untruths, becomes in a degree familiar with the modes of behaviour which such persons adopt. from something in the manner of one of the witnesses, which suggested to me that such a question might not be improperly addressed to him, i asked him, whether he had not been used to be bail? (thinking that he might possibly be one of those hired bail, who are the disgrace of our courts of justice). what does he answer? why, he had been bail once, and then he had been bail another time, and the amount he did not know; and i think he said he did not know whether he had not been bail oftener; a man who is in the habit of being bail, must swear to the amount, and he must swear he is an housekeeper; and this man had no house over his head of his own, but was living in the house of another; i thought, too, the man might have failed, and been obliged to quit his house on that account; and it so appears, that he was undone in his circumstances, and that he was a man occasionally presenting himself to swear to his possession of property, warranting his becoming bail for others. then what becomes of donithorne; he is an inferior cabinet-maker, employed by mr. cochrane johnstone, and has brought a great number of penal actions for him; at every turn of the case, he doubles in upon us, and you will presently have to say, whether he and others, and which others, are not affected by this case. gentlemen, the evidence begins with that of john marsh, who keeps the packet-boat public house at dover, he says, "upon that st of february, i heard a knocking at mr. wright's fore door of the ship inn, between one and a quarter after one o'clock; i went out upon hearing that, and, on going out, i found a gentleman there, who had on a grey great coat, and an uniform coat under it. i called for a person at my house to bring two lights across; when i had the two lights, the gentleman had got into the passage; he had a star on his red coat, under the great coat; it is similar to this star." now, it is said these persons saw him in the dark, but candles were brought over, and you may see a man's countenance by the light of two candles placed near him, almost as well as you could in the day-light we have at present; it would certainly be sufficient for the purposes of observation; if it were not so, half at least of the injuries done at night would be very imperfectly proved, if proved at all. he says, "i do not recollect that he had any other ornament; he was very anxious for a post-chaise and four; the porter at the ship came down to him; he wanted an express horse, and a man to send to the admiral at deal;" then it is highly probable, as he wanted an express horse, that he did send this letter by that express; the witnesses swear they saw him writing a letter. "i asked him where he came from, and he told me, he was the bearer of the most important dispatches that had been brought to this country for twenty years; i asked him where he came from? he told me, from france. i asked him, where he landed? he told me, on the beach; and he begged of me to get a post-chaise and four for him; and then i went and called mr. wright, of the ship inn; then he wanted pen, ink, and paper. i had shewn him into a room; as soon as mr. wright came down stairs, mr. wright gave me a sheet of paper, and pens and ink, which i carried into the room; i gave it to him, and he began to write upon it; he called for a bottle of madeira, and something to eat." that circumstance of his having wine, is afterwards confirmed, for when he is going up shooter's hill, he is giving it away to some of the postillions. "i asked him, whether i should call the collector of the port? telling him, that it was his business to see such people when they landed; he made answer to me, that his business did not lie with the collectors; then mr. wright came, and i had no more conversation with him; two candles were placed, one on each side of him, and i could see him; _that is the gentleman_; (pointing him out.) a gentleman of the name of gourley was there, and another of the name of edis, was also there." then he says, "i went to get horses with all possible dispatch; he told the two postillions he would give them a napoleon each;" and that description of coin attends him throughout, nor does it quit him to the last, for in the very desk when he is taken up in scotland, there were found napoleons tallying with these; therefore the proof in this particular is dovetailed and closed in, beyond any thing i almost ever saw in a court of justice. then he says, "he had a german cap on, and gold fringe, as i thought;" and it turns out, upon an exhibit we had made to us of a similar cap, that de berenger had such a cap; those that are shewn, were made in the resemblance of what, from the evidence, they collected the articles to be. they are not the originals; the coat, it appears, was cut to pieces, and got out of the thames, but the actual cap is not produced; "this is all that i heard and saw." upon his cross examination, he says, "i am not in the least connected with the ship inn, but on hearing this knocking, i went across to see who the gentleman was out of mere curiosity; i did not observe whether it was moon-light, foggy, or star-light." it does not signify which it was, for he saw him by candle-light. "the boots let him in; i was with him about five minutes altogether, but i cannot speak to a minute; he was in great haste to get away; i should think he was not more than twenty minutes at mr. wright's altogether. i held the candle while the boots unlocked the parlour door, and i went and put them on the table; he wished me to quit the room, and i did not go in any more." then he is asked about a large company in the inn, he says, "i do not know that there had been any; i never saw him before nor yet since, till to-day, but i can take upon me confidently to swear, _that this is the man_." he made a very strong observation upon him, and he pointed him out in the manner you saw. "i never was examined upon this subject before, only by mr. stow, the collector." on his re-examination, he says, "he told me before i sent for the lights what his business was, and that he had landed on the beach. i was in the passage with him till the lights came; my attention was called to him as a stranger of importance. i saw the person when i was by myself in the hall, and knew him the instant i saw him; i have not the least doubt that he is the same man." one of the other persons who saw him, of the name of gourley, a hatter at dover, speaks to the same thing--"i was at mr. marsh's, the packet-boat, on the morning of the st of february; mr. marsh went over and called for lights; i took two candles and went across with them to the ship, where i perceived a gentleman in a pepper and salt coloured coat, similar to that which is shewn to me. mr. marsh asked me to go and call the ostler up, and to tell him to get a post-chaise and four immediately. i did so; and after some time, when i had got the ostler up, i returned back again and found the stranger in the parlour; there were lights in the room; there were two candles upon the table; the gentleman was walking about in a red uniform trimmed with gold lace, with a star upon his breast, and he had a cap on similar to that, with gold lace on it. i asked him, what news; having heard them say he was a messenger. he said messengers were sworn to secrecy, but that he had got glorious news; the best that ever was known for this country. he rang the bell and called for pen, ink and paper, to write a letter, to send off to the admiral at deal." so that he professes, as the first witness says, to write a letter; and here he speaks of sending it off to the admiral at deal:--"that was brought to him, and he continued writing some little time while i was there. i took leave of him before he had finished the letter; the candles were sufficiently near him to observe him; that is the gentleman, and i have not the least doubt that it is him." on his cross examination, he says, "i came over when i was called by mr. marsh to bring candles; i went and called the ostler, and waited till i waked the ostler; i left the candles in the passage; i saw him write on the paper when it was brought; i was sitting with mr. marsh when he arrived; i had not dined at the packet-boat." i suppose the question pointed to whether this man was likely to have been sober or drunk at that time: i do not know that there is any thing extraordinary in a man's sitting up till twelve or one o'clock; but that has been the subject of the observation. upon his re-examination, he says, "perhaps i might be in the room, so as to have an opportunity of observing him three or four minutes; my attention was called to him particularly; he had a cap on sometimes, and sometimes not; _i have no doubt that is the man._" eliot edis, a person who you recollect was rather deaf, says, "i am a cooper in the victualling yard at dover, i was at the packet boat on the morning of the st of february, gourley was there with me; my attention was called to a messenger who had arrived. i saw the messenger first at the ship, he was in a room at the time, walking up and down the room. i observed his dress; he had a grey great coat and regimentals, scarlet trimmed with gold; i did not particularly notice any other ornament; he had a cap with a gold band, that was the colour of the coat, it was a slouched cap;" upon that there has been much observation; "the cap appeared to be made of a kind of rough beaver, i do not know whether it was black or brown;" by that light you would not know very distinctly whether it was black or brown; "it was rather flat all round, and had no rim like a hat. i saw him sit down and write. i did not hear him say whom he was writing to. i could hear him talk; but not to understand him, being rather deaf; his cap was on while i was there." he is desired to look round, and to point out the gentleman, and he says, "that is the gentleman," pointing to him. "i have no doubt that is he; i had never seen him before that night, nor since;" and yet as you saw him, looking round, he instantly found him out among so many as there were then round him, it is not probable that if they had not seen him before, and had not his picture engraved upon their minds, they would have known him again so well; and it would be very remarkable that they should all pitch upon the same person. "i might see him perhaps for five or six minutes; the cap was rather slouched; it had no brim to it; it was drawn over his forehead; the round part of it was drawn over his forehead. i was not in court when marsh was examined." it was suggested that he might have picked up his story from marsh; but a man who was deaf could not have heard him, if he had been in court. mr. william st. john is next called; he speaks in the same manner; it is unnecessary to go through the whole of it. he says, "he wore a scarlet coat with long skirts, buttoned across, with a red silk sash, grey pantaloons, and a grey military great coat, and i think it was a seal-skin cap;" now with that light he might very easily mistake; i believe it is very common to have seal-skin caps for travelling. _mr. gurney._ this is seal-skin, my lord. _lord ellenborough._ i did not know that; "he had, i think, a seal-skin cap on his head, of a fawn colour," and it is a fawn colour, certainly; "there were some ornaments on his uniform, but i do not know what they were, something of a star on his military dress; he was talking up and down the room in a very good pace; i asked him, whether he knew anything of the coming of one johnson," a messenger whom the witness expected; "he said he knew nothing at all about him, and begged i would leave him to himself, as he was extremely ill;" this gentleman appears too inquisitive, and he did not seem to like him. "on my leaving the room, he requested that they would send in paper, and pen and ink; i immediately retired, and met the landlord, mr. wright, coming into the room, i believe, with the paper, pens and ink; in a few seconds afterwards i returned into the room, and he was writing, i did not hear him say any thing about the paper he was writing. i left the room immediately. i saw him again at the door in the street. when he was stepping into the carriage, i asked him what the news was; he told me it was as good as i could possibly wish; i did not see what he did with the paper he was writing upon, nor did i hear him say what he was writing about, he went away the first of us." now this man has been made a good deal the subject of comment; for it appears that he had gone down to dover, and was, in some respect, waiting for news; there was a kind of reluctance in him to acknowledge that, in respect of which there need not have been any, for there is nothing whatever objectionable in his sending up paragraphs for the traveller newspaper. i believe the publishers of these papers mostly have some persons stationed at the out-ports, to obtain intelligence of important events, and particularly so critical and anxious a moment as that was they would naturally have such persons at the port of dover; there was nothing he should not avow; and if it was with the view to purchase in the funds, in consequence of the intelligence he should receive; if a man purchases funds upon public intelligence fairly and honestly come by, when every body has an equal opportunity of acquiring it and the intelligence is genuine, it is like buying any other article in the market, upon fair knowledge of the circumstances connected with its value; it is as allowable to deal in that article as in any other, upon equal terms; but the objection here is to a dealing which resembles the playing with loaded dice; if one plays with secret means of advantage over another, it is not fair-playing--it is a cheat: i own i have been much shocked with this sort of fraudulent practice, called three times over, in the letter of cochrane johnstone, _a hoax_; i cannot apply a term which imports a joke to that, which if the defendants are guilty of, is a gross fraud upon public and private property; and unless every species of depredation and robbery is to be regarded as a species of pleasantry, i think the name of hoax, which has been given to it, is very ill applied to a transaction of so dishonest and base a description. then mr. st. john says, "i went to dover, by desire of a friend of mine; his name is farrell; he is a merchant in the city, and is a proprietor of the traveller." then being asked, where that gentleman lived, he says, "in austin friars: i was to communicate to mr. farrell or to mr. quin." then he says, "certainly the arrival of news at such a time would have an effect upon the funds." then william ions, the express-boy, being shewn to the last witness, st. john, he says, "this is the boy whom i saw sent with one of the two expresses that was sent that night; this lad went with the express to the port-admiral at deal, i believe; it was the express that mr. wright gave him from the gentleman who was there; _from that gentleman_." william ions says, "in february last i was in the service of mr. wright, of dover; i was called up when the officer arrived there, and was sent with an express to admiral foley; i took the letter i received to admiral foley; mr. wright gave me the letter whilst i was upon my pony; he came out to the door with it; and that letter which i received, i delivered to the admiral's servant at deal. she took it up stairs to the admiral, and i saw the admiral before i left deal, after the letter was delivered to the servant, who took it up stairs." therefore, whatever he received at dover he delivered to the admiral, and what the admiral received we have here; there is an interruption in the proof certainly, in consequence of wright, of dover, not being well enough to be here as a witness; and therefore it did not appear by his testimony, that that which he, wright, had received, wright had delivered to his express-boy, to go over to deal with; but that is supplied by the circumstance of de berenger, if he was the person, telling shilling, the dartford driver, that he had sent off such an express; therefore it must be presumed that he had sent that letter which contained an express to the admiral; and that which the admiral received he shews you. to supply that defect in the evidence, mr. lavie was called to say, that he believed it to be de berenger's hand-writing; and though this does not appear to be the ordinary undisguised hand of this defendant, yet after lord yarmouth, who had given his evidence that he did not consider it his hand-writing, referred to the letter _r_, the initial letter of random de berenger's christian name, he considered _that_ as resembling his hand-writing, and you would observe, whether there was not such a resemblance as lord yarmouth mentions, if it were at all material; but it ceases entirely to be material, when he tells shilling, as he does, that he had actually sent such a letter to the admiral. admiral foley is next called; he says, "the letter was brought to me, that that boy brought to the house; i was a-bed; i read the letter in bed; i did not mark it; i enclosed it in a letter to mr. croker, the secretary to the admiralty; that is the letter; i sent it enclosed in this letter to mr. croker; i arose immediately, and sent for the boy into my dressing-room; i questioned the boy a good deal; i did not telegraph the admiralty, because the weather was too thick; when i sent for the boy up, i had the letter in my hand; it was then three o'clock, and dark; the telegraph would not work; i had a candle, of course; i am not certain i should have telegraphed the admiralty," and if he had seen reason to doubt, he would have acted very properly in abstaining from so doing; he could not communicate all that would excite the doubts he might himself entertain; he could only send a few words, indicating the most important particulars of the story which the letter contained, and therefore he might very properly hesitate about communicating any part, if he thought the whole contained doubtful, still more if untrue intelligence. the evidence of mr. lavie is only that he believed this to be de berenger's hand-writing; that he had seen him several times in the custody of the messenger in the month of april, and in the course of those interviews, he saw him write a considerable deal; he saw a whole letter which he handed across to him when he had written it, and it was given back and copied again, and for about an hour he was writing different things, and handing them backwards and forwards. he says, "i also saw his papers in his writing-desk, and i verily believe that to be his hand-writing, from what i saw him write." this is the evidence, and much less than this evidence, is what we receive every day in proof of bonds, notes, and bills of exchange; a person says, i have seen such an one write, and i belief that to be his hand-writing; and that is sufficient to launch it in evidence as primâ facie proof, leaving it to the other side to resist such proof, if they can. gentlemen, now we put this person in motion from dover. thomas dennis is next called, who says, "i am a driver of a post-chaise in the service of mr. wright, at the ship, at dover. early on the morning of the st of february, i drove the chaise from thence to canterbury to the fountain inn; i drove only one person, it was a man; it was too dark to see how he was dressed; i had the leaders; he gave me and the other lad a napoleon a-piece." he could not see the person; and there is identity only by the sort of specie in which he deals. "i sold it for a one pound note. i know the lads at canterbury, who took him after me, broad, and thomas daly; i saw broad and daly set off. there is nothing extraordinary in persons travelling day or night into canterbury. i cannot say whether it might be the th or d; persons do not often give us napoleons for driving them, i never had one given me before." no immaterial circumstance to induce a recollection of this particular traveller, nor (connected with similar evidence from other witnesses) to establish his identity. edward broad, a driver of a chaise at the fountain at canterbury, says, "i remember the last witness coming to our house with a fare, early in the morning in february, i do not remember the day of the month, nor the day of the week; it was one gentleman came from the ship at dover; i drove the leaders--i drove to the rose at sittingbourn; the chaise went forward with four horses--he did not get out. michael finnis and james wakefield drove him from thence; i did not receive any money from him, the other boy received the money, i had a napoleon for my share." till the day-light breaks, we have nothing to identify him in the course of his conveyance, but the napoleons. then broad, upon his cross-examination, says, "i have long lived at the fountain, and have known thomas dennis some years; i do not know that i ever drove a fare that he brought before; i might; there are a great many boys from that inn at dover; i have driven a single gentleman before, and sometimes a chaise and four." but upon re-examination, he says, "i never before received a napoleon for it." michael finnis, the driver of a chaise at sittingbourn, says, "i remember the last witness bringing a gentleman in a chaise and four to our house, i did not take particular account of the time, it was early in the morning, it might be between four and five o'clock; i did not take particular notice, for i had no watch with me--it was dark; i drove him to the crown at rochester, mr. wright's house; i cannot say what time it was when we got there, we were not above an hour and ten minutes in going. the gentleman got out there, and gave me two napoleons, one for myself, and one for my fellow-servant; i took no particular notice of him; he had a pepper and salt coat on, and a red coat under that, i perceived, and a cap." so that this man took no particular notice of his countenance, but speaks to his dress and his appearance, as the other witnesses do. mr. wright, who keeps the crown inn at rochester, who saw him in the house, speaks with much more particularity; he says, "i remember a chaise and four from sittingbourn arriving at my house on the morning of the st of february, i remember that was the day; it was a tall person, rather thin than otherwise, who came in the chaise; he had a pepper and salt great coat, with a military scarlet coat under it; the upper coat was nearer the colour of that coat, than any thing i could state (_pointing to the coat on the table_); the scarlet military coat he had under that, was very much trimmed with gold lace down the front, as it appeared by candle light, and a military cap with broad gold lace round it; it appeared to me to be cloth or fur, it appeared to be nearly the colour of the great coat." the cap does not appear to have any resemblance to the great coat, but in all other respects his description seems to be right. "on the military coat, there was a star, and something suspended, either from the neck or the button, i do not know which, something which he told me was some honour of a military order of russia;" it turned out to be a masonry order. he is shewn the star, and he says, "it had very much the appearance of that sort of thing. i suppose i was in conversation with him about ten minutes; it was about half past five when the chaise drove into the yard; during those ten minutes i was getting some chicken for him, in our bar parlour. i was called up by the post-boy of my brother at dover, i went into the yard, and found a gentleman looking out at the front window of the chaise, and he said, he was very hungry, could he get any thing to eat? that he had ate nothing since he left calais; i asked him, if he would have a sandwich, as i supposed he would not get out of the chaise; he said he would get out, and he did get out, and i took him into our bar parlour; when he got there i said, i am led to suppose, that you are the bearer of some very good news to this country;"--a very natural overture to conversation on the part of an innkeeper, and to extract a little intelligence from him; "he said, he was, that the business was all done--that the thing was settled; i asked him, if i might be allowed to ask him what was the nature of his dispatches? he said, he is dead; i said, who? he said, the tyrant bonaparte, or words to that effect, i believe these were the exact words; i said, is that really true, sir." upon which this gentlemen seems to have been piqued at having his veracity questioned, and said, "if you doubt my word, you had better not ask me any more questions;" in answer to which, wright, not being willing to have his curiosity unsatisfied, said, "i made an apology for doubting the veracity of his story, and asked him, what were the dispatches? he said, there had been a very general battle between the french and the whole of the allied powers, commanded by schwartzenberg in person; that the french had been completely defeated, and bonaparte had fled for safety; that he had been overtaken by the cossacks, at a village which i think was called rushaw, six leagues from paris; that the cossacks had there come up with him, and had literally torn him in pieces; that he had come from the field of battle from the emperor alexander himself, and that he either was an aide-de-camp of the emperor, or of one of his principal generals." now the account he gives, tallies almost in terms with the letter which had been sent off to deal; so that there is another proof of the identity of this person, and a connexion of him with this letter sent to admiral foley. then he adds, "he told me, that the allies were invited by the parisians to paris, and the bourbons to the throne of france. that was pretty well all the conversation that passed; he ate very little, if he did any thing--he said he was very cold; i asked him, if he would take any brandy? he said, no, he would not, for he had some wine in the carriage;" it turned out that it was so. "he enquired what he had to pay? i told him, what he had had, had been so uncomfortable, i did not wish to take any thing for it; he did not accept of that, he threw a napoleon on the table, and desired me to take that for what he had himself taken, and wished me to give the servants something out of it, he meant the whole of the servants, for when he got into the chaise, the ostler asked for something; and he told him, that he had left something with his master, out of which he might be paid. he went away in the same chaise that brought him, with four horses. james overy and thomas todd, were the persons who drove him." mr. wright had proceeded thus far, and then he looked round the court, and fixing upon de berenger, said, "i believe that is the person; i have no doubt--it is certainly the gentleman; i had never seen him before, or since." this undoubted identification of person, is almost peculiar to this case; i never saw a case in which so many persons turned into the court at large, recollected a man at once, and with so much certainty. upon his cross-examination, he says, "i never saw the gentlemen before nor since till to-day; he wore a large cockade, very dirty, as if it had been worn a long time;" then he produced the napoleon; and he says, "upon looking at him, i am sure he is the same person." james overy, who was the postillion, says, "i took up a person at my master's house at rochester, on a monday; i do not remember the day of the month. i drove him to dartford, to the granby; he had on a grey mixture coat; a red coat like an aid-de-camp, adorned with a star, very full indeed, something about his neck hanging down, and a cap, and a bit of white ribbon about the cap, such as officers wear, with a gold lace band round it. when i came to dartford, it was ten minutes before seven; it was day-light two miles before we came to dartford. i am not sure i should know the person again; he gave me two napoleons, and he paid me five £. . notes, and a shilling for mine and the dartford horses, and the turnpikes; he gave us a napoleon a-piece. thomas shilling and broad took him from dartford." on cross-examination, he says, "the cap was such a cap as officers wear in a morning, slouched down, i think the top of the cap a little turned down; i did not observe the colour." william tozer, the next witness, says, "i keep the crown and anchor at dartford; i remember jem overy bringing a fare to a house in our town on a monday about the st of february, and the person i took notice of was sitting in the chaise. i made my obedience to the gentleman in the chaise, hoping that he had brought us good news; he said he had, and that it was all over; that the allies had actually entered paris; that bonaparte was dead, destroyed by the cossacks, and literally torn to pieces." here again is the same account in effect which is contained in the letter to deal, given by word of mouth, "and that we might expect a speedy peace. during the conversation, i saw him give overy two gold pieces, which afterwards proved to be french pieces; i had them in my hand. i saw enough of the person in the chaise, to be positive i should know him if i saw him again." this was the witness, who looking round, did not find the defendant; to be sure, the counsel might have asked him whether that was the person; but from delicacy that was not done, which was certainly an unnecessary delicacy upon such a subject. thomas shilling, the chaise-driver from dartford, says, "i remember taking up a gentleman who came in a chaise and four to dartford, i believe it was on the st of february, it was on a monday. i had the wheel-horses. on our road to london, he discoursed with me a good deal; the waiter at dartford, at the granby, first spoke to him, asking him whether he brought any good news; the gentleman said, yes, it was all over; bonaparte was torn in a thousand pieces; the cossacks fought for a share of him all the same as if they had been fighting for sharing out gold; and the allies were in paris. we were ordered to go on; we had gone to bexley before the gentleman spoke; the gentleman then told me not to hurry my horses, for his business was not so particular now, since the telegraph could not work. i told him, i thought the telegraphs could not work, for i knew almost every telegraph between deal and london. he then said, "postboy, do not takes any notice of the news as you go along;" i told him i would not, unless he wished me to do so; he said, i might tell any of my friends as i returned, for he durst to say they would be glad to hear it; he said he had sent a letter to the port admiral at deal, for he was obliged to do so;" therefore you have him, unless this be a premeditated falsehood in the evidence of this man, shilling, authenticating the fact of the letter from dover; "he said that he had walked two miles when he came ashore at dover, before he got to the ship inn; that the frenchmen were afraid of coming any nigher to dover, for fear of being stopped." where he got into dover, or how, we do not hear; of the points of the outward voyage we know nothing; of the homeward we have a pretty good account of all the places where he touched, &c. "then we drove on till we came to shooters hill; when i got there, my fellow-servant and i alighted, and the gentleman gave us part of a bottle of wine; he said we might drink, because he was afraid the bottle would break; he gave us some round cakes also. i chucked the bottle away, and handed the glass again into the chaise; he told me that i might have it; he then said, "postboy, you have had a great deal of snow;" i said, "we have;" he said, "here is a delightful morning, postboy; i have not seen old england a long while before;" then he asked me which was the nearest coach stand; i told him at the bricklayers arms; he told me that would not do, it was too public, he was afraid somebody would cast some reflections, and he should not like it." it was bringing him very nearly within the vicinity of the king's bench, where it should seem his countenance was better known than he liked it to be. "i told him i did not think anybody would do that, they would be too glad to hear of the news; he asked if there was not a hackney-coach stand in lambeth; i said "yes," he said "drive me there."" now it has been observed he points his direction towards lambeth, and the other express, it seems, that went through the city, which has been called the northfleet expedition, is ordered not to go lambeth, but to lambeth marsh. the learned counsel has remarked, that they are not ordered to the same point at first, and that it would have been a strong confirmatory point, if they had been so; but there is to a great degree an identity of direction, an identity of object, and something like an identity of disguise in military uniform; "he said, drive me there, postboy, for your chaise will go faster than a hackney-coach will. i drove him to the three stags in the lambeth road; there was no hackney-coach there. i ordered my fellow-servant to stop, and looked back, and told the gentleman there was no coach there; but that there was a coach stand at the marsh gate." so that the marsh gate arose incidentally, and was not his original plan; "and if he liked to get in there, i dared say nobody would take any notice of him; i think he pulled up the side blind, that had been down before all the way; when i got there, i pulled up along side to a hackney-coach; i called the coachman, and the waterman opened the coach door, and i opened the chaise door; the gentleman stepped out of the chaise into the coach without going on the ground;" the question which produced this answer was put with a view to something adverted to, as published upon the subject, in which some evidence was supposed capable of being opposed to the story of the driver, in this particular, who, however, relates it plainly and naturally, and is confirmed by the waterman, who was there at the time; "he then gave me two napoleons; he did not say one was for my fellow-servant, and the other for myself, but i concluded that it was so; i have got them here," and he produces them; so that it does not appear that he has distributed this gentleman's bounty, but he is still a trustee for his fellow-servant. "i did not," he says, "hear him tell the coachman where to drive to. the name of the coachman is crane. i know the person of the waterman very well. the gentleman was dressed with a dark fur round cap, and with white lace, and some gold round it; whether it was gold or silver i cannot say; he had a red coat on underneath his outer coat; i think his outer coat was a kind of a brown coat, but i will not swear to that; i saw a red coat underneath it, down as far as the waist; i did not see the skirts of it; i think it was turned up with yellow, but i should not like to swear that; it had some sort of a star upon it. i think upon his outer coat there was a kind of white fur; but i should not like to swear to that. i should know him in a moment. i have seen him and knew him again; that is the gentleman (_pointing to him_); i have no doubt. i saw him once before in king-street, westminster, in a room; i knew him then the moment i saw him; i never had the least doubt about him; the moment i saw him i knew him." upon his cross-examination, he says, "i was not told this morning in what part of the court he sat; i looked round the court when i came in, and saw him immediately; i never saw him before february." he is asked about a reward that was offered by the stock exchange, he says, "i heard of it the day it was printed, two or three days after this transaction happened. i remember a club at dartford, called the hat club; i was there;" and then there is some foolish story about his laying a wager there; but as there is no evidence brought to impeach his testimony upon the grounds to which the cross-examination went, it is unnecessary to pursue that part of the examination further; he says "lambeth marsh is not far from the asylum. i went there for the purpose of getting a coach; _that he says_ (pointing to bartholomew) _is the waterman_." then william bartholomew the waterman is called; he says "i am a waterman attending the stand of coaches at the marsh gate; i know shilling by seeing him come up with post chaises; he is a dartford chaise-boy. i remember his coming with a chaise on the st of february; there were four horses, and there was a gentleman in it; it was between nine and half past nine in the morning; there was only one coach on the stand; one crane drove the coach; i saw the gentleman get out of the chaise into the coach, he stepped out of the one into the other; i opened the door, and let down the step for him; he had a brown cap on, a dark drab military great coat, and a scarlet coat under it; i only took notice of the lace under it. the gentleman ordered the coach to drive up to grosvenor-square; i do not remember that he told me the street in grosvenor-square. i really think that is the gentleman, it is like him; dress makes such an alteration, that i cannot with certainty say." then mr. richard barwick says, "i am a clerk to messrs. paxtons and co. bankers, in pall mall. i remember passing by marsh gate on the morning of monday the st of february. i observed a post-chaise with four horses, it had galloped at a great rate; the horses were exceedingly hot, and i saw a man getting into a hackney coach; i followed it, and saw it as far as the little theatre in the haymarket; i wanted to know what the news was." being a banker's clerk, it was natural he should wish to know what the public news was. "i observed the coach passed the public offices in the way." it appears, that he was a little surprized at this person not stopping to communicate his news at those offices. whether he suspected him or not, he does not say; but observing that he stopped at none, and it being time for him to go to the banker's shop, he did not think it worth while to pursue him any further. this was about nine o'clock, as he supposes, that he left him in the haymarket. then he says, the gentleman had a cap on with a gold band, such as german cavalry use at evening parade; this appears to me something like it. then william crane, the coachman, says, "i remember on monday morning the st of february, taking up a fare at marsh gate from a post-chaise and four from dartford. i was directed to drive to grosvenor-square; i drove into grosvenor-square; the gentleman then put down the front glass, and told me to drive to no , green-street; the gentleman got out there, and asked for a colonel or a captain somebody; i did not hear the name, and they said he was gone to breakfast in cumberland-street; the gentleman asked if he could write a note; he then went into the parlour; the gentleman gave me _s._; i asked him for another." hearing that napoleons had been distributed to drivers, he thought that a hackney-coachman might ask for a little more of his bounty than he at first received. "he took a portmanteau that he had, and a sword, went in and came out again, and gave me another shilling. the portmanteau was a small black leather one; i saw that gentleman in king-street, westminster, at the messenger's house. i think this is the gentleman here; when i saw him in king-street, as i came down stairs, he looked very hard at me; i knew him then, though he had altered himself a great deal in his dress." upon his cross examination, he says, "i went to mr. wood's, the messenger of the alien office, for the purpose of seeing him; i walked down stairs, and met the gentleman coming up stairs, and i thought he was something like the gentleman i had carried; i do not know every person i carry in my hackney-coach; this person, when i got to green-street, i saw had a red coat underneath; the waterman opened the coach-door for him to get in." so that he was within view of the waterman. "he had on a brown grey great coat, with brown fur cap." now, gentlemen, he is brought to the house of lord cochrane; further evidence arises afterwards upon the subject of his being there. we will at present follow the dress to its conclusion. george odell, a fisherman, says, "in the month of march, just above old swan stairs, off against the iron wharfs, when i was dredging for coals i picked up a bundle, which was tied up with either a piece of chimney line or window line, in the cover of a chair bottom; there were two slips of a coat, embroidery, a star, and a piece of silver, with two figures upon it; it had been sunk with three pieces of lead and some bits of coal; i gave that which i found to mr. wade, the secretary of the stock exchange; it was picked up on the wednesday, and carried there on the saturday. i picked this up on the th of march." you have before had the animal hunted home, and now you have his skin, found and produced as it was taken out of the river, cut to pieces; the sinking it could have been with no other view than that of suppressing this piece of evidence, and preventing the discovery which it might otherwise occasion; this makes it the more material to attend to the stripping off the clothes which took place in lord cochrane's house. when he pulled off his great coat there, what must he have displayed to his lordships eyes, if present at the time? did he display the uniform of the rifle corps? the uniform of the rifle corps is of a bottle-green colour, made to resemble the colour of trees, that those who wear it may hide themselves in woods, and escape discovery there; that is, i presume, the reason of their wearing that species of uniform, and as to the idea suggested in lord cochrane's affidavit, that his exhibiting himself in that uniform would be deemed disrespectful to lord yarmouth. lord yarmouth has told us, that on the contrary he should have thought it a matter of respect to him, and proper as his officer, to have appeared before him in that very dress. the account that is given of this man's pulling off his dress, as contained in the affidavit of lord cochrane, is highly deserving of your attention. it is a rule of law, when evidence is given of what a party has said or sworn, all of it is evidence (subject to your consideration, however, as to its truth) coming as it does, in one entire form before you; but you may still judge to what parts of this whole you can give your credit; and also, whether that part, which appears to confirm and fix the charge, does not outweigh that which contains the exculpation. now i will state to you, what is lord cochrane's affidavit; it may as well come in now in this period, as in the later period in the cause; it was produced in the pamphlet published by mr. butt, and is prefaced by lord cochrane thus, "having obtained leave of absence to come to town, in consequence of scandalous paragraphs in the public papers, and in consequence of having learnt that hand bills had been affixed in the streets, in which i have since seen it is asserted, that a person came to my house at no. , green street, on the st day of february, in open day, and in the dress in which he had committed a fraud; i feel it due to myself to make the following deposition, that the public may know the truth relative to the only person seen by me in military uniform at my house on that day." now it is material to observe, this affidavit first introduced the name of de berenger in any public document; whether it was known privately at any earlier period we are not informed, the date of it is the th of march. the davidsons have informed you, that the day he finally disappeared was the th of february, (mr. cochrane johnstone having called and left a letter, for what purpose we know not, on the th,) he appears to have very soon got to sunderland, and might, on the th of march, the date of this affidavit, be reasonably supposed to have been out of the kingdom. it is in evidence, that when de berenger was taken, there was found in his writing-desk part of the produce of the exchange at the bank of four £. notes, two of the bank notes of £. being changed first into two £. notes, and then into ones; the whole are identified by the clerks of the bank; sixty-seven the produce of one £. ; forty-nine identified as the produce of another, and seven the produce also of one of those; there are traced to him likewise a £. and a £. ; the £. , traced by the evidence of smith to-day, the evidence upon that subject being deficient yesterday, i stopped them short, because i thought that the entry of the mere initials w. s. and £. , did not afford distinct and sufficient proof that the person meant by those initials was william smith, and that the £. was a sum which had passed between wm. smith, mr. de berenger's servant, and him, and that the evidence was deficient in that respect. the principal part of these are the produce of the draft of £. , and a fraction, which was changed as will appear in the evidence, when that part of it is stated to you. originally the £. draft had been laid down before and paid to lord cochrane; it had afterwards got into the hands of mr. cochrane johnstone and of mr. butt, for there appeared to be such a communication between the parties, that you cannot say from whom ultimately it proceeded, but it had been in some sort in the hands of all, and the produce of this check, originally paid to lord cochrane, is found in the desk of this man. i have been led aside by reading the affidavit to these observations on the dates. to return, the affidavit was, as i have already stated, sworn march th , by which time it might well be supposed that de berenger, if he made proper speed, had got out of the kingdom. the affidavit proceeds thus; "i, sir thomas cochrane, commonly called lord cochrane, having been appointed by the lords commissioners of the admiralty to active service, (at the request, i believe, of sir alexander cochrane) when i had no expectation of being called on, i obtained leave of absence to settle my private affairs, previous to quitting this country, and chiefly with a view to lodge a specification to a patent," there is no doubt that patent exists, and that there is a true transaction as to the patent; but whether it be introduced here as a colour, and to draw off your attention from other matters is another point. "that in pursuance of my daily practice of superintending work that was executing for me, and knowing that my uncle, mr. cochrane johnstone, went to the city every morning in a coach, i do swear, on the morning of the st of february, (which day was impressed on my mind by circumstances which afterwards occurred) i breakfasted with him at his residence in cumberland street, about half past eight o'clock, and i was put down by him (and mr. butt was in the coach) on snowhill, about ten o'clock," therefore these three gentlemen who had so much to do on that day, were brought together, and had an opportunity of communicating together at least at this time. they go on to the city together, after having, it may be supposed had so much of communication together as was necessary for the current business of the day, whatever that business was. "i had been about three quarters of an hour at mr. king's manufactory, at no. , cock lane, when i received a few lines on a small bit of paper, requesting me to come immediately to my house, the name affixed, from being written close to the bottom, i could not read;" that was certainly a very pointed observation which was lately addressed to you, by the learned counsel for the prosecution, that the name which he says he could not read, would not in all probability have been written at the bottom, for he had finished the note once, and when it was sent back to him there was space enough still left for him to write something more; for the servant says, he added something more afterwards, therefore it was not from its being crowded at the bottom, unless it be, that he had not signed any name till quite the last, and after he had written the addition which lord cochrane mentions, "the servant told me, it was from an army officer, and concluding that he might be an officer from spain, and that some accident had befallen to my brother, i hastened back, and i found captain de berenger." now certainly, his anxiety about his brother, if true, was a very good motive for his returning, but i addressed some questions to the witness on this subject; i thought it very likely if that was the motive which induced lord cochrane to return, that he should have disclosed that motive to the person who brought the note, especially as he was a servant who had been seventeen years in the family; nothing could be more natural than to say, "thomas, i hope there is no bad news from my brother, your old master;" no such thing passes, but--"well, thomas, i will return," is all that he says to him; he does not mention any thing about any apprehension as to his brother. his brother, as appears by the returns which have come home, had been wounded, or was upon the sick list; but it does not appear that he had then actually received any communication upon that subject; and which, if he had received any such, might have been expected to be proved, and might easily have been so. that his brother was in fact upon the sick list appears, but not that he then knew him to be so; nor did he intimate to the servant that came, one word of apprehension about his brother, or any mention of his health or of him, but came back immediately on receiving this note. now, with the acquaintance he had with de berenger, no doubt such application had been made to get him appointed as is proved; and he must have been, one would suppose, familiar with his hand-writing; and _if so_, he could have had no doubt who was the person from whom he received this note, and whom he was to meet when he should get home; but he says, "i found captain de berenger, who, in great seeming uneasiness, made many apologies for the freedom he had used, which nothing but the distressed state of his mind, arising from difficulties, could have induced him to do; all his prospects, he said, had failed, and his last hope had vanished of obtaining an appointment in america. he was unpleasantly circumstanced on account of a sum which he could not pay; and if he could, that others would fall upon him for full £. , . he had no hope of benefitting his creditors in his present situation, or of assisting himself. that if i would take him with me, he would immediately go on board and exercise the sharp-shooters (which plan i knew sir alexander cochrane had approved of;)" and there is no doubt that sir alexander cochrane had, on some application of mr. cochrane johnstone or lord cochrane, applied for him, but that for reasons not communicated to us, such application had not been successful, and it had not been thought fit to appoint him. then he says, "that he had left his lodgings, and prepared himself in the best way his means allowed. he had brought the sword with him which had been his father's; and to that and to sir alexander, he would trust for obtaining an honourable appointment. i felt very uneasy at the distress he was in, and knowing him to be a man of great talent and science, i told him i would do every thing in my power to relieve him; but as to his going immediately to the tonnant, with any comfort to himself, it was quite impossible; my cabin was without furniture; i had not even a servant on board. he said he would willingly mess anywhere; i told him that the ward-room was already crowded; and besides, i could not with propriety take him, he being a foreigner, without leave of the admiralty. he seemed greatly hurt at this, and recalled to my recollection certificates which he had formerly shewn me from persons in official situations; lord yarmouth, general jenkinson and mr. reeves, i think, were amongst the number; i recommended him to use his endeavour to get them or any other friends to exert their influence, for i had none; adding, that when the tonnant went to portsmouth, i should be happy to receive him; and i knew from sir alexander cochrane, that he would be pleased if he accomplished that object; captain berenger said, that not anticipating," now this is very material, "any objection on my part, from the conversation he had formerly had with me; he had come away with intention to go on board and make himself useful in his military capacity; he could not go to lord yarmouth, or to any other _of his friends in this dress_;" what is the dress that lord cochrane represents as then belonging to him? a green dress? had he a green dress? he must have had that dress with him whatever it was in which he had come in the coach; he says that would excite suspicion; why, if he had really a green uniform, that would not have excited observation or suspicion; it was the very uniform he ought to have worn; but if it was that in which he had got out of the coach, and it does not appear that he had any means of shifting himself; if he had on an aid-de-camp's uniform with a star, and so presented himself to lord cochrane, how could lord cochrane reconcile it to the duties he owed to society, and to government, and to his character as a gentleman and an officer, to give him the means of exchanging it; it must be put on for some dishonest purpose; this red coat and star, and all this equipment, must have appeared most extraordinary, and must have struck lord cochrane most forcibly, if he was not aware of the purpose for which it was used; "that he could not go to lord yarmouth, or to any other of his friends in this dress, or return to his lodgings, where it would excite suspicion (he was at that time in the rules of the king's bench); but that if i refused to let him join the ship now, he would do so at portsmouth; under present circumstances, however, he must use a great liberty, and request the favour of me to lend him a hat to wear instead of his military cap. i gave him one which was in a back room, with some things that had not been packed up; and having tried it on, _his uniform appeared under his great coat_; i therefore offered him a black coat that was laying on a chair, and which i did not intend to take with me. he put his uniform _in a towel_, and shortly afterwards went away." if he put that uniform in a towel, he must have pulled it off his back, for it was on his back before, and then lord cochrane, one would think, must have seen him do it; what business had this man with a red aid-de-camp's uniform? he had no business to wear any such garb, he was almost as much out of his proper character, as i should be if i appeared habited in the particular dress and professional habits of an officer or a clergyman; but it does not rest there, for he himself lends to this person the immediate means of his concealment, he lets him have a hat instead of his _laced cap_; and what had such a cap to do with a sharpshooter's uniform? upon seeing him appear habited as all the witnesses represent him to have been in his way from dover to green-street, grosvenor-square, would not any one who had known him before have immediately exclaimed, where have you been, and what mischief have you been doing in this masquerade dress. it is for you, gentlemen, to say whether it is possible he should not know, that a man coming so disguised and so habited if he appeared before him so habited, came upon some dishonest errand, and whether it is to be conceived a person should so present himself to a person who did not know what that dishonest errand was, and that it was the very dishonest errand upon which he had been so recently engaged, and which he is found to be executing in the spreading of false intelligence, for the purpose of elevating the funds, if he actually appeared to lord cochrane stripped of his great coat, and with that red coat and aid-de-camp's uniform, star and order, which have been represented to you, he appeared before him rather in the habit of a mountebank than in his proper uniform of a sharpshooter. he says, "he went away in the hackney coach i came in, which i had forgotten to discharge in the haste i was in. the above conversation is the substance of all that passed with captain de berenger, which, from the circumstances attending it, was strongly impressed upon my mind; i most positively swear that i never saw any person at my house resembling the description, and in the dress stated in the printed advertisement;" which i suppose will be read, "of the members of the stock exchange; i further aver, that i had no concern directly or indirectly in the late imposition, and that the above is all that i know relative to any person who came to my house in uniform, on the st day of february before alluded to, captain de berenger wore a grey coat, a green uniform, and a military cap;" now did he wear a green uniform? they are at issue upon the dress then worn by him; if he had not this dress on, what other had he? and if he had the green one on, what true or probable reason existed for the change of that? the unfitness of appearing in it before his commanding officer, lord yarmouth, is negatived by lord yarmouth himself; supposing him to have appeared in any disguise, it is the conduct of an accomplice, to assist him in getting rid of his disguise, to let a man pull off at his house, the dress in which (if all these witnesses do not tell you falsely) he had been committing this offence, and which had been worn down to the moment of his entering the house, namely, the star, a red coat and appendant order of masonry, seems wholly inconsistent with the conduct of an innocent and honest man, for if he appeared in such an habit, he must have appeared to any rational person, fully blazoned in the costume of that or of some other crime, which was to be effected under an assumed dress, and by means of fraud and imposition; this circumstance is therefore very important for your consideration; the judgment to be formed upon it must rest with you, and you will no doubt consider, whether supposing him to have appeared before lord cochrane, dressed as the witnesses represent him to have antecedently been, the circumstance of his so appearing in a dress proper for the commission of such a fraud, as appears to have been committed on that day, by attracting a false belief of the person being a messenger bringing great public news, coupled with the fact of his afterwards walking off with that dress in a bundle, instead of having that dress upon his back, and also with the evidence given in order to prove a connexion with the notes afterwards found in de berenger's desk, you are not satisfied that he was privy to and assisted in the scheme of effecting a deception upon the public. gentlemen, i have taken this subject a little out of its place in adverting to it here. to return-- mr. lavie says, "i received the parcel, (_that produced by odell_), in the stock exchange room, in which mr. baily and mr. wade were present." mr. wade says, "i am secretary to the stock exchange, in company with other gentlemen, i received from odell a bundle, said to be found in the river, which was given to mr. lavie; the star was then in two pieces, and was afterwards sewn together, for the purpose of being exhibited." then solomons, who originally sold the dress, is called; he says, "i am a military accoutrement-maker; we have a shop at charing cross, and another at new street, covent garden. on saturday the th of february," the very day before this is put into execution, with the intervention of the sunday; "a military dress was purchased at my house; a military great coat and foraging cap made of dark fur, with a pale gold border; i have since had a cap and a coat made exactly resembling them, as nearly as i could possibly recollect." he had them made i suppose in order to exhibit them. "the person purchased at our house in new street, something which came to charing cross shop, as being ordered at new street, and the person came to charing cross and took it away; there was a military great coat, a military staff coat, such as persons on the staff wear, the uniform of an aid-de-camp. i have examined the fragments, the star and the badge, i believe those to be the same, we had the very fellow-star to that; except those two, i do not know that i ever saw any star like them, the badge i did not take much notice of;" that is the silver masonry ornament, "i have examined these fragments, and they appear to be part of the same materials, the same description of embroidery, the same description of coat; i had a conversation with respect to the great coat, and also the cap; he observed that they were wanted for a person who was to _perform the character of a foreign officer_, they were to be sent into the country that evening, he took them away with him in a coach, he had a small portmanteau with him;" you remember there is a leather portmanteau spoken of; "he did not beat me down in the prices, or make any observations about money, but merely paid for them, i was conversing with him for a short time, i have been since introduced to a person at the parliament-street coffee house; i cannot undertake to say it was the person, in point of appearance he resembles him, except that the person i served had whiskers." now if you recollect the history of the whiskers, it is established that he had worn whiskers, though the woman who endeavoured to make us believe that he slept at home on the sunday night, said she had not so much as observed (though she had been his servant two years and a half) whether he had any whiskers. it appears to me that is a circumstance in the countenance of a person which one would very much observe; he says, "the person i saw in parliament-street had not whiskers;" he then looked at mr. de berenger, and said, "this is the person i was introduced to at the coffee house in parliament-street; i really cannot undertake to swear that he is the person, the gentleman that represented himself to be mr. wilson, was dressed in a different manner, he had black whiskers, and from that circumstance i could not possibly undertake to swear it was the same person, it resembles the person, except that the person i served had whiskers, i cannot say that i believe it is the person, or that it is not." mrs. abigail davidson, the woman with whom mr. de berenger lodged, is then called; she says, "in the month of february last i resided in the asylum buildings, near to the asylum; the house is within the rules of the king's bench. mr. de berenger lodged with me; he finally quitted my house on the th of february, on a sunday. i do not remember where he was on the sunday before that, i did not see him on the morning of that sunday; i cannot say whether he slept at home that night, we never attended to the door; i usually heard him in the morning, i did not hear him as usual on the morning of the st; i used to hear the bell ring for the servant, more than once; he occupied the whole of the upper part of the house, i and my husband had the two parlours. i heard him also occasionally playing the violin and trumpet, and he used to walk about; he then wore whiskers. i generally heard his bell; i did not see him come home on the monday; i saw him in the evening, about half past five; i had heard him in the afternoon. he quitted my house on the sunday after; i remember a gentleman calling on the saturday night, the day before he quitted, with a letter; i have since seen that gentleman again, i saw him at the temple; mr. lavie was then present. i cannot say that i positively knew the gentleman, but i think it was the same that i had seen deliver the letter on the th of february. mr. de berenger had two servants of the name of william smith, and his wife; when he dined at home, his servants attended him; on sunday the th, i cannot say whether he dined at home; his usual dinner hour was about four. i think his servants went out about two or half past on that sunday." if you remember, smith and his wife swear to de berenger's going out about four on that sunday, and smith says, that he and his wife went out soon after; this woman swears, that they went out at two or half past. "there was a private place where the key always hung, for the accommodation of mr. de berenger, and as the key was always under the care of smith, i did not see where the key was put that evening." on her cross-examination she is asked, what sunday it was that these servants went out to dinner at two or half past? she says, "on sunday the th, about eleven o'clock, i heard my husband observe, de berenger was gone out; i cannot say whether he slept from his bed on sunday the th; i sleep in the back parlour. i have heard him trumpet by nine o'clock, not by seven. i had no call to look after him on any morning." upon her re-examination she says, "my husband observed to me, our lodger is gone out with a new great coat on." so that he is, for the first time, observed by them in that great coat on that sunday. mr. lavie says, the person mrs. davidson saw at the temple getting out of the hackney coach, was mr. cochrane johnstone, that she said she believed that the person who was striking the jury, and who was mr. cochrane johnstone, was the person who brought the letter on the saturday. mrs. davidson, on being called again, and further cross-examined, says, mr. lavie desired me to attend to see a gentleman; i was told mr. cochrane johnstone was to be there; i will not swear that the person who left the letter was mr. johnstone. i had a conversation about the person with smith, mr. de berenger's servant. then mr. launcelot davidson, the husband of the last witness, is called; he says, "mr. de berenger lodged in my house; he quitted my house finally on sunday the th of february. the sunday before that, i saw him go out before eleven (that was on sunday the th); i had been out before; i was waiting to hear the asylum clock strike eleven; i saw him go out, i had seen him come in ten minutes before; when he came in, he had a plaid cloak on, which he had worn the winter; when he went out, he had a great coat of that colour (pointing to the grey coat produced by solomon); as he went, i observed to my wife, there goes our lodger, he has a new great coat on; he did not come home again at all during that day, that i saw or heard; i did not see or hear him the next morning before nine; i go out at nine. i generally used to hear him before that time walking about, or ringing for his servant. i made an observation upon his servants going out on the sunday at two; i do not think they were at home _at four o'clock_, which was mr. de berenger's usual dinner hour; the man servant always attended him when he dined, and the woman dressed his dinner; he did not dine at home on that sunday. a conversation took place with the smiths afterwards, respecting that sunday night." now to be sure it is a most obvious thing, that if he had been in town at that time, nothing could be so easy as to have proved where he dined; and probably those who might have been called to prove that fact, would have been persons of a better description than donithorne, tragear, and the other persons called, to give an account of him on that day. on cross-examination he says, "i had nothing to do with his domestic life. he made a loud rap at the door, and had few visitors. i am a broker, and clerk of a broker, and out a considerable part of the day." gentlemen, the next evidence applies to the northfleet part of the transaction. mr. vinn says, (and to be sure it is an odd story he tells); "in consequence of a note left at my house, dated the th of february last, i went to the carolina coffee-house on the th, where i met mr. m'rae, in company with an elderly gentleman; he desired me to sit down. i had known m'rae before for some years, he was standing near the door, and in about seven or ten minutes, he came and joined me; he told me he had known me a long time, and that he thought he had now an opportunity of making my fortune; that he knew from the knowledge i had of languages, i should have an opportunity of benefiting others and myself; i asked him what the object was; he said not to travel abroad, but probably at home, and that almost immediately; that it was a scheme that he had in contemplation, to be employed by men of affluence and consequence, and that no man was more competent than myself; he said there was no moral turpitude in the business, but that it was practised daily by men of the first consequence." what m'rae says, is, you will observe, evidence criminally only as against himself; because what he _confesses_, is not evidence to affect others. what he _does_, may affect others as parties to the conspiracy; but what he _says_ cannot affect others; "that it was only biting the biters, or in other words, a hoax upon the stock exchange; and that by going down to dartford, folkestone or dover, i should receive instructions." so that in his communications, dover is mixed with dartford, as the probable destination to which the parties to this business might be sent; "that it was necessary to have for himself and me, two dresses of french officers;" so that dresses similar to that in which the dover plan was executed, were in his contemplation. "i there stopped him, and asked him whether he really meant to be employed in this transaction; to which he replied, certainly; and that i should be in the first place remunerated, and ultimately have a fortune made me: i replied with indignation, that i would as soon be concerned in a highway robbery; that i thought he had known me better; i expressed myself rather loudly, as offended at it; he endeavoured to hush me, saying, hush! that we might be overheard. he took me up cornhill, where i left him; i told him if he would go with me to another coffee-house, i would introduce him to a person who, though i would not undertake the business, might do it. i took him there; it was the jamaica coffee-house; there was a young man there, to whom i was about to introduce him; but he turned round suddenly, and i did not: upon m'rae returning, he asked me whether i would not give him in writing some french sentences, sentences such as vive le roi, vive les bourbons, vive louis dix huit; i gave him those terms in writing;" so that he might play off those terms, to assist in the prosecution of this business. a letter is then shewn to the witness; he says "this is the letter i received from m'rae; it is his hand writing." the letter is in these terms, "mr. vinn, please to meet me at the carolina coffee-house, about eleven to-morrow, upon very particular business, yours," so and so. on his cross-examination, he says, "i am an accountant; i have been acquainted with m'rae five years and a half. i never bought and sold as a broker; i had been in business myself; there was no person to hear the conversation i have stated. i communicated this at the stock exchange to mr. rothery, and mentioned it publickly on the th, and that i had refused it; my object was not to get another person really to undertake the business, but to furnish myself with a confirmatory witness." sarah alexander is called, and she proves very material circumstances as to the preparation for this north-fleet expedition, to take place at the same period of time as that from dover. she says, "i live at fetter-lane; i have lived there ever since last september. i know mr. m'rae; he lodged on the same floor that i did; he is a married man; his wife lived with him; on saturday the th of february, he came to my room." the other military uniform, you will recollect, was purchased on this very same day for the dover scheme: "he brought a small parcel, and gave it to his wife; he said it was of value, and bade her take care of it. he went out on sunday the th; he went out between ten and eleven, and returned before twelve, and brought with him two coats and two opera hats; they were inclosed in a bundle; i saw the coats; they were very dark blue, done with braiding; they were officers coats; the flowers were of worsted embroidery; they were flat hats; one coat was lined with white silk; one coat and one hat was better than the other; the one had a brass plate and gold tassel; he put them on, and walked about, and asked whether he did not look like an officer." so that he was representing and playing this character before-hand: "he went out again, and came home before one, and brought some ribbon with him; he wanted two cockades to be made round; he applied to his wife; his wife asked what he was going to do with them; he said, to deceive the flats." so that he not only exhibits the materials by which he was to effect the fraud, but avows the object, "to deceive the _flats_;" that is, i suppose, _credulous persons_. "he put the cockades into his pocket, and the hats and coats in a bundle, and went out, saying he must be at billingsgate, to start at two by the gravesend hoy. the next day, i met him a quarter before two in cursitor-street; he was dressed the same as he went out, in his own clothes; he had apparently the same bundle; he brought home one coat and one hat; the best coat and hat were in the bundle; he said he had slept at north-fleet, but he had the appearance of not having been a-bed at all; he brought home the cockades in his pocket; he appeared very tired: his wife unripped the cockades, and took the white lining out of the coat, and carried it to the dyers to be dyed black." then she says, "from december to february we lodged together; we kept but one fire, and lived a good deal together; he was in a state of great indigence, and never had any money except a shilling or an eighteen-penny piece now and then; after the north-fleet expedition, he had a £. and a £. note, and the day before he finally left his lodgings, he had three £. notes; he finally left his lodgings on the d or d of march. on sunday the th of february, he bought a new coat and a new hat; on monday the th, he said he was to have £. for what he had done; he wished when he went away finally, for nobody to know where he was going; and i wished not to know." on the d or d of march this gentleman disappears as the other de berenger had done on the th; such were the nearly contemporaneous and similar actings of these parties. both of them on saturday are making preparations for a scheme which is to operate on london at the same period; you will consider whether there was not a communion of purpose in these persons, whether they did not conspire to produce a common end, though they might not particularly know how the others were co-operating with them at that time; in short, whether there might not be one master workman, who played the puppets in both directions. then you have the course of the northfleet people. philip foxall, (the next witness), says, "i keep the rose inn at dartford;" a letter was shewn to him, he says, "i received that letter from mr. sandom, i knew him by his frequently having chaises from my house." that note is one in pencil, ordering a chaise, "please to send me over immediately, a chaise and pair to bring back to dartford, and have four good horses ready to go on to london with all expedition." "i sent a chaise over to northfleet, and had horses ready, as the letter advised me; the chaise on its return drove furiously into my yard, with mr. sandom and two gentlemen with white cockades, and large flat hats, quite plain, except white ribbon or paper, and blue clothes, i cannot say whether they were plain. i forwarded them with four horses. i asked mr. sandom whether they would breakfast; he said no, they have breakfasted at my house, they have been out in an open boat all night, and are very much fatigued; i asked who are they? sandom said he did not know, but they had news of the utmost consequence, and begged i would let them have good horses; they ordered a chaise and horses for westminster." on his cross-examination he says, "i think i must have received the note about seven o'clock in the morning; the chaise with sandom and the other gentlemen came back in about an hour. i was surprised to see it in so short a time. i only know sandom by his having chaises at my house to northfleet. i understood he lived there; he had been in the habit for nine months before that, of occasionally having horses from my house." this evidence introduces mr. sandom in this chaise, with these persons in this assumed garb, and presents him therefore as acting in this purpose. foxall baldry is next called; he says, "i am a post-boy at the rose at dartford; on the morning of the st, i recollect a chaise coming from northfleet to our house; i have seen one of the gentlemen since; i did not know mr. sandom personally at the time; he was one of those persons; i did not know the other two; i drove the leaders. just as we were coming to shooters hill, mr. sandom got out of the chaise, and said, give your horses their wind, and when you get up the hill, make the best of your way; i will give you twelve shillings a-piece for driving; my fellow servant ordered me to go over london bridge, down lombard-street, along cheapside, over blackfriars bridge, down the new cut, and when i was in sight of the marsh gate, i was to stop." that was the line they were to take, they were to come through the town with these laurels and white cockades, which would attract attention; and it appears that this chaise came about two hours after the other, so that when the rumour began to be languid, this would revive and also strengthen it, the same report reaching london through two channels that morning. "i took that course; mr. sandom had on a brown coat, and the other two were in blue coats i think; the horses had laurels upon them; when i was in sight of the marsh gate i pulled up, the parties took off their cocked hats, put them into their handkerchiefs, put their round hats on, and they walked away." it had answered their purpose, they had exhibited themselves in the city, and they then resumed their usual habits. "i got to the marsh gate about eleven o'clock i should think; mr. sandom did not give us any thing at that time, nor pay for the chaise; he asked what house we stopped at; i told him the bull, kent-street end, and he came to us there, and gave my fellow servant a £. note and the rest in silver; the chaise he did not pay for." whether it is yet paid for, nobody has informed us. mr. baily is then called again, and he says, "in consequence of inquiries that had been made, mr. holloway and lyte attended the committee of the stock exchange. holloway denied any knowledge of the transaction, after which he came and confessed that he had planned that plot or participated in it; he said that he had done it with view to obtain money by a rise in the public funds; and lyte said that he had been employed by mr. m'rae, at mr. holloway's solicitation. lyte stated, that he and sandom, and m'rae, rode in the post chaise from northfleet to dartford, and afterwards from dartford to london; there were present at this time, mr. wakefield, mr. lavie, and mr. chaumette. holloway and lyte came together, and what lyte stated, was in the presence of holloway; he (holloway) stated, that he was not aware of the serious turn it would take; but finding that it had taken so serious a turn, he had come forward and confessed it, in the hope that the stock exchange would not pursue it to extremities. he was asked, whether he had any connexion with lord cochrane, mr. cochrane johnstone, or mr. butt, and he denied that he had;" and certainly, if his denial was complete evidence of the fact, it would be proper for your consideration in that respect; but what he admits is to be taken as against himself, subject to your discreet consideration of the whole of the circumstances; and you will, upon the whole, determine, whether these defendants conspired with the rest in the promotion of the same end, accomplished by the same or similar means, about the very same period. mr. baily adds, that nothing he supposes, but the publicity of the measures, induced holloway to come forward; and that he believes holloway stated, that he would communicate all he knew of the business, because m'rae had offered, for a large sum of money (i believe that sum was mentioned to be ten thousand pounds) to come forward; he denied also any connexion with de berenger. several brokers are then called. mr. robert hichens, one of them, says; i have known mr. cochrane johnstone for several years, i have never done business for him till the present year; from the th of february to the th, i made various purchases for him, the balance was £. , omnium, at the leaving off of the business on saturday; i furnished mr. baily with an account of the purchases and sales on monday the st; i met mr. cochrane johnstone as i was coming out of the stock exchange, about a quarter before eleven o'clock; i received an order from him on the saturday to sell £. , at one per cent. profit on the monday, and that i sold before i saw him on monday; now it does appear very probable, that the communication this person had made at dover, might have reached town before de berenger, for it appears by the evidence of wright of rochester, that he had been called up by a post-boy of his brother's at dover, who had probably brought before de berenger's arrival at rochester, some of the news which de berenger had announced at dover, for wright of rochester addresses him as a person whom he was "_led to suppose_" was the bearer of some very good news; some such cause appears to have operated, so that the stocks were at early in the morning; on the saturday he ordered me to sell a certain quantity at an eighth per cent. more; i sold the whole of it that day by his directions, at , - / , - / , - / and - / . i disposed of the whole which mr. cochrane johnstone held at one or other of those prices. then on cross-examination, he states mr. cochrane johnstone's balance on this and different days, and it appears that they had been dealing in the funds, with a view to this particular day; for a length of time they all had their hands full of omnium and consols; and the omnium having obtained a price which would allow of a profit, all was sold, and the object appears to have been as much to raise the price a little, so as to get out without present loss, as to gain a profit; this is the substance of the evidence of the different brokers, who all prove the quantities of stock, and that they were both buyers and sellers; the persons who were interested to prevent a depression, must feed the market occasionally as a buyer, i should imagine, though i am not very conversant in these things. mr. baily then states in substance, what from an inspection of the accounts, with which he states himself to have been furnished by the several brokers, hichens, fearn, smallbone, and richardson, it turns out had been the balances of the three persons, mr. cochrane johnstone, lord cochrane, and mr. butt, in the different speculation they had, which had lasted for a considerable time; from the month of november, according to mr. fearn, down to that day, and particularly from the th to the st of february (the particulars of which are specified in this paper) they appear to have had a larger balance, at least mr. cochrane johnstone appears to have had on an antecedent day, than he had on the st of february; but it appears as if they not only were speculating on what they were buying, but they were speculating to such an amount, that unless they got rid of it, every one of them might be ruined; and they had determined, it should seem, on getting a profit of about one per cent. to sell the whole. it turns out, that on the st of february, as appears by this paper, £. , of omnium, and £. , of consols, belonged to mr. cochrane johnstone; £. , , of omnium to lord cochrane; and to mr. butt, £. , omnium, and £. , consols. it appears that he sold on that day, £. , more of omnium than he had; and £. , of consols short of what he had; and with those differences merely, they, on that day, evacuate themselves of the whole; and, by mr. baily's account, you will see there was a profit upon the whole. the gross amount of the balances of all three, was £. , omnium, and £. , consols, which would make, he says, if the whole amount were reduced to consols and calculated as consols, £. , , , £. . per cents. of that quantity of stock they were holders on the st of february. when i have stated the total amount as being £. , , , per cents., that is supposing the omnium was calculated in terms of consols; he says, the fluctuation of only _an eighth_, would, upon this large amount, have been a profit of above £. , . the profit upon the sales of that day, was, he says, £. , . lord cochrane's share of this profit was, as he computes, £. , .; mr. cochrane johnstone's, £. , . .; and mr. butt's, £. , . .; he says, "if no news had arrived on the st, no person could have sold this large quantity of omnium and consols, without very much depressing the market;" therefore, it was necessary, it should seem, that there should be good news to keep up the market, that great holders of stock might get out of the adventure without loss. "i should think the news arrived in about half an hour after ten; business begins at ten; the news had a gradual effect, as the report was believed, the first decline was about the middle of the day;" he says, "the recovery of the funds was generally attributed to the chaise passing through the city;" therefore one chaise was, in point of effect, a good auxiliary to the other, and the blue coats and the worsted embroidery, aided, it should seem, the effect of the red coat and gold lace; and you will consider whether it was not all part of the same transaction. i think, he says, the chaise through the city carried it to its highest amount; i should think, he says, the accounts were time bargains, from the magnitude of the sums, and it should seem, they were so; but though the gain which these parties made, might not be a legitimate gain arising on legitimate bargains, the evil of this to the fair dealer is palpable, and the argument of its invalidity is a sword with a double edge; its operation, at any rate, is to cut very deeply into the interest of innocent dealers in the funds. mr. wetenall then speaks to the different prices of the stock on that day; he says, "i collect the prices at different times of the day, and furnish the bank with these papers. omnium left off at - / , that was the money price; the time price is generally one per cent higher. it commenced on monday at - / . on news arriving, it rose to - / ; fell back to , and afterwards to . after the stocks had begun to fall; on a report of a chaise having come through the city, they rose again." pilliner, who was a stock-broker, says; "before the st of february i had made purchases for holloway to the amount of £. , omnium, and £. , consols. i sold for him £. , omnium, and £. , consols. i saw holloway on the morning of the st;" he declines answering whether they were time bargains, or for money; "he desired me to sell his stock, to sell all about the middle of the day. i had acted as broker for him two years." then mr. steers says, "i am broker to the accountant general of the court of chancery. on monday the st of february i made purchases, as broker for the court of chancery, to the amount of fifteen thousand and odd; i bought at - / consols; that was the price about eleven o'clock, when the funds had considerably risen; that was all that i did that day for the accountant general. i can speak to nothing else that day. i purchased £. , . _s._ _d._ consols for the accountant general, on saturday, at ;" therefore the difference between - / and , seems to have been occasioned by the operation i have before stated to you. mr. wright is next called; he appears to have printed this affidavit by lord cochrane's direction, on slips for the newspapers; he says, "in a conversation with lord cochrane, when he was giving me directions, he said, i once saw captain de berenger at dinner at mr. basil cochrane's. i have no reason to think that captain de berenger is capable of so base a transaction;" giving his own name to the transaction; "but if he is, i have given the committee of the stock exchange the best clue to find him out;" he had given them a clue, by giving his name in the manner he has done in his affidavit; but it would have been very ineffectual if de berenger had carried away his own person previous to that; but it was by accident that he was found at leith. mr. le marchant is next called; there is a great deal, he says, which is no evidence against any body but the person who relates it; viz. captain de berenger, and i do not think it at all necessary to state it; he does himself no credit, and he is a person on the statement of the letters which have been read, whom government might do very well in letting ride at anchor here without going abroad. he says, however, "i became acquainted with captain de berenger about eighteen months ago, our acquaintance continued until the th of february; from the th to the th of january he spent his evenings with me occasionally; i learnt that he was connected with lord cochrane and mr. cochrane johnstone; he stated that he was about to go to america, under the command of lord cochrane; upon his mentioning this, i put the question to him, how he could possibly do it under the embarrassments that he lay under, upon which he answered that all was settled on that score; this conversation passed about the th of february; he said, that for the services he had rendered to lord cochrane and mr. cochrane johnstone, whereby his lordship could realize a large sum of money, by means of the funds or stocks. his lordship was his friend, and had told him a few days before, that he had kept unknown to him till that period, a private purse for him de berenger, he frequently mentioned particular intimacy of dining, breakfasting, and supping with his lordship; he said, in this purse he had deposited a certain per centage out of the profits which his lordship had made by his stock suggestion." this is only what de berenger says, and the declarations of persons are evidence only against the parties themselves who make them, and do not prove the fact as against any body else. "i afterwards heard of the events of the st of february, and made known my suspicions, that captain de berenger had been active in them, to captain wright of the east india company's service, and lieutenant taylor of the d infantry;" he said the per centages were for the benefit of his (de berenger's) ideas he had given to lord cochrane and mr. cochrane johnstone as to stock transactions; it applied to both. upon his cross-examination, he says, "i have been corresponding with lord cochrane, i am not now a prisoner in the king's bench, i have never had any communication with lord cochrane but in writing; my promotion is not suspended, i hold the situation of secretary and register to the court of antigua and montserrat: i have been prevented from going out in consequence of being compelled to give my evidence either at this court or some other court, and only for that purpose; this is my hand-writing; most undoubtedly i must have been compelled to give this evidence upon oath if called upon in a court of justice; i do not give my evidence from resentment, or from any refusal to lend me money; i know one palfreyman," _he_ is not called. "i am persuaded i never represented myself as having any resentment against lord cochrane to mr. palfreyman, nor said to him, that i would be lord cochrane's ruin;" and it is not proved that he did. "i never told him that i would assist the stock exchange; i have a very slight acquaintance with mr. palfreyman. the conversation with de berenger was about the th of february; he mentioned to me, that he had expectations of getting some employment in america, to serve under lord cochrane; he particularly wished to be employed, that he might be useful in drilling the sharp-shooters, and said other things of that sort; i had a very high opinion of him, as being acquainted with the service; he was adjutant for a number of years in the duke of cumberland's sharp shooters. i do not know of his making preparation to go to america at that time, if he should be successful in procuring the appointment he was soliciting." upon his re-examination, he says, "the stock exchange applied to me to give them information, and sent me a subpoena after lord cochrane's publication." the honourable alexander murray is called; he says, "i am not at present an officer in his majesty's service, i am now in the king's bench. i have been acquainted with captain de berenger a year and a half; i was introduced to him by mr. tahourdin, who is my solicitor, and likewise mr. de berenger's; we were frequently together; when i first went over to the rules of the bench, i lodged with mr. de berenger in the same house, for about one month; towards the end of january, or beginning of february, i had a conversation with him about a pamphlet that mr. harrison was writing, respecting the trial between mr. basil cochrane and mr. harrison; captain de berenger was, i knew from himself, employed in planning out a small piece of ground for mr. cochrane johnstone; he said that he had a plan in view, with lord cochrane and mr. cochrane johnstone, which if it succeeded," this is what de berenger said, "would put many thousand pounds in their pocket; i asked, is that the plan with regard to ranelagh, which it was proposed to build on mr. cochrane johnstone's land; and he said no, it is not; it is a far better plan. i knew there was a very particular intimacy between mr. de berenger and mr. cochrane johnstone; i understood lord cochrane was a more recent acquaintance, but that there was some acquaintance; i understood that there was a great acquaintance between him and mr. cochrane johnstone, and that he was with him almost every day." upon his cross examination, he says, i have known mr. de berenger a long while; he is a man of considerable science and attainments; he had been for a considerable time before employed in drawing plans for the ranelagh. mr. cochrane johnstone has a house in alsop's buildings, and about an acre of land behind it, which was to be converted into something upon the plan of the old ranelagh. as far as i have seen, i believe mr. de berenger to be a man of honour and integrity; i saw nothing but the most perfect gentleman during the time i lodged under the same roof. william carling says, "i am servant to the honourable basil cochrane. mr. cochrane johnstone and lord cochrane visited at my master's house, in company with baron de berenger, the gentleman there," pointing to him. "de berenger came there to dine as a visitor; he was invited by my master. lord cochrane and mr. cochrane johnstone dined there with him once, did not the second time; they appeared to be acquainted with him." then, on cross-examination, he is asked, when this took place, he says, "in january the first time, and the next in february. i cannot say the precise day; there was a dinner party, four or five there. sir alex. cochrane and his lady there the first time; an indiscriminate mixture of company, de berenger was one of them. i did not learn that mr. de berenger was going to serve in america." barnard broochooft, clerk to the marshal of the king's bench, is next called. he says, "i know captain de berenger. he has been a prisoner in the king's bench prison from the latter end of the year , to within a month or six weeks of the present time; he had the rules. i missed him for some months. mr. cochrane, a bookseller in fleet-street; and mr. tahourdin the solicitor, were his securities for the rules: they entered into this surety nearly two years ago. i cannot recollect seeing him on the morning of the st of february. the security was under £. ; they generally take £. beyond the amount of the debt and costs." so that it appears he was not very heavily charged in debt at that time; however, his debts might be, as supposed by lord cochrane, £. , . joseph wood, the messenger of the alien office says; "i left london on the th of april, in order to find de berenger. i found him at leith, on the th of april; i found him in possession of a writing desk, containing papers and bank notes; before i parted with any of them i marked them before the grand jury; there were guineas and half guineas, and two napoleons in the pocket book." he produced two packets, and a pocket-book containing a £. bank note, four £. notes, and two napoleons in a pocket-book. he also produced a memorandum-book, and a paper of memorandums, and a road-book. a memorandum is shewn to mr. lavie, which he says he believes to be mr. de berenger's hand writing. mr. wood says, on his cross examination, "i carried the box and the papers before the grand jury, by orders of the secretary of state. i was subpoenaed to bring it before the grand jury; the seals put on at edinburgh, were taken off by order of the secretary of state, before i went before the grand jury; it has been in my possession ever since i took it at edinburgh. when i went to holland, in my absence, mr. tahourdin wished to see it, and mr. musgrave opened it for him; the seals had been opened before that time. i was absent about a week or ten days. i was present all the time it was before the grand jury; it was locked up with all its contents; when i went out i locked it, and left it upon the jury table; i had the key; i was present when mr. lavie and mr. wakefield, and another gentleman of the stock exchange were with mr. de berenger the day he arrived. i was present the greatest part of the time. mr. wakefield went very close to mr. de berenger, and i declare i do not recollect any particular words; he put some questions respecting the stock exchange. i did not hear any names mentioned. i remember the word information, that they wanted information, but that is all i recollect. mr. de berenger said he was unwell, and exhausted by his journey. mr. wakefield conversed with him about ten minutes; i put my marks upon these things before i went to holland." so that his going to holland is immaterial, for his marks put upon them before he parted with them, identify the bank notes, and the bank clerks say they gave them in exchange for other notes. mr. fearn is shewn a check of the th of february; he says, "i gave that check to mr. butt on the day of its date." that was afterwards attempted to be proved, but it came, i think, to nothing. mr. smallbone says, "on the th of february i drew that check, which was a check for £. . . . i drew it for lord cochrane; i gave it him on some stock account; i think mr. butt was in the office at the time; i feel satisfied i gave it to lord cochrane, and not to mr. butt; i did not see him hand it to mr. butt; i presented it to him on the table, that he might see it." the check is then read, it is upon messrs. jones, loyd & company, dated the th of february, very shortly, that is on the friday before the sunday on which this person must have departed from town, it is payable to no. or bearer, and is signed william smallbone. then edward wharmby says, "i am a clerk to jones, loyd & company. i paid that check on the th of february, in one £. note, two of £. each, and a £. .; the £. note was no. , the £. notes were, one no. , , and the other , , and the £. note was no. , ." then to shew that lord cochrane dealt with the produce of this check as his own, thomas parker, the coal-merchant of lord cochrane, says, "i received in payment a bank note of £. from lord cochrane, which is this very note, the number of which is , ; i wrote on the back of the note, and that is my hand-writing." therefore it appears that this check, which was drawn for lord cochrane, was in the first instance for his benefit; for £. of it went to his coal merchant, and the other notes appear to have come to him, or to mr. butt, and the produce is afterwards found at a very critical period in the hands of this person, de berenger, seized after he had gone from london. the check itself is the th of february; the money is found in this desk after he had gone off. then the bank notes of £. each are shewn to mr. lance; he says, "on the th february i went to the bank to change some bank notes for smaller notes, by the desire of mr. butt;" the notes were shewn to him, and he says, "those are the notes," i received two hundred notes of £. each for them. upon his cross examination, he says, "i remember on the th of february mr. butt lending lord cochrane £. ;" but on examination, it turns out that he only heard it, and did not see it lent. "i went with this check to get the money to jones and loyd's, i gave the notes of £. each to lord cochrane, i was not present when lord cochrane paid those notes back to mr. butt, i received those notes from mr. butt afterwards, and it was by mr. butt's desire i changed them for small notes at the bank." then he says, "i advanced £. to lord cochrane, as clerk to mr. smallbone; when he had got this check for £. he wanted £. more; mr. butt was not present. i do not know when lord cochrane gave these two £. notes to mr. butt, which by mr. butt's desire i took to the bank." john bilson and thomas northover, who are clerks in the bank, are shewn the two notes of £. each; bilson says, these two notes were sent for payment in the bank on the th of february: i have the book here in my own hand-writing, they were paid in £. notes, and he specifies the number of each; we have looked over the notes in de berenger's trunk before the grand jury; here are forty-nine, part of the two hundred. thomas christmas says, "i am clerk to mr. fearn; i remember being sent on the th of february to change a note for £. ; i went to messrs. bond and co's.; that is the note i gave; i received two notes of £. each; i then took those two notes to the bank, and changed them for two hundred notes of £. each; i gave them to mr. fearn; i did not see what mr. fearn did with them; i put mr. fearn's name upon the two £. notes before i gave them in at the bank." mr. miller, a bank clerk, produced the two £. notes, and christmas says, "those are the notes." mr. fearn says, "on the th of february i received from christmas two hundred notes of £. each; i gave them to mr. butt, and he gave them to mr. cochrane johnstone." bilson and northover, the bank clerks, say, "that on the th of february they paid to fearn two hundred £. notes, for two notes of £. each." then they are shewn sixty-seven of the notes of £. each, found in de berenger's writing desk, and they say those are part of the notes they paid to fearn on the th of february. then wood produces a box and two watches. bishop bramley is called; he says, "i am a watchmaker and silversmith living at hull," (_the watches were shewn to him_); "i never sold this watch or that, but i sold a watch to the gentleman who sits there for £. . _s._ _d._ on the th of march, and he paid me in £. bank notes; i put my own initials upon them, i should know them again;" [_miller having produced some notes to the witness_], "all those seven notes i received of the person i sold the watch to; i put my initials and the date upon them; we took no other bank of england notes on that day; i received twenty in the forenoon, and the other eleven in the afternoon; and i marked them, and paid them away the same afternoon." bilson and northover are shewn the seven notes; they say those seven notes were part of the two hundred notes we paid to fearn, on the th of february. lance says, "on the th of february, i gave mr. butt a check on prescott & co. for £. . _s._ _d._ that is the check." isherwood, a clerk to prescott & co. says, "i paid that check, i think on the date of it, the th of february ," just before the time when de berenger went off, "in a £. bank note, no. , , and a £. note, no. , ." a £. note and a £. are shewn to him, to each of them he says, "that is the note." john seeks is shewn a cancelled bank note of £. ; he says, "i gave change for it, i cannot exactly recollect the day; here are some letters on the back that i know it by; i gave change for it to mr. de berenger's servant, smith." now there we stopped last night, upon that note, because it could not be proved that smith, de berenger's servant, paid it for his master; this morning it is proved by smith, that he did pay that £. bank note to seeks, by desire of mr. de berenger, therefore that £. is fixed upon him as drawn from the same source, namely, the bank note which had come from mr. butt. a memorandum in mr. de berenger's book, written in pencil, was referred to by the counsel, "w.s. £. ." mr. lavie says, "i never saw any writing in pencil of mr. de berenger's, but i believe this to be his writing, it is exactly the same sort of character as the other." benjamin bray is called, he says, "i live at sunderland;" he is shewn a £. note, he says, "i received it from the waiter of the bridge inn, at sunderland; i had seen mr. de berenger at sunderland, previous to that; i gave the waiter six £. notes, and ten £. notes for it, of the durham bank. mr. de berenger came shortly after to my house, to take his leave of me: i am a druggist, and agent to the durham bank. from the th to the st of march, i had known of his being at sunderland; the waiter had come requesting bank paper. i made an apology to mr. de berenger for not sending him more bank paper in change, and he acknowledged having received the whole of the notes i had sent from the waiter; he went by the name of major burne." then, on cross-examination, he says, "i know that £. . note, by the copy i made of it in my waste-book"--he had not the waste-book here, but he says, "i know it also _from my initials on the back_ of the note, made a day or two afterwards, when it was fresh in my recollection. i did not keep it distinct from my other notes, but i marked it between the st of march and the th of april; but" (what is more material) "i generally do not put my initials on bank notes, but i did on this; i had no other £. . note at the time, and have had no other since;" so that that £. . bank note is proved likewise. mr. pattesall says, "i am a partner in the house of bond & co. i did not pay that check of mr. fearn's, it was paid by mr. evans, a clerk of ours." that person of the name of evans never came, and was called on his subpoena. they then produced two napoleons, found in the pocket-book of de berenger, and with that they closed the evidence on the part of the prosecution. on the part of the defendant, they first read the letters of le marchant, which, as i have before observed, certainly reflect very much upon himself. they then call lord melville, who says, "i am acquainted with sir alexander cochrane; i recollect sir alexander more than once applying to me, that mr. de berenger might be allowed to accompany him, and to remain with him on the north american station, to which sir alexander cochrane was appointed; it was shortly before sir alexander sailed upon the command; i think it was five or six months ago. sir alexander was desirous that he should accompany him, for the purpose of instructing either a corps to be raised in that part of the world, or the royal marines, in the rifle exercise; and afterwards, when sir alexander wished that an officer of engineers should accompany him, and when i suggested that it would be difficult to give him that assistance, from the small number of engineer officers that could be procured, sir alexander mentioned, that as an engineer officer, he would be quite satisfied with mr. de berenger. i think there was some rank necessary to accompany such an appointment. i said i could not agree to the appointment, as far as the naval service was concerned, but i advised him to apply to the secretary of state, or to the commander in chief; stating, that if they agreed to it, i should have no objection to let him accompany sir alexander. lord cochrane was appointed to the tonnant, about the time sir alexander cochrane sailed. i have no personal knowledge of mr. de berenger." colonel torrens, who is secretary to the commander in chief, says, "i remember an application being made on behalf of captain de berenger in the latter end of december, or the beginning of january, by sir alexander cochrane, to urge the appointment of de berenger to go to america, for the purpose of applying his talents in the light infantry drill, that is, the rifle service; he says, there were great difficulties started to this application; and in consequence of those difficulties the appointment did not take place. it was under consideration, however, at the commander in chief's office. i do not know personally the character of mr. de berenger." then mr. goulburn, under secretary of state for the colonial department, says, "there was an application made by sir alexander cochrane, on behalf of de berenger;" but he gives no further account. william robert wale king says, "i am a tinplate worker. i was employed by lord cochrane, in making signal lanthorns and lamps. i made him a new sort of lamp, for which he had a patent. he came frequently, nearly every day, to my manufactory; he was there the st of february. he came between ten and eleven in the morning, that was about the time he usually came. i perfectly recollect the circumstance of a note being brought to him by his servant. i was present when the note was delivered. he immediately opened it, and retired into the passage; and he came into the workshop again, and shortly after went away. his lordship had been about a quarter of an hour there, that is a mile and a half from grosvenor square; his lordship only said 'very well, thomas,' not making any observation expressive of anxiety as to his brother." mr. bowering says, "i am clerk in the adjutant general's office. major cochrane, the brother of lord cochrane, was returned as with the army in the south of france, "sick," on the th of january. the returns ran from the th of december to the th of january." then thomas dewman says, "i am a servant to lord cochrane, and have been seventeen years in the family. i carried a note to lord cochrane at mr. king's manufactory; i remember the gentleman coming to lord cochrane's in a hackney coach; i do not know that i have seen him before or since. he first asked, where lord cochrane was gone to? and i told him he was gone to cumberland-street to breakfast, because his lordship told me he was going there to his uncle's; i went there after him, and not finding him, i returned to the gentleman; his lordship had told me to follow him with some globe glass to mr. king's. i had been there on saturday; i supposed he might be there; i told the gentleman that i most likely should find him there; i should however have gone, if the gentleman had not sent me; he took the note from me, and said, i will add two or three more lines. i took the note to his lordship at mr. king's; his lordship read the note in my presence; i left him at mr. king's; his lordship had no man in green-street but me; the other servant was in the country; he had been there two or three months before that; his lordship had given davis warning on his appointment to the tonnant. davis was not in his lordship's service at that time, but he happened to be in the kitchen when the gentleman came; davis is gone." this, it should seem, is only to account for not calling davis. "davis is gone with admiral fleming to the west indies. it was a little past ten when the gentleman arrived. i was engaged to lord cochrane since christmas; i had been in the family of lord dundonald; i do not know holloway or lyte. when i gave the note to lord cochrane, he said, 'well, thomas, i will return.' i waited on major cochrane when he first went into the army; i saw lord cochrane leave the place, that is mr. king's." then it is admitted, that lord cochrane has a patent for the invention of a lamp, dated the th of february last. mr. gabriel tahourdin says, "i have known mr. de berenger five or six years; i introduced him to mr. cochrane johnstone, in may . mr. cochrane johnstone was in possession of a place at paddington, named vittoria, which he was desirous of improving. i introduced de berenger to cochrane johnstone by mere chance; de berenger afterwards employed himself in preparing a plan, and had nearly completed it. shortly before mr. cochrane johnstone went to scotland, in september, he made him one payment on account of it. besides the plan, de berenger prepared a prospectus; mr. johnstone had got a number of that prospectus printed, early in october, to take to scotland with him. i conveyed a letter from de berenger, and i spoke several times to mr. johnstone, upon the subject of paying for those plans, but no price was fixed upon till february last; i made repeated applications to mr. johnstone, in a delicate way, to pay him, and on the d of february." that is a very remarkable time, immediately after the transaction on the st; if the gentleman knew any thing of de berenger's conduct, on the previous day, it may deserve consideration, whether that was the most likely time, in point of delicacy, to have made the application. "mr. johnstone sent me a letter on the d of february , enclosing a letter from mr. de berenger to mr. cochrane johnstone." now these letters, if you wish them to be read, i will read. _foreman of the jury._ we think there is no necessity, my lord. _lord ellenborough._ they relate to other work he was doing for him; there was that plan, i should have thought from two to three hundred pounds very excessive compensation for it; but still there was some claim affording a ground for money transactions to pass between them. as to the dates, there is one circumstance of mr. tahourdin dating the letter of de berenger to cochrane johnstone, enclosed in the letter of cochrane johnstone to himself, which appears not very usual in the course of business; the letters shew other transactions between them. whether they were pretended or not, or if existing, then artificially brought forward or not, may be a question; but the letters certainly are dated at a most critical time, namely, on the d of february. then he says, "there is a reference in the letter, to an assignment of some property, which de berenger had, which assignment was prepared at my office: i do not know whether mr. cochrane johnstone answered de berenger's letters." he is shewn a letter, and he says, "that is my answer to the letter of mr. cochrane johnstone; i wrote it on the d of february." there was a business to settle with lady mary crawford lindsay. there is a great deal of business certainly introduced into these letters, so much almost as to induce one to think there is an artificial introduction of business, to give the appearance of reality to the letters; however, mr. tahourdin certainly swears that there were such transactions at that period. but one cannot help recollecting that mr. tahourdin, towards the close of the case, appears to have been in communication with the two last witnesses, donithorne and tragear, on whose evidence i shall have to observe. he says, "i saw a very few days after their date, a receipt for £. . dated th september , received of c. johnstone by hands of g. tahourdin, on account of large plans;" there is a receipt for £. . dated the th of february: "received £. . on account of plans and prospectus delivered, c. r. de berenger;" and a note of hand for £. . more, de berenger to c. johnstone, dated the th of february; i saw it two or three days afterwards. so that, just after the extraordinary transaction which had such an effect upon the funds, a communication that had taken place between them, and these letters are produced, and which are conceived to be material, with reference to the question now before you. he says, "there were subordinate plans for the details of that same place." then he says, "i had become security for the rules for de berenger, some months before i knew mr. cochrane johnstone." then he is shewn the letter, which has been described as the dover letter; he says, "this certainly is not the hand-writing of de berenger; i have received a thousand letters from him, and this is not his hand-writing; i do not believe it is a disguised hand of mr. de berenger; i have always considered de berenger as a man of strict honour and integrity; i have trusted him to the extent of about £. , . in money, besides my professional claims on him." some writing in a road-book found in de berenger's desk, is then shewn to him; and how any person should have writing by him like that, purporting to be his own, and it should still not be his own hand-writing, one cannot conceive. but he says, "some of it is more like his hand-writing than others, but i do not believe," he says, "that all the writing is his; some of the letters" he says, (on being shewn the pencil-writing in the book found in de berenger's desk) "look like his writing; the smaller parts look like his hand-writing." he is asked, "whether he does not believe the whole of it to be his hand-writing?" and he says, "i do not know what to say, this pencil is not like what he writes in general; it being in pencil puzzles me more than any thing else." then general campbell is called, who says, "i know mr. cochrane johnstone; i met him the second week in october last, i think at the perth meeting; he shewed me a prospectus of a new public building to be erected in the regent's park, or in the neighbourhood of it, i think he called it vittoria." he is shewn the prospectus, and he says, "i believe this is a copy of the same that he communicated to me in his or my own apartment." then on the part of mr. de berenger, lord yarmouth is called; he says, "i am lieutenant colonel commandant of the regiment of sharp-shooters. captain de berenger was acting adjutant, a non-commissioned officer. i have known him since ; very early in that year. i cannot recollect the day. i have received letters from him, and have seen him occasionally write, and have seen him frequently on the subject of the contents of those letters, and am acquainted with his character of hand-writing." then that letter sent to admiral foley is shewn to him; he says, "if i had heard none of the circumstances, i should not have believed it was his hand-writing. he solicited to go out in the month of january last. some time back he told me, that he had very nearly arranged to go out to drill the men on board the tonnant." upon his cross-examination, he says, "the hand-writing of this is much larger than mr. de berenger's; he generally writes a round and neater hand." he is shewn another letter; and he says, "i received that letter on the day it bears date, or the day immediately after." he is then shewn the writing in the road book; and he says, "it is larger than de berenger's usual writing; some part of it is not larger, it is less round; it is more angular. i am not sufficient conversant with hand-writing, to swear either way to this." then he looks again at the letter sent from dover to admiral foley; he says, "the letter r looks very much like his hand-writing in the r of random, before de berenger, random being his second name." then being asked, what he should think of this gentleman coming to him in his bottle-green coat of uniform; he says, "it would have been more military that he should come so, though i never exacted it of him. i should not have been angry at it, but should have thought it the regular dress for him to appear in. if he had appeared before me in an aid-de-camp's scarlet uniform, and with a star, i should have been indeed surprised to see him present himself before me in that dress." sir john beresford is then called; he says, "i have seen captain de berenger twice before yesterday. i never saw him write; i know of his application to go to america, as a sharp-shooter. in the beginning of february i paid my ship off, and met mr. cochrane johnstone in town, who told me, sir alexander cochrane was very anxious he should go out in the tonnant, to teach the marines the rifle exercise. i went to the horse guards, to ask whether any thing could be done; i was told it would be useless to apply to the duke of york, and told mr. cochrane johnstone of it; this was before sir alexander cochrane sailed in january or december. i met him at dinner at mr. cochrane johnstone's. i was there to meet sir alexander cochrane, but he did not come." mr. james stokes says, "i am a clerk of mr. tahourdin; i have been so between three and four years, and during that time have frequently seen the hand-writing of de berenger; he has been a client of my master's, and has been assisted very much by him. i have seen a great deal of his writing; this is certainly not his writing, not a word of it; and the letter 'r.' (which lord yarmouth had spoken to) is not at all like it." then they call witnesses, who at last come to swear, that captain de berenger slept in his own apartments on the sunday night, the th of february; of course, if he did so, he could not have been on the st at dover, at the time sworn to by the witnesses. william smith is called; he says, "i was servant to mr. de berenger, i was so about three years and a half; i have seen him write frequently." then he is shewn the dover letter, and he says "i do not believe that is his hand-writing; the signature there, du bourg, i really believe is not his hand-writing, no part of the letter; i am positively sure it is not. he has lately lodged with a person of the name of davidson, in asylum buildings. i was with him on sunday the th of february, when he went away; i perfectly remember he was at home on sunday the th; he slept at home on the saturday night the th, and went out about nine o'clock on sunday morning; he came in afterwards at nearly eleven o'clock, and went out again immediately afterwards; he stayed out only about twenty minutes, and returned again when people were gone to church, and stayed at home till about four o'clock, he then went out again. i was not at home then, i was over the way with my master's dog, leaning with my back against the rail, when he came down on the opposite side of the road facing the door. i went out with my wife soon after, and returned in the evening about eleven or a few minutes afterwards; he was not at home then, he came home afterwards, in five minutes after i got home, that was a few minutes after eleven; he slept at home that night. i and my wife were down in the kitchen taking our suppers, and my master was in the drawing room; before we got to bed, i heard him pass my room door to go to his bed-room, that might be about half-past eleven. he did not breakfast at home the next morning; i did not see him the next morning; i saw him about three o'clock in the afternoon of monday; my wife made his bed." then he says, on cross-examination, "i let him in at a little after eleven at night. he rapped at the door in his usual way; his usual rap was not over loud, between loud and gentle; he went to his bed-room that night; i did not see him in bed the next morning, i heard him go into the bed-room." then he is shewn a letter, which he says, "i wrote to lord yarmouth," (but that is not given in evidence) "i have my master's military grey great coat here at guildhall; i never acknowledged that my master slept from home that night, to mr. murray; i never told either mr. or mrs. davidson, that coming home and not finding my master at home, i had left the key for him at the usual place in the area, that he might let himself in; i never told them so, either on monday the st or any other day, to the best of my knowledge. he has no attendance in the morning, he does every thing for himself, he does not usually ring his bell of a morning before he comes down to breakfast; he is a very quiet man, i never knew him otherwise, he never makes a disturbance, he walks about very much. my master finally left his lodgings on sunday the th; i remember changing a £. note with seeks," (that is the £. . i have mentioned to you) "received it from mr. de berenger, i received it on the th, the day he went away; i took his things to the angel inn behind saint clement's; a day or two before he left to go into the country he gave me £. . i never saw him give sophia £. . if i was in the room, i did not notice it. i do not remember, after my master finally went away, mr. cochrane johnstone's calling with a letter; i never told mrs. davidson, that a gentleman who called there was mr. cochrane johnstone. i was not at home; she told me a gentleman had called there, and described him; i said, most likely it was mr. cochrane johnstone." upon his examination i thought he had said, that he had seen him only once, but then he said, at last, that it was only once at his house. "i did not tell her on the sunday, that if my master had been at home on the saturday, when mr. cochrane johnstone brought that letter, he would have gone off on the saturday night; i did not tell her so either on the saturday or the sunday. my master was at home every day from the th to the th, going out as usual. on the st, he went out to dine; he did not tell me where he was going to, or when he came back where he had been to, that i recollect; he did not tell me he had been to mr. cochrane johnstone's, when he came home, nor before he went out, that he was going there. when i came home on the monday, i saw a strange black coat; i cannot tell whether the coat fitted my master; i never saw it on; i brushed it; i am used to brushing coats; i did not know whose coat it was; i cannot tell whether it was the coat of a man six feet high. i swore an affidavit; i drew that affidavit myself; i told mr. tahourdin of his absence on the th or th of march; i drew out the affidavit before that time, and did it without any sort of concert with any body whatever, merely for the vindication of my master's character. i sent the affidavit to be published; i found my master a very injured gentleman; i took it to mr. cochrane johnstone, and he published it." and then he says, "i let him in," that is, de berenger his master, "on sunday the th." ann smith, the wife of william smith, says, "i was a servant with my husband to mr. de berenger, in february last, and had been so two years and a half. i saw my master at home on the th of february; he went out about nine o'clock in the morning, and came in again between ten and eleven; he did not stay at home long then, before he went out again. my husband and i went out between four and five, after my master was gone out; he went out about four o'clock. my husband and i returned home about eleven, a few minutes before my master; my husband got in a little before me. my master came in that evening; he was let in by my husband, and i heard him above stairs; he had a bit of bread and a glass of ale that night for supper. i did not see him that night; it was my business to make his bed. i got up on the monday morning about seven, that was the sunday and monday before he finally went off, i am sure; i usually get up about seven. my master went out that morning before breakfast; my husband went out about eight, and my master went out a little before him; i did not see him go out nor hear him; i did not know he was out till i let him in; i made his bed on the sunday morning; i was up stairs making his bed, and he went out, i looked out of the window and saw him go; i made his bed on monday, but that was not till after he came home, which was about twelve o'clock; when i found he had been out, i went up stairs immediately to make his bed." you will consider whether there is any room for believing she might be correct, and that he might have lain down upon his bed before she made it. "the bed appeared as usual, as if it had been slept in on sunday night; i and my husband slept in our bed, and i made his bed on monday as well as on sunday. i remember how my master was dressed on the monday when he came home; he had a black coat on; he had a bundle in his hand; i saw a part of a coat where the bundle was open, a grey coat just where the knot was tied; my master continued to sleep regularly at home til he finally went away." upon her cross-examination she says, "my master had no other man servant but my husband; he used to wait upon him, and do any thing he was requested to do. i used to carry up breakfast when he rang, if my husband was out; he did not ring for my husband to attend him in the morning to dress. i supposed my master had breakfasted out when he came in; i was rather surprised that he had not rung. on the sunday, when he went out, he had on his black coat and waistcoat, and grey overalls; i did not remark that the coat was too long for him; i do not know how he was dressed when he went out on the monday; he came home in a black coat; i cannot tell whether it was the black coat in which he went out on sunday. i never saw lord cochrane. i never observed the black coat at all in the bundle; i saw part of a grey coat, and the green uniform coat was in the bundle. there was nothing extraordinary in my master's going out in green, it was his drill dress; he was in the habit of going out in it, and returning in it; i never knew of his going out in a green drill dress, and returning with a black coat before. i made an affidavit; i saw nobody on the subject of that affidavit; i saw mr. tahourdin a few days after making the affidavit. mr. de berenger wore whiskers sometimes; i do not know whether he wore whiskers then or not, i did not see much of him. i had not seen the bed on monday morning till after his return." then the ostler at chelsea, and his wife, are called to prove, that he was at a late hour in town. john m'guire says, "i am the ostler at smith's livery-stables, at the cross-keys yard, chelsea. i am acquainted with the person of mr. de berenger; i remember seeing him on the th of february; it was on a sunday. i remember it perfectly well, because i knew he was within the rules of the king's bench; and i determined to ask his servant, how he was out of the rules. he had lived at chelsea before. it was a quarter past six in the evening that i saw him at smith's stable-yard gate; he asked me if the coach to london was gone; i told him the six o'clock coach was gone, but the seven would be ready in three quarters of an hour; he said, it would not do to wait for the seven o'clock coach, and he turned round and took his way to london. when i went home that night, i mentioned to my wife, that i had seen mr. de berenger at a quarter past six. i was induced to mention it, from knowing he was in the rules of the bench, and not having seen him that way for some time before; he went from the lodgings he had at chelsea, to the king's bench." upon cross-examination, he says, "i have known him three years and a half, i knew him to be an officer in a corps of riflemen; that day fortnight i saw his servant, on the th of march, and he said, he was not clear of the bench then. last monday week i was examined by the attorney. he had on, when i saw him, a black coat, a black waistcoat, and grey overalls or pantaloons. i have seen william smith this morning. de berenger wore whiskers when i knew him before, but when i saw him on this sunday he was close shaved, he had none then; it was three miles and a half from the asylum." now it appears, that de berenger was three miles and a half from the asylum at a quarter past six, where he had dined; if he had dined any where, we have not heard. he says, "he thought it was wrong to be out of the rules, and he was shocked at it." then mr. hopper says, "i am an architect. i saw mr. cochrane johnstone's premises at alsop's buildings two nights ago." he is shewn the plan and prospectus, and he says, "from the trouble that must attend it, a compensation of from, £. to £. . might not be excessive." i have mis-stated it, therefore before; he does not say, it would not be excessive, but it _might_ not be so. then mrs. m'guire says, "i am the wife of m'guire, the ostler. i did not know mr. de berenger, when he lived at chelsea, i knew smith his servant. my husband mentioned to me on the th of february, his having seen mr. de berenger, smith's master; he mentioned it to me at ten at night; it was the sunday before shrove tuesday, it was my child's birth-day, and therefore i remember it. my husband told me, he had seen him at about a quarter past six; he said, he wondered whether he had got his liberty yet or not; i cannot particularly say whether he said it was shocking or not; he said, he wondered whether he had got his liberty." how this should have excited the curiosity of this man, one cannot well conceive; but one cannot comment upon that which one cannot read and believe. then henry doyle tragear is called; he says, "i was at mr. donithorne's house in york-street, westminster, in the month of february last. i was staying there; i went there upon the occasion of my leaving my house, no. , little queen-street, holborn, where i had carried on the hatting business. i left my house finally on the th, and went to donithorne's; i remain at his house still. i had seen mr. de berenger frequently previous to that, at mr. donithorne's house. i particularly remember having seen him there on sunday the th of february; i saw him twice that day; i saw him between nine and ten in the morning, and again between eight and nine in the evening; i saw him at donithorne's house both these times; he might stop about half an hour, more or less. i have seen him frequently talking with mr. donithorne about some drawings, designs for pieces of furniture, and things of that sort. donithorne is a cabinet maker. donithorne has shewn me these things before. i am a hat manufacturer; i am not entirely out of business but i have not a house at the present moment; i went there to reside till i could get a house to suit myself, to start in business again." according to the wife, it did not appear as if he was likely to go into business again. "my wife, mrs. donithorne and mr. donithorne were there in the evening. when he came, mr. donithorne went into the garden with him; he said he would not come into the parlour to disturb the company; i had seen him repeatedly before." then upon cross examination, he says, "i was not struck with any alteration in his appearance that night; he had no whiskers on that night; i do not know whether he had ever worn whiskers before; he had a black coat on that day; he had his hat on. it was between eight and nine when they took a walk in the garden. i cannot say whether his hair was powdered; they went out to take a survey of the premises in the morning. i have seen mr. donithorne and mr. tahourdin together one day last week. i will swear, that i did not know they were acquainted together before that time; i never was sent for to become a witness upon this occasion; i went myself; tahourdin did not send for me; i went to tahourdin i think one day last week. i did not know that i was to be a witness till last week, or that it was material i should recollect the th of february. i let my house on the th of february to samuel nicholson; and on the sunday morning following mr. donithorne came to my room, and told me a gentleman was come to look over the house, and if i would get up he should be obliged to me. i have seen smith, the servant." he then says, "i have been bail twice, once for fifteen pounds, that i believe is settled; i have been bail again, but i do not quite know whether that has been settled, nor the amount. i don't recollect if i have been bail oftener." then mrs. tragear, the wife of the last witness, is called; she says, "i know the defendant de berenger; i have seen him often. i and my husband went to stay at donithorne's when we gave up our house; the day we gave up our house was the th of february. mr. de berenger called at donithorne's on sunday the th, between nine and ten in the morning; we were not up then. mr. donithorne was in the cabinet business. he came up and said, he was anxious we should get up, as a gentleman was come to look over the house. when i got up, i threw down the sash, and saw mr. de berenger; he was measuring the ground in the garden. i am sure it was he; i saw him again in the evening between eight and nine; we were in the parlour along with mr. and mrs. donithorne; asked him to come in; and he said he would not disturb the company; he wanted to speak with mr. donithorne; they walked backwards into the garden, and i saw him no more." then, on cross-examination, she says, "my husband is deaf at times; mrs. donithorne came to call us; mr. de berenger went into the attics; he did not go into our room." it is afterwards said by donithorne, that he went two or three times into it. "i do not remember seeing any one in the garden with de berenger and donithorne; one of them held the measuring rod and the other, took the figures down. there was no snow; i think it was a wet morning, and the rain had cleared the snow away. my husband failed on the th of february; he then came to mr. donithorne's, who is a cousin." then donithorne is called; he says, "i live in york-street, westminster. mr. and mrs. tragear came to live at my house, on thursday the th of february. i had known de berenger a long while; i am very well acquainted with his person; i am a cabinet-maker; de berenger had furnished me with designs for furniture. i remember seeing him on the sunday morning, after tragear came to my house, which would be the th of february, between nine and ten in the morning; he came to look over my ground, as i was going to make some alterations in my little garden, and also some designs for cabinet work. i furnished mr. cochrane johnstone's house in cumberland-street, for miss johnstone. i saw him again between eight and nine in the evening; i let him in, and asked him to walk into the parlour where we were sitting; he said he would walk into the back-parlour; he stayed about a quarter of an hour or twenty minutes; he did not go into the garden. in the morning, we were i dare say, an hour together in the garden; he called in the evening, to give me an answer when he was to draw a plan for me." (this does not appear to be business of sufficient consequence to have led this man twice there in the course of that day.) "i was going to convert the front part of my house into an inn, and the back part into pleasure-ground; it was a misty rainy morning, and very cold." on his cross-examination, he says, "he came as the friend of mr. cochrane johnstone, to give me plans for furniture; i proposed to him surveying my house, with a view to the improvements i intended to make. i went and called mr. and mrs. tragear, and desired them to get up; i have no doubt of it, i went twice." he is then asked as to some writs against persons in the stock exchange; he says, "i employed the attorney, mr. tahourdin, by desire of mr. cochrane johnstone, to issue writs; mr. cochrane johnstone is to pay for them;" it appears that these writs are against persons for stock-jobbing transactions. "tragear never failed, to my knowledge." gentlemen--this is the whole of the evidence on each side. i have made my observations upon it, as it has proceeded. you have heard from me already, that this is a case in which both the individuals and the public are deeply concerned. it is important that public justice should be vindicated by the conviction of the defendants, if they are guilty; and that justice should likewise be done to the defendants, by exempting them from punishment, if they have committed no crime. you will consider upon the whole of the evidence, whether these several parties were connected in one common plan, and were using their several endeavours and means to raise the funds for corrupt advantage, by false contrivances, and the circulation of false intelligence--if you believe that all of them were concerned in it, you will find them all guilty--if you believe that any of them are exempt from a share in this conspiracy, you will acquit them.--you will now consider of your verdict. _mr. richardson._ your lordship stated, that there were some counts upon which they ought not to be found guilty. _lord ellenborough._ yes; gentlemen, you will find the defendants not guilty upon the first and second counts of the indictment, as those allege facts and motives, in which they cannot all be supposed to be joined. _a juryman._ they are guilty or not guilty of a conspiracy. _lord ellenborough._ yes; a conspiracy, which is a crime that cannot be committed by one; it must be committed by more than one. _the jury retired at ten minutes after six o'clock, and returned at twenty minutes before nine with their verdict, finding all the defendants--guilty._ court of king's bench. _tuesday, june ._ lord cochrane. my lords, scarcely recovered as i am from the shock, which i experienced on hearing of the verdict pronounced against me at the late trial, i must crave your utmost indulgence, not only on that account, but also because i am unacquainted with the proceedings and forms in courts of law. i feel it essentially necessary, and i trust i shall make it evident to the minds of your lordships, that it is essentially necessary to the cause of justice, that there should be a revision of the proceedings that have been lately had, and that a new trial should take place, at least as far as i am concerned and implicated in that transaction. it has been my misfortune to suffer from an intimacy, or rather an acquaintance, with men, over whose conduct i could have no control whatever. i have been informed, that it is not competent for my counsel to rise up on the present occasion to ask your lordships to grant me a new trial, and therefore it is necessary i should address you myself. _lord ellenborough._ your lordship must have been misinformed on the subject; any application you wish to address to the court may be addressed to them by counsel, and perhaps with more convenience to yourself. _lord cochrane._ i understood there was the case of a conspiracy, in which it had been held that a revision of the case, and a new trial could not be moved for, unless all the defendants appeared in court. _lord ellenborough._ that would be the same, whether the application was made by counsel or by yourself. _lord cochrane._ it is only for the purpose of preventing my counsel from trespassing on the rules of the court, that i have adopted this mode of proceeding, and i trust-- _lord ellenborough._ i am afraid, my lord, we cannot hear you, unless all the parties are present in court. that is the rule of the court, and we have acted on it so lately as this very morning. _lord cochrane._ i have to complain, that evidence was not brought forward on the late trial, which was extremely material to shew my innocence. if your lordships will permit me to read the evidence to which i allude-- _lord ellenborough._ it will answer no beneficial purpose, because we cannot advert to what you are now stating, unless the other parties convicted are now in court. _lord cochrane._ if your lordships will grant me permission to read the statement, you will be better able to judge of the propriety or impropriety of granting my application. _mr. justice dampier._ by the rules of the court it cannot be; your lordship has been informed of the practice of the court, and from that practice, the court has no power to depart. _lord ellenborough._ the practice of the court is exceedingly beneficial, and must be adhered to by us. _lord cochrane._ my lords, i have now in my hands several affidavits that will prove my innocence, if the court will hear them. they are very short. _lord ellenborough._ we have announced to your lordship the rule of practice, and we are extremely unwilling to give you any pain, but we cannot forego the regular practice of the court. we could not do it on the application of counsel, and no more can we do it upon your application. _lord cochrane._ i shall be exceedingly brief. the facts, which i shall prove by these affidavits, will sufficiently justify me; and it will redound to the honour of the judges of this land, to suffer me in this instance, though contrary to the practice of the court, to shew my innocence; when those who are guilty of this transaction, and over whose conduct i have no control, dare not appear in the place where i now stand. _lord ellenborough._ we must abide by the rules of the court. if we give way to the importunity of one, we must give way to the importunity of all; we must administer the same justice to all, without distinction of persons. _lord cochrane._ i beg only to state---- _lord ellenborough._ it would be idle to announce to your lordship, that there is such a rule of practice as that which i have mentioned, unless we meant to abide by it; the rule is, that no application can be made for a new trial, unless all the persons convicted are here: we have acted on that rule this day; and if we were now to adopt a different rule, it might very properly be said, there was one rule for the poor and another for the rich. _lord cochrane._ my lords, i have briefly to state these facts, that before the late trial, so conscious was i of my innocence, that i did not think it necessary to instruct counsel, as several gentlemen in court know. i never read over the brief on the subject, till after the trial, when i found a very gross error had crept into it, with regard to the dress of the stranger who called at my house; and my servant is in consequence represented as having admitted that he was dressed in a red coat. the fact was, that being questioned as to the colour of the coat, he stated that he appeared to be an army officer, to which he very naturally attached the idea of a red coat, for the servants did not see it. court of king's bench. monday, _ june _. _mr. gurney._ i move your lordships for the judgment of the court in the case of the king _v._ de berenger, and others. [_the officer called the defendants, who appeared, excepting the honourable andrew cochrane johnstone, and alexander m'rae._] _mr. serjeant best._ upon this occasion i appear only as counsel for mr. butt; and before i make the motion which i feel myself called upon, under the circumstances of this case to make, i take the liberty to suggest to your lordships, that if i should not succeed in my motion in arrest of judgment, there is a fact which was not proved at the trial, but which it was necessary to prove for the purpose of convicting these defendants upon any count of the indictment, in which it forms a material averment, namely, that there was war between england, and the allies of england, and france. _lord ellenborough._ i am afraid there are too many statutes which speak of war with france, for the judges to allow themselves not to have cognizance of that objection. _mr. serjeant best._ but there is none, my lord, which refers to any war between england, and the allies of england, and france. unfortunately it has been only of late that we have had allies. i make this application on the part of mr. butt only, and i submit to your lordships upon the counts on which this defendant has been convicted---- _lord ellenborough._ you appear now only for mr. butt? _mr. serjeant best._ i do, my lord. _lord ellenborough._ i have made a minute, that on the trial you told me you were counsel for the second, third, and fourth, defendants, lord cochrane, mr. cochrane johnstone, and mr. butt. _mr. serjeant best._ i am not now counsel for lord cochrane, i am moving merely for mr. butt. _lord ellenborough._ that is a new proceeding, that counsel shall renounce some clients, in order to serve others. _mr. serjeant best._ my lord, lord cochrane has desired me not to move on his behalf; and i may state so much for him, that he has no intention to move in arrest of judgment. my other client, mr. cochrane johnstone, is not here. _lord ellenborough._ if you move in arrest of judgment for one, all have the benefit of it. _mr. serjeant best._ my objections are three; first, taking the third count as it stands, (and the objections apply to every successive count in the indictment) that there is no body of crime alleged, no offence known to the law, the raising the price of the public funds not being necessarily a crime; in the second place, that if there be any crime, which is alleged, the persons who are to be affected by that crime are not particularized; my third objection is, that it is stated, that the object of the conspiracy was, to raise the price of the public funds of _this kingdom_: this kingdom being now the united kingdom of great britain and ireland, i conceive there is no kingdom of england, but that the kingdom of england is merged in the united kingdom of great britain and ireland, and i humbly conceive, nothing that is here charged has reference to any funds and government-securities, except the funds and government-securities of that part of the united kingdom of great britain and ireland, called england. my lords, i am aware of the extent to which the decisions pronounced on this subject have carried the doctrine, with respect to conspiracy; but i conceive it will not be found there is any adjudged case which goes so far as to reach this transaction, taking it as an abstract proposition, that the conspiracy was, to raise the price of the government funds of this country. unless your lordships can pronounce that the raising the price of the government funds of this country is a crime of itself, a conspiracy to raise the price of those funds cannot be a crime by itself; but in order to make it a crime, it is necessary to state some particular circumstance which gives it a criminal character.--i conceive nobody will be found to argue, that the raising the price of the public funds, without some side object, must be mischievous to the country, and therefore a crime; so far from that being the case, i conceive the higher the prices at which the government funds can be kept, except in particular cases, the better for the country, because it is upholding the credit of the country. _mr. justice le blanc._ it is stated, that they were to be raised on a particular day. _lord ellenborough._ by false reports and rumours. _mr. serjeant best._ an intention of doing that on a particular day, may be either a meritorious or a criminal action; but what i submit to your lordships, is, that of itself, it is neither the one nor the other; it is therefore necessary to put on the record something which shall bring the fact within the purview of the law. it is not stated upon this record, that the defendants were possessed of any funds, that they were desirous of selling those funds, and that therefore they meditated a fraud on the particular persons to whom they should sell their funds, by raising the price;--it is merely stated, that the object was to raise the price of the funds, which i submit to your lordships may be commendable or criminal. one can conceive many circumstances in which this might be stated to be a public mischief, and some such circumstances were stated by my learned friend, who very ably opened this prosecution upon the trial. if the public funds were raised in price on a day on which the commissioners for reducing the national debt would make purchases, that would be an injury to the country, by the commissioners being enabled to purchase a smaller amount of stock for the same amount of money; but there is no allegation of the kind upon this indictment, and in no other way, do i conceive, could the public be injured. if the public had been injured, it was enough to have stated, that what was done, was done with a view to the injury of the public; but all that i find stated upon the record, is, that the defendants conspired and agreed together to raise the price of the public funds upon a given day; and the prosecutors knew there was no purchase made by the commissioners for reducing the national debt on that day; because, as i understand the fact to be, they never purchase on a monday;--however, all that is material to me is, that the transaction is not so charged upon the face of the indictment. if i am right in this, i am persuaded your lordships will be of opinion, that this is not an indictable offence. if i am to be told, there is a distinction made between conspiracy and other offences, i submit to your lordships, no distinction which has ever been made goes to a length which reaches the present case. i am aware many acts are made criminal, being accomplished by conspiracy, which accomplished by an individual only, would not be the subject of judicial animadversion; but i can find no case (and i have very carefully looked into all of them) which carries the principle on which the doctrine relating to conspiracy is founded further than this; that in conspiracy, though the means may be lawful, yet the end must be unlawful, either as it is mischievous to the public or to individuals; and i can state no case, in which parties have been held guilty of conspiracy, where the end they have had in view has not been either mischievous to the public, or at least to a specified class of individuals. looking back to the earlier statutes and cases on the subject of the law regarding conspiracy, your lordships must collect, that neither the legislature nor the judges of the land had the least idea of embracing such a transaction as this, within their view of conspiracy. the older cases, in which the doctrine upon conspiracy has been applied, have been cases described by the statute of st edward i. of persons who have conspired to instigate a criminal prosecution against an innocent individual, and of persons who, for the purpose of supporting their unlawful enterprises, have kept retainers in the country. in modern times, the decisions have come nearer to the present case; but i think i can satisfy your lordships, there is none that reaches it. the case in which the doctrine relating to conspiracy has travelled on, if i may so say, embracing a larger compass of acts, is that of the king _v._ edwards, modern reports, . in that case the doctrine laid down is, that a conspiracy to do a lawful act for effecting an unlawful end, is a crime. if the end be unlawful in this case, undoubtedly the endeavour to accomplish it was a crime. but i submit to your lordships, as the act is stated upon the record, the end is not unlawful, and that no case can be found which shews, that the end which these parties had in view was an unlawful end. upon the principle of the case which i have mentioned, which goes far beyond the former cases on this subject, if i am right in stating, that _per se_ there is nothing criminal in raising the price of the public funds, something must be added upon the record to make that act a crime. another case is that of the king _v._ starling, siderfin, p. . it was an indictment for a conspiracy to depress what was called the gallon-trade, (that is, the practice of selling beer by the gallon) and thereby to cause the poor to mutiny, and to injure the farmers of excise; that was stated as the object of the conspirators. they were acquitted of that part of the charge which alleged an intention to cause the poor to mutiny; but found guilty of a design to injure the farmers of excise. the reporter says, after many debates it was adjudged, not that a conspiracy to injure the farmers of excise, speaking of them generally, was a crime--but, that the verdict relates to the information, the information relates to the excise, which is part of the revenue of the king; and to impoverish the farmers of excise would make them less able to pay the king his dues. and so the court, in giving judgment, say, we must look at the record, to see if we can find out that what is charged upon the defendants be that which must necessarily produce a public mischief; and they say it does in this way; that the verdict relates to the information, and the information to the excise, which is part of the revenue of the country; and, as to impoverish the farmers of excise, would render them less able to pay the king his dues, there appears a public mischief on the face of the record itself. this i take to be a strong authority in my favour; for if the court, after many debates as it is stated, and having given the subject every possible attention, came to the conclusion, that they were obliged to look at the record, to see whether the case stated on the record was one which necessarily connected the act done with some public mischief, we must necessarily infer from this, that the court would have been of opinion, that unless that necessary connexion was established by the statement on the record, the judgment ought to be different. if i am not correct in this position, the court had no occasion to look to the verdict and see whether it related to the information, and to the information, to see whether it had a relation to the revenue: the court would have said, we must give judgment against the defendants, because it is stated upon this record, that the object of the defendants was, to impoverish the farmers of excise. it is by tracing back the thing itself, by shewing that the farmers of excise are thus made less able to pay their debts to the government, and therefore that the government was to be injured, that the act is constituted an offence. there is another case, in salkeld, , the king _v._ best. the judgment of the court in that case is, that several persons may lawfully meet and consult to prosecute a guilty person; otherwise, to charge a person who is innocent, right or wrong, would be indictable. the inference is, that upon a charge of conspiracy to do an act which in itself is perfectly innocent, which is not indictable, you must state something upon the face of the record, shewing a mischief connected with it, to make it indictable. i submit to your lordships, there is nothing upon the face of this record, which does shew any mischief connected with the act which is made the subject of charge. in conspiracy as in every other offence, the means may be lawful; but in conspiracy, the end must be unlawful. it is this which constitutes the only distinction between cases of conspiracy and of any other crime; that although the means may be lawful, the end must necessarily be unlawful and mischievous. i say, it is impossible for your lordships to collect from any part of this record, that the end sought to be obtained by these defendants was unlawful, as against any act of parliament or the positive decision of any court; or unlawful, as generally mischievous to the public. it is stated indeed upon these counts, that the act was mischievous to certain individuals; and if the individuals had been named, that would have answered my objection. but i submit to your lordships, in support of the second proposition which i stated, that this offence, if it be any, is alleged in too general a way to convict any of the defendants. it would have been otherwise, if it had appeared that they were actuated by any malicious motive against those individuals, or had any clear intention of benefiting themselves at the expense of those individuals; and i may with safety to my client concede this, though i am not driven to it. on the contrary, i beg to state, it does not appear on this record, that the defendants could possibly gain any thing by what they are accused of having done; for it is not stated upon any of the counts, nor is it the fact, that they possessed one sixpenny worth of stock from the sale of which they could derive an advantage: they were therefore doing mischief without any purpose to answer by it. _lord ellenborough._ brother best, was it possible to state that their purpose was to injure certain individual persons who should purchase stock, when by no possibility could they know who the persons were that would become purchasers? if that could have been stated, can you suggest any name which in any way might have been inserted? _mr. serjeant best._ i submit to your lordship it might have been stated; and the evidence in the cause helps me to suggest an answer to your lordship's question. your lordship will remember, that evidence was given of the accountant-general of the court of chancery having made purchases of stock on this day; it might have been stated on the face of this record, that it was known the accountant-general of the court of chancery would purchase stock on the day in question, for he purchased most days, and that the offence was committed with a view to injure the said accountant-general, or the persons in whose behalf he purchases. _lord ellenborough._ i do not know, that in the course of his office he is directed to purchase on account of certain named individuals, on a given day; if he is not, even so the allegation could not be precise. _mr. serjeant best._ the stock is purchased, my lord, to the credit of a particular cause, the accountant-general being the agent in the transaction for the suitors in that cause. therefore the allegation might have been, that it was to injure the accountant-general, in his character of agent for those persons on whose behalf he purchased stock on the particular day. and this brings us to the true character of conspiracy. i submit to your lordship, this act could only be made conspiracy, by shewing that the defendants possessed stock, and by stating on the indictment, that possessing stock, they conspired to raise the price of the funds on a particular day, and that when raised, they sold their stock to certain persons specified. suppose they knew of persons who were going to purchase on this day, and with a view to make those persons pay more than they otherwise would, they did that which is charged upon this indictment; that would clearly be an indictable offence. it is not the difficulty of bringing the case within the law that furnishes an answer to the objection; if the law is defective, your lordship would recommend it to the legislature to remedy the defect, by making a new law. _lord ellenborough._ impossibility is some answer in point of law. _mr. serjeant best._ your lordships may be protecting gamblers as infamous as any of these defendants; you may be giving your support to prosecutions instituted by one set of gamblers against another, if this indictment is supported. a fair holder of stock could have no difficulty in coming by indictment, and stating, i was compelled by circumstances to lay out a sum of money in the public funds on a given day, the day on which this transaction took place, and i paid so much per cent. more for what i bought. if it is necessary to constitute conspiracy, that the intent be to injure that person who in the event is injured, then it is impossible to support this indictment. i put it most strongly against my clients when i say, they meditated a fraud upon all who should purchase stock on this day; but to use the criminal law of this country, for the protection of those who honestly purchase stock, and not to support a prosecution brought by one set of gamblers against another, your lordships will require it to be stated on the face of the indictment, who they were that were injured. _mr. justice bayley._ suppose the conspiracy had been stated in the way it is, but the allegation had gone on; that by reason of the said conspiracy, a. b. and c. who on that day were obliged to purchase stock, were obliged to pay a larger sum than they otherwise would have paid? _mr. serjeant best._ that would have answered my objection, and that is the way in which it should have been stated; because then your lordships would see, you were raising the arm of criminal justice to protect those who were the objects of its protection. _lord ellenborough._ your argument goes upon this supposition, that the description of persons to be affected by a criminal act, may lessen its criminality, which it does not. _mr. serjeant best._ but i submit to your lordship, there must be something to be gained on the part of the actors, moving them to injure those who are capable of being injured by the act which is done. no such thing is stated upon any part of the indictment. a conspiracy may be complete without any act, but there must be an intention. i say, the intention here, is too generally stated; strike out all but the words, "conspired to raise the price of the public funds," and i ask your lordships whether it would be possible to pronounce any judgment upon it. _mr. justice dampier._ how could the object have been stated with more particularity, with reference to a future event, than that it was to raise the price of the public funds? _mr. serjeant best._ i do not state it to be necessary that any damage should actually follow, but damage must be meditated by the conspirators, either a damage which aims at the public at large, or at some individual. it could not have been stated, nor is it stated, that any damage was aimed at the public at large; was any meditated against a part of the public? they must be individuals. _mr. justice dampier._ all the public could not be named; and individuals could not be named, because of the impossibility of knowing the individuals. _mr. serjeant best._ i submit to your lordship there could be no difficulty in that. if the indictment had been preferred before the st february, your lordship's observation would be unanswerable; but after that period, the prosecutors could have no difficulty in obtaining the names of individual purchasers from the books of the stock exchange. _mr. justice dampier._ the crime was complete before the st of february. _mr. justice le blanc._ if the conspiracy was, by false rumours to raise the price of the public funds on a certain day, with a view to oblige persons who should purchase into the funds on that day to pay an increased price, the crime would be complete if the funds were raised on that day, though no person should purchase a halfpenny-worth of stock; in like manner as conspiring to raise the price of commodities in a market, though no person should purchase, would still be a crime. _mr. serjeant best._ the commodities in a market are articles of necessity, which, i apprehend, makes a distinction. _lord ellenborough._ whether it be an article of necessity, or if universal sale, comes to the same thing. besides, as to not stating the multitude, one would think we had forgotten the number of cases which have been decided on charges which are in their nature multitudinous; as for instance in barratry, or the inciting persons to institute and maintain suits; in those instances you need not state the individuals injured. _mr. serjeant best._ the instances of barratry and of common scolds, i believe, are the only exceptions. _lord ellenborough._ by no means; i remember a case in which it was held, that where the circumstances cannot be conveniently specified upon the record, the necessity forms the exception. _mr. serjeant best._ but in all those cases your lordship will find the excuse is stated upon the record; as ignotum, where an unknown person has been murdered. _lord ellenborough._ in this case the nature and reason of the thing suggest the excuse, or one must reject one's common sense. the nature and reason of the thing form an exception, if it could be necessary to state the name of an individual, as having suffered from an act of this kind; but it is the tendency of the act, not the success of it, that constitutes the crime. if there had been an apprehension of pestilence or commotion, which made it unsafe to resort to the stock exchange on the day on which the fraud was practised, the crime would have been as complete by the conspiracy, as it was by the damage sustained by individuals who suffered under it. _mr. serjeant best._ in whatever way your lordships dispose of these objections, i shall be satisfied. i am sure your lordships will excuse my mentioning, in a case of this sort, the king v. robe, d strange, p. , though it is not a case of conspiracy. _lord ellenborough._ no doubt they ought in that case to have specified the persons, they had the means of stating every one of them. the offence did not consist in the combination, but in doing the very act they combined to do. _mr. serjeant best._ another objection which applies to all the counts is, that it is stated, the intention was to produce a great rise in the government funds of this kingdom. it appears clearly on the face of this record that the intention was very different; in fact there are no general government funds belonging to the united kingdom of great britain and ireland. _mr. justice bayley._ but there are british and irish funds? _mr. serjeant best._ certainly, but that is not the allegation; the allegation is, that it was with a view to raise the funds of this kingdom, which supposes there are general funds of great britain and ireland; whereas the funds of each are entirely distinct, and of that your lordships will take notice, because there are acts of parliament which speak of the british and irish funds separately. therefore i submit to your lordships, it is impossible those defendants could contemplate the mischief with which the count concludes. _lord ellenborough._ in a large sense, the irish funds are funds of this kingdom, and so are the british; they are each a part of the resources and means of the united kingdom. _mr. serjeant best._ it is impossible they should have had in view the irish funds. _lord ellenborough._ why not? i believe the irish funds are saleable upon the stock exchange as well as the british. the interest is payable in this country, and the great money-market is here; and i believe full as much is done in the irish funds here as in ireland. _mr. serjeant best._ i am unacquainted with the fact; still i insist, that those funds could not be called the funds of this kingdom? _lord ellenborough._ i think they could not be correctly called otherwise; they are funds of the kingdom in a large sense. _mr. serjeant best._ a very large part of the irish funds were not raised by the united parliament; and they have been kept distinct ever since the union. _lord ellenborough._ they may be distinctly arranged, and the application of them may have been in different ways; but still they are a part of one whole, they are a part of the stock and revenues of the united kingdom. mr. park, my lords, i am counsel for mr. de berenger alone. the first two general grounds of objection, my learned friend has argued very fully, and i shall not trouble your lordships upon them; but i confess there seems to me to be a great deal of weight in the last objection. your lordship will recollect, the beginning of this indictment states his majesty to be (as the act of parliament requires he shall be stated) the king of the united kingdom of great britain and ireland. the very first article of union requires, that after a day specified, the kingdoms of great britain and ireland shall be called the united kingdom of great britain and ireland. throughout this indictment, in all the counts except the last, the offence charged is stated to have been committed for the purpose of creating a rise in price of the funds of _this kingdom_. now your lordships perhaps may not be aware, that in the seventh article of union it is expressly provided, that the funds of the united kingdom, forming the separate funds of the two kingdoms, shall continue to be kept distinct. but after the indictment has stated his majesty as king of this kingdom, which can only mean of the united kingdom, then what is stated of the funds of this kingdom, can only relate to funds of the united kingdom; not in the large sense in which your lordship considers them, as forming a part of the funds of the united kingdom, but in the same sense the general funds of the united kingdom, as his majesty is stated to be the king of this kingdom; whereas by the articles of union, the funds of the united kingdom are to be considered two distinct funds. _mr. justice dampier._ then the statement relates to a fund, which, by law, can have no existence. _mr. park._ that may be, my lord. _mr. justice dampier._ if it could by possibility relate to no other fund, the objection might be a good one; but there is a sense in which it does relate to the funds of the united kingdom, distributively considered. _lord ellenborough._ it is a description applicable to a new state of society, namely, to the aggregate kingdoms of great britain and ireland; and the funds of the kingdom are the funds of the united kingdom. _mr. park._ i only mention this to draw your lordship's attention to the statute, in addition to the observations which my learned friend has made. before i sit down, your lordship will give me leave to suggest to the court, upon the motion for a new trial, in addition to what the learned serjeant threw out, an observation founded upon the russian cases, where an order of council was stated, which your lordships decided you could not take judicial notice of, that there was no proof of the falsehood of the rumours by which, they say, the price of the funds was to be raised. _lord ellenborough._ but there was proof of the fabrication of them. _mr. serjeant pell._ on the part of mr. holloway, mr. random, and mr. lyte, i am not disposed to trouble your lordships with any observations in arrest of judgment. _lord ellenborough._ does lord cochrane wish to address any thing to the court? _lord cochrane._ my lord, i am desirous, previously to your passing judgment upon this matter, that i should have an opportunity of explaining those things which i deem essential to be brought under your consideration. _lord ellenborough._ if you mean to offer any observations in arrest of judgment, this is the proper time; we will afterwards hear, as a distinct thing, whatever may occur to you as fit to be presented to the court, to induce them to grant a new trial; that is probably your object. _lord cochrane._ i do not move in arrest of judgment. lord ellenborough, i am perfectly clear there is no ground for the motion in arrest of judgment, and that a public mischief is stated as being the object of this conspiracy. the conspiracy is, by false rumours to raise the price of the public funds and securities; that crime is committed in the act of conspiracy, concert, and combination, to effect the purpose, and the offence would have been completed even if it had not been pursued to its consequences, or from circumstances the conspirators had not been able to effect it. and the purpose is in its nature mischievous; it is one which strikes at the value of a vendable article in the market, and if it gives a fictitious value, by means of false rumours, it is a fraud on all who may by possibility have to do with that article; it is a fraud on all the public who may have to do with the funds on the day to which the conspiracy applies. it seems to me quite unnecessary to specify the persons who became purchasers of stock, for without the gift of prophecy how could the defendants know who would be purchasers on a succeeding day? the impossibility is the excuse; besides if it were possible, the multitude is an excuse in point of law. but such a statement is wholly unnecessary, the conspiracy being complete independently of any persons becoming purchasers. mr. justice le blanc, the motion in arrest of judgment has been made upon three grounds; the first, that it is no crime in itself to raise the price of the public funds, and that we are to look to the indictment to see what is the mischief charged. the charge in the indictment is a conspiracy by false rumours to raise the price of the public funds on a particular day. i admit that the simple fact of raising or lowering the public funds is no crime. a man having a necessary occasion to sell a large sum out of the stocks, though it may have the effect of depressing the funds on that day; or to purchase a large sum, though he thereby raises the funds, commits no offence. but if a number of persons conspire to raise the funds on a particular day by spreading false rumours, that is an offence, and the offence consists in raising the funds by false rumours on that day, not in the simple act of raising the funds. the next objection is, that the indictment states a purpose to defraud, without naming the persons who were to be defrauded. from the nature of the case, persons could not be named; the offence was a conspiracy on a previous day, to raise the price of the funds upon a future day. it was therefore uncertain who would be the purchasers; but the object was, that the price of the funds should be raised to all who should become purchasers on that day, and could not be aimed at particular individuals. the offence was general, in the same manner as if a false rumour were spread previous to a market-day, to raise the price of some commodity which should be brought to market. a further objection is, that the indictment refers to the funds of _this kingdom_, and that since the union, this kingdom can only mean the united kingdom of great britain and ireland. but although particular sums may be applied to the particular service of one or the other part of the united kingdom, yet the public funds of either part are funds of the united kingdom, and go in furtherance of the general service of the united kingdom. it appears to me there is no reason why this judgment should be arrested. mr. justice bayley, if the question admitted of any doubt, i should be desirous of giving the defendants the advantage of that doubt; but it seems to me perfectly clear, that there is no foundation for any one of the objections that have been made. to raise the funds may be an innocent thing; but a conspiracy to raise the funds by illegal means, and with an illegal view, is, as it seems to me, a crime; a crime which might perhaps affect the public in its aggregate capacity; but which, if it take effect, will certainly prejudice a class of his majesty's subjects; and it is not necessary to constitute a crime, that it should be prejudicial to the public in its aggregate character, or to all of his majesty's subjects, it is sufficient if it be prejudicial to a class of his majesty's subjects. here is not only a conspiracy for an illegal end, but a conspiracy to effect that end by illegal means; because when it is endeavoured to raise the funds by false rumours, the means are illegal, then is the end illegal. the object is to produce a temporary rise in the funds without any foundation; and the necessary consequence of that is, all those who purchase on the day, and during the period of time that rise affects the funds, will necessarily be prejudiced. another objection is, that the indictment does not state by name the persons whom the defendants intended to defraud; but it is said, the indictment would have been good if it had stated, that by means of this conspiracy certain persons, naming them, had been prejudiced. as to that, the conspiracy constitutes the crime, and it is sufficient to state the crime upon the indictment in the way it existed at the moment when the crime was complete. it might have happened from circumstances coming to light, that the plot should be detected before the mischief had been effected; yet the offence would not have been less, because the parties had done all in their power, and every thing that was necessary to constitute the crime, when they had formed the conspiracy, and used the illegal means for an illegal purpose. it depended not on them how far their crime would be prejudicial to others; but their criminality must depend on their own act, not upon the consequences of that act. the other objection is, that the indictment describes the funds to be raised as the funds of _this kingdom_. it is true, that since the union the funds which are raised must be raised in certain proportions upon one part of the kingdom and upon the other: but when those funds are raised, they become respectively the funds of the kingdom, they are raised by the legislature of the kingdom, and are applied by the government of the kingdom to such purposes as parliament say they are to be applied to. but if you can properly predicate of them, that they are funds, in part only applicable to england, and in part to ireland, still it is true that those two funds do constitute the funds of this kingdom; and when it can only be said, that the funds of this kingdom are distinguishable into british and irish funds, then when you speak of the funds of this kingdom, you mean both the british and irish funds. mr. justice dampier, the charge upon this indictment is, that the defendants, by false rumours, conspired to create a temporary rise in the funds of the kingdom, in order to defraud those who should purchase into the funds on a particular day. i cannot raise any doubt in my mind, but that this is, according to any definition of the act of conspiracy, a complete crime of conspiracy. the means are wrong, they are false rumours; the object is wrong, for it is to give a false value to a commodity in a public market; and the consequences are injurious to all who have to purchase that commodity. this disposes of the first objection. the second objection is, that the persons defrauded ought to have been named. the first answer to that is, the crime of conspiracy is complete when the concert to bring about an object with a mischievous intent is complete; it is not at all necessary for the perfection of the crime that its object should be attained. therefore, the first answer is, there need be no person injured. the next answer is the impossibility of the defendants knowing before-hand who would be defrauded. it is said, the indictment was preferred after the mischief had taken effect, therefore the persons injured might have been named; but to require such a statement we must hold, that the consequential damage created by this crime is necessary to constitute the crime itself. the third objection is, that there are no such funds as the funds of _this kingdom_; that there are no funds raised at the common charge of both parts of the united kingdom. but every fund that is raised from either part becomes, when it is raised, a fund of the kingdom at large, and is strictly a part of the funds and government securities of the united kingdom; the united kingdom is answerable for them, and for the service of the united kingdom, whether applied to england or ireland, it is that they are raised. i think the description is better than any other which might be framed. for these reasons i am of opinion, there is no ground to arrest the judgment, nor any doubt to require a rule for a further discussion. _lord ellenborough read the report of the evidence._ lord cochrane, your lordships having listened to those who had any thing to offer which they considered material for their defence, emboldens me to trust that your lordships, though i do not address you by counsel, will grant me a similar indulgence, and even that you will extend that indulgence further to me on account of my not appearing by counsel, for the reasons which i had the honour to state to you upon a former occasion. in order that those feelings which must agitate me on the present occasion, may as little as possible enter into what i have now to state, i have judged it proper to reduce it to writing; and in order to give the court as little trouble as possible, to make my statement as short as the circumstances of the case appear to me to admit of. it has been my very great misfortune to be apparently implicated in the guilt of others with whom i never had any connexion, except in transactions, so far as i was apprised of them, entirely blameless. i had met mr. de berenger in public company, but was on no terms of intimacy with him. with mr. cochrane johnstone i had the intercourse natural between such near relatives. mr. butt had voluntarily offered, without any reward, to carry on stock transactions, in which thousands, as well as myself were engaged, in the face of day without the smallest imputation of any thing incorrect. the other four defendants were wholly unknown to me, nor have i ever, directly or indirectly, held any communication with them. of mr. de berenger's concern in the fraud, i have no information, except such as arises out of the late trial. with regard to mr. johnstone and mr. butt, i am willing to hope that they are guiltless. they repeatedly protested to me their innocence. they did not dare to communicate any such plan to me, if such was projected by them, or either of them. be they guilty, then, or be they, one or both, erroneously convicted, i have only to lament, that, without the most remote suspicion of their proceedings, if they, or either of them, were concerned in the fraud, i have, through my blameless intercourse with them, been subject to imputations which might, with equal justice, have been cast upon any man who now hears me. circumstanced as i am, i must keep myself wholly unconnected with those whose innocence cannot be so clear to me as my own. well had it been for me if i had made this distinction sooner. i do not stand here to commend myself--unhappily, i must seek only for exculpation; but i cannot exist under the load of dishonour which even an unjust judgment has flung upon me. my life has been too often in jeopardy to make me think much about it; but my honour was never yet breathed upon; and i now hold my existence only in the determination to remove an imputation, as groundless, as it is intolerable. the evidence which i now tender to your lordship, will aid me in performing this duty towards myself, my rank, and my profession. i first offer the affidavit, which i have repeated at a risk which i formerly had no opportunity of encountering. i have been told, that i then incurred the moral guilt of perjury, without exposing myself to the legal penalties. i know nothing of such distinctions. i have repeated the statement upon oath--and i am now answerable to the laws if i have falsely sworn. the affidavits of three persons who saw de berenger at my house on the st of february, fully confirm my statement, and i have only been prevented from bringing forward a fourth, by his sailing to a distant situation, before i could possibly stop him for this purpose. the grounds upon which i have been convicted are these:--that notes were found in de berenger's possession which had been changed for others, that had once been in mine. that de berenger came to my house after returning from his expedition; and that my account of what passed at this visit is contradicted by evidence. the first ground has been clearly explained away; it amounts to nothing more than that which may happen to any man who has money transactions. mr. butt voluntarily made purchases and sales of stock for me, and having received a small loan of money from him, i repaid him with bank notes which he used for his own purposes. he says that he exchanged these notes, and that a part of the notes which he received in exchange he paid to mr. cochrane johnstone, who states, that he gave them to de berenger in payment of some drawings; but with this story, whether true or false, i have no manner of concern, and consequently no wish to discuss it. in what way soever the notes which were received in exchange for mine reached de berenger, i can only say, that mine were given to mr. butt in discharge of a _bonâ fide_ debt; and i have no knowledge whatever of the uses to which he applied them. de berenger's coming to my house, i before accounted for upon the supposition of his being unconcerned in the fraud; but is it not obvious that he might have come there to facilitate his escape, by going immediately on board of my ship, with the additional prospect of obtaining employment in america? it has been said that there was a suspicious degree of familiarity in his treatment of me and my house. i can only observe, that over his conduct i had no controul. but he knew, it seems, of my change of abode, which had occurred within a few days. i trust it will be recollected, that he is proved to have left town three days after such change, and that though not intimate with me, he had the means of knowing where i resided, even if he should not have enquired at my former lodgings, where my address was left. indeed, if taking refuge in my ship, in order to facilitate his escape, was part of his scheme, it was very likely that he would have ascertained the precise place of my abode, previous to his quitting london. again, i am said to have left the tinman's, (where i think i should hardly have gone had i expected such a messenger) as soon as i heard of the officer's arrival. i was in apprehensions of fatal news respecting my brother then in france, from whom i had received a letter but three days before, with the intelligence of his being dangerously ill; and i now tender you his affidavit, with the surgeon's certificate, dated the th of february, which he brought home with him. and therefore, on receiving the note from de berenger, whose name i was unable to decypher, and as that note announced that the writer, whom i learnt from my servant had the appearance of an officer in the army, who was desirous of seeing me, i hastened to learn intelligence so anxiously expected; nor had i the least doubt that it related to my brother. when, however, i found that the person was de berenger, and that he had only to speak of his own private affairs, the apparent distress he was in, and the relief it gave my mind to know that he was not the bearer of the news i dreaded, prevented me from feeling that displeasure which i might otherwise have felt at the liberty he had taken or the interruption it had occasioned. comments have been made on my saying so little to the servant who brought that note; but the fact is, i did ask him several questions, as appears by his affidavit. that i did not learn the name of the writer from the note itself, i have truly accounted for, by its being written so close to the bottom of the paper that i could not read it. this assertion is said to be contradicted by the circumstance of the writer having found room to add a postscript, as if there was only one side to the paper. of the postscript i have no recollection, but it might have been written even opposite the signature. that i did not collect from the hand-writing, that it was addressed to me by de berenger, is nothing extraordinary; my acquaintance with that person was extremely slight; and till that day i had never received more than one or two notes from him, which related to a drawing of a lamp. i was too deeply impressed with the idea that the note was addressed to me by an officer who had come with intelligence of my brother, to apprehend that it was written by de berenger, from whom i expected no communication, and with whose hand-writing i was not familiar. all that i could afterwards recollect of the note, more than what is stated in my affidavit is, that he had something to communicate which would affect my feeling mind, or words to that effect, which confirmed my apprehensions that the writer was the messenger of fatal news of my brother. if de berenger had really been my agent in this nefarious transaction, how i should have acted or where i should have chosen to receive him, it is impossible for me to say: but i humbly apprehend that my own house was not the place i should have selected for that purpose. the pretended du bourg, if i had chosen him for my instrument, instead of his making me his convenience, should have terminated his expedition and have found a change of dress elsewhere. he should not have come immediately and in open day to my house. i should not so rashly have invited detection and its concomitant ruin. but this is not the only extravagance of which i am accused. what supposition short of my absolute insanity will account for my having voluntarily made the affidavit which has been so much canvassed, if i really knew the plot in which de berenger appears to have been engaged? let me entreat your lordships consideration of the situation in which i stood at the moment in which that affidavit was made; i was suspected of being connected with the pretended du bourg; if i had known that de berenger was the person who had assumed that name, could i possibly have betrayed him, and consequently myself, more completely than by publishing such a detail to the world? the name of de berenger was never mentioned till brought forward in my affidavit; which affidavit was made, as sworn by mr. wright, a witness on the trial, with the circumstance present to me, and remarked by me at the time i delivered it to him to be printed, that if de berenger should happen to be du bourg, i had furnished a clue to his detection. the circumstance of his obtaining a change of dress at my house, never could have been known if i had not voluntarily discovered it; and thus i am represented as having brought him publicly to my own house, of being the first to disclose his name, and of mentioning a circumstance, which, of all others, it was the most easy to conceal, and, if divulged, the most certain to excite suspicion! is it not next to impossible, that a man, conscious of guilt, should have been so careless of his most imminent danger? my adversaries dwell upon some particulars of this affidavit, which they pretend to find contradicted in the evidence. the principle one is my assertion that berenger wore a green coat. i have repeated this assertion upon oath, under all the risks of the law; and i also solemnly affirm, upon my honour, which i regard as an obligation no less sacred, that i only saw him in that dress. the witnesses on the part of the prosecution have asserted, that he wore a red coat when he arrived in town. granted. but may he not have changed it in the coach, on his way to green-street? where was the difficulty, and for what purpose was the portmanteau? my own fixed opinion is, that he changed his dress in the coach, because i believe that he dared not run the risk of appearing in my presence till he had so changed it. i tender affidavits of those who saw him, as i did, in his green coat, at my house. that he should have changed his dress before i saw him is most natural, upon the supposition of his wishing to conceal from me the work he had been about; but it is like many other confirmations of my innocence, fated to excite no attention in the minds of those who only seek food for their suspicions. much is said of the star and other ornaments, as if any proof had been given of his wearing them in my presence. he took especial care, i doubt not, to lay them aside on his way, when he had divested himself of his official capacity, long before i saw him. the small portmanteau before-mentioned, which it is admitted he brought with him, in all probability furnished him with the green coat, and received the red coat and its ornaments, and very possibly for this reason no remark has been made upon it. a good deal of observation has been bestowed upon de berenger's unwillingness to appear before lord yarmouth in uniform, and the inference was, that this uniform could not have been the green dress of his corps, otherwise he must have felt the reverse of uneasy at being seen in it by his colonel. does any volunteer officer go out of a morning to make calls in his regimentals? could so unusual a circumstance have failed to excite remark from lord yarmouth? to me, indeed, he had explained himself--he had of necessity told me his nearly desperate state, in asking me to receive him on board my ship; but is there any thing so very incredible in the statement that he was unwilling to tell his whole case to every body? it may now doubtless be perceived, that he might have had other reasons for disliking to go out in a green dress. let it, however, be recollected, that my statement was, that he only asked me for a hat in lieu of his military cap, and that the black coat was my own voluntary offer. the idea of his applying to lord yarmouth, or to any other of his friends, originated with me, and i proposed it in consequence of his calling to my recollection the certificates he had received from them. i then had no suspicion awake, and i believed what he told me. in what manner the disguise was ultimately disposed of i can only conjecture, as any one else might, from the evidence given on the trial. he presented himself to me in a grey great coat, and a green under coat; and if the persons whose affidavits i now tender had been examined on the trial, and they did attend for that purpose, i do feel persuaded that a very different impression would have been made on the jury and the world at large, than that which they appear to entertain; and that your lordships might have been disposed to take an opposite view of the case as it affected me. those witnesses would have corroborated the particulars of my affidavit relative to de berenger's dress, when i first saw him at my house, namely, a grey great coat, and a green under coat and jacket. unfortunately, through some mistake or misconception, not on my part, they were left unnoticed, and, of course, were not examined. i have now to offer their several affidavits to your lordships. i would further submit to your lordships, that my affidavit was made at the impulse of the moment, as soon as i heard that placards had been posted, stating that the pretended colonel du bourg had gone to my house; and in the conscious rectitude of my own conduct, i not only introduced the name of the only officer i saw at my house on the day stated, but narrated every occurrence that took place, and all the conversation that look place at the interview, to the best of my recollection. if i am censured for having been too ingenuous in my communication, i trust it will be admitted, that as ingenuousness disclaims all connexion with guilt, it is indicative only of my innocence. if your lordships will be pleased to reflect on all that i have offered respecting de berenger, and to bear in mind the avowed intercourse which i had with two other defendants, respecting whose conduct i have been compelled to speak at last upon a supposition of their guilt, i am confident you will perceive how easily any man living so circumstanced might have been placed in the very situation. but waiving the supposition of de berenger acting under the direction of either of the other defendants, i do still contend, that any man who had stock concerns, and was slightly known to de berenger, ran the same risk with me, of being driven into the ruin, which undeservedly, as i am still willing to hope, has befallen the others. the artifices which have been used to excite so much prejudice against me, i unfeignedly despise, in spite of the injury they have done me. i know it must subside, and i look forward to justice being rendered my character sooner or later: it will come most speedily, as well as most gratefully, if i shall receive it at your lordship's hands. i am not unused to injury; of late i have known persecution: the indignity of compassion i am not yet able to bear. to escape what is vulgarly called punishment, would have been an easy thing; but i must have belied my feelings by acting as if i were conscious of dishonour. there are ways, even of removing beyond the reach of ignominy, but i cannot feel disgraced while i know that i am guiltless. under the influence of this sentiment, i persist in the defence of my character. i have often been in situations where i had an opportunity of showing it. this is the first time, thank god, that i was ever called upon to defend it. * * * * * the following affidavits, handed in by lord cochrane, were read. "in the king's bench. "the king _against_ charles random de berenger, & others. "sir thomas cochrane, commonly called lord cochrane, one of the above named defendants, maketh oath and saith, that the several facts and circumstances stated in his affidavit, sworn on the eleventh day of march last, before mr. graham, the magistrate, are true; and this deponent further saith, that in addition to the several facts and circumstances stated in his said affidavit, he deposeth as follows, (that is to say); that he had not directly nor indirectly any concern whatever in the formation, or any knowledge of the existence of an intention to form the plot charged in the indictment, or any other scheme or design for affecting the public funds. that the sale of the pretended omnium on the twenty-first day of february, was made in pursuance of orders given to his broker at the time of the purchase thereof, on or about the fourteenth of that month, to sell the same whenever a profit of one per cent. could be realized; and that those directions were given, and the sale thereof took place without any knowledge, information, hint or surmise on the part of this deponent, of any concern or attempt whatever to alter the price of the funds; and the said sale on the twenty-first took place entirely without this deponent's knowledge. that when this deponent returned home from mr. king's manufactory, on the twenty-first of february, which he did directly after the receipt of a note, he fully expected to have met an officer from abroad, with intelligence of his brother, who had by letter to this deponent received on the friday before, communicated his being confined to his bed, and severely afflicted by a dangerous illness, and about whom this deponent was extremely anxious; but this deponent found captain de berenger at his house, in a grey great coat, and a green jacket. that this deponent never saw the defendants, ralph sandom, alexander m'rae, john peter holloway, and henry lyte, or any or either of them, nor ever had any communication or correspondence with them, or any or either of them, directly or indirectly; that this deponent, in pursuance of directions from the admiralty, proceeded to chatham to join his majesty's ship "the tonnant," to which he had been appointed on the eighth day of february last; that the ship was then lying at chatham; that previous to the eighth day of february, this deponent applied to the admiralty for leave of absence, which was refused until this deponent had joined the said ship, and had removed her down to long reach; that this deponent in pursuance of those directions removed the said ship from chatham to long reach; and after that was done, viz. on saturday the twelfth day of the said month, this deponent wrote to the admiralty, to apply for leave of absence for a fortnight, for the purpose of lodging a specification for a patent, as had been previously communicated by this deponent to their lordships; that leave of absence was accordingly granted for fourteen days, commencing on the fourteenth of the said month; that this deponent was engaged in london respecting the said specification, till the twenty-eighth of the said month, when the said specification was completed; and this deponent left town about one o'clock on the morning of the first day of march, and arrived at chatham about day-light on the same morning; that on the eighth or ninth of the same month of march, this deponent received an intimation, that placards were affixed in several of the streets, stating that a pretended colonel du bourg had gone to this deponent's house in green-street; that he was on board the said ship at long reach, and in consequence went to admiral surrage, the port admiral at chatham, to obtain leave of absence, which was granted previous to the receipt of the leave forwarded by the lords commissioners of the admiralty; this deponent arrived in london on the tenth of that month, to the best of his belief; and that after his arrival, he himself, conscious of his own innocence, and fearing no consequences from a developement of every part of his own conduct, and desiring only to rescue his character from erroneous impressions made by misrepresentations in the public prints, he without any communication whatsoever with any other person, and without any assistance, on the impulse of the moment prepared the before-mentioned affidavit, which he swore before mr. graham, the magistrate, on the eleventh; that at the time he swore such affidavit, he had not seen or heard the contents of the report published by the committee of the stock exchange, except partial extracts in the newspapers; that when this deponent understood that a prosecution was to be instituted against him, he wrote to admiral fleming, in whose service isaac davis, formerly this deponent's servant, then was, under cover to admiral bickerton, at portsmouth, and that admiral bickerton returned the letter, saying, that admiral fleming had sailed for gibraltar; that this deponent sent his servants, thomas dewman, elizabeth busk, and mary turpin, on the trial of this indictment, to prove that an officer came to this deponent's house on the morning of the said twenty-first of february, and to prove the dress that he came in, but that the said thomas dewman only was called; and as this deponent has been informed, he was not interrogated as to the dress in which the said officer came to his house; and this deponent further saith, that had the said witnesses been examined, according to the directions of this deponent, and who were in attendance on the court for that express purpose, they would, as he verily believes, have removed every unfavourable conclusion respecting this deponent's conduct, drawn from the supposed dress in which the said de berenger appeared before this deponent on the twenty-first of february, and on which circumstance much stress was laid in the charge to the jury, the said de berenger's dress being exactly as stated in this deponent's former affidavit hereinbefore-mentioned; and this deponent solemnly and positively denies, that he ever saw the said de berenger in a scarlet uniform, decorated by medal, or other insignia, and he had not the least suspicion of the said de berenger being engaged in any plot respecting the funds, but merely believed he wished, for the reasons stated in this deponent's former affidavit, to go on board this deponent's ship, with a view to obtain some military appointment in america; and this deponent declined complying with his request to send him on board his ship, without permission or an order from the lords of the admiralty; and this deponent further saith, that he was in no degree intimate with the said de berenger; that he had no personal knowledge of his private or public character; that he never asked the said de berenger to his house, nor did he ever breakfast or dine with this deponent therein on any occasion whatsoever; and further, this deponent saith, that he hath been informed, and verily believes, that the jury who tried the said indictment, and the counsel for the defence, were so completely exhausted and worn out by extreme fatigue, owing to the court having continued the trial without intermission for many hours beyond that time which nature is capable of sustaining herself without reflection and repose, that justice could not be done to this deponent. _cochrane._" sworn in court the th june . "in the king's bench. "the king _against_ charles random de berenger, & others. "thomas dewman, servant to lord cochrane, maketh oath and saith,----" _lord ellenborough._ this was a person called as a witness on the trial; if the affidavit goes beyond what he then stated, or in contradiction to what he stated, it cannot be received. _lord cochrane._ would your lordship permit me to explain the reason why he was not interrogated? _mr. justice bayley._ it is a settled rule, not to allow the affidavits of persons who might have been called upon the trial, much less of persons who were called. _lord ellenborough._ and if any were not called, they were not called under the discretion of your lordship. it would be a very dangerous thing, if persons whose evidence may have been discreetly kept back, should afterwards be admitted to come forward as witnesses. _mr. dealtry._ the next is the affidavit of sarah busk. _lord cochrane._ my humble hope is, that you will be pleased to grant a new trial, in order that these persons may have the opportunity of being examined: they were not called from an error in the brief, which (so little was i conscious of any participation in the fraud) i had not even read. _mr. gurney._ my lord, the counsel for the defendant were not uninstructed, as to the evidence which these persons could give; because, annexed to the affidavit which your lordship has stated, of lord cochrane, were the affidavits of all the servants, of the one who is not now in england, as well as of the three who are in england. they are all printed together in mr. butt's pamphlet, which was produced at the trial. therefore the counsel for the defendant were informed of every circumstance, and they might, if they had thought it would serve their client, have called all those persons as witnesses. _mr. justice le blanc._ there is no rule better established, than that after trial we cannot receive the affidavits of persons who were called, or who might have been called as witnesses. whatever might be the reason for keeping back their testimony, that the court cannot hear. [_the following affidavit was read._] "in the king's bench. "the king _against_ charles random de berenger & others. "the honourable william erskine cochrane, major in the fifteenth regiment of dragoons, now residing in portman-square in the county of middlesex, on his oath saith, that he was seized with a violent and alarming illness on the first of january one thousand eight hundred and fourteen, at cambo in the south of france; and that this deponent remained in a state of dangerous illness until the eighteenth of the following month. that early in february last he wrote to his brother lord cochrane, to acquaint his lordship with this deponent's situation, as deponent had then very little hope of recovery, and telling him that he had received a notification that he would be ordered to england, where he should proceed, if ever able to undertake the journey. and this deponent further saith, that the annexed certificate was given to him for the purpose of being laid officially before a board of medical officers at saint jean de luz, by the surgeon of this deponent's regiment, and is in the said surgeon's hand-writing. _w. e. cochrane._" sworn in court, this th day of june . by the court. "statement of major the honourable william cochrane's complaint. monday, february , . "was seized with the usual symptoms of fever on the st of january, which was continued for the first three days; then the remittent character developed itself. the evening paroxism was severe every day, and he was all through much worse on the third day than on the two preceding days. the treatment consisted in keeping the bowels perfectly free and the skin moist, and this was generally obtained by calomel and antimonial powder combined, in the proportion of two grains, and three every third hour, and an occasional purge of neutral salts. when the bowels were well emptied, i frequently gave saline draughts, which kept the skin moist and favourable for the exhibition of bark, the use of which was commenced the th day. on the d he had a crisis, and went on very well till the st of february, when he suffered a relapse, attended with rather alarming symptoms. there was great determination to the head, the eyes were suffused, great drowsiness, and a tendency to comæ; however, these symptoms gave way in six hours, in which time he was actively purged, the skin was made moist, and a profuse perspiration kept up for twelve hours, which left him perfectly tranquil and free from fever. from this term i continued to give him small doses of calomel, till his mouth was very slightly affected. he continued free from fever from the morning of the d till the th; his appetite good, his strength increasing, and every sign of health. on that morning he had a second relapse, but by no means so violent, though more embarrassing; he has not been well since, and has suffered very much indeed. the treatment latterly has been attention to the state of his bowels and diet. he has not taken bark since his first relapse. i hope the change of air and objects will serve him. _tho. cartan_, surgeon, th hussars." _lord ellenborough._ this affidavit is not even material to shew, that lord cochrane was in possession of his brother's letter previous to the morning of the st of february, so as to account for a connexion existing in his mind between the note he on that morning received, and the state of his brother's health, which should induce him immediately on the receipt of it, to return home? _lord cochrane._ i was not present at the trial, or those witnesses would have been examined. _lord ellenborough._ but those witnesses would not have gone to this point, and your mind must have been drawn to it at the time you made your affidavit, when you came to mention your brother's illness? _lord cochrane._ my brother's affidavit states, that he wrote to me early in the month, and i received his letter on the friday previous to the fraud. _lord ellenborough._ that was capable of being most distinctly verified. _mr. justice bayley._ the original letter is not annexed to the affidavit? _lord cochrane._ it is not; i had no idea of bringing the letter of my brother before a court of justice. [_the following affidavit was read._] "in the king's bench. "the king _against_ charles random de berenger, & others. "charles random de berenger, the above-named defendant, (having been found guilty of certain counts, but acquitted of the two first contained in this indictment,) maketh oath and saith, that he, this deponent, has zealously and loyally served his majesty and this country as a volunteer, during a period of sixteen years, without ever receiving pay, remuneration, or reward of any kind, although by a most punctual and uninterrupted discharge of his various duties, his pecuniary interests and views were consequently greatly injured, but more especially during the time he acted as adjutant, being for a period of near seven years, when his time was daily occupied more or less by the duties of that situation; and instead of drawing permanent pay, as is the usual custom of volunteer adjutants, he even put himself to considerable annual expences, to further the views of that service. and this deponent further saith, that the testimonials now produced in court, as proofs of his energetic and loyal services, are of the proper hand-writing of the parties whose names are thereunto respectively subscribed. and this deponent further saith, that he has lost his paternal fortune, exceeding the sum of thirty-three thousand pounds, solely owing to his father's loyal adherence to the crown of great britain, during the american revolution; and that no indemnity of any kind has ever been given for such loss, either to his late father or to himself. that perfectly unprejudiced by such hard fate, this deponent constantly and without fee, or even condition for reward, has since, not only tendered his loyal assistance to this country to the utmost of his power, and in a variety of ways, but has actually given several important suggestions and communications, which although made use of by the offices of government, still continue unrewarded. and this deponent further saith, that he lately lost a considerable fortune from the failure of an expensive and spirited endeavour on his part, having the formation of a national fund for the succour of artists, and the relief of their widows and orphans, for its object, whereby he was ruined a second time, and deprived, in consequence, of his liberty: that although distressed himself, and having numerous debts on his books due to him from englishmen unable to pay, he has always been merciful to them. and this deponent further saith, that he has already suffered a painful imprisonment, ever since the eighth of april last, by which his means of defence were not only decidedly impeded, but his strength and health most materially injured; that in this particular, as also in the mode of seizing his papers and property, he has suffered considerable hardships, while his slender pecuniary resources, from the aforesaid causes, and by the heavy expences of his confinement and trial, are totally destroyed; and that on these accounts his sufferings have been greater than those of any of the other defendants. and this deponent also saith, that any further degradation must ruin his prospects in life for ever, and bring anguish and despair upon him, who has already suffered so severely from his attachment to this country; and he respectfully hopes, that his severe losses and ruined circumstances, his general exemplary conduct, his uninterrupted loyalty, and his many unrequited services, will have due weight with this honourable court, in mitigation of punishment; he also relies that considerations additionally stimulating to forgiveness, will animate his judges, when it is stated, that deponent to this moment has received no recompence whatever, for his many patriotic exertions and ruinous sacrifices; and above all, that in consequence of his not having succeeded in obtaining a respite of the judgment for a short time, he has been prevented from experiencing the benefit of important affidavits, which he anxiously expected from other persons. _charles random de berenger._" _mr. topping._ i was of counsel with mr. serjeant best on the trial; i am not furnished with any affidavit on the part of mr. butt. _mr. butt._ i came into court, my lord, expecting the privilege of asking for a new trial, upon certain facts which i have put down in my pocket-book. _lord ellenborough._ you are not in time to move for a new trial. _mr. butt._ i know i am not, my lord; i was merely going to explain---- _mr. justice le blanc._ if you appear by counsel, your counsel had better state what you have to suggest. _mr. topping._ i have no instructions on the subject. _mr. butt._ i hope you will forgive my importunity in begging for a few moments to address you, having never been before in a court of justice, either as plaintiff or defendant; that i trust will plead my apology. if you will hear me, i shall be much obliged to you. my lords; i have been tried for conspiring with other persons, to raise the price of the public government funds, and also for promoting assistance to those measures, by the changing of notes, and various other circumstances. i beg to assure your lordships, that i do not address you on the idea or wish of a mitigation of any punishment you may think proper to inflict upon me; it is merely to express to you, that my sole wish and desire is to claim the indulgence of the court, in permitting me to have a new and distinct trial, that i may clear my character from the cloud with which it is now depressed, and which had previously been without a blemish; as i am confident, if my case was separated from other persons in the indictment, it would be the means of my acquittal. it was my intention to have appeared in court some days since, to have made the same request which i now do of your lordships, had it not been for my counsel informing me, that i should have been committed directly i entered the court; and that the defendants should all appear before the court could grant my request. this i found impossible to accomplish; and i declare, that the defendants, sandom, lyte, holloway, and m'rae, are all perfectly unknown to me; that i never directly or indirectly had any knowledge or communication or ever saw them in my life, neither did i ever see mr. de berenger more than two or three times. i beg also to acquaint your lordships, that the bank notes which have been stated to have passed through my hands must, unavoidably so have done, as i permitted, without thinking it any crime, at the solicitation of my friends, that all drafts connected with the stock exchange business should be paid in my name, whether i was in london or not; and i did at any time change notes, or lend mr. johnstone money, as a temporary accommodation, when he wished it; and yet it is a fact, that i had never seen mr. johnstone till the d of january last. but it is impossible for me, and certainly a case of hardship, that i should be answerable for the manner in which those notes might be disposed of afterwards. there appears no one witness on the trial, that can give any extraordinary reason for my having paid the notes alluded to by mr. johnstone; for i might, hundreds of times, have paid notes to an equal amount to him, or to any other man. my own conscience clears me of the offence laid to my charge, and so far was i from avoiding investigation, that i courted it, and instructed my counsel not to take advantage of any flaw, should there appear one in the indictment, but to force the trial to issue. i can only, my lords, accuse myself of one fault, if it can be so called, that of being too generous and unguarded upon money affairs. i shall not intrude myself any further upon your lordship's time, only assuring you, that the magnitude of my concerns in the funds, upon which so much stress has been laid, was not, according to my calculation, any thing extraordinary, neither was the sum i held on the st february, an act of premeditation, my concerns being as extensive before that period as at that time, and my profit upon that day, which has been so much exaggerated, was only £. , , instead of £. , , as stated by the counsel for the prosecution. whatever your lordships decision may be respecting myself, i shall bow with submission, feeling conscious of my innocence of the charge upon which i have been found guilty. mr. park, my lord, i am of counsel for mr. de berenger, and it does not very often fall to my lot to be counsel for a defendant in the situation he is in. when we are so, we are always placed in a most painful situation; because it does not become the defendants themselves, much less does it become us, to offer any thing to your lordships that may go in contradiction to the verdict. undoubtedly, mr. de berenger is convicted, and he must abide the consequences of that conviction. his affidavit, i have seen only this morning; it seems to me to contain no exceptionable matter in it, which is not always the case; that certainly is a circumstance which one may fairly press upon the court in favour of a defendant. he states to your lordships what was to a certain degree confirmed by a noble lord upon the trial. if i recollect rightly, your lordship has reported, that lord yarmouth stated in evidence, that this gentleman had conducted himself as adjutant to the volunteer corps of which he was commander, in a most exemplary manner. that was a character in which he received no remuneration; and he states to your lordships also, that himself and his family were american loyalists, who suffered very considerably during the american war, in consequence of their attachment to this country; those are all circumstances which will meet with attention in your lordships minds. in addition to this he has stated, what the circumstances of the case alone would convince your lordships of without any affidavit, that being a defendant, under so expensive a prosecution, has occasioned him an enormous expence. that will be taken into consideration; and it will not be forgotten, although this gentleman cannot be said to have been imprisoned on this charge, it being of a nature to admit of bail, yet he has been upwards of two months in actual custody in the jail of newgate; that is a circumstance which does not apply to any other of the defendants, and the court will take it also into consideration in passing sentence. i am quite aware he was taken up under a warrant of the secretary of state, under the alien act; but his imprisonment had its origin in this charge, and to a certain degree it has deprived him of those advantages for his defence which the other defendants have enjoyed; i am not aware that i can better serve this gentleman, than by drawing your lordship's attention to the circumstances which are contained in this affidavit; and i trust i have not said any thing calculated to increase the severity of his punishment. _lord ellenborough._ lord yarmouth only speaks to the time during which he had known him to be acting as adjutant; he states that he had known him since the year . _mr. park._ i do not know that lord yarmouth's statement went beyond that, i thought he had added something of approbation; but i submit to your lordship, it is of itself sufficient proof of his good conduct, that he was so long continued in the situation. mr. richardson. my lord; i am also of counsel for this unfortunate foreigner. i have no observation to make, except merely to call your lordship's attention to this;--it is confirmed by lord yarmouth, that the defendant was a voluntary servant to the interests of this country, his services were therefore praise-worthy, and he appears by his affidavit to have been a material sufferer by the loyalty of his ancestors. these circumstances, i hope, will be taken into consideration by the court. your lordships also see, that he was a person in an extremely distressed situation, and at the time was suffering imprisonment, in consequence of the ruin of his fortunes, which he has mentioned. _lord. ellenborough._ is he in custody now under this charge? _mr. park._ he is in custody in newgate, my lord, under the alien act. _lord ellenborough._ there was no application made to put off the trial; a day was mentioned to the court, and the counsel on both sides, stated their wish that it should come on; no impediment therefore existed in the way of the defence. mr. serjeant pell. i appear, my lords, on behalf of the three last defendants, holloway, sandom, and lyte, men in a very different situation from the noble, but unfortunate person who first addressed your lordships, upon the present painful occasion. the office i had to perform for these three defendants appeared to me on the trial to be a very difficult one; because with regard to them there was a direct confession, that they were in part guilty of that which was imputed to them. holloway and sandom, voluntarily confessed themselves guilty of all that part of the transaction, which related to the northfleet affair. _mr. justice le blanc._ there was a confession by two of them. _mr. serjeant pell._ but though they were the only persons who made a direct confession, yet i, upon the trial as counsel for mr. sandom, had no scruple in saying, that mr. sandom concurred in the confession which they had made. in this situation, it not being possible for me to contend, that those for whom i appeared, were not guilty of that part of the transaction; the only point which i could enforce at the trial was, that they were unacquainted with the other part. it is not for me to contend now (against the verdict of the jury) that they were not also guilty of the other part; though, if i might be permitted to state my own feelings, i cannot but think there was a considerable defect of proof on that part of the case. the only circumstance that connected the one transaction with the other, independently of their taking place at the same period of time--and we must be aware that history furnishes many examples of conspiracies, having the same object, formed at the same time, yet totally unconnected with each other--the only link that connected the first of these transactions with the last, was the letter of mr. cochrane johnstone, in which he mentions m'rae as a person, who, for £. , , was willing to explain the whole of the transaction of the st february. unquestionably that letter was no evidence against mr. holloway, mr. sandom, and mr. lyte. there was but one other circumstance appearing on the trial that connected them together; it was, that the chaise which took mr. de berenger, went to the same place where the chaise went which carried the three others. but it appeared upon the evidence, with respect to that part of the case, that mr. de berenger went to the marsh-gate at lambeth, not in consequence of design, but of an intimation which he received from the driver who drove the last stage, that there was no hackney-coach to be procured at the first place where they would stop; in consequence of which, mr. de berenger directed the man to drive him to another. i am not disposed to-day to go into that part of the case, and to argue the matter as i did before the jury. that there was evidence on which the verdict of the jury may be supported, i cannot for a moment dispute; but i am sure your lordships will excuse me for just begging your attention to that part of the case, because, i think, when compared and considered, together with what mr. holloway did when he made the communication to the stock-exchange, it does furnish an additional ground, which may fairly be urged in mitigation of punishment. let us attend to the circumstances under which mr. holloway made this confession. m'rae, of whom i know nothing, is absent, and i have no means of tracing who he is; but he, finding there was a strong disposition on the part of the stock exchange, upon any terms to obtain evidence of the transaction of this day, hastens to mr. cochrane johnstone, and then this extravagant offer is made by mr. johnstone on his behalf, to communicate all the information he is possessed of for the sum of £. , . this reaches the ears of mr. holloway. mr. holloway, knowing he had been guilty of acts on that day, which certainly would subject him, if discovered, to a criminal prosecution, but having reason to believe that m'rae knew nothing of the transaction in which de berenger acted, with a view to save the gentlemen of the stock exchange from paying money for a communication which would be of no value, came forward and made the confession, which appears upon your lordship's notes. were it not for that confession voluntarily made by mr. holloway, there is no evidence against him, to shew that he was guilty of any part of the charge; nor any evidence against lyte, to shew that he was guilty; but he was present when holloway made the confession, and permitted him to make it. therefore the whole evidence against them is their own confession, made with a view to save the gentlemen of the stock exchange a useless loss of money. i think i may be permitted to say, particularly as it regards mr. holloway and mr. lyte, that they stand in a situation which at least entitles them to the consideration of your lordships. i will not presume to say, the confession of mr. holloway and mr. lyte was made under any promise from the gentlemen of the stock exchange that it should not be used against them; but i think i may be permitted to suggest, that could they have supposed, the only evidence to be used against them would be their own confession, they would rather have hesitated about making a confession which alone places them this day before your lordships. it must likewise be taken as part of that confession, that holloway and lyte denied any concurrence with the noble lord and the other defendants; and i think i may press upon your lordships attention, in confirmation of this, what lord cochrane has himself stated, that he had no knowledge of them. my lords, it is true these persons have been guilty of a great misdemeanor, and it is not for me to say a word in their favour, in the way of palliating the immorality of the act. all i could submit to the jury was, that there was not evidence to connect them, with the other part of transaction; all i can now submit to your lordships, is that they have done all they could do, after having been led into the commission of so scandalous and mischievous an offence, to save the prosecutors further loss and trouble. i have not troubled the court with affidavits to character, i am well aware that such a transaction as this must stand by itself, i pursue the same line of conduct which i did at the trial; i propose not to offer any thing in arrest of judgment, i produce no affidavits in mitigation of punishment; but i do submit to your lordships upon the whole of the case, as it respects these three defendants, that they do stand in a different situation from the other defendants; and though it is not to be forgotten that they were parties in a most scandalous transaction, yet that their ready confession does entitle them to as much consideration, as your lordships can give in such a case. mr. c. f. williams. my lord, i am also counsel for these three defendants; the grounds of indulgence have been so fully gone over by mr. serj. pell, that i think it unnecessary to make any observations. mr. denman. my lord, i am with the two learned gentlemen who have preceded me; and i would merely observe, that the affidavits which we might have been expected to offer upon this occasion, in support of the line of defence which we pursued, and which the learned serjeant has stated, could not properly be addressed to the court, because they must have gone in contravention to the verdict of the jury. at the same time i may be permitted to say, it is extremely singular, that in the two plans to affect this mischief, in each of which so many persons were concerned, and where so much assiduity has been employed, no one circumstance of connection between them has been discovered but that which was stated by the learned serjeant. what m'rae might communicate was no evidence against these defendants; no doubt mr. cochrane johnstone gave his sanction to that communication, by offering to contribute to the reward for which m'rae stipulated; but mr. johnstone's acts are no evidence against these defendants. it is most unfortunate for them, that m'rae, who appears to have been connected with mr. johnstone in one part of the affair, has appeared to be connected with them in the other part. it will perhaps occur to your lordships to enquire why i state these things, seeing there is an admission of something criminal. i state them, because i think they do afford an argument in mitigation of punishment; because i think they will lead to the conclusion in your lordships minds, that had these defendants been aware of the whole extent of mischief which was to be carried into effect, they probably would not have joined in it. your lordship put it to the jury, at the trial, that it was not necessary all the actors in the drama should know the part assigned to each,--that it was enough they had each contributed to the general object. _lord ellenborough._ that they were parties to the general object, and co-operating to effect it. _mr. denman._ but your lordship particularly stated, it was not necessary that the jury should arrive at the precise degree of participation and extent of criminality. i humbly conceive, the extent of criminality, as affecting these defendants, is, in comparison with the others, very small; and i trust your lordships, considering their degree of guilt, will proportionably moderate the degree of their punishment. in the case of conspiracy, the law itself inflicts a most severe and heavy judgment; and in pronouncing that sentence which must come from your lordship's lips, i have no doubt, the considerations which attach themselves to it, will not be overlooked. mr. gurney. my lord; my learned friend mr. serjeant pell has alluded to the different situations of the several defendants who now stand upon the floor for your lordships judgment. it is, my lords, a lamentable spectacle, but it will not, i trust, be an unprofitable lesson to mankind, that conspiracy, like "misery, acquaints a man with strange bedfellows." the conspiracy of the st february was, for all the defendants to act in concert, each man to perform his part toward the accomplishment of their common purpose;--one to travel from dover, others to travel from northfleet, and others to be on the spot at the stock exchange, to avail themselves of the rise in the funds produced by these operations. but the conspiracy on the day of trial, and the conspiracy of this day, is, for each, to be distinct and separate, and, as much as possible, unknown to the others. i am willing to concede to my learned friends who have last addressed your lordships, that some of these defendants do stand in a very different situation from the others. of holloway and lyte, it is fairly to be observed, that by their confession they did manifest a degree of contrition; it must, however, be recollected respecting holloway, that the purpose which he conceived, was a fraud for his own personal advantage: it is in evidence that his fraud took effect; and he has not ventured to state to your lordships, by affidavit, to what extent that fraud was successful and profitable. with regard to sandom, the other defendant of this class, his part in this transaction was a very prominent and important part; and he was proved to be guilty by the evidence of others, not by his own;--he cannot plead the merit of a confession. it may, however, fairly be urged for all these three defendants, sandom, holloway and lyte, that they did not aggravate their case at the trial, in the manner in which the other defendants aggravated theirs. as to the defendant de berenger, it appears that he was the hired and paid agent of lord cochrane, mr. cochrane johnstone, and mr. butt; and having received his wages, he was attempting clandestinely to quit the country: if he had effected that purpose, he would have escaped punishment himself, and would probably have defeated justice with regard to the others. but, my lords, his case has been greatly aggravated, as indeed have the cases of lord cochrane and mr. cochrane johnstone, by attempts to defeat public justice, as absurd as they were wicked; for all the swearing before the trial, all the swearing at the trial, and all the swearing of to-day, has proceeded on the presumption, that if men will have the hardihood to swear, there will be found those who will have the credulity to believe. your lordship has reported to the court to-day, the evidence that was given on the part of mr. cochrane johnstone and mr. de berenger, the letters which were stated by mr. tahourdin to have been written by mr. cochrane johnstone and mr. de berenger, on the d february, the day after this fraud had been perpetrated. whether mr. tahourdin deposed to that which was correctly true, or not, appears to me to make no difference. if the letters were written at a period subsequent to their dates, they were fabricated for the purpose of constituting an artificial defence. if they were written at the time they bear date, then they were equally fabricated for an artificial defence; and at the very moment of the commission of the crime, the parties were providing the means of a false defence, in case they should be detected. there was a flat contradiction between mr. tahourdin and the letter which mr. tahourdin produced; whether the evidence of the witness were true, or the statement in the letter were true, matters not; the contradiction, independent of all other circumstances, shews that the whole of this transaction was one premeditated scheme of fraud. there was still more evidence respecting de berenger; a number of witnesses were called to swear, that at the time when he was proved to have been at dover, he was actually in london, or at least in london so short a time before, that he could not by possibility have been at dover. the persons who formed this scheme totally forgot the sort of case they had to meet: they were endeavouring to meet a case of recognition of the human countenance, by witnesses who might be mistaken in that recognition; and they forgot, that to a recognition of the countenance, a recognition however which surpassed every thing that ever fell under my observation, though put to the severest test to which such testimony was ever exposed--de berenger, seated among a number of persons, nothing distinguishing him, nothing to attract the attention of the witnesses, yet witness after witness, with but a single exception, on looking round the court, recognized his person the moment he cast his eyes upon his countenance.--i say, my lord, that they who contrived this false and perjured defence, forgot that, in addition to this, there was the delivery of de berenger from hand to hand, from dover into the house of lord cochrane; and into the house of lord cochrane it was never pretended that any other person but de berenger entered. then, my lords, we have the affidavit of lord cochrane, to which he has added the affidavit of to-day, respecting the dress which de berenger wore upon that occasion. it is singular that a servant of lord cochrane's should have been called upon the trial, examined upon other points to the confirmation of his master's affidavit, and that my learned friends, who were of counsel for lord cochrane, whose ability, whose discretion, and whose zeal, no man who knows them can question, did not venture to put to that servant a question as to the colour of de berenger's coat; and that they did not venture to call the two other servants, one of whom at least was in attendance, and if the other had been wanted, it would not have been difficult for lord cochrane to have detained him in england, that he too might have been examined. no man can doubt that the reason why my friends abstained from asking that question, and going into that examination, was, that after the evidence which had been given by all the witnesses for the prosecution, as to his dress, continued up to the last moment by the driver of the hackney-coach, who swore to de berenger's entering the house in a _scarlet_ coat; if all the servants in lord cochrane's house had been called to swear that the colour of de berenger's coat was _green_, no man alive could have believed them. your lordships have before you the whole extent of this gigantic conspiracy and fraud; you have seen the stock account of these persons, and you find that on the morning of this day lord cochrane, mr. cochrane johnstone, and mr. butt, were possessed of as much in consols and omnium, as, reduced to consols alone, would amount to £. , , ; on which sum, the fluctuation of only one-eighth per cent. would produce a loss or gain of £. , ; and although these defendants have not profited to the extent they anticipated, first, because the telegraph did not work,--no thanks to them that it did not;--and next, because the fruit of their fraud was intercepted,--the stolen goods were stopped in transitu,--still it appears from the evidence of mr. baily, that they have been materially enriched by their fraud, for they were enabled to get rid of this immense amount of consols and omnium, without loss, which, but for the operation of this fraud, they could not have done. at the trial, mr. serjeant best pressed very eloquently upon your lordship and the jury, the former services of lord cochrane: i must observe, my lord, that those services had neither been forgotten nor unrewarded by his sovereign or his country:--by his sovereign, he had been raised to a high rank in his profession, and was in the path to the highest; he had also been invested with a most honourable personal distinction, which adds lustre even to nobility itself; which, at the same time that it was a reward for the past, ought to have been an incentive for the future:--he had been raised by a grateful country to the proud and enviable station of representative in parliament for the city in which your lordships are now sitting; which, at the same time that it imposed on him the duty of watching, and if necessary, of animadverting on the conduct of others, especially bound him to guard the purity of his own. for all this, what return has he made?--he has engaged in a conspiracy to perpetrate a fraud, by producing an undue effect on the public funds of the country, of which funds he was an appointed guardian, and to perpetrate that fraud by falsehood: he attempted to palm that falsehood upon that very board of government, under the orders of which he was then fitting out, on an important public service; and still more, as if to dishonour the profession of which he was a member, he attempted to make a brother officer the organ of that falsehood. this offence, my lord, does not proceed from the infirmity of a noble mind, from the impetuosity of youthful passion, from the excess of any generous feeling;--it is cold, calculating fraud, scarcely capable of aggravation; but, if it be capable of aggravation, it has received this great aggravation, that when threatened with detection, he endeavoured to avert it by the deliberate commission of a crime which, i repeat, has all the moral turpitude of perjury, without its legal responsibility. i have to add one observation only, which applies equally to lord cochrane and mr. butt, that they stand before your lordship, though convicted, unrepenting. the prosecutors in this case have, through many difficulties, conducted this prosecution to its termination: they have sought an honourable end by honourable means: they have sought for justice, and justice only; and to your lordships justice they commit these defendants. _lord ellenborough._ let all the defendants stand committed, and be brought up to-morrow morning to receive the judgment of the court. court of king's bench. _tuesday, june , ._ _charles random de berenger, lord cochrane, richard gathorne butt, ralph sandom, john peter holloway, and henry lyte were brought up pursuant to the order of the court to receive judgment._ mr. justice le blanc. the six defendants, whose names have been now called, are to receive the judgment of the court, in consequence of a conviction upon an indictment for a conspiracy; that indictment, and the evidence which had been given upon the trial, on which trial the jury pronounced the several defendants guilty, was more particularly stated to the court yesterday, in the course of the discussion which took place. the sum of the offence charged in the indictment was, that these six defendants, together with two other persons, who do not now appear to abide the judgment of the law, had conspired together, by spreading false rumours and reports in different places, to occasion a rise in the price of the public funds of this country, on a particular day, and thereby to injure all those subjects who might purchase stock on that particular day; that was the sum of the charge contained in the several counts of the indictment on which the defendants were found guilty. i will shortly advert to the circumstances of the case as they appeared in evidence. from that evidence it appeared, that some of the defendants had been, for a short time previous to the time when this conspiracy was put into execution, (namely the st of february,) largely speculating in the public funds of the country, and that at that time three of the defendants who now appear before the court, together with one of the defendants who does not appear, were either holders of stock, or persons who had contracted for the purchase of stock, to a very considerable amount. it appears, that on the th of february, which was on a saturday, a person, not expressly spoken to by the witness, had purchased of a military accoutrement-maker in this town the dress, or at least part of the dress, and accoutrements, of a foreign officer, stating at that time, that it was designed for a person who was to appear in the character of a foreign officer, and that on the same day another person who was concerned in another part of the plot, had produced a small parcel at home which had been given to his wife, and the next morning (sunday) had brought home two coats and two hats, evidently intended to fit out two persons with the appearance of foreign officers. those are the first circumstances that appear previous to the day when this plan was to be put in execution. the next period to be adverted to was the morning of monday, the st of february, and on that morning, about a quarter after one o'clock in the morning, one of the defendants, charles random de berenger, makes his appearance at the door of the ship inn at dover, wearing the dress of a foreign officer, as described by four witnesses, who saw him at dover with the scarlet uniform of a military officer under a grey great coat, and a military cap, the cap worn by military officers, applying to be furnished immediately with a chaise and four to proceed on his journey to town, holding himself out as a person who had just landed from a vessel come from the coast of france, and bringing very important intelligence of the success of engagements in that country, in which the ruler of france had been defeated, with other circumstances not particularly necessary to be adverted to, and that the consequences would be in a very short time a peace between that country and this. he is expressly recognized and pointed out as being one of the defendants, charles random de berenger, by four different persons who saw him at that time in the morning at the ship inn, where he continued for some time, while horses were preparing, having called for pen, ink and paper, to write a letter, as he professed, to be sent off to admiral foley, the admiral commanding the ships stationed in the downs, and while there actually dispatching a messenger with such letter to admiral foley, which is proved to be afterwards received by the admiral, affecting to communicate this intelligence, and signing this by the affected name of de bourg, as aid-de-camp, to what appears to be intended for lord cathcart. from thence he is traced distinctly through the various stages where he changed horses, at canterbury, sittingbourn and rochester, where he stopped and took some refreshment, and had some conversation with the landlord of the crown inn, who speaks to his dress at the time of the communication which he there made, similar to that which i have adverted to as having been made upon his first application for a chaise and horses at dover. from thence he proceeds to dartford, and from dartford in like manner, the last stage, into london. the post-boy who drove him the last stage into town, besides speaking to his person, and all of them having picked out and fixed upon charles random de berenger, whom they afterwards saw in court, as the person who had so travelled from dover to london, having had opportunities, during the last stage, of seeing him while he was out of the carriage and walking up a hill, and while he conversed with them directing them to the place to which he should be driven. he inquired where he could first be set down, and could meet with a hackney coach; one place proposed by the postboy did not meet his approbation, he stating that it was attended with too much publicity, and he then directed himself to be driven to lambeth where a hackney coach might be procured, and at the marsh-gate turnpike at lambeth he was ultimately set down, and stepped from the post-chaise into a hackney coach, and at that period he is spoken to positively, not only by the postboy who had driven him to that spot, but by the waterman who opened the door and put down the step of the hackney coach; he swears distinctly to his person and to his dress, that he had then a scarlet coat under a grey great-coat, with a military cap. from thence he directs himself to be driven to grosvenor-square. those are the orders given to the coachman when he gets into the coach, and then he directs the coachman to a particular house and number in green-street, which was the house of one of the other defendants, lord cochrane, and into which house the coachman proves his having seen him enter in that dress first described by the witnesses at dover, and confirmed by all the witnesses on his passage during his journey, namely, a red uniform coat under a grey great-coat. so much for that part of the transaction which relates to the spreading of false rumours and reports respecting what had happened in france, and the prospect of peace in the way from dover to the place where he was last set down, the house of lord cochrane in green-street on that same morning. the other part of the plot or conspiracy was put in execution at somewhat a later date, by the efforts of some of the other defendants, namely, holloway, m'rae, sandom, and lyte, on that same monday morning. the innkeeper at dartford receives a note from sandom, ordering a chaise to be sent to northfleet, at a particular hour, to bring persons to dartford, and to have four horses ready to convey them to london. accordingly three persons, two of them, i think, described as wearing a military dress, and white cockades in their hats, come in that chaise to dartford, from whence, with another chaise and four horses, the horses ornamented with laurel, and the men inside with white cockades in their hats, they drive at a quick pace to london, through some of the principal streets of london, over blackfriars bridge, and there directing to be set down at the same place, the marsh-gate at lambeth, they get into a hackney coach, and no more is heard of them. this seems to have been a counterpart--another branch of the plot, which was put into execution about two hours after the first chaise had arrived with the defendant de berenger, and in that these persons are proved to have been concerned whom i have stated. immediately upon the arrival of de berenger at the house of lord cochrane in green-street, dressed as i have described, in the dress in which he was first observed at dover, he appears to have dispatched a note to lord cochrane, who was not then at home, and that note is delivered to my lord cochrane at a place somewhere near snowhill, where lord cochrane was at the time. what the contents of that note were, as the note has not itself been produced, we have no evidence. upon that my lord cochrane immediately returns home in a coach. there is no doubt but the defendant de berenger was then at the house of my lord cochrane, and there, before he leaves the house, with the privity and in the presence of my lord cochrane, he changes the uniform which he wore at the time, and in which he is proved to have entered clothed, and puts on a black coat of lord cochrane's; he exchanges his military cap for a round hat of lord cochrane's likewise, in the house, and then he gets into the hackney coach which had brought lord cochrane, and goes away in that dress, and in that coach, and on that same day, which is monday the st of february, the whole of this property in the funds, or these contracts for stock in the funds (of which it is not now necessary to state the particular sums) which was held by lord cochrane, by mr. cochrane johnstone, by mr. butt, and by mr. holloway, is sold by those persons at an advance which advance had been occasioned by that which had taken place in the course of the early part of that day. the additional circumstances which are proved in evidence, and which i will only now shortly advert to, are those stated by the broker fearn, who had been the purchaser and the seller of a considerable part of this stock for particularly three of the persons, lord cochrane, mr. cochrane johnstone, and mr. butt; he was introduced by mr. butt to my lord cochrane and mr. cochrane johnstone, and had managed, or appears to have had considerable hand in managing, these speculations in the funds. in addition to that, it appears, that afterwards, i think, on the th of february, de berenger disappears, and is some short time afterwards, the particular day was not, i believe, mentioned in evidence, apprehended, passing under a feigned name, at a distant part of the country, with considerable property at that time in his possession, having been before, up to the st of february, living as an insolvent within the rules of the king's bench prison. the question which is next material to be adverted to is, how far any of these circumstances implicate the defendants who are found guilty on this record. i have stated the circumstances with respect to the minor actors in this conspiracy. de berenger, who was the actor and the propagator of the false rumours from dover to london, and the other persons who were the propagators of these false rumours from northfleet to london. it is singular that de berenger should instantly drive, in the dress in which he travelled from dover to london, to the house of my lord cochrane; should instantly send and have an interview with my lord cochrane; and that in the presence and with the knowledge of my lord cochrane, before he left his house, he should change that dress in which he had arrived, and should go away in a dress of my lord cochrane's: those are things which could not happen by accident; and the court see that they have not been accounted for in any satisfactory manner; and they certainly were not accounted for in a satisfactory manner to the minds of the jury, who have drawn the conclusion of guilt, by any explanation which was then given, either by word or upon oath. the manner in which it is attempted to be accounted for is, that de berenger, who was but slightly known to my lord cochrane, had come at that time to him upon some other business; that as to the note which he sent to my lord cochrane, and which has not been produced, my lord cochrane at the time did not clearly perceive by whom it was signed, or from whom it came, and that he went home immediately upon receiving it, in expectation that it might be from an officer coming from abroad, bringing him an account of the health of a brother, who at that time, or shortly before, had been labouring under a dangerous illness; that note which was sent has not been produced, and no satisfactory evidence has been stated, either before the jury or since, upon the application which was made to the court for a new trial, to fix precisely the time when any account had been received by my lord cochrane of the illness of this brother, or holding out to him any expectation at what time, and by what means, he was likely to hear further accounts of him. if any such letter had been received, if it had come by a private hand, the person who brought it might have been called to show the information which he had received; if it had been brought by a ship, or by post, the mark on the direction and the envelope of that letter, would have given some explanation of it, but no such explanation has been held out either to the jury at the trial, or to the court since, on the opportunity which was afforded my lord cochrane yesterday of stating the grounds upon which he wished to have a new trial. there is another circumstance in evidence which i have not yet adverted to, and it is this, it was proved in evidence, and i will not go through the particulars, that shortly before this st of february, namely, on the th of february, a broker, of the name of smallbone, had drawn a bill on jones, loyd, and co. in london, for the sum of _l._ _s._ _d._ payable to a number, upon which nothing arises, or to bearer; but that this bill, or check, was given to lord cochrane, so that it was in his hands; the money received for this check at the bankers, was proved in evidence to consist of particular bank notes; those bank notes were afterwards changed, and appear to have been changed industriously for other notes, by a person employed, i think by the defendant butt, and part of the produce of this check had been employed by lord cochrane himself in the payment of a bill of a coal merchant of his, and a number of the small notes that had been produced by the change of some of the larger notes for which the check was changed, were traced to the hands of de berenger himself; and many of them actually found in his possession, and in his trunk at the time he was shortly afterwards apprehended in a distant part of this kingdom; now this is a coincidence of circumstances which requires very satisfactorily to be accounted for, in order to raise a doubt in the mind of any one that there was a connection with respect to this transaction, and an intimate connection between the parties charged upon this indictment, i mean particularly the defendant, my lord cochrane, the defendant butt, and the defendant de berenger. where we find that it is to the house of my lord cochrane that he comes immediately after having acted this part in spreading this rumour between dover and london, and where the very notes that are found upon the person of de berenger, before in insolvent circumstances, are part of the produce of that very draft which had actually been traced to the hand of lord cochrane, and by the intervention of another of the defendants, butt, had likewise, i think, been through the hands of mr. cochrane johnstone paid to this very de berenger, and found in his possession when he had absconded, and was going by another name in a distant part of this country. with respect to the other part of the transaction, when we find who were the persons who benefited by this plan, which has been so put into execution; that the persons who were connected together in speculating in the funds up to the very period of the st, and were then the holders of very considerable sums, or contracts for those sums, down to the morning of the st, got rid of all of them in the course of the st, and when those circumstances of connection which i have adverted to have been so clearly made out, and no satisfactory account given, nor any reason given to expect that a satisfactory account would be given, if a further opportunity of investigating it should have been afforded, how can the court come to any other conclusion if they have to exercise their judgment upon the fact, but the conclusion to which the jury have come, namely, that the defendants are guilty; that it was a conspiracy ingeniously and cunningly devised, extensive in its operation, most mischievous in its effect, and contrived for the wicked and the fraudulent purpose of enriching some few individuals at the expense of others, who might be induced to sell, and to buy property on that day, or who might be in a situation to be obliged to do it, which was the case with the suitors of the court of chancery. the offence of conspiracy is in itself always viewed in the eye of the law as a heinous offence; and where a number of persons connect themselves together in order to carry into execution a plan which one alone cannot carry into execution, and where that is done with the evident intention of fraud, to put money into the pockets of certain persons, and by that means to defraud others, such an offence is and always has been considered in the eye of the law as an infamous offence, and calling upon the court who are to administer the justice of the country for a punishment, as far as they can inflict it, proportionate to the infamy of the crime. it is with pain that the court in passing sentence upon the defendants have to advert to those circumstances, which, applying to particular persons, appear to aggravate the guilt of the offence of which they have been convicted; it is painful for the court to observe, that among those who stand for judgment there should be any person whose situation from rank, connections, education, and every thing held honourable among mankind, ought to have felt himself so far above being connected with persons of the description with whom he has been connected, and mixing in traffic with which he has been mixed, which independently of the crime of which he has been convicted is disgraceful and disreputable to any man, i mean gambling in the funds to the amount and to the extent to which it is proved; it is painful for the court to have to animadvert upon such an offence in such a subject; and more painful to feel, that in the exercise of their duty they are bound to say, that the greater opportunity which a defendant had of knowing his duty, and the higher he felt in rank and in situation, and the less temptation he ought to have felt to have offended the laws of his country, in this respect the heavier falls the weight of guilt upon him. another observation which one cannot fail to make in the present instance, is, that in the course of this inquiry, certainly with respect to the defence made by the defendant de berenger, one cannot find any circumstances of which the court can lay hold, as a ground upon which they can mitigate the offence which the law calls for to be inflicted upon that defendant, because after a weight of evidence not depending upon the testimony of two, three, four or six persons, as to the identity of the man and his clothes, an attempt was made at the trial to delude the jury and the court, by inducing them to believe that he was at another place at the time, and that it was not de berenger who had appeared at dover; that it was not de berenger who had travelled from dover to london in the way described; and that it was not de berenger who had been landed at last in the house of lord cochrane. though the court could not consistently with its rules hear the application for a new trial made by my lord cochrane within the first four days of the term, yet still it was willing to afford the opportunity at any time to state circumstances which might operate upon the mind of the court to show that the verdict had been improperly come to, and that the evidence did not justify it: but what was the attempt upon the part of that defendant, my lord cochrane, to show that he ought to have had a new trial?--that certain witnesses who were present at the time of the trial had not been examined; and that some of those who had been examined had not been examined to facts which it was wished they should be examined to; and what were those facts? why they went to show that at the time de berenger was at the house of my lord cochrane he appeared, not in a red uniform, as was described by so many witnesses, and among others, the person who landed him at that house, but that he had on the green uniform, in which, from the situation he had been in, in a rifle volunteer corps he had been in the habit of appearing. it was probably a very prudent exercise of discretion in those who had the conduct of the case of that defendant at the trial, not to attempt to call servants at the house for the purpose of disproving a fact which had been proved by so many witnesses; and it is impossible to conceive that any change of dress could have taken place during that short interval, from the time at which he had got out of the coach, to the period when he had appeared before lord cochrane; or what could be the motive for changing his dress, if he then had on the uniform of any corps of volunteers in this town. these are the observations which naturally present themselves as arising out of the detail of the evidence which has been read. it cannot be necessary to expatiate at all upon the nature of the offence. it is a conspiracy of the greatest magnitude, and of the most prejudicial effect to the community; it is conceived in mischief, and a great deal of deliberation practised previously to its being put into execution. in this respect an offence of this description differs from most of the offences which come under the cognizance of a court of criminal jurisdiction. in many cases offenders have been led to transgress the law by a suggestion of the moment; by a temptation, which, as it has been urged sometimes at the bar, human nature could not resist; but in the present instance it has been deliberately undertaken; great contrivance, and great previous consideration, have been used for the purpose of laying the plan and procuring the actors who were to bear their different parts of it; and the whole object of it founded in avarice on the part of some, and the hope of gain for acting that part which the others took in this transaction, not for their own immediate emolument, except so far as they were to receive the wages of their iniquity. the court has deliberated upon the case, and the court cannot, in this instance, feel itself justified in measuring out justice to one by a different measure from that in which justice would be measured out to others; the sentence therefore of the court upon you, the several defendants now upon the floor, is, that you, sir thomas cochrane, otherwise called lord cochrane, and you richard gathorne butt, do severally pay to the king a fine of one thousand pounds each; that you, john peter holloway, the third person who was to be benefited by this conspiracy, do pay to the king a fine of five hundred pounds; that all you the six several defendants, charles random de berenger, sir thomas cochrane, commonly called lord cochrane, richard gathorne butt, ralph sandom, john peter holloway, and henry lyte, be severally imprisoned in the custody of the marshal of the marshalsea of our lord the king for twelve calendar months; and that during that period you, charles random be berenger, you, sir thomas cochrane, otherwise called lord cochrane, and you, richard gathorne butt, be severally set in and upon the pillory, opposite the royal exchange in the city of london, for one hour, between the hours of twelve at noon and two in the afternoon; and that you be now severally committed to the custody of the marshal of the marshalsea, in execution of this sentence, and be further imprisoned until your several fines be paid. table of contents. page. the indictment the counsel for the crown and for the defendants the jury mr. gurney's speech in opening the case evidence for the prosecution john marsh's examination thomas worthington gourley's examination eliott edis's examination mr. william st. john's examination william ions's examination admiral thomas foley's examination mr. germain lavie's examination letter signed r. du bourg, addressed to admiral foley, dated deal, february , thomas dennis's examination edward broad's examination michael finnis's examination mr. william wright's examination james overy's examination william tozer's examination thomas shilling's examination william bartholemew's examination richard barwick's examination william crane's examination george odell's examination mr. francis baily's examination mr. robert watson wade's examination simeon kensington solomon's examination abigail davidson's examination mr. germain lavie's further examination abigail davidson's further examination launcelot davidson's examination thomas vinn's examination letter signed alexr m'rae, addressed to mr. vinn, dated february sarah alexander's examination mr. philip foxall's examination letter signed r. sandom, addressed mr. foxall, dated monday morning foxall baldry's examination mr. francis baily's further examination mr. joseph fearn's examination mr. robert hichen's examination mr. william smallbone's examination mr. malcolm richardson's examination mr. francis baily's examination general statement of omnium and consols accounts of a. c. johnstone, lord cochrane, and r. g. butt _to be placed opposite_ mr. james wetenall's examination mr. charles addis's examination letter signed a. cochrane johnstone, addressed "mr. addis" mr. james pilliner's examination mr. james steers's examination mr. john wright's examination mr. malcolm richardson's further examination affidavit made by lord cochrane, dated march mr. james le marchant's examination the hon. alexander murray's examination william carling's examination mr. barnard broochooft's examination mr. joseph wood's examination extract from de berenger's memorandum-book mr. joseph fearn's further examination mr. joseph brumfield's examination mr. william smallbone's further examination check on messrs. jones, loyd & co. dated feb. edward wharmby's examination benjamin lance's examination mr. joseph fearn's further examination letter signed a. cochrane johnstone, addressed to the chairman of the committee of the stock exchange, dated april letter signed a. m'rae, addressed to the hon. cochrane johnstone, dated april letter signed a. cochrane johnstone, addressed to mr. charles laurence, dated april letter from the same to the same, dated april edward wharmby's further examination mr. thomas parker's examination benjamin lance's further examination john bilson's examination hilary miller's examination thomas christmas's examination mr. joseph fearn's further examination john bilson and thomas northover's examination mr. joseph fearn's further examination mr. bishop bramley's examination john bilson and thomas northover's further examination benjamin lance's further examination john isherwood's examination mr. john seeks's examination mr. germain lavie's further examination benjamin bray's examination mr. pattesall's examination mr. serjeant best's speech mr. park's speech mr. serjeant pell's speech _thursday, june ._ evidence for the defendants letter signed js. le marchant, addressed to lord cochrane, dated april letter from the same to the same, dated april letter signed cochrane, addressed col. le marchant, dated th april letter signed js. le marchant, addressed to lord cochrane, dated th april james le marchant's statement of conversation with r. de berenger lord viscount melville's examination colonel torrens's examination henry goulburn, esq. m. p. examination william r. w. king's examination mr. bowering's examination thomas dewman's examination mr. gabriel tahourdin's examination letter signed a. cochrane johnstone, addressed to mr. tahourdin, dated february letter signed c. r. de berenger, addressed to the honourable cochrane johnstone, dated february letter signed gabriel tahourdin, dated february receipt for £. . signed c. r. de berenger, dated september receipt for £. . signed c. r. de berenger, dated february, promissory note for £. . signed c. r. de berenger, dated february general campbell's examination the earl of yarmouth's examination captain sir john poo beresford's examination james stokes's examination william smith's examination ann smith's examination john m'guire's examination mr. thomas hopper's examination ---- m'guire's examination henry doyle tragear's examination mrs. tragear's examination isaac donithorne's examination mr. gurney's reply lord ellenborough's summing up the verdict _tuesday, june ._ proceedings on lord cochrane's application for a new trial _monday, june ._ argument on motion in arrest of judgment (mr. serjeant best) (mr. park) judgment of the court thereon (lord ellenborough) (mr. justice le blanc) (mr. justice bayley) (mr. justice dampier) lord cochrane's speech on application for a new trial affidavit of lord cochrane affidavit of the hon. william erskine cochrane statement of major the hon. william cochrane's complaint charles random de berenger's affidavit mr. butt's speech mr. park's speech mr. richardson's speech mr. serjeant pell's speech mr. c. f. williams's speech mr. denman's speech mr. gurney's speech _tuesday, june ._ mr. justice le blanc's speech in pronouncing sentence luke hansard & sons, near lincoln's-inn fields, london. the following _trials_ are published from mr. gurney's short-hand notes. . the proceedings on the cause, anthony fabrigas against general mostyn, governor of minorca, (for false imprisonment.) tried in the court of common pleas, london, july , . to which are added, the subsequent arguments. _s._ _d._ . the trial of jane butterfield, (for the murder of william scawen, esq.) at the assize at croydon, august , . before lord chief baron smythe. _s._ _d._ . the trial of the cause on an action brought by stephen sayre, esq. against the earl of rochford, (for false imprisonment.) before lord chief justice de grey, in the court of common pleas, westminster, june , . _s._ _d._ . the trial of james hill, alias john the painter, (for wilfully setting fire to the king's rope house, at portsmouth.) before mr. baron hotham, at the assize at winchester, march , . _s._ . the trial of joseph stackpoole, esq. (for wilfully firing off a loaded pistol, at john parker, esq.) at the assize at maidstone. before mr. justice aston, march . _s._ _d._ . the trial of john horne, esq. upon an information, filed _ex officio_, by his majesty's attorney general, (for a libel.) before the earl of mansfield, at guildhall, july , . _s._ a supplement to the trial, containing the subsequent proceedings in the court of king's bench; _s._ . the trial of the rev. henry bate, (for a libel on the duke of richmond;) in the court of king's bench, june , , _s._ _d._ a supplement, containing the subsequent proceedings; _d._ . the trial of lord george gordon, (for high treason,) at the bar of the court of king's bench, february , . _s._ _d._ . the trial of john donellan, esq. (for the murder of sir theodosius boughton, bart.) before mr. justice buller, at the assize at warwick, march , . _s._ _d._ . the trial of david tyrie, (for high treason,) at the assize at winchester. before mr. justice heath, august , . _s._ . the trial of the indictment against the rev. william davies shipley, dean of st. asaph, (for a libel.) before mr. justice buller, at the assize at shrewsbury, august , . _s._ _d._ the previous arguments in this cause at the great session at wrexham, september , . _s._ _d._ _all the foregoing publications are printed in folio, to bind with the state trials._ . an account of the arguments of counsel, with the opinions at large of mr. justice gould, mr. justice ashhurst and mr. baron hotham, on the case of margaret caroline rudd, september , , _s._ _d._ . the trials on the informations which, by order of the house of commons, were filed by his majesty's attorney general against richard smith, esq. and thomas brand hollis esq. (for bribing the voters of the borough of hindon.) before mr. baron hotham, at the assize at salisbury, . _s._ _d._ . the trials of the rioters, at st. margaret's hill. before lord loughborough, mr. justice gould, mr. baron eyre, and mr. justice buller, in july . in eight parts. price _d._ each. . the trial of francis henry de la motte, (for high treason;) containing all the arguments of the counsel, &c. before mr. justice buller, at the sessions house in the old bailey, july . _s._ . the trial of the rev. bennet allen, and robert morris, esq. (for the murder of lloyd dulany, esq. in a duel in hyde park;) containing all the arguments of the counsel, &c. before mr. justice buller, at the sessions house in the old bailey, june . . the trial of the honorable lieutenant-general james murray, late governor of minorca. at a court martial, held at the horse guards. _s._ _d._ . the trial of the honorable major henry fitzroy stanhope, (for his conduct at tobago.) at a court martial, held at the horse guards, in june . _s._ _d._ . the proceedings in the court of king's bench against lieutenant bourne, on the prosecution of sir james wallace, for a libel, and for an assault; containing all the evidence, together with the arguments of mr. bearcroft, mr. silvester, mr. law, and mr. adam, for the prosecution; and of mr. lee, the honorable thomas erskine, and mr. macnally, for the defendant; and the speech of mr. justice willes at pronouncing judgment on mr. bourne. price _s._ _the last eight publications are printed in quarto._ . the case of the east india company, as stated and proved at the bar of the house of lords, on the th and th days of december, , upon the hearing of two petitions against a bill, intituled, "an act for establishing certain regulations for the better management of the territories, revenues, and commerce of this kingdom, in the east indies;" containing the arguments of mr. rous and mr. dallas, for the company; mr. hardinge and mr. plumer, for the directors. price _s._ _d._ . the whole proceedings on the trials of two informations, exhibited, _ex officio_, by the king's attorney general, against lord george gordon; (one for a libel on the queen of france and the french ambassador; the other for a libel on the judges and administration of the laws in england.) in the court of king's bench, london, june , , before the honorable mr. justice buller. price _s._ . the whole proceedings on the trial of an information, exhibited, _ex officio_, by the king's attorney-general, against john stockdale, (for a libel on the house of commons.) in the court of king's bench, dec. , . before lord kenyon. to which is subjoined, mr. erskine's argument in the case of the dean of st. asaph. price _s._ . the evidence on the cause, james brown against the phoenix assurance company. tried before lord loughborough, dec. , . . the whole proceedings on the trial of a cause, thomas walker, merchant, against william roberts, barrister-at-law, (for a libel.) at lancaster assizes, march, . before mr. baron thomson. price _s._ . the proceedings on the _quo warranto_ against an alderman and a common councilman of chester; containing the two trials at shrewsbury, and the arguments and judgments in the court of king's bench, and in the house of lords. two volumes, large octavo. price £. . _s._ . the whole proceedings on the trial of an information, exhibited, _ex officio_, by the king's attorney-general, against thomas paine, (for a libel.) before lord kenyon, in the court of king's-bench, guildhall, dec. d, . price _s._ _d._ . the trial of thomas hardy, (for high treason,) at the sessions house, in the old bailey, on the th, th, th, and st of october, and st, d, th, and th of november, ; containing the parol evidence, authentic copies of all the letters, and the arguments verbatim. in four volumes. price £. . _s._ in boards. . the trial of john horne tooke, esq. (for high treason,) at the sessions house, in the old bailey, on the th, th, th, th, st, and d of november, ; containing the parol evidence, authentic copies of all the letters, and the arguments verbatim. in two volumes. price _s._ in boards. . the trial of william stone, (for high treason,) at the bar of the court of king's bench, on the th and th of january, . price _s._ . the trial of robert thomas crossfield, (for high treason,) at the sessions-house, in the old bailey, on the th and th of may, . price _s._ . the trial of james o'coigley, alias james quigley, alias james john fivey, arthur o'connor, esq., john binns, john allen, and jeremiah leary, (for high treason,) under a special commission, at maidstone, on the st and d of may, . price _s._ . the trial of william codling, john reid, william macfarlane, and george easterby, (for wilfully and feloniously destroying and casting away the brig adventure,) at the admiralty session, held at justice hall, in the old bailey, october th, . price _s._ . the trial of edward marcus despard, esq. (for high treason,) at the session-house, newington, surrey, on february th, . price _s._ . the trial of richard patch, (for the murder of isaac blight,) at the session-house, newington, surrey, april th, . price _s._ _the last fifteen publications are in octavo._ such of the above-mentioned publications as are not out of print, may be had of messrs. butterworth & son, fleet street. there are a few copies remaining of the trial of lord viscount melville, published by joseph & w. b. gurney under an order of the house of peers. dedicated (with permission) to the king, _price half-a-guinea, the th edition of_ brachygraphy: or, an easy and compendius system of short-hand: _adapted to the various arts, sciences, and professions,_ by joseph gurney. note.--the book is a sufficient instructor of itself; but if any difficulties occur, they shall be removed upon application to the author, either personally or by letter, without any additional expence. transcriber's notes: as this text is a transcription of a trial, there are inconsistencies in spelling and punctuation. they have been left as in the original except for proper names, which have been corrected to match the spelling of the title and the list of counsel. words in italics in the original are surrounded by _underscores_. the following words used an oe ligature in the original. manoeuvres phoenix subpoena, subpoenas, subpoenaed superscripts in the original have been ignored. the letters after the carat symbol were superscripted in the original: alex^r (for alexander) gab^l (for gabriel) hon^ble (for honorable) j^s (for joseph) the curious case of lady purbeck a scandal of the xviith century by the author of "the life of sir kenelm digby," "the adventures of king james ii.," "marshal turenne" "the life of a prig," etc. longmans, green, and co. paternoster row, london new york, bombay, and calcutta preface the curious case of lady purbeck is here presented without embellishment, much as it has been found in old books and old manuscripts, chiefly at the record office and at the british museum. readers must not expect to find any "well-drawn characters," "fine descriptions," "local colour," or "dramatic talent," in these pages, on each of which mr. dry-as-dust will be encountered. possibly some writer of fiction, endowed with able hands directed by an imaginative mind, may some day produce a readable romance from the rough-hewn matter which they contain: but, as their author's object has been to tell the story simply, as it has come down to us, and, as much as was possible, to let the contemporaries of the heroine tell it in their own words, he has endeavoured to suppress his own imagination, his own emotions, and his own opinions, in writing it. he has the pleasure of acknowledging much useful assistance and kind encouragement in this little work from mr. walter herries pollock. contents chapter i. page sir edward coke--lady elizabeth hatton--bacon--marriage of coke and lady elizabeth--birth of the heroine chapter ii. rivalry of coke and bacon--quarrelling between coke and lady elizabeth--coke offends the king and loses his offices--letter of bacon to coke chapter iii. coke tries to regain the favour of buckingham and the king by offering his daughter to sir john villiers--anger of lady elizabeth--lady elizabeth steals away with her daughter chapter iv. coke besieges his wife and carries off his daughter--coke and winwood _v_. lady elizabeth and bacon--charges and counter-charges chapter v. lady elizabeth tries to recover her daughter--her scheme for a match between frances coke and the earl of oxford--bacon, finding that he has offended both buckingham and the king, turns round and favours the match with villiers--trial of lady exeter--imprisonment of lady elizabeth at an alderman's house chapter vi. frances is tortured into consent--the marriage--lady elizabeth comes into royal favour and coke falls out of it--lady elizabeth's dinner-party to the king--carleton and his wife quarrel about her chapter vii. buckingham ennobles his own family--villiers becomes lord purbeck--purbeck and the countess of buckingham become catholics--rumours that purbeck is insane chapter viii. the insanity question--quite sane--thought insane again--letter from lady purbeck to buckingham--birth of robert wright--sir robert howard chapter ix. proceedings instituted against sir robert howard and lady purbeck--buckingham's correspondence about them with his lawyers--lanier, the king's musician--buckingham accuses lady purbeck of witchcraft--dr. lambe--laud and witchcraft chapter x. trial of lady purbeck before the high commission--the sentence--archbishop laud--the ambassador of savoy--escape--clun--some of our other characters--lady purbeck goes to stoke pogis to take care of her father--death of coke chapter xi. lady purbeck goes to london--laud--arrest of lady purbeck and sir robert howard--question of her virtue at that time--lord danby--guernsey--paris--sir robert howard turns the tables on laud--changes of religion chapter xii. lady purbeck in paris--the english ambassador--serving a writ--lady purbeck at a convent--sir kenelm digby--his letter about lady purbeck--lady purbeck returns to england chapter xiii. lord purbeck takes lady purbeck back again as his wife--he acknowledges robert wright as his own son--death of lady purbeck--retrospect of her life and character--her descendants--claims to the title of viscount purbeck chapter i. "after this alliance, let tigers match with hinds, and wolves with sheep, and every creature couple with its foe." dryden. the political air of england was highly charged with electricity. queen elizabeth, after quarrelling with her lover, the earl of essex, had boxed his ears severely and told him to "go to the devil;" whereupon he had left the room in a rage, loudly exclaiming that he would not have brooked such an insult from her father, and that much less would he tolerate it from a king in petticoats. this well-known incident is only mentioned to give an idea of the period of english history at which the following story makes its start. it is not, however, with public, but with private life that we are to be here concerned; nor is it in the court of the queen, but in the humbler home of her attorney-general, that we must begin. in a humbler, it is true, yet not in a very humble home; for mr. attorney coke had inherited a good estate from his father, had married an heiress, in bridget paston, who brought him the house and estate of huntingfield hall, in suffolk, together with a large fortune in hard cash; and he had a practice at the bar which had never previously been equalled. coke was in great sorrow, for his wife had died on the th of june, , and such was the pomp with which he determined to bury her, that her funeral did not take place until the th of july. in his memorandum-book he wrote on the day of her death: "most beloved and most excellent wife, she well and happily lived, and, as a true handmaid of the lord, fell asleep in the lord and now reigns in heaven." bridget had made good use of her time, for, although she died at the age of thirty-three, she had, according to burke, seven children; but, according to lord campbell, ten. as bridget was reigning in heaven, coke immediately began to look about for a substitute to fill the throne which she had left vacant upon earth. youth, great personal beauty and considerable wealth, thought this broken-hearted widower at the age of forty-six, would be good enough for him, and the weeks since the true handmaid of the lord had left him desolate were only just beginning to blend into months, when he fixed his mind upon a girl likely to fulfil his very moderate requirements. he, a widower, naturally sought a widow, and, happily, he found a newly made one. youth she had, for she was only twenty; beauty she must have had in a remarkable degree, for she was afterwards one of the lovely girls selected to act with the queen of james i. in ben jonson's _masque of beauty_; and wealth she had in the shape of immense estates. elizabeth, grand-daughter of the great lord burghley, and daughter of burghley's eldest son thomas cecil, some years later earl of exeter, had been married to the nephew and heir of lord chancellor hatton. not very long after her marriage her husband had died, leaving her childless and possessed of the large property which he had inherited from his uncle. this young widow was a woman not only of high birth, great riches, and exceptional beauty, but also of remarkable wit, and, as if all this were not enough, she had, in addition, a violent temper and an obstinate will. this coke found out in her conduct respecting a daughter who eventually became lady purbeck, the heroine of our little story. romance was not wanting in the attorney-general's second wooing; for he had a rival, whom lord campbell in his _lives of the chief justices_, describes as "then a briefless barrister, but with brilliant prospects," a man of thirty-five, who happened to be lady elizabeth's cousin. his name was francis bacon, afterwards lord chancellor, baron verulam, viscount st. albans, and the author of the _novum organum_ as well of a host of other works, including essays on almost every conceivable subject. in the opinion of certain people, he was also the author of the plays commonly attributed to one william shakespeare. this rival was good-looking, had a charming manner, and was brilliant in conversation, while his range of subjects was almost unlimited, whereas, the wooer in whom we take such an affectionate interest, was wrinkled, dull, narrow-minded, unimaginative, selfish, over-bearing, arrogant, illiterate, ignorant in almost everything except jurisprudence, of which he was the greatest oracle then living, and uninterested in everything except law, his own personal ambition, and money-making. shortly before coke had marked the young and lovely lady elizabeth hatton for his own, bacon had not only paid his court to her in person, but had also persuaded his great friend and patron, lord essex, to use his influence in inducing her to marry him. essex did so to the very best of his ability, a kind service for which bacon afterwards repaid him after he had fallen--we have seen that his star was already in its decadence--by making every effort, and successful effort, to get him convicted of treason, sentenced to death, and executed. which of these limbs of the law was the beautiful heiress to select? she showed no inclination to marry francis bacon, and she was backed up in this disinclination by her relatives, the cecils. the head of that family, lord burghley, queen elizabeth's lord high treasurer, was particularly proud of his second son, robert, whom he had succeeded in advancing by leaps and bounds until he had become secretary of state; and burghley and the rest of his family feared a dangerous rival to robert in the brilliant bacon, who had already attracted the notice, and was apparently about to receive the patronage, of the court. if bacon should marry the famous beauty and become possessed of her large fortune, there was no saying, thought the cecils, but that he might attain to such an exalted position as to put their own precocious robert in the shade. bridget had not been in her grave four months when the great lord burghley died. coke attended his funeral, and a funeral being obviously a fitting occasion on which to talk about that still more dreary ceremony, a wedding, coke took advantage of it to broach the question of a marriage between himself and lady elizabeth hatton. he broached it both to her father, the new lord burghley, and to her uncle, the much more talented robert. whatever their astonishment may have been, each of these cecils promised to offer no opposition to the match. they probably reflected that the attorney-general was a man in a powerful position, and that, with his own great wealth combined with that of lady elizabeth hatton, he might possibly prove of service to the cecil family in the future. how the match, proposed under such conditions, came about, history does not inform us, but, within six months of bridget's funeral, her widower embalmed her memory by marrying elizabeth hatton, a girl fifteen years her junior. if any writer possessed of imagination should choose to make a novel on the foundation of this simple story, he may describe to his readers how the cross-grained and unattractive coke contrived to induce the fair lady elizabeth hatton to accept him for a husband. the present writer cannot say how this miracle was worked, for the simple reason that he does not know. one incident in connection with the marriage, however, is a matter of history. elizabeth was not sufficiently proud of her prospective bride-groom to desire to stand beside him at a wedding before a large, fashionable, and critical assemblage in a london church. if he would have her at all, she insisted that he must take her in the only way in which he could get her, namely, by a clandestine marriage, in a private house, with only two or three witnesses. now, if there was one thing more than another in which mr. attorney coke lived and moved and had his being, it was the law, to all offenders against which he was an object of terror; and such a great lawyer must have been fully aware that, by making a clandestine marriage in a private house, he would render himself liable to the greater excommunication, whereby, in addition to the minor annoyance of being debarred from the sacraments, he might forfeit the whole of his property and be subjected to perpetual imprisonment. to make matters worse, archbishop whitgift had just issued a pastoral letter to all the bishops in the province of canterbury, condemning marriages in private houses at unseasonable hours, and forbidding under the severest penalties any marriage, except in a cathedral or in a parish church, during the canonical hours, and after proclamation of banns on three sundays or holidays, or else with the license of the ordinary. rather than lose his prize, coke, the great lawyer, determined to defy the law, and to run all risks, risks which the bride seemed anxious to make as great as possible; for, at her earnest request, or rather dictation, the pair were married in a private house, without license or banns, and in the evening, less than five months after coke had made the entry in his diary canonising bridget. as the archbishop had been his tutor, coke may have expected him to overlook this little transgression. instead of this, the pious primate at once ordered a suit to be instituted in his court against the bridegroom, the bride, the parson who had married them, and the bride's father, lord burghley, who had given her away. lord campbell says that "a libel was exhibited against them, concluding for the 'greater excommunication' as the appropriate punishment." mr. attorney now saw that there was nothing to be done but to kiss the rod. accordingly, he made a humble and a grovelling submission, on which the archbishop gave a dispensation under his great seal, a dispensation which is registered in the archives of lambeth palace, absolving all concerned from the penalties they had incurred, and, as if to complete the joke, alleging, as an excuse, ignorance of the law on the part of the most learned lawyer in the kingdom. the newly married pair had not a single taste in common. the wife loved balls, masques, hawking, and all sorts of gaiety; she delighted in admiration and loved to be surrounded by young gallants who had served in the wars under sydney and essex, and who could flatter her with apt quotations from the verses of spenser and surrey. the husband, on the contrary, detested everything in the form of fun and frolic, loved nothing but law and money, loathed extravagance and cared for no society, except that of middle-aged barristers and old judges. as might be expected, the union of this singularly ill-assorted couple was a most unhappy one. indeed it was a case of-- "at home 'tis steadfast hate, and one eternal tempest of debate."[ ] within a year of their marriage, that is to say in , lady elizabeth hatton, as she still called herself, had a daughter. here again burke and lord campbell are at variance. burke says that by this marriage coke had two daughters, elizabeth, who died unmarried, and frances, our heroine; whereas lord campbell says that frances was born within a year of their marriage and makes no mention of any elizabeth. it is pretty clear, from subsequent events, that, if there was an elizabeth, she must have died very young, and that frances must have been born almost as soon as was possible after the birth of her elder sister.[ ] the beginning of our heroine may make the end of our chapter. in the next she will not be seen at all; but, as will duly appear, the events therein recorded had a great--it might almost be said a supreme--influence on her fortunes. footnotes: [ ] young's _love of fame_. [ ] most of the matter in this chapter has been taken from _the lives of the chief justices of england_, by john, lord campbell. in two volumes. london: john murray, , vol. i., p. _seq._, chap. vii. chapter ii. "now hatred is by far the longest pleasure, men love in haste, but they detest at leisure." _don juan_, xiii., . rivals in love, rivals in law, rivals for place, coke and bacon, while nominally friends, were implacable enemies, but they sought their ends by different methods. when james i. had ascended the throne, bacon began at once to seek his favour; but coke took no trouble whatever for that purpose, and he was not even introduced to the royal presence until several weeks after the accession. bacon, then a k.c., held no office during the first four years of the new reign; but his literary fame and his skilful advocacy at the bar excited the jealousy of coke. on one occasion, coke grossly insulted him in the court of exchequer, whereupon bacon said: "mr. attorney, i respect you but i fear you not; and the less you speak of your own greatness, the more i will think of it." coke angrily replied: "i think scorn to stand upon terms of greatness towards you, who are less than little--less than the least." lord campbell says that sir edward coke's arrogance to the whole bar, and to all who approached him, now became almost insufferable, and that "his demeanour was particularly offensive to his rival"--bacon. as to prisoners, "his brutal conduct ... brought permanent disgrace upon himself and upon the english bar." when sir walter raleigh was being tried for his life, but had not yet been found guilty, coke said to him: "thou art the most vile and execrable traitor that ever lived. i want words sufficient to express thy viprous treasons." when sir everard digby confessed that he deserved the vilest death, but humbly begged for mercy and some moderation of justice, coke told him that he ought "rather to admire the great moderation and mercy of the king, in that, for so exorbitant a crime, no new torture answerable thereto was devised to be inflicted upon him," and that, as to his wife and children, he ought to desire the fulfilment of the words of the psalm: "let his wife be a widow and his children vagabonds: let his posterity be destroyed, and in the next generation let his name be quite put out." according to lord campbell, coke's "arrogance of demeanour to all mankind is unparalleled." towards the end of the reign of elizabeth, coke, as attorney-general, had had another task well suited to his taste, that of examining the prisoners stretched on the rack, at the tower. volumes of examinations of prisoners under torture, in coke's own handwriting, are still preserved at the state paper office, which, says campbell, "sufficiently attest his zeal, assiduity and hard-heartedness in the service.... he scrupulously attended to see the proper degree of pain inflicted." yet this severe prosecutor, bitter advocate and cruel examiner, became a chief justice of tolerable courtesy, moderate severity, and unimpeachable integrity. if he had everything his own way in the criminal court and the torture chamber, coke did not find his wishes altogether unopposed in his family. to begin with, he suffered the perpetual insult of the refusal on the part of his wife to be called by his name. if her first husband had been of higher rank, it might have been another matter: but both were only knights, and it was a parallel case to the widow jones, after she had married smith, insisting upon still calling herself mrs. jones. lady elizabeth defended her conduct on this point as follows:[ ] "i returned this answer: that if sir edward cooke would bury my first husband accordinge to his own directions, and also paie such small legacys as he gave to divers of his friends, in all cominge not to above £ or £ , at the most that was left unperformed, he having all sir william hatton's goods & lands to a large proportion, then would i willingly stile myself by his name. but he never yielded, so i consented not to the other." whether hatton or coke, as an earl's daughter she was lady elizabeth, by which name alone let us know her. campbell states that, after the birth of frances, sir edward and lady elizabeth "lived little together, although they had the prudence to appear to the world to be on decent terms till the heiress was marriageable." coke had been astute enough to secure a comfortable country-house, at a very convenient distance from london, through lady elizabeth. her ladyship had held a mortgage upon stoke pogis, a place that belonged formerly to the earls of huntingdon,[ ] and coke, either by foreclosing or by selling, obtained possession of the property. as it stood but three or four miles to the north of windsor, the situation was excellent.[ ] sir edward's london house was in the then fashionable quarter of holborn, a place to which dwellers in the city used to go for change of air.[ ] as coke and his wife generally quarrelled when together, the husband was usually at holborn[ ] when the wife was at stoke, and _vice-versâ_. it was almost impossible that miss frances should not notice the strained relations between her parents. nothing could have been much worse for the education of their daughter than their constant squabblings; and, unless she differed greatly from most other daughters, she would take advantage of their mutual antipathies to play one against the other, a pleasing pastime, by means of which young ladies, blessed with quarrelsome parents, often obtain permissions and other good things of this world, which otherwise they would have to do without. lady elizabeth found a friend and a sympathiser in her domestic worries. francis bacon, the former lover of her fortune, if not of her person, became her consoler and her counsellor. let not the reader suppose that these pages are so early to be sullied by a scandal. nothing could have been farther from reproach than the marital fidelity of lady elizabeth, but it must have gratified bacon to annoy the man who had crossed and conquered him in love, or in what masqueraded under that name, by fanning the flames of lady elizabeth's fiery hatred against her husband. hitherto, coke had had it all his own way. he had snubbed and insulted bacon in the law courts, and he had snatched a wealthy and beautiful heiress from his grasp. the wheel of fortune was now about to take a turn in the opposite direction. about the year , king james entertained the idea of reigning as an absolute sovereign. archbishop bancroft flattered him in this notion, and suggested that the king ought to have the privilege of "judging whatever cause he pleased in his own person, free from all risk of prohibition or appeal." james summoned the judges to his council and asked whether they consented to this proposal. coke replied:-- "god has endowed your majesty with excellent science as well as great gifts of nature; but your majesty will allow me to say, with all reverence, that you are not learned in the laws of this your realm of england, and i crave leave to remind your majesty that causes which concern the life or inheritance, or goods or fortunes of your subjects are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it." on hearing this, james flew into a rage and said: "then am i to be _under_ the law--which it is treason to affirm?" to which coke replied: "thus wrote braxton: 'rex non debet esse sub homine, sed sub _deo et lege_.'"[ ] coke had the misfortune to offend the king in another matter. james issued proclamations whenever he thought that the existing law required amendment. a reply was drawn up by coke, in which he said: "the king, by his proclamation or otherwise, cannot change any part of the common law, or statute law, or the customs of the realm." this still further aggravated james. meanwhile bacon, now attorney-general, was high in the king's favour, and he was constantly manoeuvring in order to bring about the downfall of his rival. he persuaded james to remove coke from the common pleas to the king's bench--a promotion, it is true, but to a far less lucrative post. this greatly annoyed coke, who, on meeting bacon, said: "mr. attorney, this is all your doing." for a time coke counteracted his fall in james's favour by giving £ , to a "benevolence," which the king had asked for the pressing necessities of the crown, a benevolence to which the other judges contributed only very small sums. this fair weather, however, was not to be of long duration. in coke again offended the king. bacon had declared his opinion that the king could prohibit the hearing of any case in which his prerogative was concerned. in the course of a trial which shortly afterwards took place, bacon wrote to the judges that it was "his majesty's express pleasure that the farther argument of the said cause be put off till his majesty's farther pleasure be known upon consulting him." in a reply, drawn up by coke and signed by the other judges, the king was told that "we have advisedly considered of the said letter of mr. attorney, and with one consent do hold the same to be contrary to law, and such as we could not yield to by our oaths." james was furious. he summoned the judges to whitehall and gave them a tremendous scolding. they fell on their knees and all were submissive except coke, who boldly said that "obedience to his majesty's command ... would have been a delay of justice, contrary to law, and contrary to the oaths of the judges." although coke was now in terrible disgrace at court, he might have retained his office of chief justice, if he would have sanctioned a job for villiers, the new royal favourite. george villiers, a young man of twenty-four, since the fall of the earl of somerset had centralised all power and patronage in his own hands. the chief clerkship in the court of king's bench, a sinecure worth £ , a year, was falling vacant, and villiers wished to have the disposal of it. the office was in the gift of coke, and, when bacon asked that its gift should be placed in the hands of villiers, coke flatly refused and thus offended the most powerful man in england. nothing then became bad enough for coke and nothing in coke could be good. his reports of cases were carefully examined by bacon, who pointed out to the king many "novelties, errors, and offensive conceits" in them. the upshot of the whole matter was that coke was deprived of office. when the news was communicated to him, says a contemporary letter, "he received it with dejection and tears."[ ] it would be natural to suppose that by this time bacon had done enough to satisfy his vengeance upon coke. but no! he must needs worry him yet further by an exasperating letter, from which some extracts shall be given. it opens with a good deal of scriptural quotation as to the wholesomeness of affliction. then bacon proceeds to say:[ ] "afflictions level the mole-hills of pride, plough the heart and make it fit for wisdom to sow her seed, and for grace to bring forth her increase. happy is that man, therefore, both in regard of heavenly and earthly wisdom, that is thus wounded to be cured, thus broken to be made straight, thus made acquainted with his own imperfections that he may be perfect. supposing this to be the time of your affliction, that which i have propounded to myself is, by taking the seasonable advantage, like a true friend (though far unworthy to be counted so) to show your shape in a glass.... yet of this resolve yourself, it proceedeth from love and a true desire to do you good, that you, knowing what the general opinion is may not altogether neglect or contemn it, but mend what you may find amiss in yourself.... first, therefore, behold your errors: in discourse you delight to speak too much.... your affections are entangled with a love of your own arguments, though they be the weaker.... secondly, you cloy your auditory: when you would be observed, speech must either be sweet, or short. thirdly, you converse with books, not men ... who are the best books. for a man of action & employment you seldom converse, & then but with underlings; not freely but as a schoolmaster with his scholars, ever to teach, never to learn.... you should know many of these tales you tell to be but ordinary, & many other things, which you repeat, & serve in for novelties to be but stale.... your too much love of the world is too much seen, when having the living" [income] "of £ , , you relieve few or none: the hand that hath taken so much, can it give so little? herein you show no bowels of compassion.... we desire you to amend this & let your poor tenants in norfolk find some comfort, where nothing of your estate is spent towards their relief, but all brought up hither, to the impoverishing of your country.... when we will not mind ourselves, god (if we belong to him) takes us in hand, & because he seeth that we have unbridled stomachs, therefore he sends outward crosses." and bacon ends by commending poor coke "to god's holy spirit ... beseeching him to send you a good issue out of all these troubles, & from henceforth to work a reformation in all that is amiss, & a resolute perseverance, proceeding, & growth, in all that is good, & that for his glory, the bettering of yourself, this church & commonwealth; whose faithful servant whilest you remain, i am a faithful servant unto you." if ever there was a case of adding insult to injury, surely this piece of canting impertinence was one of the most outrageous. footnotes: [ ] _life of sir edward coke._ by h.w. woolrych. london: j. & w.t. clarke, , pp. - . [ ] lipscomb's _history and antiquities of the co. of bucks_, , vol. iv., p. . [ ] gray made the churchyard of stoke pogis the scene of his famous elegy, and he was buried there in . [ ] _ency. brit._, vol. xiv. article on london. [ ] lady elizabeth's house in holborn was called hatton house. a letter (_s.p. dom._, james i., th july, ) says: "lady hatton sells her house in holborn to the duke of lennox, for £ , ." another letter (ib. th february, ) says that "lady hatton complained so much of her bargain with the duchess of richmond for hatton house, that the duchess has taken her at her word and left it on her hands, whereby she loses £ , a year, and £ , fine." [ ] "under no man's judgment should the king lie; but under god and the law only." [ ] letter from john castle. see d'israeli's _character of james i._, p. . [ ] _cabala sive scrina sacra_: mysteries of state and government. in _letters of illustrious persons, etc_. london: thomas sawbridge and others, , p. . chapter iii. "marriage is a matter of more worth than to be dealt in by attorneyship." _henry vi._, i., v., . if bacon flattered himself that he had extinguished coke for good and all, he was much mistaken. it must have alarmed him to find that lady elizabeth, after constant quarrels with her husband and ceasing to live with him, had taken his part, now that he had been dismissed from office, that she had solicited his cause at the very council table,[ ] and that she had quarrelled with both the king and the queen about the treatment of her husband, with the result that she had been forbidden to go to court, and had begun to live again with coke, taking with her her daughter, now well on in her 'teens. there was a period of hostilities, however, early in the year . sir edward and lady elizabeth went to law about her jointure. in may chamberlain wrote to carleton:-- "the lord coke & his lady hath great wars at the council table. i was there on wednesday, but by reason of the lord keeper's absence, there was nothing done. what passed yesterday i know not yet: but the first time she came accompanied with the lord burghley" (her eldest brother), "& his lady, the lord danvers" (her maternal grandfather), "the lord denny" (her brother-in-law), "sir thomas howard" (her nephew, afterwards first earl of berkshire) "& his lady, with i know not how many more, & declaimed bitterly against him, and so carried herself that divers said burbage" [the celebrated actor of that time] "could not have acted better. indeed, it seems he [sir edward coke] hath carried himself very simply, to say no more, in divers matters: and no doubt he shall be sifted thoroughly, for the king is much incensed against him, & by his own weakness he hath lost those few friends he had." it is clear from this letter that, although her husband was one of the greatest lawyers of the day, lady elizabeth was not at all afraid of pitting herself against him in court, where indeed she seems to have proved the better pleader of the pair. this dispute was patched up. on th june chamberlain wrote: "sir edward coke & his lady, after so much animosity and wrangling, are lately made friends; & his curst heart hath been forced to yield more than ever he meant; but upon this agreement he flatters himself that she will prove a very good wife." so coke and his "very good wife" settled down together again. we shall see presently whether there was to be a perpetual peace between them. while bacon was meditating an information against sir edward coke in the star chamber for malversation of office, in the hope that a heavy fine might be imposed upon him, coke also was plotting. he discovered that bacon, who had been made lord keeper early in the year , had had his head turned by his promotion and had become giddy on his pinnacle of greatness; or, to use bacon's own words, that he was suffering acutely from an "unbridled stomach." of this coke determined to take advantage. looking back upon his own fall, coke considered that the final crash had been brought about not, as bacon had insinuated in his letter, by offending the almighty, but by offending villiers, now earl of buckingham, and he came to the conclusion that his best hope of recovering his position would be to find some method of doing that earl a service. now, buckingham had an elder brother, sir john villiers, who was very poor, and for whom he was anxious to pick up an heiress. the happy thought struck coke that, as all his wife's property was entailed on her daughter, frances, he might secure buckingham's support by selling the girl to buckingham's brother, for the price of buckingham's favour and assistance. it was most fortunate that frances was exceedingly beautiful, and that sir john villiers was unattractive and much older than she was; because this would render the amount of patronage, due in payment by buckingham to coke, so much the greater. james i. and buckingham had gone to scotland. in the absence of the king and the court, bacon, as lord keeper, was one of the greatest men left in london, and quite the greatest in his own estimation. misled by this idea of his own importance, he was imprudent enough to treat his colleague, winwood, the secretary of state, with as little ceremony as if he had been a junior clerk, thereby incurring the resentment of that very high official. common hatred of bacon made a strong bond of union between coke and winwood, and winwood joined readily in the plot newly laid by coke. sir john villiers was already acquainted with coke's pretty daughter; and, when coke went to him, suggested a match, and enlarged upon the fortune to which she was sole heiress, sir john professed to be over head and ears in love with her, and observed that "although he would have been well pleased to have taken her in her smoke [smock], he should be glad, by way of curiosity, to know how much could be assured by marriage settlement upon her and her issue."[ ] with some reluctance sir edward coke then entered into particulars, and the match was regarded as settled by both sides. everything having been now satisfactorily arranged, it occurred to coke that possibly the time had arrived for informing, first his wife, and afterwards his daughter, of the marriage to which he had agreed. sir edward had often seen his wife in a passion, and he had frequently been a listener to torrents of abuse from her pretty lips and caustic tongue. although he had been notorious as the rudest member of the bar, he had generally come off second best in his frequent battles of words with his beautiful helpmate. stolid and unimpressible as he was, he can hardly have been impervious to the effects of the verbal venom with which she had constantly stung him. but all this had been mere child's play in comparison with her fury on being informed that, without so much as consulting her, her husband had definitely settled a match for her only child with a portionless knight. a new weapon was lying ready to her hand, and she made every possible use of it. it consisted in the fact that, much as she and her husband had quarrelled and lived apart, she had returned to him in the hour of his tribulation, had fought his battles before the king and the council, and had even braved the royal displeasure and endured exile from the court, rather than desert him in his need. she bitterly reproached him for repaying her constancy and sacrifices on his behalf by selling her daughter without either inquiring as to the mother's wishes, or even informing that mother of his intention. if lady elizabeth was infuriated at the news of the match, her daughter was frenzied. she detested sir john villiers, and she implored her parents never again to mention the question of her marrying him. the mother and daughter were on one side and the father on the other; neither would yield an inch, and hatton house, holborn, became the scene of violent invective and bitter weeping. buckingham is said to have promised coke that, if he would bring about the proposed marriage, he should have his offices restored to him. buckingham's mother, lady compton, also warmly supported the project. she was what would now be called "a very managing woman." since the death of buckingham's father, she had had two husbands, sir william rayner and sir thomas compton,[ ] brother to the earl of northampton. she was in high favour at court, and she was created countess of buckingham just a year later than the time with which we are now dealing. as buckingham favoured the match, of course the king favoured it also; and, as has been seen, winwood, the secretary of state, favoured it, simply because bacon did not. on the other side, among the active opponents of the match, were bacon the lord keeper, lord and lady burghley, lord danvers, lord denny, sir thomas and lady howard, and sir edmund and lady withipole. suddenly, to coke's great satisfaction, lady elizabeth became, as he supposed, calm and quiet. it was his habit to go to bed at nine o'clock, and to get up very early. one night he went to bed at his usual hour, under the impression that his wife was settling down nicely and resigning herself to the inevitable. while he was in his beauty-sleep, soon after ten, that excellent lady quietly left the house with her daughter, and walked some little distance to a coach, which she had engaged to be in waiting for them at an appointed place. in this coach they travelled by unfrequented and circuitous roads, until they arrived at a house near oatlands, a place belonging to the earl of argyll, but rented at that time by lady elizabeth's cousin, sir edmund withipole. the distance from holborn to oatlands, as the crow flies, is about twenty miles; but, by the roundabout roads which the fugitives took in order to prevent attempts to trace them, the distance must have been considerable, and the journey, in the clumsy coach of the period, over the rutted highways and the still worse by-roads of those times, must have been long and wearisome. oatlands is close to weybridge, to the south-west of london, in surrey, just over the boundary of middlesex and about a mile to the south of the river thames. in sir edmund withipole's house lady elizabeth and her daughter lived in the strictest seclusion, and all precautions were taken to prevent the place of their retreat from becoming known. and great caution was necessary, for lady elizabeth and frances were almost within a dozen miles of stoke pogis, their country home; so that they would have been in danger of being recognised, if they had appeared outside the house. but lady elizabeth was not idle in her voluntary imprisonment. she conceived the idea that the best method of preventing a match which she disliked for her daughter would be to make one of which she could approve. accordingly she offered frances to young henry de vere, eighteenth earl of oxford. although to a lesser extent, like sir john villiers, he was impecunious and on the look out for an heiress, his father--who was distinguished for having been one of the peers appointed to sit in judgment on mary, queen of scots, for having had command of a fleet to oppose the armada, for his success in tournaments, for his comedies, for his wit, and for introducing the use of scents into england--having dissipated the large inheritance of his family. undoubtedly, lady elizabeth was a woman of considerable resource; but, with all her virtues, she was not over-scrupulous; for, as lord campbell says,[ ] to induce her daughter to believe that oxford was in love with her, she "showed her a forged letter, purporting to come from that nobleman, which asseverated that he was deeply attached to her, and that he aspired to her hand." lady elizabeth was apparently of opinion that everything--and everything includes lying and forgery--is fair in love and war. footnotes: [ ] chamberlain, in a letter dated nd june, . [ ] a quotation given by lord campbell (vol. i., p. ); but he does not state his authority. [ ] arthur wilson, in his life of james i. (_camden, history of england_, vol. ii., p. ), tells the following story about sir t. compton whom he calls "a low spirited man." "one bird, a roaring captain, was the more insolent against him because he found him slow & backward." after many provocations, bird "wrought so upon his cold temper, that compton sent him a challenge." on receiving it, bird told compton's second that he would only accept the challenge on condition that the duel should take place in a saw-pit, "where he might be sure compton could not run away from him." when both combatants were in the saw-pit, bird said: "now, compton, thou shalt not escape me," and brandished his sword above his head. while he was doing this, compton "in a moment run him through the body; so that his pride fell to the ground, and there did sprawl out its last vanity." chapter iv. "there is no such thing as perfect secrecy." --_south's sermons._ as might be expected, the whereabouts of the place for concealment of lady elizabeth and her daughter leaked out and reached the ears of sir edward coke, who immediately applied to the privy council for a warrant to search for his daughter. bacon opposed it. indeed, it is said that bacon had not only been all the time aware of the place of the girl's retreat, but had also joined actively in the plot to convey her to it. because it was difficult to obtain a search-warrant from the privy council, coke got an order to the same effect from winwood, the secretary of state;[ ] and, although this order was of doubtful regularity, coke determined to act upon it. in july, , coke mustered a band of armed men, made up of his sons (bridget's sons), his servants and his dependents. he put on a breastplate, and, with a sword at his side and pistols in the holsters of his saddle, he placed himself at the head of his little army, and gallantly led it to oatlands to wage war upon his wife. on arriving at the house which he went to besiege, he found no symptoms of any garrison for its defence. all was quiet, as if the place were uninhabited, the only sign that an attack was expected being that the gate leading to the house was strongly bolted and barred. to force the gate open, if a work requiring hard labour, was one of time, rather than of difficulty: and, when it had been accomplished, the general courageously led his troops from the outer defences to the very walls of the enemy's--that is to say of his wife's--castle. the door of the house was found to be a very different thing from the gate. the besiegers knocked, and pounded, and thumped, and pushed, and battered: but that door withstood all their efforts. again and again coke, with a loud voice, demanded his child, in the king's name. "remember," roared he to those within, "if we should kill any of your people, it would be justifiable homicide; but, if any of you should kill one of us, it would be murder!"[ ] to this opinion of the highest legal authority, given gratis, silence gave consent; for no reply was returned from the fortress, in which the stillness must have made the attackers afraid that the foes had fled. and then the bang, bang, banging on the door began afresh. one of coke's lieutenants suddenly bethought him of a flank attack, and, after sneaking round the house, this warrior adopted the burglar's manoeuvre of forcing open a window, on the ground floor. one by one the valiant members of coke's little army climbed into the house by this means, and the august person of the ex-lord chief justice himself was squeezed through the aperture. nobody appeared to oppose their search; but preparations to prevent it had evidently been made with great care; for chamberlain wrote that they had to "brake open divers doors." room after room was searched in vain; but, at last, lady elizabeth and frances were discovered hidden in a small closet. both the father and the mother clasped their daughter in their arms almost at the same moment. the daughter clung to the mother; the father clung to the daughter. sir edward pulled; lady elizabeth pulled; and, after a violent struggle between the husband and the wife, coke succeeded in wrenching the weeping girl from her mother's arms.[ ] without a moment's parley with his defeated antagonist, he dragged away his prey, took her out of the house, placed her on horseback behind one of her half-brothers, and started off with his whole cavalcade for his house at stoke pogis. the writer is old enough to have seen farmers' wives riding behind their husbands, on pillions. most uncomfortable sitting those pillions appeared to afford, and he distinctly remembers the rolling movements to which the sitters seemed to be subjected. this was when the pace was at a walk or a slow jog. but the unfortunate frances must have been rolled and bumped at speed; for there was a pursuit. in his already quoted letter to carleton, chamberlain says that sir edward coke's "lady was at his heels, and, if her coach had not held"--_i.e._, stuck in the mud of the appalling roads of the period--"in the pursuit after him, there was like to be strange tragedies." miss coke must have been long in forgetting that enforced ride of at least a dozen long miles, on a pillion behind a brother, and as a prisoner surrounded by an armed force. campbell states that, on reaching stoke pogis, coke locked his daughter "in an upper chamber, of which he himself kept the key." possibly, sir john villiers' mother, lady compton, may have been there, in readiness to receive her; for chamberlain says that coke "delivered his daughter to the lady compton, sir john's mother; but, the next day, edmondes, clerk of the council, was sent with a warrant to have the custody of the lady at his own house." this was probably bacon's doing. among the manuscripts at trinity college, cambridge, is a letter[ ] written from the inner temple to mrs. ann sadler, a daughter of sir edward coke by his first wife. from this we learn that, on finding herself robbed of her daughter, lady elizabeth hastened to london to seek the assistance of her friend bacon. in driving thither her coach was "overturned." we saw that it had "held" in the heavy roads when she was chasing her husband in it, and very likely its wheels may have become loosened in some ruts on that occasion. an upset in a carriage, however, was a common occurrence in those days, and, nothing daunted, lady elizabeth managed to complete her journey to the house of bacon in london. when she reached it, she was told that the lord keeper was unwell and in his room, asleep. she persuaded "the door-keeper" to take her to the sitting-room next to his bedroom, in order that she might be "the first to speak with him after he was stirring." the "door-keeper fulfilled her desire and in the meantime gave her a chair to rest herself in." then he most imprudently left her, and she had not been alone long when "she rose up and bounced against my lord keeper's door." the noise not only woke up the sleeping bacon, but "affrighted him" to such an extent that he called for help at the top of his voice. his servants immediately came rushing to his room. doubtless he was relieved at seeing them; but his feelings may have been somewhat mixed when lady elizabeth "thrust in with them." he was on very friendly terms with her; but it was disconcerting to receive a lady from his bed when he was half awake and wholly frightened, especially when, as the correspondent describes it, the condition of that lady was like that of "a cow that had lost her calf." the upshot of this rather unusual visit was that lady elizabeth got bacon's warrant, as lord keeper, and also that of the lord treasurer "and others of the council, to fetch her daughter from the father and bring them both to the council." at that particular time bacon had just made a blunder. he was well aware of buckingham's high favour with the king; but he scarcely realised its measure. indeed, since he had seen him last, and during the time that the king had been in scotland, buckingham's influence over james had increased enormously. it is true that bacon had enlisted the services of buckingham to defeat coke, and that he had used him as a tool to secure the office of lord keeper: but, as the occupier of that exalted position, he considered himself secure enough to take his own line, and even to offer buckingham some fatherly advice, as will presently appear. bacon now made another attack upon his enemy by summoning coke before the star chamber on a charge of breaking into a private house with violence. on receiving this summons, coke wrote to buckingham, who was with the king in the north, complaining that his wife, the withipoles, and their confederates, had conveyed his "dearest daughter" from his house, "in most secret manner, to a house near oatland, which sir edmund withipole had taken for the summer of my lord argyle." then he said: "i, by god's wonderful providence finding where she was, together with my sons and ordinary attendants did break open two doors, & recovered my daughter." his object, he said was, "first & principally, lest his majesty should think i was of confederacy with my wife in conveying her away, or charge me with want of government in my household in suffering her to be carried away, after i had engaged myself to his majesty for the furtherance of this match." buckingham, at about the same time that he received coke's letter, received one in a very different tone from bacon, in which he said:[ ] "secretary winwood has busied himself with a match between sir john villiers & sir edward coke's daughter, rather to make a faction than out of any good affection to your lordship. the lady's consent is not gained, _nor her mother's, from whom she expecteth a great fortune_. this match, out of my faith & freedom to your lordship, i hold very inconvenient, both for your mother, brother, & yourself." "first. he shall marry into a disgraced house, which in reason of state, is never held good." "next. he shall marry into a troubled house of man & wife, which in religion and christian discretion is not liked." "thirdly. your lordship will go near to lose all such of your friends as are adverse to sir edward coke (myself only except, who, out of a pure love & thankfulness, shall ever be firm to you).... therefore, my advice is, & your lordship shall do yourself a great honour, if, according to religion & the law of god, your lordship will signify unto my lady, your mother, that your desire is that the marriage be not pressed or proceeded in without the consent of both parents, & so either break it altogether, or defer any further delay in it (sic) till your lordship's return." a few days later, on the th of july, bacon wrote to an even greater man than buckingham, namely, to the king himself. "if," said he, "there be any merit in drawing on this match, your majesty should bestow thanks, not upon the zeal of sir edward coke to your majesty, nor upon the eloquent persuasions or pragmaticals of mr. secretary winwood; but upon them"--meaning himself--who "have so humbled sir edward coke, as he seeketh now that with submission which (as your majesty knoweth) before he rejected with scorn." and then he says that if the king really wishes for the match, concerning which he should like more definite orders, he will further it; for, says he, "though i will not wager on women's minds, i can prevail more with the mother than any other man." king james's reply is not in existence, and it is unknown; but, judging from a further letter of bacon's, it must have been rather cold and unfavourable; and, in bacon's second letter to the king, he was foolish enough to express a fear lest buckingham's "height of fortune might make him too secure." in his answer to this second letter of bacon, james reproves him for plotting with his adversary's wife to overthrow him, saying "this is to be in league with delilah." he also scolds bacon for being afraid that buckingham's height of fortune might make him "misknow himself." the king protests that buckingham is farther removed from such a vice than any of his other courtiers. bacon, he says, ought to have written to the king instead of to buckingham about "the inconvenience of the match:" "that would have been the part of a true servant to us, and of a true friend to him [buckingham]. but first to make an opposition, then to give advice, by way of friendship, is to make the plough go before the horse." by the time these letters had been carried backwards and forwards, to and from scotland and the north of england, a later date had been reached than we have legitimately arrived at in our story, and we must now go back to within a few days of sir edward coke's famous raid at oatlands. footnotes: [ ] _chief justices_, vol. i., pp. - [ ] _s.p. dom._, james i., july, . chamberlain to sir dudley carleton. [ ] campbell, p. . [ ] lord campbell's account. [ ] quoted by spedding in his _life of bacon_. [ ] foard's _life and correspondence of bacon_, p. . chapter v. "they've always been at daggers drawing, and one another clapper-clawing." butler's _hudibras, hud._, ii, . bacon had scarcely written his first letters to buckingham and the king, before he had instructed yelverton, the attorney-general, to institute a prosecution against sir edward coke, in the star chamber, for the riot at oatlands, which he made out to have been almost an act of war against the king, in his realm. her husband having carried away frances by force, lady elizabeth made an effort to recover her by a similar method. gerrard wrote to carleton[ ] that lady elizabeth, having heard that frances was to be taken to london, determined to meet her with an armed band and to wrest her from coke's power. "the mother she procureth a warrant from the counsell table whereto were many of the counsellors to take her agayne from him: goes to meete her as she shold come up. in the coach with her the lord haughton, sir e. lechbill, sir rob. rich, and others, with score men and pistolls; they mett her not, yf they had there had bin a notable skirmish, for the lady compton was with mrs. french in the coach, and there was clem coke, my lord's fighting sonne; and they all swore they would dye in the place, before they would part with her." without doubt, it was fortunate for both parties that they did not meet each other. the attempt was a misfortune, as well as a defeat for lady elizabeth; for while she failed to rescue her daughter, she also gave her husband a fresh count to bring against her in the legal proceedings which he forthwith instituted:--[ ] " . for conveying away her daughter clam et secreté. . for endeavouring to bind her to my lord oxford without her father's consent. . for counterfeiting a letter of my lord oxford offering her marriage. . for plotting to surprise her daughter and take her away by force, to the breach of the king's peace, and for that purpose assembling a body of desperate fellows, whereof the consequences might have been dangerous." to these terrible accusations lady elizabeth unblushingly replied: " . i had cause to provide for her quiet, secretary winwood threatening she should be married from me in spite of my teeth, and sir edward coke intending to bestow her against her liking: whereupon she asked me for help, i placed her at my cousin-german's house a few days for her health and quiet. . my daughter tempted by her father's threats and ill usuage, and pressing me to find a remedy, i did compassionate her condition, and bethought myself of this contract with my lord of oxford, if so she liked, and therefore i gave it to her to peruse and consider by herself: she liked it, cheerfully writ it out with her own hand, subscribed it, and returned it to me. . the end justifies--at least excuses--the fact: for it was only to hold up my daughter's mind to her own choice that she might with the more constancy endure her imprisonment--having this only antidote to resist the poison--no person or speech being admitted to her but such as spoke sir john villiers' language. . be it that i had some tall fellows assembled to such an end, and that something was intended, who intended this?--the mother! and wherefore? because she was unnaturally and barbarously secluded from her daughter, and her daughter forced against her will, contrary to her vows and liking, to the will of him she disliked." she then goes on to describe, by way of recrimination, sir edward coke's "most notorious riot, committed at my lord of argyle's house, where, without constable or warrant, well weaponed, he took down the doors of the gatehouse and of the house itself, and tore the daughter in that barbarous manner from her mother--justifying it for good law: a word for the encouragement of all notorious and rebellious malefactors from him who had been a chief justice, and reputed the oracle of the law." a _state paper_ (_dom._, james i., th july, , john chamberlain to sir dudley carleton) tells us what followed. as correspondence with sir dudley carleton will be largely quoted in these pages, this opportunity may be taken of observing that he was ambassador, at various times, in savoy, in the low countries, and in venice, that he became one of charles the first's principal ministers of state, and that he was eventually created viscount dorchester. "the next day being all convened before the council, she" [frances the daughter] "was sequestered to mr. attorney, & yesterday, upon a palliated agreement twixt sir edward coke & his lady, she was sent to hatton house, with order that the lady compton should have access to win her & wear her." one wonders whether the last "&" was accidentally substituted for the word "or," by a slip of the pen. in any case to "wear her" is highly significant! "it were a long story to tell all the passages of this business, which hath furnished paul's, & this town very plentifully the whole week." [one of the ecclesiastical scandals of that period was that the nave of st. paul's cathedral was a favourite lounge, and a regular exchange for gossip.] "the lord coke was in great danger to be committed for disobeying the council's order, for abusing his warrant, & for the violence used in breaking open the doors; to all of which he gave reasonable answers, &, for the violence, will justify it by law, though orders be given to prefer a bill against him in the star chamber. he and his friends complain of hard measure from some of the greatest at that board, & that he was too much trampled upon with ill language. and our friend" [winwood] "passed not scot free from the warrant, which the greatest there" [bacon] "said was subject to a _praemunire_, & withal, told the lady compton that they wished well to her and her sons, & would be ready to serve the earl of buckingham with all true affection, whereas others did it out of faction & ambition." bacon might swagger at the council board; but in his heart he was becoming exceedingly uneasy. we saw, at the end of the last chapter, that he had received a very sharp letter from the king; and now the royal favourite himself also wrote in terms which showed, unmistakably, how much bacon had offended him.[ ] "in this business of my brother's that you over-trouble yourself with, i understand from london, by some of my friends, that you have carried yourself with much scorn and neglect both towards myself and my friends, which, if it prove true, i blame not you but myself." this was sufficiently alarming, and at least as much so was a letter which came from the king himself in which was written:--[ ] "whereas you talk of the riot and violence committed by sir edward coke, we wonder you make no mention of the riot and violence of them that stole away his daughter, which was the first ground of all that noise." it is clear, therefore, that if things were going badly for coke, they were going almost worse for bacon, who now found himself in a very awkward position both with the king and with buckingham. nor was he succeeding as well as he could have wished in his attacks upon coke. he had made an attack by proceeding against him for a certain action, when a judge; but coke had parried this thrust by paying what was then a very large sum to settle the affair. in a letter to carleton[ ] gerrard says:-- "the lord chiefe justice sir ed. coke hath payd £ for composition for taking common bayle for some accused of pyracye, which hath been urged agaynst him since hys fall. and perhaps fearing more such claps; intending to stand out the storme no longer, privately hath agreed on a match with sir john villiers for hys youngest daughter franche, the mother's darling, with which the king was acquainted withall and writt to have it done before hys coming backe." and presently he says:-- "the caryadge of the business hath made such a ster in the towne as never was: nothing can fully represent it but a commedye." a letter written on the same day by sir john finet mentions the projected marriage of sir edward coke's daughter with sir john villiers, who would have £ , a year from buckingham, and be left heir of his lands, as he was already of his earldom, failing the earl's male issue. he adds that sir edward coke went cheerily to visit the queen, and that the common people said he would die lord treasurer. such gossip as that must have been anything but amusing to bacon. the coke-villiers engagement had now become almost, if not quite, a state affair. nearly three weeks later sir horace vere wrote to carleton:--[ ] "i hear nothing so much spoken of here as that of sir john villiers and sir ed. coke's daughter. my lady hatton doth continue stiff against yt, and yesterday i wayted upon my wife to my lady of northumberland's. she tould my wife that she gives yt out that her daughter is formmerlie contracted to an other and to such a one that will not be afeard to plead his interest if he be put to yt." six days afterwards a third candidate for frances coke was talked about. george gerrard wrote to the same correspondent:--[ ] "the lady hatton's daughter to be maryed to one cholmely a baronet. of late here is by all the frendes of my lady hatton a contract published of her daughter frances to the erle of oxford which was sent him to venice: to which he hath returned and answer that he will come presently over, and see her fayre eyes and conclude the what he shall thinke fit for him to doe: i have sent your lordship mis frances coke's love letter to my lord of oxford herein concluded: i believe you never read the like: thys is like to become a grate business: for the king hath shewed himselfe much in advancing thys matter for sir john villiers." he says that lady elizabeth offers to give lord oxford "besydes her daughter ... ten and thirty hundred pound a year, which will before twenty years passe bee nigh £ a yeare besydes two houses well furnisht. a greate fortune for my ld. yett it is doubted wheather hee will endanger the losse of the king's favor for so fayre a woman and so fayre a fortune." the following is frances coke's enclosed "love letter" of which gerrard believed, as well he might, that carleton "never read the like." it is evidently the work of lady elizabeth:-- "i vow before god and take the almighty to witness that i frances coke yonger daughter to sir ed. coke late lord chiefe justice of england, doe give myselfe absolutely to wife to henry ven. viscount balboke, erle of oxenford, to whom i plight my fayth and inviolate vows, to keepe myselfe till death us do part: and if even i breake the least of these i pray god damne mee body and soule in hell fyre in the world to come: and in thys world i humbly beseech god the earth may open and swallowe mee up quicke to the terror of all fayth breakers that remayne alive. in witness whereof i have written all thys with my owne hand and seald it with my owne seale (a hart crowned) which i will weare till your retourne to make thys good that i have sent you. and for further witness i here underneath sett to my name. "(signed) frances coke in the presence "of my deare mother "eliza hatton. ["_july , ._"] lady elizabeth, however, failed to effect the match. possibly the letter just quoted may have been too strong meat for oxford. even her skill in the gentle art of forgery proved unavailing. whether oxford had no fancy for the girl, or the girl had no fancy for oxford, does not appear, and perhaps other causes may have prevented the marriage; but, although he did not marry frances, he married her first cousin, lady diana, daughter of the second earl of exeter, a niece of lady elizabeth, and, like frances, both a great heiress and a beautiful woman. lord oxford was killed, a few years afterwards, at the siege of breda in the netherlands. bacon, now thoroughly frightened, both by the king and by buckingham, began to trim, and before long he turned completely round and used his influence with lady elizabeth to induce her to agree to the sir john villiers-match. he wrote a letter on the st of august to buckingham, saying that he was doing all he could to further the marriage of sir john villiers with frances coke. among other things he said:-- "i did also send to my lady hatton, coke's wife and some other special friends to acquaint them that i would declare, if anything, for the match so that they may no longer account on [my] assistance. i sent also to sir john butler, and after by letter to my lady [compton] your mother, to tender my performance of any good office toward the match." to this letter buckingham sent a very chilling reply, whereupon bacon, in his anxiety, sent yelverton in person to try to conciliate buckingham and the king, enjoining him to lie so hard and so unblushingly as to declare that bacon had never hindered, but had in "many ways furthered the marriage;" that all he had done had been to check coke's "impertinent carriage" in the matter, which he wished had "more nearly resembled the earl of buckingham's sweet disposition." yet after faithfully fulfilling this nefarious errand, yelverton failed to conciliate buckingham, for he wrote the following very unsatisfactory report to bacon:-- "the earl [of buckingham] professeth openly against you;" whereas, "sir edward coke, as if he were already on his wings, triumphs exceedingly; hath much private conference with his majesty, and in public doth offer himself, and thrust upon the king with as great boldness of speech as heretofore." things were beginning to look desperate for bacon! indeed it seemed as if affliction were about to "level the mole-hills," not now of coke's, but of bacon's pride; "to plough" bacon's heart and "make it fit for wisdom to sow her seed, and for grace to bring forth her increase," blessings which bacon had so kindly & so liberally promised to coke in a letter already quoted. about the middle of august, chamberlain wrote that frances coke was staying with sir robert coke, sir edward's son by his first wife, and that lady elizabeth was with her all day, to prevent the access of others; but that, finding her friends were deserting her, and that "she struggles in vain" against the king's will, "she begins to come about," and "upon some conditions will double her husband's portion and make up the match and give it her blessing." presently he says: "but it seems the lady hatton would have all the honour and thanks, and so defeat her husband's purpose, towards whom, of late, she has carried herself very strangely, and, indeed, neither like a wife, nor a wise woman." as chamberlain says, lady elizabeth was determined that, if she had to yield, she would be paid for doing so, and that her husband should obtain none of the profits of the transaction. it was unfortunate that that transaction should be the means of injuring her daughter whom she loved; but it was very fortunate that it might be the means of injuring her husband whom she hated. her own account of her final agreement to the marriage may be seen in a letter which she wrote to the king in the following year:--[ ] "i call to witness my lord haughton, whom i sent twyce to moove the matter to my lady compton, so as by me she would take it. this was after he had so fondly broke off with my lorde of bukingham, when he ruled your majestie's favour scarse at the salerie of a , £. after that my brother and sister of burghly offered, in the galerie chamber at whitehall, theire service unto my ladie compton to further this marriage, so as from me she would take it. thirdly, myselfe cominge from kingstone in a coach with my ladie compton, i then offered her that if shee would leave sir edward cooke i would proceed with her in this marriage." although, as chamberlain had written, lady elizabeth was now beginning "to come about," in fact had come about, her faithful friend, bacon, in his frantic anxiety to regain the favour of buckingham and the king, ordered her to be arrested and kept in strict though honourable confinement. in fact, to use a modern term, all the actors in this little drama, possibly with the exception of frances coke and sir john villiers, were prepared, at any moment, "to give each other away." according to foard,[ ] bacon was, at this time, busily engaged in preparing for the trial of another member of lady elizabeth's family, namely her stepmother, lady exeter.[ ] by the irony of fate, it happened that the two mortal enemies, coke and bacon, acted together in the matter of the incarceration of lady elizabeth; for, while the former pleaded for it, the latter ordered it. it was spent partly at the house of alderman bennet,[ ] and partly at that of sir william craven,[ ] lord mayor of london in the years and , and father of the first earl of craven. in both houses she was doubtless treated with all respect, and she must have occupied a position in them something between that of a paying-guest and a lunatic living in the private house of a doctor--not that there was any lunacy in the mind of lady elizabeth. quite the contrary! footnotes: [ ] _s.p. dom._, james i., vol. xcii, no. , rd july, . [ ] campbell, vol. i., p. . [ ] campbell, vol. i., p. . [ ] _ibid._, p. . [ ] _s.p. dom._, james i., vol. xcii, no. , nd july, . [ ] _s.p. dom._, james i., vol. xciii., no. , th august, . [ ] _s.p. dom._, james i., vol. xciii., no. , th august, . [ ] _life of sir edward coke_. by humphrey woolrych. london: j. & w.t. clarke, , pp. - . [ ] _life and correspondence of francis bacon_. london: saunders, otley & co., , p. . [ ] she was found innocent, and her accusers, sir thomas and lady lake, were imprisoned and fined. £ , to the king, and £ , to lady exeter as damages for the libel. a chambermaid who was one of the witnesses, was whipped at the cart's tail for her perjury. lady roos, the wife of lady exeter's step-grandson, and a daughter of the lakes, made a full confession that she had participated in spreading the scandal. she was sentenced to be imprisoned during the king's pleasure. [ ] _s.p. dom._, james i., vol. xciii., th october, . letter from sir gerald herbert. [ ] campbell, vol. i., p. . fn. the imprisonment of what were called "people of quality" usually took place either in the tower or in the private houses of aldermen, in those times, although they were sometimes imprisoned in the fleet. chapter vi. "of all the actions of a man's life his marriage doth least concern other people; yet of all actions of our life it is most meddled with by other people." selden. in all these negotiations, and caballings, and intriguings, the person most concerned, frances coke, the beauty and the heiress, was only the ball in the game. neither her father nor her mother nor anybody else either considered her feelings or consulted her wishes about the proposed marriage, except so far as it was to their own personal interest to do so. at last the poor girl yielded, or pretended to yield. lord campbell says, as well he may, "and without doubt, just as frances had before copied and signed the contract with lord oxford, at the command of her mother, she now copied and signed the following letter[ ] to her mother at the command of her father." "'madam, "'i must now humbly desire your patience in giving me leave to declare myself to you, which is, that without your allowance and liking, all the world shall never make me entangle or tie myself. but now, by my father's especial commandment, i obey him in presenting to you my humble duty in a tedious letter, which is to know your ladyship's pleasure, not as a thing i desire: but i resolve to be wholly ruled by my father and yourself, knowing your judgments to be such that i may well rely upon, and hoping that conscience and the natural affection parents bear to children will let you do nothing but for my good, and that you may receive comfort, i being a mere child and not understanding the world nor what is good for myself. that which makes me a little give way to it is, that i hope it will be a means to procure a reconciliation between my father and your ladyship. also i think it will be a means of the king's favour to my father. himself [sir john villiers] is not to be misliked: his fortune is very good, a gentleman well born.... so i humbly take my leave, praying that all things may be to every one's contentment. "'your ladyship's most obedient "'and humble daughter for ever, "'frances coke. "'dear mother believe there has no violent means been used to me by words or deeds.'" * * * * * this, as campbell says, has every appearance of being a letter copied from one written by her father. there is also reason for believing that coke added the postscript for a very special purpose; for the question arises how frances, who is admitted on all sides to have hated sir john villiers, could have been induced to copy and to sign this letter. was she literally forced to do so? there happens to be an answer to that question. "_notes of the villiers family._[ ] "_n.b. i.b.n._ have heard it from a noble peer, a near relation of the danvers family, and mr. villiers, brother to the person who now claims the earldom of buckingham, as his brother assumed the title, that the lady frances viscountess purbeck was tyed to the bed-poste and severely whipped into consent to marry with the duke of buckingham's brother, sir john villiers, a° , who was years after created viscount purbeck." this was written after the death of frances, but it has been accepted as true, and that may well be. it is difficult in our days to believe that a young lady could be put to physical torture by her father, until she consented to marry a man whom she loathed; but the parental ethics of those times were very different from those of our own. a man like coke would have no difficulty in persuading himself that a marriage with sir john villiers would be for his daughter's welfare, and, consequently, that a whipping to bring that marriage about would also be for her welfare. coke had often waited for the confessions of men who were in frightful agony on the rack, in the dungeons of the tower; so it must have been a mere trifle to him to await his daughter's consent to a marriage which she detested, while he whipped her, or watched her being whipped, reflecting upon the luxury of the bed-post in comparison with the agony of the rack, flattering himself that he was acting in obedience to holy scripture, and piously meditating upon the gratification he must be giving to the soul of solomon by this exercise of domestic discipline. but a reader may well wonder whether the old brute considered for a moment the worthlessness of a form of marriage obtained by torture, or the fact that such a so-called marriage could be annulled without difficulty. lady elizabeth, perceiving that her only chance left of winning the game was to over-trump her husband, and recognising that her only hope of freedom and prosperity was by consenting to the wishes of buckingham and james, wrote to the king himself, to say that she would agree to the marriage and would settle her property on her daughter and sir john villiers. eventually, "the marriage settlement," says campbell, "was drawn under the king's own superintendence, that both father and mother might be compelled to do justice to sir john villiers and his bride; and on michaelmas day the marriage was actually celebrated at hampton court palace, in the presence of the king and queen and all the chief nobility of england. strange to say, lady hatton still remained in confinement, while sir edward coke, in nine coaches,"--one man in nine coaches!--"brought his daughter and his friends to the palace, from his son's at kingston-townsend. the banquet was most splendid: a masque was performed in the evening; the stocking was thrown with all due spirit: and the bride and bride-groom, according to long established fashion, received the company at their couchée." in a footnote to _the secret history of james i._, vol. i., p. ,[ ] we read: "the scottish historian, johnstone, says that purbeck's marriage was celebrated amid the gratulation of the fawning courtiers, but stained by the tears of the reluctant bride, who was a sacrifice to her father's ambition of the alliance with buckingham's family." here is another account of the wedding, in a letter[ ] from sir gerard herbert to carleton:-- "maie it please yor. lordshippe. " ... i know not any news to write yor. lo: other than the marriadge of sir john villiers with my lord coke's youngest daughter, on monday last, beynge michailmas day at hampton courte when king queen and prince were present in the chappell to see them married. my lord coke gave his daughter to the kinge (with some words of complement at the givinge). the king gave her sir john villiers. the prince sate with her to grand dynner and supper so to many lordes and ladies, my lord canterbury, my lord treasurer, my lord chamberlayne, etc. the king dynner and supper droncke healthe to the bride, the bridgegroome stood behinde the bride; the dynner and supper. the bride and bridegroome lay next day a bedd till past a clocke, for the kinge sent worde he wold come to see them, therefore wold they not rise. my lord coke looked with a merrie countenance and sate at the dynner and supper, but my lady hatton was not at the weddinge, but is still at alderman bennettes prisonere. the king sent for her to the weddinge, but (she) desired to be excused, sayinge she was sicke. my lord of buckingham, mother, brethren, there soynes, and his sisters weare throughout day at court, my lord cooke's sonnes and there soynes, but i saw never a cecill. the sonday my lord coke was restored to his place of counsellor as before.... "yo: lo: in all service to commande "(signed) gerrard herbert. "london, this "_ oct._" lady elizabeth would not submit to being let out of prison, just for the day, in order to witness the wedding, which was to a large extent a triumph for her husband. she meant, on the contrary, to have a triumph on her own account. her intention was that one of those who had had a hand in putting her into prison--a prison which in fact was a comfortable house--should come to take her out of it; and she was determined to be escorted from her place of punishment, not as a repentant criminal, but as a conquering heroine. in a letter to carleton[ ] chamberlain says:-- "the king coming to towne yesterday it was told me that the earle of buck, meant to go himself and fetch 'lady elizabeth' as yt were in pomp fr. william corner (where she hath ben so long committed), and bring her to the king, who upon a letter of her submission is graciously affected towards her. ... seeing her yielding and as it were won to geve her allowance to the late marriage," the king will "give her all the contentment and countenance he can in hope of the great portion she may bestow upon" buckingham's brother, sir john villiers; "for there is little or nothing more to be looked for from sr. ed. cooke, who hath redemed the land he had allotted his daughter for , £ so that they have already had , £ of him paide down.... she layes all the fault of her late troubles upon the deceased secretarie," winwood, "who not long since telling her brother that for all her bitter speeches they two [lady elizabeth and her husband] shold become goode frends again. she protested she wold sooner be frends with the devill." lady elizabeth was so much in the king's good graces that aspirants for office tried to win her influence with james and buckingham in their favour. chamberlain, in the letter quoted above, expresses the wish that she might endeavour to obtain for carleton the post of secretary of state, which had just then fallen vacant through the death of winwood. in a letter[ ] written a fortnight later, however, chamberlain says:-- "your father savile is gon into kent to his daughter salley, the day before his goings i met him and wisht him to applie the lady hatton, whom he had alredy visited but moved her in nothing because the time was not fit but she meant to do yt before he went. some whisper that she is alredy ingaged and meanes to employ her full force strength and vertue for the l. hawton or hollis, who is become her prime privie counsailor and doth by all meanes interest and combine her with the lady of suffolke and that house. a man whom sir edward cooke can no wayes indure, and from whose company he wold faine but cannot debarre her." obviously a very sufficient reason for liking him and espousing his cause. lady elizabeth had fairly outwitted her husband; but, as will presently be seen, she had not yet quite done with him. another account of her liberation is to be found in _strafford's letters and despatches_:--[ ] "the expectancy of sir edward's rising is much abated by reason of his lady's liberty, who was brought in great honour to exeter house by my lord of buckingham, from sir william craven's, whither she had been remanded, presented by his lordship to the king, received gracious usage, reconciled to her daughter by his majesty, and her house in holborn enlightened by his presence at dinner, where there was a royal feast: and to make it more absolutely her own, express commandment given by her ladyship that neither sir edward coke nor any of his servants should be admitted." here is another account[ ] of the same banquet, as well as of one given in return by buckingham's mother, who was still hoping that lady elizabeth would increase sir john villiers' allowance:-- "the lady hatton's feast was very magnificall and the king graced her every way, and made foure of her creatures knights.... this weeke on wensday [lady compton] made a great feast to the lady hatton, and much court there is between them, but for ought i can heare the lady hatton holdes her handes and gives not" (the original is much torn and damaged here) "out of her milke so fouly [fully] as was expected which in due time may turn the matter about againe.... there were some errors at the lady hatton's feast (yf it were not of purpose) that the l. chamberlain and the l. of arundell were not invited but went away to theyre owne dinner and came backe to wait on the king and prince: but the greatest error was that the goodman of the house was neither invited nor spoken of but dined that day at the temple." camden's account of this dinner (ed. , vol. ii., p. ), although very abrupt, is to the point: "the wife of sir ed. coke _quondam_ lord chief justice, entertained the king, buckingham, and the rest of the peers, at a splendid dinner, and not inviting her husband." in a letter to carlton[ ] john pory said of this dinner: "my lo. coke only was absent, who in all vulgar opinions was there expected. his majesty was never merrier nor more satisfied, who had not patience to sit a quarter of an hour without drinking the health of my lady elizabeth hatton, which was pledged first by my lord keeper [bacon] and my lord marquis hamilton, and then by all the gallants in the next room." this exclusion from her party was a direct and a very public insult to coke on the part of his wife, and, through consent, on that of the king also. all coke had gained by his daughter's marriage with sir john villiers was restoration to the privy council. as he had made up his mind to take his daughter to market, he should have made certain of his bargain. this he failed to do. as has been shown, he promised £ , down with her and £ , a year. this buckingham did not consider enough; but coke refused to promise more, declaring that he would not buy the king's favour too dear. in a letter to carleton, chamberlain says that, if he had not "stuck" at this, coke might have been lord chancellor. as it was, he incurred the whole odium of having sold his daughter, while his wife, who had gained the credit of protesting against that atrocious bargain, quietly pocketed its price in the coin of royal favour. lady elizabeth not only embroiled her own family, but also brought discord about her affairs into the family of another, as may be inferred from the following letter:--[ ] "elizabeth, lady hatton, to carleton. "my lorde, "i understande by your letter the quarrell of unkindness betweene yourself and your wife, but having considered the cause of the difference to proceed only from your loving respect shewne towards me, i hope that my thankfulle acknowledgements will be sufficient reconcilement to give you both proceedings for the continuance of your wonted goode wille and affectione ... even though i understande by your letter you thinke women to be capable of little else but compliments. wherefore to express a gracious courtesie for your kindness as in the few wordes i am willing to utter you may assure yourselfe yt my desire is to remayne "your assured loving frend "(signed) eliza hatton. "hatton house "_ th march ._" one naturally wonders whether, if carleton showed this letter to his wife, it would tend to heal "the quarrell of unkindness" between them, or to make it worse. which effect was intended by the writer of the letter is pretty evident. this little epistle might have been written by becky sharpe. footnotes: [ ] _coles' mss._, vol. xxxiii. p. . [ ] _coles' mss._, vol. xxxiii., p. . (brit. museum mss. no. .) [ ] longmans & co., . [ ] _s.p. dom._, james i., vol. xciii., no. , th october, . [ ] _s.p. dom._, james i., vol. xciii., no. , st oct., . [ ] _s.p. dom._, james i., vol. xciv., th november, . [ ] vol. i., p. . [ ] _s.p. dom._, james i., vol. xciv., no. , th november, . chamberlain to carleton. [ ] _s.p._, xciv., no. . [ ] _s.p. dom._, james i., vol. xcvi., no. . chapter vii. "what is wedlock forced, but a hell? "--_henry vi._, i., v., . little is recorded of the early married life of sir john and lady villiers. before it began they had both been mere pawns in the game, and pawns they remained for a good many years afterwards. if before her marriage the career of lady villiers had lain in the hands of her father and her mother; after her marriage it was, for a time, in the hands of her brother-in-law, buckingham, as the career of sir john always had been and continued to be during the life of buckingham. in the _secret history of james i_.[ ] we read concerning buckingham: "but i must tell you what got him most hatred, to raise brothers and brothers-in-law to the highest ranks of nobility, which were not capable of the place of scarce a justice of the peace; only his brother, purbeck, had more wit and honesty than all the kindred beside and did keep him in some bounds of honesty and modesty, whilst he lived about him, & would speake plaine english to him." if this be true, there must have been some good in sir john; but buckingham was impervious to his advice and treated him just as he pleased. it is possible, again, that lady villiers, without having any of the affection which a wife ought to have for a husband, may have had a sort of respect for him as a man of probity, much older than herself, who treated her well and even kindly. george villiers, a mushroom-grown duke himself, having made the king create his mother countess of buckingham, bethought him of his eldest brother and determined to make him a peer. and not only that. he also conceived the idea of squeezing some more money out of his brother's mother-in-law for him, by offering her a peerage, for the cash thus obtained. it was suggested to her that she might be made countess of westmorland; but "she refused to buy the title at the price demanded."[ ] indeed, lady elizabeth was ready to fight anybody and everybody. on the one hand, she resisted the attempts of the almighty buckingham to bleed her still further for sir john villiers, and, on the other, she wrote to the king concerning her husband: "i find how desirous he is to rubb up anie thing to make ill bloode betwixt my sonne villiers & myselfe."[ ] meanwhile she prosecuted her husband in the star chamber. mr. brant wrote to carleton: "... the ladie hatton prevayleth exceedingly against her husband and hath driven him into a numnesse of on side, which is a forerunner of ye dead palsie, though now he be somewhat recovured." in may, , lady elizabeth was informed that, if she would give that isle, no longer an island, the isle of purbeck, which was her property, to her son-in-law, she should be made countess of purbeck and he viscount purbeck; but she refused to exchange good land for an empty name. however, in july, sir john villiers was created baron villiers of stoke (stoke pogis) and viscount purbeck. this heaping up of peerages in the villiers family, in addition to the number of valuable posts, and especially high ecclesiastical posts, obtained by buckingham for his friends, or for anybody who would bribe him heavily enough to obtain them, led to much murmuring and ill-feeling among those whom he did not thus favour, and greatly irritated the populace. there was no apparent reason why sir john villiers should be ennobled, and his peerages were looked upon as a glaring piece of jobbery. the court also, at this time, was becoming unpopular. buckingham was filling it with licentious gallants and with ladies of a type to match them. at whitehall, there was a constant round of dissipation and libertinism. besides the very free and easy balls, masques and banquets, there were what were called "quaint conceits" of more than doubtful decency, and there was much buffoonery of a very low type. in the _secret history of the court of james i._ it is recorded that, at this time, namely, about or , there were "none great with buckingham but bawds and parasites, and such as humoured him in his unchaste pleasures; so that since his first being a pretty, harmless, affable gentleman, he grew insolent, cruel, and a monster not to be endured." lord purbeck held the appointment of master of the robes to prince charles, and he seems to have lived in the palace of the prince; for, even as late as , we read of lady purbeck remaining in "the prinses house."[ ] in chamberlain wrote to carleton[ ] that when buckingham was overpressed by business, he handed over suitors to his brother purbeck. on the th of january, , a letter[ ] of nethersole's states that purbeck had resigned his post of master of the robes, in order to become master of the horse to the prince. at some date between that of his marriage in the year and , purbeck was received into the catholic church, by father percy, alias fisher, a jesuit. this step does not appear in any way to have affected his position at court. in a manuscript in the library of the large jesuit college of stonyhurst,[ ] in lancashire, it is stated that "the viscount de purbeck (sic) brother of the marquis of buckingham, having been converted to the catholic faith and reconciled to the holy church, by father john persens, s.j., betook himself to the countess, his mother, and gave her so good an account of the said father, and of the consolation he had received of him, that she greatly desired to speak to him, and sending him to call the father, she heard him discourse fully of the catholic faith, &c." in _laud's diary_ there is an entry: " , april . being the tuesday in easter week, the king sent for me & set me into a course about the countess of buckingham, who about that time was wavering in point of religion." and again: "may . the conference[ ] between mr. fisher [percy] a jesuit, & myself, before the lord marquis of buckingham, & the countess, his mother." there are people who are of opinion that for a protestant to become a catholic is an almost certain proof of madness; and such will rejoice to hear that, some time after lord purbeck had been received into the catholic church, he either showed, or is reputed to have shown, signs of lunacy. some authorities doubt whether purbeck was ever out of his mind; but on the whole the weight of evidence is against them. yet there are some rather unaccountable incidents in their favour. again, when anybody is reputed to be mad, exaggerated stories of his doings are very likely to be spread about. even in these days of advanced medical science, it is sometimes difficult to decide whether a patient is insane or not, and it is quite possible to suffer from very severe fits of depression without being the subject of maniacal melancholia, or from very violent fits of passion without being a madman. there is just a possibility, too, that buckingham may have wished to keep his brother quiet, or to get him out of the way, because that brother "would speake plaine english to him" about his licentious conduct and other matters, as we have already read. when a friend or a relative tells a man that he is behaving scandalously, the recipient of the information is apt to say that his informer is "cracked." the earliest hint of lord purbeck's insanity was given in . "the lord viscount purbeck went abroad in the latter end of may , under colour of drinking the waters of spaw, but in fact, as camden tells us, to hide his being run mad with pride."[ ] the strongest evidence of anything like actual madness is in a letter[ ] from chamberlain to carleton, written on th june, . it may, however, be mere gossip. "the lord of purbecke is out of order likewise, for this day feurtnight getting into a roome next the street in wallingford house, he beat down the glasse windowes with his bare fists and all bloudied &c." if this be true, may it not be possible that he was trying to break his way out of a room in which buckingham had locked him up on the pretence that he was insane? of wallingford house the same correspondent says in another letter: "buckingham has bought lord wallingford's house at whitehall, by paying some money[ ] making sir thomas howard, visct. andover, and some say, releasing the earl and countess of somerset." in august, , the duchess of buckingham--this would be buckingham's wife and not his mother, the countess of buckingham--wrote to conway:-- "sir,[ ] "my sister and myselfe have seene a letter writt from you to sir john keyesley concerning my brother purbeck, by his ma^ties command and doubt not but his ma^tie hath bin informed with the most of his distemper. wee have bin with him the moste parte of this weeke at london, and have found him very temperate by which wee thinke hee is inclining towards his melancholye fitt, which if hee were in, then hee might be perswaded any wayes, which at this instant hee will not, he standeth so affected to the cittee and if there should be any violent course taken with him, wee thinke he would be much the worse, for it, and drive him quite besides himselfe. therefore wee hould it best to intreat sir john keysley and som other of his friends to beare him companie in london and kepe him as private as they can for three or four dayes till his dull fitt be upon him, and then hee may bee had any whither. this in our judgment is the fittest course at this present to be taken with him which we desire you will be pleased to let his ma^ty. knowe and i shall rest. "your assured loving friend, "(signed) k. buckingham." from this it would appear either that when purbeck was in one of his "melancholye fitts," he was quite tractable, but, at other times, he was rather unmanageable; or that, when well, he refused to be ordered about, but when ill, was too poorly to make any resistance. conway[ ] replied as follows:-- "most gratious, "i have represented to his ma^tie. your letter, and he doth gratiously observe those sweete and tender motions which rise in your minde, suitable with your noble, gentle and milde disposition, in which you excell your sex: especially where force or restraint should be done to the brother of youre deare lorde. "and i cannot expresse soe finely as his ma^tie. did, how much he priseth and loveth that blessed sweetness in you, and you in it. but i must tell your grace his ma^tie. prays you, not to thinke it a little distemper which carryed him to those publique actes, and publique places, and to consider how irremediable it is, when his intemperance hath carryed him to do some act of dishonour to himselfe, which may, and must, reflect upon his most noble brother, beyond the follies and disprofits which he dayly practiseth. and that your grace will not only bee to suffer some sure course to bee taken for the conveying of him into the country, but that you will advise it and assist it with the most gentle (yet sure) wayes possible. that he may be restrayned from the power and possibility of doing such acts as may scorne him, or be dangerous to him: which these wayes of acting can never provide for. for his ma^tie. sayeth there cannot bee soe much as 'whoe would have thought it,' which is the fooles answere, left for an error in this: for whoe would not thinke that a distempered minde may doe the worst to be done. his ma^tie. therefore once more prayes you that his former directions to sir john ersley may bee put in execution and the safest and surest for the goode of the unfortunate noble person, and honor of youre deare lorde, his ma^ties. dearest servant. "this is that i have in charge. my faith and duty calls for this profession that noe man is more bound to study and endeavour the preservation of the honor and good of those that have interest in my noble patron than myselfe: nor noe man more bound and more ready to obey your commandments than "your grace's most humble servant. "aldershot. august ." the chief object aimed at by conway and, as will be seen presently, by the king, was to prevent any scandal or gossip about purbeck's behaviour injuring "his ma^ties. dearest servant," buckingham. purbeck's personal interests evidently counted for very little, if for anything. footnotes: [ ] p. [ ] woolrych's _life of sir ed. coke_, p. . his authority for this statement is camden, ann. jac., p. . [ ] letter quoted by woolrych. [ ] _s.p. dom._, james i., vol. clxxxiii., no. . [ ] _s.p. dom._, james i., vol. cxii., no. . [ ] _s.p. dom._, james i., no. . [ ] stonyhurst mss., _angliæ_, vol. vii. and _records of the english province of the society of jesus_, series i., p. . [ ] at a subsequent conference king james was present (_diary of the english college at rome. the names of the alumni,_ no. ). also _records of the english province of the s.j.,_ series i., p. . the countess of buckingham subsequently became a catholic, and her son, the duke, obtained leave from the king for father percy to "live on parole in her house," which became his home in london for ten years (_ibid._, p. ). [ ] _biog. brit_., notice of sir e. coke. footnote. [ ] _s.p. dom._, james i., vol. cxxxi, no. . [ ] _s.p. dom._, james i., vol. cxxvii., no. . chamberlain to carleton, th january, . james i., - , p. . the price paid is said to have been £ , . see gardiner, vol. iv., chap. xl., p. . lord wallingford was made earl of banbury, and the subsequent claim to this title became as curious as that to the title of purbeck, which will be shown later. [ ] _s.p. dom._, james i., vol. cli., no. . [ ] _s.p. dom._, james i., vol. cli., no. , th august, . chapter viii. " ... wed to one half lunatic." _taming of the shrew_, ii., i. poor purbeck seems to have had many amateur keepers. the king gave orders to a sir john hippisley to remove him from the court, in september, ; and on the and sir john wrote to conway:--[ ] "noble sir, "i have received the king's command and your directions in your letters to bring my lord of purbecke out of london which i have done and have made no noise of it and have done all i could to give no scandal to the duke or viscount: he is now at hampton court, but is not willing to go any further till the king send express commande that he shall not staye here. "sir i have obeyed all the king's commandes and that without any scandal to the duke,"--always the point of main importance--"now my humble request to you is that i may be free from entering any farther in this business and that i may come and kiss his maj^tes hand for now i am fit.... there is one mr. aimes that knoweth my lord of purbecke and fitte to be employed by rate he hath power to persuade him. i beseech you grant me fair of this and you shall have it me "to be your faithfull servant ever to be commanded "(signed) jo: hippisley. "hampton court "this of _september_." from this it is very clear that hippisley did not want to have anything more to do with a disagreeable business; and the question presents itself whether it was because he disliked acting as keeper to a lunatic, or because he did not think purbeck so mad as was pretended, if mad at all, and objected to having a hand in a shady transaction. in the same month, the king wrote himself to purbeck.[ ] the letter is almost illegible; but its purport appears to be to urge lord purbeck, out of consideration for buckingham, as well as for his own good, to go to, and to stay at, whatever place might be appointed for him by the earl of middlesex. during the summer of the following year ( ), purbeck seems to have recovered his sanity; but only for a time, although a considerable time. chamberlain wrote[ ] to carleton:-- "my very sweete lord: " ... the viscount purbecke followed the court a good while in very goode temper, and there was speech of making him a marquis that he might go before his younger brother but i heare of late he is fallen backe to his old craise and worse.... "yo^r lo^ps most assuredly "at command, "(signed) john chamberlain." this shows that, if purbeck was insane, his insanity was intermittent; and it could not have been chronic; for in later years we read that he was managing his own affairs and that he married again, some time after the death of frances. from the following letter, written by lady purbeck to buckingham, and unfortunately undated, it would seem that buckingham had driven her from her home, when she had become the subject of a certain amount of vague scandal, but, so far as was then known, or at least proved, of nothing more; and that he had contrived that she should have none of the wealth which she had brought to her husband. as will be seen, she was apparently penniless, except for what she received from her mother or her friends. "my lord[ ]:--though you may judge what pleasure there is in the conversation of a man in the distemper you see your brother in; yet, the duty i owe to a husband, and the affection i bear him (which sickness shall not diminish) makes me much desire to be with him, to add what comfort i can to his afflicted mind, since his only desire is my company; which, if it please you to satisfy him in, i shall with a very good will suffer with him, and think all but my duty, though i think every wife would not do so. but if you can so far dispense with the laws of god as to keep me from my husband, yet aggravate it not by restraining me from his means, and all other contentments; but, which i think is rather the part of a christian, you especially ought much rather to study comforts for me, than to add ills to ills, since it is the marriage of your brother makes me thus miserable. for if you please but to consider, not only the lamentable estate i am in, deprived of all comforts of a husband, and having no means to live of; besides falling from the hopes my fortune then did promise me; for you know very well, i came no beggar to you, though i am like so to be turn'd off. "for your own honour and conscience sake, take some course to give me satisfaction, to tye my tongue from crying to god and the world for vengeance, for the unwilling dealing i have received, and think not to send me again to my mother's, where i have stayed this quarter of a year, hoping (for that mother said you promised) order should be taken for me; but i never received a penny from you. her confidence in your nobleness made me so long silent; but now, believe me, i will sooner beg my bread in the streets, to all your dishonours, than any more trouble my friends, and especially my mother, who was not only content to afford us part of the little means she hath left her, but whilst i was with her, was continually distempered with devised tales which came from your family,"--this refers to certain scandalous stories about her own conduct--and withal lost your good opinion, which before she either had, or you made shew of it; but had it been real, i can not think her words would have been so translated, nor in the power of discontented servants' tales to have ended it. "my lord, if the great honour you are in can suffer you to have so mean a thought as of so miserable a creature as i am so made by too much credulity of your fair promises, which i have waited for performance of almost these five years: and now it were time to despair, but that i hope you will one day be yourself, and be governed by your own noble thoughts, and then i am assured to obtain what i desire, since my desires be so reasonable, and but for mine own, which whether you grant or not, the affliction my poor husband is in (if it continue) will keep my mind in a continual purgatory for him, and will suffer me to sign myself no other but your unfortunate sister "f. purbeck." this letter may be taken as evidence of purbeck's lunacy. on the other hand it might possibly, if not plausibly, be argued that it may only mean that he was in a very bad state of bodily health accompanied by great mental depression. some readers of these pages may have experienced the capabilities of a liver in lowering the spirits. as lady purbeck says, her mother had now "lost the good opinion" of buckingham, and undoubtedly this was because she had refused to increase his brother's allowance. so early as th november, , john pary wrote to carleton,[ ] regretting that he had not applied to lady bedford to use her influence in order to obtain a certain appointment, instead of applying to lady elizabeth, who had fallen out with buckingham, and now had no influence whatever with him. lady elizabeth, therefore, after having risen by her own skill to be one of the most influential women in england--perhaps the most influential--and that in the face of enormous difficulties, was beginning to fall from her high estate. and besides the bitter disappointment of the loss of influence and of royal smiles, a grievous and humiliating family sorrow was in store for her. these pages do not constitute a brief on behalf of lady purbeck. it is desired that they should do her justice--full justice; but too little is recorded of her personal character to permit any attempt to portray it in detail, or even to make a bold sketch of its principal features. of her circumstances it is much easier to write with confidence. we have already learned much about them. we have seen that she was brought up in an atmosphere of perpetual domestic discord, ending in a physical struggle between her father and her mother for the possession of her person: that she was afterwards flogged until she consented to make a marriage contract with a man much older than herself, whom she disliked intensely--a form of marriage which was no marriage, as her will for it was wanting and she was literally forced into it, if any girl was ever forced into a marriage. an old husband hateful to a young wife would become yet more unattractive if he became insane, or eccentric, or even an irritable invalid. then his change of religion would most likely annoy her extremely. whether a husband leaves his wife's religion for a better or a worse religion, it is equally distasteful to her. her condition would be made still further miserable when she was turned out of her own home, and practically robbed of her own possessions, luxuries and comforts. from what we have seen of her mother, it is difficult to believe that she was a tenderhearted woman, to whom a daughter would go for consolation in her affliction: nor could that daughter place much confidence in a mother who had once deceived her with a forged letter. to her father, who had treated her with great brutality and had sold her just as he might have sold a beast among his farm stock, she would be still less likely to turn for comfort or for counsel. add to all this that, as the wife of an official in prince charles's household, and as the sister-in-law of the reigning favourite, she was a good deal at the court of james i. at a time when it was one of the most dissolute in europe; and it will be easy to recognise that her whole life had been spent in unwholesome atmospheres. when we consider the position of a very beautiful girl of between twenty-one and twenty-four, who had had such an education, had endured such villainous treatment, and was now placed under such trying conditions, we can but feel prepared to hear that some or other of the usual results of bad education, bad treatment, and bad surroundings exhibited themselves, and surely if trouble, and worse than trouble, was ever likely to come of a marriage that had been an empty form, lady purbeck's was one after which it might be expected. and it came! near cripple gate, at the north wall of london, in october, , was born a boy named robert wright. more than a century later the vicar of the parish was asked to refer to his registers about this event, and he sent the following reply:--[ ] "london, _april ._ sir, "i have searched my parish register according to your directions and have found the following entry concerning robert wright. "christening in october . "robert, son of john wright, gentleman, of bishopthorpe in yorkshire, baptised in the garden house of mr. manninge at the upper end of white cross street ... th. "i am, sir, "your very humble servant, "will nicholls, "vicar of st. giles's cripplegate." the father of this boy was, in reality, sir robert howard, the fifth son of the earl of suffolk, the earl to whose vigilance the discovery of the gunpowder plot is attributed by some authorities. but suffolk had incurred the enmity of buckingham, had been deprived of the office of lord treasurer, had been tried for peculation in the discharge of it, and then condemned in the star chamber to imprisonment in the tower and a fine of £ , . when he was liberated, he was told that two of his sons, who held places in the king's household, were expected to resign them; but suffolk, in very spirited letters to the king and to buckingham (_cabala_, pp. , ), protested against this. the whole family, therefore, was in bad odour at court and with buckingham at this time. sir robert howard was a brother of the first earl of berkshire, who married a niece of lady elizabeth hatton. it may possibly have been through this connection by marriage that sir robert howard became acquainted and intimate with lady purbeck; and, to make a long story short, let it be observed here that, in relation to the boy who was christened robert wright, lady purbeck had had what, among the lower classes, is euphemistically termed "a misfortune." footnotes: [ ] _s.p. dom._, james i., vol. cliii., no. . [ ] _s.p. dom._, james i., vol. clii, no. . [ ] _s.p. dom._, james i., vol. clxx., no. , th july, . [ ] _cabala, sive scrinia sacra_, etc., p. . [ ] _s.p. dom._, james i., vol. ciii., no. . [ ] _coles' mss._, vol. xxxiii., pp. , . chapter ix. "the first thing we do, let's kill all the lawyers." _henry vi._, , iv., . although robert wright was baptised in october, , the date of his birth is uncertain. he may have been born many months before his baptism; but his being christened at a private house rather points the other way. anyhow, proceedings were instituted against sir robert howard and lady purbeck, long before the child was christened. in _the diary of archbishop laud_ occurs the following entry for the year :-- "_januar. . friday._ the business of my _lord purbeck_, made known unto me by my lord duke." this business of my lord purbeck may refer exclusively to his insanity, or reputed insanity; but it seems more probable that it has reference to the howard-purbeck scandal. a letter[ ] from the lord keeper, williams, bishop of lincoln, to buckingham, and written on th march, , shows that the proceedings against sir robert howard and lady purbeck were in full swing at that date. "may it please your grace, "sir robert howard appeared yesterday, and continues obstinate in his refusal to swear. when we came to examine the commission for our power to fine him for his obstinacy, we found, that sir edward coke (foreseeing, out of a prophetical spirit, how near it might concern a grand-child of his own), hath expunged this clause (by the help of the earl of salisbury) out of the commission, and left us nothing but the rusty sword of the church, excommunication, to vindicate the authority of this court. we have given him day until saturday next, either to conform, or to be excommunicated. she hath answered wittily, and cunningly, but yet sufficient for the cognisance of the court: confesseth a fame of incontinence against her and howard; but saith, it was raised by her husband's kindred. i do not doubt, but the business will go on well; but (peradventure) more slowly, if howard continue refractory, for want of this power to fine and amerce him." that lady purbeck "answered wittily," or, as would now be said, "cleverly" in court, is not to be wondered at; for was she not the daughter of a father who had been the cleverest barrister of his day, and of a mother who was more than a match for that cleverest of barristers? a couple of days later the same correspondent wrote[ ] to the duke: "for your brother's business, this is all i have to acquaint your grace with: sir robert howard appeared, yesterday, at lambeth, pretended want of council (the doctors being out of town) desired respite until to-morrow, and had it granted by my lord's grace. most men think he will not take his oath at all; i do incline to the contrary opinion, because, to my knowledge, he hath sent far and near, for the most able doctors in the kingdom, to be feed for him, which were great folly, if he intended not to answer. he is extreamly commended for his closeness and secrecy by the major part of our auditors (the he and she good-fellows of the town,) and though he refuseth to be a confessor, yet he is sure to dye a martyr, and most of the ladies in town will worship at his shrine. the lady hatton, some nine days since was at stoke, with the good knight her husband, for some counsel in this particular; but he refused to meddle therewithal, and dismist her ladiship, when she had stayed with him very lovingly half a quarter of an hour." there had been some sort of reconciliation between coke and lady elizabeth in july, , says woolrych in his life of coke, "a reconciliation effected through the mediation of the king." it was not, however, cordial; for "we have good reason to suppose that they lived apart to the day of coke's death," says campbell. at any rate they were now on speaking terms, though that was about all; for, as we have just seen, coke refused to meddle in a matter upon which he was eminently qualified to give an opinion, and he got rid of his wife after an interview of seven minutes and a half, instead of giving her the leisurely and lengthy advice and instructions which were the least that she might have expected from him. sympathy, of course, she could not have hoped for. the proceedings against the two delinquents would appear to have been in abeyance during the rest of the year; but in january, , sir john coke--the secretary of state, not one of the cokes of sir edward's family--wrote[ ] to buckingham, saying that the king, although so ill as scarcely to be able to sign his name, had put it to the warrant sent by the lord chief justice for authority to examine into lady purbeck's business. this warrant, however, james either issued with certain qualifications, or else privately advised buckingham only to act upon with prudence, as may be inferred from the following letter,[ ] written on february the th, by buckingham to the lord chief justice:-- "i have moved the p. for a warrant from his ma^tie for the commitment of sir ro. howard and my sister purbeck, but his ma^tie hath out of his gracious and provident care of me dissuaded me in this lest upon it coming to a publique hearing it might be thought that i had gained power more by the way of favour than by the wayes of justice.... i desire you to acquaint this bearer mr. innocent lanier all the particulars of this matter for i know him to be very honest, and discreete and secret." the part of the letter immediately following is illegible, but presently it goes on to say that lanier[ ] is much trusted by his brother purbeck; that lanier will not otherwise be able to keep his brother with him; and that, if he leaves, sir robert and lady purbeck "by their crafty insinuations will draw from him speeches to their advantage." now, if purbeck were still insane, or anything near it, no "speeches drawn from him" could have had any effect for the advantage of lady purbeck and sir robert. and it is clear from this letter that lady purbeck was even at that time on good terms with her husband and able to influence him. a reader might have been tempted to imagine that purbeck's "melancholy fitts" of insanity were the result of misery about his wife's infidelity; but, if she could still "draw from him speeches to her advantage," this cannot have been the case. the prosecution of lady purbeck was pretty clearly at the instigation of buckingham and not of purbeck. there is just a possibility that purbeck had refused to proceed against her, and that buckingham represented him as mad in order to act in his place, as his brother, and divorce lady purbeck; although such a theory is not supported by strong evidence. there is, however, this evidence in its support, that purbeck acknowledged the boy christened robert wright as his own son some years later. it is true that, fifty years afterwards, in a petition to the house of lords[ ] by lord denbigh against a claim made by a son of robert wright, it is stated that lord and lady purbeck had not lived together as man and wife for two years before the birth of robert wright; and that lord purbeck "was entrusted in the hands of physicians for the cure of a melancholy distemper, occasioned by the cruelty and disorders of his wife." but this claimed absence of two years, or anything approaching two years, is very questionable, if not very improbable; and although there is not much doubt as to the real parentage of robert wright, purbeck may have lived with his wife sufficiently near the birth of the boy to imagine himself his father. indeed, as the following letter will show, she was so far at court, as to be living in prince charles's house so late as february, , a year after the birth of the boy. moreover, as we have seen, lord purbeck held office in prince charles's household, and from this it might be inferred that purbeck and lady purbeck were then together. this is the more likely because in the following letter buckingham expresses a fear that his "brother will be also every day running to her and give her occasion to worke on him by the subtlty of her discourse." and if the husband and wife had access to each other when the proceedings against the latter had gone so far, they are much more likely to have been together during the year preceding the birth of the boy. all this only affects the question whether purbeck discredited his wife's fidelity. nothing has been said above in favour of the theory that she was faithful. buckingham experienced considerable difficulties in the prosecution of lady purbeck. on th february, , he wrote[ ] from newmarket to the lord chief justice:-- "my lord, "i understande you are not yet resolved to committ my sister purbeck who (if she be at libbertie) will be still plotting and devising with her ill counsellors to cover and conceal the truth and fowlness of her crime and my brother will be also every day running to her and give her occasion to worke on him by the subtlty of her discourse. it is known that his ma^tie was tender (at the first mention of this business) of the hande of a lady of her quallity but sure [if] he hath fully understood the proofs and truth of her fault and how dishonorably she hath carryed herself he would have no more support showen to her than to an ordinary lady in the like case for that she hath by her ill carriage forfyted that hande." things were not going so well now as they had been with buckingham. within twelve months he was to be impeached in the house of commons; and, although still high in the royal favour, his king may not have been so completely his servant at this time as he had been formerly. buckingham continues:-- "it is likewise very unfit she should remayne in the prinses house for defying which i thinke much aggravates her crimes and his highness often speaks in distast of her continuance there. you are well acquainted with the proof which is against her, so as i shall not nede to tell you how much it reminds me to be carefull in the prosecution of her faulte but i assure you there is nothing that more sollisits my minde. i ... thanke you for the paynes you have always taken in this business, which my earnest desire is to have to be fully discovered and that you will for much oblige me by the continuance of the care and diligence therein as that she may be tymely prevented in her cunning endeavours to hinder the discovery of the truth of the facts whereof she stands justly accused which (in my opinion) cannot be done but by her present commitment. "and sir, i rest, "your very loving friend. "upon syght of the pregnancy of the proofes and the guiltiness of sir rob. howard and my sister, i desire that you will committ them to prison with little respect, from where i heare sir rob. howard is, for an alderman's house is rather an honour than disparagement to him and rather a place of entertainment to him than a prison." it will be observed that, although the accused persons had not yet been tried, buckingham wished them to be put into a place of punishment; a place of mere detention would not satisfy him. lanier, who, as buckingham said in a letter quoted above, was much trusted by his brother, seems to have been trusted by purbeck without reason, as he was evidently in the employment of buckingham. a letter[ ] written by buckingham to coventry, the attorney-general, and to heath, the solicitor-general, contains the following:-- "i perceive by your paper i have read how much i am beholding, and do also understand by innocent larnier and others of the persons themselves and my lo: chiefe justice have taken in the business concerning the lady purbeck for which i thanke you:... but i did hope you would have more discovered before this.... i desire you to say what you think fitt to be done in the matter of the divorce of my brother and to notify me your opinion thereupon and (if you thinke it fitt to be proceeded in that) what is the speedyest worke that may be taken therein." it was probably of this letter that buckingham wrote[ ] to heath, the solicitor-general, on th february, , from newmarket:-- "i have written a letter to yourself and to mr. attorney regarding the business of the lady purbeck showing that i desire you principally only to aggravate her crimes that the lady by my humble and your like kind favour may yet be kept in prison, before the returne to towne, for other my brother who hopes to be going soune will not be kept from her and she will (if he should meet with her) so worke on him by her subtilty and that shee will draw from him something to the advantage of her dishonourable cause and to her end." here again is evidence that purbeck "will not be kept from" his wife; and that, if they meet "shee will draw something to the advantage of her" case in the divorce suit. in what form could this something come? is it possible that buckingham may have thought that she might induce purbeck to appear as a witness in her favour? or that she might persuade him to stop the suit if he should happen to be sane enough to do so when it came on? the next letter has an interest, first, because it shows that lady purbeck's child was really in the custody of buckingham. nominally it was probably in that of purbeck; but, if purbeck as a lunatic was in the custody of buckingham, what was in purbeck's custody would be in buckingham's custody. presently, however, we shall hear of the child being with its mother in her imprisonment at the house of an alderman. _innocent lanier to buckingham_.[ ] "may it please your grace, "appon my returne to london, i presently repayred to my lo: chiefe justice, where i found mr. attorney and mr. solicitor.... i have heer inclosed fore your grace ther letter which before it was sealed they showed mee, being something contrary to their resolution last nyghte, w^ch was, to have sent for sr. ro: howard this morning, and so to comitt him closs in the fleett, but of this i presume ther letter will give yor. grace such satisfaction that i shall need neither to write more of it, nor of what is yett past. they much desier yor. grace's coming to towne wch. i hope wilbe speedy as it wilbe materiall. i finde them resolved to deale roundly in this busnes as yor. grace desiers and are this morning in the examination of divers witness the better to inform themselves agaynst my ladies coming this afternoone. the next day, they intend to fall uppon lambe and frodsham. my lady uppon the receipt of my lo: chiefe justice letter is something dismayed but resolved to prove a new lodging, and new keepers. the childe, and nurse, must remayne with us till farther directions, having nothing more at this present to aquaynt yor. grace of, wth. my humblest duty i take leave. "yor. grace's most humble and "obedient servant, "(signed) i. lanier. "denmark house. "_feb. , ._" "_enclosed_. att. gen. coventry and sol. gen. heath to buckingham. "have consulted with sir henry martin on lady purbeck's business, and think the best plan would be to have the case brought before the high commission court, which can sit without delay, in the vacation, and when the crime is proved there, the divorce can be obtained by ordinary law. think it unadvisable to send the culprits to prison, as it is unusual for persons of their rank but advise that they may be confined in the houses of aldermen, where in fact they would probably be more closely restrained than in prison." the last statement sounds curious; especially as we saw, a few pages ago, that buckingham wrote: "an alderman's house is rather an honour than disparagement," and "rather a place of entertainment than a prison." buckingham now sought a fresh weapon against his sister-in-law. a couple of scoundrels, mentioned in lanier's letter, and named frodsham and lambe, men suspected of sorcery, offered to give evidence to the effect that lady purbeck had paid them to help her to bewitch both purbeck and buckingham. on the th of february, , buckingham wrote[ ] to coventry, the attorney-general:-- "i perceive by the paper i have received how much i am beholding to you and do also understand by innocent lanier and others of the paynes [you] and my lo. chief justice, have taken in the business concerning the lady purbeck for which i thanke you ... but i did hope that you would have some more discovered before this tyme. if lambe and ffrodsham may escape the one by saying what he did was but jugglinge and the other by seeming to affect to be thought a juggler i believe all that hath been already discovered of the truth of this business will be deluded. i do therefore desire that you will take some sound course with them to make them speake more directly and truly to the point and to bout (?) them from their shifts, for lambe hath hitherto by such means played mock with the world to preserve himself. i desire you to acquaint innocent lanier (who is appointed by my brother to sollicit this business) with all the particulars and publique speeche that he may the better know how to imploy this paynes for the discovering of the knot of this villany. i desire you to say well what is fitt to be done in the divorce of my brother and to notify me your opinions thereon and (if you thinke it fitt to be pursued in this) what is the speediest work that may be taken therein. and you discover the best serving friend. "i rest, &c. "newmarket." if this was true it would seem that purbeck himself suspected that he had been bewitched. yet on that very same day buckingham wrote to heath, the solicitor-general, expressing his opinion that, unless lady purbeck were put in prison, lord purbeck would not "be kept from her," which does not look as if he can have been afraid lest she should bewitch him. the letter runs:-- "i have written a letter to yourself and mr. attorney concerning the business of the lady purbeck which i desire you on whose love to me i principally rely to aggravate and ayre the crimes of that lady and her dealings with lambe and the like, so soon as yet she may be before my coming to london committed to some prison for otherwise my brother who hopes to be going hence, will not be kept from her and she will (if he should come to her) so worke on him by her subtilty as that she will draw from him something to the advantage of her dishonourable ends and to his prejudice. iff ffrodsham and lambe once feele or be brought to feare their punishment i believe they will unfold much more than they yet have, for it seems they have but boath sported in their examinations, &c." this letter, again, proves that lord purbeck was on good terms with lady purbeck, and that buckingham was striving to keep them apart; and it adds still further support to the theory that it was not lord purbeck but buckingham who was trying to divorce lady purbeck, by "aggravating and airing her crimes." buckingham himself was suspected of having dealings with lambe on his own account; for arthur wilson says, in his _life of james i._:[ ] "dr. lamb, a man of an infamous conversation, (having been arraigned for a witch, and found guilty of it at worcester; and arraigned for a rape, and found guilty of it at the king's bench-bar at westminster; yet escaped the stroke of justice for both, by his favour in court) was much employed by the mother and the son," _i.e._, by the duke of buckingham and his mother. if this be true, buckingham's conduct towards lady purbeck, in connection with lambe, does not seem to have been very straightforward. lambe's "favour in court," however, proved no protection to him in the streets. whitelock writes[ ] in : "this term the business of the death of doctor lamb was in the king's bench, wherein it appeared that he was neither dr. nor any way lettered, but a man odious to the vulgar, for some rumors that went of him, that he was a conjurer or sorcerer, and he was quarrelled with in the streets in london, and as the people more and more gathered about him, so they pelted him with rotten eggs, stones, and other riff raff, justled him, beat him, bruised him, and so continued pursuing him from street to street, till they were five hundred people together following him. this continued three hours together until night, and no magistrate or officer of the peace once showed himself to stop this tumult: so the poor man being above eighty years of age, died of this violence, and no inquisition was taken of it, nor any of the malefactors discovered in the city." on the th of february chamberlain wrote[ ] to carleton:-- "the lady purbecke w^th her young sonne, and sr. robert howard are committed to the custodie of generall aldermen barkham and freeman to be close kept. when she was carried to sergeants ynne to be examined by the new l. chiefe justice and others she saide she marvailled what those poore old cuckolds had to say to her. there is an imputation laide on her that with powders and potions she did intoxicate her husbands braines, and practised somewhat in that kinde upon the d. of buckingham. this (they say) is confest by one lambe a notorious old rascall that was condemned the last sommer at the ks. bench for a rape and arraigned some yeare or two before at worcester for bewitching my l. windsor ... i see not what the fellow can gaine by this confession but to be hangd the sooner. would you thinke the lady hattens stomacke could stoupe to go seeke her l. cooke at stoke for his counsaile and assistance in this business?" it would appear that buckingham really believed lady purbeck to have possessed herself of some powers of witchcraft and that he felt considerable uneasiness on his own account, as well as on his brother's, in connection with it; for he seems to have consulted some other sorcerer, with the object of out-witching the witchery of lady purbeck. in some notes[ ] by archbishop laud for a letter to buckingham, the following cautious remarks are to be found:-- "i remember your grace when i came to you on other busyness told me you were gladd i was come, for you were about to send for me, that you calld me asyde into the gallerye behind yo^r lodgings bye the back stayres. there you told me of one that had made a great offer of an easy and safe cure of your g. brother the ld. purbecke. "that it much trobbled you when he did but beginne to express himselfe because he sayde he would doe it bye onlye touchinge his head with his hands[ ] w^ch made yo^r grace jealous in as much as he mentioned noe naturall medicine. "upon this yo^r gr. was pleased to aske what i thought of it. i answered these were busynesses which i had little looked into. but i did not believe the touch of his hand, or any mans els could produce such effects. "your g. asked farther if i remembered whether you might not entertayne him farther in discourse to see whether he would open or express any unlawfull practises; w^ch i thought you might for it went no farther than discourse. "and to mye remembrance your grace sayde that he offered to laye his hand on your head sayinge, i would doe noe more than thiss; and that thereupon you started backe, fearinge some sorcerye or ye like, and that you were not quiett till you had spoken with me about it. this, or much to this effect is the uttermost i can remember that passed at ye time." buckingham had evidently felt some scruples about meddling with the black art, and had consulted laud on the question. it is also pretty plain that laud was anxious not to offend buckingham, yet, at the same time, wished to guard against any possibility of being accused of approving, or even of conniving at, witchcraft. these notes occur in a "draft of a speech, in the handwriting of bishop laud, and apparently intended to be addressed to the house of commons, by the duke of buckingham. it has not been found that this latter speech was ever actually spoken." so far as accusations against lady purbeck of witchcraft were concerned, buckingham must have found that he had no case; for, in a letter[ ] to carleton, written on th march, , chamberlain says that the charge of sorcery had been dropped; but that lady purbeck was to be prosecuted for incontinency. he adds that sir robert howard was a close prisoner in the fleet in spite of the advice given by the attorney-general and the solicitor-general three weeks earlier--and that lady purbeck was a prisoner at alderman barkham's, had no friends who would stand bail for her, and was asking buckingham to let her have a little money with which to pay her counsel's fees. eleven days later chamberlain again wrote[ ] to carleton, saying that lady purbeck was acquitting herself well in the court of high commission; that a servant of the archbishop's had been committed for saying that she had been hardly used, and that she called this man one of her martyrs. he also states that sir robert howard had been publicly excommunicated at st. paul's cross, for refusing to answer. how long the delinquents were kept in captivity is very doubtful. little else is recorded of either of them during the next two years; but, at the time of their trial in , they would seem to have been at liberty. the reason of this long interval between the trial in the court of high commission in and that before the same court in seems inexplicable. footnotes: [ ] _cabala_, p. . [ ] _cabala_, p. . [ ] _s.p. dom._, james i., vol. clxxxii, no. . [ ] _s.p. dom._, james i., vol. clxxxiii, no. [ ] innocent lanier was one of the king's musicians. [ ] _mss. of the house of lords_, , th april, . _hist. com. mss._, ninth report, part ii., p. . [ ] _s.p. dom._, james i., vol. clxxxiii, no. . [ ] _s.p. dom._, james i., vol. clxxxiii, no. , th february, . [ ] _ibid._, no. . [ ] _s.p. dom._, james i., vol. clxxxiv., nos. and . . [ ] _s.p. dom._, james i., vol. clxxxiii, no. . [ ] _camden, complete history of england_, vol. ii., p. (ed. ). [ ] _memorials of the english affairs_, etc., p. . [ ] _s.p. dom._, james i., vol. clxxxiv., no. . [ ] _s.p. dom._, charles i., vol. xxvi., no. . [ ] this looks like an anticipation of mesmer. [ ] _s.p. dom._, james i., vol. clxxxv., no. . [ ] _s.p. dom._, james i., no. . chapter x. "let us give great praise to god, and little laud to the devil." (grace said by the court jester, archie armstrong, when he had begged to act as chaplain, in the absence of that official, at the dinner-table of charles i. archbishop laud was little in stature.) the following account of the trial of lady purbeck in is given by archbishop laud:--[ ] "now the cause of _sir robert howard_ was this: he fell in _league_ with the _lady viscountess purbeck_. the _lord viscount purbeck_ being in some weakness and distemper, the lady used him at her pleasure, and betook her self in a manner, wholly to sir robert howard, and had a son by him. she was delivered of this child in a clandestine way, under the name of _mistress wright_. these things came to be known, and she was brought into the _high-commission_, and there, after a legal proceeding, was found guilty of _adultery_, and sentenced to do _pennance_: many of the great lords of the kingdom being present in court, and agreeing to the sentence." a marginal note states that there were present sir thomas coventry, the lord keeper of the great seal, the earls of manchester, pembroke, montgomery and dorset, viscount grandison, five bishops, two deans and several other dignitaries, clerical and legal. laud continues: "upon this sentence she withdrew her-self, to avoid the penance. this sentence passed at _london-house,_ in bishop _mountains_ time, _novemb. . an. dom. _. i was then present, as bishop of _bath_ and _wells_." the sentence in question was that lady purbeck was to be separated from her husband, and that she should do penance, bare-footed, and clad in a white sheet, in the chapel of the savoy; but a decree of divorce was not given. no attempt shall be made here to excuse or palliate the sins of lady purbeck; but it may be observed in relation to laud's mention of her having been found guilty of adultery by the court, that, although she might be guilty of that offence according to the civil law, she was not guilty of it morally; because her so-called marriage was no marriage at all, since she was forced into it against her will. it cannot be a matter for surprise that lady purbeck "withdrew herself" rather than do penance, barefooted, in a white sheet in a fashionable church, and before a crowded congregation, for a crowd there would certainly have been to enjoy the spectacle of the public penance of a viscountess. for some time her place of withdrawal or, to speak plainly, her place of hiding, was undiscovered. as we have seen, she was sentenced on the th of november. she was not arrested; but she was commanded to "present herself" on a certain sunday at the savoy chapel, to perform her public penance. as might have been expected, she did not present herself, to the great disappointment of a large congregation, and she thereby exposed herself to arrest. the officials did not discover her place of retreat until about christmas. the following story of an incident that then happened in connection with this matter is told by sir john finett.[ ] a serjeant-at-arms, accompanied by other officers of justice and their men, proceeded to the house in which lady purbeck was concealed, and at once guarded every door into the street; but admittance was refused, and the countess of buckingham sent "a gentleman" to the "ambassador of savoy," whose garden adjoined that of the house in which lady purbeck was staying, to beg the ambassador that he would allow the officers to pass through his house and garden into the garden of lady purbeck's house of refuge "for her more easy apprehension and arrest that way." the ambassador refused, considering it an indignity to be asked to allow men of such a type a free passage through his house, and feeling horrified at the idea of lending assistance to "the surprise and arrest of a fair lady, his neighbour." after many protests, however, he consented to the entrance of one constable into his garden, and the man was to avail himself of an opportunity which, said the ambassador, would occur at dinner-time, of passing into the garden of the next house and arresting lady purbeck. in the meantime the ambassador called his page, "a handsome fair boy," and, with the help of his attendants, dressed him in women's clothes. he then ordered his coach to be brought round, and when it came, his attendants, ostentatiously, but with a show of great hurry and fear of discovery, ran out of the house with the sham-lady and "thrust her suddenly into" the carriage, which immediately drove off. the constable, congratulating himself upon his sharpness in discovering, as he thought, the escape of lady purbeck, at once gave the alarm to his followers outside. the coach "drove fast down the strand, followed by a multitude of people, and those officers, not without danger to the coachman, from their violence, but with ease to the ambassador, that had his house by this device cleaned of the constable." while all this turmoil was going on in the strand, lady purbeck went quietly away to another place of hiding; but her escape got the gallant and kind-hearted ambassador into great trouble. buckingham was enraged when he heard of the trick. sir john finett shall himself tell us what followed. buckingham, he says, declared that "all this was done of designe for the ladies escape, (which in that hubbub she made), to his no small prejudice and scorn, in a business that so nearly he said concerned him, (she being wife to his brother), and bringing him children of anothers begetting; yet such as by the law (because begotten and born while her husband was in the land) must be of his fathering. "the ambassador for his purgation from this charge, went immediately to the duke at whitehall, but was denied accesse: whereupon repairing to my lord chamberlain for his mediation, i was sent to him by his lordship, to let him know more particularly the duke's displeasure, and back by the ambassador to the duke with his humble request but of one quarter of an hours audience for his disblaming. but the duke returning answer, that having always held him so much his friend and given him so many fair proofs of his respects, he took his proceeding so unkindly, as he was resolved not to speak with him. i reported this to the ambassador, and had for his only answer, what reason cannot do, time will. yet, after this the earls of carliel and holland interposing; the ambassador, (hungry after his peace from a person of such power, and regarding his masters service and the public affairs), he a seven night after obtained of the duke an interview in whitehall garden, and after an hours parley, a reconciliation." as has just been seen, the officers of the law lost sight of lady purbeck. so also, for the present do we; but we know what became of her; for she was taken by sir robert howard to his house at clun, in the extreme south-west of shropshire, where a small promontory of that county is bordered by montgomeryshire, radnorshire and herefordshire. it is probable that, so long as she was far away from the court and from london, buckingham and the authorities took no trouble to find her or her paramour, and almost connived at their escape. during their absence from our view, it may add to the interest of our story to observe the conditions at that time of some of the other characters who have figured in it, and to consider certain circumstances of the period at which we are halting. looking back a little way, we shall find that king james, who we noticed was so ill as to be only just able to sign an order connected with the proceedings against lady purbeck, died in march, , and that the very correct charles i. was king during the subsequent proceedings. going further back still, we find that bacon, who had succeeded in overthrowing coke, was himself overthrown in , three years after the marriage of coke's daughter to sir john villiers, and shortly after bacon himself had been created viscount st. albans. bacon was impeached on charges of official corruption, and his old enemy, sir edward coke, who was then a member of parliament, was to have had the pleasure of conducting the impeachment. coke, however, was deprived of that gratification by bacon's plea of guilty, and was obliged to content himself with attending the speaker to the bar of the house of lords when judgment was to be prayed, and with hearing the chief justice, by order of the lords, condemn bacon to a fine of £ , , incapacity ever to hold any office again, exile from court, and imprisonment in the tower during the king's pleasure. it was generally supposed that the exultant coke would now be offered the great seal; but, to the astonishment of the world and to coke's unqualified chagrin, the king proclaimed williams, "a shrewd welsh parson," as lord campbell calls him, lord keeper in the place of bacon. after this disappointment, coke became even fiercer against the court than he had been before bacon's disgrace. bacon's fine was remitted, "the king's pleasure" as to the length of his imprisonment was only four days, he was allowed to return to court, and he was enabled to interest himself with the literary pursuits which he loved better than law and almost as much as power; but he was harassed by want of what, perhaps, he may have loved most of all, namely money, and he died in , five years after his fall and condemnation. although buckingham was at the summit of his glory, everything did not go well with him during the period at which he was scheming to rid his brother of lady purbeck. in he went to spain with prince charles to arrange a marriage with the infanta, a match which he failed to bring about. in he was impeached, though unsuccessfully, by the house of commons. in he commanded an expedition to the isle of rhé against the french, on behalf of the huguenots, and completely failed in the attempt. in a new parliament threw the blame upon him of all the troubles and drawbacks from which the country was then suffering; and, in august, the same year, he was murdered by an assassin less than twelve months after he had succeeded in his proceedings against lady purbeck. it was not until shortly after the death of bacon that his rival, sir edward coke, reached the zenith of his fame as a politician. only a few months before the death of buckingham, coke framed the celebrated petition of rights, a document which has often been spoken of as the second _magna charta_. he had gained little through his attempt to bribe buckingham by giving his daughter and her wealth to buckingham's brother, and he was now exasperated against the royal favourite and that favourite's royal master. "in the house of commons, sir ed. coke," says whitelock in his _memorials_[ ] "named the duke to be the cause of all their miseries, and moves to goe to the king, and by word to acquaint him." rushworth writes[ ] more fully of this speech of coke's. "sir edward cook spake freely.... let us palliate no longer; if we do, god will not prosper us. i think the duke of buckingham is the cause of all our miseries; and till the king be informed thereof, we shall never go out with honour, or sit with honour here; that man is the grievance of grievances: let us set down the causes of all our disasters, and all will reflect upon him." and coke was as bitter against the king. a little later charles i. had issued a warrant for a certain commission, when, in a conference with the lords, coke moved[ ] "that the warrant may be damned and destroyed." after the prorogation of parliament which soon followed, coke retired into private life and lived at stoke pogis, where he is supposed to have encouraged his neighbour, hampden, in his plots against the court. in the year lady purbeck left sir robert howard to live with and take care of her father. she probably went to him on hearing that he had been seriously hurt by a fall from his horse. in his diary[ ] coke thus describes this accident: "the rd of may, , riding in the morning in stoke, between eight and nine o'clock to take the air, my horse under me had a strange stumble backwards and fell upon me (being above eighty years old) where my head lighted near to sharp stubbles, and the heavy horse upon me." he declares that he suffered "no hurt at all;" but, as a matter of fact, he received an internal injury. lord campbell says that, from this time "his only domestic solace was the company of his daughter, lady purbeck, whom he had forgiven,--probably from a consciousness that her errors might be ascribed to his utter disregard of her inclinations when he concerted her marriage. she continued piously to watch over him till his death." lady elizabeth was never reconciled to her husband. on the contrary, she seems to have been very anxiously awaiting his death in order to take possession of stoke pogis. garrard, in a letter[ ] to lord deputy strafford written in , says: "sir edward coke was said to be dead, all one morning in westminster hall, this term, insomuch that his wife got her brother, lord wimbledon, to post with her to stoke, to get possession of that place; but beyond colebrook they met with one of his physicians coming from him, who told her of his much amendment, which made them also return to london; some distemper he had fallen into for want of sleep, but is now well again." lady elizabeth's keen disappointment may be readily imagined. it is not likely that the couple of years spent by lady purbeck with her father can have been very pleasant ones. he was bad-tempered, ill-mannered, cantankerous and narrow-minded, and he must also have been a dull companion; for beyond legal literature he had read but little. lord campbell says: "he shunned the society of" his contemporaries, "shakespeare and ben jonson, as of _vagrants_ who ought to be set in the stocks, or whipped from tithing to tithing." nor can lady purbeck have found him a very tractable patient. he had no faith in either physicians or physic. mead wrote[ ]to sir martin stuteville: "sir edward coke being now very infirm in body, a friend of his sent him two or three doctors to regulate his health, whom he told that he had never taken physic since he was born, and would not now begin; and that he had now upon him a disease which all the drugs of asia, the gold of africa, nor all the doctors of europe could cure--old age. he therefore both thanked them and his friend that sent them, and dismissed them nobly with a reward of twenty pieces to each man." doubtless a troublesome invalid for a daughter to manage. at last it became apparent that the end was rapidly approaching, and then lady purbeck was subjected to a most embarrassing annoyance. two days before her father's death she was summoned from his bedside to receive sir francis windebank, the secretary of state, who had arrived at the house, accompanied by several attendants, bringing in his hand an order from the king and council to search sir edward coke's mansion for seditious papers and, if any were found, to arrest him. sir francis, on hearing the critical condition of sir edward, assured lady purbeck that he would give her father no personal annoyance; but he insisted on searching all the rooms in the house except that in which coke was lying; and he carried away every manuscript that he could find, including even sir edward's will--a depredation which subsequently caused his family great inconvenience. it is believed that coke was kept in ignorance of this raid upon his house, probably by the care and vigilance of lady purbeck. thus his last hours were undisturbed, and on the rd of september, , in the rd year of his age, died one of the most disagreeable men of his times, but the most incorruptible judge in a period of exceptional judicial corruption. footnotes: [ ] _the history of the troubles and tryal of the most reverend father in god, and blessed martyr, william laud, archbishop of canterbury_. wrote by himself, during his imprisonment in the tower: london, r. chiswell, , p. . [ ] _finetti philoxenis_, london, , p. . [ ] p. . [ ]_historical collections_, p. (ed. ). [ ] rushworth's _collections_, p. . [ ] campbell, vol. i., p. . [ ] _strafford letters_, i., p. . [ ] harleian ms. , fol. . chapter xi. "the circle smil'd, then whisper'd, and then sneer'd, the misses bridled, and the matrons frown'd; some hoped things might not turn out as they fear'd: some would not deem such women could be found, some ne'er believed one half of what they heard: some look'd perplex'd, and others look'd profound." _don juan_, ix., . soon after the death of sir edward coke, up to the date of which event his daughter had apparently been taking care of him with great filial piety for two years and living a virtuous life, she came to london. about this coming to london archbishop laud must be allowed to have his say,[ ] albeit not altogether a pleasant say:-- "they," _i.e._, sir robert howard and lady purbeck, "grew to such boldness, that he brought her up to london and lodged her in westminster. this was so near the court and in so open view, that the king and the lords took notice of it, as a thing full of impudence, that they should so publickly adventure to outface the justice of the realm, in so fowl a business. and one day, as i came of course to wait on his majesty, he took me aside, and told me of it, being then archbishop of canterbury; and added, that it was a great reproach to the church and nation; and that i neglected my duty, in case i did not take order for it. i made answer, she was a wife of a peer of the realm; and that without his leave i could not attach her; but that now i knew his majesty's pleasure, i would do my best to have her taken, and brought to penance, according to the sentence against her. the next day i had the good hap to apprehend both her and sir robert; and by order of the high-commission-court, imprisoned her in the gate-house and him in the fleet. this was (as far as i remember) upon a wednesday; and the sunday sevennight after, was thought upon to bring her to penance. she was much troubled at it, and so was he." in the _strafford papers_[ ] there is a letter to the lord deputy from garrard, in which he says that, after lady purbeck's sentence some years earlier, she had evaded it by flight and had "not been much looked after since;" but that "this winter she lodged herself on the water side over against lambeth, i fear too near the road of the archbishop's barge; whereof some complaint being made, she had the sergeant at arms sent with the warrant of the lords and the council to carry her to the gate-house, whence she will hardly get out until she hath done her penance. the same night was a warrant sent signed by the lords, to the warden of the fleet, to take sir robert howard at suffolk house, and to carry him to the fleet; but there was never any proceeding against him, for he refused to take the oath _ex-officio_, and had the parliament to back him out, but i fear he will not escape so now." it is open to those who may like to do so to take laud's words as meaning that lady purbeck and sir robert howard were again living together in immorality. possibly that may have been laud's meaning. if it was, he may have been mistaken. the world is seldom very charitable and, when sir robert and lady purbeck were both in london--which was comparatively a small place in those days--the gossips would naturally put the worst construction on the matter. if the very proper charles i. heard such rumours, he would most likely believe them; so also would laud. from the meagre evidence existing on the question, there is much--the present writer thinks most--to be said in favour of the theory that the relations of lady purbeck to sir robert howard were, at this time, perfectly innocent, and that they had been so ever since she had left him to live with her father, two years earlier. to begin with, is it likely that if, after so long a separation, the pair had wished to resume their illicit intercourse, they would have chosen london as the place in which to do so? sir robert may, or may not, have obtained for lady purbeck her lodging. if he did, there was not necessarily any harm in that. then the fact of lady purbeck's returning openly to london looks as if she was conscious of innocence since she had left sir robert a couple of years earlier, and as if she believed that the innocence of her recent life was generally known. and, indeed, she might naturally suppose that because, as garrard wrote, she "had not been much looked after" by the authorities, when she had gone into the country to continue her offence many years earlier, she was perfectly safe in returning to london now that she was living a life of virtue. sir robert howard, says garrard's letter, was sought for and taken at suffolk house, the london home of his brother, whereas lady purbeck was taken at, and living at, a house "on the water side, over against lambeth." this does not absolutely prove that they were not living together; but it is certainly evidence in that direction. again, although it is possible that the king and laud may have believed in the revival of the criminal intercourse between lady purbeck and sir robert, it is equally possible that they did not, and that they merely considered it "boldness" and a "thing full of impudence" to "publickly adventure to outface the justice of the realm," when a woman under sentence to do public penance for grave immorality--a woman who had fled to a remote part of the country to escape from that penance--came back to london and took up her quarters "so near the court, and in so open view," as if nothing had happened; and that, as the sentence had never been repealed, they thought it ought to be executed. it might even be contended that the conduct of the king and laud looks in favour of the innocence of lady purbeck, at that time; for, if they had had any evidence of a fresh offence, far from being content with executing the sentence for the old transgression, they would probably, if not certainly, have prosecuted her again for the new one, and have either added to the severity of the first sentence, or passed a second to follow it, as a punishment for the second crime. be all this as it may, one thing is certain, namely, that the king and laud were determined to carry out the sentence which had been passed some seven or eight years earlier, now that the escaped convict had had what laud calls the "impudence" to come to the capital; and it appears that sir robert was to be proceeded against in the star chamber upon the old charge. apart from any concern on his own account, sir robert was greatly distressed that lady purbeck should be exposed to public punishment for an offence of the past, of which he himself was at least equally guilty. in the hope of saving her from it, he took into his counsel "sir ... of hampshire," some friend whose name is illegible in laud's ms. we must now turn attention, for a little time, elsewhere. the first earl of danby was a man of great respectability, and he had distinguished himself in arms, both on sea and on land. he was a knight of the garter and the governor of guernsey, and he had been lord president of munster. he had always done those things that he ought to have done, with as great a regularity as his attainted elder brother, sir charles danvers, had done those things that he ought not to have done. this paragon of a bachelor, at the age of sixty-two, received a visit at his government house in guernsey from a youth who requested a private interview. this having been granted, the boy, to the astonishment of lord danby, proclaimed himself to be his lordship's cousin, frances, lady purbeck.[ ] in a former chapter we saw that lady purbeck had escaped from punishment through the medium of a boy dressed up like a woman. the process had now been reversed: for she had escaped from the gate-house--a woman dressed up like a boy. the sir somebody something of hampshire, says laud, "with money, corrupted the turn-key of the prison (so they call him) and conveyed the lady forth, and after that into france in man's apparel (as that knight himself hath since made his boast). this was told me the morning after the escape: and you must think, the good fellowship of the town was glad of it." lady purbeck, however, did not go first into france. as we have seen, she went to guernsey and placed herself under the protection of her old cousin, lord danby. that old cousin must have wished devoutly that she had placed herself anywhere else. for the governor of one of the king's islands to receive and to shelter a criminal flying from justice was a very embarrassing position. on the other hand, to refuse protection to a helpless lady, and that lady a kinswoman, much more to betray her into the hands of her enemies, would have been an act from which any honourable man might well shrink. the possibility that it might be discovered in the island that he was entertaining a woman in male attire must also have been an annoying uncertainty to the immaculate governor of guernsey. over the details of this perplexing situation history has kindly thrown a veil; indeed, we learn nothing further about lady purbeck's proceedings until we read, in the already noticed letter of garrard's, that she landed at st. malo, whence she eventually went to paris. it seems safe to infer that whatever protection and hospitality her relative, lord danby, may have afforded to lady purbeck, he was heartily glad to get rid of her. if she had originally intended to go to paris, she would scarcely have made the long voyage of nearly two hundred miles out of her way to guernsey, and the most natural explanation of that voyage is that she had hoped and expected to obtain concealment, hospitality, and a refuge in the house of her relative. instead of conceding her these privileges for any length of time, lord danby evidently speeded the parting guest with great celerity. while all this was going on, sir robert howard remained under arrest in london. laud, writing of lady purbeck's escape, says: "in the mean time, i could not but know, though not perhaps prove as then, that sir robert howard laboured and contrived this conveyance. and thereupon in the next sitting of the high-commission, ordered him to be close prisoner, till he brought the lady forth. so he continued prisoner about some two or three months." it may be observed here that some years later, in fact in the year , sir robert howard turned the tables upon laud for this transaction. "on munday, december ," wrote laud in , "upon a petition of sir robert howard, i was condemned to pay five hundred pounds unto him for false imprisonment. and the lords order was so strict, that i was commanded to pay him the money presently, or give security to pay it in a very short time. i payed it, to satisfie the command of the house: but was not therein so well advised as i might have been, being committed for treason." laud was at that time a prisoner in the tower, only to leave it for execution. in addition to this £ , sir robert was ordered to have a fine of £ paid to him by the sorcerer, lambe, and another fine of £ by a man named martin;[ ] so altogether, the long parliament assigned him,£ , damages. in a letter to the lord deputy, dated th june, ,[ ] garrard says: "sir robert howard, after one month's close imprisonment in the fleet, obtained his liberty, giving £ , bond never more to come at lady purbeck, wherein he stands bound alone; but for his appearance within days, if he be called, two of his brothers stand bound for him in £ , , so i hope there is an end of the business." on the th of july, , the same correspondent wrote of lady purbeck's being "in some part of france, where i wish she may stay, but it seems not good so to the higher powers: for there is of late an express messenger sent to seek her with the privy seal of his majesty to summon her into england, within six weeks after the receipt thereof, which if she do not obey, she is to be proceeded against according to the laws of this kingdom." in a letter[ ] from the "rev. mr. thomas garrard to the lord deputy," dated th april, , there is an announcement which may surprise some readers:-- "another of my familiar acquaintance has gone over to that popish religion, sir robert howard, which i am very sorry for. my lady purbeck left her country and religion both together, and since he will not leave thinking of her, but live in that detestable sin, let him go to that church for absolution, for comfort he can find none in ours." now, "the reverend mr. garrard" can scarcely have known what sir robert would, or would not, "leave thinking of," and, as to his living "in that detestable sin," he and his fellow-sinner had not been even in the same country for nearly two years at the time when garrard was writing; and, as we have already shown, the unlikelihood of their having committed the sin in question for another couple of years before that may be more than plausibly argued. and it should be remembered that these two people could have no object in becoming catholics, unless they received the benefits of the sacraments of the catholic church; and as catholics, they would believe that their confessions would be sacrileges, their absolutions invalid, and their communions the "eating and drinking their own damnation," unless they confessed their immoralities among their other sins, with a firm purpose never to commit them again. it is clear, therefore, that when they became catholics sir robert howard and lady purbeck must have determined never to resume their illicit intercourse; and, so far as is known, they never did so. in a letter to secretary windebanke written from paris, in july, , lord scudamore, after saying something about lady purbeck, adds: "she expects every day sir robert howard here:" but this must have been mere gossip, for scudamore cannot have been in the confidence of that fugitive from england, lady purbeck, as he was english ambassador at paris; moreover, he was a particular ally of archbishop laud,[ ] therefore, not likely to have relations with an escaped prisoner of laud's; although, as we shall presently find, another, although very different, friend of laud took her part. nor is there anything to show that sir robert howard went to paris. respecting the matter of sir robert's submission to the catholic church, the reverend mr. garrard was perfectly right in saying: "let him go to that church for absolution, for comfort he can find none in ours." whether the catholic religion is the worst of religions or the best of religions, it is the religion to which those in grievous trouble, whether through misfortune or their own fault, most frequently have recourse; a religion which offers salvation and solace even to the adulterer, the thief, the murderer, or the perpetrator of any other crimes, on condition of contrition and firm purpose of amendment.[ ] footnotes: [ ] _history of the troubles and tryal of archbishop laud_ (ed. ), p. . [ ] vol. i., p. , th march, . [ ] _strafford papers_, vol. i., p. . letter from garrard to the lord deputy, dated th july, . [ ] lingard, vol. vii., chap. v. [ ] _strafford letters_, vol. i., p. . [ ] _ibid._, vol. ii., p. . [ ] "the remarkably studious, pious, and hospitable life he led, made him respected & esteemed by all good men, especially by laud, who generally visited him in going to & from his diocese of st. david's & found his entertainment as kind and full of respect as ever he did from any friend" (burke's _dormant and extinct peerages_, p. ). [ ] in _coles' mss._, vol. xxxiii., p. , may be found the following note, after a mention of lady purbeck: "sir robert howard died april , , and was buried at clunn in shropshire, leaving issue by catherine nevill, his wife, sons, who, i presume, he married after the lady purbeck's death which happened years before his own. the epitaph in my book in folio of lichfield, lent me by mr. mitton. sir robert was th son to thomas, earl of suffolk, lord treasurer of england." chapter xii. "o must the wretched exile ever mourn, nor after length of rolling years return?" dryden. lady purbeck was not to be left in peace in paris. as garrard had said, a writ was issued commanding her to return to england upon her allegiance, and it was sent to paris by a special messenger who was ordered to serve it upon her, if he could find her. the matter was placed in the hands of the english ambassador, and he describes what followed in a letter[ ] from paris to the secretary of state in england:-- "rt. honble. "your honours letters dated the th march--i received the the same style by the courrier sent to serve his majesties writt upon the lady viscountesse purbecke. they came to me about of the clock in the morning. upon the instant of his coming to me i sent a servant of myne own to show him the house, where the lady lived publiquely, and in my neighbourhood." the business in hand, it will be observed, was not to arrest lady purbeck, but simply to serve the writ upon her: a duty which proved not quite so simple as might be supposed. on arriving at the house in which lady purbeck was living, "the courrier taking off his messengers badge knocked at the doore to gett in. there came a mayd to the doore that would not open it, but peeped through a grating and asked his businesse. he sayd, he was not in such hast but he could come againe to-morrow. but the mayd and the rest of the household having charge not to open the doore, but to suche as were well knowne, the messenger could not gett in." this first failure would not in itself have much alarmed the ambassador; but he says: "in the afternoone, i understood that the lady had received notice days before, that a privy seale was to come for her, which had caused her ever since to keep her house close." this made him nervous, and he tried to push the matter with greater speed. "we endeavoured by severall ways," he wrote, "to have gotten the messenger into the house. but having considered and tryed till the next day in the afternoone, we grew very doubtfull that the messenger might be suspected and that the lady might slip away from that place of her residence that night." unless the writ could be properly served upon her, proceedings against her could not be carried out in england, and, once out of the house in which she now was known, or at least believed, to be, so slippery a lady, as she had already proved herself, would be very difficult to find. to effect an entrance into the house and to serve the writ upon her personally was evidently impossible, and the only alternative was to make sure that she was in the house and then to put the writ into it in such a way that she could not avoid learning of its presence. therefore, says the ambassador, "i directed this bearer to put the box with the privy seale in it through some pane of a lower window into the house and leaving it there to putt on his badge, and knocking at the doore of the house, if they would not suffer him to enter, then to tell that party, whoe should speak to him at the dore, that he was sent from the k. of grate britaine to serve his majesties privy seale upon the lady viscountess purbeck, and that in regard he could not be admitted in, he had left the privy seale in a box in such a place of the house, and that in his majesties name he required the lady purbeck to take notice thereof at her perill." so far as getting the privy seal inside the house was concerned, all went well. "the messenger being there, found an upper windowe neath the casements open, and threw up the box with the privy seale in it through that windowe into a chamber, which some say is the ladies dining roome, others, that it is a chamber of a man servant waiting upon her." the writ was now safely lodged in the house; but the ambassador had ordered the messenger to take care to call the attention of some one in it to the fact that the writ was there. unfortunately, says the ambassador, this part of his instructions had been neglected. "the courrier returnes to me. and finding that he had forgotten to speake at the dore as i had directed him, i caused him presently to returne and to discharge himself in such sort as is above mentioned, which he will depose he did." this was done, but even then something was still left undone; for it yet remained to be proved that lady purbeck was actually in the house at the time when the writ was thrown into it. the ambassador conceived the idea of obtaining such proof by means of a female witness. for this purpose, he very ingeniously contrived to find a sister of one of lady purbeck's servants, and, no doubt by the promise of a heavy bribe, he persuaded her to go to the house, to ask to be admitted in order to speak with her sister, to find out, when there, if lady purbeck was in the house, and, if possible, to see her. this ruse was singularly successful, for, as will be seen, the first person whom the girl saw was lady purbeck herself. "a woman being sent to the house under colour of speaking with a sister of hers the ladies servant, the ladye herselfe came downe to the dore, and opening it a little, soe that the woman saw her, she sayd her sister should have leave to go home to her that night. and therefore the lady was in the house at the same time that the place of her residence was served. she hath lived in that house about a month, and there are (as i am informed) no other dwellers in it but herself." the writ had now been served, although not into the very hands of lady purbeck yet it was hoped sufficiently in order to satisfy the law. but all was not yet smooth. the ambassador wrote:-- "the morrow after this was done, about midnight, there came some officers with two coaches and archers to divers houses to search for the lady being directed and instructed by a warrant from the cardinal that whereas there was a messenger sent from england to offer some affront to your lady purbeck in diminution of this kings jurisdiction, that therefore they should find out the sayd lady and protect her." this intervention on the part of the french government made lord scudamore fear lest _l'affaire purbeck_ might lead to international complications, and he presently adds: "coming to the knowledge of this particular this morning i thought good to hasten the messenger out of the way." fortunately for lady purbeck, she was not without a friend in paris. about a year before she went there, a curious character had arrived in the person of sir kenelm digby, a son of the sir everard digby who had been executed for having been concerned in the gunpowder plot. sir kenelm was well known, both at home and abroad. he had stayed at madrid with his relative, the earl of bristol, at the time when prince charles had gone to spain to woo the infanta. he had been a brilliant ornament at the court of charles i.; but, like all the relations of bristol, he had been hated by buckingham. armed with letters of marque, he had raised a fleet and ravaged the mediterranean in the character of a privateer. he was literary, philosophical, metaphysical and scientific. when he came to paris his beautiful wife had been dead a couple of years, and the smart courtier had thrown off his hitherto splendid attire, had clothed himself in black of the very plainest, and had allowed his hair and beard to grow as they would, ragged and untrimmed. shortly before the arrival of lady purbeck in paris, sir kenelm had declared himself a catholic; and the fact that both he and lady purbeck had submitted themselves to the catholic church may have formed a bond of union between them. sir kenelm soon contrived to interest cardinal richelieu in lady purbeck's case, and not only richelieu but also the king and the queen of france. a certain "e.r." wrote[ ] to sir r. puckering: "the last week we had certain news that the lady purbeck was declared a papist." and then he went on to say that louis xiiith and the queen of france, as well as cardinal richelieu, had sent messages or letters to charles i., begging him to pardon lady purbeck and to allow her to return to england. he also said that the french ambassador at st. james's was "very zealous in the business." shortly afterwards he added: "it is said she is altogether advised by sir kenelm digby, who indeed hath written over letters to some of his noble friends of the privy council, wherein he hath set down what a convert this lady is become, so superlatively virtuous and sanctimonious, as the like hath never been seen in men or women; and therefore he does most humbly desire their lordships to farther this lady's peace, and that she may return into england, for otherwise she does resolve to put herself into some monastery. i hear his majesty does utterly dislike that the lady is so directed by sir kenelm digby, and that she fares nothing better for it." of course anybody would naturally sneer at the suggestion that the convert to a religion other than his own could possibly be remarkable for either virtue or sanctity: but there is no visible reason for sympathising with the sneers of (e.r.), or for doubting sir kenelm digby's evidence respecting lady purbeck. it may be a question whether lady purbeck ever intended "to put herself into some monastery," in the sense of becoming a nun. she did, however, put herself into a monastery in a very different way. it was, and still is, the custom in some convents to take in lodgers or boarders, either for a short time, for a long time, or even for life. the peace, the quiet, the regularity, and the religious services and observances at such establishments are attractive to some people, especially to those who are in trouble or difficulty. the disadvantages are that, although the lodgers are perfectly free to go where they please and to do what they please, they can generally only get their meals at rigidly appointed hours, that the convent doors are finally closed at a fixed time, usually a very early one; and that after that closing time there is no admittance. practically the latter arrangement precludes all possibility of society in an evening, and the present writer knows several catholics of the most unimpeachable orthodoxy, zeal, piety and virtue, who have tried living in convents and monasteries, as boarders, both in rome and in london, and have given it up simply on account of those inconveniences. it was, therefore, very unjust to speak ill of lady purbeck for not having lived in a convent "according to that strictness as was expected," because she left it. but this was done in the following letter:[ ] "the lady purbeck is come forth of the english nunnerie. for, the lady abbess being from home, somebody forgott to provide the lady purbeck her dinner, and to leave the roome open where she used to dine at night, expostulating with the abbess, they agreed to part fairely, which the abbess was the more willing unto in regard the lady purbeck did not live according to that strictness as was expected. car. richelieu helped her into the nunnerie." it may be inferred from this letter that lady purbeck left the convent for the simple reason that she was not comfortable in it--even the "superlatively virtuous" do not like to be dinnerless--and that, either because she was unpunctual, or because she was inclined to make complaints, the abbess was relieved when she took her departure. but by scudamore's own showing they parted "fairely;" or, as we should now say, good friends. among sir kenelm digby's english correspondents, while he was in paris, was lord conway, a soldier as devoted to literature as to arms, and a general who always seemed fated to fight under disadvantages. shortly after the time with which we are at present dealing, he was defeated when in command of the king's troops at newcastle. meanwhile, sir kenelm was endeavouring to "fit him withal," in the matter of "curious books," from paris. as the letter[ ] from sir kenelm to lord conway, about to be quoted, has something in it about lord wimbledon, it may be well to note that he was a brother of lady elizabeth hatton and therefore an uncle of lady purbeck. after observing that england has been singularly happy in producing men like king arthur and others who performed actions of only moderate valour or interest, which subsequent ages mistook for great achievements, he says:-- "but none will be more famous and admirable to our nevewes(?) than the noble valiant and ingenious peer, the lord wimbledone, whose epistle[ ] exceedeth all that was ever done before by any so victorious a generall of armies or so provident a governor of townes, i only lament for it that it was not hatched in a season when it might have done the honor to baronius,[ ] his collections, to have bin inserted among them. "here is a lady that he hath reason to detest above all persons in the worlde, if robbing a man of all the portion of witt, courage, generousnesse, and other heroicall partes due to him, do meritt such an inclination of the minde towardes them that have thus bereaved them: for surely the genius that governeth that family and that distributeth to each of them their shares of natures guiftes was either asleepe, or mistooke (or somewhat else was the cause) when he gave my lady of purbecke a dubble proportion of these and all other noble endowments, and left her poore uncle, so naked and unfurnished: truly my lord to speake seriously i have not seen more prudence, sweetinesse, goodnesse, honor and bravery shewed by any woman that i know, than this unfortunate lady sheweth she hath a rich stock of. besides her naturall endowments, doubtlessly her afflictions adde much: or rather have polished, refined and heightened what nature gave her: and you know vexatio dat intellectum. is it not a shame for you peeres (and neare about the king) that you will let so brave a lady live as she doth in distress and banishment: when her exile serveth stronger but to conceive scandalously of our nation, that we will not permit those to live among us who have so much worth and goodnesse as this lady giveth show off.... "yo. lo: most humble and affectionate "servant, "kenelm digby." sir kenelm, like scudamore, was on a friendly footing with lady purbeck's chief enemy, archbishop laud, but in a very different sense. when sir kenelm was a boy laud had been his tutor, and a friendship had sprung up between the master and the pupil which was not broken by the conversion of the pupil to a religion greatly disliked by the master. subsequently, sir kenelm gave evidence in favour of his old tutor, before the committee appointed to prepare the prosecution of laud at his trial, and he sent kind messages to laud in the tower. unlike scudamore, however, he was no admirer of laud's religion or of his ecclesiastical policy, if indeed of any of his policy. although sir kenelm digby, the king and the queen of france, cardinal richelieu, and the french ambassador at the court of st. james's did their best to obtain forgiveness for lady purbeck, charles i. was long obdurate. at first, as we have seen, he had sent a writ commanding her to return at once to her native country for punishment. when he had withdrawn that writ, he for some time refused to allow her to return at all, for any purpose. but troubles were brewing for charles himself, and, after lady purbeck had spent an exile of some length in paris, she was permitted to come to england, without any liability to stand barefoot in a white sheet for the amusement of the congregation in a fashionable london church on a sunday morning. footnotes: [ ] _s.p. for._, charles i., france. scudamore to coke, th march-- th april, . this letter was addressed to sir john coke, the secretary of state. [ ] _court and times of charles i_. by d'israeli, vol. ii., p. . [ ] _s.p._, charles i., france. scudamore to windebank, i/ july, . [ ] _s.p. dom._, charles i., vol. cccxliv., no. . sir kenelm digby to edward lord conway and kilultagh, / january, . [ ] wimbledon was governor of portsmouth and the letter in question was probably one mentioned by walpole in his _royal and noble authors_, to the mayor of portsmouth "reprehending him for the townsmen not pulling off their hats to a statue of the king charles, which his lordship had erected there." such an "epistle" might well excite the derision and contempt of sir kenelm. [ ] the author of _annales ecclesiastici_. chapter xiii. "to err is human, to forgive divine." pope. concerning lady purbeck's life, after her return to england, we have the following evidence from _coles' manuscripts_. let us observe, first, that in the extract there is a mistake. it was not lady purbeck, but the wife of her son, whose maiden name was danvers. anybody who may choose to discredit the whole, on account of this error, can do so if he pleases; but it is certain that lord purbeck "owned the son" and that the son's grandson, "the rev. mr. villiers," claimed "the title of earl of bucks." therefore we see no reason for doubting the statement that lord purbeck "took his wife again." the "after years" would seem to tally with the undoubted facts. "[ ]lady purbeck's name danvers; absent from husband years: had by sir robert howard one son who married a bertie, and took the title of lord purbeck, which lady purbeck's will i have. lord purbeck after years took his wife again, and owned the son, which nd lord purbeck had one son, father of the rev. mr. villiers, who now claims the title of earl of bucks. &c." it will be remembered that even when lady purbeck was being proceeded against for unfaithfulness to her husband, at the instigation of buckingham, she was on friendly terms with lord purbeck, and that buckingham had considerable difficulty in keeping them apart: consequently it is the less to be wondered at that lord purbeck "took his wife again," after her return from exile. not only was lady purbeck now a reformed character, but, like lord purbeck, she was a convert to the catholic church; and this would probably make him the more inclined to receive her again as his wife and to trust her for the future. at the time of their reunion lady purbeck must have been about forty, and he must have been an oldish man; although not too old to be a bridegroom, and no longer under suspicion of insanity; for, in addition to starting a second time as husband to frances, lady purbeck, it is recorded that after her death, which occurred in five or six years, he married again,[ ] and survived his first wife by twelve years. if the beginning of married life a second time, after an interval of sixteen years--to say nothing of certain awkward incidents which had transpired in the meantime--may have been a little out of the common, it is more remarkable still that lord purbeck should have acknowledged the boy, robert wright, as his son. as was shown in an earlier chapter, it is just possible that he may have been ignorant of the fact that the lad was not his own child, or rather, perhaps, that he refused to believe in that fact. on the other hand, as the boy was born in wedlock, he had in any case the right to acknowledge him as such, if he so pleased. that was his concern, not ours, so we need not cavil at it. his doing so may be accounted for by either of the two following suppositions: namely, that he acknowledged the boy out of affection for, and to please, his wife--possibly it may have been one of the inducements held out to persuade her to return to him--or that he gradually took a fancy to the lad and chose this method of adopting him. whatever the cause of his acknowledging the boy may have been, that acknowledgment encourages the idea that good relations existed between lord and lady purbeck after what may almost be called their second marriage, or, perhaps still better called, their first real marriage with consent on both sides. purbeck called the boy robert villiers, and would not allow him to be spoken of as robert wright. when the lad came of age, lord purbeck made him join with himself, as his son and heir, in the conveyance of some lands, under the name of robert villiers,[ ] the most formal of legal recognitions. it is likely that her life soon became that of an invalid, for she died in the year , when staying with her mother at oxford. in that year the court of charles i. was at this town, which may account for her own and her mother's presence there. as we saw, in the first chapter, there is some question as to whether lady purbeck was born in the year or in , so she may have been either forty-five or forty-six at the time of her death. her life, although of very moderate length, had been one of considerable adventure, which may have told heavily upon her constitution; if her personal concerns were peaceful at the time of her death, we know that the conditions of the king and of the court, together with the prospects of all of high rank who were loyal to the crown, were then causing great anxiety and excitement at oxford: and this may well have had a bad effect upon the health of an invalid. of lady purbeck's character much less is recorded than of the characters of several other leading figures in this story--her father, her mother, bacon, buckingham. we know, however, that she faithfully nursed during his last two years her surly old father, who had treated her abominably and spoiled her life; that she never lost the friendship of lord purbeck; that, in her trouble she sought the consolations of religion in a church which would require a full confession of her sins, accompanied by sincere repentance and virtuous resolutions; that she bore an excellent character in paris; and that she spent her last years with her husband or her mother. it is true that she had sinned, that she had sinned grievously; but, when we consider her education under parents who were fighting like cat and dog, the marriage which was forced upon her, and the dissolute court in which she, a singularly beautiful woman, spent the early years of her married life, we may well hesitate before we look for stones to cast at her memory. and, after all, the only description of her character, of any length, which we have been able to find, namely, that given by sir kenelm digby, is highly favourable. if an apology be required for repeating it, that apology is humbly given. after declaring that of "wit, courage, generosity, and other heroic parts," nature had given lady purbeck "a double share," together with "all other noble endowments," sir kenelm says: "i have not seen more prudence, sweetness, honour and bravery shown by any woman that i know, than this unfortunate lady showeth she hath such a rich stock of. besides her natural endowments, doubtless her afflictions add much; or rather have polished, refined and heightened, what nature gave her." even when we have made due allowance for the fact that the pen of sir kenelm digby was inclined to be a little flowery, sufficient is left in this description of lady purbeck to make her character attractive, and we know that nature had added to her charms by endowing her with exceptional beauty. no attempt shall be made here to exaggerate either her attractions or her virtues, much less to extenuate or minimise her faults; but let us at least forgive the latter. there are ladies who call the story of mary magdalen "beautiful," yet would on no consideration tolerate a repetition of even its most beautiful incidents, in real life. if she now existed, the greatest concession they would make would be to subscribe towards sending her to a home for fallen women; or, which is more likely, they would ask for an order of admission for her from someone else who subscribed to such an institution. from such we cannot expect a charitable view of _the curious case of lady purbeck_. it would be out of place to enter into petty theological questions in a comparatively trivial work such as this--to inquire, for instance, into the question whether it may not be as possible to be damned for detraction as to be damned for adultery; but we may at least believe that lady purbeck spent her later years in contrition for the past and virtue in the present. we have now done with the curious case of lady purbeck, and it only remains to say something about the less curious cases of some of her descendants. it might be supposed that "robert wright," who was just of age at the time of his mother's death, would be proud to bear the name of villiers and to be acknowledged as the rightful heir to the estates and title of viscount purbeck. as time went on, however, he became ashamed of those privileges.[ ] the son of a cavalier, he became a roundhead, and three years after the death of his mother he married one of the daughters and co-heiresses of his relative, sir john danvers, subsequently one of the judges who condemned king charles i. to death. he eventually obtained a patent from oliver cromwell to change his name for that of his wife, declaring that he hated the name of villiers on account of the mischief which several of those who bore it had done to the commonwealth; and as to the title of viscount purbeck, he disclaimed it with contempt. but before the commonwealth robert danvers, as he even then called himself, sat in the house of commons as member for westbury. when people want titles, they do not always find it easy to obtain them; but, when they do not want them, they cannot always get rid of them. robert was summoned to the house of lords, as a peer, to answer the very serious charge of having said that "he hated the stuarts and that if no person could be found to cut off the king's head, he would do it himself." he refused to attend, on the ground that he was not a member of the house of lords but of the house of commons. this plea was not allowed, and he was actually compelled to kneel at the bar of the house of lords and to beg pardon for his criminal words. at the restoration he remained an obstinate roundhead, and, instead of showing any desire to claim the title of viscount purbeck, he obtained permission from charles ii. to levy a fine of his titles in possession and in remainder. then he retired to an estate which he owned in the parish of houghton in radnorshire, bearing the curious name of siluria. he died in the year , at calais, and in his will he is described as "robert danvers, alias villiers, esq." robert's wife survived him, and, now that he and his idiosyncrasies were safely out of the way, it occurred to this daughter of a regicide that "the right honourable the dowager viscountess purbeck" would sound much more euphonious than "the widow danvers;" accordingly--solely for the sake of others--she adopted that title. at the same time, her two sons, robert and edward, resumed the name of villiers. immediately after the death of his father, robert, the elder of the two sons, took as much trouble to get summoned to the house of lords as his father had taken to escape from it. he sent a petition on the subject to charles ii., who referred him to the house of lords. his claim was opposed. first, on the ground that his father had barred his right to honours by the fine which he had levied, _i.e._, by renouncing those honours, and, secondly, on the ground that his father had not been a son of john villiers, first viscount purbeck, but a son of sir robert howard. a petition[ ] against the claim was presented by the earl of denbigh, who professed himself "highly concerned in the honour of the duke of buckingham and his sister, the duchess of richmond & lennox; petitioner's mother, susanna, having been the only sister of the late duke of buckingham," and he prayed "the house to examine the truth of these assertions, before allowing itself to be contaminated by illegitimate blood." this warning to the lords against contaminating itself by illegitimate blood, at a time when charles ii. was constantly enriching it with his own illegitimate offspring, or what at least purported to be so, is rather entertaining. on the other hand, in support of the claim, the claimant's counsel professed to be able to prove the legitimacy of robert villiers, alias wright.[ ] the house of lords after considering the matter petitioned the king to allow the introduction of a bill to disable robert from claiming the title of viscount purbeck: but seven peers opposed this petition stating in writing that "the said claimant's right ... did, both at the hearing at the bar and debate in the house, appear to them clear in fact and law and above all objection." charles ii. replied that he "would take it into consideration." this appears to have been the last official word ever pronounced upon the subject, and nobody has since then been summoned to the house of lords as viscount purbeck. the claimant, however, continued to call himself lord purbeck. he came to an early end, being killed in a duel by colonel luttrell, at liège, when he was only twenty-eight; but he left a son. nor did this son only call himself lord purbeck, for on the death of the childless second duke of buckingham, of whom dryden wrote:--[ ] stiff in opinion--always in the wrong-- was everything by starts, but nothing long; who in the course of one revolving moon was chemist, fiddler, statesman and buffoon. then all for women, painting, rhyming, drinking: besides a thousand freaks that died in thinking; john villiers, alias danvers, alias wright, in addition to the title of viscount purbeck, assumed that of earl of buckingham, the reversion of which had been secured by the first earl and duke to his brother and his heirs, in the case of his own direct heirs failing. this self-styled earl squandered his fortune in a life of debauchery, and then married the daughter of a clergyman, a widow with a large jointure but about as dissolute in character as himself, which is saying much. he left no sons. such claims as there were to the titles of purbeck and buckingham then lay with the rev. george villiers, rector of chalgrove, in oxfordshire. he was the son of edward, the second son of the boy christened robert wright. in the year , on the death of his cousin, the so-called earl of buckingham, this clergyman put in a claim to the titles of earl of buckingham and viscount purbeck; but, unlike his cousin, he does not appear to have ever "lorded" himself. this cleric left a son named george, who also became a parson, and vicar of frodsham in cheshire. efforts were made in his youth to obtain for him a summons to the house of lords; but, in addition to the doubtful character of his claims, he was no _persona grata_ to the king, as he was known to be an ardent jacobite. as burke says: "republicans during the reign of the stuarts--jacobites during the reign of the guelphs--this unfortunate family seems always to have had hold of the wrong end of the stick." as a rule, they appear to have held that end of it, but certainly it is a rule to which george villiers, first duke of buckingham, was a remarkable exception. the rev. george villiers, who still owned property which had been settled by sir edward coke on his daughter, lady purbeck, died without issue, in , and his brother died a bachelor. the male line of villiers, alias danvers, alias wright, then expired. we hear no more of any claims to the purbeck peerage; henceforward the title which stands at the head of this story was no longer to have any place in living interests. at this point, let us also take leave of it; and the author hopes that his readers, if ever reminded of this book by the mention of lady purbeck, may not exclaim in the words of a character in macbeth:--"the devil himself could not pronounce a title more hateful to mine ear." footnotes: [ ] _coles' mss._, vol. xxxiii., p. . [ ] he married a daughter of sir william slingsby of kippax, yorkshire. [ ] burke's _extinct and dormant peerages_. [ ] the authorities for most of what follows are _the historical mss. commission_, ninth report, part ii., p. ; _mss. of the house of lords_, th april, th may, and rd june, , th march, th june, and th july, , and burke's _extinct and dormant peerages_. [ ] _mss. of the house of lords_, , th april, . [ ] _mss. of the house of lords_, , th april, . [ ] _absalom and achitophel_, line , _seq._ generously made available by the internet archive/canadian libraries) trial of duncan terig alias clerk, and alexander bane macdonald, for the murder of arthur davis, sergeant in general guise's regiment of foot. june, a.d. m.dcc.liv. edinburgh: printed by ballantyne and company. . to the members of the bannatyne club, this copy of a trial, involving a curious point of evidence, is presented by walter scott. february, m.dccc.xxxi. transcriber's note: letters that are printed as superscript are indicated by being preceeded by a caret (^). the bannatyne club. m.dccc.xxxi. sir walter scott, bar^t. [president.] the earl of aberdeen, k.t. right hon. william adam, lord chief commissioner of the jury court. james ballantyne, esq. sir william macleod bannatyne. lord belhaven and stenton. george joseph bell, esq. robert bell, esq. william bell, esq. john borthwick, esq. william blair, esq. the rev. philip bliss, d.c.l. george brodie, esq. charles dashwood bruce, esq. the duke of buccleuch and queensberry. john caley, esq. james campbell, esq. hon. john clerk, lord eldin. william clerk, esq. henry cockburn, esq. david constable, esq. andrew coventry, esq. james t. gibson craig, esq. william gibson craig, esq. hon. george cranstoun, lord corehouse. the earl of dalhousie. james dennistoun, esq. robert dundas, esq. right hon. w. dundas, lord clerk register. charles fergusson, esq. robert ferguson, esq. lieut.-general sir ronald c. ferguson. the count de flahault. hon. john fullerton, lord fullerton. lord glenorchy. the duke of gordon. william gott, esq. sir james r. g. graham, bar^t. robert graham, esq. lord gray. right hon. thomas grenville. the earl of haddington. the duke of hamilton and brandon. e. w. a. drummond hay, esq. james m. hog, esq. john hope, esq. cosmo innes, esq. david irving, ll.d. james ivory, esq. the rev. john jamieson, d.d. robert jameson, esq. sir henry jardine. francis jeffrey, esq. lord advocate. james keay, esq. thomas francis kennedy, esq. john g. kinnear, esq. [treasurer.] the earl of kinnoull. david laing, esq. [secretary.] the earl of lauderdale, k.t. the rev. john lee, d.d. the marquis of lothian. hon. j. h. mackenzie, lord mackenzie. james mackenzie, esq. james maidment, esq. thomas maitland, esq. the hon. william maule. gilbert laing meason, esq. viscount melville, k.t. william henry miller, esq. the earl of minto. hon. sir j. w. moncreiff, lord moncreiff. john archibald murray, esq. william murray, esq. james nairne, esq. macvey napier, esq. francis palgrave, esq. henry petrie, esq. robert pitcairn, esq. alexander pringle, esq. john richardson, esq. the earl of rosslyn. andrew rutherfurd, esq. the earl of selkirk. right hon. sir samuel shepherd. andrew skene, esq. james skene, esq. george smythe, esq. earl spencer, k.g. john spottiswoode, esq. the marquis of stafford, k.g. major-general straton. sir john archibald stewart, bar^t. the hon. charles francis stuart. alexander thomson, esq. thomas thomson, esq. [vice-president.] w. c. trevelyan, esq. patrick fraser tytler, esq. adam urquhart, esq. right hon. sir george warrender bar^t. the venerable archdeacon wrangham. to the right honourable sir samuel shepherd, this curious tract, respecting perhaps the only subject of legal enquiry which has escaped being investigated by his skill, and illustrated by his genius, is respectfully inscribed, by his affectionate friend, and much obliged humble servant, walter scott. th feb., . introduction. although the giving information concerning the unfair manner in which they were dismissed from life, is popularly alleged to have been a frequent reason why departed spirits revisit the nether world, it is yet only in a play of the witty comedian, foote, that the reader will find their appearance become the subject of formal and very ingenious pleadings. in his farce called the orators, the celebrated cocklane ghost is indicted by the name of fanny the phantom, for that, contrary to the king's peace, it did annoy, assault, and terrify divers persons residing in cocklane and elsewhere, in the county of middlesex. the senior counsel objects to his client pleading to the indictment, unless she is tried by her equals in rank, and therefore he moves the indictment be quashed, unless a jury of ghosts be first had and obtained. to this it is replied, that although fanny the phantom had originally a right to a jury of ghosts, yet in taking upon her to knock, to flutter, and to scratch, she did, by condescending to operations proper to humanity, wave her privileges as a ghost, and must consent to be tried in the ordinary manner. it occurs to the justice who tries the case, that there will be difficulty in impanelling a jury of ghosts, and he doubts how twelve spirits who have no body at all, can be said to take a corporal oath, as required by law, unless, indeed, as in the case of the peerage, the prisoner may be tried upon her honour. at length the counsel for the prosecution furnishes the list of ghosts for the selection of the jury, being the most celebrated apparitions of modern times, namely, sir george villiers, the evil genius of brutus, the ghost of banquo, and the phantom of mrs veal. the counsel for the prosecution objects to a woman, and the court dissolves, under the facetious order, that if the phantom should plead pregnancy, mrs veal will be admitted upon the jury of matrons. this admirable foolery is carried by the english aristophanes nearly as far as it will go; yet it is very contrary to the belief of those, who conceive that injured spirits are often the means of procuring redress for wrongs committed upon their mortal frames, to find how seldom in any country an allusion hath been made to such evidence in a court of justice, although, according to their belief, such instances must have frequently occurred. one or two cases of such apparition-evidence our researches have detected. it is a popular story, that an evidence for the crown began to tell the substance of an alleged conversation with the ghost of a murdered man, in which he laid his death to the accused person at the bar. "stop," said the judge, with becoming gravity, "this will not do; the evidence of the ghost is excellent, none can speak with a clearer cause of knowledge to any thing which befell him during life. but he must be sworn in usual form. call the ghost in open court, and if he appears, the jury and i will give all weight to his evidence; but in case he does not come forward, he cannot be heard, as now proposed, through the medium of a third party." it will readily be conceived that the ghost failed to appear, and the accusation was dismissed. in the french _causes célèbres et interessantes_, is one entitled, _le spectre, ou l'illusion réprouvé_, reported by guyot de pittaval [vol. xii. edition la haye, ], in which a countryman prosecutes a tradesman named auguier for about twenty thousand francs, said to have been lent to the tradesman. it was pretended, that the loan was to account of the proceeds of a treasure which mirabel, the peasant, had discovered by means of a ghost or spirit, and had transferred to the said auguier, that he might convert it into cash for him. the case had some resemblance to that of fanny the phantom. the defendant urged the impossibility of the original discovery of the treasure by the spirit to the prosecutor; but the defence was repelled by the influence of the principal judge, and on a charge so ridiculous, auguier narrowly escaped the torture. at length, though with hesitation, the prosecutor was nonsuited, upon the ground, that if his own story was true, the treasure, by the ancient laws of france, belonged to the crown. so that the ghost-seer, though he had nearly occasioned the defendant to be put to the question, profited in the end nothing by his motion. this is something like a decision of the great frederick of prussia. one of his soldiers, a catholic, pretended peculiar sanctity, and an especial devotion to a particular image of the virgin mary, which, richly decorated with ornaments by the zeal of her worshippers, was placed in a chapel in one of the churches of the city where her votary was quartered. the soldier acquired such familiarity with the object of his devotion, and was so much confided in by the priests, that he watched for and found an opportunity of possessing himself of a valuable diamond necklace belonging to the madonna. although the defendant was taken in the manner, he had the impudence, knowing the case was to be heard by the king, to say that the madonna herself had voluntarily presented him with her necklace, observing that, as her good and faithful votary, he had better apply it to his necessities, than that it should remain useless in her custody. the king, happy of the opportunity of tormenting the priests, demanded of them, whether there was a possibility that the soldier's defence might be true. their faith obliged them to grant that the story was possible, while they exhausted themselves on the improbabilities which attended it. "nevertheless," said the king, "since it is possible, we must, in absence of proof, receive it as true, in the first instance. all i can do to check an imprudent generosity of the saints in future, is to publish an edict, or public order, that all soldiers in my service, who shall accept any gift from the virgin, or any saint whatever, shall, _eo ipso_, incur the penalty of death." amongst english trials, there is only mention of a ghost in a very incidental manner, in that of john cole, fourth year of william and mary, state trials, vol. xii. the case is a species of supplement to that of the well-known trial of henry harrison, which precedes it in the same collection, of which the following is the summary. a respectable doctor of medicine, clenche, had the misfortune to offend a haughty, violent, and imperious woman of indifferent character, named vanwinckle, to whom he had lent money, and who he wished to repay it. a hackney-coach, with two men in it, took up the physician by night, as they pretended, to carry him to visit a patient. but on the road they strangled him with a handkerchief, having a coal, or some such hard substance, placed against their victim's windpipe, and escaped from the coach. one henry harrison, a man of loose life, connected with this mrs vanwinckle, the borrower of the money, was tried, convicted, and executed, on pretty clear evidence, yet he died denying the crime charged. the case being of a shocking nature, of course interested the feelings of the common people, and another person was accused as an accessory, the principal evidence against whom was founded on this story. a woman, called millward, pretended that she had seen the ghost of her deceased husband, who told her that one john cole had assisted him, the ghost, in the murder of dr clenche. cole was brought to trial accordingly; but the charge was totally despised, both by judge and jury, and produced no effect whatever in obtaining conviction. such being the general case with respect to apparitions, really alluded to or quoted in formal evidence in courts of justice, an evidence of that kind gravely given and received in the high court of justiciary in scotland, has some title to be considered as a curiosity. the editor's connexion with it is of an old standing, since, shortly after he was called to the bar in , it was pointed out to him by robert m'intosh, esq., one of the counsel in the case, then and long after remarkable for the interest which he took, and the management which he possessed, in the prolix and complicated affairs of the york building company. the cause of the trial, bloody and sad enough in its own nature, was one of the acts of violence which were the natural consequences of the civil war in . it was about three years after the battle of culloden that this poor man, sergeant davis, was quartered, with a small military party, in an uncommonly wild part of the highlands, near the country of the farquharsons, as it is called, and adjacent to that which is now the property of the earl of fife. a more waste tract of mountain and bog, rocks and ravines, extending from dubrach to glenshee, without habitations of any kind until you reach glenclunie, is scarce to be met with in scotland. a more fit locality, therefore, for a deed of murder, could hardly be pointed out, nor one which could tend more to agitate superstitious feelings. the hill of christie, on which the murder was actually committed, is a local name, which is probably known in the country, though the editor has been unable to discover it more specially, but it certainly forms part of the ridge to which the general description applies. davis was attached to the country where he had his residence, by the great plenty of sport which it afforded, and, when dispatched upon duty across these mountains, he usually went at some distance from his men, and followed his game without regarding the hints thrown out about danger from the country people. to this he was exposed, not only from his being intrusted with the odious office of depriving the people of their arms and national dress, but still more from his usually carrying about with him a stock of money and valuables, considerable for the time and period, and enough of itself to be a temptation to his murder. on the th day of september, the sergeant set forth, along with a party, which was to communicate with a separate party of english soldiers at glenshee; but when davis's men came to the place of rendezvous, their commander was not with them, and the privates could only say that they had heard the report of his gun after he had parted from them on his solitary sport. in short, sergeant arthur davis was seen no more in this life, and his remains were long sought for in vain. at length a native of the country, named m'pherson, made it known to more than one person that the spirit of the unfortunate huntsman had appeared to him, and told him he had been murdered by two highlanders, natives of the country, named duncan terig alias clerk, and alexander bane macdonald. proofs accumulated, and a person was even found to bear witness, that lying in concealment upon the hill of christie, the spot where poor davis was killed, he and another man, now dead, saw the crime committed with their own eyes. a girl whom clerk afterwards married, was, nearly at the same time, seen in possession of two valuable rings which the sergeant used to have about his person. lastly, the counsel and agent of the prisoners were convinced of their guilt. yet, notwithstanding all these suspicious circumstances, the panels were ultimately acquitted by the jury. this was chiefly owing to the ridicule thrown upon the story by the incident of the ghost, which was enhanced seemingly, if not in reality, by the ghost-seer stating the spirit to have spoken as good gaelic as he had ever heard in lochaber.--"pretty well," answered mr m'intosh, "for the ghost of an english sergeant!" this was indeed no sound jest, for there was nothing more ridiculous, in a ghost speaking a language which he did not understand when in the body, than there was in his appearing at all. but still the counsel had a right to seize upon whatever could benefit his clients, and there is no doubt that this observation rendered the evidence of the spectre yet more ridiculous. in short, it is probable that the ghost of sergeant davis, had he actually been to devise how to prevent these two men from being executed for his own murder, could hardly have contrived a better mode than by the apparition in the manner which was sworn to. the most rational supposition seems to be, that the crime had come to m'pherson, the ghost-seer's knowledge, by ordinary means, of which there is some evidence, but desiring to have a reason for communicating it, which could not be objected to by the people of the country, he had invented this machinery of the ghost, whose commands, according to highland belief, were not to be disobeyed. if such were his motives, his legend, though it seemed to set his own tongue at liberty upon the subject, yet it impressed on his evidence the fate of cassandra's prophecies, that, however true, it should not have the fortune to be believed. abbotsford, th march, . trial of duncan terig alias clerk, and alexander bain macdonald, for the murder of arthur davies, serjeant in general guise's regiment of foot. june, a.d. mdcc.liv. trial of duncan terig alias clerk, and alexander bain macdonald. _curia justiciaria s. d. n. regis tenta in nova sessionis domo burgi de edinburgh, decimo die mensis junij , per honorabiles viros carolum areskine de alva, justiciarij clericum, magistros alexandrum fraser de strichen, patricium grant de elchies, et hugonem dalrymple de drummore, et dominum jacobum ferguson de killkerran, commissionarios justiciarij dicti s. d. n. regis._ _curia legittime affirmata_, intran. duncan terig _alias_ clerk, and alexander bain macdonald, both now prisoners in the tolbooth of edinburgh, pannels, indicted and accused at the instance of william grant of prestongrange, esq., his majesties advocate, for his majesties interest, for the crime of murder committed by them in manner at length mentioned in the indictment raised against them thereanent, which indictment maketh mention, that whereas, by the laws of god, and of this and all other well governed realms, murder or homicide is a most atrocious crime, and severely punishable, especially committed with an intent to rob the person murdered, and that by persons of bad fame and character, who are habite and repute thieves, yet true it is, and of verity, that they, and each of them, or one or other of them, are guilty, actors, or art and part, of the foresaid crime, aggravated as aforesaid, in so far as the deceast arthur davies, serjeant in the regiment of foot commanded by general guise, being in the year one thousand seven hundred and forty-nine, quartered or lodged alongst with a party of men or soldiers belonging to the said regiment in dubrach, or glendee, in braemar, in the parish of ---- and sheriffdom of aberdeen, he, the said arthur davies, did, upon the twenty-eighth day september, one thousand seven hundred and forty-nine, or upon one or other of the days of that month, or of the month of august immediately preceding, or october immediately following, go from thence to a hill in braemar, commonly called christie, at the head of glenconie, in the parish of ---- and sheriffdom aforesaid. as also that same day, both of them, the said duncan terig alias clerk, and alexander bain macdonald, went from the house of john grant, in altalaat, armed with guns and muskets, pretending when they went from thence that they were going to shoot or hunt deer upon the said hill, to which place both of them having accordingly gone, and there meeting with the said arthur davies, each, or one or other of them, did, on the said twenty-eighth of september, , or upon one or other of the days of that month, or of the months aforesaid, cruelly and barbarously fire a loaded gun or guns at him, which were in their hands, whereby he was mortally wounded, and of which wounds he died on the said hill, immediately or soon thereafter, where his dead body remained concealed for sometime, and was afterwards found, together with a hat, having a silver button on it, with the letters a. r. d. marked on it. likeas, soon after the said arthur davies was murdered, each of the said two panels, being persons of bad fame and character, and who were habite and repute thieves, were, by the general voice of the country, reputed to have perpetrated the said murder, and to have robbed and taken from him a silver watch, two gold rings and a purse of gold, which it was known or believed in the country he generally wore or carried about him, which said opinion or belief of the neighbourhood, that both of them had been guilty of the said murder and robbery, has been since that time rendered the more credible, particularly with respect to him, the said duncan clerk, in so far as, although he was not possesst of any visible funds or effects which could enable him to stock a farm before the period of the said murder, yet soon thereafter he took and obtained a lease from lord bracco, of a farm called the craggan, for which he was bound to pay thirty pounds scots of yearly rent; as also thereafter he obtained a lease of the farm of gleney, from ---- farquharson of inverey, for which at present he was bound to pay a yearly rent, or tack duty, of one hundred and five merks scots, as appears from the judicial declaration of him, the said duncan clerk, to be hereafter more particularly taken notice of; and both of the said panels having been apprehended in the year one thousand seven hundred and fifty-three, for being guilty of the foresaid murder, and upon the twenty-third day of january last, one thousand seven hundred and fifty-four years, brought into the presence of the right honourable alexander fraser of strichen and hugh dalrymple of drummore, two of the lords commissioners of justiciary each of them gave different and contradictory accounts of themselves, in so far as the said duncan clerk did then acknowledge, in presence of the said judges, that he was on the hill of gleneye, alongst with the said alexander bain macdonald, both armed as above set forth, on the day the said arthur davies was amissing; that the said alexander macdonald fired a shot at some deer, but that about ten o'clock the said duncan clerk parted with him on the hill, and came back to his father's house, to which likewise the said alexander macdonald came the same evening, where he lodged or stayed all night; as also a paper containing a list of debts, beginning with the words, "i, duncan clerk, in gleneye, was put in perth jail," and ending, "angus macdonald, sh.," now marked on the back with the name and sirname of the said lord drummore, being exhibited to him the said duncan clerk, he acknowledged the same to be his handwriting, and that it contains a list of debts due to him when he was imprisoned, as is at more length to be seen in his said confession or declaration, signed by him and the said lord drummore. likeas he the said alexander bain macdonald did, upon the twenty-third day of january last, one thousand seven hundred and fifty-four years, in presence of the said judges, acknowledge and declare, that one year, while he was lord bracco's forrester, he went with the said duncan clerk to the hill of gleneye, to search for deer, where he fired at them, but that about nine or ten o'clock in the forenoon, duncan clerk went home to his father's house, and thereafter the said alexander macdonald returned to his own house in allanquoich, where he staid all that night, not seeing the said duncan clerk more that day, as is at more length to be seen in his said confession or declaration, signed by the said lord drummore, he having declared he could not write; both which confessions or declarations, with the list of debts above specified, said to be due to him, the said duncan clerk, as also, the hat mentioned to be found in summer one thousand seven hundred and fifty in the hill of gleneye, are all now lodged in the hands of the clerk to the court of justiciary, before which they are to be tried, that they may see the same: at least time and place aforesaid, the said arthur davies was murdered or bereaved of his life, and they, and each of them, or one or other of them, are guilty, actor or art and part of the said murder, aggravated as above set furth; all which, or part thereof, being found proven by the verdict of an assize, before the lords justice general, justice clerk, and commissioners of justiciary, he, the said duncan terig alias clerk, and alexander bain macdonald, ought to be punished with the pains of law, to the terror of others to commit the like in time coming. (signed) alex. home, a.d. pursuers. william grant, of prestongrange, esq., his majesties advocate. mr patrick haldane, and mr alexander home, both his majesties solicitors. mr robert dundas, advocate. procurators in defence. mr alexander lockhart, mr robert m'intosh, advocates. the libel being openly read in court, and the panels interrogate thereupon, they both denied the same, and referred their defences to their lawiers. lockhart, &c., for the panel, denying the libel, or any guilt or accession of the panels to the murder charged, pled that the panels were persons of good fame and reputation, and that as no cause of malice in them against serjeant davies was alleged, so the circumstances founded on in the indictment, though they were true, were not in any sort sufficient to infer a proof of the panels' guilt. and further, the panels would be able to prove a true and warrantable cause for going to the hill libelled on in arms, and that they went openly and avowedly; and that in the circumstances they were in, it was impossible they could have any wicked design against, or expect to have an opportunity of executing such a design against serjeant davies: that they were not so much as suspected of murdering him at the time of his being amissing, or for several months thereafter, when many different accounts were given, and suspicions raised and entertained concerning that matter. they also objected and alleged for the panels, that as murder was the only crime charged against them in this indictment, no vague or general allegation of robbery, or other crime or accusation against their characters, could be allowed to go to the knowledge of an assize, though they were noways apprehensive of the consequences of it, other than from the false and malicious reports, raised and propagated against them, since their commitment for the foresaid crime; and the panels had great reason to complain of the undue delays in bringing them to trial for this offence: in so far as, after they were committed for the same in september last, and had taken out letters of intimation, and upon expiry of the days, had also obtained letters of liberation, they were again committed upon a new warrant for alleged theft, upon which new commitment they raised new letters of intimation, and when the sixty days were just expiring, they were served with an indictment for the theft, which was fixed to within a few days of the expiry of the forty days allowed by law, and then allowed to drop; and after all, there was again a new warrant of commitment obtained against them for wearing the highland dress; and last of all they were served with this indictment; all which steps plainly show the oppression they have met with, which the panels do by no means lay to the charge of the prosecutor, but are willing to allow the same to be owing to the malicious information of some private informer, which they hope to be able to make appear if they were allowed an exculpatory proof, and that very undue means had been used both before and since the citation of the witnesses to influence them to give evidence against the panels in this matter; and the panels, amongst many other things for their exculpation, would be able to prove, that after they returned from the hill upon the day upon which the serjeant is said to have been murdered, he, the serjeant, was seen with his party in that hill. so that it is impossible the panels could be the perpetrators of the murder. lord advocate, &c., answered, that as the defence resolved altogether into a denial of the libel, it was sufficient for him to say, that according to the information he had received, such facts and circumstances would come out upon proof as would be sufficient to convince the jury of the panels' guilt: that it was not meant that the circumstances libelled were sufficient without others to connect with them, the only intention of libelling upon these circumstances being to show the panels what written evidence was to be adduced against them: that he does not oppose the panels being allowed a proof of every fact and circumstance that may tend to their exculpation: that as to the delay complained of, the prosecutor can for himself say, that it is owing to no intention of his to oppress the panels; he had early information of the murder charged upon, and was very willing and desirous it might come to light. the panels were at last accused and committed for it, by the general voice of the country; and though at first the proof against them did not appear so pregnant, yet it was hoped, and was the general expectation of all in that part, that the murder would be brought to light. this was the reason of continuing the panels in confinement. and now that the prosecutor was ready to go on to trial, he hoped their lordships would find the indictment relevant, and remit the panels to the knowledge of an assize, allowing them at the same time a proof of every circumstance that may appear necessary for their exculpation. the lords justice clerk and commissioners of justiciary, having considered the indictment pursued at the instance of william grant of prestongrange, esq., his majesties advocate for his majesties interest, against duncan terig _alias_ clerk, and alexander bain macdonald, both now prisoners in the tolbooth of edinburgh, panels, with the foresaid debate thereupon: they find the said indictment relevant to infer the pains of law; but allow the panels to prove all facts and circumstances that may tend to elide the indictment, or exculpate them, or either of them, from the guilt of the crime therein libelled: and remit the panels, with the indictment as found relevant, to the knowledge of an assize. (signed) ch. areskine, i.p.d. the lords continue the diet at the instance of his majesties advocate, against the said two panels, till to-morrow at seven o'clock in the morning, and witnesses and assizers then to attend, each under the pain of law, and the panels to be carried back to prison. _curia justiciaria s. d. n. regis tenta in nova sessionis domo burgi de edinburgh undecimo die mensis junij , per honorabiles viros carolum areskine de alva, justiciarium clericum, dominum gilbertum elliot de minto, magistros alexandrum fraser de strichen, patricium grant de elchies, et hugonem dalrymple de drummore, et dominum jacobum ferguson de killkerran, commissionarios justiciarios dict. s. d. n. regis._ _curia legittime affirmata_, intran. duncan terig _alias_ clerk, and alexander bain macdonald, both prisoners in the tolbooth of edinburgh, panels indicted and accused as in the former sederunt. the lords proceeded to make choice of the following persons to pass upon the assize of the said duncan terig alias clerk, and alexander bain macdonald; to wit,-- archibald wallace, merchant in edinburgh. william tod, senior, merchant there. andrew bonnar, merchant there. robert forrester, merchant there. walter hogg, merchant there. alexander crawford, baker in edinburgh. john heriot, candlemaker there. john sword, merchant there. william ormiston, bookbinder there. william braidwood, candlemaker. william sands, bookseller in edinburgh. john dalgleish, watchmaker there. george gray, merchant there. john welsh, goldsmith there. james gilliland, goldsmith there. the above assize all lawfully sworn, and no objection to the contrary-- the panels and their procurators admitted the two judicial declarations libelled on, were emitted by them, before the two judges therein named; and the said panels both now judicially adhere to the same, with this variation for alexander bain macdonald, that it was a mistake in his said declaration, where it is said, that he went home to the house in allanquoich, where he staid that night, and did not see duncan clerk any more that day after they parted on the hill, the true fact being, that he did not go home to the house in allanquoich where he resided, till the night thereafter, and in the evening of that night went to the house of duncan clerk's father, where he found duncan clerk, and staid all night, and that the reason of his former mistake was, that he by himself went again to the hills upon the twenty-ninth in quest of the deer which he had wounded the preceding day, and returned to his own house the evening of the said twenty-ninth; and this admission is signed by the said duncan clerk, and by mr alexander lockhart, procurator for the other panel, who declares he cannot write. (signed) duncan clerk. alex. lockhart. thereafter, his majesty's advocate for proof adduced the following witnesses; viz.-- jean ghent, relict of arthur davies, serjeant in the regiment commanded by lieutenant-general guise, aged about thirty-three years, who being solemnly sworn, purged of malice and partial council, and interrogate: depones, that she was married for the space of ten months to serjeant davies the day he was missing, and that in summer seventeen hundred and forty-nine, her husband, with eight private men under his command, marched from aberdeen to dubrach in braemar, in the shire of aberdeen, which was assigned to him as his station; and that there was another party of the same regiment whose head-quarters was at aberdeen, stationed at the spittle of glenlee, within eight miles of dubrach, under the command of a corporal: that the two parties did meet twice a-week in patrol, about half way between the foresaid two places: that her husband was a keen sportsman, and used to go out a-shooting or fishing generally every day; and when he went along with the party on patrol, sent the men home and followed his sport; and on other occasions went out a-shooting by himself alone: that her husband was a sober man, a good manager, and had saved money to the value of about fifteen guineas and a half, which he had in gold, and kept in a green silk purse, which he inclosed within a leather purse along with any silver he had: that besides this gold, he generally wore a silver watch in his pocket, and two gold rings upon one of his fingers, one of which was of pale yellow gold, and had a little lump of gold raised upon it in the form of a seal, with a gold stamp on the inside of the ring, and a weaved line like a worm round the upper side of the plate: that the other was a plain gold ring, which the deponent had got from david holland, her first husband, with the letters d. h. on the inside, and had this posie on it, "when this you see remember me:" that the said david holland was paymaster-serjeant in general guise's regiment: and further depones, that the said serjeant davies commonly wore a pair of large silver buckles in his shoes, marked also with the same letters d. h. in the inside, which likewise had belonged to her said former husband, as also wore silver knee-buckles, and had two dozen silver buttons upon a double-breasted vest, made of stript lutstring: that he frequently had about him a folding penknife, that had a brown tortoise-shell handle, and a plate upon the end of it, on which was cut a naked boy, or some such device, with which he often sealed his letters: that one day when he was dressing some hooks while the deponent was by, she observed that he was cutting his hat with his penknife, and she went towards him, and asked him what he meant by cutting his hat? to which he answered, that he was cutting his name upon it: to which the deponent replied, she could not see what he could mean by putting his name upon a thing of no value, and pulled it out of his hand in a jocular way, but he followed her, and took the hat from her, and she observed that the a. was then cut out in the hat; and after he got it, she saw him cut out the letter d., which he did in a hurry, and which the deponent believed was occasioned by the toying that was between them concerning this matter, for when she observed it, she said to him you have made a pretty sort of work of it, by having misplaced the letters: to which he answered, that it was her fault, having caused him do it in a hurry. and the hat now upon the table, and which is lying in the clerk's hands, and referred to in the indictment, being shown to her, depones, that to the best of her judgment and belief, that is the hat above mentioned: depones, that she never has seen neither the said serjeant, the gold purse, or silver purse, above mentioned, nor the buckles for his shoes and knees, watch, or penknife, since he marched from his quarters with the party at the time at which he is supposed to have been murdered: depones, that on thursday, being the day immediately preceding michaelmas, being the twenty-eighth of september, one thousand seven hundred and forty-nine, her husband went out very early in the morning from dubrach, and that four men of the party under his command soon after followed him, in order to meet the patrol from glenshye, and in the afternoon before four o'clock, the four men returned to dubrach, and acquainted the deponent that they had seen and heard him fire a shot, as they believed, at tarmatans, but that he did not join company with them: that at the place appointed they met with a corporal and a party from glenshee, and then retired home: depones, that her husband never returned; that she has never met with any body that saw him after the party returned from the foresaid place, excepting the corporal that that day commanded the party from glenshee, who told her that, after the forementioned party from dubrach had gone away from the foresaid appointed place, serjeant davies came up to him all alone, upon which the corporal told him, he thought it was very unreasonable in him to venture upon the hill by himself, as for his part he was not without fear even when he had his party of four men along with him; to which serjeant davies answered, that when he had his arms and ammunition about him, he did not fear any body he could meet: depones, that her husband, serjeant davies, made no secret of his having the gold above mentioned, but upon the many different occasions he had to pay and receive money, he used to take out his purse and show the gold; and that even when he was playing with children, he would frequently take out his purse and rattle it for their diversion, from which it was generally known by all the neighbourhood that the serjeant was worth money, and carried it about him: depones, that from the second day after the serjeant and party went from dubrach as aforesaid, when the deponent found he did not return, she did believe, and does believe at this day, that he was murdered; for that he and she lived together in as great amity and love as any couple could do that ever were married, and that he never was in use to stay away a night from her, and that it was not possible he could be under any temptation to desert, as he was much esteemed and beloved by all his officers, and had good reason to believe he would have been promoted to the rank of serjeant-major upon the first vacancy: depones, that when her husband went away from dubrach on the morning of the twenty-eighth of september aforesaid, he was dressed in a blue surtout coat, with a stripped silk vest, and teiken breeches and brown stockings: that he had in his purse fifteen guineas and a half in gold, a crown piece and three shillings in silver, his silver watch in his pocket, with a silver seal at it, his silver buckles in his shoes, and his silver buttons on his waistcoat, and the above mentioned rings on his fingers; and being asked how she came to know all these things were on him or about him when he went away as aforesaid? depones, that she was privy and knew every thing that related to his money; and the night before the said twenty-eighth of september, the serjeant from braemar had come to dubrach, and in the deponent's presence had given some money which was gold to serjeant davies, who gave him silver that he had by him for it, to pay the party; and upon occasion of this, she saw the quantity of gold above mentioned, which was in her husband's possession, and that she saw the vest with the buttons and rings on his fingers, and also the watch, before he went away, he having in her presence put on the teiken drawers above mentioned, desired from her somewhat to keep the watch dry, upon which she gave him a piece of cloth, the said drawers being a little damp, in which he wrapt it, and put it into his pocket: depones, that he had dark mouse-coloured hair, tied up with a black silk ribband behind, and wore a hat with a silver lace and silver button, marked with the letters d. a. on the outside of the crown of the hat: and the deponent verily believes, that the hat now shown to her, and above referred to, is the hat he took out with him: depones, that he wore that day a pair of brogues which he had bespoke to be made so as they could fit buckles, and not to be tied with latches, conform to the common use of that country: that these brogues the deponent saw when they were first brought home from glenshee: depones, that a gun now exhibited and shown to the deponent, is the gun which her husband, serjeant davies, received in a present from lieutenant brydon, of the same regiment with him, and the gun which he always used when he went a-shooting, and which he carried out with him in the morning of the twenty-eighth of september, one thousand seven hundred and forty-nine aforesaid: that the stock of the gun is altered about the butt, and a plate that was on the butt-end is taken away, and the wood pared, but that she knows the barrel by a cross rent that is in it a little above the middle, and which her husband told her had been occasioned by his firing a shot when the gun was overloaded and the ball had stuck at that part of the barrel when he was loading her: depones, that from the time her husband was quartered at dubrach in the month of june to the foresaid twenty-eighth of september one thousand seven hundred and forty-nine, he was never absent a night from his command at dubrach except one, that he went to the doctor of the regiment to take his advice about a strain, and he returned next morning: depones, that upon the monday after the serjeant was believed to be murdered, the country was raised to make search for the body, but it was not found; and that she spoke to one of the prisoners, clerk, whom she took to be a particular friend, to try if he could find the body, but it was not found: that afterwards the deponent went to the garrison in braemar, and from that to the regiment: and being interrogate for the panels, whether her husband had received any information before the party marched out upon the day above mentioned that there were people in arms in that country where he was stationed? depones, that her husband was stationed there, as she believes, because it was said that severals of the highlanders had not delivered up their arms since the rebellion, and wore the highland garb; but that she knows nothing of any particular information he had about that time, except that about the beginning of harvest, on a sunday afternoon, a woman, who said she had been in the hill, came in where the serjeant and the deponent were sitting at dinner, and said, that she had seen two men in highland clothes, and armed, lying at the mouth of a cave, who seemed to be herding two cows which she saw, and upon her coming near them, consulted among themselves whether they should not bind her lest she should return and advertise serjeant davies and his party; but however, she had got away, and had come immediately to give notice to the serjeant and his party, whereupon he and a party of six men went up in quest of them, but found nobody, neither did the deponent hear any more of that matter afterwards, _causa scientiæ patet_: and this is truth, as she shall answer to god; and declares she cannot write. (signed) ch. areskine. donald farquharson, in glendee, married man, who being solemnly sworn, purged of malice and partial council, and interrogate, depones, that in summer one thousand seven hundred and forty-nine, arthur davies, late serjeant in general guise's regiment, was with a serjeant's command of soldiers stationed in dubrach, in glendee, in braemar, in aberdeenshire; and the serjeant, with his wife, the preceding witness, stayed in the house of michael farquharson, the deponent's father, where the deponent also stayed: depones, that the serjeant was a sober well behaving man, very civil to the country, and, so far as the deponent knew, had the good-will of the country: that he was a good manager of his money; and the deponent has seen with him a good deal of gold, which he commonly kept in a long purse, either blue or green, the deponent does not remember which, and he had also another purse, in which he kept his silver: that he had a silver watch, with a seal hanging at it, and silver buckles in his shoes, and knees of his breeches: that the deponent has seen two vests with him, one with a white stripe, and the other of a roe's skin; and that he had a set of silver buttons for a vest, which he used with the one or other as he had occasion: that he had also two rings, which he told the deponent were gold, the one of them a large coarse ring, with a knob on the one side of it, either of the shape of a seal or a heart, the deponent does not remember which: depones, that when serjeant davies went a-shooting or fishing, he was commonly dressed in one of the above vests, and a blue meet upper coat, or surtout, with highland brogues, which he had purchased for the purpose, and had caused to be made so as to be tied with silver buckles: depones, that on the above gold ring with the knob, there was upon the upper side of the knob some scores that the deponent did not understand the meaning of: depones, that the serjeant was wont frequently to take out his purse, either in paying or receiving money, or some time even in playing with children; and that when he went a-hunting or shooting, he always wore a laced hat, with a silver button: depones, that the last time the deponent saw him was on wednesday the twenty-seventh day of september, one thousand seven hundred and forty-nine, the deponent having gone that day to the fair at kirkmichael, eighteen miles from his father's house, and did not return till saturday thereafter: depones, that at his return, passing by the house where the soldiers were quartered, one of them named patrick ogilvie, asked the deponent whether he had seen serjeant davies at the fair? and the deponent having answerd that he did not see him, and that certainly he had not been there, or he would have seen him, ogilvie then said he was afraid of him, for that he had gone away upon the thursday to meet a patrol from glenshee, and had not yet returned; that they supposed he had gone with that patrol to the fair, but that since he was not there, he suspected he had been murdered; and the deponent never saw him alive since that time: depones, that the captain of that command to whom the serjeant belonged, hearing that he was amissing, sent a party of men on the sunday to dubrach to search for his body, and went with them for three or four following days, but without any success: depones, that in the month of june seventeen hundred and fifty, the deponent was told by the people in his father's house, that alexander macpherson, alias m'gillas, had been there inquiring for him, and wanted much to see him, and desired the deponent would go to his master's sheilling in glenconie, about two miles' distance from dubrach, and that he wanted much to speak to him: that after some days the deponent went to him, when macpherson told him that he was greatly troubled with an apparition, the ghost of the deceased serjeant davies, who insisted that he should bury his bones; and that he having declined to bury them, the ghost insisted that he should apply to the deponent, saying that he was sure donald farquharson would help to bury his bones: that the deponent could not believe that he had seen such an apparition, upon which macpherson desired him to go along with him, and he would show him the bones, and the place where he had found them: that the deponent went along with him, which he did the rather that he thought it might possibly be true, and if it was, he did not know but the apparition might trouble himself: depones, that they accordingly found the bones in a peat-moss, where peats had been casten above ground, and near to the top of a hill: that the place was distant from dubrach between two and three miles, between glenchristie and glenconie, and about half a mile from the road the patroling parties commonly take from dubrach to glenshee: that the spot where the body was lying had the surface of the ground entire, and no peats had been casten there: that the flesh had been mostly consumed from the bones, and the head separated from the body, and the hair lying by itself, separated from the head; and depones, that the hair was of the same colour with the serjeant's hair, a mouse colour: that they also found some blue cloth, all torn in rags, some of it under the body, and some of it lying by the body; and it appeared to the deponent to be of the same kind of cloth with that of the blue coat that the serjeant commonly wore when he went a-shooting: depones, that the bones were not all lying together, but were scattered asunder, particularly some of the joints of his arms, and one of his legs; and that some of them were scattered at the distance of several yards: depones, that macpherson told him that when he first found the bones, which was about eight days before, that they were lying farther off, under a bank, and he drew them out with his staff: depones, that they also found a pair of brogues, which appeared to the deponent to be of the same kind with what the serjeant wore, only with this difference, that the taggs for the buckles were cut away, which seemed to have been done with a knife: depones, that he asked macpherson whether the apparition had told him by whom he had been murdered: that macpherson said he had asked the question, and the apparition answered, that if he had not asked him, he would have power to have told him: that the deponent also asked him if the apparition had given him any orders about carrying his bones to a churchyard: depones, that macpherson said he had given no answer, and thereupon they agreed to bury him in that place; and accordingly they dug a hole in the moss, with the shaft of a shovel that macpherson had, and buried the bones there, and laid a part of the blue cloth under the bones, and a part of it above it, and covered all with some turfs that they had tore up from the moss; and being showed a fusee, depones, that one day the serjeant and the deponent went out a-deer-hunting, and the serjeant, in loading his gun, which was either a french or a spanish piece, happened to put in a ball that was too large for the bore, so that he could not, with the ram-rod, drive it down to the powder: that the deponent advised him to go to his father's sheilling to get a stronger ram-rod; but the serjeant, being impatient to go about his diversion, fired the fusee, and cracked the barrel about the middle; and having examined the fusee now produced, observed that the barrel is cracked about the same place, and, so far as appears to him, may be the same barrel: depones, that there appears to be some alterations made upon the stock since the serjeant had it: that the but was thicker than it is now, and clad with iron at the end; and there was also another ring for the keeping of the ram-rod, other than that now shown him: depones, that the gun was shown to the deponent on wednesday last by james growar, son to donald growar in glendee, who told him that he found it in the hill in sight of glenconie: depones, that after serjeant davies was killed or amissing as aforesaid, he saw yellow rings on elizabeth downie's fingers, spouse to the prisoner, duncan terig alias clerk, one of which had a knob upon it, as serjeant davies's ring also had, but does not remember the shape of either of these knobs: depones, that he asked her whether it was gold, and she said it was: depones, that he saw this ring upon elizabeth downie's finger before she was married to the prisoner; but it was then reported in the country that he was in suit of her for marriage, and has at several times, before and since serjeant davies was amissing, seen other yellow rings upon her fingers, but never saw the ring with the knob upon her finger till after the serjeant was amissing, nor never saw it on her finger after she was married; and being asked whether it did not strike him, when he saw the ring with the knob on it upon elizabeth downie's hand, that it was serjeant davies's ring, depones, that it did not; and further depones, that he has known elizabeth downie change her rings every other year: depones, that after she was married, the deponent asked her if she had a gold ring, and she answered she never had one but one which was her mother's, which made the deponent suppose that the said ring with the knob had been her mother's; and depones, that the panel, her husband, was in prison when he asked her this question: depones, that at first there was a report in the country that serjeant davies had deserted, then it was supposed that he had been killed by the thieves, but last of all, the report was, that he had been killed by the prisoners, and that has continued to be the report of the country for these three years: and being asked what he took to be the grounds of that report, depones, that he took it to be, that macdonald, as lord bracco's forrester, had a warrant for carrying guns for killing of deer, and he carried clerk alongst with him, and none other of the country had any warrant to carry arms; but he heard that some of the people in the country suspected that the ring with the knob that he had seen on elizabeth downie's finger was serjeant davies's ring; and being interrogate as to the character of the two panels, depones, that he has heard clerk habite and repute a sheep-stealer, but that he never heard any thing of macdonald, but that he once broke the chest of one corbie, and took some money out of it: depones, that he never heard clerk get the character of a good deer-stalker, though he could shoot wild fowl: depones, that alexander macpherson, before mentioned, once served the deponent's father, and is accounted an honest lad; but on the panel's interrogatory, depones, that he has been charged with telling of stories, and that all is not to be believed that he says; though that is the general character, the deponent knows no reason for it: depones, that duncan clerk once pursued his accusers before a sheriff court at braemar, and freed himself at that time, and, as he heard, got some mends of his accusers, but what it was he knows not: that the only particular act of theft he heard him accused of, was the stealing of a parcel of sheep from alexander farquharson in inverey, and which was the ground of the process before mentioned before the sheriff: depones, that the sabbath before the serjeant was amissing, a woman came to the deponent's father's house, and told them that, coming through the hills, she had seen four thieves in arms, who had separated fourteen of his father's cattle, upon which the serjeant, with a party, went in quest of them immediately, but could find none of them, they having, it seems, gone off and left the cattle: depones, that upon the friday, the twenty-ninth of september, the corporal stationed at glenshee met with the deponent at the fair of kirkmichael, while the deponent was buying a pair of shoes, and he told the corporal that they were for serjeant davies, and the corporal told him that he had parted with the serjeant the day before at the water of benow; the serjeant, after that, was going to the hill to get a shot of the deer; which water of benow is about half a mile's distance from the place where the patrolling parties used to meet: depones, that the prisoner clerk was a common dealer in buying of sheep and cattle; and the deponent has seen him both buying and paying the price, and his father was reputed one of the richest tenants in inverey's grounds. _causa scientiæ patet_; and this is truth, as he shall answer to god. (signed) donald farquharson. p. grant. alexander m'pherson _alias_ m^cgillas, in inverey, being solemnly sworn, purged of malice and partial council, and interrogate, aged twenty-six years, unmarried, depones, that in summer one thousand seven hundred and fifty, he found lying in a moss bank in the hill of christie, a human body, at least the bones of a human body, of which the flesh was mostly consumed, and he believed it to be the body of serjeant davies, because it was reported in the country that he had been murdered in that hill the year before. that when he first found this body, there was a bit of blue cloth upon it pretty entire, which he took to be what is called english cloth; he also found the hair of the deceased, which was of a dark mouse colour, and tied about with a black ribbon: that he also observed some pieces of a stripped stuff, and found also lying there a pair of brogues, which had been made with latches for buckles, which had been cut away by a knife: that he, by help of his staff, brought out the body, and laid it upon plain ground, in doing whereof some of the bones were separated one from another: depones, that for some days he was in a doubt what to do, but meeting with john growar in the moss, he told john what he had found, and john bid him tell nothing of it, otherways he would complain of the deponent to john shaw of daldownie, upon which the deponent resolved to prevent growar's complaint, and go and tell daldownie of it himself; and which having accordingly done, daldownie desired him to conceal the matter, and go and bury the body privately, as it would not be carried to a kirk unkent, and that the same might hurt the country, being under the suspicion of being a rebel country: depones, that some few days thereafter, he acquainted donald farquharson, the preceding witness, of his having seen the body of a dead man in the hill, which he took to be the body of serjeant davies: that farquharson at first doubted the truth of his information, till the deponent having told him that a few nights before when he was in bed, a vision appeared to him as of a man clad in blue, who told the deponent, "i am serjeant davies;" but that before he told him so, the deponent had taken the said vision at first appearance to be a real living man, a brother of donald farquharson's: that the deponent rose from his bed, and followed him to the door, and then it was, as has been told, that he said he was serjeant davies who had been murdered in the hill of christie, about near a year before, and desired the deponent to go to the place he pointed at, where he would find his bones, and that he might go to donald farquharson, and take his assistance to the burying of him: that upon giving donald farquharson this information, donald went along with him, and finding the bones as he informed donald, and having then buried it with the help of a spade which he the deponent had alongst with him: and for putting what is above deponed upon out of doubt, depones, that the above vision was the occasion of his going by himself to see the dead body, and which he did before he either spoke to john growar, daldownie, or any other body: and further depones, that while he was in bed another night after he had first seen the body by himself, but had not buried it, the vision again appeared naked, and minded him to bury the body; and after that he spoke to the other folks above mentioned, and at last complied, and buried the bones above mentioned: depones, that upon the vision's first appearance to the deponent in his bed, and after going out of the door, and being told by it he was serjeant davies, the deponent asked him who it was that had murdered him, to which it made this answer, that if the deponent had not asked him, he might have told him, but as he had asked him, he said he either could not or would not, but which of the two expressions the deponent cannot say; but at the second time the vision made its appearance to him, the deponent renewed the same question, and then the vision answered, that it was the two men now in the panel that had murdered him: and being further interrogate in what manner the vision disappeared from him first and last, depones, that after the short interviews above mentioned, the vision at both times disappeared and vanished out of his sight in the twinkling of an eye; and that in describing the panels by the vision above mentioned as his murderers, his words were, duncan clerk and alexander macdonald: depones, that the conversation betwixt the deponent and the vision was in the irish language: depones, that several times in the harvest before the martinmas after seeing the said vision, he was applied to by duncan clerk, the panel, then to enter home to his service at that time, which accordingly he did, and staid in his service just a year, and he being in the hill together with duncan clerk, spying a young cow, desired the deponent to shoot it; and tho duncan did not bid him carry it home after it should be shot, yet the deponent understood that to be the purpose, when duncan desired him to shoot it, and which the deponent refused to do, adding, that it was such thoughts as these were in his head when he murdered serjeant davies, upon which some angry expressions happened between duncan and the deponent; but when the deponent insisted upon it that he could not deny the murder, duncan fell calm, and desired the deponent to say nothing of that matter, and that he would be a brother to him, and give him every thing he stood in need of, and particularly would help him to stock a farm when he took one; and the time of deponing, the deponent exhibited a paper, which is marked on the back by the lord examiner, the deponent averring he cannot write: and depones, that the said paper was put in his hands by the said duncan clerk, who at the time told him it was a premium of twenty pounds scots to hold his tongue of what he knew of serjeant davies: depones, that while the deponent was in the panel duncan clerk's service, and about lammas seventeen hundred and fifty-one, he showed to the deponent a long green silk purse, and that he showed also to the deponent the contents which were in it, _viz._ sixteen guineas in gold, and some silver: and being interrogate what was the occasion of showing this purse and money to the deponent, depones, it was one of two which he does not remember, either he had come from aberdeen with money, which he had got for his wool, or was going to badenoch to buy sheep: depones, that he saw upon the finger of elizabeth downie, the panel duncan clerk's wife, a yellow ring, which she told him was gold, with a plate on the outside of it, in the form of a seal, and that he saw it on her finger six or eight weeks before her marriage; and that after her marriage, she having one day taken it off her finger, he saw upon the inside of it a stamp, but what that stamp is he does not know. and being interrogate, depones, that he had a suspicion that this ring was serjeant davies's ring, having heard it reported in the country that serjeant davies had such a ring upon his finger when he was murdered, but does not remember his having told his suspicion to any body; and being further interrogate, depones, that since the panel duncan's imprisonment, the deponent was solicited by donald clerk, the panel duncan's brother, to conceal what he knew when he came to give evidence; but this was after his having first solicited the deponent to leave the country, that he might not give evidence, and upon the deponent's saying he offered him nothing to leave the country with; but then it was that donald proposed his not giving true evidence, adding, that of every penny donald was worth, the deponent should have the half; and being interrogate, at the desire of the jury, if ever he had asked payment of the twenty pounds contained in the above-mentioned paper produced by him, depones, that he once did, shortly after the term of payment, to which duncan answered, that it would be as well to let it ly in his hands, to which he was satisfied, and that he never asked payment of the annual rent; and being further interrogate, depones, that before the deponent went home to the panel's service at martinmas one thousand seven hundred and fifty, it was well known and reported in the country that the bones of the dead body found upon the above mentioned hill had been buried by the deponent and donald farquharson, as also was the story of the vision or apparition whereof the deponent had told donald farquharson; and being interrogate for the panel, depones, that he not only told the story of the vision or apparition to donald farquharson, as above mentioned, but that he also told it to john growar and daldownie before he mentioned it to donald farquharson: depones, that there were folks living with him at the sheilling the time the vision appeared to him as above, but that he told it to none of them; and adds, that isobel m'hardie, in inveray, a woman then in the sheilling with him, has told him since, that she saw such a vision as the deponent has above described, and has told him herself so much; and upon the panel's interrogatory, depones, that upon the vision's appearing to him, it described the place where he would find the bones so exactly, that he went within a yard of the place where they lay upon his first going out: and this is the truth, as he shall answer to god; and depones he cannot write. (signed) ja. ferguson. compeared duncan campbell, one of the captains of the city guard of edinburgh, and was solemnly sworn, as he should answer to god, that he should interrogate in the irish language such of the witnesses as should be afterwards adduced in this trial, as could not speak or understand the english language, and reduce the depositions, as they should emit the same, faithfully in the english language into writing. (signed) duncan campbell. ja. ferguson. isobel m'hardie in inverey, who being solemnly sworn, purged of malice and partial council, aged forty and upwards, married, examined and interrogate: depones, that one night about four years ago, when the deponent was lying in one end of the shealling, and alexander m'pherson, who was then her servant, lying in the other, she saw something naked come in at the door, which frighted her so much that she drew the clothes over her head: that when it appeared, it came in in a bowing posture, and that next morning she asked m'pherson what it was that had troubled them the night before? to which he answered, she might be easy, for that it would not trouble them any more. _causa scientiæ patet._ and this is truth, as she shall answer to god. and this deposition is subscribed by the said sworn interpreter. (signed) duncan campbell. ja. ferguson. compeared, james macdonald in allanquoich, solemnly sworn, purged of malice and partial council, aged thirty-one years, married, examined and interrogate: depones, that it is about two or three years since clerk, the panel, was married to elizabeth downie, alexander downie's daughter, and hearing it reported in the country, that he should have said, that if his son-in-law had not killed serjeant davies, serjeant davies would have killed him: that the deponent asked of alexander downie, about lentron last, whether he had said so? and alexander downie acknowledged to him that he had said so: and the deponent heard that the occasion of this report in the country was, that alexander downie being at a miln, some of the people there upbraided alexander downie with his son-in-law clerk, the panel, his having killed the said serjeant: and downie said, as the deponent heard, what could his son-in-law do, since it was in his own defence: depones further, that he saw upon elizabeth downie, clerk's wife, her thumb, a yellow ring, which he took to be gold; and this he saw after her marriage, having a little knap upon it like into a seal, having scores or lines round about it, and this he saw frequently upon her hand, which ring the deponent suspected to be serjeant davies's ring, and it was so suspected in the country. _causa scientiæ patet._ and this is the truth: and says further, that clerk the panel, was reputed to be guilty of thieving in the country, but that he heard nothing to the prejudice of m'donald's character: and being interrogate for the panel, depones, that he never heard clerk the panel, guilty of any particular theft except one of a parcel of sheep, from one alexander farquharson in inverey, about nine or ten years ago. all which is truth, as he shall answer to god; and depones he cannot write. (signed) alex^r fraser. compeared peter m'nab in wester micras, aged fifty-seven years, solemnly sworn, purged of malice and partial council, examined and interrogate: depones, that it is now about four years ago, since he heard it reported in the country, that the two men, clerk and macdonald, the panels, were the people who murdered serjeant davies, and a little time after elizabeth downie was married to clerk the panel: the deponent happened to be in alexander downie her father's house, and then saw upon her finger a ring, pretty massy, having a lump upon it pretty large; and the deponent got the ring into his hand, and the lump appeared to the deponent to be something in the shape of a heart: and the deponent asked elizabeth downie how she came by that ring? to which she answered, that she had bought it from one james lauder, a merchant: the deponent replied, that he thought it was cheap and worth more money, and that it was reported in the country, that the said elizabeth downie was wearing rings of serjeant davies's, but he never saw her have any but that one: and further adds, that he never heard any other suspected of the murder of serjeant davies but the panels, except once, that it was suspected to have been done by caterers; and he also heard, for a twelvemonth after serjeant davies was amissing, that he had deserted; nevertheless the general report or belief of the country was, that the two panels had murdered him. _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) peter macnab. alex^r fraser. compeared isobel ego, in teantoul, aged eighteen years, or thereby, solemnly sworn, purged of malice and partial council, examined and interrogate by the sworn interpreter aforesaid, depones, that about four years ago she found upon the hill of christie a silver-laced hat, with a silver-button on it; which hat she carried home to her master, alexander macdonald in inverey, and delivered it to him. _causa scientiæ patet._ and this is the truth, as she shall answer to god; and depones she cannot write. and this deposition is subscribed by the foresaid sworn interpreter. (signed) duncan campbell. alex^r fraser. compeared alexander macdonald, in inverey, aged thirty years and upwards, married; solemnly sworn, purged of malice and partial council, examined and interrogate, depones, that about four or five years ago, after serjeant davies was amissing, his servant-maid, isobel ego, the immediate preceding witness, being sent to the hills of inverey to look for some horses, when the said servant-maid returned, she told the deponent's wife, as she told him, that she had come home richer than she went out, having found in the hill a silver-laced hat: that his wife, upon seeing the said hat, had no peace of mind, believing it to be serjeant davies's hat, and desired it might be put out of her sight: that the deponent, who was abroad, having come home, took the hat and put it below a stone near to a burn which run by his shealling, where his wife then was: that the hat was carried away from under the said stone, but who it was that carried it off the deponent knows not. _causa scientiæ patet._ and this is the truth, as he shall answer to god; and depones he cannot write. and this deposition is signed by the said sworn interpreter. (signed) duncan campbell. alex^r fraser. donald downie, at the miln of inverey, aged thirty years or thereby; solemnly sworn, purged of malice and partial council, by the sworn interpreter aforesaid, and by him interrogate, depones, that he was loading his horse with corn, to be carried into the barnyeard at the miln of inverey, upon that day that serjeant davies was amissing: that between the midday and sunset he heard three gunshots, but cannot tell from what particular place the sound came: that the three shots were pretty near one another, and all within less than a quarter of an hour. depones, that the hill of christie, libelled, is about a mile's distance to the entrance thereof from the place where he then was, and that it will be at least three miles from there to the place where the bones were found. depones, that he was told that isobel ego, a preceding witness, found a hat in the hill of christie, which she brought home and delivered to her master: that he heard her master hid it at the burnside, under a stone: that some time thereafter some of the bairns of inverey found the said hat, and brought it to his the deponent's father's house, where he saw it; and the hat libelled being shown to him, depones, he having inspected it, that it is the same hat which was so brought to his father's house, and pointed out the letters d. a. thereon at deponing, and that he himself delivered the said hat to james small, factor on the estate of strowan. _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) donald downie. alex^r fraser. john cook, barrackmaster at braemar castle, aged thirty years and upwards, _solutus_, solemnly sworn, purged of malice and partial council, examined and interrogate, depones, that the hat libelled now shown to him, was delivered by donald downie, the preceding witness, to james small, before designed, at the house of one charles, in castletown of braemar, and was delivered to the said deponent by mr small, to be kept by him till it should be called for; and that he brought it along with him to town, and he knows it to be the same by the letters d. a. which he often observed thereon, and now at deponing: depones, that after serjeant davies was amissing, a report sprung up, that one levingston, a soldier, having a prejudice at him, had murdered him; but, upon enquiry, it being found, who had had leave of absence, returned to the garrison the afternoon of that day on which the serjeant was amissing; the report thereon ceased, and about ten days thereafter it was reported that the serjeant had been murdered by two young men about inverey. and about a year and a half after the serjeant had been amissing, he heard duncan clerk the panel named as one of them, but never heard any thing of alexander macdonald, the other panel, till he was committed prisoner to the castle of braemar in september last. _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) john cook. hew dalrymple. compeared john grant, in altalaat, aged forty years and upwards, married, solemnly sworn, purged of malice and partial council, examined and interrogate: depones, that both the panels lodged in his house upon the night of the twenty-seventh of september, one thousand seven hundred and forty-nine: that next morning they breakfasted, after the sun rising, with him; and as he was going to a michaelmas fair, when he came out of his house, he looked and saw the two panels at his door, each having a gun in his hand, and they told him that they intended to go a deer hunting, but did not mention to what place: that the deponent accordingly went to the fair, and returned in about four days home, and then heard that a soldier who had been upon some of the hills was amissing, and in a very short time heard it was serjeant davies: that at first it was rumoured that some of the serjeant's own men had killed him; and afterwards that he had been killed by some outlaws; and after that it was clattered that the panels had killed him: depones, that the night the panels lodged with him as above, one of them talked of going the next morning in quest of horses for leading in corn, without mentioning from where. _causa scientiæ patet._ and this is the truth, as he shall answer to god. this deposition signed by duncan campbell, sworn interpreter. (signed) duncan campbell. hew dalrymple. john grant, son to the said john grant in altalaat, aged twenty years, solemnly sworn, purged of malice and partial council, by the sworn interpreter aforesaid, and by him interrogate: depones, that he knows the panels, and that they lodged with his father the night of the twenty-seventh of september, one thousand seven hundred and forty-nine: that next morning the panels, each of them having a gun, and duncan clerk a grey plaid about him, went up the water to the hill of gleneye, which is about a mile and a half distant from the hill of christie: that the road they took was not the direct road to the hill last named; and before they went they said they were going a deer hunting and for horses to lead in their corns: that three or four days after this, they heard that serjeant davies was amissing, and that he was killed in the hill of christie; but the last part of this he did not hear till some time, a year or two thereafter. _causa scientiæ patet._ and this is truth, as he shall answer to god. (signed) duncan campbell. hew dalrymple. elspeth macara, in inverey, late servant to duncan clerk, one of the panels, aged thirty-two years; solemnly sworn, purged of malice and partial council, as aforesaid, and interrogate, depones, that she was fellow-servant, about three years ago, with alexander macgillies, a preceding witness, in duncan clerk, the panel's house: that she once saw in the said alexander's hands a yellow ring, but knows not if it was gold, with a knob upon it of the same metal; which ring she frequently observed on the finger of the wife of the said duncan clerk. and further depones, that the said knob was bigger above and smaller below, and shaped something like a heart. _causa scientiæ patet._ and this is truth, as she shall answer to god. this deposition signed by the above interpreter. (signed) duncan campbell. hew dalrymple. john growar, in inverey, aged fifty years and upwards, a widower; who being solemnly sworn, purged of partial council, and interrogate, depones, that upon the th of september, , the deponent having gone to a glen called glenconie, to bring home his horses to lead in the corns, he met with serjeant davies, of whom he had some acquaintance before; and he had at that time a good deal of conversation with him, particularly with relation to a tartan coat which the serjeant had observed the deponent to drop, and after strictly enjoining him not to use it again, dismissed him, instead of making him prisoner: that the deponent went home with his horses, and saw no more of the serjeant, who was alone; and that their meeting was about an hour after sunrising, to the best of the deponent's knowledge: that some time thereafter, about four years ago, he was told by alexander macpherson _alias_ m'gillies, a former witness, that the serjeant's ghost had appeared to him, m'gillies, and had desired him to bury his, the serjeant's, bones, and to bring donald farquharson, also a former witness, along with him; but m'gillies at that time did not mention the place where the bones were to be found, but afterwards told the deponent that the serjeant's bones were found in the place to which the ghost had directed him; and one day the said m'gillies and the deponent being in the hill together, he, m'gillies, pointed to him the place where they were found, which was not far from the place in which he had formerly met serjeant davies, upon the th of september aforesaid; and that two years ago, in labouring time, the said m'gillies told him that the said ghost came to m'gillies's master's house, and the door flung open, and took m'gillies out of the house, and told him that the panels had been his murderers. depones, that about two years ago he had a conversation with m'gillies, who told him, that one day coming from the hill with duncan clerk, the panel, then his master, and another time when in bed, he had a conversation with the said duncan concerning serjeant davies's murder, and all the answer duncan made was, what can you say of an unfortunate man? depones, that about ten or eleven years ago, duncan clerk, the panel, was said to have stolen some sheep from one alexander farquharson, in inverey, and there was a sheriff-court held upon that matter at the mill of achindryne, in which nothing was found against the said duncan, but john ewes alias m'donald was fined, and the deponent became cautioner for him, that he should never speak about it again. _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) john grewer. hew dalrymple. angus cameron, in easter finart, rannach, aged thirty years and upwards, solemnly sworn, purged of malice and partial council, by duncan campbell, sworn interpreter, and by him interrogate, depones, that he was in braemaar four years past at michaelmas last; that is, in the year : that about an hour and a half before sun-set on the th of september, he being on the hill of galcharn, on the side thereof, saw a man in a blue coat, with a gun in his hand, with a hat which had a white edging about it, he knows not whether it was silver or not; and saw other two men, one of whom was the panel duncan clerk, who he had seen upon former occasions, and another man of a lower stature than the said duncan clerk, coming up the hill towards the first mentioned man, who was distant from him, the deponent, about a gunshot, upon, or near the top of a hill opposite to him, the deponent, the name of which he does not know, he being a stranger in that country; that there was another man along with him, the deponent, named duncan cameron, and that they were waiting there for other travellers, and his said companion is dead about three years ago: depones, that he saw duncan clerk, the panel, and his companion, whom he did not, nor does not know, meet with the man clad in blue, as aforesaid; and after they had stood for some time together, he saw duncan clerk, the panel, strike at the man in blue, as he thought, with his naked hand only, upon the breast; but, upon the stroke, he heard the man struck cry out, and clap his hand upon the place struck, turn about, and go off: that the panel duncan clerk and the other man stood still for a little, and then followed after the man in blue, and saw him, the said duncan and the other man, each of whom had a gun, fire at the man in blue: that the two shots were very near one another; and immediately upon them, the man in blue fell: that duncan clerk, the panel, had upon him a grey plaid, with some red in it, whom he saw that same day, and his companion along with him, (but spoke to none of them,) about mid-day, and that they passed him as he was lying upon the same hill; and that both times that same day, that he had occasion to see the said duncan clerk and his companion, he was lying in a little hollow upon the side of the said hill of galcharn, in such a manner, as he thinks, neither the said duncan clerk, or his companion did see him: and depones, that there was no long heather in the said hollow where he was lying: depones, that after the man in blue fell, in manner above mentioned, the panel duncan clerk, and his companion, went up to him; and as it was the deponent's opinion the man was dead, he saw them stoop down, and handle his body; and while they were so employed, he, the deponent, and his companion, got up, and made off: depones, that he did not mention any thing of the premises to any body for nine months or a twelve month, and then he spoke of it to one donald cameron, and to duncan cameron, a different man from him above mentioned, who advised him to say nothing of it, as it might get ill-will to himself, and bring trouble on the country; some people that he told it to said, that people would not believe him, but rather think he was telling lies: that it was six months after what he saw, and has deponed upon, that he heard that serjeant davies was amissing. and being interrogate for the panels, depones, that he came to the said hill of galcharn, and lay down in the hollow about two hours after sun-rising; and depones, that he and his companion were, the night before the twenty-eighth of september aforesaid, in glenbruar braes, which is about ten miles distant from the hill of galcharn; and that he left these braes about the end of said night; and that the travellers that he expected to pass that day were donald cameron, who was afterwards hanged, together with some of the said donald's companions from lochaber. _causa scientiæ patet._ and this is the truth, as he shall answer to god. this deposition signed by the sworn interpreter aforesaid. (signed) duncan campbell. hew dalrymple. duncan cameron, in dunan, aged twenty-eight years, unmarried, solemnly sworn, purged of malice and partial council, examined and interrogate, depones, that in the summer after he had heard that one serjeant davies was amissing, angus cameron, a preceding witness, told the deponent that he saw duncan clerk, and another person unknown, shoot a man in braemaar, whom the said angus, by his dress, believed to be a serjeant or officer; upon which the deponent said he did not want to hear any more on that subject. _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) duncan cameron. gilb. elliot. donald dow cameron, in milntown of ashintilly, strathardle, aged forty-four years, married; who being solemnly sworn, and purged of partial council, by duncan campbell, sworn interpreter aforesaid, and by him interrogate, depones, that in the summer after he heard that a serjeant in braemaar was amissing, whose name he thinks was davidson, or something like that, angus cameron, a preceding witness, told the deponent that he had seen duncan clerk the panel, and another man along with him, shoot a man, like a gentleman or an officer, upon a hill in braemaar: that upon this the deponent told the said angus cameron that he did not want to hear more any such stories, nor to have such a report raised of the country; and the deponent at the same time advised angus to keep the thing secret, and to speak no more on the subject. _causa scientiæ patet._ and this is the truth, as he shall answer to god. this deposition signed by the sworn interpreter aforesaid. (signed) duncan campbell. gilb. elliot. lauchlan m'intosh, in inverey, aged near thirty years, unmarried, solemnly sworn, purged of malice and partial council, examined and interrogate by the sworn interpreter aforesaid, depones, that the panel, duncan clerk's father, his house is within less than a quarter of a mile of the deponent's house: that upon the afternoon of that day in which serjeant davies was amissing, as he thinks, or at least the afternoon of the day following, he cannot be altogether positive which, he saw duncan clerk, panel, come from the hill to his father's house, with a gun in his hand, and a sort of grey plaid about him: that he does not remember that he saw him about his father's house before that time in the afternoon of that day. _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) lauchlan m'intosh. gilb. elliot. jean davidson, spouse to gregor keir, in inverey, aged thirty years, married; who being solemnly sworn, and purged of malice and partial council, by the sworn interpreter aforesaid, depones, that she lived in the same town with duncan clerk, the panel's father, who is now dead: that the evening of the day upon which serjeant davies was first amissing, she saw duncan clerk, the panel, return from the hill to his father's house about sun-setting, having a plaid upon him, with a good deal of red in it, but whether he had a gun in his hand the deponent did not observe: that duncan clerk's father was that day working among his corns; and the deponent did not see the said duncan about the town till the evening, as above deponed upon. and further depones, being interrogate for the panel, that when she first saw duncan clerk, she was among the corns with his father a little below the town, and that duncan was about a gun-shot from her, coming towards his father's house from the hill, and that he came near to the place where she was with his father. _causa scientiæ patet._ and this is the truth, as she shall answer to god. and this deposition is signed by the foresaid sworn interpreter. (signed) duncan campbell. alex^r fraser. lauchlan m'intosh, servant to william grant of burnside, aged twenty-one years, solemnly sworn, purged of malice and partial council, examined and interrogate, depones, that he was a servant to michael farquharson in dubrach, in whose house serjeant davies quartered: that he saw the serjeant have a little pen-knife, upon the end of the haft of which there was a seal for sealing of letters, and he heard the serjeant say that was the use he made of the said seal: that he saw serjeant davies leave his master's house about sun-rising that day upon which he was amissing; that he never saw him since: that about two years thereafter, being on the hill with alexander macdonald the panel, and the said alexander macdonald had in his hand a pen-knife, which the deponent saw, very like the pen-knife which serjeant davies had above mentioned: that the deponent, upon seeing that pen-knife, told macdonald that the pen-knife he then had was very like serjeant davies's pen-knife, and macdonald made answer that there were many siclikes: and further depones, that he saw the serjeant have a green silk purse, in which he saw the serjeant put in and take out several pieces of gold: the deponent does not remember what the handle of the serjeant's knife was made of, nor does he remember what was engraven on the end of the handle of the pen-knife which the serjeant had, nor the end of the handle of the pen-knife which macdonald had, but that both seals were white. _causa scientiæ patet._ and this is the truth, as he shall answer to god. and depones he cannot write. (signed) alex^r fraser. john brown in drumcraggan, aged sixty years, or thereby, solemnly sworn, purged of malice and partial council by the sworn interpreter aforesaid, and by him interrogate, depones, that he was ground-officer for the lands of inverey, and was so at the time when serjeant davies's body was amissing: that he was ordered by the chamberlain of inverey, to call out the country people in search for serjeant davies's body, which accordingly he did search for with the country people for two days, without finding it: that the last of the two days, as the deponent and the country people were returning home, and had given over the search, the panel, duncan clerk, challenged the deponent for troubling the country people with such an errand, and upon this the deponent and the said duncan clerk had some scolding words. _causa scientiæ patet._ and this is the truth, as he shall answer to god. and depones he cannot write. and this disposition is signed by the foresaid sworn interpreter. (signed) duncan campbell. alex^r fraser. _follows the witnesses adduced by the panels in exculpation._ captain john forbes of new, aged forty-five years, married, who being solemnly sworn, purged of malice and partial council, examined and interrogate, depones, that james small having suggested to the deponent that it might be proper that duncan clerk the panel's wife, should be examined upon what rings she had in her possession, and that some other witnesses in relation thereto, might be precognosced, presented a petition to the deponent, as the next justice of peace to where she lived, craving, to the purpose above mentioned: that the deponent went for that end to braemaar; and she being summoned to appear at the castletown of braemaar, appeared before the deponent, and declared, in substance, as follows: that since she was married, a small brass ring, which she then presented to the deponent, and a gold ring which she got from her mother, and wore sometimes, were the only rings that she had since her marriage; and that before her marriage she got a copper ring from one allan m'donald, brother to james macdonald, in allanquoich, with a round knot of the same metal raised upon it, which, the summer before she was married, she gave to alexander m'intosh alias rioch, then a glen-herd, and now servant to thomas gordon in fetherletter, in strathaven, and that she was married to the said duncan clerk, panel, in harvest . _causa scientiæ patet._ and this is the truth, as he shall answer to god. (signed) john forbes. hew dalrymple. duncan keir, in glenmuick, aged twenty and upwards, unmarried, solemnly sworn, purged and interrogate, depones, that the day that the braemaar men were going to the michaelmas fair in strathaven, which was the day before the said fair held, he saw duncan clerk, the panel, at gleney, where the deponent then lived, before he and the other shearers there had got their dinner, and that they dined sometimes later and sometimes more early, and cannot tell at what time they dined that day, but the sun was a good while high when he saw him: that he had on a plaid, which he thinks was grey: that gleney is a mile farther up the water than inverey towards the hill; and the next day, after he saw the said duncan clerk as above, he heard that serjeant davies was amissing. _causa scientiæ patet._ and this is the truth, as he shall answer to god. and depones he cannot write. (signed) hew dalrymple. elizabeth macdonald, in tulloch of invercauld, aged twenty-eight years, unmarried, solemnly sworn, purged and interrogate by the sworn interpreter aforesaid, depones, that the day before she heard serjeant davies was amissing, she saw duncan clerk, the panel, at the shearers of gleney, but did not observe from whence he came: that she does not remember that he had either a gun or a plaid, but thinks that he had a short blue coat upon him, and that gleney is a mile farther up the water towards the hill than inverey: that when she saw the said panel it was before dinner, which they took early that day, being betwixt twelve and one; and that duncan keir, the preceding witness, was one of the said shearers; and that gleney is about a mile from glenconie. _causa scientiæ patet._ and this is the truth, as she shall answer to god. this deposition signed by the said sworn interpreter. (signed) duncan campbell. hew dalrymple. the lords commissioners of justiciary fine and amerciate ronald macdonald, brother to james macdonald in allanquoich, and alexander macintosh _alias_ reoch, now servant to thomas gordon of fetterletter, in strathaven, and each of them, in the sum of one hundred merks scots money, for their not appearing this day and place, to bear leal and soothfast witnessing, in so far as they knew, or should be asked at them, anent the said panels, duncan terig _alias_ clerk, and alexander bain macdonald, their guiltiness of the crime of murder mentioned in the said indictment, raised at the instance of his majesty's advocate against them thereanent, as they, who were lawfully cited for that effect, thrice called, and not compearing. (signed) gilb. elliot, i.p.d. the lords ordain the assize forthwith to inclose in the exchequer-room, and to return their verdict against six o'clock in the afternoon to-morrow, in this place; and ordain the haill fifteen then to be present, and the panels to be carried back to prison. _curia justiciaria s. d. n. regis tenta in nova sessionis domo burgi de edinburgh, duodecimo die mensis junij, , per honorabiles viros carolum areskine de alva, justiciarium clericum, dominum gilbertum elliot de minto, magistros alexandrum fraser de strichen, patricium grant de elchies, et hugonem dalrymple de drummore, commissionarios justiciarios dict. s. d. n. regis._ _curia legittime affirmata._ intran. duncan terig _alias_ clerk, and alexander bain macdonald,--panels. indicted and accused as in the former sederunt. the persons who past upon the assize of the said panels, returned their verdict, in presence of the saids lords, whereof the tenor follows: at edinburgh, the twelfth day of june, one thousand seven hundred and fifty-four years. the above assize having inclosed, and having made choice of robert forrester to be their chancellor, and william sands to be their clerk; and having considered the criminal indictment pursued at the instance of william grant of prestongrange, esq., his majestie's advocate, for his majestie's interest, against duncan terig alias clerk, and alexander bain macdonald, both now prisoners in the tolbooth of edinburgh, panels, with the lords justice-clerk and commissioners of justiciary, their interlocutor thereupon; together with the depositions of the witnesses adduced for proving thereof; and the depositions of the witnesses adduced for the exculpation of the panels, they all, in one voice, find the above-named panels not guilty of the crimes libelled. in witness whereof, their said chancellor and clerk, in their names, have subscribed thir presents, place and date foresaid. (signed) rob^t forrester, _chanl^r_. william sands, _clerk_. the lords justice-clerk and commissioners of justiciary, in respect of the foresaid verdict of assize returned against the said duncan terig _alias_ clerk, and alexander bain macdonald, panels, assoilzie them simpliciter, and dismiss them from the bar. (signed) ch. areskine, i.p.d. state trials _all rights reserved_ [illustration: w ralegh.] state trials political and social selected and edited by h. l. stephen in two volumes vol. i [illustration] london duckworth and co. new york: the macmillan company edinburgh: t. and a. constable, printers to her majesty contents page introduction, vii sir walter raleigh, charles i., the regicides, colonel turner and others, the suffolk witches, alice lisle, _the portraits of_ sir walter raleigh _and_ lord russell _are taken from photographs of pictures in the national portrait gallery, by permission of_ messrs. walker and boutall. to g. de l'É. d. dear gerald,--as you suggested the idea of this book to me, and as i know that whether it succeeds or fails i can count confidently on your sympathy, i will throw into the form of a letter to you the few remarks which i might otherwise put into a preface. for as i have confessions to make which amount almost to an apology, i had rather address them to one who is pledged to express the most favourable possible view of my literary efforts, such as they are, than to that hypothetical reader, of whose tastes i feel most shamefully ignorant, though i am ready to assume everything in his favour. far abler writers than i have frequently dilated on the charms attending a study of the reports of state trials, as they are best known to the world; namely, in one-and-twenty stately volumes compiled by the industrious howells, father and son, and published, a year after the battle of waterloo, by the combined efforts of on a few of my contemporaries the idea that persons long since dead on the block or the gallows were englishmen very much like ourselves, my object is secured. my task has been confined to a selection of passages to be transferred bodily from howell's pages; to providing in an abbreviated form the connecting-links between them; and to the supply of sufficient notes to enable the ordinary reader to understand the main outlines of the stories of which the trial generally constitutes the catastrophe. as to my takings from howell, i need say but little. i have indicated their existence by a change of type. i have carefully preserved those departures from conventional grammar, and that involved and uncouth, but, for that very reason, life-like style of narration which he and his predecessors inherited from the original but unknown authorities. as to my abbreviations, i am fully aware that they do not represent any very high literary effort. it is, i suppose, impossible that mere condensation of another man's narrative should be done very well; but it can certainly be done very ill. my aim, therefore, has been rather to escape disaster than to achieve any brilliant success. the charm of state trials lies largely in matters of detail:--that hale allowed two old women to be executed for witchcraft; that lord russell was obviously a traitor; that an eminent judge did not murder a woman in the early part of his career; and that a sea-captain did murder his brother in order to inherit his wealth, are in themselves facts of varying importance. what the trials in these cases tell us, however, as nothing else can, is what were the popular beliefs as to witchcraft shared by such a man as hale; how revolutions were planned while such things were still an important factor in practical politics; and what was the state of the second city in the kingdom when a man could be kidnapped in its busiest streets by a gang of sailors and privateers-men. and this effect can only be reproduced by considering a mass of detail, picturesque enough in itself, but not always strictly relevant to the matter in hand. again, to a lawyer at all events, it is impossible to omit those matters which show that the process which goes on at regular intervals in all the criminal courts in the country is essentially the same that it always has been since the reformation; and accordingly i have not hesitated to indicate as fully as my original made possible the procedure, in the narrower sense of the word, followed at the various trials reported. in the matter of notes i have done my best, in a very narrow compass, to indicate how the trials were connected with contemporary history. i have also reminded the reader (to use the conventional phrase) of the fate of the various characters who are to be met with in each trial. in particular, i have aimed at bringing to the fore what must, after all, be the main point of interest in any trial; namely, who were the counsel briefed, and how they came to be briefed; who were the judges that tried it, how they came to be judges, and what position they held in the opinion of the junior bar at the time. for this part of my work i have taken care to have recourse to the best and most modern authority, and have stated hardly any facts which are not vouched for by the editor of the _dictionary of national biography_. in my selection of cases to be reported i have been guided by a variety of considerations. personally, i admit that i like the political cases best. there is a squalor about private crime, which, though i like it myself, is inferior to politics as a staple. besides, one has heard of the heroes of the political trials before; and to read raleigh's little retort when coke complains of a want of words adequately to express his opinion of raleigh; to be reminded how the worst of kings proved himself an admirable lawyer, and the possessor of manners which, in a humbler station, would assuredly have made the man; to hear the jokes as to essex's responsibility for the financial prospects of the proposed revolution which amused the company of desperate men in the wine-merchant's upper room; to come across the ghost of the conversation in lonely st. martin's lane between the revellers at the greyhound tavern, and its interruption by the hostile band hurrying to the duel in leicester fields, creates, in my mind at least, the fantastic illusion that raleigh, charles i., russell, mohun, and the rest of them were all once actually alive. i feel that i have unduly neglected the claims of what, at the period i have had to do with, was the sister kingdom of scotland. the scotch were not then, taking the difference of the population of the two countries into consideration, at all behind the english in the production of treason, murder, and other interesting forms of crime; and their misdeeds were in many respects the more picturesque of the two. i had hoped to place before my readers the true account, or what passes for such, of that murder of colin roy campbell of glenure which, as we now know, produced such romantic consequences for david balfour. the 'forty-five should have been represented, and lord lovat's adventures ought to have served my purpose to a turn. but, alas! the lawyers on these occasions have been hopelessly beaten by the professed story-tellers; and the reports of the trials of lord lovat and james stewart are as dull as the romances of _waverley_ and _catriona_ are entrancing. why this should be so i do not know. i can ascribe it only to the inferiority of the scots criminal procedure to our own; and ignorance prevents me from proving that inferiority by any other fact than the one which i am anxious to account for. after diligent and minute inquiry, i am pleased, though not surprised, to find that ireland was perfectly free from serious crime during the whole of the seventeenth and eighteenth centuries. since making my selection of trials i have become aware that mr. leslie stephen, in his _hours in a library_, has chosen for notice precisely those trials which i have reported. i must disclaim any merit in having made the same selection as such an eminent critic; but at the same time i can confidently affirm that my choice was made before i had read the essay in question. whether i have been guilty of the crime of plagiarism in this particular i cannot say; neither, as far as that goes, do i care. my readers at least have no reason to complain, and i can count on you, gerald, to join with me in deprecating the wrath of the outraged author. trusting confidently in your co-operation to secure for this little collection as favourable a reception as may be from that public for whose taste we both have so much respect,--i remain, yours to command, h. l. stephen. the inner temple, _ st december ._ sir walter raleigh[ ] raleigh's trial is so closely connected with the politics of the time that it cannot be properly understood without reference to them. james owed his succession to the throne, at all events the undisputed recognition of his right to that succession, in a great measure to cecil's elaborate and careful preparations. it was therefore natural enough that cecil's position as chief minister should be confirmed at the beginning of the new reign: but this fact drove two important parties into opposition to the new order of things. the earl of northumberland, lord grey, lord cobham, and sir walter raleigh found themselves deprived of all chance of obtaining power, and the catholics gradually realised that their position was not likely to be substantially improved. northumberland indeed was won back by promises of royal favour, but raleigh was deprived of his captainship of the royal guards and his post of warden of the stannaries, whilst his monopoly in wine was threatened. the all-important question of foreign politics formed a centre on which the international struggle for power turned. james himself was a stranger to the national hatred for the spaniards which had hitherto been raleigh's guiding principle. cecil was probably more anxious for peace than anything else, though desirous to do all he could to advance the power of the netherlands and hold the spaniards in check. meanwhile the various foreign powers concerned prepared to make what profit they could out of the altered state of england. a mission from the netherlands effected practically nothing. the duke of sully, the ambassador from henry iv. of france, obtained some assistance towards prolonging the defence of ostend against the spanish forces. the archduke albert[ ] sent the duke of aremberg, not to negotiate, but to protract the time till the court of spain could decide upon a policy. northumberland, together with raleigh and cobham, seem to have made overtures to sully which were rejected, on which the two latter transferred their attentions to the spanish interest, and certainly put themselves into communication with aremberg. meanwhile an extreme and apparently weak party among the catholics entered into an obscure and violent undertaking popularly known as the 'surprising' or 'bye' plot as contrasted with raleigh's, known as the 'main.' watson, a secular priest, whose main motive, in professor gardiner's view, was a hatred of the jesuits, had taken a leading part in reconciling the english catholics to james's accession. irritated by the exaction of fines for recusancy instituted at the beginning of the new reign, he allied himself with clarke, another priest, sir griffin markham, a catholic gentleman discontented with the government for private reasons, george brooke, lord cobham's brother, and lord grey. a fantastic scheme propounded by markham was adopted, and the conspirators decided to seize the king while hunting, to carry him to the tower, on the plea of protecting him from his enemies, and there install themselves in power under the shadow of his name. they were, as represented by coke in raleigh's trial, to swear to protect the sovereign from all his enemies, and they affected to have a large following in the country. copley, an insignificant recruit, was added to the party, and the execution of the plot was fixed for the th of june. on that day, however, their partisans proved to be too few for their designs, and the next day grey separated himself from them. meanwhile the jesuits had become aware of the plot and communicated their knowledge to the government; and the conspirators were soon arrested. the connection of brooke with the 'bye' plot suggested cobham's complicity; and raleigh, as his nearest friend, was summoned to windsor by cecil to be examined before the council. after this examination he wrote the letter to cobham so often referred to in the trial, saying that he had said nothing to compromise him, and reminding him that one witness, possibly referring either to aremberg's servant, or brooke, was not enough to convict of treason. he subsequently wrote to cecil informing him that cobham had been in communication with aremberg, and cobham was arrested. raleigh's own arrest followed on july th, and within a fortnight he attempted to commit suicide. he and cobham were both subsequently examined, with the results that appear in the course of the trial. it must be remembered that the government probably had a quantity of private information which they did not produce, partly no doubt with the view of protecting aremberg. this is particularly so in relation to the most serious part of the case; that, namely, relating to the scheme of placing lady arabella on the throne; as to which see gardiner's _history_, vol. i. pp. , . the leading members of the 'bye' were tried and convicted two days before raleigh. cobham and grey were tried and convicted by the chancellor sitting as lord steward soon after. the two priests and brooke were hung. cobham, grey, and markham were brought to the scaffold that they might be induced to make their dying declarations, and were then granted their lives. cobham, when in instant expectation of death, persisted in avowing raleigh's guilt. beyond the interest that attaches to raleigh's trial from the historical and personal points of view, it is interesting as showing the methods in which an important trial was conducted at the beginning of the seventeenth century. the most remarkable feature of the trial itself in the eyes of a modern reader, beyond its extreme informality, is that raleigh was condemned on the statement of a confederate, who spoke under extreme pressure, with every inducement to exculpate himself at raleigh's expense, and whom raleigh never had a chance of meeting. the reasons given by popham for refusing to allow cobham to be called as a witness at the trial are instructive, and, as professor gardiner points out, prove that in political trials at all events, when the government had decided that the circumstances of the case were sufficient to justify them in putting a man on his trial, the view of the court before which he was tried was that he was to be condemned unless he succeeded in proving his innocence. this fact alone leads the modern englishman to sympathise with raleigh, and this feeling is naturally increased by what sir james stephen calls the 'rancorous ferocity' of coke's behaviour. the second cause added to raleigh's popularity, and the political reasons which led to his trial are probably what produced the same feelings among his contemporaries. it is beyond my present purpose to discuss how far raleigh was really guilty of treason, even were i competent to express any opinion on the subject worth attending to. but for the credit of the lawyers who presided at the trial, i may point out that the assertions that the statute of edward vi., requiring two witnesses in cases of treason, had been repealed, and that the trial at common law was by examination, and not by a jury and witnesses, were not as incomprehensibly unjust as they appear to us. a statute of philip and mary enacted that cases of treason should be tried according to the due order and course of common law, and the statute of edward vi., being regarded as an innovation upon the common law, was thus held to be implicitly repealed. the rule as to the two witnesses seems to have been construed as referring to trial by witnesses as it existed under the civil law, which was taken to require two eye- or ear-witnesses to the actual fact constituting the crime. with such a trial, trial by jury was frequently contrasted, and if the rigour of the civil law was not to be insisted on, the only alternative seemed to be that the jury should form their opinion as they could, if not from their own knowledge, then from any materials that might be laid before them. this naturally did away with any rules of evidence as we understand them, and consequently cobham's confession became as good evidence as the jury could expect to have. in fact, as sir james stephen says, 'the only rules of evidence as to matters of fact recognised in the sixteenth century seem to have been the clumsy rules of the mediæval civil law, which were supposed to be based on the bible. if they were set aside, the jury were absolute, practically absolute, and might decide upon anything which they thought fit to consider evidence.' see further gardiner's _history_, vol. i. pp. - ; and stephen's _history of the criminal law_, vol. i. pp. - . sir walter raleigh was tried at winchester on the th of november before a commission consisting of thomas howard,[ ] earl of suffolk, lord chamberlain; charles blunt,[ ] earl of devon; lord henry howard,[ ] afterwards earl of northampton; robert cecil,[ ] earl of salisbury; edward, lord wotton of morley; sir john stanhope, vice-chamberlain; lord chief-justice of england popham;[ ] lord chief-justice of the common pleas anderson;[ ] justices gawdie and warburton; and sir w. wade. the indictment charged raleigh with high treason by conspiring to deprive the king of his government; to alter religion; to bring in the roman superstition; and to procure foreign enemies to invade the kingdom. the facts alleged to support these charges were that lord cobham,[ ] on the th of june , met raleigh at durham house in london, and conferred with him as to advancing lady arabella stuart[ ] to the throne; that it was there agreed that cobham should, with aremberg, the ambassador of the archduke of austria, bargain for a bribe of , crowns; that cobham should go to the archduke albert, to procure his support for lady arabella, and from him to the king of spain; that lady arabella should write three letters to the archduke, to the king of spain, and to the duke of savoy, promising to establish peace between england and spain, to tolerate the popish and roman superstition, and to be ruled by them as to her marriage. cobham was then to return to jersey, where he would find raleigh and take counsel with him as to how to distribute aremberg's bribe. on the same day cobham told his brother brook of all these treasons, and persuaded him to assent to them; afterwards cobham and brook spoke these words, 'that there would never be a good world in england till the king (meaning our sovereign lord) and his cubs (meaning his royal issue) were taken away.' further raleigh published a book to cobham, written against the title of the king, and cobham published the same book to brook. further, cobham, on the th of june, at raleigh's instigation, moved brook to incite lady arabella to write the letters as aforesaid. also on the th of june cobham, at raleigh's instigation, wrote to aremberg through one matthew de lawrency, to obtain the , crowns, which were promised to him on the th of june, and of which cobham promised to raleigh and , to brook. to this indictment raleigh pleaded not guilty; and a jury was sworn, to none of whom raleigh took any objection. heale, the king's serjeant, then opened the case very shortly, merely reciting the facts mentioned in the indictment, concluding: 'now, whether these things were bred in a hollow tree, i leave him to speak of, who can speak far better than myself; and so sat down again. attorney-general (sir ed. coke[ ])--i must first, my lords, before i come to the cause, give one caution, because we shall often mention persons of eminent places, some of them great monarchs: whatever we say of them, we shall but repeat what others have said of them; i mean the capital offenders, in their confessions. we professing law must speak reverently of kings and potentates. i perceive these honourable lords, and the rest of this great assembly, are come to hear what hath been scattered upon the wrack of report. we carry a just mind, to condemn no man, but upon plain evidence. here is mischief, mischief _in summo gradu_, exorbitant mischief. my speech shall chiefly touch these three points: imitation, supportation, and defence. the imitation of evil ever exceeds the precedent; as on the contrary, imitation of good ever comes short. mischief cannot be supported but by mischief; yea, it will so multiply, that it will bring all to confusion. mischief is ever underpropped by falsehood or foul practices: and because all these things did concur in this treason, you shall understand the main, as before you did the bye. the treason of the bye consisteth in these points: first that the lord grey, brook, markham, and the rest, intended by force in the night to surprise the king's court; which was a rebellion in the heart of the realm, yea, in the heart of the heart, in the court. they intended to take him that is a sovereign, to make him subject to their power, purposing to open the doors with musquets and cavaliers, and to take also the prince and council: then under the king's authority to carry the king to the tower; and to make a stale of the admiral. when they had the king there, to extort three things from him, first, a pardon for all their treasons: secondly, a toleration of the roman superstition; which their eyes shall sooner fall out than they shall ever see; for the king hath spoken these words in the hearing of many, 'i will lose the crown and my life, before ever i will alter religion.' and thirdly, to remove counsellors. in the room of the lord chancellor, they would have placed one watson, a priest, absurd in humanity and ignorant in divinity. brook, of whom i will speak nothing, lord treasurer. the great secretary must be markham; _oculus patriæ_. a hole must be found in my lord chief-justice's coat. grey must be earl-marshal, and master of the horse, because he would have a table in court; marry, he would advance the earl of worcester to a higher place. all this cannot be done without a multitude: therefore watson the priest tells a resolute man that the king was in danger of puritans and jesuits; so to bring him in blindfold into the action saying, that the king is no king till he be crowned; therefore every man might right his own wrongs: but he is _rex natus_, his dignity descends as well as yours, my lords. then watson imposeth a blasphemous oath, that they should swear to defend the king's person; to keep secret what was given them in charge, and seek all ways and means to advance the catholic religion. then they intend to send for the lord mayor and the aldermen, in the king's name, to the tower; lest they should make any resistance, and then take hostages of them; and to enjoin them to provide for them victuals and munition. grey, because the king removed before midsummer, had a further reach to get a company of sword-men to assist the action: therefore he would stay till he had obtained a regiment from ostend or austria. so you see these treasons were like sampson's foxes, which were joined in their tails, though their heads were severed. raleigh--you gentlemen of the jury, i pray remember, i am not charged with the bye, being the treason of the priest. attorney--you are not. my lords, you shall observe three things in the treasons: . they had a watch-word (the king's safety): their pretence was _bonum in se_; their intent was _malum in se_: . they avouched scripture; both the priests had _scriptum est_: perverting and ignorantly mistaking the scriptures; . they avouched the common law, to prove that he was no king until he was crowned; alledging a statute of elizabeth. he then proceeds to mention other cases of treason where the accused had considered that their acts were _bonum in se_, and, defining treason, lays down that-- there is treason in the heart, in the hand, in the mouth, in consummation: comparing that _in corde_ to the root of a tree; _in ore_, to the bud; _in manu_, to the blossom; and that which is _in consummatione_, to the fruit. now i come to your charge, you of the jury: the greatness of treason is to be considered in these two things, _determinatione finis_, and _electione mediorum_. this treason excelleth in both, for that it was to destroy the king and his progeny. these treasons are said to be _crimen læsæ majestatis_; this goeth further, and may be termed, _crimen extirpandæ regiæ majestatis_, and _totius progenici suæ_. i shall not need, my lord, to speak anything concerning the king, nor of the bounty and sweetness of his nature whose thoughts are innocent, whose words are full of wisdom and learning, and whose works are full of honour, although it be a true saying, _nunquam nimis quod nunquam satis_. but to whom do you bear malice? to the children? raleigh--to whom speak you this? you tell me news i never heard of. attorney--o sir, do i? i will prove you the notoriest traitor that ever came to the bar. after you have taken away the king, you would alter religion: as you, sir walter raleigh, have followed them of the bye in imitation: for i will charge you with the words. raleigh--your words cannot condemn me; my innocency is my defence. prove one of these things wherewith you have charged me, and i will confess the whole indictment, and that i am the horriblest traitor that ever lived, and worthy to be crucified with a thousand thousand torments. attorney--nay, i will prove all: thou art a monster; thou hath an english face but a spanish heart. now you must have money; aremberg was no sooner in england (i charge thee, raleigh) but thou incitest cobham to go unto him, and to deal with him for money, to bestow on discontented persons, to raise rebellion on the kingdom. raleigh--let me answer for myself. attorney--thou shalt not. raleigh--it concerneth my life. lord chief-justice--sir walter raleigh, mr. attorney is but yet in the general: but when the king's council have given the evidence wholly you shall answer every particular. attorney--o! do i touch you? lord cecil--mr. attorney, when you have done with this general charge, do you not mean to let him answer every particular? attorney--yes, when we deliver the proofs to be read. raleigh procured cobham to go to aremberg, which he did by his instigation: raleigh supped with cobham before he went to aremberg; after supper, raleigh conducted him to durham-house, from thence cobham went with lawrency, a servant of aremberg's unto him, and went in by a back way. cobham could never be quiet until he had entertained this motion, for he had four letters from raleigh. aremberg answered, the money should be performed, but knew not to whom it should be distributed. then cobham and lawrency came back to durham-house, where they found raleigh. cobham and raleigh went up and left lawrency below, where they had secret conference in a gallery; and after, cobham and lawrency departed from raleigh. your jargon was peace: what is that? spanish invasion, scottish subversion. and again, you are not a fit man to take so much money for procuring of a lawful peace, for peace procured by money is dishonourable. then cobham must go to spain, and return by jersey, where you were captain: and then, because cobham had not so much policy, or at least wickedness, as you, he must have your advice for the distribution of the money. would you have deposed so good a king, lineally descended of elizabeth, eldest daughter of edward iv.? why then must you set up another? i think you meant to make arabella a titular queen, of whose title i will speak nothing; but sure you meant to make her a stale. ah! good lady, you could mean her no good. raleigh--you tell me news, mr. attorney. attorney--oh sir! i am the more large, because i know with whom i deal: for we have to deal to-day with a man of wit. raleigh--did i ever speak with this lady? attorney--i will track you out before i have done. englishmen will not be led by persuasion of words, but they must have books to persuade. raleigh--the book was written by a man of your profession, mr. attorney. attorney--i would not have you so impatient. raleigh--methinks you fall out with yourself; i say nothing. attorney--by this book you will persuade men, that he is not the lawful king. now let us consider some circumstances: my lords, you will know my lord cobham (for whom we all lament and rejoice; lament in that his house, which hath stood so long unspotted, is now ruinated: rejoice, in that his treasons are revealed): he is neither politician nor swordman; raleigh was both, united in the cause with him and therefore cause of his destruction. another circumstance is, the secret contriving of it. humphry stafford claimed sanctuary for treason: raleigh, in his machiavelian policy hath made a sanctuary for treason: he must talk with none but cobham; because, saith he, one witness can never condemn me. for brook said unto sir griffith markham, 'take heed how you do make my lord cobham acquainted; for whatsoever he knoweth, raleigh the witch will get it out of him.' as soon as raleigh was examined on one point of treason concerning my lord cobham he wrote to him thus: 'i have been examined of you, and confessed nothing.' further, you sent to him by your trusty francis kemish,[ ] that one witness could not condemn; and therefore bade his lordship be of good courage. came this out of cobham's quiver? no: but out of raleigh's machiavelian and devilish policy. yea, for cobham did retract it; why then did ye urge it? now then see the most horrible practices that ever came out of the bottomless pit of the lowest hell. after that raleigh had intelligence that cobham had accused him, he endeavoured to have intelligence from cobham which he had gotten by young sir john payton: but i think it was the error of his youth. raleigh--the lords told it me, or else i had been sent to the tower. attorney--thus cobham, by the instigation of raleigh, entered into these actions: so that the question will be, whether you are not the principal traitor and he would nevertheless have entered into it? why did cobham retract all the same? first, because raleigh was so odious, he thought he should fare the worse for his sake; secondly, he thought thus with himself, if he be free i shall clear myself the better. after this, cobham asked for a preacher to confer with, pretending to have dr. andrews;[ ] but indeed he meant not to have him but mr. galloway,[ ] a worthy and reverent preacher, who can do more with the king (as he said) than any other; that he seeing his constant denial, might inform the king thereof. here he plays with the preacher. if raleigh could persuade the lords that cobham had no intent to travel, then he thought all should be well. here is forgery! in the tower, cobham must write to sir thos. vane, a worthy man, that he meant not to go to spain: which letter raleigh devised in cobham's name. raleigh--i will wash my hands of the indictment, and die a true man to the king. attorney--you are the absolutist traitor that ever was. raleigh--your phrases will not prove it. attorney--cobham writeth a letter to my lord cecil, and doth with mellis's man to lay it in a spanish bible and to make as though he found it by chance. this was after he had intelligence with this viper, that he was false. lord cecil--you mean a letter intended to me; i never had it. attorney--no, my lord, you had it not. you, my masters of the jury, respect not the wickedness and hatred of the man, respect his cause: if he be guilty, i know you will have care of it, for the preservation of the king, the continuance of the gospel authorized, and the good of us all. raleigh--i do not hear yet, that you have spoken one word against me; here is no treason of mine done: if my lord cobham be a traitor, what is that to me? attorney--all that he did was by thy instigation, thou viper; for i 'thou' thee, thou traitor. raleigh--it becometh not a man of quality and virtue to call me so: but i take comfort in it, it is all you can do. attorney--have i angered you? raleigh--i am in no case to be angry. chief-justice popham--sir walter raleigh, mr. attorney speaketh out of the zeal of his duty, for the service of the king, and you for your life; be valiant on both sides. _the lord cobham's examination._[ ] 'he confesseth, he had a passport to go into spain, intending to go to the archduke, to confer with him about these practices; and because he knew the archduke had not money to pay his own army, from thence he meant to go to spain to deal with the king for the , crowns, and to return by jersey; and that nothing should be done, until he had spoken with sir walter raleigh for distribution of the money to them which were discontented in england. at the first beginning, he breathed out oaths and exclamations against raleigh, calling him villain and traitor; saying he had never entered into these courses but by his instigation, and that he would never let him alone.' (here mr. attorney willed the clerk of the crown office to read over these last words again, 'he would never let him alone.') 'besides he spake of plots and invasions; of the particulars whereof he could give no account, though raleigh and he had conferred of them. further he said, he was afraid of raleigh, that when he should return by jersey, that he would have delivered him and the money to the king.' 'being examined of sir a. gorge he freed him, saying, they never durst trust him: but sir arthur savage they intended to use, because they thought him a fit man.' raleigh--let me see the accusation: this is absolutely all the evidence that can be brought against me; poor shifts! you gentlemen of the jury, i pray you understand this. this is that which must either condemn, or give me life; which must free me, or send my wife and children to beg their bread about the streets. this is that which must prove me a notorious traitor, or a true subject to the king. let me see my accusation, that i may make my answer. clerk of the council--i did read it, and shew you all the examinations. raleigh--at my first examination at windsor, my lords asked me what i knew of cobham's practice with aremberg; i answered negatively: and as concerning arabella i protest before god i never heard one word of it. if that be proved, let me be guilty of , treasons. it is a strange thing you will impute that to me, when i never so much as heard the name of arabella stuart, but only the name of arabella. after being examined, i told my lords, that i thought my lord cobham had conference with aremberg; i suspected his visiting of him; for after he departed from me at durham-house i saw him pass by his own stairs, and passed over to st. mary saviours, where i knew lawrency, a merchant, and a follower of aremberg, lay, and therefore likely to go unto him. my lord cecil asked my opinion concerning lawrency; i said that if you do not apprehend lawrency, it is dangerous, he will fly; if you do apprehend him, you shall give my lord cobham notice thereof. i was asked who was the greatest man with my lord cobham; i answered, i knew no man so great with him as young wyat of kent. as soon as cobham saw my letter to have discovered his dealing with aremberg in his fury he accused me; but before he came to the stair-foot, he repented, and said he had done me wrong. when he came to the end of his accusation he added, that if he had brought this money to jersey, he feared that i would have delivered him and the money to the king. mr. attorney, you said this never came out of cobham's quiver; he is a simple man. is he so simple? no: he hath a disposition of his own, he will not easily be guided by others; but when he has once taken head in a matter, he is not easily drawn from it: he is no babe. he then goes on to point out the inherent improbabilities of cobham's story; he himself had no means for persuading the king of spain to disburse money, having lost his wardenship of the stannaries; he knew england to be stronger and spain to be weaker than they had been; the spanish fleet had been ruined, and the trade with the indies had fallen off. cobham had no money of his own. when raleigh was examined, he had £ , worth of cobham's jewels which he had bought of him. 'if he had had a fancy to run away he would not have left so much as to have purchased a lease in fee-farm. i saw him buy £ worth of books to send to his library at canterbury, and a cabinet of £ to give to mr. attorney for drawing the conveyances; and god in heaven knoweth, not i, whether he intended to travel or not. but for that practice with arabella, or letters to aremberg framed, or any discourse with him, or in what language he spake unto him; if i knew any of these things, i would absolutely confess the indictment, and acknowledge myself worthy of ten thousand deaths.' _cobham's second examination read._ the lord cobham being required to subscribe to an examination, there was shewed a note under sir walter raleigh's hand; the which when he had perused, he paused, and after brake forth into those speeches: oh villain! oh traitor! i will now tell you all the truth; and then he said, his purpose was to go into flanders, and into spain, for the obtaining the aforesaid money; and that raleigh had appointed to meet him in jersey as he returned home, to be advised of him about the distribution of the money. lord chief-justice popham--when cobham answered to the interrogatories, he made scruple to subscribe, and being urged to it, he said, if he might hear me affirm, that if a person of his degree ought to set his hand he would: i lying then at richmond for fear of the plague was sent for, and i told he ought to subscribe; otherwise it were a contempt of a high nature: then he subscribed. the lords questioned with him further, and he shewed them a letter, as i thought written to me, but it was indeed written to my lord cecil; he desired to see the letter again, and then said, 'oh wretch! oh traitor!' whereby i perceived you had not performed that trust he had reposed in you. raleigh--he is as passionate a man as lives; for he hath not spared the best friends he hath in england in his passion. my lords, i take it, he that has been examined, has ever been asked at the time of his examination, if it be according to his meaning, and then to subscribe. methinks, my lords, when he accuses a man, he should give some account and reason of it: it is not sufficient to say we talked of it. if i had been the plotter, would not i have given cobham some arguments, whereby to persuade the king of spain, and answer his objections? i knew westmoreland and bothwell, men of other understandings than cobham, were ready to beg their bread. sir thos. fowler (one of the jury)--did sir walter raleigh write a letter to my lord before he was examined concerning him or not? attorney--yes. lord cecil--i am in great dispute with myself to speak in the case of this gentleman; a former dearness between me and him tyed so firm a knot of my conceit of his virtues, now broken by a discovery of his imperfections. i protest, did i serve a king that i knew would be displeased with me for speaking, in this case i would speak, whatever came of it; but seeing he is compacted of piety and justice, and one that will not mislike of any man for speaking the truth, i will answer your question. sir walter raleigh was staid by me at windsor, upon the first news of copley, that the king's person should be surprized by my lord grey, and mr. geo. brook; when i found brook was in, i suspected cobham, then i doubted raleigh to be a partaker. i speak not this, that it should be thought i had greater judgment than the rest of my lords in making this haste to have them examined. raleigh following to windsor, i met with him upon the terrace and willed him, as from the king, to stay; saying the lords had something to say to him; then he was examined, but not concerning my lord cobham but of the surprizing treason. my lord grey was apprehended, likewise brook; by brook, we found that he had given notice to cobham of the surprizing treason, as he delivered it to us; but with as much sparingness of a brother as he might. we sent for my lord cobham to richmond, where he stood upon his justification and his quality; sometimes being froward; he said he was not bound to subscribe, wherewith we made the king acquainted. cobham said, if my lord chief-justice would say it was a contempt, he would subscribe; whereof being resolved, he subscribed. there was a light given to aremberg, that lawrency was examined; but that raleigh knew that cobham was examined is more than i know. raleigh--if my lord cobham had trusted me in the main, was not i as fit a man to be trusted in the bye? lord cecil--raleigh did by his letters acquaint us that my lord cobham had sent lawrency to aremberg, when he knew not he had any dealings with him. lord h. howard--it made for you if lawrency had been only acquainted with cobham, and not with you. but you knew his whole estate, and were acquainted with cobham's practice with lawrency: and it was known to you before that lawrency depended upon aremberg. attorney-- . raleigh protested against the surprizing treason. . that he knew not of the matter touching arabella. i would not charge you, sir walter, with the matter of falsehood: you say you suspected the intelligence that cobham had with aremberg by lawrency. raleigh--i thought it had been no other intelligence, but such as might be warranted. attorney--then it was but lawful suspicion. but to that whereas you said, that cobham had accused you in passion, i answer three ways. . i observed, when cobham said let me see the letter again, he paused; and when he did see that count aremberg was touched, he cried out, oh traitor! oh villain! now will i confess the whole truth. . the accusation of a man on hearsay is nothing: would he accuse himself on passion and ruinate his case and posterity out of malice to accuse you? . could this be out of passion? mark the manner of it; cobham had told this at least two months before to his brother brook, 'you are fools, you are on the bye, raleigh and i are on the main, we mean to take away the king and his cubs.' this he delivered two months before. so mark the manner and the matter; he would not turn the weapon against his own bosom, and accuse himself to accuse you. raleigh--hath cobham confessed that? lord chief-justice--this is spoken by mr. attorney to prove that cobham's speech came not out of passion. raleigh--let it be proved that cobham said so. attorney--cobham saith that he was a long time doubtful of raleigh that he would send him and the money to the king. did cobham fear lest you would betray him in jersey? then of necessity there must be trust between you. no man can betray a man but he that is trusted, in my understanding. that is the greatest argument to prove that he was acquainted with cobham's proceedings. raleigh has a deeper reach, than to make himself as he said, 'robin hood, a kett, or cade'; yet i never heard that robin hood was a traitor; they say he was an outlaw. and whereas he saith that our king is not only more wealthy and potent than his predecessors, but also more politic and wise, so that he could have no hope to prevail; i answer, there is no king so potent, wise, and active, but he may be overtaken through treason. whereas you say spain is so poor, discoursing so largely thereof; it had been better for you to have kept in guiana, than to have been so well acquainted with the state of spain. besides, if you could have brought spain and scotland to have joined, you might have hoped to prevail a great deal the better. for his six overthrows, i answer, he hath the more malice, because repulses breed desire of revenge. then you say you never talked with cobham, but about leases, and letting lands, and ordering his house; i never knew you clerk of the kitchen, etc. if you had fallen on your knees at first and confessed the treason, it had been better for you. you say, he meant to have given me a cabinet of £ ; perhaps he thought by those means to have anticipated me therewith. but you say all these are circumstances: i answer, all this accusation in circumstance is true. here now i might appeal to my lords, that you take hold of this, that he subscribed not to the accusation. lord henry howard--cobham was not then pressed to subscribe. attorney--his accusation being testified by the lords, is of as great force as if he had subscribed. raleigh saith again, if the accuser be alive he must be brought face to face to speak; and alledges edw. rd, that there must be two sufficient witnesses, that must be brought face to face before the accused; and alledgeth and elizabeth. raleigh--you try me by the spanish inquisition, if you proceed only by the circumstances, without two witnesses. attorney--this is a treasonable speech. raleigh--_evertere hominem justum in causa sua injustum est._ good my lords, let it be proved, either by the laws of the land, or the laws of god, that there ought not to be two witnesses appointed; yet i will not stand to defend this point in law, if the king will have it so: it is no rare thing for a man to be falsely accused. a judge condemned a woman in sarum for killing her husband, on the testimony of one witness; afterwards his man confessed the murder, when she was executed; who after being touched in conscience for the judgment was used to say: _quod nunquam de hoc facto animam in vita sua purgaret_. it is also commanded by the scripture; _allocutus est jehova mosen, in ore duorum aut trium testium_, etc. if christ requireth it, as it appeareth matt. xviii.; if by the canon, civil law, and god's word, it be required, that there must be two witnesses at the least, bear with me if i desire one. i would not desire to live, if i were privy to cobham's proceedings. i have been a slave, a villain, a fool, if i had endeavoured to set up arabella, and refused so gracious a lord and sovereign. but urge your proofs. lord chief-justice--you have offered questions on diverse statutes, all which mention two accusers in case of indictments: you have deceived yourself, for the laws of edw. rd and edw. th are repealed. it sufficeth now if there be proofs made either under hand, or by testimony of witnesses, or by oaths; it needs not the subscription of the party, so there be hands of credible men to testify the examination. raleigh--it may be an error in me; and if those laws be repealed, yet i hope the equity of them remains still; but if you affirm it, it must be a law to posterity. the proof of the common law is by witness and jury: let cobham be here, let him speak it. call my accuser before my face, and i have done. attorney--_scientia sceleris est mera ignorantia._ you have read the letter of the law, but understand it not. here was your anchor-hold, and your rendezvous: you trust to cobham, either cobham must accuse you, or nobody; if he did, then it would not hurt you, because he is but one witness; if he did not, then you are safe. raleigh--if ever i read a word of the law or statutes before i was prisoner in the tower, god confound me. the attorney-general then points out that cobham confessed that he had a passport to travel, by means of which he intended to go to the archduke, and then to the king of spain to raise money, after which raleigh confessed that he was to have joined him in jersey on his way home. cobham had further stated that nothing could be settled as to the distribution of the money they were to receive without raleigh's concurrence. in reply, raleigh pointed out that all this depended on cobham's accusation, which he had never signed or vouched. 'i beseech you, my lords, let cobham be sent for, charge him on his soul, on his allegiance to the king; if he affirm it, i am guilty.' lord cecil--it is the accusation of my lord cobham, it is the evidence against you: must it not be of force without his subscription? i desire to be resolved by the judges whether by the law it is not a forcible argument of evidence. judges--my lord, it is. raleigh--the king at his coronation is sworn _in omnibus judiciis suis æquitatem, non rigorem legis, observare_. by the rigour and cruelty of the law it may be a forcible evidence. lord chief-justice--that is not the rigour of the law, but the justice of the law; else when a man hath made a plain accusation, by practice he might be brought to retract it again. raleigh--oh my lord, you may use equity. lord chief-justice--that is from the king; you are to have justice from us. lord anderson--the law is, if the matter be proved to the jury, they must find you guilty; for cobham's accusation is not only against you, there are other things sufficient. lord cecil--now that sir walter raleigh is satisfied, that cobham's subscription is not necessary, i pray you, mr. attorney, go on. raleigh--good mr. attorney, be patient, and give me leave. lord cecil--an unnecessary patience is a hindrance; let him go on with his proofs, and then repel them. raleigh--i would answer particularly. lord cecil--if you would have a table and pen and ink, you shall. then paper and ink was given him. here the clerk of the crown read the letter, which the lord cobham did write in july, which was to the effect of his former examination; further saying, 'i have disclosed all: to accuse any one falsely, were to burden my own conscience.' attorney--read copley's confession the th of june; he saith, he was offered crowns to be in this action. here watson's additions were read. 'the great mass of money from the count was impossible,' etc. brook's confession read. 'there have letters passed,' saith he, 'between cobham and aremberg, for a great sum of money to assist a second action, for the surprizing of his majesty.' attorney--it is not possible it was of passion: for it was in talk before three men, being severally examined, who agreed in the sum to be bestowed on discontented persons; that grey should have , crowns, and raleigh should have , , or , crowns. _cobham's examination, july ._ if the money might be procured (saith he) then a man may give pensions. being asked if a pension should not be given to his brother brook, he denied it not. _lawrency's examination._ within five days after aremberg arrived, cobham resorted unto him. that night that cobham went to aremberg with lawrency, raleigh supped with him. attorney--raleigh must have his part of the money, therefore he is now a traitor. the crown shall never stand one year on the head of the king (my master) if a traitor may not be condemned by circumstances: for if a tells b and b tells c and c d, etc., you shall never prove treason by two witnesses. _raleigh's examination was read._ he confesseth cobham offered him , crowns, which he was to have for the furtherance of the peace between england and spain, and that he should have it within three days. to which he said, he gave this answer; when i see the money, i will tell you more: for i had thought it had been one of his ordinary idle conceits, and therefore made no account thereof. raleigh--the attorney hath made a long narration of copley, and the priests, which concerns me nothing, neither know i how cobham was altered. for he told me if i would agree to further the peace, he would get me , crowns. i asked him, who shall have the rest of the money? he said, i will offer such a nobleman (who was not named) some of the money. i said, he will not be persuaded by you, and he will extremely hate you for such a motion. let me be pinched to death with hot irons, if ever i knew there was any intention to bestow the money on discontented persons. i had made a discourse against the peace, and would have printed it; if cobham changed his mind, if the priests, if brook had any such intent, what is that to me? they must answer for it. he offered me the money before aremberg came, that is difference of time. serj. philips--raleigh confesseth the matter, but avoideth it by distinguishing of times. you said, it was offered you before the coming of aremberg, which is false. for you being examined whether you should have such money of cobham, or not, you said, yea, and that you should have it within two or three days. _nemo moriturus præsumitur mentiri._ lord henry howard--alledge me any ground or cause, wherefore you gave ear to my lord cobham for receiving pensions, in matters you had not to deal with. raleigh--could i stop my lord cobham's mouth? lord cecil--sir walter raleigh presseth, that my lord cobham should be brought face to face. if he asks things of favour and grace, they must come only from him that can give them. if we sit here as commissioners, how shall we be satisfied whether he ought to be brought, unless we hear the judges speak? lord chief-justice--this thing cannot be granted, for then a number of treasons should flourish: the accuser may be drawn by practice whilst he is in person. justice gawdy--the statute you speak of concerning two witnesses in case of treason, is found to be inconvenient, therefore by another law it was taken away. raleigh--the common trial of england is by jury and witnesses. lord chief-justice--no, by examination: if three conspire a treason, and they all confess it; here is never a witness, yet they are condemned.[ ] justice warburton--i marvel, sir walter, that you, being of such experience and wit, should stand on this point; for so many horse-stealers may escape, if they may not be condemned without witnesses. if one should rush into the king's privy chamber, whilst he is alone, and kill the king (which god forbid), and this man be met coming with his sword all bloody; shall not he be condemned to death? my lord cobham hath, perhaps, been laboured withal; and to save you, his old friend, it may be that he will deny all that which he hath said. raleigh--i know not how you conceive the law. lord chief-justice--nay, we do not conceive the law, but we know the law. raleigh--the wisdom of the law of god is absolute and perfect: _hæc fac et vives_, etc. but now by the wisdom of the state, the wisdom of the law is uncertain. indeed, where the accuser is not to be had conveniently, i agree with you; but here my accuser may; he is alive, and in the house. susanna had been condemned, if daniel had not cried out, 'will you condemn an innocent israelite, without examination or knowledge of the truth?' remember it is absolutely the commandment of god: if a false witness rise up you shall cause him to be brought before the judges; if he be found false, he shall have the punishment which the accused should have had. it is very sure for my lord to accuse me is my certain danger, and it may be a means to excuse himself. lord chief-justice--there must not such a gap be opened for the destruction of the king, as would be if we should grant this. you plead hard for yourself, but the laws plead as hard for the king. i did never hear that course to be taken in a case of treason, as to write one to another, or speak one to another, during the time of their imprisonment. there hath been intelligence between you; and what under-hand practices there may be, i know not. if the circumstances agree not with the evidence, we will not condemn you. raleigh--the king desires nothing but the knowledge of the truth, and would have no advantage taken by severity of the law. if ever we had a gracious king, now we have; i hope, as he is, such are his ministers. if there be but a trial of five marks at common law, a witness must be deposed. good my lords, let my accuser come face to face, and be deposed. lord chief-justice--you have no law for it: god forbid any man should accuse himself upon his oath! attorney--the law presumes, a man will not accuse himself to accuse another. you are an odious man, for cobham thinks his cause the worse that you are in it. now you shall hear of some stirs to be raised in scotland. _part of copley's examination._ 'also watson told me, that a special person told him, that aremberg offered to him crowns to be in that action; and that brook said, the stirs in scotland came out of raleigh's head.' raleigh--brook hath been taught his lesson. lord henry howard--this examination was taken before. did i teach him his lesson? raleigh--i protest before god, i meant it not by any privy-counsellor; but because money is scant, he will juggle on both sides. _raleigh's examination._ 'the way to invade england, were to begin with stirs in scotland.' raleigh--i think so still: i have spoken it to divers of the lords of the council, by way of discourse and opinion. attorney--now let us come to those words, 'of destroying the king and his cubs.' raleigh--o barbarous! if they, like unnatural villains, should use those words, shall i be charged with them? i will not hear it; i was never any plotter with them against my country, i was never false to the crown of england. i have spent pounds of my own against the spanish faction, for the good of my country. do you bring the words of these hellish spiders, clark, watson, and others against me? attorney--thou hast a spanish heart, and thyself art a spider of hell; for thou confesseth the king to be a most sweet and gracious prince, and yet hast conspired against him. _watson's examination read._ 'he said, that george brook told him twice, that his brother, the lord cobham, said to him, that you are but on the bye, but raleigh and i are on the main.' _brook's examination read._ 'being asked what was meant by this jargon, the bye and the main? he said, that the lord cobham told him, that grey and others were in the bye, he and raleigh were on the main. being asked, what exposition his brother made of these words? he said, he is loath to repeat it. and after saith, by the main was meant the taking away of the king and his issue; and thinks on his conscience, it was infused into his brother's head by raleigh.' _cobham's examination read._ 'being asked, if ever he had said, "it will never be well in england, till the king and his cubs were taken away"; he said, he had answered before, and that he would answer no more to that point.' raleigh--i am not named in all this: there is a law of two sorts of accusers; one of his own knowledge, another by hear-say. earl of suffolk--see the case of arnold. lord chief-justice--it is the case of sir will. thomas, and sir nicholas arnold. raleigh--if this may be, you will have any man's life in a week. attorney--raleigh saith, that cobham was in a passion when he said so. would he tell his brother anything of malice against raleigh, whom he loved as his life? raleigh--brook never loved me; until his brother had accused me, he said nothing. lord cecil--we have heard nothing that might lead us to think that brook accused you, he was only in the surprizing treason: for by accusing you he should accuse his brother. raleigh--he doth not much care for that. lord cecil--i must judge the best. the accusation of his brother was not voluntary; he pared everything as much as he could to save his brother. _cobham's examination read._ 'he saith he had a book written against the title of the king, which he had of raleigh, and that he gave it to his brother brook: and raleigh said it was foolishly written.' attorney--after the king came within miles of london, cobham never came to see him; and intended to travel without seeing the queen and the prince. now in this discontentment you gave him the book, and he gave it his brother. raleigh--i never gave it him, he took it off my table. for i well remember a little before that time i received a challenge from sir amias preston,[ ] and for that i did intend to answer it, i resolved to leave my estate settled, therefore i laid out all my loose papers, amongst which was this book. lord howard--where had you this book? raleigh--in the old lord treasurer's study, after his death. lord cecil--did you ever shew or make known this book to me? raleigh--no, my lord. lord cecil--was it one of the books which was left to me or my brother? raleigh--i took it out of the study in my lord treasurer's house in the strand. lord cecil--after my father's decease, sir walter raleigh desired to search for some cosmographical descriptions of the indies, which he thought were in his study, and were not to be had in print; which i granted, and would have trusted sir walter raleigh as soon as any man: though since for some infirmities, the bands of my affection to him have been broken; and yet reserving my duty to the king my master, which i can by no means dispense with, by god, i love him, and have a great conflict within myself: but i must needs say, sir walter used me a little unkindly to take the book away without my knowledge: nevertheless, i need make no apology in behalf of my father, considering how useful and necessary it is for privy-counsellors and those in his place to intercept and keep such kind of writings; for whosoever should then search his study may in all likelihood find all the notorious libels that were writ against the late queen; and whosoever should rummage my study, or at least my cabinet, may find several against the king, our sovereign lord, since his accession to the throne. raleigh--the book was in manuscript, and the late lord treasurer had wrote in the beginning of it with his own hand, these words, 'this is the book of robert snagg.' and i do own, as my lord cecil has said, that i believe they may also find in my house almost all the libels that have been writ against the late queen. attorney--you were no privy-counsellor, and i hope never shall be. lord cecil--he was not a sworn counsellor of state, but he has been called to consultations. raleigh--i think it a very severe interpretation of the law, to bring me within compass of treason for this book, writ so long ago, of which nobody had read any more than the heads of the chapters, and which was burnt by g. brook without my privity; admitting i had delivered the same to my lord cobham, without allowing or approving, but discommending it, according to cobham's first accusation: and put the case, i should come to my lord cecil, as i have often done, and find a stranger with him, with a packet of libels, and my lord should let me have one or two of them to peruse: this i hope is no treason. attorney--i observe there was intelligence between you and cobham in the tower; for after he said it was against the king's title, he denied it again. sir w. wade--first my lord cobham confesseth it, and after he had subscribed it, he revoked it again: to me he always said, that the drift of it was against the king's title. raleigh--i protest before god, and all his works, i gave him not the book. (_note._--sir robert wroth speaketh, or whispereth something secretly.) attorney--my lords, i must complain of sir robert wroth; he says this evidence is not material. sir r. wroth--i never spake the words. attorney--let mr. serjeant philips testify whether he heard him say the word or no. lord cecil--i will give my word for sir r. wroth. sir r. wroth--i will speak as truly as you, mr. attorney, for my god, i never spake it. lord chief-justice--wherefore should this book be burnt? raleigh--i burned it not. serjeant philips--you presented your friend with it when he was discontented. if it had been before the queen's death, it had been a less matter; but you gave it him presently when he came from the king, which was the time of his discontentment. raleigh--here is a book supposed to be treasonable; i never read it, commended it, or delivered it, nor urged it. attorney--why, this is cunning. raleigh--every thing that doth make for me is cunning, and every thing that maketh against me is probable. attorney--lord cobham saith, that kemish came to him with a letter torn, and did wish him not to be dismayed, for one witness could not hurt him. raleigh--this poor man hath been close prisoner these weeks; he was offered the rack to make him confess. i never sent any such message by him; i only writ to him, to tell him what i had done with mr. attorney; having of his at that time a great pearl and a diamond. lord h. howard--no circumstance moveth me more than this. kemish was never on the rack, the king gave charge that no rigour should be used. commissioners--we protest before god, there was no such matter intended to our knowledge. raleigh--was not the keeper of the rack sent for, and he threatened with it? sir w. wade--when mr. solicitor and myself examined kemish, we told him he deserved the rack, but did not threaten him with it. commissioners--it was more than we knew. _cobham's examination read._ he saith, kemish brought him a letter from raleigh, and that part which was concerning the lords of the council was rent out; the letter contained that he was examined, and cleared himself of all; and that the lord h. howard said, because he was discontent, he was fit to be in the action. and further, that kemish said to him from raleigh that he should be of good comfort, for one witness could not condemn a man for treason. lord cecil--cobham was asked whether, and when, he heard from you? he said, every day. raleigh--kemish added more, i never bade him speak those words. (_note._--mr. attorney here offered to interrupt him.) lord cecil--it is his last discourse; give him leave mr. attorney. raleigh--i am accused concerning arabella, concerning money out of spain. my lord chief-justice saith, a man may be condemned with one witness, yea, without any witness. cobham is guilty of many things, _conscientia mille testes_; he hath accused himself, what can he hope for but mercy? my lords, vouchsafe me this grace: let him be brought, being alive, and in the house; let him avouch any of these things, i will confess the whole indictment and renounce the king's mercy. lord cecil--here hath been a touch of the lady arabella stuart, a near kinswoman of the king's. let us not scandal the innocent by confusion of speech: she is as innocent of all these things as i, or any man here; only she received a letter from my lord cobham, to prepare her; which she laughed at, and immediately sent it to the king. so far was she from discontentment, that she laughed him to scorn. but you see how far the count of aremberg did consent. _the lord admiral (nottingham) being by in a standing, with the lady arabella, spake to the court_: the lady doth here protest upon her salvation, that she never dealt in any of these things, and so she willed me to tell the court. lord cecil--the lord cobham wrote to my lady arabella, to know if he might come to speak with her, and gave her to understand, that there were some about the king that laboured to disgrace her; she doubted it was but a trick. but brook saith his brother moved him to procure arabella to write letters to the king of spain; but he saith, he never did it. raleigh--the lord cobham hath accused me, you see in what manner he hath forsworn it were it not for his accusation, all this were nothing. let him be asked, if i knew of the letter which lawrency brought to him from aremberg. let me speak for my life, it can be no hurt for him to be brought; he dares not accuse me. if you grant me not this favour, i am strangely used; campian[ ] was not denied to have his accusers face to face. lord chief-justice--since he must needs have justice, the acquitting of his old friend may move him to speak otherwise than the truth. raleigh--if i had been the infuser of all these treasons into him; you gentlemen of the jury, mark this, he said i have been the cause of all his miseries, and the destruction of his house, and that all evil hath happened unto him by my wicked counsel; if this be true, whom hath he cause to accuse and to be revenged on, but on me? and i know him to be as revengeful as any man on earth. attorney--he is a party, and may not come; the law is against it. raleigh--it is a toy to tell me of law; i defy such law, i stand on the fact. lord cecil--i am afraid my often speaking (who am inferior to my lords here present) will make the world think that i delight to hear myself talk. my affection to you, sir walter, was not extinguished, but slaked in regard to your deserts. you know the law of the realm (to which your mind doth not contest) that my lord cobham cannot be brought. raleigh--he may be, my lord. lord cecil--but dare you challenge it? raleigh--no. lord cecil--you say that my lord cobham, your main accuser, must come to accuse you. you say he hath retracted: i say, many particulars are not retracted. what the validity of all this is, is merely left to the jury. let me ask you this, if my lord cobham will say you were the only instigator of him to proceed in the treason, dare you put yourself on this? raleigh--if he will speak it before god and the king, that ever i knew of arabella's matter or the money out of spain, or of the surprizing treason; i put myself on it, god's will and the king's be done with me. lord h. howard--how! if he speak things equivalent to that you have said? raleigh--yes, in the main point. lord cecil--if he say, you have been the instigator of him to deal with the spanish king, had not the council cause to draw you hither? raleigh--i put myself on it. lord cecil--then, sir walter, call upon god and prepare yourself; for i do verily believe that my lords will prove this. excepting your faults (i call them no worse), by god i am your friend. the heat and passion in you, and the attorney's zeal in the king's service, make me speak this. raleigh--whosoever is the workman, it is reason he should give an account of his work to his workmaster. but let it be proved that he acquainted me with any of his conferences with aremberg: he would surely have given me some account. lord cecil--that follows not: if i set you on work, and you give me no account, am i therefore innocent? attorney--for the lady arabella, i said she was never acquainted with the matter. now that raleigh had conference in all these treasons, it is manifest. the jury hath heard the matter. there is one dyer, a pilot, that being in lisbon met with a portugal gentleman, who asked him if the king of england was crowned yet: to whom he answered, 'i think not yet, but he shall be shortly.' nay, saith the portugal, that shall never be, for his throat will be cut by don raleigh and don cobham before he be crowned. _dyer_ was called and sworn, and delivered this evidence. dyer--i came to a merchant's house in lisbon, to see a boy that i had there; there came a gentleman into the house, and enquiring what countryman i was, i said, an englishman. whereupon he asked me, if the king was crowned? and i answered, no, but that i hoped he should be shortly. nay, saith he, he shall never be crowned; for don raleigh and don cobham shall cut his throat ere that day come. raleigh--what infer you upon this? attorney--that your treason hath wings. raleigh--if cobham did practice with aremberg, how could it not but be known in spain? why did they name the duke of buckingham with jack straw's treason, and the duke of york with jack cade, but that it was to countenance his treason? consider, you gentlemen of the jury, there is no cause so doubtful which the king's council cannot make good against the law. consider my disability and their ability; they prove nothing against me, only they bring the accusation of my lord cobham which he hath repented and lamented as heartily, as if it had been for an horrible murder: for he knew that all this sorrow that should come to me, is by his means. presumptions must proceed from precedent or subsequent facts. i have spent , crowns against the spaniards. i had not purchased £ a year. if i had died in guiana, i had not left marks a year to my wife and son. i that have always condemned spanish faction, methinks it is a strange thing that now i should affect it! remember what st. austin says, _sic judicate tanquam ab alio mox judicandi; unus judex, unum tribunal_. if you will be contented on presumptions to be delivered up to be slaughtered, to have your wives and children turned into the streets to beg their bread; if you will be contented to be so judged, judge so of me. serj. philips--i hope to make this so clear, as that the wit of man shall have no colour to answer it. the matter is treason in the highest degree, the end to deprive the king of his crown. the particular treasons are these: first, to raise up rebellion, and to effect that, to procure money; to raise up tumults in scotland, by divulging a treasonable book against the king's right to the crown; the purpose, to take away the life of his majesty and his issue. my lord cobham confesseth sir walter to be guilty of all these treasons. the question is, whether he be guilty as joining with him, or instigating of him? the course to prove this was by my lord cobham's accusation. if that be true, he is guilty, if not he is clear. so whether cobham say true, or raleigh, that is the question. raleigh hath no answer but the shadow of as much wit as the wit of man can devise. he useth his bare denial; the denial of a defendant must not move the jury. in the star chamber, or in the chancery, for matter of title, if the defendant be called in question, his denial on his oath is no evidence to the court to clear him, he doth it _in propria causa_; therefore much less in matters of treason. cobham's testification against him before them, and since, hath been largely discoursed. raleigh--if truth be constant, and constancy be in truth, why hath he forsworn that that he hath said? you have not proved any one thing against me by direct proofs, but all by circumstances. attorney--have you done? the king must have the last. raleigh--nay, mr. attorney, he which speaketh for his life, must speak last. false repetitions and mistakings must not mar my cause. you should speak _secundum allegata et probata_. i appeal to god and the king in this point whether cobham's accusation is sufficient to condemn me. attorney--the king's safety and your clearing cannot agree. i protest before god, i never knew a clearer treason. raleigh--i never had intelligence with cobham since i came to the tower. attorney--go to, i will lay thee upon thy back, for the confidentest traitor that ever came at a bar. why should you take , crowns for a peace? lord cecil--be not so impatient, good mr. attorney. give him leave to speak. attorney--if i may not be patiently heard, you will encourage traitors and discourage us. i am the king's sworn servant, and must speak; if he be guilty, he is a traitor; if not, deliver him. (_note._--here mr. attorney sat down in a chafe and would speak no more until the commissioners urged and intreated him. after much ado, he went on, and made a long repetition of all the evidence for the direction of the jury; and at the repeating of some things, sir walter raleigh interrupted him and said he did him wrong.) attorney--thou art the most vile and execrable traitor that ever lived. raleigh--you speak indiscreetly, barbarously, and uncivilly. attorney--i want words sufficient to express thy viperous treasons. raleigh--i think you want words indeed, for you have spoken one thing half a dozen times. attorney--thou art an odious fellow, thy name is hateful to all the realm of england for thy pride. raleigh--it will go near to prove a measuring cast between you and me, mr. attorney. attorney--well, i will now make it appear to the world that there never lived a viler viper upon the face of the earth than thou.--and there withal he drew a letter out of his pocket saying further--my lords, you shall see this is an agent that hath writ a treatise against the spaniard, and hath ever so detested him; this is he that hath spent so much money against him in service; and yet you shall all see whether his heart be not wholly spanish. the lord cobham, who of his own nature was a good and honourable gentleman, till overtaken by this wretch now finding his conscience heavily burdened with some courses which the subtlety of this traitor had drawn him into, my lords, he could be at no rest with himself, nor quiet in his thoughts, until he was eased of that heavy weight: out of which passion of his mind and discharge of his duty to his prince and his conscience to god, taking it upon his salvation that he wrote nothing but the truth, with his own hands he wrote this letter. now sir, you shall see whether you had intelligence with cobham within four days before he came to the tower. if he be wholly spanish, that desired a pension of £ a year from spain, that spain by him might have intelligence, then raleigh is a traitor: he hath taken an apple and pinned a letter into it and threw it into my lord cobham's window, the contents whereof were this, 'it is doubtful whether we shall be proceeded with or no, perhaps you shall not be tried.' this was to get a retractation. oh! it was adam's apple whereby the devil did deceive him. further he wrote thus, 'do not as my lord of essex did; take heed of a preacher, for by his persuasion he confessed and made himself guilty.'[ ] i doubt not but this day god shall have as great a conquest by this traitor, and the son of god shall be as much glorified as when it was said _vicisti galilæe_; you know my meaning. what though cobham retracted, yet he could not rest or sleep until he had confirmed it again. if this be not enough to prove him a traitor, the king my master shall not live three years to an end. (_note._--here mr. attorney produced the lord cobham's letter, and as he read it, inserted some speeches.) 'i have thought fit to set down this to my lords, wherein i protest on my soul to write nothing but the truth. i am now come near the period of my time, therefore i confess the whole truth before god and his angels. raleigh, four days before i came from the tower, caused an apple' (eve's apple) 'to be thrown in at my chamber window; the effect of it was, to intreat me to right the wrong that i had done him, in saying, "that i should have come home by jersey"; which under my hand to him i have retracted. his first letter i answered not, which was thrown in the same manner; wherein he prayed me to write him a letter, which i did. he sent me word, that the judges met at mr. attorney's house, and that there was good hope the proceedings against us should be stayed: he sent me another time a little tobacco. at aremberg's coming, raleigh was to have procured a pension of £ a year, for which he promised, that no action should be against spain, the low countries, or the indies, but he would give knowledge beforehand. he told me, the states had audience with the king.'--(_attorney._ 'ah! is not this a spanish heart in an english body?') 'he hath been the original cause of my ruin; for i had no dealing with aremberg, but by his instigation. he hath also been the cause of my discontentment; he advised me, not to be overtaken by preachers, as essex was; and that the king would better allow of a constant denial, than to accuse any.' attorney--oh, damnable atheist! he hath learned some text of scripture to serve his own purpose, but falsely alledged. he counsels him not to be counselled by preachers, as essex was: he died the child of god, god honoured him at his death; thou wast by when he died: _et lupus et turpes instant morientibus ursæ_. he died indeed for his offence. the king himself spake these words: 'he that shall say, essex dies not for treason, is punishable.' raleigh--you have heard a strange tale of a strange man. now he thinks, he hath matter enough to destroy me; but the king and all of you shall witness, by our deaths, which of us was the ruin of the other. i bid a poor fellow throw in the letter at his window, written to this purpose; 'you know you have undone me, now write three lines to justify me.' in this i will die, that he hath done me wrong: why did not he acquaint him with my dispositions? lord chief-justice--but what say you now of the letter, and the pension of £ per annum? raleigh--i say, that cobham is a base, dishonourable, poor soul. attorney--is he base? i return it into thy throat on his behalf: but for thee he had been a good subject. lord chief-justice--i perceive you are not so clear a man, as you have protested all this while; for you should have discovered these matters to the king. (_note._--here raleigh pulled a letter out of his pocket, which the lord cobham had written to him, and desired my lord cecil to read it, because he only knew his hand; the effect of it was as follows:) _cobham's letter of justification to raleigh._ 'seeing myself so near my end, for the discharge of my own conscience, and freeing myself from your blood, which else will cry vengeance against me; i protest upon my salvation i never practised with spain by your procurement; god so comfort me in this my affliction, as you are a true subject, for any thing that i know. i will say as daniel, _purus sum a sanguine hujus_. god have mercy upon my soul, as i know no treason by you.' raleigh--now i wonder how many souls this man hath. he damns one in this letter and another in that. (here was much ado: mr. attorney alledged, that his last letter was politicly and cunningly urged from the lord cobham, and that the first was simply the truth; and lest it should seem doubtful that the first letter was drawn from my lord cobham by promise of mercy, or hope of favour, the lord chief-justice willed that the jury might herein be satisfied. whereupon the earl of devonshire delivered that the same was mere voluntary, and not extracted from the lord cobham upon any hopes or promise of pardon.) this concluded the evidence, and the jury having retired for less than a quarter of an hour, they returned, and brought in a verdict of guilty. when asked whether he had anything to say why judgment should not be passed upon him, raleigh said that he had never practised with spain, that he never knew that cobham meant to get there ('i will ask no mercy at the king's hands, if he will affirm it'), that he never knew of the practice with lady arabella, that he knew nothing of cobham's practice with aremberg, nor of the surprising treason. the lord chief-justice replied that he was persuaded that cobham had accused him truly, and reminded him that he had been offered a pension to act as a spy for spain. raleigh answered that he submitted himself, and his 'son of tender years, unbrought up,' to the king's mercy. lord chief-justice--i thought i should never have seen this day, to have stood in this place to give sentence of death against you; because i thought it impossible, that one of so great parts should have fallen so grievously. god hath bestowed on you many benefits. you had been a man fit and able to have served the king in good place. you had brought yourself into a good state of living; if you had entered into a good consideration of your estate and not allowed your own wit to have intrapped yourself, you might have lived in good comfort. it is best for man not to seek to climb too high, lest he fall: nor yet to creep too low, lest he be trodden on. it was the poesy of the wisest and greatest counsellor of our time in england, _in media spatio mediocria firma locantur_. you might have lived well with £ a year, for so have i heard your revenues to be. i know nothing might move you to be discontented: but if you had been down, you know fortune's wheel, when it is turned down, riseth again. i never heard that the king took away anything from you but the captainship of the guard, which he did with very good reason, to have one of his own knowledge, whom he might trust, in that place. you have been taken for a wise man, and so have shewed wit enough this day. again for monopolies for wine, etc., if the king had said, it is a matter that offends my people, should i burden them for your private good? i think you could not well take it hardly, that his subjects were eased, though by your private hindrance. two vices have lodged chiefly in you; one is an eager ambition, the other corrupt covetousness. ambition, in desiring to be advanced to equal grace and favour, as you have been beforetime; that grace you had then, you got not in a day or year. for your covetousness, i am sorry to hear that a gentleman of your wealth should become a base spy for the enemy, which is the vilest of all other; wherein on my conscience, cobham hath said true: by it you would have increased your living £ a year. this covetousness is like canker, that eats the iron place where it lives. your case being thus, let it not grieve you if i speak a little out of zeal, and love to your good. you have been taxed by the world, with the defence of the most heathenish and blasphemous opinions, which i list not to repeat, because christian ears cannot endure to hear them, nor the authors and maintainers of them be suffered to live in any christian commonwealth. you know what men said of harpool. you shall do well, before you go out of the world, to give satisfaction therein, and not die with these imputations on you. let not any devil persuade you to think there is no eternity in heaven: for if you think thus, you shall find eternity in hell-fire. in the first accusation of my lord cobham, i observed his manner of speaking; i protest before the living god, i am persuaded he spoke nothing but the truth. you wrote, that he should not in any case confess any thing to a preacher, telling him an example of my lord of essex, that noble earl that is gone; who, if he had not been carried away with others, had lived in honour to this day among us: he confessed his offences, and obtained mercy of the lord; for i am verily persuaded in my heart, he died a worthy servant of god. your conceit of not confessing anything is very inhuman and wicked. in this world is the time for confessing, that we may be absolved in the day of judgment. you have shewed a fearful sign of denying god, in advising a man not to confess the truth. it now comes to my mind, why you may not have your accuser come face to face: for such an one is easily brought to retract, when he seeth there is no hope of his own life. it is dangerous that any traitors should have access to, or conference with one another; when they see themselves must die, they will think it best to have their fellow live, that he may commit the like treason again, and so in some sort seek revenge.--now it resteth to pronounce the judgment, which i wish you had not been this day to have received of me: for if the fear of god in you had been answerable to your other great parts, you might have lived to have been a singular good subject. i never saw the like trial, and hope i shall never see the like again. _the judgment._ but since you have been found guilty of these horrible treasons, the judgment of this court is, that you shall be had from hence to the place whence you came, there to remain until the day of execution; and from thence you shall be drawn upon a hurdle through the open streets to the place of execution, there to be hanged and cut down alive, and your body shall be opened, your heart and bowels plucked out, and your privy members cut off, and thrown into the fire before your eyes; then your head to be stricken off from your body, and your body shall be divided into four quarters, to be disposed of at the king's pleasure: and god have mercy upon your soul. the execution of sentence on raleigh was deferred, and he was committed to the tower, where he remained as a state prisoner for the next thirteen years, engaged in philosophic and scientific pursuits and the education of prince henry, the then prince of wales. all this time, however, he remained a person of considerable political importance, owing to the assistance which the opponents of the proposed marriage between prince charles and the spanish infanta hoped to derive from his general popularity, and his reputation as the leading representative of english hatred of spain. at last, in , he was released from custody, though he was still technically a condemned man, and allowed to prepare his expedition in search of the gold-mine which he believed to exist in guiana, on the banks of the orinoco. the expedition was in fact promoted by winwood, then secretary, and villiers, who was at the moment in the hands of the enemies of somerset and the spanish faction, and was always intended by them as an act of hostility to spain. how far raleigh entered into it in the spirit in which he represented it to the king, may be judged of from the fact that he was ready at one time to direct it against the spaniards in genoa, as a relief to the duke of savoy, with whom they were then at war, and at another against the french, to support a rebellion against the queen-mother, then in power. he had also entered into negotiations with the french court to bring his ships back to france rather than england when its end was accomplished. what raleigh's actual intentions were when he started, it is impossible to say. but they were all frustrated when a force which he sent up the orinoco was disastrously defeated in january , in an attack on a spanish settlement, which was unexpectedly discovered between the sea and the supposed situation of the mine. raleigh returned a ruined man. he wished himself to go to france, but his crew forced him to promise to obtain their pardon from the king before he brought his ship into port. in the end, after having touched at kinsale, he persuaded his men to sail for plymouth. on landing he set out for london, but on the way met his cousin, sir lewis stukely, vice-admiral of devon, charged with orders to arrest him. returning to plymouth, he found means to put himself into communication with the captain of a french ship, lying in the sound. preparations were made for his escape in her, but raleigh changed his mind when he was actually in a boat on his way to board her, and returned to land. soon after orders came that he should be brought up to london; but he managed to procure a little more time by feigning illness at salisbury. here he attempted to bribe stukely to allow him to escape; but this proving in vain, he sent king, one of his captains, to hire a vessel at gravesend to await him till he could go on board. the master, however, communicated the plan to a captain of one of the king's ships, who passed it on to stukely, who thereupon communicated both attempts to the king. the next day stukely sent the further information to the court, that le clerc, the agent of the king of france, had offered raleigh a passage on a french ship, and letters which would procure him an honourable reception in france, which raleigh had refused on the ground that his escape was already provided for. stukely was accordingly ordered to feign friendship with raleigh, and to aid his attempt to escape, arresting him at the last moment; the object being to gain as much information as to his designs as he could from raleigh, and possibly to obtain papers which would contain evidence against him and his confederates. raleigh was thereupon taken to his own house in bread street, where he received a visit from le clerc, who repeated his offers, which were accepted, and he was finally arrested the next morning as he was escaping in a boat with stukely and king, and brought back once more to the tower. here sir thomas wilson, an old spy of queen elizabeth's, was set to extract from him, if he could, an acknowledgment of the true character of his dealings with the french; and at length raleigh wrote to the king admitting that he had sailed with a commission from the french admiral, and that la chesnée, the interpreter to the french ambassador, had offered to assist in his escape. meanwhile a commission had been sitting to advise the king as to the best course for him to follow. in the end they reported that raleigh could not be tried for any offence of which he had been guilty as an attainted man, that if he were executed at all, he must therefore be executed upon the old judgment, and that it would not be illegal to send him to execution on a simple warrant. at the same time, they recommended that he should be allowed something as near a trial as the circumstances admitted of; that there should be a public proceeding in which the witnesses should be publicly called, and that raleigh should be heard in his own defence. this, however, the king would not allow; and on the th of october , raleigh was brought up from the tower to the king's bench at westminster to receive judgment. he was called on to say why execution should not be awarded against him, and pleaded that whereas since judgment he had held the king's commission for a voyage beyond the seas, with power of life and death over others, he was discharged of the judgment; 'but the voyage, notwithstanding my endeavour, had no other success, but what was fatal to me, the loss of my son, and the wasting of my whole estate.' sir edward coke, now lord chief-justice, ruled that this plea was bad, as the commission had not the effect of a pardon, 'for by words of a special nature, in case of treason, you must be pardoned, and not implicitly.' he then proceeded, not without dignity, to order that execution should be granted. the night before the execution, sir walter wrote the following letters, the one to the king, the other to his wife:-- _sir walter raleigh's letter to the king._ 'the life which i had, most mighty prince, the law hath taken from me, and i am now but the same earth and dust out of which i was made. if my offence had any proportion with your majesty's mercy, i might despair, or if my deserving had any quantity with your majesty's unmeasurable goodness, i might yet have hope; but it is you that must judge that, not i. name, blood, gentility or estate, i have none; no not so much as a _vitam plantæ_: i have only a penitent soul in a body of iron, which moveth towards the loadstone of death, and cannot be with-held from touching it, except your majesty's mercy turn the point towards me that expelleth. lost i am for hearing of vain man, for hearing only, and never believing or accepting: and so little account i made of that speech of his, which was my condemnation (as my forsaking him doth truly witness), that i never remembered any such thing, till it was at my trial objected against me. so did he repay my care, who cared to make him good, which i now see no care of man can effect. but god (for my offence to him) hath laid this heavy burden upon me, miserable and unfortunate wretch that i am! but for not loving you (my sovereign), god hath not laid this sorrow on me; for he knows (with whom i am not in case to lie) that i honoured your majesty by fame, and loved and admired you by knowledge; so that whether i live or die, your majesty's loving servant i will live and die. if now, i write what seems not well-favoured, most merciful prince, vouchsafe to ascribe it to the counsel of a dead heart, and to a mind that sorrow hath confounded. but the more my misery is, the more is your majesty's mercy, if you please to behold it, and the less i can deserve, the more liberal your majesty's gift shall be: herein you shall only imitate god, by giving free life; and by giving it to such a one, from whom there can be no retribution, but only a desire to pay a lent life with the same great love, which the same great goodness shall bestow on it. this being the first letter that ever your majesty received from a dead man: i humbly submit myself to the will of god, my supreme lord, and shall willingly and patiently suffer whatsoever it shall please your majesty to afflict me withal. 'walter raleigh.' _sir walter raleigh's letter to his wife._ 'you shall now receive, my dear wife, my last words in these my last lines. my love i send you, that you may keep it when i am dead; and my counsel, that you may remember it when i am no more. i would not by my will present you with sorrows, dear besse, let them go into the grave with me, and be buried in the dust. and seeing that it is not god's will that i should see you any more in this life, bear it patiently, and with a heart like thyself. first, i send you all the thanks which my heart can conceive, or my words can rehearse, for your many travails, and care taken for me; which though they have not taken effect as you wished, yet my debt to you is not the less; but pay it i never shall in this world. secondly, i beseech you, for the love you bare me living, do not hide yourself many days, but by your travels seek to help your miserable fortunes, and the right of your poor child. thy mourning cannot avail me, i am but dust. thirdly, you shall understand that my land was conveyed _bona fide_ to my child: the writings were drawn at midsummer was twelve months, my honest cousin brett can testify so much, and dolberry too can remember somewhat therein. and i trust my blood will quench their malice that have cruelly murdered me, and that they will not seek also to kill thee and thine with extreme poverty. to what friend to direct thee i know not, for all mine have left me in the true time of trial. and i perceive that my death was determined from the first day. most sorry i am, god knows, that being thus surprised with death i can leave you in no better estate. god is my witness, i meant you all my office of wines, or all that i could have purchased by selling it, half my stuff, and all my jewels, but some one for the boy; but god hath prevented all my resolutions, that great god that ruleth all in all: but if you can live free from want, care for no more, the rest is but vanity. love god, and begin betimes to repose yourself upon him, and therein shall you find true and lasting riches and endless comfort: for the rest, when you have travelled and wearied your thoughts over all sorts of worldly cogitations, you shall but sit down by sorrow in the end. teach your son also to love and fear god whilst he is yet young, that the fear of god may grow with him; and then god will be a husband to you, and a father to him; a husband and a father that cannot be taken from you. baily oweth me £ and adrian £ in jersey. i also have much owing me besides. the arrearages of the wines will pay your debts. and howsoever you do, for my soul's sake, pay all poor men. when i am gone, no doubt you shall be sought to, for the world thinks i was very rich. but take heed of the pretences of men, and their affections, for they last not but in honest and worthy men; and no greater misery can befall you in this life than to become a prey, and afterwards to be despised. i speak not this, god knows, to dissuade you from marriage, for it will be best for you both in respect of the world and of god. as for me, i am no more yours, nor you mine, death hath cut us asunder; and god hath divided me from the world and you from me. remember your poor child for his father's sake who chose you and loved you in his happiest times. get those letters, if it be possible, which i writ to the lords, wherein i sued for life: god is my witness it was for you and yours that i desired life; but it is true that i disdained myself for begging of it: for know it, my dear wife, that your son is the son of a true man, and who, in his own respect, despiseth death, and all his misshapen and ugly form. i cannot write much, god he knows how hardly i steal this time while others sleep, and it is also time that i should separate my thoughts from the world. beg my dead body, which living was denied thee; and either lay it at sherburne (and if the land continue) or in exeter church by my father and mother. i can say no more, time and death call me away; the everlasting, powerful, infinite and omnipotent god, that almighty god, who is goodness itself, the true life and true light, keep thee and thine, have mercy on me, and teach me to forgive my persecutors and accusers, and send us to meet in his glorious kingdom. my dear wife, farewell. bless my poor boy. pray for me, and let my good god hold you both in his arms. written with the dying hand of sometime thy husband, but now alas overthrown.' 'walter raleigh.' on the th of october , at nine o'clock in the morning, raleigh was brought to the scaffold in old palace yard. as he began to make his dying speech he saw lords arundel, northampton, and doncaster with other lords and knights at a window, but too far off to hear him easily. 'i will strain my voice,' said he, 'for i would willingly have your honours hear me'; whereupon arundel and the others came down to the scaffold, and he having saluted them, began his speech again. he made no reference to his original conviction, but occupied himself in justifying his conduct since his return from guiana. he denied having had any commission from the french king, or knowing anything of a french agent till he met him in his lodgings. he never spoke dishonourably of the king. he did try to escape, but it was to save his life; and he feigned illness at salisbury, but it was in the hope of being able to work upon the king's pity. he forgave the frenchman, le clerc or la chesnée, and sir lewis stukeley, 'for i have received the sacrament this morning of mr. dean of westminster, and i have forgiven all men; but that they are perfidious, i am bound in charity to speak, that all men may take heed of them,' stukeley, 'my keeper and kinsman,' had said that he had told him that carew and doncaster had advised him to escape; but this was not true; and it was needless that they should so tell him, for he was left as much as ten days together at liberty to go where he would. he had not offered stukeley any money to procure his escape. so far was it from being the case that he was brought by force into england, his soldiers mutinied, and forced him to take an oath that he would not go there till they would; and it was only by great exertions that he persuaded them to go to ireland, and then to england. he had only £ with him when he started for guiana, and of that he gave his wife £ . 'it is said that i should be a persecutor of the death of the earl of essex, and that i stood in a window over against him when he suffered, and puffed out tobacco in disdain of him. god i take to witness, i shed tears for him when he died; and as i hope to look god in the face hereafter, my lord of essex did not see my face when he suffered, for i was afar off in the armoury when i saw him, but he saw not me. i confess indeed i was of the contrary faction, but i know my lord of essex was a noble gentleman, and that it would be worse with me when he was gone; for i got the hate of those who wished me well before, and those that set me against him afterwards set themselves against me, and were my greatest enemies, and my soul hath many times been grieved that i was not nearer him when he died; because, as i understood afterwards, that he asked for me at his death to have been reconciled unto me.' and then proclamation having been made, he took leave of the lords, knights, and gentlemen on the scaffold, particularly of lord arundel, and asked to see the axe, and when it was brought to him, he felt along the edge of it, and smiling, said to the sheriff, 'this is a sharp medicine, but it is a physician that will cure all diseases.' he then prayed a little, and having made the sign, the executioner cut off his head with two blows. footnotes: [ ] the following are the leading dates in raleigh's life. he was born about at hayes, near budleigh salterton; he was at oriel in ; he was present at the battles of jarnac and montcontour in ; he may have been in paris during the massacre of st. bartholomew in ; he was in islington in ; and fighting in the low countries in . he left england on a freebooting expedition the same year, and returned in . he was about the court on his return, and in went to ireland, where he massacred the spanish prisoners taken at smerwick. in he returned to the court, and attracted the queen's notice, possibly by laying down his cloak for her to walk over, according to the well-known legend, for which professor laughton and mr. sidney lee consider that there may be a foundation in fact. he was knighted in , and made warden of the stannaries in , and subsequently received many other profitable grants. in he sent out the expedition which discovered virginia, and other expeditions to occupy it, but without success, in and . in began his quarrel with essex; he was in ireland in , and returned to introduce spenser to the queen. in he helped to fit out a powerful expedition, and against the queen's orders took it to sea himself; returning in a few months, after capturing the _madre de dios_, containing a cargo estimated at the value of half a million. he was committed to the tower in july for having carried on an intrigue with elizabeth throgmorton, and he retired to sherborne in the same year. in raleigh and his friends harriot and marlowe incurred the suspicion of the government as atheists, and an inquiry was held, of which the results are not known. in february - he started on his first guiana expedition, and returned in after sailing some way up the orinoco. he took part in the expedition to cadiz in . in july he was sent with lord cobham to congratulate lord grey on the battle of nieuport, and later in the year went as governor to jersey. he was present, as related in the text, at essex's trial (see p. ). the immediate causes which led to his trial are stated above. [ ] archduke albert was a younger brother of the emperor rudolf ii., and had married isabella, the eldest daughter of philip ii. of spain, who made over the sovereignty of the netherlands to his daughter and son-in-law a few years before his death in . [ ] thomas howard, earl of suffolk ( - ), was the second son of the duke of norfolk beheaded by elizabeth in . he gained considerable distinction as a sailor, taking part in the defeat of the armada and the attack on the spanish treasure-ship in which sir richard grenville was killed. he rose to a position of influence under elizabeth, was made an earl on james's accession, and after filling many high offices became lord high treasurer in , which office he held till . in that year he was dismissed, fined £ , , and imprisoned in the tower, for serious embezzlements and other frauds. he was afterwards received back into favour: it was generally supposed that his wife was chiefly to blame for his defalcations. he was grandfather to the second lord howard of escrick, the witness against lord russell, whose trial see in vol. ii. [ ] charles blunt, earl of devon ( - ), was the second son of the eighth lord mountjoy. he soon attracted the queen's notice, fought in the low countries, and took part in the defeat of the armada. he was offered and accepted the post of lord deputy of ireland after it was vacated by essex, and was to some extent implicated in essex's subsequent treason. in he obtained tyrone's surrender in ireland after three years' fighting. he returned to england in , and held occasional important appointments. in he was married by laud to lady rich, the former mistress of sir philip sidney and himself, and the divorced wife of lord rich. the event is chiefly remarkable for the part taken in it by laud. [ ] henry howard, earl of northampton ( - ), was the second son of the earl of surrey, beheaded in henry viii.'s reign. after a long period of political intrigue he rose to power on james's accession, having long been in correspondence with him. he was an avowed enemy of raleigh. he maintained a position of great influence till the end of his life, generally using his influence in support of the king's prerogative and the catholics. after his death he was accused of complicity in the poisoning of sir thomas overbury in the tower: not altogether without reason. he built northumberland house. [ ] robert cecil, earl of salisbury ( ?- ), was at the time of this trial at the middle point of his long official career. he first appears in a public capacity in , when he was sent to spain in the train of lord derby, having been appointed ambassador to negotiate conditions of peace. he represented hertfordshire in the house of commons in ; in he was sworn of the privy council; and in , during the absence of his rival essex on the cadiz expedition, he was appointed secretary of state. in he took part in an embassy to paris with lord brooke, raleigh, and others to hinder an alliance between france and spain. in cecil was a member of a commission appointed to report on essex's return from ireland without permission, and managed to mitigate the gravity of his offence; but in , on essex's trial for treason, had to defend himself from an accusation by essex of having declared himself in favour of the infanta's claim to the throne. by careful preparations he secured the peaceable accession of james ii. to the throne, and was raised to the peerage, and eventually made earl of salisbury in consequence. for the rest of his life he remained james's most trusted minister. [ ] john popham ( - ) was born of a good family in somersetshire. he was reported to have been stolen by gypsies in his youth, but was educated at balliol. he began life in london as a law-student and a highwayman; but soon became, according to campbell, a consummate lawyer, practising chiefly as a special pleader. he became a serjeant and solicitor-general in , speaker in , attorney-general in , and lord chief-justice in . he presided at the trial of guy fawkes and his fellow-conspirators. he enjoyed the reputation of being a sound lawyer and a severe judge. he left the greatest estate that had ever been amassed by a lawyer; but it is probably untrue that he acquired littlecot hall by fraudulently acquitting 'wild darrell' of the murder of its newly born heir. he was, however, reported to have saved money while he was a highwayman. [ ] sir edmund anderson ( - ) was born at flinborough or broughton in lincolnshire. he was educated at lincoln college, oxford, called to the bar, and made a serjeant in . he tried robert brown, founder of the brownists, as assistant judge on the norfolk circuit in ; in the same year he tried campian, the jesuit, on the western circuit. in both cases he expressed strong views as to the claims of the established church. he was promoted to the chiefship of the common pleas in , and tried babington for treason in , and davison for beheading mary, queen of scots. he also took part in the trials of the duke of arundel; sir john perrot, lord deputy of ireland; and the earl of essex. he also tried udall, the puritan, and no doubt tried to entrap him into a confession of guilt. apart from political trials, he had the reputation of being a good judge and a sound lawyer. [ ] henry brooke, eighth lord cobham, was the son of a leading favourite of queen elizabeth's. on his father's death he succeeded to much of his father's influence; robert cecil married his sister; and they were both enemies of essex. cobham's influence did not last into james's reign, and he entered on the transactions which are discussed in raleigh's trial. he himself was tried and convicted after raleigh (see p. ), but after being pardoned on the scaffold he remained a prisoner in the tower till , when he was allowed to pay a visit to bath for his health: he died on the way home. [ ] arabella stuart was the daughter of the earl of lenox, younger brother of lord darnley, the grandson of margaret, eldest sister of henry vii., and thus stood next in succession to james. her claim to the throne as against james was that she was born in england, whereas he was an alien. she had been arrested by elizabeth in consequence of a rumour that she was to marry william seymour, grandson of catherine grey. she was imprisoned in on another rumour of her marriage to some person unknown. in she became actually engaged to william seymour: he promised not to marry her without the king's consent, but married her secretly a few months afterwards. the marriage was discovered, and she was committed to private custody whilst her husband was committed to the tower. she escaped, disguised in a man's clothes, but was arrested in the straits of dover. she died in the tower in . [ ] sir edward coke ( - ) came of an old norfolk family, and was educated at trinity college, cambridge. he was called to the bar in , having already acquired a reputation as a lawyer. he entered public life as member for aldborough in , and as member for norfolk in . he became speaker in , and in opposition to bacon became attorney-general in . in , on the death of his first wife, he married elizabeth hatton, burghley's granddaughter, again depriving bacon of a prize. he was retained to prosecute essex, southampton, and the gunpowder plot conspirators, against all of whom he showed the same animus that he did against raleigh. in he became chief-justice of the common pleas, in which capacity he maintained the independence of the law courts against ecclesiastical interference. he likewise offered a resolute opposition to the king's claim to place impositions on imported merchandise, and to regulate by proclamation such matters as the erection of new buildings in london and the manufacture of starch from wheat. in coke, much against his will, was promoted, on bacon's advice, to the post of chief-justice of the king's bench, where, though his dignity was greater, his profits were less, and he was less likely to have opportunity for opposing the king's measures. at the same time he was made a privy councillor. his opposition to the power of the chancellor to exercise his equitable jurisdiction by injunction, and to the king's power to grant commendams proved less successful than his former measures; and what was considered his excess of zeal in inquiring into the murder of sir thomas overbury, his opposition to the growth of the powers of the ecclesiastical commission and the star chamber, and no doubt other less public matters, led to his being deprived of his office on the th of november . after his dismissal he became engaged in a most undignified quarrel with his wife as to whether their daughter should marry buckingham's elder brother, which she eventually did. in he was recalled to the council, and occasionally judicially employed. in he re-entered the house of commons, and took up the popular side in resisting monopolies and other abuses. he was engaged in drawing up the charges against bacon in the same year. he drew up the 'protestation' affirming the privileges of parliament in december , and was committed to the tower in consequence. he was released in august , but remained in a kind of qualified confinement. he resisted an attempt by james to exclude him from the parliament by sending him on a commission to ireland, and though he continued in opposition contrived to reconcile himself to the king to some extent. he opposed charles's demands for money in his first two parliaments and drafted the petition of right, and made his final appearance in the debate on the grand remonstrance ( ), when he openly accused buckingham as being the cause of the misfortunes of the country. [ ] _post_, p. . [ ] andrews ( - ) was appointed to the living of st. giles, cripplegate, in , through walsingham's influence. he was made master of pembroke hall soon after. he refused two bishoprics offered him by elizabeth because he would not consent to the alienation of any part of their revenues; but became dean of windsor in . he subsequently became bishop of chichester in ; of ely in ; of winchester in . he took part in the hampton court conference, and his name stands first in the list of the authors of the authorised version. [ ] patrick galloway had followed the king from scotland: he had assisted james in some of his religious writings, and was moderator of the general assembly in and . he afterwards upheld the liberties of the kirk against the attempts of james to restrict them, and warmly supported the five articles of perth in . [ ] see _ante_, p. . [ ] see _ante_, p. . [ ] sir amyas preston came of a good family settled at crichet in somerset. he was lieutenant of the _ark_ in the attack on the armada: and afterwards ravaged the west indies, in company of somers, in . he was knighted by howard during his cadiz expedition. he seems to have been a friend of essex; the challenge to raleigh took place in , but did not lead to a meeting. [ ] edmund campian ( - ), the famous jesuit, was educated at christ's hospital, and afterward at st. john's, oxford. he took an oath against the pope's supremacy on proceeding to a master's degree, in ; but was probably always a catholic at heart. he welcomed elizabeth to oxford in a latin oration in , and was subsequently patronised by leicester and cecil. he took deacon's orders, and went to dublin in the hope of having the direction of the dublin university, which it was proposed to resuscitate. he fell under suspicion as a papist, but managed to escape arrest and return to england, whence, after hearing dr. storey's trial in , he repaired to douay, and formally renounced the protestant faith. he went to rome, became a jesuit, and was among the first to be despatched to england on a jesuit mission. he landed at dover in , and was arrested, but released and went to london. after various adventures in different parts of the country he was again arrested, and brought to london in . he was rigorously examined as to his mission, but concealed the fact that he was charged to persuade catholics to separate themselves from the english communion. afterwards he was tortured, and a report, probably false, was spread abroad that he had betrayed his companions. he was then called upon to meet his adversaries in a public disputation, which he did with great courage and skill. after being again tortured, he was tried and convicted of treason in stirring up sedition. his trial was most unfairly conducted, and it seems probable that the charge was altogether false. he was executed on st december . [ ] 'take heed of a preacher as essex did.' essex admitted his guilt at the end of his trial. howell (_state trials_, vol. i. p. ) says: 'on the th of february , which was the day appointed for his execution, thomas mountford and william barlow, doctors of divinity, with ashton, the minister of the church in the tower, were sent unto him early to administer christian consolation to his soul. in the presence of these men he gave thanks to almighty god from the bottom of his heart, that his designs, which were so dangerous to the state, succeeded not. he told them he had now looked thoroughly and seriously into his sin, and was heartily sorry he had so obstinately defended an unjust cause at the bar.... he acknowledged how worthy he was to be spued out (these were his words) by the commonwealth for the wickedness of his enterprize, which he likened to a leprosy spread far and near, and that he had infected many.' charles i the following report was first published 'by authority, to prevent false and impertinent relations.' it was licensed by gilbert mabbot, and, so far as one can judge from internal evidence, is rather the slightly amplified transcript of a barrister's note, than the work of anybody who in those days might represent a modern newspaper reporter. the whole is carelessly put together, as far as form is concerned; the grammar is often halting, and the sentences are not always finished. but i should suppose that all the arguments used on either side are fairly indicated, except in those places where it is suggested in a note that 'authority' made excisions. if such excisions were made, however, the fact that the gaps were left in their present state is evidence of the substantial accuracy and fairness of the rest of the report. taking a purely legal view of the matter, which no one will pretend covers the whole, or indeed the most important part of the case, one does not see why, if bradshaw left in as much as he did, he should not have left in everything. from the point of view of defending counsel, charles had an unanswerable case, and he was enough of a lawyer to make the most of it. bradshaw, on the other hand, seems, to me at least, to have played his part not badly. considering all things, i do not myself see that his behaviour to charles was unnecessarily harsh. if you have made up your mind to cut off a man's head, and if you are aware that your position as a judge is a false one, you are bound to assert your authority without much regard to prisoners' feelings, or even good manners. i am not in a position to discuss what effect the essential illegality of the trial, from a formal point of view, produced on contemporary and subsequent opinion; but i think it may safely be said that the trial presents the most striking example to be found in english history of the view held in this country of the authority of the law. i have only to add that in this trial i have reproduced the original report exactly as i found it. on saturday, being the th day of january , the lord president of the high court of justice,[ ] with near fourscore of the members of the said court, having sixteen gentlemen with partizans, and a sword, and a mace, with their and other officers of the said court, marching before them, came to the place ordered to be prepared for their sitting at the west-end of the great hall at westminster; where the lord president, in a crimson velvet chair, fixed in the midst of the court, placed himself, having a desk with a crimson-velvet cushion before him; the rest of the members placing themselves on each side of him upon several seats, or benches, prepared and hung with scarlet for that purpose; and the partizans dividing themselves on each side of the court before them. the court being thus sat, and silence made, the great gate of the said hall was set open, to the end that all persons without exception, desirous to see or hear, might come into it. upon which the hall was presently filled, and silence again ordered. this done, colonel thomlinson, who had the charge of the prisoner, was commanded to bring him to the court; who within a quarter of an hour's space brought him, attended with about twenty officers with partizans, marching before him, there being other gentlemen, to whose care and custody he was likewise committed, marching in his rear. being thus brought up within the face of the court, the serjeant at arms, with his mace, receives and conducts him strait to the bar, having a crimson-velvet chair set before him. after a stern looking upon the court, and the people in the galleries on each side of him, he places himself, not at all moving his hat, or otherwise shewing the least respect to the court; but presently rises up again, and turns about, looking downwards upon the guards placed on the left side, and on the multitude of spectators on the right side of the said great hall. after silence made among the people, the act of parliament for the trying of charles stuart, king of england, was read over by the clerk of the court, who sat on one side of a table covered with a rich turkey-carpet, and placed at the feet of the said lord president; upon which table was also laid the sword and mace. after reading the said act, the several names of the commissioners were called over, every one who was present, being eighty, as aforesaid, rising up, and answering to his call. having again placed himself in his chair, with his face towards the court, silence being again ordered, the lord president stood up, and said, lord president--charles stuart, king of england, the commons of england assembled in parliament being deeply sensible of the calamities that have been brought upon this nation, which is fixed upon you as the principal author of it, have resolved to make inquisition for blood; and according to that debt and duty they owe to justice, to god, the kingdom, and themselves, and according to the fundamental power that rests in themselves, they have resolved to bring you to trial and judgment; and for that purpose have constituted this high court of justice, before which they are brought. this said, mr. cook,[ ] solicitor for the commonwealth standing within a bar on the right hand of the prisoner, offered to speak; but the king having a staff in his hand, held it up, and laid it on the said mr. cook's shoulder two or three times, bidding him hold. nevertheless, the lord president ordering him to go on, he said, mr. cook--my lord, i am commanded to charge charles stuart king of england, in the name of the commons of england, with treason and high misdemeanors; i desire the said charge may be read. the said charge being delivered to the clerk of the court, the lord president ordered it should be read; but the king bid him hold. nevertheless, being commanded by the lord president to read it, the clerk begun, and the prisoner sat down again in his chair, looking sometimes on the high court, sometimes up to the galleries; and having risen again, and turned about to behold the guards and spectators, sat down, looking very sternly, and with a countenance not at all moved, till these words, viz.:--'charles stuart to be a tyrant and traitor,' etc. were read; at which he laughed, as he sat, in the face of the court. the charge being read, the lord president replied; lord president--sir, you have now heard your charge, containing such matter as appears in it; you find, that in the close of it, it is prayed to the court, in the behalf of the commons of england, that you answer to your charge. the court expects your answer. king--i would know by what power i am called hither; i was not long ago in the isle of wight; how i came there, is a longer story than i think it fit at this present time for me to speak of; but there i entered into a treaty with both houses of parliament, with as much public faith as it is possible to be had of any people in the world. i treated there with a number of honorable lords and gentlemen, and treated honestly and uprightly; i cannot say but they did very nobly with me, we were upon the conclusion of the treaty. now i would know by what authority, i mean lawful; there are many unlawful authorities in the world, thieves and robbers by the highways; but i would know by what authority i was brought from thence, and carried from place to place, and i know not what; and when i know what lawful authority, i shall answer. remember i am your king, your lawful king, and what sins you bring upon your heads, and the judgment of god upon this land; think well upon it, i say, think well upon it, before you go further from one sin to a greater; therefore let me know by what lawful authority i am seated here, and i shall not be unwilling to answer. in the mean time, i shall not betray my trust; i have a trust committed to me by god, by old and lawful descent; i will not betray it, to answer to a new unlawful authority; therefore resolve me that and you shall hear more of me. lord president--if you had been pleased to have observed what was hinted to you by the court, at your first coming hither, you would have known by what authority; which authority requires you, in the name of the people of england, of which you are elected king, to answer them. king--no. sir, i deny that. lord president--if you acknowledge not the authority of the court, they must proceed. king--i do tell them so; england was never an elective kingdom, but an hereditary kingdom, for near these thousand years; therefore let me know by what authority i am called hither. i do stand more for the liberty of my people, than any here that come to be my pretended judges; and therefore let me know by what lawful authority i am seated here, and i will answer it; otherwise i will not answer it. lord president--sir, how really you have managed your trust, is known: your way of answer is to interrogate the court, which beseems not you in this condition. you have been told of it twice or thrice. king--here is a gentleman, lieutenant-colonel cobbet; ask him, if he did not bring me from the isle of wight by force. i do not come here as submitting to the court: i will stand as much for the privilege of the house of commons, rightly understood, as any man here whatsoever. i see no house of lords here that may constitute a parliament; and the king too should have been. is this the bringing of the king to his parliament? is this the bringing an end to the treaty in the public faith of the world? let me see a legal authority warranted by the word of god, the scriptures, or warranted by the constitutions of the kingdom, and i will answer. lord president--sir; you have propounded a question, and have been answered. seeing you will not answer, the court will consider how to proceed; in the mean time, those that brought you hither, are to take charge of you back again. the court desires to know, whether this be all the answer you will give or no. king--sir, i desire that you would give me, and all the world, satisfaction in this: let me tell you, it is not a slight thing you are about, i am sworn to keep the peace, by that duty i owe to god and my country, and i will do it to the last breath of my body; and therefore ye shall do well to satisfy first god, and then the country, by what authority you do it; if you do it by an usurped authority, you cannot answer. there is a god in heaven, that will call you, and all that give you power, to account. satisfy me in that, and i will answer; otherwise i betray my trust, and the liberties of the people: and therefore think of that, and then i shall be willing. for i do avow, that it is as great a sin to withstand lawful authority, as it is to submit to a tyrannical, or any other ways unlawful authority; and therefore satisfy me that, and you shall receive my answer. lord president--the court expects you should give them a final answer; their purpose is to adjourn to monday next; if you do not satisfy yourself, though we do tell you our authority, we are satisfied with our authority, and it is upon god's authority and the kingdom's; and that peace you speak of will be kept in the doing of justice, and that is our present work. king--for answer, let me tell you, you have shewn no lawful authority to satisfy any reasonable man. lord president--that is, in your apprehension; we are satisfied that are your judges. king--it is not my apprehension, nor yours neither, that ought to decide it. lord president--the court hath heard you, and you are to be disposed of as they have commanded. the court adjourns to the painted chamber, on monday at ten of the clock in the forenoon, and thence hither. it is to be observed that as the charge was reading against the king, the head of his staff fell off, which he wondered at; and seeing none to take it up, he stoops for it himself. as the king went away, facing the court, he said, 'i do not fear that' (meaning the sword). the people in the hall, as he went down the stairs, cried out, some, 'god save the king' and most for 'justice.'[ ] at the high court of justice sitting in westminster hall, monday, january , . o yes! made; silence commanded; the court called, and answered to their names. silence commanded upon pain of imprisonment, and the captain of the guard to apprehend all such as make disturbance. upon the king's coming in, a shout was made. command given by the court to the captain of the guard, to fetch and take into his custody those who make any disturbance. mr. solicitor--may it please your lordship, my lord president; i did at the last court in the behalf of the commons of england, exhibit and give in to this court a charge of high treason, and other high crimes, against the prisoner at the bar whereof i do accuse him in the name of the people of england; and the charge was read unto him, and his answer required. my lord, he was not then pleased to give an answer, but instead of answering, did there dispute the authority of this high court. my humble motion to this high court in behalf of the kingdom of england is, that the prisoner may be directed to make a positive answer, either by way of confession, or negation; which if he shall refuse to do, that the matter of the charge may be taken _pro confesso_, and the court may proceed according to justice. lord president--sir, you may remember at the last court you were told the occasion of your being brought hither, and you heard a charge read against you, containing a charge of high treason and other high crimes against this realm of england: you heard likewise, that it was prayed in the behalf of the people, that you should give an answer to that charge, that thereupon such proceedings might be had, as should be agreeable to justice. you were then pleased to make some scruples concerning the authority of this court, and knew not by what authority you were brought hither; you did divers times propound your questions, and were as often answered. that it was by authority of the commons of england assembled in parliament, that did think fit to call you to account for those high and capital misdemeanours wherewith you were then charged. since that the court hath taken into consideration what you then said; they are fully satisfied with their own authority, and they hold it fit you should stand satisfied with it too; and they do require it, that you do give a positive and particular answer to this charge that is exhibited against you; they do expect you should either confess or deny it; if you deny, it is offered in the behalf of the kingdom to be made good against you; their authority they do avow to the whole world, that the whole kingdom are to rest satisfied in, and you are to rest satisfied with it. and therefore you are to lose no more time, but to give a positive answer thereunto. king--when i was here last, it is very true, i made that question; truly if it were only my own particular case, i would have satisfied myself with the protestation i made the last time i was here against the legality of this court, and that a king cannot be tried by any superior jurisdiction on earth; but it is not my case alone, it is the freedom and the liberty of the people of england; and do you pretend what you will, i stand more for their liberties. for if power without law may make laws, may alter the fundamental laws of the kingdom, i do not know what subject he is in england, that can be sure of his life, or any thing that he calls his own: therefore when that i came here, i did expect particular reasons to know by what law, what authority you did proceed against me here. and therefore i am a little to seek what to say to you in this particular, because the affirmative is to be proved, the negative often is very hard to do: but since i cannot persuade you to do it, i shall tell you my reasons as short as i can--my reasons why in conscience and the duty i owe to god first, and my people next, for the preservation of their lives, liberties, and estates i conceive i cannot answer this, till i be satisfied of the legality of it. all proceedings against any man whatsoever---- lord president--sir, i must interrupt you, which i would not do, but that what you do is not agreeable to the proceedings of any court of justice: you are about to enter into argument, and dispute concerning the authority of this court, before whom you appear as a prisoner, and are charged as an high delinquent: if you take upon you to dispute the authority of the court, we may not do it, nor will any court give way unto it: you are to submit unto it, you are to give a punctual and direct answer, whether you will answer your charge or no, and what your answer is. king--sir, by your favour, i do not know the forms of law: i do know law and reason, though i am no lawyer professed; but i know as much law as any gentleman in england; and therefore (under favour) i do plead for the liberties of the people of england more than you do: and therefore if i should impose a belief upon any man, without reasons given for it, it were unreasonable: but i must tell you, that that reason that i have, as thus informed, i cannot yield unto it. lord president--sir, i must interrupt you, you may not be permitted; you speak of law and reason; it is fit there should be law and reason, and there is both against you. sir, the vote of the commons of england assembled in parliament, it is the reason of the kingdom, and they are these that have given to that law, according to which you should have ruled and reigned. sir, you are not to dispute our authority, you are told it again by the court. sir, it will be taken notice of, that you stand in contempt of the court, and your contempt will be recorded accordingly. king--i do not know how a king can be a delinquent; but by any law that ever i heard of, all men (delinquents, or what you will), let me tell you, they may put in demurrers against any proceeding as legal: and i do demand that, and demand to be heard with my reasons: if you deny that, you deny reason. lord president--sir, you have offered something to the court: i shall speak something unto you, the sense of the court. sir, neither you nor any man are permitted to dispute that point, you are concluded, you may not demur to the jurisdiction of the court: if you do, i must let you know, that they over-rule your demurrer; they sit here by the authority of the commons of england, and all your predecessors and you are responsible to them. king--i deny that; shew me one precedent. lord president--sir, you ought not to interrupt while the court is speaking to you. this point is not to be debated by you, neither will the court permit you to do it; if you offer it by way of demurrer to the jurisdiction of the court, they have considered of their jurisdiction, they do affirm their own jurisdiction. king--i say, sir, by your favour, that the commons of england was never a court of judicature: i would know how they came to be so. lord president--sir, you are not to be permitted to go on in that speech and these discourses. then the clerk of the court read as followeth:-- 'charles stuart, king of england, you have been accused on behalf of the people of england of high treasons, and other high crimes; the court have determined that you ought to answer the same.' king--i will answer the same so soon as i know by what authority you do this. lord president--if this be all that you will say, then gentlemen, you that brought the prisoner hither, take charge of him back again. king--i do require that i may give in my reasons why i do not answer, and give me time for that. lord president--sir, it is not for prisoners to require. king--prisoners! sir, i am not an ordinary prisoner. lord president--the court hath considered of their jurisdiction, and they have already affirmed their jurisdiction; if you will not answer, we shall give order to record your default. king--you never heard my reasons yet. lord president--sir, your reasons are not to be heard against the highest jurisdiction. king--shew me that jurisdiction where reason is not to be heard. lord president--sir, we shew it you here. the commons of england; and the next time you are brought, you will know more of the pleasure of the court; and, it may be, their final determination. king--shew me where ever the house of commons was a court of judicature of that kind. lord president--serjeant, take away the prisoner. king--well, sir, remember that the king is not suffered to give in his reasons for the liberty and freedom of all his subjects. lord president--sir, you are not to have liberty to use this language; how great a friend you have been to the laws and liberties of the people, let all england and the world judge. king--sir, under favour, it was the liberty, freedom, and laws of the subject, that ever i took--defended myself with arms; i never took up arms against the people, but for the laws. lord president--the command of the court must be obeyed; no answer will be given to the charge. king--well, sir! and so he was guarded forth to sir robert cotton's house. then the court adjourned to the painted chamber on tuesday at o'clock, and from thence they intend to adjourn to westminster hall; at which time all persons concerned are to give their attendance. at the high court of justice sitting in westminster hall, tuesday, january , . o yes made, silence commanded, the court called, persons present. the king comes in with his guard, looks with an austere countenance upon the court, and sits down. the second o yes made, and silence commanded. mr. cook, solicitor-general--may it please your lordship, my lord president; this is now the third time, that by the great grace and favour of this high court, the prisoner hath been brought to the bar before any issue joined in the cause. my lord, i did at the first court exhibit a charge against him, containing the highest treasons that ever was wrought upon the theatre of england; that a king of england trusted to keep the law, that had taken an oath so to do, that had tribute paid him for that end, should be guilty of a wicked design to subvert and destroy our laws, and introduce an arbitrary and tyrannical government, in defiance of the parliament and their authority, set up his standard for war against his parliament and people: and i did humbly pray, in the behalf of the people of england, that he might speedily be required to make an answer to the charge. but my lord, instead of making any answer, he did then dispute the authority of this high court. your lordship was pleased to give him a further day to consider, and to put in his answer; which day being yesterday, i did humbly move, that he might be required to give a direct and positive answer, either by denying or confession of it; but, my lord, he was then pleased for to demur to the jurisdiction of the court; which the court did then over-rule, and commanded him to give a direct and positive answer. my lord, besides this great delay of justice, i shall now humbly move your lordship for speedy judgment against him. my lord, i might press your lordship upon the whole, that according to the known rules of the law of the land, that if a prisoner shall stand as contumacious in contempt, and shall not put in an issuable plea, guilty or not guilty of the charge given against him, whereby he may come to a fair trial; that, as by an implicit confession, it may be taken _pro confesso_, as it hath been done to those who have deserved more favour than the prisoner at the bar has done. but, besides, my lord, i shall humbly press your lordship upon the whole fact. the house of commons, the supreme authority and jurisdiction of the kingdom, they have declared, that it is notorious, that the matter of the charge is true, as it is in truth, my lord, as clear as crystal, and as the sun that shines at noon-day: which if your lordship and the court be not satisfied in, i have notwithstanding, on the people of england's behalf, several witnesses to produce. and therefore i do humbly pray, and yet i must confess it is not so much i, as the innocent blood that hath been shed, the cry whereof is very great for justice and judgment; and therefore i do humbly pray, that speedy judgment be pronounced against the prisoner at the bar. lord president--sir, you have heard what is moved by the counsel on the behalf of the kingdom against you. sir, you may well remember, and if you do not, the court cannot forget, what dilatory dealings the court hath found at your hands. you were pleased to propound some questions, you have had our resolutions upon them. you were told, over and over again, that the court did affirm their own jurisdiction; that it was not for you, nor any other man, to dispute the jurisdiction of the supreme and highest authority of england, from which there is no appeal, and touching which there must be no dispute; yet you did persist in such carriage, as you gave no manner of obedience, nor did you acknowledge any authority in them, nor the high court that constituted this court of justice. sir, i must let you know from the court, that they are very sensible of these delays of your's, and that they ought not, being thus authorised by the supreme court of england, to be thus trifled withal; and that they might in justice, if they pleased, and according to the rules of justice, take advantage of these delays and proceed to pronounce judgment against you; yet nevertheless they are pleased to give direction, and on their behalfs i do require you, that you make a positive answer unto this charge that is against you, sir, in plain terms, for justice knows no respect of persons; you are to give your positive and final answer in plain english, whether you be guilty or not guilty of these treasons laid to your charge. the king, after a little pause, said, king--when i was here yesterday, i did desire to speak for the liberties of the people of england; i was interrupted; i desire to know yet whether i may speak freely or not. lord president--sir, you have had the resolution of the court upon the like question the last day, and you were told that having such a charge of so high a nature against you, and your work was, that you ought to acknowledge the jurisdiction of the court, and to answer to your charge. sir, if you answer to your charge, which the court gives you leave now to do, though they might have taken the advantage of your contempt; yet if you be able to answer to your charge, when you have once answered, you shall be heard at large, make the best defence you can. but, sir, i must let you know from the court, as their commands, that you are not to be permitted to issue out into any other discourses, till such time as you have given a positive answer concerning the matter that is charged upon you. king--for the charge, i value it not a rush; it is the liberty of the people of england that i stand for. for me to acknowledge a new court that i never heard of before, i that am your king, that should be an example to all the people of england for to uphold justice, to maintain the old laws: indeed i do not know how to do it. you spoke very well the first day that i came here (on saturday) of the obligations that i had laid upon me by god, to the maintenance of the liberties of my people; the same obligation you spake of, i do acknowledge to god that i owe to him, and to my people, to defend as much as in me lies the ancient laws of the kingdom: therefore, until that i may know that this is not against the fundamental laws of the kingdom, by your favour i can put in no particular charge.[ ] if you will give me time, i will shew you my reasons why i cannot do it, and this---- here, being interrupted, he said, by your favor, you ought not to interrupt me: how i came here, i know not; there's no law for it to make your king your prisoner. i was in a treaty upon the public faith of the kingdom, that was the known[ ] ... two houses of parliament that was the representative of the kingdom; and when that i had almost made an end of the treaty, then i was hurried away, and brought hither: and therefore---- here the lord president said, sir, you must know the pleasure of the court. king--by your favour, sir. lord president--nay, sir, by your favour, you may not be permitted to fall into those discourses; you appear as a delinquent, you have not acknowledged the authority of the court, the court craves it not of you; but once more they command you to give your positive answer.--clerk, do your duty. king--duty, sir! the clerk reads. 'charles stuart, king of england, you are accused in behalf of the commons of england of divers crimes and treasons, which charge hath been read unto you: the court now requires you to give your positive and final answer, by way of confession or denial of the charge.' king--sir, i say again to you, so that i might give satisfaction to the people of england of the clearness of my proceeding, not by way of answer, not in this way, but to satisfy them that i have done nothing against that trust that has been committed to me, i would do it; but to acknowledge a new court, against their privileges, to alter the fundamental laws of the kingdom--sir, you must excuse me. lord president--sir, this is the third time that you have publicly disowned this court, and put an affront upon it. how far you have preserved the privileges of the people, your actions have spoke it; but truly, sir, men's intentions ought to be known by their actions; you have written your meaning in bloody characters throughout the whole kingdom. but, sir, you understand the pleasure of the court.--clerk, record the default.--and, gentlemen, you that took charge of the prisoner, take him back again. king--i will only say this one word more to you: if it were only my own particular, i would not say any more, nor interrupt you. lord president--sir, you have heard the pleasure of the court, and you are (notwithstanding you will not understand it) to find that you are before a court of justice. then the king went forth with his guard, and proclamation was made, that all persons which had then appeared, and had further to do at the court, might depart into the painted chamber; to which place the court did forthwith adjourn, and intended to meet in westminster hall by ten of the clock next morning. cryer--god bless the kingdom of england! wednesday, january th, . this day it was expected the high court of justice would have met in westminster hall, about ten of the clock; but at the time appointed, one of the ushers, by direction of the court (then sitting in the painted chamber) gave notice to the people there assembled, that in regard the court was then upon the examination of witnesses, in relation to present affairs, in the painted chamber, they could not sit there; but all persons appointed to be there, were to appear upon further summons. the proceedings of the high court of justice sitting in westminster hall, on saturday the th of january . o yes made: silence commanded; the court called; serjeant bradshaw lord president (in a scarlet robe), with sixty-eight other members of the court. as the king comes in, a cry made in the hall for execution! justice! execution![ ] king--i shall desire a word to be heard a little, and i hope i shall give no occasion of interruption. lord president--you may answer in your time, hear the court first. king--if it please you, sir, i desire to be heard, and i shall not give any occasion of interruption, and it is only in a word: a sudden judgment. lord president--sir, you shall be heard in due time, but you are to hear the court first. king--sir, i desire--it will be in order to what i believe the court will say; and therefore, sir, an hasty judgment is not so soon recalled. lord president--sir, you shall be heard before the judgment be given, and in the mean time you may forbear. king--well, sir, shall i be heard before the judgment be given? lord president--gentlemen, it is well known to all, or most of you here present, that the prisoner at the bar hath been several times convened and brought before the court to make answer to a charge of treason, and other high crimes exhibited against him in the name of the people of england [here a malignant lady (lady fairfax) interrupted the court, saying 'not half the people'; but she was soon silenced. see the trial of daniel axtell, oct. , ]; to which charge being required to answer he hath been so far from obeying the commands of the court by submitting to their justice, as he began to take upon him to offer reasoning and debate unto the authority of the court, and of the highest court that constituted them to try and judge him: but being over-ruled in that, and required to make his answer, he was still pleased to continue contumacious, and to refuse to submit or answer. hereupon the court, that they may not be wanting to themselves, to the trust reposed in them, nor that any man's wilfulness prevent justice, they have thought fit to take the matter into their consideration, they have considered of the charge, they have considered of the contumacy, and of that confession, which in law doth arise upon that contumacy; they have likewise considered of the notoriety of the fact charged upon this prisoner, and upon the whole matter they are resolved, and have agreed upon a sentence to be now pronounced against this prisoner; but in respect he doth desire to be heard, before the sentence be read and pronounced, the court hath resolved that they will hear him. yet, sir, thus much i must tell you beforehand, which you have been minded of at other courts, that if that you have to say be to offer any debate concerning jurisdiction, you are not to be heard in it; you have offered it formerly, and you have indeed struck at the root, that is, the power and supreme authority of the commons of england, which this court will not admit a debate of; and which indeed is an irrational thing in them to do, being a court that acts upon authority derived from them, that they should presume to judge upon their superior, from whom there is no appeal. but, sir, if you have anything to say in defence of yourself concerning the matter charged, the court hath given me in command to let you know they will hear you. king--since that i see that you will not hear anything of debate concerning that which i confess i thought most material for the peace of the kingdom, and for the liberty of the subject, i shall wave it; i shall speak nothing to it, but only i must tell you, that this many a day all things have been taken away from me, but that, that i call more dear to me than my life, which is my conscience and my honour: and if i had respect to my life more than the peace of the kingdom, the liberty of the subject, certainly i should have made a particular defence for myself; for by that at leastwise i might have delayed an ugly sentence, which i believe will pass upon me. therefore certainly, sir, as a man that hath some understanding, some knowledge of the world, if that my true zeal to my country had not overborne the care that i have of my own preservation, i should have gone another way to work than that i have done. now, sir, i conceive, that an hasty sentence once passed, may sooner be repented than recalled; and truly, the self-same desire that i have for the peace of the kingdom, and the liberty of the subject more than my own particular, does make me now at last desire, that having something for to say that concerns both, i desire before sentence be given, that i may be heard in the painted chamber before the lords and commons. this delay cannot be prejudicial to you, whatsoever i say; if that i say no reason, those that hear me must be judges: i cannot be judge of that, which i have: if it be reason, and really for the welfare of the kingdom, and the liberty of the subject, i am sure on't, very well it is worth the hearing; therefore i do conjure you, as you love that which you pretend, i hope it is real, the liberty of the subject, the peace of the kingdom, that you will grant me the hearing, before any sentence be past. i only desire this, that you will take this into your consideration, it may be you have not heard of it before-hand; if you will, i'll retire, and you may think of it; but if i cannot get this liberty i do here protest, that so fair shews of liberty and peace are pure shews, and not otherwise, since you will not hear your king. lord president--sir, you have now spoken. king--yes, sir. lord president--and this that you have said is a further declining of the jurisdiction of this court, which was the thing wherein you were limited before. king--pray excuse me, sir, for my interruption, because you mistake me; it is not a declining of it, you do judge me before you hear me speak; i say it will not, i do not decline it, though i cannot acknowledge the jurisdiction of the court; yet, sir, in this give me leave to say, i would do it, though i do not by this acknowledge it, i do protest it is not the declining of it, since i say, if that i do say any thing, but that which is for the peace of the kingdom, and the liberty of the subject, then the shame is mine. now i desire that you will take this into your consideration; if you will, i'll withdraw. lord president--sir, this is not altogether new that you have moved unto us, not altogether new to us, though it is the first time in person you have offered it to the court. sir, you say you do not decline the jurisdiction of the court. king--not in this that i have said. lord president--i understand you well, sir; but nevertheless, that which you have offered seems to be contrary to that saying of yours; for the court are ready to give a sentence; it is not as you say, that they will not hear your king; for they have been ready to hear you, they have patiently waited your pleasure for three courts together, to hear what you would say to the people's charge against you, to which you have not vouchsafed to give any answer at all. sir, this tends to a further delay; truly, sir, such delays as these, neither may the kingdom nor justice well bear; you have had three several days to have offered in this kind what you would have pleased. this court is founded upon that authority of the commons of england in whom rests the supreme jurisdiction; that which you now tender is to have another jurisdiction, and a co-ordinate jurisdiction. i know very well you express yourself, sir, that notwithstanding that you would offer to the lords and commons in the painted chamber, yet nevertheless you would proceed on here, i did hear you say so. but, sir, that you would offer there, whatever it is, it must needs be in delay of the justice here; so as if this court be resolved, and prepared for the sentence, this that you offer they are not bound in justice to grant; but, sir, according to what you seem to desire, and because you shall know the further pleasure of the court upon that which you have moved, the court will withdraw for a time. king--shall i withdraw? lord president--sir, you shall know the pleasure of the court presently. the court withdraws for half an hour into the court of wards. serjeant-at-arms--the court gives command, that the prisoner be withdrawn; and they give order for his return again. the court withdraws for half an hour and returns. lord president--serjeant-at-arms, send for your prisoner. sir, you were pleased to make a motion here to the court to offer a desire of yours, touching the propounding of somewhat to the lords in the painted chamber, for the peace of the kingdom; sir, you did, in effect, receive an answer before the court adjourned; truly, sir, their withdrawing, and adjournment was _pro forma tantum_: for it did not seem to them that there was any difficulty in the thing; they have considered of what you have moved, and have considered of their own authority, which is founded, as hath been often said, upon the supreme authority of the commons of england assembled in parliament: the court acts according to their commission. sir, the return i have to you from the court, is this: that they have been too much delayed by you already, and this that you now offer hath occasioned some little further delay; and they are judges appointed by the highest judges; and judges are no more to delay, than they are to deny justice: they are good words in the great old charter of england; _nulli negabimus, nulli vendemus, nulli differemus justitiam._ there must be no delay; but the truth is, sir, and so every man here observes it, that you have much delayed them in your contempt and default, for which they might long since have proceeded to judgment against you; and notwithstanding what you have offered, they are resolved to proceed to punishment, and to judgment, and that is their unanimous resolution. king--sir, i know it is in vain for me to dispute, i am no sceptic for to deny the power that you have; i know that you have power enough: sir, i confess, i think it would have been for the kingdom's peace, if you would have taken the pains for to have shewn the lawfulness of your power; for this delay that i have desired, i confess it is a delay, but it is a delay very important for the peace of the kingdom; for it is not my person that i look on alone, it is the kingdom's welfare, and the kingdom's peace; it is an old sentence, that we should think long, before we resolve of great matters. therefore, sir, i do say again, that i do put at your doors all the inconveniency of an hasty sentence. i confess i have been here now, i think, this week; this day eight days was the day i came here first, but a little delay of a day or two further may give peace; whereas an hasty judgment may bring on that trouble and perpetual inconveniency to the kingdom, that the child that is unborn may repent it; and therefore again, out of the duty i owe to god, and to my country, i do desire that i may be heard by the lords and commons in the painted chamber, or any other chamber that you will appoint me. lord president--sir, you have been already answered to what you even now moved, being the same you moved before, since the resolution and the judgment of the court in it; and the court now requires to know whether you have any more to say for yourself than you have said, before they proceed to sentence? king--i say this, sir, that if you will hear me, if you will give but this delay, i doubt not but i shall give some satisfaction to you all here, and to my people after that; and therefore i do require you, as you will answer it at the dreadful day of judgment, that you will consider it once again. lord president--sir, i have received direction from the court. king--well, sir. lord president--if this must be re-enforced, or any thing of this nature, your answer must be the same; and they will proceed to sentence, if you have nothing more to say. king--sir, i have nothing more to say, but i shall desire, that this may be entered what i have said. lord president--the court then, sir, hath something else to say to you; which, although i know it will be very unacceptable, yet notwithstanding they are willing, and are resolved to discharge their duty. sir, you speak very well of a precious thing, which you call peace; and it had been much to be wished that god had put it into your heart, that you had as effectually and really endeavoured and studied the peace of the kingdom, as now in words you seem to pretend; but, as you were told the other day, actions must expound intentions; yet actions have been clean contrary. and truly, sir, it doth appear plainly enough to them, that you have gone upon very erroneous principles: the kingdom hath felt it to their smart; and it will be no case to you to think of it; for, sir, you have held yourself, and let fall such language, as if you had been no way subject to the law, or that the law had not been your superior. sir, the court is very sensible of it, and i hope so are all the understanding people of england, that the law is your superior; that you ought to have ruled according to the law; you ought to have so. sir, i know very well your pretence hath been that you have done so; but, sir, the difference hath been who shall be the expositors of this law: sir, whether you and your party, out of courts of justice, shall take upon them to expound law, or the courts of justice, who are the expounders? nay, the sovereign and the high court of justice, the parliament of england, that are not only the highest expounders, but the sole makers of the law? sir, for you to set yourself with your single judgment, and those that adhere unto you, to set yourself against the highest court of justice, that is not law. sir, as the law is your superior, so truly, sir, there is something that is superior to the law, and that is indeed the parent or author of the law, and that is the people of england: for, sir, as they are those that at the first (as other countries have done) did chuse to themselves this form of government even for justice sake, that justice might be administered, that peace might be preserved; so, sir, they gave laws to their governors, according to which they should govern; and if those laws should have proved inconvenient or prejudicial to the public, they had a power in them, and reserved to themselves, to alter as they shall see cause. sir, it is very true what some of your side have said, '_rex non habet parem in regno_,' say they: this court will say the same, while king, that you have not your peer in some sense, for you are _major singulis_; but they will aver again that you are _minor universis_. and the same author tells you that, '_non debet esse major eo in regno suo in exhibitione juris, minimus autem esse debet in judicio suscipiendo_' [bract., de leg., lib. i. c. viii.] this we know to be law, _rex habet superiorem, deum et legem, etiam et curiam_; so says the same author. and truly, sir, he makes bold to go a little further, _debent ei ponere frænum_: they ought to bridle him. and, sir, we know very well the stories of old: those wars that were called the barons' war, when the nobility of the land did stand out for the liberty and property of the subject, and would not suffer the kings, that did invade, to play the tyrants freer, but called them to account for it; we know that truth, that they did _frænum ponere_. but, sir, if they do forbear to do their duty now, and are not so mindful of their own honour and the kingdom's good as the barons of england of old were, certainly the commons of england will not be unmindful of what is for their preservation, and for their safety; _justitiæ fruendi causa reges constituti sunt_. this we learn: the end of having kings, or any other governors, it is for the enjoying of justice; that is the end. now, sir, if so be the king will go contrary to that end, or any other governor will go contrary to the end of his government; sir, he must understand that he is but an officer in trust, and he ought to discharge that trust; and they are to take order for the animadversion and punishment of such an offending governor. this is not law of yesterday, sir (since the time of the division betwixt you and your people), but it is law of old. and we know very well the authors and the authorities that do tell us what the law was in that point upon the election of kings upon the oath that they took unto their people: and if they did not observe it, there were those things called parliaments; the parliaments were they that were to adjudge (the very words of the author) the plaints and wrongs done of the king and the queen, or their children; such wrongs especially, when the people could have no where else any remedy. sir, that hath been the people of england's case: they could not have their remedy elsewhere but in parliament. sir, parliaments were ordained for that purpose, to redress the grievances of the people; that was their main end. and truly, sir, if so be that the kings of england had been rightly mindful of themselves, they were never more in majesty and state than in the parliament: but how forgetful some have been, stories have told us, we have a miserable, a lamentable, a sad experience of it. sir, by the old laws of england, i speak these things the rather to you, because you were pleased to let fall the other day, you thought you had as much knowledge in the law as most gentlemen in england: it is very well, sir. and truly, sir, it is very fit for the gentlemen of england to understand that law under which they must live, and by which they must be governed. and then, sir, the scripture says, 'they that know their master's will and do it not' what follows? the law is your master, the acts of parliament. the parliaments were to be kept antiently, we find in our old author, twice in the year, that the subject upon any occasion might have a ready remedy and redress for his grievance. afterwards, by several acts of parliament in the days of your predecessor edward the third, they should have been once a year. sir, what the intermission of parliaments hath been in your time, it is very well known, and the sad consequences of it; and what in the interim instead of these parliaments hath been by you by an high and arbitrary hand introduced upon the people, that likewise hath been too well known and felt. but when god by his providence had so far brought it about, that you could no longer decline the calling of a parliament, sir, yet it will appear what your ends were against the antient and your native kingdom of scotland: the parliament of england not serving your ends against them, you were pleased to dissolve it. another great necessity occasioned the calling of this parliament; and what your designs, and plots, and endeavours all along have been, for the crushing and confounding of this parliament, hath been very notorious to the whole kingdom. and truly, sir, in that you did strike at all; that had been a sure way to have brought about that that this charge lays upon you, your intention to subvert the fundamental laws of the land; for the great bulwark of the liberties of the people is the parliament of england; and to subvert and root up that, which your aim hath been to do, certainly at one blow you had confounded the liberties and the property of england. truly, sir, it makes me to call to mind; i cannot forbear to express it; for, sir, we must deal plainly with you, according to the merits of your cause; so is our commission; it makes me to call to mind (these proceedings of yours) that that we read of a great roman emperor, by the way let us call him a great roman tyrant, caligula, that wished that the people of rome had had but one neck, that at one blow he might cut it off. and your proceedings have been somewhat like to this; for the body of the people of england hath been (and where else) represented but in the parliament; and could you but have confounded that, you had at one blow cut off the neck of england. but god hath reserved better things for us, and hath pleased for to confound your designs, and to break your forces, and to bring your person into custody, that you might be responsible to justice. sir, we know very well that it is a question much on your side press'd, by what precedent we shall proceed? truly, sir, for precedents, i shall not upon these occasions institute any long discourse; but it is no new thing to cite precedents almost of all nations, where the people (where the power hath been in their hands) have made bold to call their kings to account; and where the change of government hath been upon occasion of the tyranny and misgovernment of those that have been placed over them, i will not spend time to mention either france, or spain, or the empire, or other countries; volumes may be written of it. but truly, sir, that of the kingdom of arragon, i shall think some of us have thought upon it, where they have the justice of arragon, that is, a man, _tanquam in medio positus_, betwixt the king of spain and the people of the country; that if wrong be done by the king, he that is king of arragon, the justice, hath power to reform the wrong; and he is acknowledged to be the king's superior, and is the grand preserver of their privileges, and hath prosecuted kings upon their miscarriages. sir, what the tribunes of rome were heretofore, and what the ephori were to the lacedemonian state, we know that is the parliament of england to the english state; and though rome seemed to lose its liberty when once the emperors were; yet you shall find some famous acts of justice even done by the senate of rome; that great tyrant of his time, nero, condemned and judged by the senate. but truly, sir, to you i should not need to mention these foreign examples and stories: if you look but over tweed, we find enough in your native kingdom of scotland. if we look to your first king fergus, that your stories make mention of, he was an elective king; he died, and left two sons, both in their minority; the kingdom made choice of their uncle, his brother, to govern in the minority. afterwards the elder brother, giving small hope to the people that he would rule or govern well, seeking to supplant that good uncle of his that governed them justly, they set the elder aside, and took to the younger. sir, if i should come to what your stories make mention of, you know very well you are the hundred and ninth king of scotland; for not to mention so many kings as that kingdom, according to their power and privileges, have made bold to deal withal, some to banish, and some to imprison, and some to put to death, it would be too long: and as one of your own authors says, it would be too long to recite the manifold examples that your own stories make mention of. _reges_, etc. (say they) we do create: we created kings at first: _leges_, etc., we imposed laws upon them. and as they are chosen by the suffrages of the people at the first, so upon just occasion, by the same suffrages they may be taken down again. and we will be bold to say, that no kingdom hath yielded more plentiful experience than that your native kingdom of scotland hath done concerning the deposition and the punishment of their offending and transgressing kings. it is not far to go for an example: near you--your grandmother set aside, and your father, an infant, crowned. and the state did it here in england; here hath not been a want of some examples. they have made bold (the parliament and the people of england) to call their kings to account; there are frequent examples of it in the saxons' time, the time before the conquest. since the conquest there want not some precedents neither; king edward the second, king richard the second, were dealt with so by the parliament, as they were deposed and deprived. and truly, sir, whoever shall look into their stories, they shall not find the articles that are charged upon them to come near to that height and capitalness of crimes that are laid to your charge; nothing near. sir, you were pleased to say, the other day, wherein they dissent; and i did not contradict it. but take all together, sir; if you were as the charge speaks, and no otherwise, admitted king of england; but for that you were pleased then to alledge, how that for almost a thousand years these things have been, stories will tell you, if you go no higher than the time of the conquest; if you do come down since the conquest, you are the twenty-fourth king from william called the conqueror, you shall find one half of them to come merely from the state, and not merely upon the point of descent. it were easy to be instanced to you; but time must not be lost that way. and truly, sir, what a grave and learned judge said in his time, and well known to you, and is since printed for posterity, that although there was such a thing as a descent many times, yet the kings of england ever held the greatest assurance of their titles when it was declared by parliament. and, sir, your oath, the manner of your coronation, doth shew plainly, that the kings of england, although it is true, by the law the next person in blood is designed: yet if there were just cause to refuse him, the people of england might do it. for there is a contract and a bargain made between the king and his people, and your oath is taken; and certainly, sir, the bond is reciprocal; for as you are the liege lord, so they liege subjects. and we know very well, that hath been so much spoken of, _ligeantia est duplex_. this we know, now, the one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. sir, if this bond be once broken, farewell sovereignty! _subjectio trahit_, etc. these things may not be denied, sir; i speak it rather, and i pray god it may work upon your heart, that you may be sensible of your miscarriages. for whether you have been, as by your office you ought to be, a protector of england, or the destroyer of england, let all england judge, or all the world, that hath look'd upon it. sir, though you have it by inheritance in the way that is spoken of, yet it must not be denied that your office was an office of trust, and indeed an office of the highest trust lodged in any single person; for as you were the grand administrator of justice, and others were, as your delegates, to see it done throughout your realms; if your greatest office were to do justice, and preserve your people from wrong, and instead of doing that, you will be the great wrong-doer yourself; if instead of being a conservator of the peace, you will be the grand disturber of the peace; surely this is contrary to your office, contrary to your trust. now, sir, if it be an office of inheritance, as you speak of, your title by descent, let all men know that great offices are seizable and forfeitable, as if you had it but for a year, and for your life. therefore, sir, it will concern you to take into your serious consideration your great miscarriages in this kind. truly, sir, i shall not particularize the many miscarriages of your reign whatsoever, they are famously known: it had been happy for the kingdom, and happy for you too, if it had not been so much known, and so much felt, as the story of your miscarriages must needs be, and hath been already. sir, that which we are now upon, by the command of the highest court, hath been and is to try and judge you for these great offences of your's. sir, the charge hath called you tyrant, a traitor, a murderer, and a public enemy to the commonwealth of england. sir, it had been well if that any of all these terms might rightly and justly have been spared, if any one of them at all. king--ha! lord president--truly, sir, we have been told '_rex est dum bene regit, tyrannus qui populum opprimit_': and if so be that be the definition of a tyrant, then see how you come short of it in your actions, whether the highest tyrant, by that way of arbitrary government, and that you have sought for to introduce, and that you have sought to put, you were putting upon the people? whether that was not as high an act of tyranny as any of your predecessors were guilty of, nay, many degrees beyond it? sir, the term traitor cannot be spared. we shall easily agree it must denote and suppose a breach of trust; and it must suppose it to be done to a superior. and therefore, sir, as the people of england might have incurred that respecting you, if they had been truly guilty of it, as to the definition of law; so on the other side, when you did break your trust to the kingdom, you did break your trust to your superior; for the kingdom is that for which you were trusted. and therefore, sir, for this breach of trust when you are called to account, you are called to account by your superiors. '_minimus ad majorem in judicium vocat._' and, sir, the people of england cannot be so far wanting to themselves, god having dealt so miraculously and gloriously for them: but that having power in their hands, and their great enemy, they must proceed to do justice to themselves and to you: for, sir, the court could heartily desire, that you would lay your hand upon your heart, and consider what you have done amiss, that you would endeavour to make your peace with god. truly, sir, these are your high-crimes, tyranny and treason. there is a third thing too, if those had not been, and that is murder, which is laid to your charge. all the bloody murders, which have been committed since this time that the division was betwixt you and your people, must be laid to your charge, which have been acted or committed in these late wars. sir, it is an heinous and crying sin: and truly, sir, if any man will ask us what punishment is due to a murderer, let god's law, let man's law speak. sir, i will presume that you are so well read in scripture, as to know what god himself hath said concerning the shedding of man's blood: gen. ix., numb. xxxv. will tell you what the punishment is: and which this court, in behalf of the whole kingdom, are sensible of, of that innocent blood that has been shed, whereby indeed the land stands still defiled with that blood; and, as the text hath it, it can no way be cleansed but with the shedding of the blood of him that shed this blood. sir, we know no dispensation from this blood in that commandment 'thou shalt do no murder': we do not know but that it extends to kings as well as to the meanest peasants, the meanest of the people: the command is universal. sir, god's law forbids it; man's law forbids it: nor do we know that there is any manner of exception, not even in man's laws, for the punishment of murder in you. it is true, that in the case of kings every private hand was not to put forth itself to this work for their reformation and punishment; but, sir, the people represented having power in their hands, had there been but one wilful act of murder by you committed, had power to have convened you, and to have punished you for it. but then, sir, the weight that lies upon you in all those respects that have been spoken, by reason of your tyranny, treason, breach of trust, and the murders that have been committed; surely, sir, it must drive you into a sad consideration concerning your eternal condition. as i said at first, i know it cannot be pleasing to you to hear any such things as these are mentioned unto you from this court, for so we do call ourselves, and justify ourselves to be a court, and a high court of justice, authorized by the highest and solemnest court of the kingdom, as we have often said; and although you do not yet endeavour what you may to discourt us, yet we do take knowledge of ourselves to be such a court as can administer justice to you: and we are bound, sir, in duty to do it. sir, all i shall say before the reading of your sentence, it is but this: the court does heartily desire that you will seriously think of those evils that you stand guilty of. sir, you said well to us the other day, you wished us to have god before our eyes. truly sir, i hope all of us have so: that god, who we know is a king of kings, and lord of lords; that god with whom there is no respect of persons; that god, who is the avenger of innocent blood; we have that god before us; that god, who does bestow a curse upon them that with-hold their hands from shedding of blood, which is in the case of guilty malefactors, and that do deserve death: that god we have before our eyes. and were it not that the conscience of our duty hath called us unto this place, and this imployment, sir, you should have had no appearance of a court here. but, sir, we must prefer the discharge of our duty unto god, and unto the kingdom, before any other respect whatsoever. and although at this time many of us, if not all of us, are severely threatened by some of your party, what they intend to do, sir, we do here declare, that we shall not decline or forbear the doing of our duty in the administration of justice, even to you, according to the merit of your offence although god should permit those men to effect all that bloody design in hand against us. sir, we will say, and we will declare it, as those children in the fiery furnace, that would not worship the golden image, that nebuchadnezzar had set up, 'that their god was able to deliver them from that danger that they were near unto'; but yet if he would not do it, yet notwithstanding that they would not fall down and worship the image. we shall thus apply it; that though we should not be delivered from those bloody hands and hearts that conspire the overthrow of the kingdom in general, of us in particular, for acting in this great work of justice, though we should perish in the work, yet by god's grace, and by god's strength, we will go on with it. and this is all our resolutions, sir, i say for yourself, we do heartily wish and desire that god would be pleased to give you a sense of your sins, that you would see wherein you have done amiss, that you may cry unto him, that god would deliver you from blood-guiltiness. a good king was once guilty of that particular thing, and was clear otherwise, saving in the matter of uriah. truly, sir, the story tells us that he was a repentant king: and it signifies enough, that he had died for it, but that god was pleased to accept of him, and to give him his pardon, 'thou shalt not die, but the child shall die: thou hast given cause to the enemies of god to blaspheme.' king--i would desire only one word before you give sentence; and that is, that you would hear me concerning those great imputations that you have laid to my charge. lord president--sir, you must give me now leave to go on; for i am not far from your sentence, and your time is now past. king--but i shall desire you will hear me a few words to you: for truly, whatever sentence you will put upon me in respect of those heavy imputations, that i see by your speech you have put upon me; sir, it is very true, that---- lord president--sir, i must put you in mind: truly, sir, i would not willingly, at this time especially, interrupt you in anything you have to say, that is proper for us to admit of; but, sir, you have not owned us as a court, and you look upon us as a sort of people met together; and we know what language we receive from your party. king--i know nothing of that. lord president--you disavow us as a court; and therefore for you to address yourself to us, not acknowledging us as a court to judge of what you say, it is not to be permitted. and the truth is, all along, from the first time you were pleased to disavow and disown us, the court needed not to have heard you one word; for unless they be acknowledged a court, and engaged, it is not proper for you to speak. sir, we have given you too much liberty already, and admitted of too much delay, and we may not admit of any farther. were it proper for us to do it, we should hear you freely; and we should not have declined to hear you at large, what you could have said or proved on your behalf, whether for totally excusing, or for in part excusing those great and heinous charges, that in whole or in part are laid upon you. but, sir, i shall trouble you no longer; your sins are of so large a dimension, that if you do but seriously think of them, they will drive you to a sad consideration of it, and they may improve in you a sad and serious repentance; and that the court doth heartily wish that you may be so penitent for what you have done amiss, that god may have mercy, at leastwise, upon your better part: truly, sir, for the other, it is our parts and duties to do that, which the law prescribes. we are not here _jus dare_ but _jus dicere_. we cannot be unmindful of what the scripture tells us; 'for to acquit the guilty is of equal abomination, as to condemn the innocent.' we may not acquit the guilty. what sentence the law affirms to a traitor, tyrant, a murderer, and a public enemy to the country, that sentence you are now to hear read unto you; and that is the sentence of the court. the lord president commands the sentence to be read: make an o yes, and command silence while the sentence is read. o yes made: silence commanded. the clerk read the sentence, which was drawn up in parchment: 'whereas the commons of england in parliament had appointed them an high court of justice, for the trying of charles stuart, king of england, before whom he had been three times convened; and at the first time a charge of high-treason, and other crimes and misdemeanors, was read in the behalf of the kingdom of england,' etc. [here the clerk read the charge.] 'which charge being read unto him, as aforesaid, he the said charles stuart was required to give his answer: but he refused so to do; and so expressed the several passages of his trial in refusing to answer. for all which treasons and crimes this court doth adjudge, that the said charles stuart, as a tyrant, traitor, murderer, and a public enemy, shall be put to death, by the severing his head from his body.' after the sentence read, the lord president said, this sentence now read and published, is the act, sentence, judgment, and resolution of the whole court. here the court stood up, as assenting to what the president said. king--will you hear me a word, sir? lord president--sir, you are not to be heard after the sentence. king--no, sir? lord president--no, sir; by your favour, sir. guard, withdraw your prisoner. king--i may speak after the sentence--by your favour, sir, i may speak after the sentence ever. by your favour (hold!) the sentence, sir---- i say, sir, i do---- i am not suffered for to speak: expect what justice other people will have. o yes: all manner of persons that have any thing else to do, are to depart at this time, and to give their attendance in the painted chamber; to which place this court doth forthwith adjourn itself. then the court rose, and the king went with his guard to sir robert cotton's, and from thence to whitehall. footnotes: [ ] john bradshaw ( - ) was the son of a cheshire gentleman. called to the bar in , he practised at congleton till about , when he became judge of the sheriff's court in london, and was enjoying, according to campbell, 'a considerable but obscure practice'; had, according to clarendon, 'a good practice in his chamber, and [was] much employed by the fractious'; and became, according to milton, 'a profound lawyer, an eloquent advocate.' he defended lilburne successfully in . he was made president of the high court for the purpose of this trial, after the position had been declined by whitelock, rolle, st. john, and wilde. after this trial he presided at the trials of the duke of hamilton following on the battle of worcester; and holland, norwich, capel, and owen after the siege of colchester. later on he vigorously opposed cromwell, and accepted a seat in richard cromwell's council of state. he became a commissioner of the great seal in , and died in october of that year. his body was exhumed at the restoration with those of cromwell and others, hung at tyburn, and buried under the gallows. according to a legend perpetuated by an inscription on a cannon, his body was taken to annapolis and buried there. a panegyric was written on him by milton. [ ] john cook acted with bradshaw as one of the counsel defending lilburne in . after the trial, of a scurrilous account of which he was probably the author, he was made master of the hospital of st. cross, and afterwards held various judicial posts in ireland. on the restoration he was tried and executed with the other regicides. [ ] see _post_, p. . [ ] 'this is as the king expressed it; but i suppose he meant answer.'--former edition. [ ] clement walker says: 'whether these breaches and interruptions were made by bradshaw, or are omissions and expunctions of some material parts of the king's speech, which this licensed penman durst not set down, i know not. i hear much of the king's argument is omitted, and much depraved, none but licensed men being suffered to take notes.' [ ] see p. . the regicides before charles ii. left breda to return to england as king; he published a proclamation dated - th april , in which he promised among other things a general pardon for all crimes, to everybody who made submission to the new order of things within forty days, 'excepting only such persons as shall hereafter be excepted by parliament.' accordingly, on the th of july , the matter was discussed in the parliament which recalled the king, and a list of excepted persons was drawn up. the house of lords, as was natural, showed a greater desire for severity than the house of commons, which gave charles an opportunity, of which he was not slow to avail himself, of appearing before the house of lords as an advocate for leniency. the result was that the act of oblivion was passed by the newly elected parliament on th july . the act, which deserves careful study for various reasons, begins by pardoning all crimes committed between st january and th january . there then follow exceptions. these include murders not committed under the authority of the king or parliament, double marriages, witchcraft, and 'any theft or stealing of any goods, or other felonies' committed since th march . but the more important exceptions are contained in three sections, by one of which various persons are excluded from the benefit of the act, while by the other two some of them are not to be executed without the authority of an act of parliament. it is obvious that, as is pointed out by bridgman in tichburne's trial, these sections did not affect the functions of the jury in the trials of any of the named persons. marten, who was in the second category of exceptions, condescended to attempt to defend himself on the ground that his name was harry marten, and the name in the act was henry martin; and cook took a still more technical point of defence on the same subject. in the result the king's conduct in the matter seems generally to have been regarded as lenient, and indeed his character seems to be free from the reproach of cruelty or a desire for vengeance. it is interesting to observe that there was a question of including milton in the list of excepted persons. he was not, however, so included, and as he would otherwise have been subjected to a long term of imprisonment, we must, if we agree with lord campbell in attributing to hale any credit for the composition of _the pilgrim's progress_, consider that charles missed a chance of contributing to the writing of _paradise lost_. * * * * * as a preliminary to the trial a meeting was held to settle certain points of law which it was foreseen would arise. this was attended by all the judges then in office, namely, sir orlando bridgman, chief-baron of the exchequer;[ ] justices foster[ ] and hide of the common pleas;[ ] justice mallet[ ] of the king's bench; together with sir geoffry palmer,[ ] the king's attorney; sir heneage finch,[ ] the king's solicitor; sir edward turner, attorney to the duke of york; mr. wadham windham, of lincoln's inn; and mr. kelyng,[ ] the reporter. it was there resolved to try the prisoners at newgate by commission of gaol delivery, rather than by a special commission of oyer and terminer, so as to proceed with the trial at once; that all the prisoners should be arraigned the first day; that the king's counsel might privately manage the evidence before the grand jury (the practice of allowing any advocates to appear before the grand jury has long fallen into disuse); that the murder of the king should be precisely laid in the indictment, and be made use of as one of the overt acts to prove the compassing of his death; that any act tending to the compassing of the king's death besides the one laid in the indictment might be given in evidence; that the two witnesses required in treason need not speak to the same overt act;[ ] that the fact that a juror had already found another prisoner guilty on the same indictment was no good ground for a challenge; that the prisoners should not be tried in irons; that the murder of the king should be stated to have been committed by _quidam ignotus_, with a visor on his face;[ ] that the compassing of the king's death should be laid to have been committed on the th jan. car. i., and the murder itself on _tricesimo mensis ejusdem januarii_, without naming any year of any king; and that the indictment should conclude '_contra pacem nuper domini regis coron' et dignitat' suas_,' etc.; and other technical matters were settled in the same way. the indictment was in latin, being preferred after michaelmas, until which time english was allowed by the convention which was sitting when the king was restored. the trials began on the th of october , at hick's hall in the county of middlesex, when the grand jury were charged by the lord chief-baron bridgman. true bills were found against thirty-one persons,[ ] a true bill being found against hulet on the th. on the next day thomas harrison[ ] was put up to plead. clerk--thomas harrison, how sayest thou? art thou guilty of the treason whereof thou standest indicted, and art now arraigned? or not guilty? harrison--my lords, have i liberty to speak? court--no more (at this time) than guilty or not guilty. mr. harrison, you have heard the direction before. we can but give you the same rule. if you plead guilty you shall be heard at large; if not guilty, you know what remains. harrison--will you give me leave to give you my answer in my own words? lord chief-baron--there is no answer but what the law directs; it is the same with you as with all others, or as i would desire if i was in your condition. you must plead not guilty, or if you confess guilty, there must be judgment on your confession. harrison--you express your rule very fair, as well to me as to this gentleman (pointing to sir h. waller, who had just pleaded guilty); but i have something to say, which concerns your lordships as well as myself. court--you must hold, and plead guilty or not guilty. harrison--my lord, i have been kept close prisoner near these three months, that nobody might have access to me. do you call me to give you a legal answer, not knowing of my trial till nine of the clock last night, and brought away from the tower to this place at six of the clock this morning? court--you must give your direct answer, guilty, or not guilty. you cannot say it is sudden or unprovided. you spend your time in vain. you trouble the court. you must plead guilty, or not guilty. we must not suffer you to make discourses here. you must plead either guilty or not guilty. clerk--are you guilty, or not guilty? after objecting to plead in this way for a little more time, harrison was at last persuaded to plead not guilty. he then objected to complete the usual formula by saying that he would be tried by god and his country, saying that they were vain words; but eventually-- harrison--i do offer myself to be tried in your own way by god and my country. clerk--god send you a good deliverance. on the next day, the th, at seven o'clock in the morning, harrison's trial began by the calling of the jury, of whom harrison challenged thirty-five, his maximum number. the case was then opened by finch, the solicitor-general, who, after explaining the law of treason by quotations from the bible and coke, charged the prisoner more particularly with having brought the king up to london; with having signed the warrant constituting the court which tried him; with having sat as a member of the court; and with having signed the death-warrant. all the witnesses were then sworn, six in all. _masterson_ proved that he saw harrison sitting 'in that which they called the high court of justice' on the th of january , the day when the king was sentenced; and that when the sentence was read he, with others, stood up as assenting to it. _clark_, _kirk_, and _nutley_ also gave evidence to the same effect; the latter adding that some few days before the th there was a committee in the exchequer chamber of which the prisoner was a member. i do remember well it was in the evening; they were lighting of candles, they were somewhat private. this gentleman was there, i saw him; for through the kindness of mr. phelps, who was then clerk to that committee, i was admitted, pretending first to speak with the said mr. phelps, and that i had some business with him; and so (as i said before) i was admitted into the committee chamber. being there i did observe some passages fall from the prisoner at the bar; the words were to this purpose; he was making a narrative of some discourse that passed between his late majesty and himself in coming between windsor and london, or hurst castle, i know not well which. my lord, that passage that i observed to fall from him in that discourse was this; he said that the king as he sat in the coach with him was importunate to know what they intended to do with him. the king asked, what do they intend to do with me; whether to murder me or no? 'and i said to him, there was no such intent on as to kill him, we have no such thoughts.' but (said he) the lord has reserved you for a public example of justice. there is one word more, my lords, and that is this, which i heard from the prisoner at the bar. the reason and end of their meeting together at that committee was concerning the charge. so much i observed. it was concerning the contracting of the impeachment. i observed that some found fault with the length of that as it was drawn. they were offering some reasons to contract it, and i heard this prisoner at the bar vent this expression; 'gentlemen, it will be good for us to blacken him what we can; pray let us blacken him,' or words to that purpose. i am sure 'blacken' was his word. _lord newburgh_,[ ] when he was living at bagshot, saw harrison conducting the king in custody from hurst castle to london. the two warrants, one for the trial, the other for the execution of the king, were produced, and harrison's signatures to them were proved to be in his handwriting. the court pointed out that they were not produced as records, but as evidence of overt acts of constituting a compassing of the king's death on his part. harrison--i do not come to be denying anything that in my own judgment and conscience i have done or committed, but rather to be bringing it forth to the light. court--sir, you must understand this by the way, this you must take along with you, that these are read not as anything of authority in themselves, or as used to any other purpose, but as evidence of the fact against you; take that along with you. this concluded the evidence; and windham summed up the case very shortly, concluding, 'i think a clearer evidence of a fact can never be given than is for these things,' [here the spectators hummed.] lord chief-baron--gentlemen, this humming is not at all becoming the gravity of this court. let there be free speaking by the prisoner and the court counsel. it is more fitting for a stage-play than for a court of justice. harrison--it is now time, my lords, to offer what i have to say. have these learned gentlemen offered what they have to say? counsel--we have no more till he hath given us occasion, not for evidence of the fact. harrison--my lords, the matter that hath been offered to you, as it was touched, was not a thing done in a corner. i believe the sound of it hath been in most nations. i believe the hearts of some have felt the terrors of that presence of god that was with his servants in those days (however it seemeth good to him to suffer this turn to come on us) and are witnesses that the things were not done in a corner. i have desired, as in the sight of him that searcheth all hearts, whilst this hath been done, to wait, and receive from him convictions upon my own conscience, though i have sought it with tears many a time, and prayers over and over, to that god to whom you and all nations are less than a drop of water in the bucket; and to this moment i have received rather assurance of it, and that the things that have been done as astonishing on the one hand, i do believe ere it be long it will be made known from heaven, there was more from god than men are aware of. i do profess that i would not offer of myself the least injury to the poorest man or woman that goes upon the earth. that i have humbly to offer is this, to your lordships; you know what a contest hath been in these nations for many years. divers of those that sit upon the bench were formerly as active----[ ] court--pray, mr. harrison, do not thus reflect on the court. this is not the business. harrison--i followed not my own judgment; i did what i did, as out of conscience to the lord; for when i found those that were as the apple of mine eye to turn aside, i did loath them, and suffered imprisonment many years. rather than to turn as many did, that did put their hands to this plough, i chose rather to be separated from wife and family than to have compliance with them, though it was said, 'sit thou at my right hand,' and such kind expressions. thus i have given a little poor testimony that i have not been doing things in a corner, or from myself. may be i might be a little mistaken; but i did it all according to the best of my understanding, desiring to make the revealed will of god in his holy scriptures as a guide to me. i humbly conceive that what was done, was done in the name of the parliament of england, that what was done, was done by their power and authority; and i do humbly conceive it is my duty to offer unto you in the beginning that this court, or any court below the high court of parliament, hath no jurisdiction of their actions. here are many learned in the law, and to shorten the work, i desire i may have the help of counsel learned in the laws, that may in this matter give me a little assistance to offer those grounds that the law of the land doth offer. i say, what was done, was done by the authority of the parliament, which was then the supreme authority, and that those that have acted under them are not to be questioned by any power less than them. and for that i conceive there is much out of the laws to be shewed to you and many precedents also in the case. much is to be offered to you in that; according to the laws of the nations, that was a due parliament. those commissions were issued forth, and what was done was done by their power; and whereas it hath been said we did assume and usurp an authority, i say this was done rather in the fear of the lord. court--away with him. know where you are, sir; you are in the assembly of christians; will you make god the author of your treasons and murders? take heed where you are. christians must not hear this. we will allow you to say for your own defence what you can; and we have with a great deal of patience suffered you to sally out, wherein you have not gone about so much for extenuation of your crimes, as to justify them, to fall upon others, and to blaspheme god, and commit a new treason: for your having of counsel, this is the reason for allowing of counsel: when a man would plead any thing, because he would plead it in formality, counsel is allowed. but you must first say in what the matter shall be, and then you shall have the court's answer. lord finch--though my lords here have been pleased to give you a great latitute, this must not be suffered, that you should run into these damnable excursions, to make god the author of this damnable treason committed. _harrison_ repeats his two points; that what was done was done by a 'parliament of england, by the commons of england assembled in parliament'; and was therefore not to be questioned by the present court; and that what any did in obedience to a power which they could not disobey, they ought not to be punished for. upon these two points he asked to be allowed the assistance of counsel. to this the lord chief-baron replies that the body harrison refers to was not a parliament, that harrison had made himself 'a solicitor in the business,' when he said, 'come let us blacken him as much as we can'; and that 'neither both houses of parliament, if they had been there, not any single person, community, not the people collectively, or representatively, had any colour to have any coercive power over their king.' annesley--who had, as he says, been one of the 'corrupt majority,' put out of the house at the time of pride's purge--and hollis repeat the same thing. an argument then ensues between harrison and the other members of the court on the authority of parliaments generally; at last-- harrison--i would not willingly speak to offend any man, but i know god is no respecter of persons. his setting up his standard against the people---- court--truly, mr. harrison, this must not be suffered; this doth not at all belong to you. harrison--under favour, this doth belong to me. i would have abhorred to have brought him to account, had not the blood of englishmen that had been shed---- counsel--methinks he should be sent to bedlam, till he comes to the gallows to render an account of this. this must not be suffered. solicitor-general--my lords, i pray that the jury may go together upon the evidence. sir edward turner--my lords, this man hath the plague all over him, it is a pity any should stand near him, for he will infect them. let us say to him as they used to write over an house infected, 'the lord have mercy upon him,' and so let the officer take him away. the argument then continues a little longer, chiefly between harrison and the lord chief-baron; till-- lord chief-baron--mr. harrison, you have appealed to our consciences. we shall do that, which, by the blessing of god, shall be just; for which we shall answer before the tribunal of god. pray take heed of an obdurate, hard heart and seared conscience. harrison--my lords, i have been kept six months a close prisoner, and could not prepare myself for this trial by counsel. i have got here some acts of parliament, of that house of commons, which your lordship will not own; and the proceedings of that house, whose authority i did own. the lord chief-baron then summed up shortly, and the jury brought in a verdict of guilty, apparently without much hesitation. sentence of dragging, hanging, and quartering was accordingly passed in the ordinary terms. hugh peters[ ] hugh peters was called upon to plead on the th of october . clerk--hugh peters, hold up thy hand. how sayest thou? art thou guilty of the treason whereof thou standest indicted; and for which thou standest arraigned? or not guilty? hugh peters--i would not for ten thousand worlds say i am guilty. i am not guilty. clerk--how will you be tried? hugh peters--by the word of god [here the people laughed]. court--you must say by god and the country. tell him, you that stand by him, what he should say, if he doth not know. clerk--how will you be tried? hugh peters--by god and the country. the trial took place on the th of october, and after the jury were sworn, without peters making any challenges, the case was shortly opened by sir edward young. he stated that he would prove that peters was a chief conspirator with cromwell at several times and several places compassing the king's death; that he preached many sermons to the soldiers urging the 'taking away the king,' comparing him to barabbas; that he was instrumental in directing the making of the proclamation for the high court of justice; that when the king was executed, he was the person that urged the soldiers below the scaffold to cry for justice; and that on the day after the trial he commended it. _dr. william young_ was the first witness. he first made peters' acquaintance about the time of the siege of pembroke castle, in . afterwards, in , peters went over to ireland with cromwell, and falling sick of the flux, returned to milford and sent for the witness. there i found him, grovelling upon the deck, and sick he was indeed; with much difficulty we got him on shore; within a very few days, to the best of my remembrance five days, i perfected his cure; we became very familiar; i observed in him that he had some secret thoughts that i could not well discover, neither well understand; whereupon i thought it might tend to my security that i should so much sympathize with him, to get within him to know his intentions. after some weeks we grew so familiar, that at last i found he began to enlarge his heart to me. many times i should hear him rail most insufferably against the blood royal, not only against our martyred king, but against his off-spring; still as we continued our acquaintance, he became more and more open to me; so we would sit up discoursing till about twelve or one of the clock at night very often, about these unhappy wars late in england. he said that he had been employed out of new england to stir up the civil war; that he had been sent by the parliament to ireland 'to receive further instructions to drive on the design to extirpate monarchy'; that he had spent a great deal of his money, but had never been repaid the £ or £ he had been promised for his journey; he used to vilify monarchy, 'jocundarily scoffing at it, and would ordinarily quibble in this manner, saying "this commonwealth will never be at peace till be put down." i asked him what this was, he told me the three l's, and afterwards interpreted the meaning to be the lords, the levites, and the lawyers; with that, said i, we shall be like the switzers, tinkers, and traitors,' he had a commission from cromwell to raise troops for ireland, he issued two commissions to bring over two troops from devon, and offered to make the witness a major or captain. talking of the removal of the king from holmby house, he said that the parliament having then a design to secure himself and cromwell, they escaped out of london, and rode hard for it, and as we rode to ware we made a halt, and advised how we should settle this kingdom in peace, and dispose of the king; the result was this, they should bring him to justice, try him for his life, and cut off his head; whether this was the expression of cromwell i cannot tell; but to the utmost of my remembrance, and i am mistaken if it was not the advice of mr. peters to cromwell; and i believe it, because his former relations of his instructions out of ireland did tend to that effect. peters--my lord, i desire to speak a word [his voice being low, he was brought to the second bar]. i am the bolder to speak to your lordships at this time a word, and it is high time to satisfy my conscience; if these things were true, there is enough said to destroy me; i desire leave to tell you what offence i take at the witness, thus, my lord. this gentlemen i do know---- counsel--what say you to him? peters--that which i have to say is this, that in his story he hath told that which is not true; but i will not find fault with him, because he was my host, i will not reflect and recriminate: i shall give your lordships in simplicity as much satisfaction myself as any witness; this i say to the man that speaks, and this is certain, i did spend some time at this gentleman's house, he is called there dr. young; and my trouble at this discourse is this, i do not know, my lord, that i found a more violent man for the parliament than himself; so far he undertook to be a spy on one side; this i find to be so, he will not deny it; he was very fierce in that way; i think words of such a man ought to be little attended to. the second is this, this gentleman is not a competent witness, and that upon a two-fold ground. first, because i know he is under a very great temptation and trouble in this very thing, and it is upon this account he was put out of his living in the country, and here he came to me to help him in again, and was very highly offended because i did not do it. secondly, it is not that i would invalidate his witness, but give me leave to tell you, it is his way to snap and catch at every man, which is the complaint of the people in his own country. i know that same which is spoken is false; i speak it in the presence of god, i profess, i never had any near converse with oliver cromwell about such things; i speak this to the jury, that they would have a care of the witness; i was in sickness then; those that have known me do know likewise that i have much weakness in my head when i am sick, and to take words that are spoken in a sick condition, he ought not to do it; for the words themselves i do here profess against them, for the generality of them; and that he hath been freer in my judgment in any communication in this way than i have been; it is marvellous, here i profess the things untruths; i call god and angels to witness they are not true. i will give you an account of my whole condition by-and-by, if i may be heard. court--you shall be heard at large; that which you have been heard now is concerning the competency or incompetency of the witness: the incompetency against him is this, that when you came thither none more violent for the parliament than himself, and that he was a great spy, and you say it was usual with him to take such courses; these are but words; if you have any witnesses we will hear them; the man may be traduced and slandered, and so all witnesses may be taken away. mr. peters, if you take this course, god knows when this business will end; if you have a mind take pen, ink, and paper, and take notes of the witnesses, and make exceptions to them one after another; but interrupting one, and so another, we shall never have done. young--i do recollect myself of some other conferences between us; as to my being malicious, i know he never did me any wrong, and therefore i cannot be malicious; and as for my reputation, having resided two years in london i can have certificates both from my country, and some of this city, to vindicate me in that particular; but, my lord, that which i would inform your lordship is this, he told me he took duke hamilton a prisoner himself in his own chamber, seized on his goods, and took his george and blue ribbon off his shoulder, and the george he shewed me. _william gunter_ was a drawer at the star in coleman street. oliver cromwell and several of his party used to meet there in consultation; there were several meetings; he remembered one in particular when peters was there; he came about four in the afternoon and stayed till ten or eleven at night; they were talking about the king after he was a prisoner, for they called him by the name of charles stuart; they were writing something, but the witness could not say what. he could not say whether peters was there oftener than once, 'but once i am certain of it; this is the gentleman; for then he wore a great sword.' peters--i never wore a great sword in my life. _starkey_ deposed that in the december before the king's death, and up to the th of the following january, the headquarters of the army were at windsor, and general ireton was quartered at his father's house. the council of war was held there, and cromwell, ireton, peters, col. rich, and another gentleman, whose name he forgot, would meet and consult there, and sit up till two or three in the morning very privately together. the witness was often in ireton's company, and peters would often come in to meals in the evening. mr. ireton being civil in carriage, would usually entertain discourses with mr. peters, likewise would favor me sometimes with discourse; and in that discourse i did many times take occasion to assert the laws in point of the king; and discoursing about the king as being a capital instrument in the late inconveniences, as they called it, in the times of the war, mr. ireton would discourse this ordinarily; i was bold to tell them that the person of the king was _solutus legibus_; this gentleman the prisoner at the bar, told me it was an unequal law. i did observe mr. peters did bend his discourse, not by way of argument only, but in point of resolution of judgment, fully against the person and government of the king. i remember some of his expressions were these, that he was a tyrant, that he was a fool, that he was not fit to be a king, or bear that office; i have heard him say, that for the office itself (in those very words which shortly after came into print) that it was a dangerous, chargeable, and useless office. my lords, the constant discourse of this gentleman at that time was such as he did believe would never be called into question, so it was not a thing that a man was necessitated to observe by an accident, but it was their whole discourse. i will put you in mind of a particular passage. when the news came to windsor that the king was in prison at the isle of wight, my father (whose house that was) was very much troubled at it; and being an ancient man, was not able to control his passions with reason, told my mother that they (meaning mr. ireton, etc.) should have no entertainment there, and took the key of the cellar and put it in his pocket; his passions being lessened, mr. ireton, his wife, and another officer being at supper, and afterwards my father said grace, and, as he usually did, though they were there, he said that usual and honest expression, praying for the king in these usual words, 'god save the king, prince, and realm'; sometimes they did laugh at it, but never did reflect upon him; but this night he made this expression, 'god save the king's most excellent majesty, and preserve him out of the hands of all his enemies.' peters, who was then at the table, turns about to him, and said, 'old gentleman, your idol will not stand long'; i do conceive he meant it of the king. for a matter of two months of the constant residence and being of the army there, i did observe that in the general council there, and in this private cabal (after the business was broke out, and when the king was taken prisoner, and carried to windsor), mr. peters was the constant man; and when the business broke out, i looked upon it in reason that cromwell, ireton, and this gentleman at the bar, and rich, and that other gentleman, whose name i have forgot, that they were the persons that did the business. my lords, mr. peters he continued at windsor: i remember very well that after the body of the army, the general, and the officers of the army, were gone to london, he continued at windsor: i remember a passage of one bacon, who was a sectary; mr. peters being in discourse of the king, mr. bacon took great distaste at mr. peters for some affront put upon the king; mr. peters falls upon him, and rails at him, and was ready to beat him; we understood it so, because he did tell him of his affronting the king. counsel--mr. peters, if you have any thing to ask this witness, you may. peters--i have many things to ask him. did i ever lie there? starkey--no. peters--did you see me there at three o'clock in the morning? starkey--i have seen you go up at ten o'clock at night to mr. ireton's chamber, and sometimes i understood you did not go away till four o'clock in the morning: i went to bed it is true, but i understood it so. _thomas walkely_ saw cromwell, goodwin, peters, and others in the painted chamber at westminster on the day after the proclamation for the trial of the king was made. goodwin sat in the middle of the table and made a long speech or prayer, and then it was ordered that strangers should leave the room, and walkely went out, and afterwards saw peters leave the room with the others. when the king was brought to london as a prisoner, walkely 'saw his majesty in his coach with six horses and peters, like a bishop almoner, riding before the king triumphing.' _proctor_ also saw the king driving into london with the prisoner riding before him, the king sitting alone in his coach. 'my lord, i did put off my hat, and he was graciously pleased to put off his hat; the troopers seeing this, they threw me into the ditch, horse and all, where i stayed till they pass by, and was glad i escaped so.' _hardwick_ heard the proclamation for the high court of justice made in westminster hall, and afterwards peters came into palace yard and told the officers there that the proclamation must also be made in cheapside and at the old exchange. _holland simpson_ saw the sitting of the high court; he saw peters there, but not as a judge. there was one day in the hall colonel stubbards, who was adjutant-general (he was a very busy man) and colonel axtel; mr. peters going down the stairs, comes to him, and bids stubbards to command the soldiers to cry out 'justice, justice, against the traitor at the bar.' counsel--who did he mean? simpson--the king was at the bar at the same time; whereupon, my lord, the soldiers did cry out upon the same; and as the king was taken away to sir robert cotton's some of them spit in the king's face, but he took his handkerchief, wiped it off, and smiled. _thomas richardson_ and _sir jeremy whichcot_ spoke to casual expressions of peters which showed approval of the king's trial and deposition. _richard nunnelly, sworn._ counsel--was peters upon the scaffold at the time of execution or before? nunnelly--on that unhappy day, th of jan. , this hugh peters came an hour before the king came to whitehall; i came with a warrant of a £ or £ , to oliver cromwell, being door-keeper to the committee of the army; nunnelly, says oliver cromwell, will you go to whitehall? surely you will see the beheading of the king; and he let me into whitehall; coming into the boarded gallery i met hugh peters, and he was in the gallery; and then i got with hugh peters into the banqueting-house; being there, hugh peters met one tench of hounsditch, that was a joiner meeting him; he speaks to him, and whispers in his ear, and told him somewhat, i do not know what it was; but tench presently went and knocked four staples upon the scaffold; i meeting tench again, what art thou doing? said i. what, will you turn hangman? says he, this day will be a happy day. said i, pray god send it be not a bloody day; upon that hugh peters went upon the scaffold just an hour before the king came, and then he went off again. i watched at the window when the king's head was cut off, and afterwards i saw the vizards going into a chamber there; about an hour afterwards (i staying there at the door) there comes hugh peters in his black cloak and broad hat out of that chamber (as i take it) with the hangman; i am sure i did see him go along with the hangman to take water; this is all i can remember, it being many years since. peters--i humbly beg i may be heard in this case; i have here a witness, and i desire he may be examined; it is noised i was upon the scaffold, i here call god to witness i was not out of my chamber that day; i was sick that day; i speak in the presence of the lord. court--if your witness will stay he shall be heard; there are more witnesses to the same thing, and so he may speak to all together. _dr. mortimer, sworn._ mortimer--me lar, me ha serd de king, etc. court--we cannot understand a word. counsel--he is a frenchman, my lord. court--pray let there be an interpreter. [one mr. young was sworn to interpret truly his evidence. but it being afterwards found difficult and troublesome, the counsel waved his evidence, and prayed another witness might be called.] mortimer--me lar, me can peak englis---- counsel--no, no, pray sit down, we will examine other witnesses. call stephen clough. _stephen clough_ heard there was to be a meeting of the council of officers at westminster, about three weeks or a month before the king's execution, and i being willing (my lord) to hear what their consultations were, i went thither, and was there as one of them (but i was not one); amongst the rest hugh peters was one; when the room was pretty full the door was shut. mr. peters was desired to call for a blessing upon their business; in his prayer he uttered these words, 'o lord (said he) what a mercy it is to see this great city fall down before us! and what a stir there is to bring this great man to trial, without whose blood he will turn us all into blood if he reign again!' _beaver_, upon the day appointed for a fast for those that sat then as a parliament, went to westminster to find out some company to dine with me, and having walked about an hour in westminster hall, and finding none of my friends to dine with me, i went to that place called heaven, and dined there. after he had dined he went through st. margaret's churchyard, and finding it all full of muskets and pikes, asked some soldiers what was their business there. they told him that peters was preaching in the church, and 'i must needs have the curiosity to hear that man, having heard many stories of the manner of his preaching (god knows i did not do it out of any manner of devotion); i crowded near the pulpit, and came near to the speaker's pew.' he heard peters preaching on the text about the jews releasing barabbas and crucifying christ; interpreting barabbas to mean the king, and christ the army. says he, and because that you should think, my lords and gentlemen, that it is a question, i tell you it is a question; i have been in the city which may very well be compared to hierusalem in this conjuncture of time, and i profess these foolish citizens for a little trading and profit, they will have christ (pointing to the redcoats on the pulpit stairs) crucified, and the great barabbas at westminster released. he told the members that they were the sanhedrim, and that it was they to whom the people looked for justice-- do not prefer the great barabbas, murderer, tyrant, and traitor, before these poor hearts (pointing to the redcoats) and the army who are our saviours. it was proved by the journal of the house of commons that a fast had been ordered for the th of december . _chace_ had heard peters preaching on the st of january; his text was, 'bind your kings with chains, and your nobles with fetters of iron.' he maintained that the king was not above the law. it was said they had no power to behead the king; 'turn to your bibles,' he answered, 'and you shall find it there, whosoever sheds man's blood, by man shall his blood be shed; and i see neither king charles, prince charles, nor prince rupert, nor prince maurice, nor any of that rabble excepted out of it.' peters--ask him if he took notes. chace--no sir, but it being so memorable a sermon i took special notice of it; i came to my brother's house in shoe lane, and told him; said i, brother, i have been at whitehall and have heard the most execrable business that ever was in the world by a minister of the gospel, and told him the words, and i observed that oliver cromwell did laugh at that time when you were preaching. _tongue_, _bowdler_, _rider_, and _walker_ all gave similar evidence as to peters' preaching. _cornelius glover_ was called by peters, but was not sworn. he was peters' servant at the time of the king's execution; on the morning of that day peters was ill in his chamber. i had a desire to go to see the meeting where they were at whitehall; saith he, 'thou seemest to have a great desire to go and look about thee, it is very sad, but if you will go you may.' i did go over the park. he went about noon, the soldiers and people filled the place, and he went back in a quarter of an hour's time. when he got back, peters was still in his chamber. he was melancholy sick, as he used to be. lord chief-baron--did you desire to go, or did he send you? glover--i did desire to go, being newly come to london. _peters_ was then called on to make his defence. he began by pointing out that he had nothing to do with the beginning of the war. i lived fourteen years out of england, when i came over i found the wars begun; i began no war, my lord, nor have been the trumpeter; when i came out of the west indies i fled from the war into ireland, to the western parts there. i was neither at edge-hill nor naseby; but my lord, after i came over there was war that the people were engaged in; i was not here in the beginning of it, but was a stranger to the carriage of it. when i came into the nation i looked after three things; one was that there might be sound religion; the second was that learning and laws might be maintained; the third that the poor might be cared for; and i must confess i have spent most of my time in these things to this end and purpose. he explains how he acted for these ends in ireland, and how, being sent over to england, 'that we might have a little help in point of excise and customs,' he saw the state of the country, and in some measure i did stir, but by strong importunities, the ministers of london deeper than i; i am very sorry to hear of my carriage towards the king; it is my great trouble; i beg pardon for my own folly and weakness; i thought god had a great controversy with the nation, and the lord was displeased on all hands; that which some people took to, i did take unto; i went into the army; i saw at the beginning of it that corruptions grew among them.... i had neither malice nor mischief in my heart against the king; upon this i did engage so far, being invited; i went into the wars, and there i found very strange and several kinds of providences, as this day hath been seen; i do not deny but that i was active, but not to stir in a way that was not honourable. i had so much respect for his majesty, particularly at windsor, that i propounded to his majesty my thoughts, three ways to preserve himself from danger, which were good as he was pleased to think though they did not succeed, and the work died; as for malice i had none in me; i have not persecuted with malice, i will only take off malice. the _lord chief-baron_ reminded him that the business was a matter of fact, and shortly recapitulated the evidence against him. consulting about the king's death; proposing or determining that he should die; making seditious speeches, in the pulpit or out of it, would all be overt acts proving treasonable intention. his conversations with dr. young at milford, his meetings with cromwell and others at the star, his participation in the councils held at starkey's house at windsor, all proved the consulting and proposing. his presence at the meeting in the painted chamber; his riding in front of the king when he was brought to london (which peters interrupted to explain that he did by the king's command that he might procure the bishop of london to come to him); the part he took in ordering the reading the proclamation about the high court, which peters denied; his telling the soldiers to cry out justice, justice; his presence at the scaffold before the execution [_peters_--'i do not profess to your lordship, before angels and men, that i did not stir out of my chamber that day.' _lord chief-baron_--'counsel doth not put reliance upon that because of what your witness saith, though his evidence is not satisfactory']; his prayers and his sermons all go to complete the case. when peters objects that some of the witnesses to the sermons are but single witnesses, the judge expressly lays it down that the two witnesses required need not both speak to the same overt act. the solicitor then notices the main facts of the case in a still more abbreviated form, concluding: the honour of the pulpit is to be vindicated; and the death of this man will preach much better than his life did; it may be a means to convert many a miserable person, whom the preaching of this person hath seduced; for many come here and say they did it 'in the fear of the lord'; and now you see who taught them; and i hope you will make an example of this carnal prophet. the jury after a little consultation found the prisoner guilty; and he was forthwith sentenced to death in the usual terms. william hulet william hulet was arraigned on the th of october, and tried on the same day. he challenged no jurors, and refused pen and ink because he could not write; but as he had not well understood the indictment he desired it to be read over again, which was done. sir edward turner opened the case, alleging that hulet was on the scaffold, in disguise, on the occasion of the execution, and suggesting that it was he who actually beheaded the king; a fact which he proposed to prove chiefly by hulet's own admissions. _gittens_ was the first witness. he stated that he and hulet were both serjeants in the same regiment at the time of the execution. a day or two before the king came to the scaffold about thirty-eight of them were sworn to secrecy by colonel hewson, and they were all asked whether they would behead the king for a hundred pounds, and a promise of preferment in the army. they all refused. at the time of the execution it seems that part of the regiment was on guard in scotland yard, and part in the banqueting chamber and on the scaffold. the witness was with the former part, but managed to get near the scaffold before the execution actually happened. 'hulet (as far as i can guess), when the king came on the scaffold for his execution, and said, executioner, is the block fast? fell on his knees.' counsel--who did? gittens--hulet, to ask him forgiveness; by his speech i thought it was he. captain atkins said, who would not undertake to do this fact? i told him i would not do it for all the city of london; no, nor i neither for all the world, saith atkins; you shall see hulet quickly come to preferment; and presently after he was made captain-lieutenant. counsel--was he with his regiment that day? gittens--we could not see him with the regiment all that day; he was never absent at any time before. counsel--did you know his voice? gittens--yes, sir. he had a pair of freeze trunk breeches, and a vizor, with a grey beard; and after that time col. hewson called him 'father grey beard' and most of the army besides, he cannot deny it. in cross-examination gittens repeated that he knew hulet by his voice, and that he was by captain webb at the door of the banqueting house. _stammers_ was afterwards in hewson's troop when hulet was captain-lieutenant, and marched at his orders to luttrels-town; there hulet questioned him as to his previous service, and asked whether he had ever served in the king's army: 'with that he walks about the room two or three turns; saith he, i was the man that beheaded king charles, and for doing it i had an hundred pounds, saying i was a serjeant at that time.' cross-examined, he said that he had been in the troop about a fortnight; and that when he first saw hulet he pretended that he was brother to one chambers. hulet said that his evidence did not agree with that which he had given in his examination at dublin, and desired that the latter might be read; which was done, and it agreed with the testimony he had just given. _toogood_ was in dublin in , about september; he had some business with hewson, where he saw hulet, and observed that he was very familiar. i asked hewson what he was, he told me he was his captain-lieutenant of horse; i desired to know where he had him? he told me he made him so from a serjeant, and a very mettled fellow he was; it was he that did the king's business for him upon the scaffold. in there was a disbanding of the army in ireland; this gentleman was then continued captain-lieutenant in pretty's regiment; i discoursed with pretty concerning him, and one part of it, i remember, was about the king's death; and he did tell me that he was assured by col. hewson that hulet either cut off the king's head, or held it up, and said, 'behold the head of a traitor.' col. pretty could not tell me which of the two it was; but i saw the person that did it, and methought he did resemble this person. twelve months afterwards he came to live near the prisoner in ireland, and meeting him at the white horse in carlow, asked whether he was the man that cut off the king's head or not. saith he, why do you ask me this question? i told him i had heard so by several, namely by hewson and pretty; upon that he said, 'well, what i did, i will not be ashamed of; if it were to do again i would do it.' once since that time, about half a year afterwards, i was in the same place, and there talking about the king's death, he was telling me it was true, he was one of the two persons that were disguised upon the scaffold. i desired to know what if the king had refused to submit to the block? saith he, there were staples placed about the scaffold, and i had that about me that would have compelled him, or words to that effect; other times i have heard him speak something to this ... i have observed in ireland, that it hath been generally reported that he was either the man that cut off the king's head or he that held it up, as i said before, and i have heard them sometimes call him grandsire greybeard. _walter davis_ had two years before been drinking with hulet in dublin, and said i to hulet, i pray resolve me this one question; it is reported that you took up the king's head, and said, behold the head of a traitor; sir, said he, it is a question i never yet resolved any man, though often demanded; yet, saith he, whosoever said it, it matters not, i say it now; it was the head of a traitor. _lieut.-colonel nelson_ had asked colonel axtell (who had just been tried and condemned) who were the two disguised persons on the scaffold. he told me i knew the persons as well as himself; saith he, they have been on service with you many a time; pray, sir, said i, let me know their names? truly, said he, we would not employ persons of low spirits that we did not know, and therefore we pitched upon two stout fellows. who were those? said i. it was walker and hulet, they were both serjeants in kent when you were there, and stout men. who gave the blow? said i. saith he, poor walker, and hulet took up the head; pray, said i, what reward had they? i am not certain whether they had thirty pounds apiece or thirty pounds between them. _col. thompson_ and _benjamin francis_ both saw the execution, and said that it was a man disguised in a light wig that cut off the king's head. hulet said he could bring thirty or forty witnesses to prove that some one else did the act, and others to prove that he was not there on that day; he also produced a paper of examinations taken before the lord mayor, being of mary brandon and others. he was reminded that he had been examined in the tower, and admitted that he was then charged with cutting off the king's head. 'then,' said the chief-baron, 'you had time to provide your witnesses,' to which hulet replied that he had been a close prisoner since then. he further said that he had been a prisoner, together with six or eight others, on the day of the execution; they were imprisoned because they refused to be on the scaffold. hulet wished to call hacker, huncks, and phayre, but the court pointed out that hacker had already been tried for his life (and condemned), and that phayre was a prisoner in the tower. huncks had been called as a witness against axtell. hulet then called a _sheriff's officer_, who said that he had been told by one of his fellow-officers that he was in rosemary lane a little while after the execution of the king, drinking with the hangman [_i.e._ george brandon], that he did urge him whether he did this fact; god forgive me, saith he, the hangman, i did it, and i had forty half-crowns for my pains. abraham smith--my lord, as soon as that fatal blow was given i was walking about whitehall, down came a file of musketeers; the first word they said was, where be the bargemen? answer was made, here are none; away they directed the hangman in my boat; going into the boat he gave one of the soldiers a half-crown. said the soldiers--waterman, away with him, be gone quickly; but i fearing this hangman had cut off the king's head, i trembled that he should come into my boat, but dared not examine him on shore for fear of the soldiers; so i launched out, and having got a little way in the water, said i, who the devil have i got in my boat? says my fellow, says he, why? i directed my speech to him, saying, are you the hangman that cut off the king's head? no, as i am a sinner to god, saith he, not i; he shook every joint of him; i knew not what to do; i rowed away a little further, and fell to a new examination of him, when i had got him a little further, tell me true, said i, are you the hangman that cut off the king's head? i cannot carry you, said i; no, said he, i was fetched by a troop of horse, and i was kept a close prisoner at whitehall, and truly i did not do it; i was kept a close prisoner all the while; but they had my instruments. i said i would sink the boat if he would not tell me true; but he denied it with several protestations. william cox--when my lord capel, duke of hamilton, and the earl of holland were beheaded in palace yard in westminster,[ ] my lord capel asked the common hangman, saith he, did you cut off my master's head? yes, saith he. where is the instrument that did it? he then brought the ax. this is the same ax. are you sure? saith my lord. yes, my lord, saith the hangman, i am very sure it is the same. my lord capel took the ax, and kissed it, and gave him five pieces of gold. i heard him say, sirrah, wert thou not afraid? saith the hangman, they made me cut it off, and i had thirty pounds for my pains. _richard abell_ heard one gregory confess that he cut off the king's head. the lord chief-baron then asked hulet whether he wished for any further time to examine into the truth of the matter; but on his saying that he needed a fortnight for the purpose the trial was proceeded with at once. a stranger--my lord, i was with my master in the company of brandon the hangman, and my master asked brandon whether he cut off the king's head or no? he confessed in my presence that he did cut off the king's head. the lord chief-baron then summed up the case, briefly repeating the substance of the evidence. he pointed out that the evidence went two ways, meaning apparently that hulet either cut off the king's head, or held it up after it was cut off, and whichever he did, the jury ought to find him guilty. he concluded by telling them that they were not to consider what was said of the prisoner by another unless it was corroborated by what the prisoner said. after a more than ordinary time of consideration the jury returned to their places, and found the prisoner guilty. hulet was brought up for sentence on the th of october, and sentenced to death in the usual way, with other prisoners. at the same time he was informed that his execution would be delayed in order that the king's pleasure might be known. he was eventually reprieved.[ ] footnotes: [ ] sir orlando bridgman ( - ) was the eldest son of the bishop of chester. he entered queens college, cambridge, in ; became a fellow of magdalene in , and was called to the bar in . he became chief-justice of chester in , and solicitor-general to the prince of wales in . he sat in the long parliament as a royalist, and in the oxford parliament in . he was one of the king's commissioners at the uxbridge negotiations in - . he ceased appearing in court under the commonwealth, but enjoyed a considerable practice as a conveyancer, at that period a very profitable branch of the profession. at the restoration he was made a serjeant, chief-baron of the exchequer, and a baronet. after this trial he became chief-justice of the common pleas. on the disgrace of clarendon he became lord keeper in , a position in which he did not add to his fame as a lawyer. according to north, he was both ignorant and weak; 'and what was worst of all, his family were very ill qualified for that place; his lady being a most violent intriguess in business, and his sons kept no good decorum whilst they practised under him.' he avoided the political intrigues of the time; he was kept in ignorance of the treaty of dover, and refused to let the declaration of indulgence pass the great seal in its original state in . finally, when charles declared the exchequer closed for twelve months he refused to grant an injunction to protect the bankers who were likely to be ruined. he was accordingly removed from office in november , and was succeeded by lord shaftesbury. [ ] sir robert foster ( - ), the youngest son of a judge of the common pleas, was called to the bar in . he supported charles i.'s most tyrannical proceedings, and became a justice of the common pleas in . he followed charles to oxford, and attempted to hold his court there. he was removed from his office by the parliament, and practised as a conveyancer during the commonwealth. he was at once restored to his office at the restoration. after this trial, he was, in the dearth of good lawyers who were also royalists, made lord chief-justice. he presided at the trial of sir harry vane the younger, who was convicted of treason in compassing the death of charles ii., his real offence being the part he took against strafford; and was instrumental in inducing the king to sign his death-warrant in breach of the act of indemnity. in other trials of political opponents he acquired the reputation of a partisan judge. [ ] sir robert hide ( - ) was cousin to lord clarendon. he was called to the bar in , and became recorder of salisbury in . he sat as a royalist in the long parliament, and joined the king at oxford. he was committed to the tower in and , and deprived of his recordership. he was made a justice of the common pleas in , and lord chief-justice on foster's death, through his cousin's influence. he was celebrated for his trials of seditious printers, and died in court as he was about to begin the trial of one of them. [ ] sir thomas mallet ( - ) came of a legal family, and was called to the bar in . he sat in charles i.'s first two parliaments, and was made a justice of the king's bench in . he came into opposition to parliament by opposing their measures in relation to the book of common prayer and the militia, and was twice imprisoned by them and fined. he was replaced on the bench at the restoration, at the age of seventy-eight, but retired in . [ ] sir geoffrey palmer ( - ) was called to the bar in , sat in the long parliament, was one of the managers of strafford's impeachment, but rallied to the king's side on the passing of the act perpetuating parliament in . he voted against hampden's motion for printing the remonstrance in november , and was committed to the tower. he withdrew from the house after the passing of the militia ordinance, and sat in the parliament at oxford. he was one of the king's representatives at the uxbridge negotiations, - , and was committed to the tower in . he became attorney-general at the restoration, and so remained till his death. [ ] see vol. ii. p. . [ ] sir john kelyng was the son of a barrister, and was called to the bar in - . he practised for a short time in the oppressive forest courts, attempted to present some persons at the hertford quarter sessions in , for what he held to be unlawful drilling under the militia ordinance, and was in consequence committed to windsor castle till . he was released at the restoration, and was called upon to supply the place of the king's serjeant, glanville, at this trial. he was afterwards knighted, and entered parliament, where he was employed in drafting the act of uniformity. as to his connection with the trial of the bury st. edmunds witches, see _post_, pp. , . he took a prominent part in vane's trial, and was made a puisne judge in . he was appointed to succeed hyde as lord chief-justice in , after the post had been vacant seven months. he was said to owe his place to corrupt dealings with clarendon, or to the favour of lady castlemaine, but this is doubted by campbell, who otherwise takes a most unfavourable view of his career. his subsequent conduct on the bench was such that, though he never presided at any trials of great importance, a petition against him was considered in the house of commons, and a committee reported most unfavourably on his behaviour. he made his peace with the house, but sank into insignificance, and died in , still in office. [ ] see vol. ii. pp. , . [ ] it does not appear whether any difference was made in hulet's case. [ ] the regicides actually tried were sir hardress waller, colonel thomas harrison, william hevingham, isaac pennington, henry martin, gilbert millington, robert tichburne, owen roe, robert lilburne, adrian scroop, john carew, john jones, thomas scot, gregory clement, john cook, george fleetwood, simon meyn, james temple, peter temple, thomas wait, hugh peters, francis hacker, daniel axtell, william hulet, henry smith, edmund harvey, john downes, vincent potter, and augustin garland. they were all convicted. of these there were executed--thomas harrison, john carew, john cook, thomas scot, hugh peters, gregory clement, john jones, daniel axtell, francis hacker, adrian scroop. [ ] thomas harrison ( - ) was born in staffordshire of lowly origin. he is said to have enlisted in essex's life guard, which was the corps used for the purpose of training officers for the parliamentary army, in . in he was serving in fleetwood's regiment in manchester's army. he was present at the battles of marston moor and naseby, and at the captures of winchester, basing house, and oxford. he entered parliament in , and represented the army in their quarrels with parliament. he served with distinction in the second civil war, and was zealous in bringing the king to trial and condemning him to death. he conducted the pursuit of the royalists after the battle of worcester, and, continuing to represent the extreme military party, was a party to pride's purge. he was a prominent member of the barebones parliament, but after its extinction ceased to exercise any political influence. he refused to recognise the government in , and was deprived of his commission. he was afterwards imprisoned on various occasions on suspicion of a connection with anabaptist and other plots; but at the restoration refused to pledge himself not to disturb the government or to save himself by flight. the fifth-monarchy men professed to look forward to his resurrection to judge his judges and to restore the kingdom of saints. [ ] sir james livingstone was descended from the livingstones of callendar. he became a gentleman of the bedchamber to charles, and was made viscount of newburgh in . the king was to have escaped from his house at bagshot on the occasion referred to above, on one of his horses, reputed to be the fastest in england, but owing to the horse falling lame, and the strictness of the watch kept on the king, the scheme failed. after the king's execution he fled to the hague, but returned to scotland in . he accompanied charles ii. to england in , and after the battle of worcester fled to france. at the restoration he was made captain of the guard and an earl. in he, with others, received a licence to dig coal in windsor forest. he died in . [ ] the court included albemarle, manchester, and denzil hollis. [ ] hugh peters ( - ) graduated at trinity college, cambridge, in - . he was ordained in london, and at once made his mark as a preacher, but being suspected of heresy, went to holland about . there he inclined to independency, and through the pressure put on the dutch by the english government, found it advisable to sail for boston, where he arrived in october . there he took a prominent part in local affairs, upholding clerical influence against vane. in peters came to england to ask for assistance for the colony, and became chaplain to the forces in ireland. returning to england, he became famous as a military preacher, preaching exhortatory sermons before assaults on fortified places, and attracting adherents to the parliamentary forces. he also acted as the confidential agent of fairfax and cromwell in dealing with their troops, and chronicled their victories. he was regarded with great aversion by the presbyterians, and by the numerous persons of other sects to whom buffoonery in the pulpit was distasteful. he upheld the army against the parliament, and was credited with a share in drawing up the army remonstrance in . he was in ireland in , and was present at the taking of wexford. he afterwards continued to occupy an influential position in politics, and indulged in many unpolitical schemes, particularly the reformation of the law, of which he knew but little, and the improvement of religious teaching, both at home and in america. he maintained his influential position till the restoration. [ ] in - , after the taking of colchester in . [ ] it seems now to be considered fairly certain that richard brandon was the man who actually cut off the king's head. he died the next june, after having executed lord capel and his companions in the rising which terminated in the siege of colchester. it is the more curious that hulet should have been tried for the offence, because brandon certainly incurred the odium attaching to the act at the time of his death; and it seems that the fact was mentioned on an inscription on his grave. as far, however, as the evidence given at the trial is concerned, it seems possible that hulet was the second masked figure on the scaffold. all that is known on the subject is set out in the _dictionary of national biography_, under the title 'brandon.' see too a note by mr. . g. stephens in _notes and queries_, th series, vol. v. p. . colonel turner and others the trial of col. james turner, john turner, william turner, mary turner, and ely turner, at the old bailey, for burglary, . the foregoing persons were all indicted together, the first three for committing burglary on the th of january at the house of francis tryon, and stealing a quantity of jewellery, some gold, and £ in cash; mary, who was the wife of james, and ely for receiving and comforting john the next day. they were tried before lord chief-justice hyde[ ] of the king's bench, and lord chief-justice bridgman[ ] of the common pleas. all the prisoners pleaded not guilty. _turner_ then complained that sir richard ford, the sheriff, was in possession of his house and goods. bridgman, chief-justice, explained that, though once it had been the sheriff's duty to take process against the goods of an indicted man, this was done no longer since the statute of philip and mary;[ ] but as their responsibility continued unaltered, they ought to have good security. eventually it was settled that the sheriff should let turner have what he wanted for the night, and bring what papers he wanted into court the next day. the next day a jury was sworn, and sir thomas aleyn was called. lord chief-justice hyde--pray, sir thomas aleyn, tell your knowledge to the jury. sir t. aleyn--may it please your lordships, and you gentlemen of the jury; upon friday morning last was sevennight, i heard of this robbery at guild-hall, and the person robbed being my acquaintance, i went to visit him in the afternoon; and coming there, not thinking but the business had been already examined, several persons with mr. francis tryon put me upon the business to examine it. i went and examined the two servants, the man and the maid: upon their examination i found they had supped abroad at a dancing-school, and had been at cards, and came home afterwards; but before they came home, they heard that an ancient gentleman, one mr. tryon, was robbed, and then they hastened home. i examined them further, whether they used to go abroad after their master was in bed? the man confessed he had been abroad twenty or thirty times at col. turner's house at supper, about a year since. the maid denied they had been there at all: but it is true the man's saying he supped there (although it was false) was the first occasion of suspicion of col. turner. when i had examined these two, i went to the examination of turner, where he was all that day, where at night? he told me, at several places and taverns, and in bed at nine of the clock, and was called out of his bed: but having myself some suspicion of him, i wished him to withdraw. i told mr. tryon, that i believed if he was not the thief, he knew where the things were. the old gentleman said, he could not mistrust him, he had put a great confidence in him: but i desired him to give me leave to charge him with it; and thereupon i called him in, but he denied it; but not as a person of his spirit, which gave me some cause of further suspicion. i desired to search his house; nay told him i would, whether he would or no. he desired to go home; i told him, if he would go with them (some persons there) he should: but you shall not speak with your sons or daughters, or servants; they shall be examined by me. they searched his house, the marshal and constable, they said they could find nothing. the old gentleman was very unwilling to charge him with felony; some friends there were as well satisfied as i was, that he was guilty of it; and they brought me a paper that he would charge him: and thereupon i wished him to read that paper, told him i could do no less than send him to newgate. says he, you will not undo a family will you? will you not take bail? no i cannot. what proof have you material against me? i will give you as good bail as any man; give me leave to speak with mr. tryon. i did give him leave: he had no sooner spoke with him, but mr. tryon would not charge him, he promising to endeavour to find the thief. i took mr. turner on one side, and told him, i did as verily believe if he was not the thief, he could find him out, as i believed i should go home to my wife and children; and i said, that if an angel from heaven should come, and tell me otherwise, i could hardly believe it. this passed on this night: i could not sleep all the night, still it was in my thoughts that this man was the man that had done the robbery. the next morning alderman love told him that if he went presently to the minories, he would meet with love's maid, who would help him to discover the person who robbed tryon; accordingly, taking major tasker, whom he met in bishopsgate, with him, he went without aldgate, where i met with two maids that were the persons to shew me the place: the maid told me these were the maids. i bid them come behind me. at the further end of all the minories i went into the shop, and found col. turner with his hands in a chest: i charged him to take nothing out, and not to stir himself. there were two wallets, one of £ and the other £ . i took the keys from him, laid them upon the compter: i went with him into the next room, which was the kitchen, and in another chest was two wallets more: and now the gentleman was speechless. i told him it was just as i told him the last night, that your roguery would come out; what (said i) is become of the rest of the money? says he, your haste will spoil all. i called in the maid, to examine her: but she was fearful, and so trembled there was no examining her before col. turner. but in conclusion, said i, col. turner, if you will tell me whether this be mr. tryon's money, i will do you all the favour i can. says he, i cannot say it is his money. i called for a constable, and made a mittimus to send him to newgate, thinking he would discover the truth. said i, will you give me your examination? he did: it is in court. i asked him whence this money came? he told me it was removed by himself, his wife and children this morning. turner--my son and i, i told you. sir t. aleyn--i asked him where he had received it? he told me at a goldsmith's days since: he did not remember his name. i asked why he should remove his own money? his answer was, he did remove it for two or three days, till this foolery was over. when i saw i could get nothing further from him, i discoursed with him touching the remainder of the money and the jewels. says he, sir thomas, do not trouble yourself, you will lose the jewels and the rest of the money by this course; and, says he, i am now in pursuit of them. if you will give me leave to go to the old gentleman, i know all will be well. i was not content to let him go: but presently we called a hackney-coach, and myself and him, and major tasker went, and carried that money to mr. tryon. when we came there, i told mr. tryon i thought we had brought £ of his money; and i did not doubt but i had brought a person that could tell of the rest of the money and jewels. col. turner desired to speak with mr. tryon himself in private. i gave him leave. he calls me a little after: sir, says he, mr. tryon and i am agreed; i must have this money delivered to me again; i have assured him he shall have all his money and jewels again by this afternoon. i told him i could not agree that he should have the money back again, pressed him that he would stay there, and send for the rest of the money and jewels. but he [_i.e._ mr. tryon] would (if i did not) trust him: mr. tryon would have the rest of his money and all his jewels again. turner--i said, i would endeavour it. sir t. aleyn--if he had said he would have endeavoured it, i would not have parted with him; but he said he should have the money and jewels, etc.; i told him i would meet him at that time at mr. tryon's. then i took mr. tryon, and said whatever promise you have made in private, you must excuse my assenting to anything against the law: but do not tell him of it, lest you lose the jewels: i must commit him to newgate, and i must bind you to prosecute him. he desired me if i would not come so early as , not till or of the clock, and all would be brought thither. i staid till about . in the interim, i heard some particulars, what these maids would testify; which testimony had i received before i had parted with him, i would not have parted with him for any consideration. but when i came thither in the afternoon, i heard col. turner was arrested, and was then at the hoop-tavern with the officers. i sent immediately the marshal and his men to bring him to me. the officers and he came; and then col. turner told me, i had brought all these things, but the officers prevented me; i was a very unfortunate man: give me leave but till to-morrow morning at , and you shall have all. said i, i have now heard more; and you must produce the money and jewels if you expect any favour from me, or i know what to do. he pressed very hard for an hour, or almost two, that he might be trusted to go for them; if he did not go mr. tryon would lose the rest of his money and jewels. i told him i had rather they should be all lost, than i should forfeit my discretion and reputation. and thus he kept us till or at night. at last he would have gone with one person. i told him, no: if there were enough to secure you, i might give leave. saith he, the party will not see more than one; for his life would be in danger. whither would you go? i would go, saith he (to my best remembrance) to tower-hill or whitechapel. i should have met him at ; and now i must meet him about . i will call in the officers: they will tell you, your being upon a judgment, they will not part with you without the liberties: nor will i give leave, because the sheriffs will blame me. the officers said they could not go without the liberties, for it would be an escape in law. pray give me leave to go near those places, and i will send. nay, then you may as well send from hence. he begged leave to go to the hoop-tavern, and send for his wife; which i did grant. and there he did send for his wife. they brought me word he had sent his wife for the jewels and the rest of the monies. he sent to me not to think the time too long, for he had notice his wife was coming. i directed the marshal, when his wife came, he would secure her. about they brought his wife; who told me also she had delivered the jewels: they thought they were in two bags. then he came to me, and desired to speak with mr. tryon in private, and told me mr. tryon's soul was pawned to him, and his to the thief, that no discovery should be made. but when i examined his wife what money went from her house that morning, she said she knew of none. where had you the jewels? she knew of none: but she had a couple of bags that she was sent for: near whitechapel or the tower a person should meet her, and ask what she did there, and she should say she walked up and down for something that should be given her by a person; which, if he did, she was to bring it to him that sent her. he did deliver the two bags, which she delivered to her husband; but what was in them she knew not. there was sir thomas chamberlane, mr. millington, myself and col. turner, with mr. tryon. the two bags was laid upon a dresser. he told us they were now come; and having performed his part, he hoped mr. tryon would perform his. have you performed your part? have you brought the jewels and the remainder of the money? he told us the money was not brought: for the £ i shall give mr. tryon my bond, to pay him at six months. we pressed to see the jewels: we run them all over. but i should have told you one thing: she brought a cat's-head-eye-ring upon her finger. this the gentleman was like to forget: he delivered it to me, to deliver that with the rest. when we had told out the jewels we crossed them out upon the printed paper as they were called. she said all that was in the paper, except one carcanet of diamonds and jewels, valued at £ that is fallen behind the chest or aside. you have £ worth of jewels over what is in the paper; but the carcanet shall be forthcoming. he now pressed that no prosecution might be, for two souls were pawned (as i said before) and desired an end of the business. i told him further and pressed him: said i, i have staid a great while, and would stay longer, if he might have the £ and the carcanet. but when i saw there was nothing more to be got from him, now (said i) what would you have this poor gentleman to do for you? what he hath promised you i know not; he is a stranger to the law: if there had been but you two had it, and it had not been published to the world, and the neighbours' public examination taken, somewhat might have been between ourselves. but would you have this gentleman bring himself into danger? he will lose all his goods again; for he will be indicted himself. what will he be the better for discovery, when he must lose his jewels and money, and be liable to a prosecution, as you will be, were he so ignorant? do you think that i understand the law no better, being a justice of peace, to bring myself into danger? all the kindness i can do for you is (to be short), i must send you and your wife to newgate. 'how say you, master alderman?' then i had better to have kept the jewels. those were his words; to the best of my remembrance he said so. my lord, i asked him several questions: why he should give a bond for £ , if he were not concerned in this business? but he knew not what to answer. saith he, will you not take bail? said i, i can take no bail: i must send you to the common gaol, and then i am discharged. pray send me to the compter. no i cannot. do you think i would make an escape? i cannot tell; but i would not bring myself into danger. he prayed me i would give him leave to go home. i must make my warrant: if the marshal and constable will do anything, i shall not direct them. he desired his wife might go and fetch some linen. lord chief-justice bridgman--what day were the jewels delivered? sir t. aleyn--saturday. lord chief-justice bridgman--thursday was the robbery, friday he was examined, saturday the money was removed, and that night the jewels were brought and he committed. sir t. aleyn--if i have said any thing that he is not satisfied wherein i have not true spoken, let him ask me; i shall not do him the least wrong. lord chief-justice hyde--do so, mr. turner. turner--do your honours understand of sir thomas the time the robbery was committed? i shall ask him some questions. sir t. aleyn--i have only one more word to say to you: that before he went to the hoop-tavern, nay, said i, col. turner, be ingenuous whether this was not mr. tryon's money that he removed? and he confessed it was. lord chief-justice hyde--the money was removed from his own house. sir t. aleyn--yes; but his wife, children, and maid denied it. lord chief-justice hyde--mr. turner, will you ask him any questions? what are they? turner--i would ask all this back again: you are upon your oath, mr. alderman. lord chief-justice hyde--you need not tell him that he is sworn; the court and jury understand it so. lord chief-justice bridgman--go on, mr. turner; ask your questions. turner--my lord, i demand of sir thomas aleyn whether i did not tell him at the first there was a wicked young man had belied my house and family, saying, that he supped there that night, when he had not supped at my house these months. sir t. aleyn--i think i have done him that right already. he desired me to examine that young man, who said he had supped at col. turner's; but i found he had not been, nor was not there. turner--upon friday night, when the alderman pressed me concerning the thing, i told him i had some suspicion of some persons, who formerly should have robbed mr. tryon a year ago, and i employed mosely the constable and mr. tryon's man to go to ratcliff, and i went another way. pray ask sir thomas whether i did not promise to do all i could. sir t. aleyn--i pressed him hard; he said he would endeavour it turner--whether did not i tell him that that money was carried there on purpose to gain the other fellows that had the jewels? said i, if this money be taken away, he that hath the jewels will not bring them, and the remainder of the money; but that this money must bring him to it, that they might share it. sir t. aleyn--there was not one word of this: his examination was contrary. he told me £ was received of a goldsmith, he knew not his name, and £ was in his own house; and that he removed it for two or three days, till this foolery was over. he said it was his own money. i said, an honest man need not thus remove his own money. one thing i have omitted: when i was examining of him in the minories, word was brought me his son was fled away at the back door. i bid them run after him; but they said they saw him leap over a great ditch, he was not heard of till yesterday, though i sent out my warrants for him. lord chief-justice hyde--yourself (as sir t. aleyn swears) said you knew not of whom you had part of the money, but the other was your own, and yet afterwards that the money was tryon's; why did you say so? turner--i will tell you the reason; i would not have my business spoiled, and did feign those answers. my lord, i do demand of him whether mr. tryon and i had not made a bargain in the morning, whether or no if he might have his goods the person should be free, and that he agreed no blood should be spilt; that he had rather lose all his money and jewels, than to forfeit such an asseveration which the thief had bound me that i should swear to him, that by the blood of jesus christ that was shed for him and all sinners, his life should be free. lord chief-justice hyde--you are beside the business. turner--my lord, i ask alderman aleyn whether i did not tell him this? sir t. aleyn--i told your lordships two souls were pawned, as he said before. lord chief-justice hyde--do not spend your time thus; the question's short, whether you are guilty of robbing, or breaking the house of mr. tryon or no? turner--i am as free as any man here. lord chief-justice hyde--they will not believe your own words. mr. tryon, pray (as you are able) give an account of this business. tryon--my lord, about of the clock, or something past, upon thursday night last was a sevennight, two men came into my chamber when i was fast asleep, one on the one side, and another on the other side of the bed: one had a lanthorn that opened on one side, and waked me: when i saw him i was much astonished (as i might well be); but as i knew them not, i said, my masters, who are you? i was newly out of my sleep; being an ancient man, i apprehended another man for the party i spoke to, but he was not the man; and i named him by his name, what do you do here at this time of night? what is your business? said nothing to me; one took both my hands, the other with a little cord bound me very hard, insomuch here yet is the dents of it; and bound my feet; gagged me, and used me barbarously, most inhumanly; i must suffer it, because i could not tell how to avoid it. when they had done, then told me this withal, you shall not lose a hair of your head. i knew not their intentions, i feared what it was, for when they had done this, they left me; i had nobody could come to me in my house, my servants, i knew not upon what grounds, they were forth at supper when i was a-bed, which was of ill consequence. after i had been an hour in this manner i rolled myself out of my bed, and fell down; and saving your lordships' presence, a chamber-pot fell, broke, and i fell upon it, and very much hurt myself upon the pieces of the pot: and so with much ado, it pleased god, i know not how myself, i got to the chamber-window which lay to the street; i called out, murder! and thieves! my neighbours said, i called with so strong a voice they wondered to hear me. quickly after, many of my neighbours came in, and one mr. peter vanden-anchor, a dutchman, that selleth rhenish wine, he came in and unbound me; and so after i was unbound i went down to the warehouse as i was, without clothes about me, only my waistcoat and shirt, and saw that they had been there. i considered those that had done the thing, were very privy to my house; they knew where to fetch the key of my cash, in a drawing-box, taking the money there, which was about one thousand and odd pounds; some plate there was, they did not meddle with it. lord chief-justice hyde--how came they by the jewels? tryon--i forgot something concerning some jewels; these jewels were in a drawer under my table in the compting-house, he was privy to that, because he did frequent my house very long and was very familiar. lord chief-justice hyde--who was privy to all this? tryon--james turner. lord chief-justice hyde--mr. turner, would you ask mr. tryon any questions? turner--by and by, when i come upon my proof. _william hill_, mr. tryon's man, was sworn, and stated that he had locked up the house at eight o'clock, when the jewels were safe, and mr. tryon was in bed. when he came home he found the money and the most valuable of the jewels gone. on saturday turner was arrested and sent for the witness, who went to him with two friends, gurney and pilkington. turner asked him to persuade his master to procure his discharge so that he might go about his business, or it would be ruined. 'proceeding into some discourse, i was saying to him it was a great providence that i and the maid was not then at home, for if we had, we should have been killed. he answered, saith he, no, they would only have bound you and the maid. i asked him, how it was possible to get in? he answered, one went through the entry in the daytime, and there lay till night, went upstairs, found a candle, lit it, went up to his chamber, took the key and went down and let in the others.' turner had talked to him about tryon's will; he said it was a pity he did not make one; tryon had told him he had made one, but he knew he had not done so. 'he told me of one that could counterfeit a hand.' bridgman, lord chief-justice--was it not grainger? hill--yes, my lord; that that man could counterfeit a will, and i and mr. garret and another good fellow should be the three executors and a third person overseer, and that would please the old man. i answered i would not have to do in such an unjust thing for all the world. he had been to supper that night at starkey's, with the maid. he got to the house after the robbery had been discovered, and found the neighbours in the house when he arrived there. turner--this thing touching the will has another face; his uncle was an acquaintance of mr. grainger, his uncle that bound him an apprentice, that lived in cripplegate, now in cornhill. this grainger had counterfeited a will touching my lord gerrard and some one else, about an estate. said i to this young man, you have an uncle acquainted with a notable fellow, one grainger, and your master making no will, speaking merrily, this fellow is able to make it for him. ask him if i did not tell him his uncle was acquainted with such a person. hill--you told me so indeed. bridgman, lord chief-justice--hill, by your oath you have taken, did he not persuade you to endeavour that you and he and grainger should counterfeit a will? hill--he did, my lord, i answered that i would not meddle with it for all the world. turner--go, go, go, this is malice; for it was mere jesting with him. _elizabeth fry_ proved that mrs. turner came to her house at six in the morning, and said that 'a friend of hers, a merchant, newly broke, had a wife, and seven or eight children; they desired to secure the money' (which mrs. turner brought) 'till they had taken their oaths the money was not in their house.' she said her husband and her son ely were coming with it. the witness allowed her to put wallets containing money, she did not know how much, into her chest. mrs. turner said her husband was coming with more, and when he came he offered her twenty shillings for her kindness; they both asked her to conceal the money because the discovery of it would ruin the poor gentleman and his children. she did not see the bags sealed; there were three wallets, one was put into a chest in the shop, and two in the kitchen. there was a discourse of £ . there were five wallets brought into the house; three in the shop, and two in the kitchen. sir t. aleyn--you hear what the wench says, she says there was five wallets, three in the shop, two in the kitchen; i took two in the shop, and only one in the kitchen. turner--pray, my lord, ask her which is ely. fry--that is [pointing to ely]. turner--it was false; this ely carried none; both my sons are dear to me, and if either carried more than the other it must be my eldest; and yet i must say, it was john, my eldest son that carried the money, this boy was at home; she hath foresworn herself. _gurnet_ met turner on the exchange the saturday after the robbery; turner told him that he was going to make a discovery and clear himself; he had brought £ and was going to bring the rest of the money and jewels at three o'clock. _major ralph tasker_ corroborated sir t. aleyn's account of seizing the money in the minories: then i saw a fellow play bo-peep in a back-room, and presently was a noise, he was gone and fled; his son they said it was. sir t. aleyn pressed very hard to mr. turner, and desired to know whose money that was. says turner, by the eternal god, it is my own money, with many other protestations of his innocence. a constable was sent for, and we carried the money and turner in a hackney coach to mr. tryon, and there left the money on a table with mr. tryon. they had some discourse; turner came forth and said, the old gentleman and i are agreed, i will trust the money no longer with you, but with the old gentleman himself. said i, let me be discharged of it, do what you will with it. bridgman--did you see the bags out of the wallet? sir t. aleyn--we saw one which was sealed, i think, with the bishop of chichester's seal. _ann ball_ proved that mr. and mrs. turner had left some money at her house with the maid. the maid went to her sister and acquainted her with it. in this way the knowledge of the money came to sir t. aleyn. _frederick ixam_ was present when the bags were taken out of the wallets at mr. tryon's house: three of them had no seals; one had a seal very much defaced; one had a seal which was the same as that on a letter from the bishop of chichester produced by mr. tryon. the bags were in court. _hanson_ and _mr. tryon_ proved the agreement of the seals, and the bishop of chichester's letter, which was produced. _cole_, a serjeant, and his brother, a yeoman, proved that they arrested turner in a civil suit about three o'clock on saturday afternoon. soon after the constable came and charged them to assist in taking him before sir t. aleyn. by and by i was saying, col. turner, how could this house be robbed, and none of the doors broke? o, said he, i took a man in the minories, who has discovered it to me; he told me that one going into the cellar in the daytime lay there till night, then went upstairs, found a candle and lit it, took the key from his bedside, and went down and let all of the rest of the thieves in. the young man being there, said, it was well the maid and i was not at home, we should have been killed. no, says he, you would not have been killed, only bound. turner--as the fellow told me. hyde, lord chief-justice--did he say nothing touching mr. tryon's tooth? cole--he said, that the fellow putting his finger in his mouth to gag him, the old gentleman bit him; and in struggling to get out his finger, pulled out his tooth. lord chief-justice hyde--you are very perfect at it, mr. turner, every way. turner--ay, my lord, i examined him every way. _peter vanden-anchor_ and _chaplain_ were the first people who entered the house after the robbery, and described the state in which they found it, and how they unbound mr. tryon. the latter examined the servants as to their movements; hill, the manservant, said that he and the maid had been at supper with turner; but the maid said she had been at the house of one chamberlin, a goldsmith. _christmas_ described how he had been arrested at two in the morning, but had been discharged the next day. _millington_ was at mr. tryon's house on saturday evening, and finding turner in custody, there was asked by him to intercede, in order that he might have his liberty to go about the jewels. afterwards turner, at his own house, sent his wife to whitechapel or tower-hill, where she would meet a man who would give her something. the wife brought the jewels to the hoop tavern, and from there they were taken to mr. tryon's, where they were examined, and none were found missing except a carcanet jewel. _mannock_ had been told by turner in newgate that he was to have £ for recovering the jewels and the money; he had recovered £ and most of the jewels; if sir thomas had not secured him, he would now have them all; 'but newgate was not the place to find them out.' _sir t. chamberlain_ was sworn and said, that hearing on friday morning that mr. tryon had been robbed, he went to his house about three in the afternoon. i found a great many people about him; sir t. aleyn, lady garret, and the countess of carlisle was there. i told him, mr. tryon, i understand you have been robbed. yes, says he, i have a great loss. i found him very staggering what he should do. i said, you must do like a man, or you will lose all: said i to sir t. aleyn, if you do not help the poor man, being ancient, he will quite lose all. with that i went up above in the house, sir t. aleyn was pleased to call me along with him, i was by at all the examinations; i did mistrust, and told mr. tryon in french, that no doubt but that gentleman was in the robbery: the reason was, that he being a frequent man in the house, knew everything: he was there continually, coming for jewels and things, and no man could do it but himself: that was my judgment, i told sir t. aleyn assuredly he had a hand in it. my lord, the while we were examining the servants, word was brought in, that he was hearkening at the door, and in the yards, which made me more and more mistrust him. we heard that the maid had been gadding abroad several times: i desired sir t. aleyn to examine the maid how often she had supped at turner's, she denied any time. the young man was examined, who said, they had been thirty or forty times feasted at col. turner's. my lord, sir t. aleyn has given you a just account, but he omitted one thing; he had a note sent him, which he had in his pocket, touching mr. turner's going about removal of the money into the minories; and before turner came in, he examined mrs. turner upon that note: says he, you were there too, and carried the money. says she, she [_i.e._ mrs. fry] is a liar and a whore for saying so. col. turner came in and said, why do you torment and vex my wife; and falling a cursing, and swearing and banning, said she was with child, you will make her miscarry, let her alone. sir t. aleyn examined him where he had been that day, and that night; he told me of many taverns, and going to see his horse, and i know not what, but we found him faltering. when the jewels were brought, there being two notes, sir t. aleyn had one, and i another. the old gentleman was so joyful to see them again, that lying by him, and handling them, he pulled two or three down with his sleeve. says mr. turner, come, i know what belongs to them better than any of you, and read them over, and i will shew them you. there wanting one jewel, says he, that rogue that has the other money hath this jewel, but i do not doubt but i shall find that out too. we put them all together, and sir t. aleyn sealed them with his seal. for the bags of money, i saw them taken out, and one being sealed with a small seal, i put on both my spectacles, i found a lion rampant at top in one of the quarters; said i, this is a seal of some great person; and then a letter was brought down, and being compared, i was satisfied in my conscience they were alike. sir t. aleyn told me he must make a mittimus for him and his wife: said she, do you send me of your errands? you shall send somebody else another time: i thought it would come to this. after much ranting and swearing (i thought the devil would have fetched him out of the room) he said, that he had better have kept the jewels, than to bring them forth, and to suffer for it himself, for he had pawned his soul, and would not reveal it; and said, that mr. tryon had likewise engaged the like to him. for the £ he offered his bond. _hill_ recalled, said that turner had been employed by tryon about some mortgages; but he knew of no particulars. sir t. aleyn--my lord, john turner his son there, fled away from me when i came to the house in the minories. bridgman, lord chief-justice--why did you fly away? john turner--i did not, sir. sir t. aleyn--you did not fly! you ran away as fast as you could. john turner--my lord, a woman cried out 'get away, and save your life!' and not knowing what the matter was, i went away. col. turner--poor boy! he thought thieves had been coming, and affrighted him. sir t. aleyn--as to ely turner, i examined him upon the sunday, the day after his father was committed; he would not confess the carrying of any money, and the maid swearing it, i committed him also. col. turner--what's that of ely? upon my soul, the boy carried none. john turner--i carried what was carried. col. turner--my lord, one son is as dear to me as the other, but if either be more, it must be my eldest; but yet i must say, it was john my eldest son that carried the money. sir t. aleyn--my lord, w. turner was brought before me on tuesday or wednesday: sir r. brown sent out his warrant for him, being a person of evil name, and likely to do such a fact; being taken, he was brought before me. my lord, when mr. tryon looked upon him, he suspected him: i examined him when he saw col. turner; he said not these three years, not to speak to him; and yet one at the cock behind the exchange said, this w. turner staid for col. turner at his house two hours, that col. turner came in, paid for the pot of drink, and for ought he knew they both went together: thereupon i committed him. in the afternoon i ordered this person to send his servant; one came and made oath that he came in, and enquired for col. turner, asked for him, staid two hours for him; that they went both out of the house together: and this was on the wednesday before the robbery. _william dawes_ and _john rouse_, his servant, corroborated what sir t. aleyn said as to william turner. _garret_, _watcher_, and _culley_ were called to prove that turner had said that the money he took to tryon's house was his own money, and that he was going to recover the jewels; 'if any man could say that he lost sixpence of his money, or six-penny worth of his jewels, he had two fellows in custody should answer for it.' _pilkington_ corroborated what other witnesses had said as to the account turner gave of the way in which the robbery was committed. _tryon_ was recalled to identify william turner as one of the two men whom he saw in his room, and as being the man who knocked out his tooth. the men were barefaced; one said to the other that it was only just past eleven o'clock. _hyde, lord chief-justice_, then called on the prisoners to make their defence. he shortly recapitulated the case against them. william turner and his father col. turner had met on the day before the robbery; the robbery must have been committed by some one who knew where the money and jewels were locked up, and col. turner had this knowledge. early on the morning after the robbery col. turner, his wife and his son, moved a quantity of money out of their house, and asked a neighbour to take charge of it, falsely alleging that it belonged to a merchant who wanted to hide it. afterwards they admitted that it was their own, but it appears that one of the bags in which it was, was sealed with the seal of the bishop of chichester; and at the time of the burglary there was £ in bags left with mr. tryon sealed with the same seal. william turner, on people coming to his father's house, 'takes footing and leaps over the ditch to escape, which is a good just ground of suspicion that he is guilty of somewhat that he would not abide to answer.' col. turner and his wife show an exact knowledge of the way in which the crime was committed; 'lay all this together, unless you shall answer it, all the world must conclude that you are the one that did this robbery.' turner--i shall first prove that upon thursday night, the time of that supposed burglary, that myself, my wife, and all my family, were in bed, fast asleep and innocent, not knowing anything of this business. this i shall prove, if not, let me hang and all my family. bridgman, lord chief-justice--all this may be true, and yet this not to the purpose. turner--then i cannot be guilty of the burglary. bridgman, lord chief-justice--if you will lay and plot such a robbery, though you are not there, yet you are guilty of it; for it is ordinary that the main setter will not be present at such times, but will then be in bed, that people may take notice thereof. but satisfy the court by what means you came by this money and jewels, and then call your witnesses. _turner_ in his defence said that his name was first mentioned by the man hill, the manservant, who, when he came home late after the robbery, said that he and the maid had been at supper at his house, which was false. the fact was that the first he heard of the burglary was when the constable came to him and found him and all his family in bed. on being informed of what had taken place, he at once went to tryon's house, and discussed the matter with him. tryon suspected christmas of being one of the men he had seen in his room, and he was fetched by a constable and afterwards sent to the compter. turner had prevented a robbery at the same place a year since, and he set to work to see if he could not recover the stolen property by the same means that he had used on that occasion. he remembered one john wild, and he went to look for him 'beyond the little postern between the two tower hills, near the tower ditch.' on friday night when he got to the house where he had found the persons he wanted the year before, he 'passed a fellow in black, in a large coat, such another man as this (pointing at one that stood by); he was in a black loose coat, and he was trimmed with ribband at his knee.' thinking he must be one of the men he was in search of, either wild or white, he seized him, and charged him with the burglary. said i, mr. tryon's house was robbed, and you are the person that i will lay flat felony to; you should have been one of them that were to rob him a year since, when col. ashton betrayed you all. he began with some hard oaths; be quiet, said i, i will call out; you are an undone man; i will lay this felony to you. i shifted my hold from his collar to the waistband of his breeches; i thought i had him more secure. said i, wild, do not deceive yourself, play not the fool; if you will save your life, let me see where those goods and monies are, else you will go to pot. we walked to the hill. i had fast hold of his breeches all this while; and yet i was afraid he might have some dagger, and stab me; said i, be brief, you are alone, either resolve me or i will call out. thereupon wild, having bound turner by an oath that his life should be safe if he discovered the thing, whistled thrice, and so called white, to whom he explained the situation, and sent him for the money. white went off and brought back £ in two journeys, turner holding wild by his breeches all the time. this lasted four hours,[ ] from midnight till four, during which time wild gave turner the account of how the burglary was committed, which he afterwards explained to the witnesses. when the £ was all brought, wild and white carried it to turner's house, and threw it down on the floor of his parlour, promising to bring the rest of the money and the jewels the next day. white then objected that the men who had them would not come into the city, and it was arranged that they should bring them to betty fry's house in the minories, an appointment being made to meet at the blue boar on the afternoon of the same day. turner, his wife, and his son john (not ely as fry had sworn) took the five bags to fry's house, and later on turner went to tryon's house, where he met gurney ('jesus! what a noise is here in the court. my lord, i can hear but with one ear'), and told him that he would recover all his money except a few shillings. tryon was delighted, promised him £ , and swore not to betray wild and white. at eight o'clock on saturday night,[ ] he found wild by the blue boar in tower hill, and told him where the money was, and wild said it must be moved to st. catherine's by the water-side. some of the money was carried there,[ ] and as the rest was being moved sir t. aleyn came up, and john turner ran away. col. turner told sir t. aleyn that the money was his, because tryon had promised it to him, and he wanted to conceal the transaction. they all took the money to mr. tryon's house, where tryon acknowledged his promise, and sir t. aleyn agreed that if the goods were restored, the old man's word should be made good. more that that, he said he would make up the business, or he would smother it. my lord, you have a great deal of patience, i am humbly bound to you, here is nothing but the naked truth, step by step, as i trod it. afterwards[ ] wild came and said, all will be well. said i, what have you done? are you sure, saith he, the jewels nor nothing shall be stirred? said i, you see all is spoiled; sir thomas aleyn is come where we had lodged the money, the thing is known, do they not hear of it? yes they hear as well as you, and know what is done, and some have eyes upon you. said i they will run away with the jewels. no you shall meet about three o'clock either by the blue-pig at tower-hill, or at nag's-head over against white-chapel church. nobody knows me but you, your wife, and your son who saw me this morning. coming home about change time stubbs told him it was said that he had been concerned in the robbery, and later he was arrested by cole for his debt to lyon and taken to the hoop tavern, where he was still in custody when a constable came with a warrant to take him before sir. t. aleyn. he asked sir thomas to allow him to go to fetch the jewels, but he was not allowed to go out of the liberties. he then remembered that wild had said he could send his wife, whom he described as a full short woman about forty or fifty years old, she had a black scarf on; ... i told sir thomas this story. my wife came to me publicly, i did not whisper with her. mrs. turner--nay, look you, husband---- turner--pr'ythee mall, sit down; you see my lord, my wife will interrupt me with nonsense. pr'ythee sit thee down quickly, and do not put me out; i cannot hold women's tongues, nor your lordship neither. bridgman, lord chief-justice--this is not a may-game. turner--my lord, it is a serious business, and i hope god will bless it. 'pray,' said i, 'mall go.' his wife went as she was told. she found this nag's head, she sat down, being somewhat fat and weary, poor dear! i have had children by her, sons and daughters. seven or eight times did this fellow round her---- mrs. turner--let me give that relation---- turner--you cannot, it is as well; pr'ythee sit down, dear mall, sit thee down good child, all will be well. mrs. turner, in short, brought back the jewels which were given to tryon, in chamberlin's presence, and turner offered to forego his £ , but was nevertheless committed by sir t. aleyn. bridgman, lord chief-justice--have you any witnesses to prove all this discourse passed between you and wild? turner--i have by, witnesses to prove i said this, that there was such discourses between us. bridgman, lord chief-justice--no doubt of it; and so will many a man at newgate frame such a story as this. hyde, lord chief-justice--you have told a long story about wild, that you took him by the throat, and that you were alone: what weapons had you? turner--none, my lord. bridgman, lord chief-justice--had you a lanthorn with you? turner--no, my lord. bridgman, lord chief-justice--what time of the night was it? turner--twelve o'clock, my lord. bridgman, lord chief-justice--you staid till four, so they were four hours a-bringing of the money. turner--yes, my lord. hyde, lord chief-justice--you took a man in the dark by the throat, that man that was guilty of such a thing, as when that you did let him go to call his companions to bring the money, brings fellows to you single; i would be glad to know, whether in this case they would not have knocked you on the head, and killed you? turner--my lord, wild had engaged his soul, and i my soul to him, that if i would not discover him, i should go away free. bridgman--great security indeed! turner--i desire my maid may be called; pray ask sir t. aleyn what he hath done with my maid; he took her up with sir r. brown, and two marshal's men (pray gentlemen, make not a laughing business of this), sir thomas pray, where is my maid? sir t. aleyn--i had this maid upon examination, i found cause of further examination, thereupon directed an officer to take her, and she is now in the garden. _mosely_ the constable, the marquis of dorchester's servant, and turner's maid were called to prove that turner and his family were in bed at the time that the burglary took place; but proved nothing material, the maid in particular becoming confused and contradicting herself several times. various witnesses were called to character, and _sir t. aleyn_, _chamberlin_, _millington_, and others were recalled, and all agreed that turner, when he was in custody, asked to be allowed to go to fetch the jewels, but did not offer to arrest the thief. bridgman, lord chief-justice--this is a notable piece of cunning; when he was moved by alderman smith and others, all this while he names no man; but now he was under an action, he would have them go with himself out of the liberties, and yet saith never a word to take the man; he knew very well it was out of the liberties. truly, i think if sir t. aleyn had done it, i should not have taken him to be sir t. aleyn. _william turner_ denied all knowledge of the charge. _john turner_, questioned by the judges, said that he had carried two bags of money from fry's house to wild on the saturday morning; he made two journeys with one bag each time; he delivered them to wild in the street at tower-ditch. _hyde, lord chief-justice_, then summed up. he began by pointing out that as to mrs. turner, though it appears all along that she had a hand in this business, yet nothing appears at all, but doing only that which her husband had directed; then by law she cannot be accessory for committing of felony. as to ely, there was nothing against him. then the matter is to james, john, and william turner; i hope, and i am sure you are nearer, and you take note of what hath been delivered; i have not your memories; you are young and no persons better; you are men of understanding, i need not repeat particulars to you. he points out, very shortly, that john and william turner had not proved that they were in bed at home all that night, and that even if they were in bed when the constable came to the house, that proved nothing, because the crime had then already been committed. as to col. turner, you see when he comes the next day, he undertakes to find out the thieves, and that only upon a suspicion; that there being a purpose to rob mr. tryon a year before, he goes to the same place now, he found wild out then. he had very good luck; that because he lodged there a year before, he must have the same lodging now: it is a likely matter that thieves, as wild is, should keep their lodgings thus constantly. there he finds him, takes him by the throat, and there they were playing a while: there one comes, goes, and brings some part of the money. after all this, the next day he must take his word to come again and bring the jewels. observe but this; after which time as the money was received yet by a token, though he never saw the woman before, describing her a short fat woman, with a long black scarf, he must meet her, asked her what she wanted, and must give her jewels of that value: 'tis one of the finest framed stories that i have heard, that this man should come to be thus privy after himself stood charged and the jewels brought for all this; and yet he must know nothing of it. you observe the evidences, and their circumstances themselves: the witnesses he called in point of reputation, that i must leave to you. i have been here many a fair time: few men that come to be questioned, but shall have some come and say, he is a very honest man; i never knew any hurt by him: but is this anything against the evidence of the fact? but you have here the whole; i shall leave it to you. _bridgman, lord chief-justice_, summed up even more shortly, mentioning a few of the absurdities of turner's story. the jury withdrew for an hour, and then returned with a verdict of guilty against col. turner, and not guilty against all the others. on the th of january col. turner and william turner made a confession as to their share in the crime. from this it appears that the burglary was planned entirely by col. turner, and was committed by him, his son william, one white, a solicitor, and an unnamed friend of white's. col. turner procured an impression of tryon's door-key in wax, and had another key made to the pattern. by means of this all four men entered tryon's house about nine o'clock, and having bound and gagged tryon, stole his keys, opened the doors of the counting-house and the warehouse, found the keys of his iron chest, and took the money and jewels out of it. how much money or how many bags they took does not appear, but everything was taken to a house in duke's place, from which col. turner fetched away the money and the jewels to his own house the next morning. the money was still in his house when it was searched by the constable and the marshal on friday night. william turner was to have £ , and white and his friend £ a-piece for their pains. neither mrs. turner, john turner, or ely turner knew of the robbery, but they helped to move the money on saturday morning. on being asked on saturday morning where the jewels were, col. turner said he had given them to white at six o'clock that morning. col. turner afterwards restored the carcanet, the only jewel which he had not restored before. on the same day in the evening he was condemned to be hung. on the occasion of his execution, two days afterwards, he made a dying speech of some length. after admitting the justice of his fate, and declaring that he died in peace with all the world, he said-- truly it is my sins, and the greatness of my sins hath brought me hither, and the greatest sin that troubles me, and lies on me, is that sin which i was much addicted to, and that was the sin of profaneness, of blaspheming god, of taking his name in vain. i never heard any man or woman, or whatever they were, swear in my life but i did tremble for them, to hear them; for keeping company with men of honour (they were men of quality, though that was an ill quality in them) was the occasion of it i never kept company with any poor, base, inferior people, with any thief, or any suchlike base person in all my life, but fled from them and avoided them till this accident. as i was telling you, for that great sin of swearing; keeping company with persons that did swear, i did get a habit of swearing, though i hated it and loathed it, when i observed it in myself, and yet, may be, did it again, forgetting presently, and not observing, being of a hasty nature. he then goes on to say that his sons were innocent of the present matter, and asks the sheriff to procure their liberation from prison, which he promises to do if he can. he laments the present state of the world. i must deal really with you, this nation is very full of sins, of crying sins, of sins that the land will suddenly mourn by god's hand; i have every year expected the sweeping plague to come and take away two-thirds of the nation for the sins that lie upon us. it is expected of him that he should clear himself from accusations that have been made against him. he knows nothing of having received £ from dr. hewyt's wife to procure him a pardon, his wife will soon receive a certificate from her to show that this is true. he did not cheat the king out of money when he was beyond the seas with him; for he was never out of the country. he relates various sufferings that he endured on the royalist side during the civil war, but being reminded by the sheriff that this is not a proper subject for a dying man to discourse about, he points out that tryon got back all his property, and then goes on rather inconsistently:-- but, mr. sheriffs, assure yourselves, so sure i am going to heaven, i shall be there in glory, so sure had mr. tryon (if i had not met with those two foolish timorous officers) have had his goods and money again; there had never had one word of this business been known. it was a sad fate, that these two fellows out of a little fear should be the occasion of my coming here; but god forgive them, stubs and lyon i mean, these two villains, i have nobody to thank for my blood but them; and yet i do free them, and freely forgive them. mr. sheriffs, are you satisfied in this? would you have me say any more touching the fact? mr. sheriff--it is satisfaction to us if you are satisfied yourself. turner then goes on to deny other charges that have been made against him; particularly he asserts that a man of the same name who died in his house was not poisoned by him, and that he knows nothing of a 'glass jewel' which the ordinary suggests that he delivered to the countess of devonshire in place of another. he expresses his faith in the protestant church, and his belief in the chief tenets of the christian religion, and denies that he had been drunk and abused the ordinary, swearing, and boasting that he had £ , and could have a pardon when he pleased. on the contrary, he had acted as clerk in the prison chapel. about eight or nine o'clock justice stringer came to me in chancery-lane, and two or three knights and persons of quality, eight or nine in all; they had one bottle of sack among them, of which i drank one little cup ... and god forgive them that raised the scandal. he then complains of the hole where he was confined the night after the sessions-- it is a most sad deplorable place; hell itself, in comparison cannot be such a place; there is neither bench, stool nor stick for any person there; they lie like swine upon the ground, one upon another, howling and roaring ... i would humbly beg that the hole may be provided with some kind of boards like a court of guard, that men may lie down upon them in ease. jackson (the gaoler)--seventeen out of nineteen made their escapes out of that hole, they having only a form there. sir r. ford--if i did think there were a reprieve to come for you i would be contented to spin out the time thus; but in good earnest i expect none; unless you had an apprehension you were not to die you would not spin out the time thus, not thus run to many impertinences. turner then finished his speech, and after he had prayed a little the executioner fitted the rope round his neck-- turner--what, dost thou mean to choke me? pray fellow, give me more rope; what a simple fellow is this! how long have you been executioner that you know not yet how to put the knot? in the midst of his private ejaculations, offering to pull down the cap, he espied a gentlewoman at a window nigh, kissed his hand, said 'your servant, mistress.'... his cap being pulled down he gave the sign and the executioner turned him off. the confluence of people from the gaol to the place of execution was very great, beyond the memory of any upon the like occasion. during his imprisonment, and to the last breath of life, his carriage was very undaunted. footnotes: [ ] see _ante_, p. . [ ] see _ante_, p. . [ ] and philip and mary, regulating bail so as to prevent justices admitting prisoners to bail collusively. this statute 'was, in fact, the origin of the preliminary inquiry, which has come to be in practice one of the most important and characteristic parts of our whole system of procedure, but it was originally intended to guard against collusion between the justices and the prisoners brought before them.'--stephen's _history_, vol. i. p. . [ ] these statements were probably made as answers to questions; but the fact does not appear in the report. [ ] at this point either turner got into a wild confusion as to time, and nobody noticed it, or the report is wrong. turner's story as it now stands is quite irreconcilable with the obviously true part of the evidence. [ ] turner must have said, or intended to say, that he had agreed to pay wild the £ that white had given him the night before, as black-mail for the rest of the money and the jewels; but nothing of this appears in the report. it does not appear from the report how much money tryon lost in all, nor how much was found at fry's. it does not follow that evidence on the subject was not given at the trial. [ ] turner was arrested by cole about p.m. sir t. aleyn does not say when he parted from him in the morning. the suffolk witches[ ] at the assizes held at bury st. edmunds, for the county of suffolk, on the th of march , before sir matthew hale,[ ] lord chief-baron of exchequer, rose cullender and amy duny, widows, both of leystoff, were indicted for bewitching elizabeth and ann durent, jane bocking, susan chandler, william durent, elizabeth and deborah pacy; and being arraigned they pleaded not guilty. three of the persons above-named, viz. anne durent, susan chandler, and elizabeth pacy were brought to bury to the assizes, and were in a reasonable good condition; but that morning they came into the hall to give instructions for the drawing of their bills of indictments, the three persons fell into strange and violent fits, shrieking out in a most sad manner, so that they could not in any wise give any instructions in the court who were the cause of their distemper. and although they did after some certain space recover out of their fits, yet they were every one of them struck dumb, so that none of them could speak, neither at the time, nor during the assizes, until the conviction of the supposed witches. _dorothy durent_ was the mother of william durent, an infant. she swore that on the th of march , she left her son william, who was then sucking, in charge of amy durent while she was away from home, giving her a penny for her trouble. she laid a great charge on amy not to suckle the child, and on being asked why she did this, she explained that amy had long gone under the reputation of a witch. nevertheless, when she came back amy told her that she had given the child suck;-- whereupon the deponent was very angry with the said amy for the same; at which the said amy was much discontented, and used many high expressions and threatening speeches towards her; telling her, that she had as good to have done otherwise than to have found fault with her, and so departed out of her house; and that very night her son fell into strange fits of swooning and was held in such terrible manner, that she was much affrighted therewith, and so continued for divers weeks. and the said examinant farther said, that she being exceedingly troubled at her child's distemper, did go to a certain person named dr. jacob, who lived at yarmouth, who had the reputation in the country, to help children that were bewitched; who advised her to hang up the child's blanket in the chimney-corner all day, and at night when she put the child to bed, to put it into the said blanket, and if she found anything in it, she should not be afraid, but throw it into the fire. and this deponent did according to his direction, and at night when she took down the blanket with an intent to put her child therein, there fell out of the same a great toad, which ran up and down the hearth, and she having a young youth only with her in the house desired him to catch the toad and throw it into the fire, which the youth did accordingly and held it there with the tongs; and as soon as it was in the fire it made a great and horrible noise, and after a space there was a flashing in the fire like gunpowder, making a noise like the discharge of a pistol, and thereupon the toad was no more seen or heard. it was asked by the court, if that after the noise and flashing, there was not the substance of the toad to be seen to consume in the fire? and it was answered by the said dorothy durent, that after the flashing and noise, there was no more seen than if there had been none there. the next day there came a young woman, a kinswoman of the said amy, and a neighbour of this deponent, and told this deponent, that her aunt (meaning the said amy) was in a most lamentable condition, having her face all scorched with fire, and that she was sitting alone in her house in her smock without any fire. and thereupon this deponent went into the house of the said amy duny to see her, and found her in the same condition as was related to her; for her face, her legs, and thighs, which this deponent saw, seemed very much scorched and burnt with fire, at which this deponent seemed much to wonder, and asked the said amy how she came into that sad condition? and the said amy replied, she might thank her for it, for that she this deponent was the cause of it, but that she should live to see some of her children dead, and she upon crutches. and this deponent farther saith, that after the burning of the said toad, her child recovered, and was well again, and was living at the time of the assizes. and this deponent farther saith, that about the th of march, car. ii., her daughter elizabeth durent, being about the age of ten years, was taken in like manner as her first child was, and in her fits complained much of amy duny, and said, that she did appear to her, and afflict her in such manner as the former. and she this deponent going to the apothecary's for something for her said child, when she did return to her own house, she found the said amy duny there, and asked her what she did do there, and her answer was, that she came to see her child, and to give it some water. but she this deponent was very angry with her, and thrust her forth of her doors, and when she was out of doors, she said, you need not be so angry, for your child will not live long: and this was on a saturday, and the child died on the monday following. the cause of whose death, this deponent verily believeth was occasioned by the witchcraft of the said amy duny: for that the said amy hath been long reputed to be a witch and a person of very evil behaviour, whose kindred and relations have been many of them accused of witchcraft, and some of them have been condemned. the said deponent further saith, that not long after the death of her daughter elizabeth durent, she this deponent was taken with a lameness in both legs, from the knees down-ward, that she was fain to go upon crutches, and that she had no other use of them but only to bear a little upon them till she did remove her crutches, and so continued till the time of the assizes that the witch came to be tried, and was there upon her crutches; the court asked her, that at the time she was taken with this lameness, if it were with her according to the custom of women? her answer was, that it was so, and that she never had any stoppages of those things, but when she was with child. this is the substance of her evidence to this indictment. there was one thing very remarkable, that after she had gone upon crutches for upwards of years, and went upon them at the time of the assizes in the court when she gave her evidence, and upon the jury's bringing in their verdict, by which the said amy duny was found guilty, to the great admiration of all persons, the said dorothy durent was restored to the use of her limbs, and went home without making use of her crutches. as concerning elizabeth and deborah pacy, the first of the age of years, the other of the age of years or thereabouts: as to the elder, she was brought into the court at the time of the instructions given to draw up the indictments, and afterwards at the time of trial of the said prisoners, but could not speak one word all the time, and for the most part she remained as one wholly senseless, as one in a deep sleep, and could move no part of her body, and all the motion of life that appeared in her was, that as she lay upon cushions in the court upon her back, her stomach and belly, by the drawing of her breath, would arise to a great height: and after the said elizabeth had lain a long time on the table in the court, she came a little to herself and sat up, but could neither see nor speak, but was sensible of what was said to her, and after a while she laid her head on the bar of the court with a cushion under it, and her hand and her apron upon that, and there she lay a good space of time: and by the direction of the judge, amy duny was privately brought to elizabeth pacy, and she touched her hand: whereupon the child without so much as seeing her, for her eyes were closed all the while, suddenly leaped up, and catched amy duny by the hand, and afterwards by the face; and with her nails scratched her till blood came, and would by no means leave her till she was taken from her, and afterwards the child would still be pressing towards her, and making signs of anger conceived against her. deborah the younger daughter was held in such extreme manner, that her parents wholly despaired of her life, and therefore could not bring her to the assizes. _the evidence which was given concerning these two children was to this effect._ samuel pacy, a merchant of leystoff aforesaid (a man who carried himself with much soberness during the trial, from whom proceeded no words either of passion or malice though his children were so greatly afflicted), sworn and examined, deposeth. that his younger daughter deborah, upon thursday the th of october last, was suddenly taken with a lameness in her legs, so that she could not stand, neither had she any strength in her limbs to support her, and so she continued until the th day of the same month, which day being fair and sunshiny, the child desired to be carried on the east part of the house to be set upon the bank which looketh upon the sea; and whilst she was sitting there, amy duny came to this deponent's house to buy some herrings, but being denied she went away discontented, and presently returned again, and was denied, and likewise the third time and was denied as at first; and at her last going away, she went away grumbling; but what she said was not perfectly understood. but at the very same instant of time, the child was taken with most violent fits, feeling most extreme pains in her stomach, like the pricking of pins, and shrieking out in a most dreadful manner like unto a whelp; and not like unto a sensible creature. and in this extremity the child continued to the great grief of the parents until the th of the same month. during this time this deponent sent for one dr. feavor, a doctor of physic, to take his advice concerning his child's distemper; the doctor being come, he saw the child in those fits but could not conjecture, as he then told this deponent, and afterwards affirmed in open court, at this trial, what might be the cause of the child's affliction. and this deponent farther saith, that by reason of the circumstances aforesaid, and in regard amy duny is a woman of ill-fame, and commonly reported to be a witch and sorceress, and for that the said child in her fits would cry out of amy duny as the cause of her malady, and that she did affright her with apparitions of her person (as the child in the intervals of her fits related) he this deponent did suspect the said amy duny for a witch, and charged her with the injury and wrong to his child, and caused her to be set in the stocks on the th of the same october: and during the time of her continuance there, one alice letteridge and jane buxton demanding of her, as they also affirmed in court upon their oaths, what should be the reason of mr. pacy's child's distemper? telling her, that she was suspected to be the cause thereof; she replied, 'mr. pacy keeps a great stir about his child, but let him stay until he hath done as much by his children, as i have done by mine.' and being further examined, what she had done to her children? she answered, 'that she had been fain to open her child's mouth with a tap to give it victuals.' and the said deponent further deposeth, that within two days after speaking of the said words, being the th of october, the eldest daughter elizabeth, fell into extreme fits, insomuch, that they could not open her mouth to give her breath, to preserve her life, without the help of a tap which they were enforced to use; and the younger child was in the like manner afflicted, so that they used the same also for her relief. and further the said children being grievously afflicted would severally complain in their extremity, and also in the intervals, that amy duny (together with one other woman whose person and clothes they described) did thus afflict them, their apparitions appearing before them, to their great terror and affrightment: and sometimes they would cry out, saying, there stands amy duny, and there rose cullender, the other person troubling them. their fits were various, sometimes they would be lame on one side of their bodies, sometimes on the other: sometimes a soreness over their whole bodies, so as they could endure none to touch them: at other times they would be restored to the perfect use of their limbs, and deprived of their hearing; at other times of their sight, at other times of their speech; sometimes by the space of one day, sometimes for two; and once they were wholly deprived of their speech for eight days together and then restored to their speech again. at other times they would fall into swoonings, and upon the recovery to their speech they would cough extremely, and bring up much phlegm, and with the same crooked pins, and one time a two-penny nail with a very broad head, which pins (amounting to forty or more) together with the two-penny nail, were produced in court, with the affirmation of the said deponent, that he was present when the said nail was vomited up, and also most of the pins. commonly at the end of every fit they would cast up a pin, and sometimes they would have four or five fits in one day. in this manner the said children continued with this deponent for the space of two months, during which time in their intervals this deponent would cause them to read some chapters in the new testament. whereupon this deponent several times observed, that they would read till they came to the name of lord, or jesus, or christ; and then before they could pronounce either of the said words they would suddenly fall into their fits. but when they came to the name of satan, or devil, they would clap their fingers upon the book, crying out, this bites, but makes me speak right well. at such time as they be recovered out of their fits (occasioned as this deponent conceives upon their naming of lord, jesus, or christ), this deponent hath demanded of them, what is the cause they cannot pronounce those words: they reply and say, that amy duny saith, i must not use that name. and further, the said children after their fits were past, would tell, how that amy duny and rose cullender would appear before them holding their fists at them, threatening, that if they related either what they saw or heard, that they would torment them ten times more than ever they did before. in their fits they would cry out, there stands amy duny or rose cullender; and sometimes in one place and sometimes in another running with great violence to the place where they fancied them to stand, striking at them as if they were present; they would appear to them sometimes spinning, and sometimes reeling, or in other postures, deriding or threatening them. afterwards the witness sent the children to the house of margaret arnold, his sister, at yarmouth, to make trial whether the change of air might do them any good. _margaret arnold_ gave no credit to what was related to her when the children were committed to her care, 'conceiving that possibly the children might use some deceit in putting pins in their mouths themselves'; she therefore 'took all the pins out of their clothes, and sewed them all instead'; but 'notwithstanding all this care and circumspection of hers,' they raised at least thirty pins in her presence, and had most violent fits. they would cry out in their fits, against rose cullender and amy duny, alleging that they saw them. at some times the children (only) would see things run up and down the house in the appearance of mice; and one of them suddenly snapt one with the tongs, and threw it in the fire, and it screeched out like a rat. at another time a little thing like a bee flew into the face of the younger child when she was out of doors, and would have gone into her mouth; the child ran screaming into the house and had a fit, and vomited up a two-penny nail with a broad head, which she said the bee had tried to put in her mouth. the elder child said she saw a mouse, and crept under the table to look for it, and she found something, the witness did not see what it was, which she threw into the fire, when it flashed like gunpowder. at a time when she was speechless, but otherwise in good health, she appeared to chase something round the house, catch it, put it in her apron, and made as if she threw it in the fire, but the witness saw nothing. the child afterwards being restored to her speech said it was a duck. the younger child said that in her fits amy duny tempted her to drown herself, and to cut her throat, or otherwise destroy herself. for these reasons the witness believed that the children were bewitched, though she had not believed it at first. _edmund durent_, the father of ann durent, swore that rose cullender came to his house in the previous november to buy some herrings of his wife, but being denied by her, returned in a discontented manner. on the first of december his daughter felt a great pain in her stomach, fell into swooning fits, and on her recovery declared that she had seen the apparition of rose cullender, who threatened to torment her. she had also vomited up pins, which were produced in court. the maid was present in court, but could not speak to declare her knowledge, but fell into the most violent fit when she was brought before rose cullender. _ann baldwin_ corroborated the last witness, and added that jane bocking was so weak that she could not be brought to the assizes. _diana bocking_, the mother of jane bocking, swore that her daughter had formerly suffered from fits, but had recovered from them. on the first of february last, however, she had been attacked with fits which lasted till the witnesses came to the assizes, vomiting pins daily, seven last sunday. in her fits she would frequently complain of rose cullender and amy duny, saying that she saw them standing about the bed. at last she was stricken dumb for some days, and said when she recovered that amy duny would not suffer her to speak. _mary chandler_, the mother of susan chandler, swore that she had examined the prisoners after they had been examined before sir edmund bacon, on a charge of having bewitched mr. pacy's daughters, and that she had found certain monstrous growths on the body of rose cullender. she also said that rose cullender had appeared to her daughter, who was in service, one morning while she was washing, whereupon she was frightened and came at once and told her mother; and soon afterwards was attacked by fits, vomiting pins, like the others. she was at times dumb, and at times blind, and when she was brought into court, she was attacked anew, although she recovered her speech outside. this was the sum and substance of the evidence which was given against the prisoners concerning the bewitching of the children before mentioned. at the hearing this evidence there were divers known persons as mr. serjeant keeling,[ ] mr. serjeant earl, and mr. serjeant barnard present. mr. serjeant keeling seemed much unsatisfied with it, and thought it not sufficient to convict the prisoners: for admitting that the children were in truth bewitched, yet said he, it can never be applied to the prisoners, upon the imagination only of the parties afflicted; for if that might be allowed no person whatsoever can be in safety, for perhaps they might fancy another person, who might altogether be innocent in such matters. there was also _dr. brown_[ ] of norwich, a person of great knowledge; who after this evidence given, and upon view of three persons in court, was desired to give his opinion, what he did conceive of them: and he was clearly of opinion, that the persons were bewitched; and said, that in denmark there had been lately a great discovery of witches, who used the very same way of afflicting persons, by conveying pins into them, and crooked as these pins were, with needles and nails. and his opinion was, that the devil in such cases did work upon the bodies of men and women, upon a natural foundation (that is), to stir up, and excite such humours super-abounding in their bodies to a great excess, whereby he did in an extraordinary manner afflict them with such distempers as their bodies were most subject to, as particularly appeared in these children; for he conceived, that these swooning fits were natural, and nothing else, but only heightened to a great excess by the subtilty of the devil, co-operating with the malice of these which we term witches, at whose instance he doth these villanies. besides the particulars above mentioned touching the said persons bewitched, there were many other things objected against them for a further proof and manifestation that the said children were bewitched. as first, during the time of the trial, there were some experiments made with the persons afflicted, by bringing the persons to touch them; and it was observed, that when they were in the midst of their fits to all men's apprehension wholly deprived of all sense and understanding, closing their fists in such manner, as that the strongest man in court could not force them open; yet by the least touch of one of these supposed witches, rose cullender by name, they would suddenly shriek out opening their hands, which accident would not happen by the touch of any other person. and lest they might privately see when they were touched by the said rose cullender, they were blinded with their own aprons, and the touching took the same effect as before. there was an ingenious person that objected, there might be a great fallacy in this experiment, and there ought not to be any stress put upon this to convict the parties, for the children might counterfeit this their distemper, and perceiving what was done to them they might in such manner suddenly alter the motion and gesture of their bodies, on purpose to induce persons to believe that they were not natural, but wrought strangely by the touch of the prisoners. wherefore to avoid this scruple it was privately desired by the judge, that the lord cornwallis, sir edmund bacon, and mr. serjeant keeling, and some other gentlemen there in court, would attend one of the distempered persons in the farther part of the hall, whilst she was in her fits, and then to send for one of the witches, to try what would then happen, which they did accordingly: and amy duny was conveyed from the bar and brought to the maid: they put an apron before her eyes, and then one other person touched her hand, which produced the same effect as the touch of the witch did in the court. whereupon the gentlemen returned, openly protesting, that they did believe the whole transaction of this business was a mere imposture. this put the court and all persons into a stand. but at length mr. pacy did declare, that possibly the maid might be deceived by a suspicion that the witch touched her when she did not. for he had observed divers times, that although they could not speak, but were deprived of the use of their tongues and limbs, that their understandings were perfect, for that they had related divers things which have been when they were in their fits, after they had recovered out of them. this saying of mr. pacy was found to be true afterwards when his daughter was fully recovered (as she afterwards was) as shall in due time be related: for she was asked, whether she did hear and understand anything that was done and acted in the court, during the time that she lay as one deprived of her understanding? and she said, she did: and by the opinions of some, this experiment (which others would have a fallacy) was rather a confirmation that the parties were really bewitched, than otherwise: for say they, it is not possible that any should counterfeit such distempers, being acquainted with such various circumstances, much less children; and for so long time, and yet undiscovered by their parents and relations: for no man can suppose that they should all conspire together (being out of several families, and as they affirm, no way related one to the other, and scarce of familiar acquaintance) to do an act of this nature whereby no benefit or advantage could redound to any of the parties, but a guilty conscience for perjuring themselves in taking the lives of two poor simple women away, and there appears no malice in the case. for the prisoners themselves did scarce so much as object it. wherefore, said they, it is very evident that the parties were bewitched, and that when they apprehend or understand by any means, that the persons who have done them this wrong are near, or touch them; then their spirits being more than ordinarily moved with rage and anger at them being present, they do use more violent gestures of their bodies, and extend forth their hands, as desirous to lay hold upon them; which at other times not having the same occasion, the instance there falls not out the same. additional witnesses were afterwards called to prove other acts of witchcraft by the prisoners. _john soam_,'a yeoman, and a sufficient person,' deposed that one harvest he had three carts, and that as they were going into the field to load, one of them wrenched the window of rose cullender's house, whereupon she came out in a great rage, and threatened him. afterwards the two carts that had not touched the house twice made the journey home loaded and back again, safely. but the cart that had touched the house was overturned twice or thrice that day after it was loaded; and as they brought it through the gate out of the field it stuck so fast that they had to cut down the gate-post, 'although they could not perceive that the cart did of either side touch the gate-posts.' and further, after they had got it through the gate-way, they did with much difficulty get it home into the yard; but for all that they could do, they could not get the cart near unto the place where they should unload the corn, but were fain to unload it at a great distance from the place, and when they began to unload they found a great difficulty therein, it being so hard a labour that they were tired that first came; and when others came to assist them, their noses burst forth a bleeding; so they were fain to desist and leave it until the next morning, and then they unloaded it without any difficulty at all. _robert sherringham_ swore that about two years before, as he was passing along the street with his cart and horse, the axle-tree of his cart touched rose cullender's house, and broke down some part of it, at which she was very much displeased, threatening him that his horses should suffer for it; and it so happened that all those horses, being four in number, died within a short time after; since that time he hath had great losses by the sudden dying of his other cattle; so soon as his sows pigged, the pigs would leap and caper, and immediately fall down and die. also not long after he was taken with a lameness in his limbs that he could neither go nor stand for some days. after all this, he was very much vexed with great number of lice of an extraordinary bigness, and although he many times shifted himself, yet he was not anything the better, but would swarm again with them; so that in the conclusion he was forced to burn all his clothes, being two suits of apparel, and then was clean from them. _richard spencer_, about the first of september last, heard amy duny say that the devil would not let her rest until she was revenged on the wife of one cornelius sandeswell. _ann sandeswell_ says that seven or eight years since, she having bought a certain number of geese, meeting with amy duny, she told her, if she did not fetch her geese home they would all be destroyed; which in a few days after it came to pass. afterwards the said amy became tenant to the witness's husband for a house, and amy told the witness that if she did not look well to such a chimney in the house it would fall, whereupon the witness told her that it was a new one, and they parted without the witness attaching much importance to the matter; but in a short time the chimney fell down according as the said amy had said. also the witness once asked her brother, who was a fisherman, to send her a firkin of fish, which he did; and she hearing that the firkin was brought into lowestofft road, asked a boatman to bring it ashore with other goods which they had to bring; and as she was going down to meet the boat-man to receive her fish, she desired the said amy to go along with her to help her home with it; amy replied she would go when she had it. and thereupon this deponent went to the shore without her, and demanded of the boat-man the firkin; they told they could not keep it in the boat from falling into the sea, and they thought it was gone to the devil, for they never saw the like before. and being demanded whether any other goods in the boat were likewise lost as well as hers? they answered not any. this was the substance of the whole evidence given against the prisoners at the bar; who being demanded, what they had to say for themselves? they replied, nothing material to anything that was proved against them. whereupon the judge, in giving his direction to the jury, told them, that he would not repeat the evidence unto them, lest by so doing he should wrong the evidence on the one side or on the other. only this acquainted them, that they had two things to enquire after. first, whether or no these children were bewitched? secondly, whether the prisoners at the bar were guilty of it? that there were such creatures as witches he made no doubt at all; for first, the scriptures had affirmed so much. secondly the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime. and such hath been the judgment of this kingdom, as appears by that act of parliament which hath provided punishments proportionable to the quality of the offence. and desired them, strictly to observe their evidence; and desired the great god of heaven to direct their hearts in this weighty thing they had in hand: for to condemn the innocent, and to let the guilty go free, were both an abomination to the lord. with this short direction the jury departed from the bar, and within the space of half an hour returned, and brought them in both guilty upon the several indictments, which were thirteen in number, whereupon they stood indicted. this was upon thursday in the afternoon, march , . the next morning, the three children with their parents came to the lord chief-baron hales's lodging, who all of them spake perfectly, and were in as good health as ever they were; only susan chandler by reason of her very much affliction did look very thin and wan. and their friends were asked at what time they were restored thus to their speech and health? and mr. pacy did affirm, that within less than half an hour after the witches were convicted they were all of them restored, and slept well that night, feeling no pain; only susan chandler felt a pain like pricking of pins in her stomach. after, they were all of them brought down to the court, but ann durent was so fearful to behold them, that she desired she might not see them. the other two continued in the court, and they affirmed in the face of the country, and before the witches themselves, what before hath been deposed by their friends and relations; the prisoners not much contradicting them. in conclusion, the judge and all the court were fully satisfied with the verdict, and thereupon gave judgment against the witches that they should be hanged. they were much urged to confess, but would not. that morning we departed for cambridge, but no reprieve was granted; and they were executed on monday the th of march following, but they confessed nothing. footnotes: [ ] witchcraft, always an ecclesiastical offence, was first made a statutory crime by hen. viii. ( ), which hutchinson suggests was intended as 'a hank upon the reformers,' by reason of the part which mentioned the pulling down of crosses. this act was repealed on the accession of edward vi., but was revived by eliz. c. in a slightly different form. hutchinson mentions five convictions under this statute between and . a new act was passed in , the first year of the reign of james i. under it seventeen persons were condemned to death in lancashire in on the evidence of one witness, who afterwards admitted his imposture. their lives were saved by the judge who tried the case. in the eastern counties about fifty persons were executed in and . various other cases were tried throughout the seventeenth century, of which a list is given by hutchinson, and the last conviction took place in , at hertford, but the prisoner was pardoned. the act of james was repealed in , when it was enacted that no more prosecutions for witchcraft should take place, but that pretending to exercise witchcraft, and so forth, should be offences punishable on the same scale as other acts of petty cheating. further information on the subject may be found in hutchinson's _essay on witchcraft_; and an account of the very curious outburst of prosecutions for witchcraft in new england about the time of this trial, and, it is said, partly in consequence of it, may be found in howell's _state trials_, vol vi. pp. - . in those parts of the british empire where there is a large population of negroes, it has been found necessary to make stringent laws against witchcraft, which are regarded by the persons most affected by them as something much more than a protection against mere cheats. [ ] sir matthew hale ( - ) was the grandson of a gloucestershire weaver. he was educated as a puritan and entered magdalen hall, oxford, in . he here suddenly dropped his puritan habits, and would have become a soldier in the low countries, but that, having to consult the learned glanville as to legal proceedings taken against him which endangered his patrimony, he was persuaded to become a law student. he again resumed a quiet method of life, and owing to the slovenliness of his dress narrowly escaped being shipped to the west indies by a press-gang. he was called in , and already enjoying a considerable reputation at once acquired a lucrative practice. he devilled for noy, but according to campbell refused to follow him when he joined the court party. he kept clear of politics at the beginning of the long parliament, though courted by both sides. he is said to have taken part in strafford's defence; he certainly defended laud. he took the covenant in , and sat in the westminster assembly of divines. he procured honourable terms for the garrison of oxford on the capture of that town. he took the engagement to be true to the commonwealth in , and continued to practise, often appearing for the defence in state prosecutions; particularly for the duke of hamilton after the battle of worcester. he took a prominent part in the commission appointed to reform the laws, which abolished feudal tenures and caused all legal proceedings to be conducted in english. he became a justice of the common pleas in , when he was occasionally brought into opposition to the government. at last he refused to try criminal causes; particularly that of colonel penruddock (see _post_, p. ). he supported cromwell against the sectaries. he was summoned to act as assessor to cromwell's house of lords; but refused to act as a judge under richard cromwell, though he sat in his parliament. he sat for gloucestershire in the convention parliament, and took an active part in the restoration. he sat at the trial of the regicides, though not at vane's. on bridgman becoming chief-justice of the common pleas in , hale succeeded him as chief-baron, his appointment being due, it is said, to clarendon's scheme for having the comprehension bill, which he had drafted, defeated. he became lord chief-justice in , in succession to kelyng. he has the reputation of being one of the greatest judges in english history. he settled satisfactorily all claims arising out of the rebuilding of london after the great fire; he found himself unable to help bunyan, whom he considered to have been unjustly imprisoned, thereby, according to campbell, being entitled to some of the credit attaching to the production of _the pilgrim's progress_. on the failure of his health he retired from the bench in . it may be of interest to quote campbell's opinion of his conduct of the present trial. 'i wish to god,' says that author, 'i could as successfully' (as he has done in bunyan's case) 'defend the conduct of sir matthew hale in a case to which i most reluctantly refer, but which i dare not, like bishop burnet, pass over unnoticed--i mean the famous trial before him, at bury st. edmunds, for witchcraft. i fostered a hope that i should have been able, by strict inquiry, to contradict, or mitigate, the hallucination under which he is generally supposed to have then laboured, and which has clouded his fame--even in some degree impairing the usefulness of that bright example of christian piety which he has left for the edification of mankind. but i am much concerned to say, that a careful perusal of the proceedings and of the evidence shows that upon this occasion he was not only under the influence of the most vulgar credulity, but that he violated the plainest rules of justice, and that he really was the murderer of two innocent women.... had the miserable wretches, indicted for witchcraft before sir matthew hale, pleaded guilty, or specifically confessed the acts of supernatural agency imputed to them, or if there had been witnesses who had given evidence, however improbable it might be, to substantiate the offence, i should hardly have regarded the judge with less reverence because he pronounced sentence of death upon the unhappy victims of superstition, and sent them to the stake, or the gibbet. but they resolutely persisted in asserting their innocence, and there was not only no evidence against them which ought to have weighed in the mind of any reasonable man who believed in witchcraft, but during the trial the imposture practised by the prosecutors was detected and exposed.' 'hale's motives were most laudable; but he furnishes a memorable instance of the mischiefs originating from superstition. he was afraid of an acquittal or of a pardon, lest countenance should be given to a disbelief in witchcraft, which he considered tantamount to a disbelief in christianity. the following sunday he wrote a "meditation concerning the mercy of god in preserving us from the malice and power of evil angels," in which he refers, with extreme complacency, to the trial over which he had presided at bury st. edmunds.' [ ] see _ante_, p. . [ ] sir thomas browne ( - ) was the well-known author of _religio medici_, published in ; _vulgar errors_, published in ; and numerous other mystic, pseudo-scientific and philosophical works. mr. leslie stephen (_hours in a library_, vol. ii. p. ) writes of him: 'obviously we shall find in sir thomas browne no inexorably severe guide to truth; he will not too sternly reject the amusing because it happens to be slightly improbable, or doubt an authority because he sometimes sanctions a mass of absurd fables.' so he more or less believed in the griffin, the phoenix, and the dragon: he knew that the elephant had no joints, and was caught by cutting down the tree against which he leant in sleep; that the pelican pierced its breast for the good of its young; that storks refused to live except in republics or free states; and that men were struck dumb, literally dumb, by the sight of a wolf: he discusses what would have happened had adam eaten the apple of the tree of life before that of the tree of knowledge; he discovers error in every recorded speech but one delivered before the flood; he admits that the phoenix is mentioned in holy writers, and alluded to in job and the psalms, but nevertheless adduces eight reasons for not believing in his existence, of which one is that no one has seen one, another that in the scriptures the word translated phoenix also means a palm-tree, another that he could neither enter the ark in a pair, nor increase and multiply. at the same time, he probably possessed a considerable knowledge of physical science, and holds a high, though peculiar, position in english literature. evidently he was not a suitable witness in the present case, and his appearance as recorded above is far the most unamiable thing known of him; but it is possible that his neighbours did not take him more seriously as a trustworthy authority than do his modern critics. alice lisle alice lisle was the daughter and heiress of sir white bechenshaw of moyles court, ellingham, hants, the scene of the principal facts referred to in this trial. the house is still standing. in she became the second wife of john lisle; he was called to the bar, and became a bencher of the middle temple. he sat in the long parliament for winchester, was one of the managers of charles i.'s trial, and is said to have drawn up the form of the sentence. he became president of the high court of justice in , sat in the parliament of that year, and was appointed one of the commissioners of the exchequer. he appears to have been a consistent follower of cromwell, and became a member of his house of lords in . he left england on the restoration and fled to lausanne, where he was murdered by an irish royalist in . he sentenced john penruddock, the father of the colonel penruddock of this trial, to death in for his participation in an unsuccessful rising against the commonwealth in wiltshire. alice lisle, commonly called lady lisle, was tried for high treason at winchester on th august , before lord chief-justice jeffreys,[ ] during his notorious 'bloody assize.' the charge against her was that knowing one george hicks, a popular dissenting minister, to have been in monmouth's army at sedgemoor she entertained and concealed him in her house at moyles court. to convict her it was necessary to prove that hicks had been in monmouth's army, that she knew it, and that she entertained and concealed him. the prosecution was conducted by pollexfen,[ ] mundy, and corriton, as far at least as it was not conducted by jeffreys. lady lisle, according to the custom of the time, was not allowed counsel, though no doubt she had opportunities for receiving legal advice during the course of the trial. hicks was afterwards tried, and hanged at glastonbury.[ ] the first three witnesses were pope, fitzherbert, and taylor, who were visited by hicks and monmouth's chaplain, apparently for more or less charitable purposes, when they were prisoners to monmouth's army in sir thomas bridge's stables at keynsham. two of them also spoke to having seen him actually in monmouth's army. _james dunne_ was then sworn. pollexfen--if your lordship please to observe, the times will fall out to be very material in this case: the battle at kings-edgemore was the sixth of july; three or four days afterwards was the taking of monmouth, and my lord grey at ringwood; upon the th of july, ten or twelve days after the taking of monmouth, was this message sent by dunne to mrs. lisle: so we call dunne to prove what message he carried upon the th, and what answer was returned; he will tell you that tuesday was the time appointed for them to come, in the night, and all the other circumstances. but withal, i must acquaint your lordship, that this fellow, dunne, is a very unwilling witness; and therefore with submission to your lordship, we do humbly desire your lordship would please to examine him a little the more strictly. lord chief-justice--you say well: hark you, friend, i would take notice of something to you, by the way, and you would do well to mind what i say to you. according as the counsel that are here for the king seem to insinuate, you were employed as a messenger between these persons, one whereof has already been proved a notorious rebel, and the other is the prisoner at the bar, and your errand was to procure a reception at her house for him. dunne--my lord, i did so. lord chief-justice--very well. now mark what i say to you, friend: i would not by any means in the world endeavour to fright you into anything, or any ways tempt you to tell an untruth, but provoke you to tell the truth, and nothing but the truth, that is the business we come about here. know, friend, there is no religion that any man can pretend to, can give a countenance to lying, or can dispense with telling the truth: thou hast a precious immortal soul, and there is nothing in the world equal to it in value: there is no relation to thy mistress, if she be so; no relation to thy friend; nay, to thy father or thy child; nay, not all the temporal relations in the world can be equal to thy precious immortal soul. consider that the great god of heaven and earth, before whose tribunal thou, and we, and all persons are to stand at the last day, will call thee to an account for the rescinding his truth, and take vengeance of thee for every falshood thou tellest. i charge thee therefore, as thou wilt answer it to the great god, the judge of all the earth, that thou do not dare to waver one tittle from the truth, upon any account or pretence whatsoever: for though it were to save thy life, yet the value of thy precious and immortal soul is much greater, than that thou shouldst forfeit it for the saving of any the most precious outward blessing thou dost enjoy; for that god of heaven may justly strike thee into eternal flames, and make thee drop into the bottomless lake of fire and brimstone, if thou offer to deviate the least from the truth, and nothing but the truth. according to the command of that oath that thou hast taken, tell us who employed you, when you were employed, and where? who caused you to go on this message, and what the message was? for i tell thee god is not to be mocked, and thou canst not deceive him, though thou mayst us. but i assure you if i catch you prevaricating in any the least tittle (and perhaps i know more than you think i do; no, none of your saints can save your soul, nor shall they save your body neither) i will be sure to punish every variation from the truth that you are guilty of. now come and tell us, how you came to be employed upon such a message, what your errand was, and what was the issue and result of it? dunne then proceeds to depose that a man came to his house to desire him to go with a message to lady lisle; he came on a friday, after the battle; he was a short black man, and promised a good reward. on saturday dunne went to moyles court, and lady lisle agreed to receive hicks on tuesday evening. he was pressed as to whether she asked if he knew hicks-- lord chief-justice--why dost thou think that she would entertain any one she had no knowledge of merely upon thy message? mr. dunne! mr. dunne! have a care, it may be more is known of this matter than you think for.[ ] dunne--my lord, i tell you the truth. lord chief-justice--ay, to be sure you do, do not let me take you prevaricating! dunne--my lord, i speak nothing but the truth. lord chief-justice--well, i only bid you have a care, truth never wants a subterfuge, it always loves to appear naked, it needs no enamel, nor any covering; but lying and snivelling, and canting, and hicksing, always appear in masquerade. come, go on with your evidence. dunne then proceeds--he went home, arriving on sunday, and gave his message to the man he first saw, and on tuesday morning he, and a 'full fat black man,' and a 'thin black man,' came to his house at seven in the morning. starting with two of them whom he had not seen before, but identified as hicks and nelthorp, at eleven, he took them by way of deverel, chilmark and sutton to salisbury plain, where one barter met them to guide them on, by chalk, rochesborne and fordingbridge. this way he alleged, apparently falsely, was a shorter way than he had taken on saturday. near barton, however, they lost their way, and dunne was sent down to the village to a man to tell him that one hicks desired to speak to him. who the man was, he hesitated to say. dunne--his name, my lord, i cannot rightly tell for the present. lord chief-justice--prithee recollect thyself: indeed thou canst tell us if thou wilt. dunne--my lord, i can go to the house again if i were at liberty. lord chief-justice--i believe it, and so could i; but really neither you nor i can be spared at present; therefore prithee do us the kindness now to tell us his name. dunne--my lord, i think his name was fane. lord chief-justice--thou sayest right, his name was fane truly, thou seest i know something of the matter.[ ] dunne brought fane to hicks, who asked him the way to mrs. lisle's. lord chief-justice--now tell us what kind of man that was, that desired this of mr. fane? dunne--my lord, it was the full fat black man. lord chief-justice--now we have got him out, now we know which was hicks, now go on. on arriving at mrs. lisle's, hicks and nelthorp entered first in the dark; dunne did not see them again till they were taken. dunne was received by a young girl he did not know. he had 'a bit of cake and cheese from my own house, and that i eat': he did not see mrs. lisle. so far, jeffreys had been conducting an examination-in-chief, or what served the same purpose. now the cross-examination begins--dunne was forced to take the word of the first man who came to him that he would be paid. he was a baker, and would not bake on sundays. lord chief-justice--alack-a-day! thou art precise in that, but thou canst travel on sundays to lead rogues into lurking holes ... but i assure thee thy bread is very light weight, it will scarce pass the balance here. he left his horse in the stable, the other two left theirs outside the gate. he knew there were fugitives about the country; he did not ask the little man with the black beard who hicks was. hicks told him he was in debt. did not the man who first came tell him hicks was in debt and wanted to be concealed? he did. how came dunne to be so impudent then as to tell such a lie? dunne--i beg your pardon, my lord. lord chief-justice--you beg my pardon! that is not because you told me a lye, but because i found you in a lye. come sirrah, tell me the truth. where did dunne sleep? in a chamber to which the girl showed him, he saw no one else; he put up his horse himself and fed him on hay which was in the rack; the stable-door was latched; he pulled up the latch. he knew his way to the stable, because he had been there before--even though it was dark. carpenter the bailiff gave his horse hay and brought a light to the stable after he had gone there. besides carpenter and the girl he saw no one. he did not drink in the house; he had last drunk at barton. lord chief-justice--now prithee tell me truly, where came carpenter unto you? i must know the truth of that; i would not terrify thee to make thee say anything but the truth, but assure thyself i never met with a lying, sneaking, canting fellow, but i always treasured up vengeance for him; and therefore look to it, that thou dost not prevaricate with me, for be sure thou wilt come by the worst of it in the end. dunne--my lord, i will tell the truth as near as i can. carpenter met him in the court when he was with hicks and nelthorp; no one else was there; carpenter opened the stable-door. lord chief-justice--why thou vile wretch, didst thou not tell me just now that thou pluckedst up the latch? dost thou take the god of heaven not to be a god of truth, and that he is not a witness of all thou sayest? dost thou think because thou prevaricatest with the court here thou canst do so with the god above who knows thy thoughts? and it is infinite mercy, that, for these falsehoods of thine, he does not immediately strike thee into hell! jesus god!... did you not tell me that you opened the latch yourself and that you saw nobody else but a girl? how durst you offer to tell such horrid lies in the presence of god and of a court of justice? answer me one question more. did he pull down the hay or you? dunne did not pull down any hay; carpenter took him into the house and to his room; but no one asked him to eat or drink; he did not know what became of the others' horses. jeffreys--did you tell carpenter that the horses were there? dunne--i did not tell him any such thing. lord chief-justice--thou art a strange, prevaricating, shuffling, sniveling lying rascal. _barter_ was then called and sworn. having been duly threatened he deposed that dunne came to his house on saturday; he guided dunne to moyles court; dunne gave carpenter a letter. carpenter would not meddle with it; dunne went in to my lady. he went into the kitchen where my lady came in, and she asked if he could make bricks; she went up to dunne 'laughing with him and looked at me.' he asked dunne what she laughed at. dunne said she asked if he knew anything of 'the concern,' and he, dunne, answered no, and that this was what she laughed at. he was thereupon disturbed, and consulted colonel penruddock. it was agreed between them that he should guide dunne and his friends across salisbury plain and that the colonel should intercept them there; this plan, however, failed, and he left them when they insisted on going 'a private way over the fording bridge towards moyles court,' sending word, however, to colonel penruddock that they were at the house. dunne told him that the men he was to guide had 'half a score of thousands of pounds a year a piece.' 'he' (dunne) 'told me he had a very fine booty for his part, and that he should never want money again, that i should be very well paid, and he gave me half-a-crown.' dunne is recalled, and denies that he gave carpenter a letter or spoke to barter of the wealth of the men he was to guide. lord chief-justice--then one thing more, did you not tell him that you told my lady when she asked whether he was acquainted with this concern, that he knew nothing of the business? dunne--my lord, i did tell him so. lord chief-justice--did you so? then you and i must have a little further discourse: come now and tell us what business was that? and tell it us so, that a man may understand and believe that thou dost speak truth. dunne--does your lordship ask what that business was? lord chief-justice--yes, it is a plain question; what was that business that my lady asked thee, whether the other man knew; and then you answered her, that he did know nothing of it? (then he paused awhile.) lord chief-justice--remember, friend, thou art upon thy oath; and remember, withall that it is not thy life, but thy soul that is now in danger; therefore i require from thee a plain answer to a very plain question: what was that business my lady enquired after, whether the other fellow knew, and thou toldest her, he did not? [dunne made no answer, but stood musing awhile.] lord chief-justice--he is studying and musing how he shall prevaricate; but thou hadst better tell the truth, friend; remember what thou hast said already; thou hast said that thou didst tell that man, that the lady asked you, whether he knew anything of the business, and thou toldest her, he did not? now i would know what that business was. [still he made no answer, but seemed to muse.] lord chief-justice--look thee, if thou canst not comprehend what i mean, i will repeat it to thee again; for thou shalt see what countryman i am,[ ] by my telling my story over twice; therefore i ask thee once again. thou sayedst thy lady asked thee, whether he knew of the business: and thou toldest her he did not. now let us know what that business was? dunne--i cannot mind it, my lord, what it was. lord chief-justice--but mind me, prithee: thou didst tell that honest man there, that my lady lisle asked thee, whether he knew anything of the business, and thou saidest no. what was that business? dunne--that business that barter did not know of? lord chief-justice--yes, that is the business; be ingenuous, tell the truth: oh! how hard the truth is to come out of a lying presbyterian knave. prithee, friend, consider the oath that thou hast taken, and that thou art in the presence of a god that cannot endure a lie, nor whose holiness will not admit him to dispense with a lie; consider that that god is an infinite being of purity, holiness and truth; and it would be inconsistent with his being to dispense with the least untruth; and thou hast called him to witness, that thou wouldest testify the truth, the whole truth, and nothing but the truth. i charge thee, therefore, as thou wilt answer it to that god of truth, and that thou mayest be called to do, for aught i know, the very next minute, and there thou wilt not be able to palliate the truth; what was that business you and my lady spoke of?--[then he paused for half a quarter of an hour, and at last said--] dunne--i cannot give an account of it, my lord. jeffreys continued for a long time to use and repeat every possible kind of threat without being able to draw anything from dunne; at last lord chief-justice--why, prithee, dost thou think thou dost thy lady a kindness by this way of proceeding? sure thou canst not think so; for such a sort of carriage were enough to convict her, if there were nothing else. dunne--truly, my lord, i do think not to do her any kindness at all. lord chief-justice--then prithee, let me persuade thee to have some kindness for thyself; look to thy own soul that is in great peril of everlasting ruin and destruction by these means; dost thou call this religion? it is a prodigious piece of religion! come pray tell me what business it was that you talked of? you should not have asked me a question so often, but i would have given you a plain answer, though i were under the obligation of an oath as you are. dunne--my lord, pray ask the question again once more and i will tell you. lord chief-justice--i will so, and i will ask it you with all the calmness, and seriousness, and candour, that i can; if i know my own heart, it is not in my nature to desire the hurt of anybody, much less to delight in their eternal perdition; no, it is out of tender compassion to you, that i use all these words: i would have thee to have some regard to thy precious and immortal soul, which is more valuable than the whole world; reflect upon that scripture again which i mentioned before, which must be true because it is the words of him that is truth itself: what shall it profit a man to gain the whole world, and lose his own soul? or what shall a man give in exchange for his soul? if that soul of thine be taken away, what is the body fit for, but, like a putrid carcase, to be thrust into and covered with the dust with which it was made: therefore i ask you, with a great desire that thou mayest free thyself from so great a load of falshood and perjury, tell me what the business was you told the prisoner the other man barter did not know. dunne--my lord, i told her, he knew nothing of our coming there. lord chief-justice--nay, nay, that can never be it, for he came along with thee. dunne--he did not know anything of my coming there till i met him on the way. lord chief-justice--prithee, mind my question; sure enough thou hadst told him whither thou wert going, or else he could not have been thy guide; so he must needs know of thy coming there: but what was the business thou told'st her, he did not know? dunne--she asked me whether i did not know that hicks was a nonconformist? lord chief-justice--did my lady lisle ask you that question? dunne--yes, my lord, i told her i did not. lord chief-justice--but that is not my question; what was that business that he did not know? dunne--it was the same thing; whether mr. hicks was a nonconformist. lord chief-justice--that cannot be all; there must be something more in it. dunne--yes, my lord, it is all; i know nothing more. lord chief-justice--what did she say to you when you told her, he did not know it? dunne--she did not say anything, my lord. lord chief-justice--why, dost thou think, that after all this pains, that i have been at to get an answer to my question, that thou canst banter me with such sham stuff as this? hold the candle to his face that we may see his brazen face. dunne--my lord, i tell you the truth. lord chief-justice--did she ask thee whether that man knew anything of a question she had asked thee, and that was only of being a nonconformist? dunne--yes my lord, that was all. lord chief-justice--that is all nonsense; dost thou imagine that any man hereabouts is so weak as to believe thee? dunne--my lord, i am so baulked, i do not know what i say myself. pollexfen here recalled barter, who said that dunne had told him that he had concealed the two men in his house for ten days, that it was the best job he had ever had in his life, and that he should never lack money again. all this dunne denied having said; barter, however, swore that he repeated it to colonel penruddock. _colonel penruddock_, being called and sworn, deposed that barter came to his house on monday morning and said he had been with dunne upon a journey to lady lisle's house to get entertainment for some people. they were going to meet him on tuesday between nine and eleven on salisbury plain, and colonel penruddock could take them there. he sent a servant to take them there, who missed them; and accordingly went with soldiers to lady lisle's house the next day, searched it, found hicks and dunne in the malt house, the latter having 'covered himself up with some sort of stuff there,' and nelthorp 'in a hole by the chimney.' lord chief-justice--dunne, how came you to hide yourself in the malt-house? dunne--when i heard the stir and bustle, i went through the chamber where i lay, and came into that room where i was taken. lord chief-justice--when thou heardst a stir and a bustle, why wert thou afraid of anything? dunne--my lord, i was frightened at the noise. lord chief-justice--prithee, what needst thou be afraid for, thou didst not know hicks nor nelthorp? and my lady only asked thee whether hicks were a nonconformist parson. thou art a very innocent soul, and surely need'st no occasion to be afraid. colonel penruddock did not remember barter telling him what he said he did, but barter said he apprehended the two men to be rebels, and 'that dunne told him as much.' lord chief-justice--what do you say to that, dunne? it seems you told barter that you apprehended them to be rebels? dunne--i apprehend them for rebels, my lord? lord chief-justice--no, no, you did not apprehend them for rebels, but you hid them for rebels. but did you say to barter that you took them to be rebels? dunne--i take them to be rebels! lord chief-justice--you blockhead, i ask you, did you tell him so? dunne--i tell barter so? lord chief-justice--ay, is not that a plain question? dunne--i am quite cluttered out of my senses; i do not know that i say (a candle being still held nearer his nose). lord chief-justice--but to tell the truth would rob thee of none of thy senses, if ever thou hadst any; but it should seem that neither thou, nor thy mistress the prisoner had any, for she knew nothing of it neither, though she had sent for them thither. colonel penruddock continuing, said he had some difficulty in getting admittance to lady lisle's house; he did not see her till after he had brought out hicks and dunne; she denied that anybody else was there, but he searched and found nelthorp. lord chief-justice--but she denied it [nelthorp's being there] first it seems? lisle--my lord, i hope i shall not be condemned without being heard. lord chief-justice--no, god forbid, mrs. lisle. that was a sort of practice in your husband's time, you know very well what i mean; but god be thanked it is not so now; the king's courts of law never condemn without hearing. _downing_ being called and sworn, deposed to finding dunne and hicks in the malt-house, the former in a little hole 'where he had taken some stuff or other to cover him.' _mrs. carpenter_, the bailiff's wife, spoke to serving the men who came on tuesday with supper in the chamber where they lay, and to mrs. lisle's presence there. _carpenter_ spoke to dunne's first arrival, when he asked for entertainment for hicks and another whom he did not know. after the carpenters had finished it appeared that dunne had given way. mr. rumsey--now, my lord, dunne says he will tell all, whether it makes for him or against him. lord chief-justice--let him but tell the truth, and i shall be satisfied. dunne--sure my lord, i never entertained these men a night in my house in my life; but this hicks sent that man to me to go to my lady lisle's, to know whether she would please to entertain him; and when i came my lady asked me whether he had been in the army or no? i told her i could not tell, i did not know that he was. she then asked me if he had nobody else with him? i told her i believed there was. this is the very truth of it, my lord. i asked her might the men be entertained? she said they might. so when we came to my lady lisle's on the tuesday night, somebody took the two horses, i cannot tell who if i were to die; the two went in; and after i had set up my horse, i went in along with carpenter up into the chamber to my lady, and to this hicks and nelthorp; and when i came there, i heard my lady bid them welcome to her house; and mr. carpenter or the maid, i cannot tell which, brought in the supper, and set it on the table. lord chief-justice--and didst thou eat or drink with them in the room or not? dunne--my lord, i will tell everything that i know; i confess i did both eat and drink there in the room. lord chief-justice--i pity thee with all my soul and pray to god almighty for thee, to forgive thee, and to the blessed jesus to mediate for thee; and i pray for thee with as much earnestness, as i would for my own soul; and i beg of thee once more, as thou regardest thy own eternal welfare, to tell all the truth. dunne--my lord, i did never know these men were in the army when i carried the message to my lady lisle's, nor never did entertain them in my house in my life time, so much as one night. lord chief-justice--prithee, i do not ask thee what thou didst not, but what thou didst? dunne--my lord, i will tell all i know. lord chief-justice--what discourse had you that night at the table in the room? dunne--i cannot tell what discourse truly, my lord, there was. lord chief-justice--was there nothing of coming beyond seas, who came from thence, and how they came? come i would have it rather the effect of thy own ingenuity, than lead thee by any questions i can propound; come tell us what was the discourse? dunne--i do not remember all the discourse. lord chief-justice--prithee let me ask thee one question, and answer me it fairly; didst thou hear nelthorp's name named in the room? dunne--my lord, i cannot tell whether he were called nelthorp, but it was either crofts or nelthorp, i am sure one of them. lord chief-justice--prithee, be ingenious, and let us have the truth on it. dunne--my lord, i am ingenious and will be so. lord chief-justice--i will assure you nelthorp told me all the story before i came out of town.[ ] dunne--i think, my lord, he was called nelthorp in the room, and there was some discourse about him. lord chief-justice--ay, there was unquestionably, and i know thou wert by, and that made me the more concerned to press upon thee the danger of forswearing thyself. dunne--my lady asked hicks who that gentleman was, and he said it was nelthorp, as i remember. lord chief-justice--very well, and upon that discourse with nelthorp, which i had in town, did i give particular direction, that the outlawry of nelthorp should be brought down hither, for he told me particularly of all the passages and discourses of his being beyond sea: i would not mention any such thing as any piece of evidence to influence this case, but i could not but tremble to think, after what i knew, that any one should dare so much to prevaricate with god and man, as to tell such horrid lyes in the face of a court. dunne--what does your lordship ask me? lord chief-justice--come i will ask thee a plain question; was there no discourse there about the battle, and of their being in the army? dunne--there was some such discourse, my lord. lord chief-justice--ay, prithee now tell us what that discourse was. dunne--my lord, i will tell you, when i have recollected it, if you will give me time till to-morrow morning. lord chief-justice--nay, but we cannot stay so long, our business must be dispatched now; but i would have all people consider, what a reason there is, that they should be pressed to join with me in hearty prayers to almighty god, that this sin of lying and perjury may never be laid at thy door. what say'st thou? prithee, tell us what the discourse was? dunne--my lord, they did talk of fighting, but i cannot exactly tell what the discourse was. lord chief-justice--and thou saidst thou didst eat and drink with them in the same room? dunne--i did so, my lord, i confess it. lord chief-justice--and it was not a little girl that lighted thee to bed, or conducted thee in? dunne--it was not a little girl. lord chief-justice--who was it then? dunne--it was mr. carpenter, my lord. lord chief-justice--and why didst thou tell us so many lyes then? jesu god! that we should live to see any such creatures among mankind, nay, and among us too, to the shame and reproach be it spoken of our nation and religion: is this that that is called the protestant religion, a thing so much boasted of, and pretended to? we have heard a great deal of clamour against popery and dispensations; what dispensations, pray, does the protestant religion give for such practices as these? i pity thee with all my soul, and pray for thee, but it cannot but make all mankind to tremble, and be filled with horror, that such a wretched creature should live upon the earth: prithee be free, and tell us what discourse there was. dunne--my lord, they did talk of fighting but i cannot remember what it was. lord chief-justice--did you lie with them? dunne--no, my lord, i did not. lord chief-justice--well i see thou wilt answer nothing ingenuously, therefore i will trouble myself no more with thee: go on with your evidence, gentlemen. mr. jennings--my lord, we have done, we have no more witnesses. _mrs. lisle_ is then called upon for her defence, and proceeds to say that had she been tried in london lady abergavenny and other persons of quality could have testified with what detestation she had spoken of the rebellion, and that she had been in london till monmouth was beheaded. she had denied nelthorp's being in the house because of her fear of the soldiers, who were very rude and violent and could not be restrained by their officers from robbery and plundering my house. and i beseech your lordship to make that construction of it; and i humbly beg of your lordship not to harbour an ill opinion of me, because of those false reports that go about of me relating to my carriage towards the old king, that i was any ways consenting to the death of king charles i., for, my lord, that is as false as god is true; my lord, i was not out of my chambers all the day in which that king was beheaded, and i believe i shed more tears for him than any woman then living did; and this the late countess of monmouth, and my lady marlborough, and my lord chancellor hyde, if they were alive, and twenty persons of the most eminent quality could hear witness for me. she did not know nelthorp, and only took hicks because he was a nonconformist minister, and there being warrants out against all such, she was willing to shelter him from them. she then called _creed_, who said that he heard nelthorp say that lady lisle did not know of his coming, and did not know his name, and that he did not tell his name till he was taken. lady lisle then concluded her defence by fresh protestations of her loyalty to the king. but though i could not fight for him myself, my son did, he was actually in arms on the king's side in this business. i instructed him always in loyalty, and sent him thither; it was i that bred him up to fight for the king. _jeffreys_ begins his summing up by reminding the jury of the terms of their oath and reminding them of their duty-- that not any thing can move you either to compassion of the prisoner on the one hand, or her allegations and protestations of innocence; nor, on the other hand, to be influenced by anything that comes from the court, or is insinuated by the learned counsel at the bar, but that you will entirely consider what evidence has been given to you, and being guided by that evidence alone, you that are judges of the fact will let us know the truth of that fact, by a sincere and upright verdict. he goes on to dwell on the wickedness of monmouth's rebellion, and the mercy of god as shown in the restoration of charles ii. and the best of religions, the true protestant reformed religion, the religion established by law, which now is, and i hope will ever remain established among us, as now professed and practised in the church of england. after dwelling on this and on the blessing of having asked so steadfast a supporter of the church of england as james ii., he proceeds to discuss the actual facts of the case. this person, mrs. lisle, the prisoner at the bar, she is accused for receiving and harbouring this person: and gentlemen, i must tell you for law, of which we are the judges, and not you, that if any person be in actual rebellion against the king and another person (who really and actually was not in rebellion) does receive, harbour, comfort and conceal him that was such, a receiver is as much a traitor as he who indeed bore arms: we are bound by our oaths and consciences, to deliver and declare to you what is law; and you are bound by your oaths and consciences to deliver and declare to us, by your verdict, the truth of the fact. gentlemen, that he [hicks] was there in rebellion, is undeniably and unquestionably proved: that there are sufficient testimonies to satisfy you that this woman did receive and harbour him, is that which is left to your consideration; and, for that the proofs lie thus: and truly i am sorry to have occasion for repeating the circumstances of the proof; i mean the great art that has been used to conceal it; how difficult a thing it was to come at it; what time has been spent in endeavouring to find out truth in a fellow, that in defiance of all admonition, threats and persuasion, would prevaricate and shuffle to conceal that truth; nay lie, and forswear himself to contradict it. but out of pure christian charity, as i told him, so i tell you i do heartily pray, and all good christians i hope will join with me in it, to the god of infinite mercy that he would have mercy upon his soul, upon which he hath contracted so great a guilt by the impudence of his behaviour and pertinacious obstinacy in those falsehoods which he hath made use of in this case. gentlemen, i would willingly forget all his prevarications, but i must take notice of them in short, to come to the truth. first he says, he came upon an errand from a man, he knows not whom, to my lady lisle's house; and thither he is brought by one barter; and when he comes there he tells her, he comes in the name of one hicks, who desired to be entertained there. then she asks the question, whether hicks had been in the army; and he told her he did not know; and he swears now he did not: but at last it came out that it was to entertain hicks and another person; but it should seem that other persons were not named; and barter tells you that hicks and another person (who afterwards proved to be nelthorp) are promised to be entertained, and ordered to come in the evening. but not to go backward and forward, as he has done in his evidence, denying what he afterwards acknowledged that he saw anybody besides a little girl; that he pulled down the hay out of the rack for his horse; that he eat anything but cake and cheese that he brought with him from home; that he was ever made to drink, or to eat or drink in the house, or ever meddled or made with any body in the house. at last we are told that carpenter met with him; and came out with a lanthorn and candle, took care of his horse, carried him into the room where hicks and nelthorp were, and the prisoner at the bar, mrs. lisle; there they all supped together; there they fell into discourse; there nelthorp's name was named, and they talked of being in the army, and of the fight; and so it is all come out, and makes a full and positive evidence. but then suppose there was no more than the other evidence, and that the fellow remain in an hardhearted obstinacy, then you are to consider the circumstances even from his first evidence, that this was after the rebellion was all over; for it seems during the rebellion she was in london, and it was notoriously known that the king's forces were in pursuit of the rebels, and this without any positive proof would be in itself a sufficient testimony to convice any considerate person, that she was to conceal those she ought not to conceal; because she directed the particular time wherein they should come, and that was at night; and no prudent person would receive strangers in the night, and give such directions in such a season without some extraordinary ground for it. when they came there, she provided a supper for them; and you see what care is taken, that the woman only is permitted to bring that supper to the door, and the husband must set it on the table; nobody is permitted to attend there but he. works of darkness always desire to be in the dark; works of rebellion and such like, are never done in the light. but then comes that honest fellow barter (i call him so because he appears so to be, and he ought to be remembered with a great remark for his honesty), he tells you, he conducted him to the house, and what discourse passed there in his hearing. the prisoner asked him what countryman he was, and whether he was a brick-maker, and promised him so many acres of land in carolina. the fellow upon observation and consideration, found himself under a great load, could not eat or sleep quietly, as men that have honest minds are uneasy under such things; falshood and treason, and hypocrisy are a heavy load; and blessed be god, things were by this means discovered: for he goes and tells col. penruddock; and withal dunne swears to barter, it was the bravest job he had ever had in his life; whereas in the beginning of his story, he would have told you a strange story of a black beard and i do not know what, and that he got not one groat by it; that he gave the man s. d. out of his own pocket, and was so industrious as when he knew the way no farther, that he would hire one himself to shew him the way, and all for nothing but only for the kindness he had for a black beard. besides, gentlemen, i am sorry to remember something that dropped even from the gentlewoman herself; she pretends to religion and loyalty very much, how greatly she wept at the death of king charles the martyr, and owns her great obligations to the late king, and his royal brother; that she had not had a being, nor any thing to maintain it for twenty years last past but from their bounty, and yet no sooner is one in the grave, but she forgets all gratitude and entertains those that were rebels against his royal successor; i will not say what hand her husband had in the death of that blessed martyr, she has enough to answer for of her own guilt; and i must confess it ought not one way or other to make any ingredient into this case what she was in former times, and i told a relation of hers, a mr. tipping by name, that came to me, last night, to desire that she might not lie under some imputations that were gone abroad of her that she rejoiced at the death of king charles i., nor that any false report of that nature might influence the court or jury against her, that it should not;--be the thing true or false, it is of no weight one way or other in the trial of this case, nor is she to be accountable for it. but i must remember you of one particular, that is plain upon this evidence, and is of very great moment in this case; that after all these private messages and directions given to come by night, and the kind reception they met with when they came, and after all this care to lodge them and feed them, when col. penruddock, after the discovery made by barter, came to search her house, then she had nobody in it truly, which is an aggravation of the offence testified by col. penruddock himself, whose father likewise was a martyr, and died for his fidelity to the crown; and who was the judge of that father we all very well know.[ ] god almighty is a just god, and it may be worth considering (especially by her) how god has been pleased to make use of him as the instrument in this business; and she would do likewise well to consider the finger of god in working upon the heart of that man barter, who was employed in all this affair, and that all the truth has been told by nelthorp,[ ] that blackest of villains nelthorp, that would have murdered the king and his royal brother; that he was one of those barbarous, malicious assassinates in that black conspiracy, and outlawed, should be harboured, by one that pretends a love for the royal family, and entertained and discoursed with at night about being in the army; yet that he and that other villain hicks, who pretends to religion, and to be a preacher of the gospel, but is found in rebellion, and in the company of traitors, should be denied the next morning. i hope they themselves are all by this time satisfied truth will come out, and i hope you will not be deceived by any specious pretences. our forefathers have been deluded, but the deception i hope is now at an end. and i must needs say if all these witnesses that have freely discovered their knowledge, joined to that truth which is at length drawn from that dunne, be worthy of any credit, it is as plain a proof as can be given, and as evident as the sun at noon day. gentlemen, upon your consciences be it; the preservation of the government, the life of the king, the safety and honour of our religion, and the discharge of our consciences as loyal men, good christians, and faithful subjects, are at stake; neither her age or her sex are to move you who have nothing else to consider but the evidence of the fact you are to try. i charge you therefore, as you will answer it at the bar of the last judgment, where you and we must all appear, deliver your verdict according to conscience and truth. with that great god the impartial judge there is no such thing as respect of persons, and in our discharge of our duty in courts of justice, he has enjoined us his creatures, that we must have no such thing as a friend in the administration of justice, all our friendship must be to truth, and our care to preserve that inviolate. lisle--my lord, if your lordship please---- lord chief-justice--mistress, you have had your turn, you cannot now be heard any more after the jury is charged. mrs. lisle--my lord, i did not know nelthorp, i declare it, before he was taken. lord chief-justice--you are not indicted for nelthorp, but we are not to enter into dialogues now, the jury must consider of it. jury-man--pray my lord, some of us desire to know of your lordship in point of law, whether it be the same thing, and equally treason, in receiving him before he was convicted of treason, as if it had been after. lord chief-justice--it is all the same, of that certainly can be no doubt; for if in case this hicks had been wounded in the rebels' army, and had come to her house and there been entertained but had died there of his wounds, and so could never have been convicted, she had been nevertheless a traitor.[ ] then the jury withdrew, and staying out a while the lord jeffreys expressed a great deal of impatience, and said that he wondered in so plain a case they would go from the bar, and would have sent for them with an intimation, that if they did not come quickly, he would adjourn, and let them lie by it all night; but about after half-an-hour's stay, the jury returned, and the foreman addressed himself to the court thus: foreman--my lord, we have one thing to beg of your lordship some directions in, before we can give our verdict in this case; we have some doubt upon us whether there be sufficient proof that she knew hicks to have been in the army. lord chief-justice--there is as full proof as proof can be; but you are judges of the proof, for my part i thought there was no difficulty in it. foreman--my lord, we are in some doubt of it. lord chief-justice--i cannot help your doubts, was there not proved a discourse of the battle and of the army at supper time? foreman--but my lord, we are not satisfied that she had notice that hicks was in the army. lord chief-justice--i cannot tell what would satisfy you; did she not enquire of dunne, whether hicks had been in the army? and when he told her he did not know, she did not say she would refuse him if he had been there, but ordered him to come by night, by which it is evident she suspected it, and when he and nelthorp came, discoursed with them about the battle and the army. come, come, gentlemen, it is a plain proof. foreman--my lord, we do not remember it was proved that she did ask any such question when they were there. lord chief-justice--sure you do not remember anything that has passed! did not dunne tell you there was such discourse, and she was by, and nelthorp's name was named. but if there were no such proof the circumstances and management of the thing is as full of proof as can be; i wonder what it is you doubt of. mrs. lisle--my lord, i hope---- lord chief-justice--you must not speak now. then the jury laid their heads together for near a quarter of an hour, and at length agreed, and being called over, delivered in this verdict by the foreman. clerk of arraigns--alice lisle, hold up thy hand. gentlemen of the jury, look upon the prisoner, how say ye? is she guilty of the treason whereof she stands indicted, or not guilty. foreman--guilty. clerk of arraigns--what goods or chattels, lands or tenements had she? foreman--none that we know of. clerk of arraigns--look to her, jailor, she is found guilty of high treason; and prepare yourself to die. then the verdict was recorded. lord chief-justice--gentlemen, i did not think i should have any occasion to speak after your verdict, but finding some hesitancy and doubt among you, i cannot but say i wonder it should come about; for i think in my conscience the evidence was as full, and plain as could be, and if i had been among you, and she had been my own mother, i should have found her guilty. then the court adjourned till the next morning. the next day lady lisle and other prisoners were brought up to receive sentence. jeffreys, after lamenting the condition of 'you mrs. lisle, a gentlewoman of quality and of fortune, so far stricken in years, one who all your life-time have been a great pretender to, and professor of, religion, and of that religion which bears a very good name, the protestant religion,' goes on to point out that 'there is no religion whatsoever (except that hypocritical profession of theirs which deserves not the name of religion, i mean the canting, whining presbyterian, phanatical profession) that gives the least countenance to rebellion or faction.' he cannot but deplore 'that in this little case so many perjuries should be added to the crime of treason, such as for my part i cannot but tremble to remember.' she should repent of her own false asseverations and protestations that you upon your salvation should pretend ignorance in the business, when since that time, ever since last night, there has been but too much discovered how far you were concerned: no it is not unknown who were sent for upon the monday night, in order to have that rebellious seditious fellow to preach to them, what directions were given to come through the orchard the back and private way, what orders were given for provision and how the horses were appointed to be disposed of. after exhortations to all the prisoners to repent, the court awards that you mrs. lisle be conveyed from hence to the place from whence you came, and from thence you are to be drawn on a hurdle to the place of execution, where your body is to be burnt alive till you be dead. and may the lord have mercy on your soul. the rest of the prisoners then had the usual judgment as in cases of felony. lord chief-justice--look you, mrs. lisle, when i left his majesty he was pleased to remit the time of all executions to me; that whenever i found any obstinacy or impenitence i might order the executions with what speed i should think best; therefore mr. sheriff, take notice you are to prepare for this execution of this gentlewoman this afternoon. but on that, i give you, the prisoner, this intimation; we that are the judges shall stay in town an hour or two; you shall have pen, ink and paper, brought you, and if in the mean time you employ that pen, ink and paper, and this hour or two well (you understand what i mean) it may be you may hear further from us, in a deferring the execution. on the intercession of 'some divines of the church of winchester' execution was respited till nd of september; and her sentence was afterwards commuted to beheading. she was accordingly beheaded on the afternoon of the nd of september in the market-place of winchester. in , on the petition of her daughters mrs. lloyd and mrs. askew, her attainder was annulled by act of parliament on the ground that the verdict was 'injuriously extorted and procured by the menaces and violences and other illegal practices of george lord jeffreys, baron of wem, then lord chief-justice of the king's bench.'[ ] footnotes: [ ] george jeffreys, baron jeffreys of wem ( - ), was born, of good family, near wrexham in denbighshire. he was educated at shrewsbury, st. paul's, westminster, and trinity college, cambridge, where he was admitted in . he first practised at the old bailey and the middlesex sessions, then held at hicks's hall. his learning in law was never extensive; but his natural abilities were very great, and, as far as one can judge from the reports, he practised cross-examination with much more real skill than most of his contemporaries. in fact, his cross-examinations from the bench, though scandalous and brutal to the last degree, seem to be the earliest instances we have of the art as now understood. he was appointed common serjeant in , left the popular party and was made solicitor-general to the duke of york in , and became recorder of london in . he did what he could to aid in the persecutions connected with the popish plot, and was made chief-justice of chester in . the house of commons petitioned the king for his removal from office in the same year, for the part he had taken in opposing petitions for a parliament; and he was reprimanded by the house and resigned his recordership the same year, but was made chairman of the middlesex sessions soon afterwards. he was the chief promoter of the _quo warranto_ proceedings by which the city was deprived of its charter, and was engaged in the prosecution of lord russell. he was made lord chief-justice in . he presided at the trials of algernon sidney and titus oates. he was called to the house of lords in , and tried richard banks in the same year. on his return from the 'bloody assize' he was made lord chancellor. he suggested the revival of the court of high commission, and presided in it at the proceedings against magdalen college. he advised the trial of the seven bishops, and narrowly missed being made chancellor of the university of oxford. on the flight of james ii. he attempted to escape disguised as a sailor, but was seized in the red cow in anchor and hope alley. he was removed to the tower, where he died, and was buried in the next grave to monmouth. the well-deserved detestation with which he was regarded makes it difficult to form any just estimate of his character. where he had no temptation to do injustice he seems to have been a very good judge; but he had no hesitation in doing gross injustice by detestable methods, for wholly discreditable reasons. he is not seen quite at his worst in alice lisle's trial, because she was probably guilty and dunne was a liar; nor is he seen at his best as a cross-examiner, because he had very good material to go on. he has been unfortunate in attracting the notice of popular writers such as burnet, campbell, and macaulay, who have all found him a convenient subject for picturesque abuse; and a tendency to not too ingenious paradox diminishes the value of the work of a more recent biographer written from the opposite point of view. [ ] appointed attorney-general in , and chief-justice of the common pleas in the same year. he was a prominent whig, and at the time of this trial had appeared for the defence in several previous state trials, among others that of lord russell, vol. ii. p. . he afterwards appeared for the defence in the case of the seven bishops, and was well known as an adherent of the prince of orange at the revolution. he died in . [ ] see his dying speech, _state trials_, xi. , in which he makes no reference to lady lisle. [ ] this passage with several others proves that jeffreys had got up the case beforehand pretty much as counsel would to-day. cf. pp. , , , . [ ] cf. p. . [ ] he was born in denbighshire. [ ] cf. p. . [ ] _ante_, p. . [ ] cf. _ante_, p. . [ ] lady lisle's attainder was afterwards reversed on the ground that this ruling is wrong; it does not represent the present law (see stephen's _digest_, art. ), which, however, rests on a subsequent dictum of hale's followed by foster, due probably to his recollection of this case. sir james stephen suggests that as a matter of mere law jeffreys may have been right (_hist. crim. law_, vol. ii. p. ); he also says: 'i think that this is another of the numerous instances in which there really was no definite law at all, and in which the fact that a particular course was taken by a cruel man for a bad purpose has been regarded as a proof that the course taken was illegal.'--(_ibid._, vol. i. p. ). [ ] cf. with note, p. . printed by t. and a. constable, printers to her majesty at the edinburgh university press * * * * * transcribers' notes pages , : inconsistent spelling of gawdie/gawdy as in original. pages , : inconsistent hyphenation of durham house/durham-house as in original. pages , : inconsistent spelling of musquets/muskets as in original. page : machiavelian standardised to machiavelian (second occurrence). pages , : inconsistent hyphenation of hearsay/hear-say as in original. page , footnote : inconsistent spelling of amias/amyas as in original. pages , , , footnote : inconsistent hyphenation of beforehand/ before-hand as in original. page : your's as in original. page : repeated 'the' removed in 'answer must be the the same'. page , footnote : inconsistent spelling of geoffry/geoffrey as in original. pages , : inconsistent spelling of visor/vizor as in original. page : lord-chief baron standardised to lord chief-baron. page : latitute as in original. page : commonweath corrected to commonwealth. page : waved as in original. pages , : inconsistent hyphenation of apiece/a-piece as in original. page : capell standardised to capel (third occurrence). page : reference to mr. . g. stephens as in original. it is unclear whether there should be another initial or the full-stop (period) should be removed. footnote : livingtone standardised to livingstone. various sources give the name as livingstone, livingston or levingston. page : 'more that that' as in original. page : inconsistency between sheriffs and sheriff as in original. it is unclear whether this is an error on col. turner's part or in the printed text. page : amy durent as printed. it should perhaps read amy duny. page , footnote : inconsistent spelling of brown/browne in footnote as in original. page : inconsistent hyphenation of boat-man/boatman as in original. pages , : falshood as in original. pages , : inconsistent spelling of sniveling/snivelling as in original. page : 'after all this pains' as in original. pages , : inconsistent hyphenation of malt house/malt-house/ malt-house as in original. page : convice as in original. page : jeffries standardised to jeffreys. file was produced from images generously made available by the posner memorial collection (http://posner.library.cmu.edu/posner/)) [transcriber's note: sir william blackstone's _commentaries on the laws of england_ was first published in - . it contains a number of archaic spellings (including "goaler" for "gaoler" and "it's" for "its") that have been preserved as they appear in the original. all such spellings have been verified using the oxford english dictionary. inconsistencies in spelling, punctuation, hyphenation, capitalization, and italicization have also been preserved. obvious printer errors have been preserved and marked with a [transcriber's note]. long s in the original has been modernized as modern s. the archaic convention of placing quotation marks at the beginning of each line of a quotation has also been modernized to quotation marks only at the beginning and end of the quotation.] commentaries on the laws of england. book the first. by william blackstone, esq. vinerian professor of law, and solicitor general to her majesty. oxford, printed at the clarendon press. m. dcc. lxv. to the queen's most excellent majesty, the following view of the laws and constitution of england, the improvement and protection of which have distinguished the reign of her majesty's royal consort, is, with all gratitude and humility, most respectfully inscribed by her dutiful and most obedient servant, william blackstone. preface. _the following sheets contain the substance of a course of lectures on the laws of england, which were read by the author in the university of oxford. his original plan took it's rise in the year : and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices usually conceived against any innovations in the established mode of education, he had the satisfaction to find (and he acknowleges it with a mixture of pride and gratitude) that his endeavours were encouraged and patronized by those, both in the university and out of it, whose good opinion and esteem he was principally desirous to obtain._ _the death of mr viner in , and his ample benefaction to the university for promoting the study of the law, produced about two years afterwards a regular and public establishment of what the author had privately undertaken. the knowlege of our laws and constitution was adopted as a liberal science by general academical authority; competent endowments were decreed for the support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing commentaries had the honour to be elected the first vinerian professor._ _in this situation he was led, both by duty and inclination, to investigate the elements of the law, and the grounds of our civil polity, with greater assiduity and attention than many have thought it necessary to do. and yet all, who of late years have attended the public administration of justice, must be sensible that a masterly acquaintance with the general spirit of laws and the principles of universal jurisprudence, combined with an accurate knowlege of our own municipal constitutions, their original, reason, and history, hath given a beauty and energy to many modern judicial decisions, with which our ancestors were wholly unacquainted. if, in the pursuit of these inquiries, the author hath been able to rectify any errors which either himself or others may have heretofore imbibed, his pains will be sufficiently answered: and, if in some points he is still mistaken, the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious._ _the labour indeed of these researches, and of a regular attention to his duty, for a series of so many years, he hath found inconsistent with his health, as well as his other avocations: and hath therefore desired the university's permission to retire from his office, after the conclusion of the annual course in which he is at present engaged. but the hints, which he had collected for the use of his pupils, having been thought by some of his more experienced friends not wholly unworthy of the public eye, it is therefore with the less reluctance that he now commits them to the press: though probably the little degree of reputation, which their author may have acquired by the candor of an audience (a test widely different from that of a deliberate perusal) would have been better consulted by a total suppression of his lectures;----had that been a matter intirely within his power._ _for the truth is, that the present publication is as much the effect of necessity, as it is of choice. the notes which were taken by his hearers, have by some of them (too partial in his favour) been thought worth revising and transcribing; and these transcripts have been frequently lent to others. hence copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen into mercenary hands, and become the object of clandestine sale. having therefore so much reason to apprehend a surreptitious impression, he chose rather to submit his own errors to the world, than to seem answerable for those of other men. and, with this apology, he commits himself to the indulgence of the public._ errata. _page , line _: _for_ no _read_ an _page , (notes) col. ._ _after_ sid. . _add_ see stat. car. ii. c. . _page , line _: _after_ sit _add_ at _page , line _: _for_ predial _read_ rectorial contents. introduction. sect. i. _on the_ study _of the_ law. page . sect. ii. _of the_ nature _of_ laws _in general_. . sect. iii. _of the_ laws _of_ england. . sect. iv. _of the_ countries _subject to the_ laws _of_ england. . book i. _of the_ rights _of_ persons. chap. i. _of the absolute_ rights _of_ individuals. . chap. ii. _of the_ parliament. . chap. iii. _of the_ king, _and his_ title. . chap. iv. _of the_ king's _royal_ family. . chap. v. _of the_ councils _belonging to the_ king. . chap. vi. _of the_ king's duties. . chap. vii. _of the_ king's prerogative. . chap. viii. _of the_ king's revenue. . chap. ix. _of subordinate_ magistrates. . chap. x. _of the_ people, _whether_ aliens, denizens, _or_ natives. . chap. xi. _of the_ clergy. . chap. xii. _of the_ civil state. . chap. xiii. _of the_ military _and_ maritime states. . chap. xiv. _of_ master _and_ servant. . chap. xv. _of_ husband _and_ wife. . chap. xvi. _of_ parent _and_ child. . chap. xvii. _of_ guardian _and_ ward. . chap. xviii. _of_ corporations. . commentaries on the laws of england. introduction. section the first. on the study of the law.[a] [footnote a: read in oxford at the opening of the vinerian lectures; oct. .] mr vice-chancellor, and gentlemen of the university, the general expectation of so numerous and respectable an audience, the novelty, and (i may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. he must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical, elementary parts have hitherto received a very moderate share of cultivation. he cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the public-spirited design of our wise and munificent benefactor. and this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. and yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. one thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects; esteeming, that the best return, which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it. the science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowlege, in which the gentlemen of england have been more remarkably deficient than those of all europe besides. in most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. and in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowlege in that science, which is to be the guardian of his natural rights and the rule of his civil conduct. nor have the imperial laws been totally neglected even in the english nation. a general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in switzerland, germany, and holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. in the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession; though built upon the soundest foundations, and approved by the experience of ages. far be it from me to derogate from the study of the civil law, considered (apart from any binding authority) as a collection of written reason. no man is more thoroughly persuaded of the general excellence of it's rules, and the usual equity of it's decisions; nor is better convinced of it's use as well as ornament to the scholar, the divine, the statesman, and even the common lawyer. but we must not carry our veneration so far as to sacrifice our alfred and edward to the manes of theodosius and justinian: we must not prefer the edict of the praetor, or the rescript of the roman emperor, to our own immemorial customs, or the sanctions of an english parliament; unless we can also prefer the despotic monarchy of rome and byzantium, for whose meridians the former were calculated, to the free constitution of britain, which the latter are adapted to perpetuate. without detracting therefore from the real merit which abounds in the imperial law, i hope i may have leave to assert, that if an englishman must be ignorant of either the one or the other, he had better be a stranger to the roman than the english institutions. for i think it an undeniable position, that a competent knowlege of the laws of that society, in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, i had almost said essential, part of liberal and polite education. and in this i am warranted by the example of antient rome; where, as cicero informs us[a], the very boys were obliged to learn the twelve tables by heart, as a _carmen necessarium_ or indispensable lesson, to imprint on their tender minds an early knowlege of the laws and constitutions of their country. [footnote a: _de legg._ . .] but as the long and universal neglect of this study, with us in england, seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considerable situations of life. some conjectures will then be offered with regard to the causes of neglecting this useful study: to which will be subjoined a few reflexions on the peculiar propriety of reviving it in our own universities. and, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. a land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution[b]. this liberty, rightly understood, consists in the power of doing whatever the laws permit[c]; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. as therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least, with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. and thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. but those, on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. these advantages are given them, not for the benefit of themselves only, but also of the public: and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowlege in the laws. to evince this the more clearly, it may not be amiss to descend to a few particulars. [footnote b: montesq. _esp. l._ _l._ . _c._ .] [footnote c: _facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur._ _inst._ . . .] let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by mr locke[d] as a strange absurdity. it is their landed property, with it's long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowlege. the thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession: yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him at least from very gross and notorious imposition. [footnote d: education. §. .] again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. an ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistance. those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all: so that in the end his estate may often be vested quite contrary to these his enigmatical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires. but to proceed from private concerns to those of a more public consideration. all gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. in this situation they are frequently to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. and the general incapacity, even of our best juries, to do this with any tolerable propriety has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended. but it is not as a juror only that the english gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. and here a very ample field is opened for a gentleman to exert his talents, by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences and preventing vexatious prosecutions. but, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also, (under which must be included the knowlege) of administring legal and effectual justice. else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct. yet farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament: and those, who are ambitious of receiving so high a trust, would also do well to remember it's nature and importance. they are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or with-hold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. they are the guardians of the english constitution; the makers, repealers, and interpreters of the english laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. and how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments! indeed it is really amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself _born_ a legislator. yet tully was of a different opinion: "it is necessary, says he[e], for a senator to be thoroughly acquainted with the constitution; and this, he declares, is a knowlege of the most extensive nature; a matter of science, of diligence, of reflexion; without which no senator can possibly be fit for his office." [footnote e: _de legg._ . . _est senatori necessarium nosse rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae, memoriae est; sine quo paratus esse senator nullo pacto potest._] the mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. the common law of england has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. hence frequently it's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties. for, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays (which have sometimes disgraced the english, as well as other, courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as sir edward coke expresses it[f]) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law." this great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. "but if, he subjoins, acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statutes had provided remedy for former mischiefs, and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do." and if this inconvenience was so heavily felt in the reign of queen elizabeth, you may judge how the evil is increased in later times, when the statute book is swelled to ten times a larger bulk; unless it should be found, that the penners of our modern statutes have proportionably better informed themselves in the knowlege of the common law. [footnote f: rep. pref.] what is said of our gentlemen in general, and the propriety of their application to the study of the laws of their country, will hold equally strong or still stronger with regard to the nobility of this realm, except only in the article of serving upon juries. but, instead of this, they have several peculiar provinces of far greater consequence and concern; being not only by birth hereditary counsellors of the crown, and judges upon their honour of the lives of their brother-peers, but also arbiters of the property of all their fellow-subjects, and that in the last resort. in this their judicial capacity they are bound to decide the nicest and most critical points of the law; to examine and correct such errors as have escaped the most experienced sages of the profession, the lord keeper and the judges of the courts at westminster. their sentence is final, decisive, irrevocable: no appeal, no correction, not even a review can be had: and to their determination, whatever it be, the inferior courts of justice must conform; otherwise the rule of property would no longer be uniform and steady. should a judge in the most subordinate jurisdiction be deficient in the knowlege of the law, it would reflect infinite contempt upon himself and disgrace upon those who employ him. and yet the consequence of his ignorance is comparatively very trifling and small: his judgment may be examined, and his errors rectified, by other courts. but how much more serious and affecting is the case of a superior judge, if without any skill in the laws he will boldly venture to decide a question, upon which the welfare and subsistence of whole families may depend! where the chance of his judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury of the most alarming nature, an injury without possibility of redress! yet, vast as this trust is, it can no where be so properly reposed as in the noble hands where our excellent constitution has placed it: and therefore placed it, because, from the independence of their fortune and the dignity of their station, they are presumed to employ that leisure which is the consequence of both, in attaining a more extensive knowlege of the laws than persons of inferior rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to noble birth; which, as on the one hand it will prevent either interest or affection from interfering in questions of right, so on the other it will bind a peer in honour, an obligation which the law esteems equal to another's oath, to be master of those points upon which it is his birthright to decide. the roman pandects will furnish us with a piece of history not unapplicable to our present purpose. servius sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take the opinion of quintus mutius scaevola, the oracle of the roman law; but for want of some knowlege in that science, could not so much as understand even the technical terms, which his friend was obliged to make use of. upon which mutius scaevola could not forbear to upbraid him with this memorable reproof[g], "that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned." this reproach made so deep an impression on sulpicius, that he immediately applied himself to the study of the law; wherein he arrived to that proficiency, that he left behind him about a hundred and fourscore volumes of his own compiling upon the subject; and became, in the opinion of cicero[h], a much more complete lawyer than even mutius scaevola himself. [footnote g: _ff._ . . . §. . _turpe esse patricio, & nobili, & causas oranti, jus in quo versaretur ignorare._] [footnote h: _brut._ .] i would not be thought to recommend to our english nobility and gentry to become as great lawyers as sulpicius; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise indefatigable senator; but the inference which arises from the story is this, that ignorance of the laws of the land hath ever been esteemed dishonourable, in those who are entrusted by their country to maintain, to administer, and to amend them. but surely there is little occasion to enforce this argument any farther to persons of rank and distinction, if we of this place may be allowed to form a general judgment from those who are under our inspection: happy, that while we lay down the rule, we can also produce the example. you will therefore permit your professor to indulge both a public and private satisfaction, by bearing this open testimony; that in the infancy of these studies among us, they were favoured with the most diligent attendance, and pursued with the most unwearied application, by those of the noblest birth and most ample patrimony: some of whom are still the ornaments of this seat of learning; and others at a greater distance continue doing honour to it's institutions, by comparing our polity and laws with those of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home. nor will some degree of legal knowlege be found in the least superfluous to persons of inferior rank; especially those of the learned professions. the clergy in particular, besides the common obligations they are under in proportion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, which are almost peculiar and appropriated to themselves alone. such are the laws relating to advowsons, institutions, and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to tithes and other ecclesiastical dues; to marriages (more especially of late) and to a variety of other subjects, which are consigned to the care of their order by the provisions of particular statutes. to understand these aright, to discern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension; which is no otherwise to be acquired than by use and a familiar acquaintance with legal writers. for the gentlemen of the faculty of physic, i must frankly own that i see no special reason, why they in particular should apply themselves to the study of the law; unless in common with other gentlemen, and to complete the character of general and extensive knowlege; a character which their profession, beyond others, has remarkably deserved. they will give me leave however to suggest, and that not ludicrously, that it might frequently be of use to families upon sudden emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least so far as relates to the formal part of their execution. but those gentlemen who intend to profess the civil and ecclesiastical laws in the spiritual and maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. for the civil and canon laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom; they are no more binding in england than our laws are binding at rome. but as far as these foreign laws, on account of some peculiar propriety, have in some particular cases, and in some particular courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority being wholly founded upon that permission and adoption. in which we are not singular in our notions; for even in holland, where the imperial law is much cultivated and it's decisions pretty generally followed, we are informed by van leeuwen[i], that, "it receives it's force from custom and the consent of the people, either tacitly or expressly given: for otherwise, he adds, we should no more be bound by this law, than by that of the almains, the franks, the saxons, the goths, the vandals, and other of the antient nations." wherefore, in all points in which the different systems depart from each other, the law of the land takes place of the law of rome, whether antient or modern, imperial or pontificial. and in those of our english courts wherein a reception has been allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters, than are permitted to them; or if such courts proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance both may, and frequently does, prohibit and annul their proceedings[k]: and it will not be a sufficient excuse for them to tell the king's courts at westminster, that their practice is warranted by the laws of justinian or gregory, or is conformable to the decrees of the rota or imperial chamber. for which reason it becomes highly necessary for every civilian and canonist that would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the english laws have given sanction to the roman; in what points the latter are rejected; and where they are both so intermixed and blended together, as to form certain supplemental parts of the common law of england, distinguished by the titles of the king's maritime, the king's military, and the king's ecclesiastical law. the propriety of which enquiry the university of oxford has for more than a century so thoroughly seen, that in her statutes[l] she appoints, that one of the three questions to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining this reason, "_quia juris civilis studiosos decet haud imperitos esse juris municipalis, & differentias exteri patriique juris notas habere_." and the statutes[m] of the university of cambridge speak expressly to the same effect. [footnote i: _dedicatio corporis juris civilis._ _edit._ .] [footnote k: hale. hist. c.l. c. . selden _in fletam_. rep. caudrey's case. inst. .] [footnote l: _tit. vii. sect._ . §. .] [footnote m: _doctor legum mox a doctoratu dabit operam legibus angliae, ut non sit imperitus earum legum quas habet sua patria, et differentias exteri patriique juris noscat._ _stat._ eliz. _r._ _c._ . cowel. _institut. in proëmio._] from the general use and necessity of some acquaintance with the common law, the inference were extremely easy, with regard to the propriety of the present institution, in a place to which gentlemen of all ranks and degrees resort, as the fountain of all useful knowlege. but how it has come to pass that a design of this sort has never before taken place in the university, and the reason why the study of our laws has in general fallen into disuse, i shall previously proceed to enquire. sir john fortescue, in his panegyric on the laws of england, (which was written in the reign of henry the sixth) puts[n] a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning; "why the laws of england, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are?" in answer to which he gives[o] what seems, with due deference be it spoken, a very jejune and unsatisfactory reason; being in short, that "as the proceedings at common law were in his time carried on in three different tongues, the english, the latin, and the french, that science must be necessarily taught in those three several languages; but that in the universities all sciences were taught in the latin tongue only; and therefore he concludes, that they could not be conveniently taught or studied in our universities." but without attempting to examine seriously the validity of this reason, (the very shadow of which by the wisdom of your late constitutions is entirely taken away) we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws has been banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil. [footnote n: _c._ .] [footnote o: _c._ .] that antient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the norman conquest. this had endeared it to the people in general, as well because it's decisions were universally known, as because it was found to be excellently adapted to the genius of the english nation. in the knowlege of this law consisted great part of the learning of those dark ages; it was then taught, says mr selden[p], in the monasteries, _in the universities_, and in the families of the principal nobility. the clergy in particular, as they then engrossed almost every other branch of learning, so (like their predecessors the british druids[q]) they were peculiarly remarkable for their proficiency in the study of the law. _nullus clericus nisi causidicus_, is the character given of them soon after the conquest by william of malmsbury[r]. the judges therefore were usually created out of the sacred order[s], as was likewise the case among the normans[t]; and all the inferior offices were supplied by the lower clergy, which has occasioned their successors to be denominated _clerks_ to this day. [footnote p: _in fletam._ . .] [footnote q: caesar _de bello gal._ . .] [footnote r: _de gest. reg._ _l._ .] [footnote s: dugdale _orig. jurid._ _c._ .] [footnote t: _les juges sont sages personnes & autentiques,--sicome les archevesques, evesques, les chanoines les eglises cathedraulx, & les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, & les gouverneurs des eglises, &c._ _grand coustumier_, _ch._ .] but the common law of england, being not committed to writing, but only handed down by tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our constitution as well as our language. and an accident, which soon after happened, had nearly completed it's ruin. a copy of justinian's pandects, being newly[u] discovered at amalfi, soon brought the civil law into vogue all over the west of europe, where before it was quite laid aside[w] and in a manner forgotten; though some traces of it's authority remained in italy[x] and the eastern provinces of the empire[y]. this now became in a particular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. the study of it was introduced into several universities abroad, particularly that of bologna; where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches of science: and many nations on the continent, just then beginning to recover from the convulsions consequent upon the overthrow of the roman empire, and settling by degrees into peaceable forms of government, adopted the civil law, (being the best written system then extant) as the basis of their several constitutions; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others a more confined authority[z]. [footnote u: _circ. a.d._ .] [footnote w: _ll. wisigoth._ . . .] [footnote x: _capitular. hludov. pii._ . .] [footnote y: selden _in fletam._ . .] [footnote z: domat's treatise of laws. c. . §. . _epistol. innocent. iv. in m. paris. ad a.d._ .] nor was it long before the prevailing mode of the times reached england. for theobald, a norman abbot, being elected to the see of canterbury[a], and extremely addicted to this new study, brought over with him in his retinue many learned proficients therein; and among the rest roger sirnamed vacarius, whom he placed in the university of oxford[b], to teach it to the people of this country. but it did not meet with the same easy reception in england, where a mild and rational system of laws had been long established, as it did upon the continent; and, though the monkish clergy (devoted to the will of a foreign primate) received it with eagerness and zeal, yet the laity who were more interested to preserve the old constitution, and had already severely felt the effect of many norman innovations, continued wedded to the use of the common law. king stephen immediately published a proclamation[c], forbidding the study of the laws, then newly imported from italy; which was treated by the monks[d] as a piece of impiety, and, though it might prevent the introduction of the civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries. [footnote a: _a.d._ .] [footnote b: gervas. dorobern. _act. pontif. cantuar. col._ .] [footnote c: rog. bacon. _citat. per_ selden. _in fletam._ . . _in fortesc._ _c._ . & rep. pref.] [footnote d: joan. sarisburiens. _polycrat._ . .] from this time the nation seems to have been divided into two parties; the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil and canon laws, which now came to be inseparably interwoven with each other; and the nobility and laity, who adhered with equal pertinacity to the old common law; both of them reciprocally jealous of what they were unacquainted with, and neither of them perhaps allowing the opposite system that real merit which is abundantly to be found in each. this appears on the one hand from the spleen with which the monastic writers[e] speak of our municipal laws upon all occasions; and, on the other, from the firm temper which the nobility shewed at the famous parliament of merton; when the prelates endeavoured to procure an act, to declare all bastards legitimate in case the parents intermarried at any time afterwards; alleging this only reason, because holy church (that is, the canon law) declared such children legitimate: but "all the earls and barons (says the parliament roll[f]) with one voice answered, that they would not change the laws of england, which had hitherto been used and approved." and we find the same jealousy prevailing above a century afterwards[g], when the nobility declared with a kind of prophetic spirit, "that the realm of england hath never been unto this hour, neither by the consent of our lord the king and the lords of parliament shall it ever be, ruled or governed by the civil law[h]." and of this temper between the clergy and laity many more instances might be given. [footnote e: _idem, ibid._ . . polydor. vergil. _hist._ _l._ .] [footnote f: _stat. merton._ _hen. iii._ _c._ . _et omnes comites & barones una voce responderunt, quod nolunt leges angliae mutare, quae hucusque usitatae sunt & approbatae._] [footnote g: ric. ii.] [footnote h: selden. _jan. anglor._ _l._ . §. . _in fortesc._ _c._ .] while things were in this situation, the clergy, finding it impossible to root out the municipal law, began to withdraw themselves by degrees from the temporal courts; and to that end, very early in the reign of king henry the third, episcopal constitutions were published[i], forbidding all ecclesiastics to appear as advocates _in foro saeculari_; nor did they long continue to act as judges there, nor caring to take the oath of office which was then found necessary to be administred, that they should in all things determine according to the law and custom of this realm[k]; though they still kept possession of the high office of chancellor, an office then of little juridical power; and afterwards, as it's business increased by degrees, they modelled the process of the court at their own discretion. [footnote i: spelman. _concil. a.d._ . wilkins, _vol._ . _p._ , .] [footnote k: selden. _in fletam._ . .] but wherever they retired, and wherever their authority extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the municipal law. this appears in a particular manner from the spiritual courts of all denominations, from the chancellor's courts in both our universities, and from the high court of chancery before-mentioned; in all of which the proceedings are to this day in a course much conformed to the civil law: for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law; pope innocent the fourth having[l] forbidden the very reading of it by the clergy, because it's decisions were not founded on the imperial constitutions, but merely on the customs of the laity. and if it be considered, that our universities began about that period to receive their present form of scholastic discipline; that they were then, and continued to be till the time of the reformation, entirely under the influence of the popish clergy; (sir john mason the first protestant, being also the first lay, chancellor of oxford) this will lead us to perceive the reason, why the study of the roman laws was in those days of bigotry[m] pursued with such alacrity in these seats of learning; and why the common law was entirely despised, and esteemed little better than heretical. [footnote l: m. paris _ad a.d._ .] [footnote m: there cannot be a stronger instance of the absurd and superstitious veneration that was paid to these laws, than that the most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making her a civilian and a canonist. which albertus magnus, the renowned dominican doctor of the thirteenth century, thus proves in his _summa de laudibus christiferae virginis (divinum magis quam humanum opus)_ _qu._ . §. . "_item quod jura civilia, & leges, & decreta scivit in summo, probatur hoc modo: sapientia advocati manifestatur in tribus; unum, quod obtineat omnia contra judicem justum & sapientem; secundo, quod contra adversarium astutum & sagacem; tertio, quod in causa desperata: sed beatissima virgo, contra judicem sapientissimum, dominum; contra adversarium callidissimum, dyabolum; in causa nostra desperata; sententiam optatam obtinuit._" to which an eminent franciscan, two centuries afterwards, bernardinus de busti (_mariale_, _part._ . _serm._ .) very gravely subjoins this note. "_nec videtur incongruum mulieres habere peritiam juris. legitur enim de uxore joannis andreae glossatoris, quod tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit._"] and, since the reformation, many causes have conspired to prevent it's becoming a part of academical education. as, first, long usage and established custom; which, as in every thing else, so especially in the forms of scholastic exercise, have justly great weight and authority. secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth; and their total ignorance of the merit of the common law, though it's equal at least, and perhaps an improvement on the other. but the principal reason of all, that has hindered the introduction of this branch of learning, is, that the study of the common law, being banished from hence in the times of popery, has fallen into a quite different chanel, and has hitherto been wholly cultivated in another place. but as this long usage and established custom, of ignorance in the laws of the land, begin now to be thought unreasonable; and as by this means the merit of those laws will probably be more generally known; we may hope that the method of studying them will soon revert to it's antient course, and the foundations at least of that science will be laid in the two universities; without being exclusively confined to the chanel which it fell into at the times i have been just describing. for, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen; who entertained upon their parts a most hearty aversion to the civil law[n], and made no scruple to profess their contempt, nay even their ignorance[o] of it, in the most public manner. but still, as the ballance of learning was greatly on the side of the clergy, and as the common law was no longer _taught_, as formerly, in any part of the kingdom, it must have been subjected to many inconveniences, and perhaps would have been gradually lost and overrun by the civil, (a suspicion well justified from the frequent transcripts of justinian to be met with in bracton and fleta) had it not been for a peculiar incident, which happened at a very critical time, and contributed greatly to it's support. [footnote n: fortesc. _de laud. ll._ _c._ .] [footnote o: this remarkably appeared in the case of the abbot of torun, _m._ _e._ . . who had caused a certain prior to be summoned to answer at avignon for erecting an oratory _contra inhibitionem novi operis_; by which words mr selden, (_in flet._ . .) very justly understands to be meant the title _de novi operis nuntiatione_ both in the civil and canon laws, (_ff._ . . _c._ . . and _decretal._ not _extrav._ . .) whereby the erection of any new buildings in prejudice of more antient ones was prohibited. but skipwith the king's serjeant, and afterwards chief baron of the exchequer, declares them to be flat nonsense; "_in ceux parolx_, contra inhibitionem novi operis, _ny ad pas entendment_:" and justice schardelow mends the matter but little by informing him, that they signify a restitution _in their law_; for which reason he very sagely resolves to pay no sort of regard to them. "_ceo n'est que un restitution en lour ley, pur que a ceo n'avomus regard, &c._"] the incident i mean was the fixing the court of common pleas, the grand tribunal for disputes of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and notorious to all the nation. formerly that, in conjunction with all the other superior courts, was held before the king's capital justiciary of england, in the _aula regis_, or such of his palaces wherein his royal person resided; and removed with his houshold from one end of the kingdom to the other. this was found to occasion great inconvenience to the suitors; to remedy which it was made an article of the great charter of liberties, both that of king john and king henry the third[p], that "common pleas should no longer follow the king's court, but be held in some certain place:" in consequence of which they have ever since been held (a few necessary removals in times of the plague excepted) in the palace of westminster only. this brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body; whereby a society was established of persons, who (as spelman[q] observes) addicting themselves wholly to the study of the laws of the land, and no longer considering it as a mere subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of perfection, which they suddenly attained under the auspices of our english justinian, king edward the first. [footnote p: _c._ .] [footnote q: _glossar._ .] in consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from oxford and cambridge, found it necessary to establish a new university of their own. this they did by purchasing at various times certain houses (now called the inns of court and of chancery) between the city of westminster, the place of holding the king's courts, and the city of london; for advantage of ready access to the one, and plenty of provisions in the other[r]. here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil. the degrees were those of barristers (first stiled apprentices[s] from _apprendre_, to learn) who answered to our bachelors; as the state and degree of a serjeant[t], _servientis ad legem_, did to that of doctor. [footnote r: fortesc. _c._ .] [footnote s: apprentices or barristers seem to have been first appointed by an ordinance of king edward the first in parliament, in the th year of his reign. (spelm. _gloss._ . dugdale. _orig. jurid._ .)] [footnote t: the first mention i have met with in our lawbooks of serjeants or countors, is in the statute of westm. . edw. i. c. . and in horn's mirror, _c._ . §. . _c._ . §. . _c._ . §. . in the same reign. but m. paris in his life of john ii, abbot of st. alban's, which he wrote in , hen. iii. speaks of advocates at the common law, or countors (_quos banci narratores vulgariter appellamus_) as of an order of men well known. and we have an example of the antiquity of the coif in the same author's history of england, _a.d._ . in the case of one william de bussy; who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy, which till then remained an entire secret; and to that end _voluit ligamenta coifae suae solvere, ut palam monstraret se tonsuram habere clericalem; sed non est permissus.----satelles vero eum arripiens, non per coifae ligamina sed per guttur eum apprehendens, traxit ad carcerem_. and hence sir h. spelman conjectures, (_glossar._ .) that coifs were introduced to hide the tonsure of such renegade clerks, as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition by canon.] the crown seems to have soon taken under it's protection this infant seminary of common law; and, the more effectually to foster and cherish it, king henry the third in the nineteenth year of his reign issued out an order directed to the mayor and sheriffs of london, commanding that no regent of any law schools _within_ that city should for the future teach law therein[u]. the word, law, or _leges_, being a general term, may create some doubt at this distance of time whether the teaching of the civil law, or the common, or both, is hereby restrained. but in either case it tends to the same end. if the civil law only is prohibited, (which is mr selden's[w] opinion) it is then a retaliation upon the clergy, who had excluded the common law from _their_ seats of learning. if the municipal law be also included in the restriction, (as sir edward coke[x] understands it, and which the words seem to import) then the intention is evidently this; by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university, which was newly instituted in the suburbs. [footnote u: _ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat._] [footnote w: _in flet._ . .] [footnote x: inst. proëm.] in this juridical university (for such it is insisted to have been by fortescue[y] and sir edward coke[z]) there are two sorts of collegiate houses; one called inns of chancery, in which the younger students of the law were usually placed, "learning and studying, says fortescue[a], the originals and as it were the elements of the law; who, profiting therein, as they grow to ripeness so are they admitted into the greater inns of the same study, called the inns of court." and in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their children, though they did not desire to have them thoroughly learned in the law, or to get their living by it's practice: and that in his time there were about two thousand students at these several inns, all of whom he informs us were _filii nobilium_, or gentlemen born. [footnote y: _c._ .] [footnote z: rep. pref.] [footnote a: _ibid._] hence it is evident, that (though under the influence of the monks our universities neglected this study, yet) in the time of henry the sixth it was thought highly necessary and was the universal practice, for the young nobility and gentry to be instructed in the originals and elements of the laws. but by degres [transcriber's note: degrees] this custom has fallen into disuse; so that in the reign of queen elizabeth sir edward coke[b] does not reckon above a thousand students, and the number at present is very considerably less. which seems principally owing to these reasons: first, because the inns of chancery being now almost totally filled by the inferior branch of the profession, they are neither commodious nor proper for the resort of gentlemen of any rank or figure; so that there are now very rarely any young students entered at the inns of chancery: secondly, because in the inns of court all sorts of regimen and academical superintendance, either with regard to morals or studies, are found impracticable and therefore entirely neglected: lastly, because persons of birth and fortune, after having finished their usual courses at the universities, have seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction. wherefore few gentlemen now resort to the inns of court, but such for whom the knowlege of practice is absolutely necessary; such, i mean, as are intended for the profession: the rest of our gentry, (not to say our nobility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land; and indeed with hardly any opportunity of gaining instruction, unless it can be afforded them in these seats of learning. [footnote b: _ibid._] and that these are the proper places, for affording assistances of this kind to gentlemen of all stations and degrees, cannot (i think) with any colour of reason be denied. for not one of the objections, which are made to the inns of court and chancery, and which i have just enumerated, will hold with regard to the universities. gentlemen may here associate with gentlemen of their own rank and degree. nor are their conduct and studies left entirely to their own discretion; but regulated by a discipline so wise and exact, yet so liberal, so sensible and manly, that their conformity to it's rules (which does at present so much honour to our youth) is not more the effect of constraint, than of their own inclinations and choice. neither need they apprehend too long an avocation hereby from their private concerns and amusements, or (what is a more noble object) the service of their friends and their country. this study will go hand in hand with their other pursuits: it will obstruct none of them; it will ornament and assist them all. but if, upon the whole, there are any still wedded to monastic prejudice, that can entertain a doubt how far this study is properly and regularly _academical_, such persons i am afraid either have not considered the constitution and design of an university, or else think very meanly of it. it must be a deplorable narrowness of mind, that would confine these seats of instruction to the limited views of one or two learned professions. to the praise of this age be it spoken, a more open and generous way of thinking begins now universally to prevail. the attainment of liberal and genteel accomplishments, though not of the intellectual sort, has been thought by our wisest and most affectionate patrons[c], and very lately by the whole university[d], no small improvement of our antient plan of education; and therefore i may safely affirm that nothing (how _unusual_ soever) is, under due regulations, improper to be _taught_ in this place, which is proper for a gentleman to _learn_. but that a science, which distinguishes the criterions of right and wrong; which teaches to establish the one, and prevent, punish, or redress the other; which employs in it's theory the noblest faculties of the soul, and exerts in it's practice the cardinal virtues of the heart; a science, which is universal in it's use and extent, accommodated to each individual, yet comprehending the whole community; that a science like this should have ever been deemed unnecessary to be studied in an university, is matter of astonishment and concern. surely, if it were not before an object of academical knowlege, it was high time to make it one; and to those who can doubt the propriety of it's reception among us (if any such there be) we may return an answer in their own way; that ethics are confessedly a branch of academical learning, and aristotle _himself has said_, speaking of the laws of his own country, that jurisprudence or the knowlege of those laws is the principal and most[e] perfect branch of ethics. [footnote c: lord chancellor clarendon, in his dialogue of education, among his tracts, p. . appears to have been very solicitous, that it might be made "a part of the ornament of our learned academies to teach the qualities of riding, dancing, and fencing, at those hours when more serious exercises should be intermitted."] [footnote d: by accepting in full convocation the remainder of lord clarendon's history from his noble descendants, on condition to apply the profits arising from it's publication to the establishment of a _manage_ in the university.] [footnote e: [greek: teleia malista aretê, hoti tês teleias aretês chrêsis esti.] _ethic. ad nicomach._ _l._ . _c._ .] from a thorough conviction of this truth, our munificent benefactor mr viner, having employed above half a century in amassing materials for new modelling and rendering more commodious the rude study of the laws of the land, consigned both the plan and execution of these his public-spirited designs to the wisdom of his parent university. resolving to dedicate his learned labours "to the benefit of posterity and the perpetual service of his country[f]," he was sensible he could not perform his resolutions in a better and more effectual manner, than by extending to the youth of this place those assistances, of which he so well remembered and so heartily regretted the want. and the sense, which the university has entertained of this ample and most useful benefaction, must appear beyond a doubt from their gratitude in receiving it with all possible marks of esteem[g]; from their alacrity and unexampled dispatch in carrying it into execution[h]; and, above all, from the laws and constitutions by which they have effectually guarded it from the neglect and abuse to which such institutions are liable[i]. we have seen an universal emulation, who best should understand, or most faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who are most distinguished by their quality, their fortune, their station, their learning, or their experience, have appeared the most zealous to promote the success of mr viner's establishment. [footnote f: see the preface to the eighteenth volume of his abridgment.] [footnote g: mr viner is enrolled among the public benefactors of the university by decree of convocation.] [footnote h: mr viner died june , . his effects were collected and settled, near a volume of his work printed, almost the whole disposed of, and the accounts made up, in a year and a half from his decease, by the very diligent and worthy administrators with the will annexed, (dr west and dr good of magdalene, dr whalley of oriel, mr buckler of all souls, and mr betts of university college) to whom that care was consigned by the university. another half year was employed in considering and settling a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by convocation on the d of july, . the professor was elected on the th of october following, and two scholars on the succeeding day. and, lastly, it was agreed at the annual audit in , to establish a fellowship; and a fellow was accordingly elected in january following.--the residue of this fund, arising from the sale of mr viner's abridgment, will probably be sufficient hereafter to found another fellowship and scholarship, or three more scholarships, as shall be thought most expedient.] [footnote i: the statutes are in substance as follows: . that the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and professor, and afterwards reported to convocation. . that a professorship of the laws of england be established, with a salary of two hundred pounds _per annum_; the professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil law in the university of oxford, of ten years standing from his matriculation; and also a barrister at law of four years standing at the bar. . that such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn public lecture on the laws of england, and in the english language, in every academical term, at certain stated times previous to the commencement of the common law term; or forfeit twenty pounds for every omission to mr viner's general fund: and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors; or, if permanent, both the cause and the deputy to be annually approved by convocation) do yearly read one complete course of lectures on the laws of england, and in the english language, consisting of sixty lectures at the least, to be read during the university term time, with such proper intervals that not more than four lectures may fall within any single week: that the professor do give a month's notice of the time when the course is to begin, and do read _gratis_ to the scholars of mr viner's foundation; but may demand of other auditors such gratuity as shall be settled from time to time by decree of convocation: and that, for every of the said sixty lectures omitted, the professor, on complaint made to the vice-chancellor within the year, do forfeit forty shillings to mr viner's general fund; the proof of having performed his duty to lie upon the said professor. . that every professor do continue in his office during life, unless in case of such misbehaviour as shall amount to bannition by the university statutes; or unless he deserts the profession of the law by betaking himself to another profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of another flagrant omission: in any of which cases he be deprived by the vice-chancellor, with consent of the house of convocation. . that such a number of fellowships with a stipend of fifty pounds _per annum_, and scholarships with a stipend of thirty pounds be established, as the convocation shall from time to time ordain, according to the state of mr viner's revenues. . that every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of arts or bachelor of civil law, and a member of some college or hall in the university of oxford; the scholars of this foundation or such as have been scholars (if qualified and approved of by convocation) to have the preference: that, if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university two months in every year, or in case of non-residence do forfeit the stipend of that year to mr viner's general fund. . that every scholar be elected by convocation, and at the time of election be unmarried, and a member of some college or hall in the university of oxford, who shall have been matriculated twenty four calendar months at the least: that he do take the degree of bachelor of civil law with all convenient speed; (either proceeding in arts or otherwise) and previous to his taking the same, between the second and eighth year from his matriculation, be bound to attend two courses of the professor's lectures, to be certified under the professor's hand; and within one year after taking the same be called to the bar: that he do annually reside six months till he is of four years standing, and four months from that time till he is master of arts or bachelor of civil law; after which he be bound to reside two months in every year; or, in case of non-residence, do forfeit the stipend of that year to mr viner's general fund. . that the scholarships do become void in case of non-attendance on the professor, or not taking the degree of bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors: and that both fellowships and scholarships do expire at the end of ten years after each respective election; and become void in case of gross misbehaviour, non-residence for two years together, marriage, not being called to the bar within the time before limited, (being duly admonished so to be by the vice-chancellor and proctors) or deserting the profession of the law by following any other profession: and that in any of these cases the vice-chancellor, with consent of convocation, do declare the place actually void. . that in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be ratably divided between the predecessor or his representatives, and the successor; and that a new election be had within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case it be deferred to the first week in the next full term. and that before any convocation shall be held for such election, or for any other matter relating to mr viner's benefaction, ten days public notice be given to each college and hall of the convocation, and the cause of convoking it.] the advantages that might result to the science of the law itself, when a little more attended to in these seats of knowlege, perhaps would be very considerable. the leisure and abilities of the learned in these retirements might either suggest expedients, or execute those dictated by wiser heads[k], for improving it's method, retrenching it's superfluities, and reconciling the little contrarieties, which the practice of many centuries will necessarily create in any human system: a task, which those who are deeply employed in business, and the more active scenes of the profession, can hardly condescend to engage in. and as to the interest, or (which is the same) the reputation of the universities themselves, i may venture to pronounce, that if ever this study should arrive to any tolerable perfection either here or at cambridge, the nobility and gentry of this kingdom would not shorten their residence upon this account, nor perhaps entertain a worse opinion of the benefits of academical education. neither should it be considered as a matter of light importance, that while we thus extend the _pomoeria_ of university learning, and adopt a new tribe of citizens within these philosophical walls, we interest a very numerous and very powerful profession in the preservation of our rights and revenues. [footnote k: see lord bacon's proposals and offer of a digest.] for i think it is past dispute that those gentlemen, who resort to the inns of court with a view to pursue the profession, will find it expedient (whenever it is practicable) to lay the previous foundations of this, as well as every other science, in one of our learned universities. we may appeal to the experience of every sensible lawyer, whether any thing can be more hazardous or discouraging than the usual entrance on the study of the law. a raw and unexperienced youth, in the most dangerous season of life, is transpanted [transcriber's note: transplanted] on a sudden into the midst of allurements to pleasure, without any restraint or check but what his own prudence can suggest; with no public direction in what course to pursue his enquiries; no private assistance to remove the distresses and difficulties, which will always embarass a beginner. in this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or else by an assiduous attendance on the courts to pick up theory and practice together, sufficient to qualify him for the ordinary run of business. how little therefore is it to be wondered at, that we hear of so frequent miscarriages; that so many gentlemen of bright imaginations grow weary of so unpromising a search[l], and addict themselves wholly to amusements, or other less innocent pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives! [footnote l: sir henry spelman, in the preface to his glossary, gives us a very lively picture of his own distress upon this occasion. "_emisit me mater londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis humeris sustinendam, excidit mihi (fateor) animus, &c._"] the evident want of some assistance in the rudiments of legal knowlege, has given birth to a practice, which, if ever it had grown to be general, must have proved of extremely pernicious consequence: i mean the custom, by some so very warmly recommended, to drop all liberal education, as of no use to lawyers; and to place them, in it's stead, as [transcriber's note: at] the desk of some skilful attorney; in order to initiate them early in all the depths of practice, and render them more dextrous in the mechanical part of business. a few instances of particular persons, (men of excellent learning, and unblemished integrity) who, in spight of this method of education, have shone in the foremost ranks of the bar, have afforded some kind of sanction to this illiberal path to the profession, and biassed many parents, of shortsighted judgment, in it's favour: not considering, that there are some geniuses, formed to overcome all disadvantages, and that from such particular instances no general rules can be formed; nor observing, that those very persons have frequently recommended by the most forcible of all examples, the disposal of their own offspring, a very different foundation of legal studies, a regular academical education. perhaps too, in return, i could now direct their eyes to our principal seats of justice, and suggest a few hints, in favour of university learning[m]:--but in these all who hear me, i know, have already prevented me. [footnote m: the four highest offices in the law were at that time filled by gentlemen, two of whom had been fellows of all souls college; another, student of christ-church; and the fourth a fellow of trinity college, cambridge.] making therefore due allowance for one or two shining exceptions, experience may teach us to foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors[n], will find he has begun at the wrong end. if practice be the whole he is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: _ita lex scripta est_[o] is the utmost his knowlege will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn _a priori_, from the spirit of the laws and the natural foundations of justice. [footnote n: see kennet's life of somner. p. .] [footnote o: _ff._ . . .] nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit to the drudgery of servitude and the manual labour of copying the trash of an office) should this infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of distinction or learning at the bar. and what the consequence may be, to have the interpretation and enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall wholly into the hands of obscure or illiterate men, is matter of very public concern. the inconveniences here pointed out can never be effectually prevented, but by making academical education a previous step to the profession of the common law, and at the same time making the rudiments of the law a part of academical education. for sciences are of a sociable disposition, and flourish best in the neighbourhood of each other: nor is there any branch of learning, but may be helped and improved by assistances drawn from other arts. if therefore the student in our laws hath formed both his sentiments and style, by perusal and imitation of the purest classical writers, among whom the historians and orators will best deserve his regard; if he can reason with precision, and separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix his attention, and steadily pursue truth through any the most intricate deduction, by the use of mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the several branches of genuine, experimental, philosophy; if he has impressed on his mind the sound maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly, he has contemplated those maxims reduced to a practical system in the laws of imperial rome; if he has done this or any part of it, (though all may be easily done under as able instructors as ever graced any seats of learning) a student thus qualified may enter upon the study of the law with incredible advantage and reputation. and if, at the conclusion, or during the acquisition of these accomplishments, he will afford himself here a year or two's farther leisure, to lay the foundation of his future labours in a solid scientifical method, without thirsting too early to attend that practice which it is impossible he should rightly comprehend, he will afterwards proceed with the greatest ease, and will unfold the most intricate points with an intuitive rapidity and clearness. i shall not insist upon such motives as might be drawn from principles of oeconomy, and are applicable to particulars only: i reason upon more general topics. and therefore to the qualities of the head, which i have just enumerated, i cannot but add those of the heart; affectionate loyalty to the king, a zeal for liberty and the constitution, a sense of real honour, and well grounded principles of religion; as necessary to form a truly valuable english lawyer, a hyde, a hale, or a talbot. and, whatever the ignorance of some, or unkindness of others, may have heretofore untruly suggested, experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honour and religion, are no where to be found in more high perfection than in the two universities of this kingdom. before i conclude, it may perhaps be expected, that i lay before you a short and general account of the method i propose to follow, in endeavouring to execute the trust you have been pleased to repose in my hands. and in these solemn lectures, which are ordained to be read at the entrance of every term, (more perhaps to do public honour to this laudable institution, than for the private instruction of individuals[p]) i presume it will best answer the intent of our benefactor and the expectation of this learned body, if i attempt to illustrate at times such detached titles of the law, as are the most easy to be understood, and most capable of historical or critical ornament. but in reading the complete course, which is annually consigned to my care, a more regular method will be necessary; and, till a better is proposed, i shall take the liberty to follow the same that i have already submitted to the public[q]. to fill up and finish that outline with propriety and correctness, and to render the whole intelligible to the uninformed minds of beginners, (whom we are too apt to suppose acquainted with terms and ideas, which they never had opportunity to learn) this must be my ardent endeavour, though by no means my promise to accomplish. you will permit me however very briefly to describe, rather what i conceive an academical expounder of the laws should do, than what i have ever known to be done. [footnote p: see lowth's _oratio crewiana_, p. .] [footnote q: the analysis of the laws of england, first published, _a.d._ , and exhibiting the order and principal divisions of the ensuing commentaries; which were originally submitted to the university in a private course of lectures, _a.d._ .] he should consider his course as a general map of the law, marking out the shape of the country, it's connexions and boundaries, it's greater divisions and principal cities: it is not his business to describe minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet. his attention should be engaged, like that of the readers in fortescue's inns of chancery, "in tracing out the originals and as it were the elements of the law." for if, as justinian[r] has observed, the tender understanding of the student be loaded at the first with a multitude and variety of matter, it will either occasion him to desert his studies, or will carry him heavily through them, with much labour, delay, and despondence. these originals should be traced to their fountains, as well as our distance will permit; to the customs of the britons and germans, as recorded by caesar and tacitus; to the codes of the northern nations on the continent, and more especially to those of our own saxon princes; to the rules of the roman law, either left here in the days of papinian, or imported by vacarius and his followers; but, above all, to that inexhaustible reservoir of legal antiquities and learning, the feodal law, or, as spelman[s] has entitled it, the law of nations in our western orb. these primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shewn how far they are connected with, or have at any time been affected by, the civil transactions of the kingdom. [footnote r: _incipientibus nobis exponere jura populi romani, ita videntur tradi posse commodissime, si primo levi ac simplici via singula tradantur: alioqui, si statim ab initio rudem adhuc & infirmum animum studiosi multitudine ac varietate rerum oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad id perducemus, ad quod leviore via ductus, sine magno labore & sine ulla diffidentia maturius perduci potuisset._ _inst._ . . .] [footnote s: of parliaments. .] a plan of this nature, if executed with care and ability, cannot fail of administring a most useful and rational entertainment to students of all ranks and professions; and yet it must be confessed that the study of the laws is not merely a matter of amusement: for as a very judicious writer[t] has observed upon a similar occasion, the learner "will be considerably disappointed if he looks for entertainment without the expence of attention." an attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favorite recreation or exercise. and this attention is not equally necessary to be exerted by every student upon every occasion. some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. to others i may venture to apply, with a slight alteration, the words of sir john fortescue[u], when first his royal pupil determines to engage in this study. "it will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. it will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the law, even to their original elements. therefore in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. for, though such knowlege as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perspicacity, that knowlege which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements." [footnote t: dr taylor's preface to elem. of civil law.] [footnote u: _tibi, princeps, necesse non erit mysteria legis angliae longo disciplinatu rimare. sufficiet tibi,--_et fatis _denominari legista mereberis, si legum principia & causas, usque ad elementa, discipuli more indagaveris.--quare tu, princeps serenissime, parvo tempore, parva industria, sufficienter eris in legibus regni angliae eruditus, dummodo ad ejus apprehensionem tu conferas animum tuum.--nosco namque ingenii tui perspicacitatem, quo audacter pronuntio quod in legibus illis (licet earum peritia, qualis judicibus necessaria est, vix viginti annorum lucubrationibus acquiratur) tu doctrinam principi congruam in anno uno sufficienter nancisceris; nec interim militarem disciplinam, ad quam tam ardenter anhelas, negliges; sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._ _c._ .] to the few therefore (the very few, i am persuaded,) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the aukward interval from childhood to twenty one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these mr viner gives no invitation to an entertainment which they never can relish. but to the long and illustrious train of noble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowlege, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflexions can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an institution which may instruct the rising generation in the wisdom of our civil polity, and inform them with a desire to be still better acquainted with the laws and constitution of their country. section the second. of the nature of laws in general. law, in it's most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate, or inanimate, rational or irrational. thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. and it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey. thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. when he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. and, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it's direction; as that the hand shall describe a given space in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it's formation. if we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. the whole progres of plants, from the seed to the root, and from thence to the seed again;--the method of animal nutrition, digestion, secretion, and all other branches of vital oeconomy;--are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator. this then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. but laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of _human_ action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour. man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. a being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependance will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependance consists. this principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependance of the other is greater or less, absolute or limited. and consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will. this will of his maker is called the law of nature. for as god, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. considering the creator only as a being of infinite _power_, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. but as he is also a being of infinite _wisdom_, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. these are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one it's due; to which three general precepts justinian[a] has reduced the whole doctrine of law. [footnote a: _juris praecepta sunt haec, honeste vivere, alterum non laedere, suum cuique tribuere._ _inst._ . . .] but if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it's inseparable companion. as therefore the creator is a being, not only of infinite _power_, and _wisdom_, but also of infinite _goodness_, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. for he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. in consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." this is the foundation of what we call ethics, or natural law. for the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it. this law of nature, being co-eval with mankind and dictated by god himself, is of course superior in obligation to any other. it is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. but in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend the most effectually to our own substantial happiness. and if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. but every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. this has given manifold occasion for the benign interposition of divine providence; which, in companion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. the doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. these precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. but we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. as then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. because one is the law of nature, expressly declared so to be by god himself; the other is only what, by the assistance of human reason, we imagine to be that law. if we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together. upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. there is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. and herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. to instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. those human laws, that annex a punishment to it, do not at all increase it's moral guilt, or superadd any fresh obligation _in foro conscientiae_ to abstain from it's perpetration. nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. but with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so. if man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of god. neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. but man was formed for society; and, as is demonstrated by the writers on this subject[b], is neither capable of living alone, nor indeed has the courage to do it. however, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourse. hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations;" which, as none of these states will acknowlege a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law[c] very justly observes, that _quod naturalis ratio inter omnes homines constituit, vocatur jus gentium_. [footnote b: puffendorf, _l._ . _c._ . compared with barbeyrac's commentary.] [footnote c: _ff._ . . .] thus much i thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before i proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by justinian[d], "_jus civile est quod quisque sibi populus constituit_." i call it _municipal_ law, in compliance with common speech; for, tho' strictly that expression denotes the particular customs of one single _municipium_ or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs. [footnote d: _inst._ . . .] municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." let us endeavour to explain it's several properties, as they arise out of this definition. and, first, it is a _rule_; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. therefore a particular act of the legislature to confiscate the goods of titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon titius only, and has no relation to the community in general; it is rather a sentence than a law. but an act to declare that the crime of which titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a _rule_. it is also called a _rule_, to distinguish it from _advice_ or _counsel_, which we are at liberty to follow or not, as we see proper; and to judge upon the reasonableness or unreasonableness of the thing advised. whereas our obedience to the _law_ depends not upon _our approbation_, but upon the _maker's will_. counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also. it is also called a _rule_, to distinguish it from a _compact_ or _agreement_; for a compact is a promise proceeding _from_ us, law is a command directed _to_ us. the language of a compact is, "i will, or will not, do this;" that of a law is, "thou shalt, or shalt not, do it." it is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. in compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all. upon these accounts law is defined to be "_a rule_." municipal law is also "a rule _of civil conduct_." this distinguishes municipal law from the natural, or revealed; the former of which is the rule of _moral_ conduct, and the latter not only the rule of moral conduct, but also the rule of faith. these regard man as a creature, and point out his duty to god, to himself, and to his neighbour, considered in the light of an individual. but municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society. it is likewise "a rule _prescribed_." because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. it is requisite that this resolution be notified to the people who are to obey it. but the manner in which this notification is to be made, is matter of very great indifference. it may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of england. it may be notified, _viva voce_, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. it may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like caligula, who (according to dio cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. there is still a more unreasonable method than this, which is called making of laws _ex post facto_; when _after_ an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it; here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust[e]. all laws should be therefore made to commence _in futuro_, and be notified before their commencement; which is implied in the term "_prescribed_." but when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he _might_ know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity. [footnote e: such laws among the romans were denominated _privilegia_, or private laws, of which cicero _de leg._ . . and in his oration _pro domo_, . thus speaks; "_vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus irrogari; id enim est privilegium. nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit_."] but farther: municipal law is "a rule of civil conduct prescribed _by the supreme power in a state_." for legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. wherefore it is requisite to the very essence of a law, that it be made by the supreme power. sovereignty and legislature are indeed convertible terms; one cannot subsist without the other. this will naturally lead us into a short enquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws. the only true and natural foundations of society are the wants and the fears of individuals. not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. this notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. these formed the first society, among themselves; which every day extended it's limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, re-united again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. but though society had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the _sense_ of their weakness and imperfection that _keeps_ mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. and this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all it's parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any. for when society is once formed, government results of course, as necessary to preserve and to keep that society in order. unless some superior were constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. but, as all the members of society are naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? to this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. in general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which are among the attributes of him who is emphatically stiled the supreme being; the three grand requisites, i mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength, or power, to carry this knowlege and intention into action. these are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government. how the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. it is not my business or intention to enter into any of them. however they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the _jura summi imperii_, or the rights of sovereignty, reside. and this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found. the political writers of antiquity will not allow more than three regular forms of government; the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is stiled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. all other species of government, they say, are either corruptions of, or reducible to, these three. by the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. for it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end. in a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than either of the other qualities of government. popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. in aristocracies there is more wisdom to be found, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens; but there is less honesty than in a republic, and less strength than in a monarchy. a monarchy is indeed the most powerful of any, all the sinews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes. thus these three species of government have, all of them, their several perfections and imperfections. democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. and the antients, as was observed, had in general no idea of any other permanent form of government but these three; for though cicero[f] declares himself of opinion, "_esse optime constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice confusa_;" yet tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim; and one that, if effected, could never be lasting or secure[g]. [footnote f: in his fragments _de rep._ _l._ .] [footnote g: "_cunctas nationes et urbes populus, aut primores, aut singuli regunt: delecta ex his, et constituta reipublicae forma laudari facilius quam evenire, vel, si evenit, haud diuturna esse potest._" _ann._ _l._ .] but happily for us of this island, the british constitution has long remained, and i trust will long continue, a standing exception to the truth of this observation. for, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy; and, as the legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the british parliament, and has the supreme disposal of every thing; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous. here then is lodged the sovereignty of the british constitution; and lodged as beneficially as is possible for society. for in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. if the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. if it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. but the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. for if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. the legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to mr locke[h] (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power. [footnote h: on government, part . §. .] having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, i proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, _to prescribe the rule of civil action_. and this may be discovered from the very end and institution of civil states. for a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. if it therefore is to act as one man, it ought to act by one uniform will. but, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any _natural_ union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. it can therefore be no otherwise produced than by a _political_ union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be _law_. thus far as to the _right_ of the supreme power to make laws; but farther, it is it's _duty_ likewise. for since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that it's will. but since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty. and this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him, in order to promote and secure the public tranquillity. from what has been advanced, the truth of the former branch of our definition, is (i trust) sufficiently evident; that "_municipal law is a rule of civil conduct prescribed by the supreme power in a state_." i proceed now to the latter branch of it; that it is a rule so prescribed, "_commanding what is right, and prohibiting what is wrong_." now in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. and when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and to restrain or redress these wrongs. it remains therefore only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and prohibit the other. for this purpose every law may be said to consist of several parts: one, _declaratory_; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, _directory_, whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, _remedial_; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, usually termed the _sanction_, or _vindicatory_ branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty. with regard to the first of these, the _declaratory_ part of the municipal law, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. this doctrine, which before was slightly touched, deserves a more particular explication. those rights then which god and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. on the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. neither do divine or natural _duties_ (such as, for instance, the worship of god, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. the case is the same as to crimes and misdemesnors, that are forbidden by the superior laws, and therefore stiled _mala in se_, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. for that legislature in all these cases acts only, as was before observed, in subordination to the great lawgiver, transcribing and publishing his precepts. so that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong. but with regard to things in themselves indifferent, the case is entirely altered. these become either right or wrong, just or unjust, duties or misdemesnors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. and sometimes, where the thing itself has it's rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. and so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seising another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. thus much for the _declaratory_ part of the municipal law: and the _directory_ stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. the law that says, "thou shalt not steal," implies a declaration that stealing is a crime. and we have seen that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit it. the _remedial_ part of a law is so necessary a consequence of the former two, that laws must be very vague and imperfect without it. for in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. this is what we mean properly, when we speak of the protection of the law. when, for instance, the _declaratory_ part of the law has said "that the field or inheritance, which belonged to titius's father, is vested by his death in titius;" and the _directory_ part has "forbidden any one to enter on another's property without the leave of the owner;" if gaius after this will presume to take possession of the land, the _remedial_ part of the law will then interpose it's office; will make gaius restore the possession to titius, and also pay him damages for the invasion. with regard to the _sanction_ of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather _vindicatory_ than _remuneratory_, or to consist rather in punishments, than in actual particular rewards. because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards. because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty. and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good[i]. for which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are entrusted with the care of putting the laws in execution. [footnote i: locke, hum. und. b. . c. .] of all the parts of a law the most effectual is the _vindicatory_. for it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your noncompliance." we must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. herein is to be found the principal obligation of human laws. legislators and their laws are said to _compel_ and _oblige_; not that by any natural violence they so constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. and, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only _persuade_ and _allure_; nothing is _compulsory_ but punishment. it is held, it is true, and very justly, by the principal of our ethical writers, that human laws are binding upon mens consciences. but if that were the only, or most forcible obligation, the good only would regard the laws, and the bad would set them at defiance. and, true as this principle is, it must still be understood with some restriction. it holds, i apprehend, as to _rights_; and that, when the law has determined the field to belong to titius, it is matter of conscience no longer to withhold or to invade it. so also in regard to _natural duties_, and such offences as are _mala in se_: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. but in relation to those laws which enjoin only _positive duties_, and forbid only such things as are not _mala in se_ but _mala prohibita_ merely, annexing a penalty to noncompliance, here i apprehend conscience is no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked thing; if every such law were a snare for the conscience of the subject. but in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty;" and his conscience will be clear, whichever side of the alternative he thinks proper to embrace. thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare. now this prohibitory law does not make the transgression a moral offence: the only obligation in conscience is to submit to the penalty if levied. i have now gone through the definition laid down of a municipal law; and have shewn that it is "a rule--of civil conduct--prescribed--by the supreme power in a state--commanding what is right, and prohibiting what is wrong:" in the explication of which i have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. before i conclude this section, it may not be amiss to add a few observations concerning the _interpretation_ of laws. when any doubt arose upon the construction of the roman laws, the usage was to state the case to the emperor in writing, and take his opinion upon it. this was certainly a bad method of interpretation. to interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. the answers of the emperor were called his rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions, which had only the nature of things for their guide. the emperor macrinus, as his historian capitolinus informs us, had once resolved to abolish these rescripts, and retain only the general edicts; he could not bear that the hasty and crude answers of such princes as commodus and caracalla should be reverenced as laws. but justinian thought otherwise[k], and he has preserved them all. in like manner the canon laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. contrary to all true forms of reasoning, they argue from particulars to generals. [footnote k: _inst._ . . .] the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by _signs_ the most natural and probable. and these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. let us take a short view of them all. . words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. thus the law mentioned by puffendorf[l], which forbad a layman to _lay hands_ on a priest, was adjudged to extend to him, who had hurt a priest with a weapon. again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. so in the act of settlement, where the crown of england is limited "to the princess sophia, and the heirs of her body, being protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "_heirs of her body_;" which in a legal sense comprize only certain of her lineal descendants. lastly, where words are clearly _repugnant_ in two laws, the later law takes place of the elder: _leges posteriores priores contrarias abrogant_ is a maxim of universal law, as well as of our own constitutions. and accordingly it was laid down by a law of the twelve tables at rome, _quod populus postremum jussit, id jus ratum esto_. [footnote l: l. of n. and n. . . .] . if words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. thus the proeme, or preamble, is often called in to help the construction of an act of parliament. of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. thus, when the law of england declares murder to be felony without benefit of clergy, we must resort to the same law of england to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony. . as to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. thus, when a law of our edward iii. forbids all ecclesiastical persons to purchase _provisions_ at rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to vacant benefices by the pope were called _provisions_, we shall see that the restraint is intended to be laid upon such provisions only. . as to the effects and consequence, the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. therefore the bolognian law, mentioned by puffendorf[m], which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. [footnote m: _l._ . _c._ . §. .] . but, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. for when this reason ceases, the law itself ought likewise to cease with it. an instance of this is given in a case put by cicero, or whoever was the author of the rhetorical treatise inscribed to herennius[n]. there was a law, that those who in a storm forsook the ship should forfeit all property therein; and the ship and lading should belong entirely to those who staid in it. in a dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. by chance the ship came safe to port. the sick man kept possession and claimed the benefit of the law. now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit, which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to it's preservation. [footnote n: _l._ . _c._ .] from this method of interpreting laws, by the reason of them, arises what we call _equity_; which is thus defined by grotius[o], "the correction of that, wherein the law (by reason of its universality) is deficient." for since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. and these are the cases, which, as grotius expresses it, "_lex non exacte definit, sed arbitrio boni viri permittit_." [footnote o: _de aequitate._] equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying it's very essence, and reducing it to a positive law. and, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. and law, without equity, tho' hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. section the third. of the laws of england. the municipal law of england, or the rule of civil conduct prescribed to the inhabitants of this kingdom, may with sufficient propriety be divided into two kinds; the _lex non scripta_, the unwritten, or common law; and the _lex scripta_, the written, or statute law. the _lex non scripta_, or unwritten law, includes not only _general customs_, or the common law properly so called; but also the _particular customs_ of certain parts of the kingdom; and likewise those _particular laws_, that are by custom observed only in certain courts and jurisdictions. when i call these parts of our law _leges non scriptae_, i would not be understood as if all those laws were at present merely _oral_, or communicated from the former ages to the present solely by word of mouth. it is true indeed that, in the profound ignorance of letters which formerly overspread the whole western world, all laws were intirely traditional, for this plain reason, that the nations among which they prevailed had but little idea of writing. thus the british as well as the gallic druids committed all their laws as well as learning to memory[a]; and it is said of the primitive saxons here, as well as their brethren on the continent, that _leges sola memoria et usu retinebant_[b]. but with us at present the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. however i therefore stile these parts of our law _leges non scriptae_, because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. in like manner as aulus gellius defines the _jus non scriptum_ to be that, which is "_tacito et illiterato hominum consensu et moribus expressum_." [footnote a: _caes. de b. g._ _lib._ . _c._ .] [footnote b: spelm. gl. .] our antient lawyers, and particularly fortescue[c], insist with abundance of warmth, that these customs are as old as the primitive britons, and continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. this may be the case as to some; but in general, as mr selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless by the intermixture of adventitious nations, the romans, the picts, the saxons, the danes, and the normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established: thereby in all probability improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. our laws, saith lord bacon[d], are mixed as our language: and as our language is so much the richer, the laws are the more complete. [footnote c: _c._ .] [footnote d: see his proposals for a digest.] and indeed our antiquarians and first historians do all positively assure us, that our body of laws is of this compounded nature. for they tell us, that in the time of alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his _dome-book_ or _liber judicialis_, for the general use of the whole kingdom. this book is said to have been extant so late as the reign of king edward the fourth, but is now unfortunately lost. it contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemesnors, and the forms of judicial proceedings. thus much may at least be collected from that injunction to observe it, which we find in the laws of king edward the elder, the son of alfred[e]. "_omnibus qui reipublicae praesunt, etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro_ (_saxonice_, [anglo-saxon: dom-bec]) _scriptum habetur; nec quicquam formident quin jus commune_ (_saxonice_, [anglo-saxon: folcrihte]) _audacter libereque dicant._" [footnote e: _c._ .] but the irruption and establishment of the danes in england which followed soon after, introduced new customs and caused this code of alfred in many provinces to fall into disuse; or at least to be mixed and debased with other laws of a coarser alloy. so that about the beginning of the eleventh century there were three principal systems of laws prevailing in different districts. . the _mercen-lage_, or mercian laws, which were observed in many of the midland counties, and those bordering on the principality of wales; the retreat of the antient britons; and therefore very probably intermixed with the british or druidical customs. . the _west-saxon-lage_, or laws of the west saxons, which obtained in the counties to the south and west of the island, from kent to devonshire. these were probably much the same with the laws of alfred abovementioned, being the municipal law of the far most considerable part of his dominions, and particularly including berkshire, the seat of his peculiar residence. . the _dane-lage_, or danish law, the very name of which speaks it's original and composition. this was principally maintained in the rest of the midland counties, and also on the eastern coast, the seat of that piratical people. as for the very northern provinces, they were at that time under a distinct government[f]. [footnote f: hal. hist. .] out of these three laws, roger hoveden[g] and ranulphus cestrensis[h] inform us, king edward the confessor extracted one uniform law or digest of laws, to be observed throughout the whole kingdom; though hoveden and the author of an old manuscript chronicle[i] assure us likewise, that this work was projected and begun by his grandfather king edgar. and indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, formed from an assemblage of little provinces, governed by peculiar customs. as in portugal, under king edward, about the beginning of the fifteenth century[k]. in spain under alonzo x, who about the year executed the plan of his father st. ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled _las partidas_[l]. and in sweden about the same aera, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and intitled the _land's lagh_, being analogous to the _common law_ of england[m]. [footnote g: _in hen. ii._] [footnote h: _in edw. confessor._] [footnote i: _in seld. ad eadmer._ .] [footnote k: mod. un. hist. xxii. .] [footnote l: ibid. xx. .] [footnote m: ibid. xxxiii. , .] both these undertakings, of king edgar and edward the confessor, seem to have been no more than a new edition, or fresh promulgation, of alfred's code or dome-book, with such additions and improvements as the experience of a century and an half had suggested. for alfred is generally stiled by the same historians the _legum anglicanarum conditor_, as edward the confessor is the _restitutor_. these however are the laws which our histories so often mention under the name of the laws of edward the confessor; which our ancestors struggled so hardly to maintain, under the first princes of the norman line; and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. these are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the twelfth century a new roman empire over most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of england, perhaps upon the same account, has been rather improved than debased. these, in short, are the laws which gave rise and original to that collection of maxims and customs, which is now known by the name of the common law. a name either given to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law _common_ to all the realm, the _jus commune_ or _folcright_ mentioned by king edward the elder, after the abolition of the several provincial customs and particular laws beforementioned. but though this is the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long established custom. whence it is that in our law the goodness of a custom depends upon it's having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. this it is that gives it it's weight and authority; and of this nature are the maxims and customs which compose the common law, or _lex non scripta_, of this kingdom. this unwritten, or common, law is properly distinguishable into three kinds: . general customs; which are the universal rule of the whole kingdom, and form the common law, in it's stricter and more usual signification. . particular customs; which for the most part affect only the inhabitants of particular districts. . certain particular laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction. i. as to general customs, or the common law, properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of justice are guided and directed. this, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer;--that the eldest son alone is heir to his ancestor;--that property may be acquired and transferred by writing;--that a deed is of no validity unless sealed;--that wills shall be construed more favorably, and deeds more strictly;--that money lent upon bond is recoverable by action of debt;--that breaking the public peace is an offence, and punishable by fine and imprisonment;--all these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support. some have divided the common law into two principal grounds or foundations: . established customs; such as that where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest: and . established rules and maxims; as, "that the king can do no wrong, that no man shall be bound to accuse himself," and the like. but i take these to be one and the same thing. for the authority of these maxims rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it. but here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? the answer is, by the judges in the several courts of justice. they are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. their knowlege of that law is derived from experience and study; from the "_viginti annorum lucubrationes_," which fortescue[n] mentions; and from being long personally accustomed to the judicial decisions of their predecessors. and indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. the judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of _records_, in publick repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. and therefore, even so early as the conquest, we find the "_praeteritorum memoria eventorum_" reckoned up as one of the chief qualifications of those who were held to be "_legibus patriae optime instituti_[o]." for it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. but even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. for if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was _bad law_, but that it was _not law_; that is, that it is not the established custom of the realm, as has been erroneously determined. and hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. not that the particular reason of every rule in the law can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded[p]. and it hath been an antient observation in the laws of england, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation. [footnote n: _cap._ .] [footnote o: seld. review of tith. c. .] [footnote p: herein agreeing with the civil law, _ff._ . . , . "_non omnium, quae a majoribus nostris constituta sunt, ratio reddi potest. et ideo rationes eorum quae constituuntur, inquiri non oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"] the doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. to illustrate this doctrine by examples. it has been determined, time out of mind, that a brother of the half blood (i.e. where they have only one parent the same, and the other different) shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. for herein there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. and therefore, on account of a supposed hardship upon the half brother, a modern judge might wish it had been otherwise settled; yet it is not in his power to alter it. but if any court were now to determine, that an elder brother of the half blood might enter upon and seise any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was _not law_. so that _the law_, and the _opinion of the judge_ are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may _mistake_ the law. upon the whole however, we may take it as a general rule, "that the decisions of courts of justice are the evidence of what is common law:" in the same manner as, in the civil law, what the emperor had once determined was to serve for a guide for the future[q]. [footnote q: "_si imperialis majestas causam cognitionaliter examinaverit, et partibus cominus constitutis sententiam dixerit, omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua producta est, sed et in omnibus similibus._" _c._ . . .] the decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of _reports_ which furnish the lawyer's library. these reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides; and the reasons the court gave for their judgment; taken down in short notes by persons present at the determination. and these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. the reports are extant in a regular series from the reign of king edward the second inclusive; and from his time to that of henry the eighth were taken by the prothonotaries, or chief scribes of the court, at the expence of the crown, and published _annually_, whence they are known under the denomination of the _year books_. and it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day: for, though king james the first at the instance of lord bacon appointed two reporters with a handsome stipend for this purpose, yet that wise institution was soon neglected, and from the reign of henry the eighth to the present time this task has been executed by many private and cotemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. some of the most valuable of the antient reports are those published by lord chief justice coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. however his writings are so highly esteemed, that they are generally cited without the author's name[r]. [footnote r: his reports, for instance, are stiled, [greek: kat' exochên], _the reports_; and in quoting them we usually say, or rep. not or coke's rep. as in citing other authors. the reports of judge croke are also cited in a peculiar manner, by the name of those princes, in whose reigns the cases reported in his three volumes were determined; viz. qu. elizabeth, k. james, and k. charles the first; as well as by the number of each volume. for sometimes we call them, , , and cro. but more commonly cro. eliz. cro. jac. and cro. car.] besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. such are glanvil and bracton, britton and fleta, littleton and fitzherbert, with some others of antient date, whose treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. one of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, sir edward coke; who hath written four volumes of institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. the first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by judge littleton in the reign of edward the fourth. this comment is a rich mine of valuable common law learning, collected and heaped together from the antient reports and year books, but greatly defective in method[s]. the second volume is a comment upon many old acts of parliament, without any systematical order; the third a more methodical treatise of the pleas of the crown; and the fourth an account of the several species of courts[t]. [footnote s: it is usually cited either by the name of co. litt. or as inst.] [footnote t: these are cited as , , or inst. without any author's name. an honorary distinction, which, we observed, was paid to the works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as ventris, leonard, siderfin, and the like.] and thus much for the first ground and chief corner stone of the laws of england, which is, general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law. the roman law, as practised in the times of it's liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it, when the written law is deficient. though the reasons alleged in the digest[u] will fully justify our practice, in making it of equal authority with, when it is not contradicted by, the written law. "for since, says julianus, the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people hath approved without writing ought also to bind every body. for where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?" thus did they reason while rome had some remains of her freedom; but when the imperial tyranny came to be fully established, the civil laws speak a very different language. "_quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat_," says ulpian[w]. "_imperator solus et conditor et interpres legis existimatur_," says the code[x]. and again, "_sacrilegii instar est rescripto principis obviare_[y]." and indeed it is one of the characteristic marks of english liberty, that our common law depends upon custom; which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people. [footnote u: _ff._ . . .] [footnote w: _ff._ . . .] [footnote x: _c._ . . .] [footnote y: _c._ . . .] ii. the second branch of the unwritten laws of england are particular customs, or laws which affect only the inhabitants of particular districts. these particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by king alfred, and afterwards by king edgar and edward the confessor: each district mutually sacrificing some of it's own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. but, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament[z]. [footnote z: mag. cart. c. .-- edw. iii. st. . c. .-- edw. iii. st. . c. .--and hen. iv. c. .] such is the custom of gavelkind in kent and some other parts of the kingdom (though perhaps it was also general till the norman conquest) which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike: and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.--such is the custom that prevails in divers antient boroughs, and therefore called borough-english, that the youngest son shall inherit the estate, in preference to all his elder brothers.--such is the custom in other boroughs that a widow shall be intitled, for her dower, to all her husband's lands; whereas at the common law she shall be endowed of one third part only.--such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold-tenants that hold of the said manors.--such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shewn, depends entirely upon immemorial and established usage.--such, lastly, are many particular customs within the city of london, with regard to trade, apprentices, widows, orphans, and a variety of other matters; which are all contrary to the general law of the land, and are good only by special custom, though those of london are also confirmed by act of parliament[a]. [footnote a: rep. . cro. car. .] to this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants or _lex mercatoria_; which, however different from the common law, is allowed for the benefit of trade, to be of the utmost validity in all commercial transactions; the maxim of law being, that "_cuilibet in sua arte credendum est_." the rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance. and first we will consider the rules of proof. as to gavelkind, and borough-english, the law takes particular notice of them[b], and there is no occasion to prove that such customs actually exist, but only that the lands in question are subject thereto. all other private customs must be particularly pleaded[c], and as well the existence of such customs must be shewn, as that the thing in dispute is within the custom alleged. the trial in both cases (both to shew the existence of the custom, as, "that in the manor of dale lands shall descend only to the heirs male, and never to the heirs female;" and also to shew that the lands in question are within that manor) is by a jury of twelve men, and not by the judges, except the same particular custom has been before tried, determined, and recorded in the same court[d]. [footnote b: co. litt. _b._] [footnote c: litt. §. .] [footnote d: dr and st. . .] the customs of london differ from all others in point of trial: for, if the existence of the custom be brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and aldermen by the mouth of their recorder[e]; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c, for then the law permits them not to certify on their own behalf[f]. [footnote e: cro. car. .] [footnote f: hob. .] when a custom is actually proved to exist, the next enquiry is into the legality of it; for if it is not a good custom it ought to be no longer used. "_malus usus abolendus est_" is an established maxim of the law[g]. to make a particular custom good, the following are necessary requisites. [footnote g: litt. §. . inst. .] . that it have been used so long, that the memory of man runneth not to the contrary. so that if any one can shew the beginning of it, it is no good custom. for which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist[h]. [footnote h: co. litt. _b._] . it must have been _continued_. any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. but this must be understood with regard to an interruption of the _right_; for an interruption of the _possession_ only, for ten or twenty years, will not destroy the custom[i]. as if i have a right of way by custom over another's field, the custom is not destroyed, though i do not pass over it for ten years; it only becomes more difficult to prove: but if the _right_ be any how discontinued for a day, the custom is quite at an end. [footnote i: co. litt. _b._] . it must have been _peaceable_, and acquiesced in; not subject to contention and dispute[k]. for as customs owe their original to common consent, their being immemorially disputed either at law or otherwise is a proof that such consent was wanting. [footnote k: co. litt. .] . customs must be _reasonable_[l]; or rather, taken negatively, they must not be unreasonable. which is not always, as sir edward coke says[m], to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. thus a custom in a parish, that no man shall put his beasts into the common till the third of october, would be good; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. but a custom that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for peradventure the lord will never put in his; and then the tenants will lose all their profits[n]. [footnote l: litt. §. .] [footnote m: inst. .] [footnote n: co. copyh. §. .] . customs ought to be _certain_. a custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good[o]. a custom, to pay two pence an acre in lieu of tythes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier of the land pleases, is bad for it's uncertainty. yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good: though the value is a thing uncertain. for the value may at any time be ascertained; and the maxim of law is, _id certum est, quod certum reddi potest_. [footnote o: roll. abr. .] . customs, though established by consent, must be (when established) _compulsory_; and not left to the option of every man, whether he will use them or no. therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and, indeed, no custom at all. . lastly, customs must be _consistent_ with each other: one custom cannot be set up in opposition to another. for if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs is absurd. therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. he ought rather to deny the existence of the former custom[p]. [footnote p: rep. .] next, as to the allowance of special customs. customs, in derogation of the common law, must be construed strictly. thus, by the custom of gavelkind, an infant of fifteen years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. yet this custom does not impower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued[q]. and, moreover, all special customs must submit to the king's prerogative. therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone[r]. and thus much for the second part of the _leges non scriptae_, or those particular customs which affect particular persons or districts only. [footnote q: co. cop. §. .] [footnote r: co. litt. _b._] iii. the third branch of them are those peculiar laws, which by custom are adopted and used only in certain peculiar courts and jurisdictions. and by these i understand the civil and canon laws. it may seem a little improper at first view to rank these laws under the head of _leges non scriptae_, or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. but i do this, after the example of sir matthew hale[s], because it is most plain, that it is not on account of their being _written_ laws, that either the canon law, or the civil law, have any obligation within this kingdom; neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws, or acts of parliament. they bind not the subjects of england, because their materials were collected from popes or emperors; were digested by justinian, or declared to be authentic by gregory. these considerations give them no authority here: for the legislature of england doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any, the meanest, of it's subjects. but all the strength that either the papal or imperial laws have obtained in this realm, or indeed in any other kingdom in europe, is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the _leges non scriptae_, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the _leges scriptae_, or statute law. this is expressly declared in those remarkable words of the statute hen. viii. c. . addressed to the king's royal majesty.--"this your grace's realm, recognizing no superior under god but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained _within_ this realm for the wealth of the same; or to such other, as by sufferance of your grace and your progenitors, the people of this your realm, have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the _customed_ and antient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and custom; and none otherwise." [footnote s: hist. c.l. c. .] by the civil law, absolutely taken, is generally understood the civil or municipal law of the roman empire, as comprized in the institutes, the code, and the digest of the emperor justinian, and the novel constitutions of himself and some of his successors. of which, as there will frequently be occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and general account. the roman law (founded first upon the regal constitutions of their antient kings, next upon the twelve tables of the _decemviri_, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the _responsa prudentum_ or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or as livy expresses it[t], "_tam immensus aliarum super alias acervatarum legum cumulus_," that they were computed to be many camels' load by an author who preceded justinian[u]. this was in part remedied by the collections of three private lawyers, gregorius, hermogenes, and papirius; and then by the emperor theodosius the younger, by whose orders a code was compiled, _a.d._ , being a methodical collection of all the imperial constitutions then in force: which theodosian code was the only book of civil law received as authentic in the western part of europe till many centuries after; and to this it is probable that the franks and goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. for justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by tribonian and other lawyers, about the year . [footnote t: _l._ . _c._ .] [footnote u: taylor's elements of civil law. .] this consists of, . the institutes, which contain the elements or first principles of the roman law, in four books. . the digests, or pandects, in fifty books, containing the opinions and writings of eminent lawyers, digested in a systematical method. . a new code, or collection of imperial constitutions, the lapse of a whole century having rendered the former code, of theodosius, imperfect. . the novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise. these form the body of roman law, or _corpus juris civilis_, as published about the time of justinian: which however fell soon into neglect and oblivion, till about the year , when a copy of the digests was found at amalfi in italy; which accident, concurring with the policy of the romish ecclesiastics[w], suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded. [footnote w: see §. . pag. .] the canon law is a body of roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. this is compiled from the opinions of the antient latin fathers, the decrees of general councils, the decretal epistles and bulles of the holy see. all which lay in the same disorder and confusion as the roman civil law, till about the year , one gratian an italian monk, animated by the discovery of justinian's pandects at amalfi, reduced them into some method in three books, which he entitled _concordia discordantium canonum_, but which are generally known by the name of _decretum gratiani_. these reached as low as the time of pope alexander iii. the subsequent papal decrees, to the pontificate of gregory ix, were published in much the same method under the auspices of that pope, about the year , in five books entitled _decretalia gregorii noni_. a sixth book was added by boniface viii, about the year , which is called _sextus decretalium_. the clementine constitutions, or decrees of clement v, were in like manner authenticated in by his successor john xxii; who also published twenty constitutions of his own, called the _extravagantes joannis_: all which in some measure answer to the novels of the civil law. to these have been since added some decrees of later popes in five books, called _extravagantes communes_. and all these together, gratian's decree, gregory's decretals, the sixth decretal, the clementine constitutions, and the extravagants of john and his successors, form the _corpus juris canonici_, or body of the roman canon law. besides these pontificial collections, which during the times of popery were received as authentic in this island, as well as in other parts of christendom, there is also a kind of national canon law, composed of _legatine_ and _provincial_ constitutions, and adapted only to the exigencies of this church and kingdom. the _legatine_ constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals otho and othobon, legates from pope gregory ix and pope adrian iv, in the reign of king henry iii about the years and . the _provincial_ constitutions are principally the decrees of provincial synods, held under divers arch-bishops of canterbury, from stephen langton in the reign of henry iii to henry chichele in the reign of henry v; and adopted also by the province of york[x] in the reign of henry vi. at the dawn of the reformation, in the reign of king henry viii, it was enacted in parliament[y] that a review should be had of the canon law; and, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. and, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in england. [footnote x: burn's eccl. law, pref. viii.] [footnote y: statute hen. viii. c. ; revived and confirmed by eliz. c. .] as for the canons enacted by the clergy under james i, in the year , and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity[z]; whatever regard the clergy may think proper to pay them. [footnote z: stra. .] there are four species of courts in which the civil and canon laws are permitted under different restrictions to be used. . the courts of the arch-bishops and bishops and their derivative officers, usually called in our law courts christian, _curiae christianitatis_, or the ecclesiastical courts. . the military courts. . the courts of admiralty. . the courts of the two universities. in all, their reception in general, and the different degrees of that reception, are grounded intirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. the more minute consideration of these will fall properly under that part of these commentaries which treats of the jurisdiction of courts. it will suffice at present to remark a few particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them[a]. [footnote a: hale hist. c. .] . and, first, the courts of common law have the superintendency over these courts; to keep them within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal. . the common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts or the matters depending before them. and therefore if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at westminster will grant prohibitions to restrain and control them. . an appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of england, and not from any foreign potentate, or intrinsic authority of their own.--and, from these three strong marks and ensigns of superiority, it appears beyond a doubt that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and _leges sub graviori lege_; and that, thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of england, properly called, the king's ecclesiastical, the king's military, the king's maritime, or the king's academical, laws. let us next proceed to the _leges scriptae_, the written laws of the kingdom, which are statutes, acts, or edicts, made by the king's majesty by and with the advice and content of the lords spiritual and temporal and commons in parliament assembled[b]. the oldest of these now extant, and printed in our statute books, is the famous _magna carta_, as confirmed in parliament hen. iii: though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law. [footnote b: rep. .] the manner of making these statutes will be better considered hereafter, when we examine the constitution of parliaments. at present we will only take notice of the different kinds of statutes; and of some general rules with regard to their construction[c]. [footnote c: the method of citing these acts of parliament is various. many of our antient statutes are called after the name of the place, where the parliament was held that made them: as the statutes of merton and marlbridge, of westminster, glocester, and winchester. others are denominated entirely from their subject; as the statutes of wales and ireland, the _articuli cleri_, and the _praerogativa regis_. some are distinguished by their initial words, a method of citing very antient; being used by the jews in denominating the books of the pentateuch; by the christian church in distinguishing their hymns and divine offices; by the romanists in describing their papal bulles; and in short by the whole body of antient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also: in imitation of all which we still call some of our old statutes by their initial words, as the statute of _quia emptores_, and that of _circumspecte agatis_. but the most usual method of citing them, especially since the time of edward the second, is by naming the year of the king's reign in which the statute was made, together with the chapter, or particular act, according to it's numeral order; as, geo. ii. c. . for all the acts of one session of parliament taken together make properly but one statute; and therefore when two sessions have been held in one year, we usually mention stat. . or . thus the bill of rights is cited, as w. & m. st. . c. . signifying that it is the second chapter or act, of the second statute or the laws made in the second sessions of parliament, held in the first year of king william and queen mary.] first, as to their several kinds. statutes are either _general_ or _special_, _public_ or _private_. a general or public act is an universal rule, that regards the whole community; and of these the courts of law are bound to take notice judicially and _ex officio_; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. special or private acts are rather exceptions than rules, being those which only operate upon particular persons, and private concerns; such as the romans intitled _senatus-decreta_, in contradistinction to the _senatus-consulta_, which regarded the whole community[d]: and of these the judges are not bound to take notice, unless they be formally shewn and pleaded. thus, to shew the distinction, the statute eliz. c. . to prevent spiritual persons from making leases for longer terms than twenty one years, or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of chester to make a lease to a.b. for sixty years, is an exception to this rule; it concerns only the parties and the bishop's successors; and is therefore a private act. [footnote d: gravin. _orig._ . §. .] statutes also are either _declaratory_ of the common law, or _remedial_ of some defects therein. declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, _in perpetuum rei testimonium_, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. thus the statute of treasons, edw. iii. cap. . doth not make any new species of treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of offence, which before were treason at the common law. remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. and, this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, this has occasioned another subordinate division of remedial acts of parliament into _enlarging_ and _restraining_ statutes. to instance again in the case of treason. clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute eliz. c. . to make it high treason, which it was not at the common law: so that this was an _enlarging_ statute. at common law also spiritual corporations might lease out their estates for any term of years, till prevented by the statute eliz. beforementioned: this was therefore a _restraining_ statute. secondly, the rules to be observed with regard to the construction of statutes are principally these which follow. . there are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy: that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. and it is the business of the judges so to construe the act, as to suppress the mischief and advance the remedy[e]. let us instance again in the same restraining statute of the eliz. by the common law ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or twenty one years. now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's life; or, if made by a dean with concurrence of his chapter, they are not void during the life of the dean: for the act was made for the benefit and protection of the successor[f]. the mischief is therefore sufficiently suppressed by vacating them after the death of the grantor; but the leases, during their lives, being not within the mischief, are not within the remedy. [footnote e: rep. _b._ co. litt. _b._ .] [footnote f: co. litt. . rep. .] . a statute, which treats of things or persons of an inferior rank, cannot by any _general words_ be extended to those of a superior. so a statute, treating of "deans, prebendaries, parsons, vicars, _and others having spiritual promotion_," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order[g]. [footnote g: rep. .] . penal statutes must be construed strictly. thus a statute edw. vi. having enacted that those who are convicted of stealing _horses_ should not have the benefit of clergy, the judges conceived that this did not extend to him that should steal but _one horse_, and therefore procured a new act for that purpose in the following year[h]. and, to come nearer our own times, by the statute geo. ii. c. . stealing sheep, _or other cattle_, was made felony without benefit of clergy. but these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. and therefore, in the next sessions, it was found necessary to make another statute, geo. ii. c. . extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name. [footnote h: bac. elem. c. .] . statutes against frauds are to be liberally and beneficially expounded. this may seem a contradiction to the last rule; most statutes against frauds being in their consequences penal. but this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally. upon this footing the statute of eliz. c. . which avoids all gifts of goods, &c, made to defraud creditors _and others_, was held to extend by the general words to a gift made to defraud the queen of a forfeiture[i]. [footnote i: rep. .] . one part of a statute must be so construed by another, that the whole may if possible stand: _ut res magis valeat, quam pereat_. as if land be vested in the king and his heirs by act of parliament, saving the right of a; and a has at that time a lease of it for three years: here a shall hold it for his term of three years, and afterwards it shall go to the king. for this interpretation furnishes matter for every clause of the statute to work and operate upon. but . a saving, totally repugnant to the body of the act, is void. if therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of a in the king, saving the right of a: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king[k]. [footnote k: rep. .] . where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. and this upon the general principle laid down in the last section, that "_leges posteriores priores contrarias abrogant_." but this is to be understood, only when the latter statute is couched in negative terms, or by it's matter necessarily implies a negative. as if a former act says, that a juror upon such a trial shall have twenty pounds a year; and a new statute comes and says, he shall have twenty marks: here the latter statute, though it does not express, yet necessarily implies a negative, and virtually repeals the former. for if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end[l]. but if both acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. if by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assises; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either; unless the new statute subjoins express negative words, as, that the offence shall be indictable at the assises, _and not elsewhere_[m]. [footnote l: jenk. cent. . .] [footnote m: rep. .] . if a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. so when the statutes of and hen. viii, declaring the king to be the supreme head of the church, were repealed by a statute & ph. and mary, and this latter statute was afterwards repealed by an act of eliz. there needed not any express words of revival in queen elizabeth's statute, but these acts of king henry were impliedly and virtually revived[n]. [footnote n: inst. .] . acts of parliament derogatory from the power of subsequent parliaments bind not. so the statute hen. vii. c. . which directs, that no person for assisting a king _de facto_ shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason; but will not restrain or clog any parliamentary attainder[o]. because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowleges no superior upon earth, which the prior legislature must have been, if it's ordinances could bind the present parliament. and upon the same principle cicero, in his letters to atticus, treats with a proper contempt these restraining clauses which endeavour to tie up the hands of succeeding legislatures. "when you repeal the law itself, says he, you at the same time repeal the prohibitory clause, which guards against such repeal[p]." [footnote o: inst. .] [footnote p: _cum lex abrogatur, illud ipsum abrogatur, quo non eam abrogari oporteat._ _l._ . _ep._ .] . lastly, acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. i lay down the rule with these restrictions; though i know it is generally laid down more largely, that acts of parliament contrary to reason are void. but if the parliament will positively enact a thing to be done which is unreasonable, i know of no power that can control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. but where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only _quoad hoc_ disregard it. thus if an act of parliament gives a man power to try all causes, that arise within his manor of dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel[q]. but, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the legislature or no. [footnote q: rep. .] these are the several grounds of the laws of england: over and above which, equity is also frequently called in to assist, to moderate, and to explain it. what equity is, and how impossible in it's very essence to be reduced to stated rules, hath been shewn in the preceding section. i shall therefore only add, that there are courts of this kind established for the benefit of the subject, to correct and soften the rigor of the law, when through it's generality it bears too hard in particular cases; to detect and punish latent frauds, which the law is not minute enough to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though perhaps not strictly legal; to deliver from such dangers as are owing to misfortune or oversight; and, in short, to relieve in all such cases as are, _bona fide_, objects of relief. this is the business of our courts of equity, which however are only conversant in matters of property. for the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to construe the law otherwise than according to the letter. this caution, while it admirably protects the public liberty, can never bear hard upon individuals. a man cannot suffer _more_ punishment than the law assigns, but he may suffer _less_. the laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but in cases where the letter induces any apparent hardship, the crown has the power to pardon. section the fourth. of the countries subject to the laws of england. the kingdom of england, over which our municipal laws have jurisdiction, includes not, by the common law, either wales, scotland, or ireland, or any other part of the king's dominions, except the territory of england only. and yet the civil laws and local customs of this territory do now obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries; of which it will be proper first to take a review, before we consider the kingdom of england itself, the original and proper subject of these laws. wales had continued independent of england, unconquered and uncultivated, in the primitive pastoral state which caesar and tacitus ascribe to britain in general, for many centuries; even from the time of the hostile invasions of the saxons, when the ancient and christian inhabitants of the island retired to those natural intrenchments, for protection from their pagan visitants. but when these invaders themselves were converted to christianity, and settled into regular and potent governments, this retreat of the antient britons grew every day narrower; they were overrun by little and little, gradually driven from one fastness to another, and by repeated losses abridged of their wild independence. very early in our history we find their princes doing homage to the crown of england; till at length in the reign of edward the first, who may justly be stiled the conqueror of wales, the line of their antient princes was abolished, and the king of england's eldest son became, as a matter of course, their titular prince: the territory of wales being then entirely annexed to the dominion of the crown of england[a], or, as the statute of rutland[b] expresses it, "_terra walliae cum incolis suis, prius regi jure feodali subjecta_, (of which homage was the sign) _jam in proprietatis dominium totaliter et cum integritate conversa est, et coronae regni angliae tanquam pars corporis ejusdem annexa et unita_." by the statute also of wales[c] very material alterations were made in divers parts of their laws, so as to reduce them nearer to the english standard, especially in the forms of their judicial proceedings: but they still retained very much of their original polity, particularly their rule of inheritance, viz. that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. by other subsequent statutes their provincial immunities were still farther abridged: but the finishing stroke to their independency, was given by the statute hen. viii. c. . which at the same time gave the utmost advancement to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of england. thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly put upon the same footing, and made fellow-citizens with their conquerors. a generous method of triumph, which the republic of rome practised with great success; till she reduced all italy to her obedience, by admitting the vanquished states to partake of the roman privileges. [footnote a: vaugh. .] [footnote b: edw. i.] [footnote c: edw. i.] it is enacted by this statute hen. viii, . that the dominion of wales shall be for ever united to the kingdom of england. . that all welchmen born shall have the same liberties as other the king's subjects. . that lands in wales shall be inheritable according to the english tenures and rules of descent. . that the laws of england, and no other, shall be used in wales: besides many other regulations of the police of this principality. and the statute & hen. viii. c. . confirms the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same order in which it stands at this day; differing from the kingdom of england in only a few particulars, and those too of the nature of privileges, (such as having courts within itself, independent of the process of westminster hall) and some other immaterial peculiarities, hardly more than are to be found in many counties of england itself. the kingdom of scotland, notwithstanding the union of the crowns on the accession of their king james vi to that of england, continued an entirely separate and distinct kingdom for above a century, though an union had been long projected; which was judged to be the more easy to be done, as both kingdoms were antiently under the same government, and still retained a very great resemblance, though far from an identity, in their laws. by an act of parliament jac. i. c. . it is declared, that these two, mighty, famous, and antient kingdoms were formerly one. and sir edward coke observes[d], how marvellous a conformity there was, not only in the religion and language of the two nations, but also in their antient laws, the descent of the crown, their parliaments, their titles of nobility, their officers of state and of justice, their writs, their customs, and even the language of their laws. upon which account he supposes the common law of each to have been originally the same, especially as their most antient and authentic book, called _regiam majestatem_ and containing the rules of _their_ antient common law, is extremely similar that of glanvil, which contains the principles of _ours_, as it stood in the reign of henry ii. and the many diversities, subsisting between the two laws at present, may be well enough accounted for, from a diversity of practice in two large and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments, which have in many points altered and abrogated the old common law of both kingdoms. [footnote d: inst. .] however sir edward coke, and the politicians of that time, conceived great difficulties in carrying on the projected union: but these were at length overcome, and the great work was happily effected in , anne; when twenty five articles of union were agreed to by the parliaments of both nations: the purport of the most considerable being as follows: . that on the first of may , and for ever after, the kingdoms of england and scotland, shall be united into one kingdom, by the name of great britain. . the succession to the monarchy of great britain shall be the same as was before settled with regard to that of england. . the united kingdom shall be represented by one parliament. . there shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed. . when england raises , , _l._ by a land tax, scotland shall raise , _l._ , . the standards of the coin, of weights, and of measures, shall be reduced to those of england, throughout the united kingdoms. . the laws relating to trade, customs, and the excise, shall be the same in scotland as in england. but all the other laws of scotland shall remain in force; but alterable by the parliament of great britain. yet with this caution; that laws relating to public policy are alterable at the discretion of the parliament; laws relating to private rights are not to be altered but for the evident utility of the people of scotland. . sixteen peers are to be chosen to represent the peerage of scotland in parliament, and forty five members to sit in the house of commons. . the sixteen peers of scotland shall have all privileges of parliament: and all peers of scotland shall be peers of great britain, and rank next after those of the same degree at the time of the union, and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer. these are the principal of the twenty five articles of union, which are ratified and confirmed by statute ann. c. . in which statute there are also two acts of parliament recited; the one of scotland, whereby the church of scotland, and also the four universities of that kingdom, are established for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same; the other of england, ann. c. . whereby the acts of uniformity of eliz. and car. ii. (except as the same had been altered by parliament at that time) and all other acts then in force for the preservation of the church of england, are declared perpetual; and it is stipulated, that every subsequent king and queen shall take an oath inviolably to maintain the same within england, ireland, wales, and the town of berwick upon tweed. and it is enacted, that these two acts "shall for ever be observed as fundamental and essential conditions of the union." upon these articles, and act of union, it is to be observed, . that the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be "fundamental and essential conditions of the union." . that whatever else may be deemed "fundamental and essential conditions," the preservation of the two churches, of england and scotland, in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish our common prayer, are expressly declared so to be. . that therefore any alteration in the constitutions of either of those churches, or in the liturgy of the church of england, would be an infringement of these "fundamental and essential conditions," and greatly endanger the union. . that the municipal laws of scotland are ordained to be still observed in that part of the island, unless altered by parliament; and, as the parliament has not yet thought proper, except in a few instances, to alter them, they still (with regard to the particulars unaltered) continue in full force. wherefore the municipal or common laws of england are, generally speaking, of no force or validity in scotland; and, of consequence, in the ensuing commentaries, we shall have very little occasion to mention, any farther than sometimes by way of illustration, the municipal laws of that part of the united kingdoms. the town of berwick upon tweed, though subject to the crown of england ever since the conquest of it in the reign of edward iv, is not part of the kingdom of england, nor subject to the common law; though it is subject to all acts of parliament, being represented by burgesses therein. and therefore it was declared by statute geo. ii. c. . that where england only is mentioned in any act of parliament, the same notwithstanding shall be deemed to comprehend the dominion of wales, and town of berwick upon tweed. but the general law there used is the scots law, and the ordinary process of the courts of westminster-hall is there of no authority[e]. [footnote e: sid. . show. .] as to ireland, that is still a distinct kingdom; though a dependent, subordinate kingdom. it was only entitled the dominion or lordship of ireland[f], and the king's stile was no other than _dominus hiberniae_, lord of ireland, till the thirty third year of king henry the eighth; when he assumed the title of king, which is recognized by act of parliament hen. viii. c. . but, as scotland and england are now one and the same kingdom, and yet differ in their municipal laws; so england and ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. the inhabitants of ireland are, for the most part, descended from the english, who planted it as a kind of colony, after the conquest of it by king henry the second, at which time they carried over the english laws along with them. and as ireland, thus conquered, planted, and governed, still continues in a state of dependence, it must necessarily conform to, and be obliged by such laws as the superior state thinks proper to prescribe. [footnote f: _stat. hiberniae._ hen. iii.] at the time of this conquest the irish were governed by what they called the brehon law, so stiled from the irish name of judges, who were denominated brehons[g]. but king john in the twelfth year of his reign went into ireland, and carried over with him many able sages of the law; and there by his letters patent, in right of the dominion of conquest, is said to have ordained and established that ireland should be governed by the laws of england[h]: which letters patent sir edward coke[i] apprehends to have been there confirmed in parliament. but to this ordinance many of the irish were averse to conform, and still stuck to their brehon law: so that both henry the third[k] and edward the first[l] were obliged to renew the injunction; and at length in a parliament holden at kilkenny, edw. iii, under lionel duke of clarence, the then lieutenant of ireland, the brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. and yet, even in the reign of queen elizabeth, the wild natives still kept and preserved their brehon law; which is described[m] to have been "a rule of right unwritten, but delivered by tradition from one to another, in which oftentimes there appeared great shew of equity in determining the right between party and party, but in many things repugnant quite both to god's law and man's." the latter part of which character is alone allowed it under edward the first and his grandson. [footnote g: inst. . edm. spenser's state of ireland. p. . edit. hughes.] [footnote h: vaugh. . pryn. rec. .] [footnote i: inst. .] [footnote k: _a.r._ . rym. _foed._ .] [footnote l: _a.r._ .--_pro eo quod leges quibus utuntur hybernici deo detestabiles existunt, et omni juri dissonant, adeo quod leges censeri non debeant--nobis et consilio nostro satis videtur expediens eisdem utendas concedere leges anglicanas._ pryn. rec. .] [footnote m: edm. spenser. _ibid._] but as ireland was a distinct dominion, and had parliaments of it's own, it is to be observed, that though the immemorial customs, or common law, of england were made the rule of justice in ireland also, yet no acts of the english parliament, since the twelfth of king john, extended into that kingdom; unless it were specially named, or included under general words, such as, "within any of the king's dominions." and this is particularly expressed, and the reason given in the year book[n]: "ireland hath a parliament of it's own, and maketh and altereth laws; and our statutes do not bind them, because they do not send representatives to our parliament: but their persons are the king's subjects, like as the inhabitants of calais, gascoigny, and guienne, while they continued under the king's subjection." the method made use of in ireland, as stated by sir edward coke[o], of making statutes in their parliaments, according to poynings' law, of which hereafter, is this: . the lord lieutenant and council of ireland must certify to the king under the great seal of ireland the acts proposed to be passed. . the king and council of england are to consider, approve, alter, or reject the said acts; and certify them back again under the great seal of england. and then, . they are to be proposed, received, or rejected in the parliament of ireland. by this means nothing was left to the parliament in ireland, but a bare negative or power of rejecting, not of proposing, any law. but the usage now is, that bills are often framed in either house of parliament under the denomination of heads for a bill or bills; and in that shape they are offered to the consideration of the lord lieutenant and privy council, who then reject them at pleasure, without transmitting them to england. [footnote n: ric. iii. pl. .] [footnote o: inst. .] but the irish nation, being excluded from the benefit of the english statutes, were deprived of many good and profitable laws, made for the improvement of the common law: and, the measure of justice in both kingdoms becoming thereby no longer uniform, therefore in the hen. vii. a set of statutes passed in ireland, (sir edward poynings being then lord deputy, whence it is called poynings' law) by which it was, among other things, enacted, that all acts of parliament before made in england, should be of force within the realm of ireland[p]. but, by the same rule that no laws made in england, between king john's time and poynings' law, were then binding in ireland, it follows that no acts of the english parliament made since the hen. vii. do now bind the people of ireland, unless specially named or included under general words[q]. and on the other hand it is equally clear, that where ireland is particularly named, or is included under general words, they are bound by such acts of parliament. for this follows from the very nature and constitution of a dependent state: dependence being very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. the original and true ground of this superiority is the right of conquest: a right allowed by the law of nations, if not by that of nature; and founded upon a compact either expressly or tacitly made between the conqueror and the conquered, that if they will acknowlege the victor for their master, he will treat them for the future as subjects, and not as enemies[r]. [footnote p: inst. .] [footnote q: rep. .] [footnote r: puff. l. of n. . . .] but this state of dependence being almost forgotten, and ready to be disputed by the irish nation, it became necessary some years ago to declare how that matter really stood: and therefore by statute geo. i. c. . it is declared, that the kingdom of ireland ought to be subordinate to, and dependent upon, the imperial crown of great britain, as being inseparably united thereto; and that the king's majesty, with the consent of the lords and commons of great britain in parliament, hath power to make laws to bind the people of ireland. thus we see how extensively the laws of ireland communicate with those of england: and indeed such communication is highly necessary, as the ultimate resort from the courts of justice in ireland is, as in wales, to those in england; a writ of error (in the nature of an appeal) lying from the king's bench in ireland to the king's bench in england[s], as the appeal from all other courts in ireland lies immediately to the house of lords here: it being expressly declared, by the same statute geo. i. c. . that the peers of ireland have no jurisdiction to affirm or reverse any judgments or decrees whatsoever. the propriety, and even necessity, in all inferior dominions, of this constitution, "that, though justice be in general administred by courts of their own, yet that the appeal in the last resort ought to be to the courts of the superior state," is founded upon these two reasons. . because otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed within itself, without the assent of the superior. . because otherwise judgments might be given to the disadvantage or diminution of the superiority; or to make the dependence to be only of the person of the king, and not of the crown of england[t]. [footnote s: this was law in the time of hen. viii. as appears by the antient book, entituled, _diversity of courts, c. bank le roy_.] [footnote t: vaugh. .] with regard to the other adjacent islands which are subject to the crown of great britain, some of them (as the isle of wight, of portland, of thanet, &c.) are comprized within some neighbouring county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom of england. but there are others, which require a more particular consideration. and, first, the isle of man is a distinct territory from england and is not governed by our laws; neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there[u]. it was formerly a subordinate feudatory kingdom, subject to the kings of norway; then to king john and henry iii of england; afterwards to the kings of scotland; and then again to the crown of england: and at length we find king henry iv claiming the island by right of conquest, and disposing of it to the earl of northumberland; upon whose attainder it was granted (by the name of the lordship of man) to sir john de stanley by letters patent hen. iv[w]. in his lineal descendants it continued for eight generations, till the death of ferdinando earl of derby, _a.d._ ; when a controversy arose concerning the inheritance thereof, between his daughters and william his surviving brother: upon which, and a doubt that was started concerning the validity of the original patent[x], the island was seised into the queen's hands, and afterwards various grants were made of it by king james the first; all which being expired or surrendered, it was granted afresh in jac. i. to william earl of derby, and the heirs male of his body, with remainder to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint of the power of alienation by the said earl and his issue male. on the death of james earl of derby, _a.d._ , the male line of earl william failing, the duke of atholl succeeded to the island as heir general by a female branch. in the mean time, though the title of king had long been disused, the earls of derby, as lords of man, had maintained a sort of royal authority therein; by assenting or dissenting to laws, and exercising an appellate jurisdiction. yet, though no english writ, or process from the courts of westminster, was of any authority in man, an appeal lay from a decree of the lord of the island to the king of great britain in council[y]. but, the distinct jurisdiction of this little subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue, (it affording a convenient asylum for debtors, outlaws, and smugglers) authority was given to the treasury by statute geo. i. c. . to purchase the interest of the then proprietors for the use of the crown: which purchase hath at length been completed in this present year , and confirmed by statutes geo. iii. c. , & . whereby the whole island and all it's dependencies, so granted as aforesaid, (except the landed property of the atholl family, their manerial rights and emoluments, and the patronage of the bishoprick[z] and other ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the british excise and customs. [footnote u: inst. . and. .] [footnote w: selden. tit. hon. . .] [footnote x: camden. eliz. _a.d._ .] [footnote y: p.w. .] [footnote z: the bishoprick of man, or sodor, or sodor and man, was formerly within the province of canterbury, but annexed to that of york by statute hen. viii. c. .] the islands of jersey, guernsey, sark, alderney, and their appendages, were parcel of the duchy of normandy, and were united to the crown of england by the first princes of the norman line. they are governed by their own laws, which are for the most part the ducal customs of normandy, being collected in an antient book of very great authority, entituled, _le grand coustumier_. the king's writ, or process from the courts of westminster, is there of no force; but his commission is. they are not bound by common acts of our parliaments, unless particularly named[a]. all causes are originally determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them to the king in council, in the last resort. [footnote a: inst. .] besides these adjacent islands, our more distant plantations in america, and elsewhere, are also in some respects subject to the english laws. plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. and both these rights are founded upon the law of nature, or at least upon that of nations. but there is a difference between these two species of colonies, with respect to the laws by which they are bound. for it is held[b], that if an uninhabited country be discovered and planted by english subjects, all the english laws are immediately there in force. for as the law is the birthright of every subject, so wherever they go they carry their laws with them[c]. but in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of god, as in the case of an infidel country[d]. [footnote b: salk. . .] [footnote c: p. wms. .] [footnote d: rep. _b._ calvin's case. show. parl. c. .] our american plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice i shall not at present enquire) or by treaties. and therefore the common law of england, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. they are subject however to the control of the parliament; though (like ireland, man, and the rest) not bound by any acts of parliament, unless particularly named. the form of government in most of them is borrowed from that of england. they have a governor named by the king, (or in some proprietary colonies by the proprietor) who is his representative or deputy. they have courts of justice of their own, from whose decisions an appeal lies to the king in council here in england. their general assemblies which are their house of commons, together with their council of state being their upper house, with the concurrence of the king or his representative the governor, make laws suited to their own emergencies. but it is particularly declared by statute & w. iii. c. . that all laws, by-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect. these are the several parts of the dominions of the crown of great britain, in which the municipal laws of england are not of force or authority, merely _as_ the municipal laws of england. most of them have probably copied the spirit of their own law from this original; but then it receives it's obligation, and authoritative force, from being the law of the country. as to any foreign dominions which may belong to the person of the king by hereditary descent, by purchase, or other acquisition, as the territory of hanover, and his majesty's other property in germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely unconnected with the laws of england, and do not communicate with this nation in any respect whatsoever. the english legislature had wisely remarked the inconveniences that had formerly resulted from dominions on the continent of europe; from the norman territory which william the conqueror brought with him, and held in conjunction with the english throne; and from anjou, and it's appendages, which fell to henry the second by hereditary descent. they had seen the nation engaged for near four hundred years together in ruinous wars for defence of these foreign dominions; till, happily for this country, they were lost under the reign of henry the sixth. they observed that from that time the maritime interests of england were better understood and more closely pursued: that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began at this period to flourish all at once; and became much more considerable in europe than when her princes were possessed of a larger territory, and her counsels distracted by foreign interests. this experience and these considerations gave birth to a conditional clause in the act[e] of settlement, which vested the crown in his present majesty's illustrious house, "that in case the crown and imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom of england, this nation shall not be obliged to engage in any war for the defence of any dominions or territories which do not belong to the crown of england, without consent of parliament." [footnote e: stat. & w. iii. c. .] we come now to consider the kingdom of england in particular, the direct and immediate subject of those laws, concerning which we are to treat in the ensuing commentaries. and this comprehends not only wales, of which enough has been already said, but also part of the sea. the main or high seas are part of the realm of england, for thereon our courts of admiralty have jurisdiction, as will be shewn hereafter; but they are not subject to the common law[f]. this main sea begins at the low-water-mark. but between the high-water-mark, and the low-water-mark, where the sea ebbs and flows, the common law and the admiralty have _divisum imperium_, an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land, when it is an ebb[g]. [footnote f: co. litt. .] [footnote g: finch. l. .] the territory of england is liable to two divisions; the one ecclesiastical, the other civil. . the ecclesiastical division is, primarily, into two provinces, those of canterbury and york. a province is the circuit of an arch-bishop's jurisdiction. each province contains divers dioceses, or sees of suffragan bishops; whereof canterbury includes twenty one, and york three; besides the bishoprick of the isle of man, which was annexed to the province of york by king henry viii. every diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural deanries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter; and every deanry is divided into parishes[h]. [footnote h: co. litt. .] a parish is that circuit of ground in which the souls under the care of one parson or vicar do inhabit. these are computed to be near ten thousand in number. how antient the division of parishes is, may at present be difficult to ascertain; for it seems to be agreed on all hands, that in the early ages of christianity in this island, parishes were unknown, or at least signified the same that a diocese does now. there was then no appropriation of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some: or, if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy and for other pious purposes according to his own discretion[i]. [footnote i: seld. of tith. . . inst. . hob. .] mr camden[k] says england was divided into parishes by arch-bishop honorius about the year . sir henry hobart[l] lays it down that parishes were first erected by the council of lateran, which was held _a.d._ . each widely differing from the other, and both of them perhaps from the truth; which will probably be found in the medium between the two extremes. for mr selden has clearly shewn[m], that the clergy lived in common without any division of parishes, long after the time mentioned by camden. and it appears from the saxon laws, that parishes were in being long before the date of that council of lateran, to which they are ascribed by hobart. [footnote k: in his britannia.] [footnote l: hob. .] [footnote m: of tithes. c. .] we find the distinction of parishes, nay even of mother-churches, so early as in the laws of king edgar, about the year . before that time the consecration of tithes was in general _arbitrary_; that is, every man paid his own (as was before observed) to what church or parish he pleased. but this being liable to be attended with either fraud, or at least caprice, in the persons paying; and with either jealousies or mean compliances in such as were competitors for receiving them; it was now ordered by the law of king edgar[n], that "_dentur omnes decimae primariae ecclesiae ad quam parochia pertinet_." however, if any thane, or great lord, had a church within his own demesnes, distinct from the mother-church, in the nature of a private chapel; then, provided such church had a coemitery or consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance of the officiating minister: but, if it had no coemitery, the thane must himself have maintained his chaplain by some other means; for in such case _all_ his tithes were ordained to be paid to the _primariae ecclesiae_ or mother-church[o]. [footnote n: _c._ .] [footnote o: _ibid._ _c._ . see also the laws of king canute, c. . about the year .] this proves that the kingdom was then universally divided into parishes; which division happened probably not all at once, but by degrees. for it seems pretty clear and certain that the boundaries of parishes were originally ascertained by those of a manor or manors: since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. the lords, as christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine service regularly performed therein, obliged all their tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general: and this tract of land, the tithes whereof were so appropriated, formed a distinct parish. which will well enough account for the frequent intermixture of parishes one with another. for if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church with the tithes of those disjointed lands; especially if no church was then built in any lordship adjoining to those out-lying parcels. thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. but some lands, either because they were in the hands of irreligious and careless owners, or were situate in forests and desart places, or for other now unsearchable reasons, were never united to any parish, and therefore continue to this day extraparochial; and their tithes are now by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will distribute them, for the general good of the church[p]. and thus much for the ecclesiastical division of this kingdom. [footnote p: inst. . rep. . cro. eliz. .] . the civil division of the territory of england is into counties, of those counties into hundreds, of those hundreds into tithings or towns. which division, as it now stands, seems to owe it's original to king alfred; who, to prevent the rapines and disorders which formerly prevailed in the realm, instituted tithings; so called, from the saxon, because _ten_ freeholders with their families composed one. these all dwelt together, and were sureties or free pledges to the king for the good behaviour of each other; and, if any offence were committed in their district, they were bound to have the offender forthcoming[q]. and therefore antiently no man was suffered to abide in england above forty days, unless he were enrolled in some tithing or decennary[r]. one of the principal inhabitants of the tithing is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being supposed the discreetest man in the borough, town, or tithing[s]. [footnote q: _flet._ . . this the laws of king edward the confessor, c. . very justly intitle "_summa et maxima securitas, per quam omnes statu firmissimo sustinentur;--quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi, &c._"] [footnote r: mirr. c. . §. .] [footnote s: finch. l. .] tithings, towns, or vills, are of the same signification in law; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to sir edward coke[t]. the word _town_ or _vill_ is indeed, by the alteration of times and language, now become a generical term, comprehending under it the several species of cities, boroughs, and common towns. a city is a town incorporated, which is or hath been the see of a bishop; and though the bishoprick be dissolved, as at westminster, yet still it remaineth a city[u]. a borough is now understood to be a town, either corporate or not, that sendeth burgesses to parliament[w]. other towns there are, to the number sir edward coke says[x] of , which are neither cities nor boroughs; some of which have the privileges of markets, and others not; but both are equally towns in law. to several of these towns there are small appendages belonging, called hamlets; which are taken notice of in the statute of exeter[y], which makes frequent mention of entire vills, demi-vills, and hamlets. entire vills sir henry spelman[z] conjectures to have consisted of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. these little collections of houses are sometimes under the same administration as the town itself, sometimes governed by separate officers; in which last case it is, to some purposes in law, looked upon as a distinct township. these towns, as was before hinted, contained each originally but one parish, and one tithing; though many of them now, by the encrease of inhabitants, are divided into several parishes and tithings: and sometimes, where there is but one parish there are two or more vills or tithings. [footnote t: inst. _b._] [footnote u: co. litt. _b._] [footnote w: litt. §. .] [footnote x: inst. .] [footnote y: edw. i.] [footnote z: gloss. .] as ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a hundred, as consisting of ten times ten families. the hundred is governed by an high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial of causes, though now fallen into disuse. in some of the more northern counties these hundreds are called wapentakes[a]. [footnote a: seld. _in fortesc._ _c._ .] the subdivision of hundreds into tithings seems to be most peculiarly the invention of alfred: the institution of hundreds themselves he rather introduced than invented. for they seem to have obtained in denmark[b]: and we find that in france a regulation of this sort was made above two hundred years before; set on foot by clotharius and childebert, with a view of obliging each district to answer for the robberies committed in it's own division. these divisions were, in that country, as well military as civil; and each contained a hundred freemen; who were subject to an officer called the _centenarius_; a number of which _centenarii_ were themselves subject to a superior officer called the count or _comes_[c]. and indeed this institution of hundreds may be traced back as far as the antient germans, from whom were derived both the franks who became masters of gaul, and the saxons who settled in england. for we read in tacitus[d], that both the thing and the name were well known to that warlike people. "_centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et quod primo numerus fuit, jam nomen et honor est._" [footnote b: seld. tit. of hon. . . .] [footnote c: montesq. sp. l. . .] [footnote d: _de morib. german._ .] an indefinite number of these hundreds make up a county or shire. shire is a saxon word signifying a division; but a county, _comitatus_, is plainly derived from _comes_, the count of the franks; that is, the earl, or alderman (as the saxons called him) of the shire, to whom the government of it was intrusted. this he usually exercised by his deputy, still called in latin _vice-comes_, and in english the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time the civil administration of it is now totally devolved. in some counties there is an intermediate division, between the shire and the hundreds, as lathes in kent, and rapes in sussex, each of them containing about three or four hundreds apiece. these had formerly their lathe-reeves and rape-reeves, acting in subordination to the shire-reeve. where a county is divided into _three_ of these intermediate jurisdictions, they are called trithings[e], which were antiently governed by a trithing-reeve. these trithings still subsist in the large county of york, where by an easy corruption they are denominated ridings; the north, the east, and the west-riding. the number of counties in england and wales have been different at different times: at present there are forty in england, and twelve in wales. [footnote e: _ll. edw._ _c._ .] three of these counties, chester, durham, and lancaster, are called counties palatine. the two former are such by prescription, or immemorial custom; or, at least as old as the norman conquest[f]: the latter was created by king edward iii, in favour of henry plantagenet, first earl and then duke of lancaster, whose heiress john of gant the king's son had married; and afterwards confirmed in parliament, to honour john of gant himself; whom, on the death of his father-in-law, he had also created duke of lancaster[g]. counties palatine are so called _a palatio_; because the owners thereof, the earl of chester, the bishop of durham, and the duke of lancaster, had in those counties _jura regalia_, as fully as the king hath in his palace; _regalem potestatem in omnibus_, as bracton expresses it[h]. they might pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs and indictments ran in their names, as in other counties in the king's; and all offences were said to be done against their peace, and not, as in other places, _contra pacem domini regis_[i]. and indeed by the antient law, in all peculiar jurisdictions, offences were said to be done against his peace in whose court they were tried; in a court leet, _contra pacem domini_; in the court of a corporation, _contra pacem ballivorum_; in the sheriff's court or tourn, _contra pacem vice-comitis_[k]. these palatine privileges were in all probability originally granted to the counties of chester and durham, because they bordered upon enemies countries, wales and scotland; in order that the owners, being encouraged by so large an authority, might be the more watchful in it's defence; and that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemies incursions. and upon this account also there were formerly two other counties palatine, pembrokeshire and hexamshire, the latter now united with northumberland: but these were abolished by parliament, the former in hen. viii, the latter in eliz. and in hen. viii likewise, the powers beforementioned of owners of counties palatine were abridged; the reason for their continuance in a manner ceasing: though still all writs are witnessed in their names, and all forfeitures for treason by the common law accrue to them[l]. [footnote f: seld. tit. hon. . . .] [footnote g: plowd. .] [footnote h: _l._ . _c._ . §. .] [footnote i: . inst. .] [footnote k: seld. _in hengham magn._ _c._ .] [footnote l: inst. .] of these three, the county of durham is now the only one remaining in the hands of a subject. for the earldom of chester, as camden testifies, was united to the crown by henry iii, and has ever since given title to the king's eldest son. and the county palatine, or duchy, of lancaster was the property of henry of bolinbroke, the son of john of gant, at the time when he wrested the crown from king richard ii, and assumed the title of henry iv. but he was too prudent to suffer this to be united to the crown, lest, if he lost one, he should lose the other also. for, as plowden[m] and sir edward coke[n] observe, "he knew he had the duchy of lancaster by sure and indefeasible title, but that his title to the crown was not so assured: for that after the decease of richard ii the right of the crown was in the heir of lionel duke of clarence, _second_ son of edward iii; john of gant, father to this henry iv, being but the _fourth_ son." and therefore he procured an act of parliament, in the first year of his reign, to keep it distinct and separate from the crown, and so it descended to his son, and grandson, henry v, and henry vi. henry vi being attainted in edw. iv, this duchy was declared in parliament to have become forfeited to the crown[o], and at the same time an act was made to keep it still distinct and separate from other inheritances of the crown. and in hen. vii another act was made to vest the inheritance thereof in henry vii and his heirs; and in this state, say sir edward coke[p] and lambard[q], viz. in the natural heirs or posterity of henry vii, did the right of the duchy remain to their days; a separate and distinct inheritance from that of the crown of england[r]. [footnote m: .] [footnote n: inst. .] [footnote o: ventr. .] [footnote p: inst. .] [footnote q: archeion. .] [footnote r: if this notion of lambard and coke be well founded, it might have become a very curious question at the time of the revolution in , in whom the right of the duchy remained after king james's abdication. the attainder indeed of the pretended prince of wales (by statute w. iii. c. .) has now put the matter out of doubt. and yet, to give that attainder it's full force in this respect, the object of it must have been supposed legitimate, else he had no interest to forfeit.] the isle of ely is not a county palatine, though sometimes erroneously called so; but only a royal franchise; the bishop having, by grant of king henry the first, _jura regalia_ within the isle of ely, and thereby he exercises a jurisdiction over all causes, as well criminal, as civil[s]. [footnote s: inst. .] there are also counties _corporate_; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour the kings of england have granted to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. such are london, york, bristol, norwich, coventry, and many others. and thus much of the countries subject to the laws of england. commentaries on the laws of england. book the first. of the rights of persons. chapter the first. of the absolute rights of individuals. the objects of the laws of england are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion. now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or, as cicero[a], and after him our bracton[b], has expressed it, _sanctio justa, jubens honesta et prohibens contraria_; it follows, that the primary and principal objects of the law are rights, and wrongs. in the prosecution therefore of these commentaries, i shall follow this very simple and obvious division; and shall in the first place consider the _rights_ that are commanded, and secondly the _wrongs_ that are forbidden by the laws of england. [footnote a: _philipp._ .] [footnote b: _l._ . _c._ .] rights are however liable to another subdivision; being either, first, those which concern, and are annexed to the persons of men, and are then called _jura personarum_ or the _rights of persons_; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are stiled _jura rerum_ or the _rights of things_. wrongs also are divisible into, first, _private wrongs_, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, _public wrongs_, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors. the objects of the laws of england falling into this fourfold division, the present commentaries will therefore consist of the four following parts: . _the rights of persons_; with the means whereby such rights may be either acquired or lost. . _the rights of things_; with the means also of acquiring and losing them. . _private wrongs_, or civil injuries; with the means of redressing them by law. . _public wrongs_, or crimes and misdemesnors; with the means of prevention and punishment. we are now, first, to consider _the rights of persons_; with the means of acquiring and losing them. now the rights of persons that are commanded to be observed by the municipal law are of two sorts; first, such as are due _from_ every citizen, which are usually called civil _duties_; and, secondly, such as belong _to_ him, which is the more popular acceptation of _rights_ or _jura_. both may indeed be comprized in this latter division; for, as all social duties are of a relative nature, at the same time that they are due _from_ one man, or set of men, they must also be due _to_ another. but i apprehend it will be more clear and easy, to consider many of them as duties required from, rather than as rights belonging to, particular persons. thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other. allegiance is the right of the magistrate, and protection the right of the people. persons also are divided by the law into either natural persons, or artificial. natural persons are such as the god of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic. the rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. the first, that is, absolute rights, will be the subject of the present chapter. by the absolute _rights_ of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. but with regard to the absolute _duties_, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. for the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. but if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. here the circumstance of publication is what alters the nature of the case. _public_ sobriety is a relative duty, and therefore enjoined by our laws: _private_ sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. but, with respect to _rights_, the case is different. human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others. for the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. hence it follows, that the first and primary end of human laws is to maintain and regulate these _absolute_ rights of individuals. such rights as are social and _relative_ result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration. and therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. these will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. let us therefore proceed to examine how far all laws ought, and how far the laws of england actually do, take notice of these absolute rights, and provide for their lasting security. the absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. this natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of god to man at his creation, when he endued him with the faculty of freewill. but every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. and this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. for no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick[c]. hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty: whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state, of society, which alone can secure our independence. thus the statute of king edward iv[d], which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. but the statute of king charles ii[e], which prescribes a thing seemingly as indifferent; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. so that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as mr locke has well observed[f]) where there is no law, there is no freedom. but then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint. [footnote c: _facultas ejus, quod cuique facere libet, nisi quid jure prohibetur._ _inst._ . . .] [footnote d: edw. iv. c. .] [footnote e: car. ii. st. . c. .] [footnote f: on gov. p. . §. .] the idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or demerits of it's owner: the legislature, and of course the laws of england, being peculiarly adapted to the preservation of this inestimable blessing even in the meanest subject. very different from the modern constitutions of other states, on the continent of europe, and from the genius of the imperial law; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. and this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in england, falls under the protection of the laws, and with regard to all natural rights becomes _eo instanti_ a freeman[g]. [footnote g: salk. .] the absolute rights of every englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human. at some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all. but the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the ballance of our rights and liberties has settled to it's proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger. first, by the great charter of liberties, which was obtained, sword in hand, from king john; and afterwards, with some alterations, confirmed in parliament by king henry the third, his son. which charter contained very few new grants; but, as sir edward coke[h] observes, was for the most part declaratory of the principal grounds of the fundamental laws of england. afterwards by the statute called _confirmatio cartarum_[i], whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it. next by a multitude of subsequent corroborating statutes, (sir edward coke, i think, reckons thirty two[k],) from the first edward to henry the fourth. then, after a long interval, by _the petition of right_; which was a parliamentary declaration of the liberties of the people, assented to by king charles the first in the beginning of his reign. which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the _habeas corpus_ act, passed under charles the second. to these succeeded _the bill of rights_, or declaration delivered by the lords and commons to the prince and princess of orange february ; and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words; "and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties." and the act of parliament itself[l] recognizes "all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom." lastly, these liberties were again asserted at the commencement of the present century, in the _act of settlement_[m], whereby the crown is limited to his present majesty's illustrious house, and some new provisions were added at the same fortunate aera for better securing our religion, laws, and liberties; which the statute declares to be "the birthright of the people of england;" according to the antient doctrine of the common law[n]. [footnote h: inst. proem.] [footnote i: edw. i.] [footnote k: inst. proem.] [footnote l: w. and m. st. . c. .] [footnote m: & w. iii. c. .] [footnote n: plowd. .] thus much for the _declaration_ of our rights and liberties. the rights themselves thus defined by these several statutes, consist in a number of private immunities; which will appear, from what has been premised, to be indeed no other, than either that _residuum_ of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals. these therefore were formerly, either by inheritance or purchase, the rights of all mankind; but, in most other countries of the world being now more or less debased and destroyed, they at present may be said to remain, in a peculiar and emphatical manner, the rights of the people of england. and these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty; and the right of private property: because as there is no other known method of compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense. i. the right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. . life is the immediate gift of god, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. for if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter[o]. but at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor[p]. [footnote o: _si aliquis mulierem praegnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam; si puerperium jam formatum fuerit, et maxime si fuerit animatum, facit homicidium._ bracton. _l._ . _c._ .] [footnote p: inst. .] an infant _in ventre sa mere_, or in the mother's womb, is supposed in law to be born for many purposes. it is capable of having a legacy, or a surrender of a copyhold estate made to it. it may have a guardian assigned to it[q]; and it is enabled to have an estate limited to it's use, and to take afterwards by such limitation, as if it were then actually born[r]. and in this point the civil law agrees with ours[s]. [footnote q: stat. car. ii. c. .] [footnote r: stat. & w. iii. c. .] [footnote s: _qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur._ _ff._ . . .] . a man's limbs, (by which for the present we only understand those members which may be useful to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift of the wise creator; to enable man to protect himself from external injuries in a state of nature. to these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty. both the life and limbs of a man are of such high value, in the estimation of the law of england, that it pardons even homicide if committed _se defendendo_, or in order to preserve them. for whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance[t]. and the same is also a sufficient excuse for the commission of many misdemesnors, as will appear in the fourth book. the constraint a man is under in these circumstances is called in law _duress_, from the latin _durities_, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty, of which we shall presently speak; and duress _per minas_, where the hardship is only threatened and impending, which is that we are now discoursing of. duress _per minas_ is either for fear of loss of life, or else for fear of mayhem, or loss of limb. and this fear must be upon sufficient reason; "_non_," as bracton expresses it, "_suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum, aut corporis cruciatum_[u]." a fear of battery, or being beaten, though never so well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken away and destroyed; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages[w]: but no suitable atonement can be made for the loss of life, or limb. and the indulgence shewn to a man under this, the principal, sort of duress, the fear of losing his life or limbs, agrees also with that maxim of the civil law; _ignoscitur ei qui sanguinem suum qualiter qualiter redemptum voluit_[x]. [footnote t: inst. .] [footnote u: _l._ . _c._ .] [footnote w: inst. .] [footnote x: _ff._ . . .] the law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. for there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor, of which in their proper places. a humane provision; yet, though dictated by the principles of society, discountenanced by the roman laws. for the edicts of the emperor constantine, commanding the public to maintain the children of those who were unable to provide for them, in order to prevent the murder and exposure of infants, an institution founded on the same principle as our foundling hospitals, though comprized in the theodosian code[y], were rejected in justinian's collection. [footnote y: _l._ . _t._ .] these rights, of life and member, can only be determined by the death of the person; which is either a civil or natural death. the civil death commences if any man be banished the realm[z] by the process of the common law, or enters into religion; that is, goes into a monastery, and becomes there a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate. for, such banished man is entirely cut off from society; and such a monk, upon his profession, renounces solemnly all secular concerns: and besides, as the popish clergy claimed an exemption from the duties of civil life, and the commands of the temporal magistrate, the genius of the english law would not suffer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to it's regulations[a]. a monk is therefore accounted _civiliter mortuus_, and when he enters into religion may, like other dying men, make his testament and executors; or, if he makes none, the ordinary may grant administration to his next of kin, as if he were actually dead intestate. and such executors and administrators shall have the same power, and may bring the same actions for debts due _to_ the religious, and are liable to the same actions for those due _from_ him, as if he were naturally deceased[b]. nay, so far has this principle been carried, that when one was bound in a bond to an abbot and his successors, and afterwards made his executors and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own executors to recover the money due[c]. in short, a monk or religious is so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards becomes a monk, determines by such his entry into religion: for which reason leases, and other conveyances, for life, are usually made to have and to hold for the term of one's _natural_ life[d]. [footnote z: co. litt. .] [footnote a: this was also a rule in the feodal law, _l._ . _t._ . _desiit esse miles seculi, qui factus est miles christi; nec beneficium pertinet ad eum qui non debet gerere officium_.] [footnote b: litt. §. .] [footnote c: co. litt. _b._] [footnote d: rep. . co. litt. .] this natural life being, as was before observed, the immediate donation of the great creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority. yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments; of the nature, restrictions, expedience, and legality of which, we may hereafter more conveniently enquire in the concluding book of these commentaries. at present, i shall only observe, that whenever the _constitution_ of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such constitution is in the highest degree tyrannical: and that whenever any _laws_ direct such destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior degree; because here the subject is aware of the danger he is exposed to, and may by prudent caution provide against it. the statute law of england does therefore very seldom, and the common law does never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the express warrant of law. "_nullus liber homo_, says the great charter[e], _aliquo modo destruatur, nisi per legale judicium parium suorum aut per legem terrae._" which words, "_aliquo modo destruatur_," according to sir edward coke[f], include a prohibition not only of _killing_, and _maiming_, but also of _torturing_ (to which our laws are strangers) and of every oppression by colour of an illegal authority. and it is enacted by the statute edw. iii. c. . that no man shall be forejudged of life or limb, contrary to the great charter and the law of the land: and again, by statute ed. iii. c. . that no man shall be put to death, without being brought to answer by due process of law. [footnote e: c. .] [footnote f: inst. .] . besides those limbs and members that may be necessary to man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled by the same natural right to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member. . the preservation of a man's health from such practices as may prejudice or annoy it, and . the security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right. but these three last articles (being of much less importance than those which have gone before, and those which are yet to come) it will suffice to have barely mentioned among the rights of persons; referring the more minute discussion of their several branches, to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs. ii. next to personal security, the law of england regards, asserts, and preserves the personal liberty of individuals. this personal liberty consists in the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law. concerning which we may make the same observations as upon the preceding article; that it is a right strictly natural; that the laws of england have never abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. here again the language of the great charter[g] is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. and many subsequent old statutes[h] expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of the common law. by the petition of right, car. i, it is enacted, that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law. by car. i. c. . if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of _habeas corpus_, to bring his body before the court of king's bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain. and by car. ii. c. . commonly called _the habeas corpus act_, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of england can be long detained in prison, except in those cases in which the law requires and justifies such detainer. and, lest this act should be evaded by demanding unreasonable bail, or sureties for the prisoner's appearance, it is declared by w. & m. st. . c. . that excessive bail ought not to be required. [footnote g: c. .] [footnote h: edw. iii. c. . edw. iii. st. . c. . and edw. iii. c. .] of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in france it is daily practiced by the crown) there would soon be an end of all other rights and immunities. some have thought, that unjust attacks, even upon life, or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. to bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. and yet sometimes, when the state is in real danger, even this may be a necessary measure. but the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient. for the parliament only, or legislative power, whenever it sees proper, can authorize the crown, by suspending the _habeas corpus_ act for a short and limited time, to imprison suspected persons without giving any reason for so doing. as the senate of rome was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the republic in any imminent danger. the decree of the senate, which usually preceded the nomination of this magistrate, "_dent operam consules, nequid respublica detrimenti capiat_," was called the _senatus consultum ultimae necessitatis_. in like manner this experiment ought only to be tried in cases of extreme emergency; and in these the nation parts with it's liberty for a while, in order to preserve it for ever. the confinement of the person, in any wise, is an imprisonment. so that the keeping a man against his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street, is an imprisonment[i]. and the law so much discourages unlawful confinement, that if a man is under _duress of imprisonment_, which we before explained to mean a compulsion by an illegal restraint of liberty, until he seals a bond or the like; he may alledge this duress, and avoid the extorted bond. but if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it[k]. to make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a _habeas corpus_. if there be no cause expressed, the goaler is not bound to detain the prisoner[l]. for the law judges in this respect, saith sir edward coke, like festus the roman governor; that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him. [footnote i: inst. .] [footnote k: inst. .] [footnote l: inst. , .] a natural and regular consequence of this personal liberty, is, that every englishman may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law. the king indeed, by his royal prerogative, may issue out his writ _ne exeat regnum_, and prohibit any of his subjects from going into foreign parts without licence[m]. this may be necessary for the public service, and safeguard of the commonwealth. but no power on earth, except the authority of parliament, can send any subject of england _out of_ the land against his will; no not even a criminal. for exile, or transportation, is a punishment unknown to the common law; and, wherever it is now inflicted, it is either by the choice of the criminal himself, to escape a capital punishment, or else by the express direction of some modern act of parliament. to this purpose the great charter[n] declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land. and by the _habeas corpus_ act, car. ii. c. . (that second _magna carta_, and stable bulwark of our liberties) it is enacted, that no subject of this realm, who is an inhabitant of england, wales, or berwick, shall be sent prisoner into scotland, ireland, jersey, guernsey, or places beyond the seas; (where they cannot have the benefit and protection of the common law) but that all such imprisonments shall be illegal; that the person, who shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a praemunire, and be incapable of receiving the king's pardon: and the party suffering shall also have his private action against the person committing, and all his aiders, advisers and abettors, and shall recover treble costs; besides his damages, which no jury shall assess at less than five hundred pounds. [footnote m: f.n.b. .] [footnote n: cap. .] the law is in this respect so benignly and liberally construed for the benefit of the subject, that, though _within_ the realm the king may command the attendance and service of all his liege-men, yet he cannot send any man _out of_ the realm, even upon the public service: he cannot even constitute a man lord deputy or lieutenant of ireland against his will, nor make him a foreign embassador[o]. for this might in reality be no more than an honorable exile. [footnote o: inst. .] iii. the third absolute right, inherent in every englishman, is that of property; which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. the original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. the laws of england are therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right. upon this principle the great charter[p] has declared that no freeman shall be disseised, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. and by a variety of antient statutes[q] it is enacted, that no man's lands or goods shall be seised into the king's hands, against the great charter, and the law of the land; and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary, it shall be redressed, and holden for none. [footnote p: c. .] [footnote q: edw. iii. c. . edw. iii. st. . c. . edw. iii. c. .] so great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. if a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. in vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law. in this, and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. but how does it interpose and compel? not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. the public is now considered as an individual, treating with an individual for an exchange. all that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform. nor is this the only instance in which the law of the land has postponed even public necessity to the sacred and inviolable rights of private property. for no subject of england can be constrained to pay any aids or taxes, even for the defence of the realm or the support of government, but such as are imposed by his own consent, or that of his representatives in parliament. by the statute edw. i. c. and . it is provided, that the king shall not take any aids or tasks, but by the common assent of the realm. and what that common assent is, is more fully explained by edw. i. st. . cap. . which enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land[r]: and again by edw. iii. st. . c. . the prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to make any aid, if it be not by the common assent of the great men and commons in parliament. and as this fundamental law had been shamefully evaded under many succeeding princes, by compulsive loans, and benevolences extorted without a real and voluntary consent, it was made an article in the petition of right car. i, that no man shall be compelled to yield any gift, loan, or benevolence, tax, or such like charge, without common consent by act of parliament. and, lastly, by the statute w. & m. st. . c. . it is declared, that levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament; or for longer time, or in other manner, than the same is or shall be granted, is illegal. [footnote r: see the historical introduction to the great charter, &c, _sub anno_ ; wherein it is shewn that this statute _de talliagio non concedendo_, supposed to have been made in edw. i, is in reality nothing more than a sort of translation into latin of the _confirmatio cartarum_, edw. i, which was originally published in the norman language.] in the three preceding articles we have taken a short view of the principal absolute rights which appertain to every englishman. but in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. it has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property. these are, . the constitution, powers, and privileges of parliament, of which i shall treat at large in the ensuing chapter. . the limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible he should exceed them without the consent of the people. of this also i shall treat in it's proper place. the former of these keeps the legislative power in due health and vigour, so as to make it improbable that laws should be enacted destructive of general liberty: the latter is a guard upon the executive power, by restraining it from acting either beyond or in contradiction to the laws, that are framed and established by the other. . a third subordinate right of every englishman is that of applying to the courts of justice for redress of injuries. since the law is in england the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administred therein. the emphatical words of _magna carta_[s], spoken in the person of the king, who in judgment of law (says sir edward coke[t]) is ever present and repeating them in all his courts, are these; "_nulli vendemus, nulli negabimus, aut differemus rectum vel justitiam_: and therefore every subject," continues the same learned author, "for injury done to him _in bonis, in terris, vel persona_, by any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by the course of the law, and have justice and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay." it were endless to enumerate all the _affirmative_ acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. i shall however just mention a few _negative_ statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. it is ordained by _magna carta_[u], that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land. by edw. iii. c. . and ric. ii. c. . it is enacted, that no commands or letters shall be sent under the great seal, or the little seal, the signet, or privy seal, in disturbance of the law; or to disturb or delay common right: and, though such commandments should come, the judges shall not cease to do right. and by w. & m. st. . c. . it is declared, that the pretended power of suspending, or dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is illegal. [footnote s: c. .] [footnote t: inst. .] [footnote u: c. .] not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself. the king, it is true, may erect new courts of justice; but then they must proceed according to the old established forms of the common law. for which reason it is declared in the statute car. i. c. . upon the dissolution of the court of starchamber, that neither his majesty, nor his privy council, have any jurisdiction, power, or authority by english bill, petition, articles, libel (which were the course of proceeding in the starchamber, borrowed from the civil law) or by any other arbitrary way whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts of justice, and by _course of law_. . if there should happen any uncommon injury, or infringement of the rights beforementioned, which the ordinary course of law is too defective to reach, there still remains a fourth subordinate right appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances. in russia we are told[w] that the czar peter established a law, that no subject might petition the throne, till he had first petitioned two different ministers of state. in case he obtained justice from neither, he might then present a third petition to the prince; but upon pain of death, if found to be in the wrong. the consequence of which was, that no one dared to offer such third petition; and grievances seldom falling under the notice of the sovereign, he had little opportunity to redress them. the restrictions, for some there are, which are laid upon petitioning in england, are of a nature extremely different; and while they promote the spirit of peace, they are no check upon that of liberty. care only must be taken, lest, under the pretence of petitioning, the subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in : and, to prevent this, it is provided by the statute car. ii. st. . c. . that no petition to the king, or either house of parliament, for any alterations in church or state, shall be signed by above twenty persons, unless the matter thereof be approved by three justices of the peace or the major part of the grand jury, in the country; and in london by the lord mayor, aldermen, and common council; nor shall any petition be presented by more than two persons at a time. but under these regulations, it is declared by the statute w. & m. st. . c. . that the subject hath a right to petition; and that all commitments and prosecutions for such petitioning are illegal. [footnote w: montesq. sp. l. . .] . the fifth and last auxiliary right of the subject, that i shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. which is also declared by the same statute w. & m. st. . c. . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. in these several articles consist the rights, or, as they are frequently termed, the liberties of englishmen: liberties more generally talked of, than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon it is founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. and we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. so long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. to preserve these from violation, it is necessary that the constitution of parliaments be supported in it's full vigor; and limits certainly known, be set to the royal prerogative. and, lastly, to vindicate these rights, when actually violated or attacked, the subjects of england are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self-preservation and defence. and all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. for all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens. so that this review of our situation may fully justify the observation of a learned french author, who indeed generally both thought and wrote in the spirit of genuine freedom[x]; and who hath not scrupled to profess, even in the very bosom of his native country, that the english is the only nation in the world, where political or civil liberty is the direct end of it's constitution. recommending therefore to the student in our laws a farther and more accurate search into this extensive and important title, i shall close my remarks upon it with the expiring wish of the famous father paul to his country, "esto perpetua!" [footnote x: montesq. sp. l. . .] chapter the second. of the parliament. we are next to treat of the rights and duties of persons, as they are members of society, and stand in various relations to each other. these relations are either public or private: and we will first consider those that are public. the most universal public relation, by which men are connected together, is that of government; namely, as governors and governed, or, in other words, as magistrates and people. of magistrates also some are _supreme_, in whom the sovereign power of the state resides; others are _subordinate_, deriving all their authority from the supreme magistrate, accountable to him for their conduct, and acting in an inferior secondary sphere. in all tyrannical governments the supreme magistracy, or the right both of _making_ and of _enforcing_ the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. the magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. but, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it's own independence, and therewith of the liberty of the subject. with us therefore in england this supreme power is divided into two branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the other executive, consisting of the king alone. it will be the business of this chapter to consider the british parliament; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution. the original or first institution of parliaments is one of those matters that lie so far hidden in the dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. the word, _parliament_, itself (or _colloquium_, as some of our historians translate it) is comparatively of modern date, derived from the french, and signifying the place where they met and conferred together. it was first applied to general assemblies of the states under louis vii in france, about the middle of the twelfth century[a]. but it is certain that, long before the introduction of the norman language into england, all matters of importance were debated and settled in the great councils of the realm. a practice, which seems to have been universal among the northern nations, particularly the germans[b]; and carried by them into all the countries of europe, which they overran at the dissolution of the roman empire. relics of which constitution, under various modifications and changes, are still to be met with in the diets of poland, germany, and sweden, and the assembly of the estates in france; for what is there now called the parliament is only the supreme court of justice, composed of judges and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the realm. [footnote a: mod. un. hist. xxiii. .] [footnote b: _de minoribus rebus principes consultant, de majoribus omnes._ tac. _de mor. germ._ _c._ .] with us in england this general council hath been held immemorially, under the several names of _michel-synoth_, or great council, _michel-gemote_ or great meeting, and more frequently _wittena-gemote_ or the meeting of wise men. it was also stiled in latin, _commune concilium regni_, _magnum concilium regis_, _curia magna_, _conventus magnatum vel procerum_, _assisa generalis_, and sometimes _communitas regni angliae_[c]. we have instances of it's meeting to order the affairs of the kingdom, to make new laws, and to amend the old, or, as fleta[d] expresses it, "_novis injuriis emersis nova constituere remedia_," so early as the reign of ina king of the west saxons, offa king of the mercians, and ethelbert king of kent, in the several realms of the heptarchy. and, after their union, the mirrour[e] informs us, that king alfred ordained for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat of the government of god's people; how they should keep themselves from sin, should live in quiet, and should receive right. our succeeding saxon and danish monarchs held frequent councils of this sort, as appears from their respective codes of laws; the titles whereof usually speak them to be enacted, either by the king with the advice of his wittena-gemote, or wise men, as, "_haec sunt instituta, quae edgarus rex consilio sapientum suorum instituit_;" or to be enacted by those sages with the advice of the king, as, "_haec sunt judicia, quae sapientes consilio regis ethelstani instituerunt_;" or lastly, to be enacted by them both together, as; "_hae sunt institutiones, quas rex edmundus et episcopi sui cum sapientibus suis instituerunt_." [footnote c: glanvil. _l._ _c._ . _l._ . _c._ .--pref. rep.-- inst. .] [footnote d: _l._ . _c._ .] [footnote e: c. . §. .] there is also no doubt but these great councils were held regularly under the first princes of the norman line. glanvil, who wrote in the reign of henry the second, speaking of the particular amount of an amercement in the sheriff's court, says, it had never yet been ascertained by the general assise, or assembly, but was left to the custom of particular counties[f]. here the general assise is spoken of as a meeting well known, and it's statutes or decisions are put in a manifest contradistinction to customs, or the common law. and in edward the third's time an act of parliament, made in the reign of william the conqueror, was pleaded in the case of the abbey of st edmund's-bury, and judicially allowed by the court[g]. [footnote f: _quanta esse debeat per nullam assisam generalem determinatum est, sed pro consuetudine singulorum comitatuum debetur._ _l._ . _c._ .] [footnote g: year book, edw. iii. .] hence it indisputably appears, that parliaments, or general councils, are coeval with the kingdom itself. how those parliaments were constituted and composed, is another question, which has been matter of great dispute among our learned antiquarians; and, particularly, whether the commons were summoned at all; or, if summoned, at what period they began to form a distinct assembly. but it is not my intention here to enter into controversies of this sort. i hold it sufficient that it is generally agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago as the seventeenth year of king john, _a.d._ , in the great charter granted by that prince; wherein he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with forty days notice, to assess aids and scutages when necessary. and this constitution has subsisted in fact at least from the year , hen. iii: there being still extant writs of that date, to summon knights, citizens, and burgesses to parliament. i proceed therefore to enquire wherein consists this constitution of parliament, as it now stands, and has stood for the space of five hundred years. and in the prosecution of this enquiry, i shall consider, first, the manner and time of it's assembling: secondly, it's constituent parts: thirdly, the laws and customs relating to parliament, considered as one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and lastly, the manner of the parliament's adjournment, prorogation, and dissolution. i. as to the manner and time of assembling. the parliament is regularly to be summoned by the king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before it begins to sit. it is a branch of the royal prerogative, that no parliament can be convened by it's own authority, or by the authority of any, except the king alone. and this prerogative is founded upon very good reason. for, supposing it had a right to meet spontaneously, without being called together, it is impossible to conceive that all the members, and each of the houses, would agree unanimously upon the proper time and place of meeting: and if half of the members met, and half absented themselves, who shall determine which is really the legislative body, the part assembled, or that which stays away? it is therefore necessary that the parliament should be called together at a determinate time and place; and highly becoming it's dignity and independence, that it should be called together by none but one of it's own constituent parts; and, of the three constituent parts, this office can only appertain to the king; as he is a single person, whose will may be uniform and steady; the first person in the nation, being superior to both houses in dignity; and the only branch of the legislature that has a separate existence, and is capable of performing any act at a time when no parliament is in being[h]. nor is it an exception to this rule that, by some modern statutes, on the demise of a king or queen, if there be then no parliament in being, the last parliament revives, and is to sit again for six months, unless dissolved by the successor: for this revived parliament must have been originally summoned by the crown. [footnote h: by motives somewhat similar to these the republic of venice was actuated, when towards the end of the seventh century it abolished the tribunes of the people, who were annually chosen by the several districts of the venetian territory, and constituted a doge in their stead; in whom the executive power of the state at present resides. for which their historians have assigned these, as the principal reasons. . the propriety of having the executive power a part of the legislative, or senate; to which the former annual magistrates were not admitted. . the necessity of having a single person to convoke the great council when separated. mod. un. hist. xxvii. .] it is true, that by a statute, car. i. c. . it was enacted, that if the king neglected to call a parliament for three years, the peers might assemble and issue out writs for the choosing one; and, in case of neglect of the peers, the constituents might meet and elect one themselves. but this, if ever put in practice, would have been liable to all the inconveniences i have just now stated; and the act itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed by statute car. ii. c. . from thence therefore no precedent can be drawn. it is also true, that the convention-parliament, which restored king charles the second, met above a month before his return; the lords by their own authority, and the commons in pursuance of writs issued in the name of the keepers of the liberty of england by authority of parliament: and that the said parliament sat till the twenty ninth of december, full seven months after the restoration; and enacted many laws, several of which are still in force. but this was for the necessity of the thing, which supersedes all law; for if they had not so met, it was morally impossible that the kingdom should have been settled in peace. and the first thing done after the king's return, was to pass an act declaring this to be a good parliament, notwithstanding the defect of the king's writs[i]. so that, as the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone had a right to object, consented to wave the objection, this cannot be drawn into an example in prejudice of the rights of the crown. besides we should also remember, that it was at that time a great doubt among the lawyers[k], whether even this healing act made it a good parliament; and held by very many in the negative: though it seems to have been too nice a scruple. [footnote i: stat. car. ii. c. .] [footnote k: sid. .] it is likewise true, that at the time of the revolution, _a.d._ , the lords and commons by their own authority, and upon the summons of the prince of orange, (afterwards king william) met in a convention and therein disposed of the crown and kingdom. but it must be remembered, that this assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension that king james the second had abdicated the government, and that the throne was thereby vacant: which apprehension of theirs was confirmed by their concurrent resolution, when they actually came together. and in such a case as the palpable vacancy of a throne, it follows _ex necessitate rei_, that the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. for, let us put another possible case, and suppose, for the sake of argument, that the whole royal line should at any time fail, and become extinct, which would indisputably vacate the throne: in this situation it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would have a right to meet and settle the government; otherwise there must be no government at all. and upon this and no other principle did the convention in assemble. the vacancy of the throne was precedent to their meeting without any royal summons, not a consequence of it. they did not assemble without writ, and then make the throne vacant; but the throne being previously vacant by the king's abdication, they assembled without writ, as they must do if they assembled at all. had the throne been full, their meeting would not have been regular; but, as it was really empty, such meeting became absolutely necessary. and accordingly it is declared by statute w. & m. st. . c. . that this convention was really the two houses of parliament, notwithstanding the want of writs or other defects of form. so that, notwithstanding these two capital exceptions, which were justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in the government) the rule laid down is in general certain, that the king, only, can convoke a parliament. and this by the antient statutes of the realm[l], he is bound to do every year, or oftener, if need be. not that he is, or ever was, obliged by these statutes to call a _new_ parliament every year; but only to permit a parliament to sit annually for the redress of grievances, and dispatch of business, _if need be_. these last words are so loose and vague, that such of our monarchs as were enclined to govern without parliaments, neglected the convoking them, sometimes for a very considerable period, under pretence that there was no need of them. but, to remedy this, by the statute car. ii. c. . it is enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the most. and by the statute w. & m. st. . c. . it is declared to be one of the rights of the people, that for redress of all grievances, and for the amending, strengthening, and preserving the laws, parliaments ought to be held _frequently_. and this indefinite _frequency_ is again reduced to a certainty by statute w. & m. c. . which enacts, as the statute of charles the second had done before, that a new parliament shall be called within three years[m] after the determination of the former. [footnote l: edw. iii. c. . and edw. iii. c. .] [footnote m: this is the same period, that is allowed in sweden for intermitting their general diets, or parliamentary assemblies. mod. un. hist. xxxiii. .] ii. the constituent parts of a parliament are the next objects of our enquiry. and these are, the king's majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords spiritual, the lords temporal, (who sit, together with, the king, in one house) and the commons, who sit by themselves in another[n]. and the king and these three estates, together, form the great corporation or body politic of the kingdom, of which the king is said to be _caput, principium, et finis_. for upon their coming together the king meets them, either in person or by representation; without which there can be no beginning of a parliament[o]; and he also has alone the power of dissolving them. [footnote n: inst. .] [footnote o: inst. .] it is highly necessary for preserving the ballance of the constitution, that the executive power should be a branch, though not the whole, of the legislature. the total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide. the legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power. thus the long parliament of charles the first, while it acted in a constitutional manner, with the royal concurrence, redressed many heavy grievances and established many salutary laws. but when the two houses assumed the power of legislation, in exclusion of the royal authority, they soon after assumed likewise the reins of administration; and, in consequence of these united powers, overturned both church and state, and established a worse oppression than any they pretended to remedy. to hinder therefore any such encroachments, the king is himself a part of the parliament: and, as this is the reason of his being so, very properly therefore the share of legislation, which the constitution has placed in the crown, consists in the power of _rejecting_, rathar [transcriber's note: rather] than _resolving_; this being sufficient to answer the end proposed. for we may apply to the royal negative, in this instance, what cicero observes of the negative of the roman tribunes, that the crown has not any power of _doing_ wrong, but merely of _preventing_ wrong from being done[p]. the crown cannot begin of itself any alterations in the present established law; but it may approve or disapprove of the alterations suggested and consented to by the two houses. the legislative therefore cannot abridge the executive power of any rights which it now has by law, without it's own consent; since the law must perpetually stand as it now does, unless all the powers will agree to alter it. and herein indeed consists the true excellence of the english government, that all the parts of it form a mutual check upon each other. in the legislature, the people are a check upon the nobility, and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved: while the king is a check upon both, which preserves the executive power from encroachments. and this very executive power is again checked, and kept within due bounds by the two houses, through the privilege they have of enquiring into, impeaching, and punishing the conduct (not indeed of the king, which would destroy his constitutional independence; but, which is more beneficial to the public) of his evil and pernicious counsellors. thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative in another still different from them both, they mutually keep each other from exceeding their proper limits; while the whole is prevented from separation, and artificially connected together by the mixed nature of the crown, which is a part of the legislative, and the sole executive magistrate. like three distinct powers in mechanics, they jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. [footnote p: _sulla--tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit._ _de ll._ . .] let us now consider these constituent parts of the sovereign power, or parliament, each in a separate view. the king's majesty will be the subject of the next, and many subsequent chapters, to which we must at present refer. the next in order are the spiritual lords. these consist of two arch-bishops, and twenty four bishops; and, at the dissolution of monasteries by henry viii, consisted likewise of twenty six mitred abbots, and two priors[q]: a very considerable body, and in those times equal in number to the temporal nobility[r]. all these hold, or are supposed to hold, certain antient baronies under the king: for william the conqueror thought proper to change the spiritual tenure, of frankalmoign or free alms, under which the bishops held their lands during the saxon government, into the feodal or norman tenure by barony; which subjected their estates to all civil charges and assessments, from which they were before exempt[s]: and, in right of succession to those baronies, the bishops obtained their seat in the house of lords[t]. but though these lords spiritual are in the eye of the law a distinct estate from the lords temporal, and are so distinguished in all our acts of parliament, yet in practice they are usually blended together under the one name of _the lords_; they intermix in their votes; and the majority of such intermixture binds both estates. for if a bill should pass their house, there is no doubt of it's being effectual, though every lord spiritual should vote against it; of which selden[u], and sir edward coke[w], give many instances: as, on the other hand, i presume it would be equally good, if the lords temporal present were inferior to the bishops in number, and every one of those temporal lords gave his vote to reject the bill; though this sir edward coke seems to doubt of[x]. [footnote q: seld. tit. hon. . . .] [footnote r: co. litt. .] [footnote s: gilb. hist. exch. . spelm. w.i. .] [footnote t: glanv. . . co. litt. . seld. tit. hon. . . .] [footnote u: baronage. p. . c. .] [footnote w: inst. , , .] [footnote x: inst. .] the lords temporal consist of all the peers of the realm (the bishops not being in strictness held to be such, but merely lords of parliament[y]) by whatever title of nobility distinguished; dukes, marquisses, earls, viscounts, or barons; of which dignities we shall speak more hereafter. some of these sit by descent, as do all antient peers; some by creation, as do all new-made ones; others, since the union with scotland, by election, which is the case of the sixteen peers, who represent the body of the scots nobility. their number is indefinite, and may be encreased at will by the power of the crown: and once, in the reign of queen anne, there was an instance of creating no less than twelve together; in contemplation of which, in the reign of king george the first, a bill passed the house of lords, and was countenanced by the then ministry, for limiting the number of the peerage. this was thought by some to promise a great acquisition to the constitution, by restraining the prerogative from gaining the ascendant in that august assembly, by pouring in at pleasure an unlimited number of new created lords. but the bill was ill-relished and miscarried in the house of commons, whose leading members were then desirous to keep the avenues to the other house as open and easy as possible. [footnote y: staunford. p.c. .] the distinction of rank and honours is necessary in every well-governed state; in order to reward such as are eminent for their services to the public, in a manner the most desirable to individuals, and yet without burthen to the community; exciting thereby an ambitious yet laudable ardor, and generous emulation in others. and emulation, or virtuous ambition, is a spring of action which, however dangerous or invidious in a mere republic or under a despotic sway, will certainly be attended with good effects under a free monarchy; where, without destroying it's existence, it's excesses may be continually restrained by that superior power, from which all honour is derived. such a spirit, when nationally diffused, gives life and vigour to the community; it sets all the wheels of government in motion, which under a wise regulator, may be directed to any beneficial purpose; and thereby every individual may be made subservient to the public good, while he principally means to promote his own particular views. a body of nobility is also more peculiarly necessary in our mixed and compounded constitution, in order to support the rights of both the crown and the people, by forming a barrier to withstand the encroachments of both. it creates and preserves that gradual scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad foundation, and diminishing to a point as it rises. it is this ascending and contracting proportion that adds stability to any government; for when the departure is sudden from one extreme to another, we may pronounce that state to be precarious. the nobility therefore are the pillars, which are reared from among the people, more immediately to support the throne; and if that falls, they must also be buried under it's ruins. accordingly, when in the last century the commons had determined to extirpate monarchy, they also voted the house of lords to be useless and dangerous. and since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. if they were confounded with the mass of the people, and like them had only a vote in electing representatives, their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions. it is therefore highly necessary that the body of nobles should have a distinct assembly, distinct deliberations, and distinct powers from the commons. the commons consist of all such men of any property in the kingdom as have not seats in the house of lords; every one of which has a voice in parliament, either personally, or by his representatives. in a free state, every man, who is supposed a free agent, ought to be, in some measure, his own governor; and therefore a branch at least of the legislative power should reside in the whole body of the people. and this power, when the territories of the state are small and it's citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of greece, and the first rudiments of the roman state. but this will be highly inconvenient, when the public territory is extended to any considerable degree, and the number of citizens is encreased. thus when, after the social war, all the burghers of italy were admitted free citizens of rome, and each had a vote in the public assemblies, it became impossible to distinguish the spurious from the real voter, and from that time all elections and popular deliberations grew tumultuous and disorderly; which paved the way for marius and sylla, pompey and caesar, to trample on the liberties of their country, and at last to dissolve the commonwealth. in so large a state as ours it is therefore very wisely contrived, that the people should do that by their representatives, which it is impracticable to perform in person: representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished. the counties are therefore represented by knights, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed trading interest of the nation; much in the same manner as the burghers in the diet of sweden are chosen by the corporate towns, stockholm sending four, as london does with us, other cities two, and some only one[z]. the number of english representatives is , and of scots ; in all . and every member, though chosen by one particular district, when elected and returned serves for the whole realm. for the end of his coming thither is not particular, but general; not barely to advantage his constituents, but the _common_ wealth; to advise his majesty (as appears from the writ of summons[a]) "_de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum et defensionem regni angliae et ecclesiae anglicanae concernentibus_." and therefore he is not bound, like a deputy in the united provinces, to consult with, or take the advice, of his constituents upon any particular point, unless he himself thinks it proper or prudent so to do. [footnote z: mod. un. hist. xxxiii. .] [footnote a: inst. .] these are the constituent parts of a parliament, the king, the lords spiritual and temporal, and the commons. parts, of which each is so necessary, that the consent of all three is required to make any new law that shall bind the subject. whatever is enacted for law by one, or by two only, of the three is no statute; and to it no regard is due, unless in matters relating to their own privileges. for though, in the times of madness and anarchy, the commons once passed a vote[b], "that whatever is enacted or declared for law by the commons in parliament assembled hath the force of law; and all the people of this nation are concluded thereby, although the consent and concurrence of the king or house of peers be not had thereto;" yet, when the constitution was restored in all it's forms, it was particularly enacted by statute car. ii. c. . that if any person shall maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative authority without the king, such person shall incur all the penalties of a praemunire. [footnote b: jan. .] iii. we are next to examine the laws and customs relating to parliament, thus united together and considered as one aggregate body. the power and jurisdiction of parliament, says sir edward coke[c], is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. and of this high court he adds, it may be truly said "_si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si juridictionem, est capacissima_." it hath sovereign and uncontrolable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. all mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. it can regulate or new model the succession to the crown; as was done in the reign of henry viii and william iii. it can alter the established religion of the land; as was done in a variety of instances, in the reigns of king henry viii and his three children. it can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. it can, in short, do every thing that is not naturally impossible; and therefore some have not scrupled to call it's power, by a figure rather too bold, the omnipotence of parliament. true it is, that what they do, no authority upon earth can undo. so that it is a matter most essential to the liberties of this kingdom, that such members be delegated to this important trust, as are most eminent for their probity, their fortitude, and their knowlege; for it was a known apothegm of the great lord treasurer burleigh, "that england could never be ruined but by a parliament:" and, as sir matthew hale observes[d], this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. to the same purpose the president montesquieu, though i trust too hastily, presages[e]; that as rome, sparta, and carthage have lost their liberty and perished, so the constitution of england will in time lose it's liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive. [footnote c: inst. .] [footnote d: of parliaments, .] [footnote e: sp. l. . .] it must be owned that mr locke[f], and other theoretical writers, have held, that "there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for when such trust is abused, it is thereby forfeited, and devolves to those who gave it." but however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing. for this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. no human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. so long therefore as the english constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control. [footnote f: on gov. p. . §. , .] in order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in either house of parliament, unless he be twenty one years of age. this is expressly declared by statute & w. iii. c. . with regard to the house of commons; though a minor was incapacitated before from sitting in either house, by the law and custom of parliament[g]. to prevent crude innovations in religion and government, it is enacted by statute car. ii. st. . and geo. i. c. . that no member shall vote or sit in either house, till he hath in the presence of the house taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation, and invocation of saints, and the sacrifice of the mass. to prevent dangers that may arise to the kingdom from foreign attachments, connexions, or dependencies, it is enacted by the & w. iii. c. . that no alien, born out of the dominions of the crown of great britain, even though he be naturalized, shall be capable of being a member of either house of parliament. [footnote g: inst. .] farther: as every court of justice hath laws and customs for it's direction, some the civil and canon, some the common law, others their own peculiar laws and customs, so the high court of parliament hath also it's own peculiar law, called the _lex et consuetudo parliamenti_; a law which sir edward coke[h] observes, is "_ab omnibus quaerenda, a multis ignorata, a paucis cognita_." it will not therefore be expected that we should enter into the examination of this law, with any degree of minuteness; since, as the same learned author assures us[i], it is much better to be learned out of the rolls of parliament, and other records, and by precedents, and continual experience, than can be expressed by any one man. it will be sufficient to observe, that the whole of the law and custom of parliament has it's original from this one maxim; "that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere." hence, for instance, the lords will not suffer the commons to interfere in settling a claim of peerage; the commons will not allow the lords to judge of the election of a burgess; nor will either house permit the courts of law to examine the merits of either case. but the maxims upon which they proceed, together with their method of proceeding, rest entirely in the breast of the parliament itself; and are not defined and ascertained by any particular stated laws. [footnote h: inst. .] [footnote i: inst. .] the _privileges_ of parliament are likewise very large and indefinite; which has occasioned an observation, that the principal privilege of parliament consisted in this, that it's privileges were not certainly known to any but the parliament itself. and therefore when in hen. vi the house of lords propounded a question to the judges touching the privilege of parliament, the chief justice, in the name of his brethren, declared, "that they ought not to make answer to that question; for it hath not been used aforetime that the justices should in any wise determine the privileges of the high court of parliament; for it is so high and mighty in his nature, that it may make law; and that which is law, it may make no law; and the determination and knowlege of that privilege belongs to the lords of parliament, and not to the justices[k]." [transcriber's note: missing end quotation mark added] privilege of parliament was principally established, in order to protect it's members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown. if therefore all the privileges of parliament were once to be set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of parliament. the dignity and independence of the two houses are therefore in great measure preserved by keeping their privileges indefinite. some however of the more notorious privileges of the members of either house are, privilege of speech, of person, of their domestics, and of their lands and goods. as to the first, privilege of speech, it is declared by the statute w. & m. st. . c. . as one of the liberties of the people, "that the freedom of speech, and debates, and proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament." and this freedom of speech is particularly demanded of the king in person, by the speaker of the house of commons, at the opening of every new parliament. so likewise are the other privileges, of person, servants, lands and goods; which are immunities as antient as edward the confessor, in whose laws[l] we find this precept. "_ad synodos venientibus, sive summoniti sint, sive per se quid agendum habuerint, sit summa pax_:" and so too, in the old gothic constitutions, "_extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu_[m]." this includes not only privilege from illegal violence, but also from legal arrests, and seisures by process from the courts of law. to assault by violence a member of either house, or his menial servants, is a high contempt of parliament, and there punished with the utmost severity. it has likewise peculiar penalties annexed to it in the courts of law, by the statutes hen. iv. c. . and hen. vi. c. . neither can any member of either house be arrested and taken into custody, nor served with any process of the courts of law; nor can his menial servants be arrested; nor can any entry be made on his lands; nor can his goods be distrained or seised; without a breach of the privilege of parliament. these privileges however, which derogate from the common law, being only indulged to prevent the member's being diverted from the public business, endure no longer than the session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred and inviolable; and in a commoner for forty days after every prorogation, and forty days before the next appointed meeting[n]; which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a time. but this privilege of person does not hold in crimes of such public malignity as treason, felony, or breach of the peace[o]; or rather perhaps in such crimes for which surety of the peace may be required. as to all other privileges which obstruct the ordinary course of justice, they cease by the statutes w. iii. c. . and geo. ii. c. . immediately after the dissolution or prorogation of the parliament, or adjournment of the houses for above a fortnight; and during these recesses a peer, or member of the house of commons, may be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands and goods. in these cases the king has also his prerogative: he may sue for his debts, though not arrest the person of a member, during the sitting of parliament; and by statute & ann. c. . a member may be sued during the sitting of parliament for any misdemesnor or breach of trust in a public office. likewise, for the benefit of commerce, it is provided by statute geo. iii. c. , that any trader, having privilege of parliament, may be served with legal process for any just debt, (to the amount of _l._) and unless he makes satisfaction within two months, it shall be deemed an act of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in like manner as against any other. [footnote k: seld. baronage. part. . c. .] [footnote l: _cap._ .] [footnote m: stiernh. _de jure goth._ _l._ . _c._ .] [footnote n: lev. .] [footnote o: inst. .] these are the general heads of the laws and customs relating to parliament, considered as one aggregate body. we will next proceed to iv. the laws and customs relating to the house of lords in particular. these, if we exclude their judicial capacity, which will be more properly treated of in the third and fourth books of these commentaries, will take up but little of our time. one very antient privilege is that declared by the charter of the forest[p], confirmed in parliament hen. iii; viz. that every lord spiritual or temporal summoned to parliament, and passing through the king's forests, may, both in going and returning, kill one or two of the king's deer without warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may not seem to take the king's venison by stealth. [footnote p: cap. .] in the next place they have a right to be attended, and constantly are, by the judges of the court of king's bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. the secretaries of state, the attorney and solicitor general, and the rest of the king's learned counsel being serjeants, were also used to attend the house of peers, and have to this day their regular writs of summons issued out at the beginning of every parliament[q]: but, as many of them have of late years been members of the house of commons, their attendance is fallen into disuse. [footnote q: stat. hen. viii. c. . smith's commonw. b. . c. . moor. . inst. . hale of parl. .] another privilege is, that every peer, by licence obtained from the king, may make another lord of parliament his proxy, to vote for him in his absence[r]. a privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people[s]. [footnote r: seld. baronage. p. . c. .] [footnote s: inst. .] each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually stiled his protest. all bills likewise, that may in their consequences any way affect the rights of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons. there is also one statute peculiarly relative to the house of lords; ann. c. . which regulates the election of the sixteen representative peers of north britain, in consequence of the twenty second and twenty third articles of the union: and for that purpose prescribes the oaths, &c, to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a praemunire. v. the peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the elections of members to serve in parliament. first, with regard to taxes: it is the antient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them[t]; although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. the general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. this reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that a very large share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the _sole_ persons taxed, this cannot be the reason of their having the _sole_ right of raising and modelling the supply. the true reason, arising from the spirit of our constitution, seems to be this. the lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are a temporary elective body, freely nominated by the people. it would therefore be extremely dangerous, to give them any power of framing new taxes for the subject: it is sufficient, that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. but so reasonably jealous are the commons of this valuable privilege, that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land tax; or for private benefit, and collected in any particular district; as by turnpikes, parish rates, and the like. yet sir matthew hale[u] mentions one case, founded on the practice of parliament in the reign of henry vi[w], wherein he thinks the lords may alter a money bill; and that is, if the commons grant a tax, as that of tonnage and poundage, for _four_ years; and the lords alter it to a less time, as for _two_ years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without farther ceremony; for the alteration of the lords is consistent with the grant of the commons. but such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons: and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected. [footnote t: inst. .] [footnote u: on parliaments, , .] [footnote w: year book, hen. vi. .] next, with regard to the elections of knights, citizens, and burgesses; we may observe that herein consists the exercise of the democratical part of our constitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. in all democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. and the athenians were so justly jealous of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death: because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty, to which he had no title. in england, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives. the laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, . the qualifications of the electors. . the qualifications of the elected. . the proceedings at elections. . as to the qualifications of the electors. the true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. if these persons had votes, they would be tempted to dispose of them under some undue influence or other. this would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. if it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. but, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. and this constitution of suffrages is framed upon a wiser principle than either of the methods of voting, by centuries, or by tribes, among the romans. in the method by centuries, instituted by servius tullius, it was principally property, and not numbers that turned the scale: in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property entirely overlooked. hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a levelling principle. our constitution steers between the two extremes. only such as are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, but what is entitled to a vote in some place or other in the kingdom. nor is comparative wealth, or property, entirely disregarded in elections; for though the richest man has only one vote at one place, yet if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. this is the spirit of our constitution: not that i assert it is in fact quite so perfect as i have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people. but to return to our qualifications; and first those of electors for knights of the shire. . by statute hen. vi. c. . and hen. vi. c. . the knights of the shires shall be chosen of people dwelling in the same counties; whereof every man shall have freehold to the value of forty shillings by the year within the county; which by subsequent statutes is to be clear of all charges and deductions, except parliamentary and parochial taxes. the knights of shires are the representatives of the landholders, or landed interest, of the kingdom: their electors must therefore have estates in lands or tenements, within the county represented: these estates must be freehold, that is, for term of life at least; because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villeins, absolutely dependent upon their lord: this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man. for bishop fleetwood, in his _chronicon pretiosum_ written about sixty years since, has fully proved forty shillings in the reign of henry vi to have been equal to twelve pounds _per annum_ in the reign of queen anne; and, as the value of money is very considerably lowered since the bishop wrote, i think we may fairly conclude, from this and other circumstances, that what was equivalent to twelve pounds in his days is equivalent to twenty at present. the other less important qualifications of the electors for counties in england and wales may be collected from the statutes cited in the margin[x]; which direct, . that no person under twenty one years of age shall be capable of voting for any member. this extends to all sorts of members, as well for boroughs as counties; as does also the next, viz. . that no person convicted of perjury, or subornation of perjury, shall be capable of voting in any election. . that no person shall vote in right of any freehold, granted to him fraudulently to qualify him to vote. fraudulent grants are such as contain an agreement to reconvey, or to defeat the estate granted; which agreements are made void, and the estate is absolutely vested in the person to whom it is so granted. and, to guard the better against such frauds, it is farther provided, . that every voter shall have been in the actual possession, or receipt of the profits, of his freehold to his own use for twelve calendar months before; except it came to him by descent, marriage, marriage settlement, will, or promotion to a benefice or office. . that no person shall vote in respect of an annuity or rentcharge, unless registered with the clerk of the peace twelve calendar months before. . that in mortgaged or trust-estates, the person in possession, under the abovementioned restrictions, shall have the vote. . that only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. . that no estate shall qualify a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the election. . that no tenant by copy of court roll shall be permitted to vote as a freeholder. thus much for the electors in counties. [footnote x: & w. iii. c. . ann. c. . geo. ii. c. . geo. ii. c. . geo. ii. c. . geo. iii. c. .] as for the electors of citizens and burgesses, these are supposed to be the mercantile part or trading interest of this kingdom. but as trade is of a fluctuating nature, and seldom long fixed in a place, it was formerly left to the crown to summon, _pro re nata_, the most flourishing towns to send representatives to parliament. so that as towns encreased in trade, and grew populous, they were admitted to a share in the legislature. but the misfortune is, that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred; except a few which petitioned to be eased of the expence, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess; which was the rate of wages established in the reign of edward iii[y]. hence the members for boroughs now bear above a quadruple proportion to those for counties, and the number of parliament men is increased since fortescue's time, in the reign of henry the sixth, from to upwards of , exclusive of those for scotland. the universities were in general not empowered to send burgesses to parliament; though once, in edw. i. when a parliament was summoned to consider of the king's right to scotland, there were issued writs, which required the university of oxford to send up four or five, and that of cambridge two or three, of their most discreet and learned lawyers for that purpose[z]. but it was king james the first, who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. the right of election in boroughs is various, depending intirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute geo. ii. c. . the right of voting for the future shall be allowed according to the last determination of the house of commons concerning it. and by statute geo. iii. c. . no freeman of any city or borough (other than such as claim by birth, marriage, or servitude) shall be intitled to vote therein unless he hath been admitted to his freedom twelve calendar months before. [footnote y: inst. .] [footnote z: prynne parl. writs. i. .] . our second point is the qualification of persons to be elected members of the house of commons. this depends upon the law and custom of parliaments[a], and the statutes referred to in the margin[b]. and from these it appears, . that they must not be aliens born, or minors. . that they must not be any of the twelve judges, because they sit in the lords' house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit any where[c]. . that sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers[d]; but that sheriffs of one county are eligible to be knights of another[e]. . that, in strictness, all members ought to be inhabitants of the places for which they are chosen: but this is intirely disregarded. . that no persons concerned in the management of any duties or taxes created since , except the commissioners of the treasury, nor any of the officers following, (viz. commissioners of prizes, transports, sick and wounded, wine licences, navy, and victualling; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of minorca or gibraltar; officers of the excise and customs; clerks or deputies in the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licences, hackney coaches, hawkers and pedlars) nor any persons that hold any new office under the crown created since , are capable of being elected members. . that no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected. . that if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void; but such member is capable of being re-elected. . that all knights of the shire shall be actual knights, or such notable esquires and gentlemen, as have estates sufficient to be knights, and by no means of the degree of yeomen. this is reduced to a still greater certainty, by ordaining, . that every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds _per annum_, and every citizen and burgess to the value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members for the two universities: which somewhat ballances the ascendant which the boroughs have gained over the counties, by obliging the trading interest to make choice of landed men: and of this qualification the member must make oath, and give in the particulars in writing, at the time of his taking his seat. but, subject to these restrictions and disqualifications, every subject of the realm is eligible of common right. it was therefore an unconstitutional prohibition, which was inserted in the king's writs, for the parliament holden at coventry, hen. iv, that no apprentice or other man of the law should be elected a knight of the shire therein[f]: in return for which, our law books and historians[g] have branded this parliament with the name of _parliamentum indoctum_, or the lack-learning parliament; and sir edward coke observes with some spleen[h], that there was never a good law made thereat. [footnote a: inst. .] [footnote b: hen. v. c. . hen. vi. c. . w. & m. st. . c. . & w. & m. c. . & w. iii. c. . & w. iii. c. . ann. c. . ann. c. . geo. i. c. . geo. ii. c. . geo. ii. c. .] [footnote c: inst. .] [footnote d: hale of parl. .] [footnote e: inst. .] [footnote f: pryn. on inst. .] [footnote g: walsingh. _a.d._ .] [footnote h: inst. .] . the third point regarding elections, is the method of proceeding therein. this is also regulated by the law of parliament, and the several statutes referred to in the margin[i]; all which i shall endeavour to blend together, and extract out of them a summary account of the method of proceeding to elections. [footnote i: hen. iv. c. . hen. vi. c. . hen. vi. c. . w. & m. st. . c. . w. & m. st. . c. . & w. & m. c. . w. iii. c. . & w. iii. c. . and c. . & w. iii. c. . & w. iii. c. . ann. c. . ann. c. . ann. c. . and c. . geo. ii. c. . geo. ii. c. . geo. ii. c. . geo. ii. c. .] as soon as the parliament is summoned, the lord chancellor, (or if a vacancy happens during parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members; and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the same; and to return the persons chosen, together with the precept, to the sheriff. but elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen after the delivery of the writ. the county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire, it must be held at the most usual place. if the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and in all such cases ten days public notice must be given of the time and place of the election. and, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. for mr locke[k] ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, "if he employs the force, treasure, and offices of the society to corrupt the representatives, or openly to preingage the electors, and prescribe what manner of persons shall be chosen. for thus to regulate candidates and electors, and new model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?" as soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not return till one day after the poll is ended. riots likewise have been frequently determined to make an election void. by vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. if any officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to intermeddle in elections, by persuading any voter or dissuading him, he forfeits _l_, and is disabled to hold any office. [footnote k: on gov. part. . §. .] thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. but the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. to prevent which it is enacted that no candidate shall, after the date (usually called the _teste_) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected; on pain of being incapable to serve for that place in parliament. and if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, both he that takes and he that offers such bribe forfeits _l_, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence[l]. the first instance that occurs of election bribery, was so early as eliz. when one thomas longe (being a simple man and of small capacity to serve in parliament) acknowleged that he had given the returning officer and others of the borough of westbury four pounds to be returned member, and was for that premium elected. but for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned[m]. but, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution. [footnote l: in like manner the julian law _de ambitu_ inflicts fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. _ff._ . . .] [footnote m: inst. . hale of parl. . com. journ. & may .] undue influence being thus (i wish the depravity of mankind would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. the candidates likewise, if required, must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. and it might not be amiss, if the members elected were bound to take the latter oath, as well as the former; which in all probability would be much more effectual, than administring it only to the electors. the election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority: and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon, to the clerk of the crown in chancery; before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy; and this under penalty of _l_. if the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of henry vi, _l_; and the returning officer in boroughs for a like false return _l_; and they are besides liable to an action, in which double damages shall be recovered, by the later statutes of king william: and any person bribing the returning officer shall alio forfeit _l_. but the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. and this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our enquiries into the laws and customs more peculiarly relative to the house of commons. vi. i proceed now, sixthly, to the method of making laws; which is much the same in both houses: and i shall touch it very briefly, beginning in the house of commons. but first i must premise, that for dispatch of business each house of parliament has it's speaker. the speaker of the house of lords is the lord chancellor, or keeper of the king's great seal; whose office it is to preside there, and manage the formality of business. the speaker of the house of commons is chosen by the house; but must be approved by the king. and herein the usage of the two houses differs, that the speaker of the house of commons cannot give his opinion or argue any question in the house; but the speaker of the house of lords may. in each house the act of the majority binds the whole; and this majority is declared by votes openly and publickly given: not as at venice, and many other senatorial assemblies, privately or by ballot. this latter method may be serviceable, to prevent intrigues and unconstitutional combinations: but is impossible to be practiced with us; at least in the house of commons, where every member's conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection. to bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to prefer a petition; which must be presented by a member, and usually sets forth the grievance desired to be remedied. this petition (when founded on facts that may be in their nature disputed) is referred to a committee of members, who examine the matter alleged, and accordingly report it to the house; and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. in public matters the bill is brought in upon motion made to the house, without any petition at all. formerly, all bills were drawn in the form of petitions, which were entered upon the _parliament rolls_, with the king's answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case required[n]: and at the end of each parliament the judges drew them into the form of a statute, which was entered on the _statute-rolls_. in the reign of henry v, to prevent mistakes and abuses, the statutes were drawn up by the judges before the end of the parliament; and, in the reign of henry vi, bills in the form of acts, according to the modern custom, were first introduced. [footnote n: see, among numberless other instances, the _articuli cleri_, edw. ii.] the persons, directed to bring in the bill, present it in a competent time to the house, drawn out on paper, with a multitude of blanks, or void spaces, where any thing occurs that is dubious, or necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the nature and quantity of penalties, or of any sums of money to be raised) being indeed only the sceleton of the bill. in the house of lords, if the bill begins there, it is (when of a private nature) perused by two of the judges, who settle all points of legal propriety. this is read a first time, and at a convenient distance a second time; and after each reading the speaker opens to the house the substance of the bill, and puts the question, whether it shall proceed any farther. the introduction of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the opposition succeeds, the bill must be dropt for that sessions; as it must also, if opposed with success in any of the subsequent stages. after the second reading it is committed, that is, referred to a committee; which is either selected by the house in matters of small importance, or else, upon a bill of consequence, the house resolves itself into a committee of the whole house. a committee of the whole house is composed of every member; and, to form it, the speaker quits the chair, (another member being appointed chairman) and may sit and debate as a private member. in these committees the bill is debated clause by clause, amendments made, the blanks filled up, and sometimes the bill entirely new modelled. after it has gone through the committee, the chairman reports it to the house with such amendments as the committee have made; and then the house reconsider the whole bill again, and the question is repeatedly put upon every clause and amendment. when the house have agreed or disagreed to the amendments of the committee, and sometimes added new amendments of their own, the bill is then ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment sewed together. when this is finished, it is read a third time, and amendments are sometimes then made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the bill, which is called a ryder. the speaker then again opens the contents; and, holding it up in his hands, puts the question, whether the bill shall pass. if this is agreed to, one of the members is directed to carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to receive it. it there passes through the same forms as in the other house, (except engrossing, which is already done) and, if rejected, no more notice is taken, but it passes _sub silentio_, to prevent unbecoming altercations. but if it is agreed to, the lords send a message by two masters in chancery (or sometimes two of the judges) that they have agreed to the same: and the bill remains with the lords, if they have made no amendment to it. but if any amendments are made, such amendments are sent down with the bill to receive the concurrence of the commons. if the commons disagree to the amendments, a conference usually follows between members deputed from each house; who for the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is dropped. if the commons agree to the amendments, the bill is sent back to the lords by one of the members, with a message to acquaint them therewith. the same forms are observed, _mutatis mutandis_, when the bill begins in the house of lords. and when both houses have done with the bill, it always is deposited in the house of peers, to wait the royal assent. this may be given two ways: . in person; when the king comes to the house of peers, in his crown and royal robes, and sending for the commons to the bar, the titles of all the bills that have passed both houses are read; and the king's answer is declared by the clerk of the parliament in norman-french: a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force. if the king consents to a public bill, the clerk usually declares, "_le roy le veut_, the king wills it so to be;" if to a private bill, "_soit fait come il est desirè_, be it as it is desired." if the king refuses his assent, it is in the gentle language of "_le roy s'avisera_, the king will advise upon it." . by statute hen. viii. c. . the king may give his assent by letters patent under his great seal, signed with his hand, and notified, in his absence, to both houses assembled together in the high house. and, when the bill has received the royal assent in either of these ways, it is then, and not before, a statute or act of parliament. this statute or act is placed among the records of the kingdom; there needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the emperors edicts: because every man in england is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives. however, a copy thereof is usually printed at the king's press, for the information of the whole land. and formerly, before the invention of printing, it was used to be published by the sheriff of every county; the king's writ being sent to him at the end of every session, together with a transcript of all the acts made at that session, commanding him "_ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi expedire viderit, publice proclamari, et firmiter teneri et observari faciat_." and the usage was to proclaim them at his county court, and there to keep them, that whoever would might read or take copies thereof; which custom continued till the reign of henry the seventh[o]. [footnote o: inst. . inst. .] an act of parliament, thus made, is the exercise of the highest authority that this kingdom acknowleges upon earth. it hath power to bind every subject in the land, and the dominions thereunto belonging; nay, even the king himself, if particularly named therein. and it cannot be altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same authority of parliament: for it is a maxim in law, that it requires the same strength to dissolve, as to create an obligation. it is true it was formerly held, that the king might in many cases dispense with penal statutes[p]: but now by statute w. & m. st. . c. . it is declared, that the suspending or dispensing with laws by regal authority, without consent of parliament, is illegal. [footnote p: finch. l. . .] vii. there remains only, in the seventh and last place, to add a word or two concerning the manner in which parliaments may be adjourned, prorogued, or dissolved. an adjournment is no more than a continuance of the session from one day to another, as the word itself signifies: and this is done by the authority of each house separately every day; and sometimes for a fortnight or a month together, as at christmas or easter, or upon other particular occasions. but the adjournment of one house is no adjournment of the other[q]. it hath also been usual, when his majesty hath signified his pleasure that both or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure so signified, and to adjourn accordingly[r]. otherwise, besides the indecorum of a refusal, a prorogation would assuredly follow; which would often be very inconvenient to both public and private business. for prorogation puts an end to the session; and then such bills, as are only begun and not perfected, must be resumed _de novo_ (if at all) in a subsequent session: whereas, after an adjournment, all things continue in the same state as at the time of the adjournment made, and may be proceeded on without any fresh commencement. [footnote q: inst. .] [footnote r: com. journ. _passim_: _e.g._ jun. . apr. . jun. nov. dec. . jul. . sept. . jul. . aug. . febr. . jun. . apr. . feb. . dec. .] a prorogation is the continuance of the parliament from one session to another, as an adjournment is a continuation of the session from day to day. this is done by the royal authority, expressed either by the lord chancellor in his majesty's presence, or by commission from the crown, or frequently by proclamation. both houses are necessarily prorogued at the same time; it not being a prorogation of the house of lords, or commons, but of the parliament. the session is never understood to be at an end, until a prorogation: though, unless some act be passed or some judgment given in parliament, it is in truth no session at all[s]. and formerly the usage was, for the king to give the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the parliament; though sometimes only for a day or two[t]: after which all business then depending in the houses was to be begun again. which custom obtained so strongly, that it once became a question[u], whether giving the royal assent to a single bill did not of course put an end to the session. and, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute car. i. c. . was passed to declare, that the king's assent to that and some other acts should not put an end to the session; and, even so late as the restoration of charles ii, we find a proviso tacked to the first bill then enacted[w] that his majesty's assent thereto should not determine the session of parliament. but it now seems to be allowed, that a prorogation must be expressly made, in order to determine the session. and, if at the time of an actual rebellion, or imminent danger of invasion, the parliament shall be separated by adjournment or prorogation, the king is empowered[x] to call them together by proclamation, with fourteen days notice of the time appointed for their reassembling. [footnote s: inst. . hale of parl. .] [footnote t: com. journ. oct. .] [footnote u: _ibid._ nov. .] [footnote w: stat. car. ii. c. .] [footnote x: stat. geo. ii. c. .] a dissolution is the civil death of the parliament; and this may be effected three ways: . by the king's will, expressed either in person or by representation. for, as the king has the sole right of convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he pleases) prorogue the parliament for a time, or put a final period to it's existence. if nothing had a right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. and this would be extremely dangerous, if at any time it should attempt to encroach upon the executive power: as was fatally experienced by the unfortunate king charles the first; who, having unadvisedly passed an act to continue the parliament then in being till such time as it should please to dissolve itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them. it is therefore extremely necessary that the crown should be empowered to regulate the duration of these assemblies, under the limitations which the english constitution has prescribed: so that, on the one hand, they may frequently and regularly come together, for the dispatch of business and redress of grievances; and may not, on the other, even with the consent of the crown, be continued to an inconvenient or unconstitutional length. . a parliament may be dissolved by the demise of the crown. this dissolution formerly happened immediately upon the death of the reigning sovereign, for he being considered in law as the head of the parliament, (_caput, principium, et finis_) that failing, the whole body was held to be extinct. but, the calling a new parliament immediately on the inauguration of the successor being found inconvenient, and dangers being apprehended from having no parliament in being in case of a disputed succession, it was enacted by the statutes & w. iii. c. . and ann. c. . that the parliament in being shall continue for six months after the death of any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be, at the time of the king's death, separated by adjournment or prorogation, it shall notwithstanding assemble immediately: and that, if no parliament is then in being, the members of the last parliament shall assemble, and be again a parliament. . lastly, a parliament may be dissolved or expire by length of time. for if either the legislative body were perpetual; or might last for the life of the prince who convened them, as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify it's faults in the next. a legislative assembly also, which is sure to be separated again, (whereby it's members will themselves become private men, and subject to the full extent of the laws which they have enacted for others) will think themselves bound, in interest as well as duty, to make only such laws as are good. the utmost extent of time that the same parliament was allowed to sit, by the statute w. & m. c. . was _three_ years; after the expiration of which, reckoning from the return of the first summons, the parliament was to have no longer continuance. but by the statute geo. i. st. . c. . (in order, professedly, to prevent the great and continued expenses of frequent elections, and the violent heats and animosities consequent thereupon, and for the peace and security of the government then just recovering from the late rebellion) this term was prolonged to _seven_ years; and, what alone is an instance of the vast authority of parliament, the very same house, that was chosen for three years, enacted it's own continuance for seven. so that, as our constitution now stands, the parliament must expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal prerogative. chapter the third. of the king, and his title. the supreme executive power of these kingdoms is vested by our laws in a single person, the king or queen: for it matters not to which sex the crown descends; but the person entitled to it, whether male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign power; as is declared by statute mar. st. . c. . in discoursing of the royal rights and authority, i shall consider the king under six distinct views: . with regard to his title. . his royal family. . his councils. . his duties. . his prerogative. . his revenue. and, first, with regard to his title. the executive power of the english nation being vested in a single person, by the general consent of the people, the evidence of which general consent is long and immemorial usage, it became necessary to the freedom and peace of the state, that a rule should be laid down, uniform, universal, and permanent; in order to mark out with precision, _who_ is that single person, to whom are committed (in subservience to the law of the land) the care and protection of the community; and to whom, in return, the duty and allegiance of every individual are due. it is of the highest importance to the public tranquillity, and to the consciences of private men, that this rule should be clear and indisputable: and our constitution has not left us in the dark upon this material occasion. it will therefore be the endeavour of this chapter to trace out the constitutional doctrine of the royal succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which the principles of liberty and the dignity of the subject require. the grand fundamental maxim upon which the _jus coronae_, or right of succession to the throne of these kingdoms, depends, i take to be this: "that the crown is, by common law and constitutional custom, hereditary; and this in a manner peculiar to itself: but that the right of inheritance may from time to time be changed or limited by act of parliament; under which limitations the crown still continues hereditary." and this proposition it will be the business of this chapter to prove, in all it's branches: first, that the crown is hereditary; secondly, that it is hereditary in a manner peculiar to itself; thirdly, that this inheritance is subject to limitation by parliament; lastly, that when it is so limited, it is hereditary in the new proprietor. . first, it is in general _hereditary_, or descendible to the next heir, on the death or demise of the last proprietor. all regal governments must be either hereditary or elective: and, as i believe there is no instance wherein the crown of england has ever been asserted to be elective, except by the regicides at the infamous and unparalleled trial of king charles i, it must of consequence be hereditary. yet while i assert an hereditary, i by no means intend a _jure divino_, title to the throne. such a title may be allowed to have subsisted under the theocratic establishments of the children of israel in palestine: but it never yet subsisted in any other country; save only so far as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of providence. nor indeed have a _jure divino_ and an _hereditary_ right any necessary connexion with each other; as some have very weakly imagined. the titles of david and jehu were equally _jure divino_, as those of either solomon or ahab; and yet david slew the sons of his predecessor, and jehu his predecessor himself. and when our kings have the same warrant as they had, whether it be to sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then, and not before, possess the crown of england by a right like theirs, _immediately_ derived from heaven. the hereditary right, which the laws of england acknowlege, owes it's origin to the founders of our constitution, and to them only. it has no relation to, nor depends upon, the civil laws of the jews, the greeks, the romans, or any other nation upon earth: the municipal laws of one society having no connexion with, or influence upon, the fundamental polity of another. the founders of our english monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chose, and upon good reason, to establish originally a succession by inheritance. this has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other. it must be owned, an elective monarchy seems to be the most obvious, and best suited of any to the rational principles of government, and the freedom of human nature: and accordingly we find from history that, in the infancy and first rudiments of almost every state, the leader, chief magistrate, or prince, hath usually been elective. and, if the individuals who compose that state could always continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and unawed by violence, elective succession were as much to be desired in a kingdom, as in other inferior communities. the best, the wisest, and the bravest man would then be sure of receiving that crown, which his endowments have merited; and the sense of an unbiassed majority would be dutifully acquiesced in by the few who were of different opinions. but history and observation will inform us, that elections of every kind (in the present state of human nature) are too frequently brought about by influence, partiality, and artifice: and, even where the case is otherwise, these practices will be often suspected, and as constantly charged upon the successful, by a splenetic disappointed minority. this is an evil, to which all societies are liable; as well those of a private and domestic kind, as the great community of the public, which regulates and includes the rest. but in the former there is this advantage; that such suspicions, if false, proceed no farther than jealousies and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by legal means, by an appeal to those tribunals to which every member of society has (by becoming such) virtually engaged to submit. whereas, in the great and independent society, which every nation composes, there is no superior to resort to but the law of nature; no method to redress the infringements of that law, but the actual exertion of private force. as therefore between two nations, complaining of mutual injuries, the quarrel can only be decided by the law of arms; so in one and the same nation, when the fundamental principles of their common union are supposed to be invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly made, the only tribunal to which the complainants can appeal is that of the god of battels, the only process by which the appeal can be carried on is that of a civil and intestine war. an hereditary succession to the crown is therefore now established, in this and most other countries, in order to prevent that periodical bloodshed and misery, which the history of antient imperial rome, and the more modern experience of poland and germany, may shew us are the consequences of elective kingdoms. . but, secondly, as to the particular mode of inheritance, it in general corresponds with the feodal path of descents, chalked out by the common law in the succession to landed estates; yet with one or two material exceptions. like them, the crown will descend lineally to the issue of the reigning monarch; as it did from king john to richard ii, through a regular pedigree of six lineal descents. as in them, the preference of males to females, and the right of primogeniture among the males, are strictly adhered to. thus edward v succeeded to the crown, in preference to richard his younger brother and elizabeth his elder sister. like them, on failure of the male line, it descends to the issue female; according to the antient british custom remarked by tacitus[a], "_solent foeminarum ductu bellare, et sexum in imperiis non discernere_." thus mary i succeeded to edward vi; and the line of margaret queen of scots, the daughter of henry vii, succeeded on failure of the line of henry viii, his son. but, among the females, the crown descends by right of primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all the daughters at once; the evident necessity of a sole succession to the throne having occasioned the royal law of descents to depart from the common law in this respect: and therefore queen mary on the death of her brother succeeded to the crown alone, and not in partnership with her sister elizabeth. again: the doctrine of representation prevails in the descent of the crown, as it does in other inheritances; whereby the lineal descendants of any person deceased stand in the same place as their ancestor, if living, would have done. thus richard ii succeeded his grandfather edward iii, in right of his father the black prince; to the exclusion of all his uncles, his grandfather's younger children. lastly, on failure of lineal descendants, the crown goes to the next collateral relations of the late king; provided they are lineally descended from the blood royal, that is, from that royal stock which originally acquired the crown. thus henry i succeeded to william ii, john to richard i, and james i to elizabeth; being all derived from the conqueror, who was then the only regal stock. but herein there is no objection (as in the case of common descents) to the succession of a brother, an uncle, or other collateral relation, of the _half_ blood; that is, where the relationship proceeds not from the same _couple_ of ancestors (which constitutes a kinsman of the _whole_ blood) but from a _single_ ancestor only; as when two persons are derived from the same father, and not from the same mother, or _vice versa_: provided only, that the one ancestor, from whom both are descended, be he from whose veins the blood royal is communicated to each. thus mary i inherited to edward vi, and elizabeth inherited to mary; all born of the same father, king henry viii, but all by different mothers. the reason of which diversity, between royal and common descents, will be better understood hereafter, when we examine the nature of inheritances in general. [footnote a: _in vit. agricolae._] . the doctrine of _hereditary_ right does by no means imply an _indefeasible_ right to the throne. no man will, i think, assert this, that has considered our laws, constitution, and history, without prejudice, and with any degree of attention. it is unquestionably in the breast of the supreme legislative authority of this kingdom, the king and both houses of parliament, to defeat this hereditary right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest the inheritance in any one else. this is strictly consonant to our laws and constitution; as may be gathered from the expression so frequently used in our statute book, of "the king's majesty, his heirs, and successors." in which we may observe, that as the word, "heirs," necessarily implies an inheritance or hereditary right, generally subsisting in the royal person; so the word, "successors," distinctly taken, must imply that this inheritance may sometimes be broke through; or, that there may be a successor, without being the heir, of the king. and this is so extremely reasonable, that without such a power, lodged somewhere, our polity would be very defective. for, let us barely suppose so melancholy a case, as that the heir apparent should be a lunatic, an ideot, or otherwise incapable of reigning: how miserable would the condition of the nation be, if he were also incapable of being set aside!--it is therefore necessary that this power should be lodged somewhere: and yet the inheritance, and regal dignity, would be very precarious indeed, if this power were _expressly_ and _avowedly_ lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or discontent should happen to take the lead. consequently it can no where be so properly lodged as in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be supposed, will agree to any thing improperly prejudicial to the rights of his own descendants. and therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged it. . but, fourthly; however the crown maybe limited or transferred, it still retains it's descendible quality, and becomes hereditary in the wearer of it: and hence in our law the king is said never to die, in his political capacity; though, in common with other men, he is subject to mortality in his natural: because immediately upon the natural death of henry, william, or edward, the king survives in his successor; and the right of the crown vests, _eo instanti_, upon his heir; either the _haeres natus_, if the course of descent remains unimpeached, or the _haeres factus_, if the inheritance be under any particular settlement. so that there can be no _interregnum_; but as sir matthew hale[b] observes, the right of sovereignty is fully invested in the successor by the very descent of the crown. and therefore, however acquired, it becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered and determined. in the same manner as landed estates, to continue our former comparison, are by the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which the property of those lands may be transferred to another person. if this transfer be made simply and absolutely, the lands will be hereditary in the new owner, and descend to his heirs at law: but if the transfer be clogged with any limitations, conditions, or entails, the lands must descend in that chanel, so limited and prescribed, and no other. [footnote b: hist. p.c. .] in these four points consists, as i take it, the constitutional notion of hereditary right to the throne: which will be still farther elucidated, and made clear beyond all dispute, from a short historical view of the successions to the crown of england, the doctrines of our antient lawyers, and the several acts of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or to bar, the hereditary title to the throne. and in the pursuit of this enquiry we shall find, that from the days of egbert, the first sole monarch of this kingdom, even to the present, the four cardinal maxims above mentioned have ever been held the constitutional canons of succession. it is true, this succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown descended on a minor or the like, has been very frequently suspended; but has always at last returned back into the old hereditary chanel, though sometimes a very considerable period has intervened. and, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. and, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation. king egbert about the year , found himself in possession of the throne of the west saxons, by a long and undisturbed descent from his ancestors of above three hundred years. how his ancestors acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to enquire; and is indeed a point of such high antiquity, as must render all enquiries at best but plausible guesses. his right must be supposed indisputably good, because we know no better. the other kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. and it is an established maxim in civil polity, and the law of nations, that when one country is united to another in such a manner, as that one keeps it's government and states, and the other loses them; the latter entirely assimilates or is melted down in the former, and must adopt it's laws and customs[c]. and in pursuance of this maxim there hath ever been, since the union of the heptarchy in king egbert, a general acquiescence under the hereditary monarchy of the west saxons, through all the united kingdoms. [footnote c: puff. l. of n. and n. b. . c. . §. .] from egbert to the death of edmund ironside, a period of above two hundred years, the crown descended regularly, through a succession of fifteen princes, without any deviation or interruption; save only that king edred, the uncle of edwy, mounted the throne for about nine years, in the right of his nephew a minor, the times being very troublesome and dangerous. but this was with a view to preserve, and not to destroy, the succession; and accordingly edwy succeeded him. king edmund ironside was obliged, by the hostile irruption of the danes, at first to divide his kingdom with canute, king of denmark; and canute, after his death, seised the whole of it, edmund's sons being driven into foreign countries. here the succession was suspended by actual force, and a new family introduced upon the throne: in whom however this new acquired throne continued hereditary for three reigns; when, upon the death of hardiknute, the antient saxon line was restored in the person of edward the confessor. he was not indeed the true heir to the crown, being the younger brother of king edmund ironside, who had a son edward, sirnamed (from his exile) the outlaw, still living. but this son was then in hungary; and, the english having just shaken off the danish yoke, it was necessary that somebody on the spot should mount the throne; and the confessor was the next of the royal line then in england. on his decease without issue, harold ii usurped the throne, and almost at the same instant came on the norman invasion: the right to the crown being all the time in edgar, sirnamed atheling, (which signifies in the saxon language the first of the blood royal) who was the son of edward the outlaw, and grandson of edmund ironside; or, as matthew paris[d] well expresses the sense of our old constitution, "_edmundus autem latusferreum, rex naturalis de stirpe regum, genuit edwardum; et edwardus genuit edgarum, cui de jure debebatur regnum anglorum_." [footnote d: _a.d._ .] william the norman claimed the crown by virtue of a pretended grant from king edward the confessor; a grant which, if real, was in itself utterly invalid: because it was made, as harold well observed in his reply to william's demand[e], "_absque generali senatus et populi conventu et edicto_;" which also very plainly implies, that it then was generally understood that the king, with consent of the general council, might dispose of the crown and change the line of succession. william's title however was altogether as good as harold's, he being a mere private subject, and an utter stranger to the royal blood. edgar atheling's undoubted right was overwhelmed by the violence of the times; though frequently asserted by the english nobility after the conquest, till such time as he died without issue: but all their attempts proved unsuccessful, and only served the more firmly to establish the crown in the family which had newly acquired it. [footnote e: william of malmsb. _l._ .] this conquest then by william of normandy was, like that of canute before, a forcible transfer of the crown of england into a new family: but, the crown being so transferred, all the inherent properties of the crown were with it transferred also. for, the victory obtained at hastings not being[f] a victory over the nation collectively, but only over the person of harold, the only right that the conqueror could pretend to acquire thereby, was the right to possess the crown of england, not to alter the nature of the government. and therefore, as the english laws still remained in force, he must necessarily take the crown subject to those laws, and with all it's inherent properties; the first and principal of which was it's descendibility. here then we must drop our race of saxon kings, at least for a while, and derive our descents from william the conqueror as from a new stock, who acquired by right of war (such as it is, yet still the _dernier resort_ of kings) a strong and undisputed title to the inheritable crown of england. [footnote f: hale, hist. c.l. c. . seld. review of tithes, c. .] accordingly it descended from him to his sons william ii and henry i. robert, it must be owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who proceeded upon a notion, which prevailed for some time in the law of descents, that when the eldest son was already provided for (as robert was constituted duke of normandy by his father's will) in such a case the next brother was entitled to enjoy the rest of their father's inheritance. but, as he died without issue, henry at last had a good title to the throne, whatever he might have at first. stephen of blois, who succeeded him, was indeed the grandson of the conqueror, by adelicia his daughter, and claimed the throne by a feeble kind of hereditary right; not as being the nearest of the male line, but as the nearest male of the blood royal. the real right was in the empress matilda or maud, the daughter of henry i; the rule of succession being (where women are admitted at all) that the daughter of a son shall be preferred to the son of a daughter. so that stephen was little better than a mere usurper; and the empress maud did not fail to assert her right by the sword: which dispute was attended with various success, and ended at last in a compromise, that stephen should keep the crown, but that henry the son of maud should succeed him; as he afterwards accordingly did. henry, the second of that name, was the undoubted heir of william the conqueror; but he had also another connexion in blood, which endeared him still farther to the english. he was lineally descended from edmund ironside, the last of the saxon race of hereditary kings. for edward the outlaw, the son of edmund ironside, had (besides edgar atheling, who died without issue) a daughter margaret, who was married to malcolm king of scotland; and in her the saxon hereditary right resided. by malcolm she had several children, and among the rest matilda the wife of henry i, who by him had the empress maud, the mother of henry ii. upon which account the saxon line is in our histories frequently said to have been restored in his person: though in reality that right subsisted in the _sons_ of malcolm by queen margaret; king henry's best title being as heir to the conqueror. from henry ii the crown descended to his eldest son richard i, who dying childless, the right vested in his nephew arthur, the son of geoffrey his next brother; but john, the youngest son of king henry, seised the throne; claiming, as appears from his charters, the crown by hereditary right[g]: that is to say, he was next of kin to the deceased king, being his surviving brother; whereas arthur was removed one degree farther, being his brother's son, though by right of representation he stood in the place of his father geoffrey. and however flimzey this title, and those of william rufus and stephen of blois, may appear at this distance to us, after the law of descents hath now been settled for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered, ancestors. nor indeed can we wonder at the number of partizans, who espoused the pretensions of king john in particular; since even in the reign of his father, king henry ii, it was a point undetermined[h], whether, even in common inheritances, the child of an elder brother should succeed to the land in right of representation, or the younger surviving brother in right of proximity of blood. nor is it to this day decided in the collateral succession to the fiefs of the empire, whether the order of the stocks, or the proximity of degree shall take place[i]. however, on the death of arthur and his sister eleanor without issue, a clear and indisputable title vested in henry iii the son of john: and from him to richard the second, a succession of six generations, the crown descended in the true hereditary line. under one of which race of princes[k], we find it declared in parliament, "that the law of the crown of england is, and always hath been, that the children of the king of england, whether born in england, or elsewhere, ought to bear the inheritance after the death of their ancestors. which law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with all the commons, in parliament assembled, do approve and affirm for ever." [footnote g: "_regni angliae; quod nobis jure competit haereditario._" spelm. _hist. r. joh. apud_ wilkins. .] [footnote h: glanv. _l._ . _c._ .] [footnote i: mod. un. hist. xxx. .] [footnote k: stat. edw. iii. st. .] upon richard the second's resignation of the crown, he having no children, the right resulted to the issue of his grandfather edward iii. that king had many children, besides his eldest, edward the black prince of wales, the father of richard ii: but to avoid confusion i shall only mention three; william his second son, who died without issue; lionel duke of clarence, his third son; and john of gant duke of lancaster, his fourth. by the rules of succession therefore the posterity of lionel duke of clarence were entitled to the throne, upon the resignation of king richard; and had accordingly been declared by the king, many years before, the presumptive heirs of the crown; which declaration was also confirmed in parliament[l]. but henry duke of lancaster, the son of john of gant, having then a large army in the kingdom, the pretence of raising which was to recover his patrimony from the king, and to redress the grievances of the subject, it was impossible for any other title to be asserted with any safety; and he became king under the title of henry iv. but, as sir matthew hale remarks[m], though the people unjustly assisted henry iv in his usurpation of the crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror, (which he very much inclined to do[n]) but as a successor, descended by right line of the blood royal; as appears from the rolls of parliament in those times. and in order to this he set up a shew of two titles: the one upon the pretence of being the first of the blood royal in the intire male line, whereas the duke of clarence left only one daughter philippa; from which female branch, by a marriage with edmond mortimer earl of march, the house of york descended: the other, by reviving an exploded rumour, first propagated by john of gant, that edmond earl of lancaster (to whom henry's mother was heiress) was in reality the elder brother of king edward i; though his parents, on account of his personal deformity, had imposed him on the world for the younger: and therefore henry would be intitled to the crown, either as successor to richard ii, in case the intire male line was allowed a preference to the female; or, even prior to that unfortunate prince, if the crown could descend through a female, while an intire male line was existing. [footnote l: sandford's geneal. hist. .] [footnote m: hist. c.l. c. .] [footnote n: seld. tit. hon. . .] however, as in edward the third's time we find the parliament approving and affirming the right of the crown, as before stated, so in the reign of henry iv they actually exerted their right of new-settling the succession to the crown. and this was done by the statute hen. iv. c. . whereby it is enacted, "that the inheritance of the crown and realms of england and france, and all other the king's dominions, shall be _set and remain_[o] in the person of our sovereign lord the king, and in the heirs of his body issuing;" and prince henry is declared heir apparent to the crown, to hold to him and the heirs of his body issuing, with remainder to lord thomas, lord john, and lord humphry, the king's sons, and the heirs of their bodies respectively. which is indeed nothing more than the law would have done before, provided henry the fourth had been a rightful king. it however serves to shew that it was then generally understood, that the king and parliament had a right to new-model and regulate the succession to the crown. and we may observe, with what caution and delicacy the parliament then avoided declaring any sentiment of henry's original title. however sir edward coke more than once expressly declares[p], that at the time of passing this act the right of the crown was in the descent from philippa, daughter and heir of lionel duke of clarence. [footnote o: _soit mys et demoerge._] [footnote p: inst. , .] nevertheless the crown descended regularly from henry iv to his son and grandson henry v and vi; in the latter of whose reigns the house of york asserted their dormant title; and, after imbruing the kingdom in blood and confusion for seven years together, at last established it in the person of edward iv. at his accession to the throne, after a breach of the succession that continued for three descents, and above threescore years, the distinction of a king _de jure_, and a king _de facto_ began to be first taken; in order to indemnify such as had submitted to the late establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful heir. in statute edw. iv. c. . the three henrys are stiled, "late kings of england successively in dede, and not of ryght." and, in all the charters which i have met with of king edward, wherever he has occasion to speak of any of the line of lancaster, he calls them "_nuper de facto, et non de jure, reges angliae_." edward iv left two sons and a daughter; the eldest of which sons, king edward v, enjoyed the regal dignity for a very short time, and was then deposed by richard his unnatural uncle; who immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of bastardy in the children of edward iv, to make a shew of some hereditary title: after which he is generally believed to have murdered his two nephews; upon whose death the right of the crown devolved to their sister elizabeth. the tyrannical reign of king richard iii gave occasion to henry earl of richmond to assert his title to the crown. a title the most remote and unaccountable that was ever set up, and which nothing could have given success to, but the universal detestation of the then usurper richard. for, besides that he claimed under a descent from john of gant, whose title was now exploded, the claim (such as it was) was through john earl of somerset, a bastard son, begotten by john of gant upon catherine swinford. it is true, that, by an act of parliament ric. ii, this son was, with others, legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in wedlock: but still, with an express reservation of the crown, "_excepta dignitate regali_[q]." [footnote q: inst. .] notwithstanding all this, immediately after the battle of bosworth field, he assumed the regal dignity; the right of the crown then being, as sir edward coke expressly declares[r], in elizabeth, eldest daughter of edward iv: and his possession was established by parliament, held the first year of his reign. in the act for which purpose, the parliament seems to have copied the caution of their predecessors in the reign of henry iv; and therefore (as lord bacon the historian of this reign observes) carefully avoided any recognition of henry vii's right, which indeed was none at all; and the king would not have it by way of new law or ordinance, whereby a right might seem to be created and conferred upon him; and therefore a middle way was rather chosen, by way (as the noble historian expresses it) of _establishment_, and that under covert and indifferent words, "that the inheritance of the crown should _rest_, _remain_, and _abide_ in king henry vii and the heirs of his body:" thereby providing for the future, and at the same time acknowleging his present possession; but not determining either way, whether that possession was _de jure_ or _de facto_ merely. however he soon after married elizabeth of york, the undoubted heiress of the conqueror, and thereby gained (as sir edward coke[s] declares) by much his best title to the crown. whereupon the act made in his favour was so much disregarded, that it never was printed in our statute books. [footnote r: inst. .] [footnote s: _ibid._] henry the eighth, the issue of this marriage, succeeded to the crown by clear indisputable hereditary right, and transmitted it to his three children in successive order. but in his reign we at several times find the parliament busy in regulating the succession to the kingdom. and, first, by statute hen. viii. c. . which recites the mischiefs, which have and may ensue by disputed titles, because no perfect and substantial provision hath been made by law concerning the succession; and then enacts, that the crown shall be entailed to his majesty, and the sons or heirs males of his body; and in default of such sons to the lady elizabeth (who is declared to be the king's eldest issue female, in exclusion of the lady mary, on account of her supposed illegitimacy by the divorce of her mother queen catherine) and to the lady elizabeth's heirs of her body; and so on from issue female to issue female, and the heirs of their bodies, by course of inheritance according to their ages, _as the crown of england hath been accustomed and ought to go_, in case where there be heirs female of the same: and in default of issue female, then to the king's right heirs for ever. this single statute is an ample proof of all the four positions we at first set out with. but, upon the king's divorce from ann boleyn, this statute was, with regard to the settlement of the crown, repealed by statute hen. viii. c. . wherein the lady elizabeth is also, as well as the lady mary, bastardized, and the crown settled on the king's children by queen jane seymour, and his future wives; and, in defect of such children, then with this remarkable remainder, to such persons as the king by letters patent, or last will and testament, should limit and appoint the same. a vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative authority, it was therefore indisputably valid. but this power was never carried into execution; for by statute hen. viii. c. . the king's two daughters are legitimated again, and the crown is limited to prince edward by name, after that to the lady mary, and then to the lady elizabeth, and the heirs of their respective bodies; which succession took effect accordingly, being indeed no other than the usual course of the law, with regard to the descent of the crown. but lest there should remain any doubt in the minds of the people, through this jumble of acts for limiting the succession, by statute mar. p. . c. . queen mary's hereditary right to the throne is acknowleged and recognized in these words: "the crown of these realms is most lawfully, justly, and rightly _descended_ and come to the queen's highness that now is, being the very, true, and undoubted heir and inheritrix thereof." and again, upon the queen's marriage with philip of spain, in the statute which settles the preliminaries of that match[t], the hereditary right to the crown is thus asserted and declared: "as touching the right of the queen's inheritance in the realm and dominions of england, the children, whether male or female, shall succeed in them, according to the known laws, statutes, and customs of the same." which determination of the parliament, that the succession _shall_ continue in the usual course, seems tacitly to imply a power of new-modelling and altering it, in case the legislature had thought proper. [footnote t: mar. p. . c. .] on queen elizabeth's accession, her right is recognized in still stronger terms than her sister's; the parliament acknowleging[u], "that the queen's highness is, and in very deed and of most mere right ought to be, by the laws of god, and the laws and statutes of this realm, our most lawful and rightful sovereign liege lady and queen; and that her highness is rightly, lineally, and lawfully descended and come of the blood royal of this realm of england; in and to whose princely person, and to the heirs of her body lawfully to be begotten, after her, the imperial crown and dignity of this realm doth belong." and in the same reign, by statute eliz. c. . we find the right of parliament to direct the succession of the crown asserted in the most explicit words. "if any person shall hold, affirm, or maintain that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of england; or that the queen's majesty, with and by the authority of parliament, is not able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this realm, and the descent, limitation, inheritance, and government thereof;--such person, so holding, affirming, or maintaining, shall during the life of the queen be guilty of high treason; and after her decease shall be guilty of a misdemesnor, and forfeit his goods and chattels." [footnote u: stat. eliz. c. .] on the death of queen elizabeth, without issue, the line of henry viii became extinct. it therefore became necessary to recur to the other issue of henry vii, by elizabeth of york his queen: whose eldest daughter margaret having married james iv king of scotland, king james the sixth of scotland, and of england the first, was the lineal descendant from that alliance. so that in his person, as clearly as in henry viii, centered all the claims of different competitors from the conquest downwards, he being indisputably the lineal heir of the conqueror. and, what is still more remarkable, in his person also centered the right of the saxon monarchs, which had been suspended from the conquest till his accession. for, as was formerly observed, margaret the sister of edgar atheling, the daughter of edward the outlaw, and granddaughter of king edmund ironside, was the person in whom the hereditary right of the saxon kings, supposing it not abolished by the conquest, resided. she married malcolm king of scotland; and henry ii, by a descent from matilda their daughter, is generally called the restorer of the saxon line. but it must be remembered, that malcolm by his saxon queen had sons as well as daughters; and that the royal family of scotland from that time downwards were the offspring of malcolm and margaret. of this royal family king james the first was the direct lineal heir, and therefore united in his person every possible claim by hereditary right to the english, as well as scottish throne, being the heir both of egbert and william the conqueror. and it is no wonder that a prince of more learning than wisdom, who could deduce an hereditary title for more than eight hundred years, should easily be taught by the flatterers of the times to believe there was something divine in this right, and that the finger of providence was visible in it's preservation. whereas, though a wise institution, it was clearly a human institution; and the right inherent in him no natural, but a positive right. and in this and no other light was it taken by the english parliament; who by statute jac. i. c. . did "recognize and acknowlege, that immediately upon the dissolution and decease of elizabeth late queen of england, the imperial crown thereof did by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm." not a word here of any right immediately derived from heaven: which, if it existed any where, must be sought for among the _aborigines_ of the island, the antient britons; among whose princes indeed some have gone to search it for him[w]. [footnote w: elizabeth of york, the mother of queen margaret of scotland, was heiress of the house of mortimer. and mr carte observes, that the house of mortimer, in virtue of it's descent from gladys only sister to lewellin ap jorweth the great, had the true right to the principality of wales. iii. .] but, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing, that when so many human hereditary rights had centered in this king, his son and heir king charles the first should be told by those infamous judges, who pronounced his unparalleled sentence, that he was an elective prince; elected by his people, and therefore accountable to them, in his own proper person, for his conduct. the confusion, instability, and madness, which followed the fatal catastrophe of that pious and unfortunate prince, will be a standing argument in favour of hereditary monarchy to all future ages; as they proved at last to the then deluded people: who, in order to recover that peace and happiness which for twenty years together they had lost, in a solemn parliamentary convention of the states restored the right heir of the crown. and in the proclamation for that purpose, which was drawn up and attended by both houses[x], they declared, "that, according to their duty and allegiance, they did heartily, joyfully, and unanimously acknowlege and proclaim, that immediately upon the decease of our late sovereign lord king charles, the imperial crown of these realms did by inherent birthright and lawful and undoubted succession descend and come to his most excellent majesty charles the second, as being lineally, justly, and lawfully, next heir of the blood royal of this realm: and thereunto they most humbly and faithfully did submit and oblige themselves, their heirs and posterity for ever." [footnote x: com. journ. may, .] thus i think it clearly appears, from the highest authority this nation is acquainted with, that the crown of england hath been ever an hereditary crown; though subject to limitations by parliament. the remainder of this chapter will consist principally of those instances, wherein the parliament has asserted or exercised this right of altering and limiting the succession; a right which, we have seen, was before exercised and asserted in the reigns of henry iv, henry vii, henry viii, queen mary, and queen elizabeth. the first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in the latter end of the reign of king charles the second. it is well known, that the purport of this bill was to have set aside the king's brother and presumptive heir, the duke of york, from the succession, on the score of his being a papist; that it passed the house of commons, but was rejected by the lords; the king having also declared beforehand, that he never would be brought to consent to it. and from this transaction we may collect two things: . that the crown was universally acknowleged to be hereditary; and the inheritance indefeasible unless by parliament: else it had been needless to prefer such a bill. . that the parliament had a power to have defeated the inheritance: else such a bill had been ineffectual. the commons acknowleged the hereditary right then subsisting; and the lords did not dispute the power, but merely the propriety, of an exclusion. however, as the bill took no effect, king james the second succeeded to the throne of his ancestors; and might have enjoyed it during the remainder of his life, but for his own infatuated conduct, which (with other concurring circumstances) brought on the revolution in . the true ground and principle, upon which that memorable event proceeded, was an entirely new case in politics, which had never before happened in our history; the abdication of the reigning monarch, and the vacancy of the throne thereupon. it was not a defeazance of the right of succession, and a new limitation of the crown, by the king and both houses of parliament: it was the act of the nation alone, upon an apprehension that there was no king in being. for in a full assembly of the lords and commons, met in convention upon this apprehended vacancy, both houses[y] came to this resolution; "that king james the second, having endeavoured to subvert the constitution of the kingdom, by breaking the original contract between king and people; and, by the advice of jesuits and other wicked persons, having violated the fundamental laws; and having withdrawn himself out of this kingdom; has abdicated the government, and that the throne is thereby vacant." thus ended at once, by this sudden and unexpected vacancy of the throne, the old line of succession; which from the conquest had lasted above six hundred years, and from the union of the heptarchy in king egbert almost nine hundred. the facts themselves thus appealed to, the king's endeavours to subvert the constitution by breaking the original contract, his violation of the fundamental laws, and his withdrawing himself out of the kingdom, were evident and notorious: and the consequences drawn from these facts (namely, that they amounted to an abdication of the government; which abdication did not affect only the person of the king himself, but also all his heirs, and rendered the throne absolutely and completely vacant) it belonged to our ancestors to determine. for, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to. and that these consequences were fairly deduced from these facts, our ancestors have solemnly determined, in a full parliamentary convention representing the whole society. the reasons upon which they decided may be found at large in the parliamentary proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a speculative point of history. but care must be taken not to carry this enquiry farther, than merely for instruction or amusement. the idea, that the consciences of posterity were concerned in the rectitude of their ancestors' decisions, gave birth to those dangerous political heresies, which so long distracted the state, but at length are all happily extinguished. i therefore rather chuse to consider this great political measure, upon the solid footing of authority, than to reason in it's favour from it's justice, moderation, and expedience: because that might imply a right of dissenting or revolting from it, in case we should think it unjust, oppressive, or inexpedient. whereas, our ancestors having most indisputably a competent jurisdiction to decide this great and important question, and having in fact decided it, it is now become our duty at this distance of time to acquiesce in their determination; being born under that establishment which was built upon this foundation, and obliged by every tie, religious as well as civil, to maintain it. [footnote y: com. journ. feb. .] but, while we rest this fundamental transaction, in point of authority, upon grounds the least liable to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and moderation which naturally arose from it's equity; that, however it might in some respects go beyond the letter of our antient laws, (the reason of which will more fully appear hereafter[z]) it was agreeable to the spirit of our constitution, and the rights of human nature; and that though in other points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect as might have been wished, yet from thence a new aera commenced, in which the bounds of prerogative and liberty have been better defined, the principles of government more thoroughly examined and understood, and the rights of the subject more explicitly guarded by legal provisions, than in any other period of the english history. in particular, it is worthy observation that the convention, in this their judgment, avoided with great wisdom the wild extremes into which the visionary theories of some zealous republicans would have led them. they held that this misconduct of king james amounted to an _endeavour_ to subvert the constitution, and not to an actual subversion, or total dissolution of the government, according to the principles of mr locke[a]: which would have reduced the society almost to a state of nature; would have levelled all distinctions of honour, rank, offices, and property; would have annihilated the sovereign power, and in consequence have repealed all positive laws; and would have left the people at liberty to have erected a new system of state upon a new foundation of polity. they therefore very prudently voted it to amount to no more than an abdication of the government, and a consequent vacancy of the throne; whereby the government was allowed to subsist, though the executive magistrate was gone, and the kingly office to remain, though king james was no longer king. and thus the constitution was kept intire; which upon every sound principle of government must otherwise have fallen to pieces, had so principal and constituent a part as the royal authority been abolished, or even suspended. [footnote z: see chapter .] [footnote a: on gov. p. . c. .] this single postulatum, the vacancy of the throne, being once established, the rest that was then done followed almost of course. for, if the throne be at any time vacant (which may happen by other means besides that of abdication; as if all the bloodroyal should fail, without any successor appointed by parliament;) if, i say, a vacancy by any means whatsoever should happen, the right of disposing of this vacancy seems naturally to result to the lords and commons, the trustees and representatives of the nation. for there are no other hands in which it can so properly be intrusted; and there is a necessity of it's being intrusted somewhere, else the whole frame of government must be dissolved and perish. the lords and commons having therefore determined this main fundamental article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner as they judged the most proper. and this was done by their declaration of february [b], in the following manner: "that william and mary, prince and princess of orange, be, and be declared king and queen, to hold the crown and royal dignity during their lives, and the life of the survivor of them; and that the sole and full exercise of the regal power be only in, and executed by, the said prince of orange, in the names of the said prince and princess, during their joint lives; and after their deceases the said crown and royal dignity to be to the heirs of the body of the said princess; and for default of such issue to the princess anne of denmark and the heirs of her body; and for default of such issue to the heirs of the body of the said prince of orange." [footnote b: com. journ. feb. .] perhaps, upon the principles before established, the convention might (if they pleased) have vested the regal dignity in a family intirely new, and strangers to the royal blood: but they were too well acquainted with the benefits of hereditary succession, and the influence which it has by custom over the minds of the people, to depart any farther from the antient line than temporary necessity and self-preservation required. they therefore settled the crown, first on king william and queen mary, king james's eldest daughter, for their _joint_ lives; then on the survivor of them; and then on the issue of queen mary: upon failure of such issue, it was limited to the princess anne, king james's second daughter, and her issue; and lastly, on failure of that, to the issue of king william, who was the grandson of charles the first, and nephew as well as son in law of king james the second, being the son of mary his only sister. this settlement included all the protestant posterity of king charles i, except such other issue as king james might at any time have, which was totally omitted through fear of a popish succession. and this order of succession took effect accordingly. these three princes therefore, king william, queen mary, and queen anne, did not take the crown by hereditary right or _descent_, but by way of donation or _purchase_, as the lawyers call it; by which they mean any method of acquiring an estate otherwise than by descent. the new settlement did not merely consist in excluding king james, and the person pretended to be prince of wales, and then suffering the crown to descend in the old hereditary chanel: for the usual course of descent was in some instances broken through; and yet the convention still kept it in their eye, and paid a great, though not total, regard to it. let us see how the succession would have stood, if no abdication had happened, and king james had left no other issue than his two daughters queen mary and queen anne. it would have stood thus: queen mary and her issue; queen anne and her issue; king william and his issue. but we may remember, that queen mary was only nominally queen, jointly with her husband king william, who alone had the regal power; and king william was absolutely preferred to queen anne, though his issue was postponed to hers. clearly therefore these princes were successively in possession of the crown by a title different from the usual course of descent. it was towards the end of king william's reign, when all hopes of any surviving issue from any of these princes died with the duke of glocester, that the king and parliament thought it necessary again to exert their power of limiting and appointing the succession, in order to prevent another vacancy of the throne; which must have ensued upon their deaths, as no farther provision was made at the revolution, than for the issue of king william, queen mary, and queen anne. the parliament had previously by the statute of w. & m. st. . c. . enacted, that every person who should be reconciled to, or hold communion with, the see of rome, should profess the popish religion, or should marry a papist, should be excluded and for ever incapable to inherit, possess, or enjoy, the crown; and that in such case the people should be absolved from their allegiance, and the crown should descend to such persons, being protestants, as would have inherited the same, in case the person so reconciled, holding communion, professing, or marrying, were naturally dead. to act therefore consistently with themselves, and at the same time pay as much regard to the old hereditary line as their former resolutions would admit, they turned their eyes on the princess sophia, electress and duchess dowager of hanover, the most accomplished princess of her age[c]. for, upon the impending extinction of the protestant posterity of charles the first, the old law of regal descent directed them to recur to the descendants of james the first; and the princess sophia, being the daughter of elizabeth queen of bohemia, who was the youngest daughter of james the first, was the nearest of the antient blood royal, who was not incapacitated by professing the popish religion. on her therefore, and the heirs of her body, being protestants, the remainder of the crown, expectant on the death of king william and queen anne without issue, was settled by statute & w. iii. c. . and at the same time it was enacted, that whosoever should hereafter come to the possession of the crown, should join in the communion of the church of england as by law established. [footnote c: sandford, in his genealogical history, published _a.d._ , speaking (page ) of the princesses elizabeth, louisa, and sophia, daughters of the queen of bohemia, says, the first was reputed the most learned, the second the greatest artist, and the last one of the most accomplished ladies in europe.] this is the last limitation of the crown that has been made by parliament: and these several actual limitations, from the time of henry iv to the present, do clearly prove the power of the king and parliament to new-model or alter the succession. and indeed it is now again made highly penal to dispute it: for by the statute ann. c. . it is enacted, that if any person maliciously, advisedly, and directly, shall maintain by writing or printing, that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he shall incur the penalties of a praemunire. the princess sophia dying before queen anne, the inheritance thus limited descended on her son and heir king george the first; and, having on the death of the queen taken effect in his person, from him it descended to his late majesty king george the second; and from him to his grandson and heir, our present gracious sovereign, king george the third. hence it is easy to collect, that the title to the crown is at present hereditary, though not quite so absolutely hereditary as formerly; and the common stock or ancestor, from whom the descent must be derived, is also different. formerly the common stock was king egbert; then william the conqueror; afterwards in james the first's time the two common stocks united, and so continued till the vacancy of the throne in : now it is the princess sophia, in whom the inheritance was vested by the new king and parliament. formerly the descent was absolute, and the crown went to the next heir without any restriction: but now, upon the new settlement, the inheritance is conditional, being limited to such heirs only, of the body of the princess sophia, as are protestant members of the church of england, and are married to none but protestants. and in this due medium consists, i apprehend, the true constitutional notion of the right of succession to the imperial crown of these kingdoms. the extremes, between which it steers, are each of them equally destructive of those ends for which societies were formed and are kept on foot. where the magistrate, upon every succession, is elected by the people, and may by the express provision of the laws be deposed (if not punished) by his subjects, this may sound like the perfection of liberty, and look well enough when delineated on paper; but in practice will be ever productive of tumult, contention, and anarchy. and, on the other hand, divine indefeasible hereditary right, when coupled with the doctrine of unlimited passive obedience, is surely of all constitutions the most thoroughly slavish and dreadful. but when such an hereditary right, as our laws have created and vested in the royal stock, is closely interwoven with those liberties, which, we have seen in a former chapter, are equally the inheritance of the subject; this union will form a constitution, in theory the most beautiful of any, in practice the most approved, and, i trust, in duration the most permanent. it was the duty of an expounder of our laws to lay this constitution before the student in it's true and genuine light: it is the duty of every good englishman to understand, to revere, to defend it. chapter the fourth. of the king's royal family. the first and most considerable branch of the king's royal family, regarded by the laws of england, is the queen. the queen of england is either queen _regent_, queen _consort_, or queen _dowager_. the queen _regent_, _regnant_, or _sovereign_, is she who holds the crown in her own right; as the first (and perhaps the second) queen mary, queen elizabeth, and queen anne; and such a one has the same powers, prerogatives, rights, dignities, and duties, as if she had been a king. this was observed in the entrance of the last chapter, and is expressly declared by statute mar. i. st. . c. . but the queen _consort_ is the wife of the reigning king; and she by virtue of her marriage is participant of divers prerogatives above other women[a]. [footnote a: finch. l. .] and, first, she is a public person, exempt and distinct from the king; and not, like other married women, so closely connected as to have lost all legal or separate existence so long as the marriage continues. for the queen is of ability to purchase lands, and to convey them, to make leases, to grant copyholds, and do other acts of ownership, without the concurrence of her lord; which no other married woman can do[b]: a privilege as old as the saxon aera[c]. she is also capable of taking a grant from the king, which no other wife is from her husband; and in this particular she agrees with the _augusta_, or _piissima regina conjux divi imperatoris_ of the roman laws; who, according to justinian[d], was equally capable of making a grant to, and receiving one from, the emperor. the queen of england hath separate courts and officers distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and solicitor general are intitled to a place within the bar of his majesty's courts, together with the king's counsel[e]. she may also sue and be sued alone, without joining her husband. she may also have a separate property in goods as well as lands, and has a right to dispose of them by will. in short, she is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as a married woman[f]. for which the reason given by sir edward coke is this: because the wisdom of the common law would not have the king (whose continual care and study is for the public, and _circa ardua regni_) to be troubled and disquieted on account of his wife's domestic affairs; and therefore it vests in the queen a power of transacting her own concerns, without the intervention of the king, as if she was an unmarried woman. [footnote b: rep. .] [footnote c: seld. _jan. angl._ . .] [footnote d: _cod._ . . .] [footnote e: selden tit. hon. . . .] [footnote f: finch. l. . co. litt. .] the queen hath also many exemptions, and minute prerogatives. for instance: she pays no toll[g]; nor is she liable to any amercement in any court[h]. but in general, unless where the law has expressly declared her exempted, she is upon the same footing with other subjects; being to all intents and purposes the king's subject, and not his equal: in like manner as, in the imperial law, "_augusta legibus soluta non est_[i]." [footnote g: co. litt. .] [footnote h: finch. l. .] [footnote i: _ff._ . . .] the queen hath also some pecuniary advantages, which form her a distinct revenue: as, in the first place, she is intitled to an antient perquisite called queen-gold or _aurum reginae_; which is a royal revenue, belonging to every queen consort during her marriage with the king, and due from every person who hath made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and in consideration of any privileges, grants, licences, pardons, or other matter of royal favour conferred upon him by the king: and it is due in the proportion of one tenth part more, over and above the intire offering or fine made to the king; and becomes an actual debt of record to the queen's majesty by the mere recording the fine[k]. as, if an hundred marks of silver be given to the king for liberty to take in mortmain, or to have a fair, market, park, chase, or free warren; there the queen is intitled to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by the name of queen-gold, or _aurum reginae_[l]. but no such payment is due for any aids or subsidies granted to the king in parliament or convocation; nor for fines imposed by courts on offenders, against their will; nor for voluntary presents to the king, without any consideration moving from him to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown are granted away or diminished[m]. [footnote k: pryn. _aur. reg._ .] [footnote l: rep. . inst. .] [footnote m: _ibid._ pryn. . madox. hist. exch. .] the revenue of our antient queens, before and soon after the conquest, seems to have consisted in certain reservations or rents out of the demesne lands of the crown, which were expressly appropriated to her majesty, distinct from the king. it is frequent in domesday-book, after specifying the rent due to the crown, to add likewise the quantity of gold or other renders reserved to the queen[n]. these were frequently appropriated to particular purposes; to buy wool for her majesty's use[o], to purchase oyl for her lamps[p], or to furnish her attire from head to foot[q], which was frequently very costly, as one single robe in the fifth year of henry ii stood the city of london in upwards of fourscore pounds[r]. a practice somewhat similar to that of the eastern countries, where whole cities and provinces were specifically assigned to purchase particular parts of the queen's apparel[s]. and, for a farther addition to her income, this duty of queen-gold is supposed to have been originally granted; those matters of grace and favour, out of which it arose, being frequently obtained from the crown by the powerful intercession of the queen. there are traces of it's payment, though obscure ones, in the book of domesday and in the great pipe-roll of henry the first[t]. in the reign of henry the second the manner of collecting it appears to have been well understood, and it forms a distinct head in the antient dialogue of the exchequer[u] written in the time of that prince, and usually attributed to gervase of tilbury. from that time downwards it was regularly claimed and enjoyed by all the queen consorts of england till the death of henry viii; though after the accession of the tudor family the collecting of it seems to have been much neglected: and, there being no queen consort afterwards till the accession of james i, a period of near sixty years, it's very nature and quantity became then a matter of doubt: and, being referred by the king to his then chief justices and chief baron, their report of it was so very unfavorable[w], that queen anne (though she claimed it) yet never thought proper to exact it. in , car. i, a time fertile of expedients for raising money upon dormant precedents in our old records (of which ship-money was a fatal instance) the king, at the petition of his queen henrietta maria, issued out his writ for levying it; but afterwards purchased it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome to levy. and when afterwards, at the restoration, by the abolition of the military tenures, and the fines that were consequent upon them, the little that legally remained of this revenue was reduced to almost nothing at all, in vain did mr prynne, by a treatise which does honour to his abilities as a painful and judicious antiquarian, endeavour to excite queen catherine to revive this antiquated claim. [footnote n: _bedefordscire. maner. lestone redd. per annum xxii lib. &c: ad opus reginae ii uncias auri.----herefordscire. in lene, &c, consuetud. ut praepositus manerii veniente domina sua (regina) in maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo._ pryn. append. to _aur. reg._ , .] [footnote o: _causa coadunandi lanam reginae._ domesd. _ibid._] [footnote p: _civitas lundon. pro oleo ad lampad. reginae._ _mag. rot. pip. temp. hen. ii. ibid._] [footnote q: _vicecomes berkescire, xvi l. pro cappa reginae._ (_mag. rot. pip. -- hen. ii. ibid._) _civitas lund. cordubanario reginae xx s._ _mag. rot. hen. ii._ madox hist. exch. .] [footnote r: _pro roba ad opus reginae, quater xx l. & vi s. & viii d._ _mag. rot. hen. ii. ibid._ .] [footnote s: _solere aiunt barbaros reges persarum ac syrorum--uxoribus civitates attribuere, hoc modo; haec civitas mulieri redimiculum praebeat, haec in collum, haec in crines, &c._ _cic. in verrem._ _lib._ . _c._ .] [footnote t: see madox _disceptat. epistolar._ . pryn. _aur. regin._ append. .] [footnote u: _lib._ . _c._ .] [footnote w: mr prynne, with some appearance of reason, insinuates, that their researches were very superficial. _aur. reg._ .] another antient perquisite belonging to the queen consort, mentioned by all our old writers[x], and, therefore only, worthy notice, is this: that on the taking of a whale on the coasts, which is a royal fish, it shall be divided between the king and queen; the head only being the king's property, and the tail of it the queen's. "_de sturgione observetur, quod rex illum habebit integrum: de balena vero sufficit, si rex habeat caput, et regina caudam._" the reason of this whimsical division, as assigned by our antient records[y], was, to furnish the queen's wardrobe with whalebone. [footnote x: bracton, _l._ . _c._ . britton, _c._ . fleta, _l._ . _c._ & .] [footnote y: pryn. _aur. reg._ .] but farther: though the queen is in all respects a subject, yet, in point of the security of her life and person, she is put on the same footing with the king. it is equally treason (by the statute edw. iii.) to compass or imagine the death of our lady the king's companion, as of the king himself: and to violate, or defile, the queen consort, amounts to the same high crime; as well in the person committing the fact, as in the queen herself, if consenting. a law of henry the eighth[z] made it treason also for any woman, who was not a virgin, to marry the king without informing him thereof. but this law was soon after repealed; it trespassing too strongly, as well on natural justice, as female modesty. if however the queen be accused of any species of treason, she shall (whether consort or dowager) be tried by the house of peers, as queen ann boleyn was in hen. viii. [footnote z: stat. hen. viii. c. .] the husband of a queen regnant, as prince george of denmark was to queen anne, is her subject; and may be guilty of high treason against her: but, in the instance of conjugal fidelity, he is not subjected to the same penal restrictions. for which the reason seems to be, that, if a queen consort is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such danger can be consequent on the infidelity of the husband to a queen regnant. a queen _dowager_ is the widow of the king, and as such enjoys most of the privileges belonging to her as queen consort. but it is not high treason to conspire her death; or to violate her chastity, for the same reason as was before alleged, because the succession to the crown is not thereby endangered. yet still, _pro dignitate regali_, no man can marry a queen dowager without special licence from the king, on pain of forfeiting his lands and goods. this sir edward coke[a] tells us was enacted in parliament in hen. iv, though the statute be not in print. but she, though an alien born, shall still be intitled to dower after the king's demise, which no other alien is[b]. a queen dowager, when married again to a subject, doth not lose her regal dignity, as peeresses dowager do their peerage when they marry commoners. for katherine, queen dowager of henry v, though she married a private gentleman, owen ap meredith ap theodore, commonly called owen tudor; yet, by the name of katherine queen of england, maintained an action against the bishop of carlisle. and so the queen of navarre marrying with edmond, brother to king edward the first, maintained an action of dower by the name of queen of navarre[c]. [footnote a: inst. .] [footnote b: co. litt. _b._] [footnote c: inst. .] the prince of wales, or heir apparent to the crown, and also his royal consort, and the princess royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. for, by statute edw. iii, to compass or conspire the death of the former, or to violate the chastity of either of the latter, are as much high treason, as to conspire the death of the king, or violate the chastity of the queen. and this upon the same reason, as was before given; because the prince of wales is next in succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the eldest daughter of the king is also alone inheritable to the crown, in failure of issue male, and therefore more respected by the laws than any of her younger sisters; insomuch that upon this, united with other (feodal) principles, while our military tenures were in force, the king might levy an aid for marrying his eldest daughter, and her only. the heir apparent to the crown is usually made prince of wales and earl of chester, by special creation, and investiture; but, being the king's eldest son, he is by inheritance duke of cornwall, without any new creation[d]. [footnote d: rep. . seld. titl. of hon. . .] the younger sons and daughters of the king, who are not in the immediate line of succession, are little farther regarded by the laws, than to give them precedence before all peers and public officers as well ecclesiastical as temporal. this is done by the statute hen. viii. c. . which enacts that no person, except the king's children, shall presume to sit or have place at the side of the cloth of estate in the parliament chamber; and that certain great officers therein named shall have precedence above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew (which sir edward coke[e] explains to signify grandson or _nepos_) or brother's or sister's son. and in , upon a question referred to all the judges by king george i, it was resolved by the opinion of ten against the other two, that the education and care of all the king's grandchildren while minors, and the care and approbation of their marriages, when grown up, did belong of right to his majesty as king of this realm, during their father's life[f]. and this may suffice for the notice, taken by law, of his majesty's royal family. [footnote e: inst. .] [footnote f: fortesc. al. - .] chapter the fifth. of the councils belonging to the king. the third point of view, in which we are to consider the king, is with regard to his councils. for, in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion of his prerogative, the law hath assigned him a diversity of councils to advise with. . the first of these is the high court of parliament, whereof we have already treated at large. . secondly, the peers of the realm are by their birth hereditary counsellors of the crown, and may be called together by the king to impart their advice in all matters of importance to the realm, either in time of parliament, or, which hath been their principal use, when there is no parliament in being[a]. accordingly bracton[b], speaking of the nobility of his time, says they might properly be called "_consules, a consulendo; reges enim tales sibi associant ad consulendum_." and in our law books[c] it is laid down, that peers are created for two reasons; . _ad consulendum_, . _ad defendendum regem_: for which reasons the law gives them certain great and high privileges; such as freedom from arrests, &c, even when no parliament is sitting: because the law intends, that they are always assisting the king with their counsel for the commonwealth; or keeping the realm in safety by their prowess and valour. [footnote a: co. litt. .] [footnote b: _l._ . _c._ .] [footnote c: rep. . rep. . rep. .] instances of conventions of the peers, to advise the king, have been in former times very frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. sir edward coke[d] gives us an extract of a record, hen. iv, concerning an exchange of lands between the king and the earl of northumberland, wherein the value of each was agreed to be settled by advice of parliament (if any should be called before the feast of st lucia) or otherwise by advice of the grand council (of peers) which the king promises to assemble before the said feast, in case no parliament shall be called. many other instances of this kind of meeting are to be found under our antient kings: though the formal method of convoking them had been so long left off, that when king charles i in issued out writs under the great seal to call a great council of all the peers of england to meet and attend his majesty at york, previous to the meeting of the long parliament, the earl of clarendon[e] mentions it as a new invention, not before heard of; that is, as he explains himself, so old, that it had not been practiced in some hundreds of years. but, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet, in cases of emergency, our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together: as was particularly the case with king james the second, after the landing of the prince of orange; and with the prince of orange himself, before he called that convention parliament, which afterwards called him to the throne. [footnote d: inst. .] [footnote e: hist. b. .] besides this general meeting, it is usually looked upon to be the right of each particular peer of the realm, to demand an audience of the king, and to lay before him, with decency and respect, such matters as he shall judge of importance to the public weal. and therefore, in the reign of edward ii, it was made an article of impeachment in parliament against the two hugh spencers, father and son, for which they were banished the kingdom, "that they by their evil covin would not suffer the great men of the realm, the king's good counsellors, to speak with the king, or to come near him; but only in the presence and hearing of the said hugh the father and hugh the son, or one of them, and at their will, and according to such things as pleased them[f]." [footnote f: inst. .] . a third council belonging the king, are, according to sir edward coke[g], his judges of the courts of law, for law matters. and this appears frequently in our statutes, particularly ed. iii. c. . and in other books of law. so that when the king's council is mentioned generally, it must be defined, particularized, and understood, _secundum subjectam materiam_; and, if the subject be of a legal nature, then by the king's council is understood his council for matters of law; namely, his judges. therefore when by statute ric. ii. c. . it was made a high offence to import into this kingdom any papal bulles, or other processes from rome; and it was enacted, that the offenders should be attached by their bodies, and brought before the king and his _council_ to answer for such offence; here, by the expression of king's _council_, were understood the king's judges of his courts of justice, the subject matter being legal: this being the general way of interpreting the word, _council_[h]. [footnote g: inst. .] [footnote h: inst. .] . but the principal council belonging to the king is his privy council, which is generally called, by way of eminence, _the council_. and this, according to sir edward coke's description of it[i], is a noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council, in the king's court or palace. the king's will is the sole constituent of a privy counsellor; and this also regulates their number, which of antient time was twelve or thereabouts. afterwards it increased to so large a number, that it was found inconvenient for secresy and dispatch; and therefore king charles the second in limited it to thirty: whereof fifteen were to be the principal officers of state, and those to be counsellors, _virtute officii_; and the other fifteen were composed of ten lords and five commoners of the king's choosing[k]. but since that time the number has been much augmented, and now continues indefinite. at the same time also, the antient office of lord president of the council was revived in the person of anthony earl of shaftsbury; an officer, that by the statute of hen. viii. c. . has precedence next after the lord chancellor and lord treasurer. [footnote i: inst. .] [footnote k: temple's mem. part .] privy counsellors are _made_ by the king's nomination, without either patent or grant; and, on taking the necessary oaths, they become immediately privy counsellors during the life of the king that chooses them, but subject to removal at his discretion. the _duty_ of a privy counsellor appears from the oath of office[l], which consists of seven articles: . to advise the king according to the best of his cunning and discretion. . to advise for the king's honour and good of the public, without partiality through affection, love, meed, doubt, or dread. . to keep the king's counsel secret. . to avoid corruption. . to help and strengthen the execution of what shall be there resolved. . to withstand all persons who would attempt the contrary. and, lastly, in general, . to observe, keep, and do all that a good and true counsellor ought to do to his sovereign lord. [footnote l: inst. .] the _power_ of the privy council is to enquire into all offences against the government, and to commit the offenders into custody, in order to take their trial in some of the courts of law. but their jurisdiction is only to enquire, and not to punish: and the persons committed by them are entitled to their _habeas corpus_ by statute car. i. c. . as much as if committed by an ordinary justice of the peace. and, by the same statute, the court of starchamber, and the court of requests, both of which consisted of privy counsellors, were dissolved; and it was declared illegal for them to take cognizance of any matter of property, belonging to the subjects of this kingdom. but, in plantation or admiralty causes, which arise out of the jurisdiction of this kingdom, and in matters of lunacy and ideocy (being a special flower of the prerogative) with regard to these, although they may eventually involve questions of extensive property, the privy council continues to have cognizance, being the court of appeal in such causes: or, rather, the appeal lies to the king's majesty himself, assisted by his privy council. as to the _qualifications_ of members to sit this board: any natural born subject of england is capable of being a member of the privy council; taking the proper oaths for security of the government, and the test for security of the church. but, in order to prevent any persons under foreign attachments from insinuating themselves into this important trust, as happened in the reign of king william in many instances, it is enacted by the act of settlement[m], that no person born out of the dominions of the crown of england, unless born of english parents, even though naturalized by parliament, shall be capable of being of the privy council. [footnote m: stat. . & w. iii. c. .] the _privileges_ of privy counsellors, as such, consist principally in the security which the law has given them against attempts and conspiracies to destroy their lives. for, by statute hen. vii. c. . if any of the king's servants of his houshold, conspire or imagine to take away the life of a privy counsellor, it is felony, though nothing be done upon it. and the reason of making this statute, sir edward coke[n] tells us, was because such servants have greater and readier means, either by night or by day, to destroy such as be of great authority, and near about the king: and such a conspiracy was, just before this parliament, made by some of king henry the seventh's houshold servants, and great mischief was like to have ensued thereupon. this extends only to the king's menial servants. but the statute ann. c. . goes farther, and enacts, that _any persons_ that shall unlawfully attempt to kill, or shall unlawfully assault, and strike, or wound, any privy counsellor in the execution of his office, shall be felons, and suffer death as such. this statute was made upon the daring attempt of the sieur guiscard, who stabbed mr harley, afterwards earl of oxford, with a penknife, when under examination for high crimes in a committee of the privy council. [footnote n: inst. .] the _dissolution_ of the privy council depends upon the king's pleasure; and he may, whenever he thinks proper, discharge any particular member, or the whole of it, and appoint another. by the common law also it was dissolved _ipso facto_ by the king's demise; as deriving all it's authority from him. but now, to prevent the inconveniences of having no council in being at the accession of a new prince, it is enacted by statute ann. c. . that the privy council shall continue for six months after the demise of the crown, unless sooner determined by the successor. chapter the sixth. of the king's duties. i proceed next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal[a]. and these reciprocal duties are what, i apprehend, were meant by the convention in , when they declared that king james had broken the _original contract_ between king and people. but however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly; and to reduce that contract to a plain certainty. so that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since the year . [footnote a: rep. .] the principal duty of the king is, to govern his people according to law. _nec regibus infinita aut libera potestas_, was the constitution of our german ancestors on the continent[b]. and this is not only consonant to the principles of nature, of liberty, of reason, and of society, but has always been esteemed an express part of the common law of england, even when prerogative was at the highest. "the king," saith bracton[c], who wrote under henry iii, "ought not to be subject to man, but to god, and to the law; for the law maketh the king. let the king therefore render to the law, what the law has invested in him with regard to others; dominion, and power: for he is not truly king, where will and pleasure rules, and not the law." and again[d]; "the king also hath a superior, namely god, and also the law, by which he was made a king." thus bracton: and fortescue also[e], having first well distinguished between a monarchy absolutely and despotically regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises from mutual consent; (of which last species he asserts the government of england to be) immediately lays it down as a principle, that "the king of england must rule his people according to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the observance and keeping of his own laws." but, to obviate all doubts and difficulties concerning this matter, it is expressly declared by statute & w. iii. c. . that "the laws of england are the birthright of the people thereof; and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws; and all their officers and ministers ought to serve them respectively according to the same: and therefore all the laws and statutes of this realm, for securing the established religion, and the rights and liberties of the people thereof, and all other laws and statutes of the same now in force, are by his majesty, by and with the advice and consent of the lords spiritual and temporal and commons, and by authority of the same, ratified and confirmed accordingly." [footnote b: _tac. de m.g._ _c._ .] [footnote c: _l._ . _c._ .] [footnote d: _l._ . _c._ . §. .] [footnote e: _c._ . & .] and, as to the terms of the original contract between king and people, these i apprehend to be now couched in the coronation oath, which by the statute w. & m. st. . c. . is to be administred to every king and queen, who shall succeed to the imperial crown of these realms, by one of the archbishops or bishops of the realm, in the presence of all the people; who on their parts do reciprocally take the oath of allegiance to the crown. this coronation oath is conceived in the following terms: "_the archbishop or bishop shall say_, will you solemnly promise and swear to govern the people of this kingdom of england, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same?--_the king or queen shall say_, i solemnly promise so to do. "_archbishop or bishop._ will you to your power cause law and justice, in mercy, to be executed in all your judgments?--_king or queen._ i will. "_archbishop or bishop._ will you to the utmost of your power maintain the laws of god, the true profession of the gospel, and the protestant reformed religion established by the law? and will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?--_king or queen._ all this i promise to do. "_after this the king or queen, laying his or her hand upon the holy gospels, shall say_, the things which i have here before promised i will perform and keep: so help me god. _and then shall kiss the book._" this is the form of the coronation oath, as it is now prescribed by our laws: the principal articles of which appear to be at least as antient as the mirror of justices[f], and even as the time of bracton[g]: but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself had been framed in doubtful words and expressions, with relation to antient laws and constitutions at this time unknown[h]. however, in what form soever it be conceived, this is most indisputably a fundamental and original express contract; though doubtless the duty of protection is impliedly as much incumbent on the sovereign before coronation as after: in the same manner as allegiance to the king becomes the duty of the subject immediately on the descent of the crown, before he has taken the oath of allegiance, or whether he ever takes it at all. this reciprocal duty of the subject will be considered in it's proper place. at present we are only to observe, that in the king's part of this original contract are expressed all the duties that a monarch can owe to his people; viz. to govern according to law: to execute judgment in mercy: and to maintain the established religion. [footnote f: _cap._ . §. .] [footnote g: _l._ . _tr._ . _c._ .] [footnote h: in the old folio abridgment of the statutes, printed by lettou and machlinia in the reign of edward iv, (_penes me_) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, i will here transcribe. _ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de seynt esglise grauntez auncienment dez droitez roys christiens dengletere, et quil gardera toutez sez terrez honoures et dignitees droiturelx et franks del coron du roialme dengletere en tout maner dentierte sanz null maner damenusement, et lez droitez dispergez dilapidez ou perduz de la corone a soun poiair reappeller en launcien estate, et quil gardera le peas de seynt esglise et al clergie et al people de bon accorde, et quil face faire en toutez sez jugementez owel et droit justice oue discrecion et misericorde, et quil grauntera a tenure lez leyes et custumez du roialme, et a soun poiair lez face garder et affermer que lez gentez du people avont faitez et esliez, et les malveys leyz et custumes de tout oustera, et ferme peas et establie al people de soun roialme en ceo garde esgardera a soun poiair: come dieu luy aide._ _tit. sacramentum regis. fol. m. ij._] chapter the seventh. of the king's prerogative. it was observed in a former chapter[a], that one of the principal bulwarks of civil liberty, or (in other words) of the british constitution, was the limitation of the king's prerogative by bounds so certain and notorious, that it is impossible he should ever exceed them, without the consent of the people, on the one hand; or without, on the other, a violation of that original contract, which in all states impliedly, and in ours most expressly, subsists between the prince and the subject. it will now be our business to consider this prerogative minutely; to demonstrate it's necessity in general; and to mark out in the most important instances it's particular extent and restrictions: from which considerations this conclusion will evidently follow, that the powers which are vested in the crown by the laws of england, are necessary for the support of society; and do not intrench any farther on our _natural_ liberties, than is expedient for the maintenance of our _civil_. [footnote a: chap. . page .] there cannot be a stronger proof of that genuine freedom, which is the boast of this age and country, than the power of discussing and examining, with decency and respect, the limits of the king's prerogative. a topic, that in some former ages was thought too delicate and sacred to be profaned by the pen of a subject. it was ranked among the _arcana imperii_; and, like the mysteries of the _bona dea_, was not suffered to be pried into by any but such as were initiated in it's service: because perhaps the exertion of the one, like the solemnities of the other, would not bear the inspexion of a rational and sober enquiry. the glorious queen elizabeth herself made no scruple to direct her parliaments to abstain from discoursing of matters of state[b]; and it was the constant language of this favorite princess and her ministers, that even that august assembly "ought not to deal, to judge, or to meddle, with her majesty's prerogative royal[c]." and her successor, king james the first, who had imbibed high notions of the divinity of regal sway, more than once laid it down in his speeches, that "as it is atheism and blasphemy in a creature to dispute what the deity may do, so it is presumption and sedition in a subject to dispute what a king may do in the height of his power: good christians, he adds, will be content with god's will, revealed in his word; and good subjects will rest in the king's will, revealed in _his_ law[d]." [footnote b: dewes. .] [footnote c: _ibid._ .] [footnote d: king james's works. , .] but, whatever might be the sentiments of some of our princes, this was never the language of our antient constitution and laws. the limitation of the regal authority was a first and essential principle in all the gothic systems of government established in europe; though gradually driven out and overborne, by violence and chicane, in most of the kingdoms on the continent. we have seen, in the preceding chapter, the sentiments of bracton and fortescue, at the distance of two centuries from each other. and sir henry finch, under charles the first, after the lapse of two centuries more, though he lays down the law of prerogative in very strong and emphatical terms, yet qualifies it with a general restriction, in regard to the liberties of the people. "the king hath a prerogative in all things, that are not injurious to the subject; for in them all it must be remembered, that the king's prerogative stretcheth not to the doing of any wrong[e]." _nihil enim aliud potest rex, nisi id solum quod de jure potest_[f]. and here it may be some satisfaction to remark, how widely the civil law differs from our own, with regard to the authority of the laws over the prince, or (as a civilian would rather have expressed it) the authority of the prince over the laws. it is a maxim of the english law, as we have seen from bracton, that "_rex debet esse sub lege, quia lex facit regem_:" the imperial law will tell us, that "_in omnibus, imperatoris excipitur fortuna; cui ipsas leges deus subjecit_[g]." we shall not long hesitate to which of them to give the preference, as most conducive to those ends for which societies were framed, and are kept together; especially as the roman lawyers themselves seem to be sensible of the unreasonableness of their own constitution. "_decet tamen principem_," says paulus, "_servare leges, quibus ipse solutus est_[h]." this is at once laying down the principle of despotic power, and at the same time acknowleging it's absurdity. [footnote e: finch. l. , .] [footnote f: bract. _l._ . _tr._ . _c._ .] [footnote g: _nov._ . §. .] [footnote h: _ff._ . . .] by the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. it signifies, in it's etymology, (from _prae_ and _rogo_) something that is required or demanded before, or in preference to, all others. and hence it follows, that it must be in it's nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects: for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer. and therefore finch[i] lays it down as a maxim, that the prerogative is that law in case of the king, which is law in no case of the subject. [footnote i: finch. l. .] prerogatives are either _direct_ or _incidental_. the _direct_ are such positive substantial parts of the royal character and authority, as are rooted in and spring from the king's political person, considered merely by itself, without reference to any other extrinsic circumstance; as, the right of sending embassadors, of creating peers, and of making war or peace. but such prerogatives as are _incidental_ bear always a relation to something else, distinct from the king's person; and are indeed only exceptions, in favour of the crown, to those general rules that are established for the rest of the community: such as, that no costs shall be recovered against the king; that the king can never be a joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. these, and an infinite number of other instances, will better be understood, when we come regularly to consider the rules themselves, to which these incidental prerogatives are exceptions. and therefore we will at present only dwell upon the king's substantive or direct prerogatives. these substantive or direct prerogatives may again be divided into three kinds: being such as regard, first, the king's royal _character_; secondly, his royal _authority_; and, lastly, his royal _income_. these are necessary, to secure reverence to his person, obedience to his commands, and an affluent supply for the ordinary expenses of government; without all of which it is impossible to maintain the executive power in due independence and vigour. yet, in every branch of this large and extensive dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb it from trampling on those liberties, which it was meant to secure and establish. the enormous weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction among all the inferior movements: but, when balanced and bridled (as with us) by it's proper counterpoise, timely and judiciously applied, it's operations are then equable and regular, it invigorates the whole machine, and enables every part to answer the end of it's construction. in the present chapter we shall only consider the two first of these divisions, which relate to the king's political _character_ and _authority_; or, in other words, his _dignity_ and regal _power_; to which last the name of prerogative is frequently narrowed and confined. the other division, which forms the royal _revenue_, will require a distinct examination; according to the known distribution of the feodal writers, who distinguish the royal prerogatives into the _majora_ and _minora regalia_, in the latter of which classes the rights of the revenue are ranked. for, to use their own words, "_majora regalia imperii praeeminentiam spectant; minora vero ad commodum pecuniarium immediate attinent; et haec proprie fiscalia sunt, et ad jus fisci pertinent_[k]." [footnote k: _peregrin. de jure fisc._ _l._ . _c._ i. _num._ .] first, then, of the royal dignity. under every monarchical establishment, it is necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. for, though a philosophical mind will consider the royal person merely as one man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand, yet the mass of mankind will be apt to grow insolent and refractory, if taught to consider their prince as a man of no greater perfection than themselves. the law therefore ascribes to the king, in his high political character, not only large powers and emoluments which form his prerogative and revenue, but likewise certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. this is what i understand by the royal dignity, the several branches of which we will now proceed to examine. i. and, first, the law ascribes to the king the attribute of _sovereignty_, or pre-eminence. "_rex est vicarius_," says bracton[l], "_et minister dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi tantum sub deo._" he is said to have _imperial_ dignity, and in charters before the conquest is frequently stiled _basileus_ and _imperator_, the titles respectively assumed by the emperors of the east and west[m]. his realm is declared to be an _empire_, and his crown imperial, by many acts of parliament, particularly the statutes hen. viii. c. . and hen. viii. c. ; which at the same time declare the king to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man. formerly there prevailed a ridiculous notion, propagated by the german and italian civilians, that an emperor could do many things which a king could not, (as the creation of notaries and the like) and that all kings were in some degree subordinate and subject to the emperor of germany or rome. the meaning therefore of the legislature, when it uses these terms of _empire_ and _imperial_, and applies them to the realm of england, is only to assert that our king is equally sovereign and independent within these his dominions, as any emperor is in his empire; and owes no kind of subjection to any other potentate upon earth. hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. for all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who, says finch[n], shall command the king? hence it is likewise, that by law the person of the king is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. if any foreign jurisdiction had this power, as was formerly claimed by the pope, the independence of the kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency of one of the constituent parts of the sovereign legislative power. [footnote l: _l._ . _c._ .] [footnote m: seld. tit. of hon. . .] [footnote n: finch. l. .] are then, it may be asked, the subjects of england totally destitute of remedy, in case the crown should invade their rights, either by private injuries, or public oppressions? to this we may answer, that the law has provided a remedy in both cases. and, first, as to private injuries; if any person has, in point of property, a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion[o]. and this is entirely consonant to what is laid down by the writers on natural law. "a subject, says puffendorf[p], so long as he continues a subject, hath no way to _oblige_ his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. and, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws." for the end of such action is not to _compel_ the prince to observe the contract, but to _persuade_ him. and, as to personal wrongs; it is well observed by mr locke[q], "the harm which the sovereign can do in his own person not being likely to happen often, nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the body of the people, (should any prince have so much weakness and ill nature as to endeavour to do it)--the inconveniency therefore of some particular mischiefs, that may happen sometimes, when a heady prince comes to the throne, are well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being thus set out of the reach of danger." [footnote o: finch. l. .] [footnote p: law of n. and n. l. . c. .] [footnote q: on gov. p. . §. .] next, as to cases of ordinary public oppression, where the vitals of the constitution are not attacked, the law hath also assigned a remedy. for, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. the constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. but it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress. for, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals of government, they are cases which the law will not, out of decency, suppose; being incapable of distrusting those, whom it has invested with any part of the supreme power; since such distrust would render the exercise of that power precarious and impracticable. for, whereever [transcriber's note: wherever] the law expresses it's distrust of abuse of power, it always vests a superior coercive authority in some other hand to correct it; the very notion of which destroys the idea of sovereignty. if therefore (for example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the king, or each other, or if the king had a right to animadvert on either of the houses, that branch of the legislature, so subject to animadversion, would instantly cease to be part of the supreme power; the ballance of the constitution would be overturned; and that branch or branches, in which this jurisdiction resided, would be completely sovereign. the supposition of _law_ therefore is, that neither the king nor either house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law feels itself incapable of furnishing any adequate remedy. for which reason all oppressions, which may happen to spring from any branch of the sovereign power, must necessarily be out of the reach of any _stated rule_, or _express legal_ provision: but, if ever they unfortunately happen, the prudence of the times must provide new remedies upon new emergencies. indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. and therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed. when king james the second invaded the fundamental constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. and so far as this precedent leads, and no farther, we may now be allowed to lay down the _law_ of redress against public oppression. if therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an abdication, and the throne would be thereby vacant. but it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. in these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish. ii. besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute _perfection_. the king can do no wrong. which antient and fundamental maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but means only two things. first, that whatever is exceptionable in the conduct of public affairs is not to be imputed to the king, nor is he answerable for it personally to his people: for this doctrine would totally destroy that constitutional independence of the crown, which is necessary for the balance of power, in our free and active, and therefore compounded, constitution. and, secondly, it means that the prerogative of the crown extends not to do any injury: it is created for the benefit of the people, and therefore cannot be exerted to their prejudice[r]. [footnote r: plowd. .] the king, moreover, is not only incapable of _doing_ wrong, but even of _thinking_ wrong: he can never mean to do an improper thing: in him is no folly or weakness. and therefore, if the crown should be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise prejudicial to the commonwealth, or a private person, the law will not suppose the king to have meant either an unwise or an injurious action, but declares that the king was deceived in his grant; and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either by or upon those agents, whom the crown has thought proper to employ. for the law will not cast an imputation on that magistrate whom it entrusts with the executive power, as if he was capable of intentionally disregarding his trust: but attributes to mere imposition (to which the most perfect of sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will of the prince, might lessen him in the eyes of his subjects. yet still, notwithstanding this personal perfection, which the law attributes to the sovereign, the constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament; each of which, in it's turn, hath exerted the right of remonstrating and complaining to the king even of those acts of royalty, which are most properly and personally his own; such as messages signed by himself, and speeches delivered from the throne. and yet, such is the reverence which is paid to the royal person, that though the two houses have an undoubted right to consider these acts of state in any light whatever, and accordingly treat them in their addresses as personally proceeding from the prince, yet, among themselves, (to preserve the more perfect decency, and for the greater freedom of debate) they usually suppose them to flow from the advice of the administration. but the privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through the medium of his reputed advisers) belongs to no individual, but is confined to those august assemblies: and there too the objections must be proposed with the utmost respect and deference. one member was sent to the tower[s], for suggesting that his majesty's answer to the address of the commons contained "high words, to fright the members out of their duty;" and another[t], for saying that a part of the king's speech "seemed rather to be calculated for the meridian of germany than great britain." [footnote s: com. journ. nov. .] [footnote t: com. journ. dec. .] in farther pursuance of this principle, the law also determines that in the king can be no negligence, or _laches_, and therefore no delay will bar his right. _nullum tempus occurrit regi_ is the standing maxim upon all occasions: for the law intends that the king is always busied for the public good, and therefore has not leisure to assert his right within the times limited to subjects[u]. in the king also can be no stain or corruption of blood: for if the heir to the crown were attainted of treason or felony, and afterwards the crown should descend to him, this would purge the attainder _ipso facto_[w]. and therefore when henry vii, who as earl of richmond stood attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this attainder; because, as lord bacon in his history of that prince informs us, it was agreed that the assumption of the crown had at once purged all attainders. neither can the king in judgment of law, as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament are good, though he has not in his natural capacity attained the legal age of twenty one[x]. by a statute indeed, hen. viii. c. . power was given to future kings to rescind and revoke all acts of parliament that should be made while they were under the age of twenty four: but this was repealed by the statute edw. vi. c. . so far as related to that prince; and both statutes are declared to be determined by geo. ii. c. . it hath also been usually thought prudent, when the heir apparent has been very young, to appoint a protector, guardian, or regent, for a limited time: but the very necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the common law, that in the king is no minority; and therefore he hath no legal guardian[y]. [footnote u: finch. l. . co. litt. _b._] [footnote w: finch. l. .] [footnote x: co. litt. .] [footnote y: the methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that from thence alone it may be collected that his office is unknown to the common law; and therefore (as sir edward coke says, inst. .) the surest way is to have him made by authority of the great council in parliament. the earl of pembroke by his own authority assumed, in very troublesome times, the regency of henry iii, who was then only nine years old; but was declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration of the government at twenty. a guardian and council of regency were named for edward iii, by the parliament which deposed his father; the young king being then fifteen, and not assuming the government till three years after. when richard ii succeeded at the age of eleven, the duke of lancaster took upon him the management of the kingdom, till the parliament met, which appointed a nominal council to assist him. henry v on his death-bed named a regent and a guardian for his infant son henry vi, then nine months old: but the parliament altered his disposition, and appointed a protector and council, with a special limited authority. both these princes remained in a state of pupillage till the age of twenty three. edward v, at the age of thirteen, was recommended by his father to the care of the duke of glocester; who was declared protector by the privy council. the statutes hen. viii. c. . and hen. viii. c. . provided, that the successor, if a male and under eighteen, or if a female and under sixteen, should be till such age in the governance of his or her natural mother, (if approved by the king) and such other counsellors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen executors to have the government of his son, edward vi, and the kingdom; which executors elected the earl of hertford protector. the statute geo. ii. c. . in case the crown should descend to any of the children of frederick late prince of wales under the age of eighteen, appoints the princess dowager;--and that of geo. iii. c. . in case of a like descent to any of his present majesty's children, empowers the king to name either the queen, the princess dowager, or any descendant of king george ii residing in this kingdom;--to be guardian and regent, till the successor attains such age, assisted by a council of regency: the powers of them all being expressly defined and set down in the several acts.] iii. a third attribute of the king's majesty is his _perpetuity_. the law ascribes to him, in his political capacity, an absolute immortality. the king never dies. henry, edward, or george may die; but the king survives them all. for immediately upon the decease of the reigning prince in his natural capacity, his kingship or imperial dignity, by act of law, without any _interregnum_ or interval, is vested at once in his heir; who is, _eo instanti_, king to all intents and purposes. and so tender is the law of supposing even a possibility of his death, that his natural dissolution is generally called his _demise_; _dimissio regis, vel coronae_: an expression which signifies merely a transfer of property; for, as is observed in plowden[z], when we say the demise of the crown, we mean only that in consequence of the disunion of the king's body natural from his body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains perpetual. thus too, when edward the fourth, in the tenth year of his reign, was driven from his throne for a few months by the house of lancaster, this temporary transfer of his dignity was denominated his _demise_; and all process was held to be discontinued, as upon a natural death of the king[a]. [footnote z: plowd. . .] [footnote a: m. hen. vi. pl. - .] we are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. this is wisely placed in a single hand by the british constitution, for the sake of unanimity, strength and dispatch. were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than the exigencies of state will afford. the king of england is therefore not only the chief, but properly the sole, magistrate of the nation; all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the roman state, all the powers of the antient magistracy of the commonwealth were concentred in the new emperor; so that, as gravina[b] expresses it, "_in ejus unius persona veteris reipublicae vis atque majestas per cumulatas magistratuum potestates exprimebatur_." [footnote b: _orig._ . §. .] after what has been premised in this chapter, i shall not (i trust) be considered as an advocate for arbitrary power, when i lay it down as a principle, that in the exertion of lawful prerogative, the king is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. he may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offences he pleases: unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go and no farther. for otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where it's jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: i say, in the _ordinary_ course of law; for i do not now speak of those _extraordinary_ recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. and yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and of national resistance by the people, to be much misunderstood and perverted by the advocates for slavery on the one hand, and the demagogues of faction on the other. the former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our lawbooks, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out beforehand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. on the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. a doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. for civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how far he himself shall obey. in the exertion therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. and yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account. for prerogative consisting (as mr locke[c] has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner. thus the king may make a treaty with a foreign state, which shall irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments have pursued those ministers, by whose agency or advice they were concluded. [footnote c: on gov. . §. .] the prerogatives of the crown (in the sense under which we are now considering them) respect either this nation's intercourse with foreign nations, or it's own domestic government and civil polity. with regard to foreign concerns, the king is the delegate or representative of his people. it is impossible that the individuals of a state, in their collective capacity, can transact the affairs of that state with another community equally numerous as themselves. unanimity must be wanting to their measures, and strength to the execution of their counsels. in the king therefore, as in a center, all the rays of his people are united, and form by that union a consistency, splendor, and power, that make him feared and respected by foreign potentates; who would scruple to enter into any engagements, that must afterwards be revised and ratified by a popular assembly. what is done by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king's concurrence is the act only of private men. and so far is this point carried by our law, that it hath been held[d], that should all the subjects of england make war with a king in league with the king of england, without the royal assent, such war is no breach of the league. and, by the statute hen. v. c. . any subject committing acts of hostility upon any nation in league with the king, was declared to be guilty of high treason: and, though that act was repealed by the statute hen. vi. c. . so far as relates to the making this offence high treason, yet still it remains a very great offence against the law of nations, and punishable by our laws, either capitally or otherwise, according to the circumstances of the case. [footnote d: inst. .] i. the king therefore, considered as the representative of his people, has the sole power of sending embassadors to foreign states, and receiving embassadors at home. this may lead us into a short enquiry, how far the municipal laws of england intermeddle with or protect the rights of these messengers from one potentate to another, whom we call embassadors. the rights, the powers, the duties, and the privileges of embassadors are determined by the law of nature and nations, and not by any municipal constitutions. for, as they represent the persons of their respective masters, who owe no subjection to any laws but those of their own country, their actions are not subject to the control of the private law of that state, wherein they are appointed to reside. he that is subject to the coercion of laws is necessarily dependent on that power by whom those laws were made: but an embassador ought to be independent of every power, except that by which he is sent; and of consequence ought not to be subject to the mere municipal laws of that nation, wherein he is to exercise his functions. if he grossly offends, or makes an ill use of his character, he may be sent home and accused before his master[e]; who is bound either to do justice upon him, or avow himself the accomplice of his crimes[f]. but there is great dispute among the writers on the laws of nations, whether this exemption of embassadors extends to all crimes, as well natural as positive; or whether it only extends to such as are _mala prohibita_, as coining, and not to those that are _mala in se_, as murder[g]. our law seems to have formerly taken in the restriction, as well as the general exemption. for it has been held, both by our common lawyers and civilians[h], that an embassador is privileged by the law of nature and nations; and yet, if he commits any offence against the law of reason and nature, he shall lose his privilege[i]: and that therefore, if an embassador conspires the death of the king in whose land he is, he may be condemned and executed for treason; but if he commits any other species of treason, it is otherwise, and he must be sent to his own kingdom[k]. and these positions seem to be built upon good appearance of reason. for since, as we have formerly shewn, all municipal laws act in subordination to the primary law of nature, and, where they annex a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this natural, universal rule of justice embassadors, as well as other men, are subject in all countries; and of consequence it is reasonable that wherever they transgress it, there they shall be liable to make atonement[l]. but, however these principles might formerly obtain, the general practice of europe seems now to have adopted the sentiments of the learned grotius, that the security of embassadors is of more importance than the punishment of a particular crime[m]. and therefore few, if any, examples have happened within a century past, where an embassador has been punished for any offence, however atrocious in it's nature. [footnote e: as was done with count gyllenberg the swedish minister to great britain, _a.d._ .] [footnote f: sp. l. . .] [footnote g: van leeuwen _in ff._ . . . barbeyrac's puff. l. . c. . §. . & . van bynkershoek _de foro legator._ c. , , .] [footnote h: roll. rep. . bulstr. .] [footnote i: inst. .] [footnote k: roll. rep. .] [footnote l: foster's reports. .] [footnote m: _securitas legatorum utilitati quae ex poena est praeponderat._ _de jur. b. & p._ . . . .] in respect to civil suits, all the foreign jurists agree, that neither an embassador, nor any of his train or _comites_, can be prosecuted for any debt or contract in the courts of that kingdom wherein he is sent to reside. yet sir edward coke maintains, that, if an embassador make a contract which is good _jure gentium_, he shall answer for it here[n]. and the truth is, we find no traces in our lawbooks of allowing any privilege to embassadors or their domestics, even in civil suits, previous to the reign of queen anne; when an embassador from peter the great, czar of muscovy, was actually arrested and taken out of his coach in london, in , for debts which he had there contracted. this the czar resented very highly, and demanded (we are told) that the officers who made the arrest should be punished with death. but the queen (to the amazement of that despotic court) directed her minister to inform him, "that the law of england had not yet protected embassadors from the payment of their lawful debts; that therefore the arrest was no offence by the laws; and that she could inflict no punishment upon any, the meanest, of her subjects, unless warranted by the law of the land[o]." to satisfy however the clamours of the foreign ministers (who made it a common cause) as well as to appease the wrath of peter[p], a new statute was enacted by parliament[q], reciting the arrest which had been made, "in contempt of the protection granted by her majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which embassadors and other public ministers have at all times been thereby possessed of, and ought to be kept sacred and inviolable:" wherefore it enacts, that for the future all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distreined or seised, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. but it is expressly provided, that no trader, within the description of the bankrupt laws, who shall be in the service of any embassador, shall be privileged or protected by this act; nor shall any one be punished for arresting an embassador's servant, unless his name be registred with the secretary of state, and by him transmitted to the sheriffs of london and middlesex. exceptions, that are strictly conformable to the rights of embassadors[r], as observed in the most civilized countries. and, in consequence of this statute, thus enforcing the law of nations, these privileges are now usually allowed in the courts of common law[s]. [footnote n: inst. .] [footnote o: mod. un. hist. xxxv. .] [footnote p: a copy of the act made upon this occasion, very elegantly engrossed and illuminated, was sent him to moscow as a present.] [footnote q: ann. c. .] [footnote r: _saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio, sed unice ut lucro suo consulant, institores forte et mercatores. et, quamvis hos saepe defenderint et comitum loco habere voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. quum autem ea res nonnunquam turbas dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum._ van bynkersh. _c._ . _prope finem_.] [footnote s: fitzg. . stra. .] ii. it is also the king's prerogative to make treaties, leagues, and alliances with foreign states and princes. for it is by the law of nations essential to the goodness of a league, that it be made by the sovereign power[t]; and then it is binding upon the whole community: and in england the sovereign power, _quoad hoc_, is vested in the person of the king. whatever contracts therefore he engages in, no other power in the kingdom can legally delay, resist, or annul. and yet, lest this plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted before) hath here interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as advise or conclude any treaty, which shall afterwards be judged to derogate from the honour and interest of the nation. [footnote t: puff. l. of n. b. . c. . §. .] iii. upon the same principle the king has also the sole prerogative of making war and peace. for it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power[u]: and this right is given up not only by individuals, but even by the intire body of people, that are under the dominion of a sovereign. it would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. whatever hostilities therefore may be committed by private citizens, the state ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. such unauthorized voluntiers in violence are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law[w]; _hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones aut praedones sunt_. and the reason which is given by grotius[x], why according to the law of nations a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put upon his guard, (which is matter rather of magnanimity than right) but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community; whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. so that, in order to make a war completely effectual, it is necessary with us in england that it be publicly declared and duly proclaimed by the king's authority; and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. and, wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. and the same check of parliamentary impeachment, for improper or inglorious conduct, in beginning, conducting, or concluding a national war, is in general sufficient to restrain the ministers of the crown from a wanton or injurious exertion of this great prerogative. [footnote u: puff. l. . c. . §. . and barbeyr. _in loc._] [footnote w: _ff._ . . .] [footnote x: _de jur. b. & p._ _l._ . _c._ . §. .] iv. but, as the delay of making war may sometimes be detrimental to individuals who have suffered by depredations from foreign potentates, our laws have in some respect armed the subject with powers to impel the prerogative; by directing the ministers of the crown to issue letters of marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and plainly derived from, that other of making war; this being indeed only an incomplete state of hostilities, and generally ending in a formal denunciation of war. these letters are grantable by the law of nations[y], whenever the subjects of one state are oppressed and injured by those of another; and justice is denied by that state to which the oppressor belongs. in this case letters of marque and reprisal (words in themselves synonimous and signifying a taking in return) may be obtained, in order to seise the bodies or goods of the subjects of the offending state, until satisfaction be made, wherever they happen to be found. indeed this custom of reprisals seems dictated by nature herself; and accordingly we find in the most antient times very notable instances of it[z]. but here the necessity is obvious of calling in the sovereign power, to determine when reprisals may be made; else every private sufferer would be a judge in his own cause. and, in pursuance of this principle, it is with us declared by the statute hen. v. c. . that, if any subjects of the realm are oppressed in time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves grieved. which form is thus directed to be observed: the sufferer must first apply to the lord privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request of satisfaction made, the party required do not within convenient time make due satisfaction or restitution to the party grieved, the lord chancellor shall make him out letters of marque under the great seal; and by virtue of these he may attack and seise the property of the aggressor nation, without hazard of being condemned as a robber or pirate. [footnote y: grot. _de jur. b. & p._ _l._ . _c._ . §. & .] [footnote z: see the account given by nestor, in the eleventh book of the iliad, of the reprisals made by himself on the epeian nation; from whom he took a multitude of cattle, as a satisfaction for a prize won at the elian games by his father neleus, and for debts due to many private subjects of the pylian kingdom: out of which booty the king took three hundred head of cattle for his own demand, and the rest were equitably divided among the other creditors.] v. upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another. and therefore puffendorf very justly resolves[a], that it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient; those being ever excepted who are driven on the coasts by necessity, or by any cause that deserves pity or compassion. great tenderness is shewn by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks) but with regard also to the admission of strangers who come spontaneously. for so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king's protection; though liable to be sent home whenever the king sees occasion. but no subject of a nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon the high seas, or send his goods and merchandize from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which by divers antient statutes[b] must be granted under the king's great seal and inrolled in chancery, or else are of no effect: the king being supposed the best judge of such emergencies, as may deserve exception from the general law of arms. [footnote a: law of n. and n. b. . c. . §. .] [footnote b: hen. vi. c. . hen. vi. c. . hen. vi. c. .] indeed the law of england, as a commercial country, pays a very particular regard to foreign merchants in innumerable instances. one i cannot omit to mention: that by _magna carta_[c] it is provided, that all merchants (unless publickly prohibited beforehand) shall have safe conduct to depart from, to come into, to tarry in, and to go through england, for the exercise of merchandize, without any unreasonable imposts, except in time of war: and, if a war breaks out between us and their country, they shall be attached (if in england) without harm of body or goods, till the king or his chief justiciary be informed how our merchants are treated in the land with which we are at war; and, if ours be secure in that land, they shall be secure in ours. this seems to have been a common rule of equity among all the northern nations; for we learn from stiernhook[d], that it was a maxim among the goths and swedes, "_quam legem exteri nobis posuere, eandem illis ponemus_." but it is somewhat extraordinary, that it should have found a place in _magna carta_, a mere interior treaty between the king and his natural-born subjects; which occasions the learned montesquieu to remark with a degree of admiration, "that the english have made the protection of _foreign_ merchants one of the articles of their _national_ liberty[e]." but indeed it well justifies another observation which he has made[f], "that the english know better than any other people upon earth, how to value at the same time these three great advantages, religion, liberty, and commerce." very different from the genius of the roman people; who in their manners, their constitution, and even in their laws, treated commerce as a dishonorable employment, and prohibited the exercise thereof to persons of birth, or rank, or fortune[g]: and equally different from the bigotry of the canonists, who looked on trade as inconsistent with christianity[h], and determined at the council of melfi, under pope urban ii, _a.d._ , that it was impossible with a safe conscience to exercise any traffic, or follow the profession of the law[i]. [footnote c: _c._ .] [footnote d: _de jure sueon._ _l._ . _c._ .] [footnote e: sp. l. . .] [footnote f: sp. l. . .] [footnote g: _nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere prohibemus._ _c._ . .] [footnote h: _homo mercator vix aut nunquam potest deo placere: et ideo nullus christianus debet esse mercator; aut si voluerit esse, projiciatur de ecclesia dei._ _decret._ . . .] [footnote i: _falsa fit poenitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione non praevalet._ _act. concil. apud baron._ _c._ .] these are the principal prerogatives of the king, respecting this nation's intercourse with foreign nations; in all of which he is considered as the delegate or representative of his people. but in domestic affairs he is considered in a great variety of characters, and from thence there arises an abundant number of other prerogatives. i. first, he is a constituent part of the supreme legislative power; and, as such, has the prerogative of rejecting such provisions in parliament, as he judges improper to be passed. the expediency of which constitution has before been evinced at large[k]. i shall only farther remark, that the king is not bound by any act of parliament, unless he be named therein by special and particular words. the most general words that can be devised ("any person or persons, bodies politic, or corporate, _&c._") affect not him in the least, if they may tend to restrain or diminish any of his rights or interests[l]. for it would be of most mischievous consequence to the public, if the strength of the executive power were liable to be curtailed without it's own express consent, by constructions and implications of the subject. yet where an act of parliament is expressly made for the preservation of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown, it is said to be binding as well upon the king as upon the subject[m]: and, likewise, the king may take the benefit of any particular act, though he be not especially named[n]. [footnote k: ch. . pag. .] [footnote l: rep. _b._] [footnote m: rep. .] [footnote n: rep. .] ii. the king is considered, in the next place, as the generalissimo, or the first in military command, within the kingdom. the great end of society is to protect the weakness of individuals by the united strength of the community: and the principal use of government is to direct that united strength in the best and most effectual manner, to answer the end proposed. monarchical government is allowed to be the fittest of any for this purpose: it follows therefore, from the very end of it's institution, that in a monarchy the military power must be trusted in the hands of the prince. in this capacity therefore, of general of the kingdom, the king has the sole power of raising and regulating fleets and armies. of the manner in which they are raised and regulated i shall speak more, when i come to consider the military state. we are now only to consider the prerogative of enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and precedent, by the long parliament of king charles i; but, upon the restoration of his son, was solemnly declared by the statute car. ii. c. . to be in the king alone: for that the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty, and his royal predecessors, kings and queens of england; and that both or either house of parliament cannot, nor ought to, pretend to the same. this statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and other places of strength, within the realm; the sole prerogative as well of erecting, as manning and governing of which, belongs to the king in his capacity of general of the kingdom[o]: and all lands were formerly subject to a tax, for building of castles wherever the king thought proper. this was one of the three things, from contributing to the performance of which no lands were exempted; and therefore called by our saxon ancestors the _trinoda necessitas: sc. pontis reparatio, arcis constructio, et expeditio contra hostem_[p]. and this they were called upon to do so often, that, as sir edward coke from m. paris assures us[q], there were in the time of henry ii castles subsisting in england. the inconvenience of which, when granted out to private subjects, the lordly barons of those times, was severely felt by the whole kingdom; for, as william of newbury remarks in the reign of king stephen, "_erant in anglia quodammodo tot reges vel potius tyranni, quot domini castellorum_:" but it was felt by none more sensibly than by two succeeding princes, king john and king henry iii. and therefore, the greatest part of them being demolished in the barons' wars, the kings of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and sir edward coke lays it down[r], that no subject can build a castle, or house of strength imbatteled, or other fortress defensible, without the licence of the king; for the danger which might ensue, if every man at his pleasure might do it. [footnote o: inst. .] [footnote p: cowel's interpr. _tit. castellorum operatio_. seld. _jan. angl._ . .] [footnote q: inst. .] [footnote r: inst. .] to this branch of the prerogative may be referred the power vested in his majesty, by statutes car. ii. c. . and geo. ii. c. . of prohibiting the exportation of arms or ammunition out of this kingdom, under severe penalties: and likewise the right which the king has, whenever he sees proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas. by the common law[s], every man may go out of the realm for whatever cause he pleaseth, without obtaining the king's leave; provided he is under no injunction of staying at home: (which liberty was expressly declared in king john's great charter, though left out in that of henry iii) but, because that every man ought of right to defend the king and his realm, therefore the king at his pleasure may command him by his writ that he go not beyond the seas, or out of the realm without licence; and if he do the contrary, he shall be punished for disobeying the king's command. some persons there antiently were, that, by reason of their stations, were under a perpetual prohibition of going abroad without licence obtained; among which were reckoned all peers, on account of their being counsellors of the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics, who were expressly confined by cap. . of the constitutions of clarendon, on account of their attachment in the times of popery to the see of rome; all archers and other artificers, lest they should instruct foreigners to rival us in their several trades and manufactures. this was law in the times of britton[t], who wrote in the reign of edward i: and sir edward coke[u] gives us many instances to this effect in the time of edward iii. in the succeeding reign the affair of travelling wore a very different aspect: an act of parliament being made[w], forbidding all persons whatever to go abroad without licence; _except_ only the lords and other great men of the realm; and true and notable merchants; and the king's soldiers. but this act was repealed by the statute jac. i. c. . and at present every body has, or at least assumes, the liberty of going abroad when he pleases. yet undoubtedly if the king, by writ of _ne exeat regnum_, under his great seal or privy seal, thinks proper to prohibit him from so doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either case the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's lands shall be seised till he return; and then he is liable to fine and imprisonment[x]. [footnote s: f.n.b. .] [footnote t: c. .] [footnote u: inst. .] [footnote w: ric. ii. c. .] [footnote x: hawk. p.c. .] iii. another capacity, in which the king is considered in domestic affairs, is as the fountain of justice and general conservator of the peace of the kingdom. by the fountain of justice the law does not mean the _author_ or _original_, but only the _distributor_. justice is not derived from the king, as from his _free gift_; but he is the steward of the public, to dispense it to whom it is _due_[y]. he is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand chanels, to every individual. the original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complaints; and in england this authority has immemorially been exercised by the king or his substitutes. he therefore has alone the right of erecting courts of judicature: for, though the constitution of the kingdom hath entrusted him with the whole executive power of the laws, it is impossible, as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary, that courts should be erected, to assist him in executing this power; and equally necessary, that, if erected, they should be erected by his authority. and hence it is, that all jurisdictions of courts are either mediately or immediately derived from the crown, their proceedings run generally in the king's name, they pass under his seal, and are executed by his officers. [footnote y: _ad hoc autem creatus est et electus, ut justitiam faciat universis._ bract. _l._ . _tr._ . _c._ .] it is probable, and almost certain, that in very early times, before our constitution arrived at it's full perfection, our kings in person often heard and determined causes between party and party. but at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament[z]. and, in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute w. iii. c. . that their commissions shall be made (not, as formerly, _durante bene placito_, but) _quamdiu bene se gesserint_, and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament. and now, by the noble improvements of that law in the statute of geo. iii. c. . enacted at the earnest recommendation of the king himself from the throne, the judges are continued in their offices during their good behaviour, notwithstanding any demise of the crown (which was formerly held[a] immediately to vacate their seats) and their full salaries are absolutely secured to them during the continuance of their commissions: his majesty having been pleased to declare, that "he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown[b]." [footnote z: hawk. p.c. .] [footnote a: ld raym. .] [footnote b: com. journ. mar. .] in criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sate in judgment; because in regard to these he appears in another capacity, that of _prosecutor_. all offences are either against the king's peace, or his crown and dignity; and are so laid in every indictment. for, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all it's power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. he is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. and this notion was carried so far in the old gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace) that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king's coronation oath; _dicebatur fregisse juramentum regis juratum_[c]. and hence also arises another branch of the prerogative, that of _pardoning_ offences; for it is reasonable that he only who is injured should have the power of forgiving. and therefore, in parliamentary impeachments, the king has no prerogative of pardoning: because there the commons of great britain are in their own names the prosecutors, and not the crown; the offence being for the most part avowedly taken to be done against the public. of prosecutions and pardons i shall treat more at large hereafter; and only mention them here, in this cursory manner, to shew the constitutional grounds of this power of the crown, and how regularly connected all the links are in this vast chain of prerogative. [footnote c: stiernh. _de jure goth._ _l._ . _c._ . a notion somewhat similar to this may be found in the mirrour. c. . §. .] in this distinct and separate existence of the judicial power, in a peculiar body of men, nominated indeed, but not removeable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. were it joined with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. were it joined with the executive, this union might soon be an over-ballance for the legislative. for which reason, by the statute of car. i. c. . which abolished the court of star chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state. and indeed, that the absolute power, claimed and exercised in a neighbouring nation, is more tolerable than that of the eastern empires, is in great measure owing to their having vested the judicial power in their parliaments, a body separate and distinct from both the legislative and executive: and, if ever that nation recovers it's former liberty, it will owe it to the efforts of those assemblies. in turkey, where every thing is centered in the sultan or his ministers, despotic power is in it's meridian, and wears a more dreadful aspect. a consequence of this prerogative is the legal _ubiquity_ of the king. his majesty, in the eye of the law, is always present in all his courts, though he cannot personally distribute justice[d]. his judges are the mirror by which the king's image is reflected. it is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject. and from this ubiquity it follows, that the king can never be nonsuit[e]; for a nonsuit is the desertion of the suit or action by the non-appearance of the plaintiff in court. for the same reason also, in the forms of legal proceedings, the king is not said to appear _by his attorney_, as other men do; for he always appears in contemplation of law in his own proper person[f]. [footnote d: fortesc. c. . inst. .] [footnote e: co. litt. .] [footnote f: finch. l. .] from the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. these proclamations have then a binding force, when (as sir edward coke observes[g]) they are grounded upon and enforce the laws of the realm. for, though the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. and therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. thus the established law is, that the king may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo upon all shipping in time of war[h], will be equally binding as an act of parliament, because founded upon a prior law. a proclamation for disarming papists is also binding, being only in execution of what the legislature has first ordained: but a proclamation for allowing arms to papists, or for disarming any protestant subjects, will not bind; because the first would be to assume a dispensing power, the latter a legislative one; to the vesting of either of which in any single person the laws of england are absolutely strangers. indeed by the statute hen. viii. c. . it was enacted, that the king's proclamations should have the force of acts of parliament: a statute, which was calculated to introduce the most despotic tyranny; and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after[i]. [footnote g: inst. .] [footnote h: mod. , .] [footnote i: stat. edw. vi. c. .] iv. the king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from that wherein he is stiled the fountain of justice; for here he is really the parent of them. it is impossible that government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. it has therefore intrusted with him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none, but such as deserve them. and therefore all degrees of nobility, of knighthood, and other titles, are received by immediate grant from the crown: either expressed in writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal investiture, as in the creation of a simple knight. from the same principle also arises the prerogative of erecting and disposing of offices: for honours and offices are in their nature convertible and synonymous. all offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those that are most able to execute them. and, on the other hand, all honours in their original had duties or offices annexed to them: an earl, _comes_, was the conservator or governor of a county; and a knight, _miles_, was bound to attend the king in his wars. for the same reason therefore that honours are in the disposal of the king, offices ought to be so likewise; and as the king may create new titles, so may he create new offices: but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices; for this would be a tax upon the subject, which cannot be imposed but by act of parliament[k]. wherefore, in hen. iv, a new office being created by the king's letters patent for measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee, revoked and declared void in parliament. [footnote k: inst. .] upon the same, or a like reason, the king has also the prerogative of conferring privileges upon private persons. such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom[l]: or such as converting aliens, or persons born out of the king's dominions, into denizens; whereby some very considerable privileges of natural-born subjects are conferred upon them. such also is the prerogative of erecting corporations; whereby a number of private persons are united and knit together, and enjoy many liberties, powers, and immunities in their politic capacity, which they were utterly incapable of in their natural. of aliens, denizens, natural-born, and naturalized subjects, i shall speak more largely in a subsequent chapter; as also of corporations at the close of this book of our commentaries. i now only mention them incidentally, in order to remark the king's prerogative of making them; which is grounded upon this foundation, that the king, having the sole administration of the government in his hands, is the best and the only judge, in what capacities, with what privileges, and under what distinctions, his people are the best qualified to serve, and to act under him. a principle, which was carried so far by the imperial law, that it was determined to be the crime of sacrilege, even to doubt whether the prince had appointed proper officers in the state[m]. [footnote l: inst. .] [footnote m: _disputare de principali judicio non oportet: sacrilegii enim instar est, dubitare an is dignus sit; quem elegerit imperator._ _c._ . . .] v. another light in which the laws of england consider the king with regard to domestic concerns, is as the arbiter of commerce. by commerce, i at present mean domestic commerce only. it would lead me into too large a field, if i were to attempt, to enter upon the nature of foreign trade, it's privileges, regulations, and restrictions; and would be also quite beside the purpose of these commentaries, which are confined to the laws of england. whereas no municipal laws can be sufficient to order and determine the very extensive and complicated affairs of traffic and merchandize; neither can they have a proper authority for this purpose. for as these are transactions carried on between the subjects of independent states, the municipal laws of one will not be regarded by the other. for which reason the affairs of commerce are regulated by a law of their own, called the law merchant or _lex mercatoria_, which all nations agree in and take notice of. and in particular the law of england does in many cases refer itself to it, and leaves the causes of merchants to be tried by their own peculiar customs; and that often even in matters relating to inland trade, as for instance with regard to the drawing, the acceptance, and the transfer, of bills of exchange[n]. [footnote n: co. litt. . ld raym. . .] with us in england, the king's prerogative, so far as it relates to mere domestic commerce, will fall principally under the following articles: first, the establishment of public marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging. these can only be set up by virtue of the king's grant, or by long and immemorial usage and prescription, which presupposes such a grant[o]. the limitation of these public resorts, to such time and such place as may be most convenient for the neighbourhood, forms a part of oeconomics, or domestic polity; which, considering the kingdom as a large family, and the king as the master of it, he clearly has a right to dispose and order as he pleases. [footnote o: inst. .] secondly, the regulation of weights and measures. these, for the advantage of the public, ought to be universally the same throughout the kingdom; being the general criterions which reduce all things to the same or an equivalent value. but, as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or a pound-weight. it is therefore necessary to have recourse to some visible, palpable, material standard; by forming a comparison with which, all weights and measures may be reduced to one uniform size: and the prerogative of fixing this standard, our antient law vested in the crown; as in normandy it belonged to the duke[p]. this standard was originally kept at winchester: and we find in the laws of king edgar[q], near a century before the conquest, an injunction that the one measure, which was kept at winchester, should be observed throughout the realm. most nations have regulated the standard of measures of length by comparison with the parts of the human body; as the palm, the hand, the span, the foot, the cubit, the ell, (_ulna_, or arm) the pace, and the fathom. but, as these are of different dimensions in men of different proportions, our antient historians[r] inform us, that a new standard of longitudinal measure was ascertained by king henry the first; who commanded that the _ulna_ or antient ell, which answers to the modern yard, should be made of the exact length of his own arm. and, one standard of measures of length being gained, all others are easily derived from thence; those of greater length by multiplying, those of less by subdividing, that original standard. thus, by the statute called _compositio ulnarum et perticarum_, five yards and an half make a perch; and the yard is subdivided into three feet, and each foot into twelve inches; which inches will be each of the length of three grains of barley. superficial measures are derived by squaring those of length; and measures of capacity by cubing them. the standard of weights was originally taken from corns of wheat, whence the lowest denomination of weights we have is still called a grain; thirty two of which are directed, by the statute called _compositio mensurarum_, to compose a penny weight, whereof twenty make an ounce, twelve ounces a pound, and so upwards. and upon these principles the first standards were made; which, being originally so fixed by the crown, their subsequent regulations have been generally made by the king in parliament. thus, under king richard i, in his parliament holden at westminster, _a.d._ , it was ordained that there shall be only one weight and one measure throughout the kingdom, and that the custody of the assise or standard of weights and measures shall be committed to certain persons in every city and borough[s]; from whence the antient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee, to measure all cloths made for sale, till the office was abolished by the statute & w. iii. c. . in king john's time this ordinance of king richard was frequently dispensed with for money[t]; which occasioned a provision to be made for inforcing it, in the great charters of king john and his son[u]. these original standards were called _pondus regis_[w], and _mensura domini regis_[x]; and are directed by a variety of subsequent statutes to be kept in the exchequer, and all weights and measures to be made conformable thereto[y]. but, as sir edward coke observes[z], though this hath so often by authority of parliament been enacted, yet it could never be effected; so forcible is custom with the multitude, when it hath gotten an head. [footnote p: _gr. coustum._ _c._ .] [footnote q: _cap._ .] [footnote r: william of malmsb. _in vita hen. i._ spelm. _hen. i. ap._ wilkins. .] [footnote s: hoved. matth. paris.] [footnote t: hoved. _a.d._ .] [footnote u: hen. iii. c. .] [footnote w: _plac. edw. i. apud_ cowel's interpr. _tit. pondus regis._] [footnote x: _flet._ . .] [footnote y: edw. iii. st. . c. . edw. iii. st. . c. . ric. ii. c. . hen. vi. c. . hen. vi. c. . hen. vii. c. . car. ii. c. .] [footnote z: inst. .] thirdly, as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or make it current. money is an universal medium, or common standard, by comparison with which the value of all merchandize may be ascertained: or it is a sign, which represents the respective values of all commodities. metals are well calculated for this sign, because they are durable and are capable of many subdivisions: and a precious metal is still better calculated for this purpose, because it is the most portable. a metal is also the most proper for a common measure, because it can easily be reduced to the same standard in all nations: and every particular nation fixes on it it's own impression, that the weight and standard (wherein consists the intrinsic value) may both be known by inspection only. as the quantity of precious metals increases, that is, the more of them there is extracted from the mine, this universal medium or common sign will sink in value, and grow less precious. above a thousand millions of bullion are calculated to have been imported into europe from america within less than three centuries; and the quantity is daily increasing. the consequence is, that more money must be given now for the same commodity than was given an hundred years ago. and, if any accident was to diminish the quantity of gold and silver, their value would proportionably rise. a horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of current specie, the price may be reduced to what it was. yet is the horse in reality neither dearer nor cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as scarce as at present, the commodity was then as dear at half the price, as now it is at the whole. the coining of money is in all states the act of the sovereign power; for the reason just mentioned, that it's value may be known on inspection. and with respect to coinage in general, there are three things to be considered therein; the materials, the impression, and the denomination. with regard to the materials, sir edward coke lays it down[a], that the money of england must either be of gold or silver; and none other was ever issued by the royal authority till , when copper farthings and half-pence were coined by king charles the second, and ordered by proclamation to be current in all payments, under the value of six-pence, and not otherwise. but this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it. [footnote a: inst. .] as to the impression, the stamping thereof is the unquestionable prerogative of the crown: for, though divers bishops and monasteries had formerly the privilege of coining money, yet, as sir matthew hale observes[b], this was usually done by special grant from the king, or by prescription which supposes one; and therefore was derived from, and not in derogation of, the royal prerogative. besides that they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent them from the exchequer. [footnote b: hist. p.c. .] the denomination, or the value for which the coin is to pass current, is likewise in the breast of the king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. in order to fix the value, the weight, and the fineness of the metal are to be taken into consideration together. when a given weight of gold or silver is of a given fineness, it is then of the true standard, and called sterling metal; a name for which there are various reasons given[c], but none of them entirely satisfactory. and of this sterling metal all the coin of the kingdom must be made by the statute edw. iii. c. . so that the king's prerogative seemeth not to extend to the debasing or inhancing the value of the coin, below or above the sterling value[d]: though sir matthew hale[e] appears to be of another opinion. the king may also, by his proclamation, legitimate foreign coin, and make it current here; declaring at what value it shall be taken in payments[f]. but this, i apprehend, ought to be by comparison with the standard of our own coin; otherwise the consent of parliament will be necessary. there is at present no such legitimated money; portugal coin being only current by private consent, so that any one who pleases may refuse to take it in payment. the king may also at any time decry, or cry down, any coin of the kingdom, and make it no longer current[g]. [footnote c: spelm. gloss. .] [footnote d: inst. .] [footnote e: h.p.c. .] [footnote f: _ibid._ .] [footnote g: _ibid._] vi. the king is, lastly, considered by the laws of england as the head and supreme governor of the national church. to enter into the reasons upon which this prerogative is founded is matter rather of divinity than of law. i shall therefore only observe that by statute hen. viii. c. . (reciting that the king's majesty justly and rightfully is and ought to be the supreme head of the church of england; and so had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king shall be reputed the only supreme head in earth of the church of england, and shall have, annexed to the imperial crown of this realm, as well the titles and stile thereof, as all jurisdictions, authorities, and commodities, to the said dignity of supreme head of the church appertaining. and another statute to the same purport was made, eliz. c. . in virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves all ecclesiastical synods or convocations. this was an inherent prerogative of the crown, long before the time of henry viii, as appears by the statute hen. vi. c. . and the many authors, both lawyers and historians, vouched by sir edward coke[h]. so that the statute hen. viii. c. . which restrains the convocation from making or putting in execution any canons repugnant to the king's prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old common law: that part of it only being new, which makes the king's royal assent actually necessary to the validity of every canon. the convocation or ecclesiastical synod, in england, differs considerably in it's constitution from the synods of other christian kingdoms: those consisting wholly of bishops; whereas with us the convocation is the miniature of a parliament, wherein the archbishop presides with regal state; the upper house of bishops represents the house of lords; and the lower house, composed of representatives of the several dioceses at large, and of each particular chapter therein, resembles the house of commons with it's knights of the shire and burgesses[i]. this constitution is said to be owing to the policy of edward i; who thereby at one and the same time let in the inferior clergy to the privilege of forming ecclesiastical canons, (which before they had not) and also introduced a method of taxing ecclesiastical benefices, by consent of convocation[k]. [footnote h: inst. , .] [footnote i: in the diet of sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy resembles the convocation of england. it is composed of the bishops and superintendants; and also of deputies, one of which is chosen by every ten parishes or rural deanry. mod. un. hist. xxxiii. .] [footnote k: gilb. hist. of exch. c. .] from this prerogative also of being the head of the church arises the king's right of nomination to vacant bishopricks, and certain other ecclesiastical preferments; which will better be considered when we come to treat of the clergy. i shall only here observe, that this is now done in consequence of the statute hen. viii. c. . as head of the church, the king is likewise the _dernier resort_ in all ecclesiastical causes; an appeal lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was restored to the crown by statute hen. viii. c. . as will more fully be shewn hereafter. chapter the eighth. of the king's revenue. having, in the preceding chapter, considered at large those branches of the king's prerogative, which contribute to his royal dignity, and constitute the executive power of the government, we proceed now to examine the king's _fiscal_ prerogatives, or such as regard his _revenue_; which the british constitution hath vested in the royal person, in order to support his dignity and maintain his power: being a portion which each subject contributes of his property, in order to secure the remainder. this revenue is either ordinary, or extraordinary. the king's ordinary revenue is such, as has either subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase or exchange for such of the king's inherent hereditary revenues, as were found inconvenient to the subject. when i say that it has subsisted time out of mind in the crown, i do not mean that the king is at present in the actual possession of the whole of this revenue. much (nay, the greatest part) of it is at this day in the hands of subjects; to whom it has been granted out from time to time by the kings of england: which has rendered the crown in some measure dependent on the people for it's ordinary support and subsistence. so that i must be obliged to recount, as part of the royal revenue, what lords of manors and other subjects frequently look upon to be their own absolute rights, because they are and have been vested in them and their ancestors for ages, though in reality originally derived from the grants of our antient princes. i. the first of the king's ordinary revenues, which i shall take notice of, is of an ecclesiastical kind; (as are also the three succeeding ones) viz. the custody of the temporalties of bishops; by which are meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to an archbishop's or bishop's see. and these upon the vacancy of the bishoprick are immediately the right of the king, as a consequence of his prerogative in church matters; whereby he is considered as the founder of all archbishopricks and bishopricks, to whom during the vacancy they revert. and for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties of all such abbeys and priories as were of royal foundation (but not of those founded by subjects) on the death of the abbot or prior[a]. another reason may also be given, why the policy of the law hath vested this custody in the king; because, as the successor is not known, the lands and possessions of the see would be liable to spoil and devastation, if no one had a property therein. therefore the law has given the king, not the temporalties themselves, but the _custody_ of the temporalties, till such time as a successor is appointed; with power of taking to himself all the intermediate profits, without any account to the successor; and with the right of presenting (which the crown very frequently exercises) to such benefices and other preferments as fall within the time of vacation[b]. this revenue is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued: but now by the statute edw. iii. st. . c. & . the king may, after the vacancy, lease the temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. our antient kings, and particularly william rufus, were not only remarkable for keeping the bishopricks a long time vacant, for the sake of enjoying the temporalties, but also committed horrible waste on the woods and other parts of the estate; and, to crown all, would never, when the see was filled up, restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. to remedy which, king henry the first[c] granted a charter at the beginning of his reign, promising neither to sell, nor let to farm, nor take any thing from, the domains of the church, till the successor was installed. and it was made one of the articles of the great charter[d], that no waste should be committed in the temporalties of bishopricks, neither should the custody of them be sold. the same is ordained by the statute of westminster the first[e]; and the statute edw. iii. st. . c. . (which permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the other exactions. it was also a frequent abuse, that the king would for trifling, or no causes, seise the temporalties of bishops, even during their lives, into his own hands: but this is guarded against by statute edw. iii. st. . c. . [footnote a: inst. .] [footnote b: stat. edw. ii. c. . f.n.b. .] [footnote c: matth. paris.] [footnote d: hen. iii. c. .] [footnote e: edw. i. c. .] this revenue of the king, which was formerly very considerable, is now by a customary indulgence almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed, he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and then, and not sooner, he has a fee simple in his bishoprick, and may maintain an action for the same[f]. [footnote f: co. litt. . .] ii. the king is entitled to a corody, as the law calls it, out of every bishoprick: that is, to send one of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop promotes him to a benefice[g]. this is also in the nature of an acknowlegement to the king, as founder of the see; since he had formerly the same corody or pension from every abbey or priory of royal foundation. it is, i apprehend, now fallen into total disuse; though sir matthew hale says[h], that it is due of common right, and that no prescription will discharge it. [footnote g: f.n.b. .] [footnote h: notes on f.n.b. above cited.] iii. the king also (as was formerly observed[i]) is entitled to all the tithes arising in extraparochial places[k]: though perhaps it may be doubted how far this article, as well as the last, can be properly reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and these extraparochial tithes are held under an implied trust, that the king will distribute them for the good of the clergy in general. [footnote i: page .] [footnote k: inst. .] iv. the next branch consists in the first-fruits, and tenths, of all spiritual preferments in the kingdom; both of which i shall consider together. these were originally a part of the papal usurpations over the clergy of this kingdom; first introduced by pandulph the pope's legate, during the reigns of king john and henry the third, in the see of norwich; and afterwards attempted to be made universal by the popes clement v and john xxii, about the beginning of the fourteenth century. the first-fruits, _primitiae_, or _annates_, were the first year's whole profits of the spiritual preferment, according to a rate or _valor_ made under the direction of pope innocent iv by walter bishop of norwich in hen. iii, and afterwards advanced in value by commission from pope nicholas the third, _a.d._ , edw. i[l]; which valuation of pope nicholas is still preserved in the exchequer[m]. the tenths, or _decimae_, were the tenth part of the annual profit of each living by the same valuation; which was also claimed by the holy see, under no better pretence than a strange misapplication of that precept of the levitical law, which directs[n], "that the levites should offer the tenth part of their tithe as a heave-offering to the lord, and give it to aaron the _high_ priest." but this claim of the pope met with vigorous resistance from the english parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute hen. iv. c. . which calls it a horrible mischief and damnable custom. but the popish clergy, blindly devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes more openly and avowedly: so that, in the reign of henry viii, it was computed, that in the compass of fifty years ducats had been sent to rome for first-fruits only. and, as the clergy expressed this willingness to contribute so much of their income to the head of the church, it was thought proper (when in the same reign the papal power was abolished, and the king was declared the head of the church of england) to annex this revenue to the crown; which was done by statute hen. viii. c. . (confirmed by statute eliz. c. .) and a new _valor beneficiorum_ was then made, by which the clergy are at present rated. [footnote l: f.n.b. .] [footnote m: inst. .] [footnote n: numb. . .] by these lastmentioned statutes all vicarages under ten pounds a year, and all rectories under ten marks, are discharged from the payment of first-fruits: and if, in such livings as continue chargeable with this payment, the incumbent lives but half a year, he shall pay only one quarter of his first-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two years, then the whole; and not otherwise. likewise by the statute hen. viii. c. . no tenths are to be paid for the first year, for then the first-fruits are due: and by other statutes of queen anne, in the fifth and sixth years of her reign, if a benefice be under fifty pounds _per annum_ clear yearly value, it shall be discharged of the payment of first-fruits and tenths. thus the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication of their revenues, through the rapacious disposition of the then reigning monarch: till at length the piety of queen anne restored to the church what had been thus indirectly taken from it. this she did, not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying these superfluities of the larger benefices to make up the deficiences of the smaller. and to this end she granted her royal charter, which was confirmed by the statute ann. c. . whereby all the revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the augmentation of poor livings. this is usually called queen anne's bounty; which has been still farther regulated by subsequent statutes, too numerous here to recite. v. the next branch of the king's ordinary revenue (which, as well as the subsequent branches, is of a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. these demesne lands, _terrae dominicales regis_, being either the share reserved to the crown at the original distribution of landed property, or such as came to it afterwards by forfeitures or other means, were antiently very large and extensive; comprizing divers manors, honors, and lordships; the tenants of which had very peculiar privileges, as will be shewn in the second book of these commentaries, when we speak of the tenure in antient demesne. at present they are contracted within a very narrow compass, having been almost entirely granted away to private subjects. this has occasioned the parliament frequently to interpose; and, particularly, after king william iii had greatly impoverished the crown, an act passed[o], whereby all future grants or leases from the crown for any longer term than thirty one years or three lives are declared to be void; except with regard to houses, which may be granted for fifty years. and no reversionary lease can be made, so as to exceed, together with the estate in being, the same term of three lives or thirty one years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king cannot grant a future interest, to commence after the expiration of the former, for any longer term than eleven years. the tenant must also be made liable to be punished for committing waste; and the usual rent must be reserved, or, where there has usually been no rent, one third of the clear yearly value[p]. the misfortune is, that this act was made too late, after almost every valuable possession of the crown had been granted away for ever, or else upon very long leases; but may be of benefit to posterity, when those leases come to expire. [footnote o: ann. st. . c. .] [footnote p: in like manner, by the civil law, the inheritances or _fundi patrimoniales_ of the imperial crown could not be alienated, but only let to farm. _cod._ _l._ . _t._ .] vi. hither might have been referred the advantages which were used to arise to the king from the profits of his military tenures, to which most lands in the kingdom were subject, till the statute car. ii. c. . which in great measure abolished them all: the explication of the nature of which tenures, must be referred to the second book of these commentaries. hither also might have been referred the profitable prerogative of purveyance and pre-emption: which was a right enjoyed by the crown of buying up provisions and other necessaries, by the intervention of the king's purveyors, for the use of his royal houshold, at an appraised valuation, in preference to all others, and even without consent of the owner; and also of forcibly impressing the carriages and horses of the subject, to do the king's business on the publick roads, in the conveyance of timber, baggage, and the like, however inconvenient to the proprietor, upon paying him a settled price. a prerogative, which prevailed pretty generally throughout europe, during the scarcity of gold and silver, and the high valuation of money consequential thereupon. in those early times the king's houshold (as well as those of inferior lords) were supported by specific renders of corn, and other victuals, from the tenants of the respective demesnes; and there was also a continual market kept at the palace gate to furnish viands for the royal use[q]. and this answered all purposes, in those ages of simplicity, so long as the king's court continued in any certain place. but when it removed from one part of the kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors beforehand, to get together a sufficient quantity of provisions and other necessaries for the houshold: and, lest the unusual demand should raise them to an exorbitant price, the powers beforementioned were vested in these purveyors; who in process of time very greatly abused their authority, and became a great oppression to the subject though of little advantage to the crown; ready money in open market (when the royal residence was more permanent, and specie began to be plenty) being found upon experience to be the best proveditor of any. wherefore by degrees the powers of purveyance have declined, in foreign countries as well as our own; and particularly were abolished in sweden by gustavus adolphus, toward the beginning of the last century[r]. and, with us in england, having fallen into disuse during the suspension of monarchy, king charles at his restoration consented, by the same statute, to resign intirely these branches of his revenue and power, for the ease and convenience of his subjects: and the parliament, in part of recompense, settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence _per_ barrel on all beer and ale sold in the kingdom, and a proportionable sum for certain other liquors. so that this hereditary excise, the nature of which shall be farther explained in the subsequent part of this chapter, now forms the sixth branch of his majesty's ordinary revenue. [footnote q: inst. .] [footnote r: mod. un. hist. xxxiii. .] vii. a seventh branch might also be computed to have arisen from wine licences; or the rents payable to the crown by such persons as are licensed to sell wine by retale throughout england, except in a few privileged places. these were first settled on the crown by the statute car. ii. c. . and, together with the hereditary excise, made up the equivalent in value for the loss sustained by the prerogative in the abolition of the military tenures, and the right of pre-emption and purveyance: but this revenue was abolished by the statute geo. ii. c. . and an annual sum of upwards of £ _per annum_, issuing out of the new stamp duties imposed on wine licences, was settled on the crown in it's stead. viii. an eighth branch of the king's ordinary revenue is usually reckoned to consist in the profits arising from his forests. forests are waste grounds belonging to the king, replenished with all manner of beasts of chase or venary; which are under the king's protection, for the sake of his royal recreation and delight: and, to that end, and for preservation of the king's game, there are particular laws, privileges, courts and officers belonging to the king's forests; all which will be, in their turns, explained in the subsequent books of these commentaries. what we are now to consider are only the profits arising to the king from hence; which consist principally in amercements or fines levied for offences against the forest-laws. but as few, if any courts of this kind for levying amercements have been held since , car. i. and as, from the accounts given of the proceedings in that court by our histories and law books[s], nobody would now wish to see them again revived, it is needless (at least in this place) to pursue this enquiry any farther. [footnote s: jones. - .] ix. the profits arising from the king's ordinary courts of justice make a ninth branch of his revenue. and these consist not only in fines imposed upon offenders, forfeitures of recognizances, and amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal matters, as, for setting the great seal to charters, original writs, and other legal proceedings, and for permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. as none of these can be done without the immediate intervention of the king, by himself or his officers, the law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the public. these, in process of time, have been almost all granted out to private persons, or else appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their payment, very little of them is now returned into the king's exchequer; for a part of whose royal maintenance they were originally intended. all future grants of them however, by the statute ann. st. . c. . are to endure for no longer time than the prince's life who grants them. x. a tenth branch of the king's ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to _royal fish_, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coasts, are the property of the king, on account[t] of their superior excellence. indeed our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of denmark and the dukes of normandy[u]; and from one of these it was probably derived to our princes. it is expressly claimed and allowed in the statute _de praerogativa regis_[w]: and the most antient treatises of law now extant make mention of it[x]; though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter[y]. [footnote t: plowd. .] [footnote u: stiernh. _de jure sueonum._ _l._ . _c._ . _gr. coustum._ _cap._ .] [footnote w: edw. ii. c. .] [footnote x: bracton. _l._ . _c._ . britton. _c._ . fleta. _l._ . _c._ & .] [footnote y: ch. . pag. .] xi. another maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king's property by the same prerogative statute edw. ii. c. . and were so, long before, at the common law. it is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened, in favour of the distressed proprietors. wreck, by the antient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the king: for it was held, that, by the loss of the ship, all property was gone out of the original owner[z]. but this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. wherefore it was first ordained by king henry i, that if any person escaped alive out of the ship it should be no wreck[a]; and afterwards king henry ii, by his charter[b], declared, that if on the coasts of either england, poictou, oleron, or gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. this was again confirmed with improvements by king richard the first, who, in the second year of his reign[c], not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, "_omnes res suas liberas et quietas haberet_," but also, that, if he perished, his children, or in default of them his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king[d]. and the law, so long after as the reign of henry iii, seems still to have been guided by the same equitable provisions. for then if a dog (for instance) escaped, by which the owner might be discovered, or if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck[e]. and this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. but afterwards, in the statute of westminster the first[f], the law is laid down more agreeable to the charter of king henry the second: and upon that statute hath stood the legal doctrine of wrecks to the present time. it enacts, that if any live thing escape (a man, a cat, or a dog; which, as in bracton, are only put for examples[g],) in this case, and, as it seems, in this case only, it is clearly not a legal wreck: but the sheriff of the county is bound to keep the goods a year and a day (as in france for one year, agreeably to the maritime laws of oleron[h], and in holland for a year and an half) that if any man can prove a property in them, either in his own right or by right of representation[i], they shall be restored to him without delay; but, if no such property be proved within that time, they then shall be the king's. if the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead[k]. this revenue of wrecks is frequently granted out to lords of manors, as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king's goods are wrecked thereon, the king may claim them at any time, even after the year and day[l]. [footnote z: dr & st. d. . c. .] [footnote a: spelm. _cod. apud_ wilkins. .] [footnote b: may, _a.d._ . rym. _foed._ .] [footnote c: rog. hoved. _in ric. i_.] [footnote d: in like manner constantine the great, finding that by the imperial law the revenue of wrecks was given to the prince's treasury or _fiscus_, restrained it by an edict (_cod._ . . .) and ordered them to remain to the owners; adding this humane expostulation, "_quod enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa compendium sectetur?_"] [footnote e: bract. _l._ . _c._ .] [footnote f: edw. i. c. .] [footnote g: flet. . _c._ . inst. .] [footnote h: §. .] [footnote i: inst. .] [footnote k: plowd. .] [footnote l: inst. . bro. abr. _tit. wreck_.] it is to be observed, that in order to constitute a legal _wreck_, the goods must come to land. if they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of _jetsam_, _flotsam_, and _ligan_. jetsam is where goods are cast into the sea, and there sink and remain under water: flotsam is where they continue swimming on the surface of the waves: ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again[m]. these are also the king's, if no owner appears to claim them; but, if any owner appears, he is entitled to recover the possession. for even if they be cast overboard, without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property[n]: much less can things ligan be supposed to be abandoned, since the owner has done all in his power, to assert and retain his property. these three are therefore accounted so far a distinct thing from the former, that by the king's grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass[o]. [footnote m: rep. .] [footnote n: _quae enim res in tempestate, levandae navis causa, ejiciuntur, hac dominorum permanent. quia palam est, eas non eo animo ejici, quod quis habere nolit._ _inst._ . . §. .] [footnote o: rep. .] wrecks, in their legal acceptation, are at present not very frequent: it rarely happening that every living creature on board perishes; and if any should survive, it is a very great chance, since the improvement of commerce, navigation, and correspondence, but the owner will be able to assert his property within the year and day limited by law. and in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations; in a spirit quite opposite to those savage laws, which formerly prevailed in all the northern regions of europe, and a few years ago were still laid to subsist on the coasts of the baltic sea, permitting the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own expresses it, "_in naufragorum miseria et calamitate tanquam vultures ad praedam currere_[p]." for by the statute edw. iii. c. . if any ship be lost on the shore, and the goods come to land (so as it be not legal wreck) they shall be presently delivered to the merchants, they paying only a reasonable reward to those that saved and preserved them, which is intitled _salvage_. also by the common law, if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck, the owners might have a commission to enquire and find them out, and compel them to make restitution[q]. and by statute ann. st. . c. . confirmed by geo. i. c. . in order to assist the distressed, and prevent the scandalous illegal practices on some of our sea coasts, (too similar to those on the baltic) it is enacted, that all head-officers and others of towns near the sea shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of _l._ and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. all persons that secrete any goods shall forfeit their treble value: and if they wilfully do any act whereby the ship is lost or destroyed, by making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of clergy. lastly, by the statute geo. ii. c. . plundering any vessel either in distress, or wrecked, and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly not the property of the populace) such plundering, i say, or preventing the escape of any person that endeavors to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying trees, steeples, or other stated seamarks, is punished by the statute eliz. c. . with a forfeiture of _l._ moreover, by the statute of george ii, pilfering any goods cast ashore is declared to be petty larceny; and many other salutary regulations are made, for the more effectually preserving ships of any nation in distress[r]. [footnote p: stiernh. _de jure sueon._ _l._ . _c._ .] [footnote q: f.n.b. .] [footnote r: by the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. and to steal even a plank from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo. (_ff._ . . .) the laws also of the wisigoths, and the most early neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. (lindenbrog. _cod. ll. antiq._ . .)] xii. a twelfth branch of the royal revenue, the right to mines, has it's original from the king's prerogative of coinage, in order to supply him with materials: and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of silver and gold[s]. by the old common law, if gold or silver be found in mines of base metal, according to the opinion of some the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal[t]. but now by the statutes w. & m. st. . c. . and w. & m. c. . this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of devon and cornwall) paying for the same a price stated in the act. this was an extremely reasonable law: for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled. [footnote s: inst. .] [footnote t: plowd. .] xiii. to the same original may in part be referred the revenue of treasure-trove (derived from the french word, _trover_, to find) called in latin _thesaurus inventus_, which is where any money or coin, gold, silver, plate, or bullion, is found hidden _in_ the earth, or other private place, the owner thereof being unknown; in which case the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner and not the king is entitled to it[u]. also if it be found in the sea, or _upon_ the earth, it doth not belong to the king, but the finder, if no owner appears[w]. so that it seems it is the _hiding_, not the _abandoning_ of it, that gives the king a property: bracton[x] defining it, in the words of the civilians, to be "_vetus depositio pecuniae_." this difference clearly arises from the different intentions, which the law implies in the owner. a man, that hides his treasure in a secret place, evidently does not mean to relinquish his property; but reserves a right of claiming it again, when he sees occasion; and, if he dies and the secret also dies with him, the law gives it the king, in part of his royal revenue. but a man that scatters his treasure into the sea, or upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of nature, to the first occupant, or finder; unless the owner appear and assert his right, which then proves that the loss was by accident, and not with an intent to renounce his property. [footnote u: inst. . dalt. sheriffs. c. .] [footnote w: britt. c. . finch. l. .] [footnote x: _l._ . _c._ . §. .] formerly all treasure-trove belonged to the finder[y]; as was also the rule of the civil law[z]. afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the king; which part was assigned to be all _hidden_ treasure; such as is _casually lost_ and unclaimed, and also such as is _designedly abandoned_, still remaining the right of the fortunate finder. and that the prince shall be entitled to this hidden treasure is now grown to be, according to grotius[a], "_jus commune, et quasi gentium_:" for it is not only observed, he adds, in england, but in germany, france, spain, and denmark. the finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution than at present. when the romans, and other inhabitants of the respective countries which composed their empire, were driven out by the northern nations, they concealed their money under-ground; with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their desarts. but as this never happened, the treasures were never claimed; and on the death of the owners the secret also died along with them. the conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. in england therefore, as among the feudists[b], the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment[c]. [footnote y: bracton. _l._ . _c._ . inst. .] [footnote z: _ff._ . . .] [footnote a: _de jur. b. & p._ _l._ . _c._ . §. .] [footnote b: glanv. _l._ . _c._ . crag. . . .] [footnote c: inst. .] xiv. waifs, _bona waviata_, are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. these are given to the king by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away his goods from him[d]. and therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh _suit_) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again[e]. waived goods do also not belong to the king, till seised by somebody for his use; for if the party robbed can seise them first, though at the distance of twenty years, the king shall never have them[f]. if the goods are hid by the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them away in his flight; these also are not _bona waviata_, but the owner may have them again when he pleases[g]. the goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs[h]: the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant's not pursuing the thief, he being generally a stranger to our laws, our usages, and our language. [footnote d: cro. eliz. .] [footnote e: finch. l. .] [footnote f: _ibid._] [footnote g: rep. .] [footnote h: fitzh. _abr. tit. estray._ . bulstr. .] xv. estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompence for the damage which they may have done therein; and they now most commonly belong to the lord of the manor, by special grant from the crown. but in order to vest an absolute property in the king or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption[i]; even though the owner were a minor, or under any other legal incapacity[k]. a provision similar to which obtained in the old gothic constitution, with regard to all things that were found, which were to be thrice proclaimed, _primum coram comitibus et viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio_: and the space of a year was allowed for the owner to reclaim his property[l]. if the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them[m]. the king or lord has no property till the year and day passed: for if a lord keepeth an estray three quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again[n]. any beast may be an estray, that is by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so fleta[o] defines it, _pecus vagans, quod nullus petit, sequitur, vel advocat_. for animals upon which the law sets no value, as a dog or cat, and animals _ferae naturae_, as a bear or wolf, cannot be considered as estrays. so swans may be estrays, but not any other fowl[p]; whence they are said to be royal fowl. the reason of which distinction seems to be, that, cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. for he that takes an estray is bound, so long as he keeps it, to find it in provisions and keep it from damage[q]; and may not use it by way of labour, but is liable to an action for so doing[r]. yet he may milk a cow, or the like, for that tends to the preservation, and is for the benefit, of the animal[s]. [footnote i: mirr. c. . §. .] [footnote k: rep. . bro. _abr. tit. estray._ cro. eliz. .] [footnote l: stiernh. _de jur. gothor._ _l._ . _c._ .] [footnote m: dalt. sh. .] [footnote n: finch. l. .] [footnote o: _l._ . _c._ .] [footnote p: rep. .] [footnote q: roll. abr. .] [footnote r: cro. jac. .] [footnote s: cro. jac. . noy. .] besides the particular reasons before given why the king should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are _bona vacantia_, or goods in which no one else can claim a property. and therefore by the law of nature they belonged to the first occupant or finder; and so continued under the imperial law. but, in settling the modern constitutions of most of the governments in europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burthensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. and so it came to pass that, as bracton expresses it[t], _haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium_. [footnote t: _l._ . _c._ .] xvi. the next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences; _bona confiscata_, as they are called by the civilians, because they belonged to the _fiscus_ or imperial treasury; or, as our lawyers term them, _forisfacta_, that is, such whereof the property is gone away or departed from the owner. the true reason and only substantial ground of any forfeiture for crimes consist in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. if therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. hence, in every offence of an atrocious kind, the laws of england have exacted a total confiscation of the moveables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immoveables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. the particulars of these forfeitures will be more properly recited when we treat of crimes and misdemesnors. i therefore only mention them here, for the sake of regularity, as a part of the _census regalis_; and shall postpone for the present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a _deodand_. by this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner[u]; though formerly destined to a more superstitious purpose. it seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church[w]; in the same manner, as the apparel of a stranger who was found dead was applied to purchase masses for the good of his soul. and this may account for that rule of law, that no deodand is due where an infant under the years of discretion is killed by a fall _from_ a cart, or horse, or the like, not being in motion[x]; whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. for the reason given by sir matthew hale seems to be very inadequate, _viz._ because an infant is not able to take care of himself: for why should the owner save his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of mischief? the true ground of this rule seems rather to be, that the child, by reason of it's want of discretion, is presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who dies in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the english law. [footnote u: hal. p.c. . fleta. _l._ . _c._ .] [footnote w: fitzh. _abr. tit. enditement._ _pl._ . staunf. p.c. , .] [footnote x: inst. . hal. p.c. .] thus stands the law, if a person be killed by a fall from a thing standing still. but if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands[y]; which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. a like punishment is in like cases inflicted by the mosaical law[z]: "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." and among the athenians[a], whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. where a thing, not in motion, is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is killed by falling from it, the wheel alone is a deodand[b]: but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited[c]. it matters not whether the owner were concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited[d] as an accursed thing[e]. and therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given with a certain penknife, value sixpence) that the king or his grantee may claim the deodand: for it is no deodand, unless it be presented as such by a jury of twelve men[f]. no deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law: but if a man falls from a boat or ship in fresh water, and is drowned, the vessel and cargo are in strictness a deodand[g]. [footnote y: _omnia, quae movent ad mortem, sunt deo danda._ bracton. _l._ . _c._ .] [footnote z: exod. . .] [footnote a: aeschin. _contr. ctesiph._] [footnote b: hal. p.c. .] [footnote c: hawk. p.c. c. .] [footnote d: a similar rule obtained among the antient goths. _si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meae numeretur, habuisse vel aedificasse aliquod quo homo periret._ stiernhook _de jure goth._ _l._ . _c._ .] [footnote e: dr & st. d. . c. .] [footnote f: inst. .] [footnote g: inst. . hal. p.c. . molloy _de jur. maritim._ . .] deodands, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties; to the perversion of their original design. xvii. another branch of the king's ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. but the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat. xviii. i proceed therefore to the eighteenth and last branch of the king's ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics. an idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. for which reason the custody of him and of his lands was formerly vested in the lord of the fee[h]; (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders[i]) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress[k]: this fiscal prerogative of the king is declared in parliament by statute edw. ii. c. . which directs (in affirmance of the common law[l],) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; in order to prevent such idiots from aliening their lands, and their heirs from being disherited. [footnote h: flet. _l._ . _c._ . §. .] [footnote i: dyer. . hutt. . noy .] [footnote k: f.n.b. .] [footnote l: rep. .] by the old common law there is a writ _de idiota inquirendo_, to enquire whether a man be an idiot or not[m]: which must be tried by a jury of twelve men; and if they find him _purus idiota_, the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them[n]. this branch of the revenue hath been long considered as a hardship upon private families; and so long ago as in the jac. i. it was under the consideration of parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feodal tenures, which has been since abolished[o]. yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot _a nativitate_, but only _non compos mentis_ from some particular time; which has an operation very different in point of law. [footnote m: f.n.b. .] [footnote n: this power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of _begging_ a man for a fool.] [footnote o: . inst. . com. journ. .] a man is not an idiot[p], if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. but a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot[q]; he being supposed incapable of understanding, as wanting those senses which furnish the human mind with ideas. [footnote p: f.n.b. .] [footnote q: co. litt. . fleta. _l._ . _c._ .] a lunatic, or _non compos mentis_, is one who hath had understanding, but by disease, grief, or other accident hath lost the use of his reason. a lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change of the moon. but under the general name of _non compos mentis_ (which sir edward coke says is the most legal name[r]) are comprized not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that _grow_ deaf, dumb, and blind, not being _born_ so; or such, in short, as are by any means rendered incapable of conducting their own affairs. to these also, as well as idiots, the king is guardian, but to a very different purpose. for the law always imagines, that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. and therefore it is declared by the statute edw. ii. c. . that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them, for their use, when they come to their right mind: and the king shall take nothing to his own use; and if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administrations) shall now go to their executors or administrators. [footnote r: inst. .] the method of proving a person _non compos_ is very similar to that of proving him an idiot. the lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted[s], upon petition or information, grants a commission in nature of the writ _de idiota inquirendo_, to enquire into the party's state of mind; and if he be found _non compos_, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. however, to prevent sinister practices, the next heir is never permitted to be this committee of the person; because it is his interest that the party should die. but, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic's life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy[t]. the heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the court of chancery, and to the _non compos_ himself, if he recovers; or otherwise, to his administrators. [footnote s: p. wms. .] [footnote t: p. wms. .] in this care of idiots and lunatics the civil law agrees with ours; by assigning them tutors to protect their persons, and curators to manage their estates. but in another instance the roman law goes much beyond the english. for, if a man by notorious prodigality was in danger of wasting his estate, he was looked upon as _non compos_ and committed to the care of curators or tutors by the praetor[u]. and by the laws of solon such prodigals were branded with perpetual infamy[w]. but with us, when a man on an inquest of idiocy hath been returned an _unthrift_ and not an _idiot_[x], no farther proceedings have been had. and the propriety of the practice itself seems to be very questionable. it was doubtless an excellent method of benefiting the individual and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. "_sic utere tuo, ut alienum non laedas_," is the only restriction our laws have given with regard to oeconomical prudence. and the frequent circulation and transfer of lands and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in it's due health and vigour. [footnote u: _solent praetores, si talem hominem invenerint, qui neque tempus neque finem expensarum habet, sed bona sua dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille bonos mores, receperit._ _ff._ . . .] [footnote w: potter. antiqu. b. . c. .] [footnote x: bro. _abr. tit. ideot._ .] this may suffice for a short view of the king's _ordinary_ revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable: for there are very few estates in the kingdom, that have not, at some period or other since the norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. but, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits, arising from the other branches of the _census regalis_, are likewise almost all of them alienated from the crown. in order to supply the deficiences of which, we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king's _extraordinary_ revenue. for, the publick patrimony being got into the hands of private subjects, it is but reasonable that private contributions should supply the public service. which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others, yet, taking the nation throughout, it amounts to nearly the same; provided the gain by the extraordinary, should appear to be no greater than the loss by the ordinary, revenue. and perhaps, if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feodal tenures; and was to resign into the king's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like; he would find himself a greater loser, than by paying his _quota_ to such taxes, as are necessary to the support of government. the thing therefore to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. for as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend to their private concerns; it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. but the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising, the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare and at the same time most consistent with oeconomy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed[y], some part of his property, in order to enjoy the rest. [footnote y: pag. .] these extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, we have formerly seen[z], by the commons of great britain, in parliament assembled: who, when they have voted a supply to his majesty, and settled the _quantum_ of that supply, usually resolve themselves into what is called a committee of ways and means, to consider of the ways and means of raising the supply so voted. and in this committee every member (though it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such scheme of taxation as he thinks will be least detrimental to the public. the resolutions of this committee (when approved by a vote of the house) are in general esteemed to be (as it were) final and conclusive. for, through [transcriber's note: though] the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no monied man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it. [footnote z: pag. .] the taxes, which are raised upon the subject, are either annual or perpetual. the usual annual taxes are those upon land and malt. i. the land tax, in it's modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages, or talliages; a short explication of which will greatly assist us in understanding our antient laws and history. tenths, and fifteenths[a], were temporary aids issuing out of personal property, and granted to the king by parliament. they were formerly the real tenth or fifteenth part of all the moveables belonging to the subject; when such moveables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. tenths are said to have been first granted under henry the second, who took advantage of the fashionable zeal for croisades to introduce this new taxation, in order to defray the expense of a pious expedition to palestine, which he really or seemingly had projected against saladine emperor of the saracens; whence it was originally denominated the saladine tenth[b]. but afterwards fifteenths were more usually granted than tenths. originally the amount of these taxes was uncertain, being levied by assessments new made at every fresh grant of the commons, a commission for which is preserved by matthew paris[c]: but it was at length reduced to a certainty in the eighth of edw. iii. when, by virtue of the king's commission, new taxations were made of every township, borough, and city in the kingdom, and recorded in the exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole amounting to about _l._ and therefore it still kept up the name of a fifteenth, when, by the alteration of the value of money and the encrease of personal property, things came to be in a very different situation. so that when, of later years, the commons granted the king a fifteenth, every parish in england immediately knew their proportion of it; that is, the same identical sum that was assessed by the same aid in the eighth of edw. iii; and then raised it by a rate among themselves, and returned it into the royal exchequer. [footnote a: inst. . inst. .] [footnote b: hoved. _a.d._ . carte. . . hume. . .] [footnote c: _a.d._ .] the other antient levies were in the nature of a modern land tax; for we may trace up the original of that charge as high as to the introduction of our military tenures[d]; when every tenant of a knight's fee was bound, if called upon, to attend the king in his army for forty days in every year. but this personal attendance growing troublesome in many respects, the tenants found means of compounding for it, by first sending others in their stead, and in process of time by making a pecuniary satisfaction to the crown in lieu of it. this pecuniary satisfaction at last came to be levied by assessments, at so much for every knight's fee, under the name of scutages; which appear to have been levied for the first time in the fifth year of henry the second, on account of his expedition to toulouse, and were then (i apprehend) mere arbitrary compositions, as the king and the subject could agree. but this precedent being afterwards abused into a means of oppression, (by levying scutages on the landholders by the royal authority only, whenever our kings went to war, in order to hire mercenary troops and pay their contingent expences) it became thereupon a matter of national complaint; and king john was obliged to promise in his _magna carta_[e], that no scutage should be imposed without the consent of the common council of the realm. this clause was indeed omitted in the charters of henry iii, where[f] we only find it stipulated, that scutages should be taken as they were used to be in the time of king henry the second. yet afterwards, by a variety of statutes under edward i and his grandson[g], it was provided, that the king shall not take any aids or tasks, any talliage or tax, but by the common assent of the great men and commons in parliament. [footnote d: see the second book of these commentaries.] [footnote e: _cap._ .] [footnote f: hen. iii. c. .] [footnote g: edw. i. c. & . edw. i. st. . c. . edw. iii. st. . c. .] of the same nature with scutages upon knights-fees were the assessments of hydage upon all other lands, and of talliage upon cities and burghs[h]. but they all gradually fell into disuse, upon the introduction of subsidies, about the time of king richard ii and king henry iv. these were a tax, not immediately imposed upon property, but upon persons in respect of their reputed estates, after the nominal rate of _s._ in the pound for lands, and _s._ _d._ for goods; and for those of aliens in a double proportion. but this assessment was also made according to an antient valuation; wherein the computation was so very moderate, and the rental of the kingdom was supposed to be so exceeding low, that one subsidy of this sort did not, according to sir edward coke[i], amount to more than _l._ whereas a modern land tax at the same rate produces two millions. it was antiently the rule never to grant more than one subsidy, and two fifteenths at a time; but this rule was broke through for the first time on a very pressing occasion, the spanish invasion in ; when the parliament gave queen elizabeth two subsidies and four fifteenths. afterwards, as money sunk in value, more subsidies were given; and we have an instance in the first parliament of , of the king's desiring twelve subsidies of the commons, to be levied in three years; which was looked upon as a startling proposal: though lord clarendon tells us[k], that the speaker, serjeant glanvile, made it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling them he had computed what he was to pay for them; and, when he named the sum, he being known to be possessed of a great estate, it seemed not worth any farther deliberation. and indeed, upon calculation, we shall find, that the total amount of these twelve subsidies, to be raised in three years, is less than what is now raised in one year, by a land tax of two shillings in the pound. [footnote h: madox. hist. exch. .] [footnote i: inst. .] [footnote k: hist. b. .] the grant of scutages, talliages, or subsidies by the commons did not extend to spiritual preferments; those being usually taxed at the same time by the clergy themselves in convocation; which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not binding; as the same noble writer observes of the subsidies granted by the convocation, who continued sitting after the dissolution of the first parliament in . a subsidy granted by the clergy was after the rate of _s._ in the pound according to the valuation of their livings in the king's books; and amounted, sir edward coke tells us[l], to about _l._ while this custom continued, convocations were wont to sit as frequently as parliaments: but the last subsidies, thus given by the clergy, were those confirmed by statute car. ii. cap. . since which another method of taxation has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the beneficed clergy have from that period been allowed to vote at the elections of knights of the shire[m]; and thenceforward also the practice of giving ecclesiastical subsidies hath fallen into total disuse. [footnote l: inst .] [footnote m: dalt. of sheriffs, . gilb. hist. of exch. c. .] the lay subsidy was usually raised by commissioners appointed by the crown, or the great officers of state: and therefore in the beginning of the civil wars between charles i and his parliament, the latter, having no other sufficient revenue to support themselves and their measures, introduced the practice of laying weekly and monthly assessments[n] of a specific sum upon the several counties of the kingdom; to be levied by a pound rate on lands and personal estates: which were occasionally continued during the whole usurpation, sometimes at the rate of _l._ a month; sometimes at inferior rates[o]. after the restoration the antient method of granting subsidies, instead of such monthly assessments, was twice, and twice only, renewed; viz. in , when four subsidies were granted by the temporalty, and four by the clergy; and in , when _l._ was raised by way of subsidy, which was the last time of raising supplies in that manner. for, the monthly assessments being now established by custom, being raised by commissioners named by parliament, and producing a more certain revenue; from that time forwards we hear no more of subsidies; but occasional assessments were granted as the national emergencies required. these periodical assessments, the subsidies which preceded them, and the more antient scutage, hydage, and talliage, were to all intents and purposes a land tax; and the assessments were sometimes expressly called so[p]. yet a popular opinion has prevailed, that the land tax was first introduced in the reign of king william iii; because in the year a new assessment or valuation of estates was made throughout the kingdom; which, though by no means a perfect one, had this effect, that a supply of _l._ was equal to _s._ in the pound of the value of the estates given in. and, according to this enhanced valuation, from the year to the present, a period of above seventy years, the land tax has continued an annual charge upon the subject; above half the time at _s._ in the pound, sometimes at _s_, sometimes at _s_, twice[q] at _s_, but without any total intermission. the medium has been _s._ _d._ in the pound, being equivalent to twenty three antient subsidies, and amounting annually to more than a million and an half of money. the method of raising it is by charging a particular sum upon each county, according to the valuation given in, _a.d._ : and this sum is assessed and raised upon individuals (their personal estates, as well as real, being liable thereto) by commissioners appointed in the act, being the principal landholders of the county, and their officers. [footnote n: nov. mar. .] [footnote o: one of these bills of assessment, in , is preserved in scobell's collection, .] [footnote p: com. journ. jun. dec. .] [footnote q: in the years and .] ii. the other annual tax is the malt tax; which is a sum of _l_, raised every year by parliament, ever since , by a duty of _d._ in the bushel on malt, and a proportionable sum on certain liquors, such as cyder and perry, which might otherwise prevent the consumption of malt. this is under the management of the commissioners of the excise; and is indeed itself no other than an annual excise, the nature of which species of taxation i shall presently explain: only premising at present, that in the year an additional perpetual excise of _d._ _per_ bushel was laid upon malt; and in a proportionable excise was laid upon cyder and perry. the perpetual taxes are, i. the customs; or the duties, toll, tribute, or tariff, payable upon merchandize exported and imported. the considerations upon which this revenue (or the more antient part of it, which arose only from exports) was invested in the king, were said to be two[r]; . because he gave the subject leave to depart the kingdom, and to carry his goods along with him. . because the king was bound of common right to maintain and keep up the ports and havens, and to protect the merchant from pirates. some have imagined they are called with us customs, because they were the inheritance of the king by immemorial usage and the common law, and not granted him by any statute[s]: but sir edward coke hath clearly shewn[t], that the king's first claim to them was by grant of parliament edw. i. though the record thereof is not now extant. and indeed this is in express words confessed by statute edw. i. c. . wherein the king promises to take no customs from merchants, without the common assent of the realm, "saving to us and our heirs, the customs on wools, skins, and leather, formerly granted to us by the commonalty aforesaid." these were formerly called the hereditary customs of the crown; and were due on the exportation only of the said three commodities, and of none other: which were stiled the _staple_ commodities of the kingdom, because they were obliged to be brought to those ports where the king's staple was established, in order to be there first rated, and then exported[u]. they were denominated in the barbarous latin of our antient records, _custuma_[w]; not _consuetudines_, which is the language of our law whenever it means merely usages. the duties on wool, sheep-skins, or woolfells, and leather, exported, were called _custuma antiqua sive magna_; and were payable by every merchant, as well native as stranger; with this difference, that merchant-strangers paid an additional toll, _viz._ half as much again as was paid by natives. the _custuma parva et nova_ were an impost of _d._ in the pound, due from merchant-strangers only, for all commodities as well imported as exported; which was usually called the alien's duty, and was first granted in edw. i[x]. but these antient hereditary customs, especially those on wool and woolfells, came to be of little account when the nation became sensible of the advantages of a home manufacture, and prohibited the exportation of wool by statute edw. iii. c. . [footnote r: dyer. .] [footnote s: dyer. . _pl._ .] [footnote t: inst. , .] [footnote u: dav. .] [footnote w: this appellation seems to be derived from the french word _coustum_, or _coûtum_, which signifies toll or tribute, and owes it's own etymology to the word _coust_, which signifies price, charge, or, as we have adopted it in english, _cost_.] [footnote x: inst. .] there is also another antient hereditary duty belonging to the crown, called the _prisage_ or _butlerage_ of wines. prisage was a right of _taking_ two tons of wine from every ship importing into england twenty tons or more; which by edward i was exchanged into a duty of _s._ for every ton imported by merchant-strangers; which is called butlerage, because paid to the king's butler[y]. [footnote y: dav. . _b._ bulstr. .] other customs payable upon exports and imports are distinguished into subsidies, tonnage, poundage, and other imposts. subsidies are such as were imposed by parliament upon any of the staple commodities before mentioned, over and above the _custuma antiqua et magna_: tonnage was a duty upon all wines imported, over and above the prisage and butlerage aforesaid: poundage was a duty imposed _ad valorem_, at the rate of _d._ in the pound, on all other merchandize whatsoever: and the other imports were such as were occasionally laid on by parliament, as circumstances and times required[z]. these distinctions are now in a manner forgotten, except by the officers immediately concerned in this department; their produce being in effect all blended together, under the one denomination of the customs. [footnote z: dav. , .] by these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all imported as well as exported commodities, by authority of parliament; unless where, for particular national reasons, certain rewards, bounties, or drawbacks, are allowed for particular exports or imports. those of tonnage and poundage, in particular, were at first granted, as the old statutes, and particularly eliz. c. . express it, for the defence of the realm, and the keeping and safeguard of the seas, and for the intercourse of merchandize safely to come into and pass out of the same. they were at first usually granted only for a stated term of years, as, for two years in ric. ii[a]; but in henry the fifth's time, they were granted him for life by a statute in the third year of his reign; and again to edward iv for the term of his life also: since which time they were regularly granted to all his successors, for life, sometimes at their first, sometimes at other subsequent parliaments, till the reign of charles the first; when, as had before happened in the reign of henry viii[b] and other princes, they were neglected to be asked. and yet they were imprudently and unconstitutionally levied and taken without consent of parliament, (though more than one had been assembled) for fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first in too many instances, but which degenerated at last into causeless rebellion and murder. for, as in every other, so in this particular case, the king (previous to the commencement of hostilities) gave the nation ample satisfaction for the errors of his former conduct, by passing an act[c], whereby he renounced all power in the crown of levying the duty of tonnage and poundage, without the express consent of parliament; and also all power of imposition upon any merchandizes whatever. upon the restoration this duty was granted to king charles the second for life, and so it was to his two immediate successors; but now by three several statutes, ann. c. . geo. i. c. . and geo. i. c. . it is made perpetual and mortgaged for the debt of the publick. the customs, thus imposed by parliament, are chiefly contained in two books of rates, set forth by parliamentary authority[d]; one signed by sir harbottle grimston, speaker of the house of commons in charles the second's time; and the other an additional one signed by sir spenser compton, speaker in the reign of george the first; to which also subsequent additions have been made. aliens pay a larger proportion than natural subjects, which is what is now generally understood by the aliens' duty; to be exempted from which is one principal cause of the frequent applications to parliament for acts of naturalization. [footnote a: dav. .] [footnote b: stat. hen. viii. c. .] [footnote c: car. i. c. .] [footnote d: stat. car. ii. c. . geo. i. c. .] these customs are then, we see, a tax immediately paid by the merchant, although ultimately by the consumer. and yet these are the duties felt least by the people; and, if prudently managed, the people hardly consider that they pay them at all. for the merchant is easy, being sensible he does not pay them for himself; and the consumer, who really pays them, confounds them with the price of the commodity: in the same manner as tacitus observes, that the emperor nero gained the reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer to the seller; so that it was, as he expresses it, "_remissum magis specie, quam vi: quia cum venditor pendere juberetur, in partem pretii emptoribus accrescebat_[e]." but this inconvenience attends it on the other hand, that these imposts, if too heavy, are a check and cramp upon trade; and especially when the value of the commodity bears little or no proportion to the quantity of the duty imposed. this in consequence gives rise also to smuggling, which then becomes a very lucrative employment: and it's natural and most reasonable punishment, _viz._ confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods, which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable when compared with his prospect of advantage in evading the duty. recourse must therefore be had to extraordinary punishments to prevent it; perhaps even to capital ones: which destroys all proportion of punishment[f], and puts murderers upon an equal footing with such as are really guilty of no natural, but merely a positive offence. [footnote e: hist. l. .] [footnote f: montesqu. sp. l. b. . c. .] there is also another ill consequence attending high imports on merchandize, not frequently considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it falls upon the consumer in the end: for every trader, through whose hands it passes, must have a profit, not only upon the raw material and his own labour and time in preparing it, but also upon the very tax itself, which he advances to the government; otherwise he loses the use and interest of the money which he so advances. to instance in the article of foreign paper. the merchant pays a duty upon importation, which he does not receive again till he sells the commodity, perhaps at the end of three months. he is therefore equally entitled to a profit upon that duty which he pays at the customhouse, as to a profit upon the original price which he pays to the manufacturer abroad; and considers it accordingly in the price he demands of the stationer. when the stationer sells it again, he requires a profit of the printer or bookseller upon the whole sum advanced by him to the merchant: and the bookseller does not forget to charge the full proportion to the student or ultimate consumer; who therefore does not only pay the original duty, but the profits of these three intermediate traders, who have successively advanced it for him. this might be carried much farther in any mechanical, or more complicated, branch of trade. ii. directly opposite in it's nature to this is the excise duty; which is an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption. this is doubtless, impartially speaking, the most oeconomical way of taxing the subject: the charges of levying, collecting, and managing the excise duties being considerably less in proportion, than in any other branch of the revenue. it also renders the commodity cheaper to the consumer, than charging it with customs to the same amount would do; for the reason just now given, because generally paid in a much later stage of it. but, at the same time, the rigour and arbitrary proceedings of excise-laws seem hardly compatible with the temper of a free nation. for the frauds that might be committed in this branch of the revenue, unless a strict watch is kept, make it necessary, wherever it is established, to give the officers a power of entring and searching the houses of such as deal in excisable commodities, at any hour of the day, and, in many cases, of the night likewise. and the proceedings in case of transgressions are so summary and sudden, that a man may be convicted in two days time in the penalty of many thousand pounds by two commissioners or justices of the peace; to the total exclusion of the trial by jury, and disregard of the common law. for which reason, though lord clarendon tells us[g], that to his knowlege the earl of bedford (who was made lord treasurer by king charles the first, to oblige his parliament) intended to have set up the excise in england, yet it never made a part of that unfortunate prince's revenue; being first introduced, on the model of the dutch prototype, by the parliament itself after it's rupture with the crown. yet such was the opinion of it's general unpopularity, that when in "aspersions were cast by malignant persons upon the house of commons, that they intended to introduce excises, the house for it's vindication therein did declare, that these rumours were false and scandalous; and that their authors should be apprehended and brought to condign punishment[h]." it's original establishment was in , and it's progress was gradual[i]; being at first laid upon those persons and commodities, where it was supposed the hardship would be least perceivable, _viz._ the makers and venders of beer, ale, cyder, and perry[k]; and the royalists at oxford soon followed the example of their brethren at westminster by imposing a similar duty; both sides protesting that it should be continued no longer than to the end of the war, and then be utterly abolished[l]. but the parliament at westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude of other commodities that it might fairly be denominated general; in pursuance of the plan laid down by mr pymme (who seems to have been the father of the excise) in his letter to sir john hotham[m], signifying, "that they had proceeded in the excise to many particulars, and intended to go on farther; but that it would be necessary to use the people to it by little and little." and afterwards, when the people had been accustomed to it for a series of years, the succeeding champions of liberty boldly and openly declared, "the impost of excise to be the most easy and indifferent levy that could be laid upon the people[n]:" and accordingly continued it during the whole usurpation. upon king charles's return, it having then been long established and it's produce well known, some part of it was given to the crown, in the car. ii, by way of purchase (as was before observed) for the feodal tenures and other oppressive parts of the hereditary revenue. but, from it's first original to the present time, it's very name has been odious to the people of england. it has nevertheless been imposed on abundance of other commodities in the reigns of king william iii, and every succeeding prince, to support the enormous expenses occasioned by our wars on the continent. thus brandies and other spirits are now excised at the distillery; printed silks and linens, at the printers; starch and hair powder, at the maker's; gold and silver wire, at the wiredrawer's; all plate whatsoever, first in the hands of the vendor, who pays yearly for a licence to sell it, and afterwards in the hands of the occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel carriages, for which the occupier is excised; though not with the same circumstances of arbitrary strictness with regard to plate and coaches, as in the other instances. to these we may add coffee and tea, chocolate, and cocoa paste, for which the duty is paid by the retailer; all artificial wines, commonly called sweets; paper and pasteboard, first when made, and again if stained or printed; malt as before-mentioned; vinegars; and the manufacture of glass; for all which the duty is paid by the manufacturer; hops, for which the person that gathers them is answerable; candles and soap, which are paid for at the maker's; malt liquors brewed for sale, which are excised at the brewery; cyder and perry, at the mill; and leather and skins, at the tanner's. a list, which no friend to his country would wish to see farther encreased. [footnote g: hist. b. .] [footnote h: com. journ. oct. .] [footnote i: the translator and continuator of petavius's chronological history (lond. .) informs us, that it was first moved for, mar. , by mr prynne. and it appears from the journals of the commons that on that day the house resolved itself into a committee to consider of raising money, in consequence of which the excise was afterwards voted. but mr prynne was not a member of parliament till nov. ; and published in "a protestation against the illegal, detestable, and oft-condemned tax and extortion of excise in general." it is probably therefore a mistake of the printer for mr pymme, who was intended for chancellor of the exchequer under the earl of bedford. (lord clar. b. .)] [footnote k: com. journ. may .] [footnote l: lord clar. b. .] [footnote m: may . dugdale of the troubles, .] [footnote n: ord. aug. . c. . scobell. . stat. . c. . scobell. .] iii. i proceed therefore to a third duty, namely that upon salt; which is another distinct branch of his majesty's extraordinary revenue, and consists in an excise of _s._ _d._ _per_ bushel imposed upon all salt, by several statutes of king william and other subsequent reigns. this is not generally called an excise, because under the management of different commissioners: but the commissioners of the salt duties have by statute ann. c. . the same powers, and must observe the same regulations, as those of other excises. this tax had usually been only temporary; but by statute geo. ii. c. . was made perpetual. iv. another very considerable branch of the revenue is levied with greater chearfulness, as, instead of being a burden, it is a manifest advantage to the public. i mean the post-office, or duty for the carriage of letters. as we have traced the original of the excise to the parliament of , so it is but justice to observe that this useful invention owes it's birth to the same assembly. it is true, there existed postmasters in much earlier times: but i apprehend their business was confined to the furnishing of posthorses to persons who were desirous to travel expeditiously, and to the dispatching extraordinary pacquets upon special occasions. the outline of the present plan seems to have been originally conceived by mr edmond prideaux, who was appointed attorney general to the commonwealth after the murder of king charles. he was a chairman of a committee in for considering what rates should be set upon inland letters[o]; and afterwards appointed postmaster by an ordinance of both the houses[p], in the execution of which office he first established a weekly conveyance of letters into all parts of the nation[q]: thereby saving to the public the charge of maintaining postmasters, to the amount of _l._ _per annum_. and, his own emoluments being probably considerable, the common council of london endeavoured to erect another post-office in opposition to his, till checked by a resolution of the commons[r], declaring, that the office of postmaster is and ought to be in the sole power and disposal of the parliament. this office was afterwards farmed by one manley in [s]. but, in , a regular post-office was erected by the authority of the protector and his parliament, upon nearly the same model as has been ever since adopted, with the same rates of postage as were continued till the reign of queen anne[t]. after the restoration a similar office, with some improvements, was established by statute car. ii. c. . but the rates of letters were altered, and some farther regulations added, by the statutes ann. c. . geo. i. c. . geo. ii. c. . and geo. iii. c. . and penalties were enacted, in order to confine the carriage of letters to the public office only, except in some few cases: a provision, which is absolutely necessary; for nothing but an exclusive right can support an office of this sort: many rival independent offices would only serve to ruin one another. the privilege of letters coming free of postage, to and from members of parliament, was claimed by the house of commons in , when the first legal settlement of the present post-office was made[u]; but afterwards dropped[w] upon a private assurance from the crown, that this privilege should be allowed the members[x]. and accordingly a warrant was constantly issued to the postmaster-general[y], directing the allowance thereof, to to [transcriber's note: duplicate word] the extent of two ounces in weight: till at length it was expressly confirmed by statute geo. iii. c. ; which adds many new regulations, rendered necessary by the great abuses crept into the practice of franking; whereby the annual amount of franked letters had gradually increased, from _l._ in the year , to _l._ in the year [z]. there cannot be devised a more eligible method, than this, of raising money upon the subject: for therein both the government and the people find a mutual benefit. the government acquires a large revenue; and the people do their business with greater ease, expedition, and cheapness, than they would be able to do if no such tax (and of course no such office) existed. [footnote o: com. journ. mar. .] [footnote p: _ibid._ sept. .] [footnote q: _ibid._ mar. .] [footnote r: _ibid._] [footnote s: scobell. .] [footnote t: com. journ. jun. . scobell. .] [footnote u: com. journ. dec. .] [footnote w: _ibid._ dec. .] [footnote x: _ibid._ apr. .] [footnote y: _ibid._ feb. .] [footnote z: _ibid._ mar. .] v. a fifth branch of the perpetual revenue consists in the stamp duties, which are a tax imposed upon all parchment and paper whereon any legal proceedings, or private instruments of almost any nature whatsoever, are written; and also upon licences for retailing wines, of all denominations; upon all almanacks, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets of paper. these imposts are very various, according to the nature of the thing stamped, rising gradually from a penny to ten pounds. this is also a tax, which though in some instances it may be heavily felt, by greatly increasing the expence of all mercantile as well as legal proceedings, yet (if moderately imposed) is of service to the public in general, by authenticating instruments, and rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers of this branch of the revenue vary their stamps frequently, by marks perceptible to none but themselves, a man that would forge a deed of king william's time, must know and be able to counterfeit the stamp of that date also. in france and some other countries the duty is laid on the contract itself, not on the instrument in which it is contained: but this draws the subject into a thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable or not; in which the farmers of the revenue are sure to have the advantage. our method answers the purposes of the state as well, and consults the ease of the subject much better. the first institution of the stamp duties was by statute & w. & m. c. . and they have since in many instances been encreased to five times their original amount. vi. a sixth branch is the duty upon houses and windows. as early as the conquest mention is made in domesday book of fumage or fuage, vulgarly called smoke farthings; which were paid by custom to the king for every chimney in the house. and we read that edward the black prince (soon after his successes in france) in imitation of the english custom, imposed a tax of a florin upon every hearth in his french dominions[a]. but the first parliamentary establishment of it in england was by statute & car. ii. c. . whereby an hereditary revenue of _s._ for every hearth, in all houses paying to church and poor, was granted to the king for ever. and, by subsequent statutes, for the more regular assessment of this tax, the constable and two other substantial inhabitants of the parish, to be appointed yearly, were, once in every year, empowered to view the inside of every house in the parish. but, upon the revolution, by statute w. & m. st. . c. . hearth-money was declared to be "not only a great oppression to the poorer sort, but a badge of slavery upon the whole people, exposing every man's house to be entered into, and searched at pleasure, by persons unknown to him; and therefore, to erect a lasting monument of their majesties' goodness in every house in the kingdom, the duty of hearth-money was taken away and abolished." this monument of goodness remains among us to this day: but the prospect of it was somewhat darkened when, in six years afterwards, by statute w. iii. c. . a tax was laid upon all houses (except cottages) of _s._ now advanced to _s._ _per_ house, and a tax also upon all windows, if they exceed nine, in such house. which rates have been from time to time varied, (particularly by statutes geo. ii. c. . and geo. ii. c. .) and power is given to surveyors, appointed by the crown, to inspect the outside of houses, and also to pass through any house two days in the year, into any court or yard to inspect the windows there. [footnote a: mod. un. hist. xxiii. . spelm. gloss. _tit. fuage_.] vii. the seventh branch of the extraordinary perpetual revenue is the duty arising from licences to hackney coaches and chairs in london, and the parts adjacent. in two hundred hackney coaches were allowed within london, westminster, and six miles round, under the direction of the court of aldermen[b]. by statute & car. ii. c. . four hundred were licensed; and the money arising thereby was applied to repairing the streets[c]. this number was increased to seven hundred by statute w. & m. c. . and the duties vested in the crown: and by the statute ann. c. . and other subsequent statutes[d], there are now eight hundred licensed coaches and four hundred chairs. this revenue is governed by commissioners of it's own, and is, in truth, a benefit to the subject; as the expense of it is felt by no individual, and it's necessary regulations have established a competent jurisdiction, whereby a very refractory race of men may be kept in some tolerable order. [footnote b: scobell. .] [footnote c: com. journ. feb. .] [footnote d: ann. c. . §. . geo. i. c. . geo. ii. c. .] viii. the eighth and last branch of the king's extraordinary perpetual revenue is the duty upon offices and pensions; consisting in a payment of _s._ in the pound (over and above all other duties) out of all salaries, fees, and perquisites, of offices and pensions payable by the crown. this highly popular taxation was imposed by statute geo. ii. c. . and is under the direction of the commissioners of the land tax. the clear neat produce of these several branches of the revenue, after all charges of collecting and management paid, amounts annually to about seven millions and three quarters sterling; besides two millions and a quarter raised annually, at an average, by the land and malt tax. how these immense sums are appropriated, is next to be considered. and this is, first and principally, to the payment of the interest of the national debt. in order to take a clear and comprehensive view of the nature of this national debt, it must first be premised, that after the revolution, when our new connections with europe introduced a new system of foreign politics, the expenses of the nation, not only in settling the new establishment, but in maintaining long wars, as principals, on the continent, for the security of the dutch barrier, reducing the french monarchy, settling the spanish succession, supporting the house of austria, maintaining the liberties of the germanic body, and other purposes, increased to an unusual degree: insomuch that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within that year, lest the unaccustomed weight of them should create murmurs among the people. it was therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense sums for the current service of the state, and to lay no more taxes upon the subject than would suffice to pay the annual interest of the sums so borrowed: by this means converting the principal debt into a new species of property, transferrable from one man to another at any time and in any quantity. a system which seems to have had it's original in the state of florence, _a.d._ : which government then owed about _l._ sterling; and, being unable to pay it, formed the principal into an aggregate sum, called metaphorically a _mount_ or _bank_, the shares whereof were transferrable like our stocks, with interest at _per cent._ the prices varying according to the exigencies of the state[e]. this laid the foundation of what is called the national debt: for a few long annuities created in the reign of charles ii will hardly deserve that name. and the example then set has been so closely followed during the long wars in the reign of queen anne, and since, that the capital of the national debt, (funded and unfunded) amounted in january to upwards of , , _l._ to pay the interest of which, and the charges for management, amounting annually to about four millions and three quarters, the revenues just enumerated are in the first place mortgaged, and made perpetual by parliament. perpetual, i say; but still redeemable by the same authority that imposed them: which, if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the interest. [footnote e: _pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit._ aretin. see mod. un. hist. xxxvi. .] by this means the quantity of property in the kingdom is greatly encreased in idea, compared with former times; yet, if we coolly consider it, not at all encreased in reality. we may boast of large fortunes, and quantities of money in the funds. but where does this money exist? it exists only in name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the creditors of the public to rely on. but then what is the pledge which the public faith has pawned for the security of these debts? the land, the trade, and the personal industry of the subject; from which the money must arise that supplies the several taxes. in these therefore, and these only, the property of the public creditors does really and intrinsically exist: and of course the land, the trade, and the personal industry of individuals, are diminished in their true value just so much as they are pledged to answer. if a's income amounts to _l._ _per annum_; and he is so far indebted to b, that he pays him _l._ _per annum_ for his interest; one half of the value of a's property is transferred to b the creditor. the creditor's property exists in the demand which he has upon the debtor, and no where else; and the debtor is only a trustee to his creditor for one half of the value of his income. in short, the property of a creditor of the publick, consists in a certain portion of the national taxes: by how much therefore he is the richer, by so much the nation, which pays these taxes, is the poorer. the only advantage, that can result to a nation from public debts, is the encrease of circulation by multiplying the cash of the kingdom, and creating a new species of money, always ready to be employed in any beneficial undertaking, by means of it's transferrable quality; and yet productive of some profit, even when it lies idle and unemployed. a certain proportion of debt seems therefore to be highly useful to a trading people; but what that proportion is, it is not for me to determine. thus much is indisputably certain, that the present magnitude of our national incumbrances very far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences. for, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the artificer's subsistence, as of the raw material, and of course, in a much greater proportion, the price of the commodity itself. secondly, if part of this debt be owing to foreigners, either they draw out of the kingdom annually a considerable quantity of specie for the interest; or else it is made an argument to grant them unreasonable privileges in order to induce them to reside here. thirdly, if the whole be owing to subjects only, it is then charging the active and industrious subject, who pays his share of the taxes, to maintain the indolent and idle creditor who receives them. lastly, and principally, it weakens the internal strength of a state, by anticipating those resources which should be reserved to defend it in case of necessity. the interest we now pay for our debts would be nearly sufficient to maintain any war, that any national motives could require. and if our ancestors in king william's time had annually paid, so long as their exigences lasted, even a less sum than we now annually raise upon their accounts, they would in the time of war have borne no greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and might have been eased the instant the exigence was over. the produce of the several taxes beforementioned were originally separate and distinct funds; being securities for the sums advanced on each several tax, and for them only. but at last it became necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these separate funds, by uniting and blending them together; superadding the faith of parliament for the general security of the whole. so that there are now only three capital funds of any account, the _aggregate_ fund, and the _general_ fund, so called from such union and addition; and the _south sea_ fund, being the produce of the taxes appropriated to pay the interest of such part of the national debt as was advanced by that company and it's annuitants. whereby the separate funds, which were thus united, are become mutual securities for each other; and the whole produce of them, thus aggregated, is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith of the legislature being moreover engaged to supply any casual deficiences. the customs, excises, and other taxes, which are to support these funds, depending on contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain amount; but they have always been considerably more than was sufficient to answer the charge upon them. the surplusses therefore of the three great national funds, the aggregate, general, and south sea funds, over and above the interest and annuities charged upon them, are directed by statute geo. i. c. . to be carried together, and to attend the disposition of parliament; and are usually denominated the _sinking_ fund, because originally destined to sink and lower the national debt. to this have been since added many other intire duties, granted in subsequent years; and the annual interest of the sums borrowed on their respective credits is charged on and payable out of the produce of the sinking fund. however the neat surplusses and savings, after all deductions paid, amount annually to a very considerable sum; particularly in the year ending at christmas , to about two millions and a quarter. for, as the interest on the national debt has been at several times reduced, (by the consent of the proprietors, who had their option either to lower their interest or be paid their principal) the savings from the appropriated revenues must needs be extremely large. this sinking fund is the last resort of the nation; on which alone depend all the hopes we can entertain of ever discharging or moderating our incumbrances. and therefore the prudent application of the large sums, now arising from this fund, is a point of the utmost importance, and well worthy the serious attention of parliament; which has thereby been enabled, in this present year , to reduce above two millions sterling of the public debt. but, before any part of the aggregate fund (the surplusses whereof are one of the chief ingredients that form the sinking fund) can be applied to diminish the principal of the public debt, it stands mortgaged by parliament to raise an annual sum for the maintenance of the king's houshold and the civil list. for this purpose, in the late reigns, the produce of certain branches of the excise and customs, the post-office, the duty on wine licences, the revenues of the remaining crown lands, the profits arising from courts of justice, (which articles include all the hereditary revenues of the crown) and also a clear annuity of _l._ in money, were settled on the king for life, for the support of his majesty's houshold, and the honour and dignity of the crown. and, as the amount of these several branches was uncertain, (though in the last reign they were generally computed to raise almost a million) if they did not arise annually to , _l._ the parliament engaged to make up the deficiency. but his present majesty having, soon after his accession, spontaneously signified his consent, that his own hereditary revenues might be so disposed of as might best conduce to the utility and satisfaction of the public, and having graciously accepted the limited sum of _l._ _per annum_ for the support of his civil list (and that also charged with three life annuities, to the princess of wales, the duke of cumberland, and the princess amalie, to the amount of _l._) the said hereditary and other revenues are now carried into and made a part of the aggregate fund, and the aggregate fund is charged with the payment of the whole annuity to the crown of _l._ _per annum_[f]. hereby the revenues themselves, being put under the same care and management as the other branches of the public patrimony, will produce more and be better collected than heretofore; and the public is a gainer of upwards of _l._ _per annum_ by this disinterested bounty of his majesty. the civil list, thus liquidated, together with the four millions and three quarters, interest of the national debt, and the two millions and a quarter produced from the sinking fund, make up the seven millions and three quarters _per annum_, neat money, which were before stated to be the annual produce of our _perpetual_ taxes; besides the immense, though uncertain, sums arising from the _annual_ taxes on land and malt, but which, at an average, may be calculated at more than two millions and a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the charge of collecting, which are raised yearly on the people of this country, and returned into the king's exchequer, amount to upwards of ten millions sterling. [footnote f: stat. geo. iii. c. .] the expences defrayed by the civil list are those that in any shape relate to civil government; as, the expenses of the houshold; all salaries to officers of state, to the judges, and every of the king's servants; the appointments to foreign embassadors; the maintenance of the royal family; the king's private expenses, or privy purse; and other very numerous outgoings, as secret service money, pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that purpose, that application has been made to parliament to discharge the debts contracted on the civil list; as particularly in , when one million was granted for that purpose by the statute geo. i. c. . the civil list is indeed properly the whole of the king's revenue in his own distinct capacity; the rest being rather the revenue of the public, or it's creditors, though collected, and distributed again, in the name and by the officers of the crown: it now standing in the same place, as the hereditary income did formerly; and, as that has gradually diminished, the parliamentary appointments have encreased. the whole revenue of queen elizabeth did not amount to more than _l._ a year[g]: that of king charles i was[h] _l._ and the revenue voted for king charles ii was[i] _l._ though it never in fact amounted to quite so much[k]. but it must be observed, that under these sums were included all manner of public expenses, among which lord clarendon in his speech to the parliament computed that the charge of the navy and land forces amounted annually to _l._ which was ten times more than before the former troubles[l]. the same revenue, subject to the same charges, was settled on on [transcriber's note: duplicate word] king james ii[m]: but by the encrease of trade, and more frugal management, it amounted on an average to a million and half _per annum_, (besides other additional customs, granted by parliament[n], which produced an annual revenue of _l._) out of which his fleet and army were maintained at the yearly expense of[o] _l._ after the revolution, when the parliament took into it's own hands the annual support of the forces, both maritime and military, a civil list revenue was settled on the new king and queen, amounting, with the hereditary duties, to _l._ _per annum_[p]; and the same was continued to queen anne and king george i[q]. that of king george ii, we have seen, was nominally augmented to[r] _l._ and in fact was considerably more. but that of his present majesty is expressly limited to that sum; and, by reason of the charges upon it, amounts at present to little more than _l._ and upon the whole it is doubtless much better for the crown, and also for the people, to have the revenue settled upon the modern footing rather than the antient. for the crown; because it is more certain, and collected with greater ease: for the people; because they are now delivered from the feodal hardships, and other odious branches of the prerogative. and though complaints have sometimes been made of the encrease of the civil list, yet if we consider the sums that have been formerly granted, the limited extent under which it is now established, the revenues and prerogatives given up in lieu of it by the crown, and (above all) the diminution of the value of money compared with what it was worth in the last century, we must acknowlege these complaints to be void of any rational foundation; and that it is impossible to support that dignity, which a king of great britain should maintain, with an income in any degree less than what is now established by parliament. [footnote g: lord clar. continuation. .] [footnote h: com. journ. sept. .] [footnote i: _ibid._] [footnote k: _ibid._ jun. . lord clar. _ibid._] [footnote l: _ibid._ .] [footnote m: stat. jac. ii. c. .] [footnote n: stat. jac. ii. c. & .] [footnote o: com. journ. mar. mar. .] [footnote p: _ibid._ mar. .] [footnote q: _ibid._ mar. . aug. .] [footnote r: stat. geo. ii. c. .] this finishes our enquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and extraordinary. we have therefore now chalked out all the principal outlines of this vast title of the law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and points of view. but, before we intirely dismiss this subject, it may not be improper to take a short comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood in former days, and as it stands at present. and we cannot but observe, that most of the laws for ascertaining, limiting, and restraining this prerogative have been made within the compass of little more than a century past; from the petition of right in car. i. to the present time. so that the powers of the crown are now to all appearance greatly curtailed and diminished since the reign of king james the first: particularly, by the abolition of the star chamber and high commission courts in the reign of charles the first, and by the disclaiming of martial law, and the power of levying taxes on the subject, by the same prince: by the disuse of forest laws for a century past: and by the many excellent provisions enacted under charles the second; especially, the abolition of military tenures, purveyance, and preemption; the _habeas corpus_ act; and the act to prevent the discontinuance of parliaments for above three years: and, since the revolution, by the strong and emphatical words in which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial, since turned into septennial, elections; by the exclusion of certain officers from the house of commons; by rendering the seats of the judges permanent, and their salaries independent; and by restraining the king's pardon from operating on parliamentary impeachments. besides all this, if we consider how the crown is impoverished and stripped of all it's antient revenues, so that it greatly depends on the liberality of parliament for it's necessary support and maintenance, we may perhaps be led to think, that the ballance is enclined pretty strongly to the popular scale, and that the executive magistrate has neither independence nor power enough left, to form that check upon the lords and commons, which the founders of our constitution intended. but, on the other hand, it is to be considered, that every prince, in the first parliament after his accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his life; and has never any occasion to apply to parliament for supplies, but upon some public necessity of the whole realm. this restores to him that constitutional independence, which at his first accession seems, it must be owned, to be wanting. and then, with regard to power, we may find perhaps that the hands of government are at least sufficiently strengthened; and that an english monarch is now in no danger of being overborne by either the nobility or the people. the instruments of power are not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous and invidious reflections; but they are not the weaker upon that account. in short, our national debt and taxes (besides the inconveniences before-mentioned) have also in their natural consequences thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable parts of the prerogative; and by an unaccountable want of foresight established this system in their stead. the entire collection and management of so vast a revenue, being placed in the hands of the crown, have given rise to such a multitude of new officers, created by and removeable at the royal pleasure, that they have extended the influence of government to every corner of the nation. witness the commissioners, and the multitude of dependents on the customs, in every port of the kingdom; the commissioners of excise, and their numerous subalterns, in every inland district; the postmasters, and their servants, planted in every town, and upon every public road; the commissioners of the stamps, and their distributors, which are full as scattered and full as numerous; the officers of the salt duty, which, though a species of excise and conducted in the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the commissioners of hackney coaches; all which are either mediately or immediately appointed by the crown, and removeable at pleasure without any reason assigned: these, it requires but little penetration to see, must give that power, on which they depend for subsistence, an influence most amazingly extensive. to this may be added the frequent opportunities of conferring particular obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions, which will greatly encrease this influence; and that over those persons whose attachment, on account of their wealth, is frequently the most desirable. all this is the natural, though perhaps the unforeseen, consequence of erecting our funds of credit, and to support them establishing our present perpetual taxes: the whole of which is entirely new since the restoration in ; and by far the greatest part since the revolution in . and the same may be said with regard to the officers in our numerous army, and the places which the army has created. all which put together gives the executive power so persuasive an energy with respect to the persons themselves, and so prevailing an interest with their friends and families, as will amply make amends for the loss of external prerogative. but, though this profusion of offices should have no effect on individuals, there is still another newly acquired branch of power; and that is, not the influence only, but the force of a disciplined army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown, officered by the crown, commanded by the crown. they are kept on foot it is true only from year to year, and that by the power of parliament: but during that year they must, by the nature of our constitution, if raised at all, be at the absolute disposal of the crown. and there need but few words to demonstrate how great a trust is thereby reposed in the prince by his people. a trust, that is more than equivalent to a thousand little troublesome prerogatives. add to all this, that, besides the civil list, the immense revenue of seven millions sterling, which is annually paid to the creditors of the publick, or carried to the sinking fund, is first deposited in the royal exchequer, and thence issued out to the respective offices of payment. this revenue the people can never refuse to raise, because it is made perpetual by act of parliament: which also, when well considered, will appear to be a trust of great delicacy and high importance. upon the whole therefore i think it is clear, that, whatever may have become of the _nominal_, the _real_ power of the crown has not been too far weakened by any transactions in the last century. much is indeed given up; but much is also acquired. the stern commands of prerogative have yielded to the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust of an immense perpetual revenue. when, indeed, by the free operation of the sinking fund, our national debts shall be lessened; when the posture of foreign affairs, and the universal introduction of a well planned and national militia, will suffer our formidable army to be thinned and regulated; and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. but, till that shall happen, it will be our especial duty, as good subjects and good englishmen, to reverence the crown, and yet guard against corrupt and servile influence from those who are intrusted with it's authority; to be loyal, yet free; obedient, and yet independent: and, above every thing, to hope that we may long, very long, continue to be governed by a sovereign, who, in all those public acts that have personally proceeded from himself, hath manifested the highest veneration for the free constitution of britain; hath already in more than one instance remarkably strengthened it's outworks; and will therefore never harbour a thought, or adopt a persuasion, in any the remotest degree detrimental to public liberty. chapter the ninth. of subordinate magistrates. in a former chapter of these commentaries[a] we distinguished magistrates into two kinds; supreme, or those in whom the sovereign power of the state resides; and subordinate, or those who act in an inferior secondary sphere. we have hitherto considered the former kind only, namely, the supreme legislative power or parliament, and the supreme executive power, which is the king: and are now to proceed to enquire into the rights and duties of the principal subordinate magistrates. [footnote a: ch. . pag. .] and herein we are not to investigate the powers and duties of his majesty's great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because i do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except that the secretaries of state are allowed the power of commitment, in order to bring offenders to trial[b]. neither shall i here treat of the office and authority of the lord chancellor, or the other judges of the superior courts of justice; because they will find a more proper place in the third part of these commentaries. nor shall i enter into any minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other magistrates of particular corporations; because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. but the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and overseers of the poor. in treating of all which i shall enquire into, first, their antiquity and original; next, the manner in which they are appointed and may be removed; and, lastly, their rights and duties. and first of sheriffs. [footnote b: leon. . leon. . comb. . mod. . salk. .] i. the sheriff is an officer of very great antiquity in this kingdom, his name being derived from two saxon words, shire reeve, the bailiff or officer of the shire. he is called in latin _vice-comes_, as being the deputy of the earl or _comes_; to whom the custody of the shire is said to have been committed at the first division of this kingdom into counties. but the earls in process of time, by reason of their high employments and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden[c]; reserving to themselves the honour, but the labour was laid on the sheriff. so that now the sheriff does all the king's business in the county; and though he be still called _vice-comes_, yet he is entirely independent of, and not subject to the earl; the king by his letters patent committing _custodiam comitatus_ to the sheriff, and him alone. [footnote c: dalton of sheriffs, c. .] sheriffs were formerly chosen by the inhabitants of the several counties. in confirmation of which it was ordained by statute edw. i. c. . that the people should have election of sheriffs in every shire, where the shrievalty is not of inheritance. for antiently in some counties, particularly on the borders, the sheriffs were hereditary; as i apprehend they are in scotland, and in the county of westmorland, to this day: and the city of london has also the inheritance of the shrievalty of middlesex vested in their body by charter[d]. the reason of these popular elections is assigned in the same statute, c. . "that the commons might chuse such as would not be a burthen to them." and herein appears plainly a strong trace of the democratical part of our constitution; in which form of government it is an indispensable requisite, that the people should chuse their own magistrates[e]. this election was in all probability not absolutely vested in the commons, but required the royal approbation. for in the gothic constitution, the judges of their county courts (which office is executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their election was thus managed; the people, or _incolae territorii_, chose _twelve_ electors, and they nominated _three_ persons, _ex quibus rex unum confirmabat_[f]. but, with us in england, these popular elections, growing tumultuous, were put an end to by the statute edw. ii. st. . which enacted, that the sheriffs should from thenceforth be assigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust might with confidence be reposed. by statutes edw. iii. c. . and hen. vi. c. . the chancellor, treasurer, _chief_ justices, and _chief_ baron, are to make this election; and that on the morrow of all souls in the exchequer. but the custom now is (and has been at least ever since the time of fortescue[g], who was chief justice and chancellor to henry the sixth) that _all_ the judges, and certain other great officers, meet in the exchequer chamber on the morrow of all souls yearly, (which day is now altered to the morrow of st. martin by the act for abbreviating michaelmas term) and then and there nominate three persons to the king, who afterwards appoints one of them to be sheriff. this custom, of the _twelve_ judges nominating _three_ persons, seems borrowed from the gothic constitution beforementioned; with this difference, that among the goths the twelve nominors were first elected by the people themselves. and this usage of ours at it's first introduction, i am apt to believe, was founded upon some statute, though not now to be found among our printed laws: first, because it is materially different from the directions of all the statutes beforementioned; which it is hard to conceive that the judges would have countenanced by their concurrence, or that fortescue would have inserted in his book, unless by the authority of some statute: and also, because a statute is expressly referred to in the record, which sir edward coke tells us[h] he transcribed from the council book of mar. hen. vi. and which is in substance as follows. the king had of his own authority appointed a man sheriff of lincolnshire, which office he refused to take upon him: whereupon the opinions of the judges were taken, what should be done in this behalf. and the two chief justices, sir john fortescue and sir john prisot, delivered the unanimous opinion of them all; "that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the _statute_; that the person refusing was liable to no fine for disobedience, as if he had been one of the _three_ persons chosen according to the tenor of the _statute_; that they would advise the king to have recourse to the _three_ persons that were chosen according to the _statute_, or that some other thrifty man be intreated to occupy the office for this year; and that, the next year, to eschew such inconveniences, the order of the _statute_ in this behalf made be observed." but, notwithstanding this unanimous resolution of all the judges of england, thus entered in the council book, some of our writers[i] have affirmed, that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. this is grounded on a very particular case in the fifth year of queen elizabeth, when, by reason of the plague, there was no michaelmas term kept at westminster; so that the judges could not meet there _in crastino animarum_ to nominate the sheriffs: whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list[k]. and this case, thus circumstanced, is the only precedent in our books for the making these extraordinary sheriffs. it is true, the reporter adds, that it was held that the queen by her prerogative might make a sheriff without the election of the judges, _non obstante aliquo statuto in contrarium_: but the doctrine of _non obstante_'s, which sets the prerogative above the laws, was effectually demolished by the bill of rights at the revolution, and abdicated westminster-hall when king james abdicated the kingdom. so that sheriffs cannot now be legally appointed, otherwise than according to the known and established law. [footnote d: rep. .] [footnote e: montesq. sp. l. b. . c. .] [footnote f: stiernhook _de jure goth._ _l._ . _c._ .] [footnote g: _de l.l._ _c._ .] [footnote h: inst. .] [footnote i: jenkins. .] [footnote k: dyer .] sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year; and yet it hath been said[l] that a sheriff may be appointed _durante bene placito_, or during the king's pleasure; and so is the form of the royal writ[m]. therefore, till a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king; in which last case it was usual for the successor to send a new writ to the old sheriff[n]: but now by statute ann. st. . c. . all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. we may farther observe, that by statute ric. ii. c. . no man, that has served the office of sheriff for one year, can be compelled to serve the same again within three years after. [footnote l: rep. .] [footnote m: dalt. of sheriffs. .] [footnote n: dalt. .] we shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. these are either as a judge, as the keeper of the king's peace, as a ministerial officer of the superior courts of justice, or as the king's bailiff. in his judicial capacity he is to hear and determine all causes of forty shillings value and under, in his county court, of which more in it's proper place: and he has also judicial power in divers other civil cases[o]. he is likewise to decide the elections of knights of the shire, (subject to the control of the house of commons) of coroners, and of verderors; to judge of the qualification of voters, and to return such as he shall determine to be duly elected. [footnote o: dalt. c. .] as the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office[p]. he may apprehend, and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one in a recognizance to keep the king's peace. he may, and is bound _ex officio_ to, pursue and take all traitors, murderers, felons, and other misdoers, and commit them to gaol for safe custody. he is also to defend his county against any of the king's enemies when they come into the land: and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him; which is called the _posse comitatus_, or power of the county[q]: which summons every person above fifteen years old, and under the degree of a peer, is bound to attend upon warning[r], under pain of fine and imprisonment[s]. but though the sheriff is thus the principal conservator of the peace in his county, yet, by the express directions of the great charter[t], he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or, in other words, to try any criminal offence. for it would be highly unbecoming, that the executioners of justice should be also the judges; should impose, as well as levy, fines and amercements; should one day condemn a man to death, and personally execute him the next. neither may he act as an ordinary justice of the peace during the time of his office[u]: for this would be equally inconsistent; he being in many respects the servant of the justices. [footnote p: roll. rep. .] [footnote q: dalt. c. .] [footnote r: lamb. eiren. .] [footnote s: stat. hen. v. c. .] [footnote t: _cap._ .] [footnote u: stat. mar. st. . c. .] in his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. in the commencement of civil causes, he is to serve the writ, to arrest, and to take bail; when the cause comes to trial, he must summon and return the jury; when it is determined, he must see the judgment of the court carried into execution. in criminal matters, he also arrests and imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. as the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so his county is frequently called in the writs: a word introduced by the princes of the norman line; in imitation of the french, whose territory is divided into bailiwicks, as that of england into counties[w]. he must seise to the king's use all lands devolved to the crown by attainder or escheat; must levy all fines and forfeitures; must seise and keep all waifs, wrecks, estrays, and the like, unless they be granted to some subject; and must also collect the king's rents within his bailiwick, if commanded by process from the exchequer[x]. [footnote w: fortesc. _de l.l._ c. .] [footnote x: dalt. c. .] to execute these various offices, the sheriff has under him many inferior officers; an under-sheriff, bailiffs, and gaolers; who must neither buy, sell, nor farm their offices, on forfeiture of _l._[y] [footnote y: stat. geo. i. c. .] the under-sheriff usually performs all the duties of the office; a very few only excepted, where the personal presence of the high-sheriff is necessary. but no under-sheriff shall abide in his office above one year[z]; and if he does, by statute hen. vi. c. . he forfeits _l._ a very large penalty in those early days. and no under-sheriff or sheriff's officer shall practice as an attorney, during the time he continues in such office[a]: for this would be a great inlet to partiality and oppression. but these salutary regulations are shamefully evaded, by practising in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs: by reason of which, says dalton[b], the under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive, and it may be well feared that many of them do deceive, both the king, the high-sheriff, and the county. [footnote z: stat. edw. iii. c. .] [footnote a: stat. hen. v. c. .] [footnote b: of sheriffs, c. .] bailiffs, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. bailiffs of hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein; to summon juries; to attend the judges and justices at the assises, and quarter sessions; and also to execute writs and process in the several hundreds. but, as these are generally plain men, and not thoroughly skilful in this latter part of their office, that of serving writs, and making arrests and executions, it is now usual to join special bailiffs with them; who are generally mean persons employed by the sheriffs on account only of their adroitness and dexterity in hunting and seising their prey. the sheriff being answerable for the misdemesnors of these bailiffs, they are therefore usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs; which the common people have corrupted into a much more homely appellation. gaolers are also the servants of the sheriff, and he must be responsible for their conduct. their business is to keep safely all such persons as are committed to them by lawful warrant: and, if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a civil case, to the party injured[c]. and to this end the sheriff must[d] have lands sufficient within the county to answer the king and his people. the abuses of goalers and sheriff's officers toward the unfortunate persons in their custody are well restrained and guarded against by statute geo. ii. c. . [footnote c: dalt. c. . rep. .] [footnote d: stat. & car. ii. c. .] the vast expense, which custom had introduced in serving the office of high-sheriff, was grown such a burthen to the subject, that it was enacted, by statute & car. ii. c. . that no sheriff should keep any table at the assises, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery; yet, for the sake of safety and decency, he may not have less than twenty men in england and twelve in wales; upon forfeiture, in any of these cases, of _l._ ii. the coroner's is also a very antient office at the common law. he is called coroner, _coronator_, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned[e]. and in this light the lord chief justice of the king's bench is the principal coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of the realm[f]. but there are also particular coroners for every county of england; usually four, but sometimes six, and sometimes fewer[g]. this officer[h] is of equal antiquity with the sheriff; and was ordained together with him to keep the peace, when the earls gave up the wardship of the county. [footnote e: inst. . inst. .] [footnote f: rep. .] [footnote g: f.n.b. .] [footnote h: mirror, c. . §. .] he is still chosen by all the freeholders in the county court, as by the policy of our antient laws the sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters that affected the liberty of the people[i]; and as verderors of the forests still are, whose business it is to stand between the prerogative and the subject in the execution of the forest laws. for this purpose there is a writ at common law _de coronatore eligendo_[k]: in which it is expressly commanded the sheriff, "_quod talem eligi faciat, qui melius et sciat, et velit, et possit, officio illi intendere_." and, in order to effect this the more surely, it was enacted by the statute of westm. i[l], that none but lawful and discreet knights should be chosen. but it seems it is now sufficient if a man have lands enough to be made a knight, whether he be really knighted or not[m]: and there was an instance in the edw. iii. of a man being removed from this office, because he was only a merchant[n]. the coroner ought also to have estate sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misbehaviour[o]: and if he have not enough to answer, his fine shall be levyed on the county, as a punishment for electing an insufficient officer[p]. now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and get into low and indigent hands: so that, although formerly no coroner would condescend to be paid for serving his country, and they were by the aforesaid statute of westm. i. expressly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their attendance by the statute hen. vii. c. . which sir edward coke complains of heavily[q]; though they have since his time been much enlarged[r]. [footnote i: inst. .] [footnote k: f.n.b. .] [footnote l: edw. i. c. .] [footnote m: f.n.b. , .] [footnote n: inst. .] [footnote o: f.n.b. , .] [footnote p: mirr. c. . §. . inst. .] [footnote q: inst. .] [footnote r: stat. geo. ii. c. .] the coroner is chosen for life: but may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king's writ _de coronatore exonerando_, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it[s]. and by the statute geo. ii. c. . extortion, neglect, or misbehaviour, are also made causes of removal. [footnote s: f.n.b. , .] the office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but principally judicial. this is in great measure ascertained by statute edw. i. _de officio coronatoris_; and consists, first, in enquiring (when any person is slain or dies suddenly) concerning the manner of his death. and this must be "_super visum corporis_[t];" for, if the body be not found, the coroner cannot sit[u]. he must also sit at the very place where the death happened; and his enquiry is made by a jury from four, five, or six of the neighbouring towns, over whom he is to preside. if any be found guilty by this inquest of murder, he is to commit to prison for further trial, and is also to enquire concerning their lands, goods and chattels, which are forfeited thereby: but, whether it be murder or not, he must enquire whether any deodand has accrued to the king, or the lord of the franchise, by this death: and must certify the whole of this inquisition to the court of king's bench, or the next assises. another branch of his office is to enquire concerning shipwrecks; and certify whether wreck or not, and who is in possession of the goods. concerning treasure trove, he is also to enquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure; "and that may be well perceived (saith the old statute of edw. i.) where one liveth riotously, haunting taverns, and hath done so of long time:" whereupon he might be attached, and held to bail, upon this suspicion only. [footnote t: inst. .] [footnote u: thus, in the gothic constitution, before any fine was payable by the neighbourhood, for the slaughter of a man therein, "_de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum, quam vulneratum et caesum. potest enim homo etiam ex alia causa subito mori_." stiernhook _de jure gothor._ _l._ . _c._ .] the ministerial office of the coroner is only as the sheriff's substitute. for when just exception can be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs[w]. [footnote w: inst. .] iii. the next species of subordinate magistrates, whom i am to consider, are justices of the peace; the principal of whom is the _custos rotulorum_, or keeper of the records of the county. the common law hath ever had a special care and regard for the conservation of the peace; for peace is the very end and foundation of civil society. and therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. of these some had, and still have, this power annexed to other offices which they hold; others had it merely by itself, and were thence named _custodes_ or _conservatores pacis_. those that were so _virtute officii_ still continue; but the latter sort are superseded by the modern justices. the kings majesty[x] is, by his office and dignity royal, the principal conservator of the peace within all his dominions; and may give authority to any other to see the peace kept, and to punish such as break it: hence it is usually called the king's peace. the lord chancellor or keeper, the lord treasurer, the lord high steward of england, the lord mareschal, and lord high constable of england (when any such officers are in being) and all the justices of the court of king's bench (by virtue of their offices) and the master of the rolls (by prescription) are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it[y]: the other judges are only so in their own courts. the coroner is also a conservator of the peace within his own county[z]; as is also the sheriff[a]; and both of them may take a recognizance or security for the peace. constables, tythingmen, and the like, are also conservators of the peace within their own jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it[b]. [footnote x: lambard. eirenarch. .] [footnote y: lamb. .] [footnote z: britton. .] [footnote a: f.n.b. .] [footnote b: lamb. .] those that were, without any office, simply and merely conservators of the peace, were chosen by the freeholders in full county court before the sheriff; the writ for their election directing them to be chosen "_de probioribus et melioribus in comitatu suo in custodes pacis_[c]." but when queen isabel, the wife of edward ii, had contrived to depose her husband by a forced resignation of the crown, and had set up his son edward iii in his place; this, being a thing then without example in england, it was feared would much alarm the people; especially as the old king was living, though hurried about from castle to castle; till at last he met with an untimely death. to prevent therefore any risings, or other disturbance of the peace, the new king sent writs to all the sheriffs in england, the form of which is preserved by thomas walsingham[d], giving a plausible account of the manner of his obtaining the crown; to wit, that it was done _ipsius patris beneplacito_: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on pain and peril of disinheritance and loss of life and limb. and in a few weeks after the date of these writs, it was ordained in parliament[e], that, for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil, or barretors in the country, should be _assigned_ to keep the peace. and in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king[f]; this assignment being construed to be by the king's commission[g]. but still they were called only conservators, wardens, or keepers of the peace, till the statute edw. iii. c. . gave them the power of trying felonies; and then they acquired the more honorable appellation of justices[h]. [footnote c: lamb. .] [footnote d: hist. _a.d._ .] [footnote e: stat. edw. iii. c. .] [footnote f: lamb. .] [footnote g: stat. edw. iii. c. . and edw. iii. st. . c. .] [footnote h: lamb. .] these justices are appointed by the king's special commission under the great seal, the form of which was settled by all the judges, _a.d._ [i]. this appoints them all[k], jointly and severally, to keep the peace, and any two or more of them to enquire of and determine felonies, and other misdemesnors: in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence; the words of the commission running thus, "_quorum aliquem vestrum, a. b. c. d. &c. unum esse volumus_;" whence the persons so named are usually called justices of the _quorum_. and formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the _quorum_; but now the practice is to advance almost all of them to that dignity, naming them all over again in the _quorum_ clause, except perhaps only some one inconsiderable person for the sake of propriety: and no exception is now allowable, for not expressing in the form of warrants, &c, that the justice who issued them is of the _quorum_[l]. [footnote i: lamb. .] [footnote k: see the form itself, lamb. . burn. tit. justices, §. .] [footnote l: stat. geo. ii. c. .] touching the number and qualifications of these justices; it was ordained by statute edw. iii. c. . that _two_, or _three_, of the best reputation in each county shall be assigned to be keepers of the peace. but these being found rather too few for that purpose, it was provided by statute edw. iii. c. . that one lord, and three, or four, of the most worthy men in the county, with some learned in the law, shall be made justices in every county. but afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute ric. ii. c. . and ric ii. c. . to restrain them at first to six, and afterwards to eight only. but this rule is now disregarded, and the cause seems to be (as lambard observed long ago[m]) that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also (and very reasonably) their encrease to a larger number. and, as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county: and the statute ric. ii. c. . orders them to be of the most sufficient knights, esquires, and gentlemen of the law. also by statute hen. v. st. . c. . and st. . c. . they must be resident in their several counties. and because, contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute hen. vi. c. . that no justice should be put in commission, if he had not lands to the value of _l._ _per annum_. and, the rate of money being greatly altered since that time, it is now enacted by statute geo. ii. c. . that every justice, except as is therein excepted, shall have _l._ _per annum_ clear of all deductions; and, if he acts without such qualification, he shall forfeit _l._ which[n] is almost an equivalent to the _l._ _per annum_ required in henry the sixth's time: and of this qualification[o] the justice must now make oath. also it is provided by the act geo. ii. that no practising attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace. [footnote m: lamb. .] [footnote n: see bishop fleetwood's calculations in his _chronicon pretiosum_.] [footnote o: stat. geo. ii. c. .] as the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, . by the demise of the crown; that is, in six months after[p]. . by express writ under the great seal[q], discharging any particular person, from being any longer justice. . by superseding the commission by writ of _supersedeas_, which suspends the power of all the justices, but does not totally destroy it; seeing it may be revived again by another writ, called a _procedendo_. . by a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. . by accession of the office of sheriff or coroner[r]. formerly it was thought, that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no longer answering the description of the commission: but now[s] it is provided, that notwithstanding a new title of dignity, the justice on whom it is conferred shall still continue a justice. [footnote p: stat. ann. c. .] [footnote q: lamb. .] [footnote r: stat. mar. st. . c. .] [footnote s: stat. edw. vi. c. .] the power, office, and duty of a justice of the peace depend on his commission, and on the several statutes, which have created objects of his jurisdiction. his commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. it also empowers any two or more of them to hear and determine all felonies and other offences; which is the ground of their jurisdiction at sessions, of which more will be said in it's proper place. and as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office; they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. and therefore, if a well meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shewn to him in the courts of law; and there are many statutes made to protect him in the upright discharge of his office[t]: which, among other privileges, prohibit such justices from being sued for any oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends. but, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury, are entitled to double costs. [footnote t: stat. jac. i. c. . jac. i. c. . geo. ii. c. .] it is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. i must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprize almost every object of the justices' jurisdiction: and in the mean time recommend to the student the perusal of mr lambard's _eirenarcha_, and dr burn's _justice of the peace_; wherein he will find every thing relative to this subject, both in antient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method. i shall next consider some officers of lower rank than those which have gone before, and of more confined jurisdiction; but still such as are universally in use through every part of the kingdom. iv. fourthly, then, of the constable. the word constable is frequently said to be derived from the saxon, koning-staple, and to signify the support of the king. but, as we borrowed the name as well as the office of constable from the french, i am rather inclined to deduce it, with sir h. spelman and dr cowel, from that language, wherein it is plainly derived from the latin _comes stabuli_, an officer well known in the empire; so called because, like the great constable of france, as well as the lord high constable of england, he was to regulate all matters of chivalry, tilts, turnaments, and feats of arms, which were performed on horseback. this great office of lord high constable hath been disused in england, except only upon great and solemn occasions, as the king's coronation and the like, ever since the attainder of stafford duke of buckingham under king henry viii; as in france it was suppressed about a century after by an edict of louis xiii[u]: but from his office, says lambard[w], this lower constableship was at first drawn and fetched, and is as it were a very finger of that hand. for the statute of winchester[x], which first appoints them, directs that, for the better keeping of the peace, two constables in every hundred and franchise shall inspect all matters relating to _arms_ and _armour_. [footnote u: philips's life of pole. ii. .] [footnote w: of constables, .] [footnote x: edw. i. c. .] constables are of two sorts, high constables, and petty constables. the former were first ordained by the statute of winchester, as before-mentioned; and are appointed at the court leets of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them[y]. the petty constables are inferior officers in every town and parish, subordinate to the high constable of the hundred, first instituted about the reign of edward iii[z]. these petty constables have two offices united in them; the one antient, the other modern. their antient office is that of headborough, tithing-man, or borsholder; of whom we formerly spoke[a], and who are as antient as the time of king alfred: their more modern office is that of constable merely; which was appointed (as was observed) so lately as the reign of edward iii, in order to assist the high constable[b]. and in general the antient headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though not so generally, but that in many places they still continue distinct officers from the constable. they are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices of the peace[c]. [footnote y: salk. .] [footnote z: spelm. gloss. .] [footnote a: pag. .] [footnote b: lamb. .] [footnote c: stat. & car. ii. c. .] the general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts; and to that purpose they are armed with very large powers, of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. one of their principal duties, arising from the statute of winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. ward, guard, or _custodia_, is chiefly intended of the day time, in order to apprehend rioters, and robbers on the highways; the manner of doing which is left to the discretion of the justices of the peace and the constable[d], the hundred being however answerable for all robberies committed therein, by day light, for having kept negligent guard. watch is properly applicable to the night only, (being called among our teutonic ancestors _wacht_ or _wacta_[e]) and it begins at the time when ward ends, and ends when that begins; for, by the statute of winchester, in walled towns the gates shall be closed from sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of themselves. the constable may appoint watchmen at his discretion, regulated by the custom of the place; and these, being his deputies, have for the time being the authority of their principal. but, with regard to the infinite number of other minute duties, that are laid upon constables by a diversity of statutes, i must again refer to mr lambard and dr burn; in whose compilations may be also seen, what duties belong to the constable or tything-man indifferently, and what to the constable only: for the constable may do whatever the tything-man may; but it does not hold _e converso_; for the tithing-man has not an equal power with the constable. [footnote d: dalt. just. c. .] [footnote e: _excubias et explorationes quas wactas vocant._ _capitular. hludovic. pii._ _cap._ . _a.d._ .] v. we are next to consider the surveyors of the highways. every parish is bound of common right to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. from this burthen no man was exempt by our antient laws, whatever other immunities he might enjoy: this being part of the _trinoda necessitas_, to which every man's estate was subject; viz. _expeditio contra hostem, arcium constructio, et pontium reparatio_: for, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the roman law, _ad instructiones reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis meritis, cessare oportet_[f]. and indeed now, for the most part, the care of the roads only seems to be left to parishes; that of bridges being in great measure devolved upon the county at large, by statute hen. viii. c. . if the parish neglected these repairs, they might formerly, as they may still, be indicted for such their neglect: but it was not then incumbent on any particular officer to call the parish together, and set them upon this work; for which reason by the statute & ph. & m. c. . surveyors of the highways were ordered to be chosen in every parish[g]. [footnote f: _c._ . . .] [footnote g: this office, mr dalton (just. cap. .) says, exactly answers that of the _curatores viarum_ of the romans: but, i should guess that theirs was an office of rather more dignity and authority than ours, not only from comparing the method of making and mending the roman ways with those of our country parishes; but also because one thermus, who was the curator of the flaminian way, was candidate for the consulship with julius caesar. (_cic. ad attic._ _l._ . _ep._ .)] these surveyors were originally, according to the statute of philip and mary, to be appointed by the constable and churchwardens of the parish; but now[h] they are constituted by two neighbouring justices, out of such substantial inhabitants as have either _l._ _per annum_ of their own, or rent _l._ a year, or are worth in personal estate _l._ [footnote h: stat. w. & m. c. .] their office and duty consists in putting in execution a variety of statutes for the repairs of the highways; that is, of ways leading from one town to another: by which it is enacted, . that they may remove all annoyances in the highways, or give notice to the owner to remove them; who is liable to penalties on noncompliance. . they are to call together all the inhabitants of the parish, six days in every year, to labour in repairing the highways; all persons keeping draughts, or occupying lands, being obliged to send a team for every draught, and for every _l._ a year, which they keep or occupy; and all other persons to work or find a labourer. the work must be completed before harvest; as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. and every cartway must be made eight feet wide at the least[i]; and may be increased by the quarter sessions to the breadth of four and twenty feet. . the surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions. . in case the personal labour of the parish be not sufficient, the surveyors, with the consent of the quarter sessions, may levy a rate (not exceeding _d._ in the pound) on the parish, in aid of the personal duty; for the due application of which they are to account upon oath. as for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, these depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law. [footnote i: this, by the laws of the twelve tables at rome, was the standard for roads that were straight; but, in winding ways, the breadth was directed to be sixteen feet. _ff._ . . .] vi. i proceed therefore, lastly, to consider the overseers of the poor; their original, appointment, and duty. the poor of england, till the time of henry viii, subsisted entirely upon private benevolence, and the charity of welldisposed christians. for, though it appears by the mirrour[k], that by the common law the poor were to be "sustained by parsons, rectors of the church, and the parishioners; so that none of them dye for default of sustenance;" and though by the statutes ric. ii. c. . and hen. vii. c. . the poor are directed to be sustained in the cities or towns wherein they were born, or such wherein they had dwelt for three years (which seem to be the first rudiments of parish settlements) yet till the statute hen. viii. c. . i find no compulsory method chalked out for this purpose: but the poor seem to have been left to such relief as the humanity of their neighbours would afford them. the monasteries were, in particular, their principal resource; and, among other bad effects which attended the monastic institutions, it was not perhaps one of the least (though frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. but, upon the total dissolution of these, the inconvenience of thus encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance of statutes were made in the reign of king henry the eighth, for providing for the poor and impotent; which, the preambles to some of them recite, had of late years _strangely_ increased. these poor were principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and therefore able, but not willing, to exercise any honest employment. to provide in some measure for both of these, in and about the metropolis, his son edward the sixth founded three royal hospitals; christ's, and st. thomas's, for the relief of the impotent through infancy or sickness; and bridewell for the punishment and employment of the vigorous and idle. but these were far from being sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other fruitless experiments, by statute eliz. c. . overseers of the poor were appointed in every parish. [footnote k: c. . §. .] by virtue of the statute last mentioned, these overseers are to be nominated yearly in easter-week, or within one month after, by two justices dwelling near the parish. they must be substantial householders, and so expressed to be in the appointment of the justices[l]. [footnote l: lord raym. .] their office and duty, according to the same statute, are principally these: first, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work: and, secondly, to provide work for such as are able, and cannot otherwise get employment: but this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. however, for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of the parish, by the same act of parliament; which has been farther explained and enforced by several subsequent statutes. the two great objects of this statute seem to have been, . to relieve the impotent poor, and them only. . to find employment for such as are able to work: and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common work-house; a practice which tends to destroy all domestic connexions (the only felicity of the honest and industrious labourer) and to put the sober and diligent upon a level, in point of their earnings, with those who are dissolute and idle. whereas, if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity; if no children were to be removed from their parents, but such as are brought up in rags and idleness; and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labour;--a spirit of chearful industry would soon diffuse itself through every cottage; work would become easy and habitual, when absolutely necessary to their daily subsistence; and the most indigent peasant would go through his task without a murmur, if assured that he and his children (when incapable of work through infancy, age, or infirmity) would then, and then only, be intitled to support from his opulent neighbours. this appears to have been the plan of the statute of queen elizabeth; in which the only defect was confining the management of the poor to small, parochial, districts; which are frequently incapable of furnishing proper work, or providing an able director. however, the laborious poor were then at liberty to seek employment wherever it was to be had; none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work; and those places of settlement being only such where they were born, or had made their abode, originally for three years[m], and afterwards (in the case of vagabonds) for one year only[n]. [footnote m: stat. hen. vii. c. . edw. vi. c. . edw. vi. c. . eliz. c. .] [footnote n: stat. eliz. c. .] after the restoration, a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their number, by confining them all to their respective districts; has given birth to the intricacy of our poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in consequence, has created an infinity of expensive lawsuits between contending neighbourhoods, concerning those settlements and removals. by the statute & car. ii. c. . a legal settlement was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days; within which period all intruders were made removeable from any parish by two justices of the peace, unless they settled in a tenement of the annual value of _l._ the frauds, naturally consequent upon this provision, which gave a settlement by so short a residence, produced the statute jac. ii. c. . which directed notice in writing to be delivered to the parish officers, before a settlement could be gained by such residence. subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given; and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new regulations, suggested the necessity of a remedy. and the doctrine of certificates was invented, by way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted cases; which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had. the law of settlements may be therefore now reduced to the following general heads; or, a settlement in a parish may be acquired, . by birth; which is always _prima facie_ the place of settlement, until some other can be shewn[o]. this is also always the place of settlement of a bastard child; for a bastard, having in the eye of the law no father, cannot be referred to _his_ settlement, as other children may[p]. but, in legitimate children, though the place of birth be _prima facie_ the settlement, yet it is not conclusively so; for there are, . settlements by parentage, being the settlement of one's father or mother: all children being really settled in the parish where their parents are settled, until they get a new settlement for themselves[q]. a new settlement may be acquired several ways; as, . by marriage. for a woman, marrying a man that is settled in another parish, changes her own: the law not permitting the separation of husband and wife[r]. but if the man be a foreigner, and has no settlement, her's is suspended during his life, if he be able to maintain her; but after his death she may return again to her old settlement[s]. the other methods of acquiring settlements in any parish are all reducible to this one, of forty days residence therein: but this forty days residence (which is construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner; but accompanied with one or other of the following concomitant circumstances. the next method therefore of gaining a settlement, is, . by forty days residence, and notice. for if a stranger comes into a parish, and delivers notice in writing of his place of abode, and number of his family, to one of the overseers (which must be read in the church and registered) and resides there unmolested for forty days after such notice, he is legally settled thereby[t]. for the law presumes that such a one at the time of notice is not likely to become chargeable, else he would not venture to give it; or that, in such case, the parish would take care to remove him. but there are also other circumstances equivalent to such notice: therefore, . renting for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settlement without notice[u]; upon the principle of having substance enough to gain credit for such a house. . being charged to and paying the public taxes and levies of the parish; and, . executing any public parochial office for a whole year in the parish, as churchwarden, &c; are both of them equivalent to notice, and gain a settlement[w], when coupled with a residence of forty days. . being hired for a year, when unmarried, and serving a year in the same service; and . being bound an apprentice for seven years; give the servant and apprentice a settlement, without notice[x], in that place wherein they serve the last forty days. this is meant to encourage application to trades, and going out to reputable services. . lastly, the having an estate of one's own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, &c, is a sufficient settlement[y]: but if a man acquire it by his own act, as by purchase, (in it's popular sense, in consideration of money paid) then[z] unless the consideration advanced, _bona fide_, be _l._ it is no settlement for any longer time, than the person shall inhabit thereon. he is in no case removeable from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire a permanent and lasting settlement. [footnote o: lord raym. .] [footnote p: salk. .] [footnote q: salk. . lord raym. .] [footnote r: stra. .] [footnote s: foley. .] [footnote t: stat. & car. ii c. . jac. ii. c. . & w. & m. c. .] [footnote u: stat. & car. ii. c. .] [footnote w: stat. & w. & m. c. .] [footnote x: stat. & w. & m. c. . & w. iii. c. . and geo. ii. c. .] [footnote y: salk. .] [footnote z: stat. geo. i. c. .] all persons, not so settled, may be removed to their own parishes, on complaint of the overseers, by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish, into which they have intruded: unless they are in a way of getting a legal settlement, as by having hired a house of _l._ _per annum_, or living in an annual service; for then they are not removeable[a]. and in all other cases, if the parish to which they belong, will grant them a certificate, acknowleging them to be _their_ parishioners, they cannot be removed merely because _likely_ to become chargeable, but only when they become _actually_ chargeable[b]. but such certificated persons can gain no settlement by any of the means above-mentioned; unless by renting a tenement of _l._ _per annum_, or by serving an annual office in the parish, being legally placed therein: neither can an apprentice or servant to such certificated person gain a settlement by such their service[c]. [footnote a: salk. .] [footnote b: stat. & w. iii. c. .] [footnote c: stat. ann. c. .] these are the general heads of the laws relating to the poor, which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. and yet, notwithstanding the pains that has been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. when the shires, the hundreds, and the tithings, were kept in the same admirable order that they were disposed in by the great alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of eliz. seems entirely founded on the same principle. but when this excellent scheme was neglected and departed from, we cannot but observe with concern, what miserable shifts and lame expedients have from time to time been adopted, in order to patch up the flaws occasioned by this neglect. there is not a more necessary or more certain maxim in the frame and constitution of society, than that every individual must contribute his share, in order to the well-being of the community: and surely they must be very deficient in sound policy, who suffer one half of a parish to continue idle, dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that the industry of the other half is not able to maintain the whole. chapter the tenth. of the people, whether aliens, denizens, or natives. having, in the eight preceding chapters, treated of persons as they stand in the public relations of _magistrates_, i now proceed to consider such persons as fall under the denomination of the _people_. and herein all the inferior and subordinate magistrates, treated of in the last chapter, are included. the first and most obvious division of the people is into aliens and natural-born subjects. natural-born subjects are such as are born within the dominions of the crown of england, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. allegiance is the tie, or _ligamen_, which binds the subject to the king, in return for that protection which the king affords the subject. the thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our gothic ancestors. under the feodal system, every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vasal had received them: and there was a mutual trust or confidence subsisting between the lord and vasal, that the lord should protect the vasal in the enjoyment of the territory he had granted him, and, on the other hand, that the vasal should be faithful to the lord and defend him against all his enemies. this obligation on the part of the vasal was called his _fidelitas_ or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our antient oath of allegiance[a]: except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or vasal. but when the acknowlegement was made to the absolute superior himself, who was vasal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception: "_contra omnes homines fidelitatem fecit_[b]." land held by this exalted species of fealty was called _feudum ligium_, a liege fee; the vasals _homines ligii_, or liege men; and the sovereign their _dominus ligius_, or liege lord. and when sovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between _simple_ homage, which was only an acknowlegement of tenure[c]; and _liege_ homage, which included the fealty before-mentioned, and the services consequent upon it. thus when edward iii, in , did homage to philip vi of france, for his ducal dominions on that continent, it was warmly disputed of what species the homage was to be, whether _liege_ or _simple_ homage[d]. with us in england, it becoming a settled principle of tenure, that _all_ lands in the kingdom are holden of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. by an easy analogy the term of allegiance was soon brought to signify all other engagements, which are due from subjects to their prince, as well as those duties which were simply and merely territorial. and the oath of allegiance, as administred for upwards of six hundred years[e], contained a promise "to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom." upon which sir matthew hale[f] makes this remark; that it was short and plain, not entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty from the subject to his sovereign. but, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-resistance, the present form was introduced by the convention parliament, which is more general and indeterminate than the former; the subject only promising "that he will be faithful and bear _true_ allegiance to the king," without mentioning "his heirs," or specifying in the least wherein that allegiance consists. the oath of supremacy is principally calculated as a renuntiation of the pope's pretended authority: and the oath of abjuration, introduced in the reign of king william[g], very amply supplies the loose and general texture of the oath of allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror's power; promising to disclose all traiterous conspiracies against him; and expressly renouncing any claim of the pretender, by name, in as clear and explicit terms as the english language can furnish. this oath must be taken by all persons in any office, trust, or employment; and may be tendered by two justices of the peace to any person, whom they shall suspect of disaffection[h]. but the oath of allegiance may be tendered[i] to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff's tourn, which is the court-leet of the county. [footnote a: _feud._ , , .] [footnote b: _feud._ .] [footnote c: rep. calvin's case. .] [footnote d: carte. . mod. un. hist. xxiii. .] [footnote e: mirror. _c._ . §. . fleta. . . britton. _c._ . rep. calvin's case. .] [footnote f: hal. p.c. .] [footnote g: stat. w. iii. c. .] [footnote h: stat. geo. i. c. .] [footnote i: inst. . hal. p.c. .] but, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise; and although the subject never swore any faith or allegiance in form. for as the king, by the very descent of the crown, is fully invested with all the rights and bound to all the duties of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the subject of this his previous duty, and for the better securing it's performance[k]. the formal profession therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law. which occasions sir edward coke very justly to observe[l], that "all subjects are equally bounden to their allegiance, as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same." the sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not encrease the civil obligation to loyalty; it only strengthens the _social_ tie by uniting it with that of _religion_. [footnote k: hal. p.c. .] [footnote l: inst. .] allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth[m]. for, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature[n]. an englishman who removes to france, or to china, owes the same allegiance to the king of england there as at home, and twenty years hence as well as now. for it is a principle of universal law[o], that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince. [footnote m: rep. .] [footnote n: p. wms. .] [footnote o: hal. p.c. .] local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection[p]: and it ceases, the instant such stranger transfers himself from this kingdom to another. natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. as therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. but, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the british empire. from which considerations sir matthew hale[q] deduces this consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practice any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death; because of the breach of that temporary allegiance, which was due to him as king _de facto_. and upon this footing, after edward iv recovered the crown, which had been long detained from his house by the line of lancaster, treasons committed against henry vi were capitally punished, though henry had been declared an usurper by parliament. [footnote p: rep. .] [footnote q: hal. p.c. .] this oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal: and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the spencers banished in the reign of edward ii[r]. and from hence arose that principle of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign. [footnote r: hal. p.c. .] this allegiance then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour: the explanation of which rights is the principal subject of the two first books of these commentaries. the same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. i shall however here endeavour to chalk out some of the principal lines, whereby they are distinguished from natives, descending to farther particulars when they come in course. an alien born may purchase lands, or other estates: but not for his own use; for the king is thereupon entitled to them[s]. if an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of england; which would probably be inconsistent with that, which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. wherefore by the civil law such contracts were also made void[t]: but the prince had no such advantage of escheat thereby, as with us in england. among other reasons, which might be given for our constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange. yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation[u]: for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. aliens also may trade as freely as other people; only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of henry viii, prohibiting alien artificers to work for themselves in this kingdom; but it is generally held they were virtually repealed by statute eliz. c. . also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate[w]: not as it is in france, where the king at the death of an alien is entitled to all he is worth, by the _droit d'aubaine_ or _jus albinatus_[x], unless he has a peculiar exemption. when i mention these rights of an alien, i must be understood of alien-friends only, or such whose countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king's special favour, during the time of war. [footnote s: co. litt. .] [footnote t: _cod._ _l._ . _tit._ .] [footnote u: rep. .] [footnote w: lutw. .] [footnote x: the word is derived from _alibi natus_; spelm. gl. .] when i say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. the common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration[y], for the naturalization of children of his majesty's english subjects, born in foreign countries during the late troubles. and this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. yet the children of the king's embassadors born abroad were always held to be natural subjects[z]: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of _postliminium_) to be born under the king of england's allegiance, represented by his father, the embassador. to encourage also foreign commerce, it was enacted by statute edw. iii. st. . that all children born abroad, provided _both_ their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in england: and accordingly it hath been so adjudged in behalf of merchants[a]. but by several more modern statutes[b] these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose _fathers_ were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with great britain. [footnote y: stat. car. ii. c. .] [footnote z: rep. .] [footnote a: cro. car. . mar. . jenk. cent. .] [footnote b: ann. c. . and geo. ii. c. .] the children of aliens, born here in england, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. in which the constitution of france differs from ours; for there, by their _jus albinatus_, if a child be born of foreign parents, it is an alien[c]. [footnote c: jenk. cent. . cites _treasure françois_, .] a denizen is an alien born, but who has obtained _ex donatione regis_ letters patent to make him an english subject: a high and incommunicable branch of the royal prerogative[d]. a denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. he may take lands by purchase or devise, which an alien may not; but cannot take by inheritance[e]: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. and, upon a like defect of hereditary blood, the issue of a denizen, born _before_ denization, cannot inherit to him; but his issue born _after_, may[f]. a denizen is not excused[g] from paying the alien's duty, and some other mercantile burthens. and no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown[h]. [footnote d: rep. calvin's case. .] [footnote e: rep. .] [footnote f: co. litt. . vaugh. .] [footnote g: stat. hen. viii. c. .] [footnote h: stat. w. iii. c. .] naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c[i]. no bill for naturalization can be received in either house of parliament, without such disabling clause in it[k]. neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament[l]. [footnote i: _ibid._] [footnote k: stat. geo. i. c. .] [footnote l: stat. jac. i. c. .] these are the principal distinctions between aliens, denizens, and natives: distinctions, which endeavors have been frequently used since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. an attempt which was once carried into execution by the statute ann. c. . but this, after three years experience of it, was repealed by the statute ann. c. . except one clause, which was just now mentioned, for naturalizing the children of english parents born abroad. however, every foreign seaman who in time of war serves two years on board an english ship is _ipso facto_ naturalized[m]; and all foreign protestants, and jews, upon their residing seven years in any of the american colonies, without being absent above two months at a time, are upon taking the oaths naturalized to all intents and purposes, as if they had been born in this kingdom[n]; and therefore are admissible to all such privileges, and no other, as protestants or jews born in this kingdom are entitled to. what those privileges are[o], was the subject of very high debates about the time of the famous jew-bill[p]; which enabled all jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute jac. i. it is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed[q]: therefore peace be now to it's _manes_. [footnote m: stat. geo. ii. c. .] [footnote n: stat. geo. ii. c. . geo. ii. c. . geo. iii. c. .] [footnote o: a pretty accurate account of the jews, till their banishment in edw. i. may be found in molloy _de jure maritimo_, b. . c. .] [footnote p: stat. geo. ii. c. .] [footnote q: stat. geo. ii. c. .] chapter the eleventh. of the clergy. the people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter. this venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty god, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at the time of the reformation, on account of the ill use which the popish clergy had endeavoured to make of them. for, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. but it is observed by sir edward coke[a], that, as the overflowing of waters doth many times make the river to lose it's proper chanel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. the personal exemptions do indeed for the most part continue. a clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which almost every other person is obliged to do[b]: but, if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn[c]. neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function[d]. during his attendance on divine service he is privileged from arrests in civil suits[e]. in cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman[f]. but as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. clergymen, we have seen[g], are incapable of sitting in the house of commons; and by statute hen. viii. c. . are not allowed to take any lands or tenements to farm, upon pain of _l._ _per_ month, and total avoidance of the lease; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. which prohibition is consonant to the canon law. [footnote a: inst. .] [footnote b: f.n.b. . inst. .] [footnote c: leon. .] [footnote d: finch. l. .] [footnote e: stat. edw. iii. c. . ric. ii. c. .] [footnote f: inst. . stat. hen. vii. c. . & edw. vi. c. .] [footnote g: page .] in the frame and constitution of ecclesiastical polity there are divers ranks and degrees: which i shall consider in their respective order, merely as they are taken notice of by the secular laws of england; without intermeddling with the canons and constitutions, by which they have bound themselves. and under each division i shall consider, . the method of their appointment; . their rights and duties; and . the manner wherein their character or office may cease. i. an arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. election was, in very early times, the usual mode of elevation to the episcopal chair throughout all christendom; and this was promiscuously performed by the laity as well as the clergy[h]: till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of europe took the election in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated, nor receive any secular profits. this right was acknowleged in the emperor charlemagne, _a.d._ , by pope hadrian i, and the council of lateran[i], and universally exercised by other christian princes: but the policy of the court of rome at the same time began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. hence the right of appointing to bishopricks is said to have been in the crown of england[k] (as well as other kingdoms in europe) even in the saxon times, because the rights of confirmation and investiture were in effect (though not in form) a right of complete donation[l]. but when, by length of time, the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these investitures, which was _per annulum et baculum_, by the prince's delivering to the prelate a ring, and a pastoral staff or crosier; pretending, that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurisdiction: and pope gregory vii, towards the close of the eleventh century, published a bulle of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them[m]. this was a bold step towards effecting the plan then adopted by the roman see, of rendering the clergy intirely independent of the civil authority: and long and eager were the contests occasioned by this dispute. but at length when the emperor henry v agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future _per sceptrum_ and not _per annulum et baculum_; and when the kings of england and france consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of rome found it prudent to suspend for a while it's other pretensions[n]. [footnote h: _per clerum et populum._ palm. . roll. rep. . m. paris. _a.d._ .] [footnote i: _decret._ . _dist._ . _c._ .] [footnote k: palm. .] [footnote l: "_nulla electio praelatorum (sunt verba ingulphi) erat mere libera et canonica; sed omnes dignitates tam episcoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat._" _penes clericos et monachos fuit electio, sed electum a rege postulabant._ selden. _jan. angl._ l. . §. .] [footnote m: _decret._ . _caus._ . _qu._ . _c._ & .] [footnote n: mod. un. hist. xxv. . xxix. .] this concession was obtained from king henry the first in england, by means of that obstinate and arrogant prelate, arch-bishop anselm[o]: but king john (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of our _conge d'eslire_) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause[p]. this grant was expressly recognized and confirmed in king john's _magna carta_[q], and was again established by statute edw. iii. st. . §. . [footnote o: m. paris. _a.d._ .] [footnote p: m. paris. _a.d._ . rym. _foed._ .] [footnote q: _cap._ . _edit. oxon._ .] but by statute hen. viii. c. . the antient right of nomination was, in effect, restored to the crown: it being enacted that, at every future avoidance of a bishoprick, the king may send the dean and chapter his usual licence to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the nomination shall devolve to the king, who may by letters patent appoint such person as he pleases. this election or nomination, if it be of a bishop, must be signified by the king's letters patent to the arch-bishop of the province; if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of rome. after which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. and if such dean and chapter do not elect in the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a _praemunire_. an arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause[r]. the arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. as arch-bishop, he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation: but without the king's writ he cannot assemble them[s]. to him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. during the vacancy of any see in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. if an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of canterbury was abolished at the reformation[t]. the arch-bishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled within six months. and the arch-bishop has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the arch-bishop himself shall choose; which is therefore called his option[u]: which options are only binding on the bishop himself who grants them, and not his successors. the prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of canterbury[w]. and we may add, that the papal claim itself (like most others of that encroaching see) was probably set up in imitation of the imperial prerogative called _primae_ or _primariae preces_; whereby the emperor exercises, and hath immemorially exercised[x], a right of naming to the first prebend that becomes vacant after his accession in every church of the empire[y]. a right, that was also exercised by the crown of england in the reign of edward i[z]; and which probably gave rise to the royal corodies, which were mentioned in a former chapter[a]. it is also the privilege, by custom, of the arch-bishop of canterbury, to crown the kings and queens of this kingdom. and he hath also by the statute hen. viii. c. . the power of granting dispensations in any case, not contrary to the holy scriptures and the law of god, where the pope used formerly to grant them: which is the foundation of his granting special licences, to marry at any place or time, to hold two livings, and the like: and on this also is founded the right he exercises of conferring degrees, in prejudice of the two universities[b]. [footnote r: lord raym. .] [footnote s: inst. , .] [footnote t: roll. abr. .] [footnote u: cowel's interpr. tit. option.] [footnote w: sherlock of options. .] [footnote x: goldast. _constit. imper._ _tom._ . _pag._ .] [footnote y: dufresne. v. . mod. un. hist. xxix. .] [footnote z: _rex, &c, salutem. scribatis episcopo karl. quod--roberto de icard pensionem suam, quam ad preces regis praedicto roberto concessit, de caetero solvat; et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse robertus acceptaverit, respiciat._ _brev._ edw. i. pryn. .] [footnote a: ch. . pag. .] [footnote b: see the bishop of chester's case. oxon. .] the power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consists principally in inspecting the manners of the people and clergy, and punishing them, in order to reformation, by ecclesiastical censures. to this purpose he has several courts under him, and may visit at pleasure every part of his diocese. his chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law; who, as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some university[c]. it is also the business of a bishop to institute and to direct induction to all ecclesiastical livings in his diocese. [footnote c: stat. hen. viii. c. .] archbishopricks and bishopricks may become void by death, deprivation for any very gross and notorious crime, and also by resignation. all resignations must be made to some superior[d]. therefore a bishop must resign to his metropolitan; but the arch-bishop can resign to none but the king himself. [footnote d: gibs. cod. .] ii. a dean and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his see[e]. when the rest of the clergy were settled in the several parishes of each diocese (as hath formerly[f] been mentioned) these were reserved for the celebration of divine service in the bishop's own cathedral; and the chief of them, who presided over the rest, obtained the name of _decanus_ or dean, being probably at first appointed to superintend _ten_ canons or prebendaries. [footnote e: rep. . co. litt. , .] [footnote f: pag. , .] all antient deans are elected by the chapter, by _conge d'eslire_ from the king, and letters missive of recommendation; in the same manner as bishops: but in those chapters, that were founded by henry viii out of the spoils of the dissolved monasteries, the deanery is donative, and the installation merely by the king's letters patent[g]. the chapter, consisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other. [footnote g: gibs. cod. .] the dean and chapter are, as was before observed, the nominal electors of a bishop. the bishop is their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and correcting their excesses and enormities. they had also a check on the bishop at common law: for till the statute hen. viii. c. . his grant or lease would not have bound his successors, unless confirmed by the dean and chapter[h]. [footnote h: co. litt. .] deaneries and prebends may become void, like a bishoprick, by death, by deprivation, or by resignation to either the king or the bishop[j]. also i may here mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop, all the preferments he was before possessed of are void; and the king may present to them in right of his prerogative royal. but they are not void by the election, but only by the consecration[i]. [footnote j: plowd. .] [footnote i: roll. abr. . salk. . [transcriber's note: footnotes j and i are in this order in the original.]] iii. an arch-deacon hath an ecclesiastical jurisdiction, immediately subordinate to the bishop, throughout the whole of his diocese, or in some particular part of it. he is usually appointed by the bishop himself; and hath a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his[k]. he therefore visits the clergy; and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance. [footnote k: burn. eccl. law. , .] iv. the rural deans are very antient officers of the church[l], but almost grown out of use; though their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. they seem to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authority[m]. [footnote l: kennet. par. antiq. .] [footnote m: gibs. cod. .] v. the next, and indeed the most numerous order of men in the system of ecclesiastical polity, are the parsons and vicars of parishes: in treating of whom i shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, shew how one may cease to be either. a parson, _persona ecclesiae_, is one that hath full possession of all the rights of a parochial church. he is called parson, _persona_, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession[n]. he is sometimes called the rector, or governor, of the church: but the appellation of _parson_, (however it may be depreciated by familiar, clownish, and indiscriminate use) is the most legal, most beneficial, and most honourable title that a parish priest can enjoy; because such a one, (sir edward coke observes) and he only, is said _vicem seu personam ecclesiae gerere_. a parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. but these are sometimes _appropriated_; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. this contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. at the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabrick of the church, a third for the poor, and the fourth to provide for the incumbent. when the sees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. and hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety) subject to the burthen of repairing the church and providing for it's constant supply. and therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. but, in order to complete such appropriation effectually, the king's licence, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies: and also because the law reposes a confidence in them, that they will not consent to any thing that shall be to the prejudice of the church. the consent of the patron also is necessarily implied, because (as was before observed) the appropriation can be originally made to none, but to such spiritual corporation, as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church[o]. when the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons[p]. [footnote n: co. litt. .] [footnote o: plowd. - .] [footnote p: hob. .] this appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities[q]. and when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a _sine-cure_; because he hath no cure of souls, having a vicar under him to whom that cure is committed[r]. also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation. [footnote q: co. litt. .] [footnote r: sine-cures might also be created by other means. burn. eccl. law. .] in this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations. at the dissolution of monasteries by statutes hen. viii. c. . and hen. viii. c. . the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in england[s]) would have been by the rules of the common law disappropriated; had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, &c, formerly held the same, at the time of their dissolution. this, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, (that is, such as were filled by foreigners only) were dissolved and given to the crown[t]. and from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown[u]. [footnote s: seld. review of tith. c. . spelm. apology. .] [footnote t: inst. .] [footnote u: sir h. spelman (of tythes, c. .) says these are now called impropriations, as being _improperly_ in the hands of laymen.] these appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. this officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called _vicarius_, or _vicar_. his stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, _qui illi de temporalibus, episcopo de spiritualibus, debeat respondere_[w]. but this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute ric. ii. c. . that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be _sufficiently_ endowed. it seems the parish were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. but he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore by statute hen. iv. c. . it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removeable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to inform the people, and to keep hospitality. the endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are therefore generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still referred to their own use. but one and the same rule was not observed in the endowment of all vicarages. hence some are more liberally, and some more scantily, endowed; and hence many things, as wood in particular, is in some countries a predial, and in some a vicarial tithe. [footnote w: seld. tith. c. . .] the distinction therefore of a parson and vicar is this; that the parson has for the most part the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute car. ii. c. . enacted in favour of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual. the method of becoming a parson or vicar is much the same. to both there are four requisites necessary: holy orders; presentation; institution; and induction. the method of conferring the holy orders of deacon and priest, according to the liturgy and canons[x], is foreign to the purpose of these commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. by common law a deacon, of any age, might be instituted and inducted to a parsonage or vicarage: but it was ordained by statute eliz. c. . that no person under twenty three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be _ipso facto_ deprived: and now, by statute & car. ii. c. . no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. but if he obtains orders, or a licence to preach, by money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[y] _l._ and the person receiving _l._ and is incapable of any ecclesiastical preferment for seven years afterwards. [footnote x: see burn. eccl. law. .] [footnote y: stat. eliz. c. .] any clerk may be presented[z] to a parsonage or vicarage; that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. but when a clerk is presented, the bishop may refuse him upon many accounts. as, . if the patron is excommunicated, and remains in contempt forty days[a]. or, . if the clerk be unfit[b]: which unfitness is of several kinds. first, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like[c]. next, with regard to his faith or morals; as for any particular heresy, or vice that is _malum in se_: but if the bishop alleges only in generals, as that he is _schismaticus inveteratus_, or objects a fault that is _malum prohibitum_ merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal[d]. or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. in any of which cases the bishop may refuse the clerk. in case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[e]. [footnote z: a layman may also be presented; but he must take priests orders before his admission. burn. .] [footnote a: roll. abr. .] [footnote b: glanv. _l._ . _c._ .] [footnote c: roll. abr. . inst. . stat. ric. ii. c. . ric. ii. c. .] [footnote d: rep. .] [footnote e: inst. .] if an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop must assign the cause. if the cause be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts must determine it's validity, or, whether it be sufficient cause of refusal: but if the fact be denied, it must be determined by a jury. if the cause be of a spiritual nature, (as, heresy, particularly alleged) the fact if denied shall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide it's sufficiency[f]. if the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he _is_ deficient[g]: for the statute edw. ii. st. . c. . is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. but because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bishop returns the clerk to be _minus sufficiens in literatura_, the court shall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[h]. [footnote f: inst. .] [footnote g: rep. . lev. .] [footnote h: inst. .] if the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parish is committed to the charge of the clerk. when a vicar is instituted, he (besides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that _vicarius non habet vicarium_: and as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and by absence to create the very mischiefs which they were appointed to remedy: especially as, if any profits are to arise from putting in a curate and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. when the ordinary is also the patron, and _confers_ the living, the presentation and institution are one and the same act, and are called a collation to a benefice. by institution or collation the church is full, so that there can be no fresh presentation till another vacancy, at least in the case of a common patron; but the church is not full against the king, till induction: nay, even if a clerk is instituted upon the king's presentation, the crown may revoke it before induction, and present another clerk[i]. upon institution also the clerk may enter on the parsonage house and glebe, and take the tithes; but he cannot grant or let them, or bring any action for them, till induction. [footnote i: co. litt. .] induction is performed by a mandate from the bishop to the arch-deacon, who usually issues out a precept to other clergymen to perform it for him. it is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. this therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. and when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law _persona impersonata_, or parson imparsonee[k]. [footnote k: co. litt. .] the rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally of ecclesiastical cognizance; those only excepted which are laid upon him by statute. and those are indeed so numerous that it is impracticable to recite them here with any tolerable conciseness or accuracy. some of them we may remark, as they arise in the progress of our enquiries, but for the rest i must refer myself to such authors as have compiled treatises expressly upon this subject[l]. i shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an incumbent. by statute hen. viii. c. . persons wilfully absenting themselves from their benefices, for one month together, or two months in the year, incur a penalty of _l._ to the king, and _l._ to any person that will sue for the same: except chaplains to the king, or others therein mentioned[m], during their attendance in the houshold of such as retain them: and also except[n] all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there, _bona fide_, for study. legal residence is not only in the parish, but also in the parsonage house: for it hath been resolved[o], that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there. [footnote l: these are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop gibson's _codex_, and dr burn's ecclesiastical law.] [footnote m: stat. hen. viii. c. . hen. viii. c. .] [footnote n: stat. hen. viii. c. .] [footnote o: rep. .] we have seen that there is but one way, whereby one may become a parson or vicar: there are many ways, by which one may cease to be so. . by death. . by cession, in taking another benefice. for by statute hen. viii. c. . if any one having a benefice of _l._ _per annum_, or upwards, in the king's books, (according to the present valuation[p],) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law, _admitted by the universities_ of this realm. and a vacancy thus made, for want of a dispensation, is called cession. . by consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. but there is a method, by the favour of the crown, of holding such livings _in commendam_. _commenda_, or _ecclesia commendata_, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. this may be temporary, for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a _commenda retinere_. there is also a _commenda recipere_, which is to take a benefice _de novo_, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clerk[q]. . by resignation. but this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made[r]. . by deprivation, either by canonical censures, of which i am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime. as, for simony[s]; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of the book of common-prayer[t]; for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[u]; for using any other form of prayer than the liturgy of the church of england[w]; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities[x]; in all which and similar cases[y] the benefice is _ipso facto_ void, without any formal sentence of deprivation. [footnote p: cro. car. .] [footnote q: hob. .] [footnote r: cro. jac. .] [footnote s: stat. eliz. c. . and ann. c. .] [footnote t: stat. eliz. c. & . and eliz. c. .] [footnote u: stat. eliz. c. . car. ii. c. . and geo. i. c. .] [footnote w: stat. eliz. c. .] [footnote x: stat. w. & m. c. .] [footnote y: rep. , .] vi. a curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the real incumbent. though there are what are called _perpetual_ curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons[z] exempted from the statute of hen. iv) but, instead thereof, such perpetual curate is appointed by the appropriator. with regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during it's vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession[a]: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding _l._ _per annum_, nor less than _l._ and on failure of payment may sequester the profits of the benefice[b]. [footnote z: burn. eccl. law. .] [footnote a: stat. hen. viii. c. .] [footnote b: stat. ann. st. . c. .] thus much of the clergy, properly so called. there are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers. on which officers i shall make a few cursory remarks. vii. churchwardens are the guardians or keepers of the church, and representatives of the body of the parish[c]. they are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. they are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law: but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in their place. as to lands, or other real property, as the church, church-yard, &c, they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. they are also joined with the overseers in the care and maintenance of the poor. they are to levy[d] a shilling forfeiture on all such as do not repair to church on sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault or trespass[e]. there are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament[f]. [footnote c: in sweden they have similar officers, whom they call _kiorckiowariandes_. stiernhook. l. . c. .] [footnote d: stat. eliz. c. .] [footnote e: lev. .] [footnote f: see lambard of churchwardens, at the end of his _eirenarcha_; and dr burn, tit. _church, churchwardens, visitation_.] viii. parish clerks and sextons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures[g]. the parish clerk was formerly always in holy orders; and some are so to this day. he is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's bench will grant a _mandamus_ to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right[h]. [footnote g: roll. abr. .] [footnote h: cro. car. .] chapter the twelfth. of the civil state. the lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three distinct states, the civil, the military, and the maritime. that part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant; that are not included under either our former division, of clergy, or under one of the two latter, the military and maritime states: and it may sometimes include individuals of the other three orders; since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman. the civil state consists of the nobility and the commonalty. of the nobility, the peerage of great britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, i have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour. all degrees of nobility and honour are derived from the king as their fountain[a]: and he may institute what new titles he pleases. hence it is that all degrees of honour are not of equal antiquity. those now in use are dukes, marquesses, earls, viscounts, and barons[b]. [footnote a: inst. .] [footnote b: for the original of these titles on the continent of europe, and their subsequent introduction into this island, see mr selden's _titles of honour_.] . a _duke_, though it be with us, as a mere title of nobility, inferior in point of antiquity to many others, yet it is superior to all of them in rank; being the first title of dignity after the royal family[c]. among the saxons the latin name of dukes, _duces_, is very frequent, and signified, as among the romans, the commanders or leaders of their armies, whom in their own language they called [anglo-saxon: heretoga][d]; and in the laws of henry i (as translated by lambard) we find them called _heretochii_. but after the norman conquest, which changed the military polity of the nation, the kings themselves continuing for many generations _dukes_ of normandy, they would not honour any subjects with that title, till the time of edward iii; who, claiming to be king of france, and thereby losing the ducal in the royal dignity, in the eleventh year of his reign created his son, edward the black prince, duke of cornwall: and many, of the royal family especially, were afterwards raised to the same honour. however, in the reign of queen elizabeth, _a.d._ [e], the whole order became utterly extinct: but it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honours, in the person of george villiers duke of buckingham. [footnote c: camden. britan. _tit. ordines_.] [footnote d: this is apparently derived from the same root as the german [fraktur: hertzogen], the antient appellation of dukes in that country. seld. tit. hon. . . .] [footnote e: camden. britan. _tit. ordines_. spelman. _gloss._ .] . a _marquess_, _marchio_, is the next degree of nobility. his office formerly was (for dignity and duty were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were called the marches, from the teutonic word, _marche_, a limit: as, in particular, were the marches of wales and scotland, while they continued to be enemies countries. the persons who had command there, were called lords marchers, or marquesses; whose authority was abolished by statute hen. viii. c. : though the title had long before been made a mere ensign of honour; robert vere, earl of oxford, being created marquess of dublin, by richard ii in the eighth year of his reign[f]. [footnote f: inst. .] . an _earl_ is a title of nobility so antient, that it's original cannot clearly be traced out. thus much seems tolerably certain: that among the saxons they were called _ealdormen_, _quasi_ elder men, signifying the same as _senior_ or _senator_ among the romans; and also _schiremen_, because they had each of them the civil government of a several division or shire. on the irruption of the danes, they changed the name to _eorles_, which, according to camden[g], signified the same in their language. in latin they are called _comites_ (a title first used in the empire) from being the king's attendants; "_a societate nomen sumpserunt, reges enim tales sibi associant_[h]." after the norman conquest they were for some time called _counts_, or _countees_, from the french; but they did not long retain that name themselves, though their shires are from thence called counties to this day. it is now become a mere title, they having nothing to do with the government of the county; which, as has been more than once observed, is now entirely devolved on the sheriff, the earl's deputy, or _vice-comes_. in all writs, and commissions, and other formal instruments, the king, when he mentions any peer of the degree of an earl, always stiles him "trusty and well beloved _cousin_:" an appellation as antient as the reign of henry iv; who being either by his wife, his mother, or his sisters, actually related or allied to every earl in the kingdom, artfully and constantly acknowleged that connexion in all his letters and other public acts; from whence the usage has descended to his successors, though the reason has long ago failed. [footnote g: _ibid._] [footnote h: bracton. _l._ . _c._ . fleta. _l._ i. _c._ .] . the name of _vice-comes_ or _viscount_ was afterwards made use of as an arbitrary title of honour, without any shadow of office pertaining to it, by henry the sixth; when in the eighteenth year of his reign, he created john beaumont a peer, by the name of viscount beaumont, which was the first instance of the kind[i]. [footnote i: inst. .] . a _baron_'s is the most general and universal title of nobility; for originally every one of the peers of superior rank had also a barony annexed to his other titles[k]. but it hath sometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently; one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony: and there are also modern instances where earls and viscounts have been created without annexing a barony to their other honours: so that now the rule does not hold universally, that all peers are barons. the original and antiquity of baronies has occasioned great enquiries among our english antiquarians. the most probable opinion seems to be, that they were the same with our present lords of manors; to which the name of court baron, (which is the lord's court, and incident to every manor) gives some countenance. it may be collected from king john's _magna carta_[l], that originally all lords of manors, or barons, that held of the king _in capite_, had seats in the great council or parliament, till about the reign of that prince the conflux of them became so large and troublesome, that the king was obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which gave rise to the separation of the two houses of parliament[m]. by degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till richard the second first made it a mere title of honor, by conferring it on divers persons by his letters patent[n]. [footnote k: inst. , .] [footnote l: _cap._ .] [footnote m: gilb. hist. exch. c. . seld. tit. of hon. . . .] [footnote n: inst. . seld. _jan. angl._ . §. .] having made this short enquiry into the original of our several degrees of nobility, i shall next consider the manner in which they may be created. the right of peerage seems to have been originally territorial; that is, annexed to lands, honors, castles, manors, and the like, the proprietors and possessors of which were (in right of those estates) allowed to be peers of the realm, and were summoned to parliament to do suit and service to their sovereign: and, when the land was alienated, the dignity passed with it as appendant. thus the bishops still sit in the house of lords in right of succession to certain antient baronies annexed, or supposed to be annexed, to their episcopal lands[o]: and thus, in hen. vi, the possession of the castle of arundel was adjudged to confer an earldom on it's possessor[p]. but afterwards, when alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal. actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the record of the writ of summons to them or their ancestors was admitted as a sufficient evidence of the tenure. [footnote o: glanv. _l._ . _c._ .] [footnote p: seld. tit. of hon. b. . c. . §. .] peers are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is lost. the creation by writ, or the king's letter, is a summons to attend the house of peers, by the stile and title of that barony, which the king is pleased to confer: that by patent is a royal grant to a subject of any dignity and degree of peerage. the creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords: and therefore the most usual, because the surest, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himself makes use of it[q]. yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons, in the name of his father's barony: because in that case there is no danger of his children's losing the nobility in case he never takes his seat; for they will succeed to their grand-father. creation by writ has also one advantage over that by patent: for a person created by writ holds the dignity to him _and his heirs_, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life[r]. for a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs: as where a peerage is limited to a man, and the heirs male of his body by elizabeth his present lady, and not to such heirs by any former or future wife. [footnote q: co. litt. .] [footnote r: co. litt. . .] let us next take a view of a few of the principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before considered. and first we must observe, that in criminal cases, a nobleman shall be tried by his peers. the great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the prejudice of their judges; and would moreover be deprived of the privilege of the meanest subjects, that of being tried by their equals, which is secured to all the realm by _magna carta_, c. . it is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies which they hold _jure ecclesiae_, yet are not ennobled in blood, and consequently not peers with the nobility[s]. as to peeresses, no provision was made for their trial when accused of treason or felony, till after eleanor dutchess of gloucester, wife to the lord protector, had been accused of treason and found guilty of witchcraft, in an ecclesiastical synod, through the intrigues of cardinal beaufort. this very extraordinary trial gave occasion to a special statute, hen. vi. c. . which enacts that peeresses either in their own right, or by marriage, shall be tried before the same judicature as peers of the realm. if a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers: but if she be only noble by marriage, then by a second marriage, with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are _pares_, and therefore it is no degradation[t]. a peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases[u]: and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. a peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour[w]: he answers also to bills in chancery upon his honour, and not upon his oath[x]; but, when he is examined as a witness either in civil or criminal cases, he must be sworn[y]: for the respect, which the law shews to the honour of a peer, does not extend so far as to overturn a settled maxim, that _in judicio non creditur nisi juratis_[z]. the honour of peers is however so highly tendered by the law, that it is much more penal to spread false reports of them, and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of _scandalum magnatum_; and subjected to peculiar punishment by divers antient statutes[a]. [footnote s: inst. , .] [footnote t: inst. .] [footnote u: finch. l. . ventr. .] [footnote w: inst .] [footnote x: p. wms. .] [footnote y: salk. .] [footnote z: cro. car. .] [footnote a: edw. i. c. . ric. ii. st. . c. . ric. ii. c. .] a peer cannot lose his nobility, but by death or attainder; hough [transcriber's note: though] there was an instance, in the reign of edward the fourth, of the degradation of george nevile duke of bedford by act of parliament[b], on account of his poverty, which rendered him unable to support his dignity[c]. but this is a singular instance: which serves at the same time, by having happened, to shew the power of parliament; and, by having happened but once, to shew how tender the parliament hath been, in exerting so high a power. it hath been said indeed[d], that if a baron waste his estate, so that he is not able to support the degree, the _king_ may degrade him: but it is expressly held by later authorities[e], that a peer cannot be degraded but by act of _parliament_. [footnote b: inst. .] [footnote c: the preamble to the act is remarkable: "forasmuch as oftentimes it is seen, that when any lord is called to high estate, and hath not convenient livelyhood to support the same dignity, it induceth great poverty and indigence, and causeth oftentimes great extortion, embracery, and maintenance to be had; to the great trouble of all such countries where such estate shall happen to be: therefore, &c."] [footnote d: by lord chancellor ellesmere. moor. .] [footnote e: rep. . mod. .] the commonalty, like the nobility, are divided into several degrees; and, as the lords, though different in rank, yet all of them are peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers, in respect of their want of nobility[f]. [footnote f: inst. .] the first name of dignity, next beneath a peer, was anciently that of _vidames_, _vice domini_, or _valvasors_[g]: who are mentioned by our antient lawyers[h] as _viri magnae dignitatis_; and sir edward coke[i] speaks highly of them. yet they are now quite out of use; and our legal antiquarians are not so much as agreed upon their original or ancient office. [footnote g: camden. _ibid._] [footnote h: bracton. _l._ . _c._ .] [footnote i: inst. .] now therefore the first dignity after the nobility, is a _knight_ of the order of st. george, or _of the garter_; first instituted by edward iii, _a.d._ [k]. next follows a _knight banneret_; who indeed by statutes ric. ii. st. . c. . and ric. ii. c. . is ranked next after barons: and that precedence was confirmed to him by order of king james i, in the tenth year of his reign[l]. but, in order to intitle himself to this rank, he must have been created by the king in person, in the field, under the royal banners, in time of open war[m]. else he ranks after _baronets_; who are the next order: which title is a dignity of inheritance, created by letters patent, and usually descendible to the issue male. it was first instituted by king james the first, _a.d._ . in order to raise a competent sum for the reduction of the province of ulster in ireland; for which reason all baronets have the arms of ulster superadded to their family coat. next follow _knights of the bath_; an order instituted by king henry iv, and revived by king george the first. they are so called from the ceremony of bathing, the night before their creation. the last of these inferior nobility are _knights bachelors_; the most antient, though the lowest, order of knighthood amongst us: for we have an instance[n] of king alfred's conferring this order on his son athelstan. the custom of the antient germans was to give their young men a shield and a lance in the great council: this was equivalent to the _toga virilis_ of the romans: before this they were not permitted to bear arms, but were accounted as part of the father's houshold; after it, as part of the public[o]. hence some derive the usage of knighting, which has prevailed all over the western world, since it's reduction by colonies from those northern heroes. knights are called in latin _equites aurati_; _aurati_, from the gilt spurs they wore; and _equites_, because they always served on horseback: for it is observable[p], that almost all nations call their knights by some appellation derived from an horse. they are also called in our law _milites_, because they formed a part, or indeed the whole of the royal army, in virtue of their feodal tenures; one condition of which was, that every one who held a knights fee (which in henry the second's time[q] amounted to _l._ _per annum_) was obliged to be knighted, and attend the king in his wars, or fine for his non-compliance. the exertion of this prerogative, as an expedient to raise money in the reign of charles the first, gave great offence; though warranted by law, and the recent example of queen elizabeth: but it was, at the restoration, together with all other military branches of the feodal law, abolished; and this kind of knighthood has, since that time, fallen into great disregard. [footnote k: seld. tit. of hon. . . .] [footnote l: seld. tit. hon. . . .] [footnote m: inst. .] [footnote n: will. malmsb. _lib._ .] [footnote o: tac. _de morib. germ._ .] [footnote p: camden. _ibid._ co. litt. .] [footnote q: glanvil. _l._ . _c._ .] these, sir edward coke says[r], are all the names of _dignity_ in this kingdom, esquires and gentlemen being only names of _worship_. but before these last the heralds rank all colonels, serjeants at law, and doctors in the three learned professions. [footnote r: inst. .] esquires and gentlemen are confounded together by sir edward coke, who observes[s], that every esquire is a gentleman, and a gentleman is defined to be one _qui arma gerit_, who bears coat armour, the grant of which adds gentility to a man's family: in like manner as civil nobility, among the romans, was founded in the _jus imaginum_, or having the image of one ancestor at least, who had borne some curule office. it is indeed a matter somewhat unsettled, what constitutes the distinction, or who is a real _esquire_: for it is not an estate, however large, that confers this rank upon it's owner. camden, who was himself a herald, distinguishes them the most accurately; and he reckons up four sorts of them[t]: . the eldest sons of knights, and their eldest sons, in perpetual succession[u]. . the younger sons of peers, and their eldest sons, in like perpetual succession: both which species of esquires sir h. spelman entitles _armigeri natalitii_[w]. . esquires created by the king's letters patent, or other investiture; and their eldest sons. . esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust under the crown. to these may be added the esquires of knights of the bath, each of whom constitutes three at his installation; and all foreign, nay, irish peers; and the eldest sons of peers of great britain, who, though generally titular lords, are only esquires in the law, and must so be named in all legal proceedings[x]. as for _gentlemen_, says sir thomas smith[y], they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professeth liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken for a gentleman. a _yeoman_ is he that hath free land of forty shillings by the year; who is thereby qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires one that is _probus et legalis homo_[z]. [footnote s: inst. .] [footnote t: _ibid._] [footnote u: inst. .] [footnote w: gloss. .] [footnote x: inst. . inst. .] [footnote y: commonw. of eng. book . c. .] [footnote z: inst. .] the rest of the commonalty are _tradesmen_, _artificers_, and _labourers_; who (as well as all others) must in pursuance of the statute hen. v. c. . be stiled by the name and addition of their estate, degree, or mystery, in all actions and other legal proceedings. chapter the thirteenth. of the military and maritime states. the military state includes the whole of the soldiery; or, such persons as are peculiarly appointed among the rest of the people, for the safeguard and defence of the realm. in a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. in absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. in these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. the laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of henry vii, that the kings of england had so much as a guard about their persons. in the time of our saxon ancestors, as appears from edward the confessor's laws[a], the military force of this kingdom was in the hands of the dukes or heretochs, who were constituted through every province and county in the kingdom; being taken out of the principal nobility, and such as were most remarkable for being "_sapientes, fideles, et animosi_." their duty was to lead and regulate the english armies, with a very unlimited power; "_prout eis visum fuerit, ad honorem coronae et utilitatem regni_." and because of this great power they were elected by the people in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that old fundamental maxim of the saxon constitution, that where any officer was entrusted with such power, as if abused might tend to the oppression of the people, that power was delegated to him by the vote of the people themselves[b]. so too, among the antient germans, the ancestors of our saxon forefathers, they had their dukes, as well as kings, with an independent power over the military, as the kings had over the civil state. the dukes were elective, the kings hereditary: for so only can be consistently understood that passage of tacitus[c], "_reges ex nobilitate, duces ex virtute sumunt_;" in constituting their kings, the family, or blood royal, was regarded, in chusing their dukes or leaders, warlike merit: just as caesar relates of their ancestors in his time, that whenever they went to war, by way either of attack or defence, they _elected_ leaders to command them[d]. this large share of power, thus conferred by the people, though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the prerogative of the crown: and accordingly we find a very ill use made of it by edric duke of mercia, in the reign of king edmond ironside; who, by his office of duke or heretoch, was entitled to a large command in the king's army, and by his repeated treacheries at last transferred the crown to canute the dane. [footnote a: _c. de heretochiis._] [footnote b: "_isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per singulos comitatus, in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent._" _ll. edw. confess._ _ibid._ see also bede, _eccl. hist._ _l._ . _c._ .] [footnote c: _de morib. german._ .] [footnote d: "_quum bellum civitas aut illatum defendit, aut infert, magistratus qui ei bello praesint deliguntur._" _de bell. gall._ _l._ . _c._ .] it seems universally agreed by all historians, that king alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from what was last observed, the dukes seem to have been left in possession of too large and independent a power: which enabled duke harold on the death of edward the confessor, though a stranger to the royal blood, to mount for a short space the throne of this kingdom, in prejudice of edgar atheling, the rightful heir. upon the norman conquest the feodal law was introduced here in all it's rigor, the whole of which is built on a military plan. i shall not now enter into the particulars of that constitution, which belongs more properly to the next part of our commentaries: but shall only observe, that, in consequence thereof, all the lands in the kingdom were divided into what were called knight's fees, in number above sixty thousand; and for every knight's fee a knight or soldier, _miles_, was bound to attend the king in his wars, for forty days in a year; in which space of time, before war was reduced to a science, the campaign was generally finished, and a kingdom either conquered or victorious[e]. by this means the king had, without any expense, an army of sixty thousand men always ready at his command. and accordingly we find one, among the laws of william the conqueror[f], which in the king's name commands and firmly enjoins the personal attendance of all knights and others; "_quod habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et parati ad servitium suum integrum nobis explendum et peragendum, cum opus adfuerit, secundum quod debent de feodis et tenementis suis de jure nobis facere_." this personal service in process of time degenerated into pecuniary commutations or aids, and at last the military part of the feodal system was abolished at the restoration, by statute car. ii. c. . [footnote e: the poles are, even at this day, so tenacious of their antient constitution, that their pospolite, or militia, cannot be compelled to serve above six weeks, or forty days, in a year. mod. univ. hist. xxxiv. .] [footnote f: c. . see co. litt. , .] in the mean time we are not to imagine that the kingdom was left wholly without defence, in case of domestic insurrections, or the prospect of foreign invasions. besides those, who by their military tenures were bound to perform forty days service in the field, the statute of winchester[g] obliged every man, according to his estate and degree, to provide a determinate quantity of such arms as were then in use, in order to keep the peace: and constables were appointed in all hundreds to see that such arms were provided. these weapons were changed, by the statute & ph. & m. c. . into others of more modern service; but both this and the former provision were repealed in the reign of james i[h]. while these continued in force, it was usual from time to time for our princes to to [transcriber's note: duplicate word] issue commissions of array, and send into every county officers in whom they could confide, to muster and array (or set in military order) the inhabitants of every district: and the form of the commission of array was settled in parliament in the hen. iv[i]. but at the same time it was provided[k], that no man should be compelled to go out of the kingdom at any rate, nor out of his shire but in cases of urgent necessity; nor should provide soldiers unless by consent of parliament. about the reign of king henry the eighth, and his children, lord lieutenants began to be introduced, as standing representatives of the crown, to keep the counties in military order; for we find them mentioned as known officers in the statute & ph. & m. c. . though they had not been then long in use, for camden speaks of them[l], in the time of queen elizabeth, as extraordinary magistrates constituted only in times of difficulty and danger. [footnote g: edw. i. c. .] [footnote h: stat. jac. i. c. . jac. i. c. .] [footnote i: rushworth. part . pag. .] [footnote k: stat. edw iii. st. . c. & . edw. iii. st. . c. .] [footnote l: brit. . edit. .] in this state things continued, till the repeal of the statutes of armour in the reign of king james the first: after which, when king charles the first had, during his northern expeditions, issued commissions of lieutenancy and exerted some military powers which, having been long exercised, were thought to belong to the crown, it became a question in the long parliament, how far the power of the militia did inherently reside in the king; being now unsupported by any statute, and founded only upon immemorial usage. this question, long agitated with great heat and resentment on both sides, became at length the immediate cause of the fatal rupture between the king and his parliament: the two houses not only denying this prerogative of the crown, the legality of which right perhaps might be somewhat doubtful; but also seizing into their own hands the intire power of the militia, the illegality of which step could never be any doubt at all. soon after the restoration of king charles the second, when the military tenures were abolished, it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown to govern and command them, and to put the whole into a more regular method of military subordination[m]: and the order, in which the militia now stands by law, is principally built upon the statutes which were then enacted. it is true the two last of them are apparently repealed; but many of their provisions are re-enacted, with the addition of some new regulations, by the present militia laws: the general scheme of which is to discipline a certain number of the inhabitants of every county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and other principal landholders, under a commission from the crown. they are not compellable to march out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to march out of the kingdom. they are to be exercised at stated times: and their discipline in general is liberal and [transcriber's note: 'and' missing here but is in printer's mark on previous page] easy; but, when drawn out into actual service, they are subject to the rigours of martial law, as necessary to keep them in order. this is the constitutional security, which our laws have provided for the public peace, and for protecting the realm against foreign or domestic violence; and which the statutes[n] declare is essentially necessary to the safety and prosperity of the kingdom. [footnote m: car. ii. c. . car. ii. c. . car. ii. c. .] [footnote n: geo. ii. c. , &c.] when the nation is engaged in a foreign war, more veteran troops and more regular discipline may perhaps be necessary, than can be expected from a mere militia. and therefore at such times particular provisions have been usually made for the raising of armies and the due regulation and discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom. for martial law, which is built upon no settled principles, but is entirely arbitrary in it's decisions, is, as sir matthew hale observes[o], in truth and reality no law, but something indulged, rather than allowed as a law: the necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. wherefore edmond earl of kent being taken at pontefract, edw. ii. and condemned by martial law, his attainder was reversed edw. iii. because it was done in time of peace. and it is laid down[p], that if a lieutenant, or other, that hath commission of martial authority, doth in time of peace hang or otherwise execute any man by colour of martial law, this is murder; for it is against _magna carta_[q]. and the petition of right[r] enacts, that no soldier shall be quartered on the subject without his own consent[s]; and that no commission shall issue to proceed within this land according to martial law. and whereas, after the restoration, king charles the second kept up about five thousand regular troops, by his own authority, for guards and garrisons; which king james the second by degrees increased to no less than thirty thousand, all paid from his own civil list; it was made one of the articles of the bill of rights[t], that the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. [footnote o: hist. c.l. c. .] [footnote p: inst. .] [footnote q: _cap._ .] [footnote r: car. i. see also stat. car. ii. c. .] [footnote s: thus, in poland, no soldier can be quartered upon the gentry, the only freemen in that republic. mod. univ. hist. xxxiv. .] [footnote t: stat. w. & m. st. . c. .] but, as the fashion of keeping standing armies has universally prevailed over all europe of late years (though some of it's potentates, being unable themselves to maintain them, are obliged to have recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many years past been annually judged necessary by our legislature, for the safety of the kingdom, the defence of the possessions of the crown of great britain, and the preservation of the balance of power in europe, to maintain even in time of peace a standing body of troops, under the command of the crown; who are however _ipso facto_ disbanded at the expiration of every year, unless continued by parliament. to prevent the executive power from being able to oppress, says baron montesquieu[u], it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit with the people; as was the case at rome, till marius new-modelled the legions by enlisting the rabble of italy, and laid the foundation of all the military tyranny that ensued. nothing then, according to these principles, ought to be more guarded against in a free state, than making the military power, when such a one is necessary to be kept on foot, a body too distinct from the people. like ours therefore, it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no inland fortresses should be allowed. and perhaps it might be still better, if, by dismissing a stated number and enlisting others at every renewal of their term, a circulation could be kept up between the army and the people, and the citizen and the soldier be more intimately connected together. [footnote u: sp. l. . .] to keep this body of troops in order, an annual act of parliament likewise passes, "to punish mutiny and desertion, and for the better payment of the army and their quarters." this regulates the manner in which they are to be dispersed among the several inn-keepers and victuallers throughout the kingdom; and establishes a law martial for their government. by this, among other things, it is enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not give notice to the commanding officer; or shall defect, or list in any other regiment, or sleep upon his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer such punishment as a court martial shall inflict, though it extend to death itself. however expedient the most strict regulations may be in time of actual war, yet, in times of profound peace, a little relaxation of military rigour would not, one should hope, be productive of much inconvenience. and, upon this principle, though by our standing laws[w] (still remaining in force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and the offence is triable by a jury and before the judges of the common law; yet, by our militia laws beforementioned, a much lighter punishment is inflicted for desertion in time of peace. so, by the roman law also, desertion in time of war was punished with death, but more mildly in time of tranquillity[x]. but our mutiny act makes no such distinction: for any of the faults therein mentioned are, equally at all times, punishable with death itself, if a court martial shall think proper. this discretionary power of the court martial is indeed to be guided by the directions of the crown; which, with regard to military offences, has almost an absolute legislative power. "his majesty, says the act, may form articles of war, and constitute courts martial, with power to try any crime by such articles, and inflict such penalties as the articles direct." a vast and most important trust! an unlimited power to create crimes, and annex to them any punishments, not extending to life or limb! these are indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful commands is one. perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise. [footnote w: stat. hen. vi. c. . & edw. vi. c. .] [footnote x: _ff._ . . .] one of the greatest advantages of our english law is, that not only the crimes themselves which it punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to arbitrary discretion: the king by his judges dispenses what the law has previously ordained; but is not himself the legislator. how much therefore is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen! for sir edward coke will inform us[y], that it is one of the genuine marks of servitude, to have the law, which is our rule of action, either concealed or precarious: "_misera est servitus, ubi jus est vagum aut incognitum_." nor is this state of servitude quite consistent with the maxims of sound policy observed by other free nations. for, the greater the general liberty is which any state enjoys, the more cautious has it usually been of introducing slavery in any particular order or profession. these men, as baron montesquieu observes[z], seeing the liberty which others possess, and which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant pleasure in contributing to destroy those privileges, to which they can never be admitted. hence have many free states, by departing from this rule, been endangered by the revolt of their slaves: while, in absolute and despotic governments where there no real liberty exists, and consequently no invidious comparisons can be formed, such incidents are extremely rare. two precautions are therefore advised to be observed in all prudent and free governments; . to prevent the introduction of slavery at all: or, . if it be already introduced, not to intrust those slaves with arms; who will then find themselves an overmatch for the freemen. much less ought the soldiery to be an exception to the people in general, and the only state of servitude in the nation. [footnote y: inst. .] [footnote z: sp. l. . .] but as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by the humanity of our standing laws, they are in some cases put in a much better. by statute eliz. c. . a weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt, and maimed: not forgetting the royal hospital at chelsea for such as are worn out in their duty. officers and soldiers, that have been in the king's service, are by several statutes, enacted at the close of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom (except the two universities) notwithstanding any statute, custom, or charter to the contrary. and soldiers in actual military service may make their wills, and dispose of their goods, wages, and other personal chattels, without those forms, solemnities, and expenses, which the law requires in other cases[a]. our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders upon the ridiculous. for if a soldier, in the article of death, wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament[b]. and thus much for the military state, as acknowleged by the laws of england. [footnote a: stat. car. ii. c. . w. iii. c. . §. .] [footnote b: _si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet._ _cod._ . . .] the _maritime_ state is nearly related to the former; though much more agreeable to the principles of our free constitution. the royal navy of england hath ever been it's greatest defence and ornament: it is it's antient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can ever be apprehended to liberty: and accordingly it has been assiduously cultivated, even from the earliest ages. to so much perfection was our naval reputation arrived in the twelfth century, that the code of maritime laws, which are called the laws of oleron, and are received by all nations in europe as the ground and substruction of all their marine constitutions, was confessedly compiled by our king richard the first, at the isle of oleron on the coast of france, then part of the possessions of the crown of england[c]. and yet, so vastly inferior were our ancestors in this point to the present age, that even in the maritime reign of queen elizabeth, sir edward coke[d] thinks it matter of boast, that the royal navy of england then consisted of _three and thirty_ ships. the present condition of our marine is in great measure owing to the salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of english shipping and seamen was not only encouraged, but rendered unavoidably necessary. by the statute ric. ii. c. . in order to augment the navy of england, then greatly diminished, it was ordained, that none of the king's liege people should ship any merchandize out of or into the realm but only in ships of the king's ligeance, on pain of forfeiture. in the next year, by statute ric. ii. c. . this wise provision was enervated, by only obliging the merchants to give english ships, (if able and sufficient) the preference. but the most beneficial statute for the trade and commerce of these kingdoms is that navigation-act, the rudiments of which were first framed in [e], with a narrow partial view: being intended to mortify the sugar islands, which were disaffected to the parliament and still held out for charles ii, by stopping the gainful trade which they then carried on with the dutch[f]; and at the same time to clip the wings of those our opulent and aspiring neighbours. this prohibited all ships of foreign nations from trading with any english plantations without licence from the council of state. in [g] the prohibition was extended also to the mother country; and no goods were suffered to be imported into england, or any of it's dependencies, in any other than english bottoms; or in the ships of that european nation of which the merchandize imported was the genuine growth or manufacture. at the restoration, the former provisions were continued, by statute car. ii. c. . with this very material improvement, that the master and three fourths of the mariners shall also be english subjects. [footnote c: inst. . _coutumes de la mer._ .] [footnote d: inst. .] [footnote e: scobell .] [footnote f: mod. un. hist. xli. .] [footnote g: scobell. .] many laws have been made for the supply of the royal navy with seamen; for their regulation when on board; and to confer privileges and rewards on them during and after their service. . first, for their supply. the power of impressing men for the sea service by the king's commission, has been a matter of some dispute, and submitted to with great reluctance; though it hath very clearly and learnedly been shewn, by sir michael foster[h], that the practise of impressing, and granting powers to the admiralty for that purpose, is of very antient date, and hath been uniformly continued by a regular series of precedents to the present time: whence he concludes it to be part of the common law[i]. the difficulty arises from hence, that no statute has expressly declared this power to be in the crown, though many of them very strongly imply it. the statute ric. ii. c. . speaks of mariners being arrested and retained for the king's service, as of a thing well known, and practised without dispute; and provides a remedy against their running away. by a later statute[k], if any waterman, who uses the river thames, shall hide himself during the execution of any commission of pressing for the king's service, he is liable to heavy penalties. by another[l], no fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to be taken, to the intent that the justices may chuse out and return such a number of ablebodied men, as in the commission are contained, to serve her majesty. and, by others[m], especial protections are allowed to seamen in particular circumstances, to prevent them from being impressed. all which do most evidently imply a power of impressing to reside somewhere; and, if any where, it must from the spirit of our constitution, as well as from the frequent mention of the king's commission, reside in the crown alone. [footnote h: rep. .] [footnote i: see also comb. .] [footnote k: stat. & ph. & m. c. .] [footnote l: stat. eliz. c. .] [footnote m: stat. & w. iii. c. . ann. c. . & ann. c. . geo. ii. c. . &c.] but, besides this method of impressing, (which is only defensible from public necessity, to which all private considerations must give way) there are other ways that tend to the increase of seamen, and manning the royal navy. parishes may bind out poor boys apprentices to masters of merchantmen, who shall be protected from impressing for the first three years; and if they are impressed afterwards, the masters shall be allowed their wages[n]: great advantages in point of wages are given to volunteer seamen in order to induce them to enter into his majesty's service[o]: and every foreign seaman, who during a war shall serve two years in any man of war, merchantman, or privateer, is naturalized _ipso facto_[p]. about the middle of king william's reign, a scheme was set on foot[q] for a register of seamen to the number of thirty thousand, for a constant and regular supply of the king's fleet; with great privileges to the registered men, and, on the other hand, heavy penalties in case of their non-appearance when called for: but this registry, being judged to be rather a badge of slavery, was abolished by statute ann. c. . [footnote n: stat. ann. c. .] [footnote o: stat. geo. ii. st. . c. .] [footnote p: stat. geo. ii. c. .] [footnote q: stat. & w. iii. c. .] . the method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is directed by certain express rules, articles and orders, first enacted by the authority of parliament soon after the restoration[r]; but since new-modelled and altered, after the peace of aix la chapelle[s], to remedy some defects which were of fatal consequence in conducting the preceding war. in these articles of the navy almost every possible offence is set down, and the punishment thereof annexed: in which respect the seamen have much the advantage over their brethren in the land service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown. yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient; and the temporary duration of the army, which subsisted only from year to year; and might therefore with less danger be subjected to discretionary government. but, whatever was apprehended at the first formation of the mutiny act, the regular renewal of our standing force at the entrance of every year has made this distinction idle. for, if from experience past we may judge of future events, the army is now lastingly ingrafted into the british constitution; with this singularly fortunate circumstance, that any branch of the legislature may annually put an end to it's legal existence, by refusing to concur in it's continuance. [footnote r: stat. car. ii. st. . c. .] [footnote s: stat. geo. ii. c. .] . with regard to the privileges conferred on sailors, they are pretty much the same with those conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by county rates, or the royal hospital at greenwich; with regard also to the exercise of trades, and the power of making informal testaments: and, farther[t], no seaman aboard his majesty's ships can be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not to a less amount. [footnote t: stat. geo. ii. st. . c. .] chapter the fourteenth. of master and servant. having thus commented on the rights and duties of persons, as standing in the _public_ relations of magistrates and people; the method i have marked out now leads me to consider their rights and duties in _private_ oeconomical relations. the three great relations in private life are, . that of _master and servant_; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. . that of _husband and wife_; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. . that of _parent and child_, which is consequential to that of marriage, being it's principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. but, since the parents, on whom this care is primarily incumbent, may be snatched away by death or otherwise, before they have completed their duty, the law has therefore provided a fourth relation; . that of _guardian and ward_, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. of all these relations in their order. in discussing the relation of _master and servant_, i shall, first, consider the several sorts of servants, and how this relation is created and destroyed: secondly, the effects of this relation with regard to the parties themselves: and, lastly, it's effect with regard to other persons. i. as to the several sorts of servants: i have formerly observed[a] that pure and proper slavery does not, nay cannot, subsist in england; such i mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. and indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. the three origins of the right of slavery assigned by justinian[b], are all of them built upon false foundations. as, first, slavery is held to arise "_jure gentium_," from a state of captivity in war; whence slaves are called _mancipia, quasi manu capti_. the conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. but it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. war is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. since therefore the right of _making_ slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. but, secondly, it is said that slavery may begin "_jure civili_;" when one man sells himself to another. this, if only meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in the sense of the laws of old rome or modern barbary, is also impossible. every sale implies a price, a _quid pro quo_, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are held to be in the master's disposal? his property also, the very price he seems to receive, devolves _ipso facto_ to his master, the instant he becomes his slave. in this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? lastly, we are told, that besides these two ways by which slaves "_fiunt_," or are acquired, they may also be hereditary: "_servi nascuntur_;" the children of acquired slaves are, _jure naturae_, by a negative kind of birthright, slaves also. but this being built on the two former rights must fall together with them. if neither captivity, nor the sale of oneself, can by the law of nature and reason, reduce the parent to slavery, much less can it reduce the offspring. [footnote a: pag. .] [footnote b: _servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris._ _inst._ . . .] upon these principles the law of england abhors, and will not endure the existence of, slavery within this nation: so that when an attempt was made to introduce it, by statute edw. vi. c. . which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards[c]. and now it is laid down[d], that a slave or negro, the instant he lands in england, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property. yet, with regard to any right which the master may have acquired, by contract or the like, to the perpetual service of john or thomas, this will remain exactly in the same state as before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term. hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. the law of england acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a jew, a turk, or a heathen, as well as to those who profess the true religion of christ; and it will not dissolve a civil contract, either express or implied, between master and servant, on account of the alteration of faith in either of the contracting parties: but the slave is entitled to the same liberty in england before, as after, baptism; and, whatever service the heathen negro owed to his english master, the same is he bound to render when a christian. [footnote c: stat. & edw. vi. c. .] [footnote d: salk. .] . the first sort of servants therefore, acknowleged by the laws of england, are _menial servants_; so called from being _intra moenia_, or domestics. the contract between them and their masters arises upon the hiring. if the hiring be general without any particular time limited, the law construes it to be a hiring for a year[e]; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well when there is work to be done, as when there is not[f]: but the contract may be made for any larger or smaller term. all single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service, for the promotion of honest industry: and no master can put away his servant, or servant leave his master, either before or at the end of his term, without a quarter's warning; unless upon reasonable cause to be allowed by a justice of the peace[g]: but they may part by consent, or make a special bargain. [footnote e: co. litt. .] [footnote f: f.n.b. .] [footnote g: stat. eliz. c. .] . another species of servants are called _apprentices_ (from _apprendre_, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them: for which purpose our statute law[h] has made minors capable of binding themselves. this is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay to gentlemen, and others. and[i] children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion[k]. apprentices to trades may be discharged on reasonable cause, either at request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions[l]: who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice[m]. and parish apprentices may be discharged in the same manner, by two justices[n]. [footnote h: stat. eliz. c. .] [footnote i: stat. eliz. c. . eliz. c. . jac. i. c. . jac. i. c. . & w. & m. c. . & ann. c. . ann. c. . geo. ii. c. .] [footnote k: salk. . .] [footnote l: stat. eliz. c. .] [footnote m: salk. .] [footnote n: stat. geo. ii. c. .] . a third species of servants are _labourers_, who are only hired by the day or the week, and do not live _intra moenia_, as part of the family; concerning whom the statute so often cited[o] has made many very good regulations; . directing that all persons who have no visible effects may be compelled to work: . defining how long they must continue at work in summer and winter: . punishing such as leave or desert their work: . empowering the justices at sessions, or the sheriff of the county, to settle their wages: and . inflicting penalties on such as either give, or exact, more wages than are so settled. [footnote o: stat. eliz. c. .] . there is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as _stewards_, _factors_, and _bailiffs_: whom however the law considers as servants _pro tempore_, with regard to such of their acts, as affect their master's or employer's property. which leads me to consider, ii. the manner in which this relation, of service, affects either the master or servant. and, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days[p]. in the next place persons serving as apprentices to any trade have an exclusive right to exercise that trade in any part of england[q]. this law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without success. at common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it alledge, that unskilfulness in trades is equally detrimental to the public, as monopolies. this reason indeed only extends to such trades, in the exercise whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a seven years servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. however, the resolutions of the courts have in general rather confined than extended the restriction. no trades are held to be within the statute, but such as were in being at the making of it[r]: for trading in a country village, apprenticeships are not requisite[s]: and following the trade seven years is sufficient without any binding; for the statute only says, the person must serve _as_ an apprentice, and does not require an actual apprenticeship to have existed[t]. [footnote p: see page .] [footnote q: stat. eliz. c. .] [footnote r: lord raym. .] [footnote s: ventr. . keb. .] [footnote t: lord raym. .] a master may by law correct his apprentice or servant for negligence or other misbehaviour, so it be done with moderation[u]: though, if the master's wife beats him, it is good cause of departure[w]. but if any servant, workman, or labourer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb[x]. [footnote u: hawk. p.c. . lamb. eiren. .] [footnote w: f.n.b. .] [footnote x: stat. eliz. c. .] by service all servants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial servants; or according to the appointment of the sheriff or sessions, if labourers or servants in husbandry: for the statutes for regulation of wages extend to such servants only[y]; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages. [footnote y: jones. .] iii. let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may behave towards others on behalf of his servant; and what a servant may do on behalf of his master. and, first, the master may _maintain_, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenance[z]. a master also may bring an action against any man for beating or maiming his servant; but in such case he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial[a]. a master likewise may justify an assault in defence of his servant, and a servant in defence of his master[b]: the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master[c]. also if any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, i may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to restore him upon information and demand[d]. the reason and foundation upon which all this doctrine is built, seem to be the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages. [footnote z: roll. abr. .] [footnote a: rep. .] [footnote b: roll. abr. .] [footnote c: in like manner, by the laws of king alfred, c. . a servant was allowed to fight for his master, a parent for his child, and a husband or father for the chastity of his wife or daughter.] [footnote d: f.n.b. , .] as for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: _nam qui facit per alium, facit per se_[e]. therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. if an innkeeper's servants rob his guests, the master is bound to restitution[f]: for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; _nam, qui non prohibet, cum prohibere possit, jubet_. so likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master[g]: for, although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command. [footnote e: inst. .] [footnote f: noy's max. c. .] [footnote g: roll. abr. .] in the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. if i pay money to a banker's servant, the banker is answerable for it: if i pay it to a clergyman's or a physician's servant, whose usual business it is not to receive money for his master, and he imbezzles it, i must pay it over again. if a steward lets a lease of a farm, without the owner's knowlege, the owner must stand to the bargain; for this is the steward's business. a wife, a friend, a relation, that use to transact business for a man, are _quoad hoc_ his servants; and the principal must answer for their conduct: for the law implies, that they act under a general command; and, without such a doctrine as this, no mutual intercourse between man and man could subsist with any tolerable convenience. if i usually deal with a tradesman by myself, or constantly pay him ready money, i am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if i usually send him upon trust, or sometimes on trust, and sometimes with ready money, i am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority[h]. [footnote h: dr & stud. d. . c. . noy's max. c. .] if a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith's servant lames a horse while he is shoing him, an action lies against the master, and not against the servant. but in these cases the damage must be done, while he is actually employed in the master's service; otherwise the servant shall answer for his own misbehaviour. upon this principle, by the common law[i], if a servant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service, and must himself answer the damage personally. but now the common law is, in the former case, altered by statute ann. c. . which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servants' carelessness. but if such fire happens through negligence of any servant (whose loss is commonly very little) such servant shall forfeit _l_, to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labour for eighteen months[k]. a master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nusance of his majesty's liege people[l]: for the master hath the superintendance and charge of all his houshold. and this also agrees with the civil law[m]; which holds, that the _pater familias_, in this and similar cases, "_ob alterius culpam tenetur, sive servi, sive liberi_." [footnote i: noy's max. c. .] [footnote k: upon a similar principle, by the law of the twelve tables at rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.] [footnote l: noy's max. c. .] [footnote m: _ff._ . . . _inst._ . . .] we may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. the reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong. chapter the fifteenth. of husband and wife. the second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife; or, as most of our elder law books call them, of _baron_ and _feme_. in the consideration of which i shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage. i. our law considers marriage in no other light than as a civil contract. the _holiness_ of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. the punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act _pro salute animae_[a]. and, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, _willing_ to contract; secondly, _able_ to contract; and, lastly, actually _did_ contract, in the proper forms and solemnities required by law. [footnote a: salk. .] first, they must be _willing_ to contract. "_consensus, non concubitus, facit nuptias_," is the maxim of the civil law in this case[b]: and it is adopted by the common lawyers[c], who indeed have borrowed (especially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws. [footnote b: _ff._ . . .] [footnote c: co. litt. .] secondly, they must be _able_ to contract. in general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. what those are, it will here be our business to enquire. now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not _ipso facto_ void, until sentence of nullity be obtained. of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. and these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, _pro salute animarum_. but such marriages not being void _ab initio_, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. for, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties[d]. and therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage and bastardize the issue, the court of king's bench granted a prohibition _quoad hoc_; but permitted them to proceed to punish the husband for incest[e]. these canonical disabilities, being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. but there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. by statute hen. viii. c. . it is declared, that all persons may lawfully marry, but such as are prohibited by god's law; and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowlege, and fruit of children, shall be indissoluble. and (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by the same statute, that nothing (god's law except) shall impeach any marriage, but within the levitical degrees; the farthest of which is that between uncle and niece[f]. by the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowlege: in which case the canon law holds such contract to be a marriage _de facto_. but this branch of the statute was repealed by statute & edw. vi. c. . how far the act of geo. ii. c. . (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of henry viii's statute, and abolish the impediment of pre-contract, i leave to be considered by the canonists. [footnote d: _ibid._] [footnote e: salk. .] [footnote f: gilb. rep. .] the other sort of disabilities are those which are created, or at least enforced, by the municipal laws. and, though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. these civil disabilities make the contract void _ab initio_, and not merely voidable: not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. and, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union. . the first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void[g]: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. and justinian, even in the climate of modern turkey, is express[h], that "_duas uxores eodem tempore habere non licet_." [footnote g: bro. abr. _tit. bastardy._ pl. .] [footnote h: _inst._ . . .] . the next legal disability is want of age. this is sufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; _a fortiori_ therefore it ought to avoid this, the most important contract of any. therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. this is founded on the civil law[i]. but the canon law pays a greater regard to the constitution, than the age, of the parties[k]: for if they are _habiles ad matrimonium_, it is a good marriage, whatever their age may be. and in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again[l]. if the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, _vice versa_, when the wife is of years of discretion, and the husband under[m]. [footnote i: _leon. constit._ .] [footnote k: _decretal._ _l._ . _tit._ . _qu._ .] [footnote l: co. litt. .] [footnote m: _ibid._] . another incapacity arises from want of consent of parents or guardians. by the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. but, by several statutes[n], penalties of _l._ are laid on every clergyman who marries a couple either without publication of banns (which may give notice to parents or guardians) or without a licence, to obtain which the consent of parents or guardians must be sworn to. and by the statute & ph. & m. c. . whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years imprisonment: and her estate during the husband's life shall go to and be enjoyed by the next heir. the civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents power[o]: and, if such consent from the father was wanting, the marriage was null, and the children illegitimate[p]; but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province[q]: and if the father was _non compos_, a similar remedy was given[r]. these provisions are adopted and imitated by the french and hollanders, with this difference: that in france the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty five[s]; and in holland, the sons are at their own disposal at twenty five, and the daughters at twenty[t]. thus hath stood, and thus at present stands, the law in other neighbouring countries. and it has been lately thought proper to introduce somewhat of the same policy into our laws, by statute geo. ii. c. . whereby it is enacted, that all marriages celebrated by licence (for banns suppose notice) where either of the parties is under twenty one, (not being a widow or widower, who are supposed emancipated) without the consent of the father, or, if he be not living, of the mother or guardians, shall be absolutely void. a like provision is made as in the civil law, where the mother or guardian is _non compos_, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity. much may be, and much has been, said both for and against this innovation upon our antient laws and constitution. on the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. on the other hand, restraints upon marriage, especially among the lower class, are evidently detrimental to the public, by hindering the encrease of people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is, _concubitu prohibere vago_. and of this last inconvenience the roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; "_quia non sua culpa, sed parentum, id commisisse cognoscitur_[u]." [footnote n: & w. iii. c. . & w. iii. c. . ann. c. .] [footnote o: _ff._ . . , & .] [footnote p: _ff._ . . .] [footnote q: _cod._ . . , & .] [footnote r: _inst._ . . .] [footnote s: domat, of dowries §. . montesq. sp. l. . .] [footnote t: _vinnius in inst._ _l._ . _t._ .] [footnote u: _nov._ . §. .] . a fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid. idiots and lunatics, by the old common law, might have married[w]; wherein it was manifestly defective. the civil law judged much more sensibly, when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage[x]. this defect in our laws is however remedied with regard to lunatics, and persons under frenzies, by the express words of the statute geo. ii. c. . and idiots, if not within the letter of the statute, are at least within the reason of it. [footnote w: roll. abr. .] [footnote x: _ff._ . _tit._ . _l._ . & _tit._ . _l._ .] lastly, the parties must not only be willing, and able, to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. any contract made, _per verba de praesenti_, or in words of the present tense, and in case of cohabitation _per verba de futuro_ also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it _in facie ecclesiae_. but these verbal contracts are now of no force, to compel a future marriage[y]. neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the arch-bishop of canterbury. it must also be preceded by publication of banns, or by licence from the spiritual judge. many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. it is held to be also essential to a marriage, that it be performed by a person in orders[z]; though the intervention of a priest to solemnize this contract is merely _juris positivi_, and not _juris naturalis aut divini_: it being said that pope innocent the third was the first who ordained the celebration of marriage in the church[a]; before which it was totally a civil contract. and, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute car. ii. c. . but, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is _ipso facto_ void, that is celebrated by a person in orders,--in a parish church or public chapel (or elsewhere, by special dispensation)--in pursuance of banns or a licence,--between single persons,--consenting,--of sound mind,--and of the age of twenty one years;--or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. and no marriage is _voidable_ by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecillity, subsisting previous to the marriage. [footnote y: stat. geo. ii. c. .] [footnote z: salk. .] [footnote a: moor .] ii. i am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. there are two kinds of divorce, the one total, the other partial; the one _a vinculo matrimonii_, the other merely _a mensa et thoro_. the total divorce, _a vinculo matrimonii_, must be for some of the canonical causes of impediment before-mentioned; and those, existing _before_ the marriage, as is always the case in consanguinity; not supervenient, or arising _afterwards_, as may be the case in affinity or corporal imbecillity. for in cases of total divorce, the marriage is declared null, as having been absolutely unlawful _ab initio_; and the parties are therefore separated _pro salute animarum_: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. the issue of such marriage, as is thus entirely dissolved, are bastards[b]. [footnote b: co. litt. .] divorce _a mensa et thoro_ is when the marriage is just and lawful _ab initio_, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. for the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. and this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another[c]. the civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones, (as if a wife goes to the theatre or the public games, without the knowlege and consent of the husband[d]) but among them adultery is the principal, and with reason named the first[e]. but with us in england adultery is only a cause of separation from bed and board[f]: for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties[g], which is now prohibited by the canons[h]. however, divorces _a vinculo matrimonii_, for adultery, have of late years been frequently granted by act of parliament. [footnote c: matt. xix. .] [footnote d: _nov._ .] [footnote e: _cod._ . . .] [footnote f: moor .] [footnote g: mod. .] [footnote h: can. c. .] in case of divorce _a mensa et thoro_, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of the husband's estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. this is sometimes called her _estovers_; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law _de estoveriis habendis_, in order to recover it[i]. it is generally proportioned to the rank and quality of the parties. but in case of elopement, and living with an adulterer, the law allows her no alimony[k]. [footnote i: lev. .] [footnote k: cowel. tit. alimony.] iii. having thus shewn how marriages may be made, or dissolved, i come now, lastly, to speak of the legal consequences of such making, or dissolution. by marriage, the husband and wife are one person in law[l]: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and _cover_, she performs every thing; and is therefore called in our law-french a _feme-covert_; is said to be _covert-baron_, or under the protection and influence of her husband, her _baron_, or lord; and her condition during her marriage is called her _coverture_. upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. i speak not at present of the rights of property, but of such as are merely _personal_. for this reason, a man cannot grant any thing to his wife, or enter into covenant with her[m]: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage[n]. a woman indeed may be attorney for her husband[o]; for that implies no separation from, but is rather a representation of, her lord. and a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death[p]. the husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them, he is obliged to pay them[q]: but for any thing besides necessaries, he is not chargeable[r]. also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries[s]; at least if the person, who furnishes them, is sufficiently apprized of her elopement[t]. if the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together[u]. if the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own[w]: neither can she be sued, without making the husband a defendant[x]. there is indeed one case where the wife shall sue and be sued as a feme sole, viz. where the husband has abjured the realm, or is banished[y]: for then he is dead in law; and, the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy, or could make no defence at all. in criminal prosecutions, it is true, the wife may be indicted and punished separately[z]; for the union is only a civil union. but, in trials of any sort, they are not allowed to be evidence for, or against, each other[a]: partly because it is impossible their testimony should be indifferent; but principally because of the union of person: and therefore, if they were admitted to be witnesses _for_ each other, they would contradict one maxim of law, "_nemo in propria causa testis esse debet_;" and if _against_ each other, they would contradict another maxim, "_nemo tenetur seipsum accusare_." but where the offence is directly against the person of the wife, this rule has been usually dispensed with[b]: and therefore, by statute hen. vii. c. . in case a woman be forcibly taken away, and married, she may be a witness against such her husband, in order to convict him of felony. for in this case she can with no propriety be reckoned his wife; because a main ingredient, her consent, was wanting to the contract: and also there is another maxim of law, that no man shall take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a woman, he could prevent her from being a witness, who is perhaps the only witness, to that very fact. [footnote l: co. litt. .] [footnote m: _ibid._] [footnote n: cro. car. .] [footnote o: f.n.b. .] [footnote p: co. litt. .] [footnote q: salk. .] [footnote r: sid. .] [footnote s: stra. .] [footnote t: lev. .] [footnote u: mod. .] [footnote w: salk. . roll. abr. .] [footnote x: leon. . this was also the practice in the courts of athens. (pott. antiqu. b. . c. .)] [footnote y: co. litt. .] [footnote z: hawk. p.c. .] [footnote a: haw. p.c. .] [footnote b: state trials, vol. . lord audley's case. stra. .] in the civil law the husband and wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries[c]: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband[d]. [footnote c: _cod._ . . .] [footnote d: roll. abr. .] but, though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion. and therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least voidable; except it be a fine, or the like matter of record, in which case she must be solely and secretly examined, to learn if her act be voluntary[e]. she cannot by will devise lands to her husband, unless under special circumstances; for at the time of making it she is supposed to be under his coercion[f]. and in some felonies, and other inferior crimes, committed by her, through constraint of her husband, the law excuses her[g]: but this extends not to treason or murder. [footnote e: litt. §. , .] [footnote f: co. litt. .] [footnote g: hawk. p.c. .] the husband also (by the old law) might give his wife moderate correction[h]. for, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. but this power of correction was confined within reasonable bounds[i]; and the husband was prohibited to use any violence to his wife, _aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet_[k]. the civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, _flagellis et fustibus acriter verberare uxorem_; for others, only _modicam castigationem adhibere_[l]. but, with us, in the politer reign of charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[p]. [footnote h: _ibid._ .] [footnote i: moor. .] [footnote k: f.n.b. .] [footnote l: _nov._ . _c._ . & van leeuwen _in loc._] [footnote m: sid. . keb. .] [footnote n: lev. .] [footnote o: stra. .] [footnote p: stra. . .] these are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. so great a favourite is the female sex of the laws of england. chapter the sixteenth. of parent and child. the next, and the most universal relation in nature, is immediately derived from the preceding, being that between parent and child. children are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider in their order; and first of legitimate children. i. a legitimate child is he that is born in lawful wedlock, or within a competent time afterwards. "_pater est quem nuptiae demonstrant_," is the rule of the civil law[a]; and this holds with the civilians, whether the nuptials happen before, or after, the birth of the child. with us in england the rule is narrowed, for the nuptials must be precedent to the birth; of which more will be said when we come to consider the case of bastardy. at present let us enquire into, . the legal duties of parents to their legitimate children. . their power over them. . the duties of such children to their parents. [footnote a: _ff._ . . .] . and, first, the duties of parents to legitimate children: which principally consist in three particulars; their maintenance, their protection, and their education. the duty of parents to provide for the _maintenance_ of their children is a principle of natural law; an obligation, says puffendorf[b], laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. by begetting them therefore they have entered into a voluntary obligation, to endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. and thus the children will have a perfect _right_ of receiving maintenance from their parents. and the president montesquieu[c] has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way;--shame, remorse, the constraint of her sex, and the rigor of laws;--that stifle her inclinations to perform this duty: and besides, she generally wants ability. [footnote b: l. of n. l. . c. .] [footnote c: sp. l. l. . c. .] the municipal laws of all well-regulated states have taken care to enforce this duty: though providence has done it more effectually than any laws, by implanting in the breast of every parent that natural [greek: storgê], or insuperable degree of affection, which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish. the civil law[d] obliges the parent to provide maintenance for his child; and, if he refuses, "_judex de ea re cognoscet_." nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for so doing; and there are fourteen such reasons reckoned up[e], which may justify such disinherison. if the parent alleged no reason, or a bad, or false one, the child might set the will aside, _tanquam testamentum inofficiosum_, a testament contrary to the natural duty of the parent. and it is remarkable under what colour the children were to move for relief in such a case: by suggesting that the parent had lost the use of his reason, when he made the _inofficious_ testament. and this, as puffendorf observes[f], was not to bring into dispute the testator's power of disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were found defective in reason, then to set them aside. but perhaps this is going rather too far: every man has, or ought to have, by the laws of society, a power over his own property: and, as grotius very well distinguishes[g], natural right obliges to give a _necessary_ maintenance to children; but what is more than that, they have no other right to, than as it is given them by the favour of their parents, or the positive constitutions of the municipal law. [footnote d: _ff._ . . .] [footnote e: _nov._ .] [footnote f: _l._ . _c._ . §. .] [footnote g: _de j.b. & p._ _l._ . _c._ . _n._ .] let us next see what provision our own laws have made for this natural duty. it is a principle of law[h], that there is an obligation on every man to provide for those descended from his loins: and the manner, in which this obligation shall be performed, is thus pointed out[i]. the father, and mother, grandfather, and grandmother of poor impotent persons shall maintain them at their own charges, if of sufficient ability, according as the quarter sessions shall direct: and[k] if a parent runs away, and leaves his children, the churchwardens and overseers of the parish shall seise his rents, goods, and chattels, and dispose of them towards their relief. by the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient ability to keep the child, the husband shall be charged to maintain it[l]: for this being a debt of hers, when single, shall like others extend to charge the husband. but at her death, the relation being dissolved, the husband is under no farther obligation. [footnote h: raym. .] [footnote i: stat. eliz. c. .] [footnote k: stat. geo. i. c. .] [footnote l: styles. . bulstr. .] no person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than _s._ a month. for the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against his will, to provide them with superfluities, and other indulgences of fortune; imagining they might trust to the impulse of nature, if the children were deserving of such favours. yet, as nothing is so apt to stifle the calls of nature as religious bigotry, it is enacted[m], that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the lord chancellor shall by order of court constrain him to do what is just and reasonable. but this did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and therefore in the very next year we find an instance of a jew of immense riches, whose only daughter having embraced christianity, he turned her out of doors; and on her application for relief, it was held she was intitled to none[n]. but this gave occasion[o] to another statute[p], which ordains, that if jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the lord chancellor on complaint may make such order therein as he shall see proper. [footnote m: stat. & w. iii. c. .] [footnote n: lord raym. .] [footnote o: com. journ. feb. mar. .] [footnote p: ann. st. . c. .] our law has made no provision to prevent the disinheriting of children by will; leaving every man's property in his own disposal, upon a principle of liberty in this, as well as every other, action: though perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary subsistence. by the custom of london indeed, (which was formerly universal throughout the kingdom) the children of freemen are entitled to one third of their father's effects, to be equally divided among them; of which he cannot deprive them. and, among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest, by the marriage-articles. heirs also, and children, are favourites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty of the testator's intentions to take away the right of an heir[q]. [footnote q: lev. .] from the duty of maintenance we may easily pass to that of _protection_; which is also a natural duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so strongly as to need rather a check than a spur. a parent may, by our laws, maintain and uphold his children in their lawsuits, without being guilty of the legal crime of maintaining quarrels[r]. a parent may also justify an assault and battery in defence of the persons of his children[s]: nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenged his son's quarrel by beating the other boy, of which beating he afterwards died; it was not held to be murder, but manslaughter merely[t]. such indulgence does the law shew to the frailty of human nature, and the workings of parental affection. [footnote r: inst. .] [footnote s: hawk. p.c. .] [footnote t: cro. jac. . hawk. p.c. .] the last duty of parents to their children is that of giving them an _education_ suitable to their station in life: a duty pointed out by reason, and of far the greatest importance of any. for, as puffendorf very well observes[u], it is not easy to imagine or allow, that a parent has conferred any considerable benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and shameful to himself. yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children[w]; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. the rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family. yet in one case, that of religion, they are under peculiar restrictions: for[x] it is provided, that if any person sends any child under his government beyond the seas, either to prevent it's good education in england, or in order to enter into or reside in any popish college, or to be instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit _l._ which[y] shall go to the sole use and benefit of him that shall discover the offence. and[z] if any parent, or other, shall send or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey, nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute any thing towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his goods and chattels, and likewise all his real estate for life. [footnote u: l. of n. b. . c. . §. .] [footnote w: see page .] [footnote x: stat. jac. i. c. . & jac. i. c. .] [footnote y: stat. & w. iii. c. .] [footnote z: stat. car. i. c. .] . the _power_ of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompence for his care and trouble in the faithful discharge of it. and upon this score the municipal laws of some nations have given a much larger authority to the parents, than others. the antient roman laws gave the father a power of life and death over his children; upon this principle, that he who gave had also the power of taking away[a]. but the rigor of these laws was softened by subsequent constitutions; so that[b] we find a father banished by the emperor hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that "_patria potestas in pietate debet, non in atrocitate, consistere_." but still they maintained to the last a very large and absolute authority: for a son could not acquire any property of his own during the life of his father; but all his acquisitions belonged to the father, or at least the profits of them for his life[c]. [footnote a: _ff._ . . . _cod._ . . .] [footnote b: _ff._ . . .] [footnote c: _inst._ . . .] the power of a parent by our english laws is much more moderate; but still sufficient to keep the child in order and obedience. he may lawfully correct his child, being under age, in a reasonable manner[d]; for this is for the benefit of his education. the consent or concurrence of the parent to the marriage of his child under age, was also _directed_ by our antient law to be obtained: but now it is absolutely _necessary_; for without it the contract is void[e]. and this also is another means, which the law has put into the parent's hands, in order the better to discharge his duty; first, of protecting his children from the snares of artful and designing persons; and, next, of settling them properly in life, by preventing the ill consequences of too early and precipitate marriages. a father has no other power over his sons _estate_, than as his trustee or guardian; for, though he may receive the profits during the child's minority, yet he must account for them when he comes of age. he may indeed have the benefit of his children's labour while they live with him, and are maintained by him: but this is no more than he is entitled to from his apprentices or servants. the legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, i say, over the persons of his children ceases at the age of twenty one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or other guardian, gives place to the empire of reason. yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children. he may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then _in loco parentis_, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed. [footnote d: hawk. p.c. .] [footnote e: stat. geo. ii. c. .] . the _duties_ of children to their parents arise from a principle of natural justice and retribution. for to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws. and the athenian laws[f] carried this principle into practice with a scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty; with an exception to spurious children, to those whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelyhood. the legislature, says baron montesquieu[g], considered, that in the first case the father, being uncertain, had rendered the natural obligation precarious; that, in the second case, he had sullied the life he had given, and done his children the greatest of injuries, in depriving them of their reputation; and that, in the third case, he had rendered their life (so far as in him lay) an insupportable burthen, by furnishing them with no means of subsistence. [footnote f: potter's antiq. b. . c. .] [footnote g: sp. l. l. . c. .] our laws agree with those of athens with regard to the first only of these particulars, the case of spurious issue. in the other cases the law does not hold the tie of nature to be dissolved by any misbehaviour of the parent; and therefore a child is equally justifiable in defending the person, or maintaining the cause or suit, of a bad parent, as a good one; and is equally compellable[h], if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shewn the greatest tenderness and parental piety. [footnote h: stat. eliz. c. .] ii. we are next to consider the case of illegitimate children, or bastards; with regard to whom let us inquire, . who are bastards. . the legal duties of the parents towards a bastard child. . the rights and incapacities attending such bastard children. . who are bastards. a bastard, by our english laws, is one that is not only begotten, but born, out of lawful matrimony. the civil and canon laws do not allow a child to remain a bastard, if the parents afterwards intermarry[i]: and herein they differ most materially from our law; which, though not so strict as to require that the child shall be _begotten_, yet makes it an indispensable condition that it shall be _born_, after lawful wedlock. and the reason of our english law is surely much superior to that of the roman, if we consider the principal end and design of establishing the contract of marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. the main end and design of marriage therefore being to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong; this end is undoubtedly better answered by legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born before wedlock, so as wedlock afterwards ensues: . because of the very great uncertainty there will generally be, in the proof that the issue was really begotten by the same man; whereas, by confining the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child is legitimate, and who is to take care of the child. . because by the roman laws a child may be continued a bastard, or made legitimate, at the option of the father and mother, by a marriage _ex post facto_; thereby opening a door to many frauds and partialities, which by our law are prevented. . because by those laws a man may remain a bastard till forty years of age, and then become legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the protection of infants, is totally frustrated. . because this rule of the roman laws admits of no limitations as to the time, or number, of bastards so to be legitimated; but a dozen of them may, twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. this is plainly a great discouragement to the matrimonial state; to which one main inducement is usually not only the desire of having _children_, but also the desire of procreating lawful _heirs_. whereas our constitutions guard against this indecency, and at the same time give sufficient allowance to the frailties of human nature. for, if a child be begotten while the parents are single, and they will endeavour to make an early reparation for the offence, by marrying within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though not begotten, in lawful wedlock: for this is an incident that can happen but once; since all future children will be begotten, as well as born, within the rules of honour and civil society. upon reasons like these we may suppose the peers to have acted at the parliament of merton, when they refused to enact that children born before marriage should be esteemed legitimate[k]. [footnote i: _inst._ . . . _decretal._ _l._ . _t._ . _c._ .] [footnote k: _rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut illi qui nati sunt post matrimonium, quia ecclesia tales habet pro legitimis. et omnes comites et barones una voce responderunt, quod nolunt leges angliae mutare, quae hucusque usitatae sunt et approbatae._ stat. hen. iii. c. . see the introduction to the great charter, _edit. oxon._ . _sub anno_ .] from what has been said it appears, that all children born before matrimony are bastards by our law; and so it is of all children born so long after the death of the husband, that, by the usual course of gestation, they could not be begotten by him. but, this being a matter of some uncertainty, the law is not exact as to a few days[l]. and this gives occasion to a proceeding at common law, where a widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate: an attempt which the rigor of the gothic constitutions esteemed equivalent to the most atrocious theft, and therefore punished with death[m]. in this case with us the heir presumptive may have a writ _de ventre inspiciendo_, to examine whether she be with child, or not[n]; which is entirely conformable to the practice of the civil law[o]: and, if the widow be upon due examination found not pregnant, any issue she may afterwards produce, though within nine months, will be bastard. but if a man dies, and his widow soon after marries again, and a child is born within such a time, as that by the course of nature it might have been the child of either husband; in this case he is said to be more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which of the fathers he pleases[p]. to prevent this, among other inconveniences, the civil law ordained that no widow should marry _infra annum luctus_[q]; a rule which obtained so early as the reign of augustus[r], if not of romulus: and the same constitution was probably handed down to our early ancestors from the romans, during their stay in this island; for we find it established under the saxon and danish governments[s]. [footnote l: cro. jac. .] [footnote m: stiernhook _de jure gothor._ _l._ . _c._ .] [footnote n: co. litt. .] [footnote o: _ff._ . _tit._ . _per tot._] [footnote p: co. litt. .] [footnote q: _cod._ . . .] [footnote r: but the year was then only _ten_ months. ovid. fast. i. .] [footnote s: _sit omnis vidua sine marito duodecim menses._ _ll. ethelr._ _a.d._ . _ll. canut._ _c._ .] as bastards may be born before the coverture, or marriage state, is begun, or after it is determined, so also children born during wedlock may in some circumstances be bastards. as if the husband be out of the kingdom of england (or, as the law somewhat loosely phrases it, _extra quatuor maria_) for above nine months, so that no access to his wife can be presumed, her issue during that period shall be bastard[t]. but, generally, during the coverture access of the husband shall be presumed, unless the contrary can be shewn[u]; which is such a negative as can only be proved by shewing him to be elsewhere: for the general rule is, _praesumitur pro legitimatione_[w]. in a divorce _a mensa et thoro_, if the wife breeds children, they are bastards; for the law will presume the husband and wife conformable to the sentence of separation, unless access be proved: but, in a voluntary separation by agreement, the law will suppose access, unless the negative be shewn[x]. so also if there is an apparent impossibility of procreation on the part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be bastard[y]. likewise, in case of divorce in the spiritual court _a vinculo matrimonii_, all the issue born during the coverture are bastards[z]; because such divorce is always upon some cause, that rendered the marriage unlawful and null from the beginning. [footnote t: co. litt. .] [footnote u: salk. . p.w. . stra. .] [footnote w: rep. .] [footnote x: salk. .] [footnote y: co. litt. .] [footnote z: _ibid._ .] . let us next see the duty of parents to their bastard children, by our law; which is principally that of maintenance. for, though bastards are not looked upon as children to any civil purposes, yet the ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter[a]. the civil law therefore, when it denied maintenance to bastards begotten under certain atrocious circumstances[b], was neither consonant to nature, nor reason, however profligate and wicked the parents might justly be esteemed. [footnote a: lord raym. . comb. .] [footnote b: _nov._ . _c._ .] the method in which the english law provides maintenance for them is as follows[c]. when a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact. but if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother, or the reputed father with the payment of money or other sustentation for that purpose. and if such putative father, or lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child. yet such is the humanity of our laws, that no woman can be compulsively questioned concerning the father of her child, till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by suffering the parents to escape. [footnote c: stat. eliz. c. . jac. i. c. . car. i. c. . & car. ii. c. . geo. ii. c. .] . i proceed next to the rights and incapacities which appertain to a bastard. the rights are very few, being only such as he can _acquire_; for he can _inherit_ nothing, being looked upon as the son of nobody, and sometimes called _filius nullius_, sometimes _filius populi_[d]. yet he may gain a sirname by reputation[e], though he has none by inheritance. all other children have a settlement in their father's parish; but a bastard in the parish where born, for he hath no father[f]. however, in case of fraud, as if a woman be sent either by order of justices, or comes to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard shall, in the first case, be settled in the parish from whence she was illegally removed[g]; or, in the latter case, in the mother's own parish, if the mother be apprehended for her vagrancy[h]. the incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he have heirs, but of his own body; for, being _nullius filius_, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived. a bastard was also, in strictness, incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church[i]: but this doctrine seems now obsolete; and in all other respects, there is no distinction between a bastard and another man. and really any other distinction, but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parents' crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted of for it's equitable decisions, made bastards in some cases incapable even of a gift from their parents[k]. a bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise[l]: as was done in the case of john of gant's bastard children, by a statute of richard the second. [footnote d: _fort. de ll._ _c._ .] [footnote e: co. litt. .] [footnote f: salk. .] [footnote g: salk. .] [footnote h: stat. geo. ii. c. .] [footnote i: fortesc. _c._ . rep. .] [footnote k: _cod._ . . .] [footnote l: inst. .] chapter the seventeenth. of guardian and ward. the only general private relation, now remaining to be discussed, is that of guardian and ward; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent; that is, for so long time as the ward is an infant, or under age. in examining this species of relationship, i shall first consider the different kinds of guardians, how they are appointed, and their power and duty: next, the different ages of persons, as defined by the law: and, lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship. . the guardian with us performs the office both of the _tutor_ and _curator_ of the roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the _tutor_ was the committee of the person, the _curator_ the committee of the estate. but this office was frequently united in the civil law[a]; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct. [footnote a: _ff._ . . .] of the several species of guardians, the first are guardians _by nature_: viz. the father and (in some cases) the mother of the child. for, if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits[b]. and, with regard to daughters, it seems by construction of the statute & ph. & mar. c. . that the father might by deed or will assign a guardian to any woman-child under the age of sixteen, and if none be so assigned, the mother shall in this case be guardian[c]. there are also guardians _for nurture_[d], which are, of course, the father or mother, till the infant attains the age of fourteen years[e]: and, in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education[f]. next are guardians _in socage_, (an appellation which will be fully explained in the second book of these commentaries) who are also called guardians _by the common law_. these take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian[g]. for the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust[h]. the roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be "_summa providentia_[i]." but in the mean time they forget, how much it is the guardian's interest to remove the incumbrance of his pupil's life from that estate, for which he is supposed to have so great a regard[k]. and this affords fortescue[l], and sir edward coke[m], an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession, is "_quasi agnum committere lupo, ad devorandum_[n]." these guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. this he may do, unless one be appointed by father, by virtue of the statute car. ii. c. . which, considering the imbecillity of judgment in children of the age of fourteen, and the abolition of guardianship _in chivalry_ (which lasted till the age of twenty one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one and twenty years. these are called guardians _by statute_, or _testamentary_ guardians. there are also special guardians _by custom_ of london, and other places[o]; but they are particular exceptions, and do not fall under the general law. [footnote b: co. litt. .] [footnote c: rep. .] [footnote d: co. litt. .] [footnote e: moor. . rep. .] [footnote f: jones . lev. .] [footnote g: litt. §. .] [footnote h: _nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hereditate clamare._ glanv. _l._ . _c._ .] [footnote i: _ff._ . . .] [footnote k: the roman satyrist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian; _pupillum o utinam, quem proximus haeres impello, expungam._ perf. . .] [footnote l: _c._ .] [footnote m: inst. .] [footnote n: this policy of our english law is warranted by the wise institutions of solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (potter's antiqu. l. . c. .) and charondas, another of the grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (petit. _leg. att._ _l._ . _t._ .)] [footnote o: co. litt. .] the power and reciprocal duty of a guardian and ward are the same, _pro tempore_, as that of a father and child; and therefore i shall not repeat them: but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. in order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that court. for the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. in case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes proceed to the removal of him, and appoint another in his stead[p]. [footnote p: sid. . p. will. .] . let us next consider the ward, or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. the ages of male and female are different for different purposes. a male at _twelve_ years old may take the oath of allegiance; at _fourteen_ is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at _seventeen_ may be an executor; and at _twenty one_ is at his own disposal, and may aliene his lands, goods, and chattels. a female also at _seven_ years of age may be betrothed or given in marriage; at _nine_ is entitled to dower; at _twelve_ is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at _fourteen_ is at years of legal discretion, and may choose a guardian; at _seventeen_ may be executrix; and at _twenty one_ may dispose of herself and her lands. so that full age in male or female, is twenty one years, which age is completed on the day preceding the anniversary of a person's birth[q]; who till that time is an infant, and so stiled in law. among the antient greeks and romans _women_ were never of age, but subject to perpetual guardianship[r], unless when married, "_nisi convenissent in manum viri_:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[s]. thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and _juris positivi_, is fixed at different times. scotland agrees with england in this point; (both probably copying from the old saxon constitutions on the continent, which extended the age of minority "_ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but in naples they are of full age at _eighteen_; in france, with regard to marriage, not till _thirty_; and in holland at _twenty five_. [footnote q: salk. . .] [footnote r: pott. antiq. l. . c. . cic. _pro muren._ .] [footnote s: _inst._ . . .] [footnote t: stiernhook _de jure sueonum._ _l._ . _c._ . this is also the period when the king, as well as the subject, arrives at full age in modern sweden. mod. un. hist. xxxiii. .] . infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. an infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise[u]: but he may sue either by his guardian, or _prochein amy_, his next friend who is not his guardian. this _prochein amy_ may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his _prochein amy_, institutes a suit in equity against a fraudulent guardian. in criminal cases, an infant of the age of _fourteen_ years may be capitally punished for any capital offence[w]: but under the age of _seven_ he cannot. the period between _seven_ and _fourteen_ is subject to much incertainty: for the infant shall, generally speaking, be judged _prima facie_ innocent; yet if he was _doli capax_, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion[x]. and sir matthew hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that _malitia supplet aetatem_. [footnote u: co. litt. .] [footnote w: hal. p.c. .] [footnote x: hal. p.c. .] with regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other _laches_ or negligence be imputed to an infant, except in some very particular cases. it is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. but still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. and, first, it is true, that infants cannot aliene their estates: but[y] infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint. also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may present to the benefice when it becomes void[z]. for the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. an infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement[a]. it is, farther, generally true, that an infant, under twenty one, can make no deed that is of any force or effect: yet[b] he may bind himself apprentice by deed indented, or indentures, for seven years; and[c] he may by deed or will appoint a guardian to his children, if he has any. lastly, it is generally true, that an infant can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards[d]. and thus much, at present, for the privileges and disabilities of infants. [footnote y: stat. ann. c. .] [footnote z: co. litt. .] [footnote a: co. litt. .] [footnote b: stat. eliz. c. .] [footnote c: stat. car. ii. c. .] [footnote d: co. litt. .] chapter the eighteenth. of corporations. we have hitherto considered persons in their natural capacities, and have treated of their rights and duties. but, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. these artificial persons are called bodies politic, bodies corporate, (_corpora corporata_) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. to shew the advantages of these incorporations, let us consider the case of a college in either of our universities, founded _ad studendum et orandum_, for the encouragement and support of religion and learning. if this was a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? and, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? so also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. but, when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at it's creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river thames is still the same river, though the parts which compose it are changing every instant. the honour of originally inventing these political constitutions entirely belongs to the romans. they were introduced, as plutarch says, by numa; who finding, upon his accession, the city torn to pieces by the two rival factions of sabines, and romans, thought it a prudent and politic measure, to subdivide these two into many smaller ones, by instituting separate societies of every manual trade and profession. they were afterwards much considered by the civil law[a], in which they were called _universitates_, as forming one whole out of many individuals; or _collegia_, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. but our laws have considerably refined and improved upon the invention, according to the usual genius of the english nation: particularly with regard to sole corporations, consisting of one person only, of which the roman lawyers had no notion; their maxim being that "_tres faciunt collegium_[b]." though they held, that if a corporation, originally consisting of three persons, be reduced to one, "_si universitas ad unum redit_," it may still subsist as a corporation, "_et stet nomen universitatis_[c]." [footnote a: _ff._ _l._ . _t._ . _per tot._] [footnote b: _ff._ . . .] [footnote c: _ff._ . . .] before we proceed to treat of the several incidents of corporations, as regarded by the laws of england, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities. the first division of corporations is into _aggregate_ and _sole_. corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. in this sense the king is a sole corporation[d]: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar. and the necessity, or at least use, of this institution will be very apparent, if we consider the case of a parson of a church. at the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompence to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. but how was this to be effected? the freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. the law therefore has wisely ordained, that the parson, _quatenus_ parson, shall never die, any more than the king; by making him and his successors a corporation. by which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also. [footnote d: co. litt. .] another division of corporations, either sole or aggregate, is into _ecclesiastical_ and _lay_. ecclesiastical corporations are where the members that compose it are entirely spiritual persons; such as bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. these are erected for the furtherance of religion, and the perpetuating the rights of the church. lay corporations are of two sorts, _civil_ and _eleemosynary_. the civil are such as are erected for a variety of temporal purposes. the king, for instance, is made a corporation to prevent in general the possibility of an _interregnum_ or vacancy of the throne, and to preserve the possessions of the crown entire; for, immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity. other lay corporations are erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of london, and other towns: and some for the better carrying on of divers special purposes; as churchwardens, for conservation of the goods of the parish; the college of physicians and company of surgeons in london, for the improvement of the medical science; the royal society, for the advancement of natural knowlege; and the society of antiquarians, for promoting the study of antiquities. and among these i am inclined to think the general corporate bodies of the universities of oxford and cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards _pro opera et labore_, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. the eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed. of this kind are all hospitals for the maintenance of the poor, sick, and impotent; and all colleges, both _in_ our universities and _out_[e] of them: which colleges are founded for two purposes; . for the promotion of piety and learning by proper regulations and ordinances. . for imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. and all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons[f], and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies. [footnote e: such as at manchester, eton, winchester, &c.] [footnote f: lord raym. .] having thus marshalled the several species of corporations, let us next proceed to consider, . how corporations, in general, may be created. . what are their powers, capacities, and incapacities. . how corporations are visited. and . how they may be dissolved. i. corporations, by the civil law, seem to have been created by the mere act, and voluntary association of their members; provided such convention was not contrary to law, for then it was _illicitum collegium_[g]. it does not appear that the prince's consent was necessary to be actually given to the foundation of them; but merely that the original founders of these voluntary and friendly societies (for they were little more than such) should not establish any meetings in opposition to the laws of the state. [footnote g: _ff._ . . . _neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur._ _ff._ . . .] but, with us in england, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given. the king's implied consent is to be found in corporations which exist by force of the _common law_, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. of this sort are the king himself, all bishops, parsons, vicars, churchwardens, and some others; who by common law have ever been held (as far as our books can shew us) to have been corporations, _virtute officii_: and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors, at the same time. another method of implication, whereby the king's consent is presumed, is as to all corporations by _prescription_, such as the city of london, and many others[h], which have existed as corporations, time whereof the memory of man runneth not to the contrary; and therefore are looked upon in law to be well created. for though the members thereof can shew no legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one; and that by the variety of accidents, which a length of time may produce, the charter is lost or destroyed. the methods, by which the king's consent is expressly given, are either by act of parliament or charter. by act of parliament, of which the royal assent is a necessary ingredient, corporations may undoubtedly be created[i]: but it is observable, that most of those statutes, which are usually cited as having created corporations, do either confirm such as have been before created by the king; as in the case of the college of physicians, erected by charter hen. viii[k], which charter was afterwards confirmed in parliament[l]; or, they permit the king to erect a corporation _in futuro_ with such and such powers; as is the case of the bank of england[m], and the society of the british fishery[n]. so that the immediate creative act is usually performed by the king alone, in virtue of his royal prerogative[o]. [footnote h: inst. .] [footnote i: rep. . roll. abr. . [transcriber's note: footnote marker missing in original.]] [footnote k: rep. .] [footnote l: & hen. viii. c. .] [footnote m: stat. & w. & m. c. .] [footnote n: stat. geo. ii. c. .] [footnote o: see page .] all the other methods therefore whereby corporations exist, by common law, by prescription, and by act of parliament, are for the most part reducible to this of the king's letters patent, or charter of incorporation. the king's creation may be performed by the words "_creamus, erigimus, fundamus, incorporamus_," or the like. nay it is held, that if the king grants to a set of men to have _gildam mercatoriam_, a mercantile meeting or assembly[p], this is alone sufficient to incorporate and establish them for ever[q]. [footnote p: _gild_ signified among the saxons a fraternity, derived from the verb [anglo-saxon: gildan] to pay, because every man paid his share towards the expenses of the community. and hence their place of meeting is frequently called the _gild-hall_.] [footnote q: rep. . roll. abr. .] the parliament, we observed, by it's absolute and transcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by statute eliz. c. . which incorporated all hospitals and houses of correction founded by charitable persons, without farther trouble: and the same has been done in other cases of charitable foundations. but otherwise it is not usual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. and, in the particular instance before-mentioned, it was done, as sir edward coke observes[r], to avoid the charges of incorporation and licences of mortmain in small benefactions; which in his days were grown so great, that it discouraged many men to undertake these pious and charitable works. [footnote r: inst. .] the king may grant to a subject the power of erecting corporations[s], though the contrary was formerly held[t]: that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet _qui facit per alium, facit per se_[v]. in this manner the chancellor of the university of oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies, now subsisting, of tradesmen subservient to the students. [footnote s: bro. _abr. tit. prerog._ . viner. _prerog._ . pl. .] [footnote t: yearbook, hen. vii. .] [footnote v: rep. .] when a corporation is erected, a name must be given it; and by that name alone it must sue, and be sued, and do all legal acts; though a very minute variation therein is not material[u]. such name is the very being of it's constitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of it's combination, without which it could not perform it's corporate functions[w]. the name of incorporation, says sir edward coke, is as a proper name, or name of baptism; and therefore when a private founder gives his college or hospital a name, he does it only as godfather; and by that same name the king baptizes the incorporation[x]. [footnote u: rep. . [transcriber's note: footnotes v and u are in this order in the original.]] [footnote w: gilb. hist. c.p. .] [footnote x: rep. .] ii. after a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to consider. some of these are necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course[y]. as, . to have perpetual succession. this is the very end of it's incorporation: for there cannot be a succession for ever without an incorporation[z]; and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off[a]. . to sue or be sued, implead or be impleaded, grant or receive, by it's corporate name, and do all other acts as natural persons may. . to purchase lands, and hold them, for the benefit of themselves and their successors: which two are consequential to the former. . to have a common seal. for a corporation, being an invisible body, cannot manifest it's intentions by any personal act or oral discourse: it therefore acts and speaks only by it's common seal. for, though the particular members may express their private consents to any act, by words, or signing their names, yet this does not bind the corporation: it is the fixing of the seal, and that only, which unites the several assents of the individuals, who compose the community, and makes one joint assent of the whole[b]. . to make by-laws or private statutes for the better government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void. this is also included by law in the very act of incorporation[c]: for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic. and this right of making by-laws for their own government, not contrary to the law of the land, was allowed by the law of the twelve tables at rome[d]. but no trading company is, with us, allowed to make by-laws, which may affect the king's prerogative, or the common profit of the people, unless they be approved by the chancellor, treasurer, and chief justices, or the judges of assise in their circuits[e]. these five powers are inseparably incident to every corporation, at least to every corporation _aggregate_: for two of them, though they may be practised, yet are very unnecessary to a corporation _sole_; viz. to have a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct. [footnote y: rep. . hob. .] [footnote z: rep. .] [footnote a: roll. abr. .] [footnote b: dav. . .] [footnote c: hob. .] [footnote d: _sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto._] [footnote e: stat. hen. vii. c. .] there are also certain privileges and disabilities that attend an aggregate corporation, and are not applicable to such as are sole; the reason of them ceasing, and of course the law. it must always appear by attorney; for it cannot appear in person, being, as sir edward coke says[f], invisible, and existing only in intendment and consideration of law. it can neither maintain, or be made defendant to, an action of battery or such like personal injuries; for a corporation can neither beat, nor be beaten, in it's body politic[g]. a corporation cannot commit treason, or felony, or other crime, in it's corporate capacity[h]: though it's members may, in their distinct individual capacities. neither is it capable of suffering a traitor's, or felon's punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood[i]. it cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. it cannot be a trustee; for such kind of confidence is foreign to the ends of it's institution: neither can it be compelled to perform such trust, because it cannot be committed to prison[k]; for it's existence being ideal, no man can apprehend or arrest it. and therefore also it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands and goods[l]. neither can a corporation be excommunicated; for it has no soul, as is gravely observed by sir edward coke[m]: and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account; for those courts act only _pro salute animae_, and their sentences can only be inforced by spiritual censures: a consideration, which, carried to it's full extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever. [footnote f: rep. .] [footnote g: bro. _abr. tit. corporation._ .] [footnote h: rep. .] [footnote i: the civil law also ordains that, in any misbehaviour of a body corporate, the directors only shall be answerable in their personal capacity, and not the corporation. _ff._ . . .] [footnote k: plowd. .] [footnote l: bro. _abr. tit. corporation._ . _outlawry._ .] [footnote m: rep. .] there are also other incidents and powers, which belong to some sort of corporations, and not to others. an aggregate corporation may take goods and chattels for the benefit of themselves and their successors, but a sole corporation cannot[n]: for such moveable property is liable to be lost or imbezzled, and would raise a multitude of disputes between the successor and executor; which the law is careful to avoid. in ecclesiastical and eleemosynary foundations, the king or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corporations merely lay, constituted for civil purposes, are subject to no particular statutes; but to the common law, and to their own by-laws, not contrary to the laws of the realm[o]. aggregate corporations also, that have by their constitution a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship, except only appointing another: neither are they then capable of receiving a grant; for such corporation is incomplete without a head[p]. but there may be a corporation aggregate constituted without a head[q]: as the collegiate church of southwell in nottinghamshire, which consists only of prebendaries; and the governors of the charter-house, london, who have no president or superior, but are all of equal authority. in aggregate corporations also, the act of the major part is esteemed the act of the whole[r]. by the civil law this major part must have consisted of two thirds of the whole; else no act could be performed[s]: which perhaps may be one reason why they required three at least to make a corporation. but, with us, _any_ majority is sufficient to determine the act of the whole body. and whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act; (which king henry viii found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations) it was therefore enacted by statute hen. viii. c. . that all private statutes shall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obstructed by any one or more, being the minority: but this statute extends not to any negative or necessary voice, given by the founder to the head of any such society. [footnote n: co. litt. .] [footnote o: lord raym. .] [footnote p: co. litt. , .] [footnote q: rep. .] [footnote r: bro. _abr. tit. corporation._ , .] [footnote s: _ff._ . . .] we before observed that it was incident to every corporation, to have a capacity to purchase lands for themselves and successors: and this is regularly true at the common law[t]. but they are excepted out of the statute of wills[u]; so that no devise of lands to a corporation by will is good: except for charitable uses, by statute eliz. c. [w]. and also, by a great variety of statutes[x], their privilege even of purchasing from any living grantor is greatly abridged; so that now a corporation, either ecclesiastical or lay, must have a licence from the king to purchase[y], before they can exert that capacity which is vested in them by the common law: nor is even this in all cases sufficient. these statutes are generally called the statutes of _mortmain_; all purchases made by corporate bodies being said to be purchases in mortmain, _in mortua manu_: for the reason of which appellation sir edward coke[z] offers many conjectures; but there is one which seems more probable than any that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore, holden by them, might with great propriety be said to be held _in mortua manu_. [footnote t: rep. .] [footnote u: hen. viii. c. .] [footnote w: hob. .] [footnote x: from _magna carta_, hen. iii. c. . to geo. ii. c. .] [footnote y: by the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor: _collegium, si nullo speciali privilegio subnixum fit, haereditatem capere non posse, dubium non est_. _cod._ . . .] [footnote z: inst. .] i shall defer the more particular exposition of these statutes of mortmain, till the next book of these commentaries, when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of queen elizabeth, which restrain spiritual and eleemosynary corporations from aliening such lands as they are present in legal possession of: only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations. the general _duties_ of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be reduced to this single one; that of acting up to the end or design, whatever it be, for which they were created by their founder. iii. i proceed therefore next to enquire, how these corporations may be _visited_. for corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. and for that reason the law has provided proper persons to visit, enquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosynary. with regard to all ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. the pope formerly, and now the king, as supreme ordinary, is the visitor of the arch-bishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops in their several dioceses are the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. with respect to all lay corporations, the founder, his heirs, or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit[a]. [footnote a: rep. .] i know it is generally said, that civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. but first, as i have laid it down as a rule that the founder, his heirs, or assigns, are the visitors of all lay-corporations, let us enquire what is meant by the _founder_. the founder of all corporations in the strictest and original sense is the king alone, for he only can incorporate a society: and in civil incorporations, such as mayor and commonalty, &c, where there are no possessions or endowments given to the body, there is no other founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of foundation; the one _fundatio incipiens_, or the incorporation, in which sense the king is the general founder of all colleges and hospitals; the other _fundatio perficiens_, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital[b]. but here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. and, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter, to the patron or endower. [footnote b: rep. .] the king being thus constituted by law the visitor of all civil corporations, the law has also appointed the place, wherein he shall exercise this jurisdiction: which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are enquired into and redressed, and all their controversies decided. and this is what i understand to be the meaning of our lawyers, when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king their founder, in his majesty's court of king's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority. and this is so strictly true, that though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet, in , the authority of this provision coming in dispute, on an appeal preferred to these supposed visitors, they directed the legality of their own appointment to be argued: and, as this college was a mere civil, and not an eleemosynary foundation, they at length determined, upon several days solemn debate, that they had no jurisdiction as visitors; and remitted the appellant (if aggrieved) to his regular remedy in his majesty's court of king's bench. as to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that that property is rightly employed, which would otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder's power, in exclusion of his heir. eleemosynary corporations are chiefly hospitals, or colleges in the university. these were all of them considered by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held[c], that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. this right of lay patrons was indeed abridged by statute hen. v. c. . which ordained, that the ordinary should visit _all_ hospitals founded by subjects; though the king's right was reserved, to visit by his commissioners such as were of royal foundation. but the subject's right was in part restored by statute eliz. c. . which directs the bishop to visit such hospitals only, where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute eliz. c. . are to be visited by such persons as shall be nominated by the respective founders. but still, if the founder appoints nobody, the bishop of the diocese must visit[d]. [footnote c: yearbook, edw. iii. . aff. .] [footnote d: inst. .] colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as _ecclesiastical_, or at least as _clerical_, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. this is evident, because in many of our most ancient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bulle to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. and i have reason to believe, that in one of our colleges, (wherein the bishop of that diocese, in which oxford was formerly comprized, has immemorially exercised visitatorial authority) there is no special visitor appointed by the college statutes: so that the bishop's interposition can be ascribed to nothing else, but his supposed title as ordinary to visit this, among other ecclesiastical foundations. and it is not impossible, that the number of colleges in cambridge, which are visited by the bishop of ely, may in part be derived from the same original. but, whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay-corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law[e]. and yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till king william's time; in the sixth year of whose reign, the famous case of _philips and bury_ happened[f]. in this the main question was, whether the sentence of the bishop of exeter, who (as visitor) had deprived doctor bury the rector of exeter college, could be examined and redressed by the court of king's bench. and the three puisne judges were of opinion, that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. but the lord chief justice, holt, was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course; and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. and, upon this, a writ of error being brought in the house of lords, they reversed the judgment of the court of king's bench, and concurred in sir john holt's opinion. and to this leading case all subsequent determinations have been conformable. but, where the visitor is under a temporary disability, there the court of king's bench will interpose, to prevent a defect of justice. thus the bishop of chester is visitor of manchester college: but, happening also to be warden, the court held that his power was suspended during the union of those offices; and therefore issued a peremptory _mandamus_ to him, as warden, to admit a person intitled to a chaplainship[g]. also it is said[h], that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise, where he mistakes in a thing within his power. [footnote e: lord raym. .] [footnote f: lord raym. . mod. . shower. . skinn. . salk. . carthew. .] [footnote g: stra. .] [footnote h: lutw. .] iv. we come now, in the last place, to consider how corporations may be dissolved. any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act[i]. but the body politic may also itself be dissolved in several ways; which dissolution is the civil death of the corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation; for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth[k]. the grant is indeed only during the life of the corporation; which _may_ endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. and hence it appears how injurious, as well to private as public rights, those statutes were, which vested in king henry viii, instead of the heirs of the founder, the lands of the dissolved monasteries. the debts of a corporation, either to or from it, are totally extinguished by it's dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities[l]: agreeable to that maxim of the civil law[m], "_si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent_." [footnote i: rep. .] [footnote k: co. litt. .] [footnote l: lev. .] [footnote m: _ff._ . . .] a corporation may be dissolved, . by act of parliament, which is boundless in it's operations; . by the natural death of all it's members, in case of an aggregate corporation; . by surrender of it's franchises into the hands of the king, which is a kind of suicide; . by forfeiture of it's charter, through negligence or abuse of it's franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. and the regular course is to bring a writ of _quo warranto_, to enquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. the exertion of this act of law, for the purposes of the state, in the reigns of king charles and king james the second, particularly by seising the charter of the city of london, gave great and just offence; though perhaps, in strictness of law, the proceedings were sufficiently regular: but now[n] it is enacted, that the charter of the city of london shall never more be forfeited for any cause whatsoever. and, because by the common law corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter or established by prescription, it is now provided[o], that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one, made upon the charter or prescriptive day. [footnote n: stat. w. & m. c. .] [footnote o: stat. geo. i. c. .] the end of the first book. a book about lawyers. by john cordy jeaffreson, barrister-at-law author of "a book about doctors," etc., etc. reprinted from the london edition. two volumes in one. new york: _carleton, publisher, madison square._ london: s. low, son & co., m dccc lxxv. entered, according to act of congress, in the year , by g.w. carleton & co., in the clerk's office of the district court of the united states for the southern district of new york. john f. trow & son, printers, - east th st., new york. contents. part i. houses and householders. chapter page i. ladies in law colleges ii. the last of the ladies iii. york house and powis house iv. lincoln's inn fields v. the old law quarter part ii. loves of the lawyers. vi. a lottery vii. good queen bess viii. rejected addresses ix. "cicero" upon his trial x. brothers in trouble xi. early marriages part iii. money. xii. fees to counsel xiii. retainers, general and special xiv. judicial corruption xv. gifts and sales xvi. a rod pickled by william cole xvii. chief justice popham xviii. judicial salaries part iv. costume and toilet. xix. bright and sad xx. millinery xxi. wigs xxii. bands and collars xxiii. bags and gowns xxiv. hats part v. music. xxv. the piano in chambers xxvi. the battle of the organs xxvii. the thickness in the throat part vi. amateur theatricals. xxviii. actors at the bar xxix. "the play's the thing" xxx. the river and the strand by torchlight xxxi. anti-prynne xxxii. an empty grate part vii. legal education xxxiii. inns of court and inns of chancery xxxiv. lawyers and gentlemen xxxv. law-french and law-latin xxxvi. student life in old time xxxvii. readers and mootmen xxxviii. pupils in chambers part viii. mirth. xxxix. wit of lawyers xl. humorous stories xli. wits in 'silk' and punsters in 'ermine' xlii. witnesses xliii. circuiteers xliv. lawyers and saints part ix. at home: in court: and in society. xlv. lawyers at their own tables xlvi. wine xlvii. law and literature part i. houses and householders. chapter i. ladies in law colleges. a law-student of the present day finds it difficult to realize the brightness and domestic decency which characterized the inns of court in the sixteenth, seventeenth, and eighteenth centuries. under existing circumstances, women of character and social position avoid the gardens and terraces of gray's inn and the temple. attended by men, or protected by circumstances that guard them from impertinence and scandal, gentlewomen can without discomfort pass and repass the walls of our legal colleges; but in most cases a lady enters them under conditions that announce even to casual passers the object of her visit. in her carriage, during the later hours of the day, a barrister's wife may drive down the middle temple lane, or through the gate of lincoln's inn, and wait in king's bench walk or new square, until her husband, putting aside clients and papers, joins her for the homeward drive. but even thus placed, sitting in her carriage and guarded by servants, she usually prefers to fence off inquisitive eyes by a bonnet-veil, or the blinds of her carriage-windows. on sunday, the wives and daughters of gentle families brighten the dingy passages of the temple, and the sombre courts of lincoln's inn: for the musical services of the grand church and little chapel, are amongst the religious entertainments of the town. to those choral celebrations ladies go, just as they are accustomed to enter any metropolitan church; and after service they can take a turn in the gardens of either society, without drawing upon themselves unpleasant attention. so also, unattended by men, ladies are permitted to inspect the floral exhibitions with which mr. broome, the temple gardener, annually entertains london sightseers. but, save on these and a few similar occasions and conditions, gentlewomen avoid an inn of court as they would a barrack-yard, unless they have secured the special attendance of at least one member of the society. the escort of a barrister or student, alters the case. what barrister, young or old, cannot recall mirthful eyes that, with quick shyness, have turned away from his momentary notice, as in answer to the rustling of silk, or stirred by sympathetic consciousness of women's noiseless presence, he has raised his face from a volume of reports, and seen two or three timorous girls peering through the golden haze of a london morning, into the library of his inn? what man, thus drawn away for thirty seconds from prosaic toil, has not in that half minute remembered the faces of happy rural homes,--has not recalled old days when his young pulses beat cordial welcome to similar intruders upon the stillness of the bodleian, or the tranquil seclusion of trinity library? what occupant of dreary chambers in the temple, reading this page, cannot look back to a bright day, when young, beautiful, and pure as sanctity, lilian, or kate, or olive, entered his room radiant with smiles, delicate in attire, and musical with gleesome gossip about country neighbors, and the life of a joyous home? seldom does a templar of the present generation receive so fair and innocent a visitor. to him the presence of a gentlewoman in his court, is an occasion for ingenious conjecture; encountered on his staircase she is a cause of lively astonishment. his guests are men, more or less addicted to tobacco; his business callers are solicitors and their clerks; in his vestibule the masculine emissaries of tradesmen may sometimes be found--head-waiters from neighboring taverns, pot-boys from the 'cock' and the 'rainbow.' a printer's devil may from time to time knock at his door. but of women--such women as he would care to mention to his mother and sisters--he sees literally nothing in his dusty, ill-ordered, but not comfortless rooms. he has a laundress, one of a class on whom contemporary satire has been rather too severe. feminine life of another sort lurks in the hidden places of the law colleges, shunning the gaze of strangers by daylight; and even when it creeps about under cover of night, trembling with a sense of its own incurable shame. but of this sad life, the bare thought of which sends a shivering through the frame of every man whom god has blessed with a peaceful home and wholesome associations, nothing shall be said in this page. in past time the life of law-colleges was very different in this respect. when they ceased to be ecclesiastics, and fixed themselves in the hospices which soon after the reception of the gowned tenants, were styled inns of courts; our lawyers took unto themselves wives, who were both fair and discreet. and having so made women flesh of their flesh and bone of their bone, they brought them to homes within the immediate vicinity of their collegiate walls, and sometimes within the walls themselves. those who would appreciate the life of the inns in past centuries, and indeed in times within the memory of living men, should bear this in mind. when he was not on circuit, many a counsellor learned in the law, found the pleasures not less than the business of his existence within the bounds of his 'honorable society.' in the fullest sense of the words, he took his ease in his inn; besides being his workshop, where clients flocked to him for advice, it was his club, his place of pastime, and the shrine of his domestic affections. in this generation a successful chancery barrister, or equity draftsman, looks upon lincoln's inn merely as a place of business, where at a prodigious rent he holds a set of rooms in which he labors over cases, and satisfies the demands of clients and pupils. a century or two centuries since the case was often widely different. the rising barrister brought his bride in triumph to his 'chambers,' and in them she received the friends who hurried to congratulate her on her new honors. in those rooms she dispensed graceful hospitality, and watched her husband's toils. the elder of her children first saw the light in those narrow quarters; and frequently the lawyer, over his papers, was disturbed by the uproar of his heir in an adjoining room. young wives, the mistresses of roomy houses in the western quarters of town, shudder as they imagine the discomforts which these young wives of other days must have endured. "what! live in chambers?" they exclaim with astonishment and horror, recalling the smallness and cheerless aspect of their husbands' business chambers. but past usages must not be hastily condemned,--allowance must be made for the fact that our ancestors set no very high price on the luxuries of elbow-room and breathing-room. families in opulent circumstances were wont to dwell happily, and receive whole regiments of jovial visitors in little houses nigh the strand and fleet street, ludgate hill and cheapside;--houses hidden in narrow passages and sombre courts--houses, compared with which the lowliest residences in a "genteel suburb" of our own time would appear capacious mansions. moreover, it must be borne in mind that the married barrister, living a century since with his wife in chambers--either within or hard-by an inn or court--was, at a comparatively low rent, the occupant of far more ample quarters than those for which a working barrister now-a-days pays a preposterous sum. such a man was tenant of a 'set of rooms' (several rooms, although called 'a chamber') which, under the present system, accommodates a small colony of industrious 'juniors' with one office and a clerk's room attached. married ladies, who have lived in paris or vienna, in the 'old town' of edinburgh, or victoria street, westminster, need no assurance that life 'on a flat' is not an altogether deplorable state of existence. the young couple in chambers had six rooms at their disposal,--a chamber for business, a parlor, not unfrequently a drawing-room, and a trim, compact little kitchen. sometimes they had two 'sets of rooms,' one above another; in which case the young wife could have her bridesmaids to stay with her, or could offer a bed to a friend from the country. occasionally during the last fifty years of the last century, they were so fortunate as to get possession of a small detached house, originally built by a nervous bencher, who disliked the sound of footsteps on the stairs outside his door. time was when the inns comprised numerous detached houses, some of them snug dwellings, and others imposing mansions, wherein great dignitaries lived with proper ostentation. most of them have bean pulled down, and their sites covered with collegiate 'buildings;' but a few of them still remain, the grand piles having long since been partitioned off into chambers, and the little houses striking the eye as quaint, misplaced, insignificant blocks of human habitation. under the trees of gray's inn gardens may be seen two modest tenements, each of them comprising some six or eight rooms and a vestibule. at the present time they are occupied as offices by legal practitioners, and many a day has passed since womanly taste decorated their windows with flowers and muslin curtains; but a certain venerable gentleman, to whom the writer of this page is indebted for much information about the lawyers of the last century, can remember when each of those cottages was inhabited by a barrister, his young wife, and three or four lovely children. into some such a house near lincoln's inn, a young lawyer who was destined to hold the seals for many years, and be also the father of a lord chancellor, married in the year of our lord, . his name was philip yorke: and though he was of humble birth, he had made such a figure in his profession that great men's doors, were open to him. he was asked to dinner by learned judges, and invited to balls by their ladies. in chancery lane, at the house of sir joseph jekyll, master of the rolls, he met mrs. lygon, a beauteous and wealthy widow, whose father was a country squire, and whose mother was the sister of the great lord somers. in fact, she was a lady of such birth, position, and jointure, that the young lawyer--rising man though he was--seemed a poor match for her. the lady's family thought so; and if sir joseph jekyll had not cordially supported the suitor with a letter of recommendation, her father would have rejected him as a man too humble in rank and fortune. having won the lady and married her, mr. philip yorke brought her home to a 'very small house' near lincoln's inn; and in that lowly dwelling, the ground-floor of which was the barrister's office, they spent the first years of their wedded life. what would be said of the rising barrister who, now-a-days, on his marriage with a rich squire's rich daughter and a peer's niece, should propose to set up his household gods in a tiny crip just outside lincoln's inn gate, and to use the parlor of the 'very small house' for professional purposes? far from being guilty of unseemly parsimony in this arrangement, philip yorke paid proper consideration to his wife's social advantages, in taking her to a separate house. his contemporaries amongst the junior bar would have felt no astonishment if he had fitted up a set of chambers for his wealthy and well-descended bride. not merely in his day, but for long years afterward, lawyers of gentle birth and comfortable means, who married women scarcely if at all inferior to mrs. yorke in social condition, lived upon the flats of lincoln's inn and the temple. chapter ii. the last of the ladies. whatever its drawbacks, the system which encouraged the young barrister to marry on a modest income, and make his wife 'happy in chambers,' must have had special advantages. in their inn the husband was near every source of diversion for which he greatly cared, and the wife was surrounded by the friends of either sex in whose society she took most pleasure--friends who, like herself, 'lived in the inn,' or in one of the immediately adjacent streets. in 'hall' he dined and drank wine with his professional compeers and the wits of the bar: the 'library' supplied him not only with law books, but with poems and dramas, with merry trifles written for the stage, and satires fresh from the row; 'the chapel'--or if he were a templer, 'the church'--was his habitual place of worship, where there were sittings for his wife and children as well as for himself; on the walks and under the shady trees of 'the garden' he sauntered with his own, or, better still, a friend's wife, criticising the passers, describing the new comedy, or talking over the last ball given by a judge's lady. at times those gardens were pervaded by the calm of collegiate seclusion, but on 'open days' they were brisk with life. the women and children of the legal colony walked in them daily; the ladies attired in their newest fashions, and the children running with musical riot over lawns and paths. nor were the grounds mere places of resort for lawyers and their families. taking rank amongst the pleasant places of the metropolis, they attracted, on 'open days,' crowds from every quarter of the town--ladies and gallants from soho square and st. james's street, from whitehall and westminster; sightseers from the country and gorgeous alderwomic dowagers from cheapside. from the days of elizabeth till the middle, indeed till the close, of the eighteenth century the ornamental grounds of the four great inns were places of fashionable promenade, where the rank and talent and beauty of the town assembled for display and exercise, even as in our own time they assemble (less universally) in hyde park and kensington gardens. when ladies and children had withdrawn, the quietude of the gardens lured from their chambers scholars and poets, who under murmuring branches pondered the results of past study, or planned new works. ben jonson was accustomed to saunter beneath the elms of lincoln's inn; and steele--alike on 'open' and 'close' days--used to frequent the gardens of the same society. "i went," he writes in may, , "into lincoln's inn walks, and having taking a round or two, i sat down, according to the allowed familiarity of these places, on a bench." in the following november he alludes to the privilege that he enjoyed of walking there as "a favor that is indulged me by several of the benchers, who are very intimate friends, and grown in the neighborhood." but though on certain days, and under fixed regulations, the outside public were admitted to the college gardens, the assemblages were always pervaded by the tone and humor of the law. the courtiers and grand ladies from 'the west' felt themselves the guests of the lawyers; and the humbler folk, who by special grant had acquired the privilege of entry, or whose decent attire and aspect satisfied the janitors of their respectability, moved about with watchfulness and gravity, surveying the counsellors and their ladies with admiring eyes, and extolling the benchers whose benevolence permitted simple tradespeople to take the air side by side with 'the quality.' in , james ralph, in his 'new critical review of the publick buildings,' wrote about the square and gardens of lincoln's inn in a manner which testifies to the respectful gratitude of the public for the liberality which permitted all outwardly decent persons to walk in the grounds. "i may safely add," he says, "that no area anywhere is kept in better order, either for cleanliness and beauty by day, or illumination by night; the fountain in the middle is a very pretty decoration, and if it was still kept playing, as it was some years ago, 'twould preserve its name with more propriety." in his remarks on the chapel the guide observes, "the raising this chapel on pillars affords a pleasing, melancholy walk underneath, and by night, particularly, when illuminated by the lamps, it has an effect that may be felt, but not described." of the gardens mr. ralph could not speak in high praise, for they were ill-arranged and not so carefully kept as the square; but he observes, "they are convenient; and considering their situation cannot be esteemed to much. there is something hospitable in laying them open to public use; and while we share in their pleasures, we have no title to arraign their taste." the chief attraction of lincoln's inn gardens, apart from its beautiful trees, was for many years the terrace overlooking 'the fields,' which was made _temp._ car. ii. at the cost of nearly £ . dugdale, speaking of the recent improvements of the inn, says, "and the last was the enlargement of their garden, beautifying with a large tarras walk on the west side thereof, and raising the wall higher towards lincoln's inne fields, which was done in an. ( car. ii.), the charge thereof amounting to a little less than a thousand pounds, by reason that the levelling of most part of the ground, and raising the tarras, required such great labor." a portion of this terrace, and some of the old trees, were destroyed to make room for the new dining-hall. the old system supplied the barrister with other sources of recreation. within a stone's throw of his residence was the hotel where his club had its weekly meeting. either in hall, or with his family, or at a tavern near 'the courts,' it was his use, until a comparatively recent date, to dine in the middle of the day, and work again after the meal. courts sat after dinner as well as before; and it was observable that counsellors spoke far better when they were full of wine and venison than when they stated the case in the earlier part of the day. but in the evening the system told especially in the barrister's favor. all his many friends lying within a small circle, he had an abundance of congenial society. brother-circuiteers came to his wife's drawing-room for tea and chat, coffee and cards. there was a substantial supper at half-past eight or nine for such guests (supper cooked in my lady's little kitchen, or supplied by the 'society's cook'); and the smoking dishes were accompanied by foaming tankards of ale or porter, and followed by superb and richly aromatic bowls of punch. on occasions when the learned man worked hard and shut out visitors by sporting his oak, he enjoyed privacy as unbroken and complete as that of any library in kensington or tyburnia. if friends stayed away, and he wished for diversion, he could run into the chambers of old college-chums, or with his wife's gracious permission could spend an hour at chatelin's or nando's, or any other coffeehouse in vogue with members of his profession. during festive seasons, when the judges' and leaders' ladies gave their grand balls, the young couple needed no carriage for visiting purposes. from gray's inn to the temple they walked--if the weather was fine. when it rained they hailed a hackney-coach, or my lady was popped into a sedan and carried by running bearers to the frolic of the hour. of course the notes of the preceding paragraphs of this chapter are but suggestions as to the mode in which the artistic reader must call up the life of the old lawyers. encouraging him to realize the manners and usages of several centuries, not of a single generation, they do not attempt to entertain the student with details. it is needless to say that the young couple did not use hackney-coaches in times prior to the introduction of those serviceable vehicles, and that until sedans were invented my lady never used them. it is possible, indeed it is certain, that married ladies living in chambers occasionally had for neighbors on the same staircase women whom they regarded with abhorrence. sometimes it happened that a dissolute barrister introduced to his rooms a woman more beautiful than virtuous, whom he had not married, though he called her his wife. people can no more choose their neighbors in a house broken up into sets of chambers, than they can choose them in the street. but the cases where ladies were daily liable to meet an offensive neighbor on their common staircase were comparatively rare; and when the annoyance actually occurred, the discipline of the inn afforded a remedy. uncleanness too often lurked within the camp, but it veiled its face; and though in rare cases the error and sin of a powerful lawyer may have been notorious, the preccant man was careful to surround himself with such an appearance of respectability that society should easily feign ignorance of his offence. an elizabethan distich--familiar to all barristers, but too rudely worded for insertion in this page--informs us that in the sixteenth century gray's inn had an unenviable notoriety amongst legal hospices for the shamelessness of its female inmates. but the pungent lines must be regarded as a satire aimed at certain exceptional members, rather than as a vivacious picture of the general tone of morals in the society. anyhow the fact that gray's inn[ ] was alone designated as a home for infamy--whilst the inner temple was pointed to as the hospice most popular with rich men, the middle temple as the society frequented by templars of narrow means, and lincoln's inn as the abode of gentlemen--is, of itself, a proof that the pervading manners of the last three institutions were outwardly decorous. under the least favorable circumstances, a barrister's wife living in chambers, within or near lincoln's inn, or the temple, during charles ii.'s reign, fared as well in this respect as she would have done had fortune made her a lady-in-waiting at whitehall. a good story is told of certain visits paid to william murray's chambers at no. , king's bench walk temple, in the year . born in , murray was still a young man when in he made his brilliant speech in behalf of colonel sloper, against whom colley cibber's rascally son had brought an action for _crim. con._ with his wife--the lovely actress who was the rival of mrs. clive. amongst the many clients who were drawn to murray by that speech, sarah, duchess of marlborough, was neither the least powerful nor the least distinguished. her grace began by sending the rising advocate a general retainer, with a fee of a thousand guineas; of which sum he accepted only the two-hundredth part, explaining to the astonished duchess that "the professional fee, with a general retainer, could neither be less nor more than five guineas." if murray had accepted the whole sum he would not have been overpaid for his trouble; for her grace persecuted him with calls at most unseasonable hours. on one occasion, returning to his chambers after "drinking champagne with the wits," he found the duchess's carriage and attendants on king's bench walk. a numerous crowd of footmen and link-bearers surrounded the coach; and when the barrister entered his chambers he encountered the mistress of that army of lackeys. "young man," exclaimed the grand lady, eying the future lord mansfield with a look of warm displeasure, "if you mean to rise in the world, you must not sup out." on a subsequent night sarah of marlborough called without appointment at the same chambers, and waited till past midnight in the hope that she would see the lawyer ere she went to bed. but murray being at an unusually late supper-party, did not return till her grace had departed in an over-powering rage. "i could not make out, sir, who she was," said murray's clerk, describing her grace's appearance and manner, "for she would not tell me her name; _but she swore so dreadfully that i am sure she must be a lady of quality_." perhaps the inns of court may still shelter a few married ladies, who either from love of old-world ways, or from stern necessity, consent to dwell in their husbands' chambers. if such ladies can at the present time be found, the writer of this page would look for them in gray's inn--that straggling caravansary for the reception of money-lenders, bohemians, and eccentric gentlemen--rather than in the other three inns of court, which have undoubtedly quite lost their old population of lady-residents. but from those three hospices the last of the ladies must have retreated at a comparatively recent date. fifteen years since, when the writer of this book was a beardless undergraduate, he had the honor of knowing some married ladies, of good family and unblemished repute, who lived with their husbands in the middle temple. one of those ladies--the daughter of a country magistrate, the sister of a distinguished classic scholar--was the wife of a common law barrister who now holds a judicial appointment in one of our colonies. the women of her old home circle occasionally called on this young wife: but as they could not reach her quarters in sycamore court without attracting much unpleasant observation, their visits were not frequent. living in a barrack of unwed men, that charming girl was surrounded by honest fellows who would have resented as an insult to themselves an impertinence offered to her. still her life was abnormal, unnatural, deleterious; it was felt by all who cared for her that she ought not to be where she was; and when an appointment with a good income in a healthy and thriving colony was offered to her husband, all who knew her, and many who had never spoken to her, rejoiced at the intelligence. at the present time, in the far distant country which looks up to her as a personage of importance, this lady--not less exemplary as wife and mother than brilliant as a woman of society--takes pleasure in recalling the days when she was a prisoner in the temple. one of the last cases of married life in the temple, that came before the public notice, was that of a barrister and his wife who incurred obloquy and punishment for their brutal conduct to a poor servant girl. no one would thank the writer for re-publishing the details of that nauseous illustration of the degradation to which it is possible for a gentleman and scholar to sink. but, however revolting, the case is not without interest for the reader who is curious about the social life of the temple. the portion of the temple in which the old-world family life of the inns held out the longest, is a clump of commodious houses lying between the middle temple garden and essex street, strand. having their entrance-doors in essex street, these houses are, in fact, as private as the residences of any london quarter. the noise of the strand reaches them, but their occupants are as secure from the impertinent gaze or unwelcome familiarities of law-students and barristers' clerks, as they would be if they lived at st. john's wood. in essex street, on the eastern side, the legal families maintained their ground almost till yesterday. fifteen years since the writer of this page used to be invited to dinners and dances in that street--dinners and dances which were attended by prosperous gentlefolk from the west end of the town. at that time he often waltzed in a drawing-room, the windows of which looked upon the spray of the fountain--at which ruth pinch loved to gaze when its jet resembled a wagoner's whip. how all old and precious things pass away! the dear old 'wagoner's whip' has been replaced by a pert, perky squirt that will never stir the heart or brain of a future ruth. [ ] the scandalous state of gray's inn at this period is shown by the following passage in dugdale's 'origines:'--"in eliz. ( jan.) there was an order made that no laundress, nor women called victuallers, should thenceforth come into the gentlemen's chambers of this society, until they were full forty years of age, and not send their maid-servants, of what age soever, in the said gentlemen's chambers, upon penalty, for the first offence of him that should admit of any such, to be put out of commons: and for the second, to be expelled the house." the stringency and severity of this order show a determination on the part of the authorities to cure the evil. chapter iii. york house and powis house. whilst the great body of lawyers dwelt in or hard by the inns, the dignitaries of the judicial bench, and the more eminent members of the bar, had suitable palaces or mansions at greater or less distances from the legal hostelries. the ecclesiastical chancellors usually enjoyed episcopal or archiepiscopal rank, and lived in the london palaces attached to their sees or provinces. during his tenure of the seals, morton, bishop of ely, years before he succeeded to the archbishopric of canterbury, and received the honors of the cardinalate, grew strawberries in his garden on holborn hill, and lived in the palace surrounded by that garden. as archbishop of canterbury, chancellor warham maintained at lambeth palace the imposing state commemorated by erasmus. when wolsey made his first progress to the court of chancery in westminster hall, a progress already alluded to in these pages, he started from the archiepiscopal palace, york house or place--an official residence sold by the cardinal to henry viii. some years later; and when the same superb ecclesiastic, towards the close of his career, went on the memorable embassy to france, he set out from his palace at westminster, "passing through all london over london bridge, having before him of gentlemen a great number, three in rank in black velvet livery coats, and the most of them with great chains of gold about their necks." at later dates gardyner, whilst he held the seals, kept his numerous household at winchester house in southwark; and williams, the last clerical lord keeper, lived at the deanery, westminster. the lay chancellors also maintained costly and pompous establishments, apart from the inns of court. sir thomas more's house stood in the country, flanked by a garden and farm, in the cultivation of which ground the chancellor found one of his chief sources of amusement. in aldgate, lord chancellor audley built his town mansion, on the site of the priory of the canons of the holy trinity of christ church. wriothesley dwelt in holborn at the height of his unsteady fortunes, and at the time of his death. the infamous but singularly lucky rich lived in great st. bartholomew's, and from his mansion there wrote to the duke of northumberland, imploring that messengers might be sent to him to relieve him of the perilous trust of the great seal. christopher hatton wrested from the see of ely the site of holborn, whereon he built his magnificent palace. the reluctance with which the bishop of ely surrendered the ground, and the imperious letter by which elizabeth compelled the prelate to comply with the wish of her favorite courtier, form one of the humorous episodes of that queen's reign. hatton house rose over the soil which had yielded strawberries to morton; and of that house--where the dancing chancellor received elizabeth as a visitor, and in which he died of "diabetes _and_ grief of mind"--the memory is preserved by hatton garden, the name of the street where some of our wealthiest jewelers and gold assayers have places of business. public convenience had long suggested the expediency of establishing a permanent residence for the chancellors of england, when either by successive expressions of the royal will, or by the individual choice of several successive holders of the _clavis regni_, a noble palace on the northern bank of the thames came to be regarded as the proper domicile for the great seal. york house, memorable as the birthplace of francis bacon, and the scene of his brightest social splendor, demands a brief notice. wolsey's 'york house' or whitehall having passed from the province of york to the crown, nicholas heath, archbishop of york, established himself in another york house on a site lying between the strand and the river. in this palace (formerly leased to the see of norwich as a bishop's inn, and subsequently conferred on charles brandon by henry viii.) heath resided during his chancellorship; and when, in consequence of his refusal to take the oath of supremacy, elizabeth deprived him of his archbishopric, york house passed into the hands of her new lord keeper, sir nicholas bacon. on succeeding to the honors of the marble chair, hatton did not move from holborn to the strand; but otherwise all the holders of the great seal, from heath to francis bacon inclusive, seem to have occupied york house; heath, of course, using it by right as archbishop of york, and the others holding it under leases granted by successive archbishops of the northern province. so little is known of bromley, apart from the course which he took towards mary of scotland, that the memory of old york house gains nothing of interest from him. indeed it has been questioned whether he was one of its tenants. puckering, egerton, and francis bacon certainly inhabited it in succession. on bacon's fall it was granted to buckingham, whose desire to possess the picturesque palace was one of the motives which impelled him to blacken the great lawyer's reputation. seized by the long parliament, it was granted to lord fairfax. in the following generation it passed into the hands of the second duke of buckingham, who sold house and precinct for building-ground. the bad memory of the man who thus for gold surrendered a spot of earth sacred to every scholarly englishman is preserved in the names of _george_ street, _duke_ street, _villiers_ street, _buckingham_ street. the engravings commonly sold as pictures of the york house, in which lord bacon kept the seals, are likenesses of the building after it was pulled about, diminished, and modernized, and in no way whatever represent the architecture of the original edifice. amongst the art-treasures of the university of oxford, mr. hepworth dixon fortunately found a rough sketch of the real house, from which sketch mr. e.m. ward drew the vignette that embellishes the title-page of 'the story of lord bacon's life.' after the expulsion of the great seal from old york house, it wandered from house to house, manifesting, however, in its selections of london quarters, a preference for the grand line of thoroughfare between charing cross and the foot of ludgate hill. escaping from the westminster deanery, where williams kept it in a box, the _clavis regni_ inhabited durham house, strand, whilst under lord keeper coventry's care. lord keeper littleton, until he made his famous ride from london to york, lived in exeter house. clarendon resided in dorset house, salisbury court, fleet street, and subsequently in worcester house, strand, before he removed to the magnificent palace which aroused the indignation of the public in st. james's street. the greater and happier part of his official life was passed in worcester house. there he held councils in his bedroom when he was laid up with gout; there king charles visited him familiarly, even condescending to be present to the bedside councils; and there he was established when the great fire of london caused him, in a panic, to send his most valuable furniture to his villa at twickenham. thanet house, aldersgate street, is the residence with which shaftesbury, the politician, is most generally associated; but whilst he was lord chancellor he occupied exeter house, strand, formerly the abode of keeper littleton. lord nottingham slept with the seals under his pillow in great queen street, lincoln's inn fields, the same street in which his successor, lord guildford, had the establishment so racily described by his brother, roger north. and lord jeffreys moving westward, gave noisy dinners in duke street, westminster, where he opened a court-house that was afterwards consecrated as a place of worship, and is still known as the duke street chapel. says pennant, describing the chancellor's residence, "it is easily known by a large flight of stone steps, which his royal master permitted to be made into the park adjacent for the accommodation of his lordship. these steps terminate above in a small court, on three sides of which stands the house." the steps still remain, but their history is unknown to many of the habitual frequenters of the chapel. after jefferys' fall the spacious and imposing mansion, where the _bon-vivants_ of the bar used to drink inordinately with the wits and buffoons of the london theatres, was occupied by government; and there the lords of the admiralty had their offices until they moved to their quarters opposite scotland yard. narcissus luttrell's diary contains the following entry:--"april , . the late lord chancellor's house at westminster is taken for the lords of the admiralty to keep the admiralty office at." william iii., wishing to fix the holders of the great seal in a permanent official home, selected powis house (more generally known by the name of newcastle house), in lincoln's inn fields, as a residence for somers and future chancellors. the treasury minute books preserve an entry of september , , directing a privy seal to "discharge the process for the apprised value of the house, and to declare the king's pleasure that the lord keeper or lord chancellor for the time being should have and enjoy it for the accommodation of their offices." soon after his appointment to the seals, somers took possession of this mansion at the north-west corner of the fields; and after him lord keeper sir nathan wright, lord chancellor cowper, and lord chancellor harcourt used it as an official residence. but the arrangement was not acceptable to the legal dignitaries. they preferred to dwell in their private houses, from which they were not liable to be driven by a change of ministry or a grist of popular disfavor. in the year the mansion was therefore sold to john holles, duke of newcastle, to whom it is indebted for the name which it still bears. this large, unsightly mansion is known to every one who lives in london, and has any knowledge of the political and social life of the earlier georgian courtiers and statesmen. chapter iv. lincoln's inn fields. the annals of the legal profession show that the neighborhood of guildhall was a favorite place of residence with the ancient lawyers, who either held judicial offices within the circle of the lord mayor's jurisdiction, or whose practice lay chiefly in the civic courts. in the fifteenth and sixteenth centuries there was quite a colony of jurists hard by the temple of gogmagog and cosineus--or gog and magog, as the grotesque giants are designated by the unlearned, who know not the history of the two famous effigies, which originally figured in an elizabethan pageant, stirring the wonder of the illiterate, and reminding scholars of two mythical heroes about whom the curious reader of this paragraph may learn further particulars by referring to michael drayton's 'polyolbion.' in milk street, cheapside, lived sir john more, judge in the court of king's bench; and in milk street, a.d. , was born sir john's famous son thomas, the chancellor, who was at the same time learned and simple, witty and pious, notable for gentle meekness and firm resolve, abounding with tenderness and hot with courage. richard rich--who beyond scroggs or jeffreys deserves to be remembered as the arch-scoundrel of the legal profession--was one of thomas more's playmates and boon companions for several years of their boyhood and youth. richard's father was an opulent mercer, and one of sir john's near neighbors; so the youngsters were intimate until master dick, exhibiting at an early age his vicious propensities, came to be "esteemed very light of his tongue, a great dicer and gamester, and not of any commendable fame." on marrying his first wife sir thomas more settled in a house in bucklersbury, the city being the proper quarter for his residence, as he was an under-sheriff of the city of london, in which character he both sat in the court of the lord mayor and sheriffs, and presided over a separate court on the thursday of each week. whilst living in bucklersbury he had chambers in lincoln's inn. on leaving bucklersbury he took a house in crosby place, from which he moved, in , to chelsea, in which parish he built the house that was eventually pulled down by sir hans sloane in the year . a generation later, sir nicholas bacon was living in noble street, foster lane, where he had built the mansion known as bacon house, in which he resided till, as lord keeper, he took possession of york house. chief justice bramston lived, at different parts of his career, in whitechapel; in philip lane, aldermanbury; and (after his removal from bosworth court) in warwick lane, sir john bramston (the autobiographer) married into a house in charterhouse yard, where his father, the chief justice, resided with him for a short time. but from an early date, and especially during the seventeenth and eighteenth centuries, the more prosperous of the working lawyers either lived within the walls of the inns, or in houses lying near the law colleges. fleet street, the strand, holborn, chancery lane, and the good streets leading into those thoroughfares, contained a numerous legal population in the times between elizabeth's death and george iii.'s first illness. rich benchers and judges wishing for more commodious quarters than they could obtain at any cost within college-walls, erected mansions in the immediate vicinity of their inns; and their example was followed by less exalted and less opulent members of the bar and judicial bench. the great lord strafford first saw the light in chancery lane, in the house of his maternal grandfather, who was a bencher of lincoln's inn. lincoln's inn fields was principally built for the accommodation of wealthy lawyers; and in charles ii.'s reign queen street, lincoln's inn fields was in high repute with legal magnates. sir edward coke lived alternately in chambers, and in hatton house, holborn, the palace that came to him by his second marriage. john kelyng's house stood in hatton garden, and there he died in . in his mansion in lincoln's inn fields, sir harbottle grimston, on june , (shortly before his appointment to the mastership of the rolls, for which place he is said to have given clarendon £ ), entertained charles ii. and a grand gathering of noble company. after his marriage francis north took his high-born bride into chambers, which they inhabited for a short time until a house in chancery lane, near serjeants' inn, was ready for their use. on nov. , ,--the year of the fire of london, in which year hyde had his town house in the strand--glyn died in his house, in portugal row, lincoln's inn fields. on june , , henry pollexfen, chief justice of common pleas, expired in his mansion in lincoln's inn fields. these addresses--taken from a list of legal addresses lying before the writer--indicate with sufficient clearness the quarter of the town in which charles ii.'s lawyers mostly resided. under charles ii. the population of the inns was such that barristers wishing to marry could not easily obtain commodious quarters within college-walls. dugdale observes "that all but the benchers go two to a chamber: a bencher hath only the privilege of a chamber to himself." he adds--"if there be any one chamber consisting of two parts, and the one part exceeds the other in value, and he who hath the best part sells the same, yet the purchaser shall enter into the worst part; for it is a certain rule that the auntient in the chamber--_viz._, he who was therein first admitted, without respect to their antiquity in the house, hath his choice of either part." this custom of sharing chambers gave rise to the word 'chumming,' an abbreviation of 'chambering.' barristers in the present time often share a chamber--_i.e._, set of rooms. in the seventeenth century an utter-barrister found the half of a set of rooms inconveniently narrow quarters for himself and wife. by arranging privately with a non-resident brother of the long robe, he sometimes obtained an entire "chamber," and had the space allotted to a bencher. when he could not make such an arrangement, he usually moved to a house outside the gate, but in the immediate vicinity of his inn, as soon as his lady presented him with children, if not sooner. of course working, as well as idle, members of the profession were found in other quarters. some still lived in the city; others preferred more fashionable districts. roger north, brother of the lord keeper and son of a peer, lived in the piazza of covent garden, in the house formerly occupied lely the painter. to this house sir dudley north moved from his costly and dark mansion in the city, and in it he shortly afterwards died, under the hands of dr. radcliffe and the prosperous apothecary, mr. st. amand. "he had removed," writes roger, "from his great house in the city, and came to that in the piazza which sir peter lely formerly used, and i had lived in alone for divers years. we were so much together, and my incumbrances so small, that so large a house might hold us both." roger was a practicing barrister and recorder of bristol. during his latter years sir john bramston (the autobiographer) kept house in greek street, soho. in the time of charles ii. the wealthy lawyers often maintained suburban villas, where they enjoyed the air and pastimes of the country. when his wife's health failed, francis north took a villa for her at hammersmith, "for the advantage of better air, which he thought beneficial for her;" and whilst his household tarried there, he never slept at his chambers in town, "but always went home to his family, and was seldom an evening without company agreeable to him." in his latter years, chief justice pemberton had a rural mansion in highgate, where his death occurred on june , , in the th year of his age. a pleasant chapter might be written on the suburban seats of our great lawyers from the restoration down to the present time. lord mansfield's 'kenwood' is dear to all who are curious in legal _ana_. charles yorke had a villa at highgate, where he entertained his political and personal friends. holland, the architect, built a villa at dulwich for lord thurlow; and in consequence of a quarrel between the chancellor and the builder, the former took such a dislike to the house, that after its completion he never slept a night in it, though he often passed his holidays in a small lodge standing in the grounds of the villa. "lord thurlow," asked a lady of him, as he was leaving the queen's drawing-room, "when are you going into your new house?" "madam," answered the surly chancellor, incensed by her curiosity, "the queen has asked me that impudent question, and i would not answer her; i will not tell you." for years loughborough and erskine had houses in hampstead. "in lord mansfield's time," erskine once said to lord campbell, "although the king's bench monopolized all the common-law business, the court often rose at one or two o'clock--the papers, special, crown, and peremptory, being cleared; and then i refreshed myself by a drive to my villa at hampstead." it was on hampstead heath that loughborough, meeting erskine in the dusk, said, "erskine, you must not take paine's brief;" and received the prompt reply, "but i have been retained, and i will take it, by g-d!" much of that which is most pleasant in erskine's career occurred at his hampstead villa. of lord kenyon's weekly trips from his mansion in lincoln's inn fields to his farm-house at richmond notice has been taken in a previous chapter. the memory of charles abbott's hendon villa is preserved in the name, style, and title of lord tenterden, of hendon, in the county of middlesex. indeed, lawyers have for many generations manifested much fondness for fresh air; the impure atmosphere of their courts in past time apparently whetting their appetites for wholesome breezes. throughout the eighteenth century lincoln's inn fields, an open though disorderly spot, was a great place for the residence of legal magnates. somers, nathan wright, cowper, harcourt, successively inhabited powis house. chief justice parker (subsequently lord chancellor macclesfield) lived there when he engaged philip yorke (then an attorney's articled clerk, but afterwards lord chancellor of england) to be his son's law tutor. on the south side of the square, lord chancellor henley kept high state in the family mansion that descended to him on the death of his elder brother, and subsequently passed into the hands of the surgeons, whose modest but convenient college stands upon its site. wedderburn and erskine had their mansions in lincoln's inn fields, as well as their suburban villas. and between the lawyers of the restoration and the judges of george iii.'s reign, a large proportion of our most eminent jurists and advocates lived in that square and the adjoining streets; such as queen street on the west, serle street, carey street, portugal street, chancery lane, on the south and south-east. the reader, let it be observed, may not infer that this quarter was confined to legal residents. the lawyers were the most conspicuous and influential occupants; but they had for neighbors people of higher quality, who, attracted to the square by its openness, or the convenience of its site, or the proximity of the law colleges, made it their place of abode in london. such names as those of the earl of lindsey and the earl of sandwich in the seventeenth, and of the duke of ancaster and the duke of newcastle in the eighteenth century, establish the patrician character of the quarter for many years. moreover, from the books of popular antiquaries, a long list might be made of wits, men of science, and minor celebrities, who, though in no way personally connected with the law, lived during the same period under the shadow of lincoln's inn. whilst lincoln's inn fields took rank amongst the most aristocratic quarters of the town, it was as disorderly a square as could be found in all london. royal suggestions, the labors of a learned committee especially appointed by james i. to decide on a proper system of architecture, and inigo jones's magnificent but abortive scheme had but a poor result. in queen anne's reign, and for twenty years later, the open space of the fields was daily crowded with beggars, mountebanks, and noisy rabble; and it was the scene of constant uproar and frequent riots. as soon as a nobleman's coach drew up before one of the surrounding mansions, a mob of half-naked rascals swarmed about the equipage, asking for alms in alternate tones of entreaty and menace. pugilistic encounters, and fights resembling the faction fights of an irish row, were of daily occurrence there; and when the rabble decided on torturing a bull with dogs, the wretched beast was tied to a stake in the centre of the wide area, and there baited in the presence of a ferocious multitude, and to the diversion of fashionable ladies, who watched the scene from their drawing-room windows. the sacheverell outrage was wildest in this chosen quarter of noblemen and blackguards; and in george ii.'s reign, when sir joseph jekyll, the master of the rolls, made himself odious to the lowest class by his act for laying an excise upon gin, a mob assailed him in the middle of the fields, threw him to the ground, kicked him over and over, and savagely trampled upon him. it was a marvel that he escaped with his life; but with characteristic good humor, he soon made a joke of his ill-usage, saying that until the mob made him their football he had never been master of _all_ the _rolls_. soon after this outbreak of popular violence, the inhabitants enclosed the middle of the area with palisades, and turned the enclosure into an ornamental garden. describing the fields in , the year in which the obnoxious act concerning gin became law, james ralph says, "several of the original houses still remain, to be a reproach to the rest; and i wish the disadvantageous comparison had been a warning to others to have avoided a like mistake.... but this is not the only quarrel i have to lincoln's inn fields. the area is capable of the highest improvement, might be made a credit to the whole city, and do honor to those who live round it; whereas at present no place can be more contemptible or forbidding; in short, it serves only as a nursery for beggars and thieves, and is a daily reflection on those who suffer it to be in its abandoned condition." during the eighteenth century, a tendency to establish themselves in the western portion of the town was discernible amongst the great law lords. for instance, lord cowper, who during his tenure of the seals resided in powis house, during his latter years occupied a mansion in great george street, westminster--once a most fashionable locality, but now a street almost entirely given up to civil engineers, who have offices there, but usually live elsewhere. in like manner, lord harcourt, moving westwards from lincoln's inn fields, established himself in cavendish square. lord henley, on retiring from the family mansion in lincoln's inn fields, settled in grosvenor square. lord camden lived in hill street, berkeley square. on being entrusted with the sole custody of the seals, lord apsley (better known as lord chancellor bathurst) made his first state-progress to westminster hall from his house in dean street, soho; but afterwards moving farther west, he built apsley house (familiar to every englishman as the late duke of wellington's town mansion) upon the site of squire western's favorite inn--the 'hercules' pillars.' chapter v. the old law quarter. fifteen years since the writer of this page used to dine with a conveyancer--a lawyer of an old and almost obsolete school--who had a numerous household, and kept a hospitable table in lincoln's inn fields; but the conveyancer was almost the last of his species. the householding legal _resident_ of the fields, like the domestic resident of the temple, has become a feature of the past. among the ordinary nocturnal population of the square called lincoln's inn fields, may be found a few solicitors who sleep by night where they work by day, and a sprinkling of young barristers and law students who have residential chambers in grand houses that less than a century since were tenanted by members of a proud and splendid aristocracy; but the gentle families have by this time altogether disappeared from the mansions. but long before this aristocratic secession, the lawyers took possession of a new quarter. the great charm of lincoln's inn fields had been the freshness of the air which played over the open space. so also the recommendation of great queen street had been the purity of its rural atmosphere. built between and , that thoroughfare--at present hemmed in by fetid courts and narrow passages--caught the keen breezes of hampstead, and long maintained a character for salubrity as well as fashion. of those fine squares and imposing streets which lie between high holborn and hampstead, not a stone had been laid when the ground covered by the present freemason's tavern was one of the most desirable sites of the metropolis. indeed, the houses between holborn and great queen street were not erected till the mansions on the south side of the latter thoroughfare--built long before the northern side--had for years commanded an unbroken view of holborn fields. notwithstanding many gloomy predictions of the evils that would necessarily follow from over-building, london steadily increased, and enterprising architects deprived lincoln's inn fields and great queen street of their rural qualities. crossing holborn, the lawyers settled on a virgin plain beyond the ugly houses which had sprung up on the north of great queen street, and on the country side of holborn. speedily a new quarter arose, extending from gray's inn on the east to southampton row on the west, and lying between holborn and the line of ormond street, red lion street, bedford row, great ormond street, little ormond street, great james street, and little james street were amongst its best thoroughfares; in its centre was red lion square, and in its northwestern corner lay queen's square. steadily enlarging its boundaries, it comprised at later dates guildford street, john's street, doughty street, mecklenburgh square, brunswick square, bloomsbury square, russell square, bedford square--indeed, all the region lying between gray's inn lane (on the east), tottenham court road (on the west), holborn (on the south), and a line running along the north of the foundling hospital and 'the squares.' of course this large residential district was more than the lawyers required for themselves. it became and long remained a favorite quarter with merchants, physicians,[ ] and surgeons; and until a recent date it comprised the mansions of many leading members of the aristocracy. but from its first commencement it was so intimately associated with the legal profession that it was often called the 'law quarter;' and the writer of this page has often heard elderly ladies and gentlemen speak of it as the 'old law quarter.' although lawyers were the earliest householders in this new quarter, its chief architect encountered at first strong opposition from a section of the legal profession. anxious to preserve the rural character of their neighborhood, the gentlemen of gray's inn were greatly displeased with the proposal to lay out holborn fields in streets and squares. under date june , , narcissus luttrell wrote in his diary--"dr. barebone, the great builder, having some time since bought the red lyon fields, near graie's inn walks, to build on, and having for that purpose employed severall workmen to goe on with the same, the gentlemen of graie's inn took notice of it, and, thinking it an injury to them, went with a considerable body of persons; upon which the workmen assaulted the gentlemen, and flung bricks at them, and the gentlemen at them again. so a sharp engagement ensued, but the gentlemen routed them at last, and brought away one or two of the workmen to graie's inn; in this skirmish one or two of the gentlemen and servants of the house were hurt, and severall of the workmen." james ralph's remarks on the principal localities of this district are interesting. "bedford row," he says, "is one of the most noble streets that london has to boast of, and yet there is not one house in it which deserves the least attention." he tells us that "ormond street is another place of pleasure, and that side of it next the fields is, beyond question, one of the most charming situations about town." this 'place of pleasure' is now given up for the most part to hospitals and other charitable institutions, and to lodging-houses of an inferior sort. passing on to bloomsbury square, and speaking of the duke of bedford's residence, which stood on the north side of the square, he says, "then behind it has the advantage of most agreeable gardens, and a view of the country, which would make a retreat from the town almost unnecessary, besides the opportunity of exhibiting another prospect of the building, which would enrich the landscape and challenge new approbation." this was written in . at that time the years of two generations were appointed to pass away ere the removal of bedford house should make way for lower bedford place, leading into russell square. so late as the opening years of george iii.'s reign, queen's square enjoyed an unbroken prospect in the direction of highgate and hampstead. 'the foreigner's guide: or a necessary and instructive companion both to the foreigner and native, in their tours through the cities of london and westminster' ( ), contains the following passage:--"queen's square, which is pleasantly situated at the extreme part of the town, has a fine open view of the country, and is handsomely built, as are likewise the neighboring streets--viz., southampton row, ormond street, &c. in this last is powis house, so named from the marquis of powis, who built the present stately structure in the year . it is now the town residence of the earl of hardwicke, late lord chancellor. the apartments are noble, and the whole edifice is commendable for its situation, and the fine prospect of the country. not far from thence is bloomsbury square. this square is commendable for its situation and largeness. on the north side is the house of the duke of bedford. this building was erected from a design of inigo jones, and is very elegant and spacious." from the duke's house in bloomsbury square and his surrounding property, the political party, of which he was the chief, obtained the nickname of the bloomsbury gang. chief justice holt died march , , at his house[ ] in bedford row. in red lion square chief justice raymond had the town mansion wherein he died on april , ; twelve years after sir john pratt, lord camden's father, died at his house in ormond street. on december , , chief justice willes died at his house in bloomsbury square. chagrin at missing the seals through his own arrogance, when they had been actually offered to him, was supposed to be a principal cause of the chief justice's death. his friends represented that he died of a broken heart; to which assertion flippant enemies responded that no man ever had a heart after living seventy-four years. murray for many years inhabited a handsome house in lincoln's inn fields; but his name is more generally associated with bloomsbury square, where stood the house which was sacked and burnt by the gordon rioters. in bloomsbury square our grandfathers used to lounge, watching the house of edward law, subsequently lord ellenborough, in the hope of seeing mrs. law, as she watered the flowers of her balcony. mrs. law's maiden name was towry, and, as a beauty, she remained for years the rage of london. even at this date there remain a few aged gentlemen whose eyes sparkle and whose checks flush when they recall the charms of the lovely creature who became the wife of ungainly edward law, after refusing him on three separate occasions. on becoming lord ellenborough and chief justice, edward law moved to a great mansion in st. james's square, the size of which he described to a friend by saying: "sir, if you let off a piece of ordnance in the hall, the report is not heard in the bedrooms." in this house the chief justice expired, on december , . speaking of lord ellenborough's residence in st. james's square, lord campbell says: "this was the first instance of a common law judge moving to the 'west end.' hitherto all the common law judges had lived within a radius of half a mile from lincoln's inn; but they are now spread over the regent's park, hyde park gardens, and kensington gore." lord harwicke and lord thurlow have been more than once mentioned as inhabitants of ormond street. eldon's residences may be noticed with advantage in this place. on leaving oxford and settling in london, he took a small house for himself and mrs. scott in cursitor street, chancery lane. about this dwelling he wrote to his brother henry:--"i have got a house barely sufficient to hold my small family, which (so great is the demand for them here) will, in rent and taxes, cost me annually six pounds." to this house he used to point in the days of his prosperity, and, in allusion to the poverty which he never experienced, he would add, "there was my first perch. many a time have i run down from cursitor street to fleet market and bought sixpenn'orth of sprats for our supper." after leaving cursitor street, he lived in carey street, lincoln's inn fields, where also, in his later years, he believed himself to have endured such want of money that he and his wife were glad to fill themselves with sprats. when he fixed this anecdote upon carey street, the old chancellor used to represent himself as buying the sprats in clare market instead of fleet market. after some successful years he moved his household from the vicinity of lincoln's inn, and took a house in the law quarter, selecting one of the roomy houses (no. ) of gower street, where he lived when as attorney general he conducted the futile prosecutions of hardy, horne tooke, and thelwall, in . on quitting gower street, eldon took the house in bedford square, which witnessed so many strange scenes during his tenure of the seals, and also during his brief exclusion from office. in bedford square he played the part of chivalric protector to the princess of wales, and chuckled over the proof-sheets of that mysterious 'book' by the publication of which the injured wife and the lawyer hoped to take vengeance on their common enemy. there the chancellor, feeling it well to protract his flirtation with the princess of wales, entertained her in the june of , with a grand banquet, from which lady eldon was compelled by indisposition to be absent. and there, four years later, when he was satisfied that her royal highness's good opinion could be of no service to him, the crafty, self-seeking minister gave a still more splendid dinner to the husband whose vices he had professed to abhor, whose meanness of spirit he had declared the object of his contempt. "however," writes lord campbell, with much satiric humor, describing this alliance between the selfish voluptuary and the equally selfish lawyer, "he was much comforted by having the honor, at the prorogation, of entertaining at dinner his royal highness the regent, with whom he was now a special favorite, and who, enjoying the splendid hospitality of bedford square, forgot that the princess of wales had sat in the same room; at the same table; on the same chair; had drunk of the same wine; out of the same cup; while the conversation had turned on her barbarous usage, and the best means of publishing to the world _her_ wrongs and _his_ misconduct." another of the prince regent's visits to bedford square is surrounded with comic circumstances and associations. in the april of , a mastership of chancery became vacant by the death of mr. morris; and forthwith the chancellor was assailed with entreaties from every direction for the vacant post. for two months eldon, pursuing that policy of which he was a consummate master, delayed to appoint; but on june , he disgusted the bar and shocked the more intelligent section of london society, by conferring the post on jekyll, the courtly _bon vivant_ and witty descendant of sir joseph jekyll, master of the rolls. amiable, popular, and brilliant, jekyll received the congratulations of his numerous personal friends; but beyond the circle of his private acquaintance the appointment created lively dissatisfaction--dissatisfaction which was heightened rather than diminished by the knowledge that the placeman's good fortune was entirely due to the personal importunity of the prince regent, who called at the chancellor's house, and having forced his way into the bedroom, to which eldon was confined by an attack of gout, refused to take his departure without a promise that his friend should have the vacant place. how this royal influence was applied to the chancellor, is told in the 'anecdote book.' fortunately jekyll was less incompetent for the post than his enemies had declared, and his friends admitted. he proved a respectable master, and held his post until age and sickness compelled him to resign it; and then, sustained in spirits by the usual retiring pension, he sauntered on right mirthfully into the valley of the shadow of death. on the day after his retirement, the jocose veteran, meeting eldon in the street, observed:--"yesterday, lord chancellor, i was your master; to-day i am my own." from bedford square, lord eldon, for once following the fashion, moved to hamilton place, piccadilly. with the purpose of annoying him the 'queen's friends,' during the height of the 'queen caroline agitation,' proposed to buy the house adjoining the chancellor's residence in hamilton place, and to fit it up for the habitation of that not altogether meritorious lady. such an arrangement would have been an humiliating as well as exasperating insult to a lawyer who, as long as the excitement about the poor woman lasted, would have been liable to affront whenever he left his house or looked through the windows facing hamilton place. the same mob that delighted in hallooing round whatever house the queen honored with her presence, would have varied their 'hurrahs' for the lady with groans for the lawyer who, after making her wrongs the stalking-horse of his ambition, had become one of her chief oppressors. eldon determined to leave hamilton place on the day which should see the queen enter it; and hearing that the lords of the treasury were about to assist her with money for the purchase of the house, he wrote to lord liverpool, protesting against an arrangement which would subject him to annoyance at home and to ridicule out of doors. "i should," he wrote, "be very unwilling to state anything offensively, but i cannot but express my confidence that government will not aid a project which must remove the chancellor from his house the next hour that it takes effect, and from his office at the same time." this decided attitude caused the government to withdraw their countenance from the project; whereupon a public subscription was opened for its accomplishment. sufficient funds were immediately proffered; and the owner of the mansion had verbally made terms with the patriots, when the chancellor, outbidding them, bought the house himself. "i had no other means," he wrote to his daughter, "of preventing the destruction of my present house as a place in which i could live, or which anybody else would take. the purchase-money is large, but i have already had such offers, that i shall not, i think, lose by it." russell square--where lord loughborough (who knows aught of the earl of rosslyn?) had his town house, after leaving lincoln's inn fields, and where charles abbott (lord tenterden) established himself on leaving the house in queen square, into which he married during the summer of --maintained a quasi-fashionable repute much later than the older and therefore more interesting parts of the 'old law quarter.' theodore hook's disdain for bloomsbury is not rightly appreciated by those who fail to bear in mind that the russell square of hook's time was tenanted by people who--though they were unknown to 'fashion,' in the sense given to the word by men of brummel's habit and tone--had undeniable status amongst the aristocracy and gentry of england. with some justice the witty writer has been charged with snobbish vulgarity because he ridiculed humble bloomsbury for being humble. his best defence is found in the fact that his extravagant scorn was not directed at helpless and altogether obscure persons so much as at an educated and well-born class who laughed at his caricatures, and gave dinners at which he was proud to be present. though it fails to clear the novelist of the special charge, this apology has a certain amount of truth; and in so far as it palliates some of his offences against good taste and gentle feeling, by all means let him have the full benefit of it. criticism can afford to be charitable to the clever, worthless man, now that no one admires or tries to respect him. again, it may be advanced, in hook's behalf, that political animosity--a less despicable, though not less hurtful passion than love of gentility--contributed to hook's dislike of the quarter on the north side of holborn. as a humorist he ridiculed, as a panderer to fashionable prejudices he sneered at, bloomsbury; but as a tory he cherished a genuine antagonism to the district of town that was associated in the public mind with the wealth and ascendency of the house of bedford. anyhow, the russell square neighborhood--although it was no longer fashionable, as belgravia and mayfair are fashionable at the present day--remained the locality of many important families, at the time when mr. theodore hook was pleased to assume that no one above the condition of a rich tradesman or second-rate attorney lived in it. of the lawyers whose names are mournfully associated with the square itself are sir samuel romilly and sir thomas noon talfourd. in , the year of his destruction by his own hand, sir samuel romilly lived there; and talfourd had a house on the east side of the square up to the time of his lamented death in . that theodore hook's ridicule of bloomsbury greatly lessened for a time the value of its houses there is abundant evidence. when he deluged the district with scornful satire, his voice was a social power, to which a considerable number of honest people paid servile respect. his clever words were repeated; and bloomsbury having become a popular by-word for contempt, aristocratic families ceased to live, and were reluctant to invest money, in its well-built mansions. but hook only accelerated a movement which had for years been steadily though silently making progress. erskine knew red lion square when every house was occupied by a lawyer of wealth and eminence, if not of titular rank; but before he quitted the stage, barristers had relinquished the ground in favor of opulent shopkeepers. when an ironmonger became the occupant of a house in red lion square on the removal of a distinguished counsel, erskine wrote the epigram-- "this house, where once a lawyer dwelt, is now a smith's,--alas! how rapidly the iron age succeeds the age of brass." these lines point to a minor change in the social arrangements of london, which began with the century, and was still in progress when erskine had for years been mouldering in his grave. in , the year of erskine's death, chief baron richards expired in his town house, in great ormond street. in the july of the following year baron wood--_i.e._, george wood, the famous special pleader--died at his house in bedford square, about seventeen months after his resignation of his seat in the court of exchequer to john hullock. at the present time the legal fraternity has deserted bloomsbury. the last of the judges to depart was chief baron pollock, who sold his great house in queen square at a quite recent date. with the disappearance of this venerable and universally respected judge, the legal history of the neighborhood may be said to have closed. some wealthy solicitors still live in russell square and the adjoining streets; a few old-fashioned barristers still linger in upper bedford place and lower bedford place. guilford street and doughty street, and the adjacent thoroughfares of the same class, still number a sprinkling of rising juniors, literary barristers, and fairly prosperous attorneys. perhaps the ancient aroma of the 'old law quarter'--mesopotamia, us it is now disrespectfully termed--is still strong and pleasant enough to attract a few lawyers who cherish a sentimental fondness for the past. a survey of the post office directory creates an impression that, compared with other neighborhoods, the district north and northeast of bloomsbury square still possesses more than an average number of legal residents; but it no longer remains the quarter of the lawyers. there still resides in mecklenburgh square a learned queen's counsel, for whose preservation the prayers of the neighborhood constantly ascend. to his more scholarly and polite neighbors this gentleman is an object of intellectual interest and anxious affection. as the last of an extinct species, as a still animate dodo, as a lordly mohican who has outlived his tribe, this isolated counselor of her gracious majesty is watched by heedful eyes whenever he crosses his threshold. in the morning, as he paces from his dwelling to chambers, his way down doughty street and john street, and through gray's inn gardens, is guarded by men anxious for his safety. shreds of orange-peel are whisked from the pavement on which he is about to tread; and when he crosses holborn he walks between those who would imperil their lives to rescue him from danger. the gatekeeper in doughty street daily makes him low obeisance, knowing the historic value and interest of his courtly presence. occasionally the inhabitants of mecklenburgh square whisper a fear that some sad morning their q.c. may flit away without giving them a warning. long may it be before the residents of the 'old law quarter' shall wail over the fulfillment of this dismal anticipation! [ ] dr. clench lived in brownlow street, holborn; and until his death, in , john abernethy occupied in bedford row the house which is still inhabited by an eminent surgeon, who was abernethy's favorite pupil. of dr. clench's death in january, - , narcissus luttrell gives the following account: "the th, last night, dr. clench, the physician, was strangled in a coach; two persons came to his house in brownlow street, holborn, in a coach, and pretended to carry him to a patient's in the city; they drove backward and forward, and after some time stopt by leadenhall, and sent the coachman to buy a couple of fowls for supper, who went accordingly; and in the meantime they slipt away, and the coachman when he returned found dr. clench with a handkerchief tyed about his neck, with a hard sea-coal twisted in it, and clapt against his windpipe; he had spirits applied to him and other means, but too late, he having been dead some time." dr. clench's murderer, one mr. harrison, a man of gentle condition, was apprehended, tried, found guilty, and hung in chains. [ ] holt's country seat was redgrave hall, formerly the home of the bacons. it was on his manor of redgrave, that sir nicholas bacon entertained queen elizabeth, when she remarked that her lord keeper's house was too small for him, and he answered--"your majesty has made me too great for my house." part ii. loves of the lawyers. chapter vi. a lottery. "i would compare the multitude of women which are to be chosen for wives unto a bag full of snakes, having among them a single eel; now if a man should put his hand into this bag, he may chance to light on the eel; but it is an hundred to one he shall be stung by a snake." these words were often heard from the lips of that honest judge, sir john more, whose son thomas stirred from brain to foot by the bright eyes, and snowy neck, and flowing locks of _cara elizabetha_ (the _cara elizabetha_ of a more recent tom more was 'bessie, my darling')--penned those warm and sweetly-flowing verses which delight scholars of the present generation, and of which the following lines are neither the least musical nor the least characteristic:-- "jam subit illa dies quæ ludentem obtulit olim inter virgineos te mibi prima choros. lactea cum flavi decuerunt colla capilli, cum gena par nivibus visa, labella rosis: cum tua perstringunt oculos duo sydera nostros perque oculos intrant in mea corda meos." the goddess of love played the poet more than one droll trick. having approached her with musical flattery, he fled from her with fear and abhorrence. for a time the highest and holiest of human affections was to his darkened mind no more than a carnal appetite; and he strove to conquer the emotions which he feared would rouse within him a riot of impious passions. with fasting and cruel discipline he would fain have killed the devil that agitated him, whenever he passed a pretty girl in the street. as a lay carthusian he wore a hair-shirt next his skin, disciplined his bare back with scourges, slept on the cold ground or a hard bench, and by a score other strong measures sought to preserve his spiritual by ruining his bodily health. but nature was too powerful for unwholesome doctrine and usage, and before he rashly took a celibatic vow, he knelt to fair jane colt--and rising, kissed her on the lips. when spiritual counsel had removed his conscientious objections to matrimony, he could not condescend to marry for love, but must, forsooth, choose his wife in obedience to considerations of compassion and mercy. loving her younger sister, he paid his addresses to jane, because he shrunk from the injustice of putting the junior above the older of the two girls. "sir thomas having determined, by the advice and direction of his ghostly father, to be a married man, there was at that time a pleasant conceited gentleman of an ancient family in essex, one mr. john colt, of new hall, that invited him into his house, being much delighted in his company, proffering unto him the choice of any of his daughters, who were young gentlewomen of very good carriage, good complexions, and very religiously inclined; whose honest and sweet conversation and virtuous education enticed sir thomas not a little; and although his affection most served him to the second, for that he thought her the fairest and best favored, yet when he thought within himself that it would be a grief and some blemish to the eldest to have the younger sister preferred before her, he, out of a kind of compassion, settled his fancy upon the eldest, and soon after married her with all his friends' good liking." the marriage was a fair happy union, but its duration was short. after giving birth to four children jane died, leaving the young husband, who had instructed her sedulously, to mourn her sincerely. that his sorrow was poignant may be easily believed; for her death deprived him of a docile pupil, as well as a dutiful wife. "virginem duxit admodum puellam," erasmus says of his friend, "claro genere natam, rudem adhuc utpote ruri inter parentes ac sorores semper habitam, quo magis illi liceret illam ad suos mores fingere. hanc et literis instruendam curavit, et omni musices genere doctam reddidit." here is another insight into the considerations which brought about the marriage. when he set out in search of a wife, he wished to capture a simple, unsophisticated, untaught country girl, whose ignorance of the world should incline her to rely on his superior knowledge, and the deficiencies of whose intellectual training should leave him an ample field for educational experiments. seeking this he naturally turned his steps toward the eastern countries; and in essex he found the young lady, who to the last learnt with intelligence and zeal the lessons which he set her. more's second choice of a wife was less fortunate than his first. wanting a woman to take care of his children and preside over his rather numerous establishment, he made an offer to a widow, named alice middleton. plain and homely in appearance and taste, mistress alice would have been invaluable to sir thomas as a superior domestic servant, but his good judgment and taste deserted him when he decided to make her a closer companion. bustling, keen, loquacious, tart, the good dame scolded servants and petty tradesmen with admirable effect; but even at this distance of time the sensitive ear is pained by her sharp, garrulous tongue, when its acerbity and virulence are turned against her pacific and scholarly husband. a smile follows the recollection that he endeavored to soften her manners and elevate her nature by a system of culture similar to that by which jane colt, 'admodum puella,' had been formed and raised into a polished gentlewoman. past forty years of age, mistress alice was required to educate herself anew. erasmus assures his readers that "though verging on old age, and not of a yielding temper," she was prevailed upon "to take lessons on the lute, the cithara, the viol, the monochord, and the flute, which she daily practised to him." it has been the fashion with biographers to speak bitterly of this poor woman, and to pity more for his cruel fate in being united to a termagant. no one has any compassion for her. sir thomas is the victim; mistress alice the shrill virago. in those days, when every historic reprobate finds an apologist, is there no one to say a word in behalf of the widow middleton, whose lot in life and death seems to this writer very pitiable? she was quick in temper, slow in brain, domineering, awkward. to rouse sympathy for such a woman is no easy task; but if wretchedness is a title to compassion, mistress alice has a right to charity and gentle usage. it _was not_ her fault that she could not sympathize with her grand husband, in his studies and tastes, his lofty life and voluntary death; it _was_ her misfortune that his steps traversed plains high above her own moral and intellectual level. by social theory they were intimate companions; in reality, no man and woman in all england were wider apart. from his elevation he looked down on her with commiseration that was heightened by curiosity and amazement; and she daily writhed under his gracious condescension and passionless urbanity; under her own consciousness of inferiority and consequent self-scorn. he could no more sympathize with her petty aims, than she with the high views and ambitions; and conjugal sympathy was far more necessary to her than to him. his studious friends and clever children afforded him an abundance of human fellowship; his public cares and intellectual pursuits gave him constant diversion. he stood in such small need of her, that if some benevolent fairy had suddenly endowed her with grace, wisdom, and understanding, the sum of his satisfaction would not have been perceptibly altered. but apart from him she had no sufficient enjoyments. his genuine companionship was requisite for her happiness; but for this society nature had endowed her with no fitness. in the case of an unhappy marriage, where the unhappiness is not caused by actual misconduct, but is solely due to incongruity of tastes and capacities, it is cruel to assume that the superior person of the ill-assorted couple has the stronger claim to sympathy. finding his wife less tractable than he wished, more withheld his confidence from her, taking the most important steps of his life, without either asking for her advice, or even announcing the course which he was about to take. his resignation of the seals was announced to her on the day _after_ his retirement from office, and in a manner which, notwithstanding its drollery, would greatly pain any woman of ordinary sensibility. the day following the date of his resignation was a holiday; and in accordance with his usage the ex-chancellor, together with his household, attended service in chelsea church. on her way to church, lady more returned the greetings of her friends with a stateliness not unseemly at that ceremonious time in one who was the lady of the lord high chancellor. at the conclusion of service, ere she left her pew, the intelligence was broken to her in a jest that she had lost her cherished dignity. "and whereas upon the holidays during his high chancellorship one of his gentlemen, when the service of the church was done, ordinarily used to come to my lady his wife's pew-door, and say unto her '_madam, my lord is gone_,' he came into my lady his wife's pew himself, and making a low courtesy, said unto her, 'madam, my lord is gone,' which she, imagining to be but one of his jests, as he used many unto her, he sadly affirmed unto her that it was true. this was the way he thought fittest to break the matter unto his wife, who was full of sorrow to hear it." equally humorous and pathetic was that memorable interview between more and his wife in the tower, when she, regarding his position by the lights with which nature had endowed her, counseled him to yield even at that late moment to the king. "what the goodyear, mr. more!" she cried, bustling up to the tranquil and courageous man. "i marvel that you, who have been hitherto always taken for a wise man, will now so play the fool as to lie here in this close, filthy prison, and be content to be shut up thus with mice and rats, when you might be abroad at your liberty, with the favor and good-will both of the king and his council, if you would but do as the bishops and best learned of his realm have done; and, seeing you have at chelsea a right fair house, your library, your books, your gallery, and all other necessaries so handsome about you, where you might, in company with me, your wife, your children, and household, be merry, i muse what, in god's name, you mean, here thus fondly to tarry." having heard her out--preserving his good-humor, he said to her, with a cheerful countenance, "i pray thee, good mrs. alice, tell me one thing!" "what is it?" saith she, "is not this house as near heaven as my own?" sir thomas more was looking towards heaven. mistress alice had her eye upon the 'right fair house' at chelsea. chapter vii. good queen bess. amongst the eminent men who are frequently mentioned as notorious suitors for the personal affection of queen elizabeth, a conspicuous place is awarded to hatton, by the scandalous memoirs of his time and the romantic traditions of later ages. historians of the present generation have accepted without suspicion the story that hatton was elizabeth's amorous courtier, that the fanciful letters of 'lydds' were fervent solicitations for response to his passion; that he won her favor and his successive promotions by timely exhibition of personal grace and steady perseverance in flattery. campbell speaks of the queen and her chancellor as 'lovers;' and the view of the historian has been upheld by novelists and dramatic writers. the writer of this page ventures to reject a story which is not consistent with truth, and casts a dark suspicion on her who was not more powerful as a queen than virtuous as a woman. for illustrations of lovers' pranks amongst the elizabethan lawyers, the reader must pass to two great judges, the inferior of whom was a far greater man than christopher hatton. rivals in law and politics, bacon and coke were also rivals in love. having wooed the same proud, lovely, capricious, violent woman, the one was blessed with failure, and the other was cursed with success. until a revolution in the popular estimate of bacon was effected by mr. hepworth dixon's vindication of that great man, it was generally believed that love was no appreciable element in his nature. delight in vain display occupied in his affections the place which should have been held by devotion to womanly beauty and goodness; he had sneered at love in an essay, and his cold heart never rebelled against the doctrine of his clever brain; he wooed his notorious cousin for the sake of power, and then married alice barnham for money. such was the theory, the most solid foundation of which was a humorous treatise,[ ] misread and misapplied. the lady's wealth, rank, and personal attractions were in truth the only facts countenancing the suggestion that francis bacon proffered suit to his fair cousin from interested motives. notwithstanding her defects of temper, no one denies that she was a woman qualified by nature to rouse the passion of man. a wit and beauty, she was mistress of the arts which heighten the powers of feminine tact and loveliness. the daughter of sir thomas cecil, the grandchild of lord burleigh, she was francis bacon's near relation; and though the cecils were not inclined to help him to fortune, he was nevertheless one of their connection, and consequently often found himself in familiar conversation with the bright and fascinating woman. doubtless she played with him, persuading herself that she merely treated him with cousinly cordiality, when she was designedly making him her lover. the marvel was that she did not give him her hand; that he sought it is no occasion for surprise--or for insinuations that he coveted her wealth. biography is by turns mischievously communicative and vexatiously silent. that bacon loved sir william hatton's widow, and induced essex to support his suit, and that rejecting him she gave herself to his enemy, we know; but history tells us nothing of the secret struggle which preceded the lady's resolution to become the wife of an unalluring, ungracious, peevish, middle-aged widower. she must have felt some tenderness for her cousin, whose comeliness spoke to every eye, whose wit was extolled by every lip. perhaps she, like many others, had misread the essay 'of love,' and felt herself bound in honor to bring the philosopher to his knees at her feet. it is credible that from the outset of their sentimental intercourse, she intended to win and then to flout him. but coquetry cannot conquer the first laws of human feeling. to be a good flirt, a woman must have nerve and a sympathetic nature; and doubtless the flirt in this instance paid for her triumph with the smart of a lasting wound. is it fanciful to argue that her subsequent violence and misconduct, her impatience of control and scandalous disrespect for her aged husband, may have been in some part due to the sacrifice of personal inclination which she made in accepting coke at the entreaty of prudent and selfish relations--and to the contrast, perpetually haunting her, between what she was as sir edward's termagant partner, and what she might have been as francis bacon's wife? she consented to a marriage with edward coke, but was so ashamed of her choice, that she insisted on a private celebration of their union, although archbishop whitgift had recently raised his voice against the scandal of clandestine weddings, and had actually forbidden them. in the face of the primate's edict the ill-assorted couple were united in wedlock, without license or publication of banns, by a country parson, who braved the displeasure of whitgift, in order that he might secure the favor of a secular patron. the wedding-day was november , , the bridegroom's first wife having been buried on the th of the previous july.[ ] on learning the violation of his orders, the archbishop was so incensed that he resolved to excommunicate the offenders, and actually instituted for that purpose legal proceedings, which were not dropped until bride and bridegroom humbly sued for pardon, pleading ignorance of law in excuse of their misbehavior. the scandalous consequences of that marriage are known to every reader who has laughed over the more pungent and comic scenes of english history. whilst lady hatton gave masques and balls in the superb palace which came into her possession through marriage with sir christopher hatton's nephew, coke lived in his chambers, working at cases and writing the books which are still carefully studied by every young man who wishes to make himself a master of our law. in private they had perpetual squabbles, and they quarrelled with equal virulence and indecency before the world. the matrimonial settlement of their only and ill-starred daughter was the occasion of an outbreak on the part of husband and wife, that not only furnished diversion for courtiers but agitated the council table. of all the comic scenes connected with that unseemly _fracas_, not the least laughable and characteristic was the grand festival of reconciliation at hatton house, when lady hatton received the king and queen in holborn, and expressly forbade her husband to presume to show himself among her guests. "the expectancy of sir edward's rising," says a writer of the period,[ ] "is much abated by reason of his lady's liberty,[ ] who was brought in great honor to exeter house by my lord of buckingham from sir william craven's, whither she had been remanded, presented by his lordship to the king, received gracious usage, reconciled to her daughter by his majesty, and her house in holborn enlightened by his presence at a dinner, where there was a royal feast; and to make it more absolutely her own, express commandment given by her ladyship, that neither sir edward coke nor any of his servants should be admitted." if tradition may be credited, the law is greatly indebted to the class of women whom it was our forefathers' barbarous wont to punish with the ducking-stool. had coke been happy in his second marriage, it is assumed that he would have spent more time in pleasure and fewer hours at his desk, that the suitors in his court would have had less careful decisions, and that posterity would have been favored with fewer reports. if the inference is just, society may point to the commentary on littleton, and be thankful for the lady's unhappy temper and sharp tongue. in like manner the wits of the following century maintained that holt's steady application to business was a consequence of domestic misery. the lady who ruled his house in bedford row, is said to have been such a virago, that the chief justice frequently retired to his chambers, in order that he might place himself beyond reach of her voice. amongst the good stories told of radcliffe, the tory physician, is the tradition of his boast, that he kept lady holt alive out of pure political animosity to the whig chief justice. another eminent lawyer, over whose troubles people have made merry in the same fashion, was jeffrey gilbert, baron of the exchequer. at his death, october , , this learned judge left behind him that mass of reports, histories, and treatises by which he is known as one of the most luminous, as well as voluminous of legal writers. none of his works passed through the press during his life, and when their number and value were discovered after his departure to another world, it was whispered that they had been composed in hours of banishment from a hearth where a _scolding wife_ made misery for all who came within the range of her querulous notes. disappointed in his suit to his beautiful and domineering cousin, bacon let some five or six years pass before he allowed his thoughts again to turn to love, and then he wooed and waited for nearly three years more, ere, on a bright may day, he met alice barnham in marylebone chapel, and made her his wife in the presence of a courtly company. in the july of , he wrote to cecil:--"for this divulged and almost prostituted title of knighthood, i could, without charge by your honor's mean, be content to have it, both because of this late disgrace, and because i have three new knights in my mess in gray's inn commons, and because i have found out an alderman's daughter, a handsome maiden, to my liking. so as if your honor will find the time, i will come to the court from gorhambury upon any warning." this expression, 'an alderman's daughter,' contributed greatly, if it did not give rise to, the misapprehension that bacon's marriage was a mercenary arrangement. in these later times the social status of an alderman is so much beneath the rank of a distinguished member of the bar, that a successful queen's counsel, who should make an offer to the daughter of a city magistrate, would be regarded as bent upon a decidedly unambitious match; and if in a significant tone he spoke of the lady as 'an alderman's daughter' his words might be reasonably construed as a hint that her fortune atoned for her want of rank. but it never occurred to bacon's contemporaries to put such a construction on the announcement. far from using the words in an apologetic manner, the lover meant them to express concisely that alice barnham was a lady of suitable condition to bear a title as well as to become his bride. cecil regarded them merely as an assurance that his relative meditated a suitable and even advantageous alliance, just as any statesman of the present day would read an announcement that a kinsman, making his way in the law-courts, intended to marry 'an admiral's daughter' or a 'bishop's daughter.' that it was the reverse of a mercenary marriage, mr. hepworth dixon has indisputably proved in his eighth chapter of 'the story of lord bacon's life,' where he contrasts lady bacon's modest fortune with her husband's personal acquisitions and prospects. [ ] to readers who have no sense of humor and irony, the essay 'of love' unquestionably gives countenance to the theory that francis bacon was cold and passionless in all that concerned woman. of the many strange constructions put upon this essay, not the least amusing and perverse is that which would make it a piece of adroit flattery to elizabeth, who never permitted love "to check with business," though she is represented to have used it as a diversion in idle moments. if sir thomas more's 'utopia' had been published a quarter of a century after (the date of its appearance), a similar construction would have been put on the passage, which urges that lovers should not be bound by an indissoluble tie of wedlock, until mutual inspection has satisfied each of the contracting parties that the other does not labor under any grave personal defect. if it were possible to regard the passage containing this proposal as an interpolation in the original romance, it might then be regarded as an attempt to palliate henry viii.'s conduct to anne of cleves. [ ] when due allowance has been made for the difference between the usages of the sixteenth century and the present time, decency was signally violated by this marriage, which followed so soon upon mrs. coke's death, and still sooner upon the death of lady hatton's famous grandfather, at whose funeral the lawyer made the first overtures for her hand. mrs. coke died june , , and was buried at huntingfield, co. suffolk, july , . lord burleigh expired on august , of the same year. coke's first marriage was not unhappy; and on the death of his wife by that union, he wrote in his note-book:--"most beloved and most excellent wife, she well and happily lived, and, as a true handmaid of the lord, fell asleep in the lord, and now lives and reigns in heaven." in after years he often wished most cordially that he could say _as much_ for his second wife. [ ] strafford's letters and despatches, i. . [ ] lady hatton never used her second husband's name either before or after his knighthood. a good case, touching the customary right of a married lady to bear the name, and take her title from the rank of a former husband, is that of sir dudley north, charles ii.'s notorious sheriff of london. the son of an english peer, he married lady gunning, the widow of a wealthy civic knight, and daughter of sir robert cann, "a morose old merchant of bristol"--the same magistrate whom judge jeffreys, in terms not less just than emphatic, upbraided for his connection with, or to speak moderately, his connivance at, the bristol kidnappers. it might be thought that the merchant's daughter, on her marriage with a peer's son, would be well content to relinquish the title of lady gunning; but roger north tells us that his brother dudley accepted knighthood, in order that he might avoid giving offence to the city, and also, in order that his wife might be called lady north, and not lady gunning.--_vide life of the hon. sir dudley north._ after sir thomas wilde (subsequently lord truro), married augusta emma d'este, the daughter of the duke of sussex and lady augusta murray, that lady, of whose legitimacy sir thomas had vainly endeavored to convince the house of lords, retained her maiden surname. in society she was generally known as the princess d'este, and the bilious satirists of the inns of court used to speak of sir thomas as 'the prince.' it was said that one of wilde's familiar associates, soon after the lawyer's marriage, called at his house and asked if the princess d'este was at home. "no, sir," replied the servant, "the princess d'este is not at home, but the prince is!" that this malicious story obtained a wide currency is not wonderful; that it is a truthful anecdote the writer of this book would not like to pledge his credit. the case of sir john campbell and lady strathedon, was a notable instance of a lawyer and his wife bearing different names. raised to the peerage, with the title of baroness stratheden, the first lord abinger's eldest daughter was indebted to her husband for an honor that made him her social inferior. many readers will remember a droll story of a misapprehension caused by her ladyship's title. during an official journey, sir john campbell and baroness stratheden slept at lodgings which he had frequently occupied as a circuiteer. on the morning after his arrival, the landlady obtained a special interview with campbell, and in the baroness's absence thus addressed him, with mingled indignation and respectfulness:--"sir john campbell, i am a lone widow, and live by my good name. it is not in my humble place to be too curious about the ladies brought to my lodgings by counsellors and judges. it is not in me to make remarks if a counsellor's lady changes the color of her eyes, and her complexion every assizes. but, sir john, a gentleman ought not to bring a lady to a lone widow's lodgings, unless so long as he 'okkipies' the apartments he makes all honorable professions that the lady is his wife, and as such gives her the use of his name." chapter viii. rejected addresses. no lawyer of the second charles's time surpassed francis north in love of money, or was more firmly resolved not to marry, without due and substantial consideration. his first proposal was for the daughter of a gray's inn money-lender. usury was not a less contemptible vocation in the seventeenth century than it is at the present time; and most young barristers of gentle descent and fair prospects would have preferred any lot to the degradation of marriage with the child of the most fortunate usurer in charles ii.'s london. but the hon. francis north was placed comfortably _beneath_ the prejudices of his order and time of life. he was of noble birth, but quite ready to marry into a plebeian family; he was young, but loved money more than aught else. so his hearing was quickened and his blood beat merrily when, one fine morning, "there came to him a recommendation of a lady, who was an only daughter of an old usurer in gray's inn, supposed to be a good fortune in present, for her father was rich; but, after his death, to become worth, nobody could tell what." one would like to know how that 'recommendation of a lady' reached the lawyer's chambers; above all, who sent it? "his lordship," continues roger north, "got a sight of the lady, and did not dislike her; thereupon he made the old man a visit, and a proposal of himself to marry his daughter." by all means let this ingenuous, high-spirited templar have a fair judgment. he would not have sold himself to just any woman. he required a _maximum_ of wealth with a _minimum_ of personal repulsiveness. he therefore 'took a sight of the lady' (it does not appear that he talked with her) before he committed himself irrevocably by a proposal. the _sight_ having been taken, as he did not dislike her (mind, he did not positively like her) he made the old man a visit. loving money, and believing in it, this 'old man' wished to secure as much of it as possible for his only child; and therefore looking keenly at the youthful admirer of a usurer's heiress, "asked him what estate his father intended to settle upon him for present maintenance, jointure, and provision for children." mildly and not unjustly roger calls this "an inauspicious question." it was so inauspicious that mr. francis north abruptly terminated the discussion by wishing the usurer good-morning. so ended love affair no. . having lost his dear companion, mr. edward palmer, son of the powerful sir geoffry palmer, mr. francis north soon regarded his friend's wife with tender longing. it was only natural that he should desire to mitigate his sorrow for the dead by possession of the woman who was "left a flourishing widow, and very rich." but the lady knew her worth, as well she might, for "never was lady more closely besieged with wooers: she had no less than five younger sons sat down before her at one time, and she kept them well in hand, as they say, giving no definite answers to any of one of them." small respect did mistress edward palmer show her late husband's most intimate friend. for weeks she tortured the wretched, knavish fellow with coquettish tricks, and having rendered him miserable in many ways, made him ludicrous by jilting him. "he was held at the long saw above a month, doing his duty as well as he might, and that was but clumsily; for he neither dressed nor danced, when his rivals were adroit at both, and the lady used to shuffle her favors amongst them affectedly, and on purpose to mortify his lordship, and at the same time be as civil to him, with like purpose to mortify them." poor mr. francis! well may his brother write indignantly, "it was very grievous to him--that had his thoughts upon his clients' concerns, which came in thick upon him--to be held in a course of bo-peep play with a crafty widow." at length, "after a clancular proceeding," this crafty widow, by marrying "a jolly knight of a good estate," set her victims free; and mr. francis was at liberty to look elsewhere for a lapful of money. roger north tells the story of the third affair so concisely and pithily that his exact words must be put before the reader:--"another proposition came to his lordship," writes the fraternal biographer, giving francis north credit for the title he subsequently won, although at the time under consideration he was plain _mister_ north, on the keen look-out for the place of solicitor general, "by a city broker, from sir john lawrence, who had many daughters, and those reputed beauties; and the fortune was to be £ . his lordship went and dined with the alderman, and liked the lady, who (as the way is) was dressed out for a muster. and coming to treat, the portion shrank to £ , and upon that his lordship parted, and was not gone far before mr. broker (following) came to him, and said sir john would give £ more at the birth of the first child; but that would not do, for his lordship hated such screwing. not long after this dispute, his lordship was made the king's solicitor general, and then the broker came again, with news that sir john would give £ , . 'no,' his lordship said, 'after such usage he would not proceed if he might have £ , .'" the intervention of the broker in this negotiation is delightfully suggestive. more should have been said about him--his name, address, and terms for doing business. was he paid for his services on all that he could save from a certain sum beyond which his employer would not advance a single gold-piece for the disposal of his child? were there, in olden time, men who avowed themselves 'heart and jointure brokers, agents for lovers of both sexes, contractors of mutual attachments, wholesale and retail dealers in reciprocal affection, and general referees, respondents, and insurers in all sentimental affairs, clandestine or otherwise?' after these mischances francis north made an eligible match under somewhat singular circumstances. as co-heiresses of thomas, earl of down, three sisters, the ladies pope, claimed under certain settlements large estates of inheritance, to which lady elizabeth lee set up a counter claim. north, acting as lady elizabeth lee's counsel, effected a compromise which secured half the property in dispute to his client, and diminished by one-half the fortunes to which each of the three suitors on the other side had maintained their right. having thus reduced the estate of lady frances pope to a fortune estimated at about £ , , the lawyer proposed for her hand, and was accepted. after his marriage, alluding to his exertions in behalf of lady elizabeth lee's very disputable claim, he used to say that "he had been counsel against himself;" but roger north frankly admits that "if this question had not come to such a composition, which diminished the ladies' fortunes, his brother had never compassed his match." it was not without reluctance that the countess of downs consented to the union of her daughter with the lawyer who had half ruined her, and who (though he was solicitor general and in fine practice) could settle only £ upon the lady. "i well remember," observes roger, "the good countess had some qualms, and complained that she knew not how she could justify what she had done (meaning the marrying her daughters with no better settlement)." to these qualms francis north, with lawyer-like coolness, answered--"madam, if you meet with any question about that, _say_ that your daughter has £ per annum jointure." the marriage was celebrated in wroxton church; and after bountiful rejoicings with certain loyalist families of oxfordshire, the happy couple went up to london and lived in chambers until they moved into a house in chancery lane. it may surprise some readers of this book to learn that george jeffreys, the odious judge of the bloody circuit, was a successful gallant. tall, well-shaped, and endowed by nature with a pleasant countenance and agreeable features, jeffreys was one of the most fascinating men of his time. a wit and a _bon-vivant_, he could hit the humor of the roystering cavaliers who surrounded the 'merry monarch;' a man of gallantry and polite accomplishments, he was acceptable to women of society. the same tongue that bullied from the bench, when witnesses were perverse or counsel unruly, could flatter with such melodious affectation of sincerity, that he was known as a most delightful companion. as a musical connoisseur he spoke with authority; as a teller of good stories he had no equal in town. even those who detested him did not venture to deny that in the discharge of his judicial offices he could at his pleasure assume a dignity and urbane composure that well became the seat of justice. in short, his talents and graces were so various and effective, that he would have risen to the bench, even if he had labored under the disadvantages of pure morality and amiable temper. women declared him irresistible. at court he had the ear of nell gwyn and the duchess of portsmouth--the protestant favorite and the catholic mistress; and before he attained the privilege of entering whitehall--at a time when his creditors were urgent, and his best clients were the inferior attorneys of the city courts--he was loved by virtuous girls. he was still poor, unknown, and struggling with difficulties, when he induced an heiress to accept his suit,--the daughter of a rural squire whose wine the barrister had drunk upon circuit. this young lady was wooed under circumstances of peculiar difficulty; and she promised to elope with him if her father refused to receive him as a son-in-law. ill-luck befell the scheme; and whilst young jeffreys was waiting in the temple for the letter which should decide his movements, an intimation reached him that elopement was impossible and union forbidden. the bearer of this bad news was a young lady--the child of a poor clergyman--who had been the confidential friend and paid companion of the squire's daughter. the case was hard for jeffreys, cruel for the fair messenger. he had lost an advantageous match, she had lost her daily bread. furious with her for having acted as the _confidante_ of the clandestine lovers, the squire had turned this poor girl out of his house; and she had come to london to seek for employment as well as to report the disaster. jeffreys saw her overpowered with trouble and shame--penniless in the great city, and disgraced by expulsion from her patron's roof. seeing that her abject plight was the consequence of amiable readiness to serve him, jeffreys pitied and consoled her. most young men would have soothed their consciences and dried the running tears with a gift of money or a letter recommending the outcast to a new employer. as she was pretty, a libertine would have tried to seduce her. in jeffreys, compassion roused a still finer sentiment: he loved the poor girl and married her. on may , , sarah neesham was married to george jeffreys of the inner temple; and her father, in proof of his complete forgiveness of her _escapade_, gave her a fortune of £ --a sum which the poor clergyman could not well afford to bestow on the newly married couple. having outlived sarah neesham, jeffreys married again--taking for his second wife a widow whose father was sir thomas bludworth, ex-lord mayor of london. whether rumor treated her unjustly it is impossible to say at this distance of time; but if reliance may be put on many broad stories current about the lady, her conduct was by no means free from fault. she was reputed to entertain many lovers. jeffreys would have created less scandal if, instead of taking her to his home, he had imitated the pious sir matthew hale, who married his maid-servant, and on being twitted by the world with the lowliness of his choice, silenced his censors with a jest. amongst the love affairs of seventeenth-century lawyers place must be made for mention of the second wife whom chief justice bramston brought home from ireland, where she had outlived two husbands (the bishop of clogher and sir john brereton), before she gave her hand to the judge who had loved her in his boyhood. "when i see her," says the chief justice's son, who describes the expedition to dublin, and the return to london, "i confess i wondered at my father's love. she was low, fatt, red-faced; her dress, too, was a hat and ruff, which tho' she never changed to death. but my father, i believe, seeing me change countenance, told me it was not beautie, but virtue, he courted. i believe she had been handsome in her youth; she had a delicate, fine hand, white and plump, and indeed proved a good wife and mother-in-law, too." on her journey to charles i.'s london, this elderly bride, in her antiquated attire, rode from holyhead to beaumaris on a pillion behind her step-son. "as she rode over the sandes," records her step-son, "behind mee, and pulling off her gloves, her wedding ringe fell off, and sunk instantly. she caused her man to alight; she sate still behind me, and kept her eye on the place, and directed her man, but he not guessing well, she leaped off, saying she would not stir without her ringe, it being the most unfortunate thinge that could befall any one to lose the wedding-ringe--made the man thrust his hand into the sands (the nature of which is not to bear any weight but passing), he pulled up sand, but not the ringe. she made him strip his arme and put it deeper into the sand, and pulled up the ringe; and this done, he and shee, and all that stood still, were sunk almost to the knees, but we were all pleased that the ringe was found." in the legal circle of charles the second's london, lady king was notable as a virago whose shrill tongue disturbed her husband's peace of mind by day, and broke his rest at night. earning a larger income than any other barrister of his time, he had little leisure for domestic society; but the few hours which he could have spent with his wife and children, he usually preferred to spend in a tavern, beyond the reach of his lady's sharp querulousness. "all his misfortune," says roger north, "lay at home, in perverse consort, who always, after his day-labor done, entertained him with all the chagrin and peevishness imaginable; so that he went home as to his prison, or worse; and when the time came, rather than go home, he chose commonly to get a friend to go and sit in a free chat at the tavern, over a single bottle, till twelve or one at night, and then to work again at five in the morning. his fatigue in business, which, as i said, was more than ordinary to him, and his no comfort, or rather, discomfort at home, and taking his refreshment by excising his sleep, soon pulled him down; so that, after a short illness, he died." on his death-bed, however, he forgave the weeping woman, who, more through physical irritability than wicked design, had caused him so much undeserved discomfort; and by his last will and testament he made liberal provision for her wants. having made his will, "he said, i am glad it is done," runs the memoir of sir john king, written by his father, "and after took leave of his wife, who was full of tears; seeing it is the will of god, let us part quietly in friendship, with submissiveness to his will, as we came together in friendship by his will." chapter ix. "cicero" upon his trial. a complete history of the loves of lawyers would notice many scandalous intrigues and disreputable alliances, and would comprise a good deal of literature for which the student would vainly look in the works of our best authors. from the days of wolsey, whose amours were notorious, and whose illegitimate son became dean of wells, down to the present time of brighter though not unimpeachable morality, the domestic lives of our eminent judges and advocates have too frequently invited satire and justified regret. in the eighteenth century judges, without any loss of _caste_ or popular regard, openly maintained establishments that in these more decorous and actually better days would cover their keepers with obloquy. attention could be directed to more than one legal family in which the descent must be traced through a succession of illegitimate births. not only did eminent lawyers live openly with women who were not their wives, and with children whom the law declined to recognize as their offspring; but these women and children moved in good society, apparently indifferent to shame that brought upon them but few inconveniences. in great ormond street, where a mistress and several illegitimate children formed his family circle, lord thurlow was visited by bishops and deans; and it is said that in , when sir james mansfield, chief justice of the common pleas, was invited to the woolsack and the peerage, he was induced to decline the offer more by consideration for his illegitimate children than by fears for the stability of the new administration. speaking of lord thurlow's undisguised intercourse with mrs. hervey, lord campbell says, "when i first knew the profession, it would not have been endured that any one in a judicial situation should have had such a domestic establishment as thurlow's; but a majority of judges had married their mistresses. the understanding then was that a man elevated to the bench, if he had a mistress, must either marry her or put her away. for many years there has been no necessity for such an alternative." either lord campbell had not the keen appetite for professional gossip, with which he is ordinarily credited, or his conscience must have pricked him when he wrote, "for many years there has been no necessity for such an alternative." to show how far his lordship erred through want of information or defect of candor is not the duty of this page; but without making any statement that can wound private feeling, the present writer may observe that 'the understanding,' to which lord campbell draws attention, has affected the fortune of ladies within the present generation. that the bright and high-minded somers was the debauchee that mrs. manley and mr. cooksey would have us believe him is incredible. it is doubtful if mackey in his 'sketch of leading characters at the english court' had sufficient reasons for clouding his sunny picture of the statesman with the assertion that he was "something of a libertine." but there are occasions when prudence counsels us to pay attention to slander. having raised himself to the office of solicitor general, somers, like francis bacon, found an alderman's daughter to his liking; and having formed a sincere attachment for her, he made his wishes known to her father. miss anne bawdon's father was a wealthy merchant, styled sir john bawdon--a man proud of his civic station and riches, and thinking lightly of lawyers and law. when somers stated his property and projects, the rental of his small landed estate and the buoyancy of his professional income, the opulent knight by no means approved the prospect offered to his child. the lawyer might die in the course of twelve months; in which case the worcestershire estate would be still a small estate, and the professional income would cease. in twelve mouths mr. solicitor might be proved a scoundrel, for at heart all lawyers were arrant rogues; in which case matters would be still worse. having regarded the question from these two points of view, sir john bawdon gave somers his dismissal and married miss anne to a rich turkey merchant. three years later, when somers had risen to the woolsack, and it was clear that the rich turkey merchant would never be anything grander than a rich turkey merchant, sir john saw that he had made a serious blunder, for which his child certainly could not thank him. a goodly list might be made of cases where papas have erred and repented in sir john bawdon's fashion. sir john lawrence would have made his daughter a lord keeper's lady and a peeress, if he and his broker had dealt more liberally with francis north. had it not been for sir joseph jekyll's counsel, mr. cocks, the worcestershire squire, would have rejected philip yorke as an ineligible suitor, in which case _plain_ mrs. lygon would never have been lady hardwicke, and worked her husband's twenty purses of state upon curtains and hangings of crimson velvet. and, if he were so inclined, this writer could point to a learned judge, who in his days of 'stuff' and 'guinea fees' was deemed an ineligible match for a country apothecary's pretty daughter. the country doctor being able to give his daughter £ , , turned away disdainfully from the unknown 'junior,' who five years later was leading his circuit, and quickly rose to the high office which he still fills to the satisfaction of his country. disappointed in his pursuit of anne bawdon, somers never again made any woman an offer of marriage; but scandalous gossip accused him of immoral intercourse with his housekeeper. this woman's name was blount; and while she resided with the chancellor, fame whispered that her husband was still living. not only was somers charged with open adultery, but it was averred that for the sake of peace he had imprisoned in a madhouse his mistress's lawful husband, who was originally a worcester tradesman. the chief authority for this startling imputation is mrs. manley, who was encouraged, if not actually paid, by swift to lampoon his political adversaries. in her 'new atalantis'--the 'cicero' of which scandalous work was understood by its readers to signify 'lord somers,'--this shameless woman entertained quid-nuncs and women of fashion by putting this abominable story in written words, the coarseness of which accorded with the repulsiveness of the accusation. at a time when honest writers on current politics were punished with fine and imprisonment, the pillory and the whip, statesmen and ecclesiastics were not ashamed to keep such libellers as mrs. manley in their pay. that the reader may fully appreciate the change which time has wrought in the tone of political literature, let him contrast the virulence and malignity of this unpleasant passage from the new atalantis, with the tone which recently characterized the public discussion of the case which is generally known by the name of 'the edmunds scandal.' notwithstanding her notorious disregard of truth, it is scarcely credible that mrs. manley's scurrilous charge was in no way countenanced by facts. at the close of the seventeenth century to keep a mistress was scarcely regarded as an offence against good morals; and living in accordance with the fashion of the time, it is probable that somers did that which lord thurlow, after an interval of a century, was able to do without rousing public disapproval. had his private life been spotless, he would doubtless have taken legal steps to silence his traducer; and unsustained by a knowledge that he dared not court inquiry into his domestic arrangements, mrs. manley would have used her pen with greater caution. but all persons competent to form an opinion on the case have agreed that the more revolting charges of the indictment were the baseless fictions of a malicious and unclean mind. chapter x. brothers in trouble. in the 'philosophical dictionary,' voltaire, laboring under misapprehension or carried away by perverse humor, made the following strange announcement:--"il est public en angleterre, et on voudroit le nier en vain, que le chancelier cowper épousa deux femmes, qui vécurent ensemble dans sa maison avec une concorde singulière qui fit honneur à tous trois. plusieurs curieux ont encore le petit livre que ce chancelier composa en faveur de la polygamie." tickled by the extravagant credulity or grotesque malice of this declaration, an english wit, improving upon the published words, represented the frenchman as maintaining that the custodian of the great seal of england was called the _lord keeper_, because, by english law, he was permitted to keep as many wives as he pleased. the reader's amusement will not be diminished by a brief statement of the facts to which we are indebted for voltaire's assertions. william cowper, the first earl of his line, began life with a reputation for dissipated tastes and habits, and by unpleasant experience he learned how difficult it is to get rid of a bad name. the son of a hertfordshire baronet, he was still a law student when he formed a reprehensible connexion with an unmarried lady of that county--miss (or, as she was called by the fashion of the day mistress) elizabeth culling, of hertingfordbury park. but little is known of this woman. her age is an affair of uncertainty, and all the minor circumstances of her intrigue with young william cowper are open to doubt and conjecture; but the few known facts justify the inference that she neither merited nor found much pity in her disgrace, and that william erred through boyish indiscretion rather than from vicious propensity. she bore him two children, and he neither married her nor was required by public opinion to marry her. the respectability of their connexions gave the affair a peculiar interest, and afforded countenance to many groundless reports. by her friends it was intimated that the boy had not triumphed over the lady's virtue until he had made her a promise of marriage; and some persons even went so far as to assert that they were privately married. it is not unlikely that at one time the boy intended to make her his wife as soon as he should be independent of his father, and free to please himself. beyond question, however, is it that they were never united in wedlock, and that will cowper joined the home circuit with the tenacious fame of a scapegrace and _roué_. that he was for any long period a man of dissolute morals is improbable; for he was only twenty-four years of age when he was called to the bar, and before his call he had married (after a year's wooing) a virtuous and exemplary young lady, with whom he lived happily for more than twenty years. a merchant's child, whose face was her fortune--judith, the daughter of sir robert booth, is extolled by biographers for reclaiming her young husband from a life of levity and culpable pleasure. that he loved her sincerely from the date of their imprudent marriage till the date of her death, which occurred just about six months before his elevation to the woolsack, there is abundant evidence. judith died april , , and in the september of the following year the lord keeper married mary clavering, the beautiful and virtuous lady of the bedchamber to caroline wilhelmina dorothea, princess of wales. this lady was the countess cowper whose diary was published by mr. murray in the spring of ; and in every relation of life she was as good and noble a creature as her predecessor in william cowper's affection. of the loving terms on which she lived with her lord, conclusive testimony is found in their published letters and her diary. frequently separated by his professional avocations and her duties of attendance upon the princess of wales, they maintained, during the periods of personal severance, a close and tender intercourse by written words; and at all other times, in sickness not less than in health, they were a fondly united couple. one pathetic entry in the countess's diary speaks eloquently of their nuptial tenderness and devotion:--"april th, . after dinner we went to sir godfrey kneller's to see a picture of my lord, which he is drawing, and is the best that was ever done for him; it is for my drawing-room, and in the same posture that he watched me so many weeks in my great illness." lord cowper's second marriage was solemnized with a secrecy for which his biographers are unable to account. the event took place september, , about two months before his father's death, but it was not announced till the end of february, , at which time luttrell entered in his diary, "the lord keeper, who not long since was privately married to mrs. clavering of the bishoprick of durham, brought her home this day." mr. foss, in his 'judges of england,' suggests that the concealment of the union "may not improbably be explained by the lord keeper's desire not to disturb the last days of his father, who might perhaps have been disappointed that the selection had not fallen on some other lady to whom he had wished his son to be united." but this conjecture, notwithstanding its probability, is only a conjecture. unless they had grave reasons for their conduct, the lord keeper and his lady had better have joined hands in the presence of the world, for the mystery of their private wedding nettled public curiosity, and gave new life to an old slander. cowper's boyish _escapade_ was not forgotten by the malicious. no sooner had he become conspicuous in his profession and in politics, than the story of his intercourse with miss culling was told in coffee-rooms with all the exaggerations that prurient fancy could devise or enmity dictate. the old tale of a secret marriage--or, still worse, of a mock marriage--was caught from the lips of some hertford scandal-monger, and conveyed to the taverns and drawing-rooms of london. in taking sir robert booth's daughter to church, he was said to have committed bigamy. even while he was in the house of commons he was known by the name of 'will bigamy;' and that _sobriquet_ clung to him ever afterwards. twenty years of wholesome domestic intercourse with his first wife did not free him from the abominable imputation, and his marriage with miss clavering revived the calumny in a new form. fools were found to believe that he had married her during judith booth's life and that their union had been concealed for several years instead of a few months. the affair with miss culling was for a time forgotten, and the charge preferred against the keeper of the queen's conscience was bigamy of a much more recent date. in various forms this ridiculous accusation enlivens the squibs of the pamphleteers of queen anne's reign. in the 'new atalantis' mrs. manley certified that the fair victim was first persuaded by his lordship's sophistries to regard polygamy as accordant with moral law. having thus poisoned her understanding, he gratified her with a form of marriage, in which his brother spencer, in clerical disguise, acted the part of a priest. it was even suggested that the bride in this mock marriage was the lawyer's ward. never squeamish about the truth, when he could gain a point by falsehood, swift endorsed the spiteful fabrication, and in the _examiner_, pointing at lord cowper, wrote--"this gentleman, knowing that marriage fees were a considerable perquisite to the clergy, found out a way of improving them cent. per cent. for the benefit of the church. his invention was to marry a second wife while the first was alive; convincing her of the lawfulness by such arguments as he did not doubt would make others follow the same example. _these he had drawn up in writing with intention to publish for the general good, and it is hoped he may now have leisure to finish them._" it is possible that the words in italics were the cause of voltaire's astounding statement: "plusieurs curieux ont encore le petit livre que ce chancelier composa en faveur de la polygamie." on this point lord campbell, confidently advancing an opinion which can scarcely command unanimous assent, says, "the fable of the '_treatise_' is evidently taken from the panegyric on 'a plurality of wives,' which mrs. manley puts into the mouth of lord cowper, in a speech supposed to be addressed by hernando to lousia." but whether voltaire accepted the 'new atalantis,' or the _examiner_, as an authority for the statements of his very laughable passage, it is scarcely credible that he believed himself to be penning the truth. the most reasonable explanation of the matter appears to be, that tickled by swift's venomous lines, the sarcastic frenchman in malice and gaiety adopted them, and added to their piquancy by the assurance that the chancellor's book was not only published, but was preserved by connoisseurs as a literary curiosity. like his elder brother, the chancellor, spencer cowper married at an early age, lived to wed a second wife, and was accused of immorality that was foreign to his nature. the offence with which the younger cowper was charged, created so wide and profound a sensation, and gave rise to such a memorable trial, that the reader will like to glance at the facts of the case. born in , spencer cowper was scarcely of age when he was called to the bar, and made comptroller of the bridge house estate. the office, which was in the gift of the corporation of london, provided him with a good income, together with a residence in the bridge house, st. olave's, southwark, and brought him in contact with men who were able to bring him briefs or recommend him to attorneys. for several years the boy-barrister was thought a singularly lucky fellow. his hospitable house was brightened by a young and lovely wife (pennington, the daughter of john goodeve), and he was so much respected in his locality that he was made a justice of the peace. in his profession he was equally fortunate: his voice was often heard at westminster and on the home circuit, the same circuit where his brother william practised and his family interest lay. he found many clients. envy is the shadow of success; and the cowpers were watched by men who longed to ruin them. from the day when they armed and rode forth to welcome the prince of orange, the lads had been notably fortunate. notwithstanding his reputation for immorality william cowper had sprung into lucrative practice, and in was returned to parliament as representative for hartford, the other seat for the borough being filled by his father, sir william cowper. in spite of their comeliness and complaisant manners, the lightness of their wit and the _prestige_ of their success, hertford heard murmurs that the young cowpers were _too_ lucky by half, and that the cowper interest was dangerously powerful in the borough. it was averred that the cowpers were making unfair capital out of liberal professions: and when the hertford whigs sent the father and son to the house of commons, the vanquished party cursed in a breath the dutch usurper and his obsequious followers. it was resolved to damage the cowpers:--by fair means or foul, to render them odious in their native town. ere long the malcontents found a good cry. scarcely less odious to the hertford tories than the cowpers themselves was an influential quaker of the town, named stout, who actively supported the cowper interest. a man of wealth and good repute, this follower of george fox exerted himself enthusiastically in the election contest of : and in acknowledgment of his services the cowpers honored him with their personal friendship. sir william cowper asked him to dine at hertford castle--the baronet's country residence; sir william's sons made calls on his wife and daughter. of course these attentions from cowpers to 'the shaker' were offensive to the tory magnates of the place: and they vented their indignation in whispers, that the young men never entered stout's house without kissing his pretty daughter. while these rumors were still young, mr. stout died leaving considerable property to his widow, and to his only child--the beauteous sarah; and after his death the intercourse between the two families became yet more close and cordial. the lawyers advised the two ladies about the management of their property: and the baronet gave them invitations to his london house in hatton garden, as well as to hertford castle. the friendship had disastrous consequences. both the brothers were very fascinating men--men, moreover, who not only excelled in the art of pleasing, but who also habitually exercised it. from custom, inclination, policy, they were very kind to the mother and daughter; probably paying the latter many compliments which they would never have uttered had they been single men. coming from an unmarried man the speech is often significant of love, which on the lips of a husband is but the language of courtesy. but, unfortunately, miss ('mistress' is her style in the report of a famous trial) sarah stout fell madly in love with spencer cowper notwithstanding the impossibility of marriage. not only did she conceive a dangerous fondness for him, but she openly expressed it--by speech and letters. she visited him in the temple, and persecuted him with her embarrassing devotion whenever he came to hertford. it was a trying position for a young man not thirty years of age, with a wife to whom he was devotedly attached, and a family whose political influence in his native town might be hurt by publication of the girl's folly. taking his elder brother into his confidence, he asked what course he ought to pursue. to withdraw totally and abruptly from the two ladies, would be cruel to the daughter, insulting to the mother; moreover, it would give rise to unpleasant suspicions and prejudicial gossip in the borough. it was decided that spencer must repress the girl's advances--must see her loss frequently--and, by a reserved and frigid manner, must compel her to assume an appearance of womanly discretion. but the plan failed. at the opening of the year she invited him to take up his quarters in her mother's house, when he came to hertford at the next spring assizes. this invitation he declined, saying that he had arranged to take his brother's customary lodgings in the house of mr. barefoot, in the market place, but with manly consideration he promised to call upon her. "i am glad," sarah wrote to him on march , , "you have not quite forgot there is such a person as i in being: but i am willing to shut my eyes and not see anything that looks like unkindness in you, and rather content myself with what excuses you are pleased to make, than be inquisitive into what i must not know: i am sure the winter has been too unpleasant for me to desire the continuance of it: and i wish you were to endure the sharpness of it but for one short hour, as i have done for many long nights and days, and then i believe it would move that rocky heart of yours that can be so thoughtless of me as you are." on monday, march , following the date of the words just quoted, spencer cowper rode into hertford, alighted at mrs. stout's house, and dined with the ladies. having left the house after dinner, in order that he might attend to some business, he returned in the evening and supped with the two women. supper over, mrs. stout retired for the night, leaving her daughter and the young barrister together. no sooner had the mother left the room, than a distressing scene ensued. unable to control or soothe her, spencer gently divided the clasp of her hands, and having freed himself from her embrace, hastened from the room and abruptly left the house. he slept at his lodgings; and the next morning he was horror-struck on hearing that sarah stout's body had been found drowned in the mill-stream behind her old home. that catastrophe had actually occurred. scarcely had the young barrister reached the market place, when the miserable girl threw herself into the stream from which her lifeless body was picked on the following morning. at the coroner's inquest which ensued, spencer cowper gave his evidence with extreme caution, withholding every fact that could be injurious to sarah's reputation; and the jury returned a verdict that the deceased gentlewoman had killed herself whilst in a state of insanity. in deep dejection spencer cowper continued the journey of the circuit. but the excitement of the public was not allayed by the inquest and subsequent funeral. it was rumored that it was no case of self-murder, but a case of murder by the barrister, who had strangled his dishonored victim, and had then thrown her into the river. anxious to save their sect from the stigma of suicide the quakers concurred with the tories in charging the young man with a hideous complication of crimes. the case against spencer was laid before chief justice holt, who at first dismissed the accusation as absurd, but was afterwards induced to commit the suspected man for trial; and in the july of the charge actually came before a jury at the hertford assizes. four prisoners--spencer cowper, two attorneys, and a law-writer--were placed in the dock on the charge of murdering sarah stout. on the present occasion there is no need to recapitulate the ridiculous evidence and absurd misconduct of the prosecution in this trial; though criminal lawyers who wish to know what unfairness and irregularities were permitted in such inquiries in the seventeenth century cannot do better than to peruse the full report of the proceedings, which may be found in every comprehensive legal library. in this place it is enough to say that though the accusation was not sustained by a shadow of legal testimony, the prejudice against the prisoners, both on the part of a certain section of the hertford residents and the presiding judge, mr. baron hatsel, was such that the verdict for acquittal was a disappointment to many who heard it proclaimed by the foreman of the jury. narcissus luttrell, indeed, says that the verdict was "to the satisfaction of the auditors;" but in this statement the diarist was unquestionably wrong, so far as the promoters of the prosecution were concerned. instead of accepting the decision without demur, they attempted to put the prisoners again on their trial by the obsolete process of "appeal of murder;" but this endeavor proving abortive, the case was disposed of, and the prisoners' minds set at rest. the barrister who was thus tried on a capital charge, and narrowly escaped a sentence that would have consigned him to an ignominious death, resumed his practice in the law courts, sat in the house of commons and rose to be a judge in the court of common pleas. it is said that he "presided on many trials for murder; ever cautious and mercifully inclined--remembering the great peril which he himself had undergone." the same writer who aspersed somers with her unchaste thoughts, and reiterated the charge of bigamy against lord chancellor cowper, did not omit to give a false and malicious version to the incidents which had acutely wounded the fine sensibilities of the younger cowper. but enough notice has been taken of the 'new atalantis' in this chapter. to that repulsive book we refer those readers who may wish to peruse mrs. manley's account of sarah stout's death. a distorted tradition of sarah stout's tragic end, and of lord cowper's imputed bigamy, was contributed to an early number of the 'european' by a clerical authority--the rev. j. hinton, rector of alderton, in northamptonshire. "mrs. sarah stout," says the writer, "whose death was charged upon spencer cowper, was strangled accidentally by drawing the steenkirk too tight upon her neck, as she, with four or five young persons, were at a game of romp upon the staircase; but it was not done by mr. cowper, though one of the company. mrs. clavering, lord chancellor cowper's second wife, whom he married during the life of his first, was there too; they were so confounded with the accident, that they foolishly resolved to throw her into the water, thinking it would pass that she had drowned herself." this charming paragraph illustrates the vitality of scandal, and at the same time shows how ludicrously rumor and tradition mistell stories in the face of evidence. spencer cowper's second son, the rev. john cowper, d.d., was the father of william cowper, the poet. chapter xi. early marriages. notwithstanding his illustrious descent, simon harcourt raised himself to the woolsack by his own exertions, and was in no degree indebted to powerful relatives for his elevation. the son of a knight, whose loyalty to the house of stuart had impoverished his estate, he spent his student-days at pembroke, oxford, and the inner temple, in resolute labor, and with few indulgences. his father could make him but a slender allowance; and when he assumed the gown of a barrister, the future chancellor, like erskine in after years, was spurred to industry by the voices of his wife and children. whilst he was still an undergraduate of the university, he fell in love with rebecca clark, daughter of a pious man, of whose vocation the modern peerages are ashamed. sir philip harcourt (the chancellor's father) in spite of his loyalty quarrelled with the established church, and joined the presbyterians: and thomas clark was his presbyterian chaplain, secretary, and confidential servant. great was sir philip's wrath on learning that his boy had not only fallen in love with rebecca clark, but had married her privately. it is probable that the event lowered the worthy knight's esteem for the presbyterian system; but as anger could not cut the nuptial bond, the father relented--gave the young people all the assistance he could, and hoped that they would live long without repenting their folly. the match turned out far better than the old knight feared. taking his humble bride to modest chambers, young harcourt applied sedulously to the study of the law; and his industry was rewarded by success, and by the gratitude of a dutiful wife. in unbroken happiness they lived together for a succession of years, and their union was fruitful of children. harcourt fared better with his love-match than sergeant hill with his heiress, miss medlycott of cottingham, northamptonshire. on the morning of his wedding the eccentric sergeant, having altogether forgotten his most important engagement for the day, received his clients in chambers after his usual practice, and remained busy with professional cares until a band of devoted friends forcibly carried him to the church, where his bride had been waiting for him more than an hour. the ceremony having been duly performed, he hastened back to his chambers, to be present at a consultation. notwithstanding her sincere affection for him, the lady proved but an indifferent wife to the black-letter lawyer. empowered by act of parliament to retain her maiden-name after marriage, she showed her disesteem for her husband's patronymic by her mode of exercising the privilege secured to her by special law; and many a time the sergeant indignantly insisted that she should use his name in her signatures. "my name is hill, madam; my father's name was hill, madam; all the hills have been named hill, madam; hill is a good name--and by ----, madam, you _shall_ use it." on other matters he was more compliant--humoring her old-maidish fancies in a most docile and conciliating manner. curiously neat and orderly, mrs. medlycott took great pride in the faultlessness of her domestic arrangements, so far as cleanliness and precise order were concerned. to maintain the whiteness of the pipe-clayed steps before the front door of her bedford square mansion was a chief object of her existence; and to gratify her in this particular, sergeant hill use daily to leave his premises by the kitchen steps. having outlived the lady, hill observed to a friend who was condoling with him on his recent bereavement, "ay, my poor wife is gone! she was a good sort of woman--in _her_ way a _very_ good sort of woman. i do honestly declare my belief that in _her_ way she had no equal. but--but--i'll tell you something in confidence. if ever i marry again, _i won't marry merely for money_." the learned sergeant died in his ninety-third year without having made a second marriage. like harcourt, john scott married under circumstances that called forth many warm expressions of censure; and like harcourt, he, in after life, reflected on his imprudent marriage as one of the most fortunate steps of his earlier career. the romance of the law contains few more pleasant episodes than the story of handsome jack scott's elopement with bessie surtees. there is no need to tell in detail how the comely oxford scholar danced with the banker's daughter at the newcastle assemblies; how his suit was at first recognised by the girl's parents, although the scotts were but rich 'fitters,' whereas aubone surtees, esquire, was a banker and gentleman of honorable descent; how, on the appearance of an aged and patrician suitor for bessie's hand, papa and mamma told jack scott not to presume on their condescension, and counseled bessie to throw her lover over and become the lady of sir william blackett; how bessie was faithful, and jack was urgent; how they had secret interviews on tyne-side and in london, meeting clandestinely on horseback and on foot, corresponding privately by letters and confidential messengers; how, eventually, the lovers, to the consternation of 'good society' in newcastle, were made husband and wife at blackshiels, north britain. who is ignorant of the story? does not every visitor to newcastle pause before an old house in sandhill, and look up at the blue pane which marks the window from which bessie descended into her lover's arms? jack and bessie were not punished with even that brief period of suffering and uncertainty which conscientious novelists are accustomed, for the sake of social morals, to assign to run-away lovers before the merciful guardian or tender parent promises forgiveness and a liberal allowance, paid in quarterly installments. in his old age eldon used to maintain that their plight was very pitiable on the third morning after their rash union. "our funds were exhausted: we had not a home to go to, and we knew not whether our friends would ever speak to us again." in this strain ran the veteran's story, which, like all other anecdotes from the same source, must be received with caution. but even the old peer, ever ready to exaggerate his early difficulties, had not enough effrontery to represent that their dejection lasted more than three days. the fathers of the bride and bridegroom soon met and came to terms, and with the beginning of the new year bessie scott was living in new inn hall, oxford, whilst her husband read vinerian lectures, and presided over that scholastic house. the position of scott at this time was very singular. he was acting as substitute for sir robert chambers, the principal of new inn hall and vinerian professor of law, who contrived to hold his university preferments, whilst he discharged the duties of a judge in india. to give an honest color to this indefensible arrangement, it was provided that the lectures read from the vinerian chair should actually be written by the professor, although they were delivered by deputy. scott, therefore, as the professor's mouth-piece, on a salary of £ a year, with free quarters in the principal's house, was merely required to read a series of treatises sent to him by the absent teacher. "the law-professor," the ex-chancellor used to relate with true eldonian humor and _fancy_--"sent me the first lecture, which i had to read immediately to the students, and which i began without knowing a single word that was in it. it was upon the statute ( and p. and m. c. ), 'of young men running away with maidens.' fancy me reading, with about boys and young men all giggling at the professor! such a tittering audience no one ever had." if this incident really occurred on the occasion of his 'first reading,' the laughter must have been inextinguishable; for, of course, jack scott's run-away marriage had made much gossip in oxford common rooms, and the singular loveliness of his girlish wife (described by an eye-witness as being "so very young as to give the impression of childhood,") stirred the heart of every undergraduate who met her in high street. there is no harm done by laughter at the old chancellor's romantic fictions about the poverty which he and his bessie encountered, hand in hand, at the outset of life; for the laughter blinds no one to the genuine affection and wholesome honesty of the young husband and wife. one has reason to wish that marriages such as theirs were more frequent amongst lawyers in these ostentatious days. at present the young barrister, who marries before he has a clear fifteen hundred a year, is charged with reckless imprudence; and unless his wife is a woman of fortune, or he is able to settle a heavy sum of money upon her, his anxious friends terrify him with pictures of want and sorrow stored up for him in the future. society will not let him live after the fashion of 'juniors' eighty or a hundred years since. he must maintain two establishments--his chambers for business, his house in the west-end of town for his wife. moreover, the lady must have a brougham and liberal pin money, or four or five domestic servants and a drawing-room well furnished with works of art and costly decorations. they must give state dinners and three or four routs every season; and in all other matters their mode of life must be, or seem to be, that of the upper ten thousand. either they must live in this style, or be pushed aside and forgotten. the choice for them lies between very expensive society or none at all--that is to say, none at all amongst the rising members of the legal profession, and the sort of people with whom young barristers, from prudential motives, wish to form acquaintance. doubtless many a fair reader of this page is already smiling at the writer's simplicity, and is saying to herself, "here is one of the advocates of marriage on three hundred a year." but this writer is not going to advocate marriage on that or any other particular sum. from personal experience he knows what comfort a married man may have for an outlay of three or four hundred per annum; and from personal observation he knows what privations and ignominious poverty are endured by unmarried men who spend twice the larger of those sums on chamber-and-club life. he knows that there are men who shiver at the bare thought of losing caste by marriage with a portionless girl, whilst they are complacently leading the life which, in nine cases out of ten, terminates in the worst form of social degradation--matrimony where the husband blushes for his wife's early history, and dares not tell his own children the date of his marriage certificate. if it were his pleasure he could speak sad truths about the bachelor of modest income, who is rich enough to keep his name on the books of two fashionable clubs, to live in a good quarter of london, and to visit annually continental capitals, but far too poor to think of incurring the responsibilities of marriage. it could be demonstrated that in a great majority of instances this wary, prudent, selfish gentleman, instead of being the social success which many simple people believe him, is a signal and most miserable failure; that instead of pursuing a career of various enjoyments and keen excitements, he is a martyr to _ennui_, bored by the monotony of an objectless existence, utterly weary of the splendid clubs, in which he is presumed by unsophisticated admirers to find an ample compensation for want of household comfort and domestic affection: that as soon as he has numbered forty years, he finds the roll of his friends and cordial acquaintances diminish, and is compelled to retire before younger men, who snatch from his grasp the prizes of social rivalry; and that, as each succeeding lustre passes, he finds the chain of his secret disappointments and embarrassments more galling and heavy. it is not a question of marriage on three hundred a year without prospects, but a marriage on five or six hundred a year with good expectations. in the inns of court there are, at the present time, scores of clever, industrious fine-hearted gentlemen who have sure incomes of three or four hundred pounds per annum. in tyburnia and kensington there is an equal number of young gentlewomen with incomes varying between £ and £ a year. these men and women see each other at balls and dinners, in the parks and at theatres; the ladies would not dislike to be wives, the men are longing to be husbands. but that hideous tyrant, social opinion, bids them avoid marriage. in lord eldon's time the case was otherwise. society saw nothing singular or reprehensible in his conduct when he brought bessie to live in the little house in cursitor street. no one sneered at the young law-student, whose home was a little den in a dingy thoroughfare. at a later date, the rising junior, whose wife lived over his business chambers in carey street, was the object of no unkind criticism because his domestic arrangements were inexpensive, and almost frugal. had his success been tardy instead of quick and decisive, and had circumstances compelled him to live under the shadow of lincoln's inn wall for thirty years on a narrow income, he would not on that account have suffered from a single disparaging criticism. amongst his neighbors in adjacent streets, and within the boundaries of his inn, he would have found society for himself and wife, and playmates for his children. good fortune coming in full strong flood, he was not compelled to greatly change his plan of existence. even in those days, when costly ostentation characterized aristocratic society--he was permitted to live modestly--and lay the foundation of that great property which he transmitted to his ennobled descendants. when satire has done its worst with the miserly propensities of the great lawyer and his wife, their long familiar intercourse exhibits a wealth of fine human affection and genuine poetry which sarcasm cannot touch. often as he had occasion to regret lady eldon's peculiarities--the stinginess which made her grudge the money paid for a fish or a basket of fruit; the nervous repugnance to society, which greatly diminished his popularity; and the taste for solitude and silence which marked her painfully towards the close of her life--the chancellor never even hinted to her his dissatisfaction. when their eldest daughter, following her mother's example, married without the permission of her parents, it was suggested to lord eldon that her ladyship ought to take better care of her younger daughter, lady frances, and entering society should play the part of a vigilant _chaperon_. the counsel was judicious; but the chancellor declined to act upon it, saying,--"when she was young and beautiful, she gave up everything for me. what she is, i have made her; and i cannot now bring myself to compel her inclinations. our marriage prevented her mixing in society when it afforded her pleasure; it appears to give pain now, and why should i interpose?" in his old age, when she was dead, he visited his estate in durham, but could not find heart to cross the tyne bridge and look at the old house from which he took her in the bloom and tenderness of her girlhood. an urgent invitation to visit newcastle drew from him the reply--"i know my fellow-townsmen complain of my not coming to see them; but _how can i pass that bridge?_" after a pause, he added, "poor bessie! if ever there was an angel on earth she was one. the only reparation which one man can make to another for running away with his daughter, is to be exemplary in his conduct towards her." in pecuniary affairs not less prudent than his brother, lord stowell in matters of sentiment was capable of indiscretion. in the long list of legal loves there are not many episodes more truly ridiculous than the story of the older scott's second marriage. on april , , the decorous sir william scott, and louisa catharine, widow of john, marquis of sligo, and daughter of admiral lord howe, were united in the bonds of holy wedlock, to the infinite amusement of the world of fashion, and to the speedy humiliation of the bridegroom. so incensed was lord eldon at his brother's folly, that he refused to appear at the wedding; and certainly the chancellor's displeasure was not without reason, for the notorious absurdity of the affair brought ridicule on the whole of the scott family connexion. the happy couple met for the first time in the old bailey, when sir william scott and lord ellenborough presided at the trial of the marchioness's son, the young marquis of sligo, who had incurred the anger of the law by luring into his yacht, in mediterranean waters, two of the king's seamen. throughout the hearing of that _cause célèbre_, the marchioness sat in the fetid court of the old bailey, in the hope that her presence might rouse amongst the jury or in the bench feelings favorable to her son. this hope was disappointed. the verdict having been given against the young peer, he was ordered to pay a fine of £ , and undergo four months' incarceration in newgate, and--worse than fine and imprisonment--was compelled to listen to a parental address from sir william scott on the duties and responsibilities of men of high station. either under the influence of sincere admiration for the judge, or impelled by desire for vengeance on the man who had presumed to lecture her son in a court of justice, the marchioness wrote a few hasty words of thanks to sir william scott for his salutary exhortation to her boy. she even went so far as to say that she wished the erring marquis could always have so wise a counsellor at his side. this communication was made upon a slip of paper, which the writer sent to the judge by an usher of the court. sir william read the note as he sat on the bench, and having looked towards the fair scribe, he received from her a glance and smile that were fruitful of much misery to him. within four months the courteous sir william scott was tied fast to a beautiful, shrill, voluble termagant, who exercised marvellous ingenuity in rendering him wretched and contemptible. reared in a stately school of old-world politeness, the unhappy man was a model of decorum and urbanity. he took reasonable pride in the perfection of his tone and manner; and the marchioness--whose malice did not lack cleverness--was never more happy than when she was gravely expostulating with him, in the presence of numerous auditors, on his lamentable want of style, tact, and gentlemanlike bearing. it is said that, like coke and holt under similar circumstances, sir william preferred the quietude of his chambers to the society of an unruly wife, and that in the cellar of his inn he sought compensation for the indignities and sufferings which he endured at home. fifty years since the crusted port of the middle temple could soothe the heart at night, without paining the head in the morning. part iii. money. chapter xii. fees to counsel. from time immemorial popular satire has been equally ready to fix the shame of avarice upon divinity physic, and law; and it cannot be denied that in this matter the sarcasms of the multitude are often sustained by the indisputable evidence of history. the greed of the clergy for tithes and dues is not more widely proverbial than the doctor's thirst for fees, or the advocate's readiness to support injustice for the sake of gain. of guyllyam of horseley, physician to charles vi. of france, froissart says, "all his dayes he was one of the greatest nygardes that ever was;" and the chronicler adds, "with this rodde lightly all physicians are beaten." in his address to the sergeants who were called soon after his elevation to the marble chair, the lord keeper puckering, directing attention to the grasping habits which too frequently disgraced the leaders of the bar, observed: "i am to exhort you also not to embrace multitude of causes, or to undertake more places of hearing causes than you are well able to consider of or perform, lest thereby you either disappoint your clients when their causes be heard, or come unprovided, or depart when their causes be in hearing. for it is all one not to come, as either to come unprovided, or depart before it be ended." notwithstanding lingard's able defence of the cardinal, scholars are still generally of opinion that beaufort--the chancellor who lent money on the king's crown, the bishop who sold the pope's soldiers for a thousand marks--is a notable instance of the union of legal covetousness and ecclesiastical greed. the many causes which affect the value of money in different ages create infinite perplexity for the antiquarian who wishes to estimate the prosperity of the bar in past times; but the few disjointed data, that can be gathered from old records, create an impression that in the fourteenth, fifteenth and sixteenth centuries the ordinary fees of eminent counsel were by no means exorbitant, although fortunate practitioners could make large incomes. dugdale's 'baronage' describes with delightful quaintness william de beauchamp's interview with his lawyers when that noble (on the death of john hastings, earl of pembroke, _temp._ richard ii., without issue), claimed the earl's estates under an entail, in opposition to edward hastings, the earl's heir-male of the half-blood. "beauchamp," says dugdale, "invited his learned counsel to his house in paternoster row, in the city of london; amongst whom were robert charlton (then a judge), william pinchbek, william branchesley, and john catesby (all learned lawyers); and after dinner, coming out of his chapel, in an angry mood, threw to each of them a piece of gold, and said, 'sirs, i desire you forthwith to tell me whether i have any right or title to hastings' lordship and lands.' whereupon pinchbek stood up (the rest being silent, fearing that he suspected them), and said, 'no man here nor in england dare say that you have any right in them, except hastings do quit his claim therein; and should he do it, being now under age, it would be of no validitie.'" had charlton, the chief justice of the common pleas, taken gold for his opinion on a case put before him in his judicial character, he would have violated his judicial oath. but in the earl's house in paternoster row he was merely a counsellor learned in the law, not a judge. manifest perils attend a system which permits a judge in his private character to give legal opinions concerning causes on which he may be required to give judgment from the bench; but notwithstanding those perils, there is no reason for thinking that charlton on this occasion either broke law or etiquette. the fair inference from the matter is, that in the closing years of the fourteenth century judges were permitted to give opinions for money to their private clients, although they were forbidden to take gold or silver from any person having "plea or process hanging before them." in the year of our lord the corporation of canterbury paid for advice regarding their civic interests _s._ _d._ to each of three sergeants, and gave the recorder of london _s._ _d._ as a retaining-fee. five years later, mr. serjeant wood received a fee of _s._ from the goldsmiths' company; and it maybe fairly assumed, that so important and wealthy a body paid the sergeant on a liberal scale. in the sixteenth century it was, and for several generations had been, customary for clients to provide food and drink for their counsel. mr. foss gives his readers the following list of items, taken from a bill of costs, made in the reign of edward iv.:-- _s._ _d._ for a breakfast at westminster spent on our counsel to another time for boat-hire in and out, and a breakfast for two days in like manner the accountant of st. margaret's, westminster, entered in the parish books, "also, paid to roger fylpott, learned in the law, for his counsel given, _s._ _d._, with _d._ for his dinner." a yet more remarkable custom was that which enabled clients to hire counsel to plead for them at certain places, for a given time, in whatever causes their eloquence might be required. there still exists the record of an agreement by which, in the reign of henry vii., sergeant yaxley bound himself to attend the assizes at york, nottingham and derby, and speak in court at each of those places, whenever his client, sir robert plumpton--"that perpetual and always unfortunate litigant," as he is called by sergeant manning--required him to do so. this interesting document runs thus--"this bill, indented at london the th day of july, the th yeare of the reigne of king henry the th, witnesseth that john yaxley, sergeant-at-law, shall be at the next assizes to be holden at york, nottin., and derb., if they be holden and kept, and there to be of council with sir robert plumpton, knight, such assizes and actions as the said sir robert shall require the said john yaxley, for the which premises, as well as for his costs and his labours, john pulan, gentleman, bindeth him by thease presents to content and pay to the said john yaxley marks sterling at the feast of the nativetie of our lady next coming, or within eight days next following, with li paid aforehand, parcell of paiment of the said marks. provided alway that if the said john yaxley have knowledg and warning only to cum to nottin. and derby, then the said john yaxley is agread by these presents to take only xv li besides the li aforesaid. provided alwaies that if the said john yaxley have knowledg and warning to take no labour in this matter, then he to reteine and hold the said li resaived for his good will and labour. in witness hereof, the said john yaxley, serjeant, to the part of this indenture remaining with the said john pulan have put his seale the day and yeare above-written. provided also that the said robert plumpton shall beare the charges of the said john yaxley, as well at york as at nottingham and derby, and also to content and pay the said money to the said john yaxley comed to the said assizes att nott., derb., and york. john yaxley." this remarkable agreement--made after richard iii. had vainly endeavored to compose by arbitration the differences between sir robert and sir robert's heir-general--certifies that sir robert plumpton engaged to provide the sergeant with suitable entertainment at the assize towns, and also throws light upon the origin of retaining-fees. it appears from the agreement that in olden time a retaining fee was merely part (surrendered in advance) of a certain sum stipulated to be paid for certain services. in principle it was identical with the payment of the shilling, still given in rural districts, to domestic servants on an agreement for service, and with the transfer of the queen's shilling given to every soldier on enlistment. there is no need to mention the classic origin of this ancient mode of giving force to a contract. from the 'household and privy purse expenses of the le stranges of hunstanton,' published in the archæologia, may be gleamed some interesting particulars relating to the payment of counsel in the reign of henry viii. in , mr. cristofer jenney received from the le stranges a half-yearly fee of ten shillings; and this general retainer was continued on the same terms till , when the fee was raised from £ per annum to a yearly payment of £ _s._ _d._ to mr. knightley was paid the sum of _s._ _d._ "for his fee, and that money yt he layde oute for suying of simon holden;" and the same lawyer also received at another time _s._ _d._ "for his fee and cost of sute for iii termes." a fee of _s._ _d._ was paid to "mr. spelman, s'jeant, for his counsell in makyng my answer in ye duchy cham.;" and the same serjeant received a fee of _s._ _d._ "for his counsell in putting in of the answer." fees of _s._ _d._ were in like manner given "for counsell" to mr. knightley and mr. whyte; and in , mr. yelverton was remunerated "for his counsell" with the unusually liberal honorarium of twenty shillings. from the household book of the earl of northumberland, it appears that order was made, in this same reign, for "every oone of my lordes counsaill to have c's. fees, if he have it in household and not by patent." after the earl's establishment was reduced to forty-two persons, it still retained "one of my lordes counsaill for annswering and riddying of causes, whenne sutors cometh to my lord." at a time when every lord was required to administer justice to his tenants and the inferior people of his territory, a counsellor learned in the law, was an important and most necessary officer in a grand seigneur's retinue. whilst sir thomas more lived in bucklersbury, he "gained, without grief, not so little as £ by the year." this income doubtless accrued from the emoluments of his judicial appointment in the city, as well as from his practice at westminster and elsewhere. in henry viii.'s time it was a very considerable income, such as was equalled by few leaders of the bar not holding high office under the crown. in elizabeth's reign, and during the time of her successor, barristers' fees show a tendency toward increase; and the lawyers who were employed as advocates for the crown, or held judicial appointments, acquired princely incomes, and in some cases amassed large fortunes. fees of _s._ were more generally paid to counsel under the virgin queen, than in the days of her father; but still half that fee was not thought too small a sum for an opinion given by her majesty's solicitor general. indeed, the ten-shilling fee was a very usual fee in elizabeth's reign; and it long continued an ordinary payment for one opinion on a case, or for one speech in a cause of no great importance and of few difficulties. 'a barrister is like balaam's ass, only speaking when he sees the angel,' was a familiar saying in the seventeenth century. in chancery, however, by an ordinance of the lords commissioners passed in , to regulate the conduct of suits and the payments to masters, counsel, and solicitors, it was arranged that on the hearing of a cause, utter-barristers should receive £ fees, whilst the lord protector's counsel and sergeants-at-law should receive £ fees, _i.e._, 'double fees.' the archives of lyme regis show that under elizabeth the usage was maintained of supplying counsel with delicacies of the table, and also of providing them with means of locomotion. here are some items in an old record of disbursements made by the corporation of lyme regis:--"a.d. paid for wine carried with us to mr. poulett--£ _s._ _d._; wine and sugar given to mr. poulett, £ _s._ _d._; horse-hire, and for the sergeant to ride to mr. walrond, of bovey, and for a loaf of sugar, and for conserves given there to mr. poppel, £ _s._ _d._; wine and sugar given to judge anderson, £ _s._ _d._ a bottle and sugar given to mr. gibbs (a lawyer)." under elizabeth, the allowance made to queen's sergeants was £ _s._ _d._ for fee, reward, and robes; and £ . for his services whenever a queen's sergeant travelled circuit as justice of assize. the fee for her solicitor general was £ . when francis bacon was created king's counsel to james i., an annual salary of forty pounds was assigned to him from the royal purse; and down to william iv.'s time, king's counsel received a stipend of £ a year, and an allowance for stationery. under the last mentioned monarch, however, the stipend and allowance were both withdrawn; and at present the status of a q.c. is purely an affair of professional precedence, to which no fixed emolument is attached. but a list of the fees, paid from the royal purse to each judge or crown lawyer under james i., would afford no indication as to the incomes enjoyed by the leading members of the bench and bar at that period. the salaries paid to those officers were merely retaining fees, and their chief remuneration consisted of a large number of smaller fees. like the judges of prior reigns, king james's judges were forbidden to accept _presents_ from actual suitors; but no suitor could obtain a hearing from any one of them, until he had paid into court certain fees, of which the fattest was a sum of money for the judge's personal use. at one time many persons labored under an erroneous impression, that as judges were forbidden to accept presents from actual suitors, the honest judge of past times had no revenue besides his specified salary and allowance. like the king's judges, the king's counsellors frequently made great incomes by fees, though their nominal salaries were invariably insignificant. at a time when francis bacon was james's attorney general, and received no more than £ _s._ _d._ for his yearly salary, he made £ per annum in his profession; and of that income--a royal income in those days--the greater portion consisted of fees paid to him for attending to the king's business. "i shall now," bacon wrote to the king, "again make oblation to your majesty,--first of my heart, then of my service; thirdly, of my place of attorney, which i think is honestly worth £ per annum; and fourthly, of my place in the star chamber, which is worth £ per annum, and with the favor and countenance of a chancellor, much more." coke had made a still larger income during his tenure of the attorney's place, the fees from his private official practice amounting to no loss a sum than seven thousand pounds in a single year. at later periods of the seventeenth century barristers made large incomes, but the fees seem to have been by no means exorbitant. junior barristers received very modest payments, and it would appear that juniors received fees from eminent counsel for opinions and other professional services. whilst he acted as treasurer of the middle temple, at an early period of his career, whitelock received a fee from attorney general noy. "upon my carrying the bill," writes whitelock, "to mr. attorney general noy for his signature, with that of the other benchers, he was pleased to advise with me about a patent the king had commanded him to draw, upon which he gave me a fee for it out of his little purse, saying, 'here, take those single pence,' which amounted to eleven groats, 'and i give you more than an attorney's fee, because you will be a better man than the attorney general. this you will find to be true.' after much other drollery, wherein he delighted and excelled, we parted, abundance of company attending to speak to him all this time." of course the payment itself was no part of the drollery to which whitelock alludes, for as a gentleman he could not have taken money proffered to him in jest, unless etiquette encouraged him to look for it, and allowed him to accept it. the incident justifies the inference that the services of junior counsel to senior barristers--services at the present time termed 'devilling'--were formerly remunerated with cash payments. toward the close of charles i.'s reign--at a time when political distractions were injuriously affecting the legal profession, especially the staunch royalists of the long robe--maynard, the parliamentary lawyer, received on one round of the western circuit, £ , "which," observes whitelock, to whom maynard communicated the fact, "i believe was more than any one of our profession got before." concerning the incomes made by eminent counsel in charles ii.'s time, many _data_ are preserved in diaries and memoirs. that a thousand a year was looked upon as a good income for a flourishing practitioner of the 'merry monarch's' chancery bar, may be gathered from a passage in 'pepys's diary,' where the writer records the compliments paid to him regarding his courageous and eloquent defence of the admiralty, before the house of commons, in march, . under the influence of half-a-pint of mulled sack and a dram of brandy, the admiralty clerk made such a spirited and successful speech in behalf of his department, that he was thought to have effectually silenced all grumblers against the management of his majesty's navy. compliments flowed in upon the orator from all directions. sir william coventry pledged his judgment that the fame of the oration would last for ever in the commons; silver-tongued sir heneage finch, in the blandest tones, averred that no other living man could have made so excellent a speech; the placemen of the admiralty vied with each other in expressions of delight and admiration; and one flatterer, whose name is not recorded, caused mr. pepys infinite pleasure by saying that the speaker who had routed the accusers of a government office, might easily earn a thousand a year at the chancery bar. that sum, however, is insignificant when it is compared with the incomes made by the most fortunate advocates of that period. eminent speakers of the common law bar made between £ and £ per annum on circuit and at westminster, without the aid of king's business; and still larger receipts were recorded in the fee-books of his majesty's attorneys and solicitors. at the chancery bar of the second charles, there was at least one lawyer, who in one year made considerably more than four times the income that was suggested to pepys's vanity and self-complacence. at stanford court, worcestershire, is preserved a fee-book kept by sir francis winnington, solicitor-general to the 'merry monarch,' from december to january , , from the entries of which record the reader may form a tolerably correct estimate of the professional revenues of successful lawyers at that time. in easter term, , sir francis pocketed £ ; in trinity term £ s.; in michaelmas term £ ; and in hilary term , £ s.; the income for the year being £ , without his earnings on the oxford circuit and during vacation. in , sir francis received £ ; in , he earned £ ;[ ] and in --_i.e._, the first year of his tenure of the solicitor's office--his professional income wars £ , of which sum £ were office fees. concerning the attorney-general's receipts about this time, we have sufficient information from roger north, who records that his brother, whilst attorney general, made nearly seven thousand pounds in one year, from private and official business. it is noteworthy that north, as attorney general, made the same income which coke realized in the same office at the commencement of the century. but under the stuarts this large income of £ --in those days a princely revenue--was earned by work so perilous and fruitful of obloquy, that even sir francis, who loved money and cared little for public esteem, was glad to resign the post of attorney and retire to the pleas with £ a year. that the fees of the chancery lawyers under charles ii. were regulated upon a liberal scale we know from roger north, and the record of sir john king's success. speaking of his brother francis, the biographer says: "after he, as king's counsel, came within the bar, he began to have calls into the court of chancery; which he liked very well, because the quantity of the business, _as well as the fees_, was greater; but his home was the king's bench, where he sat and reported like as other practitioners." and in sir john king's memoirs it is recorded that in he made £ , and that he received from £ to £ a day during the last four days of his appearance in court. dying in ,[ ] whilst his supremacy in his own court was at its height, sir john king was long spoken of as a singularly successful chancery barrister. of francis north's mode of taking and storing his fees, the 'life of lord keeper guildford' gives the following picture: "his business increased, even while he was solicitor, to be so much as to have overwhelmed one less dexterous; but when he was made attorney general, though his gains by his office were great, they were much greater by his practice; for that flowed in upon him like an orage, enough to overset one that had not an extraordinary readiness in business. his skull-caps, which he wore when he had leisure to observe his constitution, as i touched before, were now destined to lie in a drawer to receive the money that came in by fees. one had the gold, another the crowns and half-crowns, and another the smaller money. when these vessels were full, they were committed to his friend (the hon. roger north), who was constantly near him, to tell out the cash, and put it into the bags according to the contents; and so they went to his treasurers, blanchard and child, goldsmiths, temple bar."[ ] in the days of wigs, skull-caps like those which francis north used as receptacles for money, were very generally worn by men of all classes and employments. on returning to the privacy of his home, a careful citizen usually laid aside his costly wig, and replaced it with a cheap and durable skull-cap, before he sat down in his parlor. so also, men careful of their health often wore skull-caps _under_ their wigs, on occasions when they were required to endure a raw atmosphere without the protection of their beavers. in days when the law-courts were held in the open hall of westminster, and lawyers practising therein, were compelled to sit or speak for hours together, exposed to sharp currents of cold air, it was customary for wearers of the long robe to place between their wigs and natural hair closely-fitting caps, made of stout silk or soft leather. but more interesting than the money-caps, are the fees which they contained. the ringing of the gold pieces, the clink of the crowns with the half-crowns, and the rattle of the smaller money, led back the barrister to those happier and remote times, when the 'inferior order' of the profession paid the superior order with 'money down;' when, the advocate never opened his mouth till his fingers had closed upon the gold of his trustful client; when 'credit' was unknown in transactions between counsel and attorney;--that truly _golden_ age of the bar, when the barrister was less suspicious of the attorney, and the attorney held less power over the barrister. having profited by the liberal payments of chancery whilst he was an advocate, lord keeper guildford destroyed one source of profit to counsel from which francis north, the barrister, had drawn many a capful of money. saith roger, "he began to rescind all motions for speeding and delaying the hearing of causes besides the ordinary rule of court; and this lopped off a limb of the motion practice. i have heard sir john churchill, a famous chancery practitioner, say, that in his walk from lincoln's inn down to the temple hall, where, in the lord keeper bridgman's time, causes and motions out of term were heard, he had taken £ . with breviates only for motions and defences for hastening and retarding hearings. his lordship said, that the rule of the court allowed time enough for any one to proceed or defend; and if, for special reasons, he should give way to orders for timing matters, it would let in a deluge of vexatious pretenses, which, true or false, being asserted by the counsel with equal assurance, distracted the court and confounded the suitors." let due honor be rendered to one caroline, lawyer, who was remarkable for his liberality to clients, and carelessness of his own pecuniary interests. from his various biographers, many pleasant stories may be gleaned concerning hale's freedom from base love of money. in his days, and long afterward, professional etiquette permitted clients and counsel to hold intercourse without the intervention of an attorney. suitors, therefore, frequently addressed him personally and paid for his advice with their own hands, just as patients are still accustomed to fee their doctors. to these personal applicants, and also to clients who approached him by their agents, he was very liberal. "when those who came to ask his counsel gave him a piece, he used to give back the half, and to make ten shillings his fee in ordinary matters that did not require much time or study." from this it may be inferred that whilst hale was an eminent member of the bar, twenty shillings was the usual fee to a leading counsel, and an angel the customary honorarium to an ordinary practitioner. as readers have already been told, the angel[ ] was a common fee in the seventeenth century; but the story of hale's generous usage implies that his more distinguished contemporaries were wont to look for and accept a double fee. moreover, the anecdote would not be told in hale's honor, if etiquette had fixed the double fee as the minimum of remuneration for a superior barrister's opinion. he was frequently employed in arbitration cases, and as an arbitrator he steadily refused payment for his services to legal disputants, saying, in explanation of his moderation, "in these cases i am made a judge, and a judge ought to take no money." the misapprehension as to the nature of an arbitrator's functions, displayed in these words, gives an instructive insight into the mental constitution of the judge who wrote on natural science, and at the same time exerted himself to secure the conviction of witches. a more pleasant and commendable illustration of his conscientiousness in pecuniary matters, is found in the steadiness with which he refused to throw upon society the spurious coin which he had taken from his clients. in a tone of surprise that raises a smile at the average morality of our forefathers, bishop burnet tells of hale: "another remarkable instance of his justice and goodness was, that when he found ill money had been put into his hands, he would never suffer it to be vented again; for he thought it was no excuse for him to put false money in other people's hands, because some had put it into his. a great heap of this he had gathered together, for many had so abused his goodness as to mix base money among the fees that were given him." in this particular case, the judge's virtue was its own reward. his house being entered by burglars, this accumulation of bad money attracted the notice of the robbers, who selected it from a variety of goods and chattels, and carried it off under the impression that it was the lawyer's hoarded treasure. besides large sums expended on unusual acts of charity, this good man habitually distributed amongst the poor a tithe of his professional earnings. in the seventeenth century, general retainers were very common, and the counsel learned in the law, were ready to accept them from persons of low extraction and questionable repute. indeed, no upstart deemed himself properly equipped for a campaign at court, until he had recorded a fictitious pedigree at the herald's college, taken a barrister as well as a doctor into regular employment, and hired a curate to say grace daily at his table. in the summer of his vile triumph, titus oates was attended, on public occasions, by a robed counsel and a physician. [ ] in his 'survey of the state of england in ,' macauley--giving one of those misleading references with which his history abounds--says: "a thousand a year was thought a large income for a barrister. two thousand a year was hardly to be made in the court of king's bench, except by crown lawyers." whilst making the first statement, he doubtless remembered the passage in 'pepys's diary.' for the second statement, he refers to 'layton's conversation with chief justice hale.' it is fair to assume that lord macauley had never seen sir francis winnington's fee-book. [ ] in the fourth day of his fever, he being att the chancery bar, he fell so ill of the fever, that he was forced to leave the court and come to his chambers in the temple, with one of his clerks, which constantly wayted on him and carried his bags of writings for his pleadings, and there told him that he should return to every clyent his breviat and his fee, for he could serve them no longer, for he had done with this world, and thence came home to his house in salisbury court, and took his bed.... and there he sequestered himself to meditation between god and his own soul, without the least regret, and quietly and patiently contented himself with the will of god.--_vide memoir of sir john king, knt., written by his father._ [ ] the lawyers of the seventeenth century were accustomed to make a show of their fees to the clients who called upon them. hudibras's lawyer (hud., part iii. cant. ) is described as sitting in state with his books and money before him: "to this brave man the knight repairs for counsel in his law affairs, and found him mounted in his pew, with books and money placed for shew, like nest-eggs, to make clients lay, and for his false, opinion pay: to whom the knight, with comely grace, put off his hat to put his case, which he as proudly entertain'd as the other courteously strain'd; and to assure him 'twas not that he looked for, bid him put on's hat." under victoria, the needy junior is compelled, for the sake of appearances, to furnish his shelves with law books, and cover his table with counterfeit briefs. under the stuarts, he placed a bowl of spurious money amongst the sham papers that lay upon his table. [ ] in the 'serviens ad legem,' mr. sergeant manning raises question concerning the antiquity of _guineas_ and half-guineas, with the following remarks:--"should any cavil be raised against this jocular allusion, on the ground that guineas and half-guineas were unknown to sergeants who flourished in the sixteenth century, the objector might be reminded, that in antique records, instances occur in which the 'guianois d'or,' issued from the ducal mint at bordeaux, by the authority of the plantagenet sovereigns of guienne, were by the same authority, made current among their english subjects; and it might be suggested that those who have gone to the coast of africa for the origin of the modern guinea, need not have carried their researches beyond the bay of biscay. _quære_, whether the guinea coast itself may not owe its name to the 'guianois d'or' for which it furnished the raw material." chapter xiii. retainers general and special. pemberton's fees for his services in behalf of the seven bishops show that the most eminent counsel of his time were content with very modest remuneration for advice and eloquence. from the bill of an attorney employed in that famous trial, it appears that the ex-chief justice was paid a retaining-fee of five guineas, and received twenty guineas with his brief. he also pocketed three guineas for a consultation. at the present date, thirty times the sum of these paltry payments would be thought an inadequate compensation for such zeal, judgment, and ability as francis pemberton displayed in the defence of his reverend clients. but, though lawyers were paid thus moderately in the seventeenth century, the complaints concerning their avarice and extortions were loud and universal. this public discontent was due to the inordinate exactions of judges and place-holders rather than to the conduct of barristers and attorneys; but popular displeasure seldom cares to discriminate between the blameless and the culpable members of an obnoxious system, or to distinguish between the errors of ancient custom and the qualities of those persons who are required to carry out old rules. hence the really honest and useful practitioners of the law endured a full share of the obloquy caused by the misconduct of venal justices and corrupt officials. counsel, attorneys, and even scriveners came in for abuse. it was averred that they conspired to pick the public pocket; that eminent conveyancers not less than copying clerks, swelled their emoluments by knavish tricks. they would talk for the mere purpose of protracting litigation, injure their clients by vexations and bootless delays, and do their work so that they might be fed for doing it again. draughtsmen find their clerks wrote loosely and wordily, because they were paid by the folio. "a term," writes the quaint author of 'saint hillaries teares,' in , "so like a vacation; the prime court, the chancery (wherein the clerks had wont to dash their clients out of countenance with long dashes); the examiners to take the depositions in hyperboles, and roundabout _robinhood_ circumstances with _saids_ and _aforesaids_, to enlarge the number of sheets." 'hudibras' contains, amongst other pungent satires against the usages of lawyers, an allusion to this characteristic custom of legal draughtsmen, who being paid by the sheet, were wont "to make 'twixt words and lines large gaps, wide as meridians in maps; to squander paper and spare ink, or cheat men of their words some think." in the following century the abuses consequent on the objectionable system of folio-payment were noticed in a parliamentary report (bearing date november , ), which was the most important result of an ineffectual attempt to reform the superior courts of law and to lessen the expenses of litigation. more is known about the professional receipts of lawyers since the revolution of than can be discovered concerning the incomes of their precursors in westminster hall. for six years, commencing with michaelmas term, , sir john cheshire, king's sergeant, made an average annual income of _l._ being then sixty-three years of age, he limited his practice to the common pleas, and during the next six years made in that one court _l._ per annum. mr. foss, to whom the present writer is indebted for these particulars with regard to sir john cheshire's receipts, adds: "the fees of counsel's clerks form a great contrast with those that are now demanded, being only threepence on a fee of half-a-guinea, sixpence for a guinea, and one shilling for two guineas." of course the increase of clerk's fees tells more in favor of the master than the servant. at the present time the clerk of a barrister in fairly lucrative practice costs his master nothing. bountifully paid by his employer's clients, he receives no salary from the counsellor whom he serves; whereas, in old times, when his fees were fixed at the low rate just mentioned, the clerk could not live and maintain a family upon them, unless his master belonged to the most successful grade of his order. horace walpole tells his readers that charles yorke "was reported to have received , guineas in fees;" but his fee-book shows that his professional rise was by no means so rapid as those who knew him in his sunniest days generally supposed. the story of his growing fortunes is indicated in the following statement of successive incomes:-- st year of practice at the bar, _l._ nd, _l._; rd and th, between _l._ and _l._ per annum; th, _l._; th, _l._; th, _l._; th, _l._; th, _l._ whilst solicitor general he made _l._ in ; and in the following year he earned _l._ his receipts during the last year of his tenure of the attorney generalship amounted to _l._ the reader should observe that as attorney general he made but little more than coke had realized in the same office,--a fact serving to show how much better paid were crown lawyers in times when they held office like judges during the sovereign's pleasure, than in these latter days when they retire from place together with their political parties. the difference between the incomes of scotch advocates and english barristers was far greater in the eighteenth century than at the present time, although in our own day the receipts of several second-rate lawyers of the temple and lincoln's inn far surpass the revenues of the most successful advocates of the edinburgh faculty. a hundred and thirty years since a scotch barrister who earned _l._ per annum by his profession was esteemed notably successful. just as charles yorke's fee-book shows us the pecuniary position of an eminent english barrister in the middle of the last century, john scott's list of receipts displays the prosperity of a very fortunate crown lawyer in the next generation. without imputing motives the present writer, may venture to say that lord eldon's assertions with regard to his earnings at the bar, and his judicial incomes, were not in strict accordance with the evidence of his private accounts. he used to say that his first year's earnings in his profession amounted to half-a-guinea, but there is conclusive proof that he had a considerable quantity of lucrative business in the same year. "when i was called to the bar," it was his humor to say, "bessie and i thought all our troubles were over, business was to pour in, and we were to be rich almost immediately. so i made a bargain with her that during the following year all the money i should receive in the first eleven months should be mine, and whatever i should get in the twelfth month should be hers. that was our agreement, and how do you think it turned out? in the twelfth month i received half-a-guinea--eighteenpence went for charity, and bessy got nine shillings. in the other eleven months i got one shilling." john scott, be it remembered, was called to the bar on february , , and on october , of the same year, william scott wrote to his brother henry--"my brother jack seems highly pleased with his circuit business. i hope it is only the beginning of future triumphs. all appearances speak strongly in his favor." there is no need to call evidence to show that eldon's success was more than respectable from the outset of his career, and that he had not been called many years before he was in the foremost rank of his profession. his fee-book gives the following account of his receipts in thirteen successive years:-- , _l._ _s._; , _l._ _s._; , _l._ _s._; , _l._ _s._; , _l._ _s._; , , _l._ _s._ _d._; , _l._ _s._; , , _l._ _s._ _d._; , , _l._; , , _l._ _s._ _d._; , , _l._ _s._ _d._; , , _l._ _s._ _d_; , , _l._ _s._ during the last six of the above-mentioned years he was attorney general, and during the preceding four years solicitor general. although general retainers are much less general than formerly, they are by no means obsolete. noblemen could be mentioned who at the present time engage counsel with periodical payments, special fees of course being also paid for each professional service. but the custom is dying out, and it is probable that after the lapse of another hundred years it will not survive save amongst the usages of ancient corporations. notice has already been taken of murray's conduct when he returned nine hundred and ninety-five out of a thousand guineas to the duchess of marlborough, informing her that the professional fee with the general retainer was neither more nor less than five guineas. the annual salary of a queen's counsel in past times was in fact a fee with a general retainer; but this periodic payment is no longer made to wearers of silk. in his learned work on 'the judges of england,' mr. foss observes: "the custom of retaining counsel in fee lingered in form, at least in one ducal establishment. by a formal deed-poll between the proud duke of somerset and sir thomas parker, dated july , , the duke retains him as his 'standing counsell in ffee,' and gives and allows him 'the yearly ffee of four markes, to be paid by my solicitor' at michaelmas, 'to continue during my will and pleasure.'" doubtless mr. foss is aware that this custom still 'lingers in form;' but the tone of his words justifies the opinion that he underrates the frequency with which general retainers are still given. the 'standing counsel' of civic and commercial companies are counsel with general retainers, and usually their general retainers have fees attached to them. the payments of english barristers have varied much more than the remunerations of english physicians. whereas medical practitioners in every age have received a certain definite sum for each consultation, and have been forbidden by etiquette to charge more or less than the fixed rate, lawyers have been allowed much freedom in estimating the worth of their labor. this difference between the usages of the two professions is mainly due to the fact, that the amount of time and mental effort demanded by patients at each visit or consultation is very nearly the same in all cases, whereas the requirements of clients are much more various. to get up the facts of a law-case may be the work of minutes, or hours, or days, or even weeks; to observe the symptoms of a patient, and to write a prescription, can be always accomplished within the limits of a short morning call. in all times, however, the legal profession has adopted certain scales of payment--that fixed the _minimum_ of remuneration, but left the advocate free to get more, as circumstances might encourage him to raise his demands. of the many good stories told of artifices by which barristers have delicately intimated their desire for higher payment, none is better than an anecdote recorded of sergeant hill. a troublesome case being laid before this most erudite of george iii.'s sergeants, he returned it with a brief note, that he "saw more difficulty in the case than, _under all the circumstances_, he could well solve." as the fee marked upon the case was only a guinea, the attorney readily inferred that its smallness was one of the circumstances which occasioned the counsel's difficulty. the case, therefore, was returned, with a fee of two guineas. still dissatisfied, sergeant hill wrote that "he saw no reason to change his opinion." by the etiquette of the bar no barrister is permitted to take a brief on any circuit, save that on which he habitually practises, unless he has received a special retainer; and no wearer of silk can be specially retained with a less fee than three hundred guineas. erskine's first special retainer was in the dean of st. asaph's case, his first speech in which memorable cause was delivered when he had been called to the bar but little more than five years. from that time till his elevation to the bench he received on an average twelve special retainers a year, by which at the minimum of payment he made £ per annum. besides being lucrative and honorable, this special employment greatly augmented his practice in westminster hall, as it brought him in personal contact with attorneys in every part of the country, and heightened his popularity amongst all classes of his fellow-countrymen. in he entirely withdrew from ordinary circuit practice, and confined his exertions in provincial courts to the causes for which he was specially retained. no advocate since his time has received an equal number of special retainers; and if he did not originate the custom of special retainers,[ ] he was the first english barrister who ventured to reject all other briefs. there is no need to recapitulate all the circumstances of erskine's rapid rise in his profession--a rise due to his effective brilliance and fervor in political trial: but this chapter on lawyers' fees would be culpably incomplete, if it failed to notice some of its pecuniary consequences. in the eighth month after his call to the bar he thanked admiral keppel for a splendid fee of one thousand pounds. a few years later a legal gossip wrote: "everybody says that erskine will be solicitor general, and if he is, and indeed whether he is or not, he will have had the most rapid rise that has been known at the bar. it is four years and a half since he was called, and in that time he has cleared £ or £ , besides paying his debts--got a silk gown, and business of at least £ a year--a seat in parliament--and, over and above, has made his brother lord advocate." merely to mention large fees without specifying the work by which they were earned would mislead the reader. during the railway mania of , the few leaders of the parliamentary bar received prodigious fees; and in some cases the sums were paid for very little exertion. frequently it happened that a lawyer took heavy fees in causes, at no stage of which he either made a speech or read a paper in the service of his too liberal employers. during that period of mad speculation the committee-rooms of the two houses were an el dorado to certain favored lawyers, who were alternately paid for speech and _silence_ with reckless profusion. but the time was so exceptional, that the fees received and the fortunes made in it by a score of lucky advocates and solicitors cannot be fairly cited as facts illustrating the social condition of legal practitioners. as a general rule, it may be stated that large fortunes are not made at the bar by large fees. our richest lawyers have made the bulk of their wealth by accumulating sufficient but not exorbitant payments. in most cases the large fee has not been a very liberal remuneration for the work done. edward law's retainer for the defence of warren hastings brought with it £ --a sum which caused our grandfathers to raise their hands in astonishment at the nabob's munificence; but the sum was in reality the reverse of liberal. in all, warren hastings paid his leading advocate considerably less than four thousand pounds; and if law had not contrived to win the respect of solicitors by his management of the defence, the case could not be said to have paid him for his trouble. so also the eminent advocate, who in the great case of small _v._ attwood received a fee of £ , was actually underpaid. when he made up the account of the special outlay necessitated by that cause, and the value of business which the burdensome case compelled him to decline, he had small reason to congratulate himself on his remuneration. a statement of the incomes made by chamber-barristers, and of the sums realized by counsel in departments of the profession that do not invite the attention of the general public, would astonish those uninformed persons who estimate the success of a barrister by the frequency with which his name appears in the newspaper reports of trials and suits. the talkers of the bar enjoy more _éclat_ than the barristers who confine themselves to chamber practice, and their labors lead to the honors of the bench; but a young lawyer, bent only on the acquisition of wealth, is more likely to achieve his ambition by conveyancing or arbitration-business than by court-work. kenyon was never a popular or successful advocate, but he made £ a year by answering cases. charles abbott at no time of his life could speak better than a vestryman of average ability; but by drawing informations and indictments, by writing opinions on cases, he made the greater part of the eight thousand pounds which he returned as the amount of his professional receipts in . in our own time, when that popular common law advocate, mr. edwin james, was omnipotent with juries, his income never equalled the incomes of certain chamber-practitioners whose names are utterly unknown to the general body of english society. [ ] lord campbell observes: "some say that special retainers began with erskine; but i doubt the fact." it is strange that there should be uncertainty as to the time when special retainers--unquestionably a comparatively recent innovation in legal practice--came into vogue. chapter xiv. judicial corruption. to a young student making his first researches beneath the surface of english history, few facts are more painful and perplexing than the judicial corruption which prevailed in every period of our country's growth until quiet recent times--darkening the brightest pages of our annals, and disfiguring some of the greatest chieftains of our race. where he narrates the fall and punishment of de weyland towards the close of the thirteenth century, speed observes: "while the jews by their cruel usuries had in one way eaten up the people, the justiciars, like another kind of jews, had ruined them with delay in their suits, and enriched themselves with wicked convictions." of judicial corruption in the reigns of edward i. and edward ii. a vivid picture is given in a political ballad, composed in the time of one or the other of those monarchs. of this poem mr. wright, in his 'political songs,' gives a free version, a part of which runs thus:-- "judges there are whom gifts and favorites control, content to serve the devil alone and take from him a toll; if nature's law forbids the judge from selling his decree, how dread to those who finger bribes the punishment shall be. "such judges have accomplices whom frequently they send to get at those who claim some land, and whisper as a friend, ''tis i can help you with the judge, if you would wish to plead, give me but half, i'll undertake before him you'll succeed.' "the clerks who sit beneath the judge are open-mouthed as he, as if they were half-famished and gaping for a fee; of those who give no money they soon pronounce the state, however early they attend, they shall have long to wait. "if comes some noble lady, in beauty and in pride, with golden horns upon her head, her suit he'll soon decide; but she who has no charms, nor friends, and is for gifts too poor, her business all neglected, she's weeping shown the door. "but worse than all, within the court we some relators meet, who take from either side at once, and both their clients cheat; the ushers, too, to poor men say, 'you labor here in vain, unless you tip us all around, you may go back again.' "the sheriff's hard upon the poor who cannot pay for rest, drags them about to every town, on all assizes press'd compell'd to take the oath prescrib'd without objection made, for if they murmur and can't pay, upon their backs they're laid. "they enter any private house, or abbey that they choose, where meat and drink and all things else are given as their dues; and after dinner jewels too, or this were all in vain, bedels and garçons must receive, and all that form the train. "and next must gallant robes be sent as presents to their wives, or from the manor of the host some one his cattle drives; while he, poor man, is sent to gaol upon some false pretence, and pays at last at double cost, ere he gets free from thence. "i can't but laugh to see their clerks, whom once i knew in need, when to obtain a bailiwick they may at last succeed; with pride in gait and countenance and with their necks erect they lands and houses quickly buy and pleasant rents collect. "grown rich they soon the poor despise, and new-made laws display, oppress their neighbors and become the wise men of their day; unsparing of the least offence, when they can have their will, the hapless country all around with discontent they fill." in the fourteenth century judicial corruption was so general and flagrant, that cries came from every quarter for the punishment of offenders. the knights hospitallers' survey, made in the year , gives us revelations that confound the indiscreet admirers of feudal manners. from that source of information it appears that regular stipends were paid to persons "tam in curia domini regis quam justiciariis, clericis, officiariis et aliis ministris, in diversis curiis suis, ac etiam aliis familaribus magnatum tam pro terris tenementis redditbus et libertatibus hospitalis, quam templariorum, et maxime pro terris templariorum manutenendis." of pensions to the amount of £ mentioned in the account, £ were paid to judges, clerks, and minor officers of courts. robert de sadington, the chief baron, received marks annually; twice a year the knights hospitallers presented caps to one hundred and forty officers of the exchequer; and they expended marks _per annum_ on gifts that were distributed in law courts, "_pro favore habendo_, et pro placitis habendis, et expensis parliamentorum." in that age, and for centuries later, it was customary for wealthy men and great corporations to make valuable presents to the judges and chief servants the king's courts; but it was always presumed that the offerings were simple expressions of respect--not tribute rendered, "pro favore habendo." bent on purifying the moral atmosphere of his courts, edward iii. raised the salaries of his judges, and imposed upon them such oaths that none of their order could pervert justice, or even encourage venal practices, without breaking his solemn vow[ ] to the king's majesty. from the amounts of the _royal_ fees or stipends paid to edward iii.'s judges, it may be vaguely estimated how far they were dependent on gifts and _court_ fees for the means of living with appropriate state. john knyvet, chief justice of the king's bench, has £ and marks per annum. the annual fee of thomas de ingleby, the solitary puisne judge of the king's bench at that time, was at first marks; but he obtained an additional £ when the 'fees' were raised, and he received moreover £ a year as a judge of assize. the chief of the common pleas, robert de thrope, received £ per annum, payable during his tenure of office, and another annual sum of £ payable during his life. john de mowbray, william de wychingham, and william de fyncheden, the other judges of the common pleas, received marks each as official salary, and £ per annum for their services at assizes. mowbray's stipend was subsequently increased by marks, whilst wychingham and fyncheden received an additional £ par annum. to the chief baron and the other two barons of the exchequer annual fees of marks each were paid, the chief baron receiving £ per annum as justice of assize, and one of the puisne barons, almaric de shirland, getting an additional marks for certain special services. the 'issue roll of edward iii., ,' also shows that certain sergeants-at-law acted as justices of assize, receiving for their service £ per annum. throughout his reign edward iii. strenuously exerted himself to purge his law courts of abuses, and to secure his subjects from evils wrought by judicial dishonesty; and though there is reason to think that he prosecuted his reforms, and punished offending judges with more impulsiveness than consistency--with petulance rather than firmness[ ]--his action must have produced many beneficial results. but it does not seem to have occurred to him that the system adopted by his predecessors, and encouraged by the usages of his own time, was the real source of the mischief, and that so long as judges received the greater part of their remuneration from suitors, fees and the donations of the public, enactments and proclamations would be comparatively powerless to preserve the streams of justice from pollution. the fee-system poisoned the morality of the law-courts. from the highest judge to the lowest usher, every person connected with a court of justice was educated to receive small sums of money for trifling services, to be always looking out for paltry dues or gratuities, to multiply occasions for demanding, and reasons for pocketing petty coins, to invent devices for legitimate peculation. in time the system produced such complications of custom, right, privilege, claim, that no one could say definitely how much a suitor was actually bound to pay at each stage of a suit. the fees had an equally bad influence on the public. trained to approach the king's judges with costly presents, to receive them on their visits with lavish hospitality, to send them offerings at the opening of each year, the rich and the poor learnt to look on judicial decisions as things that were bought and sold. in many cases this impression was not erroneous. judges were forbidden to accept gifts from actual suitors, or to take payments _for_ judgments after their delivery; but on the judgment-seat they were often influenced by recollections of the conduct of suitors who _had been_ munificent before the commencement of proceedings, and most probably would be equally munificent six months after delivery of a judgment favorable to their claims. humorous anecdotes heightened the significance of patent facts. throughout a shire it would be told how this suitor won a judgment by a sumptuous feast; how that suitor bought the justice's favor with a flask of rare wine, a horse of excellent breed, a hound of superior sagacity. in the fifteenth century the judge whose probity did not succumb to an excellent dinner was deemed a miracle of virtue. "a lady," writes fuller of chief justice markham, who was dismissed from his place in , "would traverse a suit of law against the will of her husband, who was contented to buy his quiet by giving her her will therein, though otherwise persuaded in his judgment the cause would go against her. this lady, dwelling in the shire town, invited the judge to dinner, and (though thrifty enough herself) treated him with sumptuous entertainment. dinner being done, and the cause being called, the judge gave it against her. and when, in passion, she vowed never to invite the judge again, 'nay, wife,' said he, 'vow never to invite a _just judge_ any more.'" it may be safely affirmed that no english lady of our time ever tried to bribe sir alexander cockburn or sir frederick pollock with a dinner _à la russe_. by his eulogy of chief justice dyer, who died march , , whetstone gives proof that in elizabethan england purity was the exception rather than the rule with judges:-- "and when he spake he was in speeche reposde; his eyes did search the simple suitor's harte; to put by bribes his hands were ever closde, his processe juste, he tooke the poore man's parte. he ruld by lawe and listened not to arte, those foes to truthe--loove, hate, and private gain, which most corrupt, his conscience could not staine." there is no reason to suppose that the custom of giving and receiving presents was more general or extravagant in the time of elizabeth than in previous ages; but the fuller records of her splendid reign give greater prominence to the usage than it obtained in the chronicles of any earlier period of english history. on each new year's day her courtiers gave her costly presents--jewels, ornaments of gold or silver workmanship, hundreds of ounces of silver-gilt plate, tapestry, laces, satin dresses, embroidered petticoats. not only did she accept such costly presents from men of rank and wealth, but she graciously received the donations of tradesmen and menials. francis bacon made her majesty "a poor oblation of a garment;" charles smith, the dustman, threw upon the pile of treasure "two bottes of cambric." the fashion thus countenanced by the queen was followed in all ranks of society; all men, from high to low, receiving presents, as expressions of affection when they came from their equals, as declarations of respect when they came from their social inferiors. each of her great officers of state drew a handsome revenue from such yearly offerings. but though the burdens and abuses of this system were excessive under elizabeth, they increased in enormity and number during the reigns of the stuarts. that the salaries of the elizabethan judges were small in comparison with the sums which they received in presents and fees may be seen from the following table of stipends and allowances annually paid, towards the close of the sixteenth century:-- £ _s._ _d._ the lord cheefe justice of england:-- fee, reward and robes wyne, tunnes at £ the tunne allowance for being justice of assize the lord cheefe justice of the common pleas:-- fee, reward, and robes wyne, two tunnes allowance as justice of assize fee for keeping the assize in the augmentation court each of the three justices in these two courts:-- fee, reward and robes £ _s._ _d._ allowance as justice of assize the lord cheefe baron of the exchequer:-- fee lyvery allowance as justice of the assize each of the three barons:-- fee lyvery a peece allowance as justice of assize prior to and in the earlier part of elizabeth's reign, the sheriffs had been required to provide diet and lodging for judges travelling on circuit, each sheriff being responsible for the proper entertainment of judges within the limits of his jurisdiction. this arrangement was very burdensome upon the class from which the sheriffs were elected, as the official host had not only to furnish suitable lodging and cheer for the justices themselves, but also to supply the wants of their attendants and servants. the ostentatious and costly hospitality which law and public opinion thus compelled or encouraged them to exercise towards circuiteers of all ranks had seriously embarrassed a great number of country gentlemen; and the queen was assailed with entreaties for a reform that should free a sheriff of small estate from the necessity of either ruining himself, or incurring a reputation for stinginess. in consequence of these urgent representations, an order of council, bearing date february , , decided "the justices shall have of her majesty several sums of money out of her coffers for their daily diet." hence rose the usage of 'circuit allowances.' the sheriffs, however, were still bound to attend upon the judges, and make suitable provision for the safe conduct of the legal functionaries from assize town to assize town;--the sheriff of each county being required to furnish a body-guard for the protection of the sovereign's representatives. this responsibility lasted till the other day, when an innovation (of which mr. arcedeckne, of glevering hall, suffolk, was the most notorious, though not the first champion), substituted guards of policemen, paid by county-rates, for bands of javelin-men equipped and rewarded by the sheriffs. in some counties the javelin-men--remote descendants of the mail-clad knights and stalwart men-at-arms who formerly mustered at the summons of sheriffs--still do duty with long wands and fresh rosettes; but they are fast giving way to the wielders of short staves. amongst the bad consequences of the system of gratuities was the color which it gave to idle rumors and malicious slander against the purity of upright judges. when sir thomas more fell, charges of bribery were preferred against him before the privy council. a disappointed suitor, named parnell, declared that the chancellor had been bribed with a gift-cup to decide in favor of his (parnell's) adversary. mistress vaughan, the successful suitor's wife, had given sir thomas the cup with her own hands. the fallen chancellor admitting that "he had received the cup as a new year's gift," lord wiltshire cried, with unseemly exultation, "lo! did i not tell you, my lords, that you would find this matter true?" it seemed that more had pleaded guilty, for his oath did not permit him to receive a new year's gift from an actual suitor. "but, my lords," continued the accused man, with one of his characteristic smiles, "hear the other part of my tale. after having drunk to her of wine, with which my butler had filled the cup, and when she had pledged me, i restored it to her, and would listen to no refusal." it is possible that mistress vaughan did not act with corrupt intention, but merely in ignorance of the rule which forbade the chancellor to accept her present. as much cannot be said in behalf of mrs. croker, who, being opposed in a suit to lord arundel, sought to win sir thomas more's favor by presenting him with a pair of gloves containing forty angels. with a courteous smile he accepted the gloves, but constrained her to take back the gold. the gentleness of this rebuff is charming; but the story does not tell more in favor of sir thomas than to the disgrace of the lady and the moral tone of the society in which she lived. readers should bear in mind the part which new year's gifts and other customary gratuities played in the trumpery charges against lord bacon. adopting an old method of calumny, the conspirators against his fair fame represented that the gifts made to him, in accordance with ancient usage, were bribes. for instance reynel's ring, presented on new year's day, was so construed by the accusers; and in his comment upon the charge, bacon, who had inadvertently accepted the gift during the progress of a suit, observes, "this ring was received certainly _pendente lite_, and though it were at new year's tide, yet it was too great a value for a new year's gift, though, as i take it, nothing near the value mentioned in the articles." so also trevor's gift was a new year's present, of which bacon says, "i confess and declare that i received at new year's tide an hundred pounds from sir john trevor, and because it came as a new year's gift, i neglected to inquire whether the cause was ended or depending; but since i find that though the cause was then dismissed to a trial at law, yet the equity is reserved, so as it was in that kind _pendente lite_." bacon knew that this explanation would be read by men familiar with the history of new year's gifts, and all the circumstances of the ancient usage; and it is needless to say that no man of honor thought the less highly of bacon at that time, because his pure and guiltless acceptance of customary presents was by ingenious and unscrupulous adversaries made to assume an appearance of corrupt compliance. how far the chancellors of the sixteenth and seventeenth centuries depended upon customary gratuities for their revenues may be seen from the facts which show the degree of state which they were required to maintain, and the inadequacy of the ancient fees for the maintenance of that pomp. when elizabeth pressed hatton for payment of the sums which he owed her, the chancellor lamented his inability to liquidate her just claims, and urged in excuse that the _ancient fees_ were very inadequate to the expenses of the chancellor's office. but though elizabethan chancellors could not live upon their ancient fees, they kept up palaces in town and country, fed regiments of lackeys, and surpassed the ancient nobility in the grandeur of their equipages. egerton--the needy and illegitimate son of a rural knight, a lawyer who fought up from the ranks--not only sustained the costly dignities of office, but left to his descendants a landed estate worth £ per annum. bacon's successor in the 'marble chair,' lord keeper williams, assured buckingham that in egerton's time the chancellor's lawful income was less than three thousand per annum. "the lawful revenue of the office stands thus," wrote williams, speaking from his intimate knowledge of ellesmere's affairs, "or not much above it at anytime:--in fines certain, £ per annum, or thereabouts; in fines casual, £ or thereabouts; in greater writs, £ ; for impost of wine, £ --in all, £ ; and these are all the true means of that great office." it is probable that williams under-stated the revenue, but it is certain that the income, apart from gratuities, was insufficient. the chancellor was not more dependent on customary gratuities than the chief of the three common law courts. at westminster and on circuit, whenever he was required to discharge his official functions, the english judge extended his hand for the contributions of the well-disposed. no one thought of blaming judges for their readiness to take customary benevolences. to take gifts was a usage of the profession, and had its parallel in the customs of every calling and rank of life. the clergy took dues in like manner: from the earliest days of feudal life the territorial lords had supplied their wants in the same way; amongst merchants and yeomen, petty traders and servants, the system existed in full force. these presents were made without any secrecy. the aldermen of borough towns openly voted presents to the judges; and the judges received their offerings--not as benefactions, but as legitimate perquisites. in --just a year before lord bacon's fall--the municipal council of lyme regis left it to the "mayor's discretion" to decide "what gratuity he will give to the lord chief baron and his men" at the next assizes. the system, it is needless to say, had disastrous results. empowering the chief judge of every court to receive presents not only from the public, but from subordinate judges, inferior officers, and the bar; and moreover empowering each place-holder to take gratuities from persons officially or by profession concerned in the business of the courts, it produced a complicated machinery for extortion. by presents the chief justices bought their places from the crown or a royal favorite; by presents the puisne justices, registrars, counsel bought place or favor from the chief; by presents the attorneys, sub-registrars, and outside public sought to gain their ends with the humbler place-holders. the meanest ushers of westminster hall took coins from ragged scriveners. hence every place was actually bought and sold, the sum being in most cases very high. sir james ley offered the duke of buckingham £ , for the attorney's place. at the same period the solicitor general's office was sold for £ . under charles i. matters grew still worse than they had been under his father. when sir charles cæsar consulted laud about the worth of the vacant mastership of the rolls, the archbishop frankly said, "that as things then stood, the place was not likely to go without more money than he thought any wise man would give for it." disregarding this intimation, sir charles paid the king £ , for the place, and added a loan of £ . sir thomas richardson, at the opening of the reign, gave £ , for the chiefship of the common pleas. if judges needed gifts before the days when vacant seats were put up to auction, of course they stood all the more in need of them when they bought their promotions with such large sums. it is not wonderful that the wearers of ermine repaid themselves by venal practices. the sale of judicial offices was naturally followed by the sale of judicial decisions. the judges having submitted to the extortions of the king, the public had to endure the extortions of the judges. corruption on the bench produced corruption at the bar. counsel bought the attention and compliance of 'the court,' and in some cases sold their influence with shameless rascality. they would take fees to speak from one side in a cause and fees to be silent from the other side--selling their own clients as coolly as judges sold the suitors of their courts. sympathizing with the public, and stung by personal experience of legal dishonesty, the clergy sometimes denounced from the pulpit the extortions of corrupt judges and unprincipled barristers. the assize sermons of charles i.'s reign were frequently seasoned with such animadversions. at thetford assizes, march, , the rev. mr. ramsay, in the assize-sermon, spoke indignantly of judges who "favored causes," and of "counsellors who took fees to be silent." in the summer of , at the bury assizes, "one mr. scott made a sore sermon in discovery of corruption in judges and others." at norwich, the same authority, viz., 'sir john rous's diary,' informs us--"mr. greene was more plaine, insomuch that judge harvey, in his charge, broke out thus: 'it seems by the sermon that we are corrupt, but we know that we can use conscience in our places as well as the best clergieman of all.'" in his 'life and death of sir matthew hale,' bishop burnet tells a good story of the chief's conduct with regard to a customary gift. "it is also a custom," says the biographer, "for the marshall of the king's bench to present the judges of that court with a piece of plate for a new year's gift, that for the chief justice being larger than the rest. this he intended to have refused, but the other judges told him it belonged to his office, and the refusing it would be a prejudice to his successors; so he was persuaded to take it, but he sent word to the marshall, that instead of plate he should bring him the value of it in money, and when he received it, he immediately sent it to the prisons for the relief and discharge of the poor there." [ ] a portion of the oath prescribed for judges in the 'ordinances for justices,' edward iii., will show the reader the evils which called for correction and the care taken to effect their cure. "ye shall swear," ran the injunction to which each judge was required to vow obedience, "that well and lawfully ye shall serve our lord the king and his people in the office of justice; ... and that ye take not by yourself or by other, privily or apertly, gift or reward of gold or silver, nor any other thing which may turn to your profit, unless it be meat nor drink, and that of small value, _of any man that shall have plea or process before you, as long as the same process shall be so hanging, nor after for the same cause: and that ye shall take no fee as long as ye shall be justice, nor robes of any man, great or small_, but of the king himself: and that ye give none advice or counsel to no man, great or small, in any case where the king is party; &c. &c. &c." the clause forbidding the judge to receive gifts of actual suitors was a positive recognition of his right to customary gifts rendered by persons who had no process hanging before him. it should, moreover, be observed that in the passage, "ye shall take no fee as long as ye shall be justice, nor robes of any man," the word "fee" signifies "salary," and not a single payment or gratuity. the judge was forbidden to receive from any man a fixed stipend (by the acceptance of which he would become the donor's servant), or robes (the assumption of which would be open declaration of service); but he was at liberty to accept the offerings which the public were wont to make to men of his condition, as well as the sums (or 'fees,' as they would be termed at the present day) due on different processes of his court. that the word 'fee' is thus used in the ordinance may be seen from the words "for this cause we have increased the fees (les feez) of the same our justices, in such manner as it ought reasonably to suffice them," by which language attention is drawn to the increase of judicial salaries. [ ] mr. foss observes: "in , william de thrope, chief justice of the king's bench, was convicted on his own confession of receiving bribes to stay justice; but though his property was forfeited to the crown on his condemnation, the king appears to have relented, and to have made him second baron of the exchequer in may, , unless i am mistaken in supposing the latter to have been the same person." chapter xv. gifts and sales. by degrees the public ceased to make presents to the principal judges of the kingdom; but long after the chancellor and the three chiefs had taken the last offerings of general society, they continued to receive yearly presents from the subordinate judges, placemen, and barristers of their respective courts. lord cowper deserves honor for being the holder of the seals who, by refusing to pocket these customary donations, put an end to a very objectionable system, so far as the court of chancery was concerned. on being made lord keeper, he resolved to depart from the custom of his predecessors for many generations, who on the first day of each new year had invariably entertained at breakfast the persons from whom tribute was looked for. very droll were these receptions in the old time. the repast at an end, the guests forthwith disburdened themselves of their gold--the payers approaching the holder of the seals in order of rank, and laying on his table purses of money, which the noble payee accepted with his own hands. sometimes his lordship was embarrassed by a ceremony that required him to pick gold from the fingers of men, several of whom he knew to be in indigent circumstances. in charles ii.'s time it was observed that the silver-tongued lord nottingham on such occasions always endeavored to hide his confusion under a succession of nervous smiles and exclamations--"oh, tyrant cuthtom!--oh, tyrant cuthtom!" it is noteworthy that in relinquishing the benefit of these exactions, the lord keeper feared unfriendly criticism much more than he anticipated public commendation. in his diary, under date december , cowper wrote:--"i acquainted my lord treasurer with my design to refuse new year's gifts, if he had no objection against it, as spoiling, in some measure, a place of which he had the conferring. he answered it was not expected of me, but that i might do as my predecessors had done; but if i refused, he thought nobody could blame me for it." anxious about the consequences of his innovation, the new lord keeper gave notice that on january , - , he would receive no gifts; but notwithstanding this proclamation, several officers of chancery and counsellors came to his house with tribute, and were refused admittance. "new year's gifts turned back," he wrote in his diary at the close of the eventful day, "and pray god it doth me more credit and good than hurt, by making secret enemies _in fæce romuli_." his fears were in a slight degree fulfilled. the chiefs of the three common law courts were greatly displeased with an innovation which they had no wish to adopt; and their warm expressions of dissatisfaction induced the lord keeper to cover his disinterestedness with a harmless fiction. to pacify the indignant chiefs and the many persons who sympathized with them, he pretended that though he had declined intentionally the gifts of the chancery barristers, he had not designed to exercise the same self-denial with regard to the gifts of chancery officers.[ ] the common law chiefs were slow to follow in the lord keeper's steps, and many years passed before the reform, effected in chancery by accident or design, or by a lucky combination of both, was adopted in the other great courts. in his memoir of lord cowper, campbell observes: "his example with respect to new year's gifts was not speedily followed; and it is said that till very recently the chief justice of the common pleas invited the officers of his court to a dinner at the beginning of the year, when each of them deposited under his plate a present in the shape of a bank of england note, instead of a gift of oxen roaring at his levee, as in ruder times." there is no need to remind the reader in this place of the many veracious and the many apocryphal stories concerning the basket justices of fielding's time--stories showing that in law courts of the lowest sort applicants for justice were accustomed to fee the judges with victuals and drink until a comparatively recent date. lucky would it have been for the first earl of macclesfield if the custom of selling places in chancery had been put an end to forever by the lord keeper who abolished the custom of new year's gifts; but the judge who at the sacrifice of one-fourth of his official income swept away the pernicious usage which had from time immemorial marked the opening of each year, saw no reason why he should purge chancery of another scarcely less objectionable practice. following the steps of their predecessors, the chancellors cowper, harcourt, and macclesfield sold subordinate offices in their court; and whereas all previous chancellors had been held blameless for so doing, lord macclesfield was punished with official degradation, fine, imprisonment, and obloquy. by birth as humble[ ] as any layman who before or since his time has held the seals, thomas parker raised himself to the woolsack by great talents and honorable industry. as an advocate he won the respect of society and his profession; as a judge he ranks with the first expositors of english law. although for imputed corruption he was hurled with ignominy from his high place, no one has ventured to charge him with venality on the bench. that he was a spotless character, or that his career was marked by grandeur of purpose, it would be difficult to establish; but few englishmen could at the present time be found to deny that he was in the main an upright peer, who was not wittingly neglectful of his duty to the country which had loaded him with wealth and honors. amongst the many persons ruined by the bursting of the south sea bubble were certain masters of chancery, who had thrown away on that wild speculation large sums of which they were the official guardians. lord macclesfield was one of the victims on whom the nation wreaked its wrath at a crisis when universal folly had produced universal disaster. to punish the masters for their delinquencies was not enough; greater sacrifices than a few comparatively obscure placemen were demanded by the suitors and wards whose money had been squandered by the fraudulent trustees. the lord chancellor should be made responsible for the chancery defalcations. that was the will of the country. no one pretended that lord macclesfield had originated the practice which permitted masters in chancery to speculate with funds placed under their care; attorneys and merchants were well aware that in the days of harcourt, cowper, wright, and somers, it had been usual for masters to pocket interest accruing from suitors' money; notorious also was it that, though the chancellor was theoretically the trustee of the money confided to his court, the masters were its actual custodians. had the chancellor known that the masters were trafficking in dangerous investments to the probable loss of the public, duty would have required him to examine their accounts and place all trust-moneys beyond their reach; but until the crash came, lord macclesfield knew neither the actual worthlessness of the south sea stock, nor the embarrassed circumstances of the defaulting masters, nor the peril of the persons committed to his care. the system which permitted the masters to speculate with money not their own was execrable, but the lord chancellor was not the parent of that system. infuriated by the national calamity, in which they were themselves great sufferers, the commons impeached the chancellor, charging him with high crimes and misdemeanors, of which the peers unanimously declared him guilty. in this famous trial the great fact established against his lordship was that he had sold masterships to the defaulters. it appeared that he had not only sold the places, but had stood out for very high prices; the inference being, that in consideration of these large sums he had left the purchasers without the supervision usually exercised by chancellors over such officers, and had connived at the practices which had been followed by ruinous results. to this it was replied, that if the chancellor had sold the places at higher prices than his predecessors, he had done so because the places had become much more valuable; that at the worst he had but sold them to the highest bidder, after the example of his precursors; that the inference was not supported by any direct testimony. very humorous was some of the evidence by which the sale of the masterships was proved. master elde deposed that he bought his office for guineas, the bargain being finally settled and fulfilled after a personal interview with the accused lord. master thurston, another purchaser at the high rate of guineas, paid his money to lady macclesfield. it must be owned that these sums were very large, but their magnitude does not fix fraudulent purpose upon the chancellor. that he believed himself fairly entitled to a moderate present on appointing to a mastership is certain; that he regarded £ as the gratuity which he might accept, without blushing at its publication, may be inferred from the restitution of £ which he made to one of the purchasers for £ at a time when he anticipated an inquiry into his conduct; that he felt himself acting indiscreetly if not wrongfully in pressing for such large sums is testified by the caution with which he conferred with the purchasers and the secrecy with which he accepted their money. his defence before the peers admitted the sales of the places, but maintained that the transactions were legitimate. the defence was of no avail. when the question of guilty or not guilty was put to the peers, each of the noble lords present answered, "guilty, upon my honor." sentenced to pay a fine of £ , , and undergo imprisonment until the mulct was paid, the unfortunate statesman bitterly repented the imprudence which had exposed him to the vengeance of political adversaries and to the enmity of the vulgar. whilst the passions roused by the prosecution were at their height, the fallen chancellor was treated with much harshness by parliament, and with actual brutality by the mob. ever ready to vilify lawyers, the rabble seized on so favorable an occasion for giving expression to one of their strongest prejudices. amongst the crowds who followed the earl to the tower with curses, voices were heard to exclaim that "staffordshire had produced the three greatest scoundrels of england--jack sheppard, jonathan wilde, and tom parker." jonathan wilde was executed in --the year of lord macclesfield's impeachment; and jack sheppard died on the gallows at tyburn, november , . throughout the inquiry, and after the adverse verdict, george i. persisted in showing favor to the disgraced chancellor; and when the violent emotions of the crisis had passed away it was generally admitted by enlightened critics of public events that lord macclesfield had been unfairly treated. the scape-goat of popular wrath, he suffered less for his own faults, than for the evil results of a bad system; and at the present time--when the silence of more than a hundred and thirty years rests upon his tomb--englishmen, with one voice, acknowledge the valuable qualities that raised him to eminence, and regret the proceedings which consigned him in his old age to humiliation and gloom. [ ] it should be observed that many persons are of opinion that the lord keeper's assertion on this point was not an artifice, but a simple statement of fact. to those who take this view, his lordship's position seems alike ridiculous and respectable--respectable because he actually intended to forbear from taking the barrister's money; ridiculous because, through clumsy and inadequate arrangements, he missed the other and not less precious gifts which he did not mean to decline. anyhow, the critics admit that credit is due to him for persisting in a change--wrought in the first instance partly by honorable design and partly by accident. [ ] the cases of john scott, philip yorke, and edward sugden are before the mind of the present writer, when he pens the sentence to which this note refers. the social extraction of the english bar will be considered in a later chapter of this work. chapter xvi. a rod pickled by william cole. "a proneness to take bribes may be generated from the habit of taking fees," said lord keeper williams in his inaugural address, making an ungenerous allusion to francis bacon, whilst he uttered a statement which was no calumny upon king james's bench and bar, though it is signally inapplicable to lawyers of the present day. of williams, tradition preserves a story that illustrates the prevalence of judicial corruption in the seventeenth century, and the jealousy with which that right reverend lord keeper watched for attempts to tamper with his honesty. whilst he was taking exercise in the great park of nonsuch house, his attention was caught by a church recently erected at the cost of a rich chancery suitor. having expressed satisfaction with the church, williams inquired of george minors, "has he not a suit depending in chancery?" and on receiving an answer in the affirmative, observed, "he shall not fare the worse for building of churches." these words being reported to the pious suitor, he not illogically argued that the keeper was a judge likely to be influenced in making his decisions by matters distinct from the legal merits of the case put before him. acting on this impression, the good man forthwith sent messengers to nonsuch house, bearing gifts of fruits and poultry to the holder of the seals. "nay, carry them back," cried the judge, looking with a grim smile from the presents to george minors; "nay, carry them back, george, and tell your friend that he shall not fare the better for sending of presents." rich in satire directed against law and its professors, the literature of the commonwealth affords conclusive testimony of the low esteem in which lawyers were held in the seventeenth century by the populace, and shows how universal was the belief that wearers of ermine and gentlemen of the long robe would practice any sort of fraud or extortion for the sake of personal advantage. in the pamphlets and broadsides, in the squibs and ballads of the period, may be found a wealth of quaint narrative and broad invective, setting forth the rascality of judges and attorneys, barristers and scriveners. any literary effort to throw contempt upon the law was sure of success. the light jesters, who made merry with the phraseology and costumes of westminster hall, were only a few degrees less welcome than the stronger and more indignant scribes who cried aloud against the sins and sinners of the courts. when simple folk had expended their rage in denunciations of venal eloquence and unjust judgments, they amused themselves with laughing at the antiquated verbiage of the rascals who sought to conceal their bad morality under worse latin. 'a new modell, or the conversion of the infidell terms of the law: for the better promoting of misunderstanding according to common sense,' is a publication consisting of a cover or fly-leaf and two leaves, that appeared about a year before the restoration. the wit is not brilliant; its humor is not free from uncleanness; but its comic renderings[ ] of a hundred law terms illustrate the humor of the times. more serious in aim, but not less comical in result, is william cole's 'a rod for the lawyers. london, printed in the year .' the preface of this mad treatise ends thus--"i do not altogether despair but that before i dye i may see the inns of courts, or dens of thieves, converted into hospitals, which were a rare piece of justice; that as they formerly have immured those that robbed the poor of houses, so they may at last preserve the poor themselves." another book touching on the same subject and belonging to the same period, is, 'sagrir, or doomsday drawing nigh; with thunder and lightning to lawyers, ( ) by john rogers.' violent, even for a man holding fifth-monarchy views, john rogers prefers a lengthy indictment against lawyers, for whose delinquencies and heinous offence he admits neither apology nor palliation. in his opinion all judges deserve the death of arnold and hall, whose last moments were provided for by the hangman. the wearers of the long robe are perjurers, thieves, enemies of mankind; their institutions are hateful, and their usages abominable. in olden time they were less powerful and rapacious. but prosperity soon exaggerated all their evil qualities. sketching the rise of the profession, the author observes--"these men would get sometimes parents, friends, brothers, neighbors, sometimes _others_ to be (in their absence) agents, factors, or solicitors for them at westminster, and as yet they had no stately houses or mansions to live in, as they have now (called inns of court), but they lodged like countrymen or strangers in ordinary inns. but afterwards, when the interests of lawyers began to look big (as in edward iii.'s days), they got mansions or colleges, which they called inns, and by the king's favor had an addition of honor, whence they were called inns of court."[ ] the familiar anecdotes which are told as illustrations of chief justice hale's integrity are very ridiculous, but they serve to show that the judges of his time were believed to be very accessible to corrupt influences. during his tenure of the chiefship of the exchequer, hale rode the western circuit, and met with the loyal reception usually accorded to judges on circuit in his day. amongst other attentions offered to the judges on this occasion was a present of venison from a wealthy gentleman who was concerned in a cause that was in due course called for hearing. no sooner was the call made than chief baron hale resolved to place his reputation for judicial honesty above suspicion, and the following scene occurred:-- "_lord chief baron._--'is this plaintiff the gentleman of the same name who hath sent me the venison?' _judge's servant._--'yes, please you, my lord.' _lord chief baron._--'stop a bit, then. do not yet swear the jury. i cannot allow the trial to go on till i have paid him for his buck!' _plaintiff._--'i would have your lordship to know that neither myself nor my forefathers have ever sold venison, and i have done nothing to your lordship which we have not done to every judge that has come this circuit for centuries bygone.' _magistrate of the county._--'my lord, i can confirm what the gentleman says for truth, for twenty years back.' _other magistrates._--'and we, my lord, know the same.' _lord chief baron._--'that is nothing to me. the holy scripture says, 'a gift perverteth the ways of judgment.' i will not suffer the trial to go on till the venison is paid for. let my butler count down the full value thereof.' _plaintiff._--'i will not disgrace myself and my ancestors by becoming a venison butcher. from the needless dread of _selling_ justice, your lordship _delays_ it. i withdraw my record.'" as far as good taste and dignity were concerned, the gentleman of the west country was the victor in this absurd contest: on the other hand, hale had the venison for nothing, and was relieved of the trouble of hearing the cause. in the same manner hale insisted on paying for six loaves of sugar which the dean and chapter of salisbury sent to his lodgings, in accordance with ancient usage. similar cases of the judge's readiness to construe courtesies as bribes may be found in notices of trials and books of _ana_. _a propos_ of these stories of hale's squeamishness, lord campbell tells the following good anecdote of baron graham: "the late baron graham related to me the following anecdote to show that he had more firmness than judge hale:--'there was a baronet of ancient family with whom the judges going the western circuit had always been accustomed to dine. when i went that circuit i heard that a cause, in which he was plaintiff, was coming on for trial: but the usual invitation was received, and lest the people might suppose that judges could be influenced by a dinner; i accepted it. the defendant, a neighboring squire, being dreadfully alarmed by this intelligence, said to himself, 'well, if sir john entertains the judge hospitably, i do not see why i should not do the same by the jury.' so he invited to dinner the whole of the special jury summoned to try the cause. thereupon the baronet's courage failed him, and he withdrew the record, so that the cause was not tried; and although i had my dinner, i escaped all suspicion of partiality." this story puts the present writer in mind of another story which he has heard told in various ways, the wit of it being attributed by different narrators to two judges who have left the bench for another world, and a master of chancery who is still alive. on the present occasion the master of chancery shall figure as the humorist of the anecdote. less than twenty years since, in one of england's southern counties, two neighboring landed proprietors differed concerning their respective rights over some unenclosed land, and also about certain rights of fishing in an adjacent stream. the one proprietor was the richest baronet, the other the poorest squire of the county; and they agreed to settle their dispute by arbitration. our master in chancery, slightly known to both gentlemen, was invited to act as arbitrator after inspecting the localities in dispute. the invitation was accepted and the master visited the scene of disagreement, on the understanding that he should give up two days to the matter. it was arranged that on the first day he should walk over the squire's estate, and hear the squire's uncontradicted version of the case, dining at the close of the day with both contendents at the squire's table; and that on the second day, having walked over the baronet's estate, and heard without interruption the other side of the story, he should give his award, sitting over wine after dinner at the rich man's table. at the close of the first day the squire entertained his wealthy neighbor and the arbitrator at dinner. in accordance with the host's means, the dinner was modest but sufficient. it consisted of three fried soles, a roast leg of mutton, and vegetables; three pancakes, three pieces of cheese, three small loaves of bread, ale, and a bottle of sherry. on the removal of the viands, three magnificent apples, together with a magnum of port, were placed on the table by way of dessert. at the close of the second day the trio dined at the baronet's table, when it appeared that, struck by the simplicity of the previous day's dinner, and rightly attributing the absence of luxuries to the narrowness of the host's purse, the wealthy disputant had resolved not to attempt to influence the umpire by giving him a superior repast. sitting at another table the trio dined on exactly the same fare,--three fried soles, a roast leg of mutton, and vegetables; three pancakes, three pieces of cheese, three small loaves of bread, ale, and a bottle of sherry; and for dessert three magnificent apples, together with a magnum of port. the dinner being over, the apples devoured, and the last glass of port drunk, the arbitrator (his eyes twinkling brightly as he spoke) introduced his award with the following exordium:--"gentlemen, i have with all proper attention considered your _sole_ reasons: i have taken due notice of your _joint_ reasons, and i have come to the conclusion that your _des(s)erts_ are about equal." [ ] of these renderings the subjoined may be taken as favorable specimens:--"breve originale, original sinne; capias, a catch to a sad tune; alias capias, another to the same (sad tune); habeas corpus, a trooper; capias ad satisfaciend., a hangman: latitat, bo-peep; nisi prius, first come first served; demurrer, hum and haw; scandal. magnat., down with the lords." [ ] even vacations stink in the nostrils of mr. rogers; for he maintains that they are not so much periods when lawyers cease from their odious practices, as times of repose and recreation wherein they gain fresh vigor and daring for the commission of further outrages, and allow their unhappy victims to acquire just enough wealth to render them worth the trouble of despoiling. chapter xvii. chief justice popham. one of the strangest cases of corruption amongst english judges still remains to be told on the slender authority which is the sole foundation of the weighty accusation. in comparatively recent times there have not been many eminent englishmen to whom 'tradition's simple tongue' has been more hostile than queen elizabeth's lord chief justice, popham. the younger son of a gentle family, john popham passed from oxford to the middle temple, raised himself to the honors of the ermine, secured the admiration of illustrious contemporaries, in his latter years gained abundant praise for wholesome severity towards footpads, and at his death left behind him a name--which, tradition informs us, belonged to a man who in his reckless youth, and even after his call to the bar, was a cut-purse and highwayman. in mitigation of his conduct it is urged by those who credit the charge, that young gentlemen of his date were so much addicted to the lawless excitement of the road, that when he was still a beardless stripling, an act ( ed. vi. c. , s. ) was passed, whereby any peer of the realm or lord of parliament, on a first conviction for robbery, was entitled to benefit of clergy, though he could not read. but bearing in mind the liberties which rumor is wont to take with the names of eminent persons, the readiness the multitude always display to attribute light morals to grave men, and the infrequency of the cases where a dissolute youth is the prelude to a manhood of strenuous industry and an old age of honor--the cautious reader will require conclusive testimony before he accepts popham's connection with 'the road' as one of the unassailable facts of history. the authority for this grave charge against a famous judge is john aubrey, the antiquary, who was born in , just twenty years after popham's death. "for severall yeares," this collector says of the chief justice, "he addicted himself but little to the studie of the lawes, but profligate company, and was wont to take a purse with them. his wife considered her and his condition, and at last prevailed with him to lead another life and to stick to the studie of the lawe, which, upon her importunity, he did, being then about thirtie yours old." as popham was born in , he withdrew, according to this account, from the company of gentle highwaymen about the year --more than sixty years before aubrey's birth, and more than a hundred years before the collector committed the scandalous story to writing. the worth of such testimony is not great. good stories are often fixed upon eminent men who had no part in the transactions thereby attributed to them. if this writer were to put into a private note-book a pleasant but unauthorized anecdote imputing _kleptomania_ to chief justice wiles (who died in ), and fifty years hence the note-book should be discovered in a dirty corner of a forgotten closet and published to the world--would readers in the twentieth century be justified in holding that sir john willes was an eccentric thief? but aubrey tells a still stranger story concerning popham, when he sets forth the means by which the judge made himself lord of littlecote hall in wiltshire. the case must be given in the narrator's own words. "sir richard dayrell of littlecot in com. wilts. having got his lady's waiting-woman with child, when her travell came sent a servant with a horse for a midwife, whom he was to bring hoodwinked. she was brought, and layd the woman; but as soon as the child was born, she saw the knight take the child and murther it, and burn it in the fire in the chamber. she having done her business was extraordinarily rewarded for her paines, and went blindfold away. this horrid action did much run in her mind, and she had a desire to discover it, but knew not where 'twas. she considered with herself the time she was riding, and how many miles she might have rode at that rate in that time, and that it must be some great person's house, for the roome was twelve foot high: and she should know the chamber if she sawe it. she went to a justice of peace, and search was made. the very chamber found. the knight was brought to his tryall; and, to be short, this judge had this noble house, park, and manor, and (i think) more, for a bribe to save his life. sir john popham gave sentence according to lawe, but being a great person and a favorite, he procured a _nolle prosequi_." this ghastly tale of crime following upon crime has been reproduced by later writers with various exaggerations and modifications. dramas and novels have been founded upon it; and a volume might be made of the ballads and songs to which it has given birth. in some versions the corrupt judge does not even go through the form of passing sentence, but secures an acquittal from the jury; according to one account, the mother, instead of the infant, was put to death; according to another, the erring woman was the murderer's daughter, instead of his wife's waiting-woman; another writer, assuming credit as a conscientious narrator of facts, places the crime in the eighteenth instead of the sixteenth century, and transforms the venal judge into a clever barrister. in a highly seasoned statement of the repulsive tradition communicated by lord webb seymour to walter scott, the murder is described with hideous minuteness. changing the midwife into 'a friar of orders grey,' and murdering the mother instead of the baby, sir walter scott revived the story in one of his most popular ballads. but of all the versions of the tradition that have come under this writer's notice, the one that departs most widely from aubrey's statement is given in mr. g.l. rede's 'anecdotes and biography,' ( ). chapter xviii. judicial salaries. for the last three hundred years the law has been a lucrative profession, our great judges during that period having in many instances left behind them large fortunes, earned at the bar or acquired from official emoluments. the rental of egerton's landed estates was £ , per annum--a royal income in the days of elizabeth and james. maynard left great wealth to his grand-daughters, lady hobart and mary countess of stamford. lord mansfield's favorite investment was mortgage; and towards the close of his life the income which he derived for moneys lent on sound mortgages was £ , per annum. when lord kenyon had lost his eldest son, he observed to mr. justice allan park--"how delighted george would be to take his poor brother from the earth and restore him to life, although he receives £ , by his decease." lord eldon is said to have left to his descendants £ , ; and his brother, lord stowell, to whom we are indebted for the phrase 'the elegant simplicity of the three per cents.,' also acquired property that at the time of his death yielded £ , per annum. lord stowell's personalty was sworn under £ , , and he had invested considerable sums in land. it is noteworthy that this rich lawyer did not learn to be contented with the moderate interest of the three per cents. until he had sustained losses from bad speculations. notable also is it that this rich lawyer--whose notorious satisfaction with three per cent. interest has gained for him a reputation of noble indifference to gain--was inordinately fond of money. these great fortunes were raised from fees taken in practice at the bar, from judicial salaries or pensions, and from other official gains--such as court dues, perquisites, sinecures, and allowances. since the revolution of these last named irregular or fluctuating sources of judicial income have steadily diminished, and in the present day have come to an end. eldon's receipts during his tenure of the seals cannot be definitely stated, but more is known about them and his earnings at the bar than he intended the world to discover, when he declared in parliament "that in no one year, since he had been made lord chancellor, had he received the same amount of profit which he enjoyed while at the bar." whilst he was attorney general he earned something more than £ , a year; and in returns which he himself made to the house of commons, he admits that in he received, as lord chancellor, a gross income of £ , , from which sum, after deduction of all expenses, there remained a net income of £ , per annum. he was enabled also to enrich the members of his family with presentations to offices, and reversions of places. until comparatively recent times, judges were dangerously dependent on the king's favor; for they not only held their offices during the pleasure of the crown, but on dismissal they could not claim a retiring pension. in the seventeenth century, an aged judge, worn out by toil and length of days, was deemed a notable instance of royal generosity, if he obtained a small allowance on relinquishing his place in court. chief justice hale, on his retirement, was signally favored when charles ii. graciously promised to continue his salary till the end of his life--which was manifestly near its close. under the stuarts, the judges who lost their places for courageous fidelity to law, were wont to resume practice at the bar. to provide against the consequences of ejection from office, great lawyers, before they consented to exchange the gains of advocacy for the uncertain advantages of the woolsack, used to stipulate for special allowance--over and above the ancient emoluments of place. lord nottingham had an allowance of £ per annum; and lord guildford, after a struggle for better times, was constrained, at a cost of mental serenity, to accept the seals, with a special salary of half that sum.[ ] from down to the present time, the chronicler of changes in the legal profession, has to notice a succession of alterations in the system and scale of judicial payments--all of the innovations having a tendency to raise the dignity of the bench. under william and mary, an allowance (still continued), was made to holders of the seal on their appointment, for the cost of outfit and equipages. the amount of this special aid was £ , but fees reduced it to £ _s._ mr. foss observes--"the earliest existing record of this allowance, is dated june , , when sir nathan wright was made lord keeper, which states it to be the same sum as had been allowed to his predecessor." at the same period, the salary of a puisne judge was but £ a year--a sum that would have been altogether insufficient for his expenses. a considerable part of a puisne's remuneration consisted of fees, perquisites, and presents. amongst the customary presents to judges at this time, may be mentioned the _white gloves_, which men convicted of manslaughter, presented to the judges when they pleaded the king's pardon; the _sugar loaves_, which the warden of the fleet annually sent to the judges of the common pleas; and the almanacs yearly distributed amongst the occupants of the bench by the stationers' company. from one of these almanacs, in which judge rokeby kept his accounts, it appears that in the year , the casual profits of his place amounted to £ , _s._ _d._ here is the list of his official incomes, (net) for ten years:--in , £ , _s._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._; in , £ , _s._ _d._ the fluctuation of the amounts in this list, is worthy of observation; as it points to one bad consequence of the system of paying judges by fees, gratuities, and uncertain perquisites. a needy judge, whose income in lucky years was over two thousand pounds, must have been sadly pinched in years when he did not receive fifteen hundred. under the heading, "the charges of my coming into my judge's place, and the taxes upon it the first yeare and halfe," judge rokeby gives the following particulars: " , may . to mr. milton, deputy clerk of the crown, as per note, for the patent and swearing privately, £ , _s._ _d._ may . to mr. english, charges of the patent at the secretary of state's office, as per note, said to be a new fee, £ , _s._ inrolling the patent in exchequer and treasury, £ , _s._ _d._ ju. . wine given as a judge, as per vintner's note, £ , _s._ ju. . cakes, given as a judge, as per vintner's note, £ , _s._ _d._ second-hand judge's robes, with some new lining, £ . charges for my part of the patent for our salarys, to aaron smith, £ , _s._, and the dormant warrant £ .--£ , _s._--£ , _s._ _d._ "taxes, £ . "the charges of my being made a serjeant-at-law, and of removing myselfe and family to london, and a new coach and paire of horses, and of my knighthood (all which were within the first halfe year of my coming from york), upon the best calculation i can make of them, were att least £ ." concerning the expenses attendant on his removal from the common pleas to the king's bench in --a removal which had an injurious result upon his income--the judge records: nov. . to mr. partridge, the crier of king's bench, claimed by him as a fee due to the criers, £ . nov. . to mr. ralph hall, in full of the clerk of the crown's bill for my patent, and swearing at the lord keeper's, and passing it through the offices, £ , _s._ _d._ dec. . to mr. carpenter, the vintner, for wine and bottles, £ , _s._ _d._ to gwin, the confectioner, for cakes, £ , _s._ _d._ to mr. mand (his clerk), which he paid att the treasury, and att the pell for my patent, allowed there, £ , _s._ tot. £ , _s._ _d._ the charges for wine and cakes were consequences of a custom which required a new judge to send biscuits and macaroons, sack and claret, to his brethren of the bench. in the reign of george i. the salaries of the common law judges were raised--the pensions of the chiefs being doubled, and the _puisnes_ receiving fifteen hundred instead of a thousand pounds. cowper's incomes during his tenure of the seals varied between something over seven and something under nine thousand per annum: but there is some reason to believe that on accepting office, he stipulated for a handsome yearly salary, in case he should be called upon to relinquish the place. evelyn, not a very reliable authority, but still a chronicler worthy of notice even on questions of fact, says:--"oct. . mr. cowper made lord keeper. observing how uncertain greate officers are of continuing long in their places, he would not accept it unless £ , a yeare were given him in reversion when he was put out, in consideration of his loss of practice. his predecessors, how little time soever they had the seal, usually got £ , , and made themselves barons." it is doubtful whether this bargain was actually made; but long after cowper's time, lawyers about to mount the woolsack, insisted on having terms that should compensate them for loss of practice. lord macclesfield had a special salary of £ per annum, during his occupancy of the marble chair, and obtained a grant of £ , from the king;--a tellership in the exchequer being also bestowed upon his eldest son. lord king obtained even better terms--a salary of £ per annum from the post office, and £ from the hanaper office; this large income being granted to him in consideration of the injury done to the chancellor's emoluments by the proceedings against lord macclesfield--whereby it was declared illegal for chancellors to sell the subordinate offices in the court of chancery. this arrangement--giving the chancellor an increased salary in _lieu_ of the sums which he could no longer raise by sales of offices--is conclusive testimony that in the opinion of the crown lord macclesfield had a right to sell the masterships. the terms made by lord northington, in , on resigning the seals and becoming president of the council, illustrate this custom. on quitting the marble chair, he obtained an immediate pension of £ per annum; and an agreement that the annual payment should be made £ per annum, as soon as he retired from the presidency: he also obtained a reversionary grant for two lives of the lucrative office of clerk of the hanaper in chancery. in lord chancellor king's time, amongst the fees and perquisites which he wished to regulate and reform were the supplies of stationery, provided by the country for the great law-officers. it may be supposed that the sum thus expended on paper, pens, and wax was an insignificant item in the national expenditure; but such was not the case--for the chief of the courts were accustomed to place their personal friends on the free-list for articles of stationery. the archbishop of dublin, a dignitary well able to pay for his own writing materials, wrote to lord king, april , : "my lord,--ever since i had the honor of being acquainted with lord chancellors, i have lived in england and ireland upon chancery paper, pens, and wax. i am not willing to lose an old advantageous custom. if your lordship hath any to spare me by my servant, you will oblige your very humble servant, "john dublin." so long as judges or subordinate officers were paid by casual perquisites and fees, paid directly to them by suitors, a taint of corruption lingered in the practice of our courts. long after judges ceased to sell injustice, they delayed justice from interested motives, and when questions concerning their perquisites were raised, they would sometimes strain a point, for the sake of their own private advantage. even lord ellenborough, whose fame is bright amongst the reputations of honorable men, could not always exercise self-control when attempts were made to lessen his customary profits, "i never," writes lord campbell, "saw this feeling at all manifest itself in lord ellenborough except once, when a question arose whether money paid into court was liable to poundage. i was counsel in the case, and threw him into a furious passion, by strenuously resisting the demand; the poundage was to go into his own pocket--being payable to the chief clerk--an office held in trust for him. if he was in any degree influenced by this consideration, i make no doubt that he was wholly unconscious of it." george iii.'s reign witnessed the introduction of changes long required, and frequently demanded in the mode and amounts of judicial payments. in , puisne judges and barons received an additional £ per annum, and the chief baron an increase of £ a year. twenty years later, stat. , geo. iii., c. , gave the master of the rolls, £ a year, the lord chief baron £ a year, and each of the puisne judges and barons, £ per annum. by the same act also, life-pensions of £ per annum were secured to retiring holders of the seal, and it was provided that after fifteen years of service, or in case of incurable infirmity, the chief justice of the king's bench could claim, on retirement, £ per annum, the master of the rolls, chief of common pleas, and chief baron £ per annum, and each minor judge of those courts or baron of the coif, £ a year. in , ( geo. iii., c. ) the lord chief baron's annual salary was raised to £ ; whilst a yearly stipend of £ was assigned to each puisne judge or baron. by geo. iii., c. , the chiefs and master of the rolls, received on retirement an additional yearly £ , and the puisnes an additional yearly £ . a still more important reform of george iii.'s reign was the creation of the first vice chancellor in march, . rank was assigned to the new functionary next after the master of the rolls, and his salary was fixed at £ per annum. until the reign of george iv. judges continued to take fees and perquisites; but by geo. iv. c. , , , it was arranged that the fees should be paid into the exchequer, and that the undernamed great officers of justice should receive the following salaries and pensions on retirement:-- an. pension an. sal. on retirement. lord chief justice of king's bench £ , £ lord chief justice of common pleas the master of the rolls the vice chancellor of england the chief baron of the exchequer each puisne baron or judge moreover by this act, the second judge of the king's bench was entitled, as in the preceding reign, to £ for giving charge to the grand jury in each term, and pronouncing judgment on malefactors. the changes with regard to judicial salaries under william iv. were comparatively unimportant. by and will. iv. c. , the salaries of puisne judges and barons were reduced to £ a year; and by and will. iv. c. , the chancellor's pension, on retirement, was raised to £ , the additional £ per annum being assigned to him in compensation of loss of patronage occasioned by the abolition of certain offices. these were the most noticeable of william's provisions with regard to the payment of his judges. the present reign, which has generously given the country two new judges, called lord justices, two additional vice chancellors, and a swarm of paid justices, in the shape of county court judges and stipendiary magistrates, has exercised economy with regard to judicial salaries. the annual stipends of the two chief justices, fixed in at £ , for the chief of the king's bench, and £ for the chief of the common pleas, have been reduced, in the former case to £ per annum, in the latter to £ per annum. the chancellor's salary for his services as speaker of the house of lords, has been made part of the £ , assigned to his legal office; so that his income is no more than ten thousand a year. the salary of the master of the rolls has been reduced from £ to £ a year; the same stipend, together with a pension on retirement of £ , being assigned to each of the lords justices. the salary of a vice chancellor is £ per annum; and after fifteen years' service, or in case of incurable sickness, rendering him unable to discharge the functions of his office, he can retire with a pension of £ . thurlow had no pension on retirement; but with much justice lord campbell observes: "although there was no parliamentary retired allowance for ex-chancellors, they were better off than at present. thurlow was a teller of the exchequer, and had given sinecures to all his relations, for one of which his nephew now receives a commutation of £ a year." lord loughborough was the first ex-chancellor who enjoyed, on retirement, a pension of £ per annum, under stat. geo. iii. c. . the next claimant for an ex-chancellor's pension was eldon, on his ejection from office in ; and the third claimant was erskine, whom the possession of the pension did not preserve from the humiliation of indigence. eldon's obstinate tenacity of office, was attended with one good result. it saved the nation much money by keeping down the number of ex-chancellors entitled to £ per annum. the frequency with which governments have been changed during the last forty years has had a contrary effect, producing such a strong bevy of lawyers--who are pensioners as well as peers--that financial reformers are loudly asking if some scheme cannot be devised for lessening the number of these costly and comparatively useless personages. at the time when this page is written, there are four ex-chancellors in receipt of pensions--lords brougham, st. leonards, cranworth, and westbury; but death has recently diminished the roll of chancellors by removing lords truro and lyndhurst. not long since the present writer read a very able, but one-sided article in a liberal newspaper that gave the sum total spent by the country since lord eldon's death in ex-chancellors' pensions; and in simple truth it must be admitted that the bill was a fearful subject for contemplation. [ ] during the commonwealth, the people, unwilling to pay their judges liberally, decided that a thousand a year was a sufficient income for a lord commissioner of the great seal. part iv. costume and toilet. chapter xix. bright and sad. from the days of the conqueror's chancellor, baldrick, who is reputed to have invented and christened the sword-belt that bears his name, lawyers have been conspicuous amongst the best dressed men of their times. for many generations clerical discipline restrained the members of the bar from garments of lavish costliness and various colors, unless high rank and personal influence placed them above the fear of censure and punishment; but as soon as the law became a lay-profession, its members--especially those who were still young--eagerly seized the newest fashions of costume, and expended so much time and money on personal decoration, that the governors of the inns deemed it expedient to make rules, with a view to check the inordinate love of gay apparel. by these enactments, foppish modes of dressing the hair was discountenanced or forbidden, not less than the use of gaudy clothes and bright arms. some of these regulations have a quaint air to readers of this generation; and as indications of manners in past times, they deserve attention. from dugdale's 'origines juridiciales,' it appears that in the earlier part of henry viii.'s reign, the students and barristers of the inns were allowed great licence in settling for themselves minor points of costume; but before that paternal monarch died, this freedom was lessened. accepting the statements of a previous chronicler, dugdale observes of the members of the middle temple under henry--"they have no order for their apparell; but every man may go as him listeth, so that his apparell pretend no lightness or wantonness in the wearer; for, even as his apparell doth shew him to be, even so he shall be esteemed among them." but at the period when this licence was permitted in respect of costume, the general discipline of the inn was scandalously lax; the very next paragraph of the 'origines' showing that the templars forbore to shut their gates at night, whereby "their chambers were oftentimes robbed, and many other misdemeanors used." but measures were taken to rectify the abuses and evil manners of the schools. in the thirty-eighth year of henry viii. an order was made "that the gentlemen of this company" (_i.e._, the inner temple) "should reform themselves in their cut or disguised apparel, and not to have long beards. and that the treasurer of this society should confer with the other treasurers of court for an uniform reformation." the authorities of lincoln's inn had already bestirred themselves to reduce the extravagances of dress and toilet which marked their younger and more frivolous fellow-members. "and for decency in apparel," writes dugdale, concerning lincoln's inn, "at a council held on the day of the nativity of st. john the baptist, hen. viii. it was ordered that for a continual rule, to be thenceforth kept in this house, no gentleman, being a fellow of this house, should wear any cut or pansid hose, or bryches; or pansid doublet, upon pain of putting out of the house." ten years later the authorities of lincoln's inn ( hen. viii.) ordered that no member of the society "being in commons, or at his repast, should wear a beard; and whoso did, to pay double commons or repasts in this house during such time as he should have any beard." by an order of maii, and philip and mary, the gentlemen of the inner temple were forbidden to wear long beards, no member of the society being permitted to wear a beard of more than three weeks' growth. every breach of this law was punished by the heavy fine of twenty shillings. in and of philip and mary it was ordered that no member of the middle temple "should thenceforth wear any great bryches in their hoses, made after the dutch, spanish, or almon fashion; or lawnde upon their capps; or cut doublets, upon pain of iiis iiiid forfaiture for the first default, and the second time to be expelled the house." at lincoln's inn, "in and philip and mary, one mr wyde, of this house, was (by special order made upon ascension day) fined at five groats, for going in his study gown in cheapside, on a sunday, about ten o'clock before noon; and in westminister hall, in the term time, in the forenoon." mr. wyde's offence was one of remissness rather than of excessive care for his personal appearance. with regard to beards in the same reign lincoln's inn exacted that such members "as had beards should pay _d._ for every meal they continued them; and every man" was required "to be shaven upon pain of putting out of commons." the orders made under elizabeth with regard to the same or similar matters are even more humorous and diverse. at the inner temple "it was ordered in elizabeth ( junii), that if any fellow in commons, or lying in the louse, did wear either hat or cloak in the temple church, hall, buttry, kitchen, or at the buttry-barr, dresser, or in the garden, he should forfeit for every such offence vis viiid. and in eliz. ( febr.) that they go not in cloaks, hatts, bootes, and spurs into the city, but when they ride out of the town." this order was most displeasing to the young men of the legal academies, who were given to swaggering amongst the brave gallants of city ordinaries, and delighted in showing their rich attire at paul's. the templar of the inner temple who ventured to wear arms (except his dagger) in hall committed a grave offence, and was fined five pounds. "no fellow of this house should come into the hall" it was enacted at the inner temple, eliz. ( dec.) "with any weapons, except his dagger, or his knife, upon pain of forfeiting the sum of five pounds." in old time the lawyers often quarrelled and drew swords in hall; and the object of this regulation doubtless was to diminish the number of scandalous affrays. the middle temple, in eliz., made six prohibitory rules with regard to apparel, enacting, " . that no ruff should be worn. . nor any white color in doublets or hoses. . nor any facing of velvet in gownes, but by such as were of the bench. . that no gentleman should walk in the streets in their cloaks, but in gownes. . that no hat, or long, or curled hair be worn. . nor any gown, but such as were of a sad color." of similar orders made at gray's inn, during elizabeth's reign, the following edict of eliz. (feb. ) may be taken as a specimen:--"that no gentleman of this society do come into the hall, to any meal, with their hats, boots, or spurs; but with their caps, decently and orderly, according to the ancient order of this house: upon pain, for every offence, to forfeit iiis d, and for the third offence expulsion. likewise, that no gentleman of this society do go into the city, or suburbs, or to walk in the fields, otherwise than in his gown, according to the ancient usage of the gentlemen of the inns of court, upon penalty of iiis iiiid for every offence; and for the third, expulsion and loss of his chamber." at lincoln's inn it was enacted, "in eliz., that if any fellow of this house, being a commoner or repaster, should within the precinct of this house wear any cloak, boots and spurs, or long hair, he should pay for every offence five shillings for a fine, and also to be put out of commons." the attempt to put down beards at lincoln's inn failed. dugdale says, in his notes on that inn, "and in eliz. it was further ordered, that no fellow of this house should wear any beard above a fortnight's growth; and that whoso transgresses therein should for the first offence forfeit _s._ d., to be paid and cast with his commons; and for the second time _s_ d., in like manner to be paid and cast with his commons; and the third time to be banished the house. but the fashion at that time of wearing beards grew then so predominant, as that the very next year following, at a council held at this house, upon the th of november, it was agreed and ordered, that all orders before that time touching beards should be void and repealed." in the same year in which the authorities of lincoln's inn forbade the wearing of beards, they ordered that no fellow of their society "should wear any sword or buckler; or cause any to be born after him into the town." this was the first of the seven orders made in eliz. for _all_ the inns of court; of which orders the sixth runs thus:--"that none should wear any velvet upper cap, neither in the house nor city. and that none after the first day of january then ensuing, should wear any furs, nor any manner of silk in their apparel, otherwise than he could justifie by the stature of apparel, made _an._ h. , under the penalty aforesaid." in the eighth year of the following reign it was ordained at lincoln's inn "that no rapier should be worn in this house by any of the society." other orders made in the reign of james i., and similar enactments passed by the inns in still more recent periods, can be readily found on reference to dugdale and later writers upon the usages of lawyers. on such matters, however, fashion is all-powerful; and however grandly the benchers of an inn might talk in their council-chamber, they could not prevail on their youngsters to eschew beards when beards were the mode, or to crop the hair of their heads when long tresses were worn by gallants at court. even in the time of elizabeth--when authority was most anxious that utter-barristers should in matters of costume maintain that reputation for 'sadness' which is the proverbial characteristic of apprentices of the law--counsellors of various degrees were conspicuous throughout the town for brave attire. if we had no other evidence bearing on the point, knowledge of human nature would make us certain that the bar imitated lord chancellor hatton's costume. at gray's inn, francis bacon was not singular in loving rich clothes, and running into debt for satin and velvet, jewels and brocade, lace and feathers. even of that contemner of frivolous men and vain pursuits, edward coke, biography assures us, "the jewel of his mind was put into a fair case, a beautiful body with comely countenance; a case which he did wipe and keep clean, delighting in good clothes, well worn; being wont to say that the outward neatness of our bodies might be a monitor of purity to our souls." the courts of james i. and his son drew some of their most splendid fops from the multitude of young men who were enjoined by the elders of their profession to adhere to a costume that was a compromise between the garb of an oxford scholar and the guise of a london 'prentice. the same was the case with charles ii.'s london. students and barristers outshone the brightest idlers at whitehall, whilst within the walls of their inns benchers still made a faint show of enforcing old restrictions upon costume. at a time when every templar in society wore hair--either natural or artificial--long and elaborately dressed, sir william dugdale wrote, "to the office of the chief butler" (_i.e._, of the middle temple) "it likewise appertaineth to take the names of those that be absent at the said solemn revells, and to present them to the bench, as also inform the bench of such as wear hats, bootes, _long hair_, or the like (for the which he is commonly out of the young gentlemen's favor)." chapter xx. millinery. saith sir william dugdale, in his chapter concerning the personal attire of judges--"that peculiar and decent vestments have, from great antiquity, been used in religious services, we have the authority of god's sacred precept to moses, '_thou shall make holy rayments for aaron and his sons, that are to minister unto me, that they may be for glory and beauty_.'" in this light and flippant age there are men irreverent enough to smile at the habiliments which our judges wear in court, for the glory of god and the seemly embellishment of their own natural beauty. like the stuff-gown of the utter-barrister, the robes of english judges are of considerable antiquity; but antiquaries labor in vain to discover all the facts relating to their origin and history. mr. foss says that at the stuart restoration english judges resumed the robes worn by their predecessors since the time of edward i.; but though the judicial robes of the present day bear a close resemblance to the vestments worn by that king's judges, the costume of the bench has undergone many variations since the twentieth year of his reign. in the eleventh year of richard ii. a distinction was made between the costumes of the chiefs of the king's bench and common pleas and their assistant justices; and at the same time the chief baron's inferiority to the chief justices was marked by costume. henry vi.'s chief justice of the king's bench, sir john fortescue, in his delightful treatise 'de laudibus legum angliæ,' describes the ceremony attending the creation of a justice, and minutely sets forth the chief items of judicial costume in the bench and common pleas during his time. "howbeit," runs robert mulcaster's rendering of the 'de laudibus,' "the habite of his rayment, hee shall from time to time forwarde, in some pointes change, but not in all the ensignments thereof. for beeing serjeaunt at lawe, hee was clothed in a long robe priestlyke, with a furred cape about his shoulders, and thereupon a hoode with two labels such as doctours of the lawes use to weare in certayne universityes, with the above described quoyfe. but being once made a justice, in steede of his hoode, hee shall weare a cloake cloased upon his righte shoulder, all the other ornaments of a serjeant still remayning; sauing that a justyce shall weare no partye coloured vesture as a serjeant may. and his cape is furred with none other than menever, whereas the serjeant's cape is ever furred with whyte lambe." judicial costume varied with the fashion of the day or the whim of the sovereign in the fourteenth and fifteenth centuries. subsequent generations saw the introduction of other changes; and in the time of charles i. questions relating to the attire of the common law judges were involved in so much doubt, and surrounded with so many contradictory precedents and traditions, that the judges resolved to simplify matters by conference and unanimous action. the result of their deliberation was a decree, dated june , , to which sir john bramston, chief of the king's bench, sir john finch, chief of the common pleas, sir humphrey davenport, chief of the exchequer, and all the minor judges of the three courts, gave subscription. chapter xxi. wigs. the changes effected in judicial costume during the commonwealth, like the reformation introduced at the same period into the language of the law, were all reversed in , when charles ii.'s judges resumed the attire and usages of their predecessors in the first charles's reign. when he had satisfied himself that monarchical principles were sure of an enduring triumph, and that their victory would conduce to his own advantage, great was young samuel pepys's delight at seeing the ancient customs of the lawyers restored, one after another. in october, , he had the pleasure of seeing "the lord chancellor and all the judges riding on horseback, and going to westminster hall, it being the first day of term." in the february of - his eyes were gladdened by the revival of another old practice. " th (lord's day). up and walked to st. paul's," he writes, "and, by chance, it was an extraordinary day for the readers of inns of the court and all the students to come to church, it being an old ceremony not used these twenty-five years, upon the first sunday in lent. abundance there was of students, more than there was room to seat but upon forms, and the church mighty full. one hawkins preached, an oxford man, a good sermon upon these words, 'but the wisdom from above is first pure, then peaceable.'" hawkins was no doubt a humorist, and smiled in the sleeve of his oxford gown as he told the law-students that _peace_ characterized the highest sort of _wisdom_. but, notwithstanding their zeal in reviving old customs, the lawyers of the restoration introduced certain novelties into legal life. from paris they imported the wig which still remains one of the distinctive adornments of the english barrister; and from the same centre of civilization they introduced certain refinements of cookery, which had been hitherto unknown in the taverns of fleet street and the strand. in the earlier part of the 'merry monarch's' reign, the eating-house most popular with young barristers and law-students was kept by a french cook named chattelin, who, besides entertaining his customers with delicate fare and choice wine, enriched our language with the word 'cutlet'--in his day spelt costelet. in the seventeenth century, until wigs were generally adopted, the common law judges, like their precursors for several past generations, wore in court velvet caps, coifs, and cornered caps. pictures preserve to us the appearance of justices, with their heads covered by one or two of these articles of dress, the moustache in many instances adorning the lip, and a well-trimmed beard giving point to the judicial chin. the more common head-dress was the coif and coif-cap, of which it is necessary to say a few words. the coif was a covering for the head, made of white lawn or silk, and common law judges wore it as a sign that they were members of the learned brotherhood of sergeants. speaking of the sergeants, fortescue, in his 'de laudibus,' says--"wherefore to this state and degree hath no man beene hitherto admitted, except he hath first continued by the space of sixteene years in the said generall studio of the law, and in token or signe, that all justices are thus graduat, every one of them alwaies, while he sitteth in the kinge's courts, weareth a white quoyfe of silke; which is the principal and chiefe insignment of habite, wherewith serjeants-at-lawe in their creation are decked. and neither the justice, nor yet the serjeaunt, shall ever put off the quoyfe, no not in the kinge's presence, though he bee in talke with his majestie's highnesse." at times it was no easy matter to take the coif from the head; for the white drapery was fixed to its place with strings, which in the case of one notorious rascal were not untied without difficulty. in henry iii.'s reign, when william de bossy was charged in open court with corruption and dishonesty, he claimed the benefit of clerical orders, and endeavored to remove his coif in order that he might display his tonsure; but before he could effect his purpose, an officer of the court seized him by the throat and dragged him off to prison. "voluit," says matthew paris, "ligamenta coifæ suæ solvere, ut, palam monstraret se tonsuram habere clericalem; sed non est permissus. satelles vero eum arripiens, non per coifæ ligamina sed per guttur eum apprehendens, traxit ad carcerem." from which occurrence spelman drew the untenable, and indeed, ridiculous inference, that the coif was introduced as a veil, beneath which ecclesiastics who wished to practice as judges or counsel in the secular courts, might conceal the personal mark of their order. the coif-cap is still worn in undiminished proportions by judges when they pass sentence of death, and is generally known as the 'black cap.' in old time the justice, on making ready to pronounce the awful words which consigned a fellow-creature to a horrible death, was wont to draw up the flat, square, dark cap, that sometimes hung at the nape of his neck or the upper part of his shoulder. having covered the whiteness of his coif, and partially concealed his forehead and brows with the sable cloth, he proceeded to utter the dread sentence with solemn composure and firmness. at present the black cap is assumed to strike terror into the hearts of the vulgar; formerly it was pulled over the eyes, to hide the emotion of the judge. shorn of their original size, the coif and the coif-cap may still be seen in the wigs worn by sergeants at the present day. the black blot which marks the crown of a sergeant's wig is generally spoken of as his coif, but this designation is erroneous. the black blot is the coif-cap; and those who wish to see the veritable coif must take a near view of the wig, when they will see that between the black silk and the horsehair there lies a circular piece of white lawn, which is the vestige of that pure raiment so reverentially mentioned by fortescue. on the general adoption of wigs, the sergeants, like the rest of the bar, followed in the wake of fashion: but at first they wore their old coifs and caps over their false hair. finding this plan cumbersome, they gradually diminished the size of the ancient covering, until the coif and cap became the absurd thing which resembles a bald place covered with court-plaster quite as much as the rest of the wig resembles human hair. whilst the common law judges of the seventeenth century, before the introduction of wigs, wore the undiminished coif and coif-cap, the lord chancellor, like the speaker of the house of commons, wore a hat. lord keeper williams, the last clerical holder of the seals, used to wear in the court of chancery a round, conical hat. bradshaw, sitting as president of the commissioners who tried charles i., wore a hat instead of the coif and cap which he donned at other times as a serjeant of law. kennett tells us that "mr. sergeant bradshaw, the president, was afraid of some tumult upon such new and unprecedented insolence as that of sitting judge upon his king; and therefore, beside other defence, he had a thick big-crowned beaver hat, lined with plated steel, to ward off blows." it is scarcely credible that bradshaw resorted to such means for securing his own safety, for in the case of a tumult, a hat, however strong, would have been an insignificant protection against popular fury. if conspirators had resolved to take his life, they would have tried to effect their purpose by shooting or stabbing him, not by knocking him on the head. a steel-plated hat would have been but a poor guard against a bludgeon, and a still poorer defence against poignard or pistol. it is far more probable that in laying aside the ordinary head-dress of an english common law judge, and in assuming a high-crowned hat, the usual covering of a speaker, bradshaw endeavored to mark the exceptional character of the proceeding, and to remind the public that he acted under parliamentary sanction. whatever the wearer's object, england was satisfied that he had a notable purpose, and persisted in regarding the act as significant of cowardice or of insolence, of anxiety to keep within the lines of parliamentary privilege or of readiness to set all law at defiance. at the time and long after bradshaw's death, that hat caused an abundance of discussion; it was a problem which men tried in vain to solve, an enigma that puzzled clever heads, a riddle that was interpreted as an insult, a caution, a protest, a menace, a doubt. oxford honored it with a latin inscription, and a place amongst the curiosities of the university, and its memory is preserved to englishmen of the present day in the familiar lines-- "where england's monarch once uncovered sat, and bradshaw bullied in a broad-brimmed hat." judges were by no means unanimous with regard to the adoption of wigs, some of them obstinately refusing to disfigure themselves with false tresses, and others displaying a foppish delight in the new decoration. sir matthew hale, who died in , to the last steadily refused to decorate himself with artificial locks. the likeness of the chief justice that forms the frontispiece to burnet's memoir of the lawyer, represents him in his judicial robes, wearing his ss collar, and having on his head a cap--not the coif-cap, but one of the close-fitting skull-caps worn by judges in the seventeenth century. such skull-caps, it has been observed in a prior page of this work, were worn by barristers under their wigs, and country gentlemen at home, during the last century. into such caps readers have seen sir francis north put his fees. the portrait of sir cresswell levinz (who returned to the bar on dismissal from the bench in ) shows that he wore a full-bottomed wig whilst he was a judge; whereas sir thomas street, who remained a judge till the close of james ii.'s reign, wore his own hair and a coif-cap. when shaftesbury sat in court as lord high chancellor of england he wore a hat, which roger north is charitable enough to think might have been a black hat. "his lordship," says the 'examen,' "regarded censure so little, that he did not concern himself to use a decent habit as became a judge of his station; for he sat upon the bench in an ash-colored gown silver-laced, and full-ribboned pantaloons displayed, without any black at all in his garb, unless it were his hat, which, now, i cannot positively say, though i saw him, was so." even so late as queen anne's reign, which witnessed the introduction of three-cornered hats, a lord keeper wore his own hair in court instead of a wig, until he received the sovereign's order to adopt the venerable disguise of a full-bottomed wig. lady sarah cowper recorded of her father, :--"the queen after this was persuaded to trust a whigg ministry, and in the year , octr., she made my father ld. keeper of the great seal, in the st year of his age--'tis said the youngest lord keeper that ever had been. he looked very young, and wearing his own hair made him appear yet more so, which the queen observing, obliged him to cut it off, telling him the world would say she had given the seals to a boy." the young lord keeper of course obeyed; and when he appeared for the first time at court in a wig, his aspect was so grave and reverend that the queen had to look at him twice before she recognized him. more than half a century later, george ii. experienced a similar difficulty, when lord hardwicke, after the close of his long period of official service, showed himself at court in a plain suit of black velvet, with a bag and sword. familiar with the appearance of the chancellor dressed in full-bottomed wig and robes, the king failed to detect his old friend and servant in the elderly gentleman who, in the garb of a private person of quality, advanced and rendered due obeisance. "sir, it is lord hardwicke," whispered a lord in waiting who stood near his majesty's person, and saw the cause of the cold reception given to the ex-chancellor. but unfortunately the king was not more familiar with the ex-chancellor's title than his appearance, and in a disastrous endeavor to be affable inquired, with an affectation of interest, "how long has your lordship been in town?" the peer's surprise and chagrin were great until the monarch, having received further instruction from the courtly prompter at his elbow, frankly apologized in bad english and with noisy laughter. "had lord hardwicke," says campbell, "worn such a uniform as that invented by george iv. for ex-chancellors (very much like a field marshal's), he could not have been mistaken for a common man." the judges who at the first introduction of wigs refused to adopt them were prone to express their dissatisfaction with those coxcombical contrivances when exhibited upon the heads of counsel; and for some years prudent juniors, anxious to win the favorable opinion of anti-wig justices, declined to obey the growing fashion. chief justice hale, a notable sloven, conspicuous amongst common law judges for the meanness of his attire, just as shaftesbury was conspicuous in the court of chancery for foppishness, cherished lively animosity for two sorts of legal practitioners--attorneys who wore swords, and young templars who adorned themselves with periwigs. bishop burnet says of hale: "he was a great encourager of all young persons that he saw followed their books diligently, to whom he used to give directions concerning the method of their study, with a humanity and sweetness that wrought much on all that came near him; and in a smiling, pleasant way he would admonish them, if he saw anything amiss in them; particularly if they went too fine in their clothes, he would tell them it did not become their profession. he was not pleased to see students wear long periwigs, or attorneys go with swords, so that such men as would not be persuaded to part with those vanities, when they went to him laid them aside and went as plain as they could, to avoid the reproof which they knew they might otherwise expect." in england, however, barristers almost universally wore wigs at the close of the seventeenth century; but north of the tweed advocates wore cocked hats and powdered hair so late as the middle of the eighteenth century. when alexander wedderburn joined the scotch bar in , wigs had not come into vogue with the members of his profession. many are the good stories told of judicial wigs, and amongst the best of them, is the anecdote which that malicious talker samuel rogers delighted to tell at edward law's expense. "lord ellenborough," says the 'table-talk,' "was once about to go on circuit, when lady ellenborough said that she should like to accompany him. he replied that he had no objection provided she did not encumber the carriage with bandboxes, which were his utter abhorrence. during the first day's journey lord ellenborough, happening to stretch his legs, struck his foot against something below the seat; he discovered that it was a bandbox. up went the window, and out went the bandbox. the coachman stopped, and the footman, thinking that the bandbox had tumbled out of the window by some extraordinary chance, was going to pick it up, when lord ellenborough furiously called out, 'drive on!' the bandbox, accordingly, was left by the ditch-side. having reached the county town where he was to officiate as judge, lord ellenborough proceeded to array himself for his appearance in the court-house. 'now,' said he, 'where's my wig?--where _is_ my wig?' 'my lord,' replied his attendant, 'it was thrown out of the carriage window!'" changing together with fashion, barristers ceased to wear their wigs in society as soon as the gallants and bucks of the west end began to appear with their natural tresses in theatres and ball rooms; but the conservative genius of the law has hitherto triumphed over the attempts of eminent advocates to throw the wig out of westminster hall. when lord campbell argued the great privilege case, he obtained permission to appear without a wig; but this concession to a counsel--who, on that occasion, spoke for sixteen hours--was accompanied with an intimation that "it was not to be drawn into precedent." less wise or less fortunate than the bar, the judges of england wore their wigs in society after advocates of all ranks and degrees had agreed to lay aside the professional head-gear during hours of relaxation. lady eldon's good taste and care for her husband's comfort, induced lord eldon, soon after his elevation to the pillow of the common pleas, to beg the king's permission that he might put off his judicial wig on leaving the courts, in which as chief justice he would be required to preside. the petition did not meet with a favorable reception. for a minute george iii. hesitated; whereupon eldon supported his prayer by observing, with the fervor of an old-fashioned tory, that the lawyer's wig was a detestable innovation--unknown in the days of james i. and charles the martyr, the judges of which two monarchs would have rejected as an insult any proposal that they should assume a head-dress fit only for madmen at masquerades or mummers at country wakes. "what! what!" cried the king, sharply; and then, smiling mischievously, as he suddenly saw a good answer to the plausible argument, he added--"true, my lord, charles the first's judges wore no wigs, but they wore beards. you may do the same, if you like. you may please yourself about wearing or not wearing your wig; but mind, if you please yourself by imitating the old judges, as to the head--you must please me by imitating them as to the chin. you may lay aside your wig; but if you do--you must wear a beard." had he lived in these days, when barristers occasionally wear beards in court, and judges are not less conspicuous than the junior bar for magnitude of nose and whisker, eldon would have accepted the condition. but the last year of the last century, was the very centre and core of that time which may be called the period of close shavers; and john scott, the decorous and respectable, would have endured martyrdom rather than have grown a beard, or have allowed his whiskers to exceed the limits of mutton-chop whiskers. as chief justice of the common pleas, and subsequently as chancellor, eldon wore his wig whenever he appeared in general society; but in the privacy of his own house he gratified lady eldon by laying aside the official head-gear. that this was his usage, the gossips of the law-courts knew well; and at carlton house, when the prince of wales was most indignant with the chancellor, who subsequently became his familiar friend, courtiers were wont to soothe the royal rage with diverting anecdotes of the attention which the odious lawyer lavished on the natural hair that gave his bessie so much delight. on one occasion, when eldon was firmly supporting the cause of the princess of wales, 'the first gentleman of europe' forgot common decency so far, that he made a jeering allusion to this instance of the chancellor's domestic amiability. "i am not the sort of person," growled the prince with an outbreak of peevishness, "to let my hair grow under my wig to please my wife." with becoming dignity eldon answered--"your royal highness condescends to be personal. i beg leave to withdraw;" and suiting his action to his words, the chancellor made a low bow to the angry prince, and retired. the prince sneaked out of the position by an untruth, instead of an apology. on the following day he caused a written assurance to be conveyed to the chancellor, that the offensive speech "was nothing personal, but simply a proverb--a proverbial way of saying a man was governed by his wife." it is needless to say that the expression was not proverbial, but distinctly and grossly personal. lord malmesbury's comment on this affair is "very absurd of lord eldon; but explained by his having literally done what the prince said." lord eldon's conduct absurd! what was the prince's? chapter xxii. bands and collars. bands came into fashion with englishmen many years before wigs, but like wigs they were worn in general society before they became a recognized and distinctive feature of professional costume. ladies of rank dyed their hair, and wore false tresses in elizabethan england; but their example was not extensively followed by the men of their time--although the courtiers of the period sometimes donned 'periwinkes,' to the extreme disgust of the multitude, and the less stormy disapprobation of the polite. the frequency with which bands are mentioned in elizabethan literature, affords conclusive evidence that they were much worn toward the close of the sixteenth century; and it is also matter of certainty that they were known in england at a still earlier period. henry viii. had " shirte bands of silver with ruffes to the same, whereof one was perled with golde;" and in peacham observed, "king henry viii. was the first that ever wore a band about his neck, and that very plain, without lace, and about an inch or two in depth. we may see how the case is altered, he is not a gentleman, or in the fashion, whose band of italian cutwork standeth him not at the least in three or four pounds; yea, a sempster in holborn told me there are of threescore pound price apiece." that the fops of charles i.'s reign were spending money on a fashion originally set by king henry the bluff, was the opinion also of taylor the water poet, who in wrote-- "now up alofte i mount unto the ruffe, which into foolish mortals pride doth puffe; yet ruffes' antiquity is here but small-- within this eighty years not one at all; for the eighth henry (so i understand) was the first king that ever wore a _band_; and but a _falling-band_, plaine with a hem; all other people knew no use of them. yet imitation in small time began to grow, that it the kingdom overran; the little falling-bands encreased to ruffes, ruffes (growing great) were waited on by cuffes, and though our frailties should awake our care, we make our ruffes as careless as we are." in regarding the falling-band as the germ of the ruff, the water-poet differs from those writers who, with greater appearance of reason, maintain that the ruff was the parent of the band. into this question concerning origin of species, there is no occasion to enter on the present occasion. it is enough to state that in the earlier part of the seventeenth century bands or collars--bands stiffened and standing at the backward part, and bands falling upon the shoulder and breast--were articles of costume upon which men of expensive and modish habits spent large sums. in the days of james i., when standing bands were still the fashion, and falling-bands had not come in, the inns of court men were very particular about the stiffness, cut, and texture of their collars. speaking of the inns of court men, sir thomas overbury, (who was poisoned in ), says: "he laughs at every man whose band sits not well, or that hath not a fair shoe-type, and is ashamed to be in any man's company who wears not his cloathes well." if portraits may be trusted, the falling-band of charles i.'s time, bore considerable resemblance to the falling neck-frill, which twenty years since was very generally worn by quite little boys, and is still sometimes seen on urchins who are about six years of age. the bands worn by the barristers and clergy of our own time are modifications of this antique falling-band, and like the coif cap of the modern sergeant, they bear only a faint likeness to their originals. but though bands--longer than those still worn by clergymen--have come to be a distinctive feature of legal costume, the bar was slow to adopt falling-collars--regarding them as a strange and fanciful innovation. whitelock's personal narrative furnishes pleasant testimony that the younger gentry of charles i.'s england adopted the new collar before the working lawyers. "at the quarter-sessions of oxford," says whitelock, speaking of the year , when he was only thirty years of age, "i was put into the chair in court, though i was in colored clothes, a sword by my side, and a falling-band, which was unusual for lawyers in those days, and in this garb i gave the charge to the grand jury. i took occasion to enlarge on the point of jurisdiction in the temporal courts in matters ecclesiastical, and the antiquity thereof, which i did the rather because the spiritual men began in those days to swell higher than ordinary, and to take it as an injury to the church that anything savoring of the spirituality, should be within the cognisance of ignorant laymen. the gentlemen and freeholders seemed well pleased with my charge, and the management of the business of the sessions; and said they perceived one might speak as good sense in a falling-band as in a ruff." at this time whitelock had been about seven years at the bar; but at the quarter-sessions the young templar was playing the part of country squire, and as his words show, he was dressed in a fashion that directly violated professional usage. whitelock's speech seems to have been made shortly before the bar accepted the falling-band as an article of dress admissible in courts of law. towards the close of charles's reign, such bands were very generally worn in westminster hall by the gentlemen of the long robe; and after the restoration, a barrister would as soon have thought of appearing at the king's bench without his gown as without his band. unlike the bar-bands of the present time--which are lappets of fine lawn, of simple make--the bands worn by charles ii.'s lawyers were dainty and expensive articles, such as those which peacham exclaimed against in the preceding reign. at that date the templar in prosperous circumstances had his bands made entirely of point lace, or of fine lawn edged with point lace; and as he wore them in society as well as in court, he was constantly requiring a fresh supply of them. few accidents were more likely to ruffle a templar's equanimity than a mishap to his band occurring through his own inadvertence or carelessness on the part of a servant. at table the pieces of delicate lace-work were exposed to many dangers. continually were they stained with wine or soiled with gravy, and the young lawyer was deemed a marvel of amiability who could see his point lace thus defiled and abstain from swearing. "i remember," observes roger north, when he is showing the perfect control in which his brother francis kept his temper, at his table a stupid servant spilt a glass of red wine upon his point band and clothes. "he only wiped his face and clothes with the napkin, and 'here,' said he, 'take this away;' and no more." in 'the london spy,' ned ward shows that during queen anne's reign legal practitioners of the lowest sort were particular to wear bands. describing the pettifogger, ward says, "he always talks with as great assurance as if he understood what he pretends to know; and always wears a band, in which lies his gravity and wisdom." at the same period a brisk trade was carried on in westminster hall by the sempstresses who manufactured bands and cuffs, lace ruffles, and lawn kerchiefs for the grave counsellors and young gallants of the inns of court. "from thence," says the author of 'the london spy', "we walked down by the sempstresses, who were very nicely digitising and pleating turnsovers and ruffles for the young students, and coaxing them with amorous looks, obliging cant, and inviting gestures, to give so extravagant a price for what they buy." from collars of lace and lawn, let us turn to collars of precious metal. antiquarians have unanimously rejected the fanciful legend adopted by dugdale concerning the ss collar, as well as many not less ingenious interpretations of the mystic letters; and at the present time it is almost unanimously settled that the ss collar is the old lancastrian badge, corresponding to the yorkist collar of roses and suns, and that the s is either the initial of the sentimental word 'souvenez,' or, as mr. beltz maintains, the initial letter of the sentimental motto, 'souvenez-vous de moi.' in mr. foss's valuable work, 'the judges of england,' at the commencement of the seventh volume, the curious reader may find an excellent summary of all that has been or can be said about the origin of this piece of feudal livery, which, having at one time been very generally assumed by all gentle and fairly prosperous partisans of the house of lancaster, has for many generations been the distinctive badge of a few official persons. in the second year of henry iv. an ordinance forbade knights and esquires to wear the collar, save in the king's presence; and in the reign of henry viii., the privilege of wearing the collar was taken away from simple esquires by the 'acte for reformacyon of excesse in apparayle,' henry viii. c. , which ordained "that no man oneless he be a knight ... weare any color of gold, named a color of s." gradually knights and non-official persons relinquished the decoration; and in our own day the right to bear it is restricted to the two chief justices, the chief baron, the sergeant-trumpetor, and all the officers of the heralds' college, pursuivants excepted; "unless," adds mr. foss, "the lord mayor of london is to be included, whose collar is somewhat similar, and is composed of twenty-eight ss, fourteen roses, thirteen knots; and measures sixty-four inches." chapter xxiii. bags and gowns. on the stages of the caroline theatres the lawyer is found with a green bag in his hand; the same is the case in the literature of queen anne's reign; and until a comparatively recent date green bags were generally carried in westminster hall and in provincial courts by the great body of legal practitioners. from wycherley's 'plain dealer,' it appears that in the time of charles ii. angry clients were accustomed to revile their lawyers as 'green bag-carriers.' when the litigious widow blackacre upbraids the barrister who declines to argue for her, she exclaims--"impertinent again, and ignorant to me! gadsboddikins! you puny upstart in the law, to use me so, you green-bag carrier, you murderer of unfortunate causes, the clerk's ink is scarce off of your fingers." in the same drama, making much play with the green bag, wycherley indicates the widow blackacre's quarrelsome disposition by decorating her with an enormous green reticule, and makes her son the law-student, stagger about the stage in a gown, and under a heavy burden of green bags. so also in the time of queen anne, to say that a man intended to carry a green bag, was the same as saying that he meant to adopt the law as a profession. in dr. arbuthnot's 'history of john bull,' the prevalence of the phrase is shown by the passage, "i am told, cousin diego, you are one of those that have undertaken to manage me, and that you have said you will carry a green bag yourself, rather than we shall make an end of our lawsuit. i'll teach them and you too to manage." it must, however, be borne in mind that in queen anne's time, green bags, like white bands, were as generally adopted by solicitors and attorneys, as by members of the bar. in his 'character of a pettifogger' the author of 'the london spy' observes--"his learning is commonly as little as his honesty, and his conscience much larger than his green bag." some years have elapsed since green bags altogether disappeared from our courts of law; but the exact date of their disappearance has hitherto escaped the vigilance and research of colonel landman, 'causidicus,' and other writers who in the pages of that useful and very entertaining publication, _notes and queries_, have asked for information on that point and kindred questions. evidence sets aside the suggestion that the color of the lawyer's bag was changed from green to red because the proceedings at queen caroline's trial rendered green bags odious to the public, and even dangerous to their bearers; for it is a matter of certainty that the leaders of the chancery and common law bars carried red bags at a time considerably anterior to the inquiry into the queen's conduct. in a letter addressed to the editor of _notes and queries_, a writer who signs himself 'causidicus,' observes--"when i entered the profession (about fifty years ago) no junior barrister presumed to carry a bag in the court of chancery, unless one had been presented to him by a king's counsel; who, when a junior was advancing in practice, took an opportunity of complimenting him on his increase of business, and giving him his own bag to carry home his papers. it was then a distinction to carry a bag, and a proof that a junior was rising in his profession. i do not know whether the custom prevailed in other courts." from this it appears that fifty years since the bag was an honorable distinction at the chancery bar, giving its bearer some such professional status as that which is conferred by 'silk' in these days when queen's counsel are numerous. the same professional usage seems to have prevailed at the common law bar more than eighty years ago; for in , when edward law joined the northern circuit, and forthwith received a large number of briefs, he was complimented by wallace on his success, and presented with a bag. lord campbell asserts that no case had ever before occurred where a junior won the distinction of a bag during the course of his first circuit. there is no record of the date when members of the junior bar received permission to carry bags according to their own pleasure; it is even matter of doubt whether the permission was ever expressly accorded by the leaders of the profession--or whether the old restrictive usage died a gradual and unnoticed death. the present writer, however, is assured that at the chancery bar, long after _all_ juniors were allowed to carry bags, etiquette forbade them to adopt bags of the same color as those carried by their leaders. an eminent queen's counsel, who is a member of that bar, remembers that when he first donned a stuff gown, he, like all chancery jurors, had a purple bag--whereas the wearers of silk at the same period, without exception, carried red bags. before a complete and satisfactory account can be given of the use of bags by lawyers, as badges of honor and marks of distinction, answers must be found for several questions which at present remain open to discussion. so late as queen anne's reign, lawyers of the lowest standing, whether advocates or attorneys, were permitted to carry bags;--a right which the junior bar appears to have lost when edward law joined the northern circuit. at what date between queen anne's day and (the year in which lord ellenborough made his _début_ in the north), was this change effected? was the change gradual or sudden? to what cause was it due? again, is it possible that lord campbell and causidicus wrote under a misapprehension, when they gave testimony concerning the usages of the bar with regard to bags, at the close of the last and the beginning of the present century? the memory of the distinguished queen's counsel, to whom allusion is made in the preceding paragraph, is quite clear that in his student days chancery jurors were forbidden by etiquette to carry _red_ bags, but were permitted to carry blue bags; and he is strongly of opinion that the restriction, to which lord campbell and causidicus draw attention, did not apply at any time to blue bags, but only concerned red bags, which, so late as thirty years since, unquestionably were the distinguishing marks of men in leading chancery practice. perhaps legal readers of this chapter will favor the writer with further information on this not highly important, but still not altogether uninteresting subject. the liberality which for the last five and-twenty years has marked the distribution of 'silk' to rising members of the bar, and the ease with which all fairly successful advocates may obtain the rank of queen's counsel, enable lawyers of the present generation to smile at a rule which defined a man's professional position by the color of his bag, instead of the texture of his gown; but in times when 'silk' was given to comparatively few members of the bar, and when that distinction was most unfairly withheld from the brightest ornaments of their profession, if their political opinions displeased the 'party in power,' it was natural and reasonable in the bar to institute for themselves an 'order of merit'--to which deserving candidates could obtain admission without reference to the prejudices of a chancellor or the whims of a clique. at present the sovereign's counsel learned in the law constitute a distinct order of the profession; but until the reign of william iv. they were merely a handful of court favorites. in most cases they were sound lawyers in full employment; but the immediate cause of their elevation was almost always some political consideration--and sometimes the lucky wearer of a silk gown had won the right to put k.c. or q.c. after his name by base compliance with ministerial power. that our earlier king's counsel were not created from the purest motives or for the most honorable purposes will be readily admitted by the reader who reflects that 'silk gowns' are a legal species, for which the nation is indebted to the stuarts. for all practical purposes francis bacon was a q.c. during the reign of queen elizabeth. he enjoyed peculiar and distinctive _status_ as a barrister, being consulted on legal matters by the queen, although he held no place that in familiar parlance would entitle him to rank with her crown lawyers; and his biographers have agreed to call him elizabeth's counsellor learned in the law. but a q.c. holding his office by patent--that is to say, a q.c. as that term is understood at the present time--francis bacon never was. on the accession, however, of james i., he received his formal appointment of k.c., the new monarch having seen fit to recognise the lawyer's claim to be regarded as a 'special counsel,' or 'learned counsel extraordinary.' another barrister of the same period who obtained the same distinction was sir henry montague, who, in a patent granted in to the two temples, is styled "one of our counsel learned in the law." thus planted, the institution of monarch's special counsel was for many generations a tree of slow growth. until george iii.'s reign the number of monarch's counsel, living and practising at the same time, was never large; and throughout the long period of that king's rule the fraternity of k.c. never assumed them agnitude and character of a professional order. it is uncertain what was the greatest number of contemporaneous k.c.'s during the stuart dynasty; but there is no doubt that from the arrival of james i. to the flight of james ii. there was no period when the k.c.'s at all approached the sergeants in name and influence. in rymer's 'foedera' mention is made of four barristers who were appointed counsellors to charles i., one of whom, sir john finch, in a patent of precedence is designated "king's counsel;" but it is not improbable that the royal martyr had other special counsellors whose names have not been recorded. at different times of charles ii.'s reign, there were created some seventeen k.c.'s, and seven times that number of sergeants. james ii. made ten k.c.'s; william and mary appointed eleven special counsellors; and the number of q.c.'s appointed by anne was ten. the names of george i.'s learned counsel are not recorded; the list of george ii.'s k.c.'s, together with barristers holding patents of precedence, comprise thirty names; george iii. throughout his long tenure of the crown, gave 'silk' with or without the title of k.c., to ninety-three barristers; george iv. to twenty-six; whereas the list of william iv.'s appointments comprised sixty-five names, and the present queen has conferred the rank of q.c. on about two hundred advocates--the law-list for mentioning one hundred and thirty-seven barristers who are q.c.'s, or holders of patents of precedence; and only twenty-eight sergeants-at-law, not sitting as judges in any of the supreme courts. the diminution in the numbers of the sergeants is due partly to the loss of their old monopoly of business in the common pleas, and partly--some say chiefly--to the profuseness with which silk gowns, with q.c. rank attached, have been thrown to the bar since the passing of the reform bill. under the old system when 'silk' was less bountifully bestowed, eminent barristers not only led their circuits in stuff; but, after holding office as legal advisers to the crown and wearing silk gowns whilst they so acted with their political friends, they sometimes resumed their stuff gowns and places 'outside the bar,' on descending from official eminence. when charles york in resigned the post of attorney general, he returned to his old place in court without the bar, clad in the black bombazine of an ordinary barrister, whereas during his tenure of office he had worn silk and sat within the bar. in the same manner when dunning resigned the solicitor generalship in , he reappeared in the court of king's bench, attired in stuff, and took his place without the bar; but as soon as he had made his first motion, he was addressed by lord mansfield, who with characteristic courtesy informed him that he should take precedence in that court before all members of the bar, whatever might be their standing, with the exception of king's counsel, sergeants, and the recorder of london. on joining the northern circuit in , edward law found wallace and lee leading in silk, and twenty years later he and jemmy park were the k.c.'s of the same district; of course the circuit was not without wearers of the coif, one of its learned sergeants being cockell, who, before law obtained the leading place, was known as 'the almighty of the north;' and whose success, achieved in spite of an almost total ignorance of legal science, was long quoted to show that though knowledge is power, power may be won without knowledge. from pure dislike of the thought that younger men should follow closely or at a distance in his steps to the highest eminences of legal success, lord eldon was disgracefully stingy in bestowing honors on rising barristers who belonged to his own party, but his injustice and downright oppression to brilliant advocates in the whig ranks merit the warmest expressions of disapproval and contempt. the most notorious sufferers from his rancorous intolerance were henry brougham and mr. denman, who, having worn silk gowns as queen caroline's attorney general and solicitor general, were reduced to stuff attire on that wretched lady's death. it is worthy of notice that in old time, when silk gowns were few, their wearers were sometimes very young men. from the days of francis north, who was made k.c. before he was a barrister for seven full years' standing, down to the days of eldon, who obtained silk after seven years' service in stuff, instances could be cited of the rapidity with which lucky youngsters rose to the honors of silk, whilst hard-worked veterans were to the last kept outside the bar. thurlow was called to the bar in november, , and donned silk in december, . six years had now elapsed since his call to the english bar, when alexander wedderburn was entitled to put the initials k.c. after his name, and wrote to his mother in scotland, "i can't very well explain to you the nature of my preferment, but it is what most people at the bar are very desirous of, and yet most people run a hazard of losing money by it. i can scarcely expect any advantage from it for some time equal to what i give up; and, notwithstanding, i am extremely happy, and esteem myself very fortunate in having obtained it." erskine's silk was won with even greater speed, for he was invited within the bar, but his silk gown came to him with a patent of precedence, giving him the status without the title of a king's counsel. bar mourning is no longer a feature of legal costume in england. on the death of charles ii. members of the bar donned gowns indicative of their grief for the national loss, and they continued, either universally or in a large number of cases, to wear these woful habiliments till , when chief justice holt ordered all barristers practising in his court to appear "in their proper gowns and not in mourning ones"--an order which, according to narcissus luttrell, compelled the bar to spend £ per man. from this it may be inferred that (regard being had to change in value of money) a bar-gown at the close of the seventeenth century cost about ten times as much as it does at the present time. chapter xxiv. hats. not less famous in history than bradshaw's broad-brimmed hat, nor less graceful than shaftesbury's jaunty beaver, nor less memorable than the sailor's tarpaulin, under cover of which jeffreys slunk into the red cow, wapping, nor less striking than the black cap still worn by justice in her sternest mood, nor less fanciful than the cocked hat which covered wedderburn's powdered hair when he daily paced the high street of edinburgh with his hands in a muff--was the white hat which an illustrious templar invented at an early date of the eighteenth century. beau brummel's original mind taught the human species to starch their white cravats; richard nash, having surmounted the invidious bar of plebeian birth and raised himself upon opposing circumstances to the throne of bath, produced a white hat. to which of these great men society owes the heavier debt of gratitude thoughtful historians cannot agree; but even envious detraction admits that they deserve high rank amongst the benefactors of mankind. brummel was a soldier; but law proudly claims as her own the parent of the pale and spotless _chapeau_. about lawyers' cocked hats a capital volume might be written, that should contain no better story than the one which is told of ned thurlow's discomfiture in , when he was playing a trickster's game with his friends and foes. windsor castle just then contained three distinct centres of public interest--the mad king in the hands of his keepers; on the one side of the impotent monarch the prince of wales waiting impatiently for the regency; on the other side, the queen with equal impatience longing for her husband's recovery. the prince and his mother both had apartments in the castle, her majesty's quarters being the place of meeting for the tory ministers, whilst the prince's apartments were thrown open to the select leaders of the whig expectants. of course the two coteries kept jealously apart; but thurlow, who wished to be still lord chancellor, "whatever king might reign," was in private communication with the prince's friends. with furtive steps he passed from the queen's room (where he had a minute before been assuring the ministers that he would be faithful to the king's adherents), and made clandestine way to the apartment where sheridan and payne were meditating on the advantages of a regency without restriction. on leaving the prince, the wary lawyer used to steal into the king's chamber, and seek guidance or encouragement from the madman's restless eyes. was the malady curable? if curable, how long a time would elapse before the return of reason? these were the questions which the chancellor put to himself, as he debated whether he should break with the tories and go over to the whigs. through the action of the patient's disease, the most delicate part of the lawyer's occupation was gone; and having no longer a king's conscience to keep, he did not care, by way of diversion--to keep his own. for many days ere they received clear demonstration of the chancellor's deceit, the other members of the cabinet suspected that he was acting disingenuously, and when his double-dealing was brought to their sure knowledge, their indignation was not even qualified with surprise. the story of his exposure is told in various ways; but all versions concur in attributing his detection to an accident. like the gallant of the french court, whose clandestine intercourse with a great lady was discovered because, in his hurried preparations for flight from her chamber, he appropriated one of her stockings, thurlow, according to one account, was convicted of perfidy by the prince's hat, which he bore under his arm on entering the closet where the ministers awaited his coming. another version says that thurlow had taken his seat at the council-table, when his hat was brought to him by a page, with an explanation that he had left it in the prince's private room. a third, and more probable representation of the affair, instead of laying the scene in the council-chamber, makes the exposure occur in a more public part of the castle. "when a council was to be held at windsor," said the right honorable thomas grenville, in his old age recounting the particulars of the mishap, "to determine the course which ministers should pursue, thurlow had been there some time before any of his colleagues arrived. he was to be brought back to london by one of them, and the moment of departure being come, the chancellor's hat was nowhere to be found. after a fruitless search in the apartment where the council had been held, a page came with the hat in his hand, saying aloud, and with great _naïveté_, 'my lord, i found it in the closet of his royal highness the prince of wales.' the other ministers were still in the hall, and thurlow's confusion corroborated the inference which they drew." cannot an artist be found to place upon canvas this scene, which furnishes the student of human nature with an instructive instance of "that combination strange--a lawyer and a blush?" for some days thurlow's embarrassment and chagrim were very painful. but a change in the state of the king's health caused a renewal of the lawyer's attachment to tory principles and to his sovereign. the lawyers of what may be termed the cocked hat period seldom maintained the happy mean between too little and too great care for personal appearance. for the most part they were either slovenly or foppish. from the days when as a student he used to slip into nando's in a costume that raised the supercilious astonishment of his contemporaries, thurlow to the last erred on the side of neglect. camden roused the satire of an earlier generation by the miserable condition of the tiewig which he wore on the bench of chancery, and by an undignified and provoking habit of "gartering up his stockings while counsel were the most strenuous in their eloquence." on the other hand joseph yates--the puisne judge whom mansfield's jeers and merciless oppressions drove from the king's bench to the common pleas, where he died within four months of his retreat--was the finest of fine gentlemen. before he had demonstrated his professional capacity, the habitual costliness and delicacy of his attire roused the distrust of attorneys, and on more than one occasion wrought him injury. an awkward, crusty, hard-featured attorney entered the foppish barrister's chambers with a bundle of papers, and on seeing the young man in a superb and elaborate evening dress, is said to have inquired, "can you say, sir, when mr. yates will return?" "return, my good sir!" answered the barrister, with an air of surprise, "i am mr. yates, and it will give me the greatest pleasure to talk with you about those papers." having taken a deliberate survey of the young templar, and made a mental inventory of all the fantastic articles of his apparel, the honest attorney gave an ominous grunt, replaced the papers in one of the deep pockets of his long-skirted coat, twice nodded his head with contemptuous significance, and then, without another word--walked out of the room. it was his first visit to those chambers, and his last. joseph yates lost his client, before he could even learn his name; but in no way influenced by the occurrence he maintained his reputation for faultless taste in dress, and when he had raised himself to the bench, he was amongst the judges of his day all that revell reynolds was amongst the london physicians of a later date. living in the midst of the fierce contentions which distracted ireland in the days of our grandfathers, john toler, first earl of norbury, would not have escaped odium and evil repute, had he been a merciful man and a scrupulous judge; but in consequence of failings and wicked propensities, which gave countenance to the slanders of his enemies and at the same time earned for him the distrust and aversion of his political coadjutors, he has found countless accusers and not a single vindicator. resembling george jeffreys in temper and mental capacity, he resembled him also in posthumous fame. a shrewd, selfish, overbearing man, possessing wit which was exercised with equal promptitude upon friends and foes, he alternately roused the terror and the laughter of his audiences. at the bar and in the irish house of commons he was alike notorious as jester and bully; but he was a courageous bully, and to the last was always as ready to fight with bullets as with epigrams, and though his humor was especially suited to the taste and passions of the rabble, it sometimes convulsed with merriment those who were shocked by its coarseness and brutality. having voted for the abolition of the irish parliament, the right honorable john toler was prepared to justify his conduct with hair-triggers or sarcasms. to the men who questioned his patriotism he was wont to answer, "name any hour before my court opens to-morrow," but to the patriotic irish lady who loudly charged him in a crowded drawing-room with having sold his country, he replied, with an affectation of cordial assent, "certainly, madam, i have sold my country. it was very lucky for me that i had a country to sell--i wish i had another." on the bench he spared neither counsel nor suitors, neither witnesses nor jurors. when daniel o'connell, whilst he was conducting a cause in the irish court of common pleas, observed, "pardon me, my lord, i am afraid your lordship does not apprehend me;" the chief justice (alluding to a scandalous and false report that o'connell had avoided a duel by surrendering himself to the police) retorted, "pardon me also; no one is more easily apprehended than mr. o'connell"--(a pause--and then with emphatic slowness of utterance)--"whenever he wishes to be apprehended." it is _said_ that when this same judge passed sentence of death on robert emmett, he paused when he came to the point where it is usual for a judge to add in conclusion, "and may the lord have mercy on your soul!" and regarded the brave young man with searching eyes. for a minute there was an awful silence in the court; the bar and the assembled crowd supposing that the chief justice had paused so that a few seconds of unbroken stillness might add to the solemnity of his last words. the disgust and indignation of the spectators were beyond the power of language, when they saw a smile of brutal sarcasm steal over the face of the chief justice as he rose from his seat of judgment without uttering another word. whilst the state prosecutions were going forward, lord norbury appeared on the bench in a costume that accorded ill with the gravity of his office. the weather was intensely hot; and whilst he was at his morning toilet the chief justice selected from his wardrobe the dress which was most suited to the sultriness of the air. the garb thus selected for its coolness was a dress which his lordship had worn at a masquerade ball, and consisted of a green tabinet coat decorated with huge mother-of-pearl buttons, a waistcoat of yellow relieved by black stripes, and buff breeches. when he first entered the court, and throughout all the earlier part of the proceedings against a party of rebels, his judicial robes altogether concealed this grotesque attire; but unfortunately towards the close of the sultry day's work, lord norbury--oppressed by the stifling atmosphere of the court, and forgetting all about the levity as well as the lightness of his inner raiment--threw back his judicial robe and displayed the dress which several persons then present had seen him wear at lady castlereagh's ball. ere the spectators recovered from their first surprise, lord norbury, quite unconscious of his indecorum, had begun to pass sentence of death on a gang of prisoners, speaking to them in a solemn voice that contrasted painfully with the inappropriateness of his costume. in the following bright and picturesque sentence, dr. dibdin gives a life-like portrait of erskine, whose personal vanity was only equalled by the egotism which often gave piquancy to his orations, and never lessened their effect:--"cocked hats and ruffles, with satin small-clothes and silk stockings, at this time constituted the usual evening dress. erskine, though a good deal shorter than his brethren, somehow always seemed to take the lead both in pace and in discourse, and shouts of laughter would frequently follow his dicta. among the surrounding promenaders, he and the one-armed mingay seemed to be the main objects of attraction. towards evening, it was the fashion for the leading counsel to promenade during the summer in the temple gardens, and i usually formed one in the thronging mall of loungers and spectators. i had analysed blackstone, and wished to publish it under a dedication to mr. erskine. having requested the favor of an interview, he received me graciously at breakfast before nine, attired in the smart dress of the times, a dark green coat, scarlet waistcoat, and silk breeches. he left his coffee, stood the whole time looking at the chart i had cut in copper, and appeared much gratified. on leaving him, a chariot-and-four drew up to wheel him to some provincial town on a special retainer. he was then coining money as fast as his chariot wheels rolled along." erskine's advocacy was marked by that attention to trifles which has often contributed to the success of distinguished artists. his special retainers frequently took him to parts of the country where he was a stranger, and required him to make eloquent speeches in courts which his voice had never tested. it was his custom on reaching the town where he would have to plead on the following day, to visit the court over-night, and examine its arrangements, so that when the time for action arrived he might address the jury from the most favorable spot in the chamber. he was a theatrical speaker, and omitted no pains to secure theatrical effect. it was noticed that he never appeared within the bar until the _cause célèbre_ had been called; and a buzz of excitement and anxious expectation testified the eagerness of the assembled crowd to _see_, as well as to hear, the celebrated advocate. every article of his bar costume received his especial consideration; artifice could be discerned in the modulations of his voice, the expressions of his countenance, and the movements of his entire body; but the coldest observer did not detect the artifice until it had stirred his heart. rumor unjustly asserted that he never uttered an impetuous peroration which he had not frequently rehearsed in private before a mirror. about the cut and curls of his wigs, their texture and color, he was very particular: and the hands which he extended in entreaty towards british juries were always cased in lemon-colored kid gloves. erskine was not more noticeable for the foppishness of his dress than was lord kenyon for a sordid attire. whilst he was a leading advocate within the bar, lord kenyon's ordinary costume would have disgraced a copying clerk; and during his later years, it was a question amongst barristers whether his breeches were made of velvet or leather. the wits maintained that when he kissed hands upon his elevation to the attorney's place, he went to court in a second-hand suit purchased from lord stormont's _valet_. in the letter attributed to him by a clever writer in the 'rolliad,' he is made to say--"my income has been cruelly estimated at seven, or, as some will have it, eight thousand pounds per annum. i shall save myself the mortification of denying that i am rich, and refer you to the constant habits and whole tenor of my life. the proof to my friends is easy. my tailor's bill for the last fifteen years is a record of the most indisputable authority. malicious souls may direct you, perhaps, to lord stormont's _valet de chambre_, and can vouch the anecdote that on the day when i kissed hands for my appointment to the office of attorney general, i appeared in a laced waistcoat that once belonged to his master. i bought the waistcoat, but despise the insinuation; nor is this the only instance in which i am obliged to diminish my wants and apportion them to my very limited means. lady k---- will be my witness that until my last appointment i was an utter stranger to the luxury of a pocket-handkerchief." the pocket-handkerchief which then came into his possession was supposed to have been found in the pocket of the second-hand waistcoat; and jekyll always maintained that, as it was not considered in the purchase, it remained the valet's property, and did not pass into the lawyer's rightful possession. this was the only handkerchief which lord kenyon is said to have ever possessed, and lord ellenborough alluded to it when, in a conversation that turned upon the economy which the income-tax would necessitate in all ranks of life, he observed--"lord kenyon, who is not very nice, intends to meet the crisis by laying down his handkerchief." of his lordship's way of getting through seasons of catarrh without a handkerchief, there are several stories that would scarcely please the fastidious readers of this volume. of his two wigs (one considerably less worn than the other), and of his two hats (the better of which would not have greatly disfigured an old clothesman, whilst the worse would have been of service to a professional scarecrow), lord kenyon took jealous care. the inferior wig was always worn with the better hat, and the more dilapidated hat with the superior wig; and it was noticed that when he appeared in court with the shabbier wig he never removed his _chapeau_; whereas, on the days when he sat in his more decent wig, he pushed his old cocked hat out of sight. in the privacy of his house and in his carriage, whenever he traveled beyond the limits of town, he used to lay aside wig and hat, and cover his head with an old red night-cap. concerning his great-coat, the original blackness of which had been tempered by long usage into a fuscous green, capital tales were fabricated. the wits could not spare even his shoes. "once," dr. didbin gravely narrated, "in the case of an action brought for the non-fulfillment of a contract on a large scale for shoes, the question mainly was, whether or not they were well and soundly made, and with the best materials. a number of witnesses were called, one of them, a first-rate character in the gentle craft, being closely questioned, returned contradictory answers, when the chief justice observed, pointing to his own shoes, which were regularly bestridden by the broad silver buckle of the day, 'were the shoes anything like these?' 'no, my lord,' replied the evidence, 'they were a good deal better and more genteeler.'" dr. didbin is at needless pains to assure his readers that the shoemaker's answer was followed by uproarious laughter. part v. music. chapter xxv. the piano in chambers. in the inns of court, even more often than in the colleges of oxford and cambridge, musical instruments and performances are regarded by severe students with aversion and abhorrence. mr. babbage will live in peace and charity with the organ-grinders who are continually doing him an unfriendly turn before the industrious conveyancer on the first floor will pray for the welfare of 'that fellow upstairs' who daily practises the flute or cornopean from a.m. to p.m. the 'wandering minstrels' and their achievements are often mentioned with respect in the western drawing-rooms of london; but if the gentlemen who form that distinguished _troupe_ of amateur performers wish to sacrifice their present popularity and take a leading position amongst the social nuisances of the period, they should migrate from the district which delights to honor them to chambers in old square, lincoln's inn, and give morning concerts every day of term time. working lawyers feel warmly on this subject, maintaining that no man should be permitted to be an _amateur_-barrister and an _amateur_-musician at the same time, and holding that law-students with a turn for wind-instruments should, like vermin, be hunted down and knocked on the head--without law. strange stories might be told of the discords and violent deeds to which music has given rise in the four inns. in the last century many a foolish fellow was 'put up' at ten paces, because he refused to lay down an ophicleide; even as late as george iv.'s time death has followed from an inordinate addiction to the violin; and it was but the other day that the introduction of a piano into a house in carey street led to the destruction of three close and warm friendships. so alive are lawyers to the frightful consequences of a wholesale exhibition of melodious irritants, that a natural love of order and desire for self-preservation has prompted them to raise numerous obstructions to the free development of musical science in their peculiar localities of town. in the inns of court and chancery lane professional etiquette forbids barristers and solicitors to play upon organs, harmoniums, pianos, violins, or other stringed instruments, drums, trumpets, cymbals, shawms, bassoons, triangles, castanets or any other bony devices for the production of noise, flageolets, hautboys, or any other sort of boys--between the hours of a.m. and p.m. and this rule of etiquette is supported by various special conditions introduced into the leases by which the tenants hold much of the local house property. under some landlords, a tenant forfeits his lease if he indulges in any pursuit that causes annoyance to his immediate neighbors; under others, every occupant of a set of chambers binds himself not to play any musical instrument therein, save between the hours of a.m. and p.m.; and in more than one clump of chambers, situated within a stone's throw from chancery lane, glee-singing is not permitted at any period of the four-and-twenty hours. that the pursuit of harmony is a dangerous pastime for young lawyers cannot be questioned, although a long list might be given of cases where musical barristers have gained the confidence of many clients, and eventually raised themselves to the bench. a piano is a treacherous companion for the student who can touch, it deftly--dangerous as an idle friend, whose wit is ever brilliant; fascinating as a beautiful woman, whose smile is always fresh; deceptive as the drug which seems to invigorate, whilst in reality it is stealing away the intellectual powers. every persevering worker knows how large a portion of his hard work has been done 'against the grain,' and in spite of strong inclinations to indolence--in hours when pleasant voices could have seduced him from duty, and any plausible excuse for indulgence would have been promptly accepted. in the piano these pleasant voices are constantly present, and it can always show good reason--why reluctant industry should relax its exertions. chapter xxvi. the battle of the organs. sir thomas more and lord bacon--the two most illustrious laymen who have held the great seal of england--were notable musicians; and many subsequent keepers and chancellors are scarcely less famous for love of harmonious sounds than for judicial efficiency. lord keeper guildford was a musical amateur, and notwithstanding his low esteem of literature condescended to write about melody. lord jeffreys was a good after-dinner vocalist, and was esteemed a high authority on questions concerning instrumental performance. lord camden was an operatic composer; and lord thurlow studied thorough-bass, in order that he might direct the musical exercises of his children. in moments of depression more's favorite solace was the viol; and so greatly did he value musical accomplishments in women, that he not only instructed his first and girlish wife to play on various instruments, but even prevailed on the sour mistress alice middleton "to take lessons on the lute, the cithara, the viol, the monochord, and the flute, which she daily practised to him." but more's love of music was expressed still more forcibly in the zeal with which he encouraged and took part in the choral services of chelsea church. throughout his residence at chelsea, sir thomas was a regular attendant at the church, and during his tenure of the seals he not only delighted to chant the appointed psalms, but used to don a white surplice, and take his place among the choristers. having invited the duke of norfolk to dine with him, the chancellor prepared himself for the enjoyment of that great peer's society by attending divine service, and he was still occupied with his religious exercises when his grace of norfolk entered the church, and to his inexpressible astonishment saw the keeper of the king's conscience in the flowing raiment of a chorister, and heard him give "glory to god in the highest!" as though he were a hired singer. "god's body! god's body! my lord chancellor a parish clerk?--a parish clerk?" was the duke's testy expostulation with the chancellor. whereupon more, with gentle gravity, answered, "nay; your grace may not think that the king--your master and mine--will with me, for serving his master, be offended, and thereby account his office dishonored." not only was it more's custom to sing in the church choir, but he used also to bear a cross in religious processions; and on being urged to mount horse when he followed the rood in rogation week round the parish boundaries, he answered, "it beseemeth not the servant to follow his master prancing on a cock-horse, his master going on foot." few incidents in sir thomas more's remarkable career point more forcibly to the vast difference between the social manners of the sixteenth century and those of the present day. if lord chelmsford were to recreate himself with leading the choristers in margaret street, and after service were seen walking homewards in an ecclesiastical dress, it is more than probable that public opinion would declare him a fit companion for the lunatics of whose interests he has been made the official guardian. society felt some surprise as well as gratification when sir roundell palmer recently published his 'book of praise;' but if the attorney general, instead of printing his select hymns had seen fit to exemplify their beauties with his own voice from the stall of a church-singer, the piety of his conduct would have scarcely reconciled lord palmerston to its dangerous eccentricity. amongst elizabethan lawyers, chief justice dyer was by no means singular for his love of music, though whetstone's lines have given exceptional celebrity to his melodious proficiency:-- "for publique good, when care had cloid his minde, the only joye, for to repose his sprights, was musique sweet, which showd him well inclind; for he doth in musique much delight, a conscience hath disposed to do most right: the reason is, her sound within our eare, a sympathie of heaven we thinke we heare." like james dyer, francis bacon found music a pleasant and salutary pastime, when he was fatigued by the noisy contentions of legal practice or by strenuous application to philosophic pursuits. a perfect master of the science of melody, lord bacon explained its laws with a clearness which has satisfied competent judges that he was familiar with the practice as well as the theories of harmony; but few passages of his works display more agreeably his personal delight and satisfaction in musical exercise and investigation than that section of the 'natural history,' wherein he says, "and besides i practice as i do advise; which is, after long inquiry of things immersed in matter, to interpose some subject which is immateriate or less materiate; such as this of sounds: to the end that the intellect may be rectified and become not partial." a theorist as well as performer, the lord keeper guilford enunciated his views regarding the principles of melody in 'a philosophical essay of musick, directed to a friend'--a treatise that was published without the author's name, by martin, the printer to the royal society, in the year , at which time the future keeper was chief justice of the common pleas. the merits of the tract are not great; but it displays the subtlety and whimsical quaintness of the musical lawyer, who performed on several instruments, was very vain of a feeble voice, and used to attribute much of his professional success to the constant study of music that marked every period of his life. "i have heard him say," roger records, "that if he had not enabled himself by these studies, and particular his practice of music upon his bass or lyra viol (which he used to touch lute-fashion upon his knee), to divert himself alone, he had never been a lawyer. his mind was so airy and volatile he could not have kept his chamber if he must needs be there, staked down purely to the drudgery of the law, whether in study or practice; and yet upon such a leaden proposition, so painful to brisk spirits, all the success of the profession, regularly pursued, depends." his first acquaintance with melodious art was made at cambridge, where in his undergraduate days he took lessons on the viol. at this same period he "had the opportunity of practice so much in his grandfather's and father's families, where the entertainment of music in full concert was solemn and frequent, that he outdid all his teachers, and became one of the neatest violinists of his time." scarcely in consistence with this declaration of the lord keeper's proficiency on the violin is a later passage of the biography, where roger says that his brother "attempted the violin, being ambitious of the prime part in concert, but soon found that he began such a difficult art too late." it is, however, certain that the eminent lawyer in the busiest passages of his laborious life found time for musical practice, and that besides his essay on music, he contributed to his favorite art several compositions which were performed in private concert-rooms. sharing in the musical tastes of his family, roger north, the biographer, was the _friend_ who used to touch the harpsichord that stood at the door of the lord keeper's bedchamber; and when political changes had extinguished his hopes of preferment, he found consolation in music and literature. retiring to his seat in norfolk, roger fitted up a concert-room with instruments that roused the astonishment of country squires, and an organ that was extolled by critical professors for the sweetness of its tones. in that seclusion, where he lived to extreme old age, the lettered lawyer composed the greater part of those writings which have rendered him familiar to the present generation. of his 'memoirs of musick,' readers are not accustomed to speak so gratefully as of his biographies; but the curious sketch which dr. rimbault edited and for the first time published in , is worthy of perusal, and will maintain a place on the shelves of literary collectors by the side of his brother's 'essay.' in that treatise roger alludes to a contest which in the reigns of charles ii. and james ii. agitated the musicians of london, divided the templars into two hostile parties, and for a considerable time gave rise to quarrels in every quarter of the town. all this disturbance resulted from "a competition for an organ in the temple church, for which the two competitors, the best artists in europe, smith and harris, were but just not ruined." the struggle thus mentioned in the 'memoirs of musick' is so comic an episode in the story of london life, and has been the occasion of so much error amongst writers, that it claims brief restatement in the present chapter. in february, , the benchers of the temples, wishing to obtain for their church an organ of superlative excellence, invited father smith and renatus harris to compete for the honor of supplying the instrument. the masters of the benchers pledged themselves that "if each of these excellent artists would set up an organ in one of the halls belonging to either of the societies, they would have erected in their church that which, in the greatest number of excellencies, deserved the preference." for more than twenty years father smith had been the first organ-builder in england; and the admirable qualities of his instruments testify to his singular ability. a german artist (in his native country called bernard schmidt, but in london known as father smith), he had established himself in the english capital as early as the summer of ; and gaining the cordial patronage of charles ii., he and his two grand-nephews soon became leaders of their craft. father smith built organs for westminster abbey, for the church of st. giles-in-the-fields, for st. margaret's church, westminster, for durham cathedral, and for other sacred buildings. in st. paul's cathedral he placed the organ which wren disdainfully designated a "box of whistles;" and dying in , he left his son-in-law, christopher schreider, to complete the organ which still stands in the chapel of trinity college, cambridge. but notwithstanding his greatness, father smith had rivals; his first rival being harris the elder, who died in , his second being renatus harris, or harris the younger. the elder harris never caused smith much discomfort; but his son, renatus, was a very clever fellow, and a strong party of fashionable _connoisseurs_ declared that he was greatly superior to the german. such was the position of these two rivals when the benchers made their proposal, which was eagerly accepted by the artificers, each of whom saw in it an opportunity for covering his antagonist with humiliation. the men went to work: and within fourteen months their instruments were ready for competition. smith finished work before harris, and prevailed on the benchers to let him place his organ in the temple church, well knowing that the powers of the instrument could be much more readily and effectively displayed in the church than in either of the dining-halls. the exact site where he fixed his organ is unknown, but the careful author of 'a few notes on the temple organ, ,' is of opinion that it was put up "on the screen between the round and oblong churches--the position occupied by the organ until the present organ-chamber was built, and the organ removed there during the progress of the complete restoration of the church in the year ." no sooner had harris finished his organ, than, following father smith's example, he asked leave of the benchers to erect it within the church. harris's petition to this effect bears date may , ; and soon afterwards the organ was "set up in the church on the south side of the communion table." both organs being thus stationed under the roof of the church, the committee of benchers appointed to decide on their relative merits declared themselves ready to listen. the trial began, but many months--ay, some years--elapsed ere it came to an end. on either side the credit of the manufacturer was sustained by execution of the highest order of art. father smith's organ was handled alternately by purcell and dr. blow; and draghi, the queen's organist, did his best to secure a verdict for renatus harris. of course the employment of these eminent musicians greatly increased the number of persons who felt personal interest in the contest. whilst the pupils and admirers of purcell and blow were loud in declaring that smith's organ ought to win, draghi's friends were equally sure that the organ touched by his expert fingers ought not to lose. discussion soon became violent; and in every profession, clique, coterie of the town, supporters of smith wrangled with supporters of harris. like the battle of the gauges in our time, the battle of the organs was the grand topic with every class of society, at court and on 'change, in coffee-houses and at ordinaries. again and again the organs were tested in the hearing of dense and fashionable congregations; and as often the judicial committee was unable to come to a decision. the hesitation of the judges put oil upon the fire; for smith's friends, indignant at the delay, asserted that certain members of the committee were bound to harris by corrupt considerations--an accusation that was retorted by the other side with equal warmth and want of justice. after the squabble had been protracted through many months, harris created a diversion by challenging father smith to make additional reed-stops within a given time. the challenge was accepted; and forthwith the father went to work and made vox humana, cremorne, double courtel, or double bassoon, and other stops. a day was appointed for the renewal of the contest; but party feeling ran so high, that during the night preceding the appointed day a party of hot-headed harrissians broke into the temple church, and cut smith's bellows--so that on the following morning his organ was of no more service than an old linen-press. a row ensued; and in the ardor of debate swords were drawn. in june, , the benchers of the middle temple, made a written declaration in favor of father smith, and urged that his organ should be forthwith accepted. strongly and rather discourteously worded, this declaration gave offence to the benchers of the inner temple, who regarded it as an attempt at dictation; and on june , , they recommended the appointment of another committee with powers to decide the contest. declining to adopt this suggestion, the middle temple benchers reiterated their high opinion of smith's instrument. on this the battle of the organs became a squabble between the two temples; and the outside public, laughing over the quarrel of the lawyers, expressed a hope that honest men would get their own since the rogues had fallen out. at length, when the organ-builders had well-nigh ruined each other, and the town had grown weary of the dispute, the inner temple yielded somewhere about the beginning of --at an early date of which year smith received a sum of money in part payment for his organ. on may th of the same year, mr. pigott was appointed organist. after its rejection by the temple, renatus harris divided his organ into two, and having sent the one part to the cathedral of christ's church, dublin, he set up the other part in the church of st. andrew, holborn. three years after his disappointment, renatus harris was tried at the old bailey for a political offence, the nature of which may be seen from the following entry in narcissus luttrell's diary:--"april, . the sessions have been at the old bailey, where these persons, renatus harris, john watts, william rutland, henry gandy, and thomas tysoe, were tried at the old bailey for setting up policies of insurance that dublin would be in the hands of some other king than their present majesties by christmas next: the jury found them guilty of a misdemeanor." for this offence renatus harris was fined £ , and was required to give security for his good conduct until christmas. an erroneous tradition assigns to lord jeffreys the honor of bringing the battle of the organs to a conclusion, and writers improving upon this tradition, have represented that jeffreys acted as sole umpire between the contendants. in his 'history of music,' dr. burney, to whom the prevalence of this false impression is mainly due, observes--"at length the decision was left to lord chief justice jeffries, afterwards king james the second's pliant chancellor, who was of that society (the inner temple), and he terminated the controversy in favor of father smith; so that harris's organ was taken away without loss of reputation, having so long pleased and puzzled better judges than jefferies." careful inquirers have ascertained that harris's organ did not go to wolverhampton, but to dublin and st. andrew's holborn, part of it being sent to the one, and part to the other place. it is certain that jeffrys was not chosen to act as umpire in , for the benchers did not make their original proposal to the rival builders until february, ; and years passed between that date and the termination of the squabble. when burney wrote:--"at length the decision was left to lord chief justice jefferies, _afterwards king james ii.'s pliant chancellor_," the musician was unaware that the squabble was still at white heat whilst jeffreys occupied the woolsack. on his return from the western campaign, jeffreys received the seals in september, , whereas the dispute about the organs did not terminate till the opening of , or at earliest till the close of . there is no authentic record in the archives of the temples which supports, or in any way countenances, the story that jeffreys made choice of smith's instrument; but it is highly probable that the lord chancellor exerted his influence with the inner temple (of which society he was a member), and induced the benchers, for the sake of peace, to yield to the wishes of the middle temple. it is no less probable that his fine musical taste enabled him to see that the middle temple benchers were in the right, and gave especial weight to his words when he spoke against harris's instrument. though jeffreys delighted in music, he does not seem to have held its professors in high esteem. in the time of charles ii. musical artists of the humbler grades liked to be styled 'musitioners;' and on a certain occasion, when he was sitting as recorder for the city of london, george jeffreys was greatly incensed by a witness who, in a pompous voice, called himself a musitioner. with a sneer the recorder interposed--"a musitioner! i thought you were a fiddler!" "i am a musitioner," the violinist answered, stoutly. "oh, indeed," croaked jeffreys. "that is very important--highly important--extremely important! and pray, mr. witness, what is the difference between a musitioner and a fiddler?" with fortunate readiness the man answered, "as much, sir, as there is between a pair of bag-pipes and a recorder." chapter xxvii. a thickness in the throat. the date is september, , and the room before us is a drawing-room in a pleasant house at brighton. the hot sun is beating down on cliff and terrace, beach and pier, on the downs behind the town and the sparkling sea in front. the brightness of the blue sky is softened by white vapor that here and there resembles a vast curtain of filmy gauze, but nowhere has gathered into visible masses of hanging cloud. in the distance the sea is murmuring audibly, and through the screened windows, together with the drowsy hum of the languid waves, comes a light breeze that is invigorating, notwithstanding its sensible warmth. besides ourselves there are but two people in the room: a gentlewoman who has said farewell to youth, but not to feminine grade and delicacy; and an old man, who is lying on a sofa near one of the open windows, whilst his daughter plays passages of handel's music on the piano-forte. the old man wears the dress of an obsolete school of english gentlemen; a large brown wig with three rows of curls, the lowest row resting on the curve of his shoulders; a loose grey coat, notable for the size of its cuffs and the bigness of its heavy buttons; ruffles at his wrists, and frills of fine lace below his roomy cravat. these are the most conspicuous articles of his costume, but not the most striking points of his aspect. over his huge, pallid, cadaverous, furrowed face there is an air singularly expressive of exhaustion and power, of debility and latent strength--an air that says to sensitive beholders, "this prostrate veteran was once a giant amongst giants; his fires are dying out; but the old magnificent courage and ability will never altogether leave him until the beatings of his heart shall have quite ceased: touch him with foolishness or disrespect, and his rage will be terrible." standing here we can see his prodigious bushy eyebrows, that are as white as driven snow, and under them we can see the large black eyes, beneath the angry fierceness of which hundreds of proud british peers, assembled in their council-chamber, have trembled like so many whipped schoolboys. there is no lustre in them now, and their habitual expression is one of weariness and profound indifference to the world--a look that is deeply pathetic and depressing, until some transient cause of irritation or the words of a sprightly talker rouse him into animation. but the most noticeable quality of his face is its look of extreme age. only yesterday a keen observer said of him, "lord thurlow is, i believe, only seventy-four; and from his appearance i should think him a hundred years old." so quiet is the reclining form, that the pianist thinks her father must be sleeping. turning on the music-stool to get a view of his countenance, and to satisfy herself as to his state, she makes a false note, when, quick as the blunder, the brown wig turns upon the pillow--the furrowed face is presented to her observation, and an electric brightness fills the big black eyes, as the veteran, with deep rolling tones, reproves her carelessness:--"what are you doing?--what are you doing? i had almost forgotten the world. play that piece again." twelve months more--and the lady will be playing handel's music on that same instrument; but the old man will not be a listener. from brighton, in , let readers transport themselves to canterbury in , and let them enter a barber's shop, hard by canterbury cathedral. it is a primitive shop, with the red and white pole over the door, and a modest display of wigs and puff-boxes in the window. a small shop, but, notwithstanding its smallness, the best shop of its kind in canterbury; and its lean, stiff, exceedingly respectable master is a man of good repute in the cathedral town. his hands have, ere now, powdered the archbishop's wig, and he is specially retained by the chief clergy of the city and neighborhood to keep their false hair in order, and trim the natural tresses of their children. not only have the dignitaries of the cathedral taken the worthy barber under their special protection, but they have extended to his little boy charles, a demure, prim lad, who is at this present time a pupil in the king's school, to which academy clerical interest gained him admission. the lad is in his fourteenth year; and dr. osmund beauvoir, the master of the school, gives him so good a character for industry and dutiful demeanor, that some of the cathedral ecclesiastics have resolved to make the little fellow's fortune--by placing him in the office of a chorister. there is a vacant place in the cathedral choir; and the boy who is lucky enough to receive the appointment will be provided for munificently. he will forthwith have a maintenance, and in course of time his salary will be £ per annum. during the last fortnight the barber has been in great and constant excitement--hoping that his little boy will obtain this valuable piece of preferment; persuading himself that the lad's thickness of voice, concerning which the choir-master speaks with aggravating persistence, is a matter of no real importance; fearing that the friends of another contemporary boy, who is said by the choir-master to have an exceedingly mellifluous voice, may defeat his paternal aspirations. the momentous question agitates many humble homes in canterbury; and whilst mr. abbott, the barber, is encouraged to hope the best for his son, the relatives and supporters of the contemporary boy are urging him not to despair. party spirit prevails on either side--mr. abbott's family associates maintaining that the contemporary boy's higher notes resemble those of a penny whistle; whilst the contemporary boy's father, with much satire and some justice, murmurs that "old abbott, who is the gossip-monger of the parsons, wants to push his son into a place for which there is a better candidate." to-day is the eventful day when the election will be made. even now, whilst abbott, the barber, is trimming a wig at his shop window, and listening to the hopeful talk of an intimate neighbor, his son charley is chanting the old hundredth before the whole chapter. when charley has been put through his vocal paces, the contemporary boy is requested to sing. whereupon that clear-throated competitor, sustained by justifiable self-confidence and a new-laid egg which he had sucked scarcely a minute before he made his bow to their reverences, sings out with such richness and compass that all the auditors recognize his great superiority. ere ten more minutes have passed charley abbot knows that he has lost the election; and he hastens from the cathedral with quick steps. running into the shop he gives his father a look that tells the whole story of--failure, and then the little fellow, unable to command his grief, sits down upon the floor and sobs convulsively. failure is often the first step to eminence. had the boy gained the chorister's place, he would have a cathedral servant all his days. having failed to get it, he returned to the king's school, went a poor scholar to oxford, and fought his way to honor. he became chief justice of the king's bench, and a peer of the realm. towards the close of his honorable career lord tenterden attended service in the cathedral of canterbury, accompanied by mr. justice richardson. when the ceremonial was at an end the chief justice said to his friend--"do you see that old man there amongst the choristers? in him, brother richardson, behold the only being i ever envied: when at school in this town we were candidates together for a chorister's place; he obtained it; and if i had gained my wish he might have been accompanying you as chief justice, and pointing me out as his old school-fellow, the singing man." part vi. amateur theatricals. chapter xxviii. actors at the bar. some years since the late sergeant wilkins was haranguing a crowd of enlightened electors from the hustings of a provincial borough, when a stentorian voice exclaimed, "go home, you rope-dancer!" disdaining to notice the interruption, the orator continued his speech for fifty seconds, when the same voice again cried out, "go home, you rope-dancer!" a roar of laughter followed the reiteration of the insult; and in less than two minutes thrice fifty unwashed blackguards were roaring with all the force of their lungs, "ah-h-h--go home, you rope-dancer!" not slow to see the moaning of the words, the unabashed lawyer, who in his life had been a dramatic actor, replied with his accustomed readiness and effrontery. a young man unacquainted with mobs would have descanted indignantly and with many theatrical flourishes on the dignity and usefulness of the player's vocation; an ordinary demagogue would have frankly admitted the discourteous impeachment, and pleaded in mitigation that he had always acted in leading parts and for high salaries. sergeant wilkins took neither of those courses, for he knew his audience, and was aware that his connection with the stage was an affair about which he had better say as little as possible. instead of appealing to their generosity, or boasting of his histrionic eminence, he threw himself broadly on their sense of humor. drawing himself up to his full height, the big, burly man advanced to the marge of the platform, and extending his right hand with an air of authority, requested silence by the movement of his arm. the sign was instantly obeyed; for having enjoyed their laugh, the multitude wished for the rope-dancer's explanation. as soon as the silence was complete, he drew back two paces, put himself in an oratorical _pose_, as though he were about to speak, and then, disappointing the expectations of the assembly, deliberately raised forwards and upwards the skirts of his frock-coat. having thus arranged his drapery he performed a slow gyration--presenting his huge round shoulders and unwieldy legs to the populace. when his back was turned to the crowd, he stooped and made a low obeisance to his vacant chair, thereby giving the effect of caricature to the outlines of his most protuberant and least honorable part. this pantomime lasted scarcely a minute; and before the spectators could collect themselves to resent so extraordinary an affront, the sergeant once again faced them, and in a clear, rich, jovial tone exclaimed, "_he_ called me a rope-dancer!--after what you have seen, do you believe him?" with the exception of the man who started the cry, every person in the dense multitude was convulsed with laughter; and till the end of the election no turbulent rascal ventured to repeat the allusion to the sergeant's former occupation. at a moment of embarrassment, mr. disraeli, in the course of one of his youthful candidatures, created a diversion in his favor by telling a knot of unruly politicians that he _stood on his head_. with less wit, and much less decency, but with equal good fortune, sergeant wilkins took up his position on a baser part of his frame. the electors who respected mr. wilkins because he was a successful barrister, whilst they reproached him with having been a stage-player, were unaware how close an alliance exists between the art of the actor and the art of the advocate. to lawyers of every grade and speciality the histrionic faculty is a useful power; but to the advocate who wishes to sway the minds of jurors it is a necessary endowment. comprising several distinct abilities, it not only enables the orator to rouse the passions and to play on the prejudices of his hearers, but it preserves him from the errors of judgment, tone, emphasis--in short, from manifold blunders of indiscretion and tact by which verdicts are lost quite as often as through defect of evidence and merit. like the dramatic performer, the court-speaker, especially at the common law bar, has to assume various parts. not only should he know the facts of his brief, but he should thoroughly identify himself with the client for whom his eloquence is displayed. on the theatrical stage mimetic business is cut up into specialities, men in most cases filling the parts of men, whilst actresses fill the parts of women; the young representing the characteristics of youth, whilst actors with special endowments simulate the qualities of old age; some confining themselves to light and trivial characters, whilst others are never required to strut before the scenes with hurried paces, or to speak in phrases that lack dignity and fine sentiment. but the popular advocate must in turn fill every _rôle_. if childish simplicity be his client's leading characteristic, his intonations will express pliancy and foolish confidence; or if it is desirable that the jury should appreciate his client's honesty of purpose, he speaks with a voice of blunt, bluff, manly frankness. whatever quality the advocate may wish to represent as the client's distinctive characteristic, it must be suggested to the jury by mimetic artifice of the finest sort. speaking of a famous counsel, an enthusiastic juryman once said to this writer--"in my time i have heard sir alexander in pretty nearly every part: i've heard him as an old man and a young woman; i have heard him when he has been a ship run down at sea, and when he has been an oil-factory in a state of conflagration; once, when i was foreman of a jury, i saw him poison his intimate friend, and another time he did the part of a pious bank director in a fashion that would have skinned the eyelids of exeter hall: he ain't bad as a desolate widow with nine children, of which the eldest is under eight years of age; but if ever i have to listen to him again, i should like to see him as a young lady of good connexions who has been seduced by an officer of the guards." in the days of his forensic triumphs henry brougham was remarkable for the mimetic power which enabled him to describe friend or foe by a few subtle turns of the voice. at a later period, long after he had left the bar, in compliance with a request that he would return thanks for the bridesmaids at a wedding breakfast, he observed, that "doubtless he had been selected for the task in consideration of his youth, beauty, and innocence." the laughter that followed this sally was of the sort which in poetic phraseology is called inextinguishable; and one of the wedding guests who heard the joke and the laughter, assures this writer that the storm of mirthful applause was chiefly due to the delicacy and sweetness of the intonations by which the speaker's facile voice, with its old and once familiar art, made the audience realize the charms of youth, beauty and innocence--charms which, so far as the lawyer's wrinkled visage was concerned, were conspicuous by their absence. eminent advocates have almost invariably possessed qualities that would have made them successful mimics on the stage. for his mastery of oratorical artifices alexander wedderburn was greatly indebted to sheridan, the lecturer on elocution, and to macklin, the actor, from both of whom he took lessons; and when he had dismissed his teachers and become a leader of the english bar he adhered to their rules, and daily practised before a looking-glass the facial tricks by which macklin taught him to simulate surprise or anger, indignation or triumph. erskine was a perfect master of dramatic effect, and much of his richly-deserved success was due to the theatrical artifices with which he played upon the passions of juries. at the conclusion of a long oration he was accustomed to feign utter physical prostration, so that the twelve gentlemen in the box, in their sympathy for his sufferings and their admiration for his devotion to the interests of his client, might be impelled by generous emotion to return a favorable verdict. thus when he defended hardy, hoarseness and fatigue so overpowered him towards the close of his speech, that during the last ten minutes he could not speak above a whisper, and in order that his whispers might be audible to the jury, the exhausted advocate advanced two steps nearer to their box, and then extended his pale face to their eager eyes. the effect of the artifice on the excited jury is said to have been great and enduring, although they were speedily enlightened as to the real nature of his apparent distress. no sooner had the advocate received the first plaudits of his theatre on the determination of his harangue, than the multitude outside the court, taking up the acclamations which were heard within the building, expressed their feelings with such deafening clamor, and with so many signs of riotous intention, that erskine was entreated to leave the court and soothe the passions of the mob with a few words of exhortation. in compliance with this suggestion he left the court, and forthwith addressed the dense out-door assembly in clear, ringing tones that were audible in ludgate hill, at one end of the old bailey, and to the billowy sea of human heads that surged round st. sepulchre's church at the other extremity of the dismal thoroughfare. at the subsequent trial of john horne tooke, sir john scott, unwilling that erskine should enjoy a monopoly of theatrical artifice, endeavored to create a diversion in favor of the government by a display of those lachrymose powers, which byron ridiculed in the following century. "i can endure anything but an attack on my good name," exclaimed the attorney general, in reply to a criticism directed against his mode of conducting the prosecution; "my good name is the little patrimony i have to leave to my children, and, with god's help, gentlemen of the jury, i will leave it to them unimpaired." as he uttered these words tears suffused the eyes which, at a later period of the lawyer's career, used to moisten the woolsack in the house of lords-- "because the catholics would not rise, in spite of his prayers and his prophecies." for a moment horne tooke, who persisted in regarding all the circumstances of his perilous position as farcical, smiled at the lawyer's outburst in silent amusement; but as soon as he saw a sympathetic brightness in the eyes of one of the jury, the dexterous demagogue with characteristic humor and effrontery accused sir john mitford, the solicitor general, of needless sympathy with the sentimental disturbance of his colleague. "do you know what sir john mitford is crying about?" the prisoner inquired of the jury. "he is thinking of the destitute condition of sir john scott's children, and the _little patrimony_ they are likely to divide among them." the jury and all present were not more tickled by the satire upon the attorney general than by the indignant surprise which enlivened the face of sir john mitford, who was not at all prone to tears, and had certainly manifested no pity for john scott's forlorn condition. chapter xxix. "the play's the thing." following the example set by the nobility in their castles and civic palaces, the inns of court set apart certain days of the year for feasting and revelry, and amongst the diversions with which the lawyers recreated themselves at these periods of rejoicing, the rude pre-shakespearian dramas took a prominent place. so far back as a.d. , the masters of the lincoln's inn bench restricted the number of annual revels to four--"one at the feast of all-hallown, another at the feast of st. erkenwald; the third at the feast of the purification of our lady; and the th at midsummer." the ceremonials of these holidays were various; but the brief and sometimes unintelligible notices of the chroniclers give us sufficiently vivid and minute pictures of the boisterous jollity that marked the proceedings. miracle plays and moralities, dancing and music, fantastic processions and mad pranks, spurred on the hours that were not devoted to heavy meals and deep potations. in the merriments of the different inns there was a pleasant diversity--with regard to the duration and details of the entertainments: and occasionally the members of the four societies acted with so little concert that their festivals, falling at exactly the same time, were productive of rivalry and disappointments. dugdale thinks that the christmas revels were not regularly kept in lincoln's inn during the reign of henry viii.; and draws attention to an order made by the benchers of that house on nov., h. viii., the record of which runs thus:--"it is agreed that if the two temples do kepe chrystemas, then the chrystemas to be kept here; and to know this, the steward of the house ys commanded to get knowledge, and to advertise my masters by the next day at night." but notwithstanding changes and novelties, the main features of a revel in an inn of court were always much the same. some member of the society conspicuous for rank or wit of style, or for a combination of these qualities, was elected king of the revel, and until the close of the long frolic he was despot and sole master of the position--so long as he did not disregard a few not vexatious conditions by which, the benchers limited his authority. he surrounded himself with a mock court, exacted homage from barristers and students, made proclamations to his loyal children, sat on a throne at daily banquets, and never appeared in public without a body-guard, and a numerous company of musicians, to protect his person and delight his ear. the wit and accomplishments of the younger lawyers were signally displayed in the dramatic interludes that usually enlivened these somewhat heavy and sluggish jollifications. not only did they write the pieces, and put them before the audience with cunning devices for the production of scenic effect, but they were their own actors. it was not long before their 'moralities' were seasoned with political sentiments and allusions to public affairs. for instance, when wolsey was in the fulness of his power, sergeant roo ventured to satirize the cardinal in a masque with which gray's inn entertained henry viii. and his courtiers. hall records that, "this plaie was so set furth with riche and costlie apparel; with strange diuises of maskes and morrishes, that it was highly praised of all menne saving the cardinall, whiche imagined that the plaie had been deuised of him, and in greate furie sent for the said maister roo, and toke from hym his coife, and sent him to the flete, and after he sent for the yoong gentlemen that plaied in the plaie, and them highly rebuked and threatened, and sent one of them, called thomas moyle, of kent, to the flete; but by means of friendes master roo and he wer deliuered at last." the author stoutly denied that he intended to satirize the cardinal; and the chronicler, believing the sergeant's assertions, observes, "this plaie sore displeased the cardinal, and yet it was never meant to him." that the presentation of plays was a usual feature of the festivals at gray's inn may be inferred from the passage where dugdale, in his notes on that society, says;--"in edw. vi. ( nov.), it was also ordered that henceforth there should be no comedies called _interludes_ in this house out of term time, but when the feast of the nativity of our lord is solemnly observed. and that when there shall be any such comedies, then all the society at that time in commons to bear the charge of the apparel." notwithstanding her anxiety for the maintenance of good discipline in the inns of court, queen elizabeth encouraged the societies to celebrate their feasts with costliness and liberal hospitality, and her taste for dramatic entertainments increased the splendor and frequency of theatrical diversions amongst the lawyers. christopher hatton's name is connected with the history of the english drama, by the acts which he contributed to 'the tragedie of tancred and gismunda, compiled by the gentlemen of the inner temple, and by them presented before her majestie;' and he was one of the chief actors in that ponderous and extravagant mummery with which the inner temple kept christmas in the fourth year of elizabeth's reign. the circumstances of that festival merit special notice. in the third year of elizabeth's reign the middle temple and the inner temple were at fierce war, the former society having laid claim to lyon's inn, which had been long regarded as a dependency of the inner temple. the two chief justices, sir robert catlyn and sir james dyer, were known to think well of the claimant's title, and the masters of the inner temple bench anticipated an adverse decision, when lord robert dudley (afterwards earl of leicester) came to their relief with an order from queen elizabeth enjoining the middle templars no longer to vex their neighbors in the matter. submission being the only course open to them, the lawyers of the middle temple desisted from their claim; and the masters of the inner temple bench expressed their great gratitude to lord robert dudley, "by ordering and enacting that no person or persons of their society that then were, or thereafter should be, should be retained of councell against him the said lord robert, or his heirs; and that the arms of the said lord robert should be set up and placed in some convenient place in their hall as a continual monument of his lordship's favor unto them." further honors were paid to this nobleman at the ensuing christmas, when the inner temple held a revel of unusual magnificence and made lord robert the ruler of the riot. whilst the holidays lasted the young lord's title and style were "pallaphilos, prince of sophie high constable marshal of the knights templars, and patron of the honorable order of pegasus." and he kept a stately court, having for his chief officers--mr. onslow (lord chancellor), anthony stapleton (lord treasurer), robert kelway (lord privy seal), john fuller (chief justice of the king's bench), william pole (chief justice of the common pleas), roger manwood (chief baron of the exchequer), mr. bashe (steward of the household), mr. copley (marshal of the household), mr. paten (chief butler), christopher hatton (master of the game), messieurs blaston, yorke, penston, jervise (masters of the revels), mr. parker (lieutenant of the tower), mr. kendall (carver), mr. martyn (ranger of the forests), and mr. stradling (sewer). besides these eighteen placemen, pallaphilos had many other mock officers, whose names are not recorded, and he was attended by a body-guard of fourscore members of the inn. from the pages of gerard leigh and dugdale, the reader can obtain a sufficiently minute account of the pompous ceremonials and heavy buffooneries of the season. he may learn some of the special services and contributions which prince pallaphilos required of his chief courtiers, and take note how mr. paten, as chief butler, had to provide seven dozen silver and gilt spoons, twelve dozen silver and gilt salt-cellars, twenty silver and gilt candlesticks, twenty fine large table-cloths of damask and diaper, twenty dozen white napkins, three dozen fair large towels, twenty dozen white cups and green pots, to say nothing of carving-knives, carving table, tureens, bread, beer, ale, and wine. the reader also may learn from those chroniclers how the company were placed according to degrees at different tables; how the banquets were served to the sound of drums and fifes; how the boar's head was brought in upon a silver dish; how the gentlemen in gowns, the trumpeters, and other musicians followed the boar's head in stately procession; and how, by a rule somewhat at variance with modern notions concerning old english hospitality, strangers of worth were expected to pay in cash for their entertainment, eightpence per head being the charge for dinner on the day of christmas eve, and twelve-pence being demanded from each stranger for his dinner on the following day. ladies were not excluded from all the festivities; though it may be presumed they did not share in all the riotous meals of the period. it is certain that they were invited, together with the young law-students from the inns of chancery, to see a play and a masque acted in the hall; that seats were provided for their special accommodation in the hall whilst the sports were going forward; and that at the close of the dramatic performances the gallant dames and pretty girls were entertained by pallaphilos in the library with a suitable banquet; whilst the mock lord chancellor, mr. onslow, presided at a feast in the hall, which with all possible speed had been converted from theatrical to more appropriate uses. but though the fun was rare and the array was splendid to idle folk of the sixteenth century, modern taste would deem such gaiety rude and wearisome, would call the ladies' banquet a disorderly scramble, and think the whole frolic scarce fit for schoolboys. and in many respects those revels of olden time were indecorous, noisy, comfortless affairs. there must have been a sad want of room and fresh air in the inner temple dining-hall, when all the members of the inn, the selected students from the subordinate inns of chancery, and half a hundred ladies (to say nothing of mr. gerard leigh and illustrious strangers), had crowded into the space set apart for the audience. at the dinners what wrangling and tumult must have arisen through squabbles for place, and the thousand mishaps that always attend an endeavor to entertain five hundred gentlemen at a dinner, in a room barely capacious enough for the proper accommodation of a hundred and fifty persons. unless this writer greatly errs, spoons and knives were in great request, and table linen was by no means 'fair and spotless' towards the close of the rout. superb, on that holyday, was the aspect of prince pallaphilos. wearing a complete suit of elaborately wrought and richly gilt armor, he bore above his helmet a cloud of curiously dyed feathers, and held a gilt pole-axe in his hand. by his side walked the lieutenant of the tower (mr. parker), clad in white armor, and like pallaphilos furnished with feathers and a pole-axe. on entering the hall the prince and his lieutenant of the tower were preceded by sixteen trumpeters (at full blare), four drummers (at full drum), and a company of fifers (at full whistle), and followed by four men in white armor, bearing halberds in their hands. thrice did this procession march round the fire that blazed in the centre of the hall; and when in the course of these three circuits the four halberdiers and the musicians had trodden upon everybody's toes (their own included), and when moreover they had blown themselves out of time and breath, silence was proclaimed; and prince pallaphilos, having laid aside his pole-axe and his naked sword and a few other trifles, took his seat at the urgent entreaty of the mock lord chancellor. but kit hatton's appearance and part in the proceedings were even more outrageously ridiculous. the future lord chancellor of england was then a very elegant and witty young fellow, proud of his quick humor and handsome face, but far prouder of his exquisitely proportioned legs. no sooner had prince pallaphilos taken his seat, at the lord chancellor's suggestion, than kit hatton (as master of the game) entered the hall, dressed in a complete suit of green velvet, and holding a green bow in his left hand. his quiver was supplied with green arrows, and round his neck was slung a hunting-horn. by kit's side, arrayed in exactly the same style, walked the ranger of the forests (mr. martyn); and having forced their way into the crowded chamber, the two young men blew three blasts of venery upon their horns, and then paced three times round the fire. after thus parading the hall they paused before the lord chancellor, to whom the master of game made three curtsies, and then on his knees proclaimed the desire of his heart to serve the mighty prince pallaphilos. having risen from his kneeling posture kit hatton blew his horn, and at the signal his huntsman entered the room, bringing with him a fox, a cat, and ten couples of hounds. forthwith the fox was released from the pole to which it was bound; and when the luckless creature had crept into a corner under one of the tables, the ten couples of hounds were sent in pursuit. it is a fact that english gentlemen in the sixteenth century thus amused themselves with a fox-hunt in a densely crowded dining-room. over tables and under tables, up the hall and down the hall, those score hounds went at full cry after a miserable fox, which they eventually ran into and killed in the cinder-pit, or as dugdale expresses it, "beneath the fire." that work achieved, the cat was turned off, and the hounds sent after her, with much blowing of horns, much cracking of whips, and deafening cries of excitement from the gownsmen, who tumbled over one another in their eagerness to be in at the death. chapter xxx. the river and the strand by torchlight. scarcely less out of place in the dining-hall than kit hatton's hounds, was the mule fairly mounted on which the prince pallaphilos made his appearance at the high table after supper, when he notified to his subjects in what manner they were to disport themselves till bedtime. thus also when the prince of purpoole kept his court at gray's inn, a.d. , the prince's champion rode into the dining-hall upon the back of a fiery charger which, like the rider, was clothed in a panoply of steel. in costliness and riotous excess the prince of purpoole's revel at gray's inn was not inferior to any similar festivity in the time of elizabeth. on the th of december, st. thomas's eve, the prince (one master henry holmes, a norfolk gentleman) took up his quarters in the great hall of the inn, and by the rd day of january the grandeur and comicality of his proceedings had created so much talk throughout the town that the lord treasurer burghley, the earls of cumberland, essex, shrewsbury and westmoreland, the lords buckhurst, windsor, sheffield, compton, and a magnificent array of knights and ladies visited gray's inn hall on that day and saw the masque which the revellers put upon the stage. after the masque there was a banquet, which was followed by a ball. on the following day the prince, attended by eighty gentlemen of gray's inn and the temple (each of the eighty wearing a plume on his head), dined in state with the lord mayor and aldermen of the city, at crosby place. the frolic continued for many days more; the royal purpoole on one occasion visiting blackwall with a splendid retinue, on another (twelfth night) receiving a gallant assembly of lords, ladies, and knights, at his court in gray's inn, and on a third (shrovetide) visiting the queen herself at greenwich, when her majesty warmly applauded the masque set before her by the actors who were members of the prince's court. so delighted was elizabeth with the entertainment, that she graciously allowed the masquers to kiss her right hand, and loudly extolled gray's inn "as an house she was much indebted to, for it did always study for some sports to present unto her;" whilst to the mock prince she showed her favor, by placing in his hand the jewel (set with seventeen diamonds and fourteen rubies) which he had won by valor and skill in the tournament which formed part of the shrovetide sports. numerous entries in the records of the inns testify to the importance assigned by the olden lawyers to their periodic feasts; and though in the fluctuations of public opinion with regard to the effects of dramatic amusements, certain benchers, or even all the benchers of a particular inn, may be found at times discountenancing the custom of presenting masques, the revels were usually diversified and heightened by stage plays. not only were interludes given at the high and grand holidays styled _solemn revels_, but also at the minor festivities termed post revels they were usually had recourse to for amusement. "besides those _solemn revels_, or measures aforesaid," says dugdale, concerning the old usages of the 'middle temple,' "they had wont to be entertained with post revels performed by the better sort of the young gentlemen of the society, with galliards, corrantoes, and other dances, or else with stage-plays; the first of these feasts being at the beginning, and the other at the latter end of christmas. but of late years these post revels have been disused, both here and in the other inns of court." besides producing and acting some of our best pro-shakespearian dramas, the elizabethan lawyers put upon the stage at least one of william shakespeare's plays. from the diary of a barrister (supposed to be john manningham, of the middle temple), it is learnt that the middle templar's acted shakespeare's 'twelfth night' at the readers' feast on candlemas day, - .[ ] in the following reign, the masques of the lawyers in no degree fell off with regard to splendor. seldom had the thames presented a more picturesque and exhilarating spectacle than it did on the evening of february , , when the gentlemen masquers of gray's inn and the temple, entered the king's royal barge at winchester house, at seven o'clock, and made the voyage to whitehall, attended by hundreds of barges and boats, each vessel being so brilliantly illuminated that the lights reflected upon the ripples of the river, seemed to be countless. as though the hum and huzzas of the vast multitude on the water were insufficient to announce the approach of the dazzling pageant, guns marked the progress of the revellers, and as they drew near the palace, all the attendant bands of musicians played the same stirring tune with uniform time. it is on record that the king received the amateur actors with an excess of condescension, and was delighted with the masque which master beaumont of the inner temple, and his friend, master fletcher, had written and dedicated "to the worthy sir francis bacon, his majesty's solicitor-general, and the grave and learned bench of the anciently-called houses of grayes inn and the inner temple, and the inner temple and grayes inn." the cost of this entertainment was defrayed by the members of the two inns--each reader paying £ , each ancient, £ _s._; each barrister, £ , and each student, _s._ the inner temple and gray's inn having thus testified their loyalty and dramatic taste, in the following year on shrove-monday night (feb. , ), lincoln's inn and the middle temple, with no less splendor and _éclat_, enacted at whitehall a masque written by george chapman. for this entertainment, inigo jones designed and perfected the theatrical decorations in a style worthy of an exhibition that formed part of the gaieties with which the marriage of the palsgrave with the princess elizabeth was celebrated. and though the masquers went to whitehall by land, their progress was not less pompous than the procession which had passed up the thames in the february of the preceding year. having mustered in chancery lane, at the official residence of the master of the rolls, the actors and their friends delighted the town with a gallant spectacle. mounted on richly-caparisoned and mettlesome horses, they rode from fleet street up the strand, and by charing cross to whitehall, through a tempest of enthusiasm. every house was illuminated, every window was crowded with faces, on every roof men stood in rows, from every balcony bright eyes looked down upon the gay scene, and from basement to garret, from kennel to roof-top throughout the long way, deafening cheers testified, whilst they increased the delight of the multitude. such a pageant would, even in these sober days, rouse london from her cold propriety. having thrown aside his academic robe, each masquer had donned a fantastic dress of silver cloth embroidered with gold lace, gold plate, and ostrich plumes. he wore across his breast a gold baldrick, round his neck a ruff of white feathers brightened with pearls and silver lace, and on his head a coronal of snowy plumes. before each mounted masquer rode a torch-bearer, whose right hand waved a scourge of flame, instead of a leathern thong. in a gorgeous chariot, preceded by a long train of heralds, were exhibited the dramatis personæ--honor, plutus, eunomia, phemeis, capriccio--arrayed in their appointed costumes; and it was rumored that the golden canopy of their coach had been bought for an enormous sum. two other triumphal cars conveyed the twelve chief musicians of the kingdom, and these masters of melody were guarded by torch-bearers, marching two deep before and behind, and on either side of the glittering carriages. preceding the musicians, rode a troop of ludicrous objects, who roused the derision of the mob, and made fat burghers laugh till tears ran down their cheeks. they were the mock masque, each resembling an ape, each wearing a fantastic dress that heightened the hideous absurdity of his monkey's visage, each riding upon an ass, or small pony, and each of them throwing shells upon the crowd by way of a largess. in the front of the mock masque, forming the vanguard of the entire spectacle, rode fifty gentlemen of the inns of court, reining high-bred horses, and followed by their running footmen, whose liveries added to the gorgeous magnificence of the display. besides the expenses which fell upon individuals taking part in the play, or procession, this entertainment cost the two inns £ _s._ _d._ about the same time gray's inn, at the instigation of attorney general sir francis bacon, performed 'the masque of flowers' before the lords and ladies of the court, in the banqueting-house, whitehall; and six years later thomas middleton's inner temple masque, or masque of heroes' was presented before a goodly company of grand ladies by the inner templars. [ ] the propensity of lawyers for the stage, lingered amongst barristers on circuit, to a comparatively recent date. 'old stagers' of the home and western circuits, can recall how the juniors of their briefless and bagless days used to entertain the natives of guildford and exeter with shakspearian performances. the northern circuit also was at one time famous for the histrionic ability of its bar, but toward the close of the last century, the dramatic recreations of its junior members were discountenanced by the grand court. chapter xxxi. anti-prynne. of all the masques mentioned in the records of the inns of court, the most magnificent and costly was the famous anti-prynne demonstration, by which the lawyers endeavored to show their contemptuous disapproval of a work that inveighed against the licentiousness of the stage, and preferred a charge of wanton levity against those who encouraged theatrical performances. whilst the 'histriomastix' rendered the author ridiculous to mere men of pleasure, it roused fierce animosities by the truth and fearless completeness of its assertions; but to no order of society was the famous attack on the stage more offensive than to the lawyers; and of lawyers the members of lincoln's inn were the most vehement in their displeasure. the actors writhed under the attack; the lawyers were literally furious with rage--for whilst rating them soundly for their love of theatrical amusements, prynne almost contrived to make it seem that his views were acceptable to the wisest and most reverend members of the legal profession. himself a barrister of lincoln's inn, he with equal craft and audacity complimented the benchers of that society on the firmness with which they had forbidden professional actors to take part in the periodic revels of the inn, and on their inclination to govern the society in accordance with puritanical principles. addressing his "much honored friends, the right worshipful masters of the bench of the honorable flourishing law society of lincoln's inne," the utter-barrister said: "for whereas other innes of court (i know not by what evil custom, and worse example) admit of common actors and interludes upon their two grand festivalls, to recreate themselves withall, notwithstanding the statutes of our kingdome (of which lawyers, of all others, should be most observant), have branded all professed stage-players for infamous rogues, and stage-playes for unlawful pastimes, especially on lord's-dayes and other solemn holidayes, on which these grand dayes ever fall; yet such hath been your pious tender care, not only of this societie's honor, but also of the young students' good (for the advancing of whose piety and studies you have of late erected a magnificent chapel, and since that a library), that as you have prohibited by late publicke orders, all disorderly bacchanalian grand-christmasses (more fit for pagans than christians; for the deboisest roarers than grave civill students, who should be patternes of sobriety unto others), together with all publicke dice-play in the hall (a most pernicious, infamous game; condemned in all ages, all places, not onely by councels, fathers, divines, civilians, canonists, politicians, and other christian writers; by divers pagan authors of all sorts, and by mahomet himselfe; but likewise by sundry heathen, yea, christian magistrates' edicts)." concerning the london theatres he observes that the "two old play houses" (_i.e._, the fortune and the red bull), the "new theatre" (_i.e._, whitefriars play-house), and two other established theatres, being found inadequate to the wants of the play-going public, a sixth theatre had recently been opened. "the multitude of our london play-haunters being so augmented now, that all the ancient divvel's chappels (for so the fathers style all play-houses) being five in number, are not sufficient to containe their troops, whence we see a sixth now added to them, whereas even in vitious nero his raigne there were but three standing theatres in pagan rome (though far more splendid than christian london), and those three too many." having thus enumerated some of the saddest features of his age, the author of the 'player's scourge' again commends the piety and decorum of the lincoln's inn benchers, saying, "so likewise in imitation of the ancient lacedæmonians and massilienses, or rather of primitive zealous christians, you have always from my first admission into your society, and long before, excluded all common players with their ungodly interludes, from all your solemn festivals." if the benchers of one inn winced under prynne's 'expressions of approval,' the students of all the inns of court were even more displeased with the author who, in a dedicatory letter "to the right christian, generous young gentlemen-students of the four innes of court, and especially those of lincolne's inne," urged them to "at last falsifie that ignominious censure which some english writers in their printed works have passed upon innes of court students, of whom they record:--that innes of court men were undone but for players, that they are their chiefest guests and imployment, and the sole business that makes them afternoon's men; that is one of the first things they learne as soon as they are admitted, to see stage-playes, and take smoke at a play-house, which they commonly make their studie; where they quickly learne to follow all fashions, to drinke all healths, to wear favours and good cloathes, to consort with ruffianly companions, to swear the biggest oaths, to quarrel easily, fight desperately, quarrel inordinately, to spend their patrimony ere it fall, to use gracefully some gestures of apish compliment, to talk irreligiously, to dally with a mistresse, and hunt after harlots, to prove altogether lawless in steed of lawyers, and to forget that little learning, grace, and vertue which they had before; so much that they grow at last past hopes of ever doing good, either to the church, their country, their owne or others' souls." the storm of indignation which followed the appearance of the 'histriomastix' was directed by the members of the four inns, who felt themselves bound by honor no less than by interest, to disavow all connexion with, or leaning towards, the unpopular author. on the suggestion of lincoln's inn, the four societies combined their forces, and at a cost of more than twenty thousand pounds, in addition to sums spent by individuals, entertained the court with that splendid masque which whitelock has described in his 'memoirs' with elaborate prolixity. the piece entitled 'the triumph of peace,' was written by shirley, and it was produced with a pomp and lavish expenditure that were without precedent. the organization and guidance of the undertaking were entrusted to a committee of eight barristers, two from each inn; and this select body comprised men who were alike remarkable for talents, accomplishments, and ambition, and some of whom were destined to play strangely diverse parts in the drama of their epoch. it comprised edward hyde, then in his twenty-sixth year; young bulstrode whitelock, who had not yet astonished the more decorous magnates of his country by wearing a falling-band at the oxford quarter sessions; edward herbert, the most unfortunate of cavalier lawyers; john selden, already a middle-aged man; john finch, born in the same year as selden, and already far advanced in his eager course to a not honorable notoriety. attorney general noy was also of the party, but his disastrous career was already near its close. the committee of management had their quarters at ely house, holborn; and from that historic palace the masquers started for whitehall on the eve of candlemas day, - . it was a superb procession. first marched twenty tall footmen, blazing in liveries of scarlet cloth trimmed with lace, each of them holding a baton in his right hand, and in his left a flaring torch that covered his face with light, and made the steel and silver of his sword-scabbard shine brilliantly. a company of the marshal's men marched next with firm and even steps, clearing the way for their master. a burst of deafening applause came from the multitude as the marshal rode through the gateway of ely house, and caracoled over the holborn way on the finest charger that the king's stables could furnish. a perfect horseman and the handsomest man then in town, mr. darrel of lincoln's inn, had been elected to the office of marshal in deference to his wealth, his noble aspect, his fine nature, and his perfect mastery of all manly sports. on either side of mr. darrel's horse marched a lacquey bearing a flambeau, and the marshal's page was in attendance with his master's cloak. an interval of some twenty paces, and then came the marshal's body-guard, composed of one hundred mounted gentlemen of the inns of court--twenty-five from each house; showing in their faces the signs of gentle birth and honorable nurture; and with strong hands reining mettlesome chargers that had been furnished for their use by the greatest nobles of the land. this flood of flashing chivalry was succeeded by an anti-masque of beggars and cripples, mounted on the lamest and most unsightly of rat-tailed srews and spavined ponies, and wearing dresses that threw derision on legal vestments and decorations. another anti-masque satirized the wild projects of crazy speculators and inventors; and as it moved along the spectators laughed aloud at the "fish-call, or looking-glass for fishes in the sea, very useful for fishermen to call all kinds of fish to their nets;" the newly-invented wind-mate for raising a breeze over becalmed seas, the "movable hydraulic" which should give sleep to patients suffering under fever. chariots and horsemen, torch-bearers and lacqueys, followed in order. "then came the first chariot of the grand masquers, which was not so large as those that went before, but most curiously framed, carved, and painted with exquisite art, and purposely for this service and occasion. the form of it was after that of the roman triumphant chariots. the seats in it were made of oval form in the back end of the chariot, so that there was no precedence in them, and the faces of all that sat in it might be seen together. the colors of the first chariot were silver and crimson, given by the lot to gray's inn: the chariot was drawn with four horses all abreast, and they were covered to their heels all over with cloth of tissue, of the colors of crimson and silver, huge plumes of white and red feathers on their heads; the coachman's cap and feather, his long coat, and his very whip and cushion of the same stuff and color. in this chariot sat the four grand masquers of gray's inn, their habits, doublets, trunk-hose, and caps of most rich cloth of tissue, and wrought as thick with silver spangles as they could be placed; large white stockings up to their trunk-hose, and rich sprigs in their cap, themselves proper and beautiful young gentlemen. on each side of the chariot were four footmen in liveries of the color of the chariot, carrying huge flamboys in their hands, which, with the torches, gave such a lustre to the paintings, spangles, and habits that hardly anything could be invented to appear more glorious." six musicians followed the state-chariot of gray's inn, playing as they went; and then came the triumphal cars of the middle templars, the inner templars, and the lincoln's inn men--each car being drawn by four horses and attended by torch-bearers, flambeau-bearers, and musicians. in shape these four cars were alike, but they differed in the color of their fittings. whilst gray's inn used scarlet and silver, the middle templars chose blue and silver decorations, and each of the other two houses adopted a distinctive color for the housings of their horses and the liveries of their servants. it is noteworthy that the inns (equal as to considerations of dignity) took their places in the pageant by lot; and that the four grand masquers of each inn were seated in their chariot on seats so constructed that none of the four took precedence of the others. the inns, in days when questions of precedence received much attention, were very particular in asserting their equality, whenever two or more of them acted in co-operation. to mark this equality, the masque written by beaumont and fletcher in was described "the masque of the inner temple and grayes inn; grayes inn and the inner temple:" and the dedication of the piece to francis bacon, reversing this transposition, mentions "the allied houses of grayes inn and the inner temple, and the inner temple and grayes inn," these changes being made to point the equal rank of the two fraternities. through the illuminated streets this pageant marched to the sound of trumpets and drums, cymbals and fifes, amidst the deafening acclamations of the delighted town; and when the lawyers reached whitehall, the king and queen were so delighted with the spectacle, that the procession was ordered to make the circuit of the tilt-yard for the gratification of their majesties, who would fain see the sight once again from the windows of their palace. is there need to speak of the manner in which the masque was acted, of the music and dances, of the properties and scenes, of the stately banquet after the play and the grand ball which began at a still later hour, of the king's urbanity and the graciousness of henrietta, who "did the honor to some of the masquers to dance with them herself, and to judge them as good dancers as she ever saw!" notwithstanding a few untoward broils and accidents, the entertainment passed off so satisfactorily that 'the triumph of peace' was acted for a second time in the presence of the king and queen, in the merchant taylors' hall. other diversions of the same kind followed with scarcely less _éclat_. at whitehall the king himself and some of the choicest nobles of the land turned actors, and performed a grand masque, on which occasion the templars were present as spectators in seats of honor. during the shrovetide rejoicings of , henrietta even condescended to witness the performance of davenant's 'triumphs of the prince d'amour,' in the hall of the middle temple. laying aside the garb of royalty, she went to the temple, attended by a party of lords and ladies, and fine gentlemen who, like herself, assumed for the evening dresses suitable to persons of private station. the marquis of hamilton, the countess of denbigh, the countess of holland, and lady elizabeth fielding were her companions; whilst the official attendants on her person were the earl of holland, lord goring, mr. percy, and mr. jermyn. led to her place by "mrs. basse, the law-woman," henrietta took a seat upon a scaffold fixed along the northern side of the hall, and amidst a crush of benchers' wives and daughters saw the play and heartily enjoyed it. says whitelock, at the conclusion of his account of the grand masque given by the four inns, "thus these dreams past, and these pomps vanished." scarcely had the frolic terminated when death laid a chill hand on the time-serving noy, who in the consequences of his dishonest counsels left a cruel legacy to the master and the country whom he alike betrayed. a few more years--and john finch, having lost the great seal, was an exile in a foreign land, destined to die in penury, without again setting foot on his native soil. the graceful herbert, whose smooth cheek had flushed with joy at henrietta's musical courtesies, became for a brief day the mock lord keeper of charles ii.'s mock court at paris, and then, dishonored and disowned by his capricious master, he languished in poverty and disease, until he found an obscure grave in the french capital. more fortunate than his early rival, edward hyde outlived charles stuart's days of adverse fortune, and rose to a grievous greatness; but like that early rival, he, too, died in exile in france. perhaps of all the managers of the grand masque the scholarly pedant, john selden, had the greatest share of earthly satisfaction. not the least fortunate of the party was the historian of "the pomp and glory, if not the vanity of the show," who having survived the commonwealth and witnessed the restoration, was permitted to retain his paternal estate, and in his last days could tell his numerous descendants how his old chum, edward hyde, had risen, fallen, and--passed to another world. chapter xxxii. an empty grate. with the revival of gaiety which attended and followed the restoration, revels and masques came once more into vogue at the inns of court, where, throughout the commonwealth, plays had been prohibited, and festivals had been either abolished or deprived of their ancient hilarity. the caterers of amusement for the new king were not slow to suggest that he should honor the lawyers with a visit; and in accordance with their counsel, his majesty took water on august , , and went in the royal barge from whitehall to the temple to dine at the reader's feast. heneage finch had been chosen autumn reader of that inn, and in accordance with ancient usage he demonstrated his ability to instruct young gentlemen in the principles of english law, by giving a series of costly banquets. from the days of the tudors to the rise of oliver cromwell, the reader's feasts had been amongst the most sumptuous and ostentatious entertainments of the town--the sergeant's feasts scarcely surpassing them in splendor, the inaugural dinners of lord mayors often lagging behind them in expense. but heneage finch's lavish hospitality outstripped the doings of all previous readers. his revel was protracted throughout six days, and on each of these days he received at his table the representative members of some high social order or learned body. beginning with a dinner to the nobility and privy councillors, he finished with a banquet to the king; and on the intervening days he entertained the civic authorities, the college of physicians, the civil lawyers, and the dignitaries of the church. the king's visit was attended with imposing ceremony, and wanted no circumstance that could have rendered the occasion more honorable to the host or to the society of which he was a member. all the highest officers of the court accompanied the monarch, and when he stepped from his barge at the temple stairs, he spoke with jovial urbanity to his entertainer and the lord chief justice of the common pleas, who received him with tokens of loyal deference and attachment. "on each side," says dugdale, "as his majesty passed, stood the reader's servants in scarlet cloaks and white tabba doublets; there being a way made through the wall into the temple gardens; and above them on each side the benchers, barristers, and other gentlemen of the society, all in their gowns and formalities, the loud music playing from the time of his landing till he entered the hall; where he was received with xx violins, which continued as long as his majesty stayed." fifty chosen gentlemen of the inn, wearing their academic gowns, placed dinner on the table, and waited on the feasters--no other servants being permitted to enter the hall during the progress of the banquet. on the dais at the top of the hall, under a canopy of state, the king and his brother james sat apart from men of lower degree, whilst the nobles of whitehall occupied one long table, under the presidency of the lord chancellor, and the chief personages of the inn dined at a corresponding long table, having the reader for their chairman. in the following january, charles ii. and the duke of york honored lincoln's inn with a visit, whilst the mock prince de la grange held his court within the walls of that society. nine years later--in the february of --king charles and his brother james again visited lincoln's inn, on which occasion they were entertained by sir francis goodericke, knt., the reader of the inn, who seems almost to have gone beyond heneage finch in sumptuous profusion of hospitality. of this royal visit a particular account is to be seen in the admittance book of the honorable society, from which it appears that the royal brothers were attended by the dukes of monmouth and richmond; the earls of manchester, bath, and anglesea; viscount halifax, the bishop of ely, lord newport, lord henry howard, and "divers others of great qualitie." the entertainment in most respects was a repetition of sir heneage finch's feast--the king, the duke of york, and prince rupert dining on the dais at the top of the hall, whilst the persons of inferior though high quality were regaled at two long tables, set down the hall; and the gentlemen of the inn condescending to act as menial servants. the reader himself, dropping on his knee when he performed the servile office, proffered the towel with which the king prepared himself for the repast; and barristers of ancient lineage and professional eminence contended for the honor of serving his majesty with surloin and cheesecake upon the knee, and hastened with the alacrity of well-trained lacqueys to do the bidding of "the lords att their table." having eaten and drunk to his lively satisfaction, charles called for the admittance book of the inn, and placed his name on the roll of members, thereby conferring on the society an honor for which no previous king of england had furnished a precedent. following their chief's example, the duke of york and prince rupert and other nobles forthwith joined the fraternity of lawyers; and hastily donning students' gowns, they mingled with the troop of gowned servitors, and humbly waited on their liege lord. in like manner, twenty-one years since (july , ) when queen victoria and her lamented consort visited lincoln's inn, on the opening of the new hall, they condescended to enter their names in the admission book of the inn, thereby making themselves students of the society. her majesty has not been called to the bar; but prince albert in due course became a barrister and bencher. repeating the action of charles ii.'s courtiers, the great duke of wellington and the bevy of great nobles present at the celebration became fellow-students with the queen; and on leaving the table the prince walked down the hall, wearing a student's stuff gown (by no means the most picturesque of academic robes), over his field-marshal's uniform. her majesty forbore to disarrange her toilet--which consisted of a blue bonnet with blue feathers, a dress of limerick lace, and a scarlet shawl, with a deep gold edging--by putting her arms through the sleeveless arm-holes of a bombazine frock. grateful to the lawyers for the cordiality with which they welcomed him to the country, william iii. accepted an invitation to the middle temple, and was entertained by that society with a banquet and a masque, of which notice has been taken in another chapter of this work; and in - peter the great was a guest at the christmas revels of the templars. on that occasion the czar enjoyed a favorable opportunity for gratifying his love of strong drink, and for witnessing the ease with which our ancestors drank wine by the magnum and punch by the gallon, when they were bent on enjoyment. in the greater refinement and increasing delicacy of the eighteenth century, the inns of court revels, which had for so many generations been conspicuous amongst the gaieties of the town, became less and less magnificent; and they altogether died out under the second of those georges who are thought by some persons to have corrupted public morals and lowered the tastes of society. in - , when lord chancellor talbot's elevation to the woolsack was celebrated by a revel in the inner temple hall, the dulness and disorder of the celebration convinced the lawyers that they had not acted wisely in attempting to revive usages that had fallen into desuetude because they were inconvenient to new arrangements or repugnant to modern taste. no attempt was made to prolong the festivity over a succession of days. it was a revel of one day; and no one wished to add another to the period of riot. at two o'clock on feb. , - , the new chancellor, the master of the revels, the benchers of the inns, and the guests (who were for the most part lawyers), sat down to dinner in the hall. the barristers and students had their ordinary fare, with the addition of a flask of claret to each mess; but a superior repast was served at the high table where fourteen students (of whom the chancellor's eldest son was one), served as waiters. whilst the banquet was in progress, musicians stationed in the gallery at the upper end of the hall filled the room with deafening noise, and ladies looked down upon the feasters from a large gallery which had been fitted up for their reception over the screen. after dinner, as soon as the hall could be cleared of dishes and decanters, the company were entertained with 'love for love,' and 'the devil to pay,' performed by professional actors who "all came from the haymarket in chairs, ready dressed, and (as it was said), refused any gratuity for their trouble, looking upon the honor of distinguishing themselves on this occasion as sufficient." the players having withdrawn, the judges, sergeants, benchers, and other dignitaries, danced 'round about the coal fire;' that is to say, they danced round about a stove in which there was not a single spark of fire. the congregation of many hundreds of persons, in a hall which had not comfortable room for half the number, rendered the air so oppressively hot that the master of the revels wisely resolved to lead his troop of revellers round an empty grate. the chronicler of this ridiculous mummery observes: "and all the time of the dance the ancient song, accompanied by music, was sung by one toby aston, dressed in a bar-gown, whose father had formerly been master of the plea office in the king's bench. when this was over, the ladies came down from the gallery, went into the parliament chamber, and stayed about a quarter of an hour, while the hall was being put in order. they then went into the hall and danced a few minuets. country dances began at ten, and at twelve a very fine cold collation was provided for the whole company, from which they returned to dancing, which they continued as long as they pleased, and the whole day's entertainment was generally thought to be very genteelly and liberally conducted. the prince of wales honored the performance with his company part of the time; he came into the music _incog._ about the middle of the play, and went away as soon as the farce of 'walking round the coal fire' was over." with this notable dance of lawyers round an empty grate, the old revels disappeared. in their grand days, equivalent to the gaudy days, or feast days, or audit days of the colleges at oxford and cambridge, the inns of court still retain the last vestiges of their ancient jollifications, but the uproarious riot of the obsolete festivities is but faintly echoed by the songs and laughter of the junior barristers and students who in these degenerate times gladden their hearts and loosen their tongues with an extra glass of wine after grand dinners, and then hasten back to chambers for tobacco and tea. on the discontinuance of the revels the inns of court lost their chief attractions for the courtly pleasure-seekers of the town, and many a day passed before another royal visit was paid to any one of the societies. in george iii.'s father stood amongst the musicians in the inner temple hall; and after the lapse of one century and eleven years the present queen accepted the hospitality of lincoln's inn. no record exists of a royal visit made to an inn of court between those events. only the other day, however, the prince of wales went eastwards and partook of a banquet in the hall of middle temple, of which society he is a barrister and a bencher. part vii. legal education. chapter xxxiii. inns of court and inns of chancery. schools for the study of the common law, existed within the bounds of the city of london, at the commencement of the thirteenth century. no sooner had a permanent home been assigned to the court of common pleas, than legal practitioners fixed themselves in the neighborhood of westminster, or within the walls of london. a legal society speedily grew up in the city; and some of the older and more learned professors of the common law, devoting a portion of their time and energies to the labors of instruction, opened academies for the reception of students. dugdale notices a tradition that in ancient times a law-school, called johnson's inn, stood in dowgate, that another existed in pewter lane, and that paternoster row contained a third; and it is generally thought that these three inns were amongst the academies which sprung up as soon as the common pleas obtained a permanent abode. the schools thus established in the opening years of the thirteenth century, were not allowed to flourish for any great length of time; for in the nineteenth year of his reign, henry iii. suppressed them by a mandate addressed to the mayor and sheriffs of the city. but though this king broke up the schools, the scholars persevered in their study; and if the king's mandate aimed at a complete discontinuance of legal instruction, his policy was signally defeated. successive writers have credited edward iii.'s reign with the establishment of inns of court; and it has been erroneously inferred that the study of the common law not only languished, but was altogether extinct during the period of nearly one hundred years that intervened between henry iii.'s dissolution of the city schools and edward iii.'s accession. abundant evidence, however, exists that this was not the case. edward i., in the twentieth year of his reign, ordered his judges of the common pleas to "provide and ordain, from every county, certain attorneys and lawyers" (in the original "atturnatus et _apprenticiis_") "of the best and most apt for their learning and skill, who might do service to his court and people; and those so chosen, and no other should follow his court, and transact affairs therein; the words of which order make it clear that the country contained a considerable body of persons who devoted themselves to the study and practice of the law." so also in the year-book, ed. iii., the words, "et puis une apprentise demand," show that lawyers holding legal degrees existed in the very first year of edward iii.'s reign; a fact which justifies the inference that in the previous reign england contained common law schools capable of granting the legal degree of apprentice. again dugdale remarks, "in ed. iii., in a _quod ei deforciat_ to an exception taken, it was answered by sir richard de willoughby (then a learned justice of the _common pleas_) and william skipwith, (afterwards also one of the justices of that court), that the same was no exception amongst the _apprentices in hostells or inns_." whence it is manifest that inns of court were institutions in full vigor at the time when they have been sometimes represented as originally established. but after their expulsion from the city, there is reason to think that the common lawyers made no attempt to reside in colleges within its boundaries. they preferred to establish themselves on spots where they could enjoy pure air and rural quietude, could surround themselves with trees and lawns, or refresh their eyes with the sight of the silver thames. in the earliest part of the fourteenth century, they took possession of a great palace that stood on the western outskirt of the town, and looked westwards upon green fields, whilst its eastern wall abutted on new street--a thoroughfare that was subsequently called chancellor's lane, and has for many years been known as chancery lane. this palace had been the residence of henry lacy, earl of lincoln, who conferred upon the building the name which it still bears. the earl died in , some seventeen years before edward iii.'s accession; and thynne, the antiquary, was of opinion that no considerable period intervened between henry lacy's death and the entry of the lawyers. in the same century, the lawyers took possession of the temple. the exact date of their entry is unknown; but chaucer's verse enables the student to fix, with sufficient preciseness, the period when the more noble apprentices of the law first occupied the temple as tenants of the knight's hospitallers of st. john of jerusalem, who obtained a grant of the place from edward iii.[ ] the absence of fuller particulars concerning the early history of the legal templars, is ordinarily and with good reason attributed to wat tyler's rebels, who destroyed the records of the fraternity by fire. from roof to basement, beginning with the tiles, and working downwards, the mob destroyed the principal houses of the college; and when they had burnt all the archives on which they could lay hands, they went off and expended their remaining fury on other buildings, of which the knights of st. john were proprietors. the same men who saw the lawyers take possession of the temple on the northern banks of the thames, and of the earl of lincoln's palace in new street, saw them also make a third grand settlement. the manor of portepoole, or purpoole, became the property of the grays of wilton, in the twenty-second year of edward i.; and on its green fields, lying north of holborn, a society of lawyers established a college which still retains the name of the ancient proprietors of the soil. concerning the exact date of its institution, the uncertainty is even greater than that which obscures the foundation of the temple and lincoln's inn; but antiquaries have agreed to assign the creation of gray's inn, as an hospicium for the entertainment of lawyers, to the time of edward iii. the date at which the temple lawyers split up into two separate societies, is also unknown; but assigning the division to some period posterior to wat tyler's insurrection, dugdale says, "but, notwithstanding, this spoil by the rebels, those students so increased here, that at length they divided themselves into two bodies; the one commonly known by the society of the inner temple, and the other of the middle temple, holding this mansion as tenants." but as both societies had a common origin in the migration of lawyers from thavies inn, holborn, in the time of edward iii., it is usual to speak of the two temples as instituted in that reign, and to regard all four inns of court as the work of the fourteenth century. the inns of chancery for many generations maintained towards the inns of court a position similar to that which eton school maintains towards king's at cambridge, or that which winchester school holds to new college at oxford. they were seminaries in which lads underwent preparation for the superior discipline and greater freedom of the four colleges. each inn of court had its own inns of chancery, yearly receiving from them the pupils who had qualified themselves for promotion to the status of inns-of-court men. in course of time, students after receiving the preliminary education in an inn of chancery were permitted to enter an inn of court on which their inn of chancery was not dependent; but at every inn of court higher admission fees were charged to students coming from inns of chancery over which it had no control, than to students who came from its own primary schools. if the reader bears in mind the difference in respect to age, learning, and privileges between our modern public schoolboys and university undergraduates, he will realize with sufficient nearness to truth the differences which existed between the inns of chancery students and the inns of court students in the fifteenth century; and in the students, utter-barristers, and benchers of the inns of court at the same period he may see three distinct orders of academic persons closely resembling the undergraduates, bachelors of arts, and masters of arts in our universities. in the 'de laudibus legum angliæ,'[ ] written in the latter part of the fifteenth century, sir john fortescue says--"but to the intent, most excellent prince, yee may conceive a forme and an image of this study, as i am able, i wil describe it unto you. for there be in it ten lesser houses or innes, and sometimes moe, which are called innes of the chauncerye. and to every one of them belongeth an hundred students at least, and to some of them a much greater number, though they be not ever all together in the same." in charles ii.'s time there were eight inns of chancery; and of them three were subsidiary to the inner temple--viz., clifford's inn, clement's inn, and lyon's inn. clifford's inn (originally the town residence of the barons clifford) was first inhabited by law-students in the eighteenth year of edward iii. clement's inn (taking its name from the adjacent st. clement's well) was certainly inhabited by law-students as early as the nineteenth year of edward iv. lyon's inn was an inn of chancery in the time of henry v. one alone (new inn) was attached to the middle temple. in the previous century, the middle temple had possessed another inn of chancery called strand inn; but in the third year of edward vi. this nursery was pulled down by the duke of somerset, who required the ground on which it stood for the site of somerset house. lincoln's inn had for dependent schools furnival's inn and thavies inn--the latter of which hostels was inhabited by law-students in edward iii.'s time. of furnival's inn (originally lord furnival's town mansion, and converted into a law-school in edward vi.'s reign) dugdale says: "after which time the principall and fellows of this inne have paid to the society of lincoln's inne the rent of iiil vis iiid as an yearly rent for the same, as may appear by the accompts of that house; and by speciall order there made, have had these following priviledges: first (viz. eliz.), that the utter-barristers of furnivall's inne, of a yeares continuance, and so certified and allowed by the benchers of lincoln's inne, shall pay no more than four marks apiece for their admittance into that society. next (viz. in eliz.) that every fellow of this inne, who hath been allowed an utter-barrister here, and that hath mooted here two vacations at the utter bar, shall pay no more for their admission into the society of lincoln's inne, than xiiis iiiid, though all utter-barristers of any other inne of chancery (excepting thavyes inne) should pay xxs, and that every inner-barrister of this house, who hath mooted here one vacation at the inner bar, should pay for his admission into this house but xxs, those of other houses (excepting thavyes inne) paying xxvis viiid." the subordinate seminaries of gray's inn, in dugdale's time, were staple inn and barnard's inn. originally the exchange of the london woolen merchants, staple inn was a law-school as early as henry v.'s time. it is probable that bernard's inn became an academy for law-students in the reign of henry vi. [ ] chaucer mentions the temple thus:-- "a manciple there was of the temple, of which all catours might take ensemple for to be wise in buying of vitaile; for whether he pay'd or took by taile, algate he wayted so in his ashate, that he was aye before in good estate. now is not that of god a full faire grace, that such a leude man's wit shall pace the wisdome of an heape of learned men? of masters had he more than thrice ten, that were of law expert and curious, of which there was a dozen in that house, worthy to been stewards of rent and land of any lord that is in england; to maken him live by his proper good in honour debtless, but if he were wood; or live as scarcely as him list desire, and able to helpen all a shire, in any case that might have fallen or hap, and yet the manciple set all her capp." [ ] the 'de laudibus' was written in latin; but for the convenience of readers not familiar with that classic tongue, the quotations from the treatise are given from robert mulcaster's english version. chapter xxxiv. lawyers and gentlemen. thus planted in the fourteenth century beyond the confines of the city, and within easy access of westminster hall, the inns of court and chancery formed an university, which soon became almost as powerful and famous as either oxford or cambridge. for generations they were spoken of collectively as the law-university, and though they were voluntary societies--in their nature akin to the club-houses of modern london--they adopted common rules of discipline, and an uniform system of instruction. students flocked to them in abundance; and whereas the students of oxford and cambridge were drawn from the plebeian ranks of society, the scholars of the law-university were almost invariably the sons of wealthy men and had usually sprung from gentle families. to be a law-student was to be a stripling of quality. the law university enjoyed the same patrician _prestige_ and _éclat_ that now belong to the more aristocratic houses of the old universities. noblemen sent their sons to it in order that they might acquire the style and learning and accomplishments of polite society. a proportion of the students were encouraged to devote themselves to the study of the law and to attend sedulously the sittings of judges in westminster hall; but the majority of well-descended boys who inhabited the inns of chancery were heirs to good estates, and were trained to become their wealth rather than to increase it--to perfect themselves in graceful arts, rather than to qualify themselves to hold briefs. the same was the case in the inns of court, which were so designated--not because they prepared young men to rise in courts of law, but because they taught them to shine in the palaces of kings. it is a mistake to suppose that the inns of court contain at the present time a larger proportion of idle members, who have no intention to practise at the bar, than they contained under the plantagenets and tudors. on the contrary, in the fourteenth and fifteenth centuries, the number of templars who merely played at being lawyers, or were lawyers only in name, was actually as well as relatively greater than the merely _nominal_ lawyers of the temple at the present time. for several generations, and for two centuries after sir john fortescue wrote the 'de laudibus,' the inns-of-court man was more busied in learning to sing than in learning to argue a law cause, more desirous to fence with a sword than to fence with logic. "notwithstanding," runs mulcaster's translation of the 'de laudibus,'[ ] "the same lawes are taught and learned, in a certaine place of publique or common studie, more convenient and apt for attayninge to the knowledge of them, than any other university. for theyr place of studie is situate nigh to the kinges courts, where the same lawes are pleaded and argued, and judgements by the same given by judges, men of gravitie, auncient in yeares, perfit and graduate in the same lawes. wherefore, euerie day in court, the students in those lawes resorte by great numbers into those courts wherein the same lawes are read and taught, as it were in common schooles. this place of studie is far betweene the place of the said courts and the cittie of london, which of all thinges necessarie is the plentifullest of all cities and townes of the realme. so that the said place of studie is not situate within the cittie, where the confluence of people might disturb the quietnes of the studentes, but somewhat severall in the suburbes of the same cittie, and nigher to the saide courts, that the studentes may dayelye at their pleasure have accesse and recourse thither without weariness." setting forth the condition and pursuits of law-students in his day, sir john fortesque continues; "for in these greater inns, there can no student bee mayntayned for lesse expenses by the yeare than twentye markes. and if hee have a servaunt to wait uppon him, as most of them have, then so much the greater will his charges bee. nowe, by reason of this charge, the children onely of noblemenne doo studye the lawes in those innes. for the poore and common sorte of the people are not able to bear so great charges for the exhibytion of theyr chyldren. and marchaunt menne can seldome finde in theyr heartes to hynder theyr merchaundise with so greate yearly expenses. and it thus falleth out that there is scant anye man founde within the realme skilfull and cunning in the lawes, except he be a gentleman borne, and come of noble stocke. wherefore they more than any other kinde of men have a speciall regarde to their nobility, and to the preservation of their honor and fame. and to speake upryghtlye, there is in these greater innes, yea, and in the lesser too, beside the studie of the lawes, as it were an university or schoole of all commendable qualities requisite for noble men. there they learn to sing, and to exercise themselves in all kinde of harmonye. there also they practice daunsing, and other noblemen's pastimes, as they use to do, which are brought up in the king's house. on the working dayes, the most of them apply themselves to the studye of the lawe, and on the holye dayes to the studye of holye scripture;[ ] and out of the tyme of divine service, to the reading of chronicles. for there indeede are vertues studied, and vices exiled. so that, for the endowment of vertue, and abandoning of vice, knights and barrons, with other states and noblemen of the realme, place their children in those innes, though they desire not to have them learned in the lawes, nor to lieue by the practice thereof, but onely uppon their father's allowance. scant at anye tyme is there heard among them any sedition, chyding, or grudging, and yet the offenders are punished with none other payne, but onely to bee amooved from the compayne of their fellowshippe. which punishment they doo more feare than other criminall offendours doo feare imprisonment and yrons: for hee that is once expelled from anye of those fellowshippes is never received to bee a felowe in any of the other fellowshippes. and so by this means there is continuall peace; and their demeanor is lyke the behaviour of such as are coupled together in perfect amytie." any person familiar with the inns of court at the present time will see how closely the law-colleges of victoria's london resemble in many important particulars the law-colleges of fortescue's period. after the fashion of four centuries since young men are still induced to enter them for the sake of honorable companionship, good society, and social prestige, rather than for the sake of legal education. after the remarks already made with regard to musical lawyers in a previous section of this work, it is needless to say that inns of court men are not remarkable for their application to vocal harmony; but the younger members are still remarkable for the zeal with which they endeavor to master the accomplishments which distinguish men of fashion and tone. if the nominal (sometimes they are called 'ornamental') barristers of the fifteenth century liked to read the holy scriptures, the young lawyers of the nineteenth century are no less disposed to read their bibles critically, and argue as to the merits of bishop colenso and his opponents. moreover, the discipline described by fortescue is still found sufficient to maintain order in the inns. writing more than a century after fortescue, sir john ferne, in his 'blazon of gentrie, the glory of generosity, and the lacy's nobility,' observes: "nobleness of blood, joyned with virtue, compteth the person as most meet to the enterprize of any public service; and for that cause it was not for nought that our antient governors in this land, did with a special foresight and wisdom provide, that none should be admitted into the houses of court, being seminaries sending forth men apt to the government of justice, except he were a gentleman of blood. and that this may seem a truth, i myself have seen a kalendar of all those which were together in the society of one of the same houses, about the last year of king henry the fifth, with the armes of their house and family marshalled by their names; and i assure you, the self same monument doth both approve them all to be gentlemen of perfect descents and also the number of them much less than now it is, being at that time in one house scarcely three score."[ ] this passage from an author who delighted to magnify the advantages of generous descent, has contributed to the very general and erroneous impression that until comparatively recent times the members of the english bar were necessarily drawn from the highest ranks of society; and several excellent writers on the antiquities of the law have laid aside their customary caution and strengthened ferne's words with inaccurate comment. thus pearce says of the author of the 'glory of generositie'--"he was one of the advocates for excluding from the inns of court all who were not 'a gentleman by blood,' according to the ancient rule mentioned by fortescue, which seems to have been disregarded in elizabeth's time." fortescue nowhere mentions any such rule, but attributes the aristocratic character of the law-colleges to the high cost of membership. far from implying that men of mean extraction were excluded by an express prohibition, his words justify the inference that no such rule existed in his time. though inns-of-court men were for many generations gentlemen by birth almost without a single exception, it yet remains to be proved that plebeian birth at any period disqualified persons for admission to the law-colleges. if such a restriction ever existed it had disappeared before the close of the fifteenth century--a period not favorable to the views of those who were most anxious to remove the barriers placed by feudal society between the gentle and the vulgar. sir john more (the father of the famous sir thomas) was a judge in the king's bench, although his parentage was obscure; and it is worthy of notice that he was a successful lawyer of fortescue's period. lord chancellor audley was not entitled to bear arms by birth, but was merely the son of a prosperous yeoman. the lowliness of his extraction cannot have been any serious impediment to him, for before the end of his thirty-sixth year he was a sergeant. in the following century the inns received a steadily increasing number of students, who either lacked generous lineage or were the offspring of shameful love. for instance, chief justice wray's birth was scandalous; and if lord ellesmere in his youth reflected with pride on the dignity of his father, sir richard egerton, he had reason to blush for his mother. ferne's lament over the loss of heraldric virtue and splendor, which the inns had sustained in his time, testifies to the presence of a considerable plebeian element amongst the members of the law-university. but that which was marked in the sixteenth was far more apparent in the seventeenth century. scroggs's enemies were wrong in stigmatizing him as a butcher's son, for the odious chief justice was born and bred a gentleman, and jeffreys could boast a decent extraction; but there is abundance of evidence that throughout the reigns of the stuarts the inns swarmed with low-born adventurers. the career of chief justice saunders, who, beginning as a "poor beggar boy," of unknown parentage, raised himself to the chiefship of the king's bench, shows how low an origin a judge might have in the seventeenth century. to mention the names of such men as parker, king, yorke, ryder, and the scotts, without placing beside them the names of such men as henley, harcourt, bathurst, talbot, murray, and erskine, would tend to create an erroneous impression that in the eighteenth century the bar ceased to comprise amongst its industrious members a large aristocratic element. the number of barristers, however, who in that period brought themselves by talent and honorable perseverance into the foremost rank of the legal profession in spite of humble birth, unquestionably shows that ambitious men from the obscure middle classes were more frequently than in any previous century found pushing their fortunes in westminster hall. lord macclesfield was the son of an attorney whose parents were of lowly origin, and whose worldly means were even lower than their ancestral condition. lord chancellor king's father was a grocer and salter who carried on a retail business at exeter; and in his youth the chancellor himself had acted as his father's apprentice--standing behind the counter and wearing the apron and sleeves of a grocer's servitor. philip yorke was the son of a country attorney who could boast neither wealth nor gentle descent. chief justice ryder was the son of a mercer whose shop stood in west smithfield, and grandson of a dissenting minister, who, though he bore the name, is not known to have inherited the blood of the yorkshire ryders. sir william blackstone was the fourth son of a silkman and citizen of london. lords stowell and eldon were the children of a provincial tradesman. the learned and good sir samuel romilly's father was peter romilly, jeweller, of frith street, soho. such were the origins of some of the men who won the prizes of the law in comparatively recent times. the present century has produced an even greater number of barristers who have achieved eminence, and are able to say with honest pride that they are the _first_ gentlemen mentioned in their pedigrees; and so thoroughly has the bar become an open profession, accessible to all persons[ ] who have the means of gentlemen, that no barrister at the present time would have the bad taste or foolish hardihood to express openly his regret that the members of a liberal profession should no longer pay a hurtful attention to illiberal distinctions. according to fortescue, the law-students belonging at the same time to the inns of court and chancery numbered _at least_ one thousand eight hundred in the fifteenth century; and it may be fairly inferred from his words that their number considerably exceeded two thousand. to each of the ten inns of chancery the author of the 'de laudibus' assigns "an hundred students at the least, and to some of them a much greater number;" and he says that the least populous of the four inns of court contained "two hundred students or thereabouts." at the present time the number of barristers--together with fellows of the college of advocates, and certificated special pleaders and conveyancers not at the bar--is shown by the law list for to be somewhat more than .[ ] even when it is borne in mind how much the legal business of the whole nation has necessarily increased with the growth of our commercial prosperity--it being at the same time remembered, upon the other hand, how many times the population of the country has doubled itself since the wars of the roses--few persons will be of opinion that the legal profession, either by the number of its practitioners or its command of employment, is a more conspicuous and prosperous power at the present time than it was in the fifteenth century. ferne was by no means the only gentleman of elizabethan london to deplore the rapid increase in the number of lawyers, and to regret the growing liberality which encouraged--or rather the national prosperity which enabled--men of inferior parentage to adopt the law as a profession. in his address on mr. clerke's elevation to the dignity of a sergeant, lord chancellor hatton, echoing the common complaint concerning the degradation of the law through the swarms of plebeian students and practitioners, observed--"let not the dignitie of the lawe be geven to men unmeete. and i do exhorte you all that are heare present not to call men to the barre or the benches that are so unmeete. i finde that there are now more at the barre in one house than there was in all the innes of court when i was a younge man." notwithstanding the chancellor's earnest statement of his personal recollection of the state of things when he was a young man, there is reason to think that he was quite in error in thinking that lawyers had increased so greatly in number. from a ms. in lord burleigh's collection, it appears that in the number of law-students, resident during term, was only --a smaller number than that which fortescue computed the entire population of the london law-students, at a time when civil war had cruelly diminished the number of men likely to join an aristocratic university. sir edward coke estimated the roll of elizabethan law-students at one thousand, half their number in fortescue's time. coke, however, confined his attention in this matter to the students of inns of court, and paid no attention to inns of chancery. either hatton greatly exaggerated the increase of the legal working profession; or in previous times the proportion of law-students who never became barristers greatly exceeded those who were ultimately called to the bar. something more than a hundred years later, the old cry against the low-born adventurers, who, to the injury of the public and the degradation of the law, were said to overwhelm counsellors and solicitors of superior tone and pedigree, was still frequently heard in the coteries of disappointed candidates for employment in westminster hall, and on the lips of men whose hopes of achieving social distinction were likely to be frustrated so long as plebeian learning and energy were permitted to have free action. in his 'history of hertfordshire' (published in ), sir henry chauncey, sergeant-at-law, exclaims: "but now these mechanicks, ambitious of rule and government, often educate their sons in these seminaries of law, whereby they overstock the profession, and so make it contemptible; whilst the gentry, not sensible of the mischief they draw upon themselves, but also upon the nation, prefer them in their business before their own children, whom they bereave of their employment, formerly designed for their support; qualifying their servants, by the profit of this profession, to purchase their estates, and by this means make them their lords and masters, whilst they lessen the trade of the kingdom, and cause a scarcity of husbandmen, workmen, artificers, and servants in the nation." that the inns of court became less and less aristocratic throughout the seventeenth and eighteenth centuries there is no reason to doubt; but it may be questioned whether it was so overstocked with competent working members, as poor sir henry chauncey imagined it. describing the state of the inns some two generations later, blackstone computed the number of law-students at about a thousand, perhaps slightly more; and he observes that in his time the merely _nominal_ law-students were comparatively few. "wherefore," he says, "few gentlemen now resort to the inns of court, but such for whom the knowledge of practice is absolutely necessary; such, i mean, as are intended for the profession; the rest of our gentry, (not to say our nobility also) having usually retired to their estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws of the land, and indeed with hardly any opportunity of gaining instruction, unless it can be afforded to them in the universities." the folly of those who lamented that men of plebeian rank were allowed to adopt the legal profession as a means of livelihood, was however exceeded by the folly of men of another sort, who endeavored to hide the humble extractions of eminent lawyers, under the ingenious falsehoods of fictitious pedigrees. in the last century, no sooner had a lawyer of humble birth risen to distinction, than he was pestered by fabricators of false genealogies, who implored him to accept their silly romances about his ancestry. in most cases, these ridiculous applicants hoped to receive money for their dishonest representations; but not seldom it happened that they were actuated by a sincere desire to protect the heraldic honor of the law from the aspersions of those who maintained that a man might fight his way to the woolsack, although his father had been a tender of swine. sometimes these imaginative chroniclers, not content with fabricating a genealogical chart for a _parvenu_ lord chancellor, insisted that he should permit them to write their lives in such a fashion, that their earlier experiences should seem to be in harmony with their later fortunes. lord macclesfield (the son of a poor and ill-descended country attorney), was traced by officious adulators to reginald le parker, who accompanied edward i., while prince of wales, to the holy land. in like manner a manufacturer of genealogies traced lord eldon to sir michael scott of balwearie. when one of this servile school of worshippers approached lord thurlow with an assurance that he was of kin with cromwell's secretary thurloe, the chancellor, with bluff honesty, responded, "sir, as mr. secretary thurloe was, like myself, a suffolk man, you have an excuse for your mistake. in the seventeenth century two thurlows, who were in no way related to each other, flourished in suffolk. one was cromwell's secretary thurloe, the other was thurlow, the suffolk carrier. i am descended from the carrier." notwithstanding lord thurlow's frequent and consistent disavowals of pretension to any heraldic pedigree, his collateral descendants are credited in the 'peerages' with a descent from an ancient family. [ ] this charming book was written during the author's exile, which began in . [ ] this passage is one of several passages in pre-reformation english literature which certify that the bible was much more widely and carefully read by lettered and studious layman, in times prior to the rupture between england and rome, than many persons are aware, and some violent writers like to acknowledge. [ ] pathetically deploring the change wrought by time, ferne also observes of the inns of court,--"pity to see the same places, through the malignity of the times, and the negligence of those which should have had care to the same, been altered quite from their first institution." [ ] it is not unusual now-a-days to see on the screened list of students about to be called to the bar the names of gentlemen who have caused themselves to be described in the quasi-public lists as the sons of tradesmen. some few years since a gentleman who has already made his name known amongst juniors, was thus 'screened'in the four halls as the son of a petty tradesman in an obscure quarter of london; and assuming that his conduct was due to self-respect and affectionate regard for his parent, it seemed to most observers that the young lawyer, in thus frankly stating his lowly origin, acted with spirit and dignity. it may be that years hence this highly-accomplished gentleman will, like lord tenterden and lord st. leonards (both of whom were the sons of honest but humble tradesmen), see his name placed upon the roll of england's hereditary noblesse. [ ] of this number about reside in or near london and maintain some apparent connexion with the inns of court. of the remainder, some reside in scotland, some in ireland, some in the english provinces, some in the colonies; whilst some of them, although their names are still on the law list, have ceased to regard themselves as members of the legal profession. chapter xxxv. law-french and law-latin. no circumstances of the norman conquest more forcibly illustrate the humiliation of the conquered people, than the measures by which the invaders imposed their language on the public courts of the country, and endeavored to make it permanently usurp the place of the mother-tongue of the despised multitude; and no fact more signally displays our conservative temper than the general reluctance of english society to relinquish the use of the french words and phrases which still tincture the language of parliament, and the procedures of westminster hall, recalling to our minds the insolent domination of a few powerful families who occupied our country by force, and ruled our forefathers with vigorous injustice. frenchmen by birth, education, sympathy, william's barons did their utmost to make england a new france: and for several generations the descendants of the successful invaders were no less eager to abolish every usage which could remind the vanquished race of their lost supremacy. french became the language of parliament and the council-chamber. it was spoken by the judges who dispensed justice in the name of a french king, and by the lawyers who followed the royal court in the train of the french-speaking judges. in the hunting-field and the lists no gentleman entitled to bear coat-armour deigned to utter a word of english: it was the same in fives' court and at the gambling-table. schoolmasters were ordered to teach their pupils to construe from latin into french, instead of into english; and young men of anglo-saxon extraction, bent on rising in the world by native talent and norman patronage, labored to acquire the language of the ruling class and forget the accents of their ancestors. the language and usages of modern england abound with traces of the french of this period. to every act that obtained the royal assent during last session of parliament, the queen said "la reyne le veult." every bill which is sent up from the commons to the lords, an officer of the lower house endorses with "soit bailé aux seigneurs;" and no bill is ever sent down from the lords to the commons until a corresponding officer of the upper house has written on its back, "soit bailé aux communes." in like manner our parochial usages, local sports, and domestic games continually remind us of the obstinate tenacity with which the anglo-saxon race has preserved, and still preserves, the vestiges of its ancient subjection to a foreign yoke. the crier of a country town, in any of england's fertile provinces, never proclaims the loss of a yeoman's sporting-dog, the auction of a bankrupt dealer's stock-in-trade, or the impounding of a strayed cow, until he has commanded, in norman-french, the attention of the sleepy rustics. the language of the stable and the kennel is rich in traces of norman influence; and in backgammon, as played by orthodox players, we have a suggestive memorial of those norman nobles, of whom fortescue, in the 'de laudibus' observes: "neither had they delyght to hunt, and to exercise other sportes and pastimes, as dyce-play and the hand-ball, but in their own proper tongue." in behalf of the norman _noblesse_ it should be borne in mind that their policy in this matter was less intentionally vexatious and insolent than it has appeared to superficial observers. in the great majority of causes the suitors were frenchmen; and it was just as reasonable that they should like to understand the arguments of their counsel and judges, as it is reasonable for suitors in the present day to require the proceedings in westminster hall to be clothed in the language most familiar to the majority of persons seeking justice in its courts. if the use of french pleadings was hard on the one anglo-saxon suitor who demanded justice in henry i.'s time, the use of english pleadings would have been equally annoying to the nine french gentlemen who appeared for the same purpose in the king's court. it was greatly to be desired that the two races should have one common language; and common sense ordained that the tongue of the one or the other race should be adopted as the national language. which side therefore was to be at the pains to learn a new tongue? should the conquerors labor to acquire anglo-saxon? or should the conquered be required to learn french? in these days the cultivated englishmen who hold india by military force, even as the norman invaders held england, by the right of might, settle a similar question by taking upon themselves the trouble of learning as much of the asiatic dialects as is necessary for purposes of business. but the norman barons were not cultivated; and for many generations ignorance was with them an affair of pride no less than of constitutional inclination. soon ambitious englishmen acquired the new language, in order to use it as an instrument for personal advancement. the saxon stripling who could keep accounts in norman fashion, and speak french as fluently as his mother tongue, might hope to sell his knowledge in a good market. as the steward of a norman baron he might negotiate between my lord and my lord's tenants, letting my lord know as much of his tenant's wishes, and revealing to the tenants as much of their lord's intentions as suited his purpose. uniting in his own person the powers of interpreter, arbitrator, and steward, he possessed enviable opportunities and facilities for acquiring wealth. not seldom, when he had grown rich, or whilst his fortunes were in the ascendant, he assumed a french name as well as a french accent; and having persuaded himself and his younger neighbors that he was a frenchman, he in some cases bequeathed to his children an ample estate and a norman pedigree. in certain causes in the law courts the agent (by whatever title known) who was a perfect master of the three languages (french, latin, and english) had greatly the advantage over an opposing agent who could speak only french and latin. from the conquest till the latter half of the fourteenth century the pleadings in courts of justice were in norman-french; but in the ed. iii., it was ordained by the king "that all plees, which be to be pleded in any of his courts, before any of his justices; or in his other places; or before any of his other ministers; or in the courts and places of any other lords within the realm, shall be pleded, shewed, and defended, answered, debated, and judged in the english tongue, and that they be entred and enrolled in latine. and that the laws and customs of the same realm, termes, and processes, be holden and kept as they be, and have been before this time; and that by the antient termes and forms of the declarations no man be prejudiced; so that the matter of the action be fully shewed in the demonstration and in the writ." long before this wise measure of reform was obtained by the urgent wishes of the nation, the french of the law courts had become so corrupt and unlike the language of the invaders, that it was scarcely more intelligible to educated natives of france than to most englishmen of the highest rank. a jargon compounded of french and latin, none save professional lawyers could translate it with readiness or accuracy; and whilst it unquestionably kept suitors in ignorance of their own affairs, there is reason to believe that it often perplexed the most skilful of those official interpreters who were never weary of extolling his lucidity and precision. but though english lawyers were thus expressly forbidden in to plead in law-french, they persisted in using the hybrid jargon for reports and treatises so late as george ii.'s reign; and for an equal length of time they seized every occasion to introduce scraps of law-french into their speeches at the bars of the different courts. it should be observed that these antiquarian advocates were enabled thus to display their useless erudition by the provisions of king edward's act, which, while it forbade french _pleadings_, specially ordained the retention of french terms. roger north's essay 'on the study of the laws' contains amusing testimony to the affection with which the lawyers of his day regarded their law-french, and also shows how largely it was used till the close of the seventeenth century by the orators of westminster hall. "here i must stay to observe," says the author, enthusiastically, "the necessity of a student's early application to learn the old law-french, for these books, and most others of considerable authority, are delivered in it. some may think that because the law-french is no better than the old norman corrupted, and now a deformed hotch-potch of the english and latin mixed together, it is not fit for a polite spark to foul himself with; but this nicety is so desperate a mistake, that lawyer and law-french are coincident; one will not stand without the other." so enamored was he of the grace and excellence of law-reporters' french, that he regarded it as a delightful study for a man of fashion, and maintained that no barrister would do justice to the law and the interests of his clients who did not season his sentences with norman verbiage. "the law," he held, "is scarcely expressible properly in english, and when it is done, it must be _françoise_, or very uncouth." edward iii.'s measure prohibitory of french pleadings had therefore comparatively little influence on the educational course of law-students. the published reports of trials, known by the name of year-books, were composed in french, until the series terminated in the time of henry viii.; and so late as george ii.'s reign, chief baron comyn preferred such words as 'chemin,' 'dismes,' and 'baron and feme,' to such words as 'highway,' 'tithes,' 'husband and wife.' more liberal than the majority of his legal brethren, even as his enlightenment with regard to public affairs exceeded that of ordinary politicians of his time, sir edward coke wrote his commentaries in english, but when he published them, he felt it right to soothe the alarm of lawyers by assuring them that his departure from ancient usage could have no disastrous consequences. "i cannot conjecture," he apologetically observes in his preface, "that the general communicating these laws in the english tongue can work any inconvenience." some of the primary text-books of legal lore had been rendered into english, and some most valuable treatises had been written and published in the mother tongue of the country; but in the seventeenth century no inns-of-court man could acquire an adequate acquaintance with the usages and rules of our courts and the decisions of past judges, until he was able to study the year-books and read littleton in the original. to acquire this singular language--a _dead_ tongue that cannot be said to have ever lived--was the first object of the law-student. he worked at it in his chamber, and with faltering and uncertain accents essayed to speak it at the periodic mootings in which he was required to take part before he could be called to the bar, and also after he had become an utter-barrister. in his 'autobiography,' sir simonds d'ewes makes mention in several places of his law-french exercises (_temp._ james i.), and in one place of his personal story he observes, "i had twice mooted in law-french before i was called to the bar, and several times after i was made an utter-barrister, in our open hall. thrice also before i was of the bar, i argued the reader's cases at the inns of chancery publicly, and six times afterwards. and then also, being an utter-barrister, i had twice argued our middle-temple reader's case at the cupboard, and sat nine times in our hall at the bench, and argued such cases in english as had before been argued by young gentlemen or utter-barristers in law-french bareheaded." amongst the excellent changes by which the more enlightened of the commonwealth lawyers sought to lessen the public clamor of law-reform was the resolution that all legal records should be kept, and all writs composed, in the language of the country. hitherto the law records had been kept in a latin that was quite as barbarous as the french used by the reporters; and the determination to abolish a custom which served only to obscure the operations of justice and to confound the illiterate was hailed by the more intelligent purchasers of law as a notable step in the right direction. but the reform was by no means acceptable to the majority of the bar, who did not hesitate to stigmatize the measure as a dangerous innovation--which would prove injurious to learned lawyers and peace-loving citizens, although it might possibly serve the purposes of ignorant counsel and litigious 'lay gents.'[ ]the legal literature of three generations following charles i.'s execution abounds with contemptuous allusions to the 'english times' of cromwell; the old-fashioned reporters, hugging their norman-french and looking with suspicion on popular intelligence, were vehement in expressing their contempt for the prevalent misuse of the mother tongue. "i have," observes styles, in the preface to his reports, "made these reports speak english; not that i believe that they will be thereby more generally useful, for i have always been and yet am of opinion, that that part of the common law which is in the english hath only occasioned the making of unquiet spirits contentiously knowing, and more apt to offend others than to defend themselves; but i have done it in obedience to authority, and to stop the mouths of such of this english age, who, though they be confessedly different in their minds and judgments, as the builders of babel were in their language, yet do think it vain, if not impious, to speak or understand more than their own mother tongue." in like manner, whitelock's uncle bulstrode, the celebrated reporter, says of the second part of his reports, "that he had manny years since perfected the words in french, in which language he had desired it might have seen the light, being most proper for it, and most convenient for the professors of the law." the restorers who raised charles ii. to his father's throne, lost no time in recalling latin to the records and writs; and so gladly did the reporters and the practising counsel avail themselves of the reaction in favor of discarded usages, that more law-french was written and talked in westminster hall during the time of the restored king, than had been penned and spoken throughout the first fifty years of the seventeenth century. the vexatious and indescribably absurd use of law-latin in records, writs, and written pleadings, was finally put an end to by statute george ii. c. ; but this bill, which discarded for legal processes a cumbrous and harsh language, that was alike unmusical and inexact, and would have been utterly unintelligible to a roman gentleman of the augustan period, did not become law without much opposition from some of the authorities of westminster hall. lord raymond, chief justice of the king's bench, spoke in accordance with opinions that had many supporters on the bench and at the bar, when he expressed his warm disapprobation of the proposed measure, and sarcastically observed "that if the bill paused, the law might likewise be translated into welsh, since many in wales understood not english." in the same spirit sir willian blackstone and more recent authorities have lamented the loss of law-latin. lord campbell, in the 'chancellors,' records that he "heard the late lord ellenborough from the bench regret the change, on the ground that it had had the tendency to make attorneys illiterate." the sneer by which lord raymond endeavored to cast discredit on the proposal to abolish law-latin, was recalled after the lapse of many years by sergeant heywood, who forthwith acted upon it as though it originated in serious thought. whilst acting as chief justice of the carmarthen circuit, the sergeant was presiding over a trial of murder, when it was discovered that neither the prisoner, nor any member of the jury, could understand a word of english; under these circumstances it was suggested that the evidence and the charge should be explained _verbatim_, to the prisoner and his twelve triers by an interpreter. to this reasonable petition that the testimony should be presented in a welsh dress, the judge replied that, "to accede to the request would be to repeal the act of parliament, which required that all proceedings in courts of justice should be in the english tongue, and that the case of a trial in wales, in which the prisoner and jury should not understand english, was a case not provided for, although the attention of the legislature had been called to it by that great judge lord raymond." the judge having thus decided, the inquiry proceeded--without the help of an interpreter--the counsel for the prosecution favoring the jury with an eloquent harangue, no single sentence of which was intelligible to them; a series of witnesses proving to english auditors, beyond reach of doubt, that the prisoner had deliberately murdered his wife; and finally the judge instructing the jury, in language which was as insignificant to their minds as the same quantity of obsolete law-french would have been, that it was their duty to return a verdict of 'guilty.' throwing themselves into the humor of the business, the welsh jurymen, although they were quite familiar with the facts of the case, acquitted the murderer, much to the encouragement of many wretched welsh husbands anxious for a termination of their matrimonial sufferings. [ ] in the seventeenth century, lawyers usually called their clients and the non-legal public 'lay gents.' chapter xxxvi. student life in old time. from statements made in previous chapters, it may be seen that in ancient times the law university was a far more conspicuous feature of the metropolis than it has been in more modern generations. in the fifteenth century the law students of the town numbered about two thousand; in elizabethan london their number fluctuated between one thousand and two thousand; towards the close of charles ii.'s reign they were probably much less than fifteen hundred; in the middle of the eighteenth century they do not seem to have much exceeded one thousand. thus at a time when the entire population of the capital was considerably less than the population of a third-rate provincial town of modern england, the inns of court and chancery contained more undergraduates than would be found on the books of the oxford colleges at the present time. henry viii.'s london looked to the university for mirth, news, trade. during vacations there was but little stir in the taverns and shops of fleet street; haberdashers and vintners sate idle; musicians starved; and the streets of the capital were comparatively empty when the students had withdrawn to spend their holidays in the country. as soon as the gentlemen of the robe returned to town all was brisk and merry again. as the town grew in extent and population, the social influence of the university gradually decreased; but in elizabethan london the _éclat_ of the inns was at its brightest, and during the reigns of elizabeth's two nearest successors london submitted to the inns-of-court men as arbiters of all matters pertaining to taste--copying their dress, slang, amusements, and vices. the same may be said, with less emphasis, of charles ii.'s london. under the 'merry monarch' theatrical managers were especially anxious to please the inns, for they knew that no play would succeed which the lawyers had resolved to damn--that no actor could achieve popularity if the gallants of the temple combined to laugh him down--that no company of performers could retain public favor when they had lost the countenance of law-colleges. something of this power the young lawyers retained beyond the middle of the last century. fielding and addison caught with nervous eagerness the critical gossip of the temple and chancery lane, just as congreve and wycherly, dryden and cowley had caught it in previous generations. fashionable tradesmen and caterers for the amusement of the public made their engagements and speculations with reference to the opening of term. new plays, new books, new toys were never offered for the first time to london purchasers when the lawyers were away. all that the 'season' is to modern london, the 'term' was to old london, from the accession of henry viii. to the death of george ii., and many of the existing commercial and fashionable arrangements of a london 'season' maybe traced to the old-world 'term.' in olden time the influence of the law-colleges was as great upon politics as upon fashion. sheltering members of every powerful family in the country they were centres of political agitation, and places for the secret discussion of public affairs. whatever plot was in course of incubation, the inns invariably harbored persons who were cognisant of the conspiracy. when faction decided on open rebellion or hidden treason, the agents of the malcontent leaders gathered together in the inns, where, so long as they did not rouse the suspicions of the authorities and maintained the bearing of studious men, they could hire assassins, plan risings, hold interviews with fellow-conspirators, and nurse their nefarious projects into achievement. at periods of danger therefore spies were set to watch the gates of the hostels, and mark who entered them. governments took great pains to ascertain the secret life of the collegians. a succession of royal directions for the discipline of the inns under the tudors and stuarts points to the jealousy and constant apprehensions with which the sovereigns of england long regarded those convenient lurking-places for restless spirits and dangerous adversaries. just as the student-quarter of paris is still watched by a vigilant police, so the inns of court were closely watched by the agents of wolsey and thomas cromwell, of burleigh and buckingham. during the troubles and contentions of elizabeth's reign lord burleigh was regularly informed concerning the life of the inns, the number of students in and out of town, the parentage and demeanor of new members, the gossip of the halls, and the rumors of the cloisters. in proportion as the political temper and action of the lawyers were deemed matters of high importance, their political indiscretions and misdemeanors were promptly and sometimes ferociously punished. an idle joke over a pot of wine sometimes cost a witty barrister his social rank and his ears. to promote a wholesome fear of authority in the colleges, government every now and then flogged a student at the cart's tail in holborn, or pilloried a sad apprentice of the law in chancery lane, or hung an ancient on a gibbet at the entrance of his inn. the anecdote-books abound with good stories that illustrate the political excitability of the inns in past times, and the energy with which ministers were wont to repress the first manifestations of insubordination. rushworth records the adventure of four young men of lincoln's inn who throw aside prudence and sobriety in a tavern hard by their inn, and drank to "the confusion of the archbishop of canterbury." the next day, full of penitence and head-ache, the offenders were brought before the council, and called to account for their scandalous conduct; when they would have fared ill had not the earl of dorset done them good service, and privately instructed them to say in their defence, that they had not drunk confusion to the archbishop but to the archbishop's _foes_. on this ingenious representation, the council supposed that the drawer--on whose information the proceedings were taken--had failed to catch the last word of the toast; and consequently the young gentlemen were dismissed with a 'light admonition,' much to their own surprise and the informer's chagrin. of the political explosiveness of the inns in charles ii.'s time narcissus luttrell gives the following illustration in his diary, under date june and , :--"the th was a project sett on foot in grayes inn for the carrying on an addresse for thankes to his majestie for his late declaration; and was moved that day in the hall by some at dinner, and being (as is usual) sent to the barre messe to be by them recommended to the bench, but was rejected both by bench and barr; but the other side seeing they could doe no good this way, they gott about forty together and went to the tavern, and there subscribed the said addresse in the name of the truelye loyall gentlemen of grayes inn. the chief sticklers for the said addition were sir william seroggs, jun., robert fairebeard, capt. stowe, capt. radcliffe, one yalden, with others, to the number of or thereabouts; many of them sharpers about town, with clerks not out of their time, and young men newly come from the university. and some of them went the th to windsor, and presented the said addresse to his majesty: who was pleasd to give them his thanks and confer (it is said) knighthood on the said mr. fairebeard; this proves a mistake since. the th was much such another addresse carried on in the middle temple, where several templars, meeting about one or two that afternoon in the hall for that purpose, they began to debate it, but they were opposed till the hall began to fill; and then the addressers called for mr. montague to take the chaire; on which a poll was demanded, but the addressers refused it, and carried mr. montague and sett him in the chaire, and the other part pulled him out, on which high words grew, and some blows were given; but the addressers seeing they could doe no good with it in the hall, adjourned to the divill tavern, and there signed the addresse; the other party kept in the hall, and fell to protesting against such illegall and arbitrary proceedings, subscribing their names to a greater number than the addressers were, and presented the same to the bench as a grievance." like the king's head tavern, which stood in chancery lane, the devil tavern, in fleet street, was a favorite house with the caroline lawyers. its proximity to the temple secured the special patronage of the templars, whereas the king's head was more frequented by lincoln's-inn men; and in the tavern-haunting days of the seventeenth century those two places of entertainment saw many a wild and dissolute scene. unlike chattelin, who endeavored to satisfy his guests with delicate repasts and light wines, the hosts of the devil and the king's head provided the more substantial fare of old england, and laid themselves out to please roysterers who liked pots of ale in the morning, and were wont to drink brandy by the pint as the clocks struck midnight. nando's, the house where thurlow in his student-period used to hold nightly disputations with all comers of suitable social rank, was an orderly place in comparison with these more venerable hostelries; and though the mitre, cock, and rainbow have witnessed a good deal of deep drinking, it may be questioned if they, or any other ancient taverns of the legal quarter, encouraged a more boisterous and reckless revelry than that which constituted the ordinary course of business at the king's head and the devil. in his notes for jan. - , mr. narcissus luttrell observes--"the th, at night, some young gentlemen of the temple went to the king's head tavern, chancery lane, committing strange outrages there, breaking windowes, &c., which the watch hearing of came to disperse them; but they sending for severall of the watermen with halberts that attend their comptroller of the revells, were engaged in a desperate riott, in which one of the watchmen was run into the body and lies very ill; but the watchmen secured one or two of the watermen." eleven years later the diarist records: "jan. . one batsill, a young gentleman of the temple, was committed to newgate for wounding a captain at the devil tavern in fleet street on saturday last." such ebullitions of manly spirit--ebullitions pleasant enough to the humorist, but occasionally productive of very disagreeable and embarrassing consequences--were not uncommon in the neighborhood of the inns of court whilst the christmas revels were in progress. a tempestuous, hot-blooded, irascible set were these gentlemen of the law-colleges, more zealous for their own honor than careful for the feelings of their neighbors. alternately warring with sharp tongues, sharp pens, and sharp swords they went on losing their tempers, friends, and lives in the most gallant and picturesque manner imaginable. here is a nice little row which occurred in the middle temple hall during the days of good queen bess! "the records of the society," says mr. foss, "preserve an account of the expulsion of a member, which is rendered peculiarly interesting in consequence of the eminence to which the delinquent afterwards attained as a statesman, a poet, and a lawyer. whilst the masters of the bench and other members of the society were sitting quietly at dinner on february , - , john davis came into the hall with his hat on his head, and attended by two persons armed with swords, and going up to the barrister's table, where richard martin was sitting, he pulled out from under his gown a cudgel 'quem vulgariter vocant a bastinado,' and struck him over the head repeatedly, and with so much violence that the bastinado was shivered into many pieces. then retiring to the bottom of the hall, he drew one of his attendants' swords and flourished it over his head, turning his face towards martin, and then turning away down the water steps of the temple, threw himself into a boat. for this outrageous act he was immediately disbarred and expelled the house, and deprived for ever of all authority to speak or consult in law. after nearly four years' retirement he petitioned the benchers for his restoration, which they accorded on october , , upon his making a public submission in the hall, and asking pardon of mr. martin, who at once generously forgave him." both the principals in this scandalous outbreak and subsequent reconciliation became honorably known in their profession--martin rising to be a recorder of london and a member of parliament; and davies acting as attorney general of ireland and speaker of the irish parliament, and achieving such a status in politics and law that he was appointed to the chief justiceship of england, an office, however, which sudden death prevented him from filling. nor must it be imagined that gay manners and lax morals were less general amongst the veterans than amongst the youngsters of the bar. judges and sergeants were quite as prone to levity and godless riot as students about to be called; and such was the freedom permitted by professional decorum that leading advocates habitually met their clients in taverns, and having talked themselves dry at the bars of westminster hall, drank themselves speechless at the bars of strand taverns--ere they reeled again into their chambers. the same habits of uproarious self-indulgence were in vogue with the benchers of the inns, and the doctors of doctors' commons. hale's austerity was the exceptional demeanor of a pious man protesting against the wickedness of an impious age. had it not been for the shortness of time that had elapsed since algernon sidney's trial and sentence, john evelyn would have seen no reason for censuring the loud hilarity and drunkenness of jeffreys and withings at mrs. castle's wedding. in some respects, however, the social atmosphere of the inns was far more wholesome in the days of elizabeth, and for the hundred years following her reign, than it is at present. sprung in most cases from legal families, the students who were educated to be working members of the bar lived much more under the observation of their older relations, and in closer intercourse with their mothers and sisters than they do at present. now-a-days young templars, fresh from the universities, would be uneasy and irritable under strict domestic control; and as men with beards and five-and-twenty years' knowledge of the world, they would resent any attempt to draw them within the lines of domestic control. but in elizabethan and also in stuart london, law-students were considerably younger than they are under victoria. moreover, the usage of the period trained young men to submit with cheerfulness to a parental discipline that would be deemed intolerable by our own youngsters. during the first terms of their eight, seven, or at least six years of pupilage, until they could secure quarters within college walls, students frequently lodged in the houses or chambers of near relations who were established in the immediate vicinity of the inns. a judge with a house in fleet street, an eminent counsel with a family mansion in holborn, or an office-holder with commodious chambers in chancery lane, usually numbered amongst the members of his family a son, or nephew, or cousin who was keeping terms for the bar. thus placed under the immediate superintendence of an elder whom he regarded with affection and pride, and surrounded by the wholesome interests of a refined domestic circle, the raw student was preserved from much folly and ill-doing into which he would have fallen had he been thrown entirely on his own resources for amusement. the pecuniary means of inns-of-court students have not varied much throughout the last twelve generations. in days when money was scarce and very precious they of course lived on a smaller number of coins than they require in these days when gold and silver are comparatively abundant and cheap; but it is reasonable to suppose that in every period the allowances, on which the less affluent of them subsisted, represent the amounts on which young men of their respective times were just able to maintain the figure and style of independent gentlemen. the costly pageants and feasts of the inns in old days must not be taken as indicative of the pecuniary resources of the common run of students; for the splendor of those entertainments was mainly due to the munificence of those more wealthy members who by a liberal and even profuse expenditure purchased a right to control the diversions of the colleges. fortescue, speaking of his own time, says: "there can no student bee mayntayned for lesse expenses by the yeare than twentye markes. and if hee haue a seruant to waite uppon him, as most of them haue, then so much the greater will his charges bee." hence it appears that during the most patrician period of the law university, when wealthy persons were accustomed to maintain ostentatious retinues of servants, a law-student often had no private personal attendant. an ordinance shows that in elizabethan london the inns-of-court men were waited upon by laundresses or bedmakers who served and took wages from several masters at the same time. it would be interesting to ascertain the exact time when the "laundress" was first introduced into the temple. she certainly flourished in the days of queen bess; and roger north's piquant description of his brother's laundress is applicable to many of her successors who are looking after their perquisites at the present date. "the housekeeper," says roger, "had been formerly his lordship's laundress at the temple, and knew well her master's brother so early as when he was at the writing-school. she _was a phthisical old woman, and could scarce crawl upstairs once a day_." this general employment of servants who were common to several masters would alone prove that the inns-of-court men in the seventeenth century felt it convenient to husband their resources, and exercise economy. throughout that century sixty pounds was deemed a sufficient income for a temple student; and though it was a scant allowance, some young fellows managed to push on with a still more modest revenue. simonds d'ewes had £ per annum during his student course, and £ a year on becoming an utter-barrister. "it pleased god also in mercy," he writes, "after this to ease me of that continual want or short stipend i had for about five years last past groaned under; for my father, immediately on my call to the bar, enlarged my former allowance with forty pounds more annually; so as, after this plentiful annuity of one hundred pounds was duly and quarterly paid me by him, i found myself easyd of so many cares and discontents as i may well account that the th day of june foregoing the first day of my outward happiness since the decease of my dearest mother." all things considered, a bachelor in james i.'s london with a clear income of £ per annum was on the whole as well off for his time as a young barrister of the present day would be with an annual allowance of £ or £ . francis north, when a student, was allowed only £ per annum; and as soon as he was called and began to earn a little money, his parsimonious father reduced the stipend by £ ; but, adds roger north, "to do right to his good father, he paid him that fifty pounds a year as long as he lived, saying he would not discourage industry by rewarding it, when successful, with less." george jeffreys, in his student-days, smarted under a still more galling penury, for he was allowed only £ a year, £ being for his clothes, and £ for the rest of his expenditure. in the following century the nominal incomes of law-students rose in proportion as the wealth of the country increased and the currency fell in value. in george ii.'s time a young templar expected his father to allow him £ a year, and on encouragement would spend twice that amount in the same time. henry fielding's allowance from general fielding was £ per annum; but as he said, with a laugh, he had too feeling and dutiful a nature to press an affectionate father for money which he was totally unable to pay. at the present time £ per annum is about the smallest sum on which a law-student can live with outward decency; and £ per annum the lowest amount on which a chamber barrister can live with suitable dignity and comfort. if he has to maintain the expenses of a distant circuit mr. briefless requires from £ to £ more. alas! how many of mr. briefless's meritorious and most ornamental kind are compelled to shift on far less ample means! how many of them periodically repeat the jest of poor a----, who made this brief and suggestive official return to the income tax commissioners--"i am totally dependent on my father, who allows me--nothing!" chapter xxxvii. readers and mootmen. romantic eulogists of the inns of court maintain that, as an instrument of education, the law-university was nearly perfect for many generations after its consolidation. that in modern time abuses have impaired its faculties and diminished its usefulness they admit. some of them are candid enough to allow that, as a school for the systematic study of law, it is under existing circumstances a deplorably deficient machine; but they unite in declaring that there _was_ a time when the system of the combined colleges was complete and thoroughly efficacious. the more cautious of these eulogists decline to state the exact limits of the period when the actual condition of the university merited their cordial approval, but they concur in pointing to the years between the accession of henry vii. and the death of james i., as comprising the brightest days of its academical vigor and renown. it is however worthy of observation that throughout the times when the legal learning and discipline of the colleges are described to have been admirable, the system and the students by no means won the approbation of those critical authorities who were best able to see their failings and merits. wolsey was so strongly impressed by the faulty education of the barristers who practised before him, and more especially by their total ignorance of the principles of jurisprudence, that he prepared a plan for a new university which should be established in london, and should impart a liberal and exact knowledge of law. had he lived to carry out his scheme it is most probable that the inns of court and chancery would have become subsidiary and subordinate establishments to the new foundation. in this matter, sympathizing with the more enlightened minds of his age, sir nicholas bacon was no less desirous than the great cardinal that a new law university should be planted in town, and he urged on henry viii. the propriety of devoting a certain portion of the confiscated church property to the foundation and endowment of such an institution. on paper the scheme of the old exercises and degrees looks very imposing, and those who delight in painting fancy pictures may infer from them that the scholastic order of the colleges was perfect. before a young man could be called to the bar, he had under ordinary circumstances to spend seven or eight years in arguing cases at the inns of chancery, in proving his knowledge of law and law-french at moots, in sharpening his wits at case-putting, in patient study of the year-books, and in watching the trials of westminster hall. after his call he was required to spend another period in study and academic exercise before he presumed to raise his voice at the bar; and in his progress to the highest rank of his profession he was expected to labor in educating the students of his house as assistant-reader, single-reader, double-reader. the gravest lawyers of every inn were bound to aid in the task of teaching the mysteries of the law to the rising generation. the old ordinances assumed that the law-student was thirsting for a knowledge of law, and that the veterans were no less eager to impart it. during term law was talked in hall at dinner and supper, and after these meals the collegians argued points. "the cases were put" after the earlier repast, and twice or thrice a week moots were "brought in" after the later meal. the students were also encouraged to assemble towards the close of each day and practise 'case-putting' in their gardens and in the cloisters of the temple or lincoln's inn. the 'great fire' of - having destroyed the temple cloisters, some of the benchers proposed to erect chambers on the ground, to and fro upon which law-students had for generations walked whilst they wrangled aloud; but the earl of nottingham, recalling the days when young heneage finch used to put cases with his contemporary students, strangled the proposal at its birth, and sir christopher wren subsequently built the cloisters which may be seen at the present day. but there is reason to fear that at a very early period in their history the inns of court began to pay more attention to certain outward forms of instruction than to instruction itself. the unbiassed inquirer is driven to suspect that 'case-putting' soon became an idle ceremony, and 'mooting' a mere pastime. gentlemen ate heartily in the sixteenth and seventeenth centuries; and it is not easy to believe that immediately after a twelve o'clock dinner benchers were in the best possible mood to teach, or students in the fittest condition for learning. it is credible that these post-prandial exercitations were often enlivened by sparkling quips and droll occurrences; but it is less easy to believe that they were characterised by severe thought and logical exactness. so also with the after-supper exercises. the six o'clock suppers of the lawyers were no light repasts, but hearty meals of meat and bread, washed down by '_green pots_' of ale and wine. when 'the horn' sounded for supper, the student was in most cases better able to see the truth of knotty points than when in compliance with etiquette he bowed to the benchers, and asked if it was their pleasure to hear a moot. it seems probable that long before 'case-puttings' and 'mootings' were altogether disused, the old benchers were wont to wink mischievously at each other when they prepared to teach the boys, and that sometimes they would turn away from the proceedings of a moot with an air of disdain or indifference. the inquirer is not induced to rate more highly the intellectual effort of such exercises because the teachers refreshed their exhausted powers with bread and beer as soon as the arguments were closed. when such men as coke and francis bacon were the readers, the students were entertained with lectures of surpassing excellence; but it was seldom that such readers could be found. it seems also that at an early period men became readers, not because they had any especial aptitude for offices of instruction, or because they had some especial fund of information--but simply because it was their turn to read. routine placed them in the pulpit for a certain number of weeks; and when they had done all that routine required of them, and had thereby qualified themselves for promotion to the rank of sergeant, they took their seats amongst the benchers and ancients with the resolution not to trouble themselves again about the intellectual progress of the boys. soon also the chief teacher of an inn of court became its chief feaster and principal entertainer; and in like manner his subordinates in office, such as assistant readers and readers elect, were required to put their hands into their pockets, and feed their pupils with venison and wine as well as with law and equity. it is amusing to observe how little dugdale has to say about the professional duties of readers--and how much about their hospitable functions and responsibilities. philip and mary ordered that no reader of the middle temple should give away more than fifteen bucks during his readings; but so greatly did the cost of readers' entertainments increase in the following century, that dugdale observes--"but the times are altered; there being few summer readers who, in half the time that heretofore a reading was wont to continue, spent so little as threescore bucks, besides red deer; some have spent fourscore, some an hundred." just as readers were required to spend more in hospitality, they were required to display less learning. sound lawyers avoided election to the readers' chairs, leaving them to be filled by rich men who could afford to feast the nobility and gentry, or at least by men who were willing to purchase social _éclat_ with a lavish outlay of money. under charles ii. the 'readings' were too often nothing better than scandalous exhibitions of mental incapacity: and having sunk into disrepute, they died out before the accession of james ii. the scandalous and beastly disorder of the grand day feasts at the middle temple, during francis north's tenure of the reader's office, was one of the causes that led to the discontinuance of reader's banquets at that house; and the other inns gladly followed the example of the middle temple in putting an end to a custom which had ceased to promote the dignity of the law. of this feast, and his brother's part in it, roger north says: "he (_i.e._ francis north) sent out the officers with white staves (for so the way was) and a long list to invite; but he went himself to wait upon the archbishop of canterbury, sheldon; for so also the ceremony required. the archbishop received him very honorably and would not part with him at the stairshead, as usually had been done; but, telling him he was no ordinary reader, went down, and did not part till he saw him past at his outward gate i cannot much commend the extravagance of the feasting used at these readings; and that of his lordship's was so terrible an example, that i think none hath ventured since to read publicly; but the exercise is turned into a revenue, and a composition is paid into the treasury of the society. therefore one may say, as was said of cleomenes, that, in this respect, his lordship was _ultimus herorum_, the last of the heroes. and the profusion of the best provisions, and wine, was to the worst of purposes--debauchery, disorder, tumult, and waste. i will give but one instance; upon the grand day, as it was called, a banquet was provided to be set upon the table, composed of pyramids, and smaller services in form. the first pyramid was at least four feet high, with stages one above another. the conveying this up to the table, through a crowd, that were in full purpose to overturn it, was no small work: but, with the friendly assistance of the gentlemen, it was set whole upon the table. but, after it was looked upon a little, all went, hand over hand, among the rout in the hall, and for the most part was trod under foot. the entertainment the nobility had out of this was, after they had tossed away the dishes, a view of the crowd in confusion, wallowing one over another, and contending for a dirty share of it." it would, however, be unfair to the ancient exercises of 'case-putting' and 'mooting' not to bear in mind that by habituating successful barristers to take personal interest in the professional capabilities of students, they helped to maintain a salutary intercourse betwixt the younger and older members of the profession. so long as 'moots' lasted, it was the fashion with eminent counsel to accost students in westminster hall, and gossip with them about legal matters. in charles ii.'s time, such eminent barristers as sir geoffrey palmer daily gave practical hints and valuable suggestions to students who courted their favor; find accurate legal scholars, such as old 'index waller,' would, under judicious treatment, exhibit their learning to boys ambitious of following in their steps. chief justice saunders, during the days of his pre-eminence at the bar, never walked through westminster hall without a train of lads at his heels. "i have seen him," says roger north, "for hours and half-hours together, before the court sat, stand at the bar, with an audience of students over against him, putting of cases, and debating so as suited their capacities, and encouraged their industry. and so in the temple, he seldom moved without a parcel of youths hanging about him, and he merry and jesting with them." long after 'moots' had fallen into disuse, their influence in this respect was visible in the readiness of wigged veterans to extend a kindly and useful patronage to students. even so late as the close of the last century, great black-letter lawyers used to accost students in westminster hall, and give them fair words, in a manner that would be misunderstood in the present day. sergeant hill--whose reputation for recondite legal erudition, resembled that of '_index_ waller,' or maynard, in the seventeenth century--once accosted john scott, as the latter, in his student days, was crossing westminster hall. "pray, young gentleman," said the black-letter lawyer, "do you think herbage and pannage rateable to the poor's rate?" "sir," answered the future lord eldon, with a courteous bow to the lawyer, whom he knew only by sight, "i cannot presume to give any opinion, inexperienced and unlearned as i am, to a person of your great knowledge, and high character in the profession." "upon my word," replied the sergeant, eyeing the young man with unaffected delight, "you are a pretty sensible young gentleman; i don't often meet with such. if i had asked mr. burgess, a young man upon our circuit, the question, he would have told me that i was an old fool. you are an extraordinary sensible young gentleman." the period when 'readings,' 'mooting,' and 'case-putting' fell into disuse or contempt, is known with sufficient accuracy. having noticed the decay of readings, sir john bramston writes, in charles ii.'s reign, "at this tyme readings are totally in all the inns of court layd aside; and to speak truth, with great reason, for it was a step at once to the dignity of a sergeant, but not soe now." marking the time when moots became farcical forms, roger north having stated that his brother francis, when a student, was "an attendant (as well as exerciser) at the ordinary moots in the middle temple and at new inn," goes on to say, "in those days, the moots were carefully performed, and it is hard to give a good reason (bad ones are prompt enough) why they are not so now." but it should be observed, that though for all practical purposes 'moots' and 'case-puttings' ceased in charles ii.'s time, they were not formally abolished. indeed, they lingered on throughout the eighteenth century, and to the present time--when vestiges of them may still be observed in the usages and discipline of the inns. before the writer of this page was called to the bar by the masters of the society of lincoln's inn, he, like all other students of his time, had to go through the form of putting a case on certain days in the hall after dinner. the ceremony appeared to him alike ludicrous and interesting. to put his case, he was conducted by the steward of the inn to the top of the senior bar table, when the steward placed an open ms. book before him, and said, "read that, sir;" whereupon this deponent read aloud something about "a femme sole," or some such thing, and was still reading the rest of the ms., kindly opened under his nose by the steward, when that worthy officer checked him suddenly, saying, "that will do, sir; you have _put_ your case--and can sign the book." the book duly signed, this deponent bowed to the assembled barristers, and walked out of the hall, smiling as he thought how, by an ingenious fiction, he was credited with having put an elaborate case to a college of profound jurists, with having argued it before an attentive audience, and with having borne away the laurels of triumph. recently this pleasant mockery of case-putting has been swept away. in roger north's 'discourse on the study of the laws,' and 'life of the lord keeper guildford,' the reader may see with clearness the course of an industrious law-student during the latter half of the seventeenth century, and it differs less from the ordinary career of an industrious temple-student in our time, than many recent writers on the subject think. under charles ii., james ii., and william iii. the law-student was compelled to muster the barbarous law-french; but the books which he was required to read were few in comparison with those of a modern inns-of-court man. roger north mentions between twenty and thirty authors, which the student should read in addition to year-books and more recent reports; and it is clear that the man who knew with any degree of familiarity such a body of legal literature was a very erudite lawyer two hundred years since. but the student was advised to read this small library again and again, "common-placing" the contents of its volumes, and also "common-placing" all new legal facts. the utility and convenience of common-place books were more apparent two centuries since, than in our time, when books of reference are always published with good tables of contents and alphabetical indexes. roger north held that no man could become a good lawyer who did not keep a common-place book. he instructs the student to buy for a common-place register "a good large paper book, as big as a church bible;" he instructs him how to classify the facts which should be entered in the work; and for a model of a lucid and thoroughly lawyer-like common-place book he refers "to lincoln's inn library, where the lord hale's common-place book is conserved, and that may be a pattern, _instar omnium_." chapter xxxviii. pupils in chambers. but the most important part of an industrious law-student's labors in olden time, was the work of watching the practice of westminster hall. in the seventeenth century, the constant succession of political trials made the king's bench court especially attractive to students who were more eager for gossip than advancement of learning; but it was always held that the student, who was desirous to learn the law rather than to catch exciting news or hear exciting speeches, ought to frequent the common pleas, in which court the common law was said to be at home. at the common pleas, a student might find a seat vacant in the students' benches so late as ten o'clock; but it was not unusual for every place devoted to the accommodation of students in the court of king's bench, to be occupied by six o'clock, a.m. by dawn, and even before the sun had begun to break, students bent on getting good seats at the hearing of an important cause would assemble, and patiently wait in court till the judges made their appearance. one prominent feature in the advocate's education must always be elocutionary practice. "talk; if you can, to the point, but anyhow talk," has been the motto of advocacy from time immemorial. heneage finch, who, like every member of his silver-tongued family, was an authority on matters pertaining to eloquence, is said to have advised a young student "to study all the morning and talk all the afternoon." sergeant maynard used to express his opinion of the importance of eloquence to a lawyer by calling law the "ars bablativa." roger north observes--"he whose trade is speaking must not, whatever comes out, fail to speak, for that is a fault in the main much worse than impertinence." and at a recent address to the students of the london university, lord brougham urged those of his auditors, who intended to adopt the profession of the bar, to habituate themselves to talk about everything. in past times law-students were proverbial for their talkativeness; and though the present writer has never seen any records of a carolinian law-debating society, it is matter of certainty that in the seventeenth century the young students and barristers formed themselves into coteries, or clubs, for the practice of elocution and for legal discussions. the continual debates on 'mootable days,' and the incessant wranglings of the temple cloisters, encouraged them to pay especial attention to such exercises. in charles ii.'s reign pool's company, was a coterie of students and young barristers, who used to meet periodically for congenial conversation and debate. "there is seldom a time," says roger north, speaking of this coterie, "but in every inn of court there is a studious, sober company that are select to each other, and keep company at meals and refreshments. such a company did mr. pool find out, whereof sergeant wild was one, and every one of them proved eminent, and most of them are now preferred in the law; and mr. pool, at the latter end of his life, took such a pride in his company that he affected to furnish his chambers with their pictures." amongst the benefits to be derived from such a club as that of which mr. pool was president, roger north mentions "aptness to speak;" adding: "for a man may be possessed of a book-case, and think he has it _ad unguem_ throughout, and when he offers at it shall find himself at a loss, and his words will not be right and proper, or perhaps too many, and his expressions confused: _when he has once talked his case over, and, his company have tossed it a little to and fro, then he shall utter it more readily, with fewer words and much more force_." these words make it clear that mr. pool's 'company' was a select 'law-debating society.' far smaller as to number of members, something more festive in its arrangements, but not less bent on furthering the professional progress of its members, it was, some two hundred years since, all that the 'hardwicke' and other similar associations are at the present.[ ] to such fraternities--of which the inns of court had several in the last century--murray and thurlow, law and erskine had recourse: and besides attending strictly professional clubs, it was usual for the students, of their respective times, to practise elocution at the coffee-houses and public spouting-rooms of the town. murray used to argue as well as 'drink champagne' with the wits; thurlow was the irrepressible talker of nando's; erskine used to carry his scarlet uniform from lincoln's inn hall, to the smoke-laden atmosphere of coachmakers' hall, at which memorable 'discussion forum' edward law is known to have spoken in the presence of a closely packed assembly of politicians, idlers upon town, shop-men, and drunkards. thither also horne tooke and dunning used to adjourn after dining with taffy kenyon at the chancery lane eating-house, where the three friends were wont to stay their hunger for sevenpence halfpenny each. "dunning and myself," horne tooke said boastfully, when he recalled these economical repasts, "were generous, for we gave the girl who waited on us a penny apiece; but kenyon, who always knew the value of money, rewarded her with a halfpenny, and sometimes with a _promise_." notwithstanding the recent revival of lectures and the institution of examinations, the actual course of the law-student has changed little since the author of the 'pleader's guide,' in , described the career of john surrebutter, esq., special pleader and barrister-at-law. the labors of 'pupils in chambers, are thus noticed by mr. surrebutter:-- "and, better to improve your taste, are by your parents' fondness plac'd amongst the blest, the chosen few (blest, if their happiness they knew), who for three hundred guineas paid to some great master of the trade, have at his rooms by _special_ favor his leave to use their best endeavor, by drawing pleas from nine till four, to earn him twice three hundred more; and after dinner may repair to 'foresaid rooms, and then and there have 'foresaid leave from five till ten, to draw th' aforesaid pleas again." continuing to describe his professional career, mr. surrebutter mentions certain facts which show that so late as the close of last century professional etiquette did not forbid special pleaders and barristers to curry favor with solicitors and solicitors' clerks by attentions which would now-a-days be deemed reprehensible. he says:-- "whoe'er has drawn a special plea has heard of old tom tewkesbury, deaf as a post, and thick as mustard, he aim'd at wit, and bawl'd and bluster'd and died a nisi prius leader-- that genius was my special pleader-- that great man's office i attended, by hawk and buzzard recommended attorneys both of wondrous skill, to pluck the goose and drive the quill. three years i sat his smoky room in, pens, paper, ink, and pounce consuming; the fourth, when epsom day begun, joyful i hailed th' auspicious sun, bade tewkesbury and clerk adieu; (purification, eighty-two) of both i wash'd my hands; and though with nothing for my cash to show, but precedents so scrawl'd and blurr'd, i scarce could read a single word, nor in my books of common-place one feature, of the law could trace, save buzzard's nose and visage thin, and hawk's deficiency of chin, which i while lolling at my ease was wont to draw instead of pleas. my chambers i equipt complete, made friends, hired books, and gave to eat; if haply to regale my friends on, my mother sent a haunch of ven'son, i most respectfully entreated the choicest company to eat it; _to wit_, old buzzard, hawk, and crow; _item_, tom thornback, shark, and co. attorneys all as keen and staunch as e'er devoured a client's haunch. and did i not their clerks invite to taste said ven'son hash'd at night? for well i knew that hopeful fry my rising merit would descry, the same litigious course pursue, and when to fish of prey they grew, by love of food and contest led, would haunt the spot where once they fed. thus having with due circumspection formed my professional connexion, my desks with precedents i strew'd, turned critic, danc'd, or penn'd an ode, suited the _ton_, became a free and easy man of gallantry; but if while capering at my glass, or toying with a favorite lass, i heard the aforesaid hawk a-coming, or buzzard on the staircase humming, at once the fair angelic maid into my coal-hole i convey'd; at once with serious look profound, mine eyes commencing with the ground, i seem'd like one estranged to sleep, 'and fixed in cogitation deep,' sat motionless, and in my hand i held my 'doctrina placitandi,' and though i never read a page in't, thanks to that shrewd, well-judging agent, my sister's husband, mr. shark, soon got six pupils and a clerk. five pupils were my stint, the other i took to compliment his mother." having fleeced pupils, and worked as a special pleader for a time, mr. surrebutter is called to the bar; after which ceremony his action towards 'the inferior branch' of the profession is not more dignified than it was whilst he practised as a special pleader. it appears that in mr. surrebutter's time (_circa_ ) it was usual for a student to spend three whole years in the same pleader's chambers, paying three hundred guineas for the course of study. not many years passed before students saw it was not to their advantage to spend so long a period with the same instructor, and by the end of the century the industrious student who could command the fees wherewith to pay for such special tuition, usually spent a year or two in a pleader's chambers, and another year or two in the chambers of an equity draughtsman, or conveyancer. lord campbell, at the opening of the present century, spent three years in the chambers of the eminent special pleader, mr. tidd, of whose learning and generosity the biographer of the chancellors makes cordial and grateful acknowledgment. finding that campbell could not afford to pay a second hundred guineas for a second year's instruction, tidd not only offered him the run of his chambers without payment, but made the young scotchman take back the £ which he had paid for the first twelve months. in his later years lord campbell delighted to trace his legal pedigree to the great pleader and 'pupillizer' of the last century, tom warren. the chart ran thus: "tom warren had for pupil sergeant runnington, who instructed in the mysteries of special pleading the learned tidd, who was the teacher of john campbell." with honest pride and pleasant vanity the literary chancellor maintained that he had given the genealogical tree another generation of forensic honor, as solicitor general dundas and vaughan williams, of the common pleas bench, were his pupils. though campbell speaks of _tom warren_ as "the greater founder of the special pleading race," and maintains that "the voluntary discipline of the special pleader's office" was unknown before the middle of the last century, it is certain that the voluntary discipline of a legal instructor's office or chambers was an affair of frequent occurrence long before warren's rise. roger north, in his 'discourse on the study of the laws,' makes no allusion to any such voluntary discipline as an ordinary feature of a law-student's career; but in his 'life of lord keeper guildford' he expressly informs us that he was a pupil in his brother's chambers. "his lordship," writes the biographer, "having taken that advanced post, and designing to benefit a relation (the honorable roger north), who was a student in the law, and kept him company, caused his clerk to put into his hands all his draughts, such as he himself had corrected, and after which conveyances had been engrossed, that, by a perusal of them, he might get some light into the formal skill of conveyancing. and that young gentleman instantly went to work, and first numbered the draughts, and then made an index of all the clauses, referring to that number and folio; so that, in this strict perusal and digestion of the various matters, he acquired, not only a formal style, but also apt precedents, and a competent notion of instruments of all kinds. and to this great condescension was owing that little progress he made, which afterwards served to prepare some matters for his lordship's own perusal and settlement." here then is a case of a pupil in a barrister's chambers in charles ii.'s reign; and it is a case that suffers nothing from the fact that the teacher took no fee. in like manner, john trevor (subsequently master of the rolls and speaker of the commons) about the same time was "bred a sort of clerk in old arthur trevor's chamber, an eminent and worthy professor of the law in the inner temple." on being asked what might be the name of the boy with such a hideous squint who sate at a clerk's desk in the outer room, arthur trevor answered, "a kinsman of mine that i have allowed to sit here, to learn the knavish part of the law." it must be observed that john trevor was not a clerk, but merely a "sort of a clerk" in his kinsman's chamber. in the latter half of the seventeenth century, and in the earlier half of the eighteenth century, students who wished to learn the practice of the law usually entered the offices of attorneys in large practice. at that period, the division between the two branches of the profession was much less wide than it subsequently became; and no rule or maxim of professional etiquette forbade inns-of-court men to act as the subordinates of attorneys and solicitors. thus philip yorke (lord hardwicke) in queen anne's reign acted as clerk in the office of mr. salkeld, an attorney residing in brook street, holborn, whilst he kept his terms at the temple; and nearly fifty years later, ned thurlow (lord thurlow), on leaving cambridge, and taking up his residence in the temple, became a pupil in the office of mr. chapman, a solicitor, whose place of business was in lincoln's inn. there is no doubt that it was customary for young men destined the bar thus to work in attorneys' offices; and they continued to do so without any sense of humiliation or thought of condescension, until the special pleaders superseded the attorneys as instructors. [ ] the mention of 'the hardwicke' brings a droll story to the writer's mind. some few years since the members of that learned fraternity assembled at their customary plate of meeting--a large room in anderton's hotel, fleet street--to discuss a knotty point of law about anent uses. the master of young men was strong; and amongst them--conspicuous for his advanced years, jovial visage, red nose, and air of perplexity--sate an old gentleman who was evidently a stranger to every lawyer present. who was he? who brought him? was there any one in the room who knew him? such were the whispers that floated about, concerning the portly old man, arrayed in blue coat and drab breeches and gaiters, who took his snuff in silence, and watched the proceedings with evident surprise and dissatisfaction. after listening to three speeches this antique, jolly stranger rose, and with much embarrassment addressed the chair. "mr. president," he said--"excuse me; but may i ask,--is this 'the convivial rabbits?'" a roar of laughter followed this enquiry from a 'convivial rabbit,' who having mistaken the evening of the week, had wandered into the room in which his convivial fellow-clubsters had held a meeting on the previous evening. on receiving the president's assurance that the learned members of a law-debating society were not 'convivial rabbits,' the elderly stranger buttoned his blue coat and beat a speedy retreat. part viii. mirth. chapter xxxix. wit of lawyers. no lawyer has given better witticisms to the jest-books than sir thomas more. like all legal wits, he enjoyed a pun, as sir thomas manners, the mushroom earl of rutland discovered, when he winced under the cutting reproof of his insolence, conveyed in the translation of 'honores mutant mores'--_honors change manners_. but though he would condescend to play with words as a child plays with shells on a sea-beach, he could at will command the laughter of his readers without having recourse to mere verbal antics. he delighted in what may be termed humorous mystification. entering bruges at a time when his leaving had gained european notoriety, he was met by the challenge of a noisy fellow who proclaimed himself ready to dispute with the whole world--or any other man--"in omni scibili et de quolibet ente." accepting the invitation, and entering the lists in the presence of all the scholastic magnates of bruges, more gravely inquired, "an averia carucæ capta in vetitonamio sint irreplegibilia?" not versed in the principles and terminology of the common law of england, the challenger could only stammer and blush--whilst more's eye twinkled maliciously, and his auditors were convulsed with laughter. much of his humor was of the sort that is ordinarily called _quiet_ humor, because its effect does not pass off in shouts of merriment. of this kind of pleasantry he gave the lieutenant of the tower a specimen, when he said, with as much courtesy as irony, "assure yourself i do not dislike my cheer; but whenever i do, then spare not to thrust me out of your doors!" of the same sort were the pleasantries with which, on the morning of his execution, he with fine consideration for others strove to divert attention from the cruelty of his doom. "i see no danger," he observed, with a smile, to his friend sir thomas pope, shaking his water-bottle as he spoke, "but that this man may live longer if it please the king." finding in the craziness of the scaffold a good pretext for leaning in friendly fashion on his gaoler's arm, he extended his hand to sir william kingston, saying, "master lieutenant, i pray you see me safe up; for my coming down let me shift for myself." even to the headsman he gave a gentle pleasantry and a smile from the block itself, as he put aside his beard so that the keen blade should not touch it. "wait, my good friend, till i have removed my beard," he said, turning his eyes upwards to the official, "for it has never offended his highness." his wit was not less ready than brilliant, and on one occasion its readiness saved him from a sudden and horrible death. sitting on the roof of his high gate-house at chelsea, he was enjoying the beauties of the thames and the sunny richness of the landscape, when his solitude was broken by the unlooked-for arrival of a wandering maniac. wearing the horn and badge of a bedlamite, the unfortunate creature showed the signs of his malady in his equipment as well as his countenance. having cast his eye downwards from the parapet to the foot of the tower, he conceived a mad desire to hurl the chancellor from the flat roof. "leap, tom! leap!" screamed the athletic fellow, laying a firm hand on more's shoulder. fixing his attention with a steady look, more said, coolly, "let us first throw my little dog down, and see what sport that will be." in a trice the dog was thrown into the air. "good!" said more, feigning delight at the experiment: "now run down, fetch the dog, and we'll throw him off again." obeying the command, the dangerous intruder left more free to secure himself by a bar, and to summon assistance with his voice. for a good end this wise and mirth-loving lawyer would play the part of a practical joker; and it is recorded that by a jest of the practical sort he gave a wholesome lesson to an old civic magistrate, who, at the sessions of the old bailey, was continually telling the victims of cut-purses that they had only themselves to thank for their losses--that purses would never be cut if their wearers took proper care to retain them in their possession. these orations always terminated with, "i never lose _my_ purse; cut-purses never take _my_ purse; no, i'faith, because i take proper care of it." to teach his worship wisdom, and cure him of his self-sufficiency, more engaged a cut-purse to relieve the magistrate of his money-bag whilst he sat upon the bench. a story is recorded of another old bailey judge who became the victim of a thief under very ridiculous circumstances. whilst he was presiding at the trial of a thief in the old bailey, sir john sylvester, recorder of london, said incidentally that he had left his watch at home. the trial ended in an acquittal, the prisoner had no sooner gained his liberty than he hastened to the recorder's house, and sent in word to lady sylvester that he was a constable and had been sent from the old bailey to fetch her husband's watch. when the recorder returned home and found he had lost his watch, it is to be feared that lady sylvester lost her usual equanimity. _apropos_ of these stories lord campbell tells--how, at the opening period of his professional career, soon after the publication of his 'nisi prius reports,' he on circuit successfully defended a prisoner charged with a criminal offence; and how, whilst the success of his advocacy was still quickening his pulses, he discovered that his late client, with whom he held a confidential conversation, had contrived to relieve him of his pocket-book, full of bank-notes. as soon as the presiding judge, lord chief baron macdonald, heard of the mishap of the reporting barrister, he exclaimed, "what! does mr. campbell think that no one is entitled to _take notes_ in court except himself?" by the urbane placidity which marked the utterance of his happiest speeches, sir nicholas bacon often recalled to his hearers the courteous easiness of more's _repartees_. keeping his own pace in society, as well as in the court of chancery, neither satire nor importunity could ruffle or confuse him. when elizabeth, looking disdainfully at his modest country mansion, told him that the place was too small, he answered with the flattery of gratitude, "not so, madam, your highness has made me too great for my house." leicester having suddenly asked him his opinion of two aspirants for court favor, he responded on the spur of the moment, "by my troth, my lord, the one is a grave councillor: the other is a proper young man, and so he will be as long as he lives." to the queen, who pressed him for his sentiments respecting the effect of monopolies--a delicate question for a subject to speak his mind upon--he answered, with conciliatory lightness, "madam, will you have me speak the truth? _licentiâ_ omnes deteriores sumus." in court he used to say, "let us stay a little, that we may have done the sooner." but notwithstanding his deliberation and the stutter that hindered his utterances, he could be quicker than the quickest, and sharper than the most acrid, as the loquacious barrister discovered who was suddenly checked in a course of pert talkativeness by this tart remark from the stammering lord keeper: "there is a difference between you and me,--for me it is a pain to s-speak, for you a pain to hold your tongue." that the familiar story of his fatal attack of cold is altogether true one cannot well believe, for it seems highly improbable that the lord keeper, in his seventieth year, would have sat down to be shaved near an open window in the month of february. but though the anecdote may not be historically exact, it may be accepted as a faithful portraiture of his more stately and severely courteous humor. "why did you suffer me to sleep thus exposed?" asked the lord keeper, waking in a fit of shivering from slumber into which his servant had allowed him to drop, as he sat to be shaved in a place where there was a sharp current of air. "sir, i durst not disturb you," answered the punctilious valet, with a lowly obeisance. having eyed him for a few seconds, sir nicholas rose and said, "by your civility i lose my life." whereupon the lord keeper retired to the bed from which he never rose. amongst elizabethan judges who aimed at sprightliness on the bench, hatton merits a place; but there is reason to think that the idlers, who crowded his court to admire the foppishness of his judicial costume, did not get one really good _mot_ from his lips to every ten bright sayings that came from the clever barristers practising before him. one of the best things attributed to him is a pun. in a case concerning the limits of certain land, the counsel on one side having remarked with explanatory emphasis, "we lie on this side, my lord;" and the counsel on the other side having interposed with equal vehemence, "we lie on this side, my lord,"--the lord chancellor leaned backwards, and dryly observed, "if you lie on both sides, whom am i to believe?" in elizabethan england the pun was as great a power in the jocularity of the law-courts as it is at present; the few surviving witticisms that are supposed to exemplify egerton's lighter mood on the bench, being for the most part feeble attempts at punning. for instance, when he was asked, during his tenure of the mastership of the rolls, to _commit_ a cause, _i.e._, to refer it to a master in chancery, he used to answer, "what has the cause done that it should be committed?" it is also recorded of him that, when he was asked for his signature to a petition of which he disapproved, he would tear it in pieces with both hands, saying, "you want my hand to this? you shall have it; aye, and both my hands, too." of egerton's student days a story is extant, which has merits, independent of its truth or want of truth. the hostess of a smithfield tavern had received a sum of money from three graziers, in trust for them, and on engagement to restore it to them on their joint demand. soon after this transfer, one of the co-depositors, fraudulently representing himself to be acting as the agent of the other two, induced the old lady to give him possession of the whole of the money--and thereupon absconded. forthwith the other two depositors brought an action against the landlady, and were on the point of gaining a decision in their favor, when young egerton, who had been taking notes of the trial, rose as _amicus curiæ_, and argued, "this money, by the contract, was to be returned to _three_, but _two_ only sue;--where is the _third_? let him appear with the others; till then the money cannot be demanded from her." nonsuit for the plaintiffs--for the young student a hum of commendation. many of the pungent sayings current in westminster hall at the present time, and attributed to eminent advocates who either are still upon the forensic stage, or have recently withdrawn from it, were common jests amongst the lawyers of the seventeenth century. what law-student now eating dinners at the temple has not heard the story of sergeant wilkins, who, on drinking a pot of stout in the middle of the day, explained that, as he was about to appear in court, he thought it right to fuddle his brain down to the intellectual standard of a british jury. this merry thought, two hundred and fifty years since, was currently attributed to sir john millicent, of cambridgeshire, of whom it is recorded--"being asked how he did conforme himselfe to the grave justices his brothers, when they met, 'why, in faithe,' sayes he, 'i have no way but to drinke myself downe to the capacitie of the bench.'" another witticism, currently attributed to various recent celebrities, but usually fathered upon richard brinsley sheridan--on whose reputation have been heaped the brilliant _mots_ of many a speaker whom he never heard, and the indiscretions of many a sinner whom he never knew--is certainly as old as shaftesbury's bright and unprincipled career. when charles ii. exclaimed, "shaftesbury, you are the most profligate man in my dominions," the reckless chancellor answered, "of a subject, sir, i believe i am." it is likely enough that shaftesbury merely repeated the witticism of a previous courtier; but it is certain that sheridan was not the first to strike out the pun. in this place let a contradiction be given to a baseless story, which exalts sir william follett's reputation for intellectual readiness and argumentative ability. the story runs, that early in the january of , whilst george stephenson, dean buckland, and sir william follett were sir robert peel's guests at drayton manor, dean buckland vanquished the engineer in a discussion on a geological question. the next morning, george stephenson was walking in the gardens of drayton manor before breakfast, when sir william follett accosted him, and sitting down in an arbor asked for the facts of the argument. having quickly 'picked up the case,' the lawyer joined sir robert peel's guests at breakfast, and amused them by leading the dean back to the dispute of the previous day, and overthrowing his fallacies by a skilful use of the same arguments which the self-taught engineer had employed with such ill effect. "what do you say, mr. stephenson?" asked sir robert peel, enjoying the dean's discomfiture. "why," returned george stephenson, "i only say this, that of all the powers above and under earth, there seems to me no power so great as the gift of the gab." this is the story. but there are facts which contradict it. the only visit paid by george stephenson to drayton manor was made in the december of , not the january of . the guests (invited for dec. , ), were lord talbot, lord aylesford, the bishop of lichfield, dr. buckland, dr. lyon playfair, professor owen, george stephenson, mr. smith of deanston, and professor wheatstone. sir william follett was not of the party, and did not set foot within drayton manor during george stephenson's visit there. of this, professor wheatstone (who furnished the present writer with these particulars), is certain. moreover, it is not to be believed that sir william follett, an overworked invalid (who died in the june of of the pulmonary disease under which he had suffered for years), would sit in an arbor before breakfast on a winter's morning to hold debate with a companion on any subject. the story is a revival of an anecdote first told long before george stephenson was born. in lists of legal _facetiæ_ the habit of punning is not more noticeable than the prevalent unamiability of the jests. advocates are intellectual gladiators, using their tongues as soldiers of fortune use their swords; and when they speak, it is to vanquish an adversary. antagonism is an unavoidable condition of their existence; and this incessant warfare gives a merciless asperity to their language, even when it does not infuse their hearts with bitterness. duty enjoins the barrister to leave no word unsaid that can help his client, and encourages him to perplex by satire, baffle by ridicule, or silence by sarcasm, all who may oppose him with statements that cannot be disproved, or arguments that cannot be upset by reason. that which duty bids him do, practice enables him to do with terrible precision and completeness; and in many a case the caustic tone, assumed at the outset as a professional weapon, becomes habitual, and, without the speaker's knowledge, gives more pain within his home than in westminster hall. some of the well-known witticisms attributed to great lawyers are so brutally personal and malignant, that no man possessing any respect for human nature can read them without endeavoring to regard them as mere biographic fabrications. it is recorded of charles yorke that, after his election to serve as member for the university of cambridge, he, in accordance with etiquette, made a round of calls on members of senate, giving them personal thanks for their votes; and that on coming to the presence of a supporter--an old 'fellow' known as the ugliest man in cambridge--he addressed him thus, after smiling 'an aside' to a knot of bystanders--"sir, i have reason to be thankful to my friends in general; but i confess myself under particular obligation to you for the very _remarkable countenance_ you have shown me on this occasion." there is no doubt that charles yorke could make himself unendurably offensive; it is just credible that without a thought of their double meaning he uttered the words attributed to him; but it is not to be believed that he--an english gentleman--thus intentionally insulted a man who had rendered him a service. a story far less offensive than the preceding anecdote, but in one point similar to it, is told of judge fortescue-aland (subsequently lord fortescue), and a counsel. sir john fortescue-aland was disfigured by a nose which was purple, and hideously misshapen by morbid growth. having checked a ready counsel with the needlessly harsh observation, "brother, brother, you are handling the case in a very lame manner," the angry advocate gave vent to his annoyance by saying, with a perfect appearance of _sang-froid_, "pardon me, my lord; have patience with me, and i will do my best to make the case as plain as--as--the nose on your lordship's face." in this case the personality was uttered in hot blood, by a man who deemed himself to be striking the enemy of his professional reputation. if they were not supported by incontrovertible testimony, the admirers of the great sir edward coke would reject as spurious many of the overbearing rejoinders which escaped his lips in courts of justice. his tone in his memorable altercation with bacon at the bar of the court of exchequer speaks ill for the courtesy of english advocates in elizabeth's reign; and to any student who can appreciate the dignified formality and punctilious politeness that characterized english gentlemen in the old time, it is matter of perplexity how a man of coke's learning, capacity, and standing, could have marked his contempt for 'cowells interpreter,' by designating the author in open court dr. cowheel. scarcely in better taste were the coarse personalities with which, as attorney general, he deluged garnet the jesuit, whom he described as "a doctor of jesuits; that is, a doctor of six d's--as dissimulation, deposing of princes, disposing of kingdoms, daunting and deterring of subjects, and destruction." in comparatively recent times few judges surpassed thurlow in overbearing insolence to the bar. to a few favorites, such as john scott and kenyon, he could be consistently indulgent, although even to them his patronage was often disagreeably contemptuous; but to those who provoked his displeasure by a perfectly independent and fearless bearing he was a malignant persecutor. for instance, in his animosity to richard pepper arden (lord alvanley), he often forgot his duty as a judge and his manners as a gentleman. john scott, on one occasion, rising in the court of chancery to address the court after arden, who was his leader in the cause, and had made an unusually able speech, lord thurlow had the indecency to say, "mr. scott, i am glad to find that you are engaged in the cause, for i now stand some chance of knowing something about the matter." to the chancellor's habitual incivility and insolence it is allowed that arden always responded with dignity and self-command, humiliating his powerful and ungenerous adversary by invariable good-breeding. once, through inadvertence, he showed disrespect to the surly chancellor, and then he instantly gave utterance to a cordial apology, which thurlow was not generous enough to accept with appropriate courtesy. in the excitement of professional altercation with counsel respecting the ages of certain persons concerned in a suit, he committed the indecorum of saying aloud, "i'll lay you a bottle of wine." ever on the alert to catch his enemy tripping, thurlow's eye brightened as his ear caught the careless words; and in another instant he assumed a look of indignant disgust. but before the irate judge could speak, arden exclaimed, "my lord, i beg your lordship's pardon; i really forgot where i was." had thurlow bowed a grave acceptance of the apology, arden would have suffered somewhat from the misadventure; but unable to keep his abusive tongue quiet, the 'great bear' growled out, in allusion to the offender's welsh judgeship, "you thought you were in your own court, i presume." more laughable, but not more courteous, was the same chancellor's speech to a solicitor who had made a series of statements in a vain endeavor to convince his lordship of a certain person's death. "really, my lord," at last the solicitor exclaimed, goaded into a fury by thurlow's repeated ejaculations of "that's no proof of the man's death;" "really, my lord, it is very hard, and it is not right that you won't believe me. i saw the man dead in his coffin. my lord, i tell you he was my client, and he is dead." "no wonder," retorted thurlow, with a grunt and a sneer, "_since he was your client_. why did you not tell me that sooner? it would kill me to have such a fellow as you for my attorney." that this great lawyer could thus address a respectable gentleman is less astonishing when it is remembered, that he once horrified a party of aristocratic visitors at a country-house by replying to a lady who pressed him to take some grapes, "grapes, madam, grapes! did not i say a minute ago that i had the _gripes_!" once this ungentle lawyer was fairly worsted in a verbal conflict by an irish pavier. on crossing the threshold of his ormond street house one morning, the chancellor was incensed at seeing a load of paving-stones placed before his door. singling out the tallest of a score of irish workmen who were repairing the thoroughfare, he poured upon him one of those torrents of curses with which his most insolent speeches were usually preluded, and then told the man to move the stones away instantly. "where shall i take them to, your honor?" the pavier inquired. from the chancellor another volley of blasphemous abuse, ending with, "you lousy scoundrel, take them to hell!--do you hear me?" "have a care, your honor," answered the workman, with quiet drollery, "don't you think now that if i took 'em to the other place your honor would be less likely to fall over them?" thurlow's incivility to the solicitor reminds us of the cruel answer given by another great lawyer to a country attorney, who, through fussy anxiety for a client's interests, committed a grave breach of professional etiquette. let this attorney be called mr. smith, and let it be known that mr. smith, having come up to london from a secluded district of a remote country, was present at a consultation of counsellors learned in the law upon his client's cause. at this interview, the leading counsel in the cause, the attorney general of the time, was present and delivered his final opinion with characteristic clearness and precision. the consultation over, the country attorney retreated to the hummums hotel, covent garden, and, instead of sleeping over the statements made at the conference, passed a wretched and wakeful night, harassed by distressing fears, and agitated by a conviction that the attorney general had overlooked the most important point of the case. early next day, mr. smith, without appointment, was at the great counsellor's chambers, and by vehement importunity, as well as a liberal donation to the clerk, succeeded in forcing his way to the advocate's presence. "well, mis-ter smith," observed the attorney general to his visitor, turning away from one of his devilling juniors, who chanced to be closeted with him at the moment of the intrusion, "what may you want to say? be quick, for i am pressed for time." notwithstanding the urgency of his engagements, he spoke with a slowness which, no less than the suspicious rattle of his voice, indicated the fervor of displeasure. "sir causticus witherett, i trust you will excuse my troubling you; but, sir, after our yesterday's interview, i went to my hotel, the hummums, in covent garden, and have spent the evening and all night turning over my client's case in my mind, and the more i turn the matter over in my mind, the more reason i see to fear that you have not given one point due consideration." a pause, during which sir causticus steadily eyed his visitor, who began to feel strangely embarrassed under the searching scrutiny: and then--"state the point, mis-ter smith, but be brief." having heard the point stated, sir causticus witherett inquired, "is that all you wish to say?" "all, sir--all," replied mr. smith; adding nervously, "and i trust you will excuse me for troubling you about the matter; but, sir, i could not sleep a wink last night; all through the night i was turning this matter over in my mind." a glimpse of silence. sir causticus rose and standing over his victim made his final speech--"mis-ter smith, if you take my advice, given with sincere commiseration for your state, you will without delay return to the tranquil village in which you habitually reside. in the quietude of your accustomed scenes you will have leisure to _turn this matter over in what you are pleased to call your mind_. and i am willing to hope that _your mind_ will recover its usual serenity. mr. smith, i wish you a very good morning." legal biography abounds with ghastly stories that illustrate the insensibility with which the hanging judges in past generations used to don the black cap jauntily, and smile at the wretched beings whom they sentenced to death. perhaps of all such anecdotes the most thoroughly sickening is that which describes the conduct of jeffreys, when, as recorder of london, he passed sentence of death on his old and familiar friend, richard langhorn, the catholic barrister--one of the victims of the popish plot phrensy. it is recorded that jeffreys, not content with consigning his friend to a traitor's doom, malignantly reminded him of their former intercourse, and with devilish ridicule admonished him to prepare his soul for the next world. the authority which gives us this story adds, that by thus insulting a wretched gentleman and personal associate, jeffreys, instead of rousing the disgust of his auditors, elicited their enthusiastic applause. in a note to a passage in one of the waverley novels, scott tells a story of an old scotch judge, who, as an enthusiastic chess-player, was much mortified by the success of an ancient friend, who invariably beat him when they tried their powers at the beloved game. after a time the humiliated chess-player had his day of triumph. his conqueror happened to commit murder, and it became the judge's not altogether painful duty to pass upon him the sentence of the law. having in due form and with suitable solemnity commended his soul to the divine mercy, he, after a brief pause, assumed his ordinary colloquial tone of voice, and nodding humorously to his old friend, observed--"and noo, jammie, i think ye'll alloo that i hae checkmated you for ance." of all the bloodthirsty wearers of the ermine, no one, since the opening of the eighteenth century, has fared worse than sir francis page--the virulence of whose tongue and the cruelty of whose nature were marks for successive satirists. in one of his imitations of horace, pope says-- "slanderer, poison dread from delia's rage, hard words or hanging, if your judge be page." in the same spirit the poet penned the lines of the 'dunciad'-- "mortality, by her false guardians drawn, chicane in furs, and casuistry in lawn, gasps, as they straighten at each end the cord, and dies, when dulness gives her----the sword." powerless to feign insensibility to the blow, sir francis openly fitted this _black_ cap to his dishonored head by sending his clerk to expostulate with the poet. the ill-chosen ambassador performed his mission by showing that, in sir francis's opinion, the whole passage would be sheer nonsense, unless 'page' were inserted in the vacant place. johnson and savage took vengeance on the judge for the judicial misconduct which branded the latter poet a murderer; and fielding, in 'tom jones,' illustrating by a current story the offensive levity of the judge's demeanor at capital trials, makes him thus retort on a horse-stealer: "ay! thou art a lucky fellow; i have traveled the circuit these forty years, and never found a horse in my life; but i'll tell thee what, friend, thou wast more lucky than thou didst know of; for thou didst not only find a horse, but a halter too, i promise thee." this scandal to his professional order was permitted to insult the humane sentiments of the nation for a long period. born in , he died in , whilst he was still occupying a judicial place; and it is said of him, that in his last year he pointed the ignominious story of his existence by a speech that soon ran the round of the courts. in answer to an inquiry for his health, the octogenarian judge observed, "my dear sir--you see how it fares with me; i just manage to keep _hanging on, hanging on_." this story is ordinarily told as though the old man did not see the unfavorable significance of his words; but it is probable that, he uttered them wittingly and with, a sneer--in the cynicism and shamelessness of old age. a man of finer stuff and of various merits, but still famous as a 'hanging judge,' was sir francis buller, who also made himself odious to the gentler sex by maintaining that husbands might flog their wives, if the chastisement were administered with a stick not thicker than the operator's thumb. but the severity to criminals, which gave him a place amongst hanging judges, was not a consequence of natural cruelty. inability to devise a satisfactory system of secondary punishments, and a genuine conviction that ninety-nine out of every hundred culprits were incorrigible, caused him to maintain that the gallows-tree was the most efficacious as well as the cheapest instrument that could be invented for protecting society against malefactors. another of his stern _dicta_ was, that previous good character was a reason for increasing rather than a reason for lessening a culprit's punishment; "for," he argued, "the longer a prisoner has enjoyed the good opinion of the world, the less are the excuses for his misdeeds, and the more injurious is his conduct to public morality." in contrast to these odious stories of hanging judges are some anecdotes of great men, who abhorred the atrocities of our penal system, long before the worst of them were swept away by reform. lord mansfield has never been credited with lively sensibilities, but his humanity was so shocked by the bare thought of killing a man for committing a trifling theft, that he on one occasion ordered a jury to find that a stolen trinket was of less value than forty shillings--in order that the thief might escape the capital sentence. the prosecutor, a dealer in jewelry, was so mortified by the judge's leniency, that he exclaimed, "what, my lord, my golden trinket not worth forty shillings? why, the fashion alone cost me twice the money!" removing his glance from the vindictive tradesman, lord mansfield turned towards the jury, and said, with solemn gravity, "as we stand in need of god's mercy, gentlemen, let us not hang a man for fashion's sake." tenderness of heart was even less notable in kenyon than in murray; but lord mansfield's successor was at least on one occasion stirred by apathetic consequence of the bloody law against persons found guilty of trivial theft. on the home circuit, having passed sentence of death on a poor woman who had stolen property to the value of forty shillings in a dwelling-house, lord kenyon saw the prisoner drop lifeless in the dock, just as he ceased to speak. instantly the chief justice sprang to his feet, and screamed in a shrill tone, "i don't mean to hang you--do you hear!--don't you hear?--good----will nobody tell her that i don't mean to hang her?" one of the humorous aspects of a repulsive subject is seen in the curiosity and fastidiousness of prisoners on trial for capital offences with regard to the professional _status_ of the judges who try them. a sheep-stealer of the old bloody days liked that sentence should be passed upon him by a chief justice; and in our own time murderers awaiting execution, sometimes grumble at the unfairness of their trials, because they have been tried by judges of inferior degree. lord campbell mentions the case of a sergeant, who, whilst acting as chief justice abbott's deputy, on the oxford circuit, was reminded that he was 'merely a temporary' by the prisoner in the dock. being asked in the usual way if he had aught to say why sentence of death should not be passed upon him, the prisoner answered--"_yes; i have been tried before a journeyman judge._" chapter xl. humorous stories. alike commendable for its subtlety and inoffensive humor was the pleasantry with which young philip yorke (afterwards lord hardwicke), answered sir lyttleton powys's banter on the western circuit. an amiable and upright, but far from brilliant judge, sir lyttleton had a few pet phrases---amongst them, "i humbly conceive," and "look, do you see"--which he sprinkled over his judgments and colloquial talk with ridiculous profuseness. surprised at yorke's sudden rise into lucrative practice, this most gentlemanlike worthy was pleased to account for the unusual success by maintaining that young mr. yorke must have written a law-book, which had brought him early into favor with the inferior branch of the profession. "mr. yorke," said the venerable justice, whilst the barristers were sitting over their wine at a 'judges' dinner,' "i cannot well account for your having so much business, considering how short a time you have been at the bar: i humbly conceive you must have published something; for look you, do you see, there is scarcely a cause in court but you are employed in it on one side or the other. i should therefore be glad to know, mr. yorke, do you see, whether this be the case." playfully denying that he possessed any celebrity as a writer on legal matters, yorke, with an assumption of candor, admitted that he had some thoughts of lightening the labors of law-students by turning coke upon littleton into verse. indeed, he confessed that he had already begun the work of versification. not seeing the nature of the reply, sir lyttleton powys treated the droll fancy as a serious project, and insisted that the author should give a specimen of the style of his contemplated work. whereupon the young barrister--not pausing to remind a company of lawyers of the words of the original. "tenant in fee simple is he which hath lands or tenements to hold to him and his heirs for ever"--recited the lines-- "he that holdeth his lands in fee need neither to quake nor quiver, _i humbly conceive: for look, do you see_ they are his and his heirs' forever." the mimicry of voice being not less perfect than the verbal imitation, yorke's hearers were convulsed with laughter, but so unconscious was sir lyttleton of the ridicule which he had incurred, that on subsequently encountering yorke in london, he asked how "that translation of coke upon littleton was getting on." sir lyttleton died in , and exactly ten years afterwards appeared the first edition of 'the reports of sir edward coke, knt., in verse'--a work which its author may have been inspired to undertake by philip yorke's proposal to versify 'coke on littleton.' had yorke's project been carried out, lawyers would have a large supply of that comic but sound literature of which sir james burrow's reports contain a specimen in the following poetical version of chief justice pratt's memorable decision with regard to a woman of english birth, who was the widow of a foreigner: "a woman having settlement married a man with none, the question was, he being dead, if what she had was gone. "quoth sir john pratt, 'the settlement suspended did remain, living the husband; but him dead it doth revive again.' (_chorus of puisne judges._) "living the husband; but him dead it doth revive again." chief justice pratt's decision on this point having been reversed by his successor, chief justice ryder's judgment was thus reported: "a woman having a settlement, married a man with none, he flies and leaves her destitute; what then is to be done? "quoth ryder, the chief justice, 'in spite of sir john pratt, you'll send her to the parish in which she was a brat. "'_suspension of a settlement_ is not to be maintained; that which she had by birth subsists until another's gained.' (_chorus of puisne judges._) "that which she had by birth subsists until another's gained." in the early months of his married life, whilst playing the part of an oxford don, lord eldon was required to decide in an important action brought by two undergraduates against the cook of university college. the plaintiffs declared that the cook had "sent to their rooms an apple-pie _that could not be eaten_." the defendant pleaded that he had a remarkably fine fillet of veal in the kitchen. having set aside this plea on grounds obvious to the legal mind, and not otherwise then manifest to unlearned laymen, mr. john scott ordered the apple-pie to be brought in court; but the messenger, dispatched to do the judge's bidding, returned with the astounding intelligence that during the progress of the litigation a party of undergraduates had actually devoured the pie--fruit and crust. nothing but the pan was left. judgment: "the charge here is, that the cook has sent up an apple-pie that cannot be eaten. now that cannot be said to have been uneatable which has been eaten; and as this apple-pie has been eaten, it was eatable. let the cook be absolved." but of all the judicial decisions on record, none was delivered with more comical effect than lord loughborough's decision not to hear a cause brought on a wager about a point in the game of 'hazard.' a constant frequenter of brookes's and white's, lord loughborough was well known by men of fashion to be fairly versed in the mysteries of gambling, though no evidence has ever been found in support of the charge that he was an habitual dicer. that he ever lost much by play is improbable; but the scandal-mongers of westminster had some plausible reasons for laughing at the virtuous indignation of the spotless alexander wedderburn, who, whilst sitting at _nisi prius_, exclaimed, "do not swear the jury in this case, but let it be struck out of the paper. i will not try it. the administration of justice is insulted by the proposal that i should try it. to my astonishment i find that the action is brought on a wager as to the mode of playing an illegal, disreputable, and mischievous game called 'hazard;' whether, allowing seven to be the main, and eleven to be a nick to seven, there are more ways than six of nicking seven on the dice? courts of justice are constituted to try rights and redress injuries, not to solve the problems of the gamesters. the gentlemen of the jury and i may have heard of 'hazard' as a mode of dicing by which sharpers live, and young men of family and fortune are ruined; but what do any of us know of 'seven being the main,' or 'eleven being the nick to seven?' do we come here to be instructed in this lore, and are the unusual crowds (drawn hither, i suppose, by the novelty of the expected entertainment) to take a lesson with us in these unholy mysteries, which they are to practice in the evening in the low gaming-houses in st. james street, pithily called by a name which should inspire a salutary terror of entering them? again, i say, let the cause be struck out of the paper. move the court, if you please, that it may be restored, and if my brethren think that i do wrong in the course that i now take, i hope that one of them will officiate for me here, and save me from the degradation of trying 'whether there be more than six ways of nicking seven on the dice, allowing seven to be the main and eleven to be a nick to seven'--a question, after all, admitting of no doubt, and capable of mathematical demonstration." with equal fervor lord kenyon inveighed against the pernicious usage of gambling, urging that the hells of st. james's should, be indicted as common nuisances. the 'legal monk,' as lord carlisle stigmatized him for his violent denunciations of an amusement countenanced by women of the highest fashion, even went so far as to exclaim--"if any such prosecutions are fairly brought before me, and the guilty parties are convicted, whatever may be their rank or station in the country, though they may be the first ladies in the land, they shall certainly exhibit themselves in the pillory." the same considerations, which decided lord loughborough not to try an action brought by a wager concerning chicken-hazard, made lord ellenborough decline to hear a cause where the plaintiff sought to recover money wagered on a cock-fight. "there is likewise," said lord ellenborough, "another principle on which i think an action on such wagers cannot be maintained. they tend to the degradation of courts of justice. it is impossible to be engaged in ludicrous inquiries of this sort consistently with that dignity which it is essential to the public welfare that a court of justice should always preserve. i will not try the plaintiff's right to recover the four guineas, which might involve questions on the weight of the cocks and the construction of their steel spurs." it has already been remarked that in all ages the wits of westminster hall have delighted in puns; and it may be here added, with the exception of some twenty happy verbal freaks, the puns of lawyers have not been remarkable for their excellence. l'estrange records that when a stone was hurled by a convict from the dock at charles i.'s chief justice richardson, and passed just over the head of the judge, who happened to be sitting at ease and lolling on his elbow, the learned man smiled, and observed to those who congratulated him on his escape, "you see now, if i had been an _upright judge_ i had been slaine." under george iii. joseph jekyll[ ] was at the same time the brightest wit and most shameless punster of westminster hall; and such pride did he take in his reputation as a punster, that after the fashion of the wits of an earlier period he was often at considerable pains to give a pun a well-wrought epigrammatic setting. bored with the long-winded speech of a prosy sergeant, he wrote on a slip of paper, which was in due course passed along the barristers' benches in the court where he was sitting-- "the sergeants are a grateful race, their dress and language show it; their purple garments come from _tyre_, their arguments go to it." when garrow, by a more skilful than successful cross-examination, was endeavoring to lure a witness (an unmarried lady of advanced years) into an acknowledgment that payment of certain money in dispute had been tendered, jekyll threw him this couplet-- "garrow, forbear; that tough old jade will never prove a _tender maid_." so also, when lord eldon and sir arthur pigott each made a stand in court for his favorite pronunciation of the word 'lien;' lord eldon calling the word _lion_ and sir arthur maintaining that it was to be pronounced like _lean_, jekyll, with an allusion to the parsimonious arrangements of the chancellor's kitchen, perpetrated the _jeu d'esprit_-- "sir arthur, sir arthur, why what do you mean by saying the chancellor's _lion_ is _lean_? d'ye think that his kitchen's so bad as all that, that nothing within it can ever get fat?" by this difference concerning the pronunciation of a word the present writer is reminded of an amicable contest that occurred in westminster hall between lord campbell and a q.c. who is still in the front rank of court-advocates. in an action brought to recover for damages done to a carriage, the learned counsel repeatedly called, the vehicle in question a broug-ham, pronouncing both syllables of the word _brougham_. whereupon, lord campbell with considerable pomposity observed, "_broom_ is the more usual pronunciation; a carriage of the kind you mean is generally and not incorrectly called a _broom_--that pronunciation is open to no grave objection, and it has the great advantage of saving the time consumed by uttering an extra syllable." half an hour later in the same trial lord campbell, alluding to a decision given in a similar action, said, "in that case the carriage which had sustained injury was an _omnibus_----" "pardon me, my lord," interposed the queen's counsel, with such promptitude that his lordship was startled into silence, "a carriage of the kind, to which you draw attention is usually termed 'bus;' that pronunciation is open to no grave objection, and it has the great advantage of saving the time consumed by uttering two extra syllables." the interruption was followed by a roar of laughter, in which lord campbell joined more heartily than any one else. one of jekyll's happy sayings was spoken at exeter, when he defended several needlemen who were charged with raising a riot for the purpose of forcing the master-tailors to give higher wages. whilst jekyll was examining a witness as to the number of tailors present at the alleged riot, lord eldon--then chief justice of the common pleas--reminded him that three persons can make that which the law regards as a riot; whereupon the witty advocate answered, "yes, my lord, hale and hawkins lay down the law as your lordship states it, and i rely on their authority; for if there must be three men to make a riot, the rioters being _tailors_, there must be nine times three present, and unless the prosecutor make out that there were twenty-seven joining in this breach of the peace, my clients are entitled to an acquittal." on lord eldon enquiring whether he relied on common-law or statute-law, the counsel for the defence answered firmly, "my lord, i rely on a well-known maxim, as old as magna charta, _nine tailors make a man_." finding themselves unable to reward a lawyer for so excellent a jest with an adverse verdict, the jury acquitted the prisoners. towards the close of his career eldon made a still better jest than this of jekyll's concerning tailors. in , when lyndhurst was occupying the woolsack for the first time, and eldon was longing to recover the seals, the latter presented a petition from the tailors' company at glasgow against catholic belief. "what!" asked lord lyndhurst from the woolsack, in a low voice, "do the _tailors_ trouble themselves about such _measures_?" whereto, with unaccustomed quickness, the old tory of the tories retorted, "no wonder; you can't suppose that _tailors_ like _turncoats_." as specimens of a kind of pleasantry becoming more scarce every year, some of sir george rose's court witticisms are excellent. when mr. beams, the reporter, defended himself against the _friction_ of passing barristers by a wooden bar, the flimsiness of which was pointed out to sir george (then mr. rose), the wit answered-- "yes--the partition is certainly thin-- yet thick enough, truly, the beams within." the same originator of happy sayings pointed to eldon's characteristic weakness in the lines-- "mr. leach made a speech, pithy, clear, and strong; mr. hart, on the other part, was prosy, dull, and long; mr. parker made that darker which was dark enough without; mr. bell spoke so well, that the chancellor said--'i doubt.'" far from being offended by this allusion to his notorious mental infirmity, lord eldon, shortly after the verses had floated into circulation, concluded one of his decisions by saying, with a significant smile, "and here _the chancellor does not doubt_." not less remarkable for precipitancy than eldon for procrastination, sir john leach, vice-chancellor, was said to have done more mischief by excessive haste in a single term than eldon in his whole life wrought through extreme caution. the holders of this opinion delighted to repeat the poor and not perspicuous lines-- "in equity's high court there are two sad extremes, 'tis clear; excessive slowness strikes us there, excessive quickness here. "their source, 'twixt good and evil, brings a difficulty nice; the first from eldon's _virtue_, springs, the latter from his _vice_." it is needless to remark that this attempt to gloss the chancellor's shortcomings is an illustration of the readiness with which censors apologize for the misdeeds of eminently fortunate offenders. whilst eldon's procrastination and leach's haste were thus put in contrast, an epigram also placed the chancellor's frailty in comparison with the tedious prolixity of the master of the rolls-- "to cause delay in lincoln's inn two diff'rent methods tend: his lordship's judgments ne'er begin, his honors never end." a mirth-loving judge, justice powell, could be as thoroughly humorous in private life as he was fearless and just upon the bench. swift describes him as a surpassingly merry old gentleman, laughing heartily at all comic things, and his own droll stories more than aught else. in court he could not always refrain from jocularity. for instance, when he tried jane wenham for witch-craft, and she assured him that she could fly, his eye twinkled as he answered, "well, then you may; there is no law against flying." when fowler, bishop of gloucester--a thorough believer in what is now-a-days called spiritualism--was persecuting his acquaintance with silly stories about ghosts, powell gave him a telling reproof for his credulity by describing a horrible apparition which was represented as having disturbed the narrator's rest on the previous night. at the hour of midnight, as the clocks were striking twelve, the judge was roused from his first slumber by a hideous sound. starting up, he saw at the foot of his uncompanioned bed a figure--dark, gloomy, terrible, holding before its grim and repulsive visage a lamp that shed an uncertain light. "may heaven have mercy on us!" tremulously ejaculated the bishop at this point of the story. the judge continued his story: "be calm, my lord bishop; be calm. the awful part of this mysterious interview has still to be told. nerving myself to fashion the words of inquiry, i addressed the nocturnal visitor thus--'strange being, why hast thou come at this still hour to perturb a sinful mortal?' you understand, my lord, i said this in hollow tones--in what i may almost term a sepulchral voice." "ay--ay," responded the bishop, with intense excitement; "go on--i implore you to go on. what did _it_ answer?" "it answered in a voice not greatly different from the voice of a human creature--'please, sir, _i am the watchman on beat, and your street-door is open_.'" readers will remember the use which barham has made of this story in the ingoldsby legends. as a justice of the king's bench, powell had in chief justice holt an associate who could not only appreciate the wit of others, but could himself say smart things. when lacy, the fanatic, forced his way into holt's house in bedford row, the chief justice was equal to the occasion. "i come to you," said lacy, "a prophet from the lord god, who has sent me to thee and would have thee grant a _nolle prosequi_ for john atkins, his servant, whom thou hast sent to prison." whereto the judge answered, with proper emphasis, "thou art a false prophet and a lying knave. if the lord god had sent thee, it would have been to the attorney general, for the lord god knows that it belongeth not to the chief justice, to grant a _nolle prosequi_; but i, as chief justice, can grant a warrant to commit thee to john atkins's company." whereupon the false prophet, sharing the fate of many a true one, was forthwith clapped in prison. now that so much has been said of thurlow's brutal sarcasms, justice demands for his memory an acknowledgment that he possessed a vein of genuine humor that could make itself felt without wounding. in his undergraduate days at cambridge he is said to have worried the tutors of caius with a series of disorderly pranks and impudent _escapades_, but on one occasion he unquestionably displayed at the university the quick wit that in after life rescued him from many an embarrassing position. "sir," observed a tutor, giving the unruly undergraduate a look of disapproval, "i never come to the window without seeing you idling in the court." "sir," replied young thurlow, imitating the don's tone, "i never come into the court without seeing you idling at the window." years later, when he had become a great man, and john scott was paying him assiduous court, thurlow said, in ridicule of the mechanical awkwardness of many successful equity draughtsmen, "jack scott, don't you think we could invent a machine to draw bills and answers in chancery?" having laughed at the suggestion when it was made, scott put away the droll thought in his memory; and when he had risen to be attorney general reminded lord thurlow of it under rather awkward circumstances. macnamara, the conveyancer, being concerned as one of the principals in a chancery suit, lord thurlow advised him to submit the answer to the bill filed against him to the attorney general. in due course the answer came under scott's notice, when he found it so wretchedly drawn, that he advised macnamara to have another answer drawn by some one who understood pleading. on the same day he was engaged at the bar of the house of lords, when lord thurlow came to him, and said, "so i understand you don't think my friend mac's answer will do?" "do!" scott replied, contemptuously. "my lord, it won't do at all! it must have been drawn by that wooden machine which you once told me might be invented to draw bills and answers." "that's very unlucky," answered thurlow, "and impudent too, if you had known--_that i drew the answer myself_." lord lyndhurst used to maintain that it was one of the chief duties of a judge to render it disagreeable to counsel to talk nonsense. jeffreys in his milder moments no doubt salved his conscience with the same doctrine, when he recalled how, after elating him with a compliment, he struck down the rising junior with "lord, sir! you must be cackling too. we told you, mr. bradbury, your objection was very ingenious; that must not make you troublesome: you cannot lay an egg, but you must be cackling over it." doubtless, also, he felt it one of the chief duties of a judge to restrain attorneys from talking nonsense when--on hearing that the solicitor from whom he received his first brief had boastfully remarked, in allusion to past services, "my lord chancellor! i _made_ him!"--he exclaimed, "well, then, i'll lay my maker by the heels," and forthwith committed his former client and patron to the fleet prison. if this bully of the bench actually, as he is said to have done, interrupted the venerable maynard by saying, "you have lost your knowledge of law; your memory, i tell you, is failing through old age," how must every hearer of the speech have exulted when maynard quietly answered, "yes, sir george, i have forgotten more law than you ever learned; but allow me to say, i have not forgotten much." on the other hand it should be remembered that maynard was a man eminently qualified to sow violent animosities, and that he was a perpetual thorn in the flesh of the political barristers, whose principles he abhorred. a subtle and tricky man, he was constantly misleading judges by citing fictitious authorities, and then smiling at their professional ignorance when they had swallowed his audacious fabrications. moreover, the manner of his speech was sometimes as offensive as its substance was dishonest. strafford spoke a bitter criticism not only with regard to maynard and glyn, but with regard to the prevailing tone of the bar, when, describing the conduct of the advocates who managed his prosecution, he said: "glynne and maynard used me _like advocates_, but palmer and whitelock _like gentlemen_; and yet the latter left out nothing against me that was material to be urged against me." as a devonshire man maynard is one of the many cases which may be cited against the smart saying of sergeant davy, who used to observe: "the further i journey toward the west, the more convinced i am that the wise men come from the east." but shrewd, observant, liberal though he was in most respects, he was on one matter so far behind the spirit of the age that, blinded and ruled by an unwise sentiment, he gave his parliamentary support to an abortive measure "to prevent further building in london and the neighborhood." in support of this measure he observed, "this building is the ruin of the gentry and ruin of religion, as leaving many good people without churches to go to. this enlarging of london makes it filled with lacqueys and pages. in st. giles's parish scarce the fifth part come to church, and we shall have no religion at last." whilst justice has suffered something in respect of dignity from the overbearing temper of judges to counsel, from collisions of the bench with the bar, and from the mutual hostility of rival advocates, she has at times sustained even greater injury from the jealousies and altercations of judges. too often wearers of the ermine, sitting on the same bench, nominally for the purpose of assisting each other, have roused the laughter of the bar, and the indignation of suitors, by their petty squabbles. "it now comes to my turn," an irish judge observed, when it devolved on him to support the decision of one or the other of two learned coadjutors, who had stated with more fervor than courtesy altogether irreconcilable opinions--"it now comes to my turn to declare my view of the case, and fortunately i can be brief. i agree with my brother a, from the irresistible force of my brother b's arguments." extravagant as this case may appear, the king's bench of westminster hall, under mansfield and kenyon, witnessed several not less scandalous and comical differences. taking thorough pleasure in his work, lord mansfield was not less industrious than impartial in the discharge of his judicial functions; so long as there was anything for him to learn with regard to a cause, he not only sought for it with pains but with a manifest pleasure similar to that delight in judicial work which caused the french advocate, cottu, to say of mr. justice bayley: "il s'amuse à juger:" but notwithstanding these good qualities, he was often culpably deficient in respect for the opinions of his subordinate coadjutors. at times a vain desire to impress on the minds of spectators that his intellect was the paramount power of the bench; at other times a personal dislike to one of his _puisnes_ caused him to derogate from the dignity of his court, in cases where he was especially careful to protect the interests of suitors. with silence more disdainful than any words could have been, he used to turn away from mr. justice willes, at the moment when the latter expected his chief to ask his opinion; and on such occasions the indignant _puisne_ seldom had the prudence and nerve to conceal his mortification. "i have not been consulted, and i will be heard!" he once shrieked forth in a paroxysm of rage caused by mansfield's contemptuous treatment; and forty years afterwards jeremy bentham, who was a witness of the insult and its effect, observed: "at this distance of time--five-and-thirty or forty years--the feminine scream issuing out of his manly frame still tingles in my ears." mansfield's overbearing demeanor to his _puisnes_ was reproduced with less dignity by his successor; but buller, the judge who wore ermine whilst he was still in his thirty-third year, and who confessed that his "idea of heaven was to sit at nisi prius all day, and to play whist all night," seized the first opportunity to give taffy kenyon a lesson in good manners by stating, with impressive self-possession and convincing logic, the reasons which induced him to think the judgment delivered by his chief to be altogether bad in law and argument. [ ] one of jekyll's best displays of brilliant impudence was perpetrated on a welsh judge, who was alike notorious for his greed of office and his want of personal cleanliness. "my dear sir," jekyll observed in his most amiable manner to this most unamiable personage, "you have asked the minister for almost everything else, why _don't_ you ask him for a piece of soap and a nail-brush?" chapter xli. wits in 'silk' and punsters in 'ermine.' whilst lord camden held the chiefship of the common pleas, he was walking with his friend lord dacre on the outskirts of an essex village, when they passed the parish stocks. "i wonder," said the chief justice, "whether a man in the stocks endures a punishment that is physically painful? i am inclined to think that, apart from the sense of humiliation and other mental anguish, the prisoner suffers nothing, unless the populace express their satisfaction at his fate by pelting him with brick-bats." "suppose you settle your doubts by putting your feet into the holes," rejoined lord dacre, carelessly. in a trice the chief justice was sitting on the ground with his feet some fifteen inches above the level of his seat, and his ankles encircled by hard wood. "now, dacre!" he exclaimed, enthusiastically, "fasten the bolts, and leave me for ten minutes." like a courteous host lord dacre complied with the whim of his guest, and having placed it beyond his power to liberate himself bade him 'farewell' for ten minutes. intending to saunter along the lane and return at the expiration of the stated period, lord dacre moved away, and falling into one of his customary fits of reverie, soon forgot all about the stocks, his friend's freak, and his friend. in the meantime the chief justice went through every torture of an agonizing punishment--acute shootings along the confined limbs, aching in the feet, angry pulsations under the toes, violent cramps in the muscles and thighs, gnawing pain at the point where his person came in immediate contact with the cold ground, pins-and-needles everywhere. amongst the various forms of his physical discomfort, faintness, fever, giddiness, and raging thirst may be mentioned. he implored a peasant to liberate him, and the fellow answered with a shout of derision; he hailed a passing clergyman, and explained that he was not a culprit, but lord camden, chief justice of the common pleas, and one of lord dacre's guests. "ah!" observed the man of cloth, not so much answering the wretched culprit as passing judgment on his case, "mad with liquor. yes, drunkenness is sadly on the increase; 'tis droll, though, for a drunkard in the stocks to imagine himself a chief justice!" and on he passed. a farmer's wife jogged by on her pillion, and hearing the wretched man exclaim that he should die of thirst, the good creature gave him a juicy apple, and hoped that his punishment would prove for the good of his soul. not ten minutes, but ten hours did the chief justice sit in the stocks, and when at length he was carried into lord dacre's house, he was in no humor to laugh at his own miserable plight. not long afterwards he presided at a trial in which a workman brought an action against a magistrate who had wrongfully placed him in the stocks. the counsel for the defence happening to laugh at the statement of the plaintiff, who maintained that he had suffered intense pain during his confinement, lord camden leaned forwards and inquired in a whisper, "brother were you ever in the stocks?" "never, my lord," answered the advocate, with a look of lively astonishment "i have been," was the whispered reply; "and let me assure you that the agony inflicted by the stocks is--_awful_!" of a different sort, but scarcely less intense, was the pain endured by lord mansfield whenever a barrister pronounced a latin word with a false quantity. "my lords," said the scotch advocate, crosby, at the bar of the house of lords, "i have the honor to appear before your lordships as counsel for the curators." "ugh!" groaned the westminster oxford law-lord, softening his reproof by an allusion to his scotch nationality, "curators, mr. crosby, curators: i wish _our_ countrymen would pay a little more attention to prosody." "my lord," replied mr. crosby, with delightful readiness and composure, "i can assure you that _our_ countrymen are very proud of your lordship as the greatest senator and orator of the present age." the barrister who made baron alderson shudder under his robes by applying for a 'nolle prosequi,' was not equally quick at self-defence, when that judge interposed, "stop, sir--consider that this is the last day of term, and don't make things unnecessarily long." it was baron alderson who, in reply to the juryman's confession that he was deaf in one ear, observed, "then leave the box before the trial begins; for it is necessary that jurymen should _hear both sides_." amongst legal wits, lord ellenborough enjoys a high place; and though in dealing out satire upon barristers and witnesses, and even on his judicial coadjutors, he was often needlessly severe, he seldom perpetrated a jest the force of which lay solely in its cruelty. perhaps the most harsh and reprehensible outburst of satiric humor recorded of him is the crushing speech by which he ruined a young man for life. "the _unfortunate_ client for whom it is my privilege to appear," said a young barrister, making his first essay in westminster hall--"the unfortunate client, my lord, for whom i appear--hem! hem!--i say, my lord, my _unfortunate client_----" leaning forwards, and speaking in a soft, cooing voice, that was all the more derisive, because it was so gentle, lord ellenborough said, "you may go on, sir--so far the court is with you." one would have liked his lordship better had he sacrificed his jest to humanity, and acted as long afterwards that true gentleman, mr. justice talfourd, acted, who, seeing a young barrister overpowered with nervousness, gave him time to recover himself by saying, in the kindest possible manner, "excuse me for interrupting you--but for a minute i am not at liberty to pay you attention." whereupon the judge took up his pen and wrote a short note to a friend. before the note was finished, the young barrister had completely recovered his self-possession, and by an admirable speech secured a verdict for his client. a highly nervous man, he might on that day have been broken for life, like ellenborough's victim, by mockery; but fortunate in appearing before a judge whose witty tongue knew not how to fashion unkind words, he triumphed over his temporary weakness, and has since achieved well deserved success in his profession. talfourd might have made a jest for the thoughtless to laugh at; but he preferred to do an act, on which those who loved him like to think. when preston, the great conveyancer, gravely informed the judges of the king's bench that "an estate in fee simple was the highest estate known to the law of england," lord ellenborough checked the great chancery lawyer, and said with politest irony, "stay, stay, mr. preston, let me take that down. an estate" (the judge writing as he spoke) "in fee simple is--the highest estate--known to--the law of england. thank you, mr. preston! the court, sir, is much indebted to you for the information." having inflicted on the court an unspeakably dreary oration, preston, towards the close of the day, asked when it would be their lordship's pleasure to hear the remainder of his argument; whereupon lord ellenborough uttered a sigh of resignation, and answered, 'we are bound to hear you, and we will endeavor to give you our undivided attention on friday next; but as for _pleasure_, that, sir, has been long out of the question.' probably mistelling an old story, and taking to himself the merit of lord ellenborough's reply to preston, sir vicary gibbs (chief of the common pleas) used to tell his friends that sergeant vaughan--the sergeant who, on being subsequently raised to the bench through the influence of his elder brother, sir henry halford, the court physician, was humorously described by the wits of westminster hall as a judge _by prescription_--once observed in a grandiose address to the judges of the common pleas, "for though our law takes cognizance of divers different estates, i may be permitted to say, without reserve or qualification of any kind, that the highest estate known to the law of england is an estate in fee simple." whereupon sir vicary, according to his own account, interrupted the sergeant with an air of incredulity and astonishment. "what is your proposition, brother vaughan? perhaps i did not hear you rightly!" flustered by the interruption, which completely effected its object, the sergeant explained, "my lord, i mean to contend that an estate in fee simple is _one of the highest estates_ known to the law of england, that is, my lord, that it may be under certain circumstances--and sometimes is so." notwithstanding his high reputation for wit, lord ellenborough would deign to use the oldest jests. thus of mr. caldecott, who over and over again, with dull verbosity, had said that certain limestone quarries, like lead and copper mines, "were not rateable, because the limestone could only be reached by boring, which was matter of science," he gravely inquired, "would you, mr. caldecott, have us believe that every kind of _boring_ is matter of science?" with finer humor he nipped in the bud one of randle jackson's flowery harangues. "my lords," said the orator, with nervous intonation, "in the book of nature it is written----" "be kind enough, mr. jackson," interposed lord ellenborough, "to mention the page from which you are about to quote." this calls to mind the ridicule which, at an earlier period of his career, he cast on sheridan for saying at the trial of warren hastings, "the treasures in the zenana of the begum are offerings laid by the hand of piety on the altar of a saint." to this not too rhetorical statement, edward law, as leading counsel for warren hastings, replied by asking, "how the lady was to be considered a saint, and how the camels were to be laid upon the altar?" with greater pungency, sheridan defended himself by saying, "this is the first time in my life that i ever heard of special pleading on a metaphor, or a bill of indictment against a trope; but such is the turn of the learned gentleman's mind, that when he attempts to be humorous no jest can be found, and when serious no fact is visible."[ ] to the last law delighted to point the absurdities of orators who in aiming at the sublime only achieved the ridiculous. "my lords," said mr. gaselee, arguing that mourning coaches at a funeral were not liable to post-horse duty, "it never could have been the intention of a christian legislature to aggravate the grief which mourners endure whilst following to the grave the remains of their dearest relatives, by compelling them at the same time to pay the horse-duty." had mr. gaselee been a humorist, lord ellenborough would have laughed; but as the advocate was well known to have no turn for raillery, the chief justice gravely observed, "mr. gaselee, you incur danger by sailing in high sentimental latitudes." to the surgeon in the witness-box who said, "i employ myself as a surgeon," lord ellenborough retorted, "but does anybody else employ you as a surgeon?" the demand to be examined _on affirmation_ being preferred by a quaker witness, whose dress was so much like the costume of an ordinary _conformist_ that the officer of the court had begun to administer the usual oath, lord ellenborough inquired of the 'friend,' "do you really mean to impose upon the court by appearing here in the disguise of a reasonable being?" very pungent was his ejaculation at a cabinet dinner when he heard that lord kenyon was about to close his penurious old age by dying. "die!--why should he die?--what would he get by that?" interposed lord ellenborough, adding to the pile of jests by which men have endeavored to keep a grim, unpleasant subject out of sight--a pile to which the latest _mot_ was added the other day by lord palmerston, who during his last attack of gout exclaimed playfully. "_die_, my dear doctor! that's the _last_ thing i think of doing." having jested about kenyon's parsimony, as the old man lay _in extremis_, ellenborough placed another joke of the same kind upon his coffin. hearing that through the blunder of an illiterate undertaker the motto on kenyon's hatchment in lincoln's inn fields had been painted '_mors janua vita_,' instead of 'mors janua vitæ,' he exclaimed, "bless you, there's no mistake; kenyon's will directed that it should be 'vita,' so that his estate might be saved the expense of _a diphthong._" capital also was his reply when erskine urged him to accept the great seal. "how can you," he asked, in a tone of solemn entreaty, "wish me to accept the office of chancellor, when you know, erskine, that i am as ignorant of its duties as you are yourself?" at the time of uttering these words, ellenborough was well aware that if he declined them erskine would take the seals. some of his puns were very poor. for instance, his exclamation, "cite to me the decisions of the judges of the land: not the judgments of the chief justice of ely, who is fit only to _rule_ a copybook." one of the best 'legal' puns on record is unanimously attributed by the gossipers of westminster hall to lord chelmsford. as sir frederick thesiger he was engaged in the conduct of a cause, and objected to the irregularity of a learned sergeant who in examining his witnesses repeatedly put leading questions. "i have a right," maintained the sergeant, doggedly, "to _deal_ with my witnesses as i please." "to that i offer no objection," retorted sir frederick; "you may _deal_ as you like, but you shan't _lead_." of the same brilliant conversationalist mr. grantley berkeley has recorded a good story in 'my life and recollections.' walking down st. james's street, lord chelmsford was accosted by a stranger, who exclaimed "mr. birch i believe?" "if you believe that, sir, you'll believe anything," replied the ex-chancellor, as he passed on. when thelwall, instead of regarding his advocate with grateful silence, insisted on interrupting him with vexatious remarks and impertinent criticisms, erskine neither threw up his brief nor lost his temper, but retorted with an innocent flash of merriment. to a slip of paper on which the prisoner had written, "i'll be hanged if i don't plead my own cause," he contented himself with returning answer, "you'll be hanged if you do." his _mots_ were often excellent, but it was the tone and joyous animation of the speaker that gave them their charm. it is said that in his later years, when his habitual loquaciousness occasionally sank into garrulity, he used to repeat his jests with imprudent frequency, shamelessly giving his companions the same pun with each course of a long dinner. there is a story that after his retirement from public life he used morning after morning to waylay visitors on their road through the garden to his house, and, pointing to his horticultural attire and the spade in his hand assure them that he was 'enjoying his otium cum _digging a tatie_.' indeed the tradition lives that before his fall from the woolsack, pert juniors used to lay bets as to the number of times he could fire off a favorite old pun in the course of a sitting in the court of chancery, and that wily leaders habitually strove to catch his favor by giving him opportunities for facetious interruptions during their arguments. if such traditions be truthful, it is no matter for surprise that erskine's court-jokes have come down to us with so many variations. for instance, it is recorded with much circumstantiality that on circuit, accosting a junior who had lost his portmanteau from the back of a post-chaise, he said, with mock gravity, "young gentlemen, henceforth imitate the elephant, the wisest of animals, who always _carries his trunk before him_;" and on equally good authority it is stated that when polito, the keeper of the exeter 'change menagerie, met with a similar accident and brought an action for damages against the proprietor of the coach from the hind-boot of which his property had disappeared, erskine, speaking for the defence, told the jury that they would not be justified in giving a verdict favorable to the man, who, though he actually possessed an elephant, had neglected to imitate its prudent example and carry his trunk before him. as a _littérateur_ erskine met with meagre success; but some of his squibs and epigrams are greatly above the ordinary level of '_vers de société_.' for instance this is his:-- "de quodam rege. "i may not do right, though i ne'er can do wrong; i never can die, though i can not live long; my jowl it is purple, my hand it is fat-- come, riddle my riddle. what is it? _what? what?_" the liveliest illustrations of erskine's proverbial egotism are the squibs of political caricaturists; and from their humorous exaggerations it is difficult to make a correct estimate of the lengths of absurdity to which his intellectual vanity and self-consciousness sometimes carried him. from what is known of his disposition it seems probable that the sarcasms aimed by public writers at his infirmity inclined him to justify their attacks rather than to disprove them by his subsequent demeanor, and that some of his most extravagant outbursts of self-assertion were designed in a spirit of bravado and reckless good-nature to increase the laughter which satirists had raised against him. however this may be, his conduct drew upon him blows that would have ruffled the composure of any less self-complacent or less amiable man. the tory prints habitually spoke of him as counsellor ego whilst he was at the bar; and when it was known that he had accepted the seals, the opposition journals announced that he would enter the house as "baron ego, of eye, in the county of suffolk." another of his nicknames was _lord clackmannan_; and cobbett published the following notice of an harangue made by the fluent advocate in the house of commons:--"mr. erskine delivered a most animated speech in the house of commons on the causes and consequences of the late war, which lasted thirteen hours, eighteen minutes, and a second, by mr. john nichol's stop-watch. mr. erskine closed his speech with a dignified climax: 'i was born free, and, by g-d, i'll remain so!'--[a loud cry of '_hear! hear_' in the gallery, in which were citizens tallien and barrère.] on monday three weeks we shall have the extreme satisfaction of laying before the public a brief analysis of the above speech, our letter-founder having entered into an engagement to furnish a fresh font of i's."[ ] from the days of wriothesley, who may be regarded as the most conspicuous and unquestionable instance of judicial incompetency in the annals of english lawyers, the multitudes have always delighted in stories that illustrate the ignorance and incapacity of men who are presumed to possess, by right of their office, an extraordinary share of knowledge and wisdom. what law-student does not rub his hands as he reads of lord st. john's trouble during term whilst he held the seals, and of the impatience with which he looked forward to the long vacation, when he would not be required to look wise and speak authoritatively about matters concerning which he was totally ignorant. delicious are the stories of francis bacon's clerical successor, who endeavored to get up a _quantum suff_. of chancery law by falling on his knees and asking enlightenment of heaven. gloomily comical are the anecdotes of chief justice fleming, whose most famous and disastrous blunder was his judgment in bates's case. great fun may be gathered from the tales that exemplify the ignorance of law which characterized the military, and also the non-military laymen, who helped to take care of the seals during the civil troubles of the seventeenth century. capital is roger north's picture of bob wright's ludicrous shiftlessness whenever the influence of his powerful relations brought the loquacious, handsome, plausible fellow a piece of business. "he was a comely fellow," says roger north, speaking of the chief justice wright's earlier days, "airy and flourishing both in his habits and way of living; and his relation wren (being a powerful man in those parts) set him in credit with the country; but withal, he was so poor a lawyer that he used to bring such cases as came to him to his friend mr. north, and he wrote the opinion on the paper, and the lawyer copied it, and signed under the case as if it had been his own. it ran so low with him that when mr. north was at london he sent up his cases to him, and had opinions returned by the post; and, in the meantime he put off his clients on pretence of taking the matter into serious consideration." perhaps some readers of this page can point to juniors of the present date whose professional incapacity closely resembles the incompetence of this gay young barrister of charles ii.'s time. laughter again rises at the thought of lord chancellor bathurst and the judicial perplexities and blunders which caused sir charles williams to class him with those who "were cursed and stigmatized by power, and rais'd to be expos'd." much more than an average or altogether desirable amount of amiability has fallen to the reader who can refrain from a malicious smile, when he is informed by reliable history that lord loughborough (no mean lawyer or inefficient judge), gave utterance to so much bad law, as chairman of quarter sessions in canny yorkshire, that when on appeal his decisions were reversed with many polite expressions of _sincere_ regret by the king's bench, all westminster hall laughed in concert at the mistakes of the sagacious chief of the common pleas. but no lawyer, brilliant or dull, has been more widely ridiculed for incompetence than erskine. sir causticus witherett, being asked some years since why a certain chancellor, unjustly accused of intellectual dimness by his political adversaries and by the uninformed public, preferred his seat amongst the barons to his official place on the woolsack, is said to have replied: "the lord chancellor usually takes his seat amongst the peers whenever he can do so with propriety, because he is a highly nervous man, and when he is on the woolsack, he is apt to be frightened at finding himself all alone--_in the dark_." as soon as erskine was mentioned as a likely person to be lord chancellor, rumors began to circulate concerning his total unfitness for the office; and no sooner had he mounted the woolsack than the wits declared him to be alone and in the dark. lord ellenborough's sarcasm was widely repeated, and gave the cue to the advocate's detractors, who had little difficulty in persuading the public that any intelligent law-clerk would make as good a chancellor as thomas erskine. with less discretion than good-humor, erskine gave countenance to the representations of his enemies by ridiculing his own unfitness for the office. during the interval between his appointment and his first appearance as judge in the court of chancery, he made a jocose pretence of 'reading up' for his new duties: and whimsically exaggerating his deficiencies, he represented himself as studying books with which raw students have some degree of familiarity. caught with 'cruise's digest' of the laws relating to real property, open in his hand, he observed to the visitor who had interrupted his studies, "you see, i am taking a little from my _cruise_ daily, without any prospect of coming to the end of it." in the autumn of two gentlemen of the united states having differed in opinion concerning his incompetence in the court of chancery--the one of them maintaining that the greater number of his decrees had been reversed, and the other maintaining that so many of his decisions had not endured reversal--the dispute gave rise to a bet of three dozen of port. with comical bad taste one of the parties to the bet--the one who believed that the chancellor's judgments had been thus frequently upset--wrote to erskine for information on the point. instead of giving the answer which his correspondent desired, erskine informed him in the following terms that he had lost his wine:-- "upper berkley street, nov. , . "sir:--i certainly was appointed chancellor under the administration in which mr. fox was secretary of state, in , and could have been chancellor under no administration in which he had not a post; nor would have accepted without him any office whatsoever. i believe the administration was said, by all the _blockheads_, to be made up of all the _talents_ in the country. "but you have certainly lost your bet on the subject of my decrees. none of them were appealed against, except one, upon a branch of mr. thellusson's will--but it was affirmed without a dissentient voice, on the motion of lord eldon, then and now lord chancellor. if you think i was no lawyer, you may continue to think so. it is plain you are no lawyer yourself; but i wish every man to retain his opinion, though at the cost of three dozen of port. "your humble servant, "erskine. "to save you from spending your money on bets which you are sure to lose, remember that no man can be a great advocate who is no lawyer. the thing is impossible." of the many good stories current about chiefs of the law who are still alive, the present writer, for obvious reasons, abstains from taking notice; but one humorous anecdote concerning a lively judge may with propriety be inserted in these pages, since it fell from his own lips when he was making a speech from the chair at a public dinner. between sixty-five and seventy years from the present time, when sir frederick pollock was a boy at st. paul's school, he drew upon himself the displeasure of dr. roberts, the somewhat irascible head-master of the school, who frankly told sir frederick's father, "sir, you'll live to see that boy of yours hanged." years afterwards, when the boy of whom this dismal prophecy was made had distinguished himself at cambridge and the bar, dr. roberts, meeting sir frederick's mother in society, overwhelmed her with congratulations upon her son's success, and fortunately oblivious of his former misunderstanding with his pupil, concluded his polite speeches by saying--"ah! madam, i always said he'd fill an _elevated_ situation." told by the venerable judge at a recent dinner of 'old paulines,' this story was not less effective than the best of those post-prandial sallies with which william st. julien arabin--the assistant judge of old bailey notoriety--used to convulse his auditors something more than thirty years since. in the 'arabiniana' it is recorded how this judge, in sentencing an unfortunate woman to a long term of transportation, concluded his address with--"you must go out of the country. you have disgraced _even_ your own sex." let this chapter close with a lawyer's testimony to the moral qualities of his brethren. in the garden of clement's inn may still be seen the statue of a negro, supporting a sun-dial, upon which a legal wit inscribed the following lines:-- "in vain, poor sable son of woe, thou seek'st the tender tear; from thee in vain with pangs they flow, for mercy dwells not here. from cannibals thou fled'st in vain; lawyers less quarter give; the _first_ won't eat you till you're _slain_, the _last_ will do't _alive_." unfortunately these lines have been obliterated. [ ] robert dallas--one of edward law's coadjutors in the defence of hastings--gave another 'manager' a more telling blow. indignant with burke for his implacable animosity to hastings, dallas (subsequently chief justice of the common pleas) wrote the stinging lines-- "oft have we wondered that on irish ground no poisonous reptile has e'er yet been found; reveal'd the secret stands of nature's work--she saved her venom to produce her burke." [ ] in the 'anti-jacobin,' canning, in the mock report of an imaginary speech, represented erskine as addressing the 'whig club' thus:--"for his part he should only say that, having been, as he had been, both a soldier and a sailor, if it had been his fortune to have stood in either of these relations to the directory--as _a_ man and a major-general he should not have scrupled to direct his artillery against the national representatives:--as a naval officer he would undoubtedly have undertaken for the removal of the exiled deputies; admitting the exigency, under all its relations, as it appeared to him to exist, and the then circumstances of the times with all their bearings and dependencies, branching out into an infinity of collateral considerations and involving in each a variety of objects, political, physical, and moral; and these, again, under their distinct and separate heads, ramifying into endless subdivisions, which it was foreign to his purpose to consider, mr. erskine concluded by recapitulating, in a strain of agonizing and impressive eloquence, the several more prominent heads of his speech; he had been a soldier and a sailor, and had a son at winchester school--he had been called by special retainers, during the summer, into many different and distant parts of the country--traveling chiefly in post-chaises. he felt himself called upon to declare that his poor faculties were at the service of his country--of the free and enlightened part of it at least. he stood there as a man--he stood in the eye, indeed, in the hand of god--to whom (in the presence of the company and the waiters), he solemnly appealed. he was of noble, perhaps royal, blood--he had a house at hampsted--was convinced of the necessity of a thorough and radical reform. his pamphlets had gone through thirty editions, skipping alternately the odd and even numbers. he loved the constitution, to which he would cling and grapple--and he was clothed with the infirmities of man's nature." chapter xlii. witnesses. in the days when mr. davenport hill, the recorder of birmingham, made a professional reputation for himself in the committee-rooms of the houses of parliament, he had many a sharp tussle with one of those venal witnesses who, during the period of excitement that terminated in the disastrous railway panic, were ready to give scientific evidence on engineering questions, with less regard to truth than to the interests of the persons who paid for their evidence. having by mendacious evidence gravely injured a cause in which mr. hill was interested as counsel, and mr. tite, the eminent architect, and present member for bath, was concerned as a projector, this witness was struck with apoplexy and died--before he could complete the mischief which he had so adroitly begun. under the circumstances, his sudden withdrawal from the world was not an occasion for universal regret. "well, hill, have you heard the news?" inquired mr. tite of the barrister, whom he encountered in middle temple lane on the morning after the engineer's death. "have you heard that ---- died yesterday of apoplexy?" "i can't say," was the rejoinder, "that i shall shed many tears for his loss. he was an arrant scoundrel." "come, come," replied the architect, charitably, "you have always been too hard on that man. he was by no means so bad a fellow as you would make him out. i do verily believe that in the whole course of his life that man never told a lie--_out of the witness-box_." strange to say, this comical testimony to character was quite justified by the fact. this man, who lied in public as a matter of business, was punctiliously honorable in private life. of the simplest method of tampering with witnesses an instance is found in a case which occurred while sir edward coke was chief justice of the king's bench. loitering about westminster hall, one of the parties in an action stumbled upon the witness whose temporary withdrawal from the ways of men he was most anxious to effect. with a perfect perception of the proper use of hospitality, he accosted this witness (a staring, open-mouthed countryman), with suitable professions of friendliness, and carrying him into an adjacent tavern, set him down before a bottle of wine. as soon as the sack had begun to quicken his guest's circulation, the crafty fellow hastened into court with the intelligence that the witness, whom he had left drinking in a room not two hundred yards distant, was in a fit and lying at death's door. the court being asked to wait, the impudent rascal protested that to wait would be useless; and the chief justice, taking his view of the case, proceeded to give judgment without hearing the most important evidence in the cause. in badgering a witness with noisy derision, no barrister of charles ii.'s time could surpass george jeffreys; but on more than one occasion that gentleman, in his most overbearing moments, met with his master in the witness whom he meant to brow-beat. "you fellow in the leathern doublet," he is said to have exclaimed to a countryman whom he was about to cross-examine, "pray, what are you paid for swearing?" "god bless you, sir, and make you an honest man," answered the farmer, looking the barrister full in the face, and speaking with a voice of hearty good-humor; "if you had no more for lying than i have for swearing, you would wear a leather doublet as well as i." sometimes erskine's treatment of witnesses was very jocular, and sometimes very unfair; but his jocoseness was usually so distinct from mere flippant derisiveness, and his unfairness was redeemed by such delicacy of wit and courtesy of manner, that his most malicious _jeux d'esprit_ seldom raised the anger of the witnesses at whom they were aimed. a religious enthusiast objecting to be sworn in the usual manner, but stating that though he would not "kiss the book," he would "hold up his hand" and swear, erskine asked him to give his reason for preferring so eccentric a way to the ordinary mode of giving testimony. "it is written in the book of revelations," answered the man, "that the angel standing on the sea _held up his hand_." "but that does not apply to your case," urged the advocate; "for in the first place, you are no angel; secondly, you cannot tell how the angel would have sworn if he had stood on dry ground, as you do." not shaken by this reply, which cannot be called unfair, and which, notwithstanding its jocoseness, was exactly the answer which the gravest divine would have made to such scruples, the witness persisted in his position; and on being permitted to give evidence in his own peculiar way, he had enough influence with the jury to induce them to give a verdict adverse to erskine's wishes. less fair but more successful was erskine's treatment of the commercial traveller, who appeared in the witness box dressed in the height of fashion, and wearing a starched white necktie folded with the 'brummel fold.' in an instant reading the character of the man, on whom he had never before set eyes, and knowing how necessary it was to put him in a state of extreme agitation and confusion, before touching on the facts concerning which he had come to give evidence, erskine rose, surveyed the coxcomb, and said, with an air of careless amusement, "you were born and bred in manchester, _i perceive_." greatly astonished at this opening remark, the man answered, nervously, that he was "a manchester man--born and bred in manchester." "exactly," observed erskine, in a conversational tone, and as though he were imparting information to a personal friend--"exactly so; i knew it from the absurd tie of your neckcloth." the roars of laughter which followed this rejoinder so completely effected the speaker's purpose that the confounded bagman could not tell his right hand from his left. equally effective was erskine's sharp question, put quickly to the witness, who, in an action for payment of a tailor's bill, swore that a certain dress-coat was badly made--one of the sleeves being longer than the other. "you will," said erskine, slowly, having risen to cross-examine, "swear--that one of the sleeves was--longer--than the other?" _witness._ "i do swear it." _erskine_, quickly, and with a flash of indignation, "then, sir, i am to understand that you positively deny that one of the sleeves was _shorter_ than the other?" startled into a self-contradiction by the suddenness and impetuosity of this thrust, the witness said, "i do deny it." _erskine_, raising his voice as the tumultuous laughter died away, "thank you, sir; i don't want to trouble you with another question." one of erskine's smartest puns referred to a question of evidence. "a case," he observed, in a speech made during his latter years, "being laid before me by my veteran friend, the duke of queensbury--better known as 'old q'--as to whether he could sue a tradesman for breach of contract about the painting of his house; and the evidence being totally insufficient to support the case, i wrote thus: 'i am of opinion that this action will not _lie_ unless the witnesses _do_.'" it is worthy of notice that this witticism was but a revival (with a modification) of a pun attributed to lord chancellor hatton in bacon's 'apophthegmes.' in this country many years have elapsed since duels have taken place betwixt gentlemen of the long robe, or between barristers and witnesses in consequence of words uttered in the heat of forensic strife; but in the last century, and in the opening years of the present, it was no very rare occurrence for a barrister to be called upon for 'satisfaction' by a person whom he had insulted in the course of his professional duty. during george ii.'s reign, young robert henley so mercilessly badgered one zephaniah reeve, whom he had occasion to cross-examine in a trial at bristol, that the infuriated witness--quaker and peace-loving merchant though he was--sent his persecutor a challenge immediately upon leaving court. rather than incur the ridicule of 'going out with a quaker,' and the sin of shooting at a man whom he had actually treated with unjustifiable freedom, henley retreated from an embarrassing position by making a handsome apology; and years afterwards, when he had risen to the woolsack, he entertained his old acquaintance, zephaniah reeve, at a fashionable dinner-party, when he assembled guests were greatly amused by the lord chancellor's account of the commencement of his acquaintance with his quaker friend. between thirty and forty years later thurlow was 'called out' by the duke of hamilton's agent, mr. andrew stewart, whom he had grievously offended by his conduct of the great douglas case. on jan. , - , thurlow and his adversary met in hyde park. on his way to the appointed place, the barrister stopped at a tavern near hyde park corner, and "ate an enormous breakfast," after which preparation for business, he hastened to the field of action. accounts agree in saying that he behaved well upon the ground. long after the bloodless _rencontre_, the scotch agent, not a little proud of his 'affair' with a future lord chancellor, said, "mr. thurlow advanced and stood up to me like an elephant." but the elephant and the mouse parted without hurting each other; the encounter being thus faithfully described in the 'scots' magazine:' "on sunday morning, january , the parties met with swords and pistols, in hyde park, one of them having for his second his brother, colonel s----, and the other having for his mr. l----, member for a city in kent. having discharged pistols, at ten yards' distance, without effect, they drew their swords, but the seconds interposed, and put an end to the affair." one of the best 'northern circuit stories' pinned upon lord eldon relates to a challenge which an indignant suitor is said to have sent to law and john scott. in a trial at york that arose from a horse-race, it was stated in evidence that one of the conditions of the race required that "each horse should be ridden by a gentleman." the race having been run, the holders refused to pay the stakes to the winner on the ground that he was not a gentleman; whereupon the equestrian whose gentility was thus called in question brought an action for the money. after a very humorous inquiry, which terminated in a verdict for the defendants, the plaintiff _was said_ to have challenged the defendants' counsel. messrs. scott and law, for maintaining that he was no gentleman; to which invitation, it also averred, reply was made that the challengees "could not think of fighting one who had been found _no gentleman_ by the solemn verdict of twelve of his countrymen." inquiry, however, has deprived this delicious story of much of its piquancy. eldon had no part in the offence; and law, who was the sole utterer of the obnoxious words, received no invitation to fight. "no message was sent," says a writer, supposed to be lord brougham, in the 'law magazine,' "and no attempt was made to provoke a breach of the peace. it is very possible lord eldon may have said, and lord ellenborough too, that they were not bound to treat one in such a predicament as a gentleman, and hence the story has arisen in the lady's mind. the fact was as well known on the northern circuit as the answer of a witness to a question, whether the party had a right by his circumstances to keep a pack of fox-hounds; 'no more right than i to keep a pack of archbishops.'" curran is said to have received a call, before he left his bed one morning, from a gentleman whom he had cross-examined with needless cruelty and unjustifiable insolence on the previous day. "sir!" said this irate man, presenting himself in curran's bedroom, and rousing the barrister from slumber to a consciousness that he was in a very awkward position, "i am the gintleman whom you insulted yesterday in his majesty's court of justice, in the presence of the whole county, and i am here to thrash you soundly!" thus speaking, the herculean intruder waved a horsewhip over the recumbent lawyer. "you don't mean to strike a man when he is lying down?" inquired curran. "no, bedad; i'll just wait till you've got out of bed and then i'll give it to you sharp and fast." curran's eye twinkled mischievously as he rejoined: "if that's the case, by ---- i'll lie here all day." so tickled was the visitor with this humorous announcement, that he dropped his horsewhip, and dismissing anger with a hearty roar of laughter, asked the counsellor to shake hands with him. in the december of , pepys was present at a trial in guildhall concerning the fraud of a merchant-adventurer, who having insured his vessel for £ when, together with her cargo, she was worth no more than £ , had endeavored to wreck her off the french coast. from pepys's record it appears that this was a novel piece of rascality at that time, and consequently created lively sensation in general society, as well as in legal and commercial coteries. "all the great counsel in the kingdom" were employed in the cause; and though maritime causes then, as now, usually involved much hard swearing, the case was notable for the prodigious amount of perjury which it elicited. for the most part the witnesses were sailors, who, besides swearing with stolid indifference to truth, caused much amusement by the incoherence of their statements and by their free use of nautical expressions, which were quite unintelligible to chief justice (sir robert) hyde. "it was," says pepys, "pleasant to see what mad sort of testimonys the seamen did give, and could not be got to speak in order; and then their terms such as the judge could not understand, and to hear how sillily the counsel and judge would speak as to the terms necessary in the matter, would make one laugh; and above all a frenchman, that was forced to speak in french, and took an english oath he did not understand, and had an interpreter sworn to tell us what he said, which was the best testimony of all." a century later lord mansfield was presiding at a trial consequent upon a collision of two ships at sea, when a common sailor, whilst giving testimony, said, "at the time i was standing abaft the binnacle;" whereupon his lordship, with a proper desire to master the facts of the case, observed, "stay, stay a minute, witness: you say that at the time in question you were _standing abaft the binnacle_; now tell me, where is abaft the binnacle?" this was too much for the gravity of 'the salt,' who immediately before climbing into the witness-box had taken a copious draught of neat rum. removing his eyes from the bench, and turning round upon the crowded court with an expression of intense amusement, he exclaimed at the top of his voice, "he's a pretty fellow for a judge! bless my jolly old eyes!--[the reader may substitute a familiar form of 'imprecation on eye-sight']--you have got a pretty sort of a land-lubber for a judge! he wants me to tell him where _abaft the binnacle is_!" not less amused than the witness, lord mansfield rejoined, "well, my friend, you must fit me for my office by telling me where _abaft the binnacle_ is; you've already shown me the meaning of _half seas over_." with less good-humor the same chief justice revenged himself on dr. brocklesby, who, whilst standing in the witness-box of the court of king's bench, incurred the chief justice's displeasure by referring to their private intercourse. some accounts say that the medical witness merely nodded to the chief justice, as he might have done with propriety had they been taking seats at a convivial table; other accounts, with less appearance of probability, maintain that in a voice audible to the bar, he reminded the chief justice of certain jolly hours which they had spent together during the previous evening. anyhow, lord mansfield was hurt, and showed his resentment in his 'summing-up' by thus addressing the jury: "the next witness is one _r_ocklesby, or _b_rocklesby--_b_rocklesby or _r_ocklesby, i am not sure which; and first, _he swears that he is a physician_." on one occasion lord mansfield covered his retreat from an untenable position with a sparkling pleasantry. an old witness named _elm_ having given his evidence with remarkable clearness, although he was more than eighty years of age, lord mansfield examined him as to his habitual mode of living, and found that he had throughout life been an early riser and a singularly temperate man. "ay," observed the chief justice, in a tone of approval, "i have always found that without temperance and early habits, longevity is never attained." the next witness, the _elder_ brother of this model of temperance, was then called, and he almost surpassed his brother as an intelligent and clear-headed utterer of evidence. "i suppose," observed lord mansfield, "that you also are an early riser." "no, my lord," answered the veteran, stoutly; "i like my bed at all hours, and special-_lie_ i like it of a morning." "ah; but, like your brother, you are a very temperate man?" quickly asked the judge, looking out anxiously for the safety of the more important part of his theory. "my lord," responded this ancient elm, disdaining to plead guilty to a charge of habitual sobriety, "i am a very old man, and my memory is as clear as a bell, but i can't remember the night when i've gone to bed without being more or less drunk." lord mansfield was silent. "ah, my lord," mr. dunning exclaimed, "this old man's case supports a theory upheld by many persons, that habitual intemperance is favorable to longevity." "no, no," replied the chief justice, with a smile, "this old man and his brother merely teach us what every carpenter knows--that elm, whether it be wet or dry, is a very tough wood." another version of this excellent story makes lord mansfield inquire of the elder elm, "then how do you account for your prolonged tenure of existence?" to which question elm is made to respond, more like a lawyer than a simple witness, "i account for it by the terms of the original lease." few stories relating to witnesses are more laughable than that which describes the arithmetical process by which mr. baron perrot arrived at the value of certain conflicting evidence. "gentlemen of the jury," this judge is reported to have said, in summing up the evidence in a trial where the witnesses had sworn with noble tenacity of purpose, "there are fifteen witnesses who swear that the watercourse used to flow in a ditch on the north side of the hedge. on the other hand, gentlemen, there are nine witnesses who swear that the watercourse used to flow on the south side of the hedge. now, gentlemen, if you subtract nine from fifteen, there remain six witnesses wholly uncontradicted; and i recommend you to give your verdict for the party who called those six witnesses." whichever of the half-dozen ways in which it is told be accepted as the right one, the following story exemplifies the difficulty which occasionally arises in courts of justice, when witnesses use provincial terms with which the judge is not familiar. mr. william russell, in past days deputy-surveyor of 'canny newcastle,' and a genuine northumbrian in dialect, brogue, and shrewdness, was giving his evidence at an important trial in the newcastle court-house, when he said--"as i was going along the quay, i saw a hubbleshew coming out of a chare-foot." not aware that on tyne-side the word 'hubbleshew' meant 'a concourse of riotous persons;' that the narrow alleys or lanes of newcastle 'old town' were called by their inhabitants 'chares;' and that the lower end of each alley, where it opened upon quay-side, was termed a 'chare-foot;' the judge, seeing only one part of the puzzle, inquired the meaning of the word 'hubbleshew.' "a crowd of disorderly persons," answered the deputy-surveyor. "and you mean to say," inquired the judge of assize, with a voice and look of surprise, "that you saw a crowd of people come out of a chair-foot?" "i do, my lord," responded the witness. "gentlemen of the jury," said his lordship, turning to the 'twelve good men' in the box, "it must be needless for me to inform you--_that this witness is insane_!" the report of a trial which occurred at newcastle assizes towards the close of the last century gives the following succession of questions and answers:--_barrister._--"what is your name?" _witness._--"adam, sir--adam thompson." _barrister._--"where do you live?" _witness._--"in paradise." _barrister_ (with facetious tone).--"and pray, mr. adam, how long have you dwelt in paradise?" _witness._--"ever since the flood." paradise is the name of a village in the immediate vicinity of newcastle; and 'the flood' referred to by the witness was the inundation (memorable in local annals) of the tyne, which in the year swept away the old tyne bridge. chapter xliii. circuiteers. exposed to some of the discomforts, if not all the dangers,[ ] of travel; required to ride over black and cheerless tracts of moor and heath: now belated in marshy districts, and now exchanging shots with gentlemen of the road; sleeping, as luck favored them, in way-side taverns, country mansions, or the superior hotels of provincial towns--the circuiteers of olden time found their advantage in cultivating social hilarity and establishing an etiquette that encouraged good-fellowship in their itinerant societies. at an early date they are found varying the monotony of cross-country rides with racing-matches and drinking bouts, cock-fights and fox-hunting; and enlivening assize towns and country houses with balls and plays, frolic and song. a prodigious amount of feasting was perpetrated on an ordinary circuit-round of the seventeenth century; and at circuit-messes, judges' dinners, and sheriffs' banquets, saucy juniors were allowed a license of speech to staid leaders and grave dignitaries that was altogether exceptional to the prevailing tone of manners. in the days when chief justice hyde, clarendon's cousin, used to ride the norfolk circuit, old sergeant earl was the leader, or, to use the slang of the period, 'cock of the round'. a keen, close-fisted, tough practitioner, this sergeant used to ride from town to town, chuckling over the knowledge that he was earning more and spending less than any other member of the circuit. one biscuit was all the refreshment which he permitted himself on the road from cambridge to norwich; although he consented to dismount at the end of every ten miles to stretch his limbs. sidling up to sergeant earl, as there was no greater man for him to toady, francis north offered himself as the old man's travelling companion from the university to the manufacturing town; and when earl with a grim smile accepted the courteous suggestion, the young man congratulated himself. on the following morning, however, he had reason to question his good fortune when the sergeant's clerk brought him a cake, and remarked, significantly, "put it in your pocket, sir; you'll want it; for my master won't draw bit till he comes to norwich." it was a hard day's work; but young frank north was rewarded for his civility to the sergeant, who condescended to instruct his apt pupil in the tricks and chicaneries of their profession. "sir," inquired north at the close of the excursion, emboldened by the rich man's affability, "by what system do you keep your accounts, which must be very complex, as you have lands, securities, and great comings-in of all kinds?" "accounts! boy," answered the grey-headed curmudgeon; "i get as much as i can, and i spend as little as i can; that's how i keep my accounts." when north had raised himself to the chiefship of the common pleas he chose the western circuit, "not for the common cause, it being a long circuit, and beneficial for the officers and servants, but because he knew the gentlemen to be loyal and conformable, and that he should have fair quarter amongst them;" and so much favor did he win amongst the loyal and conformable gentry that old bishop mew--the prelate of winchester, popularly known as bishop _patch_, because he always wore a patch of black court-plaster over the scar of a wound which he received on one of his cheeks, whilst fighting as a trooper for charles i.--used to term him the "deliciæ occidentis, or darling of the west." on one occasion this darling of the west was placed in a ludicrous position by the alacrity with which he accepted an invitation from "a busy fanatic," a devonshire gentleman, of good family, and estate, named duke. this "busy fanatic" invited the judges on circuit and their officers to dine and sleep at his mansion on their way to exeter, and subsequently scandalized his guests--all of them of course zealous defenders of the established church--by reading family-prayers before supper. "the gentleman," says the historian, "had not the manners to engage the parish minister to come and officiate with any part of the evening service before supper: but he himself got behind the table in his hall, and read a chapter, and then a long-winded prayer, after the presbyterian way." very displeased were the chief justice and the other judge of assize; and their dissatisfaction was not diminished on the following day when on entering exeter a rumor met them, that "the judges had been at a conventicle, and the grand jury intended to present them and all their retinue for it." not many years elapsed before this darling of the west was replaced, by another chief justice who asserted the power of constituted authorities with an energy that roused more fear than gratitude in the breasts of local magistrates. that grim, ghastly, hideous progress, which jeffreys made in the plenitude of civil and military power through the western counties, was not without its comic interludes; and of its less repulsive scenes none was more laughable than that which occurred in bristol courthouse when the terrible chief justice upbraided the bristol magistrates for taking part in a slave-trade of the most odious sort. the mode in which the authorities of the western port carried on their iniquitous traffic deserves commemoration, for no student can understand the history of any period until he has acquainted himself with its prevailing morality. at a time when by the wealth of her merchants and the political influence of her inhabitants bristol was the second city of england, her mayor and aldermen used daily to sit in judgment on young men and growing boys, who were brought before them and charged with trivial offences. some of the prisoners had actually broken the law: but in a large proportion of the cases the accusations were totally fictitious--the arrests having been made in accordance with the directions of the magistrates, on charges which the magistrates themselves knew to be utterly without foundation. every morning the bristol tolsey or court-house saw a crowd of those wretched captives--clerks out of employment, unruly apprentices, street boys without parents, and occasionally children of honest birth, ay, of patrician lineage, whose prompt removal from their native land was desired by brutal fathers or vindictive guardians; and every morning a mockery of judicial investigation was perpetrated in the name of justice. standing in a crowd the prisoners were informed of the offences charged against them; huddled together in the dock, like cattle in a pen, they caught stray sentences from the lips of the perjured rascals who had seized them in the public ways; and whilst they thus in a frenzy of surprise and fear listened to the statements of counsel for the prosecution, and to the fabrications of lying witnesses, agents of the court whispered to them that if they wished to save their lives they must instantly confess their guilt, and implore the justices to transport them to the plantations. ignorant, alarmed, and powerless, the miserable victims invariably acted on this perfidious counsel; and forthwith the magistrates ordered their shipment to the west indies, where they were sold as slaves--the money paid for them by west india planters in due course finding its way into the pockets of the bristol justices. it is asserted that the wealthier aldermen, through caution, or those few grains of conscience which are often found in the breasts of consummate rogues, forbore to share in the gains of this abominable traffic; but it cannot be gainsaid that the least guilty magistrates winked at the atrocious conduct of their brother-justices. vowing vengeance on the bristol kidnappers jeffreys entered their court-house, and opened proceedings by crying aloud that "he had brought a broom to sweep them with." the mayor of bristol was in those days no common mayor; in assize commissions his name was placed before the names of judges of assize; and even beyond the limits of his jurisdiction he was a man of mark and influence. great therefore was this dignitary's astonishment when jeffreys ordered him--clothed as he was in official scarlet and furs--to stand in the dock. for a few seconds the local potentate demurred; but when the chief justice poured upon him a cataract of blasphemy, and vowed to hang him instantly over the entrance to the tolsey unless he complied immediately, the humiliated chief magistrate of the ancient borough took his place at the felon's bar, and received such a rating as no thief, murderer or rebel had ever heard from george jeffrey's abusive mouth. unfortunately the affair ended with the storm. until the arrival of william of orange the guilty magistrates were kept in fear of criminal prosecution; but the matter was hushed up and covered with amnesty by the new government; so that "the fright only, which was no small one, was all the punishment which these judicial kidnappers underwent; and the gains," says roger north, "acquired by so wicked a trade, rested peacefully in their pockets." it should be remembered that the kidnapping justices whom the odious jeffreys so indignantly denounced were tolerated and courted by their respectable and prosperous neighbors; and some of the worst charges, by which the judge's fame has been rendered odious to posterity, depend upon the evidence of men who, if they were not kidnappers themselves, saw nothing peculiarly atrocious in the conduct of magistrates who systematically sold their fellow-countrymen into a most barbarous slavery. amongst old circuit stories of questionable truthfulness there is a singular anecdote recorded by the biographers of chief justice hale, who, whilst riding the western circuit, tried a half-starved lad on a charges of burglary. the prisoner had been shipwrecked upon the cornish coast, and on his way through an inhospitable district had endured the pangs of extreme hunger. in his distress, the famished wanderer broke the window of a baker's shop and stole a loaf of bread. under the circumstances, hale directed the jury to acquit the prisoner: but, less merciful than the judge, the gentlemen of the box returned a verdict of 'guilty'--a verdict which the chief justice stoutly refused to act upon. after much resistance, the jurymen were starved into submission; and the youth was set at liberty. several years elapsed; and chief justice hale was riding the northern circuit, when he was received with such costly and excessive pomp by the sheriff of a northern county, that he expostulated with his entertainer on the lavish profuseness of his conduct. "my lord," answered the sheriff, with emotion, "don't blame me for showing my gratitude to the judge who saved my life when i was an outcast. had it not been for you, i should have been hanged in cornwall for stealing a loaf, instead of living to be the richest landowner of my native county." a sketch of circuit-life in the middle of the last century may be found in 'a northern circuit, described in a letter to a friend: a poetical essay. by a gentleman of the middle temple. .'--a piece of doggrel that will meet with greater mercy from the antiquary than the poetical critic. in seeking to avoid the customary exactions of their office, the sheriffs of the present generation were only following in the steps of sheriffs who, more than a century past, exerted themselves to reduce the expenses of shrievalties, and whose economical reforms were defended by reference to the conduct of sheriffs under the last of the tudors.--in the days of elizabeth, the sheriffs demanded and obtained relief from an obligation to supply judges on circuit, with food and lodging; under victoria they have recently exclaimed against the custom which required them to furnish guards of javelin-bearers for the protection of her majesty's representatives; when george ii. was king, they grumbled against lighter burdens--for instance, the cost of white kid-gloves and payments to bell-ringers. the sheriff is still required by custom to present the judges with white gloves whenever an assize has been held without a single capital conviction; but in past times, on every _maiden_ assize, he was expected to give gloves not only to the judges, but to the entire body of circuiteers--barristers as well as officers of court.[ ] wishing to keep his official expenditure down to the lowest possible sum, a certain sheriff for cumberland--called in 'a northern circuit,' sir frigid gripus knapper--directed his under-sheriff not to give white gloves on the occasion of a maiden assize at carlisle, and also through the mouth of his subordinate, declined to pay the officers of the circuit certain customary fees. to put the innovator to shame, sir william gascoigne, the judge before whom the case was laid, observed in open court, "though i can compel an immediate payment, it being a demand of right, and not a mere gift, yet i will set him an example by gifts which i might refuse, but will not, because they are customary," and forthwith addressing the steward, added--"call the sheriff's coachman, his pages, and musicians, singing-boys, and vergers, and give them the accustomed gifts as soon as the sheriff comes." from this direction, readers may see that under the old system of presents a judge was compelled to give away with his left hand much of that which he accepted with his right. it appears that sir william gascoigne's conduct had the desired effect; for as soon as the sheriff made his appearance, he repudiated the parsimonious conduct of the under-sheriff--though it is not credible that the subordinate acted without the direction or concurrence of his superior. "i think it," observed the sheriff, in reference to the sum of the customary payments, "as much for the honor of my office, and the country in general, as it is justice to those to whom it is payable; and if any sheriff has been of a different opinion it shall never bias me." from the days when alexander wedderburn, in his new silk gown, to the scandal of all sticklers for professional etiquette, made a daring but futile attempt to seize the lead of the circuit which seventeen years later he rode as judge, 'the northern' had maintained the _prestige_ of being the most important of the english circuits. its palmiest and most famous days belong to the times of norton and wallace, jack lee and john scott, edward law and robert graham; but still amongst the wise white heads of the upper house may be seen at times the mobile features of an aged peer who, as mr. henry brougham, surpassed in eloquence and intellectual brilliance the brightest and most celebrated of his precursors on the great northern round. but of all the great men whose names illustrate the annals of the circuit, lord eldon is the person most frequently remembered in connexion with the jovial ways of circuiteers in the old time. in his later years the port-loving earl delighted to recall the times when as attorney general of the circuit grand court he used to prosecute offenders 'against the peace of our lord the junior,' devise practical jokes for the diversion of the bar, and over bowls of punch at york, lancaster, or kirkby lonsdale, argue perplexing questions about the morals of advocacy. just as john campbell, thirty years later, used to recount with glee how in the mock courts of the oxford circuit he used to officiate as crier, "holding a fire-shovel in his hand as the emblem of his office;" so did old lord eldon warm with mirth over recollections of his circuit revelries and escapades. many of his stories were apocryphal, some of them unquestionably spurious; but the least truthful of them contained an element of pleasant reality. of course jemmy boswell, a decent lawyer, though better biographer, was neither duped by the sham brief, nor induced to apply in court for the writ of 'quare adhaesit pavimento;' but it is quite credible that on the morning after his removal in a condition of vinous prostration from the lancaster flagstones, his jocose friends concocted the brief, sent it to him with a bad guinea, and proclaimed the success of their device. when the chimney-sweeper's boy met his death by falling from a high gallery to the floor of the court-house at the york assizes, whilst sir thomas davenport was speaking, it was john scott who--arguing that the orator's dullness had sent the boy to sleep, and so caused his fatal fall--prosecuted sir thomas for murder in the high court, alleging in the indictment that the death was produced by a "certain blunt instrument of _no value_, called a _long speech_." the records of the northern circuit abound with testimony to the hearty zeal with which the future chancellor took part in the proceedings of the grand court--paying fines and imposing them with equal readiness, now upholding with mock gravity the high and majestic character of the presiding judge, and at another time inveighing against the levity and indecorum of a learned brother who had maintained in conversation that "no man would be such a----fool as to go to a lawyer for advice who knew how to get on without it." the monstrous offender against religion and propriety who gave utterance to this execrable sentiment was pepper arden (subsequently master of the rolls and lord alvanley), and his punishment is thus recorded in the archives of the circuit:--"in this he was considered as doubly culpable, in the first place as having offended, against the laws of almighty god by his profane cursing; for which, however, he made a very sufficient atonement by paying a bottle of claret; and secondly, as having made use of an expression which, if it should become a prevailing opinion, might have the most alarming consequences to the profession, and was therefore deservedly considered in a far more hideous light. for the last offence he was fin'd bottles. pd." one of the most ridiculous circumstances over which the northern circuit men of the last generation delighted to laugh occurred at newcastle, when baron graham--the poor lawyer, but a singularly amiable and placid man, of whom jeckyll observed, "no one but his sempstress could ruffle him"--rode the circuit, and was immortalized as 'my lord 'size,' in mr. john shield's capital song-- "the jailor, for trial had brought up a thief, whose looks seemed a passport for botany bay; the lawyers, some with and some wanting a brief, around the green table were seated so gay; grave jurors and witnesses waiting a call; attorneys and clients, more angry than wise; with strangers and town-people, throng'd the guildhall, all watching and gaping to see my lord 'size. "oft stretch'd were their necks, oft erected their ears, still fancying they heard of the trumpets the sound, when tidings arriv'd, which dissolv'd them in tears, that my lord at the dead-house was then lying drown'd. straight left _tête-a-tête_ were the jailor and thief; the horror-struck crowd to the dead-house quick hies; ev'n the lawyers, forgetful of fee and of brief, set off helter-skelter to view my lord 'size. "and now the sandhill with the sad tidings rings, and the tubs of the taties are left to take care; fishwomen desert their crabs, lobsters, and lings, and each to the dead-house now runs like a hare; the glassmen, some naked, some clad, heard the news, and off they ran, smoking like hot mutton pies; whilst castle garth tailors, like wild kangaroos, came tail-on-end jumping to see my lord 'size. "the dead-house they reach'd, where his lordship they found, pale, stretch'd on a plank, like themselves out of breath, the coroner and jury were seated around, most gravely enquiring the cause of his death. no haste did they seem in, their task to complete, aware that from hurry mistakes often rise; or wishful, perhaps, of prolonging the treat of thus sitting in judgment upon my lord 'size. "now the mansion house butler, thus gravely deposed:-- 'my lord on the terrace seem'd studying his charge and when (as i thought) he had got it compos'd, he went down the stairs and examined the barge; first the stem he surveyed, then inspected the stern, then handled the tiller, and looked mighty wise; but he made a false step when about to return, and souse in the river straight tumbled lord 'size.' "'now his narrative ended, the butler retir'd, whilst betty watt, muttering half drunk through her teeth, declar'd 'in her breast great consarn it inspir'd, that my lord should sae cullishly come by his death;' next a keelman was called on, bold airchy by name, who the book as he kissed showed the whites of his eyes, then he cut an odd caper attention to claim, and this evidence gave them respecting lord 'size;-- "aw was settin' the keel, wi' dick slavers an' matt, an' the mansion house stairs we were just alongside, when we a' three see'd somethin', but didn't ken what, that was splashin' and labberin', aboot i' the tide. 'it's a fluiker,' ki dick; 'no,' ki matt, 'its owre big, it luik'd mair like a skyet when aw furst seed it rise;' kiv aw--for aw'd getten a gliff o' the wig-- 'ods marcy! wey, marrows, becrike, it's lord 'size. "'sae aw huik'd him, an' haul'd him suin into the keel, an' o' top o' the huddock aw rowl'd him aboot; an' his belly aw rubb'd, an' aw skelp'd his back weel, but the water he'd druck'n it wadn't run oot; so aw brought him ashore here, an' doctor's, in vain, furst this way, then that, to recover him tries; for ye see there he's lyin' as deed as a stane, an' that's a' aw can tell ye aboot my lord 'size.' "now the jury for close consultation retir'd: some '_death accidental_' were willing to find; 'god's visitation' most eager requir'd; and some were for 'fell in the river' inclin'd; but ere on their verdict they all were agreed, my lord gave a groan, and wide opened his eyes; then the coach and the trumpeters came with great speed, and back to the mansion house carried lord 'size." amongst memorable northern circuit worthies was george wood, the celebrated special pleader, in whose chambers law, erskine, abbott and a mob of eminent lawyers acquired a knowledge of their profession. it is on record that whilst he and mr. holroyde were posting the northern round, they were accosted on a lonely heath by a well-mounted horseman, who reining in his steed asked the barrister "what o'clock it was?" favorably impressed by the stranger's appearance and tone of voice, wood pulled out his valuable gold repeater, when the highwayman presenting a pistol, and putting it on the cock, said coolly, "_as you have_ a watch, be kind enough to give it me, so that i may not have occasion to trouble you again about the time." to demur was impossible; the lawyer, therefore, who had met his disaster by _going to the country_, meekly submitted to circumstances and surrendered the watch. for the loss of an excellent gold repeater he cared little, but he winced under the banter of his professional brethren, who long after the occurrence used to smile with malicious significance as they accosted him with--"what's the time, wood?" another of the memorable northern circuiteers was john hullock, who, like george wood, became a baron of the exchequer, and of whom the following story is told on good authority. in an important cause tried upon the northern circuit, he was instructed by the attorney who retained him as leader on one side not to produce a certain deed unless circumstances made him think that without its production his client would lose the suit. on perusing the deed entrusted to him with this remarkable injunction, hullock saw that it established his client's case, and wishing to dispatch the business with all possible promptitude, he produced the parchment before its exhibition was demanded by necessity. examination instantly detected the spurious character of the deed, which had been fabricated by the attorney. of course the presiding judge (sir john bayley) ordered the deed to be impounded; but before the order was carried out, mr. hullock obtained permission to inspect it again. restored to his hands, the deed was forthwith replaced in his bag. "you must surrender that deed instantly," exclaimed the judge, seeing hullock's intention to keep it. "my lord," returned the barrister, warmly, "no power on earth shall induce me to surrender it. i have incautiously put the life of a fellow-creature in peril; and though i acted to the best of my discretion, i should never be happy again were a fatal result to ensue." at a loss to decide on the proper course of action, mr. justice bayley retired from court to consult with his learned brother. on his lordship's reappearance in court, mr. hullock--who had also left the court for a brief period--told him that during his absence the forged deed had been destroyed. the attorney escaped; the barrister became a judge. [ ] lord eldon, when he was handsome jack scott of the northern circuit, was about to make a short cut over the sands from ulverstone to lancaster at the of the tide, when he was restrained from acting on his rash resolve by the representations of an hotel keeper. "danger, danger," asked scott, impatiently--"have you ever _lost_ anybody there?" mine host answered slowly, "nae, sir, nae body has been _lost_ on the sands, _the puir bodies have been found at low water_." [ ] with regard to the customary gifts of white gloves mr. foss says:--"gloves were presented to the judges on some occasions: viz., when a man, convicted for murder, or manslaughter, came and pleaded the king's pardon; and, till the act of & william and mary c. , which rendered personal appearance unnecessary, an outlawry could not be reversed, unless the defendant came into court, and with a present of gloves to the judges implored their favor to reverse it. the custom of giving the judge a pair of white gloves upon a maiden assize has continued till the present time." an interesting chapter might be written on the ancient ceremonies and usages obsolete and extant, of our courts of law. here are a few of the practices which such a chapter would properly notice:--the custom, still maintained, which forbids the lord chancellor to utter any word or make any sign, when on lord mayor's day the lord mayor of london enters the court of chancery, and by the mouth of the recorder prays his lordship to honor the guildhall banquet with his presence; the custom--extant so late as lord brougham's chancellorship--which required the holder of the seals, at the installation of a new master of chancery, to install the new master by placing a cap or hat on his head; the custom which in charles ii.'s time, on motion days at the chancellor's, compelled all barristers making motions to contribute to his lordship's 'poor's box'--barristers within the bar paying two shillings, and outer barristers one shilling--the contents of which box were periodically given to magistrates, for distribution amongst the deserving poor of london; the custom which required a newly-created judge to present his colleagues with biscuits and wine; the barbarous custom which compelled prisoners to plead their defence, standing in fetters, a custom enforced by chief justice pratt at the trial of the jacobite against christopher layer, although at the of trial of cranburne for complicity in the 'assassination plot,' holt had enunciated the merciful maxim, "when the prisoners are tried they should stand at ease;" the custom which--in days when forty persons died of gaol fever caught at the memorable black sessions (may, ) at the old bailey, when captain clark was tried for killing captain innes in a duel--strewed rue, fennel, and other herbs on the ledge of the dock, in the faith that the odor of the herbage would act as a barrier to the poisonous exhalations from prisoners sick of gaol distemper, and would protect the assembly in the body of the court from the contagion of the disease. chapter xliv. lawyers and saints. notwithstanding the close connexion which in old times existed between the church and the law, popular sentiment holds to the opinion that the ways of lawyers are far removed from the ways of holiness, and that the difficulties encountered by wealthy travellers on the road to heaven are far greater with rich lawyers than with any other class of rich men. an old proverb teaches that wearers of the long robe never reach paradise _per saltum_, but 'by slow degrees;' and an irreverent ballad supports the vulgar belief that the only attorney to be found on the celestial rolls gained admittance to the blissful abode more by artifice than desert. the ribald broadside runs in the following style:--- "professions will abuse each other; the priests won't call the lawyer brother; while _salkeld_ still beknaves the parson, and says he cants to keep the farce on. yet will i readily suppose they are not truly bitter foes, but only have their pleasant jokes, and banter, just like other folks. and thus, for so they quiz the law, once on a time th' attorney flaw, a man to tell you, as the fact is, of vast chicane, of course of practice; (but what profession can we trace where none will not the corps disgrace? seduced, perhaps, by roguish client, who tempt him to become more pliant), a notice had to quit the world, and from his desk at once was hurled. observe, i pray, the plain narration: 'twas in a hot and long vacation, when time he had but no assistance. tho' great from courts of law the distance, to reach the court of truth and justice (where i confess my only trust is); though here below the special pleader shows talents worthy of a leader, yet his own fame he must support, be sometimes witty with the court or word the passion of a jury by tender strains, or full of fury; misleads them all, tho' twelve apostles, while with the new law the judge he jostles, and makes them all give up their powers to speeches of at least three hours-- but we have left our little man, and wandered from our purpos'd plan: 'tis said (without ill-natured leaven) "if ever lawyers get to heaven, it surely is by slow degrees" (perhaps 'tis slow they take their fees). the case, then, now i fairly state: flaw reached at last to heaven's high gate; quite short he rapped, none did it neater; the gate was opened by st. peter, who looked astonished when he saw, all black, the little man of law; but charity was peter's guide. for having once himself denied his master, he would not o'erpass the penitent of any class; yet never having heard there entered a lawyer, nay, nor ever ventured within the realms of peace and love, he told him mildly to remove, and would have closed the gate of day, had not old flaw, in suppliant way, demurring to so hard a fate, begg'd but a look, tho' through the gate. st. peter, rather off his guard, unwilling to be thought too hard, opens the gate to let him peep in. what did the lawyer? did he creep in? or dash at once to take possession? oh no, he knew his own profession: he took his hat off with respect, and would no gentle means neglect; but finding it was all in vain for him admittance to obtain, thought it were best, let come what will, to gain an entry by his skill. so while st. peter stood aside, to let the door be opened wide, he skimmed his hat with all his strength within the gate to no small length. st. peter stared; the lawyer asked him "only to fetch his hat," and passed him; but when he reached the jack he'd thrown, oh, then was all the lawyer shown; he clapt it on, and arms akembo (as if he had been the gallant bembo), cry'd out--'what think you of my plan? eject me, peter, if you can.'" the celestial courts having devised no process of ejectment that could be employed in this unlooked-for emergency, st. peter hastily withdrew to take counsel's opinion; and during his absence mr. flaw firmly established himself in the realms of bliss, where he remains to this day the black sheep of the saintly family. but though a flippant humorist in these later times could deride the lawyer as a character who had better not force his way into heaven, since he would not find a single personal acquaintance amongst its inhabitants, in more remote days lawyers achieved the honors of canonization, and our forefathers sought their saintly intercession with devout fervor. our calendars still regard the th of july as a sacred day, in memory of the holy swithin, who was tutor to king ethelwulf and king alfred, and chancellor of england, and who certainly deserved his elevation to the fellowship of saints, even had his title to the honor rested solely on a remarkable act which he performed in the exercise of his judicial functions. a familiar set of nursery rhymes sets forth the utter inability of all the king's horses and men to reform the shattered humpty-dumpty, when his rotund highness had fallen from a wall; but when a wretched market-woman, whose entire basketful of new-laid eggs had been wilfully smashed by an enemy, sought in her trouble the aid of chancery, the holy chancellor swithin miraculously restored each broken shell to perfect shape, each yolk to soundness. saith william of malmesbury, recounting this marvellous achievement--"statimque porrecto crucis signo, fracturam omnium ovorum consolidat." like chancellor swithin before him, and like chancellor wolsey in a later time, chancellor becket was a royal tutor;[ ] and like swithin, who still remains the pluvious saint of humid england, and unlike wolsey, who just missed the glory of canonization, becket became a widely venerated saint. but less kind to st. thomas of canterbury than to st. swithin, the reformation degraded becket from the saintly rank by the decision which terminated the ridiculous legal proceedings instituted by henry viii. against the holy reputation of st. thomas. after the saint's counsel had replied to the attorney-general, who, of course, conducted the cause for the crown, the court declared that "thomas, sometime archbishop of canterbury, had been guilty of contumacy, treason and rebellion; that his bones should be publicly burnt, to admonish the living of their duty by the punishment of the dead; and that the offerings made at his shrine should be forfeited to the crown." after the conclusion of the suit for the saint's degradation--a suit which was an extravagant parody of the process for establishing at rome a holy man's title to the honors of canonization--proclamation was made that "forasmuch as it now clearly appeared that thomas becket had been killed in a riot excited by his own obstinacy and intemperate language, and had been afterwards canonized by the bishop of rome as the champion of his usurped authority, the king's majesty thought it expedient to declare to his loving subjects that he was no saint, but rather a rebel and traitor to his prince, and therefore strictly charged and commanded that he should not be esteemed or called a saint; that all images and pictures of him should be destroyed, the festivals in his honor be abolished, and his name and remembrance be erased out of all books, under pain of his majesty's indignation and imprisonment at his grace's pleasure." but neither st. swithin nor st. thomas of canterbury, lawyers though they were, deigned to take the legal profession under especial protection, and to mediate with particular officiousness between the long robe and st. peter. the peculiar saint of the profession was st. evona, concerning whom carr, in his 'remarks of the government of the severall parts of germanie, denmark, &c.,' has the following passage: and now because i am speaking of petty-foggers, give me leave to tell you a story i mett with when i lived in rome. goeing with a romane to see some antiquityes, he showed me a chapell dedicated to st. evona, a lawyer of brittanie, who, he said, came to rome to entreat the pope to give the lawyers of brittanie a patron, to which the pope replied, that he knew of no saint but what was disposed to other professions. at which evona was very sad, and earnestly begd of the pope to think of one for him. at last the pope proposed to st. evona that he should go round the church of st. john de latera blindfold, and after he had said so many ave marias, that the first saint he laid hold of should be his patron, which the good old lawyer willingly undertook, and at the end of his ave maryes he stopt at st. michael's altar, where he layed hold of the divell, under st. michael's feet, and cry'd out, this is our saint, let him be our patron. so being unblindfolded, and seeing what a patron he had chosen, he went to his lodgings so dejected, that a few moneths after he died, and coming to heaven's gates knockt hard. whereupon st. peter asked who it was that knockt so bouldly. he replied that he was st. evona the advocate. away, away, said st. peter, here is but one advocate in heaven; here is no room for you lawyers. o but, said st. evona, i am that honest lawyer who never tooke fees on both sides, or pleaded in a bad cause, nor did i ever set my naibours together by the ears, or lived by the sins of the people. well, then, said st. peter, come in. this newes coming down to rome, a witty poet wrote on st. evona's tomb these words:-- 'st. evona un briton, advocat non larron. hallelujah.' this story put me in mind of ben jonson goeing throw a church in surrey, seeing poore people weeping over a grave, asked one of the women why they wept. oh, said shee, we have lost our pretious lawyer, justice randall; he kept us all in peace, and always was so good as to keep us from goeing to law; the best man ever lived. well, said ben jonson, i will send you an epitaph to write upon his tomb, which was-- 'god works wonders now and then, here lies a lawyer an honest man.' an important vestige of the close relations which formerly existed between the law and the church is still found in the ecclesiastical patronage of the lord chancellor; and many are the good stories told of interviews that took place between our more recent chancellors and clergymen suing for preferment. "who sent you, sir?" thurlow asked savagely of a country curate, who had boldly forced his way into the chancellor's library in great ormond street, in the hope of winning the presentation to a vacant living. "in whose _name_ do you come, that you venture to pester me about your private affairs? i say, sir--what great lords sent you to bother me in my house?" "my lord," answered the applicant, with a happy combination of dignity and humor, "no great man supports my entreaty; but i may say with honesty, that i come to you in the name of the lord of hosts." pleased by the spirit and wit of the reply, thurlow exclaimed, "the lord of hosts! the lord of hosts! you are the first parson that ever applied to me in that lord's name; and though his title can't be found in the peerage, by ---- you shall have the living." on another occasion the same chancellor was less benign, but not less just to a clerical applicant. sustained by queen charlotte's personal favor and intercession with thurlow, the clergyman in question felt so sure of obtaining the valuable living which was the object of his ambition, that he regarded his interview with the chancellor as a purely formal affair. "i have, sir," observed lord thurlow, "received a letter from the curate of the parish to which it is my intention to prefer you, and on inquiry i find him to be a very worthy man. the father of a large family, and a priest who has labored zealously in the parish for many years, he has written to me--not asking for the living, but modestly entreating me to ask the new rector to retain him as curate. now, sir, you would oblige me by promising me to employ the poor man in that capacity." "my lord," replied queen charlotte's pastor, "it would give me great pleasure to oblige your lordship in this matter, but unfortunately i have arranged to take a personal friend for my curate." his eyes flashing angrily, thurlow answered, "sir, i cannot force you to take this worthy man for your curate, but i can make him the rector; and by ---- he shall have the living, and be in a position to offer you the curacy." of lord loughborough a reliable biographer records a pleasant and singular story. having pronounced a decision in the house of lords, which deprived an excellent clergyman of a considerable estate and reduced him to actual indigence, the chancellor, before quitting the woolsack, addressed the unfortunate suitor thus:--"as a judge i have decided against you, whose virtues are not unknown to me; and in acknowledgment of those virtues i beg you to accept from me a presentation to a living now vacant, and worth £ per annum." capital also are the best of many anecdotes concerning eldon and his ecclesiastical patronage. dating the letter from no. , charlotte street, pimlico, the chancellor's eldest son sent his father the following anonymous epistle:-- "hear, generous lawyer! hear my prayer, nor let my freedom make, you stare, in hailing you jack scott! tho' now upon the woolsack placed, with wealth, with power, with title graced, _once_ nearer was our lot. "say by what name the hapless bard may best attract your kind regard-- plain jack?--sir john?--or eldon? give from your ample store of giving, a starving priest some little living-- the world will cry out 'well done.' "in vain, without a patron's aid, i've prayed and preached, and preached and prayed-- _applauded_ but _ill-fed_. such vain _éclat_ let others share; alas, i cannot feed on air-- i ask not _praise_, but _bread_." satisfactorily hoaxed by the rhymer, the chancellor went to pimlico in search of the clerical poetaster, and found him not. prettier and less comic is the story of miss bridge's morning call upon lord eldon. the chancellor was sitting in his study over a table of papers when a young and lovely girl--slightly rustic in her attire, slightly embarrassed by the novelty of her position, but thoroughly in command of her wits--entered the room, and walked up to the lawyer's chair. "my dear," said the chancellor, rising and bowing with old-world courtesy, "who _are_ you?" "lord eldon," answered the blushing maiden, "i am bessie bridge of weobly, the daughter of the vicar of weobly, and papa has sent me to remind you of a promise which you made him when i was a little baby, and you were a guest in his house on the occasion of your first election as member of parliament for weobly." "a promise, my dear young lady?" interposed the chancellor, trying to recall how he had pledged himself. "yea, lord eldon, a promise. you were standing over my cradle when papa said to you, 'mr. scott, promise me that if ever you are lord chancellor, when my little girl is a poor clergyman's wife, you will give her husband a living;' and you answered, 'mr. bridge, my promise is not worth half-a-crown, but i give it to you, wishing it were worth more.'" enthusiastically the chancellor exclaimed, "you are quite right. i admit the obligation. i remember all about it;" and, then, after a pause, archly surveying the damsel, whose graces were the reverse of matronly, he added, "but surely the time for keeping my promise has not yet arrived? you cannot be any one's wife at present?" for a few seconds bessie hesitated for an answer, and then, with a blush and a ripple of silver laughter she replied, "no, but i do so wish to be _somebody's_ wife. i am engaged to a young clergyman; and there's a living in herefordshire near my old home that has recently fallen vacant, and if you'll give it to alfred, why then, lord eldon, we shall marry before the end of the year." is there need to say that the chancellor forthwith summoned his secretary, that the secretary forthwith made out the presentation to bessie's lover, and that having given the chancellor a kiss of gratitude, bessie made good speed back to herefordshire, hugging the precious document the whole way home? a bad but eager sportsman, lord eldon used to blaze away at his partridges and pheasants with such uniform want of success that lord stowell had truth as well as humor on his side when he observed, "my brother has done much execution this shooting season; with his gun he has _killed a great deal of time_." having ineffectually discharged two barrels at a covey of partridges, the chancellor was slowly walking to the gate of one of his encome turnip-fields when a stranger of clerical garb and aspect hailed him from a distance, asking, "where is lord eldon?" not anxious to declare himself to the witness of his ludicrously bad shot, the chancellor answered evasively, and with scant courtesy, "not far off." displeased with the tone of this curt reply, the clergyman rejoined, "i wish you'd use your tongue to better purpose than you do your gun, and tell me civily where i can find the chancellor." "well," responded the sportsman, when he had slowly approached his questioner, "here you see the chancellor--i am lord eldon." it was an untoward introduction to the chancellor for the strange clergyman who had traveled from the north of lancashire to ask for the presentation to a vacant living. partly out of humorous compassion for the applicant who had offered rudeness, if not insult to the person whom he was most anxious to propitiate; partly because on inquiry he ascertained the respectability of the applicant; and partly because he wished to seal by kindness the lips of a man who could report on the authority of his own eyes that the best lawyer was also the worst shot in all england, eldon gave the petitioner the desired preferment. "but now," the old chancellor used to add in conclusion, whenever he told the story, "see the ingratitude of mankind. it was not long before a large present of game reached me, with a letter from my new-made rector, purporting that he had sent it to me, because _from what he had seen of my shooting he_ supposed i must be badly off for game. think of turning upon me in this way, and wounding me in my tenderest point." amongst eldon's humorous answers to applications for preferment should be remembered his letter to dr. fisher of the charterhouse: on one side of a sheet of paper, "dear fisher, i cannot, to-day, give you the preferment for which you ask.--i remain your sincere friend, eldon.--_turn over_;" and on the other side, "i gave it to you yesterday." this note reminds us of erskine's reply to sir john sinclair's solicitation for a subscription to the testimonial which sir john invited the nation to present to himself. on the one side of a sheet of paper it ran, "my dear sir john, i am certain there are few in this kingdom who set a higher value on your services than myself, and i have the honor to subscribe," and on the other side it concluded, "myself your obedient faithful servant, erskine." [ ] swithin was tutor to ethelwulf and alfred. becket was tutor to henry ii.'s eldest son. wolsey--who took delight in discharging scholastic functions from the days when he birched schoolboys at magdalen college, oxford, till the time when in the plenitude of his grandeur he framed regulations for dean colet's school of st. paul's and wrote an introduction to a latin grammar for the use of children--acted as educational director to the princess mary, and superintended the studies of henry viii.'s natural son, the earl of richmond. amongst pedagogue-chancellors, by license of fancy, may be included the earl of clarendon, whose enemies used to charge him with 'playing the schoolmaster to his king,' and in their desire to bring him into disfavor at court used to announce his approach to charles ii. by saying, "here comes your schoolmaster." part ix. at home: in court: and in society. chapter xlv. lawyers at their own tables. a long list, indeed, might be made of abstemious lawyers; but their temperance is almost invariably mentioned by biographers as matter for regret and apology, and is even made an occasion for reproach in cases where it has not been palliated by habits of munificent hospitality. in the catalogue of chancellor warham's virtues and laudable usages, erasmus takes care to mention that the primate was accustomed to entertain his friends, to the number of two hundred at a time: and when the man of letters notices the archbishop's moderation with respect to wines and dishes--a moderation that caused his grace to eschew suppers, and never to sit more than an hour at dinner--he does not omit to observe that though the great man "made it a rule to abstain entirely from supper, yet if his friends were assembled at that meal he would sit down along with them and promote their conviviality." splendid in all things, wolsey astounded envious nobles by the magnificence of his banquets, and the lavish expenses of his kitchens, wherein his master-cooks wore raiment of richest materials--the _chef_ of his private kitchen daily arraying himself in a damask-satin or velvet, and wearing on his neck a chain of gold. of a far other kind were the tastes of wolsey's successor, who, in the warmest sunshine of his power, preferred a quiet dinner with erasmus to the pompous display of state banquets, and who wore a gleeful light in his countenance when, after his fall, he called his children and grandchildren about him, and said: "i have been brought up at oxford, at an inn of chancery, at lincoln's inn, and in the king's court--from the lowest degree to the highest, and yet have i in yearly revenues at this present, little left me above a hundred pounds by the year; so that now, if we wish to live together, you must be content to be contributaries together. but my counsel is that we fall not to the lowest fare first; we will not, therefore, descend to oxford fare, nor to the fare of new inn, but we will begin with lincoln's inn diet, where many right worshipful men of great account and good years do live full well; which if we find ourselves the first year not able to maintain, then will we in the next year come down to oxford fare, where many great, learned, and ancient fathers and doctors are continually conversant; which if our purses stretch not to maintain neither, then may we after, with bag and wallet, go a-begging together, hoping that for pity some good folks will give us their charity and at every man's door to sing a _salve regina_, whereby we shall keep company and be merry together." students recalling the social life of england should bear in mind the hours kept by our ancestors in the fourteenth and two following centuries. under the plantagenets noblemen used to sup at five p.m., and dine somewhere about the breakfast hour of mayfair in a modern london season. gradually hours became later; but under the tudors the ordinary dinner hour for gentlepeople was somewhere about eleven a.m., and their usual time for supping was between five p.m. and six p.m., tradesmen, merchants and farmers dining and supping at later hours than their social superiors. "with us," says hall the chronicler, "the nobility, gentry, and students, do ordinarily go to dinner at eleven before noon, and to supper at five, or between five and six, at afternoon. the merchants dine and sup seldom before twelve at noon and six at night. the husbandmen also dine at high noon as they call it, and sup at seven or eight; but out of term in our universities the scholars dine at ten." thus whilst the idlers of society made haste to eat and drink, the workers postponed the pleasures of the table until they had made a good morning's work. in the days of morning dinners and afternoon suppers, the law-courts used to be at the height of their daily business at an hour when templars of the present generation have seldom risen from bed. chancellors were accustomed to commence their daily sittings in westminster at seven a.m. in summer, and at eight a.m. in winter months. lord keeper williams, who endeavored to atone for want of law by extraordinarily assiduous attention to the duties of his office, used indeed to open his winter sittings by candlelight between six and seven o'clock. many were the costly banquets of which successive chancellors invited the nobility, the judges, and the bar, to partake at old york house; but of all the holders of the great seal who exercised pompous hospitality in that picturesque palace, francis bacon was the most liberal, gracious, and delightful entertainer. where is the student of english history who has not often endeavored to imagine the scene when ben jonson sat amongst the honored guests of "england's high chancellor, the destin'd heir, in his soft cradle, to his father's chair," and little prescient of the coming storm, spoke of his host as one "whose even thread the fates spin round and full, out of their choicest and their whitest wool." even at the present day lawyers have reason to be grateful to bacon for the promptitude with which, on taking possession of the marble chair, he revived the ancient usages of earlier holders of the seal, and set an example of courteous hospitality to the bar, which no subsequent chancellor has been able to disregard without loss of respect and _prestige_. though a short attack of gout qualified the new pleasure of his elevation--an attack attributed by the sufferer to his removal "from a field air to a thames air," _i.e._, from gray's inn to the south side of the strand--lord keeper bacon lost no time in summoning the judges and most eminent barristers to his table; and though the gravity of his indisposition, or the dignity of his office, forbade him to join in the feast, he sat and spoke pleasantly with them when the dishes had been removed. "yesterday," he wrote to buckingham, "which was my weary day, i bid all the judges to dinner, which was not used to be, and entertained them in a private withdrawing chamber with the learned counsel. when the feast was past i came amongst them and sat me down at the end of the table, and prayed them to think i was one of them, and but a foreman." nor let us, whilst recalling bacon's bounteous hospitalities, fail in justice to his great rival, sir edward coke---who, though he usually held himself aloof from frivolous amusements, and cared but little for expensive repasts, would with a liberal hand place lordly dishes before lordly guests; and of whom it is recorded in the 'apophthegmes,' that when any great visitor dropped in upon him for pot-luck without notice he was wont to say, "sir, since you sent me no notice of your coming, you must dine with me; but if i had known of it in due time i would have dined with you." from such great men as lord nottingham and lord guildford, who successively kept high state in queen street, lincoln's inn fields, to fat _puisnes_ occupying snug houses in close proximity to the inns of court, and lower downwards to leaders of the bar and juniors sleeping as well as working in chambers, the restoration lawyers were conspicuous promoters of the hilarity which was one of the most prominent and least offensive characteristics of charles ii.'s london. lord nottingham's sumptuous hospitalities were the more creditable, because he voluntarily relinquished his claim to £ per annum, which the royal bounty had assigned him as a fund to be expended in official entertainments. similar praise cannot be awarded to lord guildford; but justice compels the admission that, notwithstanding his love of money, he maintained the _prestige_ of his place, so far as a hospitable table and profuse domestic expenditure could support it. contrasting strongly with the lawyers of this period, who copied in miniature the impressive state of clarendon's princely establishments, were the jovial, catch-singing, three-bottle lawyers--who preferred drunkenness to pomp; an oaken table, surrounded by jolly fellows, to ante-rooms crowded with obsequious courtiers; a hunting song with a brave chorus to the less stormy diversion of polite conversation. of these free-living lawyers, george jeffreys was a conspicuous leader. not averse to display, and not incapable of shining in refined society, this notorious man loved good cheer and jolly companions beyond all other sources of excitement; and during his tenure of the seals, he was never more happy than when he was presiding over a company of sharp-witted men-about-town whom he had invited to indulge in wild talk and choice wine at his mansion that overlooked the lawns, the water, and the trees of st. james's park. on such occasions his lordship's most valued boon companion was mountfort, the comedian, whom he had taken from the stage and made a permanent officer of the duke street household. whether the actor was required to discharge any graver functions in the chancellor's establishment is unknown; but we have sir john reresby's testimony that the clever mimic and brilliant libertine was employed to amuse his lordship's guests by ridiculing the personal and mental peculiarities of the judges and most eminent barristers. "i dined," records sir john, "with the lord chancellor, where the lord mayor of london was a guest, and some other gentlemen. his lordship having, according to custom, drunk deep at dinner, called for one mountfort, a gentleman of his, who had been a comedian, an excellent mimic; and to divert the company, as he was pleased to term it, he made him plead before him in a feigned cause, during which he aped the judges, and all the great lawyers of the age, in tone of voice and in action and gesture of body, to the very great ridicule, not only of the lawyers, but of the law itself, which to me did not seem altogether prudent in a man in his lofty station in the law; diverting it certainly was, but prudent in the lord chancellor i shall never think it." the fun of mountfort's imitations was often heightened by the presence of the persons whom they held up to derision--some of whom would see and express natural displeasure at the affront; whilst others, quite unconscious of their own peculiarities, joined loudly in the laughter that was directed against themselves. as pet buffoon of the tories about town, mountfort was followed, at a considerable distance of time, by estcourt--an actor who united wit and fine humor with irresistible powers of mimicry; and who contrived to acquire the respect and affectionate regard of many of those famous whigs whom it was alike his pleasure and his business to render ridiculous. in the _spectator_ steele paid him a tribute of cordial admiration; and cibber, noticing the marvellous fidelity of his imitations, has recorded, "this man was so amazing and extraordinary a mimic, that no man or woman, from the coquette to the privy counsellor, ever moved or spoke before him, but he could carry their voice, look, mien, and motion instantly into another company. i have heard him make long harangues, and form various arguments, even in the manner of thinking of an eminent pleader at the bar, with every the least article and singularity of his utterance so perfectly imitated, that he was the very _alter ipse_, scarce to be distinguished from the original." with the exception of kenyon and eldon, and one or two less conspicuous instances of judicial penuriousness, the judges of the georgian period were hospitable entertainers. chief justice lee, who died in , gained credit for an adequate knowledge of law by the sumptuousness and frequency of the dinners with which he regaled his brothers of the bench and learned counsellors. chief justice mansfield's habitual temperance and comparative indifference to the pleasures of the table did not cause him to be neglectful of hospitable duties. notwithstanding the cold formality of lord hardwicke's entertainments, and the charges of niggardliness preferred against lady hardwicke's domestic system by opposition satirists, philip yorke used to entertain the chiefs of his profession with pomp, if not with affability. thurlow entertained a somewhat too limited circle of friends with english fare and a superabundance of choice port in great ormond street. throughout his public career, alexander wedderburn was a lavish and delightful host, amply atoning in the opinion of frivolous society for his political falsity by the excellence and number of his grand dinners. on entering the place of solicitor-general, he spent £ on a service of plate; and as lord loughborough he gratified the bar and dazzled the fashionable world by hospitality alike sumptuous and brilliant. several of the georgian lawyers had strong predilections for particular dishes or articles of diet. thurlow was very fanciful about his fruit; and in his later years he would give way to ludicrous irritability, if inferior grapes or faulty peaches were placed before him. at brighton, in his declining years, the ex-chancellor's indignation at a dish of defective wall-fruit was so lively that--to the inexpressible astonishment of horne tooke and other guests--he caused the whole of a very fine dessert to be thrown out of the window upon the marine parade. baron graham's weakness was for oysters, eaten as a preparatory whet to the appetite before dinner; and it is recorded of him that on a certain occasion, when he had been indulging in this favorite pre-prandial exercise, he observed with pleasant humor--"oysters taken before dinner are said to sharpen the appetite; but i have just consumed half-a-barrel of fine natives--and speaking honestly, i am bound to say that i don't feel quite as hungry as when i began." thomas manners button's peculiar _penchant_ was for salads; and in a moment of impulsive kindness he gave lady morgan the recipe for his favorite salad--a compound of rare merit and mysterious properties. bitterly did the old lawyer repent his unwise munificence when he read 'o'donnell.' warmly displeased with the political sentiments of the novel, he ordered it to be burnt in the servants' hall, and exclaimed, peevishly, to lady manners, "i wish i had not given her the secret of my salad." in no culinary product did lord ellenborough find greater delight than lobster-sauce; and he gave expression to his high regard for that soothing and delicate compound when he decided that persons engaged in lobster-fishery were exempt from legal liability to impressment. "then is not," inquired his lordship, with solemn pathos, "the lobster-fishery a fishery, and a most important fishery, of this kingdom, though carried on in shallow water? the framers of the law well knew that the produce of the deep sea, without the produce of the shallow water, would be of comparatively small value, and intended that turbot, when placed upon our tables, should be flanked by good lobster-sauce." eldon's singular passion for fried 'liver and bacon' was amongst his most notorious and least pleasant peculiarities. even the prince regent condescended to humor this remarkable taste by ordering a dish of liver and bacon to be placed on the table when the chancellor dined with him at brighton. sir john leach, master of the rolls, was however less ready to pander to a depraved appetite. lord eldon said, "it will give me great pleasure to dine with you, and since you are good enough to ask me to order a dish that shall test your new _chef's_ powers--i wish you'd tell your frenchman to fry some liver and bacon for me." "are you laughing at me or my cook?" asked sir john leach, stiffly, thinking that the chancellor was bent on ridiculing his luxurious mode of living. "at neither," answered eldon, with equal simplicity and truth; "i was only ordering the dish which i enjoy beyond all other dishes." although eldon's penuriousness was grossly exaggerated by his detractors, it cannot be questioned that either through indolence, or love of money, or some other kind of selfishness, he was very neglectful of his hospitable duties to the bench and the bar. "verily he is working off the arrears of the lord chancellor," said romilly, when sir thomas plummer, the master of the rolls, gave a succession of dinners to the bar; and such a remark would not have escaped the lips of the decorous and amiable romilly had not circumstances fully justified it. still it is unquestionable that eldon's cabinet dinners were suitably expensive; and that he never grudged his choicest port to the old attorneys and subordinate placemen who were his obsequious companions towards the close of his career. for the charges of sordid parsimony so frequently preferred against kenyon it is to be feared there were better grounds. under the steadily strengthening spell of avarice he ceased to invite even old friends to his table; and it was rumored that in course of time his domestic servants complained with reason that they were required to consume the same fare as their master deemed sufficient for himself. "in lord kenyon's house," a wit exclaimed, "all the year through it is lent in the kitchen, and passion week in the parlor." another caustic quidnunc remarked, "in his lordship's kitchen the fire is dull, but the spits are always bright;" whereupon jekyll interposed with an assumption of testiness, "spits! in the name of common sense i order you not to talk about _his_ spits, for nothing turns upon them." very different was the temper of erskine, who spent money faster than kenyon saved it, and who died in indigence after holding the great seal of england, and making for many years a finer income at the bar than any of his contemporaries not enjoying crown patronage. many are the bright pictures preserved to us of his hospitality to politicians and lawyers, wits, and people of fashion; but none of the scenes is more characteristic than the dinner described by sir samuel romilly, when that good man met at erskine's hampstead villa the chiefs of the opposition and mr. pinkney, the american minister. "among the light, trifling topics of conversation after dinner," says sir samuel romilly, "it may be worth while to mention one, as it strongly characterizes lord erskine. he has always expressed and felt a strong sympathy with animals. he has talked for years of a bill he was to bring into parliament to prevent cruelty towards them. he has always had some favorite animals to whom he has been much attached, and of whom all his acquaintance have a number of anecdotes to relate; a favorite dog which he used to bring, when he was at the bar, to all his consultations; another favorite dog, which, at the time when he was lord chancellor, he himself rescued in the street from some boys who were about to kill it under the pretence of its being mad; a favorite goose, which followed him wherever he walked about his grounds; a favorite macaw, and other dumb favorites without number. he told us now that he had got two favorite leeches. he had been blooded by them last autumn when he had been taken dangerously ill at portsmouth; they had saved his life, and he had brought them with him to town, had ever since kept them in a glass, had himself every day given them fresh water, and had formed a friendship for them. he said he was sure they both knew him and were grateful to him. he had given them different names, 'home' and 'cline' (the names of two celebrated surgeons), their dispositions being quite different. after a good deal of conversation about them, he went himself, brought them out of his library, and placed them in their glass upon the table. it is impossible, however, without the vivacity, the tones, the details, and the gestures of lord erskine, to give an adequate idea of this singular scene." amongst the listeners to erskine, whilst he spoke eloquently and with fervor of the virtues of his two leeches, were the duke of norfolk, lord grenville, lord grey, lord holland, lord ellenborough, lord lauderdale, lord henry petty, and thomas grenville. chapter xlvi. wine. from the time when francis bacon attributed a sharp attack of gout to his removal from gray's inn fields to the river side, to a time not many years distant when sir herbert jenner fust[ ] used to be brought into his court in doctors' commons and placed in the judicial seat by two liveried porters, lawyers were not remarkable for abstinence from the pleasures to which our ancestors were indebted for the joint-fixing, picturesque gout that has already become an affair of the past. throughout the long period that lies between charles ii.'s restoration and george iii.'s death, an english judge without a symptom of gout was so exceptional a character that people talked of him as an interesting social curiosity. the merry monarch made clarendon's bedroom his council-chamber when the chancellor was confined to his couch by _podagra_. lord nottingham was so disabled by gout, and what the old physicians were pleased to call a 'perversity of the humors,' that his duties in the house of lords were often discharged by francis north, then chief justice of the common pleas; and though he persevered in attending to the business of his court, a man of less resolution would have altogether succumbed to the agony of his disease and the burden of his infirmities. "i have known him," says roger north, "sit to hear petitions in great pain, and say that his servants had let him out, though he was fitter for his chamber." prudence saved lord guildford from excessive intemperance; but he lived with a freedom that would be remarkable in the present age. chief justice saunders was a confirmed sot, taking nips of brandy with his breakfast, and seldom appearing in public "without a pot of ale at his nose or near him." sir robert wright was notoriously addicted to wine; and george jeffreys drank, as he swore, like a trooper. "my lord," said king charles, in a significant tone, when he gave jeffreys the _blood-stone_ ring, "as it is a hot summer, and you are going the circuit, i desire you will not drink too much." amongst the reeling judges of the restoration, however, there moved one venerable lawyer, who, in an age when moralists hesitated to call drunkenness a vice, was remarkable for sobriety. in his youth, whilst he was indulging with natural ardor in youthful pleasures, chief justice hale was so struck with horror at seeing an intimate friend drop senseless, and apparently lifeless, at a student's drinking-bout, that he made a sudden but enduring resolution to conquer his ebrious propensities, and withdraw himself from the dangerous allurements of ungodly company. falling upon his knees he prayed the almighty to rescue his friend from the jaws of death, and also to strengthen him to keep his newly-formed resolution. he rose an altered man. but in an age when the barbarous usage of toast-drinking was in full force, he felt that he could not be an habitually sober man if he mingled in society, and obeyed a rule which required the man of delicate and excitable nerves to drink as much, bumper for bumper, as the man whose sluggish system could receive a quart of spirits at a sitting and yet scarcely experience a change of sensation. at that time it was customary with prudent men to protect themselves against a pernicious and tyrannous custom, by taking a vow to abstain from toast-drinking, or even from drinking wine at all, for a certain stated period. readers do not need to be reminded how often young pepys was under a vow not to drink; and the device by which the jovial admiralty clerk strengthened an infirm will and defended himself against temptation was frequently employed by right-minded young men of his date. in some cases, instead of _vowing_ not to drink, they _bound_ themselves not to drink within a certain period; two persons, that is to say, agreeing that they would abstain from wine and spirits for a certain period, and each _binding_ himself in case he broke the compact to pay over a certain sum of money to his partner in the bond. young hale saw that to effect a complete reformation of his life it was needful for him to abjure the practice of drinking healths. he therefore vowed _never again_ to drink a health; and he kept his vow. never again did he brim his bumper and drain it at the command of a toast-master, although his abstinence exposed him to much annoyance; and in his old age he thus urged his grandchildren to follow his example--"i will not have you begin or pledge any health, for it is become one of the greatest artifices of drinking, and occasions of quarrelling in the kingdom. if you pledge one health you oblige yourself to pledge another, and a third, and so onwards; and if you pledge as many as will be drunk, you must be debauched and drunk. if they will needs know the reason of your refusal, it is a fair answer, 'that your grandfather that brought you up, from whom, under god, you have the estate you enjoy or expect, left this in command with you, that you should never begin or pledge a health.'" jeffrey's _protégé_, john trevor, liked good wine himself, but emulated the virtuous hale in the pains which he took to place the treacherous drink beyond the reach of others--whenever they showed a desire to drink it at his expense. after his expulsion from the house of commons, sir john trevor was sitting alone over a choice bottle of claret, when his needy kinsman, roderic lloyd, was announced. "you rascal," exclaimed the master of the rolls, springing to his feet, and attacking his footman with furious language, "you have brought my cousin, roderic lloyd, esquire, prothonotary of north wales, marshal to baron price, up my back stairs. you scoundrel, hear ye, i order you to take him this instant down my _back stairs_, and bring him up my _front stairs_." sir john made such a point of showing his visitor this mark of respect, that the young barrister was forced to descend and enter the room by the state staircase; but he saw no reason to think himself honored by his cousin's punctilious courtesy, when on entering the room a second time he looked in vain for the claret bottle. on another occasion sir john trevor's official residence afforded shelter to the same poor relation when the latter was in great mental trouble. "roderic," saith the chronicler, "was returning rather elevated from his club one night, and ran against the pump in chancery lane. conceiving somebody had struck him, he drew and made a lunge at the pump. the sword entered the spout, and the pump, being crazy, fell down. roderic concluded he had killed his man, left, his sword in the pump, and retreated to his old friend's house at the rolls. there he was concealed by the servants for the night. in the morning his honor, having heard the story, came himself to deliver him from his consternation and confinement in the coal-hole." amongst the eighteenth century lawyers there was considerable difference of taste and opinion on questions relating to the use and abuse of wine. though he never, or very seldom, exceeded the limits of sobriety, somers enjoyed a bottle in congenial society; and though wine never betrayed him into reckless hilarity, it gave gentleness and comity to his habitually severe countenance and solemn deportment--if reliance may be placed on swift's couplet-- "by force of wine even scarborough is brave, hall grows more pert, and somers not so grave." a familiar quotation that alludes to murray's early intercourse with the wits warrants an inference that in opening manhood he preferred champagne to every other wine; but as lord mansfield he steadily adhered to claret, though fashion had taken into favor the fuller wine stigmatized as poison by john home's famous epigram-- "bold and erect the caledonian stood; old was his mutton, and his claret good. 'let him drink port,' an english statesman cried: he drunk the poison and his spirit died." unlike his father, who never sinned against moderation in his cups, charles yorke was a deep drinker as well as a gourmand. hardwicke's successor, lord northington, was the first of a line of port-wine-drinking judges that may at the present time be fairly said to have come to an end--although a few reverend fathers of the law yet remain, who drink with relish the methuen drink when age has deprived it of body and strength. until robert henley held the seals, chancellors continued to hold after-dinner sittings in the court of chancery on certain days of the week throughout term. hardwicke, throughout his long official career, sat on the evenings of wednesdays and fridays hearing causes, while men of pleasure were fuddling themselves with fruity vintages. lord northington, however, prevailed on george iii. to let him discontinue these evening attendances in court. "but why," asked the monarch, "do you wish for a change?" "sir," the chancellor answered, with delightful frankness, "i want the change in order that i may finish my bottle of port at my ease; and your majesty, in your parental care for the happiness of your subjects, will, i trust, think this a sufficient reason." of course the king's laughter ended in a favorable answer to the petition for reform, and from that time the chancellor's evening sittings were discontinued. but ere he died, the jovial chancellor paid the penalty which port exacts from all her fervent worshippers, and he suffered the acutest pangs of gout. it is recorded that as he limped from the woolsack to the bar of the house of lords, he once muttered to a young peer, who watched his distress with evident sympathy--"ah, my young friend, if i had known that these legs would one day carry a chancellor, i would have taken better care of them when i was at your age." unto this had come the handsome legs of young counsellor henley, who, in his dancing days, stepped minuets to the enthusiastic admiration of the _belles_ of bath. some light is thrown on the manners of lawyers in the eighteenth century by an order made by the authorities of barnard's inn, who, in november, , named two quarts as the allowance of wine to be given to each mess of four men by two gentlemen on going through the ceremony of 'initiation.' of course, this amount of wine was an 'extra' allowance, in addition to the ale and sherry assigned to members by the regular dietary of the house. even sheridan, who boasted that he could drink any _given_ quantity of wine, would have thought twice before he drank so large a given quantity, in addition to a liberal allowance of stimulant. anyhow, the quantity was fixed--a fact that would have elicited an expression of approval from chief baron thompson, who, loving port wine wisely, though too well, expressed at the same time his concurrence with the words, and his dissent from the opinion of a barrister, who observed--"i hold, my lord, that after a good dinner a certain quantity of wine does no harm." with a smile, the chief baron rejoined--"true, sir; it is the _uncertain_ quantity that does the mischief." the most temperate of the eighteenth-century chancellors was lord camden, who required no more generous beverage than sound malt liquor, as he candidly declared, in a letter to the duke of grafton, wherein he says--"i am, thank god, remarkably well, but your grace must not seduce me into my former intemperance. a plain dish and a draught of porter (which last is indispensable), are the very extent of my luxury." for porter, edward thurlow, in his student days, had high respect and keen relish; but in his mature years, as well as still older age, full-bodied port was his favorite drink, and under its influence were seen to the best advantage those colloquial powers which caused samuel johnson to exclaim--"depend upon it, sir, it is when you come close to a man in conversation that you discover what his real abilities are; to make a speech in a public assembly is a knack. now, i honor thurlow, sir; thurlow is a fine fellow: he fairly puts his mind to yours." of thurlow, when he had mounted the woolsack, johnson also observed--"i would prepare myself for no man in england but lord thurlow. when i am to meet him, i would wish to know a day before." from the many stories told of thurlow and ebriosity, one may be here taken and brought under the reader's notice--not because it has wit or humor to recommend it, but because it presents the chancellor in company with another port-loving lawyer, william pitt, from whose fame, by-the-by, lord stanhope has recently removed the old disfiguring imputations of sottishness. "returning," says sir nathaniel wraxall, a poor authority, but piquant gossip-monger, "by way of frolic, very late at night, on horseback, to wimbledon, from addiscombe, the seat of mr. jenkinson, near croydon, where the party had dined, lord thurlow, the chancellor, pitt, and dundas, found the turnpike gate, situate between tooting and streatham, thrown open. being elevated above their usual prudence, and having no servant near them, they passed through the gate at a brisk pace, without stopping to pay the toll, regardless of the remonstrances and threats of the turnpike man, who running after them, and believing them to belong to some highwaymen who had recently committed some depredation on that road, discharged the contents of his blunderbuss at their backs. happily he did no injury." throughout their long lives the brothers scott were steady, and, according to the rules of the present day, inordinate drinkers of port wine. as a young barrister, john scott could carry more port with decorum than any other man of his inn; and in the days when he is generally supposed to have lived on sprats and table-beer, he seldom passed twenty-four hours without a bottle of his favorite wine. prudence, however, made him careful to avoid intoxication, and when he found that a friendship often betrayed him into what he thought excessive drinking, he withdrew from the dangerous connexion. "i see your friend bowes very often," he wrote in may, , a time when mr. bowes was his most valuable client; "but i dare not dine with him above once in three months, as there is no getting away before midnight; and, indeed, one is sure to be in a condition in which no man would wish to be in the streets at any other season." of the quantities imbibed at these three-monthly dinners, an estimate may be formed from the following story. bringing from oxford to london that fine sense of the merits of port wine which characterized the thorough oxonion of a century since, william scott made it for some years a rule to dine with his brother john on the first day of term at a tavern hard by the temple; and on these occasions the brothers used to make away with bottle after bottle not less to the astonishment than the approval of the waiters who served them. before the decay of his faculties, lord stowell was recalling these terminal dinners to his son-in-law, lord sidmouth, when the latter observed, "you drank some wine together, i dare say?" lord stowell, modestly, "yes, we drank some wine." son-in-law, inquisitively, "two bottles?" lord stowell, quickly putting away the imputation of such abstemiousness, "more than that." son-in-law, smiling, "what, three bottles?" lord stowell, "more." son-in-law, opening his eyes with astonishment, "by jove, sir, you don't mean to say that you took four bottles?" lord stowell, beginning to feel ashamed of himself, "more; i mean to say we had more. now don't ask any more questions." whilst lord stowell, smarting under the domestic misery of which his foolish marriage with the dowager marchioness of sligo was fruitful, sought comfort and forgetfulness in the cellar of the middle temple, lord eldon drained magnums of newcastle port at his own table. populous with wealthy merchants, and surrounded by an opulent aristocracy, newcastle had used the advantages given her by a large export trade with portugal to draw to her cellars such superb port wine as could be found in no other town in the united kingdom; and to the last the tory chancellor used to get his port from the canny capital of northumbria. just three weeks before his death, the veteran lawyer, sitting in his easy-chair and recalling his early triumphs, preluded an account of the great leading case, "akroyd _v._ smithson," by saying to his listener, "come, farrer, help yourself to a glass of newcastle port, and help me to a little." but though he asked for a little, the old earl, according to his wont, drank much before he was raised from his chair and led to his sleeping-room. it is on record, and is moreover supported by unexceptionable evidence, that in his extreme old age, whilst he was completely laid upon the shelf, and almost down to the day of his death, which occurred in his eighty-seventh year, lord eldon never drank less than three pints of port daily with or after his dinner. of eminent lawyers who were steady port-wine drinkers, baron platt--the amiable and popular judge who died in , aged seventy-two years--may be regarded as one of the last. of him it is recorded that in early manhood he was so completely prostrated by severe illness that beholders judged him to be actually dead. standing over his silent body shortly before the arrival of the undertaker, two of his friends concurred in giving utterance to the sentiment: "ah, poor dear fellow, we shall never drink a glass of wine with him again;" when, to their momentary alarm and subsequent delight, the dead man interposed with a faint assumption of jocularity, "but you will though, and a good many too, i hope." when the undertaker called he was sent away a genuinely sorrowful man; and the young lawyer, who was 'not dead yet,' lived to old age and good purpose. [ ] in old sir herbert's later days it was a mere pleasantry, or bold figure of speech to say that his court had risen, for he used to be lifted from his chair and carried bodily from the chamber of justice by two brawny footmen. of course, as soon as the judge was about to be elevated by his bearers, the bar rose; and also as a matter of course the bar continued to stand until the strong porters had conveyed their weighty and venerable burden along the platform behind one of the rows of advocates and out of sight. as the _trio_ worked their laborious way along the platform, there seemed to be some danger that they might blunder and fall through one of the windows into the space behind the court; and at a time when sir herbert and dr. ---- were at open variance, that waspish advocate had on one occasion the bad taste to keep his seat at the rising of the court, and with characteristic malevolence of expression to say to the footmen, "mind, my men, and take care of that judge of yours--or, by jove, you'll pitch him out of the window." it is needless to say that this brutal speech did not raise the speaker in the opinion of the hearers. chapter xlvii. law and literature. at the present time, when three out of every five journalists attached to our chief london newspapers are inns-of-court men; when many of our able and successful advocates are known to ply their pens in organs of periodical literature as regularly as they raise their voices in courts of justice; and when the young templar, who has borne away the first honors of his university, deems himself the object of a compliment on receiving an invitation to contribute to the columns of a leading review or daily journal--it is difficult to believe that strong men are still amongst us who can remember the days when it was the fashion of the bar to disdain law-students who were suspected of 'writing for hire' and barristers who 'reported for the papers.' throughout the opening years of the present century, and even much later, it was almost universally held on the circuits and in westminster hall, that inns-of-court men lowered the dignity of their order by following those literary avocations by which some of the brightest ornaments of the law supported themselves at the outset of their professional careers. notwithstanding this prejudice, a few wearers of the long robe, daring by nature, or rendered bold by necessity, persisted in 'maintaining a connexion with the press, whilst they sought briefs on the circuit, or waited for clients in their chambers. such men as sergeant spankie and lord campbell, as master stephen and mr. justice talfourd, were reporters for the press whilst they kept terms; and no sooner had henry brougham's eloquence charmed the public, than it was whispered that for years his pen, no less ready than his tongue, had found constant employment in organs of political intelligence. but though such men were known to exist, they were regarded as the 'black sheep' of the bar by a great majority of their profession. it is not improbable that this prejudice against gownsmen on the press was palliated by circumstances that no longer exist. when political writers were very generally regarded as dangerous members of society, and when conductors of respectable newspapers were harassed with vexatious prosecutions and heavy punishments for acts of trivial inadvertence, or for purely imaginary offences, the average journalist was in many respects inferior to the average journalist working under the present more favorable circumstances. men of culture, honest purpose, and fine feeling were slow to enrol themselves members of a despised and proscribed fraternity; and in the dearth of educated gentlemen ready to accept literary employment, the task of writing for the public papers too frequently devolved upon very unscrupulous persons, who rendered their calling as odious as themselves. a shackled and persecuted press is always a licentious and venal press; and before legislation endowed english journalism with a certain measure of freedom and security, it was seldom manly and was often corrupt. it is therefore probable that our grandfathers had some show of reason for their dislike of contributors to anonymous literature. at the bar men of unquestionable amiability and enlightenment were often the loudest to express this aversion for their scribbling brethren. it was said that the scribblers were seldom gentlemen in temper; and that they never hesitated to puff themselves in their papers. these considerations so far influenced mr. justice lawrence that, though he was a model of judicial suavity to all other members of the bar, he could never bring himself to be barely civil to advocates known to be 'upon the press.' at lincoln's inn this strong feeling against journalists found vent in a resolution, framed in reference to a particular person, which would have shut out journalists from the society. it had long been understood that no student could be called to the bar _whilst_ he was acting as a reporter in the gallery of either house; but the new decision of the benchers would have destroyed the ancient connexion of the legal profession and literary calling. strange to say this illiberal measure was the work of two benchers who, notwithstanding their patrician descent and associations, were vehement asserters of liberal principles. mr. clifford--'o.p.' clifford--was its proposer and erskine was its seconder. fortunately the person who was the immediate object of its provisions petitioned the house of commons upon the subject, and the consequent debate in the lower house decided the benchers to withdraw from their false position; and since their silent retreat no attempt has been made by any of the four honorable societies to affix an undeserved stigma on the followers of a serviceable art. upon the whole the literary calling gained much from the discreditable action of lincoln's inn; for the speech in which sheridan covered with derision this attempt to brand parliamentary reporters as unfit to associate with members of the bar, and the address in which mr. stephen, with manly reference to his own early experiences, warmly censured the conduct of the society of which he was himself a member, caused many persons to form a new and juster estimate of the working members of the london press. having alluded to dr. johnson and edmund burke, who had both acted as parliamentary reporters, sheridan stated that no less than twenty-three graduates of universities were then engaged as reporters of the proceedings of the house. the close connexion which for centuries has existed between men of law and men of letters is illustrated on the one hand by a long succession of eminent lawyers who have added to the lustre of professional honors the no less bright distinctions of literary achievements or friendships, and on the other hand by the long line of able writers who either enrolled themselves amongst the students of the law, or resided in the inns of court, or cherished with assiduous care the friendly regard of famous judges. indeed, since the days of chancellor de bury, who wrote the 'philobiblon,' there have been few chancellors to whom literature is not in some way indebted; and the few keepers of the seal who neither cared for letters nor cultivated the society of students, are amongst the judges whose names most englishmen would gladly erase from the history of their country. jeffreys and macclesfield represent the unlettered chancellors; more and bacon the lettered. fortescue's 'de laudibus' is a book for every reader. to chancellor warham, erasmus--a scholar not given to distribute praise carelessly--dedicated his 'st. jerom,' with cordial eulogy. wolsey was a patron of letters. more may be said to have revived, if he did not create, the literary taste of his contemporaries, and to have transplanted the novel to english soil. equally diligent as a writer and a collector of books, gardyner spent his happiest moments at his desk, or over the folios of the magnificent library which was destroyed by wyat's insurgents. christopher hatton was a dramatic author. to one person who can describe with any approach to accuracy edward hyde's conduct in the court of chancery, there are twenty who have studied clarendon's 'rebellion.' at the present date hale's books are better known than his judgments, though his conduct towards the witches of bury st. edmunds conferred an unenviable fame on his judicial career. by timely assistance rendered to burnet, lord nottingham did something to atone for his brutality towards milton, whom, at an earlier period of his career, he had declared worthy of a felon's death, for having been cromwell's latin secretary. lord keeper north wrote upon 'music;' and to his brother roger literature is indebted for the best biographies composed by any writer of his period. in his boyhood somers was a poet; in his maturer years the friend of poets. the friend of prior and gay, arbuthnot and pope, lord chancellor harcourt, wrote verses of more than ordinary merit, and alike in periods of official triumph and in times of retirement valued the friendship of men of wit above the many successes of his public career. lord chancellor king, author of 'constitution and discipline of the primitive church,' was john locke's dutiful nephew and favorite companion. king's immediate successor was extolled by pope in the lines, o teach us, talbot! thou'rt unspoil'd by wealth, that secret rare, between the extremes to move, of mad good-nature and of mean self-love. who is it copies talbot's better part, to ease th' oppress'd, and raise the sinking heart? but talbot's fairest eulogy was penned by his son's tutor, alexander thomson--a poet who had no reason to feel gratitude to talbot's official successor. ere he thoroughly resolved to devote himself to law, the cold and formal hardwicke had cherished a feeble ambition for literary distinction; and under its influence he wrote a paper that appeared in the _spectator_. blackstone's entrance at the temple occasioned his metrical 'farewell' to his muse. in his undergraduate days at cambridge lord chancellor charles yorke was a chief contributor to the 'athenian letters,' and it would have been well for him had he in after-life given to letters a portion of the time which he sacrificed to ambition. thurlow's churlishness and overbearing temper are at this date trifling matters in comparison with his friendship for cowper and samuel johnson, and his kindly aid to george crabbe. even more than for the wisdom of his judgments mansfield is remembered for his intimacy with 'the wits,' and his close friendship with that chief of them all, who exclaimed, "how sweet an ovid, murray, was our boast," and in honor of that "sweet ovid" penned the lines, "graced as thou art, with all the power of words, so known, so honored in the house of lords"-- verses deliciously ridiculed by the parodist who wrote, "persuasion tips his tongue whene'er he talks: and he has chambers in the king's bench walks." as an atonement for many defects, alexander wedderburn had one virtue--an honest respect for letters that made him in opening manhood seek the friendship of hume, at a later date solicit a pension for dr. johnson, and after his elevation to the woolsack overwhelm gibbon with hospitable civilities. eldon was an oxford essayist in his young, the compiler of 'the anecdote book' in his old days; and though he cannot be commended for literary tastes, or sympathy with men of letters, he was one of the many great lawyers who found pleasure in the conversation of samuel johnson. unlike his brother, lord stowell clung fast to his literary friendships, as 'dr. scott of the commons' priding himself more on his membership in the literary club than on his standing in the prerogative court; and as lord stowell evincing cordial respect for the successors of reynolds and malone, even when love of money had taken firm hold of his enfeebled mind. archdeacon paley's london residence was in edward law's house in bloomsbury square. in erskine literary ambition was so strong that, not content with the fame brought to him by excellent _vers de société_, he took pen in hand when he resigned the seals, and--more to the delight of his enemies than the satisfaction of his friends--wrote a novel, which neither became, nor deserved to be, permanently successful. with similar zeal and greater ability the literary reputation of the bar has been maintained by lord denman, who was an industrious _littérateur_ whilst he was working his way up at the bar; by sir john taylor coleridge, whose services to the _quarterly review_ are an affair of literary history; by sir thomas noon talfourd, who, having reported in the gallery, lived to lake part in the debates of the house of commons, and who, from the date of his first engagement on the _times_ till the sad morning when "god's finger touched him," while he sat upon the bench, never altogether relinquished those literary pursuits, in which he earned well-merited honor; by lord macaulay, whose connexion with the legal profession is almost lost sight of in the brilliance of his literary renown; by lord campbell, who dreamt of living to wear an ss collar in westminster hall whilst he was merely john campbell the reporter; by lord brougham, who, having instructed our grandfathers with his pen, still remains upon the stage, giving their grandsons wise lessons with his tongue; and by lord romilly, whose services to english literature have won for him the gratitude of scholars. of each generation of writers between the accession of elizabeth and the present time, several of the most conspicuous names are either found on the rolls of the inns, or are closely associated in the minds of students with the life of the law-colleges. shakspeare's plays abound with testimony that he was no stranger in the legal inns, and the rich vein of legal lore and diction that runs through his writings has induced more judicious critics than lord campbell to conjecture that he may at some early time of his career have directed his mind to the study, if not the practice, of the law. amongst elizabethan writers who belonged to inns may be mentioned--george ferrars, william lambarde, sir henry spelman, and that luckless pamphleteer john stubbs, all of whom were members of lincoln's inn; thomas sackville, francis beaumont the younger, and john ferne, of the inner temple; walter raleigh, of the middle temple; francis bacon, philip sidney, george gascoyne, and francis davison, of gray's inn. sir john denham, the poet, became a lincoln's-inn student in ; and francis quarles was a member of the same learned society. john selden entered the inner temple in the second year of james i., where in due course he numbered, amongst his literary contemporaries,--william browne, croke, oulde, thomas gardiner, dynne, edward heywood, john morgan, augustus cæsar, thomas heygate, thomas may, dramatist and translator of lucan's 'pharsalia,' william rough and rymer were members of gray's inn. sir john david and sir simonds d'ewes belonged to the middle temple. massinger's dearest friends lived in the inner temple, of which society george keate, the dramatist, and butler's staunch supporter william longueville, were members. milton passed the most jocund hours of his life in gray's inn, in which college cleveland and the author of 'hudibras' held the meetings of their club. wycherley and congreve, aubrey and narcissus luttrell were inns-of-court men. in later periods we find thomas edwards, the critic; murphy, the dramatic writer; james mackintosh, francis hargrave, bentham, curran, canning, at lincoln's inn. the poet cowper was a barrister of the temple. amongst other templars of the eighteenth century, with whose names the literature of their time is inseparably associated, were henry fielding, henry brooke, oliver goldsmith, and edmund burke. samuel johnson resided both in gray's inn and the temple, and his friend boswell was an advocate of respectable ability as well as the best biographer on the roll of english writers. the foregoing are but a few taken from hundreds of names that illustrate the close union of law and literature in past times. to lengthen the list would but weary the reader; and no pains would make a perfect muster roll of all the literary lawyers and _legal littérateurs_ who either are still upon the stage, or have only lately passed away. in their youth four well-known living novelists--mr. william harrison ainsworth, mr. shirley brooks, mr. charles dickens, and mr. benjamin disraeli--passed some time in solicitors' offices. mr. john oxenford was articled to an attorney. mr. theodore martin resembles the authors of 'the rejected addresses' in being a successful practitioner in the inferior branch of the law. mr. charles henry cooper was a successful solicitor. on turning over the leaves to that useful book, 'men of the time,' the reader finds mention made of the following men of letters and law--sir archibald alison, mr. thomas chisholm anstey, mr. william edmonstone aytoun, mr. philip james bailey, mr. j.n. ball, mr. sergeant peter burke, sir j.b. burke, mr. john hill burton, mr. hans busk, mr. isaac butt, mr. george wingrove cooke, sir e.s. creasy, dr. dasent, mr. john thaddeus delane, mr. w. hepworth dixon, mr. commissioner fonblanque, mr. william forsyth, q.c., mr. edward foss, mr. william carew hazlitt, mr. thomas hughes, mr. leone levi, mr. lawrence oliphant, mr. charles reade, mr. w. stigant, mr. tom taylor, mr. mccullagh torrens, mr. m.f. tupper, dr. travers, mr. samuel warren, and mr. charles weld. some of the gentlemen in this list are not merely nominal barristers, but are practitioners with an abundance of business. amongst those to whom the editor of 'men of the time' draws attention as 'lawyers,' and who either are still rendering or have rendered good service to literature, occur the names of sir william a'beckett, mr. w. adams, dr. anster, sir joseph arnould, sir george bowyer, sir john coleridge, mr. e. w. cox, mr. wilson gray, mr. justice haliburton, mr. thomas lewin, mr. thomas e. may, mr. j.g. phillimore, mr. james fitz james stephen, mr. vernon harcourt, mr. james whiteside. some of the distinguished men mentioned in this survey have already passed to another world since the publication of the last edition of 'men of the time;' but their recorded connexion with literature as well as law no less serves to illustrate an important feature of our social life. it is almost needless to remark that the names of many of our ablest anonymous writers do not appear in 'men of the time.' copyright (c) s. a. reilly our legal heritage king aethelbert - king george iii, a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s.a.reilly@att.net copyright (c) preface this was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase most of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination than a shilling. there were no coins of the denomination of shilling during anglo-saxon times. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters - , and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters - , especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - . epilogue: - appendix: sovereigns of england bibliography - - - chapter - - - - the times: before a.d. - the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. after this hunting and gathering era, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls [small pointed tool for piercing holes in leather, wood, or other soft materials.]. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. - the law - "these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m....frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and shillings to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. . if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. . [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], shillings. . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) . if a man lie with the king's maiden [female servant], let him pay a bot of shillings. . if she be a grinding slave, let him pay a bot of shillings. the third [class of servant] shillings. . let the king's fed esl [woman who serves him food or nurse] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole leod within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three- fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. . if there be feax fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be an injury to the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring] finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered by the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one be gegemed [pregnant], let bot be made with shillings. . if any one be cear wund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with leod gelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to the owner, and afterwards buy [the object of] his will from the owner. . if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with shillings. . if she become gaengang [pregnant], shillings; and shillings to the king. . if a man lie with an esne's wife, her husband still living, let him make twofold bot. . if one esne slay another unoffending, let him pay for him at his full worth. . if an esne's eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne, let him make bot with shillings. . let [compensation for] weg reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him make twofold bot [twice the value of the stolen goods]." - judicial procedure - the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. - - - chapter - - - - the times: - - the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were denarii to the solidus and soldi to the pound of silver. these denominations were taken by england as pennies to the shilling and shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . be not so mad as to tell your friend all your thoughts. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. - the law - alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: " . at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfill. but if he pledge himself to that which is lawful to fulfill, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him..." let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. . love thou not other strange gods above me. . utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. . remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. . honor thy father and thy mother whom the lord hath given thee, that thou mayst be the longer living on earth. . slay thou not. . commit thou not adultery. . steal thou not. . say thou not false witness. . covet thou not thy neighbor's goods unjustly. . make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offense, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of s. to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of s., let it increase twofold of the bot of the man with a wergeld of s. breach of the king's dwelling [breaking and entering] shall be s.; an archbishop's, s.; any other bishop's, and an ealdorman's, s.;. a s. wergeld man's, s.; a s. wergeld man's, s.; and a ceorl's s. if any one plot against the king's life, of himself, or by harboring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the deathblow pay wer and wite. if the slain man had a wergeld of s, let every one who was of the gang pay s. as gangbot. if he had a wergeld of s., let every one pay s. as gangbot. if he had a wergeld of s., let every one pay s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offenses which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishes to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king s. as wite. "if any one steals so that his wife and children don't know it, he shall pay shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with shillings. if he throw her down and do not lie with her, let him make bot with shillings. if he lie with her, let him make bot with shillings. if another man had before lain with her, then let the bot be half that. ... if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of shillings and a wite [fine to the king] of shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays shillings, for the second, shillings, for the third, shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. - judicial procedure - cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." - - - chapter - - - - the times: - - there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken or jurisdiction over their own lands and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. >from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll [like a sales tax] for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox still was worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark was reachable by a bridge. it contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ), obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to ------ faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he as to be treated as a fugitive, and could be slain as for a thief, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay church- scot, a payment in lieu of first fruits of the land, to the pope. - the law - the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his god- mother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundredman, who then called the tithingmen. all these neighbors had to then follow the trail of the cow to its taker, or pay d. to the hundred for the first offense, and d. for the second offense, half to the hundred and half to the lord, and half a pound [ s.] for the third offense, and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundredman. if he did not go with them, he had to pay s. to the king. if a thief was brought into prison, he was to be released after days if he paid his fine of s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the money- smithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." - ) foreigners with wine or blubber fish or other goods and their tolls. foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships. " . if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind ... and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) - judicial procedure - there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremote". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. - - - chapter - - - - the times: - - william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. his rule was strong, resolute, wise, and wary because he had learned to command himself as well as other men. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions; otherwise the entire household was of men. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady also wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne, ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. its functions were largely ceremonial. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court.. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the king, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. also, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. in the nation, there was a total of about , servi [landless laborers], over , borderii, nearly , coatarii and cotseti [held land or houses by service of labor or rent paid in produce], and nearly , villani. this survey resulted in the first national tax system of about s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became as pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. - the law - the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. - judicial procedure - "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of pounds [ marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." - - - chapter - - - - the times: - - king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has been unjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother [william ii (rufus)], but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [ .] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her father], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother [william ii], except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation and for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows with little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft". in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". to be free of something meant to have exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london. they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . and the citizens shall not take part in any [civil] case whatsoever outside the city walls. ) and they shall be exempt from the payment of scot and danegeld and the murder fine. ) and none of them shall take part in trial by combat. ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. ) and all the citizens of london and all their effects [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. ) and the hustings [court] shall sit once a week on monday. ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [ ] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [ ] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. - the law - henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. - judicial procedure - courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. - - - chapter - - - - the times: - - king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices and are simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [ s. d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark [ s. d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom. the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s. [two marks] to have a guild. the shoemakers paid s. [five marks]. in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account." "and they shall have my firm peace." henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." john, when he was an earl and before he became king, granted these liberties to bristol about : ) no burgess may sue or be sued out of bristol. ) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). ) no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of s. ) the hundred court shall be held only once a week. ) no one in any plea may argue his cause in miskenning. ) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. ) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer [e.g. their merchant guilds; all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the older obligation of every freeman to serve in defense of the realm, the fyrd, which was a military draft. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a posse comitatus to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. this was probably the old danegeld. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender [dry food for livestock] of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheepskins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. >from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. the crusades' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. (in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.) in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. - the law - no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. - judicial procedure - henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in , twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), ) the repression of serious crime, and ) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if he passed the ordeal but was ill-famed in the community, he could be banished from the community. the ordeal was abolished by the lateran council of . as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark [ s.] and put her land in pledge in his court and did not want to render the / mark [ s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark. pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of...[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute. therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.] [to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. - - - chapter - - - - the times - - baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. if the hall was on the first floor, the fire might be at a hearth in the middle of the floor. sometimes the lord had his own chamber, with a sleeping loft above it. having a second floor necessitated a fireplace in the wall so the smoke could go up two floors to the roof. other rooms each had a fireplace. often the hall was on the second floor and took up two stories. there was a fireplace on one wall of the bottom story. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. it had been long customary for the groom to endow his bride in public at the church door. this was to keep her and her children if he died first. if dower was not specified, it was understood to be one-third of all lands and tenements. from , priests taught that betrothal and consummation constituted irrevocable marriage. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff had power to raise a posse of armed men to restore order [posse comitatus: power of the county]. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french. latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. . . there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. . . there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden. . . the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. . . the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. . . the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. . . a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: . and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. . and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. . we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / th of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for crossbowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. - the law - the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks [ pounds or s.]; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [shield military service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny, called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. - judicial procedure - the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in , the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in , a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases with short summaries are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is s. d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to actually take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonor s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen... and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men...because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge, geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. ....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. - - - chapter - - - - the times: - - king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all freeholders who held land of the value of at least s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. >from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. the king still exercised the power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster beside the royal palace. london paid its representatives s. per day for their attendance at parliament. >from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking is now a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. >from , statutes were recorded in a statute roll as they were enacted. by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . in , the commons voted a tax of / th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. - the law - edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. young salmon shall not be taken from waters in the spring. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s. [yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath were not recognized for married women. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. (this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple (i.e. with no subdivisions) and land held for life. no grantee or his heirs could alienate the land held in fee tail. the donor could give directions that the land could remain to another person rather than reverting to himself. (interests in remainder or reversion of estates in land replace the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs.) in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. (since kent was nearest the continent, money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. - judicial procedure - the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. murder still meant secret homicide. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safekeeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. >from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. their law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: . hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . william derwin for a trespass, d.; pledge, william sperling. . hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . john palmer is put in seisin of his father's tenement and gives the lord s. d. as entry money. . william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . william frith for subtraction of work, d. john reginald for the same, d. john of senholt, d. william ketelburn, d. . for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following:- -godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. - - - chapter - - - - the times: - - waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business, ceased for two years, interrupted by the plague. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been - d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquish their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. they spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the dais end of the great hall. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. stairwells between floors had narrow and winding steps. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became the first guilds to receive, in - , charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades and sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: . none but a freeman of the city shall make or sell gloves. . no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . no one shall entice away the servant of another. . if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. . no one may sell his goods by candlelight. . any false work found shall be taken before the mayor and aldermen by the wardens. . all things touching the trade within the city between those who are not freemen shall be forfeited. . journeymen shall be paid their present rate of wages. . persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in , the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were not longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery, fraud, was punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholders of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: faithfully serve the people in undertaking their cures, take reasonably from them, faithfully follow their calling, present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary; to be ready, at all times when they should be warned, to attend the maimed or wounded and others, to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. children's sweets included gingerbread and peppermint drops. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and the courts, replacing norman and latin. a will in in which a wealthy citizen arranges for one son to become a attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [ , s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [ s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks [ , s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. william of ockham, an englishman educated at oxford and teaching theology in paris, taught that the primary form of knowledge came from experience gained through the senses and that god might cause a person to think that he has intuitive knowledge of an existent object when there is in fact no such object. most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. paper supplemented parchment, so there were more books. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. marco polo's discoveries on his journey to china were known. the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. >from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france in , the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. (the staple statute remained basically unchanged for the next years.) the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [ s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [ s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which henry was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. - the law - after the black death of these statutes were enacted: high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, [quitclaim deeds] and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. and anyone could bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one was to forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound [or other hound or dog] to hunt, nor shall they use nets or cords or other devices to take [deer, hare, rabbits, nor other gentlemen's game], upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. - judicial procedure - the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by the law of england, or in tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at their will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. the court of the king's bench worked independently of the king. it was exceptional to find the king sitting on his bench. it became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament can change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there is a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in , there was another statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defense of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. - - - chapter - - - - the times: - - this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. and the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster for the crown. great lords fought each other for property and made forcible entries usurping private property. shakespeare's histories deal with this era. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. nobles employed men who had returned from fighting in war to use their fighting skill in local defense. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued in this role because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the standard number of meals was three: breakfast, dinner, and supper. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. the beds were surrounded by heavy draperies to keep out cold drafts. in towns these mansions were entered through a gate through a row of shops on the street. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had a curtained feather bed with pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and 'bankers and dorsers' to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. in london, grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates and turned themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles, aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers, paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. >from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house, to serve him diligently, obey reasonable commands, keep his master's secrets, protect him from injury, abstain from dice, cards and haunting of taverns, not marry, commit no fornication, nor absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year (the number depending on the length of his membership in the company) and sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to take advantage to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular. town miracle plays on leading incidents of the bible and morality plays were popular. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; having to forego wife and family, they had much leisure time for mischief. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe was used for navigation by the stars. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. he was the last true warrior king. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. from about , tunnage on wine and poundage on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift his soul beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kings' business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court and make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. - the law - the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony [penalty of loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat & drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year. [because of scarcity of laborers and other servants of agriculture] no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . lords - gold cloth, gold corses, sable fur, purple silk . knights - velvet, branched satin, ermine fur . esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year - damask, silk, kerchiefs up to s. in value. . esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . servants of agriculture, laborer, servant, country craftsman - none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. cordwainers shall not tan leather [to prevent deceitful tanning]. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . the spouse of a deceased person takes all personal and real chattels of the deceased. . for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . a child born before espousals is a bastard and may not inherit, even if his father is the husband. . if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. . a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. - judicial procedure - the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose, universities, the mayor and sheriffs of london, and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena [under pain of punishment, such as a heavy fine]. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the th century is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. - - - chapter - - - - the times: - - henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. arabic numbers replaced roman numerals, making easy multiplication and division possible. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of 'readings' to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone. there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. cows and sheep given could be leased out to villagers. buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. women and men wore elaborate headdresses. there are guilds of ironmongers, salters, and haberdashers [hats and caps]. on the outer periphery are mud and straw taverns and brothels. houses are beginning to be built outside the walls along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. theologians had to admit that jerusalem was not the center of the world. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in , german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons", instead of at the request of the commons. - the law - royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , he proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. statutes included: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of s. d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or else forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or else forfeit s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit s. the fish shall be packed in the manner prescribed or else forfeit s. d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. - judicial procedure - these changes in the judicial process were made by statute: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. up to , the star chamber heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. other changes in the judicial process were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it came to rarely function as a law court. the humanist intellectual revival also caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. - - - chapter - - - - the times: - - renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the third reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers as students. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: �when sleep puts an end to delirium, it is a hopeful sign.� �when on a starvation diet, the patient should not be allowed to become fatigued.� �old men usually have less illness than young ones, but such as they have last, as a rule, till death.� �pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons.� �when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after , there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being. the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers. these craftsmen then became wage earners of the leathersellers, but others of these craftsmen remained independent. before, the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from a.m. to p.m. in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of current christians, scholastic theologians, priests and monks, superstition, and ritual look absurd. he encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne. his purported reason was to have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state e.g. by executing them for supposed treason. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died. the king replaced wolsey as chancellor with thomas more, after whom he made thomas cromwell chancellor. cromwell, the son of a clothworker/blacksmith/brewer/innkeeper, was a self-taught attorney, arbitrator, merchant, and accountant. like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing the wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . villeinage was now virtually extinct. a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings; their rent became light - less that a shilling an acre. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was return to the subscribers of the capital put in plus an appropriate share of any profits made on the voyage. i.e. the money was divided up. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. the knights had % of the land, the nobles %, the church %, and king %. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the organ and the harp, precursor to the piano, were played. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in , he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. - the law - a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has , s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. french wines may not sell at retail for more than d. per gallon. a barrel maker or cooper may sell a beer barrel for d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. hemp of flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because so many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. offices may not be bought and sold, but only granted by justices of the royal courts. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. as of , it was felony to practice witchcraft, sorcery, enchantment, or conjuration for the purpose ) of obtaining money, or ) to consume any person in his body, members, or goods, or ) to provoke any person to unlawful love or lucre of money, or ) to declare where stolen goods be, or ) to despite christ, or ) to pull down any cross. the year books ceased in . - judicial procedure - by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. - - - chapter - - - - the times: - - queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, and greek and roman history, philosophy, literature, and oratory. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she was so influenced by her reading of cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished dead those whom they hated. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror will be resented by the citizens, who in secret will choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. her credit reputation was so good that she could always get loans at small rates of interest from other countries. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen. elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic was now becoming a petticoat and the over-tunic a dress. their under-tunics became petticoats. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs. except that barons' sons, knights, or men that could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms may have carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters, which replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards, cabinets, buffets from which food could be served, tables, chairs and benches with backs and cushions, sometimes with arms, lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. family portraits decorated some walls, usually in the dining room. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. more than medieval castles and manor houses, mansions were designed with privacy in mind. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. the idea of a long gallery was copied from henry vii and was used for exercise, recreation such as music and dancing, and private conversations. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household, held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. farmers' wives used looms as well as spinning wheels with foot treadles. since animals could now be kept through the winter, salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep farming, which had taken about % of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % was under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in , a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of the city. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher, and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero, the "de officiis", the epistles and orations, and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from : am to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford, and eton with king's college, cambridge. the new charter of westminster ( ) associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were poor scholars or fee-paying members of the college. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise his own course of study with his tutor's permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers and benchers, the latter of whom made the rules. readers gave lectures. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them, erasmus' new testament, "paraphrases", "colloquies", and "adages", sir thomas north's edition of plutarch's "lives of the noble grecians and romans", elyot's "the book named the governor", and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music and singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, tennis, and fenced and had games on horseback. their deer hunting diminished as forests were cut down for agriculture and the deer was viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws. the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, did foster order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. still, the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating however provoked. she considered homilies more instructive and learned that ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated; and they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. but the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. the puritans formed a party in the house of commons. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade. (shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.) they paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, was made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps are installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth, which founded the science of electricity. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields in the first part of elizabeth's reign. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . after exhausting every other alternative, the queen reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. her council had persuaded her that it was impossible for her to live in safety otherwise. francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. mnay london merchants grew rich from using their ships for pirating. in , a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. - the law - although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers, so that agriculture will be advanced and idleness diminished. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. (this was designed to inhibit migration to the towns. it excluded three fourths of the rural population.) no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries. eating fish instead of meat in lent in the springtime remained a tradition.) for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. embezzlement or theft by a servant of his master's goods of s. or more is a felony. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. cut-purses and pick-purses shall not have benefit of clergy. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the price of barrels shall be set by mayors of the towns where they are sold. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. trials of noblemen for treason shall be by their peers. a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. loan contracts for money lent may not be for more than s. for each s. yearly (i.e. % interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) a vagabond or mighty strong beggar [able to work] shall be whipped. any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. tonnage [tax per ton] and poundage [tax per pound] on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [ , s.] marks and one year's imprisonment. the penalty for hearing mass is [ , s.] marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by [ , s.] marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. - judicial procedure - jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. no only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [ , s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) about , london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. - - - chapter - - - - the times: - - due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. these classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about % of the population. their's was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as justices and as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows, his horse is gelded, a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their place. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen were among those who governed the nation. they often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved because of deprivation to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. the law dictating what classes could wear what clothes was difficult to enforce and the last one was in . merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. toothbrushes, made with horsehair, were a new and costly luxury. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs are steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were wainscotted and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors, instead of the former circular stone closed stairwells. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the s, towns were fortified by walled ditch instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in , a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming in to use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears may be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets, and enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widows did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to put in his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers (probably from old age pains) or having cats were further indications of witchery. when the king learned in that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. (still unlawful on sunday were bear and bull baitings and bowlings.) his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar", aesop, terence's roman comic plays, virgil's "aeneid" (the national epic of rome), cicero's "letters" reflecting roman life, sallust's histories showing people and their motives, caesar's "commentaries" on the gallic and civil wars, horace's "epistles" about life and poetry, poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, or "fasti" on roman religious festivals and customs, donatus' grammar book, and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. there were not many girls' boarding schools. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. scholasticism was only starting to give way to modern studies. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law (after seven more years of study), medicine (after seven years), divinity (required more than seven years), and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners (a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen). the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of any colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood�s immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science and religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" ( ). in , the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory imaginary numbers. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force (�friction�). he conceived of the air giving a frictional force to an object moving through the air. >from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion (�inertia�), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in . the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large (and therefore nearer the earth), it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to prison as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in , willliam oughtred invented the slide rule for calculations. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in , he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically was equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in . flax-working machines came into existence. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.] in addition to the two knights from every county (elected by men holding at least forty-shilling freeholds), four representatives from london, and one or two from every other borough (generally elected by the top business families), there was a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. - the law - churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. persons stealing crops from lands or fruit from trees shall be whipped. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. every person shall receive the holy communion in church at least once a year or else forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit s. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. actors profaning god, jesus, or the holy ghost on stage are to be penalized s. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. in it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. as attorney general, coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." - judicial procedure - defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony, plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants.] the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of good-a-bearing and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by , chancery could order injunctions to stop activities. in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". a statute of gave rights for adverse possession. it provided that all writs of formedon [right to land by gift of an estate tail] in descender, formedon in remainder, and formedon in reverter for any manors, lands, tenements, or hereditaments shall be sued within twenty years, for the quieting of men's estates and avoiding of suits. in default thereof they shall be excluded from such entry except children under years, women-covert, non compos mentis, imprisoned or overseas shall have an additional ten years after their disability ceases if the twenty years have expired. the limitation for bringing actions on the case (except slander), account, trespass, replevin, debt, detinue for goods and chattels and the action of trespass, quare clausum fregit [damages for unlawful entry on land], is within years; for trespass of assault, battery, wounding, imprisonment is within years; and for actions upon the case for words is within years. the trial of sir walter ralegh in began a call for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in . - - - chapter - - - - the times: - - the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front were full and made of satin and stiff silk or velvet. only hose of silk was worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. nine-tenths of the people were protestant. religion was a favorite and serious topic of discussion, even among the illiterate. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics, including arithmetic and geometry, poetry (reading, writing, and criticizing), music, including part-music, drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation if related to one's intended profession such as the law, philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. the water carrier was still active and the night transport of sewage necessary. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town planning in london with covent garden fruit and vegetable market with terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only tons on a river. a single horse could haul an -ton wagon on iron rails or on a soft road, but only / of a ton on his back. real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. the poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. he wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus [produce the body] to get released, but to no avail. the old writ had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. for these reasons, the house of commons asserted a preeminence to the house of lords. the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, he extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain. one man used his pitchfork to take back his steer being taken by the bailiff. if distraint were successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction. regard was to be had with regard to days, postures, meats, and vestments. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could chose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after king james ii's queen, who was overtly catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation, law and the liberties of the subject, religion, land and trade, and authority and property. twenty-two pamphlets were published in and , in . in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, or human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, which was done to even those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in , they purged its faculty of royalists. - the law - >from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit s. no butcher may kill or sell any victual on sunday or else forfeit s. d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. as of , a parent sending a child out of the country to go to a catholic school was to forfeit pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in . - judicial procedure - the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined , pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined , pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined , pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who from the pulpit inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in , in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. - - - chapter - - - - the times: - - for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match and dressed in leather doublets and an iron-pot headpiece, or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. >from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of , he proved euclid's nd theorem that the sum of the angles of a triangle is equal to two right angles. before age , he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around , he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see it they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons" father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing, fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry, forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. in a corporation was established to teach the gospel of jesus christ in new england to indians. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of this rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but company trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in to assist his father, who was involved in local administration, in tax computations. around , he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in . fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow, remove their hat (as was the custom when before the king or an earl), or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. the denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to new england. in there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments (consisting of one house), and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews (who had secretly migrated to england to avoid persecution on the continent), but not prelatists (those favoring government of the church by bishops). in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, and prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in , the officers of a new parliament modified the constitution and cromwell approved it, to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists, prelatists, socinians (who denied the divinity of jesus), for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. - the law - after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before a.m. or after p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d.there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit pounds. no deer may be killed or else forfeit pounds, half to the informer and half to the poor. interest may not exceed pounds for a loan of pounds yearly as of . no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit pounds. as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. drunkenness was much punished. husbands were responsible for their wives' oaths and fathers for their daughters'. - judicial procedure - the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in . in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. - - - chapter - - - - times: - - the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before (about / instead of about / ). there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament. (baptists did not believe in an established church.) charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber [saloon] for dining, with sets of lodgings [suites], usually for couples, around it. each lodging had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the closet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as doing laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servant's room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer (paid for a certain number of hours per week or month). the gentleman of the chamber [privy purse] kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. >from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in in essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about , the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: + + + +...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. these are his three laws of motion. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in . the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took seconds for light to travel the diameter of the earth's orbit, he calculated its speed in . in , christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in . robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in , wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in , he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and serving as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment for disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breast- feed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between and were official government sheets. but in the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. >from to , societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in , thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit; running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of s. per year in , with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . the king may not suspend laws or dispense with them without consent of parliament. . the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . the king may not levy money or extend an authorized levy without consent of parliament. . subjects have a right to petition the king without prosecution. . the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . protestants may have arms for their defense as allowed by law. . the elections of members of parliament should be free. . the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death) . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, gunpowder, saw milling, and pottery trades. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. there were no more commercial monopolies. regulated companies declined. the merchant adventurers lost their last monopoly privileges; their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. the stock exchange was incorporated about . the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. new industries for the manufacture of silk, paper, and cutlery were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. only a quarter of towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. >from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and then fell to pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen, flax, hemp, timber, iron, silk (raw, thrown, and woven), wine, brandy, fruit, coffee, chocolate (served as a drink or used in cooking), cauliflower, and oil. >from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by exports and imports increased % by . parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience (freedom of religion) and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in boston. increase was for a time the president of harvard college and participated in obtaining the new charter of massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. - the law - any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were to be released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. the making or selling of fireworks is forbidden or else forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings because the daily importation of such has in effect taken the work from the poor and unemployed of england. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit pounds. by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. (this does not include members of the same household meeting in their home.) anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit s. or the goods respectively. no one may travel or else forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths (or declaration in the case of quakers) and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offense or be imprisoned for months if he couldn't pay. for the second offense, the penalty was pounds or imprisonment for months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of , a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. - judicial procedure - as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide to verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of . if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in . the last bill of attainder, which condemned a person to death, occurred in . the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. - - - chapter - - - - times: - - dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears with hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. the hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. they both had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both men and women sniffed tobacco snuff but only men smoked. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the other had to find a living such as in the church, law, medicine, or trade. they usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, shopkeepers (who now kept their wares inside and lived on the second floor), middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, and customs and excise men. the town people lived in town houses of two stories plus an attic. the last class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate wheaten bread instead of rye bread, much meat and cheese, and drank tea. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. real wages were higher than at any time since the mid- s. the wage earners were well above the subsistence level as long as trade was good. working men could now afford leather shoes and white bread. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer (without board or lodging). in the short harvest time, he could earn s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. they expected their oldest son to take and preserve the family estate. industrialists who had made a fortune for example in steel, cotton, coal mining, porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy such estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone would eat together in the dining room, with the servants at one end of the table. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood wainscoting. there were pictures on them. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. there were pictures on the walls. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace, curtains over the windows looped up at the cornices, one or more mahogany tables, a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails (perhaps with some sort of metal springing), two mahogany sideboards with marble tops, cupboards or shelves or cabinets with displays of china porcelain, a wine-cooler, a dumb-waiter, and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, and silver knives, spoons, and two and three pronged forks, glass saltcellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. servants had no right to free time or to holidays. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the pollution of the thames river grew, but it was still a salmon river. the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. landscaping to reproduce an idealized country scene replaced formal gardens. furniture and landscaped gardens were often done in a chinese style. foreign trees were imported. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs, levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. carriage by sedan-chair was common. gentlemen often had valets. in , buckingham house was bought as a palace for the royal couple. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods (boots, shoes, hats, gloves, harnesses, and saddles), jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, orrerys [model solar systems], and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, of glue, of printers' ink, and of colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers, and the tanners, employed journeymen. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shop keeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitiating: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods, bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from a.m. to p.m., and years later to p.m. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' business transactions, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in ; lloyd's for sale and insurance of ships in ; and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges across the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted here. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: , pounds, to the clerical poor in . there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. (this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods passing underneath.) about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging in from of stores, which had blocked the sunlight, were placed flat in front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. there were special stands for hackney coaches, which were s. d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about - . the proportion of women grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings were taking place in public in church instead of privately. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns [advance announcement so that anyone could give a reason why the marriage should not take place], and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. furniture was still sparse. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shop keeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap (from animal fat) or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically a.m. to p.m. drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow [sheep fat]. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests may by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, may not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread [thrown silk] in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. it doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in , the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about . the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. he confronted the problem of a statute of which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit pounds by a seller, pounds by a wearer, and pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp (for strength) and a cotton weft (for fineness). this statute was so "clarified" in . when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. this was the first all-cotton cloth made in england. in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely imitated. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth were challenging the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages are not to exceed s. per day and their hours of work are to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more shall forfeit pounds. a journeyman receiving more shall be sent to the house of correction for months. justices of the peace may still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work; their masters called them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to a.m. to p.m. in . the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work were to forfeit s. in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver was to more than two apprentices or else forfeit pounds. journeymen weavers entering into combinations shall forfeit s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use in new industries, at easily learned plain work. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman may not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which would then be used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit pounds. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. in , additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats; englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they now taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german ( ) and "institutes of the laws of england" by thomas wood ( ). most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall shall have the sole liberty of printing and reprinting such book for years. others who print or sell or publish such shall forfeit the books and pay one penny for each sheet found in their custody, / to the queen and / to the suer. the printer shall give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong, at small distances performed chemical interactions, and at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in , the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in , he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in , george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in , he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in , he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in , joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he became interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. it was called "respirable air". hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in , benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in , frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in , benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge could be seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitor ( leyden jar) and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. he invented the lightening rod, which was then used to protect houses. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at onetime with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those previously imported. in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in , he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in , invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. silver was plated over copper from . white metal from tin and antimony was used from about . the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in . milk was added to chocolate. the fanmakers were incorporated in . a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade might be increased. in the s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in , claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in , frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in was the last time a monarch touched a person to cure him of a malady such as scrofula. in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. >from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about , john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. although crowds of poor people were generally feared because of their mob potential, these meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid was to go to prison or be put to hard labor in a house of correction for three months without bail. he was also to be whipped in the market place between : and : . if he offended a second time, he was to be transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred was to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to . any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. in , canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built a great factory. in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. promissory notes are assignable and endorsable and the holder may recover against the signer or any endorser as is the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable may be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. (cash was to be used instead.) by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum (strong beer made from malted wheat), cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire (except licensed hackney coaches); silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. (at other times, they could not be imported.) duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or else forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d.- s. d. per ream depending on quality) or imported ( - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property would be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood may be searched for and conscripted into the army. volunteers who enlist were to be paid s. and were not to be taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as it was for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the boy's parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least years of age. master and owners of ships that carried - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or else forfeit pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of the helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in , and a sextant invented in , with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s and now out of date. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that it be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was to be paid. privateers colluding with others to fraudulently take their merchant ships by were to forfeit their ships, with / rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive pounds bounty. any seaman volunteering for the navy was to receive a bounty of pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than s. per month because of the present war. still later, anyone who has run goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich are to receive a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. no war ship may carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot is readily available, a ship's own owner, master, or mate was to pilot ships up the thames river, or else forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship was no longer to be a pilot. there must be at least qualified pilots. the prices of piloting were pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. to preserve navigation, ships are not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flows or runs or else forfeit s.- pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry. each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships are not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this is to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry shall have benefit of salvage. no insurance may be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river may take an apprentice unless he is a housekeeper or has some known place of abode where he may keep such apprentice or else forfeit ten pounds, and if he can't pay, do hard labor at the house of correction for - days. also he may not keep the apprentice bound to him. no apprentice may be entrusted with a vessel until he is if a waterman's son and if is he the son of a landman, and he has had at least two years' experience. none but freemen (i.e. one having served an apprenticeship of seven years) may row or work any vessel for hire or be subject to the same punishment. this is to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. no boat on the thames river may be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such has led to theft of ropes, cables, goods, and stores from the ships. excepted are boats registered at the guilds of trinity and of st. clement, but they must show their owner's name and can only operate in daylight hours. the penalty is forfeiture of the boat. all ships coming from places infected with the plague shall be quarantined and any person leaving a quarantined ship shall return and later forfeit pounds, of which / may go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and was to forfeit pounds. if he did not take his vessel to the quarantine area on notice, he was to forfeit a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. (wolsey had been the last chancellor to rule england; thereafter the chancellor had become more of a judge and less of a statesman.) other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of , a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit pounds. in , since unauthorized persons have intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer shall appoint clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath is that one is a freeman of london, a liveryman of a certain named company, has been so for months, and names his place of abode. the oath for alderman or common council elections is that the voter is a freeman of london and a householder in a named ward paying scot of at least a total of s. and bearing lot. a list of the voters and of persons disallowed is to be given to candidates by the presiding officer. soldiers may not be quartered within miles of a place of election so that the election is kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his book: "political disquisitions". in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there may be corruption of the blood or for misprison of such treason may make his defense by up to two counsel learned in the law, who shall be assigned for that purpose on the application of the person impeached. in , counsel may interrogate witnesses in such cases where testimony of witnesses are not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of the property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. (every township of fifty households had to appoint one to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of , anyone harboring of army or marine deserters in the colonies must forfeit pounds, and persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america shall forfeit pounds because such men have been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted on july , . - the law - trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than pounds ( in ) worth of property (including s. in money in ), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in , the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors (excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds) if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents (but not sell timber) until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of , all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for - months without bail for the first offense, and for - months without bail for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable (by night or by day, whether the owner is present or not, whether there is a break in or not) may not have benefit of clergy. anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of , any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in , making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for years. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit s. any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in , any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit - s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. the previous statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. in was the last execution for witchcraft. by statute of , witchcraft, sorcery, enchantment, and conjuration were abolished as crimes. persons pretending witchcraft, sorcery, enchantment, or conjuration; or telling fortunes; or pretending by occult knowledge to discover the location of stolen goods may be imprisoned for one year without bail and put in the pillory in the market place once in every quarter of such year. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . - judicial procedure - for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. >from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy was available in the american colonies to all who could read and write. it could be used in trials for manslaughter. - - - chapter : epilogue - - - in the time period after , there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in , james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in , iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in ), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in , edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from with passengers), subways, trains ( ), public railway ( , goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in , children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after ), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- pronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in , lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in , married women's property acts beginning : ( . right to sue and be sued, . right to her own earnings, . right to own real and personal property, . right to make contracts . right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in , in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the s; in england allowance of women attorneys in , women to vote in , adultery by a husband to be adjudged as culpable as adultery by a wife in , the rights of a mother over her child to be equal to those of a father in , and the rights of a woman to property to be the same as those of a man in ; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in , probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in , of compurgation in , and of benefit of clergy. in , there were offenses in england with the death penalty, including stealing from a dwelling house to the value of s., stealing from a shop to a value of s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of , church courts could no longer decide cases of perjury; as of , no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the s. in , jurors were to have no knowledge except the evidence accepted at court. in , counsel for a person indicted for high treason could examine and cross- examine witnesses. in , a defendant could see the written record of evidence against him. in , the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husband- wife. - - - appendix: sovereigns of england - - - accession - name - alfred the great edward the elder son of alfred aethelstan son of edward the elder edmund son of edward the elder eadred son of edward the elder eadwig son of edmund edgar son of edmund edward the martyr son of edgar aethelred the unready son of edgar edmund ironside son of aethelred the unready canute harold i harefoot son of canute hardicanute son of canute edward the confessor son of aethelred the unready harold ii william i, the conquerer william ii son of william i henry i (and matilda) son of william i stephen henry ii (and eleanor) grandson of henry i richard i, the lion-hearted son of henry ii john son of henry ii henry iii son of john edward i (and eleanor) son of henry iii edward ii son of edward i edward iii son of edward ii richard ii grandson of edward iii henry iv henry v son of henry iv henry vi son of henry v edward iv edward v son of edward iv richard iii henry vii (and elizabeth) henry viii son of henry vii edward vi son of henry viii mary daughter of henry viii elizabeth i daughter of henry viii james i charles i son of james i oliver cromwell charles ii son of charles i james ii son of charles i william and mary william iii anne granddaughter of james ii george i george ii son of george i george iii son of george ii - - - bibliography - - - . ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol ; . . the laws of the kings of england from edmund to henry i, a.j. robertson, . . the statutes of the realm . statutes at large . a treatise of the lawes of the forest, john manwood, . history of english law; william holdsworth . history of english law, pollack and maitland, . anglo-saxon charters, a. j. robertson, . franchises of the city of london, 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progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w. maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, . a history of the circle, ernest zebrowski, . the world of water, j. gordon cook, . the western intellectual tradition, j. bronowski & mazlish, . human accomplishment, charles murray, . magic, myth and medicine, d.t.atkinson, m.d., . scientists who changed the world, lynn and gray poole, . the new treasury of science, ed. harlow shapley, etc., . food in history, reay tannahill, . home, a short history of an idea, witold rybczynski, . pelican history of england: . roman britain, i.a. richmond, . the beginnings of english society, dorothy whitelock, . english society in the early middle ages, doris stenton, . england in the late middle ages, a.r. myers, . tudor england, s.t. bindoff, . england in the seventeenth century, maurice ashley, the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; 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women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen henry cooper*** credit transcribed from the [ ] w. & h. s. warr edition by david price, ccx @pglaf.org {a slight sketch of my father, when over , taken in court by mr. joseph geldart of norwich: p .jpg} w. & h. s. warr , high holborn a sketch of the life of the late henry cooper, barrister-at-law, of the norfolk circuit; as also, of his father, by his son, william cooper, esq., b.a., oxon., _of lincoln's inn_, _barrister at law_; author of the dramas of "the student of jena," "mokanna," "zopyrus," &c. "meminisse juvat." london: printed and published by w. & h. s. warr, , high holborn. dedication. to mr. sergeant storks. dear mr. sergeant, to you i dedicate this sketch of the life of my late brother, henry cooper; and, for three good reasons--the first, because, you were associated with my brother on circuit, knew him well, and were one of those, who being often opposed to him in court, were best able to appreciate his talents, eloquence, and the general powers of his mind;--my second, because, when young, i have listened often to your eloquence, and been made merry by your wit and humour;--my third, because, you have known all my family, and by one and all are much respected;--and my dear mr. sergeant, with kind regards to yourself, and best wishes to you and yours, believe me, yours very truly, william cooper. , hare court, temple, _december_, . preface. kind reader, in attempting the life of my late brother, who, after struggling for years at the bar in almost obscurity, had, on a sudden, his brilliancy noticed and his great talents acknowledged, and no sooner had he reached that eminence in his profession, when all was made easy before him, than unpitying clolho stept up, and cut his thread of life; i must ask your indulgence, for the reasons you will see, as you proceed in this my life of him, as also, from the very scanty materials i have been able to collect for it. how the first idea of this suggested itself to my mind, i will tell you; a few days ago, i was about to re-publish some dramas, written by me in earlier years, and thinking one of them would scarcely make a volume by itself, the _thought struck me_, on looking over my treasures, and finding some verses of my brother henry in his own hand writing, amidst many youthful rhymes of my own and of my family, _that_ i would string them together, and so swell the work alluded to. to do this i thought it necessary to affix a short heading to each, to particularize the writer, and for this purpose wrote, to head my brother's, a short biographical sketch of him, consisting of about thirty lines, and quitting my house, left it on my way to chambers at my printers, returned home, the labours of the day over,--went to bed, but not to sleep, thought of my late brother, of that i had written of him, pondered over the past anecdotes of his life, that had been often told me, recalled his image to my memory, and amidst airy visions of the past, of my father, earlier days, and of youthful pleasures mixed with pain, fell asleep--but--with a determination. to carry it out,--on the morrow i began this sketch. you must judge how i have performed my self-imposed task, and wishing it may amuse you, and encourage young aspirants who shall chance to read it, not to give way under difficulties, but strenuously to persevere, seeing how much may be achieved by diligence and a determination not to yield, remembering ever the good advice and the useful maxim delivered of old:-- "tu ne cede malis sed contra audacior ito--" "possunt quia posse videntur." i am, yours faithfully, w. cooper. life of henry cooper. the subject of the present memoir, henry cooper, was born at a house in bethel street, in the city of norwich, now well-known as the late residence of alderman hawkes, and where resided for many years his father, charles, now better known as old counsellor cooper, a remarkable man, who, like the late william cobbett, though of humble origin, possessed one of those minds that will and must, as they have ever done from the time of deioces of ecbatana (recorded by herodotus) till now, elevate the possessor and compel the homage, whilst exciting the no small envy of inferior intellects. what education he received was at a small school kept by the rev. john bruckner (a lutheran divine), who died in , and was buried at guist, in norfolk, where french, latin, and the common rudiments of an english education were taught; and where, too, the late william taylor,--perhaps one of the most extraordinary men norwich ever produced, the early and intimate friend of southey, and who was the first, according to lockhart's life of scott, to give that great writer a taste for poetry by his (taylor's) spirited and inimitable translation of burger's well known ballad beginning,-- "at break of day from frightful dreams up started eleanor," was his fellow pupil, and who has told me what a gentle, industrious, and amiable boy he remembered my father (truly, in this instance, the child was father of the man); there he acquired, no doubt, some knowledge, but it was far more to his own self-instruction that he was indebted for the large and varied knowledge he possessed, for, as his brother samuel (his only and younger brother,--he had a sister but she died young) informed my mother that such was his early thirst for knowledge, that he not only repudiated all play, and the sports of boyhood, taught himself greek, and greedily devoured the contents of every book that came within his reach, but would, with the pocket-money given him, purchase candles, and when the family had retired to rest, light one, and sit and read till the dawn of day, when he would creep into bed, and sleep till the hour of call, when he would rise to resume anew his mental exercise. so years past by, and the young and sickly looking boy grew into the youth, when his father, a man of strong intellect, with a great deal of sound common sense, perceiving the bent of his son's mind,--and being a man who had retired early in life from business with a small property, on which he lived in a house at heigham (a hamlet within the city),--at once placed his son charles with one of the most respectable attornies, in large business in norwich, as an articled clerk to the law, where he very soon, by his persevering industry, his assiduity, and the great acuteness shown in every matter entrusted to his care and management, so conciliated the good opinion of his master, who discovered progressively, the evident marks of superior abilities [here, too, he indulged to an excess his insatiable thirst for reading, that he would sit up the greater part of the night for this purpose, to the neglect and injury of his health], that at the termination of his engagement, his conduct was so acceptable, and his services so manifest, and his influence, too, among the clients, was found to be so extensive, that on his obtaining his certificate to practise as an attorney, his principal was glad to offer him a share in the business, and receive him as a partner; the reputation he had already acquired became wide spread, and quickly raised the firm in the estimation of the public, and clients flocked to it, and all would see, if they could, and consult with mr. cooper on their affairs. some years thus passed, when, from some cause or other, a dissolution took place in the partnership, and when, probably from the advice of friends stimulated by his wife's ambition (a miss yarrington, a woman as i have been given to understand, of masculine mind, vast energy, and indomitable spirit, whom her son henry has been often said by those who knew her, to have resembled in more than features, for in face he resembled his mother), he was induced to enter himself at lincoln's inn, which he accordingly did in the year , and is thus entered: "charles cooper, of the city of norwich, eldest son of charles cooper of the same place, merchant, admitted nd of april, ." prior to this, a remarkable incident occurred in his life: he undertook the conduct of a cause of great intricacy and importance for a pauper, a labouring blacksmith. an extensive and valuable landed property, well-known as oby hall, with its extensive demesnes, had been for a long time in abeyance; the property was estimated at that period, at not less than , pounds; on failure of male issue, the descendants on the female side put in their claim, among whom the blacksmith stood foremost; he came, consulted with my father on his claim, who became after a time, convinced of the solidity of his title; and after examining it with indefatigable assiduity, he at length, after much entreaty, undertook to carry his cause through every court, were it necessary, upon certain conditions; the conditions were, that if my father succeeded in gaining the cause, in consideration of taking upon himself all the risk, expenses, and labour, he should enjoy the estate; whilst the claimant, having no relations but the most distant, if any, was to receive an annuity for life of pounds. after almost insurmountable difficulties, great expense, and consumption of time and labour, the long anticipated time arrived when the trial was to decide the question of such grave moment to the parties concerned: lord erskine came down to norwich specially retained for the claimant (the origin, i believe of his after intimacy with henry), the case came on for trial,--was fought on both sides with all the ability and ingenuity such a cause demanded (i forget the name of the opposing counsel), the claimant's title was confirmed, and the estate gained. the claimant lived but a little more than a year or two after to receive his annuity, to him absolute wealth; and he died, i have heard, expressing to the last, his gratitude to (as he styled my father) his protector. unfortunately, coming into the possession of the estate, my father must turn farmer, and like him, i have before compared him to, and i have often thought since reading the works of cobbett, that there was a similarity in their thoughts on many subjects; he soon began to farm at a fearful loss (for to be a gainful farmer, so farmers hold, or rather they did then, a man should properly be trained to it from his youth), he was forced to trust to others to do what he should himself have done, and being still occupied in his professional pursuits at norwich, his visits to the hall and the estate were but occasional, and the eye of the master was but too often absent; his family, however, resided there, consisting of his wife and his four children, charles, henry, harriet, and alfred, and there his affections were centred, so that it cannot be wondered at, that with a divided duty, and the course pursued, ere many years, but i am forestalling, the estate soon became involved, and eventually he was compelled to part with it at a loss, or rather with no gain, for at the time of its sale, which happened at a period during the long war, land fell all of a sudden greatly in value, and the seller was glad to experience the truth of the old saying-- "when house and land and all are spent, then learning is most excellent." this sale, however, did not occur till some years after the death of his first wife, and when he had married his second, a miss rose white, my mother, and by whom he had several children, seven only living to maturity, all of whom, i being the eldest, having survived him. his first family, with the exception of his daughter, who died a few years ago, having all died previous to the decease of their father. after having pursued his studies with his accustomed assiduity, in chambers he had taken in stone buildings, and eaten his terms, he was called to the bar on the th of june, in the year . (for these several dates i am indebted to the kindness of mr. doyle, the greatly respected steward of lincoln's inn.) when, having resided a few terms in london, he hastily left the metropolis--the true and only sphere for the full development of extensive legal knowledge and great abilities, such as his,--to reside and practise as a provincial barrister in his native city; where, from his previous reputation, not only as a lawyer well versed in common law, with great knowledge in the practical parts of it, but as a most skilful conveyancer, and great real property lawyer, with a deep knowledge of all its intricacies and moot points, he, at once, obtained considerable practice, and a fine income, which, i believe, by present provincial counsel would be regarded rather as a fiction than reality. he was, moreover, a fluent speaker, with diction pure, and most grammatical. i ought, here, perhaps, to mention what will seem strange to the present generation, that i have often heard my father say, that the first book he began to study law from was "wood's institutes," a book that "the commentaries of blackstone," rendering the study of the law far more intelligible and easy to the student, has long completely superseded. in norwich he continued to reside up to his death, where he was ever applied to by every attorney, without exception, far and near, if any very difficult point of law arose; and, till within some few years prior to his death, which happened on the st of july, , when age as, is usual, though it kindly spared the vigour of his intellect, yet brought with it its physical weakness and ailments, he was employed as leading counsel in many important causes, where legal knowledge and acumen was required; and, in the courts, from the high reputation he had acquired, he ever commanded the ear of the judges, and the respect of his brethren at the bar. he had the joy, too, to live to see his son henry rising fast to eminence in the same profession, though the after pang and anguish to sorrow for his death; and he grieved for him in heart, though not his youngest, as did jacob at the imagined loss of his favourite, and, in my opinion, never did he quite get over it; he not only loved, but was proud of him. the latter years of him, whose life i have thus briefly sketched, were past at his small country residence, situated at lakenham, where his second wife, who survived him, my mother, now seventy-four, still resides, a hamlet of and situate two miles from norwich, where he spent the chief of his time, of that he could spare from the city where he practised, till up to the last twelve months of his life, when in his eighty-fourth year he expired, worn out with past exertion and years, and was, as chief coroner and magistrate of the close and its precincts, under the jurisdiction of the dean and chapter, buried within the cloisters of the cathedral. by his family, from his sweetness of disposition, kindness of heart, and amiability of temper, he was tenderly beloved and regretted, and still whenever recalled to memory in the quietude of the chamber the eye will ever be moistened by a tear, and the heart kindle at the recollection; and by many others he was and will be yet greatly missed; the poor and struggling literary man he would encourage not only with praise, but with his purse, and, that, the poor and needy had ever open to them, and his advice besides gratuitously, whenever required (and this might be confirmed by hundreds still living "in the once ancient city," as a certain wise alderman of yore styled it), and to their affairs he would give as much attention as to the richest client; his private memoranda alone, after death, told his good deeds, for he strictly adhered to the beautiful doctrine laid down by the great teacher, "but when thou doest alms, let not thy left hand know what thy right hand doeth,"--"_quando ullum invenies parem_?" of his first family, charles, the eldest son, was intended for the bar, and was entered at lincoln's inn, but from the natural sensitiveness of his disposition he never kept his terms, and soon gave up all thoughts of the profession; he lingered at home, a westminster scholar, a man of extensive reading, and of great intelligence [as i have been informed, for i was much too young fully to appreciate him], till after many years, on henry's quitting bermudas, he became the secretary to sir james cockburn, in which employment he continued some years, and only returned when sir james ceased to be the governor. he then became a kind of superior clerk in the marine office then held in spring gardens, and subsequently died at the age of about forty-five or forty-eight of consumption, a complaint of the mother's family. alfred went into the army as an ensign, was at the battle of waterloo, was wounded there, was ordered and went subsequently to india with his regiment, the th foot, where, years after, just as he had obtained a sick leave to return home, he was shot at dinapoor, whilst reposing on his sofa, thinking probably, or dreaming of home and its affections, by a drunken sepoy, mistaking him (in his mad excitement) for his servant, who had just previously refused him drink; the occurrence caused, necessarily, great excitement and much conversation at the time, the man was caught and hanged--a satisfaction to justice, but a wretched consolation to his family, by whom, as the youngest, and amiable as he was gentle, he was most fondly loved. his father and sister, i believe, were never made acquainted with the true cause of his death. a letter of henry's relating, though indistinctly, for evident reasons, to the sad occurrence, will be placed before the reader. harriet, as i have said, the only sister (who married a dr. leath, a physician in the army, who resides still at bayswater) died not very long ago, leaving no issue. having given a sketch, which i think and hope will have interested the reader of him, from whom he sprung, whose life i am about to delineate. i will now proceed to depict the life of the son, with the simple remark that i have undertaken a task of no slight difficulty (and much such an one as that of the poor jews, who, under their hard taskmasters in egypt, were set to make bricks without straw), with very slight materials to describe the life of one who died when i was sixteen, and whom i loved from his unvaried kindness to me, of the life of one who, had he lived, would have had a far abler biographer. henry, in early life, took a propensity to and entered the navy, and was a midshipman in the battle of the nile, but soon after, disliking the service, quitted the profession. his education, when he returned from sea, was, through indulgence, neglected: and he passed most of his time at oby hall, in norfolk, the then residence of his father, and distant about eight miles from yarmouth, in shooting, fishing, and driving a tandem-cart about the country, built of unusual height; and an anecdote is related of him, that, after driving it awhile, he went to mr. clements, the builder at norwich, and said, "well, clements, you have built a machine to surprise all the world, and i am come to surprise you by paying you for it." and to show his early quick perception, ready reply, wilfulness, and precocity, i must here relate two well-attested anecdotes: the first, when quite a child, and at his lessons in the nursery, on his mother's running up to dispel the noise and disturbance he was making, she exclaimed in anger, after in some measure correcting him, "why, sir, if you go on in this manner you'll turn the house out of the windows," the young gentleman, looking roguishly at his mother, responded, "how can i do that, ma, for the house is bigger than the windows?" this of course dissipated all anger, and brought a smile to the mother's face; silence, however, was restored and study resumed. the other, when he was about eleven or twelve years of age, a poor soldier, who had been kind to him, assisting him in his fishing, boating, &c., and who was at that time cleaning harness for my brother in the stable, was arrested by an escort of soldiers, who suddenly came to apprehend and convey him, for some alleged offence, to the head quarters at yarmouth; without saying a word or leaving a message behind him, young henry started off with his friend and the soldiers, telling the captive, "never to care, for he would be his advocate." he was, after some time had elapsed, missed; search was made for him in every direction till night came on, but no traces of his whereabouts could be discovered, and, with fearful anxiety, as i have heard my father often say, all, at last, worn out and weary with the fruitless search, retired to bed, but not to rest; care brooded over their pillows and dispelled sleep. morning, at last, came, but with it no tidings of henry; and, when alarm had reached its height, in ran the servant lad, in breathless haste, exclaiming, "master henry is found," and soon after he was seen, being borne in triumph on a soldier's back, with others following, coming up the lawn. all were delighted to see the lost one safe, and, to delight was added astonishment, on a soldier putting into his father's hand a letter, which was quickly opened and read, and which came from the commanding officer. i regret that letter is lost; it spoke, i have often heard my father and mother relate, in the highest terms of the youngster, and warmly congratulating the former on the possession of such a son, so noble in bearing, so bold, and so talented; adding, that he had pleaded the soldier's case so well, that he had, so young an advocate as he was, obtained the acquittal of his client. as he grew up in years he was the pride and terror of the little farmers of the neighbourhood,--the first from his ready wit, playful, and genial disposition, which he ever retained; the latter from the practical jokes he was constantly in the habit of playing on them, many of which are remembered and spoken of at, and around oby, up to the present day: and he had the love of all, for, if they wanted game, or any kindness done them, they had only to ask and have. but midst this he read, and he lacked not mental food to feed on, as his father possessed a large and well-stocked library. henry's reading, however, was necessarily desultory and discursive, but such the retention of his memory, that he forgot nothing he had once conned; as an instance of this i must relate an anecdote, often told of him by mr. jay, an attorney at norwich, still living, and who was an excellent client, and a great admirer of my brother, that soon after large business flowed in upon him, and he went into court with a bag full of briefs; to his mr. jay's utter astonishment, after a case had been called on, in which he was the attorney, and the several witnesses had been called, examined, and the cause gained, my brother, who had led it, turned round, and said, "there jay, i have won your cause, but i will be hanged if i know where your brief is; i read it, but somehow lost it." he, of course, used blank paper for his notes. his perception, too, was so acute, his imagination so vivid, and his memory so retentive, that he could at once, and readily apply the knowledge so widely gleaned to the subject under discussion, that they who were ignorant of his previous mental instruction, would have imagined that he had, in earlier years, been the lean and diligent student, who had wasted the midnight oil in meditation and deep research. after an interval of years, he became a member of lincoln's inn, when in due course of time he was proposed by the late mr. justice, then james allan parke, esquire, and called to the bar, may th, . soon after his call, he accompanied sir james cockburn, who had been just appointed governor of the bermudas, as his secretary, and after a short period, on his arrival there, was made attorney general, the duties of which office he for some years performed to the entire satisfaction of the governor. his letters thence, i have understood, contained beautiful and vivid descriptions of "that happy island where huge lemons grow" [he was an admirer of scenery and nature], and that the wit, graphic portraitures of the men in office on the island, the general chit chat, scandle and fun, intermixed with politics, occasional rhymes, &c., put the reader [since dead] of a few of them, in mind of the letters of lord byron. after his return home, he took chambers in fig tree or elm court, in the temple, read and awaited clients, and went the norfolk circuit; but, alas! few profitable knocks came to his door, and the circuit yielded rather expense than profit; but on he went struggling and struggling, till at last his talents were acknowledged; and the four years preceding his death, he was an eminent leader, and engaged in almost every cause throughout his circuit, and rapidly gaining a reputation in london from "the very eloquent, bold, and honest style of his defence," for mary ann carlile, who was prosecuted, by what was then styled the constitutional association, for publishing a libel upon the government, and the constitution of this country. the trial ended after a brilliant speech of the defendant's counsel, full of argument, eloquence, and ability, in the dismissal of the jury, after being locked up all night; the counsel for the prosecution, the late mr. baron gurney, consenting to their discharge. the report of the trial, and henry cooper's speech in full, was printed and published by the notorious richard carlile, who then kept a shop in fleet street. at the early age of forty my brother died, and he was then looked on by the profession, as a man, who, had he lived, must have achieved the highest honours in it. he was an ardent admirer of, and some of his friends were pleased to say, a close imitator of the oratory of lord erskine, with whom, till he died, he was on terms of the greatest intimacy. in fact he was writing his life for publication, by the express desire of erskine himself, when death staid the pen. alas! but a few pages of it were written, and those in the rough, i will, however, lay them, ere i have done, before the reader. henry, the last four years of his going circuit, and when his abilities were acknowledged, was sometimes opposed to his father, to the no small pleasure and amusement of the norwich people, who as greatly respected the legal ability of the one, as they admired the eloquence of the other; and it was often a source of half suppressed laughter in that portion of the court set aside for the public to hear "my learned friend" banded from one to the other by the two athlete--father and son--the one as powerful from his tact, energy, and fervid eloquence, as the other from his legal knowledge and great acumen, and who was often the victor, for that knowledge, deep and extensive gave the father a superiority on those points of a case, in which law and fact were intermingled, and which were apt from henry's comparative previous little business and short practice as a leader to escape his attention, or when patent rendered him less capable effectually to grapple with the legal and knotty difficulty, for he had never had the advantage of a pleader's chambers; nor let it be thought in those days that there were no giants to contend with--sergeants blosset, frere, and storks, messrs. plumptre, eagle, robinson, prime, and others of note, with biggs andrews, now q.c., and george raymond, author of the "elliston papers," as juniors were on the circuit, all of whom have long since been dead, with the exception of mr. sergeant storks and the four last named. and here i cannot do better than insert a paragraph signed j. s., which appeared in the _times_, i think in or about the years or ; i copy from the paragraph cut out from the paper, and at the time pasted in an album, to which the date was omitted to be attached. the paragraph was headed, "the late henry cooper:"-- "to most of our legal readers, we feel convinced, that this week's sketch of the late henry cooper, the friend companion and intended biographer of the late lord erskine, will prove highly acceptable. the unexpected and melancholy event which deprived the bar of one of its most promising ornaments, and cast a shade over the gay and talented circle in which he moved, must be fresh within the memory of our readers. as yet no memoir, no frail tribute to stamp even a fleeting remembrance of his learning, professional fame, or liberal principles has appeared, and while worthless rank and heartlessness have been perpetuated by marble and the prostituted energies of literature, genius, talent, and honor, have been left to the obscurity of the grave; not one of those who shared his gay and mirthful hours, who listened enraptured to his eloquence and flashes of wit, which as hamlet says 'were won't to set the table in a roar,' have endeavoured by giving to the world his literary labours, or even a sketch of his life, to preserve his memory from oblivion. henry cooper was the son of an eminent counsellor of norwich, a gentleman of powerful mind, whose legal knowledge has rendered him one of the first consulting men of the day. even at his present advanced age of near eighty, he may be seen early of a morning taking his accustomed walk, or if the weather be too severe for exercise, found in his library surrounded by his books and papers. raised by his own perseverance, and in a great measure self-educated, it is not to be wondered at if from such a father, the subject of our sketch, acquired those habits of perseverance and industry which enabled him by system to attain knowledge and fame in his profession. upon being called to the bar his convivial powers and talent for conversation introduced him to erskine, who found so much pleasure in his society, that they became not mere friends, but inseparable companions, and plunged together in the gay round of pleasure, which the world too temptingly presents to men whose minds enable them to watch its interests and guide the machine by which society is regulated. to all who knew him, and the thoughtless life he led, it was a matter of surprise how and when he found time to attend to the numerous cases of his clients, for his field of action soon became extended; yet we will venture to pronounce and feel confident of being borne out by those who knew him, that in no one instance did the cause of the party he advocated suffer. in the court he appeared as well acquainted with the words of his brief, as if it had been for months the object of his most serious attention; not a thread or a link of evidence escaped him, and so persuasive was his manner, so argumentive his style of language, that the jury frequently received the impressions he wished to convey, and their feelings generally, if not their judgment, went in favour of his client. he used, on some occasions, to plead in the norfolk courts, and we have frequently seen him opposed to his father as a special pleader. the old gentlemen, strong in the possession of his youthful intellect, which time even to the present hour has failed to rob him of, was perhaps less assailable by his pleasing manner and florid speech than any of his brothers of the bar, and his ejaculations not always of the most complimentary nature, were sometimes loud and frequent. we have seen the son on such occasions always the first to smile at his father's petulance, and the last to express any sense of the impropriety of the interruption. we have seen the old gentleman, in the midst of his son's argument, write to the opposing counsel suggesting authorities and giving references and precedents against him, all with the most perfect good humour on both sides; and the greatest triumph he could boast was to defeat his son upon a point of law: on such occasions he would put his hands behind his back, and moving round with a chuckle, exclaim, "something to learn yet, harry!" the father's delight and pride in his superior legal knowledge over his son, became at last a standing joke with the barristers of the court. the death of lord erskine blighted henry cooper's hopes to a seat in parliament, where his eloquence and sarcasm would have made him powerful as an ally, and feared as an antagonist; liberal in his opinions to the present exclusive system of the church, he was a decided enemy, and a thorough reformer in the state. his services at a crisis like the present, would have been of incalculable benefit to his country. from the period of the loss of his friend, till his own untimely end, he devoted himself more than he had ever before, to literary pursuits and the labours of his profession. a life of lord erskine was nearly arranged for the press at the time of his decease, and it is to be regretted that as yet his labours have not been given, imperfect as they are, to the world; no one could have had better opportunities or have been better calculated for the task; alike the counsellor in his difficulties, the companion of his mirthful hours, the springs of action, the feelings of his breast, must have appeared unveiled before him; death, however, prevented the completion of his task and removed him too early from the world his talents ornamented." i had forgotten to say, that on his return from bermudas he became and continued very intimate with the cockburn family, and often prophesied the future success of the late attorney general, now chief justice of the court of common pleas, then young alexander cockburn; and often has my brother said to me, then about sixteen, when speaking of the above family, "rely upon it, billy, young alexander, if he enter the profession, will do great things in it; he is a remarkably clever, energetic, and talented young man." henry had much of the restlessness and irritability, the usual accompaniments of a high order of talent, with great earnestness in diction and action. ere i proceed further; the reader will, perhaps, be pleased with a likeness of the man. i should say, in height, he was about five-feet eleven-inches; of spare and sinewy frame, with an elastic tread, that those who knew him, and seeing him in the distance, might truly say, as ulysses of diomede in shakspeare's play of "troilus and cressida," "'tis he, i ken the manner of his gait; that spirit of his in aspiration lifts him from the earth." and often have i heard the late mr. alderson (the father of the present judge), who travelled with my father, circuit and sessions as a provincial barrister, more than thirty years, and who was resident at norwich, say,--"that henry always put him more in mind of a spirit, that a man of flesh and blood;" his eye dark, like that of edmund kean's, the great actor, showed every emotion of the soul, now fiery with anger, now glazed with thought, and anon, melting into softness; his head small, and finely rounded, and covered with thick clustering curls of black crispy hair, was such as sculptors have ever loved to give the youthful antinous; his forehead retreating was characteristic, as lavater says, "of genius;" his nose was slightly arched in the centre and slightly fleshy near the nostrils; his face oval, with a well defined chin and a mouth plain, but full of energy and expression, and similar to sterne's, the contour, of whose face i always thought my brother's much resembled. i have thus given, to please the lover of physiognomy, "a shadow portrait," not "a myall's photograph," which i hope will not only satisfy the physiognomist, but which i think they, who but even slightly remember henry cooper, have but to place before the tablet of their memory and view the shade cast from it with their "mind's eye" to at once recall and recognize the original. i have thus sketched his likeness, as i regret to say, thus only can he be now known, or viewed by those who were unacquainted with him living, as no portrait of him is extant, he dying young, and for years previous struggling to succeed in a profession where the "battle is not always to the strong," though in the long run the best man often succeeds, as with few exceptions, perhaps, the long race, barring accidents, is usually won by the best horse. he left no writings behind him save a few letters, beautifully expressed, but mostly relating to family matters, and, therefore, uninteresting to the general reader, with the exception of five or six preserved by my mother, which i will give the reader ere i have ended this biographical sketch; and the few friends with whom he corresponded, and to whom, occasionally, he showed, and gave the productions of his pen, though they considered him a man of considerable talent, set such small value on his effusions, that, however, pleased at the time they might have been with them they were put aside forgotten and most probably destroyed, and what he himself chanced to write and was pleased with for the instant, was, from the natural carelessness of his disposition, hastily cast aside, and, no doubt, often burnt with the waste paper of his chambers; so that every endeavour i have made to possess even a shred of these scraps, has been futile. all i have been able to gather are the few letters alluded to, with a few poetical lines which will be given to the reader; and, as we often judge of character from trifles, he must, from the slight sketch i have given, and the small crumbs i have been able to collect, form a judgment of him i have endeavoured to describe. he had all but reached the height of his profession, when he was taken away, no doubt for a wise purpose, to the deep and lasting regret of those who not only fondly loved him, but who had begun to take, and no wonder, a warm pride in the object of their affections. he died on september th, , having been attacked some days previous by a severe attack of diarrhoea, which, by some fatal mischance, was mistaken by the surgeons who attended him, for brain fever; he was, consequently, bled, and drastic medicines were administered, which must have hastened if they did not cause his death, which happened at the house of a friend of his, by the name of hill, at chelsea, where he was buried, but his body was afterwards removed by his sister and deposited where it now lies, near his father's in the cloisters of norwich cathedral. i will now lay before the reader the few letters i possess. by the letters of an ingenuous writer, it is said, you can gain a clearer insight into his character, disposition, and mental powers, than by long association or familiar discourse; these letters have been kindly given me by my mother, with whom henry constantly corresponded, and whom he always treated with marked respect and affection, which was fully reciprocated. they were addressed to her at norwich, where she with my father resided, and the first bears date, _london_, _rd_ _nov._ . "my dear madam, "and it came to pass that when they emptied their sacks, lo! ev'ry man's money was in the mouth of his sack." i have had the same measure from you which joseph's liberality heaped on his brethren; and if you will but believe that my proposal to you, to be allowed to be a purchaser of half the preserved raspberry, was not a covert mode of begging it as a gift; i thank you without any regret, and am very much obliged to you. i thank you, too, very much for the pheasant which flew into the window of the mail coach, and startled me in st. stephen's street. george, who is a good lad, had put on his best legs, and soon overtaking the mail, threw it in '_sans ceremonie_.' it was a pleasant disturbance from no very pleasant reverie, which my mind set out on the moment the coach set out from the inn; and which would, but for this agreeable interruption, have lasted me at least as long as the first stage. for the rest of the good things which you gave me while i was in norwich, and sent me laden away with, i must thank you _en masse_; for to thank you one by one for them, would force me to write a long letter, which i have not the least intention in the world of doing. i was outside the mail, and for a long way the only passenger. we learned at newmarket, that the coachman, who drove the coach, which was overturned the preceding night, lay very much hurt. his viscera are bruised, and his only chance of life is in cool veins well emptied by the lancet. 'tis right that he on whose care the safety of others depends should be most prominently exposed to the danger of ill conduct or neglect; i wish heartily that this liability could be transferred from those who sit on the coach box, to those who sit in the cabinet and hold the reins of the hard driven state! we should then have had more peace and less taxes. ask mr. samuel cooper [a great liberal and brother of my father] if we should not? at chesterford your friend, mr. smith, the representative for norwich, took the mail; and after a nap, talked very unrestrainedly with me on the present state of france, on buonaparte, the criminal law, and the wisdom of the justices at sessions. i was determined--like horace's whetstone, which can sharpen other things, though blunt itself, to put an edge on him--to say something deep and decisive on some of the subjects, but i got nothing from him but working-day talk. perhaps (like the character with the greek name in the _rambler_, who tells his guest, showing him his fine things, that they were only brought into service when persons of consequence visited him) he disdained to pull out his best to me, yet i rather judge that he is only clever to the party at norwich; and as oberon, though but six inches high, is yet tall for a fairy, he is a great apollo to the blue and whites [the colours of the liberal party at norwich]. for corroboration of any opinion of theirs, i should always, like the recorder of london, think it right to ask the cook. there's my letter, a type of the miracle of the creation and the lie to the great epicurean maxim, that 'nothing can be made out of nothing;' for as one of those, that, as the song runs, 'none can love like,' would exclaim, 'by jasus, i had not a word to say, and yet i have spoke three whole pages!' my duty to my father, and if you please, my best regards to mrs. watson [my mother's sister], on condition she has no more hysterics; and that is, as she pleases, more than perhaps she is aware of. she is not naturally melancholy, and may soon accustom her mind to like hope better than remembrance. my best love to harriet [his sister], i should, as i promised her, have written to her if i had not written to you, but one letter will serve both; pray assure her how grateful i am to her for all her anxious care and attention to me; i will not even allow that charles [his eldest brother, who was then the secretary to sir james cockburn at bermudas] loves her more than i, or esteems her more, or will be more glad (as i told him in my letter) than i was to see that she was better in health than she had been for years; 'twill make him happy indeed, for the possibility of losing her is alarming to him, and if she were to die, he would be most inconsolable; yet his grief would not be more than mine, nor would he be more ready to exclaim,-- 'i, nunc; et, numina non posse nega' which, as you are a lady, i translate for you, 'go now and say, that angels cannot die.' but you must not read this to her, for she will absurdly say 'tis flattery, as if i could have any motive to flatter her. my love to will [meaning myself]. he is so much improved as to be an engaging boy, and i begin to like him very much. i am, dear madam, yours very faithfully, henry cooper. p.s.--if mr. boardman [an old friend of his] should call, pray remember me most particularly to him. he has long behaved to me with the affection of a brother. he has even, in no few instances, preferred my interests to his own. i am most deeply obliged to him, and i like to tell people of it." the next letter bears date,-- _london_, _st_ _dec._ . to the same,-- "i send you the only coin i have, my very warm thanks for one of the finest and best turkeys that entered the metropolis to be devoured in celebration and honour of christmas. a christian of the utmost degree of faith, that is as great as you ladies place in physicians, who devoured with a devout and religious pique, could not have eaten more or with more pleasure than i, though i sat down with no other zeal than an hungry appetite, and little better than a mere heathen stomach. when i reflected that you good people at norwich were rioting on just such a dinner (upon my honour), i could not help blushing for your preposterous consciences, that, could expect to enjoy so much pleasure in this world, and be saved in the next too. 'tis well for me that no one offered to bet with me, that the pheasants did not come from you; but, i pray, do not think of returning me the thanks, which i paid for them. they are all due, and a vast sum more on the old account, though you, like a liberal creditor, may have no idea of urging the payment of the balance against me, and i beg they may be carried to it. i had almost forgotten to add alfred's thanks to mine for the turkey [he was the youngest brother, who was an ensign in the th foot, and had been wounded in the recent battle]. he was here in time, and made a dinner that contrasts rather vividly with his first meal after the battle of waterloo, on a slice of old cow that they shot with their muskets, and tore to pieces, without giving themselves a moment's pause to reflect whether the bramin's might not be the true religion. but i must not anticipate any part of his narrative to you, and harriet, as to another dido and anna, of all he has seen, done, and suffered, throughout which he has been, like the french poets (grissets) famous parrot, _quite as unfortunate_ as aeneas, and a great deal more pious. in other respects, indeed, you'll not find him like that bird; he'll not give you his adventures with the gratuitous loquacity of poor poll. in this he'd rather resemble the bullfinch; you must give out the tune to him, and chirrup with questions to him before he will pipe his strain to you; and when i consider the vast difficulty which the natural taciturnity of you ladies places you under of asking questions, i feel for your curiosity in its tight stays excessively. on this occasion, perhaps, where the motive is so strong, you will break through your native restraint; and, therefore, i advise you to have your interrogatories ready by the th of january, , when alfred, who means to accompany me, will be in norwich. i am very grateful to you for your benevolent wishes of prosperity and happiness to me, but they fall on a heart dead to expectation. i have been so long in obscurity, that hope has quite left off visiting me; the best years of my life are gone; and what is my condition? depressed spirits, and ill health; and the way as far as i can see before me, no better, nay worse than the lengths behind. what right have i to hope? the ring and the lamp of the arabian tales must cease to be fiction, before i can have any chance of good fortune. but i do not call for pity. if i have not learned to be skilful in parrying and eluding the blows of adversity, from experience, i am at heart somewhat hardened by long subjection, and habituation to them; and, if i have not the soothing of hope, i am not altogether without the consolation of philosophy. the happy must substract from his happiness the frequent reflection, which comes like a cloud over him, that death will snatch him from all his blessings. the wretched finds relief in the certainty that death will end his misery; therefore, that state is not very enviable, nor this intolerable. both will soon, very soon be past, and small, indeed, is the difference between past pleasure and past pain. be assured, madam, that i, in return, as warmly wish you prosperity and happiness; i wish not only that the approaching, but many succeeding years, may have both hands full of plenty and delight for you; and i trust that it is not so unreasonable in you to believe, that future events may give a character of prophecy to my present wishes, as it would be in me to expect the fulfilment of yours. pray, have the goodness to tell my father, that the vol. of pickering, from priestleys, is procured, and that the copy of the manuel libraire, at longman's is still to be sold at four guineas. pray, make my thanks to him for letting me know the day of the sessions at norwich; i shall be present to help to do the nothing there. i suppose he knows that the corporation of yarmouth have elected mr. w--- , to the stewardship. i hear him say 'how stupid of them to elect that fellow.' i beg his pardon; it shewed exquisite judgment; and yet, after all, there was somewhat of a felicity in it. they thought it would be deserting propriety to have a man in the lower office of steward of higher understanding than their recorder. now, under all the fleecy cloud of wigs that lowers in the court of king's bench, they could not have found a second rate head to a---s, but that of w--- d, and nothing but 'a lucky hit of nature' that mended her design when she was determined to make as thick a skull as she had ever yet turned out of her hands, could have given existence even to this instance of inferiority. he says he was quite ignorant of their intention of the honour that has been done him. if this be not affectation, i can imagine nothing with which to compare or illustrate his surprise, except that which must have come over the onion, when it discovered that the egyptians had made a god of it. i am wrong: surprise is the effect of perception and he has none; his is like the genuine night, that admits no ray, and in his very stupidity he is involved from the least glimmering of consciousness of it. pray, lessen the anxiety of harriet, which an unmerited affection for me betrays her into, by telling her that i am getting better, and excuse the want of turn to the conclusion of my letter in the want of paper; and allow me abruptly to assure you that, i am, dear madam, yours most faithfully, henry cooper." the following letter, the reader must think very piquant and graphic, and it will, probably, tend to throw a new light upon his preconceived opinions and estimation of a certain great man. he must remember, too, whilst reading it, that admiral sir george cockburn had the command of the ship which conveyed napoleon and his suite to st. helena. this letter is dated, _london_, _oct._ . to the same,-- "i am very much obliged to you for your excellent and most welcome present [it is below the dignity of the epopee to say goose and sausages] which reached me on sunday, and the note which you were so kind as to send with it, i can only repay you in this the old paper of unproductive thanks, but the sincerity of them will be held in some estimation by the mind actuated by the kindness that has excited them, and, therefore, flimsy as they are, i venture to beg your acceptance of them. i have nothing new, madam, to send you for your entertainment from this great city. that the regent is going to divorce the princess of wales, and excite the hope of the husbands and the fear of the wives--that under such an example, all the legal restraints to repudiation will be removed, and the practice become wide, and quite fashionable; you have, of course, heard long ago from the newspapers, they are eternally depriving us by anticipation of the power of writing agreeable and interesting letters to the ladies in the country. sir james cockburn arrived in town last saturday from bermudas. he is quite well, and neither seems nor believes himself an hour older for having been three years at bermudas, since he was last in england. i have been much with him and his brother, the admiral, lately. i have not (for your sex has not all the curiosity, though all of a peculiar kind) omitted to ply him with questions about buonaparte. he is now admirably qualified to be emperor in that country of which i have read, where they elect the fattest man in the state to the empire. his legs are as bulky as my body, the ribs in proportion; and since this girth is all attained in little more than five-feet five-inches of length, he is not what miss cruso or miss godfrey [the head milliners of norwich at the time] would call a very genteel figure. he eats with voraciousness of the most luxurious dishes; he has, in cockburn's opinion, a very mean assemblage of features with something fearfully black and vicious about the brows and eyes. his manners are coarse and repulsive. did you ever in a litter yard come suddenly on a lady in the straw that starts up on her fore legs and, dropping fourteen infant pigs from her teats, salutes you with a fierce jumble of barking, grunting, and hissing? in exactly such a sound is this amiable man represented to me to have always replied to every address of bertrand, mouthoulon, and the others, who are his fools and followers to st. helena. sometimes he neglected all restraint on his nature, and gave the same ferocious and inarticulate answers to the english officers. he played chess so badly, that bertrand and mouthoulon, who had too much discretion to excel their patron, had, at times, great difficulty to lose the game to him; after trying for many nights he could not attain the rudiments of whist, and went back to vingt-un; but this is the man who has been described to us all as all- intellect. the newspapers, too, said i remember, that at whist he left all instruction behind him, and soon played so well, that he had won very large sums of the admiral by his superior play, even while he was only a tyro. i can tell you no more now; but the admiral has had the goodness to lend me a journal of his conversation with buonaparte on the passage out, and when i have the pleasure of seeing you in the sessions week, i will give you some extracts from my memory. i am, i believe, a little better, but the disorder in the upper part of my stomach still continues and oppresses me. it is now inveterate, the complaint commenced last march, a twelvemonth past. if i cannot rid myself of it, it will kill me in time. my best duty to my father, love to william and 'aliis,' i am, dear madam, yours very faithfully, henry cooper. p.s.--i write in a great hurry for i am making up my parcel for bermudas. i should not write to you at all, but i do not like so long to delay my due thanks to your kindness." this letter is dated, , _lamb's buildings_, _th_ _january_, . to the same,-- i am scarcely warm in my place in london before i have to thank you for your present to me; you hardly give me time, in the short intervals of these marks of your kindness to me, to frame my thanks to you for each. i have exhausted all my common-place forms and am forced to rack my invention (so very often have you come forward with these welcome claims on me) to give anything like a turn to the expression in which to convey my thanks. mr. pope (in those rhymes for the nursery which he has entitled the universal prayer) calls enjoyment obedience: now if enjoyment be thankfulness, too, then never was a being more completely thanked than yourself; for the ducks were devoured with the most devout gust and appetite; they were the most superb fowls that ever suffered martyrdom of their lives to delight the palate and appease the hunger of the lords of the creation. you should have sent them to some imitator of the dutch school, who could have painted them before he ate them; the hare, too, is as good as it can be, and you are agreeably thanked for it by an equal portion of enjoyment. i must beg you to excuse a very short, dull, and hasty letter, from me. if i were not impatient at the thought of letting any longer time elapse without expressing my lively sense of your frequent mark of kind consideration of me, i should not write at all to day. i have something to do at my chambers, and in ten minutes i must run down to westminster hall; and whilst i am thus engaged, i am as much disqualified for writing, by a dark fit of low spirits, as prevented by want of leisure. i resist as much as i can these attacks of the night-mare by day, but i cannot wholly succeed against them; my circumstances may possibly change, and, if not, such gloominess is unreasonable; if fortune is never weary of persecuting me, i shall at last be past the sense of her persecutions. in the meantime, whatever is the colour of my life, i shall, if i can, continue to hope the future cannot be the worse, and the present will be the more tolerable for it. i shall, therefore, cling to her while i live, and to apply a beautiful thought of tibullus-- 'dying, clasp her with my failing hand.' in endeavouring to recollect me of the many fine things that have been said of hope to crown my declaration of attachment to that first place of our lives, i remember cowley has observed 'that it is as much destroyed by the possession of its object as by exclusion from it.' this is very ingenious and very true, and though not to the purpose for which i was seeking it yet will very well serve another. i wish my dear madam, very sincerely, that the former mode of destruction may speedily befall all your present hopes, and that in future you will be surrounded by so many blessings as will leave you no room for the exercise of any hope but their continuance, my duty to my father, and my love to william, i trust that he improves in latin; pray tell him that i was vexed not to find him so good a scholar in that language as i expected; when i next see him i hope my expectations will be exceeded. i am, my dear madam, yours very truly, henry cooper." the following letter i have previously made reference to. it is written, evidently, in despondency, and heartfelt sorrow, under the shock of the frightful calamity. it relates to the disastrous death of poor alfred, his youngest brother. it is dated from, and bears date , _elm court_, _temple_, _th_ _june_, . to the same,-- i received your letter yesterday, but i was so ill (that important as the occasion is) i could not answer it. to-day, nothing less than the urgency of the subject could prevail upon me to make the smallest exertion, for i am scarcely able to drag one limb up to the other. i have a violent catarrh, the glands of my throat are further inflamed and ulcerated, and i am burning with fever. with regard to divulging to harriet the disastrous event, for which, when once known to her, she can never be consoled; i am in a very unfit state to give advice. i am as i have always been of opinion, that it should be concealed from her as long as it can. it is a more generous cause of grief than the loss of a lover; and as harriet's mind is built, i think more likely to shock and destroy her. you state only one reason for breaking the secrecy which has hitherto been observed--that it appears strange, the event public, that you are not in mourning for it. i cannot but think that if any good can reasonably be expected from withholding the knowledge of this dreadful incident, it would be wrong and trifling to forego it, for the senseless custom of putting yourself in black for a few months. i have no crape about me. if any one were to ask the cause of my disregard of a paltry decorum, i should either turn on my heel from him, or explain to him that i did not put on the mockery of sorrow, lest it should get to my sister's ear; that i was in outward mourning, and she had to be discovering for whom. it is, surely, easy for you to say that you do not put on black for the same reason, to all who may enquire, or to all those to whom you wish to appear decorous. [he then writes on family matters, but, after a few lines, again recurs to the painful subject of his letter.] it is known to several with whom i am acquainted in london; but, it is easy, as harriet restricts herself to a very narrow intercourse, to keep it still from her knowledge, till she has recovered strength of body to contend anew with severe and heavy affliction. how much i have suffered from the intelligence i shall not attempt to describe to you. i had but little interest in life before; it is now heavy and sickening to me. i feel as if i never should smile again; every circumstance of aggravation attends it. to perish on the verge of the shore, when he was just about to embark, after six years in the climate, when we thought the danger past. with letters from him full of felicitation of himself, and rapture at the hope of soon meeting us again, and when we were expecting him every moment in our embrace, to be struck cold to the heart with the news that we should never see him again. i owe little to man--i shall soon owe nothing to any other being. i hate the cant of the doctrine of providence 'your brother may be snatched by a merciful power from impending evil.' bah! why not the merciful being continue life to my brother, and destroy the impending evil? well, i shall soon be as he is, and though there is no consolation in that feeling, it is some assuagement of grief, because sorrow will then be at an end. my duty to my father. i write in great pain. i am, dear madam, yours very truly, henry cooper." the following makes the last of the letters i possess, and is written six months previous to his death; and in answer to a letter, of my mother to him, respecting the appointment of a paid chairman, and he, a barrister of some standing, to preside at quarter sessions, and to have besides (if my recollection be correct) some civil power. this was then in the contemplation of the ministry; and as the poet says "coming events cast their shadows before" evidently the shadow of the present county courts. the letter is dated from and bears date, , hare court, temple. th march, . to the same,-- "i did not return to town till sunday morning, when i found your letter at my chambers. i hope you will accept, as a sufficient excuse, the extreme fatigue and languor which i felt all yesterday for not answering it immediately. i lament exceedingly, that my father should not have been early enough in his application to the lieutenant of the county, in whose gift, by the frame of the bill, the appointment is placed, and in whose hand, i fear, by the act itself it will remain. i cannot conjecture to whom it has been promised by col. wodehouse. to alderson is not at all probable, from the part he has taken against the wodehouse's, who are the most bigoted and relentless tories in existence. to preston [another provincial barrister in norwich, and the late jermy, who was shot by rush], ought not to be probable, because he is not competent either in law or common sense to fill the office; and the favour to him would be an injury to the public. my father has every claim to it, and i think that it would have been no more than what was due from col. wodehouse, both to the county and my father, to offer it to him before he promised it to another. i wish you might be right in your surmise, that the patronage will be placed in another quarter; but, of that there is the faintest chance, i should advise you to press my father to exert himself to procure the appointment, as it will be an office of the most agreeable kind, affording considerable profit at very little trouble. i, myself, know not a soul in the world who could influence any one of the present government: and any enquiries or attempt by me would have, in all probability, an adverse operation. i am of no importance whatever to any party, but my opinions, humble and insignificant as they are, have been noticed and recorded; and i am down in the black book for persecution, rather than in the red for favour. of little note and importance as i am, such is the consciousness, in their own infirmity, in those who rule us, that the very lowest who have denounced their system, are objects of their hatred, for they are the objects of their fear; and those who have put them to the pain of apprehension, are marks for their revenge. i should think that the best course that my father could take would be to apply to mr. john harvey, to induce his brother, onley harvey, esq. (a brother barrister of my father too), to ask it of the home department; if he asked it (supposing the gift to be there), i think, without doubt it would be given. [the rest of the letter relates to family matters, and concludes my love to william. he attributes too much honour to me by looking to me with any admiration.] my duty to my father. i am, dear madam, yours very truly, henry cooper." my task is all but accomplished. i have but now to lay before the reader the promised verses; those on buonaparte are characteristic of the writer, who, with his high intellectual powers, possessed to the last, a noble and independent spirit, which despised even the appearance of servility. i shall then add the notices that appeared in the _morning chronicle_, and _gentleman's magazine_, soon after his decease, which clearly show that he, whose death they record, was no common person; as, also, the high estimation he was held in by the profession, to which he was an honour; and by the public who admired him for his eloquence, and prized him for his independence of character. in the sketches i have given of the two lives, which were, of necessity intermingled,--it is true, i have given but a rough outline of each, and my hope is they will portray the lineaments and character as effectually as a more lengthened biography; as i have seen, and often the character of a friend's face better given in a few mere outlines, than in the finished likeness. in looking at a small duodecimo edition i possess of plutarch's lives, i perceive that the lives of his greatest heroes and statesmen, are comprised within a hundred pages, and yet how clearly does he portray their lives to the reader. he gives a few anecdotes of their youth, a few salient points of their character in manhood, and then concludes with their actions and their deaths; and leaves the rest to the imagination and "the mind's eye;" and who, after, reading them, does not see clearly before him the man whose life has been so ably delineated? i mean not, by this, to compare myself for an instant, with that great writer; but, having, as i said before, such slender materials to deal with, i have, as far as i was able, and after re-perusing the writer referred to, done my best, with my small abilities to follow his example, and pursue his arrangement; i can only hope i may have in part succeeded. after the notices referred to, i shall end by laying before the reader the verses written on my brother, after his death, by my mother and mr. wing; and in the appendix i shall refer the reader to the life of erskine before alluded to; as, also, to the trial of mary ann carlile, which will show, and clearly, the style of the eloquence of her advocate on the occasion, combined as it is with powerful argument, and that clearness and lucid order which were his forte. and now, reader, to use the words of cicero, in concluding one of his epistles to a friend, "vale et valeas." "in bonampartem." he ne'er shall be extoll'd by me, whom wealth and fortune raise to power; but he, alone who will be free from sordid shame, or live no more. let him with wreaths of song be crown'd, who life, deflower'd of glory, spurn'd, and breaking from his kindred round, to carthage and to death return'd. with him, who when his righteous hand, in vain the splendid blow had given, the tyrant, only chang'd, disdain'd the light of unregarded heaven. and cato--thou, who tyranny all earth besides enslaved, withstood; and failing to high liberty, pour'd fierce libation of thy blood. oh, godlike men! you leave no praise for him who to the king could bend, to add a few unhonor'd days to life, at latest--soon to end. nor him self-raised to gallia's throne, who, rushing with his martial hordes, cast europe's ancient sceptres down, and made his slaves her sov'reign lords. for his was not the heart that dar'd when with the battle all was lost, plunge in the whirlpool of the war, and share the slaughter of his host; nor his, the indignant soul with brave and roman arm, his life to shed; but still he sought by flight to save his outlaw'd and unlaurell'd head. with face to earth his vet'rans' lay in ruins all who bore his name; his mighty empire past away, and blasted, as a chief, his fame. yet--yet--(so let him live) content the sentence of his foes he bore, like a vile felon to be sent an exile to a wretched shore. from the portuguese. where silver hairs no reverence meet, where to the weary stranger's feet to cross the threshold 'tis denied. and at the genial board, her place no kerchief'd matron takes to grace her savage husband's haughty side; where niger hides, or on the shore of dark and stormy labrador. o castres,--i with thee would rove, and, blest, thus wand'ring, if my mind could leave her galling bonds behind; the bonds of an unworthy love. not like a gambian slave that fled (of the pale creole's lash in dread) from rio, strives in fearful haste the mountain's woody side to gain; but with him drags the clinking chain, lock'd at his waist or ancle fast. the woes of the rivers. "to each his suff'rings." heaps of dead trojans were scamander's bane, dead dogs, dead cats, and dung-boats shame the seine, ten thousand shores and jakes the thames defile, and gradual mud is working woe to nile; yet harder duddon's fate, her hapless stream of fifty strains by wordsworth is the theme. * * * * * the following _jeu d'esprit_ was written on a certain nobleman, who, leaving the whig party, of which up to that time he had been a strong adherent, and for the sake, it was supposed, of gaining the regent's favour, not only voted, but took a strong part against the queen. to lord l---. what caused you l---, to rush in, through thick and thin, to give your queen a splashing for this your party, to the devil gave you, and yet the rav'nous tories will not have you. so in that country (where with hopes you fool your second infancy, you yet shall rule) a sect of devotees there is who tell ye the way to heaven is through a fish's belly; and in the surges, on a certain day, they give themselves to rav'nous sharks a prey. among the rest, an ancient beldame went,-- weak, wither'd, wrinkled, tawny, tough, and bent (your very self in breeches she would be, put on her petticoats, and you were she); she waded in the water to her haunches, hoping the sharks would pass her through their paunches; but out of fifty, not a shark would have her, tho' she implored them, as a special favour; they came and smelt, and did not like her savour, she threw their stomachs into such commotion, they would not even bear her in the ocean. but down they pushed her--roll'd her o'er and o'er, and shovel'd with their snouts again to shore; alike your fate: to be by sharks abhorr'd was her's, and your's by minister's old _lord_. * * * * * in the _chronicle_ of september th, , appeared the following notice of my brother's death, headed:--"death of henry cooper.--we regret to have to announce the death of a gentleman warmly beloved by all who knew him, mr. henry cooper the barrister. he died on sunday the th, at the cottage of his friend, mr. hill, of chelsea, after a short illness which brought on an inflammation in his bowels that proved fatal; he was interred on friday last. "mr. cooper had overcome the difficulties of his profession, and was rising fast into eminence. he was already leader on the norfolk circuit, and with his readiness, his powerful memory, and his forcible and fluent delivery, the most distinguished success was universally anticipated for him: his vein of pleasantry was particularly rich, as an instance we may refer to a case on the very last circuit in which a hairdresser of newmarket was one of the parties, and which he made irresistibly amusing. we appeal confidently to those of our readers who have attentively considered the signs of the times, if there was not much distrust of the bar about the period when mr. henry cooper came into notice, and if he did not by his exertions contribute greatly to remove it. "he had been sometime employed procuring materials for a life of lord erskine, with whom he was particularly intimate, which he had undertaken to write; we suspect he had not made much progress in the work when death erminated all his labour." the next notice of his death is taken from the _gentleman's magazine_, from july to december, ; vol. , part .--"on the th of september, , at chelsea, henry cooper, barrister-at-law, in the vigour of life and with every prospect of reaching the highest honors in his profession. the death of this rising barrister has been recorded in page [as above]. he died of inflammation of the bowels, at the house of his friend, mr. hill, at chelsea. his age was about thirty-eight or thirty- nine, and he had been about twelve years at the bar. he was the son of a counsel of eminence residing at norwich. he went to sea with lord nelson, and was present at the battle of the nile, but he early quitted the naval profession for that of the law, though he retained much of the frankness and gaiety of manner which distinguish seamen, and the activity and strength of frame which a seaman's habits create. he was afterwards attorney general of the bermudas, at the time when one of the cockburn's was governor. on the appointment of the late mr. serjeant blossett to the chief justiceship of bengal, mr. cooper, who was then rapidly rising on his circuit (the norfolk) became one of the leaders; and at the two last assizes, was in every cause. "he possessed great activity and versatility of mind; no one, according to the testimony of those who saw most of him, combined with a fluent and powerful eloquence, a better judgment and nicer skill in conducting a cause. but his best and highest forensic quality, and that which, combined with his talents, make the loss a national one, was his great moral and professional courage, his unshaken attachment to what he considered a good cause. no consideration ever warped him from his duty. he was proof not merely against those speculations on the best probable means of personal advancement which many men reject as well as he did, but against that desire of standing well with the judges, of getting the ear of the judge, of obtaining the sympathy of men of professional standing, which it requires much more firmness to resist; there was no one on whom a defendant exposed to the enmity of government, or to the judges, or to any prejudices, could rely with greater certainty; that he would not be compromised or betrayed by his advocate. in a word, there was no man less of a sycophant. he had a confidence that he could make himself a name by his own merits, and he would have it. "but the fair guerdon when we hope to find, comes the blind fury with the abhorred shears and slits the thin spun life." the following verses, soon after my brother's death, headed, "on the death of henry cooper, esq.," appeared in the provincial papers; they were composed by my mother, and had not only the tacit consent of all, but the universal praise, and that openly expressed, for their spirit and truthfulness which all felt, for all then knew and admired him they mourned. the pride of the circuit is gone, the eloquent tongue is at rest; the spirit so active is flown, and still lies the quick heaving breast. the mind so gigantic and strong, is vanish'd like vapour or breath; and the fire that shone in his eye, is quenched by the cold hand of death. yet a balm to his friends shall arise, that so soon he acquired a name; for he dropp'd like a star from the skies, untarnished in lustre or fame. the following verses also, on the death of my brother, appeared in the provincial papers, and were written by frederic wing, esq., attorney-at- law, residing at bury st. edmunds, suffolk, and headed, "on the death of the late henry cooper." "ye friends of talent, genius, hither come, and bend with fond regret o'er cooper's tomb; closed are those lips, and pow'rless that tongue, on whose swift accents you've delighted hung. cold is that heart,--unthinking now, the brain, but late the seat of thought's mysterious train, for by the stern, relentless hand of death, is stopt the inspiring, animating breath: and he whose powers of rhetoric all could charm, fail'd to arrest the tyrant's conquering arm. cooper,--farewell!-- transient, yet splendid, was thy short career, unfading laurels twine thy early bier. to mourn thy exit, how can we refrain, for seldom shall we see thy like again! who, to deep learning, and the soundest sense, join'd the rare gift of matchless eloquence. thy wit most keen, thy penetration clear, thy satire poignant, made corruption fear. and such thy knowledge of the human heart, so prompt to see, and to unmask each art. oppression shrunk abash'd, while innocence call'd thee her champion--her sure defence. once more, farewell, long shall thy name be dear, and oft shall independence drop a tear of grateful memory o'er departed worth, and selfish, wish thee back again to earth. to abide the important issue of that cause, fix'd not by mortal, but celestial laws, thou'rt summon'd hence, may'st thou not plead in vain, but from our heavenly judge acceptance gain, and sure admittance to those courts on high, where term and time are lost in blest eternity. appendix. the life of lord erskine. as commenced by my brother thomas erskine, the only advocate, and, almost, the only orator, whose speeches are likely to survive the interest of the occasion that gave them birth in a country, where forensic litigation abounds, and political institutions render the study and exercise of eloquence important and necessary, was born on the in --- the year , at ---, in scotland; he was the third son of the earl of buchan, by ---. this family is ancient, and connects, with its pedigree, the sovereigns, both of scotland and england, related to the former. the marriage of the daughter of james the first with the palatine, mixed his line with the descendants, and, consequently, united him with the family that now reigns in england. he thus brought with him to the profession of the bar, the advantage of all the prejudice in favour of illustrious descents, and found easier way yielded to his powerful talents by the diminution of envy which attended it. of his very early years, i am unable to supply the public with any information, and i regret it,--not that any very important lesson of utility can be derived from the anecdotes of childhood, but they are amusing, and amusing without harm; and i agree with dr. west that he has a very imperfect knowledge of human nature who is not convinced, that in a state of refined society, it is impossible to amuse innocently. all that i have been able to learn distinctly, is, that the most playful vivacity, and the same good humour, which ever after accompanied him even in the keenest rivalry of the bar, displayed itself in his words and actions, and made him the delight of all, but those who morose and splenetic, from their own disgust of existence, conceive offence at others for that enjoyment of the present, which can only subsist upon ignorance, and the hope of the future that must be disappointed. to this vivacity, he, perhaps, owed as much as to those endowments, which are deemed more solid qualifications for the bar. it imparted itself to his eye, his mouth, his tone, and his action, and held his hearers engaged, when his periods were such as pronounced by an ordinary speaker, would not have preserved the audience from that listnessness, which is instantly seen and felt by the speaker, and soon adds embarrassment and confusion to feebleness. in private society, to the last months of his existence, it gave him rather the air of a youth inexperienced in the realities of life, and entering it under the ardour of hope, than of a man who had almost reached the limits of human existence, in the exercise of a profession, which lays the human breast naked to inspection. it was said of pope, from his primitive habits of reflection and gravity, that he was never young; and, on the contrary, it may be said with equal justice, from the playfulness and vivacity of erskine, that he was never old. at the age of he entered the navy as a midshipman, and served in the ---, commanded by captain ---, in america. while in this station he was employed in making a survey under one of the lieutenants of the ship, off the coast of florida. he had some acquaintance with geometry; and, as he tells us himself in his "armata," always retained a fondness for that science. whether this fondness grew in acquiring the knowledge of navigation, indispensable to his profession, or subsequently at the university in which it forms so much the greater part of education, i am ignorant; but that he was versed to a degree both in geometry and astronomy, is evident, from the work i have named, and some pieces of his poetry, which i have had access to. the cause that led him to leave the navy and enter the army is unknown; it is most likely to have been disgust and impatience of the subordination, which in our fleets is rigid in the extreme, and never softened by that alternation of social intercourse, at a common table at which in the army, all the officers of the regiment meet daily, and from which they rise with a feeling, not only that insulting and overbearing command upon duty would be a violation of an implied pledge of kindness, but injury to themselves, as diminishing in the gloom that would spread over their next meeting, the common stock of enjoyment. the condition of our naval service is, in some respects, improved since erskine was a member of it; but then all knowledge beyond that of the conduct of a ship, was deemed unnecessary, impertinent, and even adverse to the attainment of nautical skill. the intercourse of the officers even on the shore, was confined almost entirely to one another, for not to speak of the uncouthness of their habits, which made them as incapable of mingling in society on land, as the beings of their element on which their avocation lay, are of living in the air, their language was technical to a degree that rendered it to all, except themselves, almost unintelligible. with such persons for companions, and to use terence's expression, quotidian and tedious sameness of a life at sea, we need look no further for erskine's desire to change his profession. when we consider the great capacity which he possessed for observation, and his extraordinary power of combining the knowledge that he so acquired, the period which he gave to the naval service must have been, to a spirit so active, a period of painful constraints. i remember that in a conversation upon lord erskine, with mr. capel loft, after enumerating the many great causes in which the great advocate had been engaged, he exclaimed, "what an infinite multitude of ideas must have passed through that man's mind." the remark is not an empty one; i doubt whether there ever was a man who exercised the faculty of reasoning more, who drew a greater number of distinct conclusions, or whose materials of thought were more the collection and property of his own observation. cicero, in his speech for archias, appeals to the judges whether he could possibly supply the demands upon him for daily exertions of eloquence, unless he assidiously refreshed his mind with studies, in which he was assisted by archias and other rhetoricians, and that he read copiously is manifested in all his works. the accomplished academician, the able balancer of the different schools of philosophy and morals, and the studied rhetor is obtruded upon us. he was, in every sense of the term, learned; erskine, on the contrary, cannot be discovered by any of his speeches, or writings, to have read much, and most probably had read very little. he was in no sense of the word learned. he has, indeed by acuteness of observation, vigour of combination, and the ready power of deduction that he possessed, been able to produce and leave behind him what will become the learning of others, but he was not learned himself. his qualities, from his earliest years were quickness and acuteness, unchecked and insatiable curiosity, retentive memory, and busy reflection; his mind was never still. in the coffee-room he conversed and indulged in humour with all round him. however important or heavy the causes which were to occupy him in court, they never oppressed his mind with a load of anxiety; his was not like ordinary minds under great affairs, so absorbed that he could perceive nothing round him; his, till the hour of solemn exertion arrived, was disengaged and indulged in pleasantry; after the toil of the day, the passion of eloquence and the intensity of technical argument, he was full of spirits and waggery at dinner and in the evening. and light as his topics sometimes were, his thoughts were always distinct, and his expressions full; you never from him heard any imperfect thoughts expressed, that (like tadpoles, before they are complete, must go through other processes of animation) required the exertion of your own conceptions to attain their sense and spirit. the activity of his mind was like that of the swallow, which either in sport or pursuit is upon the wing for ever. with this character it may readily be believed that young erskine received his discharge with feelings like those that attend the cessation of a long and painful disease from a state which called for no exercise of his great talents, and, neither yielded scope for the communication of his own attainments nor opportunity to increase them from the communications of others. he became an ensign of the royals and married not long after. he was sent with his corps to the mediterranean, and stationed either with his regiment or a detachment of his regiment, at minorca; there, under the influence of an ardent feeling of religion, which he owed to the anxious inculcations of his mother, from whom he received the rudiments of education, he is said in the absence of the chaplain, to have composed more than one sermon, and to have delivered them to the assembled officers and privates of his regiment. it never occurred to me to ask him whether there was truth in this report; but he has frequently talked to me of anecdotes which were circulated of him, some of which he confirmed while he contradicted others, and never spoke of this as unfounded; from my knowledge of his character it is highly probable, and i believe it is true. about three years ago he was at tunbridge wells with mr. coutts, and while there, pointed out to a friend of mine a building, and said, "there, when it was a public room, i preached a sermon of my own composition to the company;" this was for a wager. he returned to england in -- with his regiment, the father of three children. the anxiety of his mother, whose affections and care for her family rendered her most estimable, and have endeared her memory to her descendants, was excited by thomas, who had nothing but his pay for the support of his wife and his children, likely soon to become more numerous. her prudence suggested to her another profession for him by the gains of which he might avoid the destitution which she saw hanging over his head. with this design, she sent for mr. adam, the barrister (now the commissioner of the scotch jury courts), that she might receive the assistance of his experience and advice. on his arrival she said, "my son tom has been thoughtless enough to marry a woman without fortune, and she has brought him a family which he cannot support himself, nor i for him,--what is to be done? and i have been thinking that he must sell his commission, go to the bar, and be lord chancellor." it is interesting to reflect, that while this excellent woman was endeavouring to conceal the bitterness of an affectionate mother's anguish for her son's imprudence, she was unconsciously pronouncing a prophecy. nor will it be less to see how trifling an event would have prevented its accomplishment; mr. adam told her that there were a great many steps from the entrance of the profession and the very high rank which she purposed, many of which he should be happy to congratulate her son on attaining. the conference proceeded, the obstacles to success at the bar were weighed against the certainty of domestic calamities if he remained in his present profession, and they parted, both of opinion, that in the direction of the bar, thomas erskine was most likely to leave behind his present embarrassment and reach prosperity. it remained, however, to procure the consent of her son; that was not easy: he had no predilection for the bar, and was attached to the army, and his regiment, to the officers of which his sprightly and amiable manners had endeared him, and in which he was soliciting promotion and expecting it. at last, however, his conditional consent was drawn from him. he agreed to let his mother dispose of him as she wished, if he should be unsuccessful in his application for the vacant captaincy in the royals. this was far from satisfying his mother, but he was peremptory, and she could not induce him to more positive terms; thus, if erskine could have gained the rank of captain in the royals, the destination of which was, then, an american colony, by which he might have gained the privilege of being scalped by the savages, or perishing in the swamps or forests of north america, the country would never have known that splendid eloquence, which is its boast and its pride; tooke, thelwall, hardy, and the rest of those unfortunate men who were held so long under the terror of death, would probably have been hanged, and the country oppressed by a gloomy precedent of constructive treason, under which no man who has raised himself in opposition to a corrupt and sinister government could have been safe; one is inclined to shudder, like a man whom a shot has missed only by the breadth of a hair, in contemplating how near so much danger was incurred, and so much benefit lost. but it is not on the magnitude, but continuity of the chain, that great results depend; on examining the past, we shall find that as small a link struck out at one point or other of succession, would have disappointed the most important events of history. happily for erskine and his country, his claims from the merit of his services were eluded, and though he was more urgent in his applications, since the alternative was to be the bar, he was refused promotion. there was a singular coincidence in the fortune of the late lord chatham and erskine: the former was sent into parliament and driven into violent opposition to sir robert walpole, because that minister had deprived him of a company of horse, and dismissed him the service, an act of which the minister had reason to repent. he was like the emblem of envy with the recoiled dart in his own bosom; except charles i., who stopped hampden and cromwell from embarking upon the thames to follow liberty into the wilderness of america, no man had ever so much reason to curse himself for his own acts. in the same manner a slight of erskine's claims to promotion sent him to display an eloquence that had never yet been heard at the english bar. his fame as an advocate, drew the notice of the whig party on him; he was enlisted in their ranks and added an importance to the opposition, which not unfrequently increased the embarrassment of the minister. while he was held in suspense by those who had the disposal of commissions, he was quartered at maidstone, and entering the court during the assizes there, was placed in his military uniform upon the bench, beside the great lord mansfield, to whom he was distantly related, and who at intervals of business, conversed with him on the proposed change of arms for the gown. this was another of the accidents which, by minds of a certain frame would be regarded as an omen. after relating this anecdote, he added, "only four years from that time, i was at the place in the lead of that very circuit." all his hopes of promotion at an end, the commission so unequal to the demands for subsistance upon it, was disposed of, and he was at once entered a student of the law society of lincoln's inn, and a commoner at --- college, cambridge * * * * * a few days before he was called to the bar, a friend came and invited him to accompany him to dine at the villa of a wine merchant, a few miles from london. the allurements were a good dinner, and wine not to be procured but by a dealer, who could cull his own stock from thousands of pipes, and they were not to be resisted by a young man fond of pleasure, to whom such luxuries must come gratuitously, if they come at all. economy, which was important to erskine, was not quite beneath the regard of his friend, and after many proposals of several modes of conveyance, which were all rejected, either for their expense, or their humbleness, they agreed to walk; i have heard playful exertions of the mind or body attributed to what was denominated an excessive flow of animal spirits, a phrase that sounds significantly in the ear, but gives no information to the understanding. those who use it, mean, i suppose, to express that when the body has received more nutriment than is necessary to promote its growth, or maintain it the redundancy is thrown off in almost involuntary exertions of the limbs or of mind. if this physiology be just, erskine had an extraordinary surplus of supply,--that regular discharge like the back water of a mill, and it found vent in various gambols and effusions of humour on the way to the wine merchant's. while erskine, buoyed by high health and ardent hope, scarcely felt the ground that he trod, the sight of a ditch by the side of the road, tempted him to exercise his agility. the impulse, and obedience to the impulse, were the same. he made the attempt, but the ditch was too wide for his spring, and he leaped a little short of the opposite bank. his dress above was splashed with foul water, and his legs booted in mud. nothing was to be done on his part but to return, and his companion with a kindness that does him honour, would have returned with him, but this, erskine was too generous to allow; and while his friend continued his journey to the wine merchant's house and sumptuous dinner, erskine solitary and in pain (for he had severely sprained his leg) returned to town; on reaching his lodgings mrs. erskine proposed a change of dress, and urged him yet to go to dinner at the wine merchant's. he objected his lameness from the sprain, which she answered by proposing a coach and the expense, which he hinted, was not to be weighed against the benefit he might derive from the friends which his manners and spirits were likely to make him in the mixed and numerous company he would meet there. this was a consideration so important to a young man on the verge of the bar, that erskine's disinclination was overcome by these reasonings of his wife. a coach was procured, and he again set out, but he did not arrive till dinner was half over, and found himself placed by this accident by the side of captain bailey, of greenwich hospital. with the modesty which is always united with true genius, lord erskine always spoke of this event as the greatest instance of good fortune which ever befel him. but for this, he said to me, "i might have waited years for an opportunity to show that i had any talent for the bar; and when it occurred i should not have pleaded with such effect, depressed and mortified as i might have been by long expectation, and its attendant evils, instead of seizing it with all the energy and confidence of youth elated with hope." i record this to show how little he was actuated by arrogance or presumption; i by no means assent to his opinion, on the contrary, i think he would have waited a very short time for occasion to exert his prominent talents. he slipt from high ground into the profession. his rank would have drawn notice upon him, and he had friends full of eagerness, and not altogether without power. no more is the partiality which, it is said, was manifestly shown him by lord mansfield, to be deemed a main cause of his success. on the contrary i am so little inclined to attribute such an effect to it, that i believe even the hostility of the bench could not have kept erskine from rising. his mind was not of the ordinary mould,--he was excited by obstacles. such was his temperament, that the damp slight of discouragement which would have quenched common spirits, by the ardour of his mind would have been converted into fuel, and have increased the splendour with which he burst forth at once at the english bar. how was the delay of opportunity, or the frown of the judge to suppress the eloquence whose first essay excelled, both in matter and delivery, the latest efforts of the most experienced speakers in our courts? when he rose dunning, bearcroft, wallace and others, were in the height of their reputation as speakers in westminster hall. they were even eloquent, according to the judgment of the day gazed at as the luminaries of the profession; but, brilliant as they were, they were combust in the splendour of erskine, on his first appearance as an orator. this considered, it is in vain to pretend, that, but for favourable conjunctions which have happened to him and not to others, the prosperous and devious career on which he immediately entered, could have been prevented or even long delayed.--[alas, no more!] bridge street banditti, _v._ the press. report of the trial of mary-anne carlile, for publishing a new year's address to the reformers of great britain; written by richard carlile; at the instance of the constitutional association: before mr. justice best, and a special jury, at the _court of king's bench_, _guildhall_, _london_, _july_ , . with the noble and effectual speech of mr. cooper, in defence, at large. london: printed and published by r. carlile, , fleet street. . dedication. to henry cooper, esq., barrister at law; for the noble stand and more noble attitude which he took on this trial--for the very eloquent, very bold, and very honest style of his defence--and, above all, for the manly resistance which he made to, and the contempt which he showed for, the menacing frowns of those persons who conducted, advocated, and supported this prosecution: and to those honest jurymen who resisted their fellows in the attempt to throw the defendant into the hands of her enemies, and the enemies of their country; and who, by their honesty and independence, have given a death blow to those corrupt, wicked, and malignant _would-be_-censors of the press, calling themselves a constitutional association; this report of the proceedings is gratefully dedicated by, and the sincere and heartfelt thanks is hereby offered to them, of mary-anne and richard carlile. report, &c., &c. this was an indictment at the prosecution of "the constitutional association," and their first attempt to obtain a verdict. the defendant pleaded not guilty. the following are the names of the jurors:-- special. john stracey, of smithfield bars, merchant, philip jacob, of the crescent, cripplegate, ditto, james byrne, of dyer's court, ditto, charles wright, of the old jury, ditto, (foreman) henry houghton, of king's arms yard, ditto, john webb, of coleman-street, ditto. talesmen. joseph blackburn, russia mat dealer, john davis, painter, john williams, cheesemonger, bryan mills, packer, michael williams, agent, frederick bennet, smith. mr. justice best, at the request of the defendant, enquired if either of the jurors was a member of the constitutional association. the answer was in the negative. mr. tindall opened the pleadings. mr. gurney appeared to conduct the prosecution, and mr. cooper was for the defendant. mr. gurney.--may it please your lordship; gentlemen of the jury; my friend, mr. tindall, has told you the nature of this action, and it is now my duty to lay this case before you. the indictment has been found by a grand jury, upon the prosecution of the constitutional association; and it charges the defendant, mary ann carlile, with publishing a libel upon the government and the constitution of this country; and, gentlemen, after a not very limited experience in these cases, i will say, that a more criminal and atrocious libel never met my observation. it purports to be written by richard carlile; it is dated from dorchester gaol, and it has been published by the defendant, the sister of that man who is now suffering imprisonment for his own criminal conduct. it is entitled, "a new year's address to the reformers of great britain;" and, among other objectionable passages not charged as libelous, it contains the following; "as far as the barrack system will admit"-- mr. justice best.--i do not think that you are entitled to read that passage, mr. gurney. mr. cooper.--i think not, my lord; i was just rising to interrupt mr. gurney. mr. gurney.--i have no objection, my lord, to abstain from reading the passage to which i was about to call your attention. i shall read the passage which is charged as libelous, and if the learned counsel for the defendant can find throughout a single passage to qualify its malignity, do you, gentleman, give the defendant the benefit of it. the passage is this:--"to talk about the british constitution, is, in my opinion, a sure proof of dishonesty; britain has no constitution. if we speak of the spanish constitution, we have something tangible; there is a substance and meaning as well as sound. in britain there is nothing constituted but corruption in the system of government; our very laws are corrupt and partial, both in themselves and in their administration; in fact, corruption as notorious as the sun at noon-day, is an avowed part of our system, and is denominated the necessary oil for the wheels of the government; it is a most pernicious oil to the interests of the people." and in another passage the following words were contained:--"reform will be obtained when the existing authorities have no longer the power to withhold it, and not before. we shall gain it as early without petitioning as with it, and i would again put forward my opinion, that something more than a petitioning attitude is necessary. at this moment i would not say a word about insurrection, but i would strongly recommend union, activity, and co-operation. be ready and steady to meet any concurrent circumstances." now, gentleman, these are the passages charged as libelous, and i defy even the ingenuity of my learned friend to show that they are not most odious libels. what! are the people of this free and independent country to be told that they have no constitution? it is an assertion, the malignity of which is only equalled by its falsehood. we have a free and glorious constitution. it has descended to us from our brave and free ancestors, and i trust that we, too, shall have virtue and magnanimity enough to transmit it unimpaired to our posterity. we have laws, too, equal in their administration. we have a constitution where no lowness of birth--no meanness of origin--operate as an obstacle to preferment; in which the chief situations are open to competition, and for which the only qualifications are integrity and information. our laws are here stigmatized as partial and corrupt. if they were not impartial, this man would never have dared to vilify them. the very accusation proves that the charge is false; for if it were true, this libeler must have suddenly suffered for this assertion. it is because that they are administered in a spirit of mercy unknown to the laws of any other country--it is because they are administered in tenderness, that this man has had the power to promulgate his vile and odious falsehood. he thought it meet and right, and most becoming too, to tell the world that this was not the precise time for insurrection. he plainly indicates, that he has no objection to it; but he would not say a word about it at present, the time was not come; but he tells his fellow reformers to be "ready and steady to meet any concurrent circumstances." gentlemen, it would be an idle and impertinent waste of time to make any further observations upon the pernicious tendency of this libel. but what is the defence which is to be set up by my learned friend? are we to be told that the prosecution of this libel is an invasion of the liberty of the press? i will not yield to my learned friend, nor to any man in existence, in a just regard for the freedom of the press. but who, i would ask, is invading its liberty? he who brings to justice the offenders, or he who under the sacred form of liberty promulgates such language as i have just read to you? i do not think that on this subject you can entertain a doubt. i feel the most perfect confidence in committing this case to your good sense. if you believe that the defendant is guilty of publishing this libel with the intention charged, you will pronounce your verdict of guilty. if, on the other hand, you think that the passages which i have read to you contain nothing libelous, or that the defendant is not the publisher, i shall sincerely rejoice in your conscientious acquittal. _james rignall_ deposed, that he had purchased the pamphlet in question of the defendant, at her shop in fleet street, on friday evening, the th of march. there were several other copies lying about on the counter. cross-examined by mr. cooper.--who are you?--i am an agent to the society for the suppression of vice. but you are also employed by these constitutional people, as they call themselves?--only in this one instance. were you employed to purchase the pamphlet in question?--i purchased that and others. you were employed by the constitutional society to purchase them?--yes, i was. who sent you?--mr. murray. the attorney?--yes. and he directed you to purchase this pamphlet, eh?--he did not particularize any. did he state his object in the purchase?--no. what wages are you to have?--i have no wages. then you perform this agreeable duty gratuitously?--no, i do not say that. then how are you paid?--i made a charge for my time. perhaps you belong to the society?--no, indeed i do not (with vehemence). well, i do not wonder that you should be anxious to separate yourself from the society (a laugh amongst the auditory). mr. gurney.--i desire that no such remarks may be made. mr. cooper.--what have you had for this particular job?--i have made a charge for several other little things i did (a laugh). mr. gurney (to the spectators),--i shall certainly move his lordship to take notice of some particular persons that i see misconducting themselves. cross-examination resumed.--what other jobs did you for the association?--i did several jobs; that i will not deny. how much have you had for these little jobs?--i declare upon my oath, i cannot state particularly how much i had for these little jobs. i made a charge. i don't recollect exactly what my charge was. come, come, the round sum?--i can tell you pretty nearly the round sum, if that will satisfy you. i think it was above seven pounds and under seven guineas. i was sent on other business beside this. i wish to know what that other business was?--is it necessary to answer that question? i think it necessary.--then i will take the sense of the court upon it. i have no objection to answer that or any other question, if my lord thinks i ought. mr. justice best (smiling).--it tends to nothing; but it is as well to answer it. then i purchased come other different things for the association, but it was not in consequence of any general or particular orders i received: i went to purchase these publications which i myself thought libels; i cannot state exactly now what they were. then you did that, i suppose, without any hope of reward?--i don't state without any hope of reward; i expected to be paid for my time. oh, then, it was not altogether out of virtue and patriotic feeling?--those were two of my motives, most certainly, but not the only ones (general laughing). has this been the usual way of getting your living?--it has for a year and a half past; i have had no other feasible occupation during that time. i suppose you received a considerable sum in the course of this honourable employment?--i have told you the sum total was about pounds. mr. justice best.--do you think that material, mr. cooper? mr. cooper.--i do think it material, to show the sort of agents that this honourable society employs. (to witness.) and what did you do before you suppressed vice and libels?--i got my living honourably as an officer in his majesty's customs. and are you still an honourable officer, &c.?--no; i have lost my situation. retired upon a pension?--no. how old are you?--fifty-four. no pension, eh?--none. re-examined by mr. gurney.--i have been in the employment of the society for the suppression of vice for a year and a half; i have been paid by them for my services. in this instance, and in several others, i have made some purchases for the constitutional association. _horatio orton_ was then called. a general murmur ran through the court, which was crowded to excess; and all persons most deferentially gave the witness way. examined by mr. gurney.--i was a witness before the grand jury. on the th of march i purchased another copy of the pamphlet in question from mary anne carlile; i had it from her own hand. cross-examined by mr. cooper.--how came you to purchase this on the th of march?--i was directed by mr. murray, the solicitor, to purchase it. this is the gentleman? (pointing to mr. murray, in court)--yes. he is the honorary secretary to the association, and the disinterested attorney for this prosecution?--yes, i was sent by him for the express purpose of purchasing this pamphlet; i should not have gone if i had not been directed by him. what is your situation in the society?--my situation to the association is as clerk. clerk to mr. murray?--no; i am not in mr. murray's office. in the society's office, separate from the attorney's office?--yes. in what situation were you before?--i used to assist my brother in his correspondence with country newspapers. not for the town papers?--no, for himself; he takes the reports of the house of lords' proceedings, and transmits them to the editors of the country papers; i used to assist him in the copying, and he paid me for my trouble. what is your salary in your present honourable situation?--it is not fixed. it depends upon your exertions?--yes. then you work at present by the piece?--no, i do not; the committee have not yet come to a determination about my salary; i have not made any demand for salary; i have not proposed any sum; i mean to swear that; not any sum has been proposed to me; i don't say that i would work for the society gratuitously; if i want five or ten pounds i know where to go for it; not of the association; i can have it of my brother; i expect to receive something of the association. in your modesty, what may be the extent of your expectations? mr. gurney submitted that this was not a proper mode of cross-examination. mr. cooper.--i think it is, and i shall persist in it until i am told by my lord that it is irregular. mr. justice best.--i don't think any part of the cross-examination is approaching to anything like regularity. mr. cooper.--if your lordship says i am not to be allowed the same latitude which is allowed to counsel on other occasions, i shall not persevere. mr. justice best.--i have no objection to your taking your own course, but i think this course of examination ought to have been stopped long ago. i think every fair and reasonable indulgence ought to be allowed to counsel in such a case, but if this was a mere civil case i should have stopped you long ago. mr. cooper.--then i shall proceed in my own way, with your lordship's permission. (to witness.) is this the first job you have been employed in?--i don't recollect any other of this kind. are you sure you have been employed upon no other job of this kind?--i cannot bring to my recollection whether i have not been employed on any other. i may have been, but i am not aware of any. do you know a man named king?--yes, perfectly. do you recollect doing a job in which he was concerned?--i don't recollect doing a job of this kind against king. i might if i saw the paper before me with my mark upon it. there are so many of them that i cannot recollect any in particular. have you not made an affidavit in the job against king?--yes; but that is since this. i cannot recollect whether i have done any other jobs. i have been in the employment of the association about six months. i commenced on the th of january. since the th of march, i don't recollect how many jobs i have been engaged in; they are so numerous i can't recollect. the orders which mr. murray gave me, were to go and purchase the reformers' address at the defendant's shop. i had not any general directions to buy at this or that shop--not from mr. murray. i had from other persons, general directions to make purchase of works; one of those persons was mr. sharpe. he is the honorary assistant secretary?--yes. (all the preceding questions excited considerable sensations amongst the audience, and produced a chorus of humourous tittering). mr. justice best.--the effect of these questions, mr. cooper, you must feel. you cannot wish, i am sure, to excite the sort of response which comes from below the bar. you must see that it is done on purpose. you cannot wish, i am sure, to produce that effect. mr. cooper.--my lord, i am the last man in the world to do any thing inconsistent with the gravity and decorum of a court of justice. i disclaim any such intention; and i must disdain the insinuation of mr. gurney, that i have taken up this cause for the purpose of adding to the public odium in which the honourable association is held. mr. gurney said his learned friend, mr. cooper, was mistaken; he had never insinuated anything of the kind. mr. justice best.--i am sure no gentlemen at the bar would wish to produce the effect which all the questions put by you have had below the bar. mr. cooper said he could not control the feelings of the auditory. he was only anxious to do his duty to the best of his humble ability, and nothing should deter him from discharging that duty freely and undauntedly. cross-examination resumed.--what is the office of the honorary assistant secretary?--it is to do every thing at the office. to superintend the business of the office?--i consider him as the acting manager. then the honorary secretary has a sinecure?--what does the word honorary mean but a sinecure? mr. cooper.--"may it please your lordship; gentlemen of the jury; i am exceedingly sorry that some more able counsel has not to address you on this most important and momentous occasion. i should have been unequal to the task, under any circumstances." mr. gurney.--"stop a minute." (the learned counsel for the prosecution here intimated, that he had something to add to his case; but, after a pause, he intimated to mr. cooper, that he might proceed.) mr. cooper.--gentlemen, under any circumstances, this would be a task, for which, i fear, i am very ill qualified; but under those, in which i stand to address you on this question, i feel my incapacity doubled and trebled. i appear before you without notice, and almost wholly without preparation. i was, indeed, applied to by the defendant, some months ago, and negotiated with (if i may use the phrase) to undertake her defence. but, after this, many days and even weeks passed, during which i heard nothing of the case; and i began to suppose that the defendant had determined to employ some other counsel, or trust herself to her own address to the jury against this charge. at the end of a month, however, i was again applied to; and, again, weeks having elapsed, without my hearing any more of this prosecution, i dismissed it entirely, not only from my mind, but from my memory; nor was it, till last night, that, that i was once more informed that i was to be employed as the defendant's counsel; and my brief at last put into my hands. i was then unfortunately engaged in other important business: and the time, i have taken to collect my own thoughts upon this question, and huddle together a few extract's from writers of authority, i have been obliged to borrow from sleep; and have, therefore, in a great measure counteracted myself; for i have lost in strength, what i have gained in information, and appear before you ill able, indeed, to do justice to this cause. but, whilst i make this statement to excuse my own deficiency, i am bound to acquit the defendant of any reproachable negligence of her own interests. i understand, that the cause of her late application to me, is, that having had, as a mere matter of grace, three weeks' notice of trial from another society, by which she has been prosecuted, she mistook it for her right; and expected the same notice from her present prosecutors. as she had not received any such notice (and indeed she was not in law entitled to it), she supposed, that either she was not to be brought to trial at these sittings, or that the charge was abandoned; as i wish it had been, and as it ought to have been; for i am convinced, that this prosecution cannot be sustained by either law or reason; and that it must be from the weakness of the counsel alone, that you, gentlemen, can be betrayed to pronounce a verdict of guilty against the defendant. gentlemen, it is my duty to clear this case of every possible prejudice that may hang about it in your minds before i enter into the merits of my defence. i do not know how you are affected, but i well know, that with many persons, i should have a host of prejudices to contend against, in the very name alone of carlile. many either believe, or affect to believe, that the very sound is an omen and an execration, and that either he cannot be sincere and honest in the opinions which he professes, or if he be, that those opinions are incompatible with the existence or practice of any moral or social virtue. but, whatever his opinions may be, and whatever your sentiments upon them, i have at least a right to ask of you not to allow any prejudice against the relation, against the brother, to warp your judgment on the trial of the defendant: for, what can possibly be more remote from justice, than, instead of judging a person fairly for his own conduct, to condemn him by our opinion of the sentiments and character of another? i hope and trust that you have entertained no such prejudices: but if you have, i feel assured, that you brought them no further than the threshold of the court:--at that door they fell from you, like the burthen from the pilgrim (in the beautiful allegory) on his reaching the cross; and you stand there with your minds unbiassed, free and pure, to decide between the crown and the defendant in this cause. but it is not only my duty, gentlemen, to clear the defendant, but to extricate the counsel from every unfavourable suspicion, lest it should, possibly, by any confusion of the client with the advocate, operate to the disadvantage of the defendant. whatever, therefore, may be thought of the pamphlet which is before you, as a libel, or of the writer or publisher, i most solemnly affirm, that there is no one who more warmly admires the english constitution, as it stands in theory and ought to exist in practice, than myself, nor is there any one who would more willingly shed his blood if it were necessary, or even lose his life in its support. it is needless then to say, that a more irreconcileable enemy would not be found than myself to the man (if any such there be) who could attempt to overturn our mingled and limited forms of government: and substitute a wild democracy in their place. i think, indeed, that a democratic form of government, however specious in argument, is by no means so capable of raising a state to that eminence of civilization and prosperity, which this country has reached; a condition, for which it is indebted to better times, while the practice concurred with the theory of our government; but which, unless the practice is brought back to the theory, i venture to predict, has not much longer to continue. i, gentlemen, appear here only in the discharge of my duty; and to redeem that pledge to defend the accused, which every man, upon assuming this gown, gives to the public of england. i would, however, have it distinctly understood, that it is only to guard against prejudice to the defendant, and not from any apprehensions for myself, that i trouble you with this explanation. for myself, i am extremely careless, what may be thought of me for having come forward to defend this unfortunate woman. i do not expect to escape obloquy in the present overheated disposition of the country, how can i expect it? when even the present lord erskine, whose talents and independence should have rendered his character sacred, as soon as it was known that he was to be counsel for paine was overwhelmed with abuse, and threatened with the loss of his situation, as attorney general to the prince, if he did not decline the defence. but he knew his duty and discharged it. and for which will he be most honoured by posterity? by which most ennobled? for having in spite of threats, and all the seductions of self-interest, persevered in his duty? or for having been exalted to the peerage of england and adorned with the national order of scotch knighthood? but, if even my humble situation, should not exempt me from the attacks of the malicious and furious, i can tell them that their malignity will be disappointed. instead of regret and mortification it will be a source of pride and happiness to me. small as my chance may be of credit for the assertion, i declare, that i propose to myself no reward so high for my exertions, as the consciousness of having, in spite of all hopes on one side, or fears on the other, honestly discharged my duty. if ever in my course in the profession, i should find myself wounded either in fortune or reputation, instead of regretting and deploring it, i will rejoice and exult at it, and, at those hours, when in full confidence of his companions, it is neither indecent nor unsafe in a man to speak of his own actions, i will boast of it, i will shew it, as an honourable scar. gentlemen, with these preliminary observations, i will proceed to introduce my case to you. my learned friend, mr. gurney, has opened this prosecution with all that pomp of eloquence, and solemnity of declamation, which he possesses in so ample a manner, and which make him so accomplished an advocate. but what has he done? all, indeed, that he or any one else could have done: yet, nothing more than repeat those arguments, which are trite, and worn like a turnpike, and have been topics for counsel after counsel, through a thousand of these prosecutions; while he has left all the great subjects of consideration that present themselves to the mind on these questions, wholly untouched. he has declared, indeed, but without showing you why, that the words, charged in the indictment are an atrocious libel; in which, as it appears to me, he has been rather premature, for a libel they are not, and cannot be, unless your verdict should so declare them. i assert, gentlemen, i am sure his lordship will nod assent to me while i assert it, that you are the only judges of the law of libel in this case; and this paper, for which the defendant stands before you, is either a libel or not a libel, as you may in your consciences think it, and on your oaths pronounce it. the statute, indeed, which declares this the law, has given, or rather left with his lordship, the right of stating his opinion on that question to you; but i am sure he will not think that i exceed my duty, as an advocate, when i say, that though it is your duty to receive his opinion with respect, and give it the most attentive consideration, yet it still leaves you free to your own judgments, and if after weighing his opinion, you find yours unaltered, you have not only a right, but it is your duty to reject his opinion and to act on your own. gentlemen, i submit that it is within your province to take into consideration the nature and operation of those writings, which are called in prosecutions of this kind libels. you are sitting there to try this charge as an offence by the common law of the land. the defendant is accused of having committed an act in the nature of a nuisance; and you are to judge whether that act could operate as a nuisance or not. you are not bound, because pamphlets have been prosecuted as libels time out of mind, or even because they have been declared libels by the verdicts of preceding juries to tread in no other path than their steps; and to find similar, or even the same matter, libels, if you should not think them criminal or dangerous. if you should be convinced by argument, not only that the pamphlet before you is not a libel, but that almost all those political writings, which it has been the habit of certain people, taking up the cry from their leaders, to call libels, are not merely not dangerous but beneficial to political society; is it possible to conceive, that you can be induced to pronounce a verdict of guilty against the defendant! how can you come to such a conclusion; as that there should be punishment where there has been no mischief, and where there could have been none, and if there not only has been no mischief, but could have been none,--nay, if even there must have been benefit, how can you lay your hands on your hearts, and say there has been crime? suppose a man was indicted for a nuisance in doing that for which a number of persons had in succession been indicted and convicted, would that oblige a jury to find a verdict against a person at this day indicted for the same act, if he should prove to them by evidence, which their minds could not resist, that what had been complained of as hurtful to public health and morals was noxious to neither, but salutary to both? would you, in such a case, though a thousand preceding juries had, in their ignorance, pronounced verdicts of guilty, follow their example, against your full knowledge and internal conscience? to illustrate by a familiar instance, when hops were first introduced into this country they were very generally believed to be pernicious. several persons were i believe prosecuted and convicted for using them; yet now they are known not only to be not pernicious, but nutritious; they form a principal ingredient in the daily beverage of our tables, and are even employed largely in medicine. let us now imagine a man prosecuted for the use of hops or any other drugs upon the ground that they injured health, and that upon his trial he should fill the box with men of science as witnesses, and shew you to moral demonstration, that so far from being injurious, they were highly salutary, would you, because other juries had convicted in a state of ignorance, imitate their blindness, and convict the defendant? certainly not. then to apply this to writings, prosecuted as libels, though there may have been hundreds, and thousands, nay tens of thousands of convictions upon them, yet, if you should be convinced, that what are usually called libels (and this among them) cannot be injurious, but so far from it, that they are innocent and even salutary to the state, in which they are published, would you hand over the publisher to punishment by a verdict of guilty? but i am anticipating, i fear, my defence, and introducing too early observations, which will better be urged in a subsequent part of my address to you. i will, therefore, pass at once to the paper charged as a libel in the indictment, and examine, under what circumstances it has come before you. and in the first place, as to the publication, without which (whatever the nature of the writing may be, there can be no crime) who are morally the publishers of this pamphlet? have you any evidence, whatever, that any one of these pamphlets was in circulation, or ever would have been circulated, but for the impertinent, obtrusive, sordid, and base part of the ministers of the constitutional association? how otherwise is this pamphlet here? let us turn back to the evidence of the first witness. he was the worthy servant of the association in this and a few other recent instances, but for the most part, within a year and a half, the servant of the society for the suppression of vice: a society very different, indeed, from that with which we have had to deal to-day;--not that i have any affection even for that association: i would neither praise nor even be suspected of approving it, but i will not be so unjust and scandalous as to compare it with the constitutional association. before this witness was employed by that society, he was a custom-house officer. are you, i asked him, now a custom-house officer? no. how comes that? i lost my place. how old are you? fifty-four. have you any pension? no. now, gentlemen, i beg to observe, that it is not the habit of the custom- house to turn away officers, who have grown grey in their service, without a pension; unless they have richly deserved to be so discarded and abandoned. such, gentlemen, are the instruments employed as spies by the acting members of this association! this fellow is sent out with instructions from the honorary secretary, mr. murray, who is the attorney for the prosecution, to purchase, not this pamphlet alone, but any political pamphlet, which in his judgment might be libelous. good god! to what a condition are we reduced, when, under the auspices of this blessed association, discarded tide-waiters, and broken gaugers, are made judges of what is libelous, and leagued with an attorney, are to determine what may, and what may not, without the terror of a prosecution, issue from a free press. such was the course pursued: and can you conscientiously say, that, but for this hiring of a spy to make a purchase of this pamphlet for the sole purpose of founding this prosecution upon that very instance of sale, the public would ever have heard of it? gentlemen, it is a great happiness, and much security arises from it, that every person who stands forward as a prosecutor exposes his own conduct, as it is connected with the prosecution, to scrutiny and animadversion. i have a right to assume that freedom which is the privilege of the bar. i remember that in the case of the king and the dean of st. asaph, in which the present marshal of the king's bench prison, without any apparent connection with the subject of the prosecution, was the prosecutor, the counsel for the defendant exercised this right, and the marshal was successively the object of his ridicule and indignation. mr. justice best.--mr. cooper do you think it acting fairly to make this sort of attack on a gentleman who is not present? is this the practice of the bar? mr. cooper.--my lord, i make no attack on the marshal. i only state that-- mr. justice best.--these observations being made on one who is not anywise connected with this case, who is not present to answer for himself, and who would not be permitted if he was, what are we to suppose? can any gentleman at the bar consider this as fair? mr. cooper.--my lord, i have no design to attack the marshal either in his absence or presence. i mentioned him but incidentally. what earthly purpose could it answer to this case to attack him? he _was_ the prosecutor in _that_ case, and i rather incautiously, perhaps, mentioned who the prosecutor was, by name; when i ought only to have said the prosecutor. if i have done him any injustice, i beg his pardon as publicly for it, and thus, i give a remedy as wide as the wound. i say then, gentlemen, that the prosecutor in that case, was alternately the object of the keenest indignation, and the most jeering ridicule, and i have a right to be equally as free, as the counsel in that case, with the prosecutors in this: but i shall by no means follow the example. on the contrary, i think, we are deeply indebted to the constitutional association. consider how we were circumstanced when they first arose amongst us. there was the state, with a standing army of only a hundred thousand men, and nothing besides, except the whole civil force of the realm, a revenue of no more than seventy millions; and the feeble assistance of the established law officers of the crown to prosecute public offenders, when this constitutional association in the pure spirit of chivalry, steps forward to help the weakness of government, and succour its distress. now, whatever men may talk of justice, who can say that disinterestedness has altogether abandoned the earth? who can say that generosity has forsaken us and flown to heaven? let it be considered too, that but for their active vigilance carlile's shop would not have been known. no productions from it had ever been the subject of prosecution, and but for the keen scent of the association, the rank and huge sedition contained in the new year's address might have lain in its covert undetected and undisturbed. but to drop this irony and be serious, the law officers of the crown are fully adequate to their duties, and carlile's shop was as well known to the attorney general as st. paul's to you. for years he has not had his eyes off it. i will engage that every publication, that has issued from it, and this very pamphlet among the rest, has passed through his hands, and under his review. yet the law officers of the crown do not appear here to prosecute it as a libel against the state; and i entreat you to mark this, for i have a right to urge it, as a strong negative proof, that they do not so consider it; and how can that require your condemnation which they (with a judgment surely very much superior to that of the committee of the constitutional association) have not thought worthy of prosecution or notice? yes, you are actually called upon by this association to deliver over to punishment the publisher of this paper, whilst the law officers of the crown (who neglect their duty, if they do not prosecute offences against the state) have thought it of a nature not at all requiring their interference what can be so preposterous? so monstrous? and in taking leave of this view of the case, let me once more ask you who have been actually the publishers of this paper? have you a single iota of evidence, which ought to satisfy your minds, that, but for the insidious conduct of the association, and its spies, this pamphlet would ever have been before you or the public? is there a shadow of proof that one copy was ever sold, except those bought by the creatures employed by the honorary secretary (who is also the feed attorney in this prosecution) for the sole object of entangling the defendant in this indictment? none, whatever. none. they conspired you see to procure and seduce (the word is neither too broad nor too long for their conduct) the publication for the very purpose of this prosecution. how then having thus suborned the offence of which they complain, can they dare to stand forward as prosecutors, when they themselves are the criminals, and ought to be the defendants. mr. justice best.--you mean. mr. cooper, to offer some evidence of that, i suppose. mr. cooper.--none, my lord, but the evidence already before the court and the jury, and the strong and necessary inference from the facts proved by the witnesses for the prosecution themselves. mr. gurney.--there were many others lying on the counter. mr. cooper.--what of that, does it follow that they must, therefore, have been sold? in the absence of all other proof of any publication, i have a right, i am forced to consider the association as the only publishers. mr. justice best.--in the evidence there is nothing like it. mr. cooper.--what, gentlemen, is it a necessary conclusion, that because the pamphlets were lying in the shop, they must have been sold to other persons? the defendant but for their intrusion, for the sole design of prosecution, might have sold no others. she might have changed her intention to sell. the pamphlets might have lain like bad verses untouched on the shop counter, till they were turned over for waste paper, and not a soul have ever known of their contents. the association, therefore, by their insidious and plotted purchase for the sole object of prosecution, have provoked the act of publication, and they, who provoke crimes are the criminals, and ought to be the culprits; and those, who would punish the crimes that they have provoked, are devils, and not men; "the tempters ere the accusers." when i contemplate such conduct--but i will not waste another word, or another moment of your time upon this miserable association. if i had consulted my better judgment, i should have passed them in silence; thus much my indignation has wrung from my contempt. i shall now, gentlemen, proceed to the examination of the libel, or rather that which is charged as a libel itself; and i shall begin with the last part so charged in the indictment, instead (as my learned friend has done) with the first; and let me beg your regard to one remarkable fact, that at the very point of the paper, at which the motives, and design of the writer present themselves to the reader; at that very point this indictment stops. it has not, as you will presently see, the candour to proceed a single syllable farther. i will now read the passage, "reform," it says, "will be obtained when the existing authorities have no longer the power to withhold it, and not before, we shall gain it as early without petitioning as with it; and i would again put forward my opinion that something more than a petitioning attitude is necessary." this it has been urged to you, with great emphasis, is an excitement to insurrection; and you are called upon to draw that inference, though the author immediately afterwards disavows, expressly disavows any such intention. but even, if the words stood alone, i deny that you are compelled to such a construction. gentlemen, will any one venture to say, that i, standing in this place, and in the very exercise of my profession, mean any thing, but what is strictly legal, when i say myself, that supposing reform in parliament be necessary, something more than mere petitioning is requisite to obtain it? but in saying this, do i mean any thing violent or illegal? heaven forbid; no: but i would have societies formed, and meetings held for the purpose of discussing that momentous subject. if reform be necessary, and the desire of a great majority of the country, i would have that desire shown unambiguously to the legislature, by resolutions and declarations at such meetings. who will deny such societies and meetings to be legal? yet, such meetings would be more than mere petitioning, much more: and the author means nothing beyond this; for i say, that in the absence of all other criteria, the only means of judging of a writer's intentions are his words. look then at the words which immediately follow the assertion, that "something more than a petitioning attitude is necessary." if those words had been included in the indictment, this prosecution must have been at an end upon merely reading the charge, and those words, therefore, the association avoided, as cautiously as they would the poison of a viper. they felt, that though the indicted words standing alone might perhaps admit of a doubt for a moment, yet the context completely explained them, and gave an air of perfect innocence to the whole passage. but you shall judge for yourselves: i will read the passage,--"something more than a petitioning attitude is necessary. at this moment i would not say a word about insurrection; but i would strongly recommend union, activity, and co-operation. be ready and steady to meet any concurrent circumstance." now what kind of union, activity, and co-operation does he mean? is it military association, marches, and attack? no. hear the writer's own words again:--"the union rooms at manchester and stockport are admirable models of co-operation, and are more calculated than any thing else to strengthen the body of reformers." for what do the reformers assemble in these rooms? how do they co-operate there? is it to consult how they shall arm and organize themselves, and seize with a violent hand the reform which they despair of gaining by petition? nothing like it. the writer himself still tells you his meaning. "here (that is at the manchester and stockport rooms) children are educated, and adults instruct each other. here there is a continual and frequent communication between all the reformers in those towns." this, then, and no other, is the co-operation which the author intended, and proposes. if any man, taking the paper in his hand and reading the whole paragraph, can say that any thing more is meant, to his reason i should cease to appeal. i should sit down in silent despair of making any impression on such an understanding; but you, gentlemen, i ask you, adding the words which i have read to the broken passage, which is insidiously separated and included in the indictment, can there be a doubt remaining in any rational and unprejudiced mind, that the union and co-operation called for by this address from those who desire reform in parliament, is nothing more than the establishment at other places, of rooms, on the model of those at stockport and manchester; where children and adults are instructed, and information disseminated on the subject of parliamentary reform. and if this is all that is meant, there is an end of this part of the indictment; for it cannot be libelous to recommend in a writing the people to do that, which it is perfectly legal to do. with regard to reform itself, i cannot know, whether any of you are advocates for it or opposed to it, nor is it requisite that i should; i do not ask you to think or say with me, and others, that reform in parliament is necessary, and that nothing but reform can save the country from ruin; all that i ask of you is to allow me and others credit for the conscientiousness of our opinions, and charitably admit, if yours are opposite, that though we may be mistaken in our judgments, we must not of necessity be criminal in our intentions. i leave you and every man to the free exercise of your thoughts, and the free enjoyment of the conclusions to which they lead you. let this liberality be reciprocal, and concede the same freedom to others which you demand for yourselves. i have always thought that a difference in religious and political matters need not and ought not to create hostility of feeling, and sever those, who would otherwise be friends. i myself enjoy the friendship of several, who entertain very different opinions from mine upon those subjects; and yet that difference has not, and never shall, on my part, at least, disturb our friendship. in all questions in which you cannot have mathematical demonstration, there may be fair, honest, conscientious difference of opinion; and you cannot have geometrical proof in questions of religion, politics, and morals. the very nature of the subjects altogether excludes it. to expect it, as bishop sanderson says, would be as absurd as to expect to see with the ear and to hear with the eye. so various are our opinions upon these subjects, that we not only differ from one another upon them, but at different times we find we differ from ourselves; and, as another learned churchman, in more recent times, has said, what could be more unjust than to quarrel with other men for differing in opinion from him, when no two men ever differed more from one another than he at different times differed on the very same subject from himself. under this state of uncertainty in human judgment, i call upon you, and i am sure i shall not call in vain, to be slow to condemn the opinions of others, because they are different from your own; and, therefore, if any of you should think reform in parliament needless, or even dangerous, i still call upon you (though the writer of this paper should be a reformer, and even though he is called in reproach a radical reformer) not to condemn the defendant in this case through prejudice against the author's opinions; but solely to enquire (be those opinions ever so just or ever so absurd) whether he is sincere in entertaining them; for, if he be (as i shall show you presently from the highest authority) the law does not consider him criminal. try him by this test, and this test, and this alone; and then, whatever may be your verdict, you will be free from reproach, and secure to yourselves quiet by day, and sound slumbers by night; for you will have discharged your duty to yourselves, to the defendant, and to the country. with regard, gentlemen, to the other part of the alleged libel, i must bespeak your patience; for i am afraid that i shall be drawn by my comments upon it into considerable length. (i am afraid, gentlemen, i weary you, and i am sorry for it. if i had had leisure, i would have condensed my observations; but, under the circumstances i have disclosed to you, i hope you will forgive me for occupying more of your attention than i would otherwise have done. i really have not had time to be short.) to return to the passage in the paper, which is first charged as a libel: it denies the existence of any constitution in great britain. now whether there be anything malicious and criminal in this, depends entirely upon the meaning which the author attaches to the word constitution. i confess it is a word that gives me a very indistinct and uncertain idea; and i believe that if any of you were now suddenly to ask yourselves what you understood by it, you would find you were not very ready to give yourselves an answer; and if you could even satisfactorily answer yourselves, you would find if you were to go further and question your neighbour, that he would give you a very different definition from your own. in itself it means nothing more than simply a standing or placing together; and it really seems to me rather hard and venturous to indict a man for denying the existence of something (whatever it may be) expressed by the most indefinite term in our whole language. but, if we were agreed upon the ideas which should be attached to the word, let us examine whether, allowing for a certain freedom of expression and the earnest eagerness with which a man who is sincere in his doctrines enforces them in his composition, a writer may not, without being exposed to a charge of criminal intention, assert that there is no constitution in this country. and let us take with us to this examination, that a man is not to be too strictly tied to words, when under the impulse of warm and keen feelings, and when the thoughts flow, as it were, at once from the heart into the pen, he sits down to excite his countrymen to their good, or warn them of their danger. you must not think to bind him down with the shackles of verbal criticism, when he is too intent upon his theme exactly to measure his expressions. now, that the writer of this paper is sincere in his opinions, whatever the quality of those opinions is, it is difficult not to believe. he published his opinions, though he exposed himself to punishment for them, and he perseveres in them while he is suffering a heavy punishment. you can have no more convincing proof of sincerity than this. but, what if a political writer has, in the warmth of composition, asserted that in england we have no constitution, who can misunderstand him? we cannot suppose he meant that there was a dissolution of all law and government; because we know and feel the contrary. few would have occasion to ask him what he meant. if, however, he were asked, he should explain by telling you, that the constitution in theory is very much corrupted from the practice; and i and you, and every person must admit, that the practice has strayed wide from the theory; and, forced to admit this, i assert with a writer, who (whatever was thought of him once, and whilst those who were the objects of his reproach still lived) is now the pride and boast of the country, both for the supreme elegance and the principles of his political writings, that "wherever the practice deviates from the theory so far the practice is vicious and corrupt." now, saying no more than this, and when it would have been the merest stupidity to understand him literally, how can the writer be convicted of a design to bring the government into hatred and contempt, because he has expressed his meaning by saying figuratively "there is no constitution." but he has previously said, that to talk about the british constitution is, in his opinion, dishonesty. i know he has. i did not mean to pass it, i will not, gentlemen, shrink from any part of the passage, for i feel that it cannot bear with any heavy pressure against me. "to talk of the british constitution is, in my opinion, a sure proof of dishonesty." here it will be seen that the only exception that can be taken to this sentence is the mere mode of expression. if a man were to talk to me of the constitution of england, and, by omitting all notice of its aberrations in practice from its theory, by which he would leave it free to me to suspect, that he would insinuate that the theory and the practice were the same, i should certainly say, that he was exhibiting want of candour. i might, perhaps, think dishonesty, rather too strong a term for such conduct; but i should not scruple to say, that he was disingenuous, and he _would_ be guilty of a species of dishonesty; for all the disingenuousness is to a degree dishonest; and, since the meaning is the same, why should we quarrel at a mere difference of expression? the author proceeds to say, "if we speak of the spanish constitution, we have something tangible; there is a substance and meaning as well as sound." so that it is clear he was saying, that we had no constitution in comparison with that just promulged by the spanish nation. the spaniards we know have recently gained by their own glorious efforts, that political liberty to which they had been so long strangers; and their legislature had just published a code of fundamental laws, few in number, but most comprehensive in securing freedom to the people, for whom they are framed. they are (comparatively with the laws of countries, in which the frame of government is old, and complicated) not numerous, but the mind may collect them almost at a glance, and possess itself of them with a single effort of the understanding. in this view of the subject, without doubt, the constitution of spain is tangible; and in this sense he is justified in asserting that our own constitution is not tangible; for is it not notorious that our laws are spread through so many acts of parliament of doubtful and difficult construction, and so many books of reports, containing the common law of the land (and in which there are no few conflicting decisions) that the whole life of a man does not suffice to achieve a knowledge of them. so multifarious and infinite and perplexed is our code, that even amongst those whose profession is the law it is not possible to meet with an accomplished lawyer. the defendant here fainted, and was taken out of court. after the interruption which this circumstance occasioned had subsided, mr. cooper proceeded-- gentlemen, i lament in common with many others that this evil has attended an extended degree of civilization and trade--that our laws have become too numerous and complicated for the capacity of the mind. that they are so, is not my opinion alone, but that of the legislature itself. i believe that a committee of the houses of parliament has been sitting and still sits for the object of reducing our laws to some limit in their number and some order as to their design; without which our constitution, to use the words of the writer, cannot be tangible; a tangible shape, at present it does not possess, for that cannot be tangible which spreads itself over a boundless extent, that eludes, and defies the grasp of the human intellect. having disposed of thus much of this paragraph, i come to the words, on which my learned friend, mr. gurney, laid such extreme stress in his address to you. "our very laws, are corrupt and partial both in themselves, and in their administration. in fact corruption _as notorious as the sun at noon-day_ is an avowed part of the system, and is denominated the necessary oil for the wheels of government. it is a most pernicious oil to the interests of the people." this is strong language i admit, and would perhaps be censurable as imprudent, at least, if the very expressions themselves, which the writer uses, did not guide us directly to the facts to which he alludes, and explain the passage. he alludes most manifestly to the celebrated exclamation of a person at the time that he was in the seat of office, the first commoner of the realm, and who instead of being reproached for his words has retired from his office with the honours which he has merited for his services in it. it transpired in the house of commons, that seats had been trafficked for as articles of sale and purchase for money. mr. justice best.--is that a subject at all relating to the question which is now before the jury? mr. cooper.--my lord, i am going to use the declaration of the speaker, as a matter of history, and to show, that the words charged as criminal were an allusion to it; and if so, were not criminally used. i do not wish, nay i would avoid the introduction of any improper or inflammatory topics. i would not attempt to serve my client by such means. when it was exposed, that there had been certain trafficking for seats in the house of commons, the speaker used these words (and it is to them, i would show the jury, the writer of the paper alludes), "practices are as notorious as the sun at noon-day at which our ancestors would have started with indignation," and that gentlemen-- mr. justice best.--will you allow me to ask you mr. cooper, i want to know where you get that from. mr. cooper.--my lord, from all the reports of the speeches in the newspapers of the day which were never contradicted. mr. justice best.--i beg to state, that, whatever passed in parliament, cannot be questioned anywhere else. whatever the speaker said in parliament, he was justified in saying. but i have no means of knowing, nor have you, whether he ever did say so or not. mr. cooper.--i am not questioning anything he said in the house of commons-- mr. justice best.--if mr. abbot had said it any where else, it would have been a libel on the constitution; if he said it there, we cannot enquire about it; it would be a breach of privilege. mr. cooper.--your lordship asked me, how i came to know that he said so. my lord, i have seen it in all the recorded speeches of the house of commons in the published debates in parliament, and-- mr. justice best.--i say there are no recorded speeches of the house of commons to which we can listen or attend. mr. cooper.--certainly, there are no records of speeches in the house of commons in the sense in which the proceedings of courts of law are records, nor is there in that sense any recorded speech of cicero or of lord chatham; but, my lord, will your lordship say, that i am not entitled in my address to the jury to use that which has been reported as part of a speech of lord chatham or of cicero; because there are no records filed, as in the courts of law, of their speeches! i submit that they are matters of history; and that, as such, i am at liberty to use them. mr. justice best.--i tell you, mr. cooper, what the distinction is. if you publish, that, which may be said to be a speech of lord chatham's, and it may be an accurate report of his speech, you may be guilty of publishing a libel, though the place, in which that speech was delivered gave a liberty to the speech. you know it has been so decided in my lord abingdon's case, who published his own speeches. mr. cooper.--that, my lord, was a libel upon a private individual. i say-- mr. justice best.--i say you have no knowledge of anything which is said in the houses of parliament. mr. cooper.--with great submission i re-urge it as a matter of history, and as such i would use it whether the fact is ten years old or ten thousand, i submit makes no difference. mr. justice best.--mr. cooper, i have told you my opinion; if you don't choose to submit to it, the best way will be to go on, perhaps. mr. cooper.--with the utmost deference to your lordship-- mr. justice best.--the court of king's bench has decided this very point, within the last two terms, against what you are contending for. if your own opinion be the better one, proceed. mr. cooper.--gentlemen, i was going to say, when the speaker of the house of commons exclaimed (i will not repeat particularly upon what occasion) that our ancestors would have started with indignation at practices which were "as notorious as the sun at noon-day," can you have any doubt in your mind that the writer of this pamphlet alluded to that exclamation? why look at the passage, see, he uses the same words. "corruption is as notorious as the sun at noon-day" is his very expression. he is citing the speaker's own words, and cannot but be supposed to be speaking of the very same facts. it was proposed, on that occasion, to impeach a nobleman, whom i will not name and need not, for those practices. this however was resisted by almost all, and even by some who were friendly to parliamentary reform, and politically adverse to the noblemen, to whom i allude, not, indeed, upon any pretext of his innocence of the practices, charged against him; but on the sole ground that those practices were so general and notorious that they would condemn themselves in sentencing him; and among so many guilty, it would be unjust to single him alone for punishment. yes; although they were practices, at which our ancestors would have started with indignation, they were the practices of numbers, and the practices were as notorious as the sun at noon-day; and, therefore, the proposition of impeachment was rejected, and rightly; for as it has been said by the first speaker of all antiquity, we cannot call men to a strict account for their actions, while we are infirm in our own conduct. if this is the state of one branch of our legislature, and if it is avowed, and by those who would conceal it, if concealment were possible (but it would be as easy to conceal the sun). good god! shall a man be prosecuted and pronounced guilty, and consigned to punishment for affirming that our laws are corrupt; that there is corruption in the system, and that corruption is an avowed part of that system? when in so affirming he only echoes the exclamation of the speaker himself, that "practices, at which our ancestors would have started with indignation, were as notorious as the sun at noon-day?" why, if as the speaker declared, such practices exist, and affect the most important branch of the legislature, i myself say, that there is corruption in the very vitals of the constitution itself. in such a state of things, to talk of the constitution, is mockery and insult; and i say there is no constitution. what, then, has the writer of this pamphlet said more than has been avowed by the highest authority, and everybody knows? and now, can you lay your hands on your hearts, and by your verdict of guilty send the defendant to linger in a jail for having published what the author has, under such circumstances, written? having thus concluded my observations on the passages selected from this paper for prosecution, i will, for i have a right to read it all if i please, direct your attention to another part of it. let us examine whether other passages will not convince us, that (though he should be mistaken in some of his opinions) the whole was written with a single and honest intention. i myself never read a paper, which, on the whole, appeared to be written with more candour. there is an openness that does not even spare the writer himself. indeed, with regard to his opinions, peculiar and mistaken as he may be, he seems himself, sincerely to believe in them. he is now suffering for those opinions, and suffering with a firmness, which to those who think him wrong, is stubbornness; and, thus, he affords another proof of the extreme impolicy of attempting to impose silence by prosecutions, and extort from the mind the abjuration of opinions by external and physical force. it never succeeds; but, on the contrary, works the very opposite effect to that which is its object. as the author from whom i have just now cited says, with extreme force and equal beauty, "a kind of maternal feeling is excited in the mind that makes us love the cause for which we suffer." it is not for the mere point of expression that it has been said, the blood of the martyrs is the seed of the church. it is not theological doctrine alone, that thrives and nourishes under persecution. the principle of the aphorism applies equally to all opinions upon all subjects. there is widely spread through our nature an inclination to suspect that there is a secret value in that from which others attempt to drive us by force; and from this, joined to other powerful motives, the persecution of men for their tenets, whatever they may be, only draws their attachment closer, and rivets their affections to them. every effort to make them abandon the obnoxious doctrine renders them more steadfast to it. the loppings, which are designed to destroy, serve but as prunings, from which it shoots with increased vigour, and strikes its root still deeper. has it not always been seen, that persecution has bred in men that stubborn resolution, which present death has not been able to shake; and, what is more, an eagerness to disseminate amongst others those principles for which they have themselves been prosecuted and pursued. i therefore, from my very soul, deprecate every species of persecution on account of religious and political opinions, not only from its illiberality, but bad policy; and i am full of hope, that you will by your verdict to day show, that you have an equal aversion to it. to recur, gentlemen, to the pamphlet; i submit to you that there is a general air of sincerity in the language of the writer throughout the composition, which obliges us to believe, that, however mistaken you may think him in his opinions, he is honest in his intentions. he says in another part of the address "every government must derive its support from the body of the people; and it follows, as a matter of course, that the people must have a power to withhold their supplies." which is very true: for, where there is a shadow of political liberty, a revenue can only be raised by taxes to which the people have consented: it being allowed that where there is taxation without representation tyranny begins. now, if the writer really believes that there are corrupt practices in the government, who can blame him, for proposing (by abstinence from those articles which are taxed and yield a revenue so large that it supports a system of misgovernment) to compel our rulers, by a diminution of their means of undue influence to a regard to economy and a just administration? i know, indeed, that this doctrine is considered offensive; nor am i prepared to say with confidence that under the wide construction which has been given to the law against conspiracy, persons who were to combine to force such a change by abstaining from all exciseable articles might not be indicted for it as a conspiracy. it may, for aught that i know, be even indictable to unite and desist from using tea, tobacco and snuff to coerce the government into reform by a reduction of the revenue raised from those articles; but you are not sitting there to try an indictment for a conspiracy; and, therefore, though this passage may not be pleasing, i read it, without hesitation, because it leads to others, which i think demand your consideration and attention. "we must deny ourselves, he proceeds to say, those little luxuries in which we have long indulged. why not? who gains, and who loses by this denial? we do not rob ourselves, we only check our passions; and, in doing this, we strengthen both our bodies and our purses. i would appeal to those, who, for the last year, have had the courage and the virtue to abstain from the use of malt and spirituous liquors, foreign tea and coffee, tobacco, snuff, &c., whether they do not feel satisfaction from the change of habit; and whether they are not better in health and pocket, without the use of these things." this, gentlemen, is a sermon on temperance, and i wish it were generally followed. i apprehend that this is not only innocent, but highly meritorious. for my own part i shall maintain the opinion (though ten thousand mandevilles should write, and imagine they have proved private vices public benefits) that it is infinitely more important and beneficial that the mass of the people should be temperate and healthy, though poor, than that an immense revenue should be collected from their addiction to sensual pleasures and vicious luxuries. i say vicious, because all moral writers concur in calling those sensualities vices, as free indulgence in them leads to a state of total dissipation of mind under which scarcely any profligacy seems a crime. the writer continues: "there are a variety of other things which are heavily excised, the use of which might be prudently dropped; and which are not essential either to the health or comfort of mankind. speaking for myself, i can say, i do not recommend more than i practise; and that my food for the last year has consisted chiefly of milk and bread and raw native fruits. i have been fatter and stronger than in any former year of my life; and i feel as if i had obtained a new system by the change. _my natural disposition is luxurious_, and under a better system of government, or when this rational warfare was not called for, i should at all times live up to my income." and here, gentlemen, i beg you to mark, that so unreserved, so much in earnest is the writer in his object, that he does not attempt even to conceal his own faults, and weakness. i ask, whether you have ever found men, who were acting and writing with duplicity and sinister intentions, reproach or expose themselves? but the writer of this paper practises no reserve; he conceals nothing, though the disclosure should be against himself, but pours out all himself as plain, as dowright shippen, or as old montaigne. he concludes this exhortation to temperance with this sentence, "shrink not then you male and female reformers from this virtuous mode of warfare; for to conquer our injurious habits and our enemy at the same time is a double conquest, to obtain which both man and woman and child can very properly assist." i read this conclusion of the paragraph, gentlemen, and i beg your attention to it, because it makes it manifest that the change which the writer proposes to compass is a change by a moral operation through legal and peaceful means; and that he never dreamed of inculcating, as it is insinuated, any appeal to violence and arms. i have now, gentlemen, concluded all the particular observations which i had to address you upon this paper; and having shown you that by the least liberal construction, no criminality of intention can be imputed to the author, how can i doubt of your acquittal? for it is your duty to construe the author's words so as to give them an innocent meaning if they will bear it, and not come to a conclusion of guilt from them unless you shall be convinced that they will not possibly admit of any other than a criminal sense. that he had no criminal design, is apparent enough, even from the indicted passages; and by reading the context is put beyond the possibility of a doubt. there are many other passages as well as that, which i have read, which tend equally to the inference of the sincerity with which the whole paper was written, but which i will not consume your time in reading, as you will have the whole before you when you deliberate on your verdict, and they must themselves strike your attention. now, gentlemen, i cannot tell, how you feel, but i have no opinion more deeply impressed on my mind than that the prosecution of such political papers as this before you, as state libels, is perfectly unnecessary; and, so far from doing good, is, if any mischief can be produced by such writings, mischievous. prosecution excites the public regard, and a curiosity that will not rest till it is gratified, towards that which, under silent neglect, would hardly gain attention; if indeed, it did not drop quite dead-born from the press. but i deny wholly that any political writings, whatever their nature, have done or ever could do any harm to political society. let those who advocate the contrary opinion show you a single instance of a state injured or destroyed by inflammatory political writings. the republic of athens was not thrown down by libels: no--she perished for want of that widely diffused excitement to courage, and patriotism, and virtue, which a press perfectly free and unshackled can alone spread throughout a whole people. she was not ruined by anarchy into which she was thrown by seditious writings, but because, sunk in luxury and enervated by refinement, it was impossible to rouse the athenians to the energy and ardour of facing and withstanding the enemy in the field. rome too--as little was her gigantic power levelled with the dust by libels, but perished from the corruptions of the tyrannical government of the emperors, which drained the nation of all its ancient virtue, and bred the slavery which produces an utter debasement of the mind (and which never could have been, if a free publication of political opinion had been suffered), and thus she fell an easy conquest and prey to the barbarians and goths. both these renowned states fell, because their governments and the people wanted the goad of a free press to excite them to that public spirit and virtue, without which no country is capable of political independence and liberty. how our ears have been dinned with the french revolution, and how often have we been gravely told, that it was caused by the writings of voltaire, rousseau, and helvetius. ridiculous! i have read the history of those times and have read it very differently. i am forced to understand that the inextricable and utter embarrassment of the french finances, the selfish and insolent luxury of the nobles, the desperate wretchedness of the lower orders of the people, and the profligate licentiousness of the court, were the causes and the only causes of that great event. if the finances of that country had been in order, the nobles moderate, the poor unoppressed, and any public spirit in the government, voltaire, and helvetius, and rousseau, might have racked their brains for thought, and written themselves blind, before they would have raised a single arm, or even excited a single voice to exclaim for change. a perfect freedom of the press would, indeed, have prevented the causes which roused the people to assert themselves; but the causes once in existence, all the writers in the world could not one moment have either retarded the revolution or accelerated it. it is not the representations of a political writer that can alter the nature of things. whose ingenuity, and wit, and eloquence, will persuade me that i am cold when i am warm; that i am hungry when i am full; a slave when i am free; and miserable, when i feel myself happy? while such is my state, what writings would drive me into insurrection? and if the contrary is my condition, what stimulus could i want to free myself from it? what persuasions could possibly even delay my utmost efforts for a change? it is not by the prosecution of political libels that the stability of a government and domestic peace is ever secured. no; let the government pursue its only end, the public good, and let every man, or at least a large majority, have more or less an interest in the preservation of the state, and then all the writers in the country, from the highest down to the obscurest corners of grub-street, may wear their fingers to the roots of the nails with their pens, before they will work the slightest discontent in the public or change in the government. nothing, gentlemen, is more common with writers and speakers, than to discourse of states by figures drawn from the government of a ship; and i will tell you what i once heard from a friend of mine who has served his country in our navy, and which at the time most forcibly struck my mind. "when i was stationed in the mediterranean (he said, speaking of the occurrences of his professional experience) we made captures of the vessels of all countries except the greeks, but we never captured them; for they were always vigilant, active, and brave. we never surprised them; if we chased them, they escaped us; and if we attempted to cut them from the shelter to which we had driven them, we were repulsed." what created this difference? by the rules of navigation amongst the greek islands, every man, from the captain down to the lowest cabin-boy, has, more or less, a share in the vessel. they watched, therefore,--they laboured and fought for their own interest and property. let those who sit at the helm and govern us imitate this policy. let them extend the elective franchise; let them restore us to a condition in which industry and skill may find employment and be secure in their gain. give men an interest and ownership in the state, and it shall never be upset by libels; not a seditious or mutinous voice shall be heard; and what foreign enemy shall dare to lift a hand against us? but keep the people excluded from their share in the representation, and pressed down by taxation, and millions of prosecutions against libels will not save the country from sinking in ruin. let me now, gentlemen, call your attention back to the argument i used almost at setting out in my address to you, by which i attempted to maintain that you are not bound, whatever you may judge the intention of the writer to have been, to pronounce a publication a libel by your verdict, if you should be of opinion that such a publication cannot be mischievous, and that prosecution of it is unnecessary. if it can do no harm, it is no nuisance at common law to have written a paper, whatever its nature may be, and if it could be no nuisance, you are bound in duty to acquit the defendant, who is only the publisher. the doctrine for which i am contending with regard to this paper, has been acted upon by the government of one free country, with regard to all political writings, whatever their intention or nature. the legislature of the state of virginia has actually _legislated against_ such prosecutions, and declared them totally unnecessary. mr. justice best.--that is not the law of this country. mr. cooper.--i only use it my lord as part of my speech in argument. mr. justice best.--i will tell you what i am bound to tell the jury. i shall tell them that we have nothing to do here with what may be expedient, we are not legislating here--the question is whether this is a proper prosecution? mr. cooper.--i feel that it is exceedingly important to use as matter of argument, and as a part of my speech. if your lordship stops me i know that it will be my duty to submit. mr. justice best.--all this is only drawing them away from the question they are to consider. with the propriety of instituting the prosecution they have nothing to do; the only questions they have to determine, are--is that paper a libel, and has the defendant published it? an act of the assembly of virginia has no validity in this country. mr. cooper.--my lord, i do not cite it as a statute of this realm to which we are bound to pay legal attention-- mr. justice best.--we are bound to pay no attention to it. mr. cooper.--my lord, i only use it to show that other men have been of the opinion which i have expressed to your lordship and the jury. if your lordship insists on my not addressing myself to the jury upon it, i know too well the deference that is due from me to the bench to persevere in attempting it. mr. justice best.--no, i don't insist upon it. but, mr. cooper, can you deceive yourself so much as to think this has anything to do with the question? i shall tell the jury to pay no attention to it. mr. cooper.--your lordship will make any observations your condescension may lead you to make, as well on this as on any other part of the defence. i believe the course which i wish to take was taken on a similar occasion by a man who united the soundest and correctest judgment with the brightest imagination--i mean lord erskine--he-- mr. justice best.--i knew him for thirty odd years at the bar, and i never in all my life knew him address himself to points such as these--that is all i can say. i know what is due to the liberty of the bar, and i shall cherish a love for its freedom to the latest hour of my life. mr. cooper.--if your lordship refuses me-- mr. justice best.--no, i don't refuse you. mr. cooper.--i think it necessary to my case. the preamble is--(gentlemen, i am sorry to detain you, but i have a most important duty to discharge. if in addressing you, i am taking a course which i ought not, i assure you it is an error of judgment and not of design. i declare most sincerely, that i am addressing to you arguments which i should attend to if they were addressed to myself in such a case. his lordship will have a right to make what observations he pleases, and of course i offer this and every other argument to you liable to the honour he may confer upon me of condescending to notice anything i have said or may say. you, gentlemen, will, i know, regard my observations or arguments solely as you think them forcible or weak; if they are the former you will attend to them, if the latter reject them. and with this observation i shall now proceed to read to you the preamble to the act of the legislative assembly of virginia.) "it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order, and that truth is great and will prevail if left to herself, and that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless, by human interposition disarmed of her natural weapons, free argument and debate: errors ceasing to be dangerous, when it is permitted freely to contradict them." thus, you see, by an act of the legislature of that country, passed by those who had all the knowledge of history before their eyes, and ample experience in their own times, i am fully supported in the position that prosecutions of this kind are not only useless but hurtful. by free argument and debate errors cease to be dangerous, if they are not exploded; but attempts to stifle even errors by power and punishment, provoke a stubborn adherence to them, and awake an eager spirit of propagation. if erroneous positions are published, meet them by argument, and refutation must ensue. if falsehood uses the press to promulge her doctrines, let truth oppose her with the same weapon. let the press answer the press, and what is there to fear? shall i be told that the propensity of human nature is so base and evil that it will listen to falsehood and turn a deaf ear to truth? to assert so is not only scandalous to human nature, but impious towards the creator. we are placed here imperfect indeed, and erring; but still with preponderance of virtue over vice. the deity has sent us from his hands with qualities fitting us for civil society: it is our natural state; and we know that civil society is sapped by vice and supported by virtue: if, therefore, our disposition to good did not redound over the evil a state of society could not be maintained. it would indeed be an impiety little short of blasphemy to the great being who has created us, to say, that mankind at large are eagerly inclined to what is vicious, but turn with aversion from what is moral and good. yet this, whatever they may avow, must be the opinion of those who say that good doctrine from the press cannot be left with safety to oppose bad. now, gentlemen, not only am i not without the corroboration of this enactment of the legislature of virginia for my humble opinions, but the act of virginia is itself not without the very highest human sanction, as i shall show you by a passage which i am about to cite from the work of a man, with whom, in my mind, the writings of all other men are but as the ill-timed uninformed prattlings of children--a man from whom to differ in opinion is but another phrase to be wrong. need i, after this, name him? for was there ever more than one man who could be identified with such a description? i mean locke, the great champion of civil freedom. in this work on government he says-- "perhaps it will be said, that the people being ignorant and always discontented, to lay the foundations of government in the unsteady opinion and uncertain humour of the people, is to expose it to certain ruin, and no government will be able long to subsist if the people may set up a new legislature whenever they take offence at the old. to this i answer, quite the contrary, people are not so easy got out of their old forms as some are apt to suggest; they are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to, and if there be any original defects or adventitious ones introduced by time or corruption, it is not an easy thing to be changed, even where all the world sees there is an opportunity for it. this slowness and aversion in the people to quit their old constitutions has in the many revolutions which have been seen in this kingdom still kept us to, or, after some intervals of fruitless attempts, still brought us back again to our old legislature of king, lords and commons." such is the opinion of this greatest of men, formed on the most consummate wisdom, enriched by observation, during times which afforded no small degree of experience. upon his authority, then, that men are not to be excited to sudden discontent, and passion for hasty change, i assert, that there is no danger to be apprehended from the freest political discussions; and consequently no need of their condemnation by a jury's verdict of guilty. milton, too, the greatest of poets, and hardly less a politician, was of the same sentiment as to the firmness of the people, and thought it might safely be left to them to read what they pleased, and to their reason and discretion, what to object and what to adopt, without any other interference. it is his areopagitica, in which he contends for unlicensed printing--an oration addressed from his closet to the parliament of england, and which has been cited by lord mansfield himself, on the bench. his words are--"nor is it to the common people less than a reproach; for if we be so jealous of them that we cannot trust them with an english pamphlet, what do we but censure them for a giddy, vicious and ungrounded people? that this is care or love of them we cannot pretend." such are the sentiments of milton, in that noble effort of united argument and eloquence, which i should not fear to hold up against the most splendid orations of antiquity. having thus, i submit, made good my position, that political papers, whatever their description, can produce no mischief, and that there is no need to prosecute them; i will now show you, that not only can publications, containing false opinions, do no mischief, but that they actually produce benefit, and that therefore not they, but the prosecutions, which would check, and stifle them are injurious. is it meant to be contended that error is stronger than truth; folly more powerful than reason, and irreligion than religion? no man, in his senses, will maintain such propositions. on the contrary, error has always been dispersed before reason, and infidelity by religion. the appearance of error and falsehood has always roused truth to rise to the work of refutation. even the sublime truths of religion have never been so completely demonstrated, and conviction and faith have never been so firmly fixed in the minds of men as by those books of controversy which have been drawn forth by attacks upon christianity; and which, but for the publications denying the authenticity of the religion, would never have been in existence; but, invaluable as they are, the world must have wanted them. as to political writings, is it not notorious, that the very best expositions of the nature of civil society and government, are solely to be ascribed to the conflicts of reason with the false and loathsome doctrines of passive obedience and divine indefeasible right, which found their way into the world by the freedom of publication? even that great work, the treatise of locke on government, itself, which is justly regarded as the political bible (i mean no irreverence) of englishmen, would never have seen the light, but that it was written to refute the base and detestable tenets of barclay and filmer. their political treatises were false and slavish, and even illegal; for they were the same for which dr. sacheverel was afterwards impeached by the parliament; and which he would not have been if it had not been an offence to maintain and publish such opinions. yet were not their falsehoods and errors useful and beneficial? did they not provoke locke to rise in all the majesty and strength of truth and cast down filmer and his doctrines into the lowest abyss of contempt, never again to emerge? see, now, if the government of those days had prosecuted barclay and filmer, and suppressed their books by power instead of leaving them to be demolished by reasoning, what would have been the consequence? the mighty mind of locke would not have been called into action, and the total refutation and utter explosion of filmer would not have been effected. by criminal prosecutions the odious positions would only have been suppressed for a time, not as they now are, extinguished for ever; and the base and degrading doctrines of passive obedience and divine right, which are the stigma of the times in which they prevailed, might have been the disgrace and reproach of ours. but supposing that prosecutions for political writings were in any respect politic, useful, or wise, will they prevent their publication? no more than your strong and violent revenue laws have been able to suppress the rise of illicit stills in ireland and scotland. even if by dint of the terror of prosecutions the press in this city could be reduced to such awe and subjection, that everything that issued from it was as flat and unmeaning as the most arbitrary government could desire, its inhabitants would still gratify their thirst for political discussion and information. they would compose and print as they distil, in the depth of deserts and the solitude of mountains, and under the cover of darkness drop the pamphlets into the houses, or scatter them in the streets, and the obstacles to circulation will serve only to inflame the desire for possession. this would be the result of a determination to suppress everything in the shape of political discussion that did not please the humour of a set of men in authority, while by far the greater part if not all those publications which inspire so much apprehension, would if passed in silence either never be noticed, or read their hour and forgotten. it is these public trials that give them importance and notoriety. they would not draw an eye but for the glare thrown on them by these luminous prosecutions. these indictments (though i would not willingly be ludicrous on so serious an occasion) force into my mind the course once adopted with regard to houses of ill-fame, by the society for the suppression of vice. they paid men who were fixed before the doors of such houses with huge paper lanterns, on which there was painted in large illuminated letters, "this is a house of bad fame." but, instead of causing a desertion of the houses, they operated as an advertisement and an allurement, and increased the numbers who resorted to them. those who had before frequented them did not discontinue their visits, and those who were ignorant of such places and seeking them, on seeing the emblazonment by the doors, cried out--that is just what we wanted, and turned in. the society at last discovered their mistake. they found that they were encouraging what they wished to abolish, and discontinued the plan. my learned friend, who is counsel for the society, can confirm me when i assert that they do not now carry it into practice. precisely the operation that these lanterns had with regard to houses of ill-fame, have these trials upon obnoxious writings. they are illuminated by the rays which are shed on them by these proceedings. they attract every eye, and are read in the light (as it were) of the notoriety which is thus thrown upon them by these prosecutions. gentlemen, it just occurs to my recollection, that i have omitted in its proper place something which i ought to have mentioned, and urged to you, and i beg your indulgence to supply the omission. you will remember that in one of the passages charged as libelous, the words "i will not, now, say a word about insurrection" are to be found, and my learned friend, mr. gurney, suggested to you that it was an excitement, at some future period, to insurrection. i, gentlemen, repeat that these words are not only no excitement to insurrection, but an express disavowal of it. if you infer that he means insurrection at any future time, you must also suppose that the insurrection he contemplates is conditional, and in speculation of conduct in the government that may justify it. is there any extrinsic evidence to show that he means something beyond the words? none--and the words themselves are a literal disclaimer of any intention of insurrection. and it is by the words then that you will judge of his design, and not take it from the vague and partial declamation of the counsel for the prosecution, whose opinions ought no more than my own, to have any weight with you, except as they are supported by reason. if you can find any such meaning as an intention to excite insurrection in the words, so much the worse for the defendant; but, if you cannot, and i am sure you cannot, then you will not hesitate to adjudge the words innocent. what! may not i, or any man, say there is no occasion for insurrection at this moment, but there may be at a future time? good god! are there no possible situations in which resistance to a government will be justifiable? there have been such situations, and may again. surely there may be. why, even the most vehement strugglers for indefeasible right and passive obedience have been forced (after involving themselves in the most foolish inconsistencies, and after the most ludicrous shuffling in attempting to deny it) to admit, that there may be such a conjuncture. they have tried to qualify the admission indeed--admitted, and then retracted--then admitted again, and then denied in the term, what they admitted in the phrase, till, as you shall see, nothing ever equalled the absurdity, and ridiculousness of the _rigmarole_ into which they fell, in their unwillingness to confess, what they were unable to deny. yes, gentlemen, there are situations in which insurrection against a government is not only legal, but a duty and a virtue. the period of our glorious revolution was such a situation. when the bigot, james, attempted to force an odious superstition on the people for their religion, and to violate the fundamental laws of the realm, englishmen owed it to themselves, they owed it to millions of their fellow-creatures, not only in this country, but all over the world; they owed it to god who had made them man to rise against such a government; and cast ruin on the tyrant for the oppression and slavery which he meditated for them. locke, in the work from which i have already cited to you, in the chapter entitled, "on dissolution of government," contends with barclay, an advocate for divine right and passive obedience, and refutes him on this very question, and proves that subjects may use force against tyranny in governments. he cites barclay who wrote in latin, but i read to you from the translation. "wherefore if the king shall be guilty of immense and intolerable cruelty not only against individuals but against the body of the state, that it is the whole people, or any large part of the people, in such a case indeed it is competent to the people to resist and defend themselves from injury, but only to defend themselves, not to attack the prince, and only to repair the injury they have received; not to depart, on account of the injury received from the reverence which they owe him. when the tyranny is intolerable (for we ought always to submit to a tyranny in a moderate degree) the subject may resist with reverence." in commenting on this passage, mr. locke, mixes with his reasonings the ridicule it deserves:--"'he (that is barclay) says, it must be with reverence.' how to resist force without striking again, or how to strike with reverence, will need some skill to make intelligible. he that shall oppose an assault only with a shield to receive the blow, or in any more respectful posture without a sword in his hand, to abate the confidence and force of the assailant will quickly be at the end of his resistance, and will find such a defence serve only to draw on him the worse usage: this is as ridiculous a way of resisting, as juvenal thought of fighting, 'ubi tu _pulsas_, ego _vapulo_ tantum,' and the result of the combat will be unavoidably the same as he there describes it. libertas paupcris haec est. _pulsatus_ rogat, et _pugnis_ concisus adorat, ut _liceat_ paucis cum dentibus inde _reverti_. "'this is the liberty of the slave: when beaten and bruised with blows, he requests and implores as a favour to be allowed to depart with some few of his teeth.' this will always be the event of such an imaginary resistance, when men may not strike again. he, therefore, who may resist must be allowed to strike. and then let our author, or anybody else, join a knock on the head, or a cut on the face, with as much reverence and respect as he thinks fit. he that can reconcile blows and reverence may, for aught i know, deserve for his pains, a civil respectful cudgeling whenever he can meet with it." so much, gentlemen, for the doctrine of non-resistance. therefore the author of this paper in stating that there may be times when insurrection may be called for, has done no more than a hundred other writers, and among them locke, have done before him. locke proceeding still with the discussion of the question, whether oppressive governments may be opposed by the people, and, having concluded in the affirmative, says, "but here the question may be made, who shall be judge whether the prince or legislature act contrary to their trust. this, perhaps, ill affected and factious men may spread among the people, when the prince only makes use of his just prerogative. to this, i reply, the people shall be judge; for who shall be judge whether the trustee or deputy acts with and according to the trust that is reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him when he fails in his trust. if this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment when the welfare of millions is concerned, and also when the evil if not prevented is greater, and the redress very dear, difficult, and dangerous." locke, therefore, most unambiguously concludes that insurrection may be justified and necessary. a greater and more important truth does not exist, and we owe its promulgation with such freedom and boldness to that most extraordinary and felicitous conjuncture at the revolution which called upon us to support a king against a king, and obliged us to explode (as has been done most completely) the divine right and passive obedience under which one king claimed, to maintain the legal title of the other. locke goes on further to say-- "this question, who shall be supreme judge? cannot mean that there is no judge at all. for where there is no judicature on earth to decide controversies among men, god in heaven is judge. but every man is to judge for himself, as in all other cases, so in this, whether another hath put himself in a state of war with him, and whether, as jeptha did, he should appeal to the supreme judge." i beg that i may not be misinterpreted, i hope it will not be said i mean to insinuate that any circumstances at present exist to justify insurrection. i protest against any such inference. nothing can be further from my thoughts, and i regret that such an extravagant mode of construing men's words should be in fashion, as to render such a caution on my part needful. all i say is, that the writer of this paper spoke of insurrection conditionally, and prospectively only, and, in doing so, has done no more than locke, in other terms had done before him. gentlemen, i have but a very few more arguments to address to you, and i am glad of it, for i assure you, you cannot be more exhausted in patience than i am in strength. i now, gentlemen, ask you even admitting that the _style_ and manner, in which the opinions of the writer of this address are expressed, should verge upon intemperance and impropriety, would you venture, merely upon the ground of such a defect in style, to say the defendant is guilty; when the very same opinions in substance, expressed in a different style, would be innocent and legal, and unquestionable? gentlemen, i have heard it asserted, with a surprise that i cannot express, that if persons will write in a moderate, delicate, temperate, and refined style they may discuss questions which become exceptionable and forbidden if they are handled in a coarse and illiberal style. now i should have thought, that the very reverse of this would have been the case; for by a refined and guarded style you may insinuate and persuade--by vulgar coarseness and intemperance you disgust and nauseate. to say that a political paper of the very same sentiments, and principles would be innocent, written in a calm and delicate style which would be criminal, written in an abrupt, vehement and passionate manner, is to remove guilt from the thought and conception and substance of a writing, and impute it to the medium only of the thought, the mere expression. so that upon such a rule and principle of decision, if i were to heap violent and gross abuse even on abershaw, or any other highwayman, who was deservedly hanged a hundred years ago, i might actually be indicted for a libel. such a course, gentlemen, would be to degrade your judgments from a decision upon the thought, and opinions (which, are alone important) of an author to a criticism and condemnation of his words, and would be waging war with the vocabulary and the dictionary, a degradation, to which i trust, your reason will never submit. a difference of style in political writings is much too refined and subtle to found a distinction upon between innocence and crime. difference of style is so minute, and is a subject of such nice discrimination, that it would not only be difficult, but almost impossible, and most unsafe for any jury to attempt by it to draw a line between guilt and innocence; besides, what would be the effect upon the press? if i were told, when i sat down to write upon any topic, that i must treat it in a given style, and no other, or risk prosecution, i should be confounded, and throw down my pen without writing at all. at least i should either not write at all, or write in such a manner that i might as well not have written at all, for i should most certainly never be read. good god! to leave a man the alternative of a particular style, or an indictment for a libel, when he sat down to compose, would be like placing a torpedo on his hand; for you cannot, as was most forcibly, and beautifully said by lord erskine, "expect men to communicate their free thoughts to one another under the terror of a lash hanging over their heads;" and again, on another occasion, "under such circumstances, no man could sit down to write a pamphlet, without an attorney at one elbow, and a counsel at the other." gentlemen, if you, sitting coolly and dispassionately to give a deliberate judgment upon the manner and style of an author's composition would find it difficult to form a certain judgment, how great, how insuperable, must be the difficulty of the writer himself. how is he when he sits down intent on his subject and when vehement and ardent (as he must be, if he is in earnest, and that he may persuade others of that, which he feels himself) and his ideas are thronging and pressing upon him for expression--how is he to be select and cautious and measured in his words? would you not by subjecting the freedom of political discussion to such a restriction run the hazard of destroying it altogether? upon this question of the difficulty of distinguishing between propriety and impropriety in the style of writings i can not abstain from reading to you a passage from a speech of lord chesterfield, which was quoted by lord erskine, when he was at the bar, upon a trial for libel. on that occasion, indeed, lord kenyon told him, that he believed it flowed from the pen of dr. johnson, and _that_ lord erskine took as a valuable concession; for from the frame of mind and bias of that learned man on political subjects, he was certainly not a friend to popular liberty, while lord chesterfield, i believe, acted without deviation upon whig principles, and was a constant advocate for the freedom of the press. from dr. johnson, however, it was most important, as it had the effect of an unwilling admission, and if lord kenyon was correct in attributing the speech to dr. johnson, its excellence is to be inferred from the fact, that lord chesterfield never discountenanced the opinion that he was its author. the passage is this:-- "one of the greatest blessings we enjoy, one of the greatest blessings a people, my lords, can enjoy, is liberty; but every good in this life has its alloy of evil; licentiousness is the alloy of liberty; it is an ebullition, an excrescence--it is a speck upon the eye of the political body: but which i can never touch but with a gentle, with a trembling hand, lest i destroy the body, lest i injure the eye upon which it is apt to appear. "there is such a connection between licentiousness and liberty, that it is not easy to correct the one, without dangerously wounding the other: it is extremely hard to distinguish the true limit between them: like a changeable silk, we can easily see there are two different colours, but we cannot easily discover where the one ends, or where the other begins." mr. gurney.--you should state, in fairness and candour, that that was an argument against licensing. mr. cooper.--i know it was. the argument contends for the difficulty, next to impossibility, of distinguishing where that which is allowable ends, and that which is licentious begins. a licenser could not tell where to allow, and where to object, yet a licenser, gentlemen, would have had just the same means of judging that you possess; and if he could not tell with distinctness and certainty what to let pass and what to stop, how, with no greater power, and means of judgment, can you? with what justice, then, can it be objected to me, that i have shown any want of candour in not stating the precise question on which the argument was delivered, when in the principle there is not a shadow of difference? my application of the passage is therefore perfectly just. gentlemen, i have only one more quotation to trouble you with before i conclude. that is the opinion of lord loughborough, afterwards chancellor of england. i do not know in what case, or on what occasion it was delivered, but i believe in a judgment on a case of libel. "every man (says that judge) may publish at his discretion, his opinions concerning forms and systems of government. _if they be weak and absurd_, _they will be laughed at and forgotten_; _and_, _if they be_ bona fide, _they cannot be criminal_, _however erroneous_." this is the opinion of a great judge upon political publications, sitting under the authority of the king himself to administer the laws; and to apply this authority to the paper before you, what reason on earth have you to suppose, that the writer from the beginning to the end was not bona fide in his opinions; and then, however erroneous they may be, i say, under the sanction of lord loughborough himself, they are not criminal. having, gentlemen, submitted these observations to you, i declare most unfeignedly that i have uttered them with the most conscientious belief, that they are founded in reason, justice, and truth. i have not advanced a proposition nor uttered a sentiment as an advocate, which i am not prepared to avow and maintain as a man. if i am wrong in my judgment, you will correct me. you will, however, consider my reasonings, and the passages which i have cited to you in support of them, and judge if i have not maintained the propositions, which i have submitted to you. no argument can be drawn from any of the observations, which i have addressed to you for impunity to libelers and defamers of private character. no, they are justly called assassins; for they who destroy that without which life is worthless are as guilty as those who destroy life itself, and let them feel the heaviest vengeance of the law. private persons may be attacked and have no power to defend themselves. they may not only be unable themselves to answer published calumnies against their character; but also unable to employ those who can. but such can never be the case with those who administer the affairs of the nation. all the wealth and power of the country is in their hands. they may hire a thousand writers to support their measures, and vindicate their characters, and they will not want volunteers; they can command the press; and, for their protection, it is sufficient, that the press should be opposed to the press. private individuals cannot command the press; and, therefore, let slanderers of private character suffer the utmost punishment that the law can inflict. and now, gentlemen, i ask you to give me your verdict for the defendant. i make no attempt to move your compassion. i will not urge you to consider that the defendant is a woman, and unable, from the tenderness of her sex, to sustain hardship; nor call upon you to remember, that which you cannot but know, that she has already been convicted upon one prosecution, for which she will, without doubt, be the subject of severe punishment. i ask it on the higher ground of justice; though, i confess, that i hope and wish it with more anxiety, because i trust it will send these embodied prosecutors, this constitutional association, as (by the figure, i suppose, of _lucus a non lucendo_) they entitle themselves, into that obscurity to which they properly belong, or at least if they will obtrude further upon the impatience of the public, let them carry with them the ill omen of a failure in their first attempt to insinuate, either that the english constitution is deficient in its establishment of responsible law officers of the crown, or that those officers are incapable of fulfilling the duties of their station. it is said, and i hope truly, that the country is gradually recovering from the distress, under which it has so long suffered, and that plenty and prosperity have again begun to flow in upon us. may it be so! but we shall never derive enjoyment from any improvement in our physical condition; unless it is accompanied with domestic tranquillity. to be happy we must be at peace amongst ourselves; and nothing will have the effect of allaying the heart- burnings of political animosity and uniting us, as it were, in bands of harmonious brotherhood, so much as a discouragement of these party prosecutions, which, while they kindle feelings of indignation, and hostility, and hatred in large numbers of the people, are of no general benefit to the state. fling back this prosecution, then, in the faces of those who have instituted it; and, instead of sending this unfortunate woman to a prison, send her back by your verdict of acquittal to the children of her brother, who, deprived (in the manner you know) both of their father and mother, are as much orphans as they would be by their death; and who, sordid and neglected in her absence, are requiring her care. and, what is more, you will, by your verdict of not guilty, give security to the free expression of public opinion, compose our dissensions, and protect both yourselves and posterity; since in calling on you to acquit the defendant, i call on you to protect the freedom of the press, and with it the freedom of the country; for unless the press is preserved, and preserved inviolate, the political liberties of englishmen are lost. mr. justice best.--it was his duty to call back the attention of the jury to the question which they were to try. a number of observations had been made relative to what had taken place in virginia, but which had nothing to do with the verdict which they were to give. one observation had been made, in the propriety of which he perfectly agreed, which was that they would dismiss from their minds all prejudices. the learned counsel for the defendant seemed to think that the name of carlile was sufficient to create prejudices. if that were the case, he hoped the jury would forget that the present defendant was of that name. they had nothing now to do but to exercise their judgment upon the facts before them. the jury were told, and truly told, that they were the judges as to whether this was a libel or not. the statute gave the jury the power of finding a general verdict; but they still were bound under the sanction of their oaths to find it according to law. he should give his opinion, and the jury were at liberty to differ with him; but he must beg in the most distinct terms to state that the jury or the court had nothing to do with the propriety or impropriety of these prosecutions, or with the association by which the prosecution had been instituted. for his own part he did not know by whom it had been instituted until he had been requested by the defendant to ask the jurors as they went into the box, whether or not they were members of that association. the two questions to be decided were, first, was this pamphlet a libel? and secondly, was the defendant the publisher? they must lay out of their consideration acts of parliament passed in virginia. the principles laid down in the preamble of the act alluded to, might be a good principle for america, but he was bound to tell them that it was not law in england. in the book quoted from by the learned gentlemen, it was said "how wretched must be the state of society in a country where the laws were uncertain;" and that must be the case where the jury take into consideration the propriety or impropriety of laws. in his opinion this publication was libelous, and if the jury were not satisfied of the contrary, the safer course would be for the jury to agree in opinion with one who must be presumed to be acquainted with the law, and who gives that opinion upon his oath. no man could be a more ardent admirer than he of the press, to the freedom of which europe was principally indebted for its happiness; and god forbid that he should do anything which would for a moment extinguish that liberty! the learned counsel for the defendant had said, that the libel upon a private individual was a species of moral assassination. it was odd that an individual could not be libeled with impunity, and yet that society might be set by the ears. the government were equally protected with all others against the malevolence and virulence of the press. he would again repeat, but he would say nothing as to what the law ought to be, but he stated what it was. what he conceived to be the true liberty of the press was this, that any man might, without permission, publish what he please, if he were responsible for what he might publish. it might be asked, then is a man answerable for every expression? to that he would answer, no; if a man's intention were to convince the people that the government was not acting right, he had a right to publish his opinions; and if some sparks should fly out beyond decorum when the real apparent object was to instruct, the expressions ought not to be visited with punishment. but men must not go farther than instruct: they must not say that the system of government is a system of tyranny; which meant nothing more than that the people ought to pull down such systems. the learned counsel had alluded to athens and rome, but it was well known that those states punished offences of this description with greater severity than the laws of england inflicted. every man had a right to point out with firmness, but with respect, the errors of government. every man has a right to appeal to the understanding, but not to the passions; and the man who wished to do so need not be afraid to write. the distinction between fair discussion and libel was this, that one was an appeal to the passions, and the other to the understanding. if the jury were of opinion that this pamphlet was an address to the people of the country, to induce them by legal and constitutional means to procure a redress of grievances, then they would acquit the defendant; but, if on the other hand, they should be of opinion that the intention was to appeal to prejudices and passions (as he thought) it was their bounden duty, whatever they might think of the propriety or impropriety of the prosecution, to return a verdict of guilty. he next felt it his duty to remark upon the passages in the record, and if the learned gentleman had gone through the pamphlet, he would have found in the next page, in which the writer said, that the making and administration of laws was corrupt, a sufficient explanation of what was intended by the sentence, "to talk of the british constitution, &c." there was in the country a constitution not like the spanish constitution, created in a day; but matured by the sense of ages, altering and adapting it to times and circumstances until it became what was a practical and not theoretical system of liberty. the learned counsel had made some observations upon what had fallen from lord colchester in the house of commons; such observations he thought irregular, but he permitted them sooner than it should be said that the defendant, to use a familiar expression, had not "fair play." he did not want the authority of lord colchester with respect to these corruptions, because he had evidence of it in a case in which he tried twenty-four persons for such practices. but was it the meaning of the passage, that there was corruption in the house of commons? no, the expression was that the laws (which were corrupt enough to bring to punishment persons guilty of those practices) were corrupt. was this true? if there were anything for which this country was more distinguished than another it was the equity of the laws, and it was for this that the laws of england were extolled by all foreigners. the writer could not mean the borough of grampound, or any other borough, when he said that corruption was the oil of the system. when the writer said he did not "at that moment speak of insurrection," what was his meaning? why that insurrection would not do then, but at some future time they might, when satisfied of their strength, take advantage of all circumstances. as far as he understood the nature of the manchester and stockport rooms they were for instruction, and if the writer did not go farther, then indeed would the pamphlet be harmless. "delay some time." "have such meetings as those at manchester and stockport; be assured of your numbers, and you can overpower the government." there could be no doubt that these passages were libelous. the next question was, whether the defendant had or had not published the libel? and it was in evidence that these copies were purchased at two different times. the jury were not to take into consideration the former conviction; and he could assure the jury that no greater severity would be used than was sufficient to restrain this licentiousness, which, if not restrained, would overturn this or any other government. the revolution recommended by this pamphlet would not be an ordinary change of masters, but a transfer of property. at about four o'clock the jury retired; and, having returned at quarter before five, mr. justice best said, he had received a communication that they were not likely to agree; and as they must agree at some time or other, he sent for them in order to give them any information in his power upon such points as they disagreed upon. a juror.--the foreman was rather precipitate in writing to your lordship; we have not wasted much time, and we are discussing it among ourselves. mr. justice best.--i am not in a hurry. the foreman said, there were four of the jurors obstinate, and he would wish his lordship to draw a juror. mr. justice best.--i have not the power to do so. a juror.--i throw back the charge of obstinacy in the teeth of the foreman--he is obstinate. another juryman.--my lord there is obstinacy. second juryman.--this is invidious; i am not the only one who stands out; there are four of us. the foreman again expressed his opinion that they should not agree. mr. justice best.--gentlemen, you must see the impropriety of this public discussion; you had better retire, and endeavour to agree among yourselves. the jury again retired, and at eight o'clock desired their families might be informed that it was not likely they would return home before the morning. wednesday, july th. this morning the jury were still enclosed without the least chance of any agreement. a number of persons were in waiting to hear the verdict. at half-past nine o'clock, mr. justice holroyd appeared on the bench, and an intimation was conveyed to his lordship that there was no probability that the jury would agree. a conference took place between the counsel for the prosecution and defence who appeared to be both willing to enter a _noli prosequi_ and discharge the jury without a verdict. a gentleman in black (said to be mr. longueville clarke, one of the committee of the constitutional association, and one of the _state locusts_) suddenly started up, and declared that he would not consent to such a course. mr. cooper (to the man in black).--are you the attorney for the prosecution, sir? mr. longueville clarke.--no: i am a member of the constitutional committee; and _i will_ have a verdict. mr. cooper.--however potent, sir, your word might be in the committee- room, it has no power in this court. mr. gurney, as counsel for the prosecution, in the absence of mr. murray, the attorney, would take upon himself the responsibility of consenting to discharge the jury. mr. cooper, thinking it cruelty to confine the jury any longer would yield also to a consent for their discharge. the jury were then sent for, and in their passage to the court were loudly and rapturously cheered by the bystanders. having answered to their names, mr. justice holroyd addressed them.--gentlemen of the jury, i am glad that it is in my power to relieve you from your present unpleasant situation. the learned counsel on both sides have consented to discharge you without your returning a verdict. the jury then left the court, and were again loudly cheered in their passage through the hall. thus ended the first attempt of the constitutional association, or the bridge-street banditti, to get a verdict; particularly important to the country--particularly honourable to the counsel for the defendant, and the honest jurors who made so noble a stand for the liberty of the press--and particularly disgraceful to all parties connected with the prosecution. london: w. & h. s. warr, printers, , red lion passage, & , high holborn. none [illustration: sir henry hawkins and "jack." _photo by elliot & fry_.] the reminiscences of sir henry hawkins (baron brampton) edited by richard harris, k.c. preface. as a preface i wish to say only a very few words--namely, that but for the great pressure put upon me i should not have ventured to write, or allowed to be published, any reminiscences of mine, being very conscious that i could not offer to the public any words of my own that would be worth the time it would occupy to read them; but the whole merit of this volume is due to my very old friend richard harris, k.c., who has already shown, by his skill and marvellously attractive composition in reproducing my efforts in the tichborne case, what interest may be imparted to an otherwise very dry subject. in that work[a] he has done me much more than justice, and for this i thank him, with many good wishes for the success of this his new work, and with many thanks to those of the public who may take and feel an interest in such of my imperfect reminiscences as are here recorded. brampton. harrogate, _august , _. [footnote a: "illustrations in advocacy" (fourth edition, stevens and haynes).] editor's preface. this volume is the outcome of many conversations with lord brampton and of innumerable manuscript notes from his pen. i have endeavoured, as far as possible, to present them to the public in such a manner that, although chronological order has not been strictly adhered to, it has been, nevertheless, considering the innumerable events of lord brampton's career, carefully observed. apocryphal stories are always told of celebrated men, and of no one more than of sir henry hawkins during his career on the bench and at the bar; but i venture to say that there is no doubtful story in this volume, and, further, that there is not one which has ever been told exactly in the same form before. good stories, like good coin, lose by circulation. if there should be one or two in these reminiscences which have lost their image and superscription by much handling, i hope that the recasting which they have undergone will give them, not only the brightness of the original mint, but a wider circulation than they have ever known. the distinguishing characteristics by which lord brampton's stories may be known i have long been familiar with, and have no hesitation in saying that one or other, some or all, may be found in every anecdote that bears the genuine stamp. they are wit, humour, pathos, and tragedy. my claims in the production of this volume are confined to its _defects_, although lord brampton has been generous enough to attribute to me a share in its merits. richard harris. fitzjohn's avenue, hampstead, _october_ , . contents chapter i. at bedford school ii. in my uncle's office iii. second year--thesiger and platt--my first brief iv. at the old bailey in the old times v. mr. justice maule vi. an incident on the road to newmarket vii. an episode at hertford quarter sessions viii. a dangerous situation--a case of forgetfulness ix. the only "racer" i ever owned--sam linton, the dog-finder x. why i gave over card-playing xi. "codd's puzzle" xii. graham, the polite judge xiii. glorious old days--the hon. bob grimston, and many others--chicken-hazard xiv. peter ryland--the rev. mr. faker and the welsh will xv. tattersall's--baron martin, harry hill, and the old fox in the yard xvi. arising out of the "orsini affair" xvii. appointed queen's counsel--a serious illness--sam lewis xviii. the prize--fight on frimley common xix. sam warren, the author of "ten thousand a year" xx. the brighton card-sharping case xxi. the knebworth theatrical entertainments--sir edward bulwer lytton--charles dickens, charles mathews, macready, douglas jerrold xxii. crockford's--"hooks and eyes"--douglas jerrold xxiii. alderson, tomkins, and a free country--a problem in human nature xxiv. charles mathews--a harvest festival at the village church xxv. compensation--nice calculations in old days--experts--lloyd and i xxvi. election petitions xxvii. my candidature for barnstaple xxviii. the tichborne case xxix. a visit to sheffield--mrs. hailstone's danish boarhound xxx. an expert in handwriting--"do you know joe brown?" xxxi. appointed a judge--my first trial for murder xxxii. on the midland circuit xxxiii. jack xxxiv. two tragedies xxxv. the st. neots case xxxvi. a night at nottingham xxxvii. how i met an incorrigible punster xxxviii. the tilney street outrage--"are you not going to put on the black cap, my lord?" xxxix. several scenes xl. dr. lamson--a case of mistaken identity--a will case xli. mr.j.l. toole on the bench xlii. a full member of the jockey club xliii. the little mouse and the prisoner--the brutality of our old laws xliv. the last of lord campbell--wine and water--sir thomas wilde xlv. how i cross-examined prince louis napoleon xlvi. the new law allowing the accused to give evidence--the case of dr. wallace, the last i tried on circuit xlvii. a farewell memory of jack xlviii. old turf friends xlix. leaving the bench--lord brampton l. sentences li. cardinal manning--"our chapel" appendix the reminiscences of sir henry hawkins. (now lord brampton.) * * * * * chapter i. at bedford school. my father was a solicitor at hitchin, and much esteemed in the county of hertford. he was also agent for many of the county families, with whom he was in friendly intercourse. my mother was the daughter of the respected clerk of the peace for bedfordshire, a position of good influence, which might be, and is occasionally, of great assistance to a young man commencing his career at the bar. to me it was of no importance whatever. my father had a large family, sons and daughters, of whom only two are living. i mention this as an explanation of my early position when straitened circumstances compelled a most rigid economy. during no part of my educational career, either at school or in the inn of court to which i belonged, had i anything but a small allowance from my father. my life at home is as little worth telling as that of any other in the same social position, and i pass it by, merely stating that, after proper preparation, i was packed off to bedford school for a few years. my life there would have been an uninteresting blank but for a little circumstance which will presently be related. it was the custom then at this very excellent foundation to give mainly a classical education, and doubtless i attained a very fair proficiency in my studies. had i cultivated them, however, with the same assiduity as i did many of my pursuits in after-life, i might have attained some eminence as a professor of the dead languages, and arrived at the dignity of one of the masters of bedford. however, if i had any ambition at that time, it was not to become a professor of dead languages, but to see what i could make of my own. it is of no interest to any one that i had great numbers of peg-tops and marbles, or learnt to be a pretty good swimmer in the ouse. there was a greater swim prepared for me in after-life, and that is the only reason for my referring to it. in the year bedford schoolhouse occupied the whole of one side of st. paul's square, which faced the high street. from that part of the building you commanded a view of the square and the beautiful country around. the sleepy old bridge spanned the still more sleepy river, over which lay the quiet road leading to the little village of willshampstead, and it came along through the old square where the schoolhouse was. it was market day in bedford, and there was the usual concourse of buyers and sellers, tramps and country people in their sunday gear; farmers and their wives, with itinerant venders of every saleable and unsaleable article from far and near. i was in the upper schoolroom with another boy, and, looking out of the window, had an opportunity of watching all that took place for a considerable space. there was a good deal of merriment to divert our attention, for there were clowns and merry-andrews passing along the highroad, with singlestick players, punch and judy shows, and other public amusers. every one knows that the smallest event in the country will cause a good deal of excitement, even if it be so small an occurrence as a runaway horse. there was, however, no runaway horse to-day; but suddenly a great silence came over the people, and a sullen gloom that made a great despondency in my mind without my knowing why. public solemnity affects even the youngest of us. at all events, it affected me. presently--and deeply is the event impressed on my mind after seventy years of a busy life, full of almost every conceivable event--i saw, emerging from a bystreet that led from bedford jail, and coming along through the square and near the window where i was standing, a common farm cart, drawn by a horse which was led by a labouring man. as i was above the crowd on the first floor i could see there was a layer of straw in the cart at the bottom, and above it, tumbled into a rough heap, as though carelessly thrown in, a quantity of the same; and i could see also from all the surrounding circumstances, especially the pallid faces of the crowd, that there was something sad about it all. the horse moved slowly along, at almost a snail's pace, while behind walked a poor, sad couple with their heads bowed down, and each with a hand on the tail-board of the cart. they were evidently overwhelmed with grief. happily we have no such processions now; even justice itself has been humanized to some extent, and the law's cruel severity mitigated. the cart contained the rude shell into which had been laid the body of this poor man and woman's only son, _a youth of seventeen, hanged that morning at bedford jail for setting fire to a stack of corn_! he was now being conveyed to the village of willshampstead, six miles from bedford, there to be laid in the little churchyard where in his childhood he had played. he was the son of very respectable labouring people of willshampstead; had been misled into committing what was more a boyish freak than a crime, and was hanged. that was all the authorities could do for him, and they did it. this is the remotest and the saddest reminiscence of my life, and the only sad one i mean to relate, if i can avoid it. but years afterwards, when i became a judge, this picture, photographed on my mind as it was, gave me many a lesson which i believe was turned to good account on the judicial bench. it was mainly useful in impressing on my mind the great consideration of the surrounding circumstances of every crime, the _degree_ of guilt in the criminal, and the difference in the degrees of the same kind of offence. about this i shall say something hereafter. i remained at this school until i had acquired all the learning my father thought necessary for my future position, as he intended it to be, and much more than i thought necessary, unless i was to get my living by teaching latin and greek. in due course i was articled to my worthy uncle, the clerk of the peace, and, had i possessed my present experience, should have known that it was a diplomatic move of the most profound policy to enable me, if anything happened to him, to succeed to that important dignity. had i been ambitious of wealth, there were other offices which my uncle held, to the great satisfaction of the county as well as his own. these would naturally descend to me, and i should have been in a position of great prominence in the county, with a very respectable income. but i hated the drudgery of an attorney's office. in six months i saw enough of its documentary evidence to convince me that i hated it from my heart, and that nothing on earth would induce me to become a solicitor. i took good care, meek as i was, to show this determination to my friends. it was my only chance of escape. but while remaining there it was my duty to work, however hateful the task, and i did so. even this, to me, most odious business had its advantages in after-life. i attended one morning with my uncle the petty sessions of hertford, where, no doubt, i was supposed to enlarge my knowledge of sessions practice; it certainly did so, for i knew nothing, and received a lesson, which is not only my earliest recollection, but my first experience in _advocacy_. at this hertford petty sessional division the chairman was a somewhat pompous clergyman, but very devoted to his duties. he was strict in his application of the law when he knew it, but it was fortunate for some delinquents, although unfortunate for others, that he did not always possess sufficient knowledge to act independently of his clerk's opinion, while the clerk's opinion did not always depend upon his knowledge of law. an impudent vagabond was brought up before this clergyman charged with a violent and unprovoked assault on a man in a public-house. he was said to have gone into the room where the prosecutor was, and to have taken up his jug of ale and appropriated the contents to his own use without the owner's consent. the prosecutor, annoyed at the outrage, rose, and was immediately knocked down by the interloper, and in falling cut his head. there was to my untutored mind no defence, but the accused was a man of remarkable cunning and not a little ingenuity. he knew the magistrate well, and his special weakness, which was vanity. by his knowledge the man completely outwitted his adversary, and shifted the charge from himself on to the prosecutor's shoulders. the curious thing was he cross-examined the reverend chairman instead of the witness, which i thought a master-stroke of policy, if not advocacy. "you know this public-house, sir?" he asked. the reverend gentleman nodded. "i put it to yourself, sir, as a gentleman: how would you have liked it if another man had come to your house and drunk your beer?" there was no necessity to give an answer to this question. it answered itself. the reverend gentleman would not have liked it, and, seeing this, the accused continued,-- "well, your honour, this here man comes and takes my beer. "'halloa, jack!' i ses, 'no more o' that.' "'no,' he says, 'there's no more; it's all gone.' "'stop a bit," says i; 'that wun't do, nuther.' "'that wun't do?' he says. 'wool that do?' and he ups with the jug and hits me a smack in the mouth, and down i goes clean on the floor; he then falls atop of me and right on the pot he held in his hand, which broke with his fall, bein' a earthenware jug, and cuts his head, and 'sarve him right,' i hopes your honour'll say; and the proof of which statement is, sir, that there's the cut o' that jug on his forehead plainly visible for anybody to see at this present moment. now, sir, what next? for there's summat else. "'jack,' says i, 'i'll summon you for this assault.' "'yes,' he says, 'and so'll i; i'll have ee afore his worship mr. knox.' "'afore his worship mr. knox?' says i. 'and why not afore his worship the rev. mr. hull? he's the gentleman for my money--a real gentleman as'll hear reason, and do justice atween man and man.' "'what!' says jack, with an oath that i ain't going to repeat afore a clergyman--'what!' he says, 'a d--d old dromedary like that!' "'dromedary, sir,' meaning your worship! did anybody ever hear such wile words against a clergyman, let alone a magistrate, sir? and he then has the cheek to come here and ask you to believe him. 'old dromedary!' says he--' a d--d old dromedary.'" mr. hull, the reverend chairman, was naturally very indignant, not that he minded on his own account, as he said--that was of no consequence--but a man who could use such foul language was not to be believed on his oath. he therefore dismissed the summons, and ordered the prosecutor to pay the costs. i think both my father and uncle still nursed the idea that i was to become the good old-fashioned county attorney, for they perpetually rang in my ears the praises of "our bench" and "our chairman," out bench being by far the biggest thing in hertfordshire, except when a couple of notables came down to contest the heavy-weight championship or some other noble prize. for myself, i can truly say i had no ambition at this time beyond earning my bread, for i pretty well knew i had to trust entirely to my own exertions. the fortunate have many friends, and it is just the fortunate who are best without them. i had none, and desired none, if they were to advise me against my inclinations. my term being now expired, for i loyally pursued my studies to the bitter end, my mind was made up, ambition or no ambition, for the bar or the stage. like most young men, i loved acting, and quite believed i would succeed. my passion for the stage was encouraged by an old schoolfellow of my father's when he was at rugby, for whom i had, as a boy, a great admiration. i forget whether in after-life i retained it, for we drifted apart, and our divergent ways continued their course without our meeting again. any worse decision, so far as my friends were concerned, could not be conceived. they both remonstrated solemnly, and were deeply touched with what they saw was my impending ruin, especially the ruin of their hopes. in vain, however, did they attempt to persuade me; my mind was as fixed as the mind of two-and-twenty can be. having warned me in terms of severity, they now addressed me in the language of affection, and asked how i could be so headstrong and foolish as to attempt the bar, at which it was clear that i could only succeed after working about twenty years as a special pleader. they next set before me, as a terrible warning, my uncle, another brother of my father's, who had gone to the bar, and i will not say never had any practice, for i believe he practised a good deal on the norfolk broads, and once had a brief at sessions concerning the irremovability of a pauper, which he conducted much to the satisfaction of the pauper, although i believe the solicitor never gave him another brief. however, our family trio could not go on for ever quarrelling, and at last they made a compromise with me, much to my satisfaction. my father undertook to allow me a hundred a year for five years, and after that time it was to cease automatically, whether i sank or swam, with this solemn proviso, however, for the soothing of his conscience: that if i sank _my fate was to be upon my own head_! i agreed also to that part of the business, and accepting the terms, started for london. chapter ii. in my uncle's office. i ought to mention, in speaking of my ancestors, that i had a very worthy godfather who was half-brother to my father. he was connected with a family of great respectability at royston, in cambridgeshire, and inherited from them a moderate-sized landed estate. a portion of this property was a little farm situate at _brampton_, in huntingdonshire, from which village i took the title i now enjoy. the farm was left, however, to my aunt for life, who lived to a good old age, as most life-tenants do whom you expect to succeed, and i got nothing until it was of no use to me. when i came into possession i was making a very fair income at the bar, and the probability is my aunt did me, unconsciously, the greatest kindness she could in keeping me out of it so long. so much for my ancestors. about the rest of them i know nothing, except an anecdote or two. there was one more event in my boyhood which i will mention, because it is historic. i assisted my father, on my little pony, in proclaiming william iv. on his accession to the throne, and i mention it with the more pride because, having been created a peer of the realm by her late gracious majesty queen victoria, i was qualified to assist as a member of the privy council at the accession of his present most gracious majesty, and had the honour to hear him announce himself as _king edward of england_ by the title of _edward the seventh_! arrived in london, full of good advice and abundance of warnings as to the fate that awaited me, i entered as a pupil the chambers of a famous special pleader of that time, whose name was frederick thompson. this was in the year . i have the right to say i worked very hard there for several months, and studied with all my might; nor was the study distasteful. i was learning something which would be useful to me in after-life. moreover, being endowed with pluck and energy, i wanted to show that my uncles--for the godfather warned me as well--and my father were false prophets. so i gave myself up entirely to the acquisition of knowledge, this being absolutely necessary if i was to make anything of my future career. "sink or swim," my father said, was the alternative, so i was resolved to keep my head above water if possible. after being at thompson's my allotted period, i next went to mr. george butt, a very able and learned man, who afterwards became a queen's counsel, but never an advocate. i acquired while with him a good deal of knowledge that was invaluable, became his favourite pupil, and was in due course entrusted with papers of great responsibility, so that in time it came to pass that mr. butt would send off my opinions without any correction. these are small things to talk of now, but they were great then, and the foundation of what, to me, were great things to come, although i little suspected any of them at that time; and as i look back over that long stretch of years, i have the satisfaction of feeling that i did not enter upon my precarious career without doing my utmost to fit myself for it. in those early days of the century prize-fights were very common in england. the noble art of self-defence was patronized by the greatest in the land. society loved a prize-fight, and always went to see it, as society went to any other fashionable function. magistrates went, and even clerical members of that august body. as magistrates it may have been their duty to discountenance, but as county gentlemen it was their privilege to support, the noble champions of the art, especially when they had their money on the event. the magistrates, if their presence was ever discovered, said they went to prevent a breach of the peace, but if they were unable to effect this laudable object, they looked on quietly so as to prevent any one committing a breach of the peace on themselves. their individual heads were worth something. it was to one of these exhibitions of valour, between _owen swift_ and _brighton bill_, that a reverend and sporting magistrate took my brother john, a nice good schoolboy, in a tall hat. he thought it was the right thing that the boy should _see the world_. i thought also that what was good for john, as prescribed by his clerical adviser, would not be bad for me, so i went as well. there was a great crowd, of course, but i kept my eye on john's tall chimney-pot hat, knowing that while i saw that i should not lose john. presently there was a stir, for brighton bill had landed a tremendous blow on the cheek of owen swift, and while we were applauding, as is the custom at prize-fights and public dinners, a cunning pickpocket standing immediately behind john pushed the tall chimney-pot hat tightly down over the boy's eyes. his little hands, which had been in his pockets, went up in a moment to raise his hat, so that he might see the world, the big object he had come to see; and immediately in went two other hands, and out came the savings of john's life--two precious half-crowns, which he had shown to me with great pride that very morning! when he saw the world again the rogue had disappeared. the famous place for these pugilistic encounters, or one of the famous places, was a spot called noon's folly, which was within a very few miles of royston, where the counties of cambridge, suffolk, essex, and hertfordshire meet, or most of them. that was the scene of many a stiff encounter; and although, of course, there were both magisterial and police interference when the knowledge reached them that a fight was about to take place within their particular jurisdiction, by some singular misadventure the knowledge never reached them until their worships were returning from the battle. all was over before any _official_ communication was made. * * * * * i was entered of the middle temple on april , , and remained with mr. butt until i had kept sufficient terms to qualify me to take out a licence to plead on my own account, which i did at the earliest possible date. this was a great step in my career, although, of course, the licence did not enable me to plead in court, as i was not called to the bar. if work came i should now be in a fair way to attain independence. but the prospect was by no means flattering; it was, in fact, all but hopeless while the position of a special pleader was not my ambition. the lookout, in fact, was anything but encouraging from the fifth floor of _no. elm court_--i mean prospectively. it was a region not inaccessible, of course, but it looked on to a landscape of chimney-pots, not one of which was likely to attract attorneys; it was cheap and lonely, dull and miserable--a melancholy altitude beyond the world and its companionship. had i been of a melancholy disposition i might have gone mad, for hope surely never came to a fifth floor. but there i sat day by day, week by week, and month by month, waiting for the knock that never came, hoping for the business that might never come. hundreds of times did i listen with vain expectations to the footsteps on the stairs below--footsteps of attorneys and clerks, messengers and office-boys. i knew them all, and that was all i knew of them. down below at the bottom flight they tramped, and there they mostly stopped. the ground floor was evidently the best for business; but some came higher, to the first floor. that was a good position; there were plenty of footsteps, and i could tell they were the footsteps of clients. a few came a little higher still, and then my hopes rose with the footsteps. now some one had come up to the third floor: he stopped! alas! there was the knock, one single hard knock: it was a junior clerk. the sound came all too soon for me, and i turned from my own door to my little den and looked out of my window up into the sky, from whence it seemed i might just as well expect a brief as from the regions below. this was not quite true. on another occasion some bold adventurer ascended with asthmatical energy to the _fourth floor_, and i thought as i heard him wheeze he would never have breath enough to get down again, and wondered if the good-natured attorneys kept these wheezy old gentlemen out of charity. but it was rare indeed that the climber, unless it was the rent collector, reached that floor. the fifth landing was too remote for the postman, for i never got a letter--at least so it seemed; and no squirrel watching from the topmost bough of the tallest pine could be more lonely than i. at last i thought a step had passed even the fourth landing, and was approaching mine; but i would not think too fast, and damped my hopes a little on purpose lest they should burn too brightly and too fast. i was not mistaken: there _was_ a footstep on my landing, and i listened for the one heavy knock. it seemed to me i waited about an hour and a half, judging by the palpitations of my heart, and wished the man had knocked as vigorously. but i was rewarded: the knocker fell, and as my boy was away with the toothache, i opened the door myself. he was the same wheezy man i had heard below some time before; and i really seem to have liked asthmatical people ever since--except when i became a judge and they disturbed me in court. "papers!" that is enough to say to any one who understands the situation. you may be sure i gave them my best attention, that they were finished promptly, and, as i hoped, in the best style. if i had required any additional incentive to keep me to my daily task of watching, this would have been sufficient; but i wanted none. i knew that my whole future depended upon it, and there i was from ten in the morning till ten at night. my first fee was small, but it was the biggest fee i ever had. it was s. d. i was only a special pleader, and with some papers our fees were even less; we only had to _draw_ pleadings, not to open them in court--that comes after you are called to the bar. drawing them means really drawing the points of the case for counsel, and opening them means a gabbling epitome of them to the jury, which no jury in this world ever yet understood or ever will. this little matter was the forerunner of others, and by little and little i steadily went on, earning a few shillings now and a few shillings then, but, best of all, becoming known little by little here and there. i was aware that some knowledge of the world would be necessary for me when i once got into it by way of business as an advocate, so i came to the conclusion that it would be well to commence that branch of study as soon as i closed the other for the day--or rather for the night. i had not far to go to school, only to the haymarket and its delightful purlieus; and there were the best teachers to be found in the world, and the most recondite studies. for all these i kept, as the great politicians say, an open mind, and learned a great deal which stood me in good stead in after-life. it is not necessary, i suppose, in writing these reminiscences, to describe all i saw--at least i hope not. manners have so changed since that time that people who have no imagination would not believe me, and those who have would imagine i was exaggerating. so i must skip this portion of my youthful studies, merely saying that i saw nearly, if not _quite_, all the life which was to be seen in london; and i am sure i am not exaggerating when i say that that would nearly fill an octavo volume of itself. there is so much to be seen in london, as a dear old lady i used to drink tea with once told me. but she did not know more than i, for she had never seen the night-houses, gambling hells, and other places of amusement that at that time were open all night long, nor had she seen the ghastly faces of the morning. i attribute my escaping the consequences of all these allurements to the beautiful influence which my mother in early life exercised over me, as i attribute my knowledge of them to the removal of the restraint with which my earlier years had been curbed. my mother died before i came to london, but undoubtedly her influence was with me, although i broke loose, as a matter of course, from all paternal control. but i was never a "man about town." to be that you must have plenty of money or none at all, and in either case you are an object to avoid. i had, nevertheless, a great many pleasures that a young man from the country can enjoy. i loved horse-racing, cricket, and the prize-ring. it was not because pugilism was a fashionable amusement in those days that i attended a "set-to" occasionally; i went on my own account, not to ape people in the fashionable world, and enjoyed it on my own account, not because they liked it, but because i did. my rent at this time of my entrance into the fashionable world was £ a year; my laundress, perhaps, a little less. she earned it by coming up the stairs; but she was a good old soul. i remembered her long years after, and always with gratitude for her many kindnesses in those gloomy days. her name was hannem. of course, i had to buy the necessary books for my professional use, coals, and other things, and after paying all these i had to live on the narrow margin of my £ a year. this recollection is very pleasing. i never got into debt, and never wanted; but i had to be frugal and avoid every unnecessary expense. but the time at last came when i was no longer to rest on my lonely perch at the top of elm court. i had kept my terms, and was duly called to the bar of the middle temple on may , . just fifty years after, when i was a judge, and almost the senior bencher of my inn, our illustrious sovereign, then prince of wales, who is also a bencher of the middle temple, favoured us with his presence at dinner, and did me the honour to propose my health in a gracious speech. on returning thanks for this kindness, i told the crowded audience of my _jubilee_, and pointed out the spot where fifty years before i had held my call party. chapter iii. second year--thesiger and platt--my first brief. in my second year i made fifty pounds, the sweetest fifty pounds i ever made. i had no longer any weary waiting, for there was no weariness in it, and i confess at this time my sole idea, and i may add my only ambition, was to relieve myself of all obligations to my father. if i could accomplish this, i should have vindicated the step i had taken, and my father would have no further right, whatever reason he might think he had, to complain. my third year came, and then, to my great joy, finding that i was earning more than the hundred pounds he allowed me, i wrote and informed him, with all proper expressions of gratitude, that i should no longer need his assistance, and from that time i never had a single farthing that i did not earn. i am sure i was prouder of that than of my peerage, for i experienced for the first time the joyous pride of independence. there is no fruit of labour so sweet as that. but i no sooner began to obtain a little success than my rivals and others tried to deprive me of the merit of it, if merit there was--"oh, of course his father and uncle are both solicitors in the county;" while one of the local newspapers years after was good enough to publish a paragraph which stated that i owed all my success to my father's office. this, of course, does not need contradiction. an occasional small brief from hitchin was the beginning and the end of my father's influence, while sessions practice was not the practice i hoped to finish my career with, although i had little hopes of eminence. certainly if i had i should have known that eminence could not come from hitchin. i chose the home circuit, and did not leave it till i was made a judge. it is impossible to forget the kindness i received from its members throughout my whole career. there was a brotherly feeling amongst us, which made life very pleasant. there were several celebrated men on the home circuit when i joined. amongst them were thesiger and platt. this was long before the former became attorney-general, which took place in . he afterwards was lord chancellor, and took his title from the little county town where probably he obtained his start in the career which ended so brilliantly. platt became a baron of the exchequer. thesiger was a first-rate advocate, and, i need not say, was at all times scrupulously fair. he had a high sense of honour, and was replete with a quiet, subtle humour, which seemed to come upon you unawares, and, like all true humour, derived no little of its pleasure from its surprise. in addition to his abilities, thesiger was ever kind-hearted and gentle, especially in his manner towards juniors. i know that he sympathized with them, and helped them whenever he had an opportunity. it did not fall to my lot to hold many briefs with him, but i am glad to say that i had some, because i shall not forget the kindness and instruction i received from him. platt was an advocate of a different stamp. he also was kind, and in every way worthy of grateful remembrance. he loved to amuse especially the junior bar, and more particularly in court. he was a good natural punster, and endowed with a lively wit. the circuit was never dull when platt was present; but there was one trait in his character as an advocate that judges always profess to disapprove of--he loved popular applause, and his singularly bold and curious mode of cross-examination sometimes brought him both rebuke and hearty laughter from the most austere of judges. he dealt with a witness as though the witness was putty, moulding him into any grotesque form that suited his humour. no evidence could preserve its original shape after platt had done with it. he had a coaxing manner, so much so that a witness would often be led to say what he never intended, and what afterwards he could not believe he had uttered. thesiger, who was his constant opponent, was sometimes irritated with platt's manner, and on the occasion i am about to mention fairly lost his temper. it was in an action for nuisance before tindal, chief justice of the common pleas, at croydon assizes. thesiger was for the plaintiff, who complained of a nuisance caused by the bad smells that emanated from a certain tank on the defendant's premises, and called a very respectable but ignorant labouring man to prove his case. the witness gave a description of the tank, not picturesque, but doubtless true, and into this tank all kinds of refuse seem to have been thrown, so that the vilest of foul stenches were emitted. platt began his cross-examination of poor hodge by asking him in his most coaxing manner to describe the character and nature of the various stenches. had hodge been scientific, or if he had had a little common sense, he would have simply answered "_bad_ character and _ill_-nature;" but he improved on this simplicity, and said,-- "some on 'em smells summat _like paint_." this was quite sufficient for platt. "come now," said he, "that's a very sensible answer. you are aware, as a man of undoubted intelligence, that there are various colours of paint. had this smell any _particular colour_, think you?" "wall, i dunnow, sir." "don't answer hurriedly; take your time. we only want to get at the truth. now, what colour do you say this smell belonged to?" "wall, i don't raightly know, sir." "i see. but what do you say to _yellow_? had it a yellow smell, think you?" "wall, sir, i doan't think ur wus yaller, nuther. no, sir, not quite yaller; i think it was moore of a blue like." "a blue smell. we all know a blue smell when we see it." of course, i need not say the laughter was going on in peals, much to platt's delight. tindal was simply in an ecstasy, but did all he could to suppress his enjoyment of the scene. then platt resumed,-- "you think it was more of a blue smell like? now, let me ask you, there are many kinds of blue smells, from the smell of a blue peter, which is salt, to that of the sky, which depends upon the weather. was it dark, or--" "a kind of sky-blue, sir." "more like your scarf?" up went hodge's hand to see if he could feel the colour. "yes," said he, "that's more like--" "zummut like your scarf?" "yes, sir." then he was asked as to a variety of solids and liquids; and the man shook his head, intimating that he could go a deuce of a way, but that there were bounds even to human knowledge. then platt questioned him on less abstruse topics, and to all of his questions he kept answering,-- "yes, my lord." "were fish remnants," asked platt, "sometimes thrown into this reservoir of filth, such as old cods' heads with goggle eyes?" "yes, my lord." "_rari nantes in gurgite vasto_?" "yes, my lord." thesiger could stand it no longer. he had been writhing while the court had been roaring with laughter, which all the ushers in the universe could not suppress. "my lord, my lord, there must be some limit even to cross-examination by my friend. does your lordship think it is fair to suggest a classical quotation to a respectable but illiterate labourer?" tindal, who could not keep his countenance--and no man who witnessed the scene could--said,-- "it all depends, mr. thesiger, whether this man understands latin." whereupon platt immediately turned to the witness and said,-- "now, my man, attend: _rari nantes in gurgite vasto_. you understand that, do you not?" "yes, my lord," answered the witness, stroking his chin. tindal, trying all he could to suppress his laughter, said: "mr. thesiger, the witness says he understands the quotation, and as you have no evidence to the contrary, i do not see how i can help you." of course, there was a renewal of the general laughter, but thesiger, in his reply, turned it on platt. this was my first appearance on circuit, and my first lesson from a great advocate in the art of caricature. * * * * * no man at the bar can forget the joy of his first brief--that wonderful oblong packet of white papers, tied with the mysterious pink tape, which his fourth share of the diminutive clerk brings him, marked with the important "i gua." i speak not to stall-fed juniors who have not to wait till their merits are discovered, and who know that whosoever may watch and wait and hope or despair, they shall have enough. all blessings go with them; i never envied them their heritage. they are born to briefs as the sparks fly upwards. i tell my experience to those who will understand and appreciate every word i say--to men who have to make their way in the world by their own exertions, and live on their own labour or die of disappointment. there is one consolation even for the wretched waiters on solicitors' favours, and that is, that the men who have never had to work their way seldom rise to eminence or to any position but respectable mediocrity. they never knew hope, and will never know what it is to despair, or to nibble the short herbage of the common where poorer creatures browse. a father never looked on his firstborn with more pleasure than a barrister on his first brief. if the tower guns were announcing the birth of an heir to the throne, he would not look up to ask, "what is that?" it was the turning-point of my life, for had there been no first brief pretty soon, i should have thought my kind relations' predictions were about to be verified. but i should never have returned home; there was still the stage left, on which i hoped to act my part. strange to say, my first brief, like almost everything in my life, had a little touch of humour in it. i was instructed to defend a man at hertford sessions for stealing a wheelbarrow, and unfortunately the wheelbarrow was found on him; more unfortunate still--for i might have made a good speech on the subject of the _animus furandi_--the man not only told the policeman he stole it, but pleaded "guilty" before the magistrates. i was therefore in the miserable condition of one doomed to failure, take what line i pleased. there was nothing to be said by way of defence, but i learnt a lesson never to be forgotten. being a little too conscientious, i told my client, the attorney, that in the circumstances i must return the brief, inasmuch as there was no defence for the unhappy prisoner. the attorney seemed to admire my principle, and instead of taking offence, smiled in a good-natured manner, and said it was no doubt a difficult task he had imposed on me, and he would exchange the brief for another. he kept his word, and by-and-by returned with a much easier case--a prosecution where the man pleaded "guilty." it was a grand triumph, and i was much pleased. those were early days to begin picking and choosing briefs, for no man can do that unless he is much more wanted by clients than in want of them; but i learned the secret in after life of a great deal of its success. i was, however, a little chagrined when i saw the mistake i had made. rodwell was leader of the sessions, and ought to have been far above a guinea brief; judge then of my surprise when i saw that same brief a few minutes after accepted by that great man--the brief i had refused because there was nothing to be said on the prisoner's behalf. my curiosity was excited to see what rodwell would do with it, and what defence he would set up. it was soon gratified. he simply admitted the prisoner's guilt, and hoped the chairman, who was lord salisbury, would deal leniently with him. i could have done that quite as well myself, and pocketed the guinea. from that moment i resolved never to turn a case away because it was hopeless. i subjoin a copy of my first brief for the prosecution. it must be remembered that in those days the gallows was a very popular institution. they punished severely even trivial offences, and this case would have been considered a very serious one; while a sentence of seven years' transportation was almost as good as an acquittal. _herts. no. _. michaelmas sessions, . regina _v_. elizabeth norman. brief for the prosecution. mr. hawkins. i gua. _h. hawkins_. plea--guilty. h.h. oct. , . transported for years. h.h. _cobliam_. ware. these are my notes:-- _sep_. . mr. page. silk shawl. apprehension. various accounts. exam. before j---- j----. propy found. mrs. stevens,} mr. johnson, } witnesses. i made a rule throughout my professional life to note my cases with the greatest care. chapter iv. at the old bailey in the old times. it is a vast space to look back over sixty years of labour, and yet there seems hardly a scene or an event of any consequence, that is not reproduced in my mind with a vividness that astonishes me. in my earlier visits to her majesty's courts of justice my principal business was to study the queen's counsel and serjeants, and they were worthy the attention i bestowed on them. they all belonged to different schools of advocacy, and some knew very little about it. i went to the old bailey, a den of infamy in those times not conceivable now, and i verily believe that no future time will produce its like--at least i hope not. its associations were enough to strike a chill of horror into you. it was the very cesspool for the offscourings of humanity. i had no taste for criminal practice in those days, except as a means of learning the art of advocacy. in these cases, presided over by a judge who knows his work, the rules of evidence are strictly observed, and you will learn more in six months of practical advocacy than in ten years elsewhere. the criminal court was the best school in which to learn your work of cross-examination and examination-in-chief, while the courts of equity were probably the worst. but i shall not dwell on my struggles in connection with the old bailey at that early period of my life. what will be more interesting, perhaps, are some curious arrangements which they had for the conduct of business and the entertainment of the judges. these are a too much neglected part of our history, and when referred to in reminiscences are generally referred to as matters for jocularity. they exercised, however, a serious influence on the minds and feelings of the people, as well as their manners; more so than a hundred subjects with which the historian or the novelist sometimes deals. in all cases of unusual gravity three judges sat together. offences that would now be treated as not even deserving of a day's imprisonment in many cases were then invariably punished with death. it was not, therefore, so much the nature of the offence as the importance of it in the eyes of the judges that caused three of them to sit together and try the criminals. they sat till five o'clock right through, and then went to a sumptuous dinner provided by the lord mayor and aldermen. they drank everybody's health but their own, thoroughly relieved their minds from the horrors of the court, and, having indulged in much festive wit, sometimes at an alderman's expense, and often at their own, returned into court in solemn procession, their gravity undisturbed by anything that had previously taken place, and looking the picture of contentment and virtue. another dinner was provided by the sheriffs; this was for the recorder, common serjeant, and others, who took their seats when their lordships had arisen. i ought to mention one important dignitary--namely, the chaplain of newgate--whose fortunate position gave him the advantage over most persons: for he _dined at both these dinners_, and assisted in the circulation of the wit from one party to another; so that what my lord chief justice had made the table roar with at five o'clock, the recorder and the common serjeant roared with at six, and were able to retail at their family tables at a later period of the evening. it was in that way so many good things have come down to the present day. the reverend gentleman alluded to of course attended the court in robes, and his only, but solemn, function was to say "amen" when the sentence of death was pronounced by the judge. there were curious old stories, too, about my lords and old port at that time which are not of my own reminiscences, and therefore i shall do no more than mention them in order to pass on to what i heard and saw myself. the first thing that struck me in the after-dinner trials was the extreme rapidity with which the proceedings were conducted. as judges and counsel were exhilarated, the business was proportionately accelerated. but of all the men i had the pleasure of meeting on these occasions, the one who gave me the best idea of rapidity in an after-dinner case was mirehouse. let me illustrate it by a trial which i heard. jones was the name of the prisoner. his offence was that of picking pockets, entailing, of course, a punishment corresponding in severity with the barbarity of the times. it was not a plea of "guilty," when perhaps a little more inquiry might have been necessary; it was a case in which the prisoner solemnly declared he was "not guilty," and therefore had a right to be tried. the accused having "held up his hand," and the jury having solemnly sworn to hearken to the evidence, and "to well and truly try, and true deliverance make," etc., the witness for the prosecution climbs into the box, which was like a pulpit, and before he has time to look round and see where the voice comes from, he is examined as follows by the prosecuting counsel:-- "i think you were walking up ludgate hill on thursday, th, about half-past two in the afternoon, and suddenly felt a tug at your pocket and missed your handkerchief, which the constable now produces. is that it?" "yes, sir." "i suppose you have nothing to ask him?" says the judge. "next witness." constable stands up. "were you following the prosecutor on the occasion when he was robbed on ludgate hill? and did you see the prisoner put his hand into the prosecutor's pocket and take this handkerchief out of it?" "yes, sir." judge to prisoner: "nothing to say, i suppose?" then to the jury: "gentlemen, i suppose you have no doubt? i have none." jury: "guilty, my lord," as though to oblige his lordship. judge to prisoner: "jones, we have met before--we shall not meet again for some time--seven years' transportation. next case." time: two minutes fifty-three seconds. perhaps this case was a high example of expedition, because it was not always that a learned counsel could put his questions so neatly; but it may be taken that these after-dinner trials did not occupy on the average more than _four minutes_ each. chapter v. mr. justice maule. of course, in those days there were judges of the utmost strictness as there are now, who insisted that the rules of evidence should be rigidly adhered to. i may mention, one, whose abilities were of a remarkable order, and whose memory is still fresh in the minds of many of my contemporaries--i mean mr. justice maule. his asthmatic cough was the most interesting and amusing cough i ever heard, especially when he was saying anything more than usually humorous, which was not infrequently. he was a man of great wit, sound sense, and a curious humour such as i never heard in any other man. he possessed, too, a particularly keen apprehension. to those who had any real ability he was the most pleasant of judges, but he had little love for mediocrities. no man ever was endowed with a greater abhorrence of hypocrisy. i learnt a great deal in watching him and noting his observations. one day a very sad case was being tried. it was that of a man for killing an infant, and it was proposed by the prosecution to call as a witness a little brother of the murdered child. the boy's capacity to give evidence, however, was somewhat doubted by the counsel for the crown, john clark, and it did honour to his sense of fairness. having asked the little boy a question or two as to the meaning of an oath, he said he had some doubt as to whether the witness should be admitted to give evidence, as he did not seem to understand the nature of an oath, and the boy was otherwise deficient in religious knowledge. he was asked the usual sensible questions which st. thomas aquinas himself would have been puzzled to answer; and being a mere child of seven--or at most eight--years of age, without any kind of education, was unable to state what the exact nature of an oath was. having failed in this, he was next asked what, when they died, became of people who told lies. "if he knows that, it's a good deal more than i do," said maule. "attend to me," said the crown counsel. "do you know that it's wicked to tell lies?" "yes, sir," the boy answered. "i don't think," said the counsel for the prosecution, "it would be safe to swear him, my lord; he does not seem to know anything about religion at all.--you can stand down." "stop a minute, my boy," says maule; "let me ask you a question or two. you have been asked about a future state--at least i presume that was at the bottom of the gentleman's question. i should like to know what you have been taught to believe. what will become of _you_, my little boy, when you die, if you are so wicked as to tell a lie?" "_hell fire_," answered the boy with great promptitude and boldness. "right," said maule. "now let us go a little further. do you mean to say, boy, that you would go to hell fire for telling _any_ lie?" "_hell fire_, sir," said the boy emphatically, as though it were something to look forward to rather than shun. "take time, my boy," said maule; "don't answer hurriedly; think it over. suppose, now, you were accused of stealing an apple; how would that be in the next world, think you?" "_hell fire_, my lord!" "very good indeed. now let us suppose that you were disobedient to your parents, or to one of them; what would happen in that case?" "_hell fire_, my lord!" "exactly; very good indeed. now let me take another instance, and suppose that you were sent for the milk in the morning, and took _just a little sip_ while you were carrying it home; how would that be as regards your future state?" "_hell fire_!" repeated the boy. upon this clark suggested that the lad's absolute ignorance of the nature of an oath and divine things rendered it imprudent to call him. "i don't know about that," said maule; "he seems to me to be very sound, and most divines will tell you he is right." "he does not seem to be competent," said the counsel. "i beg your pardon," returned the judge, "i think he is a very good little boy. he thinks that for every wilful fault he will go to hell fire; and he is very likely while he believes that doctrine to be most strict in his observance of truth. if you and i believed that such would be the penalty for every act of misconduct we committed, we should be better men than we are. let the boy be sworn." on one occasion, before maule, i had to defend a man for murder. it was a terribly difficult case, because there was no defence except the usual one of insanity. the court adjourned for lunch, and woollet (who was my junior) and i went to consultation. i was oppressed with the difficulty of my task, and asked woollet what he thought i could do. "oh," said he in his sanguine way, "make a hell of a speech. you'll pull him through all right. let 'em have it." "i'll give them as much burning eloquence as i can manage," said i, in my youthful ardour; "but what's the use of words against facts? we must really stand by the defence of insanity; it is all that's left." "call the clergyman," said woollet; "he'll help us all he can." with that resolution we returned to court. i made my speech for the defence, following woollet's advice as nearly as practicable, and really blazed away. i think the jury believed there was a good deal in what i said, for they seemed a very discerning body and a good deal inclined to logic, especially as there was a mixture of passion in it. we then called the clergyman of the village where the prisoner lived. he said he had been vicar for thirty-four years, and that up to very recently, a few days before the murder, the prisoner had been a regular attendant at his church. he was a married man with a wife and two little children, one seven and the other nine. "did the wife attend your ministrations, too?" asked maule. "not so regularly. suddenly," continued the vicar, after suppressing his emotion, "without any apparent cause, the man became _a sabbath-breaker_, and absented himself from church." this evidence rather puzzled me, for i could not understand its purport. maule in the meantime was watching it with the keenest interest and no little curiosity. he was not a great believer in the defence of insanity--except, occasionally, that of the solicitor who set it up--and consequently watched the vicar with scrutinizing intensity. "have you finished with your witness, mr. woollet?" his lordship inquired. "yes, my lord." maule then took him in hand, and after looking at him steadfastly for about a minute, said,-- "you say, sir, that you have been vicar of this parish for _four-and-thirty years_?" "yes, my lord." "and during that time i dare say you have regularly performed the services of the church?" "yes, my lord." "did you have week-day services as well?" "every tuesday, my lord." "and did you preach your own sermons?" "with an occasional homily of the church." "your own sermon or discourse, with an occasional homily? and was this poor man a regular attendant at all your services during the whole time you have been vicar?" "until he killed his wife, my lord." "that follows--i mean up to the time of this sabbath-breaking you spoke of he regularly attended your ministrations, and then killed his wife?" "exactly, my lord." "never missed the sermon, discourse, or homily of the church, sunday or week-day?" "that is so, my lord." "did you write your own sermons, may i ask?" "oh yes, my lord." maule carefully wrote down all that our witness said, and i began to think the defence of insanity stood on very fair grounds, especially when i perceived that maule was making some arithmetical calculations. but you never could tell by his manner which way he was going, and therefore we had to wait for his next observation, which was to this effect:-- "you have given yourself, sir, a very excellent character, and doubtless, by your long service in the village, have richly deserved it. you have, no doubt, also won the affection of all your parishioners, probably that of the bishop of your diocese, by your incomparable devotion to your parochial duties. the result, however, of your indefatigable exertions, so far as this unhappy man is concerned, comes to this--" his lordship then turned and addressed his observations on the result to me. "this gentleman, mr. hawkins, has written with his own pen and preached or read with his own voice to this unhappy prisoner about _one hundred and four sunday sermons or discourses, with an occasional homily, every year_." there was an irresistible sense of the ludicrous as maule uttered, or rather growled, these words in a slow enunciation and an asthmatical tone. he paused as if wondering at the magnitude of his calculations, and then commenced again more slowly and solemnly than before. "these," said he, "added to the week-day services--make--exactly _one hundred and fifty-six sermons, discourses, and homilies for the year_." (then he stared at me, asking with his eyes what i thought of it.) "these, again, being continued over a space of time, comprising, as the reverend gentleman tells us, no less than _thirty-four years_, give us a grand total of _five thousand three hundred and four sermons, discourses, or homilies_ during this unhappy man's life." maule's eyes were now riveted on the clergyman as though he were an accessory to the murder. "five thousand three hundred and four," he repeated, "by the same person, however respectable and beloved as a pastor he might be, was what few of us could have gone through unless we were endowed with as much strength of mind as power of endurance. i was going to ask you, sir, did the idea ever strike you when you talked of this unhappy being suddenly leaving your ministrations and turning sabbath-breaker, that after thirty-four years he might want a little change? would it not be reasonable to suppose that the man might think he had had enough of it?" "it might, my lord." "and would not that in your judgment, instead of showing that he was insane, prove that he was _a very sensible man_?" the vicar did not quite assent to this, and as he would not dissent from the learned judge, said nothing. "and," continued maule, "that he was perfectly sane, although he murdered his wife?" all this was very clever, not to say facetious, on the part of the learned judge; but as i had yet to address the jury, i was resolved to take the other view of the effect of the vicar's sermons, and i did so. i worked maule's quarry, i think, with some little effect: for after all his most strenuous exertions to secure a conviction, the jury believed, probably, that no man's mind could stand the ordeal; and, further, that any doubt they might have, after seeing the two children of the prisoner in court dressed in little black frocks, and sobbing bitterly while i was addressing them, would be given in the prisoner's favour, which it was. this incident in my life is not finished. on the same evening i was dining at the country house of a mr. hardcastle, and near me sat an old inhabitant of the village where the tragedy had been committed. "you made a touching speech, mr. hawkins," said the old inhabitant. "well," i answered, "it was the best thing i could do in the circumstances." "yes," he said; "but i don't think you would have painted the little home in such glowing colours if you had seen what i saw last week when i was driving past the cottage. no, no; i think you'd have toned down a bit." "what was it?" i asked. "why," said the old inhabitant, "the little children who sobbed so violently in court this morning, and to whom you made such pathetic reference, were playing on an ash-heap near their cottage; and they had a poor cat with a string round its neck, swinging backwards and forwards, and as they did so they sang,-- this is the way poor daddy will go! this is the way poor daddy will go!' such, mr. hawkins, was their excessive grief!" yes, but it got the verdict. chapter vi. an incident on the road to newmarket. my first visit to newmarket heath had one or two little incidents which may be interesting, although of no great importance. the newmarket of to-day is not quite the same newmarket that it was then: many things connected with it have changed, and, above all, its frequenters have changed; and if "things are not what they seem," they do not seem to me, at all events, to be what they were "in my day." sixty years is a long space of time to traverse, but i do so with a very vivid recollection of my old friend charley wright. it was on a bright october morning when we set out, and glad enough was i to leave the courts at westminster and the courts of the temple--glad enough to break loose from the thraldom of nothing to do and get away into the beautiful country. charley and i were always great friends; we had seen so much together, especially of what is called "the world," which i use in a different sense from that in which we were now to seek adventures. we had seen so much of its good and evil, its lights and shades, and had so many memories in common, that they formed the groundwork of a lasting friendship. he was the only son of an almost too indulgent father, who was the very best example of an old english gentleman of his day you could ever meet. he also had seen a good deal of life, and was not unfamiliar with any of its varied aspects. he was intellectual and genial, and dispensed his hospitality with the most winning courtesy. to me he was all kindness, and i have a grateful feeling of delight in being able in these few words to record my affectionate reverence for his memory. it was at his house in pall mall that i met john leech and percival leigh. but i digress as my mind goes back to these early dates, and unless i break away, charley and i will not reach newmarket in time for the first race. it happened that when we made this memorable visit i had an uncle living at the priory at royston, which was some five-and-twenty miles from newmarket, where the big handicap, i think the cesarewitch, was to be run the following day, or the next--i forget which. but an interesting episode interrupted our journey to the heath. to our surprise, and no little to our delight, there was to be an important meeting of the "fancy" to witness a great prize-fight between jack brassy and ben caunt. ben caunt was the greatest prize-fighter, both in stature and bulk, as well as in strength, i ever saw. he looked what he was--then or soon after--the champion of the world. brassy, too, was well made, and seemed every whit the man to meet caunt. the two, indeed, were equally well made in form and shape, and as smooth cut as marble statues when they stripped for action. the advertisements had announced that the contest was to come off at, "or as near thereto as circumstances permitted" (circumstances here meaning the police), the village of little bury, near saffron walden. at the little inn of the village some of the magnates of the ring were to assemble on the morning of the fight for an early breakfast, to which charley and i had the good fortune to be invited by jack brassy's second, peter crawley, another noted pugilist of his day. it was different weather from that we enjoyed in the early morning, for the rain was now pouring down in torrents, and we had a drive of no less than fifteen miles before us to the scene of action. vehicles were few, and horses fewer. nothing was to be had for love or money, as it seemed. but there was at last found one man who, if he had little love for the prize-ring, had much reverence for the golden coin that supported it. he was a quaker. he had an old gig, and, i think, a still older horse, both of which i hired for the journey--the quaker, of course, pretending that he had no idea of any meeting of the "fancy" whatever. nor do i suppose he would know what that term implied. if ever any man in the world did what young men are always told by good people to do--namely, to persevere--i am sure we did, charley and i, with the quaker's horse. whether he suspected the mission on which we were bent, or was considering the danger of such a scene to his morals, i could not ascertain, but never did any animal show a greater reluctance to go anywhere except to his quiet home. your happiness at these great gatherings depended entirely upon the distance or proximity of the police. if they were pretty near, the landlord of the inn would hesitate about serving you, and if he did, would charge a far higher price in consequence of the supposed increased risk. he would never encourage a breach of the peace in defiance of the county magistrates, who were the authority to renew his licence at brewster sessions. so much, then, if the officers of justice were _near_. if they happened to be absent--which, as i have said, occasionally occurred when a big thing was to come off--there was then a dominant feeling of social equality which you could never see manifested so strongly in any other place. a gentleman would think nothing of putting his fingers into your pockets and abstracting your money, and if you had the hardihood to resent the intrusion, would think less of putting his fist into your eyes. we were by no means certain, as i learned, that our fight would come off after all, for it appeared the magistrates had given strict and specific instructions to the police that no combat was to take place in the county of essex. consequently the parties whose duty it was to make preparations had fled from that respectable county and gone away towards six mile bottom, just in one of the corners of cambridgeshire, as if the intention was that the dons of the university should have a look in. constables slept more soundly in cambridgeshire than in essex. moreover, the essex magistrates would themselves have a moral right to witness the fight if it did not take place in their county. thus we set out for the rendezvous. charley soon discovered that our steed was not accustomed to the whip, for instead of urging him forward it produced the contrary effect. however, we got along by slow degrees, and when we came up with the crowd--oh! such a scene i had never witnessed in my life, nor could have conceived it possible anywhere on this earth or anywhere out of that abyss the full description of which you will find in "paradise lost." it was a procession of the blackguardism of all ages and of all countries under heaven. the sexes were apparently in equal numbers and in equal degrees of ugliness and ferocity. there were faces flat for want of noses, and mouths ghastly for want of teeth; faces scarred, bruised, battered into every shape but what might be called human. there were fighting-men of every species and variety--men whose profession it was to fight, and others whose brutal nature it was; there were women fighters, too, more deadly and dangerous than the men, because they added cruelty to their ferocity. innumerable women there were who had lost the very nature of womanhood, and whose mouths were the mere outlet of oaths and filthy language. their shrill clamours deafened our ears and subdued the deep voices of the men, whom they chaffed, reviled, shrieked at, yelled at, and swore at by way of _fun_. amidst this turbulent rabble rode several members of the peerage, and even ministerial supporters of the "noble art," exchanging with the low wretches i have mentioned a word or two of chaff or an occasional laugh at the grotesque wit and humour which are never absent from an english crowd. as we approached the famous scene, to which every one was looking with the most intense anticipation, the crowd grew almost frenzied with expectancy, and yet the utmost good-humour prevailed. in this spirit we arrived at bourne bridge, and thence to the place of encounter was no great distance. it was a little field behind a public-house. every face was now white with excitement, except the faces of the combatants. they were firm set as iron itself. trained to physical endurance, they were equally so in nerve and coolness of temperament, and could not have seemed more excited than if they were going to dinner instead of to one of the most terrible encounters i ever witnessed. to those who have never seen an exhibition of this kind it was quite amazing to observe with what rapidity the ropes were fixed and the ring formed; nor were the men less prompt. into the ring they stepped with their supporters, or seconds, and in almost an instant the principals had shaken hands, and were facing each other in what well might be deadly conflict. there were illustrious members of all classes assembled there, members probably of all professions, men who afterwards, as i know, became great in history, politics, law, literature, and religion; for it was a very great fight, and attracted all sorts and conditions from all places and positions. nothing since that fight, except tom sayers and the "benicia boy," has attracted so goodly and so fashionable an audience and so fierce an assembly of blackguards. but in the time of the latter battle the decadence of the ring was manifest, and was the outcome of what is doubtless an increasing civilization. at the time of which i am now speaking the prize ring was one of our fashionable sports, supported by the wealthy of all classes, and was supposed to contribute to the manliness of our race; consequently our distinguished warriors, as well as the members of our most gentle professions, loved a good old-fashioned english "set-to," and nobody, as a rule, was the worse for it, although my poor brother jack never recovered his half-crowns. we had been advised to take our cushions from the gig to sit upon, because the straw round the ring was soddened with the heavy rains, and i need not say we found it was a very wise precaution. the straw had been placed round the ring for the benefit of the _élite_, who occupied front seats. the fight now began, and, i must repeat, i never saw anything like it. both pugilists were of the heaviest fighting weights. caunt was a real giant, ugly as could be by the frequent batterings he had received in the face. his head was like a bull-dog's, and so was his courage, whilst his strength must have been that of a very samson; but if it was, it did not reside in his hair, for that was short and close as a mouse's back. at first i thought brassy had the best of it; he was more active, being less ponderous, and landed some very ugly ones, cutting right into the flesh, although caunt did not appear to mind it in the least. brassy, however, did not follow up his advantage as i thought he ought to have done, and in my opinion dreaded the enormous power and force of his opponent in the event of his "getting home." with the usual fluctuations of a great battle, the contest went on until nearly a _hundred rounds_ were fought, lasting as many minutes, but no decisive effect was as yet observable. after this, however, brassy could not come up to time. the event, therefore, was declared in caunt's favour, and his opponent was carried off the field on a hurdle into the public-house, where i afterwards saw him in bed. thus terminated the great fight of the day, but not thus my day's adventures. the sport was all that the most enthusiastic supporters of the ring could desire. it no doubt had its barbarous aspects, regarded from a humanitarian point of view, but it was not so demoralizing as the spectacle of some poor creature risking his neck in a performance for which the spectator pays his sixpence, and the whole excitement consists in the knowledge that the actor may be dashed to pieces before his eyes. it was time now to leave the scene, so charley and i went to look for our gig (evidence of gentility from the time of thurtell and hunt's trial for the murder of mr. weare). alas! our respectability was gone--i mean the gig. in vindication of the wisdom and foresight of charley and myself, i should like to mention that we had entrusted that valuable evidence of our status to the keeping of a worthy stranger dressed in an old red jacket and a pair of corduroy trousers fastened with a wisp of hay below the knees. when we arrived at the spot where he promised to wait our coming, he was gone, the horse and gig too; nor could any inquiries ascertain their whereabouts. whether this incident was a judgment on the quaker, as wright suggested, or one of the inevitable incidents attendant on a prize-fight, i am not in a position to say; but we thought it served the quaker right for letting us a horse that would not go until the gentleman in the red jacket relieved us of any further trouble on that account. mistakes are so common amongst thieves that one can never tell how the horse got away; but if i were put on my oath, knowing the proclivities of the animal, i should say that he was backed out of the field. we were now, as it seemed, the most deplorable objects in creation: without friends and without a gig, wet through, shelterless, amidst a crowd of drunken, loathsome outcasts of society, with only one solitary comfort between us--a pipe, which charley enjoyed and i loathed. drink is always quarrelsome or affectionate, generally the one first and the other after. when the tears dry, oaths begin, and we soon found that the quarrelsome stage of the company had been reached. amidst all this excitement we had not forgotten that this little matter of the prize-fight was but an incident on our journey to newmarket. we knew full well that our present appearance would have found no recognition in the mall. but we cared nothing for the mall, as we were not known by the fashion in the racing world; and as for the others, we should like to avoid them in any world. you will wonder in these circumstances what we did. we waited where we were through the whole of that wet afternoon, and then, on a couple of hacks--how we obtained them i don't know; i never asked charley, and nothing of any importance turns upon them--we arrived at our comfortable royston quarters about eight o'clock, tired to death. we were received with a hearty welcome by my uncle, who was much entertained with our day's adventures. he liked my description of the fight, especially when i told him how brassy "drew caunt's claret," and showed such other knowledge of the scientific practice that no one could possibly have learnt had he not read up carefully _bell's life_ for the current week. i am sure my uncle thought i was one of the best of nephews, and i considered him in reality "my only uncle." long, thought i, may he prove to be; and yet i never borrowed a penny from him in my life. on the next day, fully equipped, and with all that was necessary for our distinguished position, we set out for newmarket heath, even now the glory of the racing world, not forgetting goodwood, which is more or less a private business and fashionable picnic. i shall not attempt to describe newmarket. no one can describe, the indescribable. i will only say it was not the newmarket which our later generation knows. it was then in its crude state of original simplicity. there were no stands save "the duke's," at the top of the town, and one other, somewhat smaller and nearer to the present grand stand. those who could afford to do so rode on horseback about the heath; those who could not walked if they felt disposed, or sat down on the turf--the best enjoyment of all if you are tired. we did all three: we rode, walked, and sat down. at last, after a thoroughly enjoyable outing, such as the bar knows nothing of in these respectable times, we returned to our business quarters in the temple. chapter vii. an episode at hertford quarter sessions. hearsay is not, as a rule, evidence in a court of justice. there are one or two exceptions which i need not mention. if you want, therefore, to say what smith said, you cannot say it, but must call smith himself, and probably he will swear he never said anything of the sort. the marquis of salisbury, in the early days that i speak of, was a kind-hearted chairman, and would never allow the quibble of the lawyer to stand in the way of justice to the prisoner. in those days at sessions they were not so nice in the observances of mere forms as they are now, and you could sometimes get in something that was not exactly evidence, strictly speaking, in favour of a prisoner by a side-wind, as it were, although it was not the correct thing to do. it happened that i was instructed to defend a man who had been committed to hertford quarter sessions on a charge of felony. the committing magistrates having refused to let the man out on bail, an application was made at judges' chambers before mr. baron martin to reverse that decision, which he did. "not a rag of evidence," said the attorney's clerk when he delivered the little brief--"not a shadder of evidence, mr. 'awkins. it's a walk-over, sir." i knew that meant a nominal fee, but wondered how many more similes he was going to deliver instead of the money. but to the honour of the solicitor, i am bound to say that point was soon cleared up, and the practice of magistrates, supposed to be in their right minds, committing people for trial with no "shadder" of evidence against them, it now became my duty to inquire into. i asked how he knew there was no evidence, and whether the man bore a respectable character. "oh, i was up before the baron," he answered. ("yes," i thought, "but you must wake very early if you are up too soon for baron martin.") "and the baron said, as to grantin' bail, 'certainly he should; the magistrates had no business to commit him for trial, for there was not a rag of a case against the man.' so you see, sir, it's a easy case, mr. 'awkins; and as the man's a poor man, we can't mark much of a fee." the usual complaint with quarter sessions solicitors. such were my instructions. i was young in practice at that time, and took a great deal more in--i mean in the way of credulity--than i did in after life. nor was i very learned in the ways of solicitors' clerks. i knew that hearsay evidence, even in the case of a judge's observation, was inadmissible, and therefore what the baron said could not strictly be given; but i did not know how far you might go in the country, nor what the marquis's opinion might be of the baron. i therefore mentioned it to rodwell, who, of course, was instructed for the prosecution; he was in everything on one side or the other--never, i believe, on both. this stickler for etiquette was absolutely shocked; he held up his hands, began a declamation on the rules of evidence, and uttered so many pharisaical platitudes that i only escaped annihilation by a hair's-breadth. he was always furious on etiquette. much annoyed at his bumptious manner, i was resolved now, come what would, to pay him off. i wanted to show him he was not everybody, even at hertford sessions. so when the case came on and the policeman was in the box, i rose to cross-examine him, which i did very quietly. "now, policeman, i am going to ask you a question; but pray don't answer it till you are told to do so, because my learned friend may object to it." rodwell sprang to his feet and objected at once. "what is the question?" asked the marquis. "we must hear what the question is before i can rule as to your objection, mr. rodwell." this was a good one for mr. rodwell, and made him colour up to his eyebrows, especially as i looked at him and smiled. "the question, my lord," said i, "is a very simple one: did not mr. baron martin say, when applied to for bail, that there was not a rag of a case against the prisoner?" "this is monstrous!" said the learned stickler for forms and ceremonies--"monstrous! never heard of such a thing!" it might have been monstrous, but it gave me an excellent grievance with the jury, even if the marquis did not see his way to allow the question; and a grievance is worth something, if you have no defence. the marquis paid great attention to the case, especially after that observation of the baron's. although he regretted that it could not be got in as evidence, he was good enough to say i should get the benefit of it with the jury. all this time there was a continuous growl from my learned friend of "monstrous! monstrous!"--so much so that for days after that word kept ringing in my ears, as monotonously as a muffin bell on a sunday afternoon. but i believe he was more irritated by my subsequent conduct, for i played round the question like one longing for forbidden fruit, and emphasized the objection of my learned friend now and again: all very wrong, i know now, but in the heyday of youthful ardour how many faults we commit!" "just tell me," i said to the policeman, "did the learned judge--i mean mr. baron martin--seem to know what he was about when he let this man out on bail?" "o yes, sir," said the witness, "he knowed what he was about, right enough," stroking his chin. "you may rely on that," said the marquis. "you may take that for granted, mr. hawkins." "i thought so, my lord; there is not a judge on the bench who can see through a case quicker than the baron." the grumbling still continued. "now, then, don't answer this." "you have already ruled, my lord," said rodwell. "this is another one," said i; "but if it's regular to keep objecting before the prisoner's counsel has a chance of putting his question, i sit down, my lord. i shall be allowed, probably, to address the jury--that is, if mr. rodwell does not object." the noble marquis, on seeing my distress, said,-- "mr. hawkins, the question needs no answer from the policeman; you will get the benefit of it for what it is worth. the jury will draw their own conclusions from mr. rodwell's objections." as they did upon the whole case, for they acquitted, much to mr. rodwell's annoyance. "now," said the marquis, "let the officer stand back. i want to ask what the baron really did say when he let this man out on bail." "my lord," answered the witness, "his lordship said as how he looked upon the whole lot as a _gang of thieves_." "you've got it now," said rodwell. "and so have you," said i. "you should not have objected, and then you would have got the answer he has just given." chapter viii. a dangerous situation--a forgotten prisoner. i had been to paris in the summer of -- for a little holiday, and was returning in the evening after some races had taken place near that city. i had not attended them, and was, in fact, not aware that they were being held; but i soon discovered the fact from finding myself in the midst of the motley crowds which always throng railway stations on such occasions, only on this particular day they were a little worse than usual. the race meeting had brought together the roughs of all nations, and especially from england. as it seemed to me, my fellow-countrymen always took the lead in this kind of competition. i was endeavouring to get to the booking-office amongst the rest of the crowd, and there was far more pushing and struggling than was at all necessary for that purpose. presently a burly ruffian, with a low east end face of the slum pattern and complexion, rolled out a volley of oaths at me. he asked where the ---- i was pushing and what game i was up to, as though i were a professional pickpocket like himself. he had the advantage of me in being surrounded by a gang of the most loathsome blackguards you could imagine, while i was without a friend. i spoke, therefore, very civilly, and said the crowd was pushing behind and forcing me forward. the brute was annoyed at my coolness, and irritated all the more. hitherto his language had not been strong enough to frighten me, so he improved its strength by some tremendous epithets, considerably above proof. i think he must have enjoyed the exclusive copyright, for i never knew his superlatives imitated. he finished the harangue by saying that he would knock my head off if i said another word. to this i replied, with a look stronger than all his language, "no, you won't." my look must have been strong, because the countenances of the bystanders were subdued. "why won't i, muster?" he asked. "for two reasons," i said: "first, because you won't try; and secondly, because you could not if you did." he was somewhat tamed, and then i lifted my hat, so that he could see my close-cropped hair, which was as short as his own, only not for the same reason. "you don't seem to know who i am," i added, hoping he would now take me for a member of the prize-ring. but my appearance did not frighten him. i had nothing but my short-cropped hair to rely on; so in self-defence i had to devise another stratagem. to frighten him one must look the ruffian in the face, or look the ruffian that he was. he continued to abuse me as we passed on our way to the booking-office window, and i have no doubt he and his gang were determined to rob me. one thing was common between us--we had no regard for one another. i now assumed as bold a manner as i could and a rough east end accent. "look-ee 'ere," said i: "i know you don't keer for me no more 'an i keers for you. i ain't afraid o' no man, and i'll tell you what it is: it's your ignorance of who i am that makes you bold. i know you ain't a bad un with the maulers. let's have no more nonsense about it here. i'll fight you on monday week, say, for a hundred a side in the butts, and we'll post the money at peter crawley's next saturday. what d'ye say to that?" peter crawley, whom i have already mentioned as inviting me to breakfast, was like a thunderclap to him. i must be somebody if i knew peter crawley, and now he doubtless bethought him of my short hair. i must confess if the fellow had taken me at my word i should have been in as great a funk as he was, but he did not. my challenge was declined. * * * * * a curious incident happened once in the rural district of saffron walden. it is a borough no doubt, but it always seemed to me to be too small for any grown-up thing, and its name sounded more like a little flower-bed than anything else. on the occasion of which i speak there was great excitement in the place because they had got a prisoner--an event which baffled the experience of the oldest inhabitant. the recorder was an elderly barrister, full of pomp and dignity; and, like many of his brother recorders, had very seldom a prisoner to try. you may therefore imagine with what stupendous importance he was invested when he found that the rural magistrates had committed a little boy for trial for stealing a _ball of twine_. think of the grand jury filing in to be "charged" by this judicial dignitary. imagine his charge, his well-chosen sentences in anticipation of the one to come at the end of the sitting. think of his eloquent disquisition on the law of larceny! it was all there! after the usual proclamation against vice and immorality had been read, and after the grand jury had duly found a true bill, the next thing was to find the prisoner and bring him up for trial. we may not be sentimental, or i might have cried, "god save the child!" as the usher said, "god save the queen!" but "suffer little children to come unto me" would not have applied to our jails in those miserable and inhuman times. mercy and sympathy were out of the question when you had law and order to maintain, as well as all the functionaries who had to contribute to their preservation. "put up the prisoner!" said the recorder in solemn and commanding tones. down into the jaws of the cavern below the dock descended the jailer of six feet two--the only big thing about the place. he was a resolute-looking man in full uniform, and i can almost feel the breathless silence that pervaded the court during his absence. time passed and no one appeared. when a sufficient interval had elapsed for the stalwart jailer to have eaten his prisoner, had he been so minded, the recorder, looking up from behind the _times_, which he appeared to be reading, asked in a very stern voice why the prisoner was not "put up." they did not put up the boy, but the jailer, with a blood-forsaken face, put himself up through the hole, like a policeman coming through a trap-door in a pantomime. "i beg your honour's pardon, my lord, but they have forgot to bring him." "forgot to bring him! what do you mean? where is he?" "they've left him at chelmsford, your honour." it seemed there was no jail at saffron walden, because, to the honour of the borough be it said, they had no one to put into it; and this small child had been committed for safe custody to chelmsford to wait his trial at sessions, and had been there so long that he was actually forgotten when the day of trial came. i never heard anything more of him; but hope his small offence was forgotten as well as himself. chapter ix. the only "racer" i ever owned--sam linton, the dog-finder. i have been often asked whether i ever owned a racer. in point of fact, i never did, although i went as near to that honour as any man who never arrived at it--a racer, too, who afterwards carried its owner's colours triumphantly past the winning-post. the reader may have been shocked at the story i told of those poor ill-brought-up children whose mother was murdered, from the natural feeling that if pure innocence is not to be found in childhood, where are we to seek it? i will indicate the spot in three words--_on the turf_. true, you will find fraud, cunning, knavery, and robbery, but you will find also the most unsophisticated innocence. i went as a spectator, a lover of sport, and a lover of horses; and took more delight in it than i ever could in any haunt of fashionable idleness. i amused myself by watching the proceedings of the betting-ring, where there is a good deal more honesty than in many places dignified by the name of "marts." but if there was no innocence on the turf, rogues could not live; they are not cannibals--not, at all events, while they can obtain tenderer food. and are there not commercial circles also which could not exist without their equally innocent supporters? experience may be a dear school, but its lessons are never forgotten. a very little should go a long way, and the wisest make it go farthest. if any one wants a picture of innocence on the turf, let me give one of my own drawing, taken from nature. all my life i have loved animals, especially horses and dogs; and all field sports, especially hunting and racing. but i went on the turf with as much simplicity as a girl possesses at her first ball, knowing nothing about public form or the way to calculate odds, to hedge, or do anything but wonder at the number of fools there were in the world. i did not know "a thing or two," like the knowing ones who lose all they possess. who could believe that men go about philanthropically to inform the innocent how to "put their money on," while they carefully avoid putting on their own? tipsters, in short, were no part of my racing creed. i was not so ignorant as that. i believed in a good horse quite as much as lord rosebery does, and much more than i believed in a good rider. but there were even then honest jockeys, as well as unimpeachable owners. all you can say is, honesty is honesty everywhere, and you will find a good deal of it on the turf, if you know where to look for it; and its value is in proportion to its quantity. the moment you depart a hair's-breadth from its immaculate principle there is no medium state between that and roguery. however, be that as it may, i was once the owner of a pedigree thoroughbred called dreadnought, which was presented to me when a colt. dreadnought's dam collingwood was by muley moloch out of barbelle. dreadnought was good for nothing as a racer, and had broken down in training. as a castaway he was offered to me, and i gladly accepted the present. as he was too young to work, i sent him down to ---- park, to be kept till he was fit for use. he was there for a considerable time, and was then sent back in a neglected and miserable condition. i rode him for some time, until one day he took me to richmond park, and on going up the hill fell and cut both his knees to pieces and mine as well. this was a sad mishap, and, of course, i could have no further confidence in poor dreadnought, fond of him as i was; so he was placed under the care of a skilful veterinary surgeon, who gave him every attention. his bill was by no means heavy, and he brought him quite round again. in the course of time he acquired a respectable appearance, although his broken knees, to say nothing of his "past," prevented his becoming valuable so far as i was concerned. certainly i had no expectation of his ever going on to the turf. how could one believe that any owner would think of entering him for a race? one morning my groom came to me and said, "i think, sir, i can find a purchaser for dreadnought, if you have no objection to selling him; he's a gentleman, sir, who would take great care of him and give him a good home." "sell him!" said i. "well, i should not object if he found a good master. i cannot ride him, and he is practically useless. what price does he seem inclined to offer?" "well, he ain't made any offer, sir; but he seems a good deal took with him and to like the look of him. perhaps, sir, he might come and see you. i told him that i thought a matter o' _fifteen pun_ might buy un. i dunnow whether i did right, sir, but i told un you would never take a farden less. i stuck to that." "no," said i, "certainly not, when the vet.'s bill was twelve pounds ten--not a farthing less, james." when the proposed purchaser came, he said, "it's a poor horse--a very poor horse; he wants a lot of looking after, and i shouldn't think of buying him except for the sake of seeing what i could do with him, for i am not fond of lumber, mr. hawkins--i don't care for lumber." it was straightforward, but i did not at the time see his depth of feeling. he was evidently intending to buy him out of compassion, as he had some knowledge of his ancestors. but i stuck to my fifteen pounds hard and fast, and at last he said, "well, mr. hawkins, i'll give you all you ask, if so be you'll throw in the saddle and bridle!" i was tired of the negotiations, and yielded; so away went poor dreadnought with his saddle and bridle, never for me to look on again. i was sorry to part with him, and the more so because his life had been unfortunate. but i was deceived in him as well as in his new master. from me he had concealed his merits, only to reveal them, as is often the case with latent genius, when some accidental opportunity offered. at that time bromley in kent was a central attraction for a great many second-class patrons of the sporting world. i know little about the events that were negotiated at bromley and other small places of the kind, but there was, as i have been informed, a good deal of blackguardism and pickpocketing on its course and in its little primitive streets--lucky if you came out of them with only one black eye. they would steal the teeth out of your mouth if you did not keep it shut and your eyes open. however, bromley races came on some time after the sale of my dreadnought.... the next morning my groom came with a look of astonishment that seemed to have kept him awake all night, and said,-- "you'll be surprised to hear, sir, that our 'oss has won a fifty-pound prize at bromley, and a pot of money besides in bets for his owner." "won a prize!" said i. "was it by standing on his head?" "won a _race_, sir." "then it must have been a walk-over." "oh no, sir; he beat the cracks, beat the favourites, and took in all the knowing ones. i always said there was something about that there 'oss, sir, that i didn't understand and nobody couldn't understand, sir." i was absolutely dumbfounded, knowing very little about "favourites" or "cracks." my groom i knew i could rely upon, for he always seemed to be the very soul of honour. i thought at first he might have been misled in some bromley taproom, but afterwards found that it was all true--he had heard it from the owner himself, in whom the public seemed to place confidence, for they laid very long odds against dreadnought. the animal was famous, but not in that name; he had, like most honest persons, an alias. how he achieved his victory is uncertain; one thing, however, is certain--it must have been a startling surprise to dreadnought to find himself in a race at all, and still more astonishing to find himself in front. "how many ran?" i asked. "three, sir; two of 'em crack horses." at this time i took little interest in pedigrees, and knew nothing of the "cracks," so the names of those celebrated animals which dreadnought had beaten are forgotten. one of them, it appeared, had been heavily backed at to , but dreadnought did not seem to care for that; he ran, not on his public form, but on his merits. my eyes were opened at last, and the whole mystery was solved when james told me that _all three horses belonged to the same owner_! from that time to this i never heard what became of dreadnought, and never saw the man who bought him, even in the dock. it is strange, however, that animals so true and faithful as dogs and horses should be instruments so perverted as to make men liars and rogues; while for intelligence many of them could give most of us pounds and pass us easily at the winning-post. speaking of dogs reminds me of dog-stealers and _their_ ways, of which some years ago i had a curious experience. i have told the story before, but it has become altered, and the true one has never been heard since. indeed, no story is told correctly when its copyright is infringed. there was a man at the time referred to known as old sam linton, the most extraordinary dog-fancier who ever lived, and the most curious thing about him was that he always fancied other people's dogs to his own. he was a remarkable dog-_finder_, too. in these days of dogs' homes the services of such a man as linton are not so much in request; but he was a home in himself, and did a great deal of good in his way by restoring lost dogs to their owners; so that it became almost a common question in those days, when a lady lost her pet, to ask if she had made any inquiry of old sam linton. he was better than the wise woman who indicated in some mysterious jargon where the stolen watch might or might not be found in the distant future, for old sam _brought_ you the very dog on a _specified day_! the wise woman never knew where the lost property was; old sam did. i dare say he was a great blackguard, but as he has long joined the majority, it is of no consequence. there was one thing i admired about sam: there was a thorough absence in him of all hypocrisy and cant. he professed no religion whatever, but acted upon the principle that a bargain was a bargain, and should be carried out as between man and man. that was his idea, and as i found him true to it, i respected him accordingly, and mention his name as one of the few genuinely honest men i have met. the way i made his acquaintance was singular. i was dining with my brother benchers at the middle temple hall, when a message was brought that a gentleman would like to see me "partickler" after dinner, if i could give him a few minutes. when i came out of the hall, there was a man looking very like a burglar. his dress, or what you should call his "get-up," is worth a momentary glance. he had a cat-skin cap in his hand about as large as a frying-pan, and nearly of the same colour--this he kept turning round and round first with one hand, then with both--a pea-jacket with large pearl buttons, corduroy breeches, a kind of moleskin waistcoat, and blucher shoes. he impressed one in a moment as being fond of drink. on one or two occasions i found this quality of great service to me in matters relating to the discovery of lost dogs. drink, no doubt, has its advantages to those who do not drink. "muster orkins, sir," said he, "beggin' your pardon, sir, but might i have a word with you, muster orkins, if it ain't a great intrusion, sir?" i saw my man at once, and showed him that i understood business. "you are sam linton?" it took his breath away. he hadn't much, but poor old sam did not like to part with it. in a very husky voice, that never seemed to get outside his mouth, he said,-- "_yus, sur_; that's it, mr. orkins." then he breathed, "yer 'onner, wot i means to say is this--" "what do you want, linton? never mind what you mean to say; i know you'll never say it." "well, mr. orkins, sir, ye see it is as this: you've lost a little dorg. well, you'll say, 'how do you know that 'ere, sam?' 'well, sir,' i says, ''ow don't i know it? ain't you bin an' offered _fourteen pun_ for that there leetle dorg? why, it's knowed dreckly all round mile end--the werry 'ome of lorst dorgs--and that there dorg, find him when you wool, why, he ain't worth more'n _fourteen bob_, sir.' now, 'ow d'ye 'count for that, sir?" "you've seen him, then?" "not i," says sam, unmoved even by a twitch; "but i knows a party as 'as, and it ain't likely, mr. orkins, as you'll get 'im by orferin' a price like that, for why? why, it stands to reason--don't it, mr. orkins?--it ain't the _dorg_ you're payin' for, but _your feelins_ as these 'ere wagabonds is _tradin' on, mr. orkins_; that's where it is. o sir, it's abominable, as i tells 'em, keepin' a gennelman's dorg." i was perfectly thunderstruck with the man's philosophy and good feeling. "go on, mr. linton." "well, mr. orkins, they knows--damn 'em!--as your feelins ull make you orfer more and more, for who knows that there dorg might belong _to a lidy_, and then _her_ feelins has to be took into consideration. i'll tell 'ee now, mr. orkins, how this class of wagabond works, for wagabonds i must allow they be. well, they meets, let's say, at a public, and one says to another, 'i say, bill,' he says, 'that there dawg as you found 'longs to lawyer orkins; he's bloomin' fond o' dawgs, is lawyer orkins, so they say, and he can pay for it.' 'right you are,' says bill, 'and a d---- lawyer _shall_ pay for it. he makes us pay when we wants him, and now we got him we'll make him pay.' so you see, mr. orkins, where it is, and whereas the way to do it is to say to these fellers--i'll just suppose, sir, i'm you and you're me, sir; no offence, i hope--'well, i wants the dawg back.' well, they says; leastways, i ses, ses i,-- "'lawyer orkins, you lost a dawg, 'ave yer?' "'yes,' ses you, 'i have,' like a gennelman--excuse my imitation, sir--' and i don't _keer a damn for the whelp_!' that's wot you orter say. 'he's only a bloomin' mongrel.'" "very good; what am i to say next, mr. linton?" "'don't yer?' says the tother feller; 'then what the h---- are yer looken arter him for?' "'well,' you ses, mr. orkins, 'you can go to h----. i don't keer for the dawg; he ain't my fancy.'" "a proper place for the whole lot of you, sam." "but, excuse me, mr. orkins, sir, that's for future occasions. this 'ere present one, in orferin' fourteen pun, you've let the cat out o' the bag, and what i could ha' done had you consulted me sooner i can't do now; i could ha' got him for a _fi'-pun note_ at one time, but they've worked on your feelins, and, mark my words, they'll want _twenty pun_ as the price o' that there dawg, as sure as my name's sam linton. that's all i got to say, mr. orkins, and i thought i'd come and warn yer like a man--he's got into bad hands, that there dawg." "i am much obliged, mr. linton; you seem to be a straightforward-dealing man." "well, sir, i tries to act upright and downstraight; and, as i ses, if a man only does that he ain't got nothin' to fear, 'as he, muster orkins?" "when can i have him, sam?" "well, sir, you can have him--let me see--monday was a week, when you lost him; next monday'll be another week, when i found him; that'll be a fortnit. suppose we ses next tooesday week?" "suppose we say to-morrow." "oh!" said sam, "then i thinks you'll be sucked in! the chances are, mr. orkins, you won't see him at all. why, sir, you don't know how them chaps carries on their business. would you believe it, mr. orkins, a gennelman comes to me, and he ses, 'sam,' he ses, 'i want to find a little pet dawg as belonged to a lidy'--which was his wife, in course--and he ses the lidy was nearly out of her mind. 'well,' i ses, 'sir, to be 'onest with you, don't you mention that there fact to anybody but me'--because when a lidy goes out of her mind over a lorst dawg up goes the price, and you can't calculate bank-rate, as they ses. the price'll go up fablous, mr. orkins; there's nothin' rules the market like that there. well, at last i agrees to do my best for the gent, and he says, just as you might say, mr. orkins, just now, 'when can she have him?' well, i told him the time; but what a innercent question, mr. orkins! 'why not before?' says he, with a kind of a angry voice, like yours just now, sir. 'why, sir,' i ses, 'these people as finds dawgs 'ave their feelins as well as losers 'as theirs, and sometimes when they can't find the owner, they sells the animal.' well, they sold this gennelman's animal to a major, and the reason why he couldn't be had for a little while was that the major, being fond on him, and 'avin' paid a good price for the dawg, it would ha' been cruel if he did not let him have the pleasure of him like for a few days--or a week." sam and i parted the best of friends, and, i need not say, on the best of terms i could get. i knew him for many years after this incident, and say to his credit that, although he was sometimes hard with customers, he acted, from all one ever heard, strictly in accordance with the bargain he made, whatever it might be; and what is more singular than all, i never heard of old sam linton getting into trouble. chapter x. why i gave over card-playing. like most men who are not saints, i had the natural instinct for gambling, without any passion for it; but soon found the necessity for suppressing my inclination for cards, lest it should interfere with my legitimate profession. it was necessary to abandon the indulgence, or abandon myself to its temptations. i owe my determination never to play again at cards to the bad luck which befell me on a particular occasion at ascot on the cup day of the year --. i was at that time struggling to make my way in my profession, and carefully storing up my little savings for the proverbial rainy day. having been previously to the epsom summer races, and had such extraordinary good luck, nothing but a severe reverse would have induced me to take the step i did. good luck is fascinating, and invariably leads us on, with bad luck sometimes close behind. i went to epsom with my dear old friend charley wright, and we soon set to work in one of the booths to make something towards our fortunes at _rouge et noir_. the booth was kept by a man who seemed--to me, at all events--to be the soul of honour. i had no reason to speak otherwise than well of him, for i staked a half-crown on the black, and won two half-crowns every time, or nearly every time. i thought it a most excellent game, and with less of the element of chance or skill in it than any game i ever played. my pockets were getting stuffed with half-crowns, so that they bulged, and caused me to wonder if i should be allowed to leave the racecourse alive, for there were many thieves who visited the downs in those days. but my friend charley was with me, and i knew he would be a pretty trustworthy fellow in a row. this, however, was but a momentary thought, for i was too much engrossed in the game and in my good luck to dwell on possibilities. nor did i interest myself in charley's proceedings, but took it for granted that a game so propitious to me was no less so to him. he was playing with several others; who or what they were was of no moment to me. i pursued my game quietly, and picked up my half-crowns with great gladness and with no concern for those who had lost them. presently, however, my attention was momentarily diverted by hearing charley let off a most uncontrollable "d--n!" "what's the matter, charley?" i asked, without lifting my head. "matter!" says charley; "rooked--that's all!" "rooked! that's very extraordinary. i'm winning like anything. look here!" and i pointed to my pockets, which were almost bursting. "yes," said he, "i see how it is: you've been winning on twos to one, and i've been losing on threes." "black's the winning colour to-day, charley--_noir_; you should have backed _noir_. besides, long odds are much too risky. i am quite content with two to one." here there was a general break-up of the party, because charley being out of it as well as several others, it left only one, and, of course, the keeper of the booth was not so foolish, however honourable, to pay me two half-crowns and win only one. so there it ended. that night i made this game a study, and the sensible conclusion came to me that if you would take advantage of the table you should play for the lower stakes, because you have a better chance of winning than those who play high. at least, that was the result of my policy; for while those who played high were ruined, my pockets were filled, and, by that cautious mode of playing, i was so lucky that, had there been enough at threes to one, i could have kept on making money as long as they had any to lose. i changed my half-crowns with the booth-keeper for gold, and reached my chambers safely with the spoil. and how pleasant it was to count it! it has occurred to me since that the keeper of the booth had carefully noted my proceedings (such was my innocence), and that he made his calculations for a future occasion. one thing he was quite sure of--namely, that he would see me again on the first opportunity there was of winning more half-crowns. it is possible that a succession of runs of luck might have put an end to my professional career; it is certain that the opposite result put an end to my card-playing aspirations. in about a fortnight, all eager for a renewal of my epsom experience, i went down to the ascot meeting, taking with me not only all my previous winnings, but my store of savings for the rainy day, and was determined to pursue the same moderate system of cautious play. there was the same booth, the same little flag fluttering on the top, and the same obliging proprietor. he recognized me at once, and looked as if he was quite sure i would be there--as if, in fact, he had been waiting for me. after a pleasant greeting and a few friendly words, i thought it a little odd that a man should be so glad to meet one who had come to fill his pockets at the booth-keeper's expense--at least, i thought this afterwards, not at the time. he looked genuinely pleased, and down i sat once more, quite sure that two to one would beat three. the proprietor kept his eye on my play in a very thoughtful manner, nor was it surprising that he knew his game as well as i; in fact, it turned out that he knew it better. to this day i am unable to explain how he manoeuvred it, how he adjusted his tactics to counteract mine; but that something happened more than mere luck would account for was certain, for, as often as the half-crown went on black, red was the lucky colour. but i persevered on black because it had been my friend at epsom, and down went the half-crowns, to be swept up by the keeper of the booth. i cannot even now explain how it was done. intending to make a good day's work and gather a rich harvest, i took with me every shilling i had in the world--not only my previous winnings, but my hard-earned savings at the bar. i began to lose, but went on playing, in the vain hope--the worst hope of the gambler--of retrieving what i had lost and recovering my former luck. but it was not to be; the table was against me. i forsook my loyalty to black and laid on red. alas! red was no better friend. i lost again, and knew now that all my epsom winnings had found their way once more into the keeper's pocket. a fortnight's loan was all i had of them. it was a pity they had not been given to some charity. but i kept on bravely enough, and did not despair or leave off while i had a half-crown left. that half-crown, however, was soon raked up with the rest into the keeper's bag. i was bankrupt, with nothing in my pocket but twopence and a return ticket from paddington. hopeless and helpless, i had learnt a lesson--a lesson you can only learn in the school of experience. i little thought then that the only certain winner at the gaming-table is _the table itself_, and made up my mind as i walked alone and disappointed through windsor park, on my way to the station, that i would never touch a card again--and i never did. for the first time since setting out in the morning i felt hungry, and bought a pennyworth of apples at a little stall kept by an old woman, and a bottle of ginger-beer. such was my frugal meal; and thus sustained i tramped on, my return ticket being my only possession in the world. i reached paddington with a sorry heart, and walked to the temple, my good resolution my only comfort; but it was all-sufficient for the occasion and for all time to come. chapter xi. "codd's puzzle." having somewhat succeeded in my practice at quarter sessions, i enlarged my field of adventure by attending the old bailey, hoping, of course, to obtain some briefs at that court; and although i abandoned the practice as a rule, i was, in after-life, on many occasions retained to appear in cases which are still fresh in my memory. i was with edwin james, who was counsel for mr. bates, one of the partners of strahan and sir john dean paul, bankers of the strand, and who were sentenced to fourteen years' transportation for fraudulently misappropriating securities of their customers. i was counsel for a young clerk to leopold redpath, the notorious man who was transported for extensive forgeries upon the great northern railway. the clerk was justly acquitted by the jury. my recollection of this period brings back many curious defences, which illustrate the school of advocacy in which i studied. whether they contributed to my future success, i do not know, but that they afforded amusement is proved by my remembering them at all. hertford and st. albans were my chief places, my earliest attachments, and are amongst my pleasantest memories. it seems childish to think of them as scenes of my struggles, for when i come to look back i had no struggles at all. i was merely practising like a cricketer at the nets; there was nothing to struggle for except a verdict when it would not come without some effort. but dear old codd was the man to struggle. he struggled and wriggled; tie him up as tightly as you could, you saw him fighting to get free, as he did in the following great duck case. he was a very amiable old barrister, a fast talker--so fast that he never stayed to pronounce his words--and of an ingenuity that ought to have been applied to some better purpose, such as the making of steam-engines or writing novels, rather than defending thieves. he reminded me on this occasion of the man in the circus who rode several horses at a time. in the case i allude to, he set up no less than _seven defences_ to account for the unhappy duck's finding its way into his client's pocket, and the charm of them all was their variety. inconsistency was not the word to apply reproachfully. inconsistency was codd's merit. he was like a conjurer who asks you to name a card, and as surely as you do so you draw it from the pack. this particular duck case was known long after as "codd's puzzle." "first," says codd, "my client bought the duck and paid for it." he was not the man to be afraid of being asked where. "second," says codd, "my client found it; thirdly, it had been given to him; fourthly, it flew into his garden; fifthly, he was asleep, and some one put it into his pocket." and so the untiring and ingenious codd proceeded making his case unnaturally good. but the strange thing was that, instead of sweeping him away with a touch of ridicule, the young advocate argued the several defences one after the other with great dialectical skill, so that the jury became puzzled; and if the defence had not been so extraordinarily good, there would have been an acquittal forthwith. there had been such a bewildering torrent of arguments that presently codd's head began to swim, and he shrugged his shoulders, meaning thereby that it was the most puzzling case _he_ had ever had anything to do with. at last it became a question whether, amidst these conflicting accounts, there ever was any duck at all. codd had not thought of that till some junior suggested it, and then he was asked by the marquis of salisbury, our chairman, whether there was any particular line of defence he wished to suggest. "no," says codd, "not in particular; my client wished to make a clean breast of it, and put them all before the jury; and i should be much obliged if those gentlemen will adopt any one of them."[a] the jury acquitted the prisoner, not because they chose any particular defence, but because they did not know which to choose, and so gave the prisoner the benefit of the doubt. the client was happy, and codd famous. [footnote a: sixty years after this event, in the reply in the great tichborne case, mr. hawkins, q.c., quoted this very defence as an illustration of the absurdity of the suggestion that one of several _ospreys_ picked up sir roger tichborne--as will hereafter appear.] chapter xii. graham, the polite judge. just before my time the punishment of death was inflicted for almost every offence of stealing which would now be thought sufficiently dealt with by a sentence of a week's imprisonment. the struggle to turn king's evidence was great, and it was almost a competitive examination to ascertain who knew most about the crime; and he, being generally the worst of the gang, was accepted accordingly. i remember when i was a child three men, named respectively marshall, cartwright, and ingram, were charged with having committed a burglary in the house of a gentleman named pym, who lived in a village in hertfordshire, marshall being at that time, and cartwright having previously been, butler in the gentleman's service. ingram had been a footman in london. the burglary was not in itself of an aggravated character. plate only was stolen, and that had been concealed under the gravel bed of a little rivulet which ran through the grounds. no violence or threat of violence had been offered to any inmate of the house, yet the case was looked upon as serious because of the position of trust which had been held by the two butlers. ingram was admitted as king's evidence. the butlers were convicted, sentenced to death, and hanged, whilst ingram was, according to universal practice, set at liberty. before the expiration of a year, however, he was convicted of having stolen a horse, and as horse-stealing was a capital offence at that time, he suffered the penalty of death at hereford. it was a curious coincidence that only a year or two afterwards a man named probert, who had given king's evidence upon which the notorious thurtell and hunt were convicted of the brutal murder of weare and executed, was also released, and within a year convicted of horse-stealing and hanged. an old calendar for the assize at lincoln, which i give as an appendix, reminds me of the condition of the law and of its victims at that time. at every assize it was like a tiger let loose upon the district. if a man escaped the gallows, he was lucky, while the criminals were by no means the hardened ruffians who had been trained in the school of crime; they were mostly composed of the most ignorant rural labourers--if, indeed, in those days there were any degrees of ignorance, when to be able to read a few words by spelling them was considered a prodigious feat. jurors often endeavoured to mitigate the terrors of the law by finding that the stolen property, however valuable it might be, was of less value than five shillings. may the recording angel "drop a tear over this record of perjury and blot it out for ever." it was in those days that mr. justice graham was called upon to administer the law, and on one occasion particularly he vindicated his character for courtesy to all who appeared before him. he was a man unconscious of humour and yet humorous, and was not aware of the extreme civility which he exhibited to everybody and upon all occasions, especially to the prisoner. people went away with a sense of gratitude for his kindness, and when he sentenced a batch of prisoners to death he did it in a manner that might make any one suppose, if he did not know the facts, that they had been awarded prizes for good conduct. he was firm, nevertheless--a great thing in judges, if not accompanied with weakness of mind. i may add that there was a singular precision in his mode of expression as well as in his ideas. at a country assize, where he was presiding in the crown court, a man was indicted for murder. he pleaded "not guilty." the evidence contained in the depositions was terribly clear, and, of course, the judge, who had perused them, was aware of it. the case having been called on for trial, counsel for the prosecution applied for a postponement on the ground of the absence of a most material witness for the crown. i should mention that in those days counsel were not allowed to speak for the prisoner, but the judge was always in theory supposed to watch the case on his behalf. in the absence of a _material_ witness the prisoner would be acquitted. the learned mr. justice graham asked the accused if he had any objection to the case being postponed until the next assizes, on the ground, as the prosecution had alleged, that their most material witness could not be produced. his lordship put the case as somewhat of a misfortune for the prisoner, and made it appear that it would be postponed, if he desired it, as a favour to _him_. notwithstanding the judge's courteous manner of putting it, the prisoner most strenuously objected to any postponement. it was not for him to oblige the crown at the expense of a broken neck, and he desired above all things to be tried in accordance with law. he stood there on his "jail delivery." graham was firm, but polite, and determined to grant the postponement asked for. in this he was doubtless right, for the interests of justice demanded it. but to soften down the prisoner's disappointment and excuse the necessity of his further imprisonment, his lordship addressed him in the following terms, and in quite a sympathetic manner:-- "prisoner, i am extremely sorry to have to detain you in prison, but _common humanity_ requires that i should not let you be tried in the absence of an important witness for the prosecution, although at the same time i can quite appreciate your desire to have your case speedily disposed of; one does not like a thing of this sort hanging over one's head. but now, for the sake of argument, prisoner, suppose i were to try you to-day in the absence of that material witness, and yet, contrary to your expectations, they were to find you guilty. what then? why, in the absence of that material witness, i should have to sentence you to be hanged on monday next. that would be a painful ordeal for both of us. "but now let us take the other alternative, and let us suppose that if your trial had been put off, and the material witness, when called, could prove something in your favour--this sometimes happens--and that that something induced the jury to acquit you, what a sad thing that would be! it would not signify to you, because you would have been hanged, and would be dead!" here his lordship paused for a considerable time, unable to suppress his emotion, but, having recovered himself, continued,-- "but you must consider what my feelings would be when i thought i had hanged an innocent man!" at the next assizes the man was brought up, the material witness appeared; the prisoner was found guilty, and hanged. the humane judge's feelings were therefore spared. at the old bailey he was presiding during a sessions which was rather light for the times, there being less than a score left for execution under sentence of death. there were, in fact, only sixteen, most of them for petty thefts. his lordship, instead of reading the whole of the sixteen names, omitted one, and read out only fifteen. he then politely, and with exquisite precision and solemnity, exhorted them severally to prepare for the awful doom that awaited them the following monday, and pronounced on each the sentence of death. they left the dock. after they were gone the jailer explained to his lordship that there had been _sixteen_ prisoners capitally convicted, but that his lordship had omitted the name of one of them, and he would like to know what was to be done with him. "what is the prisoner's name?" asked graham. "john robins, my lord." "oh, bring john robins back--by all means let john robins step forward. i am obliged to you." the culprit was once more placed at the bar, and graham, addressing him in his singularly courteous manner, said apologetically,-- "john robins, i find i have accidentally omitted your name in my list of prisoners doomed to execution. it was quite accidental, i assure you, and i ask your pardon for my mistake. i am very sorry, and can only add that you will be hanged with the rest." chapter xiii. glorious old days--the hon. bob grimston, and many others--chicken-hazard. the old glories of the circuit days vanished with stage-coaches and post-chaises. if you climbed on to the former for the sake of economy because you could not afford to travel in the latter, you would be fined at the circuit mess, whose notions of propriety and economy were always at variance. those who obtained no business found it particularly hateful to keep up the foolish appearance of having it by means of a post-chaise. you might not ride in a public vehicle, or dine at a public table, or put up at an inn for fear of falling in with attorneys and obtaining briefs from them surreptitiously. the home circuit was very strict in these respects, but it was the cheapest circuit to travel in the kingdom, so that its members were numerous and, i need not say, various in mind, manner, and position. but it was a circuit of brilliant men in my young days. many of them rose to eminence both in law and in parliament. it was a time, indeed, when, if judges made law, law made judges. i should like to say a word or two about those times and the necessary studies to be undergone by those who aspired to eminence. in the days of my earliest acquaintance with the law, an ancient order of men, now almost, if not quite, extinct, called special pleaders, existed, who, after having kept the usual number of terms--that is to say, eaten the prescribed number of dinners in the inn of court to which they belonged--became qualified, on payment of a fee of £ , to take out a crown licence to plead under the bar. this enabled them to do all things which a barrister could do that did not require to be transacted in court. they drew pleadings, advised and took pupils. some of them practised in this way all their lives and were never called. others grew tired of the drudgery, and were called to the bar, where they remained _junior_ barristers as long as they lived, old age having no effect upon their status. some were promoted to the ancient order of serjeants-at-law, or were appointed her majesty's counsel, while some of the serjeants received from the crown patents of precedence with priority over all queen's counsel appointed after them, and with the privilege of wearing a silk gown and a queen's counsel wig. there was, however, this difference between a queen's counsel and the holder of a patent of precedence: that the former, having been appointed one of her majesty's counsel, could not thenceforth appear without special licence under the sign-manual of the queen to defend a prisoner upon a criminal charge. the serjeant-at-law is as rare now as a bustard. i mention these old-fashioned times and studies, not because of their interest at the present day, but because they produced such men as littledale, bayley, parke (afterwards lord wensleydale), alderson, tindal, patteson, wightman, crompton, vaughan williams, james, willes, and, later, blackburn. the contemplation of these legal giants, amongst whom my career commenced, somewhat checked the buoyant impulse which had urged me onward at quarter sessions, but at the same time imparted a little modest desire to imitate such incomparable models. those of them who were selected from the junior bar were good examples of men whose vast knowledge of law was acquired in the way i have indicated, and who were chosen on their merits alone. but even these successful examples, however encouraging to the student, were, nevertheless, not ill-calculated to make a young barrister whose income was small, and sometimes, as in my case, by no means _assured_ to him, sicken at the thought that, study as he liked, years might pass, and probably would, before a remunerative practice came to cheer him. perhaps it would never come at all, and he would become, like so many hundreds of others of his day and ours, a hopeless failure. all were competitors for the briefs and even the smiles of solicitors; for without their favour none could succeed, although he might unite in himself all the qualities of lawyer and advocate. the prospect was not exhilarating for any one who had to perform the drudgery of the first few years of a junior's life; nevertheless, i was not cast down by the mere apprehension, or rather the mere possibility of failure, for when i looked round on my competitors i was encouraged by the thought that dear old woollet knew more about a rate appeal than littledale himself, while old peter ryland, with his inimitable saxon, was quite as good at the irremovability of a pauper as codd was in accounting for the illegal removal of a duck, and both in their several branches of knowledge more learned than alderson or bayley. but here i was, launched on that wide sea in which i was "to sink or swim," and, as i preferred the latter, i struck out with a resolute breast-stroke, and, as i have said, never failed to keep my head above water. it was some satisfaction to know that, if the judges were so learned, there was yet more learning to come; much yet to come down from, the old table-land of the common law, and much more from the inexhaustible fountain of parliament. the quarter sessions court was the arena of my first eight years of professional life. i watched and waited with unwearied attention, never without hope, but often on the very verge of despair, of ever making any progress which would justify my choosing it as a profession. my greatest delight, perhaps, was the obtaining an acquittal of some one whose guilt nobody could doubt. all the struggle of those times was the fight for the "one three six," and the hardest effort of my life was the most valuable, because it gave me the key which opened the door to many depositories of unexplored wealth. there were many men who outlived their life, and others who never lived their lives at all; many men who did nothing, and many more who would almost have given their lives to do something. there was, however, one man of those days whom i cannot here pass over, as he remained my companion and friend to his life's end, and will be remembered by me with affection and reverence to the end of my own. it was old bob grimston, whom i first met at the benefit of "the spider," one of the famous prize-fighters of the time. the hon. bob grimston was known in the sporting world as one of its most enthusiastic supporters, and acknowledged as one of the best men in saddle or at the wicket. but bob was not only a sportsman--he was a gentleman of the finest feeling you could meet, and the keenest sense of honour. having thus spoken of some of the eminent men of my early days, i would like to mention a little incident that occurred before i had fairly settled down to practise, or formed any serious intention as to the course i should pursue--that is to say, whether i should remain a sessions man like woollet, or become a master of saxon like old peter ryland, a sportsman like bob grimston, or a cosmopolitan like rodwell, so as to comprehend all that came in my way. i chose the latter, for the simple reason that in principle i loved what in these days would be called "the open door," and received all comers, even sometimes entertaining solicitors unawares. accordingly i laid myself open to the attention of kind friends and people whose manner of life was founded on the christian principle of being "given to hospitality." but before i come to the particular incident i wish to describe, i must briefly mention a remarkable case that was tried in the queen's bench, and which necessarily throws me back a year or two in my narrative. it was a case known as "boyle and lawson," and the incident it reveals will give an idea of the state of society of that day. i am not sure whether it differs in many respects from that of the present, except in so far as its _honour_ is concerned, for what was looked upon then as a flagrant outrage on public morality is now regarded as an error of judgment, or a mistake occasioned by some fortuitous combination of unconsidered circumstances. such is the value in literature and argument of long words without meaning. however, the action was brought against the proprietors of the _times_ newspaper for libel. the libel consisted in the statement that the respectable plaintiff--a lady--had conspired with persons unknown to obtain false letters of credit for large sums of money. the hospitable friends i refer to lived in excellent style in norwich. how they had attained their social distinction i am unable to say, but they were, in fact, in the "very best set," which in norwich was by no means the fastest. i was travelling at this time with charles willshire and his brother thomas, who was a mere youth. there was also an undergraduate of cambridge of the name of crook with us, and another who had joined our party for a few days' ramble. we were enjoying ourselves in the old city of norwich as only youth can, when we received an invitation to pass an evening in a very fashionable circle. how the invitation came i could not tell, but we made no inquiry and accepted it. arrived at the house, which was situated in the most aristocratic neighbourhood that norwich could boast, we found ourselves in the most agreeable society we could wish to meet. this was a group of exalted and fashionable personages arrayed in costumes of the superb prince regent style. nothing could exceed this party in elegance of costume or manners. you could tell at once they were, as it was then expressed, "of the quality." their cordiality was equalled only by their courtesy, and had we been princes of the blood we could not have received a more polite welcome. there was an elegance, too, about the house, and a refinement which coincided with the culture of the hosts and guests. altogether it was one of the most agreeable parties i had ever seen. there were several gentlemen, all prince regents, and one sweet lady, charming in every way, from the well-arranged blonde tresses to the neatest little shoe that ever adorned a cinderella foot. she was beautiful in person as she was charming in manner. you saw at once that she moved in the best norwich society, and was the idol of it. crook was perfectly amazed at so much grace and splendour, but then he was much younger than any of us. i don't think any one was so much smitten as crook. we had seen more of the world than he had--that is to say, more of the witness-box--and if you don't see the world there, on its oath, you can see it nowhere in the same unveiled deformity. we enjoyed ourselves very much. there was good music and a little sweet singing, the lady being in that art, as in every other, well trained and accomplished. if i was not altogether ravished with the performance, crook was. you could see that by the tender look of his eyes. after the music, cards were introduced, and they commenced playing _vingt-et-un_, crook being the special favourite with everybody, especially with the ladies. i believe much was due to the expression of his eyes. as i had given up cards, i did not join in the game, but became more and more interested in it as an onlooker. i was a little surprised, however, to find that in a very short while, comparatively, our friend crook had lost £ or £ ; and as this was the greater part of his allowance for travelling expenses, it placed him in a rather awkward position. some men travel faster when they have no money; this was not the case with poor crook, who travelled only by means of it. alas, i thought, _twenty-one_ and _vingt-et-un_! it was a serious matter, and the worse because crook was not a good loser: he lost his head and his temper as well as his money; and i have ever observed through life that the man who loses his temper loses himself and his friends. he was disgusted with his bad luck, but nurtured a desperate hope--the forlorn hope that deceives all gamblers--that he should retrieve his losses on some future occasion, which he eagerly looked for and, one might say, demanded. the occasion was not far off; it was, in fact, nearer than crook anticipated. his pleasant manner and agreeable society at _vingt-et-un_ procured us another invitation for the following night but one, and of course we accepted it. it was a great change to me from the scenery of the elm court chimney-pots. whatever might be crook's happily sanguine disposition and hope of retrieving his luck, there was one thing which the calculator of chances does not take into consideration in games of this kind. we, visiting such cultured and fashionable people, would never for a moment think so meanly of our friends; i mean the possibility of their cheating, a word never mentioned in well-bred society. a suspicion of such conduct, even, would be tantamount to treason, and a violation of the rules that regulate the conduct of ladies and gentlemen. it was far from all our thoughts, and the devil alone could entertain so malevolent an idea. be that as it may, as a matter of philosophy, the onlooker sees most of the game, and as i was an onlooker this is what i saw:-- the elegant lady _exchanged glances with one of the players while she was looking over crook's hand_! crook was losing as fast as he could, and no wonder. i was now in an awkward position. to have denounced our hosts because i interpreted a lady's glances in a manner that made her worse than a common thief might have produced unknown trouble. but i kept my eye on the beautiful blonde, nevertheless, and became more and more confirmed in my suspicions without any better opportunity of declaring them. the charming well-bred lady thus communicating her knowledge of crook's cards, i need not say he was soon reduced to a state of insolvency; and as the party was too exclusive and fashionable to extend their hospitality to those who had not the means of paying, it soon broke up, and we returned to our rooms, i somewhat wiser and crook a great deal poorer. such was the adventure which came to my mind when i saw in the queen's bench at westminster the trial of "boyle and lawson" against the _times_ for calumnious insinuations against the character of a lady and others, suggesting that they obtained false letters of credit to enable them to cheat and defraud. _this_ was the select party which norwich society had lionized--the great unknown to whom we had been introduced, and where crook had been cheated out of his travelling-money! the lady was the fair plaintiff in this action, seeking for the rehabilitation of her character; and she succeeded in effecting that object so far as the outlay of one farthing would enable her to do so, for that was all the jury gave her, and it was exactly that amount too much. her character was worth more to her in crook's time. speaking of a man running society on his fees--that is, endeavouring to cope with the rich on the mere earnings of a barrister, however large they may be--i have met with several instances which would have preserved me from the same fate had i ever been cursed with such an inclination. the number of successful men at the bar who have been ruined by worshipping the idol which is called "society," and which is perhaps a more disastrous deity to worship than any other, is legion. this is one unhappy example, the only one i intend to give. while i was living in bond street, and working very hard, i had little time and no inclination to lounge about amongst the socially great; i had, indeed, no money to spend on great people. the entrance-fee into the portals of the smart society temple is heavy, especially for a working-man; and so found the bright particular star who had long held his place amidst the splendid social galaxy, and then disappeared into a deeper obscurity than that from which he had emerged, to be seen no more for ever. he was a queen's counsel, a brilliant advocate in a certain line of business, and a popular, agreeable, intellectual, and amusing companion. he obtained a seat in parliament, and a footing in society which made him one of its selected and principal lions. in every society paper, amongst its most fashionable intelligence, there was he; and society hardly seemed to be able to get along without him. one sunday afternoon i was reading in my little room when this agreeable member of the _élite_ called upon me. my astonishment was great, because at that time of my career not only did i not receive visitors, but _such_ a visitor was beyond all expectation, and i wondered, when his name was announced, what could have brought him, he so great and i comparatively nothing. it is true i had known him for some time, but i knew him so little that i thought of him as a most estimable great man whose career was leading him to the highest distinction in his profession. another extraordinary thing that struck me long after, but did not at the time, was that the business he came upon made no particular impression on my mind, any more than if it had been the most ordinary thing in the world. that to me is still inexplicable. my visitor did not let troubles sit upon him, if troubles he ever had, for he seemed to be in the highest spirits. society kept him ever in a state of effervescent hilarity, so that he never let anything trouble him. at this time he was making at the bar seven or eight thousand a year, and consequently, i thought, must be the happiest of men. his manner was agreeable, and his face wore a smile of complacency at variance with the nature of his errand, which he quickly took care to make known by informing me that he was in a devil of a mess, and did not know what he should do to get out of it. "oh," i said quite carelessly, "you'll manage." and little did i think i should be the means of fulfilling my own prophecy. "the fact is, my dear hawkins," said the wily intriguer, for such he was, "i'll tell you seriously how i stand. to-morrow morning i have bills becoming due amounting to £ , , and i want you to be good enough to lend me that sum to enable me to meet them." i was perfectly astounded! this greatness to have come down to £ , on the wrong side of the ledger. "i have no such amount," said i, "and never had anything like it at my bank." i must say i pitied him, and began to wonder in what way i _could_ help him. he was so really and good-naturedly in earnest, and seemed so extremely anxious, that at last i said, "well, i'll see what i can do," and asked him to meet me in court the following morning, when i would tell him whether i could help him or not. his gratitude was boundless; my kindness should never be forgotten--no, as long as he lived! and if he had been addressing a common jury he could not have used more flowers of speech or shed more abundant tears to water them with. i was the best friend he had ever had. and, as it seemed afterwards, very foolishly so, because he told me he had not one farthing of security to offer for the loan. a man who ought to have been worth from fifty to a hundred thousand pounds! however, i went to my bankers' and made arrangements to be provided with the amount. i met him at the place of appointment, and was quite surprised to see the change in his demeanour since the day before. he was now apparently in a state of deeper distress than ever, and thinking to soothe him, i said, "it's all right; you can have the money!" once more he overwhelmed me with the eloquence of a grateful heart, but said it was of no use--no use whatever; that instead of £ , he had other bills coming in, and unless they could all be met he might just as well let the others go. "how much do you _really_ want to quite clear you?" i asked, with a simplicity which astonishes me to this day. "well," he said, "nothing is of the least use under £ , ." i was a little staggered, but, pitying his distress of mind, went once more to my bankers' and made the further necessary arrangements. i borrowed the whole amount at five per cent., and placed it to the credit of this brilliant queen's counsel. the only terms i made with him on this new condition of things was that he should, out of his incoming fees, pay my clerk £ a quarter until the whole sum was liquidated. this he might easily have done, and this he arranged to do; but the next day he pledged the whole of his prospective income to a jew, incurred fresh liabilities, and left me without a shadow of a chance of ever seeing a penny of my money again. i need not say every farthing was lost, principal and interest. i say interest, because it cost me five per cent, till the amount was paid. his end was as romantic as his life, but it is best told in the words of my old friend charley colman, who never spares colour when it is necessary, and in that respect is an artist who resembles nature. thus he writes:-- "what a coward at heart was ----! he allowed himself to be sat upon and crushed without raising a hand or voice in his defence of himself. when he returned from america he accepted a seat in ---- office--in the office of the man who urged lord ---- to prosecute him. "after your gift to him--a noble gift of £ , --he called at my chambers, spoke in high terms of your generosity, and wished all the world to know it, so elated was he. i was to publish it far and wide. he went away. in half an hour he returned, and begged me to keep the affair secret. 'too late,' said i. 'several gentlemen have been here, and to them i mentioned the matter, and begged them to spread it far and wide.' his heart failed him when he thought he would be talked about. "he was a kind-hearted fellow at times--generous to a fault, always most abstemious; but he had a tongue, and one he did not try to control. he used to say stinging things of people, knowing them to be untrue. "what a life! what a terrible fate was his! turned out of parliament; made to resign his benchership; his gown taken from him by the benchers; driven to america by his creditors to get his living; not allowed to practise in the supreme court in america. at forty-five years of age his life had foundered. he returns to england--for what! simply to find his recklessness had blasted his life, and then--? "sometimes, in spite of _all_, i feel a moisture in my eye when i think of him. had he been true to himself what a brilliant life was open to him! what a practice he had! up to the last he told me that he turned £ , a year. he worked hard, very hard, and his gains went to ---- or to chicken-hazard! poor fellow!" chapter xiv. peter ryland--the rev. mr. faker and the welsh will. i was retained at hertford assizes, with peter ryland as my leader, to prosecute a man for perjury, which was alleged to have been committed in an action in which a cantankerous man, who had once filled the office of high sheriff for the county, was the prosecutor. wealthy and disagreeable, he was nevertheless a henpecked tyrant. mrs. brown, his wife, was a witness for the prosecution in the alleged perjury--which was unfortunate for her husband, because she had the greatest knowledge of the circumstances surrounding the case; while mr. brown had the best knowledge of the probable quality of his wife's evidence. when we were in consultation and considering the nature of this evidence, and arranging the best mode of presenting our case to the jury, brown interposed, and begged that mr. ryland should call mrs. brown as the _last_ witness, instead of first, which was the proper course. "because," said he, "_if anything goes wrong during the trial or anything is wanting, mrs. brown will be quite ready to mop it all up_." this in a prosecution for _perjury_ was one of the boldest propositions i had ever heard. i need not say that good mrs. brown was called, as she ought to have been, first. the lady's mop was not in requisition at that stage of the trial, and the jury decided against her. i was sometimes in the divorce court, and old jack holker was generally my opponent. he was called "long odds." in one particular case i won some _éclat_. it is not related on that account, however, but simply in consequence of its remarkable incidents. no case is interesting unless it is outside the ordinary stock-in-trade of the law courts, and i think this was. the details are not worth telling, and i therefore pass them by. cresswell was the president, and the future president, hannen, my junior. we won a great victory through the remarkable over-confidence and indiscretion of edwin james, q.c., who opposed us. james's client was the husband of the deceased. by her will the lady had left him the whole of her property, amounting to nearly £ , . the case we set up was that the wife had been improperly influenced by her husband in making it, and that her mind was coerced into doing what she did not intend to do, and so we sought to set aside the will on that ground. edwin james had proved a very strong case on behalf of the validity of the will. he had called the attesting witnesses, and they, respectable gentlemen as they undoubtedly were, had proved all that was necessary--namely, that the testator, notwithstanding that she was in a feeble condition and almost at the last stage, was perfectly calm and capable in mind and understanding--exactly, in fact, as a testator ought to be who wills her property to her husband if he retains her affection. the witnesses had been cross-examined by me, and nothing had been elicited that cast the least doubt upon their character or credibility. had the matter been left where it was, the £ , would have been secured. but james, whatever may have been his brilliance, was wanting in tact. he would not leave well alone, but resolved to call the rev. mr. faker, a distinguished dissenting minister. in fiction this gentleman would have appeared in the melodramatic guise of a spangled tunic, sugar-loaf hat, with party-coloured ribbons, purple or green breeches, and motley hose; but in the witness-box he was in clerical uniform, a long coat and white cravat with corresponding long face and hair, especially at the back of his head. a soberer style of a stage bandit was never seen. he was just the man for cross-examination, i saw at a glance--a fancy witness, and, i believe, a welshman. as he was a christian warrior, i had to find out the weak places in his armour. but little he knew of courts of law and the penetrating art of cross-examination, which could make a hole in the triple-plated coat of fraud, hypocrisy, and cunning. i was in no such panoply. i fought only with my little pebblestone and sling, but took good aim, and then the missile flew with well-directed speed. i had to throw at a venture at first, because, happily, there were no instructions how to cross-examine. not that i should have followed them if there had been; but i might have got a _fact_ or two from them. it is well known that artifice is the resource of cunning, whether it acts on the principle of concealing truth or boldly asserting falsehood. here the reverend strategist did both: he knew how a little truth could deceive. you must remember that at this point of the case, when the rev. faker was called, there was nothing to cross-examine about. i knew nothing of the parties, the witnesses, the solicitors, or any one except my learned friends. it would not have been discreditable to my advocacy if i had submitted to a verdict. i will, therefore, give the points of the questions which elicited the truth from the christian warrior; and probably the non-legal reader of these memoirs may be interested in seeing what may sometimes be done by a few judicious questions. "mr. faker," i said. "sir," says faker. "you have told us you acted as the adviser of the testatrix." "yes, sir." "spiritual adviser, of course?" a spiritual bow. "you advised the deceased lady, probably, as to her duties as a dying woman?" "certainly." "duty to her husband--was that one?" a slight hesitation in mr. faker revealed the vast amount of fraud of which he was capable. it was the smallest peephole, but i saw a good way. till then there was nothing to cross-examine about, but after that hesitation there was £ , worth! he had betrayed himself. at last faker said,-- "yes, mr. hawkins; yes, sir--her duty to her husband." "in the way of _providing_ for him?" was my next question. "oh yes; quite so." "you were careful, of course, as you told your learned counsel, to avoid any undue influence?" "certainly." "the will was not completed, i think, when you first saw the dying woman--on the day, i mean, of her death?" "no, not at that time." "was it kept in a little bag by the pillow of the testatrix? did she retain the keys of the bag herself?" "that is quite right." "had it been executed at this time? i think you said not?" "not at this time; it had to be revised." "how did you obtain possession of the keys?" "i obtained them." "yes, i know; but without her knowledge?" it was awkward for faker, but he had to confess that he was not sure. then he frankly admitted that the will was taken out of the bag--in the lady's presence, of course, but whether she was quite dead or almost alive was uncertain; and then he and the husband spiritually conferred as to what the real intention of the dying woman in the circumstances was _likely to be_, and having ascertained that, they made _another will_, which they called "settling the former one" by carrying out the lady's intentions, the lady being now dead to all intentions whatsoever. this was the will which was offered for probate! cresswell thought it was a curious state of affairs, and listened with much interest to the further cross-examination. "had you ever seen any other will?" i inquired. it was quite an accidental question, as one would put in a desultory sort of conversation with a friend. "er--yes--i have," said faker. "what was that?" "well, it was a will, to tell you the truth, mr. hawkins, executed in my favour for £ , ." "where is it?" "i have not the original," said the minister, "but i have a copy of it." "copy! but where is the original?" "original?" repeats faker. "yes, the original; there must have been an original if you have a copy." "oh," said the rev. faker, "i remember, the original was destroyed after the testatrix's death." "how?" "burnt!" even the very grave hannen, my ever-respected friend and junior, smiled; cresswell, never prone to smile at villainy, smiled also. "the original burnt, and only a copy produced! what do you mean, sir?" the situation was dramatic. "is it not strange," i asked, "even in _your_ view of things, that the original will should be burnt and the copy preserved?" "yes," answered the reverend gentleman; "perhaps it would have been better--" "to have burnt the copy and given us the original, and more especially after the lady was dead. but, let me ask you, _why_ did you destroy the original will?" i pressed him again and again, but he could not answer. the reason was plain. his ingenuity was exhausted, and so i gave him the finishing stroke with this question,-- "will you swear, sir, that an original will ever existed?" the answer was, "no." i knew it _must_ be the answer, because there could be no other that would not betray him. "what is your explanation?" asked cresswell. "my explanation, my lord, is that the testatrix had often expressed to me her intention to leave me £ , , and i wrote the codicil which was destroyed to carry out her wishes." cresswell had warned james early in the case as to the futility of calling witnesses after the two who alone were necessary, but to no purpose; he hurried his client to destruction, and i have never been able to understand his conduct. the most that can be said for him is that he did not suspect any danger, and took no trouble to avoid incurring it. it is curious enough that on the morning of the trial we had tried to compromise the matter by offering £ , . the refusal of the offer shows how little they thought that any cross-examination could injure their cause. hannen said he could not have believed a cross-examination could be conducted in that manner without any knowledge of the facts, and paid me the compliment of saying it was worth at the least £ , . chapter xv. tattersall's--baron martin, harry hill, and the old fox in the yard. tattersall's in my time was one of the pleasantest sunday afternoon lounges in london. there was a spirit of freedom and social equality pervading the place which only belongs to assemblies where sport is the principal object and pleasure of all. there was also the absence of irksome workaday drudgery; i think that was, after all, the main cause of its being so delightful a meeting-place to me. there was, however, another attraction, and that was dear old baron martin, one of the most pleasant companions you could meet, no matter whether in the court of exchequer or the "old ring." a keen sportsman he was, and a shrewd, common-sense lawyer--so great a lover of the turf that it is told of him, and i know it to be true, that once in court a man was pointed out to him bowing with great reverence, and repeating it over and over again until he caught the baron's attention. the judge, with one pair of spectacles on his forehead and another on his eyes, immediately cried aloud to his marshal, "custance, the jockey, as i'm alive!" and then the baron bowed most politely to the man in the crowd, the most famous jockey of his day. speaking of tattersall's reminds me of many things, amongst them of the way in which, happily, i came to the resolution never to bet on a horse-race. it was here i learnt the lesson, at a place where generally people learn the opposite, and never forgot it. no sermon would ever have taught me so much as i learnt there. like my oldest and one of my dearest friends on the turf, lord falmouth, i never made a bet after the time i speak of. no one who lives in the world needs any description of the tattersall's of to-day. but the tattersall's of my earlier days was not exactly the same thing, although the differences would not be recognizable to persons who have not over-keen recollections. the institution has perhaps known more great men than parliament itself--not so many bishops, perhaps, as the church, but more statesmen than could get into the house of lords; and all the biographies that have ever been written could not furnish more illustrations of the ups and downs of life, especially the downs, nor of more illustrious men. the names of all the great and mediocre people who visited the famous rendezvous would fill a respectable court guide, and the money transactions that have taken place would pay off the national debt. all this is a pleasant outcome of the national character. do not suppose that judges, other than baron martin, never looked in, for they did, and so did learned and illustrious queen's counsel and serjeants-at-law, authors, editors, actors, statesmen, and, to sum it up in brief, all the real men of the day of all professions and degrees of social position. at first my visits were infrequent; afterwards i went more often, and then became a regular attendant. i loved the "old ring," and yet could never explain why. i think it was the variety of human character that charmed me. i was doing very little at the bar, and was, no doubt, desirous to make as many acquaintances as possible, and to see as much of the world as i could. it is a long way back in my career, but i go over the course with no regrets and with every feeling of delight. everything seems to have been enjoyable in those far-off days, although i was in a constant state of uncertainty with regard to my career. there were three principal places of pleasure at that time: one was tattersall's, one newmarket, and the courts of law a third. there used to be, in the centre of the yard or court at tattersall's, a significant representation of an old fox, and i often wondered whether it was set up as a warning, or merely by way of ornamentation, or as the symbol of sport. it might have been to tell you to be wary and on the alert. but whatever the original design of this statue to reynard, the old fox read me a solemn lesson, and seemed to be always saying, "take care, harry; be on your guard. there are many prowlers everywhere." but there was another monitor in constant attendance, who was deservedly respected by all who had the pleasure of his acquaintance--that is to say, by all who visited tattersall's more than once. he was not in the least emblematic like the old fox, but a man of sound sense, with no poetry, of an extremely good nature, and full of anecdote. you might follow his advice, and it would be well with you; or you might follow your opinion in opposition to his and take your chance. his name was hill--harry hill they familiarly called him--and although you might have many a grander acquaintance, you could never meet a truer friend. he was an old and much-respected friend of the baron, and that says a great deal for him; for if anybody in the world could understand a _man_, it was baron martin. whether it was the prime minister or the unhappy thief in the dock, he knew all classes and all degrees of criminality. he was not poetical with regard to landscapes, for if one were pointed out to him by some proprietor of a lordly estate, he would say, "yes, a vera fine place indeed; and i would have the winning-post _there_!" the old fox and harry hill! the two characters at tattersall's in those days can never be forgotten, by those who knew them. it may seem strange in these more enlightened days that at that time i was under the impression that no one could make a bet unless he had the means of paying if he lost. this statement will provoke a smile, but it is true. the consequence was that i was debarred from speculating where i thought i had a most excellent chance of winning, having been brought up to believe that the world was almost destitute of fraud--a strange and almost unaccountable idea which only time and experience proved to be erroneous. judge of the vast unexplored field of discovery that lay before me! harry hill was better informed. he had lived longer, and had been brought in contact with the cleverest men of the age. he knew at a glance the adventurous fool who staked his last chance when the odds were a hundred to one, and also the man of honour who staked his life on his honesty--and sometimes _lost_! there were "blacklegs" in those days who looked out for such honest gentlemen, and _won_--scoundrels who degrade sport, and trade successfully on the reputations of men of honour. you cannot cope with these; honesty cannot compete with fraud either in sport or trade. it was a very brief sunday sermon which harry preached to me this afternoon, but it was an effective one, and out of the abundance of his good nature he gave me these well-remembered words of friendly warning,-- "mr. hawkins, i see you come here pretty regularly on sunday afternoons; but i advise you not to speculate amongst us, for if you do we shall beat you. we know our business better than you do, and you'll get nothing out of us any more than we should get out of you if we were to dabble in your law, for you know _that_ business better than we do." this disinterested advice i took to heart, and treated it as a warning. i thanked mr. hill, promised to take advantage of his kindness, and kept my word during the whole time that tattersall's remained in the old locality, which it did for a considerable period. the establishment at this time was at hyde park corner, and had been rented from lord grosvenor since . it was used for the purpose of selling thoroughbreds and other horses of a first-rate order, until the expiration of the lease, which was, i think, in . it was then removed to knightsbridge, where i still continued my visits. the new premises, or, as it might be called, the new institution, was inaugurated with a grand dinner, chiefly attended by members of the sporting world, including admiral rous, george payne, and many other well-known and popular patrons of our national sport. there were also a great many who were known as "swells," people who took a lively interest in racing affairs, and others who belonged to the literary and artistic world, and enjoyed the national sports as well. it was a large assembly, and if any persons can enjoy a good dinner and lively conversation, it is those who take an interest in sport. mixed as the company might be, it was uniform in its object, which was to be happy as well as jolly. that i should have been asked to be present on this historic occasion was extremely gratifying, but i could find no reason for the honour conferred upon me, except that it 'might be because i had always endeavoured to make myself agreeable--a faculty, if it be a faculty, most invaluable in all the relations and circumstances of life. i was flattered by the compliment, because in reality i was the guest of all the really great men of the day. but a still more striking honour was in store. i was called upon to respond for somebody or something; i don't remember what it was to this day, nor had i the faintest notion what i ought to say. i was perfectly bewildered, and the first utterance caused a roar of laughter. i did not at that time know the reason. it is of no consequence whether you know what you are talking about in an after-dinner speech or not, for say what you may, hardly anybody listens, and if they do few will understand the drift of your observations. you get a great deal of applause when you stand up, and a great deal more when you sit down. i seemed to catch my audience quite accidentally by using a word tabooed at that time in sporting circles, because it represented the blacklegs of the racecourse, and was used as a nickname for rascaldom. "gentlemen," i said, "i have been unexpectedly called upon my _legs_--" then i stammered an apology for using the word in that company, and the laughter was unbounded. next morning all the sporting papers reported it as an excellent joke, although the last person who saw the joke was myself. after dinner we adjourned to the new premises, which included a betting-room, since christened "place," by interpretation of a particular statute by myself and others. oh the castigation i received from the jockey club on that account! whether the monitory fox was anywhere within the precincts i do not know, but i missed him at that time, and attributed to his absence the lapse from virtue which undermined my previous resolution, and in a moment undid the merits of exemplary years. however, it brought me to myself, and was, after all, a "blessing in disguise"--and pleasant to think of. we were in the betting-room, and there was harry hill, my genial old friend, who had advised me to take care, and never to bet, "because we know our business better than you do." alas! amidst the hubbub and excitement, to say nothing of the joviality of everybody and the excellence of the champagne, i said in a brave tone,-- "come now, mr. hill, i _must_ have a bet, on the opening of the new tattersalls. i will give you evens for a fiver on ---- for the derby!" alas! my friend, who _ought_ to have known better, forgot the good advice he had given me only a few years before, and i, heedless of consequences in my hilarity, repeated the offer of evens on the _favourite_. "done!" said two or three, and amongst them hill. i might have repeated the offer and accepted the bet over and over again, so popular was it. "done, done, done!" everywhere. but hill was the man for my money, and he had it. before morning the _favourite was scratched_! it was the race which hermit won! poor hastings lost heavily and died soon after. i had backed the wrong horse, and have never ceased to wonder how i could have been so foolish. "let me advise you not to speculate amongst us," were hill's words, "for if you do we shall beat you;" and it cost me five pounds to learn that. a lawyer's opinion may be worth what is paid for it in a case stated; but of the soundness of of a horse's wind, or the thousand and one ailments to which that animal's flesh and blood are heir, i knew nothing--not so much as the little boy who runs and fetches in the stable, and who could give the ablest lawyer in great britain or ireland odds on any particular favourite's "public form" and beat him. put not your trust in tipsters; they no more knew that hermit had a chance for the derby than they could foretell the snowstorm that was coming to enable him to win it. this was the last bet i ever made; and i owe my abandonment of the practice to harry hill, who gave me excellent advice and enforced it by example. chapter xvi. arising out of the "orsini affair." the "orsini affair" was one of high treason and murder. it was the attempt on the part of a band of conspirators to murder napoleon iii. in order to accomplish this _political_ object, they exploded a bomb as nearly under his majesty's carriage as they could manage, but instead of murdering the emperor they killed a policeman. orsini was captured, tried, and executed in the good old french fashion. his political career ended with the guillotine--a sharp remedy, but effective, so far as he was concerned. one dr. simon bernard was more fortunate than his principal, for he was in england, the refuge of discontented foreign murderers, who try to do good by stealth, and sometimes feel very uncomfortable when they find that it turns out to be assassination. bernard was a brother conspirator in this famous orsini business, and being apprehended in england, was taken to be tried before lord chief justice campbell, edwin james and myself being retained for the defence. there was no defence on the facts, and no case on the law. he was indicted for conspiracy with orsini to murder the emperor in paris. i had prepared a very elaborate and exhaustive argument in favour of the prisoner, on the law, and had little doubt i could secure his acquittal; but the facts were terribly strong, and we knew well enough if the jury convicted, campbell would hang the prisoner, for he never tolerated murder. with this view of the case, we summoned dr. bernard to a consultation, which was held in one of the most ghastly rooms of newgate. no more miserable place could be found outside the jail, and it could only be surpassed in horror by one within. it might have been, and probably was, an anteroom to hell, but of that i say nothing. i leave my description, for i can do no more justice to it. the only cheerful thing about it was dr. bernard himself. he was totally unconcerned with the danger of his situation, and regarded himself as a hero of the first order. murder, hanging, guillotine--all seemed to be the everyday chances of life, and to him there was nothing sweeter or more desirable, if you might judge by his demeanour. i thought it well to mention the fact that, if the jury found him guilty, lord campbell would certainly sentence him to death. he exhibited no emotion whatever, but shrugging his shoulders after the manner of a frenchman who differed from you in opinion, said,-- "well, if i am hanged, i must be hanged, that is all." with a man like him it was impossible to argue or ask for explanations. he seemed to be possessed with the one idea that to remedy all the grievances of the state it was merely necessary to blow up the emperor with his horses and carriage, and coolly informed us, without the least reserve, that the bombs manufactured with this political object had been sent over to paris from england concealed in firkins of butter. i can find no words in which to express my feelings. so ended our first consultation. the "merits" of the case were gone; there was no defence. but whatever might be our opinion on dr. bernard's state of mind, we could not abandon him to his fate. we were retained to defend him, and defend him we must, even in spite of himself, if we could do so consistently with our professional honour and duty. accordingly we had another consultation, and as i have said there was one other room in england more ghastly than that where we held our first interview, so now i reluctantly introduce you to it. if a man about to be tried for his life could look on this apartment and its horrors unmoved, he would certainly be a fit subject for the attentions of the hangman, and deserving of no human sympathy. it was enough to shake the nerves of the hangman himself. we were in an apartment on the north-east side of the quadrangular building, where the sunshine never entered. even daylight never came, but only a feeble, sickening twilight, precursor of the grave itself. it was not merely the gloom that intensified the horrors of the situation, or the ghastly traditions of the place, or the impending fate of our callous client; but there was a tier of shelves occupying the side of the apartment, on which were placed in dismal prominence the plaster-of-paris busts of all the malefactors who had been hanged in newgate for some hundred years. no man can look attractive after having been hanged, and the indentation of the hangman's rope on every one of their necks, with the mark of the knot under the ear, gave such an impression of all that can be conceived of devilish horror as would baffle the conceptions of the most morbid genius. whether these things were preserved for phrenological purposes or for the gratification of the most sanguinary taste, i never knew, but they impressed me with a disgust of the brutal tendency of the age. dr. bernard, however, seemed to take a different view. probably he was scientific. he went up to them, and examined, as it seemed, every one of these ghastly memorials with an interest which could only be scientific. it did not seem to have occurred to his brain that _his_ head would probably be the next to adorn that repository of criminal effigies. he was in charge of a warder, and looked round with the utmost composure, as though examining the caesars in the british museum, and was as interested as any fanatical fool of a phrenologist. he shrugged his shoulders, raised his eyebrows, and repeated his old formula, "well, if i am to be hanged, i must be hanged." _he was acquitted_. my elaborate arguments on the law were not necessary, for the jury actually refused to believe the evidence as to the facts! such are the chances of trial by jury! as a relief to this gloomy chapter i must tell you of a distinguished judge who had to sentence a dishonest butler for robbing his master of some silver spoons. he considered it his duty to say a few words to the prisoner in passing sentence, in order to show the enormity of the crime of a servant in his position robbing his master, and by way of warning to others who might be tempted to follow his example. "you, prisoner," said his lordship, "have been found guilty, by a jury of your country, of stealing these articles from your employer--mark that--_your employer_! now, it aggravates your offence that he is your employer, because he employs you to look after his property. you _did_ look after it, but not in the way that a butler should--mark that!" the judge here hemmed and coughed, as if somewhat exhausted with his exemplary speech; and then resumed his address, which was ethical and judicial: "you, prisoner, have _no_ excuse for your conduct. you had a most excellent situation, and a kind master to whom you owed a debt of the deepest gratitude and your allegiance as a faithful servant, instead of which you paid him by _feathering your nest with his silver spoons_; therefore you must be transported for the term of seven years!" the metaphor was equal to that employed by an attorney-general, who at a certain time in the history of the home rule agitation, addressing his constituents, told them that _mr. gladstone had sent up a balloon to see which way the cat jumped with regard to ireland_! he was soon appointed a judge of the high court. judges, however, are not always masters of their feelings, any more than they are of their language; they are sometimes carried away by prejudice, or even controlled by sentiment. i knew one, a very worthy and amiable man, who, having to sentence a prisoner to death, was so overcome by the terrible nature of the crime that he informed the unhappy convict that he could expect _no mercy either in this world or the next_! littledale, again, was an uncommonly kind and virtuous man, a good husband and a learned judge; but he was afflicted with a wife whom he could not control. she, on the contrary, controlled him, and left him no peace unless she had her will. at times, however, she overdid her business. littledale had a butler who had been in the family many years, and with whom he would not have parted on any account. he would sooner have parted with her ladyship. one morning, however, this excellent butler came to sir joseph and said, with tears in his eyes,-- "i beg your pardon, my lord--" "what's the matter, james?" "i'm very sorry, my lord," said the butler, "but i wish to leave." "wish to leave, james? why, what do you wish to leave for? haven't you got a good situation?" "capital sitiwation, sir joseph, and you have always been a good kind master to me, sir joseph; but, o sir joseph, sir joseph!" "what then, james, what then? why do you wish to leave? not going to get married, eh--not surely going to get married? o james, don't do it!" "heaven forbid, sir joseph!" "eh, eh? well, then, what is it? speak out, james, and tell me all about it. tell me--tell me as a friend! if there is any trouble--" "well, sir joseph, i could put up with anything from _you_, sir joseph, but i _can't get on with my lady_!" "my lady be--. o james, what a sinner you make of me! is that all, james? then go down on your knees at once and _thank god my lady is not your wife_!" it was a happy thought, and james stayed. i don't think i have mentioned a curious reason that a jury once gave for _not_ finding a prisoner guilty, although he had been tried on a charge of a most terrible murder. the evidence was irresistible to anybody but a jury, and the case was one of inexcusable brutality. the man had been tried for the murder of his father and mother, and, as i said, the evidence was too clear to leave a doubt as to his guilt. the jury retired to consider their verdict, and were away so long that the judge sent for them and asked if there was any point upon which he could enlighten them. they answered no, and thought they understood the case perfectly well. after a great deal of further consideration they brought in a verdict of "_not guilty_." the judge was angry at so outrageous a violation of their plain duty, and did what he ought not to have done--namely, asked the reason they brought in such a verdict, when they knew the culprit was guilty and ought to have been hanged. "that's just it, my lord," said the foreman of this distinguished body. "i assure you we had no doubt about the prisoner's guilt, but we _thought there had been deaths enough in the family lately, and so gave him the benefit of the doubt_!" there was a young solicitor who had been entrusted with a defence in a case of murder. it was his first case of importance, and he was, of course, enthusiastic in his devotion to his client's interests. indeed, his enthusiasm rather overstepped his prudence. by dint of perseverance and persuasion he obtained a promise from a juror-in-waiting that if he should be on the jury he would consent to no other verdict than manslaughter, which would be a tremendous triumph for the young solicitor. the case was a very strong one for wilful murder. the friendly juror-in-waiting took his seat in the box. everything went well except the evidence, and the solicitor's heart almost failed for fear his man should give way. the jury for a long time were unable to agree. now the young solicitor felt it was his faithful juror who was standing out. "all agreed but one, my lord." "go back to your room," said the judge; which they did, and after another long absence returned with a verdict of "manslaughter." jubilant with his success, the young solicitor met his juryman, congratulated him on his firmness, and thanked him for his exertions. "how did you manage it, my good friend--how did you manage? it was a wonderful verdict--wonderful!" "oh," said he, "i was determined not to budge. i never budge. conscience is ever my guide." "i suppose there were eleven to one against you?" "eleven to one! a tough job, sir--a tough job." "eleven for wilful murder, eh?" said the jubilant young man. "dear me, what a narrow squeak!" "eleven for _murder_! no, sir!" exclaimed the juror. "what, then?" "_eleven for an acquittal_! you may depend upon it, sir, the other jurors had been 'got at.'" lord watson, dining with me one grand day at gray's inn, said he recollected a very stupid and a very rude scottish judge (which seems very remarkable) who scarcely ever listened to an advocate, and pooh-poohed everything that was said. one day a celebrated advocate was arguing before him, when, to express his contempt of what he was saying, the cantankerous old curmudgeon of a judge pointed with one forefinger to one of his ears, and with the other to the opposite one. "you see this, mr. ----?" "i do, my lord," said the advocate. "well, it just goes in here and comes out there!" and his lordship smiled with the hilarity of a judge who thinks he has actually said a good thing. the advocate looked and smiled not _likewise_, but a good deal more wise. then the expression of his face changed to one of contempt. "i do not doubt it, my lord," said he. "what is there to prevent it?" the learned judge sat immovable, and looked--like a judicial--_wit_. i was now getting on so well in my profession that in the minds of many of the unsuccessful there was a natural feeling of disappointment. why one man should succeed and a dozen fail has ever been an unsolved problem at the bar, and ever will be. but the curious part of this natural law is that it manifests itself in the most unexpected manner. coming one day from a county court, where i had had a successful day, and humming a little tune, whom should i meet but my friend morgan ----. he was a very pleasant man, what is called a _nice man_, of a quiet, religious turn of mind, and nobody was ever more painstaking to push himself along. he was a great stickler for a man's doing his duty, and was possessed with the idea that, getting on as i was, it was my duty to refuse to take a brief in the county court. coming up to me on the occasion i refer to, morgan said, "what, _you_ here, hawkins! i believe you'd take a brief before the devil in h----." i was quite taken aback for the moment by the use of such language. if he had not been so religious a man, perhaps i should not have felt it so much; as it was, i could hardly fetch my breath. when i recovered my equanimity i answered, "yes, morgan, i would, and should get one of my devils to hold it." he seemed appeased by my frank avowal, for he loved honesty almost as much as fees. chapter xvii. appointed queen's counsel--a serious illness--sam lewis. on january , , the lord chancellor did me the honour of recommending my name to her most gracious majesty, and i was raised to the rank and dignity of a queen's counsel. this is a step of doubtful wisdom to most men in the legal profession, for it is generally looked upon as the end of a man's career or the beginning. i had no doubt about the propriety of the step; it had been the object of my ambition, and i believe i should unhesitatingly have acted as i did even if it had been the termination of my professional life. my idea was to go forward in the career i had chosen. the junior work, if it had not lost its emoluments, no longer possessed the pleasurable excitement of the old days. it was never my ambition merely to "mark time;" that is unsatisfactory exertion, and leads no whither. but enough; i took silk, and a new life opened before me. i was a leader. my business rolled on in ever-increasing volume, so that i had to fairly pick my way through the constant downpour of briefs, but was always pressed forward by that useful institution known as the "barrister's clerk." whatever business overwhelms the counsel, no amount of it would disconcert the clerk, and it is wonderful how many briefs he can arrange in upstanding attitude along mantelpieces, tables, tops of dwarf cupboards, windows--anywhere, in fact, where there is anything to stand a brief on--without that gentleman feeling the least exhausted. it would take as long to wear him out as to wear to a level the rocks of niagara. the loss of a brief to him is almost like the loss of an eye. it would take a week after such a disaster to get the right focus of things. my clerk came rushing into my room one day so pale and excited that i wondered if the man had lost his wife or child. he did not leave me long in suspense as soon as he could articulate his words. "sir," said he, "you know those emmets that you have done so much for?" i remembered. "well, sir, they've taken a brief to another counsel." it was a serious misfortune, no doubt, and i had to soothe him in the best manner i could; so to lessen the calamity i made the best joke i could think of in the circumstances, and said the emmets were small people, almost beneath notice. i don't wonder that he did not see it with tears in his eyes; his distress was painful to witness. the poor fellow was dumbfounded, but at last shook his head, saying,-- "we've had a good deal from those emmets, sir." "but you need not make mountains out of ant-hills." he did not see that either. i was now living in bond street, and for the first time in my life was taken seriously ill. my clerk's worry then came home to me; not about a single brief, but about a great many. illness would be a very serious matter, as i had arrived at an important stage in my career. a barrister in full practice cannot afford to be ill. in my distress i sent to baron martin, as i was in every case in his list for the following day, and begged him to oblige me by adjourning his court. it was a large request, but i knew his kindness, and felt i might ask the favour. baron martin, i should think, never in his life did an unkind act or refused to do a kind one. he instantly complied with my request, and did not listen for a moment to the "public interest," as the foolish fetish is called which sometimes does duty for its neglect. the "public interest" on this occasion was the interests of all those who had entrusted their business to my keeping. the public interests are the interests of the suitors. my illness threatened to be fatal. i had been overworked; and nothing but the greatest care and skill brought me round. one never knows what friendship is and what friends are till one is ill. at length there was a consultation, drs. addison, charles johnson, duplex, and f. hawkins, my cousin, being present. it was a kind of medical jury which sat upon me. i will pass over details, and come to the conclusion of the investigation. after considering the case, dr. addison, who acted as foreman of the jury, said,-- "we find a verdict of 'guilty,' under mitigating circumstances. the prisoner has not injured himself with intent to do any grievous bodily or mental harm, but he has been guilty of negligence, not having taken due care of himself, and we hope the sentence we are about to pass will act as a warning to him, and deter others from following a like practice. the prisoner is released on bail, to come up for judgment when called upon; and the meaning of that is," said dr. addison, "that if you behave yourself you will hear no more of this; but if you return to your former practice without any regard to the warning you have had, you will be promptly called up for judgment, and i need not say the sentence will be proportioned to the requirements of the case. you may now go." to carry on dr. addison's joke, i heartily thanked him for taking my good character into consideration, and practically acquitting me of all evil tendencies. acting upon his good advice, from that time to this i have never been in trouble again. watson, q.c., afterwards baron watson, advised me to take a long rest; but as he was not a doctor of medicine, i did not act upon his advice. a long rest would have killed me much faster than any amount of work, so i worked with judgment; and although my business went on increasing to an extent that would not have pleased dr. addison, i suffered no evil effects, but seemed to get through it with more ease than ever, and was soon in a fair way to achieve the greatest goal of human endeavour--a comfortable independence. the reason of getting through so much work was that i had to reject a great deal, and, of course, had my choice of the best, not only as to work, but as to clients. to use a sporting phrase, i got the best "mounts," and therefore was at the top of the record in wins. good cases are easy--they do not need winning; they will do their own work if you only leave them alone. bad cases require all your attention; they want much propping, and your only chance is that, if you cannot win, your opponent may _lose_. but nothing in the chatter about the bar is more erroneous than the talk of the tremendous incomes of counsel. a man is never estimated at his true worth in this world, certainly not a barrister, actor, physician, or writer; and as for incomes, no one can estimate his neighbour's except the income-tax commissioners. they get pretty near sometimes, however, without knowing it. one morning i was riding in the park when old sam lewis, the great money-lender, a man for whom i had much esteem, and about whom i will relate a little story presently, came alongside. we were on friendly and even familiar terms, although i never borrowed any money of him in my life. "why, mr. hawkins," said he, "you seem to be in almost everything. what a fortune you must be piling up!" "not so big as you might think," i replied. "why, how many," he rejoined, "are making as much as you? a good many are doing twenty thousand a year, i dare say, but--" here i checked his curiosity by asking if he had ever considered what twenty thousand a year meant. he never had. "then i will tell you, lewis. _you_ may make it in a day, but to us it means five hundred golden sovereigns every week in the working year!" it somewhat startled him, i could see, and it effected my object without giving offence. what did it matter to sam lewis what my income was? "there are men who make it," he answered. "some men have made it," i said; "and i know some who make more, but will never own to it, ask who may." i may say i liked sam lewis, and having told the story of the queen's counsel who _borrowed_ my money in so dishonest a manner, i will tell one of sam, the professional money-lender. he never was known to take advantage of a man in difficulties, and he never did, nor to charge any one exorbitant interest. i have known him lend to men and allow them to fix their own time of payment, their own rate of interest, and their own security. he often lent without any at all. he knew his men, and was not fool enough to trust a rogue at any amount of interest. he was known and respected by all ranks, and never more esteemed than by those who had had pecuniary transactions with him. he was the soul of honour, and his transactions were world-wide; business passed through his hands that would have been entrusted nowhere else; so that he was rich, and no one was more deservedly so. here is an incident in lewis's business life that will show one phase of his character. he held a number of bills, many of which were suspected by him to be forged--that is to say, that the figures had been altered after the signature of the acceptor had been written. they were all in the name of lord ----. one day lewis met his lordship in the park, and mentioned his suspicion, at the same time inviting him to call and examine the bills. the noble lord was a little amazed, and proceeded at once to lewis's office. seating himself on one side of the table with his lordship on the other, lewis handed to him the bills one by one and requested him to set aside those that were forged. the separation having been made, it appeared that over _twenty thousand-pounds' worth of the bills were forged_! the noble lord was a little startled at the discovery, but his mind was soon eased by lewis putting the whole of the forged bills into the fire. "there's an end of them, my lord," said he. "we want no prosecution, and i do not wish to receive payment from you. i ought to have examined them with more care, and you ought not to have left space enough before the first figure to supplement it by another. the rogue could not resist the temptation." so ended this monetary transaction, creditable alike to the honour and generosity of the money-lender. the most steady of minds will sometimes go on the tramp. this was never better illustrated than when the young curate was being married, and the officiating clergyman asked him the formal question, "wilt thou have this woman to thy wedded wife?" the poor bridegroom, losing self-control, and not having yet a better half to keep him straight, answered, "that is my desire," anticipating by a considerable period a totally different religious ceremony of the church--namely, the baptism of infants. in his anticipation the young man had overreached the necessities of the situation. this momentary digression leads me to the following story. i was staying at the house of an old friend, a wealthy hebrew, while another of the guests was arthur a'becket. as will sometimes happen when you are in good spirits, the conversation took a religious turn. we drifted into it unconsciously, and our worthy host was telling us that he was in the habit of praying night and morning. being in a communicative mood, i said, "well, since you name it, i sometimes say a little prayer myself." the hebrew was attentive, and seemed not a little surprised. "this is especially the case in the morning," i added. "but once upon a time my mind wavered a little between business and prayer, and i found myself in the midst of my devotional exercise saying, 'gentlemen of the jury.'" "thank god!" cried a'becket, "our friend hawkins is not a unitarian." i often wonder how i was able to get through the amount of business that pressed upon me and retain my health, but happily i did so. one great factor in my fortunate condition of health was, perhaps, that i had no ridiculous ambition. what was to come would come as the result of hard work, for i was born to no miraculous interpositions or official friendships. having dropped gambling, i set to work, and after a long spell of _nisi prius_, in all its phases, had engaged my attention, a new sphere of action presented itself in the shape of compensation cases--an easy and lucrative branch, which seemed to be added to, rather than have grown out of, our profession; but whatever was its connection, it was a prolific branch, hanging down with such good fruit that it required no tempter to make you taste it. railway, government, and municipal authorities were everywhere taking land for public improvements, and where they were, as a rule, my friend horace lloyd and myself were engaged in friendly rivalry as to the amount to be paid. chapter xviii. the prize-fight on frimley common. i must now describe a remarkable event that occurred a great many years ago, and which caused no little amusement at the time; indeed, for years after baron parke used to tell the story with the greatest pleasure. in those old days there was a prize-fight on frimley common, and it was known long after as the "frimley common prize-fight," although many a battle had taken place on frimley ridges before that time, and many a one since. this particular fight was the more celebrated because one of the combatants was killed, and i remember the events connected with it as clearly as if they had taken place only yesterday. at the following kingston assizes the victorious pugilist was indicted for manslaughter. it was an awful charge, especially before the judge who was then presiding. the man, however, escaped for the moment, and a warrant was issued for his apprehension. at a later period i was at guildford, where the assizes were being held. even at that time the man "wanted" for the manslaughter could be easily identified, for he still bore visible signs of the punishment he had undergone in the encounter. i was sitting in court one afternoon when a country sporting attorney of the name of morris quietly sidled up to me. i ought to mention that at these assizes lord chief justice erie was sitting, and it was well known that he also detested the prize ring, and had therefore, no sympathy with any of its members. he was consequently a dangerous judge to have anything to do with in a case of this kind. his punishment would be sure to be one of severity, and a conviction a dead certainty. there was a sparkle in the sporting solicitor's eye, as he glanced at me over his shoulder, which plainly intimated that he had something good to communicate. as he came in front of the seat where i was, he said, in a subdued whisper, that he had been instructed by lord ---- to defend the accused prize-fighter; that the man was at that moment in the town, and would like to have my opinion as to whether it would be prudent to surrender at these assizes--surrender, that is to say, to the constables who were on the lookout for him; or whether it would be better, as they were ignorant of his whereabouts, to delay his trial until the next assizes, when he would be better prepared to face the tribunal, as by that time he would have recovered from the punishment he had received. it is certain the jury would have taken his battered appearance as evidence of the damage he had inflicted on his adversary, whom he had unfortunately killed; and even more likely that erle should have regarded his injuries in the same light, and punished him more severely for having received them. i had a perfect right to answer the question put to me, and felt that it was my duty to the accused to answer frankly. so i said there was little doubt, as the man was dead, and the accused still bore unmistakable signs of the contest, there would be pretty clear evidence of identity; that as erle was not a fool, he would most certainly convict him; while, being opposed to everything connected with the "noble art of self-defence," he might send him to penal servitude for a number of years. i had no need to say more. the solicitor, who was a ready-witted and voluble man, was anxious to amalgamate his opinion with mine. he was shrewd, and caught an idea before you could be sure you had one yourself. "the most prudent thing, sir," he said, "would be to surrender at the next assizes, and not at these. that is just what i thought, sir, and so i told him, advising in the meantime that he should carefully avoid putting himself in the way of the police." i have no doubt he acted on this opinion, for i heard that he left the town immediately, and was neither seen nor heard of again till the eve of the spring assizes, which were to be held at kingston, and at which baron parke was to preside. the baron was one of the shrewdest of men, as any one would discover who attempted to deceive him. on the commission day the attorney for the accused presented himself to me again, and once more sought my opinion with regard to the trial and the surrender of the accused. "would it be proper," he asked, "for my client to show his respect for the court and dress in a becoming manner; or should he appear in his everyday clothes as a working bricklayer, dirty and unwashed?" again i advised, as was my duty, that he should scrupulously regard the dignity of the bench, and show the greatest respect to the learned judge who presided; that he ought not to come in a disgraceful costume if he could help it, but appear as becomingly attired as possible. that was all i said. let me also observe, what perhaps there is no occasion to say, that i impressed upon the attorney that his client should abstain from any appearance of attempting to deceive the judge, and informed him, as the fact was, that his lordship was scrupulously particular in all points of etiquette and decorum. moreover, i added as a last word, "the judge is too shrewd to be taken in." after thus duly impressing upon him the importance of a quiet behaviour, i suggested that any costume other than that of the man when actually engaged in the fight _might_ throw some difficulty in the way of a young and inexperienced country constable identifying him. it was never too late for even a bricklayer to mend his garments or his manners and adjust them to the occasion. the policeman who alone could identify the frimley champion had not seen him for many months--not since the fight, in fact; and the prisoner ought not to appear in the dock in fighting costume, as the young surrey constable saw him on that one occasion. moreover, baron parke would not like him to appear in that dress. this was, as nearly as i can remember, all that took place between us. judge, now, of my surprise, if you can, when the case was called on, to see the prisoner appear in the dock looking like a _young clergyman_, dressed in a complete suit of black, a long frock coat, fitting him up to the neck and very nearly down to the heels. he had the appearance of a very tame curate. his hair, instead of being short and stumpy, as when the young policeman saw him, was now long, shiny, and carefully brushed over both sides of his forehead, which gave him the appearance so fashionable amongst the saints of the old masters. i was utterly astounded at the change from the rude, rough bricklayer, scarred all over the face, to the clergyman-like appearance of this gentlemanly prisoner. i dared not laugh, but it was difficult to maintain my countenance. deceive baron parke! i thought; he would deceive the devil himself, who knew a great deal more about parsons than parke did. the learned judge looked at him for a considerable time, as though he had never seen a prize-fighter before, and was determined to make the most of him. if the ghost of hamlet had stood in the dock instead of the prisoner, he would not have surprised dear old parke more than the prisoner did. it was a masterpiece of deception, notwithstanding my serious warning. on the jury, it so happened, was an elderly quaker, in his full array of drab coat, vest, and breeches, with the regulation blue stockings. he had long whitish hair, and a quaker hat in front of him on the ledge of the jury-box. he was what might be called a "factor" in the situation, which it was no easy matter to know in a moment how to deal with. he would be against prize-fighting to a certainty, but how far he might be inclined to convict a prize-fighter was another matter. at last i made up my mind in what way to deal with him, and it was this--not on the merits of the noble art itself, but on those of the case. if i could convince this conscientious juror that there _might be_ (that would be good enough) a doubt as to identity, it would be sufficient for my purpose; so i mainly addressed myself to _him_, after disposing of the young policeman pretty satisfactorily, leaving only his bare belief to be dealt with in argument. the young policeman's belief that _that there_ was the man showed what a strong young policeman he was. i asked the quaker to allow me to suggest, for the sake of argument only, that _he_, the quaker, should imagine himself putting off his quaker dress, and assuming the costume of a prize-fighter, his hair cut so short that it would present the appearance of an aged rat; "then," said i, "divest yourself of your shirt and flannel--strip yourself, in fact, quite to the skin above your belt--and with only a pair of cotton drawers of a sky blue, or any other colour you might prefer, and, say, a bird's-eye _fogle_ round your waist, your lower limbs terminating in cotton socks and high-lows--with the additional ornamentation to all this elegant drapery of a couple of your front teeth knocked out--and i will venture to ask you, sir, and any one of the gentlemen whom i am addressing, whether you think your own good and respectable wife herself would recognize the partner of her joys?" the burst of laughter which this little transformation of the respectable, stout old quaker occasioned i was in no way responsible for; but even old parke fell back in his seat, and said,-- "mr. hawkins! mr. hawkins!" i knew what that meant, and when the usher, by dint of much clamour, secured me another hearing, i continued,-- "nay, sir, and if you looked at yourself in a looking-glass you would not be able to recognize a single feature you possessed, had you been battered about the face as the unfortunate man was. why, the young policeman says in his evidence his nose was flattened, his, eyes were swollen black, blue, and red, his cheeks gashed and bloody! but it is enough: if that is a correct description, although a mild one, of the man as he appeared after the scene of the conflict, how can you expect the young constable to recognize such an individual months afterwards, or any of the witnesses, although to their dying day they would not forget the terrible disfigurement of the poor fellow whom you are supposed to be trying?" all this time there was everywhere painfully suppressed laughter, and even the jury, all of them epsom men, and many of whom i knew well enough, were hardly able to contain themselves. his lordship, after summing up the case to the jury, looked down quietly to me, as i was sitting below him, and murmured,-- "hawkins, you've got all epsom with you!" "yes," i answered, "but you have got the quaker; he was the only one i was afraid of." "you have transformed him," said the judge. in a few minutes the verdict showed the accuracy of his lordship's observation, for the jury returned a verdict of "not guilty." i must say, however, that parke did his utmost to obtain a conviction, but reason and good sense were too much for him. chapter xix. sam warren, the author of "ten thousand a year." amongst the illustrious men whom i have met, the name of sam warren deserves remembrance, for he was a genial, good-natured man, full of humour, and generally entertained a good opinion of everybody, including himself. he not only achieved distinction in his profession and became a queen's counsel, but wrote a book which attained a well-deserved popularity, and was entitled "ten thousand a year." he was a member of the northern circuit, and i believe was as popular as his book. that he did not become a judge, like several of his friends, was not sam's fault, for no man went more into society, cultivated acquaintances of the best style, or had better qualifications for the honour than he. but although he did not achieve this distinction, he was made a little lower than that order, and became in due time a _master in lunacy_, a post, as it seemed from sam's description, of the highest importance and no little fun. a part of his duties was to visit lunatic asylums and other places where these patients were confined, with a view to report to the authorities his opinion of the patients' mental condition. no doubt to a man of sam's observant mind this work presented many studies of interest, as well as situations of excitement, and at times of no little humour. he found, for instance, that many of these poor creatures were possessed of a much larger income than ten thousand a year. some of them were dukes and some supernatural beings, who were just on a visit to this little clod of a world to see how things were going. soon after his appointment, and before he had become used to the work, he told me of a singular experience he once had with a particular gentleman whom he was intending to report as having perfectly recovered from any mental aberration with which he might have been afflicted. sam wondered how it was possible that a gentleman of such culture and understanding should be considered a fit subject for confinement, for he had several pleasant and intellectual conversations with him, and found him quite agreeable and refined, and of a perfectly balanced mind. "i had been told," said the master, "that the peculiar form of derangement with this gentleman was that he had aspired to distinction in the english church; and on one memorable occasion when i called he received me, not with the usual familiarity, but with a certain stiffness and solemnity of bearing which was hardly in keeping with his courteous demeanour on other occasions. one had to be on one's guard at all times, or he might get a knife plunged into him without notice. i chatted for some time in a kind and easy manner, hoping to find that the mild restraint and discipline had done the poor fellow good. alas! how deceived i was, when, in a sudden rage, he turned upon me, and asked _who the devil i thought i was talking to_?" "i told him a gentleman of a kind nature, i was sure, and of an amiable disposition. "'yes,' said he, 'but that is no reason why you should not treat me with proper deference and with due respect for my exalted position.' "i bowed politely, and expressed a hope that i should never forget what was due from one gentleman to another. "'no, no,' said he, 'that kind of excuse will not do. one gentleman to another, indeed! whom are you talking to? i insist on your treating me with reverence and respect. perhaps you do not know that i am _st. paul_?' "'indeed!' said i, 'i was not aware that i was speaking to that holy apostle, to one whom i hold in extreme reverence, and whose writings i have made my study.'" after that, it seems, they got on very well together for the rest of the interview. warren was able to delight him with his knowledge of cappadocia, phrygia, and pamphylia, and the little incident of leaving his cloak at troas, his shipwreck, and a vast number of things which the apostle seemed very pleased to hear, while he conducted himself with that pious dignity which well deserved the obsequious reverence of the official visitor. on parting, st. paul said,-- "you are rather _mixed in your scriptures_; the only thing you are accurate about is _leaving my cloak at troas_." on warren's next visit he resolved to conduct himself with more reverence. st. paul was looking much the same as on the previous occasion. sam genuflected, and held down his head, putting his hands devoutly together, and making such other manifestations of reverence as he thought the case required. st. paul looked at warren with wonderment, and was evidently by no means satisfied with his salutations. "who the devil," said the madman, "do you think you are making those idiotic signs to? whom do you take me for?" "st. paul, your holiness." "'st. paul, your holiness,' he repeated. 'my ----, you ought to be put into a lunatic asylum and looked after. you must be stark mad to think i am the holy apostle st. paul. what put that into your silly brains? down on your knees, villain, at once, and prostrate yourself before _the shah of persia_--the dawn of creation and the light of the universe!' "i thought this was coming it pretty strong," continued sam, "but as it was all in my day's work, i conformed as well as i could to my instructions. the difficulty was in knowing how to address his majesty, so i stammered, 'dread potentate!' and seeing it pleased him, 'light of the universe,' i cried, 'it is morning! may i rise?' "'i perceive,' said the shah, 'you are a genius,'" "what did you think of his state of mind after that?" i asked. sam laughed and answered: "i thought he was getting better, more rational, and thanked him for his good opinion. 'mighty potentate,' said i, 'monarch of the universe, i apologize for my mistake, but i was at _st. luke's_ yesterday,' "'my faithful luke!' said he, and clapped his hands. i knew once more where he was. "'the last time,' said i (thinking i would rather have him the amiable paul than the savage shah), 'your majesty informed me that you were the holy apostle st. paul!' "'so i am,' answered the shah. "'i am at a loss, your majesty, i humbly confess, to understand how your immortal highness can be at one and the same time the blessed apostle st. paul and the shah of persia,' "'because you are such a damned fool!' replied his highness. "here was the fierceness of the shah, but immediately the gentleness of the apostle restored him to a more amiable mood, and coming towards me with a smile, he said,-- "'the explanation, my dear sir, is simple;' and then, in a quiet, confidential tone, he added: '_it was the same mother, but two fathers_!'" "i had another experience not long after in the same asylum," continued warren. "one of my patients told me he had married the devil's daughter when i was asking him about his relations. 'she was a nice girl enough,' he said, 'and although my people thought i had married beneath me, i was satisfied with her rank, seeing she was a prince's daughter. we went off on our honeymoon in a chariot of fire which her father lent us for the occasion, and had a comfortable time of it at monte carlo, where all the hotels are under her father's special patronage.' "'i hope,' said i, 'your marriage was a happy one.' "'yes,' said he with a sigh, '_but we don't get on well with the old folks_!'" * * * * * no writer was ever more solicitous of fame than sam warren. it was a proud moment whenever there was the remotest allusion to his authorship, and i always loved to compliment him on his books. in the famous case of lord st. leonards's will, which had been lost, i supported the lost will, and proved its contents from the evidence of miss sugden and others. sam warren had been in the habit of visiting lord st. leonards at boyle farm, ditton. he gave evidence as to what lord st. leonards had told him respecting his intentions as to the disposal of his property. after examining him, i said with a polite bow: "mr. warren, i owe you an apology for bringing you into the probate court. i am sure no one will ever dream of disputing _your_ will, because you have left everybody '_ten thousand a year_!'" whereupon warren bowed most politely to me in acknowledgment of the compliment; then bowed to the _judge_, and received his lordship's bow in return; then bowed to the _jury_, then to the _bar_, and, lastly, to the _gallery_. writing of the probate and divorce court reminds me of a curious application for the postponement of a trial made by george brown, who was as good a humorist as he was a lawyer. i have said that judges in those days were more strict in refusing these applications than in ours, and cresswell was no exception to the rule. he disliked them, and rarely yielded. but brown was a man of a very persuasive manner, and it was always difficult to refuse him anything. i was sitting in cresswell's court when george rose as soon as the judge had taken his seat, and asked if a case might be postponed which would be in the next day's list. "have you an affidavit, mr. brown, as to the reason?" "yes, my lord; but i can hardly put the real ground of my application into the affidavit. i have communicated with the other side, and they are perfectly agreeable under the circumstances." "i cannot agree to postpone without some adequate cause being stated," said cresswell. "i am very sorry, my lord, but it will be very inconvenient to me to be here to-morrow." there was a laugh round the bar, which cresswell observing, asked what the real reason was. brown smiled and blushed; nothing would bring him to state plainly what the reason of his application was. at last, however, he stammered,-- "my lord, the fact is i am going to take the first step towards a divorce." the appeal touched the judge; the reason was sufficient. every step in a divorce was to be encouraged, especially the first. the application was granted, and brown was married the next day. chapter xx. the brighton card-sharping case. from the courts of justice to the prize-ring is an easy and sometimes pleasant transition, especially in books. i visited from time to time such well-known persons as "deaf burke," nat langham, "dutch sam," and owen swift, all remarkable men, with constitutions of iron, and made like perfect models of humanity. their names are unknown in these days, although in those of the long past gentlemen of the first position were proud of their acquaintance; and these men, although their profession was battering one another, were as little inclined to brutality as any. and when it is remembered that they played their game in accordance with strict rules and on the most scientific principles, it will be seen that cruelty formed no part of their character. the true sportsmen of the period, amongst whom were the highest in the social and political world, took the same interest in contests in the ring as they did on the turf or in the cricket-field, and for the same reason. whether jem mace would beat tom sayers had as much interest at fashionable dinner-tables as whether lord derby would dispose of aberdeen or palmerston. lords and dukes backed their opinion in thousands, and the bargee and the ostler gave or took the odds according to the tips, in shillings. the gentleman of the long robe, therefore, was not to be supposed as altogether out of his element in sporting circles any more than the gentleman who had not a rag to cover him. nor was it uncommon to meet what was called the cream of society at the celebrated rendezvous of ben caunt, which was the coach and horses, st. martin's lane, or at the less pretentious resort of the tipton slasher; and what will our modern ladies think of their fair predecessors, who in those days witnessed the drawing of a badger or a dog-fight on a sunday afternoon? all mankind will attend exhibitions of skill and prowess, and although prize-fights are illegal, you never can suppress the spirit which engendered that form of competition. i spent sometimes, with many eminent spectators, a quiet hour or two at tom spring's in holborn, and met many of the best men there in all ranks and professions, always excepting the church. after one of these entertainments i was travelling with john gully, once a formidable champion of the ring, and at that time a great bookmaker, as well as owner of racehorses--afterwards presented at court to her most gracious majesty the late queen--and member of parliament. we were travelling on our way to bath, and as we approached a tunnel not far from our destination, gully pointed out a particular spot "where," said he, "i won my first fight;" and so proud was he of the recollection that he might have been in a picture like that of wellington pointing out the field of waterloo to a young lady. this knowledge of the world, seen as i saw it, was of the greatest use in my profession. if you would know the world, you must not confine yourself to its virtues. there _is_ another side, and it is well to look at it. i thought on one particular occasion how useful a little of this knowledge would have been during a certain cross-examination of arthur orton in chancery by a member of the chancery bar. he put this question and many others of a similar kind,-- "do you swear, sir, that you were on board the _bella_?" in a very severe tone. "yes, sir," says the claimant, "i do." "stop," says the advocate; "i'll take that down;" and he did, with a great deal besides, his cross-examination materially assisting the man in prolonging his fraudulent claim. i was engaged in the brighton card-sharping case, upon which so much stress was laid by the claimant as proving his identity with roger tichborne, roger not having been in the matter at all. i was counsel for one of the persons, the notorious johnny broom, who was indicted for fraud, and whose trial ought to have come on before lord chief justice jervis. he was not a good judge, so far as the _defendant_ was concerned, to try such a case, and that being johnny's opinion, he absconded from his bail. the lord chief justice had a great knowledge of card-sharping and of all other rogueries, so that he was an apt man to deal with delinquents who practised them. conviction before him would have been certain in this case. he was, in fact, waiting for johnny, as it was a case of great roguery, and intended to deal severely with him. you may imagine, then, how angry he was when he heard that his man had flown. but there was one consolation: the broom gang consisted of a number of men who acted on all occasions as confederates when the frauds were practised. two of these rogues were also indicted, and placed on their trial at this assize. a mr. johnson appeared for the prosecution, and in opening the case for the crown, in order to show his uncommon fairness, was so impartial as to state that he could find no ground of complaint in respect of the _cards_, which, he said, had been most carefully examined by the brighton magistrates. who these brighton magistrates were i never heard, but probably they were gentlemen who knew nothing of sharpers and their ways, and whose only experience of cards was a quiet rubber with the ladies of their household. however, such was their unanimous opinion, and upon it the counsel for the crown informed the lord chief justice that he had no case so far as the fairness of the cards was concerned. the lord chief justice saw in a moment the importance of that admission on the part of the prosecution. if that were accepted the case was gone, since the fraud for which these men were indicted could not have been perpetrated by honest cards. "the brighton magistrates!" said the chief justice, with becoming emphasis. "give me the cards; i should like to have a look at them." they were handed up, and then a little scene took place which was picturesque and instructive. the judge took up the cards one by one after carefully wiping and adjusting his glasses to his nose, while his confidential clerk leant over his shoulder with clerk-like familiarity. having scrutinized them with the minutest observation, jervis packed them up, and, turning to mr. johnson, said,-- "mr. johnson, i will show you how the trick was done. if you will take that card"--handing him one from the pack "--you will see that to the ordinary eye there is nothing to attract your attention. that is precisely as it should be in all games of cheating, for if every fool could see the private marks the rogues could not carry on their calling." johnson took the card, and, instructed by the lord chief justice, carefully looked it over, but saw nothing. his face was a perfect blank, and his mind could not have been much more picturesque. "turn it over," said his lordship. johnson obeyed. still the cryptic hierograph did not appear. the judge stared at his pupil. "do you see," asked his lordship, "a tiny mark on the corner of the card at the back?" "oh, i see it!" says johnson, with a face beaming with delight and simplicity. "that means _the ace of diamonds_" said the chief--"ace of diamonds, mr. johnson!" and thus, after a while, the cards and their secret signs were explained to the counsel for the crown, who, on the intelligence of the brighton magistrates, declared that, so far as the _cards_ were concerned, he must acquit these card-sharping rogues of all intention to deceive. in all cases the back of the card showed what was on the face; that was the simple secret of the whole contrivance, although the brighton magistrates could not discover it, as the whole of them combined had not a hundredth part of the intelligent cuteness of lord chief justice jervis. two of this gang were standing near me, and i heard one of them say to the other,-- "joey, how would you like to play blind hookey with that ---- old devil?" "o my g----!" exclaimed joey. the prisoners were convicted principally upon the evidence of the lord chief justice, and sentenced to long terms of imprisonment. my client johnny got away. he read about jervis and this trial in the papers, and declared he would sooner abandon his profession than be tried by such an old thief. "why," said he, "that old bloke knows every trick on the board." his escape was rather interesting. he came into lewes fully intending to take his trial, and went out of lewes with the determination not to be tried at those assizes, for the simple reason, as he said, that jervis was too heavy weight for his counsel. he took a room and showed himself publicly; but at night the police--those stalwart county men--paid a tiptoe visit to his bedroom. they had no right to this privilege, but perhaps harry thought it would be better for his brother if they did so. why they went on tiptoe was that harry told them his brother was in so weak a state that he woke up with the least noise. the police very kindly believed him, and paid their first and second visit on tiptoe. when they went the third time, however, their bird had flown. johnny had let himself down by the window, and, evading the vigilance of those who may have been on the lookout, escaped. but he did not go without providing a substitute. harry was to answer all inquiries, and waited the arrival of his watchers, lying in johnny's bedroom. when the officers came he opened the door in his night apparel, and said, "hush! don't disturb him; poor johnny ain't slept hardly for a week over this 'ere job. but you can have a peep at him, only don't make a noise. there he is!" and he pointed to a fancy nightcap of his brother's, which only wanted johnny's head to make the story true. the good constables, having seen it as they saw it the night before, left the house as quietly as mice, still on tiptoe. harry described this performance to me himself. jervis had the whole country scoured for him, but unless he had scoured it himself, there was little chance of any one else finding the culprit. chapter xxi. the knebworth theatrical entertainments--sir edward bulwer--lytton--charles dickens, charles mathews, macready, douglas jerrold, and many others. among my pleasantest reminiscences were the partly amateur and partly professional entertainments that took place at the celebrated seat of the distinguished author, sir edward bulwer-lytton, about the year -. at that time a gentleman of position usually sought to enhance the family dignity by a seat in parliament. the most brilliant mediocrity even could not succeed without the patronage of the great families, while the great families were dependent upon those who had the franchise for the seats they coveted. forty-shilling freeholders were of some importance in those days; hence these theatrical performances at knebworth park, for sir edward wanted their suffrages without bribery or corruption. those who were the happy possessors of what they called the "frankise" were also distinguished enough, to be invited to the great performances at the candidate's beautiful estate. it was a happy thought to give a succession of dramatic entertainments, amongst which "every man in his humour" was one. sir edward knew his constituents and their tastes; it would be better than oratory at some village inn to ask them to the stately hall of knebworth, and give them one of our fine old english plays. i have already said that i had made up my mind in my earliest days to go to the bar or on the stage, and that love for the histrionic art (sometimes called the footlights) never left me. for some reason or other i was invited to join the illustrious company which assembled on those eventful evenings, although i was cast for a very humble part in the performance. nor is there much to wonder at when i tell you who my colleagues were. first comes that most distinguished comedian of his day, charles mathews. i had known him for many a year, and liked him the better, if that was possible, the longer i knew him. mathews was the leader of the company; next was another illustrious man whose name will live for ever, and who was not only one of the greatest authors of his time, but also the most distinguished of the non-professional actors. had he been on the stage, mathews himself could not have surpassed him. this was charles dickens. after him comes a great friend of sir edward, john foster, a barrister of lincoln's inn, and author of the "life of goldsmith," as well as editor of the _examiner_ newspaper. i am not quite sure whether macready was present on this particular occasion, but i think he was; there were really so many illustrious names that it is impossible at this distance of time to be sure of every one. macready was a great friend of bulwer, and with dickens and others was engaged in giving stage representations for charitable purposes in london and the provinces, so that it is at least possible i may be confounding knebworth with some other place where i was one of the company. amongst us also was another whose name will always command the admiration of his countrymen, douglas jerrold. there were also mark lemon, frank stone, and another royal academician, john leech, frederick dickens, radcliffe, eliot yorke, henry hale, and others whose names escape my memory at the present moment. no greater honour could be shown to a young barrister than to invite him to meet so distinguished a company, and what was even more gratifying to my vanity, asking me to act with them in the performance. there were many ladies, some of them of the greatest distinction, but without the leave of those who are their immediate relatives, which i have no time now to obtain, i forbear to mention their names in this work. the business--for business it was, as well as the greatest pleasure--was no little strain on my energies, for i was now obtaining a large amount of work, and appearing in court every day. i had the orthodox number of devils--at least seven--to assist me, and every morning they came and received the briefs they were to hold. alas! of the illustrious people i have mentioned all are dead, all save one lady and myself. when will such a company meet again? i was no sooner in the midst of knebworth's delightful associations than i was anxious to return to the toilsome duties of the law courts, with their prosaic pleadings and windbag eloquence. i was wanted in several consultations long before the courts met, so that it was idle to suppose i could stay the night at knebworth. but what would i have given to be able to do so? not my briefs! they were the business of my life, without which the knebworth pleasures would not have been possible. i never looked with any other feeling than that of pleasure on my work, and whenever the question arose i decided without hesitation in favour of the more profitable but less delightful occupation. but i managed a compromise now and then. for instance, after i had done my duty in the consultations, and seen my work fairly started in court, i contrived to take the train pretty early to knebworth, in order to attend rehearsals as well as perform in the evening. sir edward's good-nature caused him much distress at my having to journey to and fro. what _could_ he do? he offered me the sole use of his library during the time i was there if i could make it in any way helpful, and said it should be fitted up as a bedroom and study. but it was impossible to do other than i did. the rehearsals were nearly always going on--we had audiences as though they were _matinées_--and they afforded much amusement to us as well as the spectators when we made our corrections or abused one another for some egregious blunder. this, of course, did not include mathews, who coached us from an improvised royalty box, where he graciously acted as george iv., got up in a wonderful georgian costume for the occasion. george was so good that he diverted the attention of the audience from us, and made a wonderful hit in his new character. i will not say that at our regular performances we always won the admiration, but i will affirm that we certainly received the forbearance, of our audience, which says a great deal for them. this observation, however, does not, of course, apply to the professional artists, but only to myself, who, luckily, through all the business still kept my head. and it will be easily understood that this was the more difficult, especially if i may include my temper with it, when the good-natured baronet actually invited several of his hertford friends and neighbours to take part in the performances, some of them being friends of my own and members of my profession. so that at this electioneering time the whole of that division was alive with theatricals and "every man in his humour," which was exactly what sir edward wanted. it was an ordeal for some of us to rehearse with the celebrities of the stage, but i need not say their good-humour and delight in showing how this and that should be done, and how this and that should be spoken, was, i am sure, reciprocated by all the amateurs in studying the corrections. never were lessons more kindly given, or received with more pleasurable surprise. some could scarcely conceive how they could so blunder in accent and emphasis. however, most things require learning, even advocacy and acting. eliot yorke was stage-manager, and wrote a very excellent prologue. it must have been good, it was so heartily applauded, and the same may be said of all of us. i think radcliffe studied the part of old knowell, while i played young knowell. speaking after this interval of many years, i believe we were all word-perfect and pretty well conscious of our respective duties. charles dickens arranged our costumes, while nathan supplied them. he arranged me well. i was quite satisfied with my elizabethan ruff wound round my throat, but must confess that it was a little uncomfortable for the first three or four hours. my hose also gave me great satisfaction and some little annoyance. i thought if i could walk into court without changing my costume, what a sensation i should create! what would campbell or jervis say to _young knowell_? my father, as i have mentioned, lived at hitchin, about six miles from knebworth, and my professional duties calling me so early to town, i arranged to sleep at hitchin, and go to london by an early train in the morning. sir edward was much concerned at all this, and again wondered whether his library could not be appropriated. but the other was the only practicable plan, and was adopted. every day i was in court by nine o'clock, sometimes worked till five, then went by rail to stevenage and drove to knebworth, three miles. that was the routine. it was then time to put on my elizabethan ruff and hose. after the play i once more donned my private costume, and supped luxuriously at a round table, where all our splendid company were assembled. after supper some of us used to retire to douglas jerrold's room in one of the towers, and there we spent a jovial evening, prolonging the entertainment until the small hours of the morning. then my fly, which had been waiting a long time, enabled me to reach hitchin and get three hours' sleep. all this was hard work, but i was really strong, and in the best of health, so that i enjoyed the labour as well as the pleasure. one cannot now conceive how it was possible to go through so much without breaking down. i attribute it, however, to the attendant excitement, which braced me up, and have always found that excitement will enable you to exceed your normal strength. i had very many theatrical friends, all of them delightful in every way. amongst them wright and paul bedford. such companions as these are not to be met with twice, each with his individuality, while the two in combination were incomparable. they kept one in a perpetual state of laughter. paul was irresistible in his drollery, and whether it was mimicry or original humour, you could not but revel in its quaint conceits. such men are benefactors; they brighten the darkest hours of existence, turn sorrow into laughter, and enable men to forget their troubles and live a little while in the sunshine of humour. banish philosophy if you please, banish ambition if you must banish something, but leave us _humour_, the light of the social world. all who have experienced its beautiful influence can appreciate its value, and understand it as one of the choicest blessings conferred on our existence. the dullest company was enlivened when wright entered upon the scene. i remember paul being told one day at the garrick club that a certain poor barrister, who had been an actor, was going to marry the daughter of an old friend. "ah!" said he, "yes, he's _a lover without spangles_." who but paul would have thought of so grotesque a simile? and yet its applicability was simply due to the language of the stage. i remember robson, too, and his wonderful acting; he had no rival. nature had given him the talent which art had cultivated to the highest perfection. next come the keelys' impersonations of every phase of dramatic life--originals in acting, and actors of originals. but i must not linger over this portion of my story. it would occupy many pages, and time and space are limited; i therefore take my leave of one of the pleasantest chapters in my reminiscences. all, alas! have passed away--all i knew and loved, all who made that time so happy; and reluctantly as i say it, it must be said: "farewell, dear, grand old. knebworth, with all thy glories and all the glad faces and merry hearts i met within your walls--a long, long, farewell!" chapter xxii. crockford's--"the hooks and eyes"--douglas jerrold. "crockford's" has become a mere reminiscence, but worthy, in many respects, of being preserved as part of the history of london. it was historic in many of its associations as well as its incidents, and men who made history as well as those who wrote it met at crockford's. it was celebrated alike for high play and high company. as i never had a real passion for gambling, it was to me a place of great enjoyment, for there were some of the celebrated men of the day amongst its invited guests--wits, poets, novelists, playwrights, painters--in fact, all who had distinguished themselves in art or literature, law, science, or learning of any kind were always welcomed. it was as pleasant a lounge as any in london, not excepting tattersall's, which has equal claims on my memory. at crockford's i met captain h----, a wonderful gamester; he died early, but not too early for his welfare, seeing that all the chances of life are against the gambler. padwick, too, i knew; he entertained with refined and lavish hospitality. he was one of the winners in the game of life who did not die early. he told good stories and put much interest into them. he knew palmer, the rugeley poisoner--a sporting man of the first water, who poisoned john parsons cook for the sake of his winnings, and his wife and mother, it was said, for the sake of the insurance on their lives. padwick knew everybody's deeds and misdeeds who sought to increase his wealth on the turf or at the gaming-table. he was a just and honourable man, but without any sympathy for fools. others i could recall by the score, men of character and of no character. some i knew afterwards professionally, and especially one, who, although convicted of crime, escaped by collusion the sentence justly passed upon him. another was a man of position without character, whose evil habits destroyed the talent that would have made him famous. but i need not dwell on the manifold characters and scenes of crockford's. there has been nothing like it either in its origin or its subsequent history. there will never be anything like it in an age of refinement and laws, which have been wisely passed for the protection of fools. the founder of this fashionable gambling place was at one time a small fishmonger in either the strand or fleet street, i forget which, and lived there till he removed to st. james's street, where he became a fisher of men, but never in any other than an honourable way. "his palace of fortune" was of the grandest style of architectural beauty. it was one in which the worshippers of fortune planked down the last acre of their patrimonial estates to propitiate the fickle goddess in the allurements of the gaming-table. but how _can_ fortune herself give two to one on all comers? some _must_ lose to pay the winners. at this palatial abode the most sumptuous repasts were prepared by the most celebrated _chefs_ the world could produce, and were eaten by the most fastidious and expensive gourmands nature ever created; gamblers of the most distinguished and the most disreputable characters; gentlemen of the latest pattern and the oldest school, the worst of men and the best, sporting politicians and political sportsmen, place-hunters, ministers, ex-ministers, scions of old families and ancient pedigrees, as well as men of new families and no pedigrees, who purchased, as we do now, a coat of arms at the heralds' tailoring shop, and selected their ancestors in wardour street. only the wealthy could be members of this club, for only the wealthy could lose money and pay it. landscape painters might be guests, but it was only the man who belonged to the landscape who could belong to the body that gambled for it. young barristers might visit the place, possibly with an eye to business, but only members of large practice or judges could be members of this society. lord palmerston defended it manfully before the committee appointed really for its destruction. he said it did a great deal of good--much more good than all the gambling hells of london did harm. whether his lordship contended that there was no betting carried on at crockford's i am not prepared to say, but when evidence is given before parliamentary committees it is sometimes difficult to understand its exact meaning. palmerston, however, positively said, without any doubt as to his meaning, that candidates were not elected in order that they might be plucked of every feather they possessed, and that any one who maintained the contrary was slandering one of the most respectable clubs in london. some men would rather have pulled down st. paul's than crockford's. it was the very perfection of a club, said the statesman, and its principal game was chicken hazard. what could be stronger evidence than that of its usefulness and respectability? at this game they usually lost all they had, of little consequence to those who could not do better with their property, and perhaps the best thing for the country, because when it got into better hands it stood some chance of being applied to more legitimate purposes. after a while crockford quarrelled with his partner, and they separated. whatever men may say in these days against an institution which flourished in those, ex-prime ministers, dukes, earls, and ex-lord chancellors, as well as future ministers of state and future judges, belonged to it, or sought eagerly for admission to its membership. to be under the shadow of the fishmonger was greatness itself. at the mention of the name of crockford's a procession of the greatest men of the day passes before my eyes; their name would be legion as to numbers, but an army of devoted patriots i should call them in every other sense, for they were english to the backbone, whether gamblers or saints. of course there were some amongst them, as in every large body of men, who were not so desirable to know as you could wish; but they were easy to avoid and at all times an interesting study. there were wise men and self-deluded fools, manly, well-bred men, and effeminate, conceited coxcombs, who wore stays and did up their back hair, used paint, and daubed their cheeks with violet powder. these men, while they had it, planked down their money with the longest possible odds against them. there was one who was the very opposite to these in the person of old squire osbaldistone. true, he had squandered more money than any one had ever seen outside the bank of england, but he had done it like a gentleman and not like a fool. a real grand man was the old squire, and i enjoyed many a walk with him over newmarket heath, listening to his amusing anecdotes, his delightful humour and brilliant wit. his manner was so buoyant that no one could have believed he had spent hundreds of thousands of pounds, but he had, without compunction or regret. the novelist and the painter could artistically describe squire osbaldistone. i can only say he was a "fine old english gentleman, one of the olden time." it was in a billiard-room at leamington where i first met him, and as he was as indifferent a player as you could meet, he thought himself one of the best that ever handled a cue. i neither played chicken hazard nor any other game, but enjoyed myself in seeing others play, and in picking up crumbs of knowledge which i made good use of in my profession. the institution was not established for the benefit of science or literature, except that kind of literature which goes by the name of bookmaking. its founder was a veritable dunce, but he was the cleverest of bookmakers, and made more by it in one night than all the authors of that day in their lives. one hundred thousand pounds in one night was not bad evidence of his calculation of chances and his general knowledge of mankind. to be a member of this club, wealth was not the only qualification, because in time you would lose it; you had to be well born or distinguished in some other way. the fishmonger knew a good salmon by its appearance; he had also a keen respect for the man who had ancestors and ancestral estates. i ought not to omit to mention another celebrated bookie of that day; he was second only to crockford himself, and was called "the librarian." he was also known as "billy sims." billy lived in st. james's street, in a house which has long since been demolished, and thither people resorted to enjoy the idle, witty, and often scandalous gossip of the time. it was as easy to lose your reputation there as your money at crockford's, and far more difficult to keep it. the only really innocent conversation was when a man talked about himself. from that popular gossiping establishment i heard a little story told by the son of sydney smith. his father had been sent for to see an old lady who was one of his most troublesome parishioners. she was dying. sad to say, she had always been querulous and quarrelsome. it may have been constitutional, but whatever the cause, her husband had had an uncomfortable time with her. when sydney smith reached the house the old lady was dead, and the bereaved widower, a religious man in his way, and acquainted with scripture, said,-- "ah, sir, you are too late: my poor dear wife has gone to _abraham's bosom_." "poor abraham!" exclaimed sydney; "she'll tear his inside out." as all these things pass through my memory, i recall another little incident with much satisfaction, because i was retained in the case. it was a scandalous fraud in connection with the gaming-table. an action was brought by a cheat against a gentleman who was said to have lost £ , on the cast of the dice. i was the counsel opposed to plaintiff, who was said to have cheated by means of _loaded dice_. i won the case, and it was generally believed that the action was the cause of the appointment of the "gaming committee," at which tribunal all the rascality of the gaming-tables was called to give evidence, and the witnesses did so in such a manner as to shock the conscience of the civilized world, which is never conscious of anything until exposure takes place in a court of law or in some other legal inquiry. diabolical revelations were brought to light. however, as i have said, lord palmerston effectually cleared crockford's, and it almost seemed, from the evidence of those who knew crockford's best, that they never played anything there but old-fashioned whist for threepenny points, patience, and beggar-my-neighbour. his royal highness the then prince of wales came into court during the trial i refer to, and seemed interested in the proceedings. i wonder if his majesty now remembers it! in those days baron martin and i met once a year, he on the bench and i in court, with a hansom cab waiting outside ready to start for the derby. it is necessary for judges to sit on derby day, to show that they do not go; but if by some accident the work of the court is finished in time to get down to epsom, those who love an afternoon in the country sometimes go in the direction of the downs. there is usually a run on the list on that day. there was another club to which i belonged in those old days, called "the hooks and eyes," where i met for the last time poor douglas jerrold. he was one of the eyes, and always on the lookout for a good thing, or the opportunity of saying one. he was certainly, in my opinion, the wittiest man of his day. but at times his wit was more hurtful than amusing. wit should never leave a sting. he was sometimes hard on those who were the objects of his personal dislike. of these sir charles taylor was one. he was not a welcome member of the hooks and eyes, and jerrold knew it. there was really no reason why sir charles should not have been liked, except perhaps that he was dull and prosaic; rather simple than dull, perhaps, for he was always ready to laugh with the rest of us, whether he understood the joke or not. and what could the most brilliant do beyond that? sir charles was fond of music. he mentioned in jerrold's company on one occasion "that 'the last rose of summer' so affected him that it quite carried him away." "can any one hum it?" asked jerrold. chapter xxiii. alderson, tomkins, and a free country--a problem in human nature. alderson was a very excellent man and a good judge. i liked him, and could always deal with him on a level footing. he was quaint and original, and never led away by a false philanthropy or a sickly sentimentalism. appealed to on behalf of a man who had a wife and large family, and had been convicted of robbing his neighbours, "true," said alderson--"very true, it is a free country. nothing can be more proper than that a man should have a wife and a large family; it is his due--as many children as circumstances will permit. but, tomkins, you have no right, even in a free country, to steal your neighbour's property to support them!" i liked him where there was a weak case on the other side; he was particularly good on those occasions. in the assize court at chelmsford a barrister who had a great criminal practice was retained to defend a man for stealing sheep, a very serious offence in those days--one where anything less than transportation would be considered excessive leniency. the principal evidence against the man was that the bones of the deceased animal were found in his garden, which was urged by the prosecuting counsel as somewhat strong proof of guilt, but not conclusive. it must have struck everybody who has watched criminal proceedings that the person a prisoner has most to fear when he is tried is too often his own counsel, who may not be qualified by nature's certificate of capacity to defend. however, be that as it may, in this case there was no evidence against the prisoner, unless his counsel made it so. "counsel for the defence" in those days was a wrong description--he was called the _friend_ of the prisoner; and i should conclude, from what i have seen of this relationship, that the adage "save me from my friends" originated in this connection. the friend of this prisoner, instead of insisting that there was no evidence, since no one could swear to the sheep bones when no man had ever seen them, endeavoured to explain away the cause of death, and thus, by a foolish concession, admitted their actual identity. it was not alderson's duty to defend the prisoner against his own admission, although, but for that, he would have pointed out to the crown how absolutely illogical their proposition was in law. but the "friend" of the prisoner suggested that sheep often put their heads through gaps or breakages in the hurdles, and rubbed their necks against the projecting points of the broken bars; and that being so, why should the jury not come to a verdict in favour of the prisoner on that ground? it was quite possible that the constant rubbing would ultimately cut the sheep's throat. if it did not, the prisoner submitted to the same operation at the hand of his "friend." "yes," said baron alderson, "that is a very plausible suggestion to start with; but having commenced your line of defence on that ground, you must continue it, and carry it to the finish; and to do this you must show that not only did this sheep in a moment of temporary insanity--as i suppose you would allege in order to screen it--commit suicide, but that it skinned itself and then buried its body, or what, was left of it after giving a portion to the prisoner to eat, in the prisoner's garden, and covered itself up in its own grave. you must go as far as that to make a complete defence of it. i don't say the jury may not believe you; we shall see. gentlemen, what do you say--is the sheep or the prisoner guilty?" the sheep was instantly acquitted. there was another display of forensic ingenuity by the same counsel in the next case, where he was once again the "friend" of the prisoner. a man was charged with stealing a number of gold and silver coins which had been buried a few hours previously under the foundation-stone of a new public edifice. the prisoner was one of the workmen, and had seen them deposited for the historical curiosity of future ages. antiquity, of course, would be the essence of the value of the coins, except to the thief. the royal hand had covered them with the stone, duly tapped by the silver trowel amidst the hurrahs of the loyal populace, in which the prisoner heartily joined. but in the night he stole forth, and then stole the coins. they were found at his cottage secreted in a very private locality, as though his conscience smote him or his fear sought to prevent discovery. his legal friend, however, driven from the mere outwork of facts, had taken refuge in the citadel of law; he was equal to the occasion. alas! alderson knew the way into this impregnable retreat. counsel suggested that it was never intended by those who placed the coins where they were found that they should remain there till the end of time; they were intended, said he, to be taken away by somebody, but by whom was not indicated by the depositors, and as no time or person was mentioned, they must belong to the first finder. it was all a mere chance as to the time of their resurrection. further, it was certain they were not intended to be taken by their owners who had placed them there--they never expected to see them again--but by any one who happened to come upon them. those who deposited them where they were found parted not only with the possession, but with all claims of ownership. nor could any one representing him make any claim. all this was excellent reasoning as far as it went, and the only thing the prosecution alleged by way of answer was that they were intended to be brought to light as antiquities. "very well," said the prisoner's counsel; "then there is no felonious intent in that case--it is merely a mistake. antiquity came too soon." and so did the conviction. i was instructed, with the hon. george denman, son of my old friend, whom i have so often mentioned, to defend three persons at the maidstone assizes for a cruel murder. mr. justice wightman was the judge, and there was not a better judge of evidence than he, or of law either. the prisoners were father, mother, and son, and the deceased was a poor servant girl who had been engaged to be married to another son of the male prisoner and his wife. the unfortunate girl had left her service at gravesend, and gone to this family on a visit. the prisoners, there could be no doubt, were open to the gravest suspicion, but how far each was concerned with the actual murder was uncertain, and possibly could never be proved. the night before the trial the attorney who acted for the accused persons called on me, and asked this extraordinary question,-- "could you secure the acquittal of the father and the son if the woman will plead guilty?" it is impossible to conceive the amount of resolution and self-sacrifice involved in this attempt to save the life of her husband and son. it was too startling a proposal to listen to. i could advise no client to plead guilty to wilful murder. it was so extraordinary a proposition, look at it from whatever point i might, that it was perfectly impossible to advise such a course. i asked him if the woman knew what she was doing, and that if she pleaded guilty certain death would follow. "oh yes," said he; "she is quite prepared." "the murder," i said, "is one of the worst that can be conceived--cruel and fiendish." he agreed, but persisted that she was perfectly willing to sacrifice her own life if her husband and son could be saved. this woman, so full of feeling for her own family, had thought so little of that of others that she had held down the poor servant girl in bed while her son strangled her. "if," said i, "she were to plead guilty, the great probability is that the jury would believe they were all guilty--very probably they are; and most certainly in that case they would all be hanged." i therefore strongly advised that the woman should stand her trial "with the others," which she did. in the end they all _got off_! the evidence not being sufficiently clear against any. it was a strange mingling of evil and good in one breast--of diabolical cruelty and noble self-sacrifice. i leave others to work out this problem of human nature. chapter xxiv. charles mathews--a harvest festival at the village church. the sporting world has no greater claim on my memory than the theatrical or the artistic. i recall them with a vividness that brings back all the enjoyments of long and sincere friendships. for instance, one evening i was in charles mathews's dressing-room at the theatre and enjoying a little chat when he was "called." "come along," said he; "come along." why he should "call" me to come along i never knew. i had no part in the piece at that moment. but he soon gave me one. i followed, with lingering steps and slow, having no knowledge of the construction of the premises; but in a moment mathews had disappeared, and i found myself in the middle of the stage, with a crowded house in front of me. the whole audience burst into an uproar of laughter. i suppose it was the incompatibility of my appearance at that juncture which made me "take" so well; but it brought down the house, and if the curtain had fallen at that moment, i should have been a great success, and mathews would have been out of it. in the midst of my discomfiture, however, he came on to the stage by another entrance as "cool as a cucumber." he told me afterwards that he had turned the incident to good account by referring to me as "every man in his humour," or, "a bailiff in distressing circumstances!" i was visiting the country house of a respectable old solicitor, who was instructing me in a "compensation case" which was to be heard at wakefield. "i don't know, mr. hawkins," said he on sunday morning, "whether you would like to see our little church?" "no, thank you," i answered; "we can have a look at it to-morrow when we have a 'view of the premises.'" "i thought, perhaps," said mr. goodman, "you might like to attend the service." "no," said i, "not particularly; a walk under the 'broad canopy' is preferable on a beautiful morning like this to a poky little pew; and i like the singing of the birds better than the humming of a clergyman's nose. "very well," he said; "we will, if you like, take a little walk." with surprising innocence he inflicted upon me a pious fraud, leading me over fields and meadows, stiles and rustic bridges, until at last the cunning old fox brought me out along a by-path and over a plank bridge right into the village. then turning a corner near a picturesque farmhouse, he smilingly observed, "this is our church." "it's a very old one, and looks much more picturesque in the distance. shall we have a view a little farther off?" "st. mary's," said he; " is the date--" "st. mary's?" said i. "fancy! and what is the date-- ?" "it has some fine tablets, mr. hawkins, if you'd like to look in--" "i don't care for tablets," i answered; "if i go to church it is not to stare at tablets." at last my host summed up courage to say,-- "mr. hawkins, this is our little harvest festival of thanksgiving, and i should not like to be absent." "why on earth, mr. goodman," i answered, "did you not say that before? let us go in by all means. i like a good harvest as well as any christian on earth." the pew was the family pew--the _whole family pew_, and nothing but the family pew; bought with the estate, with the family estate; and was in an excellent situation for the congregation to have a fine view of mr. goodman. indeed, his cheery face could be seen by everybody in church. i must say the little edifice looked very nice, and had been adorned with the most artistic taste by the young ladies of the vicarage and the hall. mr. goodman was "the hall." there were bunches of neatly-arranged turnips and carrots, with potatoes, barley, oats, and mangel-wurzel, and almost every variety of fruit from the little village; and every girl had barley and wheat-ears in her straw hat. it was an affecting sight, calculated to make any one adore the young ladies and long for dinner. the sermon was an excellent one so far as i could pronounce an opinion, but would have been considerably improved had it been three-quarters of an hour shorter. it contained, however, the usual allusions to harvest-homes, gathering into barns, and laying up treasures; which last observation reminded mr. goodman that he had _left his purse at home_, and had come away without any money. i saw him fumbling in his pocket. now, thought i, the time has come for showing my devotion to mr. goodman. as soon, therefore, as he had whispered to me, i handed him all i had, which consisted of a five-pound note. he gratefully took it, and although about five times as much as _he_ intended to give, when the bag was handed to him in went the five-pound note. i knew my friend was chuckling as soon as we got into his family pew at the way in which he had lured me step by step, till we walked the last plank over the ditch, so i was not sorry to return good for evil and lend him my note. he stared somewhat sideways at me when the bag passed, but i bore it with fortitude. i took particular notice that the crimson bag passed along the front of our family pew at a very dilatory pace, and tarried a good deal, as if reluctant to leave it. to and fro it passed in front of my nose as if it contained something i should like to smell, and at last moved away altogether. i was glad of that, because it prevented my following the words of the hymn in my book, and, unfortunately, it was one of those harvest hymns i did not know by heart. on our way home over the meadows, where the grasshoppers were practising for the next day's sports, and were in high glee over this harvest festival, mr. goodman seemed fidgety; whether conscience-stricken for the sabbath fraud he had practised upon me or not, i could not say, but at last he asked how i liked their little service. i said it was quite large enough. "you"--he paused--"you did not, i think"--another pause--"contribute to our little gathering?" "no," i said, "but it was not my fault; i lent you all i had. the fund, however, will not suffer in the least, and you have the satisfaction of having contributed the whole of our joint pocket-money. it does not matter who the giver is so long as the fund obtains it." i then diverted his mind with a story or two. cockburn, i said, was sitting next to thesiger during a trial before campbell, chief justice, in which the judge read some french documents, and, being a scotsman, it attracted a good deal of attention. cockburn, who was a good french scholar, was much annoyed at the chief justice's pronunciation of the french language. "he is murdering it," said he--"_murdering_ it!" "no, my dear cockburn," answered thesiger, "he is not killing it, only scotching it." sir alexander was at a little shooting-party with bethell and his son, one of whom shot the gamekeeper. the father accused the son of the misadventure, while the son returned the compliment. cockburn, after some little time, asked the gamekeeper what was the real truth of the unfortunate incident--who was the gentleman who had inflicted the injury? the gamekeeper, still smarting from his wounds, and forgetting the respect due to the questioner, answered,-- "o sir alexander--d--n 'em, it was _both_!" a remark made by lord young, the scotch judge, one of the wittiest men who ever adorned the bar, and who is a bencher of the middle temple, struck me as particularly happy. there was a conversation about the admission of solicitors to the roll, and the long time it took before they were eligible to pass from their stage of pupilage to that of solicitor, amounting, i think, to seven years; upon which lord young said, "_nemo repente fuit turpissimus_." chapter xxv. compensation--nice calculations in old days--experts--lloyd and i. as my business continued to increase, it took me more and more from the ordinary _nisi prius_, and kept me perpetually employed in special matters. i had a great many compensation cases, where houses, lands, and businesses had been taken for public or company purposes. they were interesting and by no means difficult, the great difficulty being to get the true value when you had, as i have known, a hundred thousand pounds asked on one side and ten thousand offered on the other. railway companies were especially plundered in the exorbitant valuation of lands, and therefore an advocate who could check the valuers by cross-examination was sought after. juries were always liable to be imposed upon, and generally gave liberal compensation, altogether apart from the market value. experts, such as land agents and surveyors, were always in request, and indeed these experts in value caused the most extravagant amounts to be awarded. even the mean sum between highest and lowest was a monstrously unfair guide, for one old expert used to instruct his pupils that the only true principle in estimating value was to ask at least twice as much as the business or other property was worth, because, he said, the other side will be sure to try and cut you down one-half, and then probably offer to split the difference. if you accept that, you will of course get one-quarter more than you could by stating what you really wanted. no one could deal with the real value, because there was no such thing known in the compensation court. on one occasion i was travelling north in connection with one of these cases, retained, as usual, on behalf of a railway company. in my judgment the claim would have been handsomely met by an award of £ , , and that sum we were prepared to give. on my way i observed in my carriage a gentleman who was very busy in making calculations on slips of paper, and every now and again mentioning the figures at which he had arrived--repeating them to himself. when we got to a station he threw away his paper, after tearing it up, and when we started commenced again, but at every stoppage on our journey he increased his amount. after we had travelled miles, the property he was valuing had attained the handsome figure of £ , . he evidently had not observed me. i was very quiet, and well wrapped up. the next day, when he stepped into the witness-box he had not the least idea that i had been his fellow-traveller of the previous night. he was not very sharp except in the matter of figures; but his opinion, like that of all experts, was invincible. his name was bunce. "when did you view this property, mr. bunce? i understand you come from london." "i saw it this morning, sir." "did you make any calculation as to its value _before_ you saw it?" this puzzled him, and he stared at me. it was a hard stare, but i held out. he said, "no." "not when you were travelling? did it not pass through your mind when you were in the train, for instance--'i wonder, now, what that property is worth?'" "i dare say it did, sir." "but don't _dare say_ anything unless it's true." "i did, then, run it over in my mind." "and i dare say you made notes and can produce them. did you make notes?" after a while i said, "i see you did. you may as well let me have them." "i tore them up." "why? what became of the pieces?" "i threw them away." "do you remember what price you had arrived at when you reached peterborough, for instance?" the expert thought i was some one whom we never mention except when in a bad temper, and he was more and more puzzled when he found that at every stoppage i knew how much his price had increased. as the case was tried by an arbitrator and not a jury, my task was easy, arbitrators not being so likely to be befooled as the other form of tribunal. this arbitrator, especially, knew the elasticity of an expert's opinion, and therefore i was not alarmed for my client. the amount was soon arrived at by reducing the sum claimed by no less than £ , . thus vanished the visionary claim and the expert. he evidently had not been trained by the cunning old surveyor whose experience taught him to be moderate, and ask only twice as much as you ought to get. in another claim, which was no less than £ , , the jury gave £ . this was a state of things that had to be stopped, and it could only be accomplished at that time by counsel who appeared on behalf of the companies. sir henry hunt was one of the best of arbitrators, and it was difficult to deceive him. it took a clever expert to convince him that a piece of land whose actual value would be £ was worth £ , . sir henry once paid me a compliment--of course, i was not present. "hawkins," said he, "is the very best advocate of the day, and, strange to say, his initials are the same as mine. you may turn them upside down and they will still stand on their legs" (h.h.). sir henry was sometimes a witness, and as such always dangerous to the side against whom he was called, because he was a judge of value and a man of honour. one instance in which i took a somewhat novel course in demolishing a fictitious claim is, perhaps, worth while to relate, although so many years have passed since it occurred. it was so far back as the time of the old hungerford market, which the railway company was taking for their present charing cross terminus. the question was as to the value of a business for the sale of medical appliances. mr. lloyd, as usual, was for the business, while i appeared for the company. my excellent friend proceeded on the good old lines of compensation advocacy with the same comfortable routine that one plays the old family rubber of threepenny points. i occasionally finessed, however, and put my opponent off his play. he held good hands, but if i had an occasionally bad one, i sometimes managed to save the odd trick. lloyd had expatiated on the value of the situation, the highroad between waterloo station and the strand, immense traffic and grand frontage. to prove all this he called a multitude of witnesses, who kissed the same book and swore the same thing almost in the same words. but to his great surprise i did not cross-examine. lloyd was bewildered, and said i had admitted the value by not cross-examining, and he should not call any more witnesses. i then addressed the jury, and said, "a multitude of witnesses may prove anything they like, but my friend has started with an entirely erroneous view of the situation. the compensation for disturbance of a business must depend a great deal on the nature of the business. if you can carry it on elsewhere with the same facility and profit, the compensation you are entitled to is very little. i will illustrate my meaning. let us suppose that in this thoroughfare there is a good public-house--for such a business it would indeed be an excellent situation; you may easily imagine a couple of burly farmers coming up from farnham or windlesham to the cattle show, and walking over the bridge, hot and thirsty. 'hallo!' says one; 'i say, jim, here's a nice public; what d'ye say to goin' in and havin' a glass o' bitter? it's a goodish pull over this 'ere bridge." "'with all my heart,' says jim; and in they go. "there you see the advantage of being on the highroad. but now, let us see these two stalwart farmers coming along, and--instead of the handsome public and the bitter ale there is this shop, where they sell medical arrangements--can you imagine one of them saying to the other, 'i say, jim, here's a very nice medical shop; what d'ye say to going in and having a truss?'" the argument considerably reduced the compensation, but what it lacked in money the claimant got in laughter. sometimes i led a witness who was an expert valuer for a claimant to such a gross exaggeration of the value of a business as to stamp the claim with fraud, and so destroy his evidence altogether. sir henry hunt used to nod with apparent approval at every piece of evidence which showed any kind of exaggeration, but every nod was worth, as a rule, a handsome reduction to the other side. i shall never forget an attorney's face who, having been offered £ , for a property, stood out for £ , . it was a claim by a poulterers' company for eight houses that were taken by a railway company. i relied entirely on my speech, as i often did, because the threadbare cross-examinations were almost, by this time, things of course, as were the figures themselves mere results of true calculations on false bases. this attorney, who had, perhaps, never had a compensation case before, was quite a great man, and took the arbitrator's assenting nods as so much cash down. so encouraged, indeed, was he that he became almost impudent to me, and gave me no little annoyance by his impertinent asides. at last i looked at him good-humouredly, and politely requested him, as though he were the court itself, to suspend his judgment while i had the honour of addressing the arbitrator for twenty minutes, "at the end of which time i promise to make you, sir," said i, "the most miserable man in existence." i was supported in this appeal by the arbitrator, who hoped he would not interrupt mr. hawkins. as i proceeded the attorney fidgeted, puffed out his cheeks, blew out his breath, twirled his thumbs as i twirled his figures, and grated his teeth as he looked at me sideways, while i concluded a little peroration i had got up for him, which was merely to this effect, that if railway companies yielded to such extortionate demands as were made by this attorney on behalf of the poulterers' company, they would not leave their shareholders a feather to fly with. the attorney looked very much like moulting himself, and the end of it was that he got _two thousand pounds_ less than we had offered him in the morning, and consequently had to pay all the costs. as i have stated, john horatio lloyd was my principal opponent in these great public works cases, and i remember him with every feeling of respect. he was an advocate whom no opponent could treat lightly, and was uniformly kind and agreeable. of course i had a very large experience in those times--i suppose, without vanity, i may say the very largest. i was retained to assess compensation for the immense blocks of buildings acquired for the space now occupied by the law courts. in the very early cases the law. officers of the crown were concerned, but after that the whole of the business was entrusted to my care, although for reasons best known to themselves the commissioners declined to send me a general retainer, which would have been one small sum for the whole, but gave instead a special retainer on every case. if my memory serves me, on one occasion i had ninety-four of these special retainers delivered at my chambers. this was in consequence of their refusing to retain me generally for the whole, which would have been a nominal fee of five guineas. chapter xxvi. election petitions. another class of work which gave me much pleasure and interest was that of election petitions. these came in such abundance that i had to put on, as i thought, a prohibitory fee, which in reality increased the volume of my labour. one day baron martin asked me if i was coming to such and such an election petition. "no," i answered, "no; i have put a prohibitory fee on my services; i can't be bothered with election petitions." "how much have you put on?" "five hundred guineas, and two hundred a day." the baron laughed heartily. "a prohibitory fee! they must have you, hawkins--they must have you. put on what you like; make it high enough, and they'll have you all the more." and i did. it turned out a very lucrative branch of my business, and my electioneering expenses were a good investment. my experience at barnstaple, to be told hereafter, repaid the outlay, and no feature of an election ever came before me but i recognized a family likeness. amongst the earliest was that of w.h. smith, who had been returned for westminster. the petitioner endeavoured to unseat him on the ground of bribery, alleged to have been committed in paying large sums of money for exhibiting placards on behalf of the candidate. it was tried before baron martin. about the payments there was no element of extravagance, but there were undoubtedly many cases of payment, and these were alleged to be illegal. ballantine was my junior. one of the curious matters in the case was that these payments had been principally made by, or under, the advice of my old friend, whom i cannot mention too often, the hon. robert grimston. ballantine, as i thought, most injudiciously advised me not to call "that old fool;" but believing in grimston, and having charge of the case, i resolved to call him. baron martin knew grimston as well as i did, and believed in him as much. "who is this?" asked the judge. "another bill-sticker, my lord." grimston gave his evidence, and was severely cross-examined by my friend, j. fitzjames stephen. he fully and satisfactorily explained every one of the questioned items, evidently to the satisfaction of martin, who dismissed the petition, and thus mr. smith retained his seat. the learned judge said, in giving judgment, that without grimston's evidence the seat would have been in great danger, but that he had put an innocent colour on the whole case, and that, knowing him to be an honourable man and incapable of saying anything but the truth, he had implicitly trusted to every word he spoke. mr. smith, whom i met some days after, said he was perfectly assured that if i had not had the conduct of the case, and grimston had not been called, his seat would have been lost. in the petition against sir george elliot for durham there was nothing of any importance in the case, except that sir george gave a very interesting history of his life. he had been a poor boy who had worked in the cutting of the pit, lying on his back and picking out from the roof overhead the coal which was shovelled into the truck. from this humble position literally and socially he had proceeded, first to his feet, and then step by step, until, from one grade to another, he had amassed a large fortune, and sufficient income to enable him to incur, not only the expenses of an election and a seat in parliament, but also those of a bitterly hostile election petition, enormously extravagant in every way. i succeeded in winning his case, and never was more proud of a victory. it had lasted many days. there is one matter almost of a historical character, which i mention in order to do all the justice in my power to a man who, although deserving of reprobation, is also entitled to admiration for the chivalry of his true nature. i speak of it with some hesitation, and therefore without the name. those who are interested in his memory will know to whom i allude, and possibly be grateful for the tribute to his character, however much it may have been sullied by his temporary absence of manly discretion. he was charged with assaulting a young lady in a railway train between aldershot and waterloo. there was much of the melodramatic in the incidents, and much of the righteous indignation of the public before trial. there was judgment and condemnation in every virtuous mind. the assault alleged was doubtless of a most serious character, if proved. i say nothing of what might have been proved or not proved; but, speaking as an advocate, i will not hesitate to affirm that cross-examination may sometimes save one person's character without in the least affecting that of another. but this was not to be. whatever line of defence my experience might have suggested, i was debarred by his express command from putting a single question. i say to his honour that, as a gentleman and a british officer, he preferred to take to himself the ruin of his own character, the forfeiture of his commission in the army, the loss of social status, and _all_ that could make life worth having, to casting even a doubt on the lady's veracity in the witness-box. my instructions crippled me, but i obeyed my client, of course, implicitly in the letter and the spirit, even though to some extent he may have entailed upon himself more ignominy and greater severity of punishment than i felt he deserved. he died in egypt, never having been reinstated in the british army. i knew but little of him until this catastrophe occurred; but the manliness of his defence showed him to be naturally a man of honour, who, having been guilty of serious misconduct, did all he could to amend the wrong he had done; and so he won my sympathy in his sad misfortune and misery. in the days when burglary was punished with death, there was very seldom any remission, i was in court one day at guildford, when a respectably-dressed man in a velveteen suit of a yellowy green colour and pearl buttons came up to me. he looked like one of lord onslow's gamekeepers. i knew nothing of him, but seemed to recognize his features as those of one i had seen before. when he came in front of my seat he grinned with immense satisfaction, and said,-- "can i get you anything, mr. orkins?" i could not understand the man's meaning. "no, thank you," i said. "what do you mean?" "don't you recollect, sir, you defended me at kingston for a burglary charge, and got me off., mr. orkins, in flyin' colours?" i recollected. he seemed to have the flying colours on his lips. "very well," i said; "i hope you will never want defending again." "no, sir; never." "that's right." "would a _teapot_ be of any use to you, mr. orkins?" "a teapot!" "yes, sir, or a few silver spoons--anything you like to name, mr. orkins." i begged him to leave the court. "mr. orkins, i will; but i am grateful for your gettin' me off that job, and if a piece o' plate will be any good, i'll guarantee it's good old family stuff as'll fetch you a lot o' money some day." i again told him to go, and, disappointed at my not accepting things of greater value, he said,-- "sir, will a sack o' taters be of any service to you?" this sort of gratitude was not uncommon in those days. i told the story to mr. justice wightman, and he said,-- "oh, that's nothing to what happened to the common serjeant of london. he had sent to him once a christmas hamper containing a hare, a brace and a half of pheasants, three ducks, and a couple of fowls, which _he accepted_." i sometimes won a jury over by a little good-natured banter, and often annoyed chief justice campbell when i woke him up with laughter. and yet he liked me, for although often annoyed, he was never really angry. he used to crouch his head down over his two forearms and go to sleep, or pretend to, by way of showing it did not matter what i said to the jury. i dare say it was disrespectful, but i could not help on these occasions quietly pointing across my shoulder at him with my thumb, and that was enough. the jury roared, and campbell looked up,-- "what's the joke, mr. hawkins?" "nothing, my lord; i was only saying i was quite sure your lordship would tell the jury exactly what i was saying." "go on, mr. hawkins--" then he turned to his clerk and said,-- "i shall catch him one of these days. confine yourself to the issue, mr. hawkins." "if your lordship pleases," said i, and went on. the eccentricities of judges would form a laughable chapter. some of them were overwhelmed with the importance of their position; none were ever modest enough to perceive their own small individuality amidst their judicial environments; and this thought reminds me of an occurrence at liverpool assizes, when huddlestone and manisty, the two judges on circuit, dined as usual with the lord mayor. the queen's health was proposed, of course, and manisty, with his innate good breeding, stood up to drink it, whereupon his august brother judge pulled him violently by his sleeve, saying, "sit down, manisty, you damned fool! _we_ are the queen!" i was addressing a jury for the plaintiff in a breach of promise case, and as the defendant had not appeared in the witness-box, i inadvertently called attention to an elderly well-dressed gentleman in blue frock-coat and brass buttons--a man, apparently, of good position. the jury looked at him and then at one another as i said how shameful it was for a gentleman to brazen it out in the way the defendant did--ashamed to go into the witness-box, but not ashamed to sit in court. here the gentleman rose in a great rage amidst the laughter of the audience, in which even the ushers and javelin-men joined, to say nothing of the judge himself, and shouted with angry vociferation,-- "mr. hawkins, i am _not_ the defendant in this case, sir ----" "i am very sorry for you," i replied; "but no one said you were." there was another outburst, and the poor gentleman gesticulated, if possible, more vehemently than before. "i am not the def--" "nobody would have supposed you were, sir, if you had not taken so much trouble to deny it. the jury, however, will now judge of it." "i am a married man, sir." "so much the worse," said i. chapter xxvii. my candidature for barnstaple. although the house of commons dislikes lawyers, constituencies love them. the enterprising patriots of the long robe are everywhere sought after, provided they possess, with all their other qualifications, the one thing needful, and possessing which, all others may be dispensed with. barnstaple was no exception to the rule. it had a character for conspicuous discernment, and, like the unseen eagle in the sky, could pick out at any distance the object of its desire. eminent, respectable, and rich must be the qualification of any candidate who sought its suffrages--the last, at all events, being indispensable. up to this time i had not felt those patriotic yearnings which are manifested so early in the legal heart. i was never a political adventurer; i had no eye on parliament merely as a stepping-stone to a judgeship; and probably, but for the events i am about to describe, i should never have been heard of as a politician at all. there were so many candidates in the profession to whom time was no object that i left this political hunting-ground entirely to them. in i was waited upon at westminster by a very influential deputation from the barnstaple electors--honest-looking electors as any candidate could wish to see--bringing with them a requisition signed by almost innumerable independent electors, and stating that there were a great many more of the same respectable class who would have signed had time been permitted. further signatures were, however, to be forwarded. it was urged by the deputation that i should make my appearance at barnstaple at the earliest possible date, as no time was to be lost, and they were most anxious to hear my views, especially upon topics that they knew more about than i, which is generally the case, i am told, in most constituencies. i asked when they thought i ought to put in an appearance. "within a week at latest," said the leading spirit of the deputation. "within a week at latest," repeated all the deputation in chorus." because," said the leading personage, "there is already a gentleman of the name of cave" (it should have been pronounced as two syllables, so as to afford me some sort of warning of the danger i was confronting) "busily canvassing in all directions for the liberal party, and mr. howell gwynne and sir george stukely will be the conservative candidates. however, it would be a certain seat if i would do them the honour of coming forward. there would be little trouble, and it would almost be a walk-over." a walk-over was very nice, and the tantalizing hopes this deputation inspired me with overcame my great reluctance to enter the field of politics; and in that ill-advised moment i promised to allow myself to be nominated. it was arranged that i should make my appearance by a specified afternoon train on a particular day in the week (apparently to be set apart as a public holiday), so that i had little time for preparation. by the next day's post i received a kind of official communication from "our committee," stating that a very substantial deputation from the general body would have the honour to meet me at the station, and accompany me to the committee-rooms for the purpose of introduction. down, therefore, i went by the great western line, and in due time arrived at my destination, as i thought. i found, instead of the "influential body of gentlemen" who were to have the honour of conducting me to the headquarters of the liberal party, there was only a small portion of it, almost too insignificant to admit of counting. but he was an important personage in uniform, and dressed somewhat like a commissionaire. after much salutation and deferential hemming and stammering, he said i had better proceed to a _little station only a few miles farther on and dine_, "and if so be i'd do that, they would meet me in the evening." not being a professional politician, nor greatly ambitious of its honours, i was somewhat disconcerted at such extraordinary conduct on the part of my committee, and would have returned to town, but that the train was going the wrong way, and by the time i reached the little station i had argued the matter out, as i thought. it _might_ be a measure of precaution, in a constituency so respectable as barnstaple, to prevent the least suspicion of _treating_ or corrupt influence. had i dined at barnstaple it might have been suggested that some one dined with me or drank my health. whatever it was, the revelation was not yet. i was to return "as soon as i had dined." everything was to be ready for my reception. all these instructions i obeyed with the greatest loyalty, and returned at an early hour in the evening. but if i was disappointed at my first reception, how was i elated by the second! all was made up for by good feeling and enthusiasm. we were evidently all brothers fighting for the sacred cause, but what the cause was i had not been informed up to this time. at the station was a local band of music waiting to receive me, and to strike up the inspiring air, "see the conquering hero comes;" but, unfortunately, the band consisted only of a drum, of such dimensions that i thought it must have been built for the occasion, and a clarionet. before the band struck up, however, i was greeted with such enthusiastic outbursts that they might have brought tears into the eyes of any one less firm than myself. "orkins for ever!" roared the multitude. it almost stunned me. never could i have dreamt my popularity would be so great. "orkins for ever!" again and again they repeated, each volley, if possible, louder than before. "bravo, orkins! let 'em 'ave it, orkins! don't spare 'em." i wish i had known what this meant. i must say they did all that mortals could do with their mouths to honour their future member. hogarth's "march to finchley" was outdone by that march to the barnstaple town hall. an enormous body of electors, "free and independent" stamped on their faces as well as their hands, was gathered there, and it was a long time before we could get anywhere near the door. again and again the air was rent with the cries for "orkins," and it was perfectly useless for the police to attempt to clear the way. they had me as if on show, and it was only by the most wonderful perseverance and good luck that i found myself going head first along the corridor leading to the hall itself. when i appeared on the platform, it seemed as if barnstaple had never seen such a man; they were mad with joy, and all wanted to shake hands with me at once. i dodged a good many, and by dint of waving his arms like a semaphore the chairman succeeded, not in restoring peace, but in moderating the noise. i now had an opportunity of using my eyes, and there before me in one of the front seats was the redoubtable cave--the great canvassing cave--who instantly rose and gave me the most cordial welcome, trusted i was to be his future colleague in the house, and was most generous in his expressions of admiration for the people of barnstaple, especially the voting portion of them, and hoped i should have a very pleasant time and never forget dear old barnstaple. i said i was not likely to--nor am i. of course i had to address the assembled electors first after the introduction by the chairman, who, taking a long time to inform us what the electors _wanted_, i made up my mind what to say in order to convince them that they should have it. i gave them hopes of a great deal of legal reform and reduction of punishments, for i thought that would suit most of them best, and then gladly assented to a satisfactory adjustment of all local requirements and improvements, as well as a determined redress of grievances which should on no account be longer delayed. ("orkins for ever!") then cave stood up--an imposing man, with a good deal of presence and shirt-collar--who invited any man--indeed, _challenged_ anybody--in that hall to question him on any subject whatever. the challenge was accepted, and up stood one of the rank and file of the electors--no doubt sent by the howell gwynne party--and with a voice that showed at least he meant to be heard, said,-- "mr. cave, first and foremost of all, i should like to know _how your missus is to-day_?" it was scarcely a political or public question, but nobody objected, and everybody roared with laughter, because it seemed at all political meetings cave had started the fashion, which has been adopted by many candidates since that time, of referring _to his wife_! cave always began by saying he could never go through this ordeal without the help and sympathy of his dear wife--his support and joy--at whose bidding and in pursuit of whose dreams he had come forward to win a seat in their uncorruptible borough, and to represent them--the most coveted honour of his life--in the house of commons. of course this oratory, having a religious flavour, took with a very large body of the barnstaple electors, and was always received with cheers as an encouragement to domestic felicity and faithfulness to connubial ties. when this gentleman put the question, cave answered as though it was asked in real earnest, and was cheered to the echo, not merely for his domestic felicity, but his cool contempt for any man who could so far forget connubial bliss as to sneer at it. for a few days all went tolerably well, and then i was told that a very different kind of influence prevailed in the borough than that of religion or political morality, and that it would be perfectly hopeless to expect to win the seat unless i was prepared to purchase the large majority of electors; indeed, that i must buy almost every voter. (that's what they meant by "give it 'em, orkins! let 'em 'ave it!") this i refused to believe; but it was said they were such free and independent electors that they would vote for _either_ party, and you could not be sure of them until the last moment; in fact, _if i would win i must bribe_! to say nothing of all sorts of subscriptions to cricket clubs and blanket clubs, as well as friendly societies of all kinds. i declined to accept these warnings, and looked upon it as some kind of political dodge got up by the other side. i resolved to win by playing the game, and made up my mind to go to the poll on the political questions which were agitating the public mind, as i was informed, by a simple honest candidature, thinking that in political as in every other warfare honesty is the best policy. on that noble maxim i entered into the contest, believing in barnstaple, and feeling confident i should represent it in parliament. to indulge in bribery of any sort would, i knew, be fatal to my own interests even if i had not been actuated by any higher motive. i placed myself, therefore, in the hands of my friend and principal agent, mr. kingston, as well as the other agents of the party. we did not long, however, remain true to ourselves. there was a hitch somewhere which soon developed into a split; and it was certain some of us must go to the wall. i could not, however, understand the reason of it; we professed the same politics, the same "cause," the same battle-cry, the same enemies. but, whatever it was, we were so much divided that my chances of heading the poll were diminishing. i had been cheered to the echo night after night and all day long, so that there was enough shouting to make a prime minister; my horses had time after time been taken from my carriage, and cheering voters drew me along. these unmistakable signs of popular devotion to my interests had been most encouraging; and as they shouted themselves hoarse for me, i talked myself hoarse for them. we had a mutual hoarseness for each other. everything looked like success; everything _sounded_ like success; and night after night out came drum and clarionet to do their duty manfully in drumming me to my hotel. it had been a remarkable success; everybody said so. most of them declared solemnly they had never seen anything like it. they pronounced it a record popularity. i thought it was because the good people had selected me as their candidate on independent and purity of election principles. this explanation gave them great joy, and they cheered with extra enthusiasm for their own virtue. judge, then, my surprise a short while after, when, notwithstanding the firm principles upon which we had proceeded, and by which my popularity was secured, i began to perceive that _money was the only thing they wanted_! their uncorruptible nature yielded, alas! to the lowering influence of that deity. it was at first a little mysterious why they should have postponed their demands--secret and silent--until almost the last moment; but the fact is, a large section of my party were dissatisfied with the voluntary nature of their services; they declined to work for nothing, and having shown me that the prize--that is, the seat--was mine, they determined to let me know it must be paid for. a large number of my voters would do nothing; they kept their hands in their pockets because they could not get them into mine. this was no longer a secret, but on the eve of the election was boldly put forward as a demand, and i was plainly told that £ distributed in small sums would make my election sure. as, however, in no circumstances would i stoop to their offer, this demand did not in the least influence me--i never wavered in my resolution, and refused to give a farthing. furthermore, showing the web in which they sought to entangle me, the same voice that suggested the £ also informed me that i was closely watched by a couple of detectives set on by the other side. i was well aware that the "other side" had given five-pound notes for votes, but i could neither follow the example nor use the information, as it was told me "in the strictest confidence." i was therefore powerless, and felt we were drifting asunder more and more. at last came the polling day, and a happy relief from an unpleasant situation it certainly was. a fine bright morning ushered in an exciting day. there was a great inrush of voters at the polling-booth, friendly votes, if i may call them so--votes, i mean to say, of honest supporters; these were my acquaintances made during my sojourn at barnstaple; others came, a few for cave as well as myself. cave did not seem to enjoy the popularity that i had achieved. still, he got a few votes. now came an exciting scene. about midday, the working man's dinner hour, the tide began to turn, for the whole body of _bribed_ voters were released from work. my majority quickly dwindled, and at length disappeared, until i was in a very hopeless minority. everywhere it was "stukely for ever!" some cried, "stukely and free beer!" stukely, who till now had hardly been anybody, and had not talked himself hoarse in their interests as i had, was the great object of their admiration and their hopes. the consequence of this sudden development of stukely's popularity was that cave united his destiny with the new favourite, and such an involution of parties took place that "stukely and cave" joined hand in hand and heart to heart, while poor howell gwynne and myself were abandoned as useless candidates. at one o'clock it was clear that i must be defeated by a large majority. the cave party then approached me with the modest request that, as it was quite clear that i could not be returned, would i mind attending the polling places and give my support to cave? this piece of unparalleled impudence i declined to accede to, and did nothing. the election was over so far as i was interested in its result; but i was determined to have a parting word with the electors before leaving the town. i was mortified at the unblushing treachery and deception of my supporters. i was next asked what i proposed to do. it was their object to get me out of the town as soon as possible, for if unsuccessful as a candidate, i might be troublesome in other ways. such people are not without a sense of fear, if they have no feeling of shame. i said i should do nothing but take a stroll by the river, the day being fine, and come back when the poll was declared and make them a little speech. the little speech was exactly what they did not want, so in the most friendly manner they informed me that a fast train would leave barnstaple at a certain time, and that probably i would like to catch that, as no doubt i wished to be in town as early as possible to attend to my numerous engagements. if they had chartered the train themselves they could not have shown greater consideration for my interests. but i informed them that i should stop and address the electors, and with this statement they turned sulkily away. at the appointed hour for the declaration of the poll i was on the hustings--well up there, although the lowest on the poll. stukely and cave were first and second, howell gwynne and myself third and _last_! when my turn came to address the multitude, i spoke in no measured terms as to the conduct of the election, which i denounced as having been won by the most scandalous bribery and corruption. all who were present as unbiassed spectators were sorry, and many of them expressed a wish that i would return on a future day. "not," said i, "until the place has been purged of the foul corruption with which it is tainted." i had resolved to leave by the mail train, and was actually accompanied to the station by a crowd of some , people, including the rector, or vicar of the parish, who gave me godspeed on my journey home. this kind and sincere expression of goodwill and sympathy was worth all the boisterous cheers with which i had been received. on the platform at the railway station i had to make another little speech, and then i took my seat, not for barnstaple, but london. as the train drew out of the station, the people clung to the carriage like bees, and although i had not even honeyed words to give them, they gave me a "send-off" with vociferous cheers and the most cordial good wishes. thus i bade good-bye to barnstaple, never to return or be returned, and i can only say of that enlightened and independent constituency that, while seeking the interests of their country, they never neglected their own. i need not add that i learnt a great deal in that election which was of the greatest importance in the conduct of the parliamentary petitions which were showered upon me. before i accepted the candidature of barnstaple, a friend of mine said he had been making inquiries as to how the little borough of totnes could be won, and that the lowest figure required as an instalment to commence with was £ , . after this i had no more to do with electioneering in the sense of being a candidate, but a good deal to do with it in every other. chapter xxviii. the tichborne case. [the greatest of all chapters in the life of mr. hawkins was the prosecution of the impostor arthur orton for perjury, and yet the story of the tichborne case is one of the simplest and most romantic. the heir to the tichborne baronetcy and estates was shipwrecked while on board the _bella_ and drowned in . in a butcher at wagga wagga in australia assumed the title and claimed the estates. but the story is not related in these reminiscences on account of its romantic incidents, but as an incident in the life of lord brampton. it is so great that there is nothing in the annals of our ordinary courts of justice comparable with it, either in its magnitude or its advocacy. i speak particularly of the trial for perjury, in which mr. hawkins led for the prosecution, and not of the preceding trial, in which he was junior to sir john coleridge. it is impossible to give more than the _points_ of this strange story as they were made, and the real _facts_ as they were elicited in cross-examination and pieced together in his opening speech and his reply in the case for the crown. what rendered the task the more difficult was that his predecessors had so bungled the cross-examination in many ways that they not only had not elicited what they might have done, but actually, by many questions, furnished information to the claimant which enabled him to carry on his imposture.] the tichborne trials demand a few words by way of introduction, for although there were two trials, they were of a different character, the first being an ordinary action of ejectment in which the claimant sought to dispossess the youthful heir, whose title he had already assumed, under circumstances of the most extraordinary nature. the action of ejectment was tried before chief justice bovill at the common pleas, westminster. ballantine and giffard (now lord halsbury) led for the plaintiff, the butcher, while on behalf of the trustees of the estate (that is, the real heir) were the solicitor-general coleridge, myself, bowen (afterwards lord bowen), and chapman barber, an _equity_ counsel. i must explain how it was that i, having been retained to lead coleridge, was afterwards compelled to be led by him; and it is an interesting event in the history of the bar as well as of the judicial bench. the action was really a western circuit case, although the venue was laid in london. coleridge led that circuit and was retained. i belonged to the home circuit, and had no idea of being engaged at all for that side. i had been retained for the claimant, but the solicitor, with great kindness, withdrew his retainer at my request. i was brought into the case for the purpose of leading, and no other; but by the appointment of coleridge to the solicitor-generalship in , i was displaced, and coleridge ultimately led. his further elevation happened in this way: sir robert collier was attorney-general, and it was desired to give him a high appointment which at that moment was vacant, and could only be filled by a judge of the high court. collier was not a judge, and therefore was not eligible for the post. the question was how to make him eligible. the prime minister of the day was not to be baffled by a mere technicality, and he could soon make the attorney-general a judge of the high court if that was a condition precedent. there was immediately a vacancy on the bench; collier was appointed to the judgeship, and in three days had acquired all the experience that the act of parliament anticipated as necessary for the higher appointment in the privy council. instead of leading, therefore, in the case before chief justice bovill, i had to perform whatever duties coleridge assigned to me. my commanding position was gone, and it was no longer presumable that i should be entrusted with the cross-examination of the plaintiff. i was bound to obey orders and cross-examine whomsoever i was allowed to. [the one thing mr. hawkins was retained for was the cross-examination of the plaintiff. lord chief justice cockburn said, "i would have given a thousand pounds to cross-examine him." it would have been an excellent investment of the tichborne family to have given hawkins ten thousand pounds to do so, for i am sure there would have been an end of the case as soon as he got to wapping. coleridge acknowledged that the claimant cross-examined him instead of his cross-examining the claimant. when that shrewd and cunning impostor was asked, "would you be surprised to hear this or that?" "no," said he, "i should be surprised at nothing after this long time and the troubles i have been through; but, now that you call my attention to it, i remember it all perfectly well." coleridge said: "i am leader by an accident." "yes," said hawkins, "a colliery accident."] i had also been retained by the trustees of the doughty estate. lady doughty was an aunt of sir roger tichborne, and it was her daughter kate whom the heir desired to marry. had the claimant succeeded in the first case, he would have brought an action against her also. no copy of the proceedings had been supplied to me, and i was informed that at this preliminary cross-examination they would not require my assistance; that their learned chancery barrister was merely going to cross-examine the claimant on his affidavits--a matter of small consequence. so it was in one way, but of immeasurable importance in many other ways. but they said _i might like to hear the cross-examination as a matter of curiosity_. i did. the claimant had it all his own way. i was powerless to lend any assistance; but had i been instructed, i am perfectly sure i could then and there have extinguished the case, for the claimant at that time knew absolutely nothing of the life and history of roger tichborne. so the case proceeded, with costs piled on costs; information picked up, especially by means of interminable preliminary proceedings, until the impostor was left master of the situation, to the gratification of fools and the hopes of fanatics. i was, however, allowed in the trial to cross-examine some witnesses. amongst them was a man of the name of baigent, the historian of the family, who knew more of the tichbornes than they knew of themselves. the cross-examination of baigent, which did more than anything to destroy the claimant's case, occupied ten days. he was the real roger's old friend, and knew him up to the time of his leaving england never to return. i drew from him the confession that he did not believe he was alive, but that he had encouraged the dowager lady tichborne to believe that the claimant was her son; and that her garden was lighted night after night with chinese lanterns in expectation of his coming. admissions were also obtained that when he saw the claimant at alresford station neither knew the other, although baigent had never altered in the least, as he alleged. there was another witness allotted to me, and that was carter, an old servant of roger whilst he was in the carabineers. this man supplied the plaintiff with information as to what occurred in the regiment while roger belonged to it; but he only knew what was known to the whole regiment. he did _not_ know private matters which took place at the officers' mess, and it was upon these that my cross-examination showed the claimant to be an impostor. i "had him there." as parry and i were sitting one morning waiting for the judges, i remarked on the subject of the counsel chosen for the prosecution: "suppose, parry, you and i had been solicitor and attorney-general, in the circumstances what should we have done?" "plunged the country into a bloody war before now, i dare say," said parry, elevating his eyebrows and wig at the same time. i confess when i undertook the responsibility of this great trial i was not aware of the immense labour and responsibility it would involve; nor do i believe any one had the smallest notion of the magnitude of the task. instead of the work diminishing as we proceeded, it increased day by day, and week by week; one set of witnesses entailed the calling of another set. the case grew in difficulty and extent. it seemed absolutely endless and hopeless. within a few weeks of the start, a necessity arose for procuring the testimony of a witness from australia, a matter of months; and the trial being a criminal one, the defendant was entitled to have the case for the prosecution concluded within a reasonable time. if we had no evidence, it was to his advantage, and we had no right to detain him for a year while we were trying to obtain it. however, the australian evidence came in time. numbers of witnesses had to be called who not only were not in our brief, but were never dreamed of. for instance, there was the danish perjurer louie, who swore he picked up the defendant at sea when the _bella_ went down. instead of this man going away after he had given his evidence, he remained until two gentlemen from the city, seeing his portrait in the stereoscopic company's window in regent street, identified him as a dishonest servant of theirs, who was undergoing a sentence of penal servitude at the time he swore he picked roger up. he received five years' penal servitude for his evidence. i had pledged myself to the task, which extended over many months more than i ever anticipated. at every sacrifice, however, i was bound to devote myself to the case, and did so, although i had to relinquish a very large portion of my professional income. what made things worse, there was not only no effort made to curtail the business, but advantage was taken of every circumstance to prolong it. the longer it was dragged out the better chance there was of an acquittal. had a juryman died after months of the trial had passed, the government must have abandoned the prosecution. it would have been impossible to commence again. this was the last hope of the defence. [the trial before bovill ended at last, as it ought to have done months before, in a verdict for the defendants and the order for the prosecution of the claimant for perjury. it was this prosecution that occupied the attention of the court and of the world for days, extending over portions of two years. there is no doubt that coleridge would a second time have deprived the country of mr. hawkins's services, but higher influences than his prevailed, and the distinguished counsel was appointed to lead for the crown, with mr. serjeant parry as his leading junior. it is not too much to say that no one knew the case so well as mr. hawkins, and none could have done it so well. bowen and mathews were also his juniors. the whole case, from the commencement of the chancery proceedings down to the commencement of this trial, had been a comedy of blunders. the very claim was an absurdity, every step in the great fraud was an absurdity, and every proceeding had some ridiculous absurdity to accompany it. it was not until the cross-examination of baigent by mr. hawkins that the undoubted truth began to appear. "you are the first," said baron bramwell, "who has let daylight into the case." it will be seen presently what the simple story was which the learned counsel at last evolved from the lies and half-truths which had for so many years imposed upon a great number even of the intelligent and educated classes of the community. and i would observe that until nearly the end of the trial the case was never safe or quite free from doubt; it was only what was elicited by mr. hawkins that made it so. no wonder the advocate said to giffard, who was opposed to him on the first trial: "if you and i had been together in that case in the first instance, we should have won it for the claimant." being on the other side, this is how the case stood when he had completed it:-- the real heir to the family was a fairly well-formed, slender youth of medium height. the personator of this youth was a man an inch and a half or two inches taller, and weighing five-and-twenty stone. his hands were a great deal larger than those of roger, and at least an inch longer; his feet were an inch and a half longer. he was broader, deeper, thicker, and altogether of a different build. the lobes of his ears, instead of being pendent like roger's, adhered to his cheeks. but he was not more unlike in physical outline than in mental endowment, taste, character, pursuits, and sentiment, in manners and habits, in culture and education, connection and recollection. roger had been educated at stonyhurst, with the education of a gentleman; this man had never had any education at all. roger had moved in the best english society; this man amongst slaughtermen, bushrangers, thieves, and highwaymen. roger had been engaged to a young lady, his cousin, kate doughty; this man had been engaged to a young woman of wapping, of the name of mary ann loader, a respectable girl in his own sphere of life. roger's engagement to this young lady, his cousin, was disapproved of by the tichborne family, and was the cause of his leaving england. but before he went he gave her a writing, and deposited a copy of it with mr. gosford, the legal adviser of the family. this document was one of the most important incidents in the history of the case, and upon it, if the cross-examination had been conducted by mr. hawkins in chancery, the case would have been crushed at the outset. it is not my task to show how, but to state what it all came to when the learned counsel left it to the jury to say whether the claimant _was_ the roger tichborne he had sworn himself to be, or whether he was arthur orton, the butcher of wapping, whom he swore he was not. this document forms the subject of the "sealed packet" left with mr. gosford, and contained in effect these words: "if god spares me to return and marry my beloved kate within a year, i promise to build a church and dedicate it to my patron saint." till his cross-examination in chancery he had never heard of this packet, and when he was informed of it his solicitor naturally demanded a copy. gosford had destroyed the original, and of course there was no end of capital out of it; a concocted original was made, which was to the effect that this gentleman, "so like roger," _had seduced his cousin_, and that if she proved to be _enceinte_, gosford was to take care of her. luckily "kate doughty" had her original preserved with sacred affection. but such was the memory of this man's early life, contrasted with what _would_ have been the memory of sir roger tichborne. he did not recollect being "at stonyhurst, but said positively he was at winchester, where certainly roger never was. he did not remember his mother's christian names, and could not write his own. he came to england to see his mother, and then would not go to her; she went to see him, and he got on to the bed and turned his face to the wall. she did not see his face, but recognized him by his ears, because they were like his uncle's, then ordered the servant to undo his braces for fear he should choke. such a piece as this on the stage would not have lasted one night; in real life it had a run for many years. but then there never was a rogue that some fool would not believe in. how else was it possible that millions believed in this man, who had forgotten the religion he had been brought up in, and was married by a wesleyan minister at a wesleyan church, he being, as his mother informed him, a strict roman catholic from his birth? however, he did his best to reform his error by getting married again by a roman priest, although he made another blunder, and forgetting he was sir roger tichborne, married as arthur orton, the son of the wapping butcher. when his dear mother reminded him of his being a catholic, he wrote and thanked her for the information, and hoped the blessed maria would take care of her for evermore, little dreaming that the "black maria" would one day take particularly good care of himself. so that he forgot the place of his birth, the seat of his ancestors, the friends of his youth, the face, features, and form of his mother, his education and religion, his brother officers in the regiment, the regiment itself, and the position he occupied, thinking he had been a private for fifteen days instead of a painstaking, studious, diligent officer, who was beloved by his fellows. he had forgotten all his neighbours, servants, dependants, as well as the family solicitor who made his will and was appointed his executor. he forgot his life in paris, the village church of his ancestral seat--nay, the ancestral seat itself--and the very road that led to it. he forgot his old friend and historian, who swore he had never altered the least in appearance since roger left--historian and picture-cleaner to the family. in short, there was not one single thing in the life of roger that he knew. he forgot what any but a born fool would remember while he was in poverty and bankruptcy for a couple of hundred pounds; the real roger had written home on hearing of the death of his uncle, from whom he derived his title and estates, saying, "pray go to messrs. glyn's and exchange my letter of credit for £ , for three years for one for £ , ." imagine a man forgetting he had £ , a year and an estate in england worth £ , , and earning his bread in a slaughter-house and in the bush, borrowing money from a poor woman and running away with it. but now another singular thing stamps this fraudulent impostor who makes so many believe in him. he, alleged by his supporters to be sir roger tichborne, recollected all about a place that he had never been to; people he had never heard of, far less seen; events that he could _not_ know and which never happened to him, but did happen to arthur orton. he knew wapping well--every inch of it; old charles orton, the father of arthur; charles orton the brother, the sisters, the people who kept this shop and that; so that when on his return to england he went to the wapping seat of his ancestors instead of ashford, he asked all about them, and reminded them so faithfully of the little events of arthur's boyhood, and resembled that person so much in the face, that they said, "why, you are arthur orton yourself!" true, he paid some of them to swear he was not, but the impression remained. mr. hawkins told the jury how he picked up his second-hand knowledge of the things he spoke about concerning the tichbornes, for it was necessary to be able to answer a good many questions wherever he went, especially when he went into the witness-box. there was an old black servant, quite black, who had been a valet in the tichborne family. his name was bogle; and the claimant was told by the poor old dowager that if he could meet with him, bogle could tell him a good many things about himself. bogle was an excellent diplomatist, and no sooner heard from lady tichborne that her son roger was in australia than the two began to look for one another, the one as black inside as the other was out. bogle announced that he was the man before he saw him, on the mother's recommendation, and became and was to the end one of his principal supporters--so much so that "old bogle" spread the claimant's knowledge of the tichbornes abroad, and, like everybody else, believed in him because he knew so much which he could not have known unless he had been the veritable roger, all which bogle had told him. but in the interests of justice "old bogle" and mr. hawkins became acquainted, much to the advantage of the latter, as he happened to meet bogle in the witness-box, a place where the counsel unravelled the trickster's most subtle of designs. the advocate liked "old bogle," as he called him, because, said he, bogle, having white hair, was so like a malacca cane with a silver knob, white at the top and black below. bogle had sworn that roger had no tattoo marks when he left england. in point of fact he had, and bogle had to fit them to the claimant, who had had tattoo marks of a very different kind from roger's. the claimant had removed his, and therefore was presented to the court without any. "how do you know roger had no tattoo marks?" asked mr. hawkins. "i saw his arms on three occasions." this was a serious answer for bogle. "when and where, and under what circumstances?" followed in quick succession, so that there was no escape. the witness said that roger had on a pair of black trousers tied round the waist, and his shirt buttoned up. "the sleeves, how were they?" "loose." "how came you to see his naked arms?" "he was rubbing one of them like this." "what did he rub for?" "i thought he'd got a flea." "did you see it?" "no, of course." "where was it?" "just there." "what time was this?" "ten minutes past eleven." "that's the first occasion; come to the second." "just the same," says bogle. "same time?" "yes." "did he always put his hand inside his sleeve to rub?" "i don't know." "but i want to know." "if your shirt was unbuttoned, mr. hawkins, and you was rubbin' your arm, you would draw up your sleeve--" "never mind what i should do; i want to know what you saw." "the same as before," answers bogle angrily. "a flea?" "i suppose." "but did you see him, bogle?" "i told you, mr. hawkins, i did not." "excuse me, that was on the first occasion." "well, this was the same." "same flea?" "i suppose." "same time--ten minutes past eleven?" "yes." "then all i can say is, he must have been a very punctual old flea." exit bogle, and with him his evidence. after the trial had been proceeding for some time, baigent was giving evidence of the family pedigree. honeyman whispered, "we might as well have the first chapter of genesis and read that." "genesis!" said hawkins; "i want to get to the last chapter of revelation." one day mr. j.l. toole came in, and was invited to sit next to mr. hawkins, which he did. at the adjournment for luncheon the claimant muttered as they passed along, "there's toole come to learn actin' from 'arry orkins." there was one witness who ought not to be forgotten. it was mr. biddulph, a relation of the tichborne family, a good-natured, amiable man, willing to oblige any one, and a county magistrate--"one of the most amiable county magistrates i have ever met, a man of the strictest honour and unimpeachable integrity." he had been asked by the dowager lady to recognize her son. "i don't see how i can," said he. "i am willing to oblige, but not at the expense of truth. better get some one else who knew him better than i did. this man bears no resemblance to the man i knew. i cannot do it." and so he resisted all entreaties with that firmness of purpose for which he was remarkable. "he was then invited," said mr. hawkins, "to a little dinner at another supporter of the claimant's, and one somewhat shrewder than the rest." the claimant described this party as consisting of a county magistrate, a money-lender, a lawyer, and a humbug. this is how the advocate dealt with this little party in his address to the jury:-- "gentlemen, can't you imagine the scene? perkins, the lawyer, says to biddulph, 'come, now, mr. biddulph, you know you have had great experience in cross-examining as a county magistrate at petty sessions; now, cross-examine this man _firmly_, and you'll soon find he knows more than you think. if he's not the man, he's nobody else, you may be quite sure of that. but first of all,' says perkins, 'what did you know of roger? that's the first thing; let's start with that.' "'oh, not very much,' says biddulph. 'he stayed at bath once for a fortnight, while his mother was there.' "'pass mr. biddulph the champagne,' says perkins. (laughter.) "'now,' he adds, 'how did you amuse yourselves, eh?' "'well,' says biddulph, 'we used to smoke together at the hotel--the--the--white something it was called.' "'did you smoke pipes or cigars?' "'well, i remember we had some curious pipes.' "'another glass of champagne for mr. biddulph,' (more laughter.) 'what sort of pipes?' asks the claimant; 'death's-head pipes?' "the magistrate remembered, opened his eyes, and lifted his hands. thus the amiable magistrate was convinced, although he said, candidly enough, 'i did not recognize him by his features, walk, voice, or twitch in his eye, but i was struck with his recollection of having met me at bath.' the death's-head pipes settled him. "as for miss brain the governess, she was of a different order from mr. biddulph. she told us she had listened to the defendant when he solemnly swore that he had seduced her former pupil, that he had stood in the dock for horse-stealing, and had been the associate of highwaymen and bushrangers, and had made a will for the purpose of fraud; and yet this woman took him by the hand, and was not ashamed of his companionship. his counsel described her as a ministering angel. heaven defend me from ministering angels if miss brain is one!" the claimant, while in australia, being asked what kind of lady his mother (the dowager lady tichborne) was, answered, "oh, a very stout lady; and that is the reason i am so fond of mrs. butts of the metropolitan hotel, she being a tall, stout, and buxom woman; and like mrs. mina jury (of wapping), because she was like my mother." a witness of the name of coyne was called to give evidence of the recognition of the claimant by the mother in paris, and the solicitor said to coyne, "you see how she recognizes him." "yes," said coyne; "he's lucky." there was no cross-examination, and mr. hawkins said to the jury, "they need not cross-examine unless they like; it's a free country. they may leave this man's account unquestioned if they like, but if it is a true account, what do you say to the recognition?" louie, the dane, said that while the claimant was on board his ship he amused himself by picking oakum and reading "the garden of the soul." there were several _ospreys_ spoken to as having picked up the claimant after the wreck of the _bella_, and the defendant had not the least idea which one was the best to carry him safely into harbour. the defendant's counsel, notwithstanding, had told the jury that he, hawkins, had not ventured to contradict one or other of the stories of the wreck, and had not called the captain of the _osprey_ which had picked him up. comment on such a proposition in advocacy would be ridiculous. mr. hawkins dealt with it by an example which the reader will remember as having occurred in his early days:-- "'we don't know which _osprey_ you mean.' 'take any one,' says the defendant's counsel, reminding me of the defence of a man charged with stealing a duck, and having given seven different accounts as to how he became possessed of it, his counsel was at last asked which he relied on. 'oh, never mind which,' he answered; 'i shall be much obliged if the jury will adopt any one of them.' "you remember, gentlemen, the touching words in which the defendant's counsel spoke of bogle: 'he is one of those negroes,' said he, 'described by the author of "paul and virginia," who are faithful to the death, true as gold itself. if ever a witness of truth came into the box, that witness was bogle.' "well, you have seen him--old bogle! what do you think of him? was there ever a better specimen of feigned simplicity than he? 'bogle,' cries the defendant, after all those years of estrangement, 'is that _you_?' 'yes, sir roger,' answered bogle; how do you do?' "'do you remember giving me a pipe o' baccy?' asks a poor country greenhorn down at alresford. 'yes,' answers the claimant. 'then you're the man,' says the greenhorn. such was the way evidence was manufactured. "a poor lady--you remember mrs. stubbs--had a picture of her great-great-grandfather's great-grandfather. in goes the claimant, and in his artful manner shows his childhood's memory. 'ah, mrs. stubbs,' says he, looking at another picture, 'that is not the _old_ picture, is it?' (somebody had put him up to this.) no, sir,' cries mrs. stubbs, delighted with his recollection--'no, sir; but please to walk this way into my parlour,' and there, sure enough, was the picture he had been told to ask for. "'ah!' he exclaims, 'there it is; there's the old picture!' "how could mrs. stubbs disbelieve her own senses?" one, sir walter strickland, declined to see the claimant and be misled, and was roundly abused by the defendant's counsel. one of the jury asked if _he was still alive_. "yes," said the lord chief justice, although the defendant expressed a hope that they would all die who did not recognize him.... "in a letter to rous, my lord, where he said, 'i see i have one enemy the less in harris's death. captain strickland, who made himself so great on the other side, went to stay at stonyhurst with his brother, and died there. he called on me a week before and abused me shamefully. so will all go some day'--this," said mr. hawkins, "was not exhibiting the same christian spirit which he showed when he said, 'god help those poor _purgured_ sailors!'" "why should the defendant," asked mr. hawkins at the close of one of the day's speeches, "if he were sir roger, avoid arthur orton's sisters? why, would he not have said, 'they will be glad indeed to see me, and hear me tell them about the camp-fire under the canopy of heaven,' as his counsel put it, 'where their brother arthur told me all about fergusson, the old pilot of the dundee boat, who kept the public-house at wapping, and the shetland ponies of wapping, and the shottles of the nook at wapping, and wished me to ask who kept wright's public-house now, and about the cronins, and mrs. macfarlane of the globe--all of wapping.'" the judges fell back with laughter, and the curtain came down, for these were the questions with many more the claimant asked on the evening of his landing. "i shall attack the noble army of carabineers," said mr. hawkins on another occasion. he did so, and conquered the regiment in detail. one old carabineer was librarian at the westminster hospital. his name was manton, and he was a sergeant. he told baigent something that had happened while roger was his officer, and baigent told the claimant. manton afterwards saw the huge man, and failed to recognize him in any way. but when the claimant repeated to him what he had told baigent, manton opened his eyes. this looked like proof of his being the man. he was struck with his marvellous recollection, and was at once pinned down to an affidavit:-- "the claimant's voice is stronger, and has less foreign accent," he swore; "but i recognized his voice, and found his tone and pronunciation to be _the same as roger tichborne's_, whom i knew as an officer." truly an affidavit is a powerful auxiliary in fraud. while mr. hawkins was replying one afternoon, mr. whalley, m.p., came in and sat next to the claimant. he was from the first one of his most enthusiastic supporters. "well," he said, "and how are we getting on to-day? how are we getting on, eh?" "getting on!" growled the claimant; "he's been going on at a pretty rate, and if he goes on much longer i shall begin to think i am arthur orton after all." i will conclude this chapter with the following reminiscences by lord brampton himself.] * * * * * i had a great deal to put up with from day to day in many ways during this prolonged investigation. the lord chief justice, cockburn, although good, was a little impatient, and hard to please at times. my opponent sought day by day some cause of quarrel with me. at times he was most insulting, and grew almost hourly worse, until i was compelled, in order to stop his insults, to declare openly that i would never speak to him again on this side the grave, and i never did. my life was made miserable, and what ought to have been a quiet and orderly performance was rendered a continual scene of bickering and conflict, too often about the most trifling matters. with every one else i got on happily and agreeably, my juniors loyally doing their very utmost to render me every assistance and lighten my burden. even the claimant himself not only gave me no offence from first to last, but was at times in his manner very amusing, and preserved his natural good temper admirably, considering what he had at stake on the issue of the trial, and remembering also that that issue devolved mainly upon my own personal exertions. nor was the claimant devoid of humour. on the contrary, he was plentifully endowed with it. one morning on his going into court an elderly lady dressed in deep mourning presented him with a religious tract. he thanked her, went to his seat, and perused the document. then he wrote something on the tract, carefully revised what he had written, and threw it on the floor. the usher was watching these proceedings, and, as soon as he could do so unobserved, secured the paper and handed it to me. the tract was headed, "sinner, repent!" the claimant had written on it, "surely this must have been meant for orkins, not for me!" louie's story of picking him up in the boat must have amused him greatly. if he was amused at the ease with which fools can be humbugged, he must also have been astounded at the awful villainy of those who, perfect strangers to him, had perjured themselves for the sake of notoriety. i did what i could to shorten the proceedings. my opening speech was confined to six days, as compared with twenty-eight on the other side; my reply to nine. but that reply was a labour fearful to look back upon. the mere classification of the evidence was a momentous and necessary task. it had to be gathered from the four quarters of the world. it had to be sifted, winnowed, and arranged in order as a perfect whole before the true story could be evolved from the complications and entanglements with which it was surrounded. and when i rose to reply, to perform my last work and make my last effort for the success of my cause, i felt as one about to plunge into a boundless ocean with the certain knowledge that everything depended upon my own unaided efforts as to whether i should sink or swim. happily, for the cause of justice, i succeeded; and at the end, although nattering words of approval and commendation poured upon me from all sides, from the highest to the humblest, i did hot then realize their value to the extent that i did afterwards. the excitement and the exertion had been too great for anything to add to it. but i afterwards remembered--ay, and can never forget--the words of the lord chief justice himself, the first to appreciate and applaud, as i was passing near him in leaving the court: "bravo! bravo, hawkins!" and then he added, "i have not heard a piece of oratory like that for many a long day!" and he patted me cordially on the back as he looked at me with, i believe, the sincerest appreciation. lord chelmsford, too, who years before had given me my silk gown, was on the bench on this last day, and i shall never forget the compliment he paid me on my speech. it was of itself worth all the trouble and anxiety i had undergone. beyond all this, and more gratifying even still, my speech was liked by the bar, from the most eminent to the briefless. but greatest of all events in that eventful day was one which went deeper to my feelings. my old father, who had taken so strong a view against my going to the bar, and who told me so mournfully that after five years i must sink or swim; my old father, who had never once seen me in my wig and gown from that day to this, the almost closing scene in my forensic career, came into court and sat by my side when i made successfully the greatest effort of my life. chapter xxix. a visit to sheffield--mrs. hailstone's danish boarhound. the remembrance of my sessions days will never vanish from my mind, although at the period of which i am speaking they had long receded into the distant past. even _nisi prius_ was diminishing in importance, although increasing in its business and fees. solicitors no longer condescended to deliver their briefs, but competed for my services. i say this without the smallest vanity, and only because it was the fact, and a great fact in my life. i was wanted to win causes by advocacy or compromise; and the innumerable compensation cases which continually came in with so steady and so full a tide were a sufficient proof that, at all events, the solicitors and others thought my services worth having. so did my clerk! those were the days of the golden harvest, the very gleanings of which were valuable to those who came after. lloyd must have made £ , a year with the greatest ease. what my income was is of no consequence to any one; suffice it to say that no expectations of mine ever came up to its amount, and even now when i look back it seems absolutely fabulous. i will say no more, notwithstanding the curiosity it has excited amongst the members of the profession. of course it was a step for me from the humble "_one three six_;" but i have had a more lively satisfaction from that little sum than from many a larger fee. in the midst of all this rush of london business i still found time to run down to country places in cases of election petitions or compensation. one day i found myself on my way to sheffield to support the member against an attempt to deprive him of his seat in parliament. i went with the hon. sir edward chandos leigh, my distinguished junior on that memorable occasion. the journey was pleasant until we got near the end of it, and then the smoke rolled over and around in voluminous dense clouds, for a description of which you may search in vain through "paradise lost." we were met at the station with great state, and even splendour, and treated with almost boundless hospitality. to keep up our spirits, we were taken for a drive by the sitting member a few miles out, into what they call "the country" in those parts. the suburban residence was situated in a well-wooded park, if that can be called well-wooded where there are no woods, but only stunted undergrowths sickening with the baleful fumes that proceed from the city of darkness in the distance, and black with the soot of a thousand chimneys. the member apologized politely enough for bringing us to this almost uninhabitable and heaven-forsaken region; but i begged him not to mind: it was only a more blasted scene than the heath in "macbeth." "yes," said he, still apologetically; "it _is_ very bad, i admit. you see, the fumes and fires from those manufactories make such havoc of our woods." this was apparent, but the question was how to pass the time amidst this gloom and sickening atmosphere. i found his residence, however, to my great joy, was farther than i expected from the appalling city of darkness, and hope began to revive both in my junior's heart and mine. our friend and host, seeing our spirits thus elated, began, to talk with more life-like animation. "the fumes from the factories, mr. hawkins, have so played the devil with our trees that the general impoverishment of nature has earned for the locality of sheffield the unpleasant title of the 'suburbs of hell.'" "i don't wonder," i answered; "no name could be more appropriate or better deserved; but if it were my fate to choose my locality, i should prefer to live in _the city itself_." a curious incident happened to us during this yorkshire visit. an excursion was arranged to see warburton's, situated some few miles off, and notable for many oddities. we were driven over, and when we arrived were by no means disappointed by the singularities of the mansion. it was enclosed within a high wall, which had been built, not for the purpose, as you might suppose, of preventing the house from getting away, but for that of keeping out rats and foxes; for there were birds to be preserved from these destructive animals. next, this portion of the estate was surrounded by water, which afforded an additional security to its isolation, access to the island being attainable only by means of a bridge. the mansion was occupied by a mrs. hailstone, whose duty it was to show visitors over the house and explain everything as she went along, ghost stories as well; and being a remarkably affable lady, with a great gift of language, we had a very intelligent and edifying lecture in every room we passed through, now upon ornithology, now chronology, next on pisciculture and the habits of stuffed pike and other fish. but this was not all. our guide was wonderfully well read in architecture, and displayed no end of knowledge in pointing out the different orders and sub-orders, periods of, and blendings of the same, so that we were quite ready for lunch as soon as that period should mercifully arrive. but it was not exactly yet. there were many other curiosities to be shown. for instance, we had not done the warburton library, which was a most singular apartment, as we were informed, i don't know how many stories high, at the top of a very singular tower, with as many languages in it as the tower of babel itself, and very nearly as tall. one only wished the whole thing would topple down before we could come to it. at last, however, we climbed to this lofty eminence and revelled as well as we could amongst the musty old books, which themselves revelled in the dust of ages. having seen all the shelves and the backs of the books, and heard all the accounts of them without receiving any information, we commenced our descent by means of the winding staircase towards the garden. on our way a curious circumstance took place. there was an enormously great danish boarhound, which had, unperceived by us, followed mrs. hailstone from the library; it pushed by without ceremony, and proceeded until it reached the lady, who was some distance in advance. he then carefully took the skirt of her dress with his mouth and carried it like an accomplished train-bearer until she reached the bottom of the stairs and the garden, when he let go the dress and gazed as an interested spectator. we were now in the midst of a very beautiful and well-kept garden, with a lawn like velvet stretching far away to the lake, where ultimately we should have to wait for a boat to ferry us along its placid water. this was part of our entertainment, and a very beautiful part it was. but before we parted from mrs. hailstone, and while i was talking to her, i felt my hand in the boarhound's mouth, and a pretty capacious mouth it was, for i seemed to touch nothing but its formidable fangs. it was not a pleasant experience, but i preserved sufficient presence of mind to make no demonstration. dogs know well enough when a man or woman loves their kind, and i am sure this one was no exception, or he would never have behaved with such gentlemanly politeness. so soft was the touch of his fangs that i was only just conscious my hand was in his mouth by now and then the gentlest reminder. i knew animals too well to attempt to withdraw it, and so preserved a calm more wonderful than i could have given myself credit for. while i was wondering what the next proceeding might be, mrs. hailstone begged me to be quite easy, and on no account to show any opposition to the dog's proceedings, in which case she promised that he would lead me gently to the other side of the lawn, and there leave me without doing the least harm. all this was said with such cool indifference that i wondered whether it was a part of the day's programme, and rather supposed it was; but it turned out that she said it to reassure me and prevent mischief. i also learned that it was not by any means the first occasion when this business had taken place. it was the first time in my life that i had been in custody, and if i had had my choice i should have preferred a pair of handcuffs without teeth. as i was being led away mrs. hailstone said,-- "do exactly as he wishes; he is jealous of your talking to me, and leads any one away who does so to the other side of the garden." having conducted me to the remotest spot he could find, he opened his huge jaws and released my hand, wagged his tail, and trotted off, much pleased with his performance. he returned to his mistress and put his large paws on her arms--a striking proof, i thought, of the dog's sagacity. there will be in this history some stories of my famous "jack," but as he belonged to me after i became a judge, they are deferred until that period arrives. the reminiscences of jack are amongst my dearest and most pleasant recollections. the changeful nature of popular clamour was never more manifested than on this visit. the claimant had been convicted and sentenced to penal servitude, but to deprive a man of his title and estate because he was a butcher's son did not coincide with the wishes of a generous democracy, who lingered round the sheffield court, where the fate of their sitting member was to be tried. they believed in their member, and, not knowing on which side i was retained, when i went along the corridor into the court they "yah! yah'd!" at me with lungs that would have been strong enough to set their furnaces going or blow them out. after the petition was tried, and i had been successful, they changed their minds and their language. this same british public, which not long before had "yah! yah'd!" at me, now came forward with true british hoorays and bravos. "'orkins for ever!" "hooray for orkins!" "bravo, orkins!" "hooray! a ---- hooray! hooray for wagga wagga!" this last cry had reference to a village in australia where the great tichborne fraud had its origin; where the first advertisement of the dowager seeking her lost son was shown to the butcher in his own little shop, the son of the respectable butcher of wapping. the number of people who professed to believe in the claimant long after he was sent to penal servitude was prodigious, although not one of them could have given a reason for his faith, or pointed to a particle of unimpeachable evidence to support his opinion. it had never been anything other than feeling in the dark for what never existed. chapter xxx. an expert in handwriting--"do you know joe brown?" i always took great interest in the class of expert who professed to identify handwriting. experts of all classes give evidence only as to opinion; nevertheless, those who decide upon handwriting believe in their infallibility. cross-examination can never shake their confidence. some will pin their faith even to the crossing of a t, "the perpendicularity, my lord," of a down-stroke, or the "obliquity" of an upstroke. mr. nethercliffe, one of the greatest in his profession, and a thorough believer in all he said, had been often cross-examined by me, and we understood each other very well. i sometimes indulged in a little chaff at his expense; indeed, i generally had a little "fling" at him when he was in the box. it is remarkable that, at the time i speak of, judges, as a rule, had wonderful confidence in this class of expert, and never seemed to think of forming any opinion of their own. a witness swore to certain peculiarities; the judge looked at them and at once saw them, too often without considering that peculiarities are exactly the things that forgers imitate. "you find the same peculiarity here, my lord, and the same peculiarity there, my lord; consequently i say it is the same handwriting." in days long gone by the eminent expert in this science had a great reputation. as i often met him, i knew _his_ peculiarities, and how annoyed he was if the correctness of his opinion was in the least doubted. he had a son of whom he was deservedly proud, and he and his son, in cases of importance, were often employed on opposite sides to support or deny the genuineness of a questioned handwriting. on one occasion, in the queen's bench, a libel was charged against a defendant which he positively denied ever to have written. i appeared for the defendant, and mr. nethercliffe was called as a witness for the plaintiff. when i rose to cross-examine i handed to the expert six slips of paper, each of which was written in a different kind of handwriting. nethercliffe took out his large pair of spectacles--magnifiers--which he always carried, and began to polish them with a great deal of care, saying,-- "i see, mr. hawkins, what you are going to try to do--you want to put me in a hole." "i do, mr. nethercliffe; and if you are ready for the hole, tell me--were those six pieces of paper written by one hand at about the same time?" he examined them carefully, and after a considerable time answered: "no; they were written at different times and by different hands!" "by different persons, do you say?" "yes, certainly!" "now, mr. nethercliffe, you are in the hole! i wrote them myself this morning at this desk." he was a good deal disconcerted, not to say very angry, and i then began to ask him about his son. "you educated your son to your own profession, i believe, mr. nethercliffe?" "i did, sir; i hope there was no harm in that, mr. hawkins." "not in the least; it is a lucrative profession. was he a diligent student?" "he was." "and became as good an expert as his father, i hope?" "even better, i should say, if possible." "i think you profess to be infallible, do you not?" "that is true, mr. hawkins, though i say it." "and your son, who, as you say, is even better than yourself, is he as infallible as you?" "certainly, he ought to be. why not?" then i put this question; "have you and your son been sometimes employed on opposite sides in a case?" "that is hardly a fair question, mr. hawkins." "let me give you an instance: in lady d----'s case, which has recently been tried, did not your son swear one way and you another?" he did not deny it, whereupon i added: "it seems strange that two infallibles should contradict one another?" the case was at an end. * * * * * one evening, after a good hard day's work, i was sitting in my easy-chair after dinner, comfortably enjoying myself, when a man, who was quite a respectable working man, came in. i had known him for a considerable time. "what's the matter, jenkins?" i inquired, seeing he was somewhat troubled. "well, mr. hawkins, it's a terrible job, this 'ere. i wants you to appear for me." "where?" i inquired. "at bow street, mr. hawkins." "bow street! what have you been doing, jenkins?" "why, nothing, sir; but it's a put-up job. you knows my james, i dessay. well, sir, that there boy, my son james, have been brought up, i might say, on the church catechism." "there's not much in that," i said, meaning nothing they could take him to bow street for. "is that the charge against him?" "no, sir; but from a babby, sir, his poor mother have brought that there boy up to speak the truth, the whole truth, and nothing but the truth. and it's a curious thing, mr. hawkins--a very curious thing, sir--that arter all his poor mother's care and james's desire to speak the truth, they've gone and charged that there boy with perjury! 'at all times,' says his mother, 'james, speak the truth, the whole truth, and nothing but the truth;' and this is what it's come to--would anybody believe it, sir? _could_ anybody believe it? it's enough to make anybody disbelieve in christianity. and what's more, sir, that there boy was so eager at all times to tell the whole truth that, to make quite sure he told it all, he'd go a little beyond on the other side, sir--he would, indeed." when he heard my fee was a hundred guineas to appear at the police court, i heard no more of truthful james. * * * * * in dealing with a case where there is really no substantial defence, it is sometimes necessary to throw a little ridicule over the proceedings, taking care, first, to see what is the humour of the jury. i remember trying this with great success, and reducing a verdict which might have been considerable to a comparatively trifling amount. [in illustration of this mr. cecil a. coward has given an incident that occurred in an action for slander tried at the guildhall many years ago, in which mr. hawkins, q.c., was for the defendant, and mr. joseph brown, q.c., for the plaintiff. the slander consisted in the defendant pointing his thumb over his shoulder and asking another man, "do you know him? that's joe smith." mr. joseph brown, q.c., had to rely upon his innuendo--"meaning thereby joe smith was a rogue"--and was very eloquent as to slander unspoken but expressed by signs and tone. after an exhausting speech he sat down and buried his head in his bandana, as his habit was. hawkins got up, and turned mr. joseph brown's speech to ridicule in two or three sentences. "gentlemen," he almost whispered, after a very small whistle which nobody could hear but those close around, at the same time pointing his thumb over his shoulder at his opponent, "do you know him--do you know joe brown?" there was a roar of laughter. joe looked up, saw nothing, and retired again into his bandana. again the performance was gone through. "do you know joe brown, the best fellow in the world?" brown looked up again, and was just in time to hear the jury say they had heard quite enough of the case. no slander--verdict for the defendant. it was one of the best pieces of acting i ever saw him do.] chapter xxxi. appointed a judge--my first trial for murder, no sooner was the tichborne case finished than i was once more in the full run of work. one brief was delivered with a fee marked twenty thousand guineas, which i declined. it would not in any way have answered my purpose to accept it. i was asked, however, to name my own fee, with the assurance that whatever i named it would be forthcoming. i promised to consider a fee of fifty thousand guineas, and did so, but resolved not to accept the brief on any terms, as it involved my going to indie, and i felt it would be unwise to do so. in i was offered by lord cairns the honour of a judgeship, which i respectfully declined. it was no hope of mine to step into a puisne judgeship, or, for the matter of that, any other judicial position. i was contented with my work and with my career. i did not wish to abandon my position at the bar, and my friends at the bar, and take up one on the bench with no friends at all; for a judge's position is one of almost isolation. this refusal gave great dissatisfaction to many, and a letter i have before me says, "i got into a great row with my editor by your refusal." another said he lost a lot of money in consequence: "i thought it was any odds upon your taking it." sir alexander cockburn gave me a complimentary side-cut in a speech he made to some of his old constituents. "the time comes," said he, "when men of the greatest eminence are called upon to give up their professional emoluments for the interests of their country. in my opinion they have no right to refuse their services; no man has this right when his country calls for them." but these animadversions did not affect me. i held on to the course which i had deliberately chosen, and which i thought my labours and sacrifices in the tichborne case on behalf of my country entitled me to enjoy. let any one who has the least knowledge of advocacy consider what it was to carry that case to a successful issue, and then condemn me for not taking a judgeship if he will. i was entitled to freedom and rest. a judgeship is neither, as one finds out when once he puts on the ermine. but it requires no argument to justify the course i took. i was entitled to decline, and i did. there is nothing else to be said; all other considerations are idle and irrelevant. a judgeship was, however, a second time offered by lord cairns in . this, after due consideration, i accepted, and received my appointment as a judge of the exchequer court on november of that year. the first and most sensational case that i was called upon to preside over was known as the penge case. sir alexander cockburn had appointed himself to try it, on account of its sensational character; but as it came for trial at a time when the lord chief justice could not attend, it fell to the junior judge on the bench. i am not going to relate the details of that extraordinary case,[a] which are best left in the obscurity of the newspaper files; but i refer to it because it cannot well be passed over in the reminiscences of my life. i shall, however, only touch upon one or two prominent points. [footnote a: the great sensation of the case was almost overpowered by the great sensation that "a new power had come upon the bench." these are, as nearly as i can give them, the words of one of our most distinguished advocates, and one of the most brilliant who was in the penge case:-- "we felt, and the bar felt, that a great power had come upon the bench; he summed up that case as no living man could have done. every word told; every point was touched upon and made so clear that it was impossible not to see it." another distinguished advocate said there was no other judge on the bench who could have summed that case up as sir henry hawkins did.--r.h.] "every person," i said in my summing up, "who is under a legal duty, whether such duty was imposed by law or contract, to take charge of another person must provide that person with the necessaries of life. every person who had that legal duty imposed upon him was criminally responsible if he culpably neglected that duty, and the death of the person for whom he ought to provide ensued. if the death was the result of mere carelessness and without criminal intent, the offence would be manslaughter, provided the jury came to the conclusion that there had been culpable neglect of the duty cast upon the individual who had undertaken to perform it." with regard to the evidence of one of the witnesses who was said to be an accomplice, so that it was necessary that she should be corroborated, i said a jury might convict without it, but recommended them strongly not to take for granted her evidence unless they found there was so much corroboration of her testimony as to induce them to believe she was telling the truth. as to one of the accused, i said: "if she had no legal object to fulfil in providing the deceased with the necessaries of life, the mere omission to do so would not render her guilty; but if she did an act wrongfully which had a tendency to destroy life, but which was not clone with that intention, she would be guilty of manslaughter." the jury found a verdict of guilty against all, but with a strong recommendation in favour of one, in which i joined. when a verdict of guilty of wilful murder is returned, a judge, whatever may be his opinion of its propriety or justice, has no alternative but to deliver the sentence of death, and in the very words the law prescribes. it is not _his_ judgment or decision, but it is so decreed that the sentence shall in no way depend upon the sympathy or opinion of the judge. whatever mitigating circumstances there may be must be considered by the secretary of state for the home department as representing the sovereign, and upon his advice alone the sovereign acts. but the home secretary never allows a sentence of death to be executed without the fullest possible inquiry as to mitigating circumstances, and it is at this stage that the opinion of the judge is almost all-powerful. my judgment in this case was the result of much anxious thought and consideration. the responsibility cast upon me was great. the case was as difficult as it was serious; but my line of duty was plain, and it was to leave the facts as clearly as i could possibly state them, with such explanation of the law applicable to each case as my ability would allow, and then leave the jury to find according to their honest belief. no duty more arduous has ever since been imposed upon me, and i performed it in my honest conscience, without swerving from what i believed, and believe still, to be my strict line of duty. i have had many opportunities of reconsidering the whole circumstances, but i have never changed or varied my opinion after all these years, and am certain i never shall--namely, that i did my duty according to the best of my judgment and ability. a judge may go wrong in many ways, and often does in one way or other, especially if he does not know his own mind--the worst of all weaknesses, because it usually leads to an attempt to strike a medium line between innocence and guilt. one great weakness, too, in a judge is not having the faculty of setting out the facts in language which is intelligible to the jury, or in not setting them out at all, but repeating them so often and in so many forms that they are at last left in an absolutely hopeless muddle. a judge once kept on so at the jury about "if you find burglarious intent, and if you don't find burglarious intent," that at last the jury found nothing except a verdict of not guilty, giving the "benefit of the doubt as to what the judge meant." as an illustration of the necessity of giving the jury a clear idea of the evidence in the simplest case, i will state what took place at exeter. juries are unused to evidence, and have very often to be told what is the bearing of it. in a case of fowl-stealing which i was trying, there was a curious defence raised, which seemed too ridiculous to notice. it was that the fowls had crept into the nose-bag in which they had been found, and which was in the prisoner's possession, in order to shelter themselves from the east wind. forgetting that possibly i had an unreasoning and ignorant jury to deal with, i thought they would at once see through so absurd a defence, and did not insult their common sense by summing up. i merely said,-- "gentlemen, do you believe in the defence?" they put their heads together, and kept in that position for some time, and at last, to my utter amazement, said,-- "we do, my lord; we find the prisoner _not guilty_." it was a verdict for the prisoner and a lesson for me. it was always my practice, founded on much calculation of the respective and relative merits and demerits of prisoners, to do what no other judge that i am aware of ever did, which was to put convicted prisoners back until the whole calendar had been tried, then to bring them up and pass sentence after deliberate consideration of every case. i thus had the opportunity of reading over my notes and forming an opinion as to whether there were any circumstances which i could take into consideration by way of mitigation, or, in the same manner, as to whether there were matters of aggravation, such as cruelty or deliberate, wilful malice. the result of this plan on one occasion at stafford assizes, which i remember very well, was this. two men were convicted of bigamy. the offence was the same in law as to both the prisoners. the one was altogether, physically and morally, a brute, cruel and merciless. the other man found guilty had been a bad husband to his wife before he went through the form of the second marriage; but as he had been already punished for his misconduct in that respect, i thought it fair that he should not be punished again for the same offence. such is my idea of the law of england, although i fear it is sometimes forgotten. i therefore treated this man's crime as one of a very mitigated character, no harm having been done to the second woman, and released him on his own recognizances to come up for judgment if he should be called upon. i would not revisit upon him his past misdeeds. the other man i sent into penal servitude for five years. chapter xxxii. on the midland circuit. "that's orkins hover there," said a burly-looking sportsman as i arrived one day at newmarket heath--"'im a-torkin' to corlett. see 'im? nice bernevolent old cove to look at, ain't 'e? yus. that didn't stop 'is guvin' me _five of his wery best_, simply becorze by accident i mistook someb'dy else's 'ouse and plate-chest for my own. sorter mistake which might 'appen a'most to henybody. there 'e is; see 'im? that's orkins!" i need not say i was frequently spoken of in this complimentary manner by persons who had been introduced to me at the bar. i was once leading a little fox terrier with a string, because on several occasions he had given me the slip and caused me to be a little late in court. i led him, therefore, in the leash until he knew his duty. on this day, however, as the crowd was waiting for me on the little platform of a country station, my fox terrier jumped out in front of me while i was holding him by the string. "good ----!" cried a voice from a gentleman to whom i had previously given a situation under government, livery and all found; "why, blow me if the old bloke ain't blind! lookee there, 'is dawg's a-leadin' 'im; wot d'ye think o' that?" but persons in much higher station were no less at times fond of chaff, which i always took good-humouredly. a story of lord grimthorpe, who, many years after, had some fun with me at times over my little jack, will appear in his reminiscences a little farther on. i used to lead jack with a string in the same manner as i had done the other, for educational purposes, and lord grimthorpe jocularly called me jack's prisoner. but i must let him tell his own story in his own way when his turn comes. the midland circuit was always famous for its ill accommodation of her majesty's judges, and of late years even in the supply of prisoners to keep them from loitering away their days in idleness or lonely diversions. i always loved work and comfortable lodgings, and may say from the first to the last of my judicial days set myself to the improvement of both the work and the accommodation. some judges in their charges used to discourse with the grand jury of our foreign relations, turnips, or the state of trade; but i took a more humble theme at aylesbury, when i informed that august body that the quarters assigned to her majesty's judges were such that an officer would hardly think them good enough to billet soldiers in. "my rest, gentlemen, has been rudely disturbed," said i, "in the lodgings assigned to me. my bedroom was hardly accessible, on account of what appeared to be a dense fog which was difficult to struggle through. i sought refuge in the dressing-room. being a bitterly cold night and a very draughty room, some one had lighted a fire in it; but, unfortunately, all the smoke came down the chimney after going up a little way, bringing down as much soot as it could manage to lay hold of. all this is the fault of the antiquated chimneys and ill-contrived building generally. my marshal was the subject of equal discomfort; and i think i may congratulate you, gentlemen, not only on there being very few prisoners, but also on the fact that you are not holding an inquest on our bodies." the grand jury were good enough to say that there was "an institution called the standing joint committee, who will, no doubt, inquire into your lordship's subject of complaint." the "standing joint committee" sounded powerfully, but i believe no further notice was taken, and the question dropped. "that's a nice un," said one of the javelin-men at the door when a friend of his came out. "did yer 'ear that, jimmy? orkins is a nice un to talk about lodgings. let him look to his own cirkit--the 'orne cirkit--where my brother told me as at a trial at guildford the tenant of that there house wouldn't pay his rent. for why? because they was so pestered wi' wermin. and what do you think orkins told the jury?--he was counsel for the tenant.--'why,' he says, 'gentlemen, you heard what one of the witnesses said, how that the fleas was so outrageous that they ackshally stood on the backs o' the 'all chairs and barked at 'em as they come in.' that's orkins on his own circuit; and 'ere he is finding fault with our lodgings." it was not long after my arrival at lincoln, on the first occasion of my visiting that drowsy old ecclesiastical city, that i was waited upon, first by one benevolent body of gentlemen, and then another, all philanthropists seeking subscriptions for charitable objects. one bitterly cold morning i was standing in my robes with my back to the fire at my lodgings, waiting to step into the carriage on my way to court, when a very polite gentleman, who headed quite a body of other polite gentlemen, asked "if his lordship would do them the honour of receiving a deputation from the l. and b. skating club." i assented--nothing would give me more pleasure; and in filed the deputation, arranging themselves, hats in hand, round me in a semicircle. "we have the honour, my lord, to call upon your lordship in pursuance of a resolution passed last night at a special meeting of our club--" "what is the name of your club?" "the l. and b. skating club, my lord." "what is its object?" "_our_ object, my lord?" "no, the object of your _society_. i can guess your object." the leader answered with a smile of the greatest satisfaction,-- "er--skating, my lord." "your own amusement?" the head of the deputation bowed. "do you want _me_ to skate?" "no, my lord; but we take the liberty of asking your lordship to kindly support our club with a subscription." "when i see," i replied, "so much poverty and misery around me which needs actual relief, and when i look at this inclement weather and think how these poor creatures must suffer from the cold, it seems to me that _they_ are the people who should apply to those who have anything to bestow in charity; not those who are the only people, as it would appear, who can take pleasure in this excruciating weather. see if your club cannot do something for these poor sufferers instead of collecting merely for your own personal amusement; contribute to their necessities, and then come and see me again. i shall be here till monday." the head of the deputation stared, but it did not lose its presence of mind or forget its duty. the deputation made a little speech "thanking me heartily for the kind manner in which they had been received." i never saw anything more of them from that day to this. [in a case at devizes sir henry showed in a striking manner the character he always bore as a humane judge. he was not humane where cruelty was any part of the culprit's misdeeds, for he visited that with the punishment he thought it deserved, and his idea of that was on a somewhat considerable scale.] i was down upon cruelty, and always lenient where there were any mitigating circumstances whatever, either of mental weakness, great temptation, provocation, or unhappy surroundings. a woman was brought up before me who had been committed to take her trial on a charge of concealing the birth of a child. for prisoners in these circumstances i always felt great sympathy, and regarded the moral guilt as altogether unworthy of punishment. the law, however, was bound to be vindicated so far as the legal offence was concerned. she had already been in prison for three months, because she was too poor and too friendless to find bail. i am always pointing out that if magistrates would send more cases to the judges than they do, they would get some precedents as to the appropriate measure of punishment, which they seem badly to need. this woman had already been punished, without being found guilty, with three times the punishment she ought to have received had she been found guilty. a month's imprisonment would have been excessive. prisoners should always be released on their own recognizances where there is a reasonable expectation that they will appear. the result was that the unhappy woman, who had been punished severely while in the eye of the law she was innocent, was discharged when she was found to be guilty. we have seen how mr. justice maule examined a little boy as to his understanding the nature of an oath. i once examined a little girl upon a preliminary point of this kind, before she had arrived at that period of mental acuteness which enables one to understand exactly the meaning of the words uttered in the administration of the oath. the child was called, and after allowing the form of "the evidence you shall give," etc., and "kiss the book," to be gabbled over, i said, before the testament could reach the child's lips,-- "stop! do you understand what that gentleman has been saying?" "no, sir." i think it is a great farce to let little children be sworn who cannot be expected to understand even the language in which the oath is administered, to say nothing of the oath itself. how can they comprehend the meaning of the phrases employed? and many grown-up uneducated people are in the same situation. surely a simple form, such as, "_you swear to god to speak the truth_"--or, even better still, to make false evidence punishable without any oath at all--would be far better. chapter xxxiii. jack. i was always fond of dogs, and never cease to admire their intelligence and sagacity. my little jack was given to me when quite a puppy by my old and very dear friend lord falmouth. he was brought to me by lady falmouth, and from that time his history was my history, for his companionship was constant and faithful; in my hours of labour and of pleasure he was always with me, and i believe, if i had had any sorrows, he would have shared them as he did my pleasures--nay, these he enhanced more than i can tell. of course he invariably came circuit, and sat with me in my lodgings and on the bench, where he would patiently remain till the time came to close my notebook for the day. whether he liked it or not i am unable to say, but he seemed to take an interest in the proceedings. about this, however, his reminiscences will speak for themselves. he always occupied the seat of honour in the sheriff's carriage, and walked to it with a dignity worthy the occasion. i am glad to say the judges all loved jack, and treated him most kindly, not for my sake, but, i believe, for his own--although, i may add in passing, he sometimes gave them a pretty loud rebuke if they showed any approach to ill-humour on an occasional want of punctuality in coming into court. some of them were exceedingly particular in being up to time to a _moment_; and i should have equal to the occasion at all times, but that i had to give jack a run before we started for the duties of the day. it was necessary for his health and good behaviour. on circuit, of course, whenever there was little to do--i am speaking of the midland particularly, although the western was quite as pleasant--i gave him longer runs. for instance, in warwick park nothing could be more beautiful than to loiter there on a summer morning amongst the cedars on the beautiful lawn. it may seem unreasonable to say so, but jack almost seemed to be endowed with human instincts. he was as restless as i was over long, windy speeches and cross-examinations that were more adapted for the smoking-room of a club than a court of justice; and in order to repress any tendency to manifest his displeasure i gave him plenty of exercise in the open air, which made him sleep generally when counsel began to speak. having mentioned the commencement of my companionship with jack, which in these reminiscences i would on no account omit, i shall let him hereafter tell his own experience in his own way. jack's reminiscences. i was born into the family of my lord falmouth, and claim descent from the most well bred of my race in this kingdom, the smooth fox terrier. all my ancestors were noted for their love of sport, their keen sense of humour, and hatred of vermin. at a very early period of my infancy i was presented to sir henry hawkins, one of her majesty's judges of the high court, who took a great fancy to me, and, if i may say so without appearing to be vain, at once adopted me as his companion and a member of his family. sir henry, or, as i prefer to call him, my lord, treated me with the sweetest kindness, and i went with him wherever it was possible for him to take me. at first my youthful waywardness and love of freedom--for that is inherent in our race--compelled him to restrain me by a string, which i sometimes pulled with such violence that my lord had to run; and on seeing us so amusing ourselves one morning, old lord grimthorpe, i think they called him, who was always full of good-natured chaff, cried out,-- "halloa, hawkins! what, has jack made you his prisoner? ha! ha! hold him, jack; don't let him get away!" well, this went on for several weeks, what i think you call chaff, and at last i was allowed to go without the string. it happened that on the very first morning when i was thus given my liberty, whom should we meet but this same old lord grimthorpe. "halloa!" he cries again--"halloa, hawkins! does your keeper let you go without being attached to a string?" "no, no," says my lord--"no, no; jack's attached to _me_ now." thereupon dear old grimthorpe, who loved a joke, laughed till his elbows rested on his knees as he stooped down. "well," said he, "that's good, hawkins, very good indeed." on one occasion one of those country yokels who always met us at assize towns, and got as close up to our javelin-men as they could, so that we could not only see them but indulge our other senses at the same time, seeing us get out of our carriage, said to another yokel, "i say, bill, blarmed if the old bloke ain't brought his dawg again--that there fox terrier--to go a-rattin'." i did not know what "rattin'" meant at that time, and did not learn it till we got to warwick. i thought it was rude to call my lord a "bloke," especially in his red robes; but did not quite know what "bloke" meant, for i had seen so little of mankind. one morning before we opened the commission at warwick--i may as well come to it at once--my lord and i went for a walk along the road that leads over the bridge by warwick castle towards leamington. there is a turning to a village which belonged to the old days, but does not seem now to belong to anything, and looks something like a rural watering-place, quiet and unexciting. we turned down this quiet road, and came alongside a beautiful little garden covered with flowers of all kinds. i had occasion afterwards to learn whom they belonged to; but i will tell you before we go further, so as to make the situation intelligible. he was a countryman who used to make it his boast that he never had a day's schooling in his life (so that he ought to have been leader of the most ignorant classes), and this made him the independent man he was towards his betters. then my lady warwick used to take notice of him, and this also gave him another lift in his own estimation. he learnt to read in the long run, for he really had a good deal of native talent for a man, and set himself up for a politician and a something they call a philosopher, which any man can be with a pint pot in front of him, i am told, especially at a village alehouse. he was a great orator at the gridiron beershop in the lane which runs round one part of my lord warwick's park, and it was said that old gale--such was his name--had picked up most of his education from his own speeches. gale was also the lawyer of the village--he could tell everybody what his rights were, if anybody had any besides gale; but he declared he had been done out of _his_ rights by a man who had lent his old father some money on the bit of land i am coming to. as we went along, what should we see but a rat! i knew what he was in a moment, although i had never seen such a thing before, and knew i had to hunt him. my lord cries, "_cis_!--_rat, jack_--_rats_!" away i went after the rat--i did not care what his name was--and sir henry after me, with all the exuberance he used to show when he was following the "quorn." presently we heard the dreadful orator's voice using language only uttered, i am glad to say, amongst men. "where the h--l are you coming to like this?" he cried. i forgot to say that our marshal was with us, and of course he took upon himself to explain how matters stood; indeed, it was one of his duties when judges went out a-ratting to explain _who_ they were. so when we arrived at the place where they were talking together, i heard the dreadful man say,-- "judge o' th' land! he ain't much of a judge o' th' land to tear my flowers to pieces like that. look at these 'ere toolips." the marshal explained how that it was for the improvement of sir henry hawkins's health that a little fresh air was taken every morning. "lookee 'ere," says gale, "i didn't know it wur the judge doin' me the honour to tear my flower-beds to pieces. i bin workin' at these 'ere beds for months, and here they are spilt in a minit; but i tell ee what, orkins or no orkins, he ain't gwine to play hell with my flower-beds like that 'ere. if he wants the ground for public improvement, as you call it, well, you can take it under the act. there's room enough for improvement, i dessay." now, instead of his lordship sending the man to prison, as i thought to be sure he must do, he speaks to him as mild as a lamb, and tells him he commends his spirit, and actually asks him what he valued the flowers at. a judge condescending to do that! this mollified the old man's temper, and turned away his flowery wrath, so he said at once he wasn't the man to make a profit out o' the circum_starnce_; but right was right, and wrong worn't no man's right, with a great many other proverbs of a like nature, which are as hard to get rid of amongst men and women as precedents amongst judges; and then the old man, much against his will and inclination, had a sovereign forced upon him by our marshal, which he put into his pocket, and then accompanied us to the gate. now came this remarkable circumstance. when we got back to our lodgings after being "churched," what should we find but a beautiful nosegay of cut flowers in our drawing-room from old gale, and every morning came a similar token of his good-nature and admiration while we were there, and the same whenever we went on that circuit. one of our servants was kind enough to make me a set of robes exactly like my lord's, which i used to wear in the court of crown cases reserved and at high functions, such as the queen's birthday or chancellor's breakfast. in court i always appeared in mufti on ordinary occasions--that is to say, i did not appear at all ostentatiously, like some men, but sat quietly on my lord's robe close to his chair. i well remember one occasion while we were at hereford, a very pompous and extremely proper town, as all cathedral cities are; my lord and i were robed for the reception of the high sheriff (as he is called) and his chaplain, who were presently coming with the great carriage to take us to be churched before we charged the grand jury. hereford is a very stately place, and enjoys a very high opinion of its own importance in the world. it is almost too respectable to admit of the least frivolity in any circumstances. you always seemed to be going to church at hereford, or just coming out--the latter was nicest--so that there was, in my time, a sedateness only to be equalled by the hardness of a brazil nut, which would ruin even my teeth to crack. i don't know if that is a proper way in which to describe a solid herefordian; but if so, judge of the high sheriff's surprise, as well as that of the chaplain, when i walked by the side of my lord into our drawing-room! i never saw a clergyman look so glum! we were both in robes, as i observed, and my lord was so pleased with my appearance that he held me up for the two dignitaries to admire. but hereford does not admire other people; they confine their admirations within their own precincts. on our way from the station to our lodgings, i ought to have said, both these gentlemen were full of praises. who would not admire a judge's companion? although sheriff and chaplain were highly proper, the former could not restrain a hearty laugh, while the latter tightened his lips with a reproving smile. but then the chaplain, with a proper reverence for the state function, afterwards looked very straight down his nose, and, hemming a little, ventured to say,-- "my lord, are you _really_ going to take the little dog to divine service in the cathedral?" my lord looked quite astonished at the question, and then put his face down to me and pretended to whisper and then to listen. afterwards he said,-- "no. jack says not to-day; he doesn't like long sermons." the chaplain would much rather i had gone to church than have heard such a reprimand. but this is not quite the end of my reminiscence. i heard on the best authority that the sermon of the chaplain on that morning was the _shortest he had ever preached_ as an assize discourse, and my lord attributed it entirely to my supposed observation on that subject, so that my presence, at all events, was useful. i have always observed that lesser dignitaries are more jealous of their dignity than greater ones. here was an excellent example of it. the chaplain looked very severe, but when this little story reached the ears of the good bishop atlay he was delighted, and wished to see me. i was becoming famous. i made my call in due course, and let him see that a judge's dog was not to be put down by a mere chaplain, and came away much gratified with his lordship's politeness. after this, during our stay in the city, the bishop gave me the run of his beautiful new garden along the riverside. and there my lord and i used to gambol for an hour after our duties in court were over. this lovely garden was an additional pleasure to me, because i was relieved from a muzzle. there was only one thing wanting: the bishop kept no rats. after this his lordship never saw my lord without asking the question, "how's dear jack?" which showed how much a bishop could respect a little dog, and how much superior he was to a chaplain. i heard him say once we were all god's creatures, but that, of course, i was not able to understand at the time. i did not know if it included the chaplain. i think i must now tell a little story of myself, if you will not think me conceited. it is about a small matter that happened at cambridge. one day a very amiable but dreadfully noisy advocate was cross-examining a witness, as i thought, rather angrily, because the man would not say exactly what he wanted him to say. my lord did not take notice of this, and it went on until i thought i would call his attention to the counsel's manner, and, accordingly, gave a growl--merely a growl of inquiry. brown--which was the counsel's name--was a little startled at this unexpected remonstrance, and paused, looking up at the judge. "go on," said my lord--"go on, pray," pretending not to know the cause of the interruption. he went on accordingly for a considerable time, with a very noisy speech--so noisy that one could not hear one's self bark, which i did two or three times without any effect. however, at last i made one of my best efforts. but this was bad policy, inasmuch as it attracted too much attention to myself, who had been hitherto unseen. my lord, however, thanks to his presence of mind, had the kindness to say,-- "dear me! i wish people would not bring their dogs into court." then turning to our marshal, he said, "take jack into baron pollock's room"--the baron had just gone in to lunch, for he was always punctual to a minute--"and ask him to give him a mutton-chop." and when, five minutes later, my lord came in, the baron was enjoying his chop, and i was eating my lord's. in another court the judge administered a well-timed rebuke to a flippant and very egotistical counsel, and i could hardly restrain myself from administering another. during the progress of a dreadfully long address to the jury for the defence, he said,-- "why, gentlemen, there is not sufficient evidence against the prisoner _on which to hang a dog_." "and how much evidence, mr. ----, would you consider sufficient to hang a dog?" "that would depend, my lord, as to whom the dog belonged." i thought how like human nature that young man was. i used to have a very good view of all that took place in court, and could tell some very funny as well as interesting stories about persons i have seen. one day i was amused _so_ much that, had i not remembered where i was, i must, like my friends mentioned by robert burns in his "twa dogs," have "barked wi' joy," because i thought it so strange. here was a queen's counsel, a man of so proper a countenance that i do not think it ever smiled in its life, and so very devoted to his profession that he would never think of leaving it to go to a racecourse. i should have as soon expected to meet him in our dogs' home looking for a greyhound to go coursing with on primrose hill,--and here he was standing up on his hind legs, and making an application to the court which my lord was never in his life known to grant. it was the night before the derby, and we always took care to have a full list of cases for that wednesday, for _fear_ the public should think we went to the derby and left the work to look after itself. we generally had about a dozen in pretty early in the afternoon of tuesday, so that the suitors and witnesses, solicitors and all others whom it concerned, might know where they were, and that _they_ could not go to the derby the following day. what a scene it was as soon as this list was published! i used to sit and watch the various applicants sidle into their seats with the most sheepish faces for men i ever saw. in came the first gentleman, flustered with excitement. "would your lordship allow me to make an application?" "yes," said my lord--"yes; i see no objection. what is your application, mr. ----?" i will not give his name. "there is a case, my lord, in to-morrow's list--number ten. it is quite impossible, seeing the number of cases before it, that that case can be reached." "if that is so," said my lord, "there is no necessity for making any application--if you know it is impossible to reach it, i mean to say--" "it is _ex abundanti cautela_, my lord." i think that was the expression, but, as it is not dog-latin, i am not sure. "it is a good horse to run, i dare say," said my lord, "but i don't think he'll win this time." the counsel shook his head and would have smiled, i could see that, only he was disappointed. i felt sorry for him, because his clients had made arrangements to go to the derby. as he was turning disconsolately away my lord spoke with a little more encouragement in his tone and a quiet smile. "we will see later, mr. ----. is your client _unable_ to appear to-morrow?" "i'm afraid so, my lord, quite." "have you a doctor's certificate?" "i am afraid not, my lord; he is not ill." "then you can renew the application later; but understand, i am _determined to get through the list_." that was so like my lord; nothing would turn him from his resolution, if he sat till midnight, and i nearly barked with admiration. then came number six on the list, with the same complaint that it was not likely to be reached. "i'm not so sure," said sir henry. "i have just refused number ten; yours is a long way before that. some of the previous ones may go off very soon; there does not seem to be anything _very long_ in front of you, mr. ----. what's your difficulty about being here?" "the real difficulty, my lord--" and as he hesitated the judge said,-- "you want to be elsewhere?" "frankly, my lord, that is so." "very well; if both sides are agreed, i have no objection. if i am not trying your case i shall be trying some one else's, and it is a matter of perfect indifference to me whose case it is." an hour after in came a brisk junior stating that his leader was unavoidably absent. "what is the application, mr. wallsend?" "there's a case on your lordship's list for to-morrow, my lord." "yes. what number?" "number seven, my lord. i am told number six is a long case, and sure to be fought. my application is that, as that case will last over friday--" "friday? why friday?" there was a little laughter, because it happened to be the oaks day. "i'm told it's a long case, my lord." "yes, but number six has gone, so that you will stand an excellent chance of coming on about two o'clock, perhaps a little before. what is the nature of your case?" "illegal imprisonment, my lord." "very well; if it is any convenience to you, mr. wallsend, i will take it last." by the look of the young man it seemed of no great convenience. "that will give your witnesses time to be here, i hope." the counsel shook his head, and then began to say that the fact was that his client had an engagement, and his lordship would see it was the great race of the year. "i do not like these applications made in this random manner. i am willing to oblige the parties in all cases if i can, but these constant motions to postpone interfere very much with the public convenience, and i mean to say that the public are to be considered." now came the gentleman who never attended races, and devoted himself to business. he could not have told you the name of a horse to save his life. but he also made his application to postpone a case until thursday. delightful day, thursday; such a convenient day, too--between the derby and the oaks. said my lord, who was very friendly to the learned counsel, and liked him not only as a member of his old circuit, but as a brother bencher and a clever advocate,-- "oh, i see; i see where _you_ want to be to-morrow." "my lord!" it was no use; in spite of the gentleman's remonstrance and protestations, he said,-- "you may go, mr. ----, and i hope you will enjoy yourself." i need hardly say nothing was left of the list by twelve o'clock the next day, and sir henry had the honour of going in the royal train and dining at marlborough house in the evening. i ought, perhaps, to mention that there was a case proceeding when all these interruptions took place. i don't know the name, but two counsel were in it, one of whom was remarkable for the soul of wit which is called _brevity_, and the other was not. one was frank lockwood, q.c., a very amusing counsel, whom i always liked, because he often sketched me and my lord in pen and ink. mr. jelf, q.c., was the other learned counsel. although i liked most of the barristers, i often wished i could teach them the invaluable lesson _when to leave off_. it would have saved many a verdict, and given me the opportunity of hearing my own voice. lockwood was cross-examining, and appeared to me dealing rather seriously with jelf's witnesses, who were a pious body of gentlemen, and prided themselves, above all things, on speaking the truth, as though it was a great credit not to commit perjury. at last mr. jelf, tired with being routed in so ruthless a manner, cried in a lamentable voice,-- "pray, pray, mr. lockwood!" "so i do," said lockwood--"so i do, mr. jelf, at fitting and proper times." chapter xxxiv. two tragedies. [the _daily telegraph_, speaking of the necessity for justice sometimes "to strip the bandage from her eyes and look into the real merits of a case, mentions the following case as showing sir henry's unequalled knowledge of human nature and the sound equity of his decrees:-- "a young, respectable woman had been led away by a villain, who was already married, and under a promise of marriage had betrayed her. he induced her to elope with him, and suggested that she should tear a cheque out of her father's cheque-book and forge his name. so completely was she under his influence that she did so. he sent her to different banks to try and cash it, but it was not till she got to a local bank, where she was known, that this was accomplished. the cheque was for £ . but the seducer never obtained the money; the girl was apprehended before she reached him. "sir henry openly expressed his strong sympathy for the unhappy girl, and ordered her to be bound over in her own recognizance of £ , to come up for judgment when called upon."] during the early years of my tenure of office as a criminal judge i became, and still am, firmly impressed with the belief that to enable one filling that office to discharge the twofold duty attached to it--namely, that of trying the issue whether the crime imputed to the prisoner has been established by legal evidence, and if so, what punishment ought to be imposed upon the prisoner, assuming the presiding judge to be the person to determine it--it is absolutely essential that he should keep the whole of the circumstances in his mind and carefully weigh every fact which either forms an element in the constitution of the offence itself or has a substantial bearing as affecting the aggravation or mitigation of the punishment; for it is not only essential that these matters should be known to and appreciated by the judge who tried the case, but that they may be also presented for the information of the home secretary, who ought to be acquainted with them, so that he may form a satisfactory view of the whole of the circumstances surrounding the case. a strange story that will ever stand out in my memory as one of the most dramatic of my life was that of a young lady who was a professional nurse at the general hospital at liverpool. she was young, clever, and, i believe, beautiful, as well as esteemed and loved by all who knew her. she had become engaged to an engineer, and it had been arranged that she should pay a visit to her mother in nottingham on a friday, so as to acquaint her with their engagement, the intended husband having arranged to come on the following monday. the parents were poor, respectable people, and the girl herself was poor, so that she had no change of attire, but went in her professional nurse's dress. it was her intention, however, to buy an ordinary dress at nottingham. there was a dressmaker in that city whom her mother knew, and with whose children in their early days her daughter had played. accordingly in the evening the nurse with a younger sister went to the cottage to make the necessary arrangements. while she was there the son of the dressmaker came in, and was at once attracted by the beauty and the manner of the girl. as they had known one another in childhood, it was not surprising that they should talk with more familiarity than would have been the case had they been strangers. when the nurse rose to go, the young man asked permission to accompany her to her mother's. she declined, but he persisted in his request. this man was a clever mechanic, and had invented a machine for making chenille. sad to say, this invention he used for the purpose of inveigling the girl into his workshop, which was situated on the second floor of an extensive range of warehouses in a yard at nottingham. he asked her to come on the monday morning, and when she informed him that her lover was to come by the . train at nottingham station, he said if she came at eleven she would have plenty of time to see his invention, and then meet him. she at last consented. i now come to a series of facts of a sensational character. on the monday morning she went, according to the appointment, and was seen to go with this man up a flight of steps which led from the yard to the first floor. the door opened on to the landing outwardly. in about a quarter of an hour after she was seen staggering down the steps, and crossing the yard in the direction of the street. in the street she fell, and was conveyed to a neighbouring house. she was afterwards taken to a hospital. in the course of some minutes the man himself came down the steps, and was informed that a girl had been seen coming out of his premises bleeding, and had been taken to a cottage. "was there?" said he, and walked away. in the afternoon he was apprehended. he said he was very sorry, but that he was showing the girl a little toy pistol, and that it had gone off: quite accidentally. he wished to be taken to the hospital where she was. the magistrate in the meanwhile had been informed of the occurrence, and with his clerk attended at the hospital to take her dying deposition. there was an amount of skill and ability about the prisoner which was somewhat surprising to me, who am seldom surprised at anything. "did you not think it was an accident?" he asked. the dying girl answered, "yes." in re-examination by the magistrate's clerk at the end of the business, the following answer was elicited,-- "i thought it was an accident before the second shot was fired." the extraordinary part of this story, to my mind, is that the able counsel--and able he indeed was who defended him--treated the matter as the most frivolous prosecution that was ever instituted. i know that he almost laughed at the idea of murder, and, further, that the junior counsel for the prosecution treated the charge in the same manner, and said that, in his opinion, there was no case. the man was indicted for wilful murder, and i am bound to say, after reading the depositions, i could come to no other conclusion than that he was guilty of the most cruel and deliberate murder, if the depositions were correct. i went with the counsel on both sides to view the scene of the tragedy, and it was agreed that the counsel for the prosecution should indicate as well as he could the case for the crown by merely stating undisputed facts in connection with the premises. the flight of steps, as i have said, led from the courtyard to the first landing. the door opened outwards, and the first visible piece of evidence was that some violence had been exercised in forcing open the door on the occasion of some one making his or her escape from the building, for the staple into which the bolt of the lock had been thrust showed that the door had been locked on the inside, and that the person coming from the premises must have used considerable force in breaking through. the key was not in the lock, neither had it fallen out, or it would have been found somewhere near. it had evidently been taken out and secreted, because it was found at the bottom of a dustbin a long way off from the staircase and in the room occupied by the prisoner. there was one additional fact at this part of the view which i must mention. a bullet was picked up near the door. it had struck the opposite wall, and then glanced off and hit the other wall close to the door. the bullet had been fired from the landing above; this was indicated by the direction as it glanced along the wall, and, further, by the mark it had left of its line of flight from the landing above, for it had struck against the low ceiling of that spot as though the person firing had fired in a hurry and had not taken sufficient aim to avoid it. it might be taken, therefore, that the person firing was not used to firearms, or he would not have hit what might be called the ceiling. the bullet was produced by the chief constable. on reaching the second landing, the mark of the bullet in the lintel showed clearly that it had been fired in the direction of some object below--some one, probably, descending the stairs. on turning into the factory on this floor, which was quite empty, i saw on the wall near the doorway the mark of another bullet which had rested near and was found by the police. it was a bad aim, and showed, therefore, that the person who fired it was unused to firearms. we went to the next room, into which we ascended by six steps; it was clear that it was from the head of these stairs that the course of the bullet was directed; its elevated position and the angle of incidence showed this. but as neither of these bullets had struck the deceased, for there was no mark of any kind to prove it, there was another bullet to be accounted for, and as the prisoner said that the pistol went off by accident, two or three matters had to be considered. where was the spot where the accident occurred? and was aim actually taken? the bullet had entered the hinder part of the neck, had taken a downward direction, and lodged in the spine. it did not, therefore, go off while he was explaining the pistol to her, otherwise it would have struck her at any other place than where it did. moreover, she had run in a state of intense fright the moment she was wounded--had commenced to run before, in fact, having escaped from the clutches of her murderer, for the skirt of her dress was torn from the gathers. it was proved that the prisoner had bought the pistol on the saturday night, that he was unused to firearms, for he had to ask the man who sold it to explain the mode of using it. he was heard practising with it on sunday, and when the accident occurred it was proved that the interval between the first and second shots exactly accounted for the space which intervened between the respective spots where the firing must have taken place. much was made of the fact that the poor girl had said she thought it was an accident, but i had to call the learned counsel's attention to the statement at the end of her examination, which was this: "i thought at first it was an accident, for i could not believe he could be so cruel, but after the _second shot_ i believed he meant to kill me." a somewhat novel incident occurred during the examination for the prosecution. a wire stand had been dressed with the girl's clothes to show where the lower part of the dress had been torn from the gathers. it was placed on the table, and no doubt exactly resembled the girl herself. the prisoner was so much affected that he shuddered, and had to be supported. he was condemned to death. in the house of commons and out of it sympathy was, of course, aroused, not for the unhappy girl who had been sent suddenly to her account, but for the lustful brute who had murdered her. a question was asked of the secretary of state for the home department as to the prisoner being insane, and whether there was not abundant evidence of insanity at the trial. the counsel for the prosecution wrote to the home secretary and requested him to lay his letter before the prisoner's counsel to ascertain whether he agreed with it. the letter was to this effect: "not only was there no evidence of insanity, but the prisoner's counsel based his defence entirely upon the fact that there was no suggestion that the man was or ever had been insane. he must have been insane, argued the counsel, if he had committed a brutal murder of that kind; there was no insanity, and therefore it was an accident." the humane questioner of the home secretary left the prisoner after that statement to his well-deserved fate. * * * * * i recollect at one gloucester assize a man was tried before me for the murder of a woman near bristol. the prisoner had given his account of the tragedy, and said he had made up his mind to kill the first woman he met alone and unprotected; that is to say, he had made up his mind to kill somebody when there was no witness of the deed. humanitarians for murderers might call this insanity. he went forth on his mission, and saw a woman coming towards him with a baby. he instantly resolved to kill both, and probably would have done so but for the fact that some one was seen coming towards him in the distance. the woman and child therefore escaped, the person he had seen in the distance also passed by, and then he waited in the lane alone. in a little time a poor woman came along. the ruffian instantly seized her, cut her throat, and killed her on the spot. no sooner had he accomplished his purpose than a young farmer drove along in his cart, and seeing the dead body in the road, and the murderer a little way off, jumped out of his cart and arrested him. a little farther on the road there was a labouring man, who had not been visible up to this moment, breaking stones. "look after this man," said the farmer; "he has committed murder. keep him safe while i go to the village and get a constable." "all right," said the labourer; "i'll keep un." as soon as the farmer was gone the labourer and the murderer got into conversation, for they had to while away the time until the farmer had procured the constable. "why," asked the stone-breaker, "what have you been a-doin' of?" "killin' a woman," answered the murderer. "killin' a woman!" said the mason. "why, what did you want to kill a woman for? she warn't your wife, was she?" "nay," answered the murderer, "or i should ha' killed her afore." the want of motive is always a strong argument with humanitarians, who pity the murderer and not the victim. i heard no particle of sympathy expressed for the poor woman, but there was abundance of commiseration for the fiend who had perpetrated the terrible deed. there never was any _adequate_ motive for murder, but there was never a deed committed or any act performed without motive. insanity on the ground of absence of motive was set up as a matter of course, but insanity should be based on proof apart from the cruelty of the act itself. it was a premeditated crime, a bloodthirsty desire to wreak his malice on some one; but beyond the act, beyond the malignant disposition of the man, there was no evidence whatever of insanity. i refused to recommend him to the royal clemency on that ground, or on any ground, for there was not the smallest pretence for saying it was not a deliberate cold-blooded murder. and the man was rightly hanged. society should be protected from murderers. this may be hard dealing with the enemies of society, but it is just to society itself. i was never hard on a prisoner. the least circumstance in mitigation found in me a hearty reception, but cruelty in man or woman an unflinching judge. take another case. in gloucestershire a man was convicted of killing a girl by stabbing her in no less than thirty-eight places. again the humanitarians besieged the home secretary. "no man in his senses would have been so cruel; and there was his conduct in the dock: he was so wild, so incoherent. there was also his conduct in the field where he had committed the deed: he called the attention of the passers-by to his having killed her." and, last of all, "there was the doctor whom the home secretary had consulted after the trial." i was appealed to, and stated my opinion honestly: that i had closely watched the man at the trial, and was satisfied that he was shamming insanity. and he shammed it so awkwardly that there was no doubt whatever that he was sane. another judge was asked about the case who saw only the evidence, and he came to the same conclusion; and i was compelled to report that the doctor who certified that he was insane did so _without having seen him_ as the doctors for the prosecution had at the trial and before. he was hanged. chapter xxxv. the st. neots case. this is the last trial for murder that i presided over. the object is not to show the horrible details of the deed, but my mode of dealing with the facts, for it is in the elimination of the false from the true that the work of a judge must consist, otherwise his office is a useless form. i shall give this case, therefore, more in detail than i otherwise should. the case was that of horsford, in the year , at huntingdon assizes. i say now, long after the event, the murderer was not improperly described by the _daily news_ as the greatest monster of our criminal annals, and yet even in that case some kind-hearted people said i had gone quite _to the limits of a judge's rights_ in summing up the case. let me say a word about circumstantial evidence. some writers have spoken of it as a kind of "dangerous innovation in our criminal procedure." it is actually almost the only evidence that is obtainable in all great crimes, and it is the best and most reliable. you may draw wrong impressions from it, i grant, but so you may from the evidence of witnesses where it is _doubtful_; but you cannot fail to draw the right ones where the facts are not doubtful. if it is capable of a wrong inference, a judge should be absolutely positive in his direction to the jury not to draw it. i have witnessed many great trials for murder, but do not remember one where there was an eye-witness to the deed. how is it possible, then, to bring home the charge to the culprit unless you rely on circumstantial evidence? circumstantial evidence is the evidence of circumstances--facts that speak for themselves and that cannot be contradicted. circumstances have no motive to deceive, while human testimony is too often the product of every kind of motive. the history of this case is extremely simple. the accused, walter horsford, aged thirty-six, was a farmer of spaldwick. the person murdered, annie holmes, was a widow whose age was thirty-eight years. she had resided for several months at st. neots, where she died on the night of january . she had been married, and lost her husband thirteen years ago. on his death he left two children, annie and percy. the latter was sixteen years of age and the girl fourteen. the prisoner was a cousin of the deceased woman. while she lived at stonely the man had been in the habit of visiting her, and had become an intimate member of the family. in the month of october the prisoner was married to a young woman named bessie ----. the widow with her two children, and a third, which it would be idle affectation to suggest was the offspring of her late husband, went to reside at st. neots in a cottage rented at about £ a year. the prisoner wrote to annie holmes on at least two occasions. towards the close of the year annie holmes suspected herself to be pregnant. she was anxious not to bring another child into the world, and had some communication with the prisoner on the subject. on january he wrote to her that he would come and make some arrangement. the woman was deceived as to her condition, but that made no difference with regard to the crime. the letter went on to state: "you must remember i paid you for what i done.... don't write any more letters, for i don't want bessie to know." on december he purchased from a chemist to whom he was a stranger, and who lived at thrapston, a quantity of poison, alleging that he wanted to poison rats. prisoner called in a gentleman as a reference to his respectability, as the chemist had refused to sell him the poison without. at last a small parcel was supplied. it was entered in a book with the prisoner's name, and he signed the book, as did also the gentleman who was his introducer. the poison was strychnine, arsenic, prussic acid, and carbolic acid. no less than grains of strychnine were supplied. he had written to say he would come over on the friday which followed january . there is no reason to suppose he did not fulfil his promise. on the friday the woman was suffering from neuralgia. in the evening, however, she was in her usual health and spirits, and did her ironing up to eight o'clock. she went to bed between half-past nine and ten, and took with her a tumbler of water. in ten minutes the little girl and her brother went upstairs. they went to the mother, who was in bed with her child. the tumbler was nearly empty. the mother asked for a "sweet," which the little girl gave. after this annie got into bed; the mother began to twitch her arms and legs, and seemed in great pain. dr. turner was sent for, as she got worse. his assistant, dr. anderson, came, and, watching the patient, noticed that the symptoms were those of strychnine poisoning. she was dying. before he could get to the surgery and return with an antidote the woman was dead. she who had been well at half-past nine was dead before eleven! the police were communicated with, and a constable searched the house. turning up the valances of the bed, he found a piece of paper crumpled up; this was sent to an analyst on the following day. an inquest was held and a post-mortem directed. horsford at the inquest swore that he had never written to the deceased or visited her. on the evening of saturday the th, after the post-mortem, mrs. hensman and another woman found between the mattress and the bed a packet of papers. these were also submitted for analysis. one of them contained grains of strychnine; another had crystals of strychnine upon it. there was writing on one of the packets, and it was the handwriting of the prisoner; it said, "take in a little water; it is quite harmless. will come over in a day or two." on another packet was written: "one dose; take as told," also in the prisoner's handwriting. the body had been buried and was exhumed. three grains of strychnine were found by the county analyst in such parts of the stomach as were submitted to him. dr. stevenson took other parts to london, and the conclusion he came to was that at least grains must have been in the body at the time of death, while / grain has been known to be fatal. there was a singular circumstance in the defence of this case, one which i have never heard before or since, and that was a complaint that the counsel for the prisoner was "twitted" by the crown because he had not called _evidence for the defence_. the jury were solemnly asked to remember that if one jot or tittle of evidence had been put forward, or a single document put in by him, the prisoner's counsel, he would _lose the last word on behalf of the prisoner_! of course, counsel's last word may be of more value than some evidence; but the smallest "jot or tittle" of evidence, or any document whatever that even _tends_ to prove the innocence of the accused, is of more value than a thousand last words of the most powerful speaker i have ever listened to. and i would go further and say that evidence in favour of a prisoner should never be kept back for the sake of the last word. it is the bounden duty of counsel to produce it, especially where evidence is so strong that no speech could save the prisoner. neither side should keep back evidence in a prisoner's favour. i said to the jury,-- "we are assembled in the presence of god to fulfil one of the most solemn obligations it is possible to fulfil, and i will to the best of my ability assist you to arrive at an honest and just conclusion. "the law is that if a man deliberately or designedly administers, or causes to be administered, a fatal poison to procure abortion, whether the woman be pregnant or not, and she dies of it, the crime is wilful murder. "you have been asked to form a bad opinion of this deceased woman, but she had brought up her children respectably on her slender means, and there was no evidence that she was a loose woman. it more than pained me when i heard the learned counsel--_instructed by the prisoner_--cross-examine that poor little girl, left an orphan by the death of the mother, with a view to creating an impression that the poor dead creature was a person of shameless character. "again, counsel has commented in unkind terms on the deceased woman, and said the prisoner _had no motive_ in committing this crime on a woman whom he valued at half a crown. "he might not, it is true, care half a crown for her. it is not a question as to what he valued the woman at; we are not trying that at all; but it showed there _was_ a motive. "i have not admitted a statement which the woman made while in her dying state, because she may not fully have realized her condition. probably you will have no doubt that, by whomsoever this fatal dose was administered, there is only known to medical science one poison which will produce the symptoms of this woman's dying agonies. one thing is surprising at this stage--that immediately after death the door of the house was not locked, and while the body was upon the bed a paper of no importance was found, and that afterwards several relatives went in. the object of the cross-examination was to show that some evil-disposed person had entered the house and placed things there _without any motive_. but whoever may have gone into that house, there was one person who _did not go_--one who, above all others, owed deceased some respect--and that is the prisoner; and unless you can wipe out the half-crown letter from your mind, you would have expected a man on those intimate terms with the poor woman to have gone and made some inquiries concerning her death. he did not go; he was at the falcon hotel at huntingdon, and a telegram was sent telling him to fail not to be at the inquest. "at the inquest he told a deliberate lie, for he swore he had never written to the woman, or sent her anything, or been on familiar terms with her. he had written to her, and if his letter did not prove familiar terms, there was no meaning in language. "with regard to the prisoner's alleged handwriting on the packets and papers found under the woman's bed and elsewhere, i must point out to you that here is one on which is written, 'take in a little water; it is quite harmless. will come over in a day or two.' "this was written on a buff paper, which dr. stevenson said must have contained grains of strychnine, sufficient to kill thirty-five persons, and the direction written was, 'one dose; take as told.' "these inscriptions were sworn to by experts as being in the prisoner's handwriting." here i pointed out the alleged resemblances in the characters of the letters, so that the jury might judge if the prisoner wrote them. "if the prisoner wrote the words 'take as told,' you must ask yourselves the meaning of it. "also, you will ask whether it was not a little strange that the death occurred on that very friday night when he said he would go over and see her. again, the word 'harmless' is of the gravest character, seeing that within the folds of that paper were grains of a deadly powder, which even for rat-powder would be mixed with something else. "again, as to motive, upon which so much stress has been laid by the defendant's counsel. if the prisoner had no motive, who else had? is there a human being on earth who had ill-will towards her, or anything to gain by her death? the learned counsel carefully avoided suggesting any one; nor could he suggest that any one in the neighbourhood wrote the same handwriting as the prisoner. i will dismiss the theory that some one had imitated the prisoner's writing in order to do him an injury, and ask if you can see any reason for any one else giving the woman the powder. "there is one fact beyond all dispute: in december the prisoner bought a shilling's worth of strychnine. he said he bought it for rats, but no one on the farm had been called to prove it. what has been done with the rest of the powder? "where was he on that friday? his counsel said he could not prove an _alibi_. but if he was at spaldwick after saying he was going to st. neots to see this poor woman, he _could_ have proved it. "the prisoner's counsel said that the accused did not speak of the woman's murder after the inquest, and said it was not necessary; he did not understand the 'familiar jargon' of the law courts. "the familiar jargon of the law courts, gentlemen, is not quite the phrase to use with reference to our judicial proceedings. the law courts are the bulwark of our liberties, our life, and our property. our welfare would be jeopardized, indeed, if you dismiss what takes place in them as 'familiar jargon.' "the question is whether the charge has been so reasonably brought home to the prisoner as to lead you in your consciences to believe that he is guilty. if so, it is your duty to god, your duty to society, and your duty to yourselves, to say so." such was the summing up that was arraigned by the humanitarian partisans of the prisoner. if a judge may not deal with the fallacies of a defence by placing before the jury the true trend of the evidence, what other business has he on the bench? and it was for thus clearly defining the issue that some one suggested a petition for a reprieve, on the ground that the evidence was _purely circumstantial_, and that my "summing up was against _the weight of the evidence_." truly a strange thing that circumstances by themselves shall have no weight. but there was another strange incident in this remarkable trial: _the jury thanked me for the pains i had taken in the case_. i told them i looked for no thanks, but was grateful, nevertheless. i have learnt that the jury, on retiring, deposited every one on a slip of paper the word "guilty" without any previous consultation--a sufficient indication of their opinion of the _weight_ of the evidence. this was the last case of any importance which i tried on circuit, and if any trial could show the value of circumstantial evidence, it was this one. it left the identity of the prisoner and the conclusion of fact demonstrable almost to mathematical certainty. a supposed eye-witness might have said: "i saw him write the paper, and i saw him administer the poison." it would not have added to the weight of the evidence. the witness might have lied. chapter xxxvi. a night at nottingham. ever since the establishment of itinerant justices, now considerably over seven hundred years, going circuit has been an interesting and important ceremony, attended with great pomp and circumstance. i had intended to give a sketch of my own drawing of this great function, but an esteemed friend, who is a lover of the picturesque, has sent me an interesting description of one of my own itineraries, and i insert it with the more pleasure because i could not describe things from his point of view, and even if i could, might lay myself open to the charge of being egotistical. "when sir henry hawkins stepped into the train with his marshal, he felt all the exuberance which a judge usually experiences on going circuit. "going circuit is a pleasant diversion, and may be a delightful holiday when the weather is fine and cases few. i am not speaking of those northern towns where hard labour is the portion of the judicial personage from the time he opens the commission to the moment when he turns his back upon his prison-house, but of rural assize towns like warwick and bedford or oakham, where the judge takes his white gloves, smiles at the grand jury, congratulates them on the state of the calendar, and goes away to some nobleman's seat until such time as he is due to open the commission in some other circuit paradise where crime does not enter. "at lincoln station on this present occasion there is a goodly crowd outside and in, some well dressed and some slatternly, some bareheaded out of respect to the judge, and others of necessity, but all with a look of profoundest awe. "but as they wait the arrival of the train, all hearts are beating to see the judge. alas for some of them! they will see him too soon and too closely. "most conspicuous is the fat and dignified coachman in a powdered wig and tam-o'-shanter cap, and the footman with the important calves. clustered along the platform, and pushing their noses between the palisade fencing, seem gathered together all the little boys of lincoln--that is to say, those who do not live at the top of steep hill; for on that sacred eminence, the mount zion of lincolnshire, are the _cloisters_ and the closes, where are situated the residences of canons, archdeacons, and other ecclesiastical divinities. the top of this mountain holds no communion with the bottom. "on the platform--for the signal has been given that the judicial train is entering the station--ranged in due order are the sheriff of lincoln, in full robes, his chaplain in full canonicals, and a great many other worthy dignities, which want of space prevents my mentioning in detail. all are bareheaded, all motionless save those bosoms which heave with the excitement of the occasion. "although the chaplain and the sheriff hold their hats in their hands, it is understood in a well-bred town like lincoln there will be no cheers, only a deep, respectful silence. "and so, amid a hush of expectation and a wondering as to whether it's _orkins_, some saying one thing and some another, the train draws slowly in; a respectful porter, selected for the occasion, opens the door, and out leaps--jack. "then bursts from the crowd a general murmur. 'there 'e is! see 'im, bill!' cries one. 'there's orkins! see 'im? there 'e is; that's orkins behind that there long black devil!' "he was wrong about the black devil, for it was the sheriff's chaplain, who will preach the assize sermon next sunday in the cathedral." [a somewhat humorous scene once took place at nottingham. an indefatigable worker on circuit, sir henry seemed to have the constitution of the wandering jew and the energy of radium. no doubt he had much more patience than was necessary, for it kept him sitting till the small hours of the morning, and jurors-in-waiting and attendants were asleep in all directions. he was the only one wide awake in court. even javelin-men fell asleep with their spears in their hands; the marshal dozed in his chair, ushers leaned against the pillars which supported the gallery, while witnesses rubbed their eyes and yawned as they gave their evidence. a case of trifling importance was proceeding with as steady a pace as though an empire's fate, instead of a butcher's honour, were involved. one butcher had slandered another butcher. the art of advocacy was being exercised between an irishman and a scotchman, which made the english language quite a hotch-potch of equivocal words and a babel of sounds. the slander was one that seemed to shake the very foundations of butcherdom throughout the world--namely, an insinuation that the plaintiff had sold australian mutton for scotch beef; on the face of it an extraordinary allegation, although it had to find its way for the interpretation of a jury as to its meaning. amidst this costly international wrangle the judge kept his temper, occasionally cheering the combatants by saying in an interrogative tone, "yes?" and in the meanwhile writing the following on a slip of paper which he handed to a friend:-- "great prize competition for patience. hawkins first prize. job honourable mention." much earlier in the evening an application had been made by way of finding out how far the judge "would go," as the man tests the wheels of an express. every wheel had a good ring. he was prepared for a long run. every case was to be struck out if the parties were not there. after a while a feeling of compunction seemed to come over him. "one moment," said he, after the case in hand had proceeded for an hour or so. "this case seems as if it will occupy some time; it is the last but three of the common jury cases, and--i mean to say--if the gentlemen of the special jury like to go till--seven o'clock this evening, they may do so, or they may amuse themselves by sitting in court listening to this case." there was a shuffling of feet and a murmur like that of bees. "gentlemen," he said, "do whatever will be most agreeable to yourselves. i only wish to consider your comfort and convenience." "a damned pretty convenience," said a special juryman, "to be kept here all night!" "return punctually at seven, gentlemen, please; you are released till then." any person who knows nottingham and has to spend in that city two weary hours, between o'clock and p.m., wandering up and down that vast market-place, will understand the state of mind to which those special jurymen were reduced when they indulged in audible curses. there was, however, an element in this condition of things which his lordship had not taken into consideration, and that was the _bar_. several members were unnecessarily detained by this order of the court. their mess was at the george hotel; at seven they must be in court or within its precincts; at seven they dined. they chose the precincts, and sending for their butler, ordered the mess to be brought to the vacant judge's room, the second judge having gone away. at seven the mess was provided, and those who were not engaged in court sat down with a good appetite and a feeling of delightful exultation. meanwhile his lordship proceeded with his work, while the temperature was °. juries wiped their faces, and javelin-men leaned on their spears. now and then the sounds of revelry broke upon the ear as a door was opened. at ten his lordship rose for a few moments, and on proceeding along the corridor towards his room for his cup of tea, several champagne bottles stood boldly in line before his eyes. he also saw two pairs of legs adorned with yellow stockings--legs of the sheriff's footmen waiting to attend his lordship's carriage some hours hence. the scene recalled the scenes of other days, and the old times of the home circuit came back. should he adjourn and join the mess? no, no; he must not give way. he had his tea, and went back to court. he was not very well pleased with the cross-examination of the irish advocate. "do you want the witness to contradict what he has said in your favour, mr.----?" "no, my lord." "why do you cross-examine, then?" now the catch of an old circuit song was heard. "call your next witness, mr. jones. why was not this case tried in the county court?" (sounds of revelry from the bar mess-room.) "keep that door shut!" "may the witnesses go in the third case after this, my lord?" "i don't know how long this case will last. i am here to do the work of--" ("_jolly good fellow_!" from the mess-room.) "keep that door shut!" "what is your case, mr.----?" "it's slander, my lord--one butcher calling another a rogue; similar to the present case." "does he justify?" "oh no, my lord." it was now on the stroke of twelve. "i don't know at what time your lordship proposes to rise." "renew your application by-and-by." ("_we won't go home till morning_!" from the mess-room.) "keep that door shut! how many more witnesses have you got, mr. williams?" mr. williams, counting: "about--ten--eleven--" "and you, mr. jones?" "about the same number, my lord." it was twenty minutes to one. "i shall not sit any longer to oblige any one," said sir henry, closing his book with a bang. the noise woke the usher, and soon after the blare of trumpets announced that the court had risen, as some wag said, until the day after yesterday.] chapter xxxvii. how i met an incorrigible punster. as the midland circuit was perhaps my favourite, although i liked them all, there would necessarily be more to interest me there than on any other, and at our little quiet dinners, for which there was no special hour (it might be any time between eight o'clock in the evening or half-past one the next day), there were always pleasant conversations and amusing stories. with a large circle of acquaintances, i had learnt many things, sometimes to interest and sometimes to instruct. although i never sat down to open a school of instruction, a man should not despise the humblest teaching, or he may be deficient in many things he should have a knowledge of. there was once an old fox-hunting squire whose ambition was to be known as a punster. there never was a more good-natured man or a more genial host, and he would tell you of as many tremendous runs he had had as herne the hunter. after-dinner runs are always fine. the squire loved to hunt foxes and make puns. we were sitting on a five-barred gate one evening in his paddocks, and while i was admiring the yearlings, which were of great beauty, i suddenly saw looking over his left shoulder the most beautiful head of a thoroughbred i ever beheld, with her nose quite close to his ear. "halloa, my beauty!" said he. "what, _saltfish_, let me see if i've a bit of sugar, eh, _saltfish_?--sugar--is it?" his hand dived into the capacious pocket of his shooting-coat and brought out a piece of sugar, which he gave to the mare, and then affectionately rubbed her nose. "there, _saltfish_--there you are; and now show us your heels." i knew by his mentioning the mare's name so often that there was a pun in it, so i waited without putting any question. after a while he said (for he could contain his joke no longer),-- "judge, do you know why i call her _saltfish_?" "not the least idea," said i. "ha!" he explained, with a prodigious stare that almost shot his blue globular eyes out of his head: "because she is such a capital mare for a _fast day_! ha, ha!" suddenly he stopped laughing from disappointment at my not seeing the joke. he repeated it--"fast day, fast day"--then _glared at me_, and his underlip fell. at last the old man tossed his head, and whipped his boot with his crop. i have no doubt i deprived that man of a great deal of happiness; for if anything is disappointing to a punster, it is not seeing his joke. he had not done with me yet, however, and before abandoning me as an incorrigible lunatic, asked if i would like to see naples. "naples! by all means, but not at this time of year." "oh, i don't mean the town--no, no; but if you don't mind a little mud, i'll show you naples. come along this lane." "watercourse, you mean. i don't mind a little mud," said i; "it washes off, whoever throws it"--and i looked to see what he thought of that, knowing he would tell it at dinner. "good!" said he; "devilish good! wash off, no matter who throws it--devilish good!" down we came off the gate, and through the mud we went, he leading with a fat chuckle. "you don't see the joke, hawkins--you don't see the joke about that fast day;" and he gave me another look with his great blue eyes. i didn't know it was a joke; i thought it was the mare's name, and i heard him mutter "damn!" "this is the way," he said angrily. we seemed to travel through an interminable cesspool, but at last reached the open, and coming to another gate, he extended his arms on it, after the manner of a squire, and said,-- "there, there's _naples_. isn't she lovely?" "where?" i asked. "there; and a prettier mare you never saw. look at her!" "she's a beauty--a real beauty!" i exclaimed. he breathed rather short, and i felt easy. his manner, especially the distending of his cheeks, showed me that he was about to bring forth something--a pun of some sort. "do you know," he asked, with another turn of his eyes, "_why_ i call her _naples_?" "no, i haven't the faintest idea. naples? no." "well," he said, "i've puzzled a good many. i may say nobody has ever guessed it. i call that mare _naples_ because she's such a beautiful _bay_." i was glad i was not sitting on the gate, for i might have fallen and broken my neck. as i felt his eyes staring at me i preserved a dignified composure, and had the satisfaction of hearing him mutter again, "damn!" "this is our way," said he. i have no doubt he thought me the dullest fool he ever came near. our adventures were not ended. we went on over meadow and stile until we came to "the park," a tract of land of great beauty and with trees of superb growth. he was sullen and moody, like one whose nerves had failed him when a covey rose. i saw it coming--his last expiring effort. in the distance was a beautiful black mare, such as might have carried dick turpin from london to york. he was watching to see if i observed her, but i did not. "look," he said, in his most coaxing manner, "don't you see that mare yonder--down there by the spinny?" "what," i said, "on the left?" "down there! there--no, a little to the right. look! there she is." "oh, to be sure, a pretty animal." "pretty! why, there's no better bred animal in the kingdom. she's by ---- out of ----." "she ought to win the oaks." "come, now, _isn't_ she superb?" "a glory. a novelist would call her a _dream_." "ah, i thought you would say so. you know what a horse is." "when i _see_ one," i said. "i thought you said this was a mare." this is what the squire thought,-- "well, of all the dull devils i ever met, you are the most utterly unappreciative!" he was at his wits' end, although you must be clever if you can perceive the wits' end of a punster. "that's _morning star_," said he. "now do you know _why_ i call her _morning star_?" i answered truthfully i did not. "why," he said, with a merry laugh, "_because she's a roarer_." "what a pity!" i exclaimed. "but i don't wonder at it if she has to carry you and your jokes very far." he took it in good part, and we had a pleasant evening at the hall. he discharged a good many other puns, which i am glad to say i have forgotten. but there was a man present who was a good story-teller. some i had heard before, but they were none the less welcome, while one or two i related were as good as new to my host and old squire fullerton, who had once been high sheriff, and was supposed to know all about circuit business. he prefaced almost everything he said with, "when i was high sheriff," so i asked him innocently enough how many times he had been high sheriff, on which my host, being a quick-witted man, looked at him with a broad grin, while he balanced the nutcrackers on his forefinger. "well," said fullerton, "it was in parke's time." "yes; but which of them?" i asked. "are you alluding to sir alan? they did not both come together, surely." "now, lookee, fullerton," said my old friend, tapping the mahogany with the nutcrackers, as though he was about to say something remarkably clever; "one of 'em, jemmy, had a kind of a cast in one of his eyes--didn't he, judge?" "yes," said i; "but their names were not spelt alike." "no, no!" cried the squire; "i'm coming to that. one eye was a little troublesome at times, i believe--at least they said so in my time when _i_ was high sheriff--and that made him a little ill-tempered at times. now, that judge's name was spelt p-a-r-k-e" (tapping every letter with his nutcrackers), "so the bar used to call him '_parke with an "e"_;' and what do you think they used to call the other, whose name was park?--come, now, judge, you can guess that." i suppose i shook my head, for he said, "why, you told me the story yourself four years ago--ah! it must be five years ago--at this very table, when old squire hawley had laid two thousand on jannette for the leger. 'this is it,' said you; 'they call one of them parke with an "e," and the other park with an "i."'" "very well," i said, after they had done laughing at the way in which my host had caught me; "now i'll tell you what the duke of wellington said one morning. you recollect his grace met with an accident and lost an eye, which was kept in spirits of wine. on asking him how he was, the duke answered,-- "'oh, lord cairns asked me yesterday the same question; and i said, "i am rather depressed, but i believe my eye is in pretty good spirits."'" chapter xxxviii. the tilney street outrage--"are you not going to put on the black cap, my lord?" one evening, while sitting with some friends in tilney street, there was one of the most tremendous explosions ever heard. it seemed as if the world was blown up. but as nothing happened, we did not leave the room, and went on with the conversation. it was not until the next day it was ascertained that an attempt had been made to blow in reginald brett's front door, which was a few houses off, and that it had been perpetrated by some fenians, whose friends had been awarded penal servitude for life for a similar outrage with dynamite. why their anger was directed against mr. reginald brett--a most peaceful and excellent man--it was difficult to say, for he was very kind-hearted, and, above all, the son of the master of the rolls, who never tried prisoners at all, only counsel. having made inquiries the next morning--i don't know of whom, there were such a number of people in tilney street--i was astonished to hear some one say, "they meant to pay _you_ that visit, sir henry." "then _they knocked at the wrong door_," said i. the stranger seemed to know me, and i had a little further conversation with him. it turned out he was a chancery barrister, and a friend of brett's. "why," i asked, "do you think they meant the visit for me?" "well," he answered, "it was." "if it was intended for me," i replied, "i can only say they, were most ungrateful, for i gave their friends all i could." "yes--penal servitude for life." "very well," i added; "if they think they'll frighten me by blowing in reginald brett's front door, they are very much deceived." lord esher, i believe, always considered that _he_ was the object of this attack, and as i had no wish to disturb so comforting an idea, took no further notice, and the fenians took no further notice of me. years after, however, my name was mentioned in parliament in connection with this case; nor was my severity called in question. there were no more explosions in tilney street, but a singular circumstance occurred, which placed me in a position, if i had desired it, to deprive lord esher of the satisfaction of believing that he was the object of so much fenian attention. but if it was a comfort to him or a source of pride, i did not see why i should take it away. a reverend father of the roman church told me that a long while ago a man in confession made a statement which he wished the priest to communicate to me. it was under the seal of confession, and he refused, as he was bound to do, to mention a word. the man persisted in asking him, and he as persistently declined. some considerable time, however, having elapsed, the same man went to the priest, not to confess, but to repeat his request in ordinary conversation. this the father could have no objection to, and the culprit told him that he had undertaken to throw the bomb at the front door of number , but that through having in the gas-light misread the figure, he had placed it against that of number . he begged the priest as a great favour to assure me on his word that the bomb was certainly intended for me, and not for brett. on this subject the _kent leader_ had some interesting remarks on the anarchists as well as their judge. "speaking of dynamite," it said, "we have serious cause for alarm in our free land. the wretches concerned in the abominable outrage of tuesday last cannot be too severely dealt with. it is evident that their intent was against justice hawkins, and the fact that sir henry was the presiding judge at the recent anarchists' trial points the connection between the outrage and other anarchists.... "justice hawkins has been spoken of as a harsh judge. ever since the 'penge mystery' trial many have termed him the hanging judge. we have sat under him on many eventful occasions, and venture the opinion that no one who has had equal opportunity would come to any other conclusion than that he was painstaking and careful to a degree, and particularly in criminal cases formed one of the most conscientious judges on the bench. hanging judge! why, we have seen the tears start to his eyes when sentencing a prisoner to death, and, owing to emotion, only by a masterful effort could his voice be heard. above all, he is a just judge." [many persons were not aware, and thousands are not at the present time, that when a verdict of "wilful murder" is pronounced a judge has no alternative but to read the prescribed sentence of death. if this were not so, the situation would be almost intolerable, for who would not avoid, if possible, deciding that the irrevocable doom of the prisoner should be delivered? in many cases the feelings of the judges would interfere with the course of justice, and murderers would receive more sympathy than their victims, while fiends would escape to the danger of society. and yet that judges have sympathy, and that it can be, and is, in these days properly exercised, the following story will testify. i give the story as lord brampton told it.] in a circuit town a poor woman was tried before me for murdering her baby. the facts were so simple that they can be told in a few words. her baby was a week old, and the poor woman, unable to sustain the load of shame which oppressed her, ran one night into a river, holding the baby in her arms. she had got into the water deep enough to drown the baby, while her own life was saved by a boatman. the scene was sad enough as she stood under a lamp and looked into the face of the policeman, clutching her dead child to her breast, and refusing to part with it. at the trial there was no defence to the charge of wilful murder except _one_, and that i felt it my duty to discountenance. i think the depositions were handed to a young barrister by my order, and that being so, i exercised my discretion as to the mode of defence. in other words, i defended the prisoner myself. in order to avoid the sentence that would have followed an acquittal _on the ground of insanity_, which would have entailed perhaps lifelong imprisonment, i took upon myself to depart from the usual course, and ask the jury whether, _without being insane in the ordinary sense, the woman might not have been at the time of committing the deed in so excited a state as not to know what she was doing_. i thus avoided the technical form of question sane or insane, and obtained a verdict of guilty, but that the woman at the time was not answerable for her conduct, together with a strong recommendation to mercy. this verdict, if not according to the strictest legal quibbling, was according to justice. i was about to pronounce sentence in accordance with the law, which it was not possible for me to avoid, however much my mind was inclined to do so, when the pompous old high sheriff, all importance and dignity, said,-- "my lord, are you not going to put on the black cap?" "no," i answered, "i am not. i do not intend the poor creature to be hanged, and i am not going to frighten her to death." addressing her by name, i said, "don't pay any attention to what i am going to read. no harm will be done to you. i am sure you did not know in your great trouble and sorrow what you were doing, and i will take care to represent your case so that nothing will harm you in the way of punishment." i then mumbled over the words of the sentence of death, taking care that the poor woman did not hear them--much, no doubt, to the chagrin of the high sheriff and to the lowering of his high office and dignity. nothing so enhances a sheriff's dignity as the gallows. [there was a great deal of unlooked-for appreciation of his merits, and from quarters where, had he been a hard judge, one could never have expected it. there was even the observation of the costermonger leaning over his barrow near the assize court when one morning sir henry was going in with little jack. "gorblime, jemmy! see 'im? the ole bloke's been poachin' agin. see what he's got?" it was a brace of pheasants, and not going into court with his gun, but only his dog, it was taken for granted he had been out all night on an unlawful expedition. some one once asked sir henry what was the most wonderful verdict he ever obtained. he answered: "it depends upon circumstances. do you mean as to value?" "and amount." "well, then," he said, "_half a farthing_." some of the company were a little disconcerted. "i'll tell you," said the judge. "there was in our gracious majesty's reign a coinage of _half a farthing_. it was soon discountenanced as useless, but while it was current as coin of the realm i had the honour of obtaining a verdict for that amount, and need not say, had it been paid in _specie_ and preserved, it would in value more than equal at the present time any verdict the jury might have given in that case."] one of the most remarkable trials in which as a judge i have presided was what was known as the muswell hill tragedy. it was a brutal, commonplace affair, and with its sordid details might make a respectable society novel. i should have liked sherlock holmes to have been in the case, because he would have saved me a great deal of sensational development, as well as much anxiety and observation. burglars are usually crafty and faithless to one another. they never act alone--that is, the real professionals--and invariably, while in danger of being convicted, betray one another. such, at all events, is my experience. each fears the treachery of his companion in guilt, and endeavours to be first in disclosing it. in the case i am now speaking of, this experience was never more verified than in the attempt on the part of these two murderers each to shift the guilt on to the other. the ruffians, milsome and fowler, resolved to commit a burglary in the house of an old man who led a lonely life at the suburb known as muswell hill, near hornsey. the sole occupant of the cottage slept in a bedroom on the first floor. in his room was an iron safe, in which he kept a considerable sum of money, close by the side of his bed. in the dead of night the two robbers found their way into the kitchen, which was below the bedroom. they made, however, so much noise as to arouse the sleeper in the room above. the old man rose, and went down into the kitchen, where he found the two prisoners preparing to search for whatever property they might carry away. instantly they fell upon their victim, threw him on to the floor, and with a tablecloth, which they found in the room, and which they cut into strips for the purpose, bound the poor old man hand and foot, and struck him so violently about the head that he was killed on the spot, where he was found the following morning. the prisoners failed to obtain the booty they were in search of, and made off with some trifling plunder, the only reward for a most cruel murder. they escaped for a time, but were at last traced by a singular accident--one of the prisoners having taken a boy's toy lamp on the night of the burglary from his mother's cottage and left it in the kitchen of the murdered man. the boy identified one of the prisoners as the man who had been at his mother's and taken the lamp. the men were jointly charged with the murder before me. each tried to fix the guilt on the other, knowing--or, at all events, believing--that he himself would escape the consequences of wilful murder if he succeeded in hanging his friend. i knew well enough that, unless it could be proved that _both_ were implicated in the murder, or if it should be left uncertain which was the man who actually committed it, or that they both went to the place with the joint intention of perpetrating it if necessary for their object, they might both avoid the gallows. i therefore directed my attention closely to every circumstance in the case, and after a considerable amount of evidence had been given without much result, so far as implicating both prisoners in the actual murder was concerned, an accidental discovery revealed the whole of the facts of the tragedy as plainly as if i had seen it committed. i have said that the tablecover had been _cut_ into strips to accomplish their purpose; and it was clear that a penknife had been used, for one was found on the floor. suddenly my attention was called to the fact that _two_ penknives, which no one had hitherto noticed, were produced. they belonged, not to the prisoners, but to the deceased man, and were usually placed on the shelf in the kitchen. but it came out in evidence, quite, as it seemed, accidentally, that they had been taken from that place, and were found on the floor where the cutting up of the tablecover had been performed, at some little distance from one another; but each knife _by the side of and not far from the deceased man_. they were at my wish handed to me; i also asked for some of the shreds which had bound the dead man. upon examination it seemed that these were the knives that had been used to cut the tablecloth into shreds, and if so, the jury might well assume that _each_ prisoner had used one of the knives for that purpose, for one man could not at the same time use two. the tablecloth had jagged or hacked edges, which satisfied the jury that the knives had been used hurriedly, and that each man had been doing his share of the cutting. it was thus clearly established that both the men were engaged in the murder and equally guilty, and so the jury found by their verdict. whilst they were considering, the bigger of the two, a very powerful man, made a murderous attack upon the other, whom he evidently looked upon as his betrayer, and tried to kill him in the dock. the struggle was a fearful one, but the warders at last separated them. they were both sentenced to death and hanged. [the fact of these men making a noise in entering the house was strongly against them on a question of intent. burglars work silently, and at the least noise decamp, as a rule. in the present case, there being only one old man to contend against, it was easy to silence him as they did, and as they doubtless intended, when they went to the house.] chapter xxxix. several scenes. i think i have said that i had a favourite motto, which was, "never fret." it has often stood me in good stead and helped me to obey it. i was once put to it, however, on my way to open the commission at bangor on the welsh circuit. the assizes were to commence on the following day. it was a very glorious afternoon, and one to make you wish that no assize might ever be held again. i had engaged to dine with the high sheriff, who lived three or four miles away from the town, in a very beautiful part of the country; so there was everything to make one glad, except the assizes. added to all this pleasurable excitement, the chester cup was to be run for in the meanwhile, and i had many old friends who i knew would be there, and whom i should have been glad to meet had it been possible. the sheriff had made most elaborate calculations from his bradshaw and other sources as to the times of departure and arrival by train. i did not know what to do, so arranged with the stationmaster at chester to shunt my carriage till the afternoon, having no doubt i should be able to fulfil my engagements easily. it so happened, however, that the racing arrangements of the railway had been completely disturbed by the great crowds of visitors, and the result was that i did not reach carnarvon at the proper time, and my arrival in that place was delayed for nearly an hour. nevertheless, i opened the commission, and the high sheriff asked me if i would allow him to go on to his house to receive his guests, whom he had invited to meet me, and permit the chaplain to escort me in the performance of my duties. having dressed in full uniform, i got into the carriage with the chaplain, who was quite a lively companion, of an enterprising turn of mind, and desirous of learning something of the world. i could have taught him a good deal, i have no doubt, had i allowed myself to be drawn. my friend had no great conversational powers, but was possessed of an inquiring mind. after we had ridden a little way, to my great amusement he asked me if i had any favourite _motto_ that i could tell him, so that he might keep it in his memory. "yes," said i, "i have a very good one," and cheerfully said, "never fret." this, when i explained it to him, especially with reference to my business arrangements, seemed to please him very much. it was as good as saying, "don't fret because you can't preach two sermons from two pulpits at the same time." he asked if he might write it down in his pocket-book, and i told him by all means, and hoped he would. "excellent!" he murmured as he wrote it: "never fret." he then asked modestly if i could give him any other pithy saying which would be worthy of remembrance. "yes," said i, thinking a little, "i recollect one very good thing which you will do well to remember: never say anything you think will be disagreeable to other persons." he expressed great admiration for this, as it sounded so original, and was particularly adapted to the clergy. "oh," said he, "that's in the real spirit of christianity." "is that so?" i asked, as he wrote it down in his book; and he seemed to admire it exceedingly after he had written it, even more than the other. then he said he really did not like to trouble me, but it was the first time he had had the honour of occupying the position of sheriff's chaplain, etc.; but might he trouble me for another motto, or something that might go as a kind of companion to the others in his pocket-book? this a little puzzled me, but i felt that he took me now for a sage, and that my reputation as such was at stake. i had nothing in stock, but wondered if it would be possible to make one for him while he waited. "yes," said i, "with the greatest displeasure: never do anything which you feel will be disagreeable to yourself." "my lord!" he cried in the greatest glee, "that is by far the best of all; that must go down in my book, it is so practical, and of everyday use." i was, of course, equally delighted to afford so young a man so much instruction, and thought what a thing it is to be young. however, here was an opportunity not to be lost of showing him how to put to the practical test of experience two at least, if not all three, of the little aphorisms, and i said so. "i should be delighted, my lord, to put your advice into practice at the earliest opportunity," he answered. "that will be on sunday," said i, "at twelve o'clock. don't preach a long sermon!" in due time we arrived at the sheriff's house, and there found all the guests assembled and waiting to meet me. i was quite quick enough to perceive at a glance that they had been planning some scheme to entrap me--at all events, to cause me embarrassment. the ladies were in it, for they all smiled, and said as plainly by their looks as possible, "we shall have you nicely, judge, depend upon it, by-and-by." the sheriff was the chief spokesman. no sooner had we sat down to table than he addressed me in a most unaffected manner, as if the question were quite in the ordinary course, and had not been planned. i answered it in the same spirit. "my lord, could you kindly tell us which horse has won the cup?" evidently thinking that i had been to the course. there was a dead silence at this crucial question--a silence that you could feel was the result of a deep-laid conspiracy--and all the ladies smiled. fortunately i was not caught; nor was i even taken aback; my presence of mind did not desert me in this my hour of need; and i said, in the most natural tone i could assume,-- "yes, i was sure that would be the first question you would ask me when i had the pleasure of meeting this brilliant company, as you knew i must pass through chester station; so i popped my head out of the window and asked the porter which horse had won. he told me the judge had won by a length, chaplain was a good second, and sheriff a bad third." the squire took his defeat like a man. i was reminded during the evening of a singular case of bigamy--a double bigamy--that came before me at derby, in which the simple story was that an unfortunate couple had got married twenty years before the time i speak of, and that they had the good luck to find out they did not care for one another the week after they were married. it would have been luckier if they had found it out a week before instead of a week after; but so it was, and in the circumstances they did the wisest thing, probably, that they could. they separated, and never met again until they met in the dock before me--a trysting-place not of their own choosing, and more strange than a novelist would dream of. but there they were, and this was the story of their lives:-- the man, after the separation, lived for some time single, then formed a companionship, and, as he afterwards heard that his wife had got married to some one else, thought he would follow her example. now, if a judge punished immorality, here was something to punish; but the law leaves that to the ecclesiastical or some other jurisdiction. the judge has but to deal with the breach of the law, and to punish in accordance with the requirements of the injury to society--not even to the injury of the individual. i made inquiries of the police and others, as the prisoners had pleaded guilty, and found that all the parties--the four persons--had been living respectable and hard-working lives. there was no fault whatever to be found with their conduct. they were respected by all who knew them. i then asked how it was found out at last that these people, living quietly and happily, had been previously married. "o my lord," said a policeman, "there was a hinquest on a babby, which was the female prisoner's babby and what had died. then it come out afore mr. coroner, my lord, and he ordered the woman into custody, and then the man was took." i thought they had had punishment enough for their offence, and gave them no imprisonment, but ordered them to be released on their own recognizances, and to come up for judgment if called upon. now came _my_ sentence. the clergyman of the parish in which this terrible crime had been discovered evidently felt that he had been living in the utmost danger for years. here these people came to his church, and for aught he knew prayed for forgiveness under the very roof where he himself worshipped. he said i had done a fine thing to encourage sin and immorality, and what could come of humanity if judges would not punish? he denounced me, i afterwards learned, in his pulpit in the severest terms, although i did not hear that he used the same vituperative language towards the poor creatures i had so far absolved. luckily i was not attending the reverend gentleman's ministration, but he seemed to think the greatest crime i had committed was disallowing the costs of the prosecution. that was a direct _incentive to bigamy_, although in what respect i never learned. it sometimes suggested to my mind this question,-- what would this minister of the gospel have said to the divine master when the woman caught "in the very act" was before him, and he said, in words never to be forgotten till men and women are no more, "neither do i condemn thee"? i thought those who loved a prosecution of this kind--whoever it may have been--_ought_ to pay for the luxury, and so i condemned _them_ in the costs. chapter xl. dr. lamson[a]--a case of mistaken identity--a will case. [footnote a: in this and one or two other cases i am pleased to acknowledge my thanks to my esteemed friend mr. charles w. mathews, the distinguished advocate, for refreshing my memory with the incidents.] one of the most diabolical cases which came before me while a judge was one which, although it occupied several days, can be told in the course of a few minutes. i mention it, moreover, not so much on account of its inhuman features as the fact that, in my opinion, dr. lamson led the prosecutors--that is, the government solicitors--into a theory which was calculated by that cunning murderer to save him from a conviction, and it nearly did so. the story is this:--there was in the year a family of five children, one of whom died that year and another in , leaving two daughters and a poor cripple boy of eighteen. he was partially paralyzed, and had a malformation of the spine, so that he was an object of great commiseration. he was of a kind and cheerful disposition, and, excepting his spinal affliction, in good health. he seems to have been loved by everybody. his playmates wheeled him about in his chair so that he might enjoy their pastimes, and even carried him up and down stairs. one of this boy's sisters married a mr. chapman; the other married a man who was a doctor, or passed as one, of the name of lamson. he was a man of idle habits, luxurious tastes, and a wicked heart. he was in debt, had fraudulently drawn cheques when he had nothing at the bank to meet them, and was so reduced to poverty that he had pawned his watch and his case of surgical instruments. by the death of the brother in , the two sisters received each a sum of £ . this boy, percy, received the like amount, and if he should live to come of age would have a further sum of £ , ; but if he died before that period, one-half would go to mrs. chapman and the other half to mrs. lamson, the doctor's wife. lamson had bought a medical practice at bournemouth in , but very soon after writs and executions were issued against him. for three years before percy's death he had been at school at blenheim house, wimbledon. it appeared from his statement while dying that he felt just "the same as i did once before, when i was at shanklin with my brother-in-law," the doctor, "after he had given me a quinine pill." "my throat is burning, and my skin feels all drawn up." this pill, however, did not kill him, but it showed, as subsequent events proved, the murderous design of dr. lamson. on december the boy, being still at school and in good health, was amusing himself with his schoolfellows when his brother-in-law, the prisoner, called. percy was taken into the room to see him. "well, percy, old boy," said the doctor, "how fat you are looking!" the doctor sat down, and percy was seated near him. the visitor then took out of a little bag a dundee cake and some sweets, and cut a small slice of the cake with his penknife. about fifteen minutes afterwards he said to mr. bedbury, the master, "i did not forget you and your boys: these capsules will be nice for them to take nauseous medicines in;" and he took several boxes of capsules from the bag and placed them on the table. one box he pushed towards mr. bedbury, asking him to try them. no one had seen lamson take a capsule out of the box, but he was seen to fill one with sugar and give it to the boy, saying, "here, percy, you are a swell pill-taker." within five minutes after that the doctor excused himself for going so soon, saying if he did not he would lose his train. not long after his departure--that is, between eight and nine--the boy was taken ill and put into bed with all the violent symptoms which are invariably produced by that most deadly of vegetable poisons, aconitine, and he died at twenty minutes past eleven the same night. aconitine was found in the stomach; aconitine had been purchased by the doctor before the boy's death, and being well and having been well, the brother-in-law gave him the last thing he swallowed before the dreadful symptoms of the poison betrayed its presence. at that time no chemical test could be applied to aconitine, any more than it could to strychnine in the time of palmer. but its symptoms were, in the one case as well as in the other, unmistakable, and such as no other cause of illness would produce. two pills were found in the boy's play-box, one of which was said to contain aconitine. such was the simple case which occupied six days to try. the jury were not long in coming to a conclusion, and returned into court with a verdict of "guilty." my awful duty was soon concluded. i told the prisoner the law compelled me to pass upon him the sentence of death; but gave him, both by voice and manner, to understand that in this world there could be no hope for such a criminal. i said, as i thought it right to say, that it was no part of my duty to admonish him as to how he was to meet the dread doom that awaited him, but nevertheless i entreated him to seek for pardon of his great sin from the almighty. it was my opinion, and i believe that of the counsel for the defence, that, although so much stress was laid upon the _capsule_ and the administration of the poison by that means, it was not so administered, but that the capsule was an artifice, designed to hoodwink the doctors and treasury solicitors. to have poisoned the boy in such a manner would have been a clumsy device for so keen and artful a criminal as lamson; and i knew it was conveyed in another manner. it should be stated that in lamson's pocket-book were found memoranda as to the symptoms and effect of aconitine, and as to there being no test for its discovery. lamson therefore had made the poisoning of this boy a careful and particular study. he was not such a clumsy operator as to administer it in the way suggested. the openness of that proceeding was to blind the eyes of detectives and lawyers alike; the aconitine was conveyed to the lad's stomach _by means of a raisin in the piece of dundee cake which lamson cut with his penknife and handed to him_. he knew, of course, the part of the cake where it was. my attention was directed to the artifice employed by lamson, by the shallowness of the stratagem, and by the one circumstance that almost escaped notice--namely, the dundee cake and the curious desire of the man to offer the boy a piece in so unusual a manner. so eager was he to give him a taste that he must needs cut it with his _penknife_. i was sure, and am sure now, although there is no evidence but that which common sense, acting on circumstances, suggested, that the aconitine was conveyed to the deceased by means of the piece of cake which lamson gave him, and being carefully placed in the interior of the raisin, would not operate until the skin had had time to digest, and he the opportunity of getting on his journey to paris, whither he was bound that night, to await, no doubt, the news of the boy's illness and death. if the poison had been conveyed in the capsule, its operation would have been almost immediate, and so would the detection of the aconitine. as i have said, the contrivance would have been too clumsy for so crafty a mind. a detective would not expect to find the secret design so foolishly exposed any more than a spectator would expect to see the actual trick of a conjurer in the manner of its performance. i was not able to bring the artifice before the jury; the crown had not discovered it, and lamson's deep-laid scheme was nearly successful. his plan, of course, was to lead the prosecution to maintain that he gave the poison in the capsule, and then to compel them to show that there was no evidence of it. the jury were satisfied that the boy was poisoned by lamson, and little troubled themselves about the way in which it was done. a singular case of mistaken identity came under my notice during the trial of a serious charge of wounding with intent to do grievous bodily harm. _five_ men were charged, and the evidence showed that a most brutal mutilation of a gamekeeper's hand had been inflicted. the men were notorious poachers, and were engaged in a poaching expedition when the crime was committed. one of the accused was a young man, scarcely more than a youth, but i had no doubt that he was the cleverest of the gang. the men were convicted, but this young man vehemently protested his innocence, and declared that he was not with the gang that night. his manner impressed me so much that i began to doubt whether some mistake had not been made. the injured keeper, however, whose honesty i had no reason to doubt, declared that this youth was really the man who knelt on his breast and inflicted the grievous injury to his hand by nearly severing the thumb. he swore that he had every opportunity of seeing him while he was committing the deed, as his face was close to his own, and _their eyes met_. moreover, the young man's cap was found _close by the spot where the assault took place_. about this there was no dispute and could be no mistake, for the prisoner confessed that the cap was his, adding, however, that he _had lent it on that night to one of the other prisoners_. the youth vehemently protested his innocence after the verdict was given. so far as he was concerned i was _not_ satisfied with the conviction. "is it possible," i asked myself, "that there can have been a mistake?" i did not think that in the excitement of such a moment, and during so fearful a struggle with his antagonist, with their faces _so close together_ that they stared into each other's eyes, there was such an opportunity of seeing the youth's face as to make it clear beyond any doubt that he was the man who committed the crime. the jury, i thought, had judged too hastily from appearances--a mistake always to be guarded against. i invited the prosecuting counsel to come to my room, and asked him, "are you satisfied with that verdict so far as the _youngest prisoner_ is concerned?" "yes," he said; "the jury found him 'guilty,' and i think the evidence was enough to justify the verdict." "i _do not_," i said, "and shall try him again on another indictment." there was another involving the same evidence. i considered the matter very carefully during the night, and weighed every particle of evidence with every probability, and the more i thought of it the more convinced i was that injustice had been done. first of all, to prevent the men who i was convinced were rightly convicted from entertaining any doubt about the result of their conviction, i sentenced them to penal servitude. i then undertook to watch the case on behalf of the young man myself, and did not, as i might have done, assign him counsel. the prisoner was put up for trial, and the second inquiry commenced. it had struck me during the night that there was a point in the case which had been taken for granted by the _counsel on both sides_, and that that point was _the_ one on which the verdict had gone wrong. as i have said, i did not doubt the honest belief of the keeper, but i doubted, and, in fact, disbelieved altogether in, the power of any man to identify the face of another when their eyes were close together, as he had no ordinary but a distorted view of the features. in order to test my theory on this matter, i took the real point in the case, as it afterwards turned out to be. it was this: _five men_ were taken _for granted_ to have been in the gang and in the field on that occasion. the difficulty was to prove that there were only _four_, and then to show that the young man was not one of the four. these two difficulties lay before me, but i resolved to test them to the utmost of my ability. the crown was against me and the treasury counsel. i knew pretty well where to begin--which is a great point, i think, in advocacy--and began in the right place. i must repeat that the prisoner boldly asserted, when the evidence was given as to the finding of his cap close to the spot where the outrage was committed, that it _was_ his cap, but that he had not worn it on that night, having lent it to one of the other men, whom he then named. this was, to my mind, a very important point in this second trial, and i made a note of it to assist me at a later period of the case. if this was true, the strong corroboration of the keeper's evidence of identity was gone. indeed, it went a good deal further in its value than that, for it may have been the finding of the prisoner's cap that induced the belief that the man whose face he saw was the prisoner's! i asked the accused if he would like the other men called to prove his statements, warning him at the same time that it was upon his own evidence that they had been arrested, and pointing out the risk he ran from their ill-will. "my lord," said he, "they will owe me no ill-will, and they will not deny what i say. it's true; i'm one of 'em, and i know they won't deny it." without discarding this evidence i let the case proceed. i asked the policeman when he came into the witness-box if he examined carefully the footprints at the gate where the men entered. he said he had, and was _quite positive_ that there were the footprints of _four men only_, and further, that these prints corresponded with the shoes of the four men who had been sentenced, and _not_ with those of the prisoner. it shows how fatal it may be in judge, counsel, or jury to take anything for granted in a criminal charge. it had been taken for granted at the former trial that _five_ men had entered the field, and how the counsel for the defence could have done so i am at a loss to conceive. it was further ascertained that the same number and the _same footprints_ marked the steps of those coming _out_ of the field. it went even further, for it was proved that _no footprints of a fifth man were anywhere visible on any other part of the field_, although the most careful search had been made. if this was established, as i think it was beyond all controversy, it clearly proved that only _four men_ were in the field when the injuries were inflicted. but it might, nevertheless, be that the young man identified was one of the four. whether he was or not was now the question at issue; it was reduced to that one point. to disprove this the prisoner said he would like the men to be called. i cautioned him again as to the danger of the course he proposed, feeling that he was pretty safe as it was in the hands of the jury. they could hardly convict under my ruling in the circumstances. "no, my lord," he said; "i am _sure they will speak the truth about it_. they will not swear falsely against me to save themselves." the man who was alleged to have borrowed the cap was then brought up, and i asked him if it was true that he wore the prisoner's cap on the night of the outrage. he said, "it is true, my lord; i borrowed it." "then are you the man who inflicted the injury on the keeper?" his answer was, "unhappily, my lord, i am, and i am heartily sorry for it." when asked, "was this young man with you that night?" "no, my lord," was the answer. the jury at once said they would not trouble me to sum up the case; they were perfectly satisfied that the prisoner was not guilty, and that what he said was true--that he was not in the field that night. they accordingly acquitted him, to my perfect satisfaction. of course, i instantly wrote to the home secretary, mr. h. matthews (now viscount llandaff), who at once procured a free pardon on the former conviction, and the prisoner was restored to liberty. this case strikingly points to the imperative demand of justice that every case shall be investigated in its minutest detail. the broad features are not by any means sufficient to fix guilt on any one accused, and it is in such cases that circumstantial evidence is often brought in question, while, indeed, the _real_ circumstances are too often not brought to light. circumstantial evidence can seldom fail if the real circumstances are brought out. nobody had thought of raising a doubt as to there being _five_ persons in the field. upon such small points the great issue of a case often depends. another curious case came before me on the western circuit. a solicitor was charged with forging the will of a lady, which devised to him a considerable amount of her property; but as the case proceeded it became clear to me that the will was signed after the lady's death, and then with a dry pen held in the hand of the deceased, by the accused himself whilst he guided it over a signature which he had craftily forged. a woman was present when this was done, and as she had attested the execution of the will, she was a necessary witness for the prisoner, and in examination-in-chief she was very clear indeed that it was by the _hand of the deceased_ that the will was signed, and that she herself had seen the deceased sign it. suspicion only existed as to what the real facts were until this woman went into the box, and then a scene, highly dramatic, occurred in the course of her cross-examination by mr. charles mathews, who held the brief for the prosecution. the woman positively swore that she saw the testatrix sign the will _with her own hand_, and no amount of the rough-and-ready, inartistic, and disingenuous "will you swear this?" and "are you prepared to swear that?" would have been of any avail. she _had_ sworn it, and was prepared to swear it, in her own way, any number of times that any counsel might desire. the only mode of dealing with her was adopted. she was asked,-- "where was the will signed?" "on the bed." "was any one near?" "yes, the prisoner." "how near?" "quite close." "so that he could hand the ink if necessary?" "oh yes." "and the pen?" "oh yes." "_did he hand the pen_?" "he did." "_and the ink_?" "yes." "there was no one else to do so except you?" "no." "did he put the pen into her hand?" "yes." "and assist her while she signed the will?" "yes." "how did he assist her?" "_by raising her in the bed and supporting her when he had raised her_." "did he guide her hand?" "no." "did he touch her hand at all?" "_i think he did just touch her hand_." "when he did touch her hand _was she dead_?" at this last question the woman turned terribly pale, was seen to falter, and fell in a swoon on the ground, and so _revealed the truth_ which she had come to _deny_. chapter xli. mr.j.l. toole on the bench. sir henry hawkins was sitting at derby assizes in the criminal court, which, as usual in country towns, was crowded so that you could scarcely breathe, while the air you had to breathe was like that of a pestilence. there was, however, a little space left behind the dock which admitted of the passage of one man at a time. windows and doors were all securely closed, so as to prevent draught, for nothing is so bad as draught when you are hot, and nothing makes you so hot as being stived by hundreds in a narrow space without draught. he happened to look up into the faces of this shining but by no means brilliant assembly, when what should he observe peeping over the shoulders of two buxom factory women with blue kerchiefs but the _head of j.l. toole_! at least, it looked like mr. toole's head; but how it came there it was impossible to say. it was a delight anywhere, but it seemed now out of place. the marshal asked the sheriff, "isn't that toole?" the answer was, "it looks like him." we knew he was in the town, and that there was to be a bespeak night, when her majesty's judges and the midland circuit would honour, etc. derby is not behind other towns in this respect. presently the judge's eyes went in the direction of the object which excited so much curiosity, and, like every one else, he was interested in the appearance of the great comedian, although at that moment he was not acting a part, but enduring a situation. in the afternoon the actor was on the bench sitting next to the marshal, and assuming an air of great gravity, which would have become a judge of the greatest dignity. there was never the faintest suggestion of a smile. he looked, indeed, like byron's description of the corsair:-- "and where his frown of hatred darkly fell, hope, withering, fled, and mercy sighed farewell." a turkey-cock in a pulpit could not have seemed more to dominate the proceedings. one very annoying circumstance occurred at this assize. it was the cracking, sometimes almost banging, of the _seats_ and wainscoting, which had been remade of oak. every now and again there was a loud squeak, and then a noise like the cracking of walnuts. to a sensitive mind it must have been a trying situation, as toole afterwards said, when you are trying prisoners. meanwhile sir henry pursued the even tenor of his way, speaking little, as was his wont, and thinking much about the case before him, of a very trumpery character, unless you measured it by the game laws. but no one less liked to be disturbed by noises of any kind than sir henry when at work. even the rustling of a newspaper would cause him to direct the reader to study in some other part of the building. suddenly there was a squeaking of another kind distinguishable from all others--it was the squeaking of _sunday boots_. in the country no boots are considered sunday boots unless they squeak. at all events, that was the case in derbyshire at the time i write of. the noise proceeded from a heavy farmer, a juror-in-waiting, who was allowed to cross from one side of the court to the other for change of air. his endeavour to suppress the noise of his boots only seemed to cause them the greater irritation. there was a universal titter as the crowd looked up to see what line the judge would take. sir henry reproved quietly, and just as the farmer, who was prancing like an elephant, had got well in front of the bench, he said,-- "if that gentleman desires to perambulate this court, he had better take off his boots." the gravity of the situation was disturbed, but that of the farmer remained, unhappily for him, for, with one foot planted firmly on the ground, and the other poised between heaven and earth, he was afraid to let it come down, and there he stood. "we will wait," said the judge, "until that gentleman has got to the door which leads into the street." the juryman, toole told us afterwards, was delighted, for he escaped for the whole assize. although there was much laughter, toole knew his position and dignity too well to join in it; but he did what any respectable citizen would be expected to do in the circumstances--tried to suppress it, yet made such faces in the attempt that the whole house came down in volleys. but now he was resolved to set matters right, and prevent any further repetition of unseemly conduct. the way he did so is worthy of note. he took a pen, dipped it in the ink, and then, spreading his elbows out as one in great authority, and duly impressed with the dignity of the situation, wrote these words on a sheet of paper, which had the royal arms in the centre, his tongue meanwhile seeming to imitate the motion of his pen: "i have had my eye on you for a long time past, and if i see you laugh again i will send you to prison. be warned in time." "just hand that," said he, giving it to a javelin-man, "to the gentleman there in the _green blouse_ and red hair." the paper was stuck into the slit of the tapering fishing-rod-like instrument, and placed under the nose of the man who had been laughing. it was some time before he could believe his eyes, but a thrust or two of the stick acted like a pair of spectacles, and convinced him it was intended for his perusal. the effect was instantaneous, and he handed the document to his wife. it was interesting to watch the face of toole, suffused with good-humour and yet preserving its elastic dignity, in contrast with that of the farmer, which was almost white with terror as they interchanged furtive glances for the next half-hour. however, it all ended happily, for the man never laughed again. toole was invited to dine at the judge's dinner, but being himself on circuit, and not at liberty till _eleven_, when he took supper, an invitation to "look in" was accepted instead, if it were not too late. after supper he accordingly went for his "look in," and arriving at half-past eleven, was in time for dinner, which did not take place till half-past twelve, the court having adjourned at . . however, we spent a very pleasant evening, toole telling the story of his going to see hawkins in the tichborne trial related elsewhere, and sir henry that of the queen refusing once upon a time to accept a box at drury lane theatre while e.t. smith was lessee, which made smith so angry that he could hardly bring himself to propose her majesty's health at a dinner that same evening at drury lane. nothing but his loyalty prevented his resenting it in a suitable and dignified manner. when one sovereign is affronted by another, the only thing is to consider their respective _commercial_ values, for that, as a rule, is the test of all things in a commercial world. but the sequel was that e.t. said, "_although me and her majesty have had a little difference, i think on the whole i may propose the queen_!" fool is he who neglects his sovereign, and gets in exchange sovereign contempt. such was toole's observation. it was at this little entertainment that sir henry told the story of the banker's clerk and the bad boy--a true story, he said, although it may be without a moral. the best stories, said toole, like the best people, have no morals--at least, none to make a song about--any more than the best dogs have the longest tails. a gentleman who was a customer at a certain bank was asked by a bank clerk whether a particular cheque bore his signature. the gentleman looked at it, and said, "that is all right." "all right?" said the bank clerk. "is that really your signature, sir?" "certainly," said the gentleman. "quite sure, sir?" "as sure as i am of my own existence." the clerk looked puzzled and somewhat disconcerted, so sure was he that the signature was false. "how can i be deceived in my own handwriting?" asked the supposed drawer of the cheque. "well," said the clerk, "you will excuse me, i hope, but i have _refused to pay on that signature_, because i do not believe it is yours." "_pay_!" said the customer. "for heaven's sake, do not dishonour my signature." "i will never do that," was the answer; "but will you look through your papers, counterfoils, bank-book, and accounts, and see if you can trace this cheque?" the customer looked through his accounts and found no trace of it or the amount for which it was given. at last, on examining the _number_ of the cheque, he was convinced that the signature could not be his, _because he had never had a cheque-book with that number in it_. at the same time, his astonishment was great that the clerk should know his handwriting better than he knew it himself. "i will tell you," said the clerk, "how i discovered the forgery. a boy presented this cheque, purporting to have been signed by you. i cashed it. he came again with another. i cashed that. a little while afterwards he came again. my suspicions were then aroused, not by anything in the signature or the cheque, but by the circumstance of the _frequency of his coming_. when he came the third time, however, i suspended payment until i saw you, because the _line under your signature with which you always finish was not at the same angle_; it went a trifle nearer the letters, and i at once concluded it was a forgery." and so it turned out to be. "that boy," said toole, "deserves to be taken up by some one, for he has great talent." "and in speaking of this matter," said sir henry, "i may tell you that bankers' clerks are the very best that ever could be invented as tests for handwriting. their intelligence and accuracy are perfectly astonishing. they hardly ever make a mistake, and are seldom deceived. the experts in handwriting are clever enough, and mean to be true; but every _expert_ in a case, be he doctor, caligrapher, or phrenologist, has some unknown quantity of bias, and must almost of necessity, if he is on the one side or the other, exercise it, however unintentional it may be. the banker speaks _without this influence_, and therefore, if not more likely to be correct, is more reasonably supposed to be so. "do you remember, sir henry," asked toole, "what the clever rogue orton wrote in his pocket-book? 'some has money no brains; some has brains no money; them as has money no brains was made for them as has brains no money.'" "just like roger," said sir henry. this was a catch-phrase in society at the time of the trial. some one recited from a number of _hood's comic annual_ the following poem by tom hood:-- a bird of another feather.[a] [footnote a: these lines appeared about , and i have to make acknowledgments to those whom i have been unable to ask for permission to reproduce, and trust they will accept both my apologies and thanks.] "yestreen, when i retired to bed, i had a funny dream; imagination backward sped up history's ancient stream. a falconer in fullest dress was teaching me his art; of tercel, eyas, hood, and jess, the terms i learnt by heart. "he flew his falcon to attack the osprey, swan, and hern, and showed me, when he wished it back, the lure for its return. i thought it was a noble sport; i struggled to excel my gentle teacher, and, in short, i managed rather well. "the dream is o'er, and i to-day return to modern time; but yet i've something more to say, if you will list my rhyme. i've been a witness in a case for seven long mortal hours, and, cross-examined, had to face the counsel's keenest powers. "with courteous phrase and winning smiles he led me gently on; i fell a victim to his wiles-- but how he changed anon! 'oh, you're prepared to swear to that!' and, 'now, sir, just take care!' and, 'come, be cautious what you're at!' with questions hard to bear. "and when he'd turned me inside out, he turned me outside in; i knew not what i was about-- my brain was all a-spin, i'm shaking now with nervous fright, and since i left the court i've changed my dream-opinion quite-- i don't think hawkins sport!" before concluding the evening, toole said,-- "you remember your joke, sir henry, about miss brain and her black kids?" "not for the world, not for the world, my dear toole!" "not for the world, sir henry, not for the world; only for us; not before the boys! you said it was the best joke you ever made." "and the worst. but i was not a judge then."] chapter xlii. a full member of the jockey club. i knew a great many men connected with the turf, from the highest to the humblest; but although i have spent the most agreeable hours amongst them, there is little which, if written, would afford amusement: everything in a story, a repartee, or a joke depends, like a jewel, on its setting. at lord falmouth's, my old and esteemed friend, i have spent many jovial and happy hours. he was one of the most amiable of hosts, and of a boundless hospitality; ran many distinguished horses, and won many big races. i used to drive with him to see his horses at exercise before breakfast, and in his company visited some of the most celebrated men of the day, who were also amongst the most distinguished of the turf. amongst these was prince b----, whose fate was the saddest of all my reminiscences of the turf. i almost witnessed his death, for it took place nearly at the moment of my taking leave of him at the jockey club. there was a flight of stairs from where i stood with him, leading down to the luncheon-room, and there he appears to have slipped and fallen. i don't know that it was in consequence of this accident, or whether it had anything to do with it, but i seemed after this sad event to have practically broken my connection with the turf, and yet perhaps i was more intimately attached to it than ever, for lord rosebery asked me (i being an honorary member of the jockey club) whether there was any reason, so far as my judicial position was concerned, why i should not be elected a _full member_. i said there was none. so his lordship proposed me, and i was elected. the only privilege i acquired by "full membership" was that i had to pay ten guineas a year subscription instead of nothing. i almost regularly had the honour of being invited, with other members of the club, to the entertainment given by h.r.h. the prince of wales on the derby night--a festivity continued since his majesty's accession to the throne. nor shall i forget the several occasions on which i have had the honour to be the guest of his gracious majesty at sandringham; and i mention them here to record my respectful gratitude for the kindness and hospitality of their majesties the king and queen whenever it has been my good fortune to be invited. speaking, however, of racing men, i have always thought that the passion for gambling is one of the strongest propensities of our nature, and once the mind is given to it there is no restraint possible, either from law or pulpit. its fascination never slackens, and time never blunts the keen desire of self-gratification which it engenders, while the grip with which it fastens upon us is as fast in old age as in youth. it will absorb all other pleasures and pastimes. i will give an instance of what i mean. there was a well-known bookmaker of my acquaintance whose whole mind was devoted to this passion; his lifetime was a gamble; everything seemed to be created to make a bet upon. do what he would, go where he would, his thoughts were upon horse-racing. i was staying with charley carew, the owner and occupier of beddington park, with a small party of guests invited for shooting. one morning there was to be a rabbit-killing expedition, and after a pretty good morning's walk, i had a rest, and then leisurely went along towards the trysting-place for lunch. it was a large oak tree, and as i came up there was hodgman, the bookie, who did not see me, walking round the rabbits, which lay in rows, counting them, and muttering, "_two--four--twenty_," and so on up to a hundred. he then paused, and after a while soliloquized, "ah! fancy a hundred! one hundred _dead uns_! what would i give for such a lot for the chester cup!" his mind was not with the rabbits except in connection with his betting-book on the chester cup. he was by no means singular except in the manner of showing his propensity. the devotees of "bridge" are all hodgmans in their way. at the benchers' table i was speaking of clarkson in reference to the old bailey. he had been with me in consultation in a very bad case. we had not the ghost of a chance of winning it, and indicated our opinion to that effect to the unhappy client. he turned from us with a sad look, as if desperation had seized him, and then, with tears in his eyes, asked clarkson if he thought it advisable for him to _surrender_ and take his trial. "my good man," said clarkson, "it is my duty as a loyal subject to advise you to surrender and take your trial, _but, if i were in your shoes_, i'll be damned if i would!" the man, however, for some reason or other, _did_ surrender like a good citizen, and the man who did not appear was his own leading counsel clarkson. he never even looked in, and the conduct of the case, therefore, devolved on me. i did my best for him, however, and succeeded. the man was acquitted. not content with this piece of good fortune, for such indeed it was, he was ill-advised enough to bring an action for _malicious prosecution_. lord denman tried it, and told him it was a most impudent action, and he was astonished that he was not convicted. during this conversation another, of no little importance, took place, and lord westbury is reported to have said,-- "i did not assert that the house of lords had abolished hell with costs, although i have no doubt that the large majority would gladly assent to any such decree--all, in fact, except the bishops." as i never listen to after-dinner theology, i forbear comment on this subject; but before this time there had been a curious action brought by a churchwarden against his vicar for refusing to administer the sacrament to him, on the ground that he did not believe in the personality of the devil. after the decisions in the courts below, it was finally determined by the house of lords that the vicar was wrong. hence it was that westbury was reported to have said that the house of lords had abolished hell with costs. "what i did say," said westbury, "was that the poor churchwarden who did not at one time believe in the personality of the devil returned to the true orthodox christian faith when he received his attorney's bill." turning to me, his lordship said,-- "my dear hawkins, you shall write your reminiscences, and, what is more, they shall be printed in good type, and, what is more, the first copy shall be directed to me." and so it should be, if i only knew his address. chapter xliii. the little mouse and the prisoner. i come now to a small event which occurred during my judgeship, and which i call my little mouse story. i was presiding at the old bailey sessions, and a case came before me of a prisoner who was undergoing a term of two years' imprisonment with hard labour for some offence against the post office. the charge against him on the present occasion was attempting to murder or do grievous bodily harm to a prison warder. this officer was on duty in the prisoner's cell when the assault took place. the facts relied on by the crown were simple enough. the warder had gone into the cell to take the man's dinner, when suddenly the prisoner seized the knife brought for his use, and made a rush at the warder with it in his hand, at the same time uttering threats and imprecations. believing his life to be in danger, the warder ran to the door and got outside into the adjoining corridor, pulling the cell door to after him and closing it. he had no sooner escaped than the prisoner struck a violent blow in the direction the warder had gone, but the door being closed, it fell harmlessly enough. it left such a mark, however, that no doubt could be entertained as to the violence with which it was delivered and the probable result had it reached the warder himself. thus presented, the case looked serious. mr. montagu williams, who was counsel for the crown, felt it to be, as it undoubtedly was, his duty in common fairness to present not only the bare facts necessary for his own case, but also those which might be relied upon by the prisoner as his defence, or at all events in mitigation of punishment. in performing this duty, he elicited from his witness a very touching little history of the origin and cause of the crime. it was this:-- a poor little mouse had, somehow or other, managed to get inside the prisoner's cell; and one day, while the unhappy man was eating his prison fare, he saw the mouse running timidly along the floor. at last it came to a few crumbs of bread which the prisoner had purposely spread, and ran away with one of them into its hiding-place. the next day it came again, and found more crumbs; and so on from day to day, the prisoner relieving the irksomeness and the weary solitude of his confinement by tempting it to trust him, and become his one companion and friend, till at last it became so tame that it formed a little nest, and made its home in the sleeve of the prisoner's jail clothes. during the long hours of the dreary day it was his companion and pet; played with him, fed with him, and mitigated his solitude. it even slept with him at night. all this was, of course, against the prison rules. but the mouse had no reason to obey them. one unhappy day a warder came into the cell, when the poor mouse peeped out from his tiny hiding-place, and the officer, i presume, as a matter of duty, seized the little intruder on the spot and captured it. god help the world if every one did his strict duty in it! but--what to the prisoner seemed inexcusable barbarity--he killed the poor little mouse in the sight of the unhappy man whose friend and companion it had been. this infuriated him to such an extent that, having the dinner-knife in his hand--the knife which would have assisted at the mouse's banquet as well as his own--he rushed at the warder, who fortunately escaped through the open door of the cell, the prisoner striking the knife into the door. in the result the prisoner was indicted on the charge of attempting to murder the warder. the defence was that, as murder in the circumstances was impossible, _the attempt could not be established_, and on the authority of a case (which has, however, since been overruled) i felt bound to direct an acquittal; and i confess _i was not sorry_ to come to that conclusion, for it would have been a sad thing had the prisoner been convicted of an offence committed in a moment of such great and not unnatural excitement, and one for which penal servitude must have been awarded. the poor fellow had suffered enough without additional punishment. i can conceive nothing more keen than the torture of returning to his cell to grieve for the little friend which could never come to him again. chapter xliv. the last of lord campbell--wine and water--sir thomas wilde. life, alas! must have its sad stories as well as its mirthful. i have told few of the former, not because they have not been present to my mind, but because i think it useless to perpetuate them by narration. but for its occasional gleams of humour, life would indeed be dull, and ever eclipsed by the shadow of sorrow. one of the stories the chief baron told me is as indelibly fixed on my memory as it was on his. lord campbell had been so long and so prominently before the country that his death would be a theme of conversation in the world of literature, science, law, and fashion. but it was not his death that impressed me; it was the incidents that immediately attended it. "his lordship"--thus was the event related--"had been entertaining a party at dinner, and amongst them was his brother-in-law, colonel scarlett. in its incidents the dinner had been as lively and agreeable as those events in social and refined life usually are. scarlett had an important engagement with campbell in the city on the following monday, this being saturday night. as he rose to go scarlett wished his host good-night with a hearty shake-hands. "'good-night--good-night; we shall meet again on monday.'" alas! campbell died that night suddenly, and by a singular interposition of providence, scarlett died suddenly the next day, sunday. they met no more in this world. * * * * * in the course of my life i have suffered, like many others, from nameless afflictions--nameless because they do not exist. no one can localize this strange infirmity or realize it. you only know you have a sensation of depression. in every other respect i was perfectly well, yet i thought it was necessary to see a doctor. so it was, if i wished to be ill. being in this unhappy condition, i consulted sir james paget, then in the zenith of his fame. it did not take him very long to test me. i think he did it with a smile, for i felt a good deal better after it. "just tell me," said he, "do you ever drink any water?" "now it's coming," i thought; "he's going to knock me off my wine." i thought, however, i would be equal to the occasion, and said,-- "i know what you are driving at: you want to know if i ever mix a little water in my wine." "no, no, i don't," said he; "you are quite wrong, for if your water is good and your wine bad, you spoil your water; and if your wine is good and your water bad, you spoil your wine." i took his advice--which was certainly worth the fee--and never mixed my wine with water after that, although i have some doubt as to whether i had ever done so before. i came away in good heart, because i was so delighted that there was not a vestige of anything the matter with me. with a view to enable me to give each case due consideration before fixing the poor wretch's doom after conviction, i invariably ordered the prisoner to stand down until all were tried. i then spent a night in going through my notes in each case, so that if there were any circumstances that i could lay hold of by way of mitigation of the sentence, i did so. i do not mean to say that i did this in trifling cases, such as a magistrate could dispose of, but in all cases of magnitude possibly involving penal servitude. once, however, i had made up my mind as to what was, in accordance with my judgment, the sentence to be passed, i took care never to alter it upon any plea in mitigation whatever. for this line of conduct i had the example of sir thomas wilde, when, as lord chief justice of the court of common pleas, he travelled the home circuit. he was a marvellous and powerful judge in dealing with the facts of a case. he had tried a prisoner for larceny in stealing from a house a sack of peas. the prisoner's counsel had made for him a very poor and absurd defence, in which, over and over again, he had reiterated that one pea was very like another pea, and that he would be a bold man who would swear to the identity of two peas. this miserable defence made the lord chief justice angry, and he summed up the case tersely but crushingly to this effect: "gentlemen, you have been told by the learned counsel very truly that one pea is very like another pea, and if the only evidence in this case had been that one pea had been taken from the house of the prosecutor, and a similar pea had been found in the prisoners house, i for one should have said it would have been insufficient evidence to justify the accusation that the prisoner had taken it. "but such are _not_ the facts of this case; and when you find, as was the fact here, that on march a sack appears in a particular place, marked with the prosecutor's initials, safe in his house at night, where it ought to have been but was not, on the morning of the st; and when you find that on that morning a sack of peas of precisely similar character was in the house of the prisoner in a precisely similar sack behind the door, the question very naturally arises, _how came_ those peas in that man's house? he says he found them; do you believe him? did it ever occur to you, gentlemen, to find a similar sack of peas in the dead of the night on any road on which you chanced to be travelling? "the prosecutor says the prisoner stole them, and that is the question i ask you to answer. did he or not, in your opinion, steal them?" i need not say what the verdict was. the man was _put back for sentence_. that is the point i am upon. on the following morning the lord chief justice, still a bit angry with the prisoner's counsel for the miserable imposture he had attempted upon the jury, said,-- "god forbid, prisoner at the bar, that the defence attempted by your counsel yesterday should aggravate the punishment which i am about to inflict upon you; and with a view to dispel from my mind all that was then urged on your behalf, i have taken the night to consider what sentence i ought to pronounce." having said thus much about the speech for the defence, he gave a very moderate sentence of two or three months' imprisonment. every sentence that this chief justice passed had been well thought out and considered, and was the result of anxious deliberation--that is to say, in the serious cases that demanded it. of course, i do not claim for my adopted system an infallibility which belongs to no human device, but only that during some years, by patiently following it, i was enabled the better to determine how i could combine justice with leniency. chapter xlv. how i cross-examined prince louis napoleon. i have been often questioned in an indirect manner as to the amount of my income and the number of my briefs. i do not mean by the income tax commissioners, but by private "authorities." i was often _told_ how much i must be making. sometimes it was said, "oh, the associates' office verdict books show this and that." "why, hawkins, you must be making thirty thousand a year if you are making a penny. what a hard-working man you are! how _do_ you manage to get through it?" well, i had no answer. it is a curious inquisitiveness which it would do no one any good to gratify. i did not think it necessary to the happiness of my friends that they should know, and if it would afford _me_ any satisfaction, it was far better that they should name the amount than i. they could exaggerate it; i had no wish to do so. it is true enough in common language i worked hard, but working by system made it easy. slovenly work is always hard work; you never get through it satisfactorily. it was by working easily that i got through so much. "never fret" and "_toujours pret_" were my mottoes, as i told the chaplain; i hope he remembers them to this day. if they would not help him to a bishopric, nothing would. but i will say seriously that nothing is so great a help in our daily struggles as _good temper_, and with that observation i leave my friends still to wonder how i got through so much. judges often talk over their experiences at the bar. sometimes i talked of mine, and on one occasion told the following curious incident in my long career. i mention this circumstance as a curiosity only so far as the incident is concerned, but as more than a curiosity so far as the legality of evading the substance of the law by a technicality is concerned. all men are not privileged to cross-examine royalty, and especially future emperors. on july , , which was not very long after my call to the bar, prince louis napoleon, who afterwards became emperor of the french, was residing in england. of course, in looking back upon a man who afterwards became an emperor, the proportions seem to have altered, and he looks greater than his figure actually was. he is more important in one's eyes, and therefore from this point of view the event seems to be of greater magnitude than the mere police-court business that it was. when a man becomes great, the smallest details of his career increase in value and importance. the prince had given a man of the name of charles pollard into custody for stealing and obtaining by fraud two bills of exchange for £ , each. i was instructed by one saul (not of tarsus) to defend, and old saul thought it would be judicious to cross-examine the prince into a cocked hat, little dreaming what kind of a cocked hat our opponent would one day wear. but saul, not content with this ordinary drum-beating kind of old bailey performance, in which there is much more alarm than harm, instructed me to make a few inquiries as to the prince's private life, and so _show him up_ in public. saul loved that kind of persecution. to him the witness-box was a pillory, notwithstanding there was more mud attaching to the throwers than to the mere object of their attention. young as i was in my profession, i had sense enough to know that to dip into a prosecutor's private history, and the history of his father and grandfather, and a succession of grandmothers and aunts, was hardly the way to show that the prisoner had not stolen that gentleman's property, but was a good way to prevent the prince from recommending him to mercy. i therefore, in my simplicity, asked old saul what the uncle of the prince and his voyage in the _bellerophon_, etc., had to do with this man's stealing these two bills of exchange. "never mind, mr. hawkins, you do it; it has a great deal to do with it." however, i made up my own mind as to the course i should pursue, and having carefully read my "instructions," found that the man had been unjustly accused by this napoleon--there never was a man so trampled on--and every word of the whole accusation was false. _so_ did some solicitors instruct young counsel in those days. i started my business of cross-examination, accordingly, with a few tentative questions, testing whether the ice would bear before i took the other foot off dry land. it did not seem to be very strong, i thought. some of them were a little bewildering, perhaps, but that, doubtless, was their only fault, which the prince was desirous of amending, and he graciously appealed to me in a very sensible manner by suggesting that if i would put a question that he _could_ answer, he would do so. i thought it a fair offer, even from a prince, if i could only trust him. i kept my bargain, and definitely shaped my examination so that "yes" and "no" should be all that would be necessary. we got on very well indeed for some little time, his answers coming with great readiness and truth. he was perfectly straightforward, and so was i. "yes, sir," "no, sir;" that was all. as i have said, at this time i had not had much experience in cross-examination, but i had some intuitive knowledge of the art waiting to be developed. napoleon gave me my first lesson in that department. "i am afraid, sir," said his highness, "you have been sadly misinstructed in this case." "i am afraid, sir, i have," said i. "one or the other of us must be wrong, and i am much inclined to think it's my solicitor." it was a nice little bull, which the prince liked apparently, for he laughed good-humouredly, and especially when i found, as i quickly did, that my strength was to sit still, which i also did. i had learned by this exhibition of forces that there _was_ a defence, if i could only keep it up my sleeve. to expose it before the magistrate would simply enable clarkson, who was opposed to me, to bring up reinforcements, and knock me into a cocked hat instead of napoleon. old saul knew nothing whatever about my intended manoeuvre, nor did clarkson or his solicitor. i knew the man would be committed for trial; the magistrate had intimated as much. i therefore said nothing, except that i would reserve my defence. had i said a word, clarkson would have shaped his indictment to meet the objection which i intended to make; the man, however, was committed to the old bailey in total ignorance of what defence was to be made. the case was tried before baron alderson, as shrewd a judge, perhaps, as ever adorned the bench. when i took my point, he at once saw the difficulty napoleon was in--a difficulty from which no napoleon could escape even by a _coup d'état_. it was, in fact, this--simple as a b c:-- when the bills of exchange were received by pollard, although he intended to defraud, they were _neither drawn nor accepted_, and so were not bills of exchange at all; another process was necessary before they could become so even in appearance, and that was forgery. moreover, there was included in this point another objection--namely, that the _stamps_ signed by the prince having been handed to him with the intention that they _should be subsequently filled up_, they were not _valuable securities_ (for stealing which the ill-used pollard was indicted) at the time they were appropriated, and could not therefore be so treated. in short, the legal truth was that pollard neither stole nor obtained either _bill of exchange_ (for such they were not at that time) or valuable security. such was the law. i believe napoleon said the devil must have made it, or worked it into that "tam shape!" there were many technicalities in the law of those days, and justice was often defeated by legal quibbles. but the law was so severe in its punishments that justice herself often connived at its evasion. at the present day there is a gradual tendency to make punishment more lenient and more certain--to remove the entanglements of the pleader, and render progress towards substantial instead of technical justice more sure and speedy. napoleon's defeat could not have occurred at the present day--not, at all events, in that "tam shape." in a case in which the member of st. ives was petitioned against on the ground of treating, before lush, j., i was opposed by russell (afterwards lord chief justice and lord russell of killowen). a.l. smith was my junior, and i need not say he knew almost everything there was to be known about election law. there was, however, no law in the case. no specific act of treating was proved, but we felt that general treating had taken place in such a wholesale manner that our client was affected by it. so we consented to his losing his seat--that is to say, that the election should be declared _void_--merely void. as the other side did not seem to be aware that this void could be filled by the member who was unseated, they did not ask that our client should not be permitted to put up for the vacancy, although this was the real object of my opponent's petition. he wanted the seat for himself, but knew that he had not the remotest chance against his unseated opponent. his surprise, therefore, must have been as great as his chagrin when, the very night of the decision which unseated him, he came forward once more as a candidate. the petition had increased his popularity, and he won the seat with the greatest ease, and without any subsequent disturbance by the former petitioner. i have told you of a curious trial before a recorder of saffron walden, and my memory of that event reminds me of another which took place in that same abode of learning and justice. joseph brown, q.c., and thomas chambers, q.c., were brother benchers of mine, and when we met at the parliament chamber after dinner it was more than likely that many stories would be told, for we often fought our battles over again. at the time i speak of knox was the recorder of that important borough, and was possessed of all the dignity which so enhances a great officer in the eyes of the public, whether he be the most modest of beadles in beadledom, or the highest recorder in christendom. to give himself a greater air of importance, knox always carried a _blue umbrella_ of a most blazing grandeur. he was looked up to, of course, at saffron walden, as their greatest man, especially as he occupied the best apartments at the chief brimstone shop in the town. when i say _brimstone_, i mean that it seemed to be its leading article; for there were a great many yellow placards all over and about the emporium, which, perhaps, ought to have been called a "general shop." there were three men up before knox for stealing malt; a very serious offence indeed in saffron walden, where malt was almost regarded as a sacred object--until it got into the beer. "tom" chambers (afterwards recorder of london) was defending these prisoners, and i have no doubt, from the conduct of knox, acquired a great deal of that discrimination of character which afterwards so distinguished him in the city of london. the degrees of guilt in these persons ought to be noted by all persons who hold, or hope to hold, a judicial position. as to the first man, the actual thief, there could be no doubt about his crime, for he was actually wheeling the two or three shovelfuls of malt in a barrow; so there was not much use in defending him. about the second man there was not the same degree of certainty, for he had never touched the malt or the barrow, and there was no evidence that he knew the first man had stolen it. the only suspicion--for it was nothing more--against him was that he was seen to be walking _along the highway_ near the man who was wheeling the barrow, and as it was daytime, many others were equally guilty. the third man was still less implicated, for all that appeared against him was that _at some time or other_ he had been seen, either on the day of the theft or just before, to be in a public-house with the thief and asking him to have a drink. if it had not been at saffron walden, where they are so jealous of their malt and such admirers of their maltsters, there would have been no case against any one but the actual thief; and if the recorder had known the law as well as he knew saffron walden, or half as much as saffron walden admired him, he would have ruled to that effect. however, he pointed out to the jury the cases one by one with great care and no stint of language. "against the first," said he, "the case is clear enough: he is caught with the stolen goods in his possession. in the second case, _perhaps_, it is not quite so strong, you will think; but it is for _you_, gentlemen, not for _me_, to judge. you will not forget, gentlemen, he was walking along by the side of the actual thief, and it is for you to say what that means." then, after clearing his throat for a final effort, he said,-- "now we come to the third man. where was he? i must say there is a slight difference between his case and that of the other two men, who might be said to have been caught in the very act; but it's for _you_, gentlemen, not for _me_. it is difficult to point out item by item, as it were, the difference between the three cases; but you will say, gentlemen, whether they were not all mixed up in this robbery--it's for _you_, gentlemen, not for _me_." the jury were not going to let off three such rogues as the recorder plainly thought them, and instantly returned a verdict of guilty against all. "i agree with the verdict," said the recorder. "it is _a very bad case_, and a mercantile community like saffron walden must be protected against such depredators as you. no doubt there are degrees of guilt in your several cases, but i do not think i should be doing my duty to the public if i made any distinction in your sentences: you must all of you undergo a term of five years' penal servitude." whereupon tom chambers was furious. up he jumped, and said,-- "really, sir; really--" "yes," said knox, "really." "well, then, sir, you can't do it," said the counsel; "you cannot give penal servitude for petty larceny. here is the act" (reading): "'unless the prisoner has been guilty of any felony before.'" "very well," said the recorder; "you, brown, the actual thief, and you, jones, his accessory in the very act, not having been convicted before, i am sorry to say, cannot be sentenced to more than two years' imprisonment with hard labour, and i reduce the sentence in your cases to that; but as to you, robinson, yours is a very bad case. the jury have found that you were _mixed up_ in this robbery, and i find that you have been convicted of stealing apples. true, it's a good many years ago, but it brings you within the purview of the statute, and therefore your sentence of five years will stand." chapter xlvi. the new law allowing the accused to give evidence--the case of dr. wallace, the last i tried on circuit. i should like to make an observation on the recent act for enabling prisoners to go into the witness-box and subject themselves, after giving their evidence, to cross-examination. it must be apparent to every one, learned and unlearned in its mysteries, that no evidence can be of its highest value, and often is of no value, until sifted by cross-examination. i was always opposed to this process as against an accused person, because i know how difficult it is under the most favourable circumstances to avoid the pitfalls which a clever and artistic cross-examiner may dig for the unwary. it did not occur to me in that early stage of the discussion on the bill that a really true story _cannot_ be shaken in cross-examination, and that only the _false_ must give way beneath its searching effect. i had to learn something in advocacy; indeed, i was always learning, and the best of us may go on for ever learning, as long as this wonderful and mysterious human nature exists. however, i am not writing philosophical essays, but relating the facts of my simple life, and i confess that the case that came before me on this occasion totally upset my quiet repose in all the comfortable traditions of the past. human nature had something which i had not seen: it arose in this way. a doctor was accused of a terrible crime against a female patient. i need not give its details; it is sufficient to say that if the girl's statement was true penal servitude for life was not too much, for he was a villain of the very worst character. taking the ordinary run of evidence, if i may use the word, and the ordinary mode of cross-examination, which, in the hands of unskilled practitioners, generally tends to corroborate the evidence-in-chief, the case was overwhelmingly proved, and how sad and painful it was to contemplate none can realize who do not understand anything below the surface of human existence. i had watched the case with the anxious care that i am conscious should be exercised in all inquiries, and especially criminal inquiries, that come before one. i watched, and, let me say, _especially watched_, for any point in the evidence on which i could put a question in the prisoner's favour. upon that subject i never wavered throughout the whole of my career, and the testimony of the letters which i received from the most distinguished members of the criminal bar--not to say that they are not equally distinguished in the civil--will, i am sure, bear out my little self-praise upon a small matter of infinite importance. everything in this case seemed to be overwhelmingly against the unhappy doctor. no one in court, except himself, _could_ believe on the evidence but that he was guilty. i, who through my whole life had been studying evidence and the mode in which it was delivered, believed in the man's guilt, and felt that no cross-examination, however subtle and skilfully conducted, could shake it. i felt for the man--a scholar, a scientist--as one must feel for the victim of so great a temptation. but i felt also that he was entitled, on account of all those things which aroused my sympathy, to the severest sentence, which i had already considered it would be my duty to award him. then, under the new act, which i had spoken against and written against, as one long associated with all the bearings of evidence given in the witness-box, the poor doctor stepped into that terrible trap for the untruthful. let me now observe that, even before he was sworn, his _manner_ made a great impression on my mind. and on this subject i would like to say that few judges or advocates sufficiently consider it. the greatest actor has a manner. the man who is not an actor has a manner, and if you are only sufficiently read in the human character, it cannot deceive you, however disguised it may be. a witness's evidence may deceive, but his manner is the looking-glass of his mind, sometimes of his innocence. it was so in this case. the man was not acting, and he was not an actor. this made the first impression on my mind, and i knew there _must_ be something beneath it which only _he_ could explain. i waited patiently. it was much more than life and death to this man. the next thing that impressed me was that there was not the least confusion in his evidence or in himself. his tone, his language, could only be the result of conscious innocence. it was not very long before i gathered that he was the victim of a cruel and cowardly conspiracy. it was absolutely a case of _blackmailing, and nothing else_. i believed every word the man said, and so did the jury. his evidence _acquitted him_. he was saved from an ignominious doom by the new act, and from that moment i went heart and soul with it: however much it may be a danger to the guilty, it is of the utmost importance to the innocent. this case was not finished without a little touch of humour. when half-past seven arrived--an hour on circuit at which i always considered it too early to adjourn--the jury thought it looked very like an "all-night sitting," although i had no such intention, and one of their body or of the bar, i forget which, raised the question on a motion for the adjournment of the house. i was asked, i know, by some impatient member of the bar whether a case in which _he_ was engaged could not go over till the morning. this gave immense encouragement to an independent juryman, who evidently was determined to beard the lion in his den, and possibly shake off "the dewdrops of his british indignation." i never believed in british lions, except on his majesty's quarterings; and although they look very formidable in heraldry, i never found them so in fact. indeed, if the british lion was ever a native of the british isles, he must have become extinct, for i have never heard so much as an imitation growl from him except in hyde park on a sunday. the british lion, however, in this case seemed to assert himself in the jury-box, and rising on his hind legs, said in a husky voice, which appeared to come from some concealed cupboard in his bosom,-- "my lord!" "yes?" i said in my blandest manner. "my lord, this 'ere ---- is a little bit stiff, my lord, with all respect for your lordship." "what is that, sir?" "why, my lord, i've been cramped up in this 'ere narrer box for fourteen hours, and the seat's that hard and the back so straight up that now i gets out on it i ain't got a leg to stand on." "i'm sorry for the chair," i said. he was a very thick-set man, and the whole of the jury burst into a laugh. then he went on, with tears in his eyes,-- "my lord, when i went home last night arter sittin' here so many hours i couldn't sleep a wink." i could not help saying,-- "then it is no use going to bed; we may as well finish the business." that was all very well for him, but another juryman arose, amidst roars of laughter, and lifted up a hard, wooden-bottomed chair, and beat it with his heavy walking-stick. the chair was perfectly indifferent to the treatment it was receiving after supporting the juryman for so many hours without the smallest hope of any reward, and i then asked,-- "is that to keep order, sir?" the excitement continued for a long time, but at last it subsided, and i suggested a compromise. i said probably the gentlemen in the next case would not speak for more than one hour each, and if they would agree to this i would undertake to sum up in _five minutes_. the husky lion sat down, and so did the musician. the jury acquitted and went home. these are some of the caprices of a jury which a judge has sometimes to put up with, and it has often been said that judges are more tried than prisoners. perhaps that is so, especially when, if they do not get the kind of rough music i have mentioned from the jury-box, they sometimes receive a by no means complimentary address from the prisoner. one occurs to my mind, with which i will close this chapter. i had occasion to sentence to death a soldier for a cruel murder by taking the life of his sergeant. it was at winchester, and after i had uttered the fatal words the culprit turned savagely towards me, and in a loud, gruff voice cried, "curse you!" i made no remark, and the man was removed to the cells. very humanely the chaplain went to the prisoner and endeavoured to bring him to a proper state of mind with regard to his impending fate. on the day appointed for the execution i received by post a long letter from the clergyman, enclosing another written on prison paper. the letter was to tell me that for ten days he could make no impression on the condemned man; but on the tenth or twelfth day he expressed his sincere sorrow that he had cursed me for passing on him the sentence he had so well deserved, and his great desire was to make a humble apology to me in person. he was told that that was impossible, as i could not come to him, nor could he go to me. whereupon he begged to be allowed to write this humble apology. this he was permitted to do, and the letter from the culprit, who was hanged that morning, i was reading at the very moment of his execution. it contained, i believe, sincere expressions of contrition for the cruel deed he had done, but was mostly taken up with apologies to me for having cursed me after advising him to prepare for the doom that awaited him. he begged my forgiveness, which, i need not say, i freely gave. chapter xlvii a farewell memory of jack. poor little jack is dead! it is a real grief to me. a more intelligent, faithful, and affectionate creature never had existence, and to him i have been indebted for very many of the happiest hours of my life. poor dear little jack! he lived with me for many years; and at last, i believe, some miscreant poisoned him, for he was taken very ill with symptoms of strychnine, and died in a few hours in the early morning of may , . i was with him when he died. i never replaced him, and to this hour have never ceased to be sad when i think of the merciless and cruel fate by which the ruffian put an end to his dear little life. he was buried under some shrubs in hyde park, where i hope he sleeps the sleep of good affectionate dogs. it is ten years ago, and yet there is no abatement of my love for him, hardly any of my sorrow. he always occupied the best seat in the sheriff's carriage on circuit, and looked as though he felt it was his right. he slept by my side on a little bed of his own. at norwich, i think, he made his first appearance in state. the moment he entered the house he appropriated to himself the chair of state, which had been provided by the local upholsterer for the express use of queen alexandra, then princess of wales, on her first visit to norwich to confer honour and happiness on queen victoria's subjects in the eastern counties. nobody, however, molested jack in his seat, and, i believe, had it been one of the seats for the county there would have been no petition to disturb him. he would have been as faithful a member as the immortal toby, m.p. for barkshire, of mr. punch, to whom ever my best regards. jack considered himself entitled to precedence wherever he went, and maintained it. he was a famous judge of upholstery, and the softest chair or sofa, hearthrug or divan, was instantly appropriated. this sometimes made the local dignitaries sit up a little. they might be accustomed to the dignity of one of her majesty's judges, but the impudence of her majesty's "jack"--for so he deemed himself on circuit--was a little beyond their aldermanic natures. i was much and agreeably surprised to find that the press everywhere sympathized with my loss of jack, and many an extract i made containing their very kind remarks. my room might have been one of romeike's cutting-rooms. here is one i will give as a sample. i am sorry i cannot positively state the name of the journal, but i am almost sure it is from the _daily telegraph_. "an item of judicial intelligence, which may not everywhere be duly appreciated, is the death of mr. justice hawkins's fox terrier jack. jack has been his lordship's most constant friend for many years. with some masters such a useful dog as he was would have found going on circuit a bore; but with sir henry hawkins, who knows what kind of life suits a dog, and likes to see that he enjoys it, going on circuit was a career of adventure. the judge was always out betimes to give jack a long morning walk, and when his duties took him to small county towns he often rose with the farmers for no other purpose." here is another paragraph; and i should like to be able to give the writer's name, for it is very pleasant at all times to find expression of true love for animals, whose devotion and faithfulness to man endear them to us:-- "sir henry hawkins has my sincere sympathy in his great bereavement. jack, the famous fox terrier who accompanied his master everywhere, is dead. innumerable are the things told of jack's devotion to sir henry, and of sir henry's devotion to jack. i first made their acquaintance at worcester railway station some years ago, when i saw jack marching solemnly in the procession of officials who had come with wands and staves and javelins to receive sir henry hawkins at the opening of the assizes. jack was on one or two special occasions, i believe, accommodated with a seat on the bench; and at maidstone, when the lodgings caught fire, sir henry rushed back at the risk of his life to save his faithful little dog." these are small memories, perhaps, but to me more dear than the praises too often unworthily bestowed on actions unworthy to be recorded. but here i pause. jack rests in his little grave in hyde park, and i sometimes go and look on the spot where he lies. many and many an affectionate letter was written to me bewailing the loss of our little friend. only one of these i shall particularly mention, because it shows how immeasurably superior was jack to the lady who wrote it, in that true and sincere feeling which we call friendship, and which, to my mind, is the bond of society and the only security for its well-being. she was a lady who belonged to what is called "society," the characteristic of which is that it exists not only independently of friendship, but in spite of it. after condoling with me on my loss and showing her sweet womanly sympathy, she concluded her letter by informing me that she had "one of the sweetest pets eyes ever beheld, a darling devoted to her with a faithfulness which would really be a lesson to 'our specie,'" and that, in the circumstances, she would let me have her little darling for _five pounds_. i was so astonished and angry at the meanness of this "lady of fashion" that i said--well, perhaps my exact expression had better be buried in oblivion. ballad of the unsurprised judge, .[a] [footnote a: it was a well-known expression of sir henry hawkins when on the bench, "i should be surprised at nothing;" and after the long and strange experiences which these reminiscences indicate, the literal truth of the observation is not to be doubted. this clever ballad, which was written in , seems sufficiently appropriate to find a place in these memoirs, and i wish i knew the name of the writer, that my thanks and apologies might be conveyed to him for this appropriation of them.] ("mr. justice hawkins observed, 'i am surprised at nothing,'"--_pitts v. joseph, "times" report, march _.) all hail to sir henry, whom nothing surprises! ye judges and suitors, regard him with awe, as he sits up aloft on the bench and applies his swift mind to the shifts and the tricks of the law. many years has he lived, and has always seen clear things that nox seemed to hide from our average eyes; but still, though encompassed with all sorts of queer things, he never, no, never, gives way to surprise. when a rogue, for example, a company-monger, grows fat on the gain of the shares he has sold, while the public gets lean, winning nothing but hunger and a few scraps of scrip for its masses of gold; when the fat man goes further and takes to religion, a rascal in hymn-books and bibles disguised, "it's a case," says sir henry, "of rook _versus_ pigeon, and the pigeon gets left--well, i'm hardly surprised." there's a heath at newmarket, and horses that run there; there are owners and jockeys, and sharpers and flats; there are some who do nicely, and some who are done there; there are loud men with pencils and satchels and hats. but the stewards see nothing of betting or money, as they stand in the blinkers for stewards devised; their blindness may strike henry hawkins as funny, but he only smiles softly--he isn't surprised. so here's to sir henry, the terror of tricksters, of law he's a master, and likewise a limb; his mind never once, when its purpose is fixed, errs: for cuteness there's none holds a candle to him. let them try to deceive him, why, bless you, he's _been_ there, and can track his way straight through a tangle of lies; and though some might grow gray at the things he has seen there, he never, no, never, gives way to surprise. by the courtesy of sir francis burnand, who most kindly obtained permission from messrs. bradbury and agnew, i insert the following poem, which appeared in a february number of _punch_ in the year :-- the woman and the law. (a true story, told before mr. justice hawkins at the recent liverpool assizes--_vide daily telegraph_, february .) in the criminal dock stood a woman alone, to be judged for her crime, her one fault to repair, and the man who gave evidence sat like a stone, with a look of contempt for the woman's despair! for the man was a husband, who'd ruined a life, and broken a heart he had found without flaw; he demanded the punishment due to the wife, who was only a woman, whilst his was the law! a terrible silence then reigned in the court, and the eyes of humanity turned to the dock; her head was bent down, and her sobbing came short, and the jailer stood ready, with hand on the lock of the gate of despair, that would open no more when this wreckage of beauty was hurried away! "let me speak," moaned the woman--"my lord, i implore!" "yes, speak," said the judge. "i will hear what you say!" "i was only a girl when he stole me away from the home and the mother who loved me too well; but the shame and the pain i have borne since that day not a pitying soul who now listens can tell! there was never a promise he made but he broke; the bruises he gave i have covered with shame; not a tear, not a prayer, but he scorned as a joke! he cursed at my children, and sneered at my fame! "the money i'd slaved for and hoarded he'd rob; i have borne his reproaches when maddened with drink. for a man there is pleasure, for woman a sob; it is he who may slander, but she who must think! but at last came the day when the law gave release, just a moment of respite from merciless fate, for they took him to prison, and purchased me peace, till i welcomed him home like a wife--at the gate! "was it wrong in repentance of man to believe? it is hard to forget, it is right to forgive! but he struck me again, and he left me to grieve for the love i had lost, for the life i must live! so i silently stole from the depths of despair, and slunk from dark destiny's chastening rod, and i crept to the light, and the life, and the air, from the town of the man to the country of god! "'twas in solitude, then, that there came to my soul the halo of comfort that sympathy casts; he was strong, he was brave, and, though centuries roll, i shall love that one man whilst eternity lasts! o my lord, i was weak, i was wrong, i was poor! i had suffered so much through my journey of life, hear! the worst of the crime that is laid at my door: i said i was widow when, really a wife! "here i stand to be judged, in the sight of the man who from purity took a frail woman away. let him look in my face, if he dare, if he can! let him stand up on oath to deny what i say! 'tis a story that many a wife can repeat, from the day that the old curse of eden began; in the dread name of justice, look down from your seat! come, sentence the woman, and shelter the man!" a silence more terrible reigned than before, for the lip of the coward was cruelly curled; but the hand of the jailer slipped down from the door made to shut this sad wanderer out from the world! said the judge, "my poor woman, now listen to me: not one hour you shall stray from humanity's heart when thirty swift minutes have sped, you are free in the name of the law, which is mercy, depart!" chapter xlviii. old turf friends. an announcement in the morning papers of the death of mr. richard c. naylor of kelmarsh, northamptonshire, at the age of eighty-six, carried me back to the far-off days when, tempted by the hospitality and kind friendship of lord falmouth, i became a regular visitor of newmarket heath--an _habitué_ during the splendid dictatorship of admiral rous! i would like to mention the names of some of the celebrities of the turf of those days, many of them my frequent companions, and no less my real and sincere friends. time, however, fails. but in looking through the piles of letters with which the kindness of my friends has favoured me from time to time, i come across many a relic of the past that recalls the pleasantest associations. even a telegram, most prosaic of correspondence, which i meet with at this moment, is a little poem in its way, and brings back scenes and circumstances over which memory loves to linger. it is nothing in itself, but let any one who has loved country life and enjoyed its sports and its many friendships consider what forgotten pleasures may be brought to mind by this telegram. _telegram_. dorchester, _november_ , ' . handed in at quorn at . a.m. received here at . a.m. _to_ sir h. hawkins, the judges' house, dorchester. just returned from badminton to find the most charming present from you, which i shall always regard with the greatest value, and think you are too kind, in giving me such a present. am writing.--lonsdale. "at _quorn_," i repeat, and then i find the letter which lord lonsdale was writing. this is it:-- churchill cottage, quorn, loughborough, _tuesday, november_ , ' . my dear sir henry,--how can i thank you enough for your magnificent present? it is, indeed, kind of you thinking of me, and i can assure you that the spurs shall remain an "heirloom" to decorate the dinner-table (a novel ornament) and match the silver spur poor old white melville gave me. why you should have so honoured me i do not know, but that i fully value your kindly thought i do know. is there any chance of your being in these parts? if so, _do_ pay me a visit. and with many, many thanks for your extreme kindness, believe me yours very truly, (_signed_) lonsdale. alas! almost all of them have passed away, yet they will live while the memory of the generation lasts which called them friends. they have vanished from the scenes in which they played so prominent a part, and yet their influence remains. there was the old admiral himself, the king of sportsmen and good fellows. horse or man-o'-war, it was all one to him; and although sport may not be regarded as of the same importance with politics, who knows which has the more beneficial influence on mankind? i would have backed admiral rous to save us from war, and if we drifted into it to save us from the enemy, against any man in the world. then there was his bosom friend george payne, and the old, old squire george osbaldeston, lord falmouth, w.s. crawfurd, the earl of wilton, lord bradford, lord rosslyn, lord vivian, the duke of hamilton, george brace, general mark wood, alexander, lord westmorland, the earl of aylesbury, clare vyner, dudley, milner, sir john astley ("the mate"), lords suffolk and berkshire, coventry and clonmell, manton, ker seymer--the names crowd upon my memory; then, alas! a long, long while after, henry calcraft, lord granville, lord portsmouth, and "prince eddy," lord gerard, the earl of hardwicke, viscount royston, sam batchelor, and tyrwhitt wilson. these are some of those whom i remember, and, by the way, i ought to add the duke of westminster and tom jennings, names interesting and distinguished, and indicative of a phase of life ever full of enjoyment such as is not known out of the sporting world, where excitement lends to pleasure the effervescence and sparkle which make life something more than animal existence. this is true in hunting, racing, cricket, and i should think intensified in the highest degree in a charge of cavalry. take balaclava, for instance: the very fact of staking life at such odds must have compressed into that moment a whole life of ordinary pleasure. i will mention a few more names, and then close another chapter of my memory. there was mr. j.a. craven, the duke of st. albans, the duke of beaufort, montagu tharp, major egerton, general pearson, lord calthorpe, henry saville, douglas gordon (mr. briggs), oliver montagu, henry leeson, the earl of milltown, sir henry devereux, johnny shafto, douglas phillips, randolph churchill, lord exeter, lord stamford. of the famous jockeys and trainers there were john scott, mat dawson, fred archer. there were also james weatherby, judge clark, and tattersall. chapter xlix. leaving the bench--lord brampton. at length the time came when i was to bid good-bye to the queen's bench and the court no. in which i had so long presided, where i had met and made so many friends, all more or less learned in the law. i had been a judge since the year , and time, in its never-ceasing progress, had whispered to me more than once, "tarry not too long upon the scene of your old labours, where your presence has made you a familiar object to all the members of every branch of your great and responsible profession; and while health and vigour and intelligence still, by god's blessing, remain to you, apparently unimpaired by lapse of years, take some of that rest and repose which you have earned, ere it be too late." thereupon, without any needless ceremony of leave-taking, at the close of the year i took my leave of the bench with a simple bow. silently, but with real affection for all i was leaving behind me, i quitted my occupation on the bench. i considered this to be a far more dignified way of making my exit than meeting face to face the whole of the court and its practitioners and officers, and leaving it to the eloquent and friendly speech of the attorney-general to flatter me far beyond my deserts in the customary farewell address which he would have offered to me. i thought it better to rely upon the expressions and conduct of those who knew me well, and to feel that they appreciated the discharge of the many arduous duties which i had been called on to perform. as some evidence of this, i would point to the good wishes from all kinds and classes of people which have followed me into private life, and the numerous letters which every post brought me, and which would fill a volume in themselves. but the crowning honour was graciously conferred upon me by her late majesty queen victoria on january , , through the then marquis of salisbury, who signified that her majesty intended to raise me to the peerage. his lordship's letter announcing the gracious act i recall with feelings of pleasure and gratitude, and i need not say that it will, while life lasts, be my greatest pride. i was subsequently sworn of her majesty's privy council, and for more than two years attended pretty regularly in the final court of appeal. it does not behove me to say more on this subject than that the acknowledgment of my long services by the sovereign must ever be my greatest pride and satisfaction. on february , , i was introduced to the house of peers, and took my seat. i chose for my name and designation the title of baron brampton, which her majesty was pleased to approve. my little property, therefore, which i mentioned earlier in my reminiscences, conferred on me what was more valuable than its income--the title by which i am now known. speaking with reference to those long years ago when i was dissuaded from my career by those who doubtless had the most affectionate interest in my welfare, and to whose advice i proved to be so undutiful, i cannot help, whether vanity be attributed to me or not, contrasting the position of the penniless articled clerk in the attorney's office and the situation which came to me as the result of unremitting labour. let me state it with pride as well as humility that my rewards have been beyond my dreams and far above my deserts. on february , in a committee room of the house, i was met by my supporters and those whose duties made them a portion of the ceremony, and realized the ambition that came to me only in my later life. some members of my family would have preferred the family name to be associated with the title. i must confess i had some attachment for it, as it had rendered me such good service, and it was somewhat hard to give it up. if, however, i had had any hesitation, it would have been removed when one afternoon lord ---- called on me, and in his chaffing manner said,-- "well, i hear you are to be lord '_awkins_ of '_itchin_, 'erts." "be ---- if i will!" said i; "brampton's the only landed estate i have inherited, and although the old ladies who are life-tenants kept me out of it as long as they could, i shall take my title from it as the only thing i am likely to get out of it." "bravo!" said he. "i don't like 'awkins of 'itchin, 'erts. _brampton_ sounds like a title; and so my hearty congratulations, and may you and her ladyship live long to enjoy it!" "mr. punch" was good enough to furnish me with a beautiful and humorous coat of arms, done by that very talented artist mr. e.t. reed. * * * * * since the commencement of this volume many of the old friends mentioned in it with affectionate remembrance have gone to their rest, and i am steadily approaching my own end. trusting to the mercy and goodness of god, i patiently await my summons. i can but humbly add that to the best of my poor ability i have ever conscientiously endeavoured in all things to do my duty. and now, as i lay down my pen, dreamily thinking over old names, old friends, and old faces of bygone years, i live my life over again. everything passes like a picturesque vision before my eyes. i can see the old coach which brought me from my home--a distance of thirty miles in eight hours--a rapid journey in those days. this was old kirshaw's swift procedure. then there was the "bedford times" i travelled with, which was whitehead's fire-engine kind of motor; but generally in that district john crowe was the celebrated whip. then passes before me the old cock that crew over the doorway in fleet street, a johnsonian tavern of mighty lineage and celebrity for chops and steaks. and i see the old waiter, with his huge pockets behind, in which he deposited the tons of copper tips from the numberless diners whom he attended to during his long career. then i observe the rainbow, by no means such a celebrity, although more brilliant than the mitre by its side; and in the mitre i see (but only in imagination) johnson and goldsmith talking over the quaint philosophy of wine and letters till three o'clock in the morning, finishing their three or four bottles of port, and wondering why they were a little seedy the next day. and there sits at my side, enjoying his chop, tom firr, described as the king of huntsmen--a true and honest sportsman, simple, respectful, and respected, whose name i will not omit from my list of celebrities, for he is as worthy of a place in my reminiscences as any m.f.h. you could meet. chapter l. sentences. there is no part of a judge's duty which is more important or more difficult than apportioning the punishment to the particular circumstances of a conviction. as an illustration of this statement i would take the offence of bigamy, where in the one case the convicted person would deserve a severe sentence of imprisonment, while in another case he or she might be set at liberty without any punishment at all. such cases have occurred before me. the sentence of another judge upon another prisoner ought not to be followed, for each prisoner should be punished for nothing but the particular crime which he has committed. for this reason the case of each individual should be considered by itself. i dislike, also, the practice of passing a severe sentence for a trifling offence merely because it has been a common habit in other places or of other persons. for instance i have known five years of penal servitude imposed for stealing from outside a shop on a second conviction, when one month would have been more than enough on a first conviction, and two or three months on a second conviction. for small offences like these the penalty should always be the same in character--i mean not excessive imprisonment, and never penal servitude. as often as a man steals let him be sent to prison, and it may be for each offence the time of imprisonment should be somewhat slightly increased, but not the character of the punishment. years ago, in my session days, i remember a poor and, i am afraid, dishonest client of mine being _transported for life_ (on a second conviction for larceny) for stealing _a donkey_; but i doubt if that could happen nowadays. it seems incredible. nobody who has carefully noted the innumerable phases of crime which our criminal courts have continually to deal with, and the infinite shades of guilt attached to each of those crimes, will fail to come to the conclusion that one might as well attempt to allocate to its fitting place each grain of sand, exposed to the currents of a desert and all other disturbing influences, as endeavour by any scheme or fixed rule to determine what is the fitting sentence to be endured for every crime which a person can be proved, under any circumstances, to have committed. the course i adopted in practice was this. my first care was never to pass any sentence inconsistent with any other sentence passed under similar circumstances for another though similar offence. then i proceeded to fix in my own mind what ought to be the outside sentence that should be awarded for that particular offence had it stood alone; and from that i deducted every circumstance of mitigation, provocation, etc., the balance representing the sentence i finally awarded, confining it purely to the actual guilt of the prisoner. i have noticed that burglaries with violence are rarely committed by one man alone, and that when two or more men are concerned in a murder, one or more of them being afraid that some one, in the hope of saving himself from the treachery of others, is anxious to shift the whole guilt of the robbery, with its accompanying violence, on to the shoulders of his comrades. it is well that this should be so, and that such dangerous criminals should distrust with fear and hatred their equally guilty associates. except for special peremptory reasons, i never passed sentence until i had reconsidered the case and informed my own mind, to the best of my ability, as to what was the true magnitude and character of the offence i was called upon to punish. the effect of such deliberation was that i often mitigated the punishment i had intended to inflict, and when i had proposed my sentence i do not remember ever feeling that i had acted excessively or done injustice. i am now quite certain that no sentence can be properly awarded unless after such consideration. i speak, of course, only of serious crimes. it has more than once happened that even after all the evidence in the case was before the jury, as was supposed, i have discovered that an accused man, in _mitigation of sentence_, has pleaded that which would have been a _perfect defence to the charge made against him_! one of these instances was very remarkable. it happened at some country racecourse. a man was charged with robbing another who was in custody in charge of the police for "welshing." the prisoner had undoubtedly, while the prosecutor, as i will call him, was in custody, and being led along the course, rushed up to him, after jumping the barriers, and put his hand in his coat-pocket, pulling out his pocket-book and other articles. he then made off, but was pursued by the police and arrested. he was indicted for the robbery, and the facts were undisputed. there was no defence set up, and i was about to ask the jury for their opinion on the case, which certainly had a very extraordinary aspect. suddenly the prisoner blurted out, as excusing himself,-- "well, sir, _he asked me to take the things_. i was a stranger to him, and the mob was turning his pockets inside out and ill-treating him for welshing." i immediately asked the prosecutor, "is that true?" and he answered, "yes." the prisoner said, "i only did it to protect his things for him." of course i instantly stopped the case and directed an acquittal. i then gave both parties a little advice. to the prosecutor (the welsher) i said, "don't go welshing any more;" and to the prisoner, "if you ever again see a welsher in distress, don't help him." i should like to say one word more. it should not be supposed that a man, when sentenced, is altogether bad because he uses insulting language to the judge. he may not be utterly bad and past all hope of redemption on that account. the want of even an approach to uniformity in criminal sentences is no doubt a very serious matter, and is due, not to any defect in the criminal law (much as i think that might be improved in many respects), but is owing to the great diversity of opinion, and therefore of action, which not unnaturally exists among criminal judges, from the highest to the humblest, numbering, as they do, at least , personages, including judges of the high courts, commissioners, recorders, police magistrates, and justices of the peace. when one considers the conditions under which the criminal law is administered in england, and remembers that no fixed principles upon which punishments should be awarded have been authoritatively laid down, and that the law has stated only a maximum (but happily at the present time not a minimum), and each judge is left practically at liberty to exercise his own unfettered discretion so long as he confines himself within the limit so prescribed, it is no matter for wonder that so great a diversity of punishment should follow so great a variety of opinion. even in the most accurate and useful books of practice to which all look for guidance and assistance during every stage of the criminal proceedings, down to the conviction of the offender, no serious attempt has been made to deal, even in the most general way, with the mode in which the appropriate sentence should be arrived at. the result of this state of things is extremely unsatisfactory, and the most glaring irregularities, diversity, and variety of sentences are daily brought to our notice, the same offence committed under similar circumstances being visited by one judge with a long term of penal servitude, by another with simple imprisonment, with nothing appreciable to account for the difference. in one or the other of these sentences discretion must have been erroneously exercised. i have seen such diversity even between judges of profound learning in the law who might not unreasonably, _primâ facie_, be pointed to as safe examples to be followed; and so they were, so far as regarded their legal utterances. experience, however, has told us that the profoundest lawyers are not always the best administrators of the criminal law. practically there are now no criminal offences which can be visited with the penalty of death. treason and murder still remain. for the latter offence the judge is _bound to pronounce sentence of death_, which is imperatively fixed and ordained by act of parliament, and any other sentence would be illegal. there are certain principles which i consider ought never to be lost sight of. in the first place, it must be remembered that for mere immorality, not made criminal by the common or statute law of the land, no punishment can be legally inflicted, and, in my opinion, no crime ought to be visited with a heavier punishment merely because it is also against the laws of god. take, for example, the crime of unlawfully knowing a girl under the age of sixteen years, even with consent. assume that with her invitation the man committed himself. go further, and establish the sin of incest. the latter sin ought to be _totally ignored_ in dealing with the _statutory_ offence. i must not, however, be understood as intending my observations to apply to cases where the immorality is in itself an _element_ of the crime. my view is that the rule ought to apply only in cases where the immorality is only a sin against god, and is severable from the _crime_ committed against the laws of the land. the case i have suggested is an illustration of what i mean. secondly, a sentence ought never to be so severe as to create in the mind of reasonable persons, having knowledge of the circumstances, a sympathy with the criminal, for that tends to bring the administration of the law into discredit, and while giving a judge credit for having acted with the strictest sense of justice, it might give rise to a suspicion of his fitness and qualifications for the administration of the criminal law--a state of things which ought to be avoided. the same observations apply, but not with equal force, to sentences which may to reasonable persons acquainted with all the circumstances appear to be ridiculously light, for it is more consistent with our laws to err on the side of mercy than on the side of severity. the object of criminal sentences is to compel the observance by all persons, high and low, rich and poor, of those public rights and privileges, both as regards the persons and property common to all their fellow-subjects, the infringement of which is made criminal. for the infringement of other rights of a private character the law has provided civil remedies with which we are not at this moment concerned. punishments, then, should be administered only as a necessary sequence to the breach of a _criminal_ law, with the object of deterring the offender from repeating his offence. of necessity it operates to some extent as a warning to others; but that is not its primary object, for no punishment ought to exceed in severity that which is due to the particular offence to which it is applied. to add to a sentence for a very venial offence for which a nominal punishment ought to suffice an extra fine or term of imprisonment by way of example or warning to others would be unreasonable and unjust. vengeance, or the infliction of unnecessary pain, especially for the sake of others, should never form part of a criminal sentence. reformation of the criminal by and during his imprisonment should be one chief object of his punishment, but a just sentence for the offence is not to be prolonged either for education or reformation, unless expressly sanctioned by law, as in the case of reformatories. with regard to crimes of violence, it sometimes happens that long periods of restraint and imprisonment are imperative--where, for instance, the criminal is persistent in his threats, or has made it evident by his actions or words that on his liberation from imprisonment for criminal violence he intends to resume his criminal course, and will do so unless restrained. take, for instance, the case of a persistent burglar, the great majority of whose robberies are committed under circumstances calculated to create terror and alarm, and upon whom imprisonment, however long, has no restraining effect after his liberation. take the confirmed highway robber, who to secure his booty does not scruple to use deadly violence upon his victim. it is rare that one short term of imprisonment, or the fear of another, induces him to abandon his criminal course. in such cases it is essential for the protection of the public that he should no longer be at liberty to pursue his dangerous and alarming course of life. for him, therefore, a much longer term of restraint is necessary than in the case of mere pilferers, whose thefts, although causing loss and vexation, are not productive of personal injury. lastly, i am strongly averse from abolishing the sentence of death in cases of deliberate murder. even when the crime is committed under the influence of jealousy, i should take little pains to save the life of one who had cruelly and deliberately murdered another for the gratification of revenge or the purpose of robbery. in the case of poor creatures who make away with their illegitimate offspring in the agony of their trouble and shame, there were, in my experience, almost always to be found very strong reasons for commutation, even to very limited periods of imprisonment. chapter li. cardinal manning--"our chapel." cardinal manning was a real friend to me, and i often spent an hour with him on a sunday morning or afternoon discussing general topics. at my request, when i had no thought of being converted to his church, he marked in a book of prayers which he gave me several of his own selections, which i have carefully preserved; but i can truly say he never uttered one word, or made the least attempt, to proselytize me. he left me to my own free, uncontrolled, and uncontrollable action. my reception into the church of rome was purely of my own free choice and will, and according to the exercise of my own judgment. i thought for myself, and acted for myself, or i should not have acted at all. i have always been, and _am_, satisfied that i was right. as to cardinal manning, his extreme good sense and toleration were my admiration at all times, and i shall venerate his memory as long as i live. his kindness was unbounded. it was after his death, which was a great shock to me, that i was received into the church by the late cardinal vaughan. when the latter was showing lady brampton and myself over that beautiful structure, the new westminster cathedral, i thought i should like to erect a memorial chapel, and made a proposal to that effect. we resolved to dedicate it to st. gregory and st. augustine. it was afterwards called "our chapel." the stonework was accordingly proceeded with, and afterwards the plans for decoration were submitted to the archbishop and myself. for these decorations i subscribed a portion. the rest of the work was our own, and we have the satisfaction of feeling that our chapel is erected to the honour and glory of god. the style of decoration adopted is byzantine. the walls are embellished with many and various beautiful marbles. the eastern side has a representation of pope gregory sending st. augustine with his followers to preach the gospel in england. another scene is st. augustine's reception by king ethelbert and queen bertha in the isle of thanet. the panels of the reredos contain pictures of st. gregory and st. augustine, with their four contemporaries, st. paulinus, st. justus (bishop of rochester), st. laurentius, and st. mellitus (bishop of london). on the north are figures of st. edmund, st. osbald, and the venerable bede; while opposite are st. wilfred, st. cuthbert, and st. benedict. on the west are st. john the baptist and st. augustine, and below these, figures of women pouring water from pitchers, symbolical of the river jordan. under the arch of this side are most artistically designed panels containing the names of the four rivers of paradise. the floor is inlaid, and the windows, which are of opalescent glass, throw over the structure a soft white light, admitting of the perfect harmony of colours which everywhere adorn this very beautiful chapel. * * * * * almost all whose names i have mentioned in these reminiscences are gone. there are many others equally dear about whom i cannot for want of time and space write here; most of them have also passed away. they can no longer sing the old songs, or tell the old tales, but their memory remains, and the pleasant melody of their lives. i enjoy their companionship now in the quietude of my home, and their memory brightens even the sweet twilight of the evening hours. but it all reminds me that the signal has been given to ring the curtain down. i therefore make a last and momentary appearance in the closing drama, only to bid all and every one with whom i have been associated in times past and in times recent, as the curtain falls, an affectionate farewell. appendix. the crown calendar for the lincolnshire lent assizes. _holden at the castle of lincoln on saturday the th of march , before the right honorable sir vicary gibbs and the honorable sir william garrow_. john charles lucas calcraft, esq., sheriff. . william bewley, aged , late of kingston upon hull, pensioner from the th regt. of foot, committed july , , charged on suspicion of having feloniously broken into the dwelling house of james crowder at barton, no person being therein, and stealing bottle green coat, velveteen jacket, waistcoats, &c. guilty--death. . john giddy, aged , late of horncastle, tailor, com. aug. , , charged with stealing a silver watch with a gold seal and key, from the shop of james genistan of horncastle. six months imprisonment. . george kirkhan, aged , } } both late of stickney, . john colston maynard, aged , } laborers, com. aug. , , charged on suspicion of feloniously entering the dwelling house of w'm bell of stickney, between and o'ck in the morning, and stealing one £ note and £ notes. acquitted. . george crow, aged , late of frith ville, com. sept. , , charged on suspicion of having entered the dwelling house of s. holmes of frith ville, about o'ck in the morning, breaking open a desk, and stealing three £ notes, s. d. in silver, and a purse. guilty--death. . thomas young, aged , late of firsby, laborer, com. sept. , , charged with having, about o'ck at night, entered the dwelling house of john ashlin of firsby, with intent to commit a robbery. guilty--death. . robert husker, aged ,} } both late of glamford briggs, . john robinson, aged ,} laborers, com. oct. , , charged with burglariously breaking into the dwelling house of chas. saunby, of south kelsey, and stealing therefrom several goods and chattels. guilty--death. . john marriott, aged , late of osgodby, laborer, com. oct. , , charged with maliciously and feloniously setting fire to an oat stack, the property of thomas marshall of osgodby. guilty--death. . sarah hudson, alias heardson, aged , late of newark, nottinghamshire, com. oct. , , charged on suspicion of feloniously stealing from the cottage of james barrell of aisthorpe, in the day time, no person being therein, silver tea-spoons and a pair of silver sugar tongs. discharged by proclamation. . elizabeth firth, aged , late of burgh cum girsby, spinster, com. nov. , , charged with twice administering a quantity of vitrol or verdigrease powder, or other deadly poison, with intent to murder susanna, the infant daughter of george barnes of burgh cum girsby. no true bill. . john moody, aged , late of stallingborough, laborer, com. dec. , , charged with having committed the odious and detestable crime and felony called sodomy. indicted for misdemeanor. two years imprisonment. . william johnson, aged , late of bardney, laborer, com. dec. , , charged with having burglariously entered the dwelling house of w'm smith, of bardney, and wilfully and malliciously beating and wounding, with intent to murder and rob wm. kirmond, a lodger therein. seven years transportation. . richard randall, aged ,} } both late of lutton, . john tubbs, aged , } laborers, com. dec. , , charged with feloniously assaulting wm. rowbottom of holbeach marsh, between and o'ck in the night, in a field near the king's highway, and stealing from his person promissory £ notes, or shillings in silver, one silver stop and seconds watch, and various other goods and chattels. both guilty--death. . william hayes, aged , late of braceby, weaver, com. jan. , , charged with feloniously stealing a mare, together with a saddle and bridle, the property of ed. briggs of hanby. guilty--death. . thomas evison, aged , } } both late of alnwick, . thomas norris, aged , } laborers, com. jan. , , charged with feloniously setting fire to a thrashing machine and a hovel, containing a quantity of oats in the straw, the property of thos. faulkner, jun. of alnwick, which were all consumed. guilty--death. . william walker, aged , laborer, } } both late of boston, . elizabeth eno, aged , spinster, } com. jan. , , charged with burglariously entering the dwelling house of wm. trentham, and stealing a sum of money in gold and silver, several country bank notes, and a red morocco pocket-book. guilty--death. . william bell, alias john brown, aged , late of alvingham, laborer, com. feb. , , charged with burglariously breaking into the shop of wm. goy of alvingham, and stealing pair of new shoes, half boot, and half boot top. guilty--death. . john hoyes, aged , late of heckington, com. feb. , , charged with feloniously stealing pigs of the value of £ , the property of john fairchild of wellingore. acquitted. . christiana robinson, aged , } } both late of glamford . mary stewart, aged , } briggs, com. march , , charged with breaking into chas. saunby's shop, &c. (same as nos. and ). not prosecuted. prisoners under sentence. george houdlass, convicted at lammas assizes, , of mare stealing.--ordered to be transported for the term of his natural life. (the prince regent, in the name of his majesty, having graciously extended the royal mercy to the said convict, his said sentence is commuted to two years imprisonment, commencing july , .) martin dowdwell, convicted at the lent assizes, , of perjury.--ordered to be impillored once and imprisoned for two years. susanna pepper, convicted at the lammas assizes, , of secreting the birth of her bastard child.--ordered to be imprisoned for one year. william whitehead (the younger); at the summer assizes, , was found by a jury to be of unsound mind.--ordered to be imprisoned until his majesty's pleasure be known. edward croft, convicted at the louth quarter sessions, held jan. , , of a felony.--ordered to be transported for seven years. john caminack, convicted at the spilsby quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. william busbey, convicted at the same sessions of a felony.--ordered to be transported for seven years. william nubert, convicted at the lent assizes, , of burglary.--ordered to be transported for seven years. william patchett, convicted at the same assizes of burglary.--ordered to be transported for seven years. richard clarke, convicted at the summer assizes, , of having forged bank notes in his possession.--ordered to be transported for fourteen years. thomas maddison, convicted at the same assizes of burglary.--ordered to be transported for seven years. james donnington, convicted at the same assizes of stealing a lamb.--ordered to be transported for seven years. samuel brown, convicted at the same assizes of stealing a mare.--ordered to be transported for the term of his natural life. joseph greenfield, convicted at the same assizes of stealing a heifer.--ordered to be transported for fourteen years. william johnson, convicted at the spilsby quarter sessions, july , , of a felony.--ordered to be transported for seven years. william willson, convicted at the kirton quarter sessions, oct. , , of a felony.--ordered to be transported for seven years. henry thorpe, convicted at the bourn quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. george croft, convicted at the boston quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. william betts, alias bungs, convicted at the spalding quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. james tidwell, convicted at the same sessions of a felony.--ordered to be transported for seven years. samuel chapman, convicted at the spilsby quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. david jones, convicted at the kirton quarter sessions, jan. , , of a felony.--ordered to be transported for seven years. in his majesty's gaol in the city of lincoln. . daniel elston, aged , late of waddington, cordwainer, com. sep. , , charged with feloniously stealing from the dwelling house of rd. blackbourn, of waddington, one silver watch, and a pair of new quarter boots.--guilty of stealing only-- years transportation. . william kehos, aged , a private soldier in the th regt. of foot, com. nov. , , charged with feloniously slaughtering and stealing from the close of matthew white of lincoln one wether hog.--guilty--death. printed by drury & sons, lincoln. the end. project note: project gutenberg also has an html version of this file which includes the original illustrations. see -h.htm or -h.zip: (http://www.gutenberg.net/ / / / / / -h/ -h.htm) or (http://www.gutenberg.net/ / / / / / -h.zip) trial of mary blandy edited by william roughead author of "twelve scots trials," "the riddle of the ruthvens," "glengarry's way," &c. illustrated [illustration: miss blandy in her cell in oxford castle. (_from an unpublished sepia drawing in the collection of mr. horace bleackley_.)] to lord dunsany this record of grim reality in exchange for his beautiful dreams preface in undertaking to prepare an account of this celebrated trial, the editor at the outset fondly trusted that the conviction of "the unfortunate miss blandy" might, upon due inquiry, be found to have been, as the phrase is, a miscarriage of justice. to the entertainment of this chivalrous if unlively hope he was moved as well by the youth, the sex, and the traditional charms of that lady, as by the doubts expressed by divers wiseacres concerning her guilt; but a more intimate knowledge of the facts upon which the adverse verdict rested, speedily disposed of his inconfident expectation. though the evidence sheds but a partial light upon the hidden springs of the dark business in which she was engaged, and much that should be known in order perfectly to appreciate her symbolic value remains obscure, we can rest assured that mary blandy, whatever she may have been, was no victim of judicial error. we watch, perforce, the tragedy from the front; never, despite the excellence of the official "book," do we get a glimpse of what is going on behind the scenes, nor see beneath the immobile and formal mask, the living face; but, when the spectacle of _the fair parricide_ is over, we at least are satisfied that justice, legal and poetic, has been done. few cases in our criminal annals have occasioned a literature so extensive. the bibliography, compiled by mr. horace bleackley in connection with his striking study, "the love philtre" (_some distinguished victims of the scaffold_, london, ),--which, by his courteous permission, is reprinted in the appendix, enumerates no fewer than thirty contemporary tracts, while the references to the case by later writers would of themselves form a considerable list. to this substantial cairn a further stone or two are here contributed. there will be found in the appendix copies of original mss. in the british museum and the public record office, not hitherto published, relating to the case. these comprise the correspondence of lord chancellor hardwicke, mr. secretary newcastle, the solicitor to the treasury, and other government officials, regarding the conduct of the prosecution and the steps taken for the apprehension of miss blandy's accomplice, the hon. william henry cranstoun; a petition of "the noblemen and gentlemen in the neighbourhood of henley-upon-thames" as to the issuing of a proclamation for his arrest, with the opinion thereon of the attorney-general, sir dudley ryder; and the deposition of the person by whose means cranstoun's flight from justice was successfully effected. this deposition is important as disclosing the true story of his escape, of which the published accounts are, as appears, erroneous. among other matter now printed for the first time may be mentioned a letter from the war office to the paymaster-general, directing cranstoun's name to be struck off the half-pay list; and a letter from john riddell, the scots genealogist, to james maidment, giving some account of the descendants of cranstoun. for permission to publish these documents the editor is indebted to the courtesy of mr. a.m. broadley and mr. john a. fairley, the respective owners. the iconography of mary blandy has been made a feature of the present volume, all the portraits of her known to the editor being reproduced. a description of the curious satirical print, "the scotch triumvirate," will be found in the appendix. of special interest is the facsimile of miss blandy's last letter to captain cranstoun, of which the interception, like that of mrs. maybrick's letter to brierley, was fraught with such fateful consequences. the photograph is taken from the original letter in the record office, where the papers connected with the memorable assizes in question have but recently been lodged. for the account of the case contained in the introduction, the editor has read practically all the contemporaneous pamphlets--a tedious and often fruitless task--and has consulted such other sources of information as are now available. he has, however, thought well (esteeming the comfort of his readers above his own reputation for research) to present the product as a plain narrative, unencumbered by the frequent footnotes which citation of so many authorities would otherwise require--the rather that any references not furnished by the bibliography are sufficiently indicated in the text. finally, the editor would express his gratitude to mr. horace bleackley and mr. a.m. broadley for their kindness in affording him access to their collections of _blandyana_, including rarities (to quote an old title-page) "nowhere to be found but in the closets of the curious," greatly to the lightening of his labours and the enrichment of the result. w.r. oxford terrace, edinburgh, april, . contents. introduction table of dates the trial-- tuesday, rd march, . the indictment opening speeches for the prosecution. hon. mr. bathurst mr. serjeant hayward evidence for the prosecution. . dr. addington . dr. lewis . dr. addington (recalled) . benjamin norton . mrs. mary mounteney . susannah gunnell . elizabeth binfield . dr. addington (recalled) . alice emmet . robert littleton . robert harmon . richard fisher . mrs. lane . mr. lane the prisoner's defence evidence for the defence. . ann james . elizabeth binfield (recalled) . mary banks . edward herne . thomas cawley . thomas staverton . mary davis . robert stoke motion by mr. ford to call another witness refused hon. mr. bathurst's closing speech for the prosecution statement by the prisoner mr. baron legge's charge to the jury the verdict the sentence appendices. i. proceedings before the coroner relative to the death of mr. francis blandy ii. copies of original letters in the british museum and public record office, relating to the case of mary blandy iii. a letter from a clergyman to miss mary blandy, now a prisoner in oxford castle, with her answer thereto; as also miss blandy's own narrative of the crime for which she is condemned to die iv. miss mary blandy's own account of the affair between her and mr. cranstoun, from the commencement of their acquaintance in the year to the death of her father in august, , with all the circumstances leading to that unhappy event v. letter from miss blandy to a clergyman in henley vi. contemporary advertisement of a love philtre vii. contemporary account of the execution of mary blandy viii. letter from the war office to the paymaster-general, striking cranstoun's name off the half-pay list ix. the confessions of cranstoun-- . cranstoun's own version of the facts . captain cranstoun's account of the poisoning of the late mr. francis blandy x. extract from a letter from dunkirk anent the death of cranstoun xi. letter from john biddell, the scots genealogist, to james maidment, regarding the descendants of cranstoun xii. bibliography of the blandy case xiii. description of the satirical print "the scotch triumvirate" list of illustrations. miss blandy in her cell in oxford castle frontispiece _from an unpublished sepia drawing in the collection of mr. horace bleackley._ facsimile of the intercepted letter to cranstoun written by mary blandy _from the original ms. in the public record office._ miss blandy _from a mezzotint by t. ryley, after l. wilson, in the collection of mr. a.m. broadley._ miss mary blandy in oxford castle gaol _from an engraving in the british museum._ captain cranstoun and miss blandy _from an engraving in the british museum._ miss mary blandy _from an engraving by b. cole, after a drawing for which she sat in oxford castle._ miss molly blandy, taken from the life in oxford castle _from an engraving in the collection of mr. a.m. broadley._ miss mary blandy, with scene of her execution _from an engraving by b. cole, after an original painting._ captain william henry cranstoun, with his pompous funeral procession in flanders _from an engraving by b. cole._ the scotch triumvirate _from a satirical print in the collection of mr. horace bleackley._ mary blandy. introduction. in the earlier half of the eighteenth century there lived in the pleasant town of henley-upon-thames, in oxfordshire, one francis blandy, gentleman, attorney-at-law. his wife, née mary stevens, sister to mr. serjeant stevens of culham court, henley, and of doctors' commons, a lady described as "an emblem of chastity and virtue; graceful in person, in mind elevated," had, it was thought, transmitted these amiable qualities to the only child of the marriage, a daughter mary, baptised in the parish church of henley on th july, . mr. blandy, as a man of old family and a busy and prosperous practitioner, had become a person of some importance in the county. his professional skill was much appreciated by a large circle of clients, he acted as steward for most of the neighbouring gentry, and he had held efficiently for many years the office of town-clerk. but above the public respect which his performance of these varied duties had secured him, mr. blandy prized his reputation as a man of wealth. the legend had grown with his practice and kept pace with his social advancement. the blandys' door was open to all; their table, "whether filled with company or not, was every day plenteously supplied"; and a profuse if somewhat ostentatious hospitality was the "note" of the house, a comfortable mansion on the london road, close to henley bridge. burn, in his _history of henley_, describes it as "an old-fashioned house near the white hart, represented in the view of the town facing the title-page" of his volume, and "now [ ] rebuilt." the white hart still survives in hart street, with its courtyard and gallery, where of yore the town's folk were wont to watch the bear-baiting; one of those fine old country inns which one naturally associates with pickwickian adventure. in such surroundings the little mary, idolised by her parents and spoiled by their disinterested guests, passed her girlhood. she is said to have been a clever, intelligent child, and of ways so winning as to "rapture" all with whom she came in contact. she was educated at home by her mother, who "instructed her in the principles of religion and piety, according to the rites and ceremonies of the church of england." to what extent she benefited by the good dame's teaching will appear later, but at any rate she was fond of reading--a taste sufficiently remarkable in a girl of her day. at fourteen, we learn, she was mistress of those accomplishments which others of like station and opportunities rarely achieve until they are twenty, "if at all"; but her biographers, while exhausting their superlatives on her moral beauties, are significantly silent regarding her physical attractions. like many a contemporary "toast," she had suffered the indignity of the smallpox; yet her figure was fine, and her brilliant black eyes and abundant hair redeemed a face otherwise rather ordinary. when to such mental gifts and charm of manner was added the prospect of a dower of ten thousand pounds--such was the figure at which public opinion put it, and her father did not deny that gossip for once spoke true--little wonder that mary was considered a "catch" as well by the "smarts" of the place as by the military gentlemen who at that time were the high ornaments of henley society. mr. blandy, business-like in all things, wanted full value for his money; as none of mary's local conquests appeared to promise him an adequate return, he reluctantly quitted the pen and, with his wife and daughter, spent a season at bath, then the great market-place of matrimonial bargains. "as for bath," thackeray writes of this period, "all history went and bathed and drank there. george ii. and his queen, prince frederick and his court, scarce a character one can mention of the early last century but was seen in that famous pump room, where beau nash presided, and his picture hung between the busts of newton and pope." here was famous company indeed for an ambitious little country attorney to rub shoulders with in his hunt for a son-in-law. it is claimed for miss blandy by one of her biographers that her vivacity, wit, and good nature were such as to win for her an immediate social success; and she entered into all the gaieties of the season with a heart unburdened by the "business" which her father sought to combine with pleasures so expensive. she is even said to have had the honour of dancing with the prince of wales. meanwhile, the old gentleman, appearing "genteel in dress" and keeping a plentiful table, lay in wait for such eligible visitors as should enter his parlour. the first to do so with matrimonial intent was a thriving young apothecary, but mr. blandy quickly made it plain that mary and her £ , were not to be had by any drug-compounding knave who might make sheep's eyes at her, and the apothecary returned to his gallipots for healing of his bruised affections. his place was taken by mr. h----, a gentleman grateful to the young lady and personally desirable, but of means too limited to satisfy her parents' views, a fact conveyed by them to the wooer "in a friendly and elegant manner," which must have gone far to assuage his disappointment. the next suitor for "this blooming virgin," as her biographer names her, had the recommendation of being a soldier. mr. t----, too, found favour with the damsel. his fine address was much appreciated by her mamma, who, being a devotee of fashion, heartily espoused his cause; but again the course of true love was barred by the question of settlements as broached by the old lawyer, and the man of war "retired with some resentment." there was, however, no lack of candidates for mary's hand and dower. captain d---- at once stepped into the breach and gallantly laid siege to the fair fortress. at last, it seemed cupid's troublesome business was done; the captain's suit was agreeable to all parties, and the couple became engaged. mary's walks with her lover in the fields of henley gave her, we read, such exquisite delight that she frequently thought herself in heaven. but, alas, the stern summons of duty broke in upon her temporary eden: the captain was ordered abroad with his regiment on active service, and the unlucky girl could but sit at home with her parents and patiently abide the issue. among mr. blandy's grand acquaintances was general lord mark kerr, uncle of lady jane douglas, the famous heroine of the great douglas cause. his lordship had taken at henley a place named "the paradise," probably through the agency of the obsequious attorney, whose family appear to have had the _entrée_ to that patrician abode. dining with her parents at lord mark's house in the summer of , mary blandy encountered her fate. that fate from the first bore but a sinister aspect. among the guests was one captain the hon. william henry cranstoun, a soldier and a scot, whose appearance, according to a diurnal writer, was unprepossessing. "in his person he is remarkably ordinary, his stature is low, his face freckled and pitted with the smallpox, his eyes small and weak, his eyebrows sandy, and his shape no ways genteel; his legs are clumsy, and he has nothing in the least elegant in his manner." the moral attributes of this ugly little fellow were only less attractive than his physical imperfections. "he has a turn for gallantry, but nature has denied him the proper gifts; he is fond of play, but his cunning always renders him suspected." he was at this time thirty-two years of age, and, as the phrase goes, a man of pleasure, but his militant prowess had hitherto been more conspicuous in the courts of venus than in the field of mars. the man was typical of his day and generation: should you desire his closer acquaintance you will find a lively sketch of him in _joseph andrews_, under the name of beau didapper. if mary was the eve of this henley "paradise," the captain clearly possessed many characteristics of the serpent. as first-lieutenant of sir andrew agnew's regiment of marines, he had been "out"--on the wrong side, for a scot--in the ' , and the butcher cumberland having finally killed the cause at culloden on th april, this warrior was now in henley beating up recruits to fill the vacancies in the hanoverian lines caused by the valour of the "rebels." such a figure was a commonplace of the time, and mr. blandy would not have looked twice at him but for the fact that it appeared lord mark was his grand-uncle. the old lawyer, following up this aristocratic scent, found to his surprise and joy that the little lieutenant, with his courtesy style of captain, was no less a person than the fifth son of a scots peer, william, fifth lord cranstoun, and his wife, lady jane kerr, eldest daughter of william, second marquis of lothian. true, he learned the noble union had been blessed with seven sons and five daughters; my lord cranstoun had died in , and his eldest son, james, reigned in his stead. the captain, a very much "younger" son, probably had little more than his pay and a fine assortment of debts; still, one cannot have everything. the rights of absent captain d---- were forgotten, now that there was a chance to marry his daughter to a man who called the daughter of an earl grandmother, and could claim kinship with half the aristocracy of scotland; and mr. blandy frowned as he called to mind the presumption of the bath apothecary. how far matters went at this time we do not know, for cranstoun left henley in the autumn and did not revisit "the paradise" till the following summer. meanwhile captain d---- returned from abroad, but unaccountably failed to communicate with the girl he had the year before so reluctantly left behind him. mary's uncles, "desirous of renewing a courtship which they thought would turn much to the honour and benefit of their niece," intervened; but captain d----, though "polite and candid," declined to renew his pretensions, and the affair fell through. whether or not he had heard anything of the cranstoun business does not appear. according to miss blandy's _own account_, it was not until their second meeting at lord mark kerr's in the summer of that the patrician but unattractive cranstoun declared his passion. she also states that in doing so he referred to an illicit entanglement with a scottish lady, falsely claiming to be his wedded wife, and that she (mary) accepted him provisionally, "till the invalidity of the pretended marriage appeared to the whole world." but here, as we shall presently see, the fair authoress rather antedates the fact. next day cranstoun, formally proposing to the old folks for their daughter's hand, was received by them literally with open arms, henceforth to be treated as a son; and when, after a six weeks' visit to bath in company with his gouty kinsman, the captain returned to henley, it was as the guest of his future father-in-law, of whose "pious fraud" in the matter of the £ , dowry; despite his shrewdness, he was unaware. though the sycophantic attorney would probably as lief have housed a monkey of lineage so distinguished, old mrs. blandy seems really to have adored the foxy little captain for his _beaux yeux_. doubtless he fooled the dame to the top of her bent. for a time things went pleasantly enough in the old house by the bridge. the town-clerk boasted of his noble quarry, the mother enjoyed for the first time the company and conversation of a man of fashion, and mary renewed amid the henley meadows those paradisiacal experiences which formerly she had shared with faithless captain d----. but once more her happiness received an unexpected check. lord mark kerr, a soldier and a gentleman, becoming aware of the footing upon which his graceless grand-nephew was enjoying the blandys' hospitality, wrote to the attorney the amazing news that his daughter's lover already had a wife and child living in scotland. the facts, so far as we know them, were these. on nd may, , william henry cranstoun was privately married at edinburgh to anne, daughter of david murray, merchant in leith, a son of the late sir david murray of stanhope, baronet. as the lady and her family were jacobite and roman catholic, the fact of the marriage was not published at the time for fear of prejudicing the gallant bridegroom's chances of promotion. the couple lived together "in a private manner" for some months, and in november the bride returned to her family, while the captain went to london to resume his regimental duties. they corresponded regularly by letter. cranstoun wrote to his own and the lady's relatives, acknowledging that she had been his wife since may, but insisting that the marriage should still be kept secret; and on learning that he was likely to become a father, he communicated this fact to my lord, his brother. lady cranstoun invited her daughter-in-law to nether crailing, the family seat in roxburghshire, there to await the interesting event, but the young wife, fearing that presbyterian influences would be brought to bear upon her, unfortunately declined, which gave offence to lady cranstoun and aroused some suspicion regarding the fact of the marriage. at edinburgh, on th february, , mrs. cranstoun gave birth to a daughter, who was baptised by a minister of the kirk in newbattle, according to one account, in presence of members of both parents' families; and, by the father's request, one of his brothers held her during the ceremony. in view of these facts it must have required no common effrontery on the part of cranstoun to disown his wife and child, as he did in the following year. the country being then in the throes of the last jacobite rising, and his wife's family having cast in their lot with prince charlie, our gallant captain perceived in these circumstances a unique opportunity for ridding himself of his marital ties. the lady was a niece of john murray of broughton, the prince's secretary who served the cause so ill; her brother, the reigning baronet, was taken prisoner at culloden, tried at carlisle, and sentenced to death, but owing to his youth, was reprieved and transported instead; so cranstoun thought the course comparatively clear. his position was that miss murray had been his mistress, and that although he had promised to marry her if she would change her religion for his own purer presbyterian faith, and as the lady refused to do so, he was entirely freed from his engagement. with cynical impudence he explained his previous admission of the marriage as due to a desire to "amuse" her relatives and save her honour. in october, , his wife, by the advice of her friends and in accordance with scots practice, raised in the commissary court at edinburgh an action of declarator of marriage against her perfidious spouse, and the case was still pending before the commissaries when lord mark kerr, as we have seen, "gave away" his grand-nephew to the blandys. the old attorney was justly incensed at the unworthy trick of which he had been the victim. he had designed, indeed, on his own account, a little surprise for his son-in-law in the matter of the mythical dower, but that was another matter; so, in all the majesty of outraged fatherhood, he sought an interview with his treacherous guest. that gentleman, whose acquaintance with "tight corners" was, doubtless, like mr. waller's knowledge of london, extensive and peculiar, rose gallantly to the occasion. a firm believer in the £ , _dot_, he could not, of course, fully appreciate the moral beauty of mr. blandy's insistence on the unprofitableness of deceit; but, taxed with being a married man, "as i have a soul to be saved," swore he, "i am not, nor ever was!" the lady had wilfully misrepresented their equivocal relations, and the proceedings in the scottish courts meant, vulgarly, blackmail. both families knew the true facts, and lord mark's interference was the result of an old quarrel between them, long since by him buried in oblivion, but on account of which his lordship, as appeared, still bore him a grudge. the action would certainly be decided in his favour, when nothing more would be heard of miss murray and her fraudulent claims. the affair was, no doubt, annoying, but such incidents were not viewed too seriously by people of fashion--here the captain would delicately take a pinch, and offer his snuff-box (with the cranstoun arms: _gules_, three cranes _argent_) to the baffled attorney. on the receipt of lord mark's letter, mrs. blandy, womanlike, believed the worst: "her poor polly was ruined." but her sympathies were so far enlisted on behalf of the fascinating intended that she eagerly clutched at any explanation, however lame, which would put things upon the old footing. she proved a powerful advocate; and, in the end, mr. blandy, accepting his guest's word, allowed the engagement to continue in the meantime, until the result of the legal proceedings should be known. he was as loath to forego the chance of such an aristocratic connection as was his wife to part from so "genteel" a friend; while mary blandy--well, the damsels of her day were not morbidly nice in such matters, more than once had the nuptial cup eluded her expectant lips, _enfin_, she was nearing her thirtieth year: such an opportunity, as mr. bunthorne has it, might not occur again. with the proverbial blindness of those unwilling to see, the old man did nothing further in regard to lord mark kerr's communication; that nobleman, annoyed at the indifference with which his well-meant warning had been received, forbade his kinsman the house, and the blandys were thus deprived of their only means of knowledge as to the doings of their ambiguous guest. for the movements of that gentleman from this time until the first "date" in the case, august, , we must rely mainly upon the narrative given by his fair fiancée in her _own account_, and, unfortunately, after the manner of her sex, she is somewhat careless of dates. this first visit of cranstoun lasted "five or six months"--from the autumn of till the spring of --when he went to london on the footing that mary, with her father's permission, should "stay for him" till the "unhappy affair" with his _soi-disant_ spouse was legally determined. pending this desired result, the lovers maintained a vigorous correspondence. sometime after his departure, mrs. blandy and her daughter went on a visit to turville court, the house of a friend named mrs. pocock, of whom we shall hear again. while there, the old lady became suddenly, and as was at first feared fatally, ill. her constant cry, according to mary, was, "let cranstoun be sent for," and no sooner had that insignificant warrior posted from southampton to the sick-room than the patient began to mend. she declared, now that he had come, she would soon be well, and refused to take her medicines from any hand but his. mr. blandy, also summoned in haste, was much out of humour at "the great expense" incurred, and proposed forthwith to take his wife home, where "neither the physician's fees nor the apothecary's journeys could be so expensive"; and whenever the invalid was able to travel, the whole party, including the indispensable captain, returned to henley. on the strength of the old lady's continued illness, cranstoun contrived to "put in" another six months' free board and lodging under the blandys' hospitable roof, until his regiment was "broke" at southampton, when he set out for london. during this visit, says mary, her father was sometimes "very rude" to his guest, which, in the circumstances, is not surprising. meanwhile, on st march, , the commissary court had decreed william henry cranstoun and anne murray to be man and wife and the child of the marriage to be their lawful issue, and had decerned the captain to pay the lady an annuity of £ sterling for her own aliment and £ for their daughter's, so long as she should be maintained by her mother, and further had found him liable in expenses, amounting to £ . the proceedings disclose a very ugly incident. shortly after leaving his wife, as before narrated, cranstoun wrote to her that his sole chance of promotion in the army depended on his appearing unmarried, and with much persuasion he at length prevailed upon her to copy a letter, framed by him, to the effect that she had never been his wife. once possessed of this document in her handwriting, the little scoundrel sent copies of it to his own and his wife's relatives in scotland, whereby she suffered much obloquy and neglect, and when that unhappy lady raised her action of declarator, with peculiar baseness he lodged the letter in process. fortunately, she had preserved the original draft, together with her faithless husband's letters thereanent. this judgment was, for the gallant defender, now on half-pay, a veritable _débâcle_, and we may be sure that the confiding blandys would have heard no word of it from him; but mrs. cranstoun, having learned something of the game her spouse was playing at henley, herself wrote to mr. blandy, announcing the decision of the commissaries and sending for his information a copy of the decree in her favour. this, surely, should have opened the eyes even of a provincial attorney, but cranstoun, while admitting the fact, induced him to believe, the wish being father to the thought, that the court of first instance, as was not unprecedented, had erred, and that he was advised, with good hope of success, to appeal against the judgment to the court of session. finally to dispose of the captain's legal business, it may now be said that the appeal was in due course of time dismissed, and the decision of the commissaries affirmed. thus the marriage was as valid as scots law could make it. true, as is pointed out by one of his biographers, he might have appealed to the house of lords, "but did not, as it seldom happens that they reverse a decree of the lords of session!" nowadays, we may assume, cranstoun would have taken the risk. the result of this protracted litigation was never known to mr. blandy. in the spring of , "a few months" after cranstoun's departure, miss blandy and her mother went to london for the purpose of taking medical advice as to the old lady's health, which was still unsatisfactory. they lived while in town with mrs. blandy's brother, henry stevens, the serjeant, in doctors' commons. cranstoun, with whom mary had been in constant correspondence, waited upon the ladies the morning after their arrival, and came daily during their visit. on one occasion, mary states, he brought his elder brother, the reigning baron, to call upon them. this gentleman was james, sixth lord cranstoun, who had succeeded to the title on the death of his father in . what was his lordship's attitude regarding the "perplexing affair" in scotland she does not inform us; but mr. serjeant stevens refused to countenance the attentions of the entangled captain. mrs. blandy wept because her brother would not invite cranstoun to dinner, and it was arranged that, to avoid "affronts," she should receive the captain's visits in her own room. but her friend mrs. pocock of turville court had a house in st. james's square. "hither mr. cranstoun perpetually came," says mary, "when he understood that i was there;" so they were able to dispense with the serjeant's hospitality. one day she and her mother were bidden to dine at mrs. pocock's, to meet my lord garnock (the future lord crauford). cranstoun and their hostess called for them in a coach, and in the strand whom should the party encounter but mr. blandy, come to town on business. "for god's sake, mrs. pocock, what do you with this rubbish?" cried the attorney, stopping the coach. "rubbish!" quoth the lady, "your wife, your daughter, and one who may be your son?" "ay," replied the old man, "they are very well matched; 'tis a pity they should ever be asunder!" "god grant they never may," simpered the ugly lover; "don't you say amen, papa?" but amen, as appears, stuck in mr. blandy's throat: he declined mrs. pocock's invitation to join them, and shortly thereafter returned to henley. during this visit to town mary blandy states that cranstoun proposed a secret marriage "according to the usage of the church of england"--apparently with the view of testing the relative strength of the nuptial knot as tied by their respective churches. mary, with hereditary caution, refused to make the experiment unless an opinion of counsel were first obtained, and cranstoun undertook to submit the point to mr. murray, the solicitor-general for scotland. whatever view, if any, that learned authority expressed regarding so remarkable an expedient, mary heard no more of the matter; but in cranstoun's _account_ the marriage is said to have taken place at her own request, "lest he should prove ungrateful to her after so material an intimacy." how "material" in fact was the intimacy between them at this time we can only conjecture. mrs. blandy seems to have made the most of her visit to the metropolis, for, according to her daughter, she had contracted debts amounting to forty pounds, and as she "durst not" inform mr. blandy, she borrowed that sum from her obliging future son-in-law. by what means the captain, in the then state of his finances, came by the money mary fails to explain. being thus, in a pecuniary sense, once more afloat, the ladies, taking grateful leave of cranstoun, went home to henley. we hear nothing further of their doings until some six months after their return, when on thursday, th september , mrs. blandy became seriously ill. mr. norton, the henley apothecary who attended the family, was sent for, and her brother, the rev. john stevens, of fawley, who, "with other country gentlemen meeting to bowl at the bell inn," chanced then to be in the town, was also summoned. it was at first hoped that the old lady would rally as on the former occasion but she gradually grew worse, notwithstanding the attentions of the eminent dr. addington, brought from reading to consult upon the case. her husband, her daughter, and her two brothers were with her until the end, which came on saturday, th september. to the last the dying woman clung to her belief in the good faith of her noble captain: "mary has set her heart upon cranstoun; when i am gone, let no one set you against the match," were her last words to her husband. he replied that they must wait till the "unhappy affair in scotland" was decided. the complaint of which mrs. blandy died was, as appears, intestinal inflammation, but, as we shall see later, her daughter was popularly believed to have poisoned her. however wicked mary blandy may have been, she well knew that by her mother's death she and cranstoun lost their best friend. an old acquaintance and neighbour of mrs. blandy, one mrs. mounteney, of whom we shall hear again, came upon a visit to the bereaved family. mrs. blandy, on her deathbed, had commended this lady to her husband, in case he should "discover an inclination to marry her"--she already was mary's godmother; but mrs. mounteney was destined to play another part in the subsequent drama. miss blandy broke the sad news by letter to her lover in london, and pressed him to come immediately to henley; but the gallant officer replied that he was confined to the house for fear of the bailiffs, and suggested the propriety of a remittance from the mistress of his heart. mary promptly borrowed forty pounds from mrs. mounteney, fifteen of which she forwarded for the enlargement of the captain, who, on regaining his freedom, came to henley, where he remained some weeks. francis blandy was much affected by the loss of his wife. at first he seems to have raised no objection to cranstoun's visit, but soon mary had to complain of the "unkind things" which her father said both to her lover and herself. there was still no word from scotland, except a "very civil" letter of condolence from my lady cranstoun, accompanied by a present of kippered salmon--apparently intended as an antidote to grief; but though the old man was gratified by such polite attentions, his mind was far from easy. he was fast losing all faith in the vision of that splendid alliance by which he had been so long deluded, and did not care to conceal his disappointment from the person mainly responsible. on this visit mention was first made by cranstoun of the fatal powder of which we shall hear so much. miss blandy states that, _apropos_ to her father's unpropitious attitude, her lover "acquainted her of the great skill of the famous mrs. morgan," a cunning woman known to him in scotland, from whom he had received a certain powder, "which she called love-powders"--being, as appears, the scottish equivalent to the _poculum amatorium_ or love philtre of the romans. mary said she had no faith in such things, but cranstoun assured her of its efficacy, having once taken some himself, and immediately forgiven a friend to whom he had intended never to speak again. "if i had any of these powders," said he, "i would put them into something mr. blandy should drink." such is mary's account of the inception of the design upon her father's love--or life. there for the time matters rested. "before he left henley for the last time," writes lady russell, to whose interesting account we shall later refer, "captain cranstoun made an assignation with miss blandy to meet her in the grounds of park place, which had long been their trysting-place; and here it was that in a walk which still goes by the name of 'blandy's walk,' he first broached his diabolical plan." park place, according to the same authority, had shortly before been purchased by general conway and lady ailesbury from mr. blandy, as "trustee" of the property. a "dunning" letter following the impecunious captain to his peaceful retreat alarmed the lovers, for the appearance of a bailiff in the respectable house in hart street would, for mr. blandy, have been, as the phrase goes, the last straw. fortunately, mary had retained against such a contingency the balance of mrs. mounteney's loan; and with another fifteen pounds of that lady's in his pocket, the captain left for london to liquidate his debt. from that time till august, , the shadow of his sinister guest did not darken the attorney's door. on the first of that month cranstoun wrote that he proposed to wait upon him. "he must come, i suppose," sighed the old man, and allowed mary to write that the visitor would be received. doubtless, he faintly hoped that the scottish difficulty was at last removed. but the captain, when he came, brought nothing better than the old empty assurances, and his host did not conceal how little weight he now attached to such professions. the visit was an unpleasant one for all parties, and the situation was rapidly becoming impossible. mary "seldom rose from the table without tears." her father spent his evenings at "the coffee-house," that he might see as little as possible of the unwelcome guest. one morning, mary states, cranstoun put some of the magic powder in the old gentleman's tea, when, _mirabile dictu_, mr. blandy, who at breakfast had been very cross, appeared at dinner in the best of humours, and continued so "all the time mr. cranstoun stayed with him"! after this, who could doubt the beneficent efficacy of the wise woman's drug? during one of their daily walks this singular lover informed his betrothed that he had a secret to communicate, to wit, that over and above the scottish complication, "he had a daughter by one miss capel" a year before he met the present object of his desires. miss blandy, with much philosophy, replied that she hoped he now saw his follies and would not repeat them. "if i do," said cranstoun, "i must be a villain; you alone can make me happy in this world; and by following your example, i hope i shall be happy in the next." a day or two afterwards, when cranstoun was abroad, mary, so far anticipating her wifely duties, entered his room in order to look out his things for the wash. she found more "dirty linen" than she expected. in an unlocked trunk was a letter of recent date, addressed to the gallant captain by a lady then enjoying his protection in town. even miss blandy's robust affection was not, for the moment, able to overlook a treachery so base. she locked the trunk, put the key in her pocket, and at the first opportunity handed it to cranstoun, with the remark that he should in future be more careful of his private correspondence. a disgusting scene ensued. for two hours the wretched little captain wept and raved, imploring her forgiveness. on his knees, clinging to the skirts of her gown, he swore he would not live till night unless she pardoned his offence. mary asked him to leave henley at once; she would not expose him, and their engagement "might seem to go off by degrees." but the miserable creature conjured her by her mother's dying words not to give him up, vowing never to repeat "the same provocations." in the end mary foolishly yielded; one wonders at the strength of that abnormal passion by which she was driven to accept a position so impossible for a decent and intelligent girl. soon after this incident cranstoun was summoned to scotland, where his mother, lady cranstoun, was "extremely ill." "good god!" cried this admirable son, "what shall i do? i have no money to carry me thither, and all my fortune is seized on but my half-pay!" for the third time miss blandy came to the rescue, even giving him back a miniature of his ugly countenance with which he had formerly presented her. at six o'clock next morning he set out for the north in a post-chaise. the old attorney rose early with good heart to speed the parting guest, and furnished him with a half-pint bottle of rum for the journey. mary says they "all shed tears"; if so, hers were the only genuine tokens of regret. as she waved good-bye to her lover and watched the departing chaise till it was lost to view along the london road, she little thought that, although his sinister influence would remain with her to the end, his graceless person had passed from her sight for ever. it was the month of november, , when cranstoun took final leave of henley. in october, a year after mrs. blandy's death, divers curious phenomena had been observed in the old house by the bridge. cranstoun professed that he could get no sleep o' nights, in his room "over the great parlour," by reason of unearthly music sounding through the chamber after midnight, for two hours at a time. on his informing his host of the circumstance, mr. blandy caustically observed, "it was scotch music, i suppose?" from which miss blandy inferred that he was not in a good humour--though the inference seems somewhat strained. this manifestation was varied by rappings, rustlings, banging of doors, footfalls on the stairs, and other eerie sounds, "which greatly terrified mr. cranstoun." the old man was plainly annoyed by these stories, though he merely expressed the opinion that his guest was "light-headed." but when cranstoun one morning announced that he had been visited in the night, as the clock struck two, by the old gentleman's wraith, "with his white stockings, his coat on, and a cap on his head," mr. blandy "did not seem pleased with the discourse," and the subject was dropped. but mary, mentioning these strange matters to the maids, expressed the fear that such happenings boded no good to her father, and told how mr. cranstoun had learned from a cunning woman in scotland that they were the messengers of death, and that her father would die within the year. whatever weight might attach to these gloomy prognostications of the mysterious mrs. morgan, it became obvious that from about that date francis blandy's health began to fail. he was in the sixty-second year of his age, and he suffered the combined assault of gout, gravel, and heartburn. the state of irritation and suspense consequent upon his daughter's relations with her lover must greatly have aggravated his troubles. it was assumed by the prosecution, on the ground of mr. blandy losing his teeth through decay, that he had begun to manifest the effects of poison soon after cranstoun left henley in november, , but from the evidence given at the trial it seems improbable that anything injurious was administered to him until the receipt in the following april of that deadly present from scotland, "the powder to clean the pebbles with." mr. norton, the medical man who attended him for several years, stated that the last illness mr. blandy had before the fatal one of august, , was in july, . the stuff that cranstoun had put into the old gentleman's tea in august could, therefore, have no reference to the illness of the previous month, and certainly was not the genuine preparation of mrs. morgan. if mary blandy were not in fact his accomplice later, it may have been sifted sugar or something equally simple, to induce her to believe the magic powder harmless. having at length got his would-be son-in-law out of the house, mr. blandy determined to be fooled no further; he ordered mary to write to cranstoun telling him on no account to show his face again at henley until his matrimonial difficulties were "quite decided." tears and entreaties were of no avail; like all weak characters, mr. blandy, having for once put down his foot, was obdurate. this ultimatum she duly communicated to her lover in the north; if we could know in what terms and how replied to by him, we should solve the riddle. hitherto they seem to have trusted to time and the old man's continued credulity to effect their respective ends, but now, if miss blandy were to secure a "husband" and cranstoun lay hands upon her £ , , some definite step must be taken. both knew, what was as yet unknown to mr. blandy, that the appeal had long since been dismissed, and that while his wife lived cranstoun could never marry mary. at any moment her father might learn the truth and alter, by the stroke of a pen, the disposition of his fortune. that they openly agreed to remove by murder the obstacle to their mutual desires is unlikely. cranstoun, as appears from all the circumstances, was the instigator, as he continued throughout the guiding spirit, of the plot; probably nothing more definite was said between them than that the "love powder" would counteract the old man's opposition; but from her subsequent conduct, as proved by the evidence, it is incredible that mary acted in ignorance of the true purpose of the wise woman's prescription. in april, or the beginning of may, , by miss blandy's statement, she received from her lover a letter informing her that he had seen his old friend mrs. morgan, who was to oblige him with a fresh supply of her proprietary article, which he would send along with some "scotch pebbles" for his betrothed's acceptance. "ornaments of scotch pebbles," says lady russell, "were the extreme of fashion in the year ." according to the opening speech for the crown, both powder and pebbles arrived at henley in april; mary says they did not reach her hands till june. susan gunnell, one of the maidservants, stated at the trial that there were two consignments of pebbles from scotland; one "in a large box of table linen," which came "early in the spring," and another in "a small box," some three months before her master's death. cranstoun's instructions were "to mix the powder in tea." while professing to doubt "such efficacy could be lodged in any powder whatsoever," and expressing the fear "lest it should impair her father's health," mary consented to give the love philtre a fair trial. "this some mornings after i did," she says in her _own account_. of the earlier phases of francis blandy's fatal illness, which began in this month of june, the evidence tells us nothing more definite than that he suffered much internal pain and frequently was sick; but two incidents occurring at that time throw some light upon the cause of his complaint. it was the habit of the old man to have his tea served "in a different dish from the rest of the family." one morning susan gunnell, finding that her master had left his tea untasted, drank it; for three days she was violently sick and continued unwell for a week. on another occasion mr. blandy's tea being again untouched by him, it was given to an old charwoman named ann emmet, often employed about the house. she shortly was seized with sickness so severe as to endanger her life. that mary knew of both these mysterious attacks is proved; she was much concerned at the illness of the charwoman, who was a favourite of hers, and she sent white wine, whey, and broth for the invalid's use. it is singular that such experiences failed to shake miss blandy's faith in the harmless nature of mrs. morgan's nostrum, but they at least made her realise that tea was an unsuitable vehicle for its exhibition, and she communicated the fact to cranstoun. her bloodthirsty adviser, however, was able to meet the difficulty. on th july he wrote to her, "in an allegorical manner," as follows:--"i am sorry there are such occasions to clean your pebbles; you must make use of the powder to them by putting it in anything of substance wherein it will not swim a-top of the water, of which i wrote to you in one of my last. i am afraid it will be too weak to take off their rust, or at least it will take too long a time." as a further inducement to her to hasten the work in hand, he described the beauties of scotland, and mentioned that his mother, lady cranstoun, was having an apartment specially fitted up at lennel house for mary's use. the text of this letter was quoted by bathurst in his opening speech for the crown, but the report of the trial does not bear that the document itself was produced, or that it was proved to be in cranstoun's handwriting. the letter is quoted in the _secret history_ and referred to in other contemporary tracts, and the fact of its existence appears to have been well known at the time. further, miss blandy in her _own account_ distinctly alludes to its receipt, and no objection was taken by her or her counsel to the reading of it at the trial. the point is of importance for two reasons. firstly, this letter, if written by cranstoun and received by mary affords the strongest presumptive proof of their mutual guilt. had their design been, as she asserted, innocent, what need to adopt in a private letter this "allegorical" and guarded language? secondly, mary, as we shall see, found means before her arrest to destroy the half of the cranstoun correspondence in her keeping, and it would have been more satisfactory if the prosecution had shown how this particular letter escaped to fall into their hands. that she herself fabricated it in order to inculpate her accomplice is highly improbable; had she done so, as mr. bleackley has pointed out, its contents would have been more consistent with her defence. on the evening of sunday, th august, susan gunnell, by order of her mistress, made in a pan a quantity of water gruel for her master's use. on monday, the th, miss blandy was seen by the maids at mid-day stirring the gruel with a spoon in the pantry. she remarked that she had been eating the oatmeal from the bottom of the pan, "and taking some up in the spoon, put it between her fingers and rubbed it." that night some of the gruel was sent up in a half-pint mug by mary for her father's supper. when doing so, she repeated her curious action of the morning, taking a little in a spoon and rubbing it. on tuesday, the th, the whole house was in confusion: mr. blandy had become seriously ill in the night, with symptoms of violent pain, vomiting, and purging. mr. norton, the henley apothecary who attended the family, was summoned--at whose instance does not appear--and on arriving at the house he found the patient suffering, as he thought, from "a fit of colic." he asked him if he had eaten anything that could have disagreed with him; and mary, who was in the bedroom, replied "that her papa had had nothing that she knew of, except some peas on the saturday night before." not a word was said about the gruel; and mr. norton had no reason to suspect poison. he prescribed, and himself brought certain remedies, promising to call next day. in the afternoon miss blandy, in the kitchen, asked elizabeth binfield, the cook, this strange question: "betty, if one thing should happen, will you go with me to scotland?" to which betty cautiously replied, "if i should go there and not like it, it would be expensive travelling back again." that evening susan was told to warm some of the gruel for her master's supper; she did so, and mary herself carried it to him in the parlour. on going upstairs to bed, he was repeatedly sick, and called to susan to bring him a basin. next morning, wednesday, the th, betty binfield brought down from the bedroom the remains of mr. blandy's supper. old ann emmet, the charwoman, chanced, unhappily for herself, to be in the kitchen. susan told her she might eat what had been left, which she did, with the result that she too became violently ill, with symptoms similar to those of mr. blandy, and even by the following spring had not sufficiently recovered to be able to attend the trial of her benefactress. when susan, at nine o'clock, went up to dress her mistress and informed her of her protegee's seizure, miss blandy feelingly remarked that she was glad she had not been downstairs, as it would have shocked her to see "her poor dame" so ill. the doctor called in the forenoon and found his patient easier. later in the day mary said to susan that as her master had taken physic, he would require more gruel, but as there was still some left, she need not make it fresh "as she was ironing." susan replied that the gruel was stale, being then four days old, and, further, that having herself tasted it, she felt very ill, upon which facts mary made no comment. she thoughtfully warned the cook, however, that if susan ate more of the gruel "she might do for herself--a person of her age," from which we must infer that susan was much her master's senior; how, otherwise, was the old man to take it daily with impunity? the strange circumstances attending this gruel aroused the maids' suspicions. they examined the remanent contents of the pan--the aged but adventurous susan again tasting the fatal mixture was sick for many days--and found a white, gritty "settlement" at the bottom. they prudently put the pan in a locked closet overnight. next day, thursday, the th, susan carried it to their neighbour, mrs. mounteney, who sent for mr. norton, the apothecary, by whom the contents were removed for subsequent examination, the result of which will in due course appear. meanwhile, mary's uncle, the rev. mr. stevens, of fawley, having heard of his brother-in-law's illness, arrived on friday, the th. to him susan communicated the suspicious circumstances already mentioned, and he advised her to tell her master what she knew. accordingly, at seven o'clock the following morning (saturday, the th), susan entered her master's bedroom, and broke to him the fearful news that his illness was suspected to be due to poison, administered to him by his own daughter. so soon as he had recovered from the first shock of this terrible intelligence, the old attorney asked her where mary could have obtained the poison--he does not seem to have questioned the fact of its administration--and susan could suggest no other source than cranstoun. "oh, that villain!" cried the sick man, realising in a flash the horrid plot of which he was the victim, "that ever he came to my house! i remember he mentioned a particular poison that they had in their country." susan told him that mr. norton advised that miss blandy's papers be seized forthwith, but to this mr. blandy would not agree. "i never in all my life read a letter that came to my daughter," said the scrupulous old man; but he asked susan to secure any of the powder she could find. determined at once to satisfy himself of the truth, mr. blandy rose and went downstairs to breakfast. there was present at that meal, besides himself and mary, one robert littleton, his clerk, who had returned the night before from a holiday in warwickshire. the old man appeared to him "in great agony, and complained very much." mary handed her father his tea in his "particular dish." he tasted it, and, fixing his eyes upon her, remarked that it had a bad, gritty taste, and asked if she had put anything into it. the girl trembled and changed countenance, muttering that it was made as usual; to hide her confusion she hurried from the room. mr. blandy poured his tea into "the cat's basin" and sent for a fresh supply. after breakfast, mary asked littleton what had become of the tea, and, being told, seemed to him much upset by the occurrence. when the old man had finished his meal, he went into the kitchen to shave. while there he observed to his daughter, in presence of betty binfield, "i had like to have been poisoned once," referring to an occasion when he and two friends drank something hurtful at the coffee house. "one of these gentlemen died immediately, the other is dead now," said he; "i have survived them both, and it is my fortune to be poisoned at last," and, looking "very hard" at her, he turned away. miss blandy must have been blind indeed had she failed to see the significance of these incidents. anything but obtuse, she at once decided to take instant measures for her own protection. she went up to her room, and collecting cranstoun's correspondence and what remained of the fatal powder, she returned to the kitchen; standing before the fire on pretence of drying the superscription of a letter, she threw the whole bundle into the grate and "stirred it down with a stick." the cook at the moment, whether by chance or design, put on some coals, which preserved the papers from flaming up, and as soon as their mistress had left the kitchen, the maids, now thoroughly on the alert, took off the coal. the letters were consumed, but they drew out almost uninjured a folded paper packet, bearing in cranstoun's hand the suggestive words, "the powder to clean the pebbles with," and still containing a small quantity of white powder, which they delivered to mr. norton when he called later in the day. the apothecary found his patient worse, and stated his opinion to mary, who asked him to bring from reading the great dr. anthony addington (father of lord sidmouth). did she at the eleventh hour, pausing upon her dreadful path, seek yet to save her father's life, or was this merely a move to show her "innocence," as dr. pritchard, in similar circumstances, invited an eminent colleague to visit his dying victims? both in her _narrative_ and her _own account_ mary takes full credit for calling in dr. addington, but she is unable to allude to the episodes of the parlour and the kitchen. dr. addington arrived at midnight. from the condition of the patient, coupled with what he learned from him and mr. norton, the doctor had no doubt mr. blandy was suffering from the effects of poison. he at once informed the daughter, and inquired if her father had any enemies. "it is impossible!" she replied. "he is at peace with all the world and all the world is at peace with him." she added that her father had long suffered from colic and heartburn, to which his present indisposition was doubtless due. dr. addington remained in the sick-room until sunday morning (the th), when he left, promising to return next day. he took with him the sediment from the pan and the packet rescued from the fire, both of which were delivered to him by mr. norton. at this time neither physician nor apothecary knew the precise nature of the powder. before he quitted the house, dr. addington warned mary that if her father died she would inevitably be ruined. her position was now, one would think, sufficiently precarious; but the infatuated woman took a further fatal step. her "love" for her murderous little gallant moved her to warn him of their common danger. she wrote to him at lennel house, coldstream, and asked littleton, who had been in the habit of directing her letters to cranstoun, to seal, address, and post the missive as usual. but littleton, aware of the dark cloud of suspicion that had settled upon his master's daughter, opened it and read as follows:--"dear willy,--my father is so bad that i have only time to tell you that if you do not hear from me soon again, don't be frightened. i am better myself. lest any accident should happen to your letters, take care what you write. my sincere compliments. i am ever yours." littleton at once showed the letter to mr. norton, and afterwards read it to mr. blandy: "he said very little. he smiled and said, 'poor love-sick girl! what won't a girl do for a man she loves?'" there was then in the house mary's uncle, mr. blandy, of kingston, who had come to see his brother, and it was prudently decided, in view of all the circumstances, to refuse her access to the sick-room. but on the following morning (monday, the th) mr. blandy sent by susan gunnell a message to his daughter "that he was ready to forgive her if she would but endeavour to bring that villain to justice." in accordance with the dying man's request, mary was admitted to his room in presence of susan and mr. norton. unaware of the recovery of the powder and the interception of her letter, "she thanked god that she was much better, and said her mind was more at ease than it had been"; but, being informed of these damning discoveries, she fell on her knees by her father's bed and implored his forgiveness, vowing that she would never see or write to cranstoun again. "i forgive thee, my dear," said the old man, "and i hope god will forgive thee; but thou shouldst have considered better than to have attempted anything against thy father." to which she answered, "sir, as for your illness, i am entirely innocent." she admitted having put the powder into the gruel, "but," said she, "it was given me with another intent." her father, "turning himself in his bed," exclaimed, "oh, such a villain! to come to my house, eat and drink of the best my house could afford, and then to take away my life and ruin my daughter! oh, my dear, thou must hate that man, must hate the ground he treads on, thou canst not help it!" "sir," said mary, "your tenderness towards me is like a sword piercing my heart--much worse than if you were ever so angry. i must down on my knees and beg you will not curse me." "i curse thee, my daughter," he rejoined, "how canst thou think i could curse thee? nay, i bless thee, and hope god will bless thee also and amend thy life. do, my dear, go out of my room and say no more, lest thou shouldst say anything to thine own prejudice"; whereupon, says susan, who reports what passed, "she went directly out." thus mary and her father parted for the last time. it appears from this pathetic interview that the old man purposely treated her as cranstoun's innocent dupe, to shield her, if possible, from the consequences of her guilt, of which, in the circumstances, he could have entertained no doubt. [illustration: facsimile of the intercepted letter to cranstoun written by mary blandy (_from the original ms. in the public record office_.)] meanwhile dr. addington had applied to the mysterious powder the tests prescribed by the scientific knowledge of the time, which, if less delicate and reliable than the processes of reinsch and marsh--a red-hot poker was the principal agent--yielded results then deemed sufficiently conclusive. judged by these experiments, mrs. morgan's mystic philtre was composed of nothing more recondite than white arsenic. when dr. addington called on monday he found the patient much worse, and sent for dr. lewis, of oxford, as he "apprehended mr. blandy to be in the utmost danger, and that this affair might come before a court of judicature." he asked the dying man whether he himself knew if he had "taken poison often." mr. blandy said he believed he had, and in reply to the further question, whom he suspected to be the giver of the poison? "the tears stood in his eyes, yet he forced a smile, and said, 'a poor love-sick girl--i forgive her. i always thought there was mischief in those cursed scotch pebbles.'" dr. lewis came, and confirmed dr. addington's diagnosis; by their orders mary was that evening confined to her chamber, a guard was placed over her, and her keys, papers, "and all instruments wherewith she could hurt either herself or any other person" were taken from her. dr. addington graphically describes the scene when the guilty woman realised that all was lost. she protested that from the first she had been basely deceived by cranstoun, that she had never put powder in anything her father swallowed, excepting the gruel drunk by him on the monday and tuesday nights, that she believed it "would make him kind to him [cranstoun] and her," and that she did not know it to be poison "_till she had seen its effects_." she declined to assist in bringing her lover to justice--she considered him as her husband, "though the ceremony had not passed between them." in reply to further pertinent questions, e.g., whether she really pretended to believe in the childish business of the "love philtre"? why cranstoun described it, if innoxious, as "powder to clean the pebbles with"? why, in view of her father's grave condition, she failed sooner to call in medical aid? and why she had concealed from him (addington) what she knew to be the true cause of the illness? her answers were not such, says dr. addington, as gave him any satisfaction. she made, however, the highly damaging admission that, about six weeks before, she had put some of the powder into her father's tea, which susan gunnell drank and was ill for a week after. this was said in presence of betty binfield. thus, it will be observed, mary blandy, on her own showing knew, long before she operated upon, the gruel at all, the baneful effects of the powder. her statement that the motive for administering it was to make her father "kind" both to _herself_ and cranstoun should also be, in view of her subsequent defence, remembered. on tuesday, the th, the doctors found their patient delirious and "excessively weak." he grew worse throughout the day; but next morning he regained consciousness for an hour, and spoke of making his will in a day or two--a characteristic touch. he soon relapsed, however, and rapidly sinking, died at two o'clock in the afternoon of wednesday, th august, . so the end for which, trampling upon the common instincts of her kind and hardening her heart against the cry of nature, she had so persistently and horribly striven, was at last attained--with what contentment to "the fair parricide," in her guarded chamber, may be left to the speculation of the curious. the servants had access to their mistress's room. that afternoon miss blandy asked robert harman, the footman, to go away with her immediately--to france, says one account--and offered him £ if he would do so. he refused. at night, by her request, the cook, betty binfield, sat up with her. "betty, will you go away with me?" she cried, so soon as they were alone. "if you will go to the lion or the bell and hire a post-chaise, i will give you fifteen guineas when you get into it, and ten guineas more when we come to london!" "where will you go--into the north?" inquired the cautious cook; "shall you go by sea?" and learning that the proposed excursion would include a voyage, betty, being, as appears, a bad sailor, declined the offer. her mistress then "burst into laughter," and said she was only joking! in the _narrative_, written after her condemnation, mary boldly denies that these significant incidents occurred; in her more elaborate _account_ she makes no reference to the subject. those who saw her at this time testify to her extreme anxiety regarding her own situation, but say she showed no sign of sorrow, compassion, or remorse for her father's death. the person charged with the duty of warding mary in her chamber was edward herne, parish clerk of henley, who some twelve years before had been employed in mr. blandy's office, and had since remained on intimate terms with the family. it would appear, from an allusion in a contemporary tract, that herne was that "mr. h----" whose pretensions to the hand of the attorney's daughter had once been politely rejected. if so, probably he still preserved sufficient of his former feeling to sympathise with her position and wink at her escape. be the fact as it may, at ten o'clock next morning, thursday, th august, ned herne, as mary names him, leaving his fair charge unguarded, went off to dig a grave for his old master. so soon as the coast was clear, mary, with "nothing on but a half-sack and petticoat without a hoop," ran out of the house into the street and over henley bridge, in a last wild attempt to cheat her fate. her distraught air and strange array attracted instant notice. she was quickly recognised and surrounded by an angry crowd--for the circumstances of mr. blandy's death were now common knowledge, and the coroner's jury was to sit that day. alarmed by her hostile reception, she sought refuge at the sign of the angel, on the other side of the bridge, and mrs. davis, the landlady, shut the door upon the mob. there chanced then to be in the alehouse one mr. lane, who, with his wife, were interested spectators of these unwonted proceedings. miss blandy, having "called for a pint of wine and a toast," thus addressed the stranger--"sir, you look like a gentleman; what do you think they will do to me?" mr. lane told her that she would be committed to the county gaol for trial at the assizes, when, if her innocence appeared, she would be acquitted; if not, she would suffer accordingly. on receiving this cold comfort mary "stamped her foot upon the ground," and cried, "oh, that damned villain! but why should i blame him? i am more to blame than he, for i gave it him [her father] and knew the consequence." on cross-examination at a later stage, the witnesses were unable to swear whether the word she used was "knew" or "know." the distinction is obvious; but looking to the other evidence on the point, it is not of much importance. mr. alderman fisher, a friend of mr. blandy and one of the jury summoned upon the inquest, came to the angel and persuaded the fugitive to return. though the distance was inconsiderable, mr. fisher had to convey her in a "close" post-chaise "to preserve her from the resentment of the populace." welcomed home by the sergeant and mace-bearer sent by the corporation of henley to take her in charge, mary asked mr. fisher how it would go with her. he told her, "very hard," unless she could support her story by the production of cranstoun's letters. "dear mr. fisher," said she, "i am afraid i have burnt some that would have brought him to justice. my honour to him will prove my ruin." if the letters afforded sufficient proof of cranstoun's criminous intent, it hardly appears how the fact rhymes to mary's innocence. that day a post-mortem examination of mr. blandy's remains was made by dr. addington and others, and in the afternoon "at the house of john gale, richard miles, gent., mayor and coroner of the said town," opened his inquiry into the cause of death. an account of the proceedings at the inquest is printed in the appendix. the medical witnesses examined were drs. addington and lewis; mr. nicholson, surgeon in henley; and the apothecary, mr. norton, who severally spoke to the symptoms exhibited by the deceased during life, the appearances presented by his body, and the result of the analysis of the powder. they were of opinion that mr. blandy died of poison, and that the powder was a poison capable of causing his death. the maids, gunnell and binfield, harman the footman, and mary's old flame, ned herne, were the other witnesses whose depositions were taken. having heard the evidence, the jury found that francis blandy was poisoned, and that mary blandy "did poison and murder" him; and on friday, th august, the mayor and coroner issued to the constables his warrant to convey the prisoner to the county gaol of oxford, there to be detained until discharged by due course of law. that night mr. blandy's body was buried in the parish church at henley. none of his relatives were present, norton, his apothecary; littleton, his clerk; and harman, his footman, being the only mourners. miss blandy was not removed to oxford castle till the following day, to enable her to make the arrangements necessary for a lengthy visit. by her request, one mrs. dean, a former servant of the family, accompanied her as her maid. her tea caddy--"the cannisters were all most full of fine hyson"--was not forgotten. at four o'clock on saturday morning the ladies, attended by two constables, set out "very privately" in a landau and four, and, eluding the attention of the mob, reached oxford about eleven. mary's first question on arriving at the gaol was, "am i to be fettered?" and, learning that she would not be put in irons so long as she behaved well, she remarked, "i have wore them all this morning in my mind in the coach." at first, we are told, "her imprisonment was indeed rather like a retirement from the world than the confinement of a criminal." she had her maid to attend her, the best, apartments in the keeper's house were placed at her disposal, she drank tea--her favourite hyson--twice a day, walked at her pleasure in the keeper's garden, and of an evening enjoyed her game of cards. her privacy was strictly respected; no one was allowed to "see her without her consent," though very extraordinary sums were daily offered for that purpose. what treatment more considerate could a sensitive gentlewoman desire? but the rude breath of the outer world was not so easily excluded. one day the interesting prisoner learned from a visitor the startling news that her father's fortune, of which, as he had left no will, she was sole heiress, had been found to amount to less than four thousand pounds! with what feelings would she recall the old attorney's boastful references to her £ , dower, the fame of which had first attracted her "lover," cranstoun, and so led to results already sufficiently regrettable, the end of which she shuddered to foresee. how passionately the fierce woman must have cursed the irony of her fate! but to this mental torment were soon to be added physical discomfort and indignity. a rumour reached the authorities in london that a scheme was afoot to effect her rescue. on friday, th october, the secretary of state having instructed the sheriff of the county "to take more particular care of her," the felon's fetters she had before feared were riveted upon her slender ankles; and there was an end to the daily walks amid the pleasant alleys of the keeper's garden. this broad hint as to her real position induced a different state of mind. the chapel services, hitherto somewhat neglected, were substituted for the mundane pastimes of tea-drinkings and cards, and the prison chaplain, the rev. john swinton, became her only visitor. to the pious attentions of that gentleman she may now be left while we see what happened beyond the narrow circuit of her cell. we are enabled to throw some fresh light upon the doings of the powers in whose high hands lay the prisoner's life from certain correspondence, hitherto unpublished, relating to her case. these documents, here printed for the first time from the original mss. in the british museum and public record office, will be found in the appendix. on th september, , lord chancellor hardwicke wrote to the duke of newcastle, secretary of state, advising that, if upon the examinations there appeared to be sufficient grounds to proceed against mary blandy for her father's murder, the prosecution should be carried on at the expense of the crown, an unusual but not unprecedented practice; and that mr. sharpe, solicitor to the treasury, be ordered to take the necessary steps, under direction of the attorney-general; otherwise it would be a reproach to the king's justice should so flagrant a crime escape punishment, as might, if the prosecution were left in the hands of the prisoner's own relatives, occur. as it was thought that susan gunnell and the old charwoman, ann emmet, material witnesses, "could not long survive the effects of the poison they partook of," and might "dye" before the trial, which in ordinary course would not be held until the lent assizes, his lordship suggested that a special commission be sent into berkshire to find a bill of indictment there, so that the trial could be had at the king's bench bar within the next term. it appears from the correspondence that one richard lowe, the mayor of henley's messenger, had, shortly after miss blandy's committal, been despatched to scotland with the view of apprehending the hon. william henry cranstoun as accessory to the murder. from the address on mary's intercepted letter, cranstoun was believed to be in berwick, and lowe applied to mr. carre, the sheriff-depute of berwickshire, who seems to have made some difficulty in granting a warrant in terms of the application, though ultimately he did so. by that time, however, the bird had flown; and lowe and carre each blamed the other for the failure to effect the fugitive's arrest. his lordship accordingly recommended that the lord justice-clerk of scotland be requested to hold an inquiry into the facts. lord hardwicke, in a private letter to the duke of the same date, commented on the "extraordinary method" taken to apprehend cranstoun, pointing out that a messenger ought to have been sent with the secretary of state's warrant, "which runs equally over the whole kingdom"; _that_ might have been executed with secrecy, whereas by the course adopted "so many persons must be apprized of it, that he could hardly fail of getting notice." on receipt of these letters, newcastle wrote to sir dudley ryder, the attorney-general, that his majesty would be pleased to give orders for the prosecution of mary blandy, and instructing him to take the requisite steps for that purpose. the result of the justice-clerk's inquiry, as appears from the further correspondence, was completely to exonerate mr. carre from the charges of negligence and delay made against him by the mayor's messenger. on th october the chancellor wrote to the secretary regarding a petition by the "noblemen and gentlemen in the neighbourhood of henley-upon-thames, and the mayor and principal magistrates of that town, to the duke of newcastle," thanking his grace for king george's "paternal goodness" in directing that the prisoner should be prosecuted at "his majesty's expence," stating that no endeavour would be wanting on their part to render that prosecution successful, and praying that, in order to bring to justice "the wicked contriver and instigator of this villainous scheme," his majesty might be pleased to offer by proclamation a reward for cranstoun's apprehension. the signatories included the mayor and rector of henley, divers county magnates, and also the local magistrates, lords macclesfield and cadogan, whose "indefatigable diligence" in getting up the crown case was specially commended by bathurst at the trial. by lord hardwicke's instructions the duke submitted the petition to the attorney-general, with the query, whether it would be advisable to issue such a proclamation? and sir dudley ryder, while of opinion that the matter was one "of mere discretion in his majesty" and generally approving the measure, thought it probable that the person in question might even then "be gone beyond sea." mr. attorney's conjecture was, as we shall find, correct. there is an interesting letter from one mr. wise to mr. sharpe, solicitor to the treasury, giving us a glimpse of miss blandy in prison. the writer describes a visit paid by him to oxford castle and the condition in which he found her, tells how he impressed upon the keeper and mrs. dean the dire results to themselves of allowing her to escape, and mentions the annoyance of parson swinton, "a great favourite of miss blandy's," at the "freedom" taken with his name by some anonymous scribbler. this was not the first time that reverend gentleman had to complain of the "liberty" of the press, as we learn from certain curious pamphlets of , from which it would seem that his reputation had no very sweet savour in contemporary nostrils. mr. sharpe, writing to mr. wise on th december, alludes to a threatening letter sent to betty binfield, purporting to be written by cranstoun, from which it was inferred that the fugitive was lying concealed "either here in london or in the north." a similar "menacing letter" signed w.h.c. had been received by dr. lewis on rd november, which, like the other, was probably a hoax. cranstoun, being then safe in france, would not so commit himself. the last document of the series, "the examination of francis gropptty," dated rd february, , tells for the first time the story of the fugitive's escape. this was the man employed by the cranstoun family to get their disreputable relative quietly out of england. the delicate negotiation was conducted by the rev. mr. home, brother of lord home, and a certain captain alexander hamilton. it was represented to gropptty, who had "lived with lord home several years" and then "did business for him," that such a service would "very much, oblige lord cranstoun, lord home, and all the family," and that, as there were no orders to stop cranstoun at dover, by complying with their request he, personally, ran no risk; accordingly he consented to see the interesting exile as far as calais. on nd september captain hamilton produced cranstoun at gropptty's house in mount street. our old acquaintance characteristically explained that he was without funds for the journey, having been "rob'd" of his money and portmanteau on his way to town. gropptty was induced to purchase for the traveller "such, necessaries as he wanted," and captain hamilton went to solicit from lord ancrum a loan of twenty pounds for expenses. his lordship having unaccountably refused the advance, the guileless gropptty agreed to lend ten guineas upon captain hamilton's note of hand, which, as he in his examination complained, was still "unsatisfied." he and cranstoun then set out in a post-chaise for dover, where they arrived next morning at nine o'clock. on th september they embarked in the packet for calais, paying a guinea for their passage; and gropptty, having seen his charge safely bestowed in lodgings "at the rate of fifty livres a month," returned to london. informed of the successful issue of the adventure, the rev. mr. home evinced a holy joy, and, in the name of his noble kinsman and of lord cranstoun, promised gropptty a handsome reward for his trouble. that gentleman, however, said he had acted solely out of gratitude to lord home, and wanted nothing but his outlays; so he made out an "acct. of the expences he had been at," amounting, with the sum advanced by him, to eighteen pounds, for which captain hamilton obligingly gave him a bill upon my lord cranstoun. by a singular coincidence this document of debt also remained "unsatisfied"; his lordship, after keeping it for six weeks, "returned it unpaid, and the examt. has not yet recd. the money"! thus, in common with all who had any dealings with the hon. william henry cranstoun, gropptty in the end got the worse of the bargain. while her gallant accomplice, having successfully stolen a march upon the hangman, was breathing the free air of the french seaport, miss blandy, in her cell in oxford castle, was preparing for her trial. she had at first entrusted her defence to one mr. newell, an attorney of henley, who had succeeded her late father in the office of town-clerk; but the lawyer, at one of their consultations, untactfully expressing astonishment that she should have got herself into trouble over such "a mean-looking little ugly fellow" as cranstoun, his client took umbrage at this observation as reflecting upon her taste in lovers, dispensed with his further services, and employed in his stead one mr. rivers of woodstock. from the day of her arrest all sorts of rumours had been rife regarding so sensational a case. she had poisoned her mother; she had poisoned her friend mrs. pocock--how and when that lady in fact died we do not know; she was still in correspondence with cranstoun; she was secretly married to the keeper's son, a step to which the circumstances of their acquaintance left her no alternative; her fortune was being employed to bribe the authorities; the principal witnesses against her had been got out of the way; she had (repeatedly and in divers ways) escaped; finally, as she herself, with reference to these reports, complained--"it has been said that i am a wretched drunkard, a prophane swearer, that i never went to chapel, contemned all holy ordinances, and in short gave myself up to all kinds of immorality." the depositions of the witnesses before the coroner were published "by some of the friends and relations of the family, in order to prevent the publick from being any longer imposed on with fictitious stories," but both miss blandy and mr. ford, her counsel, took great exception to this at the trial. pamphlets, as we shall presently see, poured from the press, and even before she appeared at the bar the first instalments of a formidable library of _blandyana_, had come into being. on monday, nd march, , the grand jury for the county of oxford found a true bill against mary blandy. the town hall, where the assizes were usually held, was "then rebuilding," and as the university authorities had refused the use of the sheldonian theatre, the trial was appointed to take place next morning in the beautiful hall of the divinity school. owing to the insertion overnight--by a mischievous undergraduate or other sympathiser with the day's heroine--of some obstacle in the keyhole, the door could not be opened, and the lock had to be forced, which delayed the proceedings for an hour. the judges meanwhile returned to their lodgings. this initial difficulty surmounted, at eight o'clock on tuesday, rd march, mary blandy was placed at the bar to answer the grave charges made against her. there appeared for the crown the hon. mr. bathurst and mr. serjeant hayward, assisted by the hon. mr. barrington and messrs. hayes, nares, and ambler. the prisoner was defended by mr. ford, with whom were messrs. morton and aston. the judges were the hon. heneage legge and sir sidney stafford smythe, two of the barons of his majesty's court of exchequer. as the following pages contain a verbatim reprint of the official report of the trial, published by permission of the judges, it is only necessary here briefly to refer to the proceedings. the trial lasted thirteen hours. it is, says mr. ainsworth mitchell, in his _science and the criminal_, "remarkable as being the first one of which there is any detailed record, in which convincing scientific proof of poisoning was given." the indictment charged the prisoner with the wilful murder of francis blandy by administering to him white arsenic at divers times ( ) between th november, , and th august, , in tea, and ( ) between th and th august, , in water gruel. the prisoner pleaded not guilty, a jury was duly sworn, and the indictment having been opened by mr. barrington, bathurst began his address for the crown. though promoted later to the highest judicial office, he has been described as "the least efficient lord chancellor of the eighteenth century." lord campbell, in his _lives of the chancellors_, says that bathurst's address was much praised for its eloquence, and "as it certainly contains proof of good feeling, if not of high talent and refined taste," his lordship transcribes for the benefit of his readers certain of its purpler passages. it was deemed worthy, at the time, of publication in separate form, with highly eulogistic notes, wherein we read that by its eloquent appeal both judges and counsel "were moved to mourn, nay, to weep like tenderest infants." the prisoner, however, heard it dry-eyed, nor will its effect be more melting for the modern reader. at the outset the learned counsel observed, with reference to the heinous nature of the crime, that he was not surprised "at this vast concourse of people collected together," from which it appears there were few vacant seats that morning in the divinity school. space will not permit us to accompany the future lord chancellor through his "most affecting oration," which presents the case for the crown with moderation and fairness, and concludes with a tribute to the "indefatigable diligence" of the earl of macclesfield and lord cadogan "in inquiring into this hidden work of darkness." he was followed by serjeant hayward, who, employing a more rhetorical and florid style, was probably better appreciated by the audience, but added little to the jury's knowledge of the facts. in an "improving" passage he besought "the young gentlemen of this university," who seem to have been well represented, to guard against the first insidious approaches of vice. "see here," said he, "the dreadful consequences of disobedience to a parent." we need not examine in detail the evidence led for the prosecution; from the foregoing narrative the reader already knows its main outlines and may study it at large in the following report. the crown case opened with the medical witnesses, drs. addington and lewis, and mr. norton, who clearly established the fact that arsenic was the cause of mr. blandy's death, that arsenic was present in the remains of his gruel, and that arsenic was the powder which the prisoner had attempted to destroy. the appearance of mrs. mounteney in the witness-box occasioned the only display of feeling exhibited by the accused throughout the whole trial. this lady was her godmother, and as she left the court after giving her evidence, she clasped her god-child by the hand, exclaiming "god bless you!" for the moment mary's brilliant black eyes filled with tears, but after drinking a glass of wine and water, she resumed her air of stoical indifference. susan gunnell, "wore down to a skelliton" by the effects of her curiosity, but sufficiently recovered to come into court, was the principal witness for the prosecution. in addition to the material facts which we have before narrated, susan deposed that the prisoner often spoke of her father as "an old villain," and wished for his death, and had complained that she was "very awkward," for, if he were dead, "she would go to scotland and live with lady cranstoun." susan gave her evidence with perfect fairness, and showed no animus against her former mistress. equal in importance was the testimony of betty binfield, which, perhaps, is more open to miss blandy's objection as being "inspired with vindictive sentiments." when communicating to the maids mrs. morgan's prophecy regarding the duration of their master's life, the prisoner, said witness, expressed herself glad, "for that then she would soon be released from all her fatigues, and be happy." she was wont to curse her father, calling him "rascal and villain," and on one occasion had remarked, "who would grudge to send an old father to hell for £ , ?" "exactly them words," added the scrupulous cook, though in this instance her zeal had probably got the better of her memory. in cross-examination betty was asked whether she had any ill-will against her mistress. "i always told her i wished her very well," was the diplomatic reply. "did you," continued the prisoner's counsel, "ever say, 'damn her for a black bitch! i should be glad to see her go up the ladder and be hanged'"? but betty indignantly denied the utterance of any such ungenteel expressions. the account given by this witness of the admissions made by her mistress to dr. addington in her presence led to the recall of that gentleman, who, in his former evidence, had not referred to the matter. the prisoner's counsel invited dr. addington to say that miss blandy's anxiety proceeded solely from concern for her father; the doctor excused himself from expressing any opinion, but, being indiscreetly pressed to do so, said that her agitation struck him as due entirely to fears for herself: he saw no tokens of grief for her father. on re-examination, it appeared that the doctor had attended professionally both susan gunnell and ann emmet; their symptoms, in his opinion, were those of arsenical poisoning. alice emmet was next called to speak to her mother's illness, the old charwoman herself being in no condition to come to court. littleton, old blandy's clerk, gave his evidence with manifest regret, but had to admit that he frequently heard miss blandy curse her parent by the unfilial names of rogue, villain, and "toothless old dog." harman, the footman, to whom mary had offered the £ bribe, and mr. fisher and mr. and mrs. lane, who spoke to the incidents at the angel inn on the day of her attempted flight, were the other witnesses examined; the intercepted letter to cranstoun was put in, and the crown case closed. according to the practice of the time, the prisoner's counsel, while allowed to examine their own, and cross-examine the prosecutor's witnesses, were not permitted to address the jury. mary blandy therefore now rose to make the speech in her own defence. probably prepared for her beforehand, it merely enumerates the various injustices and misrepresentations of which she considered herself the victim. she made little attempt to refute the damning evidence against her, and concluded by protesting her innocence of her father's death; that she thought the powder "an inoffensive thing," and gave it to procure his love. in this she was well advised, for she was shrewd enough to see that upon the question of her knowledge of the quality and effect of the powder the verdict would turn. [illustration: miss blandy (_from a mezzotint by t. ryley after l. wilson, in the collection of mr. a.m. broadley_.)] eight witnesses were called for the defence. ann james, who washed for the family, stated that before mr. blandy's illness there was "a difference between elizabeth binfield and miss blandy, and binfield was to go away." after mary's removal to oxford gaol (saturday, th august), the witness heard betty one day in the kitchen make use of the unparliamentary language already quoted. mary banks deposed that she was present at the time, and heard the words spoken. "it was the night mr. blandy was opened" (thursday, th august); she was sure of that; miss blandy was then in the house. betty binfield, recalled and confronted with this evidence, persisted in her denial, but admitted the existence of "a little quarrel" with her mistress. edward herne, mary's old admirer, gave her a high character as an affectionate, dutiful daughter. he was in the house as often as four times a week and never heard her swear an oath or speak a disrespectful word of her father. in cross-examination the witness admitted that in august, , miss blandy told him that cranstoun had put powder in her father's tea. he had visited her in prison, and on one occasion, a report having reached her that "the captain was taken," she wrung her hands and said, "i hope in god it is true, that he may be brought to justice as well as i, and that he may suffer the punishment due to his crime, as i shall do for mine." here for the first time the prisoner intervened. her questions were directed to bring out that she had told herne on the occasion mentioned that no "damage" resulted upon cranstoun's use of the powder, from which fact she inferred its effects harmless, and that the "suffering" spoken of by her had reference to her imprisonment, though guiltless. for the rest, thomas cawley and thomas staverton, friends of mr. blandy for upwards of twenty years, spoke to the happy relations which to their knowledge subsisted between father and daughter. on her last visit to staverton's house, mary had remarked that, although her father "had many wives laid out for him," he would not marry till she was "settled." mrs. davis, the landlady of the angel, and robert stoke, the officer who took the prisoner into custody, said that miss blandy did not then appear to them to be attempting night. this concluded the exculpatory evidence. for the defence, mr. ford protested against the "unjustifiable and illegal methods" used to prejudice his client, such as the publication of the proceedings at the inquest, and, particularly, the "very scandalous reports" concerning her, circulated since her commitment, to refute which he proposed to call "the reverend gentleman who had attended her," parson swinton. the court, however, held that there was no need to do so, as the jury would entirely disregard anything not deposed to in court. mr. bathurst replying for the crown, maintained that it was proved to demonstration that francis blandy died of poison, put in his gruel upon the th of august by the prisoner's hand, as appeared not only from her own confession, but from all the evidence adduced. "examine then, gentlemen," said the learned counsel, "whether it is possible she could do it ignorantly." in view of the great affection with which it was proved the dying man behaved to her, the prisoner's assertion that she gave him the powder "to make him love her" was incredible. she knew what effects the poisoned gruel produced upon him on the monday and tuesday, yet she would have given him more of it on the wednesday. having pointed out that, when she must have known the nature of the powder, she endeavoured to destroy it, instead of telling the physicians what she had given her father, which might have been the means of saving his life, counsel commented on the terms of the intercepted letter to cranstoun as wholly inconsistent with her innocence. further, he remarked on the contradiction as to dates in the evidence of the witnesses who reported betty binfield's forcible phrase, which, he contended, was in fact never uttered by her. finally, he endorsed the censure of the prisoner's counsel upon the spreaders of the scandalous reports, which he asked the jury totally to disregard. on the conclusion of bathurst's reply, the prisoner made the following statement:--"it is said i gave it [the powder] my father to make him fond of me: there was no occasion for that--but to make him fond of cranstoun." mr. baron legge then proceeded to charge the jury. the manner in which his lordship reviewed the evidence and his exposition of its import and effect, indeed his whole conduct of the trial, have been well described as affording a favourable impression of his ability, impartiality, and humanity. he proceeded in the good old fashion, going carefully over the whole ground of the evidence, of which his notes appear to have been excellent; and after some general remarks upon the atrocity of the crime charged, and the nature and weight of circumstantial evidence--"more convincing and satisfactory than any other kind of evidence, because facts cannot lie"--observed that it was undeniable that mr. blandy died by poison administered to him by the prisoner at the bar: "what you are to try is reduced to this single question, whether the prisoner, at the time she gave it to her father, knew that it was poison, and what effect it would have?" if they believed that she did know, they must find her guilty; if, in view of her general character, the evidence led for the defence, and what she herself had said, they were not satisfied that she knew, then they would acquit her. the jury, without retiring, consulted for five minutes and returned a verdict of guilty. mr. baron legge, having in dignified and moving terms exhorted the unhappy woman to repentance, then pronounced the inevitable sentence of the law--"that you are to be carried to the place of execution and there hanged by the neck until you are dead; and may god, of his infinite mercy, receive your soul." it was nine o'clock at night; for thirteen mortal hours mary blandy had watched unflinchingly the "interesting game played by counsel with her life for stakes"; the "game" was over, and hers was the losing side; yet no sign of fear or agitation was manifested by that strange woman as she rose for the last time to address her judge. "my lord," said she, "as your lordship has been so good to show so much candour and impartiality in the course of my trial, i have one favour more to beg; which is, that your lordship would please to allow me a little time till i can settle my affairs and make my peace with god"; to which mr. baron legge feelingly replied, "to be sure, you shall have a proper time allowed you." so, amid the tense stillness of the crowded "house," the curtain fell upon the great fourth act of the tragedy of "the fair parricide." on leaving the hall to be taken back to prison, mary blandy, we read, "stepped into the coach with as little concern as if she had been going to a ball"--the eighteenth century reporter anticipating by a hundred years his journalistic successor's phrase as to the demeanour of madeleine smith in similar trying circumstances. the result of the trial had preceded her to oxford castle, where she found the keeper's family "in some disorder, the children being all in tears" at the fatal news. "don't mind it," said their indomitable guest, "what does it signify? i am very hungry; pray, let me have something for supper as speedily as possible"; and our reporter proceeds to spoil his admirable picture by condescending upon "mutton chops and an apple pye." the six weeks allowed her to prepare for death were all too short for the correspondence and literary labours in which she presently became involved. on th march "a reverend divine of henley-upon-thames," probably, from other evidence, the rev. william stockwood, rector of the parish, addressed to her a letter, exhorting her to confession and repentance. to this miss blandy replied on the th, maintaining that she had acted innocently. "there is an account," she tells him, "as well as i was able to write, which i sent to my uncle in london, that i here send you." copies of these letters, and of the narrative referred to, are printed in the appendix. she sends her "tenderest wishes" to her god-mother, mrs. mounteney, and trusts that she will be able to "serve" her with the bishop of winchester, apparently in the matter of a reprieve, of which mary is said to have had good hope, by reason that she had once the honour of dancing with the late prince of wales--"fred, who was alive and is dead." "pray comfort poor ned herne," she writes, "and tell him i have the same friendship for him as ever." she asks that her letter and its enclosure be returned, as, being in her own handwriting, they may be of service to her character after her death. the object of this request was speedily apparent; on th march the whole documents were published under the title of _a letter from a clergyman, to miss mary blandy, &c._, with a note by the publisher intimating that, for the satisfaction of the public, the original ms. was left with him. the fair authoress having thus fired the first shot, a fusilade of pamphlets began--the spent bullets are collected in the bibliography--which, for volume and verbosity, is entitled to honourable mention in the annals of tractarian strife. _an answer to miss blandy's narrative_ quickly followed upon the other side, in which, it is claimed, "all the arguments she has advanc'd in justification of her innocence are fully refuted, and her guilt clearly and undeniably prov'd." this was promptly met by _the case of miss blandy considered, as a daughter, as a gentlewoman, and as a christian_, with particular reference to her own _narrative_, the author of which is better versed in classical analogies than in the facts of the case. mary herself mentions a pamphlet, which she cites as _the life of miss mary blandy_, and attributes to "a french usher." this may have been one of the tracts containing accounts "of that most horrid parricide," the title of which she deemed too indelicate for exact citation, or, perhaps, an earlier edition of _a genuine and impartial account of the life of miss mary blandy_, &c., the copy of which in the editor's possession, including an account of the execution, was published on th april, three days after the completion of that ceremony. the last literary effort of mary blandy was an expansion of her _narrative_, re-written in more detail and at much greater length, the revised version appearing on th april under the title of _miss mary blandy's own account of the affair between her and mr. cranstoun_, "from the commencement of their acquaintance in the year to the death of her father in august, , with all the circumstances leading to that unhappy event." this ingenious, rather than ingenuous, compilation was, it is said, prepared with the assistance of parson swinton, who had some previous experience of pamphleteering on his own account in . mr. horace bleackley has happily described it as "the most famous apologia in criminal literature," and as such it is reprinted in the present volume. even this _tour de force_ failed to convince a sceptical world, and on th april was published _a candid appeal to the publick_ concerning her case, by "a gentleman of oxford," wherein "all the ridiculous and false assertions" contained in miss blandy's _own account_ "are exploded, and the whole of that mysterious affair set in a true light." but by this time the fair disputant was beyond the reach of controversy, and the oxford gentleman had it all his own way; though the pamphleteers kept the discussion alive a year longer than its subject. an instructive feature of mary's literary activities during her last days is her correspondence with elizabeth jeffries. "that unsavoury person" was, with her paramour, john swan, convicted at chelmsford assizes on th march, , of the murder at walthamstow, on rd july, of one joseph jeffries, respectively uncle and master to his slayers. elizabeth induced john to kill the old gentleman, who, aware of their intrigue, had threatened, as the crown counsel neatly phrased it, "to alter his will, if she did not alter her conduct." this unpleasant case, as was, perhaps, in the circumstances, natural, attracted the attention of miss blandy. she read with much interest the report of the trial. "it is barbarous," was her comment--for, in truth, the murder was a sordid business, and sadly lacking in "style"--"but i am sorry for her, and hope she will have a good divine to attend her in her last moments, if possible a second swinton, for, poor unhappy girl, i pity her." these sentiments shocked a lady visitor then present, who, expressing the opinion that all such inhuman wretches should suffer as they deserved, withdrew in dudgeon. mary smilingly remarked, "i can't bear with these over-virtuous women. i believe if ever the devil picks a bone, it is one of theirs!" but the murderess of walthamstow had somehow struck her fancy, and she wrote to her fellow-convict to express her sympathy. that young lady suitably replied, and the ensuing correspondence ( th january- th march, ), published under the title of _genuine letters between miss blandy and miss jeffries_, if we may believe the description, is highly remarkable. at first elizabeth asserted her innocence as stoutly as did mary herself, but afterwards she acknowledged her guilt. whereupon mary, more in sorrow than in anger, wrote to her on th march for the last time. "your deceiving of me was a small crime; it was deceiving yourself: for no retreat, tho' ever so pleasant, no diversions, no company, no, not heaven itself, could have made you happy with those crimes unrepented of in your breast." so, with the promise to be "a suitor for her at the throne of mercy," miss blandy intimated that the correspondence must close; and on the th miss jeffries duly paid the penalty of her crime. in _a book of scoundrels_, that improving and delightful work, mr. charles whibley has, well observed: "a stern test of artistry is the gallows. perfect behaviour at an enforced and public scrutiny may properly be esteemed an effect of talent--an effect which has not too often been rehearsed." this high standard, the hall-mark of the artist in crime, mary blandy admittedly attained. the execution, originally fixed for saturday, th april, was postponed until monday, the th, by request of the university authorities, who represented that to conduct such a ceremony during holy week "would be improper and unprecedented." the night before her end the doomed woman asked to see the scene of the morrow's tragedy, and looked out from one of the upper windows upon the gibbet, "opposite the door of the gaol, and made by laying a poll across upon the arms of two trees"--in her case "the fatal tree" had a new and very real significance; then she turned away, remarking only that it was "very high." at nine o'clock on monday morning, attended by parson swinton, and "dress'd in a black crape sack, with her arms and hands ty'd with black paduasoy ribbons," mary blandy was led out to her death. about the two trees with, their ominous "poll" a crowd of silent spectators was assembled on the castle green, to whom, in accordance with the etiquette of the day, she made her "dying declaration"--to wit, that she was guiltless of her father's blood, though the innocent cause of his death, and that she did not "in the least contribute" to that of her mother or of mrs. pocock. this she swore upon her salvation; which only shows, says lord campbell, who was convinced of her guilt, "the worthlessness of the dying declarations of criminals, and the absurdity of the practice of trying to induce them to confess." we shall not dwell upon the shocking spectacle--the curious will find a contemporary account in the appendix--but one characteristic detail may be mentioned. as she was climbing the fatal ladder, covered, for the occasion, with black cloth, she stopped, and addressing the celebrants of that grim ritual, "gentlemen," said she, "do not hang me high, for the sake of decency." mary blandy was but just in time to make so "genteel" an end. that very year ( ), owing to the alarming increase of murders, an act was passed ( geo. ii. c. ) "for better preventing the horrid crime of murder," whereby persons condemned therefor should be executed on the next day but one after sentence, and their bodies be given to the surgeons' company at their hall with a view to dissection, and also, in the discretion of the judge, be hanged in chains. the first person to benefit by the provisions of the new act did so on st july. but although mary blandy's body escaped these legal indignities, as neither coffin nor hearse had been prepared for its reception, it was carried through the crowd on the shoulders of one of the sheriff's men, and deposited for some hours in his house. there suitable arrangements were made, and at one o'clock in the morning of tuesday, th april, , the body, by her own request, was buried in the chancel of henley parish church, between those of her father and mother, when, notwithstanding the untimely hour, "there was assembled the greatest concourse of people ever known upon such an occasion." henley church has been "restored" since mary's day, and there is now no indication of the grave, which, as the present rector courteously informs the editor, is believed to be beneath the organ, in the north choir aisle. _apropos_ to mary blandy's death, "elia" has a quaint anecdote of samuel salt, one of the "old benchers of the inner temple." this gentleman, notable for his maladroit remarks, was bidden to dine with a relative of hers (doubtless mr. serjeant stevens) on the day of the execution--not, one would think, a suitable occasion for festivity. salt was warned beforehand by his valet to avoid all allusion to the subject, and promised to be specially careful. during the pause preliminary to the announcing of dinner, however, "he got up, looked out of window, and pulling down his ruffles--an ordinary motion with him--observed, 'it was a gloomy day,' and added, 'i suppose miss blandy must be hanged by this time.'" the reader may care to know what became of cranstoun. that "unspeakable scot," it has regretfully to be recorded, was never made amenable to earthly justice. he was, indeed, the subject of at least four biographies, but human retribution followed him no further. extracts from one of these "lives" are, for what they are worth, printed in the appendix, together with his posthumous _account of the poisoning of the late mr. francis blandy_, a counterblast to mary's masterpiece. this tract includes the text of three letters, alleged to have been written by her to her lover, and dated respectively th june, th july, and st august, ; but as, after his death, all his papers were, by order of lord cranstoun, sealed up and sent to his lordship in scotland, who, in the circumstances, was little likely to part with them, it does not appear how these particular manuscripts came into the "editor's" possession. but, in that age of literary marvels, nothing need surprise us: a publisher actually issued as genuine the _original letters to and from miss blandy and c---- c----_, though the fact that cranstoun's half of the correspondence had been destroyed by mary blandy was then a matter of common knowledge. in all these pamphlets, cranstoun, while admitting his complicity in her crime, with, characteristic gallantry casts most of the blame upon his dead mistress. for the rest, he seems to have passed the brief remainder of his days in cheating as many of his fellow-sinners as, in the short time at his disposal, could reasonably be expected. a hitherto unpublished letter from henry fox at the war office, to mr. pitt, then paymaster general, dated th march, , is, by kind permission of mr. a.m. broadley, printed in the appendix. after referring to mary's conviction, the writer intimates that cranstoun, "a reduc'd first lieut. of sir andrew agnew's late regt. of marines, now on the british establishment of half-pay, was charged with contriving the manner of sd. miss blandy's poisoning her father and being an abettor therein; and he having absconded from the time of her being comitted for the above fact, i am commanded to signify to you it is his majesty's pleasure that the sd. lieutenant wm. henry cranstoune be struck off the sd. establishment of half-pay, and that you do not issue any moneys remaining in your hands due to the sd. lieut. cranstoune." this shows the view taken by the government of the part played by cranstoun in the tragedy of henley. there will also be found in the appendix an extract from, a letter from dunkirk, published in the _london magazine_ for february, , containing what appears to be a reliable account of the last days of mary blandy's lover; the particulars given are in general agreement with those contained in the various "lives" above mentioned. obliged to fly from france, where he had been harboured by one mrs. ross, his kinswoman, whose maiden name of dunbar he had prudently assumed, he sought refuge in flanders. furnes, "a town belonging to the queen of hungary," had the dubious distinction of being selected by him as an asylum. there, on nd december, , "at the sign of the burgundy cross," after a short illness, accompanied, it is satisfactory to note, with "great agonies," the hon. william henry cranstoun finally ceased from troubling in the thirty-ninth year of his age. his personal belongings, "consisting chiefly of laced and embroidered waistcoats," were sold to pay his debts. on his deathbed he was received into the roman catholic church. the occasion of so notable a conversion was fittingly marked by the magnificence of his obsequies. "he was buried," we read, "in great solemnity, the corporation attending the funeral; and a grand mass was said over the corpse in the cathedral church, which, was finely illuminated." the impressive ceremonial would have gratified vainglorious mr. blandy had circumstances permitted his presence. some account of the descendants of cranstoun is given in a letter by john riddell, the scots genealogist, hitherto unpublished, which is printed in the appendix. george cranstoun, lord corehouse, cranstoun's nephew, was afterwards an eminent scottish judge. a word as to the guilt of mary blandy and her accomplice, which, in the opinion of some writers, is not beyond dispute. the question of motive in such cases is generally a puzzling one, and in the commission of many murders the end to be gained, always inadequate, often remains obscure. barely does the motive--unlike the punishment which it was the sublime object of mr. gilbert's "mikado" equitably to adjust--"fit the crime." mary was well aware that she could not be cranstoun's lawful wife, but hers was not a nature to shrink from the less regular union. her passion for him was irresistible; she had ample proof of his chronic infidelity, but, in her blind infatuation, such "spots" upon the sun of her affection, were disregarded. she knew that, but for the £ , bait, her crafty lover would surely play her false; her father was sick of the whole affair, and if she went off with the captain, would doubtless disinherit her. as for that "honourable" gentleman himself, the inducement to get possession of her £ , , the beginning and end of his connection with the blandys, sufficiently explains his purpose. was not the spirit of his family motto, "thou shalt want ere i want," ever his guiding light and principle, and would such a man so circumstanced hesitate to resort to a crime which he could induce another to commit and, if necessary, suffer for, while he himself reaped the benefit in safety? had he succeeded in securing both his mistress and her fortune, mary's last state would, not improbably, have been worse than her first. so much for the "motive," which presents little difficulty. then, with regard to the question whether, on the assumption of his guilt, mary blandy was the intelligent agent of cranstoun or his innocent dupe, no one who has studied the evidence against her can entertain a reasonable doubt. apart from the threatening and abusive language which she applied to her father, her whole attitude towards his last illness shows how false were her subsequent professions of affection. she herself has disposed of the suggestion that she really believed in the love-compelling properties of the magic powder, though such a belief was not inconceivable, as appears from the contemporary advertisement of a "love philtre," of which a copy is printed in the appendix. she told her dying father that if he were injured by the powder, she was not to blame, as "it was given her with another intent." what that "intent" was she did not then explain, but later she informed dr. addington that it was to "make him [her father] kind" to cranstoun and herself. in the speech which she delivered in her own defence she said, "i gave it to procure his love"; and again, on the conclusion of bathurst's reply, "it is said i gave it my father to make him fond of me: there was no occasion for that--but to make him fond of cranstoun." in her _narrative_ she repeats this statement; but in her _own account_, written and revised by herself, she says, "i gave it to my poor father innocent of the effects it afterwards produced, god knows; _not so stupid as to believe it would have that desired, to make him kind to us_; but in obedience to mr. cranstoun, who ever seemed superstitious to the last degree." here we have an entirely fresh (if no less false) reason assigned for the exhibition of the wise woman's drug; only, of course, another lie, but one which, disposes of her previous defence. of the true qualities of the powder she had ample proof; she warned the maid that the gruel "might do for her," she saw its virulent effects upon gunnell and emmet, as well as on her father from its first administration, while her concealment of its use from the physician, and her destruction of the remanent portion, are equally incompatible with belief either in its innocence or her own. finally, her burning of cranstoun's letters, which, if her story was true, were her only means of confirming it, her attempts to bribe the servants, and her statements to fisher and the lanes at the angel, afford, in mr. baron legge's phrase, "a violent presumption" of her guilt. cranstoun, even at the time, did not lack apologists, who held that miss blandy, herself the solo criminal, cunningly sought to involve her guileless lover in order to lessen her own guilt. this view has been endorsed by later authorities. anderson, in his _scottish nation_, remarks, "there does not appear to have been any grounds for supposing that the captain was in any way accessory to the murder"; and mr. t.f. henderson, in his article on cranstoun in the _dictionary of national biography_, observes, "apart from her [mary blandy's] statement there was nothing to connect him with the murder." these writers seem to have overlooked the following important facts:--the letter written by cranstoun to mary, read by bathurst in his opening speech, the terms of which plainly prove the writer's complicity; and the packet rescued from the fire, bearing in his autograph the words, "the powder to clean the pebbles with," which, when we remember the nature of its contents, leaves small doubt of the sender's guilt. "a supposition," says mr. bleackley, "that does not explain [these] two damning circumstances must be baseless." the nocturnal manifestations experienced by cranstoun, and interpreted by his friend mrs. morgan as presaging mr. blandy's death, must also be explained. further, it would be interesting to know how the defenders of cranstoun account for the warning given him by mary in the intercepted letter--"lest any accident should happen to your letters, _take care what you write_." that this was part of a subtle scheme to inculpate her lover will, in the circumstances, hardly be maintained. as mr. andrew lang once remarked of a hypothesis equally untenable, "that cock won't fight." would cranstoun have fled as he did from justice, and gone into voluntary exile for life, when, if innocent, he had only to produce mary's letters to him in proof of the blameless character of their correspondence? and why, when on his death those letters passed into lord cranstoun's custody, did not that nobleman publish them in vindication of his brother's honour, as he was directly challenged to do by a pamphleteer of the day? the crown authorities, at any rate, as we have seen, did not share the opinion expressed by the writers above cited; and from what was said by mr. justice buller, in the case of _george barrington_ (mich. geo. iii., reported term rep. ), it appears that cranstoun, for his concern in the murder of mr. blandy, was prosecuted to outlawry, the learned judge observing with reference to the form adopted on that occasion, "it was natural to suppose groat care had been taken in settling it, because some of the most eminent gentlemen in the profession were employed in it." "alas! the record of her page will tell that one thus madden'd, lov'd, and guilty fell. who hath not heard of blandy's fatal fame, deplor'd her fate, and sorrow'd o'er her shame?" thus the author of _henley_: a poem (hickman & stapledon, ); and, indeed, the frequent references to the case in the "literary remains" of the eighteenth and nineteenth centuries bear witness to the justice of that poetic observation. the inimitable _letters_ of horace walpole contain, as might be expected, more than one mention of this _cause célèbre_. writing on rd march, , to horace mann, he says, "there are two wretched women that just now are as much talked of [as the two miss gunnings], a miss jefferies and a miss blandy; the one condemned for murdering her uncle, the other her father. both their stories have horrid circumstances; the first having been debauched by her uncle; the other had so tender a parent, that his whole concern while he was expiring, and knew her for his murderess, was to save her life. it is shocking to think what shambles this country is grown! seventeen were executed this morning, after having murdered the turnkey on friday night, and almost forced open newgate. one is forced to travel, even at noon, as if one was going to battle." and again, on th may, "miss blandy died with a coolness of courage that is astonishing, and denying the fact, which has made a kind of party in her favour; as if a woman who would not stick at parricide would scruple a lie! we have made a law for immediate execution on conviction of murder: it will appear extraordinary to me if it has any effect; for i can't help believing that the terrible part of death must be the preparation for it." the "law" regarding summary executions to which walpole refers is the act already mentioned. to henry seymour conway, on rd june, he writes, "since the two misses [blandy and jefferies] were hanged, and the two misses [the beautiful gunnings] were married, there is nothing at all talked of." on th august he writes to george montague, "i have since been with mr. conway at park place, where i saw the individual mr. cooper, a banker, and lord of the manor of henley, who had those two extraordinary forfeitures from the executions of the misses blandy and jefferies, two fields from the former, and a malthouse from the latter. i had scarce credited the story, and was pleased to hear it confirmed by the very person: though it was not quite so remarkable as it was reported, for both forfeitures were in the same manor." this circumstance is noted in the _annual register_ for , in connection with the death of mr. cooper, at the age of eighty. from the following references it would appear that the empty old house in hart street had acquired a sinister reputation. on th november walpole writes to conway, "have the coopers seen miss blandy's ghost, or have they made mr. cranston poison a dozen or two more private gentlewomen?"--the allusion being to the deaths of mrs. blandy and mrs. pocock; and again, on th august, , to john chute. "the town of henley has been extremely disturbed with an engagement between the ghosts of miss blandy and her father, which continued so violent, that some bold persons, to prevent further bloodshed broke in, and found it was two jackasses which had got into the kitchen." [illustration: miss mary blandy in oxford castle gaol (_from an engraving in the british museum_.)] walpole barely exaggerates the wholesale legal butcheries by which the streets of london were then disgraced. "many cartloads of our fellow-creatures are once in six weeks carried to slaughter," says henry fielding, in his _enquiry_ ( ); and well has mr. whibley described the period as "newgate's golden age." as for tyburn tree, we read in its _annals_, for example, " . july . eleven executed at tyburn." we can only glance at one or two further instances of the diffusion of "blandy's fatal fame." none of the varied forms of the _newgate calendar_--that criminous _who's who?_--fails to accord her suitable if inaccurate notice. with other letter-writers of the time than the genial horace the case forms a topical subject. james granger reports to a reverend correspondent that "the principal subject of conversation in these parts is the tragical affair transacted at henley.... it is supposed, as there is no direct and absolute proof that she was guilty, and her friends are rich and have great interest, that she will escape punishment." to mrs. delany, writing the day after the execution, the popular heroine "appeared very guilty by her trial," but we learn that lady huntingdon had written a letter to miss blandy after her conviction. on nd april, , miss talbot writes to mrs. carter, who thought mary had been "too severely judged," that "her hardiness in guilt" was shocking to think of. "let me tell you one fact that young goosetree, the lawyer, told to the bishop of gloucester," she writes, with reference to miss blandy's repeated statement that she never believed her father a rich man. "this goosetree visited her in jail as an old acquaintance. she expressed to him great amazement at her father's being no richer, and said she had no notion but he must have been worth £ , . mr. goosetree prudently told her the less she said about that the better, and she never said it afterwards, but the contrary." miss talbot adds that certain letters in lord macclesfield's hands "falsify others of her affirmations." by th may, , mrs. delany writes, "we are now very full of talk about eliza canning." as time goes on the tragedy of henley, though gradually becoming a tradition, is still susceptible of current allusion. john wilkes, writing from bath to his daughter on rd january, , regarding a lady of their acquaintance who proposed to keep house for a certain doctor, remarks "that he is sure it could not have lasted long, for she would have poisoned him, as miss blandy did her father, and forged a will in her own favour"; but tate wilkinson, in his _memoirs_, observes, "elizabeth canning, mary squires, the gipsy, and miss blandy were such universal topics in that you would have supposed it the business of mankind to talk only of them; yet now, in , ask a young man of twenty-five or thirty a question relative to these extraordinary personages, and he will be puzzled to answer, and will say, 'what mean you by enquiring? i do not understand you,'" so quickly had the "smarts" of the new generation forgotten the "fair blandy" of their fathers' toasts. to make an end of such quotations, which might indefinitely be multiplied, we shall only refer the reader to lady russell's _three generations of fascinating women_ (london: ), for good reading _passim_, and with special reference to her account of the interest taken in the case by lady ailesbury of park place, who "was related to the instigator of the crime," and, believing in mary's innocence, used all her influence to obtain a pardon. to mr. horace bleackley's brilliant study of the case we have already in the preface referred. it may, in closing, be worth while to remind the student of such matters that the year with which we have had so much concern was in other respects an important one in the annals of crime. on th may, , the "red fox," glenure, fell by an assassin's bullet in the wood of lettermore, which fact resulted in the hanging of a guiltless gentleman and, in after years, more happily inspired an immortal tale; while on st january, , occurred the disappearance of elizabeth canning, that bewildering damsel whose mission it was to baffle her contemporaries and to set at nought the skill of subsequent inquirers. well, we have learned all that history and tradition has to tell us about mary blandy; but what do we really know of that sombre soul that sinned and suffered and passed to its appointed place so long ago? a few "facts," some "circumstances"--which, if we may believe the dictum of mr. baron legge, cannot lie; and yet she remains for us dark and inscrutable as in her portrait, where she sits calmly in her cell, preparing her false _account_ for the misleading of future generations. like her french "parallel," marie-madeleine de brinvilliers, like that other madeleine of scottish fame, she leaves us but a catalogue of ambiguous acts; her secret is still her own. if only she had been the creature of some great novelist's fancy, how intimately should we then have known all that is hidden from us now; imagine her made visible for us through the exquisite medium of mr. henry james's incomparable art--the subtle individual threads all cunningly combined, the pattern wondrously wrought, the colours delicately and exactly shaded, until, in the rich texture of the finished tapestry, the figure of the woman as she lived stood perfectly revealed. leading dates in the blandy case. . may--marriage of cranstoun and anne murray. . february--birth of their daughter. . august--cranstoun meets mary blandy at lord mark kerr's. october--mrs. cranstoun takes proceedings in commissary court. . august--second meeting of cranstoun and mary. cranstoun visits the blandys and stays six months. . january--cranstoun returns to london. march--cranstoun's marriage upheld by the commissary court. may--mrs. blandy's illness at turville court. cranstoun pays a second six-months' visit to the blandys. december--cranstoun's regiment "broke" at southampton. he returns to london. . march--mrs. blandy and mary visit mr. sergeant stevens in doctors' commons. september--mrs. blandy taken ill after her return home. september--death of mrs. blandy. . august--cranstoun returns to henley. puts powder in mr. blandy's tea. october--cranstoun professes to hear nocturnal music, &c. november--cranstoun leaves henley for the last time. . april--cranstoun writes from scotland to mary that he has seen mrs. morgan and will send powder with pebbles. june--powder and pebbles received by mary, with directions to put the powder in tea. mr. blandy becomes unwell. gunnell and emmet ill after drinking his tea. july--cranstoun writes to mary suggesting she should put the powder in gruel. august--gunnell makes gruel in pan by mary's orders. august--mary seen stirring gruel in pantry. mr. blandy taken seriously ill in the night. august--mr. norton, the apothecary, called in. gruel warmed for mr. blandy's supper. august--emmet eats what was left the night before, and is taken ill. mary orders the remains of the gruel to be warmed. gunnell and binfield notice white sediment in pan and lock it up. august--gunnell and binfield take pan to mrs. mounteney, who delivers it to mr. norton. august--mr. stevens, of fawley, arrives and hears suspicions. august--gunnell tells mr. blandy of suspicions. mary burns papers and packet. dr. addington called in. august--pan and packet given to dr. addington. he warns mary. her letter to cranstoun intercepted. august--last interview between mary and her father. august--mr. blandy worse. dr. lewis called in. mary confined to her room. august--death of mr. blandy. mary attempts to bribe harmon and binfield to effect her escape. august--flight of mary. coroner's inquest. mary apprehended. august--mary removed to oxford castle. september--cranstoun escapes to calais. . march--grand jury find a true bill against mary blandy. march--trial at oxford assizes. prisoner convicted and sentenced to death. march--execution of mary blandy. december--death of cranstoun. the trial at the assizes held at oxford for the county of oxford. tuesday, rd march, . _judges_-- the honourable heneage legge, esq., and sir sydney stafford smythe, knt., two of the barons of his majesty's court of exchequer. _counsel for the crown_-- the honourable mr. bathurst. mr. serjeant hayward. the honourable mr. barrington. mr. hayes. mr. nares. mr. ambler. _counsel for the prisoner_-- mr. ford. mr. morton. mr. aston. the indictment. on monday, the nd of march, , a bill of indictment was found by the grand inquest for the county of oxford against mary blandy, spinster, for the murder of francis blandy, late of the parish of henley-upon-thames, in the said county, gentleman. on tuesday, the rd of march, , the court being met, the prisoner mary blandy was set to the bar, when the court proceeded thus-- clerk of the arraigns--mary blandy, hold up thy hand. [which she did.] you stand indicted by the name of mary blandy, late of the parish of henley-upon-thames, in the county of oxford, spinster, daughter of francis blandy, late of the same place, gentleman, deceased, for that you, not having the fear of god before your eyes, but being moved and seduced by the instigation of the devil, and of your malice aforethought, contriving and intending, him the said francis blandy, your said late father, in his lifetime, to deprive of his life, and him feloniously to kill and murder on the th day of november, in the twenty-third year of the reign of our sovereign lord george the second, now king of great britain, and on divers days and times between the said th day of november and the th day of august, in the twenty-fifth year of the reign of his said majesty, with force and arms, at the parish of henley-upon-thames aforesaid, in the county aforesaid, did knowingly, wilfully, and feloniously, and of your malice aforethought, mix and mingle certain deadly poison, to wit, white arsenic, in certain tea, which had been at divers times during the time above specified prepared for the use of the said francis blandy to be drank by him; you, the said mary, then and there well knowing that the said tea, with which you did so mix and mingle the said deadly poison as aforesaid, was then and there prepared for the use of the said francis blandy, with intent to be then and there administered to him for his drinking the same; and the said tea with which the said poison was so mixed as aforesaid, afterwards, to wit, on the said th day of november and on the divers days and times aforesaid, at henley-upon-thames aforesaid, was delivered to the said francis, to be then and there drank by him; and the said francis blandy, not knowing the said poison to have been mixed with the said tea, did afterwards, to wit, on the said th day of november and on the said divers days and times aforesaid, there drink and swallow several quantities of the said poison so mixed as aforesaid with the said tea; and that you the said mary blandy might more speedily kill and murder the said francis blandy, you the said mary blandy, on the said th day of august and at divers other days and times between the said th day of august and the th day of august, in the twenty-fifth year of the reign of our said sovereign lord george the second, now king of great britain, &c., with force and arms, at the parish of henley-upon-thames aforesaid, in the county aforesaid, did knowingly, wilfully, feloniously, and of your malice aforethought, mix and mingle certain deadly poisons, to wit, white arsenic, with certain water gruel, which had been made and prepared for the use of your said then father, the said francis blandy, to be drank by him, you the said mary then and there well knowing that the said water gruel, with which you did so mix and mingle the said deadly poison as aforesaid, was then and there made for the use of the said francis blandy, with intent to be then and there administered to him for his drinking the same; and the same water gruel, with which the said poison was so mixed as aforesaid, afterwards, to wit, on the same day and year, at henley-upon-thames aforesaid, was delivered to the said francis, to be then and there drank by him; and the said francis blandy, not knowing the said poison to have been mixed with the said water gruel, did afterwards, to wit, on the said th day of august and on the next day following, and on divers other days and times afterwards, and before the said th day of august, there drink and swallow several quantities of the said poison, so mixed as aforesaid with the said water gruel, and the said francis blandy, of the poison aforesaid and by the operation thereof, became sick and greatly distempered in his body, and from the several times aforesaid until the th day of the same month of august, in the twenty-fifth year aforesaid, at the parish aforesaid, in the county aforesaid, did languish, on which said th day of august, in the twenty-fifth year aforesaid, the said francis blandy, at the parish aforesaid, in the county aforesaid, of that poison died; and so you, the said mary blandy, him the aforesaid francis blandy, at henley-upon-thames aforesaid, in manner and form aforesaid, feloniously, wilfully, and of your malice aforethought, did poison, kill, and murder, against the peace of our said lord the king, his crown and dignity. clerk of the arraigns--how sayest thou, mary blandy, art thou guilty of the felony and murder whereof thou standest indicted, or not guilty? prisoner--not guilty. clerk of the arraigns--culprit, how wilt thou be tried? prisoner--by god and my country. clerk of the arraigns--god send thee a good deliverance. clerk of the arraigns--cryer, make a proclamation for silence. cryer--oyez, oyez, oyez! my lords the king's justices strictly charge and command all manner of persons to keep silence, upon pain of imprisonment. cryer--oyez! you good men, that are impanelled to try between our sovereign lord the king and the prisoner at the bar, answer to your names and save your fines. the jury were called over and appeared. clerk of the arraigns--you, the prisoner at the bar, these men which were last called and do now appear are those who are to pass between our sovereign lord the king and you upon the trial of your life and death. if therefore you will challenge them, or any of them, you must challenge them as they come to the book to be sworn, before they are sworn; and you shall be heard. clerk of the arraigns--anthony woodward. cryer--anthony woodward, look upon the prisoner. you shall well and truly try and true deliverance make between our sovereign lord the king and the prisoner at the bar, whom you shall have in charge, and a true verdict give, according to the evidence. so help you god. and the same oath was administered to the rest (which were sworn), and their names are as follow:-- anthony woodward, sworn; charles harrison, sworn; samuel george glaze, sworn; william farebrother, sworn; william haynes, sworn; thomas crutch, sworn; henry swell, challenged; john clarke, sworn; william read, challenged; harford dobson, challenged; william stone, challenged; william hawkins, sworn; john hayes, the elder, sworn; samuel badger, sworn; samuel bradley, sworn; william brooks, challenged; joseph jagger, sworn. clerk of the arraigns--cryer, count these. jury--anthony woodward, charles harrison, samuel george glaze, william farebrother, william haynes, thomas crutch, john clarke, william hawkins, john haynes, sen., samuel badger, samuel bradley, joseph jagger. cryer--gentlemen, are ye all sworn? clerk of the arraigns--cryer, make proclamation. cryer--oyez, oyez, oyez! if any one can inform my lords the king's justices, the king's serjeant, the king's attorney-general, or this inquest now to be taken of any treasons, murders, felonies, or misdemeanours committed or done by the prisoner at the bar let him come forth and he shall be heard, for the prisoner stands now at the bar upon her deliverance; and all persons that are bound by recognisance to give evidence against the prisoner at the bar let them come forth and give their evidence, or they will forfeit their recognisances. clerk of the arraigns--mary blandy, hold up thy hand. gentlemen of the jury, look upon the prisoner and hearken to her charge. she stands indicted by the name of mary blandy, of the parish of henley-upon-thames, in the county of oxford, spinster, daughter of francis blandy, late of the same place, gentleman, deceased, for that she not having [as in the indictment before set forth]. upon this indictment she has been arraigned, and upon her arraignment has pleaded not guilty, and for her trial has put herself upon god and her country, which country you are. your charge therefore is to inquire whether she be guilty of the felony and murder whereof she stands indicted, or not guilty. if you find her guilty you shall inquire what goods or chattels, lands or tenements she had at the time of the felony committed, or at any time since. if you find her not guilty you shall inquire whether she fled for the same. if you find that she did fly for the same you shall inquire of her goods and chattels as if you had found her guilty. if you find her not guilty, and that she did not fly for the same, say so, and no more; and hear your evidence. the hon. mr. barrington then opened the indictment. after which, [sidenote: mr. bathurst] the hon. mr. bathurst[ ] spoke as follows:-- may it please your lordships and you gentlemen of the jury, i am counsel in this case for the king, in whose name and at whose expense this prosecution is carried on against the prisoner at the bar, in order to bring her to justice for a crime of so black a dye that i am not at all surprised at this vast concourse of people collected together to hear and to see the trial and catastrophe of so execrable an offender as she is supposed to be. for, gentlemen, the prisoner at the bar, miss mary blandy, a gentlewoman by birth and education, stands indicted for no less a crime than that of murder, and not only for murder, but for the murder of her own father, and for the murder of a father passionately fond of her, undertaken with the utmost deliberation, carried on with an unvaried continuation of intention, and at last accomplished by a frequent repetition of the baneful dose, administered with her own hands. a crime so shocking in its own nature and so aggravated in all its circumstances as will (if she is proved to be guilty of it) justly render her infamous to the latest posterity, and make our children's children, when they read the horrid tale of this day, blush to think that such an inhuman creature ever had an existence. i need not, gentlemen, paint to you the heinousness of the crime of murder. you have but to consult your own breasts, and you will know it. has a murder been committed? who ever beheld the ghastly corpse of the murdered innocent weltering in its blood and did not feel his own blood run slow and cold through all his veins? has the murderer escaped? with what eagerness do we pursue? with what zeal do we apprehend? with what joy do we bring to justice? and when the dreadful sentence of death is pronounced upon him, everybody hears it with satisfaction, and acknowledges the justice of the divine denunciation that, "by whom man's blood is shed, by man shall his blood be shed." if this, then, is the case of every common murderer, what will be thought of one who has murdered her own father? who has designedly done the greatest of all human injuries to him from whom she received the first and greatest of all human benefits? who has wickedly taken away his life to whom she stands indebted for life? who has deliberately destroyed, in his old age, him by whose care and tenderness she was protected in her helpless infancy? who has impiously shut her ears against the loud voice of nature and of god, which bid her honour her father, and, instead of honouring him, has murdered him? it becomes us, gentlemen, who appear here as counsel for the crown, shortly to open the history of this whole affair, that you may be better able to attend to and understand the evidence we have to lay before you. and though, in doing this, i will endeavour rather to extenuate than to aggravate, yet i trust i have such a history to open as will shock the ears of all who hear me. mr. francis blandy, the unfortunate deceased, was an attorney at law, who lived at henley, in this county. a man of character and reputation, he had one only child, a daughter--the darling of his soul, the comfort of his age. he took the utmost care of her education, and had the satisfaction to see his care was not ill-bestowed, for she was genteel, agreeable, sprightly, sensible. his whole thoughts were bent to settle her advantageously in the world. in order to do that he made use of a pious fraud (if i may be allowed the expression), pretending he could give her £ , for her fortune. this he did in hopes that some of the neighbouring gentlemen would pay their addresses to her, for out of regard to him she was from her earliest youth received into the best company, and her own behaviour made her afterwards acceptable to them. but how short-sighted is human prudence? what was intended for her promotion, proved his death and her destruction. for, gentlemen, about six years ago, one captain william henry cranstoun, a gentleman then in the army, happened to come to henley to recruit. he soon got acquainted with the prisoner, and, hearing she was to have £ , , fell in love--not with her, but with her fortune. children he had before; married he was at that time, yet, concealing it from her, he insinuated himself into her good graces, and obtained her consent for marriage. the father, who had heard a bad character of him, and who had reason to believe, what was afterwards confirmed, that he was at that very time married, you will easily imagine was averse to the proposal. upon this captain cranstoun and the prisoner determined to remove that obstacle out of their way, and resolved to get as soon as possible into possession of the £ , that the poor man had unfortunately said he was worth. in order for this, the captain being at mr. blandy's house in august, , they both agreed upon this horrid deed. and that people might be less surprised at mr. blandy's death, they began by giving out that they heard music in the house--a certain sign (as mr. cranstoun had learned from a wise woman, one mrs. morgan, in scotland) that the father would die in less than twelve months. the captain, too, pretended he was endowed with the gift of second sight, and affirmed that he had seen mr. blandy's apparition. this was another certain sign of his death, as she told the servants, to whom she frequently said her father would not live long. nay, she went farther, and told them he would not live till the october following. when it was she first began to mix poison with his victuals it is impossible for us to ascertain, but probably it was not long after november, , when mr. cranstoun left henley. the effects of the poison were soon perceived. you will hear dr. addington, his physician, tell you mr. blandy had for many months felt the dreadful effects of it. one of the effects was the teeth dropping out of his head whole from their sockets. yet what do you think, gentlemen, the daughter did when she perceived it? "she damned him for a toothless old rogue, and wished him at hell." the poor man frequently complained of pains in his bowels, had frequent reachings and sickness; yet, instead of desisting, she wanted more poison to effect her purpose. and mr. cranstoun did accordingly in the april following send her a fresh supply; under the pretence of a present of scotch pebbles, he enclosed a paper of white arsenic. this she frequently administered in his tea; and we shall prove to you that in june, having put some of it into a dish of tea, mr. blandy disliking the taste, left half in the cup. unfortunately, a poor old charwoman (by name ann emmet), glad to get a breakfast, drank the remainder, together with a dish or two more out of the pot, and ate what bread and butter had been left. the consequence was that she was taken violently ill with purging and vomiting, and was in imminent danger of her life. the poor woman's daughter came and told miss blandy how ill her mother was; she, sorry that the poison was misapplied, said, "do not let your mother be uneasy, i will send her what is proper for her." and, accordingly, sent her great quantities of sack whey and thin mutton broth, than which no physician could have prescribed better, and thus drenched the poor woman for ten days together, till she grew tired of her medicines, and sent her daughter again to miss blandy to beg a little small beer. "no, no small beer," the prisoner said, "that was not proper for her." most plainly, then, she knew what it was the woman had taken in her father's tea. she knew its effect. she knew the proper antidotes. having now experienced the strength of the poison, she grew more open and undaunted, was heard to say, "who would grudge to send an old father to hell for £ , ?" i will make no remark upon such a horrid expression--it needs none. after this she continued to mix the poison with her father's tea as often as she had an opportunity. soon afterwards susan gunnell, another witness we shall call, happened to drink some which her master had left; she was taken ill upon it, and continued so for three weeks. this second accident alarmed the prisoner. she was afraid of being discovered. she found it would not mix well with tea. accordingly, she wrote to mr. cranstoun for further instructions. in answer to it, he bids her "put it into some liquid of a more thickish substance." the father being ill, frequently took water gruel. this was a proper vehicle for the powder. therefore from this time you will find her always busy about her father's gruel. but lest susan gunnell, who had been ill, should eat any of it, she cautioned her particularly against it, saying, "susan, as you have been so ill, you had better not eat any of your master's water gruel; i have been told water gruel has done me harm, and perhaps it may have the same effect upon you." and lest this caution should not be sufficient, she spoke to betty binfield, the other maidservant, and asked her whether susan ever ate any of her father's gruel, adding, "she had better not, for if she does it may do for her, you may tell her." evidently, then, she knew what were the effects of the powder she put into her father's gruel; for if it would "do for" the servant, it would "do for" her father. but the time approached beyond which she had foretold her father would not live. it was the middle of july, and the father still living. at this mr. cranstoun grows impatient. upon the th of july he writes to her, and, expressing himself in an allegorical manner, which, however, you will easily understand, he says, "i am sorry there are such occasions to clean your pebbles; you must make use of the powder to them by putting it in anything of substance, wherein it will not swim a-top of the water, of which i wrote to you of in one of my last. i am afraid it will be too weak to take off their rust, or at least it will take too long a time."[ ] here he is encouraging her to double the dose; says, he is afraid it will be too weak, and will take up too much time. and, as a further incitement to her to make haste, describes the beauties of scotland, and tells her that his mother, lady cranstoun, had employed workmen to fit up an apartment for her at lennel house. soon after the receipt of this letter she followed the advice. and you will accordingly find the dose doubled. her father grew worse, and, as she herself told the servants, complained of a fireball in his stomach, saying, "he never will be well till he has got rid of it." and yet you will find she herself, fearful lest he should get rid of it, was continually adding fuel to the fire, till it had consumed her father's entrails. gentlemen, i will not detain you by going through every particular, but bring you to the fatal period. upon the rd of august, being saturday, susan gunnell made a large pan of water gruel for her master. upon monday, the th, the prisoner will be proved to go into the pantry where it was kept, and, after having, according to mr. cranstoun's advice, put in a double dose of the powder, she stirred it about, for a considerable time, in order to make it mix the better. when, fearing she should have been observed, she went immediately into the laundry, to the maids, and told them that "she had been in the pantry, and, after stirring her papa's water gruel, had ate the oatmeal at the bottom," saying that, "if she was ever to take to the eating anything in particular, it would be oatmeal." strange inconsistence! she who had cautioned the maid against it not above a fortnight before, who had declared that it had been prejudicial to her own health, is on a sudden grown mighty fond of it. but the pretence is easily to be seen through. that afternoon some of the water gruel was taken out of the pan and prepared for her father's supper. she again in the kitchen takes care to stir it sufficiently, looks at the spoon, rubs some between her fingers, and then sends it up to the poor old man her father. he scarce had swallowed it when he was taken violently ill, and continued so all the next day, with a griping, purging, and vomiting. yet she herself orders a second mess of the same gruel for her father's supper on the tuesday, and was herself the person who carried it up to her father and administered it to him as nourishment. the poor old man, grown weak with the frequent repetition, had not drank half the mess before he was seized, from head to foot, with the most violent pricking pains, continual reaching and vomiting, and was obliged to go to bed without finishing it. the next morning the poor charwoman, coming again to the house, unfortunately ate the remainder of the gruel, and was instantly affected in so violent a manner that for two hours together it was thought she would have died in mr. blandy's house. the prisoner at this time was in bed; but the maid, going up to her room, told her how ill dame emmet had been, at the same time saying she had ate nothing but the remainder of her father's water gruel. the prisoner's answer was, "poor woman! i am glad i was not up, i should have been shocked to have seen her"--should have been shocked to have seen the poor charwoman eat what was prepared for her father, but was never shocked at her father's eating it, or at his sufferings! gentlemen, in the afternoon of the wednesday, notwithstanding the poor man, her father, had suffered so much for two days together, yet she again endeavours to give him more of the same gruel. "no," says the maid, "it has an odd taste; it is grown stale, i will make fresh." "it is not worth while to make fresh now, it will take you from your ironing; this will do," was the prisoner's answer. however, susan made fresh, after which wanting the pan to put it in, she went to throw away what was before in it. upon tilting the pan, she perceived a white powder at the bottom, which she knew could not be oatmeal. she showed it her fellow-servant, when, feeling it, they found it gritty. they then too plainly perceived what it was had made their poor master ill. what was to be done? susan immediately carried the pan with the gruel and powder in it to mrs. mounteney, a neighbour and friend of the deceased. mrs. mounteney kept it till it was delivered to the apothecary, the apothecary delivered it to the physician, and he will tell you that upon trying it he found it to be white arsenic. mr. blandy continued from day to day to grow worse. at last, upon the saturday morning, susan gunnell, an old honest, maidservant, uneasy to see how her poor master had been treated, went to his bedside, and, in the most prudent and gentlest manner, broke to him what had been the cause of his illness, and the strong ground there was to suspect that his daughter was the occasion of it. the father, with a fondness greater than ever a father felt before, cried out, "poor love-sick girl! what will not a woman do for the man she loves? but who do you think gave her the powder?" she answered, "she could not tell, unless it was sent by mr. cranstoun." "i believe so too," says the master, "for i remember he has talked learnedly of poisons. i always thought there was mischief in those cursed scotch pebbles." soon afterwards he got up and came to breakfast in his parlour, where his daughter and mr. littleton, his clerk, then were. a dish of tea, in the usual manner, was ready poured out for him. he just tasted it and said, "this tea has a bad taste," looked at the cup, then looked hard at his daughter. she was, for the first time, shocked, burst into tears, and ran out of the room. the poor father, more shocked than the daughter, poured the tea into the cat's basin, and went to the window to recover himself. she soon came again into the room. mr. littleton said, "madam, i fear your father is very ill, for he has flung away his tea." upon this news she trembled, and the tears again stood in her eyes. she again withdraws. soon afterwards the father came into the kitchen, and, addressing himself to her, said, "molly, i had like to have been poisoned twenty years ago, and now i find i shall die by poison at last." this was warning sufficient. she immediately went upstairs, brought down mr. cranstoun's letters, together with the remainder of the poison, and threw them (as she thought unobserved) into the fire. thinking she had now cleared herself from the suspicious appearances of poison, her spirits mend, "she thanked god that she was much better, and said her mind was more at ease than it had been." alas! how often does that which we fondly imagine will save us become our destruction? so it was in the present instance. for providentially, though the letters were destroyed, the paper with the poison in it was not burnt. one of the maids having immediately flung some fresh coals upon the fire, miss blandy went well satisfied out of the room. upon her going out, susan gunnell said to her fellow-servants, "i saw miss blandy throw some papers in the fire, let us see whether we can discover what they were." they removed the coals, and found a paper with white powder in it, wrote upon, in mr. cranstoun's hands, "powder to clean the pebbles."[ ] this powder they preserved, and the doctor will tell you that it was white arsenic, the same which had been found in the pan of gruel. having now (as she imagined) concealed her own being concerned, you will find her the next day endeavouring to prevent her lover from being discovered. mr. blandy of kingston having come the night before to see her father, on sunday morning she sent mr. littleton with him to church; while they were there she sat down and wrote this letter to her beloved cranstoun-- dear willy,--my father is so bad, that i have only time to tell you, that if you do not hear from me soon again, don't be frightened. i am better myself. lest any accident should happen to your letters, take care what you write. my sincere compliments. i am ever yours. "my father is so bad." who had made him so? yet does she say she was sorry for it? no; she knew her father was then dying by that powder that he had sent her, yet could acquaint him she was herself better. under those circumstances could caution him to take care what he wrote, lest his letters should be discovered! what can speak more strongly their mutual guilt? this letter she sealed with no less than five wafers. when mr. littleton came from church she privately gave it to him, desiring it might be directed as usual, and put into the post. mr. littleton was at that time too well apprised of this black transaction to obey her commands. he opened the letter, took a copy of it. upon further recollection, carried the original to the father, who bid him open and read it. he did so. what do you think, gentlemen, was all the poor old man said upon this discovery? he only again dropped these words, "poor love-sick girl! what will not a woman do for the man she loves?" upon the monday morning, after having been kept for two days without seeing her father, by the order of the physicians, her conscience, or rather fear, began to trouble her; she told the maid she should go distracted if she did not see her father, and sent a message to beg to see him. accordingly she was admitted. the conversation between them was this--"papa, how do you do?" "my dear, i am very ill." she immediately fell upon her knees and said, "dear sir, banish me where you will; do with me what you please, so you do but pardon and forgive me. and as to mr. cranstoun, i never will see, write, or speak to him again." he answered, "i do forgive you, but you should, my dear, have considered that i was your own father." upon this the prisoner said, "sir, as to your illness i am innocent." susan gunnell, who was present, interrupted her at this expression, and told her she was astonished to hear her say she was innocent, when they had the poison to produce against her that she had put into her father's water gruel, and had preserved the paper she had thrown into the fire. the father, whose love and tenderness for his daughter exceeded expression, could not bear to hear her thus accused; therefore, turning himself in his bed, cried out, "oh that villain! that hath eat of the best, and drank of the best my house could afford, to take away my life and ruin my daughter!" upon hearing this the daughter ran to the other side of the bed to him; upon which he added, "my dear, you must hate that man, you must hate the very ground he treads on." struck with this, the prisoner said, "dear sir, your kindness towards me is worse than swords to my heart. i must down upon my knees and beg you not to curse me." hear the father's answer, a father then dying by poison given by her hand--"i curse thee, my dear! no, i bless you, and will pray to god to bless you, and to amend your life"; then added, "so do, my dear, go out of the room lest you should say anything to accuse yourself." was ever such tenderness from a parent to a child! she was prudent enough to follow his advice, and went out of the room without speaking. his kindness was swords to her heart for near half an hour. going downstairs she met betty binfield, and, whilst she was thus affected, owned to her she had put some powder into her father's gruel, and that susan and she, for their honesty to their master, deserved half her fortune. gentlemen, not to tire you with the particulars of every day, upon wednesday, in the afternoon, the father died. upon his death the prisoner, finding herself discovered, endeavoured to persuade the manservant to go off with her; but he was too honest to be tempted by a reward to assist her in going off, though she told him it would be £ in his way. that night she refused to go to bed. not out of grief for her father's death, for you will be told by the maid who sat up with her that she never during the whole night showed the least sorrow, compassion, or remorse upon his account. but in the middle of the night she proposed to get a post-chaise in order to go to london, and offered the maid twenty-five guineas to go with her. "a post-chaise! and go to london! god forbid, madam, i should do such a thing." the prisoner, finding the maid not proper for her purpose, immediately put a smile upon her face--"i was only joking." only joking! good god! would she now have it thought she was only joking? her father just dead by poison: she suspected of having poisoned him; accused of being a parricide; and would she have it thought she was capable of joking? when i see the assistance she now has (and i am glad to see she has the assistance of three as able gentlemen as any in the profession) i am sure she will not be now advised to say she was then joking. but it will appear very plainly to you, gentlemen, that she was not joking, for the next morning she dressed herself in a proper habit for a journey, and, while the people put to take care of her were absent, stole out of the house and went over henley bridge. but the mob, who had heard of what she had done, followed her so close that she was forced to take shelter in a little alehouse, the angel. mr. fisher, a gentleman who was afterwards one of the jury upon the coroner's inquisition, came there, and prevailed with her (or in other words forced her) to return home. upon her return, the inquest sitting, she sends for mr. fisher into another room and said, "dear mr. fisher, what do you think they will do with me? will they send me to oxford gaol?" "madam," said he, "i am afraid it will go hard with you. but if you have any of mr. cranstoun's letters, and produce them, they may be of some service to you." upon hearing this she cried out, "dear mr. fisher, what have i done? i had letters that would have hanged that villain, but i have burnt them. my honour to that villain has brought me to my destruction." and she spoke the truth. this, gentlemen, is in substance the history of this black affair. but, my lords, though this is the history in order of time, yet it is not the order in which we shall lay the evidence before your lordships and the jury. it will be proper for us to begin by establishing the fact that mr. francis blandy did die of poison. when the physicians have proved that, we will then proceed to show that he died of the poison put into the water gruel on the th of august. after this we will call witnesses who from a number of circumstances, as well as from her own confession, will prove she put it into her father's water gruel, knowing it was for her father, and knowing it to be poison. having done this, we will conclude with a piece of evidence which i forgot to mention before, and that is the conversation between her and mr. lane at the angel. mr. lane and his wife happening to be walking at that time, finding a mob about the door, stepped into the alehouse to see the prisoner. the moment she saw a gentleman, though it was one she did not know, she accosted him, "sir, you appear to be a gentleman; for heaven's sake, what will become of me?" "madam!" said he, "you will be sent to oxford gaol; you will there be tried for your life. if you are innocent, you will be acquitted; if you are guilty, you will suffer death." the prisoner upon hearing this stamped with her foot, and said, "oh! that damned villain!" then pausing, "but why do i blame him? i am most blame myself, for i gave it, and i knew the consequence." if she knew the consequence, i am sure there are none of you gentlemen but who will think she deserves to suffer the consequence. and let me here observe how evidently the hand of providence has interposed to bring her to this day's trial that she may suffer the consequence. for what but the hand of providence could have preserved the paper thrown by her into the fire, and have snatched it unburnt from the devouring flame! good god! how wonderful are all thy ways, and how miraculously hast thou preserved this paper to be this day produced in evidence against the prisoner in order that she may suffer the punishment due to her crime, and be a dreadful example to all others who may be tempted in like manner to offend thy divine majesty! let me add that, next to providence, the public are obliged to the two noble lords[ ] whose indefatigable diligence in inquiring into this hidden work of darkness has enabled us to lay before you upon this occasion the clearest and strongest proof that such a dark transaction will admit of. for poisoning is done in secret and alone. it is not like other murders, neither can it be proved with equal perspicuity. however, the evidence we have in this case is as clear and direct as possible, and if it comes up to what i have opened to you i make no doubt but you will do that justice to your country which the oath you have taken requires of you. [sidenote: mr. serjeant hayward] mr. serjeant hayward--may it please your lordships and you gentlemen of the jury, i likewise am appointed to assist the crown on this occasion, but his majesty's learned counsel having laid before you so faithful a narrative of this dismal transaction, it seems almost unnecessary for me to take up any more of your time in repeating anything that has been before said; and, indeed, my own inclinations would lead me to cast a veil over the guilty scene--a scene so black and so horrid that if my duty did not call me to it i could rather wish it might be for ever concealed from human eyes. but as we are now making inquisition for blood it is absolutely necessary for me to make some observations upon that chain of circumstances that attended this bloody contrivance and detested murder. [illustration: captain cranstoun and miss blandy (_from an engraving in the british museum_.)] experience has taught us that in many cases a single fact may be supported by false testimony, but where it is attended with a train of circumstances that cannot be invented (had they never happened), such a fact will always be made out to the satisfaction of a jury by the concurring assistance of circumstantial evidence. because circumstances that tally one with another are above human contrivance. and especially such as naturally arise in their order from the first contrivance of a scheme to the fatal execution of it. having suggested this much, i shall now proceed to lay before you those sort of circumstances that seem to me to arise through this whole affair, and leave it to your judgment whether they do not amount to too convincing a proof that the prisoner at the bar has knowingly been the cause of her own father's death, for upon the prisoner's knowledge of what she did will depend her fate. of all kinds of murders that by poison is the most dreadful, as it takes a man unguarded, and gives him no opportunity to defend himself, much more so when administered by the hand of a child, whom one could least suspect, and from whom one might naturally look for assistance and comfort. could a father entertain any suspicion of a child to whom, under god, he had been the second cause of life? no, sure, and yet this is the case now before you. the unfortunate deceased has received his death by poison, and that undoubtedly administered by the hand of his own--his only--his beloved child. spare me, gentlemen, to pay the tribute of one tear to the memory of a person with whom i was most intimately acquainted, and to the excellency of whose disposition and integrity of heart i can safely bear faithful testimony. oh! were he now living, and to see his daughter there, the severest tortures that poison could give would be nothing to what he would suffer from such a sight. and since the bitterest agonies must at this time surround the heart of the prisoner if she does but think of what a father she has lost, i can readily join with her in her severest afflictions upon this occasion, and shall never blame myself for weeping with those that weep, nor can i make the least question but my learned assistants in this prosecution will with me rejoice likewise, if the prisoner, by making her innocence appear, shall upon the conclusion of this inquiry find occasion to rejoice. but, alas! too strong i fear will the charge against her be proved, too convincing are the circumstances that attend it. what those are, and what may be collected from them, is my next business to offer to your consideration. but before i enter thereupon i must beg leave to address myself to this numerous and crowded assembly, whom curiosity hath led hither to hear the event of this solemn trial, hoping that whatever may be the consequence of it to the prisoner her present melancholy situation may turn to our advantage, and reduce our minds to seriousness and attention. solemn, indeed, i may well call it as being a tribunal truly awful, for this method of trial before two of his majesty's learned judges has scarce ever been known upon a circuit; judges of undoubted virtue, integrity, and learning, who undergo this laborious and important work, not only for the sake of bringing guilt to punishment, but to guard and protect innocence whenever it appears. but you, young gentleman of this university, i particularly beg your attention, earnestly beseeching you to guard against the first approaches of and temptations to vice. see here the dreadful consequences of disobedience to a parent. who could have thought that miss blandy, a young lady virtuously brought up, distinguished for her good behaviour and prudent conduct in life, till her unfortunate acquaintance with the wicked cranstoun, should ever be brought to a trial for her life, and that for the most desperate and bloodiest kind of murder, committed by her own hand, upon her own father? had she listened to his admonitions this calamity never had befallen her. learn hence the dreadful consequences of disobedience to parents; and know also that the same mischief in all probability may happen to such who obstinately disregard, neglect, and despise the advice of those persons who have the charge and care of their education; of governors likewise, and of magistrates, and of all others who are put in authority over them. let this fix in your mind the excellent maxim of the good physician, "venienti occurrite morbo." let us defend ourselves against the first temptations to sin, and guard our innocence as we would our lives; for if once we yield, though but a little, in whose power is it to say, hitherto will i go, and no further? and now, gentlemen of the jury, those observations i had before mentioned, i shall attempt to lay before you in order to assist you in making a true judgment of the matter committed to your charge. the author and contriver of this bloody affair is not at present here. i sincerely wish that he was, because we should be able to convince him that such crimes as his cannot escape unpunished. the unhappy prisoner, ruined and undone by the treacherous flattery and pernicious advice of that abandoned, insidious, and execrable wretch, who had found means of introducing himself into her father's family, and whilst there, by false pretences of love, gained the affection of his only daughter and child. love! did i call it? it deserves not the name; if it was love of anything it was of the £ , supposed to be the young lady's fortune. could a man that had a wife of his own, and children, be really in love with another woman? such a thing cannot be supposed, and therefore i beg leave to call it avarice and lust only; but be it what it will, the life of the father becomes an obstacle to the criminal proceedings that were intended and designed to be carried on between them, and therefore he must be removed before that imaginary state of felicity could be obtained according to their projected scheme. mark how the destruction of this poor man is ushered into the world--apparitions, noises, voices, music, reported to be heard from time to time in the deceased's house. even his days are numbered out, and his own child limits the space of his life but till the following month of october. what could be the meaning of this, but to prepare the world for a death that was predetermined? who could limit the days of a man's life but a person who knew what was intended to be done towards the shortening of it? in order to bring this about cranstoun sends presents of pebbles, as also a powder to clean them, and this powder, gentlemen, you will find is the dreadful poison that accomplished this abominable scheme. from time to time mention is made of the pebbles, but not a syllable of the powder. why not of the one as well as of the other, if there had not been a mystery concealed in it? preparation is made for an experiment of its power before cranstoun's departure. he mixes the deadly draught, but the prisoner's conscience, not yet hardened, forced her to turn away her eyes, and she durst not venture to behold the cup prepared that was to send the father into another world. soon after this cranstoun quits the family (having, no question, left instructions how to proceed further in completing the scheme he had laid for taking off the old man), and this you'll find by letters under his own hand, that the powder, whatever it was, must not be mixed in too thin a liquid, because it might be discovered, and therefore water gruel is thought fitter for the purpose. by the frequent mixtures that were made upon these occasions the unfortunate servant and charwoman accidentally drank part of the deadly composition. when complaint is made of their sickness, how does the prisoner behave? does she not administer to them with as much art and skill as a physician could? does she not prescribe proper liquids and draughts to absorb and take off the edge of the corroding poison? if she knew not what it was how could she administer so successfully to prevent the fatal consequences of it both in the maid and the charwoman? during this transaction the unhappy father finds himself afflicted with torturing pains immediately after receiving the composition from his daughter. is there any care taken of him? any physician sent for to attend him? any healing draughts prepared to quiet the racks and tortures that he inwardly felt? none at all that i can find. he is left to take care of himself, and undergo those miseries that his own child had brought upon him, and yet had not the heart to give him any assistance. what could this proceed from, but guilty only? would not an innocent child have made the strictest inquiry how her own father came to be out of order? would she not have sought the world over for advice and assistance? but instead of that you hear the bitterest expressions proceed from her, expressions sufficient to shock human nature. they have been all mentioned already by my learned leader, and i will not again repeat them. observe, as things come nearer the crisis, whether her behaviour towards her father carries any better appearance. when it began to be suspected that mr. blandy's disorder was owing to poison, and strongly, from circumstances, that the prisoner was privy to it, the poor man, now too far gone, being informed that there was great reason to suspect his own child, what expressions does he make use of? no harsher than in the gentlest method saying, "poor love-sick girl! i always thought there was mischief in those scotch pebbles. oh, that damned villain cranstoun, that has ate of the best and drank of the best my house afforded, to serve me thus and ruin my poor love-sick girl!" an incontestable proof that he knew the cause of his disorder and the authors of it. the report spread about the house of the father's suspicions soon alarmed the prisoner; what does she do upon this occasion? can any other interpretation be put upon her actions than that they proceeded from a manifest intention to conceal her guilt? why is the paper of powder thrown into the fire? from whence, as my learned leader most elegantly observes, it is miraculously preserved. what occasion for concealment had she not been conscious of something that was wrong? if she had not known what had been in the paper, for what purpose was it committed to the flames? and what really was contained in that paper will appear to you to be deadly poison. the long-wished-for and fatal hour at last arrives, and but a little before a letter is sent by the prisoner to cranstoun that her father was extremely ill, begging him to be cautious what he writes, lest any accident should happen to his letters. do the circumstances, the language, or the time of writing this letter leave any room to suppose the prisoner could be innocent? they seem to me rather to be the fullest proof of her knowing what she had done. what accidents could befall cranstoun's letters? why is he to take care what he writes, if nothing but the effects of innocency were to be contained in those letters? in a very short time after this the strength of the poison carries the father out of the world. do but hear how the prisoner behaved thereupon. the father's corpse was not yet cold when she makes application to the footman, with a temptation of large sums of money as a reward, if he would go off with her; but the fidelity and virtue of the servant was proof against the temptation even of four or five hundred pounds. the next proposal is to the maid to procure a chaise, with the offer of a reward for so doing, and to go along with her to london; but this project likewise failed, through the honesty of the servant. the next morning, in the absence of edward herne (the guard that was set over her), she makes her escape from her father's house, and, dressed as if going to take a journey, walked down the street; but the mob was soon aware of her, and forced her to take shelter in a public-house over the bridge. do these proceedings look as if they were the effects of innocence? far otherwise, i am afraid. would an innocent person have quitted a deceased parent's house at a time when she was most wanting to make proper and decent preparations for his funeral? would an innocent person, at such a time as this, offer money for assistance to make an escape? i think not; and i wish she may find a satisfactory cause to assign for such amazing behaviour. let us put innocence and guilt in the scale together, and observe to which side the prisoner's actions are most applicable. innocence, celestial virgin, always has her guard about her; she dares look the frowns, the resentments, and the persecutions of the world in the face; is able to stand the test of the strictest inquiry; and the more we behold her, still the more shall we be in love with her charms. but it is not so with guilt. the baneful fiend makes use of unjustifiable means to conceal her wicked designs and prevent discovery. artifice and cunning are her supporters, bribery and corruption the defenders of her cause; she flies before the face of law and justice, and shuns the probation of a candid and impartial inquiry. upon the whole matter, you, gentlemen, are to judge; and judge as favourably as you can for the prisoner. if this were not sufficient to convince us of the prisoner's guilt, i think the last transaction of all will leave not the least room to doubt. when in discourse with persons that came to her at the house where she had taken shelter, what but self-conviction could have drawn such expressions from her? in her discourse with mr. fisher about cranstoun you will find she declared she had letters and papers that would have hanged that villain; and, again, says, "my honour, mr. fisher, to that villain has brought me to destruction"; and, again, in her inquiry of mr. lane, what they would do with her, she bursts out into this bitter exclamation, "oh, that damned villain!" then after a short pause, "but why should i blame him? i am more to blame than he is, for i gave it him." how could she be to blame for giving it if she knew not what it was? and, as it is said, went yet farther, and declared, "that she knew the consequence." if she did know it, she must expect to suffer the consequence of it too. thus, gentlemen, have i endeavoured to lay before you some observations upon this transaction, and i hope you will think them not unworthy of your consideration. i trust i have said nothing that relates to the fact that is not in my instructions; should it be otherwise, i assure you it was not with design. and whatever is not supported by legal evidence you will totally disregard. if any other interpretation than what i have offered can be put upon these several transactions, and the circumstances attending them, i doubt not but you will always incline on the merciful side where there is room for so doing. we shall now proceed to call our evidence. the other gentlemen, of counsel for the king, were mr. hayes, mr. wares, and mr. ambler. the counsel for the prisoner were mr. ford, mr. morton, and mr. aston.[ ] evidence for the prosecution. [sidenote: dr. addington] dr. anthony addington[ ] examined--i attended mr. blandy in his last illness. when were you called to him the first time?--on saturday evening, august the th. in what condition did you find him?--he was in bed, and told me that, after drinking some gruel on monday night, august the th, he had perceived an extraordinary grittiness in his mouth, attended with a very painful burning and pricking in his tongue, throat, stomach, and bowels, and with sickness and gripings, which symptoms had been relieved by fits of vomiting and purging. were those fits owing to any physic he had taken or to the gruel?--not to any physic; they came on very soon after drinking the gruel. had he taken no physic that day?--no. did he make any further complaints?--he said that, after drinking more gruel on tuesday night, august the th, he had felt the grittiness in his mouth again, and that the burning and pricking in his tongue, throat, stomach, and bowels had returned with double violence, and had been aggravated by a prodigious swelling of his belly, and exquisite pains and prickings in every external as well as internal part of his body, which prickings he compared to an infinite number of needles darting into him all at once. how soon after drinking the gruel?--almost immediately. he told me likewise that at the same time he had had cold sweats, hiccup, extreme restlessness and anxiety, but that then, viz., on saturday night, august the th, having had a great many stools, and some bloody ones, he was pretty easy everywhere, except in his mouth, lips, nose, eyes, and fundament, and except some transient gripings in his bowels. i asked him to what he imputed those uneasy sensations in his mouth, lips, nose, and eyes? he said, to the fumes of something that he had taken in his gruel on monday night, august the th, and tuesday night, august the th. on inspection i found his tongue swelled and his throat slightly inflamed and excoriated. his lips, especially the upper one, were dry and rough, and had angry pimples on them. the inside of his nostrils was in the same condition. his eyes were a little bloodshot. besides these appearances, i observed that he had a low, trembling, intermitting pulse; a difficult, unequal respiration; a yellowish complexion; a difficulty in the utterance of his words; and an inability of swallowing even a teaspoonful of the thinnest liquor at a time. as i suspected that these appearances and symptoms were the effect of poison, i asked miss blandy whether mr. blandy had lately given offence to either of his servants or clients, or any other person? she answered, "that he was at peace with all the world, and that all the world was at peace with him." i then asked her whether he had ever been subject to complaints of this kind before? she said that he had often been subject to the colic and heartburn, and that she supposed this was only a fit of that sort, and would soon go off, as usual. i told mr. blandy that i asked these questions because i suspected that by some means or other he had taken poison. he replied, "it might be so," or in words to that effect; but miss blandy said, "it was impossible." on sunday morning, august the th, he seemed much relieved; his pulse, breath, complexion, and power of swallowing were greatly mended. he had had several stools in the night without any blood in them. the complaints which he had made of his mouth, lips, nose, and eyes were lessened; but he said the pain in his fundament continued, and that he still felt some pinchings in his bowels. on viewing his fundament, i found it almost surrounded with gleety excoriations and ulcers. about eight o'clock that morning i took my leave of him; but before i quitted his room miss blandy desired i would visit him again the next day. when i got downstairs one of the maids put a paper into my hands, which she said miss blandy had thrown into the kitchen fire. several holes were burnt in the paper, but not a letter of the superscription was effaced. the superscription was "the powder to clean the pebbles with." what is the maid's name that gave you that paper?--i cannot recollect which of the maids it was that gave it me. i opened the paper very carefully, and found in it a whiteish powder, like white arsenic in taste, but slightly discoloured by a little burnt paper mixed with it. i cannot swear this powder was arsenic, or any other poison, because the quantity was too small to make any experiment with that could be depended on. what do you really suspect it to be?--i really suspect it to be white arsenic. please to proceed, sir.--as soon as the maid had left me, mr. norton, the apothecary, produced a powder that, he said, had been found at the bottom of that mess of gruel, which, as was supposed, had poisoned mr. blandy. he gave me some of this powder, and i examined it at my leisure, and believed it to be white arsenic. on monday morning, august the th, i found mr. blandy much worse than i had left him the day before. his complexion was very bad, his pulse intermitted, and he breathed and swallowed with great difficulty. he complained more of his fundament than he had done before. his bowels were still in pain. i now desired that another physician might be called in, as i apprehended mr. blandy to be in the utmost danger, and that this affair might come before a court of judicature. dr. lewis was then sent for from oxford. i stayed with mr. blandy all this day. i asked him more than once whether he really thought he had taken poison? he answered each time that he believed he had. i asked him whether he thought he had taken poison often? he answered in the affirmative. his reasons for thinking so were because some of his teeth had decayed much faster than was natural, and because he had frequently for some months past, especially after his daughter had received a present of scotch pebbles from mr. cranstoun, been affected with very violent and unaccountable prickings and heats in his tongue and throat, and with almost intolerable burnings and pains in his stomach and bowels, which used to go off in vomitings and purgings. i asked him whom he suspected to be the giver of the poison? the tears stood in his eyes, yet he forced a smile, and said--"a poor love-sick girl--i forgive her--i always thought there was mischief in those cursed scotch pebbles." dr. lewis came about eight o'clock in the evening. before he came mr. blandy's complexion, pulse, breath, and faculty of swallowing were much better again; but he complained more of pain in his fundament. this evening miss blandy was confined to her chamber, a guard was placed over her, and her keys, papers, and all instruments wherewith she could hurt either herself or any other person were taken from her. how came that?--i proposed it to dr. lewis, and we both thought it proper, because we had great reason to suspect her as the author of mr. blandy's illness, and because this suspicion was not yet publicly known, and therefore no magistrate had dr. addington taken any notice of her. please to go on, dr. addington, with your account of mr. blandy. on tuesday morning, august the th, we found him worse again, his countenance, pulse, breath, and power of swallowing were extremely bad. he was excessively weak. his hands trembled. both they and his face were cold and clammy. the pain was entirely gone from his bowels, but not from his fundament. he was now and then a little delirious. he had frequently a short cough and a very extraordinary elevation of his chest in fetching his breath, on which occasions an ulcerous matter generally issued from his fundament. yet in his sensible intervals he was cheerful and jocose; he said, "he was like a person bit by a mad dog; for that he should be glad to drink, but could not swallow." about noon this day his speech faltered more and more. he was sometimes very restless, at others very sleepy. his face was quite ghastly. this night was a terrible one. on wednesday morning, august the th, he recovered his senses for an hour or more. he told me he would make his will in two or three days; but he soon grew delirious again, and sinking every moment, died about two o'clock in the afternoon. upon the whole, did you then think, from the symptoms you have described and the observations you made, that mr. blandy died by poison?--indeed i did. and is it your present opinion?--it is; and i have never had the least occasion to alter it. his case was so particular, that he had not a symptom of any consequence but what other persons have had who have taken white arsenic, and after death had no appearance in his body but what other persons have had who have been destroyed by white arsenic.[ ] when was his body opened?--on thursday, in the afternoon, august the th. what appeared on opening it?--i committed the appearances to writing, and should be glad to read them, if the court will give me leave. [then the doctor, on leave given by the court, read as follows:--] "mr. blandy's back and the hinder part of his arms, thighs, and legs were livid. that fat which lay on the muscles of his belly was of a loose texture, inclining to a state of fluidity. the muscles of his belly were very pale and flaccid. the cawl was yellower than is natural, and the side next the stomach and intestines looked brownish. the heart was variegated with purple spots. there was no water in the pericardium. the lungs resembled bladders half filled with air, and blotted in some places with pale, but in most with black, ink. the liver and spleen were much discoloured; the former looked as if it had been boiled, but that part of it which covered the stomach was particularly dark. a stone was found in the gall bladder. the bile was very fluid and of a dirty yellow colour, inclining to red. the kidneys were all over stained with livid spots. the stomach and bowels were inflated, and appeared before any incision was made into them as if they had been pinched, and extravasated blood had stagnated between their membranes. they contained nothing, as far as we examined, but a slimy bloody froth. their coats were remarkably smooth, thin, and flabby. the wrinkles of the stomach were totally obliterated. the internal coat of the stomach and duodenum, especially about the orifices of the former, was prodigiously inflamed and excoriated. the redness of the white of the eye in a violent inflammation of that part, or rather the white of the eye just brushed and bleeding with the beards of barley, may serve to give some idea how this coat had been wounded. there was no schirrus in any gland of the abdomen, no adhesion of the lungs to the pleura, nor indeed the least trace of a natural decay in any part whatever." [sidenote: dr. lewis] dr. william lewis[ ] examined--did you, dr. lewis, observe that mr. blandy had the symptoms which dr. addington has mentioned?--i did. did you observe that there were the same appearances on opening his body which dr. addington has described?--i observed and remember them all, except the spots on his heart. is it your real opinion that those symptoms and those appearances were owing to poison?--yes. and that he died of poison?--absolutely. [sidenote: dr. addington] dr. addington, cross-examined--did you first intimate to mr. blandy, or he to you, that he had been poisoned?--he first intimated it to me. did you ask him whether he was certain that he had been poisoned by the gruel that he took on monday night, august the th, and on tuesday night, august the th?--i do not recollect that i did. are you sure that he said he was disordered after drinking the gruel on monday night, the th of august?--yes. did you over ask him why he drank more gruel on tuesday night, august the th?--i believe i did not. when did you make experiments on the powder delivered to you by mr. norton?--i made some the next day; but many more some time afterwards. how long afterwards?--i cannot just say; it might be a month or more. how often had you powder given you?--twice. did you make experiments with both parcels?--yes; but i gave the greatest part of the first to mr. king, an experienced chemist in reading, and desired that he would examine it, which he did, and he told me that it was white arsenic. the second parcel was used in trials made by myself. who had the second parcel in keeping till you tried it?--i had it, and kept it either in my pocket or under lock and key. did you never show it to anybody?--yes, to several persons; but trusted nobody with it out of my sight. why do you believe it to be white arsenic?--for the following reasons:--( ) this powder has a milky whiteness; so has white arsenic. ( ) this is gritty and almost insipid; so is white arsenic. ( ) part of it swims on the surface of cold water, like a pale sulphurous film, but the greatest part sinks to the bottom, and remains there undissolved; the same is true of white arsenic. ( ) this thrown on red-hot iron does not flame, but rises entirely in thick white fumes, which have the stench of garlic, and cover cold iron held just over them with white flowers; white arsenic does the same. ( ) i boiled grains of this powder in ounces of clean water, and then, passing the decoction through a filter, divided it into five equal parts, which were put into as many glasses--into one glass i poured a few drops of spirit of sal ammoniac, into another some of the lixivium of tartar, into the third some strong spirit of vitriol, into the fourth some spirit of salt, and into the last some syrup of violets. the spirit of sal ammoniac threw down a few particles of pale sediment. the lixivium of tartar gave a white cloud, which hung a little above the middle of the glass. the spirits of vitriol and salt made a considerable precipitation of lightish coloured substance, which, in the former hardened into glittering crystals, sticking to the sides and bottom of the glass. syrup of violets produced a beautiful pale green tincture. having washed the sauce pan, funnel, and glasses used in the foregoing experiments very clean, and provided a fresh filter, i boiled grains of white arsenic, bought of mr. wilcock, druggist in reading, in ounces of clean water, and, filtering and dividing it into five equal parts, proceeded with them just as i had done with the former decoctions. there was an exact similitude between the experiments made on the two decoctions. they corresponded so nicely in each trial that i declare i never saw any two things in nature more alike the decoction made with the powder found in mr. blandy's gruel and that made with white arsenic. from these experiments, and others which i am ready to produce if desired, i believe that powder to be white arsenic. did any person make these experiments with you?--no, but mr. wilcock, the druggist, was present while i made them; and he weighed both the powder and the white arsenic. when did mr. blandy first take medicines by your order?--as soon as he could swallow, on saturday night, the th august. before that time he was under the care of mr. norton. [sidenote: b. norton] benjamin norton, examined--i live at henley; i remember being sent for to mrs. mounteney's, in henley, on thursday, the th august, in order to show me the powder. there was with her susan gunnell, the servant maid. she brought in a pan. i looked at it and endeavoured to take it out that i might give a better account of it, for as it lay it was not possible to see what it was; then i laid it on white paper and delivered it to mrs. mounteney to take care of till it dried. she kept it till sunday morning, then i had it to show to dr. addington. i saw the doctor try it once at my house upon a red-hot poker, upon which i did imagine it was of the arsenic kind. did you attend the deceased while he was ill?--i did. i went on the th of august. he told me he was ill, as he imagined, of a fit of the colic. he complained of a violent pain in his stomach, attended with great reachings, and swelled, and a great purging. i carried him physic, which he took on the wednesday morning; he was then better. on the thursday morning, as i was going, i met the maid. she told me he was not up, so i went about twelve. he was then with a client in the study. he told me the physic had done him a great deal of service, and desired more. i sent him some to take on friday morning; i was not with him after thursday.[ ] had you used to attend him?--i had for several years. the last illness he had before was in july, . i used to attend him. did you ever hear miss blandy talk of music?--i did. she said she had heard it in the house, and she feared something would happen in the family. she did not say anything particular, because i made very light of it. did she say anything of apparitions?--she said mr. cranstoun saw her father's apparition one night. how long before his death was it that she talked about music?--it might be about three or four months before. was the powder you delivered to dr. addington the self-same powder you received of mrs. mounteney?--it was the very same; it had not been out of my custody. should you know it again?--i have some of the same now in my pocket. [he produces a paper sealed up with the earl of macclesfield's and lord cadogan's seals upon it.] this is some of the same that i delivered to dr. addington. cross-examined--who sent for you to the house?--i cannot tell that. when you came, did you see miss blandy?--i did. she and mr. blandy were both together. what conversation had you then?--i asked mr. blandy whether or no he had eaten anything that he thought disagreed with him? miss blandy made answer, and said her papa had had nothing that she knew of except some peas on the saturday night before. did you hear anything of water gruel?--i knew nothing of that till it was brought to me. had you any suspicion of poison then?--i had not, nor mr. blandy had not mentioned anything of being poisoned by having taken water gruel. what did miss blandy say to you?--she desired me to be careful of her father in his illness. did she show any dislike to his having physic?--no, none at all. she desired, when i saw any danger, i would let her know it, that she might have the advice of a physician. when was this?--this was on saturday, the th. when he grew worse, did she advise a physician might be called in?--yes, she did, after i said he was worse. she then begged that dr. addington might be sent for. mr. blandy was for deferring it till next day, but when i came down she asked if i thought him in danger. i said, "he is," then she said, "though he seems to be against it, i will send for a doctor directly," and sent away a man unknown to him. was he for delaying?--he was, till the next morning. how had she behaved to him in any other illness of her father's?--i never saw but at such times she behaved with true affection and regard. had she used to be much with him?--she used to be backwards and forwards with him in the room. did you give any intimation to miss blandy after the powder was tried?--i did not, but went up to acquaint her uncle. he was so affected he could not come down to apprise mr. blandy of it. when did she first know that you knew of it?--i never knew she knew of it till the monday. how came you to suspect that at the bottom of the pan to be poison?--i found it very gritty, and had no smell. when i went down and saw the old washerwoman, that she had tasted of the water gruel and was affected with the same symptoms as mr. blandy, i then suspected he was poisoned, and said i was afraid mr. blandy had had foul play; but i did not tell either him or miss blandy so, because i found by the maid that miss blandy was suspected. whom did you suspect might do it?--i had suspicion it was miss blandy. king's counsel--when was dr. addington sent for?--on the saturday night. [sidenote: mrs. mary mounteney] mrs. mary mounteney[ ] examined--susan gunnell brought a pan to my house on the th of august with water gruel in it and powder at the bottom, and desired me to look at it. i sent for mr. norton. he took the powder out on a piece of white paper which i gave him. he delivered the same powder to me, and i took care of it and locked it up. cross-examined--did you ever see any behaviour of miss blandy otherwise than that of an affectionate daughter?--i never did. she was always dutiful to her father, as far as i saw, when her father was present. to whom did you first mention that this powder was put into the paper?--to the best of my remembrance, i never made mention of it to anybody till mr. norton fetched it away, which was on the th of august, the sunday morning after, to be shown to dr. addington. between the time of its being brought to your house and the time it was fetched away, were you ever at mr. blandy's house?--no, i was not in that time, but was there on sunday in the afternoon. had you not showed it at any other place during that time?--i had not, sir. did you, on the sunday, in the afternoon, mention it to mr. or miss blandy?--no, not to either of them. [sidenote: s. gunnell] susannah gunnell, examined--i carried the water gruel in a pan to mrs. mounteney's house. whose use was it made for?--it was made for mr. blandy's use, on the sunday seven-night before his death. who made it?--i made it. where did you put it after you had made it?--i put it into the common pantry, where all the family used to go. did you observe any particular person busy about there afterwards?--no, nobody; miss blandy told me on the monday she had been in the pantry (i did not see her) stirring her father's water gruel, and eating the oatmeal out of the bottom of it. what time of the monday was this?--this was some time about the middle of the day. did mr. blandy take any of that water gruel?--i gave him a half-pint mug of it on monday evening for him to take before he went to bed. did you observe anybody meddle with that half-pint mug afterwards?--i saw miss blandy take the teaspoon that was in the mug and stir the water gruel, and after put her finger to the spoon, and then rubbed her fingers. did mr. blandy drink any of that water gruel?--mr. blandy drank some of it, and on the tuesday morning, when he came downstairs, he did not come through the kitchen as usual, but went the back way into his study. did you see him come down?--i did not. when was the first time you saw him that day?--it was betwixt nine and ten. miss blandy and he were together; he was not well, and going to lie down on the bed. did you see him in the evening?--in the evening robert harman came to me as i was coming downstairs and told me i must warm some water gruel, for my master was in haste for supper. did you warm some?--i warmed some of that out of the pan, of which he had some the night before, and miss blandy carried it to him into the parlour. did he drink it?--i believe he did; there seemed to be about half of it left the next morning. how did he seem to be after?--i met him soon after he had ate the water gruel going upstairs to bed. i lighted him up. as soon as he was got into the room he called for a basin to reach; he seemed to be very sick by his reaching a considerable time. how was he next morning?--about six o'clock i went up the next morning to carry him his physic. he said he had had a pretty good night, and was much better. had he reached much overnight?--he had, for the basin was half-full, which i left clean overnight. was any order given you to give him any more water gruel?--on the wednesday miss blandy came into the kitchen and said, "susan, as your master has taken physic, he may want more water gruel, and, as there is some in the house, you need not make fresh, as you are ironing." i told her it was stale, if there was enough, and it would not hinder much to make fresh; so i made fresh accordingly, and i went into the pantry to put some in for my master's dinner. then i brought out the pan (the evening before i thought it had an odd taste), so i was willing to taste it again to see if i was mistaken or not. i put it to my mouth and drank some, and, taking it from my mouth, i observed some whiteness at the bottom. what did you do upon that?--i went immediately to the kitchen and told betty binfield there was a white settlement, and i did not remember i ever had seen oatmeal so white before. betty said, "let me see it." i carried it to her. she said, "what oatmeal is this? i think it looks as white as flour." we both took the pan and turned it about, and strictly observed it, and concluded it could be nothing but oatmeal. i then took it out of doors into the light and saw it plainer; then i put my finger to it and found it gritty at the bottom of the pan. i then recollected i had heard say poison was white and gritty, which made me afraid it was poison. what did you do with the pan?--i carried it back again and set it down on the dresser in the kitchen; it stood there a short time, then i locked it up in the closet, and on the thursday morning carried it to mrs. mounteney, and mr. norton came there and saw it. do you remember miss blandy saying anything to you about eating her papa's water gruel?--about six weeks before his death i went into the parlour. miss blandy said, "susan, what is the matter with you? you do not look well." i said, "i do not know what is the matter; i am not well, but i do not know what is the matter." she said, "what have you ate or drank?" upon which i said, "nothing more than the rest of the family." she said, "susan, have you eaten any water gruel? for i am told water gruel hurts me, and it may hurt you." i said, "it cannot affect me, madam, for i have not eaten any." what was it betty binfield[ ] said to you about water gruel?--betty binfield said miss blandy asked if i had eaten any of her papa's water gruel, saying, if i did, i might do for myself, a person of my age. what time was this?--i cannot say whether it was just after or just before the time she had spoken to me herself. on the wednesday morning, as i was coming downstairs from giving my master his physic, i met elizabeth binfield with the water gruel in a basin which he had left. i said to the charwoman, ann emmet, "dame, you used to be fond of water gruel; here is a very fine mess my master left last night, and i believe it will do you good." the woman soon sat down on a bench in the kitchen and ate some of it, i cannot say all. [illustration: miss mary blandy (_from an engraving by b. cole, after a drawing for which she sat in oxford castle_.)] how was she afterwards?--she said the house smelt of physic, and everything tasted of physic; she went out, i believe into the wash-house, to reach, before she could finish it. did you follow her?--no, i did not; but about twenty minutes or half an hour after that i went to the necessary house and found her there vomiting and reaching, and, as she said, purging. how long did she abide there?--she was there an hour and a half, during which time i went divers times to her. at first i carried her some surfeit water; she then desired to have some fair water. the next time i went to see how she did she said she was no better. i desired her to come indoors, hoping she would be better by the fire. she said she was not able to come in. i said i would lead her in. i did, and set her down in a chair by the fire. she was vomiting and reaching continually. she sat there about half an hour, or something more, during which time she grew much worse, and i thought her to be in a fit or seized with death. did you acquaint miss blandy with the illness and symptoms of this poor woman?--i told miss blandy when i went into the room to dress her, about nine o'clock, that dame (the name we used to call her by) had been very ill that morning; that she had complained that the smell of her master's physic had made her sick; and that she had eaten nothing but a little of her master's water gruel which he had left last night, which could not hurt her. what did she say to that?--she said she was very glad she was not below stairs, for she would have been shocked to have seen her poor dame so ill. as you have lived servant in the house, how did you observe miss blandy behave towards her father, and in what manner did she use to talk of him, three or four months before his death?--sometimes she would talk very affectionately, and sometimes but middling. what do you mean by "middling"?--sometimes she would say he was an old villain for using an only child in such a manner. did she wish him to live?--sometimes she wished for him long life, sometimes for his death. when she wished for his death, in what manner did she express herself?--she often said she was very awkward, and that if he was dead she would go to scotland and live with lady cranstoun. did she ever say how long she thought her father might live?--sometimes she would say, for his constitution, he might live these twenty years; sometimes she would say he looked ill and poorly. do you remember when dr. addington was sent for on the saturday?--i do. had miss blandy used to go into her father's room after that time?--she did as often as she pleased till sunday night; then mr. norton took miss blandy downstairs and desired me not to let anybody go into the room except myself to wait on him. did she come in afterwards?--she came into the room on monday morning, soon after mr. norton came in, or with him. i went in about ten o'clock again. what conversation passed between miss blandy and her father?--she fell down on her knees, and said to him, "banish me, or send me to any remote part of the world; do what you please, so you forgive me; and as to mr. cranstoun, i will never see him, speak to him, nor write to him more so long as i live, so you will forgive me." what answer did he make?--he said, "i forgive thee, my dear, and i hope god will forgive thee; but thee shouldst have considered better than to have attempted anything against thy father; thee shouldst have considered i was thy own father." what said she to this?--she answered, "sir, as for your illness, i am entirely innocent." i said, "madam, i believe you must not say you are entirely innocent, for the powder that was taken out of the water gruel, and the paper of powder that was taken out of the fire, are now in such hands that they must be publicly produced." i told her i believed i had one dose prepared for my master in a dish of tea about six weeks ago. did you tell her this before her father?--i did. what answer did she make?--she said, "i have put no powder into tea. i have put powder into water gruel, and if you are injured i am entirely innocent, for it was given me with another intent." what said mr. blandy to this?--my master turned himself in his bed and said to her, "oh, such a villain! come to my house, ate of the best, and drank of the best that my house could afford, to take away my life and ruin my daughter." what else passed?--he said, "oh, my dear! thee must hate that man, thee must hate the ground he treads on, thee canst not help it." the daughter said "oh, sir, your tenderness towards me is like a sword to my heart; every word you say is like swords piercing my heart--much worse than if you were to be ever so angry. i must down on my knees and beg you will not curse me." what said the father?--he said, "i curse thee! my dear, how couldst thou think i could curse thee? no, i bless thee, and hope god will bless thee and amend thy life;" and said further, "do, my dear, go out of my room, say no more, lest thou shouldst say anything to thy own prejudice; go to thy uncle stevens, take him for thy friend; poor man! i am sorry for him." upon this she directly went out of the room. give an account of the paper you mentioned to her, how it was found?--on the saturday before my master died i was in the kitchen. miss blandy had wrote a direction on a letter to go to her uncle stevens. going to the fire to dry it, i saw her put a paper into the fire, or two papers, i cannot say whether. i went to the fire and saw her stir it down with a stick. elizabeth binfield then put on fresh coals, which i believe kept the paper from being consumed. soon after miss blandy had put it in she left the kitchen; i said to elizabeth binfield, "betty, miss blandy has been burning something"; she asked, "where?" i pointed to the grate and said, "at that corner"; upon which betty binfield moved a coal and took from thence a paper. i stood by and saw her. she gave it into my hand; it was a small piece of paper, with some writing on it, folded up about inches long. the writing was, "the powder to clean the pebbles," to the best of my remembrance. did you read it?--i did not, elizabeth binfield read it to me. [produced in court, part of it burnt, scaled up with the earl of macclesfield and lord cadogan's seals.] this is the paper, i believe, by the look of it; but i did not see it unfolded. i delivered it into elizabeth binfield's hand on saturday night between eleven and twelve o'clock. from the time it was taken out of the fire it had not been out of my pocket, or anything done to it, from that time till i gave it her. i went into my master's room about seven o'clock in the morning to carry him something to drink. when he had drank it, i said, "i have something to say to you concerning your health and concerning your family; i must beg you will not put yourself in a passion, but hear me what i have to say." then i told him, "i believe, sir, you have got something in your water gruel that has done you some injury, and i believe miss blandy put it in, by her coming into the washhouse on monday and saying she had been stirring her papa's water gruel and eating the oatmeal out from the bottom." he said, "i find i have something not right; my head is not right as it used to be, nor has been for some time." i had before told him i had found the powder in the gruel. he said, "dost thou know anything of this powder? didst thee ever see any of it?" i said, "no, sir, i never saw any but what i saw in the water gruel." he said, "dost know where she had this powder, nor canst not thee guess?" i said, "i cannot tell, except she had it of mr. cranstoun." my reason for suspecting that was, miss blandy had letters oftener than usual. my master said, "and, now thee mention'st it, i remember when he was at my house he mentioned a particular poison that they had in their country," saying, "oh, that villain! that ever he came to my house!" i told him likewise that i had showed the powder to mr. norton; he asked what mr. norton said to it; i told him mr. norton could not say what it was, as it was wet, but said, "let it be what it will, it ought not to be there"; and said he was fearful there was foul play somewhere. my master said, "what, norton not know! that is strange, and so much used to drugs." then i told him mr. norton thought proper he should search her pockets, and take away her keys and papers. he said, "i cannot do it, i cannot shock her so much; canst not thee, when thou goest into her room, take out a letter or two, that she may think she dropped them by chance?" i told him, "i had no right to do it; she is your daughter, and you have a right to do it, and nobody else." he said, "i never in all my life read a letter that came to my daughter from any person." he desired, if possible, if i could meet with any powder anywhere that i would secure it. do you remember when ann emmet was sick (the charwoman)?--i do, but cannot say how long or how little a time before this; i remember she was ill some time before my master's death. what did the prisoner order the old woman to eat at that time?--she sent her some sack whey and some broth, i believe, to the value of a quart or three pints at twice, about once a day, or every other day, for four or five days. have you been ill from what you ate yourself?--i was ill after drinking a dish of tea one sunday morning, which i thought was not well relished, and i believed somebody had been taking salts in the cup before. who was it poured out for?--i believe it was poured out for my master. why do you believe that?--because he used to drink in a different dish from the rest of the family, and it was out of his dish. when was this?--this was about six weeks and three days before his death. how did you find yourself after drinking it?--i found no ill-effects till after dinner; i then had a hardness in my stomach, and apprehended it was from eating plentifully of beans for dinner. what symptoms had you afterwards?--my stomach seemed to have something in it that could not digest, and i had remarkable trembling for three days, and after that for three mornings was seized with a reaching. have you since that time been ill from what you ate or drank?--i tasted the water gruel twice--once on the tuesday evening when i was mixing it for my master, and on wednesday, when i was going to pour it away, i put the pan to my mouth and drank a little of it. how did you find yourself after that?--i did not find any remarkable disorder till the wednesday morning about two o'clock, before my master's death; then i was seemingly seized with convulsions. my throat was very troublesome for five or six weeks after, and seemed a little soreish and a little swelled. i continued very ill for three weeks and upwards after my master's death, which was on the wednesday. i went to bed sick at two that morning, and applied to dr. addington. do you remember anything besides letters coming from mr. cranstoun?--i remember she had once a large box of table linen and some scotch pebbles in it; she said they came from him. what time was this?--this was early in the spring, before my master's death. had she more than one box sent to her?--she had a small box sent afterwards of scotch pebbles; that might be about three months before his death, or less, i cannot say. did she use to show the pebbles to anybody?--she used to show them to any person of her acquaintance; but i never heard of any powder to clean them. cross-examined--for a year before the th of august last had anything ailed your master so as to call in the apothecary?--about a year before he had had a violent cold. was he, or was he not, in good health for a year before?--he was frequently complaining of the gravel and heartburn, which he was subject to for years. did he make any other complaints?--he used to have little fits of the gout. was there any other complaint for seven, eight, nine, or ten years?--nothing particular, but that of the heartburn, which i cannot tell whether i ever heard him complain of before or not. can you take upon you to say that he made any particular complaint of the heartburn more than he had done at any other time?--i cannot say positively, because i have not continued these things in my memory. he ordered me to give him some dry oatmeal and water for the heartburn. is that good for the heartburn?--i have been told it is very good for it. how was her behaviour to her father?--her general behaviour was dutiful, except upon any passion or a hasty word from her father. when did she call her father "old villain"?--she would use expressions of that kind when she was in a passion. upon what account?--for using her ill. king's counsel--were these expressions made use of before his face or behind his back?--i have heard her before his face and behind his back. prisoner's counsel--when have you heard it?--i believe in the last twelve months, but cannot be sure. king's counsel--recollect on what occasion?--it has been, i believe, on little passions on both sides, and that generally from trifles. prisoner's counsel--when did you first communicate your suspicion to mr. blandy about his being poisoned?--on the saturday morning before his death, from what i saw on the wednesday before. why did you keep this suspicion of yours from wednesday to saturday?--the reason i did not tell my suspicions to mr. blandy sooner than saturday was because i stayed for mr. stevens, the prisoner's uncle, who did not come till friday night; i told him then, and he desired me to tell mr. blandy of it. did you ever say anything of it to miss blandy?--no, i did not. pray, what conversation passed between her father and her down upon her knees, &c.?--she said, "sir, how do you do?" he said, "i am very ill." was anything said about mr. cranstoun's addresses to her?--yes, there was. that conversation was occasioned by a message that mr. blandy had sent to his daughter by me on monday morning. what was that message?--that he was ready to forgive her if she would but endeavour to bring that villain to justice. did she say with what intent the powder was given to her?--she said it was given her with another intent. did she say upon what intent?--she did not say that. he did not ask that. was not that explained?--it was no ways explained. did he treat her as if she herself was innocent?--he did, sir. then all he said afterwards was as thinking his daughter very innocent?--it was, sir. as to the ruin of his daughter, did he think it was entirely owing to cranstoun?--mr. blandy said he believed his daughter entirely innocent of what had happened. by what he said to you, do you think that the father thought his daughter was imposed upon by cranstoun when he used that expression, "she must hate the man," &c.?--i do think so; he said, "where is polly?" i answered, "in her room." he said, "poor, unfortunate girl! that ever she should be imposed upon and led away by such a villain to do such a thing!" do you imagine, from the whole conversation that passed between her father and her, that she was entirely innocent of the fact of the powder being given?--i do not think so; she said she was innocent. what was your opinion? did the father think her wholly unacquainted with the effect of the powder?--i believe he thought so; that is as much as i can say. when you told miss blandy that the washerwoman was extremely ill, having ate some water gruel, was anything more said with relation to the father's having ate some of the same water gruel before?--i don't remember there was a word said about the father's having ate any of it. during the time of his illness was not miss blandy's behaviour to her father with as much care and tenderness as any daughter could show?--she seemed to direct everything as she could have done for herself, or any other person that was sick. do you know that she was guilty of any neglect in this respect?--no, i do not, sir. king's counsel--what did he mean when he said, "poor, unfortunate girl! that ever she should be imposed upon and led away by such a villain to do such a thing!" what do you imagine he meant by such a thing?--by giving him that which she did not know what it was. court--when she told you that water gruel would serve for her father on the wednesday did she know that her father had been ill by taking water gruel on the monday and tuesday nights?--she knew he was ill, but i cannot tell whether she knew the cause of it; and knew that the charwoman was ill before she proposed my giving him the same gruel, but did not oppose my making fresh for any other reason than that it would hinder my ironing. [sidenote: e. binfield] elizabeth binfield, examined--i was a servant to mr. francis blandy at henley, and had been almost three years. when did you first discover his illness and hear him complain of unusual prickings in has stomach?--about a fortnight before he died. did you ever hear miss blandy talk of something in the house which she said presaged his death, or something like it?--i have often heard her talk of walkings and music in the house that she had heard. she said she thought it to be her mother, saying the music foretold her father's death. whom has she said so to?--she has told me so. how long ago?--for some time before her father's death; i believe for three-quarters of a year. how long did she continue talking in this manner?--she did till his death. i have often heard her say he would die before october. what reasons did she give for that?--by the music, saying she had been informed that music foretells deaths within a twelvemonth. who did she say had informed her so?--she said mr. cranstoun had been to some famous woman who had informed him so, and named one mrs. morgan, who lived either in scotland or london, i cannot say which. did she express herself glad or sorry?--glad, for that then she should soon be released from all her fatigues, and soon be happy. did she talk of the state of health in which he was?--sometimes she has said he has been very well, sometimes ill. i remember i heard her say that my master complained of a ball of fire in his guts. i believe it was before the monday he ate the water gruel. i cannot particularly say. i believe a fortnight before he died, then she said, mr. cranstoun had told her of that famous woman's opinion about music. do you remember the first time one ann emmet was taken ill?--it was about a month or six weeks before. do you know what miss blandy ordered her in that illness?--i do. she ordered her some white wine whey, and broth several times. i made it two or three times, two quarts at a time. do you remember a paper being taken out of the fire?--i do. it was on the saturday before my master died. i took it out myself. should you know it again if you see it?--i believe i should. (she is shown a paper.) i really believe this is it, which i took out of the fire and delivered it to susan gunnell, after which i had it again from her, and i delivered it to dr. addington and mr. norton. do you remember miss blandy's saying anything about susan gunnel's eating the water gruel?--i do. when susan was ill she asked me how susan did. i said, "very ill." said she, "do you remember her ever drinking her master's water gruel?" i said, "not as i know of." she said, "if she does she may do for herself, may i tell you." did she bid you tell susan so?--she did not bid me tell susan, but i did tell her. what time was this?--it might be about a month or six weeks before mr. blandy's death. do you remember any expressions she made use of about her father?--i heard her say, "who would grudge to send an old father to hell for £ , ?" exactly them words. when was this?--it was about a month before his death, or it may be more; i cannot justly tell. how was this conversation introduced?--she was speaking of young girls being kept out of their fortunes. who was with you at this time?--it was to me, and nobody else. have you heard her abuse him with bad language?--i have heard her curse him, call him rascal and villain. what was she so angry with her father about?--mr. cranstoun was at our house about three-quarters of a year before mr. blandy's death. he came in august, , and stayed there till near christmas. it was not agreeable to my master. we used to think by his temper that he did not approve of his being so much with his daughter, but i do not believe he debarred his daughter from keeping his company. did you ever hear him say anything to her of his having been once like to be poisoned?--i was in the kitchen when my master came in to be shaved. i stayed there till he went out again. miss blandy was there, and he said that once he had like to have been poisoned. when was it that he said so?--it was on the th of august, saying he was once at the coffee-house or the lion, and he and two other gentlemen had like to have been poisoned by what they had drank. miss blandy said, "sir, i remember it very well." she said it was at one of those places, and he said no, it was the other. he said, "one of the gentlemen died immediately, the other is dead now, and i have survived them both; but it is my fortune to be poisoned at last." he looked very hard at her during the time he was talking. what did he say was put into the wine?--i remember he said it was white arsenic. when he looked hard at her how did she look?--she looked in great confusion and all in a tremble. did you sit up with miss blandy the night after her father died?--i did till three o'clock. she went to bed about one. she said to me, "betty, will you go away with me? if you will go to the lion or the bell and hire a post-chaise i will give you fifteen guineas when you get into it and ten guineas more when we came to london." i said, "where will you go then? into the north?" she said, "i shall go into the west of england." i said, "shall you go by sea?" she said, "i believe some part of the way." i said, "i will not go." then she burst into laughter, and said, "i was only in a joke. did you think i was in earnest?" "yes," said i. "no," said she, "i was only joking." did you ever hear miss blandy tell dr. addington that she had given your master some of that powder?--i heard miss blandy tell the doctor she had given my master some of that powder before in a dish of tea, which, she said, he did not drink, and she threw it into the street out of the window, fearing she should be discovered, and filled the cup again, and that susan gunnell drank it, and was ill for a week after. when was this?--this was on the monday before my master died. do you remember what happened on monday, the th of august?--yes. on that day i and two washerwomen were in the wash-house. miss blandy came in, and said, "betty, i have been in the pantry eating some of the oatmeal out of your master's water gruel." i took no notice of it, but the same day, in the afternoon, i went into the pantry, and miss blandy followed me, and took a spoon and stirred the water gruel, and, taking some up in the spoon, put it between her fingers and rubbed it. what was it in?--it was in a pan. when my master was taken ill on the tuesday in the afternoon miss blandy came into the kitchen, and said, "betty, if one thing should happen, will you go with me to scotland?" i said, "madam, i do not know." "what," says she, "you are unwilling to leave your friends?" said i, "if i should go there, and not like it, it will be expensive travelling back again." did she say, "if one thing should happen"? what thing?--i took no further notice of it then, but those were the words. on the monday morning before he died she said to me, "betty, go up to your master and give my duty to him, and tell him i beg to speak one word with him." i did. she went up. i met her when she came out of the room from him. she clasped me round the neck, and burst out a-crying, and said, "susan and you are the two honestest servants in the world; you ought to be imaged in gold for your honesty; half my fortune will not make you amends for your honesty to my father." cross-examined--had mr. blandy at any time, and when, previous to the th of august been ill?--about a twelvemonth before he had been ill some time, but i cannot tell how long. what was his illness?--he had a great cold. did he take any physic?--i believe he did once or twice. can you tell the time?--i believe it was the latter end of july or beginning of august. who made the whey and broth that were sent to the washerwoman?--my fellow-servant made the whey; i made the broth. was she a kind mistress to the washerwoman?--she was. she had a greater regard for her than any other woman that came about the house. about this music, who did she say heard it?--she mostly mentioned herself hearing that. was this talk when cranstoun was there?--i heard her talk so when he was there and in his absence. was it when she was in an angry temper only that she used those words to her father?--i have heard her in the best of times curse her father. was susan gunnell very ill after drinking that tea?--she was, and continued so for a week. king's counsel--was it at the time susan was ill from drinking of the tea that miss blandy asked you about her taking the gruel and said it would do for her? and did she say anything else?--miss blandy said she poured it out for my master, but he went to church and left it. prisoner's counsel--have you had any ill-will against her?--i always told her i wished her very well. did you ever say, "damn her for a black bitch; i should be glad to see her go up the ladder and be hanged"?--no, sir, i never did in my life. king's counsel--did you and the rest of the family observe that mr. blandy's looks were as well the last six months as before?--miss blandy has said to me, "don't you think my father looks faint?" sometimes i have said, "he is," sometimes not. i never observed any alteration at all. [here dr. addington is appealed to by the counsel for the prisoner.] prisoner's counsel--do you, dr. addington, remember miss blandy telling you on monday night, the th august, that she had on a sunday morning, about six weeks before, when her father was absent from the parlour, mixed a powder with his tea, and that susan gunnell had drank that tea?--i remember her telling me that monday night that she had on a sunday morning, about six weeks before, when her father was absent from the parlour, mixed a powder with his tea, but do not remember her saying that susan gunnell had drank that tea. i have several times heard susan gunnell say that she was sure she had been poisoned by drinking tea out of mr. blandy's cup that sunday morning. did not miss blandy declare to you that she had always thought the powder innocent?--yes. did she not always declare the same?--yes. [the king's counsel then interposed, and said that he had not intended to mention what had passed in discourse between the prisoner and dr. addington; but that now, as her own counsel had been pleased to call for part of it, he desired the whole might be laid before the court.] [sidenote: dr. addington] dr. addington--on monday night, the th august, after miss blandy had been secured, and her papers, keys, &c., taken from her, she threw herself on the bed and groaned, then raised herself and wrung her hands, and said that it was impossible for any words to describe the horrors and agonies in her breast; that mr. cranstoun had ruined her; that she had ever, till now, believed him a man of the strictest honour; that she had mixed a powder with the gruel, which her father had drank on the foregoing monday and tuesday nights; that she was the cause of his death, and that she desired life for no end but to go through a painful penance for her sin. she protested at the same time that she had never mixed the powder with anything else that he had swallowed, and that she did not know it to be poison till she had seen its effects. she said that she had received the powder from mr. cranstoun with a present of scotch pebbles; that he had written on the paper that held it, "the powder to clean the pebbles with"; that he had assured her it was harmless; that he had often taken it himself; that if she would give her father some of it now and then, a little and a little at a time, in any liquid, it would make him kind to him and her; that accordingly, about six weeks before, at breakfast-time, her father being out of the room, she had put a little of it into his cup of tea, but that he never drank it; that, part of the powder swimming at top of the tea, and part sinking to the bottom, she had poured it out of the window and filled up the cup with fresh tea; that then she wrote to mr. cranstoun to let him know that she could not give it in tea without being discovered; and that in his answer he had advised her to give it in water gruel for the future, or in any other thickish fluid. i asked her whether she would endeavour to bring mr. cranstoun to justice. after a short pause she answered that she was fully conscious of her own guilt, and was unwilling to add guilt to guilt, which she thought she should do if she took any step to the prejudice of mr. cranstoun, whom she considered as her husband though the ceremony had not passed between them. king's counsel--was anything more said by the prisoner or you?--i asked her whether she had been so weak as to believe the powder that she had put into her father's tea and gruel so harmless as mr. cranstoun had represented it; why mr. cranstoun had called it a powder to clean pebbles if it was intended only to make mr. blandy kind; why she had not tried it on herself before she ventured to try it on her father; why she had flung it into the fire; why, if she had really thought it innocent, she had been fearful of a discovery when part of it swam on the top of the tea; why, when she had found it hurtful to her father, she had neglected so many days to call proper assistance to him; and why, when i was called at last, she had endeavoured to keep me in the dark and hide the true cause of his illness. what answers did she make to these questions?--i cannot justly say, but very well remember that they were not such as gave me any satisfaction. prisoner's counsel--she said then that she was entirely ignorant of the effects of the powder. she said that she did not know it to be poison till she had seen its effects. let me ask you, dr. addington, this single question, whether the horrors and agonies which miss blandy was in at this time were not, in your opinion, owing solely to a hearty concern for her father?--i beg, sir, that you will excuse my giving an answer to this question. it is not easy, you know, to form a true judgment of the heart, and i hope a witness need not deliver his opinion of it. i do not speak of the heart; you are only desired to say whether those agitations of body and mind which miss blandy showed at this time did not seem to you to arise entirely from a tender concern for her father?--since you oblige me, sir, to speak to this particular, i must say that all the agitation of body and mind which miss blandy showed at this time, or any other, when i was with her, seemed to me to arise more from the apprehension of unhappy consequences to herself than from a tender and hearty concern for her father. did you never, then, observe in her any evident tokens of grief for her father?--i never thought i did. did she never wish for his recovery?--often. did not you think that those wishes implied a concern for him?--i did not, because i had before told her that if he died soon she would inevitably be ruined. when did you tell her this?--on sunday morning, the th august, just before i left henley. did not she desire you that morning, before you quitted his room, to visit him again the next day?--yes. and was she not very solicitous that you should do him all the service in your power?--i cannot say that i discovered any solicitude in her on this score till monday night, the th august, after she was confined, and her keys and other things had been taken from her. king's counsel--did you, dr. addington, attend susan gunnell in her illness?--yes, sir, but i took no minutes of her case. did her symptoms agree with mr. blandy's?--they differed from his in some respects, but the most material were manifestly of the same kind with his, though in a much less degree. did you think them owing to poison?--yes. did you attend ann emmet?--yes, sir. to what cause did you ascribe her disorder?--to poison, for she told me that, on wednesday morning, the th august, very soon after drinking some gruel at mr. blandy's, she had been seized with prickings and burnings in her tongue, throat, and stomach, which had been followed by severe fits of vomiting and purging; and i observed that she had many other symptoms which agreed with mr. blandy's. did she say that she thought she had ever taken poison before?--on my telling her that i ascribed her complaints to poison, which she had taken in gruel at mr. blandy's on the th august, she said that, if she had been poisoned by drinking that gruel at mr. blandy's, she was sure that she had been poisoned there the haytime before by drinking something else. [sidenote: alice emmet] alice emmet, examined--my mother is now very ill, and cannot attend; she was charwoman at mr. blandy's in june last; she was taken very ill in the night with a vomiting and reaching, upwards and downwards. i went to miss blandy in the morning, by her desire, to see if she would send her something, as she wanted something to drink, saying she was very dry. miss said she would send something, which she did in about two hours. did you tell her what your mother had ate or drank?--no, i did not, only said my mother was very ill and very dry, and desired something to drink. [sidenote: r. littleton] robert littleton, examined--i was clerk to mr. blandy almost two years. the latter end of july last i went to my father's, in warwickshire, and returned again on the th august, and breakfasted with mr. blandy and his daughter the next morning, which was on a saturday. he was in great agony, and complained very much. he had a particular dish to drink his tea in. he tasted his tea, and did not drink it, saying it had a gritty, bad taste, and asked miss whether she had not put too much of the black stuff in it, meaning bohea tea. she answered it was as usual. he tasted it again and said it had a bad taste. she seemed to be in some sort of a tremor. he looked particular at her, and she looked very much confused and hurried, and went out of the room. soon after my master poured it out into the cat's basin, and set it to be filled again. after this, when he was not there, miss asked me what he did with the tea. i said he had not drunk it, but put it into the cat's basin in the window; then she looked a good deal confused and flurried. the next day mr. blandy, of kingston, came about half an hour after nine in the morning. they walked into the parlour, and left me to breakfast by myself in the kitchen. i went to church. when i returned, the prisoner desired me to walk with her cousin into the garden; she delivered a letter to me, and desired me to seal and direct it as usual, and put it into the post. had you ever directed any letter for her before?--i have, a great many. i used to direct her letters to mr. cranstoun. [he is shown a letter.] this is one. did you put it into the post?--i did not. i opened it, having just before heard mr. blandy was poisoned by his own daughter. i transcribed it, and took it to mr. norton, the apothecary at henley, and after that i showed it and read it to mr. blandy. what did he say?--he said very little. he smiled and said, "poor, love-sick girl! what won't a girl do for a man she loves?" (or to that effect). have you ever seen her write?--i have, very often. look at this letter; is it her own handwriting?--i cannot tell. it is written worse than she used to write, but it is the same she gave me. do you remember mr. cranstoun coming there in august, ?--i do. it was either the latter end of july or the beginning of august. did you hear any talk about music about that time?--after he was gone i heard the prisoner say she heard music in the house; this i heard her say very often, and that it denoted a death in the family. sometimes she said she believed it would be herself; at other times it might be her father, by reason of his being so much broken. i heard her say once she thought she heard her mother. did she say when that death would happen?--she said that death would happen before october, meaning the death of her father, seeming to me. have you heard her curse her father?--i have heard her several times, for a rogue, a villain, a toothless old dog. how long was this before her father's death?--i cannot justly tell that, but i have heard her a great many times within two months of his death, and a great while before. i used to tell her he was much broken latterly, and would not live long. she would say she thought so too, and that the music portended his death. cross-examined--when you breakfasted with them in the parlour who was there first?--she was. did you see the tea made?--no, sir. did you see it poured out?--no; but he desired me to taste the tea. i did mine, and said i fancied his mouth was out of taste. did not this hurry you say miss blandy was in arise from the displeasure of her father because the tea was not made to his mind?--i cannot say that, or what it was from. what became of that he threw into the cat's basin?--he left it there. [sidenote: r. harman] robert harman, examined--i was servant to mr. blandy at the time of his death. that night he died the prisoner asked me where i should live next. i said i did not know. she asked me to go with her. i asked her where she was going? she said it would be £ in my way, and no hurt to me if i would. i told her i did not choose to go. did she tell you to what place she was going?--she did not. did she want to go away at that time of night?--then, immediately. cross-examined--did she give any reason why she desired to go away?--no, she gave none. how long had you lived there?--a twelvemonth. what has been her general behaviour to her father during the time you were there?--she behaved very well, so far as ever i saw, and to all the family. did you ever hear her swear about her father?--no, i never did. [sidenote: r. fisher] richard fisher, examined--i was one of the jury on the coroner's inquest that sat on mr. blandy's body on thursday, th of august. as i was going up street to go to market i was told miss blandy was gone over the bridge. i went and found her at the sign of the angel, on the other side of the bridge. i told her i was very sorry for her misfortune, and asked her what she could think of herself to come from home, and if she would be glad to go home again? she said, "yes, but what must i do to get there for the mob?" i said i would endeavour to get a close post-chaise and carry her home. i went out through the mob and got one, and carried her home. she asked me whether she was to go to oxford that night or not. i said i believed not. when i came to her father's house i delivered her up to the constables. when we were upon the inquiry before the coroner a gentleman was asking for some letters which came in the time of mr. blandy's illness. i went to her uncle, stevens, to see for them. she then asked me again what the gentlemen intended to do with her, or how it would go. i said i was afraid very hard, unless she could produce some letters to bring mr. cranstoun to justice. she said, "dear mr. fisher, i am afraid i have burnt some that would have brought him to justice." she took a key out of her pocket, and said, "take this key and see if you can find such letters in such a drawer." there was one mrs. minn stood by. i desired her to go with the key, which she did. but no letters were found there. then miss blandy said, "my honour to him will prove my ruin." what did she mean by the word "him"?--mr. cranstoun--when she found there were no letters of consequence to be found. [sidenote: mrs. lane] mrs. lane, examined--i was with my husband at henley at the sign of the angel on the other side of the bridge. there was miss blandy. the first word i heard mr. lane, my husband, say was, if she was found guilty she would suffer according to law, upon which she stamped her foot upon the ground, and said, "o that damned villain!" then paused a little, and said "but why should i blame him, for i am more to blame than he, for i gave it him, and knew the consequence?" did she say i knew or i know?--i really cannot say, sir, for i did not expect to be called for to be examined here, and will not take upon me to swear positively to a word. she was in a sort of agony, in a very great fright. [sidenote: mr. lane] mr. lane, examined--i went into the room where the prisoner was before my wife the day after mr. blandy's death. she arose from her chair, and met me, and looked hard at me. she said, "sir, i have not the pleasure of knowing you." said i, "no, i am a stranger to you." she said, "sir, you look like a gentleman. what do you think they will do with me?" said i, "you will be committed to the county gaol, and be tried at the assizes, and if your innocence appears you will be acquitted; if not, you will suffer accordingly." she stamped with her foot, and said, "o! that damned villain! but why do i blame him? i am more to blame." then mr. littleton came in, which took off my attention from her that i did not hear so as to give an account of the whole. [the letter which littleton opened, read in court.] directed to the hon. william henry cranstoun, esq.-- dear willy,--my father is so bad, that i have only time to tell you, that if you do not hear from me soon again, do not be frightened. i am better myself; and lest any accident should happen to your letters take care what you write. my sincere compliments. i am ever, yours. the prisoner's defence.[ ] [sidenote: mary blandy] my lords, it is morally impossible for me to lay down the hardships i have received--i have been aspersed in my character. in the first place, it has been said that i have spoken ill of my father, that i have cursed him, and wished him at hell, which is extremely false. sometimes little family affairs have happened, and he did not speak to me so kind as i could wish. i own i am passionate, my lords, and in those passions some hasty expressions might have dropped; but great care has been taken to recollect every word i have spoken at different times, and to apply them to such particular purposes as my enemies knew would do me the greatest injury. these are hardships, my lords, extreme hardships, such as you yourselves must allow to be so. it is said, too, my lords, that i endeavoured to make my escape. your lordships will judge from the difficulties i laboured under. i had lost my father--i was accused of being his murderer--i was not permitted to go near him--i was forsaken by my friends--affronted by the mob--insulted by my servants. although i begged to have the liberty to listen at the door where he died i was not allowed it. my keys were taken from me, my shoe buckles and garters, too--to prevent me from making away with myself, as though i was the most abandoned creature. what could i do, my lords? i verily believe i must have been out of my senses. when i heard my father was dead, and the door open, i ran out of the house and over the bridge, and had nothing on but a half-sack and petticoat without a hoop--my petticoats hanging about me--the mob gathered about me. was this a condition, my lords, to make my escape in? a good woman beyond the bridge seeing me in this distress desired me to walk in till the mob was dispersed. the town serjeant was there. i begged he would take me under his protection to have me home. the woman said it was not proper; the mob was very great, and that i had better stay a little. when i came home they said i used the constable ill. i was locked up for fifteen hours, with only an odd servant of the family to attend me. i was not allowed a maid for the common decencies of my sex. i was sent to gaol, and was in hopes there, at least, this usage would have ended. but was told it was reported i was frequently drunk; that i attempted to make my escape; that i never attended the chapel. a more abstemious woman, my lords, i believe does not live. upon the report of my making my escape the gentleman who was high sheriff last year (not the present) came and told me, by order of the higher powers, he must put an iron on me. i submitted, as i always do to the higher powers. some time after he came again, and said he must put a heavier upon me, which i have worn, my lords, till i came hither. i asked the sheriff why i was so ironed. he said he did it by the command of some noble peer on his hearing that i intended to make my escape. i told them i never had such a thought, and i would bear it with the other cruel usage i had received on my character. the rev. mr. swinton, the worthy clergyman who attended me in prison, can testify that i was very regular at the chapel whenever i was well. sometimes i really was not able to come out, and then he attended me in my room. they likewise have published papers and depositions which ought not to have been published in order to represent me as the most abandoned of my sex and to prejudice the world against me. i submit myself to your lordships and to the worthy jury. i can assure your lordships, as i am to answer it before that grand tribunal, where i must appear, i am as innocent as the child unborn of the death of my father. i would not endeavour to save my life at the expense of truth. i really thought the powder an innocent, inoffensive thing, and i gave it to procure his love. it has been mentioned, i should say i was ruined. my lords, when a young woman loses her character is not that her ruin? why, then, should this expression be construed in so wide a sense? is it not ruining my character to have such a thing laid to my charge? and whatever may be the event of this trial i am ruined most effectually. evidence for the defence. [sidenote: ann james] ann james, examined--i live at henley, and had use to wash for mr. blandy. i remember the time mr. blandy grew ill. before he was ill there was a difference between elizabeth binfield and miss blandy, and binfield was to go away. how long before mr. blandy's death?--it might be pretty near a quarter of a year before. i have heard her curse miss blandy, and damn her for a bitch, and said she would not stay. since this affair happened i heard her say, "damn her for a black bitch. i shall be glad to see her go up the ladder and swing." how long after?--it was after miss blandy was sent away to gaol. cross-examined--what was this quarrel about?--i do not know. i heard her say she had a quarrel, and was to go away several times. who was by at this time?--mary banks was by, and nurse edwards, and mary seymour, and i am not sure whether robert harman was there or not. how was it introduced?--it happened in mr. blandy's kitchen; she was always talking about miss. were you there on the th of august?--i cannot say i was. do you remember the prisoner's coming into the washhouse and saying she had been doing something with her father's water gruel?--no, i do not remember it. [sidenote: e. binfield] elizabeth binfield, recalled--did you, elizabeth binfield, ever make use of such an expression as this witness has mentioned?--i never said such words. did you ever tell this witness miss and you had quarrelled?--to the best of my knowledge, i never told her about a quarrel. have you ever had a quarrel?--we had a little quarrel sometime before. did you ever declare you were to go away?--i did. [sidenote: mary banks] mary banks, examined--i remember being in mr. blandy's kitchen in company with ann james. counsel--who was in company?--i do not remember. do you remember a conversation between elizabeth binfield and ann james?--i do not remember anything of it. do you remember her aspersing miss blandy's character?--i do not recollect. did you hear her say, "she should be glad to see the black bitch go up the ladder to be hanged"?--she did say, "she should be glad to see the black bitch go up the ladder to be hanged." when was this?--it was the night mr. blandy was opened. are you sure it was that day?--i am sure it was. where was miss blandy then?--she was then in the house. [sidenote: e. herne] edward herne, examined--i formerly was a servant in mr. blandy's family; i went there eighteen years ago, and left them about twelve years ago last november, but have been frequently at the house ever since, that is, may be once, twice, thrice, or four times in a week. what was miss's general behaviour to her father and in the family?--she behaved, according to what i always observed, as well to her father and the family as anybody could do, an affectionate, dutiful daughter. did you see her during the time of mr. blandy's illness?--i did. the first time i went into the room she was not able to speak to me nor i to her for ten minutes. what was that owing to?--it was owing to the greatness of her grief. when was this?--it was the th of august, at night. how did her father seem to be satisfied with her behaviour and conduct?--she was put into my custody that night; when i went into the room (upon hearing the groans of her father) she said, at my return, "pray, ned, how does he do?" did you ever hear her speak ill of her father?--i never heard her swear an oath all the time i have known her, or speak a disrespectful word of her father. cross-examined--what are you?--i am sexton of the parish. on what night did mr. blandy die?--on the wednesday night. how came you, as she was put under your care, to let her get away?--i was gone to dig a grave, and was sent for home; they told me she was gone over the bridge. had you any talk with her about this affair?--she declared to me that captain cranstoun put some powder into tea one morning for mr. blandy, and she turned herself about he was stirring it in the cup. when did she tell you this?--in august, . have you seen her since she has been in oxford gaol?--i have. when the report was spread that the captain was taken i was with her in the gaol; a gentleman came in and said he was taken; she wrung her hands and said, "i hope in god it is true, that he may be brought to justice as well as i, and that he may suffer the punishment due to his crime as she should do for hers." prisoner--give me leave to ask the last witness some questions. court--you had better tell your questions to your counsel, for you may do yourself harm by asking questions. prisoner's counsel--did not the prisoner at the same time declare that as to herself she was totally innocent, and had no design to hurt her father?--at that time she declared that when cranstoun put the powder into the tea, upon which no damage at all came, and when she put powder afterwards herself, she apprehended no damage could come to her father. when she spoke of her own suffering did she not mean the same misfortune that she then laboured under?--she said she should be glad cranstoun should be taken and brought to justice; she thought it would bring the whole to light, he being the occasion of it all, for she suffered (by being in prison) and was innocent, and knew nothing that it was poison no more than i or any one person in the house. [sidenote: t. cawley] thomas cawley, examined--i have known miss blandy twenty years and upwards, and her father likewise; i was intimate in the family, and have frequently drunk tea there. what was her behaviour to her father during your knowledge of her?--i never saw any other than dutiful. [sidenote: t. staverton] thomas staverton, examined--i have lived near them five or six and twenty years and upwards, and was always intimate with them; i always thought they were two happy people, he happy in a daughter and she in a father, as any in the world. the last time she was at our house she expressed her father had had many wives laid out for him, but she was satisfied he never would marry till she was settled. cross-examined--did you observe for the last three or four months before his death that he declined in his health?--i observed he did; i do not say as to his health, but he seemed to shrink, and i have often told my wife my old friend blandy was going. had he lost any teeth latterly?--i do not know as to that; he was a good-looking man. prisoner's counsel--how old was he?--i think he was sixty-two. [sidenote: mary davis] mary davis, examined--i live at the angel at henley bridge; i remember miss blandy coming over the bridge the day that mr. blandy was opened; she was walking along, and a great crowd of people after her. i, seeing that, went and asked what was the matter; i asked her where she was going? she said, "to take a walk for a little air, for they were going to open her father, and she could not bear the house." the mob followed her so fast was the reason i asked her to go to my house, which she accepted. did she walk fast or slowly?--she was walking as softly as foot could be laid to the ground; it had not the least appearance of her going to make her escape. [sidenote: r. stoke] robert stoke, examined--i saw the prisoner with mrs. davis the day her father was opened; i told her i had orders from the mayor to detain her. she said she was very glad, because the mob was about. did you think, from her dress and behaviour, she was about to attempt to make her escape?--no, it did not appear to me at all. cross-examined--were you there when mr. and mrs. lane came in?--i was. did you hear the words she said to mr. lane?--i heard nothing at all. [sidenote: mr. ford] mr. ford--as very unjustifiable and illegal methods have been used to prejudice the world against miss blandy, such as it is to be hoped, no man will have the boldness to repeat--i mean the printing and publishing the examination of witnesses before her trial--and as very scandalous reports have been spread concerning her behaviour ever since her imprisonment, it is desired that the reverend gentleman who has attended her as a clergyman may give an account of her conduct whilst in gaol, that she may at least be delivered of some of the infamy she at present lies under. to which he was answered by the court that it was needless to call a witness to that, as the jury was only to regard what was deposed in court, and entirely to disregard what papers had been printed and spread about, or any report whatsoever. [sidenote: mr. bathurst] mr. bathurst--your lordships will, i hope, indulge me in a very few words by way of reply, and after the length of evidence which has been laid before the jury i will take up but little of your lordships' time. gentlemen, you observe it has been proved to a demonstration that mr. francis blandy did die of poison. it is as clearly proved that he died of the poison put into his water gruel upon the th of august, and that the prisoner at the bar put it in. for so much appears, not only from her own confession, but from a variety of other evidence. the single question, therefore, for your consideration is, whether she did it knowingly or ignorantly? [illustration: miss molly blandy, taken from the life in oxford castle (_from an engraving in the collection of mr. a.m. broadley_.)] i admit that in some of the conversations which she has had at different times with different persons she has said she did it without knowing it to be poison, or believing it to be so. at the same time i beg leave to observe (as you will find when their lordships sum up the evidence to you) that she did not always make the same pretence. examine then, gentlemen, whether it is possible she could do it ignorantly. it has appeared in evidence that she owned she saw mr. cranstoun put some powder into her father's tea in the month of august preceding, that she had herself afterwards done the same; but she said she saw no ill-effect from it, and therefore concluded it was not hurtful. her own witness, thomas staverton, says that for the past year mr. blandy used to shrink in his clothes, that he made the observation to his wife and told her his friend blandy was going. our witnesses have said that she herself made the same observation, told them her father looked very ill, as though he would not live, and said he would not live till october. and here let me observe one thing. she says she gave her father this powder to make him love her. after having heard the great affection with which the poor dying man behaved towards her, can you think she wanted any charm for that purpose? after having heard what her own witnesses have said of the father's fondness for the daughter, can you believe she had occasion for any love powder? but one thing more. she knew her father had taken this powder in his water gruel upon the monday night, and upon the tuesday night; saw how violently he was affected by it, and yet would have had more of the same gruel given to him upon the wednesday. yet one thing more. when she must have been fully satisfied that it was poison, and that it would probably be the occasion of his death, she endeavoured to burn the paper in which the rest of the powder was contained, without ever acquainting the physicians what she had given him, which might have been the means for them to have prescribed what was proper for his relief. still one thing more. she is accused upon the saturday; she attempts to burn the powder upon the saturday; and yet upon the sunday she stays from church in order to write a letter to mr. cranstoun. in that letter she styles him her "dear willy," acquaints him her father is so bad that he must not be frightened if he does not soon hear from her again; says she is herself better; then cautions him to take care what he writes lest his letters should fall into a wrong hand. was this such a letter as she would have wrote if she had been innocent? if she had not known the quality of the powder? if she had been imposed upon by mr. cranstoun? i will only make one other observation, which is that of all our witnesses she has attempted to discredit only one. she called two persons to contradict elizabeth binfield in regard to a scandalous expression (which she was charged with, but which she positively denied ever to have made use of) in saying "she should be glad to see the prisoner go up the ladder and swing." they first called ann james; she swore to the expression, and said it was after miss blandy was sent to oxford gaol. the next witness, mary banks, who at first did not remember the conversation, and at last did not remember who were present, said (upon being asked about the time) that she was sure the conversation happened upon the thursday night on which mr. blandy was opened, and during the time that miss blandy was in the house. these two witnesses, therefore, grossly contradict one another, consequently ought not to take away the credit of elizabeth binfield. and let me observe that elizabeth binfield proved nothing (besides some few expressions used by miss blandy) but what was confirmed by the other maidservant, susan gunnell. i will, in justice to the prisoner, add (what has already been observed by mr. ford) that the printing which was given in evidence before the coroner, drawing odious comparisons between her and former parricides, and spreading scandalous reports in regard to her manner of demeaning herself in prison, was a shameful behaviour towards her, and a gross offence against public justice. but you, gentlemen, are men of sense, and upon your oaths; you will therefore totally disregard whatever you have heard out of this place. you are sworn to give a true verdict between the king and the prisoner at the bar, according to the evidence now laid before you. it is upon that we (who appear for the public) rest our cause. if, upon that evidence, she appears to be innocent, in god's name let her be acquitted; but if, upon that evidence, she appears to be guilty, i am sure you will do justice to the public, and acquit your own consciences. prisoner--it is said i gave it my father to make him fond of me. there was no occasion for that--but to make him fond of cranstoun. charge to the jury. [sidenote: mr. baron legge] mr. baron legge[ ]--gentlemen of the jury, mary blandy, the prisoner at the bar, stands indicted before you for the murder of francis blandy, her late father, by mixing poison in tea and water gruel, which she had prepared for him, to which she has pleaded that she is not guilty. in the first place, gentlemen, i would take notice to you of a very improper and a very scandalous behaviour towards the prisoner by certain people who have taken upon themselves very unjustifiably to publish in print what they call depositions, taken before the coroner, in relation to this very affair which is now brought before you to determine. i hope you have not seen them; but if you have, i must tell you, as you are men of sense and probity, that you must divest yourselves of every prejudice that can arise from thence and attend merely to the evidence that has now been given before you in court, which i shall endeavour to repeat to you as exactly as i am able after so great a length of examination. in support of the indictment, the counsel for the crown have called a great number of witnesses. in order to establish, in the first place, the fact that mr. blandy died of poison, they begin with dr. addington, who tells you that he did attend mr. blandy in his last illness; that he was first called in upon saturday evening, the th of august last; that the deceased complained that after drinking some water gruel on monday night, the th of august, he perceived a grittiness in his mouth, attended with a pricking-burning, especially about his tongue and throat; that he had a pricking and burning in his stomach, accompanied with sickness; a pricking and griping in his bowels; but that afterwards he purged and vomited a good deal, which had lessened those symptoms he had complained of; that on tuesday night, the th of august, he took more gruel, and had immediately a return of the same symptoms, but more aggravated; that he had besides hiccups, cold sweats, great anxieties, prickings in every external as well as internal part of his body, which he compared to so many needles darting at the same time into all parts of him; but the doctor tells you at the time he saw him he said he was easy, except in his mouth, his nose, lips, eyes, and fundament, and some transient pinchings in his bowels, which the doctor then imputed to the purgings and vomitings, for he had had some bloody stools; that he imputed the sensations upwards to the fumes of something he had taken the monday and tuesday before; that he inspected the parts affected, and found his tongue swelled, his throat excoriated and a little swelled, his lips dry, and pimples on them, pimples on the inside of his nostrils, and his eyes bloodshot; that next morning he examined his fundament, which he found surrounded with ulcers; his pulse trembled and intermitted, his breath was interrupted and laborious, his complexion yellowish, and he could not without the greatest difficulty swallow a teaspoonful of the thinnest liquid; that he then asked him if he had given offence to any person whatever. his daughter the prisoner was then present, and she made answer that her father was at peace with all the world, and all the world with him. he then asked if he had been subject to this kind of complaint before. the prisoner said that he was subject to the heartburn and colic, and she supposed this would go off as it used to do; that he then told them that he suspected that by some means or other he had taken poison, to which the deceased replied he did not know but he might, or words to that effect; but the prisoner said it was impossible. he returned to visit him on sunday morning, and found him something relieved; that he had some stools, but none bloody, which he took for a spasm; that afterwards norton, the apothecary, gave him some powder, which he said had been taken out of gruel, which the deceased had drank on monday and tuesday; this powder he examined at leisure, and believed it to be white arsenic; that the same morning a paper was put into his hands by one of the maids, which she said had been taken out of the fire, and which she saw miss blandy throw in. there was a superscription on the paper, "powder to clean the pebbles." there was so little of it that he cannot say positively what it was, but suspects it to be arsenic, for he put it on his tongue and it felt like arsenic, but some burnt paper mixed with it had discoloured and softened it. he tells you that on monday morning the deceased was worse; all the symptoms returned, and he complained more of his fundament than before. he then desired the assistance of some skilful physician, because he looked upon him to be in the utmost danger, and apprehended this affair might come before a court of judicature. he asked the deceased if he really thought he was poisoned, to which he answered that he really believed so, and thought he had taken it often, because his teeth rotted faster than usual; he had frequent prickings and burnings in his tongue and throat, violent heartburn, and frequent stools, that carried it off again by unaccountable fits of vomiting and purging; that he had had these symptoms, especially after his daughter had received a present of scotch pebbles from mr. cranstoun. he then asked the deceased who he suspected had given the poison to him; the tears then stood in his eyes, but he forced a smile and said, "a poor love-sick girl! i forgive her; i always thought there was mischief in those cursed scotch pebbles." dr. lewis came that evening, and miss blandy was sent into her chamber, under a guard, and all papers in her pocket, and all instruments with which she might hurt herself, or any other person, and her keys, were taken from her, that nothing might be secreted; for it was not then publicly known that mr. blandy was poisoned, and they thought themselves accountable for her forthcoming. on monday night the deceased mended again, and grew better and worse, unaccountably, as long as he lived. on tuesday morning everything growing worse, he became excessively weak, rambled in his discourse, and grew delirious, had cold, clammy sweats, short cough, and a deep way of fetching his breath; and he observed upon these occasions that an ulcerous matter issued from his fundament. in the midst of all this, whenever he recovered his senses he said he was better, and seemed quite serene, and told him he thought himself like a man bit by a mad dog. "i should be glad to drink, but i can't swallow." about noon his speech faltered more than before; he grew ghastly, was a shocking sight, and had a very bad night. on wednesday morning he recovered his senses a little and said he would make his will in a few days; but soon grew delirious again, sunk every minute, and about two in the afternoon he died. the doctor tells you he then thought, and still thinks, that he died of poison; that he had no symptoms while he lived, nor after he was dead, but what are common in people who have taken white arsenic. he then read some observations which he had made on the appearances of his body after he was dead; that his back and the parts he lay on were livid; the fat on the muscles of his belly was loose in texture and, approached fluidity; the muscles of the belly were pale and flaccid; the cawl yellower than natural; the side next the stomach and intestines brownish; the heart variegated with purple spots; there was no water in the pericardium; the lungs resembled bladders filled with air, blotted with black, like ink; the liver and spleen were discoloured, and the former looked as if it had been boiled; a stone was found in the gall-bladder; the bile was very fluid and of a dirty yellow colour inclining to red; the kidneys were stained with livid spots; the stomach and bowels were inflated, and looked liked they had been pinched, and blood stagnated in the membranes; they contained slimy, bloody froth; their coats were thin, smooth, and flabby; the inside of the stomach was quite smooth, and, about the orifices, inflamed, and appeared stabbed and wounded, like the white of an eye just brushed by the beards of barley; that there was no appearance of any natural decay at all in him, and therefore he has no doubt of his dying by poison; and believes that poison to have been white arsenic; that the deceased never gave him any reason why he took the same sort of gruel a second time, nor did he ask him. he tells you, as to the powder that was given him by norton, he made some experiments with it the next day, and some part of it he gave to mr. king, an experienced chemist in reading, who, upon trial, found it to be arsenic, as he told him; that he twice had powder from norton, and that what he had the second time he kept entirely in his own custody and made experiments with it a month afterwards; that he never was out of the room while those experiments were making, and he observed them to tally exactly with other arsenic which he tried at the same time. i need not mis-spend your time in repeating the several experiments which the doctor has told you he made of it; he has been very minute and particular in his account of them, and, upon the whole, concludes the same to have been arsenic. dr. lewis, the other physician, who has likewise been sworn, stood by all the while, and confirms dr. addington's evidence, tells you he observed the same symptoms, and gives it absolutely as his opinion that mr. blandy died by poison, of which he has not the least doubt. the next witness that is called on the part of the crown is benjamin norton, who is an apothecary at henley. he tells you he was sent for to mrs. mounteney's, in henley, on thursday morning, the th of august; that there was a pan brought thither by susan gunnel, mr. blandy's maidservant, with some water gruel in it; that he was asked what that powder was in the bottom of the pan, to which he replied that it was impossible to say whilst it was wet in the gruel, but that he would take it out; that accordingly he did take it out and laid it upon paper, and gave it to mrs. mounteney to keep, which she did till the sunday following, when it was delivered to him, and he showed it to dr. addington, to whom he gave some of it twice, and, by the experiment made upon it with a hot poker, he apprehended it to be of the arsenic kind; that the powder he gave dr. addington was the same that he received from mrs. mounteney; that he has some of it still by him, which, he now produces in court. he tells you that he was sent for to mr. blandy on tuesday, the th of august; that he was very ill, as he imagined, of colic, and complained of a violent pain in his stomach, attended with reaching and purging and swelling of the bowels; that he took physic on wednesday morning, from which he found himself better; that on thursday he went there in the morning, but did not then see him, but went again about twelve o'clock, and then saw him; he desired to have more physic, which he sent him to take on the friday morning; that he has been used to attend mr. blandy, but that he never saw him thus out of order; that the last illness that he had had was thirteen months before. he tells you that he has heard the prisoner say that she had heard music in the house, which portended something, and that cranstoun had seen her father's apparition, and this was some months before her father's death; he says that he cannot tell who it was sent for him, but that when he came he found mr. blandy and the prisoner together; that he asked if he had eaten anything that had disagreed with him, to which the prisoner made answer, nothing that she knew of, except some peas on the saturday night before; that at that time he did not apprehend anything of poison, nor did mr. blandy mention anything of taking the gruel to him; that on saturday the prisoner desired he would take care of her father, and if there were any danger, call for help; he told her he thought he was in great danger, and then she begged dr. addington might be sent for. mr. blandy himself would have deferred it till the next day, but she, notwithstanding, sent for him immediately. he tells you that as to the powder he found it to be gritty, and had no smell; at first he could not tell what it was till he took notice of the old woman's symptoms to be the same as mr. blandy's; then he suspected foul play, and from what he heard in the family suspected miss blandy. mrs. mounteney is then called, who tells you that she remembers susan gunnell bringing a pan to her house with water gruel and powder at the bottom of it on thursday; that she sent for norton, the apothecary, who took the powder out, and laid it on white paper, which he gave to her to keep till it was called for; that she locked it up, and delivered the same to norton on the sunday following; she tells you that the prisoner always behaved dutifully to her father, as far as ever she saw, when in his presence; that she did not mention the paper left with her to anybody till it was fetched away on sunday morning, the th of august; that she was not at mr. blandy's in that time, and neither saw him nor the prisoner, but she was there on the sunday afternoon, though she did not then mention anything of it. the next witness is susan gunnell, who tells you that she carried the pan of water gruel to mrs. mounteney's from mr. blandy's, which had been made at his house the sunday seven-night before his death by himself; that she set it in the common pantry, where all the family used to go, and observed nobody to be busy there afterwards; but on monday the prisoner told her she had been stirring her papa's water gruel and eating the oatmeal out of the bottom; that she gave him a half-pint mug of it that monday night before he went to bed; that she saw the prisoner take the teaspoon that was in the mug, stir it about, and then put her fingers to the spoon, and rub them together, and then he drank some part of it; that on tuesday morning she did not see him when first he came downstairs, and the first time she saw him was between nine and ten o'clock, when miss blandy and he were together; that he then said he was not well, and going to lie down; that on tuesday evening robert harman bid her warm her master some water gruel, for he was in haste for supper; that she warmed him some of the same, which miss blandy carried into the parlour, and she believes he ate of it, for there was about half left in the morning; that she met him that night, after the water gruel, as he was going up to bed; as soon as he got into the room he called for a basin to reach, and seemed to be very sick by reaching several times; the next morning about six o'clock she carries him up his physic, when he told her he had had a pretty good night, and was better; but he had vomited in the night, as she judges by the basin, which she had left clean, and was then about half-full; that on wednesday the prisoner came into the kitchen and said to her that as her master had taken physic he might want water gruel, therefore she might give him the same again, and not leave her work to make fresh, as she was busy ironing; to which she answered that it was stale, if there was enough of it; that it would not take much time, and she would make fresh, and accordingly did so; that she had the evening before taken up the pan, and disliked the taste, and thought it stale, but was now willing to taste it again; that she put the pan to her mouth and drank some of it, and then observed some whiteness at the bottom, and told betty binfield that she never saw any oatmeal settlement so white before, whereupon betty binfield looked at it, and said "oatmeal this! i think it looks as white as flour"; she then took it out of doors, where there was more light, and putting her finger to the bottom of the pan, found it gritty, upon which she recollected that she had heard that poison was white and gritty, which made her fear this might be poison; she therefore locked it up in a closet, and on thursday morning carried it to mrs. mounteney's, where mr. norton saw it. she tells you that about six weeks before mr. blandy's death she was not very well herself, and miss blandy then asked her what was the matter with her, and what she had eaten or drank; to which she answered that she knew not what ailed her, but she had taken nothing more than the rest of the family; upon which the prisoner said to her, "susan, have you eaten any water gruel? for i am told it hurts me, and may hurt you." to which she answered, "madam, it cannot affect me, for i have eaten none." she then mentions a conversation that betty binfield told her she had with the prisoner on the same subject, but that you will hear from betty binfield herself. she then tells you that on the wednesday morning, after she had given her master his physic, she saw ann emmet, the charwoman, and said to her, "dame, you used to be fond of water gruel; here's a fine mess for you which my master left last night"; and thereupon warmed it, and gave it her; that the woman sat down on a bench in the kitchen and drank some of it, but not all, and said the house smelt of physic, and everything tasted of physic, and she must go out and reach before she could finish it; that she went out to the wash-house, as she believes; that in about half an hour she followed her, and then found her in the necessary-house reaching, and, as she said, purging; that the old woman stayed there an hour and a half, during which time she went frequently to her, and carried her surfeit water; she said she was no better, and desired some fair water, upon which she persuaded her to come into the house, but she said she was not able without help; that then she led her in and put her in a chair by the fire, where the coughing and reaching continued; that she stayed in the house half an hour, and grew worse, and she thought her in a fit or seized with death; that about nine of the clock that morning she went up to miss blandy and acquainted her that her dame had been very ill and complained that the smell of physic had made her sick, and at the same time told her that she had eaten nothing but a little of her master's water gruel, which could not hurt her, to which the prisoner said, "that she was glad she was not below stairs, for she should have been shocked to have seen her poor dame so ill." she tells you that sometimes the prisoner talked affectionately of her father, and at other times but middling, and called him an old villain for using an only child so. sometimes she wished for his long life, and sometimes for his death, and would often say, "that she was very awkward, and that if her father was dead she would go to scotland and live with lady cranstoun; that by her father's constitution he might live twenty years, but sometimes would say she did not think he looked so well." she remembers dr. addington being sent for on saturday evening, and tells you that the prisoner was not debarred going into her father's room till sunday night, when mr. norton brought her down with him, and told this witness not to suffer any person to go into her master's room except herself, who looked after him. that about ten of the clock on monday morning the prisoner came into the room after mr. norton; that she then fell on her knees to her father, and said, "sir, banish me where you please; do with me what you please, so you do, but forgive me; and as for cranstoun, i will never see him, speak to him, or write to him more as long as i live if you will forgive me." to which the deceased made answer, "i forgive thee, my dear, and i hope god will forgive thee; but thee shouldst have considered better before thee attemptedst anything against thy father; thee shouldst have considered i was thy own father." that the prisoner then said, "sir, as to your illness i am entirely innocent." to which the witness replied, "madam, i believe you must not say you are entirely innocent, for the powder left in the water gruel and the paper of powder taken out of the fire are now in such hands that they must be publicly produced." the witness then told her that she believed she had herself taken, about six weeks before, a dose in tea that was prepared for her master. to which the prisoner answered, "i have put no powder in tea; i have put powder in water gruel. if you have received any injury i am entirely innocent; it was given me with another intent." the deceased hearing this turned himself in his bed, and said, "oh, such a villain! come to my house, eat of the best and drink of the best my house could afford, should take away my life and ruin my daughter. oh! my dear, thee must hate that man; thee must hate the ground he goes on; thee can'st not help it." that the prisoner replied, "sir, your tenderness to me is like a sword to my heart. every word you say is like swords piercing my heart, much worse than if you were to be ever so angry. i must down on my knees and beg you will not curse me." to which her father answered, "i curse thee, my dear! how shouldst think i could curse thee? no; i bless thee, and hope god will bless thee, and amend thy life. do, my dear, go out of the room; say no more lest thee shouldst say anything to thy own prejudice. go to thy uncle stevens; take him for thy friend. poor man, i am sorry for him." and that then the prisoner went directly out of the room. this witness further tells you that on the saturday before she was in the kitchen about twelve o'clock at noon, when the prisoner having wrote the direction of a letter to her uncle stevens and going to the fire to dry it, she observed her put a paper or two into the fire, and saw her thrust them down with a stick; that elizabeth binfield, then putting some fresh coals on, she believes kept the paper from being consumed, soon after which the prisoner left the kitchen, and she herself acquainted betty binfield that the prisoner had been burning something; that betty binfield asked where, and the witness pointed to the corner of the grate, whereupon betty binfield moved a large coal and took out a paper and gave it to her; that it was a small piece of paper with writing upon it, viz., "the powder to clean the pebbles," to the best of her remembrance. she did not read it herself, but betty binfield did, and told her what it was; that about eleven or twelve o'clock that night she delivered this paper to betty binfield again, but it had never been out of her pocket till that time. she tells you that before this, upon the same saturday morning, she had been in her master's room about seven o'clock to carry him something to drink, and when he had drank it she said to him, "sir, i have something to communicate to you which nearly concerns your health and your family, i believe you have got something in your water gruel that i am afraid has hurt you, and i believe miss blandy put it in by her coming into the wash-house on monday and saying that she had been stirring her papa's water gruel and eating the oatmeal out of it." upon which he said, "i find i have something not right. my head is not right as it used to be, nor has been for some time." this witness told him that she had found a powder in the pan, upon which he said to her, "dost thee know anything of this powder? didst thee ever see any of it?" to which she answered, "no, none but what she saw in the water gruel." he then asked her, "dost know where she had this powder, or canst guess?" to which she replied, "i cannot guess anywhere, except from mr. cranstoun. my reason to suspect that is, miss blandy has lately had letters oftener than usual." her master then said, "now you mention it, i remember when he was at my house he talked of a particular poison they had in his country. oh! that villain, that ever he came into my house." she likewise told him that she had shown the powder to mr. norton, but he could not tell what it was, as it was wet, but whatever it was it ought not to be there. her master expressed some surprise, and said, "mr. norton not know! that's strange. a person so much used to drugs." she told him mr. norton thought it would be proper for him (her father) to seize her pockets with her keys and papers. to which he said, "i cannot do it; i cannot shock her so much. but canst not thee take out a letter or two which she may think she has dropped by chance?" the witness told him, "no, sir, i have no right; she is your daughter. you may do it, and nobody else." she tells you she cannot say how long before this it was that ann emmet had been sick with the tea; that miss blandy then sent her whey and broth, a quart or three pints at a time, once a day or every other day; that she herself once drank a dish of tea on a sunday morning out of her master's dish, which was not well relished, and she thought somebody had been taking salts in that cup; and this was about six weeks and three days before her master's death; that she found no ill effect from it till after dinner that day; she had then a hardness at her stomach, which she apprehended was from eating plentifully of beans at dinner; that afterwards she seemed to have some indigestion, and had a remarkable trembling upon her; that she had no other symptoms for three days, but afterwards, for about three days more, she was troubled with a reaching every morning. she says she tasted the water gruel twice, once on the tuesday, when she was mixing it for her master, and again on the wednesday, but found no remarkable disorder till about two o'clock on the wednesday morning before her master's death, when she was seized with convulsions. she says that her throat continued troublesome for six or seven weeks after she had drank the tea, and continued ill for three weeks after her master's death. she remembered once that the prisoner had a large box of linen and some pebbles from mr. cranstoun in the spring, before her master's death, and a small box of scotch pebbles afterwards, about three months before his death; that the prisoner showed the pebbles to many of her acquaintance, but the witness never heard of powder to clean them; she tells you that about a year before his death her master had a cold, but she does not remember he was so ill as to send for the apothecary; that he used to be equally complaining of the gravel, gout, and heartburn for twelve years; knows nothing particular of any complaint but the heartburn, and that he may have complained of all the time she has lived in the house, but she is not positive. she says the prisoner's behaviour to her father, in general, seemed to be dutiful, but she used undutiful expressions in her passions; that there had been no conversation between her master and the prisoner before her asking forgiveness, but a message sent by him to her that he was willing to forgive her if she would bring that villain to justice; in all he said afterwards he seemed to speak of his daughter as if he believed her innocent of any intention to hurt him, and looked on cranstoun as the first mover and contriver of all, and had said, "poor, unfortunate girl, that ever she should be led away by such a villain to do such a thing!" she believes he thought his daughter unacquainted with the effects of the powder; that the prisoner during his illness kept him company and directed everything for him as for herself; the prisoner knew her father was ill on monday and tuesday nights, but would not take upon her to say that she knew what was the cause of it, but she knew that the charwoman had been ill on the wednesday morning before she told the witness that the old water gruel would serve for her father. the next witness is elizabeth binfield, who tells you that she was a servant to the deceased almost three years before his death; that he first complained of unusual pains and prickings about a fortnight before his death; that she has often heard the prisoner mention walking and music that she had heard in the house; that she thought it to be her mother; and three-quarters of a year before her master's death the prisoner told her that the music presaged his death, and continued talking in the same way to the time of it; that she has often heard her say he would die before october; that the prisoner told her that mr. cranstoun had informed her that a famous woman, one mrs. morgan, who lived in scotland or london, but which the witness cannot say, had said so; that the prisoner used to appear glad when she spoke of the prospect of her father's death, for that then she should be released from all her fatigues and be happy. she tells you she heard the prisoner say that her father complained of a ball of fire in his guts before the monday on which he took the water gruel; she tells you that she remembers that ann emmet, the charwoman, was ill about five or six weeks before this time, and that the prisoner ordered her white wine, whey, and broth; that she herself made the broth two or three times, two quarts at a time. she says that on saturday, the th of august, the paper was taken out of the fire by herself, which she looks upon, and says she really believes it to be the same which she gave to susan gunnell, had again from her, and then delivered to dr. addington and mr. norton. she tells you that, when susan gunnell was ill, the prisoner asked this witness if susan had taken any of her father's water gruel, and upon her answering, "not that i know," the prisoner said, "if she does, she may do for herself, may i tell you." with this conversation she acquainted susan gunnell about a month or six weeks before her master's death, in which particular she is confirmed by susan gunnell. she says, further, that she heard the prisoner say, "who would grudge to send an old father to hell for £ , ?" and this she introduced by talking of young girls being kept out of their fortunes. she has heard the prisoner often curse her father and call him rascal and villain. she says that mr. cranstoun had been at her master's about three-quarters of a year before his death, and she believes her master did not approve of his being so much with his daughter, as she judged by his temper; but she does not believe he debarred his daughter from keeping him company. she says that, upon saturday, the th of august, she was in the kitchen when her master was shaving, and the prisoner was there, and her master said he had once like to have been poisoned at a public-house; to which the prisoner answered that she remembered it very well. her master said that one of the company died immediately, the other is now dead, but it was his fortune to be poisoned at last; and then looked hard at the prisoner, who appeared in great confusion, and seemed all in a tremble. her master said further that it was white arsenic that was put into their wine. this witness then tells you that she sat up with the prisoner the night her father died till three o'clock, but the prisoner went to bed about one; that they had no discourse at all of her father. but the prisoner asked her if she would go away with her, and offered, if she would go to the bell or the lion and hire a post-chaise, she would give her fifteen guineas at getting into the chaise and ten guineas more when they got to london; that, on the witness refusing to comply with this request, the prisoner burst into laughter and said she was only joking. she tells you further that she heard the prisoner tell dr. addington that she had given the powder to her father before, and then it was in tea; that she was afraid of a discovery, so flung it away, and filled the cup up again, which susan gunnell drank, and was ill for a week after. she says that upon monday, the th of august, the prisoner came into the wash-house and said that she had been in the pantry eating oatmeal out of her father's gruel, which she little regarded then. but the same day, in the afternoon, she saw the prisoner in the pantry, take a teaspoon, and stir the water gruel, which was in a pan, and then rubbed it between her fingers; that on the tuesday evening the prisoner came into the kitchen to her and said, "betty, if one thing should happen, will you go into scotland with me?" to which she said, "madam, i do not know." "what," says the prisoner, "you are unwilling to leave your friends?" to which the witness replied that, if she should go there and not like it, it would be expensive travelling. she says that on monday morning, the th of august, she went on a message from the prisoner to beg of her father that she might speak one word with him, which, being granted, the prisoner went up; and that she afterwards met the prisoner coming out of her father's room, when she clasped the witness round the neck, burst out a-crying, and said to her, "susan and you are the two honestest servants in the world; you deserve to be imaged in gold for your honesty; half my fortune will not make you amends for your honesty to my father." she tells you that her master had been out of order about twelve months before this time, and that it was at the time when susan gunnell was ill by drinking the tea that the prisoner cautioned her about susan's drinking her father's water gruel. dr. addington having been appealed to by the last witness, in the course of her evidence, is again called up, and confirms all that this witness has said, except he does not remember the circumstance of susan gunnell's being ill with the tea. he says that the prisoner always told him she thought it an innocent powder, but said it was impossible to express her horror that she was the cause of her father's death, though she protested that she thought it innocent when she gave it, for mr. cranstoun had assured her that he used to take it himself, and called it a love-powder; that she had a letter from him directing her to give it in gruel, as she had informed him it did not mix in tea; that "for her own part she desired life for no other purpose than only to go through a severe penance for her sins"; that, on her being pressed by him to discover all she knew relating to cranstoun, her answer was that "she was fully conscious of her own guilt, and would not add guilt to guilt, for she looked on cranstoun as her husband, though the ceremony had not passed between them." he tells you further that he does not remember that she gave him any satisfactory answer to any of the questions which he put to her, which he has repeated to you, and which are very material ones, but always persisted that she was entirely ignorant of the effects of the powder till she saw them on her father; and often said, "pray god send it may not kill him," after he had told her, and her father too, the danger of her father, and that he apprehended her to be undone. he then tells you he attended susan gunnell, who had the same symptoms with the deceased, but in a less degree. he also attended ann emmet, who had the same symptoms, and told her that she was poisoned. alice emmet is then called, who is daughter to ann emmet, the old charwoman, who gives you an account that her mother was charwoman at mr. blandy's in june last, in the time of hay harvest; that she was then taken sick, was seized in the night-time with a vomiting and purging, and this witness went in the morning to the prisoner, by her mother's desire, and acquainted her with the condition she was in; that the prisoner said she was sorry, and would send her something to drink, which she did in about an hour or two afterwards. the next witness is mr. littleton, who had been clerk to the deceased about two years, and tells you he came home from his father's, in warwickshire, upon the th of august last; that the next morning the prisoner, her father, and himself were at breakfast together; that they stayed for the deceased some time; that when he came he appeared to be ill and in great agony; that he had always a particular cup to himself; that he tasted his tea and did not like it, but said it had a gritty, bad taste, and asked the prisoner if she had not put too much of the black stuff in it (meaning bohea tea). the prisoner said it was as usual. he then tasted it again and said it had a bad taste, and looked very particularly at her. she seemed in a flurry, and walked out of the room. the deceased then poured the tea into the oat's basin and went away. soon after the prisoner came into the room again, when he told her that he thought the deceased was very ill, for that he could not eat his breakfast; on which she asked what he had done with it, and, upon his acquainting her that it was poured into the cat's basin, she seemed a good deal confused; that the next day, being sunday, mr. blandy, of kingston, came to their house, and went to church along with him; that after they returned from church the prisoner desired this witness to walk with her and mr. blandy in the garden, when she put a letter into his hand and bid him direct it as usual, which he understood to be to mr. cranstoun (having been used to direct others before), to seal it, and put it in the post. he tells you he had then heard so much that he opened the letter, transcribed it, carried it to mr. norton, and read it to the deceased, who only said, "poor, love-sick girl! what won't a girl do for a man she loves?" this letter he has now looked at, tells you that it is written worse than usual, therefore he cannot swear whether it is her hand or no, but he can swear it is the same she gave him. the letter itself has been read to you, and i will make no remarks upon it. he tells you that after mr. cranstoun was gone from henley, in august , he has often heard the prisoner say that she heard music, which portended death in the family, and sometimes thought it might be herself, sometimes her father, because he was so much broken; that he has heard her say death would happen before october; that he has often heard her curse her father, damn him for a rogue and a toothless old dog, within two months of his death and a great while before; that he has told her himself that he thought mr. blandy seemed broken, upon which she said she thought so too, and that the music portended his death. robert harman is called next, who tells you that he was servant to mr. blandy at the time of his death; that the night his master died the prisoner asked him where he should live next, on which he told her he did not know; and she then asked him if he would go away with her, and, upon his saying he did not care to do so, she told him no hurt would come to him, but it would be £ in his way, and wanted him to go away then immediately. he says the prisoner behaved well to her father and all the family, as far as he knows, and never heard her swear about her father. the next witness is richard fisher, who was one of the jury on inspection of the body of the deceased. on thursday, the th of august, he was informed that miss blandy was gone over henley bridge, and went to her at the angel. when he came into the room he told her he was sorry for her misfortune, and asked her if she would not be glad to go home again. she said she should, but could not get through the mob, upon which he got a covered post-chaise and carried her home. as they were going she asked him if she was to go to oxford that night; that he told her he believed not. when he brought her to her father's house he delivered her up to the constable; that after this he was upon the jury, and when he went to her again she asked him how it was likely to go with her, upon which he told her he was afraid very hardly, unless she could produce letters or papers of consequence to bring cranstoun to justice. upon which she said, "dear mr. fisher, i have burnt those letters that would have brought him to justice," and gave a key out of her pocket to search a drawer for letters; but none being found, she said, "my honour to him (meaning cranstoun) will prove my ruin." mrs. lane is then called, who says she went to the angel along with her husband, when the prisoner was there. the first word she heard her husband say was, if she was guilty she would suffer according to law; upon which the prisoner stamped on the ground, and the first thing she heard her say was, "o that damned villain!" then paused a little and went on again, "but why do i blame him? i am more to blame myself, for it was i gave it him, and know the consequence." upon being asked whether she said "i knew" or "i know," the witness tells you that she will not be positive which, but the prisoner was in a sort of agony; whichever way it was, it may make some little difference, but nothing material. mr. lane, the husband of the last witness, is then called, and tells you that he went into the room before his wife; that the prisoner rose and met him, told him he was a stranger to her, but, as he appeared like a gentleman, she asked him what they would do with her; that he told her she would be committed to the county gaol, and tried at the assizes; if her innocence appeared she would be acquitted, if not, she would suffer accordingly. upon which she stamped with her foot and said, "o that damned villain! but why do i blame him? i am more to blame"; that then mr. littleton came in, which took off his attention; that he did not hear what followed so as to be able to give an account of it. the letter from the prisoner to captain cranstoun, without any date to it, which was opened by littleton, has, then, been read to you, and with that the counsel for the crown conclude their evidence. the prisoner in her defence complains of hard usage she has met with, denies her ever speaking ill of her father, owns herself to be passionate, and complains that words of heat upon family affairs have been misconstrued and applied to an ill intention in her; that she was not in her senses when she lost her father, nor in a proper dress to make her escape when she went over henley bridge; that she was taken in at the angel by the woman of the house out of more compassion, and was then desirous to put herself under the protection of the town sergeant; that, during her confinement, she was not suffered to have decent attendance for a woman; that she was affronted by her own servants, cruelly traduced, and heavily ironed, without any reasonable cause; that she thought the powder innocent, and never had a thought of hurting her father; but her own ruin is effected by such an imputation upon her, and her appearance here, without her being convicted. she then calls her witnesses, and the first is ann james, who tells you she lives at henley, and used to wash at mr. blandy's house; that she remembers that some time before mr. blandy's illness there was a difference between the prisoner and elizabeth binfield, and that the latter was to go away; and that she has heard elizabeth binfield curse the prisoner and damn her for a bitch, and say she would not stay; that since this affair happened she heard her say (speaking of the prisoner), "damn her for a black bitch; she should be glad to see her go up the ladder and swing." she tells you that, when this conversation happened, the prisoner was gone to gaol, that it was in mr. blandy's kitchen, and that nurse edwards, mary seymour, and mary banks were present. elizabeth binfield is then called up again, and absolutely denies the words she is charged with; she says she never acquainted the witness with any quarrel she had had, to the best of her remembrance, but that she had some few words of difference with the prisoner, who had said that she was to go away. mary banks is then called, who says that she was in mr. blandy's kitchen while he was dead in the house; but she does not remember who was in company, nor any conversation that passed between elizabeth binfield and ann james till the words are directly put into her mouth, and then she recollects that elizabeth binfield said "she should be glad to see miss blandy, that black bitch, go up the ladder to be hanged;" but she tells you this was on the night that mr. blandy was opened, and that the prisoner was then in the house. those two witnesses are called to impeach the credit of elizabeth binfield as having a prejudice against the prisoner; but i see no great stress to be laid on their evidence, for they manifestly contradict one another, but do not falsify her in any one thing she has said. the next witness that she calls is edward herne, who was a servant to mr. blandy eighteen years ago, and has left his place about twelve years; but he has been very seldom without going three or four days a week to his house ever since; that the prisoner's general behaviour to her father and the family was as well as anybody could do, with affection and duty, as far as ever he saw; that on the monday night before mr. blandy died he went to the house, and that neither the prisoner nor he could speak for some minutes, which he attributed to her great concern; that she was put into his custody that night; that on hearing the groans of her father he went into him, at her desire, to inquire how he did; that he never heard her swear or speak disrespectfully of her father. he says he was not in the way when she went over henley bridge (being sent to dig a grave, he being sexton); that he has seen her since her confinement at oxford, and she told him that captain cranstoun had before put some powder in her father's tea; that she turned about, and when she turned again he was stirring it in; that on a report that captain cranstoun was taken, she wrung her hands and said, "she hoped in god it was true, that he might be brought to justice as well as herself; that as she was to suffer the punishment due to her crime, he might do so too;" but at the same time she declared that when cranstoun put the powder into the tea, and she herself did so afterwards, she saw no ill effects of it, or saw any harm from it; but if he were taken it would bring the whole to light, for she was innocent, and knew no more of its being poison than any person there. [illustration: miss mary blandy, with scene of her execution (_from an engraving by b. cole, after an original painting_.)] thomas cawley, the next witness, says that he has known the prisoner for twenty years and upwards; that he was intimate in the family, and never saw any other than the behaviour of a dutiful daughter from her. thomas staverton, that he has known the prisoner five- or six-and-twenty years; that he has lived near the family, and always thought that her father and she were very happy in each other. he has observed that mr. blandy was declining in his health; for four years or more he seemed to shrink, and believes he was about sixty-two years of age. mary davis is the next witness. she lives at the angel, by henley bridge, and remembers the prisoner coming over the day her father was opened; that she was walking along with a great crowd after her; that she went to her and asked her what was the matter, and where she was going. the prisoner said she was going to walk for the air, for that they were going to open her father, and that she could not bear the house. the mob followed so close that she invited the prisoner into her house, which she accepted, and was walking gently, and had not the appearance of making an escape. robert stoke tells you he knows the last witness, mrs. davis, and saw the prisoner with her in her house the day her father was opened; that he was ordered by the mayor to take care of the prisoner, which she said she was very glad of, because the mob was about; and he did not observe any inclination or attempt whatsoever to make an escape. this, gentlemen, is the substance of the evidence on both sides, as nearly as i can recollect it. i have not wilfully omitted or misstated any part of it; but if i have, i hope the gentlemen who are of counsel on either side will be so kind as to set me right. a very tragical story it is, gentlemen, that you have heard, and upon which you are now to form your judgment and give your verdict. the crime with which the prisoner stands charged is of the most heinous nature and blackest dye, attended with considerations that shock human nature, being not only murder, but parricide--the murder of her own father. but the more atrocious, the more flagrant the crime is, the more clearly and satisfactory you will expect that it should be made out to you. in all cases of murder it is of necessity that there should be malice aforethought, which is the essence of and constitutes the offence; but that malice may be either express or implied by the law. express malice must arise from the previous acts or declarations of the party offending, but implied malice may arise from numbers of circumstances relating either to the nature of the act itself, the manner of executing it, the person killing, or the person killed, from, which the law will as certainly infer malice as where it is express. poison in particular is in its nature so secret, and withal so deliberate, that wherever that is knowingly given, and death ensues, the so putting to death can be no other than wilful and malicious. in the present case, which is to be made out by circumstances, great part of the evidence must rest upon presumption, in which the law makes a distinction. a slight or probable presumption only has little or no weight, but a violent presumption amounts in law to full proof, that is, where circumstances speak so strongly that to suppose the contrary would be absurd. i mention this to you that you may fix your attention on the several circumstances that have been laid before you, and consider whether you can collect from them such a presumption as the law calls a violent presumption, and from which you must conclude the prisoner to be guilty. i would observe further that where that presumption necessarily arises from circumstances they are more convincing and satisfactory than any other kind of evidence, because facts cannot lie. i cannot now go through the evidence again, but you will consider the whole together, and from thence determine what you think it amounts to. thus far is undeniably true, and agreed on all sides, that mr. blandy died by poison, and that that poison was administered to him by his daughter, the prisoner at the bar. what you are to try is reduced to this single question--whether the prisoner, at the time she gave it to her father, knew that it was poison, and what effect it would have? if you believe that she knew it to be poison, the other part, viz., that she knew the effect, is consequential, and you must find her guilty. on the other hand, if you are satisfied, from her general character, from what has been said by the evidence on her part, and from what she has said herself, that she did not know it to be poison, nor had any malicious intention against her father, you ought to acquit her. but if you think she knowingly gave poison to her father, you can do no other than find her guilty. the jury consulted together about five minutes and then turned to the court. clerk of arraigns--gentlemen, are you all agreed on your verdict? jury--yes. clerk of arraigns--who shall say for you? jury--our foreman. clerk of arraigns--mary blandy, hold up thy hand (which she did). gentlemen of the jury, look upon the prisoner. how say you, is mary blandy guilty of the felony and murder whereof she stands indicted or not guilty? jury--guilty. clerk of arraigns--what goods or chattels, lands or tenements, had she at the time of the same felony and murder committed, or at any time since to your knowledge? jury--none. clerk of arraigns--hearken, to your verdict as the court hath recorded it. you say that mary blandy is guilty of the felony and murder whereof she stands indicted, and that she has not any goods or chattels, lands or tenements, at the time of the said felony and murder committed, or at any time since, to your knowledge, and so you say all. clerk of arraigns--mary blandy, hold up thy hand. you have been indicted of felony and murder. you have been thereupon arraigned, and pleaded thereto not guilty, and for your trial you have put yourself upon god and your country, which country have found you guilty. what have you now to say for yourself why the court should not proceed to give judgment of death upon you according to law? cryer--oyez! my lords the king's justices do strictly charge and command all manner of persons to keep silence whilst sentence of death is passing on the prisoner at the bar, upon pain of imprisonment. mr. baron legge--mary blandy, you have been indicted for the murder of your father, and for your trial have put yourself upon god and your country. that country has found you guilty. you have had a long and a fair trial, and sorry i am that it falls to my lot to acquaint you that i am now no more at liberty to suppose you innocent than i was before to presume you guilty. you are convicted of a crime so dreadful, so horrid in itself, that human nature shudders at it--the wilful murder of your own father! a father by all accounts the most fond, the most tender, the most indulgent that ever lived. that father with his dying breath forgave you. may your heavenly father do so too! it is hard to conceive that anything could induce you to perpetrate an act so shocking, so impossible to reconcile to nature or reason. one should have thought your own sense, your education, and even the natural softness of your sex, might have secured you from an attempt so barbarous and so wicked. what views you had, or what was your intention, is best known to yourself. with god and your conscience be it. at this bar we can judge only from appearances and from the evidence produced to us. but do not deceive yourself; remember you are very shortly to appear before a much more awful tribunal, where no subterfuge can avail, no art, no disguise can screen you from the searcher of all hearts--"he revealeth the deep and secret things, he knoweth what is in the darkness, and the light dwelleth with him." let me advise you to make the best and wisest use of the little time you are likely to continue in this world. apply to the throne of grace, and endeavour to make your peace with that power whose justice and mercy are both infinite. nothing now remains but to pronounce the sentence of the law upon you, which is-- "that you are to be carried to the place of execution and there hanged by the neck until you are dead; and may god of his infinite mercy receive your soul." the prisoner then addressed herself to the judge in this manner-- "my lord, as your lordship has been so good to show so much candour and impartiality in the course of my trial, i have one favour more to beg, which is, that your lordship would please to allow me a little time till i can settle my affairs, and make my peace with god." to which his lordship replied--"to be sure, you shall have a proper time allowed you." on monday, the th of april following, the prisoner was executed at oxford, according to the sentence pronounced against her. appendices. appendix i. proceedings before the coroner relative to the death of mr. francis blandy. (from no. of bibliography, appendix xii.) _i.--depositions of witnesses._ town of henley-on-thames in the county of oxford. to wit, depositions of witnesses and examinations taken on oath the th day of august , before richard miles, gent. mayor and coroner of the said town; and also before the jury impannelled to inquire into the cause of the death of francis blandy, gent. now lying dead. anthony addington of reading, in the county of berkshire, doctor of physick, maketh oath and saith, that mary blandy, daughter of francis blandy, gent. deceased, acknowledged to this deponent, that she received of the hon. william henry cranstoun, a powder which was called a powder to clean the stones or pebbles, which were sent to her at the same time as a present; and that monday, the th instant, she mixed part of the said powder in a mess of water gruel; but said, that, she did not know that it was poison, till she found the effects of it on her father; for that the said mr. cranstoun had assured her, that if she gave her father now and then of the said powder in gruel, or any other thin liquor, it would make him kind to her: and that the said mr. cranstoun assured her, that it was innocent, and that he frequently took of it himself; and that this deponent received from mr. benjamin norton, who was apothecary to the said francis blandy, some small portion of a powder, which mr. norton said was found at the bottom of the above-mentioned mess of gruel given to the said francis blandy on the th instant, and that this deponent, after examination of the said powder, suspects the same to be poison. a. addington. taken on oath, the th day of august, , before me richard miles. william lewis, of the university of oxford, doctor of physick, maketh oath and saith, that mary blandy, daughter of francis blandy, gent. deceased, acknowledged to this deponent, that she had frequently given to her said father, the powder which she had received from the hon. william henry cranstoun called the powder to clean the stones or pebbles, which she had received from him, but that she did not know that the said powder was poison, but that it was intended to make her father kind to her. w. lewis. taken on oath, the th day of august, , before me richard miles. edward nicholas of henley upon thames, in the county of oxford, surgeon, upon his oath saith, that he has examined the body of francis blandy, gent. deceased, and saith, that he found that the fat on the abdomen was near a state of fluidity, and that the muscles and membranes were extremely pale; and that the omentum, was preternaturally yellow, and that part which covered the stomach was brownish; that the external part of the stomach was extremely discoloured with livid spots; the internal part was extremely inflamed, and covered almost entirely with extravasated blood; the intestines were very pale and flabby, and in some parts especially, which were near the stomach, there was much extravasated blood; the liver was likewise sphacelated, in those parts particularly which were contiguous to the stomach; the bile was of a very deep yellow; in the gall bladder was found a stone about the size of a large filbert; the lungs were covered in every point with black spots; the kidneys, spleen and heart were likewise greatly spotted; there was found no water in the pericardium; in short, he never found or beheld a body in which the viscera were so universally inflamed and mortified. edw. nicholas. taken on oath the th day of august, , before me richard miles. the depositions and examinations of a. addington and william lewis, doctors of physick, taken on their respective oaths, the th day of august, , before me richard miles, mayor and coroner. the fat on the abdomen was observed to be near a state of fluidity. the muscles and membranes were extremely pale. the omentum was preternaturally yellow, and that part which covered the stomach was brownish. the external part of the stomach was extremely discoloured with livid spots; the internal part was extremely inflamed, and covered almost entirely with extravasated blood. the intestines were very pale and flabby, and in those parts especially which were near the stomach, there was much extravasated blood. the liver was likewise sphacelated, in those parts particularly which were contiguous to the stomach. the bile was of a very deep yellow; in the gall bladder we found a stone about the size of a large filbert. the lungs were covered in every part with black spots. the kidneys, spleen and heart were likewise greatly spotted; there was found no water in the pericardium. in short, we never beheld a body in which the viscera were so universally inflamed and mortified. it is our real opinion, that the cause of mr. blandy's death was poison. a. addington. w. lewis. susannah gunnell, servant to francis blandy, gent. deceased, upon her oath saith, that some time last week, she this examinant, gave to the said francis blandy some water gruel, and saith, that she observed that there was some settlement at the bottom of the pan, wherein the said water gruel was; and saith, that the same was white and gritty, and settled at the bottom of the pan; and saith, that this deponent, delivered the said pan, with the gruel and powder settled at the bottom thereof to mr. benjamin norton, who was apothecary to the said francis blandy. the mark x of the said susannah gunnell. taken on oath the th day of august, , before me richard miles. robert harman, servant to francis blandy, gent. deceas'd upon his oath saith, that miss mary blandy, told this examinant, that it was love-powder which she put into her father's gruel, on monday th day of august last, but that she was innocent of the consequence of it. rob. harman. taken on oath the th day of august, , before me richard miles. benjamin norton of henley upon thames, in the county of oxon, apothecary, upon his oath saith, that on tuesday the th day of august instant, he this examinant was sent to mr. francis blandy, deceased, who then complained of a violent pain in his stomach and bowels, attended with a violent vomiting and purging; and saith that on the thursday morning following, susannah gunnell, servant to the said mr. blandy, sent to this examinant, to ask his opinion concerning some powder she had found in some water gruel, part of which her master had drunk; that he took out of the said gruel the said powder, and that he has examined the same, and suspects the same to be poison, and imagines the powder which was given to the said francis blandy, might be the occasion of his death, for that this examinant believes he was poisoned. ben. norton. taken on oath the th day of august, , before me richard miles. elizabeth binfield, late servant to mr. francis blandy, deceased, upon her oath saith, that about two months ago she heard miss mary blandy his daughter say, who would grudge to send an old father to hell for £ , , and saith, that she hath heard her often wish her father dead and at hell; and that he would die next october: and saith that the said mary blandy a few days since declared to this examinant, that on monday the th day of august instant, she the said mary blandy put some powder, which she called love powder, into some water gruel, which was given to and eat by her said father: and further saith, that on the said monday her said master drank some of the said water gruel, and saith, that the said mary blandy declared to this examinant, that her said father had told her he had a ball of fire in his stomach, and that he should not be well till the same was out; and saith, that on the next day, being tuesday, her said master continued very ill, and in the evening he drank some more of the said water gruel, and was immediately afterwards taken very ill, and reached violently, and went to bed. on the wednesday, he the said francis blandy took physick, and about two of the clock the same day, the said mary blandy would have had her said father taken the remainder of the said water gruel, but the other servant would not let him take it, and was going to throw it away, when she espied at the bottom of the basen some white stuff, and called to this examinant to look at it, which she did, and the same was very white and gritty; and saith, that she heard the said mary blandy, declare to doctor addington, that she never attempted to give her said father any powder but once before, and that she then put it into his tea, which he did not drink, as it would not mix well. eliz. binfield. taken on oath the th day of august, , before me richard miles, mayor and coroner. edward herne on his oath saith, that he was a servant or writer to francis blandy, gentleman, deceased; and saith, that during the time of the illness of the said francis blandy, he, this examinant, heard mary blandy, the daughter of the said francis blandy, deceased, declare that she had received some powder, with some pebbles from captain cranstoun, which she said were love-powders; and further saith, that she told him when she received the same from the said captain cranstoun, that he desired that she would administer the same to her father. edw. herne. taken on oath the th day of august, , before me richard miles, mayor and coroner. _ii.--verdict of jury._ town of henley upon thames in the county of oxford. to wit, an inquisition indented, taken at the house of john gale, within the town of henley upon thames aforesaid, the th day of august, in the th year of the reign of king george the second, and in the year of our lord . before richard miles, gentleman, mayor and coroner of the said town, upon view of the body of francis blandy, gentleman, deceased, now lying dead, upon the oaths of james fisher, william toovey, benjamin sarney, peter sarney, william norman, richard beach, l. nicholas, thomas mason, tho. staverton, john blackman, j. skinner, james lambden, and richard fisher, good and lawful men of the said town, who having been sworn and charged to enquire for our sovereign lord the king, when, where, and by what means and after what fashion the said francis blandy came by his death upon their oaths say, that the said francis blandy was poisoned; and that they have a strong suspicion, from the depositions of the witnesses, that mary blandy, daughter of the said francis blandy, did poison and murder her said father francis blandy, against the peace of our said lord the king, his crown and dignity. in witness of which act and things, as well the coroner aforesaid, as the jurors aforesaid, have to this inquisition set their hands and seals, the day and year first above written. this inquisition was taken the th day of august, , before me r. miles, mayor and coroner. james fisher. thomas mason. william toovey. tho. staverton. benjamin sarney. john blackman. peter sarney. j. skinner. william norman. james lambden. richard beach. richard fisher. l. nicholas. _iii.--warrant for committal of mary blandy._ town of henley upon thames in the county of oxford. to wit, to the constables of the said town, and to each and every of them, and also to the keeper of his majesty's gaol, in and for the said county of oxford. whereas mary blandy, of henley upon thames, aforesaid, spinster, stands charged upon oath before me, with a violent suspicion of poisoning and murdering francis blandy, gentleman, her late father, deceased: these are in his majesty's name to require and command the said constables, that you, some or one of you, do forthwith convey the said mary blandy to his majesty's said gaol in and for the said county, and deliver her to the keeper thereof: hereby also requiring you the said keeper to receive into the said gaol the body of the said mary blandy, and her there safely to keep until she shall be from thence discharged by due course of law, and hereof fail not at your perils. given under my hand and seal this th day of august, . richard miles, mayor and coroner. appendix ii. copies of original letters in the british museum and public record office, relating to the case of mary blandy. (_hitherto unpublished._) i. lord hardwicke to duke of newcastle. (b.m. add. ms. , , f. .) wimple, sept. th, . my dear lord,--i received from mr. jones, by your grace's directions, the inclosed papers relating to the murder of mr. blandy of henley. i apprehend, by his letter, that the question, upon which your grace desires my opinion is, whether it is proper that the prosecution should be carried on by the order, and at the expense, of the crown? your grace observes by mr. pauncefort's letter, who is a gentleman of character & writes like a man of sense, that, as the relations of the deceased (who must necessarily be also relations to the daughter) are circumstanced, & seem at present disposed, no effectual prosecution can be expected from them; and therefore i am clearly of opinion that, if upon examinations there appears sufficient ground to proceed, it is necessary & will be for the honour of the government, that the prosecution should be carried on at the expense of the crown, & that mr. sharpe should be forthwith ordered to take the proper steps for that purpose under the direction of mr. attorney general. there have been several instances of such flagrant offences having been prosecuted at the government's expence. i remember two when i was solicitor & attorney general; one against two welshmen, athowe by name, for a murder in pembrokeshire; the other against a woman in oxford road, who, in concert with her gallant, murdered her husband privately, & afterwards cut his body in pieces, & packed it up in a basket.[ ] the reason which prevailed for both these orders, was that there was ground to apprehend that the criminals might have escaped justice without such an extraordinary interposition; and that interposition was much applauded by the public. in the present case it would be a reproach to the king's justice, and i am sure would create the justest concern & indignation in his majesty's own mind, if such an atrocious crime of poisoning & parricide should escape unpunished, by means of the prosecution being left in the hands of the prisoner's own relations. there is one circumstance in mr. pauncefort's letter, which deserves particular attention. he says it is thought the maid and charwoman (who i presume are two material witnesses) cannot long survive the effects of ye poison they partook of. if that be so, my opinion would carry me so far as to think, that a special commission should be sent into berkshire, some days before the next term, to find a bill of indictment there, & then the trial may be had at the king's bench bar within the next term; for otherwise no trial can be till the next spring assizes, before which time these witnesses may probably dye, if what is repeated be true. i have said all this upon a supposition that the informations & examinations lay a sufficient foundation for a prosecution, for i have not seen any copies of them. if they do not, _id neo dictum esto_. but there your grace will be pleased to refer to mr. attorney or mr. solicitor. there is another matter arising upon the enclosed papers, which ought not to pass without some notice; and that is the behaviour of mr. carre, the sheriff-depute of berwickshire,[ ] and of richard lowe, the mayor of henley's messenger. the sheriff-depute's letter contains a strong charge against lowe, & lowe in his examination, swears several odd circumstances relating to the sheriff-depute, & to some relating to himself. mr. carre is a gentleman of good character, but this matter deserves to be enquired into; and i submit it to your grace whether it may not be advisable to transmit copies of lowe's examination, & of these letters to my lord justice clerk,[ ] that he may, in a proper manner enquire into the facts, & take such examinations upon oath, as he shall think fit. this will tend to mr. carre's vindication, if he has done his duty. if there are any material circumstances against lieut. cranstoun, some further enquiry should be made after him. forgive me for adding one thing more--that it should be pointed out to mr. attorney to consider whether the crime of the daughter, who, as i apprehend, lived with & was maintained by her father, may not be petty treason. i am, always, etc., hardwicke. ii. lord hardwicke to duke of newcastle. (b.m. add. ms. , , f. .) _private_. wimple, sept. th, . my dear lord,--i have reserved for this private letter a few words relating to dr. rooke's affair.... but before i enter into that, permit me to make an observation upon the extraordinary method, which was taken to apprehend lieut. cranstoun. i see, by the dates, that the informations must have been sent up to the office when your grace was in sussex, & therefore the affair did not come before you. but surely the right way would have been to have sent a messenger, with the secretary of state's warrant. that might have been executed with secrecy, whereas, in the other method, so many persons must be apprized of it, that he could hardly fail of getting notice. tho' the crime was not treason, nor what is usually called an offence concerning the government; yet being of so black a nature, & the fact committed within the jurisdiction of england, & the person charged being then within the jurisdiction of scotland, it was a very proper case for bringing him up by a secretary's warrant, which runs equally over the whole kingdom. i say this to your grace only, & beg it may not be mentioned to anybody. but the circumstances may be worth your enquiring into; for i have heard the thing spoken of accidently in conversation; & if cranstoun got off at the time lowe supposes, it may create some clamour. may not this be a further reason for the government shewing a more than ordinary attention to ye prosecution? i am, etc., hardwicke. duke of newcastle. iii. duke of newcastle to sir dudley ryder. (state papers, dom. entry books, george ii., vol. , f. .) whitehall, sept. th, . mr. attorney general, sir,--it having been represented to the king, that the relations of mary blandy, who is confined in the castle at oxford, upon suspicion of having poisoned her father, the late mr. blandy, of henley upon thames, do not intend to prosecute her for that crime, and application having been made, that his majesty would be pleased to give orders for the prosecution of the said mary blandy; i am commanded to signify to you the king's pleasure, that you should immediately enquire into this affair; and that, in case you should find that the relations of the said mary blandy do not propose to prosecute her for the murder of her father, you should forthwith take the necessary steps for that purpose; that so wicked and henious a crime may not go unpunished. i am, etc., holles newcastle. iv. petition of the noblemen and gentlemen in the neighbourhood of henley-upon-thames to duke of newcastle, with the opinion of the attorney-general thereon. (state papers, dom. (george ii.), bundle , no. .) henley upon thames, th oct., . my lord,--we the noblemen and gentlemen in the neighbourhood of henley upon thames, and the mayor and principal magistrates of that town, having met there together this day to make farther enquiries in relation to the inhuman murder of the late mr. blandy, have unanimously agreed to return our sincere thanks to your grace for your great readiness in promoting all proper measures for bringing to justice the persons concerned in that horrid and shocking transaction. and we take this opportunity of expressing the just sense we have of his majesty's paternal goodness to his people, in directing that the person, who is now in custody, and with the greatest reason supposed to be chiefly instrumental in that uncommon scene of iniquity, should be prosecuted at his majesty's expence: and we beg leave to assure your grace, that no endeavours shall be wanting on our part, to render that prosecution successful, and to bring to condign punishment not only the unnatural daughter of that unhappy gentleman, but also the wicked contriver and instigator of this cruel design. but at the same time we take the liberty of representing to your grace, as our humble opinion, that there will be little room to hope that the original author & promoter of this villainous scheme can be brought to justice, unless his majesty will further be graciously pleased to offer by proclamation a proper reward for apprehending mr. william henry cranstoun formerly a lieutenant of marines, but now an officer in a scotch regiment in the service of the states general; and we earnestly request your grace to recommend to his majesty the issueing out such a proclamation. we are with the greatest respect, your grace's most obedient and most humble servants. macclesfield.[ ] gism. cooper. cadogan.[ ] edwd. pauncefort. james lamborn, mayor. francis mason. tho. parker. richd. miles. geo. lane parker. edwd. prassey. john freeman. john clarke. sambrooke freeman. thos. hall. william stockwood, rectr. [annexed to this petition is a copy of the same, with the names of the petitioners, also copied, and underneath them is written--] mr. sharpe received this additional paper from the duke of newcastle with directions from his grace to lay the same before mr. attorney general and to desire his opinion. _qu._ whether it may be advisable to issue a proclamation with the offer of a reward for apprehending lieut. cranstoun. this is a matter of mere discretion in his majesty, and as there is no objection in point of law to the issueing such a proclamation, so if there is any prospect of success in apprehending cranstoun by that means i should think it an advisable measure. but as he has certainly notice of an intent to apprehend him it is probable he may be gone beyond sea, to his service. if so the most probable means would be to get him seized by the order of the states general or any other state where he may be found to be. d. ryder, oct., . [endorsed] the noblemen & gentlemen in the neighbourhood of henley upon thames, and the mayor & principal magistrates of that town to the duke of newcastle. oct. th, . for your opinion hereon. mr. attorney general. gs. sharpe. v. lord hardwicke to the duke of newcastle. (b.m. add. ms. , , f. .) wimple, oct. th, . o'clock p.m. dear cousin,-- ... i enclose the representation of the noblemen etc., in the neighbourhood of henley relating to the issueing a proclamation for the apprehending of lieut. cranstoun. it is impossible for me to judge whether this is a proper case for issueing such a proclamation, without seeing the examinations & proofs of his guilt, & of the probability of his having fled for it. but, if there is proper evidence of his guilt, & a probable one of his flight, i think it is a just foundation to issue such a proclamation in so flagrant a case. i submit to my lord duke whether he will not think it proper to refer the papers to mr. attorney general.... i am, etc., hardwicke. vi. earl of marchmont to duke of newcastle. (b.m. add. ms. , , f. .) redbraes castle, th oct., . my lord,--in obedience to your grace's commands to the lord justice clerk, informing him it was his majesty's pleasure, he should enquire upon oath into the conduct of mr. carre of nisbet advocate, our sheriff, in relation to the apprehending of mr. cranstoun; i yesterday waited on his lordship at duns; & gave him an account of what i knew of that matter upon oath. i heard some other examinations taken at the same time, & have the pleasure to see that your grace will receive entire satisfaction from this inquiry. i cannot omitt my lord, upon this occasion expressing to your grace the grateful sense all his majesty's faithful subjects here have of your goodness in ordering this enquiry to be made, without which the misrepresentations contained in lowe's affidavit, with the justice of peace's commentary, might have lurkt & crept about unobserved in the south of england, & his majesty's subjects here could have had no opportunity of removing the injurious imputations cast upon them. my lord justice clerk has spared no pains to make the account compleat, and it gives me particular pleasure my lord that your grace will thereby be enabled to form a character of mr. carre from vouchers free from all suspicion of that partiality which perhaps might be thought to attend my recommendations of a friend & relation. your grace will see that mr. carre came from his own house with the lord justice clerk, in his lordship's post-chaise, to dine, by a previous appointment, at my house, which is only distant from his own half an hours driving; & this in order to have the advice & assistance of the lord justice clerk. i am persuaded your grace will think, you could not have wished him to choose a more judicious adviser, or a more sagacious inspector into his conduct. upon examination your grace will find, that the lawyers here will reckon mr. carre rather to have stretched a point to get over the provision in our act of parliament, in order to grant his warrant, than to have affected any doubt, or dilatoriness upon the occasion. and that those scots lawyers who have not studied our law with the same superiority of capacity & genius that mr. carre has, would hardly have consented to give a warrant, upon the grounds mr. carre granted it.... i am, etc., marchmont. duke of newcastle. vii. duke of newcastle to mr. pauncefort. (sate papers, dom. entry books (george ii.), vol. , f. .) whitehall, oct. st, . mr. pauncefort, sir,--having by his majesty's command, directed an enquiry to be made into the conduct of mr. carre, the sheriff of berwickshire, upon the application that was made to him for causing lieut. cranstoun to be apprehended; and such an enquiry having been accordingly made by the lord justice clerk; i send you inclosed a letter, which i have received from his lordship together with the several examinations that have been taken upon that occasion.--i am, etc., holles newcastle. _p.s._--i send you the original papers above mentioned, which you will be pleased to return to me as soon as may be. viii. mr. pauncefort to duke of newcastle. (b.m. add. ms. , , f. .) early court, nov. th, . my lord,--i have had the honour to receive from your grace, the lord justice clerk's letter, and the examinations that have been taken in persuance of an enquiry made into the conduct of mr. carre the sheriff of berwickshire, upon the application that was made to him for causing lieutenant cranstoun to be apprehended, & i should have acknowledged the receipt of them by the last post, but i did not return from a commission of the navigations, held at a remote part of the county, till wednesday. i have in consequence sent an express to the earl of macclesfield, to desire a meeting of the corporation & the neighbouring gentlemen of the county of oxford at henley; in order to lay before them the several examinations; and its a particular happiness to me that i am in this instance employed to represent to the gentlemen of the county the watchfulness & unwearied attention of the crown to the vigorous execution of the laws, by having ordered this strict & immediate enquiry to be made into the suspected neglects & delays of the sheriff, tho' grounded upon a single information; as likewise that i am made instrumental in the justifying as well as accusing the conduct of the sheriff; that the complaints of the messenger were without any foundation; & that every thing was done by the sheriff that was consistent with a cautious magistrate. i shall in obedience to your grace's commands return the examinations to you. i am, etc., edwd. pauncefort. ix. mr. wise to mr. sharpe, solicitor to the treasury. (state papers, dom. (george ii.) bundle , no. .) [no date.] sir,--i was favoured with yr two last letters, and also with yr answer to my letter of the th novr. last, wch i acknowledged in another letter wch i wrote to you from mr. aldworths at stanlake, wherein i gave you an acct. of a threatening letter from cranstoun to betty binfield, and wch i find you had sent up to you by lord macclesfield. on receipt of your last i set out yesterday morning to ld. macclesfields, where i lay, and came this day to oxford, and immediately on my arrival went to the castle where i found miss blandy with the very same iron on her leg wch i saw rivetted on myself when last here, and wch i now believe has never been off since, for her leg is considerably swelled, and the red cloth wch was round the iron before has been cut off to give her room, but it is still so close, as renders it impossible to be slipt over her heel. i also find by what i saw myself and by the report of a gentleman or two in whom i can confide, that wisdom has kept a much stricter guard over miss blandy ever since i was here before than he used to do, and that she has not been permitted to walk in the garden once since. however i repeated the contents of your letter to him, and remonstrated how very absurd it wd be in him now, not to continue ye strictest watch over a person whose trial will be made a matter of so great consequence to the publick, and on whose safe custody, for that purpose, his future character & livelihood would intirely depend. i also sent for mrs. deane (the person who is with miss blandy) into the room with wisdom, and told her that it would be impossible for miss blandy to make an escape without her privity & assistance, and that if such a thing shd happen, not only the goaler wd be answerable for what ever act she did towards it, but that she herself wd also be imprisoned for life etc, so that upon the whole i dont imagine there is now any fear of her making her escape. parson swinton is very angry wth the freedom the letter writer has taken with (his) name, and is endeavouring to find out the author of that and many other reports of the same kind. it is owing to his credulity of her innocence, that these jokes have been spread, and i find that he is a great favourite of miss blandy's. i will endeavour to get the briefs settled in the best manner i am able and as soon as i have done, will send you a copy, and am--wishing you many happy years. sir, yr obliged humble servt. edwd. wise. _p.s._--i promised to write to ld. cadogan who went to town yesterday, but as the post is this instant going, must beg you to acquaint his lordship all is safe. [addressed] to john sharpe esq. solicitor to the treasury at his chambers in lincolns inn, london. x. mr. sharpe to mr. wise. (state papers, dom. (george ii.) bundle , no. .) dear sir,--i beg leave to trouble you with another lre i have reced from lord macclesfield by last night's post, and which shews pretty plainly that the threatning lre i gave you yesterday was wrote and sent by cranstoun and that there is great reason to believe that cranstoun is lying concealed either here in london or in the north--i beg you will lay the enclosed before his grace with my most dutifull respects--and believe me to be with the most real truth and esteem, dr sir, your most obliged and ever faithfull hble servt., jn. sharpe. friday morning, th decr., . xi. examination of francis gropptty. (state papers, dom. (george ii.), bundle , no. .) the examination upon oath of francis gropptty of mount street, in the parish of st. george hanover square taken this rd day of febry . the examt says that upon the first day of september last he was sent for by the revd. mr. home to his lodgings in the haymarket, who told the examt. that a gentleman of his, mr. homes, acquaintance, was going to calais, & as he spoke no french, desired the examt. to go with him. the examt. asked who it was, & after some hesitation mr. home told him it was capt. cranston bror. to lord cranston who was accused of having sent poison to a miss blandy, who was suspected to have poison'd her father; but that he was inocent, & only wanted to get out of the way till his tryal came on, when he would surrender himself. the examt. says he made an objection to going & told mr. home, that as he had expectations, from the recommendations of lord home[ ] and sir walter blacket, to the duke of grafton, of being made one of the king's messengers he was afraid it might hurt him, but mr. home assured him that he could not be brought into the least trouble, and added that he would oblige him, mr. home, ld. home & all the family & that for his satisfaction he would give him a note to capt. alexander hamilton, who would assure him of the same. that the examt. went to capt. hamilton, who told him that he knew where capt. cranston was & that if the examt. would see him safe at calais, he would very much oblige lord cranston, ld. home & all the family. the examt. asked capt. hamilton if there had been any proceedings against capt. cranston or if any orders were given to stop him at dover? capt. hamilton said he would enquire, & the next day sepr. nd told the examt. he had enquired & that there had not been any proceedings against capt. cranston nor were there any orders to stop him at dover. the examt. says that he lived with lord home several years & now does business for him; that he was willing to oblige his lordship & not doubting from the assurances of mr. home yt he was doing a right thing, consented to go to calais with capt. cranston. that upon the said nd of september capt. hamilton brought capt. cranston to the examt's. house; that capt. cranston said he had been rob'd in his way to town of his money & portmanteau & seem'd in great distress. that the examt. by the direction of capt. hamilton bought for capt. cranston such necessaries as he wanted & capt. hamilton went to lord ancrum[ ] to borrow twenty pounds to defray the expence of the journey & repay the examt. the money he had expended. that upon his return he told capt. cranston that lord ancrum wd not lend him the money; says, that capt. cranston cried very much & said for god's sake dear hamilton get money somewhere & get me abroad. that the examt. seeing the great distress both of capt. hamilton & capt. cranston, said that if ten guineas wd. be of service he wd. lend capt. hamilton that sum, which he accordingly did & took capt. hamilton's note of hand, which is still unsatisfied. that he set out with capt. cranston in a post chaise for dover, where they arrived the next morning sept. rd about o'clock. that they went to bed at the post house about o'clock in the afternoon in the same room, & about half an hour afterwards the capt. of the packet came into the room & said he was informed they were going to calais & desired they would go with him, which they agreed to & the next morning went with him to calais & paid a guinea for their passage.--says they had no discourse at all with the capt. of the packet during the passage. the examt. says he took lodgings & agreed for board for capt. cranston at calais at the rate of fifty livres a month & upon the th sept. returned in the same packet to dover. that upon his passage back the capt. of the packet said he believed the person who went with the examt. to calais was very glad to be landed, for that he seemed very uneasy; the examt. answered may be so, & no other discourse happened upon the subject. that the capt. of the packet observed that he thought he had seen the examt. at harwych, the examt. said very likely for that he had passed from thence to holland with his master lord home during the war. the examt. absolutely denies that he passed or attempted to pass for a king's messenger, or that he mentioned the name of his grace the duke of newcastle, nor was his grace's name mentioned; nor did any discourse what so ever pass about messengers. that upon his return to london he waited upon mr. home to acquaint him that he had landed capt. cranston safe at calais. mr. home expressed himself very much obliged & assured the examt. he would represent to his brother & lord cranston the trouble he had had, & did not doubt but they would be equally obliged & reward him very well. the examt. said he did not expect any reward, that what he had done was out of gratitude to lord home & his family & was very glad he had had it in his power to oblige them: & the examt. said the same to capt. hamilton & never kept it a secret from any body, but talked of his having gone over with capt. cranston in common discourse & before anybody. that the examt. made out an acct. of the expences he had been at & delivered it to capt. hamilton, which amounted, with the money lent, to eighteen pounds, for which sum capt. hamilton gave him a bill of exchange upon ld. cranston, which bill the examt. sent to scotland to lord cranston, who having kept it near six weeks return'd it unpaid; and the examt. has not yet recd. the money. and lastly the examt. says that he arrived in england with his master at the end of the late war, & has not been out of england since that time except to calais with capt. cranston as aforesaid. francis gropptty this rd feb., . taken upon oath; before l. stanhope. appendix iii. a letter from a clergyman to miss mary blandy, now a prisoner in oxford castle; with her answer thereto. as also miss blandy's own narrative of the crime for which she is condemned to die. (no. of bibliography, appendix xii.) (the original copy of this letter, in miss blandy's own handwriting, for the satisfaction of the public, is left with the publisher.) march , . reader,--condemn no person rashly. thou has already, perhaps, passed sentence upon this unfortunate. but remember, that god alone knows the secrets of the heart; and that circumstances spring many times from motives which it is impossible for man to discover. the following letter was written to this unhappy lady by a clergyman,[ ] after her receiving sentence of death. a letter to miss blandy. march , . dear miss,--had it been at my own option, i never would have chose to be the least concerned in your unhappy affair; but since divine providence, without my own seeking, has thought fit to order it otherwise, i shall, from obligations of compassion and humanity, offer some things to your serious consideration. your power of receiving benefit from my advice, is but of short duration; may god grant that you may rightly use this. that you believe in god, in the immortal nature of the soul, in jesus christ, and in a future state of rewards and punishments, i am willing to persuade myself. as to the unworthy man who has tempted you to your ruin, i have good grounds to believe him to be an infidel. if he has communicated such principles to you, to render you more capable of executing his wicked purposes, your persisting therein will ruin your poor soul for ever. the moment you enter into that awful state of separation, you will be eternally convinced of your error. the very devils believe a god, and tremble. you will, perhaps, express surprise at my entertaining a doubt of this nature. what? you that have been so constant at public worship, that have so frequently participated of the most sacred rite of the christian religion, to be thought an infidel? alas! miss, externals are but the husks of piety; they are easy to the hypocrite. the body may bow down in the house of god, yet the soul do homage to belial. god forbid, that this should touch you. and indeed to be sincere, when on the one hand i view the arguments of your guilt, and, on the other, behold your strong assertions of innocence, to the hazarding of the soul, if untrue, i am greatly perplexed, i know not what to say or believe. the alternative, i presume, is, you are either a believer and innocent, or an infidel and guilty. but that holy religion which i profess, obliging me, in all cases of doubt, to incline to the most charitable construction; i say, that i am willingly persuaded, that you believe in the above mentioned truths, and are in some degree innocent. you have, dear miss, applied to temporal counsel, with regard to the determination of your body. they have failed. your life is forfeited to justice. you are already dead in the eye of the law. oh! miss, the counsels which my poor understanding gives, is spiritual; may they be more successful: may god grant that the fate of your soul may not resemble the fate of your body! may it not perish and die for ever! now, miss, you must necessarily be in one of these two situations; you must either be innocent, by not designing to hurt your father; or you designed to kill your father, and are guilty, and conceal your guilt for private reasons. permit me to offer something upon each of these heads. if it should be the case, that you are innocently the cause of mr. blandy's death, which heaven grant! if you harboured not a thought of injuring your unhappy father, you have the greatest of all comforts to support you. you may think upon that last and awful tribunal, before which all the sons of adam shall appear, and from which no secret is hid. there will be no injustice. innocence will be vindicated. the scheme of providence will be then unfolded. there your patience under your sufferings and resignation to the decrees of heaven will be rewarded. your errors and failings god will pity and have mercy upon; for he remembers whereof we are made. you may face the ignominious tree with calmness. death has no stings to wound innocence. guilt alone clothes him with terrors (to the guilty wretch he is terrible indeed!). and at the resurrection, and at the last day, you will joyfully behold jesus christ your saviour, join the triumphant multitudes of the blessed, and follow them into the everlasting mansions of glory. the other point i am about to speak to, is upon a supposition of your guilt. god direct me what to say! if you repent, you will be saved. but what repentance can be adequate to such crimes? o miss! your infamous end is a satisfaction due to human laws. but there is another satisfaction which god expects to be made for such a dreadful violation of laws divine. once, miss, you had two fathers to provide for and protect you; one by the ties of nature, the other by the bonds of grace and religion. and now your earthly parent is your accuser, and your heavenly one your judge. both are become your enemies. good god! what deep distress is this! where can misery like this find comfort and relief? o miss! the only anchor which can preserve your soul from perishing, is your blessed saviour. believe in him; whatsoever you ask in his name, believing, god will grant. for to them that believe, all things are possible. unburthen your whole soul. pour out your fervent prayers to god. remember, that infinite mercy is glorified in the vilest sinners. if there are any accessaries to this horrid crime, discover them. make all possible reparation for injuries you have done. heartily forgive, and pray for your enemies and more particularly for all concerned in the prosecution against you. detest your sins truly, and resolve to do so for the time to come, and be in charity with all men. if you perform these things truly and sincerely, your life, which sets in gloomy clouds, shame and darkness, may, by the mercies of god, rise in glory, honour and brightness. but perhaps, miss, to your everlasting hazard, you will not confess your guilt, for some private reasons. and what must these be? you may possibly then imagine, that if you confess your crime to god, you are not obliged to confess to the world. generally speaking god is the sole confessor of mankind; but your case is a particular exception to this rule. you will want the assistance of god's ministers. but how is it possible for you to receive any benefit from them, if you do not represent to them the true state of your soul without any disguise? a secret of this nature, smothered in the breast, is a fire which preys upon, and consumes all quietness and repose. consider too the imminent danger of a lie of this nature; consider the justice due to your accusers, to your judges, and to the world. but you will say, confession of my crime cuts off all hope of royal mercy. dear miss, do not indulge yourself in such a thought. prepare for the worst. consider how pernicious flattery of this nature is. remember that god is only a god of mercy in this; in another life, he is a god of justice. i can hardly think that shame has any share in the concealment of your guilt; for no shame can exceed that which you have already suffered. besides, confession is all the amends you can make; and mankind know experimentally how frail and imperfect human nature is, and will allow for it accordingly. and thus, dear miss, have i wrote to you, with a sincere view to your everlasting happiness. if during this dismal twilight, this interval between life and death, i can serve you, command me. the world generally flies the unfortunate, rejoices in evil, triumphs over distress; believe me glad to deviate from such inhumanity. as the offices of friendship which you can receive from me are confined to such a short period, let them be such as concern your everlasting welfare. the greatest pleasure i can receive (if pleasure can arise from such sad potions), will be to hear that you entertain a comfortable assurance of being happy for ever. which that you may be, is the fervent prayer of, etc. whether or no this gentleman, in the above letter, has not urged the matter home to miss blandy, is submitted to the judgment of the public. here follows _verbatim_ her answer. monday, march , . reverend sir,--i did not receive your's till sunday night late; and now so ill in body, that nothing but my gratitude to you for all your goodness could have enabled me to write. i have with great care and thought often read over your kind advice; and will, as well as the sad condition i am in will give me leave, speak the truth. the first and most material to my poor soul is, that i believe in god the father, and in his blessed son jesus christ, who, i verily believe, came into the world to save sinners; and that he will come again to judge the world; and that we must all give an account in our own bodies, and receive the reward of a good or ill spent life; that god is a god of justice, but of mercy too; and that by repentance all may be saved. as to the unworthy man you mention, i never heard finer lessons come from any one. had he, sir, shewn really what he may be (an infidel), i never should have been so deceived; for of all crimes, that ever shocked me most. no, sir, i owe all my miseries to the appearances of virtue; by that deceived and ruined in this world, but hope through christ to be pardoned. i was, and never denied it, the fatal instrument; but knew not the nature of, nor had a thought those powders could hurt. had i not destroyed his letters, all must have been convinced; but, like all the rest, he commanded, and i obeyed and burnt them. there is an account, as well as i was able to write, which i sent to my uncle in london. that i here send you. god knows never poor soul wrote in more pain, and i now am not able hardly to hold my pen. but will not conclude this without explaining the true state of my mind. as i did not give this fatal powder to kill or hurt my poor father; i hope god will forgive me, with repentance for the ill use i have made of that sense he gave me, and not be for ever angry with me. death i deserve, for not being better on my guard against my grand enemy; for loving and relying too much on the human part. i hope (when all is done that friends can do for me to save that life which god has given me, and which if to last these hundred years, would be too short for me to repent, and make amends for the follies i have committed) i shall have such help from my god, as to convince my poor friends i die a christian, and with hopes of forgiveness through the merits of our advocate and mediator jesus christ. i beg, my dear sir, you will excuse my writing more, and will believe i am truly sensible of your goodness to me. may god bless you, sir, and send you happiness here and hereafter. i beg my duty to my poor uncle; pray him to forgive, and pity, and pray for me. i beg my tenderest wishes to mrs. mounteney; and if she can serve me with the bishop of w----[ ] or any other, i know she will do it. pray comfort poor ned hearne, and tell him i have the same friendship for him as ever. and pray, sir, continue your friendship and good wishes to, reverend sir, your truly affected, much obliged humble servant, mary blandy. _p.s._--i beg, for very just reasons to myself and friends, that this letter and papers may soon be returned to me; that is, as soon as you have done with them. you will oblige me, if you keep a copy of the letter; but the real letter i would have back, and the real papers, as being my own handwriting, and may be of service to me, to my character after my death, and to my family. there is no occasion of hinting to the judicious reader that in this letter it is plain that miss blandy twice solemnly declares her innocence. but let us now proceed to miss blandy's own relation of an affair which has so much engrossed the attention of the public. miss blandy's narrative referred to in the foregoing letter:-- o! christian reader! my misfortunes have been, and are such, as never woman felt before. o! let the tears of the wretched move human minds to pity, and give ear to my sad case, here wrote with greatest truth. it is impossible indeed, in my unhappy circumstances, to recollect half of my misfortunes, so as to place them in a proper light. let some generous breast then do that for the miserable, and god will reward goodness towards an unhappy, deceived, ruined woman. think what power man has over our sex, when we truly love! and what woman, let her have what sense she will, can stand the arguments and persuasions men will make use of? don't think that by this i mean, that i ever was, or could have been persuaded to hurt one hair of my poor father's head. no; what i mean is cranstoun's baseness and art, in making me believe that those powders were innocent, and would make my father love him. he gave my father some himself more than a year before he died, and said, when he gave it him, that he (cranstoun) had took several papers of it himself. i saw nothing of any ill effects from these powders on my father; nor did he complain of any one disorder, more than what he has ever been subject to above these ten years, the gravel and the heartburn; but never complained of the heartburn, except when he had the gravel coming on him; and he never was less afflicted with those disorders than during the last year of his life, in which he never took one medicine from his apothecary, as he made oath in court. mr. cranstoun, soon after he gave these powders to my father, said to me, do you not see that your father is kinder to me? i now will venture to tell him, that i cannot get the appeal lodged this sessions (meaning his affair in scotland); upon which he went to my father's study, and told him. they both came out together in great good humour, and my father said not one word against my waiting another sessions. mr. cranstoun came to our house in the beginning of august, or latter end of july, staid with us some months, and then he said he was obliged to go for scotland. my father seemed not pleased with him at first, but they parted in great friendship, i thought; and i received a letter from cranstoun (which is now among my papers) full of respect and tenderness for my father. but soon after he was gone my father, who had either heard some ill of him, or was tired of so long an affair, told me to let mr. cranstoun know, that i should wait the next sessions; but he must not come to his house till his affairs in scotland were settled. i obeyed his commands, and had a letter full of love, and seeming misery, back in answer to mine; that he found that he had lost my father's love, and feared he should mine too. he got his mother and sisters to write to my father, and seemed to do all in his power to force him to love him. some time after this he sent me word, that he had met with his old friend mrs. morgan in scotland, and that he would get some of those powders he had before; and begged of me, if i loved him, to give them to my father; for that they would make him kind to us again in this affair, and make him stay with patience till the next sessions; when, upon his word, the appeal should be lodged. i wrote him back word, i did not care for doing it, lest it should hurt my father's health. he wrote me word, that it was quite innocent, and could not hurt him; and how could i think that he would send any thing to hurt a father of mine? and that self-interest would be reason enough lor him to take care of his health. now, in this place, i must beg to clear up one thing, that i imagined my poor father rich, and that mr. cranstoun did the same. as to myself, it is, by all that's good, false. i have often told mr. cranstoun, i knew my father was not worth what the world said; but that if he lived i did not doubt but he would provide for us and ours, as his business was so great, and life retired. i then supposed that mr. cranstoun meant, by saying, that his own interests would make him careful, to refer to such discourse. mr. cranstoun's having then such strong reasons to know how necessary my father's life must be, and i believing his honour to be so great, and that his love was still greater; these were the reasons of my not mistrusting that the powder would hurt my father, if i mixed it with his tea. it not mixing well, i threw it away, and wrote him word, i would not try it again, for it would be discovered. this they bring against me. but is it not, reasonable to imagine, that if any person was to discover that a powder had been given them, to force them to love anyone, would not a discovery of this nature produce a very different effect? would it not fix resentment? this would have been, at that time death to me; such was my opinion of cranstoun, and for this reason i used the aforesaid words. but to proceed. on my writing to mr. cranstoun, that it would not mix in tea, he told me to mix it in gruel. i received the powders in june; but did not put any into his gruel till the th of august; when i fatally obeyed mr. cranstoun's orders, and was innocently the instrument of death, as they say, to the best of fathers; brought disgrace to my family, and shameful death to myself, unless my hard case, here truly repented, recommends me to royal pity, clemency and compassion. and as i here declare, and as i look upon myself as a dying woman, i never did design to hurt my father, but thought the powder innocent, as cranstoun told me it was. let me be punished for my follies, but not lose my life. sure, it is hard to die for ignorance, and too good an opinion of a villain! must the falsities and malice which i have been pursued with, prevail so far as to take away my life? o consider my misfortunes, and indeed it will fill your eyes with tears; you must pity me, and say, never was poor soul so hardly used. but peace, my heart. i gave my father the powder on monday night; on tuesday he complained. i sent for the apothecary; who came, and said he would send him some physic. in the evening my father said he would have some water gruel. i never went out to order this, and knew not whether it was the same or no as he had on monday, as that he drank on monday was made either on saturday or sunday. however, on the wednesday my father took physic, and was better; came all thursday down into the parlour, as also on friday; mr. norton, by my desire, all this time attending him very often. and mr. norton did in the court declare, that i was the person that did send for a physician, and would have sent before, if thought necessary. when i found my father so ill, i sent, unknown to him, for dr. addington. the doctor said, he believed he was in great danger. i desired dr. addington to attend him, and come the next day; which he did. on monday morning going into my father's room early (for though i never from his first disorder left him long in the day, yet his tenderness would not let me sit up all night with him), i was denied to see him. this so surprised and frightened me, that i cried out, what? not see my father? on which i heard my father reply, my dear polly, you shall presently; and some time after i did. that meeting and parting, and the mutual love, sorrow, and grief, is truly described by susanna gunnel; though poor soul she is mistaken in some other respects. i was after this confined in my room by dr. addington's own orders; during which confinement, as i am informed, my father wanted to see some body, and it was imagined to be me. but, alas! i was not suffered. the night before he died, my father sent his blessing to me, with his commands to bring that villain to justice. i sent him answer back, i would do all in my power to hang that villain, as he rightly called him. but the usage which i received in my father's house, unknown to him i am sure, is shocking to relate. my going to listen at his door, the only comfort left me, to hear if he was asleep was denied me. all my keys were taken from, me--my letters--my very garters. my maid-servant never came near me, helpless as i was by grief and fits. this i bore patiently, being fearful of disturbing my father, as our rooms joined. the man who was with me can witness to my sufferings, how often i wished for instant death to take me, and spare my dear father, whom never child loved better; whose death alone, unattended with these misfortunes, would have been an excessive shock to me. when dr. addington, and dr. lewis (who was called in it seems) came into the room, and told me, that nothing could save my ever dear father; for a considerable time i sat like a stone image; and then told them, that i had given my poor father some powders which cranstoun had given me, and feared those had hurt my father, though cranstoun assured me that they would not. it is not in human nature to declare what i suffered at that time. god grant that no one ever may again. when my father was dead, though mistress of myself, my keys, servants, two horses in the stable, all my own; yet i never quitted my room. though none dared to molest me, i never stirred. they say, that i walked about my room for hours; but i hardly remember anything. much is now said of my trying to bribe my servants. how contrary to truth! as for bribing betty my cook; of all my servants she was my greatest enemy throughout my misfortunes; and an attempt to bribe her must surely be the strongest instance of lunacy, of one not in her right mind. i own i should have been glad not to have gone to jail; as who would not? but then i would with pleasure have resigned myself up at the assizes, and stood the chance of life or death. i did not at that time imagine, that i had such enemies, or that human nature could be so wicked and abandoned. on the thursday my father was to be opened. in the morning suzanna gunnel sent for me, being indisposed: when i saw her, she begged that i would bring mr. cranstoun to justice, which was the request and command of her dying master; and that if anything gave him concern in his last moments, it was an apprehension of his escaping, being a man of quality, and interest among the great. i replied that i would do all in my power, and went down into my room again. soon after dr. lewis came into my room, and i found by him that my poor father's body was to be opened as that morning. as soon as he was gone, i could not bear to stay in the house, but walked out. let reason judge whether i intended an escape. my dress was an half-sack and petticoat, made for a hoop, and the sides very long; neither man nor horse to assist me; and, as they say, i walked as slow as foot could fall; half the town at my heels; and but for the mercy of a woman, who sheltered me in her house, had perhaps lost my life. when i was sent for back by the justices, the gentlemen who conveyed me to my house, witnessed that i thanked him. surely this cannot be interpreted an attempt to escape. in consequence then of the words which, during these melancholy and distracting scenes, i had spoke to dr. addington, that i was innocent of the nature of the powders, but had given them to my father, i was sent to prison, where i was till my trial, and am now in safe custody. the untruths which have been told of me, the messengers sent after me, to see if i was safe, the putting me in irons (though so weak and ill, that my own body was too much to carry about), the baseness and wickedness of printing the depositions to hurt me with the jury; under all this i bore up from knowing my innocence. but give me leave to mention what happened at my trial. i was brought to the bar; and must do the judges, and all the gentlemen of the law, that justice, that they used me as a gentlewoman should be, though unfortunate. i must, however, observe, that when the judges read and summed up the evidence, or indeed when anything was said in court, there was such a noise, that the jury, i am sure, could not hear the evidence; and i hope i shall be forgiven, if i say, that some of them seemed not to give that attention i think they ought. nay, the judges were often obliged to speak for silence in the court, and bid them for shame let the jury hear and attend. when all the witnesses were examined on both sides, the judge gave his charge like a man fit to hold the sword of justice; and my council and friends were in great hopes for me. but, most surprising treatment! without going out of the court, without being any time consulting, their verdict was, guilty! god's will be done. my behaviour at my trial, and when sentence was passed, i leave to the world. my enemies, as they have done all along, may misinterpret it, and call innocence and christian courage hardened guilt. but let them know, that nothing but innocency could stand the shock of such repeated misfortunes, and prospect of death. o christian reader! remember what blessings will attend you for defending the orphan, the injured, and the deceived. and if the dead are sensible what the living do; what prayers must not dear parents pour out before the throne of mercy for such charity, for endeavouring to rescue their only child and much-loved daughter from a shameful death. drop pen; my spirits, harrassed out with sorrow, fail. god almighty preserve you and yours from such misfortunes, and receive my poor soul into the arms of his mercy, through jesus christ. amen. whosoever thou art, whose eyes drink in this sad and moving tale, indulge one tear. remember the instability of sublunary things, and judge no man happy till he dies. appendix iv. miss mary bland's own account of the affair between her and mr. cranstoun, from the commencement of their acquaintance in the year to the death of her father in august, , with all the circumstances leading to that unhappy event. (no. of bibliography, appendix xii.) my acquaintance with mr. cranstoun, who was lieutenant of a regiment of marines, commenced at lord mark kerr's,[ ] in one of the summer months, as i at present apprehend, of the year . at first we entertained of each other only sentiments of friendship, i being upon the point of marrying another gentleman; which, for some prudential reasons, was soon put off, and at last came to nothing. some months after our first interview, mr. cranstoun left henley; and, about the following summer, returned to his uncle, lord mark kerr, who lived at a house he had hired in that town, called paradise. after his arrival at henley, our friendship continued for some time; in one part of which i told him, as a friend that wished me well, of another advantageous match that had been proposed to me; but at the same time declared to him, that i was afraid the gentleman was not formed to make me happy. upon this, he asked me, "whether or not i preferred mutual love to the grandeur of life?" to which i replied, "i preferred the man i loved and esteemed to all others." this induced him to make a proposal to me in the following terms: "miss blandy, i have upon my hands an unhappy affair, which to you i have made no secret of; i can assure you, before i speak what follows, i am not now married, nor never was; tho' by the nature of the laws of scotland, i am involved in some difficulties brought upon me by that affair, out of which it will be some time before i can extricate myself. do you think you could love a man well enough to stay till this affair be brought to a determination? i have, added he, wished such a proposal might take effect from the very first moment that i saw you; but my honour would not permit me to make it in form, till the invalidity of my pretended marriage did appear to the whole world." to this i made no reply, as lord mark kerr at that instant came into the garden; mr. cranstoun and i being then at his house. the next day mr. cranstoun came to my father's, and renewed the discourse; on which i told him, that "if my papa and mamma would approve of my staying for him, i readily consented thereto." after this he took the first opportunity of speaking to my mamma upon the same subject; and he received from her the following answer: "sir, you do my daughter an honour; but i have understood, that you have a perplexing affair upon your hands, and it is reported that you are married." he then made answer, "madam, as i have a soul to be saved, i am not, nor ever was." to which she replied: "very well, mr. cranstoun, i will take your word as to that; but i have many more reasons to give you why i disapprove of your proposal. in the first place, you are a man of fashion., and i believe your fortune small; my daughter has been brought up with great rare and tenderness, and as neither of you seem to me cut out to live upon a small fortune, you would both like to live in a manner suitable to your station." to which she added, "i can assure you, mr. cranstoun, had my daughter £ , and in my disposal, i would give her to you with the greatest pleasure. there is one thing, continued she, i think, mr. cranstoun, i ought to inform you of. notwithstanding the world reports mr. blandy to be able to give his daughter down a handsome fortune, i am sure he cannot do it; tho' i was ever made a stranger to his circumstances." to which he replied, "if mr. blandy will give me his daughter, i shall not trouble him about that." this, as far as i can recollect, is the substance of what passed on mr. cranstoun's first making his addresses to me. after the last conference, my mamma and mr. cranstoun had several others to the same effect; the last of which was followed by mr. cranstoun's journey to bath. he attended his uncle. lord mark kerr, thither; but before he left henley, he obtained my father's leave to correspond with me. he went to bath, if my memory fails me not, in the latter season of the year ; after i had been above a year acquainted with him. he staid at bath about five or six weeks; and, after his return to henley, lived at our house, with my father's and mother's approbation, five or six months. at the end of this term, he went up to town; and, within a few days after his arrival there, wrote to my father, to beg; the favour of him to comply with his request, that i might be permitted to stay for him till his unhappy affair with miss murray (for so was his supposed wife called) was finally determined. this, he said, he was assured, by the best judges, must end in a little time with certain success: which, as he added, would make him the happiest man living; and he doubted not but he should communicate the same degree of happiness to me, by the tender treatment i should meet with from him. my father gave the letter to me with a smile, and told me, "that was a letter which he believed i should read with some pleasure." after i had read it, i said, "what will you answer it, sir?"' to which he replied, "not at all." upon this, looking earnestly at him, said, "not at all, papa?" "no," replied he, "you shall answer it yourself." "in what manner, sir?" subjoined i. "as," returned he, "is most agreeable to you." to which, however, he thought fit to add, "tho' i give you leave in this manner, yet if you are prudent you will not think of having a man of quality without any fortune, when you may marry a man with a very ample one, of as good a gentleman's family as any in england: but, continued he, if you can be contented, i'll do what i can to make you happy with him. i believe he loves you, and mutual love must make the marriage-state happy." mr. blunt, the owner or proprietor of paradise, the house inhabited by lord mark kerr, was then at my father's, and knew, if i am not mistaken, from whom the letter came. be that as it will, no more passed on this subject at that time. the next post i informed mr. cranstoun, that "my papa had given me leave to write to him whatever i pleased; in consequence of which i should take the liberty to assure him, that i would stay for him, and accept of no other offer till his affair was brought to a decision; and that if it was not determined in his favour, i doubted whether i should accept of any ever after." tho' i did not see mr. cranstoun for several months, our correspondence still continued; letters passing and repassing between us almost every post. during this interval, my mamma went to a place called turville court, to the house of one mrs. pocock; where she was seized with a disorder, that it was thought would have proved fatal to her. through the whole course of her illness, when in her senses, she constantly cried out, "let cranstoun be sent for:" on which, i at last sent for him. he was then at southampton; which, by the miscarriage of one of his letters, i was ignorant of. but the very night he reached london, he set out for turville court, and arrived there about ten o'clock at night. as soon as he came to mrs. pocock's house, he was instantly taken up into my mother's chamber, which greatly refreshed and revived her; for she immediately raised herself up in bed, took him about the neck, and kissed him in the most affectionate manner. at the same time, she said, "my dear cranstoun, i am glad you are come; i now shall grow well soon." nor would she take any medicines, but from his hand, saying, "my poor nurse must not be jealous (meaning her daughter) since loving him i knew is pleasing her." the next day she got up, and sent for mr. cranstoun into her room; saying, "this i owe to you, my dear cranstoun; your coming has given me new health and fresh spirits: i was fearful lest i should die, and you not here to comfort that poor girl, how like death she looks!" my father came thither that day to see his spouse, and took mr. cranstoun, who met him in the hall, up in his arms, saying, "i am glad to see you here, how does my wife?" upon mr. cranstoun's telling him, "she was much better, and up," he said, smiling, "i suppose they will both of them (meaning his wife and daughter) be much better, now you are come." my father seemed in great good humour all that day. the next time he came (for he returned home at night) he appeared much out of humour at the great expence incurred by my mother on the foregoing occasion, and desired her to think of removing to her own house; since in that case, neither the physician's fees nor the apothecary's journeys could be so expensive. but she was too weak to be removed immediately. however, in a short time, she returned home, in company with myself and mr. cranstoun, who, with my father and mother's approbation, resided with us above six months. during which interval, my father was sometimes extremely kind, and sometimes very rude to mr. cranstoun, as well as very harsh, to his daughter. i observed, that this rudeness and harshness generally appeared after he had been in company with some persons, and particularly one hereafter mentioned, who were known not to approve of my marriage with mr. cranstoun. my father also frequently made my mother very uneasy, on account of her approbation of that marriage; tho' he always declared, that he thought mr. cranstoun a most agreeable man. whilst he was last at my father's house, the regiment of marines to which he belonged was broke at southampton; which obliged him to go thither: but he did not stay there above two or three days; and upon his return to henley, was received by my father with great tenderness, who told him, that "as he was now broke, he supposed his cash, would run low; and that therefore he was welcome to stay with him." this happening in my presence, i went up to my father kissed him, and said, "sir, i shall never forget this goodness." mr. cranstoun having lost his post in the regiment of marines, did not remain long in henley; but set out soon for london, where he made a pretty, considerable stay. we kept up, however, our correspondence, as usual in times of absence, he writing to me almost every post. a few months after mr. cranstoun's return from southampton, my mother went up to london, in order to ask advice for a complaint in her breast, and took me along with her. upon our arrival there, we went to her brother's, mr. henry steven's, in doctors' commons, where we resided all the time we remained in town. i had before apprized mr cranstoun of our intended journey; and he waited upon me the next morning after our arrival at my uncle's. hither he came every day to visit me, whilst we stayed in london. once he brought his brother, the lord cranstoun, with him, who was then just married. one of mr. cranstoun's visits happening a little before dinner, my mother asked her brother, mr. henry stevens, to invite him to dinner; but this favour was refused her: on which, coming into the dining-room, whore she found me and mr. cranstoun, she took him by the hand, and burst into tears, saying, "my dear mr. cranstoun, i am sorry you should be so affronted by any of my family, but i dare not ask you to stay to dinner. however, continued she, come to me as often as you can in my own apartment; in a morning i am always alone." to this mr. cranstoun made answer, "my dear mamma, don't be uneasy--i don't come for the sake of them, but of you and your daughter. and let him put on never so terrible a face, he shall not keep me from you." at this time mrs. focock was in town, and had a house in st. james's square, to which i used to go most days. hither mr. cranstoun perpetually came, when he understood that i was here; and that with my father's, who arrived in town after we had reached it, and mother's consent. mrs. pocock often asked my father, whilst in london, to make one of the party. but he answered her, "you keep such quality hours, as neither agree with my health, nor suit my business; however, you will have two parts of me, my wife and my daughter." "yes," replied mrs. pocock, "and not only these two, but likewise another bit of you, which will be coming soon." at this he smiled, and said, "what, cranstoun! a little bit, indeed, i think! they are very well matched--i was surprised not to find him here--i thought they could not have been so long asunder." my father went away and left his family there. the next day my mother and i were invited to dine at mrs. pocock's, in order to meet the present lord crauford,[ ] then lord garnock, and mr. cranstoun. the latter attended mrs. pocock in a coach she had hired to fetch me and my mother into her house. my father met us in the strand, and stopped the coach, crying out, "for god's sake, mrs. pocock, what do you with this rubbish every day?" "rubbish, do you call them," replied she, "your wife, your daughter, and one who may be your son?" "aye, aye," said he, "they are very well matched; 'tis pity they should ever be asunder." on which, mr. cranstoun took hold of my father's hand, and cried out, "god grant they never may; don't you say amen, papa." at this my father smiled, and said, "make her these fine speeches seven years hence." he then took his leave of them, saying, "he had so much business upon his hands, that he could not stand idling there"; bidding the coachman to drive on, and crying out, "god bless you, i wish you merry." mrs. pocock then asked him, "if he could not contrive to come to them?" to which he made answer, alluding to the distance of her house, "god bless you, do you think i can come down now to henley?" then our coachman drove on to st. james's square; and soon after my father left the town, in order to return home. whilst i was now in london, mr. cranstoun proposed a private marriage to me, saying, "it might help us with regard to the affair in scotland; since a real marriage, according to the usage of the church of england, if matters went hard, might possibly invalidate a contract that arose only from cohabitation." in order to understand which, it must be observed, that mr. cranstoun had before cohabitated with one miss murray, by whom he had had a child then living; and was consequently considered, by the laws of scotland, as her husband. this, he said, was the only thing that intituled her to him, as he never was married by any priest. to mr. cranstoun's proposal i answered, "i won't, cranstoun, do you so much injury, as well as myself; for my father never will forgive it, nor give me a farthing." to which he replied, "there will be no occasion to discover it, but upon such an interesting event; and then surely, if you love me, you will suffer anything rather than part with me. what would i not suffer for you!" to this i made answer, "i would do nothing in the affair without he could procure the advice of the best council, and be certainly informed by this that such a marriage would be valid. consider with yourself," said i, "cranstoun, what a condition i should be in, if i should lose my character, my friends, and yourself?--and you i must lose, if your former supposed marriage should be declared valid, and in honour we must never see each other more." he then said, "he would go and lay the case immediately before the best council, particularly mr. murray, the solicitor-general." but i heard no more of this affair whilst we staid in town, excepting that it was laid before the said council; nor did i receive any more solicitations from him on this head. about this time my mother being distressed for money, was very uneasy, as well as in a bad state of health; which gave me great concern. being one day, therefore, alone, and in tears, mr. cranstoun came unexpectedly into the room, and insisted upon knowing the reason of my grief; which at last, after many tender persuasions on his part, i discovered to him. i told him my mother owed forty pounds, and as she durst not inform my father of it, did not know which way to get it. to this he replied, "i only wish i had as many hundreds: i will get it for you, my dear, to-morrow. poor woman, how can her husband use her so!" on which, my mother coming in, no more was at that time said. mr. cranstoun stayed but a little while; and when he went away, he told me, "he would see about it." after he was gone, i took my mother in my arms, and said, "my dear mamma, you may be easy about this money, for mr. cranstoun will get it for you to-morrow." at this my mother burst into tears, and cried, "why will mr. blandy expose himself and me so? how can the poor soul get it? but he shall have my watch if he ever wants it, and i cannot pay him in money." to this i made answer, "as to paying him in money, mamma, that you never can; having never been mistress of such a sum, nor likely ever to be so; but make yourself easy, if we meet, you will never be asked for it." the next day she and i went to see her sister, mrs. frances stevens, who then lived with her uncle, mr. cary, in watling street; where mr. cranstoun and his cousin, mr. edmonstoun, took their leave of us, we being to set out for henley the day following. mr. cranstoun brought the money with him, which he delivered into my mother's own hand; on which, not being able to speak, she squeezed his hand and burst into tears. he then kissed her, and said, "remember, 'tis a son, and therefore don't make yourself uneasy; you can't lie under any obligation to me." then he took me by the hand, and led me into another room. here i was going to return him thanks for his goodness to my mother: but this he prevented, by kissing me, and saying, "that was all he desired in return." then he gave me five guineas, and desired me to keep them by me; since, in case the council should think a private marriage proper, they should enable me to come up in a post-chaise to london, and meet him there, with all possible expedition. after a little farther discourse, we parted in a very moving manner. i paid ten pounds for my mother, out of the forty pounds she had been supplied with by mr. cranstoun, that very night. the next morning we set out for henley, where we arrived in due time. the day following, being sunday, i wrote to mr. cranstoun, as he had requested me to do; giving him an account of our safe arrival, and thanking him in the strongest terms, for his late extraordinary favour. the next day, being monday, the other thirty pounds, being the remaining part of the money my mother had borrowed of mr. cranstoun, she paid to the footman, for fowls, butter, eggs, wine, and other provisions, brought into the house, chiefly on account of entertainments, by him. from this time to sept. th, , my mother continued in a good state of health. but on that day, which was about half a year after her last departure from london, at one o'clock in the morning, she was taken very ill. this giving me, who always lay with her, great uneasiness, i immediately got up, and called her maid., who instantly appeared; and then she got out of bed, and retired. when she came into bed again, she said, "my dear molly, don't fright yourself: you know there is now no danger." in order to understand which words, it will be proper to observe, that, when my mother was in labour of me, she received a hurt; which made me apprehensive of ill consequences, which either the cholick, which was her present disorder, or any obstructions in the parts contiguous to those which are the seat of that distemper, happened. she lay pretty easy till six, when i dispatched a messenger for mr. norton, the apothecary to the family, who lived in henley. when he came, she complained of a pain in her bowels; upon which he took some blood from her, and ordered her some gentle physic. she seemed better after this, but nothing passed through her. it being friday, and many country gentlemen meeting to bowl at the bell inn, the rev. mr. stevens of fawley, my mother's brother, came thither that day, paid a visit to his sister, and found her greatly indisposed. when he left the room, in which she lay, for she kept her bed, i followed him out, and asked him, if he thought there was any danger; telling him how she then was, the manner in which she was first seized, and what had been prescribed her. as she before had had several such fits of cholick, mr. stevens did not apprehend any immediate danger. i said, "if my mamma was not better soon, i would send for a physician." to which he replied, "you are much in the right of it; but stay a little, and see what effects the physic will have." he called again in the evening, and found her better, tho' nothing had yet passed through her. about twelve o'clock at night my mother obliged me, who was then myself indisposed, to get into another bed; and promised to send to me, if she found herself worse. soon after this, she grew much worse; but would not send to her daughter, saying, "she would know her fate too soon." she farther said in mr. norton, who was then with her, "my daughter loves me so well, that i wish my decease may not be the death of her." between five and six o'clock in the morning, on saturday sept. th, , my mother's maid came up to me, and told me, that, "if i would see my mother alive, i must come immediately into her chamber." i leaped out of bed, put on my shoes, and one petticoat only, and ran thither in the greatest confusion imaginable. when my mother saw me, she put out her hand, and said, "now, molly, shew yourself a christian, and submit to what god is pleased to order. i must die, my dear: god will enable you to bear it, if you pray to him." on which i turned about in a state of distraction, ran to my father's room, and said to him, "for god's sake, sir, come to my mother's room: she is this instant dying." then i ran, with great inquietude, into the kitchen, where i found my footman, and sent him immediately to fawley for the rev. mr. stevens, my uncle, and his brother, mr. henry stevens, of doctors commons, who was then at his house in henley. i also, at the same time, dispatched a messenger to dr. addington, who lived at reading. after which i went upstairs, and found my father sitting by my mother's bedside. she took him and me both by the hand, joining our hands together, and saying to him, "be both a father and a mother to her: i have long tried and known her temper, mr. blandy. she is all your heart can wish for, and has been the best of daughters to me. use her with a generous confidence, and she will never abuse it. she has set her heart upon cranstoun; when i am gone, let no one set you against this match." to these last words mr. blandy immediately made answer, "it shall not be my fault, if this does not take place; but they must stay, you know, till the unhappy affair in scotland is decided." "god bless you," replied she, "and thank you for that promise; god bless you, mr. blandy, for all your kindnesses to me and my girl. god grant that you may both live long, that you may be a blessing to each other. whatever little unkindnesses may have passed i freely forgive you. now, if you please to go down, mr. blandy, for my spirits fail me." my father then kissed her, and retired in tears, saying, as he went, "the doctor still may think of something that may be of service to you." at this she smiled and said, "not without you can give me a new inside." when my father was gone, my mother took hold of my hand, drew me to her, and kissed me. taking notice that i had no cloaths on, she ordered my maid to bring 'em down, and dress me. this being done, she ordered her servants out of the room; and told me, "she had many things, if her strength would permit, to say to me. be sure then," said she, "molly, when i am gone, to remember the lessons i have taught you. be dutiful to your father; and if you think i have been sometimes a little hardly used, do not remember it in wrath; but defend my character if aspersed. i owe some more money, molly, god knows how you will get it paid. i wish your uncles would stand your friends. if your father should know it, i am only fearful for you. indeed, my dear, i never spent it in extravagancies. i was in hopes you would have been married; i then would have told your father all, as i could have come to you till his passion had been over." on my being drowned in tears, she catched me in her arms, and cried, "i leave the world with the greatest pleasure, only thee makes me sorry to go. oh that i could but take you along with me!--but then what would poor cranstoun do? be sure, child, you behave with honour in that affair; don't, either thro' interest or terror, violate the promises you have made." to this i reply'd, "you may be sure, madam, i never will. i will do all i can to act as you would wish your daughter to do. oh mamma, you have been the best of mothers to me! how can i survive you, and go thro' all the miseries i must meet with after your death, without a friend to advise with on any emergency or occasion." "my dear," returned she, "your uncle john, in things you cannot speak to your papa about, will help and advise you in the tenderest manner; and you may repose an absolute confidence in him." soon after mr. stevens of fawley came, and i conducted him into my mother's chamber. at his approach to her, he was so overwhelmed with grief, that he could not speak a word. she took him by the hand, and said, "i am glad to see you, my dear brother. you must help to comfort your poor niece, who will stand in need of your assistance. never forsake her, my dear brother. all that gives me pain in death is the leaving of her behind me." then turning to me, "your uncle jack, my dear, will take care of you, and look on you as his own," at which mr. stevens took hold of his sister's and niece's hands, and, with tears, told 'em both he would. then turning about, he asked me if the physician was not yet come? my mother said, "they would send for him, but he could be of no service to her"; giving her brother at the same time such reasons for her despondency as convinced him, that there were little or no hopes of her recovery. he found himself so moved at this, that he was obliged to go down stairs, and retire to my father and mr. henry stevens, who were at that time both in the parlour. the physician, dr. addington, of reading, soon arrived, and went directly to my mother's room. when he came in, she showed him the inflammation and swelling on her bowels. he prescribed her some physic, to be taken once in every two hours, and ordered her to be blooded immediately. her bowels also, according to his direction, were to be fomented and poulticed once in every four hours. this operation i took upon myself, and punctually performed it. i also gave her every medicine she took till she was at the point of death, and i myself was forced to be carried out of the room in a fit. dr. addington, before he prescribed anything, went with me out of the room, and told me he was afraid he could do nothing for her; repeating the same afterwards both to my father and my two uncles. notwithstanding which, he thought fit to order the above mentioned poultices and fomentations; which, according to his direction, were applied, tho' without producing any good effect. in fine, my dear mother died sept. , , about nine o'clock at night. for six months preceding her sickness, or thereabouts, being the interval between her last departure from london and the time her indisposition seized her, my mother never saw mr. cranstoun; tho' i constantly, and even almost every post, corresponded with him. it must here be observed, that lady cranstoun had wrote to my mother some time before, to return her thanks for the civilities her son had received from her. it must also be remembered, that a little before my mother went last to town, i and my father both received letters from miss murray, signed "n. cranstoun," to inform us, that she was his lawful wife. the decree of the court of scotland in her favour was sent with these letters. when i received them, i carried them to my father. after he had read them, i asked him "what i was to do." his answer was, "i do not trouble my head about it." on which i went to my mother, and consulted with her about what was to be done; and, by her advice, wrote to mr. cranstoun, begging him, as he was a man of honour, to let me know the truth. at the same time, i sent him the letters that came from scotland, and occasioned this epistle. in answer to this, he said, "it was certainly her hand; but that she never was his wife, nor has any right to the name": and, in order to gain credit to his assertion, he made the strongest protestations. before my mother wrote last to him, and that a considerable time, he had sent me a solemn contract of marriage, wherein he declared he never had been married before, and stiled me therein "mrs. cranstoun." but to put an end to this digression, and proceed to what happened after my mother's death. on the day following her decease, which was sunday, mr. stevens of fawley was desired to write mr. cranstoun word of this sorrowful event; which he did, i being incapable of either knowing or doing any thing. mrs. stevens, the rev. mr. stevens's wife, staid with me from saturday night, when my mother died, till the sunday night following. then mrs. mounteney, a friend of my late mother's, came to me, and staid with me some time. my mother, on her deathbed, had begged me not to oppose the match between my father and this mrs. mounteney, if, after her death, he discovered an inclination to marry her; as she was a woman of honour, and would use me well for her sake. on the tuesday following my mother's death mr. cranstoun sent his footman express to henley, with letters to me and my father. when my father opened his letter and read it, the tears ran down his checks, and he cried out, "how tenderly does he write!" then he gave mrs. mounteney the letter to read, who, after having read it, said it was as pretty a letter as could have been wrote on such an occasion; "he has lost a friend indeed," said she, "but i don't doubt," speaking to my father, "but you will make up her loss to them both." then, my father said to me, "pray read your letter to us." this i did, and the letter contained an earnest desire, that if i could not write myself, i would let his footman see me, that he might know how i really was; since he was almost distracted for fear of my being ill after so great a shock. he also begged me to remember, "that there was one left still, who loved me as tenderly as my mother could do, and whose whole happiness in this world depended upon my life." my father told me, tho' my mother was to be buried that night, "i must write a line to him, in order to ease the poor soul as much as i could; and let him know that he was as welcome to my father's house, whenever he would please to come, as he was before." on this i wrote to him, and shewed the letter to my father. the footman set out with it for london the same night, or very early the next morning. mr. cranstoun not coming down so soon as was expected, my father one day, being alone with me, seemed to express himself as if he thought it wrong; upon which i wrote a very pressing letter to him, to come immediately to henley. to this he in a letter replied, that he was not able to go out at that time for debt, and was fearful if he should come, the bailiffs might follow him; his fortune being seized in scotland, for the maintenance of miss murray and her child. the debt that occasioned this perplexity, he said, was near fifteen guineas. i having borrowed forty pounds of mrs. mounteney, to pay off part of my mother's debts, sent him up fifteen guineas out of this sum; on which he came down to henley, and staid some weeks with my father, who received him with great marks of affection and esteem. during this interval, he acquainted me with the great skill of the famous mrs. morgan, who had described me and my father, tho' she had never seen us, in the most perfect and surprising manner possible. he further acquainted me, that she had given him some powders to take, which she called love-powders. some time after this conversation, my father seemed much out of humour, and said several unkind things, both to mr. cranstoun and me. this induced mr. cranstoun, when alone with me not long after, to say, "i wish i could give your father some of the love-powders." "for what?" said i. "because," replied he, "they would make him love me." "are you weak enough," said i, "to think that there is such a power in any powders?" "yes, i really do," replied he, "for i took them myself, and forgave a friend soon after; tho' i never intended to have spoke to him again." this subject dropped for some days, and no more said of it: but on my father's being very much out of humour one night, mr. cranstoun said, "if i had any of these powders, i would put them into something that mr. blandy should drink." to which i answered, "i am glad you have not, for i have no faith in such things." "but i have," replied he. just before he returned to london, he received a dunning letter. this was on a sunday, when my father was at church. i perceiving him to look dull, begged to know the reason. he said he must leave me the next day. on which i asked him what could occasion such a sudden departure? he then told me he had received a letter, concerning a debt he owed, that he had no money to pay; and that if he staid in henley, the bailiffs might come down in quest of him thither; and you know your father's temper, said he, if that should happen. this induced me to desire a sight of the letter; which having perused, i immediately gave him the money he wanted on this occasion, winch amounted to fifteen pounds, and was part of the sum i had before borrowed of mrs. mounteney. this, with the other fifteen pounds sent him from henley, made up thirty of the forty pounds he had formerly lent my mother. as soon as he had received this money, he wrote a letter to his creditor in london, informing him, that he would pay him on a day therein mentioned. a few days after this, he set out for london, and kept up his correspondence with me for several months, not returning to henley till august . the morning he left henley, my father parted with him with the greatest tenderness; yet the moment he was gone, he used me very cruelly on his account. this had such an effect upon me, that it threw me into hysteric fits. his conduct for some time was very uncertain; sometimes extremely tender, and at other times the reverse; he on certain occasions saying very bitter and cruel things to me. during this interval, my father received a present of some dried salmon from lady cranstoun in scotland, and a very civil letter, which he did not answer, tho' he seemed pleased with the contents of it. the first of august , as i apprehend, mr. cranstoun wrote to my father, that he would wait upon him, and i carried the letter up to him, he then being in his bed-chamber. after he had opened and read it, he made no manner of answer. i then asked him what answer i should write. to which he replied, "he must come, i suppose." on this i wrote to him, giving him to understand, that i should be glad to see him. this produced an answer from him, wherein he told me, he would be with me on the monday following; but he came on sunday, whilst we were at dinner. my father received him with great tenderness seemingly, and said, "he was sorry he had not seen him half an hour sooner, for he was afraid the dinner was quite cold." my father after dinner went to church, and left mr. cranstoun and me together: after church was over, my father returned, drank tea with us, and seemed to be in perfect good humour; and so he remained for several weeks; but afterwards changed so much in his temper, that i seldom arose from table without tears. this gave mr. cranstoun great pain; so that he one time said to me, "why will you not permit me to give your father some of the powders which i formerly mentioned? if i was to give him them," continued he, "they are quite innocent, and will do him no harm, if they did not produce the desired effect." he had no sooner spoke those words than my father came in; upon which a profound silence ensued. next morning i went into my father's study, and found him very much out of humour: he had spent the evening at the coffee-house, as he frequently did, and generally came home in a bad humour from thence. i went from him into the parlour where i found mr. cranstoun: he insisted upon knowing what was the matter, i appearing to him to have been lately in tears: i told him the whole affair. he replied, "i hate he should go to that house, he always comes home from thence in a very ill humour." i had made the tea, and got up to fetch some sugar, which was in a glass scrutore at the farther end of the room; and when i rose up, mr. cranstoun said to me, "i will now put in some of the powder--upon my soul it will not hurt him." my father was in his study at the time these words were spoken. i made answer, "don't do it, cranstoun; it will make me uneasy, and can do you no good." to this he replied, "it can do no hurt, and therefore i will mix it." after i had got the sugar, i returned to the tea-table, and was going to throw away the tea, in which mr. cranstoun had put some of the powder; but my father came in that moment, and prevented me from executing my design. my father seemed very much out of humour all breakfast-time; and, soon after breakfast was over, retired to his study. mr. cranstoun and i then took a walk. at dinner my father appeared in the best of humours, and continued so all the time mr. cranstoun stayed with him. mr. cranstoun and i used to walk out every day. on one of those days, mr. cranstoun told me he had a secret to impart to me, and begg'd me not to be angry with him for it; adding, he knew i had too much good sense to be so. the secret in short was this: he had had a daughter by one miss capel, a year before he knew me; and, as he pretended, all his friends had insisted upon his telling me of it. to this i replied, "your follies, cranstoun, have been very great; but i hope you see them." "that i do," said he, "with penitence and shame." "then, sir," replied i, "i freely forgive you; but never shall, if you repeat these follies now after our acquaintance." "if i do," said he, "i must be a villain; you alone can make me happy in this world; and, by following your example, i hope i shall be happy in the next." mr. cranstoun gave my father the powder in august , and stayed with him in henley, as i believe, till some day in the beginning of november, the same year. a day or two after the preceding dialogue, one morning i got, up, and asked my maid, "how mr. cranstoun did?" who answered, "he is gone out a walking, madam." upon this, i, as soon as i was drest, went up into mr. cranstoun's room, to look out his linnen for my maid to mend. i could not find it on the table, where it used to lie; and seeing a key in his trunk, i opened it. the first thing i found there was a letter from a hand i knew not, tho' he used always to give me his letters to open, and that unasked by me. this i opened to read, and found it to come from a woman he kept. having read it, i shut the trunk, locked it fast, and put the key in my pocket. the letter i left in the same place where i found it. i then went down to my father in his study, and asked him to come to breakfast. he said, "no, not till cranstoun returns home;" on which i retired into the parlour. a few minutes after, mr. cranstoun and mr. littleton, my father's clerk, both came in together. we all of us then went to breakfast. my father said to me, soon after we sat down, "you look very pale, molly; what is the matter with you?" "i am not very well, sir," replied i. after we had breakfasted, my father and his clerk went out of the room. i then gave mr. cranstoun the keys of his trunk, and bade him be more careful for the future, and not leave his letters so much exposed. at these words he almost fainted away. he got up, and retired to his room immediately. i was going to my own room, when he called to me, and begged me, for god's sake, to come to him: which i instantly did. he then fell down on his knees before me, and begged me, for god's sake, to forgive him; if i was resolved to see him no more. on this i told him i forgave him, but intreated him to make some excuse to leave henley the next day: "for i will not," said i, "expose you, if i can help it; and our affair may scorn to go off by degrees." the last words, seemingly so confounded him, that he made me no answer, but threw himself on the bed, crying out, "i am ruined, i am ruined. oh molly, you never loved me!" i then was upon the point of going out of the room, without giving him any answer. upon which he got hold of my gown, and swore, "he would not live till night, if i did not forgive him." he bad me, "remember my mother's last dying commands, and reflect upon the pain it would give his mother." he protested "that he could never forgive himself, if i did; and that he never would repeat the same provocations." he kept me then two hours, before he could prevail upon me to declare, that i would not break off my acquaintance with him. mr. cranstoun pretended to be sick two or three days upon this unlucky event; but i cannot help thinking this now to have been only a delusion. some time after this mr. cranstoun had a letter from his brother, the lord cranstoun, to desire him to come immediately to scotland, in order to settle some of his own affairs there, and to see his mother, the lady cranstoun, who was then extremely ill. upon the arrival of this letter mr. cranstoun said to me, "good god, what shall i do! i have no money to carry me thither and all my fortune is seized on, but my half-pay!" this made me very uneasy. he then said, "he would part with his watch, in order to enable him to raise a sum sufficient to defray the expence of his journey to scotland." i told him, "i had no money to give him, but would freely make him a present of my own watch; as i could not bear to see him without one." then i took a picture of himself, which he had some time before given me, off my watch, and freely made him a present of it. two days after this he departed for scotland, and i never afterwards saw him. he set out about six o'clock in the morning. my father got up early that morning to take leave of him before his departure, at which he seemed vastly uneasy. he took him in his arms, and said, "god bless you, my dear cranstoun, when you come next, i hope your unhappy affair will be decided to our mutual satisfaction." to this mr. cranstoun replied, "yes, sir, i hope in my favour; or if this should fail that you should hear of my death. be tender to," continued he, "and comfort this poor thing," turning towards me, "whom i love better than myself." then my father look mr. cranstoun and myself in his arms, and we all three shed tears. this was a very moving scene. my father afterwards went out of the room, and fetched a silver dram-bottle, holding near half a pint, filled it with rum, and made a present of both to mr. cranstoun; bidding him keep the dram-bottle for his sake, and drink the liquor on the road; assuring him, that if he found himself sick or cold, the latter would prove a cordial to him. mr. cranstoun then got into the post-chaise, and took his leave of henley. it will be proper to take notice in this place, by way of digression, of a very remarkable event, or rather series of events, that happened before mr. cranstoun's last departure for scotland. one day whilst my mother and i were last in london, we were talking of the immortality of the soul; and the subject we were then upon led us insensibly to a discourse of apparitions; and that again to a promise we made each other, that the first of us who died should appear to the survivor, after death, if permitted so to do. my mother dying first, in the manner already related, i sometimes retired into the room where she died, in hopes of seeing her. here i lay near half a year, earnestly desiring to see my mother, without being able either to see or hear any thing. after this, my father lay in that room; but for some time neither saw nor heard any thing. afterwards, one night, he taxed me with being at his chamber door, rapping at it, rushing with my silk-gown, and refusing to answer him when he called to me. my chamber was at a small distance from his, and into it he came the next morning: demanding for what reason i had so frighted him. to this i replied, "i had never been at his door, nor out of my bed the whole night." he then inquired of all the maids, who only lay in the house, whether any of them disturbed him; to which they all answered in the negative. soon after this, mr. cranstoun came to henley, as has been already observed, and was put into a room, called the hall-chamber, over the great parlour; which was reckoned the best in the house. here he was shut out from the rest of the family. till october , above a year after my mother's death, no noise at all was heard, excepting that at mr. blandy's chamber-door above mentioned. but one morning in the beginning of that month, mr. cranstoun being in the parlour, i asked him, "what made him look so pale, and to seem so uneasy?" "i have met," said he, "with the oddest accident this night that ever befel me: the moment i got into bed, i heard the finest music that can possibly be imagined. i sat up in my bed upon this, to hear from whence it came; and it seemed to me to come from the middle of the stairs. it continued, as i believe, at least above two hours." at this i laughed, and said, "o cranstoun, how can you be so whimsical?" "tis no whim," replied he, "for i really heard it; nor had i been asleep; for it began soon after i got into bed." i then said, "don't make yourself uneasy, if it was so; since nothing ill, sure, can be presaged by music." when my father came into the parlour, this topic of conversation was instantly dropped. the next night, i, who lay quite at the other end of the house, being awake, heard music, that seemed to me to be in the yard, exceeding plainly. upon this, i got up and looked out of the window that faced the yard, but saw nothing. the music, however, continued till near morning, when i fell asleep, and heard no more of it. my mother's maid coming into my chamber, as usual, to call me, i told her what i heard. this drew from her the following saucy answer: "you see and hear, madam, with mr. cranstoun's eyes and ears." to which i made no other reply than, "go, and send me my own maid". as soon as i was dressed, i went into mr. cranstoun's room, whom i found sitting therein by the fire. i asked him, at first coming into the room, "how he had spent the night, and whether he had heard the music?" to which he replied, "yes, all night long; i could not sleep a wink for it; nay, i got out of my bed, and followed it into the great parlour, where it left me. i then returned into my own room, and heard such odd noises in the parlour under me, as greatly discomposed me." "i wish," added he, "you would send me up a bason of tea." to which i replied, "pray come down, as you are now up; for you know my papa is better tempered when you are by, than when i am with him alone." we then both went down to breakfast, but said nothing to my father of what had happened. a little while after this, susannah gunnel, my mother's maid, who had before given me the impertinent answer, came into my bedchamber before i was up, and told me she had heard the music. she also begged my pardon for not believing me, when i had formerly averted the same thing. mr. cranstoun, myself, and this maid then talked all together about this surprising event. mr. cranstoun declared he had heard noises, as well as music, which the other two at that time never heard. the music generally began about twelve o'clock at night. my father obliging the family to be in bed about eleven, i told the aforesaid maid, who was an old servant in the family, "that she and i would go together up into mr. cranstoun's room at twelve o'clock, and try if we could find out what these noises were." according to agreement, therefore, we went up into that room at the hour proposed; and heard very clearly and most distinctly the music. the maid fell asleep about three o'clock in the morning; but was soon waked with an uncommon noise, heard both by mr. cranstoun and myself. this noise resembled thumping or knocking at a door, which greatly terrified mr. cranstoun, and the maid. in less than a minute after this, we all three heard plainly the footsteps of my mother, as i then apprehended, by which she seemed to be going down stairs towards the kitchen door, which soon after seemed to be opened. we all three sat silent, and heard the same invisible being come up stairs again. upon this, i took the candle, they still sitting by the fire, and was going to open the chamber door, saying, "surely it must be one of the maids." mr. cranstoun observing this, cried out, "perhaps it may be your father, don't let him see you here." then he took the candle, opened the door, and looked down the stairs himself; but could perceive nothing at all. in less than three minutes after this i said, "i will now go into my room to bed, being fatigued and frightened almost to death." "i believe," continued i, "it is near four." these words were no sooner uttered than we all heard the former footsteps, as tho' some person had been coming directly to the room where we were, but stopped short at the door. upon this i immediately catched up the candle, went to the door and open'd it; but saw nothing, tho' i heard something plainly go down the stairs. then i went to the maid, who was half asleep, and did not perfectly hear the last footsteps. but mr. cranstoun heard them, and seemed greatly surprised. then i bad the maid go with me instantly to bed, not being able to keep up my spirits any longer. soon after this, mr. cranstoun and i went up to fawley, to pay a visit to the rev. mr. stevens; and whilst we were there, i gave my uncle an account of this surprising affair. but he laughed at me, and called me little fool, for my pains. then mr. cranstoun said, "sir, i myself heard it." to which mr. stevens made no other reply than, "sir, i don't doubt you think you heard it; but don't you believe there is a great deal in fancy? may it not be some trick of the servants?" to which i made answer, "no, sir, that is impossible; since if they could make the noise, they could not the music." mr. stevens not giving much credit to what we affirmed, we immediately changed the subject of discourse. by this time all the servants that lay in the house had heard both the music and noise; and one morning at breakfast, mr. cranstoun ventured to tell my father of the music. at such a strange report, my father stared at him, and cried, "are yon light-headed?" in answer to which mr. cranstoun reply'd, "your daughter, sir, has heard the same, and so have all your servants." to this my father, smiling, returned, "it was scotch music, i suppose;" and said some other things that shewed he was not in good humour. upon which it was thought fit immediately to drop the discourse. some few days after this, on a sunday in the afternoon, mr. cranstoun and i being alone in the parlour, betty binfield, the cook-maid, came running into the room, and said, "there is such a noise in the room over my master's study, for god's sake come into the yard and hear it." but when we came, we could hear nothing. however, returning into the parlour through the hall, we heard a noise over our heads, like that of some heavy person walking. the room over the hall was once my mother's dressing-room, tho' it then had a bed in it: but now, it was my dressing-room, it had none at all. hearing the noise, we both went up into the room; but then, notwithstanding the late noise, could see nothing at all. after which, we went down and drank tea with my father. about a fortnight before mr. cranstoun's last departure for scotland, susannah gunnel one morning going into his room with some vinegar and water to wash his eyes, he asked her, "if ever her master walked in his sleep?" she replied, "not that she ever knew of." "it is very odd," said he, "he was in my room to-night, dressed with his white stockings, his coat on, and a cap on his head. i had never," continued he, "been asleep, and the clock had just struck two. i heard him walk up my stairs, open the door, and come into the room: upon which i moved my curtain, and seeing him, i cried, 'aha! old friend, what did you come to fright me? i have not been asleep since i came to bed, and heard you come up.' but he went on, he would not answer me one word. however, he walked quite across my room, then turned back, and as he approached my bed-side, kissed his hand, bowed, and went out of the room. then i heard him go down stairs. it was, certainly," continued he, "your master, sleeping or waking; but which, i cannot tell." susan greatly surprised at this story, then came running down to me, who was getting up, and told me what mr. cranstoun had said. to this i made no answer, but went up immediately into his room, and asked him what he meant by this story susan had told me. in answer to which, he repeated the same story, and declared it to be true in every particular. he then said, "he supposed mr. blandy came to see whether he was in bed or not." when he went down to breakfast, he asked my father, "what made him fright him so last night?" my father being surprised at this, and staring on him, asked him, "what he meant?" mr. cranstoun then told the same story over again. to which my father replied, "it must have been a dream, for i went to bed at eleven o'clock, and did not rise out of it till seven this morning. besides, i could not have appeared in my coat, as you pretend, since the maid had it to put a button upon it." my father did not seem pleased with the discourse; which induced me to put an end to it as soon as possible. the surprising facts here mentioned, of the reality of which i cannot entertain the least doubt, made a deep and lasting impression upon my mind. since, therefore, in my opinion, they were too slightly touched upon at my trial, notwithstanding the incredulity of the present age as to facts of this nature, i could by no means think it improper to give so particular and distinct a relation of them here. mr. cranstoun, soon after this, taking his leave of henley, set out for scotland, as has been already observed. a day or two after his departure, mr. cranstoun wrote me a letter on the road, wherein he begged me to make acceptable to my father his most grateful acknowledgements for his late goodness to him. "this," he said, "had made such an impression upon him, that he never should forget it as long as he lived; and that he should always entertain the same tender sentiments for him as for his father, the late lord cranstoun,[ ] himself, had he been then alive." in the same letter, he also desired me to permit my letters to be directed by some body who wrote a more masculine hand than mine; since otherwise they might be intercepted by some one or other of miss murray's family, as they were jealous of the affair carried on between us two. he likewise therein insisted upon my subscribing myself "m.c." instead of "m.b." tho' he did not discover to me the real view he had therein. soon after he arrived at his mother's, he wrote me another letter, wherein he informed me, that he told his mother[ ] we were married, and had been so for some time: and that she would write to me, as her daughter, by the very next post. this she did; and her letter came accompanied with one from her son, wherein he desired me, if i loved him, to answer his mother's by the return of the post, and sign myself "mary cranstoun" at length, as i knew before god i was, by a solemn contract, entitled to that name. this, he pretended, would make his mother stir more in the scotch affair. on the supposition that i was her daughter, she wrote many tender letters to me, always directing to me by the name of "mary cranstoun," and sent me some very handsome presents of scotch linen. he also obliged his eldest sister, mrs. selby,[ ] and her husband, to write to me as their sister. lady cranstoun likewise wrote to my father in a very complaisant style, thanking him for the civilities he had shewn her son; and hinting, that she hoped it would be in her power to return them to me, when she should have the pleasure of seeing me in scotland, which she begged might be soon. lord cranstoun, his brother, also wrote to my father, and returned him thanks in the same polite manner. during this whole period, my father's behaviour to me was very uncertain; but always good after he had received any of these letters. in a few months, however, after mr. cranstoun's departure, my father's temper was much altered for the worse. he upbraided me with having rejected much better offers than any that had come from scotland; and at last ordered me to write to mr. cranstoun not to return to henley, till his affair with miss murray was quite decided. i complied with this order, writing to him in the terms prescribed me. to this i received an answer full of tenderness, grief, and despair. he said, "he found my father loved him no longer, and was afraid he would inspire me with the same sentiments. he saw," he said, "a coolness throughout my whole letter; but conjured me to remember the sacred promises and engagements that had passed between us." after this, i received several other letters from him, filled with the same sort of expostulation; and penned in the same desponding and disconsolate strain. i likewise received several letters from his mother, the old lady cranstoun, and mrs. selby, his sister, wrote in a most affectionate style. in april, or the beginning of may, , as i apprehend, i had another letter from mr. cranstoun, wherein he acquainted me, that he had seen his old friend, mrs. morgan; and that if he could procure any more of her powder, he would send it with the scotch pebbles he intended to make me a present of. in answer to this, i told him, "i was surprised that a man of his sense could believe such efficacy to be lodged in any powder whatsoever; and that i would not give it my father, lest it should impair his health." to this, in his next letter, he replied, "that he was extremely surprised i should believe he would send any thing that might prove prejudicial to my father, when his own interest was so apparently concerned in his preservation." i took this as referring to a conversation we had had a little before he set out for scotland; wherein i told him, "i was sure my father was not a man of a very considerable fortune; but that if he lived, i was persuaded he would provide very handsomely for us and ours, as he lived so retired, and his business was every day increasing." so far was i from imagining, that i should be a gainer by my father's death, as has been so maliciously and uncharitably suggested! mr. cranstoun also seemed most cordially and sincerely to join with me in the same notion. soon after this, in another letter, he informed me, "that some of the aforesaid powder should be sent with the scotch pebbles he intended me; and that he should write upon the paper in which the powder was contained, 'powder to clean scotch pebbles,' lest, if he gave it its true name, the box should be opened, and he be laughed at by the person opening it, and taken for a superstitious fool, as he had been by me before." in june , the box with the powder and pebbles arrived at henley, and a letter came to me the next day, wherein he ordered me to mix the powder in tea. this some mornings after i did; but finding that it would not mix well with tea, i flung the liquor into which it had been thrown out of the window. i farther declare, that looking into the cup, i saw nothing adhere to the sides of it; nor was such an adhesion probable, as the powder swam on the top of the liquor. my father drank two cups of tea out of that cup, before i threw the powder into it: nor did he drink any more out of it that morning, it being sunday, and he fearing to drink a third cup, lest he should be too late for church. it has been said by susan gunnel, at my trial, that she drank out of the aforesaid cup, and was very ill after it. in answer to which, i must beg leave to observe, that she never before would drink out of any other cup, than one which she called her own, different from this, and which i drank out of on that and most other mornings. it has been farther said, that dame emmet, a charwoman, was likewise hurt by drinking tea at my father's house: be pleased to remember, reader, that i mixed it but in one cup, and then threw it away. susan said, she drank out of the cup and was ill, what then could hurt this woman, who to my knowledge was not at our house that day? mr. nicholas, an apothecary, attended this old woman in the first sickness they talk of, which, by susan, i understood was a weakness common to her, viz. fainting fits and purging; and i know, that she had had fainting fits many times before. when i heard she was ill, i ordered susan to send her whey, broth, or any thing that she thought would be proper for her. she had long served the family, would joke and divert me, and i loved her extremely. nor can my enemies themselves (let them paint me how they please) deny that from my heart i pitied the poor. i never felt more pleasure, than when i fed the hungry, cloathed the naked, and supplied the wants of those in distress. had god blessed me with a more plentiful fortune, i should have exerted myself in this more; and i flatter myself, that the poor and indigent of our town will do me justice in this particular, and own that i was not wanting in my duty towards them. but to proceed in my account: i would not fix on any other charwoman; and susan said, that dame emmet would, she thought, by my goodness, soon get strength to work again. i told her, was it ever so long i would stay for her. i mixed the powder, as was said before, on the sunday, and on the tuesday wrote to mr. cranstoun, that it would not mix in tea, and that i would not try it any more, lest my father should find it out. this has been brought against me by many: but let any one consider, if the discovery of such a procedure as this, would not have excited anger, and consequently have been followed by resentment in my father. this might have occasioned a total separation of me from mr. cranstoun, a thing i at that time dreaded more than even death itself. in answer to this letter, i had one from him to assure me the powder was innocent, and to beg i would give it in gruel, or something thicker than tea. many more letters to the same effect i received, before i would give it again; but most fatally, on the th august, i gave it to my poor father, innocent of the effects it afterwards produced, god knows; not so stupid as to believe it would have that desired, to make him kind to us; but in obedience to mr. cranstoun, who ever seemed superstitions to the last degree, and had, as i thought, and have declared before, all the just notions of the necessity of my father's life for him, me, and ours. on the monday the th, as has been said, i mixed the powder in his gruel, and at night it was in a half-pint mug, set ready for him to carry to bed with him. it had no taste. the next morning, as he had done at dinner the day before, he complained of a pain in his stomach, and the heart-burn; which he ever did before he had the gravel. i went for mr. norton at eleven o'clock in the forenoon, who said, that a little physick would be right for my father to take on wednesday. at night he ordered some water gruel for his supper, which his footman went for. when it came, my father said, "taste it, molly, has it not an odd taste?" i tasted it, but found no taste different from what is to be found in all good water gruel. after this he went up to bed, and my father found himself sick, and reached; after which he said he was better, and i went up to bed. susan gave him his physick in the morning, and i went into his bed-chamber about eight o'clock; then i found him charming well. susan says that on my father's wanting gruel on the wednesday, i said, as they were busy at ironing, they might give him some of the same he had before. i do not remember this; but if i did, it was impossible i should know that the gruel he had on tuesday was the same he had on monday; as that he drank on monday was made on saturday or sunday, i believe on saturday night; much less imagine that she whoever made it, and managed it as she pleased, would pretend to keep such stale gruel for her master. thursday and friday he came down stairs. i often asked mr. norton, "if he thought him in danger; if he did, i would send for dr. addington." on saturday mr. norton told me, "he thought my father in danger." i said, "i would send for the doctor;" but he replied, "i had better ask my father's leave." i bid him speak to my father about it, which he did; but my father replied, "stay till to-morrow, and if i am not better then, send for him." as soon as i was told this, i said, "that would not satisfy me; i would send immediately, which i did; and mr. norton, the apothecary, attested this in court." on the same night, being saturday, the doctor came, i believe it was near twelve o'clock. he saw my father, and wrote for him: he did not then apprehend his case to be desperate. i have been by this gentleman blamed, for not telling then what i had given my father. i was in hopes that he would have lived, and that my folly would never have been known: in order the more effectually to conceal which, the remainder of the powder i had, the wednesday before, thrown away, and burnt mr. cranstoun's letter: so i had nothing to evince the innocence of my intention, and was moreover frightened out of my wits. let the good-natured part of the world put themselves in my place, and then condemn me if they can for this. on sunday my father said, "he was better"; but found himself obliged to keep his bed that day. mr. blandy, of kingston, a relation of ours, came to visit us, stayed with me to breakfast, and then went to church with mr. littleton, my father's clerk. i went, after they had gone to my father, and found him seemingly inclined to sleep; so let him, retired into the parlour, and wrote to mr. cranstoun, as i did almost every post. i had, on the friday before, a letter from him; wherein some secrets of his family were disclosed. as i wrote in a hurry, i only advised him to take care what he wrote; which, as my unhappy affairs turned out, my enemies dressed up greatly to my disadvantage at my trial. i gave this letter, as i did all of them, to mr. littleton to direct, who opened it, carried it to a friend of his for advice on the occasion, and conveyed it to a french usher; who, by the help of it, published a pamphlet entitled, _the life of miss mary blandy_. on sunday in the afternoon, mrs. mounteney and her sister came to see my father; who told them, "he hoped he should soon be able to meet them in his parlour; since he thought himself better then." susan was to sit up with her master that night. the rev. mr. stockwood, rector of the parish, came in the evening to visit him; the apothecary was there likewise; and he desired the room might be quite still; so that only susan, the old maid, was to be with him. after this i went up to my father's bedside; upon which he took me in his arms and kissed me: i went out of the room with mr. stockwood and mr. norton, the apothecary, almost dead, and begg'd of the latter to tell me if he thought my father still in danger. he said "he was better, and hoped he would still mend. to-morrow," said he, "we shall judge better, and you will hear what dr. addington will say." while mr. stockwood staid, mr. littleton and betty, my father's cook-maid, behaved tolerably well; but as soon as he was gone they altered their conduct; however, upon mr. norton's speaking to him, mr. littleton became much more civil; and betty followed his example. i took a candle, and went up into my own room; but in the way i listened at my father's door, and found everything still there; this induced me to hope that he was asleep. on monday morning, i went to his door, in order to go in: his tenderness would not let me stay up a-nights; but i was seldom from him in the daytime. i was deprived access to him; which so surprised and frightened me, that i cried out, "what, not see my father!" upon which, i heard him reply, "my dear polly, you shall presently;" and some time after i did. this scene was inexpressibly moving. the mutual love, sorrow, and grief, that then appeared, are truly described by susannah gunnel; tho', poor soul, she is much mistaken in many other respects. i was, as soon as dr. addington came, by his orders, confined to my own room; and not suffered to go near my father, or even so much as to listen at his door; all the comfort i then could have had, would have been to know whether he slept or no; but this was likewise refused me. a man was put into my room night and day; no woman suffer'd to attend me. my garters, keys, and letters were taken away from me, by dr. addington himself. dr. lewis, who it seems was called in, was at this time with him; but he behaved perfectly like a gentleman to me. during this confinement i had hardly any thing to eat or drink: and once i staid from five in the afternoon till the same hour the next day without any sustenance at all, as the man with me can witness, except a single dish of tea; which, i believe, i owed to the humanity of dr. lewis. i had frequently very bad fits, and my head was never quite clear; yet i was sensible the person who gave these orders had no right to confine me in such a manner. but i bore it patiently, as my room was very near my father's, and i was fearful of disturbing him. dr. addington and dr. lewis then came into my room, and told me "nothing could save my dear father." for some time i sat like an image; and then told them, that i had given him some powders, which i received from cranstoun, and feared they might have hurt him, tho' that villain assured me they were of a very innocent nature. at my trial, it appeared, that dr. addington had wrote down the questions he put to me, but none of my answers to them. the judge asked him the reason of this. he said, "they were not satisfactory to him." to which his lordship replied, "they might have been so to the court." the questions were these. why i did not send for him sooner? in answer to which, i told him, that i did send for him as soon as they would let me know that my father was in the least danger. and that even at last i sent for him against my father's consent. this, i added, he could not but know, by what my father said, when he first came on saturday night into his room. the next question was, why i did not take some of the powders myself, if i thought them so innocent? to this i answered, i never was desired by mr. cranstoun to take them; and that if they could produce such an effect as was ascribed to them, i was sure i had no need of them, but that had he desired this, i should most certainly have done it. it is impossible to repeat half the miseries i went thro', unknown, i am sure, to my poor father. the man that was set over me as my guard had been an old servant in the family: which i at first thought was done out of kindness; but am now convinced it was not. when dr. addington was asked, "if i express'd a desire to preserve my father's life, and on this account desired him to come again the next day, and do all he could to save him," he said, "i did." he then was asked his sentiments of that matter; to which he replied, "she seemed to me more concerned for the consequences to herself than to her father." however, the doctor owned that my behaviour shewed me to be anxious for my poor father's life. could i paint the restless nights and days i went through, the prayers i made to god to take me and spare my father, whose death alone, unattended with other misfortunes, would have greatly shocked me, the heart of every person who has any bowels at all would undoubtedly bleed for me. what is here advanced, the man that attended me knows to be true also, who cannot be suspected of partiality. susan gunnel can attest the same. she observed at this juncture several instances between us both of filial duty and paternal affection. on wednesday, about two o'clock in the afternoon, by my father's death, i was left one of the most wretched orphans that ever lived. not only indifferent and dispassionate persons, but even some of the most cruel of mine enemies themselves, seem to have had at least some small compassion for me. soon after my father's death i had all his keys, except that of his study, which i had before committed to the care of the rev. mr. stevens of fawley, my dear unhappy uncle, delivered to me. this gentleman and another of my uncles visited me that fatal afternoon. this occasioned such a moving scene, as is impossible for any human pen to describe. after their departure, i walked like a frantic distracted person. mr. skinner, a schoolmaster in henley, who came to see me, as i have been since informed, declared that he did not take me to be in my senses. so that no stress ought to be laid on any part of my conduct at this time. nor will this at all surprise the candid reader, if he will but dispassionately consider the whole case, and put himself in my place. i had lost mine only parent, whose untimely death was then imputed to me. tho' i had no intention to hurt him, and consequently in that respect was innocent; yet there was great reason to fear, that i had been made the fatal instrument of his death--and that by listening to the man i loved above all others, and even better than life itself. i had depended upon his, as i imagined, superior honour; but found myself deceived and deluded by him. the people about me were apprized, that i entertained, and not without just reason, a very bad opinion of them; which could not but inspire them with vindictive sentiments, and a firm resolution to hurt me, if ever they had it in their power. my cook-maid was more inflamed against me than any of the rest; and yet, for very good reasons, i was absolutely obliged to keep her. my mother's maid was disagreeable to me; but yet, on account of money due to her, which i could not pay, it was not then in my power to dismiss her. but this most melancholy subject i shall not now chuse any farther to expatiate upon. i have brought down the preceding narrative to my father's death, where i at first intended it should end. besides, i have now not many days to live, and matters of infinitely greater moment to think upon. may god forgive me my follies, and my enemies theirs! may he likewise take my poor soul into his protection, and receive me to mercy, through the merits of my mediator and redeemer, jesus christ, who died to save sinners! amen. the foregoing narrative, which i most earnestly desire may be published, was partly dictated and partly wrote by me, whilst under sentence of death; and is strictly agreeable to truth in every particular. mary blandy. witness my hand. signed by miss mary blandy, in the castle at oxford, april , , in presence of two clergymen, members of the university of oxford. appendix v. letter from miss blandy to a clergyman in henley. (from no. of bibliography, appendix xii.) the following is an answer to a letter sent miss blandy by a worthy clergyman in henley, upon a very extraordinary subject, and highly deserves a place here:-- rev. sir,--i received yours, and at first felt all the horror innocence so belied could do; but now, sir, i look on it as a blessing from god, both to wean me from this world, and make the near approach of death less dreadful to me. you desire me, in your letter, if innocent of my poor mother's death and that of mrs. pocock, to make a solemn declaration, and have it witnessed; which i here do. i declare before god, at whose dread tribunal i must shortly appear, that as i hope for mercy there, i never did buy any poison, knowingly, whatever of mr. prince, who did live at henley, and now lives at reading, or of mr. pottinger, an apothecary and surgeon in henley; nor did i ever buy any poison in henley, or anywhere else in all my life; that as for mother's and mrs. pocock's death, i am as innocent of it as the child unborn, so help me god in my last moments, and at the great day of judgment. if ever i did hurt their lives, may god condemn me. this, sir, i hope, will convince you of my innocency. and if the world will not believe what even i dying swear, god forgive them, and turn their hearts. one day all must appear together at one bar. there no prompting of witnesses, no lies, no little arts of law will do. there, i doubt not, i shall meet my poor father and mother, and my much loved friend (through the mercies of jesus christ, who died for sinners) forgiven and in bliss. there the tears that cannot move man's heart shall be by god dried up. farewell, sir, god bless you, and believe me, while i live, ever your much obliged humble servant, m. blandy. (_n.b._--this letter was attested to be m. blandy's, &c., apr. th, .) appendix vi. contemporary advertisement of a love philtre.[ ] (from no. of bibliography, appendix xii.) (here follows an exact copy of a most wicked advertisement, publickly distributed in the streets of london, and dispersed in the neighbouring towns and villages; without any notice taken of such an enormity by the magistrates, or any measures pursued to punish the miscreants who disperse them, according to their desserts. however, the wretches who thus impose on the world, finding their account therein, as they certainly do, is a proof of multitudes being as credulous in this affair as miss blandy, and account for her being imposed on, in the manner she declares she was, by cranstoun.) the famous love-powder, or love-drops. sold for five shillings a bottle, at the golden-ball, in stone-cutters-street, fleet-market. any person that is in love with a man, and he won't return it, let her come to me, and i'll make him glad of her, and thank ye to boot, by only giving him a little of these love drops, it will make him that he can't rest without her. and the like, if a man is in love with a young woman, and she won't comply, let him give her a little of this liquor of love, and she will not be able to rest without him. if a woman has got a husband that goes astray, let her give him a few of these drops, and it will make him, rest at home, and never desire to go no more. and the like with a man if his wife goes astray, it will make her that she will never desire no other man. this liquor is the study of a jesuit, one mr. delore, and is sold by his nephew, mr. john delore, and i promise very fair, if it don't perform all i say, i'll have nothing for my pains; and if any young master has debauched a servant, and after won't have her, let her give him a little of this liquor, and if he don't marry her, i'll have nothing for it; therefore, i promise very fair, no performance no pay. appendix vii. contemporary account of the execution of mary blandy. (from no. of bibliography, appendix xii.) she was attended daily by the rev. mr. swinton, before whom, there is no doubt, she behaved properly (though in his absence seemed not under the least concern) as appears from mr. swinton, himself, whose veracity i don't in the least scruple, who has at various times declared, that whenever he was with miss blandy after her condemnation, she behaved in a becoming manner for a person under such circumstances; but i am afraid she had too much art for that gentleman, and that he was rather too credulous, and often imposed upon by her; she made him believe, 'tis certain, that after her mother's death, her apparition frequently appear'd; that there was musick hoard in the house night and day; yet all the performers were invisible. the reader will be surprised that stories of this kind should prevail at this time of day, and still more so, that mr. swinton should listen to them; but i am well informed that this gentleman himself is apt, to give credit to things of this sort. some days before her execution, she said that she intended to speak at the tree, if she had spirits when she came there, but that she was afraid the sudden shock of seeing the gallows might be too much for her to withstand, and that her spirits might fail her, unless she had an opportunity of seeing it beforehand, which she did, as the reader will find hereafter. we are now arrived at the verge of this unfortunate's life; the day before her execution she receiv'd the holy sacrament of the lord's supper, and sign'd and deliver'd the following paper, in order to convince the world how much she had been imposed on and seduc'd. i, mary blandy, do declare, that i die in a full persuasion of the truth and excellency of the christian religion, and a sincere, though unworthy, member of the church of england. i do likewise hope for a pardon and remission of my sins, by the mercy of god, through the merits and mediation of jesus christ, my most blessed lord and saviour. i do also further declare, that i did not know or believe that the powder, to which the death of my dear father has been ascribed, had any noxious or poisonous quality lodged in it; and that i had no intention to hurt, and much less to destroy him, by giving him that powder; all this is true, as i hope for eternal salvation, and mercy from almighty god, in whose most awful and immediate presence i must soon appear. i die in perfect peace and charity with all mankind, and do from the bottom of my soul forgive all my enemies, and particularly those who have in any manner contributed to, or been instrumental in bringing me to the ignominous death i am so soon to suffer. this is my last declaration, as to the points therein contained; and i do most earnestly desire, that it may be published after my decease. witness my hand, mary blandy. it has been before intimated that miss often declared to the rev. mr. swinton that since the death of her mother she had frequently in the night, and sometimes in the day been entertained with musick, performed, as she imagined, by invisible spirits; and since her conviction, has often been amused in the same manner; but in the night before her execution, the musick was more heavenly than ever she had heard it before; and this she declared in the morning before she was executed. as a report had been universally spread that she would be executed on the friday before, a very great concourse of people were got together upon the castle green, to be spectators of the execution. miss went up several times into the room facing the green, where she could view the great crowd of people about it; which she did with all the calmness and unconcern imaginable; and only said that she would not balk their expectations, tho' her execution might be deferred a day or two longer. about ten o'clock on sunday night, being informed that the sheriff was come to town, she sent a messenger to him, to request that she might not be disturbed till right in the morning, and that as soon after as he pleased she would be ready for the great task she had to undergo. accordingly, about half an hour after eight, the sheriff, with her attorney, and the rev. mr. swinton, went to the goal, and after half an hour's private prayers with the clergyman, she came down into the goal yard, where the sheriff's men were, and held two guineas in her hands for the executioner, which she took with her to the fatal tree. the night before her execution, she spent the chief of her time in prayers. she went to bed about the usual hour, and had little rest in the fore part of the night, but was at prayers in bed between three and four o'clock; after ending of which, she got up and dress'd herself; and some time after this, went up into the upper rooms of the house to look upon the gallows, which is opposite the door of the goal, and made by laying a poll across upon the arms of two trees, when she observed that it was very high. she went out of the castle about nine o'clock, attended by the rev. mr. swinton, dress'd in a black crape sack, with her arms and hands ty'd with black paduasoy ribbons, and her whole dress extremely neat; her countenance was solemn, and her behaviour well suited to her deplorable circumstances; but she bore up under her misfortunes with amazing fortitude. when she came to the gallows mr. swinton read several select prayers suitable to the occasion, and then asked her if she had anything to say to the populace? to which she answered, yes. she then begged the prayers of all the spectators, and declared herself guilty of administering the powder to her father, but without knowing that it had the least poisonous quality in it, or intending to do him any injury, as she hoped to meet with mercy at that great tribunal before whom she should very shortly appear. and as it had likewise been rumoured that she was instrumental in the death of her mother in like manner as her father, and also of mrs. pocock, she declared herself not even the innocent cause of either of their deaths (if she was the innocent cause of that of her father) as she hoped for salvation in a future state. as she ascended the ladder, after she had got _up_ about five steps, she said, "gentlemen, do not hang me high, for the sake of decency;" and then being desired to step up a little higher, she did two stops, and then turning herself about, she trembled, and said, "i am afraid i shall fall." after this, the halter was put about her neck, and she pulled down her handkerchief over her face, without shedding one tear all the time. in this manner she prayed a little while upon the ladder, then gave the signal, by holding out a little book which she had in her hands. there was not a large concourse of people at the execution, but the most thinking part of them were so affected with her behaviour and deplorable circumstances, that they were in tears. after hanging above half an hour the sheriff gave orders for her being cut down. thus far the utmost decorum was observed, but for want of some proper person to take care of her body, this melancholy scene became still more shocking to human nature. there was neither coffin to put her body in, nor hearse to carry it away; nor was it taken back into the castle, which was only a few yards, but upon being cut down was carried through the crowd upon the shoulders of one of the sheriff's men in the most beastly manner, with her legs exposed very indecently for several hundred yards, and then deposited in the sheriff's man's house, 'till about half an hour past five o'clock, when the body was put in a hearse, and carried to henley, where she was interred about one o'clock the next morning in the church, between her father and mother, where was assembled the greatest concourse of people ever known upon such an occasion. the funeral service was performed by the same clergyman as wrote the letter, dated the th of march (as before inserted)[ ] to whom, among seven guineas which she left for seven rings, she bequeathed one of them. appendix viii. letter from the war office to the paymaster-general, striking cranstoun's name off the half pay list. (from the original ms. in the possession of mr. a.m. broadley.) war office, th march, . sir,--on tuesday the d instant came on at oxford, before the honble. mr. baron legge & mr. baron smythe, the tryal of miss mary blandy for poisoning her late father; when first lieutenant wm. henry cranstoune, a reduc'd first lieut. of sir andrew agnew's late regt. of marines, now on the british establishment of half-pay, was charg'd with contriving the manner of sd. miss blandy's poisoning her father and being an abettor therein: and he having absconded from the time of her being comitted for the above fact:--i am comanded to signify to you it is his majesty's pleasure that the sd. lieutenant wm. henry cranstoune be struck off the sd. establishment of half pay, and that you do not issue any moneys remaining in your hands, due to the sd. lieut. cranstoune.--i am, sr. your most obedient & most humble servant, h. fox rt. honble. mr. pitt, paymaster-general. [endorsed] war office, th march, . mr. fox to mr. pitt directing the half pay of lieut. willm. henry cranstoun to be stopt. ent. no. w.p. fo. . appendix ix. the confessions of cranstoun. _i.--cranstoun's own version of the facts._ (from no. of bibliography, appendix xii.) let us now return to capt. cranstoun, who as soon as he heard miss was committed to oxford jail, secreted himself from the publick, so that when messengers were dispatched with warrants to apprehend him, he was not to be found. in this concealment (either in scotland, or the north of england) he lay for six months, that is from the middle of august, till a few days before miss's trial, which, came on the nd of march, when being well informed of the dangerous situation she was in, and that his own fate depended upon hers, his thought it high time to take care of himself; which he did by transporting himself to bologn in france. [illustration: captain william henry cranstoun, with his pompous funeral procession in flanders (_from an engraving by b. cole_.)] on his arrival at bologn, he found out one mrs. ross, whose maiden name was dunbar and a distant relation to his family. to this woman he made his application, told her the troubles in which he was involved and entreated her to have so much compassion on him as to protect and conceal him till the storm was a little blown over, and to screen him from the dangers he had just reason to apprehend. mrs. ross was so affected by his disastrous condition, that in regard to the noble family of which he was an unhappy branch, she promised to serve him in the best manner she could; but advised him to change his name, and to take that of dunbar, which had been that of her own. here the captain thought himself secure from the pursuit of his enemies; but, unluckily for him, some of his wife's relations, who were officers in some french troops residing there, got scent of him, and knowing in what a base & treacherous manner he had used that unhappy woman, and being inform'd, that, to escape the hand of justice, he had fled thither for refuge, threatened vengeance if ever they should light on him, for his inhuman usage of his wife. the captain hearing of their menaces, and not doubling but they would be as good as their words, kept very close in his lodging. in this obscurity he continued to the th of july, not daring to speak to any body, or even to stir out of doors. but being at length, weary of his confinement, and under dreadful apprehensions that he should one day fall a sacrifice to the resentment of his persecutors, consulted with mrs. ross, what course he should take to avoid the dangers he was then exposed to. after mature deliberation, it was agreed, that he and his two companions who went over with him, should take a trip to paris; and in order to secure a place of retreat, upon any emergency, mrs. ross should go to furnes, a town in flanders, in the jurisdiction of the queen of hungary, where they would come to her on their return. accordingly the next morning before day, they set out on their journey, not in a postchaise, or any publick vehicle, for fear of a discovery, but on foot; and lodging every night at some obscure village, till their arrival at paris. the subject of their conversation on the road generally turned upon the captain's amours and the intrigues he had been engaged in with the fair sex, but more particularly his affair with miss blandy. they expressed their surprize that he should make his addresses to a young lady of her character and fortune, with a view of marrying her, when the conjugal obligations he was already under, rendered the accomplishment impossible: nothing, answered the captain, seems impossible to men of undaunted courage and heroic spirits.... now, as to miss blandy, with whom you are surprized i should enter into such deep engagements, attend to my reasons, and your wonder i believe will soon cease. i am, you know, the son of a nobleman, and, consequently have those high thoughts and ambitious desires which are inherent to those of a noble extraction. as a younger son, my patrimony was too small to gratify my passion for those pleasures enjoyed by my equals. this put me on contriving schemes to answer the extent of my ambition. on my coming to henley, my first enquiry was, what ladies were the toasts among the men of pleasure & gaiety. miss blandy was named as the chief of them, and famed for a great fortune. accident soon gave me an interview with her; i visited, and was well received by the whole family, and soon insinuated myself into her good graces, and i quickly perceived that she had swallowed the bait. the father entertained me at bed and board, and the daughter obliged me with her company, and supplyed my wants of money upon every emergency, nor was the mother less fond of me than the daughter. but no human bliss is permanent; it was not long before a discovery was made that i was a married man. here i had occasion for the exercise of all my cunning. to deny it, i knew was to no purpose, because it would be proved; and to own it, might be the means of ruining my design. now, in order to steer safely between scilla and charibdis, i fairly owned the charge; but at the same time intimated, that the noose was not tyed so fast, but that it might be easily undone, and that i was then in a fair way of setting that marriage aside; and to gain belief to my assertion, i persuaded my poor credulous wife to disown me for her husband, whose letter restored me to the good opinion of the family, but especially of my mistress and her mother. the old gentleman, however, was not so easy of belief; he was afraid there was a snake in the grass and tho' he seemed to give credit to my protestations, that the cause would quickly be decided, yet i could easily perceive a coldness in his behaviour, which was an evident proof to me that i had lost ground in his favour; nor was i less sensible that the event of my trial in scotland, would not contribute anything to replace me in his good opinion. i found myself in such a situation, that i must very shortly, either lose my mistress, and, what was more valuable to me, her fortune, or make one desperate push to recover both. several schemes for this purpose were offered to my thoughts; but none seemed so feasible as dispatching the old man into the other world: for if he was but once dead, i was well assured i should soon be in possession of his estate. i had however, one difficulty to surmount, which was, to make my mistress a party concerned in the execution of my project. i knew she was greatly provoked at her father's late unkind behaviour to me; which i took care to aggravate all i could, which produced the effects i desired; and she declared she was ready to embrace any scheme i could propose to release us from our embarrassments; nay, i convinced her, that we should never have her father's consent, and therefore it would be in vain to wait for it. and, in order to fix her entirely in my interest, i used all my rhetorick to persuade her to a private marriage, which however for good reasons she did not think proper to agree to; yet she gave me her solemn vow, that no other man but myself should call her wife, and that in the mean time, she should reckon herself in duty bound to have the utmost regard to my will & pleasure. what i now speak of, was after judgment was given against me in scotland, and a decree, confirming the validity of my marriage, had been pronounced. this decree, i assured mr. blandy, his wife and daughter, i should be able to vacate by an appeal to the next sessions. after several pretended delays in the proceedings, finding mr. blandy's temper very much soured against me, i thought it necessary to hasten my project to a conclusion. to this end i had several private conferences with my mistress; wherein i observed to her the visible decay of her father's affections to me, and the improbability of his ever giving his consent to our marriage, and therefore that other measures must be taken to accomplish our happiness, which otherwise would be very precarious. i told her i was possessed of a drug, produced no where but in scotland, of such rare qualities, that by a proper application, it would procure love where there never was any, or restore it when absolutely lost and gone. of this drug, or powder, i would give some to her father, and she would soon be convinced of its efficacy by its benevolent effects. accordingly i mixed some with his tea several times, but in such small quantities as i knew would not immediately effect him; and i assured her, that tho' it did not produce a visible alteration at present, its operations being slow and internal, yet in the end it would effectually do its work. i likewise pretended there was an absolute necessity for my going into scotland in order to bring on the appeal, but in reality to carry on my design against old blandy with the greater secrecy and security. but before i went, i took care to infuse such notions into her head as tended to lessen the guilt of destroying the life of a father, who obstructed the happiness of his only child; and strenuously argued, that the froward humours of old age ought not to put a restraint on the pleasures of youth, and that when they did so, there was no sin in removing the obstacle out of the way. but to prevail with her to come more heartily into my measures, i played another stratagem upon her.... having thus persuaded her into a belief of an event, which i had good grounds to be assured would certainly happen, i found no great difficulty in bringing her to use the means to accomplish it. i told her i was then going to scotland, for the purposes she knew; that i would thence send her a quantity of the powder; and to prevent a discovery, would send her a parcel of scots pebbles, with directions to use it in cleaning them, but really in the manner as she had seen me use it, & as often as she had opportunity. miss, i find, in the narrative she has published of her case, solemnly declares, she was perfectly ignorant of the noxious quality of the powder: but had she suffered the publick to have seen my letters, the world would have known that she was privy to the design, and equally concerned in the plot, as i can convince you even to demonstration by her answers to my letters, under her own hand, which i will show you when we return to our lodgings. however, i do not blame her for denying it, because it was the only means she had left of persuading the world to believe her innocent. perhaps, gentlemen, you will suppose i am guilty of a great deal of vanity, in imagining myself capable of so grossly imposing on the understanding of a lady of such refined sense as miss blandy was acknowledged to be. in answer to which i can only say, that when love has taken possession of the heart, it leaves but very little room for reflection. that this was miss blandy's case, i will give you some few instances of the violence of her passion, and then leave you to judge to what extravagant lengths that might carry her. as my small income afforded me but slender supplies, i was frequently in debt, and as often at a loss how to come off with honour. miss was my constant friend on such occasions; and when her own purse could not do it, she had recourse to her servant, susan gunnel, who having scraped together about l. miss borrowed near l. of it for the relief of my wants. again; at the death of the prince of wales,[ ] her father gave her twenty guineas to buy her mourning, of which she laid out about . for that purpose, and the remainder she remitted to me, being then in scotland. another instance of the extravagance of her passion was this: you must know, that during the course of our mutual love and tenderness, some envious female sprite whispered in her ear, that i had at that very time a bastard, and was obliged to maintain both mother and child. to this charge i pleaded guilty, but told her, that it was a piece of gallantry that was never imputed to a soldier as a crime, and hoped i might plead the general practice in excuse. in short, she not only forgave me, but contributed all in her power to the support of both. miss however, was not so easily pacified on another occasion, when she happened to spring a mine that had like to have blown up all my works. when i lodged in the house, some occasion or other calling me suddenly into the town, i forgot to take out the key of my trunk. miss coming into the room soon afterwards, sees the key, and opens the repository, when the first thing she cast her eyes upon, was a letter, which i had lately received from a mistress i kept in _petto_. this opened such a scene of ingratitude and perfidy, that when she charged me with it, i was scarce able to stand the shock, and was so thunderstruck, that for some time i had not a word to say for myself. but when i had a little recollected my scattered spirits, i had address enough to pacify her wrath, even in an instance of such a notorious breach of my fidelity. these you will allow, were uncommon instances of affection for a man so circumstanced as i was; after which, can you suppose her capable of denying me anything within the compass of her power? can you any longer wonder that she should join with me in compassing the death of her father, when i had convinced her that our happiness could no otherwise be accomplished? in this manner the captain entertained his companions on their journey to paris. where being arrived, they took a lodging in a by-street.... every day for a fortnight, they spent in visiting the most remarkable places in paris.... but finding their exchequer pretty near exhausted, they began seriously to think of returning home to their good landlady. accordingly they set out on their journey and on the third day reached furnes, where they again met with a kind reception. mr. ross, their landlord, was likewise then just returned from england, where the captain had sent him to receive money for a bill of l. which was the only remittance that was sent him from his arrival in france to the time of his death. not long after his return to fumes he was taken with a severe fit of illness, from which however he recovered.... in this miserable condition he languished till he bethought himself that possibly he might receive some spiritual belief from a father famed for his piety in a neighbouring convent. to him he addresses himself and entreats his assistance & advice. the good father having probed the wounds of his conscience, and brought him to a due sense of his sins, applyed the healing remedy of absolution, on the penitent's declaring himself reconciled to the church of rome. after this, cranstoun seemed to be pretty easy in his mind, but e'er long was seized with a terrible desease in his body, which was swoln to that degree that it was apprehended he would have burst, & felt such torments in every limb & joint, as made him wish for death for some days before he died, which was nov. , .... after the funeral was over, a letter was sent to his mother, the lady dowager cranstoun; to which an answer was soon returned with an order, to secure & seal up all his papers of every kind, & transmit them to his brother the lord cranstoun in scotland and his cloathes, consisting chiefly of laced & embroidered waistcoats, to be sold for the discharge of his debts; all this was punctually complied with. i shall only add, that by the captain's death, his wife came to enjoy the l. a year, the interest of the l. which was his paternal fortune; and by his will, heir to the principal, to support her and her daughter; which was some recompense for the troubles and vexations he had occasioned her. _ii.--captain cranstoun's account of the poisoning of the late mr. francis blandy._ (no. of bibliography, appendix xii.) preface to the publick. as the publick are in great doubts concerning the truth of the cruel, and almost unparalleled murder of the late mr. blandy, of henley upon thames, in oxfordshire, by reason of the mysterious accounts published as the confession of his daughter, who was executed for that cruel parricide, and which were done by her own desire and direction: the following pages are thought necessary to be made publick, by which the world may be satisfied concerning that tragical affair: which is from the words of captain william-henry cranstoun, hitherto supposed, but now out of doubt, to have been concerned with her in that black crime: and also from original letters of hers, and papers found immediately after his decease, in his portmanteau-trunk in his room in the house of mons. maulset, the sign of the burgundy cross, in the town of furnes, in the austrian netherlands, where he died on thursday, the th of november last, and was buried in the cathedral church there, in great funeral pomp, on the second of december. it is thought needless to premise any more, only to assure the publick that what is contained in the following short tract is authentick, and gives an account of the vicissitudes of fortune, which attended captain cranstoun, from the time of his absconding for prevention of his being apprehended, to the time of his death, which was attended with great torments. miss mary blandy, being suspected of poisoning her father, mr. francis blandy, who died in great agonies, on the th of august, , was examined by the mayor and coroner of henley upon thames: and there appearing, upon the oaths of the servants to the deceased, and others, sufficient grounds to think that miss blandy, with the assistance and advice of capt. william henry cranstoun, was the parracide, she was accordingly committed to oxford castle: and a proper warrant and messenger was sent, in order to apprehend the said capt. cranstoun, who was then supposed to be either in northumberland or scotland, with his mother: but the affair being in the news-papers, it reached the knowledge of a certain person of distinction, who was a relation of the captain's, before the messenger and warrant got down, who informed him thereof: upon which the captain thought it most advisable to abscond: and being secreted from that time, in england, till the beginning of march, , when miss was tried at oxford assizes, and found guilty, it was then thought proper for him to get out of the kingdom: as upon her trial it appeared, beyond all doubt, that he was principally concerned in that murder, and furnished her with the powders that compleated the vile deed. on the eighteenth day of march, at which time she lay under sentence of death, he embarked in a vessel for bologne in france, and went by the name of dunbar, a female distant relation of his, of that name, being there at the time: who was married to one r----[ ], and who was there on account of some debts he had contracted in great britain. cranstoun arrived at bologne on the th day of the month of march, which soon being known, he was obliged to be kept secret in that town; as some of the relations of his wife who were officers in one of the scotch regiments in the french service, upon hearing of his being there, declared they would destroy him, not only for his cruel and villainous usage to his wife and child, but also as being a murderer: and went purposely to bologne. he continued at bologne in secret till the th of july last, when he absconded privately in the morning early, with the said r----, and his wife who were obliged to fly, on account of an arret of the parliament of paris, which had ordered him to pay livres, and cost of a law-suit, to the famous or, more properly, infamous captain p-----w,[ ] so well known here: and as that affair was something remarkable, i shall here give the reader a brief relation of it, notwithstanding it is foreign to mr. cranstoun's affair, which, as it will take up but little room, i am almost persuaded will not be disagreeable to the reader. a certain irish nobleman being at bologna, on account of debts he owed in england, capt. p----w being there at the same time, got acquainted with the above-named irish lord. at this time mr. r----, who was married to mr. cranstoun's relation, as above-named, was a merchant in that town, and who, together with many more of the merchants of the place, was taken in very considerably by the said irish lord. the above-nam'd lord having got as deep in debt as he possibly could, and his being so intimately acquainted with the captain, who lived very profusely with my lord, on the money he had got upon credit: this r----, with the rest of that nobleman's creditors, began to press his lordship for their money, and his lordship finding it impossible to weather the storm off much longer, having told them, from time to time, that he was to have great remittances from his steward: and p----w puffing his lordship off greatly to the creditors, his lordship secretly got away from bologne, in a vessel that was bound for ireland. his lordship being gone, the creditors all agreed (affirming that p----w was concerned in facilitating his escape, and cheating them) to apply to the magistrates of the city of bologne for a process against p----w, for their several debts due to them from his lordship, as he was not only concerned in helping him to make his escape, but had partaken largely of the money. upon their application p----w was arrested, and cast by the magistrates of bologne afterwards in the law-suit: who appealing to the parliament of paris, against the decree and judgment of the magistrates of bologne: they on hearing the cause on both sides, reversed the decree of the magistrates of bologne, and issued in may last an arret, that his lordship's creditors should pay to the captain, as damages for his false imprisonment, costs and scandal he had sustained by the prosecution of their suit, livres, besides all his costs in both courts, and also that they should be at the expence of printing and paper, for copies of the said arret, which were to be stuck up on the exchanges, and other publick places, in the several cities and great towns in france; which was accordingly done, the latter end of the said month of may, pursuant to the said arret. mr. cranstoun about this time received a bill of £ from scotland, payable in london, which mr. r---- went privately to london with, and got the money for: which was all the remittances cranstoun ever had to the time of his death, from great britain. mr. r---- being returned to bologne with the cash in july, and not being able to satisfy his part of the arret of the parliament of paris, to the captain, and dreading the fatal consequence thereof, privately absconded, as is related before, with his wife and cranstoun, to ostend in the queen of hungary's territories, as a sanctuary from the arret of the french parliament: where they continued only about fourteen days, and then removed to furnes, and took up their abode at the house known by the sign of the burgundy cross, where mr. r---- died in september, and cranstoun the th of november following. during the time of his living at furnes, he always went by the name of dunbar, and first cousin to mrs. r----. capt. p----w, on the credit of this arret of parliament, put up for a great man: who being known too well at bologne to live there, either with respect or honour, removed to a town in france, call'd somers, nine miles from bologne, in the road to paris, where he took the grandest house in the place: but his fortune being only outside shew, as it was when in england, in september he absconded from thence: and was obliged to fly into the queen of hungary's country for protection, having contracted large debts in france. the captain now began his old tricks; for at brussels, going for a london merchant, he obtained a parcel of fine lace, some pieces of velvets, and other things, to the amount of near £ , for which he gave the gentleman of brussels a pretended bill for £ s. d. of a banker's in london: and on the payment of the said bill, he was to have another large parcel of goods. the bill was sent to england for payment, but the captain had fled before the return of a letter, which informed the tradesman that it was a counterfeit bill: whereupon they pursued him, and soon found that the goods he had obtained were shipped on board a vessel for england, at flushing, a sea-port in zealand, belonging to the states of holland, from which place the captain had been gone three days: that was the last account that mrs. r---- and cranstoun ever heard of him. i shall now proceed to the account given by captain cranstoun, concerning the poisoning of mr. blandy: in which i shall insert three letters, bearing date the th of june, the th of july, and the th of august, : all directed for the honourable william henry cranstoun, esq., which were found among his papers at his death: all being judged by the near similitude of the writings to have been wrote by one person: and tho' no name was subscribed at the bottom of either, yet, by their contents, they plainly shew from whom they were sent. mr. cranstoun, at his first coming into france, talked very little concerning the affair of mr. blandy's death: but some time after, having read the account published in london (by the divine that attended miss blandy in her confinement) as her own confession, and at her desire: which was brought him by mr. r----, when he came from london, from receiving the £ bill before-mentioned, he began to be more open upon that head to mr. r----, particularly in vindicating himself, and blaming her for ingratitude, for he said, she was as much the occasion of the unfortunate deed as himself: which will more fully appear from the following relation which he gave of it himself. that they having contracted so great a friendship and mutual love, which was absolutely strengthened by a private marriage of her own proposing, lest he should prove ungrateful to her (which he said were her own words) after so material an intimacy, and leave her, and go and live with his real wife, and her mother being dead, she and he, the first time they met after her mother's decease (which he believed was about or months before mr. blandy died, and which was the last time he was at henley) began to consult how they should get the old gentleman out of the way, she proposing, as soon as they could get possession of the effects of the father, to go both into northumberland, and live upon it with his mother: that he did propose the method that was afterwards put in practice, and she very readily came into it, and the whole affair was settled between them, when he left henley the last time, and never before. he frequently declared, that he believed her mother was a very virtuous woman, and blamed her much, for giving such a ludicrous, as well as foreign account, of some transactions between him and her mother, in her narrative: and hoped, he said, that what was published as her solemn declaration, that she did not know (_sic_) that the powder which he had sent her, with some peebles, and which she had administered to her father, were of a poisonous quality, was a falsehood, and published without her knowledge, as it appeared to him the same was not done till after she was dead: for that she was sensible of what quality they were, and for what purpose sent, and particularly by the effect they had on a woman, who was a servant in her father's family, sometime before, as she had wrote him word. it will not be improper, in this place, to insert the letters, as they tend to the confirmation of what mr. cranstoun had declared. letter i. dear willy,--these, i hope, will find you in health, as they leave me, but not in so much perplexity: for i have endeavoured to do as directed by yours, with the contents of your presents, and they will not mix properly. the old woman that chars sometimes in the house, having drank a little liquor in which i had put some is very bad: and i am conscious of the affair being discovered, without you can put me into some better, or more proper method of using them. when you write, let it be as mystically as you please, lest an interception should happen to your letter, for i shall easily understand it. when i think of the affair in hand, i am in great distress of mind, and endeavour to bear up under it as well as i can: but should be glad if you was near me, to help to support my fleeting spirits: but why should i say so, or desire any such thing, when i consider your cogent reasons for being at a distance: as it might, as soon as the affair is compleated, be the occasion of a bad consequence to us both. i have nothing more to add, but only desire you would not be long before you send me your answer. yours affectionately, &c. june , . (the superscription of this letter, and the next following, was almost rubbed out, so could not be exactly seen: but as the word berwick was quite plain, as well as his name, it is supposed they were directed as the third letter was.) letter. ii. dear willy,--i received yours safe on the th instant, and i am glad to hear you are well. i particularly understand what you mean, and i'll polish, the peebles as well as i can, for there shall not be wanting any thing in my power, to do the business effectually. they begin to come brighter by the new method i have taken: and as soon as i find the good effects of the scheme, you shall have intelligence with all convenient speed. adieu, for this time, my spirits damping much: but pray god keep us in health, till we have the happiness of seeing each other. yours affectionately, &c. july , . letter iii. dear willy,--i have been in great anxiety of mind since last post-day, by not hearing from you. your letter of the th of last month, i received safe yesterday, and am somewhat enlivened in my spirits by understanding you are well. i am going forward with all convenient speed in the business: and have not only a fatiguing time of it, but am sometimes in the greatest frights, there being constantly about me so many to be kept insensible of the affair. you may expect to hear again from me soon: and rest yourself assured, that tho' i suffer more horrors of mind than i do at this time, which i think is impossible, i will pursue that, which is the only method, i am sensible, left, of ever being happy together. i hope, by my next, to inform you that the business is compleated. yours affectionately, &c. august , . directed for the honourable mr. william henry cranstoun, to be left at the post-house, at berwick. by these letters, and the account which cranstoun himself had given, it plainly appears that the murder of mr. blandy had been consulted some time: and that it must be supposed that the powders had been attempted, if not absolutely given him in his victuals, or liquor, before the time they were put into his gruel, as was discovered by the maid-servant, and which proved the cause of his death. also by these letters it is most reasonable to believe that what was meant in the last by the words, "tho' i suffer more horrors of mind than i do at this time, i will pursue": that it came from the unfortunate and infatuated miss blandy, and that poisoning her father was then fully resolved on by her: which reasonable supposition is much strengthened by the subsequent words in the same letter, viz., "i hope in my next to inform you that the business is compleated." and i really think it can admit of no doubt, as the administring the powders to him in his water-gruel, which was the cause of his death, was but four days after the date of this letter, for it appears by its date to be sent on thursday the first of august, and monday the fifth of the same month, she acknowledged she put the powders into the gruel: which was proved by dr. addington and dr. lewis, on her trial, to be the cause of mr. blandy's death, who languished till the th of the same month, when he expired. that other part of the same letter, where 'tis said, "i am going forward with, all convenient speed in the business, and have not only a fatiguing time of it, but am sometimes in the greatest fright: there being so many constantly about me, to be kept insensible of the affair," is plain enough meant that when she thought of the wicked deed she was about to perform, it brought her conscience to fly in her face, as she advanced: and that the servants of the house were the great obstacles in her way. i shall not takes up the reader's time any longer, in making observations on the letters, only observe in general that they all shew that the writer was sensibly touched, at such times as they were endeavouring to practice the hellish device, to destroy the old gentleman; and also, that sometimes their consciences led them to think of what the consequences of such an enormous crime must be. i shall now return to mr. cranstoun. while he was at furnes he was very thoughtful, and was never observed to be once in a merry humour: frequently staying in his room all day, except meal-times: and praying very devoutly. on his finding himself once very ill, tho' it was six weeks before he died (for he recovered and went abroad after that illness), he made a will, all which he wrote with his own hand: in which he left, after paying his debts, at furnes, to m. malsot, where he lived, and his funeral charges, all his paternal fortune, of £ , to his daughter by his wife, who lives with her relations, at hexham, in northumberland. this £ which he left in his will to his child, was what was left him on the death of his father: and the estate of his elder brother, the lord cranstoun, was charged with the payment of it: and he received £ per annum, in lieu of the principal sum, £ per annum of which was settled by order of the lords of sessions, in scotland, on his wife, at the time when he had villainy sufficient to bring a cause before the court of sessions, to set aside his marriage: and from that time she has received it, for the support of her and her child. the gentlewoman he had married, and was wicked enough to deny,[ ] was the daughter of the late sir david murray, baronet, and sister of the present sir david murray, who is now in the service of the king of france, in the east indies: this young gentleman was unfortunate enough to take part with the young pretender in the late rebellion, being nephew to mr. murray, of broughton, the pretender's then secretary: and after the battle of culloden was taken prisoner, and tried at carlisle, where he received sentence of death as a rebel: but for his youth, not being then above eighteen years of age, he was reprieved and transported. one circumstance that appeared on the trial of the legality of his marriage with miss murray was very particular, as he had the folly, as well as the wickedness, to deny the same: and that was, a marriage-settlement of £ per annum, which he had made on her in his own hand-writing, was produced and proved: which was confirmed by the lords of sessions. after the burial of mr. cranstoun, at furnes, a letter was sent to his wife, at hexham, to inform her of it, and another was sent to the lady dowager cranstoun, his mother: to the last of which an answer was soon returned, which was to desire, that all his papers and will might be sealed up, and sent to his brother, lord cranstoun, in scotland, with an account of what was owing, and to whom, in order for their being paid, but his cloaths, which consisted of some very rich waistcoats, were desired to be sold at furnes: which was done accordingly. he frequently declared his life was a burthen to him, and in his death he suffered great torments: for his body was so much swoln, that it was expected he would have bursted for several days before he died. as miss blandy had given an account in her narrative, that it was him who first proposed a private marriage with each other, he solemnly declared, just before he died, that he could not be positive which of them proposed it first: but that he was certain, that it was miss blandy that desired and insisted it should be so, and was very pressing till it was done: and he often called upon god almighty to forgive both his crimes, and those of miss blandy, particularly, he said hers, as she had died with asserting so many enormous falsities contained in that account, said to be published by her orders and inspection. appendix x. extract from a letter from dunkirk anent the death of cranstoun. (from the _london magazine_, february, .) on dec. last died at the sign of the burgundy-cross in furness, a town belonging to the queen of hungary, about english miles east of this place, capt. william henry cranstoun, aged forty-six. his illness did not continue above days, but the last three his pains were so very great, and he was swelled to such a degree, that it was thought by the physician and apothecary that attended him, that he would have burst, and by the great agonies he expired in, he was thought to be raving mad. as he had just before his death embraced the roman catholick religion, he was buried in great solemnity, the corporation attending the funeral, and a grand mass was said over the corpse in the cathedral church, which was finely illuminated, and in which he was buried. some little time before he died he made a will, which was sealed up in the presence of one mrs. ross (whose maiden name was dunbar, and which name he went by) and two other persons who were also his acquaintance. the will he signed with his own name, and gave all his fortune which was in his brother's hands to his child, who is now living at hexham in northumberland, with her mother, to whom he had so villainously denied being married, and for which he often said, a curse had attended him for injuring the character of so good a wife. when he was asked concerning mr. blandy's murder, he often reflected on himself greatly, yet said, that miss blandy ought not to have blamed him so much as she did, but the particulars of which he said should never be known till his death. he first made his escape out of england the latter end of last february to bologne; but as soon as he was known to be there, was obliged to be kept concealed by mrs. ross, some relations of his wife's, who were in that country, threatening revenge for his base usage to her; so that miss ross and he were obliged at last to fly from bologne by night, which was on the th of july last, and lived in furnes from that time. the fortune in his brother's hands, which he has left to his child, by his will, is £ , his patrimony which he formerly received per cent. for, but on his being cast before the lords of session in scotland, in the cause concerning the validity of his marriage, which was confirmed, £ out of the £ was ordered by their lordships to be paid the wife annually for the support of her and the child, which she received, and has lived ever since with some of her relations in hexham aforementioned. it was further said that before he died he declared that he and miss blandy were privately married before the death of her mother, which was near two years before mr. blandy was poisoned. appendix xi. letter from john riddell, the scots genealogist, to james maidment, regarding the descendants of cranstoun. (from the original ms. in the possession of mr. john a. fairley.) edinburgh, april th, . melville street, my dear sir,--i herewith return your blandy and cranstoun collections, with many thanks. i certainly understood from the late james rutherford, esqr., of the customs, edinburgh, a cadet of the rutherfords of edgerston, and through his mother, a female descendant--one of the nearest--of the edmonstones of corehouse, that it was in consequence of the great exertions of an edmonstone of corehouse that the guilty cranston was first concealed, and afterwards enabled to escape abroad. i think he said that the edmonstones of corehouse were descended, or relatives, of the cranstons, but that the latter were not descended of the former, or could be in any respect their heirs. a greater intimacy, however, subsequently arose between the two families, owing to the friendly exertions of the edmonstone as above, that ended in a superannuated lady, the late miss edmonstone of corehouse, entailing or settling her estate upon the present george cranstoun of corehouse,[ ] nephew of the poisoner, to the exclusion of the late roger ayton, and her other heirs at law. in this manner the cranston family may be said to have benefitted by his atrocity, and advantage to have resulted from evil; the friendship or kindness of the edmonstones having been rivetted and increased towards the relatives of him they had rescued, and whom, on that account, they additionally cherished--this i learnt from the previous authority referred to. nay, the old lady wished above all things that the _ci-devant_ judge should marry and continue his line, a thing that for some special reason he did not desire, and found it difficult to stave off to her. this also from the same authority. though very old, no legal ground could be found on enquiry by which her settlement could be voided. the following excerpt from the statement of the evidence submitted to the jury, on the occasion of the present admiral sir thomas livingstone of westquarter, baronet, being served heir-male of james, first earl of calender in , in which i was professionally engaged, shews what became of the issue of william henry cranstoun, the poisoner. alexander (livingstone) of bedlormie and ogilface, afterwards sir alexander livingstone, bart., having succeeded to the scottish baronetage of westquarter and to the estates of that branch of the house of livingstone, was twice married; first to anne atkinson, daughter of john atkinson of london, and secondly to jane cranston, daughter of the honourable william henry cranston, fifth son of the lord cranston. by his first marriage he had seven sons, alexander, william, thomas, the claimant (still alive), john, thurstanus, james and george, and one daughter, anne, married to the rev. john fenton of torpenhow, in the county of cumberland. by his second marriage he had two sons, francis and david, both dead unmarried, and one daughter, elizabeth, married to james kirsopp, esquire, of the spital, northumberland. i remain, yours sincerely, john riddell. appendix xii. bibliography of the blandy case. (compiled by mr. horace bleackley.) i. contemporary tracts. . _an authentic narrative of that most horrid parricide_. (printed in the year . name of publisher in second edition, m. cooper.) . _a genuine and full account of the parricide_ committed by mary blandy. oxford: printed for and sold by c. goddard in the high st., and sold by r. walker in the little old bailey, and by all booksellers and pamphlet shops. (published november , .) . _a letter from a clergyman to miss mary blandy with her answer thereto_. ... as also miss blandy's own narrative. london; printed for m. cooper at the globe in paternoster row. . price six-pence. brit. mus. (march , .) . _an answer to miss blandy's narrative_. london; printed for w. owen, near temple bar. . price d. brit. mus. (march , .) . _the case of miss blandy considered_ as a daughter, as a gentlewoman, and as a christian. oxford; printed for r. baldwin, at the rose in paternoster row. brit. mus. (april , .) . _original letters to and from miss blandy and c---- c----_, london. printed for s. johnson, near the haymarket, charing cross. . brit. mus. (april , .) . _a genuine and impartial account of the life of miss m. blandy_. w. jackson and r. walker. (april , .) . _miss mary blandy's own account_. london: printed for a. millar in the strand. (price one shilling and sixpence). n.b. the original account authenticated by miss blandy in a proper manner may be seen at the above a. millar's. brit. mus. (april , . the most famous apologia in criminal literature.) . _a candid appeal to the public, by a gentleman of oxford_. london. printed for j. clifford in the old bailey, and sold at the pamphleteer shops. . price d. brit. mus. (april , .) . _the tryal of mary blandy_. published by permission of the judges. london: printed for john and james rivington at the bible and crown and in st. paul's churchyard. . in folio price two shillings. vo. one shilling. brit. mus. (april , .) . _the genuine histories_ of the life and transactions of john swan and eliz jeffries, ... and miss mary blandy. london: printed and sold by t. bailey opposite the pewter-pot-inn in leadenhall street. (published after april , .) . _an authentic and full history of all the circumstances of the cruel poisoning of mr. francis blandy_, printed only for mr. wm. owen, bookseller at temple bar, london, and r. goadby in sherborne. brit. mus. (without date. from pp. - the pamphlet resembles the "answer to miss blandy's narrative," published also by wm. owen.) . _the authentic trials of john swan and elizabeth jeffryes_.... with the tryal of miss mary blandy. london: printed by r. walker for w. richards, near the east gate, oxford. . brit. mus. (published later than the "candid appeal.") . _the fair parricide_. a tragedy in three acts. founded on a late melancholy event. london. printed for t. waller, opposite fetter lane. fleet street (price /-). brit. mus. (may , .) . _the genuine speech of the hon mr. ----_, at the late trial of miss blandy. london: printed for j. roberts in warwick lane. . (price sixpence.) brit. mus. (may , .) . _the x x x x packet broke open_, or a letter from miss blandy in the shades below to capt. cranstoun in his exile above. london. printed for m. cooper at the globe in paternoster row. . price d. brit. mus. (may , .) . _the secret history of miss blandy_. london. printed for henry williams, and sold by the booksellers at the exchange, in ludgate st., at charing cross, and st. james. price s. d. brit. mus. (june , . a sane and well-written account of the whole story.) . _memories of the life of wm. henry cranstoun, esqre_. london. printed for j. bouquet, at the white hart, in paternoster row. . price one shilling. brit. mus. (june , .) . _the genuine lives of capt. cranstoun and miss mary blandy_. london. printed for m. cooper, paternoster row, and c. sympson at the bible warehouse, chancery lane. . price one shilling. brit. mus. . _capt. cranstoun's account of the poisoning of the late mr. francis blandy_. london: printed for r. richards, the corner of bernard's-inn, near the black swan, holborn. brit. mus. (march - , .) . _memories of the life and most remarkable transactions of capt. william henry cranstoun_. containing an account of his conduct in his younger years. his letter to his wife to persuade her to disown him as her husband. his trial in scotland, and the court's decree thereto. his courtship of miss blandy; his success therein, and the tragical issue of that affair. his voluntary exile abroad with the several accidents that befel him from his flight to his death. his reconciliation to the church of rome, with the conversation he had with a rev. father of the church at the time of his conversion. his miserable death, and pompous funeral. printed for m. cooper in paternoster row; w. reeve in fleet street; and c. sympson in chancery lane. price d. with a curious print of capt. cranstoun. brit. mus. (march - , . as the title-page of this pamphlet is torn out of the copy in the brit. mus., it is given in full. from pp. - the tract is identical with "the genuine lives," also published by m. cooper.) . _parricides!_ the trial of philip stansfield, gt., for the murder of his father in scotland, . also the trial of miss mary blandy, for the murder of her father, at oxford, . london ( ). printed by j. dean, wardour st., soho for t. brown, drury lane and w. evans, market st., st. james's. brit. mus. . _the female parricide_, or the history of mary-margaret d'aubray, marchioness of brinvillier.... in which a parallel is drawn between the marchioness and miss blandy. c. micklewright, reading. sold by j. newbery. price /-. (march , .) lowndes mentions also:-- . _an impartial inquiry into the case of miss blandy_. with reflections on her trial, defence, bepentance, denial, death. . vo. . _the female parricide_. a tragedy, by edward crane, of manchester. . vo. . _a letter from a gentleman to miss blandy_ with her answer thereto. . vo. (possibly the same as "a letter from a clergyman.") the two following are advertised in the newspapers of the day:-- . _case of miss blandy and miss jeffries_ fairly stated, and compared.... r. robinson, golden lion, ludgate street. (march , .) . _genuine letters between miss blandy and miss jeffries_ before and after their conviction. j. scott, exchange alley; w. owen, temple bar; g. woodfall, charing cross. (april , .) . broadside. _execution of miss blandy_. pitts, printer, toy and marble warehouse, great st. andrew's st., seven dials. brit. mus. . _the addl. mss._, . manuscript department in the brit. mus. ii. contemporary newspapers and magazines. . _read's weekly journal_, march and april ( ), february ( ). . _the general advertiser_, august-november ( ), march and april ( ). . _the london evening post_, march and april ( ). . _the covent garden journal_ (sir alexander drawcansir), february, march, and april ( ). . _the london morning penny post_, august and september ( ). . _gentleman's magazine_, pp. , - ( ), pp. - , , , ( ), pp. , ( ), p. , pt. ii ( ). . _universal magazine_, pp - , , ( ). . _london magazine_, pp. , , ( ), pp. , , ( ), p. ( ). [in addition to the two london editions of the authorised report of the trial specified in no. of the bibliography, it may be noted that the trial was reprinted at length in the same year at dublin, and in an abridged form at london and edinburgh, all vo.--ed.] [illustration: the scotch triumvirate (_from a satirical print in the collection of mr. horace bleackley_.)] appendix xiii. description of satirical print, "the scotch triumvirate." (from catalogue of prints and drawings in the british museum, vol. iii., part ii., p. .) "the scotch triumvirate." sr ***g sc. (? strange, w.) ram**y pix'd.* [ ]. *these signatures were, doubtless, used with a satirical intention. this engraving displays a stage, as if erected for an execution. the above title is inscribed on a gallows, under which is james lowry, with a rope about his neck, and in one hand a cudgel, inscribed "the royal oke fore mast," see below; a label in his mouth is inscribed, "_lowry; the laird of the land; sung by sr. w----m. lawther._" at his feet rises the ghost of hossack, saying, "_you suffered justly, for wipping me to death. k. hossack._" at one side stands mr. william henry cranstoun, with a rope round his neck, and crossing his body like a riband of knighthood; in his pocket is "_powder to clean pebbels_" in his mouth a label, "_jammy will save me._" before him rises the ghost of miss mary blandy, saying, "my honour, cra----s ruin'd me." the ghost of her mother rising at the side of the platform, and wringing her hands in pain, replies, "child he's married!" at cranstoun's feet is an advertisement of "_scotch powder to cure the itch._" at the other side is major james macdonald, with a halter round his neck & crossing his body, as above; in his hand is a paper inscribed "_s. sea anuities d-am my school master._" in his mouth is a label, bearing, "_i have escaped hanging i own i'm a highland villain._" in front is what is intended for a mock shield of scotland. the shield is perforated with holes for eyes and a mouth so as to represent a mask, and it is charged with a crowned thistle; the supporters are an ass's head, plaided and wearing a scotch bonnet, and a peacock. motto, "_impudent, rebellious, lazy and proud._" beneath is engraved:-- "proud scot, beggarly scot, witness keen, old england has made you all gentlemen." james lowry, who had commanded the "molly" merchantman, was tried february , , for the murder of kenrich hossack, by whipping him to death; after a trial of eight hours he was found guilty. "the royal oak foremast" was the name he gave to a stick used in his manner of enforcing naval discipline. on the th of march he was hanged at execution dock, and his body was hung in chains at blackball. other acts of cruelty involving the deaths of the victims were charged on him. (see _the gentleman's magazine_, , p. ; , pp. , , .) the exclamation of miss blandy referring to cranstoun is nearly the same as that uttered by the speaker, as deposed by mrs. lane, a witness at the trial, when she was arrested during a wandering flight between the death of her father and the returning of the verdict of "wilfull murder." the witness declared miss blandy said "the damned villain, cranstoun!--my honour to him will be my ruin," etc. the exclamation of the ghost of mrs. blandy refers to the fact that cranstoun had been married in , according to the scotch process, to anne, daughter of sir david murray, whom he repudiated two years after. cranstoun was brother of james, afterwards sixth lord cranstoun, probably the "jammy" refered to in his speech as above quoted. footnotes: [ ] henry bathurst ( - ), solicitor-general to the prince of wales, ; judge of the court of common pleas, ; lord chancellor, ; succeeded his father as earl bathurst, ; and in the following year presided as lord high steward at the trial of the duchess of kingston. he resigned the seal in .--ed. [ ] this quotation is the only reference made during the trial to this important letter, which, from the report, does not appear to have been formally "put in." see introduction.--ed. [ ] so far as appears from the report of the trial, no proof was offered that these words were in the handwriting of cranstoun. see introduction.--ed. [ ] the earl of macclesfield and lord cadogan, the local magistrates who undertook the preliminary work of getting up the case for the prosecution.--ed. [ ] afterwards sir richard aston, and one of the commissioners of the great seal on the death of lord chancellor yorke in .--ed. [ ] born, ; died, . practised as a physician at reading until , when he removed to london. chatham was one of his patients. as a specialist in mental diseases he was called in to attend george iii. in . he was the father of henry addington, first viscount sidmouth.--ed. [ ] the doctor intended to have excepted the stone found in mr. blandy's gall-bladder.--_original note_. [ ] born, ; died, . practised in london till , when he removed to kingston-on-thames. he was eminent for his writings on the pharmacopoaeia.--ed. [ ] saturday. see _infra_.--ed. [ ] this lady was mary blandy's godmother. she died in at the age of . it is remarkable that the prisoner's fortitude remained unshaken throughout the trial except when mrs. mounteney was in the box.--ed. [ ] the counsel for the prisoner waived the objection to this as hearsay evidence, because the counsel for the crown assured them they would call betty binfield herself next.--_original note_. [ ] according to the practice then in use, counsel for the defence were not permitted to address the jury.--ed. [ ] heneage legge ( - ), second son of william, first earl of dartmouth, was called to the bar, , took silk in , and was appointed one of the barons of exchequer in .--ed. [ ] the celebrated catherine hayes, heroine of the _newgate calendar_ and thackeray's _catherine_.--ed. [ ] george carre of nisbet, son of john carre of cavers, admitted advocate th june, . he became sheriff of berwick in , and wasraised to the bench as lord nisbet, st july, . he died at edinburgh, st february, .--ed. [ ] charles erskine, lord tinwald.--ed. [ ] george parker, second earl of macclesfield, son of lord chancellor macclesfield, was a famous philosopher and president of the royal society. he had the principal share in preparing the act of parliament for the introduction of the change in the calendar in , known as the "new style."--ed. [ ] charles, second baron cadogan of oakley, died . his wife was a daughter of sir hans sloane.--ed. [ ] william, eighth earl of home, first cousin of the hon. william henry cranstoun, died . their mothers were lady anne and lady jean kerr, daughters of the second marquess of lothian, and their daughter lady mary married alexander hamilton of ballincrieff.--ed. [ ] afterwards fourth marquess of lothian, first cousin of the hon. william henry cranstoun. he died in .--ed. [ ] probably the rev. william stockwood, rector of henley.--ed. [ ] winchester. [ ] son of robert, first marquis of lothian and grand-uncle of the hon. wm. henry cranstoun. born, . he followed a career of arms, and died unmarried nd february, . his natural son, captain john kerr, courted his "cousin," lady jane douglas of the "douglas cause," and was killed in by her brother archibald, duke of douglas. lord mark was not friendly with his niece, lady jane.--ed. [ ] george, st earl of crauford, born . succeeded to that title, ; died .--ed. [ ] william, fifth lord cranstoun, married, , lady jean kerr, and died in january , - .--ed. [ ] _née_ lady jean kerr, died march, .--ed. [ ] the hon. anne cranstoun married gabriel selby of paston, northumberland, died .--ed. [ ] mr. c.j.s. thompson, in his _mystery and romance of alchemy and pharmacy_, remarks, "about the sixteenth century philtres came to be compounded and sold by the apothecaries, who doubtless derived from them a lucrative profit. favourite ingredients with these later practitioners were mandragora, cantharides, and vervain, which were supposed to have satanic properties. they were mixed with other herbs said to have an aphrodisiac effect; also man's gall, the eyes of a black cat, and the blood of a lapwing, bat, or goat." the same authority states that in the seventeenth century "hoffman's water of magnanimity," compounded of winged ants, was a popular specific.--ed. [ ] appendix iii. [ ] frederick, prince of wales, died th march, .--ed. [ ] ross. [ ] plaistow. [ ] this denial is the more odd as the murrays of stanhope and the kerrs of lothian (captain cranstoun's maternal relatives) had already a marriage tie. lord charles kerr of cramond (died ), had married janet, eldest daughter of sir david murray of stanhope, and her daughter jean janet, born , was the second wife of william, third marquess of lothian, captain cranstoun's uncle.--ed. [ ] later, lord corehouse, one of the senators of the college of justice.--ed. the tryal of _william penn & william mead_ for causing a tumult _at the_ sessions _held at the_ old bailey _in_ london _the_ st, d, th, _and_ th _of_ september * * * * * _done by themselves_ transcribed _from the_ compleat collection _of_ state tryals first published in _and_ edited by don c. seitz _to the memory_ of thomas jefferson which needs frequent refreshing foreword liberty, equality and fraternity have been preached through all time but it was left for william penn, the quaker, to come nearer establishing the ideal of this trinity than any other being called human before or since his day. it may be argued that more was due to the faith he held than to the man. yet this must be answered that it took some more than ordinary man to absorb and fulfill the requirements of such a faith. there have been many quakers and but one penn! born on the th of october, , in the angry days of the roundhead revolt, his early years were spent in an intensely religious atmosphere that saturated his soul, but at the same time bred detestation of bigotry and persecution. if he seemed to be performing out of his class because of his family's eminence, it should be recalled that this was acquired, not inherited. his father, admiral sir william penn, was the son of giles penn, a merchant navigator trading into the mediterranean, and his wife margaret jasper, daughter of hans jasper, a sea trader of rotterdam: from these forbears the youth received independence of thought and firmness of mind. he was therefore less of an anomaly than he appeared to be. the rigid religious rule of cromwell, under which he had spent his youthful years, had passed and in its stead befell a period of loose living and easy ways. puritanism, though speaking and acting in the name of liberty, possessed but little of that quality either for mind or body. in setting up for the great cause he fared as well, or better, with all his persecutions, than did his quaker brethren in that new england which had been founded for opinion's sake. entering oxford at fifteen the boy soon fell under the influence of thomas loe, a preacher of quaker doctrine and became imbued with his teachings. this clashed at once with his surroundings and the college requirements. he refused to attend chapel or to wear the customary gown, deeming it a sort of surplice. a little group of students who had accepted loe's principles joined him in this obduracy, going so far as to strip the gowns from the persons of willing wearers. this led to his expulsion. samuel pepys mentions him in his diary on october st, , as having "but come from oxford" and meeting his father at pepys' house. on the th of january, , the admiral discussed with pepys a plan for sending his son to cambridge or some private college. pepys undertook to write dr. fairbrother and inquire into the merits of hezekiah burton at magdalen, as an instructor for the difficult youth. it was impossible to fit him into any school under the dominion of the church of england and in wrath his father forbade him the house. his mother interceded, with the result that he was sent to europe for the grand tour, presumably with outward success, for on august , , mrs. pepys informs samuel that "mr. pen, sir william's son, is come back from france and come to visit her. a most modish person, grown, she says, a fine gentleman." after dinner on the th of the same month "comes mr. pen to visit me, and staid an hour talking with me. i perceive something of learning he has got, but a great deal, if not too much of the vanity of the french garb and affected manner of speech and gait. i fear all real profit he hath made of his travel will signify little." the home coming soon stripped penn of the "vanity of the french garb," and he became once more a problem. he tried the study of law, but could not interest himself in it. to keep him out of the way and repress his dangerous thoughts he was given the management in , of an estate owned by the admiral in ireland, where he went and did as he pleased, falling in again with thomas loe and resuming his quaker views. december th, , pepys records a call from mrs. turner "...and there, among other talk, she tells me that mr. william pen, who is lately come over from ireland, is a quaker again, or some very melancholy thing; that he cares for no company, nor comes into any; which is a pleasant thing, after his being abroad so long, and his father such a hypocritical rogue and at this time an atheist." this return he signalized by intense activity in pressing quakerism upon the public, to the vexation of his father who was one of the notables of england, as admiral both under cromwell and the king. he had commanded the fleet of the lord protector which wrested the rich island of jamaica from spain and as one of the three commissioners of the navy, laid the foundation for that british fleet which has ever since played so large a part in the history of the world. he was the practical man of the commission, from whom james, duke of york, afterwards, and very briefly king, took most of his advice. he reformed the higgledy-piggledy naval tactics of the time and taught the commanders to attack the enemy in line, the most important change in the sea annals of his country. knighted in for service against the dutch he failed of the peerage because of the public prejudice against his son, which deterred the king from giving him an honor as high as he deserved. as clerk of the acts, pepys was much in contact with him socially and officially. the famous diary teems with references, many of them convivial, others most unkind. he was faithful to the commonwealth as long as it was faithful to itself. perceiving that it could not hold together after the death of cromwell he joined with george monk in bringing about the restoration of the stuarts. against this background of paternal distinction, the young reformer shone invidiously and brought his father great chagrin by his association with carpenters and weavers in their non-conformist agitations. he preached in poor halls and in the streets. the newspaper, not having arrived, he took to pamphleteering to spread his doctrines. this activity reached a crisis in . writing in his diary under date of february , , pepys says: "...felling hath got me w. pen's book against the trinity. i got my wife to read it to me; and i find it so well writ as, i think, it is too good for him ever to have writ it, and it is a serious sort of book not fit for everybody to read." the extended title of this work was "the sandy foundation shaken--or those ...doctrines of one god subsisting in three distinct and separate persons; the impossibility of god's pardoning persons by an imputative refuted from the authority of scripture testimonies and right reason," etc. it was a drastic review of the doctrine of the trinity and as the title implies, undertook to prove that the majestic edifice of the state church was not founded upon a rock. it created much excitement and speedily landed its author in the tower. here he remained nine months, unrepentant and writing more pious sedition, to wit: "no cross no crown," and "innocency with her open face." these were further polemics against episcopacy. the king having no heart for persecution, and the duke of york, who was a firm friend, contrived to have the prisoner released on the th of august and turned over to his father to be transported to some spot where he would be less troublesome. this plan was not seriously carried out. indeed the admiral's days were numbered. he died after a year's illness, on the th of september, . penn's prominence and influence increased with the death of his father. it was plain that no ordinary mind directed his actions. respect followed. he took much part in public matters and as umpire in a dispute between fenwick and byllinge, two quakers, over some land rights in new jersey, he developed an interest in the new world and planned to found in it a place of refuge for those persecuted in old and new england for opinion's sake. this desire was readily carried out. by fortunate chance the crown owed admiral penn's estate some $ , . to pay this debt and be rid of an agitator, the shrewd king made an easy adjustment in by handing over to the heir a vast province between the delaware and the ohio, in return for an annual tribute of two beaver skins, to be paid for ninety-nine years. here the idealist created his elysium and came as close to making one as the curious animal he sought to benefit would permit. the king set forth in writing the grant that it was due "the memory and merits of sir william penn in divers services, and particularly his conduct, courage and discretion under our dearest brother, james, duke of york, in that signal battle and victory fought and obtained against the dutch fleet commanded by the heer van opdam, in ." not to be outdone by his royal brother, james threw in the province of delaware to which he held the fee, "out of a special regard to the memory and many faithful and eminent services heretofore performed by the said sir william penn to his majesty and royal highness." this under date of august st, . it was penn's purpose to call his paradise sylvania, because of its wooded vales, but the king, with his obligation to the admiral well in mind neatly prefixed "penn" to the fanciful selection and it became justly and rightly "pennsylvania" not in memory of william, but of his valiant father. charles ii was an able politician and understood human nature. often accused of ingratitude and seldom deserving the charge, with a willingness to perform a good action as readily as a bad one, he acted perhaps in languid memory of the mistake made by his heedless father when he stayed the departure of cromwell for the new world, where he had resolved to go "and never see england more,"--determining that there should be no repetition of history so far as he was concerned by repressing a zealot in narrow quarters near home. thus charles for once at least, belied the couplet scrawled upon his chamber door by the ribald earl of rochester: here lies our sovereign lord the king whose word no man relies on; he never says a foolish thing nor ever does a wise one. his sayings, charles aptly replied, were his own; his acts those of his ministers. he ordered well indeed when he placed penn where he did in the new world and he meant wisely when he decreed that the red races should possess, free and forever, the lands beyond the alleghanies. with penn's venture we need have no more to do than to recall that so long as his control lasted or his wishes extended, the pennsylvania indians and their cousins of new york and ohio, were at peace with the whites; that his words and those of his agents were trusted; that pennsylvania sheltered the persecuted palatines and that the liberty bell first rang in the city he had named philadelphia--the city of brotherly love! the trial here recited began in london, on the first of september, , a fortnight before his father's death, while the disturbance of which it was the outgrowth, occurred on the fourth of august preceding. the text is repeated from the report embedded in the second volume of the four great folios, comprising "a compleat collection of state tryals," covering the period of english justice and injustice from the reign of king henry the fourth to the end of that of anne, printed for six venturesome london booksellers, timothy goodwin, john walthoe, benjamin tooke, john darby, jacob tonson, and john walthoe, junior, in , where is found this first record of a legal effort to punish free speech among the english race--and by the same token to vindicate it. reported by the accused, it no less reads fair. the "observer" whose comments interlard and conclude the "tryal" was penn. it was a rare proceeding in which both prisoners and jury ended up in jail for their obduracy in maintaining that right to speak as we may, which is still one of the most difficult to maintain, and yet remains the foundation of human liberty. d. c. s. cos cob, conn., march , . the tryal of william penn _and_ william mead, _at the sessions held at the_ old baily _in_ london, _the st, rd, th, and th of_ september, _ . done by themselves_. present sam. starling, _mayor_ tho. howel, _recorder_. tho. bloodworth, _alderman_. william peak, _alderman_. john robinson, _alderman_. richard ford, _alderman_. joseph shelden, _alderman_. john smith, james edwards, richard browne, _sheriffs_. cryer. o yes, _thomas veer, edward bushel, john hammond, charles milson, gregory walklet, john brightman, william plumsted, henry henley, thomas damask, henry michel, william lever, john baily_. the form of the oath. "you shall well and truly try, and true deliverance make betwixt our sovereign lord the king, and the prisoners at the bar, according to your evidence. _so help you god_." that _william penn_, gent. and _william mead_, late of _london_, linnen-draper, with divers other persons to the jurors unknown, to the number of , the th day of _august_, in the d year of the king, about eleven of the clock in the forenoon, the same day, with force and arms, _&c_. in the parish of _st. bennet gracechurch_ in _bridge-ward, london_, in the street called _gracechurch-street_, unlawfully and tumultuously did assemble and congregate themselves together, to the disturbance of the peace of the said lord the king: and the aforesaid _william penn_ and _william mead_, together with other persons to the jurors aforesaid unknown, then and there so assembled and congregated together; the aforesaid _william penn_, by agreement between him and _william mead_ before made, and by abetment of the aforesaid _william mead_, then and there, in the open street, did take upon himself to preach and speak, and then and there did preach and speak unto the aforesaid _william mead_, and other persons there, in the street aforesaid, being assembled and congregated together, by reason whereof a great concourse and tumult of people in the street aforesaid, then and there, a long time did remain and continue, in contempt of the said lord the king, and of his law, to the great disturbance of his peace; to the great terror and disturbance of many of his leige people and subjects, to the ill example of all others in the like case offenders, and against the peace of the said lord the king, his crown and dignity. what say you, _william penn_ and _william mead_, are you guilty, as you stand indicted, in manner and form, as aforesaid, or not guilty? penn. it is impossible, that we should be able to remember the indictment verbatim, and therefore we desire a copy of it, as is customary in the like occasions. recorder. you must first plead to the indictment, before you can have a copy of it. pen. i am unacquainted with the formality of the law, and therefore, before i shall answer directly, i request two things of the court. first, that no advantage may be taken against me, nor i deprived of any benefit, which i might otherwise have received. secondly, that you will promise me a fair hearing, and liberty of making my defence. court. no advantage shall be taken against you; you shall have liberty; you shall be heard. pen. then i plead not guilty in manner and form. clerk. what sayest thou, william mead, art thou guilty in manner and form, as thou standest indicted, or not guilty? mead. i shall desire the same liberty as is promised william penn. court. you shall have it. mead. then i plead not guilty in manner and form. the court adjourn'd until the afternoon. * * * * * cryer. o yes, _&c_. cler. bring _william penn_ and _william mead_ to the bar. observ. the said prisoners were brought, but were set aside, and other business prosecuted. where we cannot choose but observe, that it was the constant and unkind practices of the court to the prisoners, to make them wait upon the trials of felons and murderers, thereby designing, in all probability, both to affront and tire them. after five hours attendance, the court broke up and adjourned to the third instant. * * * * * the third of _september_ , the court sate. cryer. o yes, _&c._ cler. bring _william penn_ and _william mead_ to the bar. mayor. sirrah, who bid you put off their hats? put on their hats again. obser. whereupon one of the officers putting the prisoners hats upon their heads (pursuant to the order of the court) brought them to the bar. record. do you know where you are? pen. yes. record. do not you know it is the king's court? pen. i know it to be a court, and i suppose it to be the king's court. record. do you not know there is respect due to the court? pen. yes. record. why do you not pay it then? pen. i do so. record. why do you not pull off your hat then? pen. because i do not believe that to be any respect. record. well, the court sets forty marks a piece upon your heads, as a fine for your contempt of the court. pen. i desire it might be observed, that we came into the court with our hats off (that is, taken off) and if they have been put on since, it was by order from the bench; and therefore not we, but the bench should be fined. mead. i have a question to ask the recorder. am i fined also? record. yes. mead. i desire the jury, and all people to take notice of this injustice of the recorder; who spake to me to pull off my hat? and yet hath he put a fine upon my head. o fear the lord, and dread his power, and yield to the guidance of his holy spirit, for he is not far from every one of you. the jury sworn again. obser. _j. robinson_, lieutenant of the _tower_, disingenuously objected against ---- _bushel_, as if he had not kiss'd the book, and therefore would have him sworn again; tho' indeed it was on purpose to have made use of his tenderness of conscience in avoiding reiterated oaths, to have put him by his being a jury-man, apprehending him to be a person not fit to answer their arbitrary ends. the clerk read the indictment, as aforesaid. clerk. cryer, call _james cook_ into the court, give him his oath. clerk. _james cook_, lay your hand upon the book. _the evidence you shall give to the court, betwixt our sovereign the king, and the prisoners at the bar, shall be the truth, and the whole truth, and nothing but the truth_. so help you god. cook. i was sent for, from the _exchange_, to go and disperse a meeting in _gracechurch-street_, where i saw _mr. penn_ speaking to the people, but i could not hear what he said, because of the noise; i endeavoured to make way to take him, but i could not get to him for the crowd of people; upon which _capt. mead_ came to me, about the kennel of the street, and desired me to let him go on; for when he had done, he would bring _mr. penn_ to me. court. what number do you think might be there? cook. about three or four hundred people. court. call _richard read_, give him his oath. read being sworn was ask'd, what do you know concerning the prisoners at the bar? read. my lord, i went to gracechurch-street, where i found a great crowd of people, and i heard _mr. penn_ preach to them; and i saw capt. mead speaking to lieutenant cook, but what he said, i could not tell. mead. what did william penn say? read. there was such a great noise, that i could not tell what he said. mead. jury, observe this evidence, he saith he heard him preach, and yet faith, he doth not know what he said. jury, take notice, he swears now a clean contrary thing to what he swore before the mayor when we were committed: for now he swears that he saw me in _gracechurch-street_, and yet swore before the mayor, when i was committed, that he did not see me there. i appeal to the mayor himself, if this be not true. but no answer was given. court. what number do you think might be there? read. about four or five hundred. penn. i desire to know of him what day it was? read. the th day of august. pen. did he speak to me, or let me know he was there; for i am very sure i never saw him. cler. cryer, call ---- ---- into the court. cler. give him his oath. ---- my lord, i saw a great number of people, and mr. _penn_ i suppose was speaking; i see him make a motion with his hands, and heard some noise, but could not understand what he said. but for capt. mead, i did not see him there. rec. what say you, mr. _mead_, were you there? mead. it is a maxim in your own law, _nemo tenetur accusare seipsum_, which if it be not true latin, i am sure it is true english, _that no man is bound to accuse himself_: and why dost thou offer to ensnare me with such a question? doth not this shew thy malice? is this like unto a judge, that ought to be counsel for the prisoner at the bar? rec. sir, hold your tongue, i did not go about to ensnare you. pen. i desire we may come more close to the point, and that silence be commanded in the court. cry. o yes, all manner of persons keep silence upon pain of imprisonment--silence court. pen. we confess our selves to be so far from recanting, or declining to vindicate the assembling of our selves to preach, pray, or worship the eternal, holy, just god, that we declare to all the world, that we do believe it to be our indispensable duty, to meet incessantly upon so good an account; nor shall all the powers upon earth be able to divert us from reverencing and adoring our god who made it. brown. you are not here for worshipping god, but for breaking the law; you do yourselves a great deal of wrong in going on in that discourse. pen. i affirm i have broken no law, nor am i guilty of the indictment that is laid to my charge; and to the end the bench, the jury, and my self, with these that hear us, may have a more direct understanding of this procedure, i desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment. rec. upon the common law. pen. where is that common law? rec. you must not think that i am able to run up so many years, and over so many adjudged cases, which we call common law, to answer your curiosity. pen. this answer i am sure is very short of my question, for if it be common, it should not be so hard to produce. rec. sir, will you plead to your indictment? pen. shall i plead to an indictment that hath no foundation in law? if it contain that law you say i have broken, why should you decline to produce that law, since it will be impossible for the jury to determine, or agree to bring in their verdict, who have not the law produced, by which they should measure the truth of this indictment, and the guilt, or contrary of my fact? rec. you are a sawcy fellow, speak to the indictment. [sidenote: obser. _at this time several upon the bench urged hard upon the prisoner to bear him down._] pen. i say, it is my place to speak to matter of law; i am arraign'd a prisoner; my liberty, which is next to life it self, is now concerned: you are many mouths and ears against me, and if i must not be allowed to make the best of my case, it is hard. i say again, unless you shew me, and the people, the law you ground your indictment upon, i shall take it for granted your proceedings are meerly arbitrary. rec. the question is, whether you are guilty of this indictment? pen. the question is not whether i am guilty of this indictment, but whether this indictment be legal. it is too general and imperfect an answer, to say it is the common law, unless we knew both where, and what it is: for where there is no law, there is no transgression; and that law which is not in being, is so far from being common, that it is no law at all. rec. you are an impertinent fellow, will you teach the court what law is? it's _lex non scripta_, that which many have studied thirty or forty years to know, and would you have me to tell you in a moment? pen. certainly, if the common law be so hard to be understood, it's far from being very common; but if the lord _cook_, in his _institutes_, be of any consideration, he tells us, that common law is common right, and that common right is the great charter-privileges: confirmed _hen_. . . _edw_. i. i. _edw_. . . _cook instit_. p. . rec. sir, you are a troublesome fellow, and it is not for the honour of the court to suffer you to go on. pen. i have asked but one question, and you have not answer'd me; tho' the rights and privileges of every _englishman_ be concerned in it. rec. if i should suffer you to ask questions till to morrow morning, you would be never the wiser. pen. that is according as the answers are. rec. sir, we must not stand to hear you talk all night. pen. i design no affront to the court, but to be heard in my just plea: and i must plainly tell you, that if you will deny me oyer of that law, which you suggest i have broken, you do at once deny me an acknowledged right, and evidence to the whole world your resolution to sacrifice the privileges of _englishmen_ to your sinister and arbitrary designs. rec. take him away. my lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do any thing to night. mayor. take him away, take him away, turn him into the bale-dock. pen. these are but so many vain exclamations; is this justice or true judgment? must i therefore be taken away because i plead for the fundamental laws of _england_? however, this i leave upon your consciences, who are of the jury (and my sole judges) that if these ancient fundamental laws, which relate to liberty and property, and (are not limited to particular persuasions in matters of religion) must not be indispensibly maintained and observed. who can say he hath right to the coat upon his back? certainly our liberties are openly to be invaded, our wives to be ravished, our children slaved, our families ruined, and our estates led away in triumph, by every sturdy beggar and malicious informer, as their trophies, but our (pretended) forfeits for conscience sake. the lord of heaven and earth will be judge between us in this matter. rec. be silent there. pen. i am not to be silent in a case wherein i am so much concerned, and not only my self, but many ten thousand families besides. obser. they having rudely haled him into the bale-dock, _william mead_ they left in court, who spake as followeth. mead. you men of the jury, here i do now stand, to answer to an indictment against me, which is a bundle of stuff, full of lyes and falshoods; for therein i am accused, that i met _vi & armis, illicite & tumultuose_: time was, when i had freedom to use a carnal weapon, and then i thought i feared no man; but now i fear the living god, and dare not make use thereof, nor hurt any man; nor do i know i demeaned my self as a tumultuous person: i say, i am a peaceable man, therefore it is a very proper question what _william penn_ demanded in this case, an oyer of the law, in which our indictment is grounded. rec. i have made answer to that already. mead. turning his face to the jury, saith, you men of the jury, who are my judges, if the recorder will not tell you what makes a riot, a rout, or an unlawful assembly, _cook_, he that once they called the lord _cook_, tells us what makes a riot, a rout, and an unlawful assembly--a riot is when three, or more, are met together to beat a man, or to enter forcibly into another man's land, to cut down his grass, his wood, or break down his pales. obser. here the recorder interrupted him, and said, i thank, you sir, that you will tell me what the law is, scornfully pulling off his hat. mead. thou mayst put on thy hat, i have never a free for thee now. brown. he talks at random, one while an independent, another while some other religion, and now a quaker, and next a papist. mead. _turpe est doctori cum culpa redarguit ad ipsum_. may. you deserve to have your tongue cut out. rec. if you discourse on this manner, i shall take occasion against you. mead. thou didst promise me, i should have fair liberty to be heard; why may i not have the privilege of an _englishman_? i am an _englishman_, and you might be ashamed of this dealing. rec. i look upon you to be an enemy to the laws of _england_, which ought to be observed and kept, nor are you worthy of such privileges, as others have. mead. the lord is judge between me and thee in this matter. obser. upon which they took him away into the bale-dock, and the recorder proceeded to give the jury their charge, as followeth. rec. you have heard what the indictment is. it is for preaching to the people, and drawing a tumultuous company after them, and mr. _penn_ was speaking; if they should not be disturbed, you see they will go on; there are three or four witnesses that have proved this, that he did preach there; that mr. _mead_ did allow of it; after this, you have heard by substantial witnesses what is said against them: now we are upon the matter of fact, which you are to keep to, and observe, as what hath been fully sworn, at your peril. obser. the prisoners were put out of the court into the bale-dock, and the charge given to the jury in their absence, at which _w. p._ with a very raised voice, it being a considerable distance from the bench, spake. pen. i appeal to the jury, who are my judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners; i say, it is directly opposite to, and destructive of, the undoubted right of every _english_ prisoner, as _cook_ in the _instit_. . on the chap. of _magna charta_, speaks. obser. the recorder being thus unexpectedly lash'd for his extrajudicial procedure, said, with an inraged smile. rec. why, ye are present, you do hear, do you not? pen. no thanks to the court, that commanded me into the bale-dock; and you of the jury take notice, that i have not been heard, neither can you legally depart the court, before i have been fully heard, having at least ten or twelve material points to offer, in order to invalid their indictment. rec. pull that fellow down, pull him down. mead. are these according to the rights and privileges of _englishmen_, that we should not be heard, but turned into the bale-dock, for making our defence, and the jury to have their charge given them in our absence; i say these are barbarous and unjust proceedings. rec. take them away into the hole: to hear them talk all night, as they would, that i think doth not become the honour of the court, and i think you (i. e. the jury) your selves would be tired out, and not have patience to hear them. obser. the jury were commanded up to agree upon their verdict, the prisoners remaining in the stinking hole. after an hour and half's time eight came down agreed, but four remained above; the court sent an officer for them, and they accordingly came down. the bench used many unworthy threats to the four that dissented; and the recorder, addressing himself to _bushel_, said, _sir, you are the cause of this disturbance, and manifestly shew your self an abettor of faction; i shall set a mark upon you, sir_. j. robinson. mr. _bushel_, i have known you near this fourteen years; you have thrust your self upon this jury, because you think there is some service for you. i tell you, you deserve to be indicted more than any man that hath been brought to the bar this day. bushel. no, sir _john_, there were threescore before me, and i would willingly have got off, but could not. bloodw. i said, when i saw mr. _bushel_, what i see is come to pass, for i knew he would never yield. mr. _bushel_, we know what you are. may. sirrah, you are an impudent fellow, i will put a mark upon you. obser. they used much menacing language, and behaved themselves very imperiously to the jury, as persons not more void of justice than sober education: after this barbarous usage, they sent them to consider of bringing in their verdict, and after some considerable time they returned to the court. silence was call'd for, and the jury call'd by their names. cler. are you agreed upon your verdict? jury. yes. cler. who shall speak for you? jury. our fore-man. cler. look upon the prisoners at the bar. how say you? is _william penn_ guilty of the matter whereof he stands indicted in manner and form, or not guilty? fore-m. guilty of speaking in gracechurch-street. court. is that all? fore-m. that is all i have in commission. rec. you had as good say nothing. may. was it not an unlawful assembly? you mean he was speaking to a tumult of people there? fore-m. my lord, this is all i had in commission. obser. here some of the jury seemed to buckle to the questions of the court; upon which, _bushel, hammond_, and some others, opposed themselves, and said, they allowed of no such word, as an unlawful assembly in their verdict; at which the recorder, mayor, _robinson_ and _bloodworth_ took great occasion to villifie them with most opprobrious language; and this verdict not serving their turns, the recorder express'd himself thus. reg. the law of _england_ will not allow you to part till you have given in your verdict. jury. we have given in our verdict, and we can give in no other. rec. gentlemen, you have not given in your verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business. jury. we desire we may have pen, ink and paper. obser. the court adjourn'd for half an hour; which being expired, the court returns, and the jury not long after. the prisoners were brought to the bar, and the jury's names called over. cler. are you agreed of your verdict? jur. yes. cler. who shall speak for you? jur. our fore-man. cler. what say you, look upon the prisoners: is _william penn_ guilty in manner and form, as he stands indicted, or not guilty? fore-m. here is our verdict, holding forth a piece of paper to the clerk of the peace, which follows; we _the jurors, hereafter named, do find_ william penn _to be guilty of speaking or preaching to an assembly, met together in_ gracechurch-street, _the th of august last, _. _and that_ william mead is _not guilty of the said indictment_. fore-m. _thomas veer, edward bushel, john hammond, henry henley, henry michel, john brightman, charles milson, gregory walklet, john baily, william lever, james damask, wil. plumsted._ obser. this both mayor and recorder resented as so high a rate, that they exceeded the bounds of all reason and civility. may. what will you be led by such a silly fellow as _bushel_? an impudent canting fellow? i warrant you, you shall come no more upon juries in haste: you are a fore-man indeed, addressing himself to the fore-man, i thought you had understood your place better. rec. gentlemen, you shall not be dismist till we have a verdict, that the court will accept; and you shall be lock'd up, without meat, drink, fire, and tobacco; you shall not think thus to abuse the court; we will have a verdict, by the help of god, or you shall starve for it. pen. my jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled; the bench ought to wait upon them, but not forestall them. i do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my jury's verdict. rec. stop that prating fellow's mouth, or put him out of the court. may. you have heard that he preach'd, that he gathered a company of tumultuous people, and that they do not only disobey the martial power, but civil also. pen. it is a great mistake; we did not make the tumult, but they that interrupted us: the jury cannot be so ignorant, as to think, that we met there, with a design to disturb the civil peace, since ( st.) we were by force of arms kept out of our lawful house, and met as near it in the street, as their soldiers would give us leave; and ( dly.) because it was no new thing (nor with the circumstances expres'd in the indictment) but what was usual and customary with us; 'tis very well known that we are a peaceable people, and cannot offer violence to any man. obser. the court being ready to break up, and willing to huddle the prisoners to their goal, and the jury to their chamber, penn spoke as follows: pen. the agreement of twelve men is a verdict in law, and such a one being given by the jury, i require the clerk of the peace to record it, as he will answer it at his peril. and if the jury bring in another verdict contradictory to this, i affirm they are perjur'd men in law. and looking upon the jury, said, you are _englishmen_, mind your privilege, give not away your right. bush. &c. nor will we ever do it. obser. one of the jury-men pleaded indisposition of body, and therefore desired to be dismist. may. you are as strong as any of them; starve with them; and hold your principles. rec. gentlemen, you must be contented with your hard fate, let your patience overcome it; for the court is resolved to have a verdict, and that before you can be dismist. jury. we are agreed, we are agreed, we are agreed. obser. the court swore several persons, to keep the jury all night without meat, drink, fire, or any other accommodation; they had not so much as a chamberpot, tho' desired. cry. o yes, _&c._ obser. the court adjourns till seven of the clock next morning (being the th instant, vulgarly call'd sunday) at which time the prisoners were brought to the bar: the court sat, and the jury called to bring in their verdict. cry. o yes, _&c._ ---- silence in the court, upon pain of imprisonment. the jury's names called over. cler. are you agreed upon your verdict? jur. yes. cler. who shall speak for you? jur. our fore-man. cler. what say you? look upon the prisoners at the bar. is william penn guilty of the matter whereof he stands indicted, in manner and form as aforesaid, or not guilty? fore-m. _william penn_ is guilty of speaking in _gracechurch-street_. may. to an unlawful assembly? bush. no, my lord, we give no other verdict than what we gave last night; we have no other verdict to give. may. you are a factious fellow, i'll take a course with you. blood. i knew mr. _bushel_ would not yield. bush. sir _thomas_ i have done according to my conscience. may. that conscience of yours would cut my throat. bush. no, my lord, it never shall. may. but i will cut yours so soon as i can. reg. he has inspired the jury; he has the spirit of divination, methinks i feel him. i will have a positive verdict, or you shall starve for it. pen. i desire to ask the recorder one question, do you allow of the verdict given of _william mead_? rec. it cannot be a verdict, because you were indicted for a conspiracy, and one being found not guilty, and not the other, it could not be a verdict. pen. if not guilty be not a verdict, then you make of the jury and _magna charta_ but a meer nose of wax. mead. how! is not guilty no verdict? rec. no, 'tis no verdict. pen. i affirm, that the consent of a jury is a verdict in law; and if _william mead_ be not guilty, it consequently follows, that i am clear, since you have indicted us of a conspiracy, and i could not possibly conspire alone. obser. there were many passages, that could not be taken, which past between the jury and the court. the jury went up again, having received a fresh charge from the bench, if possible to extort an unjust verdict. cry. o yes, _&c_. silence in the court. cour. call over the jury. which was done. cler. what say you? is _william penn_ guilty of the matter whereof he stands indicted, in manner and form aforesaid, or not guilty? fore-man. guilty of speaking in _gracechurch-street._ rec. what is this to the purpose? i say, i will have a verdict. and speaking to _edw. bushel_, said, you are a factious fellow; i will set a mark upon you; and whilst i have anything to do in the city, i will have an eye upon you. may. have you no more wit than to be led by such a pitiful fellow? i will cut his nose. pen. it is intolerable that my jury should be thus menaced: is this according to the fundamental laws? are not they my proper judges by the great charter of _england_? what hope is there of ever having justice done, when juries are threatened, and their verdicts rejected? i am concerned to speak and grieved to see such arbitrary proceedings. did not the lieutenant of the tower render one of them worse than a felon? and do you not plainly seem to condemn such for factious fellows, who answer not your ends? unhappy are those juries, who are threatened to be fined, and starved, and ruined, if they give not in verdicts contrary to their consciences. rec. my lord, you must take a course with that same fellow. may. stop his mouth; jaylor, bring fetters, and stake him to the ground. pen. do your pleasure, i matter not your fetters. rec. till now i never understood the reason of the policy and prudence of the _spaniards_, in suffering the inquisition among them: and certainly it will never be well with us, till something like unto the _spanish_ inquisition be in _england_. obser. the jury being required to go together to find another verdict, and steadfastly refusing it (saying they could give no other verdict than what was already given) the recorder in great passion was running off the bench, with these words in his mouth, _i protest i will sit here no longer to hear these things_; at which the mayor calling, _stay, stay_, he returned, and directed himself unto the jury, and spoke as followeth: rec. gentlemen, we shall not be at this trade always with you; you will find the next sessions of parliament there will be a law made, that those that will not conform shall not have the protection of the law. mr. _lee_, draw up another verdict, that they may bring it in special. lee. i cannot tell how to do it. jur. we ought not to be return'd, having all agreed, and set our hands to the verdict. rec. your verdict is nothing, you play upon the court; i say you shall go together, and bring in another verdict, or you shall starve; and i will have you charted about the city, as in edward the third's time. fore-m. we have given in our verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives. may. take them up. offic. my lord, they will not go up. obser. the mayor spoke to the sheriff, and he came off of his seat, and said. sher. come, gentlemen, you must go up; you see i am commanded to make you go. obser. upon which the jury went up; and several sworn to keep them without any accommodation, as aforesaid, till they brought in their verdict. cry. o yes, _&c_. the court adjourns till to morrow morning, at seven of the clock. obser. the prisoners were remanded to newgate, where they remained till next morning, and then were brought unto the court, which being sat, they proceeded as followeth. cry. o yes, _&c_. silence in the court, upon pain of imprisonment. cler. set _william penn_ and _william mead_ to the bar. gentlemen of the jury, answer to your names: _tho. veer, edw. bushel, john hammond, henry henly, henry michell, john brightman, charles milson, gregory walklet, john baily, william plumstead._ are you all agreed to your verdict? jur. yes. cler. who shall speak for you? jur. our fore-man. cler. look upon the prisoners. what say you? is _william penn_ guilty of the matter whereof he stands indicted, in manner and form, &c., or not guilty? fore-man. here is our verdict in writing, and our hands subscribed. obser. the clerk took the paper, but was stopt by the recorder from reading of it; and he commanded to ask for a positive verdict. fore-man. that is our verdict; we have subscribed to it. cler. how say you? is william penn guilty, &c., or not guilty? fore-man. not guilty. cler. how say you? is william mead guilty, &c., or not guilty? fore-man. not guilty. cler. then hearken to your verdict; you say that william penn is not guilty in manner and form as he stands indicted; you say that _william mead_ is not guilty in manner and form as he stands indicted, and so you say all? jur. yes, we do so. obser. the bench being unsatisfied with the verdict, commanded that every person should distinctly answer to their names, and give in their verdict, which they unanimously did, in saying, not guilty, to the great satisfaction of the assembly. rec. i am sorry, gentlemen, you have followed your own judgments and opinions, rather than the good and wholsome advice, which was given you; god keep my life out of your hands; but for this the court fines you forty mark a man; and imprisonment till paid. at which _penn_ stept up towards the bench, and said: pen. i demand my liberty, being freed by the jury. may. no, you are in for your fines. pen. fines, for what? may. for contempt of the court. pen. i ask, if it be according to the fundamental laws of _england_, that any english-man should be fined or amerced, but by the judgment of his peers or jury; since it expressly contradicts the fourteenth and twenty-ninth chap. of the great charter of _england_, which say, no free-man ought to be amerced, but by the oath of good and lawful men of the vicinage. rec. _take him away, take him away, take him out of the court._ pen. i can never urge the fundamental laws of _england_, but you cry, take him away, take him away. but it is no wonder, _since the spanish inquisition hath so great a place in the recorder's heart_. god almighty, who is just, will judge you all for these things. obser. they haled the prisoners into the bale-dock, and from thence sent them to newgate, for non-payment of their fines; and so were their jury. l'envoie so ended the "tryal." the contumacious jurors did not long remain in duress. the pertinacious bushel, being a man of substance, took steps to legally rescue himself and fellows, and soon succeeded. the affair had an important after echo at the trial in new york, of john peter zenger, the palatine printer, in , for libelling governor william cosby, by telling the truth about his infringement of popular liberty, when the attempted forcing of the penn jury was powerfully employed by andrew hamilton, attorney for the defense, to curb the efforts of mr. justice de lancey to coerce the twelve. in his remarkable address--an address that solidified the foundation for liberty of the press and free speech on this continent and was a worthy preface to the declaration of independence drawn some forty years later--hamilton said, concerning this "tryal": "mr. _penn_ and _mead_ being quakers, and having met in a peaceable manner, after being shut out of their meeting house, preached in grace church street, in london, to the people of their own perswasion, and for this they were indicted; and it was said, _that they with other persons, to the number of . unlawfully and tumultuously assembled, to the disturbance of the peace, &c_. to which they pleaded _not guilty_. and the petit jury being sworn to try the issue between the king and the prisoners, that is, whether they were guilty, according to the form of the indictment? here there was no dispute but they were assembled together, to the number mentioned in the indictment; but _whether that meeting together was riotously, tumultuously, and to the disturbance of the peace_? was the question. and the court told the jury it was, and ordered the jury to find it so; _for_ (said the court) _the meeting was the matter of fact, and that is confessed, and we tell you it is unlawful, for it is against the statute; and the meeting being unlawful, it follows of course that it was tumultuous, and to the disturbance of the peace_. but the jury did not think fit to take the court's word for it, for they could neither find _riot, tumult_, or any thing tending to the _breach of the peace_ committed at that meeting; and they acquitted mr. _penn_ and _mead_. in doing of which they took upon them to judge both the _law_ and the _fact_, at which the court (being themselves true cortiers) were so much offended, that they fined the jury marks a piece, and committed them till paid. but mr. _bushel_, who valued the right of a juryman and the liberty of his country more than his own, refused to pay the fine, and was resolved (tho' at a great expence and trouble too) to bring, and did bring, his _habeas corpus_, to be relieved from his fine and imprisonment, and he was released accordingly; and this being the judgment in his case, it is established for law, _that the judges, how great soever they be, have no right to fine, imprison, or punish a jury, for not finding a verdict according to the direction of the court_. and this i hope is sufficient to prove, that jurymen are to see with their own eyes, to hear with their own ears, and to make use of their own consciences and the understandings, in judging of the lives, liberties or estates of their fellow subjects." full text of the riot act (c. - ) typed in this february , by jonathan walther. the source was cap v, volume xiii, pages - of the "statutes at large" series, printed in the year . also indexed as "anno primo georgeii i. stat. . c. ." many sources on the internet claim the riot act was passed in ; according to statutes at large it was passed in . the confusion may be caused by the fact that the act took _effect_ in august of . this is, of course, the famous riot act that gave rise to the expression _"read them the riot act!_". cap. v. an act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishing the rioters. i. whereas of late many rebellious riots and tumults have been in divers parts of this kingdom, to the disturbance of the publick peace, and the endangering of his majesty's person and government, and the same are yet continued and fomented by persons disaffected to his majesty, presuming so to do, for that the punishments provided by the laws now in being are not adequate to such heinous offences; and by such rioters his majesty and his administration have been most maliciously and falsly traduced, with an intent to raise divisions, and to alienate the affections of the people from his majesty therefore for the preventing and suppressing of such riots and tumults, and for the more speedy and effectual punishing the offenders therein; be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal and of the commons, in this present parliament assembled, and by the authority of the same, that if any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the publick peace, at any time after the last day of _july_ in the year of our lord one thousand seven hundred and fifteen, and being required or commanded by any one or more justice or justices of the peace, or by the sheriff of the county, or his under-sheriff, or by the mayor, bailiff or bailiffs, or other head-officer, or justice of the peace of any city or town corporate, where such assembly shall be, by proclamation to be made in the king's name, in the form herin after directed, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more (notwithstanding such proclamation made) unlawfully, riotously, and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, that then such continuing together to the number of twelve or more, after such command or request made by proclamation, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in a case of felony without benefit of clergy. ii. and be it further enacted by the authority aforesaid, that the order and form of the proclamation that shall be made by the authority of this act, shall be as hereafter followeth (that is to say) the justice of the peace, or other person authorized by this act to make the said proclamation shall, among the said rioters, or as near to them as he can safely come, with a loud voice command, or cause to be commanded silence to be, while proclamation is making, and after that, shall openly and with loud voice make or cause to be made proclamation in these words, or like in effect: our sovereign lord the king chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of king george, for preventing tumults and riotous assemblies. god save the king. and every such justice and justices of the peace, sheriff, under-sheriff, mayor, bailiff, and other head-officer aforesaid, within the limits of their respective jurisdictions, are hereby authorized, impowered and required, on notice or knowledge of any such unlawful, riotous and tumultuous assembly, to resort to the place where such unlawful, riotous, and tumultuous assemblies shall be, of persons to the number of twelve or more, and there to make or cause to be made proclamation in manner aforesaid. iii. and be it further enacted by the authority aforesaid, that if such persons so unlawfully, riotously, and tumultuously assembled, or twelve or more of them, after proclamation made in manner aforesaid, shall continue together and not disperse themselves within one hour, that then it shall and may be lawful to and for every justice of the peace, sheriff, or under-sheriff of the county where such assembly shall be, and also to and for every high or petty constable, and other peace-officer within such county, and also to and for every mayor, justice of the peace, sheriff, bailiff, and other head-officer, high or petty constable, and other peace-officer of any city or town corporate where such assembly shall be, and to and for such other person and persons as shall be commanded to be assisting unto any such justice of the peace, sheriff or under-sheriff, mayor, bailiff, or other head-officer aforesaid (who are hereby authorized and impowered to command all his majesty's subjects of age and ability to be assisting to them therein) to seize and apprehend, and they are hereby required to seize and apprehend such persons so unlawfully, riotously and tumultuously continuing together after proclamation made, as aforesaid, and forthwith to carry the persons so apprehended before one or more of his majesty's justices of the peace of the county or place where such persons shall be so apprehended, in order to their being proceeded against for such their offences according to law; and that if the persons so unlawfully, riotously and tumultuously assembled, or any of them, shall happen to be killed, maimed or hurt, in the dispersing, seizing or apprehending, or endeavouring to disperse, seize or apprehend them, that then every such justice of the peace, sheriff, under-sheriff, mayor, bailiff, head-officer, high or petty constable, or other peace-officer, and all and singular persons, being aiding and assisting to them, or any of them, shall be free, discharged and indemnified, as well against the king's majesty, his heirs and successors, as against all and every other person and persons, of, for, or concerning the killing, maiming, or hurting of any such person or persons so unlawfully, riotously and tumultuously assembled, that shall happen to be so killed, maimed or hurt, as aforesaid. iv. and be it further enacted by the authority aforesaid, that if any persons unlawfully, riotously and tumultuously assembled together, to the disturbance of the publick peace, shall unlawfully, and with force demolish or pull down, or begin to demolish or pull down any church or chapel, or any building for religious worship certified and registred according to the statute made in the first year of the reign of the late king _william_ and queen _mary_, intituled, _an act for exempting their majesty's protestant subjects dissenting from the church of_ england _from the penalties of certain laws_, or any dwelling-house, barn, stable, or other out-house, that then every such demolishing, or pulling down, or beginning to demolish, or pull down, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy. v. provided always, and be it further enacted by the authority aforesaid, that if any person or persons do, or shall, with force and arms, wilfully and knowingly oppose, obstruct, or in any manner wilfully and knowingly lett, hinder, or hurt any person or persons that shall begin to proclaim, or go to proclaim according to the proclamation hereby directed to be made, whereby such proclamation shall not be made, that then every such apposing, obstructing, letting, hindering or hurting such person or persons, so beginning or going to make such proclamation, as aforesaid, shall be adjudged felony without benefit of clergy, and the offenders therein shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy; and that also every such person or persons so being unlawfully, riotously and tumultuously assembled, to the number of twelve, as aforesaid, or more, to whom proclamation should or ought to have been made if the same had not been hindred, as aforesaid, shall likewise, in case they or any of them, to the number of twelve or more, shall continue together, and not disperse themselves within one hour after such lett or hindrance so made, having knowledge of such lett or hindrance so made, shall be adjudged felons, and shall suffer death as in case of felony, without benefit of clergy. vi. and be it further enacted by the authority aforesaid, that if after the said last day of _july_ one thousand seven hundred and fifteen, any such church or chapel, or any such building for religious worship, or any such dwelling-house, barn, stable, or other out-house, shall be demolished or pulled down wholly, or in part, by any persons so unlawfully, riotously and tumultuously assembled, that then, in case such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house, shall be out of any city or town, that is either a county of itself, or is not within any hundred, that then the inhabitants of the hundred in which such damage shall be done, shall be liable to yield damages to the person or persons injured and damnified by such demolishing or pulling down wholly or in part; and such damages shall and may be recovered by action to be brought in any of his majesty's courts of record at _westminster_, (wherein no effoin, protection or wager of law, or any imparlance shall be allowed) by the person or persons damnified thereby, against any two or more of the inhabitants of such hundred, such action for damages to any church or chapel to be brought in the name of the rector, vicar or curate of such church or chapel that shall be so damnified, in trust for applying the damages to be recovered in rebuilding or repairing such church or chapel; and that judgment being given for the plaintiff or plaintiffs in such action, the damages so to be recovered shall, at the request of such plaintiff or plaintiffs, his or their executors or administrators, be raised and levied on the inhabitants of such hundred, and paid to such plaintiff or plaintiffs, in such manner and form, and by such ways and means, as are provided by the statute made in the seven and twentieth year of the reign of queen _elizabeth_, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied: and in case any such church, chapel, building for religious worship, dwelling-house, barn, stable, or out-house so damnified, shall be in any city or town that is either a county of itself, or is not within any hundred, that then such damages shall and may be recovered by action to be brought in manner aforesaid (where no effoin, protection or wager of law, or any imparlance shall be allowed) against two or more inhabitants of such city or town; and judgment being given for the plaintiff or plaintiffs in such action, the damages so to be recovered shall, at the request of such plaintiff or plaintiffs, his or their executors or administrators, made to the justices of the peace of such city or town at any quarter-sessions to be holden for the said city or town, be raised and levied on the inhabitants of such city or town, and paid to such plaintiff or plaintiffs, in such manner and form, and by such ways and means, as are provided by the said statute made in the seven and twentieth year of the reign of queen _elizabeth_, for reimbursing the person or persons on whom any money recovered against any hundred by any party robbed, shall be levied. vii. and be it further enacted by the authority aforesaid, that this act shall be openly read at every quarter-session, and at every leet or law-day. viii. provided always, that no person or persons shall be prosecuted by virtue of this act, for any offence or offences committed contrary to the same, unless such prosecution be commenced within twelve months after the offence committed. ix. and be it further enacted by the authority aforesaid, that the sheriffs and their deputies, stewards and their deputies, bailies of regalities and their deputies, magistrates of royal boroughs, and all other inferior judges and magistrates, and also all high and petty constables, or other peace-officers of any county, stewartry, city or town, within that part of _great britain_ called _scotland_, shall have the same powers and authority for putting this present act in execution within _scotland_, as the justices of the peace and other magistrates aforesaid, respectively have by virtue of this act, within and for the other parts of this kingdom; and that all and every person and persons who shall at any time be convicted of any the offences aforementioned, within that part of _great britain_ called _scotland_, shall for every such offence incur and suffer the pain of death, and confiscation of moveables: and also that all prosecutions for repairing the damages of any church or chapel, or any building for religious worship, or any dwelling-house, barn, stable or out-house, which shall be demolished or pulled down in whole or in part, within _scotland_, by any persons unlawfully, riotously or tumultuously assembled, shall and may be recovered by summar action, at the instance of the party aggrieved, his or her heirs or executors, against the county, stewartry, city or borough respectively, where such disorders shall happen, the magistrates being summoned in the ordinary form, and the several counties and stewartries called by edictal citation at the market-cross of the head borough of such county or stewartry respectively, and that in general, without mentioning their names and designations. x. provided, and it is hereby declared, that this act shall extend to all places for religious worship, in that part of _great britain_ called _scotland_, which are tolerated by law, and where his majesty king _george_, the prince and princess of _wales_, and their issue, are prayed for in express words. produced from images generously made available by the internet archive.) the law and the poor by his honour judge edward abbott parry author of "dorothy osborne's letters," "judgments in vacation," "what the judge saw," "the scarlet herring," "katawampus," etc. "laws grind the poor and rich men rule the law." oliver goldsmith: "the traveller." london smith, elder & co., , waterloo place to the man in the street this volume is dedicated, in the pious hope that he will take up his job and do it. contents chap. page introduction ix references xv i. past and present ii. the ancients and the debtor iii. of imprisonment for debt in england iv. how the machine works v. workmen's compensation vi. bankruptcy vii. divorce viii. flat-traps and their victims ix. poverty and procedure x. crime and punishment xi. the police court xii. landlord and tenant xiii. the two public houses: i. the alehouse xiv. the two public houses: ii. the workhouse xv. remedies of to-day xvi. remedies of to-morrow index introduction "but, say what you like, our queen reigns over the greatest nation that ever existed." "which nation?" asked the younger stranger, "for she reigns over two." the stranger paused; egremont was silent, but looked inquiringly. "yes," resumed the stranger after a moment's interval. "two nations; between whom there is no intercourse and no sympathy; who are as ignorant of each other's habits, thoughts, and feelings, as if they were dwellers in different zones, or inhabitants of different planets; who are formed by a different breeding, are fed by a different food, are ordered by different manners, and are not governed by the same laws." "you speak of----," said egremont, hesitatingly. "the rich and the poor." benjamin disraeli: "sybil, or the two nations." the rich have many law books written to protect their privileges, but the poor, who are the greater nation, have but few. not that i should like to call this a law book, for two reasons: firstly, it would not be true; secondly, if it were true, i should not mention it, as i want people to read it. you cannot read law books, you only consult them. a law book seeks to set out the law, the whole law, and nothing but the law on the subject of which it treats. there are many books on poor law, there are hundreds of volumes about the poor, and many more about the law, but the law and the poor is a virgin subject. it is a wonder that it should be so because it is far more practical and interesting than either of its component parts. it is as if poetry had dealt with beans or with bacon and no poet had hymned the more beautiful associations of beans and bacon. in the same way the law and the poor is a subject worthy of treatment in drama or poetry, but that that may be successfully done someone must do the rough spade work of digging the material out of the dirt heaps in which it lies, and presenting it in a more or less palatable form. when this has been done the poet or the politician can come along and throw the crude metal into the metres of sonnets or statutes or any form of glorious letters they please. from the very earliest i have taken a keen interest in this subject. i remember well when i was a schoolboy the profound impression made upon me by samuel plimsoll's agitation to rescue merchant seamen from the horrible abuses practised by a certain class of shipowner. my father, serjeant parry, was engaged in litigation for plimsoll, and i heard many things at first hand of that great reformer's hopes and disappointments. there were a class of traders known as "ship knackers," who bought up old unseaworthy vessels and sent them to sea overloaded and over-insured. plimsoll, for years, devoted himself to prevent this wickedness. there was the usual parliamentary indifference, the customary palavering and pow-wowing in committees until, after six or seven years of constant fighting, the public conscience was awakened, and, in , disraeli produced a merchant shipping bill. but then, as now, there was no parliamentary time for legislation dealing with the poor, and the bill was one of the innocents to be sacrificed at the annual summer massacre. this would have been the end of all hope of reform had not samuel plimsoll, in a fine frenzy of rage and disgust, openly charged the government with being parties to the system which sent brave men to death in the winter seas and left widows and orphans helpless at home, "in order that a few speculative scoundrels, in whose heart there is neither the love of god nor the fear of god, may make unhallowed gains." this was unparliamentary enough, but it was allowed to pass. it was when he began to give the names of foundered ships and their parliamentary owners and, in his own words, "to unmask the villains" who sent poor men to death and destruction, that he was promptly called to order, and, refusing to withdraw, left the house. the result of his outburst was entirely satisfactory. the government were obliged to bring in another bill and to pass it without delay. many years later the unauthorised radical programme of mr. joseph chamberlain aroused my youthful enthusiasm, and i spent much of my then ample leisure as a missionary in that cause. we soon lost our great leader, who went away to champion what he considered greater causes, but he was one of the first english statesmen in high places to make his main programme a reform of the law in the interests of the poor, and he left behind him mournful but earnest disciples who have not yet found such another leader. the workmen's compensation act will always, i think, be regarded as one of his greatest achievements, and mauled and mangled as it has been in the law courts it remains the most substantial benefit that the poor have received from the legislature in my lifetime. twenty years' service in urban county courts has naturally given me some insight into the way in which the law treats the poor and the real wants of the latter. i agree that such a book as this would be better written by one who had actual experience of the life of the poor, rather than the official hearsay experience which is all that i can claim to have had. i think the great want of labour to-day is an attorney-general, a man who having graduated in the workshop comes to the study and practice of the law with a working man's knowledge and ideals, and gaining a lawyer's power of expressing his wants in legal accents, raises his voice to demand those new laws that the poor are so patiently awaiting. if there be such a one on his way and this volume is of any small service to him, it will have more than fulfilled its purpose. originating in a series of essays published in the _sunday chronicle_, it has grown into a more ambitious project, and is now, i trust, a fairly complete text-book of the law as it ought not to be in relation to the poor. in my endeavour to please the taste of the friend to whom i have dedicated this book i have dispensed with all footnotes, but i have added an appendix of references in case there may be any who might wish to test the accuracy of statements in its pages. "thus," as my lord coke says, "requesting you to weigh these my labours in the even balance of your indifferent judgment i submit them to your censure and take my leave." edward a. parry. sevenoaks, . references _the number of the page and the number of the line counting from the top are given in the left-hand column._ introduction page line xi hansard. . vol. , col. . xiii coke's "institutes." i. "to the reader." chapter i job xiii. . "the compleat constable. directing all constables, headboroughs, tithing men, churchwardens, overseers of the poor, surveyors of the highways and scavengers in the duty of their several offices, according to the power allowed them by the laws and the statutes." rd edition. london. printed for tho. bever at the hand and star, near temple bar. . "shakespeare's europe. unpublished chapters of fynes moryson's itinerary, being a survey of the condition of europe at the end of the sixteenth century. ." at p. . smollett. "roderick random." chap. xxiii. the trial of richard weston at the guildhall of london for the murder of sir thomas overbury, th october, james st, a.d. . howell's "state trials," ii., . boswell's "life of johnson." edited by birkbeck hill. ii. . boswell's "life of johnson." iv. . _manchester guardian_, saturday, january th, . chapter ii kings iv. -- . grote's "history of greece." part ii., c. . hunter's "roman law." rd edition. p. . fynes moryson. "shakespeare's europe." chapter iii imprisonment for debt.--the main authorities for the history of imprisonment for debt are the reports of the three commissions. . report of commission on the present state of the laws respecting bankrupts and insolvent debtors. . report from the select committee on the debtors act with minutes of evidence. . report on select committee on debtors (imprisonment) with minutes of evidence. the hansard reports of the debates over the bills of , , and , contain many clear statements of the argument for, and against, abolition. "the law of executions, to which are added the history and practice of the court of king's bench." by the late lord chief baron gilbert. smollett. "roderick random." chap. lxi. for the story of the clerkenwell spinster and the debtor, see sir walter besant's "london in the eighteenth century," chap. v., "debtors' prisons," at p. . this volume contains excellent accounts of the law and the poor in the eighteenth century. december th, . lord cottenham introduced bill to abolish arrest on mesne process. & vict. c. . thackeray. "the virginians." vol. i. chap. xlv. duke de cadaval's case. hansard. . vol. , p. . j. b. atlay. "the victorian chancellors." i., . lord brougham's speech. hansard. . vol. , p. . lord brougham's speech. hansard. . vol. , p. . see judgment of sir george jessel, m.r., in _marris_ v. _ingram_, ( ) law reports, chancery division, p. . sir robert collier's speech. hansard. . vol. , p. . chapter iv "debtors' imprisonment report, ." appendix , at p. . basil montagu. "opinions of paley burke and dr. johnson on imprisonment for debt." jeremy taylor. "a prayer to be said by all debtors, and all persons obliged whether by crime or contract." "holy living and dying." chapter v there are many books on the workmen's compensation act. that by mr. adshead elliott is as clear and comprehensive as any. the hansard debates on the bills of and are full of interest. john chipman gray. "nature and services of law." sections - . _the attorney-general_ v. _the edison telephone co. of london, ltd._, ( ) law reports, queen's bench division, p. . gilbert e. roe. "our judicial oligarchy." mr. asquith's speech on employers' liability bill. hansard. . vol. , p. . see the judgments of lord halsbury and lord davey, in _lysons_ v. _andrew knowles_, ( ) law reports, appeal cases, p. . chapter vi jeremiah xxii. . see "the living wage," by philip snowden, m.p., for a sensible, practical statement of the socialist ideal. psalms xxxv. . carlyle. "chartism." chap. i. hansard. . vol. , p. . chapter vii the chief authority for this chapter is "the report of the royal commission on divorce and matrimonial causes," published in , cited below as d. c. notes on the reformatio legum ecclesiasticarum. d. c., iii., pp. - . appendix ii., p. . j. b. atlay. "the victorian chancellors." ii., . jane and fred's case. d. c., ii., . george and mary's case. d. c., ii., . note by mrs. tennant. d. c. report, . mr. justice bargrave deane's evidence. d. c., i., . alfred and anna's case. d. c., ii., . john and catherine's case. d. c., ii., . norah's case. d. c., ii., . divorce in france. m. mesnil's evidence. d. c., iii., . mr. dendy's evidence. d. c., i., . german divorce. dr. carl neuhaus's evidence. d. c., iii., . scot's divorce. mr. lamier's evidence. d. c., i., . selden's "table talk." lxxxiv. d. c. report, part ix., par. . chapter viii carlyle. "latter day pamphlets." "parliament." dickens. "oliver twist." chap. li. arthur hugh clough. "the latest decalogue." chapter ix george eliot. "the mill on the floss." book ii., chap. ii. _lysons_ v. _andrew knowles_, ( ) law reports, appeal cases, p. . tomkin's "law dictionary," _sub tit._, "barraster." see lord sumner's judgment in _dallimore_ v. _williams and jesson_, _times_ newspaper, saturday, march th, . swift. "gulliver's travels." "a voyage to the houyhnhnms." crabbe. "the borough." letter vi. as to french conciliation courts, see poincaré, "how france is governed," chap. x., "justice." piers plowman. "the vision of the field full of folk." chapter x sydney smith. "counsel for prisoners." _edinburgh review_, . bentham. "a treatise on judicial evidence." . book i., chap. ii., p. . thackeray. "the case of peytel." "paris sketch book." dickens. "why?" "miscellaneous papers." ii., . hansard. . vol. , p. . hansard. . vol. , p. . see division list on second reading. hansard. . vol. , p. . hansard. . vol. , p. . hansard. . vol. , p. . boswell's "life of johnson." birkbeck hill's edition. iii., . fuller's "church history." howell's "state trials." ii., . chapter xi "speech of viscount haldane to the american bar association at montreal on september st, ." published in "the conduct of life and other addresses, ," p. . sydney smith. "cruel treatment of untried prisoners." _edinburgh review_, . chapter xii as to housing, see "report of her majesty's commissioners for inquiring into the housing of the working classes, ," and "report of the joint select committee of the house of lords and the house of commons, ." _r._ v. _foxby_, modern reports, pp. , , , and . dickens. "bleak house." chap. xvi. charles kingsley. "alton locke." chap. ii. benjamin disraeli. "sybil." book ii., chap. iii. "history of housing reform." published by the national unionist association. . "the land. the report of the land enquiry committee." vol. ii., p. . carlyle. "chartism." chap. viii. "new eras." "the republic of plato." book iv. translated by davies and vaughan. chapter xiii mr. balfour's speech on licensing. hansard. . vol. , p. . licensing act, , § , now licensing act, , § . hansard. . vol. , p. . dickens. "our mutual friend." book i., chap. vi. "letters and memories of charles kingsley." i., . chapter xiv "report of the royal commission on the poor laws and relief of distress, ." coke's "institutes." iii., chap. , p. (note). horn's "mirror of justices." selden society. vol. , book iv., chap. xvi., "of the judgment of homicide." horn's "mirror of justices." book i., "of sins against the holy peace." "report of royal commission on the poor laws, ," p. . "poor law report, ," p. . chapter xv samuel xv. . walt whitman. "song of myself." "report of select committee of the house of lords on the debtors act." william johnson's evidence, p. . manitoba laws. chapter xvi marcus aurelius. "meditations." book iv., par. . rudyard kipling. "the five nations." "stellenbosh," p. . the law and the poor chapter i past and present in a word we may gather out of history a policy no less wise than eternal; by the comparison and application of other men's fore-passed miseries with our own like errors and ill-deservings. sir walter raleigh: "history of the world." oxford edition. vol. ii., preface v. and vi. i often feel that if that excellent patriarch job had been alive he would have sent me a postcard indited, "o that ye would altogether hold your peace and it should be your wisdom." i have an anonymous friend who sends me frank criticisms of that kind on postcards. the sentiments are the same as job's text, but the language is fruitier. nevertheless, i like to hear from him, for he is an attentive reader of all i write. but, honestly, although i was always sorry for job and glad when he came into his camels and donkeys in the last chapter, yet i never sympathised with his attitude of taking his troubles lying down. after all, if one has gained a little practical experience of the law and the poor by living and working with them for twenty years it seems a pity to take it with you across the ferry into the silence merely because you have a bashful and retiring disposition. it is right, of course, to give your views and services to select commissions and the like,--but that is no better than hiding a lump of gold in a hole in the ground. the wiser plan is to try and tell the law-makers of the future--the men in the street--what is wrong with the machine, so that when they take it over, as they must do some day, they will not scrap it in mere despair, but tune it up to a faster and nobler rhythm. job, great, good, patient soul that he was, had his sour moments--a medical friend of mine believes that he had a liver,--i am sorry not to take the patriarch's advice, but i do not see my way to hold my peace about the law and the poor, and that is why i propose to try and point out how and why the law as a system is hard on the poor, and wherein the governors and great ones of the earth may further temper the wind to the shorn lamb. i myself do not expect to enter into the promised land of legal reform, but i am as sure that the younger generation will see it, as i am sure that they will see the rising sun if they ever get up early enough. the man at the door of the booth who beats the drum and calls out to the young folk in the fair to walk up and see the show plays a helpful part, though the old gentleman knows that he is doomed to stand outside and never make one of the audience. moses was like that, but he did useful work in booming the promised land. an eminent socialist complained to me with tears in his eyes that nothing was being done for the poor. i do not agree. not enough, certainly, but something, and every day more and more. the world is a slow world, and nature, like all such artisans, does her building and painting and decorating with exasperating deliberation. geology is slower than the south eastern railway. but no doubt providence intended each of them to go at the pace they do for our good. and it is impious to grumble. nevertheless, if i were a sculptor called upon to design a symbolic statue of nature, i should model a plumber. slow, hesitating, occasionally mixing the taps and flooding the world's bathroom or exploding the gas mains in the cellars of the earth, but in the end doing the job somehow--such is the way of nature. you cannot cinematograph the growth of the world or its rocks and trees and human beings--to study nature you want long life and a microscope. and the only way to make out whether the tide is coming in or out is to place a mark upon the shore and wait and see. it is the same if you are travelling an unknown road--you measure your progress by the milestones. in this matter of the law and the poor, if we want to know where we are to-day and where we are likely to be three hundred years hence, the only sane way to make the experiment is to go back to what we know of things in the past, and, by measuring the progress made in bygone centuries, take heart for the morrow. that is what sir walter raleigh meant when he told us how to gather a sane policy for to-day out of the blunders and troubles of yesterday. as i grope my way back along the main road of the history of the law into the dark ages i seem to find the milestones of reform set at longer and longer intervals. this puts me in good heart for the happy youths whose lot it will be to set their faces towards the morning breezes of the future. their milestones will come at shorter intervals every day, until the burden of the law drops from the shoulders of the poor at the wicket gate. there is no greater folly than to sing the praises of the good old days. anyhow, the law had no good old days for the poor. stroll down to the dockyards with samuel pepys; take a walk down fleet street with dr. johnson; or, even as late as the days of charles dickens, go round the parish with mr. bumble. you will learn in this way better than in any other how the law has treated the poor in the good old days. i have a quaint little volume written for the dogberries of the early eighteenth century called "the compleat constable." it is amazing to read of the tyranny of the law towards the poor and the homeless of those days. the statutes made for punishing rogues, vagabonds, night walkers and such other idle persons are, says the anonymous legal author, "a large branch of the constable's office, and herein two things are to be known:-- "( ) what is a rogue and who is to be accounted a vagabond? "( ) what is to be done unto them?" the charming impersonal technical spirit of this little work is beyond all praise. not a word is ever used to remind you that, after all, a rogue and a vagabond is a man and a brother. you are taught first to diagnose him as izaak walton would teach the young angler how to discover the singling that did not usually stir in the daytime, and having captured your rogue and vagabond, you are then enlightened as to the various methods of killing or curing him. and first you are to note that all persons above the age of seven, man or woman, married or single, that wander abroad without a lawful passport and give no good account of their travel are accounted rogues. then follows a very lengthy list of such as are "of a higher degree and are to be accounted as rogues, vagabonds and sturdy beggars." such are all scholars and sea-faring men that beg, wandering persons using unlawful games, subtle crafts, or pretending to have skill in telling of fortunes by the marks or figures on the hands or face, egyptians or gypsies. all jugglers or slight-of-hand artists pretending to do wonders by virtue of hocus pocus, the powder of pimper le pimp, or the like; all tinkers, pedlars, chapmen, glassmen, especially if they be not well known or have a sufficient testimonial. all collectors for gaols or hospitals, fencers, bearwards, common players of interludes, and fiddlers or minstrels wandering abroad. also persons delivered out of gaols who beg their fees, such as go to and from the baths and do not pursue their license, soldiers and mariners that beg and counterfeit certificates from their commanders. and, lastly: "all labourers which wander abroad out of their respective parishes, and refuse to work for wages reasonably taxed, having no livelyhood otherwise to maintain themselves, and such as go with general passports not directed from parish to parish." in a word, all the unfortunate poor who would not do as they were told by their pastors and masters and wanted to work and amuse themselves in their own way were rogues and vagabonds. and it is not without interest to run your eye over this list, for the statutory rogue and vagabond is still with us and our poor law of to-day suffers from its direct hereditary connection with the poor law of the eighteenth century. the duty of "the compleat constable" was, in the words of dogberry, to "comprehend all vagrom men" and he was liable to a fine of ten shillings for every neglect. moreover, if you were a stalwart fellow, you could apprehend your own rogue and vagabond and hand him over to the constable, who was bound to receive him. having dealt in accurate detail with the classification and identification of rogues, we come next to the chapter on treatment, which is best given in the simple words of the original. "the punishment is after this manner. the constable, headburrough or tythingman assisted by the minister and one other of the parish, is to see (or do it himself), that such rogues and vagabonds, etc., be stript naked from the middle upwards and openly whipped till their body be bloody and then forthwith to be sent away from constable to constable, the next straight way to the place of their birth; and if that cannot be known then to the place where they last dwelt, by the space of one whole year before the time of such their punishment; and if that cannot be known then to the town through which they last passed unpunished." if, however, none of these habitats was discoverable, the vagrom man was sent to the house of correction or common gaol, where he was put to hard labour for twelve months. it is only fair to remember, "that after such vagabond is whipt as aforesaid he is to have a testimonial"--is this the origin of people asking for testimonials?--"under the hand and seal of the constable or tything-man and the minister testifying the day and place of his punishment; as also the place to which he is to be conveyed, and the time limited for his own passage thither: and if by his own default he exceed that time then he is again to be whipt--and so from time to time till he arrive at the place limited." in the good old days of merrie england the chief entertainment of the villagers must have been to crowd round the stocks and the whipping post on the village green--some of which are existing to this day--just as their city cousins swarmed along the road to tyburn. and if you had suggested that the players or the fiddlers were a more wholesome amusement for the people than these cruel sights, you would not only have shocked the minister but would have rendered yourself liable to be treated as a vagrom man and to receive a testimonial from the constable. it is easy to-day to see the wrongdoing of much of this, but it was not to be expected that the citizens of the time should see any evil in the everyday cruelties they were used to. the law seems to have been hard on the poor then, but very few worried about it. history is constantly showing us that in matters touching the imperfections of our own system of law we are colour blind to the cruelties we commit ourselves and easily moved to indignation by the horrors and wickednesses committed by foreigners, especially if they are foreigners who have never known the blessings of the particular religion we profess. when fynes moryson was travelling in turkey at the end of the sixteenth century, he set down with reasonable detestation some of the gruesome things he observed. "touching their corporal and capital judgments," he writes: "for small offences they are beaten with cudgels on the soles of the feet, the bellies and backs, the strokes being many and painful according to the offence or the anger of him that inflicts them. myself did see some hanging and rotting in chains upon the gallows." yet in england he might have seen many of his fellow countrymen hanging and rotting in chains, for there was at that date and for many years afterwards no country with a more evil record than england for the practice of capital punishment for minor offences. as to mere corporal punishment, there was not a village in england without its whipping post, and a common sight in the streets of the city was to see a poor wretch being whipped at the cart's tail. in ordinary cases the journey was from newgate to ludgate, or from charing cross to westminster, but for really bad cases it was extended from newgate to charing cross. and not only did these punishments exist in england, but the populace enjoyed them. one of the sights of london was to see the women whipped in the bridewell. the court of governors held their board meeting, presided over by a magistrate, and the sentence was executed in their presence and continued until the president struck the table in front of him with a hammer. the cry, "o good sir robert, knock! pray, good sir robert, knock!" which the victims screamed out whilst under the lash, became a common slang cry among the lower orders in the streets of london in the seventeenth century. there can be no doubt about the horrors of the old prisons, but it was only men and women of especial insight who recognised that there was real evil in them. literature and art did much to arouse the public conscience. there is a strong description of the bridewell in "roderick random," where smollett makes miss williams tell her life story. in this prison, she says, "i actually believed myself in hell tormented by fiends; indeed, there needs not a very extravagant imagination to form that idea; for of all the scenes on earth that of bridewell approaches nearest the notion i had always entertained of the infernal regions. here i saw nothing but rage, anguish and impiety; and heard nothing but groans, curses and blasphemy. in the midst of this hellish crew i was subjected to the tyranny of a barbarian who imposed upon me tasks that i could not possibly perform and then punished my incapacity with the utmost rigour and inhumanity. i was often whipped into a swoon and lashed out of it, during which miserable intervals i was robbed by my fellow-prisoners of everything about me even to my cap, shoes and stockings: i was not only destitute of necessaries but even of food, so that my wretchedness was extreme." no one need suppose that smollett is guilty of exaggeration, for the well-known plate of hogarth shows us the actual scene and the records of the place are numerous. there were, of course, just as many good and charitable men and women then as there are now, but the possibility that a bridewell was a thing that the world had then no use for was entirely beyond the thought of the eighteenth century citizen. in the same way how few of us recognise that there is much room for reform in the penal system of to-day. it is natural that it should be so. we arrive in the world knowing nothing much about it, we are brought up to believe that everything that has been going on for the last few centuries has been for the best, and the tired old ones who are leaving us are never tired enough to leave off telling us that they have made every possible reform that it was safe and advisable to make. in the few years of hustling life and in the scanty hours that he can spare from earning his daily bread the average citizen has little time and opportunity to investigate the social system of which he is a unit, or to understand how or why the wheels of the world machine are grinding unevenly. when we read of the horrors of two or three hundred years ago, it should not be to cast a reproach against our fathers, but rather to learn who were the men and women who moved the world of that day to see things as they were. these glorious spirits have enabled us to enter upon our inheritance free from the worst degradations of the past and we may best render them thanks and praise by learning to follow their example. i make no doubt that most of us are much like old fynes moryson, who, being an ordinary average englishman, saw the everyday horrors of his own country, but was in no way impressed by them, yet was moved to grave indignation at the wickedness and cruelties of foreigners. truly the seventeenth century turk was a cruel beast. moryson tells us with honest reprobation, but in gruesome detail, of the turkish methods of impaling, where a "man may languish two or three days in pain and hunger; if torment will permit him in that time to feel hunger for no man dares give him meat," and of casting down malefactors to pitch upon hooks and other nameless horrors. yet if he had been in london on october th, , and dropped into the guildhall, he might have heard the lord chief justice of england, the great coke, using much persuasion to richard weston, who, being accused of the murder of sir thomas overbury, stood mute, refusing to plead. coke and his brother judges, having failed to persuade the wretched weston to utter a plea of not guilty, the lord chief justice repeated for his benefit the law of england at that time and reminded him that the prisoner who wilfully stood mute must undergo the _peine forte et dure_, the extremity and rigour whereof was expressed in these words, "_onere, frigore et fame_." "for the first," continued his lordship, "he was to receive his punishment by the law, to be extended and then to have weights laid upon him no more than he was able to bear which were by little and little to be increased. for the second, that he was to be exposed in an open place near the prison in the open air, being naked. and; lastly, that he was to be preserved with the coarsest bread that could be got, and water out of the next sink or puddle to the place of execution, and that day he had water he should have no bread, and that day he had bread he should have no water; and in this torment he was to linger as long as nature could linger out so that often times men lived in that extremity eight or nine days; adding further that as life left him so judgment should find him. and therefore he required him upon consideration of these reasons to advise himself to plead to his country." notwithstanding this advice the wretched man continued mute, but after a consideration, during an adjournment of three or four days, of the law of procedure as laid down by lord chief justice coke, weston thought better of it and pleaded not guilty, and was duly convicted and executed. how illogical it seems that a citizen whose state executed this form of torture on its prisoners should hold up the holy hands of horror at the variations of cruelty that satisfied the lust of the unspeakable turk! the _peine forte et dure_ remained one of the pillars of our law until the reign of george iii. and was carried into execution in the reign of queen anne and george ii.--so obstinately do we cling to our ancient precedents and so fearful are we of facing the narrow paths that lead to better things. when oliver goldsmith wrote, "laws grind the poor and rich men rule the law," i do not know that he wished to make any specially unkind attack upon the rich. i imagine he merely intended to state a fact which seems in all ages to have been universally true. i do not suppose that in the middle of the eighteenth century anyone in the least recognised the actual horrors that were going on around him unless it was some poet and dreamer like oliver himself. the strong, sensible men of that generation were as assured of their own righteousness as they are to-day. dr. johnson told dr. maxwell that "the poor in england were better provided for than in any other country of the same extent; he did not mean little cantons or petty republics. where a great proportion of the people (said he) are suffered to languish in helpless misery that country must be ill-policed and wretchedly governed; a decent provision for the poor is the test of civilisation. gentlemen of education, he observed, were pretty much the same in all countries; the condition of the lower orders, the poor specially, was the true mark of national discrimination." the good doctor rolled all that excellent stuff out one evening in to the rev. dr. maxwell, the assistant preacher of the temple, who, like boswell, faithfully recorded what he remembered of it in the morning--i doubt not that if dr. johnson had lived in , or , or , or had flourished under caligula or nero, he would have rolled out the same sonorous complacent nonsense to some sort of faithful human gramophone who would have recorded the utterances of his master's voice with a canine credulity in its omniscience. there is nothing extraordinary in the divergence of the views of oliver goldsmith and dr. johnson about the law and the poor. the good doctor held the strong, sensible, tory view that the system of treating the poor handed down to us by our forefathers was the right and proper system, that it was at least as good as any other system, that nothing anyhow could be learned from the hated foreigner, and that to pander to dreamers and busybodies, who found fault and wanted to alter things, was to start down the broad road of destruction. oliver goldsmith might have thought the same thing if he had been an englishman, but he had the saving grace of irish blood in his veins, and the true irish have the power of looking beyond the present, and are often prophets and dreamers of dreams, seeing signs and wonders that we wot not of. "sir!" said dr. johnson on another occasion, and when he began like that you knew that wisdom was about; "the age is running mad after innovations; all the business of the world is to be done in a new way; tyburn itself is not safe from the fury of innovation." it having been argued that this was an improvement--"no, sir (said he eagerly), it is not an improvement; they object that the old method drew together a number of spectators. sir, executions are intended to draw spectators. if they do not draw spectators, they don't answer their purpose. the old method was most satisfactory to all parties; the public was gratified by a procession; the criminal was supported by it. why is all this to be swept away?" and boswell and sir william scott nodded approval, just as you and i would have done or do now when some important old gentleman lays down the law about something of which he knows perhaps even a little less than we do and we are too courteous or cowardly to tell him that at the back of our minds we believe he is talking nonsense. if you would be gratified by a tyburn procession, you may see one any day for yourself in hogarth's print of the awful end of the idle apprentice. the ragged men, women and children bawling dying speeches about the streets, the criminal in the cart sitting beside his coffin, the chaplain exhorting the poor outcast, who, if he still courted popularity, scoffed openly, shouting to his friends on st. sepulchre's steps where they stood with their nosegays to give their pal a last greeting. what a solemn impressive scene! all the way up holborn there is a crowd so great that every twenty or thirty yards the cart is pulled up, and now someone brings out wine and the malefactor drinks a last toast. and when he reaches the fatal tree the ribald mob swears and laughs and shouts out obscene jests. amid these noises a psalm is sung and the sound of it drowned in filthy tumult. so was the life of a fellow sinner brought to an end in the eighteenth century. and there were men and women who wanted to abolish it all. it was too much for dr. johnson. "tyburn itself not safe from the fury of innovation!" fancy that! what a terrible outlook! the law deserting the poor and giving them no more cheap excursions to tyburn--well might the good doctor shake his dear old head and prophesy woe. and when dr. johnson upheld the english treatment of the poor in , we may suppose he knew as much about it as a literary professor of to-day knows about what is going on in the workhouse, or the police court, or the county court of our own time. the belief that the world is the best possible of worlds has its value in making for the stability of things, but mere ignorance of the facts of life, coupled with that strange form of piety which accepts whatever system was good enough for a past age as the only possible system for this, renders the pace of social reform as imperceptible to the human mind as the movements of glaciers. if a history of the law and the poor were to be written, it would be a story of the lower classes emerging out of slavery into serfdom, out of serfdom into freedom of a limited character, and every age finding new abuses to remedy and trying in some small way to rid the law of some of those traits of barbarism which linger in its old-world features. to each new generation the terrors of the past iniquity of the law are mere nightmares. we can scarcely believe that what we read is true any more than our grandchildren will be able to understand how we were able to tolerate some of the everyday legal incidents of our daily courts. less than a hundred years ago at salford quarter sessions there were over two hundred prisoners, all poor and mostly very young, and the law thought nothing of transporting them for life or fourteen years as a punishment for small thefts. and horrible as all this cruelty was, yet i make little doubt that the judges of the time, with very few exceptions, administered the law as humanely as they do to-day. sir thomas starkie, the learned chairman of the salford epiphany quarter sessions in , no doubt felt very grieved when he sentenced martha myers, aged sixteen, and mary mason, twenty-four, to seven years' transportation. i expect he thought he was "giving them another chance." perhaps he was. we do not know. they may have become the mothers of big-limbed colonial aristocrats instead of peopling the hundred of salford with another generation of feeble-minded criminals. nowadays there is a tendency among the less discerning of mankind to set down all the rough edges and inequalities of the law to the fault of the judges, though in truth they have but a small part in the making of new laws, and i do not think they can be rightly blamed for harsh administration. they get the blame because they are the figure-heads of the show, so to speak, and the public know nothing of the difficulties under which the judges labour. it is their duty to administer the complicated modern laws turned out by parliament in a somewhat haphazard fashion, and they are bound to keep alive old-world laws that ought long ago to have been shot on to the rubbish heap. nearly all the law relating to the poor will be found to be defective to our modern sympathies, just because it is a patching up of the ancient cruel pagan law of past ages and does not break bravely away from the old superstitious uses and close for ever the volumes of laws that were made in the days when liberty and equality and fraternity were words of anarchy and rebellion. the poor are suffering to-day at the hands of the law because in the evolution of things we have a lot of old derelict law made by slaveowners for slaves, by masters for serfs, by the landlords for the landless. it is law that has no more relation to the wants of to-day, and would be of no more purpose to a ministry of justice--if we had one--than crossbows and arquebuses would be to the war office, or coracles to the admiralty. and, instead of cursing the judges, who, poor fellows, are doing their best, i wish our parliamentary masters would look into the history of the matter. they would find, i think, that in the last few years enormous reforms have been made in modifying the cruelty of the law to the poor, and might discover, by marking back on the track of past reform, the lines upon which further evolution may be hastened. one thing, i think, they will be convinced about: it is not the judges who are hard on the poor, it is the law. it is the sins of the lawgivers of the past that the poor are expiating to-day. chapter ii the ancients and the debtor my thoughts are with the dead, with them i live in long-past years, their virtues love, their faults condemn, partake their hopes and fears, and from their lessons seek and find instruction with a humble mind. robert southey: "my days among the dead are past." i find this question of the debtor, and our modern method of imprisoning the poorer variety of the genus, in the forefront of any consideration of the problem of the law and the poor, because to my mind it is a clear and classic instance of the way in which it comes about that the law with us is a respecter of persons. the physiological tutor will take his pupils into the laboratory and cut up a rabbit to show them where their livers ought to be, the microscopist will choose a newt to exhibit to you the circulation of the blood, and in like manner, for my purposes, the debtor seems to me to possess all the necessary legal incidents in him through which one can give an excellent object lesson on the law and the poor. there is no legal mystery about a debtor; he is a common object of our legal seashore, as ancient of lineage as the periwinkle and sometimes almost as difficult to get at. everyone has in his life at some time or other been a debtor, though not all of us have attained to the dignity of a co-respondent, a mortgagor, a garnishee, a bankrupt or a _cestui que trust_. it seems to me that to demonstrate to the man in the street the unfairness of our law of imprisonment for debt is such a feasible proposition, that i have come to regard the subject as very fitting for the citizen's kindergarten education on legal reform. once understand the history, and the causes of the continued existence, of imprisonment for debt, and its evil effect on right action, conduct and social life, and you will find it easier to diagnose the more obscure legal diseases which are partially the outcome and partially the cause of much real distress among the poor. carlyle tells us to "examine history for it is philosophy teaching by experience," and, if we take his advice in this matter of imprisonment for debt, we shall, i think, be bound to admit that what is going on among us day by day in the county courts of this country is in historical fact a relic of a very ancient barbarism. it is the more extraordinary to me that this relic should still be venerated, since history also makes it clear that teachers, prophets and law-givers of all ages have testified to their sense of the cruelty and injustice of the law which thrusts a man into prison because he does not pay his neighbour what he owes him. i propose, therefore, before i set down exactly what we are doing to-day, to trace the pedigree of our present system of dealing with debtors and show you historically and cinematographically, as it were, how the world has treated its debtors in the past and what the saner men of different ages thought about it at the time. in this way the man in the street of to-day will have the material for forming a sound judgment on the question of what we should do with the poor debtor. and to begin with the old testament. let us remember with gratitude the remarkable action of elisha in the matter. elisha went the length of performing a miracle to pay the bailiffs out. there are many poor widows in the mean streets of our own cities looking down the road for the elisha of to-day who cometh not. miracles do not happen nowadays; people don't do such things. still it is interesting to know that there was imprisonment for debt in elisha's day, just as there is now--for the poor and only for the poor--and it is encouraging to know what elisha thought about it. what happened was this:-- the county court bailiffs of the county court of israel, holden at samaria, went with a body-warrant to seize the two sons of a poor widow on behalf of a creditor of her late husband, just as they might do to-day. fortunately, the deceased had been a servant that did fear the lord, and elisha, hearing of the trouble, went down to the house, and in that simple, kindly way that the dear old prophets had of putting little troubles straight for members of their congregations and also no doubt to show the contempt he had for the proceedings of the county court of samaria, sent the widow out to borrow empty vessels of her neighbours. these he miraculously filled with oil of the best, and the only pity of it was that there were no more vessels to fill, for elisha was in form that morning, and was sorry to stop. when it was over he said to the widow: "go sell the oil and pay thy debt and live thou and thy children of the rest." i am very fond of that story. i like to believe it really happened. i wish it could happen to-day, for there are many poor women in much the same straits as that poor widow. i have never heard the text referred to in churches and chapels, and i am not surprised. a minister who preached about it would have to explain that he could not do miracles of that kind himself, and if he were to do the next best thing and preach about the iniquity of imprisonment for debt straight from the shoulder--as i am sure elisha would have done--the respectable credit draper, the pious grocer, and all the noble army of tally-men would get up in their pews and walk out of his church or chapel in disgust. the days of miracles are past, but if it was worth while for a holy man like elisha to show what he thought about imprisonment for debt, by means of a miracle, surely, after all these ages, we might have improved that particular piece of barbarism off the face of the earth. but no. the poor are worse off now than they were then. the bailiffs come for their bodies on behalf of their creditors still. and they look down the road in vain. there is no elisha. and when you come to the new testament the matter is laid down even more clearly. matthew vi. has the actual words of our lord's prayer to be, "and forgive us our debts as we also have forgiven our debtors." if the forgiveness of our debtors is a condition precedent to our own forgiveness, most of us are in a parlous state. but is it too much in this christian country of ours to suggest that, even if the highest ideals of the master are beyond our attainment, we need not insult our belief by continuing a barbaric pagan system of cruelty which has been singled out for special disapprobation by the word that we cannot shut our ears to? you remember the parable of the king that took account of his servants which matthew sets out in his eighteenth chapter. how a servant owed the king ten thousand talents and, as he had not wherewith to pay, his lord commanded him to be sold, and his wife and children, and all that he had, and payment to be made. note that in those days the wife and children were actually sold into slavery. we do not do that: we remove the bread-winner, only, to gaol and care for his wife and children in the workhouse. it is encouraging to find this much reform after nineteen christian centuries. the servant, you will recollect, pleaded with the king, saying, "have patience with me, and i will pay thee all." debtors have not altered much since that date, and the text has a familiar ring in the ears of a county court judge. the lord of that servant, being moved by compassion, released him and forgave him the debt. this is important to remember, for the servant being forgiven his debt was without excuse for his subsequent contemptible conduct. and, indeed, i have often found that men who have been most leniently treated in their own failures by those in a better position, are themselves most greedy in extorting the uttermost farthing from their smaller victims. speaking generally, it is not the most desirable class of trader that makes use of the debt-collecting system of the county court. the servant of the parable was the meanest of curs. he "went out, and found one of his fellow-servants, which owed him a hundred pence: and he laid hold on him, and took him by the throat, saying, pay what thou owest." here, again, we may flatter ourselves on our superior procedure. if this had happened in lambeth, the servant would not have been allowed to go for his fellow servant with such jubilant audacity. nowadays everything would be done in legal decency and order. the debt being for a hundred pence, and, therefore, being within the jurisdiction of the county court, a summons would have to be issued, fees would have to be paid to the treasury and the court officials, and a lot of money spent and added to the debt before imprisonment followed. still the rough-and-ready methods of the earlier centuries were certainly cheaper, and the result was much the same. for we read that, though the fellow-servant pleaded in the same formula, "have patience with me, and i will pay thee," the creditor of the hundred pence stood firm for his rights and cast his fellow servant into prison till he should pay his due. and if this had been a repertory drama and not a parable, the curtain had fallen on that scene and one would have come away depressed with the abjectness of human nature and with a cold feeling that the world was a drab uncomfortable place. but the ancient dramatic stories always have a happy ending. there is more of the spirit of the old adelphi than of the gaiety theatre, manchester, about the parables. the lord hears of his servant's scurvy behaviour and, to the delight of all sane men of child-like and simple faith, the wicked servant is delivered to the tormentors till he shall pay all that was due. i confess that my legal mind has been haunted with the thought that, the lord having forgiven the servant his debt, it was rather a strong order for him to go back on that forgiveness. doubtless there was no consideration for the forgiveness, it was _nudum pactum_, or there may have been an implied contract that the servant should do unto others as he had been done by, but i rather expect the lord and his advisers only considered the justice of their act rather than its technical legal accuracy. but one thing we can rejoice in. there is the dramatic story, and no one can construe it into approval of any form of imprisonment for debt. i know that many who do not regard the bible as an authority will not be troubled about this testimony; probably many more who do read the scriptures for guidance will be pained that anyone should make use of holy words to upset a system that they find so useful in the commercial weekdays of life. moreover, some will shake their heads and remind me that "the devil can cite scripture for his purpose." that is true enough. but it will be a very clever devil who can cite any scripture in support of section of the debtors act, . and i will pass away from scriptural precedents to others which, though to me they possess a less compelling sanction, will perhaps have more weight with men of the world. in the history of ancient greece the debtor played an important part. let me remind you what the archon did. the particular archon i refer to is solon. solon knew all about imprisonment for debt, and his evidence on the subject is most convincing. it is well to remember, too, that solon was a business man--i have this from grote, who got it, i fancy, from plutarch. exekestides, solon's father, a gentleman of the purest heroic blood, "diminished his substance by prodigality," and young solon had to go into business; in modern phrase, he "went on the road," and saw a lot of the world in greece and asia. i mention this because i am always told that if i knew anything of business i should understand the necessity of imprisonment for debt. solon was emphatically a business man. solon was also a poet, which perhaps was his best asset as a social reformer, but he was no sentimentalist if, as some say, when he was a general attacking a rebellious city he ordered the wells to be poisoned to put an end to the strife. when solon in a time of grand social upheaval was made archon, he found the poorer population, including particularly the cultivating tenants, weighed down by debts and driven in large numbers out of freedom and into slavery. let me set down the condition of things in the careful words of grote lest i appear to exaggerate. "all the calamitous effects were here seen of the old harsh law of debtor and creditor--once prevalent in greece, italy, asia, and a large portion of the world--combined with the recognition of slavery as a legitimate status, and of the right of one man to sell himself as well as that of another man to buy him. every debtor unable to fulfil his contract was liable to be adjudged as the slave of his creditor, until he could find means either of paying it or working it out; and not only he himself, but his minor sons and unmarried daughters and sisters also, whom the law gave him the power of selling. _the poor man thus borrowed upon the security of his body_ (to translate literally the greek phrase) and upon that of the persons in his family." the words i have italicised are interesting as exactly defining the principle of all imprisonment for debt. a wage earner to-day who runs up bills with tally-men and grocers obtains credit upon the security of his body. i have heard from the wife of a poor debtor an apt but unconscious translation of the latin maxim, _si non habet in aere luat in corpore_. her allegation was that a tally-man had said to her husband, "if i canna 'ave yer brass i'll tek yer body." in the north country, among the more old-fashioned bailiffs and their victims, warrants of arrest are commonly known as "body warrants." no doubt the imprisonment of to-day is different in degree from the slavery of debtors in greece five hundred years before christ, but it is absolutely the same in principle, founded on the same idea, and worthy to be maintained or abolished by the citizens of this state for the same reasons that were found good by the citizens of athens. thus it is that it is worth while finding out what solon thought about it. i wish solon's tract, "what the archon saw," had come down to us, and we could have quoted actual instances of the wickedness of imprisonment for debt in his day, but at least we know what he thought of it, and, what is really important to us, what he did. solon had a pretty wit in titles. he called his bill _seisachtheia_, or the shaking off of burdens. the relief which it afforded was complete and immediate. it cancelled at once all those contracts in which the debtor had borrowed on the security of his person or his land; it forbade all future loans or contracts in which the person of the debtor was pledged as security; it deprived the creditor in future of all power _to imprison_ or enslave or extort work from his debtor, and confined him to an effective judgment at law, authorising the seizure of the property of the latter. this was indeed a shaking off of burdens. for here we find, not only was imprisonment for debt abolished lock, stock and barrel, but a law enacted protecting the land of the cultivator from being seized for debt. this is akin to what in some of our colonies is called a homestead law, and i have always contended that in the interests of the state the few sticks of furniture which a poor man and his wife and children always call "the home" should be protected from arrest for debt, just as the bread-winner's body should be exempt from imprisonment. i could have got along with solon. and when one is told the old tale that continues to be put forward by those who wish to retain imprisonment for debt--that the workman will starve for want of necessary credit and that trade will stagnate owing to timid creditors refusing to trade--let us remember with pleasure that that was not what the archon saw as a result of his beneficial measures. on the contrary, the testimony is overwhelming that there grew up a higher and increasing respect for the sanctity of contracts. the system of credit-giving, and especially of moneylending, assumed a more beneficial character, and "the old noxious contracts, mere snares for the liberty of a poor free man and his children"--the flat-traps of to-day--disappeared. what happened was what will happen here when we abolish this degrading system of giving credit on the sanction of body warrants. what happened in athens was that, although there were some fraudulent debtors, the public sentiment became strongly in favour of honesty, and it is agreed that the prophecies of solon's failure were not made good, and "that a loan of money at athens was quite as secure as it ever was at any time or place of the ancient world." furthermore, it is acknowledged by the better authorities that what i expect and believe will happen in the mean streets of england when imprisonment for debt is abolished, actually did happen in athens, and, to use grote's words, "the prohibition of all contracts on the security of the body was itself sufficient to produce a vast improvement in the character and conditions of the poorer population." of course, i am not putting forward "what the archon did" as an example to the archons who didn't of to-day. the theory of evolution teaches us that in two thousand years the solon type must have improved, and that the solon that we see in the latter-day armchair of state must be a far, far better thing than anything that obtained in ancient greece. possibly, the world having no use at all for solons, the type is extinct. be that as it may, i am more than ever puzzled since i have studied the records of what the archon did. if the world had got so far in the question of imprisonment for debt five hundred years before christ, why are we where we are now nineteen hundred years since the master set before us the true doctrine of forgiveness of debts? the roman laws against the debtor upon which we have ultimately modelled our own were equally harsh and would nearly satisfy the moneylender or tally-man of any age. upon notice, a debtor had thirty days in which to discharge his debt. if he did not do so his creditor carried him off in chains. note, however, that he was not a slave, but his creditor had to keep him in chains for another sixty days, during which time he had to bring the debtor out on three successive market days to give his friends an opportunity of paying up and releasing him. the creditor had also to provide the debtor with a pound of bread a day. in these socialist days we take that burden off the creditor's shoulder and a generous state feeds the imprisoned debtor at the cost of the community. on the third market day, if the debtor's friends were still backward in coming forward, the debtor was killed and thrown into the tiber, or his body was divided among his creditors, which was the only dividend they received. if there was any market for him he was sold into slavery. it seems that in the very early days of ancient rome each creditor had a right to carve his pound of flesh from off the debtor. portia's point against shylock: ... nor cut thou less, nor more, but just a pound of flesh:... was foreseen and provided for in the drafting of the twelve tables. it is enacted in the third table: "after the third market day the creditors may cut their several portions of his body: and any one that cuts more or less than his just share shall be guiltless." unless, therefore, the laws of venice amended or repealed the twelve tables, shylock's case seems to have been wrongly decided. what is at least curious is that the ancient idea of debtor and creditor law embodied in those ancient statutes should be the foundation of one of the most popular plays in the english language. some good people have found a difficulty in understanding shylock's outlook on life and cannot comprehend why a creditor should enjoy killing a debtor. but, after all, it is equally strange why a creditor should take pleasure in imprisoning a debtor. yet to-day thousands of debtors go to prison because they have not means to pay their creditors. the difference between killing and imprisoning a debtor is a difference in degree only. the principle is the same. the object of the creditor is, perhaps, in the first place, to get repaid his debt; when he finds this is impossible the death or imprisonment of the debtor merely satisfies his desire for revenge. the ancient romans were, in one way, a more practical people than ourselves, for they threw the costs of this revenge direct upon the creditor, whereas we throw it upon the taxpayer. if this particular impost were made upon me in any direct manner it would almost persuade me to be a passive resister. i am glad, however, to remind you that in historical times at all events the romans did not carry out the law of the twelve tables to its uttermost cruelty. the popular way of dealing with a debtor seems to have been to sell him into slavery and then to credit him in your ledger with the price he fetched--less the out of pockets--much as we do to-day when we issue execution against chattels. in later years the slavery of debtors was abolished and imprisonment much like our own was substituted, but the romans never had a lawgiver as wise and powerful as solon to get rid of imprisonment for debt altogether. and the roman imprisonment for debt in some shape or other runs through the social systems of the middle ages, being harsh in one place and less cruel in another, and mitigated at one date and aggravated at another. always we find a feeling among the more thoughtful of mankind that it is in itself a harsh and cruel system and a desire among at least a few to help the victims of it in their distress. fynes moryson, who was in rome in , tells us of a practice which then prevailed in the pope's state which might be introduced into protestant england to-day in a lively belief that it would be in accordance with the tenets of the christian faith and a certain hope that it would relieve many a poor wretch in misery and despair. "if," he writes, "a man be cast into prison for debt, the judges after the manner visiting frequently those prisons, finding him to be poor, will impose upon the creditor a mitigation of the debt, or time of forbearance, as they judge the equity of the case to require, or if by good witnesses they find the party so poor as really he hath not wherewith to pay his debt they will accept a release or assignment of his goods to the creditor and whether he consent or no will free the debtor's body out of prison." at all periods of time we find the same uneasiness in the minds of rulers and governors about keeping a poor man in prison for debt when he cannot pay. the governors of english gaols will tell you that per cent. of the debtors lying in prison to-day for civil debt, rates, maintenance or bastardy orders and small fines are too poor to pay. yet here in england our legislators cannot even get as far as the papal state of the sixteenth century in an exercise of charity to the poor and distressed. pending the abolition of imprisonment for debt, a home office visitation with power to release the really unfortunate on the lines of the practical experiment which fynes moryson wrote home about three hundred years ago would be something to be going on with. this, however, is a matter which is concerned with methods of reform. but, before we deal with amendments of the law, it is necessary to trace clearly and accurately the evolution of imprisonment for debt in england, in order that we may understand how and why it exists to-day as a law that can only be put in force against the poor. chapter iii of imprisonment for debt in england oh let me pierce the secret shade where dwells the venerable maid! there humbly mark, with reverend awe, the guardian of britannia's law; unfold with joy her sacred page, the united boast of many an age; where mixed, yet uniform, appears the wisdom of a thousand years. sir william blackstone: "the lawyer's farewell to his muse." i am honestly sorry to have to inflict a chapter of legal history upon anyone, but for the life of me i do not see how the imprisonment for debt of to-day can be intelligently appreciated until one knows something of its lineage. to begin with, it may be news to some folk to learn that in the merry days of henry iii. there was no imprisonment for debt at all. if godfrey the garlic seller or hogg the needier owed rose of the small shop a tally for weekly purchases and would not pay, rose, poor woman, could not get an order to send them to gaol. yet there is no evidence that trade was thereby injured, or that there was any difficulty in rose regulating her credit-giving, or in godfrey and hogg and the rest obtaining as much credit as they deserved. the first thing to remember is that england at one period had no use for imprisonment for debt. it occurs to me that, if i can persuade the man in the street to understand how imprisonment for debt began and continued until it became a great public scandal, and show how in the last hundred years little by little its evil influence and extent have been abated with good results, we shall be making great strides towards the restoration of that liberty in england which in the matter of debt was the citizen's privilege in the days of henry iii. but the reason for the absence of imprisonment for debt in these early feudal days is not so satisfactory to modern ears as one could wish. lord chief baron gilbert, that crisp and accurate lawyer of the eighteenth century, puts it very clearly when he says: "but there was no capias for the debt or damages of a common person, because the party having trusted him only with personal things his remedy was only on the personal estate, and the king had the interest in the body of his subject; and the lord in his _feudatory_ or _vassal_ to be called out to war or to labour for him; and therefore none but the king could imprison him." and this seems clear, that the reason a creditor could not imprison a debtor was because in those days a debtor had only a limited interest in his own body. the fighting part of his body belonged to the king, the labouring part of his body belonged to his lord, and the king and the lord were not going to have their rights and property in his body interfered with because the subject and vassal had been foolish enough to run into debt with another subject and vassal who wanted his money. you will, indeed, find that the whole history of the law and the poor seems to be a long struggling of the poor out of slavery and serfdom where they had a certain guaranteed amount of food and protection from their masters, similar in nature to that given to the ox or the ass or anything that was his, into a state of freedom, so-called, in which they had given up their rights to food and protection without getting any certain rights of wages or the equivalent of wages in return. we are in the middle of adjusting these things to-day, and the story of imprisonment for debt, and why it is retained at the present only for poor people, is a page in the curious english history of social progress. as long as the debtor was a vassal having certain duties to perform for the lord of the manor his lordship thought him as much worth preserving as the game or venison within the curtilage of his park. it was for this reason you could not take his body in execution. as you may know, when you obtain a judgment in a court of law the next thing to do is to proceed to execution; that is to say, the judge having given you judgment a writ is granted to you whereby you get the sheriff to take your part and seize for you either the goods or body of your opponent. the history of these ancient writs is full of amusing folklore for those who love such things, and we still call them by their old dog-latin names, not for any scientific purpose, but for much the same reason that the doctors write their prescriptions in hieroglyphics and priests mumble latin or english--but always mumble--in a cathedral. it is the essence of a profession that it should be mysterious and incomprehensible, otherwise the common herd would not respect it and pay its fees. and, prior to henry iii., if you got a judgment against your neighbour for money owing by him to you, your remedies of execution were these. by a writ of _fieri facias_ the sheriff could be commanded to seize the goods and chattels of the debtor in satisfaction of the debt. this dear old writ, the _fieri facias_, affectionately alluded to as the _fi. fa._ by attorneys, bailiffs and others who have the handling of the fellow, is still with us. i agree that without him the delivery of judgments in courts of law would be mainly of academic and rhetorical interest. for as gilbert--not william schwenck, but sir geoffrey the chief baron--puts it, if a party trusts a man with personal things, then his remedy should be against the personal things of the debtor, and this seems a principle of common law and common sense as just as it is homeopathic. as our latter-day gilbert would have put it, "the punishment fits the crime." but when you come to our other writ, the _capias satisfaciendum_, or "_ca. sa._" as it is written in the absurd legal shorthand of the day, or "body warrant" as it is still termed with brutal accuracy in lancashire, then you will find that in old days different considerations prevailed. you were not allowed to seize a man's body for debt, but only his goods. and i am glad to find myself setting forth high tory doctrine and asking my fellow citizens to return to the earliest common law of the land, for this seems clear that originally, unless the action was for trespass _vi et armis_, which was in the nature of a criminal matter, there was no remedy against the body of the defendant. the _ca. sa._ whereby the sheriff was ordered to seize the body of the defendant in execution could not issue at the instance of a successful plaintiff at common law. in other words there was no imprisonment for debt. our forefathers recognised what we seem to have partially lost sight of, that as credit could only be given commercially to a man with goods, it was fair and just that his goods should be seized if he did not carry out his contract. but for reasons of their own--no longer sound as reasons to-day, it is true--they refused to allow a man to mortgage his body for goods. body warrants only issued against criminals or in actions of a semi-criminal character. it will be reassuring to those conservative minds who fear the abolition of imprisonment for debt to remember that there was a time in england when it did not exist, and that if we abolish it to-day we are working on old-fashioned and constitutional lines. imprisonment for debt has not the sanction of antiquity, and a desire to sweep it away must not be put down to the wild and wicked desires of a political futurist architect, but rather to the pious hopes of one who is in deep sympathy with the best features of the norman and early english social institutions of his native land. to tell the long story of the statutory evolution of imprisonment for debt from the statute of marlbridge, henry iii. c. , to the act for the abolition of imprisonment for debt--so-called--of , would be out of place here. it is enough to know that little by little the principle of the right of one man to seize the body of another in an execution for debt became recognised by statutes and by custom until the wrongs it caused reached such a scandalous pitch in the eighteenth century that some reform of it became inevitable. the more modern contests over its partial mitigation from time to time throw a direct light on the differences of opinion upon the matter of to-day. it will be seen that there have always been two schools of thought among politicians. one school was clear, that to tamper with imprisonment meant ruin to trade; the other held--what i take to be the true gospel--that a man ought not to be allowed to obtain credit on the security of his body. until the end of the eighteenth century the harshness and cruelty of imprisonment for debt received little attention. the history of the debtors' prisons, the fleet, the king's bench, the marshalsea and the city compters, are pages of the story of our law that no one can read to-day without shame. yet the howards and frys who called attention to the facts met with just as little encouragement and attention from the rulers of the country as anyone does to-day who desires to put the coping stones on the completed work, the foundations of which were laid by these great reformers. the extraordinary results that took place through imprisonment for debt as it existed in the eighteenth century are surely beyond parallel in any legal system. the plays and fictions of the time are full of instances. you remember when roderick random finds himself in the marshalsea he meets with his old friend jackson and asks him about his _amour_ with the lady of fortune: "you must know," replies jackson, "that a few days after our adventure i found means to be married to that same fine lady you speak of and passed the night with her at her lodgings, so much to her satisfaction, that early in the morning, after a good deal of snivelling and sobbing, she owned that far from being an heiress of great fortune she was no other than a common woman of the town who had decoyed me into matrimony in order to enjoy the privilege of a _femme couverte_, and that unless i made my escape immediately i should be arrested for a debt of her contracting by bailiffs employed and instructed for that purpose." upon hearing this poor jackson escapes and serves for a few months as surgeon of a sloop, but, on his return, is arrested for a debt of his wife's and comes to live at the marshalsea on half pay. nor is there anything wildly improbable in the story. smollett had been in a debtor's prison himself, and very likely had heard the story at first hand, for many equally extraordinary stories in real life are well authenticated. there was the strange case of the lady who married a man under sentence of death to get rid of her debts, and was greatly upset when her husband was respited and sent to the colonies. but perhaps one of the most curious stories is that of the dear old blind spinster of clerkenwell, with a fortune of a thousand pounds, who took a deep interest in the career of an industrious shoemaker's apprentice and made him presents of clothes and a watch and lent him ten pounds. when he was out of his articles and was about to go home to leicestershire and settle down there, he was arrested for the loan and the attorney's bill of costs and the "garnish" at the lock-up to which he was taken. after a few days the kind-hearted lady visited him and offered him three alternatives. he might pay the money; go to the debtor's prison for the rest of his life; or marry her. he chose the last alternative and was kept in the sponging house until his wedding day. these stories are but a sample of the iniquities that were going on in that day, and yet then, as now, the feeling of legislators and business men seems to have been that it was dangerous to trade and business to sweep this horrible system away, so blind are people to the wrongs they see every day, so dull are ears to cries of pain and distress that are continuous and never cease. it would seem as though the conscience of mankind can only be startled into action by some catastrophe, some tragedy obviously brought about by bad government and bad laws, and not until then will it translate its knowledge of evil into demand for reform. the tragedies of imprisonment for debt occurred, but they took place behind closed doors and the world only heard of them by slow degrees. at length, however, the constant repetition of the miseries of the poor debtors who languished in prison, wasting their lives and eating out their hearts in despair, began slowly to convince the man in the street that there really was something wrong with the world and that the cup of human misery of some of their fellow creatures was slopping over into the saucer of despair. timid reformers began to think something might be done. the arguments then, as now, were all one way, but then, as now, there was no one to listen to them. good men had raised their voices to point out the wrong-doing that was going on, and the unnecessary wretchedness that was being caused, but nothing much came of it. there were a few desultory and ineffective movements towards discharging poor debtors, but the matter did not greatly interest mankind, and there seemed to the eighteenth century mind no very clear reason why a debtor once in prison for debt should ever be released. to-day, in the same way, it is difficult to persuade the average citizen that there is any injustice in a debtor being sent to prison for debt. the attitude of mind about the thing is not greatly altered, though happily the amount of injustice and wrong-doing has been lessened. it was not, indeed, until the beginning of the reign of queen victoria, a time of great hope for the poor and distressed, a period which has not inaptly been called "the springtime of social reform," that any practical movement was made. i myself keep march st as the birthday of the movement for the abolition of imprisonment for debt, but anyway it is a red-letter day in the history of english literature and worthy of great honour. for on that day, in the year , the first number of "pickwick," appeared and there is no doubt that the account of the fleet prison in that volume has made it the popular text-book of legal reform in these matters. if "pickwick" in was not the _causa causans_ of lord cottenham's bill to amend the law of insolvency which was introduced in december, , there is no doubt that dickens' stories of the cruelty of imprisonment for debt supplied the motive power necessary to pass it by rousing the public conscience to insist upon something being done. the point of particular reform aimed at by the bill was to abolish what was called arrest on mesne process. it is an absurd term, and it was a still more absurd thing. the wonder is that it had survived as long as it did. mesne process, translated into english, means middle process, and the idea was to lock a defendant up in the middle of the trial and keep him there in case it turned out at the end of the proceedings that he owed the money. it was as popular with the sharks of the eighteenth century as the present imprisonment is with the moneylenders and tally-men of to-day. any person who would make an affidavit that another owed him twenty pounds or more could lock him up pending the trial and, unless the victim could find the money and pay it into court, he remained in the sponging house until the trial came on. harry warrington was served so, if you remember. two gentlemen came from over the way, "one of them takes a strip of paper out of his pocket and, putting his hand upon mr. warrington's shoulder, declares him his prisoner. a hackney coach is called and poor harry goes to sleep in chancery lane." certainly harry owed the money and had been reckless and extravagant enough, but even then the method of arrest strikes us to-day as a little high-handed. nor was it always made use of with honesty. to bold rascals it was a very perfect machine for the wickedest blackmail. an affidavit of debt--and eighteenth century affidavits were no nearer the truth than those of the present century--was all that was required, and if in the end the affidavit was found to be false, the only remedy was to prosecute the swearer of it--if you could find him. a case that lord denman mentioned in the debates in created a good deal of uneasiness in the public mind. a certain portuguese nobleman, the duke de cadaval, on landing at falmouth, or when he was residing at plymouth, was arrested on a pretended debt, thrown into prison, and obliged to pay a large sum of money to procure his release. he afterwards recovered in an action for malicious arrest heavy damages, but he never received a penny of them, nor is there any record that the false witnesses were punished for perjury. there are many stories of this kind, and it was an obvious result of the system of arrest on mesne process. one would have thought that there would have been no difficulty about abolishing a legal machinery that brought about such injustice, but, in truth and fact, it was quite otherwise. indeed, the people who wanted to abolish the excellent and business-like system were regarded as very pestilent and turbulent busy-bodies by the average citizen. another incident of imprisonment for debt at this date was that if a creditor preferred to issue a _ca. sa._ to a _fi. fa._ and took the body of the debtor in preference to the property of the debtor, he thereby discharged the debtor. if, therefore, the debtor preferred imprisonment to paying his debts, the law afforded the creditor no other remedy. there were instances of debtors remaining in prison for over twenty years well able to pay their debts, but preferring to live in luxury within the rules of the prison. _re pickwick_ is perhaps the popular leading case on this point. but whilst we remember with pleasure how the law enabled our dear friend to outwit for a time those wily attorneys dodson and fogg, do not let us forget the terrible sights he saw in the fleet. the chancery prisoner, the fortunate legatee whose lawyers had had the thousand pounds legacy, and who was in the fleet, mending shoes for twenty years because the loom of the law had woven a shroud of costs round him and buried him in prison--he was no fiction. his heart was broken when his child died and he could not kiss him in his coffin. there he remained living a solitary lingering death, lonely amid the noise and riot of the fleet, until god gave him his discharge. this and many another case was before my lords and known to the intelligent commons when the question of the abolition of arrest on mesne process came up for discussion in . it is to lord cottenham, as i have said, that we owe the statute which, to use mr. atlay's phrase, "abolished the bane of mr. micawber's existence, imprisonment for debt on mesne process." nor must it be thought that it was done without a struggle. lord lyndhurst said, and no doubt truly, that, judging from the petitions, he should be within the truth in saying that the bill was very unpopular. the petitions were at least ten to one against the bill. there was no more enthusiasm about mitigating imprisonment for debt then than there is to-day. the history of these things is always the same; the traders objected to the abolition of imprisonment for debt, the newspaper proprietors strenuously opposed the reduction of the stamp acts, the doctors fought against national insurance. yet, when the horrible thing is done, we find them smugly prospering on the reform. lord brougham, who from the very first had always held instinctively the true faith in these matters, pointed out to a reluctant house how credit was imprudently given to the real injury of the customer who is induced to buy what he cannot pay for, and to the injury of those who do pay what they do owe, but who pay the dearer in proportion to the bad debts which the tradesman is led to let others contract with him. further, he emphasised the wrong done by clothing an insolvent person with an appearance of credit by lending him more goods which serve as a bait or decoy to others that have not yet trusted him. he laid down the principle that debt should never be treated as a crime and still less as a crime to be punished at the sole will and pleasure of the creditor, and eloquently called upon the peers to wipe out this foul stain from our civil code. arrest on mesne process was abolished, not ungrudgingly it is true, but it came to an end, and a commission was set up in to inquire and report upon the whole system of imprisonment for debt. this commission ultimately reported in favour of abolition. in another bill was introduced to distinguish between cases where it could be shown that the debtor was an innocent fool and not a culpable contumacious defrauder. it was not of much avail as a social reform, but may be fairly described, perhaps, as a worthy effort. the brightest reading in its history for us to-day is the debate in which lord brougham, with savage eloquence, rubs it in--the modern slang expresses brougham's method so accurately--and jeers at the opponents of imprisonment for debt now that all their cassandra prophecies over the abolition of imprisonment by mesne process have proved themselves to be worthless. abolition of this system had not diminished credit, and had not raised any difficulty in citizens obtaining credit. then, as now, these were the trade arguments against reform solemnly used by business men, officials and lawyers, and though, on each occasion when the reform has taken place, they have been found to be the hollowest nonsense, yet they are repeated to the reformers of to-day with the same pompous effrontery with which they were offered to lord brougham. we now come to , in which year the present state of the law was created, and it is this law which seems to me so unjust to wage earners and poor people who are in debt, placing them as it does in conjunction with the bankruptcy laws in such a wholly inferior position to that of the well-to-do citizens. in order to understand the exact legal position it is, i fear, necessary to deal with the matter in some little detail. the intention of the legislature at the time seems to have been right enough. it was desired, no doubt, that a fraudulent debtor should be punished and that an honest debtor should not. if a means could be invented to carry out this principle no one would utter a word against it. a fraudulent debtor is, i take it, a man who, having ample means over and above the reasonable necessities of himself and his family, conceals them or places them in fictitious names and then defrauds his debtor and refuses to pay him. i should be in favour of more stringent measures being taken against the fraudulent debtor, for one meets him every day, well-to-do and smiling, with a bill of sale on his furniture and everything in his wife's name. but he is the curled darling of the law. he makes use of the law to protect himself and his frauds, and the debtors act, which was intended to abolish imprisonment for debt, has no terrors for him, whilst under its provisions hundreds of weekly wage earners are imprisoned. as sir george jessel said, the real intention of the debtors act, , was to abolish imprisonment for debt for honest debtors and to retain the right of judges to punish fraudulent debtors. many of the sections of the act are framed, and to some extent assist, in the excellent aim of making it hot for the naughty and wicked debtor who has cheated or defrauded his creditors. why is such a person punished? asks the master of the rolls. i give the answer in his own words. "simply because he is a dishonest man. he need not perhaps be called a thief in so many words, but he is a man who takes or keeps money belonging to other people, and he is punished accordingly." instances of such are defaulting trustees and similar misdemeanants, and, so far as the act provides for their punishment, we have no quarrel with it. now no one would contend that the system of imprisonment for debt as carried out in the county courts is a system directed in the main against dishonest men. improvident, careless, foolish and childlike these poor defendants in the county court may fairly be described; but if a day of judgment audit could be carried out, and a balance struck on the item of "honesty" as between the working-men debtors and the class of traders who give them credit, i make little doubt which class, as a class, would show the better figures. no, we do not imprison in the county court for dishonesty _per se_; dishonesty may or may not be a feature of any particular case, but it is not an essential. the order for imprisonment is made under section of the debtors act, . that is the tally-man's charter. i am sorry to bore anyone with all these sections and statutes, but there is such a lot of inaccuracy written and talked about the matter that it is best to set down the actual enactment. we must remember then that the act, being an act for the abolition of imprisonment for debt, had begun by enacting in the fourth section that "with the exceptions hereinafter mentioned no person shall be arrested or imprisoned for making default in payment of a sum of money." these last words state quite clearly the true principle of what the law ought to be. unfortunately for the poor the special exception made for them has only too truly proved the rule. the opponents of abolition were but too successful in their endeavours to make inroads upon the thoroughness of the proposed reform, and one of the exceptions was called "a saving power of committal for small debts." it might have been better described perhaps "as a saving power to imprison poor debtors." this is the famous section of the debtors act, , over which so much controversy has since arisen, on the working of which two important commissions have sat and reported, and under which we may proudly claim to be one of the last civilised countries that clings to a system of imprisonment for debt. it is necessary to set out the section at some length, for it has a googlie element about it and is not so innocent as it appears on the surface. it first sets out "that any court may commit to prison for six weeks any person who makes default in the payment of a debt or instalment due in pursuance of a judgment." that, of course, is plain sailing imprisonment for debt. then, however, follows the sub-section--i again apologise for troubling you with all this, but it is really a good citizen's duty to understand it--which causes all the worry. it is enacted in sub-section ( ) "that such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has _or has had_ since the date of the order or judgment the means to pay the sum in respect of which he has made default and has refused or neglected or refuses or neglects to pay the same." it is the words that i have printed in italics that hit the poor man and the weekly wage earner, for of course it is generally provable that, although he has no present means to pay a debt, he _has had_ since the judgment means to pay which he has spent on the maintenance of his family, or, if you will, on beer or tobacco, or picture palaces, or, in a word, as good solvent middle class people would say--improvidently. the further matters enacted are all sensible enough, granted you approve of the main principle of imprisonment for small debtors. they deal with proof of means of the person making default, allowing such proof to be given in such manner as the court thinks just, and for these purposes the debtor and any witnesses may be summoned and examined on oath according to the prescribed rules. the other material points of the section are that a county court judge must exercise his jurisdiction in open court, he may order the debt to be paid by instalments, he may also make continuous committals on each unpaid instalment, he may vary and rescind the order, and the imprisonment when suffered does not distinguish or discharge the debt or other remedies of the creditor. the debtor can take his release in payment of debt and costs. anyone who studies this act of and comes to the conclusion that this system is anything less than imprisonment for debt, and not imprisonment for fraud, must, i think, be driven to argue that the men who drafted the act called the act an act for the abolition of imprisonment for debt, called section a saving clause for continuing imprisonment for small debtors in certain cases, and did not understand their business. as a matter of fact they knew their business very well indeed, and they carried it out faithfully and well. what happened undoubtedly was this: parliament as a whole was out to abolish imprisonment for debt. there were a lot of old-fashioned folk then as now, who wanted to retain it. compromises were made. it was agreed that there should be abolition, it was also agreed that there should be exceptions. the exceptions readily granted were cases of fraudulent trusteeship and the like. this was not enough for the old gang, so the promoters of the reform threw in poor persons owing small debts. the poor had as few friends in parliament as the fraudulent and they were huddled together into the same bundle of exceptions as a sop to the opponents of the bill. when folk describe our present system in the county court as anything other than imprisonment for debt, a legitimate offspring of its noble norman ancestor _capias ad satisfaciendum_, they do it in ignorance of the legal and political history of the debtors act, . i should like to have set out much of the debate in the house of commons on the second reading of this bill. sir robert collier, the attorney-general, openly expressed his regret that imprisonment for debt was going to be retained in the county courts, and several members spoke wisely about the hardships then inflicted on the poor and the undesirability of continuing them. but the following extract from a speech of mr. mcmahon shows that no one at that time was under any delusion about what was going to be done. "when," he said, "arrest on mesne process was abolished shortly after the passing of the reform bill it was then said that credit would be disturbed, and that traders would not be able to carry on their business. but these forebodings were purely imaginary, and in the same way he believed no evil would attend the good that must undoubtedly result from the final abolition of imprisonment. if, however, they allowed the rich man to escape under the bankruptcy system they ought not to admit the poor man to be liable to imprisonment, for by so doing they would certainly be open to the charge of having one law for the man in broadcloth and another for the man in corduroys." here the warning is clearly given by a man on the spot, that what they were about to do was to set up a system unfair to the poor, and there was really no doubt in the minds of any of the legislators of the day that they were deliberately retaining imprisonment for debt for the poor. i want to insist on this point because one of the stumbling blocks in the way of reform to-day is the strange belief, fostered by the tally-man and his friends, that in some mysterious way imprisonment for debt has really been already abolished and that the working classes really go to prison for contempt of court or some other reason. there is no truth in this whatever. the attorney-general who introduced the debtors act, , may surely be credited with understanding what it was intended to do. he knew well enough that his bill was going to abolish imprisonment for debt for the rich and retain it for the poor. he pointed out that he was making bankruptcy cheaper and more stringent. it would be obviously absurd, he said, to make a day labourer a bankrupt, and that brought him to the very difficult question of county court jurisdiction. at that time the county court had a jurisdiction to punish for fraud as an incident of debt and also to imprison for debt. he proposed to take away the jurisdiction to imprison for fraud and to leave fraudulent debtors, both rich and poor, to the criminal courts. "but then," he continued, "came the other question of county court imprisonment where a man was able to pay his debt, but would not do so. he did not regard that imprisonment as a mere punishment for a past offence _but it was a process of imprisonment for the purpose of compelling the payment of a debt_, and it was a process very analogous to the principle of the bankruptcy law." he came to the conclusion, after further argument, "that this power of imprisonment in the one case he had mentioned must be retained." when an attorney-general in brings in a bill to abolish imprisonment for debt and deliberately tells us that he retains one class of imprisonment for debt, it is inconceivable why people to-day should strive to make out that the system we are working is not imprisonment for debt, but something else. unless it be that the advocates of imprisonment for debt know in their heads that it is an evil, out-of-date system, and they have an instinct that it smells more sweetly under some other name. from to the present there has been no further reform. many hope that there never will be any, but for my part i have no doubt it will come along, not in my time, perhaps, but whenever the right moment may be. from until to-day over three hundred thousand english citizens have been actually imprisoned who have not been guilty of any crime whatsoever. they have been imprisoned mainly for poverty or, if you will, for improvidence--that blessed word that so insidiously describes in the poor that failure in economic asceticism, that lack of cold self-denial of luxury and extravagance, that absence of patient thrift and simplicity of life--characteristic features which are never wanting in the beautiful lives of those social classes above them that the poor must learn to look up to and to imitate. chapter iv how the machine works roll on, thou ball, roll on! through seas of inky air roll on! it's true i've got no shirts to wear, it's true my butcher's bill is due; it's true my prospects all look blue-- but don't let that unsettle you! never _you_ mind! roll on! w. s. gilbert: "to the terrestrial globe." i fear the earth will do a lot of rolling on before we abolish imprisonment for debt, but very likely i am exhibiting a somewhat senile haste in the matter which is unbecoming. to me it appears strange that, whilst in every other science the professors of it are making earnest efforts to place the result of their studies to the credit of mankind, the law seems more incapable than theology of assimilating new ideas and getting into step with the march of time. i have no hesitation in saying that the county court, as a debt-collecting machine, is a one-horse wooden antiquity only fit for the scrap heap. if you went down to euston and found them coupling up puffing billy to the scotch express and the engine driver dissolved in tears, you would understand the kind of hopeless feeling that oppresses me every morning when i sit down to try a hundred judgment summonses. for how can they be said to be tried in the sense in which an englishman is supposed to be tried before he is deprived of his liberty. there is very little evidence, often the defendant makes no appearance and does not even send his wife to tell the tale for him. he cannot afford to leave his work and she ought not to be asked to leave her babies. the word, therefore, of the plaintiff, or, more probably, the debt collector--and many of these men, making it their business and dealing daily with the court, are far more accurate and careful than the plaintiffs themselves--this is all you have to go by. the law, as i told you, left it entirely to the taste and fancy of the judges what evidence they should receive, and though nowadays all judges honestly endeavour, i think, not to carry out the law to the full extent of its cruelty, yet naturally different men hold different views of the rights and liabilities of the poor, and so there is no sort of equality in the treatment they receive in different districts. thus we have in the working of imprisonment for debt everything that is undesirable. the liberty of the subject is at stake, but there is no right of trial by jury, such as the fraudulent bankrupt or any other misdemeanant is entitled to; the evidence on which the debtor is convicted and sent to gaol is any evidence that the judge thinks good enough, and within the limit of six weeks the imprisonment is anything that each particular judge determines. there is, of course, no appeal, and when the prisoner comes out of gaol he still owes the debt, though he cannot be imprisoned again for the same debt or instalment. the multiplicity of these proceedings is appalling. there are over a million small debt summonses issued every year and nearly four hundred thousand judgment summonses, of which about a quarter of a million are heard. what a waste of time and energy it all means. judges, registrars, solicitors, bailiffs, debt collectors, the piling up of costs and fees on to the original debt, the dragging off to gaol of an occasional debtor _pour encourager les autres_, the breaking up of some poor home, the blackmailing of friends and relations very little better off than the poor debtor himself, the squeezing of the pittance out of the bellies of the little children to keep the father out of prison--what a picture to leave on the canvas of our own generation for our grandchildren to scoff at. and the business result of it! even when the debt is paid--if it is paid--after years of waiting and hours spent coming down to the courts seeing if the money is yet paid in--or per cent. paid to a debt collector to do it for you--when all is finished, would it not have been far better if you had recognised that you had made a bad debt and stood yourself a few shillings worth of righteousness in forgiving your debtor his indebtedness? certain it is that the system is useless to, and very little used by, the respectable individual creditor. indeed, if he tries to use it, he stumbles into so many pitfalls and finds the procedure of it so troublesome and uncanny that he very often fails to stay the course, and, after a few wasted days, goes his way and leaves the debtor to go his. the best customers of the county court, indeed the only people to whom the system of imprisonment for debt is of any real service, are those traders who carry on a business which can only be carried on and made to pay by reason of the sanction of the shadow of the gaol which is of the essence of the contract. the tally-men, the moneylenders, the flash jewellery touts, the sellers of costly bibles in series, of gramophones and other luxuries of the mean streets, these are the knaves the state caters for. for these businesses are based, and soundly and commercially based, on imprisonment for debt. the game is to go forth with a lot of flash watches, persuade a workman in a public-house or elsewhere to sign a paper that he has bought one--he always says, silly fellow, that he thought he had it on approval--and when he fails to pay his instalments put him in the county court. i have known a pigeon-flying working man earning thirty-five shillings a week buy a watch priced eight pounds which had a second hand and a stop movement for timing that momentarily overcame his better sense of economy. without imprisonment for debt it would not have paid the servant of the evil one to have led him into the temptation. to these traders the county court is of real value. they issue their plaints in bundles, they take out judgment summonses in batches of thirty, fifty, or a hundred at a time, they can afford to have a skilled clerk well versed in the procedure of the court to fill up the papers, and can run the machine which a complacent state puts at their disposal with very good results to themselves. i remember a firm starting in manchester with the sale of some sort of horse medicine--good or bad is really no matter. the method of business was delightfully simple. the proprietor travelled round in herefordshire and devonshire and persuaded the farmers to try some of the horse medicine. a form was signed which was a contract of sale and a promise to pay in manchester. this gave the manchester court jurisdiction to issue the summonses, which were for sums of under two pounds. letters came complaining that no contract had been intended, that the stuff was worthless, etc., but no one turned up and judgment went by default. the success of the business was its ruin. the plaintiff, tired of filling up the forms of the court and well knowing that none of his customers would pay without process, actually had affidavits of his own ready printed, and this cynical admission of the fraudulent nature of his trade--for an honest man would not expect nearly all his customers to refuse to accept goods ordered--led to his undoing. inquiries were made, one or two farmers were induced to appear and give evidence, and his business career came to an end. i am not, of course, saying that the county court exists only for those who have the courage and effrontery to make the full use of the machine as an accessory to shady trading. but it can be demonstrated that imprisonment for debt is the mainstay of such trades as moneylending and credit drapery and all those low trades that make their profits by foisting shoddy luxuries on to working men and their wives. some time ago i made a careful examination of some judgment summonses taken consecutively. the figures were from the manchester court. i found the following were the trades represented:-- drapers general dealers jewellers grocers moneylenders doctors tailors miscellaneous traders issuing less than four summonses --- general dealers, it must be remembered, are traders in a large or small way of business who will sell furniture, drapery, clothes, cutlery, or anything you like, on the instalment system. their methods of trading are tally-men's methods. if this list be looked at, it will be seen that the general public make very little use of imprisonment for debt. the substantial shopkeeper and ratepayer is scarcely represented at all, the grocers and a few of the big general dealers being the only people who pay rates. some of these general dealers it should be remembered are limited companies having numerous agents paid by high commissions and spending large sums in advertising. their prices are apparently low, but the quality of their goods leaves much to be desired. now what worries me is, why should the state keep courts going for men of this class? the only creditor in that list for whom one can have the least sympathy is the doctor, and the national insurance act has now put him on a cash basis, so that in a list taken to-day he would not appear so often. it is clear from these figures that at a cost to the general body of taxpayers you are encouraging a bad class of parasite traders to choke the growth of thrift among the working classes. for unless you make it ruinous to the creditor for the credit to be given you will never stop it. how can a man at work hinder credit being given through the agency of the wife when the law permits it and caters for it by providing the trader who lives by it with a special debt-collecting machine without which this class of trader were impossible. i have known cases where a working man's wife was dealing with nineteen different scotch drapers. what wages can satisfy such an orgy of drapery as that? how often, too, do men and women buy watches to pawn them for drink or a day at the races? what is this but an evil and ruinous form of moneylending? and what makes these things possible among our poor people? the law siding with the knave against the fool; the saving clause for the imprisonment of poor debtors in the act of . and whereas i shall show you that bankruptcy and divorce are the luxuries of the rich, so it is only fair, i think, to allow that imprisonment for debt is a distinctive privilege that the law reserves for the poor. a man among the well-to-do classes is never imprisoned for debt; the wage-earners are practically the only people who are subject to it. the governor of a gaol reported a case to the last select commission that sat and did nothing on the subject. a labourer was sent to his custody for twenty-one days in default of payment of four shillings and costs, five and ninepence in all. how can a state for very shame prate about the extortion of moneylenders when it adds forty per cent. on to a small debt like this for costs? the man was a widower with four children, the eldest of whom was thirteen, and the youngest two or three years old. when father went to prison the children went to the workhouse. that is all part of the system. the debt was a tally-man's debt for clothes supplied to his late wife. the governor sent it as a typical case for the commission to consider. "as i believe," he wrote, "that there is an idea of having the law on imprisonment for debt amended." the good governor was, of course, entirely mistaken about that. there is no such idea, except in the heads of dreamers and visionaries like elisha and the good governor and myself, and we do not count. so his report ended in nothing, and remains on record as a typical result of the working of imprisonment for debt in a civilised european state in the early part of the year of our lord . i should like to leave the matter there as a horrible example, for so it is, but i am a man of truth--and, in fact, the poor labourer was not kept in gaol. it was afterwards discovered that the good governor, when he investigated the man's case at . a.m. on the morning after his arrest, had paid his debt for him and set him free. you remember that elisha in a similar case performed a miracle by filling several jars with oil. for myself, i think the good governor's was an even nobler deed. and when the supporters of this wretched system tell you that very few people actually go to gaol, that is, in a sense, true. there are only about six or seven thousand, say, who go to prison on a hundred and odd thousand warrants issued. the number too, is decreasing. this is not, however, to the credit of the law, but because, as i shall show, the law is not strictly administered, and also because the public conscience, what lord haldane so graphically described under the german title _sittlichkeit_, is against it. the habit of mind, custom, and the right action of good citizens do not sanction enforcing debt by imprisonment. it is only the greedy, low-down citizens who deign to use it. but the matter is lightly regarded. a few thousand poor people doing time for trumpery debts cannot, anyhow, be allowed to trouble the sleep of the middle-class voter, and what am i but an untaught knave to bring their slovenly, unhandsome corpses betwixt the wind and his nobility? it is not only the very poor who are dragged to gaol that suffer. the system is really one for blackmailing the poor man's friends and relations. you ask a debtor when he comes before you on a second instalment of a debt: "but you managed to pay the first instalment?" "yes," he replies; "but i had to borrow it from my brother-in-law, and i have not paid him back yet, and he can ill-afford to lose it." i have heard that story hundreds of times, and i know it is often a true one. bailiffs will tell you that on the road to gaol a prisoner will ask to be allowed to call at various houses, looking for an elisha, and if he cannot find anyone to work miracles nowadays he does very often find someone with five and ninepence and a kind heart. the poor are very good to one another in distress, and it is better that a brother man should be saved from gaol and restored to his home and children than that the landlord should have his next week's rent. in the bad old days a county court judge openly said that he found it better to commit to prison for six weeks rather than any shorter period, for he found that the longer the period for which he committed people to prison the shorter the term served, "because when they were committed for the whole six weeks they moved heaven and earth among their friends to get the funds to pay." friends of the system of imprisonment for debt call this "putting the screw on." i think "blackmailing" is the straighter english--but any dirty old phrase will do. and an enormous evil, the extent and results of which can only be guessed, is that the power to send a fellow citizen to gaol for debt, the power to issue or not to issue a warrant for his arrest at any moment after he is in default, places a man and his family so entirely at the mercy of his creditor that, if the creditor be a man of bad character, terrible results may follow. few of us probably have not heard stories of an evil-minded creditor using his power to seduce the virtue of a wife in her husband's absence. there is certainly truth in such stories. human nature is the same in narrower lanes than park lane. the tally-man plays on the wife's love of finery, she gets into debt, her husband knows nothing of it. as long as the wife is complacent nothing is heard of the debt. i do not say such scandals are common, but i have heard enough of such stories to know they are not fairy tales. human nature being what it is the wonder is that these dramas are not more often enacted. when the poor have their divorce courts no doubt the evidence of them will be forthcoming, meanwhile they rest mainly on the complaints of women of insults offered to them, which may be fabrications, but are not always so. what a responsibility rests on a state that maintains a system which leads to such evils. another and less terrible affair is the political influence wielded by a grocer or draper over the free and independent voter whom he can put in gaol for twenty-one days if he fails to see eye to eye with him at election times about disestablishment or tariff reform. yet this is one of the minor evils of the working of the debtors act of . in a hard-fought lancashire election which ended in a tie there was a great flutter and to-do caused by the arrest on the eve of the poll of some earnest debtor of one colour by an equally earnest creditor of another colour. it may, of course, have had nothing to do with the election--but one never knows. anyhow, it happened, and it was certainly not a desirable incident from the point of view of the losing candidate. the theoretical arguments against the abolition of imprisonment for debt are few. the chief one is that a working man would be unable to get credit in times of distress. personally i do not believe it. the argument has been used on every occasion when any legislative step has been taken to mitigate imprisonment, for always the prophecy has been: trade will suffer and individuals, for want of credit, will starve. on every occasion the facts have obstinately refused to honour the prophecy after the event. i am inclined to back history against prophecy in this matter. credit will be given to a working man of good character to a reasonable amount, but he will not be tempted, as he is to-day, to mortgage his future wages on the security of his body for every passing whim. beer is a cash business, betting is a cash business, picture palaces, railway trains, tram cars, slot machines, are all run on a cash basis, yet no one will pretend that the working man does not get as much as he wants of the goods and services of all of them. to-day the temptation, and very largely, i am sorry to say, the practice, is for a workman to make the brewer and the betting man first mortgagees of his weekly wages, whilst the draper and the grocer are too often very ordinary shareholders indeed, obtaining an irregular dividend ranking after the treasury fees of the county court. can anyone honestly say that it would not be better for the draper and the grocer to have their working-class business put on a cash basis. abolish imprisonment for debt and the grocer and draper will demand cash in advance or, at the worst, weekly bills. the workman will then be face to face with the immediate question of whether he prefers to spend his wages in drink and pleasure for himself or food and clothes for his wife and children. i have no doubt what his answer will be. the working man is of the same nature as ourselves. in the old days of general imprisonment for debt everyone lived in debt. the middle classes were tempted to live beyond their means and did so, and the micawbers of the world were always being carried off to prison, leaving their families in tears. now such a state of things is unknown. through the great private and public stores the middle classes buy for cash the best material at the cheapest prices and live within their incomes. the result in their lives is matter of social history. why is it to be supposed that any different result will be arrived at when the working classes are no longer tempted by a false system of credit? "the motive of credit," says dr. johnson, "is the hope of advantage. commerce can never be at a stop while one man wants what another can supply; and credit will never be denied whilst it is likely to be repaid with profit. he that trusts one whom he designs to sue is criminal by the act of trust: the cessation of such invidious traffic is to be desired and no reason can be given why a change of the law should impair any other. we see nation trade with nation where no payment can be compelled. mutual convenience produces mutual confidence and the merchants continue to satisfy the demands of each other though they have nothing to dread but the loss of trade." this argument was against imprisonment for debt as the worthy doctor saw it in his own time, but it is just as convincing to-day about our own or any other form of imprisonment for debt. it goes to the principle and the root of the matter and, like many another of his best sayings, is the knock-out blow on the subject. further, we have proved in our own country the beneficial effects of the abolition of imprisonment for debt, and other countries have set us the good example of doing away with it altogether. in germany they have a strict system of enforcing judgments against well-to-do debtors who seek to cheat their creditors, a class to whom we are somewhat indulgent, allowing many fraudulent persons to live at the expense of tradesmen by the simple expedient of putting goods in their wife's name. but this procedure is not available against working men, and the result is that they have to pay their way as they go along. dr. schuster, an english barrister and a doctor of laws of the university of munich, explained the german system of debt collecting to the commission of . not only did he make it clear that the german workman had, in the absence of imprisonment, acquired habits of thrift that our system discourages, but he pointed out that the insurance funds against sickness and accident, the trades unions, the co-operative societies, and charitable relief, enabled a german working man to tide over bad times without hanging a millstone of debt about his neck as he has to do in this country. in the same way in france there is no imprisonment for debt for the poor, and so far from the french admiring our debt-collecting system in england they think it so expensive and futile that french traders absolutely give up all hope of recovering small debts in england and prefer to write them off as bad. and, indeed, i have more than a suspicion that if one could get an accurate financial history of the collection of a forty shillings' debt in the county court by means of imprisonment for debt, one would find that, when treasury fees, solicitor's costs, and creditor's time wasted had been duly paid for, there was very little balance to credit in the plaintiff's ledger. the more one sees of the system the more is one convinced that it is only serviceable to those creditors who use it in a wholesale manner to recover undesirable debts. and though in theory i can find no serious argument against the abolition of imprisonment for debt, yet there is one practical difficulty in carrying it out which will have to be faced. the county court registrars in the small courts are unfortunately paid by fees on the number of plaints issued. a moneylender or tally-man who cleans up his books once a year and brings into court a few hundred plaints automatically raises the salary of the registrar. if this debt-collecting business is swept away, compensation for the disturbance of these salaries that have been calculated on this basis for many years must certainly be made. probably it is this real practical objection that stands between the debtor and freedom. i am not alone in thinking that the time is fast coming when the inconvenience of having as the registrar of a court a solicitor in private practice paid by fees on the number of plaints will be so fully recognised that the country will demand a sweeping alteration in the system. the abolition of imprisonment for debt will give the courts time to entertain jurisdiction for divorce and other matters where the poor are entitled to the same legal favour as the rich. when these reforms are made it will be found necessary, i believe, that the registrar of each court or group of courts should be a whole-time permanent official. one other point remains to be mentioned. it is commonly said of those who desire to abolish imprisonment for debt that they have a lower sense of honesty than their opponents, that their views tend to encourage the man who runs into debt and will not pay when he can. for my part i care not how strict the law is made against dishonesty and debt resultant from dishonesty, but let the imprisonment be imprisonment for dishonesty and not for debt. if the debtor has acted criminally, let him be tried in a criminal court and punished for dishonesty. in the old days a county court judge had powers to imprison for dishonesty, now he has only power to imprison for debt. it is because i believe that the abolition of imprisonment for debt will improve the character of our citizens, as it improved the character of the athenian citizens more than two thousand years ago, that i have put in so many hours overtime in the advocacy of its abolition. but whilst i would abolish imprisonment and should like to see the english workman paying his way like his german brother, whilst i am eager to see the poorer classes freed from the misery that debt and extravagance brings upon them to-day, yet no one, i hope, recognises more clearly than i do the sacred duty of a debtor to pay an honest debt. every penny that he can save after his first duties of maintenance of wife and family should be devoted towards the repayment of debts. but this is a personal obligation on a man, like speaking the truth, or treating mankind with courtesy, and, in a word, is only a branch of the golden rule of doing to others as you would be done by. the breach of this obligation ought not, as it seems to me, to be treated nowadays as more than a case of a flagrant breach of good manners, and i would rather imprison a man who forgets to shut a railway carriage door when he gets out on a winter night than a man who omits to pay me the five shillings he borrowed yesterday. both are ill-mannered fellows and must be dealt with socially, but not, i think, by imprisonment. debt, except from misfortune, is really "worse form" than drunkenness. when that is generally understood no debtors act will be necessary. and the right feeling of a respectable debtor towards his creditor seems to me stated in very apt and beautiful words by old jeremy taylor in one of his "prayers relating to justice," in which he sets out the correct petition to be made thus: "and next enable me to pay my duty to all my friends, and my debts to all my creditors, that none be made miserable or lessened in his estate by his kindness to me, or traffic with me. forgive me all those sins and irregular actions by which i entered into debt further than my necessity required, or by which such necessity was brought upon me; but let them not suffer by occasion of my sin." and if all debtors were moved by the aspirations included in this noble prayer, and if all creditors refused credit to poor folk unless they believed them to be men of such a character that the ideas of the petition were really living in their hearts, then, i think, there would be no need of imprisonment for debt or for county court judges either. indeed, the millennium would be at hand. but short of that great day, we are surely entitled to act as though the majority of mankind preferred right action to wrong action and not to encourage a class of debtors and creditors whose _nexus_ is force and imprisonment rather than friendship and goodwill. the working man should be able to say with piers plowman: "though i should die to-day, my debts are paid," and the law should help him to that end. chapter v workmen's compensation your plea is good; but still i say, beware! laws are explained by man--so have a care. pope: "first satire of second book of horace." an interesting volume might be written about historical litigants and their deeds of heroism. there was the dour coggs who let in his friend bernard over the brandy cask, there was the astute scott who never paid manby, the draper, for his wife's dresses, there was wigglesworth who built himself an everlasting name in the hibaldstow trespass case, and the hero of our own time, dickson, who actually bested a railway company in the matter of dutch oven, the tail-less hound--these and many others are names enshrined in our dusty tomes of law, but if you would read them for mere delight, has not sir frederick pollock done our leading cases into the most melodious verse. if i were a bencher i would like to promote a pageant of these grand old litigants in honour of their service to the english law. i think my favourite among them all is little priestley, the butcher's boy. you will find his simple story in the third volume of "meeson and welsby." how many know that it was at the lincoln summer assizes of that the brave butcher's boy began it, and started a train of legal thought reaching out to the workmen's compensation system of to-day? it was priestley's duty to deliver meat, and one day fowler, his master, sent him out with such an over-load of beef and mutton that the cart broke down and poor priestley broke his thigh. priestley brought an action against his master, and the jury gave him a verdict for one hundred pounds, but on appeal the judges would not have it, and so poor priestley never got it. a servant, they said, is not bound to risk his safety in the service of his master; he may decline any service where he apprehends injury to himself. lord abinger, c.b., who presided in the appeal court, admitted that there were no precedents either for or against such an action, but he was hard put to it to explain in legal terms why the little butcher's boy, who was certainly a brave explorer into legal hinterlands, was not to be allowed to peg out the claim the jury had awarded him. his lordship was driven back to "general principles." the most learned lawyer of our day, the late mr. danckwerts, once said to me when i was a very young man at the bar and talked glibly in consultation about the "broad grounds of truth and justice": "if we have nothing better to rest our case on than that, god help us in the court of appeal." he then proceeded to show me some cases on the subject which my ignorance and inexperience had failed to discover. and it was not that the great man was not a lover of truth and justice, but that he knew that law meant, not what he and i and our client thought to be truth and justice, but what all generations of calm thinking men outside the dispute ought to think to be truth and justice, and that was to be found in the decisions in similar cases which he knew as no other lawyer ever did and about which i showed the common ignorance of my contemporaries. lord abinger, then, having no cases to guide him, played a lone hand, and naturally played it from the point of view of the man who held the cards. if, he said, the master be liable to the servant in an action of this kind the principle of the liability would carry us to an alarming extent. for instance, if a master put a servant into a damp bed or a crazy bedstead or gave him bad meat to eat he might be liable in damages to his servant. "the inconvenience, not to say the absurdity, of these consequences," afforded a sufficient argument against poor priestley and all other servants in like case. priestley broke his leg and lost his case, and legal history does not record his future career. but, though lord abinger was against him, he might fairly have said in the phrase of a celebrated and eloquent manchester surgeon that, "this day he had lighted a candle which would bring forth good fruit." several minor heroes made legal efforts to get behind this judgment, but the judges were too many for them. it was strongly endeavoured to make masters liable to their servants for injury caused by the negligence of a fellow servant, but the judges declared that, when a servant enters a service he contemplates all the ordinary risks of his work, including the negligence of his fellow servants, and that allowance is made for this by the master in fixing his wages. this "doctrine of common employment," as it was called, was, of course, largely a figment of judicial imagination, and it set back, or rather kept back, the hour of industrial reform for more than one generation. there never really was a law of that kind. it is what is rightly called judge-made law. the judges said that it was "inconvenient" and "absurd" for masters to be responsible for negligence of their servants. so, of course, it was--to the masters and in that finished the matter. thus it came about that in a railway accident, if it was caused, let us say, through the negligence of the company's signalman, every ordinary passenger got compensation out of the company, but the engine driver, the stoker, the guard, and their widows and orphans got nothing. note, however, that if the signalman had belonged to another company it would have been quite otherwise. in the old days when druids sat under oak trees i daresay judge-made law was all very well, though no doubt the personal prejudices of the druids were manifest in their decisions. but since the days of the ten commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-class article for ordering the affairs of a modern community. no doubt the judges of , being men connected with the upper middle classes of the day, could not conceive how civilisation and social order could exist side by side with a wicked system whereby a master had to compensate a workman injured in his service. the thing was as incomprehensible to the judicial mind of that date as the fifth proposition of euclid is to many a third-form schoolboy to-day. some of our judges are still in the third form in their ideas of sociology. that is one of the dangers of judge-made law. it is bound to put the stamp of old-fashioned class prejudice on its judgments. if the judges had been labour leaders they would have discovered an implied contract for the master to pay compensation with equal complacency. the fact is that _natural justice_ is merely justice according to the length of the judge's foot, as the common saying is. and the length of a judicial foot will depend on the evolution of the judge. that is to say, according as he and his ancestors have rested their feet cramped in pinched shoes under the mahogany of the wealthy or tramped barefoot along the highway in the freedom of poverty, so will a judge's principles of natural justice favour the rich or the poor. we cannot get away from the fact that our judges make a great deal of law. the idea that a law is somewhere in existence and that the judges merely adopt it will not, i think, hold good for a moment. it is, indeed, a legal fiction. as a great american jurist, professor john chipman gray, of harvard, asks: "what was the law in the time of richard coeur de lion on the liability of a telegraph company to the persons to whom a message was sent?" the answer to this question is obvious. when one reads from time to time of decisions of the courts that are upheld for a generation and finally overruled it is against the truth to speak of a pre-existing code of laws which the judges merely administer and expound. and the reason this is not openly acknowledged and that this mysterious bogey of pre-existent law is worshipped in our courts of justice is, as professor gray tells us, that there is an "unwillingness to recognise the fact that the courts, with the consent of the state, have been constantly in the practice of applying in the decision of controversies, rules which were not in existence and were therefore not knowable by the parties when the causes of controversy occurred. it is the unwillingness to face the certain fact that courts are constantly making _ex post facto_ law." this is why we maintain the fiction of the continuous pre-existence of law. the fear among those in authority seems to be that it would be unwise to openly recognise the real extent of the judicial power, as it would be unpopular and widely rebelled against, and that under the soothing fiction of the existence of an imaginary body of law and by the constant humble assertion of the judges, that they are not there to make laws, but only to administer them, the man in the street is deceived for his own good. for myself i have grave doubts whether this juggling with facts is to anybody's benefit. if it were recognised that in giving decisions at common law, and also in the interpretation of statutes, judges were not only declarers of existing law but makers of new law, then it would be possible to discuss and perhaps control or direct the law-making power of latter-day judges which from time to time manifests itself in unbalanced social judgments. when the telephone was invented by alexander graham bell, the postmaster-general of the day claimed that it was a species of telegraph within the meaning of the telegraph act, . scientifically, of course, it was no such thing. economically and in the interests of the community it was essential that the telephone should not be handed over to a public department predetermined not to give it a fair chance of development. lord kelvin and others pointed out what was the right policy in the matter, and, if the affair had gone to a parliamentary commission, his words would have had weight and a telephone development act might have brought about excellent results. in that case the future of the telephone would have been settled by parliamentary law. it was, in fact, settled by mr. justice stephen in , who declared that the telephone was a telegraph within the meaning of the telegraph acts, , , although the telephone was not invented or contemplated in . in this way its proper development in this country was arrested for more than a generation. this is a remarkable instance of judge-made law. why should an individual citizen just as unversed in science and business as the man in the street have the right to enact what should or should not be done with an entirely new invention which was not in existence when the statute which he pretends to apply was enacted. if the judges decided that an aeroplane plying for hire was a hackney carriage it would in law remain liable to all the statutory hackneydom of carriages until parliament otherwise ordained. is it not becoming time when judges, instead of making new and often reckless law, should be satisfied with declaring that in the case before them there is no law to their knowledge, and it is for the legislature to consider and enact some. if this had been mr. justice stephen's decision in _the attorney-general v. the edison telephone co. of london, ltd._, how much better for all of us to-day! again, in the workmen's compensation act, parliament, it is known, intended and desired to express many things which the judicial interpretations of the act have altered and amended out of all recognition. it is scarcely true that these interpretations are all of them due to the verbal inaccuracy of the parliamentary draftsman, because one often finds the court of appeal taking one view of the meaning of the words and the house of lords another. the real parliamentary object of the act is now very difficult to understand and ascertain from the language used in the judgments interpreting it. if law were really a science and the interpretations of statutes by judges merely an ascertaining of parliamentary intention, one would not expect to find such different interpretations put upon the same words and the parliamentary intention so openly ignored. in america grave popular discontent has arisen over the law-making propensities of judges and their bold refusal to carry out the intentions of the legislature. we have no such widespread feeling in this country, nor are we likely to have, but, all the same, if we were to recognise the law-making power of our judges and openly discuss it and endeavour to define and limit it, there would be less fear in the future of a rupture between the people and the judges when futurist laws of far-reaching social reform come to be administered by the courts. the lamentable failure of consistent interpretations of the compensation acts is not calculated to raise the judiciary in the affections and respect of the working classes. this matter is really one of grave importance, for though in a sense and up to a point, whatever a judge decrees is for the time the law--that time may only be short. in the end the law must express the wills of those who rule society. professor vinogradoff well says, in that excellent little treatise "common sense in law," we ought to "realise that law has to be considered not merely from the point of view of its enforcement by the courts: it depends ultimately on _recognition_." when, then, we openly confess that our judges are making new law every day we shall have to impress on them--especially in social matters--that the new law they make should be, like new parliamentary law, founded on the best aspirations of modern hopes and thoughts of the future life of our people, rather than on the musty creeds and traditions in which the individual human beings who are judges have unfortunately for the most part been educated. judge-made law, like any other law, can only be of value to the community by popular recognition of its wisdom. the more the judges can keep to the real administration and interpretation of laws already existing the better for everyone, but new points of difference and a new social order of things naturally bring before the judges cases which can only be decided by their making new laws. when it is freely acknowledged that this is so, not only the community but the judges themselves will be called upon to consider and decide the ideals and principles by which they ought to be actuated in their capacity of lawgivers. the law that was laid down to meet the case of the butcher and his boy became the law under which every railway servant, every miner, every mechanic, every navvy--the huge industrial army working under impersonal boards and committees of limited liability companies--risked his life in his daily work at his own expense. from to men were killed and injured by the thousands in industrial work and there were no pensions for the widows and orphans, no compensation for the wounded. moreover, such a system discouraged employers from spending money on safety devices. no doubt many good and wise employers did a great deal to safeguard their men; equally no doubt, servants, being but human, were often injured and killed by their own carelessness and recklessness. the deplorable part of it was that the law had taken up an attitude against the poor in this matter and, as things stood, it was to no company's interest to spend their money and decrease their dividends by safeguarding the lives and limbs of their servants. this is still so in america, where on the railroads one man is killed for every two hundred and five employed and one is injured in every nine. "war is safe compared to railroading in this country," is the comment of mr. gilbert roe, the american jurist. of course, at all times much was done by private charity of employers and others to help those who fell in the industrial fight. in great colliery, shipping, or railway disasters subscriptions were made, no doubt, just as they are to-day, but the little obscure cases that mount up to many thousands in the annual statistics of the industrial killed and wounded were left to chance and charity. the employers' liability act of gave certain workmen limited rights of action in special cases. it was a prudent conservative measure brought in by a liberal government, and, of course, it was predicted that it would ruin every industry in the country. it must have cost industry a big bill in lawyer's fees. every case under the act was fiercely litigated, and might go from the county court through two courts of appeal to the house of lords. i do not like to write ill of the poor statute. it is not actually dead, but moribund, and in the years gone by, when we were both young fellows i had many a good outing at the old fellow's expense, and he did me very well indeed. therefore, of the employers' liability act of i will say no more than the man in the gallery did about the bride when the minister asked, "who giveth this woman away?" "i could, guv'nor, but i ain't going to." but when we come to the workmen's compensation acts that is another matter altogether. the county court judges have never received a penny for the extra work thrust on them by these acts, and therefore there can be no indelicacy or indiscretion in speaking one's thoughts plainly about the system. and of the idea, and to a great extent of the achievement, of mr. chamberlain's scheme--for to him must the praise and honour be given for bringing it about--one cannot speak too highly. the theory at the bottom of it is exactly the opposite of the theory at the bottom of the judges' decision against poor priestley. it is best put in these memorable words of mr. asquith: "_when a person, on his own responsibility and for his own profit, sets in motion agencies which create risks for others, he ought to be civilly responsible for his own acts._" that is the magna charta of workmen's compensation. it cannot be better stated. and the promises and intentions of the new act were splendid. for sir matthew white ridley said that the act would prevent uncertainty, and the parties would know what their rights were, and that it provided a simple and inexpensive remedy and would prevent litigation. mr. chamberlain pointed out that up to then, in , only per cent. of accidents were dealt with, but that he hoped that now the other per cent. were to be brought in. his plan was so simple. an injured man in certain trades had only to ask for compensation, and receive it according to a fixed standard. state-paid doctors and arbitrators were to settle the details of the man's injuries and the amount to be paid to him. in his own words, "we wish to avoid bringing in again under another name the old principle of contributory negligence." a man was to receive compensation when injured in the service, even if he himself had been negligent. i often think if mr. chamberlain had had health and strength to see the workmen's compensation business properly through he would have dealt with the lawyers who mangled his excellent scheme much as theseus did with procrustes when he met him on the banks of the cephisus. procrustes, you will remember, was a robber of attica with a quaint sense of humour and a bedstead. if a traveller asked his hospitality he invited him to the bed, to which he tied him. if his legs were too long he cut them off, and if his legs were too short he pulled them out to the right length. procrustes had the calm judicial mind of the court of appeal, and within his narrow limits knew exactly what he wanted to do and how to do it. but it was rough on the traveller. and it is rough on a humane, simple, wise scheme for the benefit of the poor on leaving the hands of that great reformer and statesman, mr. chamberlain, to find that it is being martyred by the procrustes of the law so that it may fit his narrow bed of justice. i think some of the decisions of the court of appeal would have been too many for mr. chamberlain, and he would have severed their connection with the workmen's compensation business as theseus severed procrustes' connection with the bedstead business. it is certainly not putting it too strongly to say that the judicial body, speaking generally, did not love the workmen's compensation act. the idea at the base of it that a man should compensate another outside the scope of contract or wrong was to them out of harmony with the english law. there never was a more honest or single-hearted judge than a. l. smith, who was master of the rolls when the earliest cases came up for decision in the court of appeal. the social creed of "a. l." was something between that of the church catechism and the _sporting times_. he was beloved by rich and poor. his ideal world was one where a good-natured aristocracy would confer kindnesses on a well-mannered democracy, who should receive them in a jovial and grateful spirit. there is no doubt that he endeavoured, as did all the judges of the court of appeal, to rightly interpret its provisions; there is equally no doubt that the spirit of many of the interpretations placed upon the draftman's words did not give effect to the intentions of mr. chamberlain and those who had passed the act. this one can only trace to the habits of mind and social creeds of judges like "a. l." who were wholly out of touch with the beliefs and hopes of industrial democracy. the act of parliament ought not to have been sent to the court of appeal at all. it was not founded on any legal principle, it was an insurance scheme that wanted business men to work it, and, as mr. chamberlain had foreseen, lawyers and litigation could in no way assist its working. it cannot be gainsaid that the legal history of the workmen's compensation act is not a thing for lawyers to boast about. no one has a greater respect for the court of appeal--and, indeed, for all my spiritual, legal, and worldly pastors and masters--than i have. humility towards those who are called to any honour amongst us is my foible. i admit i have but a poor stomach for law and that i often find the learned judgments of appeal courts a little indigestible, but i remember the irishman sampling the twopenny racecourse pies, and piously murmur to myself, "glory be to god, but they're dam weighty." no one would deny the learning, subtlety and weight of the judgments in the court of appeal on the workmen's compensation act, but, speaking as a common arbitrator who has to work the act at first hand and make it human food for shattered men and widows and orphans, they have not tended to make my task easier, they have not simplified and assisted the scheme as a compensation scheme, and they have not been in harmony with the spoken intentions of the author of the scheme. this, i think, to be due, in the first place, no doubt to the imperfections of the act, in the second, to the fact that the appeals come before learned judges who have never administered the act in cases of first instance and have had no practical experience of its working, and, in the third place, to the fact that to much of the higher judicial intellect the theory of workmen's compensation is in itself unscientific, and therefore repugnant. nearly all the cases, and there are, i regret to say, many, where the court of appeal has overruled the county court, and the county court judgment has ultimately been restored by the house of lords, the error has been in the court of appeal striving to find a reason to hinder the payment of compensation, rather than searching for the principle which brought an admitted injury within the scheme that parliament has made to compensate the injured. after all, the act was one for the compensation of workmen, and every case of injury that is found not to be provided for is a blot on the scheme. the expense of all these appeals, is of course, a terrible burden, and to a workman without a trade union behind him would be impossible. great confusion has been caused by having to work certain matters for considerable periods under decisions of the court of appeal that have afterwards had to be dealt with differently by decisions in the house of lords. very likely if there were a further appeal to a house of archangels the court of appeal would be upheld. but to the injured man in the works and the arbitrator waiting to award him his few shillings a week what could be more pitiable and exasperating than the delay and expense that the present method of working the act entails? one solid reason why the appeals in workmen's compensation cases should be removed from the court of appeal is that they cannot be heard within a reasonable time. the _law journal_ of june th, , states that there are seventy-three workmen compensation appeals waiting to be heard, of which no less than ten were entered in . it would be interesting to know how the appellants manage in the interim. the act itself was difficult enough no doubt to make into a good working scheme by those who desired to do it; the hundredweights of handsomely published and learnedly edited reported decisions as to what it really means have made it hopelessly impossible to comprehend and increasingly difficult to administer. to sum up the position of the act to-day, with its myriad encircling decided cases, one can only say, with the immortal sergeant arabin, that it "bristles with pitfalls as an egg is full of meat." when you have an act of parliament that in at least a dozen reported cases is solemnly decided to mean _x_ in the court of appeal and _y_ in the house of lords, _x_ representing "against the workman" and _y_ "for the workman," what does the man in the street think about it? and yet i cannot believe there is so much difficulty about construing the act if the courts would all steer by those excellent sailing directions of lord halsbury and lord davey. lord halsbury said: "the broad proposition, of course, was that the legislature intended that there should be compensation given to every workman in certain trades when an injury happened to him in the course of his employment." lord davey said: "i entirely agree with what has been said by my noble and learned friend on the woolsack that you ought to construe this act so as, as far as possible, to give effect to the primary provisions of it." now the primary provision of the act was to compensate workmen for injuries, not to leave them uncompensated, and to do the business promptly and simply. we want more of the spirit of the act and less of the letter, and a great deal fewer forms and orders and rules. in a word, more business and less procedure. as a dear old lady said to me when, after several efforts to set her affairs right, the registrar and myself had at last got her to fill up the papers necessary, as things are now, to get her case through: "i tell you candidly, judge, all this filling up of papers and signing things has been more worry to me than the loss of my old man." and i'm sure she loved her old man--so what must she have thought of us and our act of parliament? there may be some who think that it is almost indelicate to discuss such a subject as the possible fallibility of the higher judiciary. i agree that it is a subject that can only be treated by one imbued with that reverence for existing institutions that so happily results from a sane middle-class education. moreover, we cannot shut our ears to the sound of much discussion about what is called judicial bias by the man in the street. in america the sounds are louder and clearer than they are in england, and the problem is so much the simpler to understand--especially for the onlooker. there are great lessons for us to study if we would avoid the troubles which the american judges have been assiduously looking for and are now successfully finding. two interesting books written from different standpoints, gilbert e. roe's "our judicial oligarchy," , and frederick n. judson's "the judiciary and the people," , show the eagerness with which lawyers who have human interests outside the daily problems of their profession are discussing the great questions of the law and the poor. the judiciary in america is differently chosen from that in this country and in some ways it has greater powers. its instinct and bias are similar to those of our own judges, but it has not been so successful in instilling into the minds of the citizens a belief in its infallible honesty of purpose. there is no doubt that in america there is a growing distrust of the integrity of the courts and a feeling that the judges in their sympathies and views are on the side of wealth and against the working man. much of this arises, no doubt, from circumstances which do not obtain here. but that the middle-class instinct exists on the american bench even more strongly than it does here can be seen in their history of workmen's compensation which to an english lawyer is strange and confused reading. the common law of america in this matter is the same as the common law of england. the failure of priestley, the lincoln butcher boy, settled the law of america as completely as it did the law of this country. and though different legislatures have endeavoured in different ways to remedy the grievances of employers, the judges have made this not only difficult, but in some cases impossible. in congress, with the approval of the president, passed a carefully and well-considered "employers' liability act" relating to common carriers in the district of columbia. when it came before the supreme court of the united states this law was held to be unconstitutional by five judges as against four. to my mind there can be no comparison between the influence and common-sense of the judgments. the counting of heads was against the statute, but the expression of the contents of the heads showed a resultant force of brain power in its favour. the chief argument of the majority was that some of the clauses of the statute were "novel and even shocking," just as lord abinger found poor priestley's contention inconvenient and absurd. later on, in , the court of appeal found the workmen's compensation legislation of new york to be unconstitutional, because it placed a "burden upon the employer without any compensatory benefit." in america the judges have been able, for reasons that would certainly have appealed to the late master of the rolls and many of his colleagues, to cancel popular legislation. this has roused a direct conflict in america on the subject of the law and the poor, and there is a growing feeling that the courts are not discharging their duty in relation to social and industrial justice. the recall of decisions and the recall of judges are popular cries, and there is much public discussion of such themes. these things are of interest to us because our laws and our poor come from the same stock and, though we pride ourselves, and i think rightly, on the superiority of our legal machine, yet it is not so perfect that we may not learn something from the troubles and difficulties of our neighbours. if the working class should, even on false premises, come to a conclusion that they could not find justice in our courts owing to judicial social myopia, it would be a sad day for everybody. for my part, though i quite recognise that there was a bias in the late lord abinger, for instance, against poor priestley's way of looking at things, i do not think that anyone believed then or believes now that he gave his judgment in any unrighteous class spirit adversely to the rights of priestley and mankind. on the contrary, i think he did his best. he expressed what he and his fellows believed to be the law. this idea of "bias" in judges is well worth a little consideration. we have not the same problem that america has about our judiciary and, let us hope, we never may have, but no one who knows the working man can fail to have observed that he has been, as he would say, colourably--i modify the adverb--"colourably fed up" with several recent judicial decisions. it has certainly become too common a thing in england to grumble about our judges, and to say--especially when the costs are taxed and the bill is delivered--that the judge was biassed. but let us remember that it is our birthright to grumble. to grumble, as cox pointed out to mrs. bouncer, is a verb neuter meaning to complain without a cause. in england we grumble at all our best beloved--our wife, our children, our weather, our constitution, the three-year-old that fails to carry our money to the winning-post, and the stewards who disqualify him when he does. and when we grumble at our judges and say there is bias on the bench it is only our little way. for what is "bias"? i have never been able to make out why the word should have a sinister meaning. bias--as all good bowlers know--is that mysterious weight within a good "wood" or bowl whereby the skilful is enabled to direct it by an arc-like course towards adjacency of "the mark," which is the historic name of the jack. in lancashire, where the game of bowls is played, as it should be, upon a crown green--and not, as in the south, on a tame, flat rink--the bias and the use of the bias make the glory of the green. by means of bias scientifically used we may reach "the mark" by the circuitous "round peg," or play straight up against "the watershed," as i once heard a geologist among bowlers describe the slope of the green. what grave problems have to be judicially decided on the green as to the use of "thumb" or "finger" bias before the "wood" is delivered! what anxiety is pictured on the face of the bowler! what contortions of his body are involuntarily indulged in as the bowl speeds on its way and does--or more often does not--carry out the intentions of the bowler! and therein, i think, lies the secret of the evil meaning we have given to the word "bias." we see our "wood" careering across the green and hear it fall with a dull thud on the path beyond, and instead of blaming ourselves we blame the bias. thus, owing to the alarming prevalence of duffers on the green and in the greater world surrounding it, the word "bias" has come to be regarded as a tendency that leads astray rather than a tendency that keeps straight and is up to "the mark." and when i am asked whether there is bias on the english bench, i cheerfully reply that i hope and believe there is. i have met with unbiassed bowls, and very poor "woods" they were. i have met with men almost devoid of bias, and i never found that they were continuously up to the mark. bias is as essential as character to both "woods" and men. as far as i remember i have never met a judge without "bias" and seldom seen one whose bias was not fairly under control. we want bias on the bench because we like to feel that the men who decide our disputes are not mere automatic legal slot machines, but human beings, with likes and dislikes similar to ours, trained to hear and determine our disputes and honestly endeavouring to decide the cases without fear or favour. when judicial bias carries the judgment beyond "the mark" we grieve not that the bias is there but that it has been injudiciously used. from the true bowler's point of view there is only one bias, a bias towards things, but in our vulgar misuse of language we speak of a bias against things. and if that is to be allowed no one would grudge a poor working judge his right to a bias against fraud and dishonesty, greed and oppression. such a bias should indeed be instinct in him in the same way as a golfer has a bias against bunkers, a terrier against rats, and a mongoose against snakes. but even a good bias requires strict and cunning control. i remember a very excellent and sage judge--in most matters a cool fountain of deliberate justice--whose bias towards purity and a high ideal of man's conduct towards woman was so little under control that in cases, and especially criminal cases relating to these affairs, it was very difficult for him to conduct the case with justice to the accused. his bias against the sin over-rode his judgment of the crime. the same bias is more often found in juries. i remember a case in which my father, serjeant parry, defended a man named smethurst, charged with the murder of his wife. he was admittedly guilty of bigamy, and so incensed were the jury with his misconduct that their bias carried them right by the mark of the medical testimony and landed them in the ditch of an unjust verdict of murder. the case was taken up by john bright, one whose bias against all evil was as strong as any man's. the criminal was ultimately punished only for the crime he had committed. no one will contend that a bias against immorality is not a good bias and a good asset in the character of a judge and a man. but the best bias in the world will not aid you in attaining "the mark" unless it is directed by body and brain working together in harmony. and if it be asked if there are judges on the bench who are biassed towards or against capital or labour, railway companies, motor-buses, piano organs, scotch drapers, moneylenders or other products of modern life, i must answer in all honesty that this is very probably the case. a fact that seems to be lost sight of in this insistence on the immaculate judge is that, after all, he is like other human beings, a forked radish with a fantastically carved head quaintly decorated by a horse-hair wig generously paid for by himself out of his slender salary. he is just as much the product of the age as one of yourselves. he has toddled about in the same nursery, learned in the same school, played at the same university and lived in the same society as the rest of the middle classes. why should you expect in him a super-instinct towards futurist sociology? in the old days when everyone believed in witchcraft the judges believed in witchcraft. chief justice hale solemnly laid it down as law that there must be such things as witches since there were laws made against witches, and it was not conceivable that laws should be made against that which did not exist. it was not, indeed, until the time of george ii. that it ceased to be an offence to endeavour to raise the devil by magic words and oblige him to execute your commands. nowadays even the devil himself is in danger of disestablishment, though my conservative views would lead me to maintain that he is still entitled to judicial notice, and i am inclined to the opinion that he is not yet surplusage in an indictment for perjury. in every age your judge will be tinged with the prejudices of his time and his class, and i cannot see how you can expect to grow middle-class judges in hot-beds of middle-class prejudices without the natural formation of a certain amount of middle-class bias in the thickness of their middle-class wood. nor do i think among englishmen anyone resents such bias as your judges display in their everyday life. mr. justice grantham, like "a. l.," was undoubtedly a man of strong conservative bias and showed it openly enough upon the bench, but he was adored on a working-class circuit, and no man was better beloved by all who practised or appeared before him, and no judge strove more earnestly to do justice. the fact is, bias is recognised among englishmen as one of the sporting attributes of man and is as necessary to the instruments with which we play the game of life as to the "woods" in our old-world game upon the green. if there is any bias on the bench that is popularly and justly disliked it is a bias towards formalism and technicalities. our law of old got a bad name for that, and in quiet places our reputation still sticks to us. there are still men and women in the english country-side who think there is some sort of disgrace attached to a law court. in the quiet county courts of kent and sussex a defendant often complains in an aggrieved tone at being brought to a "place of this kind." it argues to his mind a want of delicacy in the plaintiff, and he states his case without the least hope that it will be decided on the merits. i remember an amusing expression of this feeling. a defendant, a cheery, round, pippin-faced jobmaster with a treble voice was sued by a farmer for keep of his horses in the farmers' field for several week-ends. "well, i'll tell you about it," he piped diffidently in answer to my request for information, "for i might as well now i'm here. it was this way. i met sandy in crown lane. i always call him sandy--you must excuse me if i'm wrong, i've never been in a place like this before--and sandy says to me, 'jim, why don't you bring your 'orses down to my field for sunday like you used to do last year?' well, i brought my 'orses down on sunday and i did that for some two or three months and then i took them away, and i meets sandy and he says, 'jim, why have you taken your 'orses away?' and i says, 'because there ain't no food on your field for my 'orses.' he says to me, 'there's more food on my field than your 'orses is used to.' i says, 'sandy, you know there's no feed in your field for my 'orses.' he says to me, 'if there ain't no feed in my field for your 'orses there's plenty of recreation for them.' 'recreation?' i says; 'my 'orses don't want no recreation, they gets recreation in the bus through the week.' with that sandy went his way and we never exchanged another word for three year, and now he brings me to this 'ere place for sixteen shillings and i've never been in a place like this before." i explained to the defendant that the county court was really a place intended for an affair of this nature and thoroughly equipped to see it through, but he was not satisfied. "what right has he to bring me here?" he complained. "i never promised to pay him anything." "was there no agreement between you?" i asked. "well, we did agree about one thing." "and what was that?" i asked hopefully. "we agreed that if we couldn't settle what i ought to pay," he replied, eyeing me with doubt and disapprobation, "that we should leave it to a respectable man." now what he really wanted was a judge full of bucolic bias and well acquainted with vaccine and equine learning. it was only i fancy in a veterinary sense that he considered that i was not respectable. and nowadays when we open the courts to new applicants, and turn over great schemes of workmen's compensation to judges to deal with, we want judges to work them who are in touch with the needs and lives of the working class, not necessarily folk who want to exalt the poor on to unreal pedestals and clothe them with impossible virtues, but people who know how near their faults and virtues are to those of the rest of mankind. and when we find american judges deciding that no system of workmen's compensation is to be allowed to become law, and when we note that the most learned judges of our own appeal courts differ constantly as to the meaning of the words of our own scheme, thereby causing delay, confusion and expense, it raises a question in one's mind as to whether some far less exalted court of appeal--say, three county court judges who have to try these cases face to face with the men and women who are interested in their decision--would not better meet the wants of the community in carrying out the scheme and come nearer to the ideal of "the respectable man." a bishop has once been a curate, but a lord justice of appeal has never been a county court judge. the workmen's compensation act is a practical business machine of a complicated character, and it is scarcely a sensible thing that the men who have to keep it going should work under the theoretical direction of men who have never seen it working. and there is another reason why the appeals in these cases should be removed from the court of appeal, and that is a very practical one--the court is over-crowded and has no time to try them. even now as i write there are cases, many of them perhaps merely questions of the payment of a few shillings a week, which have been waiting for many months to be reached. from the point of view of everyone concerned, except the lawyer, there is no health in this litigation. in so far as the administration of the workmen's compensation act has been a success it has been because insurance companies and employers and trade unions and workmen have either kept out of court altogether or, when they have got there, have assisted the registrars and judges of the county court to work the thing on business lines and have resisted in a large measure the temptation in the uncertainty of the decisions to speculative litigation. there is still enough english common-sense left among us to muddle through most things, but the workmen's compensation act, as interpreted in the court of appeal, has tried it fairly high. chapter vi bankruptcy "in a lofty room, ill lighted and worse ventilated, situate in portugal street, lincoln's inn fields, there sit nearly the whole year round, one, two, three or four gentlemen in wigs, as the case may be, with little writing desks before them, constructed after the fashion of those used by the judges of the land, barring the french polish. there is a box of barristers on their right hand; there is an enclosure of insolvent debtors on their left; and there is an inclined plane of most especially dirty faces in their front. these gentlemen are the commissioners of the insolvent court, and the place in which they sit is the insolvent court itself." charles dickens: "pickwick." chap. xliii. a bankrupt is not a person who breaks the bank, as is popularly supposed. on the contrary, he is, or ought to be, by his derivation a person whose bank is broken by others. a learned professor tells me that the florentines of old had some sort of ceremony in which they marched to their insolvent neighbour's office and broke up his bank, or bench, or money table to show the world that he was no longer commercially sound. until recently in english law bankruptcy was merely a trader's remedy designed to protect an unfortunate business man from life-long imprisonment for debt resulting from unfortunate business ventures. latterly the privilege of bankruptcy has been extended to every citizen that has a debt of fifty pounds and ten pounds to pay the fees necessary to filing his petition. but, in order to become insolvent, it is a condition precedent that at some time or another one should have been solvent. and one difficulty about applying any form of bankruptcy laws to the poor is that they are too often born insolvent, live insolvent, and die insolvent. there must be many fellow citizens in this country of ours who never knew what it was for twelve months of their life to have a living wage and be out of debt. as long as we have imprisonment for debt credit of some kind and on some terms ruinous or otherwise is always obtainable. at the present, bankruptcy is almost regarded as a sign of grace, a condition of honourable martyrdom into which the careless and good-natured ones of the world find themselves after a short struggle in the slough of solvency. to the rich it is a very present help in time of trouble, but the poor, never having been sufficiently solvent, can never make use of its aid. when the worker has a living wage guaranteed him by the state it will be necessary to make him a new bankruptcy law so that the living wage cannot be attached and converted to the use of the shylocks of this world. the law protects the infant and the idiot from the results of their own foolishness, and we shall find it advisable in the future to extend similar protection to the grown-up idiots and infants who are all too prevalent in the world. antonio was a normal business man, but he was no match for shylock, and, though no lawyer can approve of the way in which the courts treated shylock, the real lesson of the story is that laws are necessary to protect antonio, the fool, from shylock, the knave. in order, then, that the full blessings of bankruptcy may be made available to the poor, we must certainly tackle the problem of the living wage, which to my mind is the most urgent social question of our time. so many things seem to hang upon it. rent, taxation, education, physical and moral improvement, eugenics, all the social discussions of the time, land you back on the question of the living wage. sometimes, i think, we are on the eve of a new era when every capable honest citizen will have the same right to a living wage that he now has to free board and lodging and stone breaking in the workhouse. i would rather have a legal right to a living wage than a vote, unless i was clear that i could use the latter to obtain the former and many better things to boot. as a matter of dull, dry, literary history all the prophets and singers and poets, from king david, isaiah and jeremiah down to carlyle, kingsley, ruskin, dickens and tom hood, have said or sung the praises of the living wage. there are many who regard jeremiah as a kind of gloomy dean, but for my part i find him most encouraging. when he says: "woe unto him that buildeth his house by unrighteousness and his chambers by wrong; that useth his neighbour's service without wages and giveth him not for his work," i think that he is absolutely right on the spot. i cannot believe that it was his view that woe would providentially descend upon the man who paid sweating wages and that it would come in the shape of lions and bears or lightning and earthquakes; on the contrary, i read it, that, in jeremiah's view, it was the duty of citizens to see that their fellows did not behave like this. the prophet intended to tell us that our first duty was to persuade our fellow citizens employing labour to give their workmen a living wage, but if we could not achieve this by reasoning and exhorting them, then it was our duty to give such anti-social churls statutory woe, just as we mete out statutory woe to the naughty ones who get drunk and beat their wives, and, indeed, for the same social reasons. david and all his biblical backers were as eager as mr. philip snowden and his socialist friends to promote the living wage, and, as they put it, to "deliver the poor from him that is too strong for him." that, in a phrase, is the modern problem of the living wage. the trust, the combine, the limited company, the corporation or government office are bound in the nature of things to become the spoilers of the poor and needy unless there is some power delegated by the state to some judicial authority to "deliver the poor from him that is too strong for him." but it is not sufficient to cite poetry and psalms and the "song of the shirt"--for then your thomas gradgrind comes along--a man of realities, sir, a man of facts and calculations, a man who proceeds upon the principle that two and two are four and nothing over, and who is not going to be talked into allowing for anything over--thomas gradgrind shakes his square finger at you and says: "how are you going to do it?" and i agree that gradgrind is deserving an answer. i do not say we must wait until we convince him, for gradgrinds are obstinate, stubborn fellows, but we must satisfy the majority that we have a fair answer to his objections and a practical programme to propose. the problem cannot be shirked for ever. even in the prophet carlyle's day it was a matter in regard to which "if something be not done something will do itself one day and in a fashion that will please nobody." and shortly the way in which it will come about is by voluntary conciliation, the erection of joint boards of employers and workmen with a right of appeal to a business legal tribunal--something akin to the railway commission--which shall have power to make and enforce a decree to the worker of at least so much of his fair share of an industry as shall amount to a living wage. i can see nothing revolutionary in this proposal. it really only follows out the trend of modern legislation. if a man has a smoking chimney, or pollutes a river, or goes about in public with an infectious disease, we fine or imprison him for his anti-social misconduct. surely a man who pursues an industry that does not make a living wage for the workers in it is equally an enemy of the people, to be dealt with as such by the law! as mr. justice gordon laid it down in the australian labour courts: "if any particular industry cannot keep going and pay its workpeople a living wage it must be shut up." some day that will be the law of england. no one can deny the common sense of it. a very encouraging sign of the times is that both sides are discovering the uselessness of strikes. in mr. snowden's frank words, "a strike never did much substantial gain to the strikers." it is not only that the strike or lock-out is a crime against helpless women and children, that it wastes the substance and savings of employers and employed and embitters their relations for a generation--all that we knew before; the new and comforting message is that the strike does not "get there," it does not succeed, and therefore, as mr. snowden says, "just as war between nations cannot be defended either ethically or economically, so labour disputes are indefensible." and there are other indications that conciliation and agreement in labour matters are to have a fair trial. already in the railway world an interesting experiment has been made. i have seen enough of it in the working to know that it is not such a spavined animal as some of our political jockeys would have us believe. when the railway conciliation boards were set up the employers and workmen, where it was possible, agreed upon an independent chairman to sit with them in case there was a deadlock. several boards of different companies invited me to undertake this honourable position. i need hardly say that i fancied myself not a little at receiving such flattering invitations, and meeting a friend, who was an eminent railway solicitor, i told him the news--not, i suspect, without a note of pardonable triumph in the phrasing. "what!" he cried; "do you mean to say that the companies and the men have agreed upon you as chairman?" "that is so," i replied, with dignity, being a little hurt at his surprise and astonishment. "well, i'm----. however you'll never have anything to do," he added with a grunt of satisfaction. "and why not?" i asked. "because," he replied, with great deliberation, "if they could agree about you they could agree about anything." i thanked him for the compliment, but, analysing the saying since, i am not so sure that the commendation i accepted was really proffered to me. be that as it may, it has turned out to be true. on the few occasions on which my services were required, i have found that things were capable of adjustment and settlement owing to the excellent good feeling on each side and the real endeavour made by everyone to try and understand the other's point of view. this is where the independent chairman is of real service. in explaining to his virgin mind the difficulties of the case, every point in it has to be discussed and explained anew, and in this way the weaker positions of the argument are made clearer to those who are defending them. thus it becomes easier to give way about some matter of detail, and concession breeds concession. without making too much of my own small experience, it bears out my theoretical expectation, and i am satisfied that a conciliatory court for trade disputes is a live business proposition, calculated to save employers much unnecessary woe, and that if jeremiah had thought of it, he would have proposed to set one up as a practical step towards the living wage. until, then, we have established a living wage for the worker, the question of his bankruptcy is in a large measure academic. at present bankruptcy, like divorce, is rightly regarded as a luxury for the well-to-do. i know that to some minds the word "bankruptcy" connotes poverty, but if you look into the facts and history of the matter, you will find that, though bankruptcy may on occasion lead to poverty, a poor man never does, or can, become a bankrupt. people fail to the tune of five or six million pounds a year, but when you analyse the list of the insolvent you will not find many poor folk among them. there are lords and gentlemen, solicitors and stockbrokers, merchants and manufacturers, builders and farmers, and butchers, bakers, and candlestick makers. but the nearest you will find to poor people are lodging-house keepers and coffee-house and fried fish shop proprietors. these are precarious trades, and the working man, being a good sportsman, likes to have a gamble in them with his savings. in this way he joins the aristocracy, and becomes an eligible bankrupt. but the labourer and artisan, the real working men, have no more chance of bankruptcy than they have of election to the athenæum or the carlton. bankruptcy is a legal status jealously guarded by the caste to which it belongs. the poor man reads in the paper of builders and merchants failing for their thousands, of well-paid accountants carefully investigating the history of their financial fall; he puts his head into the registrar's court and hears an amiable official receiver sympathetically tracing the career of the well-groomed bankrupt in front of him; he sees the judge present the unhappy fellow with a clean slate, from which all his debts are wiped away, and hears him announce to the unfortunate insolvent the date upon which the law will allow him to start becoming insolvent again. and the working man thinks to himself of the twenty or thirty pounds that he owes, and how pleasant it would be if an accountant would add it up and a judge tell him that he need not worry any more about it; but when he begins to inquire further into the subject he finds that bankruptcy is one of the good things of this world that he cannot afford. bankruptcy, successful bankruptcy, is not so easy of achievement as you might think. it is not everyone who knows how to become a bankrupt. there are a lot of big, expensive law books written on this subject by clever fellows who spend their lives soothing the bankrupt's last hours and winding him up according to law and order, with costs out of the estate, but you need not study these to learn how to become a bankrupt. most bankrupts are pig-headed fellows, and achieve bankruptcy in their own foolish amateur way. they read the books about it afterwards. to begin with, you certainly want money, or at least an overdraft and plenty of credit. intending bankrupts generally wear very good clothes; especially are they particular about the shine of their silk hat. bankers and intelligent business men have, in all ages, given credit to top hats, white waistcoats, and gold watch chains. the poor man has none of these, and therefore cannot obtain that overdraft which is one of the first essentials of bankruptcy. the bankrupt has a curious affection for jewellery. he buys large quantities of this commodity, and sells it again at a loss to stave off the evil day and add to his deficiency. i read in the board of trade reports of a failure due to gambling and extravagance, in which the debtor purchased jewellery for £ , and sold it the same day for £ , . if he had been a poor man i think maybe the police would have tried to find a law to give him a rest cure for a few months in one of his majesty's gaols, but he failed for over £ , , and the probable value of his assets was £ . perhaps he was a bit of an aristocrat. anyhow the police left him alone. i cannot even tell you his name, for the kind inspector-general in bankruptcy, fearful of causing pain to the sorrowing, never tells you the names and addresses of the people whose history he writes. he speaks of him as "no. of ." the poor fellow had no occupation, his cruel father only allowed him a miserable thousand a year, so what could no. do but run into debt? the wonder is that he failed for so little as £ , . no. of was not much of a record, but he will do as another example. he, too, had no occupation except qualifying for a bankrupt and ultimately failed for £ , with assets _nil_. he started his wild career at the age of nineteen with expectations of a fortune when he got to the age of twenty-five. with that charming simplicity and cunning, characteristic of the whelps of the vulgar rich, he proceeded to moneylenders, and at the date of the receiving order had created charges exceeding £ , on his reversion of such complexity that every mortgagee disputed the right of every prior encumbrancer. this would not matter so much, as all these victims were doubtless moneylenders and a lot of the money would go to estimable lawyers to smooth out the wrinkled parchment muddle, but then at the back of all those were the unsecured creditors, poor tradesmen and others. they were to get nothing. no. of was an even smaller fellow. this debtor was educated at oxford and, on leaving the university in , he was in debt to the extent of £ , . i have a passion for statistics, and i should like to see a balance sheet showing on one side the expenses of the four thousand oxford undergraduates during three years of residence, and on the other side the earnings of the same four thousand undergraduates for a similar period in, say, fifteen or twenty years afterwards. i fear it would not be much of an advertisement for oxford. no. 's father paid up his creditors to the extent at least of fifteen shillings in the pound, and gave him a fresh start. he was in trouble again in , through betting and extravagance, and failed for £ , --assets £ , . the french have an excellent system of declaring these youngsters to be prodigals and putting them under a committee as we do lunatics with property, and no doubt in money matters they are akin to the insane, and are really to be pitied and cared for. but to the poor it must be strange to see debt and the disaster of debt causing such different results in law to different classes of people, and it must be hard for them to understand why they, too, are not fit subjects for the blessings of bankruptcy rather than gaol. and what am i to say to my friend joseph the signalman, at twenty-nine shillings a week, when he shows me some of these spicy stories of the inspector-general's report cut out of the local paper. "what has it all got to do with you, joseph?" "well," he says, "i've been thinking why should not i do a bit of a failure like no. of ? i can buy a gramophone and a watch, and a few lucky wedding rings and a family bible, and a plush drawing-room suite on the instalment system, and i can borrow a pound or two on a promissory note. of course betting and beer cannot be done on the nod in my class of life, but one can owe a bit of rent, and altogether i see my way to do a failure up to, say, thirty pounds. why shouldn't i go bankrupt?" "well, the answer is very simple," i have to tell him. "the rules of the game are made by the rich for the rich, and not for you, joseph, at all. oh, dear, no! in the first place you must have a debt of fifty pounds." "well," replies joseph, "i think i could bring it as high as that if i tried." "and next you must have a creditor to make you bankrupt, and unless he thinks there is some stuffing in you or wool on your back a creditor is not going to waste his time and money making the likes of you bankrupt." "but," says my hopeful friend joseph, "what is the meaning of a chap filing his own petition? i've often read of that. why shouldn't i file my petition?" "my dear, simple fellow, you surely do not think the clever ones of the earth who look after your interests have not thought all that out? you take your petition to the bankruptcy court and see what happens. you will find the usual janitor at the door with his open palm. of course you are expected to pay a fee--you have learned enough about english courts to know that you do not get 'owt for nowt' in any of them. but in the bankruptcy court, my young friend, they foresaw you coming along and they have put the figure too high for you. ten pounds, money down! that's the price. if you want to set all the pretty little figures working, the official receiver smiling, the registrar writing it all down, and the judge nodding on the bench, and the board of trade publishing statistics about you--ten pounds into the slot, my young friend, and the figures will work. "but you have not got ten pounds, joseph, and you could not raise the sum if you tried, so you will have to go back to work and pay twenty shillings in the pound somehow. and don't go and sell your gramophone and drawing-room suite, for they are on the hire system, and that would put you in the dock, where i hope you may never be. no. bought his £ , worth of jewels out and out, or said he did, and it was a paris jeweller, anyhow, and i believe he was one of the 'nuts' and not your class at all, joseph, but you may take it from me that you must not expect to be treated as he was. have i said enough, my dear friend? are you quite satisfied? bankruptcy, i can assure you, is not for joseph. oh, dear, no!" it is only fair to the law and to the memory of mr. chamberlain, who made the law, to remember that when he introduced the bankruptcy act of he invented a system of small bankruptcies called administration orders, whereby poor folk whose debts do not amount to fifty pounds may make a composition with their creditors. let me set down in his own words exactly what he intended and tried to do. i quote from his speech on the second reading of the bill: "what he now desired to call attention to was the clause which followed and which dealt with the case of debtors who owed less than fifty pounds. that was the class of debtors who filled our county courts with plaints and added very considerably to the number of the occupants of our gaols. it had always been felt to be a great hardship that while a large debtor could with ease relieve himself of all his liabilities he or his trustees might be prosecuting a poor man for thirty or forty shillings, and the latter might be sent to prison without having any means provided for him to make a composition with his creditors, and when, after satisfying the debt, he came out of gaol he was still liable in full to all his other creditors." * * * * * "but the more important provision which he had made for dealing with this subject was that under which a county court judge might in future make an order for the payment by a debtor who owed less than fifty pounds by instalments or otherwise of all or any part of his debts. a debtor who was brought up on a judgment summons or a county court plaint might state that he was indebted to other persons, might give in a schedule of his debts and propose an arrangement for discharging them, and, if the court thought it reasonable, it might at once confirm it, so that a small debtor would thus be in exactly the same position as a large debtor who had succeeded in making a composition with his creditors or in arranging for a scheme of liquidation. although he had not abolished in all cases imprisonment for debt, yet, if these provisions became law, it could no longer be said that any inequality existed as between rich and poor. the resort to imprisonment to secure payment would be much easier, and a large discretion would be vested on the judges to arrange for the relief to the small debtor by a reasonable composition." i have set this out at length because it is enormously encouraging to know that thirty years ago mr. chamberlain's ideal was to destroy the county court imprisonment for debt and to give the working man who fell into debt a bankruptcy system similar to that of the rich. why did it fail? well, it has not been wholly a failure, but it certainly has not fulfilled all its author's generous hopes. in the first place the fifty-pound limit is too small, another reason of its non-success is that it is a voluntary system of some complication in competition with the simple, brutal method of the judgment summons and imprisonment for debt, but probably its unpopularity is chiefly due to the fact that the treasury has always deliberately crabbed it by imposing harsh and unreasonable fees. no system of this kind will be successful without compulsion and some clerk of the court in the position of an official receiver to advise the poor how to go about the matter and to see that the order made is carried out. such a system is in vogue in some courts and has proved a success in mitigating imprisonment for debt and holding out a helping hand to those who were drifting into insolvency. but the system as it stands depends too much on the initiative of the county court judge or the registrar. thus we find on a working-class circuit like oldham, rochdale, etc., there will be over six hundred orders made, whereas in whitechapel only two orders are made in the same year. systems favourable to the working classes flourish more vigorously in the north than in the south. you must not suppose the working man is allowed to cast off his debts in the wholesale way in which the thorough-bred, blue-blooded bankrupt does. not a bit of it. the order made against him is that he shall pay his debts to the extent of so many shillings in the pound at so many shillings a month. if he does not carry out the order there is prison for him for every instalment he fails to pay if the judge so orders, or at the best his order is rescinded and all his creditors are down on him again as before. but the main drawback to the business is the extortionate fees charged by the treasury. here is a poor devil with twenty-five shillings and a wife and family and, let us say, thirty pounds of debt, and the judge gives him an administration order to pay ten shillings in the pound at five shillings a month. the treasury are at once down on him. their fees are always calculated, not on the dividend paid, but on the total amount of the debts, and they insist in every case on two shillings in the pound. thus, in the case of the man with thirty pounds of debt, the treasury want three pounds money down before the creditors get anything. in the treasury took no less than £ , in these fees. in this matter we cannot acquit the law of the offence of grinding the poor. imagine a wealthy country like this squeezing the insolvent poor out of their weekly pittances instead of helping them to pay their debts. i call it a wicked policy for the state to throw impediments in the way of a working-class man who is struggling out of the back-waters of debt into the fairway of solvency. do not let us shut our eyes to what it means, for the treasury is only our servant and ought to be doing our will, and the responsibility is yours and mine. for we know that every penny of that £ , comes out of the mouths of hungry women and children or, at the best, robs them of so many boots and so much clothing. what fees do the treasury receive from no. of and his like? two shillings in the pound on the rich man's £ , of debt might enable the chancellor to treat the poor more leniently. but the rich man pays his entrance fee of ten pounds and is a life member of the bankruptcy club. the treasury never thinks of touching him for a subscription of two shillings in the pound on the amount of his debts. some day there will come along a chancellor of the exchequer who will be a good samaritan, and the treasury will cease to strip the poor debtor of his raiment to the tune of £ , a year. of course it is very easy to blame a public department and throw ugly words at the lords thereof. one gets into a bad habit of blaming those in high places for the inequalities of things. i wonder if i were chancellor whether i should get rid of that shameful tax on the poorest of the poor. perhaps not. after all, the good samaritan was speculating with his own oil and investing his own twopence. the oil and the twopence of the exchequer belong to the public and must be dealt with according to the rules of statecraft. and there may be some grave national danger beyond my humble ken that makes it necessary for england to dirty her hands with that £ , . chapter vii divorce "we have thought to tie the nuptial knot of our marriages more fast and firm by having taken away all means of dissolving it; but the knot of the will and affection is so much the more slackened and made loose, by how much that of constraint is drawn closer; and on the contrary, that which kept the marriages at rome so long in honour and inviolate, was the liberty every one who so desired had to break them; they kept their wives the better because they might part with them if they would; and in the full liberty of divorce, five hundred years and more passed away before anyone made use on't." michel de montaigne: "essays." translated by charles cotton. book ii., chap. xv. nearly four hundred years ago thomas cranmer, archbishop of canterbury, was burned at the stake over against balliol college, oxford. you remember how a few days before, in a moment of weakness, he had signed a recantation, and how when the fire was kindled and the flames licked up the faggots they revived the spirit of the martyr within him, and he thrust his right hand into the flames, crying out: "this was the hand that wrote it; therefore it shall first suffer punishment." but if that hand had offended in matters spiritual, in practical matters it had done good work for the state. cranmer's "reformatio legum ecclesiasticarum" contains some of the best sense about divorce law reform that i have ever read. its proposals are moderate, sensible and in harmony with the religious ideas of his day, which seem to have been broader and more rational than those of to-day. had edward vi. lived a little longer cranmer's treatise would have been enacted as the statute law of the country. it is pitiful to think of the four hundred years of misery and injustice under which the citizens of this country have suffered in matters relating to divorce owing to a change of government in . the scots did better out of the reformation and have had a more or less satisfactory divorce law in working order since that date. shortly, the propositions that cranmer proposed were these, and they will be found, i think, to run parallel with the views of the common-sense citizen of to-day. he laid down the command that no husband or wife may abandon the other of his or her own free will and, in order that this might be a practical ideal, he set down the causes for which the courts were to grant relief. divorce was allowed for adultery, unless both parties were guilty; desertion; the unduly protracted absence of the husband; or the deadly hostility of the parties. prolonged ill-treatment of the wife gave her a right to divorce, but even here, as long as there was any hope of improvement, the duty of the ecclesiastical judge was to reason with the husband and make him give bail for good behaviour. only in the last resort must "she on her part be helped by the remedy of divorce." great stress is laid throughout the treatise on the desirability of reconciliation. "since in matrimony there is the closest possible union and the highest degree of love that can be imagined, we earnestly desire that the innocent party should forgive the guilty and take him back again should there seem to be any reasonable hope of a better way of life." practical effect was to be given to this principle by the court before proceeding to divorce. cranmer was entirely at one with the more advanced thought of to-day in his detestation of "separation orders." separation without divorce was, he realised, an overture to immorality. "it was formerly customary," he writes, "in the case of certain crimes to deprive married people of the right of association at _bed and board_ though in all other respects their marriage tie remained intact; and since this practice is contrary to holy scripture, involves the greatest confusion, and has introduced an accumulation of evils into matrimony, it is our will that the whole thing be by our authority abolished." what he would have said about our wholesale police court method of separating married people without giving them any rights to form new ties one does not like to imagine. one cannot turn from the short and pithy "reformatio legum ecclesiasticarum" of the sixteenth century to the colossal unwieldy blue books of the twentieth century with any sense of satisfaction. perhaps the most interesting thing to be got out of the latter is a study in contrasts between the body, flavour, and bouquet of archbishops of different vintages. thomas cranmer's services to the state being no longer available after the balliol fire, the choice of his majesty edward vii., when he issued his royal warrant in for the divorce commission, fell on "the most reverend father in god our right trusty and entirely beloved counsellor cosmo gordon, archbishop of york, primate of england and metropolitan." one would have hoped that after four hundred years further consideration of cranmer's views on divorce--the latter-day representative of cranmer's church would have been able to give king edward vii. at least as good counsel as his predecessor gave to edward vi. no doubt the minority report that he ultimately wrote fairly represents the narrower views of modern ecclesiastics, but it is a sad thing to see the leader of a great church absolutely out of touch with the practical reforms that those who know the lives of the poor admit to be necessary. i should regret if, in a moment of spiritual insight, it should be made clear to our good archbishop that in signing the minority report his right hand had been guilty of offence, or that he should think fit to discipline himself after cranmer's example; but if he had thrust his minority report into the fire, church and state might have sung a joyful psalm of conflagration and congratulation. alas! edward vi. passed away without reform, and our brave king edward vii. changed his world whilst the commissioners were still commissioning, and maybe it will be edward viii.'s turn some four hundred years hence to sign the new divorce law. let nothing be done in a hurry. from cranmer's day until no divorce law was passed. in the meantime, if you were a peer with a naughty wife, you got an act of parliament passed to divorce her. it was an expensive proceeding and, incidentally, of doubtful legality. but the eugenics of nobility and the purity of breed in the peerage made some such machinery necessary, and so you had "an act for lord roos to marry again," and others similarly entitled. only the very rich at the rate of two or three a year could avail themselves of this procedure, and, of course, the very poor had not a look in at all. it was a judge who awakened the world to the iniquity of it all, and he did it by a jest. there are some funny things said in the high court to-day, but they do not seem to be designed to push the world along as this witty speech did. it was mr. justice maule--a sly dog, the hero of many a good circuit story--that one about the threatening letters, for instance--it was maule j. in a bigamy case, _regina_ v. _thomas hall_, tried at warwick in , who woke up the country to the fact that there was a divorce problem, and that it wanted solving. hall was a labouring man convicted of bigamy and called up for sentence. maule, in passing sentence, said that it did appear that he had been hardly used. "i have indeed, my lord," called out poor hall, "it is very hard." "hold your tongue, hall," quoth the judge, "you must not interrupt me. what i say is the law of the land which you in common with everyone else are bound to obey. no doubt it is very hard for you to have been so used and not to be able to have another wife to live with you when maria had gone away to live with another man, having first robbed you; but such is the law. the law in fact is the same to you as it is to the rich man; it is the same to the low and poor as it is to the mighty and rich and through it you alone can hope to obtain effectual and sufficient relief, and what the rich man would have done you should have done also, you should have followed the same course." "but i had no money, my lord," exclaimed hall. "hold your tongue," rejoined the judge, "you should not interrupt me, especially when i am only speaking to inform you as to what you should have done and for your good. yes, hall, you should have brought an action and obtained damages, which probably the other side would not have been able to pay, in which case you would have had to pay your own costs perhaps a hundred or a hundred and fifty pounds." "oh, lord!" ejaculated the prisoner. "don't interrupt me, hall," said maule, "but attend. but even then you must not have married again. no, you should have gone to the ecclesiastical court and then to the house of lords, where, having proved that all these preliminary matters had been complied with, you would then have been able to marry again! it is very true, hall, you might say, 'where was all the money to come from to pay for all this?' and certainly that was a serious question as the expenses might amount to five or six hundred pounds while you had not as many pence." "as i hope to be saved, i have not a penny--i am only a poor man." "well, don't interrupt me; that may be so, but that will not exempt you from paying the penalty for the felony you have undoubtedly committed. i should have been disposed to have treated the matter more lightly if you had told maria the real state of the case and said, 'i'll marry you if you choose to take your chance and risk it,' but this you have not done." and so the judge gave hall three months or, as some say, four. but that was because he had not told maria all about it. it was for not playing cricket, not for breaking the law. and where the parties commit bigamy out of sheer respectability and a desire to placate mrs. grundy and have some marriage lines in a teapot on the mantelpiece to show the lady who lives next door, the judges, providing there is no deception, wisely treat the offence as something far less deserving of imprisonment than non-payment of rates. why the police prosecute in these cases the chief constable only knows. and the scorn and irony that maule poured on the law of divorce roused the public conscience, and there was a royal commission in and a divorce act in , and the result was the divorce court as we know it, an excellent tribunal for the matrimonial troubles of well-to-do people, but of no use to poor hall and maria. for maule's words slightly paraphrased might be as truly spoken to the bigamist of to-day as they were to poor hall. and four years ago we had another royal commission, and hundreds of witnesses were examined, and papers and reports handed in, and many days spent in collating and considering the same, and much stationery consumed. it was a shabby thing to the poor to institute this long-winded inquiry. there was nothing to inquire into. the mountain has finished groaning, and the expensive and ridiculous mouse has made his appearance--and all it comes to is that what good old thomas cranmer said ought to be done in the majority think might be experimented on in ; only--the archbishop of to-day is no longer on the side of reform. that, i suppose, shows us very fairly the pace at which the world moves forward and the church moves backward. in a great and necessary social reform, such as this, the church occupies the position of the old-fashioned horse lorry strolling down the middle of the road amiably blocking the modern traffic of the city. it is all very pleasant and reassuring to those nervous folk who fear we are rushing like gadarene pigs into a sea of legalised vice and immorality, but to visionaries and dreamers like myself who would like, as the children say, "to see the wheels go round" in their lifetime, it has its mournful side. there are two ways in which those who are satisfied that the world is the best of all possible worlds meet proposals for reform. if they are backed up by popular clamour and agitation they say with some show of reason that it would never do to give way to threats of violence. if, on the other hand, the campaign for reform is conducted by mannerly argument it is commonly said that there is no demand for a change. comfortable clerical persons are never tired of telling you that there is really no demand from the poorer classes for any reform of the divorce laws. true, people do not go out in the streets and break the windows of cabinet ministers or make themselves politically disagreeable after the fashion of the middle classes who have grievances real or imaginary. but anyone whose advice is sought by the poor in their troubles knows that the demand for divorce exists if it were of any use uttering it aloud to our smug and respectable rulers. of course the demand or no demand is immaterial to anyone who has grasped the fact that it is a principle of elementary justice that the poor should have the same audience and remedies in all our courts as the rich. the real demand for divorce is to be found in the circumstances of the lives of the poor. i propose to set down a few typical cases drawn in every instance from public published records. jane married fred when twenty-two years of age. soon after the marriage he began to ill-treat her and would not work. jane's parents helped them in business. fred continued his ill ways and at length gave jane a beating. jane took out a summons, but would not face the court, and forgave fred. after five years of unhappy married life jane went back to her parents taking her two children, fred agreeing to pay her three shillings a week. at the end of nine months he ceased to send any money and disappeared. for seven years jane lived with her parents until they died. after their death she found it a great struggle to live and pay the rent. charles now comes on the scene, he takes lodgings and pays the rent. ultimately charles and jane live happily together and there are two children of the union. charles provides for fred's children as well as his own. charles and jane would like to marry for their own sake and for their children's. in so far as there is any sin or immorality in this story the promoters of it and the sharers in it are those who stand in the path of divorce reform. here is another typical case. george marries mary, their ages are eighteen and seventeen. soon after marriage mary--who comes of an immoral family--starts drinking and going about with other men. ultimately she deserts george and becomes pregnant by another man and is confined in hospital. the guardians proceed against george for the expenses of the confinement, but he is able to prove to their satisfaction that he is not the father of the child. mary then disappears to further infidelities and george goes back to live with his mother. later on anna appears on the scene and george and anna have now a comfortable home and healthy infant. "they think a deal of it and wish it could be legitimate." so, no doubt, do charles and jane and many other poor parents in like case. the law says that these people are entitled to have a divorce, only the law erects its court in a corner of london inaccessible to these poor provincials, and makes the costs and fees and services of its judges and officials and counsellors so expensive that there is no possibility of charles and george, and jane and anna, and their little infants having the blessings of legal and holy matrimony because they have not the cash to purchase the luxury which is not for the likes of them anyhow. and when it is suggested that divorce might be cheapened and made available for these poor citizens archbishops shake their heads, and legal bigwigs, with their eye on the fees and the costs, hold up their hands in amazement. divorce is a reasonable proposition for marmaduke and ermyntrude, of "the towers," loamshire, but for george and anna in back tank street, shuttleborough--not likely. there is no demand for it, says the minority report, and its worthy authors point out with cynical contempt for the working classes that they have got a system of separation orders which is really all they require. now if there is one thing which the evidence before the commission puts beyond doubt it is that the law in relation to separation orders induces, invites, and causes immorality in the poor. cranmer, you remember, knew all about that, and looked on separation without the right to remarry as an unclean thing. but since the sorrows of the poor in their marriage shipwrecks were so manifest, and the divorce court was closed to them, systems of magisterial separation orders, cheap permanent divorces, without the right to marry again, have become the order of the day. there are some six thousand of these decrees made annually. the evidence is overwhelming as to the evils that spring from these orders. as mrs. tennant reports, "i believe that separation orders, the general alternative offered to divorce, work badly in working-class houses, and on the whole make for an increase rather than a diminution of immorality. we have to consider housing conditions and economic circumstances which often do not make for clean or wholesome ways of life, and where the relief offered by separation is not only inadequate but positively mischievous." put in plainer terms by the witnesses, a labouring man, if he has to find a home for his children, has to find a woman to keep house for him; a woman of the same class has to pay a rent, which necessitates the taking in of a lodger. human nature being what it is, it seemed superfluous to appoint a royal commission of trusty and well-beloved ones to tell us what would happen. this is a system that the archbishop of york thinks "probably fulfils its purpose fairly well." of course, it all depends what its purpose may be. if it is its purpose to stand in the way of cheap divorce and the rights of the poor to have the same chance of rescue from a shipwrecked marriage that the rich possess, all is indeed well. but if the object of the law is to bring to those who are weary and in misery some hope of a new life and a new home where children can be born without shame and the parties can live in accordance with the wishes of themselves and their neighbours, then with all respect to the primate of england, the law is probably fulfilling its purpose very damnably. it is only fair, of course, to remember that the archbishop of york and his learned colleagues of the minority report never meet fred and jane and george and anna in real life, and can know no more about such folk at first hand, and have as little chance of understanding their point of view, as i have of studying and comprehending the sociological limitations of the higher priesthood. detestable as i hold these ecclesiastical errors to be in their practical bearing on the lives of the poor, i am hopeful that time and argument will overcome the ecclesiastical veto on reform. i am sure that even a bishop would be converted to healthier views of life if he could have a little home chat with george and anna. and if their pleading did not convince him, i have a belief that the sight of their babies might touch the heart which even in a bishop, we may suppose beats somewhere beneath the chimere and rochet or whatever the vestments are called in which his lordship disguises his human nature from the lower classes. many of our judges and other learned men see very clearly the enormous importance of divorce reform to the poor. mr. justice bargrave deane put the matter very straightly to the commission when he said, "the question of divorce is more a question for the poor than the rich. the rich have their homes and their comforts and their friends who are of a different position and who can by their own advice and conduct keep people straight." in so far as this implies that the standard of morality or etiquette of decent matrimonial conduct is stricter among the rich than the poor, i doubt its truth. the working classes have no leisure for flirtations and philandering. the behaviour of a fast set in a wealthy country house--which is generally more vulgar than really naughty--would probably scandalise the dwellers in a back street. but what the learned judge wished to emphasise was that the consequences of ill-conduct in a husband or wife are far more serious in the everyday life of the cottage than in that of the mansion. here he is undoubtedly right. what, for instance, can be more terrible than the effect of persistent drunkenness on the married life of the poor. alfred and anna have two children. the man earns thirty-two shillings and sixpence a week when in full work and is a thoroughly decent and respectable man. his wife is an inebriate. she pawns everything for drink and neglects her children. her husband obtains a separation order, but after three years anna promised reform, and alfred, like the good fellow he was, took her back. unfortunately in two months she was as bad as ever, and furniture, bedding, clothes, all the household goods disappear to the pawnshop. the children are reported upon by the school authorities. the parents are prosecuted for neglect, and on anna agreeing to go to an inebriates' home for twelve months the bench postpone sentence. when she comes out she is a wreck, suffering from alcoholic neuritis which is leading to paralysis. during her absence alfred has had to pay seven and six a week for her maintenance. he now allows her five shillings a week and she lives with her sister. he is on short time earning twenty-six shillings a week. the children are without mother, the home is without a woman's care and influence and his income is rendered insufficient to provide the necessaries of life. here is another picture--john married catharine in . there was one child. when the infant was nine months old catharine was forced to leave her husband on account of his drunken habits. the child went to its grandmother and catharine went to service for seven years. after that time she met charles, a widower, with one child. being a brave and sensible woman she went to live with him as his wife. they have two children of their own now, one is three years old and the other six months. they have a good home and are very happy, and would like to be married if the law allowed it. now all that religion has to tell us about these cases is that marriages are made in heaven and that heaven having once made these two utter messes of human affairs, it is impious for human hands and minds to try and mitigate the evil for which heaven is responsible. i wish those for whom these old-world blasphemies have merely a folklore interest would leave this so-called religion mumbling in its outer darkness and apply their practical minds to so reforming the law that the lives of alfred and anna and catharine and charles and their innocent babies, and hundreds of other good men and women and innocent children, might no longer have to live in this civilised country under any legal disability or under any social shadow of ignominy or shame. in practice these folk very often do marry again without the blessing of church or state, as in the last-cited case, and live useful and virtuous lives, bringing up happy children in good homes. the law should assist such citizens in the interest of the state, for the community want good homes and healthy children leading happy lives. the recommendation of the majority commission in this matter is a very conservative one. it is that habitual drunkenness found incurable after three years from a first order of separation should be a ground for divorce. this, coupled with divorce for cruelty or desertion for three years and upwards, would certainly cover some of the sadder cases that were brought to the notice of the commissioners. the right of the state to refuse divorce in the case of the insanity of a party to a marriage seems hardly arguable. here is one of the many sad stories. norah married a soldier twenty years ago. fourteen years ago he was taken to an asylum, where he still is, and norah applied for relief. she was offered scrubbing work at the workhouse from a.m. to p.m. at nine shillings a week and some bread, or two-and-six a week and six pounds of bread, with liberty to take in two lodgers. norah, to be with her children, chose the latter. john was one of the lodgers. he found his way to norah's heart by buying presents of boots and clothing for the children. and so norah and john became man and wife, save and in so far as the law refused them that status. as norah told a lady visitor, "i suppose you think it was wrong for me to drift into our present way of living, but it was such a struggle and he was so good to us. i have never been killed with wages, but we are as comfortable as we can be. i often wish we were free to marry because we do not like our children being illegitimate, and people look down on a woman so, if she lives as i am doing." in this matter it is cheering to know that the archbishop and his learned adherents in their minority report are prepared to make some concession. i state this with pleasure, remembering the wise words of that good old welsh parson, the rev. john hopkins, of rhoscolyn, who said, "indeed, judge parry, remember this, one must be charitable even to dissenters." _a fortiori_ one should be just even to archbishops, and it is hopeful that in the matter of insanity where one of the parties is either of unsound mind at the time of the marriage or in a state of incipient mental unsoundness which becomes definite after six months of marriage and the suit is commenced within a year of marriage the minority report timidly proposes that such a marriage might be annulled. what the difference in principle may be between the cases of a mad husband who has been married for six months and a madder husband who has been married for six years the learned ones do not inform us, but we may regard it as a sign of grace that there are some matrimonial miseries that seem to these hard-hearted pundits worthy of sympathy and relief. no protest seems to be made by the church against the go-as-you-please divorce methods of to-day among the upper classes, but if divorce by consent does not exist among the rich it shows great rectitude and self-denial on their part. one often reads of a case like the following one. mrs. a. is neglected by her husband, who leaves her. she asks him to return and he refuses. she files a petition for restitution of conjugal rights. the court makes a fourteen days' order on the undefended petition. i wonder if such an order has ever been obeyed or was ever intended to be obeyed. on receiving the order mr. a. writes that he is not coming back, but that he will be found staying at a certain hotel with another lady under the style of mr. and mrs. a. inquiries are made, and this proving true a divorce petition is filed. this again is undefended and the decree _nisi_ goes as of course. it is conceivable that such a procedure might be used by two intelligent persons who did not respect the laws of their country as a method of divorcing each other by consent, but i have no doubt that the well-to-do who constantly go through these forms are far too scrupulous in their observance of the letter and spirit of our divorce law to be guilty of anything that could be construed into collusion. i do not think that in this country, except among wild and fanatical folk and some of the fast set with whom we need not concern ourselves, there is any demand for divorce by mutual consent. but, even if this were enacted, it does not follow, as montaigne has told us, that it would be used. the idea that a more reasonable system of divorce will lead to a wholesale system of divorces is an absurd folly, a bogey used by ignorant but honest clericals to frighten good people who rather enjoy being scared to death. the fat boys of sociology love to make their victims' flesh creep, and when they speak of divorce reform constantly suggest that human nature tends to immorality in matrimonial affairs. as a matter of fact human beings naturally prefer marriage and married life where it is at all a successful institution to divorce and divorced life. this is wonderfully illustrated in belgium where, as m. henri mesnil, the french avocat, points out, divorce law "as provided for by the code napoléon has remained in force down to the present day: in spite of the long predominance of the catholic party dissolution of marriage by mutual consent is still possible in that country. i might say that although possible it is a very rare thing. i think only one case of divorce by mutual consent will be found amongst four hundred cases in belgium." here we have the results of a hundred years' experience of a european country not unlike our own. it bears out exactly what one would expect, and it is only by ignoring such evidence and referring to the laxity of state procedure in america, without reminding the reader that there is no evidence of any greater laxity in the state of morality there than elsewhere, that the archbishop of york and his friends can claim that the "preponderating voice of history and experience"--a charming phrase--is in favour of their minority report. the archbishop treats history as moses treated the rock. he strikes it with his archiepiscopal staff and there flows forth a gush of watery precedents to rejoice the hearts of the faithful. a poor pagan like myself can only approach the rock with a humble geological hammer and, knocking a few chips off it, report that it does not come of a water-bearing family. outside miraculous draughts of history there is nothing to be found in the past experience of social life that tells against a reform of our present divorce laws. but no reform in the law will be of the least use to the poor unless jurisdiction in divorce is given to the county court. the opposition to this is twofold. it comes from those who object to any reform at all and see that by keeping divorce costly you naturally limit its use, and, again, it comes with even greater force from those who are making their money out of the present system. very naturally the divorce court bar, having an excellent paying business all to themselves, do not want to share it round with other people. towards their trade union attitude of mind i have every sympathy. but when it is more than hinted that it would really be beyond the capacity of a county court judge to try those "very difficult considerations of cruelty, condonation and connivance," i prefer the alliteration of the phrase to the sense of it. there is really no mystery about divorce law. the issue is an absurdly simple one, of grave importance to the lives of the parties certainly, but to a lawyer with a business mind far easier to try than many of the issues that arise every day in bankruptcy, admiralty and commercial cases, and in arbitrations under the workmen's compensation act. the daily work of a county court judge is not less difficult than that of his high court brother. the complication of a case does not depend upon the amount at stake, and the county court judge has, if anything, to have a somewhat wider knowledge of law and a far greater knowledge of the lives of the poor than any other judicial person, since the legal subjects he deals in are more varied in character than those met with in other courts, and he naturally sees more of the daily life of the people. certainly the high court judges get better assistance from the bar, or rather, i should say, more assistance--or should it be assistance of greater length?--but the county court bar of to-day contains the pick of the younger men, and is really the nursery of the common law bar since it is only in the county courts that a catholic experience in civil advocacy can be obtained. i noted with some interest that in a recent batch of silks seven or eight had been before me, some of them several times within a few months of their taking silk. when there is a divorce case of any importance--in the same way as if it were a libel case of importance--great advocates with no special knowledge of the mysteries of divorce law are called in to lead the specialists. what is wanted is advocacy, not knowledge of divorce procedure, and the county courts have excellent advocates to-day. if there is one special branch of law where one would think expert knowledge is essential it is admiralty, yet important admiralty cases belong to county court districts where for aught anybody knows or cares the learned judge and the advocates may not know the difference between a bowsprit and a rudder. but the real reason why the county court should be chosen for this work in the interests of the poor is to my mind the real reason why the county court is popular with business men and the high court is not. in a properly managed county court a case is set down for a certain day and, except on rare occasions, it is tried on that day. as mr. dendy, the learned registrar, pointed out to the commission, "there's no doubt it is of very great advantage to a poor man to know the day on which his case is likely to be tried." it is indeed essential. the man himself and his witnesses do not belong to a class who can spend leisured hours flitting about gothic corridors or waiting to be fetched from public-houses day by day until their case is reached. certainty of trial and reasonable speed in reaching and disposing of the case are worth much more to business people than abstruse technical knowledge or long experience of the habits and manners of those who commit adultery. no one has more reverence than i have for the views of lord alverstone, who thinks divorce jurisdiction should not be given to county courts, yet one must not forget that not only is the opposite view supported by a large number of men and women who know the wants of the poor very intimately, but experts, like sir john macdonell and sir george lewis, both recognise that if you are going to give a whole-hearted measure of reform with the intention of really putting divorce at the disposal of the poor there is no other court to which these cases can honestly be sent. not only must this be done, but if we are to bring ourselves abreast of what already exists in foreign countries we must do a great deal towards cheapening the procedure even of the county court for those who are poor. the french have a very complete system of divorce for poor people, known as "_assistance judicaire_." the effect is that the persons to whom assistance is granted do not have to pay anything whilst they remain poor. the state advances the necessary money. the _avocat_ and _avoué_--barrister and solicitor--work for nothing. in case the assisted person comes into better circumstances he may be obliged to repay the state. if the poor litigant succeeds in his proceedings, the unsuccessful party pays the costs. in there were , persons who applied for assistance, , of which were in relation to matrimonial proceedings, and relief was granted to , poor people, of whom , were seeking different forms of matrimonial relief. in germany and the netherlands divorce is equally open to poor people, who receive state aid, and in scotland there is a well-known system which is known as the poors roll, which is said to have existed since . the scots parliament act, which instituted this excellent procedure, commenced as follows: "if there be any poor creature who for lack of skill or expenses cannot nor may not follow his cause the king for the love of god shall ordain the judge before whom the cause shall be determined to purvey and get a leal and wise advocate to follow such poor creatures causes: and if such causes be obtained [won] the wronger shall indemnify both the party injured and the advocate's costs and travail." it is amazing to find in scotland of the fifteenth century laws for the poor that we are only dimly thinking about in our vague uncertain timid way at the present day. what actually happens to the poor man of the present day is set out in the following case--a very common one:-- summoned in the city of london court for the non-payment of forty-five pounds, his wife's costs in a divorce suit in which he was the successful petitioner, a city messenger said that he received one hundred and seventeen pounds a year, and while the divorce suit was pending he paid his wife as alimony two pounds ten shillings a month. he had paid sixty-five pounds for his wife's costs, and still owed forty-five pounds. he had obtained an order for payment of his own costs against the co-respondent, but as that person was only earning a few shillings a week he did not know if he would get anything. judge lumley smith, k.c.: "does a successful husband always have to pay his wife's costs?" mr. seyd (for the defendant): "yes." judge lumley smith: "that is rather hard on him." the defendant added that while the suit was pending he had to borrow fifty pounds from his friends. judge lumley smith said a judgment debt must come in front of those of his friends, and ordered payment of one pound a month. this man could not have proceeded _in forma pauperis_, as by our then system this was not open to anyone with more than thirty shillings a week with no means above twenty-five pounds and clothing. if he had done so he would have had neither counsel nor solicitor to plead his cause and the only real benefit he would have obtained would be that he would not have had to pay court fees. the self-respect of working men in many cases hinders them from applying for assistance rendered nominally distasteful by the pauper taint. they manage these things better in france, and what the poor want in england, in fact as well as in name, is "assistance." the new rules that have come into force this year go a little way to provide this, but it is too early as yet to say how far they will meet the wants of the case. there was no need for any royal commission on divorce to explain to any reasonably educated citizen what ought to be done, but i agree that the labours of many good men and women have given chapter and verse for the want and the remedy in a convenient form. too much time was wasted over the moot points of the theologians, for most citizens are agreed that ecclesiastical opinions on the contract of matrimony as it affects the state are of the same value and no more as ecclesiastical opinions would be on such contracts as a bill of sale or a hire-purchase agreement, which may equally from time to time affect adversely or otherwise the moral conduct of human beings. "marriage is nothing but a civil contract. 'tis true 'tis an ordinance of god: so is every other contract: god commands me to keep it when i have made it." worthy john selden did not mean by that that it was to be kept for ever and in all circumstances, but that it was to be kept until such time as the law released the parties from it in the same way as every other civil contract. nothing is more true and necessary to be repeated in these days than the citizens' view of marriage law. whatever codes different religious men and women wish to observe they are free to follow. but the marriage law is a question of citizenship for citizens to settle for themselves. it is therefore satisfactory to read in the majority report that english laymen seem generally to base their views, not upon ecclesiastical tradition or sentiment, but upon general christian principles coupled with common-sense and experience of the needs of human life. it is the conclusion of these men and women--not the anathemas of priests--that want parliamentary attention. they have told us "that there is necessity for reform in this country, both in procedure and in law, if the serious grievances which at present exist are to be removed, and if opportunities of obtaining justice are to be within the reach of the poorer classes. so far from such reforms as we recommend tending to lower the standard of morality and regard for the sanctity of the marriage tie, we consider that reform is necessary in the interest of morality, as well as in the interest of justice; and in the general interests of society and the state." when shall we find time to ease these heavy burdens of the poor and let the oppressed go free? chapter viii flat-traps and their victims will you walk into my parlour said the spider to the fly 'tis the prettiest little parlour you ever did espy. the way into my parlour is up a winding stair, and i have many curious things to show you when you're there. will you? won't you? will you? won't you? walk in pretty fly. _nursery rhyme._ if we could remember half the wise saws and moral jingles that nurse and granny taught us in the nursery and not forget to act upon them in after life, what sensible citizens we should be! some day there will be cinematograph lectures to the young people just leaving the elementary schools, exhibiting not only the real spider, but his many human prototypes, who are lying in wait for the working-class man and woman at every corner of their career. a nature lesson an the smaller tally-man would be far more practical in a city school than a botany lecture on the lesser celandine. nevertheless, i doubt if it will do much good when it comes about. human beings are naturally divided into spiders and flies, and of the two the latter really have the best of it. there is not much fun to be had out of a cramped life in a dingy web counting your gains, even if a white waistcoat and a gold chain conceal your evil conscience. at least the fly buzzes round a bit and thinks he is seeing life before he biffs into the web. and no one need care much about the gay young sportsman bachelor variety--except perhaps his sweetheart, and she has a lucky escape, poor thing! but the silly old married fly who gets caught in the web and leaves a young wife and family starving at home, or, worse still, the house-mother fly who rushes into the web just to look at the spider's latest fashions which she knows her old bluebottle cannot afford--these are sad cases. thomas carlyle was mightily pleased with himself, i doubt not, when he hit upon that phrase describing his fellow citizens as "the twenty-seven millions, mostly fools." those last two words are constantly in the mouth of the odd fool in reference to the , , other fellows. still a long life in the county court compels me to the conclusion that the fool is not extinct; he is, indeed, but too prevalent. furthermore, the old world saying, "that a fool and his money are soon parted," is, like many another old proverb, a true saying. these being the facts, why does the law side with the inappropriate knave who preys upon the harmless necessary fool? scientific sociologists will no doubt tell me that if the law were to protect the fool the effect would be to increase and multiply the breed of fools, whereby the human race would become a bigger fool race than already it is. to which my reply would be that the law as it now stands makes the trade of knavery such a lucrative one that the business of it is fast becoming overcrowded, and the best hope of the extinction of the knave seems to lie in the fact that he will soon have to work nearly as hard for his living as the honest man. it is all very well to smile at the simplicity of the fool, and admire the cunning of the knave, but let us remember that the poor fool has in each generation to discover for himself that this is a world in which skimmed milk is constantly masquerading as cream, and that faith in the honesty of human nature in business affairs is in the poor man the first step on the road to ruin. i do not want the law to mollycoddle the fool and deprive him of the birthright of an englishman to make a fool of himself in his own way, but i should like to see the law doing more to stamp out the knave, especially--o, yes, especially--when he is a respectable, pious, well-to-do knave clothed in broad cloth and a well-boiled shirt, tempting the working man to part with his savings in the name of thrift and the preparation for the rainy day. what misery has been caused by well-advertised and wicked schemes of investment introduced to the working man by lying promises garnished with much prayer and psalm singing! if a chartered accountant could make out a balance sheet of the losses of the working class from frauds connected with building societies, insurance schemes, house-purchase companies, and the like, from the days of the liberator onwards, what a terrible indictment it would be of the way in which the law permits the rich knave to rob the poor fool! and yet how few of the promoters of these schemes arrive at their proper destination--the gaol. we open our prison doors readily enough to the poor debtor, but the rich man who lives on the stolen savings of the poor finds it as difficult to enter the gates of the gaol in this world as he will to reach the wicket gate in the hereafter. many societies have been formed under the limited liability companies acts offering working men facilities for buying their own houses or obtaining old age pensions or future lodgings in some glorious castle of spain. these have gathered in for years the savings of working men, and when the directors were called upon to redeem their promises it was found that the money had been spent in directors' salaries and commissions, and there was no provision whatever for the policy-holders. for as the law stands you may make nearly any wild promises you like, for that is not the contract. the contract is the long-worded, obscure policy which is sent to the workman later on. the gaudy booklet with its golden promises and pretty pictures of villas with bow windows which the poor man treasures up has nothing to do with the case. sentimental judges may try to find a way out; juries may give verdicts returning the poor man his money; but all to no purpose. the law stands firm for the solemn contract under the seal of the company, the policy which the poor man has never read and could not understand if he did; and the sleek directors chuckle at the angry working man, and with the blessing of the court of appeal remind him in shylock's own words: till thou canst rail the seal from off my bond, thou but offend'st thy lungs to speak so loud. and certainly as the law stands it is necessary to have a court of appeal stern and unbending in judgment to uphold the sacred nature of the contract. the doubt in my somewhat sentimental mind is whether transactions of this character between knaves and fools are in any practical business sense really contracts at all; and if they are to be deemed to be contracts whether power should not be given to courts of justice to release the victims from the flat-traps in which they have been snared, and give them at least some of their fur back again. this has been attempted with the moneylender, but not at present with very great success. for myself i have always thought that the moneylender, if he be a real moneylender and not merely a fee-snatcher, is by no means the worst setter of flat-traps. i have an uneasy feeling that if moneylenders were nonconformists or churchmen, instead of being jews, we should love them better. for if you get an actual sovereign from a moneylender you have at all events got some concrete thing that you can exchange for food and drink or clothing, and the token has an ascertained value; moreover, if you know a little arithmetic you know what you are paying for it. but if you buy clothing from a tally-man or a watch from a travelling jeweller, or a walnut suite from an instalment furniture dealer, or a family bible in parts from an area tout, you can have no idea whatever of the value of the thing purchased or the percentage of profit on the deal. and, though i should like to see all this class of trading done away with, and know that it causes great ruin and misery, yet to my mind the moneylender and even the lower class of tally-men are angels of light compared with the directors of insolvent collecting societies, who take the savings of the thrifty poor on promises that any sensible person must know to be incapable of performance. as i have shown elsewhere, the bulk of the smaller flat-trap poachers could be quietly exterminated by the abolition of imprisonment for debt. that alone is the artificial manure which enables these social weeds to flourish. withhold it from them and they would wither and die, and the world would be well rid of them. if the man in the street could listen, as i have had to do for the last twenty years, to tales of misery and wretchedness brought about by our absurd credit system he would understand something of my impatience at its continuance. i remember a small household that was ruined by a gramophone. a poor woman, a widow, earned twelve shillings a week, and a son was doing well at fifteen shillings a week. there were two little children. as things go in their world they were well-to-do. the devil, in the form of a tout, came down the street one saturday afternoon, with a beautiful gramophone. it was only a shilling a week, and all that was to be done was for mother and son "to sign just there at the bottom of the paper, and, of course, if they did not want to keep it they could send it back." however, later on, they found that they had signed to buy it; the boy fell out of work, the case was put in court, and judgment was entered against both mother and son in default of appearance for two or three pounds. then the son enlisted and went to india, and i first heard of the case when they brought the widow up on a judgment summons. i asked her why she had signed the guarantee, and her reply was: "tom was such a good lad and he was in work, and he was that keen to have it i couldn't deny him." anyone who has ever been any kind of a father or mother will not cast a stone at her for her folly. that is one of the short and simple tales from the annals of imprisonment for debt. what match are confiding folk like these for the lying scallywags who tout their inferior wares round the streets? and instead of our law remembering that we pray daily to be delivered from temptation, and playing the part of a father of the fatherless and a friend of the widows, it keeps alive section of the debtors act, , in the interests of about as low a class of knaves as ever disgraced the name of english trade. i know very well that there are many good honest folk who approve of imprisonment for debt and have fears about its abolition. these should remember that in france and germany and a great part of america there is no such thing, and yet trade does not suffer and the working classes do not starve. i should quite agree that if a man defrauds a tradesman by lying promises or cheating he should be punished, but imprisonment should be for fraud, not, as it is now, for poverty. as i have already pointed out, in america no honest man is likely to get into prison merely for the wickedness of owing money. we cannot say that is true here. in germany the working man lives on a cash basis. credit is not largely given, as there is no power of imprisonment for debt. england is the last civilised country whose law encourages the poor to live on credit, yet nothing is more true than this, that once start living on credit and you cannot get out of it. it is a downward path leading to the slough of despond. but until the law is amended we must be content to look on and see the poor in the cages of prison whilst those that set the traps and catch them wax fat and shine. and as soon as a boy or a girl begins to earn wages the evil one, in the shape of some kind of tally-man, is at his or her elbow with a watch, or a ring, or a family bible, or a musical instrument, or a shoddy sewing machine, the possession of which can be gloriously enjoyed on payment of the first instalment. i do not say that boys and girls must not buy their experience of the world and pay for it, but the law need not assist the knave in making it more expensive than is necessary. i have known several cases of young servants leaving good places and running off in terror because they have been served with a blue paper, "frightener" with a lot of law jargon about imprisonment upon it, threatening them with dire penalties because an instalment was due on a gold ring. more might certainly be done to prevent back-door trading, and there is no more reason why area touts should be allowed to infest the streets than the lower class of bookmakers. well-to-do people have very little idea of the number of firms that employ travelling canvassers and touts to hawk their wares from door to door in the mean streets. i remember once a fairly well-to-do working man--he was the doorkeeper of a public institution in manchester--had an action brought against him by a street tout because his dog, an airedale terrier, had bitten the prowling fellow as he was coming in at the back door. the man was badly mauled, and the dog having been proved to have bitten several other people of a like nature, i had, much to my discontent, to give judgment for the plaintiff. about a year afterwards--having forgotten all about the matter--i was visiting the institution where the defendant was employed, when, as the gentleman i wished to see was engaged, the doorkeeper asked me to step into his lodge and sit down and wait. "i've often wanted to see you, mr. porry," he began, "about that there dorg case." "what case was that?" i asked. "that case where you fined me five pounds over an airedale what tried to gobble up a tally-man." "i remember," i said doubtfully. "well," he continued, "you seemed to sympathise with me like, but you found against me. you see i had bought that dorg for the very purpose of keeping those fellows off the premises whilst i'm away. so i said if the law don't let 'im bite 'em, what's the use of the dorg? and what i wanted to arsk you was, may my dorg bite 'em within reason or did i 'ave to pay five pounds 'cause 'e mauled 'im too much?" i explained the law in relation to dogs and tally-men as well as i could, and my friend was good enough to say when i had finished: "well, i quite see you 'ad to make me pay as the law stands, but it don't seem to me just. if you can't 'ave a dorg, how can you keep them fellows out of the house?" that was more than i could answer. we parted friends--and there was, i think, a mutual feeling between us that the law of dogs in relation to tally-men was not all it should be. and many laws that are made for the best purposes are wrested from their beneficent uses by the wicked ones of the world and turned to the basest advantages. no legislation was hailed with greater delight by social reformers than the married women's property act, and yet one must admit that the fraudulent use of its provisions is a commonplace. i am not suggesting that it is mainly against the poor that it is misused, though i have known of cases under the workmen's compensation act where goods were alleged to be "in the wife's name" after an award had been made against the husband, and many a poor tradesman and small worker is swindled by this allegation, the victim not having the money to test it in a court of law, and the result being in any case so gloriously uncertain. i am sorry to put matrimony among the flat-traps, but the use of the married status among the dishonest to prevent a successful litigant from obtaining the results of a judgment brings it within this category. even the poorer classes themselves are beginning to make use of it as a kind of homestead law to protect their goods from execution. much as i am in favour of seeing the poor man's home protected to a larger degree than it is at present i do not care to see it achieved at the expense of the character of the occupants. any law that is a constant temptation to dishonesty is an evil, and there is no doubt that when the day comes for legal reform on a large scale, the various questions relating to the position of the married woman in the eye of the law will have to be considered. in many cases, of course, the reforms will be towards the enlargement of women's liberty, but in the matter of holding property it is clear that where a wife or a husband is tacitly allowing credit to be obtained on his or her appearance of property that property should be available to discharge the debt notwithstanding that it is claimed as the special property of one or the other. menander, the greek poet, in one of his comedies makes someone say, "to marry a wife, if we regard the truth, is an evil, but it is a necessary evil." if this was true in b.c. it became more convincingly the truth in a.d., when the married women's property act became law, and the "peculiar gift of heaven" was welcomed by the unscrupulous trader as a statutory stay of execution. since that day the micawbers of this world have put all their available assets "in the wife's name." the legal privileges of the married woman are not sufficiently well known. like "the infant" she is, indeed, the darling of the law. what a fine commercial spree an "infant" could have who looked older than his years and had an elementary knowledge of the law of "infants"! luckily they do not teach anything useful at educational establishments, and the "infant" never learns about his glorious legal status until it is too late to exploit it. but a married woman can, and does, have a real good time at the expense of her own particular tyrant, man. recently at quarter sessions a man was accused of stealing the spoons, and his wife was accused of receiving the property knowing it to have been stolen. but it was pointed out that it was one of the rights of a married woman to receive whatever her husband happened to bring home, and the judge directed an acquittal. there are several pretty little distinctions in the criminal law in favour of the married lady, but perhaps it is not seemly to advertise them overmuch. when we come to so-called civil matters, the lady who does not know and exercise her legal privileges is indeed a _rara avis_. how many of the debt-collecting cases in the county court are concerned with the good lady who runs into debt with the tally-man or other tradesman to the husband unknown? true, in many of these the husband has a possible defence, but the good man is generally a sporting, careless fellow, and pays his five shillings a month in the belief that debt is a natural sequence of matrimony. but when it comes to committing wrongs--or torts, to use the norman slang of the law--the married woman is the only legal personality that is privileged to forget her duty to her neighbour at someone else's expense. her unhappy husband is always liable for the damages and costs, although he may have done his best to hinder the wrong that has been done. if in his absence on the daily round the good lady slanders her neighbour's wife, or trespasses on her neighbour's garden to commit the further wrong of slapping her neighbour's infant, the husband, for the purposes of paying damages, is regarded by the law as being a joint offender. the law supposes that a wife acts under her husband's directions. when they told mr. bumble that, he replied in the immortal phrase, "if the law supposes that, the law is a ass--a idiot. if that's the eye of the law, the law's a bachelor; and the worst i wish the law is, that his eye may be opened by experience--by experience." it does seem a bit hard on the poor man certainly. if he keeps a dog the animal may have his first bite at his neighbour free of expense, and when he gets to hear about it he can send the dog away. but with a wife there is no question of _scienter_. you may not suspect that your good lady is given to slander, assault and such like indiscretions, but, if it so happens, you have to pay. nor do i see what steps you can take to hinder the lady from trespasses which she has the mind to commit. for if you were to place her under lock and key i believe a sentimental high court judge would grant her a _habeas corpus_ that she might go out again into the wide, wide world and exercise her undoubted right of committing wrong at her husband's expense. and i set down these disadvantages of husbandry as some sort of excuse for the meanness and dishonesty of the man who uses "his wife's name" to protect his assets and injure his creditors. i have in my mind a commercial married man auditing in his debit and credit mind the matrimonial balance sheet. "see," he says, "my liabilities under the law of husband and wife. surely there must be some assets of the relationship in which i am entitled to participate!" then he studies the married women's property act, and chuckles. whether this is so or not, there is no doubt that, since the act of , "everybody's doing it," and when the bailiffs come in the furniture and the stock-in-trade are always found to be "in the wife's name." it is a form of conspiracy, you would say, and the police should put a stop to it, but "old father antic the law" has his answer for you there--a wife cannot be guilty of conspiracy with her husband, for husband and wife are one. there was a story illustrating the prevalence of this custom in the precincts of strangeways, manchester. mr. isaacs, who had been absent from business for some time, returned to his workshop looking pale and white and very weak. a sympathetic neighbour put his head in at the door, and, full of pity, said: "dear me, dear me, you look very ill, mine friend. vot is the matter with you?" "ach," groaned isaacs, "i have had a terrible time, a shocking bad time." "vot vas it all about?" "i vill tell you," replied isaacs. "the veek before last two doctors came to mine house and took avay mine appendix." "bah!" muttered his friend contemptuously. "i vonder at you. that vos all you own fault: you should have put it in the vife's name. then they could not touch it." the story might be told in a scot's accent, or even a welsh one for that matter, and it would represent with equal truth the prevalent outlook of mankind on the commercial advantages of matrimony. i by no means desire to suggest that "the wife's name" is made a baser use of by the eastern communities of strangeways and whitechapel than among the fair-haired saxons of surbiton and chorlton-cum-hardy. there are many people who see no wrong in doing what is within the law, and there has always been a human tendency to score off one's brother man by a smart trick since the days of jacob and esau. the fool will always be outwitted by the discreet ones of the world, who justify their ways by reminding us that we are only bound to obey the letter of the law, and that there is no duty cast upon us to interpret and respect its spirit. and simple charitable folk will say that after all things may really be quite honest and straightforward, and it is only the stingy creditor who sees fraud and the ungenerous judicial mind that finds in the constant repetitions of a series of happenings an intention in the parties to whom the events occur to wrong their neighbours. for why should not john smith put over the door of his shop "j. smith," and how can the pleasant, careless fellow pay his debts in these bad times, and why do those wholesale curmudgeons press for their money and weary of john's winning smile and dangling tales of future payment? if creditors won't wait it is really very foolish in these days to sue for the money and put the bailiffs in. for friend john is away at the races and when they come and seize the stock and effects of "j. smith" there is mrs. smith, dear, good lady, to whom of course everyone knows, or ought to know, the business belongs. is not she a married woman? cannot she trade in her own name? is not her name over the door--well, not her name exactly, but her initial--her full name is jane smith--and as for her husband, he has never been anything but a servant of hers, and now she is going to run the business herself! in due course of evolution, no doubt, we shall breed this dishonesty out of the race, or else the kind of poor, simple tradesman who gives credit without inquiry will become extinct. at present there are quite a number of people who regard laws not so much as guides to good conduct, but as difficulties to be overcome in the obstacle race of life. a learned king's counsel, a well-known expert in bankruptcy and bills of sale, told me of an interview he had with a secretary of a social society who came to ask him to deliver a lecture. the secretary explained that their members were mostly cabinet makers and small furniture dealers, and they had a meeting and a discussion every month. the king's counsel agreed to come, and asked what sort of subject they would like him to speak about. "well," said the secretary, "our president, mr. x----, you may know him----" the king's counsel shook his head. "well, he has been bankrupt twice--i thought you might have met him. he proposed a very good subject, and the committee were quite pleased with it." "and what did he suggest?" "well, seeing we are nearly all interested in the furniture trade, he thought there would be a good turn up if you would come and lecture on the bills of sale acts and how to avoid them." and i suppose a brainy man, with a good wife, and, what is almost as rare nowadays, a good bill of sale, can live on nothing for about as long as it can be done. that candid poet, arthur hugh clough, pointed out many years ago that the ancient decalogue did not cover all our sinful modern ways, and amended the eighth to run thus: thou shalt not steal; an empty feat when it's so lucrative to cheat. and surely we may ask, why should this miserable cheat flourish among decent citizens of to-day? should not a man or woman be made to trade in his or her own name? in a business community it is almost impossible to make adequate inquiries before you start trading, and why, if you come to think of it, should an individual desire to trade in any but his own name? the frauds that are committed may not be very serious, but all forms of cheating and sharp dealing are detrimental to trade, and trade, after all, is the basis of our national pre-eminence. it seems particularly undesirable in a nation that prides itself on its domestic purity that "the wife's name" should be a symbol of dishonesty. if we cannot attain to a decent code of commercial morality without it we shall have to ask our four-hundred-pound legislators for yet another statute. "one man, one name, and make him trade in it," would be well received by all the honest, rich and poor, throughout the country. i have dealt at some length with this question of putting goods in the wife's name because i doubt if folk whose business does not take them into the county court have any idea how prevalent it is and what a very present help it is to the man who is living upon his neighbours by some semi-fraudulent business. every now and then the setter of flat-traps catches a victim too strong and lusty to remain in the trap. the shoddy gold watch is returned, the bogus business is thrown back on the exploiter's hands, the company promoter who has annexed the savings of the victim by false promises is sued for damages for deceit. in some of these cases by pertinacity and the spending of more money a triumphant judgment will be obtained by the fly against the spider. but there it ends. when the high bailiff visits the web he is politely informed that it is part of the wife's separate estate, every thread in the web is covered by a bill of sale, and if you try to imprison the old spider for debt you would find the greatest difficulty in proving his means to the satisfaction of the court. bankruptcy has no terrors for the old fellow. you will probably find that he has been there before and rather likes its old-world dusty crannies and the peaceable formulæ of its schedules and accounts. no doubt it is very difficult to draft laws that the wicked cannot wrest from their righteous purpose and use for iniquity. but the law plays into the hands of the knave by its verbosity and diffuseness and the great mass and complexity of it, which the knave studies with as great care and astuteness as the lawyers and judges whose duty it is, within the four corners of the law, to prevent his wrongdoing. when it is enacted "thou shalt not steal," the court knows where it stands, but that is a far more easy statute to construe than anything the parliamentary draftsman turns out to-day. if we could get a short statute of one clause, "thou shalt not cheat," with an appropriate schedule containing a tariff of fines and imprisonment, i think magistrates could do a good deal to cleanse the cities of a great many low ruffians who make their living by swindling the poor and make the law as it stands their attorney to collect the spoils. chapter ix poverty and procedure therefore i counsel you, ye rich, have pity on the poor. though ye be mighty at the law be ye meek in your deeds. the same measure ye mete wrong or right ye shall be weighed therewith when ye go home. * * * * * to the poor the courts are a maze if he plead there all his life, law is so lordly and loth to end his case; without money paid in presents law listeneth to few. piers plowman. we have moved along a little since the days of edward iii., and if piers plowman were with us to-day he would see no visions of "money paid in presents" to state servants, at all events not to the judiciary. bacon was the last lord chancellor who indulged this evil habit, and if, as his admirers tell us, he was at the time producing his own plays on sharing terms with impecunious actors, one can understand the necessity of it whilst condemning the practice. although we have made justice pure enough in this country and not directly purchasable, yet the rest of piers plowman's indictment is true enough of the present time, and law is still a maze wherein the rich are guided by the clever ones who know the way and the poor too often get lost for want of an honest guide. there are many signs that the public conscience is being slowly awakened to the iniquity of one side in a law suit having all the legal aid that money can buy and the other side nothing. in criminal cases something is already done and a beginning is being made on the civil side in the high court to give the poor legal aid. these reforms do not amount to very much as yet, but they are the first steps towards remedying piers plowman's grievances and, considering that it is less than six hundred years since that excellent visionary made his moan over the law and the poor, and the drawback poverty has in the procedure of the courts, there seems to have been no very unusual delay in government taking the matter up. we may at least congratulate ourselves that we have got a scheme of some sort which can be amended and put into a business shape instead of the select commission which reformers are generally offered to keep them quiet. old piers would be awfully happy--"bucked," i think, is the modern word--if he could know that after five hundred and fifty years we were tackling the problems of life that worried him so greatly. in another six hundred years or so a lot of the little matters referred to in this book will get smoothed out. if you can get into the habit of thinking of the world's progress in centuries instead of months you will find it very comforting. until more is known of these new schemes and their workings we must write of the present system as we know it, for any change in it will certainly be slow enough and it is something to understand the circumstances of the present in order to see what changes are really required. you may remember that george eliot in "the mill on the floss" describes mr. tulliver as saying, "that in law the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker. law was a sort of cock-fight in which it was the business of injured honesty to get a game bird with the best pluck and the strongest spurs." i do not say for a moment that mr. tulliver was right, but i think george eliot shrewdly described in his words the attitude of mind of the man in the street towards the high court of justice. cock-fighting was always a popular, cruel, and exciting sport, and now that it is done away with the next best thing is to squeeze into the divorce court and witness a real set-to between chanticleer, k.c., and young cockerel, who, they say, will be taking silk himself very soon and will knock the older bird out of the ring. certain it is that the poor have a notion, in which there is doubtless some truth, that the fact that the other side had a better and more expensive counsellor gave them a greater chance in the legal lottery. the side that can put carson on to bowl at one end and f. e. smith at the other must start at a better price than the side which has to rely on an unknown amateur in the back row. of course, a. n. other may take some wickets, but the public have a very business-like belief that money talks, and that the verdict of the jury, like most of the verdicts in life, will turn out to be on the side which can put in the field the most expensive team. certainly i can say without hesitation that working men would never have got their due from the workmen's compensation acts if each particular poor workman had had to fight for his rights at his own expense. it is to the trade unions and their co-operative litigation that the thanks of the workmen are due for preserving their rights under the act. mr. lysons was a pendleton collier, and had only worked for a few days when he received an injury. this happened in , and at that time the old act said that no compensation could be recovered until a man had been off work for two weeks. it was argued before me that this being so, unless a man was employed for more than fourteen days he could not come within the act at all. the argument did not appeal to me, but it did to the court of appeal, and later on again it did not to the house of lords. so the man got his money. but the point of the case is that had not the union come forward to take his case to the house of lords, lysons would have lost his compensation, and the act of parliament would have been construed to limit the rights of the poor for all time. this particular case cost the union six hundred pounds to fight, and the point in dispute was whether the injured man was, or was not, to receive six shillings a week for five weeks. several cases have run the same course. the act is obscurely drafted and capable of many interpretations. some of these that still stand on the books remain precedents only because the workman has not money enough to carry the case higher and has no union behind him. and, though in the first instance a workman might often make shift to state his case in the county court himself and rely on his own advocacy as to the facts and the judge's knowledge of the law, it is absurd to suppose he could argue a legal point in the court of appeal or house of lords without assistance. unless a trade union is ready to take up the case, the only hope of a man getting his rights is through the aid of a speculative solicitor. such a system has its drawbacks to the litigant and the profession, and leads to unpleasant and undesirable incidents, but it is no use shutting one's eyes to what is going on every day in every court. dodson and fogg have always been looked down upon ever since sam weller gave them away by blurting out in court that it was "a wery gen'rous thing of them to have taken up the case on spec. and to charge nothing at all for costs unless they got them out of mr. pickwick." no doubt it is very unprofessional to make such an agreement, but with the law as it is, and the poor with rights under the law, how on earth are they to get their rights unless there is a speculative solicitor ready to risk a certain amount of out-of-pockets in the hope of getting them back with advantages from mr. pickwick? unless a speculative solicitor is ready to back the poor man's case with gratuitous services and money enough for counsel's honorarium, surveyor's plans, doctor's and treasury fees, how can the case be launched at all? indeed, could one be certain that such a solicitor never undertook any case unless he was satisfied that his client had right on his side, should we not have to admit that the speculative solicitor was a ministering angel engaged in a practice of delivering the poor that cried, and the fatherless, and him that had none to help him? and as day by day the poor have more laws made to guide them into the way of righteousness, and more statutes are passed with the intention of making the life of the poor healthier, brighter, and better, and as, moreover, in this imperfect world the servants of the evil one are always prowling round to cheat the poor of their rights, it would seem to follow that if law courts and litigation are to be the order of the day we must each of us have a panel lawyer to whom we can go when we want an injunction and our _habeas corpus_ is not up to the mark. for years and years there have been speculative doctors. no one thought any the worse of doctors because they founded hospitals and gave their services free of charge and entered a _caveat_ against disease and death without first getting something on account of costs. and why should not we have legal hospitals and out-patient departments attached to the county court where the house physician is the young man who has taken the best degrees in law and the visiting surgeon is the great leader of the legal profession? the idea is no more ludicrous in one profession than it is in another. medicine has its noble traditions of charity. why should not lawyers set an example of self-sacrifice and unselfishness? or is there some subtle essence in the law that of necessity destroys the favourable microbes that promote peace and goodwill among men? we of the long robe of the inns of court have always held in theory that we were there to take on the protection of any and every suitor. please do not think when your attorney asks you for counsel's fees that you are hiring him by that golden nexus of guineas. by no means. no barrister can stoop to take wages or salary. what you are giving him is a mere gratuity, "which a barrister cannot demand without doing wrong to his reputation." and, that being so, one might expect some of the wealthier templars to take the ideal of their profession at its face value and set up to advise and plead for the poor not only without wronging their reputation by demanding a gratuity, but by refusing to accept one. in a recent case much was said of the noble attitude of barrister a., who, being a political opponent of barrister b., appeared for him when he had got into trouble--i use the phrase in no technical sense. correspondence ensued, and some enthusiasts for the honour of the profession said that every barrister was bound to take up a case if it was offered him. i wonder what would happen if lazarus went knocking at the doors of crown office row and pump court with a claim against dives, but without a gratuity in his hand? would he get anyone to advise him on evidence or settle the indorsement on his writ? one never knows. the atmosphere of our courts is not all that it should be. i do not refer to the physical fog which pervades them, the smells of which the electric fans blow about the building in the sacred name of ventilation, but the moral atmosphere of our courts always seems to me to suggest that the law is an appanage of the rich. by all means let us have dignity, decorum, and distinctive dress, but if you go into the high court, although you may hear the affairs of the poor dealt with sympathetically and in a just spirit, the atmosphere of the court is well-to-do and prosperous. everyone connected with the duties seems to belong to the upper middle class. there is no place at all for the working man to play his part except on occasion in the jury box. and then, if the claim is the claim of a poor man against a rich man, a special jury is empanelled and you get at a greater cost a tribunal of the defendant's own class to hold the scales of justice. and though i firmly believe that all do their best, and that speaking generally justice is well administered, yet i can quite understand the feeling of a poor man entering a court of justice and finding that the judge who lays down the law, the jury who decide the facts, the advocates who argue the case, and the solicitors who instruct the advocates are all drawn from a class of the community which the working man rightly or wrongly believes to be hostile to his outlook on life. if i have not made myself clear, imagine yourself bringing an action against a trade union, and finding when you came into court that a well-known ex-labour m.p. was on the bench, that the jury were chosen entirely from the working classes, and that you were only allowed to be represented by a next friend chosen from the ranks of a particular trade union. would you, under circumstances of this kind, even if you were convinced of the honesty and sincerity of every portion of the tribunal, feel that sense of security in its right decision which is so essential in a community where law should be respected? and that this is a real trouble and that the courts are aware of its existence was shown in a recent judgment of lord sumner in the court of appeal. a learned judge in the court below in correctly directing the jury as to the effect of the trades disputes act had "added some remarks pointedly expressed which were indirectly a criticism of the act and substantially a statement to the jury that a person who availed himself of the defence afforded by the act was setting up a dishonest defence." these remarks lord sumner described as "inopportune, detrimental to the defendant's case and, perhaps worst of all, irrelevant." he concluded with quaint sarcasm: "a judge in charging a jury could never safely indulge in irrelevant observations because he could not be sure that the jury would be sufficiently logical to take no notice of them." i intend asking the office of works to have that painted up on the walls of my court. it is worthy of letters of gold. irrelevancy is certainly the worst of sins and it is a natural vice in most of us only to be kept down by prayer and fasting from the practice of it. we all dislike some act of parliament; the insurance act, the ground game act, the finance act--none is so perfect that it has not some judicial enemies. and it is certainly very tempting when you meet the fellow in court to give him a bit of your mind. but it must not be. the legislature is our schoolmaster. outside in the playground and on vacation we can express our opinions about him freely, but in school--no! lord sumner is perfectly right and when he next speaks on this subject i wish he would point out with authority that this human habit of irrelevancy is the constitutional reason for maintaining the grand jury. for centuries the king's bench judges have worked off their natural irrelevancy in charging the grand juries at assize towns to the great benefit of themselves and the local papers. this national safeguard, this barrier between judicial irrelevancy and the public at large, should not be removed in a careless spirit. our forefathers knew a thing or two. the grand jury is really a sound instrument of constitutional mechanics. it is the safety valve for the blowing off of judicial steam. lawyers and judges are certainly held in higher esteem to-day than they were in the past. gulliver describing the contemporary lawyers to his friend and master, the houyhnhnm says: "there was a society of men among us, bred up from their youth in the act of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. to this society all the rest of the people are slaves. for example, if my neighbour has a mind to my cow, he has a lawyer to prove that he ought to have my cow from me. i must then hire another to defend my right, it being against all rules of law that any man should be allowed to speak for himself." in another passage he inveighs against judges in a strain of even coarser invective. "now your honour is to know," he says, "that these judges are persons appointed to decide all controversies of property, as well as for the trials of criminals, and picked out from the most dexterous lawyers, who have grown old or lazy; and having been biassed all their lives against truth and equity, lie under such a fatal necessity of favouring fraud, perjury, and oppression, that i have known some of them refuse a large bribe from the side where justice lay, rather than injure the faculty, by doing anything unbecoming their nature or their office." even in the extravagance and exaggerations of these passages must have diminished the force of the satire, but one must remember that under the old forms of procedure and law of evidence all sorts and conditions of chicanery were possible, and the search after truth was clogged and hampered by technicalities that made for injustice. crabbe, in "the borough," draws a picture of swallow, the lawyer, "a hard, bad man who preyed upon the weak," but he had sufficient insight into the reality of things to see that: law was design'd to keep a state of peace; to punish robbery, that wrong might cease; to be impregnable; a constant fort, to which the weak and injured might resort. and the main reason that the law in old days failed in a great measure to carry out its mission to protect the poor was the extraordinary mystery and obscurity of it. where law is a jargon of technicalities foreign to the business ideas of the people an immoral man who is a lawyer has an easy task before him to defraud the weak. in our own time the worst frauds committed by lawyers have been mortgage frauds where the deeds were deposited with solicitors who converted them to their own use. our land transfer system is a relic of the past; it is a mystery that no plain citizen can comprehend. it is necessary for him to employ a lawyer to carry out the smallest transfer of land and it is necessary for him to rely on the statement that the land has been conveyed to him and that the title deeds are in order. the technical obscurity of the transaction opens the door to frauds that would be impossible with a modern, businesslike, public land transfer department. and as technicalities in law and procedure were gradually abolished so we find the pictures of lawyers in contemporary fiction becoming less ignoble, though there will always be more romance in the story of a fraudulent lawyer leading a double life than in the career of a blameless practitioner who serves his clients honourably during office hours and returns punctually to his accustomed suburb at the appointed dinner hour. though we have done away with much legal fiction and cumbrous technicality we cannot greatly boast of the simplicity of our legal procedure. take the county court practice for instance. here is a court primarily designed to adjudicate on the simple disputes of poor people. there are two practice books. they cost over a guinea apiece, they consist of hundreds of pages and are absolutely incomprehensible except to the trained lawyer. this being so it is clear that the lawyer is as necessary to the poor man as he is to the rich. it is a sign of grace in the matter of procedure that whilst this chapter is in the writing we have some new rules issued about giving poor people assistance in high court actions. up to now the procedure _in forma pauperis_ has not been of practical benefit to the poor except in enabling an occasional important appeal to reach the house of lords. it is too soon to say whether these new rules will meet their object. shortly, the scheme is that a poor person--meaning one who can satisfy the judge that he is not worth fifty pounds--will have counsel and solicitor assigned to him from a rota. after that his case will be conducted free of costs or fees. if he succeeds the solicitor--but in no case the counsel--will get costs. much depends of course on the spirit in which this is worked, but it only refers to the high court--which is not, speaking generally, the poor man's court--and it seems unlikely on the face of it that a scheme of this kind, with no one in particular to look after it and advertise its existence, will do away with the undesirable activity of the speculative solicitor. one wishes it well, but except perhaps in relation to divorce cases it does not appear on paper to be of great practical use. the fact is that it is not a very hopeful thing to go to lawyers and committees of lawyers for reforms unless you have the driving power of the business man behind them. nothing was to be more disastrous according to legal prophecy than the institution of the public trustee. no reform has done more to mitigate domestic worries and anxiety than this beneficent institution. lawyers and laymen nowadays concur in casting their troubles upon him and sheltering themselves and their clients beneath his protecting wing. if we are ever to have a proper system of legal advice for the poor it will, i think, have to be made an official department with a business head of affairs and attached lawyers. it might perhaps be added to the duties of labour exchanges, but in any case it should be a department of the board of trade, and it should have branches throughout the country and power to help the poor in all the courts of the country. a device for suing _in forma pauperis_ working only in london, such as is set up by the new rules, cannot be of much avail in tackling the problem of placing legal advice and assistance at the call of the poor. i wish some experiments of a voluntary nature could be made of a more extended character than the poor man's lawyer societies that are attached to university settlements, and do good work in advising the poor. it is really in court that a poor man wants assistance. i often think that a poor man or woman coming into a court for the first time is like the average middle-class englishman when he finds himself on calais pier without a word of french speech at his command and entire ignorance of the ways of the _douane_. how he clings to a friendly interpreter with a gold band round his hat. how extravagantly he rewards him when he and all his luggage are at length safely in the train. and why should not we encourage an amateur legal interpreter in our county courts just as we welcome missionaries in our police courts. i should like to see practising in each court an official friend of the poor, ready to state the case of a poor man or woman who sought his assistance. there is an existing section of the county courts act allowing a friend to appear for anyone by leave of the judge if he does not do it for fee or reward, and on that foundation something might be built. i remember a clergyman, father gething, appearing for an old army pensioner against an insurance society with complicated rules, and asking to be allowed to address me, and conduct the old man's case. sir william cobbett, not having in his mind for the moment the section i refer to, objected. i asked father gething whether he was going to recover any "fee or reward" for acting in the case. "certainly not," replied the reverend gentleman. "but perhaps," i continued--somewhat mischievously--"sir william is going to contend that the word 'reward' in the statute means not only reward in this world, but the next." sir william smiled and shook his head at me in dignified reproof. he was not going to argue this, and with his very good will and assistance the clergyman conducted the case, and in the end secured a victory. in the army courts-martial a prisoner is always allowed a friend to advise him and to take a limited part in the proceedings, and i cannot help thinking that long before the poor man has his panel lawyer voluntary charity will be allowed to supply him with a "friend," who shall be trained in the law, but ready to give his services to the poor without fee or reward. many will think that the suggestions that i have sketched out of assistance to poor people are chimerical and that in any case they are likely to be costly and that the grievance, such as it is, is not worth the money to be spent on the remedy. at one time i seem to be calling out for no lawyers and here i am demanding more lawyers. the inconsistency is only apparent. in all legal reforms i place in the forefront conciliation. i want to see the french "preliminary of conciliation" applied without delay to all small cases and i want the judge of the county court to be clothed with the duty of the french _juge de paix_, whose business it is, in the first instance, to bring the parties together and get them to shake hands. only when that fails, or in those cases where litigation is essential and necessary to the proper determination of a real dispute, should i ask the state to assign counsel and solicitor to the poor. if a poor man has an honest suit with a rich man it should be a point of honour with the courts to see that he is not at a disadvantage in their procedure. but merely providing a poor man with lawyers will not alone work the miracle. money must be found to pay his witnesses and prepare his case, and this is even more necessary in civil cases than in the defence of prisoners where, as we shall see when we come to consider criminal matters, the state, whilst providing legal aid, has stopped short of providing what may be still more necessary, financial assistance for necessary evidence, some of which may be of an expert and expensive character wholly out of reach of a poor man. piers plowman naturally threw the whole blame on the lawyers who went about, as he said: pleading the law, for pennies and for pounds, unlocking their lips never for love of our lord. but i cannot for myself see why a lawyer or a doctor should work for nothing any more than a business man or an author, and, if we knew the truth, i expect we should find that old piers himself invented his vision as much in the blessed hope of royalties as "for the love of our lord." i do not want charity for the poor in our legal procedure, nor do i wish to see litigation multiplied by cheap remedies. on the contrary, i want every effort made to cut down litigation to a minimum, but when a lawsuit takes place i want it to be a fair fight and no favour, with each side equally well equipped for the fray. chapter x crime and punishment the penal laws of the british empire are, by foreign writers, charged with being too sanguinary in the cases of lesser offences. they hold that the punishment of death ought to be inflicted only for crimes of the highest magnitude; and philanthropists of our own nation have accorded with their opinion. such persons as have had no opportunity of inquiring into the subject will hardly credit the assertion that there are above one hundred and sixty offences punished by death, or, as it is denominated, without benefit of clergy. anthony knapp and william baldwin: preface to "the newgate calendar," . the progress we have made in the reform of criminal law in the last hundred years is really remarkable. in very recent days we have at last allowed the prisoner to give his evidence of the matter he is charged with if he desires to do so. we have, under certain restricted conditions, supplied him with legal assistance, and, best of all, there is at length a court of criminal appeal. it is interesting and encouraging when your mind has a bent towards legal reform to see how past reforms have come about. as recently as prisoners accused of felony were not allowed counsel, and the rev. sydney smith, who had a winning way of stating the case of the law and the poor in his own day, was pleading in the _edinburgh review_ for a reform of this matter. one would have thought then, as one often thinks now, that a mere statement of the issue would have been sufficient. this is a picture of things as they were. "there are seventy or eighty prisoners to be tried for various offences at the assizes who have lain in prison for some months; and fifty of whom, perhaps, are of the lowest order of the people, without friends in any better condition than themselves, and without one single penny to employ in their defence. how are they to obtain witnesses? no attorney can be employed--no subpoena can be taken out; the witnesses are fifty miles off perhaps--totally uninstructed--living from hand to mouth--utterly unable to give up their daily occupation to pay for their journey, or for their support when arrived at the town of trial--and if they could get there, not knowing where to go or what to do. it is impossible but that a human being in such a helpless situation must be found guilty; for as he cannot give evidence for himself, and has not a penny to fetch those who can give it for him, any story told against him must be taken for true (however false) since it is impossible for the poor wretch to contradict it." and yet, absurd as it seems to us to-day, the prisoner's right to counsel was not obtained without a severe struggle. at the back of the mind of those who opposed the reform was the idea that as prisoners were accused by the crown it was an act of disloyalty to defend them. ridiculous as that idea is it still exists in a form that is interesting only as showing that the tradition was once a reality. a king's counsel has to obtain leave from the authorities, and pay a small tribute therefore, before he can appear for a prisoner and against the crown. leave is never refused, but the existence of such a curious custom is only comprehensible by studying the folklore of the subject. a hundred years ago this folly sanctioned by antiquity was a reality. the defenders of the position said it was really all done in the interests of the prisoner. his witnesses were not put on oath, and this allowed them to tell any falsehood they wished; he was saved the expense of his counsel--as though he preferred economy to hanging--and the judge, he was told, was his counsel--an arrangement that the prisoner cannot have been very grateful for when he heard his counsel on the bench summing up to the jury for a conviction. the nonsense that was talked and written on this subject is encouraging to those who want things done to-day. against all reforms, arguments of this kind have to be listened to and laughed out of court, but to-day we are in a better position than sydney smith was, for we often find in the official world a human being ready to help on a reform when the time is ripe for it. in his day common-sense and common humanity had not permeated into government offices, "the attorney-general and the solicitor-general for the time being always protesting against each alteration and regularly and officially prophesying the utter destruction of the whole jurisprudence of great britain." it was not until ten years after the _edinburgh review_ article was written that parliament in august, , passed an act to permit prisoners charged with felony the right to be defended by counsel. and yet there are many people who think we move too fast in necessary reforms. sydney smith mentions as one of the injustices to the prisoner his inability to give evidence. this remained a disability until our own time and was only removed with great difficulty and against the advice of many learned lawyers. the folklore of the subject is quite entertaining. our ancestors considered, from introspective knowledge of themselves and their neighbours, that no one with any interest in a dispute was likely to speak the truth about it, they therefore did not allow the parties to a suit to give any evidence at all. this was the old law in both civil and criminal cases. thus you may remember that in the great case of _bardell_ v. _pickwick_ neither plaintiff nor defendant gives evidence, because in law at that date they were not competent witnesses. the inconveniences of this in civil matters was patent to everyone but the lawyers. writing on the incompetency of witnesses to give evidence, bentham said with some humour, "in the bosom of his family the lawyer by the force of good sense returns to the simple method from which he is led astray at the bar by the folly of his learning. no one is so deeply tainted with his judicial practice as to apply its rules to his domestic affairs. if you would represent madness--but a madness where all is melancholy and unintelligible--you have only to imagine an english barrister carrying into ordinary life the fictions, the rules, and the logic of the bar." certainly we cannot believe that when sergeant snubbin returned to his house and found a dispute raging between his cook and his butler that he tried to find out the truth about it without hearing what either of them had to say. in when county courts were established, the parties and their wives were allowed to give evidence, and so obvious were the advantages of this that in lord brougham passed the evidence amendment act extending the system to other courts. the only thing that surprises us to-day is that there could ever have been any question about the necessity of allowing parties to give evidence if it was really desired that they should have justice. but we still clung to the right of the prisoner to keep his mouth shut, and in our insular way boasted of his privilege. thackeray is horrified by the examination of the prisoner in the ordinary french way. "in england, thank heaven, the law is more wise and merciful!" he sees in the french government advocate an official seeking in every way to draw confessions from the prisoner to perplex and confound him and to do away with any effect that his testimony might have on the jury, and he thanks heaven openly that we should "never have acted as these frenchmen have done." what really troubled thackeray's patriotic mind was the indecency of asking the prisoner any question at all. victorian englishmen of all grades were peculiarly proud of our criminal administration of justice and considered the privilege of the prisoner to keep his mouth shut was the keystone of the edifice. dickens approached the matter more hesitatingly: "i wonder," he writes, "why i feel a glow of complacency in a court of justice, when i hear the learned judges taking uncommon pains to prevent the prisoner from letting out the truth. if the object of the trial be to discover the truth, perhaps it might be as edifying to hear it even from the prisoner, as to hear what is unquestionably not the truth from the prisoner's advocate. i wonder why i say, in a flushed and rapturous manner, that it would be 'un-english' to examine the prisoner. i suppose that with common fairness it would be next to impossible to confuse him unless he lied; and if he did lie i suppose he could hardly be brought to confusion too soon." this being the victorian attitude in the matter it was hardly to be wondered at that the reform was delayed until our own day. yet i doubt if anyone conversant with the criminal courts would doubt that although there are cases where it has been to the disadvantage of the guilty to go into the witness box, it has been of enormous value to the innocent that he can give his own account of things to the jury. there are three recent acts of criminal law reform which have done much to safeguard the interests of innocent men, especially if they are poor. these are the criminal evidence act, , the poor prisoners defence act, , and the court of criminal appeal act, . if we could have such an outburst of legal reform every ten years in other subjects we should be doing well. but it must not be thought that these reforms were obtained without trouble. each was strenuously fought, year by year, for many many years before the energy and patience of the reformers were crowned with success. one would have thought that the claim of a citizen, charged with a criminal offence, to give his account of the affair to the jury, if he wished to do so, was one of those matters of elementary justice that could hardly be contended against at the end of the nineteenth century, but the fight against this privilege was really a very strenuous one. twenty years before the reform actually came the bill had been read a second time in the house of commons by a majority of , showing, at all events, that the lay mind of the country had no doubt about what should be done. in each succeeding year, when any new offence was created by act of parliament, there was a special clause put in to enable a prisoner to give evidence, so that at length there were some thirty or more acts giving a prisoner the right to give evidence. this made the state of the law, as lord herschell said, "utterly indefensible and ridiculous." we were living under two competing systems, whose constant absurdities were made manifest in the courts; thus, if a man was charged with forging a trade mark he was a competent witness, if he was charged with any other forgery his mouth was closed. curiously enough, owing to the irony of our party system, it was the conservatives who brought in this reform and the radicals who opposed it. it was left for sir richard webster to point to the progress of all the states of america, and the experience of our colonies, and to ask that we should not lag behind in the good work of reform. that sturdy radical, mr. pickersgill, was shocked, and elaborated the quaint argument that an innocent man should be debarred this privilege lest he might be an ignorant person who would tell lies, and get confused and muddled, thereby prejudicing his chance of acquittal. a large body of influential legal opinion was adverse to the bill, and in the division lists voting against the reform you find the names of sam evans, john morley, w. s. robson, lawson walton, and other well-known liberals. it is one of the crosses that a legal reformer has to bear that only through the services of one or other of the great parties in the state can he hope to see his pet dream materialise and there seems a certainty that, if one party is converted to a proposal, the other party makes a point of being diverted by it. over and above that unhappy difficulty to progress there is the certainty that the lawyers, as a profession, will always offer a strong opposition to any proposition of legal reform, and, when this is defeated, will fight strenuous little rearguard actions to cripple and delay it. the poor prisoners defence act met with less opposition. it was a comparatively small affair, and there were a few fees in it. mr. justice grantham--whose merits as a friend of the prisoner and a humane judge are often lost sight of in remembering his daring dives from the bench into the sea of politics--this good judge was a keen supporter of the movement for the better defence of poor prisoners. he thought the magistrates ought to ask the prisoner what his defence was, and tell him that, if he would state it, they would do all they could to assist him in proving it, and that, if he wanted evidence, they would adjourn the case and get evidence. his ideal was that the magistrate and the police should assist a man to prove his innocence, and that any sort of reasonable defence should be followed up at the public expense. the letter of the act, however, only gives the poor prisoner a solicitor and counsel and a copy of the depositions. no doubt the best is done for him that can be under these conditions, but it is not the same quality of legal defence that a rich prisoner can obtain for money. naturally, counsel who take these cases are not men of the greatest experience, and the defending of prisoners is a difficult branch of the act of advocacy. a story is told of a scotch prisoner, who had economically pretended he was without means in order to save counsel's fees, calling out in agony as he heard his defender addressing the jury in a very unconvincing manner: "young mon, if ye'll sit doon at once i'll give ye a feeve poun' note." although the act is not everything it might be, yet, undoubtedly, it is a move in the right direction and capable, under sympathetic administration, of doing much good. the criminal appeal act of has proved itself of such value already that it becomes the more amazing to read of the difficulty experienced in getting it on the statute book. all manner of legal interests were banded together against it. one of the two learned king's counsel who moved its rejection in the house of commons solemnly declared that the cost of taking shorthand notes and the expense of bringing a prisoner to london from the north of england appalled him and, in his view, "the machinery of the bill must inevitably break down ... it was absolutely unworkable." the second uttered mournful prophecies of ruin: "to substitute," he said, "this most costly machinery for the present system would deprive our criminal courts of their principal glory in the deep sense of care, caution, and responsibility which was pervading the atmosphere of every criminal court in the country at the present time." many people seemed to think that juries knowing there was an appeal would take less pains and care in their duties. but a jury in a criminal case is a body of citizens called together on a special and solemn occasion to do a serious duty and the fact of appeal or no appeal would have little effect on their conduct. it was the slackness of some of the judges rather than the possible carelessness of juries that wanted looking to, especially in courts of country quarter sessions where the shorthand writer and the court of criminal appeal were bound to exercise a good influence. nothing tends to good judicial work more certainly than publicity, a shorthand note, and a strong court of appeal easily available. although the criminal law has in the main been fairly administered and equally enforced against rich and poor there are certain classes of laws which have often, no doubt from worthy motives, been used as engines of oppression against the poor. of these the blasphemy laws are a standing example. dr. johnson tells us that: "laws are formed by the manners and exigencies of particular times and it is but accidental that they last longer than their causes." this is not altogether true. the fact is we have no summary machinery for removing decayed and obsolete laws from the statute book. we want a legal lethal chamber for these old die-hards, these laws against sabbath breaking and blasphemy and other old world wickednesses. a rich man may break as many sabbaths and blaspheme at his will but he is never prosecuted for it. in the days of that great and good reformer, charles bradlaugh, the blasphemy laws were made use of to stifle the poor in the expression of their opinions in a very shameless way. only last year a man was imprisoned under them in circumstances which gave rise to a good deal of uneasiness. he was no doubt an ill-mannered and unpleasant person, but ill manners and unpleasantness are not crimes, and to make use of these old blasphemy laws, to lock up the poor blasphemer only, is one of those things that does extensive harm by giving the blasphemer new fuel for his blasphemy, not only against the sacred things he does not appreciate, but also against the law which he finds ready to do injustice for the protection of these holy mysteries. this again, like many of the things which we may reasonably complain about in what is, as the world goes, a humane criminal law, is one of the matters handed down by our forefathers which we have not had time to set right. in the old days unitarians and others were burned alive. fuller in his church history says: it was found that "such burning of heretics much startled common people, pitying all in pain and prone to asperse justice itself with cruelty because of the novelty and hideousness of this punishment.... wherefore king james politickly preferred that heretics hereafter, though condemned, should silently and privately waste themselves in prison." and that is what all heretics ought to do to-day if the law were equally administered, but as a matter of fact these laws are only put in force against poor, noisy people who preach their doctrines in the market place, and are a dead letter against those who preach the same doctrines on hand-made paper bound in morocco. i can quite believe that a bye-law to hinder one man saying coarse and ill-mannered things about another man's religion in open spaces might be a reasonable police proposition; but there must be free trade in these things and the established church must not have a preference. moreover, such a law must not be extended to pulpits or printing presses or much interesting theological polemics would be lost to us. for the blasphemy laws in the twentieth century, protecting only one form of religion and set in motion only against the poor, nothing can be said. foul language and obscenity can and are punishable in other ways, and the cause of religion is poorly served by being protected by laws which are only set in motion when the well-to-do are annoyed by the vulgarity and ill-manners of the poor. there is no gainsaying that once in the dock all men are equal or very nearly so, but one may harbour a suspicion whether all men have equal opportunities of getting there. theoretically, the dock, like the bench and the cabinet and all other british institutions, is approached by an ever open door; but in practice more goats wander through the opening than sheep. yet your sheep is a born trespasser. there are some who believe that his immunity from punishment is due to the wool on his back. i doubt if this is altogether true. crimes of violence and brutality are naturally the crimes of the less fortunate of mankind, and your sheep is more peaceably disposed than your goat. but when we come to the more modern crime of swindling we find that the criminal law is not very successful in punishing the fraudulent well-to-do. fraud is a more complicated offence than larceny, and defrauders sometimes get the better of the law. cheating is not always a crime, and successful cheating is a question of better education. that is why the rich so often keep out of the dock. the law is somewhat old and decrepit, and the modern well-to-do swindler is very much up to date. therefore i fear it is as true to-day as it was in the days of lord chief justice coke, to say that the law "maketh a net to catch little birds and letteth the great ones go." if you cast your eye down the police news you will many times come upon the case of a low-down man or woman who goes round collecting for a mission that does not exist, thereby cheating the well-disposed of a few pounds or shillings. it is quite right they should be run in and sent to prison. they are pests stealing money that would otherwise relieve real distress. but if they had had a little more money, and hired a house in some remote place, and kept half-a-dozen real orphans there, and called it the st. anonymous orphanage, they might have collected as many thousands a year as they liked for their excellent charity, and no one would have worried them by asking how the orphans were looked after, nor would anyone have wanted to know how much was spent on the orphanage and how much on the founder and his family, and their houses and carriages and furniture and upkeep. the poor orphan has many uses in the world. one of them is to enable the swindler to found orphanages and make his living thereby. at first blush the crime seems the same as that of the house-to-house cadger who gets six months, but note that the uneducated man has told a lie and made a false pretence of an existing fact. the good founder of st. anonymous's never did that. he had an orphanage with real orphans in it. true, there were not very many of them, and the orphanage was rather a stuffy, insanitary sort of place, though photographed on end it looks imposing enough. and that is the _mot juste_, as the french have it; that is what the orphanage was, and what the good founder was--imposing. if you tell no actual fibs the law does not mind you imposing as much as you like. you may transfer the savings of the working class into your pockets by promises of the wildest character and schemes of the silliest and most romantic sort, and if you do it successfully enough the nearest you will ever get to the dock will be a seat on the borough bench, from which altitude you may sentence the poor, mean criminal who never had any capital, and had no one to advise him as to the law of false pretences. this is not a fancy picture. there was at least one such a magistrate on the bench once, and for aught i know there may be some j.p.'s to-day whose wealth has been made by stealing the savings of the working classes within the law. certainly in this country we have been free from the subordination of the criminal courts to the power of gold that is said to exist in other civilised places. any preferential treatment that exists is of a class character--snobbish if you will, but not corrupt. as an irish barrister said to me at liverpool--he was a great home ruler with a grand hatred of england and a real affection for many englishmen: "my dear parry, you'll never convince me that the government ever meant to hang mrs. maybrick. they're a cowardly lot of snobs, and anyhow they couldn't hang a woman they might have to meet out at dinner afterwards." and there is undoubtedly running through all our english institutions, even the administration of the criminal law, a certain amount of class snobbery which it would be better should be eliminated. judges and magistrates are, of course, only human. the wrong doing of a man or woman of our own class naturally appeals to our bump of forgiveness more readily than that of a slum dweller whose temptations and environment we know nothing about. thus we can remember cases where lady shoplifters were discovered by eminent physicians to be suffering from some extraordinary form of neurasthenia--not insanity, of course--but one of those nervous breakdowns that made an acquittal and a rest cure in a nursing home the only appropriate course. magistrates seem to grasp the medical facts about these well-to-do unfortunates almost too readily; but had it been a drunken woman snatching a pair of boots from a shop-nail in the street no eminent physician would have diagnosed her peculiar form of neurosis. even if her husband had tendered evidence that of late the poor lady had been strange in her manner, he would scarcely have been listened to with much sorrowful attention. the good magistrate would have felt bound in the interests of the poor tradesman to make an example of this criminal. such cases are not cases for acquittal, and the rest cure is generally three months hard. there are certainly too many cases where the wealth and position of a prisoner leads to favoured treatment in the criminal courts. i am glad to note that these are always pilloried in the press and publicity is given to them, and in a way nothing could be better because it is the open door that has done so much to keep our courts free from the taint of any suspicion of real corruption. i firmly believe that when these cases do occur they are generally the outcome of a spirit of humanity on the part of the presiding judge coupled to a certain extent by a class feeling of tenderness on account of the terrible downfall of a man or woman in his own social position. such cases, too, are rare. no special note is taken of any case where the law takes its ordinary course and the rich criminal is treated in the same way as his poorer brother. these are, of course, the great majority, and there are also many cases i am glad to know where leniency and mercy is extended to the poor criminal and he is helped by societies and personal aid to regain his position among honest men. but with all this the poor man can point to too many instances where rich hooligans running amok with a motor car in regent street or assaulting the police on a racecourse are let off with a fine. here is a curious case from the london sessions that is bound to cause a lot of talk in the mean streets. a fashionably dressed young man was indicted in an admittedly false name, and was allowed to use it for the purpose of the proceedings, and pleaded guilty. he had obtained a sable stole, value £ , from a costumier in shaftesbury avenue by false pretences. he had opened an account at oxford. he received a cheque book and then withdrew his money and closed the account. he used to obtain goods which he paid for with cheques on the oxford bank, and cheques to the amount of £ , _s._ _d._ had been returned marked "no account." a detective said he was a young man leading a fast life. the city police had a warrant for him for obtaining a ring value £ and a gold watch £ . these articles it is true were returned. the oxford police had a warrant out for him and when arrested he was attempting to obtain a valuable fur article in dover street. his counsel urged that his parents were people of respectability and integrity who had suffered losses, and the young gentleman was trying to keep things going in the same style he had been accustomed to, and had come under bad influences. that is the whole story, and the report ends, "the defendant was bound over, the magistrate remarking that there was no need to cause his relatives to suffer by mentioning his name." how many poor men and women whose children have been taken away from them for long terms of years to a reformatory or sent to gaol for months with hard labour, to the knowledge of all their neighbours, will read that report, and what will they think and say of the justice of our criminal law? one pities the parents and relatives of this particular young criminal waster as one pities the parents of all children and the children of all parents when one or the other bring disgrace or ignominy on the home--but why is this one particularly undesirable swindler to be allowed the privilege of an alias in an indictment, and why is his name alone among all the prisoners arraigned at the sessions to be kept from the world? and how hard it will be on some youngster of like criminal tendencies when he comes before a court where harsher methods prevail, and he finds that not only is his name brutally noised abroad, but offences of this character are deemed worthy of imprisonment. one would not wish to say a word against leniency to the young however much it may savour of class-tenderness, but the concealment of a criminal's name on his trial because his parents are well-to-do and respectable, is just one of those things that the poor people treasure up and quote as an instance of the law's unfairness. at a time when every effort should be made to impress on the poor the impartiality of the law little cases of this kind, arising no doubt from motives of kindness and humanity, are exaggerated and quoted as typical of our criminal administration--which assuredly they are not. in cases where the whole of the resources of the state are against the prisoner fair play demands that everything that can be done for him without detriment to the demands of justice should be done. in a case of murder which created a great sensation this year, the whole evidence turned on identity. several witnesses came to the police and said they had seen the victim, a child, in company of the prisoner. other witnesses had stated to the police that they had seen the victim in company with a woman. during the examination of the police inspector in charge of the case he was asked by the defence for these statements, the magistrate expressed his opinion that they should be shown to the solicitor for the defence, but the counsel for the crown, a gentleman of very wide experience, "suggested that the proper thing for the solicitor for the defence to do would be to go and see the people." i do not for a moment say that the learned counsel was inaccurate in his statement of a legal proposition. it may be that such is the law; but if it is what does it mean? the police have honest statements of citizens in their hands suggesting that a man has committed murder, they have equally honest statements from other witnesses that the murder has been committed by a woman. however mistaken they may believe the latter statements to be, surely fair play demands that the prisoner should have access to these statements for what they are worth. after all he is at present to be deemed an innocent man, he is not even committed for trial, and he is a citizen with as much right to the protection of the police as any other. if they have statements going to prove his innocence he ought to have access to them and be told who has made them so that he and his solicitor can see how far they help to prove his case. but no, that is not the official view. counsel for the crown no doubt states it correctly. the proper thing is for the solicitor for the defence to go about at the expense of the poor man he is defending and find these people out and take statements afresh. it is a denial of justice, the man has not the money to do it, his solicitor is not a charitable institution, and even if he were he probably has not money and staff for such work. in this particular case the whole of the police had scoured london for evidence to clear up the mystery. surely when a citizen was charged with the offence public interest demands that the matter that has been discovered that goes to prove innocence should be as readily available as matter that goes to prove guilt. the present practice is to my mind a tradition, handed down from the bad old days, that needs to be swept away. we ought to free our criminal law from any shred of suggestion that the state is out to obtain a conviction rather than an acquittal. the state is only interested in the truth and justice of the verdict, and a true verdict obtained by methods of injustice is a crime against the community. much might be said on the inequality of punishments. the question of the advisability of corporal punishment is one upon which people hold strong and conflicting opinions. i am not a sentimentalist on this subject. i am told by some quite sane and scientific thinkers that for men, women and children of the hooligan class who have a mania for violence and destruction it is probably the most appropriate form of punishment. its good qualities are that it is cheap; it is soon over, but irksome whilst it lasts; and it is said to appeal to the homeopathic instincts of the hooligan class who recognise the justice of meeting violence by violence. against these positive merits it is very unequal in its incidence; one victim will suffer more than others over the same punishment; and it is brutalising, in some measure, to the flogger and floggee. too much may be made of this last argument, for nothing can be more brutalising and deadening to all hopeful and better instincts than long terms of imprisonment. on the whole, my instinct is against flogging, because i am an optimist and believe that though it has had its uses in the past as an educative influence we have come to a state of civilisation when we should abolish if possible all violent or cruel punishments. there was a lot perhaps to be said for thumbscrews in their day, but that day is admittedly over. my grumble about the cat-of-nine-tails and the birch is not so much that the law should put them in the cupboard once and for ever, but that if they are to be used at all, their lashes should, like god's good rain, descend on rich and poor alike. take the crimes for which flogging is permissible punishment to-day. for adults there is garrotting, offences under the criminal law amendment act, procuring, etc., and being an incorrigible rogue. for lads under sixteen, stealing and malicious damage. now the first objection to these punishments is that whether flogging is or is not to be administered depends altogether on the taste and fancy of the presiding judge. some think it is an advisable form of punishment; others view it with disfavour. this element of human lottery in the administration of the law should surely be kept under as far as possible. out of a hundred and forty-five criminals convicted of robbery only three were flogged. an intending robber therefore who studies judicial "form" in the statistics will see that it is about fifty to one against the cat, and if he is the one unfortunate surely he has a distinct grievance against the forty-nine lucky blackguards who escape. when only three criminals receive this punishment in one year it is worth while considering whether it should be continued, or, if it is to be continued, whether it should not be extended to crimes against women and children and other nameless horrors. highway robbers to-day are all of the lowest and the poorest, but in the other category of crime there are sometimes men of means who find their way into the dock. if it ever comes to be recognised, as butler in his beautifully prophetic account of the land of erewhon would have us believe, that crime is a disease and should be treated by a family straightener, as we now call in the doctor, then all doubts as to corporal punishment will disappear. the erewhonians when they had lapsed from the path of honesty took, under their doctor's advice, a flogging once a week and a diet of bread and water for three months on end with the same heroism and resignation with which we undergo a cure at harrogate after a london season. once recognise that the birch rod is a cure for dishonesty, violence, and malicious injury to property, then all sensible men and women afflicted with these tendencies would welcome the cure and visit their straightener as they now visit their dentist. but at present we are far from the realisation of these sane, clear-sighted dreams. flogging, as the law uses it as a punishment to-day, is not used, i fear, merely as a remedy or even a deterrent but rather by way of revenge. it is almost wholly used against the very poor and degraded. even under the white slave act, i cannot remember any case in which it has been used against a well-to-do man. in any case it is only available against the actual procurer and not against the landlords, ground landlords, restaurant proprietors, and dressmakers, who knowingly share in the woman's earnings and live on them. flogging may, or may not, be an advisable form of punishment, but if it is to be used, let it be administered automatically and without fear or favour to all beasts and blackmailers and hooligans, be they rich or poor. at present the chances of a rich man being flogged for his wickedness on earth are about the same as those of the camel with an ambition to loop the needle. chapter xi the police court _squeezum._ the laws are turnpikes, only made to stop people who walk on foot and not to interrupt those who drive through them in their coaches. fielding: "the coffee-house politician." act ii., scene ii. when fielding was made a magistrate for the county of middlesex in the popular notion of the office was expressed in the nickname, "the trading justice." he was paid by fees and had a direct interest in the prosperity of crime. the fees, moreover, were very small, and it was a recognised thing that he should make his office a lucrative one by methods exemplified by mr. justice squeezum in fielding's farce. although the great writer fulfilled the duties of his office with honour, fidelity, and zeal, he has left us in no doubt about the immorality and ignorance of many of his fellow justices. it is a relief to turn from the justice room in bow street in the eighteenth century with its rogues and vagabonds on their way to the whipping posts of the bridewell, and its highwaymen and thieves starting for tyburn by way of newgate, and to look on the comparatively civilised picture of a metropolitan police court of to-day. a century and a half has worked wonderful reforms for us in the world of police and police courts, but one cannot honestly say that nothing remains to be done. direct bribery is no doubt abolished, justice is fearlessly administered, but there are still traditional methods of imposing fines and imprisonment which cause the poor to think that carriage folk go more easily along the turnpikes of the law than those humble ones who travel perforce on foot. i am not writing of the police court as the antechamber of the old bailey. in relation to the grave crimes against society we may fairly boast that rich and poor are treated much alike. but the police court in matters within its own jurisdiction is a machine for teaching better manners to the poor. it is a somewhat harsh machine, perhaps, but in the main just and necessary at the present state of our evolution. when folk are naughty and violent and ill-mannered and ultra-selfish, and become a nuisance to their neighbours, the police, if they are poor, take them in hand, but if they are rich they are dealt with differently. unless they are so extravagantly and absurdly naughty as to become a public as opposed to a private nuisance, there is no necessity for the police to tackle the rich. when two "lydies" go for each other in the gutters of whitechapel the police step in, but when the same thing happens in mayfair, society--with a big s--maintains its own discipline. the reason why rich folk are not so outwardly naughty as poor folk is very much a matter of education and environment. as lord haldane in his valuable speech in america explained to us, there is a "system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is 'bad form' or 'not the thing' to disregard." thus in the days of sir anthony absolute it was "bad form" not to get drunk after dinner, and it was "not the thing" to refuse to fight a duel. these laws of conduct were not enforceable before magistrates, but they were laws all the same, and rich people dared not disobey them for fear of being "cut" by society. and as the years roll on better education, better housing, better wages, and less of that repressive sabbatarianism that drives the poorer youngsters into natural mischief will make the police court less and less necessary as a school of manners. the conscience and good manners of all classes attain a higher ideal every day, and the only reason the rich arrive at a better standard of outward manners than the generality of the poor is that they have been caught young and made to practise at it for generations. it is not a matter entitling them to praise, but we are out to set down and discuss facts, and undoubtedly it is so. for instance, you would expect an eton boy to play better cricket than a st. andrews caddie, but the caddie would probably beat the other's head off at golf. it is environment that does it, and the lesson to be learned is to improve in every way the material surroundings of the poor to the utmost of our ability. meanwhile the police court seems to me as necessary a part of our equipment as a sewage works or an ashpit. crime is not only a matter of heredity and education, it is also a question of geography. this geographical distribution of crime is an intensely interesting subject. you will find that cardigan, for instance, is the whitest county in england and wales for crimes of all kind, whether against property, morals, or of a violent character. glamorgan, on the other hand, is only beaten by monmouth in records of crimes against property; in crimes of violence glamorgan is easily first; in crimes against morality glamorgan again is only beaten by dorset, berks, lincoln and huntingdon, the latter taking the - record very comfortably. monmouth, happily, in this latter class of crime is in a far better case than her neighbour. if you can trace the history and causes of different crimes in different districts i believe you may hope to sterilise a county of certain crimes by moral sanitation and stamp them out just as we have rid counties of typhus and the plague. in dealing with uncivilised crimes of mischief and destruction we should always bear in mind that the poor who do these acts are very often only human beings who have not been cultivated up to modern standards. some crimes are traditional in certain districts, and the imitative faculty being strong in criminals, heredity and mimicry work together to cause a certain historicity in crime. magistrates and others do not sufficiently study this. patriotic county officials loudly deny what everyone who reads the judicial statistics knows to be true. in discussing the edalji case i pointed out that to anyone who studied the history of crime it was far more likely that such crime would be committed by a native of the county than by a gentleman of parsee descent. this seemed to annoy some ardent staffordshire folk, but there is no reason why it should. killing and maiming the cattle of others is a very ancient pursuit and has only recently been regarded as criminal. the wicked man in the bible was often threatened with the destruction of his cattle. no doubt the righteous man was encouraged thereby to take upon himself the duty of avenging his wrongs by destroying his wicked neighbour's cattle, and the wicked neighbour, believing himself to be the righteous one, retaliated in kind. certain it is that in border countries we always read of cattle raiding and killing and maiming, and perhaps one reason why staffordshire is old fashioned in the cattle-maiming business is that it was a border country, and in the good old days the lords and squires raided cattle and destroyed their neighbour's farms and boundaries, and these antiquated habits remain with some as natural instincts of revenge. in early days such acts were not considered criminal. the only malicious injury to property known to the english common law as a crime was arson. it was not until the time of henry viii. ( hen. viii., c. ) that it was discovered that there were "divers sundry malicious and curious persons, being men of evil and perverse disposition and seduced by the instigation of the devil, who, to damnify the king's true subjects went about burning frames of timber ready to be set up and edified for houses," and broke down dams and moats or cut away lead pipes, or barked apple trees, or cut out beasts' tongues, which seems a very ancient and horrible form of maiming cattle. the penalty for these latter offences was the inadequate fine of ten pounds. in came the black act which made it felony without benefit of clergy to "unlawfully or maliciously kill, maim, or wound any cattle." in a malicious damage act ( & vict. c. ) was passed, codifying all the law relating to such offences, and that is the act under which mr. edalji was indicted. i have worked out the geographical statistics of cattle maiming in england for forty years, from to , and they are extremely interesting. in the first place it is well to know that the total number of such crimes is rapidly decreasing. in five years, from there were over a hundred cases; in five years prior to there were less than fifty. the counties, which total more than twenty cases each, are york, sussex, middlesex, lincoln, lancashire and staffordshire. somerset and gloucester have nineteen cases, but gloucester has only one case since and somerset only six cases since . surrey has only eleven cases, and only five occur since . anglesey and westmoreland have only one such charge each during the whole forty years. in the case of staffordshire, in the twenty-two cases taking place from to fifteen cases had taken place since , and there is never a clear five years in the period without a case. in , when the wyrley outrages took place, it seems to me that a county with this history would have been sensible to look at home for the criminal. in counties such as somerset and surrey, where the offence seemed then to be dying out, the same considerations would not apply. whereas in westmoreland or anglesey the expectation would be that the crime was committed by a stranger. i do not think it would be wise to press these speculations too far, but at the same time i think magistrates and police might make greater use of the wonderful statistics that are collected and published by the state at such great expense and learn useful lessons from them in their daily business. whilst we condemn the horrible savagery of such crimes it is only fair to remember that the law does not punish them for their cruelty, but only for their injury to property. prevention of cruelty to animals is a far more modern branch of law, the beginning of which dates from . when lord erskine moved his bill against cruelty to animals in , so absurdly sentimental did it seem to the assembled peers that they drowned his speech in a chorus of cat-calls and cock-crowing. it is well to remember when measuring punishment in the police courts that there are individuals and classes existing to-day that are scarcely more civilised than the lords and barons of a hundred years ago. the feudal lords and their henchmen did many things in the good old days in their quarrels with their neighbours which to-day would bring them before the justices. they wounded with intent, they did grievous bodily harm to anyone who annoyed them, and they did as much malicious damage to property as seemed in their own eyes a fair set off for insults had and received. among a certain small degraded class in our own country these traditional pleasantries of the country-side are not fully recognised to be crimes. there are a set of men among whom it is not "bad form" to commit these acts. this form of atavism requires not only pity but further and better repression at the hands of capable police. as long, therefore, as we have these hereditary tendencies to crimes of violence and selfishness, the police court seems to me to meet a felt want. i can imagine a better world without any police court, just as i can imagine this world with a better police court. but i should like to see imprisonment kept entirely for evil-doers, and that side of the police court work which consists in rate collecting and semi-civil proceedings transferred elsewhere. at present many are sent to gaol in the police court for the crime of poverty. in the cases of non-payment of rates or of orders on parents to pay subscriptions to industrial homes it seems a very bad policy to send a poor man to prison. it takes a man from work, it does not produce money, and it throws a family into the workhouse. in these cases there is no pretence of proving a man's means and sending him to gaol because he can pay and won't. no such evidence is necessary. the man goes to prison because he is poor and has not the money to pay. if the state thinks fit to put a man's child in a reformatory, one would think it might stand the expense of it, without ruining the home by imprisoning the father because he cannot subscribe towards his keep. with regard to orders for maintaining a separated wife, or affiliation orders, everyone would have less sympathy with the man who is sent to prison for not paying these. but if a man has not the money he does not make any in prison, and what these poor women want is regular weekly money. these are special cases in which i think power to attach a man's wages up to a certain percentage would be a just and reasonable proposition. such a law might be unpopular with mankind, but it seems fair to the women. whether it would tend to increase or decrease maintenance and bastardy orders i have not the least idea. "five shillings and costs or seven days." this familiar phrase, as count smorltork says, "surprises by himself" the whole philosophy of police courts. nothing is more marked in the treatment of rich and poor in the police court than the unfair incidence of fines. take, for instance, the common case of a motor-car driver being fined forty shillings and costs for exceeding the speed limit and driving to the danger of mankind. if his master is a cabinet minister, say, he writes a civil letter to the clerk to the magistrates expressing his regret and enclosing the needful, which is just two five-thousandths of his official income. but supposing he is a taxi-cab driver who owns his cab, or is buying it on the hire system, as many do. he, too, is fined forty shillings and costs, and as he earns, let us say, forty shillings a week, he has to pay one fifty-second of his income. if he cannot raise the money his home is distrained on, or there is the option of imprisonment. that kind of option never worries the cabinet minister or the chauffeur thereof. in the old tithe days the parson took his tenth from rich and poor alike, and was no respecter of persons; all he wanted was one-tenth of your income in cash. as between cabinet minister and cabman the relation of fine should be as two pounds to ninepence--that is to say, if the law in the police courts desires to treat rich and poor alike. there is no difficulty about doing this. all that is wanted is to enact in your statute that the fine should "not exceed one-fiftieth or one one-thousandth of a man's income." then all would be fined off the same mark. at present the poor man is the scratch man, and the greater the wealth the longer the handicap. as to costs, they should be wholly abolished. they are not only an odious tax on the poor, but they give the officials of the court an unholy incentive to make the court a paying concern, and, what is worse, give every clerk and officer in the police court a direct pecuniary interest in convictions. as things stand to-day a council of city men are not likely to advance salaries where their police court is losing money. a godly and righteous police court should glory in losing money year by year. and whilst i recognise that at the head of each police court there should be a stipendiary to deal with the more important cases, and always to be within call when there are cases to try in which the local magistrates have a class interest, yet i have no desire to abolish dogberry, nor do i take any pleasure in reading that he has written himself down an ass. in our chief cities there are now excellent stipendiaries and magistrates of all classes, including representatives of working men, and all can testify how--taking the police court system as it stands--it is worked fairly and carefully and to the advantage of all. but these places are far ahead of the county towns and districts where the squire and parson reign supreme, and the clerk to the justices is their own faithful attorney. i believe thoroughly that these men do their best, but it is quite impossible that they can take a normal view of such horrible crimes as the rape of a pheasant's egg or the snaring of a hare. it is from the beautiful little corners of the lovely english country that the bitter cry of injustice in the police courts makes itself heard from time to time in the public press. why should not every hamlet have its village plowden to brighten life on the country side? there we see, let us hope, the last of a decaying and rotten system--justice administered by a class unlearned in law, and unlearned in a far more important branch of their business--the knowledge of the works and days and temptations of the fellow sinners whose judges they have elected themselves to be. in the remote country places more than anywhere is the stipendiary a necessity. meanwhile, why should not direct representatives of the agricultural labourer be placed upon the bench if we are not to abolish dogberry altogether? while these words are being written, an effort is being made with a criminal administration bill to do away with some of the abuses of the police court. the imprisonment of people for non-payment of fines is really imprisonment for poverty, and the scandal of it is at last officially recognised and the necessity of reform admitted. that, at all events, is to the good, though it is to be hoped that if the bill at present put forward is to pass it will be widely extended and simplified. it is quite a good thing to enact that it shall be obligatory upon magistrates to grant time for the payment of fines, but seeing that the magistrates have always had this power and never used it to any useful extent it would be well that there should be less discretion about the matter. law for lay magistrates should be automatic and fool-proof. when you enact that a magistrate is obliged to allow time for payment of fines, "unless the court for any other special reason expressly directs that no time shall be allowed," you are surely inviting the average justice to supply himself with special reasons why he should not carry out a law which you know by his past history he dislikes. it must not be forgotten that in manchester, although the fees legally allowed for a summons are twelve shillings, the practice has been for fees not to exceed the fine. imprisonment for less than five days--which in the future is not to be permitted--has for a long time not been allowed by the practice of the manchester justices. where justices desire to be lenient and enforce the law temperately they can do so to-day, and therefore it is clearly no use in a new statute to leave a discretion to those who will certainly abide by old and evil customs unless they are forced to do otherwise. the statistics of the police courts show that in one year , citizens were imprisoned in default of the payment of a fine and , imprisoned without the option. the number of persons sentenced to pay fines is no less than , . every year new statutes are passed making new offences which can be committed with practical impunity by those whose purses are long enough. under the heading betting and gaming, , persons were fined and only went to prison. under the heading motor cars, , were fined and only went to prison in default; under the heading sunday trading, , were fined and only went to prison by default. these offences are generally committed by persons with some money; but where the parties are poor what a terrible difference in their punishment. the mere giving of time to pay fines will not abolish this injustice unless the fines are made, as has been suggested, in some ratio proportionate to a man's income. if it were enacted that a fine should not exceed a day's wage earned by the prisoner, that would be a method of doing away with the burden of useless imprisonment that has to be borne by the poor. it is no use enacting that the court in fining an offender shall take into consideration the means of the offender. i make no doubt that this is done already to a large extent by stipendiaries and the more enlightened magistrates. what is wanted is an actual printed tariff of fines fairly proportioned to the means of the offender, beyond which the magistrates may not go. measures that depend on the sympathetic working by the members of the bench will be in many districts a dead letter, and inasmuch as the folk who go to prison in these cases are always poor people, very little will be known of their trouble except by those few persons who study blue books and statistics. this habit of the magistracy to ignore the good intentions of parliament and the home office is in nothing more marked than in the refusal of many country benches to give bail to poor people charged with offences that have to be tried at sessions or assizes. many judges have called the grand juries' attention to the large number of prisoners who are left in prison awaiting trial, some of whom are ultimately acquitted. but this is one of the matters where magistrates must of necessity have discretion, and although they receive home office circulars calling attention to their duties in the matter of bail they prefer to go their own wrong-headed way and unnecessarily keep a large number of poor persons in prison who might quite safely be allowed to remain out on bail. it is curious how history repeats itself and how a lay magistracy, as a type, always tends to act without sympathy or consideration for the poor. a hundred years ago the yorkshire magistrates came to the conclusion that it was a most improper thing that poor people committed for trial to the house of correction should be allowed to idle their time away at the expense of the county, so they actually required them to work for their living, and as the treadmill was the only apparatus of a commercial character in the gaol the poor untried prisoner was put to walking round a wheel in company of his convicted brother. the way in which the matter was put by mr. john headlam, m.a., chairman of the quarter sessions for the north riding of the county of york, is a perfect specimen of the true dogberry temperament: "with respect to those sentenced to labour as a punishment, i apprehend, there is no difference of opinion. all are agreed that it is a great defect in any prison where such convicts are unemployed. but as to all other prisoners, whether debtors, persons committed for trial, or convicts not sentenced to hard labour, if they have no means of subsisting themselves, and must, if discharged, either labour for their livelihood or apply for parochial relief; it seems unfair to society at large, and especially to those who maintain themselves by honest industry, that those who, by offending the laws, have subjected themselves to imprisonment, should be lodged and clothed and fed, without being called upon for the same exertions which others have to use to obtain such advantages." of course the whole question is begged when an untried prisoner is called an offender against the laws. the headlam view of him always has been, and is to-day, that the mere fact that a policeman has arrested him is proof that he is an offender; this for all time has been justices' law, but it is doubtful whether the old doctrine that a man is to be deemed innocent until found guilty by a jury of his peers is not still sound law and ought not to be more fully recognised by the lay magistrates. of course the particular wrong that mr. headlam was contending for has long been abolished, not indeed without much argument and trouble, but we still punish an untried man by imprisoning him before trial, and in very many cases this is wholly unnecessary. the idea of keeping a man in prison is that he should be forthcoming on the day of trial. in some serious cases it is obviously necessary to keep a man in custody, but in many small cases if a cheap bail was fixed there would be no difficulty in finding the sureties and the prisoner could be outside arranging for his defence and earning money for the support of his family until the day of the trial. of people acquitted at assize courts only were allowed bail, so that there is a clear admission in the official figures of three hundred innocent persons--or persons not provably guilty--remaining in prison because the justices will not carry out the home office suggestions as to bail. remember too that in some remote places there are very few assizes and eighteen of these unhappy persons remained over three months in prison awaiting trial. at quarter sessions the figures are even more remarkable. of , prisoners acquitted only had been granted bail. here you have a large number of innocent men and women kept in gaol charged with offences that are not of the most serious character, and this is done not because in this peculiar instance the law itself is harsh--because the law permits bail and the government office calls on the magistrates to make use of the law--but because the law is administered by well-meaning but incompetent men who have a fixed delusion, handed down to them from their forbears of hundreds of years ago, that a man arrested for a crime by the police and awaiting trial is, to use mr. headlam's phrase, "an offender against the laws." where there are no stipendiary magistrates it would not be a bad plan to give any prisoner a right to appeal on refusal of bail to a judge of the county court who lives within the district and is of necessity a magistrate though he seldom has much time to sit at petty sessions. before we leave the police court i should like to draw attention to a well-founded complaint against police methods that the home office might certainly take into their consideration when they are reforming the administration of the criminal law. i refer to the practice of identification which has come so prominently before public notice in recent criminal trials. i never met a prisoner who felt that it was fairly done. for myself, i have the firmest belief that the police endeavour as a rule to do what is right and straight, but after all we must not lose sight of the fact that the police are there to clear up the crime and to run in somebody--the real criminal of course for choice--and it seems hardly right to put them at this very critical moment into the position of a judicial authority deciding the most important point for or against the man they have arrested and believe to be guilty. i have always wondered what legal right a policeman has to put you in a row with a lot of other men and bring people to look at you. suppose a prisoner refused to undergo the ordeal and the policeman used force to compel him, could the prisoner recover damages for assault. these are recondite, and in a sense absurd points; but they do, i think, help one to see how wrong the present system is. at the ceremony of identification it is obviously necessary that there should be a presiding magistrate to see fair play and to take a record of what happened. it is really a part of the trial and a most important part of the trial. that a witness should identify a prisoner in a police yard in the absence of a judicial authority is clearly an unjust thing. once he--or more especially she--has done so, the further swearing to the prisoner when he is in the dock is nothing. what the magistrate ought to see is the demeanour of the identifier when he first recognises the prisoner and especially ought a justice to be present to see that there is no suspicion of unfairness in the methods employed by the police. we have had so many tragedies brought about by so-called identification, that it is more than time that the business of it was taken out of the hands of the police and made an integral part of the trial before the magistrate to which it in truth belongs. these reforms will not, i think, come about until we have stipendiary magistrates on the county benches, but though i wish to see this i do not want the old office of justice of the peace to be abolished. there is, and rightly ought to be, a keen desire among laymen to attain to this position, and it is an office of much dignity and respect and one in which a good man under sound legal advice can do worthy public service. i have been a local justice of the peace for many years and can testify to the number of occasions upon which a magistrate residing in his district is called upon for small services that would cost the applicant time and money if there was no available magistrate. a great many lay benches with a clerk of sound learning and legal education administer excellent justice throughout the country. but there are classes of cases connected with property that would be better tried by a stipendiary unconnected with county society. i have a passion for old-world things, and grieve over the disappearance of the parish constables, the head boroughs, the tithing-men, the aletasters, the beadles, and the reeves. i do not wish to abolish the justice of the peace. i only wish to put him in his proper place. of course, if he cannot be happy there, then i am afraid he will have to go. chapter xii landlord and tenant at number seven there's nob'dy lives, they left it yesterday; th' bum-baylis coom an' marked their things, an' took 'em a' away. they hardly filled a donkey cart--aw know nowt wheer they went-- but they say th' chap spent his brass o' drink instead o' payin' th' rent. samuel laycock: "bowton's yard." in this branch of the law it cannot honestly be said that the legal position of the poor is very different from the legal position of the rich. given private ownership of land and the right of a landlord to distrain for rent in arrear, and seize and sell his tenant's goods to pay himself, it does not seem that the law or the way in which it is administered is better or worse for rich or poor. the law of distress is, as its name implies, a harsh and cruel remedy and the shadow of it hangs nearer and darker over the cottage porch than over the doors of the eligible mansion, but it is there in both places. to a weekly wage owner paying an exhausting rent out of a pitiful wage, the ever present right of his landlord to distrain, whilst it nerves him to make every effort to keep a clean rent book, must be one of the sad and depressing elements of daily life that the middle classes do not experience so directly. it is pleasant to record--what is in fact my experience--that whatever may have been true of the cruelty of landlords in other times and places the landlords of to-day owning cottage property are not a harsh race. they themselves, especially the poorer ones, have their own troubles. the rates have to be paid, the by-laws to be observed, the notices of the sanitary inspector to be obeyed, and perhaps the fact that they themselves have to ask for time to pay and to sue for leniency from corporations and other officials leads them to be tender with their own underlings. certain it is that in the putting in force of the right to evict a tenant the landlord is very long-suffering. this last step is not usually taken until the rent is many weeks, or often months, in arrear. even when an eviction order is granted, i have known many cases where a landlord renews the tenancy and collects the arrears at small instalments. eviction orders are very often asked for not in the landlord's own interest but in the community's. the necessity to do the sanitary requirements of public bodies is a constant source of eviction. the tenant having no neighbouring house to go to clings to the undesirable shelter he has got until the forces of the law turn him out in the interests of hygiene. another curious cause of eviction is a woman's tongue. a lady with what is technically known as "a tongue" will set all her neighbours by the ears; houses on each side of her domicile rapidly empty, and at length the whole street comes to the landlord demanding that she shall go or threatening to depart themselves. the lady with "the tongue" of our day was, and as far as i know still may be, known to the law as a common scold, and according to chief justice holt was punishable by ducking. mrs. foxby, of maidstone, was, if i remember, the last lady who was indicted at common law for this offence and sentenced to be ducked. she moved, in trinity term, , in arrest of judgment because they had called her in the indictment "_calumniatrix_" and not "_rixatrix_" and insisted on her motion, although chief justice holt in kindly warning reminded her that ducking in trinity term was pleasanter than ducking in michaelmas. as the court pointed out, mere scolding was not the offence, it was the constant repetition that was the nuisance. in the result, after a year's litigation the flaw in the indictment saved the maidstone lady a ducking in the medway. but though the common scold and the ducking stool no longer figure in the quarter sessions calendar--though it would rest with the court of criminal appeal to decide if they are yet entirely obsolete--the woman with a tongue, the "_rixatrix_," or lady brawler is undoubtedly still existent and has to be dealt with by the landlord of small property by county court eviction. what is called a possession summons is taken out, and in the hearing of it the lady always appears and protests vigorously against the treatment meted out to her, arguing that the street is in a conspiracy against her, and that she is the one quiet peaceful woman in the neighbourhood. any doubt as to the correctness of the judicial decision in making an eviction order is solved as soon as the order is made, when, self-restraint being no longer necessary, the full force of "the tongue" is turned upon the landlord, the judge who is in league with him, and the two stalwart members of the force who with some difficulty show the lady the door. next to dry rot and vermin, a tenant with "a tongue" is the greatest enemy of the landlord of mean streets. but what has long been recognised about the status of landlord and tenant, is that under present economic circumstances it is impossible for a wage-earner to obtain at the expenditure of a reasonable proportion of his income proper housing for himself and his wife and children. the duty of the state to the poor in this matter is gradually dawning on people's minds, they are waking up to the fact that it cannot be done solely by individual effort, and on this subject the law, i am glad to report, is beginning to make serious efforts to set its houses in order. at present legislation has taken upon itself three objects: ( ) the clearing of slum areas and rebuilding new dwellings, with powers of compulsory purchase granted to local bodies. ( ) the granting to corporations and councils power to close insanitary houses, and to make their owners repair them. ( ) the permission to local authorities to build houses for the working classes where there is an insufficiency. we are a slow moving race. we generally do our legislative reforms by a succession of statutes vigorously fought over and hacked about by gay party spirits whose nearest idea of patriotism is to queer the other fellow's pitch and spoil his budding statute by crimping amendments that he knows will make it unworkable. we have only gone a little way with the housing business as yet, and if the next statute on the matter could be put in the hands of a small committee of both parties to draft and bring before the house, perhaps we should get somewhat nearer finality. it is rather melancholy reading to pick up the latest pamphlet of the bookstall on the housing question and find much of the writer's ingenuity wasted in trying to prove that his party, and his only, has in the past made any effort to better the housing of the people, and that in the future there is only one honest capable scheme which is worthy of consideration. there is not much real help in these essays. their burden is always the same. recollect at the election time--"short's very well as far as he goes, but the real friend is codlin--not short." the truth is that neither party has done very much. the history of the matter is much as follows: writers of all parties and creeds in the early victorian days wrote eloquently of the slum dwellings of our great cities. some of deeper insight than the rest saw that all was not well, even with the rose-covered cottage of the country-side. it is only within our own lifetime that we have begun to learn that it is morally and economically wicked for a nation to own slums. this truth has not been taught us by the priests and politicians of our time, but by our men of letters. dickens knew all about it and prophesied in despair that we should have to wait for five hundred years for reform. you remember tom-all-alone's where jo lives: "it is a black, dilapidated street, avoided by all decent people; where the crazy houses were seized upon, when their decay was far advanced, by some bold vagrants who, after establishing their own possessions took to letting them out in lodgings. now these tumbling tenements contain by night a swarm of misery. as, on the ruined human wretch, vermin parasites appear, so, these ruined shelters have bred a crowd of foul existence that crawls in and out of gaps in walls and boards; and coils itself to sleep, in maggot numbers, where the rain drips in; and comes and goes, fetching and carrying fever, and sowing more evil in its every footprint than lord coodle, and sir thomas doodle, and the duke of foodle, and all the fine gentlemen in office, down to zoodle, shall set right in five hundred years--though born expressly to do it." maybe you could not find to-day an exact replica of tom-all-alone's; certainly we have swept away acres of them, but it is still worth while to read and remember such descriptions, if only to remind ourselves what the poor have to suffer if the law remains powerless and inert in the compulsory provision of decent housing. people grumble at state interference, but they forget what made it necessary. rampant individualism led to housing workmen in the tailor's shop, described by alton locke "a low lean-to room, stifling me with the combined odours of human breath and perspirations, stale beer, the sweet sickly smell of gin, and the sour and hardly less disgusting one of new cloth. on the floor, thick with dust and dirt, scraps of stuff and ends of threads, sat some dozen haggard, untidy, shoeless men, with a mingled look of care and recklessness that made me shudder. the windows were tight closed to keep out the cold winter air; and the condensed breath ran in streams down the panes, chequering the dreary outlook of chimney-tops and smoke." when we are wondering how far it is our right and duty to interfere between a man and his house property or whether it is incumbent upon the nation to take upon itself the burden of housing its people, it is useful to look on these pictures of england in the glorious days of queen victoria and albert the great and good. the problems were there then, but it was not the statesmen who saw them and urged their solution. nor was it only sentimental radicals who painted in lurid colours the horrible houses of the people. d'israeli, in "sybil," draws an eloquent picture of the narrow lanes of the rural town of marney, which might be any country town of the south of england--the rubble cottages with gaping chinks admitting every blast, with rotten timbers, yawning thatch letting in the wind and wet, and open drains full of decomposing animal and vegetable refuse, spreading out here and there with stagnant pools--these things were common-places in the homes of rural england in . "these wretched tenements," writes d'israeli, "seldom consisted of more than two rooms, in one of which the whole family, however numerous, were obliged to sleep, without distinction of age or sex or suffering. with the water streaming down the walls, the light distinguished through the roof, with no hearth even in winter, the virtuous mother in the sacred pangs of child-birth gives forth another victim to our thoughtless civilisation, surrounded by three generations, whose inevitable presence is more painful than her sufferings in that hour of travail; while the father of her coming child, in another corner of the sordid chamber, lies stricken by that typhus which his contaminating dwelling has breathed into his veins, and for whose next prey is perhaps destined his new-born child. these swarming walls had neither windows nor doors sufficient to keep out the weather or admit the sun or supply the means of ventilation, the humid or putrid roof of thatch exhaling malaria like all other decaying vegetable matter. the dwelling rooms were neither boarded nor paved; and whether it were that some were situate in low and damp places, occasionally flooded by the river and usually much below the level of the road, or that the springs, as was often the case, would burst through the mud floor, the ground was at no time better than so much clay, while sometimes you might see little channels cut from the centre under the doorways to carry off the water, and the door itself removed from its hinges, a resting place for infancy in its deluged home. these hovels were, in many instances, not provided with the commonest conveniences of the rudest police; contiguous to every door might be observed the dung heap on which every kind of filth was accumulated for the purpose of being disposed of for manure, so that when the poor man opened his narrow habitation in the hope of refreshing it with the breeze of summer, he was met with a mixture of gases from reeking dung-hills." science, medicine, philanthropy, sanitary engineering and enlightened local government have done something to remove many of the horrible things d'israeli describes, but one cannot say that the law has co-operated with much vigour in this beneficent crusade. without law and compulsion the work will never be done as thoroughly as is necessary throughout the length and breadth of the land. the eloquent outcry, from writers of all creeds and parties, demanding better houses for the people at length made itself heard within the walls of westminster. but it was not until that the torrens act was passed, the first attempt of the legislature to deal with slum property. this was followed by the artisans dwelling act of , which enabled local authorities to compulsorily purchase slum areas and re-build sanitary dwellings. in birmingham, where mr. joseph chamberlain was mayor, magnificent use was made of these powers to the great present benefit of the city. in liverpool, manchester, and other towns something was done, but as the business depended in the main on local initiative, and the spending of money, much more remained undone. a few small measures were passed, but they did not lead to any great practical work being put in hand, and again it was the man of letters who wakened the national conscience. i remember well in the eighties the appearance of "how the poor live" by george r. sims and the interest and sympathy it aroused. there is no exaggeration in the book, but merely a graphic record of fact, and it proves with melancholy certainty the small progress that had been made since the days of dickens, kingsley and d'israeli. it was with a great chorus of self congratulation and the loud braying of journalistic trumpets that on march th, , a royal commission was announced to inquire into the housing of the working classes. it is almost forgotten to-day, but in its time it aroused great hopes in the breast of social reformers. sir charles dilke was chairman, the prince of wales himself was a working member of the commission, cardinal manning, lord salisbury, samuel morley, jesse collings, henry broadhurst and other great public men of the day were his colleagues. the overcrowding, the immorality and disease and waste caused by bad housing, the terrible tax of rent on the incomes of the poor were all rehearsed in painful detail before these great ones of the earth. but when one comes to remedies and recommendations, there is nothing except the most trivial and inadequate propositions that the eminent ones can agree upon. their first suggestion is that vestries and district boards should put in force existing by-laws, though who was to make them do it is not mentioned. then they think it would be an added decency to the lives of the poor if there were more mortuaries near their homes to take the dead bodies from the already overcrowded rooms--as though the problem they were there to consider was not the housing of the quick, but the housing of the dead. building by-laws, sanitary inspection, and workmen's trains are a few of the mother partington mop remedies that this great commission had to offer to keep back the sea of troubles that overwhelmed the poor of our great cities in their struggle for decent existence. one cannot blame the members of the commission that so little was suggested. it was inevitable when one remembers that nothing at all is possible in the right direction without a great upheaval which is bound to re-act injuriously on some of the greatest vested interests in the country. a meeting of the great ones in whom the interests vest is not likely to bring about immediate reforms. but at all events here in the pages of the printed evidence are the facts. the horrors painted by d'israeli, kingsley, dickens and george r. sims are at least patiently collated and indexed for us, and now after thirty years we should do better not to expatiate on the little we have done for betterment, but to acknowledge how much we have left undone, and show our repentance in energetic deeds. no one can recognise more clearly than i do the value of such authoritative evidence of facts and details as are collected in the report, but the reading of them only makes one the more impatient at the method of government which can tolerate the continuance of such abuses. in , little or nothing having been done, it occurred to lord salisbury that it was time to have another commission. but it was not until that a select committee of both houses was appointed to consider, in lord salisbury's own words, how to get rid of "what is really a scandal to our civilisation--i mean the sufferings which many of the working classes have to undergo in order to obtain even the most moderate, i may say the most pitiable accommodation." the problem could not be better stated. the scandal was with us in , it was with us in , and it is with us to-day. at least if we are unwilling or incompetent to solve it let us have done with the constant consideration and further consideration of royal and select commissions which only make the hearts of the poor sick with promises and hopes that can never be fulfilled in our own generation. one cannot here set out in detail the various housing acts that have been passed; there was one in , which apparently led to more insanitary houses being closed than new cottages built. there was another in , with further new provisions and modifications of former schemes, and lastly comes the housing and town planning act, which deals rigorously with owners of insanitary property. this act industriously made use of may help to realise our hopes of the possibility of hygienic pleasances for the poor of future generations. here we have a short record of some fifty years of legislative effort--more or less honest--in which each party has sought to promote measures to help the poor who are oppressed, as lord salisbury said, by this "scandal to our civilisation," the want of decent housing. and yet how little has been achieved, how small the results, how disappointing to find the great men who talked in parliament and sat on commissions and discussed these matters with so much learning and ability passing away and leaving this problem for us to tackle, and we on our part looking idly on and still wondering what can be done. if our schoolmasters had taught us how to make bricks and build with them instead of how to read books and write more of them, better results perhaps had been already achieved. there are many acres of houses in england built prior to that exhibit all the slum traits that have been so eloquently described in literature, and many millions of our fellow citizens live in houses which fall below the minimum standard of sanitation where the decent separation of the sexes is impossible and the general conditions of life are sunless and miserable. the amount of overcrowding in england and wales is shown graphically enough in the census returns for . overcrowding from a census point of view means that more than two persons live in a room, counting the kitchen as a room, but not the scullery. "thus," as the editor of the land inquiry report tells us, "if a tenement or cottage consists of two bedrooms and a kitchen, the census authorities would only describe it as overcrowded if there were more than six persons living in it, no matter how small the rooms. the census test of overcrowding is, in fact, quite inadequate to measure the full extent of the evil, and there is great need for the adoption of a more accurate one. even adopting this standard, however, the census authorities find that one-tenth of the total urban population of england and wales are overcrowded. this means that nearly , , persons are overcrowded." no one who is constantly meeting the victims of this state of affairs, and discussing with them, as a county court judge has to do, their domestic affairs, can fail to be struck with the large amount of infantile mortality and disease, and the prevalence of tuberculosis and the general physical and moral weariness and debility, which may in a great measure be traced to the bad conditions in which the working classes must perforce live because there is nothing better obtainable. the price paid for such accommodation as there is, is a cruel tax on the working man. for the meanest shelter he has to pay anything up to twenty per cent. of his weekly income. imagine a man with a thousand a year spending two hundred a year in rent alone. how eloquent would the official receiver be did bankruptcy supervene, as it probably would, and what homilies he would preach on the rash and extravagant folly of the bankrupt in spending so large a proportion of his income on a house. and yet this extravagance is compulsory to a working man, who has to pay out of his wages for a mere roof over his head money that is badly needed for the food and clothing of himself and his family. i have dwelt on this subject at some length because in most of the chapters of this book my complaint has been that the laws are insufficient to help the poor, because they have in past days been enacted by the rich, and are still being administered by the rich, without knowledge of, and sympathy for, the best interests of the poor. here the problem is entirely different. everyone must admit the energy and good faith of all classes and parties and officials, within the rules of the party game, in their endeavour to cope with a condition of things which is an admitted national disgrace, and a scandal to civilisation. the melancholy conclusion, however, stares one in the face. the result of interminable inquiries and committee meetings and palaver is plain unmistakable failure. the fringe of the subject has scarcely been reached, and the state of affairs which the man of letters portrayed to the shame of our grandfathers is likely enough, it would seem, to be "copy" for our grandchildren and their grandchildren to journalise with world without end amen! and although it would be impertinent in me to pretend to have a remedy for these evils where all the great ones have failed to bring about reform, yet i cannot help thinking that the reason of the failure is the reason of much of our legislative failure--the dread of vested interests and the permissive character of the statutes passed. what is the good of asking a town council of builders and landowners and estate agents to put in force laws that will, or at least are expected to, have the effect of diminishing their incomes? should i, or would you, enforce an act of parliament with any joyful energy when we knew that the more thoroughly we did it the more we should be out of pocket? it is asking too much of human nature. there has been a clear failure in the smaller local governing bodies in putting in force even such legislation as exists for the betterment of the district. the rivers pollution acts are a standing instance of the neglect of duty by local councils. for years nothing was done to put the acts in force, because the smaller polluters were the mill owners, who were members of the local council, and the biggest polluter of all was the council itself pouring crude sewage into the river to relieve the rates. parliament lacked a sense of humour when it expected mill owners and sewage boards to prosecute themselves for river pollution. good work in housing will never, i think, be really effectively done until it is left to the initiative of a medical officer of health or a sanitary engineer, with judicial power to order things to be done and force behind him to have them done. the idea that a medical officer of health should be a servant of the casual butchers and bakers of the town council is, on the face of it, an absurd one. he should be as permanent and independent as are the stipendiary, the judge, or the coroner, for he requires even more than common fearlessness to deal roundly with the jerry builders and slum owners who are his aldermen and councillors, and who at present sit on a committee of appeal from his decisions. as long as these matters are left solely to local bodies the real burden of financial consideration, the lack of personal knowledge of hygiene and sanitation among the members themselves, and the shrinking from enforcing legal hardships on the poor owners of bad property, will alone prevent effective reform. to these natural and honest forces must also be added the weight of vested interests, which deliberately obtain power on local bodies for the purpose of preventing housing reform being put into thorough operation. never was there a greater and louder demand by the people for a fair share of the land they live in. the countryman wants his plot and his cottage, and the town dweller a decent house at a reasonable rent. this is the "condition of england question" to-day as it was eighty years ago. never were there more earnest and sincere people discussing what is to be done and how it is possible to transform slums into decent dwellings by act of parliament. we have a willing legislature, a desire to make laws for the benefit of the poor, and after many efforts the result has to be written down as failure and stagnation. it would almost seem as though voluntary effort in this affair had pronounced itself impossible, and it remains undealt with until those who are the real sufferers by the system feel strong enough to put it right. carlyle in an eloquent passage cries out in his passionate way: "might and right do differ frightfully from hour to hour; but give them centuries to try it in, they are found to be identical. whose land _was_ this of britain? god's who made it, his and no other's it was and is. who of god's creatures had a right to live in it? the wolves and bisons? yes, they; till one with a better right showed himself. the celt, 'aboriginal savage of europe,' as a snarling antiquary names him arrived, pretending to have a better right, and did accordingly, not without pain to the bisons, make good the same. he had a better right to that piece of god's land; namely, a better might to turn it to use--a might to settle himself there and try what use he could turn it to. the bisons disappeared; the celts took possession and tilled." interpreting this passage as one written in the true frenzy of prophecy, two things seem to me to take clear shape in the future outlook of the housing question. in the first place, it would seem that it will have to be settled by a celt, and in the second place it will not be achieved "without pain to the bisons." one would have thought that a better plan would be a small business parliamentary committee of all interests with power to enforce their decrees against owners and corporate bodies. something permanent is necessary, akin to the imperial defence committee, which knows no party politics. are we not here in the face of a real danger to the nation? already endeavours have been made to take this matter out of the common rut of party politics, but these efforts have not been altogether successful, and if the matter is not settled soon there would seem nothing for it but a forcible solution and a merry set-to between the celt and the bison, in which we may expect the celt will get the better of the bison but we cannot be sure that the poor will get all they need even from the celt. chapter xiii the two public houses . the alehouse. judged by no o'er-zealous rigour much this mystic throng expresses; bacchus was the type of vigour and silenus of excesses. longfellow: "drinking song." whatever you may think about it you cannot travel from charing cross to dijon through the hop-fields of kent to the vineyards of the côte-d'or without admitting that whether the vine be a gift of good or evil it has come to stay. bacchus is still full of vigour and has as many followers as ever. but the law has nothing to say to bacchus. the law is after old silenus. it lures him into a den and makes him drunk and then locks him up, and the holy willies wag their heads at his shame and collect money for his reformation. there are two public houses open to the poorer citizens--the alehouse and the workhouse. the rich man frequents neither, yet as magistrate or guardian he takes upon himself to lay down the rules by which they shall be run. these fussy, amiable, amateur bosses have conspicuously failed at their job. it is not to be wondered at. as an able manchester business man once said to me of his partner: "he loves sitting on the licensing bench, and thank heaven he does; it keeps him out of the office." but even if the bosses were capable and intelligent they could not hope to succeed in their work. public institutions should be governed by the men who make use of them. the rich man's public-house is so regulated--and what is the result? one may not approve of every detail of cookery or decoration at hotels like the ritz in london, or the adelphi and midland in liverpool and manchester, but the average middle-class man will find in them such reasonable standard of comfort as he desires. there is, at all events, space and light and air, cleanliness, and some luxury. on proper occasions and in fit places there is music, dancing, and billiards, and you may play a game of bridge with your friends when you wish, even for threepence a hundred, in a private room. moreover, there is always food of good quality obtainable at varied prices, and you need not take your drink standing at a counter, though you can if you wish to when there is an american bar. why may not the working man have similar entertainment at the pig and whistle? a complete answer to that question would necessitate a study of the position of artificers and labourers in the middle ages and a short history of the ideals of the well-to-do puritans. the rich have had two objects in view in their legislation about the working-man's public house. a certain section of the rich--the brewers--have aimed at a monopoly of the right to sell him ale, and nothing else, at the biggest possible profit to themselves. a second section opposing the first--the teetotal magistracy--have sought to make the public house as dreary and miserable a place as possible in order to punish the wicked man who wants to drink ale. between the brewer and the puritan the respectable working man with a normal thirst has been jockeyed out of his freedom. swilling and tippling in alehouses and private clubs has been encouraged; the reasonable use of ale--which mr. belloc rightly asserts to be the finest beverage in the world--has been crabbed and discouraged. except an opium den--of which i have only hearsay knowledge--there is probably nothing more comfortless and degrading than the lower-class alehouse of our towns and cities. even in the remote days of plato it was recognised--at all events by philosophers--that there was such a thing as thirst. "no one desires _drink_ simply, but good drink, nor food simply, but good food; because, since all desire good things, if thirst is a desire, it must be a desire of something good." further on in the discussion, socrates addresses ademantus thus: "then for any particular kind of drink there is a particular kind of thirst; but thirst in the abstract is neither for much drink, nor for little, neither for good drink nor for bad, nor, in one word for any kind of drink, but simply and absolutely thirst for drink is it not?" "most decidedly so," replies ademantus--who never on any occasion stood up to socrates and contradicted him. "most decidedly so." "then the soul of a thirsty man," continues socrates, "in so far as he is thirsty has no other wish than to drink; but this it desires and towards this it is impelled." "clearly so." if the licensing bench, and especially the teetotal portion of it, could once arrive as far in their studies of the subject as socrates had done, and could comprehend the zoological fact that man was a mammal with a thirst, they would be on the road to enlightenment, temperance, and reform. of course socrates knew all that the puritans know and a lot more about the rational satisfaction of love and hunger and thirst and the irrational and concupiscent desires that are attached to all natural appetites, but in dealing with the law of licensing in reference to the poor these considerations are not really important. what is wanted is equality. grant to the poor the same reasonable facilities of enjoyment that you grant to the rich, and leave it to public opinion to see that they are not abused. it is a grave disaster that the granting and regulation of licenses should have fallen into the hands it has. mr. balfour's observation "that among all the social evils which meet us in every walk of life, every sphere of activity, the greatest of all evils is the evil of intemperance" is useful as a peroration to any platform speech on the subject, but only makes the judicious grieve that with the opportunity to do exactly as he liked and the ability to draft useful legislation, mr. balfour did nothing whatever to improve matters and diminish the evil of which he was so sensible. section of his act does indeed enable the magistrates to grant new licenses and to make their own conditions as to the payments to be made by the licensee, the tenure of the license, and any other matters "as they think proper in the interests of the public." under this section if there were a licensing bench containing a working majority of friends of the people, men who had no social or political interest whatever either in breweries or teetotallers, it would seem that almost any experiment in model public houses could be made under any regulations that the bench chose to impose on the licensee. mr. balfour was perfectly right in telling us that "love of temperance is the polite name for hatred of the publican"; but what is the right name for love of the brewer? the fact is that with these two warring political factions in the field the ideal public house is not for this generation. no use will ever be made of section under present conditions, because whoever applied for a license, and however noble and beautiful the licensed premises were to be, however ideal the provision of food, entertainment and drink, and whatever the guarantees of good management, the combined opposition of the puritans and the brewers would always strive to defeat or destroy any effort to give the poorer classes pure beer in pure surroundings. the first step you have to take is to convince the unenlightened puritan that the alehouse is, or ought to be, as worthy a public house as the church or the school. this might be done by means of thoughtfully prepared text books of english literature. there is no great english book from the bible downwards that has not incidental good and holy things to tell you of "the inn." what an appetising volume could be written of the inns and innkeepers of charles dickens. how he revelled in their outward appearance and the inward soul of welcome which he found there. how he rejoiced in his sane english way over "the maypole," "with its overhanging stories, drowsy little panes of glass and front bulging out and projecting over the pathway," and honest john willet, the burly, large-headed man with a fat face, intended by providence and nature for licensed victualling. could we have met mrs. lupin anywhere else than beneath the sign of that "certain dragon who swung and creaked complainingly before the village alehouse door"? could mark tapley have acquired his saintly outlook on life anywhere but at "the blue dragon," and are we not full of joy to find him returning there to live happily ever afterwards under the "wery new, conwivial, and expressive" sign of "the jolly tapley"? how pleasant it is to assist crummles and nicholas over their bowl of punch and the beefsteak-pudding in the inn on the portsmouth road. pickwick is a cyclopædia of inns, each with its own human character, good, bad and indifferent. who has not stayed at a "peacock" with a "mantelshelf ornamented with a wooden inkstand, containing one stump of a pen and half a wafer: a road book and directory: a county history minus the cover: and the mortal remains of a trout in a glass coffin"? one could run on in pleasant remembrances of these beautiful and delightful places by the hour, but one imagines that even the most hardened political teetotaller must really know all about them, and perhaps in his dreams strolls into "the marquis of granby" and sips his glass of reeking hot pine-apple rum and water with a slice of lemon in it, and awakens to the horrible imagination that his astral body has wandered instinctively into a manifestation of his master and leader, the incomparable stiggins. one very noticeable matter about any old-world book in which inns are faithfully pictured is that in former days there was a real race of english innkeepers, independent licensed victuallers, not mere brewers' managers. there are still a few remaining with us who keep up the old traditions, but the political forces of brewers and teetotallers have squeezed this excellent race of public servants almost wholly out of existence. you remember the six-jolly-fellowship-porters whose bar was "a bar to soften the human breast" with its "corpulent little casks and cordial bottles radiant with fictitious grapes in bunches and lemons in nets and biscuits in baskets, and polite beer-pulls that made low bows when customers were served with beer." how could there have been such an ideal haven for the weary porters but for the sole proprietor and manager, miss abbey potterson, whose dignity and firmness were a tradition of the riverside? and then the dressing down she gave rogue riderhood. "but you know, miss potterson," this was suggested very meekly though, "if i behave myself you can't help serving me, miss." "_can't i!_" said abbey with infinite expression. "no, miss potterson; because you see the law----" "i am the law here, my man," returned miss abbey, "and i'll soon convince you of that if you doubt it at all." "i never said i did doubt it at all, miss abbey." "so much the better for you." and how much better not only for rogue riderhood, but for all of us, if we could once again make licensed victualling a great and respectable trade, and once again have a race of people managing businesses that they could really take a pride in. the death of the old boniface who owned his house and bought his beer in the open market was brought about by the amalgamation of the smaller breweries in the country, and the purchase of the bulk of the licensed houses by the big breweries. the teetotallers assisted this natural evolution by harassing individual owners with trumpery prosecutions, opposing alterations and transfers at licensing sessions, and surrounding the commercial life of an individual licensee with persecution and annoyance and continued threats of impending ruin. one man could not fight the great moneyed forces of the puritans, and the licensed holder was glad to get out of an impossible trade by selling his interest to the brewers. most of the licensed houses in the country now belong in everything but name to the big brewery companies. their political friends have given them a vested interest in their licenses, and the teetotallers having spent large sums of money and wasted much energy in manoeuvring their opponents into this excellent position, now sit sulkily at the gates of it, and as they cannot do any effective good themselves, take earnest pleasure in preventing any enlightened brewer from making the conditions under which he sells his drink better and healthier for the community. the result is that the poor man suffers. in the whole of this long unworthy struggle between the political teetotaller and the brewer, the higher interests of the poor and the real desires of the working classes are scarcely ever mentioned--still less considered. when he is in sufficient numbers, and is well enough off to do so, the poor man starts a club like his betters, and no doubt these are valuable institutions, but the club at the best does little for the wives and children, and is apt, unless the public opinion of it is sound, to lead a man astray owing to its very privacy. the puritan ideal is to drive the drinker into dark secret places, and as far as possible make his surroundings uncomfortable and degrading. the policy of the future is going to be to encourage the authorities--and, if necessary, get new and more up-to-date authorities--to replace the old dark, dirty puritan pub with a bright and enchanting reformed inn, fit for all classes of folk, with music, entertainment, and all manner of reasonable refreshment. nothing can be done until we recognise frankly that for years we have been moving along a false track towards a mirage castle in the air, and that if anything useful is to be achieved by administration or legislation we must turn our backs on the past and start along a new road. some few facts seem beyond dispute. the mere cutting down of licenses has in itself no demonstrable effect on the evil of the drink habit. the manners and habits of all classes of people are tending to temperance and sobriety, but the consumption of exciseable articles is increasing--last year there was an increase of £ , , over the figures of . what, then, is to be done? i think if we really want to do good in the matter and can approach it without a desire to make dividends out of brewery shares, or make alliances with teetotallers for political ends, we shall have to look to some extent to foreign examples for guidance in our difficulties. all of us who have had leisure and money to see something of foreign countries know that the squalid ideal of the brewer and the puritan is not the only possible solution of such social difficulty as there is in providing reasonable alehouses. the british public-house is a national disgrace thrust by the rich on the poor by means of law. the working man has no chance of amending things, as he has no say in electing the bosses. labour leaders short-sightedly favour the puritans' views. certainly, our public-houses being what they are, it is a choice of evils to keep out of them. but why should public-houses be what they are? i well remember at mayence entering a beautiful public hall--it was a rainy night, or the entertainment would have been out of doors--where there was a fine string band playing excellent music. men, women, and children sat at tables and had ham and bread and cake and beer and coffee, and those who wished to do so smoked. there was no swilling at counters, there was no forced teetotalism, there was no drunkenness; merely domestic liberty for rational enjoyment. why cannot there be sufficient free trade in the beer business of this country to allow an individual or, if you prefer it, an enlightened municipality--where such exists--to copy the sane entertainments of our german neighbours? a working man and his wife and children spend their evening listening to the band in a german beer-garden with as little sense of impropriety as lord and lady de vere and the hon. gladys de vere take their lunch at the ritz, or alderman and mrs. snooks lunch in the french restaurant at the midland. but in england these domestic felicities are for the rich alone. the brewers and puritans have given the poor man a mean tippling-house to booze in, and deny him anything better. his wife is looked upon as degraded if she joins him at the only place where he can spend his leisure, and the rich lawgivers put the true stamp on their own invention by enacting that it is an unfit place for little children to enter. the fact is that the public house should be built in the interests of the public. there seems no great decrease in the desire to drink good ale. it is a national taste, and, if the ale be good, it is probably at least as healthy, or healthier, than drinking tea as tea is brewed in cottage homes. but in the name of liberty and equality, surely if a man wants to drink ale in moderation he should be encouraged to do so in bright, pleasant surroundings, where he can spend his evenings at a moderate cost with his wife and children and meet his friends. he should be allowed to open such a place himself if the municipality will not do it for him, and the more civilised brewers should be assisted and encouraged by the licensing authorities to build big, spacious public houses, where the poor man could obtain similar entertainment to that provided for his wealthier brother. there is something almost shameless in the way in which the law of licensing is stretched to the uttermost for the rich and drawn to the narrowmost for the poor. one picks up a paper with an account of the latest midnight ball--the gayest event of the season--all in the interests of charity, of course. what has become of that closing time which, if overstepped by the poor, means police court for the criminals and loss of license to the innkeeper? it has been extended, no doubt, by a complacent magistrate, and you can sit down to supper at midnight, and all night long you can refresh yourself at american bars presided over by beautiful ladies of the chorus. one gathers there will be no closing time at all, as breakfasts will be served from three o'clock. in the intervals of the dancing there are to be famous music-hall turns. at some of these fashionable dances valuable prizes are given, at others these fall to lucky ones by some form of lot--not lottery, of course, for that would be against the law, and these entertainments are arranged by eminent leaders of society who are always within the law--well within it. it would be ill mannered to endeavour to stop so much innocent enjoyment of a class that has so little real pleasure by enforcing the licensing and other laws to interfere with their amusements. on the contrary, we should seek to use their example and better our own licensing circumstances by an appeal to their precedent. if it is good for leaders of society to sing and dance and sup after hours in their public houses, why should not the rest of society be allowed to follow their example and have their own beanfeasts in ample public houses undisturbed by the law? of course there must be a charity! give me an extension of license in the old kent road and i will provide plenty of charities and plenty of lads and lasses ready to sing mr. adrian ross's refrain: care has gone to sleep till morning, night's the noon of joy. for the young people of the poor are just as fond of a spree as those of the rich, and quite as ready to be charitable to the extent of their means after the same fashion. there is an excellent letter of charles kingsley's written to the "christian socialist" some sixty years ago that might well be circulated among licensing benches by the home office--though i believe it is considered officially to be bad economy to address printed common sense to the unpaid magistracy. naturally, autocrats resent or scoff at advice that has no sanction behind it. the teetotal attitude of mind and the quarrels it aroused very properly disgusted kingsley. he took no pleasure in hearing the water drinkers calling the beer drinkers "flabby, pot-bellied, muddle-headed, disgusting old brutes," and the beer drinkers retorting on the water drinkers that they were "conceited puritans and manichees and ascetics." he saw that the quarrel would not do any good to the cause of temperance, and in his honest enthusiasm blurted out the truth, the whole truth and nothing but the truth about his teetotal friends, like the good old christian warrior that he was. "on my honour," he writes, "unless the teetotallers show a more humble, gentle and tolerant spirit than is common among them i shall advise beer drinkers like myself and mr. hughes (tom brown of the schooldays) either to flee the country, or if their cloth allows them, which mine does not, prove by self-defence that a man can value his beer, and thank god for it with a good conscience, as tens of thousands do daily and yet feel as tight about the loin and as wiry in the arm as any teetotaller in england. honestly, i am jesting in earnest. i regard this teetotal movement with extreme dread. i deeply sympathise with the horror of our english drunkenness that produced it. i honour every teetotaller as i honour every man who proves by his action that he possesses high principle and manful self-restraint.... that a man should be a teetotaller rather than a drunkard needs no proof. also that a man should go about in a sack rather than be a fop and waste time and money on dress. but i think temperance in beer, like temperance in clothes, is at once a more rational and a higher virtue either than sackcloth or water." this was true doctrine then and is true doctrine to-day, and the sad fact that it fell on deaf ears and is still but half understood is the reason of our backwardness in licensing reform and the presence of the degrading public house which the law cherishes and protects. only the other day in a country town, on the application for a license, the police superintendent objected to the house on the ground of the small bar accommodation. his grace the duke, who happened to be in the chair, wanted to know if the proprietor of the house would prepare a plan for enlarging the bar accommodation. what could the proprietor do? the police wanted to herd the drinkers into a bar so that they could pop their heads in and see them all at once without any trouble, the bench wanted to do what the police wanted them to do. the interests of the poor, the cause of temperance, the betterment of the social life of the people were as irrelevant to the case as the flowers that bloom in the spring. at many a licensing session, too, you will listen to solemn warnings by the superintendent of police against the public being allowed to amuse themselves with penny-in-the-slot machines or gramophones or parlour quoits or the like. amusement is regarded with a natural horror by the puritan, and the friends of the brewer see in it a dangerous alternative to the duty of the working man to drink. one police authority threatened the license holders "that if they continued to allow these machines to be used in their licensed premises they did so at the risk of prosecution for allowing gaming." the gaming laws of england with their wholesale permission of gambling in one place and their retail persecution of gambling in another place, and their incapacity to know when a place is not a place or how otherwise, are a public laughing stock, but it is a grievous thing that they should be dragged out to drive a little harmless amusement out of the dingy tavern which is the only public institution the poor man has for rest and recreation. as a matter of fact, these machines, if they are used for gambling, are generally used to see who shall pay for drinks. in some bars in foreign countries a dice-box is always handy for this purpose. three or four friends come in and throw, the loser pays for drinks, and all are satisfied, and having had their drink they go. i am not upholding the custom as ideal, but i see little harm in it. in england, if three or four enter a public house, the etiquette in many places is for one to stand drinks, and for the rest in turn to offer to stand another round--an offer seldom refused--and for the rounds to continue until each has stood his corner. i would not go so far as to insist on a compulsory dice-box in every bar, but i fancy on the whole that it is an agent of temperance. every one who has given any thought to temperance as opposed to teetotalism, is agreed that what is wanted is the gradual elimination of bars and counters and the substitution of chairs and tables and big open rooms. in these must be provided tea, coffee, and all the usual lighter refreshments that you find in the better-class restaurants and hotels. in a big west end hotel you find every afternoon that the lounge is laid out for afternoon tea. i do not see why a working man and his wife should not have their tea in a lounge in their public house. i cannot understand why, if two friends after a day in the workshop want to have a friendly chat, they cannot find an institution where one can have his cup of tea and a muffin, and the other his glass of ale and a sandwich, and both sit at one table in a spacious room with comfortable surroundings, and if they do not heartily dislike it a gramophone to play tunes to them. that is impossible of attainment as the law now stands. if a millionaire was to offer to build in manchester a dozen working-men's cafés on the continental plan where any decent citizen could be pleased to take his wife and children, as our french and german neighbours do, the brewers, the teetotallers, the police, the licensing magistrates and the law would see that it was not permitted. and yet we know by experiment that in proper surroundings, reasonable facilities for refreshment do not lead to drunkenness. in the manchester exhibition of , it being a wonderfully fine summer, and licenses having been freely given for the occasion, there was an opportunity of testing whether under proper conditions opportunity led to excess. i never heard that it did. in the franco-british exhibition where reasonable facilities of refreshment were also given, it is said--and i have no doubt truly said--that though eight or nine million visitors passed through the turnstiles, yet there was not a single case of drunkenness. the problem is really a simple one, if we could only get administrators and legislators, but especially the former, to look at it in the interest of the man in the street. to the big brewery company beer is an effluent, and the public house is the conduit pipe through which they pour it into the public stomach. they have obviously no interest in ideal public houses--and why should they? they are business men on business bent. the teetotallers, on the other hand, regard the drinking of beer as a sin, and any public house as the house of the devil. why should they help the devil to make his house sweet and attractive, and make the path easier for the poor sinner who thirsts after beer? at present the average licensing bench consists of "half and half"--to use a trade term--of these elements. if there happen to be a few cranks on the bench who share the feather-headed notions set down in this chapter, they can always be out-voted by a combination of brewer and teetotaller. and for my part i think we shall stick to our glorious institution of the "tied-house" just as long as the working man intends to allow us and no longer. when reformed public houses are taken up by the men who use the public house, and when labour demands something better, the demand will be met. for the teetotaller is nothing if not political, and when he sees where the votes are, and not before, he will begin to see the error of his ways. meanwhile it will do him no harm to study the statistics such as they are, and discover that the number of licenses in a district has nothing to do with the amount of drunkenness therein, and to look back on the past history of the public house and recognise that he has for many years been the friend and ally of the undesirable brewer. the good citizen's policy should be the provision of pure ale in wholesome surroundings, thereby freeing the working class from the tyranny of the public house. to the teetotallers who hinder such a policy i can only repeat charles kingsley's message: "and i solemnly warn those who try to prevent it that they are, with whatsoever good intentions, simply doing the devil's work." chapter xiv the two public houses . the workhouse. pauperism is the general leakage through every joint of the ship that is rotten. were all men doing their duty, or even seriously trying to do it, there would be no pauper. * * * * * pauperism is the poisonous dripping from all the sins, and putrid unveracities and god-forgetting greedinesses and devil-serving cants and jesuitisms, that exist among us. not one idle sham lounging about creation upon false pretences, upon means which he has not earned, upon theories which he does not practise, but yields his share of pauperism somewhere or other. thomas carlyle: "latter-day pamphlets," "the new downing street." the current cant of the day is that the alehouse leads to the workhouse. from an architectural and hygienic point of view they have much in common, and perhaps when one comes to spend one's last years amid the unloveliness and official squareness and coldness of the workhouse one will be able to look back with a sense of grateful pleasure to the more natural squalor of the alehouse. it is a zoological fact that the human pauper, escaped for the day from a workhouse, makes like a homing bird for the alehouse, wherefrom we may draw the conclusion that the public for whom our two public houses are provided by an intelligent state prefer the alehouse as the lesser abomination of the two. i often wonder if there is any nation in the world that possesses an appetite equal to that of our own people for royal commissions and reports. i admit that i have the craving strongly myself--not to sit upon commissions, for i am a working man and the amusement is one for bishops, law lords, philanthropists and the leisured classes--but i buy the reports when they come out and sometimes read them--or some of them--or some part of them--and marvel at the patience and energy and research that have gone to the making of them, and sigh over the pity of it and the heart-breaking inutility of the whole business. here is the report of the royal commission on the poor laws, . the blue cover of my copy is already turning grey with old age, the pencil marks i made in the margin when i read it five years ago remind me of the splendid reforms that spread themselves out in its pages and made one feel that after all the world was a better affair than one had hitherto believed. this report is indeed literally a monument of industry. it sat from to . there are over twelve hundred pages in the report itself, which you can buy for the trumpery sum of five and six. the evidence of it is contained in many volumes, and if your library is large enough and you can afford to pay the price of a large paper set, you would have reading enough for the rest of your natural life. and what has come of it all? practically nothing. it is not to be supposed that either the report or the evidence has ever been read and studied by our ministers and rulers. a few magazine and newspaper articles have been made of it, then perhaps a book or two are written on the subject, the origin of which you can trace to the report, and after that gradually the thing sinks by its own cumbrous weight into the dead limbo of forgotten state papers. yet if there was a problem called the reform of the poor law in worthy of the consideration of the good men and women who gave up a large slice of their lives to working at it surely in there is still such a problem, and some of it is at least as urgent as the questions over which our political pastors wrangle and fight with such splendid energy. to write an essay on the law and the poor in relation to the relief of distress would be to traverse the whole ground of this famous report, but for my own part i only want to call attention to an institution typical of all the faults and errors of the poor law--the workhouse. for if the rich have by their laws made a mess of the alehouse, what about the other public-house--the workhouse? when you have no money to enable you to take your ease at your inn the only other hostelry open for you and your wife and children is the poor house. if there is one subject that has a more confused melancholy legal history than another it is the story of the workhouse. no doubt much has been done and something is doing, but it is difficult to see the real metal of the reformer's work for the great heaps of poor law dirt that our forefathers have left for us to clear away. for years the great english general mixed workhouse has been looking for trouble. it has not a friend even in the local government board office, and it has been condemned by all right-minded men and women time out of mind as an abomination of desolation standing where it ought not. yet there it is. a blockhouse, invented, built, and governed by blockheads, or at least beings with wooden blocks instead of human hearts. it is mournful to read the poor law history of the last eighty years and to learn how little we have done to dry the tears of the widows and orphans who become, through folly, misfortune, or ill-regulated industry, the wards of the state. and to understand how such an institution came into our midst, it is necessary to look back a bit upon the natural history of our poor law. whatever our failings may be as practical statesmen capable of translating philanthropic theory into practical statutory right action, no one can deny we are a great people for ideals. and the ideal of our poor law has from earliest days been excellent. coke in his institutes tells us that it was ordained by kings before the conquest that the poor should be sustained by parsons, rectors, and parishioners, "so that no one should die from lack of sustenance." that was, and still is, the ideal. no citizen is to die from lack of sustenance, and yet surely since the conquest, and even recently in our own time, some perverse person has escaped the careful eyes of the parsons, rectors, and parishioners, and crept away to an obscure corner there to die of hunger against the ordinance of kings in that case made and provided. coke got this phrase from andrew horn, the author or editor of that excellent treatise "la somme appelle mirroir des justices," which he must have compiled somewhere before , though it was first printed in . horn's "mirror of justices," is not, i believe, regarded with great reverence by the learned as a law-book, but coke enjoyed it and quoted it with approval, and whether or not some of its phrases were ever sound law i dare not express an opinion, but i will vouch for the excellence of andrew's sympathies. in writing of the criminal law he tells us that "the poor man who to escape starvation takes victuals to sustain his life, or a garment to prevent death by cold, is not to be adjudged to death if he had no power to buy or to borrow, for such things are warranted by the law natural." i suppose it is doubtful if this was ever good common law to be acted upon in all criminal courts, but one admires old andrew for setting it down and is glad to learn that even in the beginning of the fourteenth century there were writers on law who were trying to mitigate the rigour of the law in favour of the poor. they may not have actually stated what the law exactly was, but they had shrewd ideas at the back of their minds as to what it ought to be. if they confused the two themselves at times, and this confused other learned ones in after times, maybe no one has been much the worse for it. and when horn laid down in his quaint dog french that "les povres fusent sustenuz par les persones rectours des eglises e par les paroisiens," i fear he was writing of what ought to be rather than what was the existing common law of the relief of the poor. i am not at all sure that leaving the matter in the hands of parsons and parishioners has not been the cause of most of the failure of the poor law. if you have studied parsons and parishioners as a class, you do not find them peculiarly desirous of providing sustenance for others. queen elizabeth--a very practical lady, much thought of by parsons and parishioners--was evidently of the opinion that you were asking too much for the poor when you said that they should have sustenance for nothing. she it was who enacted that in return for the ideal saxon sustenance, which was apparently to be freely given, the poor person was now to give his work. churchwardens and overseers, instead of giving free relief had power to set to work children whose parents could not maintain them, and make their parents work too if necessary. this was the beginning of the system that made you chargeable on the parish, and gave the parish a right to make you work off some of your chargeability. in the eighteenth century came the interesting and disastrous experiment of indiscriminate out-door relief. the farmer parishioner discovered he could get a cheaper labourer by making his fellow parishioners pay some of the wages in out-door relief. a pauper was a better tenant to have, since the rent was paid out of the poor rates, a bastard child was an asset in a household, and in overseers are known to have shared out the pauper labourers among themselves and their friends and paid for the labour wholly out of the poor-rate. the scandals that had arisen led to the reform of the poor law in , which placed the administration in the hands of commissioners who were to see that the law was carried out, and by a natural swing of the pendulum they turned from an indiscriminate doling out of rates to favoured paupers to a system whereby the labourer was to find that the parish was his hardest taskmaster so as to induce him to keep away from the overseers and make parish relief his last and not his first resource. the ideal that the commissioners stood out for was that no relief whatever was to be given to able-bodied persons or to their families otherwise than in well-regulated workhouses. this was the beginning of the workhouse system which really made the workhouse a kind of prison for those who could not find work outside. a great deal has been done since then, and especially in recent years, to mitigate the lot of the poor. old age pensions, labour exchanges, medical insurance, unemployment insurance and the enlightened administration of some of the better boards of guardians have made great inroads on the negative inhumanity of the workhouse system. but unless it be in some of the more vigorous northern centres poor law work and poor law elections rouse but little enthusiasm. there are no doubt many men and women who enter into the service of the poor law from noble motives and do useful work, but the good they can do is very limited. the central authority seems to have no very settled ideals, different boards run different policies, some hanker after the flesh pots of labour cheapened by indiscriminate relief, others clamour for lower rates obtained by the inhumanity of not allowing anything but indoor relief. the guardians whose voices are raised only in the interests of the poor are scarcely heard by those who are clamouring for a lowering of the rates. one thing all reformers seem to be agreed upon, and that is that the general mixed workhouse with good, bad, and indifferent men, women, and children herded together within its four walls is an abomination of desolation. maybe it did its work in the past as part of the evolution of the poor law, dragging it out of a slough of corrupt and unwholesome administration, but a time has surely come when we can apply more scientific remedies to prevent the recurrence of such scandals, and there is no longer a necessity to sacrifice the lives and happiness of decent men, women, and children by the continuance of our workhouse system. for what is a general mixed workhouse? it is an institution that has been officially condemned since the commissioners of went their rounds and made their report. crowded together in the workhouses of that day they found a number of paupers of different type and character, neglected children under the care of any sort of pauper who would undertake the task, bastard children, prostitutes, blind persons, one or two idiots, and an occasional neglected lunatic. there was enough humanity among the commissioners of eighty years ago to see that what was urgently necessary was classification; the aged and the really impotent wanted care, peace, and comfort, the children wanted nursing, supervision, and education, hard working men and women in misfortune did not want to live in close proximity to the "work shy" and the "ins and outs." "each class," says the report, "should receive an appropriate treatment; the old might enjoy their indulgences without torment from the boisterous; the children be educated and the able-bodied subjected to such courses of labour and discipline as will repel the indolent and the vicious." this was reported of the workhouse in , this is again reported of the workhouse in ; there seems every reason to believe that it will be once more reported of the workhouse in . of course, many things are better to-day than they were eighty years ago. a different standard of sanitation and hygiene has arisen throughout the country and some of it has found is way into the workhouse. we have poor law schools and poor law infirmaries that were unthought of in those days and, as a whole, our buildings are clean and healthy; there is no ill-treatment in them as there was in the days of bumble; food, clothing and warmth are at least sufficient; and in communities where there is an exceptional board and a superior master and matron much is done to hinder the obvious evils of promiscuity. nevertheless, the evil overshadows the good, for it is the institution itself--the workhouse--that is as radically unwholesome and unfit to-day as it was in . the evils of promiscuity cannot be exaggerated. in the larger workhouses male and female inmates dine together, work together in kitchens and laundries and in the open yards and corridors, with results that are obvious. in a fortuitous assembly of such people the lowest common denominator of morality is easily adopted as the standard. what a terrible place is a general mixed workhouse to which to send children or young people. one cannot read some of the passages in the report for which mrs. sidney webb and her colleagues were responsible without shuddering at our own guiltiness and folly as ratepayers for allowing these things to be done in our name. "no less distressing," they say, "has it been to discover a continuous intercourse which we think must be injurious between young and old, innocent and hardened. in the female dormitories and day rooms women of all ages and of the most varied characters and conditions necessarily associate together without any kind of restraint on their mutual intercourse. there are no separate bedrooms; there are not even separate cubicles. the young servant out of place, the prostitute recovering from disease, the feeble-minded woman of any age, the girl with her first baby, the unmarried mother coming in to be confined of her third or fourth bastard, the senile, the paralytic, the epileptic, the respectable deserted wife, the widow to whom out-door relief has been refused, are all herded indiscriminately together. we have found respectable old women annoyed by day and by night by the presence of noisy and dirty imbeciles; idiots who are physically offensive or mischievous, or so noisy as to create a disturbance by day or night with their howls, are often found in workhouses mixing with others, both in the sick wards and in the body of the house." this picture is foul and detestable enough, but it is perhaps in the treatment of children that the workhouse system causes the greatest unintentional cruelty. there are some , children actually living in general mixed workhouses. a large proportion of these have no separate sick ward for children, and no quarantine wards if there should be such a thing as an outbreak of measles or whooping cough. young children are to be found in bed, with minor ailments, next to women of bad character under treatment for contagious disease, whilst other women in the same ward are in advanced stages of cancer and senile decay. children come in daily contact with all the inmates, even the imbeciles and feeble minded are to be found at the same dining table with them. in this huge state nursery the nurses are almost universally pauper inmates, many of them more or less mentally defective. a medical inspector's report in , stated that in no less than "sixty four workhouses imbeciles or weak-minded women are entrusted with the care of infants." one witness states that she has "frequently seen a classed imbecile in charge of a baby." in the great palatial workhouses of london and other large towns the commissioners found that "the infants in the nursery seldom or never got into the open air." they found the nursery frequently on the third or fourth story of a gigantic block, often without balconies, whence the only means of access, even to the workhouse yard, was a lengthy flight of stone steps down which it was impossible to wheel a baby carriage of any kind. there was no staff of nurses adequate to carrying fifty or sixty infants out for airing. "in some of these workhouses," they write, "it was frankly admitted that the babies never left their own quarters, and the stench that we have described, during the whole period of their residence in the workhouse nursery." seventy years have passed since it was written, and yet the "cry of the children" has as much meaning for us as it had for our grandfathers. the young lambs are bleating in the meadows, the young birds are sleeping in the nest, the young fawns are playing with the shadows, the young flowers are blowing toward the west-- but the young, young children, o my brothers, they are weeping bitterly! they are weeping in the playtime of the others, in the country of the free. and i am far from suggesting that all this evil is the result of any personal inhumanity of boards of guardians, masters or matrons or of their inspectors and governors in higher places. it is a matter in which each individual citizen must bear his share of blame for he knows it to exist, and he knows that he can have it altered if he cares to put his hand deep enough into his pocket, or if he will forgo some of the political luxuries dear to his party heart and give up the expenditure on them to the betterment of little children. other european countries have managed to classify their poor. in france the medical patients go to hospitals, the infirm aged poor have special "hospices," and the blind and the idiots are separated from the little children, each having their appropriate establishments. of course we take a great and to some extent justifiable pride in our local government institutions, but as the world becomes more complex and difficult, it is beginning to be seen that backward and less intelligent districts do not get the full value out of legislation and rates that a progressive and vigorous district obtains. it is one thing to pass an act of parliament and another thing to get a local elective body to administer it intelligently. if we could level up the worst administration of guardians to the best, a great deal would be done, but there is no manner of doubt that the state ought to impose a time limit on the general mixed workhouse and to enact that after such a date no board of guardians shall be allowed to house men, women, and children in the unclassified barracks in use to-day. if any body of guardians do not feel capable of carrying out such a decree the state must take their job over and do it for them. for eighty years the law makers have been told by their own experts what their workhouses were, and why they ought to be abolished and the fact that the greatest sufferers from the iniquity are poor children who cannot voice their complaints, and exist in dumb ignorance of the wrongs that are done to them, does not make our position as the wrong-doers any less deserving of damnation. chapter xv remedies of to-day ring out the feud of rich and poor; ring in redress to all mankind. tennyson: "in memoriam." when absalom cried out in a loud voice, "oh, that i were made judge in the land that every man which hath any suit or cause might come unto me, and i would do him justice!" he was, as we should say nowadays, playing to the gallery. yet, sincerely uttered, what a noble wish it was. let it stand as an expression of the still unfulfilled ideal of judicial duty and public service which we owe to-day to the poor of this country. every man has not as yet a judicial system that does justice to every man. and i fear that absalom's fine saying was only an election cry in his campaign against his father, recalling to the voters perhaps david's inconsistency in the theory and practice of justice in the matter of uriah and his wife. in those days the king, the lawgiver, and the judge were but one person, so that to be made judge was to be made lawgiver and king, and you not only administered the laws but made them as you went along. absalom was only an office seeker, but his election address contained a noble sentiment. nowadays the judges are merely servants of the law, like policemen and bailiffs and the hangman. nor does the king make the laws, nor are there in theory any professional lawgivers. the people--or at least so many of the people as get on the register and trouble to vote--make their own laws, or are supposed to do so. at least they have the power of choosing their representatives and servants to make what laws they want. if, therefore, a sufficient number of men in the street greatly desired amendment of the law in this or that direction, i have no doubt it would come about. but very few of the problems that trouble me come before the eyes of the average man in the course of his daily life, and he is scarcely to be blamed for not trying to mend that which he has not observed is broken and worn out. one man may know at first hand the story of a home ruined by reckless credit and imprisonment for debt, another may know a cruel case of lives blighted by our unequal divorce laws, a third may have seen the sad spectacle of an injured workman sinking from honest independence to neurasthenic malingering by reason of the poisonous litigious atmosphere of the workmen's compensation act. i can never understand why men and women hunger after the tedious, unreal, drab scandals portrayed in a repertory theatre when they could take a hand at unravelling the real problem plays of life in the courts and alleys of the city they live in. real misery and wretchedness is at least as pathetic as the sham article, and if you do your theatre-going in a real police court you may learn to become a better citizen. not that i advise all men and women to spend their leisure in these squalid surroundings. i recognise that the man in the street cannot at first hand study all these problems, and that is why i have set down something of the disabilities of the poor under the law, in the hope that my political pastors and masters may take an interest in these domestic reforms. there are many, i know, who think that a judge, like a good child, should in matters of this kind be seen and not heard. but for my part i am not of that opinion, for if a judicial person knows that the machine he is working is out of date and consuming unnecessary fuel, blacking out the moral ether with needless foul smoke, and if, moreover, he thinks he knows how much of this can be put right at small expense, should he not mention the matter not only to his foreman and the frock coat brigade in the office--who are the folk who supply the bad coal--but to the owner of the machine who has to pay for it and live with it--the man in the street? now there is a great deal that might be done to make the law less harsh to the poor without any very elaborate legislation, and certainly without any of those absurd inquiries and commissions which are the stones the latter-day lawgivers throw at the poor when they ask for the bread of justice. i like to read of lord brougham, as far back as , shivering to atoms the house of fraud and iniquity known as the court of chancery. i like to picture him pointing his long, lean, skinny fingers at his adversaries, and to see the abuses he cursed falling dead at his feet. could he have had his way, the very county court system which we have to-day would have sprung into being within a few months of his taking his seat on the woolsack, and he would have instituted courts of conciliation for the poor, to hinder them from wasting their earnings in useless costs. but the petty men who walked under his huge legs and peeped about were too many for colossus. and, to be fair to the fools of his time, the great giant was not himself a persuasive and tactful personality. sane, wise, and far-reaching as were the legal reforms he propounded, too many, alas, still remain for future generations to tackle. pull down your hansard debates of to-day, read them if you can, and say honestly in how many pages you find political refreshment for the man in the street. the small reforms of existing laws that weigh hardly on the poor are worth at least as much of parliamentary time as many of the full dress debates about ministers' investments and tariff reform and the various trivial absurdities that excite the little minds of tadpole and taper, but have no relation whatever to the works and days of the power citizens of the country. and if i were called upon to draw up a new magna charta for the poor--and i could draft all the reforms i want in a very small compass--i should put at the head of the parchment--"let it be enacted that no british subject may be imprisoned for a civil debt." i do not believe that if members of parliament would vote on this subject as i know many of them would really wish to vote that there would be a dozen voters in the "no" lobby, and i am firmly convinced, though here i must own my parliamentary friends are in disagreement with me, that they would not injure their hold on their constituencies. if there were any machinery in our unbusiness-like parliament for dealing with social subjects on a non-party basis, imprisonment for debt would have been abolished long ago. the proposal is, however, a proposal to ameliorate the bottom dog, and the human bottom dog is poorly represented in the great inquest of the nation. the foreign bird whose plumes adorn the matinee hats of our dearly beloveds, the street cur who might find a sphere of utility in the scientist's laboratory, the ancient cabhorse who crosses the channel to promote an entente cordiale by nourishing the foreigners--all these have friends, eloquent and vigorous for the lives and liberties of their especial pets; but the poor man who goes to gaol because he cannot pay the tally-man has few friends. there is no getting away from the fact that political influences are against the abolition of imprisonment for debt. i remember many years ago--more than twenty, i fear--a learned county court judge laughing at the eagerness with which i threw myself into a newspaper campaign against imprisonment for debt. "i, too," he said, "used to think i should live to see it abolished, and you think that merely stating unanswerable arguments against it is likely to lead to results. well, i used to think that way about it at one time, but it is not a matter of argument at all; it is all a case of vested interests and nervous politicians. some day another lord brougham will come along and sweep the thing away as he swept away the old chancery courts and many another legal abuse, but i shall never see it done, and unless you are another methuselah you will never see it done." and then with a laugh of mock despair he added: logic and sermons never convince, the damp of the night drives deeper into my soul. i am beginning to think that my old friend spoke with the tongue of prophecy, and he was certainly right about the vested interests. the three parties in english politics have a curious attachment to imprisonment for debt. they do not allude to it much on the platform or in the house, but it is there at the back of their minds all the same. the conservative opposition to the proposal is the more straightforward and natural. here is a system which enables the well-to-do to collect money from the poor, it encourages credit giving, and is thought to promote trading, it causes no inconvenience to the wealthier classes, it exists and always has existed, and it works well. why should it be altered, especially as there is no great demand for change, and change is in itself an evil thing? let us leave well alone. the liberal, off the platform, is much in agreement with the proposition of abolition, his difficulties are purely practical difficulties. he finds among his best supporters, drapers, grocers, tally-men and shop-keepers, most of them nonconformists and keen radicals, and all of them credit givers, carrying on their businesses under the sanction, more or less direct, of imprisonment for debt. these traders are not only voters and supporters, but they are centres of political influence. i remember in the south of england, thirty years ago, being told of a grocer in a small village who was a man whose support it was necessary for the candidate to obtain. i went along to see him and he agreed to support my friend. he was worth over two hundred votes, all of them in his debt and liable to be summoned at any moment for more than they could pay. in politics it is absurd to expect individuals to kick against the pricks, and i do not know of any politician who, deeply as he may believe in the justice and expediency of abolishing imprisonment for debt, has ever cared to take up the matter and place it prominently before his constituents in the hope of being able to convince them that it would make for the greatest happiness of the greatest number. the general belief seems to be that the influence of the shopkeeping and travelling trading classes would be used against such a quixote, and he would receive a severe warning to stick to the ordinary hack lines of political talk and not risk his seat tilting at windmills. the attitude of the labour party is even more peculiar. outwardly and individually they, of course, being more thoughtful and experienced about the wants of the poor, agree very heartily that imprisonment for debt is a class institution which should be abolished. but they certainly show no great enthusiasm in taking a hand at working for its abolition. this is partly due, no doubt, to the fact that they are business men and not theorists and have other and nearer work to do. they would, i make no doubt, support any measure of abolition, but it is essentially a legal reform and they would wait for some legal authority to initiate it. there is too, undoubtedly, at the back of the labour mind the idea that imprisonment for debt may be a very present help in time of trouble. in the select committee of mr. william johnson, a miner's agent, gave evidence in favour of imprisonment for debt; he asserted that nine-tenths of his men did not desire its abolition and were in favour of its continuance. later on he pointed out that in case of sickness or in the case of non-employment, "and probably in the case of strikes," credit given under the sanction of imprisonment for debt would be useful. unemployment and sickness are now largely dealt with by insurance, and from a public point of view the idea that strikes should be financed by the small tradesmen and, in case of their bankruptcy, ultimately by the wholesale trade, is not an attractive one. the reformer must always expect to find selfish class interests up against him, but it seems to me that the desires of those who want to finance strikes on credit and the rights of those who at present are selling shoddy on credit at extravagant prices ought not to weigh against the general public welfare. if, as i venture to think, the arguments against the last step in the abolition of imprisonment for debt are as valid as they were on former occasions, and if, as must be admitted, no evils have followed on the partial abolitions of imprisonment already made in and , then the mere fact that the public is apathetic on the subject and that members of parliament are apprehensive of interested opposition is not of itself sufficient excuse for those who are in authority in legal matters refusing to complete the reform by abolishing imprisonment for debt for the poor as it has already been abolished for the rich. of course, the mere abolition of imprisonment for debt would not to my mind be a sufficient protection of the poor unless side by side of it were enacted a homestead law greatly enlarging the existing exemptions from execution of the tools and chattels of a working man. the idea is that the home furniture necessary to the lives of the human beings forming the home should be incapable of being seized for debt. make the limit twenty pounds or whatever sum you please but clearly enact that sufficient chattels to furnish a reasonable house are exempt from execution. in america and canada these homestead laws exist and work well. it occurs to our cousins across the pond that it is a better thing to keep a home together than to sell it up for an old song to pay official fees and costs and something on account to the foolish creditor. the returns from a poor auction of a workman's household furniture are miserable reading. the landlord by distress or the tally-man by execution may get a few shillings for himself and pay away a few more shillings to bailiffs and others, but the cost of it to the poor is cruel. tables and chairs and perhaps a sideboard that represent months of savings and long hours of labour are in a moment of misfortune snatched away from their proud possessor and his home is a ruin. the homestead laws in canada, though not the same in every state, go much further than any laws we possess to prevent the breaking up of a home. in manitoba, for instance, executions against lands are abolished, though land can be bound by a judgment by registering a certificate, and the household furniture and effects, not exceeding dollars in value, and all the necessary and ordinary clothing of the debtor and his family are exempt from execution. the actual residence or house of a citizen to the extent of , dollars is also exempt. imagine what an incentive it would be to the purchase of house property and furniture if a man were to know that his cottage to the value of three hundred pounds, and its contents to the extent of one hundred pounds, would always be protected from bailiff and sheriff. what a check, too, such legislation would be on the reckless way in which credit is given. one exception to this rule seems to me very fair. there is no exemption of anything the purchase price of which was the subject of the judgment proceeded upon. thus a man cannot buy a sideboard, refuse to pay the price of it, and claim exemption of the sideboard from execution by the furniture dealer who sold it, though he could claim exemption of the sideboard against a money lender who had obtained a judgment against him, and wanted to recover his debt by sweeping his home away. here in england people are driven to shifts and evasions by means of bills of sale, goods put in the wife's name, and a number of other semi-dishonest devices to protect their homes. the sight of a home broken up and the furniture that has cost so many years of saving slaughtered at a third-rate auction for little more than the costs and fees of the bailiffs is no great incentive to a working man to spend his savings on good, home-made chattels. cheap foreign shoddy on the hire system is the order of to-day, and as a mere matter of encouragement of the better class home trade in furniture, carpets, drapery and household goods generally, we might consider the advisability of taking a leaf out of the statute book of manitoba. that debt should never be allowed to utterly destroy a family and a home seems to me such a clear and sane idea that it has always been a puzzle to me to try and understand the point of view of those who cannot see the matter in the same light. i know it is a degrading confession for anyone with even the pretence of a judicial mind to have to make but it is best to be honest about it. i rather gather i am a little obsessed, or abnormal, or feeble-minded, or senile perhaps nowadays about anything that touches home or home life. the home to me is the great asset of the nation. i do not want to see the home superseded by state barracks or common hostels or district boarding schools. on the contrary, i think individual homes are good for the development of citizens. for this reason i would protect the home from ruin by an extravagant husband or an extravagant wife in the interests of the children, who are the next generation of citizens, and whose welfare is, therefore, a debenture of the state. nobody would think of distraining on a pheasant's nest, or breaking up the home of a couple of partridges, or imprisoning the birds at breeding time in separate coops and cutting down their food merely because one of the birds had run up a bill for too many mangel wurzels or the other had run into debt for some fine feathers beyond her means. pheasants and partridges are too valuable to be so treated. their nests are protected from any distress or execution by poachers, and their bodies are protected from arrest by watchful gamekeepers under strict laws. i want to insure under my reformed laws that the human nest should be protected in the same way, and that judges should not only be allowed, but ordered, to take care that the home is not devastated by human misfortune or even by improvidence. we want game laws for the poor. in future our legislators must treat them as game birds--as indeed most of them are--and not as vermin to be devoured, they and their children, by the owls and kites of the underworld in which they live. and the second clause of my magna charta would be of almost simpler dimensions than the first. it would run: "let it be enacted that the county courts have jurisdiction in divorce." this would at once place rich and poor on an equality that is not yet even aimed at. i should not complicate this matter with the overdue reforms proposed by the divorce commission, much as i should like to see those enacted. they are matters of general interest that have waited for so many years that there is not much hardship in holding them back further, but the institution of a new tribunal of divorce is of vital and immediate importance to the poor. the act would be a practically unopposed act of one clause. it would only touch one vested interest, the london lawyers of the divorce court, and it would greatly please their brethren throughout the country. all details of costs and machinery could be left to rule committees, as is the common practice in other and more important matters that have come to the county courts, such as admiralty and equity jurisdiction, and a hundred other really difficult and complicated matters. and then would follow a lot of simple but important reforms that really only need the stroke of the official pen that is never made until the man in the street rises in his wrath and knocks the official funny-bone on the official desk and wakens him up to the fact that it is officially time to do some official act. for, of course, police court fines must be cut down and time given to pay them, and police court costs must be paid by the community, and bankruptcies must be made available to the poor, and the treasury must cease to rob the poorest bankrupts of £ , a year, and the limit of such bankruptcies must be raised to £ , so that poor little business men and their creditors may get what there is, rather than it should all go in costs and fees and payments to lawyers and accountants, who must give up sparrow shooting and hunt for bigger game. and, above all, we must remember to engross in big black text on our parchment what joseph chamberlain said about his workmen's compensation act, that it is to be worked without lawyers, or at least, that it is to be made one of the judge's duties to see employer and workman first and endeavour to bring them together before he issues his fiat that the affair is "fit for litigation." this little programme surprises me by its moderation. how any society of business men could palaver about it in any palaverment for more than a week passes my comprehension. i commend my new magna charta to a party in want of a programme. if they carried it in the first week of their ministry and then adjourned for seven years to see how the world went on without them, they would be the most sensible and popular government since the days of alfred the great. chapter xvi remedies of to-morrow happy he whose inward ear angel comfortings can hear, o'er the rabble's laughter; and, while hatred's faggots burn, glimpses through the smoke discern of the good hereafter. knowing this, that never yet share of truth was vainly set in the world's wide fallow; after hands shall sow the seed, after hands from hill and mead reap the harvests yellow. thus, with somewhat of the seer, must the moral pioneer from the future borrow; clothe the waste with dreams of grain, and, on midnight's sky of rain, paint the golden morrow! john greenleaf whittier: "barclay of ury." i remember in my youth being told in the words of marcus aurelius: "be satisfied with your business and learn to love what you were bred to." at the time i may have resented the advice, but i have lived long enough to see the wisdom of it. personally, at that period, i should have liked to have been an engine driver or at least a railway guard; later on in years i had thoughts about carpentering; and in course of time water-colour painting, etching, playing the fiddle, and even golf seemed possible of attainment. but when you really learn that these higher ranks of life are closed to you by your own natural limitations and find out that your business in life is to be a drab official in an inferior court, then marcus aurelius is indeed grateful and comforting. one can, after many years of it, learn to love even the county court. you have much the same outlook and experience of life and human nature as the old bus driver. every day brings you new passengers who accompany you for a few minutes on the journey of life, and you get to know many old ones and have a friendly crack with them over their domestic troubles. moreover, at moments your daily job brings you in near touch with the joys and sorrows and trials and daily efforts of poor people, and once in a way perhaps you can be of use, which to a child and to a grown-up who has any of the child left in him is always a jolly thing. when you have really got quite accustomed to enjoying your work the natural garrulity which your friends lovingly attribute to senile decay stimulates you to make them partners in your joy. the narrow circle in which you spend your daily life has become your only world. you find yourself quoting with approval "with aged men is wisdom, and in length of days understanding," and you begin to believe you are the only person who really does understand. childlike, you find dragons in your path that you want to slay, pure and beautiful souls are oppressed, and you fancy that you can release them from bondage; there are giants of injustice and persecution in the land whose castles you mean to turn into peoples' palaces. then you sit down to write your fairy tales again--but no longer for the children nowadays, since they are all grown up. these fairy tales are for journalists, philanthropists and politicians who make fairy tales and live on fairy tales; and believe me, there are no more essential fairy tales than stories about legal reform. only to the writer are they real, and to one or two choice child spirits who never grow old and still believe in a world where everyone is going to live happily ever afterwards. the way in which master ogre, the law, swallows up the poor is quite like a real fairy tale, and it would have even a happier likeness to the fiction of the nursery if we could tell of a jack the giant killer cutting off the wicked monster's head and rescuing his victims. i am under no delusions that this little volume is going to do any particular good in any particular hurry. i know by historical study that the way of reform lies through official mazes of docket and précis and pigeon holes, that legislative decisions are hatched out in some bureaucratic incubator that the eye of common man has never seen. i reverence the mystery that surrounds these high matters. it is really good for us that we should know so little of the reason why things are no better than they are. and then how good our rulers are to us in the matter of royal commissions and blue books! at our own expense we may really have as many of these as we ask for. i wish i could get folk to understand what a lot of sterling entertainment there is in blue books. all the earnest ones, all the clever ones, all the cranky ones of this world set down their views and opinions on any subject at any distance from that subject, and wrangle and argue and cross-examine each other, and then the good government prints it for us all verbatim and sells it to us very very cheap. practically, i dislike the shape of a blue book, and æsthetically they do not match my library carpet when they are lying around, which is a disadvantage, but i must own that if i were banished to a desert island i would rather have my blue books than much of what is called classical literature. the evidence is the best reading--and when one comes to the final report i generally find the minority report to be the thing one is looking for, as it is usually the minority who want to do something. but in some subjects, divorce for instance, things are moving so hurriedly during these last few hundred years that actually there is a majority in favour of legislation and reform. not that this makes the slightest difference as to any actual reform being done. the feeling of security that nothing is ever going to come of it makes it a safe and reasonable thing to print the most advanced views at the expense of the state. the physical weight and size of these volumes have been carefully considered and the whole format cunningly designed to repel readers. nothing ever comes of blue books, and i do not suppose anything ever will come of them. when i turn over their dreary pages i find myself humming kipling's chorus-- and it all goes into the laundry, but it never comes out in the wash, 'ow we're sugared about by the old men ('eavy sterned amateur old men!) that 'amper an' 'inder an' scold men for fear o' stellenbosh. dickens had the same impatience of the heavy sterned brigade and invented his immortal circumlocution office, and doubtless genius is entitled to deride these substantial state institutions. personally, i find them very english and valuable. the more energetic of us may take our pleasure in giving friendly shoves to these heavy sterned christians, but their inert services to the community are not to be undervalued. but for this immovable official wall who knows what reforms, unnecessary and ill-advised, might have been carried through. if lord brougham could have had his way much that i am writing about to-day would long ago have happened. the heavy sterned ones sitting on the lid prevented the opening of the pandora box with its promises of affliction for the human race in the shape of legal reform. they have left these things over until to-day and brought me amusement for idle vacation hours. at least, let me be thankful to them and sing their praises. i remember when i was planning out these chapters being the victim of a most terrible nightmare. a newspaper with a king's speech in it was thrust before me and every one of the reforms i had already written about was promised to be passed within the session. i remember smiling in my dream, knowing what parliamentary promises were, and then as i was gliding down the strand a silent phantom newsboy handed me an evening paper. there it was in black and white, every bill was passed--there was nothing left to write about. i awoke with a cry. it was a terrible shock, and it was some moments of time before i could realise that such a thing was absolutely impossible. and, of course, when you think of the large number of things that you want done and recollect that nothing ever is done that a man really cares about in his own lifetime it was absurd of me, even in a dream, to believe that anything was coming between me and my little book. indeed, i have hopes that for many years to come it may be regarded as a popular primer about legal reform for future generations who wish to while away idle hours in the luxury of vain imagination. i should like to interest the man in the street about legal reform and to see him at work remedying some of the more obvious of the existing abuses i have referred to, but i am under no delusion that such reforms would bring about the millennium. it is good to do the pressing work in the vineyards on the slopes of the mountain, but it is permissible for poor human man to have his day off now and then to climb on the hilltops and gaze out on the limitless ocean of the future and indulge in wild surmises of the after-world. the remedies of to-day are really tiresome parochial affairs compared to the remedies of to-morrow and hardly seem worth troubling about when one considers that even if you passed them all this year in a century or two your new statutes would be out of date and only fit for the scrap heap. bacon tells us that time is the greatest of all innovators, but he does not explain to us why, unlike all human innovators, time is in no hurry about it. i have quite distinct beliefs, which to me are certainties, as to how time will reconcile the law and the poor in the centuries to come, when our social absurdities and wrong-doing will not even be remembered to be laughed at. the law will never be a really great influence for good until it is utterly conquered, put in its proper place in the world and based on the principle of love. in other words, when the law of love receives the royal assent no other law will be necessary. nineteen hundred years ago a new principle was introduced into the world. it was the principle of unselfishness, and its apostles were labour men. in relation to man's personal life it has made some progress, but in practical social politics its business value is not yet fully recognised. still, a beginning has been made, and that old snail, time, is doubtless satisfied with the pace of things. let us remember hopefully that two thousand years ago unselfishness as a basic principle of life, doing to others as you would be done by, promoting peace and good will instead of strife and ill will--these ideas as business propositions were as unknown then as railways, telegraphs, motor cars, and aeroplanes. a vision of to-day would have been a wild fairy tale to marcus aurelius, a vision of two thousand years hence would be incomprehensible to us. one does not mean, of course, that unselfishness had never before been preached as an ideal, but a society based on the common quality of all its members placing the interests of others above their own was a new notion, and the novelty of it has not yet worn off. nevertheless, love and unselfishness have achieved sufficient lip-service already to make me hopeful of their future, and i foresee a time when they will be the foundation of the laws of the world, and the preamble to every statute will be "blessed are the peacemakers." some day when the chinese send over a mission to heathen england, missionaries will go about the country destroying all the boards on which are written the wicked words "trespassers will be prosecuted." but i hope we may not have to wait for a foreign mission to teach us our duty. this phrase, typical of the law of to-day and eloquent of the claims of the rich to fence the poor off the face of the earth, must utterly disappear when the new spirit of the law is made manifest. we have no sense of humour. on sunday we intone to slow music our desire to forgive our enemy his trespasses; on monday we go down to our solicitor to issue a writ against him for the trespass we have failed to forgive. the old notice threatening prosecution is really already out of date. it ought, of course, to read, "trespassers will be forgiven." for my part if i met with such a notice, i should hesitate before i walked across the owner's land; whereas to-day, when i am threatened with prosecution, my bristles go up, i scent a right of way, and as like as not proceed in my trespassing out of pure cussedness. there are a lot of other folk besides myself who are built that way. i know a little girl of five whose chief glory in life is to walk "on the private," as she calls it, when the park-keeper is not looking. it is that constant "don't!" and "you mustn't" that rouses the rebel in us. the less forbidding there is, the easier the path of obedience. i hold no brief for trespassers. i know it is naughty to trespass. but in the present state of my evolution there is so much of the original monkey in me that when that "monkey is up," to use a phrase dear to cardinal newman, i go astray. so do many of my best friends. i have the same belief in the evolution of the moral world and its onward movement that i have in the revolution of the physical world and its rotary movement. for this reason i expect my great-grandchildren of two thousand years hence to be much better behaved than i am. you can see it coming along in your own grandchildren unless your sight is getting dim. and i am quite clear that my own manners are an improvement on my great grandfathers, who lived in caves, and, when they had disputes, made it clubs, and battered each other strenuously until it was proved which had the thickest skull, when he of the toughest cranium was adjudged to be in the right. the vigorous legal procedure of the cave men sounds laughable enough to us nowadays, but does anyone think that two thousand years hence superior unborn persons will not be smiling superciliously over the history books that record the doings of our judges, our hired counsellors, our sheriffs, our gaolers, and our hangman? it was only in the recent reign of good queen bess that the ordeal of battle was given up. the abolition of that old-world lawsuit must have been painful to the conservative mind. and there was a lot to say for it. from a sporting point of view, what could be better than to go down to tothill fields in westminster, as you might have done in , to see a. b. battering c. d. to the intent that whichever knocked the stuffing out of the other gained the verdict? if you look at it from a healthy, open-air point of view, maybe it was better for everybody than sitting in a stuffy court and listening to two bigwigs splitting hairs to the resultant financial ruin of one of their clients. one reason, no doubt, that trials by battle were abolished was that they gave the poor at least as good a chance as the rich. i remember a good story--it is an old one, but still quite good--of a noble lord and landowner who net a collier trespassing in the neighbourhood of wigan. "my good man," said my lord, "do you know you are trespassing?" "well, wot of it?" "you have no right to be walking across my land." "i'm like to be walking across somebody's land, i've noan o' me own." "well, you must not come across mine." "how do i know it is yours, and who gave it you?" "well, this land," replied the noble lord, "belonged to my father and grandfather and his father for many generations." "but how did thi' first grandfeyther get it?" persisted the collier. "well, as a matter of fact, it was granted by the king for services rendered. i may say," my lord added proudly, "that my ancestors fought for this land." "did they, now?" said the collier, "then tak off thi' coat an' i'll feight thee for a bit." one can see from this anecdote that it would never do to return to ordeal by battle. and though individual fighting by violence to assert rights is out of date and not permissible, yet in the affairs of the collection of human beings known as nations the horrible waste of armaments and the menace of war are living evidence of the ultimate tribunal to which we still appeal. no one really believes that force and violence are sane remedies for the evils of the world, and the whole history of mankind shows a gradual decline in the practice and use of them. in each succeeding generation our children will be nearer the truth than we are, and further on the journey towards the end when the rule of love and unselfishness will be the only law of the universe, and will enforce itself without judges, juries, or policemen. and lest anyone should say that all this is the mere vague raving of prophecy, let me set down a short, practical catalogue of what i expect the remedies of to-morrow to bring about in, say, two thousand years. in the first place, the disabilities of the poor that i have written about in these pages will all have been abolished and forgotten. crime will be regarded as a disease, and it will be as inhuman to treat the criminal with harshness as it is to-day to torture lunatics after the methods of a hundred years ago. every citizen will have a right to sufficient food, clothing, housing, and entertainment in exchange for reasonable hours of work. the spirit of humanity will so greatly have been improved that it will be very little necessary to extort proper conditions for the lives of citizens or to protect the weak from exploitation by the strong. litigation and war will be out of date and replaced by conciliation and arbitration. in a word, the reign of love and unselfishness will have commenced. we may not even see my beautiful world from afar, but this need not dismay us, for we know it is there, and we know that every effort we make to serve the cause of the poor helps to clear the path through the desert along which the coming armies of victory will march in triumph. the cause of the poor has always been the greatest cause in the world, and the generation that has at length understood it, and fought for it and won it, will find itself standing at the open gates of the promised land. index abinger, lord chief baron, his judgment in _priestley_ v. _fowler_, , , , ademantus, administration orders in bankruptcy, - alehouse, the, - "alton locke," slums described in, american judiciary and working classes, , , ; and workmen's compensation, appeals, cost of, artisans dwelling act, , asquith, right hon. herbert henry, on workmen's compensation, _attorney-general_ v. _the edison telephone co._, bacon, lord chancellor, bail, unnecessary refusal of, ; statistics of this, , balfour, right hon. arthur james, on intemperance, , bankruptcy, - ; failures due to extravagance, - ; not open to the poor, ; administration orders, ; exorbitant treasury fees, - bell, alexander graham, belloc, hilaire, bentham, jeremy, on legal evidence, bias in judges, - bills of sale acts, black act, , blasphemy laws, , blue books, , bradlaugh, charles, bridewell, the, - , bright, john, brougham, lord, on imprisonment for debt, , ; on the evidence amendment act, ; on chancery reform, , butler, samuel, cadaval, duke de, arrested on mesne process, _capias ad satisfaciendum_, , carlyle, thomas, on history, ; on language, , ; on fools, ; on land question, cattle maiming, - chamberlain, right hon. joseph, on workmen's compensation, - ; on administration orders, , ; is housing work in birmingham, chancery court, and lord brougham, children, treatment of, in workhouses, , closing time, regulations for rich and poor, , clough, arthur hugh, cobbett, sir william, coke, sir edward, chief justice, his description of _peine forte et dure_, , ; on early poor laws, , collier, sir robert, on imprisonment for debt, , "compleat constable," the, - conciliation in trade disputes, conciliation, preliminary of, in france, corporal punishment, advisability of, discussed, - costs in police court, abolition desirabie, cottenham, earl of, his insolvency bill, , - county court procedure, expense of, court of criminal appeal act, , , , crabbe, on lawyers, cranmer, thomas, archbishop of canterbury, on divorce, , , crime and punishment, - criminal appeal, court of, criminal evidence act, , - criminal law amendment act, cruelty to animals bill of , davey, lord, on workmen's compensation, deane, mr. justice bargrave, on divorce, debt, imprisonment for, old testament view of, ; new testament view of, ; greek law of, ; roman law of, ; in papal rome, ; in time of henry iii., - ; in eighteenth century, , ; in "pickwick," ; mesne process, ; debates on, in , ; in , - ; evils of, - ; arguments against abolition, - ; none in germany, ; nor in france, ; wastefulness of system, ; encourages improvidence, - ; in police courts, , ; political views on abolition of, - debtors act, , , - , debtors' prisons, - dendy, mr. registrar, on divorce in county court, denman, lord, speech on imprisonment for debt, dickens, charles, on imprisonment for debt, ; on the living wage, ; on the evidence of prisoners, ; on slums, ; on inns and innkeepers, - d'israeli, benjamin, slums described in "sybil," - distress, law of, divorce, - ; in time of edward vi., - ; act of , ; hard cases of poor, - ; necessity of using county court, - , dogberry, abolition of discussed, , edalji, edward vi., edward vii., eliot, george, elisha, and imprisonment for debt, , elizabeth, queen, her poor law, employers liability act, , erewhon, treatment of crime in, erskine, lord, and cruelty to animals, eviction, evidence, prisoners right to give, ; criminal evidence act, , ; of crown not available to prisoner, - exekestides, false pretences, , fielding, as a magistrate, _fieri facias_, fines in police courts, unfair incidence of, , ; time for payment of, ; statistics of, ; abolition of, france, no imprisonment for debt, ; divorce law, , ; preliminary of conciliation in, ; poor law, fuller, on burning of heretics, geographical distribution of crime, germany, no imprisonment for working men debtors, ; divorce in, gilbert, lord chief baron, , goldsmith, oliver, , gordon, cosmo, archbishop of york, on divorce, gordon, mr. justice, of australian labour court, governor of gaol, charity to poor debtors, grand jury, grantham, hon. mr. justice, ; on poor prisoners defence, gray, professor john chipman, of harvard, ; on judge-made law, haldane, viscount, , hale, sir matthew, lord chief justice, halsbury, earl of, on workmen's compensation, hard labour for unconvicted prisoners, , headlam, john, an old-fashioned dogberry, , , herschell, lord, on prisoners giving evidence, hogarth, , homestead laws of america and canada, , , hood, tom, horn, andrew, his "mirror of justices," housing question, - ; royal commission, , ; select committee, , identification of prisoners, present methods criticised, , imprisonment for debt. _see_ debt. innkeeper, independence of, jeremiah, and the living wage, , jessel, sir george, on imprisonment for debt, johnson, dr., ; on the poor in england, , ; on public executions, , ; on imprisonment for debt, ; on the formation of laws, johnson, william, miners' agent, his views on imprisonment for debt, judge-made law, - judgment summonses, statistics of, , judicial irrelevancy, judson, frederick n., author of "the judiciary and the people," justice of peace, utility of lay justices, kelvin, lord, kingsley, charles, ; on slums, ; on teetotallers, - , kipling, rudyard, landlord and tenant, - land transfer system, assists fraud, leniency to well to do in criminal courts, example of, , licensing, class regulation of, ; section of act of , ; effect of reducing number of licences, ; extension of hours for rich, ; prohibition of amusements, living wage, , , _lysons_ v. _andrew knowles_, mcmahon, m.p., on imprisonment for debt, malicious injury to property, , manitoba, homestead laws of, , marcus aurelius, , married women's property act, undesirable use of, - matthew, and imprisonment for debt, , maule, mr. justice, on divorce, maxwell, rev. dr., , mayence, public beer drinking at, medical officer of health, status of, menander, on marriage, mesne process, arrest on, ; abolished, mesnil, m. henri, on divorce, moryson, fynes, , , , newman, cardinal, ordeal of battle, , overbury, sir thomas, overcrowding, ; census statistics of, parry, serjeant, _peine forte et dure_, pepys, samuel, pickersgill, m.p., on prisoner giving evidence, pickwick, and imprisonment for debt, , piers plowman, on debt, ; on law and poor, , ; on lawyers, police courts, abolition of fines, poor law, - ; royal commission, report of, ; in time of elizabeth, ; in eighteenth century, ; in , ; general mixed workhouses, - poor man's lawyer, necessity of, - poor prisoners defence act, - _priestley_ v. _fowler_, - procedure and the poor, - public houses, - . _and see_ licensing. railway conciliation boards, and their working, , raleigh, sir walter, , _regina_ v. _thomas hall_, registrars of county courts and private practice, , "reformatio legum ecclesasticarum, the," ridley, sir matthew white, on workmen's compensation, rivers pollution acts, roe, gilbert, author of "our judicial oligarchy," , rogues and vagabonds, - ruskin, john, sabbatarianism, evils of, salford quarter sessions in , salisbury, earl of, , schuster, dr., on german system of debt collecting, scold, common, trial and punishment of, scots divorce, scott, sir william, _seisachtheia, the_, selden, john, on marriage contract, shop lifting by ladies, sims, george r., his "how the poor live," , _sittlichkeit_, slums, legislation against, smith, judge lumley, on divorce costs, , smith, rev. sidney, on prisoners' right to counsel, , ; on prisoners' inability to give evidence, smith, sir a. l., master of the rolls, on workmen's compensation, smollett, , snowden, philip, m.p., and the living wage, ; on strikes, socrates, on thirst, solicitors, speculative, solon, and imprisonment for debt, - starkie, sir thomas, stephen, mr. justice, decision in telephone case, stipendiary magistrates, want of in country, ; necessary in interests of justice, sumner, lord, , swift, on lawyers, , taylor, jeremy, his prayer for debtors, teetotallers, persecution of licence holders by, ; their ideals, ; charles kingsley's views of, - , telephone, legal position of, , tennant, mrs., report on divorce, thackeray, on prisoner giving evidence, torrens act, , treasury fees on administration orders, exorbitancy of, - , twelve tables, the, tyburn, , , vinogradoff, professor, warrington, harry, imprisonment for debt, , webb, mrs. sidney, her report on poor law, weston, richard, trial of, , whipping, punishment of, - , - witchcraft, workhouses, - . _and see_ poor law. workmen's compensation, - ; history of the law, of, - ; employers liability, ; in court of appeal, - ; in america, , ; , ; and conciliation, wyrley, cattle maiming at, york, archbishop of, on divorce, , bradbury, agnew & co. ld., printers, london and tonbridge. crown vo. illustrated. pp. price _s._ presentation edition, white vellum, _s._ net. letters from dorothy osborne to sir william temple. _pall mall gazette._--"we trust the new and beautiful issue of an ever-fragrant book will give it yet more readers and lovers than it has had before." butter-scotia, or a cheap trip to fairyland. pages. with a map of butter-scotia, many full-page plates and illustrations in the text. bound in specially designed cloth cover. _s._ second edition, pages, cloth. _s._ _d._ katawampus: its treatment and cure. _the world._--"one of the very best books of the season." _saturday review._--"the book is one of rare drollery, and the verses and pictures are capital of their kind." _pall mall gazette._--"a truly delightful little book...." with beautifully coloured plates by walter crane. price _s._ the story of don quixote retold. crown vo. pp. price _s._ _d._ lamb's tales from shakespeare. illustrated by a. rusden. crown to. price _s._ _d._ net. pater's book of rhymes. christmas stories for children of all ages. the first book of krab. pages, with many full-page plates and illustrations in the text. bound in specially designed cloth cover, _s._ _d._ royal vo. price _s._ katawampus kanticles. music by sir j. f. bridge, mus.doc., organist of westminster abbey. words by his honour judge e. a. parry. illustrated cover, representing kapellmeister krabb, by archie maccregor. may be obtained from sherratt & hughes, , soho sq., london w., , cross st., manchester, or all booksellers. _works by the same author._ nd impression. large post vo. _s._ _d._ net. judgments in vacation. some press opinions. _athenæum._--"they deal among other topics with the letters of dorothy osborne, the disadvantage of education, the craftsmanship of the drama and the nice problems of the kitchen; 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'if your lordship pleases,' give us another volume like this. it bespeaks a human man with a good heart as well as a clever head." the scarlet herring, and other stories. illustrated by athelstan rusden. pp. bound in specially designed cloth cover. price _s._ london: smith, elder & co. , waterloo place, s.w. transcriber's notes: passages in italics are indicated by _italics_. the following misprints have been corrected: " ast" interpreted as "past" (page ) "suceed" corrected to "succeed" (page ) "gods" corrected to "goods" (page ) "absolutley" corrected to "absolutely" (page ) "paliament" corrected to "parliament" (page ) other than the corrections listed above, inconsistencies in spelling and hyphenation have been retained from the original. our legal heritage king aethelbert - king george iii a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s.a.reilly@att.net th edition copyright (c) preface this was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase most of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination than a shilling. the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor lacey baldwin smith of northwestern university's history department and to professor james curtin of loyola law school for their review and comments on this book: the tudor and stuart periods: chapters - , and the medieval period: chapters - , respectively. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - . epilogue: - appendix: sovereigns of england bibliography - - - chapter - - - - the times: before a.d. - the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint axe was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. after this hunting and gathering era, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood graneries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basketwork or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plow. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls [small pointed tool for piercing holes in leather, wood, or other soft materials.]. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on plowed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. the celts took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazingland for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fuelled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offences of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. - the law - "these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m....frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a two-fold bot [damages for the injury], and shillings to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make two-fold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensaton for killing his freeman]. . if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. . [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], shillings. . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) . if a man lie with the king's maiden [female servant], let him pay a bot of shillings. . if she be a grinding slave, let him pay a bot of shillings. the third [class of servant] shillings. . let the king's fed esl [woman who serves him food or nurse] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole leod within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three- fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. . if there be feax fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be an injury to the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring]finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered by the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one be gegemed [pregnant], let bot be made with shillings. . if any one be cear wund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with leod gelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to the owner, and afterwards buy [the object of] his will from the owner. . if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with shillings. . if she become gaengang [pregnant], shillings; and shillings to the king. . if a man lie with an esne's wife, her husband still living, let him make twofold bot. . if one esne slay another unoffending, let him pay for him at his full worth. . if an esne's eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne, let him make bot with shillings. . let [compensation for] weg reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him make twofold bot [twice the value of the stolen goods]." - judicial procedure - the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. there were occasional meetings of "hundreds", which were households, to settle wide-spread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the druid priests decided all disputes of the celts. - - - chapter - - - - the times: - - the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earht such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abraisons. in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plow.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burh-gemots. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chainmail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . be not so mad as to tell your friend all your thoughts. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burh- gemot [a right of magistracy], and an appointment in the king's hall. he was bound to to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witenagemot and shire-gemot [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. - the law - alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. the importance of telling the truth and keeping one's word are expressed by this law: " . at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfil. but if he pledge himself to that which is lawful to fulfil, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him " let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. the word of a bishop and of the king were incontrovertible without an oath. the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. . love thou not other strange gods above me. . utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. . remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. . honor thy father and thy mother whom the lord hath given thee, that thou mayst be the longer living on earth. . slay thou not. . commit thou not adultery. . steal thou not. . say thou not false witness. . covet thou not thy neighbor's goods unjustly. . make thou not to thyself golden or silver gods." if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offence, as well wer as wite, according as he may have wrought. if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, s. as wite. if any one fights in a ceorlish man's dwelling, let him make bot of s.to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of s., let it increase twofold of the bot of the man with a wergeld of s. breach of the king's dwelling [breaking and entering] shall be s.; an archbishop's, s.; any other bishop's, and an ealdorman's, s.;. a s. wergeld man's, s.; a s. wergeld man's, s.; and a ceorl's s. if any one plot against the king's life, of himself, or by harbouring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. if any one with a band or gang of men slays an unoffending man, let him who acknowledges the death-blow pay wer and wite. if the slain man had a wergeld of s, let every one who was of the gang pay s. as gang-bot. if he had a wergeld of s., let every one pay s. as gang-bot. if he had a wergeld of s., let every one pay s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully-born daughter, or with his lawfully-born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offences which had not been before revealed, let him be half forgiven. if a man from one holdgetael wishs to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king s. as wite. "if any one steals so that his wife and children don't know it, he shall pay shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." "if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. "if a man seize hold of the breast of a ceorlish woman, let him make bot to her with shillings. if he throw her down and do not lie with her, let him make bot with shillings. if he lie with her, let him make bot with shillings. if another man had before lain with her, then let the bot be half that. ... if this befall a woman more nobly born, let the bot increase according to the wer." "if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." "if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of shillings and a wite [fine to the king] of shillings. if a male theow rape a female theow, let him make bot with his testicles." for the first dog bite, the owner pays shillings, for the second, shillings, for the third, shillings. an ox which gores someone to death shall be stoned. if one steals or slays another's ox, he must give two oxen for it. the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. - judicial procedure - cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." - - - chapter - - - - the times: - - there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken or jurisdiction over their own lands and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. stag-hunting, fox-hunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heir-land. most land came to be privately held from community-witnessed allotments or inheritance. book-land was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folk-land was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heir-land or book-land only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folk-land might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chevil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet-paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and bee-keeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers, tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man hald the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockels, winkeles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbo, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron-mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll [like a sales tax] for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox still was worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open-air markets such as billingsgate. there were wooden quays over much of the riverfront. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark was reachable by a bridge. it contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ), obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horseowners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmoot then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the ward-mote, and represented his ward at the folk-mote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed and a mint where reliable money was coined by a moneyer. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best-trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to ------ faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he as to be treated as a fugitive, and could be slain as for a thief, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. there was a celestial hierarchy, with heavenly hosts in specific places. god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements of the world articulated by aristotle: air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful and glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were drilled into skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay church- scot, a payment in lieu of first fruits of the land, to the pope. - the law - the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). everyone was to take an oath not to steal, which one's surety would compel one to keep. no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. "no woman or maiden shall be forced to marry a man she dislikes or given for money." "violence to a widow or maiden is punishable by payment of one's wergeld." no man may have more wives than one. no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his god- mother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. neither husband nor wife could sell family property without the other's consent. if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. "if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. "if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay s. to the king as fine." "if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. a man could kill a thief over twelve years in the act of carrying off his property over d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundred-man, who then called the tithing-men. all these neighbors had to then follow the trail of the cow to its taker, or pay d. to the hundred for the first offense, and d. for the second offense, half to the hundred and half to the lord, and half a pound [ s.] for the third offense, and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundred-man. if he did not go with them, he had to pay s. to the king. if a thief was brought into prison, he was to be released after days if he paid his fine of s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. measures and weights of goods for sale shall be correct. every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the money- smithy. no marketing, business, or hunting may be done on sundays. no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. no clergy may gamble or participate in games of chance. the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one half-penny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one half-penny as toll, and for a larger ship one penny." - ) foreigners with wine or blubber fish or other goods and their tolls. foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships. " . if the town-reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the tax-gatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind ... and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the good-will of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) - judicial procedure - there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shire-mote". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundred-mote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundred-mote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. "no one shall make distraint [seizure of personal property out of the possession of an alleged wrong-doer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evil-doing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." this lawsuit between a son and his mother over land was heard at a shire-meeting: "here it is declared in this document that a shire- meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e;.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folk-mote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's offiers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which has sworn.". a witness swore that "in the name of almighty god, as i here for in true witness stand, unbidden and unbought, so i with my eyes over-saw, and with my ears over-heard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. - - - chapter - - - - the times: - - william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other ane form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully-armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. his rule was strong, resolute, wise, and wary because he had learned to command himself as well as other men. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons's service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milk-cow, and work-oxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which could be folded up, e.g. at night. over the main door were the family arms. on the upper parts of the walls could be foxskins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill, or by a long handle. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet-paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communially in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. hand-held spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle- guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions; otherwise the entire household was of men. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean-shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady also wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long-term survival, and partly because of church pressure. when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne, ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witen of wise men. it dealt with fundamental matters of law, state, war, and church. its functions were largely ceremonial. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court.. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning peebles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshalls, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshalls came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering theis account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for travelling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the king, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. also, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy-armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salt-house or salt-pit in the local saltworks, from which they were entitled to obtain salt. in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. in the nation, there was a total of about , servi [landless laborers], over , borderii, nearly , coatarii and cotseti [held land or houses by service of labor or rent paid in produce], and nearly , villani. this survey resulted in the first national tax system of about s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became as pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long-distance trade, money-changing, and money-lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. - the law - the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. - judicial procedure - "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pick-axes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmoot, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmoots in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of pounds [ marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." - - - chapter - - - - the times: - - king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a care- giving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has been unjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother [william ii (rufus)], but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [ .] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her father], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother [william ii], except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder-fines which were incurred before the day on which i was crowned king; and such murder-fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were co-extensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and bee- hives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation and for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows with little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. the threads forming the warp of the fabric were fastened parallel on a double frame, of which the two ends rose and fell alternately and were worked by two pedals. to make the weft, the weaver threw a shuttle between them, from one hand to the other. since one loom could provide work for about six spinners, he had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oil-makers and rope- makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the arm-hole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artifical waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". to be free of something meant to have exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london. they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth-makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bath-houses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . and the citizens shall not take part in any [civil] case whatsoever outside the city walls. ) and they shall be exempt from the payment of scot and danegeld and the murder fine. ) and none of them shall take part in trial by combat. ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. ) and all the citizens of london and all their effects [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmoot [meeting of the community], or in any other court within the city. ) and the hustings [court] shall sit once a week on monday. ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [ ] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] nor ought he to answer without day and term, unless he have fallen into 'miskenning'[error in pleading], except in matters which pertain to the crown. [ ] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and hand-mill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master-forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. - the law - henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. - judicial procedure - courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he empaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure-trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprison of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters, such as inquiry by oath and recogniton of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hall-mote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wife-beating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offences on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the wood-mote, held every forty days, and the swein [freeman or freeholder within the forest]-mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. - - - chapter - - - - the times: - - king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after sheep-shearing and harvesting. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patch-work development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's alms-giving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bedlinens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices and are simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red-brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had home-made tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, clothworkers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, countryfolk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : pm. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [ s. d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark [ s. d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom. the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free mariatagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s.[two marks] to hav ea guild. the shoemakers paid s.[five marks]. in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free- stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge-gate as far as markesfliete and a ferry-boat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account." "and they shall have my firm peace." henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." john, when he was an earl and before he became king, granted these liberties to bristol about : ) no burgess may sue or be sued out of bristol. ) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). ) no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of s. ) the hundred court shall be held only once a week. ) no one in any plea may argue his cause in miskenning. ) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. ) no stranger-tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgement that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimoot [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimoot before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer [e.g. their merchant guilds; all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmoot in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corrody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmoot before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool-beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the older obligation of every freeman to serve in defense of the realm, the fyrd, which was a military draft. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a posse comitatus to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their plowable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. this was probably the old danegeld. barons and their tenants and sub-tenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough-horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an axe and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheep-skins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. the crusades' contact with arabs brought to england arabic numerals, which greatly facilitated arithmetic, arab horses, and an expansion of trade. the church decreed that those who went on these crusades would be remitted of his sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. (in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.) in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy- handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. - the law - no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. - judicial procedure - henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and non-performance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the travelling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in , twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), ) the repression of serious crime, and ) the relations between the lay and the ecclesiastical courts. the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawfulmen of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recogniton to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recogniton. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eye-witness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. if he passed the ordeal but was ill-famed in the community, he could be banished from the community. the ordeal was abolished by the lateran council of . as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. under the former assize, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eye-witnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. house-breaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defence died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trepass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark [ s.] and put her land in pledge in his court and did not want to render the / mark [ s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty- eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark. pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an axe and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of...[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the house-breaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frank-pledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute. therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill- treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.][to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cart-load, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in re-establishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some foot-boys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. - - - chapter - - - - the times - - baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenellated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. if the hall was on the first floor, the fire might be at a hearth in the middle of the floor. sometimes the lord had his own chamber, with a sleeping loft above it. having a second floor necessitated a fireplace in the wall so the smoke could go up two floors to the roof. other rooms each had a fireplace. often the hall was on the second floor and took up two stories. there was a fireplace on one wall of the bottom story. there were small windows around the top story and on the inside of the courtyard. windows of large houses were of opaque glass supplied by a glass-making craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were home-made from hair and hemp. there were water mills and/or wind mills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the wind mills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. it had been long customary for the groom to endow his bride in public at the church door. this was to keep her and her children if he died first. if dower was not specified, it was understood to be one-third of all lands and tenements. from , priests taught that betrothal and consummation constituted irrevocable marriage. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff had power to raise a posse of armed men to restore order [posse comitatus: power of the county]. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french. latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. . . there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. . . there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden. . . the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. . . the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. . . the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. . . a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent enquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets were variable in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers and studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would induce combustion at a fixed distance. these insights made it possible for jewellers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the the central parts of the globe over the image. he knew about magnetic poles attracting if different and repelling if the same and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. care-giving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in ward moots, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the town-moot and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at mid-day. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or story-telling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: . and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle- on-tyne or any other minister shall not make a scotale. . and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. . we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / th of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for cross-bowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. - the law - the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks [ pounds or s.]; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine. the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offence only according to the degree thereof, and for a serious offence according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offence and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defence in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [shield military service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their moveables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offences made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be stedfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny, called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publically announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. - judicial procedure - the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in , the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in , a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by non-standard widths, selling wine by non-standard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justicable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and enquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or mill-wheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases with short summaries are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventur. the price of the horse and cart is s. d. s. d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to actually take place. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. ruislip [middlesex]. saturday after the purification of the blessed virgin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonour s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen... and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men...because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge, geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. ....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. - - - chapter - - - - the times: - - king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all free-holders who held land of the value of at least s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the hand-held spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenellated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the left-overs to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and pack-saddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's immperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metal-work, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food-production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry-tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hall-mote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade- guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blade-makers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candle-wicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. the model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. the king still exercised the power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster beside the royal palace. london paid its representatives s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking is now a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in law-making, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. from , statutes were recorded in a statute roll as they were enacted. by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking-utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretarieat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. foreign cloth-workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . in , the commons voted a tax of / th on moveables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants wree under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. - the law - edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. these statutes were: "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his waynage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. young salmon shall not be taken from waters in the spring. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s.[yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath were not recognized for married women. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. (this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple (i.e. with no subdivisions) and land held for life. no grantee or his heirs could alienate the land held in fee tail. the donor could give directions that the land could remain to another person rather than reverting to himself. (interests in remainder or reversion of estates in land replace the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs.) in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. (since kent was nearest the continent, money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. - judicial procedure - the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g.treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. murder still meant secret homicide. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safe-keeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a non-party was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. their law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: . hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . william derwin for a trespass, d.; pledge, william sperling. . hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . john palmer is put in seisin of his father's tenement and gives the lord s. d. as entry money. . william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . william frith for subtraction of work, d. john reginald for the same, d. john of senholt, d. william ketelburn, d. . for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following:- -godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quit-claims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. . geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. . hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbours; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison til the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an enquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. - - - chapter - - - - the times: - - waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business, ceased for two years, interrupted by the plague. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been d.- d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquish their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. they spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the dais end of tahe great hall. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two plow oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shrivelled peans and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, hand-held mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. fresh water was brought into towns by pipe or open conduit as a public facility, in addition to having public wells. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung-carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. stairwells between floors had narrow and winding steps. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became the first guilds to receive, in - , charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades and sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruiterer, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offences such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: . none but a freeman of the city shall make or sell gloves. . no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . no one shall entice away the servant of another. . if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. . no one may sell his goods by candle-light. . any false work found shall be taken before the mayor and aldermen by the wardens. . all things touching the trade within the city between those who are not freemen shall be forfeited. . journeymen shall be paid their present rate of wages. . persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheep-skin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in , the horsedealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horsedealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one half-penny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were not longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery, fraud, was punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphillus. prominent londoners sought to elevate their social position by having their family marry into rural landholders of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: faithfully serve the people in undertaking their cures, take reasonably from them, faithfully follow their calling, present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary; to be ready, at all times when they should be warned, to attend the maimed or wounded and others, to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. children's sweets included gingerbread and peppermint drops. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and the courts, replacing norman and latin. a will in in which a wealthy citizen arranges for one son to become a attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [ , s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [ s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks [ , s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. william of ockham, an englishman educated at oxford and teaching theology in paris, taught that the primary form of knowledge came from experience gained through the senses and that god might cause a person to think that he has intuitive knowledge of an existent object when there is in fact no such object. most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his school-teacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. paper supplemented parchment, so there were more books. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. marco polo's discoveries on his journey to china were known. the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baronness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly re-elected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is law-making and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france in , the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. (the staple statute remained basically unchanged for the next years.) the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [ s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [ s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which henry was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. - the law - after the black death of these statutes were enacted: high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, [quit-claim deeds] and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualler a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. and anyone could bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one was to forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound [or other hound or dog] to hunt, nor shall they use nets or cords or other devices to take [deer, hare, rabbits, nor other gentlemen's game], upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for reapir of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. - judicial procedure - the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by the law of england, or in tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at their will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. the court of the king's bench worked independently of the king. it was exceptional to find the king sitting on his bench. it became confined to the established common law. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament can change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there is a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in , there was another statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, clothworkers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of is a case on the issue of whether a court-crier can be seized by officers of a staple: "edmund hikelyng, 'criour', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defence of the said lands and tenements by the bribery (?) and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. - - - chapter - - - - the times: - - this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. and the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster for the crown. great lords fought each other for property and made forcible entries usurping private property. shakespeare's histories deal with this era. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. nobles employed men who had returned from fighting in war to use their fighting skill in local defense. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued in this role because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with panelled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and table-cloths covered the tables. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the left-overs to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the standard number of meals was three: breakfast, dinner, and supper. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. the beds were surrounded by heavy draperies to keep out cold drafts. in towns these mansions were entered through a gate through a row of shops on the street. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had a curtained feather bed with pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and clothworkers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for hay-making. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middle-men for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. in london, shopkeepers appealed to passers-by to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and 'bankers and dorsers' to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather-sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dye-stuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money-lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. in london, grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates and turned themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles, aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers, paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a rateable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house, to serve him diligently, obey reasonable commands, keep his master's secrets, protect him from injury, abstain from dice, cards and haunting of taverns, not marry, commit no fornication, nor absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse-dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year (the number depending on the length of his membership in the company) and sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up pot-holes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the pm curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to take advantage to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, book-binders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular. town miracle plays on leading incidents of the bible and morality plays were popular. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; having to forego wife and family, they had much leisure time for mischief. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because mechanical clocks were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and highered standards of efficiency. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from pedlars, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but pedlars were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth-dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe was used for navigation by the stars. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. he was the last true warrior king. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. from about , tunnage on wine and poundage on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift his soul beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the kings' business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay-time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court and make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about co-conspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. - the law - the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony [penalty of loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat & drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year. [because of scarcity of laborers and other servants of agriculture] no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . lords - gold cloth, gold corses, sable fur, purple silk . knights - velvet, branched satin, ermine fur . esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year - damask, silk, kerchiefs up to s. in value. . esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . servants of agriculture, laborer, servant, country craftsman - none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. cordwainers shall not tan leather [to prevent deceitful tanning]. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may re-enter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . the spouse of a deceased person takes all personal and real chattels of the deceased. . for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . a child born before espousals is a bastard and may not inherit, even if his father is the husband. . if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. . a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. - judicial procedure - the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose, universities, the mayor and sheriffs of london, and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena [under pain of punishment, such as a heavy fine]. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issuea habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the th century is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and adeed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. - - - chapter - - - - the times: - - henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as non-resident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. arabic numbers replaced roman numerals, making multiplication and division possible. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of 'readings' to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone. there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. cows and sheep given could be leased out to villagers. buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. women and men wore elaborate headdresses. there are guilds of ironmongers, salters, and haberdashers [hats and caps]. on the outer periphery are mud and straw taverns and brothels. houses are beginning to be built outside the walls along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell-founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, clothworkers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. theologians had to admit that jerusalem was not the center of the world. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons", instead of at the request of the commons. - the law - royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , he proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace offiers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. statutes included: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any hawk imported, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or pay s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a cross-bow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the long-bow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of s. d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or forfeit s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime-fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or forfeit s. the fish shall be packed in the manner prescribed or forfeit for each vessel s. d. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. - judicial procedure - these changes in the judicial process were made by statute: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. up to , the star chamber heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. other changes in the judicial process were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it came to rarely function as a law court. the humanist intellectual revival also caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. - - - chapter - - - - the times: - - renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the third reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers as students. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependant on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. in , flemish physician andreas vesalius, who had secretly dissected human corpses, published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after there was a book listing hundreds of drugs and explaining how to prepare them, but their use was by trial and error. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being. the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers. these craftsmen then became wage earners of the leathersellers, but others of these craftsmen remained independent. before, the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmoot had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from am to pm in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of current christians, scholastic theologians, priests and monks, superstition, and ritual look absurd. he encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimmages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne. his purported reason was to have a son. the end of his six successive wives was: annuled, beheaded, died; annuled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state e.g. by executing them for supposed treason. one such was thomas wolsey, the son of a town grazier and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died. the king replaced wolsey as chancellor with thomas more, after whom he made thomas cromwell chancellor. cromwell, the son of a clothworker/blacksmith/brewer/innkeeper, was a self-taught attorney, arbitrator, merchant, and accountant. like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishoners and minister all sharing the wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. london then set up a poor relief scheme. the bridewell was established to set to work the idle in making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . villeinage was now virtually extinct. a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings; their rent became light - less that a shilling an acre. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdle-makers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was return to the subscribers of the capital put in plus an appropriate share of any profits made on the voyage. i.e. the money was divided up. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. the knights had % of the land, the nobles %, the church %, and king %. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the organ and the harp, precursor to the piano, were played. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cidar, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by blood-letting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. he started clinical diagnosis and treatment by highly specific medicines, instead of cure-alls. for instance, he used alkalies to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphillis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from planetary movements that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he regarded it as more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. - the law - a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offence. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offence. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offence. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any hand-gun or cross- bow unless he has , s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. french wines may not sell at retail for more than d. per gallon. a barrel maker or cooper may sell a beer barrel for d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and book-binders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. hemp of flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because so many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no cloth-maker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. offices may not be bought and sold, but only granted by justices of the royal courts. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. the year books ceased in . - judicial procedure - by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. - - - chapter - - - - the times: - - queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, and greek and roman history, philosophy, literature, and oratory. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she was so influenced by her reading of cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials' duty was to make the safety and interest of citizens its greatest aim and to design all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished dead those whom they hated. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror will be resented by the citizens, who in secret will choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. her credit reputation was so good that she could always get loans at small rates of interest from other countries. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen. elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic was now becoming a petticoat and the over-tunic a dress. their under-tunics became petticoats. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jewelled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs. except that barons' sons, knights, or men that could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: fieldworkers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from his own ground. there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms may have carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters, which replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards, cabinets, buffets from which food could be served, tables, chairs and benches with backs and cushions, sometimes with arms, lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. family portraits decorated some walls, usually in the dining room. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. more than medieval castles and manor houses, mansions were designed with privacy in mind. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. some sat above the fancy silver salt cellar and pepper, and some sat below. grace was said before the meal. noon dinner and supper were served by sewer, carver, cupbearer, and assistants. the lady of the house sat in a chair at the upper end of the table and was served first. fine clear italian glass drinking vessels replaced even gold and silver goblets. they ate from silver dishes with silver spoons. some gentry used two-pronged forks. there was great plenty and variety of meats to all but the poorer classes: beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. the idea of a long gallery was copied from henry vii and was used for exercise, recreation such as music and dancing, and private conversations. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household, held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. farmers' wives used looms as well as spinning wheels with foot treadles. since animals could now be kept through the winter, salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep-farming, which had taken about % of the arable land, was supplanted somewhat by crop-raising and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of the sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % was under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and book-sellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualling trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on a shoulder from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to sell when finished. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, haberdashers, salters, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some frame-work stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of the city. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher, and walter ralegh, the sea-fighter and writer, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enamelled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero, the "de officiis", the epistles and orations, and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical schoolday lasted from : am to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford, and eton with king's college, cambridge. the new charter of westminster ( ) associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were poor scholars or fee-paying members of the college. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise his own course of study with his tutor's permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer barre. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers and benchers, the latter of whom made the rules. readers gave lectures. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. many people kept diaries. letter writing was frequent at court. all forms of english literature were now in print, except for plays. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them, erasmus' new testament, "paraphrases", "colloquies", and "adages", sir thomas north's edition of plutarch's "lives of the noble grecians and romans", elyot's "the book named the governor", and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to faction. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing (e.g. excluding schools). it could burn other books and imprison their printers. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glove-maker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music and singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, tennis, and fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer was viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks of mythological or symbolic characters, riddles, wrestling, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. the bought ballads from traveling pedlars. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild-feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter. behide this the goods were made and/or stored. the towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws. the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, did foster order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimmages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. still, the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or reliques, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and against idolatry, gluttony, drunkenness, excess of apparel, idleness, and rebellion. these she considered more instructive and learned that ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated; and they were allowed to marry. the standard prayer was: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. but the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphletts. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. the puritans formed a party in the house of commons. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, shreds of gloves, earth coal, calamite stone, powder, saltpeter, lead manufacturing by- products, and transportation of leather. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. it was regulated as to each particular voyage and helped with problems by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by- laws, and to punish offenders against them by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (sons of members who were twenty-one), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost pounds. when share purchase did not suffice, redemption for such cash payments as could be obtained was resorted to. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offences during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade. (shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.) they paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demilances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for fire-backs, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, was made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, water-wheels and pumps are installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly-discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the ratepayers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields in the first part of elizabeth's reign. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . after exhausting every other alternative, the queen reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. her council had persuaded her that it was impossible for her to live in safety otherwise. francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. there experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. in , the spanish armada came to invade england, and was for the most part destroyed. in that battle, drake and other experienced sea- fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have commited to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis, that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic house-holders maintained catholic priests in hidden places in their homes. - the law - although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by use of a straw man. in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted it should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, tanners pewterers, bakers, brewers, glove- makers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrow-head-makers, butchers, cooks, or millers, so that agriculture will be advanced and idleness diminished. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. (this was designed to inhibit migration to the towns. it excluded three fourths of the rural population.) no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries. eating fish instead of meat in lent in the springtime remained a tradition.) for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. embezzlement or theft by a servant of his master's goods of s. or more is a felony. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. cut-purses and pick-purses shall not have benefit of clergy. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the price of barrels shall be set by mayors of the towns where they are sold. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. trials of noblemen for treason shall be by their peers. a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. loan contracts for money lent may not be for more than s. for each s. yearly. all loans of money or forbearing of money in sales of goods for less than this shall be punishable by forfeit of the interest only. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herd-man or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. a vagabond or mighty strong beggar [able to work] shall be whipped. any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. no bishop may lease land for more than twenty-one years or three lives. no bishop may alienate any possession of their sees to the crown. such are void. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. any innkeeper, victualler, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there and other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse and other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualling house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualling houses was intended for relief and lodgings of travelling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless apprenticed as such for seven years or the son or wife of a tanner who has tanned for four years or a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. tonnage [tax per ton] and poundage [tax per pound] on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offence; forfeiture of goods and lands and the king's protection, for the second offence; and the penalty for high treason for the third offence. any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [ , s.] marks and one year's imprisonment. the penalty for hearing mass is [ , s.] marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offence. slandering the queen is penalized by the pillory and loss of one ear, or by [ , s.] marks and three months imprisonment, at the choice of the offender. the second offence is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. - judicial procedure - jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. no only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victuallers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. trover gradually supplants detinue, in which there is compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed,(seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the amnor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [ , s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) - - - chapter - - - - the times: - - due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers miniscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. these classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about % of the population. their's was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as justices and as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least county-wide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to entails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and colonial possessions. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows, his horse is gelded, a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. his hog is stabbed. knaves steal his sheep. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their place. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, settes or forms, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen were among those who governed the nation. they often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or of lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in a one or two room cottage of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved because of deprivation to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, shipowners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. the law dictating what clases could wear what clothes was difficult to enforce and the last one was in . cotton chintzes, calicoes, taffetas, muslins, and ginghams from india were fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. toothbrushes, made with horsehair, were a new and costly luxury. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs are steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men preferred to be waited upon by pages and grooms instead of by their social equals. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming in. walls were wainscotted and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors, instead of the circular stone closed stairwells. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese- press house, brewery, stilling house, malt house, wood house, fowl house, dove cot, pig stye, slaughter-house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the s, towns were fortified by walled ditch instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. also, floors were of polished wood or stone and strewn with rushes in the country. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming in to use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and home-made wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horse-radish, sugar-cane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were plowed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears may be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets, and enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals and were orderly. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy the legitimate grievances of the rioters. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sung, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. adultery was subject to church court sanctions as was defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widow or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widows did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk-merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crack-down on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights and passion for liberty and justice. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. religion was much discussed by all and scripture was frequently quoted. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to put in his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishoners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace and became predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers (probably from old age pains) or having cats were further indications of witchery. when the king learned in that the puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, archery for men, leaping, vaulting, may- games, whitsunales, morris-dances, and may-pole sports. also women could carry rushes to decorate the church as they had done in the past. (still unlawful on sunday was bear and bull baitings and bowlings.) his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were just coming in. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar", aesop, terence's roman comic plays, virgil's "aeneid", the national epic of rome, cicero's "letters" reflecting roman life, sallust's histories showing people and their motives, caesar's "commentaries" on the gallic and civil wars, horace's "epistles" about life and poetry, poet ovid's "metamorphoses" on adventures and love affairs of deities and heros, or "fasti" on roman religious festivals and customs, donatus' grammar book, and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. there were not many girls' boarding schools. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. scholasticism was only starting to give way to modern studies. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studyed was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law (after seven more years of study), medicine (after seven years), divinity (required more than seven years), and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners (a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen). the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of any colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wineshops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. some american colonists sent their sons there. the inns were self-governing and ruled by custom. students were supposed to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians claudius galen and hippocrates, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. and included asking him about his symptoms and feelings of pain, looking at this eyes, looking at his body for spots indicative of certain diseases, guessing whether he had a fever, feeling his pulse, and examining urine and stools, though there were no laboratory tests. smallpox was quickly recognized. it was treated by red cloth being wrapped around the person and put up to cover the windows; this promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by blood-letting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. then he ascertained that the heart was a pump and that the valves in the veins prevented backflow and he followed the course of the circulation. the language of medicine became that of physics and mechanics, e.g. wheels and pulleys, wedges, levers, screws, cords, canals, cisterns, sieves and strainers. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except blood-letting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science and religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man ( ). in , the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of ideas. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he also studied the effect of cold in preventing animal putrefaction. galileo galilei, professor of mathematics at the university of padua in italy, conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held theory that heavier objects fall faster than light objects. he proved that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed = gravity times time. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. for this he measured time with water running out of a vessel. also, the rate of oscillation varies inversely as the square of their cord length, regardless of material or weight. from his observation that an object sliding along a plane slows down at a decreasing rate and travels increasingly farther as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a force: friction. he conceived of the air offering a resistant force to an object in motion. he expanded on aristotle's idea of an object in a state of rest or of uniform motion in a straight line, so that the former is just a special case of the latter. he opined that bodies at rest stay at rest and bodies in motion stay in uniform motion, unless and until acted upon by some force. so motion need not be explained by the continuing force of a prime mover. he drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was a square of the time elapsed. he realized that the movement of a projectile involved a horizontal and a vertical component and guessed that the effects of falling were independent of the horizontal motion. he demonstrated that a projectile follows a path of a parabola, instead of a straight line, and that it too descends a distance which is the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. the telescope was invented in . the next year, galileo built a greatly improved telescope using a lens to look at the skies. he observed that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter has moons orbiting it. he noted that the planet venus progresses through phases similar to those of the moon orbiting the earth and that it was very large with a crescent shape or very small with a round shape. this apparent change in size could only be explained if venus revolved around the sun, rather than around the earth. thus more credence was given to the copernican theory that the earth and all planets revolve around the sun, so galileo was denounced by the church. he argued against a literal interpretation of the bible. his observation that certain sun spots were on certain locations of the sun but changed over time suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. he had demonstrated that there was such a thing as a vacuum, which was above the level of the water. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose partway up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to prison as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers such as the square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers would be equivalent to addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth from the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. in , renee descartes, a philosopher, mathematician, and scientist from france, invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. an algebraic equation with two unknowns, or variables, could be represented as a shape on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . all conic sections, e.g. ellipses, parabolas, and hyperbolas, could be represented by equations. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes pioneered the standard exponential notation for cubes and higher powers of numbers. he formulated the sine-law of refraction, which determines in general the way a light ray is deflected, according to the density of the media through which it passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be rectilinear. these ideas did not correlate with the biblical notion of the creation of the universe by god in seven days, so descartes feared persecution by the church. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he expressed that it was error to believe that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on terrestrial magnetism which founded the science of electricity. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to loadstones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a loadstone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained some time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in . flax-working machines came into existence. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review important. james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.] in addition to the two knights from every county (elected by men holding at least forty-shilling freeholds), four representatives from london, and one or two from every other borough (generally elected by the top business families), there was a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. it became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. - the law - churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each houses. every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged a common rogue or vagabond subject to imprisonment and punishment. sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. persons stealing crops from lands or fruit from trees shall be whipped. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. every person shall receive the holy communion in church at least once a year or forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or forfeit s. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. spawning and growing fish in harbors may not be taken by any nets or weirs because this practice has hurt fishermen and the realm. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. actors profaning god, jesus, or the holy ghost on stage are to be penalized s. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. in it was decided that it was not necessary to prove witchcraft caused the death of a person for there to be punishment for it. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. as attorney general, coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systemized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such as estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." - judicial procedure - defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. james i asserted an authority to determine the jurisdiction between the various courts. the court of high commission heard mostly matrimonial cases, but also moral offences both of clergy and laity, and simony, plurality, drunkenness, and other clerical irregularities. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and are primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, tenant by elegit statute merchant and staple of lands or tenements. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of good-a-bearing and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. by , chancery could order injunctions to stop activities. in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". a statute of gave rights for adverse possession. it provided that all writs of formedon [right to land by gift of a tail] in descender, formedon in remainder, and formedon in reverter for any manors, lands, tenements, or hereditaments shall be sued within twenty years, for the quieting of men's estates and avoiding of suits. in default thereof they shall be excluded from such entry except children under years, women-covert, non compos mentis, imprisoned or overseas shall have an additional years after their disability ceases if the years have expired. the limitation for bringing actions on the case (except slander), account, trespass, replevin, debt, detinue for goods and chattels and the action of trespass, quare clausum fregit [damages for unlawful entry on land], is within years; for trespass of assault, battery, wounding, imprisonment is within years; and for actions upon the case for words is within years. the trial of sir walter ralegh in began a call for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disembowelling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarrige. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in . - - - chapter - - - - the times: - - the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front were full and made of satin and stiff silk or velvet. only hose of silk was worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. nine-tenths of the people were protestant. religion was a favorite and serious topic of discussion, even among the illiterate. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and distillatories with beauties, banquets, perfumes, and waters. it taught preserving and comfit making, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" by w.b. and e.p. primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography, mathematics, including arithmetic and geometry, poetry (reading, writing, and criticizing), music, including part-music, drawing, limning, painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation if related to one's intended profession such as the law, philosophy (plato and aristotle), and some medicine and botany. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. richard brathwaite's "the english gentleman" portrays the sombre puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of travelling around the country. the king let the public into hyde park for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. the water carrier was still active and the night transport of sewage necessary. in certain areas there lived in crowded houses, those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into them because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. indigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town-planning in london with covent garden fruit and vegetable market with terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in to make canals that would make waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only on a river. a single horse could haul a wagon on iron rails with tons, on a soft road with tons, and on his back / of a ton. real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be victualled for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all the parishes, the richer of these to help the poorer. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. the poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. he wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned, those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus [produce the body] to get released, but to no avail. the old writ had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta got attention as a protector of basic liberties. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected by the people. for these reasons, the house of commons asserted a preeminence to the house of lords. the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, he extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain. one man used his pitchfork to take back his steer being taken by the bailiff. if distraint were successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, conceits, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in prescribed forms and ritual with pomp and ceremony, including kneeling for communion. it was to be done in accordance with the romish breviars, rituals, and mass-books. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction. regard was to be had with regard to days, postures, meats, and vestments. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four- cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be put upon a parish by the bishops without the consent of the patron or people. by increasing the meager pay of a parish clergyman, they could chose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after king james ii's queen, who was overtly catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation, law and the liberties of the subject, religion, land and trade, and authority and property. twenty-two pamphlets were published in and , in . in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, or human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, which was done to even those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in , they purged its faculty of royalists. - the law - from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or forfeit s. no butcher may kill or sell any victual on sunday or forfeit s. d. every innkeeper, alehousekeeper, and other victualler permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. as of , a parent sending a child out of the country to go to a catholic school were to forfeit pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in . - judicial procedure - the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined eight thousand pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined four thousand pounds. the lord was fined ten thousand pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined two thousand pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to the parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who from the pulpit inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in , in distributing a deceased person's estate, the chancery court upheld a trust for an heiress which would not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offence, and husband murderers still burned. - - - chapter - - - - the times: - - for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match and dressed in leather doublets and an iron-pot headpiece, or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and switzerland's john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in to the inventors of a device for salvaging ships' goods and cannons from the seas for seven years. with it they could convert to their own use one half and items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal, for fourteen years. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. his creation of a vacuum, above the mercury in the tube, astonished philosophers, who had thought that nature abhored a vacuum and would prevent it. blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in to assist his father, who was involved in local administration, in tax computations. around , he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands and goods and money and rents and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see it they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons" father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that the is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing, fishing, fowling, selling wares, travel without reasonable cause; brothel-house keeper, one who solicits the chastity of another; one who consents to the marriage of his child to a papist or marries a papist; own who goes for advice to a witch, wizard, fortune-teller; assault his parents, or any magistrate, minister, or elder in the execution of his office; one attainted of barratry, forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. in a corporation was established to teach the gospel of jesus christ in new england to indians. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of this rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but company trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading county or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the s, huygens invented the pendulum clock, which increased the accuracy of time-keeping tenfold. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones as curves of the second algebraic degree. he worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . , blaise pascal, a french mathematician, physicist, and religious philosopher, constructed a calculator in to assist his father, who was involved in local administration, in tax computations. around , he proved his law that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities, including the creation of "pascal's triangle" of coefficients of (a=b) raised to the nth power. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory. fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation.. this work helped lay the foundation for analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. there was continual problem with catholics. where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, mayor, justices and capital burgesses of such towns were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow, remove their hat (as was the custom when before the king or an earl), or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. the denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers developed a value of making provision for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to new england. in there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments (consisting of one house), and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews (who had secretly migrated to england to avoid persecution on the continent), but not prelatists (those favoring government of the church by bishops). in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, and prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in , the officers of a new parliament modified the constitution and cromwell approved it, to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists, prelatists, socinians (who denied the divinity of jesus), for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. - the law - after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualling houses in a moderate way, and milk sold before a.m. or after p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in adultery was declared to be a felony, except if the husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d.there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful or that parliament is not the supreme authority or the nation, or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or forfeit pounds. no deer may be killed or forfeit pounds, half to the informer and half to the poor. interest may not exceed pounds for a loan of pounds yearly as of . no goods are to be imported from america, asia, or africa except in english ships or forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or forfeit pounds. as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. drunkenness was much punished. husbands were responsible for their wives' oaths and fathers for their daughters'. - judicial procedure - the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in . in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualling, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. - - - chapter - - - - times: - - the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before (about / instead of about / ). there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected, but later those who were not baptists were returned by statute of parliament. (baptists did not believe in an established church.) charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber [saloon] for dining, with sets of lodgings [suites], usually for couples, around it. each lodging had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a trunkle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the closet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as doing laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servant's room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer [paid for a certain number of hours per week or month}. the gentleman of the chamber [privy purse] kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people took wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague. in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlements that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of indigo jones who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies and leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained. that was the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money-lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain animals itself. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in in essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about , the royal society for science was founded by charles ii, who became its patron. it was formed from a discussion group of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed all over the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, and sundials. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of wallis, he formulated the binomial theorem that expands (a+b) raised to the nth power, where n is an integer, fraction, or negative number. when n was a negative number, the expansion never terminated; instead of a finite sum, there is an infinite series. he then developed the notion of a number being the limit of an infinite converging series of partial sums, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, taking the integral and then the differential of a function results in a return to that function. newton discovered that colors arose from the separation rather than a modification of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound. newton opined that an object moves because of external forces on it rather than by forces internal to the object. he connected the concepts of force and acceleration with a new concept: mass. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass time acceleration. another law was his principle of inertia that any body, in so far as it is able, continues its state either of rest or in uniform, rectilinear motion. his next law was that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. newton had a radically novel idea that equated instantaneous acceleration to the gravity force which provoked it. he theorized that the same gravity force that pulled an apple down from a tree extended out to the moon hold it in its orbit around the earth. he connected these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot had only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls, the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. he combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. his universal theory of gravitation is based on the idea of forces between objects rather than from one object to another; e.g. the apple exerts a force toward the earth as well as receiving a force from the earth. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had first believed in the cartesian system of celestial vortices of aether than swirled the planets and comets around their orbits. the gross features of the universe led to his recognition that the attraction between two bodies decreased inversely to the square of the distance between them. then he came to accept hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centrifugal acceleration of each planet to be the inverse square of its distance from the sun. he also calculated the "centripetal" accelerations necessary to bring the planets into their orbits. his experiments had shown that he centripetal force in a circular orbit was equal to the mass of the body times the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter, its penetration to the very center of all bodies without diminution, its propagation to immense distances decreasing in exact proportion to the square of the distance. newton showed that a single gravitational force could account for the way falling objects descend to the ground, the parabolic trajectory of projectiles, the motion of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's satellites, and the ellipitical motions of the planets in their orbits around the sun. it had been thought that invisible angels moved the planets. he proved from his law of gravitation and his three laws of motion the truth of kepler's laws of ellipitical planetary motion. he demonstrated from data collected from the comet of that comets moved according to his law of gravitation. non-periodic comets were observed to follow hyperbolic paths. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of it. newton's "principia mathematica philosophia naturalis", was published in . the church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, in order to participate in the business of the university, newton was active in the opposition that defeated this attempt. when newton's laws were applied to the paths of the moons of jupiter, it was noticed that the moons were a few minutes ahead of time at that time of year when jupiter was nearest to the earth and a few minutes behind time when jupiter was farthest from the earth. olaus roemer, a danish astronomer, postulated that jupiter's eclipses of its moons lasted seconds longer the farther away jupiter was from the earth because it took their light longer to reach the earth. he concluded that light does not travel instantaneously, but at a certain speed, which he calculated in . in , christian huygens formulated the law of conservation of momentum [mass times velocity], which held that when objects collide, they may each change direction, but the sum of all their velocities will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every direction at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed and distinguished it from a mixture, which is easily separable, and a compound, which is not easily separable. he used a pump he developed and a glass jar to create a confined air space for experiments. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of gases. he proved by experiment that the volume of a gas at a constant temperature varies inversely to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the theory that everything was composed from the four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was developed. robert hooke, the son of a minister who died when he was thirteen, helped boyle build his air pump. he was a genius with innate mechanical skill. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the scintillation of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body bends or stretches out of shape is in direct proportion to the force acting on it. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. at his death, hooke had thousands of pounds stored in an iron chest. wallis wrote a treatise on algebra which was historical as well as practical. in , he postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. during this time, he also deciphered enemy messages for royalty and was made a royal chaplain. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise blow away from the equator to replace cooler air. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he compiled a table of mortality, which originated the science of life-statistics. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew what fossils were. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaption of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants", and the researches of robert morrison, who was charles' physician and keeper of his gardens. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. nicholaus steno, a danish physician, demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top, which began the science of geology. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. nehemia grew, the son of a grammar school master who later became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of sex in plants. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protezoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. the cellular basis of life was discovered. human blood vessels were examined. when the egg in the female reproductive system was discovered, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine with sweetness. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: blood- letting, purging, and sweating. blood-letting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations on a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and serving as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment for disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. women who were rich often employed wet-nurses. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was based on a contractual relationship with the people. this idea which was first adopted by revolutionists and then became accepted as orthodoxy. furthermore, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates underneath their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. john locke theorized that propositions have probability rather than certainty. his "thoughts on education" was a great book on the formation of character. locke also wrote about the large field for knowledge in labor-saving and economic inventions. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he thought that knowledge comes primarily from experience rather than from the mind, so that observation and experimentation are necessary to find truth. immanuel kant from prussia, who became a professor of logic and metaphysics, was also impressed by newton's findings and expressed his philosophy that man has perceptions in space and time and can have some descriptive knowledge of his world by using purely intellectual concepts such as possibility, existence, necessity, and substance. he thought of god as theological perfection, and morality as practical perfection. the british primarily adopted the views of their own hobbes and locke, and bacon before them. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between and were official government sheets. but in freedom of the press was established by the abolition of the licensing of publications, including newspapers. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..."in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from to , societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, disabled seamen's children were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . explosives were also used in mines. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit; running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. the science of statistics made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. charles instituted a hearth tax of s. per year in , with constables and offiers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphillus; it was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . the king may not suspend laws or dispense with them without consent of parliament. . the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . the king may not levy money or extend an authorized levy without consent of parliament. . subjects have a right to petition the king without prosecution. . the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . protestants may have arms for their defense as allowed by law. . the elections of members of parliament should be free. . the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death) . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, gunpowder, saw milling, and pottery trades. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. there were no more commercial monopolies. regulated companies declined. the merchant adventurers lost their last monopoly privileges; their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. the stock exchange was incorporated about . the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. new industries for the manufacture of silk, paper, and cutlery were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. only a quarter of towns had any organized guilds at all. growing birmingham was not a chartered borough, so never was encumbered with guild regulations. the guild and apprentice regulations were effectively enforced only in agriculture. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where it was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. smiths used trip hammers powered by water mills which turned an axle with cams on it. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which was later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen, flax, hemp, timber, iron, silk (raw, thrown, and woven), wine, brandy, fruit, coffee, chocolate, cauliflower, and oil. from america came molasses, sugar, tobacco, and dyes. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by . exports and imports increased % by . parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america to the use of any person who will pay for his transportation, for a term of years, usually seven, a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience (freedom of religion) and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in boston. increase was for a time the president of harvard college and participated in obtaining the new charter of massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deluded, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. - the law - any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were to be released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. the making or selling of fireworks is forbidden or forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors or persons murdered while trying to apprehend a robber shall have the reward. no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it or flax; making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or stoveing of cordage; or tapestry or hanging because the daily importation of such has in effect taken the work from the poor and unemployed of england. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no sheep, wool, woolfels, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offence. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is discharged from parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay or shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designated certain property as a wife's separate estate and exempted it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to the state church as it had been for them in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or forfeit pounds. by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. (this does not include members of the same household meeting in their home.) anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or forfeit s. or the goods respectively. no one may travel or forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths (or declaration in the case of quakers) and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offence or be imprisoned for months if he couldn't pay. for the second offence, the penalty was pounds or imprisonment for months with hard labor. the third offence required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. but charles' sucessor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papism and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass, or stay ten miles outside of london, excluding tradesmen and manual workers, sho must only register. all papists had to forfeit their arms and any horse worth more than pounds. also, no monarch or spouse of such could be a papist, but must make the declaration as members of parliament, and join in the communion of the established church of england. as of , a person who is serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary must take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist may buy land. - judicial procedure - as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of "habeas corpus" which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide to verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. trespass on the case has now branched into assumpsit, trover, deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding. this is an example of a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c. this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. the rigid writs with specific forms of action for common law cases start to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of . if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. the last burning of the occasional burnings of a woman as a penalty for an offense was in . the last bill of attainder, which condemned a person to death, occurred in . the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. - - - chapter - - - - times: - - dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears with hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. the hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. they both had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff-boxes, patch boxes, and perfume containers. both men and women sniffed tobacco snuff but only men smoked. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the other had to find a living such as in the church, law, medicine, or trade. they usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, shopkeepers (who now kept their wares inside and lived on the second floor), middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, and customs and excise men. the town people lived in town houses of two stories plus an attic. the last class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rain-water heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, fallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate wheaten bread instead of rye bread, much meat and cheese, and drank tea. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. real wages were higher than at any time since the mid- s. the wage earners were well above the subsistence level as long as trade was good. working men could now afford leather shoes and white bread. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer (without board or lodging). in the short harvest time, he could earn s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. they expected their oldest son to take and preserve the family estate. industrialists who had made a fortune for example in steel, cotton, coal mining, porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy such estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone would eat together in the dining room, with the servants at one end of the table. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. there were pictures on the walls which were now more covered with damask, brocade, silk, and wallpaper hung and plain paint than by wood wainscoting. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing as a favorite the walnut that was usually used instead of oak. much wood was inlaid with a variety of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. there were pictures on the walls. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fire-back was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace, curtains over the windows looped up at the cornices, one or more mahogany tables, a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails (perhaps with some sort of metal springing), two mahogany sideboards with marble tops, cupboards or shelves or cabinets with displays of china porcelain, a wine-cooler, a dumb-waiter, and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, and silver knives, spoons, and two and three pronged forks, glass salt-cellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and stairs; wardrobe; chairs; a wash hand stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and staircases were protected with carpeting. servants had no right to free time or to holidays. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. a watch-maker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the back-flow of noxious sewer gas. its pans and overhead cisterns were made in pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer-work were popular. landscaping to reproduce an idealized country scene replaced formal gardens. furniture and landscaped gardens were often done in a chinese style. foreign trees were imported. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. washing was in done wash bowls held by wooden stands wood and in a built-in bathtub. hot water usually had to carried up to it, but bathtubs with hot and cold running water were known. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs, levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. carriage by sedan-chair was common. gentlemen often had valets. in , buckingham house was bought as a palace for the royal couple. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included bread, beer, spirits, and vinegar; sugar refining; tobacco refining; snuff; spinning and weaving of woolens and worsteds, silk ribbons, tape, and cloth; printed calico, linens, clothes, laces, tassels, fancy embroidery, stays, stocking weaving, hats, shoes, leather goods (boots, shoes hats, gloves, harnesses, saddles), jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, tools, paper, printer's ink and glue, printing, publishing, swords, guns, heavy artillery, ships, sails, rope, carriages, and precious and base metalwares such as brass and pewter ware. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, orrerys [a model solar system], and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, of glue, of printers' ink, and of colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers, and the tanners, employed journeymen. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. the skilled artisan who works at home and either makes goods for a master or sells to the trade verges into the shop keeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belong to the class of unskilled and casual labor. the lowly chimney sweeper, paid d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitualling: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods, bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from am to pm, and over the years later to pm. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' business transactions, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in ; lloyd's for sale and insurance of ships in ; and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges across the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted here. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the house-keeper or steered into prostitution as soon as they entered the city. ambitious young men would seek a job as an apprentice, work hard, flatter his master, and try to marry the master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices, , pounds, to the clerical poor in . there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but came to came to target rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. another instance was destroying stocking-knitting frames so not too many apprentices could be employed contrary to the regulations of the stocking knitters guild. the use of parish workhouse children also was a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened. lights were put on it to be lit all night. and watchmen were put on it for safety and protection of passengers. (this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods.) about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging in from of stores, which had blocked the sunlight, were placed flat in front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. there were special stands for hackney coaches, which were d. d. for a day of twelve hours. their regulations were extended to sundays. wards were to chose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the bucket was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about - . the proportion of women grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status not as advantageous, but as regrettable. weddings were becoming public in church instead of private. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they got married. in a marriage statute required licenses to marry and the consent of parents or guardians in case of minors, calling of banns [advance announcement so that anyone could point out why the marriage should not take place], and need of four weeks residence in the parish where the license was given by bishop or other authority, because of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. furniture was still sparse. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pin-making, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shop keeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap (from animal fat) or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glass-making; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically am to pm. as wood charcoal was becoming expensive, coal was increasingly used for brewing and for brick, glass, and china manufacturing. mines for coal became deeper; flooding of them and of tin and copper mines became a problem. drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that the king was authorized to make regulations for prohibiting the removal or sale and for the burial of distempered cattle later, the king was authorized to prohibit the killing of cow calves. no one may sell any ox, bull, cow, calf, steer, or heifer until he has had possession of such for forty days or forfeit ten pounds, because of distemper. later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, with land cultivated in common. enclosure of land was still going on. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the old forms of crop rotation with fallow periods were often displaced by legume-rotation field-grass agriculture. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow [sheep fat]. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests may by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, may not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread [thrown silk] in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. it doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in , the plant was bought by carpenter and weaver james hargreaves. his work with it resulted in his invention of the very successful spinning jenny, which was patented about . he conceived the idea by watching a spinning wheel that had been knocked over lying on its side and still revolving for a few seconds, while the thread, held between two fingers, seemed to go on spinning itself. the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. richard arkwright, came from a poor family and was taught to read by an uncle. he became a barber and made wigs. although he was not a craftsman of any sort, he patented in a spinning frame worked by water power and erected the first practical cotton mill factory. it produced a much stronger thread than could have been made with a spinning wheel. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. but there was a statute of , that no one may wear or use printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, furniture, except those dyed all in blue, or forfeit pounds by a seller, pounds by a wearer, and pounds by other users. this prohibition was to provide wool working jobs to the poor, who had been increasing excessively because of lack of work. a clarification was made in that the statute did not include printed or painted cloth made of an all linen warp (for strength) and a cotton weft (for fineness) manufactured in great britain because such was a branch of the ancient fustian manufacture. there was also a statute of , that any one who willfully and maliciously assaults a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carries this out is guilty of felony and may be transported for seven years. this was the way the wool weavers had expressed their opposition to imported printed cottons and calicoes. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. this was the first all cotton cloth made in england. in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely imitated. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth were challenging the use of wood and horn cards with thistles in carding wool. merchants who traveled all over the world and saw new selling opportunities and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as house-breaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work illegal and void, because this has encouraged idleness and increased the number of poor. tailors' wages are not to exceed s. per day and their hours of work are to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more shall forfeit pounds. a journeyman receiving more shall be sent to the house of correction for months. justices of the peace may still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work; their masters called them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. court mourning. their work hours were lowered to from a.m to p.m. in . the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work shall forfeit s. in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london are to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver may have more than two apprentices or forfeit pounds. journeymen weavers entering into combinations shall forfeit s. this statute satisfied the weavers, but they formed a union to ensure that it was carried out. in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use in new industries, at easily learned plain work. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by burning; looting of grain mills, shops, and markets; and mob violence. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman may not have the place of birth as his settlement, but takes the same settlement as his mother. some farmers hired laborers for only fifty one weeks and some apprentices were bound by means other than indenture so that they could not establish settlement in that parish. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which would be used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualling houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or forfeit pounds. about only innkeepers, victuallers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. about only innkeepers, victuallers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation. in , additional duties were placed on spiritual liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats; englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they now taught arithmetic as well as reading and writing. translation and reading of latin is still important, e.g. aesop's fables, cicero's letters, caesar's commentaries, ovid, livy, virgil, horace, pliny, juvenal, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bulling of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german ( ) and "institutes of the laws of england" by thomas wood ( ). most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall shall have the sole liberty of printing and reprinting such book for years. others who print or sell or publish such shall forfeit the books and pay one penny for each sheet found in their custody, / to the queen and / to the suer. the printer shall give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong, at small distances performed chemical interactions, and at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was more accurate than the alcohol and water thermometer. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in the french chemist etienne geoffroy published a table of affinities among chemical substances. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. in , rev. stephen hales discovered the ways that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. he made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. in , george hadley, a london lawyer and philosopher, determined that the cause of the trade winds blowing from the west direction was the rotation of the earth. benjamin franklin in observed that a particularly violent storm was in boston a day after a particularly violent was in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is it is conserved. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature. in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalis before and after exposure to heat. they lost weight by losing carbon dioxide. he then ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in , joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he got interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomenon such as seeing brandy ignited by a spark shooting from a man's finger and transferring an electrical impulse among a circle of people by their holding hands. electricity was stored in an early type of capacitor. benjamin franklin "caught" lightning with a sharp pointed wire attached on top of a kite which led down to a key. when a thunder cloud electrified the kite, a charge could be seen coming from the key to an approaching finger. this charge was stored and then reproduced to create the same feeling of electrical transference among hand-holders as a rubbed glass globe, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. he invented the lightening rod, which was then used to protect houses. about ten years later, the first lightening rod on an english church was erected. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at onetime with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those previously imported. in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby, whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this decreased the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the oscillating beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. around , clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally invented cast steel, which was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equalled. steel and wrought iron was scarce and expensive. around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. silver was plated over copper from . white metal from tin and antimony was used from about . the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in . the fanmakers were incorporated in . a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade may be increased. in the s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. and people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. sarah wallen mapp was a famous bone-setter. nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease, e.g. attacks on upper part of chest on left side and difficulty breathing and numbness of left arm all ceasing with exertion with dilation of aorta and hardening of arteries, causing delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. his book of described methods and instruments. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private lunatic asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one may keep or confine more than one lunatic without a license granted by the royal college of physicians or forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in was the last time a monarch touched a person to cure him of a malady such as scrofula. in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about , john wesley became the leader of the methodist religious movement for the mining and industrial laborers. he lead an aesthetic life, eating bread and sleeping on boards. the movement was called methodist because of its methodical regularity of living. it was characterized by an evangelical revival and a promise of individual salvation. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. wesley believed in witchcraft and in magic. he opined that bodily diseases and insanity could be caused by devils and some dreams are caused by occult powers of evil. with the methodist movement, there was a concomitant growth of philanthropic activities by the methodists. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could and also could wear whatever clothes they had. though large crowds of poor people were feared because of their mob potential, their meetings were stormed as has been quaker meetings, with the shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. calvinism went into full decline. presbyterianism collapsed into unitarianism and there was a general tendency towards deism. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. at coach headquarters in inns in london, there were casual workers who associated with gangs of thieves specialized in passengers' goods. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls are to be paid shall go to prison or put to hard labor in a house of correction for three months without bail. he shall also be whipped in the market place between : and : . if he offends a second time, he shall be transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred was to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there must be a pole between the wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals or with wheels bound iron tires, or with very heavy loads were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide; hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction is made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior causes any hurt or damage to a person or any other carriage or hinders free passage of any other carriage shall forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway shall forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it shall forfeit up to s. any driver of an empty cart, wagon, or carriage who refuses or neglects to make way for any coach or loaded cart, wagon, or carriage shall forfeit up to . any offender may be apprehended by anyone seeing his offense without warrant, who shall then deliver him to a constable or other peace officer. by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. in , canals began to be constructed linking the main rivers. horses or men hauled the barges from the land. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built a great factory. in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. promissory notes are assignable and endorsable and the holder may recover against the signer or any endorser as is the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable may be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to comply with them otherwise than by being subject to great extortion and abuse. (cash was to be used instead.) by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of hugh profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from sea-water. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as house-breaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were speciality boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum (strong beer made from malted wheat), cider, perry, spices, coffee, tea, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire (except licensed hackney coaches); silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. (at other times, they could not be imported.) duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d. - s. d. per ream depending on quality) or imported ( s. - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty for sellers or hawkers of pamphlets or newspapers of imprisonment in a house of correction up to three months, and the apprehender got a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa nuts with an intent to avoid duties upon oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. the foot soldiers were to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property would be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood may be searched for and conscripted into the army. volunteers who enlist shall be paid s. and may not be taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualling houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the army and also to keep a check on its numbers, which might be surreptitiously increased if they were in barracks. the towns protested and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as it was for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into royal sea service until years of age. master and owners of ships that carry - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or forfeit pounds to the parish. boys voluntarily binding themselves to such sea service were exempt from impress for the next three years. this was to increase the number of able and experience mariners and seamen for the royal navy and for the trade and commerce of the nation. no masters or commanders of merchant ships may proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement must be signed by the seamen. offenders must forfeit pounds per seaman, which will go the use of greenwich hospital. any seaman leaving the ship before being discharged in writing will forfeit one month's pay because too many have left the ship before it was unladen. there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of the helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using an octant and later a sextant with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. there was a toll on ships entering the port of london to pay for repairs to its walls. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s and now out of date. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that it be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was to be paid. privateers taking merchant ships by collusion were to forfeit their ships, with / rd going to the person who makes the discovery and prosecutes. later, any able seaman volunteering for the navy is to receive pounds bounty. any seaman volunteering for the navy shall receive a bounty of pounds. if a navy seaman is killed or drowned, his widow is to receive a year's pay as bounty. no seaman in a merchant ship is to receive more than s. per month because of the present war. still later, anyone who has run goods or avoided customs was indemnified if he enlisted in the navy as a common sailor for three years. those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich are to receive a pension as determined by the hospital. in war, the navy used blockading tactics and attack by fireships grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast and trade and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. no war ship may carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defacing the marks on goods or hindering the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot is readily available, a ship's own owner, master, or mate may pilot ships up the thames river, or forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship may no longer be a pilot. there must be at least qualified pilots. the prices of piloting are pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. to preserve navigation, ships may not throw any ballast, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flows or runs or forfeit s.- pounds. ships on the thames river may take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry (money to be repaid upon return of ship). each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who casts away, burns, or otherwise destroys to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship shall suffer death. the owners of ships are not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this is to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights to the insurer. a lender on bottomry shall have benefit of salvage. no insurance may be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river may take an apprentice unless he is a housekeeper or has some known place of abode where he may keep such apprentice or forfeit ten pounds, and if he can't pay, do hard labor at the house of correction for - days. also he may not keep the apprentice bound to him. no apprentice may be entrusted with a vessel until he is if a waterman's son and if is he the son of a landman, and he has had at least two years' experience. none but freemen (i.e. one having served an apprenticeship of seven years) may row or work any vessel for hire or be subject to the same punishment. this is to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. no boat on the thames river may be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such has led to theft of ropes, cables, goods, and stores from the ships. excepted are boats registered at the guilds of trinity and of st. clement, but they must show their owner's name and can only operate in daylight hours. the penalty is forfeiture of the boat. all ships coming from places infected with the plague shall be quarantined and any person leaving a quarantined ship shall return and later forfeit pounds, of which / may go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and to forfeit pounds. if he did not take his vessel to the quarantine area on notice, he was to forfeit a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. (wolsey had been the last chancellor to rule england; thereafter the chancellor had become more of a judge and less of a statesman.) other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england to be able to take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of , persons electing a member of the commons must swear or affirm that he has not received any money, office, employment, or reward or promise of such for his vote. if he swears falsely, it is perjury and he must forfeit pounds and may never vote again. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters still were required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded or forfeit pounds. in , since unauthorized persons have intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer shall appoint clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath is that one is a freeman of london, a liveryman of a certain named company, has been so for months, and names his place of abode. the oath for alderman or common council elections is that the voter is a freeman of london and a householder in a named ward paying scot of at least a total of s. and bearing lot. a list of the voters and of persons disallowed is to be given to candidates by the presiding officer. soldiers may not be quartered within miles of a place of election so that the election is kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his book: "political disquisitions". in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there may be corruption of the blood or for misprison of such treason may make his defense by up to two counsel learned in the law, who shall be assigned for that purpose on the application of the person impeached. in , counsel may interrogate witnesses in such cases where testimony of witnesses are not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as a soldier or as an engineer, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense. it was thought to be a fair tax because it fell on colonies in proportion to their wealth. the items taxed were to carry a stamp showing that the duty on them had been paid. the duty on every skin, piece of vellum or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the colonists saw this as a departure from past duties because it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking token customs for the sake of appearance on london and thereby had become rich. in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies because the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one may enter or exit the port of boston or forfeit goods, arms, stores, and boats carrying goods to ships. every involved wharf keeper shall forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby must depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute is passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an indifferent trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the crown to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships may be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings passing dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. (every township of fifty households had to appoint one to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and therefore no goods or wares may be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there was also restriction of their vessels fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , because all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of , anyone harboring of army or marine deserters in the colonies must forfeit pounds, and persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america shall forfeit pounds because such men have been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted on july , . - the law - trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors may be discharged from prison if they owe no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than ( in ) pounds worth of property (including s. in money in ), because there are so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions and are totally disabled from paying their creditors and they and their families either starve or are a burden to their parishes and become an occasion of pestilence and other contagious diseases. excepted are those objected to by a creditor who pays for the maintenance of the debtor in prison. prisoners discharged are also discharged from chamber rent and gaolers' fees, but not from their debts to creditors. except that no male prisoner may be discharged during war unless he enlists in the royal army or navy until the end of the war. in , the discoverer of any asset not listed by a debtor was to receive pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds and double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors (excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds) if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents (but not sell timber) until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate after the death of any person who has cause to believe that that person is dead and the death is being concealed by the person's guardian, trustee, husband, or other person may yearly request an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of , all devices, legacies, and bequests made by will in great britain or the colonies is void if not in writing and witnessed by three witnesses. no witness may receive under the will. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment were to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualler, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pleasant, partridge, moor game, heath game, or grouse in the night shall go to gaol or the house of correction for - months without bail and whipped for the first offense and for - months without bail and whipped for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept without the consent of the owner must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable (by night or by day, whether the owner is present or not, whether there is a break in or not) may not have benefit of clergy. anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of , any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, fire-arms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pone, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisadoe, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or forfeit pounds. excluded were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in , makers, aiders, or possessors of any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony for which one shall suffer death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, may be transported for years. apples and pears may not be sold by any measure other than a standard water measure, or forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or forfeit s. any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or forfeit s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in , wool making employees not returning all working tools and implements and wool and all materials with which entrusted back to their employer or who fraudulently steams, damps, or waters such wool or who takes off any mark on any piece of cloth shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the person may be brought to account before a justice of the peace, and if the account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or forfeit - s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. owners of timber trees, fruit trees, and others used for shelter, ornament, or profit which are cut down or otherwise destroyed shall be made good by his parish or town, as are hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying was to be gaoled. aiders and buyers who knew the item was stolen incurred the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. the previous statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. persons using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. persons pretending witchcraft, sorcery, enchantment, or conjuration; or telling fortunes; or pretending by occult knowledge to discover the location of stolen goods may be imprisoned for one year without bail and put in the pillory in the market place once in every quarter of such year. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless he discloses his accomplices within two months. the importer shall forfeit treble the value of such goods. armed person to the number of three assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as a commons sailor in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clock-makers, watch- makers to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than negligence, as had been occurring. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. in was the last execution for witchcraft. by statute of , witchcraft, sorcery, enchantment, and conjuration were abolished as crimes. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or forfeit pounds. later, pine trees on private property were excluded. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or forfeit pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . - judicial procedure - for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some indifferent person pulling their names from a box. later, persons refusing jury service could be fined. poor persons may be paid up to d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery. the interrogatories were addressed by court officials to witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms. so there was no cross- examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issue orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. he examined suspicious persons and issued warrants for the removal of persons likely to become a public charge. the justice of the peace also regulates wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes for failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of the individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allows administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. in , persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygenic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. there was much gaol distemper fever with fatal consequences, so in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. in john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publically to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. benefit of clergy was available in the american colonies to all who could read and write. it could be used in trials for manslaughter. - - - chapter : epilogue - - - in the time period after , there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in , james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in , iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in ), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in , edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from with passengers), subways, trains ( ), public railway ( , goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in , children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after ), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- pronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in , lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in , married women's property acts beginning : ( . right to sue and be sued, . right to her own earnings, . right to own real and personal property, . right to make contracts . right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in , in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the s; in england allowance of women attorneys in , women to vote in , adultery by a husband to be adjudged as culpable as adultery by a wife in , the rights of a mother over her child to be equal to those of a father in , and the rights of a woman to property to be the same as those of a man in ; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in , probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in , of compurgation in , and of benefit of clergy. in , there were offences in england with the death penalty, including stealing from a dwelling house to the value of s., stealing from a shop to a value of s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of , church courts could no longer decide cases of perjury; as of , no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the s. in , jurors were to have no knowledge except the evidence accepted at court. in , counsel for a person indicted for high treason could examine and cross- examine witnesses. in , a defendant could see the written record of evidence against him. in , the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husband- wife. - - - appendix: sovereigns of england - - - accession - name - alfred the great edward the elder son of alfred aethelstan son of edward the elder edmund son of edward the elder eadred son of edward the elder eadwig son of edmund edgar son of edmund edward the martyr son of edgar aethelred the unready son of edgar edmund ironside son of aethelred the unready canute harold i harefoot son of canute hardicanute son of canute edward the confessor son of aethelred the unready harold ii william i, the conquerer william ii son of william i henry i (and matilda) son of william i stephen henry ii (and eleanor) grandson of henry i richard i, the lion-hearted son of henry ii john son of henry ii henry iii son of john edward i (and eleanor) son of henry iii edward ii son of edward i edward iii son of edward ii richard ii grandson of edward iii henry iv henry v son of henry iv henry vi son of henry v edward iv edward v son of edward iv richard iii henry vii (and elizabeth) henry viii son of henry vii edward vi son of henry viii mary daughter of henry viii elizabeth i daughter of henry viii james i charles i son of james i oliver cromwell charles ii son of charles i james ii son of charles i william and mary william iii anne granddaughter of james ii george i george ii son of george i george iii son of george ii - - - bibliography - - - . ancient laws and 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the lord chancellors, campbell, . gilds and companies of london, george unwin, . a history of technology, charles singer, - . edward i, michael prestwich, . franchises of the city of london, george norton, . the works of alfred . salisbury plain, r. whitlock, . william the conqueror, f.m. stenton, . life of william the conqueror, t. roscoe, . elizabeth i, anne somerset, . queen elizabeth, katherine anthony, . industry in england, h.deb. gibbons, . henry ii, w. l. warren, . edward i, l.f. salzman, . the yorkist age, paul kendall, . edward the confessor, frank barlow, . the livery companies of the city of london, w. carew hazlitt, . parliamentary representation of the city of coventry, thomas whitley, . the government of england under henry i, judith green, . lives of the queens of england, agnes strickland, . the oldest version of the customs of newcastle, c. johnson, . charter of henry ii to the burgesses of newcastle, a. m. oliver, . the charters and letters patent granted by the kings and queens of england to bristol, samuel seyer, . magna carta, legend and legacy, william swindler, . chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii . sons of the conqueror, g. slocombe, . the spirit of the classical canon law, richard helmholz, . open fields, charles orwin, . the medieval foundation of england, arthur bryant, . from alfred to henry iii, - , christopher brooks, . the anglo-norman nobility in the reign of henry i: the second generation, charlotte newman, . the birth of britain vol. , winston s. churchill, . medieval london, gordon hoime, . a history of london, stephen inwood, . tudor england, john guy, . reign of henry vii, r. storey, . elizabethan life in town and country, m. st. claire byrne, . the elizabethan world, edited by norman kotner, . the evolution of modern medicine, william osler, . shakespeare's england, oxford university press, . the lion and the throne, catherine bowen, . johnson's england, ed. a.s. turberville, . education in renaissance england, kenneth charlton, . the scholastic curriculum of early seventeenth-century cambridge, william costello, . . english people on the eve of colonization - , wallace notestein, . sir walter ralegh, willard wallace, . sir walter ralegh, robert lacey, . constitutional documents of the reign of james i, j.r. tanner, . history of the english people, volumes iii and iv, green . hume's history of england, volumes v and vi, david hume . english society - , keith wrightson, . the century of revolution - , christopher hill, . charles i and the puritan upheaval, allen french, . charles i, christopher hibbert, . constitutional documents of the puritan revolution - , samuel gardiner, . life and work of the people of england in the th century, dorothy hartley et al, . home life under the stuarts, elizabeth godfrey, . cromwell the lord protector, antonia fraser, . the greatness of oliver cromwell, maurice ashley, . acts and ordinances of the interregnum - , c.h.firth & r.s.rait, . history of the english people, john r. green, . . a social and industrial history of england, f.w. tickner, . a history of everyday things in england, marjorie and chb quennell, . the english, norman f. cantor, . a concise economic history of britain, john clapham, . world book encyclopedia . encyclopedia britannica . history of the english constitution, rudolph gneist, . the life of the law, alfred knight, . norton anthology of english literature, ed. m.h.abrams, . the bank of england, john clapham, . the honorable company, a history of the east india company, john keay, . a history of british india, w.w. hunter, . the bank of england, john clapham, . early speculative bubbles and increase in the supply of money, m.a. thesis, douglas e. french, . royal charles, antonia fraser, . charles ii, ronald hutton, . the life and times of charles ii, christopher falkus, . life in a noble household - , gladys thomson, . the weaker vessel, antonia fraser, . a constitutional and legal history of medieval england, bryce lyon, . the laws respecting women, j. johnson, . mediaeval england, mary bateson, . elizabeth: the struggle for the throne, david starkey, . a social history of england, asa briggs, . the year , robert lacey, . a history of chemistry, charles-albert reichen, . john locke, economist and social scientist, karen vaughn, . becoming visible, women in european history, ed. bridenthal & koonz, . wonder book of the world's progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w. maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, . a history of the circle, ernest zebrowski, . pelican history of england: . roman britain, i.a. richmond, . the beginnings of english society, dorothy whitelock, . english society in the early middle ages, doris stenton, . england in the late middle ages, a.r. myers, . tudor england, s.t. bindoff, . england in the seventeenth century, maurice ashley, the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; 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world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petit serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; self- defense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; wind mills; window tax; wine; witch; witchcraft; wite; witen; witenagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen the statute of anne contents . preparer's notes . a modern formatted statute of anne . a transcription from the original statute of anne statute of anne: preparer's notes created from various public domain versions. repetition of last words on pages eliminated, latin intro and extro translated into english. end of line hyphenations removed for searching. typo of "peny" for "penny" has been corrected, with the elimination of the accompanying sic. also "seasonable" replaced by "reasonable" with the removal of that sic, as well. "queens" is replaced with "queen's", and "majesties" would become "majesty's", "entred" becomes "entered" and these typos were often in multiple places. "vice-chancellors" and "vice chancellors" both appeared so i chose "vice chancellors" just to make searches more simple. i have not changed any of the apparently quite random capitalizations [random in comparisons, i should say to german, etc.], nor changed any of the more different spellings, as inhaunced. i would like to comment just how obvious it is that the rights of the authors was an "add on" to this document, taking place only on a sixth sheet containing only two small paragraphs, as this makes it even more obvious just how every right was originally for "the stationers," who are now descended as by the world intellectual property organization through various means. this law was proposed and defeated years-- from its first draft by the stationers just as the gutenberg press got going to this period. all monarchs, and oliver cromwell, refused it, on grounds it gave too much to the stationers, and left too little to the public, as per: henry vi sep mar edward iv mar apr [henry vi - restored oct to c. apr ] edward v apr jun richard iii jun aug henry vii aug apr henry viii apr jan edward vi jan jul mary jul jul philip & mary jul nov elizabeth i nov mar james i mar mar charles i mar jan commonwealth jan may charles ii [ jan ] feb james ii feb dec william & mary feb mar [mary died dec ] william iii dec mar anne mar aug please note that this year span included reigns from the son of henry v of shakespearian fame and a greater shakespearian epic of richard iii, to those six wives of henry viii, mary queen of scots, and a host of the most turbulent reigns of uk history and in all this time not one of these rulers would give the stationers such great power that has now passed down, not only unchecked, but greatly enhanced over the next years. the average copyright moved to about years in length in that time from year average original terms [nearly none were renewed]. my own words are mine alone, though i appreciate it when people offer corrections, advice, etc., though i don't always take it. however, i do always offer to publish their own version along with mine. michael s. hart founder project gutenberg, inventor of ebooks a modern formatted statute of anne the statute of anne page in the eighth year of the reign of queen anne. an act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned. whereas printers, booksellers, and other persons, have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published books, and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books; may it please your majesty, that it may be enacted, and be it enacted by the queens most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that from and after the tenth day of april, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller or booksellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of april, and no longer; and that the author of any book or books already composed and not printed and published, or that shall hereafter be composed, and his assignee, or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of fourteen page years, to commence from the day of the first publishing the same, and no longer; and that if any other bookseller, printer, or other person whatsoever, from and after the tenth day of april, one thousand seven hundred and ten, within the times granted and limited by this act, as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported any such book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed or reprinted, without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books, without such consent first had and obtained, as aforesaid, then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste-paper of them: and further, that every such offender or offenders, shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this act, the one moiety thereof to the queen's most excellent majesty, her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her majesty's courts of record at westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege, or protection, or more than one imparlance, shall be allowed. and whereas many persons may through ignorance offend against this act, unless some provision be made whereby the property in every such book, as is intended by this act to be secured to the proprietor or proprietors thereof, may be ascertained, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known; be it therefore further enacted by the authority aforesaid, that nothing in this act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein mentioned, for or by reason of the printing or reprinting of any book or books without such consent, as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such publication be entered, in the register-book of the company of stationers, in such manner as hath been usual, which register-book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entered, as aforesaid, for every of which several entries, six pence shall be paid, and no more; which said register-book may, at all reasonable and convenient times, be resorted to, and inspected by any bookseller, printer, or other person, for the purposes before mentioned, without page any fee or reward; and the clerk of the said company of stationers, shall, when and as often as thereunto required, give a certificate under his hand of such entry or entries, and for every such certificate, may take a fee not exceeding six pence. provided nevertheless, that if the clerk of the said company of stationers, for the time being shall refuse or neglect to register, or make such entry or entries, or to give such certificate, being thereunto required by the author or proprietor of such copy or copies, in the presence of two or more credible witnesses, that then such person and persons so refusing, notice being first duly given of such refusal, by an advertisement in the gazette, shall have the like benefit, as if such entry or entries, certificate or certificates had been duly made and given; and that the clerks so refusing, shall, for any such offence, forfeit to the proprietor of such copy or copies the sum of twenty pounds, to be recovered in any of her majesty's courts of record at westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege or protection, or more than one imparlance shall be allowed. provided nevertheless, and it is hereby further enacted by the authority aforesaid, that if any bookseller or booksellers, printer or printers, shall, after the said five and twentieth day of march, one thousand seven hundred and ten, set a price upon, or sell or expose to sale, any book or books at such a price or rate as shall be conceived by any person or persons to be high and unreasonable; it shall and may be lawful for any person or persons to make complaint thereof to the lord archbishop of canterbury for the time being; the lord chancellor, or lord keeper of the great seal of great britain for the time being; the lord bishop of london for the time being; the lord chief justice of the court of queen's bench, the lord chief justice of the court of common pleas, the lord chief baron of the court of exchequer, for the time being; the vice chancellors of the two universities for the time being, in that part of great britain called england; the lord president of the sessions for the time being; the lord justice general for the time being; the lord chief baron of the exchequer for the time being; the rector of the college of edinburgh for the time being, in that part of great britain called scotland; who, or any one of them, shall and have hereby full power and authority from time to time, to send for, summon, or call before him or them such bookseller or booksellers, printer or printers, and to examine and enquire of the reason of the dearness and inhauncement of the price or value of such book or books by him or them so sold or exposed to sale; and if upon such enquiry and examination it shall be found, that the price of such book or books is inhaunced, or page any wise too high or unreasonable, then and in such case, the said archbishop of canterbury, lord chancellor or lord keeper, bishop of london, two chief justices, chief baron, vice chancellors of the universities, in that part of great britain called england, and the said lord president of the sessions, lord justice general, lord chief baron, and rector of the college of edinburgh, in that part of great britain called scotland, or any one or more of them, so enquiring and examining, have hereby full power and authority to reform and redress the same, and to limit and settle the price of every such printed book and books, from time to time, according to the best of their judgements, and as to them shall seem just and reasonable; and in case of alteration of the rate or price from what was set or demanded by such bookseller or booksellers, printer or printers, to award and order such bookseller and booksellers, printer and printers, to pay all the costs and charges that the person or persons so complaining shall be put unto, by reason of such complaint, and of the causing such rate or price to be so limited and settled; all which shall be done by the said archbishop of canterbury, lord chancellor, or lord keeper, bishop of london, two chief justices, chief baron, vice-chancellors of the two universities, in that part of great britain called england, and the said lord president of the sessions, lord justice general, lord chief baron, and rector of the college of edinburgh, in that part of great britain called scotland, or any one of them, by writing under their hands and seals, and thereof publick notice shall be forthwith given by the said bookseller or booksellers, printer or printers, by an advertisement in the gazette; and if any bookseller or booksellers, printer or printers, shall, after such settlement made of the said rate and price, sell, or expose to sale any book or books, at a higher or greater price than what shall have been so limited and settled, as aforesaid, then and in every such case such bookseller and booksellers, printer and printers, shall forfeit the sum of five pounds for every such book so by him, her, or them sold or exposed to sale; one moiety thereof to the queen's most excellent majesty, her heirs and successors, and the other moiety to any person or persons that shall sue for the same, to be recovered, with costs of suit, in any of her majesty's courts of record at westminster, by action of debt, bill, plaint or information, in which no wager of law, essoign, privilege or protection, or more than one imparlance, shall be allowed. provided always, and it is hereby enacted, that nine copies of each book or books, upon the best paper, that from and after the said tenth day of april, one thousand seven hundred and ten, shall be printed and published, as aforesaid, or reprinted and published with additions, shall, by the printer and printers thereof, be delivered to the warehouse-keeper of the page said company of stationers for the time being, at the hall of the said company, before such publication made, for the use of the royal library, the libraries of the universities of oxford and cambridge, the libraries of the four universities in scotland, the library of sion college in london, and the library commonly called the library belonging to the faculty of advocates at edinburgh respectively; which said warehouse-keeper, is hereby required, within ten days after demand by the keepers of the respective libraries, or any person or persons by them or any of them authorised to demand the said copy, to deliver the same, for the use of the aforesaid libraries; and if any proprietor, bookseller or printer, or the said warehouse-keeper of the said company of stationers, shall not observe the direction of this act therein, that then he and they, so making default in not delivering the said printed copies, as aforesaid, shall forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered, as also the value of the said printed copy not so delivered, the same to be recovered by the queen's majesty, her heirs and successors, and by the chancellor, masters, and scholars of any of the said universities, and by the president and fellows of sion college, and the said faculty of advocates at edinburgh, with their full costs respectively. provided always, and be it further enacted, that if any person or persons incur the penalties contained in this act, in that part of great britain called scotland, they shall be recoverable by any action before the court of session there. provided, that nothing in this act contained do extend, or shall be construed to extend, to prohibit the importation, vending, or selling of any books in greek, latin, or any other foreign language printed beyond the seas; any thing in this act contained to the contrary notwithstanding. and be it further enacted by the authority aforesaid, that if any action or suit shall be commenced or brought against any person or persons whatsoever, for doing or causing to be done any thing in pursuance of this act, the defendants in such action may plead the general issue, and give the special matter in evidence; and if upon such action a verdict be given for the defendant, or the plaintiff become nonsuited, or discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath. provided, that nothing in this act contained shall extend, or be construed to extend, either to prejudice or confirm any right that the said universities, or any of them, or any person or persons have, or claim to have, to the printing or reprinting any book or copy already printed, or hereafter to be printed. page provided nevertheless, that all actions, suits, bills, indictments, or informations for any offence that shall be committed against this act, shall be brought, sued, and commenced within three months next after such offence committed, or else the same shall be void and of none effect. provided always, that after the expiration of the said term of fourteen years, the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years. the end a transcription from the original statute of anne the statute of anne page anno octavo annregin an act for the encouragement of learning, by vest- ing the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned. whereas printers, booksellers, and other persons, have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be print- ed, reprinted, and published books, and other writings, without the con- sent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their fami- lies: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write use- ful books; may it please your majesty, that it may be en- acted, and be it enacted by the queens most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that from and after the tenth day of april, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller or book- sellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of april, and no longer; and that the author of any book or books already composed and not printed and published, or that shall hereafter be composed, and his assignee, or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of four -teen page teen years, to commence from the day of the first publish- ing the same, and no longer; and that if any other bookseller, printer, or other person whatsoever, from and after the tenth day of april, one thousand seven hundred and ten, within the times granted and limited by this act, as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported any such book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed or reprinted, without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books, without such consent first had and obtained, as afore- said, then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste-paper of them: and further, that every such offender or offenders, shall forfeit one peny [sic] for every sheet which shall be found in his, her, or their custody, either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this act, the one moiety thereof to the queens [sic] most excellent majesty, her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her majesties [sic] courts of record at westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege, or protection, or more than one imparlance, shall be allowed. and whereas many persons may through ignorance offend against this act, unless some provision be made whereby the pro- perty in every such book, as is intended by this act to be se- cured to the proprietor or proprietors thereof, may be ascertain- ed, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known; be it therefore further enacted by the au- thority aforesaid, that nothing in this act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein men- tioned, for or by reason of the printing or reprinting of any book or books without such consent, as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such publication be entred [sic], in the register-book of the company of stationers, in such manner as hath been usual, which register-book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entred [sic], as aforesaid, for every of which several entries, six pence shall be paid, and no more; which said register-book may, at all seasonable [sic; should be: reasonable] and convenient times, be resorted to, and inspected by any book- seller, printer, or other person, for the purposes before menti- oned, page oned, without any fee or reward; and the clerk of the said company of stationers, shall, when and as often as thereunto required, give a certificate under his hand of such entry or en- tries, and for every such certificate, may take a fee not exceed- ing six pence. provided nevertheless, that if the clerk of the said com- pany of stationers, for the time being shall refuse or neglect to register, or make such entry or entries, or to give such cer- tificate, being thereunto required by the author or proprietor of such copy or copies, in the presence of two or more credible witnesses, that then such person and persons so refusing, no- tice being first duly given of such refusal, by an advertisement in the gazette, shall have the like benefit, as if such entry or entries, certificate or certificates had been duly made and gi- ven; and that the clerks so refusing, shall, for any such offence, forfeit to the proprietor of such copy or copies the sum of twenty pounds, to be recovered in any of her majesties [sic] courts of record at westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege or protection, or more than one imparlance shall be allowed. provided nevertheless, and it is hereby further enacted by the authority aforesaid, that if any bookseller or booksellers, printer or printers, shall, after the said five and twentieth day of march, one thousand seven hundred and ten, set a price upon, or sell or expose to sale, any book or books at such a price or rate as shall be conceived by any person or persons to be high and unreasonable; it shall and may be lawful for any person or persons to make complaint thereof to the lord archbishop of canterbury for the time being; the lord chancellor, or lord keeper of the great seal of great britain for the time being; the lord bishop of london for the time being; the lord chief justice of the court of queens [sic] bench, the lord chief justice of the court of common pleas, the lord chief baron of the court of exchequer, for the time being; the vice-chancellors of the two universities for the time being, in that part of great britain called england; the lord president of the sessions for the time being; the lord justice general for the time being; the lord chief baron of the exchequer for the time being; the rector of the college of edinburgh for the time being, in that part of great britain called scotland; who, or any one of them, shall and have hereby full power and authority from time to time, to send for, sum- mon, or call before him or them such bookseller or book- sellers, printer or printers, and to examine and enquire of the reason of the dearness and inhauncement of the price or va- lue of such book or books by him or them so sold or exposed to sale; and if upon such enquiry and examination it shall be found, that the price of such book or books is inhaunced, or any page any wise too high or unreasonable, then and in such case, the said archbishop of canterbury, lord chancellor or lord keeper, bishop of london, two chief justices, chief baron, vice- chancellors of the universities, in that part of great britain called england, and the said lord president of the sessions, lord justice general, lord chief baron, and rector of the college of edinburgh, in that part of great britain called scotland, or any one or more of them, so enquiring and examining, have hereby full power and authority to reform and redress the same, and to limit and settle the price of every such printed book and books, from time to time, according to the best of their judgements, and as to them shall seem just and reasonable; and in case of alteration of the rate or price from what was set or demanded by such bookseller or booksellers, printer or printers, to award and order such bookseller and booksellers, printer and printers, to pay all the costs and charges that the person or persons so complaining shall be put unto, by reason of such complaint, and of the causing such rate or price to be so limited and settled; all which shall be done by the said archbishop of canterbury, lord chancellor, or lord keeper, bishop of london, two chief justices, chief baron, vice chancellors of the two universities, in that part of great britain called england, and the said lord president of the sessions, lord justice general, lord chief baron, and rector of the college of edinburgh, in that part of great britain called scotland, or any one of them, by writing under their hands and seals, and thereof publick notice shall be forthwith given by the said bookseller or booksellers, printer or printers, by an advertisement in the gazette; and if any bookseller or book- sellers, printer or printers, shall, after such settlement made of the said rate and price, sell, or expose to sale any book or books, at a higher or greater price than what shall have been so limited and settled, as aforesaid, then and in every such case such bookseller and booksellers, printer and printers, shall forfeit the sum of five pounds for every such book so by him, her, or them sold or exposed to sale; one moiety thereof to the queens [sic] most excellent majesty, her heirs and successors, and the other moiety to any person or persons that shall sue for the same, to be recovered, with costs of suit, in any of her majesties [sic] courts of record at westminster, by acti- on of debt, bill, plaint or information, in which no wager of law, essoign, privilege or protection, or more than one im- parlance, shall be allowed. provided always, and it is hereby enacted, that nine copies of each book or books, upon the best paper, that from and af- ter the said tenth day of april, one thousand seven hundred and ten, shall be printed and published, as aforesaid, or re- printed and published with additions, shall, by the printer and printers thereof, be delivered to the warehouse-keeper of the said page said company of stationers for the time being, at the hall of the said company, before such publication made, for the use of the royal library, the libraries of the universities of oxford and cambridge, the libraries of the four universities in scot- land, the library of sion college in london, and the library commonly called the library belonging to the faculty of advo- cates at edinburgh respectively; which said warehouse-keeper, is hereby required, within ten days after demand by the keepers of the respective libraries, or any person or persons by them or any of them authorised to demand the said copy, to deli- ver the same, for the use of the aforesaid libraries; and if any proprietor, bookseller or printer, or the said warehouse-keeper of the said company of stationers, shall not observe the directi- on of this act therein, that then he and they, so making de- fault in not delivering the said printed copies, as aforesaid, shall forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered, as also the value of the said printed copy not so delivered, the same to be recovered by the queens [sic] majesty, her heirs and successors, and by the chancellor, masters, and scholars of any of the said universities, and by the president and fellows of sion college, and the said faculty of advocates at edinburgh, with their full costs respectively. provided always, and be it further enacted, that if any per- son or persons incur the penalties contained in this act, in that part of great britain called scotland, they shall be recoverable by any action before the court of session there. provided, that nothing in this act contained do extend, or shall be construed to extend, to prohibit the importation, vending, or selling of any books in greek, latin, or any other foreign language printed beyond the seas; any thing in this act con- tained to the contrary notwithstanding. and be it further enacted by the authority aforesaid, that if any action or suit shall be commenced or brought against any person or persons whatsoever, for doing or causing to be done any thing in pursuance of this act, the defendants in such action may plead the general issue, and give the special matter in evidence; and if upon such action a verdict be given for the defendant, or the plaintiff become nonsuited, or discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath. provided, that nothing in this act contained shall extend, or be construed to extend, either to prejudice or confirm any right that the said universities, or any of them, or any per- son or persons have, or claim to have, to the printing or re- printing any book or copy already printed, or hereafter to be printed. provided page provided nevertheless, that all actions, suits, bills, in- dictments, or informations for any offence that shall be com- mitted against this act, shall be brought, sued, and com- menced within three months next after such offence committed, or else the same shall be void and of none effect. provided always, that after the expiration of the said term of fourteen years, the sole right of printing or dis- posing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years. finis. http://www.copyrighthistory.com/anne .html also has scans. . . . the statute of anne page anno octavo annregin an act for the encouragement of learning, by vest- ing the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned. whereas printers, booksellers, and other persons, have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be print- ed, reprinted, and published books, and other writings, without the con- sent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their fami- lies: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write use- ful books; may it please your majesty, that it may be en- acted, and be it enacted by the queens most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present parliament assembled, and by the authority of the same, that from and after the tenth day of april, one thousand seven hundred and ten, the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books, share or shares thereof, or the bookseller or book- sellers, printer or printers, or other person or persons, who hath or have purchased or acquired the copy or copies of any book or books, in order to print or reprint the same, shall have the sole right and liberty of printing such book and books for the term of one and twenty years, to commence from the said tenth day of april, and no longer; and that the author of any book or books already composed and not printed and published, or that shall hereafter be composed, and his assignee, or assigns, shall have the sole liberty of printing and reprinting such book and books for the term of four -teen page teen years, to commence from the day of the first publish- ing the same, and no longer; and that if any other bookseller, printer, or other person whatsoever, from and after the tenth day of april, one thousand seven hundred and ten, within the times granted and limited by this act, as aforesaid, shall print, reprint, or import, or cause to be printed, reprinted, or imported any such book or books, without the consent of the proprietor or proprietors thereof first had and obtained in writing, signed in the presence of two or more credible witnesses; or knowing the same to be so printed or reprinted, without the consent of the proprietors, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such book or books, without such consent first had and obtained, as afore- said, then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the proprietor or proprietors of the copy thereof, who shall forthwith damask and make waste-paper of them: and further, that every such offender or offenders, shall forfeit one peny [sic] for every sheet which shall be found in his, her, or their custody, either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this act, the one moiety thereof to the queens [sic] most excellent majesty, her heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of her majesties [sic] courts of record at westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege, or protection, or more than one imparlance, shall be allowed. and whereas many persons may through ignorance offend against this act, unless some provision be made whereby the pro- perty in every such book, as is intended by this act to be se- cured to the proprietor or proprietors thereof, may be ascertain- ed, as likewise the consent of such proprietor or proprietors for the printing or reprinting of such book or books may from time to time be known; be it therefore further enacted by the au- thority aforesaid, that nothing in this act contained shall be construed to extend to subject any bookseller, printer, or other person whatsoever, to the forfeitures or penalties therein men- tioned, for or by reason of the printing or reprinting of any book or books without such consent, as aforesaid, unless the title to the copy of such book or books hereafter published shall, before such publication be entred [sic], in the register-book of the company of stationers, in such manner as hath been usual, which register-book shall at all times be kept at the hall of the said company, and unless such consent of the proprietor or proprietors be in like manner entred [sic], as aforesaid, for every of which several entries, six pence shall be paid, and no more; which said register-book may, at all seasonable [sic; should be: reasonable] and convenient times, be resorted to, and inspected by any book- seller, printer, or other person, for the purposes before menti- oned, page oned, without any fee or reward; and the clerk of the said company of stationers, shall, when and as often as thereunto required, give a certificate under his hand of such entry or en- tries, and for every such certificate, may take a fee not exceed- ing six pence. provided nevertheless, that if the clerk of the said com- pany of stationers, for the time being shall refuse or neglect to register, or make such entry or entries, or to give such cer- tificate, being thereunto required by the author or proprietor of such copy or copies, in the presence of two or more credible witnesses, that then such person and persons so refusing, no- tice being first duly given of such refusal, by an advertisement in the gazette, shall have the like benefit, as if such entry or entries, certificate or certificates had been duly made and gi- ven; and that the clerks so refusing, shall, for any such offence, forfeit to the proprietor of such copy or copies the sum of twenty pounds, to be recovered in any of her majesties [sic] courts of record at westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege or protection, or more than one imparlance shall be allowed. provided nevertheless, and it is hereby further enacted by the authority aforesaid, that if any bookseller or booksellers, printer or printers, shall, after the said five and twentieth day of march, one thousand seven hundred and ten, set a price upon, or sell or expose to sale, any book or books at such a price or rate as shall be conceived by any person or persons to be high and unreasonable; it shall and may be lawful for any person or persons to make complaint thereof to the lord archbishop of canterbury for the time being; the lord chancellor, or lord keeper of the great seal of great britain for the time being; the lord bishop of london for the time being; the lord chief justice of the court of queens [sic] bench, the lord chief justice of the court of common pleas, the lord chief baron of the court of exchequer, for the time being; the vice-chancellors of the two universities for the time being, in that part of great britain called england; the lord president of the sessions for the time being; the lord justice general for the time being; the lord chief baron of the exchequer for the time being; the rector of the college of edinburgh for the time being, in that part of great britain called scotland; who, or any one of them, shall and have hereby full power and authority from time to time, to send for, sum- mon, or call before him or them such bookseller or book- sellers, printer or printers, and to examine and enquire of the reason of the dearness and inhauncement of the price or va- lue of such book or books by him or them so sold or exposed to sale; and if upon such enquiry and examination it shall be found, that the price of such book or books is inhaunced, or any page any wise too high or unreasonable, then and in such case, the said archbishop of canterbury, lord chancellor or lord keeper, bishop of london, two chief justices, chief baron, vice- chancellors of the universities, in that part of great britain called england, and the said lord president of the sessions, lord justice general, lord chief baron, and rector of the college of edinburgh, in that part of great britain called scotland, or any one or more of them, so enquiring and examining, have hereby full power and authority to reform and redress the same, and to limit and settle the price of every such printed book and books, from time to time, according to the best of their judgements, and as to them shall seem just and reasonable; and in case of alteration of the rate or price from what was set or demanded by such bookseller or booksellers, printer or printers, to award and order such bookseller and booksellers, printer and printers, to pay all the costs and charges that the person or persons so complaining shall be put unto, by reason of such complaint, and of the causing such rate or price to be so limited and settled; all which shall be done by the said archbishop of canterbury, lord chancellor, or lord keeper, bishop of london, two chief justices, chief baron, vice chancellors of the two universities, in that part of great britain called england, and the said lord president of the sessions, lord justice general, lord chief baron, and rector of the college of edinburgh, in that part of great britain called scotland, or any one of them, by writing under their hands and seals, and thereof publick notice shall be forthwith given by the said bookseller or booksellers, printer or printers, by an advertisement in the gazette; and if any bookseller or book- sellers, printer or printers, shall, after such settlement made of the said rate and price, sell, or expose to sale any book or books, at a higher or greater price than what shall have been so limited and settled, as aforesaid, then and in every such case such bookseller and booksellers, printer and printers, shall forfeit the sum of five pounds for every such book so by him, her, or them sold or exposed to sale; one moiety thereof to the queens [sic] most excellent majesty, her heirs and successors, and the other moiety to any person or persons that shall sue for the same, to be recovered, with costs of suit, in any of her majesties [sic] courts of record at westminster, by acti- on of debt, bill, plaint or information, in which no wager of law, essoign, privilege or protection, or more than one im- parlance, shall be allowed. provided always, and it is hereby enacted, that nine copies of each book or books, upon the best paper, that from and af- ter the said tenth day of april, one thousand seven hundred and ten, shall be printed and published, as aforesaid, or re- printed and published with additions, shall, by the printer and printers thereof, be delivered to the warehouse-keeper of the said page said company of stationers for the time being, at the hall of the said company, before such publication made, for the use of the royal library, the libraries of the universities of oxford and cambridge, the libraries of the four universities in scot- land, the library of sion college in london, and the library commonly called the library belonging to the faculty of advo- cates at edinburgh respectively; which said warehouse-keeper, is hereby required, within ten days after demand by the keepers of the respective libraries, or any person or persons by them or any of them authorised to demand the said copy, to deli- ver the same, for the use of the aforesaid libraries; and if any proprietor, bookseller or printer, or the said warehouse-keeper of the said company of stationers, shall not observe the directi- on of this act therein, that then he and they, so making de- fault in not delivering the said printed copies, as aforesaid, shall forfeit, besides the value of the said printed copies, the sum of five pounds for every copy not so delivered, as also the value of the said printed copy not so delivered, the same to be recovered by the queens [sic] majesty, her heirs and successors, and by the chancellor, masters, and scholars of any of the said universities, and by the president and fellows of sion college, and the said faculty of advocates at edinburgh, with their full costs respectively. provided always, and be it further enacted, that if any per- son or persons incur the penalties contained in this act, in that part of great britain called scotland, they shall be recoverable by any action before the court of session there. provided, that nothing in this act contained do extend, or shall be construed to extend, to prohibit the importation, vending, or selling of any books in greek, latin, or any other foreign language printed beyond the seas; any thing in this act con- tained to the contrary notwithstanding. and be it further enacted by the authority aforesaid, that if any action or suit shall be commenced or brought against any person or persons whatsoever, for doing or causing to be done any thing in pursuance of this act, the defendants in such action may plead the general issue, and give the special matter in evidence; and if upon such action a verdict be given for the defendant, or the plaintiff become nonsuited, or discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath. provided, that nothing in this act contained shall extend, or be construed to extend, either to prejudice or confirm any right that the said universities, or any of them, or any per- son or persons have, or claim to have, to the printing or re- printing any book or copy already printed, or hereafter to be printed. provided page provided nevertheless, that all actions, suits, bills, in- dictments, or informations for any offence that shall be com- mitted against this act, shall be brought, sued, and com- menced within three months next after such offence committed, or else the same shall be void and of none effect. provided always, that after the expiration of the said term of fourteen years, the sole right of printing or dis- posing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years. finis. the three charters of the virginia company of london with seven related documents; - with an introduction by samuel m. bemiss president, virginia historical society virginia th anniversary celebration corporation williamsburg, virginia copyright©, by virginia th anniversary celebration corporation, williamsburg, virginia jamestown th anniversary historical booklet number contents introduction v the first charter, april , articles, instructions and orders november , ordinance and constitution, march , the second charter, may , virginia council instructions to sir thomas gates, may, virginia council instructions to sir thomas west, / the third charter, march , virginia company instructions to sir george yeardley, november , (sometimes called "the great charter") virginia company instructions to governor and council in virginia, july , treasurer and company. an ordinance and constitution for council and assembly in virginia, july , introduction historians may trace in the royal charters issued to the virginia company of london a course of empire; a company organized for profit by the ablest businessmen of their time--merchants, manufacturers, statesmen, and artists who bound themselves together in a joint stock enterprise. the historian may also find in the three charters here published a pattern for a parliamentary system and its development into the american form of government. he might even perceive the inception of a new society. the origin of the joint stock company was probably primitive. its later genesis may readily be seen in the medieval guild. it became an english institution in its application by sir walter raleigh to his magnificent adventures in both honest trade and romantic piracy. the company provided an agency for assembling adventure capital and supplying able management to enterprises of great moment. it offered an invitation to the industrious to participate in the growing wealth and expanding power of the great english middle class. it supplied an opportunity to small investors and it limited their liability. it was an adaptation by practical people to practical problems. subscribers, or shareholders, met in their quarterly courts to discuss the business of the company and participate in its management. these courts were the counterpart of our present day corporate stockholders' meetings and were characterized by the same sort of discussions. king james could protest vehemently against the "democratical principles of the company." he could see in their charters the final death warrant of feudalism. he could execute raleigh "chiefly for giving satisfaction to the king of spain." he could revoke the charters in , but he could not stop the rising tide of representative institutions nor darken the great vision of the liberal elizabethans. a new day had dawned. the general assembly which met at jamestown in was the natural child of the company. some of the planters along the james river were shareholders in the company. they had a voice in its management. in the management of the civil affairs of the colony it was, therefore, logical that the plantations should elect their representatives to the local governing body. it was thus that the first freely elected parliament of a self-governing people in the western world came into existence. its principles were based on those of the corporation chartered and organized for profit by businessmen. the three charters here published, changed successively to meet changing conditions, were the rules and the by-laws for the commercial, economic, and political development of a homogeneous, industrious english society in a land of opportunity. the principal authors and executors of the charters, sir thomas smith and sir edwin and george sandys, were businessmen. they were practical men. they found a practical way to assemble capital and ability, and coordinate them in constructive enterprise. a hundred years before the great virginia adventure, luther, erasmus, and columbus rang down the curtain on the weary and confined drama of the middle ages. expanding horizons challenged man's vision and intellect. great courage made englishmen adventurers in all things. the charters here presented are among the world's great documents. the first which was drawn while sir edward coke was lord chief justice is replete with certain traditional and feudal principles, reverence for the english common law and the supreme authority of the king and his agents. the second, principally the work of the liberal sir edwin sandys with the approving participation of sir francis bacon, great exponent of natural law, marks a transition from government by arbitrary royal authority to the concept that government rests on the consent of the governed and on the fundamental right of man to enjoy the fruits of his labor. students may read in this charter the first principles of the american constitution. the third charter is an attempt to refine principles enunciated in the second in the light of experience. in addition to its political significance, the second charter proved a tremendous stimulus to the virginia enterprise. gondomar, the spanish ambassador, wrote to his king that "fourteen counts and barons have given , ducats, the merchants give much more and there is no poor little man or woman who is not willing to subscribe something." the landed aristocracy, gentry, merchants, and yeomen had joined in a company which they directed to provide capital and ability for a great enterprise. the text of the three charters of the virginia company is taken from a contemporary copy recently discovered among the chancery rolls of the public record office in london--contemporary enrollments "representing the official text of the charters kept in official custody," according to the deputy keeper, mr. d. l. evans. a photostatic copy of this manuscript is in possession of the virginia state library. each charter was transcribed in england by doctor nellie j. m. kerling for the editor's use. heretofore scholars have had access to the charters only through the text in william stith's _the history of the first discovery and settlement of virginia_ (williamsburg, printed by william parks, ), in sources based upon this, or in alexander brown's _the genesis of the united states_ (boston, ). no original of any of the charters is known to exist, although other copies of varying degrees of completeness have been located in england and on the continent. one copy, made with the authority of the governor, council, and house of burgesses of the colony, was used as evidence to support a petition against lord culpeper's land grants. this is included in the henry coventry papers in the library of the marquess of bath at longleat, wiltshire, england (vol. lxxvi, _papers relating to virginia, barbados, and other colonies, - _). these documents have been microfilmed by the american council of learned societies, "british manuscripts project." many of them will soon be published by the virginia historical society under the editorship of dr. w. e. washburn. another copy of the charters is in the public record office, "entry books of letters, commissions, instructions, charters, warrants, patents, grants, etc." (formerly "record book no. lxxix"), an abstract of which appears in the _calendar of state papers, colonial series_, vol. i. microfilm copies of this text are in the library of congress and the virginia state library. other copies have recently been discovered in france and spain by dr. george reese who has been employed by the virginia th anniversary celebration corporation to search foreign libraries for documentary material pertinent to the study of th century virginia. ultimately, microfilm copies of these records will be made available to research libraries in the united states. the seven accompanying documents, included to illustrate the practical rather than theoretical basis of the administration of the colony, have been taken from the best available manuscript or printed source. these official papers, together with the three charters of the virginia company, may be termed the constitutions and are the basic sources for the study of the colony during the first fifteen years of its existence. a few necessary liberties have been taken in transcribing these documents: abbreviations and contractions have been spelled out, capitalization and punctuation have been adjusted according to modern usage and, to prevent possible confusion, certain letters used interchangeably (such as "i" and "j", "v" and "u") are employed according to twentieth century practice. in the text of the three charters, omitted words or phrases have been supplied in brackets from the text in stith. brackets are also employed to supply the name of an adventurer if there is any deviation in spelling between stith and the manuscript version: _e.g._, "sir charles willmott, knight [wilmot]." this publication owes its issuance to the inspiration and leadership furnished by dr. earl g. swem, librarian emeritus of the college of william and mary. i should like also to acknowledge the faithful transcription of the text by dr. nellie j. n. kerling, and the deep interest and active support of dr. gertrude r. b. richards, who most patiently assisted in the transcription; also to mr. francis l. berkeley, jr., archivist of the alderman library, university of virginia and to mr. john m. jennings, director of the virginia historical society. to mr. james a. servies, reference librarian of the library of william and mary college, has fallen the arduous and difficult task of a comparative, detailed study of all the texts in the different versions. the printed text in these pages is from a typed copy by mr. servies, prepared with the most painstaking application, as the result of the comparison of copies transcribed by dr. kerling and dr. richards, and of the printed pages in stith. the merit of an accurate and readable text must be ascribed to the industry and scholarly perception of mr. servies. samuel m. bemiss the three charters of the virginia company of london the first charter april , james, by the grace of god [king of england, scotland, france, and ireland, defender of the faith], etc. whereas our loving and weldisposed subjects, sir thomas gates and sir george somers, knightes; richarde hackluit, clarke, prebendarie of westminster; and edwarde maria winghfeilde,[ ] thomas hannam and raleighe gilberde, esquiers; william parker and george popham, gentlemen; and divers others of our loving subjects, have been humble sutors unto us that wee woulde vouchsafe unto them our licence to make habitacion, plantacion and to deduce a colonie of sondrie of our people into that parte of america commonly called virginia, and other parts and territories in america either appartaining unto us or which are not nowe actuallie possessed by anie christian prince or people, scituate, lying and being all along the sea coastes between fower and thirtie degrees of northerly latitude from the equinoctiall line and five and fortie degrees of the same latitude and in the maine lande betweene the same fower and thirtie and five and fourtie degrees, and the ilandes thereunto adjacente or within one hundred miles of the coaste thereof; [footnote : throughout, this and the following two names are spelled as "wingfield," "hanham," and "gilbert" in stith.] and to that ende, and for the more speedy accomplishemente of theire saide intended plantacion and habitacion there, are desirous to devide themselves into two severall colonies and companies, the one consisting of certaine knightes, gentlemen, marchanntes and other adventurers of our cittie of london, and elsewhere, which are and from time to time shalbe joined unto them which doe desire to begin theire plantacions and habitacions in some fitt and conveniente place between fower and thirtie and one and fortie degrees of the said latitude all alongest the coaste of virginia and coastes of america aforesaide; and the other consisting of sondrie knightes, gentlemen, merchanntes, and other adventurers of our citties of bristoll and exeter, and of our towne of plymouthe, and of other places which doe joine themselves unto that colonie which doe desire to beginn theire plantacions and habitacions in some fitt and convenient place betweene eighte and thirtie degrees and five and fortie degrees of the saide latitude all alongst the saide coaste of virginia and america as that coaste lieth; wee, greately commending and graciously accepting of theire desires to the furtherance of soe noble a worke which may, by the providence of almightie god, hereafter tende to the glorie of his divine majestie in propagating of christian religion to suche people as yet live in darkenesse and miserable ignorance of the true knoweledge and worshippe of god and may in tyme bring the infidels and salvages living in those parts to humane civilitie and to a setled and quiet govermente, doe by theise our lettres patents graciously accepte of and agree to theire humble and well intended desires; and doe, therefore, for us, our heires and successors, grannte and agree that the saide sir thomas gates, sir george sumers, richarde hackluit and edwarde maria winghfeilde, adventurers of and for our cittie of london, and all suche others as are or shalbe joined unto them of that colonie, shalbe called the firste colonie, and they shall and may beginne theire saide firste plantacion and seate of theire firste aboade and habitacion at anie place upon the saide coaste of virginia or america where they shall thincke fitt and conveniente betweene the saide fower and thirtie and one and fortie degrees of the saide latitude; and that they shall have all the landes, woods, soile, groundes, havens, ports, rivers, mines, mineralls, marshes, waters, fishinges, commodities and hereditamentes whatsoever, from the said first seate of theire plantacion and habitacion by the space of fiftie miles of englishe statute measure all alongest the saide coaste of virginia and america towardes the weste and southe weste as the coaste lieth, with all the islandes within one hundred miles directlie over againste the same sea coaste; and alsoe all the landes, soile, groundes, havens, ports, rivers, mines, mineralls, woods, marrishes [marshes], waters, fishinges, commodities and hereditamentes whatsoever, from the saide place of theire firste plantacion and habitacion for the space of fiftie like englishe miles, all alongest the saide coaste of virginia and america towardes the easte and northeaste [or toward the north] as the coaste lieth, together with all the islandes within one hundred miles directlie over againste the same sea coaste; and alsoe all the landes, woodes, soile, groundes, havens, portes, rivers, mines, mineralls, marrishes, waters, fishinges, commodities and hereditamentes whatsoever, from the same fiftie miles everie waie on the sea coaste directly into the maine lande by the space of one hundred like englishe miles; and shall and may inhabit and remaine there; and shall and may alsoe builde and fortifie within anie the same for theire better safegarde and defence, according to theire best discrecions and the direction of the counsell of that colonie; and that noe other of our subjectes shalbe permitted or suffered to plante or inhabit behinde or on the backside of them towardes the maine lande, without the expresse licence or consente of the counsell of that colonie thereunto in writing firste had or obtained. and wee doe likewise for us, our heires and successors, by theise presentes grannte and agree that the saide thomas hannam and raleighe gilberde, william parker and george popham, and all others of the towne of plymouthe in the countie of devon, or elsewhere, which are or shalbe joined unto them of that colonie, shalbe called the seconde colonie; and that they shall and may beginne theire saide firste plantacion and seate of theire first aboade and habitacion at anie place upon the saide coaste of virginia and america, where they shall thincke fitt and conveniente, betweene eighte and thirtie degrees of the saide latitude and five and fortie degrees of the same latitude; and that they shall have all the landes, soile, groundes, havens, ports, rivers, mines, mineralls, woods, marishes, waters, fishinges, commodities and hereditaments whatsoever, from the firste seate of theire plantacion and habitacion by the space of fiftie like englishe miles, as is aforesaide, all alongeste the saide coaste of virginia and america towardes the weste and southwest, or towardes the southe, as the coaste lieth, and all the islandes within one hundred miles directlie over againste the saide sea coaste; and alsoe all the landes, soile, groundes, havens, portes, rivers, mines, mineralls, woods, marishes, waters, fishinges, commodities and hereditamentes whatsoever, from the saide place of theire firste plantacion and habitacion for the space of fiftie like miles all alongest the saide coaste of virginia and america towardes the easte and northeaste or towardes the northe, as the coaste liethe, and all the islandes alsoe within one hundred miles directly over againste the same sea coaste; and alsoe all the landes, soile, groundes, havens, ports, rivers, woodes, mines, mineralls, marishes, waters, fishings, commodities and hereditaments whatsoever, from the same fiftie miles everie waie on the sea coaste, directlie into the maine lande by the space of one hundred like englishe miles; and shall and may inhabit and remaine there; and shall and may alsoe builde and fortifie within anie the same for theire better saufegarde according to theire beste discrecions and the direction of the counsell of that colonie; and that none of our subjectes shalbe permitted or suffered to plante or inhabit behinde or on the backe of them towardes the maine lande without the expresse licence or consente of the counsell of that colonie, in writing thereunto, firste had and obtained. provided alwaies, and our will and pleasure herein is, that the plantacion and habitacion of suche of the saide colonies as shall laste plante themselves, as aforesaid, shall not be made within one hundred like englishe miles of the other of them that firste beganne to make theire plantacion, as aforesaide. [illustration: photo by t. l. williams king james i from the painting by paul van somer] and wee doe alsoe ordaine, establishe and agree for [us], our heires and successors, that eache of the saide colonies shall have a counsell which shall governe and order all matters and causes which shall arise, growe, or happen to or within the same severall colonies, according to such lawes, ordinannces and instructions as shalbe in that behalfe, given and signed with our hande or signe manuell and passe under the privie seale of our realme of englande; eache of which counsells shall consist of thirteene parsons[ ] and to be ordained, made and removed from time to time according as shalbe directed and comprised in the same instructions; and shall have a severall seale for all matters that shall passe or concerne the same severall counsells, eache of which seales shall have the kinges armes engraven on the one side there of and his pourtraiture on the other; and that the seale for the counsell of the saide firste colonie shall have engraven rounde about on the one side theise wordes: sigillum regis magne britanie, francie [et] hibernie; on the other side this inscripture rounde about: pro consillio prime colonie virginie. and the seale for the counsell of the saide seconde colonie shall alsoe have engraven rounde about the one side thereof the foresaide wordes: sigillum regis magne britanie, francie [et] hibernie; and on the other side: pro consilio secunde colonie virginie. [footnote : _i.e._, "persons"] and that alsoe ther shalbe a counsell established here in englande which shall in like manner consist of thirteen parsons to be, for that purpose, appointed by us, our heires and successors, which shalbe called our counsell of virginia; and shall from time to time have the superior managing and direction onelie of and for all matters that shall or may concerne the govermente, as well of the said severall colonies as of and for anie other parte or place within the aforesaide precinctes of fower and thirtie and five and fortie degrees abovementioned; which counsell shal in like manner have a seale for matters concerning the counsell [or colonies] with the like armes and purtraiture as aforesaide, with this inscription engraven rounde about the one side: sigillum regis magne britanie, francie [et] hibernie; and rounde about the other side: pro consilio suo virginie. and more over wee doe grannte and agree for us, our heires and successors, that the saide severall counsells of and for the saide severall colonies shall and lawfully may by vertue hereof, from time to time, without interuption of us, our heires or successors, give and take order to digg, mine and searche for all manner of mines of goulde, silver and copper, as well within anie parte of theire saide severall colonies as of the saide maine landes on the backside of the same colonies; and to have and enjoy the goulde, silver and copper to be gotten there of to the use and behoofe of the same colonies and the plantacions thereof; yeilding therefore yerelie to us, our heires and successors, the fifte parte onelie of all the same goulde and silver and the fifteenth parte of all the same copper soe to be gotten or had, as is aforesaid, and without anie other manner of profitt or accompte to be given or yeilded to us, our heires or successors, for or in respecte of the same. and that they shall or lawfullie may establishe and cawse to be made a coine, to passe currant there betwene the people of those severall colonies for the more ease of traffique and bargaining betweene and amongest them and the natives there, of such mettall and in such manner and forme as the same severall counsells there shall limitt and appointe. and wee doe likewise for us, our heires and successors, by theise presents give full power and auctoritie to the said sir thomas gates, sir george sumers, richarde hackluit, edwarde maria winghfeilde, thomas hannam, raleighe gilberde, william parker and george popham, and to everie of them, and to the saide severall companies, plantacions and colonies, that they and everie of them shall and may at all and everie time and times hereafter have, take and leade in the saide voyage, and for and towardes the saide severall plantacions and colonies, and to travell thitherwarde and to abide and inhabit there in everie of the saide colonies and plantacions, such and somanie of our subjectes as shall willinglie accompanie them, or anie of them, in the saide voyages and plantacions, with sufficiente shipping and furniture of armour, weapon, ordonnance, powder, victall, and all other thinges necessarie for the saide plantacions and for theire use and defence there: provided alwaies that none of the said parsons be such as hereafter shalbe speciallie restrained by us, our heires or successors. moreover, wee doe by theise presents, for us, our heires and successors, give and grannte licence unto the said sir thomas gates, sir george sumers, richarde hackluite, edwarde maria winghfeilde, thomas hannam, raleighe gilberde, william parker and george popham, and to everie of the said colinies, that they and everie of them shall and may, from time to time and at all times for ever hereafter, for theire severall defences, incounter or expulse, repell and resist, aswell by sea as by lande, by all waies and meanes whatsoever, all and everie suche parson and parsons as without espiciall licence of the said severall colonies and plantacions shall attempte to inhabit within the saide severall precincts and limitts of the saide severall colonies and plantacions, or anie of them, or that shall enterprise or attempt at anie time hereafter the hurte, detrimente or annoyance of the saide severall colonies or plantacions. giving and grannting by theise presents unto the saide sir thomas gates, sir george somers, richarde hackluite, and edwarde maria winghfeilde, and theire associates of the said firste colonie, and unto the said thomas hannam, raleighe gilberde, william parker and george popham, and theire associates of the saide second colonie, and to everie of them from time to time and at all times for ever hereafter, power and auctoritie to take and surprize by all waies and meanes whatsoever all and everie parson and parsons with theire shipps, vessels, goods and other furniture, which shalbe founde traffiqueing into anie harbor or harbors, creeke, creekes or place within the limitts or precincts of the saide severall colonies and plantacions, not being of the same colonie, untill such time as they, being of anie realmes or dominions under our obedience, shall paie or agree to paie to the handes of the tresorer of the colonie, within whose limitts and precincts theie shall soe traffique, twoe and a halfe upon anie hundred of anie thing soe by them traffiqued, boughte or soulde; and being stranngers and not subjects under our obeysannce, untill they shall paie five upon everie hundred of suche wares and commoditie as theie shall traffique, buy or sell within the precincts of the saide severall colonies wherein theie shall soe traffique, buy or sell, as aforesaide; which sommes of money or benefitt, as aforesaide, for and during the space of one and twentie yeres nexte ensuing the date hereof shalbe whollie imploied to the use, benefitt and behoofe of the saide severall plantacions where such trafficque shalbe made; and after the saide one and twentie yeres ended the same shalbe taken to the use of us, our heires and successors by such officer and minister as by us, our heires and successors shalbe thereunto assigned or appointed. and wee doe further, by theise presentes, for us, our heires and successors, give and grannte unto the saide sir thomas gates, sir george sumers, richarde hachluit, and edwarde maria winghfeilde, and to theire associates of the saide firste colonie and plantacion, and to the saide thomas hannam, raleighe gilberde, william parker and george popham, and theire associates of the saide seconde colonie and plantacion, that theie and everie of them by theire deputies, ministers and factors may transport the goods, chattells, armor, munition and furniture, needfull to be used by them for theire saide apparrell, defence or otherwise in respecte of the saide plantacions, out of our realmes of englande and irelande and all other our dominions from time to time, for and during the time of seaven yeres nexte ensuing the date hereof for the better releife of the said severall colonies and plantacions, without anie custome, subsidie or other dutie unto us, our heires or successors to be yeilded or paide for the same. alsoe wee doe, for us, our heires and successors, declare by theise presentes that all and everie the parsons being our subjects which shall dwell and inhabit within everie or anie of the saide severall colonies and plantacions and everie of theire children which shall happen to be borne within the limitts and precincts of the said severall colonies and plantacions shall have and enjoy all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of englande or anie other of our saide dominions. moreover our gracious will and pleasure is, and wee doe by theise presents, for us, our heires and successors, declare and sett forthe, that if anie parson or parsons which shalbe of anie of the said colonies and plantacions or anie other, which shall trafficque to the saide colonies and plantacions or anie of them, shall at anie time or times hereafter transporte anie wares, marchandize or commodities out of [any] our dominions with a pretence and purpose to lande, sell or otherwise dispose the same within anie the limitts and precincts of anie of the saide colonies and plantacions, and yet nevertheles being at the sea or after he hath landed the same within anie of the said colonies and plantacions, shall carrie the same into any other forraine countrie with a purpose there to sell or dispose of the same without the licence of us, our heires or successors in that behalfe first had or obtained, that then all the goods and chattels of the saide parson or parsons soe offending and transporting, together with the said shippe or vessell wherein suche transportacion was made, shall be forfeited to us, our heires and successors. provided alwaies, and our will and pleasure is and wee doe hereby declare to all christian kinges, princes and estates, that if anie parson or parsons which shall hereafter be of anie of the said severall colonies and plantacions, or anie other, by his, theire, or anie of theire licence or appointment, shall at anie time or times hereafter robb or spoile by sea or by lande or doe anie acte of unjust and unlawfull hostilitie to anie the subjects of us, our heires or successors, or anie of the subjects of anie king, prince, ruler, governor or state being then in league or amitie with us, our heires or successors, and that upon suche injurie or upon juste complainte of such prince, ruler, governor or state or their subjects, wee, our heires or successors, shall make open proclamation within anie the ports of our realme of englande, commodious for that purpose, that the saide parson or parsons having committed anie such robberie or spoile shall, within the terme to be limitted by suche proclamations, make full restitucion or satisfaction of all suche injuries done, soe as the saide princes or others soe complained may houlde themselves fully satisfied and contented; and that if the saide parson or parsons having committed such robberie or spoile shall not make or cause to be made satisfaction accordingly with[in] such time soe to be limitted, that then it shalbe lawfull to us, our heires and successors to put the saide parson or parsons having committed such robberie or spoile and theire procurers, abbettors or comfortors out of our allegeannce and protection; and that it shalbe lawefull and free for all princes and others to pursue with hostilitie the saide offenders and everie of them and theire and everie of theire procurers, aiders, abbettors and comforters in that behalfe. and finallie wee doe, for us, our heires and successors, grannte and agree, to and with the saide sir thomas gates, sir george sumers, richarde hackluit and edwarde maria winghfeilde, and all other of the saide firste colonie, that wee, our heires or successors, upon peticion in that behalfe to be made, shall, by lettres patents under the greate [seale] of englande, give and grannte unto such parsons, theire heires and assignees, as the counsell of that colonie or the most part of them shall for that purpose nomminate and assigne, all the landes, tenements and hereditaments which shalbe within the precincts limitted for that colonie, as is aforesaid, to be houlden of us, our heires and successors as of our mannor of eastgreenwiche in the countie of kente, in free and common soccage onelie and not in capite. and doe, in like manner, grannte and agree, for us, our heires and successors, to and with the saide thomas hannam, raleighe gilberd, william parker and george popham, and all others of the saide seconde colonie, that wee, our heires [and] successors, upon petition in that behalfe to be made, shall, by lettres patentes under the great seale of englande, give and grannte unto such parsons, theire heires and assignees, as the counsell of that colonie or the most parte of them shall for that purpose nomminate and assigne, all the landes, tenementes and hereditaments which shalbe within the precinctes limitted for that colonie as is afore said, to be houlden of us, our heires and successors as of our mannor of eastgreenwich in the countie of kente, in free and common soccage onelie and not in capite. all which landes, tenements and hereditaments soe to be passed by the saide severall lettres patents, shalbe, by sufficient assurances from the same patentees, soe distributed and devided amongest the undertakers for the plantacion of the said severall colonies, and such as shall make theire plantacion in either of the said severall colonies, in such manner and forme and for such estates as shall [be] ordered and sett [downe] by the counsell of the same colonie, or the most part of them, respectively, within which the same lands, tenements and hereditaments shall ly or be. althoughe expresse mencion [of the true yearly value or certainty of the premises, or any of them, or of any other gifts or grants, by us or any our progenitors or predecessors, to the aforesaid sir thomas gates, knt. sir george somers, knt. richard hackluit, edward-maria wingfield, thomas hanham, ralegh gilbert, william parker, and george popham, or any of them, heretofore made, in these presents, is not made; or any statute, act, ordnance, or provision, proclamation, or restraint, to the contrary hereof had, made, ordained, or any other thing, cause, or matter whatsoever, in any wise notwithstanding.] in witnesse wherof [we have caused these our letters to be made patents;] witnesse our selfe at westminister the xth day of aprill [ , in the fourth year of our reign of england, france, and ireland, and of scotland the nine and thirtieth.] [lukin] exactum per breve de private sigillo [etc.] p. r. o. chancery patent rolls (c. ), ; stith, appendix, pp. - ; hening's _statutes_, vol. i, pp. - . articles, instructions and orders november , articles, instructions and orders made, sett down and established by us the twentieth day of november, in the year of our raigne of england, france and ireland the fourth and of scotland the fortieth, for the good order and government of the two several colonies and plantations to be made by our loving subjects in the country commonly called virginia and america, between and degrees from the aequinoctial line. wheras wee, by our letters pattents under our great seale of england bearing date att westminster the tenth day of aprill in the year of our raigne of england, france and ireland the fourth and of scotland the th, have given lycence to sundry our loving subjects named in the said letters pattents, and to their associates, to deduce and conduct two several collonies or plantations of sundry our loving people willing to abide and inhabit in certaine parts of virginia and america, with divers preheminences, priviledges, authorities and other things, as in and by the same letters pattents more particularly it appeareth; wee, according to the effect and true meaning of the same letters pattents, doe by these presents, signed with our hand, signe manuel and sealed with our privy seale of our realme of england, establish and ordaine that our trusty and welbeloved sir william wade, knight, our lieutanant of our tower of london; sir thomas smith, knight; sir walter cope, knight; sir george moor, knight; sir francis popeham, knight; sir ferdinando gorges, knight; sir john trevor, knight; sir henry montague, knight, recorder of the citty of london; sir william rumney, knight; john dodderidge, esq., solliciter general; thomas la warr, esq.; john eldred, of the citty of london, merchant; thomas james, of the citty of bristol, merchant; and james bagge, of plymouth, in the county of devonshire, merchant; shall be our councel for all matters which shall happen in virginia or any the territories of america between and degrees from the aequinoctial line northward and the islands to the several collonies limitted and assigned; and that they shal be called the king's councel of virginia, which councel or the most part of them shal have full power and authority att our pleasure, in our name and under us, our heires and successors, to give directions to the councels of the several colonies which shal be within any part of the said country of virginia and america within the degrees first above mentioned, with the islands aforesaid, for the good government of the people to be planted in those parts and for the good ordering and disposing of all causes happening within the same (and the same to be done for the substance thereof as neer to the common lawes of england and the equity thereof as may be) and to passe under our scale app[ointed][ ] for that councel, which councel and every or any of them shall from time to [time] be increased, altered or changed and others put in their places att the [nomi]nation of us, our heires and successors and att our and their will and plea[sure]; and the same councel of virginia or the more part of them, for the time bei[ng], shall nominate and appoint the first several councellours of those several councells which are to be appointed for those two several colonies whi[ch are] to be made plantations in virginia and america between the degrees [before] mentioned, according to our said letters pattents in that behalfe made; and that each of the same councels of the same several colonies shal, by the major part of them, choose one of the same councel, not being the minister of god's word, to be president of the same councel and to continue in that office by the space of one whole year, unlesse he shall in the mean time dye or be removed from that office; and wee doe further hereby establish & ordaine that it shal be lawful for the major part of either of the said councells, upon any just cause, either absence or otherwise, to remove the president or any other of that councel from being either president or any of that councel, and upon the deathes or removal of any of the presidents or councel it shal be lawfull for the major part of that councel to elect another in the place of the party soe dying or removed, soo alwaies as they shal not be above thirteen of either of the said councellours; and wee doe establish & ordaine that the president shal not continue in his office of presidentship above the space of one year; and wee doe especially ordaine, charge and require the said presidents and councells and the ministers of the said several colonies respectively, within their several limits and precincts, that they with all diligence, care and respect doe provide that the true word and service of god and christian faith be preached, planted and used, not only within every of the said several colonies and plantations but alsoe as much as they may amongst the salvage people which doe or shall adjoine unto them or border upon them, according to the doctrine, rights and religion now professed and established within our realme of england; and that they shall not suffer any person or persons to withdrawe any of the subjects or people inhabiting or which shall inhabit within any of the said several colonies and plantations from the same or from their due allegiance unto us, our heires and successors, as their immediate soveraigne under god; and if they shall find within any of the said colonies and plantations any person or persons soe seeking to withdrawe any of the subjects of us, our heires or successors, or any of the people of those lands or territories within the precincts aforesaid, they shall with all diligence him or them soe offending cause to be apprehended, arrested and imprisoned until he shall fully and throughly reforme himselfe, or otherwise, when the cause soe requireth, that he shall withall convenient speed be sent into our realme of england, here to receive condigne punishment for his or their said offence or offences; and moreover wee doe hereby ordaine and establish for us, our heires and successors that all the lands, tenements and hereditaments to be had and enjoyed by any of our subjects with the precincts aforesaid shal be had and inherited and injoyed according as in the like estates they be had & enjoyed by the lawes within this realme of england; and that the offences of tumults, rebellion, conspiracies, mutiny and seditions in those parts which maybe dangerous to the estates there, together with murther, manslaughter, incest, rapes and adulteries committed in those parts within the precincts of any the degrees above mentioned (and noe other offences) shal be punished by death, and that without the benefit of the clergy except in case of manslaughter, in which clergie is to be allowed; and that the said several presidents and councells and the greater number of them within every of the several limits and precincts shall have full power and authority to hear and determine all and every the offences aforesaid within the precinct of their several colonies, in manner and forme following, that is to say, by twelve honest and indifferent persons sworne upon the evangelists, to be returned by such ministers and officers, as every of the said presidents and councells, or the most part of them respectively, shall assigne; and the twelve persons soe returned and sworne shall, according to their evidence to be given unto them upon oath and according to the truth in their consciences, either convict or acquit every of the said persons soe to be accused & tried by them; and that all and every person or persons which shall voluntarily confesse any of the said offences to be committed by him shall, upon such his confession thereof, be convicted of the same as if he had been found guilty of the same by the verdict of any such twelve jurors, as is aforesaid; and that every person and persons which shall be accused of any of the said offences and which shall stand mute or refusing to make direct answer thereunto, shall be and be held convicted of the said offence as if he had been found guilty by the verdict of such twelve jurors, as aforesaid; and that every person and persons soe convicted either by verdict, his own confession or by standing mute or by refusing directly to answer as aforesaid of any of the offences before mentioned, the said presidents or councells, or the greatest number of them within their several precincts and limitts where such conviction shall be had and made, as aforesaid, shall have full power and authority by these presents to give judgment of death upon every such offended [offender] without the benefit of the clergy, except only in cause of manslaughter, and noe person soe adjudged, attainted or condemned shall be reprived from the execution of the said judgment without the consent of the said president and councel, or the most part of them by whom such judgment shall be given; and that noe person shal receive any pardon or be absolutely discharged of any the said offences for which he shall be condemned to death, as aforesaid, but by pardon of us, our heires and successors, under the great seale of england; and wee doe in like manner establish and ordaine if any either of the said collonies shall offend in any of the offences before mentioned, within any part between the degrees aforesaid, out of the precincts of his or their collony, that then every such offender or offenders shall be tried and punished as aforesaid within his or their proper colony; and that every the said presidents and councells, within their several limits and precincts and the more part of them, shall have power and authority by these presents to hear and determine all and every other wrongs, trespasses, offences and misdemeanors whatsoever, other than those before mentioned, upon accusation of any person and proofe thereof made by sufficient witnesse upon oath; and that in all those cases the said president and councel, and the greater number of them, shall have power and authority by these presents respectively, as is aforesaid, to punish the offender or offenders, either by reasonable corporal punishment and imprisonment or else by a convenient fine, awarding damages, or other satisfaction to the party grieved, as to the said president & councel or to the more part of them shall be thought fitt and convenient, having regard to the quality of the offence or state of the cause; and that alsoe the said president & councel shall have power and authority by virtue of these presents to punish all manner of excesse, through drunkennesse or otherwaies, and all idle, loytering and vagrant persons which shall be found within their several limits and precincts, according to their best discretions and with such convenient punishment as they or the most part of them shall think fitt; alsoe our will and pleasure [is], concerning the judicial proceedings aforesaid, that the same shall be made and done summarily and verbally without writing until it come to the judgment or sentence, and yet, neverthelesse, our will and pleasure is that every judgment and sentence hereafter to be given in any of the causes aforesaid, or in any other of the said several presidents and councells or the greater number of them within their several limits and precincts, shall be breifely and summarily registred into a book to be kept for that purpose, together with the cause for which the said judgment or sentence was given; and that the said judgment and sentence soe registered and written shall be subscribed with the hands or names of the said president and councel or such of them as gave the judgment or sentence; alsoe our will and pleasure is and wee doe hereby establish and ordaine that the said several collonies and plantations, and every person and persons of the same, severally and respectively, shall within every of their several precincts for the space of five years next after their first landing upon the said coast of virginia and america, trade together all in one stocke, or devideably but in two or three stocks att the most, and bring not only all the fruits of their labours there but alsoe all such other goods and commodities which shall be brought out of england or any other place into the same collonies, into severall magazines or storehouses for that purpose to be made and erected there, and that in such order, manner and form as the councel of that collony or the more part of them shall sett downe and direct; and our will and pleasure is and wee doe in like manner ordaine that in every of the said collonies and plantations there shall be chosen three, elected yearely by the president and councell of every of the said several colonies and plantations or the more part of them: one person of the same colony and plantation to be treasurer or cape-merchant of the same colony and plantation to take the charge and mannageinge of all such goods, wares and commodities which shall be brought into or taken out of the several magazines or storehouses, the same treasurer or cape-merchant to continue in his office by the space of one whole year next after his said election, unless he shall happen to dye within the said year or voluntarily give over the same or be removed for any just or reasonalbe cause; and that thereupon the same president and councell or the most part of them shall have power and authority to elect him again or any other or others in his room or stead to continue in the same office as aforesaid; and that alsoe there shall be two or more persons of good discretion within every of the said colonies and plantations elected and chosen yearely, during the said terme of five years, by the president and councel of the same collony or the most part of them respectively within their several limits and precincts, the one or more of them to keep a book in which shall be registred and entred all such goods, wares and merchandizes as shall be received into the several magazines or storehouses within that colony, being appointed for that purpose, and the other to keep a like book wherein shall be registred all goods, wares and merchandizes which shall issue or be taken out of any the several magazines or storehouses of that collony, which clarks shall continue in their said places but att the will of the president and councel of that colony whereof he is, or of the major part of them; and that every person of every the said several colonies and plantations shall be furnished with all necessaries out of those several magazines or storehouses which shall belong to the said colony and plantation in which that person is, for and during the terme and time of five yeares by the appointment, direction and order of the president and councell there, or of the said cape-merchant and two clerks or of the most part of them within the said several limits and precincts of the said colonies and plantations; alsoe our will and pleasure is and wee doe hereby ordain that the adventurers of the said first colony and plantation shall and may during the said terme of five years elect and choose out of themselves one or more companies, each company consisting of three persons att the least who shall be resident att or neer london, or such other place and places as the councel of the colony for the time being, or the most part of them, during the said five years shall think fitt, who shall there from time to time take charge of the trade and accompt of all such goods, wares, merchandizes and other things which shall be sent from thence to the company of the same colony or plantation in virginia, and likewise of all such wares, goods and merchandizes as shall be brought from the said colony or plantation unto that place within our realme of england, and of all things concerning the mannaging of the affaires and profits concerning the adventurors of that company which shall soe passe out of or come into that place or port; and likewise our will and pleasure is that the adventurors in the said second colony and plantation shall and may, during the said terme of five years, elect out of themselves one or more companies, each company consisting of three persons att the least who shall be resident att or near plymouth in our county of devon within our realme of england, and att such one, two or three other places or ports as the councel of that colony or the most part of them shall think fitt, who shall there from time to time take care and charge of the trade & accompt of all such goods, wares, merchandizes and other things which shall be sent from thence to the same colony and plantation in virginia, and likewise of all such goods, wares and merchandizes as shall be brought from the said colony and plantation in virginia into our realme of england, and of all things concerning the mannaging of the affaires and profits of the adventurors of that company; alsoe our will and pleasure is that noe person or persons shall be admitted into any of the said colonies and plantations, there to abide and remaine, but such as shall take not only the usual oath of obedience to us, our heires and successors; but alsoe the oath which is limitted in the last session of parliament, holden at westminster in the fourth year of our raigne, for their due obedience unto us, our heires and successors, that the trade to and from any the colonies aforesaid may be mannaged to and from such ports & places within our realme of england as is before in these articles intended, any thing set down heretofore to the contrary notwithstanding; and that the said president and councel of each of the said colonies, and the more part of them respectively, shall and may lawfully from time to time constitute, make and ordaine such constitutions, ordinances and officers for the better order, government and peace of the people of their several collonies, soe alwaies as the same ordinances and constitutions doe not touch any party in life or member, which constitutions & ordinances shall stand and continue in full force untill the same shall be otherwise altered or made void by us, our heires or successors, or our or their councel of virginia, soe alwaies as the same alterations be such as may stand with and be in substance consonant unto the lawes of england or the equity thereof; furthermore, our will and pleasure is and wee doe hereby determine and ordaine that every person and persons being our subjects of every the said collonies and plantations shall from time to time well entreate those salvages in those parts and use all good meanes to draw the salvages and heathen people of the same several places and of the territories and countries adjoining to the true service and knowledge of god, and that all just, kind and charitable courses shall be holden with such of them as shall conforme themselves to any good and sociable traffique and dealing with the subjects of us, our heires and successors which shall be planted there, whereby they may be the sooner drawne to the true knowledge of god and the obedience of us, our heires and successors under such severe paines and punishments as shal be inflicted by the same several presidents and councells of the said several colonies, or the most part of them, within their several limits and precincts, on such as shall offend therein or doe the contrary; and that as the said territories and countries of virginia and america within the degrees aforesaid shall from time to time increase in plantation by our subjects, wee, our heires and successors will, ordaine and give such order and further instructions, lawes, constitutions and ordinances for the better rule, order and government of such as soe shall make plantations there as to us, our heires and successors shall from time to time be thought fitt & convenient, which alwaies shall be such as may stand with or be in substance consonant unto the lawes of england or the equity thereof; and lastly wee doe ordaine and establish for us, our heires and successors that such oath shall be taken by each of our councellors here for virginia, concerning their place and office of councell, as by the privy councell of us, our heires and successors of this our realme of england shall be in that behalf limited & appointed; and that each councellor of the said colonies shall take such oath for the execution of their place and office of councel as by the councel of us, our heires and successors here in england, for virginia, shall in that behalfe be limited and appointed; and aswell those several articles and instructions herein mentioned and contained as alsoe all such as by virtue hereof shall hereafter be made and ordained, shall as need shall require, by the advice of our councel here for virginia be transcripted over unto the said several councells of the said several colonies under the seale to be ordained for our said councell here for virginia; in witnesses &c. [illustration: great seal of james i. (a.d. - .) photo by t. l. williams] virginia state library, "patents, no. , - "; hening, vol. i, pp. - . [footnote : the following words or letters missing from the manuscript have been supplied from the text in hening.] ordinance and constitution march , an ordinance and constitution enlarging the number of our councel for the two several colonies and plantations in virginia and america between and degrees of northerly latitude, and augmenting their authority for the better directing and ordering of such things as shall concerne the said colonies. james, by the grace of god, &c. whereas wee, by our letters patents under our great seale of england bearing date the tenth day of april last past, have given licence to sundry our loving subjects named in the said letters patents and to their associates to deduce and conduct two several colonies or plantations of sundry our loving people willing to abide and inhabit in certaine parts of virginia and america with divers preheminences, priviledges, authorities and other things, as in and by the said letters patents more particularly it appeareth; and whereas wee, according to the effect and true meaning of the said letters patents, have by a former instrument, signed with our hand and signe manuel and sealed with our privy seal of our realme of england, established and ordained that our trusty and welbeloved sir william wade, knight, our lieutanant of our tower of london; sir thomas smith, knight; sir walter cope, knight; sir george moor, knight; sir francis popeham, knight; sir ferdinando gorges, knight; sir john trevor, knight; sir henry montague, knight, recorder of our citty of london; sir william rumney, knight; john dodderidge, esqr., our solicitor general; thomas warr, esq.; john eldred, of our city of london, merchant; thomas james, of our citty of bristol, merchant; and james bagge, of plymouth in our county of devon, merchant; should be our councel for all matters which should happen in virginia or any the territories of america aforesaid, or any actions, businesse or causes for and concerning the same, which councel is from time to time to be encreased, altered or changed att the nomination of us, our heires and successors, and att our and their will and pleasure; & whereas our said councel have found by experience their number being but fourteen in all and most of them dispersed by reason of their several habitations far and remote the one from the other, and many of them in like manner far remote from our citty of london where, if need require, they may receive directions from us and our privy councel and from whence instructions and directions may be by them left and more readily given for the said colonies; that when very needful occasion requireth there cannot be any competent number of them by any meanes be drawne together for consultation; for remedy whereof our said loving subjects of the several colonies aforesaid have been humble suitors unto us and have to that purpose offered to our royal consideration the names of certaine sage and discreet persons, & having with like humility entreated us that the said persons, or soe many of them as to us should seem good, might be added unto them and might (during our pleasure) be of our councel for the foresaid colonies of virginia; wee therefore for the better establishing, disposing, orderring and directing of the said several colonies within the degrees aforesaid, and of all such affaires, matters and things as shall touch and concerne the same, doe, by these presents signed with our hand and signe manuel and sealed with our privy seale of our realme of england, establish and ordaine that our trusty and welbeloved sir thomas challonor, knight; sir henry nevil, knight; sir fulks grevil, knight; sir john scot, knight; sir robert mansfield, knight; sir oliver cromwel, knight; sir morrice berkeley, knight; sir edward michelbourne, knight; sir thomas holcroft, knight; sir thomas smith, knight, clerk of our privy councel; sir robert kelligrew, knight; sir robert croft, knight; sir george copping, knight; sir edwyn sandys, knight; sir thomas row, knight; and sir anthony palmer, knight; nominated unto us by and on the behalfe of the said first colony; sir edward hungerford, knight; sir john mallet, knight; sir john gilbert, knight; sir thomas freale, knight; sir richard hawkings, knight; sir bartholomew mitchel, knight; edward seamour, esq.; bernard greenville, esq.; edward rogers, esq.; and matthew sutcliffe, doctor of divinity; nominated to us by and on the behalfe of the said second colony, shall together with the persons formerly named, be our councel for all matters which shall or may conduct to the aforesaid plantations or which shall happen in virginia or any the territories of america between & degrees of northerly latitude from the aequinoctial line and the islands to the several colonies limited and assigned, that is to say, the first colony from to degrees of the said latitude, and the second colony between and degrees of the said latitude. and our further will and pleasure is, and by these presents for us, our heires and successors wee doe grant unto our said councel of virginia, that they or any twelve of them att the least, for the time being, whereof six att the least to be members of one of the said colonies, and six more att the least to be members of the other colony, shall have full power and authority to ordaine, nominate, elect and choose any other person or persons att their discretion to be and to serve as officer or officers to all offices and places that shall by them be thought fitt and requisite for the businesse and affaires of our said councel and concerning the plantation or plantations aforesaid, and for the summoning, calling and assembling of the said councel together when need shall require, or for summoning and calling before the said councel any of the adventurors or others which shall passe on unto the said several colonies to inhabit or to traffick there, or any other such like officer or officers which in time shall or may be found of use, behoofe or importance unto the councel aforesaid. [and the said council or any twelve of them as is aforesaid shall have full power and authority from time to time to continue or to alter or change the said officers and to elect and appoint others in their roomes and places, to make and ordain acts and ordinances for the better ordering, disposing and marshalling of the said several colonies and the several adventurers or persons going to inhabit in the same several colonies, or of any provision or provisions for the same, or for the direction of the officers aforesaid, or for the making of them to be subordinate or under jurisdiction one of another, and to do and execute all and every of their act and things which by any our grants or letters patents heretofore made they are warranted or authorised to do or execute so as always none of the said acts and ordinances or other things be contrary or repugnant to the true intent and meaning of our said letters patents granted for the plantation of the said several colonies in virginia and territories of america as aforesaid, or contrary to the laws and statutes in this our realm of england, or in derogation of our prerogative royal. witness ourself at westminster the ninth day of march ( ) in the year of our reign of england, france and ireland the fourth, and of scotland the fortieth, &c.][ ] virginia state library, "patents, no. , - "; hening, vol. i, pp. - . [footnote : bracketed passage supplied from text in hening.] the second charter may , james, by the grace of god [king of england, scotland, france and ireland, defender of the faith, etc.] to all [to whom these presents shall come, greeting.] whereas, at the humble suite and request of sondrie oure lovinge and well disposed subjects intendinge to deduce a colonie and to make habitacion and plantacion of sondrie of oure people in that parte of america comonlie called virginia, and other part and territories in america either apperteyninge unto us or which are not actually possessed of anie christian prince or people within certaine bound and regions, wee have formerly, by oure lettres patents bearinge date the tenth of aprill in the fourth yeare of oure raigne of england, fraunce, and ireland, and the nine and thirtieth of scotland, graunted to sir thomas gates, sir george somers and others, for the more speedie accomplishment of the said plantacion and habitacion, that they shoulde devide themselves into twoe collonies--the one consistinge of divers knights, gentlemen, merchaunts and others of our cittie of london, called the first collonie; and the other of sondrie knights, gentlemen and others of the citties of bristoll, exeter, the towne of plymouth, and other places, called the seccond collonie--and have yielded and graunted maine and sondrie priviledges and liberties to each collonie for their quiet setlinge and good government therein, as by the said lettres patents more at large appeareth. nowe, forasmuch as divers and sondrie of oure lovinge subjects, as well adventurers as planters, of the said first collonie (which have alreadie engaged them selves in furtheringe the businesse of the said plantacion and doe further intende by the assistance of almightie god to prosecute the same to a happie ende) have of late ben humble suiters unto us that, in respect of their great chardeges and the adventure of manie of their lives which they have hazarded in the said discoverie and plantacion of the said countrie, wee woulde be pleased to graunt them a further enlargement and explanacion of the said graunte, priviledge and liberties, and that suche counsellors and other officers maie be appointed amonngest them to manage and direct their affaires [as] are willinge and readie to adventure with them; as also whose dwellings are not so farr remote from the cittye of london but that they maie at convenient tymes be readie at hande to give advice and assistance upon all occacions requisite. we, greatlie affectinge the effectual prosecucion and happie successe of the said plantacion and comendinge their good desires theirin, for their further encouragement in accomplishinge so excellent a worke, much pleasinge to god and profitable to oure kingdomes, doe, of oure speciall grace and certeine knowledge and meere motion, for us, oure heires and successors, give, graunt and confirme to oure trustie and welbeloved subjects, robert, earle of salisburie [salisbury][ ] thomas, earle of suffolke [suffolk] henrie, earle of southampton william, earle of pembroke [henrie], earle of lincolne [lincoln] henrie, earle of dorsett [dorset] thomas, earle of exeter phillipp, earle of mountgommery robert, lord vicount lisle theophilus, lord howard of walden james mountague, lord bishopp of bathe and wells edward, lord zouche thomas, lord lawarr wiliam, lord mounteagle raphe, lord ewre edmond, lord sheffeild [sheffield] grey, lord shandis [chandois] [grey], lord compton john, lord petre john, lord stanhope george, lord carew sir humfrey welde, lord mayor of london [weld] george pertie, esquire [percie] sir edward cecill, knight [cecil] sir george wharton, knight frauncis west, esquire sir william waade, knight [wade] sir henrie nevill, knight [nevil] sir thomas smithe, knight [smith] sir oliver cromwell, knight sir peter manwood, knight sir dru drurie, knight [drury] sir john scott, knight [scot] sir thomas challouer, knight [challoner] sir robert drurie, knight [drury] sir anthonye cope, knight sir horatio veere, knight [vere] sir edward conwaie, knight [conway] sir william browne [brown] sir maurice barkeley, knight [berkeley] sir roberte maunsell, knight [mansel] sir amias presou, knight [preston] sir thomas gates, knight sir anthonie ashley, knight [ashly] sir michaell sandes, knight [sandys] sir henrie carew, knight [carey] sir stephen soame, knight sir calisthenes brooke, knight sir edward michelborne, knight [michelborn] sir john racliffe, knight [ratcliffe] sir charles willmott, knight [wilmot] sir george moore, knight [moor] sir hugh wirrall, knight [wirral] sir thomas dennys, knight [dennis] sir john hollis, knight [holles] sir william godolphin, knight sir thomas monnson, knight [monson] sir thomas ridgwaie, knight [ridgwine] sir john brooke, knight sir roberte killigrew, knight sir henrie peyton, knight sir richard williamson, knight sir ferdinando weynman, knight sir william st. john, knight sir thomas holcrofte, knight [holcroft] sir john mallory, knight sir roger ashton, knight sir walter cope, knight sir richard wigmore, knight sir william cooke, knight [coke] sir herberte crofte, knight sir henrie faushawe, knight [fanshaw] sir john smith, knight sir francis wolley, knight sir edward waterhouse, knight sir henrie sekeford, knight [seekford] sir edward saudes, knight[ ] [edwin sandys] sir thomas wayneman, knight [waynam] sir john trevor, knight sir warrwick heale, knight [heele] sir robert wroth, knight sir john townnesende, knight [townsend] sir christopher perkins, knight sir daniell dun, knight sir henrie hobarte, knight [hobart] sir franncis bacon, knight sir henrie mountague, knight [montague] sir georg coppin, knight sir samuell sandes, knight [sandys] sir thomas roe, knight sir george somers, knight sir thomas freake, knight sir thomas horwell, knight [harwell] sir charles kelke, knight sir baptist hucks, knight [hicks] sir john watts, knight sir roberte carey, knight sir william romney, knight sir thomas middleton, knight sir hatton cheeke, knight sir john ogle, knighte sir cavallero meycot, knight sir stephen riddlesden, knight [riddleson] sir thomas bludder, knight sir anthonie aucher, knight sir robert johnson, knight sir thomas panton, knight sir charles morgan, knight sir stephen powle, knight [pole] sir john burlacie, knight sir christofer cleane, knight [cleave] sir george hayward, knight sir thomas dane, knight [davis] sir thomas dutton, knight [sutton] sir anthonie forrest, knight [forest] sir robert payne, knight sir john digby, knight sir dudley diggs, knight [digges] sir rowland cotton, knight doctour mathewe rutcliffe [sutcliffe] doctor meddowes [meadows] doctor turner doctor poe captaine pagnam captaine jeffrey holcrofte captaine raunne [romney] captaine henrie spry captaine shelpton [shelton] captaine spark [sparks] [captain] thomas wyatt [wyat] captaine brinsley captaine william courtney captaine herbert captaine clarke captaine dewhurst captaine john blundell captaine frier [fryer] captaine lewis orwell captaine edward lloyd [loyd] captaine slingesby captaine huntley [hawley] captaine orme captaine woodhouse captaine mason captaine thomas holcroft captaine john cooke [coke] captaine hollis [holles] captaine william proude captaine henrie woodhouse captaine richard lindeley [lindesey] captaine dexter captaine william winter captaine herle [pearse] captain john bingham captaine burray captaine thomas conwey [conway] captaine rookwood captaine william lovelace captaine john ashley captaine thomas wynne captaine thomas mewtis captaine edward harwood captaine michaell evered [everard] captaine connoth [comock] captaine miles [mills] captaine pigott [pigot] captaine edward maria wingfeild [wingfield] captaine christopher newporte [newport] captaine john siclemore, alias ratcliffe [sicklemore] captaine john smith captyn john martyn [martin] captaine peter wynne captaine waldoe [waldo] captyn thomas wood captaine thomas button george bolls, esquire, sheriffe of london william crashawe, [clerk], bachelor of divinite william seabright, esquire christopher brook, esquire john bingley, esquire thomas watson, esquire richard percivall, esquire [percival] john moore, esquire hugh brooker, esquire david waterhouse, esquire [woodhouse] anthonie auther, esquier [aucher] roberte bowyer, esquire [boyer] raphe ewens, esquire zacharie jones, esquire george calvert, esquire william dobson, esquire henry reynold, esquire [reynolds] thomas walker, esquire anthonie barnars, esquire thomas sandes, esquire [sandys] henrie sand, esquire [sandys] richard sand [sandys] sonne of sir edwin sandes [sandys] william oxenbridge, esquire john moore, esquire thomas wilson, esquire john bullocke, esquire [bullock] john waller, [esquire] thomas webb jehughe robinson william brewster robert evelyn henrie dabenie [danby] richard hacklewte, minister [hackluit] john eldred, marchaunt [eldrid] william russell, marchaunt john merrick, marchaunt richard bannester, merchant [banister] charles anthonie, goldsmithe [anthony] john banck [banks] william evans richard humble robert chamberleyne, marchaunt [richard chamberlayne] thomas barber, marchaunt richard pevyrell, merchaunt [pomet] john fletcher, merchant thomas nicholls, merchant john stoak, merchaunt [stoke] gabriell archer franncis covell [covel] william bouham [bonham] edward harrison john wolstenholme nicholas salter hugh evans william barners [barnes] otho mawdett [mawdet] richard staper, marchant john elkin, marchaunt william cayse [coyse] thomas perkin, cooper humfrey ramell, cooper [humphrey james] henry jackson roberte shingleton [singleton] christopher nicholls john harper abraham chamberlaine [chamberlayne] thomas shipton thomas carpenter anthoine crewe [crew] george holman robert hill cleophas smithe [smith] raphe harrison john farmer james brearley william crosley [crosby] richard cocks [cox] john gearinge [gearing] richard strough, iremonnger [strongarm] thomas langton griffith hinton richard ironside richard deane [dean] richard turner william leveson, mercer [lawson] james chatfeilde [chatfield] edward allen [edward allen tedder] tedder roberts[ ] heldebrand sprinson [robert hildebrand sprinson] arthur mouse john gardener [gardiner] james russell [russel] richard casewell [caswell] richard evanns [evans] john hawkins richard kerrill [kerril] richard brooke mathewe scrivener, gentleman [screvener] william stallendge, gentleman [stallenge] arthure venn, gentleman saund webb, gentleman [sandys webbe] michaell phettiplace, gentleman william phetiplace, gentleman [phettiplace] ambrose brusey, gentleman [prusey] john taverner, gentleman george pretty, gentleman peter latham, gentleman thomas monnford, gentleman [montford] william cautrell, gentleman [cantrel] richard wiffine, gentleman [wiffin] raphe mooreton, gentleman [moreton] john cornellis [cornelius] martyn freeman raphe freeman andreau moore thomas white edward perkin robert offley thomas whitley george pitt [pit] roberte parkehurste [parkhurst] thomas morris peter vaulore [harloe] jeffrey duppa john gilbert william hancock mathew bromrigg [brown] francis tirrell[tyrrel] randall carter othowell smithe [smith] thomas honnyman [hamond] marten bonde, haberdasher [bond] joan mousloe [john moulsoe] roberte johnson william younge [young] john woddall [woodal] william felgate humfrey westwood richard champion henrie robinson franncis mapes william sambatch [sambach] rauley crashawe [ralegh crashaw] daniell tucker thomas grave hugh willestone thomas culpepper, of wigsell, esquire john culpepper, gentleman henrie lee josias kirton, gentleman [kerton] john porie, gentleman [pory] henrie collins george burton william atkinson thomas forrest [forest] john russell [russel] john houlte [holt] harman harrison gabriell beedell [beedel] john beedell [beedel] henrie dankes [dawkes] george scott [scot] edward fleetewood, gentleman [fleetwood] richard rogers, gentleman arthure robinson robert robinson john huntley john grey [gray] william payne william feilde [field] william wattey william webster john dingley thomas draper richard glanvile [glanvil] arnolde lulls [hulls] henrie rowe [roe] william moore [more] nicholas grice [gryce] james monnger [monger] nicholas andrewes [andrews] jerome haydon, iremonnger [jeremy haydon] phillipp durrant [philip durette] john quales [quarles] john west mathew springeham [springham] john johnson christopher hore george barkeley thomas sued [snead] george barkeley [berkeley] arthure pett [pet] thomas careles william barkley [berkley] thomas johnson alexander bent [bents] captaine william kinge [king] george sandes, gentleman [sandys] james white, gentleman edmond wynn [wynne] charles towler richard reynold edward webb richard maplesden thomas levers [lever] david bourne thomas wood raphe hamer edward barnes, mercer john wright, mercer robert middleton edward litsfeild [littlefield] katherine west thomas webb [web] raphe kinge [king] roberte coppine [coppin] james askewe christopher nicholls [christopher holt] william bardwell alexander childe [chiles] lewes tate edward ditchfeilde [ditchfield] james swifte richard widdowes, goldesmith edmonde brundell[ ] [brudenell] john hanford [hansford] edward wooller william palmer, haberdasher john badger john hodgson peter monnsill [mounsel] john carrill [carril] john busbridge [bushridge] william dunn [dun] thomas johnson nicholas benson thomas shipton nathaniell wade randoll wettwood [wetwood] mathew dequester charles hawkins hugh hamersley abraham cartwright george bennett [bennet] william cattor [cater] richard goddart henrie cromwell phinees pett [pet] roberte cooper[ ] henrie neite [newce] edward wilks [wilkes] roberte bateman nicholas farrar john newhouse john cason thomas harris, gentleman george etheridge, gentleman thomas mayle, gentleman richard stratford [stafford] thomas richard cooper john westrowe [westrow] edward welshe [welch] thomas brittanie [britain] thomas knowls [knowles] octavian thorne edmonde smyth [smith] john march edward carew thomas pleydall richard lea [let] miles palmer henrie price john josua, gentleman [joshua] william clawday [clauday] jerome pearsye john bree, gentleman william hampson christopher pickford thomas hunt thomas truston christopher lanman [salmon] john haward, clerke [howard] richarde partridge allen cotton [cassen] felix wilson thomas colethurst [bathurst] george wilmer andrew wilmer morrice lewellin thomas jedwin [godwin] peter burgoyne thomas burgoyne roberte burgoyne roberte smithe, merchauntaylor [smith] edward cage, grocer thomas canon, gentleman [cannon] william welby, stacioner clement wilmer, gentleman john clapham, gentleman giles fraunces, gentleman [francis] george walker, sadler john swinehowe, stacioner [swinhow] edward bushoppe, stacioner [bishop] leonard white, gentleman christopher barron [baron] peter benson richard smyth [smith] george prockter, minister [proctor] millicent ramesden, widowe [ramsdent] joseph soane thomas hinshawe [hinshaw] john baker robert thorneton [thornton] john davies [davis] edward facett [facet] george nuce, gentleman [newce] john robinson captaine thomas wood william browne, shoemaker [brown] roberte barker, shoemaker roberte penington [pennington] francis burley, minister william quick, grocer edward lewes, grocer [lewis] laurence campe, draper aden perkins, grocer richard shepparde, preacher [shepherd] william sheckley, haberdasher [sherley] william tayler, haberdasher [taylor] edward lukyn, gentleman [edwin lukin] john francklyn, haberdasher [franklyn] john southicke [southwick] peter peate george johan, iremonnger george yardley, gentleman [yeardley] henrie shelly [shelley] john pratt [prat] thomas church, draper william powell, gentleman [powel] richard frithe, gentleman [frith] thomas wheeler, draper franncis hasilerigg, gentleman [haselrig] hughe shippley, gentleman [shipley] john andrewes, thelder, [doctor], of cambridge [andrews] franncis whistley, gentleman [whistler] john vassall, gentleman richard howle edward barkeley, gentleman [berkeley] richard knerisborough, gentleman [keneridgburg] nicholas exton, draper william bennett, fishmonger [bennet] james hawood, marchaunt [haywood] nicholas isaak, merchaunt [isaac] william gibbs, merchannt [william] bushopp [bishop] barnard michell [mitchel] isaake michell [isaac mitchel] john streat [streate] edward gall john marten, gentleman [martin] thomas fox luke lodge john woodleefe, gentleman [woodliffe] rice webb [richard] vincent lowe [low] samuell burnam [burnham] edmonde pears, haberdasher josua goudge [john googe] john st. john edwarde vaughan william dunn thomas alcock [alcocke] john andrewes, the younger, of cambridge [andrews] samuell smithe [smith] thomas jerrard [gerrard] thomas whittingham william cannynge [canning] paule caminge [canning] george chaudler [chandler] henrye vincent thomas ketley james skelton james montain [mountaine] george webb, gentleman josephe newbroughesmith [joseph newbridge, smith] josias mande [mand] raphe haman, the younger [hamer] edward brewster, the sonne of william brewster leonard harwood, mercer phillipp druerdent william carpenter tristram hill roberte cock, grocer laurence grene, grocer [greene] daniell winche, grocer [samuel winch] humfrey stile, grocer averie dransfeild, grocer [dransfield] edwarde hodges, grocer edward beale, grocer[ ] raphe busby, grocer[ ] john whittingham, grocer john hide, grocer mathew shipperd, grocer [shepherd] thomas allen, grocer richard hooker, grocer laurence munckas, grocer [munks] john tanner, grocer peter gate, grocer john blunt, grocer[ ] roberte berrisford, grocer[ ] thomas wells, gentleman[ ] john ellis, grocer henrie colthurst, grocer john cranage, grocer [cavady] thomas jenings, grocer [jennings] edmond peshall, grocer [pashall] timothie bathurst, grocer gyles parslowe, grocer[ ] [parslow] roberte johnson, grocer [richard] william janson, vintener [johnson] ezechiell smith richard murrettone [martin] william sharpe roberte ritche [rich] william stannerd, inholder [stannard] john stocken william strachey, gentleman george farmer, gentleman thomas gypes, clothworker abraham dawes, gentleman [davies] thomas brockett, gentleman [brocket] george bathe, fishmonger [bache] john dike, fishmonger henrie spranger richard farringdon [farrington] chistopher vertue, vintener thomas baley, vintener [bayley] george robins, vintener tobias hinson, grocer urian spencer [vrian] clement chachelley [chicheley] john searpe, gentleman [scarpe] james cambell, iremonnger [campbell] christopher clitherowe, iremonnger [clitheroe] phillipp jacobson peter jacobson, of andwarpe william barckley [berkeley] miles banck, cutler [banks] peter highley, grocer [higgons] henrie john, gentleman john stoakley, merchauntailor [stokeley] the companie of mercers the companie of grocers the companie of drapers the company of fishmongers the companie of gouldsmithes the companie of skynners the companie merchauntailors the companie of haberdashers the companie of salters the companie of iremongers the companie of vintners the companie of clothworkers the companie of dyers the companie of bruers the companie of lethersellers the companie of pewterers the companie of cutlers the companie of whitebakers the companie of waxchaundlers the companie of tallowe chaundlers the companie of armorers the companie of girdlers the companie of butchers the companie of sadlers the companie of carpenters the companie of cordwayners the companie of barbor chirurgions the companie of painter stayners the companie of curriers the companie of masons the companie of plumbers the companie of inholders the companie of founders the companie of poulterers the companie of cookes the companie of coopers the companie of tylers and bricklayers the companie of bowyers the companie of fletchers the companie of blacksmithes the companie of joyners the companie of weavers the companie of wollmen the companie of woodmonngers the companie of scrivenors the companie of fruterers the companie of plasterers the companie of brownebakers the companie of stacioners the companie of imbroderers the companie of upholsters the companie of musicions the companie of turners[ ] the companie of baskettmakers the companie of glasiers john levett, merchaunt [levet] thomas nornicott, clothworker [nornicot] richard venn, haberdasher thomas scott, gentleman [scot] thomas juxson, merchauntaylor [juxon] george hankinson thomas leeyer, gentleman [seyer] mathew cooper george butler, gentleman thomas lawson, gentleman edward smith, haberdasher stephen sparrowe john jones, merchaunt [john] reynold, brewer [reynolds] thomas plummer, merchaunt james duppa, bruer rowland coytemore [coitmore] william sotherne [southerne] george whittmoore, haberdasher [whitmore] anthonie gosoulde, the younger [gosnold] john allen, fishemonger symonde yeomans, fishmonger [simon] launcelot davis, gentleman john hopkins, an alderman of bristoll john kettlebye, gentleman [kettleby] richard chene, gouldsmithe [clene] george hooker, gentleman roberte shevinge, yeoman [chening] [footnote : all names in brackets supplied from text in stith.] [footnote : stith's footnote: "the adventurers names are vastly confused and different in the different m. s. copies of this charter. i chose the two fairest and most correct copies, that i met with, to transcribe from; and altho' they both agree in writing this name, sir _edward sands_, or _sandis_, yet they are both certainly wrong, as might be easily proved, were it worth while, and would not be too tedious. i was also much puzzled to adjust and set right others of the names; and altho' i was at no small pains in collating the copies, and in consulting and referring to other ancient letters patents and papers, yet i will not affirm that i am not often mistaken. but however erroneous and perplexed the names of the adventurers may be, yet i found the main body, and material parts of the charter, very clear, full, and correct."] [footnote : omitted from stith.] [footnote : between this name and that following stith adds: "edward burwell."] [footnote : between this name and that following stith adds: "john cooper."] [footnote : between this name and that following stith adds: "thomas culler, grocer."] [footnote : name given twice in p. r. o. transcript.] [footnote : between this name and that following stith adds: "robert phips, grocer."] [footnote : name given twice in p. r. o. transcript.] [footnote : stith reads: "thomas wells, grocer."] [footnote : between this name and that following stith adds: "robert milmay, grocer."] [footnote : following this stith adds: "the company of gardiners."] and to such and so manie as they doe or shall hereafter admitt to be joyned with them, in forme hereafter in theis presentes expressed, whether they goe in their persons to be planters there in the said plantacion, or whether they goe not, but doe adventure their monyes, goods or chattels, that they shalbe one bodie or communaltie perpetuall and shall have perpetual succession and one common seale to serve for the saide bodie or communaltie; and that they and their successors shalbe knowne, called and incorporated by the name of the tresorer and companie of adventurers and planters of the citty of london for the firste collonie in virginia. and that they and their successors shalbe from hensforth, forever enabled to take, acquire and purchase, by the name aforesaid (licens for the same from us, oure heires or successors first had and obtained) anie manner of lands, tenements and hereditaments, goods and chattels, within oure realme of england and dominion of wales; and that they and their successors shalbe likewise enabled, by the name aforesaid, to pleade and to be impleaded before anie of oure judges or justices, in anie oure courts, and in anie accions or suits whatsoever. and wee doe also, of oure said speciall grace, certaine knowledge and mere mocion, give, grannte and confirme unto the said tresorer and companie, and their successors, under the reservacions, limittacions and declaracions hereafter expressed, all those lands, countries and territories scituat, lieinge and beinge in that place of america called virginia, from the pointe of lande called cape or pointe comfort all alonge the seacoste to the northward twoe hundred miles and from the said pointe of cape comfort all alonge the sea coast to the southward twoe hundred miles; and all that space and circuit of lande lieinge from the sea coaste of the precinct aforesaid upp unto the lande, throughoute, from sea to sea, west and northwest; and also all the island beinge within one hundred miles alonge the coaste of bothe seas of the precincte aforesaid; togeather with all the soiles, groundes, havens and portes, mynes, aswell royall mynes of golde and silver as other mineralls, pearles and precious stones, quarries, woods, rivers, waters, fishings, comodities, jurisdictions, royalties, priviledges, franchisies and preheminences within the said territorie and the precincts there of whatsoever; and thereto or there abouts, both by sea and lande, beinge or in anie sorte belonginge or appertayninge, and which wee by oure lettres patents maie or cann graunte; and in as ample manner and sorte as wee or anie oure noble progenitors have heretofore graunted to anie companie, bodie pollitique or corporate, or to anie adventurer or adventurers, undertaker or undertakers, of anie discoveries, plantacions or traffique of, in, or into anie forraine parts whatsoever; and in as large and ample manner as if the same were herin particulerly mentioned and expressed: to have, houlde, possesse and enjoye all and singuler the said landes, countries and territories with all and singuler other the premisses heretofore by theis [presents] graunted or mencioned to be grannted, to them, the said tresorer and companie, their successors and assignes, forever; to the sole and proper use of them, the said tresorer and companie, their successors and assignes [forever], to be holden of us, oure heires and successors, as of oure mannour of estgreenewich, in free and common socage and not in capite; yeldinge and payinge, therefore, to us, oure heires and successors, the fifte parte onlie of all oare of gould and silver that from tyme to time, and at all times hereafter, shalbe there gotton, had and obtained, for all manner of service. and, nevertheles, oure will and pleasure is, and wee doe by theis presentes chardge, commannde, warrant and auctorize, that the said tresorer and companie and their successors, or the major parte of them which shall be present and assembled for that purpose, shall from time to time under their common seale distribute, convey, assigne and set over such particuler porcions of lands, tenements and hereditaments, by theise presents formerly grannted, unto such oure lovinge subjects naturallie borne of denizens, or others, aswell adventurers as planters, as by the said companie, upon a commission of survey and distribucion executed and retourned for that purpose, shalbe named, appointed and allowed, wherein oure will and pleasure is, that respect be had as well of the proporcion of the adventure[r] as to the speciall service, hazarde, exploite or meritt of anie person so as to be recompenced, advannced or rewarded. and for as muche as the good and prosperous successe of the said plantacion cannot but cheiflie depende, next under the blessinge of god and the supporte of oure royall aucthoritie, upon the provident and good direccion of the whole enterprise by a carefull and understandinge counsell, and that it is not convenient that all the adventurers shalbe so often drawne to meete and assemble as shalbe requisite for them to have metings and conference aboute theire affaires, therefore we doe ordaine, establishe and confirme that there shalbe perpetually one counsell here resident, accordinge to the tenor of oure former lettres patents, which counsell shall have a seale for the better governement and administracion of the said plantacion besides the legall seale of the companie or corporacion, as in oure former lettres patents is also expressed. and further wee establishe and ordaine that henrie, earl of southampton william, earl of pembrooke henrie, earl of lincoln thomas, earl of exeter roberte, lord viscounte lisle lord theophilus howard james, lord bishopp of bathe and wells edward, lord zouche thomas, lord laware william, lord mounteagle edmunde, lord sheffeilde grey, lord shanndoys [chandois][ ] john, lord stanhope george, lord carew sir humfrey welde, lord mayor of london sir edward cecil sir william waad [wade] sir henrie nevill sir thomas smith sir oliver cromwell sir peter manwood sir thomas challoner sir henrie hovarte [hobart] sir franncis bacon sir george coppin sir john scott sir henrie carey sir roberte drurie [drury] sir horatio vere sir eward conwaye [conway] sir maurice berkeley [barkeley] sir thomas gates sir michaele sands [sandys] sir roberte mansfeild [mansel] sir john trevor sir amyas preston sir william godolphin sir walter cope sir robert killigrewe sir henrie faushawe [fanshaw] sir edwyn sandes [sandys] sir john watts sir henrie montague sir william romney sir thomas roe sir baptiste hicks sir richard williamson sir stephen powle [poole] sir dudley diggs christopher brooke, [esq.] john eldred, and john wolstenholme shalbe oure counsell for the said companie of adventurers and planters in virginia. [footnote : all names in brackets are taken from the text in stith.] and the said sir thomas smith wee ordaine to be tresorer of the said companie, which tresorer shall have aucthoritie to give order for the warninge of the counsell and sommoninge the companie to their courts and meetings. and the said counsell and tresorer or anie of them shalbe from henceforth nominated, chosen, contynued, displaced, chaunged, altered and supplied, as death or other severall occasions shall require, out of the companie of the said adventurers by the voice of the greater parte of the said counsell and adventurers in their assemblie for that purpose; provided alwaies that everie councellor so newlie elected shalbe presented to the lord channcellor of england, or to the lord highe treasurer of england, or the lord chambleyne of the housholde of us, oure heires and successors, for the tyme beinge to take his oathe of a counsellor to us, oure heires and successors, for the said companie and collonie in virginia. and wee doe by theis presents, of oure especiall grace, certaine knowledge and meere motion, for us, oure heires and successors, grannte unto the said tresorer and companie and their successors, that if it happen at anie time or times the tresorer for the tyme beinge to be sick, or to have anie such cause of absente from the cittie of london as shalbe allowed by the said counsell or the greater parte of them assembled, so as he cannot attende the affaires of that companie, in everie such case it shall and maie be lawfull for such tresorer for the tyme beinge to assigne, constitute and appointe one of the counsell for companie to be likewise allowed by the counsell or the greater parte of them assembled to be the deputie tresorer for the said companie; which deputie shall have power to doe and execute all things which belonge to the said tresorer duringe such tyme as such tresorer shalbe sick or otherwise absent, upon cause allowed of by the said counsell or the major parte of them as aforesaid, so fullie and wholie and in as large and ample manner and forme and to all intents and purposes as the said tresorer if he were present himselfe maie or might doe and execute the same. and further of oure especiall grace, certaine knowledge and meere mocion, for us, oure heires and successors, wee doe by theis presents give and grannt full power and aucthoritie to oure said counsell here resident aswell at this present tyme as hereafter, from time to time, to nominate, make, constitute, ordaine and confirme by such name or names, stile or stiles as to them shall seeme good, and likewise to revoke, dischardge, channge and alter aswell all and singuler governors, oficers and ministers which alreadie hath ben made, as also which hereafter shalbe by them thought fitt and meedefull to be made or used for the government of the said colonie and plantacion. and also to make, ordaine and establishe all manner of orders, lawes, directions, instructions, formes and ceremonies of government and magistracie, fitt and necessarie, for and concerninge the government of the said colonie and plantacion; and the same att all tymes hereafter to abrogate, revoke or chaunge, not onely within the precincts of the said colonie but also upon the seas in goeing and cominge to and from the said collonie, as they in their good discrecions shall thinke to be fittest for [the] good of the adventurers and inhabiters there. and we doe also declare that for divers reasons and consideracions us thereunto especiallie moving, oure will and pleasure is and wee doe hereby ordaine that imediatlie from and after such time as anie such governour or principall officer so to be nominated and appointed by oure said counsell for the governement of the said colonie, as aforesaid, shall arive in virginia and give notice unto the collonie there resident of oure pleasure in this behalfe, the government, power and aucthority of the president and counsell, heretofore by oure former lettres patents there established, and all lawes and constitucions by them formerlie made, shall utterly cease and be determined; and all officers, governours and ministers formerly constituted or appointed shalbe dischardged, anie thinge in oure said former lettres patents conserninge the said plantacion contayned in aniewise to the contrarie notwithstandinge; streightlie chardginge and commaundinge the president and counsell nowe resident in the said collonie upon their alleadgiance after knowledge given unto them of oure will and pleasure by theis presentes signified and declared, that they forth with be obedient to such governor or governers as by oure said counsell here resident shalbe named and appointed as aforesaid; and to all direccions, orders and commandements which they shall receive from them, aswell in the present resigninge and giveinge upp of their aucthoritie, offices, chardg and places, as in all other attendannce as shalbe by them from time to time required. and wee doe further by theis presentes ordaine and establishe that the said tresorer and counsell here resident, and their successors or anie fower of them assembled (the tresorer beinge one), shall from time to time have full power and aucthoritie to admitt and receive anie other person into their companie, corporacion and freedome; and further, in a generall assemblie of the adventurers, with the consent of the greater parte upon good cause, to disfranchise and putt oute anie person or persons oute of the said fredome and companie. and wee doe also grannt and confirme for us, oure heires and successors that it shalbe lawfull for the said tresorer and companie and their successors, by direccion of the governors there, to digg and to serche for all manner of mynes of goulde, silver, copper, iron, leade, tinne and other mineralls aswell within the precincts aforesaid as within anie parte of the maine lande not formerly graunted to anie other; and to have and enjoye the gould, silver, copper, iron, leade, and tinn, and all other mineralls to be gotten thereby, to the use and behoofe of the said companie of planters and adventurers, yeldinge therefore and payinge yerelie unto us, oure heires and successors, as aforesaid. and wee doe further of oure speciall grace, certaine knowledge and meere motion, for us, oure heires and successors, grannt, by theis presents to and withe the said tresorer and companie and their successors, that it shalbe lawfull and free for them and their assignes at all and everie time and times here after, oute of oure realme of england and oute of all other [our] dominions, to take and leade into the said voyage, and for and towards the said plantacion, and to travell thitherwards and to abide and inhabite therein the said colonie and plantacion, all such and so manie of oure lovinge subjects, or anie other straungers that wilbecomme oure lovinge subjects and live under oure allegiance, as shall willinglie accompanie them in the said voyadge and plantation with sufficient shippinge, armour, weapons, ordinannce, municion, powder, shott, victualls, and such merchaundize or wares as are esteemed by the wilde people in those parts, clothinge, implements, furnitures, catle, horses and mares, and all other thinges necessarie for the said plantation and for their use and defence and trade with the people there, and in passinge and retourninge to and from without yeldinge or payinge subsedie, custome, imposicion, or anie other taxe or duties to us, oure heires or successors, for the space of seaven yeares from the date of theis presents; provided, that none of the said persons be such as shalbe hereafter by speciall name restrained by us, oure heires or successors. and for their further encouragement, of oure speciall grace and favour, wee doe by theis present for us, oure heires and successors, yeild and graunte to and with the said tresorer and companie and their successors and everie of them, their factors and assignes, that they and every of them shalbe free and quiett of all subsedies and customes in virginia for the space of one and twentie yeres, and from all taxes and imposicions for ever, upon anie goods or merchaundizes at anie time or times hereafter, either upon importation thither or exportation from thence into oure realme of england or into anie other of oure [realms or] dominions, by the said tresorer and companie and their successors, their deputies, factors [or] assignes or anie of them, except onlie the five pound per centum due for custome upon all such good and merchanndizes as shalbe brought or imported into oure realme of england or anie other of theis oure dominions accordinge to the auncient trade of merchannts, which five poundes per centum onely beinge paid, it shalbe thensforth lawfull and free for the said adventurers the same goods [and] merchaundizes to export and carrie oute of oure said dominions into forraine partes without anie custome, taxe or other duty to be paide to us, oure heires or successors or to anie other oure officers or deputies; provided, that the saide goods and merchaundizes be shipped out within thirteene monethes after their first landinge within anie parte of those dominions. and wee doe also confirme and grannt to the said tresorer and companie, and their successors, as also to all and everie such governer or other officers and ministers as by oure said counsell shalbe appointed, to have power and aucthoritie of governement and commannd in or over the said colonie or plantacion; that they and everie of them shall and lawfullie maie from tyme to tyme and at all tymes forever hereafter, for their severall defence and safetie, enconnter, expulse, repell and resist by force and armes, aswell by sea as by land, and all waies and meanes whatsoever, all and everie such person and persons whatsoever as without the speciall licens of the said tresorer and companie and their successors shall attempte to inhabite within the said severall precincts and lymitts of the said colonie and plantacion; and also, all and everie such person and persons whatsoever as shall enterprise, or attempte at anie time hereafter, destruccion, invasion, hurte, detriment or annoyannce to the said collonye and plantacion, as is likewise specified in the said former grannte. and that it shalbe lawful for the said tresorer and companie, and their successors and everie of them, from time to time and at all times hereafter, and they shall have full power and aucthoritie, to take and surprise by all waies and meanes whatsoever all and everie person and persons whatsoever, with their shippes, goods and other furniture, traffiquinge in anie harbor, creeke or place within the limitts or precincts of the said colonie and plantacion, [not] beinge[ ] allowed by the said companie to be adventurers or planters of the said colonie, untill such time as they beinge of anie realmes or dominions under oure obedience shall paie or agree to paie, to the hands of the tresorer or [of] some other officer deputed by the said governors in virginia (over and above such subsedie and custome as the said companie is or here after shalbe to paie) five poundes per centum upon all goods and merchaundizes soe brought in thither, and also five per centum upon all goods by them shipped oute from thence; and being straungers and not under oure obedience untill they have payed (over and above such subsedie and custome as the same tresorer and companie and their successors is or hereafter shalbe to paie) tenn pounds per centum upon all such goods, likewise carried in and oute, any thinge in the former lettres patents to the contrarie not withstandinge; and the same sommes of monie and benefitt as aforesaid for and duringe the space of one and twentie yeares shalbe wholie imploied to the benefitt and behoof of the said colonie and plantacion; and after the saide one and twentie yeares ended, the same shalbe taken to the use of us, oure heires or successors, by such officer and minister as by us, oure heires or successors, shalbe thereunto assigned and appointed, as is specified in the said former lettres patents. [footnote : stith's footnote: "it is _and being_ in the original; but the sense carried me so clearly to it, that i ventured to make this correction, letting the reader at the same time know it."] also wee doe, for us, oure heires and successors, declare by theis presents, that all and everie the persons beinge oure subjects which shall goe and inhabit within the said colonye and plantacion, and everie of their children and posteritie which shall happen to be borne within [any] the lymitts thereof, shall have [and] enjoye all liberties, franchesies and immunities of free denizens and naturall subjects within anie of oure other dominions to all intents and purposes as if they had bine abidinge and borne within this oure kingdome of england or in anie other of oure dominions. and forasmuch as it shalbe necessarie for all such our lovinge subjects as shall inhabitt within the said precincts of virginia aforesaid to determine to live togither in the feare and true woorshipp of almightie god, christian peace and civill quietnes, each with other, whereby everie one maie with more safety, pleasure and profitt enjoye that where unto they shall attaine with great paine and perill, wee, for us, oure heires and successors, are likewise pleased and contented and by theis presents doe give and graunte unto the said tresorer and companie and their successors and to such governors, officers and ministers as shalbe, by oure said councell, constituted and appointed, accordinge to the natures and lymitts of their offices and places respectively, that they shall and maie from time to time for ever hereafter, within the said precincts of virginia or in the waie by the seas thither and from thence, have full and absolute power and aucthority to correct, punishe, pardon, governe and rule all such the subjects of us, oure heires and successors as shall from time to time adventure themselves in anie voiadge thither or that shall at anie tyme hereafter inhabitt in the precincts and territorie of the said colonie as aforesaid, accordinge to such order, ordinaunces, constitution, directions and instruccions as by oure said counsell, as aforesaid, shalbe established; and in defect thereof, in case of necessitie according to the good discretions of the said governours and officers respectively, aswell in cases capitall and criminall as civill, both marine and other, so alwaies as the said statuts, ordinannces and proceedinges as neere as convenientlie maie be, be agreable to the lawes, statutes, government and pollicie of this oure realme of england. and we doe further of oure speciall grace, certeine knowledge and mere mocion, grant, declare and ordaine that such principall governour as from time to time shall dulie and lawfullie be aucthorised and appointed, in manner and forme in theis presents heretofore expressed, shall [have] full power and aucthoritie to use and exercise marshall lawe in cases of rebellion or mutiny in as large and ample manner as oure leiutenant in oure counties within oure realme of england have or ought to have by force of their comissions of lieutenancy. and furthermore, if anie person or persons, adventurers or planters, of the said colonie, or anie other at anie time or times hereafter, shall transporte anie monyes, goods or marchaundizes oute of anie [of] oure kingdomes with a pretence or purpose to lande, sell or otherwise dispose the same within the lymitts and bounds of the said collonie, and yet nevertheles beinge at sea or after he hath landed within anie part of the said colonie shall carrie the same into anie other forraine countrie, with a purpose there to sell and dispose there of that, then all the goods and chattels of the said person or persons so offendinge and transported, together with the shipp or vessell wherein such transportacion was made, shalbe forfeited to us, oure heires and successors. and further, oure will and pleasure is, that in all questions and doubts that shall arrise upon anie difficultie of construccion or interpretacion of anie thinge contained either in this or in oure said former lettres patents, the same shalbe taken and interpreted in most ample and beneficiall manner for the said tresorer and companie and their successors and everie member there of. and further, wee doe by theis presents ratifie and confirme unto the said tresorer and companie and their successors all privuleges, franchesies, liberties and immunties graunted in oure said former lettres patents and not in theis oure lettres patents revoked, altered, channged or abridged. and finallie, oure will and pleasure is and wee doe further hereby for us, oure heires and successors grannte and agree, to and with the said tresorer and companie and their successors, that all and singuler person and persons which shall at anie time or times hereafter adventure anie somme or sommes of money in and towards the said plantacion of the said colonie in virginia and shalbe admitted by the said counsell and companie as adventurers of the said colonie, in forme aforesaid, and shalbe enrolled in the booke or record of the adventurers of the said companye, shall and maie be accompted, accepted, taken, helde and reputed adventurers of the said collonie and shall and maie enjoye all and singuler grannts, priviledges, liberties, benefitts, profitts, commodities [and immunities], advantages and emoluments whatsoever as fullie, largely, amplie and absolutely as if they and everie of them had ben precisely, plainely, singulerly and distinctly named and inserted in theis oure lettres patents. and lastely, because the principall effect which wee cann desier or expect of this action is the conversion and reduccion of the people in those partes unto the true worshipp of god and christian religion, in which respect wee would be lothe that anie person should be permitted to passe that wee suspected to affect the superstitions of the churche of rome, wee doe hereby declare that it is oure will and pleasure that none be permitted to passe in anie voiadge from time to time to be made into the saide countrie but such as firste shall have taken the oath of supremacie, for which purpose wee doe by theise presents give full power and aucthoritie to the tresorer for the time beinge, and anie three of the counsell, to tender and exhibite the said oath to all such persons as shall at anie time be sent and imploied in the said voiadge. although expresse mention [of the true yearly value or certainty of the premises, or any of them, or of any other gifts or grants, by us or any of our progenitors or predecessors, to the aforesaid treasurer and company heretofore made, in these presents is not made; or any act, statute, ordinance, provision, proclamation, or restraint, to the contrary hereof had, made, ordained, or provided, or any other thing, cause, or matter, whatsoever, in any wise notwithstanding.] in witnes whereof [we have caused these our letters to be made patent. witness ourself at westminster, the d day of may ( ) in the seventh year of our reign of england, france, and ireland, and of scotland the ****] per ipsum regem exactum. p. r. o. chancery patent rolls (c. ), , ; stith, appendix, pp. - ; hening, vol. i, pp. - . virginia council. "instruccions orders and constitucions ... to sr thomas gates knight governor of virginia" may, instructions, orders and constitucions by way of advise sett downe, declared and propounded to sir thomas gates, knight, governor of virginia and of the colony there planted and to be planted, and of all the inhabitants thereof, by us his majesties counsell for the direction of the affaires of that countrey for his better disposinge and proceedinge in the government thereof accordinge to the authority and power given unto us by virtue of his majesties lettres patents. . havinge considered the greate sufficiency and zealous affection which you, sir thomas gates, have many waies manifested unto us, and havinge therefore by our commission under our hands and seales constituted and ordained you to be the governor of virginia, wee his majesties counsell for that plantacion, have consulted and advised uppon divers instructions for your safer and more deliberate proceedinge therein; and therefore doe requier and charge you, accordinge to the comission in that behalf directed unto you, presently with all convenient speede to take the charge and of our fleete consistinge of eight good shippes and one pinnace and of sixe hundred land men to be transported under your commaund, and with the first winde to sett saile for virginia. and in your passage thither you shall not land nor touch any of the kinge of spaines his dominions quetly possessed, without the leave or licence of the governor of such place as you shal by accident or contrary windes be forced into. you shall also hold counsell with the masters and pilotts and men of the best experience what way is safest and fittest for you to take, because we hold it daungerous that you should keepe the old course of dominico and meins lest you fall into the hand of the spaniard, who may attend in that roade ready to intercept you: . when it shall please god that you have safely attained the kings river, and our porte and seate of james towne in virginia, wee advise you to call by proclamacion into some publique place, all the governors, officers, and other his majesties subjects aswell already seated there as transported with you, to whom you shall cause your commission to be directly reade, whereby significacion may be had of his majesties pleasure in establishinge you the governor of that countrey and plantacion, and the president, councell and colony there may take notice of the revocacion of that fourme of governement by the first lettres patents constituted and confirmed, and accordingly yeald due obedience unto you, their governor. . you shall demaund then and resume into your hands the former lettres pattents and all instruccions & publique instruments given or sent unto them and all bookes and records whatsoever of the generall proceedings untill this time, and dispose of them in the future accordinge to your discrecion. . beinge setled in your government, you shall call unto you, for your further advise and graver proceedinge, their principall officers and gentlemen whom we do ordaine and appointe to be of the councell and who for earliness of their undertakings and their greate paines and merits doe well deserve this honor & respect from us: sir george summers, knight, and admirall of virginia; captaine john smith, nowe president; captaine john radclif; captaine peter winne, seirjant major of the fort; mr. mathewe scrivenor, whom out of our good experience of his abilities in that kinde we doe name and appointe to be secretary of that councell; captaine john martine; captaine richard waldoe, master of the workes; captaine woode; and mr. fleetwoode, whom we assure ourselves you will use with all good respecte in their places and to whome wee expecte that you shall give such other preferrements as their former paines have deserved, and in all matters of importance we require you to call them to consultacion and to proceede therein with their advice; and wee doe give further power and authority to you, to give the oathe of counsellor to such as are now named, or any other oathe in the like case, accordinge to your direccion. provided that they shall not have, single nor together, anie bindinge or negative voice or power uppon your conclusions but doe give you full authority, uppon just occasion to sequester any of them from the execucion of any place whatsover, and to depute another thereunto untill significacion unto us be here made: . you shall have power and authority to dispose and graunte any other officer or commaunds whatsoever, either of governement or warr, except such as are already disposed of by us to any persons of rancke or merite (adventurers beings first regarded), accordinge to your discrecion and so discharge or revoke the same or to sequester any so made or constituted by us. . you shall take principall order and care for the true and reverent worship of god that his worde be duely preached and his holy sacraments administred accordinge to the constitucions of the church of england in all fundamentall pointes, and his ministers had in due observance and respecte agreeable to the dignity of their callinge. and that all atheisme, prophanes, popery, or schisme be exemplarily punished to the honor of god and to the peace and safety of his church, over which, in this tendernes and infancy, you must be especially solicitous & watchefull. . you shall, with all propensenes and diligence, endeavour the conversion of the natives to the knowledge and worship of the true god and their redeemer christ jesus, as the most pious and noble end of this plantacion, which the better to effect you must procure from them some convenient nomber of their children to be brought up in your language and manners, and if you finde it convenient, we thinke it reasonable you first remove from them their iniocasockes or priestes by a surprise of them all and detaininge them prisoners, for they are so wrapped up in the fogge and miserie of their iniquity and so tirrified with their continuall tirrany, chained under the bond of deathe unto the divell that while they live amounge them to poison and infecte them their mindes, you shall never make any great progres into this glorious worke, nor have any civill peace or concurre with them. and in case of necessity or conveniency, we pronounce it not crueltie nor breache of charity to deale more sharpely with them and to proceede even to dache [death?] with these murtherers of soules and sacrificers of god's images to the divill, referringe the consideracion of this as a waighty matter of important consequence to the circumstances of the busines and place in your discrecion. . you shall for capitall and criminal justice in case of rebellion and mutiny and in all such cases of [provident (?)] necessity, proceede by martiall lawe accordinge to your comission as of most dispatch and terror and fittest for this governement; and in all other causes of that nature as also in all matters of civill justice, you shall finde it properest and usefullest for your governement to proceede rather as a chauncelor than as a judge, rather uppon the naturall right and equity then uppon the nicenes and lettre of the lawe which perplexeth in this tender body, rather then dispatcheth all causes so that a summary and arbitrary way of justice discreetely mingled with those gravities and fourmes of magistracy as shall in your discrecion seeme aptest for you and that place, wilbe of most use both for expedicion and for example: . you shall for the more regard and respect of your place, to begett reverence to your authority and to refresh their mindes that obey the gravity of those lawes under which they were borne; at your discrecion use such fourmes and ensignes of governement as by our lettres pattents wee are enabled to grant unto you; as also the attendance of a guarde uppon your person, and in all such like cases you shall have power to make, adde or distinguishe any lawes or ordinances at your discrecion accordinge to the authority limited in your comission. . you shall, for the choice of plantacions observe two generall rulles: that you rather seeke to the sun then from it, which is under god the first cause both of health and riches; and that such places which you resolve to build and inhabite uppon have at the leaste one good outlett into the sea & fresh water to the land; that it be a dry and wholesome earth and as free from woode as possiblie you may, whereby you may have roome to discover about you and unshady ground to plant nere you. . you must in every plantacion principally provide of your owne a common graunge and storehowse of corne, besides that which you will obtaine by tribute or trade with the natives. . in the distribucion of your men accordinge to these advises and relacions which wee have receaved, we advise you to continue the plantacion at james towne with a convenient nomber of men, but not as your situacion or citty, because the place is unwholsome and but in the marish of virginia, and to keepe it onely as a fitt porte for your shippes to ride before to arive and unlade att; butt neither shall you make it your principall storehowse or magazin either of armes, victualls or goods, but because it is so accessable with shippinge that an enemy may be easily uppon you with all the provision of ordinance and municion and it is not to be expected that anie fortificacion there can endure an enemy that hath the leasure to sitt downe before it. . the place you chose for your principall residence and seate to have your catle, provisions of corne, foode, and magazin of other municion in, as your greatest strength, trust and retraite, must be removed some good distance from any navigable river, except with small boates, by which no enemy shall dare to seeke your habitacion; and if in this place some good fortificacion be made to which no ordinance can be brought by water, if you be provided of victuall, you may dispute possession till a straunger be wearied and starved. . above the over falles of the kinges river it is likely you shall finde some convenient place to this purpose whither no enemy with ease can approache nor with ordinance at all but by land, with at howe greate disadvauntage he shall seeke when he must discover and fight at once uppon straightes, in woodes, at foordes, and places of all inconveniency, is easy to be considered; besides, you shall have the commodity of the braunche of the river to bringe downe your provisions from within the land in canooes and smalle boates in the river of chechehounnack, neere unto you and not farre of another navagable outlett into the sea by the river of pamaouke. . foure dayes journey from your forte southewards is a towne called ohonahorn seated where the river of choanocki devideth it self into three braunches and falleth into the sea of rawnocke in thirtie five degrees; this place, if you seeke by indian guides from james forte to winocke by water, from thence to manqueocke, some twenty miles from thence to caththega, as much and from thence to oconahoen, you shall finde a brave and fruiteful seate every way unaccessable by a straunger enemy, much more abundant in pochon and in the grasse silke called cour del cherva and in vines, then any parte of this land knowne unto us. here we suppose, if you make your principall and cheife seate, you shall doe most safely and richely because you are in the part of the land inclined to the southe, and two of the best rivers will supply you; besides you are neere to riche copper mines of ritanoc and may passe them by one braunche of this river, and by another, peccarecamicke, where you shall finde foure of the englishe alive, left by sir walter rawely, which escaped from the slaughter of powhaton of roanocke, uppon the first arrivall of our colonie, and live under the proteccion of a wiroane called gepanocon, enemy to powhaton by whose consent you shall never recover them; one of these were worth much labour, and if you finde them not, yet seach [search?] into this countrey, it is more probable then towards the north. . these three habitations seeme enoughe for the nomber of the people nowe transported, over every one of which you must appointe a discreete commaunder that shall sett your men to severall workes accordinge to their undertakings in the bookes by which they were receaved; in every one of these there must be builte a church and a storehowse and a parte of land sett out for corne for the publique and some allotted to the care of manuringe and preparinge thereof. in buildinge your towns you shall as easily keepe decorous and order as confusion; and so you shall prepare for ornament and safety at once, for every streete may answere one another and all of them the markett place or storehowse in the midle which at the leaste must be paved and made firme and dry. . your enemies can be but of two sortes, straungers and natives; for the first, your defence must be uppon advauntage of the place and way unto it, for fortes have no other use but that a fewe men may defend and dispute their footinge with them against a greater nomber and to winne time which, if you can do, a stranger cannot longe abide where he must bringe all his releis [relief?] with him, and he shall have no way to beseidge you but by blockinge you in and plantinge between you and the sea, to which if you have two outeletts he must be very able and powerfull that can do it; to prevent this you shall build some small forte that may discry the sea neere cape comforte, and there hold a reasonable garrison and keepe alwaies watch and longe boate that may be ready to take the alarum and able to cary away our men, and munition if you shall not be able to defend it. besides it is not safe to lett any of the savages dwell betwene you and the sea least they be made guides to your enemies. to this commaunde wee desire captaine smith may be allotted aswell for his earnest desire as the greate confidence & trust that we have in his care & diligence. . the second enemy is the natives who can no way hurte you but by fire or by destroyinge your catle, or hinderinge your workes by stealth or your passages in small nombers; and in this sorte of warr there is most perill if you be not very carefull, for if they may destroy but one harvest or burne your townes in the night they will leave you naked and exposed to famine and cold, and convey themselves into wodes where revenge wilbe as difficult as unnecessary; to prevent that you must keepe good watches in the fielde and suffer none of them to come nere your corne in those daungerous seasons; and continuall centinells without the walles or uttermost defences in the night; and you must give order that your catle be kept in heards waited and attended on by some small watch or so enclosed by them selves that they destroy not your corne and other seed provisions. . for powhaton and his weroances it is clere even to reason beside our experience that he loved not our neighbourhood and therefore you may no way trust him, but if you finde it not best to make him your prisoner yet you must make him your tributary, and all other his weroances about him first to acknowledge no other lord but kinge james, and so we shall free them all from the tirrany of powhaton ... uppon them. every lord of a province shall pay you and send you into your forte where you make your cheif residence so many measures of corne at every harvest, soe many basketts of dye, so many dozens of skins, so many of his people to worke weekely, and of every thinge somewhat, accordinge to his proporcion in greatenes of territory and men; by which meanes you shall quietly drawe to your selves an annuall revenue of every commodity growinge in that countrey and this tribute payd to you, for which you shall deliver them from the exeacions of powhaton which are now burdensome, and protect and defend them from all their enemies; shall also be a meanes of clearinge much ground of wood and of reducing them to laboure and trade seinge for this rent onely they shall enjoye their howses, and the rest of their travell quietly and many other commodities and blessings of which they are yet insensible. . if you hope to winne them and to provide for your selves by trade you wilbe deceaved, for already your copper is embased by your abundance and neglect of prisinge it and they will never feede you but for feare. wherefore, if you perceave that they, uppon your landinge, fly up into the countrey and forsake their habitacion, you must seise into your custody half there corne and harvest and their weroances and all other their knowne successors at once whom, if you intreate well and educate those which are younge and to succeede in the governement in your manners and religion, their people will easily obey you and become in time civill and christian. . if you make freindship with any of these nations, as you must doe, choose to doe it with those that are farthest from you and enemies unto those amonge whom you dwell, for you shall have least occasion to have differences with them and by that meanes a suerer league of amity, and you shalbe suer of their trade partely for covetousnes and to serve their owne ends, where the copper is yett in his primary estimacion which pohaton hath hitherto engrossed and partely for feare of constrainte. monocon, to the east and head of our river, powhatons enemy; and the manahockes, to the northeast to the head of the river of moyompo in the necke of the land to the west betweene our bay and the sea; cathcatapeius, a greater weroance then he is, also his enemy to the southeast and south--he hath no freinde to the north; the masawoymekes make continuall incursions uppon him and uppon all those that inhabite the rivers of bolus and myomps and to the northwest; pocoughtuwonough infecteth him with a terrible warr. with those you may hold trade and freindeship good cheape for their emotenes [remoteness?] will prevent all offence which must needes happen betweene us and them which we are mingled with to the north. at the head bay is a large towne where is store of copper and furres called cataaneon that trade and discovery wilbe to greate purpose, if it may be setled yearely. . such trade as you shall finde necessary or profitable for you with the indians you shall endeavour to drawe them to seeke of you and to bringe their commodities into your forte, which will greatly ease the imployment of many men, and this you may bringe to passe by seeminge to make litle estimacion of trade with them and by pretendinge to be so able to consist within your selves as that you neede care for nothinge of theires, but rather that you doe them a curtesy to spare such necessaries as they want as leetle iron tooles, or copper, or the like such as are convenient for traffique; and so one officer or two in every forte, whom you must onely appointe to be truncmasters, may dispatch the whole busines of trade which els will cost you many mens laboures if you seeke it far from home. and besides these you must, by proclamacion or edicte publiquely affixed, prohibite and forbidd uppon paine or punishement of your discrecion all other persons to trade or exchange for anythinge but such as shalbe necessarie for foode or clothinge; and uppon all such commodities of yours as shall passe away from you whatsoever, you must sett prises and values under which the trunckemaster must not trade, and so you shalbe such to uphold the reputacion of your commodity and to make your traffique rich, desired and certaine; over this truncemaster there must be appointed a cape merchant or officer belonginge to the store or provision house that must deliver by booke all such things as shalbe allowed for trade and receave and take an accounte of whatsover is retourned, accordinge to the prises therein sett, and so beinge booked must store them up, to the publique use of the colony. . you must constitute and declare some sharpe lawe with a penaltie thereon to restraine the trade of any prohibited goods, especially of swordes, pikeheads, gunnes, daggers, or any thinge of iron that may be turned against you, and in case of such offence punishe severely; have also especially regard that no arte or trade tendinge to armes in any wise, as smithey, carpentry, of or such like, be taught the savages or used in their presence, as they may learne therein. . havinge deduced your colony into severall seates and plantacions that may commodiously answere and receive one another, you must devide your people into tennes, twenties, & so upwards, to every necessary worke a competent nomber, over every one of which you must appointe some man of care and [skill] in that worke to oversee them and to take daily accounte of their laboures; and you must ordaine that every overseer of such a nomber of workemen deliver once a weeke an accounte of the wholle committed to his charge [to] the cheife governor or captaine of the fourte; and that they also once a moneth make the like accounte to you or your officer and that such goodes or provisions as are advanced or gotten above expence may be receaved and entred into the capemarchantes booke and so stored and preserved to the publique use of the colony. and thus you shall both knowe howe your men are imployed, what they gett & where it is, as also the measure of your provision and wealth. . for such of your men as shall attend any worke in or nere aboute every towne, you shall doe best to lett them eate together at seasonable howers in some publique place, beinge messed by sixe or five to a messe, in which you must see there bee equality and sufficient that so they may come and retourne to their worke without any delay and have no cause to complaine of measure or to excuse their idlenes uppon the dressinge or want of diett. you may well allowe them three howers in a somers day and two in the winter, and shall call them together by ringinge of a bell and by the same worne them againe to worke; for such as attend any labouer so farre from the forte, as they cannot returne at seasonable times, there must be a steward appointed that shall oversee there diett and provision, els thoughe you give every one a reasonalbe allowance for many dayes some will eate two meales at one & soe: . you shall give especiall order to the cheif commaunder of every forte that the armes, powder and munition be well stored and looked into and that the men be disposed into severall companies for warr and captaines appointed over every fifty to traine them at convenient times and to teache them the use of their armes and weapons and they may knowe whether uppon all occasions and sudden attempts they shall repaire to find them in a readines. . you must take especiall care what relacions come into england and what lettres are written and that all thinges of that nature may be boxed up and sealed and sent to first to the councell here, accordinge to a former instruccion unto the late president in that behalf directed; and that at the arivall and retourne of every shippinge you endeavour to knowe all the particuler passages and informacions given on both sides and to advertise us accordingly. . whensoever you consult of any busines of importance, wee advise you to consider and deliberate all thinges patiently & willingly and to heare every man his oppinion and objeccion, but the resultants out of them or your owne determinacion what you intend to doe not to imparte to any whatsoever, but to such onely as shall execute it, and to them also under the sealle of your commaundement and but at the instant of their partinge from you or the execucion of your will. . next after buildinge, husbandry and manuringe the countrey for the provision of life and conveniency, wee comend unto your care foure principall waies of enrichinge the colonies and providinge returne of commodity, of which you must be very solicitouse that our fleetes come not home empty nor laden with useles marchandize. the first is discovery either of the southe seas or royall mines, in the search of both which we must referre you to the circumstances of your peace and your owne discrecion; the second is trade whereby you recover all the commodities of those countreys that ly far of and yet are accessable by water; the third is tribute, by which you shall advaunce parte of what soever the next lande can provide you can produce; the fourth is labour of your owne men in makinge wines, pitche, tarre, sope, ashes, steele, iron, pipestaves, in sowinge of hempe and flaxe, in gatheringe silke of the grasse, and providinge the worme and in fishinge for pearle, codd, sturgion, and such like. . wee require you to call before you captaine john radcliffe and one ... webbe who hath complained by peticion delivered unto you of divers injuries and insolences done unto him in the governement of the said captaine radcliffe, and accordingly to heare the cause and doe justice in it as you shall finde reason in it your owne discrecion. . whereas suite hath bine made unto us as for the retourne of richard potts, david wiffin and post ginnet, and sufficient reasons declared to move us to graunte the same which hath bine agreed unto by the councell assembled, wee require you to give them their licence to come backe by the next shippinge with such condicions or limitacions of retorne or otherwise as you shall thinke good. . whereas peticion hath bine made by the friends of john tavernor, capemarchant of the forte and store in virginia, for his retorne uppon some urgent occasion and for some time into england, we require you to licence him so to do if it be his desire when you arive there; and we doe nominate and appointe thomas wittingham into his roome and office, beinge one in whose sufficiency and honesty we have greate confidence. . there beinge one george liste, servant to john woodall and sent over by him with a chest of cheurgery sufficiently furnished, we require you to give your licence to william wilson, his fellowe, if the said george liste doe stay with you, to come backe in this passage, the better to enfourme us what medicines and drugges are fittest to be provided for the use of the colonie against the next supply. . you shall be very wary of grantinge freedomes and of givinge your sealle to any but uppon good consideracion and greate merite, least you make cheape the best way of our recompence; and in those you doe you shall give with such limitacions of retorne in reasonable time as in your discrecion shall seeme good. . if it shall please god that you should dy either in your way or in your governement (which his mercy forbid) before other order be taken by us therein, wee requier and commaund that the councell there established open a blacke boxe, marked with the figure of one and sealed with our sealle, wherein they shall finde our determinacion concerninge the successor to the governement; and do, in his majesties name, charge and commaund every person within the precincte of the colony to give and yeild due obedience to him so named and appointed accordinge unto his commission unto him, directed as they will aunswere to the contrary at their uttermost perill. . wee also requier you, the present governor & all your successors, to keepe secret to your selves, unsealed and unbroken up, all such lettres, schedules and instruments and whatsoever wee shall deliver you soe under our sealle, especially two blacke boxes with divers markes wherein are our commissions in cases of death or other vacacion of the governor untill such time as you shall find your self unlikely to live or determined to returne, uppon which occasions wee requier you that they be delivered before all the councell to be opened successively after such death or departure out of virginia of any governor. provided that in all thinges herein contained, except onely the succession, wee doe by these our lettres instruccions binde you to nothinge so strictely but that uppon due consideracion and good reason, and uppon divers circumstances of time and place wherein we cannot here conclude, you may in your discrecion departe and dissent from them and change, alter or establishe, execute and doe all ordinances or acts whatsoever that may best conducte to the glory of god, the honor of our kinge and nation to the good and perfect establishement of our colony. geven under our hands and councell sealle the day of may, in the seaventh yeare of his majesties ragne of england, fraunce & ireland and scotland the two and fortithe. kingsbury, _records of the virginia company of london_, vol. iii, pp. - . virginia council. "instructions, orders and constitucions ... to ... sir thomas west, knight, lord la warr." / (?) instructions, orders and constitucions by way of advise sett downe, declared, propounded and delivered to the right honourable sir thomas west, knight, lord la warr, lord governor and capten generall of virginea and of the colonies there planted and to be planted and of all other the inhabitants thereof, by us, his majesties counsell for the companie of adventurers and planters in virginea resident in england under the hands of some of us for the direccion of the affares of that countrey for his better disposinge and proceedinge in the government thereof, according to the authoritie and power given unto us by his majesties lettres patents in that behalf, together with a copie of certaine of the cheifest instruccions which have bene formerlie given to sir thomas gates, knight, for his direccion, which coppie we have given to his lordship to peruse and looke into but leave it to his discretion to use and put them in execution or to beare to be advised or directed by them further then in his owne discretion he shall thinke meete. we, the said councell, havinge considered the great & zealous affeccion which you, sir thomas west, knight, lord lawarr, have many wayes manifested unto us and for the furtherance and advaunceinge of the plantacion of virginea have therefore by our commission under the handes of some of us, constituted you to be lord governor and captaine generall of virginea and for your more safe and deliberate proceedinge in your goverment there, have advised, constituted & agreed uppon divers instructions followinge, vizt: . first, we require your lordship to take into your charge our fleete consistinge of three good shippes with the masters, mariners, sailors and one hundred and fiftie landmen goinge in them to be transported under your commaund with what speed conveniently you maye unto virginea and with the first winde to sett saile for that place and in your passage thither not to lande or touche uppon anye of the kinge of spaine his dominions by him quietly possessed without the licence of the governour of such place first obtained, unles by necessitie of winde and weather you shalbe forced thereunto; in which passage you shall holde councell with the masters, pilates and men of best experience what way is safest and fitt for you to take for your arrivinge in virginea. . your lordships beinge landed there, we wishe you should (with what convenientcy you may by proclamacion made) call into some publique place all the governors, officers and other his majesties subjects, aswell already seated there as transported with you, to whom you shall manifest your commission and cause it to be publiquely read to them, to the end his majesties pleasure may be knowne as alsoe our choise in establishinge your lordship governor of virginea and of the plantacion there; and that the president, counsell and colony there may take notice of our revocacion of all former kindes and formes of goverment, constituted or confirmed, and that they accordingely may yeild due obedience unto you, theire lord governor and captaine generall, at which time we holde it fitt you tender unto every of them the oath of supremacy to be by them taken whereby they shall manifest theire obedience and loyaltie to his majestie and you thereby the better assured of theire fidelities as alsoe to be the rather encouraged to comitt matter of counsell and charge unto them; att which time alsoe your lordship shall, in our opinions, doe well to give generall commaundement that all former private or publique quarels, greivancs or grudgs be from thenceforth from amongest them utterly abbandoned and forgotten and they willingly embrace peace and love as becommeth christians without discention or hindrance to the common good or quiet. . moreover, your lordship shall demaunde and resume into your hands all former commissions and all instructions and publique instruments given or sent unto them and all bookes and records whatsoever of all the proceedings untill this time and dispose of all theire offices and places in the future accordinge to your discretion; except the office of leiuetennante governor, which your lordship is by your commission to bestowe upon sir thomas gates, if he shalbe there to execute the same, and office of marshall uppon sir thomas dale, at this cominge thither, and the office of admirall upon sir george sumers, if he shalbe there, and the office of viceadmirall upon capten newport, he beinge there to supplye the said place. . your shippes beinge discharged of theire provision, we wishe that they, the seamen and soe manie others as shalbe needfull for that worke, be, with what convenient speed you may, employed to theire fishinge for sturgeons and other fish; which done we desier your lordship should make up the residue of theire fraight with divers of the best severall patternes of the land, commodities that you can gett there havinge regarde more to the goodnes and qualitie of them then to the quantity; and to retorne the said shippes for england with as quick dispatch as you may for easinge of the companie of adventurers of the charge both of wages of the said shippes, seamen and victualls which they must be att untill they retorne. . after your lordship is settled in your governement, we thinke it very behofefull that you employ soe many of your people as shalbe needfull in sowing, setting and plantinge of corne and such rootes for foode as you for your better provision, sustentacion and maintennance shall thinke meete to be planted. . as touchinge your landmen, we thinke fitt your lordship should reduce them all into severall bandes and companies of fifties or more when you thinke good and to committ the charge of them to severall officers and captaines to be exercised and trained up in martiall manner and warlike discipline. . your lordship is to take principall order and care for the true worship and service of god as by havinge the gospell preched, frequent prayers and the sacraments often administred as becommeth christians. and that such your ministers and preachers as shalbe with you be had in due respect agreable to theire dignitie and callinge and that your lordship, with the counsell of your said prechers and ministers, doe, as occasion shall be offered, proceede in punishinge of all atheisme, prophanisme, popery and scisme by exemplary punishment to the honor of god and to the peace and safety of his church over which in this tendernes and infancy your lordship must be especially solicitous and watchfull. . it is very expedient that your lordship with all diligence indeavor the conversion of the natives and savages to the knowledge and worship of the true god and theire redemer christ jesus as the most pious and noble end of this plantacion; which the better to effecte you are to procure from them some of theire children to be brought up in our language and manners and, if you finde it convenient, we thinke it necesserie you first remove from them the iniococks or priests by a surprise of them and detaninge them prisoners and in case they shalbe willfull and obstinate then to send over some three or foure of them into england, we may endevor theire conversion here. . we holde it requisite that your lordship in causes of civill justice, proceede rather as a counsellor then as a judge; that is to saie, rather uppon the right and equitie of the thinge in demaunde then uppon the nicenes and letter of the lawe, which perplexeth in this tender body rather then dispatcheth causes. soe that a summary and arbitrary way of justice, mingled with discreet formes of magistracy as shall in your discretion seeme aptest for your lordship to exercise in that place, wilbe of most use both for expedicion and example and for criminall causes, you are to deale therein according to your comission and good discretion. . that your lordship doe not permitt any shippe or vessell to trade or traffique within your precincte to carrie from thence any commodities or marchandizes without warrant brought you or sent to your lordship from the councell for the company of adventurers under the councell seale. . we doe require your lordship that with what possible speed and conveniency you may, after you are setled, you appointe a convenient number with guides and some discreete commaunder to discover northwest, south and southwest, beyonde the faulls ten or twelve dayes journey, and that assone as may be your lordship send unto us the narracion of that voyage what rivers, lakes or seas they finde or here of with the circumstanc there unto belonginge. . if sir thomas gates be there arived and sir george sommers and capten newport, or any of them, that your lordship doe give unto sir thomas gates the place or office of leiuetennant governor to your lordship duringe the time of your lordship and his abode there together, and in your lordships absence he beinge there to be your deputy and cheif generall and commaunder of the whole colonye and companie, and to rule and governe according to suche instructions as your lordship shall limitt and appointe him; and that sir george sommers may have the office of cheif admirall under your lordship and that sir ferdinando weyneman may have the office of master of the ordinance, and that capten newport may have the office of viceadmirall unto your lordship. . your lordship must take especiall care what relacions come into england and what lettres are written & that all things of that nature may be boxed up and sealed and sent first to the counsell here, accordinge to a former instruction unto the late governor in that behalf directed; and that att the arrival and retorne of every shippinge you endeavor to knowe all the particuler passages and informacions given on both sides and to advertise us accordingly. . last of all, for temporall goverment & perticuler proceedinge in your plantacion, in respect of the shortnes of time, we commende unto your lordship the copie of some of the cheifest of the old instruccions before mencioned to have bene formerly delivered to sir thomas gates, to be used or refused as you shall in your wisdome thinke fitt, neither is or meanes to tie your lordship to the stricte perfourmance of theis newe instructions but as occasion of time, place or necessetie shall requir your lordship may doe therein as shall seeme best in your owne discretion. southampton, pembroke, philip mountgomery, edward cecill, walter cope, dudly diggs, william rumney, thomas smith, robert drewrye, robert maunsell, baptist hicks, christofer brooke. the copie of the old instruccions which were formerly with others delivered to sir thomas gates, knight, att his goinge to virginea for his direccion in his goverment there, and noew are by us, his majesties councill for the companie of adventurers for virginea, given to the right honourable, the lord la warr to looke into and advise on and at his discretion to use [or] forbeare to put them in execucion. such of the old instructions which were formerly given to sir thomas gates, knight, and nowe delivered to the lord la warre, beginne att the ninth instruccion in the articles in thi booke which by waye of advise were sett down to the said sir thomas gates and soe are written ontill you come to the thirtith instruccion which th, , & instructions are not given his lordship but the th is given him, but not the nor , but the effect of the provisoe followinge is given. kingsbury, vol. iii, pp. - the third charter march , james, by the grace of god [king of england, scotland, france and ireland, defender of the faith;] to all to whom [these presents shall come,] greeting. whereas at the humble suite of divers and sundry our lovinge subjects, aswell adventurers as planters of the first colonie in virginia, and for the propagacion of christian religion and reclayminge of people barbarous to civilitie and humanitie, we have by our lettres patent bearing date at westminster the three and twentieth daie of may in the seaventh yeare of our raigne of england, frannce and ireland, and the twoe and fortieth of scotland, given and grannted unto them, that they and all suche and soe manie of our loving subjects as shold from time to time for ever after be joyned with them as planters or adventurers in the said plantacion, and their successors for ever, shold be one body politique incorporated by the name of the treasorer and planters of the cittie of london for the first colonie in virginia; and whereas allsoe for the greater good and benefitt of the said companie and for the better furnishing and establishing of the said plantacion we did further [give], grannte and confirme by our said lettres patent unto the said treasorer and companie and their successors for ever, all those landes, contries and territories scituate, lyeing and being in that part of america called virginia, from the point of land called cape [or] pointe comfort all along the seacoste to the northward twoe hundred miles, and from the said point of cape comfort all along the seacoste to the sowthward twoe hundred miles, and all the space and circuit of land lying from the sea coste of the precinct aforesaid up or into the land throughout from sea to sea, west and northwest, and allso all the islandes lying within one hundred miles along the coast of both the seas of the precinct aforsaid, with diverse other grannts, liberties, franchises, preheminences, privileges, proffitts, benefitts, and commodities, grannted in and by our said lettres patent to the said tresorer and companie, and their successors, for ever: now for asmuchas we are given to undestande that in these seas adjoyning to the said coast of virginia and without the compasse of those twoe hundred miles by us soe grannted unto the said treasurer and companie as aforesaid, and yet not farr distant from the said colony in virginia, there are or may be divers islandes lying desolate and uninhabited, some of which are already made knowne and discovered by the industry, travell, and expences of the said company, and others allsoe are supposed to be and remaine as yet unknowen and undiscovered, all and every of which itt maie importe the said colony both in safety and pollecy of trade to populate and plant, in regard where of, aswell for the preventing of perill as for the better comodity and prosperity of the said colony, they have bin humble suitors unto us that we wold be pleased to grannt unto them an inlardgement of our said former lettres patent, aswell for a more ample extent of their limitts and territories into the seas adjoyning to and uppon the coast of virginia as allsoe for some other matters and articles concerning the better government of the said company and collony, in which point our said former lettres patents doe not extende soe farre as time and experience hath found to be needfull and convenient: we, therefore, tendring the good and happy successe of the said plantacion both in respect of the generall weale of humane society as in respect of the good of our owne estate and kingedomes, and being willing to give furtherannt untoall good meanes that may advannce the benefitt of the said company and which maie secure the safety of our loving subjects, planted in our said colony under the favour and protection of god almighty and of our royall power and authority, have therefore of our especiall grace, certain knowledge and mere mocion, given, grannted and confirmed, and for us, our heires and successors we doe by theis presents, give, grannt and confirme unto the said treasurer and company of adventurers and planters of the said citty of london for the first colony in virginia, and to their heires and successors for ever, all and singuler the said iselandes [whatsoever] scituat and being in anie part of the said ocean bordering upon the coast of our said first colony in virginia and being within three hundred leagues of anie the partes hertofore grannted to the said treasorer and company in our said former lettres patents as aforesaid, and being within or betweene the one and fortie and thirty degrees of northerly latitude, together with all and singuler [soils] landes, groundes, havens, ports, rivers, waters, fishinges, mines and mineralls, aswell royal mines of gold and silver as other mines and mineralls, perles, precious stones, quarries, and all and singuler other commodities, jurisdiccions, royalties, priviledges, franchises and preheminences, both within the said tract of lande uppon the maine and allso within the said iselandes and seas adjoyning, whatsoever, and thereunto or there abouts both by sea and land being or scituat; and which, by our lettres patents, we maie or cann grannt and in as ample manner and sort as we or anie our noble progenitors have heretofore grannted to anie person or persons or to anie companie, bodie politique or corporate or to any adventurer or adventurers, undertaker or undertakers of anie discoveries, plantacions or traffique, of, in, or into anie foreigne parts whatsoever, and in as lardge and ample manner as if the same were herein particularly named, mencioned and expressed: provided allwaies that the said iselandes or anie the premisses herein mencioned and by theis presents intended and meant to be grannted be not already actually possessed or inhabited by anie other christian prince or estate, nor be within the bounds, limitts or territories of the northerne colonie, hertofore by us grannted to be planted by divers of our loving subjects in the northpartes of virginia. to have and to hold, possesse and injoie all and singuler the said iselandes in the said ocean seas soe lying and bordering uppon the coast or coasts of the territories of the said first colony in virginia as aforesaid, with all and singuler the said soiles, landes and groundes and all and singular other the premisses heretofore by theis presents grannted, or mencioned to be grannted, to them, the said treasurer and companie of adventurers and planters of the cittie of london for the first colonie in virginia, and to their heires, successors and assignes for ever, to the sole and proper use and behoofe of them, the said treasurer and companie and their heires, successores and assignes for ever; to be holden of us, our heires and successors as of our mannor of eastgreenwich, in free and common soccage and not in capite, yealding and paying therefore, to us, our heires and successors, the fifte part of the oare of all gold and silver which shalbe there gotten, had or obteined for all manner of services, whatsoever. and further our will and pleasure is, and we doe by theis presents grannt and confirme for the good and welfare of the said plantacion, and that posterity maie hereafter knowe whoe have adventured and not bin sparing of their purses in such a noble and generous accion for the generall good of theire cuntrie, and at the request and with the consent of the companie aforesaid, that our trusty and welbeloved subjects.[ ] [footnote : stith gives the following names only: "george, lord archbishop of canterbury, henry, earl of huntington, edward, earl of bedford, richard, earl of clanrickard, &c." the following names in brackets are taken from the text in brown's _genesis_.] george, lord archbishopp of canterbury gilbert, earle of shrewsberry mary, countesse of shrewesbeiry elizabeth, countesse of derby margarett, countesse of comberland henry, earle of huntingdon edward, earle of beddford lucy, countesse of bedford marie, countesse of pembroke richard, earle of clanrickard lady elizabeth graie william, lord viscount cramborne william, lord bishopp of duresme henry, lord bishopp of worceter john, lord bishopp of oxonford william, lord pagett dudley, lord north franncis, lord norries william, lord knollis john, lord harrington robert, lord spencer edward, lord denny william, lord cavendishe james, lord hay elianor, lady cave [carre] maistres elizabeth scott, widdow edward sackvill, esquier sir henry nevill, of aburgavenny, knight sir robert riche, knight sir john harrington, knight sir raphe wimwood, knight sir john graie, knight sir henry riche, knight sir henry wotton, knight peregrine berly, esquier [berty] sir edward phelipps, knight, maister of the rolls sir moile finche, knight sir thomas mansell, knight sir john st. john, knight sir richard spencer, knight sir franncis barrington, knight sir george carie of devonshire, knight sir william twisden, knight sir john leveson, knight sir thomas walsingham, knight sir edward care, knight sir arthure manwaringe, knight sir thomas jermyn, knight sir valentine knightley, knight sir john dodderidge, knight sir john hungerford, knight sir john stradling, knight sir john bourchidd, knight [bourchier] sir john bennett, knight sir samuel leonard, knight sir franncis goodwin, knight sir wareham st. legier, knight sir james scudamore, knight sir thomas mildmaie, knight sir percivall harte, knight sir percivall willoughby, knight sir franncis leigh, knight sir henry goodere, knight sir john cutt, knight sir james parrett, knight sir william craven, knight sir john sammes, knight sir carey raleigh, knight sir william maynard, knight sir edmund bowyer, knight sir william cornewallis, knight sir thomas beomont, knight sir thomas cunningsby, knight sir henry beddingfeild, knight sir david murray, knight sir william poole, knight sir william throgmorton, knight sir thomas grantham, knight sir thomas stewkley, knight sir edward heron, knight sir ralph shelten, knight sir lewes thesam, knight sir walter aston, knight sir thomas denton, knight sir ewstace hart, knight sir john ogle, knight sir thomas dale, knight sir william boulstrod, knight sir william fleetwood, knight sir john acland, knight sir john hanham, knight sir roberte meller, knight [millor] sir thomas wilford, knight sir william lower, knight sir thomas lerdes, knight [leedes] sir franncis barneham, knight sir walter chate, knight sir thomas tracy, knight sir marmaduke darrell, knight sir william harrys, knight sir thomas gerrand, knight sir peter freetchvile, knight sir richard trevor, knight sir amias bamfeild sir william smith of essex, knight sir thomas hewett, knight sir richard smith, knight sir john heyward, knight sir christopher harris, knight sir john pettus, knight sir william strode, knight sir thomas harfleet, knight sir walter vaughan, knight sir william herrick, knight sir samuell saltonstall, knight sir richard cooper, knight sir henry fane, knight sir franncis egiok, knight sir robert edolph, knight sir arthure harries, knight sir george huntley, knight sir george chute, knight sir robert leigh, knight sir richard lovelace, knight sir william lovelace, knight sir robert yaxley, knight sir franncis wortley, knight sir franncis heiborne, knight sir guy palme, knight sir richard bingley, knight sir ambrose turvill, knight sir nicholas stoddard, knight sir william gree, knight sir walter coverte, knight sir thomas eversfeild, knight sir nicholas parker, knight sir edward culpeper, knight sir william ayliffe, knight, and sir john keile, knight doctor george mountaine, dean of westminster lawrence bohan, docktor in phisick anthony hinton, doctor in phisick john pawlett arthure ingram anthony irby john weld john walter john harris anthony dyott william ravenscrofte thomas warre william hackwill lawrence hide nicholas hide thomas stevens franncis tate thomas coventry john hare robert askwith george sanndys franncis jones thomas wentworth henry cromewell john arundell john culpeper john hoskins walter fitz williams walter kirkham william roscarrock richard carmerdon edward carne thomas merry nicholas lichfeild john middleton john smithe, and thomas smith, the sonnes of sir thomas smith peter franke george gerrand gregory sprynte john drake roger puleston oliver nicholas richard nunnington [monyngton] john vaughan john evelin lamorock stradling john riddall john kettleby warren townsend lionell cranfeild edward salter william litton humfrey may george thorpe henry sandys, and edwin sandys, the sonnes of sir edwin sandys thomas conway captaine owen gwinn captaine giles hawkridge edward dyer richard connock benjamin brand richard leigh, and thomas pelham, esquiers thomas digges, and john digges, esquiers, the sonnes of sir dudley diggs, knight franncis bradley richard buckminster [buck] franncis burley john procter alexannder whitakers thomas frake, thelder, and henry freake, thelder, ministers of god's word the mayor and citizens of chichester the mayor and jurates of dover the bailiffs, burgesses and comonalty of ipswich the mayor and comunalty of lyme regis the mayor and comonalty of sandwich the wardens, assistants and companie of the trinity house thomas martin franncis smaleman augustine steward richard tomlins humfrey jobson john legate robert backley [barkley] john crowe edward backley [barkley] william flett [fleet] henry wolstenholme edmund alleyn george tucker franncis glanville thomas gouge john evelin william hall john smithe george samms john robinson william tucker john wolstenholme, and henry wolstenholme, sonnes of john wolstenholme, esquier william hodges jonathan mattall [nuttall] phinees pett captaine john kinge captaine william beck giles alington franncis heiton, and samuell holliland, gentleman richard chamberlaine george chamberlaine hewett staper humfrey handford raph freeman george twinhoe [swinhoe] richard pigott elias roberts roger harris devereux wogan edward baber william greenewell thomas stilles [shilds] nicholas hooker robert garsett thomas cordell william bright john reynold peter bartley john willett humfry smithe roger dye nicholas leate thomas wale lewes tate humfrey merrett roberte peake powell isaackson sebastian viccars jarvis mundes richard warner gresham hogan warner daniell deruley andrew troughton william barrett thomas hodges john downes richard harper thomas foxall william haselden james harrison william burrell john hodsall richard fishborne john miller edward cooke richard hall, marchaunt richard hall, ankersmith john delbridge richard francklin edmund scott john britten robert stratt edmund pond edward james robert bell richard herne william ferrers william millett anthony abdy roberte gore benjamin decrow henry tunberley [timberly] humfrey basse abraham speckart richard moorer william compton richard poulsoune [pontsonne] william wolaston john desmont, clothier [beomont] alexannder childe william fald, fishmonger franncis baldwin john jones, marchant thomas plomer edward plomer, marchants john stoickden robert tindall peter erundell ruben bourne thomas hampton, and franncis carter, citizens of london, whoe since our said last lettres patent are become adventurers and have joined themselves with the former adventurers and planters of the said companie and societie, shall from henceforth be reputed, deemed and taken to be and shalbe brethren and free members of the companie and shall and maie, respectively, and according to the proportion and value of their severall adventures, have, hold and enjoie all suche interest, right, title, priviledges, preheminences, liberties, franchises, immunities, profitts and commodities whatsoever, in as lardge, ample and beneficiall manner to all intents, construccions and purposes as anie other adventures nominated and expressed in anie our former lettres patent, or anie of them have or maie have by force and vertue of theis presents, or anie our former lettres patent whatsoever. and we are further pleased and we doe by theis presents grannt and confirm that[ ] phillipp, earle of montgomery william, lord paget sir john harrington, knight sir william cavendish, knight sir john sammes, knight sir samuell sandys, knight sir thomas freke, knight sir william st. john, knight sir richard grobham, knight sir thomas dale, knight sir cavalliero maycott, knight richard martin, esquier john bingley, esquier thomas watson, esquier, and arthure ingram, esquier, whome the said treasurer and companie have, since the said [last] lettres patent, nominated and sett downe as worthy and discreete persons fitt to serve us as counsellors, to be of our counsell for the said plantacion, shalbe reputed, deemed and taken as persons of our said councell for the said first colonie in such manner and sort to all intents and purposes as those whoe have bin formerly ellected and nominated as our counsellors for that colonie and whose names have bin or are incerted and expressed in our said former lettres patent. [footnote : stith gives the following names only: "philip, earl of mongomery, william, lord paget, sir john starrington, knt. &c."] and we doe hereby ordaine and grannt by theis presents that the said treasurer and companie of adventurers and planters, aforesaid, shall and maie, once everie weeke or oftener at their pleasure, hold and keepe a court and assembly for the better ordening [ordering] and government of the said plantacion and such thinges as shall concerne the same; and that anie five persons of the said counsell for the said first collonie in virginia, for the time being, of which companie the treasurer or his deputie allwaies to be one, and the nomber of fifteene others at the least of the generality of the said companie assembled together in such court or assembly in such manner as is and hath bin heretofore used and accustomed, shalbe said, taken, held and reputed to be and shalbe a full and sufficient court of the said companie for the handling, ordring and dispatching of all such casuall and particuler occurrences and accidentall matters of lesse consequence and waight, as shall from time to time happen, touching and concerning the said plantacion. and that, nevertheles, for the handling, ordring and disposing of matters and affaires of great waight and importance and such as shall or maie in anie sort concerne the weale publike and generall good of the said companie and plantacion as namely, the manner of government from time to time to be used, the ordring and disposing of the said possessions and the setling and establishing of a trade there, or such like, there shalbe held and kept everie yeare uppon the last wednesdaie save one of hillary, easter, trinity and michaelmas termes, for ever, one great, generall and solemne assembly, which fower severall assemblies shalbe stiled and called the fower great and generall courts of the counsell and companie of adventurers for virginia; in all and every of which said great and generall courts soe assembled our will and pleasure is and we doe, for us, our heires and successors forever, give and grannt to the said treasurer and companie and their successors for ever by theis presents, that they, the said treasurer and companie or the greater nomber of them soe assembled, shall and maie have full power and authoritie from time to time and att all times hereafter to ellect and choose discreet persons to be of our [said] counsell for the said first colonie in virginia and to nominate and appoint such officers as theie shall thinke fitt and requisit for the government, managing, ordring and dispatching of the affaires of the said companie; and shall likewise have full power and authority to ordaine and make such lawes and ordinances for the good and wellfare of the said plantacion as to them from time to time shalbe thought requisite and meete: soe allwaies as the same be not contrary to the lawes and statutes of this our realme of england; and shall in like manner have power and authority to expulse, disfranchise and putt out of and from their said companie and societie for ever all and everie such person and persons as having either promised or subscribed their names to become adventurers to the said plantacion of the said first colonie in virginia, or having bin nominated for adventurers in theis or anie our lettres patent or having bin otherwise admitted and nominated to be of the said companie, have nevertheles either not putt in anie adventure [at] all for and towards the said plantacion or els have refused and neglected, or shall refuse and neglect, to bringe in his or their adventure by word or writing promised within sixe monthes after the same shalbe soe payable and due. and wheras the failing and nonpaiment of such monies as have bin promised in adventure for the advanncement of the said plantacion hath bin often by experience found to be danngerous and prejudiciall to the same and much to have hindred the progresse and proceeding of the said plantacion; and for that itt seemeth to us a thing reasonable that such persons as by their handwriting have engaged themselves for the payment of their adventures, and afterwards neglecting their faith and promise, shold be compellable to make good and kepe the same; therefore our will and pleasure is that in anie suite or suites comenced or to be comenced in anie of our courts att westminster, or elswhere, by the said treasurer and companie or otherwise against anie such persons, that our judges for the time being both in our court of channcerie and at the common lawe doe favour and further the said suits soe farre forth as law and equitie will in anie wise suffer and permitt. and we doe, for us, our heires and successors, further give and grannt to the said tresorer and companie, and their successors for ever, that theie, the said tresorer and companie or the greater part of them for the time being, so in a full and generall court assembled as aforesaid shall and maie, from time to time and att all times hereafter, for ever, ellect, choose and permitt into their company and society anie person or persons, as well straungers and aliens borne in anie part beyond the seas wheresoever, being in amity with us, as our naturall liedge subjects borne in anie our realmes and dominions; and that all such persons soe elected, chosen and admitted to be of the said companie as aforesaid shall thereuppon be taken, reputed and held and shalbe free members of the said companie and shall have, hold and enjoie all and singuler freedoms, liberties, franchises, priviledges, immunities, benefitts, profitts and commodities, whatsoever, to the said companie in anie sort belonging or apperteining as fully, freely [and] amplie as anie other adventurer or adventurers now being, or which hereafter att anie time shalbe, of the said companie, hath, have, shall, maie, might or ought to have or enjoy the same to all intents and purposes whatsoever. and we doe further of our speciall grace, certaine knowledge and mere mocion, for us, our heires and successors, give and grantt to the said tresorer and companie and their successors, for ever by theis present, that itt shalbe lawfull and free for them and their assignes att all and everie time and times hereafter, out of anie our realmes and dominions whatsoever, to take, lead, carry and transport in and into the said voyage and for and towards the said plantacion of our said first collonie in virginia, all such and soe manie of our loving subjects or anie other straungers that will become our loving subjects and live under our allegiance as shall willingly accompanie them in the said voyage and plantacion; with shipping, armour, weapons, ordinannce, munition, powder, shott, victualls, and all manner of merchandizes and wares, and all manner of clothing, implement, furniture, beasts, cattell, horses, mares, and all other thinges necessarie for the said plantacion and for their use and defence, and for trade with the people there and in passing and retourning to and froe, without paying or yealding anie subsedie, custome or imposicion, either inward or outward, or anie other dutie to us, our heires or successors, for the same, for the space of seven yeares from the date of theis present. and we doe further, for us, our heires and successors, give and grannt to the said treasurer and companie and their successors for ever, by theis present, that the said treasurer of the said companie, or his deputie for the time being or anie twoe others of our said counsell for the said first colonie in virginia for the time being, shall and maie attall times hereafter and from time to time, have full power and authoritie to minister and give the oath and oathes of supremacie and allegiannce, or either of them, to all and every person and persons which shall, at anie time and times hereafter, goe or passe to the said colonie in virginia: and further, that itt shalbe likewise lawfull for the said tresorer, or his deputy for the time, or anie twoe others of our said counsell for the said first colonie in virginia, for the time being, from time to time and att all times hereafter, to minister such a formall oathe as by their discrescion shalbe reasonably devised, aswell unto anie person or persons imployed or to be imployed in, for, or touching the said plantacion for their honest, faithfull and just dischardge of their service in all such matters as shalbe committed unto them for the good and benefitt of the said company, colonie and plantacion; as alsoe unto such other person or persons as the said treasurer or his deputie, with twoe others of the said counsell, shall thinke meete for the examinacion or clearing of the truith in anie cause whatsoever concerninge the said plantacion or anie business from thence proceeding or there unto proceeding or thereunto belonging. and, furthermore, whereas we have ben certefied that diverse lewde and ill disposed persons, both sailors, souldiers, artificers, husbandmen, laborers, and others, having received wages, apparrell or other entertainment from the said company or having contracted and agreed with the said companie to goe, to serve, or to be imployed in the said plantacion of the said first colonie in virginia, have afterwards either withdrawen, hid or concealed themselves, or have refused to goe thither after they have bin soe entertained and agreed withall; and that divers and sundry persons allso which have bin sent and imployed in the said plantacion of the said first colonie in virginia at and upon the chardge of the said companie, and having there misbehaved themselves by mutinies, sedition, and other notorious misdemeanors, or having bin employed or sent abroad by the governor of virginia or his deputie with some ship or pinnace for provisions for the said colonie, or for some discoverie or other buisines and affaires concerning the same, have from thence most trecherouslie either come back againe and retorned into our realme of england by stelth or without licence of our governor of our said colonie in virginia for the time being, or have bin sent hither as misdoers and offenders; and that manie allsoe of those persons after their retourne from thence, having bin questioned by our said counsell here for such their misbehaviors and offences, by their insolent and contemptuous carriage in the presence of our said counsaile, have shewed little respect and reverence, either to the place or authoritie in which we have placed and appointed them; and others, for the colouring of their lewdnes and misdemeanors committed in virginia, have endeavored them by most vile and slanndrous reports made and divulged, aswell of the cuntrie of virginia as alsoe of the government and estate of the said plantacion and colonie, as much as in them laie, to bring the said voyage and plantacion into disgrace and contempt; by meanes where of not only the adventures and planters alreadie ingaged in the said plantacion have bin exceedingly abused and hindred, and a greate nomber of other our loving and welldisposed subjects otherwise well affected and inclyning to joine and adventure insoe noble, christian and worthie an action have bin discouraged from the same, but allsoe the utter overthrow and ruine of the said enterprise hath bin greatlie indanngered which cannott miscarrie without some dishonor to us and our kingdome; now, for asmuch as it appeareth unto us that theis insolences, misdemeanors and abuses, not to be tollerated in anie civill government, have for the most part growne and proceeded inregard of our counsaile have not anie direct power and authoritie by anie expresse wordes in our former lettres patent to correct and chastise such offenders, we therefore, for the more speedy reformacion of soe greate and enormous abuses and misdemeanors heretofore practised and committed, and for the preventing of the like hereafter, doe by theis present for us, our heires and successors, give and grannt to the said treasurer and companie, and their successors for ever, that itt shall and maie be lawfull for our said councell for the said first colonie in virginia or anie twoe of them, whereof the said tresorer or his deputie for the time being to be allwaies one, by warrant under their handes to send for, or cause to be apprehended, all and every such person and persons who shalbe noted or accused or found, att anie time or times here after, to offend or misbehave themselves in anie the offences before mencioned and expressed; and uppon the examinacion of anie such offender or offendors and just proofe made by oath taken before the counsaile of anie such notorious misdemeanors by them committed as aforesaid; and allsoe uppon anie insolent, contemptuous or unreverent carriage and misbehavior to or against our said counsell shewed or used by anie such person or persons soe called, convented and apearing before them as aforesaid; that in all such cases theie, our said counsell or anie twoe of them for the time being, shall and maie have full power and authoritie either here to binde them over with good suerties for their good behaviour and further therein to proceed to all intents and purposes, as itt is used in other like cases within our realme of england; or ells att their discrescion to remannd and send back the said offenders or anie of them unto the said colonie in virginia, there to be proceeded against and punished as the governor, deputie and counsell there for the time being shall thinke meete; or otherwise, according to such lawes and ordinannces as are or shalbe in use there for the well ordring and good governement of the said colonie. and, for the more effectuall advanncing of the said plantacion, we doe further, for us, our heires and successors, of our especiall grace and favour, by vertue of our prorogative royall and by the assent and consent of the lordes and others of our privie counsalle, give and grannte unto the said tresorer and companie full power and authoritie, free leave, libertie and licence to sett forth, errect and publishe one or more lotterie or lotteries to have continuance and to [endure] and be held for the space of one whole yeare next after the opening of the same, and after the end and expiracion of the said terme the said lotterie or lotteries to continue and be further kept, during our will and pleasure onely and not otherwise. and yet, nevertheles, we are contented and pleased, for the good and wellfare of the said plantacion, that the said tresorer and companie shall, for the dispatch and finishing of the said lotterie or lotteries, have six months warninge after the said yeare ended before our will and pleasure shall, for and on that behalfe, be construed, deemed and adjudged to be in anie wise altered and determined. and our further will and pleasure is that the said lottery or lottaries shall and maie be opened and held within our cittie of london or in anie other cittie or citties, or ellswheare within this our realme of england, with such prises, articles, condicions and limitacions as to them, the said tresorer and companie, in their discreascions shall seeme convenient. and that itt shall and may be lawfull to and for the said tresorer and companie to ellect and choose receivors, auditors, surveyors, comissioners, or anie other officers whatsoever, att their will and pleasure for the better marshalling and guiding and governing of the said lottarie or lottaryes; and that itt shalbe likewise lawfull to and for the said tresorer and anie twoe of the said counsell to minister unto all and everie such persons soe ellected and chosen for officers as aforesaid one or more oathes for their good behaviour, just and true dealing in and about the lottarie or lottaries to the intent and purpose that none of our loving subjects, putting in their monies or otherwise adventuring in the said generall lotterie or lottaries, maie be in anie wise defrauded and deceived of their said monies or evill and indirectlie dealt withall in their said adventures. and we further grannt in manner and forme aforesaid, that itt shall and maie be lawfull to and for the said treasurer and companie, under the scale of our counsell for the plantacion, to publishe or to cause and procure to be published by proclamacion or otherwise, the said proclamacion to be made in their name by vertue of theise present, the said lottarie or lotteries in all citties, townes, boroughts, throughfaires and other places within our said realme of england; and we will and commande all mayors, justices of peace, sheriffs, bayliffs, constables and other our officers and loving subjects whatsoever, that in noe wise theie hinder or delaie the progresse and proceeding of the said lottarie or lottaries but be therein and, touching the premisses, aiding and assisting by all honest, good and lawfull meanes and endevours. and further our will and pleasure is that in all questions and dobts that shall arise uppon anie difficultie of construccion or interpretacion of anie thing conteined in theis or anie other our former lettres patent the same shalbe taken and interpreted in most ample and beneficiall manner for the said tresorer and companie and their successors and everie member there of. and lastly we doe by theis present retifie and confirme unto the said treasorer and companie, and their successors for ever, all and all manner of priviledges, franchises, liberties, immunities, preheminences, profitts and commodities whatsoever grannted unto them in anie our [former] lettres patent and not in theis present revoked, altered, channged or abridged. although expresse mencion [of the true yearly value or certainty of the premises, or any of them, or of any other gift or grant, by us or any of our progenitors or predecessors, to the aforesaid tresurer and company heretofore made, in these presents is not made; or any statute, act, ordinance, provisions, proclamation, or restraint, to the contrary thereof heretofore made, ordained, or provided, or any other matter, cause, or thing, whatsoever, to the contrary, in any wise, notwithstanding.] in witnes whereof [we have caused these our letters to be made patents.] wittnes our selfe att westminster, the twelveth daie of march [ ] [in the ninth year of our reign of england, france, and ireland, and of scotland the five and fortieth.] per breve de privato sigillo, etc. p. r. o. chancery patent rolls (c. ), ; stith, appendix, pp. - ; hening, vol. i, pp. - . virginia company. instructions to george yeardley (sometimes called "the great charter")[ ] [footnote : there is no authority in these instructions for the governor to establish a general assembly. there is, however, evidence in the instructions to wyatt (p. ) that a "commission" was given to yeardley which granted this authority.] november , the treasurer and companie of adventurers and planters of the city of london for the first colony in virginia to captain george yeardley, elect governor of virginia, and to the council of state there being or to be, greeting: our former cares and endeavours have been chiefly bent to the procuring and sending people to plant in virginia so to prepare a way and to lay a foundation whereon a flourishing state might, in process of time by the blessing of almighty god, be raised. now our trust being that under the goverment of you, captain yeardly, with the advice and assistance of the said council of state, such public provisions of corn and cattle will again be raised as may draw on those multitudes who, in great abundance from diverse parts of the realm, were preparing to remove thither, if by the late decay of the said public store their hopes had not been made frustrate and their minds thereby clene discouraged. we have thought good to bend our present cares and consultations, according to the authority granted unto us from his majesty under his great seal, to the setling there of a laudable form of government by majestracy and just laws for the happy guiding and governing of the people there inhabiting, like as we have already done for the well ordering of our courts here and of our officers and accions for the behoof of that plantation. and because our intent is to ease all the inhabitants of virginia forever of all taxes and public burthens, as much as may be, and to take away all occasion of oppression and corruption, we have thought fit to begin (according to the laudable example of the most famous common wealthes both past and present) to alot and lay out a convenient portion of public lands for the maintenance and support as well of magistracy and officers as of other public charges both here and there from time to time arising. we, therefore, the said treasurer and company, upon a solemn treaty and resolution and with the advice, consent and assent of his majesties council here of virginia, being assembled in a great and general court of the council and company of adventurers for virginia, require you, the said governor and council of estate, to put in execution with all convenient speed a former order of our courts (which had been commended also to captain argal at his making deputy governor) for the laying and seting out by bounds and metes of three thousand acres of land in the best and most convenient place of the territory of james town in virginia and next adjoining to the said town to be the seat and land of the governor of virginia for the time being, and his successors, and to be called by the name of the governors land, which governors land shall be of the freed grounds by the common labor of the people sent thither at the companies charges, and of the lands formerly conquered or purchased of the paspeheies and of other grounds next adjoining. in like sort we require you to set and lay out by bounds and metes other three thousand acres of good land within the territory of james town which shall be convenient, and in such place or places as in your discretions you shall find meet; which latter three thousand acres shall be and so called the companies land. and we require you, captain yeardley, that immediately upon your arrival you take unto you the guard assigned to captain argal at his going deputy governor, or sithence by him assumed, to be of your guard [for the better defence][ ] of your government; and that as well the said guard as also fifty other persons, now sent and transported with you, you place as tennants on the said governors land and that all other persons heretofore transported at the common charge of the company since the coming away of sir thomas dale, knight, late deputy governor, be placed as tennants on the said companies lands. and we will and ordain that all the said tennants on the governors and companies lands shall occupy the same to the half part of the profits of the said lands, so as the one half to be and belong to the said tennants themselves and the other half respectively to the said governor and to us, the said treasurer and company and our successors. and we further will and ordain that of the half profits arising out of the said companies lands and belonging to us, the said treasurer and company, the one moiety be imploied for the entertainment of the said councel of estate there residing and of other public officers of the general colony and plantation (besides the governor), according to the proportion as hereafter we shall express and in the mean time as you in your discretions shall think meet. and the other moiety be carefully gathered, kept and shipped for england for the public use of us, the said treasurer and company and our successors. and we will and ordain that, out of the half profits of the said companies lands to us belonging, one fifth part be deducted and alotted for the wages of the bailiffs and other officers which shall have the oversight and goverment of the said tenants and lands, and the dividing, gathering, keeping or shiping of the particular moiety of the profits belonging either to the said council and officer there or to us, the said treasurer and company and our successors, as aforesaid. provided alwaies, that out of the said companies land a sufficient part be exempted and reserved for the securing and wintering of all sorts of cattle which are or shall be the public stock and store of the said company. and forasmuch as our intent is to establish one equal [blank of several lines][ ] plantations, whereof we shall speak afterwards, be reduced into four cities or burroughs, namely: the cheif city called james town, charles city, henrico, and the burrough of kiccowtan. and that in all these foresaid cities or burroughs and ancient adventurers and planters which [were] transported thither, with intent to inhabit at their own costs and charges, before the coming away of sir thomas dale, knight, and have so continued during the space of three years, shall have upon a first division, to be afterward by us augmented, one hundred acres of land for their personal adventure and as much for every single share of twelve pound ten shillings paid [for such share], allotted and set out to be held by them, their heirs and assigns, forever. and that for all such planters as were brought thither at the companies charge to inhabit there, before the coming away of the said sir thomas dale, after the time of their service to the company on the common land agreed shall be expired, there be set out one hundred acres of land for each of their personal adventurers to be held by them, their heirs and assigns, for ever; paying for every fifty acres the yearly free rent of one shilling to the said treasurer and company and their successors, at one entire payment on the feast day of st michael the archangel, for ever. and in regard that by the singular industry and virtue of the said sir thomas dale the former difficulties and dangers were in greatest part overcome to the great ease and security of such as have been since that time transported thither, we do, therefore, hereby ordain that all such persons as sithence the coming away of the said sir thomas dale have at their own charges been transported thither to inhabit, and so continued as aforesaid, there be allotted and set out upon a first division fifty acres of land to them and their heirs, for ever, for their personal adventure, paying a free rent of one shilling yearly in manner aforesaid. [footnote : editorial insertion by kingsbury.] [footnote : editorial note by kingsbury.] and that all persons which since the going away of the said sir thomas dale have been transported thither at the companies charges, or which hereafter shall be so transported, be placed as tenants on the companies lands for term of seven years, occupy the same to the half part of the profits as is abovesaid. we therefore will and ordain that other three thousand acres of land be set out in the fields and territory of charles city; and other three thousand acres of land in the fields and territories of henrico; and other three thousand acres of land in the fields and territory of kiccowtan, all which to be and be called the companies lands and to be occupied by the companies tenants for half profits as afore said. and that the profits belonging to the company be disposed by their several moieties in the same manner as before set down touching the companies lands in the territory of james town with like allowance to the bailies and reservation of ground for the common store of cattle in those several places, as is there set down. and our will is that such of the companies tenants as already inhabite in those several cities or burroughs be not removed to any other city or burrough but placed on the companies lands belonging to those cities or burroughs where they now inhabite; provided alwaies, that if any private person, without fraud or injurious intent to the public at his own charges, have freed any of the said lands formerly appointed to the governor, he may continue and inhabite there till a valuable recompence be made him for his said charges. and we do hereby ordain that the governors house in james town, first built by sir thomas gates, knight, at the charges and by the servants of the company, and since enlarged by others by the very same means, be and continue for ever the governors house, any pretended undue grant made by misinformation and not in a general and quarter court to the contrary in anywise notwithstanding. and to the intent that godly, learned and painful ministers may be placed there for the service of almighty god & for the spiritual benefit and comfort of the people, we further will and ordain that in every of those cities or burroughs the several quantity of one hundred acres of land be set out in quality of glebe land toward the maintenance of the several ministers of the parishes to be there limited; and for a further supply of their maintenance there be raised a yearly standing and certain contribution out of the profits growing or renuing within the several farmes of the said parish; and so as to make the living of every minister, two hundred pounds sterling per annum or more as hereafter there shall be cause. and for a further ease to the inhabitants of all taxes and contributions for the support and entertainment of the particular magistrates and officers and of other charges to the said citys and burroughs, respectively belonging, we likewise will and ordain that within the precincts or territories of the said cities and burroughs shall be set out and alotted the several quantities of fifteen hundred acres of land to be the common land of the said citie or burrough, for the uses aforesaid, and to be known and called by the name of the cities or burroughs land. and whereas, by a special grant and licence from his majesty, a general contribution over this realm hath been made for the building and planting of a college for the training up of the children of those infidels in true religion, moral virtue and civility, and for other godly uses, we do, therefore, according to a former grant and order, hereby ratifie, confirm and ordain that a convenient place be chosen and set out for the planting of a university at the said henrico in time to come and that in the mean time preparation be there made for the building of the said college for the children of the infidels, according to such instructions as we shall deliver; and we will and ordain that ten thousand acres, partly of the lands they impaled and partly of other land within the territory of the said henrico, be alotted and set out for the endowing of the said university and college with convenient possessions. whereas also we have heretofore, by order of court in consideration of the long, good and faithful service done by you, captain george yeardley, in our said colony and plantation of virginia, and in reward there of as also in regard of two single shares in money paid into our treasury, granted unto you, the said captain yeardley, all that parcel of marsh ground called weynock and also one other peice and percel of land adjoining to the same marsh called by the natives _konwan_, one parcel whereof abutteth upon a creek there called mapscock towards the east, and the other parcel thereof towards a creek there called queens creek on the west and extendeth in breadth to landward from the head of the said creek called mapscock up to the head of the said creek called queens creek (which creek called queens creek is opposite to that point there which is now called the tobacco point and abutteth south upon the river and north to the landward), all which several lands are or shall be henceforward accounted to be lying within the territory of the said charles city and exceed not the quantity of two thousand and two hundred acres, we therefore, the said treasurer and company, do hereby again grant, ratifie and confirm unto you, the said captain george yeardley, the said several grounds and lands; to have and to hold the said grounds and lands to you, the said captain george yeardley, your heirs and assigns, for ever. and for the better encouragement of all sorts of necessary and laudable trades to be set up and exercised within the said four cities burroughs, we do hereby ordain that if any artizans or trademen shall be desirous rather to follow his particular art or trade then to be imploied in husbandry or other rural business, it shall be lawful for you, the said governor and councel, to alot and set out within any of the precincts aforesaid one dwelling house with four acres of land adjoining and held in fee simple to every said tradsman, his heirs and assigns for ever, upon condition that the said tradesman, his heirs and assigns do continue and exercise his trade in the said house paying only a free rent of four pence by the year to us, the said treasurer and company and our successors, at the feast of st michael the archangel, for ever. and touching all other particular plantations set out or like to be set out in convenient multitudes, either by divers of the ancient adventurers associating themselves together (as the society of smiths hundred and martins hundred) or by some ancient adventurer or planter associating others unto him (as the plantation of captain samuel argall and captain john martin and that by the late lord la warre advanced) or by some new adventurers joining themselves under one head (as the plantation of christopher lawne, gentleman, and others now in providing), our intent being according to the rules of justice and good government to alot unto every one his due yet so as neither to breed disturbance to the right of others nor to interrupt the good form of government intended for the benefit of the people and strength of the colony; we do therefore will and ordain that of the said particular plantations none be placed within five miles of the said former cities and boroughs, and that if any man, out of his own presumption or pleasure without special direction from us, hath heretofore done otherwise a convenient time be assigned him and then by your discretions to remove to some farther place by themselves, to be chosen with the allowance and assent of the governor for the time being and the council of estate; and that the inhabitants of the said city or burrough too near unto which he or they were placed make him and them a valuable recompense for their charges and expence of time in freeing of grounds and building within those precincts; in like sort, we ordain that no latter particular plantation shall at any time hereafter be seated within ten miles of a former; we also will and ordain that no particular plantation be or shall be placed straglingly in divers places to the weakening of them, but be united together in one seat and territory that so also they may be incorporated by us into one body corporate and live under equal and like law and orders with the rest of the colony; we will and ordain also for the preventing of all fraud in abusing of our grants, contrary to the intent and just meaning of them, that all such person or persons as have procured or hereafter shall procure grants from us in general words unto themselves and their associates or to like effect shall within one year after the date hereof deliver up to us in writing, under their hands and seals, as also unto you, the said governor and councel, what be or were the names of those their first associates; and if they be of the adventurers of us, the company which have paid into our treasury money for their shares, that then they express in that their writing for how many shares they join in the said particular plantation, to the end a due proportion of land may be set out unto them and we the said treasurer and company be not defrauded of our due; and if they be not of the adventurers of the company which have paid into our treasury money for their shares, yet are gone to inhabit there and so continue for three years, there be allotted and set out fifty acres of land for every such person paying a free rent of twelve pence the year, in manner aforesaid, and all such persons having been planted there since the coming away of sir thomas dale; and forasmuch as we understand that certain persons, having procured such grants in general words to themselves and their associates or to like effect, have corruptly of late endeavoured for gain and worse respects to draw many of the ancient planters of the said four cities or burroughs to take grants also of them and thereby to become associated unto them with intent also by such means to overstrengthen their party; and thereupon have adventured on divers enormous courses tending to the great hurt and hindrance of the colony; yea, and have also made grants of like association to masters of ships and mariners never intending there to inhabit, thereby to defraud his majesty of the customs due unto him; we, to remedy and prevent such unlawful and greedy courses tending also directly to faction and sedition, do hereby ordain that it shall not be lawful for the grantees of such grants to associate to any other unto them then such as were their associates from the first time of the said grants, without express licence of us, the said treasurer and company, in a great general and quarter court under our seal obtained; and that all such after or under grants of association made or to be made by the said grantees shall be to all intents and purposes utterly void. and for as much as we understand that divers particular persons (not members of our company), with their companies, have provided or are in providing to remove into virginia with intent (as appeareth) by way of association to shroud themselves under the general grants last aforesaid, which may tend to the great disorder of our colony and hinderance of the good government which we desire to establish, we do therefore hereby ordain that all such persons as of their own voluntary will and authority shall remove into virginia, without any grant from us in a great general and quarter court in writing under our seal, shall be deemed (as they are) to be occupiers of our land, that is to say, of the common lands of us, the said treasurer and company; and shall yearly pay unto us for the said occupying of our land one full fourth part of the profits thereof till such time as the same shall be granted unto them by us in manner aforesaid, and touching all such as being members of our company and adventurers by their monies paid into our treasury, shall either in their own person or by their agents, tennants or servants set up in virginia any such particular plantation, tho with the privity of us, the said treasurer and company, yet without any grant in writing made in our said general quarter courts as is requisite, we will and ordain that the said adventurers or planters shall, within two year after the arrival of them or their company in virginia, procure our grant in writing to be made, in our general quarter court and under our seal, of the lands by them possessed or occupied, or from thenceforth shall be deemed only occupiers of the common land, as is aforesaid, till such times as our said grant shall be obtained. we also not more intending the reformation of the errors of the said [ ] than for advancing of them into good courses and therein to assist them by all good means, we further hereby ordain that to all such of the said particular [ ] as shall truly fully observe the orders afore and hereafter specified there be alotted and set out, over and above our former grants, one hundred acres of glebe land for the minister of every [ ] and fifteen hundred acres of burough land for the public use of the said plantation; not intending yet hereby either to abridge or enlarge such grant of glebe or common land as shall be made in any of our grants in writing to any of the said particular plantations; we also will and ordain that the like proportion of maintenance out of the [ ] and profits of the earth be made for the several ministers of the said particular plantations as have been before set down for the ministers of the said former cities and burroughs; we will and ordain that the governor for the time being and the said council of estate do justly perform or cause to be performed all such grants, covenants and articles as have or shall be in writing in our great and general quarter courts to any of the said particular plantations, declaring all other grants of lands in virginia, not made in one of our great and general quarter courts, by force of his majesties letters patents to be void. and to the end aforesaid we will and ordain that all our grants in writing under our seal, made in our great and general quarter courts, be entered into your records to be kept there in virginia; yet directly forbiding that a charter of land granted to captain samuel argal and his associates, bearing date the twentieth of march, , be entered in your records or otherwise at all respected, forasmuch as the same was obtained by slight and cunning; and afterwards upon suffering him to go governor of virginia was by his own voluntary act left in our custody to be cancelled upon grant of a new charter which [ ] we do also hereby declare that heretofore in one of our said general and quarter courts we have ordained and enacted and in this present court have ratified and confirmed these orders and laws following: that all grants of lands, privileges and liberties in virginia hereafter to be made, be passed by indenture, a counterpart whereof to be sealed by the grantees and to be kept [ ] the companies [ ] evidences; and that the secretary of the company have the engrossing of all such indentures; that no patents or indentures of grants of land in virginia be made and sealed but in a full, general and quarter court, the same having been first thoroughly perused and approved under the hands of a select committee for that purpose [ ] that all grants of [ ] in virginia to such adventurers as have heretofore brought in their money here to the treasury for their several shares, being of twelve pounds ten shillings the share, be of one hundred acres the share upon the first division and of as many more upon a second division, when the land of the first division shall be sufficiently peopled; and for every person which they shall transport thither within seven years after midsummer day, one thousand six hundred and eighteen, if he continue there three years or dye in the mean time after he is shiped it be of fifty acres the person upon the first division and fifty more upon a second division, the land of the first being sufficiently peopled, without paying any rent to the company for the one or the other; and that in all such grants the names of the said adventurers and the several number of each of their shares be expressed; provided alwaies, and it is ordained, that if the said adventurers or any of them do not truly and effectually, with one year next after the sealing of the said grant, pay and discharge all such sums of money wherein by subscription (or otherwise upon notice thereof given from the auditors) they stand indebted to the company, or if the said adventurers, or any of them having not lawful right, either by purchase from the company or by assignment from some other former adventurers, within one year after the said grant or by special gift of the company upon merit preceding in a full quarter court, to so many shares as he or they pretend, do not within one year after the said grant, satisfie and pay to the said treasurer and company for every share so wanting after the rate of twelve pounds ten shillings the share, that then the said grant for so much as concerneth the [ ] part and all the shares of the said person so behind and not satisfying as aforesaid shall be utterly void; provided also, and it is ordained, that the grantees shall from time to time during the said seven years make a true certificate to the said treasurer, councel and company from the chief officer or officers of the places respectively, of the number, names, ages, sex, trades and conditions of every such person so transported or shiped, to be entered by the secretary into a register book for that purpose to be made; that for all persons not comprised in the order next before which during the next seven years after midsummer day, , shall go into virginia with intent there to inhabite, if they continue there three years or dye after they are shiped there shall be a grant made of fifty acres for every person upon a first division and as many more upon a second division (the first being peopled), which grants to be made respectively to such persons and their heirs at whose charges the said persons going to inhabite in virginia shall be transported with reservation of twelve pence yearly rent for every fifty acres to be answered to the said treasurer and company and their successors for ever, after the first seven years of every such grant; in which grants a provisoe to be inserted that the grantees shall from time to time during the said seven years make a true certificate to the said treasurer, councel and company, from the chief officer or officers of places respectively, of the number, names, ages, sex, trades and conditions of every such person so transported or shiped, to be entred by the secretary into a register book for that purpose to be made; that all grants as well of one sort as the other respectively be made with equal favours, and grants of like liberties and immunities as near as may be to the end that all complaint of partiality [or] differencie may be prevented. all which said orders we hereby will and ordain to be firmly and unvoilably kept and observed and that the inhabitants of virginia have notice of them for their use and benefit. lastly, we do hereby require and authorize you, the said captain george yeardley and the said council of etats, associating with you such other as you shall there find meet, to survey or cause to be survey'd all the lands and territories in virginia above mentioned and the same to set out by bounds and metes, especially so as that the territories of the said several cities and buroughs and other particular plantations may be conveniently divided and known the one from the other; each survey to be set down distinctly in writing and returned to us under your hands and seals. in witness whereof we have hereunto set our common seal, given in a great and general court of the council and company of adventurers of virginia held the eighteenth day of november, ; and in the years of the reign of our soverain lord james, by the grace of god, king of england, scotland, france and ireland, defender of the faith, &c., vizt. of england, france and ireland the sixteenth and of scotland the two and fiftieth. novr. , . kingsbury, vol. iii, pp. - . [footnote : blank space.] [footnote : blank space.] virginia company. instructions to the governor and council of state in virginia july , instructions to the governor for the time being and counsell of state in virginia: . first wee requier you in gennerall take into spetiall regard and estimation the service of almightie god and observance of his divine lawes and that the people in virginia bee trained up in true religion, god lives and vertue, that ther example may be a meanes to winn the infidells to god: wherin wee pray you especiallie to have in daly rememberance that the patterne which you shall give in your owne persons & in your families wilbee of singular and chief moment whatt may soever itt shall propend. and since our gennerall endeavours and designes have nott yett effected a due establishment of the honor and rights belonginge to the church and ministerie, wee must requier your most earnest care to advance all things appertayninge thereunto, seriously endeavoring the establishment of due order in administringe of all services according to the usuall forme and discipline of the church of england and carefullie avoidinge all factious and needlesse novelties tending onlie to the disturbance of peace and unitie; and that such ministers as have been or shalbe sent from time to time may bee respected and mainteined according to the orders made in that behalfe, also for accomodatinge the churches or places for divine service. . wee praie you likewise take care, that the people now ther or hereafter inhabitinge bee kept in due obedience to his majestie and that they all take the oaths of supremacie and allegiance; and that you provide that justice bee equallie administered to all his majesties subjects ther resideing, and as neare as may be after the forme of this realme of england, wherin you are to have a vigilant care to prevent corruption amongst your inferior officers tending to the perverting or delaying of justice; wee praie you also to have espetiall care that no injurie or oppresion bee wrought by the english against any of the natives of that countrie wherby the present peace may be disturbed and ancient quarrells (now buried) might be revived; provided, nevertheles, that the honor of our nation and safety of our people bee still preserved and all maner of insolence committed by the natives be severely and sharpelie punished. . item: that you cause our people to applie themselves to an industrious course of life in followeinge ther buissinesies, each in the several degre and proffession, and that no man bee suffered to live idly, the example wherof might prove pernicious to the rest; in perticular that you bee carefull now in the begining to suppresse too much gaming and above all things that odious vice of drunkenes; and that all kinde of riott both in apparrell & otherwise bee eschewed; and that an edict bee speedily published that no person residing in virginia (excepting those of the counsill and heads of hundreds and plantations, ther wives & chilldren) shall weare any gold in ther clothes or any apparrell of silke, untill such time they have itt of the silke ther made by silkewormes & raised by ther owne industry. . item: that you use good prudence that no just cause of offence bee given to any other prince, state or people which are in league or amitie with his majestie; and that no captaine or other of our colonie under pretence of trade to the coast of the west indies bee suffred to saile out with anie vessell ther to robb & spoile wherby to provoke any other nation against us; and that no piratts have cause by ... accesse to retier with ther purchasses to the coast of virginia, but that they be severlie punnished & ther goods confiscated: for the preventing of which, as alsoe for securing your selves against all forraigne ennimies, wee require your serious considerations for the speedie errecting of fortresses or blockhouses at the mouth of the river as also for all other manner of needfull fortifications in all places, and to the effecting hereof wee requirer you, as well private persons as hundreds and corporations, bee ratablie proportioned to the performance of certaine dayes worke by the yeare. . item: that the best meanes bee used to draw the better disposed of the natives to converse with our people and labor amongst them with convenient reward that therby they may growe to a likeing and love of civility and finallie bee brought to the knowledge and love of god and true religion, which may prove also of great strength to our people against the savages or other invadors, whatsoever; and they may bee fitt instruments to assist afterwards in the more gennerall conversion of the heathen people which wee somuch desier. . item: that for the laying of the surer foundation for the said conversion, that each towne, cittie, burrough and other particular plantation bee procured to obtaine to themselves by just meanes a certaine number of the chilldren of the natives to be educated by them in true religion and a civill course of life; of which chilldren the most towardlie boyes in will and graces of nature to bee brought up by them in the first elements of literature so to bee fitted for the colledge, in the fabricke whereof we purpose to proceed assoone as any proffit returned from the tenantes shall enhable us; and doe therfore verie ernestlie requier your uttermost helps aswell for the improveinge of ther labors, as for the true account and returne of the proffitts already due, that so that busines of the colledge may goe forward with which wee doubt not a particular blessing of god will goe a long uppon the collony ther as wee are assured the love of all good men here to the plantation will therby be encreased. . item: that imediatlie after the gatheringe in of the present yeares cropp by sir george yeardlie, wee requier that the land belonging to the place of governor bee resigned to sir francis wyate and that ther bee delivered to him by sir george yeardly the hundred tenants well furnished which wee sent him for the place; and if ther bee any of them wanting, sir george yeardly is out of his private to make good the full nomber of a hundred, which wee hope hee will gladlie doe, remembringe our courtesie in the addition of thirtie able persons sent him the former springe to supplie those that wee understood through mortallitie had failed; as also our refusing to accept of his offer to depart [part?] with all the proffitt by the governors land or tenants, onlie exspecting his care to cultivate well that land and to uphold that nomber of a hundred tenants for the place. . item: imediatelie upon the expiracion of sir george yeardlys goverment on the eighteenth of november next, you shall admitt sir francis wiats commission to bee read, whom accordinglie you shall receave and publish governor and captaine generall, yealding unto his person and place all our respect, honor and observance. . item: the comission for establishing of the counsell you shall publish uppon the deliverie therof and as speedylie as convenientlie you may to administer the oath of counsellors unto the severall persons therin named. . and forasmuch as ther hath ben in theise late yeares great fault or defect in nott putting in execucion our orders of court and counsell for the setting upp & upholdinge those staple comodities which are necessarie for the subsisting and encrease of the plantation, which hath happned in part by the our chargeing the governor with toe much buissnes, wee have uppon espetiall approvement of the industry and sufficiency of george sandis, esqr., as also for his faithfulnes and plenarie intelligence of our intendments and counsells here (wherunto hee hath from time to time bein privie, not only elected and athorised him to bee treasurer in virginia, butt also committed to his spetiall and extreordinarie care the execution of all our orders, charters and instructions tending to the setting upp, encrease and maintaininge of the said staple comodities); wee, therefore, requier you that upon all such occationes wherin the said master ... shall have occation to bee employed, you give him all such countenance, help and power in the execution therof as you would doe to the governor himselfe if hee were personallie present; and that provition bee made for convenient transporting him from place upon all those occations; we have by order of our quarter court bearing date the second day of may last, allotted unto the place of treasuror fifteen hundred acres of land and fifty tenants wherof twenty five are now sent and twenty five more are to bee sent the next spring; to the place of marshall (wherunto wee have chosen sir william neuce) wee have likewise allotted fifteene hundred acres of land and fifty tenantes now provided and furnished and deliverid to the said sir william newce to bee transported this present somer; to the place of the companies deputie (wherunto wee have formerlie allotted twelve hundred acres and forty men) wee have added three hundred acres of land and tenn tenants more to bee sent the next springe; to the phisitions place wee have allotted twenty tenantes sent last spring and five hundred acres of land; to the secretarie, five hundred acres of land and twenty tenantes sent out the last springe; for the accomateinge of which severall persons in ther places & offices in the best manner according to our promises, furtherance that in you lieth. . item: wee pray you likewise with convenient speed to reveive the commissiones formerlie directed to sir george yeardly, then governor, and to the counsell of state ther beareinge date the of november, , conteining the lawes & orders for dividing the citties and burroughs with ther land and people, and sondrie other particularities for the well settling of that state. and haveing sent you coppies of all such instructions, letters, charters & directions as have here before been sent from time to time, wee pray you to peruse them all and what soever you shall find not contrarie to any of theise instructions and requisite for the behouf of collonie ther or of the companie here, wee wish you to observe itt as though the same were here particularly inserted. also all orders of courtes that shall bee certified uppon peticions or otherwise, under the attest of our secretaries hand referred unto the governor or counsell ther, wee pray you see that a due course bee taken accordinglie to doe the partie whome it shall concerne right and justice, no lesse then if they had been particularly here by name commended unto you. . item: that the captaines and heades of everie particular plantation or hundreds, as likewise everie cheif officer that hath people under his charge, deliver severall catalogues at one of the fower quarter sessions of the counsell yearly as well of the severall names, conditions and qualities of those that bee liveing, as also of those that bee dead, and likewise of the mariages and christnings hapninge with that place; and that the personall goods and estate of the partie deceased bee carefullie keptt & reserved to the rightt owners therof; and lastlie that a list bee kept of the nomber of all sorts of cattell in each particular burrough or plantation; and that you cause the secretarie once everie yeare to returne us hether a perfect coppie of all the premisses. . item: that whereas the principall hope of the plantacion dependes much on the prosperity of particular colonies or hundreds, itt wilbe verie necessarie that in case of the death or other misaccidents of the chief heads of those colonies, you take into your carefull regaurd the conservation of the bodie and sinews of that plantation united, preserving the remaines by the best meanes that either industry or charity can effect. . item: that according to his majesties gratious advise and the desire & expectacion of the whole state here, you draw the people from the excessive planting of tobacco and that, according to a late order of court in that behalfe made the thirteenth of june last, you suffer them not to plaint in one yeare alone one hundred waight tobacco the head, that is the person; and that you do provide by some generall course to bee held amongst them that they apply themselves to the soweing and planting of corne in good plentie that ther may bee alwaies a large proportion not onlie for their owne use, but store also for such as in great multitudes wee hope yearly to send; likewise by the same generall course to cause the generall inhabitants and households to enclose by pale & strong fences some fitting portion of our land for the keping of cowes, tame swine and poultrie; and for the making all due provitiones for the encrease & preservation of the bread of all sorts of cattle, and in particular kine, wherof wee thinke itt most unfitt that any should bee as yett killed and requier your vigilent care for the inhibiting thereof. . item: after corne, wee comend unto your care the matter of silke which his majesty heretofore espetially to commended unto us and out of his owne store hath moste gratiouslie been pleased often to furnish our company with seed: in supply of which more hath bin since sent and a greater quantitie shall likewise followe hereafter as soone as itt shall come to our hands. wee requier therfore that you cause in everie particular plantation great nomber of mulbery trees to bee plainted neare ther dwellings, and such as are already groweing to bee preserved for planting, of which many excellent bookes have binn already sent in december last, unto which wee referr you for your better direction therin, as also to divers french and other experienced men, late sent & procured at extraordinarie charge, of whose generall subsistence wee expect your assidious care. . item: silke grasse, being a comoditie of spetiall hope and much use, not with standing through negligence and want of experience, it hath lately been declared to bee full of difficullty and hazard both in groweing and curing, yett we doe especially recomend unto your care and that you direct some good way to bring it to perfection by experimenting the soiles, the seasons and true maner of cultivating of itt, being confident that that which growes so naturally in those parts will much more by art and industry bee at lenght brought to perfection, and being many wayes so usefull will bring great honor an [and?] proffitt unto the action. . item: wee doe also especially recommend unto you the planting of vines in aboundance and that the vignerons sent with so great charge to the company bee fairely & carefullie provided for. . item: wee requier also that all sorts of artsmen be employed in ther severall trades and that store of aprentizes bee placed & held to learne ther occupations, especially those that are most usefull or most comodious; and that you duely consider the quallities and trades of all those people sent over for the companies or any of the collonies servis & that you cause them to bee held to ther trades and occupations wherin ther are like to deserve & win most bennifitt; and not to suffer them to forsake ther former occupacions for planting tobacco or such uselesse comodities. and here wee earnestly commend unto your care the dutchemen sent for the erecting of sawing mills, a worke most necessarie since the materialls for howsing and shipping can not otherwise without much more troble, paines and charge bee provided; & although wee have received some notice that fitting places for ther works and not ther easilie found out, yett wee hope that dillegence fitting to bee used in a case of so generall benifitt hath discoverid how to make use of ther skills by this time. nor doe wee here apprehend any difficullty of finding accomodation for that purpose about the falls or towards the heads of some river or brookes by the station, wherof timber may be brought unto them verie easili and by the current of the river the plankes or boords sawen may bee transported for the generall use of all or the greatest part of our people. . item: that your corne mills bee presentlie erected and pupliqe bakehowses in everie burrough bee built with all speed and dilligence. . item: that all apparent or proved contracts made in england or in virginia betweene the owners of land in virginia and ther tenants or servants be truly performed and the breach of them reformed by due punishment as justice shall requier. . item: that you suffer no crafty or advantageous meanes to bee used to entice a way the tenants or servants of any particular plantacion from the place they are ... ceited and that all offenders herein bee severlie punished and the partie drawne away bee returned to ther former place. [ ]. wee commend unto your especiall regard the providing for such persons as have already bin sent or are now or shall be hereafter entertained for the erecting of iron works; that all possible meanes bee used for ther encouradgment & for the performing of generall contracts here made with the company wherby justice unto them and profitt to the plantation may arise. and whereas mr. john berkly hath bin approved unto us here by extreordinary recommendations to bee industrious and intelligent gentleman many ways, butt espetially for iron works, wee desier hee & his company may bee cherished by you and supported by the helpe of the whole colonie if need shall requier, therby to enhable him to perfect that worke wherupon the company have already expended great somes of money & itt is a com[modity] so necessarie as few other are to bee valewed in comparrison therof. upon the successe therof also, mens eyes are generally fixed & therfore if itt should now (as by former misaccident or negligence) fall to the ground, ther were little hope that ever they would bee revived againe; and whereas wee have bin so circomspect as to contraict with many masters severally for the erecting of the said works, wherby wee hoped though some miscarried or failled others should have proceeded; if by want of workes or necessarie materialls the said masters cannot for present bee seatted or enjoy the conditions of ther contraicts, wee thinke fitt you should accomodate them according to ther several habillities in some secondarie or subordinarie places of assistance to mr. berkly, or when another worke may be advanced to worke them over that, according (as neere as may bee) to ther contraictes made here with the company, wherby this worke of so great consequence & generall expectacion, infinitt com[modity] & unspeakeable benifitt to the plantacion may bee dilligentlie prosecuted & upheld. . item: salt, pich and tarr, soape ashes, &c., often recommended and sett up, and for which fittinge men & matterialles have been sent to the great charge of the company and yett daylie complaints come to us of the want of them, wee desier you will now prosecute and further with all dilligence & care. . item: your makeing of oile of wallnuts, your employing your apothecaries in distilling of hott waters out of your lees of beere and searching after minierall dyes, gummes, druggs, and the like things, wee desier you not to forgett and good quanteties of all sorts to send us by all shipps. . item: since wee have conceaved itt most fitting to ordaine that a small quantety of tobacco shall bee plainted or cherished in virginia, wee hold itt verie necessarie to use all possible care that the proporcion limmitted may bee improved in goodnes as much as may bee; and therefore that some good order bee taken to see itt well cured and duely ordred that bringing itt into request may cause any certaine benifitt to the planters. . item: that due proceeding bee used in the erection of those howses appointed for lodgeing of new men upon ther landing, according to former directions; and that from time to time a course bee taken for ther repaire, cleane & neat; keeping likewise, for comon store, howses in convenient places as well for other needs necessary provitions, as upper roomes for conservation of a proportion of gounpouder ready for use. . item: whereas wee have many times found losse & interuption in our buissines through want of frequent relacion from virginia, wee therefore requier you att least to make a quarterly dispatch unto us, the duplicate wherof to bee duely sentt by the next oppertunitie of shipping after. . item: whereas capt. william norton and certaine itallians, now by the general company and other worthy minded adventures att a verie great charge, sent for the erecting of a glasse furnace in virginia, wee hartilie desire you to afford them all favor possible. and in particular that the guesthowses built by leftenant whitakers bee allowed them for ther habitacion till they may convenientlie provide themselves of ther owne; and that all orders given them from hence bee exactlie putt in execucion. . item: a gentleman's great dilligence in our affaires, accompaned with extreordinarie capacity and judgement, haveing proceeded the treatise of the buissnes belonging to the plantacion, approved by us to bee full of exellent observances for those that are emmenly employd in virginia, as well for us here, wee sent a coppy to ly amongst the records of your counsell from whence, from the often veiw of former passadgs, wee wish every counsellor may make permanent instructions, and no doubt much helps and furtherance may bee produced in most occasiones for the advancement of the plantacion. . item: that ther be espetiall care taken both of generall and particular survaies wherby not onlie a true mapp and face of the whole country, costs, creeks, rivers, highe ground & lowe ground, &c., may bee exactlie discoverid, but also the boundaries of the severall hundreds and plantacions, with the perticuler directions in them bee perfectlie sett forth from time to time, mainetained to prevent therby future differences that arise upon questions of possestion, wherin also itt may be fitting and moste usefull to posteritie to cast an imaginarie eye and view, wher and which way the grand highewayes may bee like to strike and passe through the dominions; in which course the hard mountaines, the fords, the places for bridges, &c., may nott unfittlie bee considered; for performance of all which the premises (and for the better sattisfaction) of the planters, whoe have so often required ther lands may bee devided and bounded, wee have now sent and furnished out mr. william cleyburne, gentleman, recomended unto us as very [fitt] in the art of surveying. . item: the oppressing and imoderate fees heretofore exacted in virginia by divers officers in valuacion of ther paines & travell for the colonies service have partlie occationed the settling a competent revenue to arrise therby tenants to everie cheif officer; wee now forbidd that officer so provided for, or otherwise by allotted parts out of the common profitt recompenced, doe take any other fees for execution of ther severall places either directly or indirectly; neverthelesse, that clarks & such like may have a reward for ther dilligence, wee require you by order to sett downe some small proportion for passes, warrants, copies of orders, seales, &c., or proportionably to the merits of servants paines and attendance. . item: the governor & counsell assembled within a short time after the arivall of this shipp are to sett downe the fittest months after ther quarterlie meeting of the counsell of state according to the seasons and to fitting meanes for ther entertayment, together with regaurd of the best ease and benifitt of the people, that shall have occasion to addresse themselves unto the counsell, either for justice or direction; considering also the times of making ther dispathes to england, according to the oppertunities of shiping ther comeing or goeing. . that the governor for the time being in or about the foresaid time doe summon by an officer appointed for that purpose the counsell of state to appeare at a day and to bee together for the space of one whole month or more if need shall requier to advise & consult upon matter of counsell of state and of the generall affaires of the colonie, and as ther shalbee cause to order and determine the greater causes of consequence or such matter as shall growe or arise within the colonie, either by reference or judgment; and that free accesse bee permitted to all suiters to make knowne ther perticuler grevances, bee itt against what person soever. and if the plaint appeare to bee important, to record the same ther & to returne a coppy ther of together with the report of your proceeding therin. . as also to keepe a perfect register of all the acts of each quarter sessions duely and orderlie and therof to returne a perfect transcript unto us by the first oppertunitie of shipping from time to time. and that at everie sessions you cause all instructions and charters that are already or shall hereafter bee sent from hence to bee read and so from sessions to sessions untill our directory shall bee fullie executed. . item: in case of the governor death or removall or suspencion by order from hence untill other direction from us can come, wee requier that the counsell or major part of them then residing in virginia doe imedialie assemble themselves and within fourteene dayes or sooner from out of ther body to elect one to supplie the place for the time; and to preserve the state of bussinesse still in the same current that it was. . the relation of which act of counsell wee will you send us with as much speede as may bee, and if ther should bee an unexpected division in the voices of the counsell that a just halfe should bee willing to elect one and the other halfe desirous of another, then wee will that election bee made of the leftennant governor; and in his absence or necessarie cause of declining the marshall, and in case of his default or such refusall then the treasurer, then one of the two deputies or the other till the place of governor be settled in on [one] of our said cheif officers. . item: whereas ther hath bin severall directions given to the former governor for fixing the tenants uppon the lands as well belonging to the governor place as other the officers seated by the governor, which uppon pretences hath bin allowed and neglected and the men lett out to the heir; wee requier you that hereafter no officer bee permitted to lett out his tenants, butt settle them uppon the lands sett out for his place, enjoining them to enclose gardens, build howses, deviding them into families or societies, to place them upon the land appropriated to his office, excepting onlie the counsell shall have power to make a convenient order at one of the quarter sessions to dispence with this article for the space of six months & that in case onlie of extreeme necessitie. . item: the governor, onlie for the time being, shall summon counsells and sine warrants & execute or give athoritie for execution of the counsells orders, except in cases which seeme to appertaine to the imediate execucions of liftenant generall, marshall, tresuror, or deputies, wherin according to ther severall comissions or by a conceaved order from a quarter counsell the officers are severallie directed and authorised. . the governor for the time being shall have absolute power and authoritie according to the implicacion of his particular commission to direct, determine and punish at his good discretion any emergent buissnes, neglect or contempt of authority in any kind or what soever negligence or contempt may bee found in any person ther residing or being, except only those of the counsell for ther on persons whoe are in such cases to bee summoned to appeare at the next quarter session of the counsell holdne ther abide ther censure; in the meane time if the governor shall thinke itt may concerne either the quiett of that state to proceed more speedily with such an offendor, itt shall bee lawful to summon a counsell extreordinarie, wherat six of the counsell at lest are to bee present with the said governor and by the main parte of ther voices committ any counsellor to saife custody or upon baile to appere and abide the order of the nextt quarter counsell. . everie order and decree of the counsell of state shalbe concluded by the major parte of voices at that assembly, wherin the governor for the time being is to have a casting voice if the nomber of counsellors should bee even or should bee equally devided in oppinnion; neverthelesse reserving to the said governor a negative voice att any generall assembly according to a former comission granted.[ ] [footnote : one of the few references to the _commission_, not the "instructions", to yeardley, authorizing a general assembly.] . item: wee pray you likewise to take into your care the protexcion of the people, that they suffer no wrong by the engrossing commodity & forestalling the marketts, butt preserve them open for all men freely or indifferently to buy or sell. . item: wee requier you expecially to see the publicke labors to bee from time to time equally charged & burdned for the people that one mans tenants bee nott favored above others or officers tenants favored more then those of the puplique; and to the end those services may fall as easy to all ports as may bee, wee thinke in the punishment of all enormus misdemeanors, &c., ill deservers bee condemned to a nomber of days works for puplique use & building, or to finnishing of a fence or dike, or to cariage or roweing according to the meritt of the offence. . item: where as the right honourable the earle of pembroke with divers his associates have undertaken to plaint thirty thousand acres of land in virginia, we therfore intreat you to make choice of the best seate on that river that is not yett inhabited; and herin to take the advise of mr. leech, whoe now goes over to veiw the cuntrie and to bee enployd in that plantacion which being sett out wee desier to be informed therof. . item: as wee hold itt most necessarie that you provide for the generall safety and securing of your selves and estats together, so doe wee conceave it a matter of exceeding great advantage & incouragment to discover everie day farther by the sea coast and within land about which wee requier you to conceave a fitting course from time espetiallie to find good fishing betweene james river and cape cod or any wher within our limmittes wherin wee suppose the new trade of commodities found wilbe like to recompence the troble and charge bestowed therin, for wee are certainely informed that the dutchmen within or leagues of your plantacion steile a trade for furrs, &c., to ther verie great gaine & content. . item: for as much as planting of staple commodities is useuallie much advanced by example taken one from another, wee expect that the cheif officers by ther owne particular employment of ther people & land, & setting forth the benifitts & hopes of such endeavors, shall exceedinglie advance the state of commodity and trade. . item: wee doe moreover requier that according to your oaths and severall charges your thoughts & endeavors be unanimouslie employed for performance of our instructions in generall, & particuler that chieflie aiminge at the establishment of the colonie your selves & all of us that have endeavorid therein may bee comforted in a happie apparence of prosperity of the plantacion which wilbe glorious before god and infinitt honor, strenght & profitt to our king & cuntry. . lastly wee pray you that no shipp that now or at any time wee shall send at the companies charge to virginia bee suffered to stay ther above thirty dayes for avoiding of charge which hath heretofore grown uppon long voydges in freight & wages & that you suffer not in the said shipps any goods provicions sent thither to bee brought from thence againe by any marriners, passengers or others uppon paine of some punishment to be inflicted upon them; and although the infancy of the plantacion may nott some time afford the more valuable comodities to freight the shipps home uppon so short a stay, yett wee suppose that a prudent course & preperacion may at last afford them choice timber as clear walnutt or some other such lesse valueable commodity to add to ther lading which will yeild more profitt to the companie with the shipps quicke returne then is usueally raised by ther best comodities when longer accompt for freightt hath drawne on a further charge. given under the counsell scale the fower and twentith day of julie, ; and in the yeare of the raign of our soveraigne lord james, by the grace of god of england, scotland, france and ireland, defender of the faith, &c., that is to say of england, france and ireland the nineteenth and scottland the fower and fiftith. signed by the earl of southampton sir edwin sandis mr. john davers mr. john ferrar, deputy mr. thomas gibbs mr. sam wrote mr. nicholas ferrar doctor anthony doctor williamson doctor galston mr. george sandys kingsbury, vol. iii, pp. - . treasurer and company. an ordinance and constitution for council and assembly in virginia july , to all people to whom these presents shall come, bee seen or heard, the treasuror, council and company of adventurers and planters of the citty of london for the first collony in virginia send greeting: knowe yee that wee, the said treasuror, counsell and company, takeing into our carefull consideracion the present state of the said colony in virginia, and intending by the devine assistance to settle such a forme of government ther as may bee to the greatest benifitt and comfort of the people and wherby all injustice, grevance and oppression may bee prevented and kept of as much as is possible from the said colony, have thought fitt to make our entrance by ordaining & establishing such supreame counsells as may not only bee assisting to the governor for the time being in administracion of justice and the executing of other duties to his office belonging, but also by ther vigilent care & prudence may provide as well for remedy of all inconveniencies groweing from time to time as also for the advancing of encrease, strength, stabillitie and prosperitie of the said colony: wee therefore, the said treasuror, counsell and company, by authoritie directed to us from his majestie under his great seale, upon mature deliberacion doe hereby order & declare that from hence forward ther bee towe supreame counsells in virginia for the better government of the said colony as aforesaid: the one of which counsells to bee called the counsell of state and whose office shall cheiflie bee assisting, wth ther care, advise & circomspection, to the said governor; shall be chosen, nominated, placed and displaced from time to time by us, the said treasurer, counsell & company and our successors; which counsell of state shall consiste for the present onlie of those persons whose names are here inserted, vizt.: sir francis wyatt, governor of virginia; captaine francis west; sir george yeardley, knight; sir william newce, knight, marshall of virginia; mr. george sandys, tresuror; mr. george thorpe, deputy of the colledge; captaine thomas newce, deputy for the company; mr. christopher davison, secretarie; doctor potts, phesition to the company; mr. paulet; mr. leech; captaine nathaniell powell; mr. roger smith; mr. john berkley; mr. john rolfe; mr. ralfe hamer; mr. john pountus; mr. michael lapworth; mr. harwood; [and] mr. samuel macocke. which said counsellors and counsell wee earnestlie pray & desier, and in his majesties name strictlie charge and command, that all factious parcialties and sinister respects laid aside, they bend ther care and endeavors to assist the said governor first and principallie in advancement of the honor and service of almightie god and the enlargement of his kingdome amongste those heathen people; and next in the erecting of the said colonie in one obedience to his majestie and all lawful authoritie from his majestis dirived; and lastlie in maitaining the said people in justice and christian conversation among themselves and in strength and habillitie to wth stand ther ennimies. and this counsell is to bee alwaies, or for the most part, residing about or neere the said governor. the other counsell, more generall, to bee called by the governor, and yeerly, of course, & no oftner but for very extreordinarie & important occasions, shall consist for present of the said counsell of state and of tow burgesses out of every towne, hunder [hundred] and other particuler plantacion to bee respetially chosen by the inhabitants. which counsell shalbee called the generall assemblie, wherein as also in the said counsell of state, all matters shall be decided, determined & ordered by the greater part of the voices then present, reserveing alwaies to the governor a negative voice. and this generall assembly shall have free power to treat, consult & conclude as well of all emergent occasions concerning the pupliqe weale of the said colony and evrie parte therof as also to make, ordeine & enact such generall lawes & orders for the behoof of the said colony and the good govermt therof as shall time to time appeare necessarie or requisite. wherin as in all other things wee requier the said gennerall assembly, as also the said counsell of state, to imitate and followe the policy of the forme of goverment, lawes, custome, manners of loyall and other administracion of justice used in the realme of england, as neere as may bee even as ourselves by his majesties lettres patents are required; provided that noe lawes or ordinance made in the said generall assembly shalbe and continew in force and validitie, unlese the same shalbe sollemlie ratified and confirmed in a generall greater court of the said court here in england and so ratified and returned to them under our seale. it being our intent to affoord the like measure also unto the said colony that after the goverment of the [said colony, shall once have been well framed & settled accordingly, which is to be done by us as by authoritie derived from] his majestie and the sa[me shall] have bene soe by us declared, no orders of our court afterwarde shall binde [the said] colony unles they bee ratified in like manner in ther generall assembly. in wittnes wherof wee have hereunto sett our common seale the th day of [july] , and in the yeare of the raigne of our governoure, lord james by the ... of god of england, scotland, france & ireland, king, defendor of the ... vizt., of england, france and scotland the nineteenth and of scotland the fower and fiftieth. kingsbury, vol. iii, pp. - . stith, appendix, pp. - . transcriber's notes: this is one of a series of pamphlets produced in in celebration of the th anniversary of the founding of the jamestown colony in virginia. research indicates that the copyright on this book was not renewed. spelling was left unchanged throughout. footnotes were indented and moved after the paragraph to which they pertain. extra spaces within lists of names were removed. extra spaces within text were retained where they indicate omitted text in the original manuscript. the printer used multiple footnote anchors, numbered and , to indicate some of these blank spaces. a comma was replaced with a period at the end of a sentence in the introduction: ... governing body. it was thus ... a semicolon was replaced with a period at the end of numbered paragraph in the "instructions ... to sir thomas west ..." in the "instructions to the governor and council of state," brackets around paragraph number are indicate the number was missing in the original. these brackets are not a footnote anchor. note: this is an updated edition of pg# . copyright (c) s. a. reilly our legal heritage king aethelbert - king george iii, a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s-reilly@att.net copyright (c) preface 	this book was written to appreciate what laws have been in existence for a long time and therefore have proven their success in maintaining a stable society. its purpose is also to see the historical context in which our legal doctrines developed. it includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. 	this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. 	in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. 	the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. 	the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase almost all of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. 	the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. 	for easy comparison, amounts of money expressed in pounds or marks [danish denomination] have often been converted to the smaller denominations of shillings and pence. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." there are twelve pennies or pence in a norman shilling. pence are abbreviated "d." six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination than a shilling. there were no coins of the denomination of shilling during anglo-saxon times. 	the sources and reference books from which information was obtained are listed in a bibliography instead of being contained in tedious footnotes. there is no index to pages because the electronic text will print out its pages differently on different computers with different computer settings. instead, a word search may be done on the electronic text. dedication and acknowledgements 	a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters - , and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters - , especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - . epilogue: - appendix: sovereigns of england bibliography - - - chapter - - - - the times: before a.d. - 	the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. 	early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. 	for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. 	women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. 	the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. 	if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. 	the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. 	the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. 	later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. 	clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. 	pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. 	the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. 	it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. 	hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. 	circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. 	there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. 	some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. 	flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. 	common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. 	with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. 	slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. 	during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. 	several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent [much later a county] and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. 	augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. 	these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one paid a man's "wergeld" [worth] to his kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson, house breaking, and open theft, were punishable by death and forfeiture of all property. - the law - 	"these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; m......frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and shillings to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. . if the king's ambiht smith [smith or carpenter] or laad rine [man who walks before the king or guide or escort], slay a man, let him pay a half leod geld. . [offenses against anyone or anyplace under] the king's mund byrd [protection or patronage], shillings . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle".) . if a man lie with the king's maiden [female servant], let him pay a bot of shillings. . if she be a grinding slave, let him pay a bot of shillings.the third [class of servant] shillings. . let the king's fed esl [woman who serves him food or nurse] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half leod geld [wergeld for manslaughter] of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole leod within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's hlaf aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three- fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wer geld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht ham scyld [legal means of protecting one's home], let him adequately compensate. . if there be feax fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be an injury to the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring] finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered by the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one be gegemed [pregnant], let bot be made with shillings. . if any one be cear wund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with leod gelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden with cattle, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to the owner, and afterwards buy [the object of] his will from the owner. . if she be betrothed to another man in money [at a bride price], let him [who carried her off] make bot with shillings. . if she become gaengang [pregnant], shillings; and shillings to the king. . if a man lie with an esne's wife, her husband still living, let him make twofold bot. . if one esne slay another unoffending, let him pay for him at his full worth. . if an esne's eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne, let him make bot with shillings. . let [compensation for] weg reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him make twofold bot [twice the value of the stolen goods]." - judicial procedure - 	the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. 	there were occasional meetings of "hundreds", which were households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. 	the druid priests decided all disputes of the celts. - - - chapter - - - - the times: - - 	the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". 	a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . 	farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. 	offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were denarii to the solidus and soldi to the pound of silver. these denominations were taken by england as pennies to the shilling and shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. 	everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. they were called "tithes" and were spent for church repair, the clergy, and poor and needy laborers. local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. 	the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. 	 man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. 	there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. 	a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. 	the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. 	men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. 	most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. 	fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. 	the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. 	there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. 	in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. 	the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. 	danish vikings made several invasions in the s for which a danegeld tax on land was assessed on everyone every ten to twenty years. the amount was determined by the witan and was typically s. per hide of land. (a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough.) it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. 	alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. 	alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. 	in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. 	king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. 	the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." 	sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." 	alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. 	alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . be not so mad as to tell your friend all your thoughts. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. 	to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. 	a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. 	there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. 	alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. 	after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. 	under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he presided over the shire court. he received one-third of the fines from the profits of justice and collected as well a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. 	under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has soke [soc] jurisdiction over them. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [household or messuage] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. 	it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. 	marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. 	great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. 	for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. 	fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. 	mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. 	there were some ale houses, probably part of certain dwellings. 	the danegeld tax of s. and later s. upon every hide of land came to be imposed for maintaining forces sufficient to clear the british seas of danish pirates or to buy off the ravages of danish invaders. - the law - 	alfred issued a set of laws to cover the whole country, which were drawn from the best laws of each region. there was no real distinction between the concepts of law, morals, and religion. 	the importance of telling the truth and keeping one's word are expressed by this law: " . at the first we teach that it is most needful that every man warily keep his oath and his wed. if any one be constrained to either of these wrongfully, either to treason against his lord, or to any unlawful aid; then it is juster to belie than to fulfill. but if he pledge himself to that which is lawful to fulfill, and in that belie himself, let him submissively deliver up his weapon and his goods to the keeping of his friends, and be in prison forty days in a king's tun: let him there suffer whatever the bishop may prescribe to him..." let his kinsmen feed him, if he has no food. if he escapes, let him be held a fugitive and be excommunicate of the church. 	the word of a bishop and of the king were incontrovertible without an oath. 	the ten commandments were written down as this law: "the lord spake these words to moses, and thus said: i am the lord thy god. i led thee out of the land of the egyptians, and of their bondage. . love thou not other strange gods above me. . utter thou not my name idly, for thou shalt not be guiltless towards me if thou utter my name idly. . remember that thou hallow the rest day. work for yourselves six days, and on the seventh rest. for in six days, christ wrought the heavens and the earth, the seas, and all creatures that are in them, and rested on the seventh day: and therefore the lord hallowed it. . honor thy father and thy mother whom the lord hath given thee,that thou mayst be the longer living on earth. . slay thou not. . commit thou not adultery. . steal thou not. . say thou not false witness. . covet thou not thy neighbor's goods unjustly. . make thou not to thyself golden or silver gods." 	if any one fights in the king's hall, or draws his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. if he escape, and be taken again, let him pay for himself according to his wergeld, and make bot for the offense, as well wer as wite, according as he may have wrought. 	if a man fights before a king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this s. to the ealdorman as wite. if he disturbs the folkmote by drawing his weapon, s. to the ealdorman as wite. if any of this happens before a king's ealdorman's junior, or a king's priest, s. as wite. 	if any one fights in a ceorlish man's dwelling, let him make bot of s. to the ceorl. if he draws his weapon but doesn't fight, let it be half of that. if, however, either of these happens to a man with a wergeld of s., let it increase threefold of the ceorlish bot; and if to a man with a wergeld of s., let it increase twofold of the bot of the man with a wergeld of s. breach of the king's dwelling [breaking and entering] shall be s.; an archbishop's, s.; any other bishop's, and an ealdorman's, s.;. a s. wergeld man's, s.; a s. wergeld man's, s.; and a ceorl's s. 	if any one plot against the king's life, of himself, or by harboring of exiles, or of his men; let him be liable with his life and in all that he has; or let him prove himself according to his lord's wer. 	if any one with a band or gang of men slays an unoffending man, let him who acknowledges the deathblow pay wer and wite. if the slain man had a wergeld of s, let every one who was of the gang pay s. as gangbot. if he had a wergeld of s., let every one pay s. as gangbot. if he had a wergeld of s., let every one pay s. if a gang does this, and afterwards denies it on oath, let them all be accused, and let them then all pay the wer in common; and all, one wite, such as shall belong to the wer. 	if any one lends his weapon to another so he may kill some one with it, they may join together if they will in the wer. if they will not join together, let him who lent the weapon pay of the wer a third part, and of the wite a third part. 	with his lord a man may fight free of liability for homicide, if any one attack the lord: thus may the lord fight for his man. likewise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. and a man may fight free of liability for homicide, if he finds another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife. if a man knows his foe is sitting at his home, he may not fight with him before he demands justice of him. if he has such power that he can beset his foe, and besiege him within, let him keep him within for seven days, and not attack him if he will remains within. and, then, after seven days, if he surrenders, and gives up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and his friends. but if he does not have sufficient power to besiege him within, let him ride to the ealdorman, and beg aid of him. if he will not aid him, let him ride to the king before he fights. in like manner also, if a man come upon his foe, and he did not know beforehand that he was staying at his home; if he is willing to give up his weapons, let him be kept for thirty days, and let notice of him be given to his friends; if he will not give up his weapons, then he may attack him. if he is willing to surrender, and to give up his weapons, and any one after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his compensation to his kin. every church shall have this peace: if a fugitive flee to one for sanctuary, no one may drag him out for seven days. if he is willing to give up his weapons to his foes, let him stay thirty days, and then let notice of him be given to his kinsmen. if any man confess in church any offenses which had not been before revealed, let him be half forgiven. 	if a man from one holdgetael wishes to seek a lord in another holdgetael, let him do it with the knowledge of the ealdorman whom he before followed in his shire. if he does it without his knowledge, let him who treats him as his man pay s. as wite, one-half to the king in the shire where he before followed and one-half in that into which he comes. if he has done anything wrong where he was before, let him make bot for it who has there received him as his man; and to the king s. as wite. 	"if any one steals so that his wife and children don't know it, he shall pay shillings as wite. but if he steals with the knowledge of all his household, they shall all go into slavery. a boy of ten years may be privy to a theft." 	"if one who takes a thief, or holds him for the person who took him, lets the thief go, or conceals the theft, he shall pay for the thief according to his wer. if he is an eorldormen, he shall forfeit his shire, unless the king is willing to be merciful to him." 	if any one steal in a church, let him pay the lawful penalty and the wite, and let the hand be struck off with which he did it. if he will redeem the hand, and that be allowed him, let him pay as may belong to his wer. 	if a man slanders another, the penalty is no lighter thing than that his tongue be cut out; which must not be redeemed at any cheaper rate than it is estimated at according to his wer. 	if one deceives an unbetrothed woman and sleep with her, he must pay for her and have her afterwards to wife. but if her father not approve, he should pay money according to her dowry. 	"if a man seize hold of the breast of a ceorlish woman, let him make bot to her with shillings. if he throw her down and do not lie with her, let him make bot with shillings. if he lie with her, let him make bot with shillings. if another man had before lain with her, then let the bot be half that. if this befall a woman more nobly born, let the bot increase according to the wer." 	"if any one, with libidinous intent, seize a nun either by her raiment or by her breast without her leave, let the bot be twofold, as we have before ordained concerning a laywoman." 	"if a man commit a rape upon a ceorl's female slave, he must pay bot to the ceorl of shillings and a wite [fine to the king] of shillings. if a male theow rape a female theow, let him make bot with his testicles." 	for the first dog bite, the owner pays shillings, for the second, shillings, for the third, shillings. 	an ox which gores someone to death shall be stoned. 	if one steals or slays another's ox, he must give two oxen for it. 	the man who has land left to him by his kindred must not give it away from his kindred, if there is a writing or witness that such was forbidden by those men who at first acquired it, and by those who gave it to him; and then let that be declared in the presence of the king and of the bishop, before his kinsmen. - judicial procedure - 	cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation. 	in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. if these "compurgators" were too few, usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. 	if the witnesses failed, the defendant was told to go to church and to take the sacrament only if he or she were innocent. if he or she took the sacrament, he or she was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. the results of the ordeal were taken to indicate the will of god. presumably a person convicted of murder, i.e. killing by stealth, or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] would be hung and his possessions confiscated. a bishop's oath was incontrovertible. accused archbishops and bishops could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of three compurgators of their rank or, for more serious offenses, undergo the ordeal of the consecrated morsel. for this, one would swallow a morsel; if he choked on it, he was guilty. 	any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. 	this is a lawsuit regarding rights to feed pigs in a certain woodland: 	"in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." - - - chapter - - - - the times: - - 	there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. 	kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the armor of a man killed, which went to the king. the heriot of a thegn who had soken [or jurisdiction over their own lands] came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. 	there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. 	staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. 	there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". 	ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. 	a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. 	simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. 	for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. 	most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. 	clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. 	people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. 	the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. 	the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. 	other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. 	some lords had markets on their land, for which they charged a toll for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox was still worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. 	salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. 	some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. 	an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." 	a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." 	at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark, across the thames river from london,was reachable by a bridge. southwark contained sleazy docks, prisons, gaming houses, and brothels. 	guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ) obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. 	many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. 	the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sac and soke [cause and suit] jurisdiction over their men. 	edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. 	every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed the sheriff and justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. 	later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. 	towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed, and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. 	edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor". he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. 	edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. 	the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. 	the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. 	the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. 	a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac and soke [possession of jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on the estate] and team [probably the right to hold a court to determine the honesty of a man accused of illegal possession of cattle or of buying stolen cattle by inquiring of the alleged seller or a warrantor, even if an outsider], and infangenetheof [the authority to hang and take the chattels of a thief caught on the estate]. 	the town of coventry consisted of a large monastery estate and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. 	every man was expected to have a lord to whom he gave fealty. he swore by this fealty oath: "by the lord, before whom this relic is holy, i will be to faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he was to be treated as a fugitive and could be slain, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. 	marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. 	women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: 	"here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." 	this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." 	nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. 	the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. 	it was believed that there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. 	god intervened in daily life, especially if worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. when someone was said to have the devil in him, people took it quite literally. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. since natural causes of events were unknown, people attributed events to wills like their own. illness was thought to be caused by demons. people hung charms around their neck for cure and treatments of magic and herbs were given. some had hallucinogenic effects, which were probably useful for pain. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche". blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. 	it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. 	the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. there were riddles such as: i am a strange creature, for i satisfy women ... i grow very tall, erect in a bed. i'm hairy underneath. from time to time a beautiful girl, the brave daughter of some fellow dares to hold me grips my reddish skin, robs me of my head and puts me in the pantry. at once that girl with plaited hair who has confined me remembers our meeting. her eye moistens. what am i? an onion. a man came walking where he knew she stood in a corner, stepped forwards; the bold fellow plucked up his own skirt by hand, stuck something stiff beneath her belt as she stood, worked his will. they both wiggled. the man hurried; his trusty helper plied a handy task, but tired at length, less strong than she, weary of the work. thick beneath her belt swelled the thing good men praise with their hearts and purses. what am i? a milk churn. 	the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome. ecclesiastical benefices were to pay church- scot, a payment in lieu of first fruits of the land, to the pope. - the law - 	the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: 	every freeman who does not hold land must find a lord to answer for him. the act of homage was symbolized by holding his hands together between those of his lord. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) 	"and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) 	every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). 	everyone was to take an oath not to steal, which one's surety would compel one to keep. 	no one may receive another lord's man without the permission of this lord and only if the man is blameless towards every hand. the penalty is the bot for disobedience. no lord was to dismiss any of his men who had been accused, until he had made compensation and done right. 	"no woman or maiden shall be forced to marry a man she dislikes or given for money." 	"violence to a widow or maiden is punishable by payment of one's wergeld." 	no man may have more wives than one. 	no man may marry among his own kin within six degrees of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's, or his god- mother, or a divorced woman. incest is punishable by payment of one's wergeld or a fine or forfeiture of all his possessions. 	grounds for divorce were mutual consent or adultery or desertion. adultery was prohibited for men as well as for women. the penalty was payment of a bot or denial of burial in consecrated ground. a law of canute provided that if a wife was guilty of adultery, she forfeited all her property to her husband and her nose and ears, but this law did not survive him. 	laymen may marry a second time, and a young widow may again take a husband, but they will not receive a blessing and must do penance for their incontinence. 	prostitutes were to be driven out of the land or destroyed in the land, unless they cease from their wickedness and make amends to the utmost of their ability. 	neither husband nor wife could sell family property without the other's consent. 	if there was a marriage agreement, it determined the wife's "dower", which would be hers upon his death. otherwise, if a man who held his land in socage [owned it freely and not subject to a larger landholder] died before his wife, she got half this property. if there were minor children, she received all this property. 	inheritance of land to adult children was by the custom of the land held. in some places, the custom was for the oldest son to take it and in other places, the custom was for the youngest son to take it. usually, the sons each took an equal portion by partition, but the eldest son had the right to buy out the others as to the chief messuage [manor; dwelling and supporting land and buildings] as long as he compensated them with property of equal value. if there were no legitimate sons, then each daughter took an equal share when she married. 	in london, one-third of the personal property of a decedent went to his wife, one-third went to his children in equal shares, and one-third he could bequeath as he wished. 	"if a man dies intestate [without a will], his lord shall have heriot [horses, weapons, shields, and helmets] of his property according to the deceased's rank and [the rest of] the property shall be divided among his wife, children, and near kinsmen." 	a man could justifiably kill an adulterer in the act with the man's wife, daughter, sister, or mother. in kent, a lord could fine any bondswoman of his who had become pregnant without his permission [childwyte]. 	a man could kill in defense of his own life, the life of his kinsmen, his lord, or a man whose lord he was. the offender was "caught red-handed" if the blood of his victim was still on him. self-help was available for hamsocne [breaking into a man's house to assault him]. 	murder is punished by death as follows: "if any man break the king's peace given by hand or seal, so that he slay the man to whom the peace was given, both his life and lands shall be in the king's power if he be taken, and if he cannot be taken he shall be held an outlaw by all, and if anyone shall be able to slay him he shall have his spoils by law." the king's peace usually extended to important designated individuals, churches, assemblies, those traveling to courts or assemblies, and particular times and places. often a king would extend his peace to fugitives from violent feuds if they asked the king, earls, and bishops for time to pay compensation for their misdeeds. from this came the practice of giving a portion of the "profits of justice" to such men who tried the fugitive. the king's peace came to be extended to those most vulnerable to violence: foreigners, strangers, and kinless persons. 	"if anyone by force break or enter any man's court or house to slay or wound or assault a man, he shall pay s. to the king as fine." 	"if anyone slay a man within his court or his house, himself and all his substance are at the king's will, save the dower of his wife if he have endowed her." 	if a person fights and wounds anyone, he is liable for his wer. if he fells a man to death, he is then an outlaw and is to be seized by raising the hue and cry. and if anyone kills him for resisting god's law or the king's, there will be no compensation for his death. 	a man could kill a thief over twelve years in the act of carrying off his property over d., e.g. the thief hand-habbende [a thief found with the stolen goods in his hand] or the thief back-berend [a thief found carrying stolen goods on his back]. 	cattle theft could be dealt with only by speedy pursuit. a person who had involuntarily lost possession of cattle is to at once raise the hue and cry. he was to inform the hundredman, who then called the tithingmen. all these neighbors had to then follow the trail of the cow to its taker, or pay d. to the hundred for the first offense; and d. for the second offense, half to the hundred and half to the lord; and half a pound [ s.] for the third offense; and forfeiture of all his property and declared outlaw for the fourth offense. if the hundred pursued a track into another hundred, notice was to be given to that hundredman. if he did not go with them, he had to pay s. to the king. 	if a thief was brought into prison, he was to be released after days if he paid his fine of s. his kindred could become his sureties, to pay according to his wer if he stole again. if a thief forfeited his freedom and gave himself up, but his kindred forsook him, and he does not know of anyone who will make bot for him; let him then do theow-work, and let the wer abate for the kindred. 	measures and weights of goods for sale shall be correct. 	every man shall have a warrantor to his market transactions and no one shall buy and sell except in a market town; but he shall have the witness of the portreeve or of other men of credit, who can be trusted. 	moneyers accused of minting money outside a designated market were to go to the ordeal of the hot iron with the hand that was accused of doing the fraud. if he was found guilty, his hand that did the offense was to be struck off and be set up on the money- smithy. 	no marketing, business, or hunting may be done on sundays. 	no one may bind a freeman, shave his head in derision, or shave off his beard. shaving was a sign of enslavement, which could be incurred by not paying one's fines for offenses committed. 	no clergy may gamble or participate in games of chance. 	the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." - ) foreigners with wine or blubber fish or other goods and their tolls. (foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships.) " . if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's house without permission and commits a breach of the peace of the worst kind and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) - judicial procedure - 	there were courts for different geographical communities. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. 	a shire was a larger area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremote". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the county fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. 	the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. a reeve, sometimes the sheriff, presided over local criminal and peace and order issues ["leet jurisdiction", which derived from sac and soc jurisdiction] and civil cases at the hundred court. all residents were expected to attend the leet court. the sheriff usually held each hundred court in turn. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. 	"no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property until he has appealed for justice in the hundred court and shire court". 	in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. 	the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. 	"and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." 	this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." 	courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge and to hand and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. 	a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. 	the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. 	before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. 	in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court [for minor criminal matters]. 	the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. specially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. 	the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. 	the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." 	if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld be given; and be the wite of half value for theows. - - - chapter - - - - the times: - - 	william came from normandy to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. 	at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. 	declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by placing their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. 	the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. 	the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. this example pacified others. his rule was strong, resolute, wise, and wary. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. 	the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. 	the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin [rightful occupation] of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. 	the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. 	this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. 	this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. 	english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. 	a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. 	the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. 	some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. 	the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. 	lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. 	markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. 	the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. 	norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. 	those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. 	great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. 	the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. 	men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. 	when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. 	london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. 	the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." the norman word "mayor" replaced "portreeve". 	so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. 	under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. 	the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne [jurisdiction over breach of the right of security and privacy in a man�s house, e.g. by forcible entry],, ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. 	every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. 	the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court. 	the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. 	the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. 	sheriffs became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the sheriff, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. over time, the powers of the sheriffs slowly declined. 	royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. 	the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. 	laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." 	ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. 	that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." 	the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. 	in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. this survey resulted in the first national tax system of about s. per hide of land. 	the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. 	the courts of the king and barons became schools of chivalry wherein seven year old noble boys became pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. 	the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. 	astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. 	the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." 	the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. 	william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. - the law - 	the norman conquerors brought no written law, but affirmed the laws of the nation. two they especially enforced were: . anyone caught in the act of digging up the king's road, felling a tree across it, or attacking someone so that his blood spilled on it shall pay a fine to the king. . all freemen shall have a surety who would hand him over to justice for his offenses or pay the damages or fines due. if an accused man fled, his surety would have a year to find him to obtain reimbursement. 	the conquerer proclaimed that: no cattle shall be sold except in towns and before three witnesses. for the sale of ancient chattels, there must be a surety and a warrantor. no man shall be sold over the sea. (this ended the slave trade at the port of bristol.) the death penalty for persons tried by court is abolished. - judicial procedure - 	"ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conquerer did not preside over this court, an appeal could be made to him. 	the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. 	the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" under their new owners, who conducted a manor court. 	the conquerer's royal court was called the "curia regis". when the conquerer wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conquerer sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conquerer allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the curia regis heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. 	a dispute between a norman and an english man over land or a criminal act could be decided by trial by combat [battle]. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. 	london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. 	the normans, as foreigners, were protected by the king's peace. the entire hundred was the ultimate surety for murder and would have to pay a "murdrum" fine of pounds [ marks] for the murder of any norman, if the murderer was not apprehended by his lord within a few days. the reaction to this was that the murderer mutilated the corpse to make identification of ethnicity impossible. so the conquerer ordered that every murder victim was assumed to be norman unless proven english. this began a court custom in murder cases of first proving the victim to be english. 	the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." - - - chapter - - - - the times: - - 	king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. 	henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. 	queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. 	henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother, william ii. 	"henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has beunjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother, but he shall henceforth redeem it by means of a just and lawful 'relief`. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful 'relief`. [ .] if any of my barons or of my tenants shall wish to give in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her parents], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that my barons shall act likewise towards the sons and daughters and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother, except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all work; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." 	henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". 	the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. 	a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. 	barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. 	the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. 	the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. 	about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. 	the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. 	the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation. for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. 	the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. 	the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married, he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. 	a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. 	markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. 	the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows and little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft".in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. 	since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. 	games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. 	the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. 	the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. 	merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. 	towns, as distinct from villages, had permanent markets. as towns grew, they paid a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burghers at a fee farm rent equal to the sum thus deducted from the amount due from the county. such a town was called a "borough" and its citizens or landholding freemen "burgesses". the freemen were �free of the borough�, which meant hey had exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. 	craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london). they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. king henry standardized the yard as the length of his own arm. 	trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. 	london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. 	middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . and the citizens shall not take part in any [civil] case whatsoever outside the city walls. ) and they shall be exempt from the payment of scot and danegeld and the murder fine. ) and none of them shall take part in trial by combat. ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. ) and all the citizens of london and all their effect [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. ) and the hustings [court] shall sit once a week on monday. ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." 	the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. 	newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] pleas which arise in the borough shall be held and concluded there, except pleas of the crown. [ ] if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [ ] if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." 	the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. 	plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. 	the intellectual world included art, secular literature, law, and medicine. there were about physicians. 	the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. 	forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. 	a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. - the law - 	henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) 	counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." 	the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." 	a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. 	debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." 	past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day. the "liberi quadripartitus" aimed to include all english law of the time. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. 	church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. - judicial procedure - 	courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. 	the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters. the most serious offenses: murder, robbery, rape, abduction, arson, treason, and breach of fealty, were now called felonies. other offenses were: housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still by compurgation. trial by combat was relatively common. 	these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. 	the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. 	slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. 		henry began the use of writs to intervene in civil matters, such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. the crown used its superior coercive power to enforce the legal decisions of other courts. these writs allowed people to come to the royal court on certain issues. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices, called justiciars. also, he sent justices out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions. 	the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. 	the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. 	the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. 	the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. 	the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. 	the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. 	the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". 	boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. 	wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. 	the ecclesiastical courts dealt, until the time of henry viii, with family matters such as marriage, annulments, marriage portions, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries, sacrilege, blasphemy, heresy, tithe payments, church fees, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. it provided guardianship of infants during probate of their personal property. trial was basically by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. an alleged offender could be required to answer questions under oath, thus giving evidence against himself. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. penalties could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fines, and imprisonment in a "penitentiary" to do penance. the ultimate punishment was excommunication with social ostracism. then no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation of one's belief in the tenets of christianity. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. excommunication was usually imposed for failure to obey an order or showing contempt of the law or of the courts. it required a hearing and a written reason. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy [speaking ill of god] was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. 	there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. - - - chapter - - - - the times: - - 	king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. 	henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. 	henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. 	henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. 	he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. 	the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices. they were simply sold or rented, until public pressure resulted in a requirement of ability. 	henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. 	henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. 	heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. 	a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. 	henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. 	london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. 	in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. 	london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. 	outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. 	men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks [ s. d.] of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark [ s. d.] and the workman of the cloth was also punished by the guild bailiffs according to guild custom.the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. 	paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. 	thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. 	in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. 	st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. 	trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. 	about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. 	bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. 	theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. 	every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements, for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion which is given with a daughter in marriage, that is not bound to service] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. 	in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. 	intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. 	the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. 	in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. 	london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s. [two marks] to have a guild. the shoemakers paid s. [five marks]. 	in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. 	sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account.and they shall have my firm peace." 	henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." 	john, when he was an earl and before he became king, granted these liberties to bristol about : ) no burgess may sue or be sued out of bristol. ) the burgesses are excused from the murder fine (imposed by the king or lord from the hundred or town where the murder was committed when the murderer had not been apprehended). ) no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) no one shall be condemned in a matter of money, unless according to the law of the hundred, that is, forfeiture of s. ) the hundred court shall be held only once a week. ) no one in any plea may argue his cause in miskenning. ) they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at bristol, and force him to restore it. ) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. 	we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. 	newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. 	ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." 	henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer (e.g. their merchant guilds); all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. 	mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." 	a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. 	when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. 	henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the fyrd, which was a military draft of every freeman to serve in defense of the realm. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a �posse comitatus� to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. 	however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. 	new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. 	barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. 	henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. 	great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. 	the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender [dry food for livestock] of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheepskins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." 	king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from moveable goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.the crusaders' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. 	at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal and moveable goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom.in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta correcting his abuses. for instance, since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. - the law - 	no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. 	no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. 	a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. 	a man [or woman] may not will away his land, but he may sell it during his lifetime. 	the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. 	if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. 	dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. 	a widower had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. 	the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. 	heirs were firstly sons, then daughters, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. 	female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. 	bastards were not heirs, even if their father married their mother after birth. 	any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. 	heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. 	when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will [intestate], all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. 	a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. 	usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. 	a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. 	a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. 	all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. 	if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. 	if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. 	passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. - judicial procedure - 	henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law, traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of those attending, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. 	tenants of manors and of escheats in royal hands, who had been excused from the monthly county court, were required to appear. side by side with the reeve and four men of the rural townships appeared the twelve legal men of each of the chartered boroughs which owed no suit to the ordinary county court. in the formation of the jury of presentment for criminal cases, each hundred sent twelve legal men and each township four to make report to the justices. women did not serve on juries. compurgation was not used; accused persons were sent directly to the ordeal. in , twelve knights or legal men from each hundred answer before any itinerant justice for their hundred in all criminal, civil, and fiscal cases. all who are bound to attend before the itinerant justices are, in the forest counties, compelled to attend the forest courts. 	the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), ) the repression of serious crime, and ) the relations between the lay and the ecclesiastical courts. 	the doctrine of tenure applied universally to the land law formed the basis for judicial procedure in determining land rights. those who held lands "in fee" from the king in turn subinfeudated their land to men of lesser rank. the concept of tenure covered the earl, the knight (knight's service), the church (frank-almoin [free alms]), the tenant who performed labor services, and the tenant who paid a rent (socage). other tenures were: serjeanty [providing an implement of war or performing a nonmilitary office] and burgage. all hold the land of some lord and ultimately of the king. 	henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. 	an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. 	then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. 	there was also a writ for issues of inheritance of land called "mort d'ancestor". by law the tenure of a person who died seised of a tenure in a lord's demesne which was hereditary [seisin of fee] returned to the lord, who had to give it to the heir of the decedent. if the lord refused and kept it for himself or gave it to someone else, the heir could sue in the royal court, which used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. 	eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. 	itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. 	this assize procedure extended in time to all other types of civil actions. 	also removable to the royal court from the county courts were issues of a lord's claim to a person as his villein (combat not available), service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. 	the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. 	henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required royal justices to routinely ask selected representatives: knights or other landholders, of every neighborhood if any person were suspected of any murder, robbery, theft, etc. a traveling royal justice or a sheriff would then hold an inquest, in which the representatives answered by oath what people were reputed to have done certain crimes. they made such inquiries through assizes of presentment, usually composed of twelve men from each hundred and the four best men of each township. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. they consisted of representatives of the hundreds, usually knights, and villages who testified under oath to all crimes committed in their neighborhood, and indicted those they suspected as responsible and those harboring them. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent to the ordeal. there was no trial by compurgation in the royal courts, which was abolished by henry. if determined guilty, he forfeited his chattels to the king and his land reverted to his landlord. 	if a man failed at the ordeal, the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. 	as before, a person could also be brought to trial by the accusation of the person wronged. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. 	the ordeal was abolished by the lateran council of . 	criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. all murders were now punished alike because the applicability of the murdrum couldn't be determined since it was impossible to prove that the slain man had been english. 	trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. one found guilty of it could be fined and imprisoned as well as amerced. 	housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. 	the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. 	the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. 	anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. 	the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. 	as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his moveable goods and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". 	the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. 	the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. the county and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights make the county courts work as legal and administrative agencies of the crown. 	the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. 	admiralty issues (since no assize could be summoned on the high seas), and tenement issues of land held in frankalmoin ["free alms" for the poor to relieve the king of this burden], where the tenant was a cleric were heard in the ecclesiastical courts. 	before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. 	the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses. trial was still by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. 	the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. 	the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. 	also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. 	in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. 	in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a rock. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. 	chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. 	there are personal actions such as "debt" for specific chattel or specific sum of money. this splits into two actions. the detinue award is for the specific chattel or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. these personal actions were initiated in common law courts by their respective writs. 	these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark [ s.] and put her land in pledge in his court and did not want to render the / mark [ s.]. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. 	this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. 	a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford and alan the foresters, whom he [walter] had appealed of the crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark.pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of trevithow, john of glin, william of dunham, thomas, osbert's son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of.[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his [richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute.therefore let her be in mercy and let her be arrested. to judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby and william miller of the death of her father and of a wound given to herself. and she has a husband, robert franchenay, who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.] [to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. - - - chapter - - - - the times - - 	baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. the hall had a hearth for fire in the center of the room if the hall was one story high. sometimes the lord had a room with a sleeping loft above it. if the hall was more than one story high, it had a fireplace at one end so that the smoke could go up and out the roof. other rooms each had a fireplace. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. 	furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. 	nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. 	the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. 	as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. 	manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. 	husbandry land held in villeinage was inherited according to the custom of its manor as administered in the lord�s manorial court. (the royal courts had jurisdiction of land held in socage. i.e. free tenure.) the heir could be the oldest son, the youngest son, a son chosen by the father to succeed him, or divided among the sons. if there were no sons, one of the daughters inherited the land or it was divided among all the daughters. if there were no heirs, the land went back to the lord. land could not be sold or alienated so that the heir did not inherit, without the consent of the lord. manorial custom also determined the manner of descent of goods and chattels. a common custom for a villein was that his best beast go to his lord as heriot and his second best beast go to the parish priest as mortuary. then, after debts and burial expenses had been paid, a number of tools and utensils needed for husbandry and housekeeping went with the land to its heir. these were the �heirlooms�, �loom� in old english meaning tool. this usually included, for a holding of more than acres, a coulter, a plowshare, a yoke, a cart, an axe, a cauldron, a pan, a dish, and a cask. finally, the remaining goods and chattels went one-third to the widow, one-third to his children except for the heir to the land, and one-third according to the deceased�s last will and testament. a son might take his share before the death of his father in order to go out into the world and seek his fortune, for instance in the church or military, upon which event the father had to pay his lord a fine for his son permanently leaving the manor. many country boys became bound apprentices in nearby boroughs or farm laborers. others married heiresses of land. by the custom of �curtesy of the nation�, he held this land for his lifetime, even if his wife predeceased him. if a man remained on the family land, he had no right to marry. often, there were agreements over land holdings that were recorded in the manor books. for instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. an heir usually did not marry until after receiving his land. manorial custom determined whether a father�s consent was necessary for a son or daughter to marry, the nature of any agreement (�trothplight�) between the families as to lands and goods brought to the marriage, the amount of her marriage portion, and the son�s endowment (her �dower�) of lands and goods promised to the bride at the church door that would provide for her support after his death. if dower was not specified, it was understood to be one-third of all lands and tenements. at the next hallmote, if manorial custom required it, the son would pay a fine to his lord for entry onto the land and for license to marry. from , priests taught that betrothal and consummation constituted irrevocable marriage. 	some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. 	looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. 	most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. 	county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff of the county had power to raise a posse of armed men to restore order. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish [the geographical area of a church�s members] level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. 	county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. 	reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french, and later latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. 	there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. 	a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. 	there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. 	in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. 	the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: [ ] "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. [ ] there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. [ ] there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden [ ] the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. [ ] the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. [ ] the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. [ ] a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." 	educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. 	roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. 	he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. 	bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. 	he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. 	bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. 	the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. 	in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . 	the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. 	london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. 	the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. 	the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. 	in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. 	english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. 	churches had stained glass windows. 	newcastle-on-tyne received these new rights: . and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. . and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying the due customs and debts, and any impediment to these rights is prohibited. . we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. 	the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / th of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. 	the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. 	by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for crossbowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. 	while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / th tax on their moveable property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. - the law - 	the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. 	the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks [ pounds or s.]; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petit serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (court of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [service of the shield, a tenure in knights� service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. 	statutes which were enacted after the magna carta follow: 	nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." 	anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. 	widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. 	freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. 	"grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." 	"a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) 	"if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." 	"interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." 	the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. 	the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. 	by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." 	"an english penny [ d.], called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." 	measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. 	goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. 	the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. 	forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." 	the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. 	the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. 	after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". 	church law required that planned marriages be publicly announced by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. 	henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. 	bracton defines the requirements of a valid and effective gift as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." 	in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. - judicial procedure - 	the royal court split up into several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the title of the chief justiciar of england changed to the chief justice of england. the court of common pleas heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, collecting the crown's revenue and enforcing the crown's rights. 	appeals from these courts could be made to the king and/or his small council, which was the curia regis and could hear any plea of the land. in , the justiciar as the principal royal executive officers and chief presiding officer over the curia regis ended. in , a chief justiciar was appointed the hold pleas before the king. henceforth, a justiciar was a royal officer who dealt only with judicial work. about the same time the presiding justice of the court of common pleas also came to be styled justiciar or chief justice. justices were no longer statesmen or politicians, but simply men learned in the law. 	membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. 	crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. 	between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. 	royal itinerant justices traveled to the counties every seven years. there, they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. 	royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. 	justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. there were pleas of trespass and debt, unjust seizure and detention of beasts, rent collection, claims of fugitive villeins and their goods, nuisances, and encroachments. the sheriff still constitutes and conducts the court. the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. 	twice a year the sheriff visited each hundred in the county to hold a turn [court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures.]. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. 	the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue [detention of personal property which originally was rightfully acquired] and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. a paid bailiff had responsibility for the hundred court, which met every three weeks. 	still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, edward the confessor's laws, and kent's childwyte [fine for begetting a bastard on a lord's female bond slave]. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually carts, cart teams, horses, boats, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. 	five cases are: case: "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is s. d. deodand." case: "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." case: "william le hauck killed edric le poter and fled, so he is to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." case: "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, so he is quit." case: william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. 	other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". 	courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. 	debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. 	trial by combat is still available, although it is extremely rare for it to take place. 	the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. 	by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. 	various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. 	trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods, for goods carried off from the plaintiff's possession and can be brought by bailees. 	in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. (by this will later be expanded the action of trespass called "trespass on the case".) 	various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonor s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue.therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen...and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men....because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge,geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. ....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. - - - chapter - - - - the times: - - 	king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. 	at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. 	wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. 	most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all freeholders who held land of the value of at least s. to receive knighthood at the king's hands. 	at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. 	riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. 	the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. 	in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. 	there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. 	lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. 	the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. 	in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. 	in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. 	queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. 	farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. 	although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. 	money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. 	the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." 	another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. 	often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. 	under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. 	people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven after judgment by god at death if sin was avoided. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. 	unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. 	a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." 	villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. 	many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. 	in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. 	when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. 	a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. 	in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. 	the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. 	as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. 	in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. 	some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. 	a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. 	women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. 	regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. 	edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. 	the model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote because the landowner had a stake in the country, a material security for his good behavior. 	parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the count court. the higher clergy remained in parliament because they were feudal vassals of the king. 	edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. 	the king still exercised a power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. 	parliament soon was required to meet at least once a year at the great hall at westminster located beside the royal palace. london paid its representatives s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking became a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. 	the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. 	in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. 	teh magna carta is the first statute. from , statutes were recorded in a statute roll as they were enacted. 	by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. 	the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. 	there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. 	as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. 	edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. 	after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. 	by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. 	by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. 	as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. 	foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. 	in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . 	in , the commons voted a tax of / th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. 	alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. - the law - 	edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. 	"no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." 	"no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." 	no distress shall be taken of ploughing-cattle or sheep. 	no loan shall be made for interest. 	if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. 	aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s. [yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. 	a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. 	dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. 	a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. 	when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. 	lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. 	if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. 	young salmon shall not be taken from waters in the spring. 	the ecclesiastical law had a doctrine for women-covert, i.e. women under the protection or coverture of a husband. it held that chattels of a woman who married vested in her husband, but he could not dispose of them by will. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. if she was a merchant when she married, she could still sell her goods in the open market. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was liable for the debts of his wife, even if incurred before the marriage. he was answerable for her torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. but the courts would protect her from death, serious bodily harm, or his failure to supply her the necessities of life. promises under oath by married women were not recognized. a conveyance or agreement of a married woman was void. these principles held only if she was under the protection of her husband, i.e. a woman-covert, and not if they lived separately, for instance if he went to sea. if separated, she had a right to alimony from him to maintain herself. 	a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) 	one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a fee simple conditional holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple and land held for life. the donor could give directions that an estate of inheritance go to a man or woman and certain classes of particular heirs rather than reverting to himself. a fee tail was often given to a man and the issue of his body. no donee or nor his heirs could alienate the land held in fee tail.interests in remainder or reversion of estates in land replaced the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs. 	anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. 	"all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. 	villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. 	accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) 	only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. 	killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) 	any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) 	trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. 	"forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. 	a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) 	"in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." 	anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. 	no market town shall take an outrageous toll contrary to the common custom of the nation. 	since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) 	the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. 	the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. 	freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. 	the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. 	each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a feme covert [woman-covert], who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. 	borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." 	in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. 	by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) 	"concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. 	some statutes applied only to kent county, which had a unique position between london and the continent. money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. 	one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. 	the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. - judicial procedure - 	the writ of quo warranto [by what right] is created, by which all landholders exercising jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. 	the supreme court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. 	in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve men from each hundred and four men from each town. the assize then bifurcated into the grand jury of twelve to twenty-four men and the petty jury or jury of verdict of twelve men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. 	felony included such crimes as homicide, arson, rape, robbery, burglary, and larceny. secret homicide was still murder. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these six offenses could be prosecuted by indictment or private accusation by an individual. the penalties involved loss of life or limb or outlawry; a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day, after which it escheated to the felon's lord. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. 	notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. 	the most common cases in the court of common pleas were "detinue" [wrongful detention of a good or chattel which had been loaned, rented, or left for safekeeping with a "bailee", but belonged to the plaintiff], "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers [right to use during a lease] of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. 	the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. 	breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. 	coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. 	the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had been imprisonment, usually followed by ransom. 	trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. it came to be that defendants no longer request assizes but are automatically put to them. 	numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. 	the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. 	disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". 	ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and succession [no will] to chattels. 	there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. 	the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. 	when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. 	in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. manor court law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. 	some pleas in the manors of the abbey of bec were: . hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . william derwin for a trespass, d.; pledge, william sperling. . hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . john palmer is put in seisin of his father's tenement and gives the lord s. d. as entry money. . william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . william frith for subtraction of work, d. john reginald for the same, d. john of senholt, d. william ketelburn, d. . for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following: godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. t . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. 	the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. 	wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: 	"tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." 	the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." 	a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions. they sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. 	there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. 	in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. - - - chapter - - - - the times: - - 	waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was then unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business weere interrupted by theplague and ceased for two years. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. 	farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been - d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquished their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. 	villeins spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." 	groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. 	the office of justice of the peace was created for every county to deal with rioting and vagrants. cooperation by officials of other counties was mandated to deal with fugitives from its justice. 	the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . 	when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. 	in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. 	the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high justice of the peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. 	the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. 	efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. 	due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. 	the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the fireplace end of the great hall, where there was a high table. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. 	some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. 	town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. children's sweets included gingerbread and peppermint drops. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. 	new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. 	towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. 	after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. 	for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. 	the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. 	in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became in the first guilds to receive charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. 	in all towns, the organization of craft associations spread rapidly downwards through the trades. these associations sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). 	in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". 	some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. 	many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. 	the rules of the company of glovers were: . none but a freeman of the city shall make or sell gloves. . no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . no one shall entice away the servant of another. . if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the wardens, he shall be taken before the mayor and aldermen. . no one may sell his goods by candlelight. . any false work found shall be taken before the mayor and aldermen by the wardens. . all things touching the trade within the city between those who are not freemen shall be forfeited. . journeymen shall be paid their present rate of wages. . persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. 	cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." 	smithfield was a field outside the city gates at which horses were sold and raced. in , the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." 	many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. stairwells between floors had narrow and winding steps. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were no longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. 	aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. 	the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. 		crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery and fraud, were punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphilis. 	prominent londoners sought to elevate their social position by having their family marry into rural landholding families of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. 	many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. 	in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. 	towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: [ ] faithfully serve the people in undertaking their cures, [ ] take reasonably from them, [ ] faithfully follow their calling, [ ] present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary, [ ] to be ready, at all times when they should be warned, to attend the maimed or wounded and others, [ ] to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and [ ] to faithfully do all other things touching their calling. 	some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. 	infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. 	after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and in the courts, replacing norman and latin. 	the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. 	a will in in which a wealthy citizen arranges for one son to become an attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks [ , s.] each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks [ s.]. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks [ , s.] to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." 	most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. marco polo's book of discoveries on his journey to china was known. 	geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. 	other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. 	political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. 	there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. 	a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". 	a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. 	another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. 	for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. 	englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. paper supplemented parchment, so there were more books. 	england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. 	an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. 	parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. 	at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. 	the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. 	sheriffs dealt directly with the king instead of through an earl. 	from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. 	to support a war with france, the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. the staple statute remained basically unchanged for the next years. 	guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. 	many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling [ s.] from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling [ s.] by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." 	forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. 	the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. 	english merchants may carry their merchandise in foreign ships if there are no english ships available. 	anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. 	all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. 	waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. 	a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. 	king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which bolingbroke was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. - the law - 	high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. 	petit treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. 	no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. 	preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. 	any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. 	no man shall ride with a spear, upon pain of forfeiting it. 	no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. 	no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. 	charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. 	men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. 	the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. 	a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. 	children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. 	a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. 	where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. 	the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. 	any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. 	anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. 	no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. 	all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. 	towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. 	cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. anyone may bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one may forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. 	imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. 	no one shall leave the nation except at designated ports, on pain of one year's imprisonment. 	social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". 	if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. 	no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound or other hound or dog to hunt, nor shall they use nets or cords or other devices to take deer, hare, rabbits, nor other gentlemen's game, upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. 	no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. 	no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. 	each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. 	no one shall give anything to a beggar who is capable of working. 	vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." 	the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. 	every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. 	no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. 	gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. 	no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. 	admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. 	wines, vinegar, oil and honey imported shall be gauged by the king's appointees. - judicial procedure - 	the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. trespass included forcible offenses of breaking of a fence enclosing private property, assault and battery, false imprisonment, and taking away goods and chattels. 	the action of trespass was replacing private suits for murder and for personal injury. 	pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. 	justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. 	a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [fee] tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. 	a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will. 	where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. 	actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. 	executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. 	if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. 	children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. 	a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. 	it was exceptional for the king to sit on the court of the king's bench, which worked independently of the king.and became confined to the established common law. 	decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament may change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there was a widespread belief that all the peers are by right the king's councilors. 	no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. 	in , there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. 	whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. 	the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were called "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. 	only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. 	treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. 	the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." 	property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." 	the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." 	on the coram rege roll of is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." 	a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defense of the said lands and tenements by the bribery and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. - - - chapter - - - - the times: - - 	this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster. great lords fought each other for property and made forcible entries usurping private property. nobles employed men who had returned from fighting in war to use their fighting skill in local defense.henry iv was the last true warrior king. 	in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. 	since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. 	peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament was interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. 	with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued to manage the household because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. 	for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. 	master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. the standard number of meals was three: breakfast, dinner, and supper. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer [served the food] and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights� table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. 	the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. 	many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. in towns these mansions were entered through a gate through a row of shops on the street.typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had beds that were surrounded by heavy draperies to keep out cold drafts. the beds had pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. 	in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. 	nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. 	jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. 	fishing and hunting were reserved for the nobility rather than just the king. 	as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. 	an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. 	most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that copyhold land could be inherited as was land at common law. evictions by lords decreased. 	the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. 	social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. 	a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. 	in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and �bankers and dorsers� to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and a primitive steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. 	london grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. 	on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. 	the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates thereby turning themselves into gentry. 	the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. 	many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles [a messenger of a court], aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers [cries out public announcements through the streets], paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. 	in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. 	in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . 	there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house; serve him diligently; obey reasonable commands; keep his master's secrets; protect him from injury; abstain from dice, cards and haunting of taverns; not marry; commit no fornication, and not absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. 	occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. 	in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. 	some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. 	the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. 	the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year, the number depending on the length of his membership in the company. he could sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. 	paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. 	in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. 	in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. 	the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. 	other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. 	about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." 	gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. 	the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . 	many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular, as were town miracle plays on leading incidents of the bible and morality plays. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. 	people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; they had much leisure time for mischief because they had to forego wife and family. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. 	people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. 	a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. 	a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. 	the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. 	embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. 	english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe, which took altitude of sun and stars, was used for navigation. 	consuls were appointed to assist english traders abroad. 	henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. 	for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. >from about , tunnage on wine [tax per tun] and poundage [tax per pound] on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. 	the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. 	infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. 	alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift their souls beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. 	king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the king�s business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. 	kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court, where he could make his fortune. 	barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. 	the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. 	king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. 	king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. 	it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. - the law - 	the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. 	by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. 	women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. 	purposely cutting out another's tongue or putting out another's eyes is a felony, the penalty for which is loss of all property]. 	no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. 	the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. 	for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. 	the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat and drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. 	any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. 	no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year.this was because of scarcity of laborers and other servants of agriculture. 	no laborer may be hired by the week. 	masons may no longer congregate yearly, because it has led to violation of the statute of laborers. 	no games may be played by laborers because they lead to [gambling and] murders and robberies. 	apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . lords - gold cloth, gold corses, sable fur, purple silk . knights - velvet, branched satin, ermine fur . esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year damask, silk, kerchiefs up to s. in value. . esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . servants of agriculture, laborer, servant, country craftsman - none of the above clothes 	gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. 	every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. 	there is a standard bushel of grain throughout the nation. 	there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. 	no gold or silver may be taken out of the nation. 	the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. 	a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. 	heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. 	shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. 	to prevent deceitful tanning, cordwainers shall not tan leather. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. 	defective embroidery for sale shall be forfeited. 	no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. 	no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. 	the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. 	no sheep may be exported, because being shorn elsewhere would deprive the king of customs. 	no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. 	clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. 	the term "freemen" in the magna carta includes women. 	the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. 	electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) 	london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. 	desertion by a soldier is penalized by forfeiture of all land and property. 	the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. 	former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." 	joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." 	there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . the spouse of a deceased person takes all personal and real chattels of the deceased. . for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . a child born before espousals is a bastard and may not inherit, even if his father is the husband. . if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. . a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petit larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. - judicial procedure - 	the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose; universities; the mayor and sheriffs of london; and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. 	people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. 	chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. 	chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. 	the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena, under pain of punishment, such as a heavy fine. 	whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. 	the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. 	justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. 	all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. 	attorneys may plead on behalf of parties in the hundred courts. 	a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. 	in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. 	justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. 	a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. 	impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. 	an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. 	an example of a petition to chancery in the s is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. - - - chapter - - - - the times: - - 	henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. 	the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. 	henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to the civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. 	many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. 	henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. 	henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. 	henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. 	the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of �readings� to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. 	the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. 	other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone.there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. 	the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. church cows and sheep given could be leased out to villagers. church buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. 	the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. 	in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. 	a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. a long gallery was used for exercise, recreation such as music and dancing, and private conversations. women and men wore elaborate headdresses. on the outer periphery are taverns and brothels, both made of mud and straw. houses are beginning to be built outside the walls of london along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. 	the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. there are guilds of ironmongers, salters, and haberdashers [hats and caps] 	a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. 	the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. 	tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. 	foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. 	ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. theologians had to admit that jerusalem was not the center of the world. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. there are more navy ships, and they have some cannon. 	the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". 	in , german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. 	the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons". the commons now assented instead merely requested enactments. - the law - 	royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , the king proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. 	a statute provided that: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment of a trust] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. 	any woman who has an estate in dower, or for a term of life, or in [fee] tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. 	all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. 	it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. 	a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. 	no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit s. after examination by a justice of the peace, one half going to the king and one half to the suer. 	any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. 	no man shall shoot a crossbow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) 	no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. 	no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. 	no long bow shall be sold over the price of s. d. 	good wood for making bows may be imported without paying customs. 	no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or else forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or else forfeit s. for each so sold. 	silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. 	each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. 	salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit s. the fish shall be packed in the manner prescribed or else forfeit s. d. for each vessel. 	fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. 	pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. 	no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. 	silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. 	no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. 	no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. 	freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. 	merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. 	for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. 	coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. 	the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) 	lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. - judicial procedure - 	this stastute made changes in the judicial process: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. 	henry sat on the star chamber up to , it heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. henry vii sat on it. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. 	justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. 	perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. 	the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. 	actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. 	proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. 	a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. 	no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. 	any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. 	any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. 	a pauper may sue in any court and be assigned a attorney at no cost to him. 	a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. 	benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction over many years of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) 	for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. 	the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. 	the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. 	ohanges in the judicial process other than those made by statute were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. 	the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. 	a new remedy is specific performance, that is, performance of an act rather than money damages. 	evidence is now taken from witnesses. 	various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. 	a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. a new form of action is trespass on the case, which did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case [or "case" for short] expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and for a written agreement without a seal. 	parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it rarely came to function as a law court. 	when a land holder enfeoffs his land and tenements to people unknown to the remainderman in [fee] tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. 	if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. 	the penalty for not paying customs is double the value of the goods. 	the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. 	the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. 	jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. 	a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. - - - chapter - - - - the times: - - 	renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. 	also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. 	humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. 	the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. 	understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. 	then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. news of new ideas in science traveled quickly to english scholars and professionals 	the physicians of london were incorporated to oversee and govern the practice of medicine. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. 	medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: �when sleep puts an end to delirium, it is a hopeful sign.� �when on a starvation diet, the patient should not be allowed to become fatigued.� �old men usually have less illness than young ones, but such as they have last, as a rule, till death.� �pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons.� �when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. 	it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after , there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. 	flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. 	in the s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. 	in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in , he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. 	students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. 	in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. 	geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being.the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. 	london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. 	a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers, some of whom became wage earners of the leathersellers. but others of these craftsmen remained independent. the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. 	londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. 	many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. 	there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from a.m. to p.m. in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. 	though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of other christians, scholastic theologians, priests and monks, superstition, and ritual looked absurd. more encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. 	more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. 	more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. 	erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. 	attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. 	like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne and have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. 	henry used and then discarded officers of state. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and also archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died on his way to be imprisoned in the tower to be tried for treason. 	thomas. cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. he was the son of a clothworker/blacksmith/brewer/innkeeper, like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more, the successor chancelllor to wolsey, was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. 	henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. 	cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. 	henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. because it was a court council, part of it traveled with the king, while the other part conducted london business. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. 	thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. 	after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. 	henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. 	the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. 	many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . 	villeinage was now virtually extinct. but a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. 	there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings: their rent became light - less that a shilling an acre. 	the knights had % of the land, the nobles %, the church %, and king %. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. 	all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. 	henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the organ and the harp, precursor to the piano, were played. 	people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. 	the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. 	the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. 	in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. 	the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. 	the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was returned to the subscribers of the capital they put in plus an appropriate share of any profits made on the voyage. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. 	land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. 	citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. 	the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. 	after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. 	church reforms included abolishing church sanctuaries. benefit of clergy was restricted more. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. 	about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. 	henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. - the law - 	offices may not be bought and sold, but only granted by justices of the royal courts. 	the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. 	a person having land in socage or fee simple may will and devise his land by will or testament in writing. 	a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. 	anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. 	a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. 	a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. 	anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) 	a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) 	a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. 	an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. 	a husband may not lease out his wife's land. 	no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. 	the land of tenants-in-common may be partitioned by them so that each holds a certain part. 	no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's goods, chattels, ware, merchandise, as well moveable as not moveable, and take it upon their oaths to the official. 	no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's moveable goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. 	executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. 	a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. 	any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. 	the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. 	no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. 	no alien may take up a craft or occupation in the nation. 	no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. 	an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. 	no butcher may keep a tanning-house. 	tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. 	only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. 	no one shall shoot in or keep in his house any handgun or crossbow unless he has , s. yearly. 	no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. 	no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. 	ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. 	no one may sell or buy any pheasant except the king's officers may buy such for the king. 	no butcher may kill any calf born in the spring. 	no grain, beef, mutton, veal, or pork may be sold outside the nation. 	every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. 	all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. 	no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. 	no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. 	no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. 	a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. 	only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. 	alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. 	butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. 	french wines may not sell at retail for more than d. per gallon. 	a barrel maker or cooper may sell a beer barrel for d. 	no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. 	no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. 	every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. 	a man may have only as many trotting horses for the saddle as are appropriate to his degree. 	no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. 	hemp or flax may not be watered in any river or stream where animals are watered. 	no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. 	no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. 	no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. 	if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. 	if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. 	killing by poisoning shall be deemed murder and is punishable by death. 	a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. 	a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. 	buggery may not be committed on any person or beast. 	no one shall slander or libel the king by speeches or writing or printing or painting. 	no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. 	the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. 	no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. 	any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. 	sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. 	butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. 	no one shall sell any woolen cloth that shrinks when it is wet. 	no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. 	no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. 	only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. 	a beggar's child above five years may be taken into service by anyone that will. 	cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. 	butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. 	no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. 	no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. 	for every sheep there shall be kept one milk cow because of the scarcity of cattle. 	no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. 	no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. 	there shall be a sales tax of d. per pound of wool cloth goods for the crown. 	all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. 	anyone fighting in church shall be excluded from the fellowship of the parish community. 	no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. 	no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. 	only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. 	no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. 	parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. 	the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. 	as of , it was felony to practice witchcraft, sorcery, enchantment, or conjuration for the purpose ) of obtaining money, or ) to consume any person in his body, members, or goods, or ) to provoke any person to unlawful love or lucre of money, or ) to declare where stolen goods be, or ) to despite christ, or ) to pull down any cross. 	the year books of case decisions ceased in . - judicial procedure - 	by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. 	doctors of the civil law may practice in the church or chancery courts. 	justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. 	piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. 	piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. 	land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. 	persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. 	each justice of the high courts may employ one chaplain. 	the privy council took the authority of the star chamber court, which organized itself as a specialty court. also, a specific group of full-time councilors heard pleas of private suitors. 	the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. 	the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. 	since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. 	the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself s bound by precedents. 	witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. 	when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. 	the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. 	the humanist intellectual revival caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. - - - chapter - - - - the times: - - 	queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, philosophy, literature, oratory, and greek and roman history. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists, at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. 	she read so much and was so influenced by cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished themdead. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror would be resented by the citizens, who in secret would choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. 	elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." 	she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. her credit reputation was so good that she could always get loans at small rates of interest from other countries. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. 	elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen.� 	elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic became a petticoat and the over-tunic a dress. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. 	every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs., except that barons' sons, knights, or men who could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. 	children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. 	women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". 	there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. 	typical wages in the country were: field-workers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from their own ground. 	there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. 	there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms had carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. family portraits decorated some walls, usually in the dining room. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards; cabinets; buffets from which food could be served; tables, chairs and benches with backs and cushions, and sometimes with arms; lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four-poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. 	breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. 	more than medieval castles and manor houses, mansions were designed with privacy in mind. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. 	without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. 	householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. 	most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. 	yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. so salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. farmers' wives used looms as well as spinning wheels with foot treadles. 	the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep farming, which had taken about % of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. 	the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % were under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". 	most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. 	london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in , a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. 	about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. 	the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. 	by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's, moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. 	taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. 	at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. 	there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of london. in the summer, people ate supper outside in public. 	as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. 	elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. 	elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. 	most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher; and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. 	the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. 	secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. 	the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . 	the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero - the "de officiis", the epistles and orations; and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from : am to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. 	many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. 	some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford; and eton with king's college, cambridge. the new charter of westminster in associated the school with christ church, oxford and trinity college, cambridge. 	the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were fee-paying members of the college or poor scholars. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise their own courses of study with their tutors� permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. 	in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". 	all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. 	undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. 	about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. 	there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. 	in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers, who gave lecturess; or benchers, who made the rules. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. 	gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. 	many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them; erasmus' new testament, "paraphrases", "colloquies", and "adages"; sir thomas north's edition of plutarch's "lives of the noble grecians and romans"; elyot's "the book named the governor"; and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. 	at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. 	italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is, one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". 	the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. 	in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. 	william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music with singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, and tennis. they fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer were viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. 	country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. 	the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. 	there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. 	in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. 	there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. 	communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. 	queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws, and the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, which structure fostered order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this later came the idea that the state derives its authority from the will of the people and the consent of the governed. 	protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. 	the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. 	in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating, however provoked. she considered homilies more instructive and learned than ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated. they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." 	there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. 	the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritans formed a party in the house of commons. 	the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. after exhausting every other alternative, the queen had reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. elizabeth�s council had persuaded her that it was impossible for her to live in safety otherwise. 	the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. 	goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. 	patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. 	for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. 	town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. 	new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade, though shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.companies paid heavily for their patents or charters. 	there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. 	the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. 	with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. 	there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, were made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. 	the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps were installed. 	new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, which was read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . 	in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. 	christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. 	parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills in the house of lords were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. 	the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. 	violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . 	theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. 	francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. many london merchants grew rich from using their ships for pirating. 	in , a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. 	a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. 	when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." 	about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. 	in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. 	the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. - the law - 	the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. purposes of the statute of artificiers were to advance agriculture, diminish idleness, and inhibit migration to the towns. it excluded three fourths of the rural population.) 	troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. 	a vagabond or mighty strong beggar [able to work] shall be whipped. 	incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. 	if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. 	no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. 	no one shall forge a deed of land, charter, sealed writing, court roll or will. 	no one shall libel or slander so as to cause a rebellion. 	embezzlement or theft by a servant of his master's goods of s. or more is a felony. 	cut-purses and pick-purses shall not have benefit of clergy. 	a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. 	benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. 	fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. 	crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. 	persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. 	any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. 	persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. 	devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by [ , s.] marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. 	a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. this was designed to remedy the following problem: 	a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. 	lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. 	loan contracts for money lent may not be for more than s. for each s. yearly (i.e. % interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. 	pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. 	when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. 	the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. 	any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. 	no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. 	the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. 	there shall be one sheriff per county, because now there are enough able men to supply one per county. 	no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. 	no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. 	fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries, where fissh was eaten eveery friday. eating fish instead of meat in lent in the springtime remained a tradition.) 	every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. 	no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. 	no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. 	no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. 	timber shall not be felled to make logs for fires for the making of iron. 	no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. 	cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) 	any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. 	no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. 	for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. 	persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. 	landowners of oxford shall be taxed for the repair of the highway and bridge there. 	the price of barrels shall be set by mayors of the towns where they are sold. 	rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. 	no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. 	woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. 	every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. 	wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. 	no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. 	pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. 	no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. 	no bishop may alienate any possession of their sees to the crown. such are void. 	watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. 	spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. 	plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. 	fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. 	since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. 	tonnage and poundage on goods exported and imported shall be taken to provide safeguard of the seas for such goods. 	all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. 	these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: ) the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. ) any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is [ , s.] marks and one year's imprisonment. the penalty for hearing mass is [ , s.] marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. ) papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. ) if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. - judicial procedure - 	trials of noblemen for treason shall be by their peers. 	stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much 	jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. 	defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. 	not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. 	a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. 	the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) 	because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. 	the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a capital crime, but practically the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. 	suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). 	the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. 	the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. 	the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. 	the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. 	pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. 	in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. 	in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. 	the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee] tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks [ , s.](of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. 	the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in fee tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) 	about , london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. - - - chapter - - - - the times: - - 	due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. 	society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. 	during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. the various classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. 	at the top were the gentry, about % of the population. theirs was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or by purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to estate tails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows; his horse is gelded; a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their places. 	the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. 	the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, long bencches with or without backs, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these freemen were about one-third of the male population of the town. 	the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. 	the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in one or two room cottages of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved, because of deprivation, to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. 	the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. 	the fourth and fifth classes comprised about three fourths of the population. 	then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. 	over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this reference letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." 	dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. toothbrushes, made with horsehair, were a new and costly luxury. the law dictating what classes could wear what clothes was difficult to enforce and the last such law was in . 	merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. 	even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs were steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were lined with panels and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. 	in the s, towns were fortified by walled ditches instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in , a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. 	wood fires were the usual type. coal was coming into use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. 	tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. 	the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. 	work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears might be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. 	government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. 	enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. 	there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets. also, there were enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. 	the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. 	in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. 	there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. 	quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. 	village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by the church by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. 	marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. 	the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels between husband and wife were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. 	naming one's wife as executor of one's will was the norm. jointures [property for a widow] were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widow	 did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. 	sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. 	the guild with its master and their employees was being replaced by a company of masters. 	james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. 	the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to select his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. 	in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. 	the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. 	most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. 	the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers, probably from old age pains, or having cats were further indications of witchery. 	when the king learned in that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. still unlawful on sunday were bear and bull baitings and bowlings. 	besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. 	one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. 	there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar"; aesop; terence's roman comic plays; virgil's "aeneid", the national epic of rome; cicero's "letters" reflecting roman life; sallust's histories showing people and their motives; caesar's "commentaries" on the gallic and civil wars; horace's "epistles" about life and poetry; poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, "fasti" on roman religious festivals and customs; donatus' grammar book; and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. 	private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. there were not many girls' boarding schools. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. 	boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study was based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law, which required seven more years of study, medicine, seven years, divinity, more than seven years, and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners, a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen. the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of many colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. 	tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. 	the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. 	physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. 	a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. 	the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood�s immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. 	the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. 	the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. 	there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. 	theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. 	shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science as well as religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" ( ). in , the first regular weekly newspaper was started. 	although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. 	the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. 	may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. 	golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. 	francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. 	by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory of imaginary numbers. 	john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in , willliam oughtred invented the slide rule for calculations. 	galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. 	from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force, which he called �friction�. he conceived of the air giving a frictional force to an object moving through the air. from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion (�inertia�), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. 	he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. 	galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. 	galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. 	the telescope was invented in . the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large, and therefore nearer the earth, it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . 	galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to house arrest as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. 	johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. 	renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in , he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically were equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. 	descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. 	christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. 	there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. 	in the haberdashers, who sold imported felt for hats, got a charter of incorporation. 	a tapestry factory was established in . 	flax-working machines came into existence. 	the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. 	wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. 	scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. 	the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. 	there was an increase in bankruptcies. houses of correction were built. 	as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. the old writ of habeas corpus [produce the body] had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". 	coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. 	james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.]. there were two knights from every county, elected by men holding at least forty-shilling freeholds; four representatives from london, and one or two from every other borough, generally elected by the top business families�; and a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. 	by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. 	the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. 	the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. 	there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. 	in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. 	in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. i	n , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. 	life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. 	the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. 	church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. 	about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. - the law - 	churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. 	every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. 	a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. 	persons stealing crops from lands or fruit from trees shall be whipped. 	every person shall receive the holy communion in church at least once a year or else forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. 	every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. 	lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. 	mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. 	persons deserting their families shall be deemed incorrigible rogues and punished as such. 	persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. 	because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. 	actors profaning god, jesus, or the holy ghost on stage are to be penalized s. 	in it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. 	sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. 	since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. 	no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. 	beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. 	fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. 	no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. 	no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. 	money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. 	houses of correction shall be built in every county. 	london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. 	all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. 	only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. 	no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. 	as attorney general, edward coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. 	edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". 	coke waged a long battle with his wife over her extensive property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." 	no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit s 	papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. - judicial procedure - 	defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. 	in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. 	james i asserted an authority to determine the jurisdiction between the various courts. 	the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, eclectically pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities. 	the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. for instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. 	the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. 	justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants]. 	the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of �good-a-bearing� and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. 	assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. 	three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. 	the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. 	the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. 	offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. 	plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. 	by , chancery could order injunctions to stop activities. 	in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". 	the trial of sir walter ralegh in began a call by people for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. 	church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. 	in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." 	justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. 	female scolds were still dunked into water as punishment. 	only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. 	the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. 	the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." 	the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. 	the last court case concerning villeinage was in . - - - chapter - - - - the times: - - 	the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front, were full and made of satin and stiff silk or velvet. only hose of silk were worn at court. 	a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry, were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. 	religion was a favorite and serious topic of discussion, even among the illiterate. nine-tenths of the people were protestant. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics (including arithmetic and geometry), poetry, (reading, writing, and criticizing), music (including part-music), drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation (if related to one's intended profession such as the law), philosophy (plato and aristotle), and some medicine and botany. 	richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. 	large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. 	the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park, the king�s private hunting park, for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. the water carrier was still active and the night transport of sewage necessary. 	inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall, near westminster, in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town planning in london with covent garden fruit and vegetable market and terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. 	the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. 	a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. 	about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. 	work was begun in to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only tons on a river. a single horse could haul an -ton wagon on iron rails or on a soft road, but only / of a ton on his back. 	a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. 	there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. 	in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. 	"searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. 	by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. 	poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. 	charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. 	charles wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus to get released, but to no avail. charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. 	the magna carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. 	the house of commons asserted a preeminence to the house of lords for the following reasons: the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. 	the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. 	in parliament distinguished between treason to the king and treason to the commonwealth. 	the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. 	charles thought of more ways to obtain money and disregarded his agreement to the petition of right. 	without the consent of parliament, charles extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain property. one man used his pitchfork to take back his steer being taken by the bailiff. if a distraint was successful, people would refuse to buy the distrained property of their neighbors. 	charles revived the right of the crown to force knighthood on the landed gentry for a fee. 	charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. 	fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. 	but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a catholic censure withdrawing most sacraments and christian burial]. days, postures, meats, and vestments were to be regarded. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. 	the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. 	to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after charles� wife, who was catholic. catholics in england could practice their religion only in their homes and could not carry arms. 	as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. twenty-two pamphlets were published in and , in . 	in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. 	the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. 	the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. 	the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. 	these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. 	the root and branch petition of to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, nor human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. 	the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, including those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. 	enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. 	rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. 	the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. 	justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. 	the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. 	the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. 	when the parliamentarians took oxford in , they purged its faculty of royalists. - the law - 	real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. 	from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit s. no butcher may kill or sell any victual on sunday or else forfeit s. d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. 	as of , a parent sending a child out of the country to go to a catholic school was to forfeit pounds, one half to the informer and one half to the king. 	the petition of right herebefore described was passed as a statute in . - judicial procedure - 	the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. 	in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. 	but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined , pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined , pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined , pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. 	charles i intimidated justices to obey him in decision-making even more than james i. 	charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. 	the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who, from the pulpit, inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. 	in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. 	the court of high commission was abolished by the long parliament. 	justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. 	in , in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. 	at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. 	the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. 	men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. - - - chapter - - - - the times: - - 	for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used in the war, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match, and dressed in leather doublets and an iron-pot headpiece; or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." 	the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. 	officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. 	parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. 	saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. 	complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. 	when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . 	to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. 	parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. 	from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. 	after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. 	most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. 	wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. 	patent protection was given in for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. 	the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. 	in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. 	john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". 	thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. 	on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. 	lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. 	the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see if they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. 	all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. 	a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. 	educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . 	in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. 	the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons: father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing [hunting with hounds], fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry [purchase or sale of office or preferment], forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. 	cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. 	in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. 	because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. 	imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . 	wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . 	in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. 	enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of his rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. 	employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. 	the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. 	capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but companies trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. 	cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. 	later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. 	in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. 	commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. 	regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. 	cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. 	authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. 	english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. 	after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. 	colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. 	in a corporation was established to teach the gospel of jesus christ in new england to indians. 	about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. 	there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. 	in the s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. 	there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. 	dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". 	evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of , he proved euclid's nd theorem that the sum of the angles of a triangle is equal to two right angles. before age , he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around , he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in . fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for the mathematics field of analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. 	jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. 	at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. 	some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. 	since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. 	in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. 	the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow; remove their hat, as was the custom when before the king or an earl; or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. they denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to colonial new england. 	in there were separation agreements between spouses as to property, e.g. support and maintenance. 	cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments consisting of one house, and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. 	cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews who had secretly migrated to england to avoid persecution on the continent, but not prelatists , who favored government of the church by bishops). 	in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches were prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. 	in , the officers of a new parliament modified the constitution and cromwell approved it. it was to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists; prelatists; socinians, who denied the divinity of jesus; for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. 	there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. 	after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. - the law - 	after the civil wars, the law against enclosure was not enforced. 	what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. 	"whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." 	no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. 	all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before a.m. or after p.m. 	persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. 	the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. 	blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. 	in adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. 	there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d. there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. 	a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. 	no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. 	hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. 	in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. 	treason to the protector was defined the same as it was to the king. 	army deserters are to be corporally punished or executed. 	fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. 	no one may import foreign hats or hatbands to relieve that industry in england. 	as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. 	butter for sale must not be corrupt and be properly weighed. 	one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. 	all books of the law, writs, pleadings, and patents shall be in english or else forfeit pounds. 	no deer may be killed or else forfeit pounds, half to the informer and half to the poor. 	interest may not exceed pounds for a loan of pounds yearly as of . 	no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. 	there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. 	no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. 	notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". 	there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. 	anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. 	horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. 	as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit pounds. 	as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. 	anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. 	excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. 	husbands were responsible for their wives' oaths and fathers for their daughters'. drunkenness was much punished. - judicial procedure - 	the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. 	parliament was no longer a court. 	use of the torture was proscribed in . 	in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. 	the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. - - - chapter - - - - times: - - 	the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before - about / instead of about / . there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. 	the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. 	several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament because baptists did not believe in an established church. 	charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." 	the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. 	charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. 	charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. 	dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. 	the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: number of social ranks, household household households degrees, titles size yearly income in pounds temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggar as can be seen, agriculture is still the most common occupation. 	great houses now had a central dining chamber for dining, with sets of suites, usually for couples, around it. each suite had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the csbinet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. 	there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as do laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servants� room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. 	great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer who were paid for a certain number of hours per week or month. the gentleman of the privy purse kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed, but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. 	well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. 	from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. 	in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. 	after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. 	nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. 	london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. 	london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. 	french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. 	london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. 	there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. 	in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. 	however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. 	one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. 	in in the county of essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. 	wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. 	women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. 	about , the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. 	issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: + + + +...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. 	newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. 	newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by observation. he carried mathematization of data from experiments as far as possible. 	newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. 	newton opined that an object moves because of external forces on it rather than by forces internal to the object. these are his three laws of motion. ) he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. ) his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. ) his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. 	his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had at first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. 	newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. 	newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. 	newton's "principia mathematica philosophiae naturalis", was published in . the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. 	when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took seconds for light to travel the diameter of the earth's orbit, he calculated its speed in . 	in , christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. 	in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in . 	robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. 	in , wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in , he introduced the first graphical representation of complex numbers. 	royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . 	in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. 	john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. 	nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. 	the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. 	physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. 	in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and service as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment of disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breast- feed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. 	locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. 	at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. 	english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. 	grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. 	in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. 	many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. 	there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. 	the only newspapers to appear between and were official government sheets. but in the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. 	the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . 	any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. 	there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. 	parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. 	because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. 	assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. 	in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. 	from to , societies for the reformation of manners prosecuted poor people for moral offenses. 	all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. 	the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. 	when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. 	charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . 	explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in , thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. 	there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. 	the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. 	in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. 	the bank simply took over from the goldsmiths its main everyday business of deposit, with a running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and a drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. 	a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. 	the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. 	all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. 	compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. 	william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. 	charles instituted a hearth tax of s. per year in , with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. 	by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. 	the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. 	under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. 	boards became independent of the king's privy council and answerable to the secretary of state. 	in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto [by what authority] before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. 	criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. 	james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . the king may not suspend laws or dispense with them without consent of parliament. . the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . the king may not levy money or extend an authorized levy without consent of parliament. . subjects have a right to petition the king without prosecution. . the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . protestants may have arms for their defense as allowed by law. . the elections of members of parliament should be free. . the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death). . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. 	the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. 	by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. 	after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. 	under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. 	the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, cutlery, gunpowder, saw milling, and pottery trades. these industries for manufacturing were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. regulated companies declined. there were no more commercial monopolies. the merchant adventurers lost their last monopoly privileges and their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. 	drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. 	from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. 	the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. 	the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. only a quarter of towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. 	smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. 	the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and then fell to pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. the stock exchange was incorporated about . 	exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen; flax; hemp; timber; iron; raw, thrown, and woven silk; wine; brandy; fruit; coffee; chocolate, served as a drink or used in cooking; cauliflower; and oil. from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by exports and imports increased % by . 	when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. 	parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. 	england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. 	in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience, i.e.freedom of religion, and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. 	proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. 	in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. 	in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". 	increase mather and his son cotton mather were puritan ministers in colonial boston. increase was for a time the president of harvard college and participated in obtaining the new charter of colonial massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. - the law - 	treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. 	the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. 	any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. 	any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. 	anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. 	any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. 	when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. 	no one may take more than pounds in interest for a pound loan. 	persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. 	because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. 	any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. 	mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. 	if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. 	one coparcener of a joint tenancy or tenancy in common may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. 	after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. 	executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. 	men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. 	whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". 	the making or selling of fireworks is forbidden or else forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. 	no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. 	anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings, because the daily importation of such has in effect taken the work from the poor and unemployed of england. 	no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. 	fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. 	no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. 	the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. 	the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk [silk twisted from cocoons into thread] to be imported. 	buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. 	when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. 	no one may take more than pounds in interest for a pound loan. 	persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. 	because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. 	retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. 	butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. 	salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. 	no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. 	no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. 	only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. 	army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. 	seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. 	pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. 	persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). 	by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . 	the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. 	the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. 	in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. 	there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. 	there were various statutes enacted over the course of time regarding religion, as follows: 	all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. 	a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. 	attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit s. or the goods respectively. no one may travel or else forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths, or declaration in the case of quakers, and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. 	as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit pounds. 	by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. this does not include members of the same household meeting in their home. anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. 	religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. 	quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offense or be imprisoned for months if he couldn't pay. for the second offense, the penalty was pounds or imprisonment for months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. 	many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. 	catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. 	by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. 	papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. 	but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of , a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. - judicial procedure - 	as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . 	in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. 	after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. 	a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. 	as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. 	as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. 	jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. 	jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. 	issues of bastardy or lawfulness of marriage had to be tried by a jury. 	the civil suit of trespass on the case branched into assumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to moveable goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass. 	this is an example of a writ for trespass on the case in assumpsit: the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c. 	this is an example of a writ for case on indebitatus assumpsit: the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c. 	this is an example of a writ for case for trover: the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c. 	the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. 	persons in prison on suspicion of treason could not be released on bail as of . 	if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. 	mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. 	merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. 	after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. 	the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. 	the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. 	the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. 	in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. 	the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. 	judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. 	court judgments and fines could be challenged for error only within twenty years. 	court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. 	any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. 	the last burning of a woman as a penalty for an offense, which had been only occasional, was in . 	the last bill of attainder, which condemned a person to death, occurred in . 	the pillory was still in use. 	benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. 	a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. 	in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. - - - chapter - - - - times: - - 	dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears and hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated between high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. both gentlemen and ladies had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both sniffed tobacco snuff but only men smoked it. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. a popular hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. 	the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. 	the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the others had to find a living such as in the church, law, medicine, or trade. the gentry usually lived in mansions. 	the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. 	the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, customs and excise men, and .shopkeepers, who now kept their wares inside and lived on the second floor. the town people lived in town houses of two stories plus an attic. 	the next class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate white or wheaten bread instead of rye bread, much meat and cheese, and drank tea. working men could now afford leather shoes. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. the wage earners were well above the subsistence level as long as trade was good. real wages were higher than at any time since the mid- s. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. 	wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer, without board or lodging. in the short harvest time, he could earn s. a week. 	lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. 	about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. 	the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. industrialists who had made a fortune for example, in steel, cotton, coal mining, and porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy landed estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone ate together in the dining room, with the servants at one end of the table. servants had no right to free time or to holidays. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. 	london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood paneling. there were pictures on the walls. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace; curtains over the windows looped up at the cornices; one or more mahogany tables; a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails, perhaps with some sort of metal springing; two mahogany sideboards with marble tops; cupboards or shelves or cabinets with displays of china porcelain; a wine-cooler; a dumb-waiter; and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, silver knives, spoons, and two and three pronged forks, glass saltcellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. landscaping to reproduce an idealized country scene replaced formal gardens. foreign trees were imported. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. furniture and landscaped gardens were often done in a chinese style. 	many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. 	in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs ]fashionable gatherings], levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. gentlemen often had valets. carriage by sedan-chair was common. in , buckingham house was bought as a palace for the royal couple. 	physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. 	people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods such as boots, shoes, hats, gloves, harnesses, and saddles, jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, model solar systems, and air pumps. 	in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, glue, printers' ink, and colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers [removed hair or wool from hides in preparation for leather making], and the tanners, employed journeymen. 	the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shopkeeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid d. a day, served an apprenticeship as a boy, and then was his own master. 	the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. 	there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. 	working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitiating: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. 	although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods. there were bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from a.m. to p.m., and years later to p.m. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' businesses, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in , lloyd's for sale and insurance of ships in , and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. 	the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." 	another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." 	the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges crossing the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted there. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. 	it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. 	there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. 	queen anne was authorized by parliament to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: , pounds, to the clerical poor in . 	there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. 	bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods passing underneath. about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging out from stores, which had blocked the sunlight, were placed flat on the front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. there were special stands for hackney coaches, which were s. d. for a day of twelve hours. their regulations were extended to sundays. 	in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. 	in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. 	no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. 	for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. 	in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. 	the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. 	queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. 	households were smaller; a peer had a household of about - . the proportion of women in a household grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. 	the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. 	single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings took place in public in church instead of privately. there were banns, or announcements, publicized before the wedding so that anyone who knew of a reason why the marriage should not take place could speak up. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. 	funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. 	it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. 	houses were warmed in winter by burning coal. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. 	most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. 	towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shopkeeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap from animal fat or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically a.m. to p.m. 	though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. 	sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. 	the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. 	dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. 	the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german in and "institutes of the laws of england" by thomas wood in . most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. 	the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. 	in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. 	authors of books which have been registered at the stationers hall had the sole liberty of printing and reprinting such book for years. others who printed or sold or published such forfeited the books and paid one penny for each sheet found in their custody, / to the queen and / to the suer. the printer had to give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. 	in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. 	the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. 	italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. 	painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. 	foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. 	the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that small particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong and performed chemical interactions, but at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". 	drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. 	there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. 	the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. 	agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. 	enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. 	by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. 	every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. 	much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. 	the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow. 	farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. 	there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. 	the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: "they hang the man and flog the woman that steals a goose from off the common but leave the greater criminal loose that steals the common from the goose." 	eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests might by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, could not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. 	land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. 	the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. 	thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks [coils] for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. 	in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. the flying shuttle doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. 	in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. 	in , the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about . the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. 	richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. this was the first all-cotton cloth made in england. he had confronted and solved the problem of a statute of which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit pounds by a seller, pounds by a wearer, and pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp for strength and a cotton weft for fineness. this statute was so "clarified" in . when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. 	in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely copied. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. 	after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth challenged the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities, and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. 	manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. 	apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. 	although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. 	wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. 	in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. 	when the journeymen tailors in and around london organized a union, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages were not to exceed s. per day and their hours of work were to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more would forfeit pounds. a journeyman receiving more was sent to the house of correction for months. justices of the peace could still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work due to their masters calling them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to a.m. to p.m. in . 	the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. 	in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work forfeited s. 	in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver could have more than two apprentices or else forfeit pounds. journeymen weavers entering into combinations forfeited s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. 	in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. 	the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use at easily learned plain work in the new industries. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. 	making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. 	in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman could not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which was then used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. 	charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. 	desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. 	vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. 	crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit pounds. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation out of the country. in , additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. 	the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats. englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. 	in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in , the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in , he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. 	hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. 	italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. 	in , george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in , he prepared the first scientific chart of the gulf stream. 	daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in , he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. 	in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. 	in , joseph priestly, a nonconformist minister, schoolmaster, and tutor, discovered oxygen by heating red oxide of mercury. he became interested in the study of gases by watching the process of fermentation in a brewery next to his house. his gas collection techniques enabled him to work with gases soluble in water. he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion produced by heating certain metallic nitrates. it was called "respirable air". 	hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. 	in , benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. 	static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in , frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. 	in , benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge was seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitosr, a leyden jar, and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. franklin invented the lightening rod, which was then used to protect buildings. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. 	joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. 	in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at one time with only one person attending it. 	machines still mostly relied on human, animal, and water power. 	abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those imported. 	in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. 	in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. 	thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs� locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. 	then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. 	about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in , he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. 	watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. 	in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. 	clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in , invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. 	around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. 	silver was plated over copper from . white metal from tin and antimony was used from about . 	the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. 	in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. 	in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. 	the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. 	the world's first chocolate factory was set up in england in . milk was added to chocolate. 	the fanmakers were incorporated in . 	a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . 	a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. 	anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade might be increased. 	in the s the first cooking school was established by mrs. elizabeth raffald, a servant. 	as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. 	the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. 	there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in , claudius aymand conducted the first successful appendectomy. 	nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in , frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. 	since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. 	after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. 	melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. 	in was the last time a monarch touched a person to cure him of a malady such as scrofula. 	in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. 	the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. 	the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. 	from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. 	about , john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. crowds of poor people were generally feared because of their mob potential. these methodist meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. 	church sanctuary was abolished for those accused of civil offenses. 	there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid went to prison or was put to hard labor in a house of correction for three months without bail. he was also whipped in the market place between : and : . if he offended a second time, he was transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred had to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. 	by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . 	in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. 	a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to . any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. 	by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. 	in , canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built his great factory. 	in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. 	the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. 	promissory notes were assignable and endorsable and the holder could recover against the signer or any endorser as was the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable could be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. cash was to be used instead. 	by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. 	in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. 	local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. 	duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum [strong beer made from malted wheat], cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire, except licensed hackney coaches; silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. at other times, they could not be imported. duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. 	in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or else forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) 	a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d.- s. d. per ream depending on quality) or imported ( - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. 	not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. 	wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. 	county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. 	this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property could be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. 	able-bodied men without a calling, employment, or visible means of maintenance or livelihood could be searched for and conscripted into the army. volunteers who enlisted were paid s. and were not taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. 	whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. 	during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as they were for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. 	sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. 	justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the boy's parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least years of age. master and owners of ships that carried - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or else forfeit pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. 	no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. 	there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of a helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in , and a sextant invented in , with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. 	officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. 	only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. >from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. 	the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s which became outdated. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. 	prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that the prizes be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was paid. privateers colluding with others to fraudulently take their merchant ships forfeited their ships, with / rd going to the person who made the discovery and prosecuted. 	later, any able seaman volunteering for the navy was to receive pounds bounty. any seaman volunteering for the navy was to receive a bounty of pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than s. per month because of war at that time. 	still later, anyone who ran goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. 	those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich received a pension as determined by the hospital. 	in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. 	no war ship could carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. 	the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. 	when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. 	the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. 	only pilots examined and admitted into the society of pilots and, if no such pilot was readily available, a ship's own owner, master, or mate could pilot ships up the thames river, or else forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship could no longer be a pilot. there had to be at least qualified pilots. the prices of piloting were pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. 	to preserve navigation, ships were not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flowed or ran or else forfeit s.- pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. 	many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry [borrowing money and and pledging the ship as security]. each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. 	any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. 	the owners of ships were not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this was to prevent the discouragement of owning ships. 	the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry had benefit of salvage. no insurance could be for a greater amount than the value of one's interest in the ship or in the goods on board. 	no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river could take an apprentice unless he was a housekeeper or had some known place of abode where he could keep such apprentice or else forfeit ten pounds, and if he couldn't pay, do hard labor at the house of correction for - days. also he could not keep the apprentice bound to him. no apprentice could be entrusted with a vessel until he was if a waterman's son and if was he the son of a landman, and he had at least two years' experience. none but freemen, i.e. one having served an apprenticeship of seven years, could row or work any vessel for hire or be subject to the same punishment. this was to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. 	no boat on the thames river could be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such had led to theft of ropes, cables, goods, and stores from the ships. excepted were boats registered at the guilds of trinity and of st. clement, but they had to show their owner's name and could only operate in daylight hours. the penalty was forfeiture of the boat. 	all ships coming from places infected with the plague had to be quarantined and any person leaving a quarantined ship had to return and later forfeit pounds, of which / could go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and forfeited pounds. if he did not take his vessel to the quarantine area on notice, he forfeited a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. 	by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. 	proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, keeper, president of the council, privy seal, treasurer, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. with thomas more, the chancellor had become more of a judge and less of a statesman. other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. 	the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. he was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. 	members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. 	as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. 	as of , a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit pounds. 	in , since unauthorized persons had intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer appointed clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath was that one was a freeman of london, a liveryman of a certain named company, had been so for months, and had named his place of abode. the oath for alderman or common council elections was that the voter was a freeman of london and a householder in a named ward who had paid scot of at least a total of s. and bore lot. a list of the voters and of persons disallowed was given to candidates by the presiding officer. 	soldiers could not be quartered within miles of a place of election so that the election was kept free. 	voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. 	ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. 	the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. 	james burgh demanded universal suffrage in his book: "political disquisitions". 	in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were assigned for that purpose on the application of the person impeached. in , counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing. 	there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of the property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." 	in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. 	there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. 	manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". 	to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. 	in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. 	these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. 	seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." 	by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. 	in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. 	by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. 	the commander of the british troops in north america was made governor of massachuseetts. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. mandatory education every township of fifty households had to appoint one person to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. 	the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. 	by statute of , anyone harboring of army or marine deserters in the colonies forfeited pounds anyone persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. 	bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. 	any shipmaster carrying as passengers any fisherman, sailor, or artificer to america forfeited pounds because such men had been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. 	the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted about july , . thereafter, the american colonies did not follow english law. past english law became the legal heritage of the united states of america. - the law - 	anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable, by night or by day, whether the owner is present or not, whether there is a break in or not, may not have benefit of clergy. 	anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. 	anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. 	a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. 	as of , any person convicted of grand or petit larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. 	anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. 	any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. 	later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. 	later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. 	no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. 	anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. 	persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. 	a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. 	pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. 	maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. 	the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. 	it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. 	in , making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. 	anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. 	in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for years. 	anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. 	if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. 	the earlier statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. 	anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that good of small value taken without violence shall be punished as petit larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. 	armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. 	any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. 	in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. 	trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than pounds ( in ) worth of property (including s. in money in ), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in , the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds as well as double the value of the asset. 	a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. 	a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. 	a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. 	later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors, excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds, if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. 	no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. 	every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents, but not sell timber, until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. 	tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. 	landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. 	chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. 	any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. 	as of , all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. 	an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. 	journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. 	anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. 	the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for - months without bail for the first offense, and for - months without bail for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. 	each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. 	anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. 	a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. 	anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. 	justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. 	all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit pounds. exempted were performances authorized by the king in westminster. 	unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. 	later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. 	persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. 	masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. 	anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. 	anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. 	no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. 	wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. 	only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. 	apples and pears may not be sold by any measure other than a standard water measure, or else forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. 	there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. 	malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit s. 	any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. 	walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit s. per pound. 	persons near london may not make unsound, hollow, or improperly heated bricks. 	makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. 	in , any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. 	bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. 	straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit - s. 	frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. 	at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. 	agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. 	no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. 	later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. 	any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. 	any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. 	anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. 	anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. 	anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. 	in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. 	officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. 	any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. 	in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. 	in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. 	anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. 	no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. 	it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. 	as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. 	papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. 	any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. 	jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. 	black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . 	if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. 	no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit pounds. later, pine trees on private property were exempted. 	citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. 	anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. 	no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. 	whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. 	pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit pounds. 	no paper bills of credit may be used in new england because such have depreciated. 	william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . - judicial procedure - 	for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. 	no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. 	there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. 	appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament. 	the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. compurgation still existed for debt and detinue. 	writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. 	plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. 	the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. 	poor persons may be paid up to d. to give evidence against felons. 	pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. 	in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms so there was no cross-examination possible. most decrees took many years to be made. 	the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. 	in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. 	in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. 	to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. 	in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, and much more. trover more than covered the old province of detinue. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. 	mercantile law was developed by the common law courts, especially the king's bench. 	the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. 	the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. 	summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. 	the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. 	the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. 	in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. 	from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. 	in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". 	there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. 	in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. 	colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. 	judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. 	in john peter zenger, printer of the new york weekly journal, was tried for seditious libel for its criticisms and satire of the new york governor, who exceeded his powers, such as by demanding that bills from the assembly be presented to him before the council, and by arbitrarily displacing judges. seditious libel was defined as "false, scandalous, and seditious" writings. traditionally, this word "false" could mean "disloyal". the prosecution argued that truth of such criticism was an aggravation of the crime because it was more provoking of sedition, as found by star chamber cases. the defense argued for a right publicly to remonstrate abuses of power by public officials to guard against violence and destruction of liberties by men in authority. the american jurors, who were supposed to be familiar with the facts pertinent to the case, knew the truth of the paper's criticisms. they agreed with the defense that the word "false" in the definition: "false, scandalous, and seditious" writings, to mean "untrue" instead of "disloyal". so truth became a defense to seditious libel. pamphletts describing the zenger trial and acquittal were published and republished in london and the colonies. 	benefit of clergy for certain crimes was available in the american colonies to all who could read and write. for instance, t could be used in trials for manslaughter. - - - chapter : epilogue - - - in the time period after , there developed the fuel-saving kitchen range with closed-in-fire between oven and hot-water tank, hot and cold running water, the use of flushing toilets, edmund cartwright's power weaving machine, samuel crompton's mule for spinning many threads by waterpower in , james watt's steam engine with steam pushing the piston both ways as well as rotary motion and used in many kinds of factories instead of water power, henry bessimer's inexpensive low carbon steel in , iron and steel bridges and ships, drilling and use of oil and natural gas as fuel, adam smith's "wealth of nations" opining that competition of the market could distribute resources best, thomas paine's "rights of man", free trade, democracy, popular elections, secret ballots, universal suffrage, civil service without patronage, mary wollstonecraft's "vindication of the rights of women", university education for women (university of london), policemen (in london in ), clipper ships (the final development of sailing before steam), percussion caps on guns, periodic chart of chemical elements, college degrees in biology, chemistry, and physics, geology, maxwell's theory of electromagnetism, albert einstein's theory of relativity, quantum theory, laws of thermodynamics that the energy of the universe is a constant amount but entropy always increases, computers, decoding of the dna sequence, charles darwin's evolution, joseph lister's disinfectant in , edward jenner's smallpox vaccine, louis pasteur's germ theory of disease, anesthetics, aspirin, insulin, penicillin, antibiotics, surgery to replace body parts, tampon, contraceptive pill, discovery of planet uranus by observation and thence of neptune and pluto by calculation from discrepancies in uranus' orbit, hubble space telescope, big bang theory, buses (horse-drawn from with passengers), subways, trains ( ), public railway ( , goods drawn by engine and passengers by horse), steam ships, steel ships, aircraft carriers, submarines, tanks, friction matches, chewing gum, pajamas, gas street lamps, traffic lights and signs, ambulances, concrete and asphalt highways, census in , children's playgrounds, knee length dresses, chemical artificial fertilizers, substitution of steel for iron, trade unions, digital watches, wrist watches, compact disks, intelligence tests, personality tests, wool-combing machine, statistical analysis, bell curves, standard deviations, united nations, carpet sweeper, vacuum cleaner, central heating, apartment high rises, business skyscrapers, electricity, electric lights, sewing machines, water closets in richer houses (after ), cholera epidemics, sewers for waste disposal, industrial revolution factories, labor strikes, cars, tractors, charles dickens, ice boxes and refrigerators, telephones, central heating with radiators, hot water heaters by gas, gas ovens, humidifiers, canned food, four- pronged forks, suits of matching jackets and trousers, zippers, velcro, wall-to-wall carpeting, popular elections, airplanes, photography, record players, frozen food; cast iron kitchen range for cooking, baking, and boiling; radio, television, plastics, submarines, economics, multinational corporations, weather forecasting, braille, airplanes, space ship to moon, factory assembly lines, washing machines, dishwashers, sewing machine, microwave ovens, copier machines, dna evidence, nuclear bomb and nuclear energy, guided missiles, quartz watches, bicycles, artificial insemination and invitro fertilization, investment advice, retirement planning, amusement parks, catalogue buying, labor contracts, childrens' summer camps, teenage culture, synthetic materials, typewriters, cardboard boxes, marketing studies, factory assembly line, gene-mapping, animal cloning, internet, hiking and camping trips, world travel vacations, telegraph, word processing, gas, oil, research, credit cards, dental floss, camcorders, mass production, nursing homes, cameras, copy machines, wheelchairs, hospital operations, artificial limbs, organ transplants, pharmacies, public circulating libraries, children's playgrounds, cosmetic surgery, physical exercising equipment, vitamin pills, sports clubs, condominiums, molecules, chromosomes, observatories, radar, sonar, nutrition, supermarkets, disability insurance, liability insurance, chemical fertilizers, ddt, record players, video tape recorders, retirement homes, movies;, planned obsolescence, box-spring mattresses, brain scans, x-rays, organized professional sports, dry cleaners, foreign embassies, psychiatry, veterinarians, drug abuse, wage garnishment, tractors, lawnmowers, breeding zoos, world wars, nuclear deterrence, fingerprinting, forensic evidence, toxic waste, acid rain, elevators, picture windows, sewing machines, automation, cybernetics, pizza delivery, health insurance, walt disney, satellite transmission, radiocarbon dating, ice cream, air conditioning, ball point pens, school blackboards, bullets in s, electronic mail, first law of thermodynamics: the conservation of energy, the second law of thermodynamics: potential energy turns into high-temperature thermal energy and finally into low-temperature thermal energy, but these processes are not reversible. the science of philology, on the meaning and history of words began the concept of a natural development of languages which conflicted with the theological view that god had created all the different languages when he punished man for trying to build an edifice to heaven by destroying the tower of babel and dispersing the people into all parts of the world with different languages derived from the original: hebrew, so that they could not communicate with each other. the science of geology developed the concept of tremendous changes in the earth's surface which altered horizontal layers of deposits, in which there were fossils, which challenged the biblical notion of a world and all its animals created in a week. in , lord henry cavendish proved that the sole result of mixing hydrogen with oxygen was water, thus disproving the theory of the four elements of air, earth, fire, and water. in the united states, there was no king, a separation of the executive, the legislative, and the judicial; a separation of church and state, and no aristocratic titles. in this time period the development of law includes abandonment of common law crimes such as seditious libel in the united states, negligence and duty of due care in the united states replacing the english strict liability for torts, substitution of the caveat emptor doctrine for the english sound price doctrine in contract law in the united states, truth as a defense to charge of libel in the united states, repeal in england of seven year requirement for apprentices in , married women's property acts beginning : ( . right to sue and be sued, . right to her own earnings, . right to own real and personal property, . right to make contracts . right to stay in family homestead with children, right to custody of children if husband abandons her), divorce in england by courts in , in united states extension of grounds for divorce beyond adultery, bigamy, and desertion to cruel treatment, habitual drunkenness, and conviction of a felony and finally no-fault divorce, decline of father's paramount claim to the custody of his minor children in the absence of a strong showing of misconduct or unfitness, tender years doctrine (in england in mother to have custody of child under seven and to have access over seven) and then best interests of child doctrine in custody disputes, legal obligation for parents to support their minor children, adoption about the s; in england allowance of women attorneys in , women to vote in , adultery by a husband to be adjudged as culpable as adultery by a wife in , the rights of a mother over her child to be equal to those of a father in , and the rights of a woman to property to be the same as those of a man in ; child labor laws, full religious freedom with admission of nonconformists to the two universities in england in , probable cause instead of suspicion for search and seizure, mandamus, rule against perpetuities, mandatory secondary education, kidnapping, false impersonation, liens, obscenity, estoppel for detrimental reliance on a promise, unjust enrichment, pensions, trademarks and unfair competition, antitrust, privacy, freedom of thought, freedom of speech, freedom of the press, bankruptcy, civil rights, union organizing laws, laws on discrimination due to race, sex, ethnic or national origin, disability, age, and sexual preference; sexual harassment and stalking laws, product liability, international law, environmental laws protecting air and water quality, workers compensation, unemployment compensation, controlled substances, intellectual property law; and contingency fees only in the united states, in england, there was an end of trial by combat in , of compurgation in , and of benefit of clergy. in , there were offenses in england with the death penalty, including stealing from a dwelling house to the value of s., stealing from a shop to a value of s., and stealing anything privily from the person. the penalty for treason was still drawing and quartering. it was a privilege of the peerage to be immune from any punishment upon a first conviction of felony. as of , church courts could no longer decide cases of perjury; as of , no cases of defamation, but only church matters. hearsay rules and exceptions were developed in the s. in , jurors were to have no knowledge except the evidence accepted at court. in , counsel for a person indicted for high treason could examine and cross- examine witnesses. in , a defendant could see the written record of evidence against him. in , the accused was allowed to give evidence. pleaders do not have to specify the form of action relied on, but rather give facts which give rise to a cause of action. judicial procedure includes grand juries, which hear evidence, court transcript by court stenographers, discovery, depositions, and presumption of innocence (after salem witch trials in the united states). the united states changed judicial procedure in several respects: parties were allowed to testify, writ pleading was abandoned, and prisons were used for reforming prisoners. debtors prisons were abolished. also, the law was seen not as divinely inspired eternal law to be found by judges, but law made by man to suit the times. state judges served for life during good behavior; they could be removed by the procedure of impeachment. in some states, judges were elected. there were privileges on testimony such as attorney-client, priest-confessor, and husband- wife. - - - appendix: sovereigns of england - - - accession - name - alfred the great edward the elder son of alfred aethelstan son of edward the elder edmund son of edward the elder eadred son of edward the elder eadwig son of edmund edgar son of edmund edward the martyr son of edgar aethelred the unready son of edgar edmund ironside son of aethelred the unready canute harold i harefoot son of canute hardicanute son of canute edward the confessor son of aethelred the unready harold ii william i, the conquerer william ii son of william i henry i (and matilda) son of william i stephen henry ii (and eleanor) grandson of henry i richard i, the lion-hearted son of henry ii john son of henry ii henry iii son of john edward i (and eleanor) son of henry iii edward ii son of edward i edward iii son of edward ii richard ii grandson of edward iii henry iv henry v son of henry iv henry vi son of henry v edward iv edward v son of edward iv richard iii henry vii (and elizabeth) henry viii son of henry vii edward vi son of henry viii mary daughter of henry viii elizabeth i daughter of henry viii james i charles i son of james i oliver cromwell charles ii son of charles i james ii son of charles i william and mary william iii anne granddaughter of james ii george i george ii son of george i george iii son of george ii - - - bibliography - - - . ancient laws and institutes of england, printed by command of his late majesty king 	william iv under the direction of the commissioners of the public records of the 	kingdom, vol ; . . the laws of the kings of england from edmund to henry i, a.j. robertson, . . the statutes of the realm . statutes at large . a treatise of the lawes of the forest, john manwood, . history of english law; william holdsworth . history of english law, pollack and maitland, . anglo-saxon charters, a. j. robertson, . franchises of the city of london, george norton, . borough customs vol. , selden society, . royal writs in england from the conquest to glanvill, selden society, . lawsuits in time of wm i, selden society . treatise on the laws and customs of the realm of england, ranulph d. glanvill, . calendar of wills, court of husting, london; ed. reginald r.sharpe . calendar of early mayor's court rolls of the city of london, ad - , ed. a. h. 	thomas . legislation of edward i, t.f.t. plunkett, . english historical documents, ed. david douglas . bracton on the laws and customs of england, henry of bratton, . chaucer's world, edith richert, . john, king of england, john t. appleby, . a collection of eighteen rare and curious historical tracts and pamphletts, 	edinburgh, priv. print. . doctor and student, christopher st. germain, . readings in western civilization, george kuoles, . social england, ed.: h.d. traill, st. john's college, oxford; vol. and , . . augustine of canterbury, margaret deanesly, . the venerable bede, ecclesiastical history of the english nation . political history of england; t. hodgkin . alfred the great, helm, . domesday, a search for the roots of england, m. wood, . the english church - ; f. barlow, . life on the english manor; h.s. bennet; . the english medieval town; colin platt; . london weavers' company, francis consitt, . the gild merchant, charles gross, . life and times of roger bacon . oxford book of oxford, jan morris, . a history of oxford university, vivian green, . lives of the lord chancellors, campbell, . gilds and companies of london, george unwin, . a history of technology, charles singer, - . edward i, michael prestwich, . franchises of the city of london, george norton, . the works of alfred . salisbury plain, r. whitlock, . william the conqueror, f.m. stenton, . life of william the conqueror, t. roscoe, . elizabeth i, anne somerset, . queen elizabeth, katherine anthony, . industry in england, h.deb. gibbons, . henry ii, w. l. warren, . edward i, l.f. salzman, . the yorkist age, paul kendall, . edward the confessor, frank barlow, . the livery companies of the city of london, w. carew hazlitt, . parliamentary representation of the city of coventry, thomas whitley, . the government of england under henry i, judith green, . lives of the queens of england, agnes strickland, . the oldest version of the customs of newcastle, c. johnson, . charter of henry ii to the burgesses of newcastle, a. m. oliver, . the charters and letters patent granted by the kings and queens of england to 	bristol, samuel seyer, . magna carta, legend and legacy, william swindler, . chronicles and memorials of great britain and ireland during the middle ages: letters and papers of richard iii and henry vii . sons of the conqueror, g. slocombe, . the spirit of the classical canon law, richard helmholz, . open fields, charles orwin, . the medieval foundation of england, arthur bryant, . from alfred to henry iii, - , christopher brooks, . the anglo-norman nobility in the reign of henry i: the second generation, charlotte 	newman, . the birth of britain vol. , winston s. churchill, . medieval london, gordon hoime, . a history of london, stephen inwood, . tudor england, john guy, . reign of henry vii, r. storey, . elizabethan life in town and country, m. st. claire byrne, . the elizabethan world, edited by norman kotner, . the evolution of modern medicine, william osler, . shakespeare's england, oxford university press, . the lion and the throne, catherine bowen, . johnson's england, ed. a.s. turberville, . education in renaissance england, kenneth charlton, . the scholastic curriculum of early seventeenth-century cambridge, william costello, 	 . . english people on the eve of colonization - , wallace notestein, . sir walter ralegh, willard wallace, . sir walter ralegh, robert lacey, . constitutional documents of the reign of james i, j.r. tanner, . history of the english people, volumes iii and iv, green . hume's history of england, volumes v and vi, david hume . english society - , keith wrightson, . the century of revolution - , christopher hill, . charles i and the puritan upheaval, allen french, . charles i, christopher hibbert, . constitutional documents of the puritan revolution - , samuel gardiner, . life and work of the people of england in the th century, dorothy hartley et al, . home life under the stuarts, elizabeth godfrey, . cromwell the lord protector, antonia fraser, . the greatness of oliver cromwell, maurice ashley, . acts and ordinances of the interregnum - , c.h.firth & r.s.rait, . history of the english people, john r. green, . . a social and industrial history of england, f.w. tickner, . a history of everyday things in england, marjorie and chb quennell, . the english, norman f. cantor, . a concise economic history of britain, john clapham, . world book encyclopedia . encyclopedia britannica . history of the english constitution, rudolph gneist, . the life of the law, alfred knight, . norton anthology of english literature, ed. m.h.abrams, . the bank of england, john clapham, . the honorable company, a history of the east india company,john keay, . a history of british india, w.w. hunter, . the bank of england, john clapham, . early speculative bubbles and increase in the supply of money, m.a. thesis, douglas 	e. french, . royal charles, antonia fraser, . charles ii, ronald hutton, . the life and times of charles ii, christopher falkus, . life in a noble household - , gladys thomson, . the weaker vessel, antonia fraser, . a constitutional and legal history of medieval england, bryce lyon, . the laws respecting women, j. johnson, . mediaeval england, mary bateson, . elizabeth: the struggle for the throne, david starkey, . a social history of england, asa briggs, . the year , robert lacey, . a history of chemistry, charles-albert reichen, . john locke, economist and social scientist, karen vaughn, . becoming visible, women in european history, ed. bridenthal & koonz, . wonder book of the world's progress; inventions and customs, henry williams, . industrial revolution in the eighteenth century, paul mantoux, . eighteenth century england, dorothy marshall, . georgian england, a.e. richardson, . the pageant of georgian england, elizabeth burton, . the georgian gentleman, michael brander, . england in the eighteenth century, j.h. plumb, . london life in the eighteenth century, m. dorothy george, . law and jurisprudence in american history, stephen presser & jamil zainaldin, . england in the age of hogarth, derek jarrett, . the first four georges, j.h. plumb, . the review of american colonial legislation by the king in council, elmer russell, 	 . select pleas of the crown, f.w. maitland, . select pleas in manorial and other seignorial courts, f.w.maitland, . the forms of action at common law, f.w. maitland, . equity, f.w. maitland . the story of the declaration of independence, ira g. corn, jr., . internet medieval sourcebook . out of the fiery furnace video, robert raymond . a history of chemistry, charles reichen, . seven ideas that shook the universe, nathan spielberg, . a history of the warfare of science with theology in christendom, andrew white, . american political and social history, harold faulkner, . essays in science, albert einstein, . the character of physical law, richard feynman, . dictionary of national biography, george smith, . elizabeth i: collected works, ed. leah marcus et al, . the crime of galileo, giorgio de santillana, . from copernicus to einstein, hans reichenbach, . the horizon book of the elizabethan world, ed. richard ketchum, . tower of london, christopher hibbert, . tudor royal proclamations, ed. p.l. hughes & j.f. larkin, . selected historical essays of f.w.maitland, ed. helen cam, . lloyd's of london, raymond flower & michael jones, . weather, philip thompson etc., . constitutional history of england, william stubbs, . hillforts of england and wales, james dyer, . the last two million years, reader's digest association, . london: the civic spirit, robert goldston, . domestic life in england, norah lofts, . descartes, tom sorell, . life in the english country house, mark girouard, . extraordinary origins of everyday things, charles panati, . god's peace and king's peace: the laws of edward the confessor, bruce o'brien, . the bill of rights, irving brant, . issac newton, adventurer in thought; a. rupert hall, . the life of issac newton, richard s. westfall, . a history of the circle, ernest zebrowski, . the world of water, j. gordon cook, . the western intellectual tradition, j. bronowski & mazlish, . human accomplishment, charles murray, . magic, myth and medicine, d.t.atkinson, m.d., . scientists who changed the world, lynn and gray poole, . the new treasury of science, ed. harlow shapley, etc., . food in history, reay tannahill, . home, a short history of an idea, witold rybczynski, . english villagers of the thirteenth century, george c. homans, . pelican history of england: . roman britain, i.a. richmond, . the beginnings of english society, dorothy whitelock, . english society in the early middle ages, doris stenton, . england in the late middle ages, a.r. myers, . tudor england, s.t. bindoff, . england in the seventeenth century, maurice ashley, the end index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; 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tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen the history of the last trial by jury for atheism in england: a fragment of autobiography submitted for the perusal of her majesty's attorney-general and the british clergy. by george jacob holyoake i was present in the court, to witness the trial of george jacob holyoake. i heard wooler and hone defend themselves successfully in ; but i would prefer to be declared guilty with holyoake to being acquitted on the ground of wooler and hone.--richard carlile. london: james watson, , queen's head passage, paternoster row. . to william john birch, m.a., of new inn hall, oxon. in whom free discussion has found an accomplished defender and munificent friend; who was first to help us when a friend is twice a friend, when we were unknown and struggling; this history of six months imprisonment preface. the events, more than half of which are newly narrated in this 'history,' are recited from recollection. it is not pretended that all the conversations took place with the brevity with which they are given here. in the lapse of eight years there is much which i must have forgotten; but what i have told i distinctly remember, and the actors living will not, i think, contradict it. as, by a creditable improvement in english law, the recommencement of prosecutions for (ir)religious opinion can originate with the attorney-general alone, i have ventured to hope that, if this narrative should fall into the hands of that officer for the time being, it may present some reasons to him why this 'last trial by jury for atheism' should be the _last_. there are some passages in these fragments over which some will be sad with me. others will assume them to be written for effect; for such, let me say, they were not written at all. these pages will leave me for the press with much more pleasure if i can believe that no one will connect them with me, but read them as a posthumous record of bygone events. at times i thought i would omit all incidents of feeling; but i felt, that if i did so the narrative would not represent the whole (personal) truth of these proceedings--and, as they stand, they may serve to suggest to some a doubt of the correctness of the oft-repeated dictum of the rev. robert hall, that 'atheism is a bloody and a ferocious system, which finds nothing above us to excite awe, nor around us to awaken tenderness.' whether these are sufficient reasons for the purpose, i know not; but this i know--they are the true ones. as i very much dislike being an object of pity, those will much mistake me who suppose that this narrative has been written to excite it. in my estimation, imprisonment was a matter of conscience. i neither provoked prosecution nor shrank from it; and i am now as far from desiring it as i trust i ever shall be from fearing it. i do not pretend to despise public approval, but i think it should be regarded as a contingent reward, not as the sole motive of action; for he who only works while the public (always fickle in memory) care to remember him, is animated by a very precarious patriotism. as i have once, before said, it is an encouragement to me that others may profit by any public principle i may assist in maintaining: but my interest in it is personal also. though no one else desired freedom, it is enough for me that i desire it; and i would maintain the conflict for it, as best i could, though no one else cared about it; and, as i choose to make the purchase, i do not higgle about the price. tyranny has its soldiers, and why not freedom? while thousands daily perish at the shrine of passion, what is the pain of a sacrifice now and then for public principle or personal freedom? g. j. h. the history of the last trial by jury for atheism. chapter i.--before the imprisonment. that day is chilled in my memory when i first set out for cheltenham. it was in december . the snow had been frozen on the ground a fortnight. there were three of us, mrs. holyoake, madeline (our first child), and myself. i had been residing in worcester, which was the first station to which i had been appointed as a social missionary. my salary ( s. per week) was barely sufficient to keep us alive in summer. in winter it was inherent obstinacy alone which made us believe that we existed. i feel now the fierce blast which came in at the train windows from 'the fields of tewkesbury,' on the day on which we travelled from worcester to cheltenham. the intense cold wrapped us round like a cloak of ice. the shop lights threw their red glare over the snow-bedded ground as we entered the town of cheltenham, and nothing but the drift and ourselves moved through the deserted streets. when at last we found a fire we had to wait to thaw before we could begin to speak. when tea was over we were-escorted to the house where we were to stay for the night. i was told it was 'a friend's house.' cheltenham is a fashionable town, a watering, visiting place, where everything is genteel and thin. as the parlours of some prudent house-wives are kept for show, and not to sit in, so in cheltenham numerous houses are kept 'to be let,' and not to live in. the people who belong to the apartments are like the supernumeraries on a stage, they are employed in walking over them. their clothes are decent--but they cannot properly be said to wear them: they carry them about with them (on their backs of course, because that mode is most convenient) but simply to show that they have such things. in the same manner eating and drinking is partly pantomime, and not a received reality. such a house as i have suggested was the 'friend's house' to which we were conducted till lodgings could be found. we were asked to sit by the kitchen fire on 'the bench in the corner,' and there we sat from eight till one o'clock, without being asked to take anything to eat. madeline, deprived of her usual rest, continued sucking at the breast till her mother was literally too exhausted to speak. a neighbouring festivity kept my 'friends' up that night till two o'clock--up to which time we saw no prospect of bed or supper. as we entered the house, eleanor, with a woman's prescience, said 'george, you had better go and buy some food.' 'buy food,' i replied, in simplicity, 'the people at this fine house will be outraged to see me bring in food.' retribution was not far off. i repented me of my credulity that night. when at last i clearly comprehended that we were to have nothing to eat, i proceeded to take affairs into my own hands, and being too well assured of the insensibility of my host, i did it in a way that i conceived suited to his capacity, and began as follows: 'we have talked all night about social progress, and if you have no objection we will make some. and if eating,' i added, 'be not an irregular thing in your house, we will take some supper.' 'i am very sorry to say,' he answered, 'we have nothing to offer you.' 'charge me bed and board while we are with you,' i rejoined, 'but let us have _both_. you have bread, i suppose?' 'we have some rice bread.' 'perhaps you will toast it.' 'will you have it _toasted?_ 'i will. could you not make coffee?' 'we have no coffee.' 'tea?' 'we have no tea.' 'any water?' 'no _hot _water.' 'any butter?' 'yes, we have _salt_ butter.' 'then put some on the bread,' i added, for he did not even propose to do that. i had to dispute every inch of hospitality with him. my 'friend,' mr. v., was an instance of that misplacement of which plato speaks in his 'republic' what a capital conservative he would have made! no innovation with him--not even into his own loaf! i was obliged to take the initiative into the 'salt' butter. after seeing the bread toasted, and buttering it myself, to make sure that it was buttered, i put on my hat and went into the streets, in search of material out of which to manufacture a cordial, for eight hours had then elapsed since eleanor had had any sustenance, and my good host's choice reserve of cold water did not seem quite adequate to revive her. when i reached the dark streets, to which i was so absolute a stranger, not knowing where i stood on the slippery ground, made so by frozen rain on a bedding of snow, i had not gone (or rather _slipped_) far before i was fairly lost. like the sense in a rousseauian love-letter, i neither knew whence i came nor whither i was going, and when i succeeded in my errand it was at the last place at which i should wish to be found. during my absence that voluptuous caterer, 'mine host,' whom i had left behind--whose counterpart maginn must have had before him when he drew the portrait of 'quarantotti'--had proceeded so far as to boil some water. the evening ended without inconsistency, and the bed corresponded with the supper. the next day i took lodgings, where, expecting nothing, i was no longer disappointed. but on this occasion, profiting by the experience of the preceding night, i went provided with a small stock of loaves and chocolate. my stay in cheltenham was more agreeable than was to be expected after such an introduction; but i remember that i had to pay my expenses back again, and though they only amounted to s., i felt the want of them for a long time afterwards. yet cheltenham was not without generous partizans, but, as is common in the incipiency of opinion, they were at that time among that class who had fewest means. the experience here recounted was a sample of that frequently recurring, but not exactly of the kind on which vanity is nurtured, as the reader will think as he reverts (from a speech to be recited) to these incidents. he who reads thus far will acquit me of any premeditation of disturbing the peace of the religious inhabitants of cheltenham, for it is certainly the last town i should have selected as the scene of such an occurrence as the one which i have to narrate. my next location was in a northern manufacturing town, where i was treated like its iron-ware--case hardened. my salary there of s. per week was a subject of frequent discussion by the members of the branch. for this sum i taught a day school and lectured on sunday. and as he who lives the life of a child all the week (as he must do who teaches children to any purpose) finds it hard to live that of a man on sunday, my duties were wearying and perplexing. those who grudged my salary made no sufficient allowance for that application necessary for the discharge of my duties--an application which often commenced long before they were up in the morning, and continued long after their mechanical employment was over at night. not comprehending myself, at that time, that they who work for the improvement of others must not calculate on their appreciation as an encouragement, but as a _result_, i was thrown into that unpleasant state in which my pride incited me to stop and my duty to go on. it was not till subsequent to my return from glasgow, four years afterwards, that i mastered the problem thus raised which so many have been ruined in solving. though an anti-priest, my treatment was that of a priest. my congregation, as is the case with most freethinkers, objected to the pay of the priest, when the true quarrel was with error, and not with payment: for if a man has the truth, it is well that it should be his interest to hold it. but dissent, objecting to the pay of others, has been left without pay itself--hence its apostles have been reduced to fight the lowest battles of animal wants, when they should have been fighting for the truth. dissent has too often paid its advocates the bad compliment of supposing, that if placed within reach of competence they would either fall into indolence or hypocrisy. it has acted practically upon the hypothesis, that the only possible way of ensuring their zeal and sincerity was to starve them--a policy which leaves progress to the mercy of accident. for a long period the operation of this policy chilled me. my initiation into affairs of progress was in company with men who estimated, above all other virtues, the virtue which worked for nothing. they would denounce the patriotism of that man who accepted a shilling for making a speech, although it had cost him more to compose it than those who heard it would probably give to save their country. nine tenths of the best public men and women i have known, have turned back at this point. not any new conviction--not any bribe of the enemy, but the natural though unwise revolt against being considered mendicants, has forced them back into supineness, indifference, or even into the very ranks of oppression. true, i felt that he who labours with his brains is worthy of his hire as well as he who labours with his hands. as often as i read a book or heard a lecture, which threw new light on the paths of life, i found that it not only relieved me from the dominion of ignorance, but imparted to me the strength of intelligence. i felt indebted to the author and speaker, for i found that knowledge was not only _power_, but _property_. i knew all this, but painful years passed over me before i acquired the courage to offer what instruction i had to impart as an article of commercial value. those who have encountered this kind of experience know that the feeling it engenders is one of indifference, and that an unusual speech would arise in a cold sense of duty, and not in wantonness or wickedness. thus much will inform the reader of the circumstances under which i spoke the alleged blasphemy in cheltenham. a fellow-missionary, mr. charles southwell, had, in conjunction with mr. chilton and mr. field, set up an atheistical periodical in bristol, entitled the _oracle of reason_--which the authorities attempting forcibly to put down, mr. southwell was sentenced to twelve months' imprisonment in bristol gaol. on a visit to him i walked ninety miles from birmingham to bristol, and as my way lay through cheltenham, i staid a night in that town to deliver a lecture on 'home colonisation as a means of superseding poor laws and emigration.' at the conclusion of the lecture i instructed the chairman to make the announcement, which i still make after my lectures, viz., that any of the audience may put relevant questions or offer what objections they consider useful--whereupon a person stood up of the name of maitland, a teetotaller, and sort of local preacher, and complained that 'though i had told them their duty to man, i had not told them of their duty to god,' and inquired 'whether we should have churches and chapels in community?' i answered thus: 'i do not desire to have religion mixed up with an economical and secular subject, but as mr. maitland has introduced questions in reference to religion i will answer him frankly. our national debt already hangs like a millstone round the poor man's neck, and our national church and general religious institutions cost us, upon accredited computation, about twenty millions annually. worship being thus expensive, i appeal to your heads and your pockets whether we are not too poor to have a god? if poor men cost the state as much, they would be put like officers upon half-pay, and while our distress lasts i think it would be wise to do the same thing with deity. thus far i object, as a matter of political economy, to build chapels in communities. if others want them they have themselves to please, but i, not being religious, cannot propose them. morality i regard, but i do not believe there is such a thing as a god.* the pulpit says "search the scriptures," and they who are thus trepanned get imprisoned in bristol jail, like my friend mr. southwell. for myself, i flee the bible as a viper, and revolt at the touch of a christian.' perhaps this reply was indecorous, but it was nothing more, and as it was delivered in a tone of conversational freedom, it produced only quiet amusement on the meeting. the next day i continued my journey to bristol. a day or two after i received the _cheltenham chronicle_, commonly called the rev. francis close's paper, it being the organ of his party, in which i read the following paragraph--written with that exaggerated virulence which archdeacon hare has subsequently deprecated as the bane of religious journalism, but which at that time was considered as a holy ornament:-- * i do not remember using this phrase, but as the witnesses reported it perhaps it was so; but i still incline to the opinion that it was an expression they fell upon in stating their impressions of the meeting to their employers, and all working in one office, they fell into one story, either through inadvertence or from precaution. atheism and blasphemy.--on tuesday evening last a person named holyoake, from manchester, (?) delivered a lecture on socialism (or, as it has been more appropriately termed, devilism), at the mechanics' institution. after attacking the church of england and religion generally for a considerable time, he said he was open to any question that might be put to him. a teetotaller named maitland then got up, and said the lecturer had been talking a good deal about our duty to man, but he omitted to mention our duty towards god, and he would be glad to know if there were any chapels in the community? the socialist then replied that he professed no religion at all, and thought they were too poor to have any. he did not believe there was such a being as a god, and impiously remarked that _if there was_* he would have the deity served the same as government treated the subalterns, by placing him upon half-pay. with many similar blasphemous and awful remarks, which we cannot sully our columns by repeating, the poor misguided wretch continued to address the audience. to their lasting shame, be it spoke, a considerable portion of the company applauded the miscreant during the time he was giving utterance to these profane opinions. we have three persons in our employ who are ready to verify on oath the correctness of the above statements. we therefore hope those in authority will not suffer the matter to rest here, but that some steps will immediately he taken to prevent any further publicity to such diabolical sentiments.--ed. cheltenham chronicle.* * this is an interpolation. some have censured the openness of my answer to mr. maitland as being inexpedient. it is not impossible to justify it on that ground, but i have an aversion to do it. expediency has nothing to do with what a man shall say. expediency may close the mouth, but it has no power over the speech if the mouth once opens. a man may keep silence if he chooses, but if he does speak he has no alternative but to speak that which is frank and true. but at that time there were political reasons why i should not evade the question put to me. the _odd fellow_ of mr. hetherington (under the editorship of w. j. linton) had shortly before contained an able article beginning thus:-- the world need not be much frightened at the present race of socialists. however heinous their doctrines may be thought, there need be no fear, they will not act in too close accordance with them. for ourselves, having been among them at various times, we have never yet been able to discover any certain marks, whether of manner, of opinion, or of conduct, whereby to distinguish them from the mass of professing christians. however heterodox their innermost sentiments, they usually maintain as decent an appearance of conformity with custom as the most worldly and orthodox could desire. this was a character which no progressive party could live with, and as the hypocrisy here charged upon us was generally believed, and not wholly without reason, it became necessary either to give up the party or refute the accusation. the attack on mr. owen's friends, by the bishop of exeter in the house of lords, had been evaded, not met, and a noble opportunity, such as bigotry seldom affords to a rising party, had been suffered to pass away unused. the enemy triumphed. in this very town of cheltenham a young poet, named sperry, who betrayed freethink-ing tendencies, had been called upon to recant. he did so, and then he was treated with contempt by those who intimidated him. they first destroyed his moral influence, and then despised him. i had therefore sufficient public reasons for not tempting a similar fate. if i had refused to reply, it would have been said i held opinions too horrible to avow. had i evaded the answer i should have been considered a time-server, and if i answered frankly there were the legal consequences in prospect. i was not very much skilled in policy, but i knew this much that when a man cannot take care of consequences, he ought to take care of the credit of his cause. a little anticipating this history i may say that the expediency of the course i took, if the expediency must be defended, was shown in the altered tone of the authorities, both in cheltenham and gloucester, after my trial. instead of that contempt with which persons holding socialist opinions are treated, there was a somewhat respectful recognition of them. however crude might be considered my defence of my views, nothing escaped me that could be distorted into a willingness to avoid any suffering at the expense of my adherence to the principles i had adopted. many persons who would not have spoken to me before came and expressed regret at what had happened, and i met with many instances of regard from persons who had formerly despised those with whom i acted. i was indebted to the _odd-fellow_ of july , then edited by eben jones, author of 'studies of sensation and event,' for the fairest statement of my conduct and of the point in question, which the press gave. it was thus expressed:-- we cannot refrain from saying, that under the peculiar circumstances, mr. holyoake (presuming his disbelief in a god to be sincere) could not have said other than he did say, and at the same time have continued honest. it is true he was not asked, 'do you believe in a god?' but a question was put to him which assumed his belief in a god, and had he not testified at once his disbelief, he would have sanctioned the false assumption: and if not a liar, would have been at least the permitter of a lie; between which is no distinction recognised by an honourable man. in arguing thus we would not express any sympathy whatever with mr. holyoake's atheism, we are merely concerned to show that it was not mr. holyoake's right alone, but absolutely his duty, to say that 'he did not believe in a god.' it was his duty, if it be the duty of man to be honest; he could not have spoken otherwise, unless he had 'lied against his heart,' and lied towards mankind. the next number of the aforesaid _cheltenham chronicle_ brought me this further notice:-- holyoake the blasphemous socialist lecturer.--in reference to a paragraph which appeared in the last _chronicle_ regarding this monster, the magistrates read the article alluded to, and expressed their opinion that it was a clear case of blasphemy. in order to check the further progress of his pernicious doctrines, the superintendent of police was ordered to use every exertion to bring him to justice. on reading this paragraph i lost no time in setting out for cheltenham, to hold a public meeting and justify myself to the town. foot-sore and weary--for the journey was more than thirty miles, and the day very hot--i reached cheltenham on the st of june, and proceeded as privately as a 'monster' could to my friends the adamses. the next night i slid like sleep into the meeting, lest the police should prevent me from addressing it. mr. leech, a leading chartist, presided, and the meeting was addressed by messrs. parker, jun., geo. adams, w. bilson, and j. b. lear. the chartists of cheltenham at that time held possession of the mechanics' institution, and they were threatened with the loss of it, if they let it to me to speak in any more. but as i required it in self-defence they generously disregarded the menace, and permitted me the use of it. my friends in the distant town of newcastle-upon-tyne afterwards gracefully acknowledged this kindness by making a collection for mrs. holberry, the wife of a sheffield chartist who had perished in prison. before i had been long in the meeting, superintendent russell came in with about a dozen men, who were arranged on each side the door, and their glazed hats formed a brilliant, but a dubious back-ground for a meeting on free-discussion. i spoke an hour after they came in. so rare an audience was not to be thrown away, and i thought we might convert some of them. at the conclusion superintendent russell, who had the politeness to wait till we had done, intimated that he had instructions to apprehend me. i asked for his warrant. he said he had none. it was in vain that i protested against the irregularity of the proceeding. he replied that his instructions were imperative upon him--and it was thereupon arranged that i should walk down to the station with mr. hollis, a well-known gun maker of cheltenham, and there, the meeting following, we arrived in procession between eleven and twelve o'clock. to the truth, it is no great proof _a posteriori_ of a man's extravagance, that he should be involved in legal proceedings in cheltenham on account of freedom of speech. owing to priestly and conventional influences, that town will furnish a jury who would, under direction, bring in any man guilty of blasphemy who boiled his tea-kettle on a sunday. not long before the time now spoken of, a mormon preacher, holding forth there, happened to say that the elements of euclid were as true as the bible: and for this he was indicted for blasphemy, and was only saved from imprisonment by the grand jury (who must have had infidel tendencies) throwing out the bill. on the morning after my apprehension i was taken before the rev. dr. newell, r. capper, and j. overbury, esquires, magistrates of cheltenham. the rev. dr. newell ought to have had the pride, if not the decency, to have kept away. the _cheltenham chronicle_ reported that' george jacob holyoake, who was described as a socialist lecturer, and as the editor of the _oracle of reason_, was charged with delivering atheistical and blasphemous sentiments at the mechanics' institution, on the evening of the th of may. the prisoner had been apprehended last night, after delivering another lecture at the same place. the affair appeared to have caused great sensation, and several persons attended at the office anxious to hear the examination. amongst the number were some individuals who, without the blush of shame mantling their cheeks, acknowledged themselves friends of the accused.' mr. bubb, a local solicitor, a particularly gross and furious man, then said--'i attend to prefer the charge of blasphemy, and i shall take my stand on the common unwritten law of the land. there have been a variety of statutes passed for punishing blasphemy, but these statutes in no way interfere with the common unwritten law. (mr. capper nodded assent.)* any person who denies the existence or providence of god is guilty of blasphemy, and the law has annexed to that offence imprisonment, corporal punishment, and fine. i shall give evidence of the facts, and i shall ask that he be committed for trial, or required to find bail for his appearance. the offence is much aggravated by his having put forth a placard, announcing a lecture on a subject completely innocent, and having got together a number of persons, has given utterance to those sentiments which are an insult to god and man.' * mr. bubb took his stand on the common law because his object was to make it a _sessions_ case, and to take it out of the statuary law, which ( & will. , c. ) would have required that information of the words spoken should be laid before a justice of the peace within four days from their utterance, and would likewise have implied a trial at the _assizes_. the assertion that i had employed duplicity in choosing my subject was quite gratuitous. addressing the bench, i asked whether it was legal in these cases to apprehend persons without the authority of a warrant? mr. capper replied, 'any person in the meeting would be justified in taking you up without the authority of a warrant,' which showed that the bench were better read in bigotry than in blackstone. i said it was customary in other towns, where bigotry existed to a greater degree even than it did there, for information to be laid and a regular notice served. mr. capper said, 'we refuse to hold an argument with a man professing the abominable principle of denying the existence of a supreme being,' this was not a very legal way of getting rid of my objections, but it answered in cheltenham. two witnesses, james bartram and william henry pearce, both of the _chronicle_ office, were adduced to report the words that formed the ground of the indictment. neither of them could recollect anything else but the objectionable words reported in their own paper, and to these they did not swear positively, but only to the 'best of their belief.' mr. pearce was not produced at the trial at the assizes, he having no local reputation but that of a dog-fancier and fighter, which did not render him a creditable authority on matters pertaining to religion. bartram's sister was a socialist, and she came to me some years after, in manchester, to apologise for the disgrace brought upon her family by the weakness or the ignorance of her brother. mr. overbury said he considered the case satisfactorily proved, and added, 'whether you are of no religion _is of very little consequence to us_, but your attempt to propagate the infamous sentiment that there is no god, is calculated to produce disorder and confusion, and is a breach of the peace.' this was the remark of an ill-informed politician rather than of a christian. being required to enter into my own recognizances of £ , and find two sureties of £ each, mr. partridge became one, and mr. henry fry, editor of the _educational circular_, offered himself as the other. but the rev. dr. newell objected to mr. fry's bail, on the ground that he did not swear positively that he was worth £ when all his debts were paid. he swore only that 'to the best of his belief he was so. i reminded the bench that they had accepted the evidence of the witnesses against me on the same ground, namely 'the best of their belief.' hereupon the rev. dr. newell, with an air of outraged morality, exclaimed 'come, come! we'll have no quibbling.' i answered that i did not propose to quibble, for if that had been to my taste i might have avoided standing there at that moment. mr. bubb then interjected that he should demand twenty-four hours' notice of bail. another gentleman then offered himself, whom i desired to sit down and let the bench take their own course. this indifference with regard to the bench incensed them very much. mr. capper said, 'even the heathens acknowledged the existence of a deity. if you entertain the same pernicious opinion on your death-bed you will be a bold man indeed. but you are only actuated by a love of notoriety.' i only answered, 'why do you address me thus, since you will not allow me to reply?' and i turned away repeating to myself the words of sir thomas browne--'there is a rabble amongst the gentry as well as the commonalty; a sort of plebeian heads, whose fancy moves with the same wheel as these: men in the same level with mechanics, though their fortunes do somewhat gild their infirmities, and their purses compound, for their follies.' but i ought to say that during these proceedings the people in the court, of juster feeling than the magistrates, frequently expressed their disapprobation of the speeches made to me. mr. capper's assertion that i was only actuated by a love of notoriety, were just the words to do me injury. the respectable people near, and the intelligent people at a distance, would believe the magistrate and disbelieve the sceptic, who had no friends to rebut the imputation. the vulgar bearing of this brutal old man lingered long in my memory as the most distinct thing of these proceedings. i should have thought less of it had it not come from an old man. the aged always inspire me with reverence, in their kindly aspects. they are the links which nature perpetuates between old time and our time--the human chroniclers of an experience the young can never know. they have followed the hearse of the old world, and are the legatees of time, who has bequeathed to them his secrets and his conquests, which they in their turn distribute to us. when living at islington, in , i frequently passed, but not without sadness, nor sometimes without tears, an old man who stood near the merlin's cave to beg. he resembled one whom i cannot name. i could see on his brow the fresh traces of a struggle still going on between dignity and destitution. and i often gave him the price of the biscuit intended for my dinner, in the secret hope we all have in a kind act that some one else may repeat it to those we love; and i indulged the hope that others might approach with the same respectful feelings him to whom i have alluded, if ever, with untamed pride and broken heart, he should stand in his grey hairs on the high way to beg--which i have dreaded through so many years. when taken back to the station-house, captain lefroy, who was at the head of the police, introduced me to mr. pinching, surgeon of the same corps. the captain, in a gentlemanly way, inquired if i would allow mr. pinching to reason with me on my opinions? i said, 'certainly.' mr. pinching asked me the irrelevant question 'did i believe in jesus christ?' and began a dry, historical argument to prove that there was the same evidence for the existence of jesus christ as for that of henry the fourth. i said, 'the argument is unnecessary with me. i do not care to argue whether he existed or not. my inquiry is not whether he lived, but what he _said._' mr. pinching's next speech was delivered with an air of sharp authority, and he began to address me rather rudely. he asked me was it not robert owen who made me an atheist? i replied, mr. owen himself was not an atheist. for myself, i had not become so till after the imprisonment of mr. southwell, which had led me to inquire into the grounds of religious opinion more closely than i had before done, and it had ended in my entire disbelief. mr. pinching now became impatient and abusive, allowing me no opportunity of replying, and i said 'stop! stop! sir, you must not treat me as a prisoner if you intend me to hear you. unless you converse with me upon equal terms i shall not answer you.' lefroy laughed, and said, 'come! come! pinching, i think you are not quite fair. after this mr. pinching became more abusive, and i turned away--when he ended the conversation by saying, 'i am only sorry the day is gone by when we could send you and owen of lanark to the stake instead of to gloucester gaol.' not allowed to wait twenty-four hours to see if i could obtain bail, i was soon after sent off to gloucester, nine miles away, the same afternoon, where the difficulty of negotiating my release was so much increased that it took me a fortnight to do it. after my conversation with mr. pinching i was shut up in a very filthy place with a lousy man. i was handcuffed with small old irons that pinched my wrists, and i begged to have another pair of handcuffs put on, which was done: then i was made to walk through cheltenham town and suburbs, and afterwards through gloucester city, with the hand irons on. as i had walked thirty miles to be apprehended, they had no reason to suspect me of making my escape; nor was it customary to handcuff prisoners conveyed to gloucester on foot. in my case it was done to pain and degrade me. a memorial of a public meeting, sent from the town of cheltenham to the house of commons, on this subject, stated 'that notwithstanding mr. holyoake offered no resistance to any officer or procedure, and was at the same time in very delicate health and much exhausted, yet it was deemed necessary to lock both his hands in irons and make him walk to gloucester--a distance of near nine miles--on a most sultry day, but on the way thither his friends interfered and obtained leave for him to ride, on condition only that they should pay his expenses as well as the expenses of two policemen to accompany him.' and it may be added that though i sat an hour at the station, waiting for the train, my hands were not unlocked. the same memorial also alleged 'that the conduct of the magistrates during the proceedings indicated a predisposition to punish mr. holyoake, independently of any evidence which he might have offered in defence of his own conduct.' the member for bath, to whom this memorial was entrusted, paid to it the most generous attention, and immediately returned the following reply:-- london, june rd, . sir,--the petition you sent me is of a nature that demands serious inquiry, and i thought i should best discharge my duty towards the petitioners and mr. holyoake by at once addressing myself to sir james graham. he has very promptly taken up the inquiry, and i have no doubt but that substantial justice will be done. if, however, the petitioners should hereafter deem that justice has not been done, i can present their petition after the inquiry which has been undertaken by the home secretary has been closed. i have taken this liberty with the petition on my own responsibility, hoping that the petitioners will here trust to my discretion, and they for the moment will put confidence in my judgment. i will write you word so soon as i hear from the home secretary, who has now the petition in his hands for the purpose of immediately instituting a searching inquiry. i am, sir, your obedient servant, mr. h. fry. j. a. roebuck. the committal the police bore with them was to the following effect:-- [gloucestershire to wit.]--to all and every of the constables and other officers of the peace for the said county, and to the keeper of the gaol at gloucester in the said county-- whereas george jacob holyoake is now brought before us, three of her majesty's justices of the peace in and for the said county, and charged, on the oaths of james bertram and william henry pearce, with having, on the twenty-forth day of may last, at the parish of cheltenham in the said county, wickedly and profanely uttered, made use of, and proclaimed, in the presence of a public assembly of men, women, and children, then and there assembled, certain impious and blasphemous words against god, and of and concerning the christian religion, to wit, 'that he was of no religion at all,' and 'that he did not believe there was such a thing as a god,' and 'that if he could have his way he would place the deity on half-pay, as the government of this country did the subaltern officers,' against the peace of our lady the queen, her crown and dignity. and whereas we, the said justices, have required the said george jacob holyoake to become bound in the sum of one hundred pounds, and to find two sufficient sureties in the sum of fifty pounds each, conditioned for the appearance of the said george jacob holyoake at the next quarter sessions of the peace, to be holden at gloucester, in and for the said county, and then and there to answer to any bill of indictment that may be preferred against him for his said offence, which he hath neglected to do. these are therefore in her majesty's name to command you, and every of you the said constables, forthwith safely to convey and deliver into the custody of the keeper of the said gaol the body of the said george jacob holyoake. and you, the said keeper, are hereby required to receive the said george jacob holyoake into your said custody, and him safely keep until the said next general quarter sessions of the peace, to be holden at gloucester, in and for the said county, or until he become bound and finds such sureties as aforesaid, or until he shall be thence delivered by due course of law. and for your so doing this shall be to you and every of you a sufficient warrant. given under our hands and seals the third day of june, in the year of our lord one thousand eight hundred and forty-two. robt. capper, j. b. newell, joseph overbury. twenty-four hours' notice of bail to be given. i hereby certify that the above is a true 'copy' of a warrant, by virtue of which the within named george jacob holyoake was brought into custody the rd day of june, . witness my hand, thomas moore, clerk to the county gaol of gloucester. some of the magistrates characterised the speech for which i was committed as 'felony,' 'a breach of the peace,' etc., and i was told that my committal was made out for 'felony.' serious comments were made thereupon by the public. able strictures on the subject were made by 'philo publicola,' in the _weekly dispatch_. but the magistrates grew wiser as they grew cooler, and on the copy of the committal subsequently furnished to me, the charge of felony did not appear. a very curious circumstance deserves mentioning here. the magistrates being censured in the house of commons for their 'irregularities' in my case (as will be explained in my defence further on) an attempt was made to fix the blame on mr. russell, superintendent of the police. this induced me to address the following letter to the editor of the _cheltenham free press_:-- sir,--observing an attempt has been made in parliament by the hon. craven berkley to fix the blame of my 'harsh treatment' on the constables of your town, and to implicate superintendent russell, i beg to say that after my committal i never saw mr. russell, and never once said, or suspected, that the harshness exercised towards me, while ostensibly in his custody, originated with him. his courtesy to me on the night of my apprehension, of which i retain a lively sense, forbids such a conclusion. i shall be glad if you will insert this in your next number. i can never consent to purchase public sympathy by a silence which may unjustly sacrifice any person's interest. i was justified in making the complaints i have, but would rather they were for ever unredressed than that an innocent man should suffer. birmingham, july , . g. jacob holyoake. soon after mr. russell left the corps, and appears to have been offered up by the magistrates as a sacrifice for the irregularities _they_ had committed. on my arrival my pockets were searched, and even my pocket-book and letters taken from me. this i felt not only as an indignity, but also as a breach of faith. before leaving cheltenham, and when in communication with my friends, i inquired if my papers would be taken from me at gloucester, and the officers answered 'no,' (but they must have known differently). trusting their answer, however, i brought with me papers i should not otherwise have brought. perhaps i was fevered after my walk, but the cell i was put into gave me a new sense. there had been times when i had wished for a sixth sense, but this was not the sense i coveted, for it was a sense of suffocation. the bed was so filthy that i could not lie down, and sat on the side all night. when taken into the general room next morning the prisoners surrounded me, exclaiming,' what are ye come for?' as i made no reply, another observed, 'we always tells one another,' 'oh! blasphemy,' i replied. 'what's that,' said one. 'aren't you 'ligious?' said another. but as these rustics were happily unacquainted with doctrinal piety, they said nothing rude; and seeing my loaf unbroken, and that i could not eat, 'here,' said four or five at once, 'will you have some of this tea, zir?'--which was mint-tea, the reward of some extra work, and the nicest thing they had to offer. when the chaplain of the gaol, the rev. robert cooper, came to see me, i told him that before i took anything from him for my soul, i wanted something from him for my defence; and i demanded my note book and papers. mr. samuel jones, a visiting magistrate, brought me a few pencil notes which i had made during my examination in cheltenham and some private papers, but he withheld many others relating to matters of opinion, saying that _he_ 'did not think them necessary to my defence.' the clergyman has a veto on all books admitted, and of a list which i gave him, which i wanted to read for my trial, he only allowed me thirteen. he said the others 'were of an unchristian character,' and he could not let me have them. 'i told him i was not going to make an orthodox defence. he would not relax, so i would not have any spiritual consolation, and we lived on very indifferent terms. one day mr. bransby cooper, and mr. samuel jones (just mentioned), both old magistrates, came to visit me. mr. jones, i was told, had at one time been a preacher among the methodists. he told me he would be kind to me, but all his kindness was religious kindness--the worst kindness i have ever experienced. i was then the sole occupant of the queen's evidence side of the prison, a place i had chosen as i preferred to be alone. i had a large yard and all the cells to myself. in this solitary place these magistrates visited me. after teazing me with leslie for a long time, mr. bransby cooper concluded thus--'now! holyoake, you are a deist--are you not?' i shook my head. 'you cannot be an atheist,' he continued, 'you don't look like one.' he said this, i suppose, seeing no horns on my head, and no eyes on my elbows, as he expected. i answered that i felt very unpleasantly how much i was in their power, and had therefore some reason to desire to oblige them. though sorry to say what might outrage them or look like obstinacy, yet out of respect to my own conscience i must say that i _was_ an atheist. upon these they both flew into indignant revulsions, and shouted 'a fool! a fool!' till the roof rang. capt. mason (the governor), who accompanied them, turned away a few paces, with the air of one not caring to be witness of so much rudeness. * see report of gloucester trinity sessions in the county papers of that period. before leaving they said of course i should employ counsel to defend me. i answered, 'no, i should defend myself as well as i was able. barristers were not good at stating a case of conscience.' they urged, they even coaxed me to abandon the idea of defending myself; but finding me not to be deterred, they threatened me that it would aggravate my case--reminded me of hone and others, and said that the judge would put me down and not hear me. this menace, as will be seen hereafter, did me great harm. they reported my determination at the trinity sessions as though it was a matter desirable to be averted. mr. bransby cooper was a brother of sir astley cooper. he was formerly member for gloucester, and when he suspected that i did not regard his dignity sufficiently, he would slide in some remark about 'his friend' sir james graham, who was then secretary of state for the home department. bransby cooper was the senior magistrate at this time--a man of venerable and commanding aspect, generous to a fault in matters of humanity, harsh to a fault in matters of religion. on his way through the city, old women would way-lay him to beg. first raising his stick against them--then threatening to commit them as vagrants--they fled from him in mock terror, but knowing the generous feelings of the man they returned again, and before he reached home he would empty his pockets among them. one minute he would growl at me like an unchained tiger--the next he would utter some word of real sympathy, such as came from no one else, and at the end of my imprisonment i parted from him with something of regret. he had the voice of stentor, and though at first his savage roar shook me, at last i acquired an artistic liking for it, and his voice was so grand that i came to the conclusion that he had a natural right to be a brute. the old man, after his fashion, laboured very hard for my conversion. his son robert was chaplain of the gaol, and had i happily been brought over, the old man would have given the credit to his boy. my conversion was thus a sort of family speculation. those who sent me to prison in default of bail, took care to make bail impossible to me by intimidating those who would have become my sureties, and after two weeks' anxiety i was obliged to accept the generous offer of two friends in worcester--james barnes and john dymond stevenson--to come from that city and enter into recognizances for me, and i was indebted to them for my liberation, after sixteen days' imprisonment. so near was my trial upon my release that i had to return to gloucester within a fortnight. a great desire of my youth had been to see london. when i found myself suddenly shut up in gaol, in prospect of an indefinite term of imprisonment, which in my then state of health might prove fatal, my sole remorse was that i had never seen that city of my dreams. once again at liberty i made a short visit to my family in birmingham, and the next week found me in london. chafed and sad, with tremulous heart and irresolute step, it seems but yesterday that i walked through woburn place into the city in which i now write. its streets, its pride, its magnificence enthralled me, and its very poverty fascinated me because nearer to my destiny. savage and johnson had walked those squares houseless, and why not i. chatterton had perished in a garret, and garrets had something sacred in them. solitary in that two million multitude, i was hardly known to any one in it, yet when i remembered that i was in london i felt an enchanted gladness, and in all vicissitudes of fortune and chequered struggles with fate, i have walked its magical streets with undimmed joy, and it is to me still a fairy land, whose atmosphere of enchantment feels as if it would never leave me. how sweetly, how gratefully to me (as words never read before) came the notice the _weekly dispatch_ gave of my first lecture in london. all the night before i had sat up with ryall, answering correspondence and concerting my defence. when i reached the rotunda it was more fitting that i should have found a bed there than a rostrum, for when i rose to speak i was weak as well as timid. to succeed in any way in london was more than i ventured to expect, and the nature of the report in the _weekly dispatch_ inspired me with the hope of at least being tolerated. i hastened back to gloucester. either a secretary of state's order, or a bill had come into operation, i was never correctly informed which, removing my trial from the sessions to the assizes, which gave me an impartial judge to determine my case. at a sessions' trial the parties who had caused my imprisonment, and the magistrates who had shown themselves my personal opponents, would have sat on the bench to try me. though unable to proceed with my trial after having committed me, they put me to the expense of bringing my bail from worcester, and charged me £ s. for renewing my sureties. my arrest caused a demand for atheistical publications in cheltenham, which mr. george adams, partly as a friend to the free publication of opinion and partly from personal friendship to me, undertook to supply. in this he was joined by his wife, harriet adams, a very interesting and courageous woman. on monday evening, june th, at a public meeting called to consider the grounds of my own apprehension, mr. george adams was arrested for selling no. of the _oracle_, and forthwith conveyed to the station-house. as soon as a knowledge of the arrest came to the ears of mrs. adams, she went to the station-house to see her husband, when she, likewise, was served with a warrant for selling no. . mrs. adams says, (the account cannot be better rendered than in her own words) 'i went to see my husband at the station-house, when i was detained; a policeman was sent home with me to fetch my infant, and i had to leave four at home in bed. the man that went with me to the station was a rude fellow; he was quite abusive to me, telling me i should be locked up from my husband; saying, it was quite time such things were put a stop to. when we arrived at the station-house he would have locked me in a cell with drunken women, had i not sat down in the yard and insisted on seeing the superintendent, who then allowed me to sit up in a kitchen, where policemen were coming in and out all night. my husband was much troubled on my account.' the four children were left locked up in the house alone. mr. bubb's speech, when adams was brought up, is so curious a relic of provincial barbarism that i preserve it, or those who are told of it in time to come will regard the story as some malicious fiction. mr. bubb opened the charge by justifying himself and clients--'it has been said that we are prosecuting here for the entertaining of opinions merely. that proposition i deny. the entertaining of opinions is not opposed to law if people keep them to, themselves. if they step out of the way, and seek to propagate them by undermining the institutions of the country, by denying the existence of a god, by robbing others of "the hopes set before them," without offering the flimsiest pretext, it is the duty of all to prevent this. such is the opinion of those gentlemen who set on foot these proceedings, and no clamour of persecution will prevent them from doing what they believe to be their duty. and if there are any here present disposed to take up this unfortunate trade, i would assure them that as long as the law punishes, and the magistrates uphold the law, so long will they bring offenders to justice. so long as men say there is no god, or that the religion of the state is a farce and a fallacy, these gentlemen will not be deterred by any clamour.' if this threat were carried out the magistrates on every bench would have constant employment--especially if they would undertake, as mr. bubb appeared to promise, to ascertain whether or not we had the 'flimsiest pretext' to offer in defence of the course we took. adams and his wife were committed to take their trials at the sessions--in the wife's case it was purely vexatious, as there was no one bound over to prosecute her. yet adams, nearly blind from an inflammation of the eyes, and his wife with her child in her arms, were kept several days in attendance at gloucester--though the same law which prevented the court proceeding in my case, prevented the court from trying the adamses. in further aggravation of loss, £ s. d. were demanded for discharge of bail and entering new sureties--nor was time allowed to fetch the bail (after they were demanded) from cheltenham, the clerk announcing that they would be estreated at once. upon this i directed mr. and mrs. adams to go into court and say they were prepared to take their trial _then_, and there was no occasion to estreat the property of their friends. time was then allowed. mrs. adams was never tried. mr. adams's trial took place at gloucester assizes, immediately before my own. the passage from no. of the _oracle_, for which adams was indicted, was written by my friend mr. chilton, who was outraged at my imprisonment, and ran as follows:-- what else could be expected of men who deify a real or imaginary individual, a compound of ambition and folly, of mock humility and rampant tyranny; who, though called the 'prince of peace,' declared he came to bring a sword in the world? this hellish mission he performed to perfection, for never since his time has blood and misery ceased to flow from his dogmas and mysteries. as i was very anxious to save adams from consequences which he incurred through friendship to me, i advised him to let mr. thompson defend him. this gentleman began by sympathising with all the disgust invented by the counsel who opened the prosecution, and he ended by expressing adams's sorrow and contrition for what he had done--a contrition which he did not feel, and would rather have undergone much imprisonment than have had it said that he did. during the whole of the trials arising out of the _oracle_, mr. ralph thomas, barrister, was the only counsel who defended us in court without sacrificing us. taking warning by mr. thompson's example, i made it a rule to advise all our friends to defend themselves, and where unaccustomed to public speaking, to write a brief defence in their own language, and after some legal friend had revised it, to read it to the court. we do not want lawyers to defend our opinions, those opinions not being their own, but we want them simply to maintain our right to publish what are to us important convictions. instead of this they commonly agree with the crown that we are criminal for having a conscience, and then, in our name, recant with 'contrition' the opinions which we go into court to maintain. adams's sentence was delivered in the following words by mr. justice erskine:--'george adams, you have been convicted of the offence of publishing a blasphemous libel, and the libel which was proved to have been published by you was one of a most horrid and shocking character. whatever a man's opinions may be, he can have no right to give vent to them in that language. if there was evidence to prove that you were the author, or that you were engaged as an active disseminator, i should have thought it my duty to have inflicted on you a very serious imprisonment. although by the law of this country every man has a right to express his sentiments in decent language, he has no business to make use of such shocking language as this. but you have expressed, through your counsel, contrition; and trusting that this is the general feeling of your mind, i shall not think it necessary to pass on you a severe sentence this time. but if you ever offend again, it will then be known that you are determined to persevere, and it will be seen whether the law is not strong enough to prevent it. the sentence of the court is, that you be _imprisoned in the common gaol of this county for one calendar month._ i was with adams during the term of his imprisonment, and although his losses and the privations of his family were great, he never uttered a murmuring word. from first to last he behaved well, and mrs. adams, as women usually do, behaved better. it is worthy of remark that when a gentleman deposed that the character of mr. adams 'was a pattern of morality,' mr. justice erskine told the jury that 'had adams committed a robbery such a character might have weight, but in extenuation of religious offence it was of no service.' chapter ii. the trial the assizes opened on the th of august, , but my case did not come on till the th, mr. knight hunt (the author of the 'fourth estate') was the gentleman engaged to report my trial. as the judge was informed that i intended to defend myself he resolved to take my case last. this caused the assizes to extend into a second week. saturday came before the calendar was exhausted, and as there was no knowing whether my trial could be gone through in a day, the fear of trespassing on sunday led to the court's being ordered to open on monday, to the annoyance of javelin men kept there unexpectedly, to jury men who had left tills, ploughs, and orange baskets unprotected--and not least to my prosecutors, who saw with some consternation some £ added to the county expenses, for in cheltenham bigotry is greatly preferred when it is _cheap_. if ignorance would look upon its own degradation, let it spend a few hours in an assize court. one trial i witnessed was of two men for an offence which indeed arose out of depravity, but the depravity arose out of bad training and vicious circumstances. the oldest man, between forty and fifty, was sentenced to transportation for life to norfolk island, the most ferocious sentence an english judge can pronounce. when the man heard it, he bowed in genuine and awkward humbleness, and said, as he made a rustic bow to the bench, '_thank'ee, my lord!_' such abject humiliation of spirit i had never conceived before. ignorance never appeared to me so frightful, so slavish, so blind, as on this occasion. unable to distinguish a sentence passed upon him from a service done him, he had been taught to bow to his pastors and masters, and he bowed alike when cursed as when blessed. the measured contempt with which the words were spoken by the judge which blasted the man's character for ever--the scorn with which he was thrust out of the pale of society, never again to know freedom or reputation, made no impression on his dark and servile soul. that appalling weight of infamy falling on his head and on the heads of his children--for which he might justly have cursed society--only elicited from him a 'thank'ee, my lord!' if ignorance would see its own degradation, would feel the incalculable depth of its abjectness, let it sometimes sit for instruction in an assize court. the preliminary proceedings at the trial i shall render as mr. hunt gave them, in the third person--adding what, from various causes, was omitted at the time. on the morning of the trial the court-house at gloucester was very crowded. many ladies were present from all parts of the county: the wives of clergymen, and some of the nobility, were among them, attracted by curiosity, and by the opportunity which might never occur to them again of hearing, without loss of caste, a little heresy defended in person. the audience continued undiminished till ten o'clock at night. as the name of george jacob holyoake was called, he advanced and entered the dock. mr. ogden, the turnkey in charge of prisoners, directed him with the usual air of official impatience to take his place at the bar. mr. holyoake. do not be in a hurry. first hand me my books. mr. ogden. (looking indignantly at a large corded box lying outside the dock.) you can't have that box here. you must go to the bar and plead. mr. holyoake. nonsense. hand me the box. it being reluctantly handed up, mr. holyoake applied to the judge, mr. justice erskine, for the use of a table. mr. justice erskine. there is one. (he referred to some boarding behind the bar), and there mr. holyoake proceeded to arrange his books and papers--although the situation was not advantageous, it being lower than the bar where the prisoners usually stand. mr. holyoake employed twenty minutes in this operation, and when he had done, the dock resembled, a young bookseller's stall. mr. holyoake then advanced to the bar and bowed to the court. mr. justice erskine (who had waited with great patience). are you ready? mr. holyoake replied affirmatively, and the clerk proceeded to read the indictment as follows:-- [gloucester to wit.]--the jurors for our lady the queen, upon their oath, present that george jacob holyoake, late of the parish of cheltenham, in the county of gloucester, labourer,* being a wicked, malicious, and evil-disposed person, and disregarding the laws and religion of the realm, and wickedly and profanely devising and intending to bring almighty god, the holy scriptures, and the christian religion, into disbelief and contempt among the people of this kingdom, on the twenty-fourth day of may, in the fifth year of the reign of our lady the queen, with force and arms, at the parish aforesaid, in the county aforesaid, in the presence and hearing of divers liege subjects of our said lady the queen, maliciously, unlawfully, and wickedly did compose, speak, utter, pronounce, and publish with a loud voice, of and concerning almighty gog, the holy scriptures, and the christian religion, these words following, that is to say, 'i (meaning the said george jacob holyoake) do not believe there is such a thing as a god; i (meaning the said george jacob holyoake) would have the deity served as they (meaning the government of this kingdom) serve the subaltern, place him (meaning almighty god) on half-pay'--to the high displeasure of almighty god, to the great scandal and reproach of the christian religion, in open violation of the laws of this kingdom, to the evil example of all others in the like case offending, and against the peace of our lady the queen, her crown and dignity. * it was pure invention that described me as a' labourer.' it was a term of degradation in the county, and therefore employed--my profession was that of a mathematical teacher. mr. holyoake pleaded _not guilty_, and applied to have the names of the jury called over singly and distinctly. mr. alexander, counsel for the prosecution, said the offence being only a misdemeanour, the defendant had no right to challenge. mr. justice erskine. of course not, unless reasons are given in each case. clerk. the name of john lovesey is first. mr. holyoake. i object to lovesey. he sat on the bench when i was before the magistrates at cheltenham, and approved the proceedings against me. he is not disinterested in this matter. mr. justice erskine said that was not sufficient reason for challenging. loresey declared he 'shuddered at the crime of the prisoner,' and after some further conversation, the judge having observed it was 'as well to go,' lovesey left the box. mr. holyoake. in the case of mr. southwell he was allowed to challenge. mr. justice erskine. i am not bound by the recorder of bristol. the names of the other jurors having been called over, mr. holyoake objected to one on the ground of his being a farmer, and from his profession not likely to be acquainted with the nature of the question at issue.* mr. justice erskine said he could not sit there to listen to such objections. mr. holyoake saying he had no objection to urge which his lordship would allow, 'seven farmers, one grocer, one poulterer, one miller, one nondescript shopkeeper, and one maltster, were then impaneled to ascertain whether one george jacob holyoake had had a fight with omnipotence, whether he had done his utmost to bring the deity into contempt, whether he had fought omnipotence with force of arms, and had spoken against it or him with a loud voice.'** * a poulterer is called upon, under oath, to decide this great theological and philosophical question that has agitated the world for so many hundred centuries.......to make a poulterer a sovereign judge of theology is on a par with making the archbishop of canterbury a judge of poultry.--weekly dispatch, august . . [it has been objected to this that very likely his grace of canterbury is a very good judge of poultry.] ** 'publicola's' second letter to judge erskine.--weekly dispatch, sep , the following is the list of the jury:-- thomas gardiner, grocer, cheltenham, foreman. james reeve, farmer, chedworth. william ellis, farmer, chedworth. avery trotman, farmer, chedworth. william mathews, poulterer, cheltenham.' simon vizard, shopkeeper, oldland. isaac tombs, farmer, whitcomb. william wilson, maltster, brimpsfield. edwin brown, farmer, withington. bevan smith, farmer, harescomb. william smith, miller, rarnwood. joseph shipp, farmer, yate. mr. holyoake. can i have a copy of the indictment? mr. justice erskine. i had one made for you in consequence of your application to the court last week. mr. holyoake. yes, my lord, but after i had thanked you for your courtesy in so doing, i was asked s. d. for it by (not being able to call him by his name, mr. holyoake said) that sour looking gentleman there, (pointing to the clerk of the court, an individual as dusty and as forbidding as an old penal statute, and who always spoke to mr. holyoake like one. the court laughed, the judge frowned, the clerk looked indignant, but before censure could fall, mr. holyoake escaped into the next sentence, adding), after the numerous exactions i was subjected to at the sessions, after being brought here by the magistrates and then not tried, i did not think myself justified in paying any more, and the clerk refused it me. mr. justice erskine. i ordered a copy to be made for you, but did not think it necessary that you should have it on any other than the usual conditions.* mr. holyoake. can i be allowed to read the indictment against me? mr. justice erskine. certainly. the clerk then handed a copy to mr. holyoake, who on observing the counsel for the prosecution rise, left the bar and placed himself where he could face mr. alexander, with a view to take notes. the judge very courteously asked if mr. holyoake desired note-paper and pens, which he accepted, and: mr. alexander said--gentlemen of the jury: the defendant at the bar is indicted, not for writing, but for speaking and uttering certain wicked and blasphemous words. this person is not, as in the case previously brought before your attention,** the _vendor_, but he is the _author_ of the blasphemy. from the coincidence of words, he is the editor-mr. justice erskine. you must not proceed in that way. you must not assume-- * this copy of indictment occupied not quite one sheet of paper, for which eight shillings and sixpence were asked! **that of george adams. mr. alexander. i am aware, my lord, that i may not assert the identity of the defendant with the work alluded to--i was only going to draw the attention of the gentlemen of the jury to the coincidence of the words. but i will proceed with my case. the defendant, on the th of may last, issued placards for a lecture to be delivered in cheltenham. in these placards he announced, not the diabolical, the dreadful topics which he descanted upon, not anything which would lead the reader to imagine or expect what really took place--but he gave out his subject as a lecture upon home colonisation, emigration, and the poor laws. mark this, gentlemen of the jury. had he given in his announcements any hint of what was to take place, his end might have been defeated, and no audience attracted to listen to the blasphemous expressions you have heard set out in the indictment. but he did obtain an audience, a numerous audience, and then declared that the people were too poor to have a religion--that he himself had no religion--that he did not believe in such a thing as a god; and--though it pains me to repeat the horrible blasphemy--that he would place the deity upon half-pay. i shall call witnesses to prove all this, and then it will be for you to say if he is guilty. it may be urged to you that these things were said in answer to a question, that the _inuendoes_ must be made out. _inuendoes!_ i should think it an insult to the understandings of twelve jurymen--of twelve intelligent men--to call witnesses to prove inuendoes: but i shall place the case before you, and leave it in your hands. i am sure i need not speak, i need not dilate upon the consequence of insulting that deity we are as much bound, as inclined, to reverence. he then called james bartram--who said: i am a printer at cheltenham, employed upon the _cheltenham chronicle_; attended the lecture of defendant, just after nine o'clock; there were about one hundred persons present of both sexes; the placard announced 'home colonisation, emigration, poor laws superseded;' heard a man put a question to mr. holyoake; he said,' the lecturer has been speaking of our duty to man, but he has said nothing as regards our duty towards god.' prisoner replied, 'i am of no religion at all--i do not believe in such a thing as a god. the people of this country are too poor to have any religion. i would serve the deity as the government does the subaltern--place him on half-pay.' he was the length of the room off; i heard him distinctly; he spoke in a distinct voice. cross-examined by mr. holyoake. you say i said the people were too poor to have any religion; will you state the reasons i gave? witness. i can give the substance, if not the words; 'you said, 'the great expense of religion to the country.' mr. holyoake. i will thank you to state the other reasons? witness. i don't recollect any other reason* mr. holyoake. now, you have sworn the words are blasphemous-- mr. justice erskine. no, he has not. mr. holyoake. will you state if the words are blasphemous? mr. justice erskine said such a question could only be put through him. he then put the question--do you consider the words blasphemous? witness. i do. mr. holyoake. why do you think them blasphemous? witness. because they revile the majesty of heaven, and are calculated to subvert peace, law, and order; and are punishable by human law, because they attack human authority. mr. holyoake. who has instructed you to define blasphemy thus? witness. i have not been instructed, it is my own opinion. mr. holyoake. at cheltenham, during my examination before the magistrates, you did not appear to have these notions. will you swear you have not concocted that answer for this occasion? witness. i did not expect such a question would be put; i did not expect to be catechised. mr. holyoake. who advised you to attend as a witness? witness. the magistrates sent for me. mr. holyoake. did you not know before the day of my commitment something of this matter? witness. there was some 'chaff' in the office about it; that's all i heard of it; a policeman was sent from the magistrates for me to give the names of witnesses who were to appear. don't know why the policeman came to me; don't know his name; no clergyman has spoken to me, that i recollect, upon the subject of this prosecution; not sure of it; several persons have spoken to me, cannot say they were clergymen; i do not know the parties who got up the prosecution, or sent the policeman to me; the report was furnished to the paper i work on by another person; i saw the reporter's notes, but not the editor's observations till the galleys were pulled. mr. justice erskine. what do you mean by galleys pulled? witness. brass slides, my lord. mr. justice erskine. you mean, i suppose, till all the types were up? witness. yes, my lord. cross-examination resumed. do not know of my own knowledge who made the report; have been ten years in employment at _chronicle_ office; know it was said in that paper that three witnesses from that office could prove what had occurred at the lecture; the name of reporter of our paper is edward wills; i heard your lecture, you said nothing against morality. mr. holyoake. will you state your opinion of morality? mr. justice erskine. the question is irrelevant. mr. holyoake. did you think i spoke my honest convictions? witness. i thought you spoke what you meant; you spoke straightforwardly. the judge here interposed, to stop mr. holyoake from asking as to witness's opinions. cross-examination resumed--witness. i should not have lost my situation if i had not come forward in this case; in my opinion you spoke wickedly, as stated in indictment; i did not notice that you spoke contemptuously when using the word _thing_, but you used the word; there were other words between those used in indictment; they did not, is in that document, follow one another; i do not remember the words; you spoke of the enormous sums of money spent upon religion, and the poverty of the people, and afterwards, and in connection with that, said you would place deity as government did the subalterns--on half-pay; i have been a preacher. re-examined by mr. alexander. i have been uninterruptedly ten years in the same employment; do not give evidence from fear or reward; but from a sense of duty. mr. alexander. that is the case for the prosecution, my lord. mr. justice erskine. now is the time for your defence. mr. holyoake. i am not a little surprised to hear that the case for the prosecution is closed. i have heard nothing, not one word, to prove the charge in the indictment. there has been adduced no evidence to show that i have uttered words _maliciously_ and _wickedly_ blasphemous. i submit to your lordship that there is not sufficient evidence before the court. mr. justice erskine. that is for the jury to decide. mr. holyoake. i thought, my lord, as the evidence is so manifestly insufficient to prove _malice_, you would have felt bound to direct my acquittal. mr. justice erskine. it is for the jury to say whether they are satisfied. mr. holyoake. then, gentlemen of the jury, it now becomes my duty to address you on the nature of the charge preferred against me, and of the evidence by which it is attempted to be supported. when i stood in this court a week ago, and saw the grand jury with mr. grantley berkeley at their head as foreman--when i heard his lordship, surrounded by learned counsel, deliver his charge in the midst of persons distinguished for learning, for eloquence, for experience, and for literary attainments-- i then thought, as i now do, that this court could find nobler means than the employment of brute force to counteract anything i could attempt--which i never have done--to bring the truly sacred into contempt. i thought i never should be called upon to stand in this dock, with all its polluting and disgusting associations, to answer for mere matters of speculative opinion. i did think that such persons possessed a sense of the powers of the human mind that would have prevented the interposition of penal judges upon such subjects. but to mr. grantley berkeley, as foreman of the grand jury who found a true bill against me, i beg to draw your attention. mr. grantley berkeley, as you are aware, is brother to the member, mr. c. berkeley, who attempted to vindicate the conduct of the cheltenham magistrates from the allegations against them by sir james graham in the house of commons. in the recent case of mr. mason, who was taken from a meeting, as i was at cheltenham, by a policeman, illegally, without a warrant, the doctrine was laid down by a cabinet minister, in the house of commons, that if the person so arrested was subsequently found guilty by a jury, the illegal apprehension was justified. see how this applies to my case. i was taken from a public meeting a week after the objectionable words were spoken; was taken by a policeman at near midnight; without a warrant. this was justly deemed illegal. i sat in the gallery of the house of commons when the hon. member for bath brought forward my case, and when sir james graham, in reference to the correspondence which had taken place with the magistrates, had the frankness to say, 'there had been serious irregularities and unnecessary harshness used in the case of holyoake.' in this country four thousand applications are annually made to the secretary of state for the home department, and out of that four thousand my case is spoken of as one in which serious irregularities had occurred, and unnecessary harshness been employed. and that amid the numerous affairs of this great empire it should have received this distinct notice is presumptive evidence that it contained much that should be corrected. on thursday, july , the hon. mr. c. berkeley, addressing the speaker of the house of commons, said, 'i wish to ask the right hon. baronet the secretary for the home department a question, but in order to make it intelligible to the house, it will be necessary for me to refer to what took place on tuesday last. it appears that upon that day the hon. member for bath stated, "that as a person named holyoake had been committed to prison, at cheltenham, in an improper manner, he wished to know whether the right hon. the secretary for the home department had any objection to produce the correspondence which had taken place upon that subject"--to which the right hon. baronet replied that, "he felt called on in the discharge of his duty to inquire into the circumstances of the commitment in question--he found that serious irregularities had been committed, and he expressed his opinion to that effect--but as legal proceedings were likely to result out of what had occurred, he did not think it would be judicious in the hon. and learned gentleman to press for the production of the correspondence."... ...the right hon. baronet knows, or at least ought to know, that no such imputation could with propriety be cast upon the magistrates, for by the rd section of the nd and rd of victoria, commonly called the county constabulary act, no magistrate or magistrates, in petty sessions assembled, can interfere with or control the chief constable, or any sub-constable, in the discharge of their duties, as the rules and regulations for these all emanate from the office of the right hon. baronet. it therefore was exceedingly unfair that these imputations should go forth, and i have therefore now to ask, on behalf of the magistrates, whether the right hon. baronet objects to the correspondence being printed and circulated with the votes of the house, and in case he should object i shall offer it for the perusal of the hon. member for bath.' sir james graham, in reply, said, 'i had no intention whatever to cast any imputation on the gentlemen, who that day formed the petty sessions. my observation more properly applied to the capture of holyoake, and the unnecessary harshness used in his conveyance from the magistrates' office. at the same time i shall object to the printing of the correspondence with the votes, as no good result would come from it. of course the hon. member is at liberty to offer it to the hon. member for bath if he chooses--but i repeat, that as legal proceedings were pending, i think such course not advisable.' this is a most flagrant attempt at justification. the act the hon. member quoted related to petty session magistrates, before whom he knew my case had never come, and of whom, therefore, no complaint could have been made. but mr. berkeley had a friendly purpose to serve. the magistrates and their friends have the strongest motives for finding a true bill against me--and they have motives equally powerful for desiring that your verdict should be 'guilty,' inasmuch as that verdict will justify all these 'irregularities'--all the 'unnecessary harshness'--will remove from their shoulders all the responsibility which they incurred by the course they have pursued towards me. bear in mind, gentlemen of the jury, if the rights are to be enjoyed about which we so much glorify ourselves, cases of this kind must not be allowed to pass unnoticed. 'serious irregularities' demand serious notice. arbitrary infraction of the liberty of the subject must not receive the sanction of a jury. recollect that the same course may be pursued towards any one of you, and that if it receives your sanction it will be made a precedent of law--and pernicious may be its influence. but i would draw your attention to a printed report of remarks, made by his lordship, in his charge to the grand jury upon my case, i do not for a moment believe that his lordship had other than fair intentions, but, unfortunately, his remarks will have a contrary effect on those who have to judge my case. i have in my hand the _cheltenham chronicle_, of wednesday last, august th, from which i will read. 'these offences,' he said, referring to the cases of blasphemy, 'lay at the root of all the crime which prevailed, and a consideration of the causes out of which they sprung pointed to the only efficient remedy for their removal. in the case of holyoake, his lordship observed that a work called the _oracle of reason_ had been printed and circulated containing language which he did not think it right to repeat; language in which the writer traced all the evil which existed in the world, not to the real cause--the evil passions of the human heart--but to the existence of christianity itself. this was followed by the most opprobrious language'-- mr. justice erskine (interrupting). i never said anything of that kind--that printed report is entirely incorrect. mr. holyoake. i will read some notes of your lordship's charge, taken at the time of its delivery by a reporter. but whether the report in the _chronicle_ is correct or incorrect, it has had its influence in leading the public, and probably this jury, to a prejudgment of my case. 'there are other charges which seem at once to lead the mind to the consideration of the root of all the evil which forms the subject of our present consideration. i allude to two charges of blasphemy. in one the accused is said to have sold and published a paper called the _oracle of reason_ containing language which i shall not think it right to read, in which the writer traces the evils at present existing, not to the evil passions of man, but to the existence of christianity, and follows it up with the most opprobrious language to the saviour and his system, charging him with being the occasion of all the crime and misery which prevail. the second charge is against a man who gave a lecture, in the course of which he discussed the proper way of teaching man his duty to his neighbour. a person _suggested_ that he had said nothing about teaching man his duty to his god. that led to a statement which shows the folly of the person; and he followed it up by making use of such language that, if you believe it was intended to have destroyed the reverence for god, he has subjected himself to punishment. there is another thing--he does not appear to have intended to discuss this; but if you are convinced that, by what he has said, he intended to bring religion into contempt, he is guilty of blasphemy. if such addresses had been directed to the educated classes, it might have been thought they would remedy themselves; but when they are delivered among persons not educated, the greatest danger might be expected. it is not by the punishment of those who attempt to mislead the ignorant that we can hope to cure the evil. if we feel that it is from the ignorance of those persons to whom the addresses are delivered that the danger is to be apprehended, it becomes our imperative duty to teach those persons. some persons have said, "instruct the poor in reading and writing, but leave them to learn religion at home." but what would you say to a man who would manure his land, and leave it to find seed for itself? it would produce nothing but weeds. i know there is great difficulty in arranging any national schools; but, as we are all individually sufferers, i hope we shall join in extending a national religious education, so that all may learn to do right, not from a fear of punishment, but from a far nobler motive--the knowledge that offences against the laws are contrary to the precepts of the word of god, and hostile to the best interests of society.' i fear his lordship may not give me credit for sincerity; but i do assure you, gentlemen of the jury, no one heard _some_ of those sentiments with more pleasure than i did. i did not expect so much liberality. if such advice had been followed, i should not now be standing here to defend points of a speculative nature. such errors should be corrected by argument, in the arena of public opinion. where i uttered these words, they should have been refuted. the witness against me says he is a preacher; had he no word in answer? could he say no word for his god? no; he, and those who employ and abet him, shrink from the attempt, and seek to punish in this dock opinions they cannot refute. is this a course becoming those who say they have _truth_ on their side? his lordship said 'emissaries are going about.' i am no emissary, and the term as applied to me is unjust. i might, even by the admission of mr. bubb, 'undermine' men's religion, go about secretly disseminating my opinions, without danger of standing here. but i spoke openly; and you who usually have to punish _dishonesty_, are now called upon to punish its non-committal, for a little lying would have saved me from this charge. i have infringed no law, injured no man's reputation, taken no man's property, attacked no man's person, broken no promise, violated no oath, encouraged no evil, taught no immorality--set only an example of free speaking. i was asked a question, and answered it openly. i am not even charged with declaring dogmatically, 'there is no god.' i only expressed an opinion. i should hold myself degraded could i descend to inquire, before uttering my convictions, if they met the approval of every anonymous man in the audience. i never forget that other men's opinions may be correct--that others may be right as well as myself, i have put forth my own opinions openly, from a conviction of their truth; and the sentiments i cannot defend i should scorn like my prosecutors to invoke an attorney-general to protect. i seek a public place, where any man may refute me if he can, and convict me as wilful or ignorant. i should think myself degraded if i published secretly. what can we think of the morality of a law which requires secret inquiry, which prohibits the _free_ publication of opinion? mr. justice erskine. you must have heard me state the law, that if it be done seriously and decently all men are at liberty to state opinions. mr. holyoake. whatever the law says, if an informer can carry the words to persons interested in their suppression--if policemen can be sent to apprehend, without warrants, the man who publicly expresses his opinions--if he can be handcuffed like a felon, and thrust into a gaol--if indictments can be brought against him, and he be put to ruinous expenses and harassing anxieties, however honest the expression of opinion may be--then, i say, this 'liberty-law' is a mockery. but by the word 'decent' is meant 'what those in authority think proper.' there should be no censorship of opinions; but i am told that because i spoke to ignorant people, i am criminal. to educated persons, then, i might have said what i did with impunity-- mr. justice erskine. i only, after speaking of education, said that an honest man, speaking his opinions decently, was entitled to do so. mr. holyoake. there is no evidence to show that my audience were unable to distinguish decency and propriety. but it must be already clear enough to you, gentlemen of the jury, who have been employed during the past week determining violations of the law, that i am placed here for having been more honest than the law happens to allow. i am unaccustomed to address a jury, and i hope to avoid the charge of presumption or dogmatism. i have no wish to offend the prejudices of any man in this court, and have no interest in so doing, when his lordship is armed with the power of the law to punish it. but, while i profess respect for your opinions, i must entertain some for my own. there are those here who think religion proper, and that it alone can lead to general happiness--i do not, and i have had the same means of judging. you say your feelings are insulted--your opinions outraged; but what of mine? mine, however honest, are rendered liable to punishment. i ask not equality of privileges in this respect; i seek not the power of punishing those who differ from me--nay, i should disdain its use. christianity claims what she does not allow, although she says 'all men are brothers.' it is from no disrespect to the bar that i did not give my case into the hands of counsel, but because they are unable to enter into my motives. there is a magic circle out of which they will not step; they will argue only what is orthodox; and you would have had no opportunity from them of learning my true motives, or seeing the real bearings of this case.* * from what subsequently appeared in the _cheltenham free press_, i learned that some of the bar took offence at these remarks; and one revenged himself by describing me, in the _morning chronicle_, as 'a wretched-looking creature, scarcely emerging from boyhood, whose wiry and dishevelled hair, "lip unconscious of the razor's edge," and dingy looks, gave him the appearance of the author of the paragraph which led to this day's proceedings applied to me the epithets of 'wretch,' 'miscreant,' 'monster'--represented me as one who discoursed 'devilism.' the _gloucester chronicle_ laboured to prove that i was a _malicious_ blasphemer, a low german student, is evidently, from his pronunciation and language, a most ignorant and illiterate character, and no doubt courted the present prosecution tor the sake of notoriety.' the cheltenham examiner--the editor of which, i understand, is mr. jelinger symons--draws a parallel between me and the reputed regicide, who has recently shot at the queen. these are the words:--'akin to the offence for which holyoake has been committed is the crime for which francis, also a mere stripling, is likely to forfeit his personal liberty, if not his life. the crimes of blasphemy and treason have many points of great similarity, and frequently result from the same causes; and it would not be an uninstructive task to trace out the progress of those causes which lead the minds of the unguarded to the extreme points when they become dangerous to society. holyoake, the bold assertor of the non-existence of a god, did not become an infidel at once; and francis, the would-be regicide, did not level his pistol at oar beloved sovereign without his mind having been acted and prepared by previous circumstances.... in both cases a morbid imagination, an affectation of superiority, a contempt for and a dissatisfaction with existing institutions, and a craving after notoriety, are the primary incentives to action,' this ungenerous and offensive parallel was drawn out through a long leading article. the effect, if not the object, of all this is to prejudge my case, to awaken all the bitter prejudices which lurk around religion, and to secure my condemnation before my trial. another paper,* in which justice was done me in some respects, called me a 'bigot.' i am not a bigot. i do not assume that i alone am right; nor did i speak of deity, declaring dogmatically his non-existence. i spoke only of my own disbelief in such an existence. of all _isms_ i think dogmatism the worst. i do not judge other men by the agreement of their opinions with my own. i believe you consider christianity a benefit. i regret that i feel it is not so, and i claim the privilege of saving what is true to me. i have ever been ready to acquire correct notions. i have publicly called upon parties whose duty it was to teach me--and who were well paid for teaching--to assist me in sifting out the truth. but they have chosen the strong arm of the law rather than strong argument. jean jacques rousseau says in his 'confessions,' 'enthusiasm for sublime virtue is of little use in society. in aiming too high we are subject to fall; the continuity of little duties, well fulfilled, demands no less strength than heroic actions, and we find our account in it much better, both in respect to reputation and happiness. the constant esteem of mankind is infinitely better than sometimes their admiration.' as the world goes there is much good sense in this, and i have read it to show how fully i accord with these sentiments. i am not aiming at sublime virtue, but rather at the continuity of little duties well fulfilled. it is enough for me if i can be true and useful. * the national association gazette. i was greatly surprised to find the learned gentleman engaged as prosecuting counsel had so-little to say in reference to the case entrusted to his charge, but i presume it must be attributed to the fact that little could be said upon the subject. all his ingenuity, all his legal skill could not discover an argument at all tenable against me. i certainly expected to hear him attempt to prove to you that these prosecutions were either useful or necessary, but he could only tell you that my sentiments were very horrible, without adducing proof that his assertions were true. he dealt liberally in inuendoes, particularly in reference to the placards exhibited previous to the lecture, and the motive for issuing them. but you have been able to glean from his own witness the truth of the matter. i had completed my discourse, which was of a secular character, and was preparing to return home, when one maitland questioned me on the subject of my opinions. i did not get up a meeting under one pretence to use it for another. i employed no scheme to allure an audience to listen to what i did not openly avow, although it has been unfairly insinuated that i did so. when i was first apprehended my papers were taken from me. they would not even leave me the papers necessary for my defence, and i do not know what use was made of them, or that this day the information thus unfairly obtained may not be employed against me. i will read the memorial on this subject, which i forwarded to the secretary of state. '_memorial of the undersigned george jacob holyoake, prisoner in gloucester county gaol, on the charge of blasphemy, to sir james graham, her majesty's secretary of state,_ 'shewith,--that your memorialist was committed to this gaol from cheltenham, on the vague charge of blasphemy, on june rd. 'that in consequence of representations made to him by the police authorities in cheltenham, your memorialist brought with him to the gaol some private papers, hastily selected, for his defence--and that, on arriving here, the said papers were seized, and the visiting magistrate refused to allow your memorialist the use of them, or to give them up to his friends to be used for his advantage. 'that, as these papers were brought in confidence that your memorialist would have been allowed to consult his own thoughts in his own defence--and as they are no man's property but his own--and, also, as without them your memorialist will not have a fair chance of defence,--he trusts you will order them to be restored to him without delay. 'the offence with which your memorialist stands charged occurred as he was journeying homeward, in a town where he was a comparative stranger. consequently, and owing to great bigotry on religious subjects, your memorialist has been unable to obtain bail, and has suffered fourteen days' imprisonment, which time he has spent in fruitless applications to the authorities here for proper books and papers to prepare his defence. out of a list of thirty-one books submitted for that purpose only thirteen are allowed. 'that, as the trial of your memorialist is to take place at the next sessions of this county, to be holden on the th inst., and he is without the means of defence or hope of justice, and has a wife and two children dependent on him for support, he is placed in circumstances of peculiar anxiety. 'hence your memorialist earnestly hopes that you will direct that his papers, seized as before mentioned, be immediately restored to him, and also that he be allowed free access to such works and papers as he may deem necessary for his defence, and that without further delay. '(signed) george jacob holyoake. 'county gaol, gloucester, june , .' the papers were _afterwards_ returned; but, had it not been for friends in the house of commons, and in various parts of the country, i should have been deprived of the materials for my defence. public opinion did for me that which christian charity refused.* * at the gloucester trinity sessions, mr. r. b. cooper stated, in contradiction of the prayer of this memorial, that 'as soon as i mentioned that my papers were necessary for my defence they were returned to me.' mr. s. jones said he 'took my papers home, and _every one_ i wanted for my trial on the morrow i had given to me.' both these statements were untrue, and i stated so at the time in the _cheltenham free press_, and my assertion was never impugned. strong prejudices exist against me as being a socialist. your local newspapers have denounced me on this ground. to show that i deserve no condemnation on this account i shall draw your attention to the nature of socialism. i have here a little book, stated to be published by the 'society for promoting christian knowledge.' if it had been stated to be a 'society' for disseminating 'malicious knowledge' the title-page would have been correct--for a more gross series of misrepresentations were never strung together. if what it says of socialism were true, then i might be abused; but socialism as i have learned or explained it, would never lead to the injury of peace or the disturbance of public order. the first paragraph of godwin's 'political justice' is an epitome of socialism as developed in this country hitherto s it is 'an investigation concerning that form of political society, that system of intercourse and reciprocal action extending beyond the bounds of a single family, which shall be found most conducive to the _general_ benefit--how may the peculiar and independent operation of each individual in the social state most effectually be preserved--how may the security each man ought to possess as to his life, and the employments of his faculties according to the dictates of his own understanding, be most certainly defended from invasion--how may the individuals of the human species be made to contribute most substantially to general improvement and happiness.' but i shall not content myself with one authority; and to avoid the charge of presumption, i have gathered much of my defence from other men's writings, and shall make them speak for me. socialists have been declared to have dangerous metaphysical notions. the whole question has been expressed by the poet-philosopher goethe in four lines, translated by ebenezer elliott, thus-- how like a stithy is this land! and we lie on it, like good metal long hammer'd by a senseless hand; but will such thumping make a kettle? meaning that senseless hammering and senseless legislation could neither make the dull iron into a kettle, nor a vicious people into an enlightened nation. socialism says, all men have in them the true metal--the elements of goodness, which all governments are responsible for moulding. socialism proposes to substitute other means than punishments for the prevention of crime, and that you may not think these chimeras of my own, i will read you the opinion of a lord cardinal to a certain high chancellor of england, sir thomas more, who, in his 'utopia.' says, 'when i was in england, the king depended much on his councils.... one day when i was dining with him there happened to be at table one of the english lawyers, who took occasion to run out in high commendation of the severe execution of justice upon thieves, "who," as he said, "were then hanged so fast that there were sometimes twenty on one gibbet!" and upon that he said, "he could not wonder enough how it came to pass, that since so few escaped there were so many thieves left, who were still robbing in all places." upon this, i (who took the boldness to speak freely before the cardinal) said, "there was no reason to wonder at the matter, since this way of punishing thieves was _neither just in itself nor good for the public_; for as the severity was too great, so the remedy was not effectual; simple theft not being so great a crime, that it ought to cost a man his life: no punishment, how severe soever, being able to restrain those from robbing who can find no other way of livelihood. in this (said i) not only you in england but a great part of the world, imitate some ill masters, that are readier to chastise their scholars than teach them. there are dreadful punishments enacted against thieves, _but it were much better to make such good provisions by which every man might be put in a method how to live and so be preserved from the fatal necessity of stealing, and of dying for it._"' socialism would try to obtain a remedy for the evils which judges go round year by year lamenting; socialism would suggest a means of affording employment, and thus mitigate the crime which judges and juries are called to punish. such objects may be declared chimerical, but surely it is not criminal to hope that they can be carried out, and to feel that they ought. i could read many other passages to show that under no circumstance socialism merits that character which has been ascribed to it but i do not deem it necessary, as i think i have said enough to prove that. nor do i want to instil my sentiments, but merely to disabuse your minds of a prejudice which has been disseminated to my disadvantage. my assuming the right of free expression inculcated by mr. owen, and when asked a question, refusing to equivocate, are opposed, it would appear, to the laws of this country. but this i have learned from socialism, that there can be no public or private virtue, unless the foundation of action is the practice of truth. passing through cheltenham to pay a visit to a friend, i delivered a lecture. after which the words were uttered which are here indicted. when i had read the _cheltenham chronicle_, in the city of bristol, i returned to cheltenham. if i had been conscious of guilt, should i have returned? on the night of my apprehension marks of kindness were shown me by the people. if i had acted disgracefully, would the people of cheltenham have met a stranger and showed him marks of esteem and friendship? i went to the station-house and remained there all night. when taken before the magistrates, mr. capper told me i was not fit to be reasoned with, because i did not believe in a god, and that it was from a love of notoriety that i acted: but from the love of mere notoriety i have never uttered any sentiments, for i hold such conduct in contempt. after i was taken from the magistrates' office, i was treated with contumely at the police-station. surgeon pinching, finding me completely in his power, said he was sorry the days were gone by when i could hold up my head, and wished the inquisition could be put in force against such persons as myself. i was thrust into a filthy cell, and my hands were bolted together and the skin pinched off. i was brought to gloucester on a sultry day, and should have been made to walk had not some friends interfered and obtained permission for me to ride, on paying my own fare and that of two policemen. there was no indication from my manner that i wished to make my escape, and the company of two policemen was sufficient to prevent it. it was thought if i was chained like a felon and dragged through two towns, it would wound my feelings. if these are the ways in which the truths of christianity are to be taught, i leave you to judge of them. two of your magistrates conversed with me, and shouted with much rudeness that i was a fool for holding my opinions. i never could have said this to any man, and yet such treatment i received from magistrates old enough to be my grandfathers. here mr. bransby cooper, who sat upon the left of the judge, was so moved by this remark, that he rose and ejaculated something in court; but the judge peremptorily commanded him to sit down. mr. holyoake then read the memorial of the public meeting of the inhabitants of cheltenham, before quoted, referring to the conduct, at the examination, of joseph overbury, robert capper, and the rev. t. b. newell, d.d., magistrates. mr. justice erskine. you ought not to read any statement not authenticated by evidence, which reflects on any person. defendant. this is a petition of a public meeting. mr. justice erskine. it is not evidence. defendant continued. i have never been anxious under any circumstances to obtrude my opinions on the public. i confined myself strictly to the subject on which i lectured, and should not have introduced my sentiments on religion, should not have spoken another word after my lecture, if i had not been publicly questioned. i have held various situations, and in all secular ones i have strictly kept religious opinions out of view. it is known that i have taught that and that only which i have been employed to teach. in proof of this i may cite testimonials given me upon the occasion of my applying for the situation of collector at the birmingham botanic gardens. they are from magistrates and gentlemen of birmingham, and the post was one requiring a person of trust, as considerable funds would have to pass through his hands in a year. mr. holyoake here quoted from numerous testimonials. one of them, from a magistrate, f. lloyd, esq., stated that mr. holyoake obtained the first prize at the mechanics' institute, some years ago, for proficiency in mathematics, a proficiency attained, too, under most discouraging circumstances.' another of the testimonials was from the rev. s. bache, one of the ministers of the new meeting house congregation. having read these documents, mr. holyoake resumed. during one of those commercial panics, which a few years ago passed over this country like a pestilence, my parents were suddenly reduced from a state of comparative affluence to one of privation. at one of these seasons my little sister became ill. while she was so the rev. mr. moseley, m.a., rector of st, martin's, birmingham, sent an order to us for his easter due of fourpence. on previous occasions this demand had been cheerfully and promptly paid; but now, small as the sum was, it was sufficient materially to diminish the few comforts our house of illness unfortunately afforded; and it was therefore discussed whether the demand of the clergyman should be paid, or whether it should be expended in the purchase of some little comforts for my sick sister. humanity decided; and we all agreed that it should be devoted to this latter purpose. it was; but, i think, the very next week, a summons came for the easter due, and two shillings and sixpence were added, because of the non-payment of "the _fourpence_". the payment of this could now no longer be evaded, for in a few days a warrant of _distraint_ would have rudely torn the bed from under her, as had been the case with a near neighbour. dreading this, and trembling at the apprehension, we gathered together all the money we had, and which was being saved to purchase a little wine to moisten the parched lips of my dying sister, for at this time her end seemed approaching. my mother, with a heavy heart, left home to go to the public office. the aisles there were cold and cheerless like the outside this court, and there, all broken in health and spirits, worn out with watching, and distracted by that anxiety for her child a parent, under such circumstances, only could feel, she was kept from five to six hours waiting to pay the two shillings and ten-pence. when she returned all was over--my sister was dead. gentlemen, will you wonder if, after this, i doubted a little the utility of church establishments?* and if, after the circumstances i have related, i did not think so highly of church 'as by law established' as before, can you be surprised? can you punish me for it? [at this point many ladies wept, and the court manifested considerable attention.] * i have since learned that mr. w. j. fox read this passage in a sunday morning lecture on the events of the month, delivered at south-place in the september following my trial; and i take this opportunity of acknowledging that mr. fox was the only occupant of a pulpit from whom i received a friendly line during my entire imprisonment. i have been told to look around the world for evidences of the truth of the christian religion; to look upon the world and draw different conclusions. it is well for those who enjoy the smiles of fortune to say so. for them all shines brightly--for them all is fair. but i can see cause of complaint, and i am not alone in the feeling. mr. capel lofft had said, 'the sours of life less offend my taste than its sweets delight it.' on this kirke white wrote:-- go to the raging sea, and say 'be still!' bid the wild lawless winds obey thy will; preach to the storm, and reason with despair-- but tell not misery's son _that life is fair_. thou, who in plenty's lavish lap hast roll'd, and every year with new delight hast told--thou, who, recumbent on the lacquer'd barge, hast dropt down joy's gay stream of pleasant marge, thou may'st extol life's calm, untroubled sea--the storms of misery ne'er burst on thee. go to the mat where squalid want reclines; go to the shade obscure where merit pines; abide with him whom penury's charms control, and bind the rising yearnings of his soul--survey his sleepless couch, and, standing there, tell the poor pallid wretch _that life is fair_! lo! o'er his manly form, decay'd and wan, the shades of death with gradual steps steal on; and the pale mother, pining to decay, weeps, for her boy, her wretched life away. go, child of fortune! to his early grave, where o'er his head obscure the rank weeda wave; behold the heart-wrung parent lay her head on the cold turf, and ask to share his bed. go, child of fortune, take thy lesson there, and tell us then that life is _wondrous fair_. as i grew up i attended missionary meetings, and my few pence were given to that cause. when told of heathen kings who knew not god, and caged their miserable victims, i shuddered at their barbarity and prayed for their conversion. o waste of money and prayers that should have been employed on christian men. o infantile fatuity! do i not reap the whirlwind for my pains? i learned the accents of piety from my mother's lips. she was and still is a religious woman. whatever may be the dissent i entertain, i have never spoken of her opinions in the language of contempt. i have always left her (as she to her honour has left me), to enjoy her own opinions. in early youth i was religious. i question whether there is any here who have spent more time than i did as a sunday school teacher. i have given hours, which i ought to have employed in improving myself, in improving others. it is not without giving to christianity time and attention--without knowing what it was--that i have given it up. some lines i contributed to a religious publication at that time, will show the tone of thought which inquiry has subsequently changed:-- the reign of time. the proudest earthly buildings show, time can all things devour; e'en youth and beauty's ardent glow, and manhood's intellectual brow, betray the spoiler's power: how soon we sink beneath his sway-- he glances, and our heads turn gray. though, over all this earthly ball, time's standard is unfurled, and ruins loud to ruins call throughout this time-worn world-- yet from this wreck of earthly things, see how the soul exulting springs. and after the archangel's wand has wav'd o'er earth and sea, and time has stopped at his command, the soul will nourish and expand through all eternity. religion--lovely, fair, and free-- holds forth this immortality. by all the glories of the sky, to mortals yet unknown-- and by the worm that ne'er shall die, the fires that always burn-- by all that's awful or sublime, ye sons of men improve your time.* * 'baptist tract magazine.' vol. ii., p. . it was stated by one of the magistrates that my being of no religion was no crime. i may conclude from what i heard this morning that i am not to be punished for not being religious. it was argued in, the _cheltenham chronicle_ that my expressing my opinions was no crime, and i was at some loss to know what my crime was. the charge stated i was guilty of _blasphemy_. in the depositions made against me, it is stated that i was brought before the cheltenham magistrates on a charge of felony. i believe now what i have to answer is the accusation of uttering certain words offensive to the _cheltenham chronicle_. this paper stated that 'three persons were ready to give evidence on the matter.' and yet the witness says he knew nothing of it till the policeman came for him. he says they were 'chaffing' about my remarks in the office--that is, joking upon them. it does not say much for his seriousness--reporting these 'horrid sentiments' at night, and the next morning '_chaffing_' about them. if it was an aggravation of my crime to have chosen an innocent subject, what would the learned counsel have said if i had chosen a guilty one? it has been sworn by the witnesses that i said i did not believe there was such a _thing_ as a god, and an attempt has been made to make you believe that i used the term 'thing' contemptuously, but the witness admits that i did not use it in a contemptuous sense. the same word occurs in some lines by thomas moore:-- man, in the sunshine of the world's new spring, shall walk transparent like some holy thing. i must have used the word 'thing' in some such sense as it is used in these lines. it is laid down by the common law, that a person denying the existence of a god is a blasphemer. it has not been shown that i did this. i merely stated my disbelief--and disbelief is not included by the law. there is a great difference between denial and disbelief. if i had said distinctly 'there is no god,' it would have been stating that i was quite sure of it. i could not have said that, because i am not sure of it. i saw reasons for disbelief, but did not assert denial. disbelief is all i profess. those dogmatise who affirm, rather than those who deny a proposition. mr. southwell put this point in its proper light:-- 'if god had never been affirmed, he could not have been denied. it is a rule of logic, and a very sensible rule, that the _onus probandi,_ that is the burthen or weight of proving, rests on those who affirm a proposition. priests have affirmed the existence of a god, but who will maintain that they have complied with the rule of logic?'* we can only, i think, arrive at a conviction of the existence of a god by the following modes:-- . by the medium of _innate ideas_, which we are said by some divines to possess, and which intuitively lead us to entertain the idea of a god. . by the _senses_, the sole media by which all _knowledge_ is acquired. . by _conjecture_.--this is employed by those who suppose there must be a god from their inability otherwise to account for the existence of the universe, and are not willing to allow it to be inexplicable. . by _analogy_.--comparison is the basis of this argument. analogy is the foundation of natural theology. . by _revelation_.--in this country the bible is said to contain the revelation of a god. of these it may be remarked:-- . _innate ideas_.--with regard to these, very conclusive reasons have been advanced by eminent philosophers for disbelieving that we have any. and human experience confirms this conclusion. some nations, as the people of the arru islands, have no idea of a god. so this source of knowledge concerning one is, to say the least, dubious. . _senses_.--'no man hath seen god at any time,' is a sufficient reply to this--for the same may be affirmed of every other sense, which is here affirmed of sight. . _conjecture_.--this defies us. we only prove our own inability and multiply difficulties. for when we suppose a god, we cannot suppose how he came, nor how he created something out of nothing, which is held by the learned to be plainly _impossible_.** * oracle of reason, no. , p. . ** since this time mr. francis william newman has put this argument unanswerably in these words; 'a god uncaused and existing from eternity, is to the full as incomprehensible as a world uncaused and existing from eternity'--'the soul,' p. . second edition. . _analogy_ will not inform us. a small pivot or wheel cannot _infallibly_ indicate to us the mechanism to which it belongs, nor anything conclusive as to whether the whole had only one or more makers. so of the universe, no part can shadow forth the whole of that, nor inform us conclusively whether it had a creator or creators. and here it is to be observed the difficulty is greater than with machines--for a pivot or wheel is a finite part of a finite whole, and _both comprehensible_; but with the universe, all we can take cognisance of is but a very finite part of an _infinite_ whole, and that whole to all men acknowledged _incomprehensible_. moreover, _creation_ can have no analogy--no one ever saw or can conceive of anything being created. so that this mode of learning the existence of a god fails. the rev. hugh m'neile, m.a., minister of st. jade's church, liverpool, in a lecture delivered to above four hundred of the irish clergy, at the rotunda in dublin, said in reference to this part of the question, 'i am convinced, i say, that, from external creation, no right conclusion can be drawn concerning the _moral_ character of god. creation is too deeply and disastrously blotted in consequence of man's sin, to admit of any satisfactory result from an _adequate_ contemplation of nature. the authors of a multitude of books on this subject, have given an inadequate and partial induction of particulars. already aware (though perhaps scarcely recognising how or whence) that "god is love," they have looked on nature for proofs of this conclusion, and taken what suited their purpose. but they have not taken nature _as a whole_, and collected a conclusion fairly from impartial premises. they expatiate on the blessings and enjoyments of life, in the countless tribes of earth, air, and sea. but if life be a blessing, death is a curse. nature presents the universal triumph of death. is this the doing of a god of love? or are there two gods--a kind one, giving life; and an unkind one taking it away; and the wicked one invariably the victor? in external creation, exclusively and adequately contemplated, there is no escape from manichæism. it is vain to say that the death of the inferior creatures is a blessing to man; for why, in the creation of a god of love, should any such necessity exist? and how would this account for the death of man himself?' so far the argument of analogy. . _revelation_.--we have _none_. if others ever had, we can only determine it by human reason, and for this purpose leslie has furnished his well-known rules. therefore, as revelation means something superadded to reason, we cannot be said to possess it, for reason has to determine what is, and what is not revelation, and therefore is superior to it. also, it is contended by divines that, but for the bible we should know nothing of a god, which shows the unsatisfactory nature of the four methods of learning his existence we have gone through. and lord brougham contends that but for natural theology, or the analogy argument, which has been shown to be no argument at all, the bible would have no other basis than mere tradition. so you see, gentlemen, the philosophical difficulties besetting the path of a young inquirer into sacred things. these difficulties are to me insuperable, and hence i find myself incapable of employing language you are more fortunate in being able to adapt to your conscience.* * the object of this passage was to show the jury the intellectual difficulties belonging to this subject, and the passage formed but an episode among the moral issues i raised. a friend of mine asking an eminent divine at one of dr. elliotson's seances, and who afterwards entered parliament, what he thought of my defence. 'oh it turned upon that eternal conundrum the existence of god,' was the answer. but i hope the reader will see something more in my defence than the frivolity that employs itself on riddles. but it has been stated i said i would put the deity on half-pay. after first stating that i did not believe there was a deity, is it likely i should say i would put him on half-pay? would you put a servant on half-pay whom you never hired or had? all my expressions went to prove that i referred to the expenses of religion. i could not suppose that there is a being capable of governing the world, and consider him good and kind, and yet have any intention of bringing him into contempt. i had no personal reference to the deity. i made use of that figure of speech because i thought they would understand it better, and they did understand it. i was saying we had many heavy burdens to pay to capitalists and others, and that i thought it hung like a millstone round us. sir r. peel said, when he introduced the income-tax, that the poor man could bear no more. i said there were twenty-four millions taken from us for the support of religion, and that they would do well to reduce that one-half. suppose, gentlemen, that i did refer to the deity, was my notion a dishonourable one? what man of you who had enough and to spare, and seeing the people around him in poverty, would not willingly relinquish part of his income to give them a bare subsistence? who will deny that in england there are honest, industrious, hard-working men, honourable women, and beautiful children, who have not the means of obtaining food? did i do him a disgrace if i thought he, who is called our father, the most high, would have dispensed with one-half of the lip-service he receives in order to give his creatures necessaries! [it being nearly four o'clock the jury asked leave to retire, to which mr. holyoake consenting, they left the court for a short time. some ladies who represented themselves as wives of clergymen, came round the dock offering mr. holyoake confections and refreshment, and expressing their regret at the treatment he had received, and the position in which he was placed.] mr. holyoake, on resuming, said--according to a calculation that has never been disputed, the 'pay to their clergy. catholics, numbering... , , ... £ , , protestants � ... , , ... , , greek church � ... , , ... , total of christians , , £ , , 'of which england, for twenty-one millions of people, pays more than one-half.'* thus the english pay five times more according to their numbers--i proposed a reduction of only one-half. * 'cheap salvation.' by henry hetheringten. mr. w. j. fox has told us--'if the government of the country disposed of the mismanaged funds of the clergy, they would have sufficient for their annual needful expenditure.' mr. justice erskine. if you can convince the jury that you only meaning was that the incomes of the clergy ought to be reduced, and that you did not intend to insult god, i should tell the jury you ought not to be convicted. you need not go into a laboured defence of that. mr. holyoake. it was stated by one of the witnesses at cheltenham that i said christians are worshippers of mammon. i thought it necessary for me to refer to it. mr. justice erskine. there is no evidence of that. mr. holyoake. then turn to the question _what is blasphemy?_ in the case of mr. southwell, one of the witnesses for the prosecution stated his opinion that the crime was '_bringing a scandal on the religion of the magistrates_.' perhaps this is as correct a definition as can be given. it has been said to be 'an injury to god,' men who could not string six sentences together grammatically, have told me they would defend god--men whom i should be ashamed to have defending me. but blasphemy is impossible in the sense of annoyance to god. jonathan edwards says--'the following things may be laid down as maxims of plain truth and indisputable evidence:-- ' . that god is a perfectly happy being, in the most absolute and highest sense possible. ' . it will follow from hence, that god is free from everything that is _contrary to happiness_: and so that in strict propriety of speech there is no such thing as any pain, grief or trouble in god. ' . where any intelligent being is really crossed and disappointed, and things are contrary to what he truly desires, he is less pleased, or has the less pleasure, his pleasure and happiness are diminished, and he suffers what is disagreeable to him, or is the subject of something that is of a nature contrary to joy and happiness, even pain and grief. 'from this last maxim it follows, that if no distinction is to be admitted between god's hatred of sin, and his will with respect to the event and existence of sin, as the all-wise determiner of all events, under the view of all consequences through the whole com pass and series of things; i say, then, it certainly follows, that the coming to pass of every individual act of sin is truly, all things considered, contrary to his will, and that his will is really crossed in it, and that in proportion as he hates it. and as god's hatred of sin is infinite, by reason of the infinite contrariety of his holy nature to sin; so his will is infinitely crossed in every act of sin that happens. which is as much as to say:--he endures that which is infinitely disagreeable to him, by means of every act of sin he sees committed--and so he must be infinitely crossed and suffer infinite pain every day, in millions of millions of instances, which would be to make him infinitely the most miserable of all beings.'* but _blasphemy_ is an antiquated accusation. in a work** by col. feyronnet thompson, it is remarked--'what a turmoil, what a splutter, was in this land, when men first announced that they would not eat fish, they would not bow down, they would not confess but when they liked, and this because the secret had got wind that these things were either not in the priests' own rule, or were against it! what threats of hell flames, what splashing about of fire and brimstone, what registration of judgments on men choked with a beef-steak on friday! look at one of those simple men in the present day, who shock themselves with the barouches, the cigars, the newspapers, and the elephants of a london sunday, and occasionally digress to paris, for the keener excitation of seeing punch upon the boulevards, and wondering where heaven reserves its thunder. and put the parallel case; that a good austrian or navarrese catholic came here, and grieved his heart with our weekly doings on a friday, to say nothing of our more wholesale offences for forty days together in lent. "such frying; such barbecuing; in no place did i see anybody having the smallest notion of a red herring! all are involved in one flood of sin and gravy! how fathomless the patience of heaven, that such an island is not swallowed up of the deep!" we have looked into the rule he professes to go by; and we declare it is not there, but the contrary. we know we must appear in the next world with all our mutton on our heads. but we have done our best to look at the rule with the light that god has given us; and in spite of austria or navarre, we will take the risk of his not being angry with us, for seeing no prohibition of mutton there.' thus we see that _mutton-eating_ was at one period blasphemous. * quoted from 'a commentary on the public discussion on the subjects of necessity and responsibility,' &c by jonathan jonathan, late of the united states. ** 'the question of sabbath observance, tried by the church's own rule,' &c. by col. peyronnet thompson, f.r.s, of queen's college, cambridge. mr. sergeant talfourd told the jury, in the case of hetherington v. moxon, that if the government were consistent in carrying out prosecutions for blasphemy--shakspere, milton, byron, shelley, southey--might be prohibited. this perhaps would be an agreeable result to a reverend gentleman well known in this court and county, who says all science should be destroyed; but i trust you entertain no such feelings, and that if i can show that my sentiments cannot be productive of harm, you will feel called upon to acquit me. i claim no inherent right of expressing my opinions, i only contend for liberty of expression because required for the public good. a doctrine was laid down by lord john russell upon the occasion of the presentation of the national petition, which i will quote as a view of the subject of human rights well expressed. 'i am aware,' he said, 'that it is a doctrine frequently urged, and i perceive dwelt upon in this petition, that every male of a certain age has a right, absolute and inalienable, to elect a representative to take his place among the members in the commons' house of parliament. now, sir, i never could understand that indefeasible right. it appears to me that that question, like every other in the practical application of politics, is to be settled by the institutions and the laws of the country of which the person is a native. i see no more right that a person twenty-one years of age has to elect a member of parliament than he has to be a juryman. i conceive that you may just as well say that every adult male has a right to sit upon a jury to decide the most complicated and difficult questions of property, or that every man has a right to exercise the judicial functions, as the people did in some of the republics of antiquity. these things, as it appears to me, are not matters of right; but if it be for the good of the people at large, if it be conducive to the right government of the state, if it tend to the maintenance of the freedom and welfare of the people, that a certain number, defined and limited by a reference to a fixed standard of property, should have the right of electing members of parliament, and if it be disadvantageous to the community at large that the right of suffrage should be universal, then i say that on such a subject the consideration of the public good should prevail, that legislation must act upon it as on every other, and that no inalienable right can be quoted against that which the good of the whole demands.' if lord russell did not, i do see a difference between the claim of an elector and the right of a juryman. the elector is chiefly concerned with his own interests, the juryman with other people's--one is simple, the other complex. but with the measure of right laid down by his lordship in the sentiments i have quoted, i perfectly accord, and if it could be shown that freedom of expression produced public harm, then i would give it up. but i believe such a right would produce good, and therefore i claim it at your hands upon the ground of public good. in what i urge, it is not faith but reason, as far as i understand it, that i take for my guide--a rule of argument i trust you will accept. 'reason contents me,' was inscribed as the motto on the seal of the letter from sir james graham, acknowledging the receipt of the cheltenham memorial. if reason 'contents' the secretary of state, and 'fountain of justice,' surely it ought to 'content' the channels through which such justice is diffused over society. reason would always be preferred by us were we not differently instructed. 'bewildered,' says diderot, 'in an immense forest during the night, and having only one small torch for my guide, a stranger approaches and thus addresses me: "_friend, blow out thy light if thou wouldst make sure of the right path_" the "forest" was the world--the "light" was my reason---the "stranger" was a priest.' after several quotations showing the dubious and often pernicious influence of sacred authority, mr. holyoake observed---religious sanctions are regarded only by the ignorant, whom they confirm in folly. the good find their sanction in the satisfaction ef a virtuous act performed. in an address of the rev. f. close, delivered a short time since at the church of england tradesmen and working men's association of cheltenham, he said, 'that the more a man is advanced in human knowledge, the more is he opposed to religion, and the more deadly enemy he is to the truth of god.' if this christian minister is to be believed, then may you burn your books--forsake all mental refinement--and be equal in piety and ignorance. if christianity is opposed to human improvement, then should all systems of ignorance be patronised by christians. sentiments like these would lead us to give up boyle, locke, and newton, and regard them, with the rev. mr. close, with detestation. mr. justice erskine. let me see the discourse of mr. close from which you are quoting. the book was handed to his lordship. mr. holyoake. if the correctness of that report be doubted, i may state that the sentiments of mr. close were replied to by mr. g. berkeley. permit me now to draw your attention strongly to what has been said by men in authority of the impolicy of these prosecutions--that even if you were justified in inflicting punishment on me, it would not be wise to do so, lord brougham, three or four years ago, said, 'i may underrate the power of truth opposed to error, and i may overrate the good sense of my fellow country men in rejecting it, but one thing i do not overrate--the power of persecution to spread that which persecution only can spread.' when i walk through any of those ancient places, as i did yesterday through your beautiful cathedral, i feel the majesty they ever present, and think of the manner in which our catholic ancestors acted on the minds of men. there were sublimity and pageantry and pomp to create awe. we have none now of that beauty of architecture in our meagre churches and more meagre chapels. they had a service more imposing than we ever had. recollecting all these things, i have wondered how anything could be found sufficiently powerful to shake them off. i have wondered how luther, with his rude vulgarity, could have effected so much. i can only account for it in this way--that when the catholics dragged his followers to gaol, it was found that human feelings were stronger than human creeds. these prosecutions are entirely in opposition to the sentiments promulgated by yourselves, as appears from a book given me in gaol called the 'manual of devotion.' i amused myself by contracting the profession contained in it with the practice of my opponents. it is published by the 'society for promoting christian knowledge.' in the 'discourse concerning prayer,' it is laid down that the 'second qualification for prayer is charity or love. there is nothing so contrary to the nature of god, nothing so wide of the true spirit of a christian, as bitterness and wrath, malice and envy; and therefore it is vain to think that even our prayers can be acceptable to god, till we have put on, as the elect of god, bowels of mercy, kindness, humbleness of mind, meekness, long-suffering, forbearing one another, and forgiving one another, as st. paul commands.' gentlemen, where are these sentiments evinced in this prosecution? the 'third qualification--is faith. if any of you lack wisdom, says st. james, let him ask of god, but let him ask in faith.' my prosecutors have asked mr. bubb, have had faith in policemen, and confidence only in the 'common law.' the 'fourth qualification is--that in all things of a temporal concern, we must exercise an entire submission to the will of god. a good christian will be sure to leave the issue in god's hands.' in my case not the will of god, but the will of bigots was done, and the 'issue' left in the turnkey's hands. the 'fifth qualification--is that the person praying hath a good intention; that he asks for a good end. we must not pray as the revengeful man when he prays for authority, that he may have the more power to effect his evil designs.' what can be more wholly condemnatory of these proceedings than these instructions of the 'manual of devotion?' when the 'life of christ,' by dr. strauss, appeared in berlin, contrary to usages in such matters, the prussian government consulted the clergy to ascertain from them whether it would not be prudent to prohibit this extraordinary production. the celebrated bishop neander was commissioned by the ecclesiastical body of berlin, to peruse the book and to return an answer. neander did so, and declared in reply, that the work submitted to his examination threatened, it was true, the demolition of all creeds; nevertheless, he requested that full liberty should not be denied to his adversary, in order that full and free discussion might be the only judges between truth and error. and when asked whether it should be prosecuted, said, 'no, i will answer it.' mr. justice erskine. that work was temperately written. mr. holyoake. neander did reply to it, and strauss had the manliness to acknowledge that it had corrected many of his errors. would that have been done had he been prosecuted? dr. strauss's work on the scriptures got him a professor's chair in germany. in this country it would have made him amenable to the common law, and to one, two, or three years' imprisonment. gentlemen, in the pertinacity of my open reply to maitland, you may find something objectionable, but i happen to be an admirer of that sentiment expressed by the honest 'vicar of wakefield'--'in all human institutions a smaller evil is allowed to procure a greater good; as in politics, a province may be given away, to secure a kingdom; in medicine, a limb may be lopt off, to preserve the body. but in religion, the law is written and inflexible, _never_ to do evil.' then, gentlemen, i ought to be tolerated in the truthfulness of my answer. milton, in his prose works,* in reference to an incident in his travels, says:-- * milton's prose works, pp. - , vo edit. edited by fletcher. 'while i was on my way back to rome, some merchants informed me that the english jesuits had formed a plot against me, if i returned to rome, because i had spoken too freely of religion; for it was a rule which i laid down to myself in those places, never to be the first to begin any conversation on religion--but, if any questions were put to me concerning my faith, to declare it without any reserve or fear.' this is the rule which i myself have followed in this case. since his lordship--with more liberality than is customary, and with more philosophy than i expected on matters of religion (on which i hear his lordship thinks very devoutly)--has said, that any religion may be discussed in temperate language, it is not necessary for me to prove, as i should have done, that it would be useless liberty for me to entertain opinions without permission to publish them. the only question is whether, in the expression of these opinions, i used a proper kind of language. i think i have proved that i was far from having any of those 'malicious' feelings the indictment presupposes. many figures of speech have been used in this court from which my feelings revolted as much as those of any person could from what i said. no allowance is made for this, and too much importance is attached to what is assumed to be ridicule. a short time ago it was argued, that if the political squibs which are seen in shop windows were permitted to be published, they would bring government into contempt, and you would soon have no government. their publication has been permitted. have we no government now? i feel the utility of a government, and no force of ridicule could shake my belief in the importance of good government. so it is with religion. nothing that is uttered, however contemptuous, can bring it into contempt, if it really is useful and beneficial. we might defy all the wits and caricaturists in the world to bring the problems of euclid into contempt. no man can bring into contempt that which is essential and true. the counsel who opened the case did not state whether the indictment was at statute or common law. mr. justice erskine. common law. mr. holyoake. then, gentleman of the jury, i shall draw your attention to that, and i hope i shall be able to explain the law bearing on my case. mr. justice erskine. the jury must take the law from me. i am responsible for that. mr. holyoake. i know, my lord; but still i may refer to it. a friend of mine consulted the works bearing upon the law of this case.* i have here the results of his labours, and, if i am wrong, your lordship will, in summing up, correct me. * i was indebted to mr. j. homffrey parry, barrister, for the revision of the argument i employed. gentleman of the jury, the common law is a judge-made law. a judge laid down, some years ago, that to say anything against the christian religion was an indictable offence. another judge followed him and said the same; and at last it came not to be doubted. if i show there is no law properly made in parliament assembled, you ought to acquit me. the offence with which i am charged is an offence at common law. there is no statute which punishes a man simply for denying the existence of god. there is a statute ( and wm. iii., c. ) directed against those who denied the trinity and who renounced christianity. but the former part has been repealed in favour of unitarians, by the rd geo. iii., e. ; and the words i am charged with having spoken cannot be brought within the latter. there is a statute against profane cursing and swearing ( geo. ii., c. ), but it takes no cognisance of this offence. human beings have also been put to death for witchcraft ( hen. viii., c. ; and james i., c. ), under the merciless statutes which were enacted in times of the grossest ignorance and superstition; but those statutes have been repealed ( geo. ii., c. ). this offence, therefore, is an offence against the common law, if it is an offence at all. it is to be found in the recorded decisions of the judges, if it is to be found anywhere; and the punishment for it is in their discretion. had it been an offence under a statute, it would have been impossible for me to have denied the authority of the statute; but, as it is an offence at common law, it is quite competent for me to show that the authorities which have been supposed to constitute the offence do not warrant such a construction. should your lordship even declare that you had no doubt upon the subject, it would still be competent for me to bring before you the decisions of former judges, to argue upon those decisions, and to show, if i could, that there was some mistake or error running throughout the whole of them. your lordship, i am sure, will admit that judges are fallible, and that a blind, unreasoning submission to them no man should give. as some excuse for presuming to doubt the decision of some of your lordship's predecessors, i shall quote the following passage from the preface to mr. watkin's treatise on conveyancing, allowed to be a master-piece of legal sagacity and method. 'i believe,' writes that gentleman, 'it will be found, on examination, that an implicit submission to the assertions of our predecessors, whatever station those predecessors may have held, has been one of the most certain sources of error, perhaps there is nothing which has so much shackled the human intellect, nothing which has so greatly promoted whatever is tyrannic, preposterous, and absurd, nothing perhaps which has so much degraded the species in the scale of being as the implicit submission to individual dicta.' and he then goes on in vigorous terms to reprobate the practice of allowing 'authority to shoulder out common sense, or adhering to precedent in defiance of principle.' upon the principle contained in this passage i shall act, in claiming the attention of your lordship, and you, gentlemen of the jury, whilst i examine the authorities for the doctrine which brings the offence with which i am charged within the jurisdiction of the temporal courts. your lordship will, perhaps, refer to these books. mr. justice erskine, no need of that. if it is not an offence at common law, this indictment is worth nothing. you can take it before the fifteen judges on a writ of error. i sit here, not to correct the law, but merely to administer it.* * i have been told by a legal friend of great experience, that at this point i might have taken the judge at his word, and have carried the case before the judges for decision; but i was unacquainted with the forms of law in such cases, and i moreover distrusted the judge. mr. holyoake resumed. in the fourth volume of 'blackstone's commentaries,' p. , in speaking of offences against god and religion, that writer says, 'the fourth species of offences, therefore, more immediately against god and religion, is that of blasphemy against the almighty, by denying his being or providence, or by contumelious reproaches of our saviour, christ. whither also may be referred all profane scoffing at the holy scripture, or exposing it to contempt and ridicule. these are offences punishable at common law by fine and imprisonment, or other infamous corporal punishment; _for christianity is part of the laws of england_.' blackstone quotes, in support of the first species, a volume of 'ventris' reports,' p. ; and the second from the second volume of 'strange's reports,' p. . mr. christian, the commentator upon blackstone, adds, in a note, a passage from the 'year book' ( henry vi.), folio . the earliest case is that from the year book, in the th year of henry vi. ( ). mr. christian quotes from it this passage--'scripture est common ley, sur quel toutes manieres de leis sont fondes' (i.e., scripture is common law, upon which all descriptions of laws are founded). were this quotation correct, and did the word scripture here mean 'holy scripture,' or what is generally understood by the bible, then i admit this passage would be a good foundation to build up mr. judge blackstone's law. but it is no such thing. the case in the year book is a case of _quare impedit_, and, in the course of the argument the question arose whether, in a matter of induction to a benefice by the ordinary (i.e., the bishop) the common law would take notice of, or be bound by, the law or practices of the church. where-. upon, chief justice prisot says--'to such laws, which they of the holy church have in "ancient writing," it becomes us to give credence, for such is common law, upon which all descriptions of laws are founded. and therefore, sir, we are obliged to recognise their law of the holy church--likewise they are obliged to recognise our law. and, sir, if it appears to us now that the bishop has done as an ordinary should do in such a case, then we ought to judge it good--if otherwise, bad.' in this passage, then, there is not one word about scripture in the sense of 'holy scripture.' judge prisot says, 'to such laws as the church has in ancien scripture (t. e. ancient writing) we ought to give credence.' and what does he mean by 'laws which the church has in ancient writing?' not any laws that are to be found in the bible, but the canon or ecclesiastical laws by which the temporal concerns of the church are guided. and the reason he uses the phrase 'ancien scripture,' or ancient writing, is that the laws were not then printed; the only record of them was in writing. printing had not been introduced into england, and was only just discovered on the continent, the laws therefore of the spiritual and temporal courts were only to be seen in writing. and as though there should be no doubt as to his meaning, he goes on to say, 'and as we are obliged to recognise their laws (that is the ecclesiastical laws, or laws of the spiritual courts), so they are obliged to recognise our laws (that is, the laws of the temporal courts).' it must therefore be evident that this quotation of mr. christian is a perversion or mistake, a judicial forgery or a judicial blunder, and in either case its authority is of no value. it must be dismissed altogether from our minds in considering what the law is upon this point--that is, whether christianity is or is not a part and parcel of the law of england. unfortunately, however, we shall find that this case is actually made the substratum of the law. in proving, therefore, that it cannot warrant such a law, surely i prove that at common law, at least to speak against christianity, is not an offence. the next case is that in ventris' report, vol. , p. . it is called taylor's case, and chief justice hale certainly declares explicitly in this case, 'that christianity is parcel of the laws of england.' but he cites no authority whatever. in the case analysed from the year book, it is expressly said, that the common law is to be found in 'ancient writings,' and the unsupported dictum of a judge in the middle of the seventeenth century cannot be construed as a part of the ancient writings of the common law. either the law already existed or it did not. if it did, the question is--where is it? if it did not, chief justice hale could not then make it for the first time; and this case in ventris' cannot be said to lay down the law. the case in the second volume of strange is the king v. woolston. the defendant had been convicted of writing four blasphemous discourses against the divinity and character of christ; and upon attempting to move in arrest of judgment, the court declared they would not suffer it to be debated whether to write against christianity in general was an offence punishable in the temporal courts of common law. and they cited taylor's case, which has been shown to be an insufficient authority, or rather no authority at all, and the king v. hale, in the same volume of strange, p. , but which was an indictment under the statute ( & wm. hi.) for speaking against the trinity, and therefore cannot in any way support the common law doctrine. the first person who called attention to the utter want of authority in the common law for the dictum 'that christianity was part of the common law,' was jefferson, the second president of america--himself a profound lawyer, and to his references i am indebted for the foregoing authorities, which, however, have been carefully verified. mr. jefferson, in a letter to major cart-wright, to be found in vol. ii., p. , of his 'memoirs,' exposes the mode in which this law was created. alluding to the case of prisot, he says, 'finch in his first book, c. , is the first who afterwards quotes this case. he misstates it thus: "to such laws of the church as have warrant in holy scripture, our law giveth credence," and cites prisot, mistranslating "ancien scripture" into holy scripture. this was in , a century and a half after the dictum of prisot. wingate, in , erects this false translation into a maxim of the common law, copying the words of finch, but citing prisot. shephard, title "religion," in , copies the same mistranslation, quoting the year book, finch, and wingate. hale expresses it in these words, "christianity is parcel of the laws of england," but quotes no authority. wood, , ventures still to vary the phrase, and says, "that all blasphemy and prophaneness are offences by the common law," and blackstone repeats the words of hale.' in the case of the the king v. carlile, decided since mr. jefferson wrote this letter, there was no argument as to the common law. the question was as to whether the statute ( & wm. iii.) had superseded the common law. but the common law itself was not called in question, which i submit it should be, and by a wise example superseded. but let us see what christianity is according to common law? we may remark-- . its inconsistency.--it calls blasphemy the greatest crime man can commit. yet in the case of hetherington v. moxon, it permits the _respectable_ blasphemer to go free. blasphemy in guinea volumes it allows, but exhibits the holiest horror at it when in penny pamphlets. . its barbarity, as in peter annet's case.--in michaelmas term, m. . g. . peter annet was convicted on an information for writing 'a most blasphemous libel,' in weekly papers called the _free inquirer_, to which he pleaded guilty; in consideration of which, and of his poverty, of his having confessed his errors in an affidavit, and of his being years old, and some symptoms of wildness that appeared on his inspection in court, the court declared they had mitigated his punishment to the following: to be imprisoned in newgate for one month; to stand twice in the pillory with a paper on his forehead, inscribed blasphemy; to be sent to the house of correction to hard labour for a year; to pay a fine of s. d., and to find security himself in £ , and two sureties in £ each for his good behaviour during life.* . its capriciousness.--the common law before the time of henry viii. was one thing, but afterwards it was another. the language which was blasphemy at the first period, was not so in the other. those expressions which insulted god before henry the eighth was born, did not insult him afterwards. henry the eighth's opinion made the difference. lord commissioner white-locke ( howell's state trials, p. ), in debate whether james nayler the quaker should suffer death, remarked, 'i remember a case in our book h. , where the bishop committed one to prison for a heretic, and the heresy was denying that tythes were due to the parson. this at that time was a very great heresy.' . its disregard of equal justice.--a british subject would be punished for firing into a turkish vessel; but he is not punishable for attacking the captain and sailors with bibles and tracts, which, if they read and believe, will make them apostates from the faith of mahomet, and blasphemers of the koran. while on terms of amity with the sublime porte, the laws of england restrain us from despoiling them of their property, but not from despoiling them of their religion.** * blackstone's reports, p. . ** vide freethinker's information for the people. . it debases religion as best set forth.--'religion (says miss martineau) is, in its widest sense, "the tendency of human nature to the infinite;" and its principle is manifested in the pursuit of perfection in any direction whatever. it is in this widest sense that some speculative atheists have been religious men; religious in their efforts after self-perfection; though unable to personify their conception of the infinite. in a somewhat narrower sense, religion is the relation which the highest human sentiments bear towards an infinitely perfect being. there can be no further narrowing than this. any account of religion which restricts it within the boundaries of any system, which connects it with any mode of belief, which implicates it with hope of reward, or fear of punishment, is low and injurious, and debases religion into superstition.' how much more is religion degraded that is made the subject of reward and punishment here? thus speaks the common law upon these points, and thus, as part of the common law, speaks christianity. will you, by a verdict of guilty this day, send forth to the world this card of credentials of the religion of jesus? the intention of a libel constitutes its criminality. it is for you, gentlemen, to say whether i knowingly, wickedly, and maliciously offended the law? malice is necessary to a libel--conscientious words are allowable, 'contumely and contempt are what no establishment can tolerate: but on the other hand it would not be proper to lay any restraint upon rational and dispassionate discussions of the rectitude and propriety of the established mode of worship.' bla. com. ; pmp. . and mr. starkie, on the subject, says 'that it may not be going too far from the principles and decisions, that no author or preacher who fairly and conscientiously promulgates the opinions with whose truth he is impressed for the benefit of others, is for so doing amenable as a criminal, that a malicious and mischievous intention is in such case the broad boundary between right and wrong; and that if it can be collected from the offensive levity with which so serious a subject is treated, or from other circumstances, that the act of the party was malicious, then, since the law has no means of distinguishing between different degrees of evil tendency, if the matter published contain any such tendency, the publisher becomes amenable to justice.'* * starkie on libel, pp. - . as to the duty of the jury, i have lord chief justice abbott's opinion, in his charge to the jury in summing up the evidence against mr. joseph russell at the warwick summer assizes, on friday, august , , for a political libel, being mr. hone's 'parody on the litany.' mr. russell argued that as hone had been acquitted for publishing it, he also ought to be. 'no one,' says his lordship, 'is more inclined than myself to speak reverently of the decision of juries. but, gentlemen, you cannot, under the sanction of an oath, take the verdict of those juries either directly or indirectly as your guide in the verdict you are called upon to give in this case. those juries, no doubt, returned their verdicts honestly and conscientiously according to the evidence that was layed before them. what that evidence was you can know nothing of. you are to try the question by your own consciences and by your own reason. they might have been right in their decision, and you should be careful that you are right in yours.' after this, you will see it is clear that though a jury had before found a person guilty of the offence i am charged with, it will be no justification of your doing so too. here mr. holyoake, perceiving that he would be heard fairly, and that no attempts to put him down were practised, laid aside a handful of notes, and said:-- i have to thank your lordship, and you, gentlemen of the jury, for the courtesy and attention with which i have been heard. gentlemen, if i have occupied you long you will find my apology in the circumstance that your verdict against me will occupy me longer. i could wish that justice to me and your convenience had permitted brevity. the length of my defence has originated with the charge against me, and not with myself. it is said, that when southey was asked if he were not ashamed of having written _wat tyler_, he answered, no more ashamed than i am of having been young. meaning, any man may err in youth. so i erred in being religious in my early days. if i am not religious now, deem me not criminal. religion never did me a service, how then should i love it? but it assailed my youth with gloomy dogmas, now it assails my liberty. gentlemen, if during my address to you i have offended by the frankness of my avowals, it has not proceeded from a disregard of your feelings, but from the belief that, as men, you would prefer independence to servility of speech. of the nature of the charge against me i add no further word. my only crime has been the discharge of what i considered a duty. for my difference in opinion with you upon the question of deity, i offer no apology. i have made no contract to think as you do, and i owe you no obligation to do it. if i commanded you to abjure your belief, you would disregard it as impertinence, and if you punish me for not adjuring mine, how will you reconcile it with 'doing as you would wish to be done unto?' had i said, that there is no god, still i should not deserve the penalties of the law. if i point to the wrong i see in this christian country, and ask, is this christianity? you would reply, 'no; what you refer to results from men who live without god in the world.' then, gentlemen, would you punish me for simply saying that which other men, unpunished, are every day doing? if i have said that religious revenues should be reduced one half, i spoke only the dictates of humanity at this season of national suffering. surely it is not blasphemous to argue that human misery should be alleviated at the expense of spiritual pride. i ask not equal rights with yourselves. you, as christians, can imprison those who differ from you. i do not offend your pride by asking to be admitted your equals here. i desire not such privileges. i claim merely the right to speak my convictions; to show a man the right path when i think he takes the wrong one. it is a melancholy maxim in these courts of law, that the greater the truth the greater the libel; and so it would be with me this day could i demonstrate to you that there is no deity. the more correct i am the severer would be my punishment, because the law regards the belief in a god to be the foundation of obedience among men. but i trust i have convinced you that my views of this question are compatible with the practice of all our duties to our fellow-men, borne out by eminent authority and long experience. setting aside the reprobation of persecution by middleton, by clarke, by latimer, and other divines i have quoted; leslie, reid, and bulwer have contended that the objections of the sceptic merely strengthen the fabric of piety they pretend to assail. gentlemen, which is to be believed, divines and philosophers, or the common law? these persons speak as though they believed christianity to be true; the common law punishes as though it knew it to be false. if the state religion be true, my opinion can never overcome it; and by convicting me you publish your consciousness of error in the cause you are placed there to defend as truth. if god be truth you libel him and his power, and publish the omnipotence of error. when in gaol, i one day opened the rules drawn up by the judges. the th opens thus: 'no prisoner shall lie.' now, gentlemen, how is a man to act under these circumstances in which i am placed? if you find me guilty upon the indictment before you, my case stands in this manner--if i do not lie you imprison me, and if i do you punish me. turning back to the morality of ancient days, and meditating with delight on their noble sincerity and love of truth, am i to count it a misfortune to live in modern times and among a christian people? in your churches, as i have read to you, you implore that truth and justice may descend among men, and: the supplication is a noble one. gentlemen, will you pray for truth in your churches and brand it in your courts? the atmosphere of your gaols as little assimilates with my taste as their punishments will accord with my constitution, i seek not these things, i assure you, but when they lie in the path of duty i trust i shall ever prefer them to a dereliction from it. but, gentlemen, supposing that they are my sentiments that you are requested to punish; you should first do yourselves the justice to reflect what has been said about them and insinuated in this court. learned divines, and sage writers on atheism, agree that it is too absurd to need refutation--too barren to satisfy, too monstrous to attract, too fearful to allure, too dumb to speak, and too deathly not to appal its own votaries. it is styled too grave to entertain youth, and too devoid of consolation for the trembling wants of age--too abstract for the comprehension of the ignorant, and too unreasonable to gain the admiration of the intelligent. that it is alarming to the timid, and disquieting to the brave-that it negatives everything, and sets up nothing, and is so purely speculative that it can never have a practical bearing on the business of life. gentlemen, will you disturb the harmony of these conclusions by a verdict against me, and attack that which never existed, and place upon the grave records of this court a slaying of the self-slain? will you thus draw attention to a subject you perhaps think had better be forgotten, and create a conviction that it must be a greatly important one, since you erect it into public notice by directing the thunders of the law at young and comparatively inexperienced believer in its principle? would you test my opinions by my emotions on the bed of death? let me assure you, that if men can expect to die in peace who can send their fellow men to a gaol because of honest difference of opinion, i have nothing to fear. i am told i may hold opinions, but must keep them to myself--which means, i may know and feel what is right, but must never do it. i must see my fellow-men in error, but never put them right. must live every day below the standard of right my sense of duty and conscience sets up, and all my life long 'prove all things' and never 'hold fast to the good.' the indictment charges me with having 'wickedly, maliciously, and with evil design,' against the peace of the queen, uttered certain words. what shadow of evidence has been adduced to substantiate this extravagant charge? will you suffer this court to proclaim the sacred nature of an oath, and openly violate it in the same hour and under the same roof? i might ask in the spirit of that christianity you sit there to administer, how do you propose to answer to your god in that day when the secrets of all hearts are to be opened, when all dissembling is to be exposed, and all perjury punished; how do you pro-pose to answer for having invoked the name of god in this assembly only to disregard it, on the poor plea of precedent--that others have done so before? for, gentlemen, there is nothing else that even the subtlest sophistry can conjure up to justify you. but i best prefer appealing to you as honest men, in the spirit of my own reasoning, and thinking; as men with an eye to the improvement of mankind, who would break the unjust shackles that bind them, who would discard prejudice in order to be just, who will not condemn me because i am not rich, and who will listen to humanity rather than to bigotry, and respect truthfulness wherever you may find it. i believe that in every honest heart there is a sense of rectitude that rises superior to creeds, that respects all virtue and protects all truth, that asks for no names and seeks no precedents before resolving to do rightly, that fears no man's frowns, and dares to be just without custom's permit. to this feeling, gentlemen, only do i appeal, and by its verdict i am willing to abide. mr. justice erskine: gentlemen of the jury, although the lengthened address of the defendant has demanded from you so long endurance, in this vitiated atmosphere, i still trust we shall have enough of power left to direct our minds to the parts of this case which are important. the greater part of the time has been wasted on subjects with which you have nothing to do. we are not sitting here as a deliberative assembly to consider whether in respect of such cases as this it is politic or wise to imprison for opinions--whether men ought to be punished for uttering such sentiments--and i shall have nothing to say to you on that point. we have to decide on the law as we find it. i shall make no law--the judges made no law, but have handed it down from the earliest ages. i should have no more power to alter this than to say the eldest son is not the heir of his father. allusion has been made to some expressions of mine, when in the course of my duty i directed the attention of the grand jury to these cases. certainly the printed report was highly incorrect. i said nothing to prejudice them. inasmuch as this offence directly tended to take away that foundation on which real morality can alone be safely based, i told them what i feel, that without religion there is no morality. i recommended that that foundation may be made by early education and habits of thought, but in so doing i did not mean to prejudge, nor do i seem to have been considered as doing so, i am not going to lay down as law that no man has a right to entertain opinions opposed to the religion of the state, nor to express them. man is only responsible for his opinions to god, because god only can judge of his motives, and we arrogate his duties if we judge of men's sentiments. if men will entertain sentiments opposed to the religion of the state we require that they shall express them reverently, and philosophers who have discussed this subject all agree that this is right mr. archdeacon paley has stated this in language so plain, far better than any words i could supply myself. 'serious arguments are fair on all sides. christianity is but ill-defended by refusing audience or toleration to the objections of unbelievers. but whilst we would have freedom of inquiry restrained by no laws but those of decency, we are entitled to demand, on behalf of a religion which holds forth to mankind assurances of immortality, that its credit be assailed by no other weapons than those of sober discussion and legitimate reasoning.' our law has adopted that as its rule, and men are not permitted to make use of indecent language in reference to god and the christian religion, without rendering themselves liable to punishment. you have had a great number of books read to you, arguing whether it was politic to prosecute in such cases. one of the sentiments was a dignitary's reply, 'i will answer it.' that points out the difference in these cases. sober argument you may answer, but indecent reviling you cannot, and therefore the law steps in and punishes it. you have been told you have to consider what is blasphemy. he asked the witness what he considered blasphemy, and he gave him a very sensible answer. what you have to try is, whether the defendant wickedly and devisedly did intend to bring the christian religion into contempt among the people, by uttering words of and concerning almighty god, the holy scriptures, and the christian religion. the charge is, that he uttered these words with the intention of bringing almighty god, the christian religion, and the holy scriptures, into contempt. you are not called upon to say whether in your judgment the opinions of the defendant are right or wrong--whether it is right or wrong that words like these should be punished, but whether he uttered these words with the intent charged in the indictment. these words were proved by a witness who admits that others were used, that they did not follow consecutively, and that other words were interspersed. it is right that you should have the whole set before you, for a man is not to be judged for what is partly set before you, and therefore it was necessary you should have the whole of what was said. the way in which the witness related the statements made by defendant was this: he said he had been lecturing on 'home colonisation, emigration, and poor-laws superseded.' after the lecture had been closed, some man whose name he did not then know, said the lecturer had been speaking of our duty to our fellow-men, but he had not spoken of our duty to our god, and it is important that you should notice that the words were not the subject of the lecture, but uttered in answer to a question put to him. there is no evidence that he intended to have said anything--there is no evidence that this person is a friend of the other person, or that this question was asked so as to give him an opportunity of uttering these sentiments,* if that had been the case it would have made it worse than if he had introduced it. this challenge having been made by this person, whoever it was, the defendant said--'i am of no religion at all; i do not believe in such a thing as a god.' there is nothing in the introduction of the word 'thing' to show that he intended to-treat the subject with levity and contempt. you might take it that he said he did not believe there is such a being as a god. * the artifice which mr. justice erskine here suggested to the jury never entered into my imagination. the evidence could not have given the jury any such idea, and i was pained and astonished to hear the judge employ it. the witness went on: 'he said the people of this country are too poor to have any religion, he would serve the deity as the government did the subaltern officers--place him on half-pay; i was near the door; you said the reason was the expense of religion. and then he was asked as to his opinion of blasphemy. he is then cross-examined as to his knowledge of some report made by another person. you did not lay any emphasis on the word thing; you said the word in the ordinary tone of voice.' there is something which defendant has alleged himself to have stated* which gives a stronger sting than that which was given by the witness--'i flee the bible as a viper.' the question is whether these words were uttered with the intention of bringing god and the christian religion into contempt. then the charge is made out, for i tell you that it is an offence at common law. if it is not an offence, the indictment is not worth the parchment it is written upon--if there is no such authority as that which i have laid down. any man who treats with contempt the christian religion, is guilty of an indictable misdemeanour. you have to consider the language and a passage read to you from a charge of a learned judge. 'it may not be going too far to state, that no author or preacher is forbidden stating his opinions sincerely. by maliciously is not meant malice against any particular individual, but a mischievous intent. this is the criterion, and it is a fair criterion, if it can be collected from the offensive levity in which the subject is treated, if the matter placed in the indictment contains any such tendency.' if the words had appeared in the course of a written paper you would have entertained no doubt that the person who had uttered these words had uttered them with levity. the only thing in his favour is, that it was not a written answer. the solution given by the defendant is, that although his opinions are unhappily such that he has no belief in a god, he had no intention of bringing religion into contempt. he went on to state that he considered it the duty of the clergymen of the establishment to have reduced their incomes one-half. if he had meant this, he ought to have made use of other language. you will dismiss from your minds all statements in newspapers, or other statements made out of court, and consider it in reference to the evidence. if you are convinced that he uttered it with levity, for the purpose of treating with contempt the majesty of almighty god he is guilty of the offence. if you think he made use of these words in the heat of argument without any such intent, you will give him the benefit of the doubt. if you are convinced that he did it with that object you must find him guilty, despite of all that has been addressed to you. if you entertain a reasonable doubt of his intention, you will give him the benefit of it. * in the report of my original speech to maitland, which i read to the court from the oracle. the jury, after a very brief deliberation, returned a verdict of _guilty_. [one of the jury was a deist, a professed friend of free speech, and who had said that he never could convict me, but he wanted courage when the hour of the verdict came, and gave in against me. for myself, i never for a moment expected an acquittal. during the few moments of the jury's consultation, i took my watch from my neck and gave it, with my keys, to my friend, mr. knight hunt. my papers i consigned to my friend mr. w. b. smith, as for all i knew they might the next moment become the property of the court by virtue of the sentence.] mr. justice erskine. george jacob holyoake, if you had been convicted as the author of that paper which adams has been convicted of publishing, my sentence must have been very severe. but, although the name is the same, there is no evidence of it.* you have been convicted of uttering language, and although yom have been adducing long arguments to show the impolicy of these prosecutions, you are convicted of having uttered these words with improper levity. the arm of the law is not stretched out to protect the character of the almighty; we do not assume to be the protectors of our god, but to protect the people from such indecent language. and if these words had been written for deliberate circulation, i should have passed on you a severer sentence. you uttered them in consequence of a question--i have no evidence that this question was put to draw out these words. proceeding on the evidence that has been given, trusting that these words have been uttered in the heat of the moment, i shall think it sufficient to sentence you to be _imprisoned in the common gaol for six calendar months_. * this is another of those unwarranted suppositions in which the judge ought not to have indulged. 'that paper' was written by my friend mr. chilton, editor of the oracle in my absence, and signed with his initials. the judge might have known that i was in gloucester gaol when it was written and published. i should have stopped the judge and corrected him, but i feared by seeming to separate myself from adams, to be thought capable of saving myself at his expense, or exposing him to new rigour. mr. holyoake. my lord, am i to be classed with thieves and felons? mr. justice erskine. no; thieves and felons are sentenced to the penitentiary, you to the common gaol. the court adjourned at ten o'clock. what was advanced by the counsel and the judge has been rendered in full in the foregoing report, but i have contented myself with an abstract of what i urged myself. the _times_ said i quoted from more than thirty authors, which is very likely; but it was not because i was not sensible of the good taste of brevity that i occupied the bench so long. i was standing that day in court fourteen hours, and, including the cross examinations, i was speaking more than eleven hours. i prepared notes to last me two days; and after the first six hours, my voice, usually shrill and weak, became full and somewhat sonorous. i could have spoken all night, and i should have done it had the judge attempted to put me down. but i willingly acknowledge that, on the whole, the conduct of the judge was fair to me, and patient to a degree that inspired me with great respect for the dignity of the bench, and i dedicated my 'short and easy method with the saints' to mr. justice erskine, as an actual expression of my respect. the governor of the gaol one day said to me, that i ought not to regret six months' imprisonment after occupying the court and public so many hours. i did not regret it. indeed, i more deserved the sentence for the length of my defence than for the words for which i was indicted. but it was the menace of the magistrates (before recounted) that i should not be heard, that did me the harm, and exposed me to the imputation of wanting good sense, which is a worse imputation than that of wanting orthodoxy. this came of inexperience in imprisonment. the menaces of magistrates will not so mislead me another time. when i now read the notices of these proceedings which i furnished to the _oracle_ at the time, i smile at the juvenility of comment in which i indulged. when similarly-worded reports reach me for the _reasoner_, my practice is to extract the simple facts--and, of course, the writers remonstrate with me; but how grateful should i be now if some one had done the same by me then. the principle on which we proceeded with our _oracle_ was that every man should express himself in his own words and in his own way, and we thought it a crime against freedom to distinguish between weak comment and the report of essential facts, or the expression of vital principle. the report of the proceedings rendered in these pages is given in some measure upon the rule of discrimination which i have described. but, in this, i have been impartial to others, and have omitted many things on the part of my opponents which i believe they would not repeat, and which i, therefore, have no wish to perpetuate. the remaining variations between this report and that which formerly appeared will be found to be partly on the side of greater accuracy in some respects, and more fulness in others. the original report presented most of the quotations, calling them a string of pearls, but left in a very unravelled state the string which tied them--and hence they read like abrupt interpolations. i have now given the connecting observations, the spirit of the extracts, and, in cases where the extracts have not since that time grown familiar to the public ear, i have given them also. the influence of my defence upon the public at gloucester and cheltenham, notwithstanding the difficulties under which i laboured, was in my favour beyond my expectation. the newspapers stated that the court and jury were attentive throughout, and the numbers who thronged the court behaved in the most decorous manner, testifying their interest in the proceedings by a uniform silence, manifesting neither approbation nor disapprobation.' several newspapers gave nine or ten columns of the proceedings, which was valuable propagandism. and it is due to the _cheltenham examiner_ (whose parallel between me and francis the reader will not have forgotten), to state that it gave an effective rendering of my defence, and added these compensatory words to its report:--'the defendant spoke throughout in a temperate manner, and his defence appeared to tell in his favour, so far as regarded the honesty of his motives.' let me say here that my grateful acknowledgments are due to the editor of the _cheltenham free press_. that paper reported whatever concerned my liberty, my conscience, or my character. it risked much in defending, alone among its local contemporaries, the freedom of speech violated in my person. it opened its columns to goodwyn barmby's proclamations, to catherine barmby's letters, to richard carlile's defences, and to the numerous communications of my friends on my behalf. my acknowledgments are also due to the _weekly dispatch_. on my visiting london 'publicola,' then captain williams, invited me to call upon him, and inform him of my position with respect to the pending trial; and his able letters to justice erg-kine, after my conviction, produced great uneasiness at the gaol, and each number of the _dispatch_ was awaited for some weeks by the authorities around me, as i learned from the gaolers, with anxiety. my defence, considered as a defence of the wide and momentous question of atheism, was crude enough. no one can be more sensible of that than i am. on the moral aspects of atheism and its relation to public polity i feared to enter, lest in my own newness to the study of so large a subject i should compromise it by unskilfulness of statement; i therefore confined myself to pleading that the right of public expression was the sequence of the right of private judgment--that the right of expression was consonant to the common law as well as to reason, and that the right of expression being necessary to private morality, it could not be incompatible with the public peace. chapter iii. after the sentence as soon as the sentence was pronounced, i was taken to the ceils under the court. captain mason, the governor, said there was another prisoner to go down besides me and adams. it was a case of felony. he said 'would i go with him?' i replied 'i would not.' he then asked if i 'objected to go with adams.' that i cheerfully agreed to, and, handcuffed with adams, i walked down to the gaol. having taken nothing since morning but a little raspberry vinegar, with which mr. carlile supplied me, i began to feel weak, but nothing was offered me except a little warm water, for which i asked, and this, with a very hard and bitter apple, constituted my supper. the transition from the excitement of the court to the darkness and coolness of the night-cell, made me feel as if going into a well, and my supper not serving to compose me, i continued restless till the morning. next day i felt so weak that i could scarcely stand upright. about twelve o'clock mr. bransby cooper and the rev. samuel jones came round. when mr. cooper saw me, he said, 'why, holyoake, i did not know you yesterday.' 'why, sir?' 'you did not seem to be the same person you were before.' 'in what respect was i different?' 'before you were so gentle and submissive, but yesterday there was so much _hauteur_ about you.' i answered, 'here i had to endure your authority; in court i had to defend my character and liberty. it was my turn yesterday, it is yours again to-day.' about the middle of the first day's imprisonment i was startled by the sonorous voice of the street cryer, passing near the walls of the gaol, crying with a loud voice--'howitt's correct list of all the cast, quit, and condemned;' and specifying, with marked emphasis, far above that bestowed on two cases of _wilful murder_, the case of george jacob holyoake, for uttering certain blasphemous words against god, and of and concerning the christian religion.' the above words and specification are to be found in the said 'correct list,' which a turnkey bought for me at my request, and which i still have. on the second morning after my sentence, i was sitting by the (very little) fire in the common room, contemplating, with very critical air, a can of somewhat indifferent gruel, which i had not the slightest disposition to eat, when the prayer bell rung, which did not at all improve my temper. where the gaol was situated, i enjoyed such a propinquity to dock bells, basin bells, cathedral bells, and gaol bells, that had i been inclined to _rebel_, it would have chimed in with the others. upon the aforesaid prayer bell ringing, all my fellow-prisoners made a rapid escape. i could not tell what had become of them. over my head was a large grating, for the convenience of gaolers overlooking the room. down this grating there came a tremendous voice, shouting 'holyoake! holyoake! holyoake!' the voice belonged to ogden, a man whom carlyle would have delighted to honour. nature made him for a gaoler. looking up, i said 'what do you want?' 'did you not hear that bell?' 'yes,' i said; 'what of that?' 'all the other prisoners are gone to prayers.' 'well, let the poor devils go, if they like it.' 'i can't be talked to in this way,' he roared out, in his surliest tones; 'you must go.' 'i am afraid that is a mistake of yours.' 'don't you know where you are?' 'yes; i'm in gloucester gaol, sitting over a can of very bad gruel.' 'don't you know you are a prisoner?' 'oh! yes; i am quite sensible of it.' 'well, you must do as the others do, and you must go to prayers.' 'then you must carry me.' 'i'll report you to the clergyman.' 'give the clergyman my compliments, and say i'm not coming to prayers.' he stalked away with the air of one whose dignity was greatly outraged. during the time of this colloquy prayers were suspended, and the clergyman was waiting my arrival in order to begin. as soon as prayers were well over, an order came for me--'the clergyman wanted me.' 'well, mr. holyoake,' he said, when i met him, 'how is it you did not come to prayers?' i answered, 'you cannot expect me to come to prayers; you imprison me here on the ground that i do not believe in a god, and then you would take me to chapel to pray to one. i cannot prevent your imprisoning me, but i can prevent your making me a hypocrite, and must.' 'but if you attended the ordinances of grace, it might lead you to believe in the christian religion.' 'i should be very sorry for that.' 'really me--how can you say so, sir?' 'because i should be very sorry to treat those who differ from me as you treat me.' 'you do not understand us. it is not you we persecute--it is your opinions.' 'then i wish you would imprison my opinions, and not me.' here he turned to refresh himself by looking at the rules for the regulation of prisoners in gloucester gaol. he resumed--'but you must attend prayers--it's the rule of the gaol.' 'i must do what i must do, i know; but, if i do that, i must be carried into chapel every morning, and that will not edify the remainder of your congregation. what can i do if i go? i could not say, "o lord, i have erred and strayed like a lost sheep." you see yonder gratings? i'm not likely to err and stray, for the next six months, beyond those bars.' 'ah! that is not what we mean.' 'then what do you mean? can i join with those men in saying, "o lord, who hath given us grace with one accord to make our common supplications unto thee," when i shall make no supplications, unless i am forced to it? you know the prisoners only go because the turnkey is behind them?' then i showed him the passage, 'we have done those things which we ought not to have done,' &c, and asked him what i had done, or had the chance of doing, wrong, since i came there? at this he was puzzled a little, and he at last answered-- 'ah! but we think there is a divine influence in prayer, which might operate upon you.' 'not in this place,' i answered, 'where it is so much contradicted by your practice. i will agree to this, that when on sundays you preach, and i may hear something new, i will come.' he ended the colloquy after a very christian manner, by saying, 'well, if you don't come to prayers, you shall be locked up.' i answered, 'well, sir, give your orders.' i need scarcely say this was done, in one form or other, to the end of my imprisonment. sometimes i was locked in my sleeping cell, but generally in the day room; but i found it more agreeable than the litany, and i never asked for any alteration. i went to chapel only on sunday (the preaching day), but never to the week-day prayers. offensive regulations were often sought to be applied to me. one was an attempt to make me wear the prison dress. i said i preferred my own clothes. the answer was, the rules were imperative, and they must enforce them. i inquired whether they had any spare time on their hands, for it would be necessary to dress me every morning. my answer was reported to the magistrates, and i heard no more of the project. out of doors much is said against passive resistance, but in prison it is the only resistance possible, and is often very effective, if you speak or act, you are at the mercy of those in whose power you are. take any aggressive step and your gaoler knocks you down, or locks you up in a moment. but if you simply will not do a thing, if without bluster or bravado you leave it to them to make you do it, or to do it themselves, they often find it of rather awkward accomplishment. to carry me to prayers or to dress me every morning was far more offensive and troublesome to them than breaking my head, so they left me alone. old mr. jones, the magistrate, paid me frequent visits. one day he took me to the door, and pointing upwards, asked, 'did i not see there proofs sufficient of the existence of a god?' i answered, that 'when the boundless expanse of the skies had been before me i had been unable to think so, and now the few square feet, which the high walls of the gaol permitted me to see, were still less likely to inspire me with that conviction.' a little reflection ought to have shown these gentlemen, who made these appeals to me, that the time and place were both inauspicious in which to address to me such interrogatories. indeed it was offensive, and on more than one occasion i told them, that having undertaken to compel my acquiescence with them by imprisonment, i could never divest myself of the conviction that it was superfluous to pretend to win me by argument. the last visit mr. jones paid was to read me a psalm. as on my trial i had complained of the discourtesy of their calling me a fool, the old man was particularly anxious to justify himself. he found what seemed to him a favourable opportunity in the circumstance that a german scholar had at this time published a new translation of the psalms of david. as i had spoken favourably of german theologians, he concluded that this one would have weight with me. he brought down the book, summoned the whole class of prisoners, and we stood twelve or eighteen in a row. proclaiming attention, he said he wished to read to us, and particularly to me, the th psalm. reading aloud the first verse where david observes 'the fool hath said in his heart there is no god,' mr. jones said, 'now, holyoake, you complained that we called you a fool--you see david says you are a fool.' the old man looked round with an air of triumph, which was considerably moderated when i gently but distinctly observed that 'i no more liked rudeness in the mouth of david than in the mouth of a magistrate.' my fellow-prisoners glanced around in consternation at my audacity, and expected to hear me ordered into the dark cell, but old mr. jones turned round, shut up his book, and walked away without saying a word, and i never saw him afterwards. the next day i wrote to the board of magistrates to say that 'if visiting magistrates continued to question me before other prisoners, where the discipline of the gaol forbade adequate reply, i should refuse to answer.' in future i was always called out by myself and spoken with alone. before my trial the same mr. jones told me that my friend, mr. richard carlile, had died in london a very horrible death, recanting all his principles before he expired, and urged me to take warning by his example and do the same. shortly after mr. jones was surprised to meet mr. carlile in the corridor of the gaol bringing me refreshments, which his experience assured him i needed. and it was not the least part of my pride on the day of my trial that he sat near me from morning till night, encouraging me by his presence, and assisting me by his wisdom. after my conviction he vindicated me assiduously through the press, addressed to me public letters, and wrote to justice erskine and sir robert peel, threatening to renew his former war against the church if my situation was not ameliorated--a very curious species of recantation it must be confessed, but a fair sample of the usual death-bed 'scenes' which the pulpits relate. my company as a prisoner was not of a very agreeable kind, i had to listen to recitals of depravity such as i never heard before, and do not wish to hear again. but this was not all. sometimes a companion was filthy as well as wicked. one man sent in among us had the itch, and before i found it out he had held me by the wrists in some accidental wrestle--which misfortune might have subjected me to a taste of prison discipline which few will be able to imagine. when the surgeon finds that a prisoner has this disease he makes no remark, but shortly after, the man is called out by the turnkey, whom he has to follow through various corridors to remote cells at the top of the gaol, near the gallows. upon entering one, he is told to take off his clothes. as soon as he is in a state of nudity, his clothes are taken away, and locked up. he is then shown a cask filled with brimstone, grease, and other mixture, of the consistence of pitch, and quite as offensive to the sight. with this he is made to smear his entire person over; when this is done, he is left locked up in the place. all he finds about him is a bed on which are two blankets, in which hundreds, smeared as he is, have lain before. when no longer able to endure the cold, he may lie in this place. thick and chilly, these disgusting coverings adjust themselves to the body when softened by the warmth, where, without caution, the liquid will run into the eyes and the mouth. here he remains some days and eats the uncut food which is brought to him as well as he can with his filthy fingers. such is the description of a process of cure (as i gathered from several whose experience i heard narrated), to which i might have been subjected, if, when i discovered pustules on my wrists similar to those on the infected man, i had not kept from the observation of the surgeon while they remained. my habit of daily ablution, and some medicine i procured, saved me from more than temporary discomfort. i need scarcely add, that had such a cure been attempted on me, i should have had to be carried to the place, and the application must have been effected by force. after some weeks' imprisonment, and when i had had sufficient opportunity of noticing the disposition of the authorities, and estimating the treatment to which i was to be subjected, i addressed the following, slightly abridged-- memorial of george jacob holyoake, prisoner for blasphemy* in gloucester county gaol, to sir james graham, her majesty's secretary of state. sir,--at the recent gloucester assizes your memorialist was sentenced by mr. justice erskine to six months' imprisonment for the alleged offence of blasphemy. since that period he has been confined in the common gaol and fed on convict gruel, bread, rice, and potatoes. it is true your memorialist is allowed the privilege of purchasing, to some extent, better food, but his imprisonment renders this privilege valueless, without the assistance of friends, upon whom are the claims of his family left dependent by his incarceration. under these circumstances your memorialist applied to the surgeon of the gaol for other diet; by the surgeon he was referred to the governor; by the governor to the visiting magistrates, and by the visiting magistrates back to e surgeon, who subsequently has _recommended_, though not prescribed, better diet: but from the recommendation of it, your memorialist concludes that in that gentleman's opinion it is necessary. two other surgeons whom your memorialist consulted on entering his prison warned him that a generous diet was absolutely requisite, and the decay of your memorialist's health is a testimony of its truth. he prays for other regulations than those under which he sees visitors. they have always to stand, sometimes to talk through the bars of a gate, and are permitted to stay but a few minutes. as your memorialist is far from his friends, these rules continually prevent him seeing them, and receiving those attentions to his wants he otherwise would. he wishes permission to remain up in an evening until the hour of the debtors' retiring ( o'clock), or at least to be allowed the use of a light in his cell, in which he is confined from twelve to fourteen hours, and during the winter he will be so shut up sixteen hours and a half. thus much time will be lost your memorialist could employ upon a little mathematical speculation.** which would afford him the gratification of contributing himself to the support of his family. * i always said 'prisoner for blasphemy' in all my communications, and directed my friends so to address me, to which the magistrates objected. but if i was to be written to at a gaol, i preferred to be known as a prisoner for opinion rather than as a prisoner for crime. ** mentioned to prevent the supposition on the part of sir james that the time would be employed in writing blasphemy, which would be fatal to the application. as every newspaper sent your memorialist is retained by the governor, your memorialist prays the liberty of reading them. the visiting magistrates have said they should have no objection to grant what your memorialist asks, had they the power; and hence he prays the exercise of your authority on his behalf. as custom attaches little weight to the opinion of a prisoner, it becomes not your memorialist to speak of his own case, but trusts he may with propriety refer to it as one in which he believes will be found little that is aggravated. seduced in the warmth of debate to express his honest opinion on a religious question, young and inexperienced, he took not the hypocrite's crooned path, nor the dissembler's hidden way, but unwarily uttered language disingenuousness would have concealed or art have polished, and became in consequence the ready victim of christianity. criminal without intention, punishment brings with it no consciousness or guilt, and hence that which in other circumstances would be light, is, in his, a bitter infliction. george jacob holyoake. sir james gave me permission to remain up till o'clock after i had been three months in prison. but for the concession it required an effort to be grateful, for it was a permission to remain up without fire and without light. for unless i could pay for fire and light, i had to go without. whether sir james graham intended this, i have no means of knowing; he probably expected that the magistrates would not interpret his order as a privilege to sit up in the cold and in the dark, which would be a greater punishment than going to bed. but they did put this construction upon it. as sir james did not mention fire and light, they refused to supply them. mathematical studies were impossible, for the authorities also refused to allow me my instruments, lest i should commit suicide with them; but i had provided for that, as every man should who goes to gaol. there was just width enough in my cell to admit of the heavy iron bed-frame being raised on one end. by marking a circle round one of the legs, which i did with a fragment of stone, i determined the place on which the leg would fall when the frame was pulled down. my head once placed on that spot, the great weight of the frame would have sent the narrow leg through the brain, and death must have been instantaneous. i am no friend of suicide, and had a thousand reasons for living; but i had not been long in gaol before i saw many things to which none but the degraded or the weak would submit--and lest they should come to my turn, i provided against them. about this time an event occurred in my family which converted my imprisonment into an unexpected bitterness. against that 'love abroad which means spite (or indifference) at home,' i early set my face. between me and eleanor, my wife, there always existed an understanding as to the risks i ran in my free speaking. whatever consequences fell upon my own head alone, i had myself only to please in incurring: but those which affected others, i had no right to invoke, without their consent--and this consent i always sought from my wife, in any special case which arose. at our marriage, eleanor very well understood that my life somewhat resembled a soldier's, and that it would often include duties and dangers not compatible with perennial fireside comfort nor did she object to this, and i have had the sweet fortune always to be left to do whatever i should have done, had i been single and childless. on my saying, on the imprisonment of mr. southwell, first editor of the _oracle_, that it was my duty to take his place, eleanor replied--'do what it seems your duty to do, and i and the children will take care of ourselves as well as we can. when they grow up, i trust they will contemplate with little satisfaction any advantage they might have enjoyed at the expense of their father's duty. we can leave them no riches, but we may at least leave them a good example, and an unsoiled name.' it was therefore that when i came to leave home, to go to my trial, all was calm and cheerful as usual, though there was much around to suggest uneven thoughts. on that day no one came to accompany me or to spend an hour of solace with those from whom i parted. had there been a single friend present to have made up the appearance of society after i was gone, the loneliness would have been less bitter. as i left the house i heard that cry break forth which had been suppressed that it might not sadden my departure. before i had proceeded far up windsor street, ashted, i was arrested by madeline's silvery voice calling 'good bye, dada,' and turning round i saw her large bright, black eyes (which every body praised) peering like two stars round the lintel of the door. i am glad i did not then know that i should never hear that voice again, nor see those bright eyes any more. to turn the attention of mankind in an atheistical direction may do harm to some. the propagation of all new views does harm, more or less. as in commercial speculations much capital is sunk before any returns come in, so in the improvement of the people, you sacrifice some old feeling which is good, before the new opinion, which is better, can be created. but all the new opinions i have at any time imbibed have never produced so much harm in me as the prudential doctrines of political economy. the doctrine that it is disreputable in the poor to have children, is salutary, no doubt--but it requires to be enforced under limitation. to regard the existence of your little ones as an expense, and the gentle love of children as a luxury in which you cannot indulge without reproach, is to sour life, dry up affection, and blight those whose tender years should be passed in a perpetual smile of joy. to look into the face of your child and feel that the hand of death, which shall hush that gentle voice, pale those rosy cheeks, and quench those animated eyes--is a political blessing, is horrible. i look back with mute terror on the day when i was under the influence of those feelings. i cannot dwell upon it. i would burn all the books of political economy i ever read (and i think it the science of many blessings) if i could feel once more on my knee the gentle hand of my child from whom i parted that day, too stoical to shed a tear. after a few weeks of my imprisonment had passed away, hint--words came of madeline's failing health. out of some money sent by my private friends, john fowler and paul rodgers, of shefield, to buy better food than the gaol afforded, i saved a guinea and sent it to birmingham to purchase madeline a winter cloak--it was spent in buying her a coffin. though of perfect health and agility, she was one of those children who require entire preservation from exposure, want, or fatigue. on ten shillings per week, which was all that the anti-persecution union could provide, this could not be done, as eveline, then in arms, left her mother no opportunity of increasing that small income. cold succeeded cold, when want of more means caused them all to go to live in a house ill ventilated, and where several were ill of fever, which soon attacked madeline. mr. chilton sent me several intimations to prepare for the worst, should it happen. but i could not believe in the worst happening, and indeed i had yet to realise what the worst implied. at length one morning the heavy corridor door grated on its harsh hinges, and the morose turnkey--fit messenger of misery--put a letter into my hand. as it had been, as usual, broken open--for there is no feeling, not even that of affection and death, respected in a gaol--ogden knew its contents, and in justice to him i must say he endeavoured, as well as one whose ability lay in his moroseness could, to speak a word of apology and sympathy. the strangeness and awkwardness of the attempt drew my attention to the fatal black border, which gave me sensations such as i never received before and never shall again, for the first death of one dear to you, like that of the first love, brings with it a feeling which is never repeated. i remember that some prisoner came and covered me with a coat, for i had walked into the yard without one. captain mason and two friends came round, but i could not speak to them. he addressed a few words to me, but i turned away. then madeline had died the death of the poor; she had perished among the people who know neither hope nor comfort, a pledge that i shall never forsake those with whose sad destiny one so dear to me is linked. though in the death of poverty there is nothing remarkable, though hundreds of children are daily killed off in the same way, yet parents unused to this form of calamity find in it, the first time, a bitterness which can never be told. the ten shillings per week income of the family was made up by small subscriptions by some who knew me, and by a few outside who happened to think useful the course i had taken. one or two friends whose professions had beforetime been profuse, eleanor met. they were cold, or to her they seemed so. she thought they feared a continued acquaintance might lay them under some tax to contribute to her support. this she could never bear. offering her hand to one who did not take it, she went home, and nothing induced her to subject herself to such suspicion any more. a quick and enduring sense of independence, which no privation could disturb, was an attribute in her character i had always admired, and this dreadful form of its operation i have never been able to censure. the roman mother put on the armour of her son as he went out, and saw him brought home dead from the fight without weakness: but in that case, the strife of arms, the glory of victory, the sublimity of duty, and the applause of the senate, were so many supports to the mother's heroism; but harder far is it for a mother to bend over her child day by day and night after night, and see relentless death eat like a canker into the bud of the damask cheek of beauty, and be too poor to snatch it from the tomb--and this with no trumpet note, no clang of arms to drown the dying scream, no incense of glory to raise the sinking heart, no applause of a generous people to reward the sacrifice--without one soul near who could penetrate to the depth of that desolation, and utter those words of sympathy which is all which humanity can do to soothe in the face of death. there were indeed those near who might have done so, but some could not comprehend this grief, and others, for reasons of political economy, 'did not see the good of regret' at a child dying, and they will learn from these pages for the first time that these wounds existed which, after eight years, are still fresh. there are homesteads that have witnessed deeds that battle fields, with all their bannered pomp, have little to compare with. life's great play may, so it have an actor great enough, be well performed upon a humble stage. 'my dada's coming to see me,' madeline exclaimed on the night of her death, with that full, pure, and thrilling tone which marked her when in health. 'i am sure he is coming to night, mama,' and then remembering that that could not be, she said 'write to him, mama, he will come to see me;' and these were the last words she uttered--and all that remains now is the memory of that cheerless, tireless room, and the midnight reverberation of that voice which i would give a new world to hear again. for her father, he was debating in incoherence the vain proposition as to whether he could prevail on the governor to let him go home for one night to smooth and watch over that dying pillow, and he would cheerfully and gratefully have expiated the privilege by six or twelve months' additional imprisonment. o liberty! whom the nations welcome with triumphant shouts, whom all to whom the world owes its progress have worshipped--over how many graves hast thou walked! rising with the morning's dawn, making all people radiant with thy presence, the poet thrills as thy chariot is borne on the tarn's golden beams, and he hails thee as a goddess, and blesses thee as a bride, and sings of thy triumphs and benefactions! but those who serve thee--who make their lives a sad and desert waste that thy pathway through the world may be unobstructed--who kneel to thee in their dungeon-churches and pour out the incense of life's young warm blood at gibbet-altars: they know thee by thy gory garments dripping with the blood of the father and the tear of the orphan, and the desolation which precedes thy progress. the anthems of thy march are hollow voices from siberia's mines, and vinceanes' cells--the wail of women under the russian knout, the groans of konarski and the whistle of bullets which slay the bandiera and blum--thy trophies are the fresh graves of hungary and rome, thy throne is on a hecatomb of earth's noblest and bravest sons. yet art thou still sacred in the eyes of man. queen of genius and progress! emblem of that suffering through which humanity is purified and developed! thou hast trodden on the grave of my child, and i worship then still, although thou mayst yet tread on my own. yes, though i neither hope--for that would be presumptuous--nor expect it, seeing no foundation, i shall be pleased to find a life after this. not a life where those are punished who were unable to believe without evidence, and unwilling to act in spite of reason--for the prospect of annihilation is pleasanter and more profitable to contemplate: not a life where an easy faith is regarded as 'easy virtue' is regarded among some men--but a life where those we have loved and lost here are restored to us again--for there, in that hall where those may meet who have been sacrificed in the cause of duty--where no gross, or blind, or selfish, or cruel nature mingles, where none sit but those whom human service and endurance have purified and entitled to that high company, madeline will be a hebe. yes, a future life, bringing with it the admission to such companionship, would be a noble joy to contemplate. but christianity has no such dream as this. on making arrangements for the burial, at the birmingham cemetery, the clerk asked whether they should provide a minister, or whether the friends of the deceased would do so? the answer was--'a minister was not desired. 'then i presume,' the clerk observed, 'you mean that you will provide one yourselves?' the answer again was, 'we do not require one at all. please send the beadle merely.' on the day of the interment the beadle attended as requested. he was instructed to conduct the burial party direct to the grave; and not into the chapel, which he did without remark: and when the coffin, plain but pretty, without tinsel or angels, was lowered, each threw a bouquet of flowers in, and when the grave was made up they returned home. thus madeline was buried, as became her innocence and her fate, without parade, without priest, or priestly ceremony. had hesitation been displayed, or previous inquiries been made as to whether what was done could have been permitted, no question but that a priest would have been inflicted, as at the grave of carlile and others--for christianity, always officious and rude to the dissentient, is never more so than when opposition is paralysed by agony on the bed of death, or hushed in speechless sadness by the side of the grave. as it would only be painful to mrs. holyoake, i never wished her to visit me; but after the death of madeline she desired it, and she brought little 'eveline' (a name given to her in lieu of her own because of its similarity to madeline.) on this occasion mr. bransby cooper sent to say that the magistrates' committee-room, an elegant and cheerful apartment, should be at my service, at mrs. holyoake's visit. mr. cooper was the first of the magistrates to send a message of condolence on the death of madeline, and in this instance his kindness was delicate and generous. as on the day mrs. holyoake came the magistrates happened to hold a meeting in it, an apology was sent me, and the lodge placed at my service. no turnkey was sent in, and i was permitted to see my friends with an air of perfect freedom. my sister caroline, who was one of the party, brought me a present of wine and cigars. as both were forbidden by the rules of the gaol, i declined to touch them. as i was trusted without restraint, i was doubly anxious to respect a liberty so generously conceded. had they set a watch over me, i should have had less scruple, and perhaps have thought it a merit to defeat their suspicions. captain mason, the governor, was a study--a type of the gentleman, official, and conventional, whose qualities were instructive. bland, imperturbable, civil, and firm, he was never weak and never rude. among the uneducated, all decisive action is announced in commotion or bluster. the gentleman is never in a hurry, never in a contention. if you annoy him, are rude to him, impose upon him, or menace him, perhaps he quietly indicates his opinion of the impropriety, perhaps his resolution is taken without. he avoids you. his defence is prevention. renewal of offence, renewal of intercourse, chance of altercation or repetition, is simply impossible. such was captain mason. i watched his manners with pleasure--he governed the gaol like a drawing room, excepting that the _desserts_ were not quite the same. i saw rude men baffled, they could not make out how. possibly he had nerves and sensibility, but these articles were not in common use. they were kept under lock and key, and never brought out in the routine of official duties. as blandly and courteously as he wished me good morning, he would have conducted me to the gallows, had instruction to that effect reached him. he would have apologised for the inconvenience, but he would have hung me while i was saying 'pray don't mention it.' excepting in one transaction our intercourse was unruffled. when i had left the gaol, a prisoner (the master of a post office) the only gentleman on my side of the prison, addressed to me a letter of accusation against the governor--an act which made me a participator in his sentiments. as it passed through the governor's hands, he wrote under the name the crime and sentence of the writer--a brief and bitter retort. i reenclosed the letter to the writer with a note to captain mason, observing that on leaving the gaol i had expressed to him the only opinion i entertained of him, and i should regard it as unmanly to be a party to reproaches which i did not see reason to address to him in person. he wrote me back, with a soldier's honourable frankness, that 'i had always behaved honourably in my intercourse with him, and he did not believe i would do an unmanly thing.' the exceptional transaction with the captain referred to was this. one of my fellow-prisoners was an epileptic man, whose ignorance and irritability, more than any crime, had led to his imprisonment. as i kept a sort of school in our common room, and taught a few things to those about me who were disposed to learn, i had become interested in upton, a humble and unhappy man, who learned at grammar anxiously. some nights he would fall out of bed in an epileptic fit, and lie groaning on the stone floor for an hour or more together. it was in vain that we shouted to the turnkeys. they who can hear a man think of escaping, cannot hear when he breaks his neck. upton representing that a little tobacco, to which he had been accustomed, would save him from the frequency of these fits, i procured him some. smoking it one day in a corner, in a paper pipe made for the purpose out of one of my letters, the governor came upon him through a side door. upon being asked how he procured it, he answered, 'from a man who had just come in from the sessions.' this the governor did not believe. at night ogden made an immense speech at me, in which that luminous functionary inserted several elephantine hints, to the effect that he knew the source whence the aforesaid tobacco came. it was a treat to hear ogden hint; it was like a hippopotamus putting his paw out, or kicking a man down stairs. as soon as i could get to speak to upton, i prevailed upon him to allow me to write to the governor, tell him the truth, and take the blame upon myself, reminding upton that a good man might be surprised into a lie, but only a bad man would persist in one. the retaliation of the governor was refined and vindictive. instead of ordering me into a dark cell on bread and water for two or three days, which was the authorised punishment, he ordered two gates to be locked between me and my visitors, so that those who spoke were obliged to shout to me. this he continued, with slight variation, to the end of my imprisonment. this deprived me of the pleasure of seeing ladies who called, as i would never consent to see them under circumstances of so much humiliation. captain mason had had previous proof that my professions might be trusted. when first imprisoned, the reader perhaps remembers i was kept (though on my way home after a journey) a fortnight while the magistrates played at bail. when at length they signified their intention of accepting it, captain mason took me, through the city, to bransby cooper's house, where the bail-deed was to be completed. on our way i asked him if it would be necessary for me to take an oath, before my own bond could be accepted, as i should object to take an oath? he turned round and replied--'why, holyoake, as you don't believe in any of the gods, you could have no objection to swear by them all.' i explained to him that if the magistrate would regard my oath as a mere ceremony, by which i rendered myself liable to penalties in case of violated truth or failure in my bond, i would take the oath readily, if all the gods of the pantheon were in it: but if it were regarded as a profession of my religious faith, i would not take it. it was better that i should go back to gaol, than to make a profession of belief which would mislead others. i told mr. cooper the same when we reached his house. he, however, said my signature would do. one day i concluded a dialogue with my chaplain upon the principle of reciprocation, i. e. of retorting his language upon himself, and, i think, not without utility, for he never afterwards fell into that insensible arrogance of speech so common among pastors. on the occasion referred to, he began--'are you really an atheist, mr. holyoake?' 'really i am.' 'you deny that there is a god?' 'no; i deny that there is sufficient reason to believe that there is one.' 'i am very glad to find that you have not the temerity to say that there is no god.' 'and i am very sorry to find that you have the temerity to say there is one. if it be absurd in me to deny what i cannot demonstrate, is it not improper for you to avert so dogmatically what you cannot prove?' 'then where would you leave the question of atheism?' 'just where it leaves us both. 'it is a question of probability.' 'ah! the probabilities in favour of atheism are very few.' 'how know you that? did you ever examine the question without prejudice, or read that written in its favour without fear? those who dare not look at all never see far.' 'but if the atheist has so much on his side, why does he not make it known? we do not keep back our evidences.' 'has the atheist an equal opportunity with you? is it generous in you to taunt him with lack of evidence, when you are prepared to punish its production?' 'the reason is that your principles are so horrible; as robert hall has said, 'atheism is a bloody and ferocious system.' 'permit me, sir, to return that gentle speech--to tell you that your principles are horrible, and that christianity is a bloody and ferocious system.' 'really i am shocked to hear you speak so dreadfully of christianity.' 'why should you be shocked to hear what you are not shocked to say?' 'but atheism is so revolting.' 'but christianity is so revolting.' 'how dangerous is it for atheism to corrupt the minds of children.' 'how pernicious is it for christian doctrines to corrupt the thoughts of infancy.' 'but you are only asserting.' 'are you doing otherwise? i sometimes think that christians would be more respectful in their speech if the same language could be applied to them with impunity which they apply to others.' 'but, my dear sir, the language of the atheist is so shocking to christian feeling.' 'and, my dear sir, has it never occurred to you that the language of the christian is shocking to atheistical feeling?' 'atheists have a right to their opinions, i allow, but not to publish them.' 'i shall think you speak reasonably when you permit the same rule to be applied to the christian.' 'but you really cannot be an atheist?' 'and you say this who have been a party to imprisoning me here for being one! if you believe yourself, go and demand my liberation.' 'ah! when you come to die you will wish that you were a christian.' 'can it be that i shall wish to hold a creed that i distrust--one that leads me to deny another the liberty i claim for myself? if to be capable of looking back with satisfaction on conduct like this is to be a christian, may i never die the death of the righteous, and may my last end never be like his.' as the general treatment pursued towards me did not work an satisfactory conversion, some attempts were made by gentler means. taken one day into a sleeping cell for privacy, one who had the power to fulfil his promises passed in review the casualties of a life like mine, and asked whether i had not better change it. thinking i was seduced by some attraction which belonged to my position, he suggested how fickle a thing was popularity, and how soon the applause of friends might die away, or change with the growth or refinement of my conviction, into suspicion or even hate. had i not better accept the editorship of a paper, where i should not be required to contradict, but merely to avoid advocating my views? had i not better accept a school in a retired part of the country---a girls' school also might be given to mrs. holyoake, and our joint incomes would ensure competence, respectability, and usefulness? i answered, 'i think you have mistaken me. the opinions i defended are also my convictions; and thinking them useful, it seems my duty to propagate them, and the discharge of this duty is more serious in my eyes than you suppose; nor do the inducements you picture exist. do you not see that i am nearly friendless? i am without even the attentions of those from whom i have some right to expect it. except mr. farn, mr. watts, and mr. campbell, none of my colleagues among the social missionaries have written me a friendly word. the editor of the _new moral world_, upon whose protection i have some claim, has written no word in my favour. the only public defence for which i am indebted has come from strange papers, and unknown men. even mr. owen, the advocacy of whose opinions involved me in this prosecution, he who occupied the largest share of my veneration, has not even recognised my existence by a single line. this affair may have made some noise, but i am not so young as to mistake noise for popularity, nor so weak as to think popularity the one thing needful. popularity, is to be won by those who can flatter the public, but that estimation which is alone worth having is only to be won by the service of the people, and that is not the work of youth but of life. that which you call my cause is yet in an infantine state. it has no attractions but the rude ones of daring and truth. it requires to be divested of antagonism, and developed in its relations to political and social interests and personal character. this must be the work of time, and judging from the present, it will be a work of difficult and precarious effort. at present we number no public friends of wealth or influence. we have every thing to gain--yet the comparative affluence you offer would be a canker to my peace, while it was the price of duty evaded. my self-chosen faith, presumptuous and thorny, will be sweeter to walk. it is enough that you see i am not misled by its attractions. now i tread these floors with a proud step, and meet your eye with unblenched brow, because it is necessary to show you that in defence of my opinions i feel neither fear nor guilt--but when i walk from this place into the wilderness of the world, my steps will falter and my face will pale, because my path will lie over the grave of my child.' all i remember farther is that my tempter made a few not unfeeling remarks, and led me back in silence to my usual cell. the final efforts for my conversion were on this wise. the rev. mr. cooper sent for me, a few days before my liberation, and asked me to follow him to the chapel. arrived there, he ascended the pulpit, motioning me to a prisoner's pew without even asking me to be seated. my neck was stiff with a severe cold, and i was as ill able as ill disposed to be catechised. i stood leaning on the spikes--not inapt emblems of such christian love as i had there been made acquainted with. the good chaplain prayed--i did not move. he looked at me to catch my eye--i kept mine fixed on the spikes. he addressed me--i made no sign. he spoke some minutes--still i remained motionless. he paused and asked what i thought of his representations--i answered no word. he seemed to think he was making a favourable impression. he resumed, and came to another peroration, and again besought me to answer--still no motion, no word from me. he began a third time, and touched all serious topics which he could command, and came again to an elaborate peroration on deathbeds; and as i remained still silent and immovable, he said, somewhat perplexed this time, 'holyoake, won't you speak?' i then answered 'not while we occupy these places. do you not preach to me and place me here where prisoners stand? i take this to be a ceremony, and not a conversation.' he walked down from his pulpit and asked me to accompany him, when he took me into several cells till he found one warmed with hot air, and asked would i speak with him there on friendly terms? i answered, 'with pleasure;' and there we conversed for the last time. i troubled him to repeat his arguments, as i would not admit that i had attended to a word. when he had done, i briefly assured him that my experience there had not created in me any desire to be a christian: he had brought before me no new evidences, and as it had been found necessary to enforce those i knew before by penal reasons, the operation had rather diminished their weight in my estimation. he professed himself anxious to 'present me with a bible'--a fact which i knew was destined to make a figure in the next gaol report to the county magistrates; i therefore resolved to have one worth acceptance, or not one at all. when he brought to me the usual prison copy, i respectfully declined it, i said, a thin copy bound in calf, in pearl type, with marginal references, would be interesting to me, but the dumpling-shaped book he offered, i could never endure in my library. he deliberated--the trade price of the bible he offered me was about tenpence, that i desiderated would cost him half a guinea. the reflection was fatal. the bible never came, and the evangelical fact that 'the prisoner george jacob holyoake was presented with a copy of the holy scriptures before leaving the gaol, which it is hoped, under the divine blessing, will be the means of bringing him to the knowledge of the truth'--was never recorded. about this period i saw the magistrates for the last time. there seemed to be a full board of them, and mr. bransby cooper was in the chair. before withdrawing i addressed mr. cooper, and said--'as in a short time i shall leave this place, i wish, before doing so, to express to you my sense of the kindness and consideration shown me by you when mrs. holyoake visited me here. it is one of the few things i shall remember with pleasure when again at liberty. you will not, i fear, believe in the possibility of one of my opinions feeling gratitude, but i will at least assure you of it.' the answer he made was a compensation for much that i had experienced. in that loud voice in which he usually spoke, he exclaimed--'yes, i will say this, that i believe you, holyoake. i don't believe that you could be a hypocrite.' one day a magistrate, described to me as the hon. and rev, andrew sayer, sent me a copy of paley's works, requesting my particular attention to his natural theology. 'did i put into your hands,' i said, addressing that gentleman, 'an atheistic work, you would tell me of the contamination you dread; and may i not plead the same risk in perusing your theistical book? but, as all in the search after truth must venture through phases of error, i shall not hesitate to comply with your request; and that you may be certain that i do so, you may, when i have ended, put to me any question upon the contents you please.' it happened that my examination resulted in my writing 'paley refuted in his own words.' when mr. sayer came to ask me what conclusions i had come to on the books he had lent me, i made this answer to him--* sir, i am surprised at your asking me this question. does it become you, a clergyman and a magistrate, to ask me to commit crime?' 'what do you mean?' he inquired. 'i mean this,' i replied, 'that in having punished my last expression of opinion as a crime, by bringing me here, it does not become you to put religious inquiries to me again.' he seemed confounded; and on this occasion i showed him, that while christianity punished as crime the expression of dissentient opinions, christians were disqualified from seeking the state of any man's thoughts with respect to religion. unless one volunteers explanations, christians have plainly no right to demand them. they put themselves out of the pale of ordinary privilege. writing 'paley refuted' and the 'short and easy method with the saints'--a title suggested by 'leslie's short and easy method with the deist,' another book put into my hands by the authorities--occupied me till the end of my imprisonment. on the th of february, , i was liberated; and three days after (having paid visits of acknowledgment to my friends in gloucester, cheltenham, and worcester) i rejoined (what i might then term the remains of) my family in birmingham. chapter iv. after the liberation on rejoining my colleagues of the _oracle of reason_, i proceeded to issue an address to our readers. the substance of it, which was as follows, comprises some additional facts of my prison experience:-- 'my friends,--it is now six months since cut and hacked, "i fell," not merely in the language of the parable but literally, "among thieves." of those who caused that contact, i am afraid i must say, as william hutton said of an untoward sweetheart--"there was little love between us at first, and heaven has been pleased to decrease it on a further acquaintance." christians profess to draw men to jesus with "cords of love," but were it not for their judicious foresight in telling us that they axe "cords of love," few would find it out. 'to friends in gloucester,* cheltenham, birmingham, london,** and other places, i owe many thanks for what has been contributed for my support, and for that of my family, during my imprisonment. * to gloucester two special acknowledgments are due. first to a young lady, the niece of the innkeeper, in whose house i resided, when awaiting trial, both at the sessions and assises. with no other knowledge of me than these occasions afforded, and with no prepossession in favour of my opinions, but simply from that generous sympathy women often display, she frequently brought me refreshments to the gaol, and was a medium of communication with my friends, and often answered inquiries of my family which the restrictions of the gaol sometimes rendered it impossible for me even to know. in the romance of incident, she afterwards became the wife of my friend mr. chilton. the other instance was that of mrs. price, a woman in humble circumstances, who, during the latter part of my imprisonment, brought me dinner every sunday. both mrs. price and her husband were utterly unknown to me. ** at the time of the death of madeline, mrs. ralph thomas, of london, sent to mrs. holyoake £ , subscribed by herself and personal friends. for their attentions i believe no thanks were asked and none are wished. yet i am concerned to make acknowledgments, because a man always values highly the kindness he does not expect. when the words were spoken which led to my prosecution, i expected that the cautious would think that i had gone "too far"--that the prudent would think that i had been too rash--that my friends would be afraid for me, and that the timid would be afraid for themselves. but i held with polydamus, that to speak his thoughts is every freeman's right-- in peace and war, in council and in fight. 'and, what i regarded as greater than my right, i felt it to be my duty. besides, my honour was concerned. i could not descend to that disingenuousness i had often counselled others to scorn. hence, in the course i took, i did not think it necessary to calculate consequences; a man's true concern is with his principles, and not with his fate. i pretended to no public virtue, and i laid claim to no praise--i did no more than every man ought to do. that doing so little has been so rewarded by the exertions of many friends for my protection, i must be pleased--but had nothing been done, i trust i should have found pride in penury and satisfaction under neglect, in the reflection that i had discharged my duty and preserved consistency. 'when my memorial to sir james graham was returned to the magistrates for their opinion, they came to me, and mr. bransby cooper stormed out with great violence--"you were sent here, sir, for punishment, and you have nothing else to expect. i consider you worse than the greatest felon in the gaol; you have been guilty of the most atrocious crime a man can possibly commit. i have told sir james graham what you deserve." i knew that these magistrates were christians. i was told they were gentlemen, but i thought them furies.* * yet such is the inconsistency of the christian character when allied to a generous nature, that mr. bransby cooper who, as a christian, behaved with so much rudeness, had just before given instruction to the turnkeys to treat me with respect, with a view to save me from less harshness from other officials than that which, in other moods, he so plentifully inflicted on me himself. 'the prison diet was bread, gruel, and potatoes. on two days in each week boiled rice was substituted for potatoes; and after i had been in prison nine weeks i was, by the rules, allowed a small portion of salt beef on thursdays and sundays. as this fare is deemed in gloucestershire a famous specific for the cure of atheism, it may not be out of place to explain its virtues. the gruel was little remarkable for its delicate flavour and little celebrated for its nutritious qualities, and known by the luxurious cognomen of "skilly." the rice had a blue cast, a saline taste, and a slimy look. the beef i could not often taste, seldom chew, and never digest--i should say it was rather _leather_ mode than _a la mode_. the whole of the food could only be taken by a ploughman's appetite, and only be digested by a navigator's stomach. 'the indirect occasion of my prosecution was the editorship of the _oracle_. when mr. southwell was apprehended no social missionary came forward to continue his paper, although many of them were better qualified to do so than myself. socialism had always attached great importance to freedom of expression, and socialism's advocates had been styled "apostles of freethought." knowing this, i felt that it would be a dishonourable reflection should any one refuse personally to support what he was known publicly to approve. had mr. fleming been placed in mr. southwell's situation, and had he been of opinion that i could have defended his violated liberty by taking his place, i should have edited the _new moral world_ as cheerfully as i did the _oracle of reason_. when i speak of "freedom of speech" and "liberty for all," i know of no distinction between myself and those who differ from me--i see with an equal eye the atheist and the christian, the violent and the gentle, the dogmatic and the modest. 'that is true of christianity which has been said of catholicism, "humane individuals may express their abhorrence of the sentiments of persecution--bodies of men, sections of the church itself, nay many of the dignitaries may abjure them, and protest that they have never acted upon them, nor ever will enforce them--yet all this will not avail to give a discerning man the smallest security for his liberty, his property, or his life; for as long as those intolerant decrees remain upon the statute book, they can at any time be revived." it therefore behoves everyone to set a guard over that liberty, for the loss of which no religion will ever compensate. the conviction should be permanent that christianity is a fearful thing. but bad men may laud it--mistaken men may contend that there is some good in it--unthinking men may give currency to its terms--and weak men may connive at its delusions, but we ought to regard with different sentiments a system which tramples upon the feelings of humanity and the principles of liberty. let us then secure the antidote--free expression of opposite opinion. shall it be said that we are content to wear mental fetters? when protestants, who dare never think without the bible and prayer book, have shaken off the iron despotism of catholicism--when methodists and even ranters have refused to submit their thoughts to be cut down to the procrustean bed of conventional opinion--let not christians mock at freethinking pusillanimity and deride us as holders of craven principles. not only for ourselves but for others are our exertions demanded. what patrimony has the poor man but his free thoughts? industry will not save him from chill penury's grip, nor virtue from the poor-house grave--let us then preserve and perfect the humble inheritance of those who have no other.'* in prison it is not _safe_ to make complaints. you are too much in the power of those around you to escape reprisals of a serious kind, but this did not deter me from what i conceived to be a duty, and which might make the future easier for others who might follow me in the same way. besides the endeavours i had made within the prison, with a view to tolerable treatment, i addressed, on my release, the following letter to the editor of the _cheltenham free press_-- 'mr. editor,--as prisons and prison discipline have lately occupied much public attention, i am induced to offer to your notice a little recent experience in such matters. what i have written, i intended to have stated to a public meeting, but suffering from debility, which makes me glad to avoid excitement, i seek the calmer medium of your paper. 'i speak of gloucester county gaol. i believe the prison inspector is of opinion that the rules of that place are "_harsh and cruel_." now, should a prisoner seek a partial exemption from their operation, the process he goes through is very curious. he applies to a turnkey--the turnkey answers, "my duty is determinate and my province clear; i cannot do it." probably, he refers the prisoner to the surgeon. the surgeon is seen--he refers him to the governor, the governor refers him to the visiting magistrates--they reply, "we have no power to grant the request, sir james graham only can do that." sir james graham is memorialised, who, as is usual, answers, "the visiting magistrates best know what is proper--i only grant what they recommend." any further application to them would be construed into a wilful annoyance, and the prisoner is fortunate who can sit down like sterne's happy man--pleased he knows not why, and contented he knows not wherefore. of course i blame no one, for there is no one to blame, and this constitutes the beauty of the system.** * revised and abridged from the _oracle_. ** it seemed to me useful to make applications for what i wanted in writing. it prevented mistakes, and afterwards admitted of proof. the governor used to come to me and say, 'now, holyoake, it is of no use sending this memorial. it is sure not to be attended to, and he would so obligingly bestow upon me the treasures of his experience on the futility of the course i was pursuing, that at times it really did seem not only useless--but uncivil to persist. but i used to say, 'captain mason, i suppose you are right as to the result. that makes no difference, however, as to my duty; you may put my memorials in the fire, if you like, as soon as i have written them; still i will make the proper application to every officer and every authority, and deliver them to your care, as in duty bound.' i knew the captain would not burn them--i knew more, i knew he dare not burn them. i knew, also, that each would be duly delivered to the proper party. further i knew this, that if his dissuasions had deterred me from sending in my complaints, that when i left the prison the authorities would destroy every representation i might make, by saying 'if there had been anything wrong holyoake would have complained, but as he has not done so, the aggravation he points out could not have existed, or could not have been grievous.' foreseeing this i provided against it, and disregarding the refusal of my applications, i addressed them all round with scrupulous formality. the result was, that on my liberation i found myself in a position to defy contradiction in any allegations i had to advance; and though i published this letter immediately under the eyes of the magistrates, it was never contradicted. should i individualise, it would only be to say, that the governor is a gentleman of some excellent qualities, and some unintelligible conduct; that the surgeon possesses the _suaviter in modo_ without the _fortiter in re_; and that the magistrates are little gods, who, like jupiter, thunder oftener than they smile. 'what of health i have, i owe to my friends, who supplied me with such food as my constitution required, for had i been compelled to subsist on the diet of the prison, my health, by this time, would have been quite broken. with the direction of my own medical adviser, i made this representation to the proper authorities at the gaol; i made them to the commissioners who were lately there, and i made them to sir james graham;* i therefore conceive that i am justified in repeating them here. the surgeon admitted the necessity of better diet, but referred me to the governor, and he sent me the fruitless round i have described. now the province of the governor was the care of my person, and the province of the surgeon the care of my health. the governor ought not to have permitted the reference to him, and the surgeon ought not to have made it. either the surgeon should have refused my application with decision, or have allowed it with independence. upon this subject, the commissioners reminded me, "that if the surgeon did not order what was necessary for my health, he was responsible for it." i replied "that i knew this, and that they also knew, that a prisoner, like beale of northleach, must die before he could avail himself of such responsibility, and that this was but grave consolation." but of the surgeon i wish to speak impartially, and i gladly admit, that his manner was always very kind, but i complain that his answers were always very indecisive. what he recommended he seldom prescribed, and professed that he must consult the governor when he should have consulted only himself. this fault may seem little, but its effects are great. in a gaol, the surgeon is the only person who stands between a prisoner and the grave, and it is indispensable that to the quality of humanity those of independence and decision should be joined. the kind of answers to which i have alluded were given to me more than once, and given to others as well as to me. and i again repeat, that had i been without friends, i should have left my prison without health. * in consequence of these representations some medical gentlemen of the city were brought in to examine me, who pronounced my life to be in no danger, and therefore (so it seemed) my health was not regarded as worth improving by better food. provided i did not make a case fer the house of commons, that was enough. they appeared to consider themselves as bound to keep me alive and no more. 'akin to the want of better food, was the want of exercise, and no want of damp. the yard in which i walked was so small, that i always became giddy, through the frequent turnings, before i became refreshed. the governor sometimes permitted the "fines-class" in which i was, to walk in his garden; but the occasions came seldom and lasted not long--and i was previously so enervated by confinement, that the unusual exercise thus taken, threw me into a slight fever. generally speaking, the place in which i was confined was miserably humid, and, although i took perpetual care, i had almost a perpetual cold. 'an application for a trivial favour often brought down upon me ruthless treatment. the visiting magistrates would come, and before the other prisoners denounce me as the "worst felon in the gaol, and the most atrocious of criminals." i was directed to ascribe this to the petulance of age and the rancour of orthodoxy; but i thought it proceeded from bad taste and worse feeling. 'from first to last, every newspaper sent me was detained; every letter from me was perused, and every one to me was broken open and read--and the very seals, if they happened to be heterodox, were interdicted. thus the privacy of affection and friendship were violated, and mind as well as body laid under one restraint. 'when i saw friends it was but for a few minutes, and then through the bars of a gate; to shake hands was a privilege, and to converse unheard, impossible. to me it was a momentary satisfaction made an enduring mortification. to the public it may seem a light matter that nothing can be spoken to a visitor unheard by officers, but it is no light matter to a prisoner. the commissioners inquired--"can you make no communication to your friends without its passing under the eyes of the governor, or through the ears of the turnkey?" i answered--"none; and that it was not prudent for a prisoner to mention openly what affected persons in whose power he was put--that no prisoner must calculate on gaolers being generous, for they owned few virtues not written in their rules." i spoke from experience, and gave them cases in point.* 'during the latter portion of my time all my friends were denied access to me, which, though it interfered with the supply of my wants, i did not, for the reasons stated, much regret. but this i did regret--all my letters were detained, and i was refused the privilege of writing a single letter to my family. the reason assigned by the governor for this was the enforcement of new rules, but i know that they were enforced without proper authority, and i believe applied only to me.*** 'those are happy who are for ever preserved from the reception cells of gloucester gaol. of the one in which i was put, the floor was filthy, the bed was filthier, and the window was filthier still, for in the window was--what i sicken at while i write--a rag full of human excrement. and of the bed, a prisoner assured me that when he lay in it the lice crept up his throat off the corners of the blanket which covered him. this statement, on my direction, he made to the commissioners. * one case i allude to was this. mr. bransby cooper and mr. jones had called me out to state that an application i had made for better dietary would not be acceded to. mr. cooper said the surgeon did not prescribe any other diet. i said, 'it appears to me, sir, that the surgeon dare not prescribe any other diet, unless he was first assured you would approve of it.' the answer of mr. cooper was loud, harsh, brief, and decisive. 'of course, sir, he dare not.' thus the fierce candour of this man broke through the web-work of cautiousness which surrounded prisoners there, and spoke the truth for once. ** i have since been told that mr. alcott, of america, was among the number, who, being a visitor in england, had but one opportunity of calling upon me. ***on one occasion richard carlile brought me a present of a handsome pair of large razors, which were sent back lest i should cut my throat with them. the rules of the gaol forbid the entrance of such articles, but this reason for their rejection was not in the rules, but added as suitable to my case. 'the gaol chapel is a cold place. often, on entering it, i have exclaimed, with jugurtha, on entering his roman dungeon--"heavens! how cold is this bath of yours!" yet in this place, during this inclement season, the prisoners are assembled every morning to hear prayers, on empty stomachs, after sixteen hours' confinement in their night cells. on the "long prayer" mornings, they are detained in chapel three-quarters of an hour, and the penitentiary men, on their return to their cells, find their gruel on the stone floor, gone cold in their absence. i mention this matter with reluctance, as some may suppose that i notice it only from want of religion; but perhaps a little reflection will convince them that believers, as well as unbelievers, can appreciate a warm breakfast on a cold morning!--and that an asthmatical man, however sound his faith, will have his affection painfully increased by enervation, inanition, and sudden cold. this practice i do not say is contrary to the rules, for it would be difficult to say what is, or what is not, contrary to them--and i never met with any one at the gaol who could tell. but the practice is contrary to the act of the th of geo. iv., chap. , see. , which is professed to regulate it. 'a circumstance' of a different nature from any of the foregoing i think it my duty to notice. after a considerable portion of my term of imprisonment had elapsed, and after i had memorialised sir james graham, i was permitted to remain up in an evening with my books. to this i owe what of pleasure i can be said to have experienced in gaol, and with pleasure i acknowledge it.* * before this privilege was conceded i whiled away the long nights by writing on the cover of a book, on which i had adjusted threads at equal intervals; under these threads i slipped paper, and thus wrote on the lines made by the threads, which kept in the dark the words from running into each other. when a boy i learned to write with my eyes shut, and my playful acquirement now became of service to me. in this way i wrote some letters for the _oracle,_ and much of my correspondence. scattered by force, our little party at that time, and for some years after, had to be kept together oy letters, and, incredible as it will sound, i wrote during my imprisonment from first to last nearly letters. the governor did not see them all, but he saw so many, that one day he said i sent out more letters than usually went through a local post office. 'i prefer leaving these statements without comment, and content myself with saying, that i can abundantly substantiate every one of them. on saturday last they were partly examined at the gaol by the magistrates, but i heard nothing that impugned their correctness or affected the propriety of their appearing before the public. if i have made any misrepresentations, i shall be sorry; and what is proved to be wrong i will cheerfully retract. i have written from no malevolence, for i feel none, and, as what i have related affects me no longer, my only motive is the hope of benefiting the unfortunate beings whom i have left behind me. my object is not, as some may suspect, to excite commiseration on my own part; to do this i have no wish, and no expectation, for in cheltenham it seems to be a received maxim, that they who have little faith have no feelings--certainly, none are respected. 'how my imprisonment is supposed to affect me toward religion, i cannot tell; i only know that i have no change of sentiment to own. during six months i have been "shut out from the common light and common air"--from those whom the bonds of friendship connected, and the ties of affection endeared; and some of these ties are broken for ever. after this, i can only say, that i have greater difficulty than ever in believing that humanity is the associate of piety; and if christianity has no expounders more attractive than those i have fallen in with, the day of my conversion is still distant. 'it was taught to me that the religion of jesus cherished kindness, that it promoted our best affections, and reclaimed the erring in love. but how is this accomplished in gaol? the man who goes there must leave his affections, his feelings, and his sensibilities behind him--for in gaol all are blighted, deadened, and destroyed. there no appeals are made but to coward fears, and no antidote applied to error but misery. indeed, i cannot dwell upon christianity's treatment of what she considers my errors, without wishing, with themistocles, that i could learn the art of forgetting. with regard to the cause of my prosecution, i admit that i might be wrong in the sentiments which i held, but i could not be wrong in frankly avowing them. and i may answer to christians, as did aristides to the tyrant dionysius--"i am sorry for what you have done, but i am not sorry for what i have said." despite all that has succeeded, i still prefer integrity to liberty. my resolution has long been taken, to speak nothing or to speak what i think--for who dares think one thing and another tell, my heart detests him as the gates of hell. 'christians speak what they think useful, and the same privilege ought to be conceded to me. a difference in faith ought not to make a difference in right. but while it does so, those who cannot pronounce the required shibboleth must arm themselves to bear. those are poor principles for which a man is unwilling to suffer when they are in danger. it is an encouraging reflection, that though a man's fate may be at others' disposal, his character is ever at his own--and that no enemy can dishonour him who will not dishonour himself. 'yours respectfully, 'gloucester, feb. , . 'g. j. holyoake.' the commissioners referred to in this letter asked me, when i was first taken before them, whether i had any complaint to make? i said i had. did i wish to give it as evidence? i said i did. in the evening of the next day, between and o'clock, i was called up and taken into their presence again. the governor of the gaol, captain mason, and the surgeon, mr. hicks, were present. 'take a seat, mr. holyoake,' said the speaker of the board--dr. blissett hawkins, i believe. i did so. 'now, mr. holyoake, what have you to complain of?' said the speaking commissioner. 'nothing, sir.' 'nothing! why what do you mean?' 'what i say, sir.' 'but did you not say that you had evidence that you wished to give?' 'i did.' 'has it not been at your request that you have been brought before us for that purpose?' 'it has?' 'then what are we to understand by your present statement?' 'why, sir, what you hardly need me to explain. i cannot give evidence before these gentlemen,' looking towards the governor and the surgeon. 'true,' said the questioner. 'captain mason, mr. hicks, you will please to withdraw.' when they were gone, 'now, mr. holyoake, you can speak freely,' said the chairman. 'but first i must have your guarantee that i shall suffer no inconvenience in consequence.' 'why what danger do you run?' was asked me. 'this. am i not in the power of governor and surgeon? can they not retaliate in your absence? no prisoner is safe in any gaol, as you ought to know, if the authorities come to regard him as reporting them. if you decline to give me this guarantee i shall not make any communication to you, and when i am at liberty again, i shall have a right to publish that your commission did not learn the whole truth at this gaol--that it did not even put itself in a condition to learn it.' 'well,' the chairman said, 'we guarantee that you shall suffer no inconvenience in consequence of any evidence you may give to us.' then, and not till then, did i proceed to explain what in the last letter and notes is recounted. the commissioners kept their word. the severity of the discipline, instituted by the governor when a visitor came, was somewhat relaxed; and once or twice, when i was suffering from cold (before unnoticed), a can of mutton broth was ordered me by the surgeon, in which i found a very sensible looking piece of mutton. nothing more of importance remains to be narrated. concluding, let me solicit consideration to the moral aspects of christianity, as set forth in this narrative, and to what i consider the political moral of these pages. many persons whose candour and general intelligence i do not distrust, tell me that the persecution here recounted, is not to be ascribed to christianity. to this i make the answer made on this subject (the imprisonment of myself, adams, and others) by my late friend, maltus questell ryall. 'christians set a watch upon them--christians informed against them--christians prejudiced the public against them. by christian pay were hireling lawyers retained--by christian witnesses confronted--by the christian press misrepresented--by christian juries found guilty, by christian judges condemned.' it is necessary to put the argument in this cumulative form to satisfy some understandings; but a well-informed and candid christian can hardly be supposed to need formal proof on this head. a careful study of the evangelists some time after this imprisonment, satisfied me that the religion of jesus involves persecution. a man who believes that men need saving, that there is only one way whereby they can be saved, that _his_ way is that way, and that it is better for a man to lose the whole world than to lose his own soul by missing that way, such a believer will inevitably coerce all he can into it. if he is not a persecutor he ought, in moral consistency, to be one. having the fear of the philanthropists and of the humanitarians before his eyes, he may modify his practice, but it will be at the expense of his penetration or of his religious duty. i have no difficulty whatever in understanding that the conscientious among the old inquisitors might be men of benevolence--spiritual physicians, who amputated existence with a view to save the eternal life of the patient. it is now many years since i wrote or spoke against them on religious grounds, and for a long period i have ceased to speak of persecution as being either unscriptural or unchristian. it will not do to say that what we have seen of persecution has been but the abuse of christianity. it is in itself a condemnation of christianity to be obliged to repudiate the conduct of all christian churches. it will not do to say that christians have not been wise enough to see, nor good enough to image, the divine gentleness of christ. the christian churches have been presided over by pastors who have possessed both penetration and purity in the highest degree--who were able to see what there was to be seen, and devout enough to render it in their lives. try the question even in our day. if christ be the symbol of love and gentleness to all who believe in his name, how is it that in every part of the world the freethinker should fear to fall into the hands of the christian? how is it that he must set a watch upon his words in every town and hamlet in our own land, lest the free expression of his deepest convictions should cost him his position, his employment, and his character? branded, outcast, and friendless, the christian's door is the last at which he would knock--the christian's fireside is the last at which he would find a welcome--and the christian pastor, who in knowledge, duty, and example, most nearly resembles the christ whom he preaches, is the last man whose path the freethinker would wish to cross, or into whose ear he would venture to pour the tale of his expatriations. in one passage in my defence i represent persecution, as lord brougham and others have done, as a power which spreads opinion. i believed so then, but believe it no longer. i have lived to watch the effects of persecution, and have seen it put down the truth so often, as no longer to doubt its bad efficacy. the ignorant, the timid, the opulent, and the conventional (and these make up the mass of mankind), are all deterred by danger or opprobrium, the resolute and the reckless, the only parties who persist, labour under accumulated disadvantages. condemned to spend then time in self-defence, development of doctrine--the legitimate and only source of permanent influence--is nearly impossible to them: and it is well for them if they escape acquiring an antagonistic spirit, which disfigures their advocacy and misrepresents their character. their only proselytes are those who come to them out of spite or out of sympathy, and who of course miss the intellectual ground of conviction, and can be of little real service until they have been re-educated. if, as i admit, persecution will put down opinion, what objection's there to its employment when it puts down error? i answer, 'beware of its use, because it may put down the truth also.' persecution is not an ordeal. free discussion is the only test capable of distinguishing and establishing the truth. the proper condemnation of persecution is, that it is an illegitimate opposition which is sure to be discountenanced as men become manly and refined. the armies of a civilised people observe, even in the deadly strife of battle, some rules of honourable warfare, and do not descend to the arts of treachery or tactics of savages. we may surely hope that in the battle for religious truth, a sense of honour will prevent the dominant party from taking against its opponents the undue advantage of persecution. montaigne relates that when polyperchon advised alexander to take advantage of the night for attacking darius, 'by no means,' answered the noble general; 'it is not for such a man as i am to steal such an advantage; _i had rather repent me of my fortune than be ashamed of my victory_,' it is not too much to expect that christianity will always be less refined than war. persecution, always a disaster, was not however with us a defeat. we were not put down by persecution; we continued the _oracle_ a hundred and four weeks, then the movement, sixty-eight weeks, and the _reasoner_ will soon have completed ten volumes. besides having written in our publications, we have, in almost all the principal cities and towns in the kingdom, spoken, since the trial at gloucester, with the utmost explicitness. the imprisonment has at least been of this service--and this is all--it has enabled me to speak accredited by the sincerity which otherwise could not have been so satisfactorily manifest to the multitude. to have spent, without shrinking, some portion of life in prison in defence of public liberty, gives the same authority among the people as having graduated at a university does among scholars.* the fact is a sad illustration of the brutal manner in which the people are condemned to win the enlargement of their liberties. in cases where clergymen have menaced me with renewed imprisonment, i have always answered--'i consider myself as having taken out a license to speak freely. the government made a charge to me of six months' imprisonment for that privilege, and i paid the price. if you have renewed demands upon me, let me know them, and i will endeavour to meet them; but do not interrupt me.' * when the prizes were awarded me for writing the literary lectures of the manchester unity, an attempt was made to cancel the award on the ground of my having been imprisoned, but it was immediately quashed. when the legislation of the order was before the house of lords, the bishop of oxford (in committee) made an objection to the lectures on account of the authorship, but the unity refused to withdraw them, and they are in use to this day. the objections of this nature made in some instances by the press have been inoperative where the people have been concerned. in the present structure of english political society, to preserve the ability to be imprisoned is necessary to usefulness. when the associations of home have twined themselves around the feelings--after long industry and patient frugality have surrounded a man with some comforts unknown to his youth--few have the temper which will part from them and walk into a gaol at the call of duty. i should think this state the death of progress. when, some time ago, insuring my life in the equity law insurance office, i asked, before i took out my policy, whether it would be forfeited if my death was occasioned by imprisonment or transportation. the directors naturally asked whether i was liable to those casualties. i said, not particularly liable i hoped; but to be able to be imprisoned, if it seemed a duty, i valued as a great privilege, and i would not barter my right to be imprisoned. i am afraid they smiled at my eccentricity, but they assured me that that accident would not involve the forfeiture of my policy--which i then took out. no one who reads thus far will, i hope, consider me as a candidate for either imprisonment or transportation. i have too keen an insight into their misery for that. but he who pretends to take the side of the people ought to see his way all through, and not incur a danger he has not weighed, and not suffer any to ascribe to him a virtue he does not mean to maintain. if any, from what i have just expressed, or from the transactions of this narrative, shall conclude that i am disposed to regard law-breaking lightly, they will mistake me. respect for the law is an intelligent virtue--a sign of fitness for freedom so important that none but an enemy would obscure the duty or weaken the sentiment. if accused, in the matter which led to my trial, of breaking the law, i might plead that there was no law to break, and therefore i could not break one. what is called the common law relating to blasphemy is a mere caprice, an opinion interpreted by ignorance or sectarian prejudice, and enforced at the call of bigotry--malevolent to the humble while neutral towards the rich. against this tyranny one is obliged to rebel. it is disastrous that we should have to set up the standard of resistance even in a case of this kind, and the chief justification is that a democratic government is denied us. had the people a voice in making the laws, the breaking of any law would require grave justification. men have two lives--a private and a public one. conscience is the guide of all that relates to private duty, but law is the conscience of society, and it is best when private conscience can be subordinate to the public conscience. private conscience may be the child of selfishness, fanaticism, or vanity, as well as of the greatest purity and intelligence. a man, therefore, should be careful how he places so uncertain a thing above the law. if private conscience be more just and intelligent than the public conscience, a democratic form of government affords peaceful facilities whereby it can come into the ascendant. but where these modes are denied, no alternative remains but that of rebellion or unconditional and indefinite submission. resistance to the law, however, or to what is tacitly accepted by the majority as law, is, under any form of government, so pernicious an example, is so liable to be abused, so liable to unfit the people who learn the lesson, for submission to legitimate authority, that these cases demand the strictest surveillance before they receive the sanction of a friend of the people. in all instances in which conscience is the ground of resistance, the wrong done to conscience ought to be clear, deep, and momentous, and the necessity which obliges the claims of private conscience to be put above the laws ought to be made so evident that the sentiment of freedom shall not deteriorate that of legitimate and honourable allegiance. if the political moral of this narrative be therefore drawn with discrimination, we may do little harm even if mistaken in the belief that the prevalence of our views of life may be a public good; and if this belief prove to be right in the main, we do what reformers are said often to forget--we make a past to which the future may refer for authority and instruction. then not 'in vain!' even obscurest weeds nourish the roots of fruitfulest fair trees so from our fortune loathed hope proceeds the experience that may base high victories.* * w. j. union. what 'our views' are this is not the place to state; as to some it would seem that under the pretext of a plea for free utterance, sentiments were obtruded upon the reader he was not forewarned to expect. i therefore limit myself to saying (and that only for the sake of others who will decline to concede free utterance until they know what has to be uttered) that whoever sees in atheism simply the development of a negation, sees but half the truth. even in this respect (supposing existing theological systems to be erroneous) atheism has the merit of clearing the way for pure moralism--which is the other half, or positive ground of atheism. the latest writers on the philosophy of religion resolve religion into _dependance_; by which its modern theory at length coincides with its ancient practice. we venture to think that this is not salutary teaching. life should be self-reliant. it seems to us that the light of nature and the experience of man are anterior to the dogmas of priests, and are the sources whence guidance and duty independently spring. the priest breaks in upon the integrity of life, and diverts its course. he says he makes an addition to our knowledge--we do not find it so. he professes to show us the hidden mysteries of the future--we fail to see them. he simply encumbers us, and we pray him to stand aside. the responsibility of our course is our own and not his, and we have a right to be left free. rejecting his advices, he proclaims that we reject truth, honour, justice, love. this is his error or the retaliation of his disappointment. we appeal to the candid and the impartial to judge between us. we respect theology as the science of man's destiny, and regret that it bears no fruits for us: but this is not our fault; and we therefore attempt to solve the problem of life for ourselves. our progress already counts some distinct steps. we have recast the practice of controversy: we forbid to ourselves to suspect evil motives, or to impute insincerity to others; the doubtful act we propose to judge by evidence alone, and to put the best construction on the dubious word. thus we annihilate antagonism, the eldest foe of progress, by imposing laws on impulse. our search in every system is directed after _moral truth_; and, less exacting than the christian, we accept it, whether given by inspiration, confirmed by miracle, attested by prophecy, or not. probity of word and act may be securely based on the intelligence and refinement of mankind--and this we labour to enforce. to restrict human expectation to that which is ascertainable by reason, must have the effect of concentrating attention on humanity, and intensifying interest in human exertions. in solidarity we find the encouragement to public endeavour, and we sum up private duty in honour, which is respecting the truth; in morality, which is acting the truth; and in love, which is serving the truth. the end. holyoake brothers, printers, . queen's head-passage, paternoster-row. copyright (c) , by s. a. reilly our legal heritage king aethelbert - king george iii, , a.d. - by s. a. reilly, attorney e. delaware place chicago, illinois - s-reilly@att.net copyright (c) , preface this book was written for people with an interest in english legal history who don't know where to start reading, as i didn't. its purpose is also to look at history through its laws, which do not lend themselves to interpretation, and thus points of view, as does conventional history; one cannot argue with the black letter of the law. attorneys will be interested in reading about the historical context in which the legal doctrines they learned in law school developed. this book includes the complete law codes of king alfred and of king aethelbert, the law code of king canute, paraphrased, excerpts from the law code of henry i, the entire magna carta, and the statutes of england relevant to english life, but excluding such topics as scottish affairs and wars with ireland. it also includes the inception of the common law system, which was praised because it made law which was not handed down by an absolutist king; the origin of the jury system; the meaning of the magna carta provisions in their historical context; and the emergence of attorneys. this book is a primer. one may read it without prior knowledge of history or law, although it will be more meaningful to attorneys than to others. it can serve as an introduction on which to base further reading in english legal history. it defines terms unique to english legal history. however, the meaning of some terms in king aethelbert's code in chapter are unknown or inexact. in the table of contents, the title of each chapter denotes an important legal development in the given time period for that chapter. each chapter is divided into three sections: the times, the law, and judicial procedure. the times section sets a background and context in which to better understand the law of that period. the usual subject matter of history such as battles, wars, royal intrigues, periods of corruption, and international relations are omitted as not helping to understand the process of civilization and development of the law. standard practices are described, but there are often variations with locality. also, change did not come abruptly, but with vacillations, e.g. the change from pagan to christian belief and the change to allowance of loans for interest. the scientific revolution was accepted only slowly. there were often many attempts made for change before it actually occurred, e.g. gaining parliamentary power over the king's privileges, such as taxation. the law section describes the law governing the behavior and conduct of the populace. it includes law of that time which is the same, similar, or a building block to the law of today. in earlier times this is both statutory law and the common law of the courts. the magna carta, which is quoted in chapter , is the first statute of england and is listed first in the "statutes of the realm" and the "statutes at large". the law sections of chapters - mainly quote or paraphrase almost all of these statutes. excluded are statutes which do not help us understand the development of our law, such as statutes governing wales after its conquest and statutes on succession rights to the throne. the judicial procedure section describes the process of applying the law and trying cases, and jurisdictions. it also contains some examples of cases. money is expressed in pounds, shillings, pence, scaetts, or marks, which is a danish denomination. there are twenty shillings in a pound. a mark in silver is two-thirds of a pound. shillings are abbreviated: "s." the pre-norman english shilling was divided into pence or pennies. in henry i's time, the shilling was divided into pence. the norman shilling was introduced by henry ii and was divided into pennies. this penny was literally one pennyweight of silver, so a pound sterling thus weighed pennyweights. pence are abbreviated "d.", for the roman denarius. for example, six shillings and two pence is denoted s. d. a scaett was a coin of silver and copper of lesser denomination; there were scaetts to one shilling. there were no coins of the denomination of shilling during pre-norman times. dedication and acknowledgements a vassar college faculty member once dedicated her book to her students, but for whom it would have been written much earlier. this book "our legal heritage" is dedicated to the faculty of vassar college, without whom it would never have been written. much appreciation goes to professor james curtin of loyola law school for his review and comments on this book's medieval period: chapters - , and especially his comment that "i learned quite a bit about life in those days from your work." thanks go to loyola university law school professor george anastaplo for introducing me to professor curtin. much appreciation goes to professor lacey baldwin smith of northwestern university's history department for his review and comments on this book's tudor and stuart periods: chapters - , especially his comment that he learned a lot. thanks go to northwestern university law school professor steven presser for introducing me to professor smith. finally, many thanks go to fellow mensan william wedgeworth for proof-reading the entire book. table of contents chapters: . tort law as the first written law: to . oaths and perjury: - . marriage law: - . martial "law": - . criminal law and prosecution: - . common law for all freemen: - . magna carta: the first statute: - . land law: - . legislating the economy: - . equity from chancery court: - . use-trust of land: - . wills and testaments of lands and goods: - . consideration and contract law: - . welfare for the poor: - . independence of the courts: - . freedom of religion: - . habeas corpus: - . service of process instead of arrest: - appendix: sovereigns of england bibliography chapter the times: before a.d. the settlement of england goes back thousands of years. at first, people hunted and gathered their food. they wore animal skins over their bodies for warmth and around their feet for protection when walking. these skins were sewn together with bone needles and threads made from animal sinews. they carried small items by hooking them onto their belts. they used bone and stone tools, e.g. for preparing skins. their uncombed hair was held by thistlethorns, animal spines, or straight bone hair pins. they wore conical hats of bound rush and lived in rush shelters. early clans, headed by kings, lived in huts on top of hills or other high places and fortified by circular or contour earth ditches and banks behind which they could gather for protection. they were probably dug with antler picks and wood spades. the people lived in rectangular huts with four wood posts supporting a roof. the walls were made of saplings, and a mixture of mud and straw. cooking was in a clay oven inside or over an open fire on the outside. water was carried in animal skins or leather pouches from springs lower on the hill up to the settlement. forests abounded with wolves, bears, deer, wild boars, and wild cattle. they could more easily be seen from the hill tops. pathways extended through this camp of huts and for many miles beyond. for wives, men married women of their clan or bought or captured other women, perhaps with the help of a best man. they carried their unwilling wives over the thresholds of their huts, which were sometimes in places kept secret from her family. the first month of marriage was called the honeymoon because the couple was given mead, a drink with fermented honey and herbs, for the first month of their marriage. a wife wore a gold wedding band on the ring finger of her left hand to show that she was married. women usually stayed at home caring for children, preparing meals, and making baskets. they also made wool felt and spun and wove wool into a coarse cloth. flax was grown and woven into a coarse linen cloth. spinning the strands into one continuous thread was done on a stick, which the woman could carry about and spin at anytime when her hands were free. the weaving was done on an upright or warp-weighted loom. people of means draped the cloth around their bodies and fastened it with a metal brooch inlayed with gold, gems, and shell, which were glued on with glue that was obtained from melting animal hooves. people drank from hollowed- out animal horns, which they could carry from belts. they could tie things with rawhide strips or rope braids they made. kings drank from animal horns decorated with gold or from cups of amber, shale, or pure gold. men and women wore pendants and necklaces of colorful stones, shells, amber beads, bones, and deer teeth. they skinned and cut animals with hand-axes and knives made of flint dug up from pits and formed by hitting flakes off. the speared fish with barbed bone prongs or wrapped bait around a flint, bone, or shell fish hook. on the coast, they made bone harpoons for deep-sea fish. the flint ax was used to shape wood and bone and was just strong enough to fell a tree, although the process was very slow. the king, who was tall and strong, led his men in hunting groups to kill deer and other wild animals in the forests and to fish in the streams. some men brought their hunting dogs on leashes to follow scent trails to the animal. the men threw stones and spears with flint points at the animals. they used wood clubs to beat them, at the same time using wood shields to protect their bodies. they watched the phases of the moon and learned to predict when it would be full and give the most light for night hunting. this began the concept of a month. circles of stone like stonehenge were built with alignments to paths of the moon. if hunting groups from two clans tried to follow the same deer, there might be a fight between the clans or a blood feud. after the battle, the clan would bring back its dead and wounded. a priest officiated over a funeral for a dead man. his wife would often also go on the funeral pyre with him. the priest also officiated over sacrifices of humans, who were usually offenders found guilty of transgressions. sacrifices were usually made in time of war or pestilence, and usually before the winter made food scarce. the clan ate deer that had been cooked on a spit over a fire, and fruits and vegetables which had been gathered by the women. they drank water from springs. in the spring, food was plentiful. there were eggs of different colors in nests and many hare to eat. the goddess easter was celebrated at this time. later, there was farming and domestication of animals such as horses, pigs, sheep, goats, chicken, and cattle. of these, the pig was the most important meat supply, being killed and salted for winter use. next in importance were the cattle. sheep were kept primarily for their wool. flocks and herds were taken to pastures. the male cattle, with wood yokes, pulled ploughs in the fields of barley and wheat. the female goat and cow provided milk, butter, and cheese. the chickens provided eggs. the hoe, spade, and grinding stone were used. thread was spun with a hand-held spindle which one hand held while the other hand alternately formed the thread from a mass and then wound it around the spindle. a coarse cloth was woven and worn as a tunic which had been cut from the cloth. kings wore tunics decorated with sheet gold. decorated pottery was made from clay and used to hold liquids and for food preparation and consumption. during the period of "lent" [from the word "lencten", which means spring], it was forbidden to eat any meat or fish. this was the season in which many animals were born and grew to maturity. wood carts with four wheels were used to transport produce and manure. horses were used for transportation of people or goods. wood dug-out boats and paddles were used to fish on rivers or on the seacoast. clans had settlements near rivers. each settlement had a meadow, for the mowing of hay, and a simple mill, with round timber huts, covered with branches or thatch or turf supported by a ring of posts. inside was a hearth with smoke going up through a hole in the roof, and a cauldron for cooking food. there was an upright loom in the darkness. the floor was swept clean. at the door were spears or bags of slingstones ready for immediate use. the king lived in the largest hut. gullies outside carried off excess water. each hut had a garden for fruit and vegetables. a goat or cow might be tied out of reach of the garden. there was a fence or hedge surrounding and protecting the garden area and dwelling. buckets and cauldrons which had originated from the mediterranean were used. querns with the top circular stone turned by hand over the bottom stone were used for grinding grain. there were ovens to dry and roast grain. grain was first eaten as a porridge or cereal. there were square wood granaries on stilts and wood racks on which to dry hay. grain was stored in concealed pits in the earth which were lined with drystone or basket work or clay and made airtight by sealing with clay or dung. old pits were converted into waste dumps, burials, or latrines. outside the fence were an acre or two of fields of wheat and barley, and sometimes oats and rye. wheat and rye were sown in the fall, and oats and barley in the spring. sowing was by men or two oxen drawing a simple scratch plough. the crops were all harvested in the summer. in this two-field system, land was held by peasants in units designed to support a single extended family. these fields were usually enclosed with a hedge to keep animals from eating the crop and to define the territory of the settlement from that of its neighbors. flax was grown and made into linen cloth. beyond the fields were pastures for cattle and sheep grazing. there was often an area for beehives. this was subsistence level farming. pottery was given symmetry when formed with use of a wheel and heated in increasingly hot kilns. from kilns used for pottery, it was noticed that lumps of gold or copper ore within would melt and assume the shape of what they had been resting on. these were the first metals, and could be beaten into various shapes, such as ornaments. then the liquid ore was poured into moulds carved out of stones to make axes [small pointed tool for piercing holes in leather, wood, or other soft materials] and daggers, which were reheated and hammered to become strong. copper-tipped drills, chisels, punches and awls were also made. the bodies of deceased were buried far away from any village in wood coffins, except for kings, who were placed in large stone coffins after being wrapped in linen. buried with them were a few personal items, such as copper daggers, flat copper axes, and awls. the deceased was buried in a coffin with a stone on top deep in the earth to keep the spirit of the dead from coming out to haunt the living. it was learned that tin added to the copper made a stronger metal: bronze. stone hammers, and bronze and iron tools, were used to make cooking pots, weapons, breast plates, and horse bits, which were formed from moulds and/or forged by bronze smiths and blacksmiths from iron extracted from iron ore heated in bowl- shaped hearths. typically one man operated the bellows to keep the fire hot while another did the hammering. bronze was made into sickles for harvesting, razors for shaving, tweezers, straight hair pins, safety pins for clothes, armlets, neck-rings, and mirrors. weapons included bows and arrows, flint and copper daggers, bronze swords and spears, stone axes, and shields of wood with bronze mountings. the bows and arrows probably evolved from spear throwing rods. kings in body armor fought with chariots drawn by two horses. the horse harnesses had bronze fittings. the chariots had wood wheels, later with iron rims. when bronze came into use, there was a demand for its constituent parts: copper and tin, which were traded by rafts on waterways and the sea. when iron came into use, there were wrought iron axes, saws, adzes [ax with curved blade used to dress wood], files, ploughshares, harrows [set of spikes to break clods of earth on ploughed land and also to cover seed when sewn], scythes, billhooks [thick knife with hooked point used to prune shrubs], and spits for hearths. lead was mined. there was some glassmaking of beads. wrought iron bars were used as currency. hillforts now had wooden palisades on top of their banks to protect the enclosed farmsteads and villages from stock wandering off or being taken by rustlers, and from attacks by wild animals or other people. later a rampart was added from which sentries could patrol. these were supported by timber and/or stone structures. timbers were probably transported by carts or dragged by oxen. at the entrances were several openings only one of which really allowed entry. the others went between banks into dead ends and served as traps in which to kill the enemy from above. gates were of wood, some hung from hinges on posts which could be locked. later guard chambers were added, some with space for hearths and beds. sometimes further concentric circles of banks and ditches, and perhaps a second rampart, were added around these forts. they could reach to acres. the ramparts are sufficiently widely spaced to make sling-shotting out from them highly effective, but to minimize the dangers from sling-shotting from without. the additional banks and ditches could be used to create cattle corridors or to protect against spear-thrown firebrands. however, few forts had springs of water within them, indicating that attacks on them were probably expected to be short. attacks usually began with warriors bristling with weapons and blowing war trumpets shouting insults to the foe, while their kings dashed about in chariots. sometimes champions from each side fought in single combat. they took the heads of those they killed to hang from their belts or place on wood spikes at the gates. prisoners, including women and children, might become slaves. kings sometimes lived in separate palisades where they kept their horses and chariots. circles of big stones like stonehenge were rebuilt so that the sun's position with respect to the stones would indicate the day of longest sunlight and the day of shortest sunlight. between these days there was an optimum time to harvest the crops before fall, when plants dried up and leaves fell from the trees. the winter solstice, when the days began to get longer was cause for celebration. in the next season, there was an optimum time to plant seeds so they could spring up from the ground as new growth. so farming gave rise to the concept of a year. certain changes of the year were celebrated, such as easter, named for the goddess of the dawn, which occurred in the east (after lent); may day celebrating the revival of life; lammas around july, when the wheat crop was ready for harvesting; and on october the celtic eve of samhain, when the spirits of the dead came back to visit homes and demand food or else cast an evil spell on the refusing homes; and at which masked and costumed inhabitants representing the souls of the dead paraded to the outskirts of the settlements to lead the ghosts away from their homes; and at which animals and humans, who might be deemed to be possessed by spirits, were sacrificed or killed perhaps as examples, in huge bonfires [bonefires] as those assembled looked out for spirits and evil beings. there was an agricultural revolution from the two-field system in which one field was fallow to the three-field system, in which there were three large fields for the heavy and fertile land. each field was divided into long and narrow strips. each strip represented a day's work with the plough. one field had wheat, or perhaps rye, another had barley, oats, beans, or peas, and the third was fallow. it had been observed that legumes such as peas and beans restored the soil. these were rotated yearly. there was a newly invented plough that was heavy and made of wood and later had an attached iron blade. the plough had a mould-board which caught the soil stirred by the plough blade and threw it into a ridge alongside the furrow dug by the plough blade. this plough was too heavy for two oxen and was pulled by a team of about eight to ten oxen. each ox was owned by a different man as was the plough, because no one peasant could afford the complete set. each freeman was allotted certain strips in each field to bear crops. his strips were far from each other, which insured some very fertile and some only fair soil, and some land near his village dwelling and some far away. these strips he cultivated, sowed with seed, and harvested for himself and his family. after the harvest, they reverted to common ownership for grazing by pigs, sheep, and geese. as soon as haymaking was over, the meadows became common grazing land for horses, cows, and oxen. not just any inhabitant, but usually only those who owned a piece of land in the parish were entitled to graze their animals on the common land, and each owner had this right of pasture for a definite number of animals. the faster horse replaced the ox as the primary work animal. other farm implements were: coulters, which gave free passage to the plough by cutting weeds and turf, picks, spades and shovels, reaping hooks and scythes, and sledge hammers and anvils. strips of land for agriculture were added from waste land as the community grew. waste lands were moors bristling with brushwood, or gorse, heather and wanton weeds, reed-coated marshes, quaking peat-bogs, or woods grown haphazard on sand or rock. with iron axes, forests could be cleared to provide more arable land. some villages had a smith, a wheelwright, and a cooper. there were villages which had one or two market days in each week. cattle, sheep, pigs, poultry, calves, and hare were sold there. london was a town on the thames river under the protection of the celtic river god lud: lud's town. it's huts were probably built over the water, as was celtic custom. it was a port for foreign trade. near the town was ludhill. each celtic tribe in england made its own coinage. silver and bronze were first used, and then gold. the metal was put into a round form and then placed between two engraved dies, which were hit. flint workers mined with deer antler picks and ox shoulder blade shovels for flint to grind into axes, spearheads, and arrowheads. mine shafts were up to thirty feet deep and necessitated the use of chalk lamps fueled by animal fat with wicks of moss. the flint was hauled up in baskets. common men and women were now buried in tombs within memorial burial mounds of earth with stone entrances and interior chambers. a man's weapons and shield were buried with him and a woman's spindle and weaving baton, and perhaps beads or pottery with her. at times, mounds of earth would simply be covered over piles of corpses and ashes in urns. in these mass graves, some corpses had spear holes or sword cuts, indicating death by violence. the druid priests, the learned class of the celts, taught the celts to believe in reincarnation of the soul after death of one body into another body. they also threw prized possessions into lakes and rivers as sacrifices to water gods. they placed images of gods and goddesses in shrines, which were sometimes large enough to be temples. they thought of their gods as supernatural magicians. with the ability to grow food and the acquisition of land by conquest by invading groups, the population grew. there were different classes of men. the freemen were eorls [noble freemen] or ceorls [ordinary free farmers]. slaves were not free. freemen had long hair and beards. slaves' hair was shorn from their heads so that they were bald. slaves were chained and often traded. prisoners taken in battle, especially native britons taken by invading groups, became slaves. a slave who was captured or purchased was a "theow". an "esne" was a slave who worked for hire. a "weallas" was a welsh slave. criminals became slaves of the person wronged or of the king. sometimes a father pressed by need sold his children or his wife into bondage. debtors, who increased in number during famine, which occurred regularly, became slaves by giving up the freeman's sword and spear, picking up a slave's mattock [pick ax for the soils], and placing their head within a lord's or lady's hands. they were called wite- theows. the original meaning of the word lord was "loaf-giver". children with a slave parent were slaves. the slaves lived in huts around the homes of big landholders, which were made of logs and consisted on one large room or hall. an open hearth was in the middle of the earthen floor of the hall, which was strewn with rushes. there was a hole in the roof to let out the smoke. here the landholder and his men would eat meat, bread, salt, hot spiced ale, and mead while listening to minstrels sing about the heroic deeds of their ancestors. richer men drank wine. there were festivals which lasted several days, in which warriors feasted, drank, gambled, boasted, and slept where they fell. physical strength and endurance in adversity were admired traits. slaves often were used as grain grinders, ploughmen, sowers, haywards, woodwards, shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids, and barnmen. slaves had no legal rights. a lord could kill his slave at will. a wrong done to a slave was regarded as done to his owner. if a person killed another man's slave, he had to compensate him with the slave's purchase price. the slave owner had to answer for the offenses of his slaves against others, as for the mischief done by his cattle. since a slave had no property, he could not be fined for crimes, but was whipped, mutilated, or killed. during famine, acorns, beans, peas, and even bark were ground down to supplement flour when grain stocks grew low. people scoured the hedgerows for herbs, roots, nettles, and wild grasses, which were usually left for the pigs. sometimes people were driven to infanticide or group suicide by jumping together off a cliff or into the water. several large kingdoms came to replace the many small ones. the people were worshipping pagan gods when st. augustine came to england in a.d. to christianize them. king aethelbert of kent and his wife, who had been raised christian on the continent, met him when he arrived. the king gave him land where there were ruins of an old city. augustine used stones from the ruins to build a church which was later called canterbury. he also built the first st. paul's church in london. aethelbert and his men who fought with him and ate and lived in his household [gesiths] became christian. a succession of princesses went out from kent to marry other saxon kings and convert them to christianity. augustine knew how to write, but king aethelbert did not. the king announced his laws at meetings of his people and his eorls would decide the punishments. there was a fine of s. for disregarding a command of the king. he and augustine decided to write down some of these laws, which now included the king's new law concerning the church. these laws concern personal injury, killing, theft, burglary, marriage, adultery, and inheritance. the blood feud's private revenge for killing had been replaced by payment of compensation to the dead man's kindred. one, or one's blood kindred, paid a man's "wergeld" [worth] to his blood kindred for causing his wrongful death. the wergeld [wer] of a king was an unpayable amount of about s., of an aetheling [a king-worthy man of the extended royal family] was s., of an eorl, s., of a ceorl, s., of a laet [agricultural worker in kent, which class was between free and slave], - s., and of a slave nothing. at this time a shilling could buy a cow in kent or a sheep elsewhere. if a ceorl killed an eorl, he paid three times as much as an eorl would have paid as murderer. personal injury was compensated by a "bot". the penalty for slander was tearing out of the tongue. if an aetheling was guilty of this offense, his tongue was worth five times that of a coerl, so he had to pay proportionately more to ransom it. the crimes of murder, treachery to one's own lord, arson [burning a house], house breaking, and open theft, were punishable by death and forfeiture of all property. the law "these are the dooms [decrees] which king aethelberht established in the days of augustine . [theft of] the property of god and of the church [shall be compensated], twelve fold; a bishop's property, eleven fold; a priest's property, nine fold; a deacon's property, six fold; a cleric's property, three fold; church frith [breach of the peace of the church; right of sanctuary and protection given to those within its precincts], two fold [that of ordinary breach of the public peace]; maethl-frith [breach of the peace of a meeting place], two fold. . if the king calls his leod [his people] to him, and any one there do them evil, [let him compensate with] a twofold bot [damages for the injury], and shillings fine to the king. . if the king drink at any one's home, and any one there do any lyswe [evil deed], let him make twofold bot. . if a freeman steal from the king, let him repay nine fold. . if a man slay another in the king's tun [enclosed dwelling premises], let him make bot with shillings. . if any one slay a freeman, shillings to the king, as drihtin beah [payment to a lord in compensation for killing his freeman]. . if the king's ambiht-smith [smith or carpenter] or laad-rine [man who walks before the king or guide or escort], slay a man, let him pay a half wergeld. . [offenses against anyone or any place under] the king's mund byrd [protection or patronage], shillings fine . if a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [fine] and all the chattels [necessary to pay the fine]. (chattels was a variant of "cattle" and was usually a beast, though it could mean any personal property.) . if a man lie with the one of the king's female servants, let him pay a bot of shillings. . if she be a corn-grinding slave, let him pay a bot of shillings. the third [class of servant] shillings. . let the king's fedesl [tenant or boarder] be paid for with shillings. . if a man slay another in an eorl's tun [premises], let [him] make bot with shillings. . if a man lie with an eorl's birele [female cupbearer], let him make bot with shillings. . [offenses against a person or place under] a ceorl's mund byrd [protection], shillings. . if a man lie with a ceorl's birele [female cupbearer], let him make bot with shillings; with a slave of the second [class], scaetts; with one of the third, scaetts. . if any one be the first to invade a man's tun [premises], let him make bot with shillings; let him who follows, with shillings; after, each, a shilling. . if a man furnish weapons to another where there is a quarrel, though no injury results, let him make bot with shillings. . if a weg-reaf [highway robbery] be done [with weapons furnished by another], let him [the man who provided the weapons] make bot with shillings. . if the man be slain, let him [the man who provided the weapons] make bot with shillings. . if a [free] man slay another, let him make bot with a half wergeld of shillings. . if a man slay another, at the open grave let him pay shillings, and pay the whole wergeld within days. . if the slayer departs from the land, let his kindred pay a half leod. . if any one bind a freeman, let him make bot with shillings. . if any one slay a ceorl's half-aeta [loaf or bread eater; domestic or menial servant], let him make bot with shillings. . if [anyone] slay a laet [semi-slave] of the highest class, let him pay shillings; of the second class, let him pay shillings; of the third class, let him pay shillings. . if a freeman commit edor-breach [breaking through the fenced enclosure and forcibly entering a ceorl's dwelling], let him make bot with shillings. . if any one take property from a dwelling, let him pay a three-fold bot. . if a freeman goes with hostile intent through an edor [the fence enclosing a dwelling], let him make bot with shillings. . if [in so doing] a man slay another, let him pay with his own money, and with any sound property whatever. . if a freeman lie with a freeman's wife, let him pay for it with his wergeld, and obtain another wife with his own money, and bring her to the other [man's dwelling]. . if any one thrusts through the riht-ham-scyld [legal means of protecting one's home; the perimeter of a homestead], let him adequately compensate. . if there be feax-fang [seizing someone by the hair], let there be sceatts for bot. . if there be an exposure of the bone, let bot be made with shillings. . if there be a cutting of the bone, let bot be made with shillings. . if the outer hion [outer membrane covering the brain] be broken, let bot be made with shillings. . if it be both [outer and inner membranes covering the brain], let bot be made with shillings. . if a shoulder be lamed, let bot be made with shillings. . if an ear be struck off, let bot be made with shillings. . if the other ear hear not, let bot be made with shillings. . if an ear be pierced, let bot be made with shillings. . if an ear be mutilated, let bot be made with shillings. . if an eye be [struck] out, let bot be made with shillings. . if the mouth or an eye be injured, let bot be made with shillings. . if the nose be pierced, let bot be made with shillings. . if it be one ala, let bot be made with shillings. . if both be pierced, let bot be made with shillings. . if the nose be otherwise mutilated, for each [cut, let] bot be made with shillings. . if it be pierced, let bot be made with shillings. . let him who breaks the jaw bone pay for it with shillings. . for each of the four front teeth, shillings; for the tooth which stands next to them shillings; for that which stands next to that, shillings; and then afterwards, for each a shilling. . if the speech be injured, shillings. if the collar bone be broken, let bot be made with shillings. . let him who stabs [another] through an arm, make bot with shillings. if an arm be broken, let him make bot with shillings. . if a thumb be struck off, shillings. if a thumb nail be off, let bot be made with shillings. if the shooting [fore] finger be struck off, let bot be made with shillings. if the middle finger be struck off, let bot be made with shillings. if the gold [ring] finger be struck off, let bot be made with shillings. if the little finger be struck off, let bot be made with shillings. . for every nail, a shilling. . for the smallest disfigurement of the face, shillings; and for the greater, shillings. . if any one strike another with his fist on the nose, shillings. . if there be a bruise [on the nose], a shilling; if he receive a right hand bruise [from protecting his face with his arm], let him [the striker] pay a shilling. . if the bruise [on the arm] be black in a part not covered by the clothes, let bot be made with scaetts. . if it be covered under the clothes, let bot for each be made with scaetts. . if the belly be wounded, let bot be made with shillings; if it be pierced through, let bot be made with shillings. . if any one needs medical attention, let bot be made with shillings. . if any one be cearwund [badly wounded], let bot be made with shillings. . if any one destroy [another's] organ of generation [penis], let him pay him with wergelds: if he pierce it through, let him make bot with shillings; if it be pierced within, let him make bot with shillings. . if a thigh be broken, let bot be made with shillings; if the man become halt [lame], then friends must arbitrate. . if a rib be broken, let bot be made with shillings. . if [the skin of] a thigh be pierced through, for each stab shillings; if [the wound be] above an inch [deep], a shilling; for two inches, ; above three, shillings. . if a sinew be wounded, let bot be made with shillings. . if a foot be cut off, let shillings be paid. . if a great toe be cut off, let shillings be paid. . for each of the other toes, let one half that for the corresponding finger be paid. . if the nail of a great toe be cut off, scaetts for bot; for each of the others, make bot with scaetts. . if a freewoman loc-bore [with long hair] commit any leswe [evil deed], let her make a bot of shillings. . let maiden bot [compensation for injury to an unmarried woman] be as that of a freeman. . for [breach of] the mund [protection] of a widow of the best class, of an eorl's degree, let the bot be shillings; of the second, shillings; of the third, shillings; of the fourth, shillings. . if a man carry off a widow not under his own protection by right, let the mund be twofold. . if a man buy a maiden as wife, let the bargain stand, if it be without fraud; but if there be fraud, let him bring her home again, and let his property be restored to him. . if she bear a live child, she shall have half the property, if the husband die first. . if she wish to go away with her children, she shall have half the property. . if the husband wish to keep them [the children], [she shall have the same portion] as one child. . if she bear no child, her paternal kindred shall have the fioh [her money and chattels] and the morgen-gyfe [morning gift: a gift made to the bride by her husband on the morning following the consummation of the marriage]. . if a man carry off a maiden by force, let him pay shillings to her controller, and afterwards buy the consent of the controller [to the marriage]. . if she be betrothed to another man and money has changed hands, let him [who carried her off] make bot [to the intended bridegroom] with shillings. . if restitution [of the girl] is made, bot of shillings; and shillings to the king. . if a man lie with an esne's [slave's]wife, her husband still living, let him make twofold bot. . if one esne [slave] slay another unoffending, let him pay for him at his full worth. . if an esne's [slave's] eye and foot be struck out or off, let him be paid for at his full worth. . if any one bind another man's esne [slave], let him make bot with shillings. . let [compensation for] weg-reaf [highway robbery] of a theow [slave] be shillings. . if a theow steal, let him [the owner] make twofold bot [twice the value of the stolen goods]." judicial procedure the king and his freemen would hear and decide cases of wrongful behavior such as breach of the peace. punishment would be given to the offender by the community. the bots, wers, and wites were high and often could not be paid. if a man could not or would not pay, he could be outlawed, to be killed by anyone with impunity or punished by hanging; beheading; burning; drowning; stoning; precipitation from a cliff; loss of ears, nose, upper-lip, hands and feet; castration; flogging; or sale into slavery. there were occasional meetings of "hundreds", which were households, to settle widespread disputes. the chief officer was "hundreder" or "constable". he was responsible for keeping the peace of the hundred. the concept of a wrong to a person or his kindred is still primary and that of offense to the community secondary. very slowly did the concept emerge that that members of the community must be content with legal remedies and must not seek private vengeance and that public offenses cannot be altered by private agreement. the druid priests decided all disputes of the celts. chapter the times: - the country was inhabited by anglo-saxons. the french called it "angleterre", which means the angle or end of the earth. it was called "angle land", which later became "england". a community was usually an extended family. its members lived a village in which a stone church was the most prominent building. they lived in one-room huts with walls and roofs made of wood, mud, and straw. hangings covered the cracks in the walls to keep the wind out. smoke from a fire in the middle of the room filtered out of cracks in the roof. grain was ground at home by rotating by hand one stone disk on another stone disk. some villages had a mill powered by the flow of water or by horses. all freeholders had the duty of watch [at night] and ward [during the day], of following the hue and cry to chase an offender, and of taking the oath of peace. these three duties were constant until . farmland surrounded the villages and was farmed by the community as a whole under the direction of a lord. there was silver, copper, iron, tin, gold, and various types of stones from remote lead mines and quarries in the nation. silver pennies replaced the smaller scaetts. freemen paid "scot" and bore "lot" according to their means for local purposes. offa, the strongest of the saxon kings, minted high-quality silver pennies. he traded woolen coats for lava grindstones with emperor charlemagne, who used a silver denarius coin. there were denarii to the solidus and soldi to the pound of silver. these denominations were taken by england as pennies to the shilling and shillings to the pound. the pound sign, an "l" with a hash mark derived from the word libra, which meant weighing scales. everyone in the village went to church on sunday and brought gifts such as grain to the priest. later, contributions in the form of money became customary, and then expected. these "tithes" were spent for church repair, the clergy, and poor and needy laborers. the church fixed the amount to be one-tenth, but local custom determined the amount. there was also church-scot: a payment to the clergy in lieu of the first fruits of the land. there were also offerings, originally voluntary but afterwards compulsory, for sacraments. the priest was the chaplain of a landlord and his parish was coextensive with that landlord's holding and could include one to several villages. the priest and other men who helped him, lived in the church building. some churches had lead roofs and iron hinges, latches, and locks on their doors. the land underneath had been given to the church by former kings and persons who wanted the church to say prayers to help their souls go from purgatory to heaven and who also selected the first priest. the priest conducted christianized easter ceremonies in the spring and (christ's mass) ceremonies in winter in place of the pagan yuletide festivities. burning incense took the place of pagan burnt animal offerings, which were accompanied by incense to disguise the odor of burning flesh. holy water replaced haunted wells and streams. christian incantations replaced sorcerer's spells. nuns assisted priests in celebrating mass and administering the sacraments. they alone consecrated new nuns. vestry meetings were community meetings held for church purposes. the people said their prayers in english, and the priest conducted the services in english. a person joined his hands in prayer as if to offer them for binding together in submission. the church baptized babies and officiated or gave blessings at marriage ceremonies. it also said prayers for the dying, gave them funerals, and buried them. there were burial service fees, candle dues, and plough alms. a piece of stone with the dead person's name marked his grave. it was thought that putting the name on the grave would assist identification of that person for being taken to heaven. the church heard the last wish or will of the person dying concerning who he wanted to have his property. the church taught that it was not necessary to bury possessions with the deceased. the church taught boys and girls. every man carried a horn slung on his shoulder as he went about his work so that he could at once send out a warning to his fellow villagers or call them in chasing a thief or other offender. the forests were full of outlaws, so strangers who did not blow a horn to announce themselves were presumed to be fugitive offenders who could be shot on sight with impunity. an eorl could call upon the ceorl farmers for about forty days to fight off an invading group. there were several kingdoms, whose boundaries kept changing due to warfare, which was a sin according to the church. they were each governed by a king and witan of wise men who met at a witanegemot, which was usually held three times a year, mostly on great church festivals and at the end of the harvest. the king and witan chose the witan's members of bishops, eorldormen, and thegns [landholding farmers]. the king and hereditary claims played a major part in the selection of the eorldormen, who were the highest military leaders and often of the royal family. they were also chief magistrates of large jurisdictional areas of land. the witan included officers of the king's household and perhaps other of his retinue. there was little distinction then between his gesith, fighting men, guards, household companions, dependents, and servants. the king was sometimes accompanied by his wife and sons at the witanagemot. a king was selected by the witan according to his worthiness, usually from among the royal family, and could be deposed by it. the witan and king decided on laws, taxes, and transfers of land. they made determinations of war and peace and directed the army and the fleet. the king wore a crown or royal helmet. he extended certain protections by the king's peace. he could erect castles and bridges and could provide a special protection to strangers. a king had not only a wergeld to be paid to his family if he were killed, but a "cynebot" of equal amount that would be paid to his kingdom's people. a king's household had a chamberlain for the royal bedchamber, a marshall to oversee the horses and military equipment, a steward as head of household, and a cupbearer. the king had income from fines for breach of his peace; fines and forfeitures from courts dealing with criminal and civil cases; salvage from ship wrecks; treasure trove [assets hidden or buried in times of war]; treasures of the earth such as gold and silver; mines; saltworks; tolls and other dues of markets, ports, and the routes by land and by river generally; heriot from heirs of his special dependents for possession of land (usually in kind, principally in horses and weapons). he also had rights of purveyance [hospitality and maintenance when traveling]. the king had private lands, which he could dispose of by his will. he also had crown lands, which belonged to his office and could not be alienated without consent of the witan. crown lands often included palaces and their appendant farms, and burhs. it was a queen's duty to run the royal estate. also, a queen could possess, manage, and dispose of lands in her name. violent queens waged wars. kingdoms were often allied by marriage between their royal families. there were also royal marriages to royalty on the continent. the houses of the wealthy had ornamented silk hangings on the walls. some had fine white ox horn shaved so thin they were transparent for windows. brightly colored drapery, often purple, and fly nets surrounded their beds, which were covered with the fur of animals. they slept in bed clothes on pillows stuffed with straw. tables plated with silver and gems held silver candlesticks, gold and silver goblets and cups, and lamps of gold, silver, or glass. they used silver mirrors and silver writing pens. there were covered seats, benches, and footstools with the head and feet of animals at their extremities. they ate from a table covered with a cloth. servants brought in food on spits, from which they ate. food was boiled, broiled, or baked. the wealthy ate wheat bread and others ate barley bread. ale made from barley was passed around in a cup. mead made from honey was also drunk. men wore long-sleeved wool and linen garments reaching almost to the knee, around which they wore a belt tied in a knot. men often wore a gold ring on the fourth finger of the right hand. leather shoes were fastened with leather thongs around the ankle. their hair was parted in the middle and combed down each side in waving ringlets. the beard was parted in the middle of the chin, so that it ended in two points. the clergy did not wear beards. great men wore gold-embroidered clothes, gilt buckles and brooches, and drank from drinking horns mounted in silver gilt or in gold. well- to-do women wore brightly colored robes with waist bands, headbands, necklaces, gem bracelets, and rings. their long hair was in ringlets and they put rouge on their cheeks. they had beads, pins, needles, tweezers of bronze, and workboxes of bronze, some highly ornamented. they were often doing needlework. silk was affordable only by the wealthy. most families kept a pig and pork was the primary meat. there were also sheep, goats, cows, deer, hare, and fowl. fowl was obtained by fowlers who trapped them. the inland waters yielded eels, salmon, and trout. in the fall, meat was salted to preserve it for winter meals. there were orchards growing figs, nuts, grapes, almonds, pears, and apples. also produced were beans, lentils, onions, eggs, cheese, and butter. pepper and cinnamon were imported. fishing from the sea yielded herrings, sturgeon, porpoise, oysters, crabs, and other fish. sometimes a whale was driven into an inlet by a group of boats. whale skins were used to make ropes. the roads were not much more than trails. they were often so narrow that two pack horses could hardly pass each other. the pack horses each carried two bales or two baskets slung over their backs, which balanced each other. the soft soil was compacted into a deep ditch which rains, floods, and tides, if near the sea, soon turned into a river. traveling a far distance was unsafe as there were robbers on the roads. traveling strangers were distrusted. it was usual to wash one's feet in a hot tub after traveling and to dry them with a rough wool cloth. there were superstitions about the content of dreams, the events of the moon, and the flights and voices of birds were often seen as signs or omens of future events. herbal mixtures were drunk for sickness and maladies. from the witch hazel plant was made a mild alcoholic astringent, which was probably used to clean cuts and sooth abrasions. in the peaceful latter part of the s, theodore, who had been a monk in rome, was appointed archbishop and visited all the island speaking about the right rule of life and ordaining bishops to oversee the priests. each kingdom was split up into dioceses each with one bishop. thereafter, bishops were selected by the king and his witan, usually after consulting the clergy and even the people of the diocese. the bishops came to be the most permanent element of society. they had their sees in villages or rural monasteries. the bishops came to have the same wergeld as an eorldorman: s., which was the price of about oxen. a priest had the wergeld as a landholding farmer [thegn], or s. the bishops spoke latin, but the priests of the local parishes spoke english. theodore was the first archbishop whom all the english church obeyed. he taught sacred and secular literature, the books of holy writ, ecclesiastical poetry, astronomy, arithmetic, and sacred music. theodore discouraged slavery by denying christian burial to the kidnapper and forbidding the sale of children over the age of seven. a slave became entitled to two loaves a day and to his holydays. a slave was allowed to buy his or his children's freedom. in , theodore started annual national ecclesiastical assemblies, for instance for the witnessing of important actions. the bishops, some abbots, the king, and the eorldormen were usually present. from them the people learned the benefit of common national action. there were two archbishops: one of canterbury in the south and one of york in the north. they governed the bishops and could meet with them to issue canons that would be equally valid all over the land. a bishop's house contained some clerks, priests, monks, and nun and was a retreat for the weary missionary and a school for the young. the bishop had a deacon who acted as a secretary and companion in travel, and sometimes as an interpreter. ink was made from the outer husks of walnuts steeped in vinegar. the learned ecclesiastical life flourished in monastic communities, in which both monks and nuns lived. hilda, a noble's daughter, became the first nun in northumbria and abbess of one of its monasteries. there she taught justice, piety, chastity, peace, and charity. several monks taught there later became bishops. kings and princes often asked her advice. many abbesses came to run monastic communities; they were from royal families. women, especially from royal families, fled to monasteries to obtain shelter from unwanted marriage or to avoid their husbands. kings and eorldormen retired to them. danish vikings made several invasions in the s, so the witan imposed a danegeld tax on land that was assessed on everyone every ten to twenty years for maintaining forces sufficient to clear the british seas of danish pirates or to buy off the ravages of the danish it was s. and later s. upon every hide of land, where a hide was probably the amount of land which could support a family or household for a year or as much land as could be tilled annually by a single plough. it was stored in a strong box under the king's bed. king alfred the great, who had lived for awhile in rome, unified the country to defeat the invaders. he established fortifications called "burhs", usually on hill tops or other strategic locations on the borders to control the main road and river routes into his realm. the burhs were seminal towns. they were typically walled enclosures with towers and an outer ditch and mound, instead of the hedge or fence enclosure of a tun. inside were several wooden thatched huts and a couple of churches, which were lit by earthen oil lamps. the populace met at burhgemotes. the land area protected by each burh became known as a "shire", which means a share of a larger whole. the shire or local landowners were responsible for repairing the burh fortifications. there were about thirty shires. alfred gathered together fighting men who were at his disposal, which included eorldormen with their hearthbands (retinues of men each of whom had chosen to swear to fight to the death for their eorldorman, and some of whom were of high rank), the king's thegns, shire thegns (local landholding farmers, who were required to bring fighting equipment such as swords, helmets, chain mail, and horses), and ordinary freemen, i.e. ceorls (who carried food, dug fortifications, and sometimes fought). since the king was compelled to call out the whole population to arms, the distinction between the king's thegns from other landholders disappeared. some great lords organized men under them, whom they provisioned. these vassals took a personal oath to their lord "on condition that he keep me as i am willing to deserve, and fulfill all that was agreed on when i became his man, and chose his will as mine." alfred had a small navy of longships with oars to fight the viking longships. alfred divided his army into two parts so that one half of the men were fighting while the other half was at home sowing and harvesting for those fighting. thus, any small-scale independent farming was supplanted by the open-field system, cultivation of common land, more large private estates headed by a lord, and a more stratified society in which the king and important families more powerful and the peasants more curtailed. the witan became mere witnesses. many free coerls of the older days became bonded. the village community tended to become a large private estate headed by a lord. but the lord does not have the power to encroach upon the rights of common that exist within the community. in , a treaty between alfred and the vikings divided the country along the war front and made the wergeld of every free farmer, whether english or viking, s. men of higher rank were given a wergeld of / marks of pure gold. a mark was probably a viking denomination and a mark of gold was equal to nine marks of silver in later times and probably in this time. the word "earl" replaced the word "eorldormen" and the word "thegn" replaced the word "aetheling" after the danish settlement. the ironed pleats of viking clothing indicated a high status of the wearer. the vikings brought combs and the practice of regular hair-combing to england. king alfred gave land with jurisdictional powers within its boundaries such as the following: "this is the bequest which king alfred make unequivocally to shaftesbury, to the praise of god and st. mary and all the saints of god, for the benefit of my soul, namely a hundred hides as they stand with their produce and their men, and my daughter aethelgifu to the convent along with the inheritance, since she took the veil on account of bad health; and the jurisdiction to the convent, which i myself possessed, namely obstruction and attacks on a man's house and breach of protection. and the estates which i have granted to the foundation are hides at donhead and compton, hides at handley and gussage hides at tarrant, hides at iwerve and hides at fontmell. the witnesses of this are edward my son and archbishop aethelred and bishop ealhferth and bishop aethelhead and earl wulfhere and earl eadwulf and earl cuthred and abbot tunberht and milred my thegn and aethelwulf and osric and brihtulf and cyma. if anyone alters this, he shall have the curse of god and st. mary and all the saints of god forever to all eternity. amen." sons usually succeeded their fathers on the same land as shown by this lifetime lease: "bishop denewulf and the community at winchester lease to alfred for his lifetime hides of land at alresford, in accordance with the lease which bishop tunbriht had granted to his parents and which had run out, on condition that he renders every year at the autumnal equinox three pounds as rent, and church dues, and the work connected with church dues; and when the need arises, his men shall be ready both for harvesting and hunting; and after his death the property shall pass undisputed to st. peter's. these are the signatures of the councilors and of the members of the community who gave their consent, namely ..." alfred invented a graduated candle with spaces indicating one hour of burning, which could be used as a clock. he used a ventilated cow's horn to put around the top of the candle to prevent its blowing out, and then devised a wooden lantern with a horn window. he described the world as like a yolk in the middle of an egg whose shell moves around it. this agreed with the position of ptolemy claudius of alexandria, who showed the curvature of the earth from north to south by observing that the polar star was higher in the north and lower in the south. that it was curved from east to west followed from the observation that two clocks placed one west and one east would record a different time for the same eclipse of the moon. alfred wrote poems on the worthiness of wisdom and knowledge in preference to material pleasures, pride, and fame, in dealing with life's sorrow and strife. his observations on human nature and his proverbs include: . as one sows, so will he mow. . every man's doom [judgment] returns to his door. . he who will not learn while young, will repent of it when old. . weal [prosperity] without wisdom is worthless. . though a man had acres sown with red gold, and the gold grew like grass, yet he is not a whit the worthier unless he gain friends for himself. . gold is but a stone unless a wise man has it. . it's hard to row against the sea flood; so it is against misfortune. . he who toils in his youth to win wealth, so that he may enjoy ease in his old age, has well bestowed his toil. . many a man loses his soul through silver. . wealth may pass away, but wisdom will remain, and no man may perish who has it for his comrade. . don't choose a wife for her beauty nor for wealth, but study her disposition. . many an apple is bright without and bitter within. . don't believe the man of many words. . with a few words a wise man can compass much. . make friends at market, and at church, with poor and with rich. . though one man wielded all the world, and all the joy that dwells therein, he could not therewith keep his life. . don't chide with a fool. . a fool's bolt is soon shot. . if you have a child, teach it men's manners while it is little. if you let him have his own will, he will cause you much sorrow when he comes of age. . he who spares the rod and lets a young child rule, shall rue it when the child grows old. . either drinking or not drinking is, with wisdom, good. . relatives often quarrel together. . the barkless dog bites ill. . be wise of word and wary of speech, then all shall love you. . we may outride, but not outwit, the old man. . be not so mad as to tell your friend all your thoughts. . if you and your friend fall out, then your enemy will know what your friend knew before. . don't choose a deceitful man as a friend, for he will do you harm. . the false one will betray you when you least expect it. . don't choose a scornful false friend, for he will steal your goods and deny the theft. . take to yourself a steadfast man who is wise in word and deed; he will prove a true friend in need. to restore education and religion, alfred disseminated the anglo- saxon chronicles; the venerable bede's ecclesiastical history of the english nation; the "consolidation of philosophy" by roman philosopher boethius, which related the use of adversity to develop the soul, and described the goodness of god and how the highest happiness comes from spiritual values and the soul, which are eternal, rather than from material or earthly pursuits, which are temporal; and pope gregory's pastoral care, which he had translated into english and was the fundamental book on the duty of a bishop, which included a duty to teach laymen; and orosius' history of the world, which he had translated into english. alfred's advice to pastors was to live as they had been taught from books and to teach this manner of life to others. to be avoided was pride, the mind's deception of seeking glory in the name of doing good works, and the corruption of high office. bede was england's first scholar, first theologian, and first historian. he wrote poetry, theological books, homilies, and textbooks on grammar, rhetoric [public speaking and debating], arithmetic, and astronomy. he adhered to the doctrine that death entered the world by the sin of adam, the first man. he began the practice of dating years from the birth of christ and believed that the earth was round. over the earth was a fiery spherical firmament. above this were the waters of the heavens. above this were the upper heavens, which contained the angels and was tempered with ice. he declared that comets portend downfalls of kingdoms, pestilence, war, winds, or heat. this reflected the church's view that a comet was a ball of fire flung from the right hand of an angry god as a warning to mankind, usually for disbelief. storms were begun by the devil. a famous poem, the oral legend of beowulf, a hero who led his men into adventures and performed great feats and fought monsters and dragons, was put into writing with a christian theme. in it, loyalty to one's lord is a paramount virtue. also available in writing was the story of king arthur's twelve victorious battles against the pagan saxons, authored by nennius. there were professional story tellers attached to great men. others wandered from court to court, receiving gifts for their story telling. men usually told oral legends of their own feats and those of their ancestors after supper. alfred had monasteries rebuilt with learned and moral men heading them. he built a nunnery which was headed by his daughter as prioress. he built a strong wall with four gates around london, which he had taken into his control. he appointed his son-in-law, who was one of his eorldormen, to be alderman [older man] to govern london and to be the shire's earl. a later king built a palace in london, although winchester was still the royal capital town. when the king traveled, he and his retinue were fed by the local people at their expense. after alfred's death, his daughter aethelflared ruled the country for seven years. she had more fortified burhs built and led soldiers to victories. burhs grew into towns and some towns into boroughs by obtaining a charter from the king. their citizens were landholding freemen called."burgesses". a borough typically was a place of refuge with earth works, and perhaps a garrrison; it had a market place in which men could buy cattle and other goods and have the sale attested by official witnesses and toll was taken from them; and it had a meeting place at which a court was held. under the royalty were the nobles. an earl headed each shire as representative of the king. the term "earl" came to denote an office instead of a nobleman. he led the array of his shire to do battle if the shire was attacked. he executed all royal commands. an earl received grants of land and could claim hospitality and maintenance for himself, his officers, and his servants. he collected a third of the revenues derived from tolls and duties levied in the boroughs of his shire. the office tended to be hereditary. royal representatives called "reeves" started to assist them. the reeve took security from every person for the maintenance of the public peace. he also tracked cattle thieves, brought suspects to court, gave judgments according to the doom books, and delivered offenders to punishment. under the earls were the thegns. by service to the king, it was possible for a coerl to rise to become a thegn and to be given land by the king. other thegns performed functions of magistrates. a thegn was later identified as a person with five hides of land, a kitchen, a church, a bell house, a judicial place at the burhgemote [a right of magistracy], and an appointment in the king's hall. he was bound to service in war by virtue of his landholding instead of by his relationship to the king. nobility was now a territorial attribute, rather than one of birth. the wergeld of a thegn was s. when that of a ceorl or ordinary freeman was s. the wergeld of an earl or bishop was four times that of a thegn: s. the wergeld of a king or archbishop was six times that of a thegn: s. the higher a man's wergeld, the higher was his legal status in the scale of punishment, giving credible evidence, and participation in legal proceedings. the sokemen were freemen who had inherited their own land, chose their own lord, and attended and were subject to their lord's court. that is, their lord has sake [sac] and soke [soc] jurisdiction over them - the right to hold a court and to receive the profits of jurisdiction. a ceorl typically had a single hide of land. a smallholder rented land of about acres from a landlord, which he paid by doing work on the lord's demesne [land held by the one lowest in the scale of holding who has a general right of doing with it what he pleases] land, paying money rent, or paying a food rent such as in eggs or chickens. smallholders made up about two fifths of the population. a cottager had one to five acres of land and depended on others for his living. among these were shepherds, ploughmen, swineherds, and blacksmiths. they also participated in the agricultural work, especially at harvest time. it was possible for a thegn to become an earl, probably by the possession of forty hides. he might even acquire enough land to qualify him for the witan. women could be present at the witanagemot and shiregemote [meeting of the people of the shire]. they could sue and be sued in the courts. they could independently inherit, possess, and dispose of property. a wife's inheritance was her own and under no control of her husband. marriage required the consent of the lady and her friends. the man also had to arrange for the foster lean, that is, remuneration for rearing and support of expected children. he also declared the amount of money or land he would give the lady for her consent, that is, the morgengift, and what he would bequeath her in case of his death. it was given to her on the morning after the wedding night. the family of the bride was paid a "mund" for transferring the rightful protection they possessed over her to the family of the husband. if the husband died and his kindred did not accept the terms sanctioned by law, her kindred could repurchase the rightful protection. if she remarried within a year of his death, she had to forfeit the morgengift and his nearest kin received the lands and possessions she had. the word for man was "waepnedmenn" or weaponed person. a woman was "wifmenn" or wife person, with "wif" being derived from the word for weaving. great men and monasteries had millers, smiths, carpenters, architects, agriculturists, fishermen, weavers, embroiders, dyers, and illuminators. for entertainment, minstrels sang ballads about heroes or bible stories, harpers played, jesters joked, and tumblers threw and caught balls and knives. there was gambling, dice games, and chasing deer with hounds. fraternal guilds were established for mutual advantage and protection. a guild imposed fines for any injury of one member by another member. it assisted in paying any murder fine imposed on a member. it avenged the murder of a member and abided by the consequences. it buried its members and purchased masses for his soul. mercantile guilds in seaports carried out commercial speculations not possible by the capital of only one person. there were some ale houses, probably part of certain dwellings. it was usual for a dying man to confess his sins to a priest. for the sake of his soul, the priest often suggested the man give some of his chattel to the church, the poor, or other pious uses. by the s, the words of a dying man giving chattel for the sake of his soul were expected to be carried out. later is the "post obit gift" by which a man gives land to the church, with the king's consent, but enjoys the land during his lifetime by stating in writing "i give certain land after my death" in a special "book". the church takes possession of the land after his death. he may make a conditional such gift, leaving the land to his wife for her life with a rent paid to the church and the church taking possession of the land on her death. these two procedures coalesce into one written will used in the s, s, and s. this will also includes distributions to family and kinsmen and perhaps to creditors. if the will is made by the very great people: kings, queens, king's sons, bishops, earldormen, and king's thegns, it requires the king's consent, which may be bought by a large heriot. and a bishop usually sets his cross to the will, denouncing any who infringe it to the torments of hell. the dead man's parish church is paid a mortuary when he is buried. the law the special authority of the king and his peace gradually superseded the customary jurisdiction of the local courts as to preservation of the peace and punishment of offenses. all criminal offenses became breaches of the king's peace and were deemed acts of personal disobedience and made an offender the king's enemy. this notion developed from the special sanctity of the king's house and his special protection of his attendants and servants. an offender made fines to the king for breach of his peace and fines and forfeitures to him from court decisions in criminal and civil cases. offenses especially dealt with in various parts of the anglo-saxon laws were treason, homicide, wounding, assault, and theft. treason to one's lord, especially to the king, was punishable by death. compassing or imagining the king's death was treason. king alfred collected regulations from various church synods and commanded that many of them which english forefathers had observed to be written out - those which appealed to him; and many of those that did not appeal to him he rejected, with the consent of his witan or commanded them to be observed in a different way. "these are the regulations which the almighty god himself spoke to moses and ordered him to observe and subsequently the only-born son of the lord, our god, that is the savior christ confirmed ...": . do not love other strange gods before me. . do not speak my name idly, for you will not be guiltless with me if you idly speak my name. . remember to hallow the rest-day. work for yourselves six days, and on the seventh day rest yourselves. for in six days, god the father made the heavens and the earth, the seas and all creatures that are in them, and rested himself on the seventh day, and therefore god has sanctified it. . honour your father and your mother that god gave you so that you may be the longer living on earth. . do not kill. . do not lie in sexual union secretly. . do not steal. . do not speak false evidence. . do not wish for your neighbour's property unrightfully. . do not make yourselves golden or silver gods. . if anyone buy a christian slave, let him serve for six years and on the seventh let him be free without payment. with such clothes as he entered into service, let him leave with. if he has a wife of his own providing, let her leave with him. if the master provided him with a wife, both she and her children shall belong to the master. if the slave then says `i do not want to leave my master or my wife or my child or my property', let his master bring him to the door of the temple and perforate his ear with an awl as a sign that he shall ever afterwards be a slave. . though someone sell his daughter into slavery do not let her be a slave entirely as are other maid servants. he has not the right to sell her abroad among foreign people. but if he who bought her does not care for her, let her be free among a foreign people. but if he i.e. the purchaser allows his son to cohabit with her, give her the morning gift and ensure that she has clothing and that she has the value of her maidenhood, that is the dowry - let him give her that. if he does none of those things for her, then she shall be free. . the person who slays another deliberately shall suffer death. he that has killed another in self defense or involuntarily or unintentionally, as god delivered him i.e. the victim into his hands and providing he i.e. the killer did not set a trap for him - in that case let him be worthy of his life, and of settling by customary compensation, if he should seek asylum. if however anyone deliberately and intentionally kills his neighbour treacherously, pluck him from my altar so that he should suffer death. . he that attacks his father or his mother shall suffer death. . he that abducts a freeman and sell him, and it is proved so that he cannot absolve himself, let him suffer death. he that curses his father or his mother, let him suffer death. . if someone attacks his neighbour with a stone or with his fist, but he i.e. the victim can still get about with the aid of a staff, let him i.e. the aggressor provide him with a doctor and do his i.e. the victim's work for him for as long as he i.e. the victim cannot himself. . he that attacks his own non-free servant or his maidservant, and they are not dead as a result of the attack but live two or three days, he i.e. the aggressor shall not be so entirely guilty, because it was his own property he damaged. but if the slave be dead the same day, then the guilt rests on him i.e. the aggressor. . if anyone in the course of a dispute injure a pregnant woman, let him make compensation for the hurt as judges decide in his case. if she be dead, let him give life for life. . if anyone put out another's eye, let him give his own for it. tooth for tooth. hand for hand. foot for foot. burn for burn. wound for wound. bruise for bruise. . if anyone strike the eye of his slave or maidservant out and so makes them one-eyed, let him free them for that. if he strike out a tooth, let him do the same. . if an ox gore a man or woman so that they are dead, it it be stoned to death and do not let the flesh be eaten. the owner shall not be liable if the ox was butting two days before that or even three and the owner did not know of it. but if he knew of it and would not shut it i.e. the animal in, and then it killed a man or woman, let it be stoned to death and let the master be killed or made to pay as the witan consider proper. if it gore a son or daughter, let the same penalty apply. but if it gore a slave or serving-woman, let the owner give shillings of silver and let the ox be stoned to death. . if anyone dig a well or open up a closed one and does not close it up again, let him pay for whatever cattle fall in; but let him have the dead animal for his own use. . if an ox wound another man's ox so it is dead, let them sell the live ox and share the proceeds, and also the flesh of the dead ox. but if the owner knew the ox was butting and would not restrain it, let him hand over the other i.e. live ox for it but let him have all the flesh of the dead ox for his own use. . if anyone steal another man's ox and kill or sell it, let him give two oxen in restitution. and four sheep for one stolen. if he i.e. the thief does not have anything to give in restitution, let him be sold himself to raise the money. . if a thief break into a man's house by night and is killed there, he i.e. the house-owner shall not be guilty of manslaughter. but if he i.e. the house-owner does this after sunrise, he is guilty of manslaughter, and shall himself perish, unless he acted in self-defence. if there is found in the possession of the living thief things he had already stolen, let him make restitution for it two-fold. . if anyone damage another man's vineyard or his crops or any part of his estate, let him pay compensation according to how it is assessed. . if a fire is lit in order to burn rubbish, let him who started the fire pay compensation for any consequent damage. . if anyone entrusts any possession to his friend and the friend appropriates it for himself, let him i.e. the friend clear himself and prove that he committed no fraud in the matter. if it was livestock, and he says that raiders took it, or it perished of itself, and if he has proof, he need not pay up. but if he has no proof, and the original owner does not believe him, let him make an oath to clear himself. . if anyone seduce an uncommitted woman and sleeps with her, let him pay for her and take her then as his wife. but if the woman's father is unwilling to let her go, then let the seducer hand over money in proportion to her dowry. . the women who are accustomed to harbour enchanters and wizards and witches - do not allow them to live. . and he that has intercourse with animals shall suffer death. . and he that sacrifices to idols, rather than to god alone, let him suffer death. . do not harass visitors from abroad and foreigners, for you were formerly strangers on the land of the egyptians. . do not harm widows and step-children, neither do them any injury. if you do otherwise, they will call upon me and i will listen to them, and then i will slay you with my sword and i will ensure that your wives shall be widows and your children orphans. . if you hand over money as a loan to your comrade who wishes to live with you, do not coerce him like an underling and do not oppress him with the interest. . if someone has only a single garment to cover and clothe himself with and he hands it over as a pledge, let it be returned before the sun sets. if you do not do so then he will call unto me, and i will listen to him because i am very clement. . do not reproach you lord, nor curse the lord of the people. . your tithe i.e. tenth-part of profit and your first-fruits of moving animals and growing crops, offer to god. . all the flesh that wild animals leave, do not eat it but give it to the dogs. . do not bother to give credence to the word of a false man, and do not approve his opinions; do not repeat any of his assertions. . do not join in the false judgment and evil aspirations of the many nor join in their rumours and outcry, against your own conscience, at the incitement of some ignorant person. do not support them. . if the stray cattle of another man come into your possession, though it be the property of your enemy, let him know about it. . judge equably, do not lay down one rule for the rich, another for the poor; do not decide one way for a friend, another for a foe. . always shun falsehood. . never slay a righteous and innocent man. . never accept bribes, for they very often blind the minds of wise men and pervert their words. . do not behave unkindly to foreigners and visitors from abroad; do not harass them with unjust acts. . never swear an oath by heathen gods, nor in any circumstances call upon them. alfred also issued a set of laws to cover the whole country that he derived from laws of various regional kings in england as follows: " . first we insist that there is particular need that each person shall keep his oath and his pledge carefully. if anyone be compelled to give either of these wrongly, either to support treachery to his lord or to provide any unlawful aid, then it is better to forswear than to fulfil. but if he pledge himself to that which it is right for him to fulfil and fails, let him submissively hand over his weapons and his possessions to his friends to keep, and stay forty days in prison in a property of the king. let him undergo there whatever the bishop prescribes as penance, and let his kinsmen feed him if he himself has no food. if he has no kin or has no food, let the king's officer feed him. if one has to compel him to this i.e. to surrender, and otherwise he is unwilling to co-operate - if they have to bind him he shall forfeit his weapons and his possessions. if he is slain while resisting, let him lie uncompensated. if he makes an escape before the time is up, and he is recaptured, let him stay forty days in prison as he would have previously. but if he gets away, let him be banished and excommunicated from all the churches of christ. further, if someone has provided surety for him, let him compensate for the breach of surety as custom require him, and atone for the breach of pledge as his confessor imposes in his case. . if anyone seek out as sanctuary for any offence any of the monastic houses to which the king's revenue applies, or any other exempt community that is worthy of respect he shall have a period of three days of immunity, unless he wants to negotiate before that. if someone harms him during that period, either by assault or by fettering him,, or by a penetrating wound, let the aggressor pay compensation for each of such attacks according to proper practice, both with wergeld and with a fine, and shillings to that community, as compensation for breach of sanctuary, and let his own possessions be forfeit. . if anyone violate the king's surety, let him pay compensation for the original charge as customary law direct, and for the violation of surety with five pounds of the purer pennies. in the case of breach of an archbishop's surety or protection, let him compensate with three pounds. for violation of the surety or protection of another bishop or official [earldorman], let him make compensation with two pounds. . if anyone plot against the king's life, either directly or by harbouring outlaws or indirectly through the agency of his men, let him be liable with his life and with all that he owns. if he desire to prove himself loyal, let him do that by paying a king's wergeld. similar protection we ordain for all ranks, both common and noble [earl]: whoever plots against his master's life shall be liable with his life and with all that he owns - or let him show his loyalty by paying his master's wergeld. . also we appoint to every church that a bishop has consecrated this right of sanctuary: that if a party to a feud run or ride to the church, then no one may drag him forth for seven days. if however anyone does that, then let him be liable at the rate of breach of a king's protection and at the rate of breach of church sanctuary - more if he take more from the site. [and the sanctuary seeker shall be safe] if he can survive hunger, and unless he himself try to fight his way out. if the community have greater need of their church, let them keep him in another building, and let that not have the more doors than the church itself; let the church official ensure that no one give the sanctuary-seeker food during that period. if he himself is willing to hand over his weapons to his foes, let them keep him for days and inform his kin about him. also it shall count as sanctuary if some man seek out a church about any offence that had not previously been revealed, and there confess himself in god's name - let the penalty be half remitted. he that steal on sunday or at yule or at easter or on holy thursday or on the rogation days - for each of those we intend that there should be a double-penalty, as during lent. . if anyone steal something in a church, let him pay a plain compensation and the fine such as they consider appropriate to the plain compensation, and let them strike the hand off with which he did it i.e. the deed. if he wishes to redeem his hand, and they consent to that, let him pay in proportion to his wergeld. . if anyone fights in the king's hall or draw his weapon, and he is seized, let the penalty be at the king's judgement, either death or life, as he is willing to grant him. if he escapes and is captured later, let him pay in proportion to his wergeld, and atone for the offence with wergeld and fine, as he may deserve by his act. . if anyone abducts a nun of a nunnery without the king's or the bishop's leave, let him pay shillings, half to the king, half to the bishop and the church patron who had charge of the nun. if she lives longer than he that abducted her, let her not have any of his estate. if she bears a child, let that not have any more of the estate than the mother. if anyone slay her child let him pay the king the maternal kindred's share; to the paternal kin let him pay their share. . if anyone slay a woman with child, while the child still be within her, let him pay full compensation for the woman and half compensation for the child according to the wergeld of the father's kin. let the fine payable to the king always be shillings, until the corresponding simple compensation rises to shillings. when the simple compensation rises to that level, then let the fine be shillings. formerly there was a defined fine for a gold-thief, and a horse-thief and a bee-thief and many special fines greater than others. now all are alike except for an illegal slayer and that is shillings. . if a man has intercourse with the wife of a shilling wergeld man, let him pay in compensation shillings to the husband. for a shilling wergeld man i.e. husband, let him pay in compensation shillings. for a common man [ceorl] i.e. husband, let him make compensation of shillings. . if someone grabs the breast of a common woman, let him compensate with five shillings. if he throws her to the ground but does not have sexual intercourse with her, let him compensate with shillings. if he has sexual intercourse with her let him compensate with sixty shillings. if some other man had previously lain with her, then let the compensation be half that. if someone accuse her of complicity, let her clear herself with an oath guaranteed by sixty hides of land, or forfeit half the compensation. if this happens to a nobly born woman, let the compensation increase in proportion to the wergeld. . if someone burns or cuts down another person's trees without permission, let him pay over shillings for each substantial tree, and thereafter, no matter how many there are, five pence for each tree, and thirty shillings as a fine. . in the course of their joint work felling trees, if someone is killed by accident, let the tree involved be given to his kin, and let them remove it off the property within days; otherwise let him possess it that owns the forest. . if someone is born dumb or deaf, so that he can neither deny or confess his sins, let the father make compensation for his misdeeds. . if someone fights or draws his weapon in the presence of an archbishop, let him make compensation with shillings. if this occurs before another bishop or royal official [earldorman] let him make compensation with shillings. . if someone steals a cow or mare and drives off a foal or calf, let him pay over one shilling as well as paying compensation for the adult animals according to their value. . if anyone entrust a child into the keeping of others, and he i.e. the offspring die while in that guardianship, let him that did the fostering prove his innocence of any crime if anyone accuse him of it. . if anyone grabs at a nun's clothing or breast with sexual intent, unless with her consent, let him pay double the rate of compensation we previously arranged for a lay-person. if she commit adultery and she is a betrothed woman, if she is a commoner, let shillings be paid in compensation to the guarantor, and let that be in livestock or cattle, but let no one give any human as part of it. if she be of shilling wergeld, let shillings be paid in compensation to the guarantor. if she be of shilling wergeld, let compensation of shillings be paid to the guarantor. . if anyone lends his weapon to another so that he may kill with it, they may combine, if they are willing, in the matter of paying the wergeld. if they are unwilling to co-operate, let him that proffered the weapon pay a third part of the wergeld and a third part of the fine. if he i.e. the loaner of the weapon prefer to clear himself and assert that he knew of no evil-intent in making the loan, he may do so. . if someone entrust cattle to another man's monk, without the approval of the patron if that monk, and it gets lost, let he that originally owned it suffer the loss. . if a priest slay another man, let all that he i.e. the priest brought into the monastic community be turned over to the possession of the victim's representatives, and let the bishop unfrock him; then he shall be removed from the monastery, unless the civil patron interceded for him. . if someone wishes in the local assembly to declare a claim for debt to the king's officer, and then wishes to cancel it, let him impute i.e. transfer it to a truer source if he can. if he cannot, let him forfeit the single value. . if a dog rends or bites someone, for the first misdeed let the owner hand over shillings, if he is still giving it food. for as second occurrence, let him give shillings, and for a third shillings. if, upon any of these misdeeds, the dog escapes, nonetheless the penalty proceeds. if the dog commit more misdeeds and he i.e. the owner still keeps him, let him pay compensation at the level of a full wergeld as well as wound-compensation according to what he i.e. the dog has done. . if an ox wounds someone, let him i.e. the owner hand the animal over or come forward with some solution. . if someone forces a commoner's slave-woman to sexual intercourse, let him compensate the owner with shillings and pay shillings fine. if a male slave compel a female slave to sexual intercourse, let him atone with his testicles. . if someone force an underage woman into sexual intercourse, let the compensation be as that of an adult person. . if someone without kin on his father's side gets into a fight and kills someone, if he has maternal relatives, let them pay a third part of the wergeld; and a third part his guild-brethren; for a third part unpaid let him flee. if he has no maternal relatives, let the guild-brethren pay a half; for a half unpaid let him flee. . if someone kill a man so circumstanced and if he has no kinfolk, let them pay half the wergeld to the king, half to his guild-brethren. . if anyone in a group kills a shilling wergeld man who is guiltless, let him that acknowledges the blow pay over wergeld and fine, and let every man who was of the party hand over shillings in token of his complicity. . if it is a case of a shilling wergeld man, let each of them pay shillings as a token of their complicity, and let him that struck the fatal blow pay wergeld and fine. . if he that is killed is a shilling wergeld man, let each of them pay shillings, and let the one who struck the fatal blow pay wergeld and fine. if a group commit this sort of killing, and later deny responsibility on oath, let them all be accused, and let them pay over the wergeld as a group, and together pay one fine such as corresponds to the wergeld. . if someone commits slander and it is proved against him, let him make atonement with no lighter penalty than having is tongue cut out. it i.e. the tongue must not be redeemed for any lesser value than would be reckoned in proportion to the wergeld. . if someone reproach another with breach of church-witnessed pledge and wishes to accuse him of not fulfilling any of those pledges that he gave him, let the accuser make his preliminary oath in four churches, and the other i.e. the accused, if he wishes to assert his good faith - let him do that in twelve churches. . also it is laid down for traders that they should produce before the king's officer at the local assembly those people that they are taking inland with them, and let it be established how many of them there are. and let them take only such men as they can afterward be accountable for at the local assembly. an if they have need of more men along with them on their journey, let it always be declared, as often as is necessary, to the king's officer before the assembly. . if someone restrains a free man who is innocent, let him pay compensation of ten shillings. if he flogs him, compensation of twenty shillings. if he put him to torture compensation of thirty shillings. if as a humiliation he shave his head like a homolan, let him pay compensation of ten shillings. if he shaves him i.e. his head like a priest's, without binding him let him pay compensation of thirty shillings. if he shaves off his beard, let him pay compensation of twenty shillings. if he ties him up and then shaves his head like a priest's, let him pay compensation of sixty shillings. . it is established that if someone has a spear over his shoulder and someone else impales himself upon it, he i.e. the spear-carrier shall pay the wergeld without any fine. if he is impaled from in front, let him i.e. the spear-carrier pay the wergeld. if someone accuses him i.e. the spear-carrier of deliberately doing it, let him assert his innocence at a rate corresponding to the fine, and by that finish with the fine. and this applies if the point is above the rest of the shaft; if they are both level, point and shaft, let it count as no risk. . if someone wants to seek a new lord, transferring from one district to another district, let him do it with the knowledge of the chief officer to whom he was originally responsible in his shire. if he does it without his i.e. the officer's knowledge, let him who harbours him as his follower pay over shillings as a fine. but let him divide it, paying the king half in the shire where the man was originally answerable, and half in that he has moved to. if he i.e. the man who moves had done anything wrong where he came from, let him who receives him as his follower pay the compensation and a fine of shillings to the king. . if someone starts a fight in front of the king's officer at an assembly, let him pay compensation of wergeld and a fine, as it is customary; and as a priority a fine of shillings to the officer [earldorman] concerned. if he disturb the assembly by drawing a weapon, let him pay shillings to the officer by way of fine. if something of this sort occurs before the king's officer's deputy or a royal priest, let him pay shillings by way of fine. . if someone starts a fight on the floor of a free man's house, let him pay compensation of six shillings to the freeman. if he draws his weapon but does not fight, let the compensation be half that. if either of these offences takes place in the house of a shilling wergeld man, let the rate rise to triple the compensation due the freeman. in the case of a shilling wergeld man, a rate twice that of the compensation of the shilling wergeld man. . for breaking into a royal residence the penalty shall be shillings. into an archbishop's, ninety shillings. into another bishop's or a royal officer's, shillings. into a shilling werwgeld man's, thirty shillings. into a shilling wergeld man's fifteen shillings. for breaking into a freeman's property the penalty shall be five shillings. if something of this kind takes place while the levy [fyrd] is on duty elsewhere, or during lent, let it be a double compensation. if someone sets aside holy custom publicly in lent without an exemption, let him pay a compensation of shillings. . the man who has charter land [bocland] which his kin left him, is not allowed, we enact, to part with it outside his kin-group, if there is written evidence or spoken witness that it was forbidden to be done by those people who originally acquired it or by those who passed it to him. let him i.e. the one who opposes the alienation process declare any such stipulation in the presence of the king and the bishop, with his own kin attending. . also we command that the man who knows his enemy is quiescent at home should not start a fight before he has asked him for justice. if he has the strength to surround his enemy and besiege him, let him contain him for days within and not attack him if he i.e. the enemy is willing to abide within. after seven days if he is willing to surrender and hand over his weapons, let him i.e. the avenger keep him unharmed for thirty days and inform his kinsmen and his friends about him. but if he i.e. the enemy flee to a church, let the matter be resolved according to the privilege of the church, as we detailed above. but if he i.e. the avenger does not have the resources to besiege him i.e. the enemy, let him ride to the royal officer and ask him for help. if he i.e. the officer is unwilling to assist, let him ride and ask the king, before he mounts an attack. further, if someone happen upon his enemy and did not know beforehand that he was quiescent at home, if he i.e. the enemy is willing to hand over his weapons, let him be held for thirty days and inform his friends about him; if he is not willing to hand over his weapons then he i.e. the avenger may attack him. if he i.e. the enemy is willing to surrender and hand over his weapons and yet someone still attacks him, let the aggressor pay over wergeld and wound compensation, according to what he has done, and pay a fine, and lose his kin-status. we also declare someone may fight in support of his lord without blame, if anyone has attacked the lord; so too the lord may fight in support of his follower. in the same way, someone may fight on behalf of his blood relative if someone attack him wrongfully, but not take the side of a kinsman against his lord - that we do not permit. someone may fight blamelessly if he discovers another with his lawful wife behind closed doors or under the one cover, or with his legitimate daughter, or with his legitimate sister or with his mother if she was given lawfully to his father. . to all free people let these following days be granted as holidays but not to slaves and servile workers; twelve days at christmas and the day that christ overcame the devil, and st. gregory's commemoration day, and seven days before easter and seven after, and one day at the celebration of st. peter and st. paul and the full week in harvest before st. mary's mass, and one day for the celebration of all hallows. the four wednesdays in the ember weeks shall be granted to all slaves to sell to anyone that pleases them to anything either that any man will give them in god's name or what they in any spare time can manage." .- . the compensations for wounds is as follows: head if both bones of the head be pierced s., head if the outer bone only be pierced s.; an inch long wound in the area of the hair s., an inch long wound in the front of the hair s.; striking off the other ear s., if the hearing be affected so that he cannot hear s.; putting out an eye s. / d., if the eye stay in the head but he can see nothing with it / of the compensation be remitted; striking off a nose s.; striking a front tooth s., a back tooth s., a canine tooth s.; severing cheeks s., breaking a chin bone s.; perforating a windpipe s.; removing a tongue the same compensatin for any eye; wounding in the shoulder so that the muscle fluid flows out s.; shattering the arm above the elbow s.; shattering both arm bones s.; striking off the thumb s., if the nail is struck off s.; striking off the forefinger s., for the nail s.; striking off the middle finger s., for the nail s.; striking off the ring finger s., for the nail s.; striking off the little finger s., for the nail s.; wounding in the belly s., if the wound go through the body s. for each opening; perforating the thigh or hip s., if it be disabled s.; piercing the leg below the knee s., if he is disabled below the knee s.; striking off the great toe s., the second toe s., the middle toe s., the fourth toe s., the little toe s.; wounding in the testicles so that he cannot bear children s.; cutting off the arm below the elbow with the hand cut off s., wounding before the hair-line and below the sleeve and below the knee twice the value; permanently damaging the loins s., it they are stabbed s., if they are pierced through s.; wounding in the shoulder if the victim be alive s.; maiming a hand outwardly, providing it can be treated effectively s., if half the hand be lost s.; breaking a rib without breaking the skin s., if the skin be broken and the bone be extruded s.; cutting away an eye hand or foot s. / d.; cutting off the leg at the knee s.; breaking a shoulder s.; hacking into a shoulder so that the bone extrudes s.; severing the tendon of the foot and if it can be treated so that will be sound again s., but if he is lame on account of the wound and he cannot be cured s.; severing the lesser tendon s.; severing the muscles up by the neck and damage them so severely that he has no control over them and however lives on thus maimed s., unless the witan appoint him a juster and greater sum. judicial procedure cases were held at monthly meetings of the hundred court. the king or one of his reeves, conducted the trial by compurgation, which was an appeal to the supernatural. in compurgation, the one complaining, called the "plaintiff", and the one defending, called the "defendant", each told their story and put his hand on the bible and swore "by god this oath is clean and true". a slip or a stammer would mean he lost the case. otherwise, community members would stand up to swear on behalf of the plaintiff or the defendant as to their reputation for veracity. the value of a man's oath was commensurate with his value or wergeld. a man's brothers were usually his compurgators. the number of compurgators varied according to the nature of the case and the rank of the persons concerned. if there were too few "compurgators", usually twelve in number, or recited poorly, their party lost. if this process was inconclusive, the parties could bring witnesses to declare such knowledge as they had as neighbors. these witnesses, male and female, swore to particular points determined by the court. if compurgation failed, the defendant was told to go to church and to take the sacrament only if he was innocent. if he took the sacrament, he was tried by the process of "ordeal", which was administered by the church. in the ordeal by cold water, he was given a drink of holy water and then bound hand and foot and thrown into water. if he floated, he was guilty beccause the holy water had rejected him. if he sank, he was innocent. it was not necessary to drown to be deemed innocent. in the ordeal by hot water, he had to pick up a stone from inside a boiling cauldron. if his hand was healing in three days, he was innocent. if it was festering, he was guilty. a similar ordeal was that of hot iron, in which one had to carry in his hands a hot iron for a certain distance. in the ordeal of the consecrated morsel, one would swallow a morsel; if he choked on it, he was guilty. the results of the ordeal were taken to indicate the will of god. an archbishop's or bishop's oath was incontrovertible. if they were accused, they could clear themselves with an oath that they were guiltless. lesser ranks could clear themselves with the oaths of at least three compurgators of their rank or, for more serious offenses, undergo the ordeal. the shire and hundred courts were held for free tenants of a lord and the judges were the tenants themselves. the feudal courts were held for unfree tenants and the lord or his steward was the judge. the earl presided over the shire court. he received one-third of the profits of justice. the judges were the owners of certain pieces of land. the shire court was held twice a year. there was little distinction between secular and spiritual jurisdiction. a bishop sat on the shire court. the shire court fulfilled all three functions of government: judicial, legislative, and executive. the courts had no efficient mode of compelling attendance or enforcing their orders, except by outlawing the offender, that is, putting him outside the protection of the law, so that anyone might kill him with impunity. in grave cases, a special expedition could be called against an offender. the individual wronged had his choice of payment in money or engaging in a blood feud. the sums of money of the system of bot, wer, and wite were enormous, and often could not be paid. then a man could be declared outlaw or sold as a slave. if a person was outlawed, he also forfeited all his goods to the king. cases of general importance concerned mayslaying, wounding, and cattle-stealing. a person convicted of murder, i.e. killing by stealth or robbery [taking from a person's robe, that is, his person or breaking into his home to steal] could be hung and his possessions confiscated. a man had a self-help right to arrest a thief hand-habbende [a thief found with the stolen goods in his hands] and a thief back-berend [a thief found with the stolen goods on his back or about his person]. any inanimate or animate object or personal chattel which was found by a court to be the immediate cause of death was forfeited as "deodand", for instance, a tree from which a man fell to his death, a beast which killed a man, a sword of a third party not the slayer that was used to kill a man. the deodand was to go to the dead man's kin so they could wreak their vengeance on it, which in turn would cause the dead man to lie in peace. this is a lawsuit regarding rights to feed pigs in a certain woodland: "in the year which had passed since the birth of christ, and in the course of the second indiction, and during the reign of beornwulf, king of mercia, a council meeting was held in the famous place called clofesho, and there the said king beornwulf and his bishops and his earls and all the councilors of this nation were assembled. then there was a very noteworthy suit about wood pasture at sinton, towards the west in scirhylte. the reeves in charge of the pigherds wished to extend the pasture farther, and take in more of the wood than the ancient rights permitted. then the bishop and the advisors of the community said that they would not admit liability for more than had been appointed in aethelbald's day, namely mast for swine, and that the bishop and the community should have two thirds of the wood and of the mast. the archbishop wulfred and all the councilors determined that the bishop and the community might declare on oath that it was so appointed in aethelbald's time and that they were not trying to obtain more, and the bishop immediately gave security to earl eadwulf to furnish the oath before all the councilors, and it was produced in days at the bishop's see at worcester. at that time hama was the reeve in charge of the pigherds at sinton, and he rode until he reached worcester, and watched and observed the oath, as earl eadwulf bade him, but did not challenge it. here are the names and designations of those who were assembled at the council meeting ..." chapter the times: - there were many large landholders such as the king, earls, and bishops. earls were noblemen by birth, and often relatives of the king. they were his army commanders and the highest civil officials, each responsible for a shire. a breach of the public peace of an earl would occasion a fine. lower in social status were freemen: sokemen, and then, in decreasing order, villani [villeins], bordarii, and cottarii. the servi were the slaves. probably all who were not slaves were freemen. kings typically granted land in exchange for services of military duties, maintaining fortresses, and repairing bridges. less common services required by landlords include equipping a guard ship and guarding the coast, guarding the lord, military watch, maintaining the deer fence at the king's residence, alms giving, and church dues. since this land was granted in return for service, there were limitations on its heritability and often an heir had to pay a heriot to the landlord to obtain the land. a heriot was originally the weapons and armor of a man killed, which went to the king. the heriot of a thegn who had soken [or jurisdiction over their own lands] came to be about s.; of a kings' thegn about four lances, two coats of mail, two swords, and s.; of an earl about eight horses, four saddled and four unsaddled, eight lances, four coats of mail, four swords, and s. there were several thousand thegns, rich and poor, who held land directly of the king. some thegns had soken and others did not. free farmers who had sought protection from thegns in time of war now took them as their lords. a freeman could chose his lord, following him in war and working his land in peace. all able-bodied freemen were liable to military service in the fyrd [national militia], but not in a lord's private wars. in return, the lord would protect him against encroaching neighbors, back him in the courts of law, and feed him in times of famine. but often, lords raided each other's farmers, who fled into the hills or woods for safety. often a lord's fighting men stayed with him at his large house, but later were given land with inhabitants on it, who became his tenants. the lords were the ruling class and the greatest of them sat in the king's council along with bishops, abbots, and officers of the king's household. the lesser lords were local magnates, who officiated at the shire and hundred courts. staghunting, foxhunting, and hawking were reserved for lords who did not work with their hands. every free born person had the right to hunt other game. there was a great expansion of arable land. some land had been specifically allocated to certain individuals. some was common land, held by communities. if a family came to pay the dues and fines on certain common land, it could become personal to that family and was then known as heirland. most land came to be privately held from community-witnessed allotments or inheritance. bookland was those holdings written down in books. this land was usually land that had been given to the church or monasteries because church clerics could write. so many thegns gave land to the church, usually a hide, that the church held / of the land of the realm. folkland was that land that was left over after allotments had been made to the freemen and which was not common land. it was public land and a national asset and could be converted to heirland or bookland only by action of the king and witan. it could also be rented by services to the state via charter. a holder of folkland might express a wish, e.g. by testamentary action, for a certain disposition of it, such as an estate for life or lives for a certain individual. but a distinct act by the king and witan was necessary for this wish to take effect. small private transactions of land could be done by "livery of seisin" in the presence of neighbors. "seisin" is rightful possession. a man in possession of land is presumed to have "seisin", unless and until someone else can establish a better title by legal process. all estates in land could be let, lent, or leased by its holders, and was then known as "loenland". ploughs and wagons could be drawn by four or more oxen or horses in sets of two behind each other. oxenshoes and horseshoes prevented lameness due to cracked hooves. horse collars especially fitted for horses, replaced oxen yoke that had been used on horses. the horse collar did not restrict breathing and enabled horses to use the same strength of oxen. also, horses had better endurance and faster speed. a free holder's house was wood, perhaps with a stone foundation, and roofed with thatch or tiles. there was a main room or hall, with bed chambers around it. beyond was the kitchen, perhaps outside under a lean-to. these buildings were surrounded by a bank or stiff hedge. simple people lived in huts made from wood and mud, with one door and no windows. they slept around a wood-burning fire in the middle of the earthen floor. they wore shapeless clothes of goat hair and unprocessed wool from their sheep. they ate rough brown bread, vegetable and grain broth, ale from barley, bacon, beans, milk, cabbage, onion, apples, plums, cherries, and honey for sweetening or mead. vegetables grown in the country included onions, leeks, celery, lettuce, radish, carrots, garlic, shallots, parsnip, dill, chervil, marigold, coriander, and poppy. in the summer, they ate boiled or raw veal and wild fowl such as ducks, geese, or pigeons, and game snared in the forest. poultry was a luxury food, but recognized as therapeutic for invalids, especially in broth form [chicken soup]. venison was highly prized. there were still some wild boar, which were hunted with long spears, a greyhound dog, and hunting horns. they sometimes mated with the domestic pigs which roamed the woodlands. in september, the old and infirm pigs were slaughtered and their sides of bacon smoked in the rafters for about a month. their intestines provided skin for sausages. in the fall, cattle were slaughtered and salted for food during the winter because there was no more pasture for them. however, some cows and breed animals were kept through the winter. for their meals, people used wooden platters, sometimes earthenware plates, drinking horns, drinking cups from ash or alderwood turned on a foot-peddled pole lathe, and bottles made of leather. their bowls, pans, and pitchers were made by the potter's wheel. water could be boiled in pots made of iron, brass, lead, or clay. water could be carried in leather bags because leather working preservative techniques improved so that tanning prevented stretching or decaying. at the back of each hut was a hole in the ground used as a latrine, which flies frequented. moss was used for toilet paper. parasitical worms in the stool were ubiquitous. most of the simple people lived in villages of about homes circling a village green or lining a single winding lane. there were only first names, and these were usually passed down family lines. to grind their grain, the villagers used hand mills with crank and gear, or a communal mill, usually built of oak, driven by power transmitted through a solid oak shaft, banded with iron as reinforcement, to internal gear wheels of elm. almost every village had a watermill. it might be run by water shooting over or flowing under the wheel. clothing for men and women was made from coarse wool, silk, and linen and was usually brown in color. only the wealthy could afford to wear linen or silk. men also wore leather clothing, such as neckpieces, breeches, ankle leathers, shoes, and boots. boots were worn when fighting. they carried knives or axes under metal belts. they could carry items by tying leather pouches onto their belts with their drawstrings. they wore leather gloves for warmth and for heavy working with their hands. people were as tall, strong and healthy as in the late s, not having yet endured the later malnourishment and overcrowding that was its worst in the s and s. their teeth were very healthy. most adults died in their s, after becoming arthritic from hard labor. people in their s were deemed venerable. boys of twelve were considered old enough to swear an oath of allegiance to the king. girls married in their early teens, often to men significantly older. the lands of the large landholding lords were administered by freemen. they had wheat, barley, oats, and rye fields, orchards, vineyards for wine, and beekeeping areas for honey. on this land lived not only farm laborers, cattle herders, shepherds, goatherds, and pigherds, but craftsmen such as goldsmiths, hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters, builders, weaponsmiths, embroiders, bronze smiths, blacksmiths, watermill wrights, wheelwrights, wagon wrights, iron nail makers, potters, soap makers (made from wood ashes reacting chemically with fats or oils), tailors, shoemakers, salters (made salt at the "wyches", which later became towns ending with '-wich'), bakers, cooks, and gardeners. most men did carpentry work. master carpenters worked with ax, hammer, and saw to make houses, doors, bridges, milk buckets, washtubs, and trunks. blacksmiths made gates, huge door hinges, locks, latches, bolts, and horseshoes. the lord loaned these people land on which to live for their life, called a "life estate", in return for their services. the loan could continue to their widows or children who took up the craft. mills were usually powered by water. candles were made from beeswax, which exuded a bright and steady light and pleasant smell, or from mutton fat, which had an unpleasant odor. the wheeled plough and iron-bladed plough made the furrows. one man held the plough and another walked with the oxen, coaxing them forward with a stick and shouts. seeds were held in an apron for seeding. farm implements included spades, shovels, rakes, hoes, buckets, barrels, flails, and sieves. plants were pruned to direct their growth and to increase their yield. everyone got together for feasts at key stages of the farming, such as the harvest. easter was the biggest feast. when the lord was in the field, his lady held their estate. there were common lands of these estates as well as of communities. any proposed new settler had to be admitted at the court of this estate. the land of some lords included fishing villages along the coasts. from the sea were caught herrings, salmon, porpoises, sturgeon, oysters, crabs, mussels, cockles, winkles, plaice, flounder, and lobsters. sometimes whales were driven into an inlet by many boats. river fish included eels, pike, minnows, burbot, trout, and lampreys. they were caught by brushwood weirs, net, bait, hooks, and baskets. oysters were so numerous that they were eaten by the poor. the king's peace extended over the waterways. if mills, fisheries, weirs, or other structures were set up to block them, they were to be destroyed and a penalty paid to the king. other lords had land with iron mining industries. ore was dug from the ground and combined with wood charcoal in a shaft furnace to be smelted into liquid form. wood charcoal was derived from controlled charring of the wood at high temperatures without using oxygen. this burned impurities from it and left a purer carbon, which burned better than wood. the pure iron was extracted from this liquid and formed into bars. to keep the fire hot, the furnaces were frequently placed at windswept crossings of valleys or on the tops of hills. some lords had markets on their land, for which they charged a toll for participation. there were about fifty markets in the nation. cattle and slaves (from the word "slav") were the usual medium of exchange. an ox was still worth about d. shaking hands was symbolic of an agreement for a sale, which had to be carried out in front of witnesses at the market for any property worth over d. the higher the value of the property, the more witnesses were required. witnesses were also required for the exchange of property and to vouch for cattle having being born on the property of a person claiming them. people traveled to markets on deep, sunken roads and narrow bridges kept in repair by certain men who did this work as their service to the king. the king's peace extended to a couple of high roads, i.e. highways, running the length of the country and a couple running its width. salt was used throughout the nation to preserve meat over the winter. inland saltworks had an elaborate and specialized organization. the chief one used saltpans and furnaces to extract salt from natural brine springs. they formed little manufacturing enclaves in the midst of agricultural land, and they were considered to be neither large private estates headed by a lord nor appurtenant to such. they belonged jointly to the king and the local earl, who shared, at a proportion of two to one, the proceeds of the tolls upon the sale of salt and methods of carriage on the ancient salt ways according to cartload, horse load, or man load. sometimes there were investors in a portion of the works who lived quite at distance away. the sales of salt were mostly retail, but some bought to resell. peddlers carried salt to sell from village to village. some smiths traveled for their work, for instance, stonewrights building arches and windows in churches, and lead workers putting lead roofs on churches. an example of a grant of hides of land is: "[god has endowed king edred with england], wherefore he enriches and honors men, both ecclesiastic and lay, who can justly deserve it. the truth of this can be acknowledged by the thegn aelfsige hunlafing through his acquisition of the estate of hides at alwalton for himself and his heirs, free from every burden except the repair of fortifications, the building of bridges and military service; a prudent landowner church dues, burial fees and tithes. [this land] is to be held for all time and granted along with the things both great and small belonging to it." a bishop gave land to a faithful attendant for his life and two other lives as follows: "in a.d., i, bishop werfrith, with the permission and leave of my honorable community in worcester, grant to wulfsige, my reeve, for his loyal efficiency and humble obedience, one hide of land at aston as herred held it, that is, surrounded by a dyke, for three lives and then after three lives the estate shall be given back without any controversy to worcester." at seaports on the coast, goods were loaded onto vessels owned by english merchants to be transported to other english seaports. london was a market town on the north side of the thames river and the primary port and trading center for foreign merchants. streets that probably date from this time include milk, bread, and wood streets, and honey lane. there were open air markets such as billingsgate. there were wooden quays over much of the river front. houses were made of wood, with one sunken floor, or a ground floor with a cellar beneath. some had central stone hearths and earth latrines. there were crude pottery cooking pots, beakers and lamps, wool cloth, a little silk, simple leather shoes, pewter jewelry, looms, and quernstones (for grinding flour). wool, skins, hides, wheat, meal, beer, lead, cheese, salt, and honey were exported. wine (mostly for the church), fish, timber, pitch, pepper, garlic, spices, copper, gems, gold, silk, dyes, oil, brass, sulphur, glass, slaves, and elephant and walrus ivory were imported. goods from the continent were sold at open stalls in certain streets. furs and slaves were traded. there was a royal levy on exports by foreigners merchants. southwark, across the thames river from london,was reachable by a bridge. southwark contained sleazy docks, prisons, gaming houses, and brothels. guilds in london were first associations of neighbors for the purposes of mutual assistance. they were fraternities of persons by voluntary compact to assist each other in poverty, including their widows or orphans and the portioning of poor maids, and to protect each other from injury. their essential features are and continue to be in the future: ) oath of initiation, ) entrance fee in money or in kind and a common fund, ) annual feast and mass, ) meetings at least three times yearly for guild business, ) obligation to attend all funerals of members, to bear the body if need be from a distance, and to provide masses for the dead, ) the duty of friendly help in cases of sickness, imprisonment, house burning, shipwreck, or robbery, ) rules for decent behavior at meetings, and ) provisions for settling disputes without recourse to the law. both the masses and the feast were attended by the women. frequently the guilds also had a religious ceremonial to affirm their bonds of fidelity. they readily became connected with the exercise of trades and with the training of apprentices. they promoted and took on public purposes such as the repairing of roads and bridges, the relief of pilgrims, the maintenance of schools and almshouses, and the periodic performance of pageants and miracle plays telling scriptural history, which could last for several days. the devil often was prominent in miracle plays. many of these london guilds were known by the name of their founding member. there were also frith guilds (peace guilds) and a knights' guild. the frith guild's main object was to enforce the king's laws, especially the prevalent problem of theft. they were especially established by bishops and reeves. members met monthly and contributed about d. to a common fund, which paid a compensation for items stolen. they each paid s. towards the pursuit of the thief. the members were grouped in tens. members with horses were to track the thief. members without horses worked in the place of the absent horse owners until their return. when caught, the thief was tried and executed. overwhelming force was used if his kindred tried to protect him. his property was used to compensate the victim for his loss and then divided between the thief's wife, if she was innocent, the king, and the guild. owners of slaves paid into a fund to give one half compensation to those who lost slaves by theft or escape, and recaptured slaves were to be stoned to death or hanged. the members of the peace guild also feasted and drank together. when one died, the others each sang a song or paid for the singing of fifty psalms for his soul and gave a loaf. the knights' guild was composed of thirteen military persons to whom king edgar granted certain waste land in the east of london, toward aldgate, and also portsoken, which ran outside the eastern wall of the city to the thames, for prescribed services performed, probably defense of the vulnerable east side of the city. this concession was confirmed by king edward the confessor in a charter at the suit of certain citizens of london, the successors of these knights. edward granted them sake and soke, the right to hold a court for the offender and to receive the profits of jurisdiction, over their men. edward the confessor made these rules for london: . be it known that within the space of three miles from all parts outside of the city a man ought not to hold or hinder another, and also should not do business with him if he wish to come to the city under its peace. but when he arrives in the city, then let the market be the same to the rich man as to the poor. . be it also known that a man who is from the court of the king or the barons ought not to lodge in the house of any citizen of london for three nights, either by privilege or by custom, except by consent of the host. for if he force the host to lodge him in his house and there be killed by the host, let the host choose six from his relatives and let him as the seventh swear that he killed him for the said cause. and thus he will remain quit of the murder of the - - deceased towards the king and relatives and lords of the deceased. . and after he has entered the city, let a foreign merchant be lodged wherever it please him. but if he bring dyed cloth, let him see to it that he does not sell his merchandise at retail, but that he sell not less than a dozen pieces at a time. and if he bring pepper, or cumin, or ginger, or alum, or brasil wood, or resin, or incense, let him sell not less than fifteen pounds at a time. but if he bring belts, let him sell not less than a thousand at a - - time. and if he bring cloths of silk, or wool or linen, let him see that he cut them not, but sell them whole. but if he bring wax, let him sell not less than one quartanum. also a foreign merchant may not buy dyed cloth, nor make the dye in the city, nor do any work which belongs by right to the citizens. . also no foreign merchant with his partner may set up any market within the city for reselling goods in the city, nor may he approach a citizen for making a bargain, nor may he stop longer in the city. every week in london there was a folkmote at st. paul's churchyard, where majority decision was a tradition. by , it had lost much of its power to the husting [household assembly in danish] court. the folkmote then had responsibility for order and was the sole authority for proclaiming outlaws. it met three times a year at st. paul's churchyard and there acclaimed its sheriff and its justiciar, or if the king had chosen his officer, heard who was chosen and listened to his charge. it also yearly arranged the watch and dealt with risks of fire. it was divided into wards, each governed by an alderman who presided over the wardmote, and represented his ward at the folkmote. each guild became a ward. the chief alderman was the portreeve. london paid one-eighth of all the taxes of england. later in the towns, merchant guilds grew out of charity associations whose members were bound by oath to each other and got together for a guild feast every month. some traders of these merchant guilds became so prosperous that they became landholders. many market places were dominated by a merchant guild, which had a monopoly of the local trade. in the great mercantile towns all the land and houses would be held by merchants and their dependents, all freeholders were connected with a trade, and everyone who had a claim on public office or magistry would be a member of the guild. the merchant guild could admit into their guild country villeins, who became freemen if unclaimed by their lords for a year and a day. every merchant who had made three long voyages on his own behalf and at his own cost ranked as a thegn. there were also some craft guilds composed of handicraftsmen or artisans. escaped bonded agricultural workers, poor people, and traders without land migrated to towns to live, but were not citizens. towns were largely self-sufficient, but salt and iron came from a distance. the king's established in every shire at least one town with a market place where purchases would be witnessed, and a mint where reliable money was coined by a moneyer, who put his name on his coins. there were eight moneyers in london. coins were issued to be of value for only a couple of years. then one had to exchange them for newly issued ones at a rate of about old for or new. the difference constituted a tax. roughly % of the people lived in towns. some took surnames such as tanner, weaver, or carpenter. some had affectionate or derisive nicknames such as clear-hand, fresh friend, soft bread, foul beard, money taker, or penny purse. craftsmen in the s included goldsmiths, embroiderers, illuminators of manuscripts, and armorers. edward the confessor, named such for his piety, was a king of years who was widely respected for his intelligence, resourcefulness, good judgment, and wisdom. his educated queen edith, whom he relied on for advice and cheerful courage, was a stabilizing influence on him. they were served by a number of thegns, who had duties in the household, which was composed of the hall, the courtyard, and the bedchamber. they were important men - thegns by rank. they were landholders, often in several areas, and held leading positions in the shires. they were also priests and clerics, who maintained the religious services and performed tasks for which literacy was necessary. edward was the first king to have a "chancellor", who was the first great officer of state. he kept a royal seal and was the chief royal chaplain. he did all the secretarial work of the household and court, drew up and sealed the royal writs, conducted the king's correspondence, and kept all the royal accounts. the word "chancellor" signified a screen behind which the secretarial work of the household was done. he had the special duty of securing and administering the royal revenue from vacant benefices. the second great office was that of treasurer, who headed the exchequer. the most important royal officers were the chamberlains, who took care of the royal bedchamber and adjoining wardrobe used for dressing and storage of valuables, and the priests. these royal officers had at first been responsible only for domestic duties, but gradually came to assume public administrative tasks. edward wanted to avoid the pressures and dangers of living in the rich and powerful city of london. so he rebuilt a monastic church, an abbey, and a palace at westminster about two miles upstream. he started the growth of westminster as a center of royal and political power; kings' councils met there. royal coronations took place at the abbey. since edward traveled a lot, he established a storehouse-treasury at winchester to supplement his traveling wardrobe. at this time, spanish stallions were imported to improve english horses. london came to have the largest and best trained army in england. the court invited many of the greatest magnates and prelates [highest ecclesiastical officials, such as bishops] of the land to the great ecclesiastical festivals, when the king held more solemn courts and feasted with his vassals for several days. these included all the great earls, the majority of bishops, some abbots, and a number of thegns and clerics. edward had a witan of wise men to advise him, but sometimes the king would speak in the hall after dinner and listen to what comments were made from the mead-benches. as the court moved about the country, many men came to pay their respects and attend to local business. edward started the practice of king's touching people to cure them of scrofula, a disease which affected the glands, especially in the head and neck. it was done in the context of a religious ceremony. the main governmental activities were: war, collection of revenue, religious education, and administration of justice. for war, the shires had to provide a certain number of men and the ports quotas of ships with crews. the king was the patron of the english church. he gave the church peace and protection. he presided over church councils and appointed bishops. as for the administration of justice, the public courts were almost all under members of edward's court, bishops, earls, and reeves. edward's mind was often troubled and disturbed by the threat that law and justice would be overthrown, by the pervasiveness of disputes and discord, by the raging of wicked presumption, by money interfering with right and justice, and by avarice kindling all of these. he saw it as his duty to courageously oppose the wicked by taking good men as models, by enriching the churches of god, by relieving those oppressed by wicked judges, and by judging equitably between the powerful and the humble. he was so greatly revered that a comet was thought to accompany his death. the king established the office of the chancery to draft documents and keep records. it created the writ, which was a small piece of parchment [sheep skin] addressed to a royal official or dependent commanding him to perform some task for the king. by the s a.d., the writ contained a seal: a lump of wax with the impress of the great seal of england which hung from the bottom of the document. writing was done with a sharpened goose-wing quill. ink was obtained from mixing fluid from the galls made by wasps for their eggs on oak trees, rainwater or vinegar, gum arabic, and iron salts for color. a king's grant of land entailed two documents: a charter giving boundaries and conditions and a writ, usually addressed to the shire court, listing the judicial and financial privileges conveyed with the land. these were usually sac [jurisdiction of a lord to hold court and to impose fines and amercements] and soke [jurisdiction of a private court of a noble or institution to execute the laws and administer justice over inhabitants and tenants of the estate], toll [right to have a market and to collect a payment on the sale of cattle and other property on one's own estate] and team [a privilege granted by royal charter to the lord of a manor for the having, restraining, and judging of villeins with their children, goods, and chattels], and infangenetheof [the authority to hang and take the chattels of a thief caught on his estate]. the town of coventry consisted of a large monastery estate, headed by an abbot, and a large private estate headed by a lord. the monastery was granted by edward the confessor full freedom and these jurisdictions: sac and soke, toll and team, hamsocne [the authority to fine a person for breaking into and making entry by force into the dwelling of another], forestall [the authority to fine a person for robbing others on the road], bloodwite [the authority to impose a forfeiture for assault involving bloodshed], fightwite [the authority to fine for fighting], weordwite [the authority to fine for manslaughter, but not for willful murder], and mundbryce [the authority to fine for any breach of the peace, such as trespass on lands]. every man was expected to have a lord to whom he gave fealty. he swore by a fealty oath such as: "by the lord, before whom this relic is holy, i will be to faithful and true, and love all that he loves, and shun all that he shuns, according to god's law, and according to the world's principle, and never, by will nor by force, by word nor by work, do ought of what is loathful to him; on condition that he keep me as i am willing to deserve, and all that fulfill that our agreement was, when i to him submitted and chose his will." if a man was homeless or lordless, his brothers were expected to find him such, e.g. in the folkmote. otherwise, he was to be treated as a fugitive and could be slain, and anyone who had harbored him would pay a penalty. brothers were also expected to protect their minor kinsmen. when the oath of fealty was sworn, the man usually did homage to this lord symbolized by holding his hands together between those of his lord. marriages were determined by men asking women to marry them. if a woman said yes, he paid a sum to her kin for her "mund" [jurisdiction or protection over her] and gave his oath to them to maintain and support the woman and any children born. as security for this oath, he gave a valuable object or "wed". the couple were then betrothed. marriage ceremonies were performed by priests in churches. the groom had to bring friends to his wedding as sureties to guarantee his oath to maintain and support his wife and children. those who swore to take care of the children were called their "godfathers". the marriage was written into church records. after witnessing the wedding, friends ate the great loaf, or first bread made by the bride. this was the forerunner of the wedding cake. they drank special ale, the "bride ale" (from hence the work "bridal"), to the health of the couple. women could own land, houses, and furniture and other property. they could even make wills that disinherited their sons. this marriage agreement with an archbishop's sister provides her with land, money, and horsemen: "here in this document is stated the agreement which wulfric and the archbishop made when he obtained the archbishop's sister as his wife, namely he promised her the estates at orleton and ribbesford for her lifetime, and promised her that he would obtain the estate at knightwick for her for three lives from the community at winchcombe, and gave her the estate at alton to grant and bestow upon whomsoever she pleased during her lifetime or at her death, as she preferred, and promised her mancuses of gold and men and horses. the witnesses that this agreement was made as stated were archbishop wulfstan and earl leofwine and bishop aethelstan and abbot aelfweard and the monk brihtheah and many good men in addition to them, both ecclesiastics and laymen. there are two copies of this agreement, one in the possession of the archbishop at worcester and the other in the possession of bishop aethelstan at hereford." this marriage agreement provided the wife with money, land, farm animals and farm laborers; it also names sureties, the survivor of whom would receive all this property: "here is declared in this document the agreement which godwine made with brihtric when he wooed his daughter. in the first place he gave her a pound's weight of gold, to induce her to accept his suit, and he granted her the estate at street with all that belongs to it, and acres at burmarsh and in addition oxen and cows and horses and slaves. this agreement was made at kingston before king cnut, with the cognizance of archbishop lyfing and the community at christchurch, and abbot aelfmaer and the community at st. augustine's, and the sheriff aethelwine and sired the old and godwine, wulfheah's son, and aelfsige cild and eadmaer of burham and godwine, wulfstan's son, and carl, the king's cniht. and when the maiden was brought from brightling aelfgar, sired's son, and frerth, the priest of forlstone, and the priests leofwine and wulfsige from dover, and edred, eadhelm's son, and leofwine, waerhelm's son, and cenwold rust and leofwine, son of godwine of horton, and leofwine the red and godwine, eadgifu's son, and leofsunu his brother acted as security for all this. and whichever of them lives the longer shall succeed to all the property both in land and everything else which i have given them. every trustworthy man in kent and sussex, whether thegn or commoner, is cognizant of these terms. there are three of these documents; one is at christchurch, another at st. augustine's, and brihtric himself has the third." nuns and monks lived in segregated nunneries and monasteries on church land and grew their own food. the local bishop usually was also an abbot of a monastery. the priests and nuns wore long robes with loose belts and did not carry weapons. their life was ordered by the ringing of the bell to start certain activities, such as prayer; meals; meetings; work in the fields, gardens, or workshops; and copying and illuminating books. they chanted to pay homage and to communicate with god or his saints. they taught justice, piety, chastity, peace, and charity; and cared for the sick. caring for the sick entailed mostly praying to god as it was thought that only god could cure. they bathed a few times a year. they got their drinking water from upstream of where they had located their latrines over running water. the large monasteries had libraries, dormitories, guesthouses, kitchens, butteries to store wine, bakehouses, breweries, dairies, granaries, barns, fishponds, orchards, vineyards, gardens, workshops, laundries, lavatories with long stone or marble washing troughs, and towels. slavery was diminished by the church by excommunication for the sale of a child over seven. the clergy taught that manumission of slaves was good for the soul of the dead, so it became frequent in wills. the clergy were to abstain from red meat and wine and were to be celibate. but there were periods of laxity. punishment was by the cane or scourge. the archbishop of canterbury began anointing new kings at the time of coronation to emphasize that the king was ruler by the grace of god. as god's minister, the king could only do right. from , the new king swore to protect the christian church, to prevent inequities to all subjects, and to render good justice, which became a standard oath. it was believed that there was a celestial hierarchy, with heavenly hosts in specific places. the heavenly bodies revolved in circles around the earthly world on crystal spheres of their own, which were serene, harmonious, and eternal. this contrasted with the change, death, and decay that occurred in the earthly world. also in this world, aristotle's four elements of earth, air, fire, and water sought their natural places, e.g. bubbles of air rising through water. the planets were called wanderers because their motion did not fit the circular scheme. god intervened in daily life, especially if worshipped. jesus christ, his mother the virgin mary and saints were also worshipped. saints such as bede and hilda performed miracles, especially ones of curing. their spirits could be contacted through their relics, which rested at the altars of churches. sin resulted in misfortune. when someone was said to have the devil in him, people took it quite literally. omens fortold events. a real jack frost nipped noses and fingers and made the ground too hard to work. little people, elves, trolls, and fairies inhabited the fears and imaginings of people. the forest was the mysterious home of spirits. people prayed to god to help them in their troubles and from the work of the devil. prayer was often a charm to conjure up friendly spirits rather than an act of supplication. sorcerers controlled the forces of nature with the aid of spirits. since natural causes of events were unknown, people attributed events to wills like their own. illness and disease were thought to be caused by demons and witches. to cure illness, people hung charms around their neck and went to good witches for treatments of magic and herbs. for instance, the remedy for "mental vacancy and folly" was a drink of "fennel, agrimony, cockle, and marche".some herbs had hallucinogenic effects, which were probably useful for pain. blood- letting by leeches and cautery were used for most maladies, which were thought to be caused by imbalance of the four bodily humors: sanguine, phlegmatic, choleric, and melancholic. these four humors reflected the four basic elements air, water, fire, and earth. blood was hot and moist like air; phlegm was cold and moist like water; choler or yellow bile was hot and dry like fire; and melancholy or black bile was cold and dry like earth. bede had explained that when blood predominates, it makes people joyful, glad, sociable, laughing, and talking a great deal. phlegm renders them slow, sleepy, and forgetful. red cholic makes them thin, though eating much, swift, bold, wrathful, and agile. black cholic makes them serious of settled disposition, even sad. to relieve brain pressure and/or maybe to exorcise evil spirits, holes were made in skulls by a drill with a metal tip that was caused to turn back and forth by a strap wrapped around a wooden handle. a king's daughter edith inspired a cult of holy wells, whose waters were thought to alleviate eye conditions. warmth and rest were also used for illness. agrimony boiled in milk was thought to relieve impotence in men. it was known that the liver casted out impurities in the blood. the stages of fetal growth were known. the soul was not thought to enter a fetus until after the third month, so presumably abortions within three months were allowable. the days of the week were sun day, moon day, tiw's day (viking god of war), woden's day (viking god of victory, master magician, calmer of storms, and raiser of the dead), thor's day (viking god of thunder), frig's day (viking goddess of fertility and growing things), and saturn's day (roman god). special days of the year were celebrated: christmas, the birthday of jesus christ; the twelve days of yuletide (a viking tradition) when candles were lit and houses decorated with evergreen and there were festivities around the burning of the biggest log available; plough monday for resumption of work after yuletide; february th with a feast celebrating saint valentinus, a roman bishop martyr who had married young lovers in secret when marriage was forbidden to encourage men to fight in war; new year's day on march th when seed was sown and people banged on drums and blew horns to banish spirits who destroy crops with disease; easter, the day of the resurrection of jesus christ; whitsunday, celebrating the descent of the holy spirit on the apostles of jesus and named for the white worn by baptismal candidates; may day when flowers and greenery was gathered from the woods to decorate houses and churches, morris dancers leapt through their villages with bells, hobby horses, and waving scarves, and people danced around a may pole holding colorful ribbons tied at the top so they became entwined around the pole; lammas on august st, when the first bread baked from the wheat harvest was consecrated; harvest home when the last harvest load was brought home while an effigy of a goddess was carried with reapers singing and piping behind, and october st, the eve of the christian designated all hallow day, which then became known as all hallow even, or halloween. people dressed as demons, hobgoblins, and witches to keep spirits away from possessing them. trick or treating began with christian beggars asking for "soul cake" biscuits in return for praying for dead relatives. ticktacktoe and backgammon were played. the languages of invaders had produced a hybrid language that was roughly understood throughout the country. the existence of europe, africa, asia, and india were known. jerusalem was thought to be at the center of the world. there was an annual tax of a penny on every hearth, peter's pence, to be collected and sent to the pope in rome yearly. ecclesiastical benefices were to pay church-scot, a payment in lieu of first fruits of the land, to the pope. the law there were several kings in this period. the king and witan deliberated on the making of new laws, both secular and spiritual, at the regularly held witanagemot. there was a standard legal requirement of holding every man accountable, though expressed in different ways, such as the following three: every freeman who does not hold land must find a lord to answer for him. every lord shall be personally responsible as surety for the men of his household. [this included female lords.] (king athelstan) "and every man shall see that he has a surety, and this surety shall bring and keep him to [the performance of] every lawful duty. . -and if anyone does wrong and escapes, his surety shall incur what the other should have incurred. . -if the case be that of a thief and his surety can lay hold of him within twelve months, he shall deliver him up to justice, and what he has paid shall be returned to him." (king edgar) every freeman who holds land, except lords with considerable landed property, must be in a local tithing, usually ten to twelve men, in which they serve as personal sureties for each other's peaceful behavior. if one of the ten landholders in a tithing is accused of an offense, the others have to produce him in court or pay a fine plus pay the injured party for the offense, unless they could prove that they had no complicity in it. if the man is found guilty but can not pay, his tithing must pay his fine. the chief officer is the "tithing man" or "capital pledge". there were probably ten tithings in a hundred. (king edward the confessor). canute reigned from to . the following are substantially all the laws of canute with an * before ones of special interest. proclamations of canute are: all my reeves, under pain of forfeiting my friendship and all that they possess and their own lives, shall govern my people justly everywhere, and to pronounce just judgments with the cognizance of the bishops of the dioceses, and to inflict such mitigated penalties as the bishop may approve and the man himself may be able to bear. i enjoin upon all the sheriffs and reeves throughout my kingdom that, as they desire to retain my friendship and their own sercurity, they employ no unjust force towards any man, either rich or poor, but that all, both nobles and commoners, rich and poor, shall have their right of just possession, which shall not be infringed upon in any way, either for the sake of obtaining the favour of the king or of gratifying any powerful person or of collecting money for me; and i have no need that monoey should be collected for me by any unust exactions. ecclesiastical laws of canute are: above all else, love and honour one god, and uphold one christian faith, and love king canute with due fidlity. *maintain the security and sanctity of the churches of god, and frequently attend them for the salvation of our souls and our own benefit. he who violates the protection given by the church of god within its walls, or the protection granted by a christian king in person shall lose both land and life, unless the king is willing to pardon him. homicide within the church's walls shall not be atoned for by any payment of compensation, and everyone shall pursue the miscreant, unless it happen that he escapes from there and reaches so inviolable a sanctuary that the king, because of that, grants him his life, upon condition that he makes full amends both towards god and towards men. the first conditon is that he shall give his own wergeld to christ and to the king and by that means obtain the legal right to offer compensation. and if the king allows compensation, amends for the violation of the protection of the church shall be made by the payment to the church of the full fine for breach of the king's mund, and the purification of the church shall be carried out as is fiting, and compensation both to the kin and to the lord of the slain man shall be fully psid, and supplication shall earnestly be made to god. if the protection of the church is broken by offenses such as fighting or robbery, without the taking of life, amends shall diligently be made in accordance with the nature of the offense. the penalty for violation of the protection of a principal church is pounds, for a church of medium rank is s., for a church with a graveyard s., and for a country chapel where there is no graveyard, s. maintain the security and sanctity of holy things and priests according to their rank, for they drive away devils, baptize anyone, hallow the eucharist, and intercede to christ for the needs of the people. if an accusation of evil practices is made against a priest and he knows himself to be guiltless, he shall say mass, if he dares, and thus clear himelf by the holy communion in the cases of a simple accusation, and by the holy communion with two supporters of the same ecclesiastical rank in the case of a triple accusation. if he has no supporters, he shall go to the ordeal of consecrated bread. no monk who belongs to a monastery may demand or pay compensation incurred by vendetta because he leaves the law of his kindred behind when he accepts monastic rule. if a priest is concerned in false witness or perjury or is the accessory and accomplice of thieves, he shall be cast out from the fellowship of those in holy orders and forfeit every privilege, unless he make amends both towards god and towards men, as the bishop shall prescribe, and find surtey for future behavior. servants of god shall call upon christ to intercede for all christian people and practice celibacy. those who turn away from marriage and observe celibacy shall enjoy the privileges of a thegn. *no christian man shall marry among his own kin within six degress of relationship or with the widow of a man as nearly related to him as that, or with a near relative of his first wife's. no man shall marry his god-mother, a nun, or a divorced woman. he shall not commit adultery. he shall have no more wives that one, with whom he shall remain as long as she lives. ecclesiastical dues shall be paid yearly, namely, plough alms days after easter, the tithe [tenth] of young animals at pentecost, and the tithe of the fruits of the earth at all saints. otherwise the king's reeve, the bishop's reeve, and the lord's reeve shall take what is due and assign him the next tenth, and the eight remaining parts shall go half to the lord and half to the bishop. peter's pence shall be paid by st. peter's day or pay the bishop the penny and d. in addition and s. to the king. church dues shall be paid at martinmas, or pay the biship eleven fold and s. to the king. any thegn with a church with attached graveyard on his land shall give a third part of his own tithes to his church. if he has a church without a graveyard, he shall give his priest whatever he desires from the nine remaining parts. light dues shall be paid a halfpenny worth of wax from every hide three times a year. payment for the souls of the dead should be rendered before the grave is closed. *all festivals and fasts, such as lent, shall be observed. the festival of every sunday shall be observed from noon on saturday till dawn on monday. no trading, public gatherings, hunting, or secular occupations shall be done on sunday. we forbid ordeals and oaths during festivals and fasts. to avoid the torment of hell, let us turn away from sin and confess our misdeeds to out confessors and cease from evil and make amends. each of us shall treat others as we desire to be treated. every christian man shall prepare himself for the sacrament at least three times a year. every friend shall abide by his oath and pledge. every injustice shall be cast out from this land. let us be faithful and true to our lord and promote his honour and carry out his will. and likewise, it is the duty of every lord to treat his men justly. men of every estate shall readily submit to the duty which befits them. every christian man shall learn the creed and the pater noster, the sacred prayer taught by christ to his disciples which contains all the petitions necessary for this life and the life to come. he who does not learn it may not sponsor another man at baptism or at confirmation. *guard against grievous sins and devilish deeds and make amends according to one's confessor's advice. fear god, be in terror of sin, and dread the day of judgment. the bishops shall give example of our duty towards god. secular laws of canute are: all men, both rich and poor, shall be entitled to the benefit of the law, and just decisions shall be pronounced on their behalf. those in authority to give judgment shall consider very earnestly "and forgive us our trespasses as we forgive them that trespass against us." christian people shall not be condemned to death for trivial offenses. we forbid the all too prevalent practice of selling christian people out of the country, especially into heathen lands. care shall be taken that the souls which christ bought with his own life be not destroyed. *any wizards or sorcerers, those who secretly compass death, prostitutes, thieves, and robbers shall be destroyed unless they cease and make amends. we forbid heathen practices, namely the worship of idols, heathen gods, and the sun or moon, fire or water, springs or stones or any kind of forest trees, or indulgence in witchcraft or the compassing of death in any way, either by sacrifice or by divinations or by the practice of any such delusions. *murderers and perjurers, injurers of the clergy, and adulterers shall submit and make amends or depart with their sins from their native land. *hypocrites and liars, robbers and plunderers shall incur the wrath of god, unless they desist and make amends. *there shall be one currency free from all adulteration throughout the land and no one shall refuse it. he who coins false money shall forfeit the hand with which he made it, and he shall not redeem it in any way, either with gold or silver. if the reeve is accused of having granted his permission to the man who coined the false money, he shall clear himself by the triple oath of exculpation and, if it fails, he shall have the same sentence as the man who coined the false money. *measures and weights shall be diligently corrected and an end put to all unjust practices. the repair of fortifications and bridges, and the preparation of ships and the equipment of military forces shall be diligently undertaken for the common need, whenever the occasion arises. *in wessex and mercia, the king is entitled to payments for violation of his mund, attacks on people's houses, assault, and neglecting military service. in the danelaw, he is entitled to payments for fighting, breach of the peace and attacks on people's houses, and neglect of military service. *if anyone does the deed of an outlaw, the king alone shall have power to grant him security. he shall forfeit all his land to the king without regard to whose vassal he is. whoever feeds or harbours the fugitive shall pay pounds to the king, unless he clears himself by a declaration that he did not know that he was a fugitive. *he who promotes injustice or pronounces unjust judgments, as a result of malice or bribery, shall forfeit s. to the king, in districts under english law, unless he declares on oath that he did not know how to give a more just verdict, and he shall lose forever his rank as a thegn, unless he redeem it from the king, provided the latter is willing to allow him to do so. in the danelaw he shall forfeit his lahslit. *he who refuses to observe just laws and judgments shall forfeit, in districts under english law, a fine to the party entitled thereto - either s. to the king, s. to the earl, or s. to the hundred, or to all of them if they were all concerned. *if a man seeks to accuse another man falsely in such a way as to injure him in property or in reputation, and if the latter can refute the accusation brought against him, the first shall forfeit his tongue, unless he redeems himself with his wergeld. no one shall appeal to the king, unless he fails to obtain justice within his hundred. everyone shall attend the hundred court, under pain of fine, whenever he is required by law to attend it. the borough court shall be held at least three times and the shire court at least twice, under pain of fine. the bishop of the diocese and the earldorman shall attend and they shall direct the administration of both ecclesiastical and secular law. *no one shall make distraint [seizure of personal property out of the possession of an alleged wrongdoer into the custody of the party injured, to procure a satisfaction for a wrong committed] of property either within the shire or outside it, until he has appealed for justice three times in the hundred court. if on the third occasion he does not obtain justice, he shall go on the fourth occasion to the shire court, and the shire court shall appoint a day when he shall issue his summons for the fourth time. and if this summons fails, he shall get leave from the one court or the other, to take his own measures for the recovery of his property. *every freeman over age must be in a tithing if he desires to have the right of exculpation and of being atoned for by the payment of his wergeld, if he is slain, and to be entitled to the rights of a freeman, whether he has an establishment of his own or is in the service of another. everyone shall be brought within a hundred and under surety, and his surety shall hold and bring him to the performance of every legal duty. *everyone over age shall take an oath that he will not be a thief or a thief's accomplice. every trustworthy man, who has never earned a bad reputation and who has never failed either in oath or in ordeal, shall be entitled to clear himself within the hundred by the simple oath of exculpation. for an untrustworthy man compurgators for the simple oath shall be selected within three hundreds, and for the triple oath, throughout the district under the jurisdiction of the borough court; otherwise he shall go to the ordeal. when a simple oath of exculpation is involved, the case shall be begun with a simple oath of accusation; but where a triple oath of exculpation is involved, it shall be begun with a triple oath of accusation. a thegn may have a trustworthy man give his oath of accusation for him. no man may vouch to warranty unless he has three trustworthy witnesses to declare whence he acquired the stock which is attached in his possession. the witnesses shall declare that, in bearing testimony on his behalf to the effect that he acquired it legally, they are speaking the truth, in accordance with what they saw with their eyes and heard with their ears. *no one shall buy anything over d. in value, either livestock or other property, unless he has four men as trustworthy witnesses, whether the purchase be made within a town or in the open country. if, however, any property is attached, and he who is in possession of it has no such witnesses, no vouching to warranty shall be allowed, but the property shall be given up to its rightful owner and also the supplementary payment, and the fine to the party who is entitled thereto. and if he has witnesses in accordance with what we have declared above, vouching to warranty shall take place three times. on the fourth occasion he shall prove his claim to it or give it back to its rightful owner. no one shall claim ownership where fraud is involved. *if anyone who is of bad reputation and unworthy of public confidence fails to attend the court meetings three times, men shall be chosen from the fourth meeting who shall ride to him, and he may then still find a surety, if he can. if he cannot, they shall seize him either alive or dead, and they shall take all that he has. and they shall pay to the accuser the value of his goods, and the lord shall take half of what remains and the hundred half. and if anyone, either kinsman or stranger, refuses to ride against him, he shall pay the king s. *the proved thief and he who has been discovered in treason against his lord, whatever sanctuary he seeks, shall never be able to save his life. he who in court tries to protect himself or one of his men by bringing a countercharge shall have wasted his words, and shall meet the charge brought by his opponent in such a way as the hundred court shall determine. no one shall entertain any man for more than three days, unless he is committed to this charge by the man whom he has been serving. and no one shall dismiss one of his men from his service until he is quit of every accusation which has been brought against him. *if anyone comes upon a thief and of his own accord lets him escape without raising the hue and cry, he shall make compensation by the payment of the thief's wergeld, or clear himself with the full oath, asserting that he did not know him to be guilty of any crime. and if anyone hears the hue and cry and neglects it, he shall pay the full fine for insubordination [ s] to the king, or clear himself by the full oath. *regarding thoroughly untrustworthy men, if anyone has forfeited the confidence of the hundred, and he has charges brought against him to such an extent that he is accused by three men at once, no other course shall be open to him but to go to the triple ordeal. if, however, his lord asserts that he has failed neither in oath nor in ordeal since the assembly was held at winchester, the lord shall choose two trustworthy men within the hundred - unless he has a reeve who is qualified to discharge this duty - and they shall swear that he has never failed in oath or ordeal or been convicted of stealing. if the oath is forthcoming, the man who is accused there shall choose whichever he will - either the simple ordeal or an oath equivalent to a pound in value, supported by compurgators found within the three hundreds, in the case of an object over d. in value. if they dare not give the oath, the accused shall go to the triple ordeal, which shall be opened by five compurgators selected by the accuser and he himself shall make a sixth. if the accused is proved guilty, on the first occasion he shall pay double value to the accuser and his wergeld to the lord who is entitled to receive his fine, and he shall appoint trustworthy sureties, that hence forth he will desist from all wrong-doing. and on the second occasion, if he is proved guilty, there shall be no compensation but to have his hands or his feet cut off or both, according to the nature of the offense. and if has wrought still greater crime, he shall have his eyes put out and his nose and ears and upper lip cut off or his scalp removed, whichever of these penalties is determined by those with whom rests the decision of the case; and thus punishment shall be inflicted, while, at the same time, the soul is preserved from injury. if, however, he escapes and avoids the ordeal, his surety shall pay the value of his goods to the plaintiff and the wergeld of the accused to the king or to the man who is entitled to receive his wergeld. and if the lord is accused of advising the man who had done wrong to escape, he shall choose five trustworthy men, and shall himself make a sixth, and shall clear himself of the accusation. if he succeeds in clearing himself, he shall be entitled to the wergeld. and if he fails, the king shall take the wergeld, and the thief shall be treated as an outlaw by the whole nation. every lord shall be personally responsible as surety for the men of his own household. and if any accusation is brought against one of them, he shall answer if within the hundred in which he is accused. and if he is accused and escapes, the lord shall pay the man's wergeld to the king. and if the lord is accused of advising him to escape, he shall clear himself with the help of five thegns, himself making a sixth. and if he fails to clear himself, he shall pay his own wergeld to the king, and the man shall be an outlaw towards the king. if a slave is found guilty at the ordeal, he shall be branded on the first occasion. and on the second occasion, he shall not be able to make any amends except by his head. *concerning untrustworthy men, if there is anyone who is regarded with suspicion by the general public, the king's reeve shall go and place him under surety so that he a may be brought to do justice to those who have made charges against him. if he has no surety, he shall be slain and buried in unconsecrated ground. and if anyone interposes in his defense, they shall both incur the same punishment. and he who ignores this and will not further what we have all determined upon shall pay s. to the king. the various boroughs shall have one common law with regard to exculpation. if a friendless man or one come from afar is so utterly destitute of friends as not to be able to produce a surety, on the first occasion that he is accused he shall go to prison, and wait there until he goes to god's ordeal where he shall experience whatever he can. verily, he who pronounces a more severe judgment upon whom is friendless or come from afar than upon one of his own acquaintances injures himself. *concerning perjury, if anyone swears a false oath on the relics and is convicted, he shall lose his hand or half his wergeld which shall be divided between the lord and the bishop. and henceforth he shall not be entitled to swear an oath, unless he makes amends to the best of his ability before god, and finds surety that ever afterwards he will desist from such perjury. *concerning false witness, if anyone has given testimony which is manifestly false, and is convicted thereof, his testimony henceforth shall be valueless, and he shall pay to the king or to the lord of the manor a sum equivalent to his healsfang [payment due only to those very closely related to a killed man]. special care must be taken to prevent lawlessness at sacred seasons and in sacred places. the greater a man is and the higher his rank, the more stringent shall be the amends which he shall be required to make to god and to men for lawless behavior. and ecclesiastical amends shall be diligently exacted in accordance with the directions contained in the canon law, and secular amends in accordance with secular law. if anyone slays a priest of the altar, he shall be both excommunicated and outlawed, unless he make amends to the best of his ability by pilgrimage, and likewise by the payment of compensation to the kin of the slain man, or else he shall clear himself by an oath equal in value to his wergeld. he shall begin to make amends to god and men within days, under pain of forfeiting all that he possesses. if an attempt is made to deprive a man in orders or a stranger of his goods or his life, the king shall act as his kinsman and protector unless he has some other. and such compensation as is fitting shall be paid to the king, or he shall avenge the deed to the uttermost. if a minister of the altar commits homicide or any other great crime, he shall be deprived of his ecclesiastical office and banished, and shall travel as a pilgrim as far as the pope appoints for him and zealously make amends. if he seeks to clear himself, he shall do so by the triple mode of proof. if he does not begin to make amends both to god and men within days, he shall be outlawed. if anyone binds or beats or deeply insults a man in holy orders, he shall make amends towards him and shall pay the fine due to the bishop for sacrilege, in accordance with the rank of the injured man, and to his lord or to the king the full fine for breach of his mund, or he shall clear himself by the full process of exculpation. if a man in holy orders commits a capital crime, he shall be arrested, and his cases shall be reserved for the bishop's decision. if a condemned man desires confession, he shall never be refused him or pay the king s. or he shall clear himself by selecting five men and be himself the sixth. *no condemned man shall be put to death during the sunday festival, unless he flees or fights, but he shall be arrested and kept in custody until the festival is over. if a freeman works during a church festival, he shall make amends by payment of his healsfang and make amends to god according to the directions given him. if as slave works, he shall undergo the lash or pay the fine, according to the nature of the offense. if a lord compels his slave to work during a church festival, he shall lose the slave, who shall then obtain the rights of a freeman and the lord shall pay a fine or clear himself. if a freeman breaks an ordained fast, he shall pay a fine. if a slave does so, he shall undergo the lash or pay the fine in accordance with the nature of the deed. if anyone openly causes a breach of the fast of lent by fighting or by intercourse with women or by robbery or by any great misdeed, he shall pay double compensation just as he must do during a high festival. if he denies the charge, he shall clear himself by the triple process of exculpation. *if anyone refuses by force the payment of ecclesiastical dues, he shall pay the full fine or he shall clear himself: he shall select men and himself make a twelfth. if he wounds anyone, he shall make amends and pay the full fine to the lord and redeem his hands from the bishop or lose them. if he kills a man, he shall be outlawed and pursued with hostility. if he so acts as to bring about his own death by setting himself against the law, no compensation shall be paid for him. if anyone injures one of the clergy, he shall make amends according to the rank of the person injured, either by the payment of his wergeld or a fine or by the forfeiture of all his property. *if anyone commits adultery, he shall make amends according to the nature of the offense. it is wicked adultery for a pious man to commit fornication with an unmarried woman, and much worse with the wife of another man or with any woman who has taken religious vows. *if anyone commits incest, he shall make amends according to the degree of relationship between them, either by the payment of wergeld or of a fine, or by the forfeiture of all his possessions. *if anyone does violence to a widow or maiden, he shall pay his wergeld. *if a woman commits adultery, her husband shall have all she possesses and she shall lose her nose and her ears. if a married man commits adultery with his own slave, he shall lose her and make amends to god and to men. *if anyone has a lawful wife and also a concubine, no priest shall perform for him any of the offices which must be performed for a christian man, until he desists and makes amends as the bishop shall direct. foreigners, if they will not regularize their unions, shall be driven from the land with their possessions, and shall depart in sin. *any murderer shall be given up to the kinsmen of the slain man. the bishop shall pronounce judgment. *if anyone plots against the king or his own lord, he shall forfeit his life and all that he possesses, unless he proves himself innocent by the triple ordeal. *if anyone violates the protection or a king, archbishop or bishop, he shall pay , , or pounds respectively as compensation. *anyone who fights at the king's court shall lose his life, unless pardoned by the king. *if a man unjustly disarms another, he shall compensate him by the payment of his healsfang. if he binds him, he shall compensate by the payment of half his wergeld. if anyone is guilty of a capital deed of violence while serving in the army, he shall lose his life or his wergeld. *if a man makes forcible entry into another man's house, he shall pay pounds to the king. if he is slain in such a case, no compensation shall be paid for his death. *anyone guilty of robbery shall restore the stolen goods and pay the injured man as much again and forfeit his wergeld to the king. *according to secular law, assaults upon houses, arson, theft which cannot be disproved, murder which cannot be denied, and treachery towards a man's lord are crimes for which no compensation can be paid. if anyone neglects the repair of fortifications or bridges or military service, he shall pay s. to the king or he shall clear himself with the support of compurgators out of nominated by the court. the whole nation shall assist in the repair of churches. if anyone unlawfully maintains an excommunicated person, he shall deliver him up in accordance with the law, and pay compensation to him to whom it belongs, and to the king his wergeld. anyone keeping and maintaining as excommunicated man or an outlaw shall risk losing his life and all his property. greater leniency shall be shown in passing judgment and in imposing penance on the weak than on the strong because they cannot bear an equally heavy burden. so we distinguish between age and youth, wealth and poverty, freemen and slaves, the sound and the weak. *when a man is an involuntary agent in evil-doing or does something unintentionally, he is more entitled to clemency. all my reeves shall provide for me from my own property and no man need give them anything as purveyance. if any of my reeves demands a fine, he shall forfeit his wergeld to me. the public has been so far too greatly oppressed by this. *if a man dies intestate [without a will], whether through negligence or sudden death, his lord shall take no more than his legal heriot. the property shall be divided among his wife and children and near kinsmen according to the share which belongs to him. heriots shall be fixed with regard to the rank of the person for whom they are paid. the heriot of any earl is eight horses, four saddled and four unsaddled, four helmets, four coats of chainmail, eight spears, eight shields, four swords, and mancuses of gold. the heriot of a king's thegn is four horses, two saddled and two unsaddled, two swords, four spears, four shields, four helmets, four coats of chain mail and mancuses of gold, but among the danes who possess rights of jurisdiction pounds. the heriot of an ordinary thegn is a horse and its trappings and his weapons or his healsfang in wessex, and in mercia pounds, and in east anglia pounds. the heriot of a man who stands in a more intimate relationship to the king shall be two horses, one saddled and one unsaddled, one sword, two spears, two shields, and mancuses of gold. the heriot of a man who is inferior in wealth is pounds. when a householder has dwelt all his time free from claims and charges, his wife and children shall dwell there unmolested by litigation. *every widow who remains a year without a husband shall do what she herself desires. if within the space of a year, she chooses a husband, she shall lose her morning gift and all the property she had from her first husband, and his nearest relatives shall take the land and property which she had held. and the second husband shall forfeit his wergeld to the king or the lord to whom it has been granted. and although she has been married by force, she shall lose her possessions, unless she leaves the man and returns home. and no widow shall be too hastily consecrated as a nun. and every widow shall pay heriots within a year without incurring a fine, if it has not been convenient for her to pay earlier. *no woman or maiden shall be forced to marry a man whom she dislikes, nor shall she be given for money, except the suitor desires of his own freewill to give something. if anyone sets his spear at the door to another man's house, he himself having an errand inside, or if anyone carefully lays any other weapons where they might remain quietly, and another seizes the weapon and works mischief with it, he shall pay compensation for it. he who owns the weapon may clear himself by asserting that the mischief was done without his desire or authority or advice or cognizance. *if anyone carries stolen goods home to his cottage and is detected, the owner shall have what he has tracked. the wife shall be clear of any charge of complicity unless the goods had been put under her lock and key or in her storeroom, her chest, or her cupboard. but no wife can forbid her husband from depositing anything in his cottage. until now it has been the custom for grasping persons to treat a child which lay in the cradle, even though it had never tasted food, as being guilty as though it were fully intelligent. i forbid this practice. the man who, through cowardice, deserts his lord or his comrades in an expedition, either by sea or by land, shall lose all he possesses and his own life, and the lord shall take back the property and the land which he had given him. and if he has land held by title-deed it shall pass into the king's hands. the heriots of the man who falls before his lord during a campaign, whether within the country or abroad, shall be remitted, and the heirs shall succeed to his land and property and make a very just division of the same. he who, with the cognisance of the shire, has performed the services demanded from a landowner on expedition, either by sea or by land, shall hold his land unmolested by litigation during his life, and at his death shall have the right of disposing of it or giving it to whomsoever he pleases. *every man is entitled to hunt in the woods and fields on his own property. but everyone, under pain of incurring the full penalty, shall avoid hunting on my preserves. there shall never be any interference with bargains successfully concluded or with the legal gifts made by a lord. every man shall be entitled to protection in going to and from assemblies, unless he is a notorious thief. *he who violates the law shall forfeit his wergeld to the king. and he who violates it again, shall pay his wergeld twice over. and if he is so presumptuous as to break it a third time, shall lose all he possesses. love god and follow his law and obey our spiritual leaders, for it is their duty to lead us to the judgment of god according to our works wrought. do what is right and good and guard against the hot fire of hell. god almighty have mercy upon us all, as his will may be. amen. the laws for london were: " . the gates called aldersgate and cripplegate were in charge of guards. . if a small ship came to billingsgate, one halfpenny was paid as toll; if a larger ship with sails, one penny was paid. ) if a hulk or merchantman arrives and lies there, four pence is paid as toll. ) from a ship with a cargo of planks, one plank is given as -toll. ) on three days of the week toll for cloth [is paid] on sunday and tuesday and thursday. ) a merchant who came to the bridge with a boat containing fish paid one halfpenny as toll, and for a larger ship one penny." ) - ) foreigners with wine or blubber fish or other goods and their tolls. (foreigners were allowed to buy wool, melted sheep fat [tallow], and three live pigs for their ships.) " . if the town reeve or the village reeve or any other official accuses anyone of having withheld toll, and the man replies that he has kept back no toll which it was his legal duty to pay, he shall swear to this with six others and shall be quit of the charge. ) if he declares that he has paid toll, he shall produce the -man to whom he paid it, and shall be quit of the charge. ) if, however, he cannot produce the man to whom he paid it, he shall pay the actual toll and as much again and five pounds to the king. ) if he vouches the taxgatherer to warranty [asserting] that he paid toll to him, and the latter denies it, he shall clear himself by the ordeal and by no other means of proof. . and we [the king and his counselors] have decreed that a man who, within the town, makes forcible entry into another man's -house without permission and commits a breach of the peace of the worst kind and he who assaults an innocent person on the king's highway, if he is slain, shall lie in an unhonored grave. ) if, before demanding justice, he has recourse to violence, but does not lose his life thereby, he shall pay five pounds for breach of the king's peace. ) if he values the goodwill of the town itself, he shall pay us thirty shillings as compensation, if the king will grant us -this concession." . no base coin or coin defective in quality or weight, foreign or english, may be used by a foreigner or an englishman. (in , a person found guilty of illicit coining was punished by loss of a hand.) judicial procedure there were courts for different geographical communities: shires, hundreds, and vills. the arrangement of the whole kingdom into shires was completed by after being united under king edgar. a shire was a large area of land, headed by an earl. a shire reeve or "sheriff" represented the royal interests in the shires and in the shire courts. this officer came to be selected by the king and earl of the shire to be a judicial and financial deputy of the earl and to execute the law. the office of sheriff, which was not hereditary, was also responsible for the administration of royal lands and royal accounts. the sheriff summoned the freemen holding land in the shire, four men selected by each community or township, and all public officers to meet twice a year at their "shiremotes". actually only the great lords - the bishops, earls, and thegns - attended. the shire court was primarily concerned with issues of the larger landholders. here the freemen interpreted the customary law of the locality. the earl declared the secular law and the bishop declared the spiritual law. they also declared the sentence of the judges. the earl usually took a third of the profits, such as fines and forfeits, of the shire court, and the bishop took a share. in time, the earls each came to supervise several shires and the sheriff became head of the shire and assumed the earl's duties there, such as heading the shire fyrd. the shire court also heard cases which had been refused justice at the hundredmote and cases of keeping the peace of the shire. the hundred was a division of the shire, having come to refer to a geographical area rather than a number of households. the monthly hundredmote could be attended by any freeman holding land (or a lord's steward), but was usually attended only by reeve, thegns, parish priest, and four representatives selected by each agrarian community or village - usually villeins. here transfers of land were witnessed. the sheriff, or a reeve in his place, presided over minor local criminal and peace and order issues. when the jurisdiction was in the hands of a sheriff, it was called the sheriff's tourn. all residents were expected to attend this court. when the jurisdiction was in private hands, it was called a leet court. leet jurisdiction derived from sac and soke jurisdiction. sac and soc jurisdiction was possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court. the sheriff usually held each hundred court, which heard civil cases. the suitors to these courts were the same as those of the shire courts. they were the judges who declared the law and ordered the form of proof, such as compurgatory oath and ordeal. they were customarily thegns, often twelve in number. they, as well as the king and the earl, received part of the profits of justice. summary procedure was followed when a criminal was caught in the act or seized after a hue and cry. every freeman over age twelve had to be in a hundred and had to follow the hue and cry. in , king ethelred in a law code ordered the sheriff and twelve leading magnates of each shire to swear to accuse no innocent man, nor conceal any guilty one. this was the germ of the later assize, and later still the jury. the integrity of the judicial system was protected by certain penalties: for swearing a false oath, bot as determined by a cleric who has heard his confession, or, if he has not confessed, denial of burial in consecrated ground. also a perjurer lost his oath-worthiness. swearing a false oath or perjury was also punishable by loss of one's hand or half one's wergeld. a lord denying justice, as by upholding an evildoing thegn of his, had to pay s. to the king for his disobedience. furthermore, if a lord protected a theow of his who had stolen, he had to forfeit the theow and pay his wer, for the first offense, and he was liable for all he property, for subsequent offenses. there was a bot for anyone harboring a convicted offender. if anyone failed to attend the gemot thrice after being summoned, he was to pay the king a fine for his disobedience. if he did not pay this fine or do right, the chief men of the burh were to ride to him, and take all his property to put into surety. if he did not know of a person who would be his surety, he was to be imprisoned. failing that, he was to be killed. but if he escaped, anyone who harbored him, knowing him to be a fugitive, would be liable pay his wer. anyone who avenged a thief without wounding anyone, had to pay the king s. as wite for the assault. "and if anyone is so rich or belongs to so powerful a kindred, that he cannot be restrained from crime or from protecting and harboring criminals, he shall be led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be - with the provision that he shall never return to his native district. and henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act." courts controlled by lords of large private estates had various kinds of jurisdiction recognized by the king: sac and soke [possession of legal powers of execution and profits of justice held by a noble or institution over inhabitants and tenants of the estate, exercised through a private court], toll [right to collect a payment on the sale of cattle and property] and team [right to hold a court to determine the honesty of a man accused of illegal possession of cattle], infangenetheof [the authority to judge and to hang and take the chattels of a thief caught on the property], and utfangenetheof [the authority to judge, punish, and take the chattels of a thief dwelling out of his liberty, and committing theft without the same, if he were caught within the lord's property]. some lords were even given jurisdiction over breach of the royal peace, ambush and treacherous manslaughter, harboring of outlaws, forced entry into a residence, and failure to answer a military summons. often this court's jurisdiction overlapped that of the hundred court and sometimes a whole hundred had passed under the jurisdiction of an abbot, bishop, or earl. a lord and his noble lady, or his steward, presided at this court. the law was administered here on the same principles as at the hundred court. judges of the leet [minor criminal jurisdiction] of the court of a large private estate were chosen from the constables and four representatives selected from each community, village, or town. the vill [similar to village] was the smallest community for judicial purposes. there were several vills in a hundred. before a dispute went to the hundred court, it might be taken care of by the head tithing man, e.g. cases between vills, between neighbors, and some compensations and settlements, namely concerning pastures, meadows, harvests, and contests between neighbors. in london, the hustings court met weekly and decided such issues as wills and bequests and commerce matters. the folkmote of all citizens met three times a year. each ward had a leet court. the king and his witan decided the complaints and issues of the nobility and those cases which had not received justice in the hundred or shire court. the witan had a criminal jurisdiction and could imprison or outlaw a person. the witan could even compel the king to return any land he might have unjustly taken. especially punishable by the king was "oferhyrnesse": contempt of the king's law. it covered refusal of justice, neglect of summons to gemot or pursuit of thieves, disobedience to the king's officers, sounding the king's coin, accepting another man's dependent without his leave, buying outside markets, and refusing to pay peter's pence. the forests were peculiarly subject to the absolute will of the king. they were outside the common law. their unique customs and laws protected the peace of the animals rather than the king's subjects. only special officials on special commissions heard their cases. the form of oaths for compurgation were specified for theft of cattle, unsoundness of property bought, and money owed for a sale. the defendant denied the accusation by sweating that "by the lord, i am guiltless, both in deed and counsel, and of the charge of which ... accuses me." a compurgator swore that "by the lord, the oath is clean and unperjured which ... has sworn.". a witness swore that "in the name of almighty god, as i here for ... in true witness stand, unbidden and unbought, so i with my eyes oversaw, and with my ears overheard, that which i with him say." if a theow man was guilty at the ordeal, he was not only to give compensation, but was to be scourged thrice, or a second geld [compensation] be given; and be the wite of half value for theows. this lawsuit between a son and his mother over land was heard at a shire meeting: "here it is declared in this document that a shire meeting sat at aylton in king cnut's time. there were present bishop aethelstan and earl ranig and edwin, the earl's son, and leofwine, wulfsige's son, and thurkil the white; and tofi the proud came there on the king's business, and bryning the sheriff was present, and aethelweard of frome and leofwine of frome and godric of stoke and all the thegns of herefordshire. then edwin, enneawnes son, came traveling to the meeting and sued his own mother for a certain piece of land, namely wellington and cradley. then the bishop asked whose business it was to answer for his mother, and thurkil the white replied that it was his business to do so, if he knew the claim. as he did not know the claim, three thegns were chosen from the meeting [to ride] to the place where she was, namely at fawley, and these were leofwine of frome and aethelsige the red and winsige the seaman, and when they came to her they asked her what claim she had to the lands for which her son was suing her. then she said that she had no land that in any way belonged to him, and was strongly incensed against her son, and summoned to her kinswoman, leofflaed, thurkil's wife, and in front of them said to her as follows: 'here sits leofflaed, my kinswoman, to whom, after my death, i grant my land and my gold, my clothing and my raiment and all that i possess.' and then she said to the thegns: 'act like thegns, and duly announce my message to the meeting before all the worthy men, and tell them to whom i have granted my land and all my property, and not a thing to my own son, and ask them to be witnesses of this.' and they did so; they rode to the meeting and informed all the worthy men of the charge that she had laid upon them. then thurkil the white stood up in the meeting and asked all the thegns to give his wife the lands unreservedly which her kinswoman had granted her, and they did so. then thurkil rode to st. aethelbert's minister, with the consent and cognizance of the whole assembly, and had it recorded in a gospel book." chapter the times: - william came from normandy, france, to conquer england. he claimed that the former king, edward, the confessor, had promised the throne to him when they were growing up together in normandy, if edward became king of england and had no children. the conquerer's men and horses came in boats powered by oars and sails. the conquest did not take long because of the superiority of his military expertise to that of the english. he organized his army into three groups: archers with bows and arrows, horsemen with swords and stirrups, and footmen with hand weapons. each group played a specific role in a strategy planned in advance. the english army was only composed of footmen with hand weapons such as spears and shields. they fought in a line holding up their shields to overlap each other and form a shieldwall. the defeat of the english was thought to have been presaged by a comet. at westminster, he made an oath to defend god's holy churches and their rulers, to rule the whole people subject to him with righteousness and royal providence, to enact and hold fast right law, and to utterly forbid rapine and unrighteous judgments. this was in keeping with the traditional oath of a new king. declaring the english who fought against him to be traitors, the conquerer declared their land confiscated. but he allowed those who were willing to acknowledge him to redeem their land by a payment of money. as william conquered the land of the realm, he parceled it out among the barons who fought with him so that each baron was given the holdings of an anglo-saxon predecessor, scattered though they were. the barons again made oaths of personal loyalty to him [fealty]. they agreed to hold the land as his vassals with future military services to him and receipt of his protection. they gave him homage by folding their hands within his and saying "i become your man for the tenement i hold of you, and i will bear you faith in life and member [limb] and earthly honor against all men". they held their land "of their lord", the king, by knight's service. the king had "enfeoffed" them [given them a fief: a source of income] with land. the theory that by right all land was the king's and that land was held by others only at his gift and in return for specified service was new to english thought. the original duration of a knight's fee until about was for his life; thereafter it was heritable. the word "knight" came to replace the word "thegn" as a person who received his position and land by fighting for the king. the exact obligation of knight's service was to furnish a fully armed horseman to serve at his own expense for forty days in the year. this service was not limited to defense of the country, but included fighting abroad. the baron led his own knights under his banner. the foot soldiers were from the fyrd or were mercenaries. every free man was sworn to join in the defense of the king, his lands and his honor, within england and without. the saxon governing class was destroyed. the independent power of earls, who had been drawn from three great family houses, was curtailed. most died or fled the country. some men were allowed to redeem their land by money payment if they showed loyalty to the conquerer. well-born women crowded into nunneries to escape norman violence. the people were deprived of their most popular leaders, who were excluded from all positions of trust and profit, especially all the clergy. the earldoms became fiefs instead of magistracies. the conquerer was a stern and fierce man and ruled as an autocrat by terror. whenever the people revolted or resisted his mandates, he seized their lands or destroyed the crops and laid waste the countryside and so that they starved to death. this example pacified others. his rule was strong, resolute, wise, and wary. he was not arbitrary or oppressive. the conquerer had a strict system of policing the nation. instead of the anglo-saxon self-government throughout the districts and hundreds of resident authorities in local courts, he aimed at substituting for it the absolute rule of the barons under military rule so favorable to the centralizing power of the crown. he used secret police and spies and the terrorism this system involved. this especially curbed the minor barons and preserved the public peace. the english people, who outnumbered the normans by to , were disarmed. curfew bells were rung at : pm when everyone had to remain in their own dwellings on pain of death and all fires and candles were to be put out. this prevented any nightly gatherings, assassinations, or seditions. order was brought to the kingdom so that no man dare kill another, no matter how great the injury he had received. the conquerer extended the king's peace on the highways, i.e. roads on high ground, to include the whole nation. any individual of any rank could travel from end to end of the land unharmed. before, prudent travelers would travel only in groups of twenty. the barons subjugated the english who were on their newly acquired land. there began a hierarchy of seisin of land so that there could be no land without its lord. also, every lord had a superior lord with the king as the overlord or supreme landlord. one piece of land may be held by several tenures. for instance, a, holding by barons' service of the king, may enfeoff b, a church, to hold of him on the terms of praying for the souls of his ancestors, and b may enfeoff a freeman c to hold of the church by giving it a certain percentage of his crops every year. there were about barons who held land directly of the king. other fighting men were the knights, who were tenants or subtenants of a baron. knighthood began as a reward for valor on the field of battle by the king or a noble. the value of a knight's fee was s. [ pounds] per year. altogether there were about fighting men holding land. the essence of norman feudalism was that the land remained under the lord, whatever the vassal might do. the lord had the duty to defend the vassals on his land. the vassal owed military service to the lord and also the service of attending the courts of the hundred and the county [formerly "shire"], which were courts of the king, administering old customary law. they were the king's courts on the principle that a crime anywhere was a breach of the king's peace. the king's peace that had covered his residence and household had extended to places where he might travel, such as highways, rivers, bridges, churches, monasteries, markets, and towns, and then encompassed every place, replacing the general public peace. infraction of the king's peace incurred fines to the king. this feudal bond based on occupancy of land rather than on personal ties was uniform throughout the realm. no longer could a man choose his lord and transfer his land with him to a new lord. he held his land at the will of his lord, to be terminated anytime the lord decided to do so. a tenant could not alienate his land without permission of his lord. in later eras, tenancies would be held for the life of the tenant, and even later, for his life and those of his heirs. this uniformity of land organization plus the new requirement that every freeman take an oath of loyalty directly to the king to assist him in preserving his lands and honor and defending him against his enemies, which oath would supersede any oath to any other man, gave the nation a new unity. the king could call men directly to the fyrd, summon them to his court, and tax them without intervention of their lords. and the people learned to look to the king for protection from abuse by their lords. english villani, bordarii, cottarii, and servi on the land of the barons were subjugated into a condition of "villeinage" servitude and became "tied to the land" so that they could not leave the land without their lord's permission, except to go on a pilgrimage. the villeins formed a new bottom class as the population's percentage of slaves declined dramatically. they held their land of their lord, the baron. to guard against uprisings of the conquered people, the barons used villein labor to build about a hundred great stone castles, with moats and walls with towers around them, at easily defensible positions such as hilltops all over the nation. a castle could be built only with permission of the king. a typical castle had a stone building of about four floors [a keep] on a small, steep hill. later it also had an open area surrounded by a stone curtain-wall with towers at the corners. around the outside of the wall were ditches and banks and perhaps a moat. one traveled over these via a drawbridge let down at the gatehouse of the enclosing wall. on either side of the gatehouse were chambers for the guards. arrows could be shot through slits in the enclosing walls. inside the enclosed area might be stables, a granary, barracks for the soldiers, and workshops. the only winter feed was hay, for which the horses, breeding animals, milkcow, and workoxen had a priority over other animals. the bulk of the cattle were usually slaughtered and salted. the castle building typically was entered by an outer wood staircase to the guard room on the second floor. the first [ground] floor had a well and was used as a storehouse and/or dungeons for prisoners. the second floor had a two-storied great hall, with small rooms and aisles around it within the thick walls. there was also a chapel area on the second floor. there were small areas of the third floor which could be used for sleeping. the floors were wood and were reached by a spiral stone staircase in one corner of the building. sometimes there was a reservoir of water on an upper level with pipes carrying the water to floors below. each floor had a fireplace with a slanted flue going through the wall to the outside. there were latrines in the corner walls with a pit or shaft down the exterior of the wall, sometimes to the moat. furs and wool clothes were hung on the walls there in the summer to deter the moths. the first floor had only arrow slits in the walls, but the higher floors had small windows. some curtain-wall castles did not have a central building. in these, the hall was built along the inside of the walls, as were other continuous buildings. the kitchens and chapels were in the towers. lodgings were in buildings along the curtain-walls, or on several floors of the towers. the great hall was the main room of the castle. the hall was used for meals and meetings at which the lord received homages, recovered fees, and held the view of frankpledge [free pledge in latin], in which freemen agreed to be sureties for each other and pay a claim directed at one of them if that man escaped. at the main table, the lord and his lady sat on benches with backs or chairs. the table was covered first with a wool cloth that reached to the floor, and then by a smaller white linen cloth. everyone else sat on benches at trestle tables, which consisted of planks on trestles and could be dismantled, e.g. at night. over the main door were the family arms. on the walls were swords ready for instant use. on the upper parts of the walls could be fox skins and perhaps a polecat skin, and keepers' and huntsmen's poles. there were often hawk perches overhead. at the midday dinner, courses were ceremonially brought in to music, and ritual bows were made to the lord. the food at the head table was often tasted first by a servant as a precaution against poison. hounds, spaniels, and terriers lay near the hearth and cats, often with litters, nestled nearby. they might share in dinner, but the lord may keep a short stick near him to defend morsels he meant for himself. hunting, dove cotes, and carp pools provided fresh meat. fish was compulsory eating on fridays, on fast days, and during lent. cooking was done outside on an open fire, roasting on spits and boiling in pots. some spits were mechanized with a cogged wheel and a weight at the end of a string. other spits were turned by a long handle, or a small boy shielded from the heat by a wet blanket, or by dogs on a treadmill. underneath the spit was a dripping pan to hold the falling juices and fat. mutton fat was used for candles. bread, pies, and pastry dishes were baked in an oven: a hole in a fireproof stone wall fitted with an iron door, in which wood was first burnt to heat the oven walls. it could also be used for drying fruit or melting tallow. fruits were also preserved in honey. salt was stored in a niche in the wall near the hearth and put on the table in a salt cellar which became more elaborate over the years. salt was very valuable and gave rise to the praise of a man as the salt of the earth. costly imported spices such as cinnamon, cloves, nutmeg, ginger, pepper, and a small quantity of sugar were kept in chests. pepper was always on the table to disguise the taste of tainted meat. spices were tried for medicinal use. drinks included wine, ale, cider from apples, perry from pears, and mead. people carried and used their own knives. there were no forks. spoons were of silver or wood. people also ate with their fingers and washed their hands before and after meals. it was impolite to dig into the salt bowl with a knife not previously wiped on bread or napkin, which was linen. it was unmannerly to wipe one's knife or one's greasy fingers on the tablecloth or, to use the tablecloth to blow one's nose. feasts were stately occasions with costly tables and splendid apparel. there were practical jokes, innocent frolics, and witty verbal debating with repartee. they played chess, checkers, and various games with cards and dice. most people could sing and some could play the lute. lighting of the hall at night was by oil lamps or candles on stands or on wall fixtures. for outside activities, a lantern [a candle shielded by a metal cage with panels of finely shaved horn: lant horn] was used. the residence of the lord's family and guests was at a screened off area at the extreme end of the hall or on a higher floor. chests stored garments and jewels. iron keys and locks were used for chests and doors. the great bed had a wooden frame and springs made of interlaced rope or strips of leather. it was covered with a feather mattress, sheets, quilts, fur covers, and pillows. drapery around the bed kept out cold drafts and provided privacy. there was a water bowl for washing in the morning. a chamber pot was kept under the bed for nighttime use. hay was used as toilet paper. the lord's personal servants slept nearby on benches or trundle beds. most of the gentlemen servants slept communally in a "knight's chamber". the floor of the hall was strewn with straw, on which common folk could sleep at night. there were stools on which to sit. cup boards (boards on which to store cups) and chests stored spices and plate. one-piece iron shears were available to cut cloth. handheld spindles were used for weaving; one hand held the spindle [a small stick weighted at one end] while the other hand alternately formed the thread and wound it around the spindle. on the roofs there were rampart walks for sentry patrols and parapets from which to shoot arrows or throw things at besiegers. each tenant of the demesne [household or messuage] of the king where he had a castle had to perform a certain amount of castle guard duty for its continuing defense. these knights performing castle-guard duty slept at their posts. bathing was done in a wooden tub located in the garden in the summer and indoors near the fire in winter. the great bed and tub for bathing were taken on trips with the lord. the entire household was of men, except for the lord's lady with a few lady companions. the ladies rode pillion [on a cushion behind the saddle] or in litters suspended between two horses. markets grew up outside castle walls. any trade on a lord's land was subject to "passage", a payment on goods passing through, "stallage", a payment for setting up a stall or booth in a market, and "pontage", a payment for taking goods across a bridge. the norman man was clean shaven on his face and around his ears and at the nape of the neck. his hair was short. he wore a long- sleeved under-tunic of linen or wool that reached to his ankles. over this the norman noble wore a tunic without sleeves, open at the sides, and fastened with a belt. over one shoulder was his cloak, which was fastened on the opposite shoulder by being drawn through a ring brooch and knotted. he wore tight thick cloth stockings to protect him from the mud and leather shoes. common men wore durable, but drab, wool tunics to the knee so as not to impede them in their work. they could roll up their stockings when working in the fields. a lady wore a high-necked, long- sleeved linen or wool tunic fitted at the waist and laced at the side, but full in the skirt, which reached to her toes. she wore a jeweled belt, passed twice around her waist and knotted in front. her hair was often in two long braids, and her head and ears covered with a white round cloth held in place by a metal circlet like a small crown. its ends were wound around her neck. in winter, she wore over her tunic a cloak edged or lined with fur and fastened at the front with a cord. clothes of both men and ladies were brightly colored by dyes or embroidery. the norman knight wore an over-tunic of leather or heavy linen on which were sewn flat rings of iron and a conical iron helmet with nose cover. he wore a sword at his waist and a metal shield on his back, or he wore his sword and his accompanying retainers carried spear and shield. norman customs were adopted by the nation. as a whole, anglo-saxon men shaved their beards and whiskers from their faces, but they kept their custom of long hair flowing from their heads. but a few kept their whiskers and beards in protest of the normans. everyone had a permanent surname indicating parentage, place of birth, or residence, such as field, pitt, lane, bridge, ford, stone, burn, church, hill, brook, green. other names came from occupations such as shepherd, carter, parker, fowler, hunter, forester, smith. still other came from personal characteristics such as black, brown, and white, short, round, and long. some took their names from animals such as wolf, fox, lamb, bull, hogg, sparrow, crow, and swan. others were called after the men they served, such as king, bishop, abbot, prior, knight. a man's surname was passed on to his son. those few coerls whose land was not taken by a baron remained free and held their land "in socage" and became known as sokemen. they were not fighting men, and did not give homage, but might give fealty, i.e. fidelity. many free sokemen were caught up in the subjugation by baron landlords and were reduced almost to the condition of the unfree villein. the services they performed for their lords were often indistinguishable. they might also hold their land by villein tenure, although free as a person with the legal rights of a freeman. the freeman still had a place in court proceedings which the unfree villein did not. great stone cathedrals were built in fortified towns for the conquerer's norman bishops, who replaced the english bishops. bishops periodically inspected the parishes in their dioceses to maintain discipline aqnd settle any matters that were beyond the local priest's competence, for instance the sacrament of confirmation, in which was conferred upon a christian soul a special strengthening grace after he confirmed his belief in the tenets of christianity. most of the existing and new monasteries functioned as training grounds for scholars, bishops, and statesmen rather than as retreats from the world's problems to the security of religious observance. the number of monks grew as the best minds were recruited into the monasteries. the conquerer made the church subordinate to him. bishops were elected only subject to the king's consent. the bishops had to accept the status of barons. homage was exacted from them before they were consecrated, and fealty and an oath afterward. the conquerer imposed knight's service on bishoprics, abbeys, and monasteries, which was usually commuted to a monetary amount. bishops had to attend the king's court. bishops could not leave the realm without the king's consent. no royal tenant or royal servant could be excommunicated, nor his lands be placed under interdict, without the king's consent. interdict could demand, for instance, that the church be closed and the dead buried in unconsecrated ground. no church rules could be made without his agreement to their terms. no letters from the pope could be received without the king's permission. the archbishop of canterbury was still recognized as a primary advisor to the king. over the years, the selection for this office frequently became a source of contention among king, pope, and clergy. men continued to give land to the church for their souls, such as this grant which started the town of sandwich: "william, king of the english, to lanfranc the archbishop and hugoni de montfort and richard son of earl gilbert and haimo the sheriff and all the thegns of kent, french and english, greeting. know ye that the bishop of bayeux my brother for the love of god and for the salvation of my soul and his own, has given to st. trinity all houses with their appurtenances which he has at sandwich and that he has given what he has given by my license." many private owners of churches gave them to cathedrals or monastic communities, partly to ensure their long term survival, and partly because of church pressure. when the land was all divided out, the barons had about / of it and the church about / . most of the barons had been royal servants. the king retained about / , including forests for hunting, for himself and his family and household, on which he built many royal castles and hundreds of manor [large private estate headed by a lord] houses throughout the nation. he built the massive white tower in london. it was tall with four turrets on top, and commanded a view of the river and bridge, the city and the surrounding countryside. the only windows were slits from which arrows could be shot. on the fourth and top floor was the council chamber and the gallery of the chapel. on the third floor was the banqueting hall, the sword room, and the chapel. the king and his household slept in apartments on these upper floors. stairs went up to the gateway entrance on the second floor, which were hidden by a wall. the garrison's barracks were on the first floor (ground floor). any prisoners were kept in cells at a level below the first floor. the other castles were often built at the old fortification burhs of alfred. each had a constable in charge, who was a baron. barons and earls had castle-guard duty in the king's castles. the conquerer was constantly moving about the land among his and his barons' castles, where he met with his magnates and conducted public business, such as deciding disputes about holding of land. near his own castles and other of his property, he designated many areas as royal hunting forests. anyone who killed a deer in these forests was mutilated, for instance by blinding. people living within the boundaries of the designated forestland could no longer go into nearby woods to get meat or honey, dead wood for firing, or live wood for building. swineherds could no longer drive pigs into these woods to eat acorns they beat down from oak trees. making clearings and grazing livestock in the designated forestland were prohibited. most of the nation was either wooded or bog at this time. london was a walled town of one and two story houses made of mud, twigs, and straw, with thatched roofs. it included a bundle of communities, townships, parishes, and lordships. there were churches, a goods market, a fish market, quays on the river, and a bridge over the river. streets probably named by this time include bread street, milk street, honey lane, wood street, and ironmonger lane. fairs and games were held outside the town walls in a field called "smithfield". the great citizens had the land qualifications of knights and ranked as barons on the conquerer's council. the freemen were a small percentage of london's population. there was a butchers' guild, a pepperers' guild, a goldsmiths' guild, the guild of st. lazarus, which was probably a leper charity (of which there were many in the s and s), the pilgrims' guild, which helped people going on pilgrimages, and four bridge guilds, probably for keeping the wooden london bridge in repair. men told the time by sundials, some of which were portable and could be carried in one's pocket. london could defend itself, and a ringing of the bell of st. paul's church could shut every shop and fill the streets with armed horsemen and soldiers led by a soldier portreeve. across the thames from london on its south side was southwark, a small trading and fishing settlement. the conquerer did not interfere with landholding in london, but recognized its independence as a borough in this writ: "william the king greets william, bishop of london, and gosfrith the portreeve, and all the burgesses [citizens] of london friendly. know that i will that you be worthy of all the laws you were worthy of in the time of king edward. and i will that every child shall be his father's heir after his father's day. and i will not suffer any man to do you wrong. god preserve you." so london was not subjected to the norman feudal system. it had neither villeins nor slaves. whenever kings asserted authority over it, the citizens reacted until the king "granted" a charter reaffirming the freedoms of the city and its independence. under pressure from the ecclesiastical judges, the conquerer replaced the death penalty by that of the mutilation of blinding, chopping off hands, and castrating offenders. castration was the punishment for rape. but these mutilations usually led to a slow death by gangrene. the normans used the anglo-saxon concepts of jurisdictional powers. thus when the conquerer confirmed "customs" to the abbot of ely, these were understood to include the following: ) sac and soke - the right to hold a court of private jurisdiction and enjoy its profits, ) toll - a payment in towns, markets, and fairs for goods and chattel bought and sold, ) team - persons might be vouched to warranty in the court, the grant of which made a court capable of hearing suits arising from the transfer of land, ) infangenthef - right of trying and executing thieves on one's land, ) hamsocne [jurisdiction over breach of the right of security and privacy in a man's house, e.g. by forcible entry], ) grithbrice - violation of the grantees' special peace, for instance that of the sheriff, ) fightwite - fine for a general breach of the peace, ) fyrdwite - fine for failure to appear in the fyrd. every shire, now called "county", had at least one burh, or defensible town. kings had appointed a royal moneyer in each burh to mint silver coins such as pennies for local use. on one side was the king's head in profile and on the other side was the name of the moneyer. when a new coinage was issued, all moneyers had to go to london to get the new dies. the conquerer's head faced frontally on his dies, instead of the usual profile used by former kings. the conquerer held and presided over his council three times a year, as was the custom, at easter, christmas, and whitsuntide, which coincided with the great christian festivals. this was an advisory council and consisted of the conquerer's wife and sons, earls, barons, knights, officers of the king's household, archbishops, and bishops. it replaced the witan of wise men. it dealt with fundamental matters of law, state, war, and church. earldoms and knighthoods were conferred and homages to the king were witnessed. bishops were nominated. attendance at the council, like attendance at courts, was regarded as a burden rather than a privilege. the conquerer's will was the motive force which under lay all the council's action. when it was administering royal justice, it was called the royal court. the justiciar was the head of all legal matters and he or the conquerer's wife represented the king at the royal court in his absence from the realm. the chamberlain was a financial officer of the household; his work was rather that of auditor or accountant. the chancellor headed the chancery and the chapel. other household offices were steward, butler, constable, and marshall. the treasurer was responsible for the collection and distribution of revenue and was the keeper of the royal treasure at the palace at winchester. he was also an important member of the household and sat in the exchequer at westminster, where he received the accounts of the sheriffs. the exchequer was composed of the justiciar as head, the chancellor, the constable, two chamberlains, the marshall and other experienced councilors. the word "exchequer" came from the chequered cloth on the table used to calculate in roman numerals the amount due and the amount paid. the word "calculate" derives from the word "calculi", meaning pebbles. it was a kind of abacus. the exchequer received yearly from the sheriffs of the counties taxes, fines, treasure trove, goods from wrecks, deodands, and movable property of felons, of persons executed, of fugitives, and of outlaws due to the crown. the conqueror presided yearly over feasts involving several thousand guests at westminster hall, which was feet by feet with a high ceiling, the largest hall in england. the conquerer's reign was a time of tentative expedients and simple solutions. he administered by issuing writs with commands or prohibitions. these were read aloud by the sheriffs in the county courts and other locations. administration was by the personal servants of his royal household, such as the chancellor, chamberlain, constable, marshals, steward, and butler. the language of government changed to latin. the chancellor was from the clergy and supervised the writers and clerks, who were literate, and appended the great seal before witnesses to documents. he also headed the staff of the royal chapel. the chamberlain was a financial officer who audited and accounted. the constable was responsible for supplies for the knights of the royal household. he also supervised the care of horses, hounds, hawks, and huntsmen, houndsmen, and foresters. the marshals came from less important families than the constable and they preserved order in the king's hall and recorded expenditures of the household officers on tallies. the steward was a great baron whose duties were chiefly ceremonial, such as placing the dishes before the king at banquets. sheriffs, who had first been head of shires, became powerful figures as the primary agents for enforcing royal edicts. there was no longer supervision of them by earls nor influence on them by bishops. they were customarily prominent barons. they collected the royal taxes, executed royal justice, and presided over and controlled the hundred and county courts. they were responsible for remitting a certain sum annually. if a sheriff received more than necessary, he retained the difference as his lawful profit of office. if he received less than necessary, he had to make up the difference from his own pocket. before rendering this account, he paid the royal benefactions to religious houses, provided for the maintenance of stock on crown lands, paid for the costs of provisions supplied to the court, and paid for traveling expenses of the king and his visitors. the payments were initially paid in kind: e.g. grain, cattle, horses, hounds, and hawks. sheriffs also took part in the keeping of castles and often managed the estates of the king. most royal writs were addressed to the sheriff and county courts. they also led the county militia in time of war or rebellion. at times, a sheriff usurped royal rights, used royal estates for his own purposes, encroached on private land and rights, extorted money, and collected revenues only for his own pockets. over the centuries, there was much competition for the authority to select the sheriff, e.g. by the king, the county court, the barons, and the exchequer. there was also much pressure to limit his term to one year. over time, the powers of the sheriffs slowly declined. royal income came from customary dues, profits of coinage and of justice, and revenues from the king's own estates. for war, there was no change in the custom that a man with five hides of land was required to furnish one heavy armed horseman for forty days service in a year. the fyrd was retained. a threat of a viking invasion caused the conquerer to reinstate the danegeld tax at s. per hide, which was three times its old rate. (the price of an ox was still about d.) to impose this tax uniformly, he sent commissioners to conduct surveys by sworn verdicts of appointed groups of local men. a detailed survey of land holdings and the productive worth of each was made in . the english called it the "doomsday book" because there was no appeal from it. the survey revealed, for instance, that one estate had "on the home farm five plough teams: there are also villeins and cotters with teams among them. there is a mill worth s. a year and one fishery, a church and four acres of meadow, wood for pigs and two stone quarries, each worth s. a year, and two nests of hawks in the wood and slaves." this estate was deemed to be worth s. a year. laxton "had carucates of land [assessed] to the geld. [there is] land for ploughs. there walter, a man of [the lord] geoffrey alselin's has plough and villeins and bordars [a bordar had a cottage and a small amount land in return for supplying small provisions to his lord] having ploughs and serfs and female serf and acres of meadow. wood [land] for pannage [foraging by pigs] league in length and half a league in breadth. in king edward's time it was worth pounds; now [it is worth] pounds." ilbert de laci has now this land, where he has twelve ploughs in the demesne; and forty-eight villani, and twelve bordars with fifteen ploughs, and three churches and three priests, and three mills of ten shillings. wood pastures two miles long, and one broad. the whole manor five miles long and two broad. value in king edward's time sixteen pounds, the same now. that manor of the town of coventry which was individually held was that of the countess of coventry, who was the wife of the earl of mercia. "the countess held in coventry. there are hides. the arable land employs ploughs. in the demesne lands there are ploughs and bondmen. there are villeins and bordars with ploughs. the mill there pay[s] shillings. the woodlands are miles long and the same broad. in king edward's time and afterwards, it was worth pounds [ s.], now only pounds by weight. these lands of the countess godiva nicholas holds to farm of the king." the survey shows a few manors and monasteries owned a salthouse or saltpit in the local saltworks, from which they were entitled to obtain salt. in total there were about , villani [former coerls regarded as customary, irremovable cultivator tenants]; , bordarii; , cotarii and cotseti [held land by service of labor or rent paid in produce], and , servi [landless laborers]. there are no more theows. this survey resulted in the first national tax system of about s. per hide of land. the survey also provided the conquerer with a summary of customs of areas. for instance, in oxfordshire, "anyone breaking the king's peace given under his hand and seal to the extent of committing homicide shall be at the king's mercy in respect of his life and members. that is if he be captured. and if he cannot be captured, he shall be considered as an outlaw, and anyone who kills him shall have all his possessions. the king shall take the possessions of any stranger who has elected to live in oxford and who dies in possession of a house in that town, and without any kinfolk. the king shall be entitled to the body and the possessions of any man who kills another within his own court or house excepting always the dower of his wife, if he has a wife who has received dower. the courts of the king and barons became schools of chivalry wherein seven year old noble boys became pages or valets, wore a dagger and waited upon the ladies of the household. at age fourteen, they were advanced to squires and admitted into more familiar association with the knights and ladies of the court. they perfected their skills in dancing, riding, fencing, hawking, hunting, jousting, and engaged in team sports in which the goal was to put the other side to rout. they learned the knightly art of war. enemy fighters were to be taken and held for ransom rather than killed. those engaging in rebellion were to be pardoned and restored to some or all of their lands and titles. lords' sons could be mutually exchanged with an enemy's as security for peace. after achieving knighthood, a man usually selected a wife from the court at which he grew up. parents tried to send their daughters to a household superior in social status not only to learn manners, but to make a good marriage. a girl who did not marry was often sent to a nunnery; a dowry was necessary before her acceptance. the following incidents of land tenure began (but were not firmly established until the reign of henry ii). each tenant, whether baron or subtenant, was to pay an "aid" in money for ransom if his lord was captured in war, for the knighthood of his lord's eldest son, and for the marriage of his lord's eldest daughter. the aid was theoretically voluntary. land could be held by an heir only if he could fight. the eldest son began to succeed to the whole of the lands in all military tenures. actually, william and his sons insisted on undivided succession rather than a strict application of the primogeniture rule that the eldest son inherit.younger sons of great houses became bishops. an heir of a tenant had to pay a heavy "relief" on succession to his estate. the relief replaced the heriot. if there was a delay in proving heirship or paying relief, the lord would hold the land and receive its income in the meantime, often a year. if an heir was still a minor or female, he or she passed into his lord's wardship, in which the lord had guardianship of the heir and possession of the estate, with all its profits. the mother was not made a minor's guardian. no longer was the estate protected by the minor's kin as his birthright. a female heir was expected to marry a man acceptable to the lord. the estate of an heiress and her land was generally sold to the highest bidder. if there were no heirs, the land escheated [reverted] to the lord. if a tenant committed felony, his land escheated to his lord. the word "felony" came from the latin word meaning "to deceive" and referred to the feudal crime of betraying or committing treachery against one's lord. astrologers resided with the families of the barons. people went to fortune tellers' shops. there was horse racing, steeple races, and chess for recreation. girls had dolls; boys had toy soldiers, spinning tops, toy horses, ships, and wooden models. the state of medicine is indicated by this medical advice brought to the nation by william's son after treatment on the continent: "if thou would have health and vigor shun cares and avoid anger. be temperate in eating and in the use of wine. after a heavy meal rise and take the air sleep not with an overloaded stomach and above all thou must respond to nature when she calls." the conquerer allowed jewish traders to follow him from normandy and settle in separate sections of the main towns. then engaged in long distance trade, money changing, and money lending. they loaned money for interest for the building of castles and cathedrals. christians were not allowed by the church to engage in this usury. the jews could not become citizens nor could they have standing in the local courts. instead, a royal justiciar secured justice for them. they could practice their own religion. william the conquerer was succeeded as king by his son william ii (rufus), who transgressed many of the customs of the nation to get more money for himself. he was killed by an arrow of a fellow hunter while they and william's younger brother henry were hunting together in a crown forest. henry then became king. the law the notion of the king's peace extended until it was the normal and general safeguard of the public order. the norman conquerors brought no code of written law. william's laws largely affirmed the laws of the nation as they were in the times of edward i. these are substantially all of the laws of william i: all freemen shall swear an oath of loyalty to william i and shall uphold his lands and honors and defend them against enemies and aliens. william will protect them and exact no more than legally owed service. if a frenchman summons an englishman for perjury, murder, theft, homicide or open robbery, the englishman shall defend himself by whichever method he prefers, either the ordeal of iron or trial by combat. the person defeated shall pay a fine to the king. if an englishman summons a frenchman and declines to prove the charge by ordeal or by combat, the frenchman shall clear himself by a comprehensive oath. for a charge of outlawry, an englishman shall clear himself by the ordeal of iron. when an englishman brings a charge of outlawry against a frenchman, the frechman will defend himself by combat or by a comprehensive oath, at the choice of the englishman. all the men whom i brought with me [normans] or who come after me shall enjoy my protection. if any of them is slain, his lord shall arrest the slayer within five days, if he can. if not, he shall begin to pay me a "murdrum" fine of marks of silver from the property of that lord as long as it lasts. if the property of the lord fails, the whole hundred in which the murder was committed shall pay in common what remains. all freemen shall be in a frankpledge, so that the frankpledge may bring him to justice, if he has committed an offense or the members of the frankpledge shall pay the claim unless clearing themselves of the charge of any knowledge of fraud by the runaway. the hundred and county courts shall be attended as before. those who are required to appear shall be summoned once. ad if they refuse to appear on the second summons, as ox [worth d.] shall be confiscated. and so for the third summons, another ox. and if they refuse the fourth summons, the "ceapgeld" [ s.] shall be paid and also the fine for insubordination. "everyone who wishes to be admitted to the benefit of the law and to be qualified to obtain legal rights shall be in frankpledge." in mercia, a surety has a month and a day to find an escaped person accused of larceny or robbery, or else shall swear with eleven compurgators that he had not known him to be a thief, that he was not accessory to his flight, and that he cannot find him. then he shall pay for the stolen goods and s. in lieu of the head of the accused man and d. to the jailor, a farthing for the spade, and s. to the king. every lord shall be personally responsible as surety for his servant so that, it an accusation is brought against him, he shall bring him for trial in the hundred court. and if he escapes while he is under the accusation, the lord shall pay his wergeld. and if the lord is accused of being an accessory to his flight, he shall clear himself with compurgators, and if he cannot, he shall pay compensation to the king; and the man shall be an outlaw. all freemen shall keep themselves supplied with arms and horses or pay the full fine of insubordination. all earls, barons, knights, tenants by serjeanty and all free men shall be ready to perform their service defending me against enemies and aliens, by virtue of their fiefs, which are hereditary. or pay the fine for insubordination. the heriot of an earl, which falls to the king, is horses - of them bridled and saddled - coats of mail, helmets, shields, lances and swords. of the other horses, shall be hunters and riding horses with bridlos and halters. the heriot of a baron is horses - bridled and saddled - coats of mail, helmets, shields, swords and lances. and of the other horses, shall be a hunter and a riding horse with bridles and halters. the heriot of a thegn of lower rank to his liege lord shall be discharged by (delivering up) his father's horse, as it was in the day of his death, his helmet, his shield, his coat of mail, and lance and his sword. and if he was without equipment, having neither horse nor arms, it shall be discharged by the payment of s. the heriot of a villain: he shall give to this lord the best animal that he has, either a horse, an ox, or a cow. and further all villeins shall be in frankpledge. for those who hold their land by the payment of rent, the legal heriot shall be the equivalent of a year's rent. no one shall entertain a man for more than days, unless he is committed to this charge by the man with whom he was formerly serving. and no one shall let any of his men leave him after an accusation has all men shall keep the law of edward relating to the tenure of estates. been brought against him. i prohibit the slaying or hanging of anyone for any offense, but his eyes shall be put out and he shall suffer castration, so the trunk remains alive as a sign of his treachery and wickedness. if a person violates this, he shall pay the insubordination fee. all cities, boroughs, castles, hundreds and wapentakes shall be guarded every night on all sides against malefactors and enemies, as our sheriffs, earldormen, reeves and other officials and servants best provide. the protection of the church is inviolable. whatever crime a man has committed, if he can make his way to a holy church, he shall have protection for life and limb. and if anyone lays hands on him there, he shall pay for anything he has taken and a fine of s. for a bishop's church, abbey or monastery, s. for a parish church, and s. for a chapel. "if a man wishes to prove against his lord that he has an agreement for his land, he must do so by means of his fellow-tenants whom he summons as witnesses, for he cannot do so by means of strangers." if a man slays another he shall pay manbot to the lord of the slain man in the amount of s. for a free man and s. for a slave. the wergeld of a thegn is pounds in mercia and pounds in wessex. the wergeld of a villain is s. ( s. would buy a stallion, s. a bull and s. a boar.) s. of the wergeld shall be paid to the widow and children and the relatives and orphans shall divide what remains among themselves. the archbishop shall have as compensation for breach of his protection s. in mercia, a bishop s., an earl s., a baron s.,and a sokeman d. if a man wounds another he shall pay for medical attendance and if he is wounded on the face, or a part which is visible, for every inch d., on the head or any hidden place, for every inch d., for every piece of bone drawn out of the wound d. if a man cuts off the hand or foot of another, he shall pay half his wergeld according to his inherited rank. for the thumb he shall pay half the value of his hand, for the finger next the thumb, s. according to the english reckoning (i.e. d. to the shilling), for the middle finger s., for the ring-finger s., for the little finger s., for the nail if it is cut away from the flesh, english s., for the nail of the little finger d. "if a man poisons another, he shall be slain or sent into permanent exile." there is a s. fine for violation of the king's peace or attack on people's houses or for premeditated waylaying. if anyone slays or assaults anyone who is traveling through the country on any of the following four highways, namely, watling street, ermine street, the fosse way, the icknied way, he violates the king's peace. (two of these streets extended the length of the kingdom and two extended across its width.) for the guarding of roads, every hides of the hundred shall supply a man between michaelmas and martinmas, or pay compensation for any livestock taken over the road, unless they have raised the hue and cry of been subject to force. a peasant is not to be harassed or ejected except for not performing his legal services. a peasant leaving the estate where he was born must be returned to it. if a father finds his daughter in adultery in his own or in his son-in-laws house, he may slay the adulterer. the same holds for a son and his mother during the father's lifetime. "he who assaults the wife of another man shall forfeit his wergeld to his lord." "if anyone assaults a woman he shall suffer castration as a penalty." "if a woman who is pregnant is sentenced to death or to mutilation, the sentence shall not be carried out until she is delivered." if anyone knocks out a man's eye by any kind of accident, he shall pay english shillings as compensation. and if he destroys the sight without displacing the pupil, he shall pay only half the sum. "if a man dies intestate [without a will], his children shall divide the inheritance equally among themselves." and if anyone comes upon a thief and of his own accord lets him escape, without raising the hue and cry, he shall make compensation by the payment of the thief's value or clear himself. "and if anyone hears the hue and cry and neglects it, he shall pay the fine for neglecting it to the king, or clear himself." if a man captures a thief without the hue and cry being given, the injured man shall pay s. as a fine for neglecting to arrest the thief. if theft is discovered on anyone's land and the thief is discovered, the lord of the estate and the thief's wife shall have half of his property and the claimants shall have their goods, if they find them. and with regard to the other half, if the theft is discovered in a district over which the lord has rights of jurisdiction, the wife shall lose her share and it shall pass to the lord. "further, we forbid the buying or selling of any livestock except within towns and before three trustworthy witnesses, likewise that of any second-hand goods without a surety and warrantor." the penalty is twice the value of the goods and the fine for insubordination. no one shall buy anything of d. in value, either livestock or other property, unless he has men as witnesses either from a town or a village. if anyone claims it and he has no witnesses and no warrantor, the goods shall be given up to the claimant and the fine shall be paid to the party who is entitled thereto. and if he has such witnesses, vouching to warranty shall take place three times; and on the fourth occasion he shall prove his ownership of it or deliver it up. if anyone has taken livestock into his care, whether horses or oxen or cows or sheep or pigs, the man who claims them shall pay d. and no more in return for the care of them, however many there are up to a hundred head of cattle. as for one pig, d, for one sheep, d., and so on up to d. and he shall give pledge and find surety, that if another man comes forward within a year and a day to claim them, he will bring it for decision to the court of the man who had taken them into his own care. strayed livestock and found property shall be exhibited in three parts of the neighborhood. anyone who claims it shall give pledge and surety and if another claims it within a year and a day, he will bring it for decision to the court of the man who found it. the attachment of livestock: if anyone desires to claim it as stolen, and is willing to give pledge and find surety for prosecuting his claim, he who has possession of it must name his warrantor if he has one. if not, he shall name his surety and his witnesses, and produce them at the appointed day and time, if he has them, and the claimant shall give a pledge with compurgators, and the other shall give the livestock into the hands of his warrantor or his surety, whichever of these he has. and if he has neither but has witnesses that he bought it in the public market and that he does not know whether his warrantor or his pledge is dead or alive, he shall swear to this along with his witnesses with a simple oath. in this way he shall lose his goods, but escape punishment, if they bear witness that he obtained a surety for them. and, in mercia, if he can produce neither warrantor nor witness, he shall lose the goods and pay in addition compensation to the claimant and forfeit is wergeld to his lord. and if he can prove that it is of his own breeding by means of witnesses drawn from three parts of his neighborhood he shall have won his case. there shall be no market or fair except in boroughs or castles or other enclosed or well-guarded places. weights and measures shall be stamped and reliable as before. "likewise if slaves have remained for a year and a day, without being claimed, in our cities or in our walled boroughs or in our castles, from that day they shall become free men." i forbid anyone to sell a christian out of the country, especially into heathen lands, or pay the fine for insubordination to me. anyone can set free a slave of his by presenting him to the sheriff in the county court and giving him the arms of a freeman, namely a lance and sword. if i cast your things overboard from a ship in fear of death, then you cannot bring a charge against me. the things that remained in the ship shall be divided in common according to the value of the goods originally belonging to each person. he who possesses livestock of the value of d. shall pay peter's pence, and then his laborers, herdsmen, and servants shall be exempt. otherwise he shall pay a fine of d. to the bishop and s. to the king. if a man accuses another of theft and the latter is a free man and can produce witnesses to prove that he is entitled to the benefit of the law, he shall clear himself by the simple oath (of exculpation). and those who have been (previously) accused shall clear themselves by the oath with selected compurgators, that is by means of qualified men nominated (by the court) of whom must act as the accused man's compurgators to clear him of the charge, if he can find as many to do so. and if he cannot find them, he shall defend himself against the charge by the ordeal. and the plaintiff shall swear by means of men nominated (by the court), of whom must act as his compurgators, that he does nothing through malice or for any other reason than to obtain his legal right. and if anyone is accused of breaking into a church or a treasury, and has no previous convictions, he shall clear himself with compurgators found among qualified men nominated (by the court). and if he has been previously accused, he shall clear himself with three times as many, namely with compurgators found among qualified men nominated (by the court). and if he cannot find them, he shall go to the triple ordeal, just as he had (to produce) a triple oath. and if he has previously paid compensation for theft, he shall go to the water ordeal. he who gives a false judgment shall forfeit his wergeld to his lord, unless he can swear on the holy relics that he did not know how to give a better decision. no one shall be condemned to death for a trivial crime, but another penalty shall be devised according to the nature and magnitude of the crime. he who makes an unjust judgment because of rage, malice, or bribery forfeits s. to the king and loses his right of jurisdiction. a judgment given in a case between those concerned cannot affect injuriously others who are not present. he who refuses to observe just law and just judgment shall forfeit a fine to the party who is entitled thereto, the king pounds, an earl s. and to all those who have a court in england. no one shall appeal to the king until he fails to obtain justice in the hundred or county courts. "when a man carries on a suit in any court other than that in which the king is present in person, and it is maintained against him that he has said something which he will not acknowledge - if he can prove by means of a trustworthy man, who has seen and heard all the suit, that he did not say it, then the validity of his word shall be admitted." "and if anyone who has charges brought against him in the hundred court to such an extent that men accuse him, he shall clear himself with compurgators." "no one shall make distraint of property whether in the county court or outside it, until he has demanded justice three times in the hundred or in the county courts." if the man against whom he is bringing his charge fails to appear the fourth time, he shall get leave to make distraint for what is his own. if anyone who is accused and against whom evidence of untrustworthiness is given fails three times to attend the court proceedings, and if, at the fourth meeting of the court, the summoners bring forward his three defections, he shall once more be asked to find a surety and appear before the court. and if he refuses, he shall be seized, alive or dead, and all that he has shall be taken, and the value of his goods shall be paid to the claimant, and the lord of the thief shall take half of what remains and the hundred half. one god shall be honored throughtout the kingdom. by charter, william granted to londoners all the rights they had in the time of king edward and willed that every child should be his father's heir. judicial procedure "ecclesiastical" courts were created for bishops to preside over cases concerning the cure of souls and criminal cases, in which the ordeal was used. when the conqueror did not preside over this court, an appeal could be made to him. the hundred and county courts now sat without clergy and handled only "civil" cases. they were conducted by the king's own appointed sheriff. only freemen and not bound villeins had standing in this court. they continued to transact their business in the english language. the local jurisdictions of thegns who had grants of sac and soke or who exercised judicial functions among their free neighbors were now called "manors" and their owners conducted a manor court. the conqueror's royal court ["curia regis"] replaced the witan. it was composed of those to whom william had made grants of land on the understanding that they should perform certain feudal services to him. when the conqueror wished to determine the national laws, he summoned twelve elected representatives of each county to declare on oath the ancient lawful customs and law as they existed in the time of the popular king edward the confessor. the recording of this law was begun. a person could spend months trying to catch up with the royal court to present a case. sometimes the conqueror sent the justiciar or commissioners to hold his royal court in the various districts. the commissioner appointed groups of local men to give a collective verdict upon oath for each trial he conducted. the conqueror allowed, on an ad hoc basis, certain high-level people such as bishops and abbots and those who made a large payment, to have land disputes decided by an inquiry of recognitors. besides royal issues, the royal court heard appeals from lower court decisions. it used english, norman, feudal, roman, and canon law legal principles to reach a decision, and was flexible and expeditious. the powers of the shire court were lessened by the expanding authority of the royal court. trial by combat could be used in two instances: ) a dispute between a frenchman and an englishman over seisin of land initiated by a writ of right, or ) a criminal appeal of felony brought by an englishman or frenchman against the other. each combatant first swore to the truth of his cause and undertook to prove by his body the truth of his cause by making the other surrender by crying "craven" [craving forgiveness]. the combatants used weapons like pickaxes and shields. presumably the man in the wrong would not fight as well because he was burdened with a guilty conscience. although this trial was thought to reflect god's will, it favored the physically fit and adept person. after losing the trial by combat, the guilty person would be punished appropriately. london had its own traditions. all london citizens met at its folkmote, which was held three times a year to determine its public officers, to raise matters of public concern, and to make ordinances. its criminal court had the power of outlawry as did the county courts. trade, land, and other civil issues were dealt with by the hustings court, which met every monday in the guildhall. the city was divided into wards, each of which was under the charge of an elected alderman [elder man]. (the election was by a small governing body and the most wealthy and reputable men and not a popular election.) the aldermen had special knowledge of the law and a duty to declare it at the hustings court. each alderman also conducted wardmotes in his ward and decided criminal and civil issues between its residents. within the wards were the guilds of the city. king william i decided a lawsuit regarding land on the basis of testimony of the county thus: "william, by god's grace king of the english, to bishop walkelin, {sheriff} hugh de port and his lieges of hampshire, greeting. i notify you that i have restored to archbishop thomas of york one hide of land pertaining to the church of mottisfont, as archbishop ealdred best had it at the time of king edward, in meadows and wood and pasture and in common pasturage for as many animals as the maximum he could have there at the time of king edward, as was testified before bishop [william] of durham and bertram de verdun and devised by the men of the county. farewell. witnesses: bishop william of durham and bertram de verdun." the royal court decided this case: "at length both parties were summoned before the king's court, in which there sat many of the nobles of the land of whom geoffrey, bishop of coutances, was delegated by the king's authority as judge of the dispute, with ranulf the vicomte, neel, son of neel, robert de usepont, and many other capable judges who diligently and fully examined the origin of the dispute, and delivered judgment that the mill ought to belong to st. michael and his monks forever. the most victorious king william approved and confirmed this decision." chapter the times: - king henry i, son of william the conquerer, furthered peace between the normans and native english by his marriage to a niece of king edward the confessor called matilda. she married him on condition that he grant a charter of rights undoing some practices of the past reigns of william i and william ii. peace was also furthered by the fact that henry i had been born in england and english was his native tongue. the private wars of lords were now replaced by less serious mock battles. henry was a shrewd judge of character and of the course of events, cautious before taking action, but decisive in carrying out his plans. he was faithful and generous to his friends. he showed a strong practical element of calculation and foresight. although illiterate, he was intelligent and a good administrator. he had an efficient intelligence gathering network and an uncanny knack of detecting hidden plans before they became conspiratorial action. he made many able men of inferior social position nobles, thus creating a class of career judges and administrators in opposition to the extant hereditary aristocracy. he loved books and built a palace at oxford to which he invited scholars for lively discussion. euclid's "elements" ", which deduced from axioms the properties of lines, circles, and spheres, was introduced into england. queen matilda served as regent of the kingdom in henry's absence, as william's queen had for him. both queens received special coronation apart from their husbands; they held considerable estates which they administered through their own officers, and were frequently composed of escheated honors. matilda was learned and a literary patron. she founded an important literary and scholastic center. her compassion was great and her charities extensive. in london she founded several almshouses and a caregiving infirmary for lepers. these were next to small monastic communities. she also had new roads and bridges built. henry issued charters restoring customs which had been subordinated to royal impositions by previous kings, which set a precedent for later kings. his coronation charter describes certain property rights he restored after the oppressive reign of his brother, william ii. "henry, king of the english, to samson the bishop, and urse of abbetot, and to all his barons and faithful vassals, both french and english, in worcestershire, greeting. [ .] know that by the mercy of god and by the common counsel of the barons of the whole kingdom of england i have been crowned king of this realm. and because the kingdom has been oppressed by unjust exactions, i now, being moved by reverence towards god and by the love i bear you all, make free the church of god; so that i will neither sell nor lease its property; nor on the death of an archbishop or a bishop or an abbot will i take anything from the demesne of the church or from its vassals during the period which elapses before a successor is installed. i abolish all the evil customs by which the kingdom of england has be unjustly oppressed. some of those evil customs are here set forth. [ .] if any of my barons or of my earls or of any other of my tenants shall die his heir shall not redeem his land as he was wont to do in the time of my brother, but he shall henceforth redeem it by means of a just and lawful relief. similarly the men of my barons shall redeem their lands from their lords by means of a just and lawful relief. [ .] if any of my barons or of my tenants shall wish to give -in marriage his daughter or his sister or his niece or his cousin, he shall consult me about the matter; but i will neither seek payment for my consent, nor will i refuse my permission, unless he wishes to give her in marriage to one of my enemies. and if, on the death of one of my barons or of one of my tenants, a daughter should be his heir, i will dispose of her in marriage and of her lands according to the counsel given me by my barons. and if the wife of one of my tenants shall survive her husband and be without children, she shall have her dower and her marriage portion [that given to her by her parents], and i will not give her in marriage unless she herself consents. [ .] if a widow survives with children under age, she shall have her dower and her marriage portion, so long as she keeps her body chaste; and i will not give her in marriage except with her consent. and the guardian of the land, and of the children, shall be either the widow or another of their relations, as may seem more proper. and i order that -my barons shall act likewise towards the sons and daughters -and widows of their men. [ .] i utterly forbid that the common mintage [a forced levy to prevent loss to the king from depreciation of the -coinage], which has been taken from the towns and counties, shall henceforth be levied, since it was not so levied in the time of king edward [the confessor]. if any moneyer or other person be taken with false money in his possession, let true justice be visited upon him. [ .] i forgive all pleas and all debts which were owing to my brother, except my own proper dues, and except those things which were agreed to belong to the inheritance of others, or to concern the property which justly belonged to others. and if anyone had promised anything for his heritage, i remit it, and i also remit all 'reliefs' which were promised for direct inheritance. [ .] if any of my barons or of my men, being ill, shall give away or bequeath his movable property, i will allow that it shall be bestowed according to his desires. but if, prevented either by violence or through sickness, he shall die intestate as far as concerns his movable property, his widow or his children, or his relatives or one his true men shall make such division for the sake of his soul, as may seem best to them. [ .] if any of my barons or of my men shall incur a forfeit, he shall not be compelled to pledge his movable property to an unlimited amount, as was done in the time of my father [william i] and my brother; but he shall only make payment -according to the extent of his legal forfeiture, as was done before the time of my father and in the time of my earlier predecessors. nevertheless, if he be convicted of breach of faith or of crime, he shall suffer such penalty as is just. [ .] i remit all murder fines which were incurred before the day on which i was crowned king; and such murder fines as shall now be incurred shall be paid justly according to the law of king edward [by sureties]. [ .] by the common counsel of my barons i have retained the forests in my own hands as my father did before me. [ .] the knights, who in return for their estates perform military service equipped with a hauberk [long coat] of mail, shall hold their demesne lands quit of all gelds [money payments] and all labor services; i make this concession as my own free gift in order that, being thus relieved of so great a burden, they may furnish themselves so well with horses and arms that they may be properly equipped to discharge my service and to defend my kingdom. [ .] i establish a firm peace in all my kingdom, and i order that this peace shall henceforth be kept. [ .] i restore to you the law of king edward together with such emendations to it as my father [william i] made with the counsel of his barons. [ .] if since the death of my brother, king william [ii], anyone shall have seized any of my property, or the property of any other man, let him speedily return the whole of it. if he does this no penalty will be exacted, but if he retains any part of it he shall, when discovered, pay a heavy penalty to me. witness: maurice, bishop of london; william, bishop-elect of winchester; gerard, bishop of herefore; henry the earl; simon the earl; walter giffard; robert of montfort-sur-risle; roger bigot; eudo the steward; robert, son of haimo; and robert malet. at london when i was crowned. farewell." henry took these promises seriously, which resulted in peace and justice. royal justice became a force to be reckoned with by the multiplication of justices. henry had a great respect for legality and the forms of judicial action. he became known as the "lion of justice". the payment of queen's gold, that is of a mark of gold to the queen out of every hundred marks of silver paid, in the way of fine or other feudal incident, to the king, probably dates from henry i's reign. a woman could inherit a fief if she married. the primary way for a man to acquire control of land was to marry an heiress. if a man were in a lower station than she was, he had to pay for his new social status as well as have royal permission. a man could also be awarded land which had escheated to the king. if a noble woman wanted to hold land in her own right, she had to make a payment to the king. many widows bought their freedom from guardianship or remarriage from the king. women whose husbands were at war also ran the land of their husbands. barons were lords of large holdings of farmland called "manors". many of the lesser barons left their dark castles to live in semi- fortified stone houses, which usually were of two rooms with rug hangings for drafts, as well as the sparse furniture that had been common to the castle. there were shuttered windows to allow in light, but which also let in the wind and rain when open. the roof was of thatch or narrow overlapping wood shingles. the stone floor was strewn with hay and there was a hearth near the center of the floor, with a louvered smoke hole in the timber roof for escape of smoke. there were barns for grain and animals. beyond this area was a garden, orchard, and sometimes a vineyard. the area was circumscribed by a moat over which there was a drawbridge to a gatehouse. the smaller room was the lord and lady's bedroom. it had a canopied bed, chests for clothing, and wood frames on which clothes could be hung. life on the manor revolved around the larger room, or hall, where the public life of the household was passed. there, meals were served. the daily diet typically consisted of milk, soup, porridge, fish, vegetables, and bread. open hospitality accompanied this communal living. there was little privacy. manor household villeins carried the lord's sheaves of grain to the manor barn, shore his sheep, malted his grain, and chopped wood for his fire. at night some slept on the floor of the hall. others, who were cottars and bordars, had their own dwellings nearby. the manor house of lesser lords or knights was still built of wood, although it often had a stone foundation. about % of the land was arable land, about % was common pasture land (for grazing only) or meadow land (near a stream or river and used for hay or grazing), and about % was woodland. there were these types of land and wasteland on each manor. the arable land was allotted to the villeins in strips to equalize the best and worst land and their distance from the village where the villeins lived. there was three-way rotation of wheat or rye, oats or barley, and fallow land. cows, pigs, sheep, and fowl were kept. the meadow was allocated for hay for the lord's household and each villein's. the villeins held land of their lord for various services such as agricultural labor or raising domestic animals. the villeins worked about half of their time on their lord's fields [his demesne land], which was about a third of the farmland. this work was primarily to gather the harvest and to plough with oxen, using a yoke over their shoulders, and to sow in autumn and lent. they threshed grain on barn floors with flails cut from holly or thorn, and removed the kernels from the shafts by hand. work lasted from sunrise to sunset and included women and children. the older children could herd geese and pigs, and set snares for rabbits. the young children could gather nuts and berries in season and other wild edibles, and could pick up little tufts of wool shed by sheep. the old could stay in the hut and mind the children, keep the fire going and the black pot boiling, sew, spin, patch clothes, and cobble shoes. the old often suffered from rheumatism. many people had bronchitis. many children died of croup [inflammation of the respiratory passages]. life expectancy was probably below thirty-five. the villein retained his customary rights, his house and land and rights of wood and hay, and his right in the common land of his township. customary ways were maintained. the villeins of a manor elected a reeve to communicate their interests to their lord, usually through a bailiff, who directed the labor. sometimes there was a steward in charge of several of a lord's manors, who also held the manorial court for the lord. the steward held his land of the lord by petty serjeanty, which was a specific service to the lord. other serjeanty services were carrying the lord's shield and arms, finding attendants and esquires for knights, helping in the lord's hunting expeditions, looking after his hounds, bringing fuel, doing carpentry, and forging irons for ploughs. the woodward preserved the timber. the messer supervised the harvesting. the hayward removed any fences from the fields after harvest to allow grazing by cattle and sheep. the coward, bullard, and calvert tended the cows, bulls, and calves; the shepherd, the sheep; and the swineherds the pigs. the ponder impounded stray stock. there were varieties of horses: war horses, riding horses, courier horses, pack horses, and plough horses. the majority of manors were coextensive with a single village. the villeins lived in the village in one-room huts enclosed by a wood fence, hedge, or stone wall. in this yard was a garden of onions, leeks, mustard, peas, beans, parsley, garlic, herbs, and cabbage and apple, pear, cherry, quince, and plum trees, and beehives. the hut had a high-pitched roof thatched with reeds or straw and low eaves reaching almost to the ground. the walls are built of wood-framing overlaid with mud or plaster. narrow slits in the walls serve as windows, which have shutters and are sometimes covered with coarse cloth. the floor is dirt and may be covered with straw or rushes for warmth, but usually no hearth. in the middle is a wood fire burning on a hearthstone, which was lit by making a spark by striking flint and iron together. the smoke rose through a hole in the roof. at one end of the hut was the family living area, where the family ate on a collapsible trestle table with stools or benches. their usual food was beans and peas, oatmeal gruel, butter, cheese, vegetables, honey, rough bread made from a mixture of wheat, barley, and rye flour, herrings or other salt fish, and some salted or smoked bacon. butter had first been used for cooking and as a medicine to cure constipation. for puny children it could be salted down for the winter. the bread had been roasted on the stones of the fire; later there were communal ovens set up in villages. cooking was done over the fire by boiling in iron pots hung from an iron tripod, or sitting on the hot stones of the fire. they ate from wood bowls using a wood spoon. when they had fresh meat, it could be roasted on a spit. liquids were heated in a kettle. with drinking horns, they drank water, milk, buttermilk, apple cider, mead, ale made from barley malt, and bean and vegetable broth. they used jars and other earthenware, e.g. for storage of salt. they slept on straw mattresses or sacks on the floor or on benches. the villein regarded his bed area as the safest place in the house, as did people of all ranks, and kept his treasures there, which included his farm implements, as well as hens on the beams, roaming pigs, and stalled oxen, cattle, and horses, which were at the other end of the hut. fires were put out at night to guard against fire burning down the huts. the warmth of the animals then helped make the hut warm. around the room are a couple of chests to store salt, meal, flour, a broom made of birch twigs, some woven baskets, the distaff and spindle for spinning, and a simple loom for weaving. all clothes were homemade. they were often coarse, greasy wool and leather made from their own animals. the man wore a tunic of coarse linen embroidered on the sleeves and breast, around with he wore a girdle of rope, leather, or folded cloth. sometimes he also wore breeches reaching below the knee. the woman wore a loose short-sleeved gown, under which was a tight fitting garment with long loose sleeves, and which was short enough to be clear of the mud. if they wore shoes, they were clumsy and patched. some wore a hood-like cap. for really bad weather, a man wore on his head a hood with a very elongated point which could be wrapped around his neck. sometimes a short cape over the shoulders was attached. linen was too expensive for commoners. the absence of fresh food during the winter made scurvy prevalent; in the spring, people eagerly sought "scurvy grass" to eat. occasionally there would be an outbreak of a nervous disorder due to the ergot fungus growing in the rye used for bread. this manifested itself in apparent madness, frightening hallucinations, incoherent shouting, hysterical laughing, and constant scratching of itching and burning sensations. the villein and his wife and children worked from daybreak to dusk in the fields, except for sundays and holydays. he had certain land to farm for his own family, but had to have his grain milled at his lord's mill at the lord's price. he had to retrieve his wandering cattle from his lord's pound at the lord's price. he was expected to give a certain portion of his own produce, whether grain or livestock, to his lord. however, if he fell short, he was not put off his land. the villein, who worked the farm land as his ancestor ceorl had, now was so bound to the land that he could not leave or marry or sell an ox without his lord's consent. if the manor was sold, the villein was sold as a part of the manor. when his daughter or son married or if he sent his son to school,he had to pay a "merchet" to his lord. he could not have a son educated without the lord's permission, and this usually involved a fee to the lord. his best beast at his death, or "heriot", went to his lord. if he wanted permission to live outside the manor, he paid "chevage" yearly. woodpenny was a yearly payment for gathering dead wood. sometimes a "tallage" payment was taken at the lord's will. the villein's oldest son usually took his place on his land and followed the same customs with respect to the lord. for an heir to take his dead ancestor's land, the lord demanded payment of a "relief", which was usually the amount of a year's income but sometimes as much as the heir was willing to pay to have the land. the usual aids were also expected to be paid. a large village also had a smith, a wheelwright, a millwright, a tiler and thatcher, a shoemaker and tanner, a carpenter wainwright and carter. markets were about twenty miles apart because a farmer from the outlying area could then carry his produce to the nearest town and walk back again in the daylight hours of one day. in this local market he could buy foodstuffs, livestock, household goods, fuels, skins, and certain varieties of cloth. the cloth was crafted by local weavers, dyers, and fullers. the weaver lived in a cottage with few and narrow windows and little furniture. he worked in the main, and sometimes the only, room. first the raw wool was washed with water at the front door to remove the grease. then its fibers were disentangled and made fine with hand cards with thistle teeth, usually by the children. then it was spun by a spinning wheel into thread, usually by the wife. on a double frame loom, a set of parallel threads was strung lengthwise. a device worked by a pedal lifted half of these threads --every other thread--while the other half remained in place. between the lifted threads and the stationary threads a shuttle was thrown by the weaver from one hand to another. then the threads which had remained stationary were raised by a second pedal and the shuttle thrown back. the shuttle carried a spool so that, as it moved, it left a thread behind it running crosswise or at right angles to the lengthwise threads and in and out between them. the lengthwise threads were called the "warp"; the shuttle thread was the "woof" or the "weft".in making cloth, it was the warp which, as the loom moved, took the worst beating. with the constant raising and lowering, these treads would wear and break, whereas the weft on which there was little strain remained intact. none of the cotton yarn which the old-fashioned wheels had spun was strong enough for warp. so it was necessary to use linen thread for the warp. since one loom could provide work for about six spinners, the weaver had his wool spun by other spinners in their cottages. sometimes the master weaver had an apprentice or workman working and living with him, who had free board and lodging and an annual wage. then a fuller made the cloth thick and dense by washing, soaping, beating, and agitating it, with the use of a community watermill which could be used by anyone for a fixed payment. the cloth dried through the night on a rack outside the cottage. the weaver then took his cloth, usually only one piece, to the weekly market to sell. the weavers stood at the market holding up their cloth. the cloth merchant who bought the cloth then had it dyed or dressed according to his requirements. its surface could be raised with teazleheads and cropped or sheared to make a nap. some cloth was sold to tailors to make into clothes. often a weaver had a horse for travel, a cow for milk, chickens for eggs, perhaps a few cattle, and some grazing land. butchers bought, slaughtered, and cut up animals to sell as meat. some was sold to cooks, who sold prepared foods. the hide was bought by the tanner to make into leather. the leather was sold to shoemakers and glovemakers. millers bought harvested grain to make into flour. flour was sold to bakers to make into breads. wood was bought by carpenters and by coopers, who made barrels, buckets, tubs, and pails. tilers, oilmakers and rope makers also bought raw material to make into finished goods for sale. wheelwrights made ploughs, harrows, carts, and later wagons. smiths and locksmiths worked over their hot fires. games with dice were sometimes played. in winter, youths ice- skated with bones fastened to their shoes. they propelled themselves by striking the ice with staves shod with iron. on summer holydays, they exercised in leaping, shooting with the bow, wrestling, throwing stones, and darting a thrown spear. the maidens danced with timbrels. since at least , children's toys included dolls, drums, hobby horses, pop guns, trumpets, and kites. the cold, indoors as well as outdoors, necessitated that people wear ample and warm garments. men and women of position dressed in long full cloaks reaching to their feet, sometimes having short full sleeves. the cloak generally had a hood and was fastened at the neck with a brooch. underneath the cloak was a simple gown with sleeves tight at the wrist but full at the armhole, as if cut from the same piece of cloth. a girdle or belt was worn at the waist. when the men were hunting or working, they wore gown and cloak of knee length. men wore stockings to the knee and shoes. the fashion of long hair on men returned. the nation grew with the increase of population, the development of towns, and the growing mechanization of craft industries. there were watermills for crafts and for supplying and draining water in all parts of the nation. in flat areas, slow rivers could be supplemented by creating artificial waterfalls, for which water was raised to the level of reservoirs. there were also some iron- smelting furnaces. coal mining underground began as a family enterprise. stone bridges over rivers could accommodate one person traveling by foot or by horseback and were steep and narrow. the wheelbarrow came into use to cart materials for building castles and cathedrals. merchants, who had come from the low end of the knightly class or high end of the villein class, settled around the open market areas, where main roads joined. they had plots narrow in frontage along the road and deep. their shops faced the road, with living space behind or above their stores. town buildings were typically part stone and part timber as a compromise between fire precautions and expense. towns, as distinct from villages, had permanent markets. as towns grew, some became boroughs by paying a fee to obtain a charter for self-government from the king giving the town judicial and commercial freedom. they were literate enough to do accounts. so they did their own valuation of the sum due to the crown so as not to pay the sheriff any more than that. these various rights were typically expanded in future times, and the towns received authority to collect the sum due to the crown rather than the sheriff. this they did by obtaining a charter renting the town to the burgesses at a fee farm rent equal to the sum thus deducted from the amount due from the county. the freemen were "free of the borough", which meant they had exclusive rights and privileges with respect to it. selling wholesale could take place only in a borough. burgesses were free to marry. they were not subject to defense except of the borough. they were exempt from attendance at county and hundred courts. the king assessed a tallage [ad hoc tax] usually at ten per cent of property or income. in the boroughs, merchant and manufacturing guilds controlled prices and assured quality. the head officer of the guild usually controlled the borough, which excluded rival merchant guilds. a man might belong to more than one guild, e.g. one for his trade and another for religion. the frankpledge system prevailed in the boroughs. craft guilds grew up in the towns, such as the tanners at oxford, which later merged with the shoemakers into a cordwainers' guild. there were weavers' guilds in several towns, including london, which were given royal sanction and protection for annual payments (twelve pounds of silver for london). they paid an annual tribute and were given a monopoly of weaving cloth within a radius of several miles. guild rules covered attendance of the members at church services, the promotion of pilgrimages, celebration of masses for the dead, common meals, relief of poor brethren and sisters, the hours of labor, the process of manufacture, the wages of workmen, and technical education. king henry standardized the yard as the length of his own arm. trades and crafts, each of which had to be licensed, grouped together by specialty in the town. cloth makers, dyers, tanners, and fullers were near an accessible supply of running water, upon which their trade depended. streets were often named by the trade located there, such as butcher row, pot row, cordwainer row, ironmonger row, wheeler row, and fish row. hirers of labor and sellers of wheat, hay, livestock, dairy products, apples and wine, meat, poultry, fish and pies, timber and cloth all had a distinct location. some young men were apprenticed to craftsmen to assist them and learn their craft. london had bought the right to have an elected mayor. the norman word "mayor" replaced "portreeve". henry i granted the londoners the right to elect a sheriff and a justiciar from among themselves. london had at least twenty wards, each governed by its own alderman. most of them were named after people. london was ruled by sixteen families linked by business and marriage ties. these businesses supplied luxury goods to the rich and included the goldsmiths [sold cups, dishes, girdles, mirrors, purses knives, and metal wine containers with handle and spout], vintners [wine merchants], mercers [sold textiles, haberdashery, combs, mirrors, knives, toys, spices, ointments, and potions], drapers, and pepperers, which later merged with the spicers to become the "grocers", skinners, tanners, shoemakers, woolmen, weavers, fishmongers, armorers, and swordsmiths. there were bakehouses at which one could leave raw joints of meat to be cooked and picked up later. these businesses had in common four fears: royal interference, foreign competition, displacement by new crafts, and violence by the poor and escaped villeins who found their way to the city. when a non-freeholder stayed in london he had to find for frankpledge, three sureties for good behavior. failure to do so was a felony and the ward would eject him to avoid the charge of harboring him with its heavy fine. the arrival of ships with cargoes from continental ports and their departure with english exports was the regular waterside life below london bridge. many foreign merchants lived in london. imports included timber, hemp, fish, and furs. there was a fraternal organization of citizens who had possessed their own lands with sac and soke and other customs in the days of king edward. there were public bathhouses, but they were disreputable. a lady would take an occasional bath in a half cask in her home. the church warned of evils of exposing the flesh, even to bathe. middlesex county was london's territory for hunting and farming. all london craft work was suspended for one month at harvest time. london received this charter for self-government and freedom from the financial and judicial organization of the county: "henry, by the grace of god, king of england, to the archbishop of canterbury and the bishops, abbots, earls, barons, justiciars, sheriffs and all his loyal subjects, both french and english, throughout the whole of england - greeting. . -be it known to you that i have granted middlesex to my citizens of london to be held on lease by them and their heirs of me and my heirs for pounds paid by tale [yearly], upon these terms: that the citizens themselves [may] appoint a sheriff, such as they desire, from among themselves, and a justiciar, such as they desire, from among themselves, to safeguard the pleas of my crown [criminal cases] and to conduct such pleas. and there shall be no other justiciar over the men of london. . -and the citizens shall not take part in any [civil] case whatsoever outside the city walls. - - ) and they shall be exempt from the payment of scot and danegeld and the murder fine. - - ) and none of them shall take part in trial by combat. - - ) and if any of the citizens has become involved in a plea of the crown, he shall clear himself, as a citizen of london, by an oath which has been decreed in the city. - - ) and no one shall be billeted [lodged in a person's house by order of the king] within the walls of the city nor shall hospitality be forcibly exacted for anyone belonging to my household or to any other. - - ) and all the citizens of london and all their effect [goods] shall be exempt and free, both throughout england and in the seaports, from toll and fees for transit and market fees and all other dues. - - ) and the churches and barons and citizens shall have and hold in peace and security their rights of jurisdiction [in civil and criminal matters] along with all their dues, in such a way that lessees who occupy property in districts under private jurisdiction shall pay dues to no one except the man to whom the jurisdiction belongs, or to the official whom he has placed there. - - ) and a citizen of london shall not be amerced [fined by a court when the penalty for an offense is not designated by statute] to forfeiture of a sum greater than his wergeld, [hereby assessed as] shillings, in a case involving money. - - ) and further there shall be no miskenning [false plea causing a person to be summoned to court] in a husting [weekly court] or in a folkmote [meeting of the community], or in any other court within the city. - - ) and the hustings [court] shall sit once a week on monday. - - ) and i assure to my citizens their lands and the property mortgaged to them and the debts due to them both within the city and without. - - ) and with regard to lands about which they have pled in suit before me, i shall maintain justice on their behalf, according to the law of the city. - - ) and if anyone has exacted toll or tax from citizens of london, the citizens of london within the city shall [have the right to] seize [by process of law] from the town or village where the toll or tax was exacted a sum equivalent to that which the citizen of london gave as toll and hence sustained as loss. - - ) and all those who owe debts to citizens shall pay them or shall clear themselves in london from the charge of being in debt to them. - - ) but if they have refused to pay or to come to clear themselves, then the citizens to whom they are in debt shall [have the right to] seize [by process of law] their goods [including those in the hands of a third party, and bring them] into the city from the [town, village or] county in which the debtor lives [as pledges to compel appearance in court]. - - ) and the citizens shall enjoy as good and full hunting rights as their ancestors ever did, namely, in the chilterns, in middlesex, and in surrey. witnessed at westminster." the above right not to take part in any case outside the city relieved london citizens from the burden of traveling to wherever the king's court happened to be, the disadvantage of not knowing local customs, and the difficulty of speaking in the language of the king's court rather than in english. the right of redress for tolls exacted was new because the state of the law was that the property of the inhabitants was liable to the king or superior lord for the common debt. newcastle-on-tyne was recognized by the king as having certain customs, so the following was not called a grant: "these are the laws and customs which the burgesses of newcastle upon tyne had in the time of henry king of england and ought to have. [ ] -burgesses can distrain [take property of another until the other performs his obligation] upon foreigners within, or without their own market, within or without their own houses, and within or without their own borough without the leave of the reeve, unless the county court is being held in the borough, and unless [the foreigners are] on military service or guarding the castle. [ ] -a burgess cannot distrain upon a burgess without the leave of the reeve. [ ] -if a burgess have lent anything of his to a foreigner, let the debtor restore it in the borough if he admits the debt, if he denies it, let him justify himself in the borough. [ ] -pleas which arise in the borough shall be held and -concluded there, except pleas of the crown. [ ] -if any burgess be appealed [sued] of any plaint, he shall not plead without the borough, unless for default of [the borough] court. [ ] -nor ought he to answer without day and term, unless he have fallen into 'miskenning' [error in pleading], except in matters which pertain to the crown. [ ] -if a ship have put in at tynemouth and wishes to depart, the burgesses may buy what they will [from it]. [ ] -if a plea arise between a burgess and a merchant, it shall be concluded before the third ebb of the tide. [ ] -whatever merchandise a ship has brought by sea must be landed, except salt; and herring ought to be sold in the ship. [ ] if any man have held land in burgage for a year and a day, lawfully and without claim, he shall not answer a claimant, unless the claimant have been without the realm of - - -england, or a child not of age to plead. [ ] if a burgess have a son, he shall be included in his father's freedom if he be with his father. [ ] if a villein come to dwell in the borough, and dwell there a year and a day as a burgess, he shall abide altogether, unless notice has been given by him or by his master that he is dwelling for a term. [ ] if any man appeal [sue] a burgess of any thing, he cannot do [trial by] battle with the burgess, but the burgess shall defend himself by his law, unless it be of treason, whereof he is bound to defend himself by [trial by] battle. [ ] neither can a burgess do [trial by] battle against a foreigner, unless he first go out of the borough. [ ] no merchant, unless he be a burgess, may buy [outside] the town either wool or leather or other merchandise, nor within the borough except [from] burgesses. [ ] if a burgess incur forfeit, he shall give six ounces [ s.] to the reeve. [ ] in the borough there is no merchet [payment for marrying off a daughter] nor heriot nor bloodwite [fine for drawing blood] nor stengesdint [fine for striking with a stick]. [ ] every burgess may have his own oven and handmill if he will, saving the right of the king's oven. [ ] if a woman be in forfeit for bread or beer, no one ought to interfere but the reeve. if she forfeit twice, she shall be chastised by her forfeit. if three times, let justice be done on her. [ ] no one but a burgess may buy webs [woven fabrics just taken off the loom] to dye, nor make nor cut them. [ ] a burgess may give and sell his land and go whither he will freely and quietly unless there be a claim against him." the nation produced sufficient iron, but a primitive steel [iron with carbon added] was imported. it was scarce and expensive. steel was used for tools, instruments, weapons and armor. ships could carry about people. navigation was by simple charts that included wind direction for different seasons and the direction of north. the direction of the ship could be generally determined when the sky was clear by the position of the sun during the day or the north star during the night. plays about miracles wrought by holy men or saints or the sufferings and fortitude of martyrs were performed, usually at the great church festivals. most nobles could read, though writing was still a specialized craft. there were books on animals, plants, and stones. the lives of the saints as told in the book "the golden legend" were popular. the story of the early king arthur was told in the book "the history of the kings of england". the story at this time stressed arthur as a hero and went as follows: arthur became king at age . he had an inborn goodness and generosity as well as courage. he and his knights won battles against foreign settlers and neighboring clans. once, he and his men surrounded a camp of foreigners until they gave up their gold and silver rather than starve. arthur married guenevere and established a court and retinue. leaving britain in the charge of his nephew modred, he fought battles on the continent for land to give to his noblemen who did him service in his household and fought with him. when arthur returned to britain, he made battle with his nephew modred who had crowned himself king. arthur's knight gawain, the son of his sister, and the enemy modred were killed and arthur was severely wounded. arthur told his kinsman constantine to rule britain as king in his place. the intellectual world included art, secular literature, law, and medicine. there were about physicians. the center of government was a collection of tenants-in-chief, whose feudal duty included attendance when summoned, and certain selected household servants of the king. the exchequer became a separate body. the payments in kind, such as grain or manual services, from the royal demesnes had been turned into money payments. the great barons made their payments directly to the exchequer. the income from royal estates was received by the exchequer and then commingled with the other funds. each payment was indicated by notches on a stick, which was then split so that the payer and the receiver each had a half showing the notches. the exchequer was the great school for training statesmen, justices, and bishops. the chancellor managed the domestic matters of the crown's castles and lands. the great offices of state were sold for thousands of pounds, which caused their holders to be on their best behavior for fear of losing their money by being discharged from office. one chancellor paid henry about pounds for the office. henry brought sheriffs under his strict control, free from influence by the barons. he maintained order with a strong hand, but was no more severe than his security demanded. forests were still retained by kings for their hunting of boars and stags. a master forester maintained them. the boundaries of the royal forests were enlarged. they comprised almost one-third of the kingdom. certain inhabitants thereof supplied the royal foresters with meat and drink and received certain easements and rights of common therein. the forest law reached the extreme of severity and cruelty under henry i. punishments given included blinding, emasculation, and execution. offenders were rarely allowed to substitute a money payment. when fines were imposed they were heavy. a substantial number of barons and monasteries were heavily in debt to the jews. the interest rate was % ( d. per pound per week). the king taxed the jews at will. the law henry restored the death penalty (by hanging) for theft and robbery, but maintained william i's punishment of mutilation by blinding and severing of limbs for other offenses, for example, bad money. he decreed in that false and bad money should be amended, so that he who was caught passing bad denarii should not escape by redeeming himself but should lose his eyes and members. and since denarii were often picked out, bent, broken, and refused, he decreed that no denarius or obol, which he said were to be round, or even a quadrans, if it were whole, should be refused. (money then reached a higher level of perfection, which was maintained for the next century.) counterfeiting law required that "if any one be caught carrying false coin, the reeve shall give the bad money to the king however much there is, and it shall be charged in the render of his farm [payment] as good, and the body of the offender shall be handed over to the king for judgment, and the serjeants who took him shall have his clothes." the forest law stated that: "he that doth hunt a wild beast and doth make him pant, shall pay shillings: if he be a freeman, then he shall pay double. if he be a bound man, he shall lose his skin." a "verderer" was responsible for enforcing this law, which also stated that: "if anyone does offer force to a verderer, if he be a freeman, he shall lose his freedom, and all that he hath. and if he be a villein, he shall lose his right hand." further, "if such an offender does offend so again, he shall lose his life." a wife's dower is one-third of all her husband's freehold land, unless his endowment of her at their marriage was less than one- third. debts to townsmen were recoverable by this law: "if a burgess has a gage [a valuable object held as security for carrying out an agreement] for money lent and holds this for a whole year and a day, and the debtor will not deny the debt or deliver the gage, and this is proved, the burgess may sell the gage before good witnesses for as much as he can, and deduct his money from the sum. if any money is over he shall return it to the debtor. but if there is not enough to pay him, he shall take distress again for the amount that is lacking." past due rent in a borough was punishable by payment of s. as fine. judicial activity encouraged the recording of royal legislation in writing which both looked to the past and attempted to set down law current in henry's own day in the leges henrici primi. this showed an awareness of the ideal of written law as a statement of judicial principles as well as of the practice of kingship. in this way, concepts of roman law used by the normans found their way into english law. the laws of henry i in the leges henrici primi have as subjects judicial procedure, proper judging, conduct of people involved in litigation, litigation procedure, required witnesses, evidence, credibility, quotes from legal references, oaths, perjury, geographical divisions of england, court sessions and attendance, order of court proceedings, adjournments, frankpledge, strangers, types of causes and their manner of hearing, royal jurisdiction, ecclesiastical pleas of the king, offenses, compensations, penalties, reliefs, the king's peace, forest pleas, exculpation, soke, jurisdiction of royal judges, the king's judges, summons, oathhelpers, transfer of cases, trials of pleas, unjust judgments, sureties, lords who sue, accusations, court procedure, pleadings, postponements, record of proceedings, failure to appear, counsel, summoning the hundred, summoning the county court, distraints, partners of common property, rights of jurisdiction of a lord over his man, holdings in farm, disputes between neighbors, trial by battle, slaves, pleas between a lord's reeve and those who are subject to him, suits by royal judges, wergelds, murdrum fine, letting go of a thief, slaying of or by a cleric, confessions, men of ill repute, ordeals, compensations, bondmen, intent, inheritance, dowries, homicide by magicians, definition of homicide, killing one's lord, foreigners, debtors, illegitimacy, foundlings, the king's peace, homicide in the king's court, royal highways, self-defense, drinking assemblies, mutual enemies, leading into wrong-doing, lent arms, marauders, weapons, killing a relative, pledge, negligence, and wounds to body parts. a sampling of the laws of henry i follows: "these are the jurisdictional rights which the king of england has in his land solely and over all men, reserved through a proper ordering of peace and security: breach of the king's peace given by his hand or writ; danegeld; the pleas of contempt of his writs or commands; the death or injury of his servants wherever occurring; breach of fealty and treason; any contempt or slander of him; fortifications consisting of three walls; outlawry; theft punishable by death; murdrum; counterfeiting his coinage; arson; hamsocn [breach of the right of security and privacy in a man's house by forcible entry into it]; forestel [attacking an enemy unexpectedly or lying in wait for him on the road and attacking him] passenger on the king's highway]; fyrding [action regarding the military array or land force of the whole country]; flymenfyrm [the reception or relief of a fugitive or outlaw]; premeditated assault; robbery; stretbreche [destroying a road by closing it off or diverting it or digging it up]; unlawful appropriation of the king's land or money; treasure-trove; wreck of the sea; things cast up by the sea; rape; abduction; forests; the reliefs of barons; fighting in the king's dwelling or household; breach of the peace in the king's troop; failure to perform burgbot [a contribution to the repair of castles or walls of defense, or of a borough]; or brigbot [a tribute or contribution to the repair of bridges]; or firdfare [a summoning forth to a military expedition]; receiving and maintaining an excommunicated person or an outlaw; violation of the king's protection; flight in a military or naval battle; false judgment; failure of justice; violation of the king's law." "some pleas cannot be compensated for with money; these are: husbreche [housebreaking or burglary], arson, manifest theft, palpable murder, treachery towards one's lord, and violation of the peace of the church or the protection of the king through the commission of homicide." "compensation is effected by the payment of one hundred shillings for the following: grithbreche [breach of the peace], stretbreche, forestel, violation of the king's protection, hamsocn, and flymenfyrm." hamsocn is an attack on a house and occurs if anyone assaults another in his own house or the house of someone else with a band of men or pursues him so that he hits the door or the house with arrows or stones or produces a perceptible blow from any source. it also is committed if anyone goes with premeditation to a house where he knows his enemy to be and attacks him there, whether he does this by day or by night. it also occurs if anyone pursues a person fleeing into a mill or sheephold. if in a court of house dissension has arisen and fighting follows as well, and someone pursues another person fleeing into the other house, it shall be considered hamsocn if there are two roofs there. the following place a man in the king's mercy: breach of his peace which he gives to anyone by his own hand; contempt of his writs and anything which slanders injuriously his own person or his commands; causing the death of his servants in a town or fortress or anywhere else; breach of fealty and treason; contempt of him; construction of fortifications without permission; the incurring of outlawry (anyone who suffers this shall fall into the king's hand, and if he has any bocland [lands held by deed or other written evidence of title]; manifest theft punishable by death." if any englishman is slain without fault on his part, compensation shall be paid to his relatives according to this wergeld. wite and manbot shall be paid to the appropriate lords in accordance with the amount of the wergeld. where a wergeld of s. is payable, then s. must be paid as manbot, which equals mancuses; where the wergeld is s., that is, for a thegn, the manbot is s, which amounts to mancuses. "for the oath of a thegn equals the oaths of six villeins; if he is killed he is fully avenged by the slaying of six villeins and if compensation is paid for him, his wergeld is the wergeld for six villeins." some freemen are men, some men, and others men. a man has a wergeld of s., which equal pounds. a man is a person of noble rank, that is, a thegn, whose wergeld is s., which equal pounds. his healsfang is s., which today equals s. ( sheep are worth s., as is one horse.) homicide by a magical potion or witchcraft or sorcery practiced with images or by any kind of enchantment cannot be compensated. if the bewitched person does not die, but suffers some change of the skin or demonstrable physical sickness, compensation shall be paid as prescribed by the ancient provisions of wise men, in accordance with the circumstances. "if anyone kills his lord, then if in his guilt he is seized, he shall in no manner redeem himself but shall be condemned to scalping or disemboweling or to human punishment which in the end is so harsh that while enduring the dreadful agonies of his tortures and the miseries of his vile manner of death he may appear to have yielded up his wretched life before in fact he has won an end to his sufferings, and so that he may declare, if it were possible, that he had found more mercy in hell than had been shown to him on earth." "if anyone kills his man without his having merited death, he shall just the same pay compensation for him to his relatives according to the amount of his wergeld, because the man was his to render service, not to be killed." "a person who breaks the king's peace which he confers on anyone with his own hand shall, if he is seized, suffer the loss of his limbs." "if anyone has the king's peace given by the sheriff or other official and a breach of it is committed against him, then this is a case of grithbreche and compensation of one hundred shillings shall be paid, if settlement can be effected by payment of compensation." "on whosoever's land a slaying takes place, the lord who has his rights of soke and sake shall, if the slayer, when caught on the spot, is released on providing security or is detained after being charged, receive the fihtwite." if anyone is slain in an attack by a band of marauders, the slayer shall pay the wergeld to the relatives, and manbot to the lord, and all who were present shall pay hlothbot, that is to say, they shall pay compensation of s. for a man, s. for a man, and s. for a man. in the case of every payment of wergeld for a slaying, two parts are the responsibility of the paternal kindred, and one third part is the responsibility of the maternal kin. if the kindred of a man who slays another abandons him and will not pay compensation for him, then all the kindred shall be free from the feud except the wrongdoer alone, if they thereafter provide him with neither food nor protection. "if a woman commits homicide, vengeance shall be taken against her or her descendants or her blood relatives (or she shall pay compensation for it), not against her husband or his innocent household." amends shall nonetheless be made whether these things are done intentionally or unintentionally. however, the possibility of a friendly settlement or of clemency is to be treated as the more likely or the more remote depending on the degree of blame attaching to the person who has been slain, and according to the circumstances. if a woman is slain, compensation is to be paid according to her wergeld, which is decided by her paternal relationship. the manbot shall be determined by the standing of the lord. "any person may aid his lord without incurring a wite if anyone attacks him, and may obey him in all lawful matters except in the case of breach of feudal loyalty, theft, murder, and similar offences, the commission of which has in absolutely no way been permitted, and which are branded as crimes by the laws." in the same way a lord must in the appropriate circumstances keep his man with advice as well as support, and may do so in all ways without penalty. "anyone who fights in the king's dwelling shall forfeit his life." "if anyone commits the offence of blodwite [an amercement for bloodshed], fihtwite [a fine for making a quarrel to the disturbance of the peace], legerwite [fine for unlawful cohabitation], or anything of that nature, and he escapes from the scene without being obliged to provide security for future appearance in court or without a charge being laid there, the jurisdiction at law belongs to his own lord." infiht or insocna is the offense committed by those who are living in community in a house; this is compensated for by a payment of the wite to the head of the household, if he has jurisdiction over accuser and accused. if anyone leaps to arms and disturbs the peace of a house, but does not strike anyone, his liability is half the penalty. compensation for wounds are as follows: on the head if both bones have been pierced s.; on the head if only the outer bone has been pierced s.; a wound under the hair one inch long d., that is, s.; a wound in front of the hair d, that is s.; injury to the throat s.; injury on the neck causing a curvature or stiffness or a lasting disability s. plus whatever has been paid out for medical treatment.; external injury to the hand s.; if half the hand flies off s.; rib broken but the skin remains whole s.; rib broken and the skin is broken and the bone is drawn out s.; loss of any eye or hand or foot or tongue s. d. and a third part of a penny; loss of sight but with the eye remaining in the head s. d.; wound on the shoulder if the person lives s.; shoulder wound so that the fluid from the joints runs out s.; shoulder maimed s.; an injury within a shoulder so that a bone is drawn out s.; arm broken above the elbow s.; both bones in the arm broken s.; arm cut off below the elbow s.; wound in the belly s.; pierced through the belly s. for each opening; a thigh pierced or broken s.; shin struck off below the knee s.; the shin broken s.; shin pierced below the knee s.; broken shinbone s.; wound in the genitals so that there is loss of the capacity to procreate s.; loins maimed s.; loins pierced through s.; loins punctured s.; injury to the great sinews of another's lower leg if they recover through response to medical treatment s.; injury to the sinews which cauces lameness s.; injury to the small sinews s.; striking a blow without causing blood to flow d. for each blow up to a total of three blows, no matter how many blows are actually struck, for a total of d.; knocking out first teeth or incisors s.; canines or `cheek' teeth s.; molars s.; broken cheeks s.; a thumb cut off s.; a thumbnail cut off s.; an index finger s; an index fingernail s.; a middle or `unchaste' finger s; a middle fingernail s.; a ring finger or `medical' finger s.; a ring fingernail s.; an `ear' finger s.; an `ear' fingernail s., that is d.; the big toe cut off s.; the second toe s.; the third toe s.; the fourth toe s., the fifth toe s.; "if anyone suffers a wound, not involving the cutting off or maiming or breaking of a limb, on an uncovered and visible place (for example, in front of the hair or below the sleeve or beneath the knees), the compensation to be paid shall be double what would be due in the case of a wound inflicted on the head under the hair or on the limbs beneath the clothes, that is, on a concealed place." "anyone who commits a theft, who betrays his lord, who deserts him in a hostile encounter or military engagement, who is defeated in trial by battle or who commits a breach of the feudal bond shall forfeit his land." in the case of stolen property worth more than d., the accused shall choose which of the two he wishes, either the simple ordeal or an oath of the value of one pound with oath helpers taken from three hundreds. "if anyone dares to dig up or despoil, in scandalous and criminal fashion, a body buried in the ground or in a coffin or a rock or a pyramid or any structure, he shall be regarded as an outlaw." "if a person condemned to death wishes to confess, it shall never be refused him." "if anyone who is a father dies and leaves as son or daughter to inherit, they shall not maintain an action or submit to a court judgment before reaching fifteen years of age; but they shall remain seised, under guardians and trustees in the lawful custody of their relatives, just as their father was on the day when he was alive and dead." "if anyone dies without children, his father or mother shall succeed to the inheritance, or his brother or sister, if neither father nor mother is living." if he does not possess these relatives, then his father's or mother's sister, and thereafter relatives up to the fifth `joint', whoever are the nearest in relationship, shall succeed by the law of inheritance. while the male line subsists, and the inheritance descends from that side, a woman shall not succeed. "the first born son shall have the father's ancestral fee' the latter shall give any purchases or subsequent acquisitions of his to whomever he pleases." if a person has bocland which his kinsmen have left him, he shall not dispose of it outside his kindred. "if a wife survives her husband she shall have in permanent ownership her dowry and her maritagium which had been settled on her by written documents or in the presence of witnesses and her morning-gift and a third part of all their jointly acquired property in addition to her clothing and her bed." "if a woman dies without children, her blood relatives shall divide up her share with her husband." a man may fight against as person whom he finds with his wedded wife, after the second or third prohibition, behind closed doors or under the one covering, or with his daughter whom he begot on his wife, or with his sister who was legitimately born, or with his mother who was lawfully wedded to his father. there is pecuniary compensation if a married woman commits fornication and she is of the rank of ceorl or belongs to the s. class or the s. class, and physical mutilation has been prescribed for those persisting in the offence. "women who commit fornication and destroy their embryos, and those who are accessories with them, so that they abort the foetus from the womb, are by an ancient ordinance excommunicated from the church until death." a milder provision has now been introduced: they shall do penance for ten years. "if anyone kills or while sleeping crushes another person's child who has been entrusted to him for rearing or instruction, he shall pay compensation for him just as if he had killed an adult person." the county meetings shall be attended by the bishops, earls, sheriffs, deputies, hundredmen, aldermen, stewards, reeves, barons, vavassors [those who hold of a baron], village reeves, and the other lords of lands who shall with diligence see to it that failure to punish evildoers or the viciousness of officials or the corruption of judges shall not destroy those suffering under their accustomed afflictions. every cause shall be determined in the hundred court or county court or the hallmoot of those who have soke or in the courts of feudal lords or in the boundary courts of feudal equals or as it pertains to established places for court proceedings. "in the case of soke of pleas, some of these profits belong peculiarly and exclusively to the royal treasury, some are shared by it with others, some belong to the sheriffs and royal officials in their farm, and some belong to the lords who have soke and sake." "the king's judges shall be the barons of the county and those who hold free lands in the counties, by whom the causes and of individuals must be dealt with by the presentation in turn of complaint and defense." anyone who violates or subverts the written law shall forfeit his wergeld on the first occasion; on the second occasion the penalty is twice the wergeld; and anyone who ventures to do it a third time shall lose whatever he possesses. "each person is to be judged by men who are of equal status and from the same district as himself." "no one of high status shall be condemned by the judgment of lesser men." "whoever gives an unjust judgment shall forfeit one hundred and twenty shillings and shall lose his judicial authority unless he redeems it from the king." if there are contrary opinions among the judges in serious pleas, the decision of the most substantial men and that with which the royal justice has concurred shall prevail. "some persons are slaves by birth, others become slaves subsequently; of the latter, some are enslaved by purchase, some by way of satisfaction for an offence, some give themselves in slavery or are given by another person, and some become slave by falling under any other classifications, all of which we may wish nevertheless to be included in that one category of slavery, for which we propound the description `accident' - so that the position has been expressed in this way: some are slaves by accident, others by birth." church law provided that only consent between a man and woman was necessary for marriage. there needn't be witnesses, ceremony, nor consummation. consent could not be coerced. penalties in marriage agreements for not going through with the marriage were deemed invalid. villeins and slaves could marry without their lords' or owners' permission. a couple living together could be deemed married. persons related by blood within certain degrees, which changed over time, of consanguinity were forbidden to marry. this was the only ground for annulment of a marriage. a legal separation could be given for adultery, cruelty, or heresy. annulment, but not separation, could result in remarriage. fathers were usually ordered to provide some sustenance and support for their illegitimate children. the court punished infanticide and abortion. counterfeiters of money, arsonists, and robbers of pilgrims and merchants were to be excommunicated. church sanctuary was to be given to fugitives of violent feuds until they could be given a fair trial. judicial procedure courts extant now are the royal court, the king's court of the exchequer, county courts, and hundred courts, all of which were under the control of the king. his appointed justices administered justice in these courts on regular circuits. instead of being the presiding official at the county court, the sheriff now only produced the proper people and preserved order at the county courts and presided over the nonroyal pleas and hundred courts. he impaneled recognitors, made arrests, and enforced the decisions of the royal courts. also there are manor courts, borough courts, and ecclesiastical courts. in the manor courts, the lord's reeve generally presided. the court consisted of the lord's vassals and declared the customs and law concerning such offenses as failure to perform services and trespass on manorial woods, meadow, and pasture. the king's royal court heard issues concerning the crown and breaches of the king's peace, which included almost all criminal matters: murder, robbery, rape, abduction, arson, treason, breach of fealty, housebreaking, ambush, certain kinds of theft, premeditated assault, and harboring outlaws or excommunicants. henry personally presided over hearings of important legal cases. he punished crime severely. he hanged homicides, exiled traitors, and frequenly used loss of hand and foot. in comparison, william had no one hanged, but used emasculation and exoculation frequently. offenders were brought to justice not only by the complaint of an individual or local community action, but by official prosecutors. a prosecutor was now at trials as well as a justice. trial is still mostly by compurgation but trial by combat was relatively common. these offenses against the king placed merely personal property and sometimes land at the king's mercy. thus the crown increased the range of offenses subject to its jurisdiction and arrogated to itself profits from the penalties imposed. the death penalty could be imposed for murder and replaced the old wergeld. but a murderer could be given royal pardon from the death penalty so that he could pay compensation to the relatives. the royal court also heard these offenses against the king: fighting in his dwelling, contempt of his writs or commands, encompassing the death or injury of his servants, contempt or slander of the king, and violation of his protection or his law. it heard these offenses against royal authority: complaints of default of justice or unjust judgment, pleas of shipwrecks, coinage, treasure trove [money buried when danger approached], forest prerogatives, and control of castle building. slander of the king, the government, or high officials was punishable as treason, felony, misprision of treason, or contempt, depending on the rank and office of the person slandered and the degree of guilt. henry began the use of writs to intervene in civil matters such as inquiry by oath and recognition of rights as to land, the obligations of tenure, the legitimacy of heirs, and the enforcement of local justice. writs were requested by people who wanted to come to the royal court. the royal court used its superior coercive power to enforce the legal decisions of the county, hundred, and private courts. it also reviewed miscarriages of justice and unlawful procedures in these courts. there was a vigorous interventionism in the land law subsequent to appeals to the king in landlord-tenant relations, brought by a lord or by an undertenant. assizes [those who sit together] of local people who knew relevant facts were put together to assist the court. henry appointed some locally based justices. also, he sent justices from the royal court out on eyres [journeys] to hold assizes. this was done at special sessions of the county courts, hundred courts, and manor courts. records of the verdicts of the royal court were sent with these itinerant justices for use as precedent in these courts. thus royal authority was brought into the localities and served to check baronial power over the common people. these itinerant justices also transacted the local business of the exchequer in each county. henry created the office of chief justiciar, which carried out judicial and administrative functions and could travel anywhere in the country and make legal decisions in the king's name. the royal court retained cases of gaol delivery [arrested person who had been held in gaol was delivered to the court] and amercements [discretionary money payments which took the place of the old wites]. it also decided cases in which the powers of the popular courts had been exhausted or had failed to do justice. the royal court also decided land disputes between barons who were too strong to submit to the county courts. the king's court of the exchequer reviewed the accounts of sheriffs, including receipts and expenditures on the crown's behalf as well as sums due to the treasury, located still at winchester. these sums included rent from royal estates, the danegeld land tax, the fines from local courts, and aid from baronial estates. its records were the "pipe rolls", so named because sheets of parchment were fastened at the top, each of which dropped into a roll at the bottom and so assumed the shape of a pipe. the county and hundred courts assessed the personal property of individuals and their taxes due to the king. the county court decided land disputes between people who had different barons as their respective lords. the free landholders were expected to attend county, hundred, and manor courts. they owed "suit" to it. the suitors found the dooms [laws] by which the presiding officer pronounced the sentence. the county courts heard cases of theft, brawling, beating, and wounding, for which the penalties could be exposure in the pillory or stocks. the pillory held an offender's head and hands in holes in boards, and the stocks held one's hands and feet. here the public could scorn and hit the offender or throw fruit, mud, and dead cats at him. for sex offenders and informers, stones were usually thrown. sometimes a person was stoned to death. damages in money replaced the old bots. the county courts met twice yearly. if an accused failed to appear after four successive county courts, he was declared outlaw at the fifth and forfeited his civil rights and all his property. he could be slain by anyone at will. the hundred court met once a month to hear neighborhood disputes, for instance concerning pastures, meadows and harvests. usually present was a priest, the reeve, four representative men, and sometimes the lord or his steward in his place. sometimes the chief pledges were present to represent all the men in their respective frankpledges. the bailiff presided over all these sessions except two, in which the sheriff presided over the full hundred court to take the view of frankpledge, which was required for those who did not have a lord to answer for him. the barons held court on their manors at a "hallmote" for issues arising between people living on the manor, such as bad ploughing on the lord's land or letting a cow get loose on the lord's land, and land disputes. this court also made the decision of whether a certain person was a villein or freeman. the manor court took over issues which had once been heard in the vill or hundred court. the baron charged a fee for hearing a case and received any fines he imposed, which amounted to significant "profits of justice". boroughs held court on trading and marketing issues in their towns such as measures and weights, as well as issues between people who lived in the borough. the borough court was presided over by a reeve who was a burgess as well as a royal official. wealthy men could employ professional pleader-attorneys to advise them and to speak for them in a court. the ecclesiastical courts, until the time when henry viii took over the church, dealt with family matters such as marriage, annulments, marriage portions and settlements of money or goods, legitimacy, undue wifebeating, child abuse, orphans, bigamy, adultery, incest, fornication, and separations between husband and wife. there were no divorces. they also dealt during this time with drunkenness, personal possessions, defamation, slander which did not cause material loss (and therefore had no remedy in the temporal courts), libel, perjury, usury, mortuaries [the second best beast or fees at death], sacrilege, sorcery, witchcraft, blasphemy [speaking ill of god], heresy [a belief by a baptized person that is knowingly contrary to the doctrine of the church], tithe payments, oblations for performing the eucharist including expenses for the bread and wine, church fees such as for the clergy and the poor, simony [buying or selling ecclesiastical preferment or pardons], pensions, certain offenses on consecrated ground, and breaches of promises under oath, e.g. to pay a debt, provide services, or deliver goods. they decided inheritance and will issues which did not concern land, but only personal property. this developed from the practice of a priest usually hearing a dying person's will as to the disposition of his goods and chattel when he made his last confession. so the church court came to determine the validity of wills, interpret them, regulate their created testamentary executors, and determine the legatees. it also came to determine intestate matters. it provided guardianship of infants during probate of their personal property. trial was first by compurgation, with oath-helpers swearing to or against the veracity of the alleged offender's oath. the ecclesiastical court's penalties were intended to reform and determined on a case-by-case basis. the canon law of christendom was followed, without much change by the english church or nation. a penitent who was sincerely contrite was first expected to confess his sin to a priest, who gave him god's forgiveness. this removed the guilt of the sin and eternal punishment in hell. but then justice required a "satisfaction", which could be met in this world or in the next. accordingly, the priest or ecclesiastical court then imposed a "penance", i.e. some act of a religious nature. penance could include confession and public repentance of the sin before the parish, making apologies and reparation to persons affected, public embarrassment such as being dunked in water (e.g. for women scolds), walking a route barefoot and clad only in one's underwear, whippings, extra work, fasting, vigils, prayers for help to live righteously, reading, meditation, solitary life, a diet of bread and water for a specified time, fines, gifts to the church, alms to the poor, various kinds of good deeds, and imprisonment in a "penitentiary". for more serious sins, there could be a long fast, a diet of bread and water for a number of years, or a distant pilgrimage, for instance to rome or jerusalem. for those whose penance was incomplete at the time of their death, there was a temporary state of purgatory wherein some sort of suffering fulflled the remaining debt. souls in purgatory could be aided by the prayers of the faithful on earth. the truly penitent could hope for the remission of all or part of their purgation by obtaining an indulgence from a higher authority than the priest. the ultimate penalty of the church was excommunication, a social ostracism in which no one could give the person drink, food, or shelter and he could speak only to his spouse and servants. excommunication included denial of the sacraments of baptism, penance, mass [lord's supper}, and extreme unction [prayers for spiritual healing] at death; which were necessary for salvation of the soul; and the sacrament of confirmation. a person could also be denied a christian burial in consecrated ground. however, the person could still marry and make a will. the purpose of excommunication was to restore the person to spiritual health rather than to punish him. excommunication was usually imposed for failure to obey an order or for showing contempt of the law or of the courts. it required a hearing and a written reason. the king's court could order a recalcitrant excommunicant imprisoned until he satisfied the claims of the church. if this measure failed, it was possible to turn the offender over to the state for punishment, e.g. for blasphemy or heresy. blasphemy was thought to cause god's wrath expressed in famine, pestilence, and earthquake and was usually punished by a fine or corporal punishment, e.g. perforation or amputation of the tongue. it was tacitly understood that the punishment for heresy was death by burning. there were no heresy cases up to and few after that. the state usually assured itself the sentence was just before imposing it. the court of the rural dean was the ecclesiastical parallel of the hundred court of secular jurisdiction and usually had the same land boundaries. the archdeacons, who had been ministers of the bishop in all parts of his diocese alike, were now each assigned to one district, which usually had the same boundaries as the county. each bishop headed a diocese. over the bishops were the two archbishops of canterbury and of york. the ecclesiastical court had one judge and no jury. most cases dealt with offenses against the church, such as working on sunday, and sexual mores. the court used teatimony and depositions of witnesses, oaths of the parties, confessions, physical and written evidence, presumptions of common knowledge, and inquests of impartial, sworn men who made unanimous determinations. the accuser had to meet the burden of proof. the accused could be required to answer questions under oath, thus giving evidence against himself. it was not necessary to have an accuser; a judge could open a case based on public rumor. the judge made a written decision that did not incude his reasoning. he read the decision aloud in a public session of the court. if an accused disobeyed a court order to appear or to do penance, he could be excommunicated. common law held that ecclesiastical courts could not give money damages. but costs were paid by the loser and included expenses of producing witnesses, writing of documents, and fees of lawyers. an appeal could be made from the archdeacon to the bishop to the metropolitan to the pope. henry acknowledged occasional appellate authority of the pope, but expected his clergy to elect bishops of his choice. there was a separate judicial system for the laws of the forest. there were itinerant justices of the forests and four verderers of each forest county, who were elected by the votes of the full county court, twelve knights appointed to keep vert [everything bearing green leaves] and venison, and foresters of the king and of the lords who had lands within the limits of the forests. every three years, the officers visited the forests in preparation for the courts of the forest held by the itinerant justices. the inferior courts were the woodmote, held every forty days, and the swein [freeman or freeholder within the forest] mote, held three times yearly before the verderers as justices, in which all who were obliged to attend as suitors of the county court to serve on juries and inquests were to be present. in this lawsuit, king henry i decided that since the abbots and monks of battle had proved before him that certain lands, belonging to the manor of alciston, are no possession of theirs, so they are to be quit of the services due there: " henry, king of the english, to ralph, bishop of chichester, and all his ministers of sussex, greeting. know that as the abbot of battle and the monks deraigned [proved] before me that they do not have those lands which you said they had, namely, ovington, coding ( in hove), batsford (in warbleton), daningawurde, shuyswell ( in etchingham), boarzell ( in ticehurst), winenham, wertesce, brembreshoc and seuredeswelle, which of old belonged to alciston and contain seven hides of land of the fifty hides in alciston and its appurtenances, i order that they shall be free and quit on this account and that none shall molest them any further, but concerning these lands and these hides they shall be completely free and quit as concerning lands which they do not have and of which they are not seised. i also order by royal authority that their manor called alciston, which my father gave to the church of battle with other lands for his soul, shall be so free and quit of shires and hundreds and all customs of land-service as my father himself held it most freely and quietly, and namely concerning the work on london bridge and on the castle of pevensey. this i command upon my forfeiture. witness: william de pont de l'arche. at westbourne. in this lawsuit, king henry i ordered a bishop and sheriff to put another bishop in possession of certain churches according to the verdict of twelve men: " henry, by god's grace, etc. to h(erbert), bishop of norwich, and robert the sheriff, greeting. i order that you let richard, bishop of london, have the churches of blythburgh and stowe with all the customs that belong to them as twelve among the better men of the hundred will be able to swear and as i ordered in my other writ. and let this not be left undone because of my voyage to normandy, and let him hold them in peace and honour with suit, soke, toll and team and infangthief and with all other customs, as ever any of my predecessors most honourably and most quietly held them. witness, etc." in this lawsuit, king henry i grants that an abbot should continue to have his mint after his moneyer suffered punishment like all the others in england: "henry, king of the english, to everard bishop of norwich, robert fitz walter and all his barons and lieges, french and english, of suffolk, greeting. i grant that, justice having been done to his moneyer as was done to the other moneyers of england, the abbot of st. edmunds shall have in the vill of st. edmunds his mint, moneyer and exchange as he used to have it before. witnesses: (john), bishop of lisieux, (bernard), bishop of st. david's and robert de sigillo, at rouen." in this lawsuit, king henry i held proven the ownership of certain wood and land: "henry, king of the english, to the bishop of lincoln and the sheriff and the barons and faithful, french and english, of bedfordshire, greeting. know that abbot reginald of ramsey has deraigned in my court to the advantage of the church of ramsey the wood of crawley and the land pertaining to it against simon de beauchamp, about which they were in dispute, and the aforesaid abbot gave to simon marks of silver and two palfreys [riding horses] so that simon granted them to him out of goodwill and gave up his claim. and i will and firmly order that the aforesaid church of ramsey shall hold that wood and the aforesaid land belonging to the wood well and in peace, honourably and by perpetual right. witnesses: bishop roger of salisbury and bishop alexander of lincoln, king david of scotland, geoffrey the chancellor, earl robert of leicester, adam de port, hugh bigod, william d'aubigny the butler, geoffrey de clinton, william of d'aubigny brito." chapter the times: - king henry ii and queen eleanor, who was twelve years older, were both intelligent, educated, energetic, well-traveled, and experienced in affairs of state. henry was the first norman king to be fully literate and he learned latin. he had many books and maintained a school. eleanor often served as regent during henry's reign and the reigns of their two sons: richard i, the lion- hearted, and john. she herself headed armies. henry ii was a modest, courteous, and patient man with an astonishing memory and strong personality. he was indifferent to rank and impatient of pomp to the point of being careless about his appearance. he usually dressed in riding clothes and was often unkempt. he was thrifty, but generous to the poor. he was an outstanding legislator and administrator. henry ii took the same coronation oath as edward the confessor regarding the church, laws, and justice. not only did he confirm the charter of his grandfather henry i, but he revived and augmented the laws and institutions of his grandfather and developed them to a new perfection. almost all legal and fiscal institutions appear in their first effective form during his reign. for instance, he institutionalized the assize for a specific function in judicial proceedings, whereas before it had been an ad hoc body used for various purposes. the term "assize" here means the sitting of a court or council. it came to denote the decisions, enactments, or instructions made at such. henry's government practiced a strict economy and he never exploited the growing wealth of the nation. he abhorred bloodshed and the sacrifice of men's lives. so he strove diligently to keep the peace, when possible by gifts of money, but otherwise with armed force. robbers were hanged and any man who raped a woman was castrated. foreign merchants with precious goods could journey safely through the land from fair to fair. these fairs were usually held in the early fall, after harvesting and sheep shearing. foreign merchants bought wool cloth and hides. frankpledge was revived, now applying to the unfree and villeins. no stranger could stay overnight (except for one night in a borough), unless sureties were given for his good behavior. a list of such strangers was to be given to itinerant justices. henry had character and the foresight to build up a centralized system of government that would survive him. he learned about the counties' and villages' varying laws and customs. then, using the model of roman law, he gave to english institutions that unity and system which in their casual patchwork development had been lacking. henry's government and courts forged permanent direct links between the king and his subjects which cut through the feudal structure of lords and vassals. he developed the methods and structure of government so that there was a great increase in the scope of administrative activity without a concurrent increase of personal power of the officials who discharged it. the government was self-regulating, with methods of accounting and control which meant that no official, however exalted, could entirely escape the surveillance of his colleagues and the king. at the same time, administrative and judicial procedures were perfected so that much which had previously required the king's personal attention was reduced to routine. the royal household translated the royal will into action. in the early s, there had been very little machinery of central government that was not closely associated with the royal household. there was a chief justiciar for legal matters and a treasurer. royal government was largely built upon what had once been purely domestic offices. kings had called upon their chaplains to pen letters for them. by henry ii's reign, the chancery was a highly efficient writing office through which the king's will was expressed in a flow of writs, and the chancellor an important and highly rewarded official, but he was still responsible for organizing the services in the royal chapel. similarly, the chamberlains ran the household's financial departments. they arranged to have money brought in from a convenient castle treasury, collected money from sheriffs or the king's debtors, arranged loans with the usurers, and supervised the spending of it. it was spent for daily domestic needs, the king's almsgiving, and the mounting of a military campaign. but they were still responsible for personal attendance upon the king in his privy chamber, taking care of his valuable furs, jewels, and documents, and changing his bed linens. there were four other departments of the household. the steward presided over the hall and kitchens and was responsible for supplying the household and guests with food supplies. the butler had duties in the hall and cellars and was responsible for the supply of wine and ale. the marshall arranged lodgings for the king's court as it moved about from palaces to hunting lodges, arranged the pay of the household servants, and supervised the work of ushers, watchmen, fire tenders, messengers and huntsmen. the constable organized the bodyguard and escorts, arranged for the supply of castles, and mustered the royal army. the offices of steward, constable, chamberlain, butler were becoming confined to the household and hereditary. the justiciar, chancellor, and treasurer are becoming purely state offices. they were simply sold or rented, until public pressure resulted in a requirement of ability. henry's council included all his tenants-in-chief, which included archbishops, bishops, abbots, priors, earls, barons, knights and socage tenants of the crown, whether they made payments directly to him or through a sheriff. the higher ones were served with a writ addressed to them personally. knights and below were summoned by a general writ to the sheriff. henry brought order and unity by making the king's royal court the common court of the land. its purpose was to guard the king's peace by protecting all people of free status throughout the nation and correct the disparity in punishments given by local courts. the doctrine of felony developed, with punishment by death relacing the old wites. heretofore, the scope of the king's peace had varied to cover as little as the king's presence, his land, and his highway. the royal demesne had shrunk to about % of the land. the common law for all the nation was established by example of the king's royal court. henry erected a basic, rational framework for legal processes which drew from tradition but lent itself to continuous expansion and adaptation. a system of writs originated well-defined actions in the royal courts. each court writ had to satisfy specific conditions for this court to have jurisdiction over an action or event. this system determined the royal court's jurisdiction over the church, lords, and sheriffs. it limited the jurisdiction of all other courts and subordinated them to the royal court. inquests into any misdeeds of sheriffs were held, which could result in their dismissal. henry and eleanor spoke many languages and liked discussing law, philosophy, and history. so they gathered wise and learned men about them, who became known as courtiers, rather than people of social rank. they lived in the great and strong tower of london, which had been extended beyond the original white tower, as had other castles, so that the whole castle and grounds were defended instead of just the main building. the tower of london was in the custody of one of the two justiciars. on the west were two strongly fortified castles surrounded by a high and deeply entrenched wall, which had seven double gates. towers were spaced along the north wall and the thames river flowed below the south wall. to the west was the city, where royal friends had residences with adjoining gardens near the royal palace at westminster. the court was a center of culture as well as of government. the game of backgammon was played. people wore belts with buckles, usually brass, instead of knotting their belts. london extended about a mile along the thames and about half a mile inland. it had narrow twisting lanes, some with a ditch down the middle for water runoff. most of its houses were two stories, the ground floor having booths and workshops, and the upper floor living space. most of the houses were wooden structures. the richer merchants' and knights' houses were built of stone. walls between houses had to be stone to a height of feet and thatched roofs were banned because there had been many fires. there was poor compliance, but some roofs were tiled with red brick tiles. the population was about , . there were over churches for public worship, thirteen monasteries (including nunneries), and st. paul's cathedral. all were built of stone. the churches gave a place of worship for every inhabitants and celebrated feast days, gave alms and hospitality to strangers, confirmed betrothals or agreements of marriage, celebrated weddings, conducted funerals, and buried the dead. the synod of westminster of prescribed that all marriages were to be performed by the church. a bare exchange of words was sufficient to constitute a marriage. church law required a warning prior to suspension or excommunication. monastic, cathedral, and parish schools taught young boys grammar so they could sing and read in church services. nuns taught girls. fish but no meat was eaten on fridays. there was dark rye bread and expensive white wheat bread. vegetables included onions, leeks, and cabbage. fruits included apples, pears, plums, cherries, and strawberries. water was obtained from streams running through the town to the thames and from springs. only the rich, palaces, and churches could afford beeswax candles; others had homemade tallow [cow or sheep fat] candles which smelled and gave off smoke. most people washed their bodies. even the poor had beds and bed clothes. the beds were often shared. few babies survived childhood. if a man reached , he could expect to live until age . thousands of londoners died during a hot summer from fevers, plague and the like. in london, bells heralded the start and finish of all organized business. the sellers of merchandise and hirers of labor were distributed every morning into their several localities according to their trade. vendors, craftsmen, and laborers had their customary places. some vendors walked the streets announcing their wares for sale. there were craft guilds of bakers, butchers, cloth workers, and saddlers, as well as of weavers. vendors on the thames river bank sold cooked fish caught from the river and wine from ships and wine cellars. cook shops sold roasted meats covered with hotly spiced sauces. london bridge was built of stone for the first time. it was supported by a series of stone arches standing on small man-made islands. it had such a width that a row of wood houses and a chapel was built on top of it. in the spring it was impassable by ships because the flow of water under it varied in height on either side of the bridge by several feet at half tide. the bridge had the effect of slowing down the flow upstream, which invited wherries and rowboats and stately barges of the nobility. in winters in which it froze over, there was ice skating, ice boating, and fishing through holes in the ice. outside each city gate were clusters of ragged buildings, small monasteries and hostelries, groups of huntsmen's kennels, and fencing schools. outside one of the gates, a horse market was held every week. horses wore horseshoes made of iron or of a crude steel. from the southwest gate of the city along the north river bank toward westminster, there was a gradually extending line of rich men's mansions and bishops' palaces. on the southern bank of the thames river was growing the disorderly suburb of southwark, with fishermen's and boatmens' hovels, and taverns and brothels that were frequented by drunkards, rakes, and whores. on the north side of the city was a great forest with fields and wells where students and other young men from the city took walks in the fresh evening air. in some fields, country folk sold pigs, cows, oxen and sheep. mill wheels turned at various streams. near london in the country was a glass factory. at sunset, the gates of london were closed for the night. all taverns had to be closed, all lights put out, and all fires banked or covered when the bell of the church of st. martin le grand rang at : p.m. anyone found on the streets after this curfew could be arrested. gangs of young nobles or gangs of thieves, cutpurses, and looters roamed the streets after dark and sometimes rioted. offenders were often beheaded and their heads placed on spikes on london bridge. men in london had begun weaving cloth, which formerly had been done by women. some of the cloth was exported. the weavers guild of london received a charter by the king in , the first granted to any london craft: "know that i have conceded to the weavers of london to hold their guild in london with all the liberties and customs which they had in the time of king henry [i], my grandfather; and that none may intermeddle with the craft within the city, nor in southwark, nor in other places pertaining to london except through them and except he be in their guild, otherwise than was accustomed to be done in the time of king henry, my grandfather ...so that each year they render thence to me two marks of gold at the feast of st. michael. and i forbid that any shall do injury or contumely to them on this account under penalty of pounds [ s.]. witness t[homas], chancellor, and warinus, son of gerard, chamberlain, at winchester." the liberties obtained were: ) the weavers may elect bailiffs to supervise the work of the craft, to punish defaulters, and to collect the ferm [amount owed to the king]. the bailiffs were chosen from year to year and swore before the mayor of london to do and keep their office well and truly. ) the bailiffs may hold court from week to week on pleas of debt, agreements, covenants [promises for certain performance], and minor trespasses. ) if any of the guild members are sued in any other court on any of the above pleas, the guild may challenge that plea to bring it to the guild court. ) if any member is behind in his share of the payment to the king, the bailiffs may distrain his loom until he has paid this. the weavers' guild punished members who used bad thread in their weaving or did defective weaving by showing the default to the mayor, with opportunity for the workman to make entreaty, and the mayor and twelve members of the guild then made a verdict of amercement of / mark and the workman of the cloth was also punished by the guild bailiffs according to guild custom.the weavers' guild tradition of brotherliness among members meant that injury to a fellow weaver incurred a severe penalty. if a weaver stole or eloigned [removed them to a distance where they were unreachable] any other weaver's goods falsely and maliciously, then he was dismissed from the guild and his loom was taken by the guild to fulfill his portion of the annual payment to the king. the weavers were allowed to buy and to sell in london freely and quietly. they had all the rights of other freemen of the city. paying an annual payment freed the weavers from liability to inconsequent royal fines. failure to make this payment promptly might have led to loss of the right, hence the rigorous penalty of distraint upon the looms of individual weavers who fell into arrears. thus from the middle of the s, the weavers enjoyed the monopoly of their craft, rights of supervision which ensured a high standard of workmanship, power to punish infractions of their privileges, and full control of their members. in this they stand as the prototype of english medieval guilds. these rights represented the standard which all bodies of craftsmen desired to attain. the right of independent jurisdiction was exceptional. in henry ii's charter to london, london did not retain its right to appoint its own sheriff and justice given by henry i. london's chief magistrate was the mayor, who was appointed by the king, until . then the mayor was elected yearly by the aldermen of the city wards and approved by the king. he was typically a rich prince chosen by the barons and chief merchants of london. the commoners had no voice in his selection, but they could still approve or disapprove of the actions of the city government at ward and folk motes. at certain periods, a king asserted royal power over the selection of mayor and governance of the city. there were three ways to become a citizen of london: being the son of a citizen, apprenticeship in a craft for seven years, and purchase of citizenship. london and westminster growth led to their replacing winchester as the capital. st. barthomew infirmary was established in london for the care of sick pilgrims traveling to the shrine of becket in canterbury. it had been inspired by a monk who saw a vision of st. barthomew telling him to build a church and an infirmary. trading was facilitated by the stabilization of the amount of silver metallic content of the english coinage, which was called "sterling" [strong] silver. the compass, a magnetic lodestone [leading stone] needle mounted on a cork and floated in a bowl of water, assisted the navigation of ships. with it, one could tell the general direction of a ship when the skies were cloudy as well as clear. and one could generally track one's route by using the direction and speed of travel to calculate one's new position. london became a major trading center for foreign goods from many lands. about % of the knights were literate. wealthy men sent their sons to school in monasteries to prepare them for a livelihood in a profession or in trade or to the town of oxford, whose individual scholars had migrated from paris and had attracted disciples for a long time. these schools grew up around st. mary's church, but had not been started by the church as there was no cathedral school in oxford. oxford had started as a burh and had a royal residence and many tradesmen. it was given its basic charter in by the king. this confirmed to it all the customs, laws and liberties [rights] as those enjoyed by london. it became a model charter for other towns. bachelors at oxford studied the arts of grammar, rhetoric, and logic, and then music, arithmetic, geometry, and astronomy, until they mastered their discipline and therefore were authorized to teach it. teaching would then provide an income sufficient to support a wife. the master of arts was analogous to the master craftsman of a guild. from , the civil law was studied, and shortly thereafter, canon law. later came the study of medicine. the use of paper supplemented the use of parchment for writing. irregular edged paper was made from linen, cotton, straw, and/or wood beaten to a pulp and then spread out over a wire mesh to dry. theologicians taught that the universe was made for the sake and service of man, so man was placed at the center of the universe. man was made for the sake and service of god. every freeman holding land of a lord gave homage and fealty to him, swearing to bear him faith of the tenement held and to preserve his earthly honor in all things, saving the faith owed to the king. homage was done for lands, for free tenements [including meadows, pastures, woods, and wastes], for services, and for rents precisely fixed in money or in kind. homage could be done to any free person, male or female, adult or minor, cleric or layman. a man could do several homages to different lords for different fees, but there had to be a chief homage to that lord of whom he held his chief tenement. homage was not due for dower, from the husband of a woman to whom a tenement was given as a marriage portion, for a fee given in free alms, or until the third heir, either for free maritagium [a marriage portion of land which is given with a daughter in marriage, that is not bound to service and passes to the daughter's heirs in whatever way had been stipulated by her family when the grant was made] or for the fee of younger sisters holding of the eldest. all fiefs to be inherited by the eldest son had to be intact. every lord could exact fealty from his servants. in this era, the english national race and character was formed. only a few barons still had lands in normandy. stories of good king arthur were popular and set ideals for behavior and justice in an otherwise barbaric age where force was supreme. his last battle in which he lay wounded and told a kinsman to rule in his place and uphold his laws was written in poem ("layamon's brut"). romantic stories were written and read in english. the custom of "bundling" was started by ladies with their knights, who would lie together in bed without undressing and with one in a sack the top of which was tied around his neck, as part of a romantic courtship. wealthy men often gave their daughters dowries in case they were widowed. this might be matched by a marriage settlement by a prospective husband. intermarriage had destroyed any distinction of normans by look or speech alone, except for the anglo-saxon manor villeins, who worked the farm land and composed about two-thirds of the population. villeins were bound to the land and could, on flight, be brought back to it. they could not give homage, but could give fealty. a villein had the equipment to farm, fish, make cheese, keep poultry, brew beer, hedge, and cut wood. although the villeins could not buy their freedom or be freed by their lord, they became less numerous because of the preference of landholders for tenants motivated to perform work by potential loss of tenure. also, the crown's protection of all its subjects in criminal matters blurred the distinction between free and unfree men. the boroughs were dominated by lords of local manors, who usually had a house in the borough. similarly, burgesses usually had farmland outside the borough. many boroughs were granted, by the king or manor lord, the right to have a common seal for the common business of the town. some boroughs were given the authority to confer freedom on the villein by enrolling him in their guild or allowing him to stay in the borough for a year and a day. the guilds met frequently in their drinking halls and drew up regulations for the management of their trade. each borough was represented by twelve reputable burgesses. each vill was represented by a reeve and four reputable men. certain towns sponsored great seasonal fairs for special goods, such as cloth. about % of the population lived in towns. in the early s, the horizontal-axle windmill was invented, probably in eastern england, on the analogy of the horizontal-axle watermill. it was very useful in flat areas where streams were too slow for a watermill unless a dam were built. but a dam often flooded agricultural land. some watermill wheels were moved by tidal currents. london guilds of craftsmen such as weavers, fullers, bakers, loriners (makers of bits, spurs, and metal mountings of bridles and saddles), cordwainers (makers of leather goods such as shoes), pepperers, and goldsmiths were licensed by the king, for which they paid him a yearly fee. there were also five bridge guilds (probably raising money for the future construction of london bridge in stone) and st. lazarus' guild. the wealthy guilds, which included the goldsmiths, the pepperers, and three bridge guilds had landholding members who had been thegns or knights and now became a class of royal officials: the king's minters, his chamberlain, his takers of wines, his collectors of taxes. the weavers of oxford paid s. [two marks] to have a guild. the shoemakers paid s. [five marks]. in , master carpenters, masons, and tilers made d. per day, their servers (the journeymen of a later time) made / d., free stone carvers / d., plasterers and daubers, diggers and sievers less. all received food in addition or / d. in its stead. sandwich was confirmed in its port rights by this charter: "henry ii to his sheriff and bailiffs of kent, greeting. i will and order that the monks of the holy trinity of canterbury shall have fully all those liberties and customs in sandwich which they had in the time of king henry my grandfather, as it was adjudged in pursuance of his command by the oath of twelve men of dover and twelve men of sandwich, to wit, that the aforesaid monks ought to have the port and the toll and all maritime customs in the same port, on either side of the water from eadburge gate as far as markesfliete and a ferryboat for passage. and no man has there any right except they and their ministers. wherefore i will and firmly command you and the men of sandwich that ye cause the aforesaid monks to have all their customs both in the port and in the town of sandwich, and i forbid any from vexing them on this account.and they shall have my firm peace." henry gave this charter to the town of bristol in : "know ye, that i have granted to my burgesses of bristol, that they shall be quit both of toll [a reasonable sum of money or portion of the thing sold, due to the owner of the fair or market on the sale of things tollable therein. it was claimed by the lord of the fee where the fair or market was held, by virtue of a grant from the crown either ostensible or presumed] and passage [money paid for crossing a river or for crossing the sea as might be due to the crown] and all custom [customary payments] throughout my whole land of england, normandy, and wales, wherever they shall come, they and their goods. wherefore i will and strictly command, that they shall have all their liberties and acquittances and free customs fully and honorable, as my free and faithful men, and that they shall be quit of toll and passage and of every other customs: and i forbid any one to disturb them on this account contrary to this my charter, on forfeiture of ten pounds [ s.]." john, when he was an earl and before he became king, granted these liberties to bristol about : ) -no burgess may sue or be sued out of bristol. ) -the burgesses are excused from the murdrum fine. ) -no burgess may wage duel [trial by combat], unless sued for death of a stranger. ) -no one may take possession of a lodging house by assignment or by livery of the marshall of the earl of gloucester against the will of the burgesses (so that the town would not be responsible for the good behavior of a stranger lodging in the town without first accepting the possessor of the lodging house). ) -no one shall be condemned in a matter of money, unless -according to the law of the hundred, that is, forfeiture of s. ) -the hundred court shall be held only once a week. ) -no one in any plea may argue his cause in miskenning. ) -they may lawfully have their lands and tenures and mortgages and debts throughout my whole land, [from] whoever owes them [anything]. ) -with regard to debts which have been lent in bristol, and mortgages there made, pleas shall be held in the town according to the custom of the town. ) if any one in any other place in my land shall take toll of the men of bristol, if he does not restore it after he is required to, the prepositor of bristol may take from him a distress at - - bristol, and force him to restore it. ) no stranger tradesman may buy within the town from a man who is a stranger, leather, grain, or wool, but only from a burgess. ) no stranger may have a shop, including one for selling wine, unless in a ship, nor shall sell cloth for cutting except at the fair. ) no stranger may remain in the town with his goods for the purpose of selling his goods, but for forty days. ) no burgess may be confined or distrained any where else within my land or power for any debt, unless he is a debtor or surety (to avoid a person owed a debt from distraining another person of the town of the debtor). ) they shall be able to marry themselves, their sons, their daughters and their widows, without the license of their lords. (a lord had the right of preventing his tenants and their families from marrying without his consent.) ) no one of their lords shall have the wardship or the disposal of their sons or daughters on account of their lands out of the town, but only the wardship of their tenements which belong to their own fee, until they become of age. ) there shall be no recognition [acknowledgment that something done by another person in one's name had one's authority] in the town. ) no one shall take tyne [wooden barrel with a certain quantity of ale, payable by the townsmen to the constable for the use of the castle] unless for the use of the lord earl, and that according to the custom of the town. ) they may grind their grain wherever they may choose. ) they may have their reasonable guilds, as well or better than they had them in the time of robert and his son william [john's wife's grandfather and father, who were earls of gloucester when the town and castle of bristol were part of the honor of gloucester]. ) no burgess may be compelled to bail any man, unless he himself chooses it, although he may be dwelling on his land. we have also granted to them all their tenures, messuages [dwelling house with adjoining land and adjacent buildings], in copses [thicket from which wood was cut], in buildings on the water or elsewhere to be held in free burgage [tenant to pay only certain fixed services or payments to his lord, but not military service (like free socage)]. we have granted also that any of them may make improvements as much as he can in erecting buildings anywhere on the bank and elsewhere, as long as the borough and town are not damaged thereby. also, they shall have and possess all waste land and void grounds and places, to be built on at their pleasure. newcastle-on-tyne's taxes were simplified in as follows: "know ye that i have granted and by this present charter have confirmed to my burgesses of newcastle upon tyne, and to all their things which they can assure to be their own, acquittance from toll and passage and pontage and from the hanse and from all other customs throughout all my land. and i prohibit all persons from vexing or disturbing them therein upon forfeiture to me." we grant to our upright men on newcastle-on-tyne and their heirs our town of newcastle-on-tyne with all its appurtenances at fee farm for pounds to be rendered yearly to us and our heirs at our exchequer by their own hand at the two terms, to wit, at easter pounds and at michaelmas pounds, saving to us our rents and prizes and assizes in the port of the same town. ranulph, earl of chester, made grants to his burgesses of coventry by this charter: "that the aforesaid burgesses and their heirs may well and honorably quietly and in free burgage hold of me and my heirs as ever in the time of my father and others of my ancestors they have held better more firmly and freer. in the second place i grant to them all the free and good laws which the burgesses of lincoln have better and freer. i prohibit and forbid my constables to draw them into the castle to plead for any cause, but they may freely have their portimote [leet court] in which all pleas belonging to me and them may be justly treated of. moreover they may choose from themselves one to act for me whom i approve, who a justice under me and over them may know the laws and customs, and keep them to my counsel in all things reasonable, every excuse put away, and may faithfully perform to me my rights. if any one happen to fall into my amercement he may be reasonably fined by my bailiff and the faithful burgesses of the court. furthermore, whatever merchants they have brought with them for the improvement of the town, i command that they have peace, and that none do them injury or unjustly send them into court. but if any foreign merchant shall have done anything improper in the town that same may be regulated in the portimote before the aforesaid justice without a suit at law." henry confirmed this charter of the earl's by as follows: i have confirmed all the liberties and free customs the earl of chester granted to them, namely, that the same burgesses may well and honorably hold in free burgage, as ever in the time of the father of the beforesaid earl, or other of his ancestors, they may have better or more firmly held; and they may have all the laws and customs which the citizens of lincoln have better and freer (e.g. their merchant guilds); all men brought to trade may be subject to the guild customs and assize of the town; those who lawfully hold land in the town for a year and a day without question and are able to prove that an accuser has been in the kingdom within the year without finding fault with them, from thence may hold the land well and in peace without pleading; those who have remained in the town a year and a day without question, and have submitted to the customs of the town and the citizens of the town are able to show through the laws and customs of the town that the accuser stood forth in the kingdom, and not a fault is found of them, then they may remain in peace in the town without question]; and that the constable of the aforesaid earl shall not bring them into the castle to plead in any case. but they may freely have their own portmanmote in which all pleas appertaining to the earl and to them may be justly treated of. moreover they may choose one from themselves to act for the earl, whom i approve, who may be a justice under the earl and over them, and who to the earl may faithfully perform his rights, and if anyone happen to fall into the earl's forfeiture he shall be acquit for pence. if by the testimony of his neighbors he cannot pay pence coins, by their advice it shall be so settled as he is able to pay, and besides, with other acquittances, that the burgesses shall not provide anything in corody [allowance in food] or otherwise whether for the said earl or his men, unless upon condition that their chattels shall be safe, and so rendered to them. furthermore, whatever merchants they have brought with them for the improvement of the town they may have peace, and none shall do them injury or unjustly send them into suit at law. but if any foreign merchant has done anything improper in the town that shall be amended [or tried] in the portmanmote before the aforesaid justice without a suit. and they who may be newcomers into the town, from the day on which they began to build in the town for the space of two years shall be acquit of all charges. mercantile privileges were granted to the shoemakers in oxford thus: "know ye that i have granted and confirmed to the corvesars of oxford all the liberties and customs which they had in the time of king henry my grandfather, and that they have their guild, so that none carry on their trade in the town of oxford, except he be of that guild. i grant also that the cordwainers who afterwards may come into the town of oxford shall be of the same guild and shall have the same liberties and customs which the corvesars have and ought to have. for this grant and confirmation, however, the corvesars and cordwainers ought to pay me every year an ounce of gold." a guild merchant for wool dominated and regulated the wool trade in many boroughs. in leicester, only guildsmen were permitted to buy and sell wool wholesale to whom they pleased or to wash their fells in borough waters. certain properties, such as those near running water, essential to the manufacture of wool were maintained for the use of guild members. the waterwheel was a technological advance replacing human labor whereby the cloth was fulled. the waterwheel turned a shaft which lifted hammers to pound the wet cloth in a trough. wool packers and washers could work only for guild members. the guild fixed wages, for instance to wool wrappers and flock pullers. strangers who brought wool to the town for sale could sell only to guild members. a guildsman could not sell wool retail to strangers nor go into partnership with a man outside the guild. each guild member had to swear the guildsman's oath, pay an entrance fee, and subject himself to the judgment of the guild in the guild court, which could fine or suspend a man from practicing his trade for a year. the advantages of guild membership extended beyond profit in the wool trade. members were free from the tolls that strangers paid. they alone were free to sell certain goods retail. they had the right to share in any bargain made in the presence of a guildsman, whether the transaction took place in leicester or in a distant market. in the general interest, the guild forbade the use of false weights and measures and the production of shoddy goods. it maintained a wool beam for weighing wool. it also forbade middlemen from profiting at the expense of the public. for instance, butchers' wives were forbidden from buying meat to sell again in the same market unless they cooked it. the moneys due to the king from the guilds of a town were collected by the town reeve. when the king wanted to raise an army, he summoned his major baron tenants-in-chief, who commanded their own armed dependent vassals, and he directed the sheriffs to command the minor tenants-in-chief and supply them with equipment. a baron could assemble an army in a day, but might use it to resist any perceived misgovernment by a king. armed conflict did not interfere much with daily life because the national wealth was still composed mostly of flocks and herds and simple buildings. machinery, furniture, and the stock of shops were still sparse. life would be back to normal within a week. henry wanted to check this power of the barons. so he took over or demolished their adulterine castles and restored the fyrd, which was a military draft of every freeman to serve in defense of the realm. at the king's call, barons were to appear in mail suit and helmet with sword and horse, knights and freeholders with s.[ marks] of rent or chattels in coat of mail with shield and lance, freeholders of s.[ marks] with lance and hauberk [coat of armor] and iron headpiece, burgesses and poorer freemen with lance and headpiece and wambais, and such as millers with pike and leather shirt. the spiritual and other baronies paid a commutation for personal service, called "scutage", at the rate of s. per knight's fee. barons and knights paid according to their knight's fee a scutage ranging from s. to s. as of , the military obligations of villeins were defined. the master of a household was responsible for every villein in his household. others had to form groups of ten and swear obedience to the chief of the group. the sheriff was responsible for maintaining lists of men liable for military service and procuring supplies. this national militia could be used to maintain the peace. the sheriff could call upon the military array of the county as a "posse comitatus" to take a band of thieves into custody or to quell disorder. for foreign wars, henry decided to use a mercenary army and a mercenary fleet. however, the nobility who were on the borders of the realm had to maintain their private armies for frequent border clashes. the other nobility now tended towards tournaments with mock foot battles between two sides. although subject to knightly rules, serious injury and death often resulted. for this reason, the church opposed them, but unsuccessfully. new taxes replaced the danegeld tax. freeholders of land paid taxes according to their ploughable land ("hidage", by the hide, and later "carucage", by the smaller norman carucate). the smaller measure curtailed estates and increased taxation. it was assessed from - s. per carcuate [ acres] and collected for the king by knights with little or no remuneration, and later by inquest of neighbors. the towns and demesne lands of the crown paid a tax based on their produce that was collected by the itinerant justices. merchants were taxed on their personal property, which was determined by an inquest of neighbors. clergy were also taxed. this new system of taxation increased the royal income about threefold. there was a standard for reliefs paid of s. [ pounds] for a knight's fee and , s. [ pounds] for a barony. at the end of henry's reign, his treasure was over , pounds. every hide of land paid the sheriff s. annually for his services in the administration and defense of the county. barons and their tenants and subtenants were offered an alternative of paying shield money ["scutage"] of s. d. per fee in commutation for and instead of military service for their fiefs. this enabled henry to hire soldiers who would be more directly under his own control and to organize a more efficient army. henry ii restored the silver coinage to its standard of purity. the first great inflation in england occurred between and . most goods and services increased threefold over these forty years. great households, whether of baron, prelate, monastery, or college gave their officers and servants allowances of provisions and clothing called "liveries". the officer of such departments as the buttery [cellar storing butts of wine], the kitchen, the napery [for linen cloth], and the chandlery had his fixed allowances for every day and his livery of clothing at fixed times of the year or intervals of years. the administration of a great estate is indicated by the pipe roll of the bishopric of winchester, - , as follows: "downton: william fitzgilbert, and joselyn the reeve, and aylward the cellarer render account of pounds s. d. for arrears of the previous year. they paid and are quit. and of pounds s. d. for landgafol. and of d. by increment of tax for a park which william of witherington held for nothing. and of s. d. by increment of tax for half a virgate of land which james oisel held without service. and of s. for assize pleas in the new market. and of s. by increment of tax for other assize pleas in the market this year. sum of the whole tax pounds s. d. in quittance of one reeve, s. in quittance for repairing the bridge, s.; of one forester, s.; of two haywards from downton and wick, s.; of one hayward from witherington, d.; of fourteen drivers from downton, wick, and nunton, for the year, s.; of two drivers from witherington for the year, s. d.; of two drivers for half the year, s.; of one swineherd, of one neaterd, of one cowherd, for the year, s.; of three shepherds from wick, barford, and nunton, for the year, s.; of one shepherd from witherington, for the year, d.; of four customary tenants, for the year, s. sum of the quittances, s. d. remainder pounds. livery: for livery to john the dean, for christmas tax, pounds s. by one tally. to the same for easter tax, pounds by one tally. to the same for st. john's tax, pounds by one tally. to the same for st. michael's tax, pounds s. by one tally. to the same for corn [grain] sold in the field pounds by two tallies. to the same for standing corn [growing crops of grain], purchases, and cheeses, pounds s. d. to the same for wool, pounds s. d. by one tally. to the same for tallage pounds by one tally. sum: pounds s. d. expenses: for ironwork of carts for year and one cart for half the year, s. d. for shoeing of plough horses for the year, s. d. for wheels for carts, s. d. for carts made over, d. before the arrival of the carpenter. for wages of the smith for the year, s. d. for one cart bound in iron bought new, s. d. for wheels purchased for one cart to haul dung, d. for leather harness and trappings, iron links, plates, halters, d. for purchase of ropes, d. for purchase of sacks, d. for purchase of locks for the granary, d. for making gates for the sheepfold, s. for one gate for the farm yard, d. for an ax and tallow purchased and for repairing the spindles of the mill for the year, s. d. for one millstone purchased for the mill s. for making one gate near the mill, d. for meat prepared in the larder, s. for beer bought for cleaning carcasses, s. d. for digging perches of land around the pasture in the marsh, s. d.; for each perch d. ob. for the dovecote newly made, s. d. ob. for cutting thick planks for flooring both dispensary and butlery, s. d. for nails or pegs bought for planking beyond the cellar, d. for enclosing the garden by making gates, s. d. ob. for digging in the gardens, s. d. for the winter work of carts, s. d. for the lent work of carts, s. d. for spreading acres with dung, d. for threshing quarters of wheat at mardon for seed, s. for winnowing the same, d. for winnowing quarters of grain for seed, s. d. for threshing quarters of grain s.; for each quarter d. for threshing quarters of mixed corn [grain], s. d. for threshing quarters of barley, s. d. for threshing quarters of oats, s. d. ob. for hauling gravel to the bridge and causeway, d. for cost of dairy, viz., tines of salt, cloth, and pots, s. d. for purchase of oxen, pounds s. for hoeing acres, s. d. for wages of two carters, one neatherd, for the year, s. for wages of one carpenter for the year, s. d. for wages of one dairy woman, s. d. for payment of mowers of the meadow at nunton, d. for sheep purchased, s. for wages of one neatherd from nunton, d. for carrying casks of wine by walter locard, in the time of martinmas, s. d. for the carrying of casks of wine from southampton to downton by the seneschal, s. d. at the feast of st. lawrence. for digging perches in the farmyard, s. d.; for each perch d. ob. for allowance of food of robert of lurdon, who was sick for days, with his man, s. d. for allowance of food to sewal who was caring for horses of the lord bishop for weeks, d. for allowance of food for roger walselin, for the two times he made gifts to the lord king at clarendon, s. d. by two tallies. for allowance of food of master robert basset, for journeys, s. d. ob. for livery of william fitzgilbert, s. d. for ells of canvas purchased for laying over the wool, and cushions prepared for the court, s. for sheep purchased, with lambs, s. sum: pounds. d. sum of livery and expenses: pounds s. d. and there is owing: pounds s. d. ob. produce of granary: the same render account of and a half quarters and strike from all the produce of grain; and of quarters brought from mardon. sum: and a half quarters and strike. for sowing acres, quarters. for bread for the lord bishop, and a half quarters delivered to john de dispensa by three tallies. for the balance sold, quarters and strike. the same render account of and a half quarters from all the produce of small corn [grain]. for the balance sold, all. the same render account of quarters and strike from all the produce of mixed corn [grain]. for seeding acres, quarters and strike. for bread for autumnal works, quarters. for the balance sold, quarters. the same render account of and a half quarters from all the produce of barley. for sowing and a half acres, and a half quarters. for payment for carts, quarter. for payment for hauling dung, quarters. for allowance of food of two carters, one carpenter, one neatherd, one dairy woman, for the year, and a half quarters. for feeding hogs in the winter, quarters. for the balance sold, and a half quarters. it is quit. the same render account of quarters and bushels from all the produce of oats. in sowing and a half acres, and a half quarters. for prebends [revenues paid for a clergyman's salary] of the lord bishop and lord king, on many occasions, and a half quarters and bushels, by five tallies. for prebends of roger wakelin, and a half quarters and bushels. for prebends of master robert basset, and a half quarters and bushel. for provender [dry food for livestock] of horses of the lord bishop and horse of richard marsh, for weeks, and a half quarters and bushels. for provender of horses of the lord bishop who stayed nights at downton, quarters. for that sent to knoyle, quarters. for provender of horse of robert of lurdon for weeks, and a half quarters. for prebends of two carters quarters and bushels. for the balance sold, quarters. and there remains quarters and strike. the same render account of and a half quarters from the whole produce of beans. for planting in the garden half a quarter. for the balance sold, quarters. it is quit. the same render account of quarters and strike from all the produce of peas. for sowing acres, and a half quarters. for the balance sold and a half quarters and strike. it is quit. the same render account of quarters from all the produce of vetches [pea plants used for animal fodder]. for feeding pigs in the winter, all. it is quit. beasts of burden: the same render account of oxen remaining from the previous year. and of yoked from useless animals. and of from the will of robert copp. and of purchased. sum: . of living ones sold, . of dead, . sum: . and there remain oxen. the same render account of goats remaining from the previous year. all remain. the same render account of cows remaining from the previous year. and of yoked from useless animals, and of found. sum: . by death, . by killing, brought for the need of the lord bishop at cranbourne, . sum: . and there remain cows. the same render account of heifers and steers remaining from the previous year. in yoked cows, heifers. in yoked oxen, bulls. sum: . the same render account of yearlings remaining from the previous year. by death, . there remain , of which are female, male. the same render account of calves born this year from cows, because the rest were sterile. in tithes, . there remain . the same render account of sheep remaining from the previous year. and of sheep for the payment of herbage, after birth, and before clipping. and of bought before birth. and of young ewes mixed with two-year-olds. sum: . in live ones sold at the time of martinmas, . in those dead before birth, . in those dead after birth and before shearing, . sum: . and there remain sheep. the same render account of wethers [castrated rams] remaining from the previous year. and of wethers mixed with two-year- olds. and of rams from lindsey, which came by brother walter before shearing. sum: . in living ones sold at the time of martinmas, wethers, rams. paid to the men of bishopton before shearing by writ of the seneschal, . by death, before shearing, . sum: . and there remain sheep. the same render account of old sheep remaining, with lambs from the previous year. by death before shearing, . and there remain ; whence are young ewes, mixed with sheep, and males, mixed with wethers. the same render account of lambs born from sheep this year because were sterile, and aborted. in payment of the smith, ; of shepherds, . in tithes, . in those dead before shearing, . sum: . and there remain lambs. the same render account of large sheepskins whence were from the rams of lindsey. in tithes, . in payment of three shepherds, . in the balance sold skins with skins from lindsey which made pondera. the same render account of lamb skins. in the balance sold, all, which made and a half pondera. the same render account of cheeses from arrears of the previous year. and of small cheeses. and of larger ones from the arrears of the previous year. and of cheeses which were begun the th of april and finished on the feast of st. michael, both days being counted. and they made cheeses two by two for days, viz. from the th april to the vigil of the feast of st. peter in chains, both days being counted. sum: cheeses. in tithes . in payment of a shepherd, and mowers of the meadow from nunton, . in duty of a carter, . in autumnal work, . in expenses of the bishop in the kitchen, by one tally. in the balance sold, cheeses, which made heads, from arrears of the previous year. in the balance sold, cheeses, which made heads in this year. in expenses of the lord king and lord bishop on the feasts of st. leonard and st. martin, small cheeses, and larger ones from the arrears of the previous year. and there remain small cheeses which make one head. the same render account of hogs remaining from the previous year. and of that were born of sows. sum: pigs. in tithes, . by death, . in those killed for the larder, . sum: pigs. and there remain pigs. also suckling pigs. sum of the whole: pigs. the same render account of chickens from arrears of the previous year. and of chickens for cheriset. sum: . in expenses of the lord bishop on the feast of st. martin, by one tally. in expenses of the same on the feast of st. leonard, , by one tally. in expenses of the lord king and bishop on the feast of the apostles peter and paul, chickens, by two tallies. in allowance for food for roger wakelin, . in allowance of food for master robert basset, . by death, . sum: chickens. it is quit. the same render account of chickens, sticae of eels, suckling pigs, freed for the expenses of the lord king and bishop. from the larder: the same freed for the expenses of the lord bishop meat of cows taken to cranbourne. the same render account of sides of bacon, arrears of the previous year. and of oxen and quarter of old beef from arrears of the previous year. and of hogs from downton. and of hogs from mardon. and of hogs from overton. and of hogs from high-clere. and of hogs from harwell. and of hogs from knoyle. sum: hogs, and meat of oxen and one quarter. in expenses of the lord bishop at the feast of st. martin, sides of bacon. in expenses of the same at the feast of st. leonard, sides of bacon, the meat of oxen, and quarter of an ox. in expenses of the same on the morrow of the feast of the holy cross, delivered to nicolas the cook, sides of bacon. in expenses of the lord bishop delivered to the same cook at knoyle on the saturday before the feast of st. michael, sides of bacon. in expenses of the same and of the lord king on the feast of the apostles peter and paul, sides of bacon. in allowance of food to master robert basset on the feast of all saints, half a side of bacon. in allowance of food to the same on wednesday and thursday before pentecost, side of bacon. in those sent to knoyle for autumnal work, sides of bacon. in three autumnal festivals at downton, and a half sides of bacon. sum: sides of bacon. and there remain sides of bacon. the same render account of skins, sausages, and offal of the said hogs. in expenses of the lord king and lord bishop at the feast of st. leonard, all. nothing remains." king richard the lion-hearted, unlike his father, was interested in warfare. he spent most of his term on crusade to recover jerusalem. for his expenses, he imposed a tax of one-tenth of rents and income from personal property and goods. he also sold town charters, heiresses and heirs, widows, sheriffdoms, justiceships, earldoms, and licenses for tournaments. in , the bishop barons had refused to pay for a campaign of richard's war in normandy arguing that military service was only due within the kingdom of england. when richard was captured, every person in the realm was required to pay a part of his ransom of , pounds, which was double the whole revenue of the crown. aids, tallages, and carucage were imposed. the heaviest impost was one-fourth of revenue or of goods from every person.the crusaders' contact with arabs brought to england an expansion of trade, arab horses, and arabic numerals, which included "zero" and greatly facilitated arithmetic, which was very difficult with roman numerals. the church decreed that those who went on these crusades would be remitted of their sins. at the end of this period was the reign of king john, a short man. after his mother eleanor's death in , john ruled without her influence. he had no conscience and his oaths were no good. he trusted and was trusted by no one. he had a huge appetite for money. he imposed , pounds [ , marks] on london for confirmation of its charter. he imposed levies on the capital value of all personal property and goods. it began the occasional subsidies called "tenths and fifteenths" from all people on incomes from movables: one-tenth from boroughs and royal demesne land, and one-fifteenth elsewhere. he sold the wardships of minors and the marriages of heiresses to the highest bidder, no matter how base. he appointed unprincipled men to be both sheriff and justice, enabling them to blackmail property holders with vexatious writs and false accusations. writs were withheld or sold at exorbitant prices. crushing penalties were imposed to increase the profits of justice. he asserted over fowls of the air the same exclusive right as over beasts of the forest. the story of robin hood portrays john's attempt to gain the crown prematurely while richard was on the crusades to recover jerusalem for christendom. in , strong northern barons refused a royal demand for service in france or scutage, arguing that the amount was not within custom or otherwise justified. john had private and public enemies. no one trusted him and he trusted no one. his heavy handed and arbitrary rule quickly alienated all sectors of the population: other barons, bishops, london, and the commons. they joined the barons to pressure him to sign the magna carta, much of which restated henry ii's work. since john had extracted many heavy fines from barons by personally adjudging them blameworthy in disputes with others, the barons wanted judgment by their peers under the established law of the courts. in arms, the barons forced john to sign the magna carta correcting his abuses. the law during the s and s, changes took place with regard to wills which gradually established a definite common law. they were: the king's court condemns the post obit gift of land because it was rung from a man in the agony of dying when he had most probably lost his memory and his reason, and it disappeared in the late s, except for burgage tenements. the primogeniture scheme for the descent of land had been well established in the course of the s and the concept of a definite heir as appointed by god was now established. heirship now has nothing to do with chattels. the church takes jurisdiction by over succession of chattels and succession assumes a testamentary character with witnesses and with an executor to carry out the dead man's will and pay his debts. a will only dealt with the dead man's part of his chattels, the law providing parts for the wife and children. if there were both wife and children, the wife took one-third and the children, except for the heir, one-third and the man could will the remaining third. if there is a wife but no child or a child but no wife, one half went to the surviving wife or children, except for the heir, and one-half was governed by the will. if there was no will, which was rare, the situation was unsettled, but usually the church distributed the remaining portion for the good of the dead man's soul. by statute, no one, including the lord of a manor, may take land from anyone else, for instance, by the customary process of distress, without a judgment from the royal court. this did not apply to london, where a landlord leasing or renting land could take distress in his fee. no one, including the lord of a manor, shall deprive an heir of the land possessed by his father, i.e. his birthright. a tenant may marry off a daughter unless his lord shows some just cause for refusing to consent to the marriage. a tenant had to pay an "aid" to his lord when the lord's daughter married, when the lord's son was knighted, or when the lord's person was ransomed. a man [or woman] may not will away his land, but he may sell it during his lifetime. the land of a knight or other tenant of a military fee is inherited by his eldest son. the socage land of a free sokeman goes by its ancient custom before the norman conquest. if a man purchased land after his marriage, his wife's dower is still one-third of the land he had when they married, or less if he had endowed her with less. but he could then enlarge her dower to one-third of all of his lands. the same rule applied if the man had no land, but endowed his wife with chattel or money instead. dower law prevented a woman from selling her dower during the life of her husband. but he could sell it or give it away. on his death, its possessor had to give the widow the equivalent worth of the property. a widower with a child born of the marriage had all his wife's lands by curtesy of the nation for his lifetime to the exclusion of her heirs. the capital messuage [chief manor] could not be given in dower or divided, but went in its entirety to its heir. heirs were firstly sons, then daughters jointly, then grandsons per stirpes, then granddaughters per stirpes, then brothers, and then sisters of the decedent. [by taking "per stirpes" instead of "per capita", a person's share goes to that person's heirs if that person predeceases the ancestor-decedent.] male heirs of land held by military service or sons of knights who were under the age of twenty-one were considered to be in custody of their lords. the lord had wardship over the heir's land, excluding the third that was the widow's dower for her life. he also had wardship over the heir's body or person and had the right to arrange the ward's marriage, which he did as early ass when the ward was age . both wardships were lucrative and could be bought and sold. the heir's guardian had to maintain the heir in a manner suitable to his dignity and restore to him when he came of age his inheritance in good condition discharged from debts. otherwise the lord could take the profits of the land. the guardianship was not fiduciary. the ward lived with his guardian and was taught to fight. when he came of age, he did homage and fealty for the land. the mother did not have a right to the guardianship of a son who was an heir. male heirs of sokemen who were under the age of fifteen were in the custody of their nearest kindred. the son of a burgess came of age when he could count money, measure cloth, and manage his father's concerns. female heirs remained in the custody of their lords until they married. the lord was bound to find a marriage for his ward when she became fourteen years of age and then deliver her inheritance to her. she could not marry without her lord's consent, because her husband was expected to be the lord's ally and to do homage to him. but if a female heir lost her virginity, her inheritance escheated to her lord. a woman with property could not do homage because she could not perform military service, but she generally swore fealty. she could receive homage from men. bastards were not heirs, even if their father married their mother after birth. any adult inheriting land had to pay a "relief" to the lord of the land. for a knight's fee, this was s. for socage land, this was one year's value. the amount for a barony depended upon the king's pleasure. heirs (but not widows) were bound to pay the debts of their fathers and ancestors. a man who married a woman who had inherited land could not sell this land without the consent of its heirs. when a man dies, his wife shall take one-third and his heirs shall take one-third of his chattels [movables or personal property]. the other third he may dispose of by will. if he had no heirs and no will, all his chattels would escheat to his lord. any distribution of chattels would take place after all the decedent's debts were paid from the property. a will required two witnesses. the testator could name an executor, but if he did not, the next of kin was the executor. a will could not be made by a man on his death bed because he may well have lost his memory and reason. also, he could not give to a younger son if in so doing, he would deprive his lawful heir. but he could give a marriage gift to a daughter regardless of the lawful heir. usury was receiving back more than what was lent, such as interest on a loan of money. when a usurer died, all his movables went to the king. a villein may not buy his own freedom (because all that he has is his lord's), but may be set free by his lord or by someone else who buys his freedom for him. he shall also be freed if the lord seduced his wife, drew his blood, or refused to bail him either in a civil or criminal action in which he was afterwards cleared. but a freed villein did not have status to plead in court, even if he had been knighted. if his free status were tried in court, only a freeman who was a witness to his being set free could avail himself of trial by combat to decide the issue. however, if the villein remained peacefully in a privileged town a year and a day and was received into its guild as a citizen, then he was freed from villeinage in every way. a freeman who married a villein lost his freedom. if any parent of a child was a villein, then the child was also a villein. all shipwrecked persons shall be treated with kindness and none of their goods or merchandise shall be taken from them. if one kills another on a vessel, he shall be fastened to the dead body and thrown with it into the sea. if one steals from another on a vessel, he shall be shaven, tarred and feathered, and turned ashore at the first land. passage on the thames river may not be obstructed by damming up the river on each side leaving a narrow outlet to net fish. all such weirs shall be removed. judicial procedure henry ii wanted all freemen to be equally protected by one system of law and government. so he opened his court, the royal court, to all people of free tenure. a court of five justices professionally expert in the law (rather than earls and barons), traveled with the king, and on points of difficulty consulted with him. justices began to be more than presiding officers; they, instead of the lay and clerical tenants-in-chief who attended, rendered the judgments. the chief court was in westminster, where the weightiest decisions were made. other professional itinerant justices appeared periodically in all counties of the nation to hear certain criminal and civil cases and to hear citizens' private civil suits [common pleas]. they came to perform many other tasks, including promulgating and enforcing new legislation, seeking out encroachments on royal rights, reviewing the local communities' and officials' performance of their public duties, imposing penalties for failure to do them or for corruption, gathering information about outlaws and nonperformance of homage, and assessing feudal escheats to the crown, wardships to which the king was entitled, royal advowsons, feudal aids owed to the king, tallages of the burgesses, and debts owed to the jews. the decision-making of itinerant justices on circuits begins the process which makes the custom of the royal court the common law of the nation. the county courts, where the traveling justices heard all manner of business in the counties, adopted the doctrines of the royal court, which then acquired an appellate jurisdiction. the itinerant justices came from the same small group of royal justices who were on the royal court and the exchequer, which was headed by the justiciar. difficult cases were decided by the king and wise men of his council. the royal court was chiefly concerned with ) the due regulation and supervision of the conduct of local government, ) the ownership and possession of land held by free tenure ("free tenement" was decided by justices to be one held for life or one held heritably [a fee]), and ) the repression of serious crime, including homicide, mayhem [injuring a limb so as to make it useless], robbery, arson, and rape. henry was determined to protect lawful seisin of land and issued assizes giving the royal court authority to decide land law issues which had not been given justice in the county or lord's court. but he did not ordain that all litigation respecting free tenements, e.g. right of seisin, should take place in the king's court. rather he gave protection to mere possession of land, which could be justified because possession was intimately associated with the maintenance of the king's peace. these assizes included issues of novel disseisin [recent ejectment] of a person's free tenement or of his common of pasture which belonged to his freehold. by the assize of novel disseisin, an ejected possessor could have a jury of recognitors decide whether the ejectment had been just or not. though the petty assize of disseisin only provided a swift preliminary action to protect possession pending the lengthy and involved grand assize on the issue of which party had the more just claim or ultimate right of seisin, the latter action was only infrequently invoked. the temptation of a strong man to seize a neighbor's land to reap its profits for a long time until the neighbor could prove and enforce his right was deterred. any such claim of recent dispossession [novel disseisin] had to be made within three years of the disseisin. an example of a writ of novel disseisin is: the king to the sheriff, greeting. n has complained to me that r unjustly and without a judgment has disseised him of his free tenement in [houndsditch] since my last voyage to normandy. therefore i command you that, if n gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until sunday after easter. and meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighborhood, and their names endorsed on this writ. and summon them by good summoners to be before me or my justices on the sunday after easter, ready to make the recognition. and summon r. or his bailiff if he himself cannot be found, on the security of gage [something given as secuxrity for performance] and reliable securities to be there then to hear the recognition. and have there the summoners, and this writ and the names of the sureties. witness etc. then an assize panel of recognition summoned concurrently with the defendant and before he had pleaded, viewed the land in question and answered, from their knowledge, these questions of fact: ) was the plaintiff disseised of the freehold in question, unjustly and without judgment? ) did the defendant commit the disseisin? testimony of a warrantor (or an attorney sent by him in his place) or a charter of warranty served to prove seisin by gift, sale, or exchange. no pleadings were necessary and the action could proceed and judgment given even without the presence of the defendant. the justices amerced the losing party with a monetary penalty. a successful plaintiff might be awarded damages to compensate for the loss of revenue. there was also a writ for issues of inheritance of land called "mort d'ancestor". by the assize of mort d'ancestor, an heir of a tenant who died and who was refused the land by the lord could have this refusal determined to be just or unjust. for this issue, the royal court used an similar assize panel of twelve men to decide whether the ancestor was seised as of fee in his demesne, if the plaintiff was the nearest heir, and whether the ancestor had died, gone on a crusade but not returned, or had become a monk. then it could give possession to the heir. since about , heiresses divided the land of their father if there was no son. the widow, of course, retained her dower rights. as of , the widow held her dower from the heir instead of from the husband's lord. if the heir was a minor, the guardian lord would be in actual control of the land. a national policy was implemented that in the case of the death of a freeholder, the rights of the family, his will, and his debts were to be provided for before relief was paid to his lord. eventually royal justices acquired authority to decide the ultimate question of right to land using the grand assize as an alternative to the traditional procedures which ended in trial by combat. issues of the ultimate right of seisin were brought to the royal court by a contestant in a local court who "put himself [or herself] upon the king's grand assize". the assize consisted of twelve knights from the county or neighborhood who were elected by four knights of the same county or neighborhood (selected by the sheriff or the suitors) and who were known as truthful men and were likely to possess knowledge of the facts, either from personal seeing or hearing, or from statements which their fathers had made to them from their personal knowledge. the avenue by which a person who felt he had not had justice in the manor court on his claim for certain freehold land appealed to the king was by writ of right after the manor court's decision or by a writ praecipe during the manor court's proceeding. an example of a writ praecipe is: "the king to the sheriff greeting. command [praecipe] n. to render to r. justly and without delay one hide of land in a certain vill, which the said r. complains that the aforesaid n. is withholding from him. if he does not do so, summon him by good summoners to be before me or my justices on the day after the octaves of easter, to show why he has not done so. and have the summoners and this writ. witness." when the parties appeared in court, the claimant states his suit such as: "i claim against this n. the fee of half a knight and two carucates of land in a certain vill as my right and my inheritance, of which my father (or grandfather) was seized in his demesne as of fee in the time of king henry the first, and from which he took the profits to the value of five shillings at least, in grain and hay and other profits; and this i am ready to prove by this freeman of mine, h., and if any evil befalls him them by this other man or by this third man, who saw and heard it". then the defendant chose to deny the claim word for word with proof by combat or to put himself upon the grand assize of the king. if he chose trial by combat, the parties or their champions fought. the party losing, usually by crying craven, had to pay a fine of s. if the grand assize was chosen, the action was removed to the royal court. a writ of grand assize was issued as follows: "the king to the sheriff, greeting. summon by good summoners the following twelve, namely, a. b. ..., to be before me or my justices at a certain place on a certain day, ready to declare on oath whether n. or r. has the greater right in one hide of land (or other things claimed) which the aforesaid r. claims against the aforesaid n., who is tenant, and in respect of which the aforesaid n., who is tenant, has put himself upon my assize and has sought a recognition to determine which of them has the greater right in the things claimed. and meanwhile the twelve shall view the land (or tenements [including meadows, pastures, woods, wastes, and rights of common] from which the services are demanded). and summon by good summoners n., who is tenant, to be there to hear the recognition. witness..." the claimant could object to any of the twelve knights for just cause as determined by the court. each of the twelve gave an oath as to whether the plaintiff's or the defendant's position was correct. this oath was not to speak falsehood nor conceal truth according to knowledge gained by eyewitness or "by the words of their fathers and by such words as they are bound to have such confidence in as if they were their own". if any did not know the truth of the matter, others were found until twelve agreed [the recognitors] on which party had the greater right. perjury was punished by forfeiture of all one's goods and chattels to the king and at least one year's imprisonment. if the tenant in court vouched another to warranty, such as the lord to whom he paid homage, that warrantor would stand in his place in the proceedings. if the warrantor lost, he would have to give to his vassal equivalent land in exchange. burgage tenure was not usually decided by assize. also, if the parties were relatives, neither the assize nor the combat was available to them, but the matter had to be decided by the law of inheritance. itinerant justices could conduct these assizes: petty and grand. in , the hundred is empowered to act on all the business of the session, including all recognitions and petty assizes ordered by the king's writ, where the property in dispute was worth no more than s. [ten pounds] a year. the four knights came to be selected by the suitors of the county court rather than by the sheriff. this assize procedure extended in time to all other types of civil actions. removable to the royal court from the county courts were issues of a lord's claim to a person as his villein, service or relief due to a lord, dower rights, a creditor's refusal to restore a gage [something given as security] to a debtor who offered payment or a deposit, money due to a lender, a seller, or a person to whom one had an obligation under a charter, fish or harvest or cattle taken from lands unjustly occupied, cattle taken from pasture, rights to enjoy a common, to stop troubling someone's transport, to make restitution of land wrongfully occupied, to make a lord's bailiff account to him for the profits of the manor. as of , pleas concerning amounts of money less than s. were not heard by the royal court. the royal court also decided disputes regarding baronies, nuisance or encroachments on royal land or public ways or public waterways, such as diverting waters from their right course and issues of nuisance by the making or destroying of a ditch or the destruction of a pond by a mill to the injury of a person's freehold. other pleas of the crown were: insult to the royal dignity, treason, breaches of safe-conducts, and injury to the king's servants. henry involved the royal court in many criminal issues, using the agencies of the county and hundred courts. to detect crimes, he required itinerant royal justices to form juries of presentment {indictment] composed of usually knights or other landholders of every neighborhood and respectable men of each township and ask them if any person were suspected of any murder, robbery, theft, etc. (these later evolved into grand juries). these assizes were an ancient institution in many parts of the country. what henry's assize did was to insist upon the adoption of a standard procedure everywhere systematically. the procedure was made more regular instead of depending on crime waves. if indicted, the suspected persons were then sent directly to the ordeal. henry abolished trial by compurgation in the royal courts. if determined guilty, the offender forfeited his chattels to the king and his land reverted to his landlord. the penalty prescribed by the assize of clarendon of was loss of a foot and abjuring the realm. the assize of northhampton of added loss of the right hand. often, a man who had a bad reputation had to abjure the realm even if he had successfully undergone the ordeal. the most serious criminal matters such as killing the king or sedition or betraying the nation or the army, fraudulent concealment of treasure trove [finding a hoard of coins which had been buried when danger approached], breach of the king's peace, homicide, murder (homicide for which there were no eyewitnesses), burning (a town, house, men, animals or other chattel for hatred or revenge), robbery, rape and falsifying (e.g. false charters or false measures or false money) were punishable by death or loss of limb. murders were now punished alike because the applicability of the murdrum fine couldn't be determined since it was impossible to prove that the slain man had been english since he would have been mutilated to hide his nationality. women did not serve on juries. having the jury of presentment precluded free men from being sent to the ordeal by compurgation oaths of the villeins. as of , this jury of presentment procedure applied not only to criminal cases, but also to civil, and fiscal cases. as before, a person could also be brought to trial by the accusation of the person wronged by a felony ["appeal"]. if the accused still denied the charge after the accuser testified and the matter investigated by inquiries and interrogation and then analyzed, trial by combat was held, unless the accuser was over the age of sixty or maimed, in which case the accused went to the ordeal. the procedure of henry ii's assizes was extended from case to case as men lost faith in the older types of proof. the ordeal fell into disuse when the church prohibited blessing of ordeals in its lateran council of . henry introduced the petty or trial jury of reputable men to provide a workable alternative to the ordeal, compurgation, and combat. these jurors were expected to know or to find out the facts that could lead to a decision. gradually, witnesses had to be brought in to tesify to facts the jurors didn't know. housebreaking, harboring outlaws, and interference with the royal perquisites of shipwreck and the beasts of the sea which were stranded on the coast [such as whales and sturgeon] were also punishable in the royal court. trespass was a serious and forcible breach of the peace onto land that developed from the criminal law of felony. trespass becomes a general term for almost all wrongful acts and defaults against a person, land, or chattels. it covered only direct damages due to physical contact. there are two main punishments: ) amercement of a sum of money deetermined by at least two peers of the offender and ) imprisonment in gaol redeemable by agreement to a fine after a couple of years in gaol. another punishment was abjuration of a town or of the realm. in boroughs, an offending burgess may lose liberties or have to abjure their trade or craft. pillory and tumbrel [e.g.ducking stool] was usual for bakers and alewives who broke the assizes of bread and beer, which was often. the royal court had grown substantially and was not always presided over by the king. to avoid court agents from having too much discretionary power, there was a systematic procedure for bringing cases to the royal court. first, a plaintiff had to apply to the king's chancery for a standardized writ into which the cause had to fit. the plaintiff had to pay a fee and provide a surety that the plea was brought in good faith. the progress of the suit was controlled at crucial points by precisely formulated writs to the sheriff, instructing him for instance, to put the disputed property under royal protection pending a decision, to impanel an assize and have it view the property in advance of the justices' arrival, to ascertain a point of fact material to the plea, or to summon a 'warrantor' to support a claim by the defendant. the royal court kept a record on its cases on parchment kept rolled up: its "rolls". the oldest roll of is almost completely comprised of land cases. anyone could appoint an agent, an "attorney", to appear in court on his behalf, it being assumed that the principal could not be present and royal authorization given. a wife could represent her husband. the principal was then bound by the actions of his agent. gradually men appeared who made a business of representing whoever would employ them. the common law system became committed to the "adversary system" with the parties struggling judicially against each other. the royal court took jurisdiction over issues of whether certain land was civil or ecclesiastical [assize utrum], and therefore whether the land owed services or payment to the crown or not. it also heard issues of disturbance of advowson, a complex of rights to income from a church and to the selection of a parson for the church [assize of darrein [last] presentment]. by this assize, the identity of the patron who last presented an incumbent to a particular church could be discovered. many churches had been built by a lord on his manor for his villeins. the lord had then appointed a parson and provided for his upkeep out of the income of the church. in later times, the lord's chosen parson was formally appointed by the bishop. by the s, many lords had given their advowsons to abbeys. this procedure used twelve recognitors selected by the sheriff. as before, the land of any person who had been outlawed or convicted of a felony escheated to his lord. his personal property, goods, and chattels became the king's. if he was executed, his heirs received nothing because they were of the same blood as the felon, which was corrupt: "corruption of the blood". the loss of civil rights and capacities after a sentence of death for felony or treason, which resulted in forfeiture of property and corruption of the blood, was called "attainder". there were two courts of the sheriff: the shire court for civil and criminal matters and the sheriff's tourn for petty crime only. the shire and borough courts heard cases of felonies, accusations against freemen, tort, and debts. the knights made the county courts work as legal and administrative agencies of the crown. the manor court heard cases arising out of the unfree tenures of the lord's vassals. it also heard distraint, also called "distress", issues. distraint was a landlord's method of forcing a tenant to perform the services of his fief. to distrain by the fief, a lord first obtained a judgment of his court. otherwise, he distrained only by goods and chattels without judgment of his court. a distraint was merely a security to secure a person's services, if he agreed he owed them, or his attendance in court, if he did not agree that he owed them. law and custom restricted the type of goods and chattels distrainable, and the time and manner of distraint. for instance, neither clothes, household utensils, nor a riding horse was distrainable. the lord could not use the chattels taken while they were in his custody. if cattle in custody were not accessible to the tenant, the lord had to feed them at his expense. the lord, if he were not the king, could not sell the chattel. this court also determined inheritance and dower issues. the court of the vill enforced the village ordinances. the hundred court met twice a month and dealt with the petty crimes of lowly men in the neighborhood of a few vills. franchise courts had jurisdiction given by special royal grant, such as the courts of the chancellors of oxford and cambridge universities. the peace of the sheriff still exists for his county. the king's peace may still be specially given, but it will cease upon the death of the king. law required every good and lawful man to be bound to follow the hue and cry when it was raised against an offender who was fleeing. the village reeve was expected to lead the chase to the boundary of the next jurisdiction, which would then take the responsibility to catch the man. before henry's reign, the church, with the pope's backing, had become more powerful and asserted more authority. henry tried to return to the concept of the king being appointed by god and as the head of the church as well as of the state, as in henry i's time, and to include the church in his reform of the legal system, which would make the spiritual jurisdiction and temporal jurisdiction conform to a common justice. toward this end, he published the constitutions of clarendon. but the archbishop of canterbury, thomas becket, refused to agree to them, although as chancellor he had seen the beneficial effects on the kingdom of henry's legal measures. the disagreement came to a head in henry's attempt to establish the principle of "one law to all" by having church clerics punished by the civil courts as before, instead of having "benefit of clergy" to be tried and punished only in ecclesiastical courts, even for secular crimes. clerics composed about one-sixth the population. the church courts had characteristically punished with spiritual penalties of a fine or a penance, and at most defrocking. it could not impose a death penalty, even for murder. when archbishop becket was murdered and became a martyr, "benefit of clergy" became a standard right, except for offenses in the king's forests. appeals could be made to the pope without the king's permission. the king could take a criminal cleric's chattels, but not his life. however, though theoretically bishops were elected by the body of bishops with the approval of the king, as a practical matter, the king chose the bishops and the abbots. it was a constant matter of dispute, in which the pope would sometimes involve himself. selection of archbishops was also a frequent matter of contention between king and pope. the church copied the assize procedure developed by the royal court to detect ecclesiastical offenses though it retained trial by compurgation. bishops could request the chancery to imprison an offender who had remained excommunicant for forty days, until he made amends. chancery complied as a matter of course. this went on for six centuries. the delineations of jurisdiction among these courts were confused and there was much competing and overlapping of jurisdictions. however, the court could appoint arbitrators or suggest to the parties to compromise to avoid the harshness of a decisive judgment which might drive the losing party to violent self-help. the office of coroner was established about to supplement the judicial investigations of crimes with local officers prior to the arrival of the itinerant justices. four knights who were residents of the county and possessed sufficient land were elected by the county court for life. sometimes they had county and royal connections instead. they received no pay. they determined if sudden deaths were accidental or due to murder and the cause of death of prisoners. they also held inquests on other crime such as bodily injury, rape, and prison break. they attached [arrested] the accused and evaluated and guarded his chattels until after the trial. if the accused was found guilty, his possessions went to the king. the coroner sat with the sheriff at every county court and went with him on his turns. this office and the forbidding of sheriffs to act as justices in their own counties reduced the power of the sheriffs. the responsibility of receiving the oath of the peace is changed from the sheriff to knights, the duty of the sheriffs being only to receive and keep the criminals taken by these knights until the justices came to try them. also, at this time, the constitution of the grand jury of the county was defined. first, four knights were to be chosen in the county court. these were to select on oath two knights from each hundred. these two, also on oath, are to add by co-optation ten more for the jury of the hundred. in london, if one of two witnesses for the defense died while an action was pending, the survivor, after offering his oath, could proceed to the grave of the dead witness, and there offer oath as to what the dead man would have sworn if he had been alive. if a foreigner was bound to make oath for debt or any misdeed, he could make it with six others, his own oath being the seventh; but if could not find six supporters, he alone could make the oath and take it in the six nearest churches. in london, the method of capital punishment was being confined to hanging, instead of also being in the form of beheading, burning, drowning, stoning, or hurling from a cliff. in cases of drowning, the offender was first sewn up in a sack with a snake, a dog, an ape, and a cock. chief justiciar ranulph glanvill wrote a treatise on the writs which could be brought in the royal court and the way they could be used. it was a practical manual of procedure and of the law administered in the royal court. there are personal actions such as "debt" for specific chattel or specific sum of money. the action for debt splits into two actions. the "detinue" action is for wrongful detention of personal property which originally was rightfully acquired as by loan, rent, or left for safe-keeping and its award is for the specific chattel detained or its value. the action of "replevin" is available to the tenant to recover personal property which had been wrongly distrained, usually cattle; the goods are "repledged" pending action. also, but rarely used, are "covenant" to protect termors for leases of land for terms of years, and "trespass": a semi-criminal action brought by a private party for an offense punishable by death (or in the s by mutilation) such as murder, rape, robbery, or mayhem, that is done with force of arms and against the peace of the king. the use of trespass grew as private actions for felony were supplanted by public indictment. it occasioned outlawry in default of appearance. about , outlawry was not used for crimes falling short of felony. these personal actions were initiated in common law courts by their respective writs. these are some of the cases of novel disseisin brought to the king's court: woodbridge v. bardolf ( , king's court): ralf of woodbridge seeks before the justices his free tenement in hebston by the assize of novel disseisin against hugh bardolf. against which assize hugh said that he had that seisin by judgment of his court for the default of the same ralf. and the court has recorded the summons and distraints reasonably made on the same ralf. and ralf himself has acknowledged the summons and distraints and said that he ought not hold anything from him in that land; rather, it is of another's fee. and because neither he nor anyone for him has complained to the justices that hugh unjustly drew him into a plea concerning a tenement which ralf himself held of the fee of another lord, it is considered that hugh hold in peace. and let ralf plead by writ of right if he want and be in mercy for his false claim. turroc v. fitz walter ( , king's court): the assize came to recognize if clement son of walter unjustly and without judgment disseised matilda of turroc of her free tenement within the assize. clement comes and says that he disseised her by judgment of his court. the court is present and records that she occupied more of her lord's land than she had in dower by the sheriff and by order of the lord king, so that she was summoned and distrained to come in to court, and she so responded that she remained in mercy of s. by judgment, so that for that amercement and for other complaints she made fine with her lord for / mark and put her land in pledge in his court and did not want to render the / mark. and therefore by judgment of his court he seised it. matilda denies all word for word. and the same clement only produces two men from his court; and it is considered that it was no court. judgment: let matilda have her seisin and let clement be in mercy for disseisin. fitz hereward v. prior of lecton ( , king's court): the assize came to recognize if the prior of lecton unjustly and without judgment disseised reginald son of hereward and essolda his wife of his free tenement in clapston after the first coronation of the lord king. the prior says that the assize ought not be taken thereof, because he seised that land by judgment of his court for default of his service and his rent, whereof he has his court present, which asserts the same thing. it is considered that the prior replevy [give back] to them their land and give them a day in his court concerning the arrears of rents and services. and let him treat them justly by judgment of his court. stanfeld v. brewes ( , king's court): the assize comes to recognize if simon of brewes and luke cleric and peter of brewes unjustly and without a judgment disseised odo of stanfeld and juliana his wife of her free tenement in michehey within the assize. simon says that the assize ought not be taken thereof, because he took that land into his hand by judgment of his court -- which he produced and which attests to this -- for default of his service. and it was testified that odo holds that land from the same simon. simon was ordered to replevy that land to odo as well as the chattels and to treat him rightfully in his court. fitz william v. amice et al. ( , king's court): the assize comes to recognize if amice who was the wife of richard earl of clare and hugh of ceriton, john of cornherd, william of wattevill, alexander son of gilbert, alexander son of matthew, bartholomew son of alexander, robert of cornherd, and geoffrey son of leveric unjustly and without judgment disseised richard son of william of sudbury of his free tenement in sudbury after the feast of st michael next before the coronation of the lord king. the countess says that, when she was separated by papal order from the earl of clare her husband by reason of consanguinity, to which husband the vill of sudbury had been given with her as marriage portion, she came to sudbury and convoked her court and made the same richard to be summoned to come to show by what warrant he held her land. he willingly entered into the plea and vouched the earl of clare her former husband to warrant and at the day given him to have [his warrantor] he did not have him. and thus by consideration of her court she seised her land and holds it. which court she produced and which attests this. richard comes and denies that he was ever summoned or came into her court by summons or vouched to warranty or so lost seisin by consideration of the court of the countess. and this he offers [to prove]. it is considered that he defend himself -handed that he did not willingly enter into the plea and vouch to warranty. let him wage his law [prove by the -handed oath, thus, by compurgation]. pledges of the law: hugh son of hugh, wido of sudbury. day is given them at the quindene of st. john. this is the suit of richard of sudbury: [there follow the names, but only of men] against the countess amice who was the countess of clare, concerning whom he had complained concerning a novel disseisin of his free tenement in sudbury. she said that by judgment of her court for default of warranty which he had vouched did she make the [dis]seisin and thereof did she produce suit. and he denied against her and against the suit, and law was adjudged. and he comes with his law and makes it with the abovesaid suit. therefore it is considered that he recover thereof his seisin; let the countess be in mercy for unjust disseisin and also her men, of whom the same richard has complained. and let the same countess return to him the damages done thereof by a jury of law-worthy men of the vicinity. the names of the men of the countess are in the writ. a sample of crown pleas in several hundreds or wapentakes [danish name for a hundred] from to are: . -denise, who was wife to anthony, appeals nicholas kam of the death of anthony, her husband, for that he wickedly slew her husband; and this she offers to prove against him under award of the court. and nicholas defends all of it. it is considered that denise's appeal is null, for in it she does not say that she saw the deed. the jurors being asked, say that they suspect him of it; the whole county likewise suspects him. let him purge himself by water [ordeal] under the assize. he has waged his law. . -william de ros appeals ailward bere, roger bald, robert merchant, and nicholas parmenter, for that they came to his house and wickedly in the king's peace took away from him a certain villein of his whom he kept in chains because he wished to run away, and led him off, and in robbery carried away his wife's coffer with one mark of silver and other chattels; and this he offers to prove by his son, robert de ros, who saw it. and ailward and the others have come and defended the felony, robbery, and breach of the king's peace, and say that (as the custom is in cornwall) roger of prideaux, by the sheriff's orders, caused twelve men to come together and make oath about the said villein, whether he was the king's villein or william's and it was found that he was the king's villein, so the said roger the serjeant demanded that [william] should surrender him, and he -refused, so [roger] sent to the sheriff, who then sent to deliver [the villein], who, however, had escaped and was not - - to be found, and william makes this appeal because he wishes to keep the chattels of thomas [the villein], to wit, two oxen, one cow, one mare, two pigs, nine sheep, eleven goats. - - and that this is so the jurors testify. judgment: william and robert in mercy for the false claim. william's amercement, a half-mark. robert's amercement, a half-mark. pledge for the mark, warin, robert's son. let the king have his chattels from william. pledge for the chattels, richard, hervey's son. . -serlo of ennis-caven appeals osbert of dimiliock and jordan, walter's son, for that they in the king's peace wickedly assaulted, beat and seriously wounded him, so that by reason of the beating three bones were extracted from his head; and this he offers to prove against him under the court's award as a man maimed by that mayhem. and it is testified by the coroners that the wounds when fresh were shown in the county [court], and that [the bones were broken] as aforesaid. and osbert and jordan come and defend word by word. it is considered that osbert do purge himself by ordeal of iron on account of the appeal, for serlo betook himself against osbert in the first instance. and let jordan be in custody until it be known how osbert shall fare. and the other persons who are appealed as accessories are to be under pledge until [osbert's fate] be known. . -the jurors say that they suspect william fisman of the death of agnes of chilleu, for the day before he had threatened her body and goods. and the four neighboring townships being sworn, suspect him of it. it is considered that he purge himself by water under the assize. . -william burnell and luke of the well are suspected of the burglary at the house of richard palmer by the jurors of the hundred, and by the four neighboring townships, which are sworn. let them purge themselves by water under the assize. . -malot crawe appeals robert, godfrey's son, of rape. he comes and defends. it is testified that he thus raped her and that she was seen bleeding. by leave of the justices they made concord on the terms of his espousing her. . -walter wifin was burgled, and of his chattels taken from his house in the burglary certain boots were found in the house of lefchild of ranam, and the said walter pursues - - those boots as his. and lefchild said that he bought them in bodmin market for / pence, but he knows not from whom. and besides walter says that eleven ells of linen cloth, part of the stolen goods, were sold in lefchild's house, and all the other proceeds of the burglary, and that lefchild was the receiver of the burglars, namely, robert of hideford -and alan the foresters, whom he [walter] had appealed of the -crime. and lefchild defends. the jurors on being asked, say that they suspect lefchild of the said receipt. so let him purge himself by water under the assize. . -eadmer of penwithen appeals martin, robert and thomas of penwithen, for that robert wounded him in the head so that twenty-eight pieces of bone were extracted, and meanwhile - - martin and thomas held him; and this he offers to deraign against the said robert as a man thereby maimed, under the court's award. and robert comes and defends all of it word - - by word. it is considered that he purge himself by ordeal of iron. let the others be in custody until it be known how robert shall fare. afterwards eadmer came and withdrew himself, and submitted to an amercement of one mark.pledges, reinfrid, gill's son, and philip his brother. let the other appellees go quit. . -reginald le teinus accused of the receipt and fellowship of robert the outlaw comes and defends. the jurors say that they suspect him, and the four neighboring townships say - - that they suspect him of it. so let him purge himself by water under the assize. and there must be inquiry as to richard revel, who was sheriff when the said robert escaped - - from his custody. . osbert of reterth appeals odo hay, for that he assaulted him as he was returning from bodmin market, and in the king's peace and wickedly struck him on the hand with a stick, and afterwards struck him on the arm with his sword -so that he is maimed; and this he offers to prove as a maimed man. and odo defends it all. and that [osbert] is maimed is testified by knights sent to see him. judgment: let [odo] purge himself by ordeal of iron because of this appeal. . wulward of wadebridge was burgled. and odo hay, lawrence smith, osbert mediciner, and benet his son, william miller, robert of frokemere, and maud his sister, are suspected of the burglary by the jurors of the hundred and by the four nearest townships, which are sworn. let the males purge themselves by water under the assize, and maud by ordeal of - - iron. roger morand fled for that burglary, and he was living in bodmin, [which town is] therefore in mercy. . robert, godfrey's son, appeals philip, william's son, for that he came on the land of [robert's] lord richard fortescue, and wickedly and in the king's peace and in robbery took eight oxen and a mantle, cape, and sword, and carried them off; and this he offers to prove against him by his body under award of the court. and philip comes and defends all of it word by word. it is considered that the appeal is null, for the oxen were not robert's, but - - richard's. the jurors being asked, say that [philip] did no robbery to [richard]. so richard fortescue is in mercy for a false appeal, and let philip be quit. . peter burel appeals anketil of wingely, for that he wickedly in the king's peace assaulted him in the field where he was pasturing his oxen, and beat him, and gave him - - four wounds in the head, and in robbery took from him an ax and a sword; and this he offers to prove against him; but he shows no wound. and anketil defends. and the county records - - that [peter] first appealed roger of tregadec of the same robbery and of the same wounds. therefore it is considered that the appeal is null, and let peter be in mercy for a false appeal. his amercement, a half-mark; pledge for it, ralph giffard. . the jurors are in mercy for a silly presentment, for they presented an appeal which was made in the hundred [court] and which was not presented in the county [court]. . lucy of morwinstow appeals robert de scaccis and roland -of kellio and peter of lancarf of robbing her of twenty shillings and eight pence, and of a cloak, price a half-mark. and it is testified by the jurors that they did not rob her, and that she is a hireling, and that a man lay with her in a garden, and the boys hooted her, so that she left her cloak, and the boys took it and pawned it for two gallons of wine. it is considered that robert do give her three pence in respect of the wine and do go quit. and roland and peter neither come nor essoin [present an excuse for nonappearance] themselves. and their pledges were nicholas brother of alfred of bodmin and herbert reeve of bodmin, who are therefore in mercy. . osbert church accused of the death of roland, son of reginald of kennel, on the appeal of the said reginald, was detained in gaol and defends word by word. and reginald - - offers proof by the body of a certain freeman, arkald, who has his [reginald's] daughter to wife, who is to prove in his stead, since he has passed the age of sixty. osbert church defends all of it. the knights of the hundred of penwith say that they suspect him of the said death. the - - knights of kerrier [hundred] say the same. the knights of penwith [hundred] say the same. the knights of pyder [hundred] say the same. judgment: let him purge himself by water, and reginald is in mercy, for he does not allege sight and hearing, and because he has withdrawn himself, and put another in his place, who neither saw nor heard and yet - - offered to prove it, and so let both reginald and arkald be in mercy. osbert is purged by the water. osbert's pledges: henry little, henry of penant, ossulf black, roger of trevithow, john of glin, ralph of trelew. . roger of wick [was] appealed of the death of brictmer by the appeal of hawise, brictmer's wife, and was captured in flight, as say john of winielton and ralph of mertherin, but the flight is not testified by the hundred. kerier [hundred] says the same. penwith [hundred] says the same. so is considered that he purge himself by water. he is purged. roger's pledges: ralph of trelew, ogier of kurnick, richard, simon's son, alfred malvoisin, everwin of lande, john of kewerion, warin of tiwardeni, baldwin tirel, roger of - - trevithow, john of glin, william of dunham, thomas, osbert's - - son. . richard, william's son, appealed luke, richard's son, and william, the servant of alan clerk, of robbery and of binding him. the appellees have not come nor essoined themselves. the county together with the wapentake says that they were appealed, not of the king's peace, but of the sheriff's peace, so that the suit was and is in the county [court], and therefore they were not attached to come before the justices. therefore the jurors are in mercy for presenting what they ought not to have presented. . william, hawise's son, appeals richard, son of robert of somercotes, for that he came in the king's peace to his house at somercotes, and broke his house and robbed him of.[an abrasion] shillings, and a cape and surcoat, and twenty-five fowls, and twenty shillings worth of corn [grain], and wounded him in the head with the wound that he shows; and this he offers to prove against him as the court shall consider etc. and richard comes and defends the breach of the king's peace and the housebreaking, wounding and -robbery, but confesses that he came to a certain house, which william asserts to be his [william's], as to his -[richard's] own proper house, which escheated into his hand on the death of roger his villein, and there he took certain chattels which were his villein's and which on his villein's - - death were his [richard's] own: to wit, five thraves of oats, thirteen sheaves of barley, and twenty-five fowls; and he offers the king twenty shillings for an inquest [to find] whether this be so or no. and william says that richard says this unjustly, for the said roger never had that house nor dwelt therein, nor were those chattels roger's, but he [william] held that house as his own, and the chattels there seized were his. the jurors being questioned whether roger did thus hold the house of richard in villeinage, say, yes. also the coroners and the whole county testify that [william] never showed any wound until now; and the wound that he now shows is of recent date. therefore it is considered that the appeal is null, and let richard go quit, and william be in mercy for his false claim. pledges for the amercement, gilbert, robert's son, and richard, haldeng's son. . astin of wispington appeals simon of edlington, for that he wickedly and in the king's peace assaulted him in his meadows and put out his eye, so that he is maimed of that eye; and this he offers to prove etc. simon comes and defends all of it word by word. and the coroners and the county testify that hitherto the appeal has been duly sued, at first by [astin's] wife, and then by [astin himself]. judgment: let law be made, and let it be in the election of the appellee whether he or astin shall carry the iron. he has chosen that astin shall carry it. astin has waged the law. simon's pledges, william of land and his frankpledge and ralph of stures. astin's pledges, roger thorpe, osgot of wispington, and william, joel's brother. afterwards came [the appellor and appellee] and both put themselves in mercy. . gilbert of willingham appeals gilbert, geoffrey's son, for that he in the king's peace and wickedly set fire to his house and burned it, so that after the setting fire [the appellor] went forth and raised hue and cry so that his neighbors and the township of willingham came thither, and he showed them [the appellee] in flight and therefore they pursued him with the cry; and this he offers etc. and the appellee defends all of it word by word etc. and the - - neighbors and the township of willingham being questioned, say that they never saw him in flight, and that [the appellor] never showed him to them. likewise the jurors say that in their belief he appeals him out of spite rather than for just cause. therefore it is considered that the appeal is null, and the appellee is in mercy for a half-mark [ s.]. pledge for the amercement, robert walo. . william burel appeals walter morcock, for that he in the king's peace so struck and beat margery, [william's] wife, that he killed the child in her womb, and besides this beat her and drew blood. and william of manby, the beadle, testifies that he saw the wound while fresh and the blood in the wapentake [court]. and the serjeant of the riding and the coroners and the twelve knights testify that they never saw wound nor blood. and so it is considered that the appeal is null, for one part of the appeal being quashed, it is quashed altogether, and william burel is in mercy. let him be in custody. and william manby is in mercy for false testimony. pledges for william's amercement, richard of bilsby, elias of welton. . william marshall fled for the death of sigerid, denis' mother, whereof denis appeals him; and he was in the prior of sixhills' frankpledge of sixhills, which is in mercy, and his chattels were two cows and one bullock. afterwards came the prior of sixhills and undertook to have william to right before the justices. and he came, and then denis, sigerid's son, came and appealed him of his mother's death. and it was testified that [denis] had an elder brother, and that nine years are past since [sigerid] died, and that she lived almost a year after she was wounded, and that denis never appealed [william] before now. therefore it is - - considered that the appeal is null and that denis be in mercy. pledge for the amercement, his father, ralph, son of denis. . alice, wife of geoffrey of carlby, appealed william, roger's son, and william his son and roger his son of the death of william her brother. and alice does not prosecute.therefore let her be in mercy and let her be arrested. to -judgment against the sheriff who did not imprison the said persons who were attached, whereas they are appealed of homicide, and to judgment also as to a writ which he ought to produce. . hawise, thurstan's daughter, appeals walter of croxby -and william miller of the death of her father and of a wound -given to herself. and she has a husband, robert franchenay, - - who will not stir in the matter. therefore it is considered that the appeal is null, for a woman has no appeal against anyone save for the death of her husband or for rape. and - - let robert be in mercy on his wife's account, for a half-mark [ s.], and let the appellees be quit. pledge for robert's amercement, richard dean of mareham, who has lay property. wapentake of aswardhurn. . juliana of creeton appeals adam of merle of battery and robbery. and adam does not come, but essoins himself as being in the king's service beyond seas. and for that it is not allowed to anyone appealed of the king's peace to leave the land without a warrant before he has been before justices learned in the law, his pledges are in mercy: to wit, segar of arceles, alan of renington, and robert of searby. adam himself is excused from the plea by the essoin that he has cast. . thomas, leofwin's son, appeals alan harvester, for that he in the king's peace assaulted him as he went on the highway, and with his force carried him into alan's house, and struck him on the arm so that he broke a small bone of his arm, whereby he is maimed, and robbed him of his cape and his knife, and held him while eimma, [alan's] wife, cut off one of his testicles and ralph pilate the other, and when he was thus dismembered and ill-treated, the said alan with his force carried him back into the road, whereupon as soon as might be he raised the cry, and the neighbors came to the cry, and saw him thus ill-treated, and then at once he sent to the king's serjeant, who came and found, so [thomas] says, the robbed things in alan's house and then as soon as might be [thomas] went to the wapentake [court] and - - to the county [court] and showed all this. so inquiry is made of the king's sergeant, who testifies that he came to alan's house and there found the knife and the testicles in a little cup, but found not the cape. also the whole county testifies that [thomas] never before now appealed alan of breaking a bone. and so it is considered that the appeal is null, and that [thomas] be in mercy, and that the other appellees be quit. thomas also appeals emma, alan's wife, for that she in the peace aforesaid after he was placed in her lord's house cut off one of his testicles. he also appeals ralph pilate, for that he cut off the other of his - - testicles. . the twelve jurors presented in their verdict that austin, rumfar's son, appealed ralph gille of the death of his brother, so that [ralph] fled, and that william, rumfar's son, appealed benet carter of the same death, and ranulf, ralph's son, appealed hugh of hyckham of the same death and baldwin of elsham and ralph hoth and colegrim as accessories. and the coroners by their rolls testify this also. but the county records otherwise, namely, that the said ralph gille, benet, hugh, baldwin, ralph [hoth] and gocegrim were all appealed by ranulf, ralph's son, and by no one else, so that four of them, to wit, ralph gille, hugh, benet and colegrim, were outlawed at the suit of the said ranulf, and that the said persons were not appealed by anyone other than the said ranulf. and for that the county could not [be heard to] contradict the coroners and the said jurors who have said their say upon oath, it is considered etc. thereupon the county forestalled the judgment and before judgment was pronounced made fine with pounds [ , s.] [to be collected throughout the county], franchises excepted. . hereward, william's son, appeals walter, hugh's son, for that he in the king's peace assaulted him and wounded him in -the arm with an iron fork and gave him another wound in the head; and this he offers to prove by his body as the court shall consider. and walter defends all of it by his body. and it is testified by the coroners and by the whole county that hereward showed his wounds at the proper time and has made sufficient suit. therefore it is considered that there be battle. walter's pledges, peter of gosberton church, and richard hereward's son. hereward's pledges, william his father and the prior of pinchbeck. let them come armed in the quindene of st. swithin at leicester. . william gering appeals william cook of imprisonment, to wit, that he with his force in the king's peace and wickedly, while [gering] was in the service of his lord guy at the forge, took him and led him to freiston to the house of william longchamp, and there kept him in prison so that his lord could not get him replevied; and this he offers to prove as the court shall consider. and william cook comes and defends the felony and imprisonment, but confesses that whereas he had sent his lord's servants to seize the beasts of the said guy on account of a certain amercement which [guy] had incurred in the court of [cook's] lord [longchamp], and which though often summoned he had refused to pay, [gering] came and rescued the beasts that had been seized and wounded a servant of [cook's] lord, who had been sent to seize them, whereupon [cook] arrested [gering] until -he should find pledges to stand to right touching both the wounding and the rescue, and when [gering's] lord [guy] came -for him, [cook] offered to let him be replevied, but this [guy] refused, and afterwards he repeated the offer before the king's serjeant, but even then it was refused, and then [cook] let [gering] go without taking security. and guy says that he puts himself upon the wapentake, whether the imprisonment took place in manner aforesaid, and whether he [guy] at once showed the matter to the king's serjeant, or no. and william cook does the same. and the wapentake says that the alleged [imprisonment] took place in lent, and guy did not show the matter to the wapentake until a fortnight before st. botulph's day. and the county together with the coroners says that they never heard the suit in their court. therefore it is considered that the appeal is null, and guy is in mercy. and let william and those who are appealed as accessories go quit. . the jurors say that andrew, sureman's son, appealed peter, leofwin's son, thomas squire and william oildene of robbery. and he does not prosecute. so he and stephen despine and baldwin long are in mercy, and the appellees go without day. afterwards comes andrew and says that [the appellees] imprisoned him by the order of william malesoures in the said william's house, so that he sent to the sheriff that the sheriff might deliver him, whereupon the sheriff sent his serjeant and others thither, who on coming there found him imprisoned and delivered him and he produces witnesses, to wit, nicholas portehors and hugh, thurkill's son, who testify that they found him imprisoned, and he vouches the sheriff to warrant this. and the sheriff, on being questioned, says that in truth he sent thither four lawful men with the serjeant on a complaint made by nicholas portehors on andrew's behalf. and those who were sent thither by the sheriff testify that they found him at liberty and disporting himself in william's house. therefore it is considered that the appeal is null [and andrew is in mercy] for his false complaint and nicholas portehors and hugh, thurkill's son, are in mercy for false testimony. andrew and hugh are to be in custody until they have found pledges [for their amercement]. . the jurors say that geoffrey cardun has levied new customs other than he ought and other than have been usual, to wit, in taking from every cart crossing his land at winwick with eels, one stick of eels, and from a cart with greenfish, one greenfish, and from a cart with salmon, half a salmon, and from a cart with herrings, five herrings, whereas he ought to take no custom for anything save for salt crossing his land, to wit, for a cartload, one bole of salt, and in that case the salter ought to have a loaf in return for the salt, and also if the salter's cart breaks down, the salter's horses ought to have pasture on geoffrey's land without challenge while he repairs his cart. and geoffrey comes and confesses that he takes the said customs, and ought to take them, for he and his ancestors have taken them from the conquest of england, and he puts himself on the grand assize of our lord the king, and craves that a recognition be made whether he ought to take those customs or no. and afterwards he offers the king twenty shillings that this action may be put before sir geoffrey fitzpeter [the justiciar]. pledge for the twenty shillings, richard of hinton. . the jurors say that hugh, son of walter priest, was outlawed for the death of roger rombald at the suit of robert rombald, and afterwards returned under the [protection of the] king's writ, and afterwards was outlawed for the same death on the appeal of geoffrey, thurstan's son. the county therefore is asked by what warrant they outlawed the same man twice for the same death, and says that of a truth in king richard's time the said hugh was - - outlawed at the suit of one lucy, sister of the said roger, so that for a long time afterwards he hid himself; and at length he came into the county [court] and produced letters of sir geoffrey fitzpeter in the form following: "g. fitzpeter etc. to the sheriff of northamptonshire, greeting, know thou that the king hath pardoned to hugh, son of the priest of grafton, his flight and the outlawry adjudged to him for the death of a certain slain man, and hath signified to us by his letters that we be aiding to the said hugh in reestablishing the peace between him and the kinsfolk of the slain; wherefore we command thee that thou be aiding to the said hugh in making the peace aforesaid, and do us to wit by thy letters under seal what thou hast done in this matter, since we are bound to signify the same to the king. in witness etc. by the king's writ from beyond seas." and the said letters being read in full county [court] the county told the said hugh that he must find pledges that he would be in the king's peace, and he went away to find pledges, and afterwards did not appear. but the kinsfolk of the slain, having heard that hugh had returned after his outlawry, came to the next county [court] and robert rombald produced geoffrey, thurstan's son, who said that if he saw the said hugh he would sue against him the death of the said roger, who was [his kinsman]. and the county showed him how hugh had brought the justiciar's letters pardoning him the flight and outlawry, and that he was to find pledges to stand to the king's peace, but had not returned. whereupon the king's serjeant was ordered to seek hugh and bring him to a later county [court]. and at a later county [court] geoffrey offered himself against hugh, and hugh did not appear; whereupon the king's serjeant being questioned said that he had not found him, and the county advised [geoffrey] to come to another county [court], because if in the meantime hugh could be found, he would be brought to the county [court]. then at the third county [court] the said geoffrey offered himself, and it was testified by the serjeant that hugh had not yet been found, wherefore the county said that as hugh would not appear to the king's peace, he must bear the wolf's head as he had done before. to judgment against the coroners and the twelve jurors. . robert of herthale, arrested for having in self-defense slain roger, swein's son, who had slain five men in a fit of madness, is committed to the sheriff that he may be in custody as before, for the king must be consulted about this matter. the chattels of him who killed the five men were worth two shillings, for which richard [the sheriff must account]. . sibil, engelard's daughter, appeals ralph of sandford, for that he in the king's peace and wickedly and in breach of the peace given to her in the county [court] by the sheriff, came to the house of her lord [or husband] and broke her chests and carried off the chattels, and so treated her that he slew the child that was living in her womb. afterwards she came and said that they had made a compromise and she withdrew herself, for they have agreed that ralph shall satisfy her for the loss of the chattels upon the view and by the appraisement of lawful men; and ralph has assented to this. . william pipin slew william [or john] guldeneman and fled. he had no chattels. let him be exacted. and hugh fuller was taken for this death and put in gaol because the said john [or william] was slain in his house. and hugh gives to the king his chattels which were taken with him, that he may have an inquest [to find] whether he be guilty thereof or no. the jurors say that he is not guilty, and so let him go quit thereof. and william picot is in mercy for having sold hugh's chattels before he was convicted of the death, and for having sold them at an undervalue, for he sold them, as he says, for three shillings, and the jurors - - say that they were worth seventeen shillings, for which william picot and those who were his fellows ought to account. and william says that the chattels were sold by the advice of his fellows, and his fellows deny this. . robert white slew walter of hugeford and fled. the jurors say that he was outlawed for the death, and the county and the coroners say that he was not outlawed, because no one sued against him. and because the jurors cannot [be heard to] contradict the county and the coroners, therefore they are in mercy, and let robert be exacted. his chattels were [worth] fifteen shillings, for which r. of ambresleigh, the sheriff, must account. . elyas of lilleshall fled to church for the death of a woman slain at lilleshall. he had no chattels. he confessed the death and abjured the realm. alice crithecreche and eva of lilleshall and aldith and mabel, geoffrey and robert of lilleshall, and peter of hopton were taken for the death of the said woman slain at lilleshall. and alice, at once after the death, fled to the county of stafford with some of the chattels of the slain, so it is said, and was taken in that county and brought back into shropshire and there, as the king's serjeant and many knights and lawful men of the county testify, in their presence she said, that at night - - she heard a tumult in the house of the slain; whereupon she came to the door and looked in, and saw through the middle of the doorway four men in the house, and they came out and - - caught her, and threatened to kill her unless she would conceal them; and so they gave her the pelf [booty] that she had. and when she came before the [itinerant] justices she denied all this. therefore she has deserved death, but by way of dispensation [the sentence is mitigated, so] let her -eyes be torn out. the others are not suspected, therefore let them be under pledges. . william, john's son, appeals walter, son of ralph hose, for that when [william's] lord guy of shawbury and [william] had come from attending the pleas of our lord the king in the county court of shropshire, there came five men in the forest of haughmond and there in the king's peace and wickedly assaulted his lord guy, and so that [walter], who was the fourth among those five, wounded guy and was accessory with the others in force as aid so that guy his lord was killed, and after having wounded his lord he [walter] came to william and held him so that he could not aid his lord; and this he offers to deraign [determine by - - personal combat] against him as the court shall consider. and walter comes and defends all of it word by word as the court etc. it is considered that there be battle [combat] between them. the battle [combat] is waged. day is given them, at oxford on the morrow of the octave of all saints, and then let them come armed. and ralph [walter's father] gives the king a half-mark that he may have the custody of his son, [for which sum] the pledges are john of knighton and reiner of acton, and he is committed to the custody of ralph hose, reiner of acton, john of knighton, reginald of leigh, adam of mcuklestone, william of bromley, stephen of ackleton, eudo of mark. . robert, son of robert of ferrers, appeals ranulf of tattesworth, for that he came into robert's garden and wickedly and in the king's peace assaulted robert's man roger, and beat and wounded him so that his life was despaired of, and robbed him [roger?] of a cloak, a sword, a bow and arrows: and the said roger offers to prove this by his body as the court shall consider. and ranulf comes and defends the whole of it, word by word, and offers the king one mark of silver that he may have an inquest of lawful knights [to say] whether he be guilty thereof or no. also he says that roger has never until now appealed him of this, and prays that this be allowed in his favor. [ranulf's] offering is accepted. the jurors say that in truth there was some quarrel between robert's gardener, osmund, and some footboys, but ranulf was not there, and they do not suspect him of any robbery or any tort done to robert or to osmund. also the county records that the knights who on robert's complaint were sent to view osmund's wounds found him unwounded and found no one else complaining, and that robert in his plaint spoke of osmund his gardener and never of roger, and that roger never came to the county [court] to make this appeal. therefore it is considered that ranulf be quit, and robert and roger in mercy. pledge for ranulf's mark, philip of draycot. pledges for the amercement, henry of hungerhill, and richard meverell. pledge for roger, the said robert. . one l. is suspected by the jurors of being present when reinild of hemchurch was slain, and of having aided and counseled her death. and she defends. therefore let her purge herself by the ordeal of iron; but as she is ill, the ordeal is respited until her recovery. . andrew of burwarton is suspected by the jurors of the death of one hervey, for that he concealed himself because of that death. therefore let him purge himself by ordeal of water. . godith, formerly wife of walter palmer, appeals richard of stonall, for that he in the king's peace wickedly and by night with his force came to her house and bound her and her husband, and afterwards slew the said walter her husband; and this she offers to prove against him as wife of the slain as the court shall consider. and he defends all of it. and the jurors and the whole neighborhood suspect him of that death. and so it is considered that he purge himself by ordeal of iron for he has elected to bear the iron. . the jurors of oflow hundred say that the bailiffs of tamworth have unjustly taken toll from the knights of staffordshire, to wit, for their oxen and other beasts. and the men of lichfield complain that likewise they have taken toll from them, more especially in staffordshire. and the bailiffs deny that they take anything from the knights in staffordshire. and for that they cannot [be heard to] contradict the jurors, the bailiffs are in mercy. as to the men of lichfield, [the tamworth bailiffs] say that they ought to have, and in king henry's time had, toll of them, more especially of the merchants, as well in staffordshire as in warwickshire. and the burgesses of lichfield offer the king a half-mark for an inquest by the county. and the county records that in king henry's time the men of - - lichfield did not pay toll in staffordshire. therefore the bailiffs are in mercy. chapter the times - tenures in land were free or not free; the free tenures were ( ) military service, ( ) grand serjeanty, ( ) free socage, and ( ) frankalmoin. for military service, in general, every man knows his place, knows how many days he must fight and with what arms. but this institution is becoming unstable. sometimes a substantial payment called scutage is taken instead. as feudalism became less military and less rough, daughters were permitted to inherit fiefs. it became customary to divide the property of a deceased man without a son equally among his daughters. lords were receiving homage from all the daughters and thereby acquiring marriage rights over all of them. also, if a son predeceased his father but left a child, that child would succeed to the father's land in the same way that the deceased would have. the ill, the aged, women, and ecclesiastics could send a substitute to military service. there are certain reliefs, and wardship and marriage fees associated with military tenure. grand serjeanty was various and included carrying the banner of the king, or his lance, carrying his sword at his coronation, carrying his letters, summoning his barons, conveying his treasure from place to place, being his steward, marshal, chamberlain or constable. many serjeanties were connected with warfare, such as light horsemen, infantry, bowmen, captains of the national militia, leading the infantry of certain hundreds, military transport, carriage of armour on a horse, munitions of war such as lances, arrows or knives. a man could hold by serjeanty of a mesne lord, such as presiding over the lord's court, riding with the lord or on his errands, feeding his hounds, or supplying bows and arrows. tenure in free socage may involve a nominal service to a lord, such as the gift every year of a rose, a sparrowhawk, a pair of gloves, a pair of gilt spurs, or a pound of pepper, or of incense or of wax. tenure in socage may originate by a gift of land to a daughter or younger son, or to some dependant for past services, or a purchase with a gross sum. there were no wardship or marriage or other fees associated with a tenure in free socage. tenure in frankalmoin ["free alms" for the poor to relieve the king of this burden] was land held by ecclesiastics in right of their churches and of god. this service was spiritual, often for saying prayers for the deceased donor so that he could go from purgatory to heaven, and it was an indefinite service. in general, land could be alienated or subinfeudated without the lord's consent and thus come to be held in another tenure. land escheated [returned] to the lord if there were no heirs, or in case of felony after the king has possessed and taken the profits of the land for year and day. in case of treason, a tenant's lands were all forfeited to the king. the tenure of socage obligated the tenant to fixed agricultural services, for which a nominal payment called a "quit rent" could be substituted. socage did not entail rights of wardship or marriage. socage grew at the expense of the other tenures. the unfree tenure was villein tenure. villeins were tied to a piece of land and were bound to perform for their lord indefinite agricultural services and could be physically recovered in case they left the land. villeins were subject to a lord's court and were not protected by the king's court. the major types of freemen were: nobles, knights, ecclesiastics, jews, and women. the nobles were the earls and barons. they did not have noble blood, but were tenants in chief of certain land by the king's will. the king consulted them and they obeyed his summons and gave him counsel. they were entitled to be judged in cases of treason or felony, by their peers, that is, each other. lower in status are the knights. they were active in royal justice, making thedecisions in the most important cases. ecclesiatics were bishops; abbots; and monks, nuns, and friars, who had taken vows of poverty and obedience; and clergy. the difference between a monk and a friar was a cloistered life versus an active life. jews came to england after the conquest and were under the special protection of the king. all they had belonged to the king. a jew could lend money for interest, which was disallowed for christians. jews were subject to the courts of justice, but could also settle their disputes by their own hebrew law, they were expelled in . women could hold land, even by military tenure, own chattels typically beasts and coins], make a will, make a contract, and could sue and be sued. they could give evidence in court, but could not be jurors or judges. women who had husbands had to defer to them in certain property matters. nobles, doctors, and attorneys wore tunics to the ankle and an over-tunic almost as long, which was lined with fur and had long sleeves. a hood was attached to it. a man's hair was short and curled, with bangs on the forehead. the tunic of merchants and middle class men reached to the calf. the laborer wore a tunic that reached to the knee, cloth stockings, and shoes of heavy felt, cloth, or perhaps leather. ladies wore a full-length tunic with moderate fullness in the skirt, and a low belt, and tight sleeves. a lady's hair was concealed by a round hat tied on the top of her head. over her tunic, she wore a cloak. monks and nuns wore long black robes with hoods. baron landholders' semi-fortified stone manor houses were improved and extended. many had been licensed to be embattled or crenelated [wall indented at top with shooting spaces]. they were usually quadrangular around a central courtyard. the central and largest room was the hall, where people ate and slept. the hall had a hearth for fire in the center of the room if the hall was one story high. sometimes the lord had a room with a sleeping loft above it. if the hall was more than one story high, it had a fireplace at one end so that the smoke could go up and out the roof. other rooms each had a fireplace. there were small windows around the top story and on the inside of the courtyard. they were usually covered with oiled paper. windows of large houses were of opaque glass supplied by a glassmaking craft. the glass was thick, uneven, distorted, and greenish in color. the walls were plastered. the floor was wood with some carpets. roofs were timbered with horizontal beams. many roofs had tiles supplied by the tile craft, which baked the tiles in kilns or over an open fire. because of the hazard of fire, the kitchen was often a separate building, with a covered way connecting it to the hall. it had one or two open fires in fireplaces, and ovens. sometimes there was a separate room for a dairy. furniture included heavy wood armchairs for the lord and lady, stools, benches, trestle tables, chests, and cupboards. outside was an enclosed garden with cabbages, peas, beans, beetroots, onions, garlic, leeks, lettuce, watercress, hops, herbs, nut trees for oil, some flowers, and a fish pond and well. bees were kept for their honey. the barons now managed and developed their estates to be as productive as possible, often using the successful management techniques of church estates. they kept records of their fields, tenants, and services owed by each tenant, and duties of the manor officers, such as supervision of the ploughing and harrowing. annually, the manor's profit or loss for the year was calculated. most manors were self-supporting except that iron for tools and horseshoes and salt for curing usually had to be obtained elsewhere. wine, tar, canvas and millstones were imports from other countries and bought at fairs, as was fish, furs, spices, and silks. sheep were kept in such large numbers that they were susceptible to a new disease "scab". every great household was bound to give alms. manors averaged about ten miles distance between each other, the land in between being unused and called "wasteland". statutes after a period of civil war proscribing the retaking of land discouraged the enclosure of waste land. husbandry land held in villeinage was inherited according to the custom of its manor as administered in the lord's manorial court. (the royal courts had jurisdiction of land held in socage. i.e. free tenure.) the heir could be the oldest son, the youngest son, a son chosen by the father to succeed him, or divided among the sons. if there were no sons, one of the daughters inherited the land or it was divided among all the daughters. if there were no heirs, the land went back to the lord. land could not be sold or alienated so that the heir did not inherit, without the consent of the lord. manorial custom also determined the manner of descent of goods and chattels. a common custom for a villein was that his best beast go to his lord as heriot and his second best beast go to the parish priest as mortuary. then, after debts and burial expenses had been paid, a number of tools and utensils needed for husbandry and housekeeping went with the land to its heir. these were the "heirlooms", `loom" in old english meaning tool. this usually included, for a holding of more than acres, a coulter, a plowshare, a yoke, a cart, an axe, a cauldron, a pan, a dish, and a cask. finally, the remaining goods and chattels went one-third to the widow, one-third to his children except for the heir to the land, and one-third according to the deceased's last will and testament. a son might take his share before the death of his father in order to go out into the world and seek his fortune, for instance in the church or military, upon which event the father had to pay his lord a fine for his son permanently leaving the manor. many country boys became bound apprentices in nearby boroughs or farm laborers. others married heiresses of land. by the custom of "curtesy of the nation", he held this land for his lifetime if he had a child born of the marriage, even if his wife predeceased him. if a man remained on the family land, he had no right to marry. often, there were agreements over land holdings that were recorded in the manor books. for instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. an heir usually did not marry until after receiving his land. manorial custom determined whether a father's consent was necessary for a son or daughter to marry, the nature of any agreement ("trothplight") between the families as to lands and goods brought to the marriage, the amount of her marriage portion, and the son's endowment (her "dower") of lands and goods promised to the bride at the church door that would provide for her support after his death. if dower was not specified, it was understood to be one-third of all lands and tenements. at the next hallmote, if manorial custom required it, the son would pay a fine to his lord for entry onto the land and for license to marry. from , priests taught that betrothal and consummation constituted irrevocable marriage. some villeins bought out their servitude by paying a substitute to do his service or paying his lord a firm (from hence, the words farm and farmer) sum to hire an agricultural laborer in his place. this made it possible for a farm laborer to till one continuous piece of land instead of scattered strips. looms were now mounted with two bars. women did embroidery. the clothing of most people was made at home, even sandals. the village tanner and bootmaker supplied long pieces of soft leather for more protection than sandals. tanning mills replaced some hand labor. the professional hunter of wolves, lynx, or otters supplied head coverings. every village had a smith and possibly a carpenter for construction of ploughs and carts. the smith obtained coal from coal fields for heating the metal he worked. horse harnesses were homemade from hair and hemp. there were watermills and/or windmills for grinding grain, for malt, and/or for fulling cloth. the position of the sails of the windmills was changed by manual labor when the direction of the wind changed. most men wore a knife because of the prevalence of murder and robbery. it was an every day event for a murderer to flee to sanctuary in a church, which would then be surrounded by his pursuers while the coroner was summoned. usually, the fugitive would confess, pay compensation, and agree to leave the nation permanently. county courts were the center of decision-making regarding judicial, fiscal, military, and general administrative matters. the writs for the conservation of the peace, directing the taking of the oath, the pursuit of malefactors, and the observance of watch and ward, were proclaimed in full county court; attachments were made in obedience to them in the county court. the county offices were: sheriff, coroner, escheator, and constable or bailiff. there were sheriffs for counties. the sheriff was usually a substantial landholder and a knight who had been prominent in the local court. he usually had a castle in which he kept persons he arrested. he no longer bought his office and collected certain rents for himself, but was a salaried political appointee of the king. he employed a deputy or undersheriff, who was an attorney, and clerks. if there was civil commotion or contempt of royal authority, the sheriff of the county had power to raise a posse of armed men to restore order. the coroner watched the interests of the crown and had duties in sudden deaths, treasure trove, and shipwreck cases. there were about five coroners per county and they served for a number of years. they were chosen by the county court. the escheator was appointed annually by the treasurer to administer the crown's rights in feudal land, which until had been the responsibility of the sheriff. he was usually chosen from the local gentry. the constable and bailiff operated at the hundred and parish [the geographical area of a church's members] level to detect crime and keep the peace. they assisted sheriffs and justices of the peace, organized watches for criminals and vagrants at the village level, and raised the hue and cry along the highway and from village to village in pursuit of offenders who had committed felony or robbery. the constables also kept the royal castles; they recruited, fed, and commanded the castle garrison. county knights served sheriffs, coroners, escheators, and justices on special royal commissions of gaol-delivery. they sat in judgment in the county court at its monthly meetings, attended the two great annual assemblies when the lord, knights and freeholders of the county gathered to meet the itinerant justices who came escorted by the sheriff and weapon bearers. they served on the committees which reviewed the presentments of the hundreds and village, and carried the record of the county court to westminster when summoned there by the kings' justices. they served on the grand assize. as elected representatives of their fellow knights of the county, they assessed any taxes due from each hundred. election might be by nomination by the sheriff from a fixed list, by choice, or in rotation. they investigated and reported on local abuses and grievances. the king's justices and council often called on them to answer questions put to them on oath. in the villages, humbler freeholders and sokemen were elected to assess the village taxes. six villeins answered for the village's offenses before the royal itinerant justice. reading and writing in the english language was taught. the use of english ceased to be a mark of vulgarity. in the first governmental document was issued in english as well as in latin and french, and later latin started falling into disuse. boys of noblemen were taught reading, writing, latin, a musical instrument, athletics, riding, and gentlemanly conduct. girls were taught reading, writing, music, dancing, and perhaps household nursing and first aid, spinning, embroidery, and gardening. girls of high social position were also taught riding and hawking. grammar schools taught, in latin, grammar, dialectic (ascertaining word meaning by looking at its origin, its sound (e.g. soft or harsh), its power (e.g. robust and strong sound), its inflection, and its order; and avoiding obscurity and ambiguity in statements), and rhetoric [art of public speaking, oratory, and debate]. the teacher possessed the only complete copy of the latin text, and most of the school work was done orally. though books were few and precious, the students read several latin works. girls and boys of high social position usually had private teachers for grammar school, while boys of lower classes were sponsored at grammar schools such as those at oxford. discipline was maintained by the birch or rod. there was no examination for admission as an undergraduate to oxford, but a knowledge of latin with some skill in speaking latin was a necessary background. the students came from all backgrounds. some had their expenses paid by their parents, while others had the patronage of a churchman, a religious house, or a wealthy layman. they studied the "liberal arts", which derived its name from "liber" or free, because they were for the free men of rome rather than for the economic purposes of those who had to work. the works of greek authors such as aristotle were now available; the european monk thomas aquinas had edited aristotle's works to reconcile them to church doctrine. he opined that man's intellectual use of reason did not conflict with the religious belief that revelation came only from god, because reason was given to man by god. he shared aristotle's belief that the earth was a sphere, and that the celestial bodies moved around it in perfect circles. latin learning had already been absorbed without detriment to the church. a student at oxford would become a master after graduating from a seven year course of study of the seven liberal arts: [grammar, rhetoric (the source of law), aristotelian logic (which differentiates the true from the false), arithmetic, including fractions and ratios, (the foundation of order), geometry, including methods of finding the length of lines, the area of surfaces, and the volume of solids, (the science of measurement), astronomy (the most noble of the sciences because it is connected with divinity and theology), music and also aristotle's philosophy of physics, metaphysics, and ethics; and then lecturing and leading disputations for two years. he also had to write a thesis on some chosen subject and defend it against the faculty. a master's degree gave one the right to teach. further study for four years led to a doctorate in one of the professions: theology and canon or civil law. there were about , students in oxford. they drank, played dice, quarreled a lot and begged at street corners. there were mob fights between students from the north and students from the south and between students and townsmen. but when the mayor of oxford hanged two students accused of being involved in the killing of a townswoman, many masters and students left for cambridge. in , a charter created the office of chancellor of the university at oxford. he was responsible for law and order and, through his court, could fine, imprison, and excommunicate offenders and expel undesirables such as prostitutes from the town. he had authority over all crimes involving scholars, except murder and mayhem. the chancellor summoned and presided over meetings of the masters and came to be elected by indirect vote by the masters who had schools, usually no more than a room or hall with a central hearth which was hired for lectures. students paid for meals there. corners of the room were often partitioned off for private study. at night, some students slept on the straw on the floor. six hours of sleep were considered sufficient. in , the king ordered that every student must have his name on the roll of a master and the masters had to keep a list of those attending his lectures. in the friars established their chief school at oxford. they were bound by oaths of poverty, obedience, and chastity, but were not confined within the walls of a monastery. they walked barefoot from place to lace preaching. they begged for their food and lodgings. they replaced monks, who had become self-indulgent, as the most vital spiritual force among the people. the first college was founded in by walter de merton, former chancellor to the king, at oxford. a college had the living arrangements of a hall, with the addition of monastic-type rules. a warden and about scholars lived and ate meals together in the college buildings. merton college's founding documents provided that: [ ] "the house shall be called the house of the scholars of merton, and it shall be the residence of the scholars forever. [ ] there shall be a constant succession of scholars devoted to the study of letters, who shall be bound to employ themselves in the study of arts or philosophy, the canons or theology. let there also be one member of the collegiate body, who shall be a grammarian, and must entirely devote himself to the study of grammar; let him have the care of the students in grammar, and to him also let the more advanced have recourse without a blush, when doubts arise in their faculty. [ ] there is to be one person in every chamber, where scholars are resident, of more mature age than the others, who is to make his report of their morals and advancement in learning to the warden [ ] the scholars who are appointed to the duty of studying in the house are to have a common table, and a dress as nearly alike as possible. [ ] the members of the college must all be present together, as far as their leisure serves, at the canonical hours and celebration of masses on holy and other days. [ ] the scholars are to have a reader at meals, and in eating together they are to observe silence, and to listen to what is read. in their chambers, they must abstain from noise and interruption of their fellows; and when they speak they must use the latin language. [ ] a scrutiny shall be held in the house by the warden and the seniors, and all the scholars there present, three times a year; a diligent inquiry is to be instituted into the life, conduct, morals, and progress in learning, of each and all; and what requires correction then is to be corrected, and excesses are to be visited with condign punishment. . ." educated men (and those of the s through the s), believed that the earth was the center of the universe and that it was surrounded by a giant spherical dome on which the stars were placed. the sun and moon and planets were each on a sphere around the earth that was responsible for their movements. the origin of the word "planet" meant "wanderer" because the motion of the planets changed in direction and speed. astrology explained how the position of the stars and planets influenced man and other earthly things. for instance, the position of the stars at a person's birth determined his character. the angle and therefore potency of the sun's rays influenced climate, temperament, and changes of mortal life such as disease and revolutions. unusual events such as the proximity of two planets, a comet, an eclipse, a meteor, or a nova were of great significance. a star often was thought to presage the birth of a great man or a hero. there was a propitious time to have a marriage, go on a journey, make war, and take herbal medicine or be bled by leeches, the latter of which was accompanied by religious ceremony. cure was by god, with medical practitioners only relieving suffering. but there were medical interventions such as pressure and binding were applied to bleeding. arrow and sword wounds to the skin or to any protruding intestine were washed with warm water and sewn up with needle and silk thread. ribs were spread apart by a wedge to remove arrow heads. fractured bones were splinted or encased in plaster. dislocations were remedied. hernias were trussed. bladder stones blocking urination were pushed back into the bladder or removed through an artificial opening in the bladder. surgery was performed by butchers, blacksmiths, and barbers. roger bacon, an oxford master, began the science of physics. he read arab writers on the source of light rays being from the object seen, the nature of refraction and reflection of light, and the properties of lenses. he studied the radiation of light and heat. he studied angles of reflection in plane, spherical, cylindrical, and conical mirrors, in both their concave and convex aspects. he did experiments in refraction in different media, e.g. air, water, and glass, and knew that the human cornea refracted light, and that the human eye lens was doubly convex. he comprehended the magnifying power of convex lenses and conceptualized the combination of lenses which would increase the power of vision by magnification. he realized that rays of light pass so much faster than those of sound or smell that the time is imperceptible to humans. he knew that rays of heat and sound penetrate all matter without our awareness and that opaque bodies offered resistance to passage of light rays. he knew the power of parabolic concave mirrors to cause parallel rays to converge after reflection to a focus and knew that a mirror could be produced that would start a fire at a fixed distance. these insights made it possible for jewelers and weavers to use lenses to view their work instead of glass globes full of water, which distorted all but the center of the image: "spherical aberration". the lens, whose opposite surfaces were sections of spheres, took the place of the central parts of the globe over the image. he knew about magnetic poles attracting, if different and repelling, if the same, and the relation of magnets' poles to those of the heavens and earth. he calculated the circumference of the world and the latitude and longitude of terrestrial positions. he foresaw sailing around the world. he studied the planetary motions and astronomical tables to forecast future events. he did calculations on days in a month and days in a year which later contributed to the legal definition of a leap year. his explanation of a rainbow as a result of natural laws was contrary to theological opinion that a rainbow was placed in the heavens to assure mankind that there was not to be another universal deluge. bacon began the science of chemistry when he took the empirical knowledge as to a few metals and their oxides and some of the principal alkalis, acids, and salts to the abstract level of metals as compound bodies the elements of which might be separated and recomposed and changed among the states of solid, liquid, and gas. when he studied man's physical nature, health, and disease, he opined that the usefulness of a talisman was not to bring about a physical change, but to bring the patient into a frame of mind more conducive to physical healing. he urged that there be experiments in chemistry to develop medicinal drugs. he studied different kinds of plants and the differences between arable land, forest land, pasture land, and garden land. bacon was an extreme proponent of the inductive method of finding truths, e.g. by categorizing all available facts on a certain subject to ascertain the natural laws governing it. his contribution to the development of science was abstracting the method of experiment from the concrete problem to see its bearing and importance as a universal method of research. he advocated changing education to include studies of the natural world using observation, exact measurement, and experiments. the making and selling of goods diverged e.g. as the cloth merchant severed from the tailor and the leather merchant severed from the butcher. these craftsmen formed themselves into guilds, which sought charters to require all craftsmen to belong to the guild of their craft, to have legal control of the craft work, and be able to expel any craftsman for disobedience. these guilds were composed of master craftsmen, their journeymen, and apprentices. these guilds determined the wages and working conditions of the craftsmen and petitioned the borough authorities for ordinances restraining trade, for instance by controlling the admission of outsiders to the craft, preventing foreigners from selling in the town except at fairs, limiting purchases of raw materials to suppliers within the town, forbidding night work, restricting the number of apprentices to each master craftsmen, and requiring a minimum number of years for apprenticeships. in return, these guilds assured quality control. in some boroughs, they did work for the town, such as maintaining certain defensive towers or walls of the town near their respective wards. in some boroughs, fines for infractions of these regulations were split between the guild and the government. in some towns, the merchant guilds attempted to directly regulate the craft guilds. crafts fought each other. there was a street battle with much bloodshed between the goldsmiths and the parmenters and between the tailors and the cordwainers in in london. there was also a major fight between the goldsmiths and the tailors in . the parish clerks' company was chartered in . the citizens of london had a common seal for the city. london merchants traveled throughout the nation with goods to sell exempt from tolls. most of the london aldermen were woolmongers, vintners, skinners, and grocers by turns or carried on all these branches of commerce at once. jews were allowed to make loans with interest up to d. a week for s. lent. there are three inns in london. inns typically had narrow facades, large courtyards, lodging and refreshment for the well-off, warehousing and marketing facilities for merchants, and stabling and repairs for wagons. caregiving infirmaries such as "bethlehem hospital" were established in london. one was a lunatic infirmary founded by the sheriff of london. benefactors conveyed plots of land with houses to the city for the benefit and use of the franciscan friars who came to london as missionaries because the friars' law forbade them from owning anything. the city held the land in trust for the beneficiaries, the friars. only tiles were used for roofing in london, because wood shingles were fire hazards and fires in london had been frequent. some areas near london are disclaimed by the king to be royal forest land, so all citizens could hunt there and till their land there without interference by the royal foresters. the sheriff's court in london lost its old importance and handled mainly trespass and debt cases, while important cases went to the hustings, which was presided over by the mayor with the sheriffs and aldermen in attendance. from the early s, the mayor's court took on the work which the weekly husting could not manage. this consisted mostly of assault and robbery cases. murder and manslaughter cases were left to the royal courts. london aldermen were elected by the citizens of their respective wards in wardmotes, in which was also arranged the watch, protection against fire, and probably also assessment of the taxes within the ward. there was much effort by the commoners to influence the governance of the city. in they forced their way into the townmote and by this brute show of strength, which threatened riot, they made their own candidate mayor. subsequent elections were tumultuous. the tower of london now had outer walls of fortress buildings surrounded by a wide and deep moat, over which was one stone causeway and wooden drawbridge. within this was an inner curtain wall with twelve towers and an inner moat. the palace within was a principal residence of english monarchs, whose retinue was extensive, including the chief officers of state: lord high steward, lord high chancellor, lord high treasurer, lord great chamberlain, lord high constable, keeper of the seals, and the king's marshall; lesser officials such as the chamberlain of the candles, keeper of the tents, master steward of the larder, usher of the spithouse, marshall of the trumpets, keeper of the books, keeper of the dishes and of the cups, and steward of the buttery; and numbers of cat hunters, wolf catchers, clerks and limners, carters, water carriers, washerwomen and laundresses, chaplains, lawyers, archers, huntsmen, hornblowers, barbers, minstrels, guards and servitors, and bakers and confectioners. the fortress also contained a garrison, armory, chapels, stables, forge, wardrobe for a tailor's workroom and secure storage of valuable clothes, silver plate, and expensive imports such as sugar, rice, almonds, dried fruits, cinnamon, saffron, ginger, galingale, zedoary, pepper, nutmeg, and mace. there was a kitchen with courtyard for cattle, poultry, and pigs; dairy, pigeon loft, brewery, beehives, fruit stores, gardens for vegetables and herbs; and sheds for gardeners. there was also a mint, which minted a gold penny worth s. of silver, a jewel house, and a menagerie (with leopards, lions, a bear, and an elephant). the fortress also served as a state prison. most prisoners there had opposed the royal will; they were usually permitted to live in quarters in the same style they were used to, including servants and visits by family and friends. but occasionally prisoners were confined in irons in dark and damp dungeons. the king's family, immediate circle, and most distinguished guests dined elegantly in the great hall at midday. they would first wash their hands in hot water poured by servants over bowls. the table had silver plate, silver spoons, and cups of horn, crystal, maple wood, or silver laid on a white cloth. each guest brought his own knife in a leather sheath attached to a belt or girdle. a procession of servitors brought the many dishes to which the gentlemen helped the ladies and the young their seniors by placing the food in scooped-out half-loaves of bread that were afterwards distributed to the poor. a wine cup was handed around the table. in the winter after dinner, there would often be games of chess or dice or songs of minstrels, and sometimes dancing, juggler or acrobat displays, or storytelling by a minstrel. in the summer there were outdoor games and tournaments. hunting with hounds or hawks was popular with both ladies and gentlemen. the king would go to bed on a feather mattress with fur coverlet that was surrounded by linen hangings. his grooms would sleep on trundle beds in the same room. the queen likewise shared her bedchamber with several of her ladies sleeping on trundle beds. breakfast was comprised of a piece of bread and a cup of wine taken after the daily morning mass in one of the chapels. sometimes a round and deep tub was brought into the bedchamber by servants who poured hot water onto the bather in the tub. baths were often taken in the times of henry iii, who believed in cleanliness and sanitation. henry iii was also noted for his luxurious tastes. he had a linen table cloth, goblets of mounted cocoa-nut, a glass cup set in crystal, and silk and velvet mattresses, cushions, and bolster. he had many rooms painted with gold stars, green and red lions, and painted flowers. to his sister on her marriage, he gave goldsmith's work, a chess table, chessmen in an ivory box, silver pans and cooking vessels, robes of cloth of gold, embroidered robes, robes of scarlet, blue, and green fine linen, genoese cloth of gold, two napkins, and thirteen towels. in the king's grant to oxford, the mayor and good men were authorized to take weekly for three years / d. on every cart entering the town loaded with goods, if it was from the county, or d. if it came from outside the county; / d. for every horse load, except for brushwood; / d. on every horse, mare, ox, or cow brought to sell; and / d. for every five sheep, goats, or pigs. english ships had one mast with a square sail. the hulls were made of planks overlapping each other. there was a high fore castle [tower] on the bow, a top castle on the mast, and a high stern castle from which to shoot arrows down on other ships. there were no rowing oars, but steering was still by an oar on the starboard side of the ship. the usual carrying capacity was tuns [big casks of wine each with about gallons]. on the coasts there were lights and beacons. harbors at river mouths were kept from silting up. ships were loaded from piers. the construction of london bridge had just been finished. bricks began to be imported for building. about % of the population lived in towns. churches had stained glass windows. newcastle-on-tyne received these new rights: . -and that they shall justly have their lands and tenures and mortgages and debts, whoever owes them to them. . -concerning their lands and tenures within the town, right shall be done to them according to the custom of the city winton. . -and of all their debts which are lent in newcastle-on-tyne and of mortgages there made, pleas shall be held at newcastle-on-tyne. . -none of them shall plead outside the walls of the city of newcastle-on-tyne on any plea, except pleas of tenures outside the city and except the minters and my ministers. . -that none of them be distrained by any without the said city for the repayment of any debt to any person for which he is not capital debtor or surety. . -that the burgesses shall be quit of toll and lastage [duty on a ship's cargo] and pontage [tax for repairing bridges] and have passage back and forth. . -moreover, for the improvement of the city, i have granted them that they shall be quit of year's gift and of scotale [pressure to buy ale at the sheriff's tavern], so that my sheriff of newcastle-on-tyne or any other minister shall not make a scotale. . -and whosoever shall seek that city with his merchandise, whether foreigners or others, of whatever place they may be, they may come sojourn and depart in my safe peace, on paying - - the due customs and debts, and any impediment to these rights is prohibited. . -we have granted them also a merchant guild. . and that none of them [in the merchant guild] shall fight by combat. the king no longer lives on his own from income from his own lands, but takes money from the treasury. a tax of a percentage of / the of personal property was levied in for a war, in return for which the king signed the magna carta. it was to be paid by all tenants-in-chief, men of the royal domain, burgesses of the boroughs and cities, clerical tenants-in-chief, and religious houses. the percentage tax came to be used frequently and ranged from about / th to / th. in , this tax was bifurcated into one percentage amount for the rural districts and a higher one for urban districts, because the burgesses had greater wealth and much of it was hard to uncover because it was in the possession of customers and debtors. it was usually / th for towns and royal domains and / th in the country. this amount of money collected by this tax increased with the wealth of the country. the king takes custody of lands of lunatics and idiots, as well as escheats of land falling by descent to aliens. henry iii took s. from his tenants-in-chief for the marriage of his daughter, and two pounds for the knighting of his son. by , the king was hiring soldiers at s. per day for knights, and d. a day for less heavily armed soldiers, and d. a day for crossbowmen. some castle-guard was done by watchmen hired at d. a day. ships were impressed when needed. sometimes private ships were authorized to ravage the french coasts and take what spoil they could. while king henry iii was underage, there was much controversy as to who should be his ministers of state, such as justiciar, chancellor, and treasurer. this led to the concept that they should not be chosen by the king alone. after he came of age, elected men from the baronage fought to have meetings and his small council in several conferences called great councils or parliaments (from french "to speak the mind") to discuss the levying of taxes and the solution of difficult legal cases, the implementation of the magna carta, the appointment of the king's ministers and sheriffs, and the receipt and consideration of petitions. the barons paid / the tax on their personal property to have three barons of their choice added to the council. statutes were enacted. landholders were given the duty of electing four of their members in every county to ensure that the sheriff observed the law and to report his misdemeanors to the justiciar. they were also given the duty of electing four men from the county from whom the exchequer was to choose the sheriff of the year. earl montfort and certain barons forced king henry iii to summon a great council or parliament in in which the common people were represented officially by two knights from every county, two burgesses from every borough, and two representatives from each major port. so the king's permanent small council became a separate body from parliament and its members took a specific councilor's oath in to give faithful counsel, to keep secrecy, to prevent alienation of ancient demesne, to procure justice for the rich and poor, to allow justice to be done on themselves and their friends, to abstain from gifts and misuse of patronage and influence, and to be faithful to the queen and to the heir. the law the barons forced successive kings to sign the magna carta until it became the law of the land. it became the first statute of the official statute book. its provisions express the principle that a king is bound by the law and is not above it. however, there is no redress if the king breaches the law. the magna carta was issued by john in . a revised version was issued by henry iii in with the forest clauses separated out into a forest charter. the two versions are replicated together, with the formatting of each indicated in the titles below. {magna carta - } magna carta - & magna carta - {john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou: to the archbishops, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, reeves, ministers, and all bailiffs and others, his faithful subjects, greeting. know ye that in the presence of god, and for the health of our soul, and the souls of our ancestors and heirs, to the honor of god, and the exaltation of holy church, and amendment of our realm, by the advice of our reverend fathers, stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church; henry, archbishop of dublin; william of london, peter of winchester, jocelin of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, and benedict of rochester, bishops; master pandulph, the pope's subdeacon and familiar; brother aymeric, master of the knights of the temple in england; and the noble persons, william marshall, earl of pembroke; william, earl of salisbury; william, earl of warren; william, earl of arundel; alan de galloway, constable of scotland; warin fitz-gerald, peter fitz-herbert, hubert de burgh, seneshal of poitou, hugh de neville, matthew fitz-herbert, thomas basset, alan basset, philip daubeny, robert de roppelay, john marshall, john fitz-hugh, and others, our liegemen:} henry by the grace of god, king of england, lord of ireland, duke of normandy and guyan and earl of anjou, to all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers and to all bailiffs and other our faithful subjects which shall see this present charter, greeting. know ye that we, unto the honor of almighty god, and for the salvation of the souls of our progenitors and successors kings of england, to the advancement of holy church and amendment of our realm, of our mere and free will, have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of england forever. [i. a confirmation of liberties] first, we have granted to god, and by this our present charter confirmed, for us and our heirs forever, that the english church shall be free and enjoy her whole rights and her liberties inviolable. {and that we will this so to be observed appears from the fact that we of our own free will, before the outbreak of the dissensions between us and our barons, granted, confirmed, and procured to be confirmed by pope innocent iii the freedom of elections, which is considered most important and necessary to the english church, which charter we will both keep ourself and will it to be kept with good faith by our heirs forever.} we have also granted to all the free men of our realm, for us and our heirs forever, all the liberties underwritten, to have and to hold to them and their heirs of us and our heirs. [ii. the relief of the king's tenant of full age] if any of our earls, barons, or others who hold of us in chief by knight's service dies, and at the time of his death his heir is of full age and owes to us a relief, he shall have his inheritance on payment of [no more than] the old relief; to wit, the heir or heirs of an earl, for an entire earldom, pounds [ , s.]; the heir or heirs of a baron of an entire barony, { pounds} marks; the heir or heirs of an entire knight's fee, s. at the most [about / of a knight's annual income]; and he who owes less shall give less, according to the old custom of fees. [iii. the wardship of an heir within age. the heir a knight] but if the heir of such be under age, his lord shall not have the ward of him, nor of his land, before that he has taken of him homage. if, however, any such heir is under age and in ward, he shall have his inheritance without relief or fine when he comes of age, that is, twenty-one years of age. so that if such an heir not of age is made a knight, yet nevertheless his land shall remain in the keeping of his lord unto the aforesaid term. [iv. no waste shall be made by a guardian in ward's lands] the guardian of the land of any heir thus under age shall take therefrom only reasonable issues, customs, and services, without destruction or waste of men or goods. and if we commit the custody of any such land to the sheriff or any other person answerable to us for the issues of the same land, and he commits destruction or waste, we will take an amends from him and recompense therefore. and the land shall be committed to two lawful and discreet men of that fee, who shall be answerable for the issues of the same land to us or to whomsoever we shall have assigned them. and if we give or sell the custody of any such land to any man, and he commits destruction or waste, he shall lose the custody, which shall be committed to two lawful and discreet men of that fee, who shall, in like manner, be answerable to us as has been aforesaid. [v. guardians shall maintain the inheritance of their wards and of bishopricks, etc.] the guardian, so long as he shall have the custody of the land, shall keep up and maintain the houses, parks, fishponds, pools, mills, and other things pertaining thereto, out of the issues of the same, and shall restore to the heir when he comes of age, all his land stocked with {ploughs and tillage, according as the season may require and the issues of the land can reasonably bear} ploughs and all other things, at the least as he received it. all these things shall be observed in the custodies of vacant archbishopricks, bishopricks, abbeys, priories, churches, and dignities, which appertain to us; except this, that such custody shall not be sold. [vi. heirs shall be married without disparagement] heirs shall be married without loss of station. {and the marriage shall be made known to the heir's nearest of kin before it is agreed.} [vii. a widow shall have her marriage, inheritance, and querentine (period of forty days during which the widow has a privilege of remaining in the mansion house of which her husband died seized). the king's widow, etc.] a widow, after the death of her husband, shall immediately and without difficulty have her marriage portion [property given to her by her father] and inheritance. she shall not give anything for her marriage portion, dower, or inheritance which she and her husband held on the day of his death, and she may remain in her husband's house for forty days after his death, within which time her dower shall be assigned to her. if that house is a castle and she leaves the castle, then a competent house shall forthwith be provided for her, in which she may honestly dwell until her dower is assigned to her as aforesaid; and in the meantime her reasonable estovers of the common [necessaries or supplies such as wood], etc. no widow shall be compelled [by penalty of fine] to marry so long as she has a mind to live without a husband, provided, however, that she gives security that she will not marry without our assent, if she holds of us, or that of the lord of whom she holds, if she holds of another. [viii. how sureties shall be charged to the king] neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt and the debtor himself is ready to satisfy therefore. nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. if the debtor fails to pay, not having the means to pay, or will not pay although able to pay, then the sureties shall answer the debt. and, if they desire, they shall hold the debtor's lands and rents until they have received satisfaction of that which they had paid for him, unless the debtor can show that he has discharged his obligation to them. {if anyone who has borrowed from the jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt as long as he remains under age, of whomsoever he may hold. if the debt falls into our hands, we will take only the principal sum named in the bond.} {and if any man dies indebted to the jews, his wife shall have her dower and pay nothing of that debt; if the deceased leaves children under age, they shall have necessaries provided for them in keeping with the estate of the deceased, and the debt shall be paid out of the residue, saving the service due to the deceased's feudal lords. so shall it be done with regard to debts owed persons other than jews.} [ix. the liberties of london and other cities and towns confirmed] the city of london shall have all her old liberties and free customs, both by land and water. moreover, we will and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. {no scutage or aid shall be imposed in our realm unless by common counsel thereof, except to ransom our person, make our eldest son a knight, and once to marry our eldest daughter, and for these only a reasonable aid shall be levied. so shall it be with regard to aids from the city of london.} {to obtain the common counsel of the realm concerning the assessment of aids (other than in the three aforesaid cases) or of scutage, we will have the archbishops, bishops, abbots, earls, and great barons individually summoned by our letters; we will also have our sheriffs and bailiffs summon generally all those who hold lands directly of us, to meet on a fixed day, but with at least forty days' notice, and at a fixed place. in all such letters of summons, we will explain the reason therefor. after summons has thus been made, the business shall proceed on the day appointed, according to the advice of those who are present, even though not all the persons summoned have come.} {we will not in the future grant permission to any man to levy an aid upon his free men, except to ransom his person, make his eldest son a knight, and once to marry his eldest daughter, and on each of these occasions only a reasonable aid shall be levied.} [x. none shall distrain for more service than is due.] no man shall be compelled to perform more service for a knight's fee nor any freehold than is due therefrom. [xi. common pleas shall not follow the king's court] people who have common pleas shall not follow our court traveling about the realm, but shall be heard in some certain place. [xii. where and before whom assizes shall be taken. adjournment for difficulty] {land assizes of novel disseisin, mort d'ancestor and darrein presentment shall be heard only in the county where the property is situated, and in this manner: we or, if we are not in the realm, our chief justiciary, shall send two justiciaries through each county four times a year [to clear and prevent backlog], and they, together with four knights elected out of each county by the people thereof, shall hold the said assizes in the county court, on the day and in the place where that court meets.} assizes of novel disseisin, mort d'ancestor shall be heard only in the county where the property is situated, and in this manner: we, or if we are not in the realm, our chief justiciary, shall send justiciaries through each county once a year, and they together with knights of that county shall hold the said assizes in the county. {if the said assizes cannot be held on the day appointed, so many of the knights and freeholders as were present on that day shall remain as will be sufficient for the administration of justice, according to the amount of business to be done.} and those things that at the coming of our foresaid justiciaries, being sent to take those assizes in the counties, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some articles cannot be determined by them, shall be referred to our justices of the bench and there shall be ended. [xiii. assizes of darrein presentment] assizes of darrein presentment shall always be taken before our justices of the bench and there shall be determined. [xiv. how men of all sorts shall be amerced and by whom] a freeman shall be amerced [made to pay a fine to the king] for a small offense only according to the degree thereof, and for a serious offense according to its magnitude, saving his position and livelihood; and in like manner a merchant, saving his trade and merchandise, and a villein saving his tillage, if they should fall under our mercy. none of these amercements shall be imposed except by the oath of honest men of the neighborhood. earls and barons shall be amerced only by their peers, and only in accordance with the seriousness of the offense. {no amercement shall be imposed upon a cleric's lay tenement, except in the manner of the other persons aforesaid, and without regard to the value of his ecclesiastical benefice.} no man of the church shall be amerced except in accordance with the seriousness of the offense and after his lay tenement, but not after the quantity of his spiritual benefice. [xv. making of bridges and banks] no town or freeman shall be compelled to build bridges over rivers or banks except those bound by old custom and law to do so. [xvi. defending of banks] no banks [land near a river] shall be defended [used by the king alone, e.g. for hunting], from henceforth, but such as were in defense in the time of king henry [ii] our grandfather, by the same places and in the same bounds as in his time. [xvii. holding pleas of the crown] no sheriff, constable, coroners, or other of our bailiffs shall hold pleas of our crown [but only justiciars, to prevent disparity of punishments and corruption]. {all counties, hundreds, wapentakes, and tithings (except our demesne manors) shall remain at the old rents, without any increase.} [xviii. the king's debtor dying, the king shall be first paid] if anyone holding a lay fee of us dies, and our sheriff or our bailiff show our letters patent [public letter from a sovereign or one in authority] of summons for a debt due to us from the deceased, it shall be lawful for such sheriff or bailiff to attach and list the goods and chattels of the deceased found in the lay fee to the value of that debt, by the sight and testimony of lawful men [to prevent taking too much], so that nothing thereof shall be removed therefrom until our whole debt is paid; then the residue shall be given up to the executors to carry out the will of the deceased. if there is no debt due from him to us, all his chattels shall remain the property of the deceased, saving to his wife and children their reasonable shares. {if any freeman dies intestate, his chattels shall be distributed by his nearest kinfolk and friends, under supervision of the church, saving to each creditor the debts owed him by the deceased.} [xix. purveyance for a castle] no constable or other of our bailiffs shall take grain or other chattels of any man without immediate payment, unless the seller voluntarily consents to postponement of payment. this applies if the man is not of the town where the castle is. but if the man is of the same town as where the castle is, the price shall be paid to him within days. [xx. doing of castle-guard] no constable shall compel any knight to give money for keeping of his castle in lieu of castle-guard when the knight is willing to perform it in person or, if reasonable cause prevents him from performing it himself, by some other fit man. further, if we lead or send him into military service, he shall be excused from castle-guard for the time he remains in service by our command. [xxi. taking of horses, carts, and wood] no sheriff or bailiff of ours, or any other man, shall take horses or carts of any freeman for carriage without the owner's consent. he shall pay the old price, that is, for carriage with two horses, d. a day; for three horses, d. a day. no demesne cart of any spiritual person or knight or any lord shall be taken by our bailiffs. neither we nor our bailiffs will take another man's wood for our castles or for other of our necessaries without the owner's consent. [xxii. how long felons' lands shall be held by the king] we will hold the lands of persons convicted of felony for only a year and a day [to remove the chattels and movables], after which they shall be restored to the lords of the fees. [xxiii. in what place weirs shall be removed] all fishweirs [obstructing navigation] shall be entirely removed by the thames and medway rivers, and throughout england, except upon the seacoast. [xxiv. in what case a praecipe in capite is not grantable] the [royal] writ called "praecipe in capite" [for tenements held in chief of the crown] shall not in the future be granted to anyone respecting any freehold if thereby a freeman [who has a mesne lord] may not be tried in his lord's court. [xxv. there shall be but one measure throughout the realm] there shall be one measure of wine throughout our realm, one measure of ale, and one measure of grain, to wit, the london quarter, and one breadth of dyed cloth, russets, and haberjets, to wit, two {ells} yards within the selvages. as with measures so shall it also be with weights. [xxvi. inquisition of life and limb] henceforth nothing shall be given or taken for a writ of inquisition upon life or limb, but it shall be granted freely and not denied. [xxvii. tenure of the king in socage and of another by knight's service. petty serjeanty.] if anyone holds of us by fee farm, socage, or burgage, and also holds land of another by knight's service, we will not by reason of that fee farm, socage, or burgage have the wardship of his heir, or the land which belongs to another man's fee. nor will we have the custody of such fee farm, socage, or burgage unless such fee farm owe knight's service. we will not have the wardship of any man's heir, or the land which he holds of another by knight's service, by reason of any petty serjeanty which he holds of us by service of rendering us knives, arrows, or the like. [xxviii. wages of law shall not be without witness] in the future no [royal] bailiff shall upon his own unsupported accusation put any man to trial or oath without producing credible witnesses to the truth of the accusation. [xxix. none shall be condemned without trial. justice shall not be sold or delayed.] no freeman shall be taken, imprisoned, disseised of his freehold or liberties or free customs, or be outlawed, banished, or in any way ruined, nor will we prosecute or condemn him, except by the lawful judgment of his peers or by the law of the land. to no one will we sell [by bribery], to none will we deny or delay, right or justice. [xxx. merchant strangers coming into this realm shall be well used] all merchants shall have safe conduct to go and come out of and into england, and to stay in and travel through england by land and water, to buy and sell, without evil tolls, in accordance with old and just customs, except, in time of war, such merchants as are of a country at war with us. if any such be found in our realm at the outbreak of war, they shall be detained, without harm to their bodies or goods, until it be known to us or our chief justiciary how our merchants are being treated in the country at war with us. and if our merchants are safe there, then theirs shall be safe with us. {henceforth anyone, saving his allegiance due to us, may leave our realm and return safely and securely by land and water, except for a short period in time of war, for the common benefit of the realm.} [xxxi. tenure of a barony coming into the king's hands by escheat] if anyone dies holding of any escheat, such as the honor of wallingford, nottingham, boulogne, {lancaster,} or other escheats which are in our hands and are baronies, his heir shall not give any relief or do any service to us other than he would owe to the baron, if such barony had been in the baron's hands. and we will hold the escheat in the same manner in which the baron held it. nor shall we have, by occasion of any barony or escheat, any escheat or keeping of any of our men, unless he who held the barony or escheat elsewhere held of us in chief. persons dwelling outside the forest [in the county] need not in the future come before our justiciaries of the forest in answer to a general summons unless they are impleaded or are sureties for any person or persons attached for breach of forest laws. [xxxii. lands shall not be aliened to the prejudice of the lord's service] no freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the lord of the fee may have the service due to him which belongs to the fee. {we will appoint as justiciaries, constables, sheriffs, or bailiffs only such men as know the law of the land and will keep it well.} [xxxiii. patrons of abbeys shall have the custody of them when vacant] all barons who had founded abbeys of which they have charters of english kings or old tenure, shall have the custody of the same when vacant, as is their due. all forests which have been created in our time shall forthwith be disafforested. {so shall it be done with regard to river banks which have been enclosed by fences in our time.} {all evil customs concerning forests and warrens [livestock grounds in forests], foresters and warreners, sheriffs and their officers, or riverbanks and their conservators shall be immediately investigated in each county by twelve sworn knights of such county, who are chosen by honest men of that county, and shall within forty days after this inquest be completely and irrevocably abolished, provided always that the matter has first been brought to our knowledge, or that of our justiciars, if we are not in england.} {we will immediately return all hostages and charters delivered to us by englishmen as security for the peace or for the performance of loyal service.} {we will entirely remove from their offices the kinsmen of gerald de athyes, so that henceforth they shall hold no office in england: engelard de cigogne, peter, guy, and andrew de chanceaux, guy de cigogne, geoffrey de martigny and his brothers, philip mark and his brothers, and geoffrey his nephew, and all their followers.} {as soon as peace is restored, we will banish from our realm all foreign knights, crossbowmen, sergeants, and mercenaries, who have come with horses and arms, to the hurt of the realm.} {if anyone has been disseised or deprived by us, without the legal judgment of his peers, of lands, castles, liberties, or rights, we will immediately restore the same, and if any disagreement arises on this, the matter shall be decided by judgment of the twenty- five barons mentioned below in the clause for securing the peace. with regard to all those things, however, of which any man was disseised or deprived, without the legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which remain in our hands or are held by others under our warranty, we shall have respite during the term commonly allowed to the crusaders, excepting those cases in which a plea was begun or inquest made on our order before we took the cross; when, however, we return from our pilgrimage, or if perhaps we do not undertake it, we will at once do full justice in these matters.} {likewise, we shall have the same respite in rendering justice with respect to the disafforestation or retention of those forests which henry [ii] our father or richard our brother afforested, and concerning custodies of lands which are of the fee of another, which we hitherto have held by reason of the fee which some person has held of us by knight's service, and to abbeys founded on fees other than our own, in which the lord of that fee asserts his right. when we return from our pilgrimage, or if we do not undertake it, we will forthwith do full justice to the complainants in these matters.} [xxxiv. in what only case a woman shall have an appeal of death] no one shall be arrested or imprisoned upon a woman's appeal for the death of any person other than her husband [since no woman was expected to personally engage in trial by combat]. [xxxv. at what time shall be kept a county court, sheriff's turn and a leet court (courts of criminal jurisdiction excepting felonies)] no county court from henceforth shall be held, but from month to month; and where greater time has been used, there shall be greater. nor shall any sheriff, or his bailiff, keep his turn in the hundred but twice in the year; and no where but in due place and accustomed time, that is, once after easter, and again after the feast of saint michael. and the view of frankpledge [the right of assembling the whole male population over years except clergy, earls, barons, knights, and the infirm, at the leet or soke court for the capital frankpledges to give account of the peace kept by individuals in their respective tithings] shall be likewise at the feast of saint michael without occasion, so that every man may have his liberties which he had, or used to have, in the time of king henry [ii] our grandfather, or which he has since purchased. the view of frankpledge shall be so done, that our peace may be kept; and that the tything be wholly kept as it has been accustomed; and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view-making in the time of king henry our grandfather. [xxxvi. no land shall be given in mortmain] it shall not be lawful from henceforth to any to give his land to any religious house, and to take the same land again to hold of the same house [thereby extinguishing the feudal rights of the temporal lord]. nor shall it be lawful to any house of religion to take the lands of any, and to lease the same to him of whom he received it. if any from henceforth give his lands to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee. {all fines unjustly and unlawfully given to us, and all amercements levied unjustly and against the law of the land, shall be entirely remitted or the matter decided by judgment of the twenty-five barons mentioned below in the clause for securing the peace, or the majority of them, together with the aforesaid stephen, archbishop of canterbury, if he himself can be present, and any others whom he may wish to bring with him for the purpose; if he cannot be present, the business shall nevertheless proceed without him. if any one or more of the said twenty-five barons has an interest in a suit of this kind, he or they shall step down for this particular judgment, and be replaced by another or others, elected and sworn by the rest of the said barons, for this occasion only.} {if we have disseised or deprived the welsh of lands, liberties, or other things, without legal judgment of their peers, in england or wales, they shall immediately be restored to them, and if a disagreement arises thereon, the question shall be determined in the marches by judgment of their peers according to the law of england as to english tenements, the law of wales as to welsh tenements, the law of the marches as to tenements in the marches. the same shall the welsh do to us and ours.} {but with regard to all those things of which any welshman was disseised or deprived, without legal judgment of his peers, by king henry [ii] our father or our brother king richard, and which we hold in our hands or others hold under our warranty, we shall have respite during the term commonly allowed to the crusaders, except as to those matters whereon a suit had arisen or an inquisition had been taken by our command prior to our taking the cross. immediately after our return from our pilgrimage, or if by chance we do not undertake it, we will do full justice according to the laws of the welsh and the aforesaid regions.} {we will immediately return the son of llywelyn, all the welsh hostages, and the charters which were delivered to us as security for the peace.} {with regard to the return of the sisters and hostages of alexander, king of the scots, and of his liberties and rights, we will do the same as we would with regard to our other barons of england, unless it appears by the charters which we hold of william his father, late king of the scots, that it ought to be otherwise; this shall be determined by judgment of his peers in our court.} [xxxvii. subsidy in respect of this charter, and the charter of the forest, granted to the king.] escuage [service of the shield, a tenure in knights' service] from henceforth shall be taken as it was wont to be in the time of king henry [ii] our grandfather; reserving to all archbishops, bishops, abbots, priors, templers, hospitallers, earls, barons, and all persons as well spiritual as temporal; all their free liberties and free customs, which they have had in time passed. and all these customs and liberties aforesaid, which we have granted to be held within this our realm, as much as pertains to us and our heirs, we shall observe. {all the customs and liberties aforesaid, which we have granted to be enjoyed, as far as it pertains to us towards our people throughout our realm, let all our subjects, whether clerics or laymen, observe, as far as it pertains toward their dependents.} and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in like wise. and for this our gift and grant of these liberties, and of other constrained in our charter of liberties of our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and our other subjects, have given unto us the fifteenth part of all their movables. and we have granted unto them on the other part, that neither we, nor our heirs, shall procure or do any thing whereby the liberties in this charter contained shall be infringed or broken. and if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. [enforcement] {whereas we, for the honor of god and the reform of our realm, and in order the better to allay the discord arisen between us and our barons, have granted all these things aforesaid. we, willing that they be forever enjoyed wholly and in lasting strength, do give and grant to our subjects the following security, to wit, that the barons shall elect any twenty-five barons of the realm they wish, who shall, with their utmost power, keep, hold, and cause to be kept the peace and liberties which we have granted unto them and by this our present charter have confirmed, so that if we, our justiciary, bailiffs, or any of our ministers offends in any respect against any man, or transgresses any of these articles of peace or security, and the offense is brought before four of the said twenty-five barons, those four barons shall come before us, or our chief justiciary if we are out of the realm, declaring the offense, and shall demand speedy amends for the same. if we or, in case of our being out of the realm, our chief justiciary fails to afford redress within forty days from the time the case was brought before us or, in the event of our having been out of the realm, our chief justiciary, the aforesaid four barons shall refer the matter to the rest of the twenty-five barons, who, together with the commonalty of the whole country, shall distrain and distress us to the utmost of their power, to wit, by capture of our castles, lands, and possessions and by all other possible means, until compensation is made according to their decision, saving our person and that of our queen and children; as soon as redress has been had, they shall return to their former allegiance. anyone in the realm may take oath that, for the accomplishment of all the aforesaid matters, he will obey the orders of the said twenty-five barons and distress us to the utmost of his power; and we give public and free leave to everyone wishing to take oath to do so, and to none will we deny the same. moreover, all such of our subjects who do not of their own free will and accord agree to swear to the said twenty-five barons, to distrain and distress us together with them, we will compel to do so by our command in the aforesaid manner. if any one of the twenty-five barons dies or leaves the country or is in any way hindered from executing the said office, the rest of the said twenty-five barons shall choose another in his stead, at their discretion, who shall be sworn in like manner as the others. in all cases which are referred to the said twenty-five barons to execute, and in which a difference arises among them, supposing them all to be present, or in which not all who have been summoned are willing or able to appear, the verdict of the majority shall be considered as firm and binding as if the whole number had been of one mind. the aforesaid twenty-five shall swear to keep faithfully all the aforesaid articles and, to the best of their power, to cause them to be kept by others. we will not procure, either by ourself or any other, anything from any man whereby any of these concessions or liberties may be revoked or abated. if any such procurement is made, let it be null and void; it shall never be made use of either by us or by any other.} [amnesty] {we have also fully forgiven and pardoned all ill-will, wrath, and malice which has arisen between us and our subjects, both clergy and laymen, during the disputes, to and with all men. moreover, we have fully forgiven and, as far as it pertains to us, wholly pardoned to and with all, clergy and laymen, all offenses made in consequence of the said disputes from easter in the sixteenth year of our reign until the restoration of peace. over and above this, we have caused letters patent to be made for stephen, archbishop of canterbury, henry, archbishop of dublin, the above-mentioned bishops, and master pandulph, for the aforesaid security and concessions.} {wherefore we will that, and firmly command that, the english church shall be free and all men in our realm shall have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely, quietly, fully, and wholly, to them and their heirs, of us and our heirs, in all things and places forever, as is aforesaid. it is moreover sworn, as will on our part as on the part of the barons, that all these matters aforesaid shall be kept in good faith and without deceit. witness the above-named and many others. given by our hand in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign.} these being witnesses: lord s. archbishop of canterbury, e. bishop of london, f. bishop of bathe, g. of wincester, h. of lincoln, r. of salisbury, w. of rochester, x. of worcester, f. of ely, h. of hereford, r. of chichester, w. of exeter, bishops; the abbot of st. edmonds, the abbot of st. albans, the abbot of bello, the abbot of st. augustines in canterbury, the abbot of evesham, the abbot of westminster, the abbot of bourgh st. peter, the abbot of reding, the abbot of abindon, the abbot of malmbury, the abbot of winchcomb, the abbot of hyde, the abbot of certesey, the abbot of sherburn, the abbot of cerne, the abbot of abborebir, the abbot of middleton, the abbot of seleby, the abbot of cirencester, h. de burgh justice, h. earl of chester and lincoln, w. earl of salisbury, w. earl of warren, g. de clare earl of gloucester and hereford, w. de ferrars earl of derby, w. de mandeville earl of essex, h. de bygod earl of norfolk, w. earl of albemarle, h. earl of hereford, f. constable of chester, g. de tos, h. fitzwalter, r. de byponte, w. de bruer, r. de montefichet, p. fitzherbert, w. de aubenie, f. gresly, f. de breus, f. de monemue, f. fitzallen, h. de mortimer, w. de beuchamp, w. de st. john, p. de mauli, brian de lisle, thomas de multon, r. de argenteyn, g. de nevil, w. de mauduit, f. de balun, and others. given at westminster the th day of february the th year of our reign. we, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenour of these presents, do renew the same; willing and granting for us and our heirs, that this charter, and all singular his articles, forever shall be steadfastly, firmly, and inviolably observed; and if any article in the same charter contained, yet hitherto peradventure has not been kept, we will, and by royal authority, command, from henceforth firmly they be observed. felonies are serious crimes which can be punished by loss of life or member. by common law, they now consist of homicide, mayhem, wounding, false imprisonment, arson, rape, robbery, burglary, and larceny. a felon's lands go to his lord or to the king and his chattels are confiscated. if a man accused of felony flies, he can be outlawed. treason was a special felony, which was punishable by hanging after being drawn behind a horse along the rough road to the gibbet. petty treason was treason to one's lord and included adultery with the lord's wife, violation of his daughter, and forgery of his seal. high treason was to the king and include clipping of the king's coin and making counterfeit money. a traitor's land was forfeited to the king. treason had no benefit of clergy. statutes which were enacted after the magna carta follow: nuisance is recognized by this statute: "every freeman, without danger, shall make in his own wood, or in his land, or in his water, which he has within our forest, mills, springs, pools, clay pits, dikes, or arable ground, so that it does not annoy any of his neighbors." anyone taking a widow's dower after her husband's death must not only return the dower, but pay damages in the amount of the value of the dower from the time of death of the husband until her recovery of seisin. widows may bequeath the crop of their ground as well of their dowers as of their other lands and tenements. freeholders of tenements on manors shall have sufficient ingress and egress from their tenements to the common pasture and as much pasture as suffices for their tenements. "grain shall not be taken under the pretense of borrowing or the promise of after-payment without the permission of the owner." "a parent or other who forcefully leads away and withholds, or marries off, an heir who is a minor (under ), shall yield the value of the marriage and be imprisoned until he has satisfied the king for the trespass. if an heir years or older marries without his lord's permission to defraud him of the marriage and the lord offers him reasonable and convenient marriage, without disparagement, then the lord shall hold his land beyond the term of his age, that, of twenty one years, so long that he may receive double the value of the marriage as estimated by lawful men, or after as it has been offered before without fraud or collusion, and after as it may be proved in the king's court. any lord who marries off a ward of his who is a minor and cannot consent to marriage, to a villain or other, such as a burgess, whereby the ward is disparaged, shall lose the wardship and all its profits if the ward's friends complain of the lord. the wardship and profit shall be converted to the use of the heir, for the shame done to him, after the disposition and provision of his friends." (the "marriage" could be annulled by the church.) "if an heir of whatever age will not marry at the request of his lord, he shall not be compelled thereunto; but when he comes of age, he shall pay to his lord the value of the marriage before receiving his land, whether or not he himself marries." "interest shall not run against any minor, from the time of death of his ancestor until his lawful age; so nevertheless, that the payment of the principal debt, with the interest that was before the death of his ancestor shall not remain." the value of debts to be repaid to the king or to any man shall be reasonably determined by the debtor's neighbors and not by strangers. a debtors' plough cattle or sheep cannot be taken to satisfy a debt. the wards and escheats of the king shall be surveyed yearly by three people assigned by the king. the sheriffs, by their counsel, shall approve and let to farm such wards and escheats as they think most profitable for the king. the sheriffs shall be answerable for the issues thereof in the exchequer at designated times. the collectors of the customs on wool exports shall pay this money at the two designated times and shall make yearly accounts of all parcels in ports and all ships. by statute leap year was standardized throughout the nation, "the day increasing in the leap year shall be accounted in that year", "but it shall be taken and reckoned in the same month wherein it grew and that day and the preceding day shall be counted as one day." "an english penny [ d.], called a sterling, round and without any clipping, shall weigh wheat grains dry in the middle of the ear." measurements of distance were standardized to twelve inches to a foot, three feet to a yard, and so forth up to an acre of land. goods which could only be sold by the standard weights and measures (such as ounces, pounds, gallons, bushels) included sacks of wool, leather, skins, ropes, glass, iron, lead, canvas, linen cloth, tallow, spices, confections cheese, herrings, sugar, pepper, cinnamon, nutmeg, wheat, barley, oats, bread, and ale. the prices required for bread and ale were based on the market price for the wheat, barley, and oats from which they were made. the punishment for repeated violations of required measures, weights, or prices of bread and ale by a baker or brewer; selling of spoiled or unwholesome wine, meat, fish by brewers, butchers, or cooks; or a steward or bailiff receiving a bribe was reduced to placement in a pillory with a shaven head so that these men would still be fit for military service and not overcrowd the gaols. forest penalties were changed so that "no man shall lose either life or member [limb] for killing of our deer. but if any man be taken and convicted for taking our venison, he shall make a grievous fine, if he has anything. and if he has nothing to lose, he shall be imprisoned for a year and a day. and after that, if he can find sufficient sureties, he shall be delivered, and, if not, he shall abjure the realm of england." the forest charter provided that: every freeman may allow his pigs to eat in his own wood in the king's forest. he may also drive his pigs through the king's forest and tarry one night within the forest without losing any of his pigs. but people having greyhounds must keep them out of the forest so they don't maim the deer. the forest charter also allowed magnates traveling through the king's forest on the king's command to come to him, to kill one or two deer as long as it was in view of the forester if he was present, or while having a horn blown, so it did not seem to be theft. after a period of civil war, the following statutes were enacted: "all persons, as well of high as of low estate, shall receive justice in the king's court; and none shall take any such revenge or distress by his own authority, without award of our court, although he is damaged or injured, whereby he would have amends of his neighbor either higher or lower." the penalty is a fine according to the trespass. a fraudulent conveyance to a minor or lease for a term of years made to defraud a lord of a wardship shall be void. a lord who maliciously and wrongfully alleges this to a court shall pay damages and costs. if a lord will not render unto an heir his land when he comes of age or takes possession away from an heir of age or removes anything from the land, he shall pay damages. (the king retained the right to take possession of an heir's land for a year or, in lieu of this, to take one year's profit from the land in addition to the relief.) kinsmen of a minor heir who have custody of his land held in socage shall make no waste, sale, nor destruction of the inheritance and shall answer to the heir when he comes of age for the issues of the land, except for the reasonable costs of these guardians. no lord may distrain any of his tenants. no one may drive animals taken by distraint out of the county where they have been taken. "farmers during their terms, shall not make waste, sale, nor exile of house, woods, and men, nor of any thing else belonging to the tenements which they have to farm". church law required that planned marriages be publicly announced [banns]by the priest so that any impediment could be made known. if a marriage was clandestine or both parties knew of an impediment, or it was within the prohibited degrees of consanguinity, the children would be illegitimate. according to church rules, a man could bequeath his personal property subject to certain family rights. these were that if only the wife survived, she received half the property. similarly, if children survived, but no wife, they received half the property. when the wife and children survived, each party received one third. the church hoped that the remaining fraction would go to the church as a reward for praying for the deceased's soul. it taught that dying without a will was sinful. adults were to confess their sins at least yearly to their parish priest, which confession would be confidential. ecclesiastical offenses included fornication, adultery, incest, and bigamy, for which the punishment was usually whipping or a money payment. heresy and sorcery were so infrequent that there was no machinery aptly suited for their suppression. henry de bracton, a royal justice and the last great ecclesiastical attorney, wrote an unfinished treatise: a tract on the laws and customs of england, systematizing and organizing the law of the court rolls with definitions and general concepts and describing court practice and procedure. it was influenced by his knowledge of roman legal concepts, such as res judicata, and by his own opinions, such as that the law should go from precedent to precedent. he also argued that the will and intent to injure was the essence of murder, so that neither an infant nor a madman should be held liable for such and that degrees of punishment should vary with the level of moral guilt in a killing. he thought the deodand to be unreasonable. bracton defines the requirements of a valid and effective gift, still applicable in , as: "it must be complete and absolute, free and uncoerced, extorted neither by fear nor through force. let money or service play no part, lest it fall into the category of purchase and sale, for if money is involved there will then be a sale, and if service, the remuneration for it. if a gift is to be valid the donor must be of full age, for if a minor makes a gift it will be ineffective since (if he so wishes) it shall be returned to him in its entirety when he reaches full age. also let the donor hold in his own name and not another's, otherwise his gift may be revoked. and let him, at the least, be of sound mind and good memory, though an invalid, ill and on his death bed, for a gift make under such conditions will be good if all the other [requirements] of a valid gift are met. for no one, provided he is of good memory, ought to be kept from the administration or disposition of his own property when affected by infirmity, since it is only then that he must make provision for his family, his household and relations, given stipends and settle his bequests; otherwise such persons might suffer damage without fault. but since charters are sometimes fraudulently drawn and gifts falsely taken to be made when they are not, recourse must therefore be had to the country and the neighborhood so that the truth may be declared." in bracton's view, a villein could buy his own freedom and the child of a mixed marriage was free unless he was born in the tenement of his villein parent. judicial procedure the royal court spawned several courts with different specialties and became more like departments of state than offices of the king's household. the justices were career civil servants knowledgeable in the civil and canon law. the court of the king's bench (a marble slab in westminster upon which the throne was placed) traveled with the king and primarily heard criminal cases and pleas of the crown. any use of force, however trivial, was interpreted as breach of the royal peace and could be brought before the king's bench. its records were the coram rege rolls. the court of common pleas primarily heard civil cases brought by one subject against another. pursuant to the magna carta, it sat only at one place, the great hall in westminster. it had concurrent jurisdiction with the king's bench over trespass cases. its records were the de banco rolls. the court of the exchequer with its subsidiary department of the treasury was in almost permanent session at westminster, primarily collecting the crown's revenue and enforcing the crown's rights. a department of the exchequer watched over the affairs of the jews. there was no sharp line demarking the jurisdictions of these courts. no pleas could be brought against the king; rather a petition was addressed to him, which he would answer by an executive writ. appeals from these courts could be made to the king and/or his small council. in , the justiciar as the principal royal executive officer and chief presiding officer over the royal court ended. in , a chief justiciar was appointed to hold pleas before the king. about the same time the presiding justice of the court of common pleas also came to be styled chief justice. henceforth, a justiciar was a royal officer who dealt only with judicial work. the justiciars were no longer statesmen or politicians, but rather men learned in the law. membership in or attendance at the great council or parliament no longer rested upon feudal tenure, but upon a writ of summons which was, to a degree, dependent on the royal will. crown pleas included issues of the king's property, fines due to him, murder (a body found with no witnesses to a killing), homicide (a killing for which there were witnesses), rape, wounding, mayhem, consorting, larceny, robbery, burglary, arson, poaching, unjust imprisonment, selling cloth by nonstandard widths, selling wine by nonstandard weights. crown causes were pled by the king's serjeants or servants at law, who were not clerics. apprentices at law learned pleading from them. between the proprietary action and the possessory assizes there is growing use in the king's courts of writs of entry, by which a tenant may be ordered to give up land, e.g. by a recent flaw in a tenant's title, for a term which has expired, by a widow for her late husband's land, or by an heir who has become of full age from his guardian. for instance: " ...command tertius that ... he render to claimant, who is of full age, as it is said, ten acres ...which he claims to be his right and inheritance and into which the said tertius has no entry save by secundus, to whom primus demised [gaged] them, who had only the wardship thereof while the aforesaid claimant was under age, as he says...". but most litigation about land is still through the writ of right for proprietary issues and the assizes of novel disseisin and mort d'ancestor for possessory issues. actions for debt; covenant; and account, e.g by a lord to his bailiff and receiver of his money, were actions in the king's court. royal itinerant justices, who were members of the royal courts, traveled on eyre on regular circuits to the counties every seven years. they had an administrative function as well as a judicial function. they gave interrogatories to local assizes of twelve men to determine what had happened there since the last eyre. information was aquired on royal proprietary rights, escheats, wardships, treasury matters, and official misdoings of royal officers, sheriffs, coroners, and bailiffs, which could be dealt with in an administrative way. (these administrative duties ceased in the first half of the s.) all boroughs had to send twelve burgesses who were to indict any burgesses suspected of breaking the royal law. every crime, every invasion of royal rights, and every neglect of police duties was to be presented and tried. suspects were held in gaol until their cases could be heard and gaol breaks were common. punishment after trial was prison for serious crimes, expulsion from the realm for less serious crimes, and pledges for good behavior for lesser crimes. fines and amercements both for individual criminal offenses and local communities' faults brought revenue into the exchequer as profits of justice. the king could increase fines and amercements or pardon a person found guilty. the visitation of these justices was anticipated with trepidation. in , the residents of cornwall hid in the woods rather than face the itinerant justices. (the court of the justices in eyre lasted until .) royal coroners held inquests on all sudden deaths to determine whether they were accidental or not. if not, royal justices held trial. they also had duties in treasure trove and shipwreck cases. justices of assize, justices of the peace, and itinerant justices operated at the county level. the traditional county courts had lost much jurisdiction to the royal courts and were now limited to personal actions in causes involving usually no more than s. the great majority of cases had to do with ) writ of right for recovery of land, ) the possessory assizes for the protection of possession, ) debt for recovery of money owed, such as rent ) detinue for detention of a chattel, such as beasts and ) convenant for breach of a contract, later to be limited to contracts under seal. there were also pleas of trespass and claims of fugitive villeins and their goods, nuisances, and encroachments. the action of trespass had broken free of the criminal law, which had been divided into the two categories of felony and trespass. but then the field of tort began to separate itself from that of crime and the more serious trespasses remained criminal while the less serious attached themselves to the civil sphere. the sheriff still constitutes and conducts the court, assisted by elected coroners. the earl of the county had little to do with its court except to take one-third of its profits of justice.the county court met every three or four weeks, usually in the sheriff's castle located in the chief borough of the county, but some met in the open air. it is attended by suitors, certain freeholders of the county who are bound to attend it, that is, to do suit to it. they are the judges of the court. the hundred court decided cases of theft, viewing of boundaries of land, claims for tenurial services, claims for homage, relief, and for wardship; enfeoffments made, battery and brawls not amounting to felony, wounding and maiming of beasts, collection of debts, trespass, detinue, and covenant, which now requires a sealed writing; defamation, and inquiries and presentments arising from the assizes of bread and ale and measures. the action of debt was used for five main purposes: ) money lent, ) the price of goods sold, ) arrears of rent due upon a lease for years, ) money due from a surety, and ) a debt confessed by a sealed document. a paid bailiff had responsibility for the hundred court, which met every three weeks. freeholders of these hundreds owe suit to it; these suitors are the judges. twice a year the sheriff visited each hundred in the county to hold a turn, a court for small offenses, such as encroachment of public land, brewing and baking contrary to government regulations, and use of dishonest weights and measures. everyone who held freehold land in the hundred except the greater magnates had to attend or be fined for absence. the sheriff annually viewed frankpledge, in which every layman without land that could be forfeited for felony, including villeins, were checked for being in a tithing, a group of neighbors responsible for each other's good conduct. this applied to every boy who had reached the age of twelve. he had to swear on the bible "i will be a lawful man and bear loyalty to our lord the king and his heirs, and i will be justiciable to my chief tithing man, so help me god and the saints." each tithing man paid a penny to the sheriff. the sheriff was the judge in his turn. coordinate with the sheriff's turn was a leet court, which had private jurisdiction over the same small offences. if a county or a hundred court gave a false judgment, it had to pay a fine. manorial courts were those in which a lord had for his tenants. it was presided over by the lord, or his steward, who decided the outcomes of cases, with or without the villeins attending it, based on the customs of the manor. it had a civil jurisdiction, and dealt typically with land issues and minor offenses, such as, actions when the amount at stake is less than s., of debt, detinue, trespass and covenant. s. was the equivalent of around oxen or sheep. usually, the lord's court had a single manor with a single vill. the cities and boroughs, having a degree of organization and independence, had municipal courts whose jurisdiction was determined by privileges.given by charter from the king or by prescription of ancient origin. court was held by the sheriff, and after a time by its mayor, at the borough's weekly meeting of its burgesses. the burgesses would take the profits of the court and the tolls and house-rents that had been paid to the sheriff. still in existence is the old self-help law of hamsocne, the thief hand-habbende, the thief back-berend, the old summary procedure where the thief is caught in the act, aethelstan's laws, and edward the confessor's laws. under the name of "actio furti" [appeal of larceny] is the old process by which a thief can be pursued and goods vindicated. as before and for centuries later, deodands were forfeited to the king to appease god's wrath. these chattel which caused the death of a person were usually oxen, carts, cart teams, horses, boats, cauldrons, or millwheels. then they were forfeited to the community, which paid the king their worth. sometimes the justices named the charitable purpose for which the deodand was to be spent, such as the price of a boat to go to the repair of a bridge. five cases from a county court are: ) "john croc was drowned from his horse and cart in the water of bickney. judgment: misadventure. the price of the horse and cart is s. d. deodand." ) "willam ruffus was crushed to death by a certain trunk. the price of the trunk is d., for which the sheriff is to answer. d. deodand." ) "william le hauck killed edric le poter and fled, so he is -to be exacted and outlawed. he was in the tithing of reynold horloc in clandon of the abbot of chertsey (west clandon), so it is in mercy. his chattels were s., for which the bailiff of the abbot of chertsey is to answer." ) "richard de bregsells, accused of larceny, comes and denies the whole and puts himself on the country for good or ill. the twelve jurors and four vills say that he is not guilty, -so he is quit." ) william le wimpler and william vintner sold wine contrary to the statute, so they are in mercy. other cases dealt with issues of entry, e.g. whether land was conveyed or just rented; issues of whether a man was free, for which his lineage was examined; issues of to which lord a villein belonged; issues of nuisance such as making or destroying a bank, ditch, or hedge; diverting a watercourse or damming it to make a pool; obstructing a road, and issues of what grazing rights were conveyed in pasture land, waste, woods, or arable fields between harvest and sowing. grazing right disputes usually arose from the ambiguous language in the grant of land "with appurtenances". courts awarded specific relief as well as money damages. if a landlord broke his covenant to lease land for a term of years, the court restored possession to the lessee. if a lord did not perform the services due to his superior lord, the court ordered him to perform the services. the courts also ordered repair by a lessee. debts of country knights and freeholders were heard in the local courts; debts of merchants and burgesses were heard in the courts of the fairs and boroughs; debts due under wills and testaments were heard in the ecclesiastical courts. the ecclesiastical courts deemed marriage to legitimize bastard children whose parents married, so they inherited personal property and money of their parents. proof was by compurgation. church law required excommunication to be in writing with the reasons therefore, and a copy given to the excommunicant. a church judge was required to employ a notary or two men to write down all acts of the judge and to give a copy to the parties to protect against unjust judges. no cleric was allowed to pronounce or execute a sentence of death or to take part in judicial tests or ordeals. anyone knowingly accepting a stolen article was required to restore it to its owner. heretics were to be excommunicated. trial by combat is still available, although it is extremely rare for it to take place. in the appeal of felony, when offered combat, a defendant could choose between combat and recourse to a verdict of his neighbors. the manor court imposed penalties on those who did not perform their services to the manor and the lord wrote down the customs of the manor for future use in other courts. by statute, no fines could be taken of any man for fair pleading in the circuit of justiciars, county, hundred, or manor courts. various statutes relaxed the requirements for attendance at court of those who were not involved in a case as long as there were enough to make the inquests fully. and "every freeman who owes suit to the county, tything, hundred, and wapentake, or to the court of his lord, may freely make his attorney attend for him." all above the rank of knight were exempted from attendance on the sheriff's turn, unless specifically summoned. prelates and barons were generally excepted from the county courts by the charters of their estates. charters of boroughs often excepted their representatives at the county court when there were no justices. some barons and knights paid the sheriff to be excused. the king often relieved the simple knights by special license. there was frequently a problem of not having enough knights to hold the assizes. henry iii excused the attendance at hundred courts of all but those who were bound to special service, or who were concerned in suits. trespass has become a writ of course in the common law. it still involves violence, but its element of breach of the peace extends to those breaches which do not amount to felony. it can include assault and battery, physical force to land, and physical force to chattels, e.g. assaulting and beating the plaintiff, breaking into his close, or carrying off his goods. one found guilty is fined and imprisoned. as in criminal matters, if a defendant does not appear at court, his body can be seized and imprisoned, and if he cannot be found, he may be outlawed. trespass to goods results in damages, rather than the return of the goods. various cases from the manors of the abbey of bec in - are: . ragenilda of bec gives s. for having married without licence. pledge, william of pinner. the same ragenilda demands against roger loft and juliana his wife a certain messuage which belonged to robert le beck, and a jury of -twelve lawful men is granted her in consideration of the said fine, and if she recovers seisin she will give in all s. and twelve jurors are elected, to wit, john of hulle, william maureward, robert hale walter but, walter sigar, william brihtwin, richard horseman, richard leofred, william john's son, hugh cross, richard pontfret and robert croyser, john bisuthe and gilbert bisuthe who are sworn. and they say that the said ragenilda has the greater right. therefore let her have seisin. . richard guest gives d. and if he recovers will give s. to have a jury of twelve lawful men as to whether he has the greater right in a certain headland at eastcot which ragenilda widow of william andrews holds, or the said ragenilda. pledges for the fine, john brook and richard of pinner. and the said ragenilda comes and says that she has no power to bring that land into judgment because she has no right in it save by reason of the wardship of the son and heir of her husband, who is under age. and richard is not able to deny this. therefore let him await [the heir's] full age. . walter hulle gives s. d. for licence to dwell on the land of the prior of harmondsworth so long as he shall live and as a condition finds pledges, to wit, william slipper, john bisuthe, gilbert bisuthe, hugh tree, william john's son, john hulle, who undertake that the said walter shall do to the lord all the services and customs which he would do if he dwelt on the lord's land and that his heriot shall be secured to the lord in case he dies there [i.e. at harmondsworth]. . geoffrey sweyn demands the moiety of one virgate of land which john crisp and alina hele hold, and he gives s. to have a jury, and if he recovers will give s. and the said jurors come and say upon their oath that the said geoffrey has no right in the said land. therefore let the said tenants go thence without day and let the said geoffrey pay s. pledges, hugh bussel and godfrey francis. . juliana saer's daughter demands as her right the moiety of one messuage with a croft, which messuage william snell and goda his wife, sister of the said juliana hold. and they have made accord by leave [of the court] to the effect that the said william and goda give to the said juliana a barn and the curtilage nearest the green and two selions [a ridge of land between two furrows] in the western part of the said croft [a small enclosed field]. and the said william put himself in mercy. fine, d. . hugh of stanbridge complains of gilbert vicar's son and william of stanbridge that the wife of the said gilbert who is of [gilbert's] mainpast and the said william unjustly etc. beat and unlawfully struck him and dragged him by his hair out of his own proper house, to his damage s. and to his dishonor s., and [of this] he produces suit. and gilbert and william come and defend all of it fully. therefore let each of them go to his law six-handed. afterwards they make accord to this effect that in case the said hugh shall hereafter in any manner offend against [gilbert and william] and thereof shall be convicted he will give the lord s. d. by way of penalty and will make amends to [gilbert and william] according to the judgment of six lawful men, and the others on their part will do the like by him. and hugh put himself in mercy. fine, s. pledges, john tailor and walter brother. . breakers of the assize [of beer:] william idle (fined d.), maud carter's widow ( d.), walter carter. . john witriche in mercy for carrying off thorns. fine, d. . robert dochi in mercy (fine, d.) for divers trespasses. pledges, gilbert priest's son, ralph winbold and walter green. . ailwin crisp in mercy for his cow caught in the lord's pasture when ward had been made. fine, d. . john bernard in mercy for his beasts caught by night in the lord's meadow. fine, s. . richard love gives d. to have a jury of twelve touching a rod of land which robert of brockhole and juliana his wife hold. this action is respited to the next court [when the jurors are to come] without further delay. afterwards the jurors come and say upon their oath that the said richard has the greater right in the said land. therefore let him have seisin. . william blackbeard in mercy for not coming with his law as he was bound to do. pledges, geoffrey of wick and geoffrey payn. fine, d. . it was presented that stephen shepherd by night struck his sister with a knife and grievously wounded her. therefore let him be committed to prison. afterwards he made -fine with s. pledge, geoffrey of wick. . it was presented that robert carter's son by night invaded the house of peter burgess and in felony threw stones at his door so that the said peter raised the hue. therefore let the said robert be committed to prison. afterwards he made fine with s. . nicholas drye, henry le notte (fine, d.) and thomas hogue (fine, d.) were convicted for that they by night invaded the house of sir thomas the chaplain and forcibly expelled thence a man and woman who had been taken in there as guests. therefore they are in mercy. pledges of the said thomas, richard of lortemere and jordan of paris. pledges of the said henry, richard pen...and richard butry. . adam moses gives half a sextary of wine to have an inquest as to whether henry ayulf accused him of the crime of larceny and used opprobrious and contumelious words of him. afterwards they made accord and henry finds security for an amercement. fine, d. . isabella sywards in mercy for having sold to richard bodenham land that she could not warrant him. . all the ploughmen of great ogbourne are convicted by the oath of twelve men....because by reason of their default [the land] of the lord was ill ploughed whereby the lord is damaged to the amount of s.... and walter reaper is in mercy for concealing [i.e. not giving information as to] the said bad ploughing. afterwards he made fine with the lord with mark. . from ralph joce s. d. for his son, because he [the son] unlawfully carried off grain from the lord's court. pledge,geoffrey joce. . from henry pink d. for a trespass by waylaying. . from eve corner d. for a trespass of her pigs. . from ralph scales d. for timber carried off. . from william cooper d. for ploughing his own land with the lord's plough without licence. . from hugh newman d. for trespass in the wood. . from richard penant d. for the same. . from helen widow of little ogbourne d. for the same. . from nicholas siward d. for a false complaint against william pafey. . from william pafey d. for fighting with the said nicholas. . from the widow of ralph shepherd d. for a trespass in pencombe. . richard blund gives a half-mark and if he recovers will -give two marks and a half to have a jury of the whole court, to inquire whether he has the greater right in a virgate of land which hugh frith holds in wardship with cristiana daughter of simon white, or the said cristiana. pledges for the fine, richard dene, william hulle, john of senholt, hugh smith, and william ketelburn. and the whole court say upon their oath that the said richard has greater right in the said land than anyone else. therefore let him recover his seisin. -....miller gives d. [the latin translates as s.] for a trespass against the assize of beer and because the lord's grain has been ill kept at the mill. pledges, john orped and joce serjeant. . noah gives s. in the same way for an inquest as to one acre. afterwards they submit themselves to arbitrators, who adjudge that the said robert shall pay s. to the said roger and s. to the said gilbert and s. to the said noah, and that he will do so [robert] finds pledges. . ralph bar in mercy for having beaten one of the lord's men. pledges, herbert rede and ralph brunild. . for the common fine of the township, a half-mark. . john boneffiant found pledges, to wit, william smith and william of bledlow, that he will not eloign himself from the lord's land and that he will be prompt to obey the lord's summons. chapter the times: - king edward i was respected by the people for his good government, practical wisdom, and genuine concern for justice for everyone. he loved his people and wanted them to love him. he came to the throne with twenty years experience governing lesser lands on the continent which were given to him by his father henry iii. he spoke latin, english, and french. he gained a reputation as a lawgiver and as a peacemaker in disputes on the continent. his reputation was so high and agreement on him as the next king so strong that england was peaceful in the almost two years that it took him to arrive there from continental business. he was truthful, law-abiding, and kept his word. he had close and solid family relationships, especially with his father and with his wife eleanor, to whom he was faithful. he was loyal to his close circle of good friends. he valued honor and adhered reasonably well to the terms of the treaties he made. he was generous in carrying out the royal custom of subsidizing the feeding of paupers. he visited the sick. he was frugal and dressed in plain, ordinary clothes rather than extravagant or ostentatious ones. he disliked ceremony and display. at his accession, there was a firm foundation of a national law administered by a centralized judicial system, a centralized executive, and an organized system of local government in close touch with both the judicial and the executive system. to gain knowledge of his nation, he sent royal commissioners into every county to ask about any encroachments on the king's rights and about misdeeds by any of the king's officials: sheriffs, bailiffs, or coroners. the results were compiled as the "hundred rolls". they were the basis of reforms which improved justice at the local as well as the national level. they also rationalized the array of jurisdictions that had grown up with feudal government. statutes were passed by a parliament of two houses, that of peers (lords) and that of an elected [rather than appointed] commons, and the final form of the constitution was fixed. a wife was expected to obey her husband. a husband was deemed the guardian of his wife. if he starved or mistreated her, he was subject to punishment by the church court, even excommunication if necessary. the king's court punished a husband who killed or maimed his wife. the common law as to husband and wife took a final shape with six basic principles: . a husband, but not the wife, could alienate his wife's land during the marriage, but not to take effect after his death, e.g. by will. . a widow was entitled for her life a dower of one-third of any land by her husband. . the husband can take possession of the wife's chattels and can alienate them during his life without her permission. he can sue for all debts due her without her permission. if he survives her, he is entitled to be administrator of her estate. she can make no will without his permission. . the husband can give away all his chattels, except for her necessary clothes and her jewelry and paraphernalia. . the husband is liable for debts incurred or wrongs committed by his wife even before their marriage. . a wife cannot contract on her own behalf, but may purchase on credit certain necessaries and household goods. the church elaborated on these principles with a doctrine for women-covert, i.e. women under the protection or coverture of a husband, and not living separately such as when a man went to sea or to war. she had a right to the necessities of life. her jewelry, but not her apparel, could go to his creditors if his assets didn't cover his debts. the husband also had the right to the rents and profits from his wife's real estate, but not the real estate itself, unless by the birth of a child he became tenant for life by courtesy. only the father, but not the mother had authority over their children. a father had a right to his child's services, and could sue a third party for abducting, enticing away, or injuring the child, just as he could for his servants. a husband was answerable for a wife's torts and trespasses, except for battery. for this reason, he was allowed to chastise her, restrain her liberty for gross misbehavior, and punish her by beating for some misdemeanors. if she was a merchant when she married, she could still sell her goods in the open market. there could be no divorce, but only separation. if separated, she had a right to alimony from him to maintain herself. there were many conveyances of land to husband and wife and their heirs. this created a tenancy by the entirety. this land could not be alienated by only one spouse without the other. on the death of one spouse, the surviving spouse became the sole tenant of the whole. wardships of children and widows were sought because they were very profitable. a guardian could get one tenth of the income of the property during the wardship and a substantial marriage amount when the ward married. parents often made contracts to marry for their young children. this avoided a forced marriage by a ward should the parents die. most earldoms and many baronages came into the royal house by escheat or marriage. the royal house employed many people. the barons developed a class consciousness of aristocracy and became leaders of society. many men, no matter of whom they held land, sought knighthood. the king granted knighthood by placing his sword on the head of able-bodied and moral candidates who swore an oath of loyalty to the king and to defend "all ladies, gentlewomen, widows and orphans" and to "shun no adventure of your person in any war wherein you should happen to be". a code of knightly chivalry became recognized, such as telling the truth and setting wrongs right. about half of the knights were literate. in , the king issued a writ ordering all freeholders who held land of the value of at least s. to receive knighthood at the king's hands. at the royal house and other great houses gentlemanly jousting competitions, with well-refined and specific rules, took the place of violent tournaments with general rules. edward forbade tournaments at which there was danger of a "melee". at these knights competed for the affection of ladies by jousting with each other while the ladies watched. courtly romances were common. if a man convinced a lady to marry him, the marriage ceremony took place in church, with feasting and dancing afterwards. romantic stories were at the height of their popularity. a usual theme was the lonely quest of a knight engaged in adventures which would impress his lady. riddles include: . i will make you a cross, and a thing will not touch you, and you will not be able to leave the house without breaking that cross. answer: stand before a post in your house, with your arms extended. . what you do not know, and i do not know, and no one can know after i have told you. answer: i will take a straw from the floor of the room, measure its inches, tell you the length, and break the straw. . a pear tree bears all the fruit a pear tree can bear and did not bear pears. answer: it bore only one pear. the dress of the higher classes was very changeable and subject to fashion as well as function. ladies no longer braided their hair in long tails, but rolled it up in a net under a veil, often topped with an elaborate and fanciful headdress. they wore non- functional long trains on their tunics and dainty shoes. men wore a long gown, sometimes clasped around the waist. overtunics were often lined or trimmed with native fur such as squirrel. people often wore solid red, blue, or green clothes. only monks and friars wore brown. the introduction of buttons and buttonholes to replace pins and laces made clothing warmer, and it could be made tighter. after edward i established the standard inch as three continuous dried barleycorns, shoes came in standard sizes and with a right one different from a left one. the spinning wheel came into existence to replace the handheld spindle. now one hand could be used to form the thread while the other hand turned a large upright wheel that caused the thread to wind around the spindle, which did not have to be held by hand. this resulted in an uninterrupted spinning motion which was not interrupted by alternately forming the thread and winding it on the spindle. in the s, there were extremes of fashion in men's and women's clothing including tight garments, pendant sleeves down to the ground, coats so short they didn't reach the hips or so long they reached the heels, hoods so small they couldn't cover the head, and shoes with long curved peaks like claws at the toes. both men and women wore belts low on the hips. the skirt of a lady's tunic was fuller and the bodice more closely fitted than before. her hair was usually elaborately done up, e.g. with long curls or curled braids on either side of the face. a jeweled circlet was often worn around her head. ladies wore on their arms or belts, cloth handbags, which usually contained toiletries, such as combs made of ivory, horn, bone, or wood, and perhaps a little book of devotions. a man wore a knife and a bag on his belt. some women painted their faces and/or colored their hair. there were hand- held glass mirrors. some people kept dogs purely as pets. there was a great development of heraldic splendor with for instance, crests, coat-armor, badges, pennons [long, triangular flag], and helmets. they descended through families. not only was it a mark of service to wear the badge of a lord, but lords wore each other's badges by way of compliment. lords surrounded themselves with people of the next lower rank, usually from nearby families, and had large households. for instance, the king had a circle of noblemen and ladies about him. a peer or great prelate had a household of about - people, among which were his inner circle, companions, administrators, secretaries, bodyguards and armed escort, chaplain, singing priests and choirboys, and servants. all officers of the household were gentlemen. the secretary was usually a clerk, who was literate because he had taken minor clerical orders. since the feudal obligation of the tenants was disappearing, a lord sometimes hired retainers to supplement his escort of fighting men. they proudly wore his livery of cloth or hat, which was in the nature of a uniform or badge of service. a nobleman and his lady had a circle of knights and gentlemen and their ladies. a knight had a circle of gentlemen and their ladies. the great barons lived in houses built within the walls of their castles. lesser barons lived in semi-fortified manors, many of which had been licensed to be embattled or crenelated. their halls were two stories high, and usually built on the first rather than on the second floor. windows came down almost to the floor. the hall had a raised floor at one end where the lord and lady and a few others sat at a high table. the hearth was in the middle of the room or on a wall. sometimes a cat was used to open and shut the louvers of the smoke outlet in the roof. the lord's bedroom was next to the hall on the second floor and could have windows into the hall and a spiral staircase connecting the two rooms. there was a chapel, in which the lord attended mass every morning. the many knights usually lived in unfortified houses with two rooms. in the great houses, there were more wall hangings, and ornaments for the tables. the tables were lit with candles or torches made of wax. plates were gold and silver. the lord, his lady, and their family and guests sat at the head table, which was raised on a dais. on this high table was a large and elaborate salt cellar. one's place in relationship to the salt cellar indicated one's status: above or below the salt. also, those of higher status at the table ate a superior bread. the almoner [alms giver] said grace. gentlemen poured the lord's drink [cupbearer], served his meat [carver], and supervised the serving of the food [sewer]. a yeoman ewery washed the hands of the lord and his guests and supplied the napkins, ewers [pitchers], and basins. a yeoman cellarer or butler served the wine and beer. the yeoman of the pantry served the bread, salt, and cutlery. the steward presided over the table of household officers of gentle birth. the marshall of the hall, clerk of the kitchen, or other yeomen officers supervised other tables. salt and spices were available at all tables. most people ate with their fingers, although there were knives and some spoons. drinking vessels were usually metal, horn, or wood. a marshall and ushers kept order. minstrels played musical instruments or recited histories of noble deeds or amusing anecdotes. reading aloud was a favorite pastime. the almoner collected the leftovers to distribute to the poor. in lesser houses people ate off trenchers [a four day old slab of coarse bread or a piece of wood with the middle scooped out like a bowl], or plates of wood or pewter [made from tin, copper, and lead]. they often shared plates and drinking vessels at the table. queen eleanor, a cultivated, intelligent, and educated lady from the continent, fostered culture and rewarded individual literary efforts, such as translations from latin, with grants of her own money. she patronized oxford and cambridge universities and left bequests to poor scholars there. she herself had read aristotle and commentaries thereon, and she especially patronized literature which would give cross-cultural perspectives on subjects. she was kind and thoughtful towards those about her and was also sympathetic to the afflicted and generous to the poor. she shared edward's career to a remarkable extent, even accompanying him on a crusade. she had an intimate knowledge of the people in edward's official circle and relied on the advice of two of them in managing her lands. she mediated disputes between earls and other nobility, as well as softened her husband's temper towards people. edward granted her many wardships and marriages and she arranged marriages with political advantages. she dealt with envoys coming to the court. her intellectual vitality and organized mentality allowed her to deal with arising situations well. edward held her in great esteem. she introduced to england the merino sheep, which, when bred with the english sheep, gave them a better quality of wool. she and edward often played games of chess and backgammon. farm efficiency was increased by the use of windmills in the fields to pump water and by allowing villeins their freedom and hiring them as laborers only when needed. customary service was virtually extinct. a man could earn d. for reaping, binding, and shocking into a pile, an acre of wheat. a strong man with a wife to do the binding could do this in a long harvest day. harvests were usually plentiful, with the exception of two periods of famine over the country due to weather conditions. then the price of wheat went way up and drove up the prices of all other goods correspondingly. the story of outlaw robin hood, who made a living by robbing, was passed around. this robin hood did not give to the poor. but generally, there was enough grain to store so that the population was no longer periodically devastated by famine. the population grew and all arable land in the nation came under the plough. the acre was standardized. about , the price of an ox was s., a heifer or cow s., a hide s. d., a cart horse or pounds. farm women went to nearby towns to sell eggs and dairy products, usually to town women. although manors needed the ploughmen, the carters and drivers, the herdsmen, and the dairymaid on a full-time basis, other tenants spent increasing time in crafts and became village carpenters, smiths, weavers or millers' assistants. trade and the towns grew. smiths used coal in their furnaces. money rents often replaced service due to a lord, such as fish silver, malt silver, or barley silver. the lord's rights are being limited to the rights declared on the extents [records showing service due from each tenant] and the rolls of the manor. sometimes land is granted to strangers because none of the kindred of the deceased will take it. often a manor court limited a fee in land to certain issue instead of being inheritable by all heirs. surveyors' poles marked boundaries declared by court in boundary disputes. this resulted in survey maps showing villages and cow pastures. the revival of trade and the appearance of a money economy was undermining the long-established relationship between the lord of the manor and his villeins. as a result, money payments were supplementing or replacing payments in service and produce as in martham, where thomas knight held twelve acres in villeinage, paid d. for it and d. in special aids. "he shall do sixteen working days in august and for every day he shall have one repast - viz. bread and fish. he shall hoe ten days without the lord's food - price of a day / d. he shall cart to norwich six cartings or shall give d., and he shall have for every carting one leaf and one lagena - or gallon - of ale. also for ditching d. he shall make malt / seams of barley or shall give d. also he shall flail for twelve days or give d. he shall plough if he has his own plough, and for every ploughing he shall have three loaves and nine herrings ... for carting manure he shall give ." another example is this manor's holdings, when d. would buy food for a day: "extent of the manor of bernehorne, made on wednesday following the feast of st. gregory the pope, in the thirty-fifth year of the reign of king edward, in the presence of brother thomas, keeper of marley, john de la more, and adam de thruhlegh, clerks, on the oath of william de gocecoumbe, walter le parker, richard le knyst, richard the son of the latter, andrew of estone, stephen morsprich, thomas brembel, william of swynham, john pollard, roger le glide, john syward, and john de lillingewist, who say that there are all the following holdings:... john pollard holds a half acre in aldithewisse and owes d. at the four terms, and owes for it relief and heriot. john suthinton holds a house and acres of land and owes s. d. at easter and michaelmas. william of swynham holds one acre of meadow in the thicket of swynham and owes d. at the feast of michaelmas. ralph of leybourne holds a cottage and one acre of land in pinden and owes s. at easter and michaelmas, and attendance at the court in the manor every three weeks, also relief and heriot. richard knyst of swynham holds two acres and a half of land and owes yearly s. william of knelle holds two acres of land in aldithewisse and owes yearly s. roger le glede holds a cottage and three roods of land and owes s. d. easter and michaelmas. alexander hamound holds a little piece of land near aldewisse and owes one goose of the value of d. the sum of the whole rent of the free tenants, with the value of the goose, is s. d. they say, moreover, that john of cayworth holds a house and acres of land, and owes yearly s. at easter and michaelmas; and he owes a cock and two hens at christmas of the value of d. and he ought to harrow for two days at the lenten sowing with one man and his own horse and his own harrow, the value of the work being d.; and he is to receive from the lord on each day three meals, of the value of d., and then the lord will be at a loss of d. thus his harrowing is of no value to the service of the lord. and he ought to carry the manure of the lord for two days with one cart, with his own two oxen, the value of the work being d.; and he is to receive from the lord each day three meals at the value as above. and thus the service is worth d. clear. and he shall find one man for two days, for mowing the meadow of the lord, who can mow, by estimation, one acre and a half, the value of the mowing of an acre being d.: the sum is therefore d. and he is to receive each day three meals of the value given above. and thus that mowing is worth d. clear. and he ought to gather and carry that same hay which he has cut, the price of the work being d. and he shall have from the lord two meals for one man, of the value of / d. thus the work will be worth / d. clear. and he ought to carry the hay of the lord for one day with a cart and three animals of his own, the price of the work being d. and he shall have from the lord three meals of the value of / d. and thus the work is worth / d. clear. and he ought to carry in autumn beans or oats for two days with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the value given above. and thus the work is worth d. clear. and he ought to carry wood from the woods of the lord as far as the manor, for two days in summer, with a cart and three animals of his own, the value of the work being d. and he shall receive from the lord each day three meals of the price given above. and thus the work is worth d. clear. and he ought to find one man for two days to cut heath, the value of the work being d., and he shall have three meals each day of the value given above: and thus the lord will lose, if he receives the service, d. thus that mowing is worth nothing to the service of the lord. and he ought to carry the heath which he has cut, the value of the work being d. and he shall receive from the lord three meals at the price of / d. and thus the work will be worth / d. clear. and he ought to carry to battle, twice in the summer season, each time half a load of grain, the value of the service being d. and he shall receive in the manor each time one meal of the value of d. and thus the work is worth d. clear. the totals of the rents, with the value of the hens, is s. d. the total of the value of the works is s. / d., being owed from the said john yearly. william of cayworth holds a house and acres of land and owes at easter and michaelmas s. rent. and he shall do all customs just as the aforesaid john of cayworth. william atte grene holds a house and acres of land and owes in all things the same as the said john. alan atte felde holds a house and acres of land (for which the sergeant pays to the court of bixley s.), and he owes at easter and michaelmas s., attendance at the manor court, relief, and heriot. john lyllingwyst holds a house and four acres of land and owes at the two terms s., attendance at the manor court, relief, and heriot. the same john holds one acre of land in the fields of hoo and owes at the two periods s., attendance, relief, and heriot. reginald atte denne holds a house and acres of land and owes at the said periods d., attendance, relief, and heriot. robert of northehou holds three acres of land at saltcote and owes at the said periods attendance, relief, and heriot. total of the rents of the villeins, with the value of the hens, s. total of all the works of these villeins, s. / d. and it is to be noted that none of the above-mentioned villeins can give their daughters in marriage, nor cause their sons to be tonsured, nor can they cut down timber growing on the lands they hold, without licence of the bailiff or sergeant of the lord, and then for building purposes and not otherwise. and after the death of any one of the aforesaid villeins, the lord shall have as a heriot his best animal, if he had any; if, however, he have no living beast, the lord shall have no heriot, as they say. the sons or daughters of the aforesaid villeins shall give, for entrance into the holding after the death of their predecessors, as much as they give of rent per year. sylvester, the priest, holds one acre of meadow adjacent to his house and owes yearly s. total of the rent of tenants for life, s. petronilla atte holme holds a cottage and a piece of land and owes at easter and michaelmas - ; also, attendance, relief, and heriot. walter herying holds a cottage and a piece of land and owes at easter and michaelmas d., attendance, relief, and heriot. isabella mariner holds a cottage and owes at the feast of st. michael d., attendance, relief, and heriot. jordan atte melle holds a cottage and / acres of land and owes at easter and michaelmas s., attendance, relief, and heriot. william of batelesmere holds one acre of land with a cottage and owes at the feast of st. michael d., and one cock and one hen at christmas of the value of d., attendance, relief, and heriot. john le man holds half an acre of land with a cottage and owes at the feast of st. michael s., attendance, relief, and heriot. hohn werthe holds one rood of land with a cottage and owes at the said term d., attendance, relief, and heriot. geoffrey caumbreis holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. william hassok holds one rood of land and a cottage and owes at the said term d., attendance, relief, and heriot. the same man holds / acres of land and owes yearly at the feast of st. michael s. for all. roger doget holds half an acre of land and a cottage, which were those of r. the miller, and owes at the feast of st. michael d., attendance, relief, and heriot. thomas le brod holds one acre and a cottage and owes at the said term s., attendance, relief, and heriot. agnes of cayworth holds half an acre and a cottage and owes at the said term d., attendance, relief, and heriot. total of the rents of the said cottagers, with the value of the hens, s. d. and it is to be noted that all the said cottagers shall do as regards giving their daughters in marriage, having their sons tonsured, cutting down timber, paying heriot, and giving fines for entrance, just as john of cayworth and the rest of the villeins above mentioned." the above fines and penalties, with heriots and reliefs, are worth s. yearly. often one village was divided up among two or more manors, so different manorial customs made living conditions different among the villagers. villages usually had carpenters, smiths, saddlers, thatchers, carters, fullers, dyers, soapmakers, tanners, needlers, and brassworkers. each villein had his own garden in which to grow fruit and vegetables next to his house, a pig (which fattened more quickly than other animals), strips in the common field, and sometimes an assart [a few acres of his own to cultivate as he pleased on originally rough uncultivated waste land beyond the common fields and the enclosed common pastures and meadows]. most villeins did not venture beyond their village except for about ten miles to a local shrine or great fair a couple times a year. at the fair might be fish, honey, spices, salt, garlic, oil, furs, silks, canvas, soap, pans, pots, grindstones, coal, nails, tar, iron, shovels, brushes, pails, horses, and packsaddles. early apothecaries might sell potions there. men and women looking for other employment might attend to indicate their availability. under edward i, villages were required to mount watches to protect life and property and were called upon to provide one man for the army and to pay his wages. people told time by counting the number of rings of the church bell, which rang on the hour. every sunday, the villagers went to church, which was typically the most elaborate and centrally located building in the village. the parishioners elected churchwardens, who might be women. this religion brought comfort and hope of going to heaven, rather than hell, after judgment by god at death if sin was avoided or forgiven. on festival days, bible stories, legends, and lives of saints were read or performed as miracle dramas. they learned to avoid the devil, who was influential in lonely places like forests and high mountains. at death, the corpse was washed, shrouded, and put into a rectangular coffin with a cross on its lid. priests sang prayers amid burning incense for the deliverance of the soul to god while interring the coffin into the ground. men who did not make a will risked the danger of an intestate and unconfessed death. the personal property of a man dying intestate now went to the church as a trust for the dead man's imperiled soul instead of to the man's lord. unqualified persons entered holy orders thereby obtaining "benefit of clergy", and then returned to secular employments retaining this protection. a villein could be forever set free from servitude by his lord as in this example: "to all the faithful of christ to whom the present writing shall come, richard, by the divine permission, abbot of peterborough and of the convent of the same place, eternal greeting in the lord: let all know that we have manumitted and liberated from all yoke of servitude william, the son of richard of wythington, whom previously we have held as our born bondman, with his whole progeny and all his chattels, so that neither we nor our successors shall be able to require or exact any right or claim in the said william, his progeny, or his chattels. but the same william, with his whole progeny and all his chattels, shall remain free and quit and without disturbance, exaction, or any claim on the part of us or our successors by reason of any servitude forever. we will, moreover, and concede that he and his heirs shall hold the messuages, land, rents, and meadows in wythington which his ancestors held from us and our predecessors, by giving and performing the fine which is called merchet for giving his daughter in marriage, and tallage from year to year according to our will, - that he shall have and hold these for the future from us and our successors freely, quietly, peacefully, and hereditarily, by paying to us and our successors yearly s. sterling, at the four terms of the year, namely: at st. john the baptist's day s., at michaelmas s., at christmas s., and at easter s., for all service, exaction, custom, and secular demand; saving to us, nevertheless, attendance at our court of castre every three weeks, wardship, and relief, and outside service of our lord the king, when they shall happen. and if it shall happen that the said william or his heirs shall die at any time without an heir, the said messuage, land rents, and meadows with their appurtenances shall return fully and completely to us and our successors. nor will it be allowed to the said william or his heirs to give, sell, alienate, mortgage, or encumber in any way, the said messuage, land, rents, and meadows, or any part of them, by which the said messuage, land, rents, and meadows should not return to us and our successors in the form declared above. and if this should occur later, their deed shall be declared null, and what is thus alienated shall come to us and our successors... given at borough, for the love of lord robert of good memory, once abbot, our predecessor and maternal uncle of the said william, and at the instance of the good man, brother hugh of mutton, relative of the said abbot robert, a.d. , on the eve of pentecost." villeins who were released from the manorial organization by commutation of their service for a money payment took the name of their craft as part of their name, such as, for the manufacture of textiles, weaver, draper, comber, fuller, napper, cissor, tailor, textor; for metalwork, faber, ironmonger; for leatherwork, tanner; for woodwork, building and carpentry, carpenter, cooper, mason, pictor; for food production, baker, pistor. iron, tin, lead, salt, and even coal were providing increasing numbers of people with a livelihood. many new boroughs were founded as grants of market rights by the king grew in number. these grants implied the advantage of the king's protection. in fact, one flooded town was replaced with a new town planned with square blocks. it was the charter which distinguished the borough community from the other communities existing in the country. it invested each borough with a distinct character. the privileges which the charter conferred were different in different places. it might give trading privileges: freedom from toll, a guild merchant, a right to hold a fair. it might give jurisdictional privileges: a right to hold court with greater or less franchises. it might give governmental privileges: freedom from the burden of attending the hundred and county courts, the return of writs, which meant the right to exclude the royal officials, the right to take the profits of the borough, paying for them a fixed sum to the crown or other lord of the borough, the right to elect their own officials rather than them being appointed by the king or a lord, and the right to provide for the government of the borough. it might give tenurial privileges: the power to make a will of lands, or freedom from the right of a lord to control his tenants' marriages. it might give procedural privileges: trial by combat is excluded, and trial by compurgation is secured and regulated. these medieval borough charters are very varied, and represent all stages of development and all grades of franchise. boroughs bought increasing rights and freedoms from their lord, who was usually the king. in the larger towns, where cathedrals and public building were built, there arose a system for teaching these technical skills and elaborate handicraft, wood, metal, stained glass, and stone work. a boy from the town would be bound over in apprenticeship to a particular craftsman, who supplied him with board and clothing. the craftsman might also employ men for just a day. these journeymen were not part of the craftsman's household as was the apprentice. after a few years of an apprenticeship, one became a journeyman and perfected his knowledge of his craft and its standards by seeing different methods and results in various towns. he was admitted as a master of his trade to a guild upon presenting an article of his work worthy of that guild's standard of workmanship: his "masterpiece". women, usually wives of brethren only, could be admitted. the tailors' guild and the skinners' guild are extant now. when guilds performed morality plays based on bible stories at town festivals, there was usually a tie between the bible story and the guild's craft. for instance, the story of the loaves and fishes would be performed by the bakers' or fishmongers' guild. the theme of the morality play was the fight of the seven cardinal virtues against the seven deadly sins for the human soul, a life- long battle. the number seven was thought to have sacred power; there were seven sacraments, seven churches in the biblical apocalypse, seven liberal arts and seven devilish arts. the seven sacraments were: baptism, confirmation, lord's supper, penance, orders, matrimony, and extreme unction. a borough was run by a mayor elected usually for life. by being members of a guild, merchant-traders and craftsmen acquired the legal status of burgesses and had the freedom of the borough. each guild occupied a certain ward of the town headed by an alderman. the town aldermen, who were unpaid, made up the town council, which advised the mayor. the mayor of london received pounds for hospitality, but in small towns, s. sufficed. often there were town police, bailiffs, beadles [messengers], a town crier, and a town clerk. london offices included recorder, prosecutor, common sergeant, and attorneys. in the center of town were the fine stone houses, a guildhall with a belfry tower, and the marketplace - a square or broad street, where the town crier made public announcements with bell or horn. here too was the ducking stool for scandalmongers and the stocks which held offenders by their legs and perhaps their hands to be scorned and pelted by bystanders with, for instance, rotten fruit and filth. no longer were towns dominated by the local landholders. in london there were royal princes, great earls, barons, knights, and female representatives of the peerage (counted in ). there was a wall with four towers surrounding the white tower, and this castle was known as the tower of london. another wall and a moat were built around it and it has reached its final form. hovels, shops, and waste patches alternated with high walls and imposing gateways protecting mansions. the mansions had orchards, gardens, stables, brewhouses, bakeries, guardrooms, and chapels. london streets were paved with cobbles and sand. each citizen was to keep the street in front of his tenement in good repair. later, each alderman appointed four reputable men to repair and clean the streets for wages. the repair of bishopsgate was the responsibility of the bishop because he received one stick from every cart of firewood passing through it. rules as to tiled roofs were enforced. a ordinance required all taverns to close at curfew, an hour that fluctuated. prostitutes were expelled from the city because the street with their bawdy houses had become very noisy. women huckster-retailers, nurses, servants, and loose women were limited to wearing hoods furred with lambskin or rabbitskin and forbidden to wear hoods furred with vair or miniver [grey or white squirrel] in the guise of good ladies. an infirmary for the blind was founded by a mercer, who became its first prior. the london mayoral elections were hotly fought over until in , when the aldermen began to act with the aid of an elected council in each of the twenty-four wards, which decentralized the government of the city. each ward chose certain of its inhabitants to be councilors to the aldermen. this council was to be consulted by him and its advice to be followed. in , the aldermen for the first time included a fishmonger. the fishmongers were the only guild at this time, besides the weavers, which had acquired independent jurisdiction by the transfer of control of their weekly hallmote from a public official to themselves. craftsmen began to take other public offices too. by the reign of edward ii, all the citizens were obliged to be enrolled among the trade guilds. a great quarrel between the weaver's guild and the magistracy began the control of the city by the craft guilds or city companies. admission to freedom of the city [citizenship] was controlled by the citizens, who decided that no man of english birth, and especially no english merchant, who followed any specific mistery [french word for a calling or trade] or craft, was to be admitted to the freedom of the city except on the security of six reputable men of that mistery or craft. no longer could one simply purchase citizenship. apprentices had to finish their terms before such admission, and often could not afford the citizenship fee imposed on them. only freemen could sell wares in the city, a custom of at least two hundred years. as economic activity in london became more complex and on a larger scale in the s, some craftsmen were brought under the control of other crafts or merchants. the bakers fell under the control of the wholesale grain dealers; the weavers became pieceworkers for rich cloth merchants; the blademakers and shearers were employed by cutlers; coppersmiths were controlled by girdlers; fullers were controlled by entrepreneurial dyers; and the painters, joiners, and lorimers were controlled by the saddlers. guilds moved their meeting places from churches, which were now too small, to guild halls. the controlling officers of the large guilds met at the guildhall, which became the seat of mayoral authority. london streets in existence by this time include cordwainer, silver, cannon (candlewick), and roper. lanes included ironmonger, soper, spurrier, lad (ladles), distaff, needles, mede, limeburner, and hosier. fighting among groups was common in london. there was a street fight on a large scale in between the saddlers and a coalition of joiners, painters, and lorimers (makers of metal work of saddles). much blood was shed in the street battle between the skinners and the fishmongers in . there was a city ordinance that no one except royal attendants, baronial valets, and city officials were to go about armed. disputes among neighbors that were brought to court included the use and upkeep of party walls, blocked and overflowing gutters, cesspits too close to a neighbor's property, noisy tenants, loss of light, and dangerous or overhanging structures. in , a goldsmith was chief assay-master of the king's mint and keeper of the exchange at london. the king gave the goldsmiths' company the right of assay [determination of the quantity of gold or silver in an object] and required that no vessels of gold or silver should leave the maker's hands until they had been tested by the wardens and stamped appropriately. in , goldsmith william farrington bought the soke of the ward containing the goldsmiths' shops. it remained in his family for years. a patent of empowered the guild to elect a properly qualified governing body to superintend its affairs, and reform subjects of just complaint. it also prescribed, as a safeguard against a prevailing fraud and abuse, that all members of the trade should have their standing in cheapside or in the king's exchange, and that no gold or silver should be manufactured for export, except that which had been bought at the exchange or of the trade openly. some prices in london were: large wooden bedstead s., a small bedstead s., a large chest for household items s., feather beds - s., a table s., a chair - d., cloth gown lined with fur - s., plain coats and overcoats - s., caps - d., a pair of pen- cases with inkhorn d., a skin of parchment d., sheets of paper d, a carcass of beef s., a pig s., a swan s., and a pheasant s. there was a problem with malefactors committing offenses in london and avoiding its jurisdiction by escaping to southwark across the thames. so southwark was given a royal charter which put it under the jurisdiction of london for peace and order matters and allowed london to appoint its tax collector. london forbade games being played because they had replaced practice in archery, which was necessary for defense. a royal inquiry into the state of the currency indicated much falsification and coin-clipping by the jews and others. about jews and many englishmen were found guilty and hanged. the rest of the jews, about , , were expelled in . this was popular with the public because of the abuses of usury. there had been outbreaks of violence directed at the jews since about . the king used italian bankers instead because he thought them more equitable in their dealings. the lepers were driven out of london in . exports and imports were no longer a tiny margin in an economy just above the subsistence level. exports were primarily raw wool and cloth, but also grain, butter, eggs, herring, hides, leather goods such as bottles and boots, embroideries, metalware, horseshoes, daggers, tin, coal, and lead. imported were wine, silk, timber, furs, rubies, emeralds, fruits, raisins, currents, pepper, ginger, cloves, rice, cordovan leather, pitch, hemp, spars, fine iron, short rods of steel, bow-staves of yew, tar, oil, salt, cotton (for candlewicks), and alum (makes dyes hold). ships which transported them had one or two masts upon which sails could be furled, the recently invented rudder, and a carrying capacity of up to tuns [about one ton]. many duties of sheriffs and coroners were transferred to county landholders by commissions. in coastal counties, there were such commissions for supervising coastal defense and maintaining the beacons. each maritime county maintained a coast guard, which was under the command of a knight. ports had well-maintained harbors, quays, and streets. by there was an office of admiral of the fleet of the ships of the southern ports. women could inherit land in certain circumstances. some tenants holding land in chief of the king were women. regulation of trade became national instead of local. trade was relatively free; almost the only internal transportation tolls were petty portages and viages levied to recoup the expense of a bridge or road which had been built by private enterprise. responsibility for the coinage was transferred from the individual moneyers working in different boroughs to a central official who was to become master of the mint. the round half penny and farthing [ / penny] were created so that the penny needn't be cut into halves and quarters anymore. edward i called meetings of representatives from all social and geographic sectors of the nation at one parliament to determine taxes due to the crown that would replace feudal aids. he declared that "what touches all, should be approved by all". he wanted taxes from the burgesses in the towns and the clergy's ecclesiastical property as well as from landholders. he argued to the clergy that if barons had to both fight and pay, they who could do no fighting must at least pay. when the clergy refused to pay, he put them outside the royal protection and threatened outlawry and confiscation of their lands. then they agreed to pay and to renounce all papal orders contrary to the king's authority. edward i wanted to bring all his subjects undder hisimmediate aujthority by the process of bringing all together to the same assembly under his common presidency. so his model parliament of was composed of the three communities. the first were the lords, which included seven earls and forty-one barons. because of the increase of lesser barons due to a long national peace and prosperity, the lords attending were reduced in numbers and peerage became dependent not on land tenure, but on royal writ of summons. the great barons were chosen by the king and received a special summons in their own names to the council or parliament. others were called by a general summons. the second community was the clergy, represented by the two archbishops, bishops from each of eighteen dioceses, and sixty-seven abbots. the third community was the commons. it was composed of two knights elected by the suitors who were then present at the county court, two burgesses elected by principal burgesses of each borough, and two representatives from each city. the country knights had a natural affinity with the towns in part because their younger sons sought their occupation, wife, and estate there. also, great lords recruited younger brothers of yeoman families for servants and fighting men, who ultimately settled down as tradesmen in the towns. the country people and the town people also had a community of interest by both being encompassed by the county courts. the peasants were not represented in the county courts nor in parliament. one had to have land to be entitled to vote in parliament because the landowner had a stake in the country, a material security for his good behavior. parliaments without knights and burgesses still met with the king. but it was understood that no extraordinary tax could be levied without the knights and burgesses present. ordinary taxes could be arranged with individuals, estates, or communities. the lower clergy ceased to attend parliament and instead considered taxes to pay to the king during their national church convocations, which were held at the same time as parliament. for collection purposes, their diocesan synod was analogous to the county court. the higher clergy remained in parliament because they were feudal vassals of the king. edward's council was the highest tribunal. it comprised the chancellor, treasurer and other great officers of state, the justices of the three courts, the master or chief clerks of the chancery, and certain selected prelates and barons. the council assisted the king in considering petitions. most petitions to the king were private grievances of individuals, including people of no social rank, such as prisoners. other petitions were from communities and groups, such as religious houses, the two universities, boroughs, and counties. these groups sometimes formed alliances in a common cause. women sometimes petitioned. from , the petitions were placed in four stacks for examination by the king and council, by the chancery, by the exchequer, or by the justices. many hours were spent hearing and answering petitions. from , the petitions were presented to the king in full parliament. the king still exercised a power of legislation without a full parliament. he might in his council issue proclamations. the chief justices still had, as members of the king's council, a real voice in the making of laws. the king and his justices might, after a statute has been made, put an authoritative interpretation upon it. royal proclamations had the same force as statutes while the king lived; sometimes there were demands that certain proclamations be made perpetual by being embodied in statutes, e.g. fixing wages. there was no convention that agreement or even the presence of representatives was required for legislation. the idea that the present can bind the absent and that the majority of those present may outvote the minority was beginning to take hold. edward i's councilors and justices took an oath to give, expedite, and execute faithful counsel; to maintain, recover, increase, and prevent the diminution of, royal rights; to do justice, honestly and unsparingly; to join in no engagements which may present the councilor from fulfilling his promise; and to take no gifts in the administration of justice, save meat and drink for the day. these were in addition to other matters sworn to by the councilors. parliament soon was required to meet at least once a year at the great hall at westminster located beside the royal palace. london paid its representatives s. per day for their attendance at parliament. from the time of edward ii, the counties paid their knight- representatives s. daily, and the boroughs paid their burgess- representatives s. daily. when it convened, the chancellor sat on the left and the archbishop of canterbury on the right of the king. just below and in front of the king his council sits on wool sacks brought in for their comfort from wool stored nearby. it answers questions. behind them on the wool sacks sit the justices, who may be called upon to give legal advice, e.g. in framing statutes. then come the spiritual and lay barons, then the knights, and lastly the elected burgesses and citizens. lawmaking became a function of parliament, of which the king's council is a part, instead of a function of the king with his council and justices. the common people now had a voice in lawmaking, though legislation could be passed without their consent. the first legislation proposed by the commons was alteration of the forest laws governing the royal pleasure parks. such a statute was passed in a bargain for taxes of a percentage of all movables, which were mostly foodstuffs and animals. the king offered to give up the royal right to tax merchandise for a new tax: customs on exports. the barons and knights of the county agreed to pay an th, the burgesses, a th, and the clergy a th on their other movables. in time, several boroughs sought to be included in the county representation so they could pay the lower rate. this new system of taxation began the decline of the imposition of feudal aids, knights' fees, scutages, carucage, and tallage, which had been negotiated by the exchequer with the reeves of each town, the sheriff and county courts of each county, and the bishops of each diocese. the staple [depot or mart, from the french "estaple"] system began when the export of wool had increased and parliament initiated customs duties of s. d. on every sack of wool, woolfells [sheepskin with wool still on it], or skins exported in . these goods had to be assessed and collected at certain designated ports. certain large wool merchants, the merchants of the staple, were allowed to have a monopoly on the purchase and export of wool. imports of wine were taxed as tunnage as before, that is there was a royal right to take from each wine ship one cask for every ten at the price of s. per cask. in , edward i confirmed the magna carta and other items. judgments contrary to magna carta were nullified. the documents were to be read in cathedral churches as grants of edward and all violators were to be excommunicated. he also agreed not to impose taxes without the consent of parliament after baronial pressure had forced him to retreat from trying to increase, for a war in france, the customs tax on every exported sack of wool to s. from the s. d. per sack it had been since . the customs tax was finally fixed at s. for every sack of wool, s. for each tun [casket] of wine, and d. for every pound's worth of other goods. the "tenths and fifteenths" tax levied on income from movables or chattels became regular every year. edward also confirmed the forest charter, which called for its earlier boundaries. and he agreed not to impound any grain or wool or and like against the will of the owners, as had been done before to collect taxes. also, the special prises or requisitions of goods for national emergency were not to be a precedent. lastly, he agreed not to impose penalties on two earls and their supporters for refusing to serve in the war in france when the king did not go. the magna carta is the first statute. from , statutes were recorded in a statute roll as they were enacted. by the end of the s, the king's wardrobe, where confidential matters such as military affairs were discussed in his bedroom, became a department of state with the king's privy seal. the keeper of the privy seal was established as a new office by edward i in . the wardrobe paid and provisioned the knights, squires, and sergeants of the king and was composed mostly of civil servants. it traveled with the king. the crown's treasure, plate, tents, hangings, beds, cooking utensils, wine, and legal and financial rolls were carried on pack horses or in two-wheeled carts drawn by oxen, donkeys, or dogs. the people in the entourage rode horses or walked. the other two specialized administrative bodies were the exchequer, which received most of the royal revenue and kept accounts at westminster, and the chancery, which wrote royal writs, charters, and letters, and kept records. the chief functions of administration in the s were performed by the council, chancery, wardrobe, chamber [room off wardrobe for dressing and for storage], and exchequer. many of the chancellors had come from the wardrobe and chamber. in time, the chancellor ceased to be a part of the king's personal retinue and to follow the court. the chancery became primarily a department of central administration rather than a secretariat and record-keeping part of the royal household. the king used a privy seal to issue directives to the chancery. edward iii made some merchants earls and appointed them to be his ministers. he did not summon anyone to his council who did not have the confidence of the magnates [barons, earls, bishops, and abbots]. there was a recoinage due to debasement of the old coinage. this increased the number of coins in circulation. the price of wheat went from about s. in to about s. per quarter in . also the price of an ox went from s. to s. then there were broad movements of prices, within which there were wide fluctuations, largely due to the state of the harvest. from to , there was runaway inflation. in some places, both grain and livestock prices almost doubled between and . wheat prices peaked at s. d. a quarter in the famine year of . in , prices dropped and remained low for twenty years. the poor were hurt by high prices and the lords of the manors were hurt by low prices. as before, inadequate care and ignorance of nutrition caused many infant deaths. accidents and disease were so prevalent that death was always near and life insecure. many women died in childbirth. edward i always sought the agreement of parliament before assembling an army or taking actions of war, and parliamentary consent came to be expected for such. he completed the conquest and annexation of wales in . the feudal army was summoned for the last time in the year war with france, which began in . in it the english longbow was used to pierce french knights' armor. there had been much competition between the strength of arrows to pierce and the heaviness of armor to resist. guns and cannon with gunpowder were introduced in . a system to raise an army by contract was developed. contracts were made with nobles, knights, or esquires who undertook to enlist an agreed number of armored men-at-arms and archers, who were paid wages. the king provided transport for each contractor and his retinue, baggage, and horses. the title of "knight" now resumed its military character as well as being a social rank. after edward i died in , there was a period of general lawlessness and contests for power between earls and barons and the irresponsible king edward ii, who was not a warrior king. he eventually was assassinated. also in , parliament required the king to obtain its consent for any exchange or alteration of the currency. by , the guilds of london had become so powerful that they extracted a charter from the king that to be a citizen of london one had to be a member of a guild. by , scholars, the nobility, and the clergy had reading eyeglasses, which had been invented in italy, probably by the glass blowers. italy was famous for its glasswork. the first eyeglasses were fabricated by pouring molten glass into curved molds. the actual shape was difficult to control because thermal expansion and contraction resulted in bubbles and other optical imperfections. as of , importing foreign cloth or fur, except for use by the king's family, was prohibited, as was the export of unwoven wool. later, this was relaxed and a customs tax of % was imposed on wool exported. foreign cloth workers were allowed by statute to come to live in the nation, be granted franchises, and be in the king's protection. but no cloth was to be exported until it was fulled. during the reign of edward iii, flanders weavers were encouraged to come to england to teach the english how to weave and finish fine cloth. a cloth industry grew with all the manufacturing processes under the supervision of one capitalist manufacturer, who set up his enterprise in the country to avoid the regulations of the towns. the best places were hilly areas where there were many streams and good pasture for flocks of sheep. he hired shearers to cut the nap as short as possible to give a smooth surface, then spinsters to card and spin the wool in their country cottages, then weavers, and then fullers and dyers to come to fulling mills established near streams for their waterpower. fulling became mechanized as heavy wooden hammers run by water- power replaced feet trampling the cloth covered with soap or fuller's clay. the shaft loom was a technological advance in weaving. this loom was horizontal and its frames, which controlled the lifting of the warp threads, could each be raised by a foot treadle. this left both hands free to throw and catch the shuttle attached to the weft thread from side to side through the warp. also many more weaving patterns became possible through the use of different thread configurations on the frames. in , the commons forced king edward iii and council to approve their petition when parliament was still in session so that they would draft the legislation in true accordance with the petition. this had not been done when drafting had been done after parliament ended, when the phrase "saving the prerogatives of the king" was often added. also the lords and commons consulted each other and joined in petitions. but they usually stated their conclusions to the king separately. it was considered a burden rather than a privilege to attend parliament and elections for such were not often contested. they were conducted according to local custom until . in , the commons voted a tax of / th on movables for three years with the proviso that it be spent only on the war against scotland. this began the practice of appropriation of funds. in , began the practice of appointing treasurers of the subsidies to account to parliament for both receipts and disbursements. alien merchants were under the king's special protection. in return for paying extra import and export duties, edward iii gave alien merchants full rights of trade, travel, and residence in england free of all local tolls and restrictions, and guaranteed a fair hearing of their commercial and criminal cases in special pie powder (after french "pie poudrous" or dusty feet) courts at fairs. the law edward i remodeled the law in response to grievances and to problems which came up in the courts. the changes improved the efficiency of justice and served to accommodate it to the changing circumstances of the social system. "no man by force of arms, malice or menacing shall disturb anyone in making free election [of sheriffs, coroners, conservators of the peace by freeholders of the county]." "no city, borough, town, nor man shall be amerced without reasonable cause and according to the severity of his trespass. that is, every freeman saving his freehold, a merchant saving his merchandise, a villein saving his wainage [implements of agriculture], and that by his peers." no distress shall be taken of ploughing-cattle or sheep. no loan shall be made for interest. if an heir who is a minor is married off without the consent of the guardian, the value of the marriage will be lost and the wrongdoer imprisoned. if anyone marries off an heir over years of age without the consent of the guardian, the guardian shall have double the value of the marriage. moreover, anyone who has withdrawn a marriage shall pay the full value thereof to the guardian for the trespass and make amends to the king. and if a lord refuses to marry off a female heir of full age and keep her unmarried because he covets the land, then he shall not have her lands more than two years after she reaches full age, at which time she can recover her inheritance without giving anything for the wardship or her marriage. however, if she maliciously refuses to be married by her lord, he may hold her land and inheritance until she is the age of a male heir, that is, years old and further until he has taken the value of the marriage. aid to make one's son a knight or marry off his daughter of a whole knight's fee shall be taken s., and s. [yearly income from] land held in socage s. [ %], and of more, more; and of less, less; after the rate. and none shall levy such aid to make his son a knight until his son is years old, nor to marry his daughter until she is seven year old. the common law of inheritance for land has assumed its final form with six rules. ) a living descendant excludes his or her own descendants. ) a dead descendant is represented by his or her own descendants. ) males exclude females of equal degree. ) among males of equal degree, only the eldest inherits. ) the rule that a dead descendant is represented by his or her descendants overrides the preference for the male sex. if there were no descendants, the land escheated to its lord. by statute, a conveyance of land which is the inheritance of a minor child by his guardian or lord to another is void. dower shall not abate because the widow has received dower of another man unless part of the first dower received was of the same tenant and in the same town. but a woman who leaves her husband for another man is barred from dower. a tenant for a term of years who has let land from a landlord shall not let it lie waste, nor shall a landlord attempt to oust a tenant for a term of years by fictitious recoveries. when two or more hold wood, turfland, or fishing or other such thing in common, wherein none knows his several, and one does waste against the minds of the others, he may be sued. lands which are given to a man and his wife upon condition that if they die without heirs, the land shall revert to the donor or his heir, may not be alienated to defeat this condition. if a man takes land in marriage with a wife, and she dies before him, the land will revert to the donor or his heir, unless the couple has a child, in which case the husband will have the land by the courtesy of the nation for his life before it reverts to the donor or his heir. young salmon shall not be taken from waters in the spring. a free tenant may alienate his land freely, but if the alienation was for an estate in fee simple [to a man and his heirs, with a full right of alienation by the man otherwise than on his death], the person acquiring the land would hold of the land's lord and not of the person alienating the land. (this halted the growth of subinfeudation and caused services as well as incidents of aids, relief, escheat, wardship, and marriage to go directly to the chief lord. it also advantaged the crown as overlord, which then acquired more direct tenants.) one may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. this was called a "fee simple conditional" holding of land. the successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. if there was no issue, it reverted to the original donor. this curtailed the advantage of tenants of the greater barons who profited by increased wardships and reliefs from subinfeudation from subdivision and better cultivation of their land while still paying the greater barons fixed sums. this statute that protected reversionary estates incidentally established a system of entails. this new manner of holding land: "fee tail", is in addition to the concepts of land held in fee simple and land held for life. the donor could give directions that an estate of inheritance go to a man or woman and certain classes of particular heirs rather than reverting to himself. a fee tail was often given to a man and the issue of his body. no donee or nor his heirs could alienate the land held in fee tail.interests in remainder or reversion of estates in land replaced the lord's tenurial right to succeed to land by escheat if his tenant dies without heirs. anyone disseising another whereby he also robs him or uses force and arms in the disseisin shall be imprisoned and fined. the plaintiff shall recover seisin and damages. "all must be ready at the command and summons of sheriffs, and at the cry of the country, to sue and arrest felons as necessary as well within franchise as without." otherwise, he shall be fined. a lord defaulting shall lose his franchise to the king. a bailiff defaulting shall be imprisoned a year as well as fined, or be imprisoned two years if he cannot pay the fine. a sheriff, coroner, or any other bailiff who conceals a felony will be imprisoned for a year and pay a fine, or be imprisoned for three years if he cannot pay the fine. villeins must report felons, pursue felons, serve in the watch, and clear growth of concealing underwood from roads. they must join the military to fight on the borders when called. desertion from the army is punishable. accessories to a crime shall not be declared outlaw before the principal is proven guilty. (this made uniform the practice of the various counties.) only those imprisoned for the smaller offenses of a single incidence of petty larceny, receipt of felons, or accessory to a felony, or some other trespass not punishable by life or limb shall be let out by sufficient surety. prisoners who were outlawed or escaped from prison or are notorious thieves or were imprisoned for felonious house burning, passing false money, counterfeiting the king's seal, treason touching the king himself, or other major offenses or have been excommunicated by the church may not be released. killing in self-defense and by mischance shall be pardoned from the king's indictment. killing by a child or a person of unsound mind shall be pardoned from the king's indictment. (but a private accuser can still sue.) any man who ravishes [abducts] any woman without her consent or by force shall have the criminal penalty of loss of life or limb. (the criminal penalty used to be just two years in prison.) trespasses in parks or ponds shall be punished by imprisonment for three years and a fine as well as paying damages to the wronged person. after his imprisonment, he shall find a surety or leave the nation. "forasmuch as there have been often times found in the country devisors of tales, where discord, or occasion of discord, has many times arisen between the king and his people, or great men of this realm; for the damage that has and may thereof ensue, it is commanded, that from henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the king and his people, or the great men of the realm." anyone doing so shall be imprisoned until he brings into the court the first author of the tale. a system of registration and enforcement of commercial agreements was established by statute. merchants could obtain a writing of a debt sealed by the debtor and authenticated by royal seal or a seal of a mayor of certain towns, and kept by the creditor. failure to pay a such a debt was punishable by imprisonment and, after three months, the selling of borough tenements and chattels and of county lands. during the three months, the merchant held this property in a new tenure of "statute merchant". (prior to this, it was difficult for a foreign merchant to collect a debt because he could not appear in court which did not recognize him as one of its proper "suitors" or constituents, so he had to trust a local attorney. also, the remedy was inadequate because the history of the law of debt was based on debt as a substitute for the blood feud, so that failure to pay meant slavery or death. also a debtor's land was protected by feudal custom, which was contrary to the idea of imposing a new tenant on a lord.) "in no city, borough, town, market, or fair shall a person of the realm be distrained for a debt for which he is not the debtor or pledge." anyone making those passing with goods through their jurisdiction answer to them in excess of their jurisdiction shall be grievously amerced to the king. no market town shall take an outrageous toll contrary to the common custom of the nation. since good sterling money has been counterfeited with base and false metal outside the nation and then brought in, foreigners found in the nation's ports with this false money shall forfeit their lives. anyone bringing money into the nation must have it examined at his port of entry. payments of money shall be made only by coin of the appropriate weight delivered by the warden of the exchange and marked with the king's mark. (a currency exchange was established at dover for the exchange of foreign currency for english sterling.) the silver in craftwork must be sterling and marked with the leopard's head. the gold in craftwork must meet the standard of the touch of paris. the assize of bread and ale had been and was enforced locally by local inspectors. now, the crown appointed royal officers for the gauge of wines and measurement of cloths. edicts disallowed middlemen from raising prices against consumers by such practices as forestalling [intercepting goods before they reached the market and then reselling them] or engrossing [buying a large supply of a commodity to drive up the price] and price regulation was attempted. for instance, prices were set for poultry and lamb, in a period of plenty. maximum prices were set for cattle, pigs, sheep, poultry, and eggs in , but these prices were hard to enforce. in london examples of prices set are: best hen d. q., best wild goose d., best hare d., best kid d., best lamb d., best fresh herrings for d., best pickled herrings for d., best haddock d., best fresh salmon s. freemen may drive their swine through the king's demesne forest to feed in their own woods or elsewhere. no man shall lose his life or limb for killing deer in the forest, but instead shall be grievously fined or imprisoned for a year. the forest charter allowed a man to cut down and take wood from his own woods in the king's forest to repair his house, fences, and hedges. he may also enclose his woods in the king's forest with fences and hedges to grow new trees and keep cattle and beasts therefrom. after seven years growth of these new trees, he may cut them down for sale with the king's permission. each borough has its own civil and criminal ordinances and police jurisdiction. borough courts tended to deal with more laws than other local courts because of the borough's denser populations, which were composed of merchants, manufacturers, and traders, as well as those engaged in agriculture. only borough courts have jurisdiction over fairs. in some boroughs the villein who resides for a year and a day becomes free, a right first given by henry ii in his charter for nottingham. there are special ordinances relating to apprentices. there are sometimes ordinances against enticing away servants bound by agreement to serve another. the wife who is a trader is regarded in many places as a feme sole [single woman rather than a woman covert, who was under the protection of a husband]. there may be special ordinances as to the liability of masters for the acts of their apprentices and agents, or as to brokers, debt, or earnest money binding a bargain. the criminal and police jurisdiction in the borough was organized upon the same model as in the country at large, and was controlled by the king's courts upon similar principles, though there are some survivals of old rules, such as mention of the bot and the wer. the crimes committed are similar to those of the country, such as violence, breaches of the assize of bread and beer, stirring up suits before the ecclesiastical courts, digging up or obstructing the highway, not being enrolled in a tithing, encroachments upon or obstructions of rights of common. the most striking difference with the country at large are the ordinances on the repair or demolition of buildings, encroachments on another's building, fires, and nuisances. specimens of other characteristic urban disputes are: selling bad food, using bad materials, unskillful or careless workmanship, fraudulent weights and measures, fraud in buying and selling, forestalling or regrating [buying in one market to resell in another market], acting in a way likely to endanger the liberties of the borough, usury, trading without being a citizen, assisting other unlicensed persons to trade, unlawfully forming a guild, complaints against various guilds in which trade might be organized. since the ordinances were always liable to be called in question before the king's courts, they tended to become uniform and in harmony with the principles of the common law. also, trading between boroughs kept them knowledgeable about each other's customs and conditions for trade, which then tended to standardize. boroughs often had seals to prove communal consent and tended to act as a corporate body. borough ordinances often include arson such as this one: "and if a street be set on fire by any one, his body shall be attached and cast into the midst of the fire." robbery by the miller was specially treated by an ordinance that "and if the miller be attainted [found guilty] of robbery of the grain or of the flour to the amount of d., he shall be hanged from the beam in his mill." in london, an ordinance prescribed for bakers for the first offense of making false bread a forfeiture of that bread. for the second offense was prescribed imprisonment, and for the third offense placement in the pillory. a london ordinance for millers who caused bread to be false prescribed for them to be carried in a tumbrel cart through certain streets, exposed to the derision of the people. by statute, no one may make a gift or alienation of land to the church. an attempt to do so will cause the land to escheat to the lord, or in his default, to the king. religious houses may not alienate land given to them by the king or other patrons because such gifts were for the sake of someone's soul. an attempt to do so will cause the land to revert to the donor or his heir. if the church did not say the prayers or do the other actions for which land was given to it, the land will revert to the donor or his heir. land may not be alienated to religious bodies in such a way that it would cease to render its due service to the king. (the church never died, never married, and never had children.) the church shall send no money out of the nation. (this statute of mortmain was neutralized by collusive lawsuits in which the intended grantor would sue the intended grantee claiming superior title and then would default, surrendering the land to the intended grantee by court judgment.) "concerning wrecks of the sea, where a man, a dog, or a cat escape alive out of the ship, that such ship nor barge nor anything within them shall be deemed wreck, but the goods shall be saved and kept by view of the sheriff, coroner, or the king's bailiff". if anyone proves the goods were his within a year and a day, they shall be restored to him without delay. otherwise, they shall be kept by the king. "and where wreck belongs to one other than the king, he shall have it in like manner". if he does otherwise, he shall be imprisoned and pay damages and fine. some statutes applied only to kent county, which had a unique position between london and the continent. money flowed between england and the continent through kent. so kent never developed a manorial system of land holding, but evolved from a system of clans and independent villages directly into a commercial system. in kent, all men are free and may give or sell their lands without permission of their lords, as before the conquest. one could sell or give away his land without the consent of one's lord. the services of the land, however, could only be sold to the chief lord. inheritance of land was to all sons by equal portions, and if there were no sons, then to all daughters in equal portions. the eldest brother has his choice of portion, then the next oldest, etc. the goods of a deceased person were divided into three parts after his funeral expenses and debts were paid. one third went to the surviving spouse. one third went to the deceased's sons and daughters. one third could be disposed by will of the decedent. if there were no children, one half went to the spouse and one half went according to will. if an heir was under years old, his next of kin to whom inheritance could not descend was to be his guardian. a wife who remarried or bore a child lost her dower land. a husband lost his dower if he remarried. if a tenant withheld rent or services, his lord could seek award of court to find distress on his tenement and if he could find none, he could take the tenement for a year and a day in his hands without manuring it. it the tenant paid up in this time, he got the tenement back. if he didn't within a year and a day, however, the lord could manure the land. a felon forfeited his life and his goods, but not his lands or tenements. a wife of a felon had the dower of one half or her husband's lands and tenements. the common law recognized the tort of false imprisonment if a man arrested as a felon, a person who was not a felon. judicial procedure the highest court was the king and his council in parliament. it heard the most important causes, important because they concern the king, or because they concern very great men (e.g. treason), or because they involve grave questions of public law, or because they are unprecedented. it has large, indefinite powers and provides new remedies for new wrongs. the office of great justiciar disappears and the chancellor becomes the head of the council. the chancellor heads the chancery, which is the secretarial department of the royal court. a litigant could not proceed without first obtaining a writ from chancery. the chancellor could form new writs. after the council were the royal courts of the king's bench, common pleas, and the exchequer, which had become separate, each with its own justices and records. the court of common pleas had its own chief justice and usually met at westminster. this disadvantaged the small farmer, who would have to travel to westminster to present a case. the king's council maintained a close connection with the court of the king's bench, which heard criminal cases and appeals from the court of common pleas. it traveled with the king. there were many trespass cases so heard by it in the reign of edward i. the king's council did a great deal of justice, for the more part criminal justice. it was supported by the populace because it dealt promptly and summarily with rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, and thereby prevented anarchy. its procedure was to send for the accused and compel him to answer upon oath written interrogatories. affidavits were then sworn upon both sides. with written depositions before them, the lords of the council, without any jury, acquit or convict. fines and imprisonments were meted out to rioters, conspirators, bribers, and perjured jurors. no loss of life or limb occurred because there had been no jury. in criminal cases, witnesses acquainted with particular facts were added to the general assize of twelve lawful men from each hundred and four lawful men from each town to testify to facts unknown by the assize men. the assize was bifurcated into the grand jury of twelve to twenty-four knights and the petty jury or trial jury of twelve free and lawful men, which replaced ordeal, compurgation, and trial by combat as the method of finding the truth. the men of the petty jury as well as those of the grand jury were expected to know or to acquaint themselves with the facts of the cases. the men of the petty jury tended to be the same men who were on the grand jury. felony was determined by common law to be one of seven offenses: treason, homicide, arson, rape, robbery, burglary, and grand larceny, the last of which involved over d., where d. was enough to keep a man from starvation for eight days. high treaason included covered the making of counterfeit money and the clipping if coin. burglary was an offense committed in times of peace and consisted of breaking into churches, houses, and into the walls and gates of villages and boroughs. these seven offenses could be prosecuted by indictment or private accusation by an individual. they were appealable, that is, the accuser must in general offer trial by battle. the penalties involved loss of life or limb or, if he fled, outlawry. actually, the death penalty was replacing loss of life or limb. death by hanging was the usual punishment. a felon's goods were confiscated by the crown and his land was forfeited to the crown for a year and a day and waste, after which it escheated to the felon's lord. the crimes of wounding, mayhem, and false imprisonment were not now felonies. the peace of the king now did not die with the king, but renewed automatically without an interval before the inauguration of a new king. notorious felons who would not consent or put themselves on inquests for felonies with which they were charged at royal courts were put in strong and hard imprisonment to persuade them to accept trial by assize. this inducement progressed into being loaded with heavy chains and placed on the ground in the worst part of the prison and being fed a only little water one day and a little bread the next. sometimes pieces of iron or stones were placed one another onto their prone bodies to persuade them to plead. this then developed into being loaded with as much iron as could be borne, and finally into being pressed to death ["peine forte et dure"]. many of these men chose to die by this pressing so that their families could inherit their property, which would have been forfeited if they had been convicted of serious crimes. the most common cases in the court of common pleas were detinue, "debt" [for money due from a sale, for money loaned, for rent upon a lease for years, from a surety, promised in a sealed document, or due to arbitrators to whom a dispute had been submitted] and "account" [e.g. against bailiffs of manors, a guardian in socage, and partners]. it also heard estovers [right to use during a lease] of wood, profit by gathering nuts, acorns, and other fruits in wood, corody [allowance of food], yearly delivery of grain, toll, tunnage, passage, keeping of parks, woods, forests, chases, warrens, gates, and other bailiwicks, and offices in fee. the itinerant justices gradually ceased to perform administrative duties on their journeys because landed society had objected to their intrusiveness. edward i substituted regular visitations of justices of assize for the irregular journeys of the itinerant justices. each one of four circuits had two justices of assize. from about , these justices of assize heard cases of gaol delivery. their jurisdiction expanded to include serious criminal cases and breach of the king's peace. one woman was indicted to every men. % of the women who were indicted were convicted compared to % of the men. breaches of the forest charter laws were determined by justices of the king's forest, parks, and chases, along with men of assize. coroners' inquest procedures were delineated by statute and included describing in detail in the coroner's rolls every wound of a dead body, how many may be culpable, and people claiming to have found treasure who might be suspects. the precedent for punishment for treason was established by the conviction of a knight, david ab gruffydd, who had turned traitor to the welsh enemy, after fighting with edward and being rewarded with land, during the conquest of wales. he had plotted to kill the king. he was found guilty of treason by parliament and condemned to be dragged at the heels of horses for being a traitor to his knightly vows, hanged by the neck for his murders, cut down before consciousness left him to have his entrails cut out for committing his crimes during the holy week of easter, and his head cut off and his body divided into four parts for plotting against the king's life. the head was placed on the tower of london and his body sections were placed in public view at various other locations in england. this came to be known as "hanging, drawing, and quartering". prior to this the penalty had usually been imprisonment followed by ransom. the penalty for a woman of treason, e.g. killing her husband, who was her lord, was burning at the stake. trial by combat is now limited to certain claims of enfeoffment of large land holding and is barred for land held in socage, burgage, or by marriage. (trial by combat eventually fell into disuse, but was not abolished until .) assize is the usual manner of trial, but compurgation remains in the borough court long after it becomes obsolete in the royal courts. it came to be that defendants no longer request assizes but are automatically put to them. numerous statutes protect the integrity of the courts and king's offices by double and treble damages and imprisonment for offenses such as bribery, false informers, conspiracy to falsely move or maintain pleas, champerty [covenant between a litigant and another for the other to have a part or profit in the award in return for maintaining the suit], conflict of interest by court officers taking part in a quarrel pending in court or working any fraud whereby common right may be delayed or disturbed. there had been many abuses, the most common of which was extortion by sheriffs, who gaoled people without cause to make them pay to be released. the prohibition of maintenance of a quarrel of a party in court by a nonparty was extended in to all persons, including the king's councilors and ministers, and great men, e.g. by sending letters. in , this prohibition specifically included prelates, earls, barons taking in hand quarrels other than their own, or maintaining them for gift, promise, amity, favor, doubt, or fear, in disturbance of law and hindrance of right. the reason given was that there had been persons disinherited, delayed or disturbed in their rights, and not guilty persons convicted or otherwise oppressed. all great men were required to put out of their service all maintainers who had been retained, and void their fees and robes, without giving them aid, favor, or comfort. this law was not obeyed. the king reserved to himself and his council in its judicial capacity the correction of all breaches of the law which the lower courts had failed to remedy, whether from weakness, partiality, corruption, or jury timidity, and especially when the powerful barons defied the courts. the chancery also sought to address causes which were impeded in their regular course, which often involved assaults, batteries, and forcible dispossessions. disputes within the royal household were administered by the king's steward. he received and determined complaints about acts or breaches of the peace within twelve miles around the king's person or "verge". he was assisted by the marshall in the "court of the hall" and by the clerk of the market when imposing fines for trading regulation violations in the "court of the market". ecclesiastical courts were successful in their competition with the secular courts for jurisdiction over testamentary matters [concerning wills] and intestate succession [no will] to chattels. there were local courts of the vill, borough, manor, hundred, county, sheriff, escheator, and royal bailiff, with overlapping jurisdictions. the county court in its full session, that is, as it attended the itinerant justices on their visitation, contained the archbishops, bishops, priors, earls, barons, knights, and freeholders, and from each township four men and the reeve, and from each borough twelve burgesses. it was still the folkmote, the general assembly of the people. in , suitors who could not spend s. a year within their county were not required to attend their county court. the most common plea in the hundred court was trespass. it also heard issues concerning services arising out of land, detention of chattels, small debts, wounding or maiming of animals, and personal assaults and brawls not amounting to felony. it met every three weeks. the sheriff held his turn twice a year and viewed frankpledge once a year. in chancery, the court of the chancellor, if there is a case with no remedy specified in the law, that is similar to a situation for which there is a writ, then a new writ may be made for that case. this was called "trespass on the case". this covered indirect as well as direct contact with a person, land, or chattels. an example is that trespasss would not apply to a boat whose rope attaching it to land was cut because the trespass did not have contact with the boat. only the rope would be the result of the trespass. trespass on the case would include the boat. the two chancery justices were the lord chancellor and the master of the rolls. when edward i came to the throne, over half of the approximately hundred courts had gone under the jurisdiction of a private lord owing to royal charter, prescriptive right, and usurpation. the sheriff's powers in these hundreds varied. in some, the sheriff had no right of entry. so edward i created the writ of quo warranto [by what right], by which all landholders exercising manor or franchise jurisdictions must bring their ancestors' charters before a traveling justice for the common pleas for examination and interpretation as to whether they had a charter or were going beyond their charters and infringing upon the jurisdiction of the royal court. as a result, many manor courts were confined to manorial matters and could no longer view frankpledge or hear criminal cases, which were reserved for the royal courts. in the manor courts which retained criminal jurisdiction, there was a reassertion of the obligation to have present a royal coroner, whose duty it was to see that royal rights were not infringed and that the goods of felons were given to the crown and not kept by the lords. some who could not produce a charter lost it; but later, uninterrupted use of a jursdiction since sufficed to retain that jurisdiction. in the manor courts, actions of debt, detinue, and covenant were frequent. sometimes there are questions of a breach of warranty of title in agreements of sale of land. accusations of defamation were frequent; this offense could not be taken to the king's court, but it had been recognized as an offense in the anglo-saxon laws. in some cases, the damages caused are specifically stated. for instance, defamation of a lord's grain would cause other purchasers to forbear buying it. there are frequent cases of ordinary thefts, trespasses, and assaults. the courts did rough but substantial justice without distinction between concepts such as tort and contract. in fact, the action of covenant was the only form of agreement enforceable at common law. it required a writing under seal and awarded damages. manor court law was not technical, but elastic, and remedies could include injunctions, salary attachment, and performance of acts. the steward holding the manor court was often a lawyer. some pleas in the manors of the abbey of bec were: . -hugh le pee in mercy (fine, d.) for concealing a sheep for half a year. pledges, simon of newmere, john of senholt . -william ketelburn in mercy (fine, s. d.) for divers trespasses. pledge, henry ketelburn. . -hugh derwin for pasture, d. richard hulle for divers trespasses, d. henry stanhard for pasture, d. . -william derwin for a trespass, d.; pledge, william sperling. . -hugh hall gives the lord d. that he may have the judgment of the court as to a tenement and two acres of land, which he demands as of right, so he says. and it being asserted that the said land is not free[hold] let the court say its say. and the court says that the tenement and one of the two acres are of servile condition and that the other acre is of free condition. the case is reserved for the lord's presence. pledge, john brian. . -john palmer is put in seisin of his father's tenement and -gives the lord s. d. as entry money. . -william ketelburn gives the lord s. d. that he may be removed from the office of reeve. pledge, robert serjeant. . -william frith for subtraction of work, d. john reginald -for the same, d. john of senholt, d. william ketelburn, d. . -for the common fine to be paid on s. andrew's day, s. . it is presented by the chief pledges that godfrey serjeant has made default; also that john le pee has unlawfully thrown up a bank; therefore let it be set to rights. . robert smith is put in seisin of his father's tenement and gives the lord four pounds for entry money. pledge, robert serjeant. . william ketelburn for a trespass, s. d. . william fleming gives four pounds for leave to contract [marriage] with widow susan. pledge, richard serjeant. . john mabely gives the lord s. to have the judgment of twelve men as to certain land whereof noah deforces him; pledges, richard smith, ralph bernard. the said jurors say - - that noah the fat has right; therefore etc. . agnes stampelove gives the lord s. for leave to come and go in the vill but to dwell outside the lord's land. pledge, richard smith. . godfrey tailor the younger for a trespass, s. . whereas godfrey tailor the younger has demanded against noah a farthing land, now the action is compromised in manner following: godfrey for himself and his heirs remises to the said noah and his heirs all right and claim which he has or can have in the said farthing land by reason of the gift made by his grandfather john tailor. . agnes mabely is put in seisin of a farthing land which her mother held, and gives the lord s. d. for entry money. pledges, noah, william askil. . the full court declares that in case any woman shall have altogether quitted the lord's domain and shall marry a freeman, she may return and recover whatever right and claim she has in any land; but if she shall be joined to a serf, then she cannot do this during the serf's lifetime, but after his death she may. t . william alice's son is put in seisin of a bakehouse in the king's street, and shall keep up the house at his own cost and gives d. for entry money, and s. annual rent payable at three terms, viz. s. d. at martinmas, s. d. at lady day, s. d. at christmas. pledges, adam clerk, john deboneir. . john son of alma demands a cottage which henry fleming holds and gives the lord d. for the oath and recognition of men; pledge, richard jordan. the jurors say that henry fleming has the better right. . baldwin cobbler's son finds [as pledges] walter cobbler, roger of broadwater, robert linene, william frances, that notwithstanding his stay in london he will always make suit with his tithing and will at no time claim any liberty contrary to the lord's will and will come to the lord whenever the lord wills. . simon patrick gives the lord d. to have the judgment of the court as to a cottage of which the widow of geoffrey dogers deforces him; pledge, simon of strode. the said -jurors say that the said simon has the better right. and the said simon remises and quitclaims all his right to his sister maud and her husband john horin, [who] gives the lord s. for entry money; pledges, simon patrick, john talk. . hugh wiking for not making suit at the lord's mill, d. . it was presented that william derwin and john derwin (fine, d.) committed a trespass against agnes dene, and the cry was raised, therefore etc. . hugh churchyard contracted [marriage] without the lord's leave; [fine] d. . let juliana forester be distrained for her default, also william moor. . john kulbel in mercy (fine, d.) for not producing gregory miller, and he is commanded to produce him at the next court. . hugh andrew's son gives the lord s. for leave to marry; pledge, robert serjeant. . juliana forester gives the lord d. in order that for the future no occasion may be taken against her for neglect of suit of court. . john franklain is put in seisin of his father's tenement and gives the lord s. for entry; pledge, robert serjeant. . henry cross gives the lord s. for license to marry; pledge, robert serjeant. . isabella warin gives the lord s. for leave to give her daughter mary in marriage; pledge, john serjeant. . it is presented by the whole township that ralph le war has disseised the lord of a moiety of a hedge, whereas it had often been adjudged by award of the court that the said hedge belongs as to one moiety to the lord and as to the other to ralph, and the said ralph claims and takes to his use the whole to the lord's damage etc. also they say that the said ralph holds overcolkescroft, which land by right is the lord's. . it is presented by unanimous verdict of the whole court that if anyone marries a woman who has right in any land according to the custom of the manor and is seised thereof by the will of the lord, and the said woman surrenders her right and her seisin into the hands of the lord and her husband receives that right and seisin from the hands of the lord, in such case the heirs of the woman are for ever barred from the said land and the said right remains to the husband and his heirs. therefore let william wood, whose case falls under this rule, hold his land in manner aforesaid. and for the making of this inquest the said william gives the lord s. d. . the tenements of lucy mill are to be seized into the lord's hands because of the adultery which she has committed and the bailiff is to answer for them. - -the chief pledges present that cristina daughter of richard maleville has married at london without the lord's licence; therefore let the said richard be distrained. he has made fine with d. also that alice berde has done the same; therefore let her be distrained. also that robert fountain -has committed a trespass against william gery; therefore the said robert is in mercy; pledge, humfrey; fine, d. also that richard maleville has drawn blood from stephen gust; therefore he is in mercy; fine, s. . geoffrey coterel in mercy for a battery; fine, d.; pledge, adam serjeant. geoffrey coterel for trespass in the hay; fine, d.; pledge, alan reaper. hugh of senholt in mercy for trespass in the green wood; fine, d. . hugh wiking in mercy for delay in doing his works; fine, d. hugh churchyard for trespass in [cutting] thorns; fine, d. thomas gold in mercy for trespass in the wood; fine, d.; pledge, robert grinder. . william dun in mercy for subtraction of his works due in autumn; fine, s. avice isaac for the same, d.; hugh wiking -for the same, d.; agnes rede in mercy for her daughter's trespass in the corn [grain], d. . walter ash in mercy for not making suit to the lord's mill; fine, d. hugh pinel in mercy for diverting a watercourse to the nuisance of the neighbors; fine, d.; pledge, robert fresel. . john dun in mercy for carrying off corn [grain] in the autumn; pledge, adam white. alan reaper gives the lord d. on account of a sheep which was lost while in his custody. . adam white in mercy for bad mowing; fine, d. hugh harding in mercy for the same; fine, d. . the chief pledges present that henry blackstone (fine, d.), hugh churchyard (fine, d.), walter ash (fine, d.), henry of locksbarow (fine, d.), avice isaac (fine, d.), richard matthew (fine, d.), hugh wiking (fine,--), ralph dene (fine, d.), john palmer (fine, d.), john coterel (fine, d.), john moor (fine, d.), john cubbel (fine, d.), hugh andrew (fine, d.), philip chapman (fine, d.), john fellow (fine, d.), robert bailiff (fine, d.), alice squire (fine, d.), john grately (fine,--), richard hull (fine, d.), osbert reaper (fine, d.), and robert cross (fine, d.), have broken the assize of beer. also that henry of senholt, henry brown, hugh hayward, richard moor, juliana woodward, alice harding, peronel street, eleanor mead make default. also that walter ash (fine,--), john wiking (fine,--), john smart (fine,--), and henry coterel have married themselves without the lord's licence; therefore let them be distrained to do the will of the lord. . alan reaper for the trespass of his foal; fine, d. . philip chapman in mercy for refusing his gage to the lord's bailiff; fine, d. . william ash in mercy for trespass in the growing crop; fine, d. . john iremonger in mercy for contempt; fine, d. . the chief pledges present that william of ripley (fine, d.), walter smith (no goods), maud of pasmere (fine, d.), have received [strangers] contrary to the assize; therefore - - they are in mercy. . maud widow of reginald of challow has sufficiently proved that a certain sheep valued at d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges, john iremonger and john robertd; and she gives the lord d. for [his] custody [of it]. the court of hustings in london is empowered to award landlords their tenements for which rent or services are in arrears if the landlord could not distrain enough tenant possessions to cover the arrearages. wills are proven in the court of husting, the oldest court in london, which went back to the times of edward the confessor. one such proven will is: "tour (john de la) - to robert his eldest son his capital messuage and wharf in the parish of berchingechurch near the land called 'berewardesland`. to agnes his wife his house called 'wyvelattestone', together with rents, reversions, etc. in the parish of s. dunstan towards the tower, for life; remainder to stephen his son. to peter and edmund his sons lands and rents in the parish of all hallows de berhyngechurch; remainders over in default of heirs. to agnes, wife of john le keu, fishmonger, a house situate in the same parish of berhyng, at a peppercorn [nominal] rent." the court of the mayor of london heard diverse cases, including disputes over goods, faulty or substandard goods, adulteration, selling food unfit for human consumption, enhancing the price of goods, using unlawful weighing beams, debts, theft, distraints, forgery, tavern brawling, bullying, and gambling. insulting or assaulting a city dignitary was a very serious crime; an attack on the mayor was once capitally punished. sacrilege, rape, and burglary were punished by death. apart from the death penalty, the punishment meted out the most was public exposure in the pillory, with some mark of ignominy slung round the neck. if the crime was selling bad food, it was burnt under the offender's nose. if it was sour wine, the offender was drenched in it. standing in the pillory for even one hour was very humiliating, and by the end of the day, it was known throughout the city. the offender's reputation was ruined. some men died in the pillory of shame and distress. a variation of the pillory was being dragged through the streets on a hurdle. prostitutes were carted through the streets in coarse rough cloth hoods, with penitential crosses in their hands. scolds were exposed in a "thewe" for women. in more serious cases, imprisonment for up to a year was added to the pillory. mutilation was rare, but there are cases of men losing their right hands for rescuing prisoners. the death penalty was usually by hanging. the following four london cases pertain to customs, bad grain, surgery, and apprenticeship, respectively. this is a lawsuit: "john le paumer was summoned to answer richer de refham, sheriff, in a plea that, whereas the defendant and his society of bermen [carriers] in the city were sworn not to carry any wine, by land or water, for the use of citizens or others, without the sheriff's mark, nor lead nor cause it to be led, whereby the sheriff might be defrauded of his customs, nevertheless he caused four casks of wine belonging to ralph le mazun of westminster to be carried from the city of westminster without the sheriff's mark, thus defrauding the latter of his customs in contempt of the king etc. the defendant acknowledged the trespass. judgment that he remain in the custody of the sheriff till he satisfy the king and the court for offense." this is a lawsuit: "walter atte belhaus, william atte belhous, robert le barber dwelling at ewelleshalle, john de lewes, gilbert le gras, john his son, roger le mortimer, william ballard atte hole, peter de sheperton, john brun and the wife of thomas the pelterer, stephen de haddeham, william de goryngg, margery de frydaiestrate, mariot, who dwells in the house of william de harwe, and william de hendone were attached to answer for forestalling all kinds of grain and exposing it, together with putrid grain, on the pavement, for sale by the bushel, through their men and women servants; and for buying their own grain from their own servants in deception of the people. the defendants denied that they were guilty and put themselves on their country. a jury of richard de hockeleye and others brought in a verdict of guilty, and the defendants were committed to prison till the next parliament." this is a lawsuit: "peter the surgeon acknowledged himself bound to ralph de mortimer, by richard atte hill his attorney, in the sum of s., payable at certain terms, the said ralph undertaking to give peter a letter of acquittance [release from a debt]. this recognizance arose out of a covenant between them with regard to the effecting of a cure. both were amerced for coming to an agreement out of court. a precept was issued to summon all the surgeons of the city for friday, that an inquiry might be made as to whether the above peter was fitted to enjoy the profession of a surgeon." this is a lawsuit: "thomas de kydemenstre, shoemaker, was summoned to answer william de beverlee, because he did not clothe, feed and instruct his apprentice thomas, william's son, but drove him away. the defendant said that the apprentice lent his master's goods to others and promised to restore them or their value, but went away against his wish; and he demanded a jury. subsequently, a jury of william de upton and others said the apprentice lent two pairs of shoes belonging to his master and was told to restore them, but, frightened by the beating which he received, ran away; further that the master did not feed and clothe his apprentice as he ought, being unable to do so, to the apprentice's damage d., but that he was now in a position to look after his apprentice. thereupon thomas de kydemenstre said he was willing to have the apprentice back and provide for him, and the father agreed. judgment that the master take back the apprentice and feed and instruct him, or that he repay to the father, the money paid to the latter, and that he pay the father the d. and be in mercy." a professional class of temporal attorneys whose business it is to appear on behalf of litigants is prominent in the nation. the idea of representation has spread outwards from a king who has so many affairs that he can not conduct them in person. men often appear to defend themselves in the king's court by attorney. but attorneys do not conduct prospective litigation for a client. attorneys are now drawn from the knightly class of landed gentlemen, instead of ecclesiastical orders. since it was forbidden for ecclesiastics to act as advocates in the secular courts, those who left the clergy to become advocates adopted a close-fitting cap to hide their tonsures, which came to be called a "coif". the great litigation of the nation is conducted by a small group of men, as is indicated by the earliest year books of case decisions compiled by attorneys and students attending the court. these attorneys sit in court and will sometimes intervene as amicus curiae [friends of the court]. parliament refers difficult points of law to them as well as to the justices. these reports became so authoritative that they could be cited in the courts as precedent. groups of attorneys from the countryside who are appearing in london courts during term-time and living in temporary lodgings start to form guild-like fellowships and buy property where they dine and reside together, called the inns of court. they begin to think of themselves as belonging to a profession, with a feeling of responsibility for training the novices who sat in court to learn court procedures and attorney techniques. they invited these students to supper at the inns of court for the purpose of arguing about the day's cases. the inns of court evolved a scheme of legal education, which was oral and used disputations. thus they became educational institutions as well as clubs for practicing attorneys. the call to the bar of an inn was in effect a degree. to be an attorney one had to be educated and certified at the inns of court. they practice law full time. some are employed by the king. justices come to be recruited from among those who had passed their lives practicing law in court, instead of from the ecclesiastical orders. all attorneys were brought under the control of the justices. there are two types of attorney: one attorney appears in the place of his principal, who does not appear. the appointment of this attorney is an unusual and a solemn thing, only to be allowed on special grounds and with the proper formalities. for instance, a poor person may not be able to afford to travel to attend the royal court in person. the other one is the pleader-attorney, who accompanies his client to court and advocates his position with his knowledge of the law and his persuasiveness. the king came to retain a number of attorneys, called his serjeants at law, to plead his causes for him. edward directed his justices to provide for every county attorneys from among the best, the most lawful, and the most teachable, so the king and people would be well served. thereby were attorneys brought under the control of the justices. in , the city of london made regulations for the admission of both types of attorneys to practice before the civic courts, and for their due control. in the king directed the justices to provide a certain number of attorneys and apprentices to follow the court, who should have the exclusive right of practicing before it. this begins the process which will make the attorney for legal business an "officer of the court" which has appointed him. chapter the times: - waves of the black death, named for the black spots on the body, swept over the nation. the black blotches were caused by extensive internal bleeding. the plague was carried in the blood of black rats and transmitted to humans by the bite of the rat flea, but this cause was then unknown. the first wave of this plague, in , lasted for three years and desolated the nation by about one half the population in the towns and one third in the country. people tried to avoid the plague by flight. the agony and death of so many good people caused some to question their belief in god. also, it was hard to understand why priests who fled were less likely to die than priests who stayed with the dying to give them the last rites. legal and judicial, as well as other public business weere interrupted by theplague and ceased for two years. thus begins a long period of disorganization, unrest, and social instability. customary ways were so upset that authority and tradition were no longer automatically accepted. fields lay waste and sheep and cattle wandered over the countryside. local courts could seldom be held. some monasteries in need of cash sold annuities to be paid in the form of food, drink, clothing, and lodging during the annuitant's life, and sometimes that of his widow also. guilds and rich men made contributions to the poor and ships with provisions were sent to various parts of the country for the relief of starving people. in london, many tradesmen and artisans formed parish fraternities which united people of all social levels and women on almost equal terms with men, in communal devotion and mutual support, such as help in resolving disputes, moral guidance, money when needed, and burial and masses. farm workers were so rare that they were able to demand wages at double or triple the pre-plague rate. the pre-plague had been - d. daily for masons, carpenters, plasterers, and tilers and d. for their laborers. these laborers could buy cheap loaves, gallons of ale, and a gallon of cheap wine or half a pair of shoes. prices did not go up nearly as much as wages. villeins relinquished their tenements, and deserted their manors, to get better wages elsewhere. they became nomadic, roaming from place to place, seeking day work for good wages where they could get it, and resorting to thievery on the highways or beggary where they could not. the robin hood legends were popular among them. in them, robin hood is pure outlaw and does not contribute money to the poor. nor does he court maid marion. villeins spread political songs among each other, such as: "to seek silver to the king, i my seed sold; wherefore my land lieth fallow and learneth to sleep. since they fetched my fair cattle in my fold; when i think of my old wealth, well nigh i weep. thus breedeth many beggars bold; and there wakeneth in the world dismay and woe, for as good is death anon as so for to toil." groups of armed men took lands, manors, goods, and women by force. the villeins agreed to assist each other in resisting by force their lords' efforts to return them to servitude. a statute of laborers passed in for wages to be set at the pre-plague rates was ineffectual. justices became afraid to administer the law. villeins, free peasants, and craftsmen joined together and learned to use the tactics of association and strikes against their employers. the office of justice of the peace was created for every county to deal with rioting and vagrants. this office required no education and was filled by volunteers. cooperation by officials of other counties was mandated to deal with fugitives from its justice. the black death visited again in and in . the black death reduced the population from about million to about / million. it was to rise to about million by . when there were attempts to enforce the legal servitude of the villeins, they spread rhymes of their condition and need to revolt. a secret league, called the "great society" linked the centers of intrigue. a high poll tax, graduated from s. to d., that was to be raised for a war with france, touched off a spontaneous riot all over the nation in . this tax included people not taxed before, such as laborers, the village smith, and the village tiler. each area had its own specific grievances. there was no common political motive, except maladministration in general. in this peasants' revolt, mobs overran the counties around london. the upper classes fled to the woods. written records of the servitude of villeins were burned in their halls, which were also looted. title deeds of landlords were burned. rate rolls of general taxation were destroyed. prisoners were released from gaols. men connected with tax collection, law enforcement, attorneys, and alien merchants were beheaded. the chief justice was murdered while fleeing. the archbishop, who was a notoriously exploitive landlord, the chancellor, and the treasurer were murdered. severed heads were posted on london bridge. a mob took control of the king's empty bedchamber in the tower. the villeins demanded that service to a lord be by agreement instead of by servitude, a commutation of villein service for rents of a maximum of d. per acre yearly, abolition of a lord's right for their work on demand (e.g. just before a hail storm so only his crops were saved), and the right to hunt and fish. the sokemen protested having to use the lord's mill and having to attend his court. the revolt was suppressed and its leaders punished. the king issued proclamations forbidding unauthorized gatherings and ordering tenants of land to perform their customary services. the poll tax was dropped. for the future, the duty to deal with rioting and vagrants was given to royal justices, sheriffs, mayors, bailiffs, and constables as well as the justices of the peace. there was a high justice of the peace in each hundred and a petty constable in each parish. justices of the peace could swear in neighbors as unpaid special constables when disorder broke out. the sheriff was responsible for seeing that men of the lower classes were organized into groups of ten for police and surety purposes, and for holding of hundred and county courts, arresting suspects, guarding prisoners awaiting trial, carrying out the penalties adjudged by the courts, and collecting crown revenue through his bailiffs. royal writs were addressed to the sheriff. because many sheriffs had taken fines and ransoms for their own use, a term limit of one year was imposed. sheriffs, hundreders, and bailiffs had to have lands in the same counties or bailiwicks [so they could be held answerable to the king]. efforts were made to keep laborers at the plough and cart rather than learn a craft or entering and being educated by the church. the new colleges at the universities ceased to accept villeins as students. due to the shortage of labor, landlords' returns had decreased from about % to about %. but some found new methods of using land that were more profitable than the customary services of villeins who had holdings of land or the paid labor of practically free men who paid a money rent for land holdings. one method was to turn the land to sheep breeding. others leased their demesne land, which transferred the burden of getting laborers from the landlord to the lessee-tenant. the payment was called a "farm" and the tenant a "farmer". first, there were stock-and-land leases, in which both the land and everything required to cultivate it were let together. after years, when the farmers had acquired assets, there were pure land leases. landlords preferred to lease their land at will instead of for a term of years to prevent the tenant from depleting the soil with a few richer crops during the last years of his tenancy. the commutation of labor services into a money payment developed into a general commutation of virtually all services. lords in need of money gladly sold manumissions to their villeins. the lord and lady of some manors now ate with their family and entertained guests in a private parlor [from french word 'to speak"] or great chamber, where they could converse and which had its own fireplace. the great chamber was usually at the fireplace end of the great hall, where there was a high table. the great hall had been too noisy for conversation and now was little used. there were also separate chambers or bed-sitting rooms for guests or members the family or household, in which one slept, received visitors, played games, and occasionally ate. some farmers achieved enough wealth to employ others as laborers on their farms. the laborers lived with their employer in his barn, sleeping on hay in the loft, or in mud huts outside the barn. the farmer's family lived at one end of the barn around an open fire. their possessions typically were: livestock, a chest, a trestle table, benches, stools, an iron or bronze cauldron and pots, brooms, wooden platters, wooden bowls, spoons, knives, wooden or leather jugs, a salt box, straw mattresses, wool blankets, linen towels, iron tools, and rush candles [used the pith of a rush reed for the wick]. those who could not afford rush candles could get a dim light by using a little grease in a shallow container, with a few twisted strands of linen thread afloat in it. the peasants ate dark bread and beans and drank water from springs. milk and cheese were a luxury for them. those who could not afford bread instead ate oat cakes made of pounded beans and bran, cheese, and cabbage. they also had leeks, onions, and peas as vegetables. some farmers could afford to have a wooden four-posted bedstead, hens, geese, pigs, a couple of cows, a couple of sheep, or two-plough oxen. july was the month when the divide between rich and poor became most apparent. the rich could survive on the contents of their barns, but the poor tried to survive by grinding up the coarsest of wheat bran and shriveled peas and beans to make some sort of bread. grain and bread prices soared during july. farming still occupied the vast majority of the population. town inhabitants and university students went into the fields to help with the harvest in the summer. parliament was suspended during the harvest. town people had more wealth than country people. most townspeople slept in nightgowns and nightcaps in beds with mattresses, blankets, linen sheets, and pillows. beds were made every morning. bathing was by sponging hot water from a basin over the body, sometimes with herbs in it, rinsing with a splash of warm water, and drying off with a towel. tubs used only for baths came into use. there were drapery rugs hung around beds, handheld mirrors of glass, and salt cellars. the first meal of the day was a light breakfast, which broke the fast that had lasted the night. meals were often prepared according to recipes from cook books which involved several preparation procedures using flour, eggs, sugar, cheese, and grated bread, rather than just simple seasoning. menus were put together with foods that tasted well together and served on plates in several courses. children's sweets included gingerbread and peppermint drops. sheffield cutlery was world famous. table manners included not making sounds when eating, not playing with one's spoon or knife, not placing one's elbows on the table, keeping one's mouth clean with a napkin, and not being boisterous. there were courtesies such as saying "good morning" when meeting someone and not pointing one's finger at another person. king richard ii invented the handkerchief for sneezing and blowing one's nose. there were books on etiquette. cats were the object of superstition, but there was an ancient and honorable order of the men who stroke cats. new burgesses were recruited locally, usually from within a mile radius of town. most of the freemen of the larger boroughs, like canterbury and london, came from smaller boroughs. an incoming burgess was required to buy his right to trade either by way of a seven year apprenticeship or by payment of an entry fee. to qualify, he needed both a skill and social respectability. towns started acquiring from the king the right to vacant sites and other waste places, which previously was the lord's right. the perpetuality of towns was recognized by statutes of , which compared town-held property to church-held property. the right of london to pass ordinances was confirmed by charter. some towns had a town clerk, who was chief of full-time salaried officers. there was a guildhall to maintain, a weigh-house, prison, and other public buildings, municipal water supplies, wharves, cranes, quays, wash-houses, and public lavatories. after the experience of the black death, some sanitary measures were taken. the notorious offenders in matters of public hygiene in the towns, such as the butchers, the fishmongers, and the leather tanners were assigned specific localities where their trades would do least harm. the smiths and potters were excluded from the more densely populated areas because they were fire risks. in the town of salisbury, there was butcher row, ox row, fish row, ironmongers' row, wheelwrights' row, smiths' row, pot row, silver street, cheese market, and wool market. for water, most communities depended on rivers that ran near by or on public wells that were dug to reach the water underground. some towns had water public water supply systems. fresh water was brought into the town from a spring or pond above the town by wood or lead pipes or open conduits. sometimes tree trunks were hollowed out and tapered at the ends to fit into the funnel-shaped end of another. but they leaked a lot. in london, a conduit piped water underground to a lead tank, from which it was delivered to the public by means of pipes and brass taps in the stone framework. this was london's chief water supply. water carriers carried water in wooden devices on their backs to houses. the paving and proper drainage of the streets became a town concern. building contracts began specifying the provision of adequate cesspits for the privies at town houses, whether the latrines were built into the house or as an outhouse. also, in the better houses, there grew a practice of carting human and animal fecal matter at night to dung heaps outside the city walls. there was one public latrine in each ward and about twelve dung carts for the whole city. country manor houses had latrines on the ground floor and/or the basement level. in london, the goldsmiths, merchant taylors [tailors], skinners, and girdlers bought royal charters, which recognized their power of self-government as a company and their power to enforce their standards, perhaps throughout the country. the goldsmiths, the mercers, and the saddlers became in the first guilds to receive charters of incorporation, which gave them perpetual existence. as such they could hold land in "mortmain" [dead hand], thus depriving the king of rights that came to him on the death of a tenant-in-chief. they were authorized to bestow livery on their members and were called livery companies. the liverymen [freemen] of the trading companies elected london's representatives to parliament. in all towns, the organization of craft associations spread rapidly downwards through the trades. these associations sought self-government. craft guilds were gaining much power relative to the old merchant guilds in governing the towns. the greater crafts such as the fishmongers, skinners, and the corders (made rope, canvas, and pitch) organized and ultimately were recognized by town authorities as self-governing craft guilds. the building trade guilds such as the tilers, carpenters, masons, and joiners, became important. masons were still itinerant, going to sites of churches, public buildings, or commanded by the king to work on castles. the guild was not necessarily associated with a specific product. for instance, a saddle and bridle were the result of work of four crafts: joiner (woodworker), painter, saddler (leather), and lorimer (metal trappings). in london in craft guilds included: baker, fishmonger (cut up and sold fish), fruitier, brewer, butcher, bird dealer, cook, apothecary (sold potions he had ground up), cutler (made knives and spoons), barber, tailor, shoemaker, glover (made gloves), skinner (sold furs), girdler (made girdles of cloth to wear around one's waist), pouchmaker, armorer, sheathmaker, weaver, fuller, painter, carpenter, joiner (woodworker who finished interior woodwork such as doors and made furniture), tiler, mason (cut stone for buildings), smith (made metal tools for stonemasons and builders), tallow chandler (made candles and sometimes soap from the fat and grease the housewife supplied), wax chandler (made candles), stirrup maker, spurrier (made spurs), and hosteler (innkeeper). however, the merchant guilds of the goldsmiths, vintners (sold wine), mercers (sold cloth), grocers, and drapers (finished and sold english cloth) were still strong. it was a long custom in london that freemen in one company could practice the trade of another company. there were paint mills and saw mills replacing human labor. there were apothecary shops and women surgeons. women who earned their own living by spinning were called "spinsters". some prices in london were: a hen pastry d., a capon pastry d., a roast pheasant d., a roast heron d., roast goose d., a hen d., a capon d., three roast thrushes d., ten larks d., ten finches d, and ten cooked eggs d. many of the guilds bought sites on which they built a chapel, which was later used as a secular meeting place. the guild officers commonly included an alderman, stewards, a dean, and a clerk, who were elected. the guild officers sat as a guild court to determine discipline for offenses such as false weights or measures or false workmanship or work and decided trade disputes. the brethren in guild fraternity were classified as masters, journeymen, or apprentices. they were expected to contribute to the support of the sick and impoverished in their fellowship. their code required social action such as ostracizing a man of the craft who was living in adultery until he mended his ways. the rules of the company of glovers were: . -none but a freeman of the city shall make or sell gloves. . -no glover may be admitted to the freedom of the city unless with the assent of the wardens of the trade. . -no one shall entice away the servant of another. . -if a servant in the trade makes away with his master's chattels to the value of d., the wardens shall make good the loss; and if the servant refuses to be judged by the - - wardens, he shall be taken before the mayor and aldermen. . -no one may sell his goods by candlelight. . -any false work found shall be taken before the mayor and aldermen by the wardens. . -all things touching the trade within the city between those who are not freemen shall be forfeited. . -journeymen shall be paid their present rate of wages. . -persons who entice away journeymen glovers to make gloves in their own houses shall be brought before the mayor and aldermen. . any one of the trade who refuses to obey these regulations shall be brought before the mayor and aldermen. cordwainers [workers in soft cordovan leather from spain, especially shoes] of good repute petitioned the city of london in for ordinances on their trade as follows: "to the mayor and aldermen of the city of london pray the good folks of the trade of cordwainers of the same city, that it may please you to grant unto them the articles that follow, for the profit of the common people; that so, what is good and right may be done unto all manner of folks, for saving the honor of the city and lawfully governing the said trade. in the first place - that if any one of the trade shall sell to any person shoes of bazen [sheepskin tanned in oak or larch-bark] as being cordwain, or of calf-leather for ox-leather, in deceit of the common people, and to the scandal of the trade, he shall pay to the chamber of the guildhall, the first time that he shall be convicted thereof, forty pence; the second time, s. half a mark; and the third time the same, and further, at the discretion of the mayor and aldermen. also - that no one of the trade shall keep house within the franchise if he be not free [invested with the rights or privileges] of the city and one knowing his trade, and that no one shall be admitted to the freedom without the presence of the wardens of the trade bearing witness to his standing, on the pain aforesaid. also - if any one of the trade shall be found offending touching the trade, or rebellious against the wardens thereof, such person shall not make complaint to any one of another trade, by reason of the discord or dissension that may have arisen between them; but he shall be ruled by the good folks of his own trade. and if he shall differ from them as acting against right, then let the offense be adjudged upon before the mayor and aldermen; and if he be found rebellious against the ordinance, let him pay to the chamber the sum above mentioned. also - that no one of the trade shall entice or purloin the servant of another from the service of his master by paying him more than is ordained by the trade, on the pain aforesaid. also - that no one shall carry out of his house any wares connected with his trade for sale in market or elsewhere except only at a certain place situated between soperesland and the conduit; and that at a certain time of the day, that is to say, between prime [the first hour of the day] and noon. and that no shoes shall exceed the measure of seven inches, so that the wares may be surveyed by the good folks of the trade, because of the deceit upon the common people that might ensue and the scandal of the trade, on the pain aforesaid. also - that no one shall expose his wares openly for sale in market on sundays at any place, but only within his own dwelling to serve the common people, on the pain aforesaid. also - that if any one sells old shoes, he shall not mix new shoes among the old in deceit of the common people and to the scandal of the trade, on the pain aforesaid." smithfield was a field outside the city gates at which horses were sold and raced. in , the horse dealers and drovers petitioned for a tax on animals sold there to pay for cleaning the field. the city ordinance reads as follows: "on wednesday next after the feast of st. margaret the virgin came reputable men, the horse dealers and drovers, and delivered unto the mayor and aldermen a certain petition in these words: 'to the mayor, recorder, and aldermen show the dealers of smithfield, that is to say, the coursers and drovers, that for the amendment of the said field they have granted and assented among them that for the term of three years next ensuing after the date of this petition for every horse sold in the said field there shall be paid one penny, for every ox and cow one halfpenny, for every eight sheep one penny, and for every swine one penny by the seller and the same by the purchaser who buys the same for resale.` afterwards, on the eleventh day of august in the same year, adam fernham, keeper of the gaol at newgate, hugh, averelle, bailiff of smithfield, and william godhewe, weaver, were chosen and sworn faithfully to collect and receive the said pennies in form aforesaid and to clean the field of smithfield from time to time during such term of three years when necessary." many london houses were being made from stone and timber and even brick and timber, instead of just timber and mud. however, chimneys were still a luxury of the rich. they were made of stone, tile, or plaster. there were windows of glass and a guild of glaziers was chartered by the king. a typical merchant's house had a cellar; a ground floor with a shop and storage space; a first floor with a parlor to receive guests, a spacious hall for dining, and perhaps a kitchen; and at the top, a large family bedroom and a servant's room. stairwells between floors had narrow and winding steps. many single-roomed houses added a second-floor room for sleeping, which was approached by a wooden or stone staircase from the outside. their goods were displayed on a booth outside the door of the house or hung in the windows. they were stored at night in the cellar. over the booths swung huge signs, which had to be nine feet above street level to allow a man on horseback to ride underneath. there were no sidewalks. street repair work for wages was supervised by a stone master. the streets sloped down from the middle so that the filth of the streets would run down the sides of the road. there were many wood chips in the streets due to cutting up of firewood before taking it indoors. people often threw the rubbish from their houses onto the street although they were supposed to cart it outside the city walls and to clean the frontage of their houses once a week. dustmen scavenged through the rubbish on the streets. pigs and geese were no longer allowed to run at large in the streets, but had to be fed at home. there were other city rules on building, public order, the use of fountains, precautions against fire, trading rights in various districts, closing time of taverns, and when refuse could be thrown into the streets, e.g. nighttime. aldermen were constantly making rounds to test measures and weights, wine cups, the height of tavern signs, and the mesh of the fishing nets, which had to be at least two inches wide. they saw that the taverns were shut when curfew was rung and arrested anyone on the street after curfew who had a weapon, for no one with a sword was allowed on the streets unless he was some great lord or other substantial person of good reputation. wards provided citizens to guard the gates in their respective neighborhood and keep its key. the city was so dense that nuisance was a common action brought in court, for instance, vegetable vendors near a church obstructing passageway on the street or plumbers melting their solder with a lower than usual shaft of the furnace so smoke was inhaled by people nearby. crime in london was rare. murder, burglary, highway robbery, and gross theft were punishable by hanging. forgery and fraud, were punishable by the placement in the pillory or stocks or by imprisonment. perjury was punished by confession from a high stool for the first offense, and the pillory for the second. slander and telling lies were punished by the pillory and wearing a whetstone around one's neck. there was an ordinance passed against prostitutes in . london as well as other port towns had not only prostitutes, but syphilis. prominent londoners sought to elevate their social position by having their family marry into rural landholding families of position. for poor boys with talent, the main routes for advancement were the church, the law, and positions in great households. many master freemasons, who carved freestone or finely grained sandstone and limestone artistically with mallet and chisel, left the country for better wages after their wages were fixed by statute. the curvilinear gothic style of architecture was replaced by the perpendicular style, which was simpler and cheaper to build. church steeples now had clocks on them with dials and hands to supplement the church bell ringing on the hour. alabaster was often used for sepulchral monuments instead of metal or stone. with it, closer portraiture could be achieved. in the s and s the london population suffered from tuberculosis, typhus, influenza, leprosy, dysentery, smallpox, diphtheria, measles, heart disease, fevers, coughs, cramps, catarrhs and cataracts, scabs, boils, tumors, and "burning agues". there were also many deaths by fires, burning by candles near straw beds when drunk, falling downstairs when drunk, and drowning in the river or wells. children were often crushed by carts, trampled by horses, or mauled by pigs. towns recognized surgery as a livelihood subject to admission and oath to serve the social good. master surgeons were admitted to practice in in london in full husting before the mayor and the aldermen and swore to: [ ] faithfully serve the people in undertaking their cures, [ ] take reasonably from them, [ ] faithfully follow their calling, [ ] present to the said mayor and aldermen the defaults of others undertaking, so often as should be necessary, [ ] to be ready, at all times when they should be warned, to attend the maimed or wounded and others, [ ] to give truthful information to the officers of the city as to such maimed, wounded, or others whether they be in peril of death or not, and [ ] to faithfully do all other things touching their calling. some young girls of good families were boarded at nunneries to be taught there. some upper class widows retired there. only women were allowed to be present at a birth, at which they spread the knowledge of midwifery. as usual, many women died giving birth. various ways to prevent pregnancy were tried. it was believed that a baby grew from a seed of the father planted in the woman's body. infant mortality was especially high in boroughs and burgess family lines usually died out. a three-generation family span was exceptional in the towns, despite family wealth. after the plague, gentlemen no longer had their children learn to speak norman. the grammar schools taught in english instead of norman as of . bishops began to preach in english. english became the official language of parliament, in , and in the courts, replacing norman and latin. the requirements of elementary and higher studies were adjusted in and began the public school system. william of wykeham's school, st. mary college of winchester in oxford was the prototype. the curriculum was civil law, canon law, medicine, with astronomical instruments that students made, theology, and the arts. the arts textbooks were still grammar, logic, donatus, and aristotle. many laymen were literate, for instance country gentry, merchants, and craftsmen. laymen instead of clerics were now appointed to the great offices of state. a will in in which a wealthy citizen arranges for one son to become an attorney and the other a merchant: "will of william de tonge, citizen of london: one hundred marks each to my two sons. and i will that my said two sons shall live upon the profits of the money bequeathed to them above until the age of twenty years. and if my said two sons be well learned in grammar and adorned with good manners, which shall be known at the end of twenty years, and the elder son wish to practice common law, and if it is known that he would spend his time well in that faculty, i will that over and above the profit of the said one hundred marks he shall have yearly from my rents for the term of seven years five marks. and if he should waste his time aforesaid, or if he should marry foolishly and unsuitably, i will that he receive nothing more of the said five marks. and if younger son wishes to attend the university of oxford or to establish himself well in the mystery of a merchant after the age of twenty years, and [if] there be knowledge of his praiseworthy progress in his faculty or his carefulness in trading ... i will that he shall receive five marks yearly in the manner described above for his maintenance, over and above the profit of the said one hundred marks to him bequeathed, for the space of seven years; and if he behave himself otherwise, i will that thereupon he be excluded from the said five marks. and in case the said bequest of marks to him and his brother shall be annulled so that he shall have nothing therefrom ... then the said marks shall be spent upon all the yearly chaplains who can be had to celebrate divine service in the church of all hallows for my soul." most great lords were literate. many stories described good men, who set an example to be followed, and bad men, whose habits were to be avoided. stories were written about pilgrimage vacations of ordinary people to religious sites in england. will langland's poem "the vision of william concerning piers plowman" portrays a pilgrimage of common people to the shrine of truth led by a virtuous laborer. mystics wrote practical advice with transcendental teaching, for instance "scale of perfection" attributed to walter hilton and "cloud of unknowing". richard rolle wrote about spiritual matters, probably the "prick of conscience". richard de bury wrote "philobiblon" about book lovers. jean froissart wrote the "chronicles" on knights. courtly ideals were expressed in "sir gawaine and the grene knyght", wherein the adventures of the hero, an arthur knight, are allegorical in the struggle against the world, the flesh, and the devil ( ). "pearl" eulogized all that is pure and innocent on the event of the death of a two year old child. marco polo's book of discoveries on his journey to china was known. geoffrey chaucer was a squire and diplomat of the king. his "tales of the canterbury pilgrims" portrayed characters of every social class, including the knight with his squire, abbot, prioress, nun, priest, monk, friar, poor parson of the country, summoner (who enforced the jurisdiction and levied the dues of the church courts), pardoner (sold pardons from the pope), scholar, attorney, doctor, merchant, sailor, franklin, yeoman, haberdasher, tapestry- maker, ploughman, cook, weaver, dyer, upholsterer, miller, reeve, carpenter. there were chaucer stories about a beautiful and virtuous wife disliked by her mother-in-law, the difficulty of marriage between people of different religions, the hatred of a poor person by his brother and his neighbor, rich merchants who visited other kingdoms, the importance of a man himself following the rules he sets for other people's behavior, the spite of a man for a woman who rejected him, the relative lack of enthusiasm of a wife for sex as compared to her husband, a mother giving up her own comfort for that of her child, the revenge killing of a murderer by the dead man's friends, the joy of seeing a loved one after years of separation, that life is more sad than happy, that lost money can be retrieved, but time lost is lost forever. other stories in the canterbury tales were about two men who did not remain friends after they fell in love with the same woman, about a child who preferred to learn from an older child than from his schoolteacher, about a wife who convinced her husband not to avenge her beating for the sake of peace, about a man who woke up from bad dreams full of fear, about a man wanting to marry a beautiful woman but later realizing a plain wife would not be pursued by other men, about a man who drank so much wine that he lost his mental and physical powers, about a woman who married for money instead of love, about a man who said something in frustration which he didn't mean, about a person brought up in poverty who endured adversity better than one brought up in wealth, about a wife who was loving and wise, about a good marriage being more valuable than money, about a virgin who committed suicide rather than be raped, about a wife persuaded to adultery by a man who said he would otherwise kill himself, about three men who found a pile of gold and murdered each other to take it all, about an angry man who wanted to kill, about a malicious man who had joy in seeing other men in trouble and misfortune, about a man whose face turned red in shame, about a wife expecting to have half of what her husband owned. political songs and poems were written about the evil times of king edward ii, the military triumphs of king edward iii, and the complaints of the poor against their oppressors, such as "song of the husbandman". john gower wrote moralizing poems on the villein's revolt, the sins of the clergy and attorneys, and the bad rule of king richard ii, who in succeeded edward iii. robin hood ballads were popular. the minstrel, who was a honorable person, replaced the troubadour of older times. there were many colleges at oxford and cambridge due to the prohibition of gifts to the church. laymen instead of ecclesiastics were appointed as chancellor. the masters at oxford got rid of ecclesiastical supervision by a bishop and archdeacon by . one could be admitted as a student at age thirteen. the rate of maintenance for a student was d. weekly. a bachelor of arts degree was granted after four years of study and an oral exam. required reading in for the bachelor's degree was the new logic of aristotle ("prior and posterior analytics" e.g. on syllogistic logic and deduction, the "topics", or the "sophistical refutations", e.g. logical fallacies such as from 'all a are b' to 'all b are a'), and a selection from these aristotle works on physics: "of heaven and earth", "on the soul", "of meteors", "of birth and decay", or "of feeling and what is felt" with "of memory and recollection" and "of sleep and waking", or "of the movement of animals" with "of minor points in natural history". a master of arts degree could be awarded after three more years of study and teaching. a doctorate degrees in theology required ten more years of study. a doctorate in civil or canon law required eight more years. a man with a degree in canon law who wanted to practice in a certain bishop's court had to first satisfy this bishop of his competence. another source of legal learning was in london, where the guilds gave rise to the inns of court. they used the register of writs, the case law of the year books, and disputation to teach their students. for a doctorate in medicine from oxford or cambridge, five more years plus two years of practice were required. surgery was not taught because it was considered manual labor, and there was some feeling that it was a sacrilege and dishonorable. urinalysis and pulse beat were used for diagnosis. epilepsy and apoplexy were understood as spasms inside the head. it was known what substances served as laxatives and diuretics. teeth were extracted, eye cataracts were removed with a silver needle, and skin from the arm was grafted onto a mutilated face. englishmen who had collected books on philosophy, medicine, astronomy, and history and literature books from the continent gave their collections to the universities, which started their libraries. paper supplemented parchment, so there were more books. england was still an agricultural rather than a manufacturing country. imported were cloth, silks, linen, velvets, furs, glass, wines, candles, millstones, amber, iron, and mercury. exported were wool, leather, lead, tin, and alabaster for sculpturing. merchant adventurers came to manufacture cloth good enough for export and began to buy up raw wool in such quantity that its export declined. they took their cloth abroad to sell, personally or by agents. an oxford theologian and preacher, john wyclif, voiced the popular resentment of the materialism of the church, benefit of clergy, immorality of priests, and the selling of indulgences and pardons. encouraged by the king, he argued against the supremacy of the papal law over the king's courts and against payments to the papacy. he opined that the church had no power to excommunicate. the friars had become mere beggars and the church was still wealthy. he proposed that all goods should be held in common by the righteous and that the church should hold no property but be entirely spiritual. he believed that people should rely on their individual consciences. he thought that the bible should be available to people who could read english so that the people could have a direct access to god without priests or the pope. towards this end, he translated it from latin into english in . his preachers spread his views throughout the country. the church then possessed about one-third of the land of the nation. parliament met about twice a year and lasted from two weeks to several months. there was a well-defined group of about fifty barons and a few spiritual peers who were always summoned to parliament and who composed a house of lords. "peer" now meant a member of the house of lords. all peers had the right to approach the king with advice. the baron peers reasoned that the custom of regular attendance was a right that should be inherited by the eldest son, or by a female heir, if there were no male heirs. however, the theory of nobility by blood as conveying political privilege had no legal recognition. no female could attend parliament; the husband of a baroness attended parliament in her stead. edward iii and richard ii created new peers with various titles of dignity, such as duke and marquess, which were above barons and earls. the dukes and marquesses were identified with a territorial designation such as an english county or county town. whenever a parliament was assembled the commons were present. the commons was composed of representatives from boroughs and counties. each new parliament required an election of representatives. the members of the commons were generally the most prominent and powerful economic and political figures of the county and were repeatedly reelected. the electors were usually influenced by the sheriff or a powerful lord who suggested suitable men. the wealthy merchants typically represented the boroughs and paid much of the taxes. under edward iii, the commons took a leading part in the granting of taxes and the presentation of petitions and became a permanent and distinct body, the house of commons, with a spokesman or "speaker", chosen by the crown, and a clerk. the speaker came to be an intermediary between the commons and the king and between the commons and the lords. a clerk of parliament registered its acts and sat with the lords. a clerk of the crown superintended the issue of writs and the receipt of the returns and attested the signature of the king on statutes. it became a regular practice for the chancellor to open parliament with an opportunity to present petitions after his opening speech. the king then referred them to certain peers and justices, who decided to which court, or parliament, they should be sent. during the s, the number of barons going to parliament gradually decreased. at the parliament, ("the good parliament") the commons, which formerly had only consented to taxes, took political action by complaining that the king's councilors had grown rich by war profiteering at the cost of impoverishing the nation and the people were too poor to endure any more taxation for the war and held a hearing on financial malfeasance and dishonesty of two ministers. the chamberlain had extorted enormous sums, had intercepted fines meant for the king's treasury, and had sold a castle to the enemy. the steward had bought debts of the king's. the house of lords, the high court of parliament, found the charges proved and dismissed them permanently from office. this established the constitutional means for impeachment and prosecution by the commons and removal by the house of lords of ministers. by this process, there could be no royal intimidation, as there could be in the ordinary courts. the commons demanded that its members be elected by county citizens rather than appointed by the sheriff. the roles of parliament and the king's council are starting to differentiate into legislative and executive, respectively. the legislative function is lawmaking, and the executive is regulation-making that refines and effectuates the laws of parliament. but the legislative, executive, and judicial authorities have not as yet become so completely separated that they cannot on occasion work together. sheriffs dealt directly with the king instead of through an earl. from to , resistance was an ordinary remedy for political disagreements. if a popular leader raised his standard in a popular cause, an irregular army could be assembled in a day. (there was no regular army, since england was protected by the sea from invasion.) so misgovernment by a king would be quickly restrained. society recovered quickly from conflict and civil war because the national wealth consisted chiefly in flocks and herds and in the simple buildings inhabited by the people. in a week after armed resistance, the agricultural worker was driving his team. there was little furniture, stock of shops, manufactured goods, or machinery that could be destroyed. to support a war with france, the staple was reinstated by statute of after an experiment without it in which profits of a staple went to staples outside the nation. wool exports were inspected for quality and taxed through his officials only at the designated staple ports. these officials included collectors, controllers, searchers [inspectors], surveyors, clerks, weighers, and crane-keepers. wool, woolfells, leather, and lead sold for export had to go through the staple town. the penalty was forfeiture of lands, tenements, goods, and chattel. the mayor and constables of the staple were elected annually by the native and foreign merchants of the place. the mayor gave validity to contracts for a set fee, by seal of his office. he and the constables had jurisdiction over all persons and things touching the staple, which was regulated by the law merchant in all matters of contract, covenant, debt, and felonies against foreign merchants. a hue and cry was required to be raised and followed for anyone taking a cart of merchandise or slaying a merchant, denizen [resident alien] or alien, or the town would answer for the robbery and damage done. in , calais, a continental town held by the english, became the staple town for lead, tin, cloth, and wool and was placed under a group of london capitalists: the merchants of the staple. all exports of these had to pass through calais, where customs tax was collected. the staple statute remained basically unchanged for the next years. guns and cannon were common by . in the s and s, the king relied on mercenaries hired directly or by contract with his great nobles for foreign wars. the king reimbursed the contractors with the profits of war, such as the ransoms paid by the families of rich prisoners. the fighting men supplemented their pay by plunder. featherbeds and blooded horses were favorite spoils of war brought back to england from the continent. as new techniques with footmen came into being, the footmen became the core of the army and the knightly abilities of the feudal tenants-in-chief became less valuable. many lords got men to fight with them by livery and maintenance employment agreements such as this one of : "bordeaux, february . this indenture, made between our lord king john [of gaunt, of castile, etc.] of the one part and symkyn molyneux, esquire, of the other part, witnesses that the said symkyn is retained and will remain with our said lord for peace and for war for the term of his life, as follows: that is to say, the said symkyn shall be bound to serve our said lord as well in time of peace as of war in whatsoever parts it shall please our said lord, well and fitly arrayed. and he shall be boarded as well in time of peace as of war. and he shall take for his fees by the year, as well in time of peace as of war, ten marks sterling from the issues of the duchy of lancaster by the hands of the receiver there who now is or shall be in time to come, at the terms of easter and michaelmas by even portions yearly for the whole of his life. and, moreover, our lord has granted to him by the year in time of war five marks sterling by the hands of the treasurer of war for the time being. and his year of war shall begin the day when he shall move from his inn towards our said lord by letters which shall be sent to him thereof, and thenceforward he shall take wages coming and returning by reasonable daily [payments] and he shall have fitting freightage for him, his men, horses, and other harness within reason, and in respect of his war horses taken and lost in the service of our said lord, and also in respect to prisoners and other profits of war taken or gained by him or any of his men, the said our lord will do to him as to other squires of his rank." forecastles and stern castles on ships were lower and broader. underneath them were cabins. the english ship was still single masted with a single square sail. a fleet was formed with over ships selected by the english admirals acting for the king at the ports. men were seized and pressed into service and criminals were pardoned from crimes to become sailors in the fleet, which was led by the king's ship. they used the superior longbow against the french sailor's crossbow. in , the tower of london had four mounted fortress cannon and the port of dover had six. the war's disruption of shipping caused trade to decline. but the better policing of the narrow seas made piracy almost disappear. english merchants may carry their merchandise in foreign ships if there are no english ships available. anyone may ship or carry grain out of the nation, except to enemies, after paying duties. but the council may restrain this passage when necessary for the good of the nation. any merchant, privy or stranger, who was robbed of goods on the sea or lost his ship by tempest or other misfortune on the sea banks, his goods coming to shore could not be declared wreck, but were to be delivered to the merchant after he proves ownership in court by his marks on the goods or by good and lawful merchants. all stakes and obstacles set up in rivers impeding the passage of boats shall be removed. waterpower was replacing foot power in driving the mills where cloth was cleaned and fulled. a boundary dispute between two barons resulted in the first true survey map. nine cow pastures were divided by a boundary marked by a shield on a pole which the commission of true and sworn men had set up. king richard ii, an irresponsible sovereign, asserted an absolute supremacy of the king over parliament and declared certain statutes which he claimed to have been forced on him to be revoked. he interfered with county elections of knights to parliament by directing sheriffs to return certain named persons. he wanted to dispense altogether with parliament and instead have a committee of representatives. he claimed that the goods of his subjects were his own and illegally taxed the counties. there were many disputes as to who should be his ministers. high treason was extended to include making a riot and rumor, compassing or purposing to depose the king, revoking one's homage or liege to the king, or attempting to repeal a statute. when henry bolingbroke reported to parliament that another lord had cast doubt on the king's trustworthiness, a duel between them was arranged. but richard, probably fearing the gain of power of the lord who won, instead exiled the two lords. he took possession of the lancaster estates to which bolingbroke was heir and forbade this inheritance. this made all propertied men anxious and they united behind bolingbroke in taking up arms against richard. richard was not a warrior king and offered to resign the crown. the "merciless parliament" of swept out richard's friends. parliament deposed and imprisoned richard. it revoked the extensions to the definition of high treason. it elected bolingbroke, who claimed to be a descendant of henry iii, to be king henry iv. this action established clearly that royal decrees were subordinate to parliamentary statutes, that parliament was the ultimate legal arbiter of the realm, and that the consent of parliament was necessary in determining kingship. the house of commons became very powerful. it was responsible for the major part of legislation. it's members began to assert the privilege of free speech. that is, they wanted to discuss other matters than what was on the king's agenda and they opposed punishment for what they said unless it was treasonable. henry iv agreed to their request not to consider reports of proceedings unless they came to him through official channels. the law high treason was defined by statute in as levying war against the king, aiding the king's enemies, compassing or imagining the death of the king, queen, or their eldest son and heir, or violating the queen or the eldest unmarried daughter or the wife of the king's eldest son and heir; making or knowingly using counterfeits of the king's great or privy seal or coinage; or slaying the chancellor, treasurer, or any justice in the exercise of their duty. the penalty was forfeit of life and lands. petty treason was defined by statute and included a servant slaying his master, a wife her husband, or a man his lord, to whom was owed faith and obedience. no one shall tell false news or lies about prelates, dukes, earls, barons, and other nobles and great men or the chancellor, treasurer, a justice, clerk of the privy seal, steward of the king's house whereby debates and discords might arise between these lords or between the lords and the commons. cases shall be tried by the king's council, which included the chancellor, treasurer, and chief justices. preachers drawing crowds by ingenious sermons and inciting them to riot shall be arrested by sheriffs and tried by the ecclesiastical court. any stranger passing at night of whom any have suspicion shall be arrested and taken to the sheriff. no man shall ride with a spear, upon pain of forfeiting it. no servant of agriculture or laborer shall carry any sword or dagger, or else forfeit it, except in time of war in defense of the nation. he may carry bow and arrow [for practice] on sundays and holy days, when he should not play games such as tennis, football, or dice. no one may enter another's land and tenements by strong hand nor with a mob, upon pain of imprisonment and ransom at the king's will. charters, releases, obligations, quitclaim deeds and other deeds burnt or destroyed in uprisings shall be reissued without fee, after trial by the king and his council. manumissions, obligations, releases and other bonds and feoffments in land made by force, coercion or duress during mob uprisings are void. men who rape and women consenting after a rape shall lose their inheritance and dower and joint feoffments. the husbands, or father or next of kin of such women may sue the rapist by inquisition, but not by trial by combat. the penalty is loss of life and member. the statute of laborers of required all workers, from tailors to ploughmen, to work only at pre-plague wage rates and forced the vagrant peasant to work for anyone who claimed him or her. it also encouraged longer terms of employment as in the past rather than for a day at a time. statutory price controls on food limited profits to reasonable ones according to the distance of the supply. later, wages were determined in each county by justices of the peace according to the dearth of victuals while allowing a victualer a reasonable profit and a penalty was specified as paying the value of the excess wages given or received for the first offense, double this for the second offense, and treble this or forty days imprisonment for the third offense. a fugitive laborer will be outlawed, and when found, shall be burnt in the forehead with the letter "f" for falsity. children who labored at the plough and cart or other agriculture shall continue in that labor and may not go into a craft. a statute of designed to stop hoarding various types of merchandise until a type became scarce so to sell it at high prices, required merchants to deal in only one type of merchandise. it also required craftsmen to work in only one craft as before (except women who traditionally did several types of handiwork). this was repealed a year later. where scarcity has made the price of poultry high, it shall be lowered to d. for a young capon, d. for an old capon or a goose, d. for a hen, and d. for a pullet. the fares for passage on boats on fresh waters and from dover to the continent shall remain at their old rate. any merchant selling at a fair after it has ended will forfeit to the king twice the value of that sold. anyone finding and proving cloth contrary to the assize of cloth shall have one-third of it for his labor. no shoemaker nor cordwainer shall tan their leather and no tanner shall make shoes, in order that tanning not be false or poorly done. all denizen [foreigner permitted to reside in the realm with certain rights and privileges] and alien merchants may buy and sell goods and merchandise, in gross, in any part of the country, despite town charters or franchises, to anyone except an enemy of the king. they may also sell small wares: victuals, fur, silk, coverchiefs [an item of woman's apparel], silver wire, and gold wire in retail, but not cloth or wine. they must sell their goods within three months of arrival. any alien bringing goods to the nation to sell must buy goods of the nation to the value of at least one-half that of his merchandise sold. these merchants must engage in no collusion to lower the price of merchandise bought, take merchandise bought to the staple, and promise to hold no staple beyond the sea for the same merchandise. an amendment disallowed denizens from taking wools, leather, woolfells, or lead for export, but only strangers. towns failing to bring disturbers of this right to justice shall forfeit their franchise to the king and pay double damages to the merchant. the disturber shall be imprisoned for a year. cloth may not be tacked nor folded for sale to merchants unless they are opened to the buyers for inspection, for instance for concealed inferior wool. workers, weavers, and fullers shall put their seals to every cloth. anyone may bring his own wools, woolfells, leather, and lead to the staple to sell without being compelled to sell them in the country. special streets or warehouses were appointed with warehouse rent fixed by the mayor and constables with four of the principal inhabitants. customs duties were regulated and machinery provided for their collection. no one may forestall or regrate, that is, buy at one price and sell at a higher price in the same locale. forestallers were those who bought raw material on its way to market. regrators were those who tried to create a "corner" in the article in the market itself. imported cloth shall be inspected by the king's officials for non- standard measurements or defects [despite town franchises]. no one shall leave the nation except at designated ports, on pain of one year's imprisonment. social distinctions by attire were mandated by statute of . a servant, his wife, son, or daughter, shall only wear cloth worth no more than s. and shall not have more than one dish of meat or fish a day. carters, ploughmen, drivers of the plough, oxherds, cowherds, shepherds, and all other people owning less than s. of goods and chattels shall only wear blanket and russet worth no more than d. and girdles of linen according to their estate. craftsmen and free peasants shall only wear cloth worth no more than s. esquires and gentlemen below the rank of knight with no land nor rent over , s. a year shall only wear cloth worth no more than s., no gold, silver, stone, fur, or the color purple. esquires with land up to , s. per year may wear s. cloth, cloth of silk and silver, miniver [grey squirrel] fur and stones, except stones on the head. merchants, citizens, burgesses, artificers, and people of handicraft having goods and chattels worth , s. shall wear cloth the same value as that worn by esquires and gentlemen with land or rent within , s. per year. the same merchants and burgesses with goods and chattels worth , s. and esquires and gentlemen with land or rent within s. per year may not wear gold cloth, miniver fur, ermine [white] fur, or embroidered stones. a knight with land or rents within , s. yearly are limited to cloth of s., but his wife may wear a stone on her head. knights and ladies with land or rents within , s. to , s. yearly may not wear fur of ermine or of letuse, but may wear gold, and such ladies may wear pearls as well as stones on their heads. the penalty is forfeiture of such apparel. this statute is necessary because of "outrageous and excessive apparel of diverse persons against their estate and degree, to the great destruction and impoverishment of all the land". if anyone finds a hawk [used to hunt birds, ducks, and pheasant] that a lord has lost, he must take it to the sheriff for keeping for the lord to claim. if there is no claim after four months, the finder may have it only if he is a gentleman. if one steals a hawk from a lord or conceals from him the fact that it has been found, he shall pay the price of the hawk and be imprisoned for two years. no laborer or any other man who does not have lands and tenements of the value of s. per year shall keep a greyhound or other hound or dog to hunt, nor shall they use nets or cords or other devices to take deer, hare, rabbits, nor other gentlemen's game, upon pain of one year imprisonment. (the rabbit had been introduced by the normans.) this law was primarily intended to stop the meetings of laborers and artificers. no man shall eat more than two courses of meat or fish in his house or elsewhere, except at festivals, when three are allowed [because great men ate costly meats to excess and the lesser people were thereby impoverished]. no one may export silver, whether bullion or coinage, or wine except foreign merchants may carry back the portion of their money not used to buy english commodities. the penalty for bringing false or counterfeit money into the nation is loss of life and member. an assigned searcher [inspector] for coinage of the nation on the sea passing out of the nation or bad money in the nation shall have one third of it. no foreign money may be used in the nation. each goldsmith shall have an identifying mark, which shall be placed on his vessel or work only after inspection by the king's surveyor. no one shall give anything to a beggar who is capable of working. vagrants begging in london were banned by this ordinance: "forasmuch as many men and women, and others, of divers counties, who might work, to the help of the common people, have betaken themselves from out of their own country to the city of london and do go about begging there so as to have their own ease and repose, not wishing to labor or work for their sustenance, to the great damage of the common people; and also do waste divers alms which would otherwise be given to many poor folks, such as lepers, blind, halt, and persons oppressed with old age and divers other maladies, to the destruction of the support of the same - we do command on behalf of our lord the king, whom may god preserve and bless, that all those who go about begging in the said city and who are able to labor and work for the profit of the common people shall quit the said city between now and monday next ensuing. and if any such shall be found begging after the day aforesaid, the same shall be taken and put in the stocks on cornhill for half a day the first time, and the second time he shall remain in the stocks one whole day, and the third time he shall be taken and shall remain in prison for forty days and shall then forswear the said city forever. and every constable and the beadle of every ward of the said city shall be empowered to arrest such manner of folks and to put them in the stocks in manner aforesaid." the hundred year cry to "let the king live on his own" found fruition in a statute requiring consent of the parliament before any commission of array for militia could be taken and a statute requiring purchases of goods and means of conveyance for the king and his household to be made only by agreement with the seller and with payment to him before the king traveled on, instead of at the low prices determined unilaterally by the king's purveyor. every man who has wood within the forest may take houseboot [right to take wood for repair of one's house] and heyboot [right to take material for the maintenance of hedges and fences, and the making of farming utensils] in his wood without being arrested so long as it take such within the view of the foresters. no fecal matter, dung, garbage, or entrails of animals killed shall be put into ditches or rivers or other waters, so that maladies and diseases will not be caused by corrupted and infected air. the penalty is s. to the king after trial by the chancellor. gifts or alienation of land to guilds, fraternities, or towns are forbidden. instead, it escheats to its lord, or in his default, to the king. no man will be charged to go out of his county to do military service except in case of an enemy invasion of the nation. men who chose to go into the king's service outside the nation shall be paid wages by the king until their return. admiralty law came into being when ancient naval manners and customs were written down as the "black book of the admiralty". this included the organization of the fleet under the admiral, sea-maneuver rules such as not laying anchor until the admiral's ship had, engagement rules, and the distribution of captured goods: one-fourth to the vessel owner, one-fourth to the king if the seamen were paid by the king's wages, and the rest divided among the crew and admiral. stealing a boat or an anchor holding a boat was punishable by hanging. stealing an oar or an anchor was punishable by forty days imprisonment for the first offense, six months imprisonment for the second, and hanging for the third. desertion was punishable by loss of double the amount of wages earned and imprisonment for one year. cases were tried by jury in the admiral's court. wines, vinegar, oil and honey imported shall be gauged by the king's appointees. judicial procedure the office of justice of the peace was developed and filled by knights, esquires and gentlemen who were closely associated with the magnates. there was no salary nor any requirement of knowledge of the law. they were to pursue, restrain, arrest, imprison, try, and duly punish felons, trespassers, and rioters according to the law. they were expected to arrest vagrants who would not work and imprison them until sureties for good behavior was found for them. they also were empowered to inspect weights and measures. the writ of trespass developed into three kinds according to the type of injury: to person, land, or chattels. trespass included forcible offenses of assault and battery, false imprisonment, breaking of a fence enclosing private property, and taking away goods and chattels. the action of trespass was replacing private suits for murder and for personal injury. pardons may be given only for slaying another in one's own defense or by misfortune [accident], and not for slaying by lying in wait, assault, or malice aforethought. justices of assize, sheriffs, and justices of the peace and mayors shall have power to inquire of all vagabonds and compel them to find surety of their good bearing or be imprisoned. a reversioner shall be received in court to defend his right when a tenant for a term of life, tenant in dower, or by curtesy of the nation, or in [fee] tail after possibility of issue extinct are sued in court for the land, so as to prevent collusion by the demandants. a person in debt may not avoid his creditors by giving his tenements or chattels to his friends in collusion to have the profits at his will. where there was a garnishment given touching a plea of land, a writ of deceit is also maintainable. actions of debt will be heard only in the county where the contract was made. the action of debt includes enforcement of contracts executed or under seal, e.g. rent due on a lease, hire of an archer, contract of sale or repair of an item. thus there is a growing connection between the actions of debt and contract. executors have an action for trespass to their testators' goods and chattels in like manner as did the testator when alive. if a man dies intestate, his goods shall be administered by his next and most lawful friends appointed. such administrators shall have the same powers and duties as executors and be accountable as are executors to the ecclesiastical court. children born to english parents in parts beyond the sea may inherit from their ancestors in the same manner as those born in the nation. a person grieved by a false oath in a town court proceeding may appeal to the king's bench or common pleas, regardless of any town franchise. it was exceptional for the king to sit on the court of the king's bench, which worked independently of the king and became confined to the established common law. the court of common pleas had three types of jurisdiction: ) common law jurisdiction between person and person, including actions regarding land, which was exclusive, ) personal actions of debt, detinue, account and covenant, and ) mixed actions, both personal and regarding land, e.g. ejectment. it had shared jurisdiction with the court of the king's bench in maintenance, conspiracy, other breaches of statute, trespass, trespass on the case, and their derivatives. most of its business had to do with recovery of debt, from s. to thousands of pounds. the king's bench and common pleas courts vied with each other for cases in order to get more profits of justice. grand juries were summoned by the sheriff to decide whether, on the evidence of the prosecution, there was a case to go to trial. the petty or trial jury heard all parties to a lawsuit and determined the facts. in a statute required that no member of a grand jury could sit on a petty jury if so challenged by the accused. decisions of the common law courts are appealable to the house of lords. the king's council members who are not peers, in particular the justices and the masters of the chancery, are summoned by the house of lords only as mere assistants. parliament may change the common law by statute. the right of a peer to be tried for capital crimes by a court composed of his peers was established. there was a widespread belief that all the peers are by right the king's councilors. no attorney may practice law and also be a justice of assize. no justice may take any gift except from the king nor give counsel to any litigant before him. in , there was a statute against maintainers, instigators, barretors, procurers, and embracers of quarrels and inquests because of great and outrageous oppressions of parties in court. because this encouraged maintenance by the retinue of lords with fees, robes, and other liveries, such maintainers were to be put out of their lords' service, and could not be retained by another lord. no one was to give livery to anyone else, except household members and those retained for life for peace or for war. justices of the peace were authorized to inquire about yeomen, or other of lower estate than squire, bearing livery of any lord. whereas it is contained in the magna carta that none shall be imprisoned nor put out of his freehold, nor of his franchises nor free custom, unless it be by the law of the land; it is established that from henceforth none shall be taken by petition or suggestion made to the king unless by indictment of good and lawful people of the same neighborhood where such deeds be done, in due manner, or by process made by writ original at the common law; nor that none be out of his franchise, nor of his freeholds, unless he be duly brought into answer and before judges of the same by the course of law. the chancery came to have a separate and independent equitable jurisdiction. it heard petitions of misconduct of government officials or of powerful oppressors, fraud, accident, abuse of trust, wardship of infants, dower, and rent charges. because the common law and its procedures had become technical and rigid, the chancery was given equity jurisdiction by statute in . king edward iii proclaimed that petitions for remedies that the common law didn't cover be addressed to the chancellor, who was not bound by established law, but could do equity. in chancery, if there is a case that is similar to a case for which there is a writ, but is not in technical conformity with the requirements of the common law for a remedy, then a new writ may be made for that case by the chancellor. these were "actions on the case". also, parliament may create new remedies. there were so many cases that were similar to a case with no remedy specified in the common law, that litigants were flowing into the chancery. the chancellor gave swift and equitable relief, which was summary. the chancery court had no jury. with the backing of the council, the chancellor made decisions implementing the policy of the statute of laborers. most of these concerned occupational competency, for instance negligent activity of carriers, builders, shepherds, doctors, cloth workers, smiths, innkeepers, and gaolers. for instance, the common law action of detinue could force return of cloth bailed for fulling or sheep bailed for pasturing, but could not address damages due to faulty work. the chancellor addressed issues of loss of wool, dead lambs, and damaged sheep, as well as dead sheep. he imposed a legal duty on innkeepers to prevent injury or damage to a patron or his goods from third parties. a dog bite or other damage by a dog known by its owner to be vicious was made a more serious offense than general damage by any dog. a person starting a fire was given a duty to prevent the fire from damaging property of others. the king will fine instead of seize the land of his tenants who sell or alienate their land, such fine to be determined by the chancellor by due process. the chancery is now a court side by side with the common law courts of common pleas, king's bench, and exchequer. only barons who were peers of the house of lords were entitled to trial in the house of lords. in practice, however, this pertained only to major crimes. treason was tried by the lords in parliament, by bill of "attainder". it was often used for political purposes. most attainders were reversed as a term of peace made between competing factions. attorneys presided over manorial courts and made decisions with or without the villeins in attendance based on the custom of the manor. the king's coroner and a murderer who had taken sanctuary in a church often agreed to the penalty of confession and perpetual banishment from the nation as follows: "memorandum that on july , [ ], henry de roseye abjured the realm of england before john bernard, the king's coroner, at the church of tendale in the county of kent in form following: 'hear this, o lord the coroner, that i, henry de roseye, have stolen an ox and a cow of the widow of john welsshe of retherfeld; and i have stolen eighteen beasts from divers men in the said county. and i acknowledge that i have feloniously killed roger le swan in the town of strete in the hundred of strete in the rape [a division of a county] of lewes and that i am a felon of the lord king of england. and because i have committed many ill deeds and thefts in his land, i abjure the land of the lord edward king of england, and [i acknowledge] that i ought to hasten to the port of hastings, which thou hast given me, and that i ought not to depart from the way, and if i do so i am willing to be taken as a thief and felon of the lord king, and that at hastings i will diligently seek passage, and that i will not wait there save for the flood and one ebb if i can have passage; and if i cannot have passage within that period, i will go up to the knees into the sea every day, endeavoring to cross; and unless i can do so within forty days, i will return at once to the church, as a thief and a felon of the lord king, so help me god." property damage by a tenant of a london building was assessed in a case: "john parker, butcher, was summoned to answer clement spray in a plea of trespass, wherein the latter complained that the said john, who had hired a tavern at the corner of st. martin- le-grand from him for fifteen months, had committed waste and damage therein, although by the custom of the city no tenant for a term of years was entitled to destroy any portion of the buildings or fixtures let to him. he alleged that the defendant had taken down the door post of the tavern and also of the shop, the boarded door of a partition of the tavern, a seat in the tavern, a plastered partition wall, the stone flooring in the chamber, the hearth of the kitchen, and the mantelpiece above it, a partition in the kitchen, two doors and other partitions, of a total value of s. four pounds, s. d., and to his damage, s. [ pounds]. the defendant denied the trespass and put himself on the country. afterwards a jury [panel]... found the defendant guilty of the aforesaid trespass to the plaintiff's damage, d. judgment was given for that amount and a fine of s. to the king, which the defendant paid immediately in court." the innkeeper's duty to safeguard the person and property of his lodgers was applied in this case: "john trentedeus of southwark was summoned to answer william latymer touching a plea why, whereas according to the law and custom of the realm of england, innkeepers who keep a common inn are bound to keep safely by day and by night without reduction or loss men who are passing through the parts where such inns are and lodging their goods within those inns, so that, by default of the innkeepers or their servants, no damage should in any way happen to such their guests ... on monday after the feast of the purification of the virgin mary in the fourth year of the now king by default of the said john, certain malefactors took and carried away two small portable chests with s. and also with charters and writings, to wit two writings obligatory, in the one of which is contained that a certain robert bour is bound to the said william in , s. and in the other that a certain john pusele is bound to the same william in s. pounds ... and with other muniments [writings defending claims or rights] of the same william, to wit his return of all the writs of the lord king for the counties of somerset and dorset, whereof the same william was then sheriff, for the morrow of the purification of the blessed mary the virgin in the year aforesaid, as well before the same lord the king in his chancery and in his bench as before the justices of the king's common bench and his barons of his exchequer, returnable at westminster on the said morrow, and likewise the rolls of the court of cranestock for all the courts held there from the first year of the reign of the said lord the king until the said monday, contained in the same chests being lodged within the inn of the same john at southwark and the said john ... says that on the said monday about the second hour after noon the said william entered his inn to be lodged there, and at once when he entered, the same john assigned to the said william a certain chamber being in that inn, fitting for his rank, with a door and a lock affixed to the same door with sufficient nails, so that he should lie there and put and keep his things there, and delivered to the said william the key to the door of the said chamber, which chamber the said william accepted... william says that ... when the said john had delivered to him the said chamber and key as above, the same william, being occupied about divers businesses to be done in the city of london, went out from the said inn into the city to expedite the said businesses and handed over the key of the door to a certain servant of the said william to take care of in meantime, ordering the servant to remain in the inn meanwhile and to take care of his horses there; and afterwards, when night was falling, the same william being in the city and the key still in the keeping of the said servant, the wife of the said john called unto her into her hall the said servant who had the key, giving him food and drink with a merry countenance and asking him divers questions and occupying him thus for a long time, until the staple of the lock of the door aforesaid was thrust on one side out of its right place and the door of the chamber was thereby opened and his goods, being in the inn of the said john, were taken and carried off by the said malefactors ... the said john says ...[that his wife did not call the servant into the hall, but that] when the said servant came into the said hall and asked his wife for bread and ale and other necessaries to be brought to the said chamber of his master, his wife immediately and without delay delivered to the same servant the things for which he asked ... protesting that no goods of the same william in the said inn were carried away by the said john his servant or any strange malefactors other than the persons of the household of the said william." on the coram rege roll of is a case on the issue of whether a court crier can be seized by officers of a staple: "edmund hikelyng, 'crier', sues william baddele and wife maud, john olney, and william knyghtbrugge for assault and imprisonment at westminster, attacking him with a stick and imprisoning him for one hour on wednesday before st. martin, richard ii. baddele says mark faire of winchester was prosecuting a bill of debt for s. against edmund and john more before william brampton, mayor of the staple of westminster, and thomas alby and william askham, constables of the said staple, and on that day the mayor and the constables issued a writ of capias against edmund and john to answer mark and be before the mayor and the constables at the next court. this writ was delivered to baddele as sergeant of the staple, and by virtue of it he took and imprisoned edmund in the staple. maud and the others say they aided baddele by virtue of the said writ. edmund does not acknowledge baddele to be sergeant of the staple or mark a merchant of the staple or that he was taken in the staple. he is minister of the king's court of his bench and is crier under thomas thorne, the chief crier, his master. every servant of the court is under special protection while doing his duty or on his way to do it. on the day in question, he was at westminster carrying his master's staff of office before hugh huls, one of the king's justices, and william took him in the presence of the said justice and imprisoned him. the case is adjourned for consideration from hilary to easter." a law of equity began to be developed from decisions by the chancellor in his court of conscience from around . one such case was that of godwyne v. profyt sometime after . this petition was made to the chancellor: to the most reverend father in god, and most gracious lord, the bishop of exeter, chancellor of england. thomas godwyne and joan his wife, late wife of peter at more of southwerk, most humbly beseech that, whereas at michaelmas in the th year of our most excellent lord king richard who now is, the said peter at more in his lifetime enfeoffed thomas profyt parson of st. george's church southwerk, richard saundre, and john denewey, in a tenement with the appurtenances situated in southwerk and acres of land acres of meadow in the said parish of st. george and in the parish of our lady of newington, on the conditions following, to wit, that the said three feoffees should, immediately after the death of the said peter, enfeoff the said joan in all the said lands and tenements with all their appurtenances for the life of the said joan, with remainder after her decease to one nicholas at more, brother of the said peter, to hold to him and the heirs of his body begotten, and for default of issue, then to be sold by four worthy people of the said parish, and the money to be received for the same to be given to holy church for his soul; whereupon the said peter died. and after his death two of the said feoffees, richard and john, by the procurement of one john solas, released all their estate in the said lands and tenements to the said thomas profyt, on the said conditions, out of the great trust that they had in the said thomas profyt, who was their confessor, that he would perform the will of the said peter [at more] in the form aforesaid; and this well and lawfully to do the said thomas profyt swore on his verbum dei and to perform the said conditions on all points. and since the release was so made, the said thomas profyt, through the scheming and false covin of the said john solas, has sold all the lands and tenements aforesaid to the same john solas for ever. and the said john solas is bound to the said thomas profyt in pounds by a bond to make defense of the said lands and tenements by the bribery and maintenance against every one; and so by their false interpretation and conspiracy the said joan, nicholas, and holy church are like to be disinherited and put out of their estate and right, as is abovesaid, for ever, tortiously, against the said conditions, and contrary to the will of the said peter [at more]. may it please your most righteous lordship to command the said thomas profyt, richard saundre, and john denewy to come before you, and to examine them to tell the truth of all the said matter, so that the said joan, who has not the wherewithal to live, may have her right in the said lands and tenements, as by the examination before you, most gracious lord, shall be found and proved; for god and in way of holy charity. chapter the times: - this period, which begins with the reign of the usurper king, henry iv, is dominated by war: the last half of the year war with france, which, with the help of joan of arc, took all english land on the continent except the port of calais, and the war of the roses over the throne in england. the ongoing border fights with wales and scotland were fought by england's feudal army. but for fighting in france, the king paid barons and earls to raise their own fighting forces. when they returned to england, they fought to put their candidate on its throne, which had been unsteady since its usurpation by henry iv. all the great houses kept bands of armed retainers. these retainers were given land or pay or both as well as liveries [uniforms or badges] bearing the family crest. in the system of "livery and maintenance", if the retainer was harassed by the law or by enemies, the lord protected him. the liveries became the badges of the factions engaged in the war of the roses. the white rose was worn by the supporters of the house of york, and the red rose by supporters of the house of lancaster. great lords fought each other for property and made forcible entries usurping private property. nobles employed men who had returned from fighting in war to use their fighting skill in local defense.henry iv was the last true warrior king. in both wars, the musket was used as well as the longbow. to use it, powder was put into the barrel, then a ball rammed down the barrel with a rod, and then the powder lit by a hot rod held with one hand while the other hand was used to aim the musket. cannon were used to besiege castles and destroy their walls, so many castles were allowed to deteriorate. the existence of cannon also limited the usefulness of town walls for defense. but townspeople did not take part in the fighting. since the power of the throne changed from one faction to another, political and personal vindictiveness gave rise to many bills of attainder that resulted in lords being beheaded and losing their lands to the king. however, these were done by the form of law; there were no secret executions in england. families engaged in blood feuds. roving bands ravaged the country, plundering the people, holding the forests, and robbing collectors of crown revenue. some men made a living by fighting for others in quarrels. individual life and property were insecure. whole districts were in a permanent alarm of riot and robbery. the roads were not safe. there was fighting between lords and gangs of ruffians holding the roads, breaking into and seizing manor houses, and openly committing murders. peace was never well-kept nor was law ever well-executed, though fighting was suspended by agreement during the harvest. local administration was paralyzed by party faction or lodged in some great lord or some clique of courtiers. the elections of members to parliament were interfered with and parliament was rarely held. barons and earls fought their disputes in the field rather than in the royal courts. litigation was expensive, so men relied increasingly on the protection of the great men of their neighborhood and less on the king's courts for the safety of their lives and land. local men involved in court functions usually owed allegiance to a lord which compromised the exercise of justice. men serving in an assize often lied to please their lord instead of telling the truth. lords maintained, supported, or promoted litigation with money or aid supplied to one party to the detriment of justice. it was not unusual for lords to attend court with a great force of retainers behind them. many justices of the peace wore liveries of magnates and accepted money from them. royal justices were flouted or bribed. the king's writ was denied or perverted. for - s., a lord could have the king instruct his sheriff to impanel a jury which would find in his favor. a statute against riots, forcible entries, and, excepting the king, magnates' liveries of uniform, food, and badges to their retainers, except in war outside the nation, was passed, but was difficult to enforce because the offenders were lords, who dominated the parliament and the council. with men so often gone to fight, their wives managed the household alone. the typical wife had maidens of equal class to whom she taught household management, spinning, weaving, carding wool with iron wool-combs, heckling flax, embroidery, and making garments. there were foot-treadles for spinning wheels. she taught the children. each day she scheduled the activities of the household including music, conversation, dancing, chess, reading, playing ball, and gathering flowers. she organized picnics, rode horseback and went hunting, hawking to get birds, and hare-ferreting. she was nurse to all around her. if her husband died, she usually continued to manage the household because most men named their wife as executor of their will with full power to act as she thought best. the wives of barons shared their right of immunity from arrest by the processes of common law and to be tried by their peers. for ladies, close-fitting jackets came to be worn over close- fitting long gowns with low, square-cut necklines and flowing sleeves, under which was worn a girdle or corset of stout linen reinforced by stiff leather or even iron. her skirt was provocatively slit from knee to ankle. all her hair was confined by a hair net. headdresses were very elaborate and heavy, trailing streamers of linen. some were in the shape of hearts, butterflies, crescents, double horns, steeples, or long cones. men also wore hats rather than hoods. they wore huge hats of velvet, fur, or leather. their hair was cut into a cap-like shape on their heads, and later was shoulder-length. they wore doublets with thick padding over the shoulders or short tunics over the trucks of their bodies and tightened at the waist to emphasize the shoulders. their collars were high. their sleeves were long concoctions of velvet, damask, and satin, sometimes worn wrapped around their arms in layers. their legs and hips were covered with hosen, often in different colors. codpieces worn between the legs emphasized the sensuality of the age as did ladies' tight and low- cut gowns. men's shoes were pointed with upward pikes at the toes that impeded walking. at another time, their shoes were broad with blunt toes. both men and women wore much jewelry and ornamentation. but, despite the fancy dress, the overall mood was a macabre preoccupation with mortality, despair, and a lack of confidence in the future. cannon and mercenaries had reduced the military significance of knighthood, so its chivalric code deteriorated into surface politeness, ostentation, and extravagance. master and servants ceased to eat together in the same hall, except for great occasions, on feast days, and for plays. the lord, and his lady, family, and guests took their meals in a great chamber, usually up beneath the roof next to the upper floor of the great hall. the chimney-pieces and windows were often richly decorated with paneled stonework, tracery and carving. there was often a bay or oriel window with still expensive glass. tapestries, damask, and tablecloths covered the tables. the standard number of meals was three: breakfast, dinner, and supper. there was much formality and ceremonial ritual, more elaborate than before, during dinners at manorial households, including processions bringing and serving courses, and bowing, kneeling, and curtseying. there were many courses of a variety of meats, fish, stews, and soups, with a variety of spices and elaborately cooked. barons, knights, and their ladies sat to the right of the lord above the salt and were served by the lord's sewer [served the food] and carver and gentlemen waiters; their social inferiors such as "gentlemen of worship" sat below the salt and were served by another sewer and yeomen. the lord's cupbearer looked after the lord alone. a knights' table was waited on by yeomen. the gentlemen officers, gentlemen servants and yeomen officers were waited on by their own servants. the amount of food dished out to each person varied according to his rank. the almoner said grace and distributed the leftovers to the poor gathered at the gate. the superior people's hands were washed by their inferiors. lastly, the trestle tables were removed while sweet wine and spices were consumed standing. then the musicians were called into the hall and dancing began. the lord usually slept in a great bed in this room. the diet of an ordinary family such as that of a small shopholder or yeoman farmer included beef, mutton, pork, a variety of fish, both fresh and salted, venison, nuts, peas, oatmeal, honey, grapes, apples, pears, and fresh vegetables. cattle and sheep were driven from wales to english markets. this droving lasted for five centuries. many types of people besides the nobility and knights now had property and thus were considered gentry: female lines of the nobility, merchants and their sons, attorneys, auditors, squires, and peasant-yeomen. the burgess grew rich as the knight dropped lower. the great merchants lived in mansions which could occupy whole blocks. in towns these mansions were entered through a gate through a row of shops on the street.typically, there would be an oak-paneled great hall, with adjoining kitchen, pantry, and buttery on one end and a great parlor to receive guests, bedrooms, wardrobes, servants' rooms, and a chapel on the other end or on a second floor. a lesser dwelling would have these rooms on three floors over a shop on the first floor. an average londoner would have a shop, a storeroom, a hall, a kitchen, and a buttery on the first floor, and three bedrooms on the second floor. artisans and shopkeepers of more modest means lived in rows of dwellings, each with a shop and small storage room on the first floor, and a combination parlor-bedroom on the second floor. the humblest residents crowded their shop and family into one by foot room for rent of a few shillings a year. all except the last would also have a small garden. the best gardens had a fruit tree, herbs, flowers, a well, and a latrine area. there were common and public privies for those without their own. kitchen slops and casual refuse continued to be thrown into the street. floors of stone or planks were strewn with rushes. there was some tile flooring. most dwellings had glass windows. candles were used for lighting at night. torches and oil-burning lanterns were portable lights. furnishings were still sparse. men sat on benches or joint stools and women sat on cushions on the floor. hall and parlor had a table and benches and perhaps one chair. bedrooms had beds that were surrounded by heavy draperies to keep out cold drafts. the beds had pillows, blankets, and sheets. clothes were stored in a chest, sometimes with sweet-smelling herbs such as lavender, rosemary, and southernwood. better homes had wall hanging and cupboards displaying plate. laundresses washed clothes in the streams, rivers, and public conduits. country peasants still lived in wood, straw, and mud huts with earth floors and a smoky hearth in the center or a kitchen area under the eaves of the hut. in , bricks began to be manufactured in the nation and so there was more use of bricks in buildings. chimneys were introduced into manor houses where stone had been too expensive. this was necessary if a second floor was added, so the smoke would not damage the floor above it and would eventually go out of the house. nobles and their retinue moved from manor to manor, as they had for centuries, to keep watch upon their lands and to consume the produce thereof; it was easier to bring the household to the estate than to transport the yield of the estate to the household. also, at regular intervals sewage had to be removed from the cellar pits. often a footman walked or ran on foot next to his master or mistress when they rode out on horseback or in a carriage. he was there primarily for prestige. jousting tournaments were held for entertainment purposes only and were followed by banquets of several courses of food served on dishes of gold, silver, pewter, or wood on a linen cloth covering the table. hands were washed before and after the meal. people washed their faces every morning after getting up. teeth were cleaned with powders. fragrant leaves were chewed for bad breath. garlic was used for indigestion and other ailments. feet were rubbed with salt and vinegar to remove calluses. good manners included not slumping against a post, fidgeting, sticking one's finger into one's nose, putting one's hands into one's hose to scratch the privy parts, spitting over the table or too far, licking one's plate, picking one's teeth, breathing stinking breath into the face of the lord, blowing on one's food, stuffing masses of bread into one's mouth, scratching one's head, loosening one's girdle to belch, and probing one's teeth with a knife. fishing and hunting were reserved for the nobility rather than just the king. as many lords became less wealthy because of the cost of war, some peasants, villein and free, became prosperous, especially those who also worked at a craft, e.g. butchers, bakers, smiths, shoemakers, tailors, carpenters, and cloth workers. an agricultural slump caused poorer soils to fall back into waste. the better soils were leased by peasants, who, with their families, were in a better position to farm it than a great lord, who found it hard to hire laborers at a reasonable cost. further, peasants' sheep, hens, pigs, ducks, goats, cattle, bees, and crop made them almost self-sufficient in foodstuffs. they lived in a huddle of cottages, pastured their animals on common land, and used common meadows for haymaking. they subsisted mainly on boiled bacon, an occasional chicken, worts and beans grown in the cottage garden, and cereals. they wore fine wool cloth in all their apparel. brimless hats were replacing hoods. they had an abundance of bed coverings in their houses. and they had more free time. village entertainment included traveling jesters, acrobats, musicians, and bear-baiters. playing games and gambling were popular pastimes. most villeins were now being called "customary tenants" or "copy- holders" of land because they held their acres by a copy of the court-roll of the manor, which listed the number of teams, the fines, the reliefs, and the services due to the lord for each landholder. the chancery court interpreted many of these documents to include rights of inheritance. the common law courts followed the lead of the chancery and held that marriage land could be inherited as was land at common law. evictions by lords decreased. the difference between villein and freeman lessened but landlords usually still had profits of villein bondage, such as heriot, merchet, and chevage. social mobility was most possible in the towns, where distinctions were usually only of wealth. so a poor apprentice could aspire to become a master, a member of the livery of his company, a member of the council, an alderman, a mayor, and then an esquire for life. the distance between baron and a country knight and between a yeoman and knight was wider. manor custom was strong. but a yeoman could give his sons a chance to become gentlemen by entering them in a trade in a town, sending them to university, or to war. every freeman was to some extent a soldier, and to some extent a lawyer, serving in the county or borough courts. a burgess, with his workshop or warehouse, was trained in warlike exercises, and he could keep his own accounts, and make his own will and other legal documents, with the aid of a scrivener or a chaplain, who could supply an outline of form. but law was growing as a profession. old-established london families began to choose the law as a profession for their sons, in preference to an apprenticeship in trade. many borough burgesses in parliament were attorneys. a class of laborers was arising who depended entirely on the wages of industry for their subsistence. the cloth workers in rural areas were isolated and weak and often at the mercy of middlemen for employment and the amount of their wages. when rural laborers went to towns to seek employment in the new industries, they would work at first for any rate. this deepened the cleavage of the classes in the towns. the artificers in the town and the cottagers and laborers in the country lived from hand to mouth, on the edge of survival, but better off than the old, the diseased, the widows, and the orphans. however, the s were the most prosperous time for laborers considering their wages and the prices of food. meat and poultry were plentiful and grain prices low. in london, shopkeepers appealed to passersby to buy their goods, sometimes even seizing people by the sleeve. the drapers had several roomy shops containing shelves piled with cloths of all colors and grades, tapestries, pillows, blankets, bed draperies, and "bankers and dorsers" to soften hard wooden benches. a rear storeroom held more cloth for import or export. many shops of skinners were on fur row. there were shops of leather sellers, hosiers, gold and silver cups, and silks. at the stocks market were fishmongers, butchers, and poulterers. london grocers imported spices, canvas, ropery, potions, unguents, soap, confections, garlic, cabbages, onions, apples, oranges, almonds, figs, dates, raisins, dyestuffs, woad, madder (plant for medicine and dye), scarlet grains, saffron, iron, and a primitive steel. they were retailers as well as wholesalers and had shops selling honey, licorice, salt, vinegar, rice, sugar loaves, syrups, spices, garden seeds, dyes, alum, soap, brimstone, paper, varnish, canvas, rope, musk, incense, treacle of genoa, and mercury. the grocers did some money lending, usually at % interest. the guilds did not restrict themselves to dealing in the goods for which they had a right of inspection, and so many dealt in wine that it was a medium of exchange. there was no sharp distinction between retail and wholesale trading. london grocers sold herbs for medicinal as well as eating purposes. breadcarts sold penny wheat loaves. foreigners set up stalls on certain days of the week to sell meat, canvas, linen, cloth, ironmongery, and lead. there were great houses, churches, monasteries, inns, guildhalls, warehouses, and the king's beam for weighing wool to be exported. in , the guildhall of london was built through contributions, proceeds of fines, and lastly, to finish it, special fees imposed on apprenticeships, deeds, wills, and letters-patent. the mercers and goldsmiths were in the prosperous part of town. the goldsmiths' shops sold gold and silver plate, jewels, rings, water pitchers, drinking goblets, basins to hold water for the hands, and covered saltcellars. the grain market was on cornhill. halfway up the street, there was a supply of water which had been brought up in pipes. on the top of the hill was a cage where riotous folk had been incarcerated by the night watch and the stocks and pillory, where fraudulent schemers were exposed to ridicule. no work was to be done on sundays, but some did work surreptitiously. the barbers kept their shops open in defiance of the church. outside the london city walls were tenements, the smithfield cattle market, westminster hall, green fields of crops, and some marsh land. on the thames river to london were large ships with cargoes; small boats rowed by tough boatmen offering passage for a penny; small private barges of great men with carved wood, gay banners, and oarsmen with velvet gowns; the banks covered with masts and tackle; the nineteen arch london bridge supporting a street of shops and houses and a drawbridge in the middle; quays; warehouses, and great cranes lifting bales from ship to wharf. merchant guilds which imported or exported each had their own wharves and warehouses. downstream, pirates hung on gallows at the low-water mark to remain until three tides had overflowed their bodies. a climate change of about / degree celcius lower caused the thames to regularly freeze over in winter. the large scale of london trade promoted the specialization of the manufacturer versus the merchant versus the shipper. merchants had enough wealth to make loans to the government or for new commercial enterprises. local reputation on general, depended upon a combination of wealth, trustworthiness of character, and public spirit; it rose and fell with business success. some london merchants were knighted by the king. many bought country estates thereby turning themselves into gentry. the king granted london all common soils, improvements, wastes, streets, and ways in london and in the adjacent waters of the thames river and all the profits and rents to be derived therefrom. later the king granted london the liberty to purchase lands and tenements worth up to , s. yearly. with this power, london had obtained all the essential features of a corporation: a seal, the right to make by-laws, the power to purchase lands and hold them "to them and their successors" (not simply their heirs, which is an individual and hereditary succession only), the power to sue and be sued in its own name, and the perpetual succession implied in the power of filling up vacancies by election. since these powers were not granted by charters, london is a corporation by prescription. in , the liverymen obtained the right with the council to elect the mayor, the sheriff, and certain other corporate officers. many boroughs sought and obtained formal incorporation with the same essential features as london. this tied up the loose language of their early charters of liberties. often, a borough would have its own resident justice of the peace. each incorporation involved a review by a justice of the peace to make sure the charter of incorporation rule didn't conflict with the law of the nation. a borough typically had a mayor accompanied by his personal sword- bearer and serjeants-at-mace bearing the borough regalia, bailiffs, a sheriff, and chamberlains or a steward for financial assistance. at many boroughs, aldermen, assisted by their constables, kept the peace in their separate wards. there might be coroners, a recorder, and a town clerk, with a host of lesser officials including beadles [a messenger of a court], aletasters, sealers, searchers [inspectors], weighers and keepers of the market, ferrymen and porters, clock-keepers and criers [cries out public announcements through the streets], paviors [maintained the roads], scavengers and other street cleaners, gatekeepers and watchmen of several ranks and kinds. a wealthy borough would have a chaplain and two or three minstrels. the mayor replaced the bailiffs as the chief magistracy. in all towns, the wealthiest and most influential guilds were the merchant traders of mercers, drapers, grocers, and goldsmiths. from their ranks came most of the mayors, and many began to intermarry with the country knights and gentry. next came the shopholders of skinners, tailors, ironmongers, and corvisors [shoemakers]. thirdly came the humbler artisans, the sellers of victuals, small shopkeepers, apprentices, and journeymen on the rise. lastly came unskilled laborers, who lived in crowded tenements and hired themselves out. the first three groups were the free men who voted, paid scot and bore lot, and belonged to guilds. scot was a ratable proportion in the payments levied from the town for local or national purposes. merchant guilds in some towns merged their existence into the town corporation, and their guild halls became the common halls of the town, and their property became town property. in london, the cutlers' company was chartered in , the haberdashers' company in , the grocers' company in , the drapers' and cordwainers' companies in , the vintners' and brewers' companies in , the leathersellers' company in , the girdlers' company in , the armourers' and brassiers' companies in , the barbers' company in , the tallow chandlers' company in , the ironmongers' company in , the dyers' company in , the musicians' company in , the carpenters' company in , the cooks' company in , and the waxchandlers' company in . the fishmongers, which had been chartered in , were incorporated in , the cordwainers in , and the pewterers in . there were craft guilds in the towns, at least in london. in fact, every london trade of twenty men had its own guild. the guild secured good work for its members and the members maintained the reputation of the work standards of the guild. bad work was punished and night work prohibited as leading to bad work. the guild exercised moral control over its members and provided sickness and death benefits for them. there was much overlapping in the two forms of association: the craft guild and the religious fraternity. apprentices were taken in to assure an adequate supply of competent workers for the future. the standard indenture of an apprentice bound him to live in his master's house; serve him diligently; obey reasonable commands; keep his master's secrets; protect him from injury; abstain from dice, cards and haunting of taverns; not marry; commit no fornication, and not absent himself without permission. in return the master undertook to provide the boy or girl with bed, board, and lodging and to instruct him or her in the trade, craft, or mystery. when these apprentices had enough training they were made journeymen with a higher rate of pay. journeymen traveled to see the work of their craft in other towns. those journeymen rising to master had the highest pay rate. occupations free of guild restrictions included horse dealers, marbelers, bookbinders, jewelers, organ makers, feathermongers, pie makers, basket makers, mirrorers, quilters, and parchment makers. non-citizens of london could not be prevented from selling leather, metalwares, hay, meat, fruit, vegetables, butter, cheese, poultry, and fish from their boats, though they had to sell in the morning and sell all their goods before the market closed. in the towns, many married women had independent businesses and wives also played an active part in the businesses of their husbands. wives of well-to-do london merchants embroidered, sewed jewelry onto clothes, and made silk garments. widows often continued in their husband's businesses, such as managing a large import-export trade, tailoring, brewing, and metal shop. socially lower women often ran their own breweries, bakeries, and taverns. it was possible for wives to be free burgesses in their own right in some towns. some ladies were patrons of writers. some women were active in prison reform in matters of reviews to insure that no man was in gaol without due cause, overcharges for bed and board, brutality, and regulation of prisoners being placed in irons. many men and women left money in their wills for food and clothing for prisoners, especially debtors. wills often left one-third of the wealth to the church, the poor, prisoners, infirmaries, young girls' education; road, wall, and bridge repair; water supply, markets and almshouses. some infirmaries were for the insane, who were generally thought to be possessed by the devil or demons. their treatment was usually by scourging the demons out of their body by flogging. if this didn't work, torture could be used to drive the demons from the body. the guilds were being replaced by associations for the investment of capital. in associations, journeymen were losing their chance of rising to be a master. competition among associations was starting to supplant custom as the mainspring of trade. the cloth exporters, who were mostly mercers, were unregulated and banded together for mutual support and protection under the name of merchant adventurers of london. the merchant adventurers was chartered in . it was the first and a prototype of regulated companies. that is the company regulated the trade. each merchant could ship on his own a certain number of cloths each year, the number depending on the length of his membership in the company. he could sell them himself or by his factor at the place where the company had privileges of market. strict rules governed the conduct of each member. he was to make sales only at certain hours on specified days. all disagreements were to be settled by the company's governor, or his deputy in residence, and those officials dealt with such disputes as arose between members of the company and continental officials and buyers. a share in the ownership of one of their vessels was a common form of investment by prosperous merchants. by , the merchant adventurers were dealing in linen cloths, buckrams [a stiffened, coarse cloth], fustians [coarse cloth made of cotton threads going in one direction and linen threads the other], satins, jewels, fine woolen and linen wares, threads, potions, wood, oil, wine, salt, copper, and iron. they began to replace trade by alien traders. the history of the "merchant adventurers" was associated with the growth of the mercantile system for more than years. it eventually replaced the staples system. paved roads in towns were usually gravel and sometimes cobble. they were frequently muddy because of rain and spillage of water being carried. iron-shod wheels and overloaded carts made them very uneven. london was the first town with paviors. they cleaned and repaired the streets, filling up potholes with wood chips and compacting them with hand rams. the paviors were organized as a city company in . about , towns besides london began appointing salaried road paviors to repair roads and collect their expenses from the householders because the policy of placing the burden on individual householders didn't work well. london streets were lighted at night by public lanterns, under the direction of the mayor. the residents were to light these candle lanterns in winter from dusk to the p.m. curfew. there were fire-engines composed of a circular cistern with a pump and six feet of inflexible hose on wheels pulled by two men on one end and pushed by two men on the other end. in the city walls were rebuilt with a weekly tax of d. per head. in schools, there was a renaissance of learning from original sources of knowledge written in greek and rebirth of the greek pursuit of the truth and scientific spirit of inquiry. there was a striking increase in the number of schools founded by wealthy merchants or town guilds. every cathedral, monastery, and college had a grammar school. merchants tended to send their sons to private boarding schools, instead of having them tutored at home as did the nobility. well-to-do parents still sent sons to live in the house of some noble to serve them as pages in return for being educated with the noble's son by the household priest. they often wore their master's coat of arms and became their squires as part of their knightly education. sometimes girls were sent to live in another house to receive education from a tutor there under the supervision of the lady of the house. every man, free or villein, could send his sons and daughters to school. in every village, there were some who could read and write. in , lincoln's inn required barristers normally resident in london and the county of middlesex to remain in residence and pay commons during the periods between sessions of court and during vacations, so that the formal education of students would be continuous. in , a similar requirement was extended to all members. the book "sir gawain and the green knight" was written about an incident in the court of king arthur and queen guenevere in which a green knight challenges arthur's knights to live up to their reputation for valor and awesome deeds. the knight gawain answers the challenge, but is shown that he could be false and cowardly when death seemed to be imminent. thereafter, he wears a green girdle around his waist to remind him not to be proud. other literature read included "london lickpenny", a satire on london and its expensive services and products, "fall of princes" by john lydgate, social history by thomas hoccleve, "the cuckoo and the nightengale", and "the flower and leaf" on morality as secular common sense. king james i of scotland wrote a book about how he fell in love. chaucer, cicero, ovid, and aesops's fables were widely read. malory's new version of the arthurian stories was popular. margery kempe wrote the first true autobiography. she was a woman who had a normal married life with children, but one day had visions and voices which led her to leave her husband to take up a life of wandering and praying in holy possession. there were religious folk ballads such as "the cherry tree carol", about the command of jesus from mary's womb for a cherry tree to bend down so that mary could have some cherries from it. the common people developed ballads, e.g. about their love of the forest, their wish to hunt, and their hatred of the forest laws. about % of londoners could read english. books were bought in london in such quantities by that the craft organizations of text-letter writers, illuminators, bookbinders, and book sellers was sanctioned by ordinance. "unto the honorable lords, and wise, the mayor and aldermen of the city of london, pray very humbly all the good folks, freemen of the said city, of the trades of writers of text-letter, limners [illuminator of books], and other folks of london who are wont to bind and to sell books, that it may please your great sagenesses to grant unto them that they may elect yearly two reputable men, the one a limner, the other a text- writer, to be wardens of the said trades, and that the names of the wardens so elected may be presented each year before the mayor for the time being, and they be there sworn well and diligently to oversee that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining, to the praise and good fame of the loyal good men of the said trades and to the shame and blame of the bad and disloyal men of the same. and that the same wardens may call together all the men of the said trades honorably and peacefully when need shall be, as well for the good rule and governance of the said city as of the trades aforesaid. and that the same wardens, in performing their due office, may present from time to time all the defaults of the said bad and disloyal men to the chamberlain at the guildhall for the time being, to the end that the same may there, according to the wise and prudent discretion of the governors of the said city, be corrected, punished, and duly redressed. and that all who are rebellious against the said wardens as to the survey and good rule of the same trades may be punished according to the general ordinance made as to rebellious persons in trades of the said city [fines and imprisonment]. and that it may please you to command that this petition, by your sagenesses granted, may be entered of record for time to come, for the love of god and as a work of charity." gutenberg's printing press, which used movable type of small blocks with letters on them, was brought to london in by a mercer: william caxton. it supplemented the text-writer and monastic copyist. it was a wood and iron frame with a mounted platform on which were placed small metal frames into which words with small letters of lead had been set up. each line of text had to be carried from the type case to the press. beside the press were pots filled with ink and inking balls. when enough lines of type to make a page had been assembled on the press, the balls would be dipped in ink and drawn over the type. then a sheet of paper would be placed on the form and a lever pulled to press the paper against the type. linen usually replaced the more expensive parchment for the book pages. the printing press made books more accessible to all literate people. caxton printed major english texts and some translations from french and latin. he commended different books to various kinds of readers, for instance, for gentlemen who understand gentleness and science, or for ladies and gentlewomen, or to all good folk. there were many cook books in use. there were convex eyeglasses for reading and concave ones for distance to correct near-sightedness. the first public library in london was established from a bequest in a will in . many carols were sung at the christian festival of christmas. ballads were sung on many features of social life of this age of disorder, hatred of sheriffs, but faith in the king. the legend of robin hood was popular, as were town miracle plays on leading incidents of the bible and morality plays. vintners portrayed the miracle of cana where water was turned into wine and goldsmiths ornately dressed the three kings coming from the east. in york, the building of noah's ark was performed by the shipwrights and the flood performed by the fishery and mariners. short pantomimes and disguising, forerunners of costume parties, were good recreation. games of cards became popular as soon as cards were introduced. the king, queen, and jack were dressed in contemporary clothes. men bowled, kicked footballs, and played tennis. in london, christmas was celebrated with masques and mummings. there was a great tree in the main market place and evergreen decorations in churches, houses, and streets. there were also games, dances, street bonfires in front of building doors, and general relaxation of social controls. sometimes there was drunken licentiousness and revelry, with peasants gathering together to make demands of lords for the best of his goods. may day was celebrated with crowns and garlands of spring flowers. the village may day pageant was often presided over by robin hood and maid marion. people turned to mysticism to escape from the everyday violent world. they read works of mystics, such as "scale of perfection" and "cloud of unknowing", the latter describing how one may better know god. they believed in magic and sorcery, but had no religious enthusiasm because the church was engendering more disrespect. monks and nuns had long ago resigned spiritual leadership to the friars; now the friars too lost much of their good reputation. the monks became used to life with many servants such as cooks, butlers, bakers, brewers, barbers, laundresses, tailors, carpenters, and farm hands. the austerity of their diet had vanished. the schedule of divine services was no longer followed by many and the fostering of learning was abandoned. into monasteries drifted the lazy and miserable. nunneries had become aristocratic boarding houses. the practice of taking sanctuary was abused; criminals and debtors sought it and were allowed to overstay the -day restriction and to leave at night to commit robberies. there were numerous chaplains, who were ordained because they received pay from private persons for saying masses for the dead; they had much leisure time for mischief because they had to forego wife and family. church courts became corrupt, but jealously guarded their jurisdiction from temporal court encroachment. peter's pence was no longer paid by the people, so the burden of papal exaction fell wholly on the clergy. but the church was rich and powerful, paying almost a third of the whole taxation of the nation and forming a majority in the house of lords. many families had kinsmen in the clergy. even the lowest cleric or clerk could read and write in latin. people relied on saint's days as reference points in the year, because they did not know dates of the year. but townspeople knew the hour and minute of each day, because clocks driven by a descending weight on a cord were in all towns and in the halls of the well-to-do. this increased the sense of punctuality and lifted standards of efficiency. these weight-driven clocks replaced water clocks, which had a problem of water freezing, and sandclocks, which could measure only small time intervals. a linguistic unity and national pride was developing. london english became the norm and predominated over rural dialects. important news was announced and spread by word of mouth in market squares and sometimes in churches. as usual, traders provided one of the best sources of news; they maintained an informal network of speedy messengers and accurate reports because political changes so affected their ventures. news also came from peddlers, who visited villages and farms to sell items that could not be bought in the local village. these often included scissors, eyeglasses, colored handkerchiefs, calendars, fancy leather goods, watches, and clocks. peddling was fairly profitable because of the lack of competition. but peddlers were often viewed as tramps and suspected of engaging in robbery as well as peddling. a royal post service was established by relays of mounted messengers. the first route was between london and the scottish border, where there were frequent battles for land between the scotch and english. the inland roads from town to town were still rough and without signs. a horseman could make up to miles a day. common carriers took passengers and parcels from various towns to london on scheduled journeys. now the common yeoman could order goods from the london market, communicate readily with friends in london, and receive news of the world frequently. trade with london was so great and the common carrier so efficient in transporting goods that the medieval fair began to decline. first the grocers and then the mercers refused to allow their members to sell goods at fairs. there was much highway robbery. most goods were still transported by boats along the coasts, with trading at the ports. embroidery was exported. imported were timber, pitch, tar, potash [for cloth dying], furs, silk, satin, gold cloth, damask cloth, furred gowns, gems, fruit, spices, and sugar. imports were restricted by national policy for the purpose of protecting native industries. english single-masted ships began to be replaced by two or three masted ships with high pointed bows to resist waves and sails enabling the ship to sail closer to the wind. tuns was the usual carrying capacity. the increase in trade made piracy, even by merchants, profitable and frequent until merchant vessels began sailing in groups for their mutual protection. the astrolabe, which took altitude of sun and stars, was used for navigation. consuls were appointed to assist english traders abroad. henry iv appointed the first admiral of the entire nation and resolved to create a national fleet of warships instead of using merchant ships. in , the war navy had ships. in , portsmouth was fortified as a naval base. henry v issued the orders that formed the basic law of english admiralty and appointed surgeons to the navy and army. for defense of the nation, especially the safeguard of the seas, parliament allotted the king for life, s. for every tun of wine imported and an additional s. for every tun of sweet wine imported. from about , tunnage on wine [tax per tun] and poundage [tax per pound] on merchandise were duties on goods of merchants which were regularly granted by parliament to the king for life for upkeep of the navy. before this time, such duties had been sporadic and temporary. the most common ailments were eye problems, aching teeth, festering ears, joint swelling and sudden paralysis of the bowels. epidemics broke out occasionally in the towns in the summers. the plague swept london in and the nation in , , and . leprosy disappeared. infirmaries were supported by a tax of the king levied on nearby counties. the walls, ditches, gutters, sewers, and bridges on waterways and the coast were kept in repair by laborers hired by commissions appointed by the chancellor. those who benefited from these waterways were taxed for the repairs in proportion to their use thereof. alabaster was sculptured into tombs surmounted with a recumbent effigy of the deceased, and effigies of mourners on the sides. few townsmen choose to face death alone and planned memorial masses to be sung to lift their souls beyond purgatory. chantries were built by wealthy men for this purpose. chemical experimentation was still thought to be akin to sorcery, so was forbidden by king henry iv in . gold was minted into coins: noble, half noble, and farthing. king henry iv lost power to the commons and the lords because he needed revenue from taxes and as a usurper king, he did not carry the natural authority of a king. the commons acquired the right to elect its own speaker. the lords who helped the usurpation felt they should share the natural power of the kingship. the council became the instrument of the lords. also, the commons gained power compared to the nobility because many nobles had died in war. the consent of the commons to legislation became so usual that the justices declared that it was necessary. the commons began to see itself as representative of the entire commons of the realm instead of just their own counties. its members had the freedom to consider and debate every matter of public interest, foreign or domestic, except for church matters. the commons, the poorest of the three estates, established an exclusive right to originate all money grants to the king in . the speaker of the commons announced its money grant to the king only on the last day of the parliamentary session, after the answers to its petitions had been declared, and after the lords had agreed to the money grant. it tied its grants by rule rather than just practice to certain appropriations. for instance, tunnage and poundage were appropriated for naval defenses. wool customs went to the maintenance of calais, a port on the continent, and defense of the nation. it also put the petitions in statutory form, called "bills", to be enacted after consideration and amendment by all without alteration. each house had a right to deliberate in privacy. in the commons, members spoke in the order in which they stood up bareheaded. any member of parliament or either house or the king could initiate a bill. both houses had the power to amend or reject a bill. there were conferences between select committees of both houses to settle their differences. the commons required the appointment of auditors to audit the king's accounts to ensure past grants had been spent according to their purpose. it forced the king's council appointees to be approved by parliament and to be paid salaries. about , kings' councilors were required to take an oath not to accept gifts of land, not to maintain private suits, not to reveal secrets, and not to neglect the king's business. a quorum was fixed and rules made for removal from the council. for the next fifty years, the council was responsible both to the king and to parliament. this was the first encroachment on the king's right to summon, prorogue, or dismiss a parliament at his pleasure, determine an agenda of parliament, veto or amend its bills, exercise his discretion as to which lords he summoned to parliament, and create new peers by letters patent [official public letters]. parliament was affected by the factionalism of the times. the speaker of the commons was often an officer of some great lord. in , the retainers of the barons in parliament were forbidden to bear arms, so they appeared with clubs on their shoulders. when the clubs were forbidden, they came with stones concealed in their clothing. kings created dukes and marquesses to be peers. a duke was given creation money or allowance of pounds a year. a marquess was given pounds. these new positions could not descend to an heiress, unlike a barony or earldom. an earl was given pounds, which probably took the place of his one-third from the county. king henry vi gave the title of viscount to several people; it had an allowance of . pounds and was above baron. it allowed them to be peers. there were about peers. henry vi also began the offices of keeper of the great seal, keeper of the privy seal, chamberlain, steward of the household, to be great offices of state besides chancellor and treasurer. they were members of his council along with the archbishops of canterbury and york and about other members. in king edward iv's reign, the king's retinue had about knights, squires, yeomen, clerks, grooms, and stablemen. the suitable annual expense of the household of the king was , pounds for his retinue of about people, a duke , pounds for about people, a marquess , pounds for about people, an earl , pounds for about people, a viscount , pounds for about people, a baron pounds for about people, a banneret [a knight made in the field, who had a banner] pounds for about people, a knight bachelor pounds for about people, and a squire pounds for about people. of a squire's pounds, about pounds were spent in food, repairs and furniture , on horses, hay, and carriage , on clothes, alms and oblations , wages , livery of dress , and the rest on hounds and the charges of harvest and hay time. many servants of the household of the country gentleman were poor relations. they might by education and accomplishment rise into the service of a baron who could take him to court, where he could make his fortune. barons' households also included steward, chaplains, treasurer, accountants, chamberlain, carvers, servers, cupbearers, pages, and even chancellor. they were given wages and clothing allowances and had meals in the hall at tables according to their degree. the authority of the king's privy seal had become a great office of state which transmitted the king's wishes to the chancery and exchequer, rather than the king's personal instrument for sealing documents. now the king used a signet kept by his secretary as his personal seal. edward iv made the household office of secretary, who had custody the king's signet seal, a public office. the secretary was generally a member of the council. edward iv invented the benevolence, a gift wrung from wealthy subjects. king edward iv introduced an elaborate spy system, the use of the rack to torture people to give information, and other interferences with justice, all of which the tudor sovereigns later used. torture was used to discover facts, especially about coconspirators, rather than to elicit a confession, as on the continent. it was only used on prisoners held in the tower of london involved in state trials and could only be authorized by the king's closest councilors in virtue of the royal prerogative. the rack stretched the supine body by the wrists and legs with increasing agony at the joints until the limbs were dislocated. some victims were permanently crippled by it; others died on it. most told what they knew, often at the very sight of the rack. torture was forbidden in the common law, which favored an accusatorial system, in which the accuser had to prove guilt, rather than an inquisitional system, in which the accused had to prove innocence. edward iv applied martial law to ordinary cases of high treason by extending the jurisdiction of the politically- appointed high constable of england to these cases, thus depriving the accused of trial by jury. he executed many for treason and never restored their forfeited land to their families, as had been the usual practice. king richard iii prohibited the seizure of goods before conviction of felony. he also liberated the unfree villeins on royal estates. it was declared under parliamentary authority that there was a preference for the crown to pass to a king's eldest son, and to his male issue after him. formerly, a man could ascend to the throne through his female ancestry as well. the law the forcible entry statute is expanded to include peaceful entry with forcible holding after the justices arrived and to forcible holding with departure before the justices arrived. penalties are triple damages, fine, and ransom to the king. a forceful possession lasting three years is exempt. by common law, a tenant could not take away buildings or fixtures he built on land because it would be wasteful. this applied to agricultural fixtures, but not to other trade fixtures. also at common law, if a person had enjoyed light next to his property for at least years, no one could build up the adjacent land so that the light would be blocked. women of age fourteen or over shall have livery of their lands and tenements by inheritance without question or difficulty. purposely cutting out another's tongue or putting out another's eyes is a felony, the penalty for which is loss of all property]. no one may keep swans unless he has lands and tenements of the estate of freehold to a yearly value of s., because swans of the king, lords, knights, and esquires have been stolen by yeomen and husbandmen. the wage ceiling for servants is: bailiff of agriculture s. d. per year, and clothing up to s., with meat and drink; chief peasant, a carter, chief shepherd s. and clothing up to s., with meat and drink; common servant of agriculture s., and clothing up to s. d.; woman servant s., and clothing up to s., with meat and drink; infant under fourteen years s., and clothing up to s., with meat and drink. such as deserve less or where there is a custom of less, that lesser amount shall be given. for laborers at harvest time: mower d. with meat and drink or d. without; reaper or carter: d. with or d. without; woman laborer and other laborers: d with and d. without. the ceiling wage rate for craftsmen per day is: free mason or master carpenter d. with meat and drink or d. without; master tiler or slater, rough mason, and mesne [intermediary] carpenter and other artificiers in building d. with meat and drink or d. without; every other laborer d. with meat and drink or d. without. in winter the respective wages were less: mason category: d. with or d. without; master tiler category: d. with or d. without; others: d. with or d. without meat and drink. any servant of agriculture who is serving a term with a master and covenants to serve another man at the end of this term and that other man shall notify the master by the middle of his term so he can get a replacement worker. otherwise, the servant shall continue to serve the first master. no man or woman may put their son or daughter to serve as an apprentice in a craft within any borough, but may send the child to school, unless he or she has land or rent to the value of s. per year.this was because of scarcity of laborers and other servants of agriculture. no laborer may be hired by the week. masons may no longer congregate yearly, because it has led to violation of the statute of laborers. no games may be played by laborers because they lead to [gambling and] murders and robberies. apparel worn must be appropriate to one's status to preserve the industry of agriculture. the following list of classes shows the lowest class, which could wear certain apparel: . -lords - gold cloth, gold corses, sable fur, purple silk . -knights - velvet, branched satin, ermine fur . -esquires and gentlemen with possessions to the value of s. per year, daughters of a person who has possessions to the value of , s. a year damask, silk, kerchiefs up to s. in value. . -esquires and gentlemen with possessions to the yearly value of s. pounds - fur of martron or letuse, gold or silver girdles, silk corse not made in the nation, kerchief up to s. d in value . -men with possessions of the yearly value of s. excluding the above three classes - fustian, bustian, scarlet cloth in grain . -men with possessions under the yearly value of s. excluding the first three classes - black or white lamb fur, stuffing of wool, cotton, or cadas. . -yeomen - cloth up to the value of s., hose up to the value of s., a girdle with silver, kerchief up to d. . -servants of agriculture, laborer, servant, country craftsman - none of the above clothes gowns and jackets must cover the entire trunk of the body, including the private parts. shoes may not have pikes over two inches. every town shall have at its cost a common balance with weights according to the standard of the exchequer. all citizens may weigh goods for free. all cloth to be sold shall be sealed according to this measure. there is a standard bushel of grain throughout the nation. there are standard measures for plain tile, roof tile, and gutter tile throughout the nation. no gold or silver may be taken out of the nation. the price of silver is fixed at s. for a pound, to increase the value of silver coinage, which has become scarce due to its higher value when in plate or masse. a designee of the king will inspect and seal cloth with lead to prevent deceit. cloth may not be tacked together before inspection. no cloth may be sold until sealed. heads of arrows shall be hardened at the points with steel and marked with the mark of the arrowsmith who made it, so they are not faulty. shoemakers and cordwainers may tan their leather, but all leather must be inspected and marked by a town official before it is sold. to prevent deceitful tanning, cordwainers shall not tan leather. tanners who make a notorious default in leather which is found by a cordwainer shall make a forfeiture. defective embroidery for sale shall be forfeited. no fishing net may be fastened or tacked to posts, boats, or anchors, but may be used by hand, so that fish are preserved and vessels may pass. no one may import any articles which could be made in the nation, including silks, bows, woolen cloths, iron and hardware goods, harness and saddlery, except printed books. the following merchandise shall not be brought into the nation already wrought: woolen cloth or caps, silk laces, ribbons, fringes, and embroidery, gold laces, saddles, stirrups, harnesses, spurs, bridles, gridirons, locks, hammers, fire tongs, dripping pans, dice, tennis balls, points, purses, gloves, girdles, harness for girdles of iron steel or of tin, any thing wrought of any treated leather, towed furs, shoes, galoshes, corks, knives, daggers, woodknives, thick blunt needles, sheers for tailors, scissors, razors, sheaths, playing cards, pins, pattens [wooden shoes on iron supports worn in wet weather], pack needles, painted ware, forcers, caskets, rings of copper or of gilt sheet metal, chaffing dishes, hanging candlesticks, chaffing balls, mass bells, rings for curtains, ladles, skimmers, counterfeit felt hat moulds, water pitchers with wide spouts, hats, brushes, cards for wool, white iron wire, upon pain of their forfeiture. one half this forfeiture goes to the king and the other half to the person seizing the wares. no sheep may be exported, because being shorn elsewhere would deprive the king of customs. no wheat, rye, or barley may be imported unless the prices are such that national agriculture is not hurt. clothmakers must pay their laborers, such as carders and spinsters, in current coin and not in pins and girdles and the like. the term "freemen" in the magna carta includes women. the election of a knight from a county to go to parliament shall be proclaimed by the sheriff in the full county so all may attend and none shall be commanded to do something else at that time. election is to be by majority of the votes and its results will be sealed and sent to parliament. electors and electees to parliament must reside in the county or be citizens or burgesses of a borough. to be an elector to parliament, a knight must reside in the county and have a freehold of land or tenements there of the value of at least s. per year, because participation in elections of too many people of little substance or worth had led to homicides, assaults, and feuds. (these "yeomen" were about one sixth of the population. most former electors and every leaseholder and every copyholder were now excluded. those elected for parliament were still gentry chosen by substantial freeholders.) london ordinances forbade placing rubbish or dung in the thames river or any town ditch or casting water or anything else out of a window. the roads were maintained with tolls on carts and horses bringing victuals or grains into the city and on merchandise unloaded from ships at the port. no carter shall drive his cart more quickly when it is unloaded than when it is loaded. no pie bakers shall sell beef pies as venison pies, or make any meat pie with entrails. to assist the poor, bread and ale shall be sold by the farthing. desertion by a soldier is penalized by forfeiture of all land and property. the common law held that a bailee is entitled to possession against all persons except the owner of the bailed property. former justice sir thomas littleton wrote a legal textbook describing tenancies in dower; the tenures of socage, knight's service, serjeanty, and burgage; estates in fee simple, fee tail, and fee conditional; inheritance and alienation of land. for instance, "also, if feoffment be made upon such condition, that if the feoffor pay to the feofee at a certain day, etc., s. forty pounds of money, that then the feoffor may reenter, etc., in this case the feoffee is called tenant in mortgage, ... and if he doth not pay, then the land which he puts in pledge upon condition for the payment of the money is gone from him for ever, and so dead as to the tenant, etc." joint tenants are distinguished from tenants in common by littleton thus: "joint-tenants are, as if a man be seised of certain lands or tenements, etc., and thereof enfeoffeth two, or three, or four, or more, to have and to hold to them (and to their heirs, or letteth to them) for term of their lives, or for term of another's life; by force of which feoffment or lease they are seised, such are joint-tenants. ... and it is to be understood, that the nature of joint-tenancy is, that he that surviveth shall have solely the entire tenancy, according to such estate as he hath, ..." "tenants in common are they that have lands or tenements in fee-simple, fee-tail, or for term of life, etc., the which have such lands and tenements by several title, and not by joint title, and neither of them knoweth thereof his severalty, but they ought by the law to occupy such lands or tenements in common pro indiviso [undivided], to take the profits in common. ...as if a man enfeoff two joint-tenants in fee, and the one of them alien that which to him belongeth to another in fee, now the other joint-tenant and the alienee are tenants in common, because they are in such tenements by several titles, ..." there are legal maxims and customs of ancient origin which have become well established and known though not written down as statutes. some delineated by christopher st. germain in "doctor and student" in are: . -the spouse of a deceased person takes all personal and real chattels of the deceased. . -for inheritance of land, if there are no descendant children, the brothers and sisters take alike, and if there are none, the next blood kin of the whole blood take, and if none, the land escheats to the lord. land may never ascend from a son to his father or mother. . -a child born before espousals is a bastard and may not inherit, even if his father is the husband. . -if a middle brother purchases lands in fee and dies without heirs of his body, his eldest brother takes his lands and not the younger brother. the next possible heir in line is the younger brother, and the next after him, the father's brother. . -for lands held in socage, if the heir is under , the next friend to the heir, to whom inheritance may not descend, shall have the ward of his body and lands until the heir is , at which time the heir may enter. . -for lands held by knight's service, if the heir is under , then the lord shall have the ward and marriage of the heir until the heir is , if male, or (changed to in ), if female. when of age, the heir shall pay relief. by the right of marriage, a lord could give his ward-heirs in marriage to a suitable match. should this match be refused, its value, determined by a judge, was forfeited to the lord. . -a lease for a term of years is a real chattel rather than a free tenement, and may pass without livery of seisin. . -he who has possession of land, though it is by disseisin, has right against all men but against him who has right. . -if a tenant is past due his rent, the lord may distrain his beasts which are on the land. . -all birds, fowls, and wild beasts of the forest and warren are excepted out of the law and custom of property. no property may be had of them unless they are tame. however, the eggs of hawks and herons and the like belong to the man whose land they are on. . if a man steals goods to the value of d., or above, it is felony, and he shall die for it. if it is under the value of d., then it is but petty larceny, and he shall not die for it, but shall be punished at the discretion of the judges. this not apply to goods taken from the person, which is robbery, a felony punishable by death. . if the son is attainted [convicted of treason or felony with the death penalty and forfeiture of all lands and goods] in the life of the father, and after he purchases his -charter of pardon of the king, and after the father dies; in this case the land shall escheat to the lord of the fee, insomuch that though he has a younger brother, yet the land shall not descend to him: for by the attainder of the elder brother the blood is corrupt, and the father in the law died -without heir. . a man declared outlaw forfeits his profits from land and his goods to the king. . he who is arraigned upon an indictment of felony shall be admitted, in favor of life, to challenge thirty-five inquirers (three whole inquests would have thirty-six) peremptorily. with cause, he may challenge as many as he has cause to challenge if he can prove it. such peremptory challenge shall not be admitted in a private suit. . an accessory shall not be put to answer before the principal. . if a man commands another to commit a trespass, and he does it, the one who made the command is a trespasser. . the land of every man is in the law enclosed from other, though it lies in the open field, and a trespasser in it may be brought to court. . every man is bound to make recompense for such hurt as his beasts do in the growing grain or grass of his neighbor, though he didn't know that they were there. . if two titles are concurrent together, the oldest title shall be preferred. . he who recovers debt or damages in the king's court when the person charged is not in custody, may within a year after the judgment take the body of the defendant, and commit him to prison until he has paid the debt and damages. . if the demandant or plaintiff, hanging his writ (writ pending in court), will enter into the thing demanded, his writ shall abate. . by the alienation of the tenant, hanging the writ, or his entry into religion, or if he is made a knight, or she is a woman and takes a husband hanging the writ, the writ shall not abate. . the king may disseise no man and no man may disseise the king, nor pull any reversion or remainder out of him. judicial procedure the prohibition against maintenance was given penalties in of s. per person for a knight or lower giving livery of cloth or hats, and of s. for the receiver of such. a person who brought such suit to court was to be given half the penalty. the justices of assize and king's bench were authorized to inquire about such practices. the statute explicitly included ladies and any writing, oath, or promise as well as indenture. excepted were guilds, fraternities, and craftsmen of cities and boroughs which were founded on a good purpose; universities; the mayor and sheriffs of london; and also lords, knights, and esquires in time of war. a penalty of one year in prison without bail was given. in , there was a penalty of s. per livery to the giver of such, s. per month to the retainer or taker of such, and s. per month to the person retained. still this law was seldom obeyed. people took grievances outside the confines of the rigid common law to the chancellor, who could give equitable remedies under authority of a statute of (described in chapter ). the chancery heard many cases of breach of faith in the "use", a form of trust in which three parties were involved: the holder of land, feofees to whom the holder had made it over by conveyance or "bargain and sale", and the beneficiary or receiver of the profits of the land, who was often the holder, his children, relatives, friends, an institution, or a corporation. this system of using land had been created by the friars to get around the prohibition against holding property. lords and gentry quickly adopted it. the advantages of the use were that ) there was no legal restriction to will away the beneficial interest of the use although the land itself could not be conveyed by will; ) it was hard for the king to collect feudal incidents because the feoffees were often unknown ) the original holder was protected from forfeiture of his land in case of conviction of treason if the crown went to someone he had not supported. chancery gave a remedy for dishonest or defaulting feofees. chancery also provided the equitable relief of specific performance in disputes over agreements, for instance, conveyance of certain land, whereas the common law courts awarded only monetary damages by the writ of covenant. chancery ordered accounts to be made in matters of foreign trade because the common law courts were limited to accounts pursuant to transactions made within the nation. it also involved itself in the administration of assets and accounting of partners to each other. the chancellor took jurisdiction of cases of debt, detinue, and account which had been decided in other courts with oath-helping by the defendant. he did not trust the reliance on friends of the defendant swearing that his statement made in his defense was true. an important evidentiary difference between procedures of the chancery and the common law courts was that the chancellor could orally question the plaintiff and the defendant under oath. he also could order persons to appear at his court by subpoena, under pain of punishment, such as a heavy fine. the court of common pleas had three types of jurisdiction: ) common law jurisdiction between person and person, including actions regarding land, which was exclusive, ) personal actions of debt, detinue, account and covenant, and ) mixed actions, both personal and regarding land, e.g. ejectment. it had shared jurisdiction with the court of the king's bench in maintenance, conspiracy, other breaches of statute, trespass, trespass on the case, and their derivatives. most of its business had to do with recovery of debt, from s. to thousands of pounds. whereas the characteristic award of the common law courts was seisin of land or monetary damages, chancery often enjoined certain action. because malicious suits were a problem, the chancery identified such suits and issued injunctions against taking them to any court. the chancery was given jurisdiction by statute over men of great power taking by force women who had lands and tenements or goods and not setting them free unless they bound themselves to pay great sums to the offenders or to marry them. a statute also gave chancery jurisdiction over servants taking their masters' goods at his death. chancery could issue writs of habeas corpus [produce the body] to bring a person before a court or judge. justices of the peace, appointed by the crown, investigated all riots and arrested rioters, by authority of statute. if they had departed, the justices certified the case to the king. the case was then set for trial first before the king and his council and then at the king's bench. if the suspected rioters did not appear at either trial, they could be convicted for default of appearance. if a riot was not investigated and the rioters sought, the justice of the peace nearest forfeited , s. justices of the peace were not paid. for complex cases and criminal cases with defendants of high social status, they deferred to the justices of assize, who rode on circuit once or twice a year. since there was no requirement of legal knowledge for a justice of the peace, many referred to the "boke of the justice of the peas" compiled about for them to use. manor courts still formally admitted new tenants, registered titles, sales of land and exchanges of land, and commutation of services, enrolled leases and rules of succession, settled boundary disputes, and regulated the village agriculture. all attorneys shall be examined by the royal justices for their learnedness in the law and, at their discretion, those that are good and virtuous shall be received to make any suit in any royal court. these attorneys shall be sworn to serve well and truly in their offices. attorneys may plead on behalf of parties in the hundred courts. a qualification for jurors was to have an estate to one's own use or one of whom other persons had estates of fee simple, fee tail, or freehold in lands and tenements, which were at least s. per year in value. in a plea of land worth at least s. yearly or a personal plea with relief sought at least s., jurors had to have land in the bailiwick to the value of at least s., because perjury was considered less likely in the more sufficient men. in criminal cases, there were many complaints made that the same men being on the grand assize and petty assize was unfair because prejudicial. so it became possible for a defendant to challenge an indictor for cause before the indictor was put on the petty assize. then the petty assize came to be drawn from the country at large and was a true petty or trial jury. jurors were separated from witnesses. in the s, the principle was established that a juror should not sit on a case of which he had previous knowledge. justices of the peace were to have lands worth s. yearly, because those with less had used the office for extortion and lost the respect and obedience of the people. a sheriff was not to arrest, but to transfer indictments to the justices of the peace of the county. he had to reside in his bailiwick. the sheriff could be sued for misfeasance such as bribery in the king's court. impeachment was replaced with bill of attainder during the swift succession of parliaments during the civil war. this was a more rapid and efficient technique of bringing down unpopular ministers or political foes. there was no introduction of evidence, nor opportunity for the person accused to defend himself, nor any court procedure, as there was with impeachment. an example of a case of common law decided by court of king's bench is russell's case ( ) as follows: in the king's bench one thomas russell and alice his wife brought a writ of trespass for goods taken from alice while she was single. the defendant appeared and pleaded not guilty but was found guilty by a jury at nisi prius, which assessed the damages at pounds. before the case was next to be heard in the king's court an injunction issued out of the chancery to the plaintiffs not to proceed to judgment, on pain of pounds, and for a long time judgment was not asked for. then hussey cjkb. asked spelman and fincham, who appeared for the plaintiff if they wanted to ask for judgment according to the verdict. fincham [p]: we would ask for judgment, except for fear of the penalty provided for in the injunction, for fear that our client will be imprisoned by the chancellor if he disobeys. fairfax, jkb: he can ask for judgment in spite of the injunction, for if it is addressed to the plaintiff his attorney can ask for judgment, and vice versa. hussey, cjkb: we have consulted together on this matter among ourselves and we see no harm which can come to the plaintiff if he proceeds to judgment. the law will not make him pay the penalty provided in the injunction. if the chancellor wants to imprison him he must send him to the fleet prison, and, as soon as you are there you will inform us and we shall issue a habeas corpus returnable before us, and when you appear before us we shall discharge you, so you will not come to much harm, and we shall do all we can for you. nevertheless, fairfax said he would go to the chancellor and ask him if he would discharge the injunction. and they asked for judgment and it was held that they should recover their damages as assessed by the jury, but they would not give judgment for damages caused by the vexation the plaintiff suffered through the chancery injunction. and they said that if the chancellor would not discharge the injunction, they would give judgment if the plaintiff would ask for it. an example of a petition to chancery in the s is hulkere v. alcote, as follows: to the right reverend father in god and gracious lord bishop of bath, chancellor of england, your poor and continual bedwoman lucy hulkere, widow of westminster, most meekly and piteously beseeches: that whereas she has sued for many years in the king's bench and in the common pleas for withholding diverse charters and evidences of land, leaving and delaying her dower of the manor of manthorpe in lincolnshire and also of the manor of gildenburton in northamptonshire, together with the withdrawing of her true goods which her husband gave her on his deathbed to the value of pounds and more, under record of notary, sued against harry alcote and elizabeth of the foresaid gildenburton within the same county of northampton. and by collusion and fickle counsel of the foresaid harry and elizabeth his mother there was led and shown for him within the common pleas a false release, sealed, to void and exclude all her true suit by record of true clerks and attorneys of the aforesaid common pleas. of the which false release proved she has a copy to show. [all this is] to her great hindrance and perpetual destruction unless she have help and remedy by your righteous and gracious lordship in this matter at this time. that it please your noble grace and pity graciously to grant a writ subpoena to command the foresaid henry alcote and elizabeth alcote to come before your presence by a certain day by you limited in all haste that they may come to westminster to answer to this matter abovesaid, for love of god and a deed of charity, considering graciously that the foresaid harry alcote, with another fellow of his affinity who is not lately hanged for a thief in franceled her into a garden at gildenburton and put her down on the ground, laying upon her body a board and a summer saddle and great stones upon the board, the foresaid harry alcote sitting across her feet and the other at her head for to have slain her and murdered her, and by grace of our lady her mother- in-law out walking heard a piteous voice crying and by her goodness she was saved and delivered, and otherwise would be dead. pledges to prosecute: john devenshire of berdevyle in essex and james kelom of london. returnable in michaelmas term. chapter the times: - henry tudor and other exiles defeated and killed richard iii on bosworth field, which ends the civil war of the roses between the lancaster and york factions. as king, henry vii restored order to the nation. he was readily accepted as king because he was descended from the lancaster royal line and he married a woman from the york royal line. henry was intelligent and sensitive. he weighed alternatives and possible consequences before taking action. he was convinced by reason on what plans to make. in his reign of years, henry applied himself diligently to the details of the work of government to make it work well. he strengthened the monarchy, shored up the legal system to work again, and provided a peace in the land in which a renaissance of the arts and sciences, culture, and the intellectual life could flourish. his primary strategy was enacting and enforcing statutes to shore up the undermined legal system, which includes the establishment of a new court: the court of the star chamber, to obtain punishment of persons whom juries were afraid to convict. it had no jury and no grand jury indictment. for speed and certainty, it tried people "ex officio": by virtue of its office. suspects were required to take an oath ex officio, by which they swore to truthfully answer all questions put to them. a man could not refuse to answer on the grounds of self-incrimination. the star chamber was the room in which the king's council had met since the s. the most prevalent problems were: murder, robbery, rape or forced marriage of wealthy women, counterfeiting of coin, extortion, misdemeanors by sheriffs and escheators, bribing of sheriffs and jurors, perjury, livery and maintenance agreements, idleness, unlawful plays, and riots. interference with the course of justice was not committed only by lords on behalf of their retainers; men of humbler station were equally prone to help their friends in court or to give assistance in return for payment. rural juries were intimidated by the old baronage and their armed retinues. juries in municipal courts were subverted by gangs of townsmen. justices of the peace didn't enforce the laws. the agricultural work of the nation had been adversely affected. henry made policy with the advice of his council and had parliament enact it into legislation. he dominated parliament by having selected most of its members. many of his council were sons of burgesses and had been trained in universities. he chose competent and especially trusted men for his officers and commanders of castles and garrison. the fact that only the king had artillery deterred barons from revolting. also, the baronial forces were depleted due to the civil war of the roses. if henry thought a magnate was exercising his territorial power to the king's detriment, he confronted him with an army and forced him to bind his whole family in recognizances for large sums of money to ensure future good conduct. since the king had the authority to interpret these pledges, they were a formidable check on any activity which could be considered to be disloyal. the earl of kent, whose debts put him entirely at the king's mercy, was bound to "be seen daily once in the day within the king's house". henry also required recognizances from men of all classes, including clergy, captains of royal castles, and receivers of land. the higher nobility now consisted of about twenty families. the heavy fines by the star court put an end to conspiracies to defraud, champerty [an agreement with a litigant to pay costs of litigation for a share in the damages awarded], livery, and maintenance. the ties between the nobility and the justices of the peace had encouraged corruption of justice. so henry appointed many of the lesser gentry and attorneys as justices of the peace. also he appointed a few of his councilors as nonresident justices of the peace. there were a total of about thirty justices of the peace per county. their appointments were indefinite and most remained until retirement or death. henry instituted the yeomen of the guard to be his personal bodyguards night and day. many bills of attainder caused lords to lose their land to the king. most of these lords had been chronic disturbers of the peace. henry required retainers to be licensed, which system lasted until about . henry was also known to exhaust the resources of barons he suspected of disloyalty by accepting their hospitality for himself and his household for an extended period of time. henry built up royal funds by using every available procedure of government to get money, by maximizing income from royal estates by transferring authority over them from the exchequer to knowledgeable receivers, and from forfeitures of land and property due to attainders of treason. he also personally reviewed all accounts and initialed every page, making sure that all payments were made. he regularly ordered all men with an income of s. [ pounds] yearly from lands or revenue in hand to receive knighthoods, which were avoided by those who did not want to fight, or pay a high fee. as a result, the crown became rich and therefore powerful. henry's queen, elizabeth, was a good influence on his character. her active beneficence was a counteracting influence to his avaricious predisposition. when henry and his queen traveled through the nation, they often stopped to talk to the common people. they sometimes gave away money, such as to a man who had lost his hand. henry paid for an intelligent boy he met to go to school. henry had the first paper mill erected in the nation. he fostered the reading of books and the study of roman law, the classics, and the bible. he had his own library and gave books to other libraries. the age of entry to university was between and . it took four years' study of grammar, logic, and rhetoric to achieve the bachelor of arts degree and another five before a master could begin a specialized study of the civil law, canon law, theology, or medicine. humanist studies were espoused by individual scholars at the three centers of higher learning: oxford university, cambridge university, and the inns of court in london. the inns of court attracted the sons of gentry and merchants pursuing practical and social accomplishments. the text of "readings" to members of the inns survive from this time. in the legalistic climate of these times, attorneys were prosperous. the enclosure of land by hedges for sheep farming continued, especially by rich merchants who bought country land for this purpose. often this was land that had been under the plough. any villeins were given their freedom and they and the tenants at will were thrown off it immediately. that land held by copyholders of land who had only a life estate, was withheld from their sons. only freeholders and copyholders with the custom of the manor in their favor were secure against eviction. but they could be pressured to sell by tactics such as breeding rabbits or keeping geese on adjoining land to the detriment of their crops, or preventing them from taking their traditional short cuts across the now enclosed land to their fields. the real line of distinction between rural people was one of material means instead of legal status: free or unfree. on one extreme was the well-to-do yeoman farmer farming his own land. on the other extreme was the agricultural laborer working for wages. henry made several proclamations ordering certain enclosures to be destroyed and tillage to be restored. other land put to use for sheep breeding was waste land. there were three sheep to every person. the nearby woodlands no longer had wolves or lynx who could kill the sheep. bears and elk are also gone.there were still deer, wild boar, wildcats and wild cattle in vast forests for the lords to hunt. wood was used for houses, arms, carts, bridges, and ships. the villages were still isolated from each other, so that a visitor from miles away was treated as warily as a foreigner. most people lived and died where they had been born. a person's dialect indicated his place of origin. the life of the village still revolved around the church. in some parishes, its activities were highly organized, with different groups performing different functions. for example, the matrons looked after a certain altar; the maidens raised money for a chapel or saw to the gilding of the images; the older men collected money for church repair; and the younger men organized the church ales and the church plays. wills often left property or rents from leased land to the church. church cows and sheep given could be leased out to villagers. church buildings given could be leased out, turned over to the poor, used to brew ale or bake bread for church ales, or used in general as a place for church activities. church ales would usually a good source of income; alehouses would be closed during the ceremonies and parishioners would contribute malt for the ale and grain, eggs, butter, cheese, and fruits. the largest town, london, had a population of about , . other towns had a population less than , . the population was increasing, but did not reach the level of the period just before the black death. in most large towns, there were groups of tailors and hatmakers, glovers, and other leatherworkers. some towns had a specialization due to their proximity to the sources of raw materials, such as nails, cutlery, and effigies and altars. despite the spread of wool manufacturing to the countryside, there was a marked increase of industry and prosperity in the towns. the principal streets of the larger towns were paved with gravel. guild halls became important and imposing architecturally. a large area of london was taken up by walled gardens of the monasteries and large mansions. there were some houses of stone and timber and some mansions of brick and timber clustered around palaces. in these, bedrooms increased in number, with rich bed hangings, linen sheets, and bolsters. bedspreads were introduced. nightgowns were worn. fireplaces became usual in all the rooms. tapestries covered the walls. carpets were used in the private rooms. some of the great halls had tiled floors. the old trestle tables were replaced by tables with legs. benches and stools had backs to lean on. a long gallery was used for exercise, recreation such as music and dancing, and private conversations. women and men wore elaborate headdresses. on the outer periphery are taverns and brothels, both made of mud and straw. houses are beginning to be built outside the walls of london along the thames because the collapse of the power of the great feudal lords decreased the fear of an armed attack on london. the merchants introduced this idea of living at a distance from the place of work so that they could escape living in the narrow, damp, and dark lanes of the city and have more light and space. indeed no baronial army ever threatened the king again. east of london were cattle pastures, flour mills, bakers, cloth-fulling mills, lime burners, brick and tile makers, bell founders, and ship repairing. there was a drawbridge on the south part of london bridge for defense and to let ships through. water sports were played on the thames such as tilting at each other with lances from different boats. the tailors' and linen armorers' guild received a charter in from the king as the "merchant tailors" to use all wares and merchandise, especially wool cloth, as well wholesale as retail, throughout the nation. some schooling was now being made compulsory in certain trades; the goldsmiths' company made a rule that all apprentices had to be able to read and write. there are guilds of ironmongers, salters, and haberdashers [hats and caps] a yeoman was the second-rank person of some importance, below a knight, below a gentleman, below a full member of a guild. in london, it meant the journeyman or second adult in a small workshop. these yeomen had their own fraternities and were often on strike. some yeomen in the large london industries, e.g. goldsmiths, tailors, cloth workers, who had served an apprenticeship started their own businesses in london suburbs outside the jurisdiction of their craft to search them. the merchant adventurers created a london fellowship confederacy to make membership of their society and compliance with its regulations binding on all cloth traders and to deal with common interests and difficulties such as taxation, relations with rulers, and dangers at sea. they made and enforced trading rules, chartered fleets, and organized armed convoys when the seas were unsafe and coordinated policies with henry vii. membership could be bought for a large fee or gained by apprenticeship or by being the son of a member. tudor government was paternalistic, curtailing cutthroat competition, fixing prices and wages, and licensing production under grants of monopoly to achieve a stable and contented society and a fair living for all. foreign trade was revived because it was a period of comparative peace. the nation sought to sell as much as possible to foreign nations and to buy at little as possible and thereby increase its wealth in gold and silver, which could be used for currency. ships weighed tons and had twice the cargo space they had previously. their bows were more pointed and their high prows made them better able to withstand gales. the mariners' compass with a pivoting needle and circular dial with a scale was introduced. the scale gave precision to directions. ships had three masts. on the first was a square sail. on the second was a square sail with a small rectangular sail above it. on the third was a three cornered lateen sail. these sails make it possible to sail in almost any direction. this opened the seas of the world to navigation. at this time navigators kept their knowledge and expertise secret from others. adventurous seamen went on voyages of discovery, such as john cabot to north america in , following italian christopher columbus' discovery of the new world in . ferdinand magellan of portugal circumnavigated the world in , proving uncontrovertedly that the earth was spherical rather than flat. theologians had to admit that jerusalem was not the center of the world. sailors overcame their fear of tumbling into one of the openings into hell that they believed were far out into the atlantic ocean and ceased to believe that a red sunset in the morning was due to a reflection from hell. seamen could venture forth into the darkness of the broad atlantic ocean with a fair expectation of finding their way home again. they gradually learned that there were no sea serpents or monsters that would devour foolhardy mariners. they learned to endure months at sea on a diet of salt beef, beans, biscuits, and stale water and the bare deck for a bed. but there were still mutinies and disobedient pilots. mortality rates among seamen were high. there are more navy ships, and they have some cannon. the blast furnace was introduced in the iron industry. a blast of hot air was constantly forced from a stove into the lower part of the furnace which was heating at high temperature a mixture of the iron ore and a reducing agent that combined with the oxygen released. after the iron was extracted, it was allowed to harden and then reheated and hammered on an anvil to shape it and to force out the hard, brittle impurities. blast furnace heat was maintained by bellows worked by water wheels. alchemists sought to make gold from the baser metals and to make a substance that would give them immortality. there was some thought that suffocation in mines, caverns, wells, and cellars was not due to evil spirits, but to bad air such as caused by "exhalation of metals". in , german peter henlein invented the pocket watch and the mainspring inside it. there were morality plays in which the seven deadly sins: pride, covetousness, lust, anger, gluttony, envy, and sloth, fought the seven cardinal virtues: faith, hope, charity, prudence, temperance, justice, and strength, respectively, for the human soul. the play "everyman" demonstrates that every man can get to heaven only by being virtuous and doing good deeds in his lifetime. it emphasizes that death may come anytime to every man, when his deeds will be judged as to their goodness or sinfulness. card games were introduced. the legend of robin hood was written down. the commons gained the stature of the lords and statutes were regularly enacted by the "assent of the lords spiritual and temporal and the commons". the commons now assented instead merely requested enactments. the law royal proclamations clarifying, refining or amplifying the law had the force of parliamentary statutes. in , the king proclaimed that "forasmuch as many of the king our sovereign lord's subjects [have] been disposed daily to hear feigned, contrived, and forged tidings and tales, and the same tidings and tales, neither dreading god nor his highness, utter and tell again as though they were true, to the great hurt of divers of his subjects and to his grievous displeasure: therefore, in eschewing of such untrue and forged tidings and tales, the king our said sovereign lord straitly chargeth and commandeth that no manner person, whatsoever he be, utter nor tell any such tidings or tales but he bring forth the same person the which was author and teller of the said tidings or tales, upon pain to be set on the pillory, there to stand as long as it shall be thought convenient to the mayor, bailiff, or other official of any city, borough, or town where it shall happen any such person to be taken and accused for any such telling or reporting of any such tidings or tales. furthermore the same our sovereign lord straitly chargeth and commandeth that all mayors, bailiffs, and other officers diligently search and inquire of all such persons tellers of such tidings and tales not bringing forth the author of the same, and them set on the pillory as it is above said." he also proclaimed in that no one, except peace officers, may carry a weapon, e.g. bows, arrows, or swords, in any town or city unless on a journey. he proclaimed in that no one may refuse to receive silver pennies or other lawful coin as payment regardless of their condition as clipped, worn, thin, or old, on pain of imprisonment and further punishment. a statute provided that: lords holding castles, manors, lands and tenements by knight's service of the king shall have a writ of right for wardship of the body as well as of the land of any minor heir of a deceased person who had the use [beneficial enjoyment of a trust] of the land for himself and his heirs as if the land had been in the possession of the deceased person. and if such an heir is of age, he shall pay relief to the lord as if he had inherited possession of the land. an heir in ward shall have an action of waste against his lord as if his ancestor had died seised of the land. that is, lands of "those who use" shall be liable for execution of his debt and to the chief lord for his relief and heriot, and if he is a bondsman, they may be seized by the lord. the king tried to retain the benefits of feudal incidents on land by this statute of uses, but attorneys sought to circumvent it by drafting elaborate and technical instruments to convey land free of feudal burdens. any woman who has an estate in dower, or for a term of life, or in [fee] tail, jointly with her husband, or only to herself, or to her use, in any manors, lands, tenements, or other hereditaments of the inheritance or purchase of her husband, or given to the said husband and wife in tail, or for term of life, by any of the ancestors of the said husband, or by any other person seised to the use of the said husband, or of his ancestors, who, by herself or with any after taken husband; discontinue, alienate, release, confirm with warranty or, by collusion, allow any recovery of the same against them or any other seised to their use, such action shall be void. then, the person to whom the interest, title, or inheritance would go after the death of such woman may enter and possess such premises. this does not affect the common law that a woman who is single or remarried may give, sell, or make discontinuance of any lands for the term of her life only. all deeds of gift of goods and chattels made of trust, to the use of the giver [grantor and beneficiary of trust], to defraud creditors are void. it is a felony to carry off against her will, a woman with lands and tenements or movable goods, or who is heir-apparent to an ancestor. this includes taking, procuring, abetting, or knowingly receiving a woman taken against her will. a vagabond, idle, or suspected person shall be put in the stocks for three days with only bread and water, and then be put out of the town. if he returns, he shall spend six days in the stocks. (a few years later this was changed to one and three days, respectively.) every beggar who is not able to work, shall return to the hundred where he last dwelled, is best known, or was born and stay there. no one may take pheasants or partridges by net snares or other devices from his own warren [breeding ground], upon the freehold of any other person, or else forfeit s., one half to the owner of the land and the other half to the suer. no one may take eggs of any falcon, hawk, or swan out of their nest, whether it is on his land or any other man's land, on pain of imprisonment for one year and fine at the king's will, one half to the king, and the other half to the holder of the land, or owner of the swan. no man shall bear any english hawk, but shall have a certificate for any imported hawk, on pain for forfeiture of such. no one shall drive falcons or hawks from their customary breeding place to another place to breed or slay any for hurting him, or else forfeit s. after examination by a justice of the peace, one half going to the king and one half to the suer. any person without a forest of his own who has a net device with which to catch deer shall pay s. for each month of possession. anyone stalking a deer with beasts anywhere not in his own forest shall forfeit s. anyone taking any heron by device other than a hawk or long bow shall forfeit s. d. no one shall take a young heron from its nest or pay s. for each such heron. two justices may decide such an issue, and one tenth of the fine shall go to them. no man shall shoot a crossbow except in defense of his house, other than a lord or one having , s. of land because their use had resulted in too many deer being killed. (the longbow was not forbidden.) no beasts may be slaughtered or cut up by butchers within the walls of a town, or pay d. for every ox and d. for every cow or other beast, so that people will not be annoyed and distempered by foul air, which may cause them sickness. no tanner may be a currier [dressed, dyed, and finished tanned leather] and no currier may be a tanner. no shoemaker [cordwainer] may be a currier and no currier may be a shoemaker. no currier shall curry hides which have not been tanned. no tanner shall sell other than red leather. no tanner may sell a hide before it is dried. no tanner may tan sheepskins. no long bow shall be sold over the price of s. d. good wood for making bows may be imported without paying customs. no grained cloth of the finest making shall be sold for more than s., nor any other colored cloth for more than s. per yard, or else forfeit s. for every yard so sold. no hat shall be sold for more than d. and no cap shall be sold for more than s. d., or else forfeit s. for each so sold. silver may not be sold or used for any use but goldsmithery or amending of plate to make it good as sterling, so that there will be enough silver with which to make coinage. each feather bed, bolster, or pillow for sale shall be stuffed with one type of stuffing, that is, dry pulled feathers or with clean down alone, and with no sealed feathers nor marsh grass, nor any other corrupt stuffings. each quilt, mattress, or cushion for sale shall be stuffed with one type of stuffing, that is, clean wool, or clean flocks alone, and with no horsehair, marsh grass, neatshair, deershair, or goatshair, which is wrought in lime fats and gives off an abominable and contagious odor when heated by a man's body, on pain of forfeiture of such. salmon shall be sold by standard volume butts and barrels. large salmon shall be sold without any small fish or broken-bellied salmon and the small fish shall be packed by themselves only, or else forfeit s. d. herring shall be sold at standard volumes. the herring shall be as good in the middle and in every part of the package as at the ends of the package, or else forfeit s. d. eels shall be sold at standard volumes, and good eels shall not be mixed with lesser quality eels, or else forfeit s. the fish shall be packed in the manner prescribed or else forfeit s. d. for each vessel. fustians shall always be shorn with the long shear, so that it can be worn for at least two years. if an iron or anything else used to dress such injures the cloth so that it wears out after four months, s. shall be forfeited for each default, one half to the king and the other half to the suer. pewter and brass ware for sale shall be of the quality of that of london and marked by its maker, on pain of forfeiture of such, and may be sold only at open fairs and markets or in the seller's home, or else forfeit s. if such false ware is sold, its maker shall forfeit its value, one half to the king and one half to the searchers. anyone using false weights of such wares shall forfeit s., one half to the king and one half to the suer, or if he cannot pay this fine, to be put in the stocks until market day and then be put in the pillory all the market time. no alien nor denizen [foreigner allowed to reside in the nation with certain rights and privileges] may carry out of the nation any raw wool or any woolen cloth which has not been barbed, rowed, and shorn. silk ribbons, laces, and girdles of silk may not be imported, since they can be made in the nation. no one shall import wine into the nation, but on english ships, or else forfeit the wine, one half to the king and one half to the seizer of the wine. no one may take out of the nation any [male] horse or any mare worth more than s. s. or under the age of three years, upon pain of forfeiture of such. however, a denizen may take a horse for his own use and not to sell. this is to stop losing horses needed for defense of the nation and to stop the price of a horse from going up. freemen of london may go to fairs and markets with wares to sell, despite the london ordinance to the contrary. merchants residing in the nation but outside london shall have free access to foreign markets without exaction taken of more than s. sterling by the confederacy of london merchants, which have increased their fee so much, s., that merchants not in the confederacy have been driven to sell their goods in london for less than they would get at a foreign market. exacting more is punishable by a fine of s. and damages to the grieved party of ten times the excess amount taken. for the privilege of selling merchandise, a duty of scavage shall be taken of merchant aliens, but not of denizens. any town official who allows disturbing of a person trying to sell his merchandise because he has not paid scavage, shall pay a fine of s. coin clipped or diminished shall not be current in payment, but may be converted at the king's mint into plate or bullion. anyone refusing to take coins with only normal wear may be imprisoned by the mayor, sheriff, bailiff, constable or other chief officer. new coins, which have a circle or inscription around the outer edge, will be deemed clipped if this circle or inscription is interfered with. the penalty for usury is placement in the pillory, imprisonment for half a year, and a fine of s. (the penalty was later changed to one half thereof.) lawbooks in use at the inns of court included "the books of magna carta with diverse old statutes", "doctor and student" by st. germain, "grand abridgment" by fitzherbert, and "new natura brevium" by lombard. judicial procedure this statute made changes in the judicial process: the chancellor, treasurer, keeper of the king's privy seal, or two of them, with a bishop selected by them, and a temporal lord of the king's council selected by them, and the two chief justices of the king's bench shall constitute the court of the star chamber. it shall have the authority to call before it by writ or by privy seal anyone accused of "unlawful maintenances, giving of liveries, signs and tokens, and retainers by indentures, promises, oaths, writings, or otherwise embraceries of his subjects" and witnesses, and impose punishment as if convicted under due process of law. these laws shall now be enforced: if a town does not punish the murderer of a man murdered in the town, the town shall be punished. a town shall hold any man who wounds another in peril of death, until there is perfect knowledge whether the man hurt should live or die. upon viewing a dead body, the coroner should inquire of the killers, their abettors, and anyone present at the killing and certify these names. in addition, the murderer and accessories indicted shall be tried at the king's suit within a year of the murder, which trial will not be delayed until a private suit is taken. if acquitted at the king's suit, he shall go back to prison or let out with bail for the remainder of the year, in which time the slain man's wife or next of kin may sue. for every inquiry made upon viewing a slain body, coroners shall be paid s. d. out of the goods of the slayer or from a town not taking a murderer, but letting him escape. if the coroner does not make inquiry upon viewing a dead body, he shall be fined s. to the king. if a party fails to appear for trial after a justice has taken bail from him, a record of such shall be sent to the king. henry sat on the star chamber. up to , it heard many cases of forgery, perjury, riot, maintenance, fraud, libel, and conspiracy. it could mete out any punishment, except death or any dismemberment. this included life imprisonment, fines, pillory, whipping, branding, and mutilation. if a justice of the peace does not act on any person's complaint, that person may take that complaint to another justice of the peace, and if there is no remedy then, he may take his complaint to a justice of assize, and if there is not remedy then, he may take his complaint to the king or the chancellor. there shall then be inquiry into why the other justices did not remedy the situation. if it is found that they were in default in executing the laws, they shall forfeit their commissions and be punished according to their demerits. justices of the peace shall make inquiry of all offenses in unlawful retaining, examine all suspects, and certify them to the king's bench for trial there or in the king's council, and the latter might also proceed against suspects on its own initiative on information given. perjury committed by unlawful maintenance, embracing, or corruption of officers, or in the chancery, or before the king's council, shall be punished in the discretion of the chancellor, treasurer, both the chief justices, and the clerk of the rolls. the star chamber, chancellor, king's bench and king and council have the power to examine all defendants, by oath or otherwise, to adjudge them convicted or attainted. they can also be found guilty by confession, examination, or otherwise. if a defendant denied doing the acts of which he is convicted, he was subject to an additional fine to the king and imprisonment. violations of statutes may be heard by the justices of assize or the justices of the peace, except treason, murder, and other felony. actions on the case shall be treated as expeditiously in the courts of the king's bench and common pleas as actions of trespass or debt. proclamation at four court terms of a levy of a fine shall be a final end to an issue of land, tenements, or other hereditaments and the decision shall bind persons and their heirs, whether they have knowledge or not of the decision, except for women-covert who were not parties, persons under the age of twenty-one, in prison, out of the nation, or not of whole mind, who are not parties. these may sue within five years of losing such condition. also, anyone not a party may claim a right, title, claim, or interest in the said lands, tenements, or other hereditaments at the time of such fine recorded, within five years after proclamations of the fine. a defendant who appeals a decision for the purpose of delaying execution of such shall pay costs and damages to the plaintiff for the delay. no sheriff, undersheriff, or county clerk shall enter any complaints in their books unless the complaining party is present. and no more complaints than the complaining party knows about shall be entered. the penalty is s. for each such false complaint, one half to the king and the other half to the suer after examination by a justice of the peace. this is to prevent extortion of defendants by false complaints. the justice shall certify this examination to the king, on pain of a fine of s. a bailiff of a hundred who does not do his duty to summon defendants shall pay a fine of s. for each such default, after examination by a justice of the peace. sheriffs' records of fines imposed and bailiffs' records of fines collected may be reviewed by a justice of the peace to examine for deceit. any sheriff allowing a prisoner to escape, whether from negligence or for a bribe, shall be fined, if the prisoner was indicted of high treason, at least , s. for each escape. however, if the prisoner was in their keeping because of a suspicion of high treason, the fine shall be at least s.; and if indicted of murder or petite treason, at least s.; and if suspected of murder or petite treason, s.; and if suspected of other felonies, s. petite treason was that by a wife to her husband or a man to his lord. any person not responding to a summons for jury service shall be fined d. for the first default, and s. for the second, and double for each subsequent default. a pauper may sue in any court and be assigned a attorney at no cost to him. a justice of the peace to whom has been reported hunting by persons disguised with painted faces or visors or otherwise, may issue a warrant for the sheriff or other county officer to arrest such persons and bring them before the justice. such hunting in disguise or hunting at night or disobeying such warrant is a felony. this is to stop large mobs of disguised people from hunting together and then causing riots, robberies, and murders. benefit of clergy may be used only once, since this privilege has made clerics more bold in committing murder, rape, robbery, and theft. however, there will be no benefit of clergy in the case of murder of one's immediate lord, master, or sovereign. (this begins the gradual restriction over many years of benefit of clergy until it disappears. also, benefit of clergy was often disregarded in unpeaceful times.) for an issue of riot or unlawful assembly, the sheriff shall call jurors, each of lands and tenements at least s. of charter land or freehold or s. d. of copyhold or of both. for each default of the sheriff, he shall pay s. and if the jury acquits, then the justice, sheriff, and under-sheriff shall certify the names of any jurors maintained or embraced and their misdemeanors, or else forfeit s. any person proved to be a maintainer or embracer shall forfeit s. to the king and be committed to ward. the principal leaders of any riot or unlawful assembly shall be imprisoned and fined and be bound to the peace with sureties at a sum determined by the justices of the peace. if the riot is by forty people or heinous, the justices of peace shall certify such and send the record of conviction to the king. the king's steward, treasurer, and comptroller have authority to question by twelve discreet persons any servant of the king about making any confederacies, compassings, conspiracies, or imaginations with any other person to destroy or murder the king or one of his council or a lord. trial shall be by twelve men of the king's household and punishment as by felony in the common law. ohanges in the judicial process other than those made by statute were made by court decision. for instance, the royal justices decided that only the king could grant sanctuary for treason and not the church. after this, the church withdrew the right of sanctuary from second time offenders. the king's council has practically limited itself to cases in which the state has an interest, especially the maintenance of public order. chancery became an independent court rather than the arm of the king and his council. in chancery and the king's bench, the intellectual revival brought by humanism inspires novel procedures to be devised to meet current problems in disputed titles to land, inheritance, debt, breach of contract, promises to perform acts or services, deceit, nuisance, defamation, and the sale of goods. a new remedy is specific performance, that is, performance of an act rather than money damages. evidence is now taken from witnesses. various courts had overlapping jurisdiction. for instance, trespass could be brought in the court of common pleas because it was a civil action between two private persons. it could also be brought in the court of the king's bench because it broke the king's peace. it was advantageous for a party to sue for trespass in the king's court because there a defendant could be made to pay a fine to the king or be imprisoned, or declared outlaw if he did not appear at court. a wrongful step on the defendant's land, a wrongful touch to his person or chattels could be held to constitute sufficient force and an adequate breach of the king's peace to sustain a trespass action. trespass on the case did not require the element of force or of breach of the peace that the trespass offense requires. trespass on the case expands in usage to cover many types of situations. stemming from it is "assumpsit", which provided damages for breach of an oral agreement and for a written agreement without a seal. parliament's supremacy over all regular courts of law was firmly established and it was called "the high court of parliament", paradoxically, since it rarely came to function as a law court. when a land holder enfeoffs his land and tenements to people unknown to the remainderman in [fee] tail, so that he does not know who to sue, he may sue the receiver of the profits of the land and tenements for a remedy. and the receivers shall have the same advantages and defenses as the feoffees or as if they were tenants. and if any deceased person had the use for himself and his heirs, then any of his heirs shall have the same advantages and defenses as if his ancestor had died seised of the land and tenements. and all recoveries shall be good against all receivers and their heirs, and the feofees and their heirs, and the co- feoffees of the receivers and their heirs, as though the receivers were tenants indeed, or feofees to their use, or their heirs of the freehold of the land and tenements. if a person feoffs his land to other persons while retaining the use thereof for himself, it shall be treated as if he were still seised of the land. thus, relief and heriot will still be paid for land in socage. and debts and executions of judgments may be had upon the land and tenements. the penalty for not paying customs is double the value of the goods. the town of london shall have jurisdiction over flooding and unlawful fishing nets in that part of the thames river that flows next to it. the city of london shall have jurisdiction to enforce free passage of boats on the thames river in the city, interruption of which carries a fine of s., two-thirds to the king and one third to the suer. jurors impaneled in london shall be of lands, tenements, or goods and chattels, to the value of s. and if the case concerns debt or damages at least s, the jurors shall have lands, tenements, goods, or chattels, to the value of s. this is to curtail the perjury that has gone on with jurors of little substance, discretion, and reputation. a party grieved by a false verdict of any court in london may appeal to the hustings court of london, which hears common pleas before the mayor and aldermen. each of the twelve alderman shall pick from his ward four jurors of the substance of at least , s. to be impaneled. if twenty-four of them find that the jurors of the petty jury has given an untrue verdict, each such juror shall pay a fine of at least s. and imprisonment not more than six months without release on bail or surety. however, if it is found that the verdict was true, then the grand jury may inquire if any juror was bribed. if so, such juror bribed and the defendant who bribed him shall each pay ten times the amount of the bribe to the plaintiff and be imprisoned not more than six months without release on bail or surety. the bishop's court in london had nine offenders a week by . half of these cases were for adultery and sexual offenses, and the rest were for slander, blasphemy, missing church services, and breach of faith. punishment was penance by walking barefoot before the cross in the sunday procession dressed in a sheet and holding a candle. the following is an example of a case in the chancery court. "a subpoena was sued against sir william capell in chancery because the plaintiff in the subpoena had borrowed pounds from him in plate, which he sold for pounds, and was also bound by a statute-merchant to the aforesaid sir william in pounds for payment of this money, and had also made a feoffment to certain persons of certain land and by indenture willed that if he paid the pounds the feoffees should be feooffees to his use, but otherwise they should be feoffees to the use of the said sir william; and he did not pay the money and so sir william took the profits of the land and sued execution of the statute-merchant. kebell thought he could have this land in conscience, even though he had execution of the statute-merchant, because he does not have this land in return for the money in such a way that he is paid twice, but has it by way of penalty; and (the plaintiff) may bind himself to that, just as he may give the land away for nothing. if someone holds of me in return for one penny of rent, he may bind himself in pounds for payment of this rent and if he fails i may have this penalty in conscience. the chancellor. when someone is beholden in another in a principal debt, the debtee cannot in conscience take anything in respect of this indebtedness except the principal debt, even if the debtor is bound to him in twenty penalties. kebell. in that case you might do much good to those who are bound in this court to keep the peace and are to forfeit their bonds. the chancellor. the sum which is forfeited for breaking the peace may be taken in conscience, for nothing can be well done nor can the realm be governed without peace. this court could not be held without peace. therefore it is right that whoever acts against the peace should be punished. and by breaking the peace a crime is committed, and therefore it is right that he should pay this forfeiture. (but the chancellor held in this case that the debtee may in conscience take so much of the penalty as represents his damage by the withholding of the debt.)" this is the case of the earl of suffolk v. berney in the common pleas court: " if the parker of a park licences a man to kill deer in the park, and he kills a deer by virtue of this licence, both of them commit trespass; for he has no authority to do this, his authority being to keep and not to give or sell. but if someone has a warrant to take a deer, and he is a gentleman, he may take company with him and hunt there for the same deer according to his degree (but not otherwise). and it was held that if a parker has a warrant for a deer, and by virtue of that he requests various people to help him kill this deer, everyone who goes with him may chase after it by licence from the parker by parol, without writing." an example of a manorial case is: "and they present that margaret edmond, who held of the lord according to the custom of the manor one cottage with curtilage, four acres of land and one acre of meadow lately in the tenure of william crosse, took as her husband a certain unknown outsider without the lord's licence. therefore she forfeited her estate in the aforesaid cottage and land, by reason of which there accrues to the lord as a heriot one heifer, price s. and thereupon william staunton came and took the said cottage, land and meadow from the lord, to hold to himself and his according to the custom of the manor, rendering s. therein to the lord yearly at the terms usual there, thus d. yearly of increment for rent. and he will give the lord s. in the name of heriot when it should accrue.. and he gives nothing to the lord as a fine, but he did fealty to the lord. another manorial case is: and that john mille, who held of the lord for the term of his life according to the custom of the aforesaid manor as of the part of thomas long, knight, one messuage and three yardlands of land there by the rent and services therein owed, has ended his last day since the last court, whereof there accrues to the lord as heriot one horse, price s. and that edith, the wife of the said john, claims to hold the aforesaid messuage and land with the appurtenances while she should keep herself single and chaste according to the custom of the aforesaid manor. and she did fealty to the lord. and she was admitted as tenant therein by the pledge of william spenser and john smyth, both for the matter and for repair of the aforesaid tenement etc."` chapter the times: - renaissance humanism came into being in the nation. in this development, scholars in london, oxford, and cambridge emphasized the value of classical learning, especially platonism and the study of greek literature as the means of better understanding and writing. they studied the original greek texts and became disillusioned with the filtered interpretations of the church, for example of the bible and aristotle. there had long been displeasure with the priests of the church. they were supposed to preach four times yearly, visit the sick, say the daily liturgies, and hear confessions at least yearly. but there were many lapses. many were not celibate, and some openly lived with a woman and had children. complaints about them included not residing within their parish community, doing other work such as raising crops, and taking too much in probate, mortuary fees, and marriage fees. probate fees had risen from at most s. to s. in the last hundred years. mortuary fees ranged from / to / of a deceased person's goods. sanctuary was abused. people objected to the right of arrest by ecclesiastical authorities. also, most parish priests did not have a theology degree or even a bachelor's degree, as did many laymen. in fact, many laymen were better educated than the parish priests. no one other than a laborer was illiterate in the towns. humanist grammar [secondary] schools were established in london by merchants and guilds. in , the founder and dean of st. paul's school placed its management in the hands of london "citizens of established reputation" because he had lost confidence in the good faith of priests and noblemen. the sons of the nobility, attorneys, and merchants were starting to go to grammar school now instead of being taught at home by a tutor. at school, they mingled with sons of yeomen, farmers, and tradesmen, who were usually poor. the usual age of entry was six or seven. classical latin and greek were taught and the literature of the best classical authors was read. secondary education teachers were expected to know latin and have studied the ancient philosophers, history, and geography. the method of teaching was for the teacher to read textbooks to the class from a prepared curriculum. the students were taught in latin and expected not to speak english in school. they learned how to read and to write latin, to develop and amplify a theme by logical analysis, and to essay on the same subject in the narrative, persuasive, argumentative, commending, consoling, and inciting styles. they had horn books with the alphabet and perhaps a biblical verse on them. this was a piece of wood with a paper on it held down by a sheet of transparent horn. they also learned arithmetic (solving arithmetical problems and casting accounts). disobedience incurred flogging by teacher as well as by parents. spare the rod and spoil the child was the philosophy. schools now guarded the morals and behavior of students. there were two week vacations at christmas and at easter. royal grammar books for english and latin were proclaimed by henry in to be the only grammar book authorized for students. in , he proclaimed a certain primer of prayers in english to be the only one to be used by students. the first school of humanist studies arose in oxford with the foundation of corpus christi college in by bishop richard fox. it had the first permanent reader or professor in greek. the professor of humanity was to extirpate all barbarisms by the study of cicero, sallust, valerius maximus, and quintilian. the reader of theology was to read texts of the holy fathers but not those of their commentators. oxford university was granted a charter which put the greater part of the town under control of the chancellor and scholars. the mayor of oxford was required to take an oath at his election to maintain the privileges and customs of the university. roman law and other regius professorships were founded by the king at oxford and cambridge. teaching of undergraduates was the responsibility of the university rather than of the colleges, though some colleges had live-in teachers. most colleges were exclusively for graduate fellows, though this was beginning to change. the university took responsibility for the student's morals and behavior and tutors sometimes whipped the undergraduates. for young noblemen, a more important part of their education than going to university was travel on the continent with a tutor. this exposure to foreign fields was no longer readily available through war or pilgrimage. the purpose was practical - to learn about foreign people and their languages, countries, and courts. knowledge of the terrain, resources, prosperity, and stability of their countries was particularly useful to a future diplomatic or political career. understanding of the celestial world began to change. contemporary thought was that the nature of all things was to remain at rest, so that movement and motion had to be explained by causes. the earth was stationary and the heavens were spherical and revolved around the earth every twenty-four hours. the universe was finite. the firmament extended outward in a series of rotating, crystalline, ethereal spheres to which were attached the various points of celestial geography. first came the circle of the moon. the sun orbited the earth. the fixed stars rotated on an outer firmament. finally, there was the abode of god and his heavenly hosts. different principles ruled the celestial world; it was orderly, stable, ageless, and enduring. but the world of man changed constantly due to its mixed four elements of air, earth, fire, and water each trying to disentangle itself from the others and seeking to find its natural location. the heavenly spheres could affect the destinies of men, such as through fate, fortune, intelligence, cherubim, seraphim, angels, and archangels. astrologers read the celestial signs and messages. then a seed of doubt was cast on this theory by nicholaus copernicus, a timid monk in poland, who found inconsistencies in ptolemy's work, but saw similarity in the movements of the earth and other planets. he inferred from the "wandering" planetary movements with loops that their motion could be explained simply if they were revolving in circular paths around the sun, rather than around the earth. in his book of , he also expressed his belief that the earth also revolved around the sun. this idea so shocked the world that the word "revolution" became associated with radical change. he thought it more likely that the earth rotated than that the stars moved with great speed in their large orbits. he proposed that the earth spins on its own axis about once every twenty-four hours, with a spin axis at about a / degree tilt from the orbital axis, thus explaining a slow change in the overall appearances of the fixed stars which had been observed since the time of ptolemy. he deduced from astronomical measurements that the correct order of the planets from the sun was: mercury, venus, earth, mars, jupiter, and saturn. the church considered his ideas heretical because contradictory to its dogma that man and the earth were the center of the universe. a central sun evoked images of pagan practices of sun worship. news of new ideas in science traveled quickly to english scholars and professionals. the physicians of london were incorporated to oversee and govern the practice of medicine. medicine consisted largely of magical remedies of sorcerers and astrologers and herbal remedies administered by quacks. people still generally believed that disease was caused by witches and demons. a faculty of physicians was established at oxford and cambridge. a royal college of physicians was founded in london in by the king's physician. the college of physicians taught more practical medicine and anatomy than the universities. only graduates of the college of physicians or of oxford or cambridge were allowed to practice medicine or surgery. medical texts were hippocrates and galen. these viewed disease as only part of the process of nature without anything divine. they stressed empiricism, experience, collections of facts, evidences of the senses, and avoidance of philosophical speculations. some observations of hippocrates were: -"when sleep puts an end to delirium, it is a hopeful sign." -"when on a starvation diet, the patient should not be allowed to become fatigued." "old men usually have less illness than young ones, but such as they have last, as a rule, till death." "pleurisy, pneumonia, colds, sore throat, and headache are more likely to occur during winter seasons." "when one oversleeps, or fails to sleep, the condition suggests disease." hippocrates had asserted that madness was simply a disease of the brain and then galen had agreed and advocated merciful treatment of the insane. galen's great remedies were proper diet, exercise, massage, and bathing. he taught the importance of a good water supply and good drainage. he advised that baking bread in a large oven was superior to cooking in a small oven, over ashes, or in a pan in wholesomeness, digestibility, and flavor. greek medicinal doctrines were assumed, such as that preservation of the health of the body was dependent on air, food, drink, movement and repose, sleeping and waking, excretion and retention, and the passions. it was widely known that sleep was restorative and that bad news or worry could spoil one's digestion. an italian book of showed that post-mortem examinations could show cause of death by gallstones, heart disease, thrombosis of the veins, or abscesses. in began the practice of giving bodies of hanged felons to surgeons to dissect. this was to deter the commission of felony. there was some feeling that dissection was a sacrilege, that the practice of medicine was a form of sorcery, and that illness and disease should be dealt with by prayer and/or atonement because caused by sin, the wrath of god, or by the devil. food that was digested was thought to turn into a vapor which passed along the veins and was concreted as blood, flesh, and fat. after , there was a book listing hundreds of drugs with preparation directions, but their use and application was by trial and error. flemish physician andreas vesalius, secretly dissected human corpses, finding them hanging on public gibbets or competing with dogs for those incompletely buried in cemeteries. he begged doctors to allow him to examine the bodies of their fatal cases. he ingratiated himself with judges who determined the time and place of execution of criminals. in he published the first finely detailed description of human anatomy. in it, there was no missing rib on one side of man, and this challenged the theory of the woman eve having been made from a rib of the man adam. in the s, ambroise pare from france, a barber-surgeon who was the son of a servant, was an army surgeon. wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. after he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. so he advocated ceasing the practice of cauterizing wounds. he also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques. in switzerland, theophrastus paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. he believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental constitution, cosmic influences differing with climate and country, or affliction sent providence. he urged that wounds be kept clean rather than given poultices. in , he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. for instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. he perceived that syphilis was caused by contagion and used mercury to cure it. he found curative powers also in opium, sulphur, iron, and arsenic. opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. he claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. he believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. he noticed that one's attitudes and emotions, such as anger, could affect one's health. he sometimes used suggestion and signs to help a patient form mental images, which translated into cures. he saw insanity as illness instead of possession by evil spirits. students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys. in , anthony fitzherbert wrote "boke of husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. it was used by many constantly, and was often carried around in the pocket. this began a new way to disseminate new methods in agriculture. he also wrote a "boke of surveying", which relied on the perch rod and compass dial, and gave instruction on how to set down the results of a survey. in , gemma frisius laid down the principles of topographical survey by triangulation. this improved the quality of surveys and produced accurate plots. geoffrey chaucer's "canterbury tales" was a popular book. through chaucer, london english became a national standard and the notion of "correct pronunciation" came into being.the discoveries and adventures of amerigo vespucci, a portuguese explorer, were widely read. the north and south american continents were named for him. london merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. twelve great companies dominated city politics and effectively chose the mayor and aldermen. they were, in order of precedence, mercers, grocers, drapers, fishmongers, goldsmiths, skinners, tailors, haberdashers, ironmongers, salters, vintners, and the clothworkers (composed from leading fullers and shearmen). the leading men of these guilds were generally aldermen and the guilds acted like municipal committees of trade and manufactures. then they superintended the trade and manufactures of london much like a government department. they were called livery companies and categorized their memberships in three grades: mere membership, livery membership, and placement on the governing body. livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and municipal rights, in the fullest degree. they generally had a right to a place at the company banquets. they were invited by the governing body, as a matter of favor, to other entertainments. these liverymen were usually those who had bought membership and paid higher fees because they were richer. their pensions were larger than those of mere members. those with mere membership were freemen who had only the simple freedom of the trade. the masters were usually householders. the journeymen, yeomanry, bachelors were simple freemen. most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. for instance, many members of the goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. the freedom and rights of citizenship of the city could only be obtained through membership in a livery company. a lesser guild, the leathersellers, absorbed the glovers, pursers, and pouchmakers, some of whom became wage earners of the leathersellers. but others of these craftsmen remained independent. the whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the skinners. londoners went to the fields outside the city for recreation and games. when farmers enclosed some suburban common fields in , a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. the last major riot in london was aroused by a speaker on may day in when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. a duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters. many english migrated to london. there were ambitious young men and women hopeful of betterment through employment, apprenticeship, higher wages, or successful marriage. on the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. there was much social mobility. for instance, between and , of persons admitted as freemen of london, were the sons of gentlemen, the sons of yeomen, and the sons of farm workers. london grew in population about twice as fast as the nation. there are wards of london as of . this is the number for the next four centuries. each ward has an alderman, a clerk, and a chief constable. there are also in each ward about to elected officials including prickers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. the wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. this contributed greatly to social stability. in , henry ordered the london brothels closed. a small gaol was established in the clink district of southwark, giving the name "clink" to any small gaol. london ordinances required journeymen to work from a.m. to p.m. in winter, with a total of minutes breaks for breakfast, dinner, and an afternoon drink, for d. in the summer they had to work for two hours longer for d. at its peak in the s the court employed about gentlemen, which was about half the peerage and one-fifth of the greater gentry. henry issued a proclamation ordering noblemen and gentlemen in london not employed by the court to return to their country homes to perform their service to the king. though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. the humanist thomas more was a university trained intellectual. his book "utopia", idealized an imaginary society living according to the principles of natural virtue. in it, everything is owned in common and there is no need for money. all believe that there is a god who created the world and all good things and who guides men, and that the soul is immortal. but otherwise people choose their religious beliefs and their priests. from this perspective, the practices of other christians, scholastic theologians, priests and monks, superstition, and ritual looked absurd. more encouraged a religious revival. aristotle's position that virtuous men would rule best is successfully debated against plato's position that intellectuals and philosophers would be the ideal rulers. more believed the new humanistic studies should be brought to women as well as to men. he had tutors teach all his children latin, greek, logic, theology, philosophy, mathematics, and astronomy from an early age. his eldest daughter margaret became a recognized scholar and translated his treatise on the lord's prayer. other high class women became highly educated. they voiced their opinions on religious matters. in the s, the duchess of suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in latin. she and the countess of sussex supported ministers and established seminaries for the spread of the reformed faith. more pled for proportion between punishment and crime. he urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. he opined that the purpose of punishment was to reform offenders. he advocated justice for the poor to the standard of justice received by the rich. erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. he wrote the book "in praise of folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. for instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? childhood and senility are the most pleasant stages of life because ignorance is bliss. old age forgetfulness washes away the cares of the mind. a foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. the seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. the least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. as an example, is anyone happier than a moron or fool? their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. fools are free from the fear of death and from the pangs of conscience. they are not filled with vain worries and hopes. they are not troubled by the thousand cares to which this life is subject. they experience no shame, fear, ambition, envy, or love. in a world where men are mostly at odds, all agree in their attitude towards these innocents. they are sought after and sheltered; everyone permits them to do and say what they wish with impunity. however, the usual opinion is that nothing is more lamentable than madness. the christian religion has some kinship with folly, while it has none at all with wisdom. for proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. finally, no people act more foolishly than those who have been truly possessed with christian piety. they give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. they disdain life, and utterly prefer death. in short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. what is this, if not to be mad? the life of christians is run over with nonsense. they make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. they must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. they do this with such brazen skill that our attorneys are often jealous of them. attorney christopher st. german wrote the legal treatise "doctor and student", in which he deems the law of natural reason to be supreme and eternal. the law of god and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. examples of the law of reason are: it is good to be loved. evil is to be avoided. do onto others as you would have them do unto you. do nothing against the truth. live peacefully with others. justice is to be done to every man. no one is to wrong another. a trespasser should be punished. from these is deduced that a man should love his benefactor. it is lawful to put away force with force. it is lawful for every man to defend himself and his goods against an unlawful power. like his father, henry viii dominated parliament. he used this power to reform the church of england in the 's. the protestant reformation cause, started in germany in by martin luther posting his thesis, had become identified with henry's efforts to have his marriage of eighteen years to the virtuous catherine annulled so he could marry a much younger woman: anne and have a son. the end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. henry viii was egotistical, arrogant, and self- indulgent. this nature allowed him to declare himself the head of the church of england instead of the pope. henry used and then discarded officers of state. one such was thomas wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of classical learning. he rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. he was a court priest when he aligned himself with henry, both of whom wanted power and glory and dressed extravagantly. but he was brilliant and more of a strategist than henry. wolsey called himself a reformer and started a purge of criminals, vagrants and prostitutes within london, bringing many before the council. but most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. wolsey rose to be chancellor to the king and also archbishop of york. as the representative of the pope for england, he exercised almost full papal authority there. but he controlled the church in england in the king's interest. he was second only to the king and he strengthened the crown by consolidating power and income that had been scattered among nobles and officeholders. he also came to control the many courts. wolsey centralized the church in england and dissolved the smaller monasteries, the proceeds of which he used to build colleges at oxford and his home town. he was an impartial and respected justice. when wolsey was not able to convince the pope to give henry an annulment of his marriage, henry dismissed him and took his property, shortly after which wolsey died on his way to be imprisoned in the tower to be tried for treason. thomas. cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. he was the son of a clothworker/blacksmith/brewer/innkeeper, like wolsey, he was a natural orator. he drafted and had passed legislation that created a new church of england. he had all men swear an oath to the terms of the succession statute. thomas more, the successor chancellor to wolsey, was known for his honesty and was a highly respected man. more did not yield to henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of england, instead of the pope. he did not expressly deny this supremacy statute, so was not guilty of treason under its terms. but silence did not save him. he was attainted for treason on specious grounds and beheaded. his conviction rested on the testimony of one perjured witness, who misquoted more as saying that parliament did not have the power to require assent to the supremacy statute because it was repugnant to the common law of christendom. henry ruled with an iron fist. in , he issued a proclamation that "any rioters or those in an unlawful assembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." in , he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. in , he proclaimed that there would be no shooting by handgun except on a shooting range. henry had parliament pass bills of attainder against many people. for the first time, harsh treatment of prisoners in the tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy. through his host of spies, cromwell heard what men said to their closest friends. words idly spoken were distorted into treasonable utterances. fear spread through the people. silence was a person's only possibility of safety. cromwell developed a technique for the management of the house of commons which lasted for generations. he promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the bible. a reformed english bible was put in all parish churches. reformers were licensed to preach. cromwell ordered sermons to be said which proclaimed the supremacy of the king. he instituted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. he dissolved all the lesser monasteries. when cromwell procured a foreign wife for henry whom henry found unattractive, he was attainted and executed. henry now reconstructed his council to have a fixed membership, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. because it met in the king's privy lodgings, it was called the "privy council". it had an executive function and met daily instead of just during the terms of the westminster courts from late autumn to early summer. it communicated with the king through intermediaries, of whom the most important was the king's secretary. the judicial part of the council was the court of the star chamber, which met at westminster. when henry went to war in france, part of the council went with him, and part of it stayed to attend the queen regent. thomas cranmer, archbishop of canterbury, wrote the first english common book of prayer. with its use beginning in , church services were to be held in english instead of latin. the celebration of the lord's supper was a communion among the parishioners and minister all sharing wine and bread. it replaced the mass, in which the priests were thought to perform a miraculous change of the substance of bread and wine into the body and blood of christ, which the priest then offered as a sacrifice for remission of pain or guilt. this reflected the blood sacrifice of christ dying on the cross. in the mass, only the priests drank the wine. the mass, miracles, the worship of saints, prayers for souls in purgatory, and pilgrimages to shrines such as that of thomas becket, were all to be discontinued. imprisonment or exile rather than death was made the penalty for heresy and blasphemy, and also for adultery. after the king dissolved the greater monasteries, he took and sold their ornaments, silver plate and jewelry, lead from roofs of their buildings, and finally much of the land itself. many maps of manors and lands were made at this time. three monasteries were converted into the first three treating hospitals in london, one for the diseased, one for the poor, and one, bethlehem (or "bedlam" for short), for the mentally ill. but there were still many poor, sick, blind, aged, and impotent people in the streets since the closure of the monasteries. in , there were , people in need of relief, including orphans, sick or aged, poor men overburdened with their children, decayed householders, and idle vagabonds. the poor often begged at parishes, where they spread disease. london then set up a poor relief scheme. the bridewell was established to set to work the idle, vagabonds, and prostitutes making feather bed ticks and wool-cards, drawing of wire, carding, knitting, and winding of silk. parishes were required to give money for the poor in . other towns followed london's lead in levying a poor rate. henry used the proceeds from the sale of the monasteries for building many new palaces and wood ships for his navy. in war, these navy ships had heavy guns which could sink other ships. in peace time, these ships were hired out to traders. large ships were constructed in docks, made partly by digging and partly by building walls. in , henry issued a proclamation ordering all vagabonds, ruffians, masterless men, and evil-disposed persons to serve him in his navy. the former land of the monasteries, about % of the country's land, was sold and resold, usually to great landowners, or leased. title deeds became important as attorneys sought the security that title could give. some land went to entrepreneurial cloth manufacturers, who converted the buildings for the manufacture of cloth. they bought the raw wool and hired craftsmen for every step of the manufacturing process to be done in one continuous process. this was faster than buying and selling the wool material between craftsmen who lived in different areas. also, it was more efficient because the amount of raw wool bought could be adjusted to the demand for cloth. many landowners now could live in towns exclusively off the rents of their rural land. rents were increased so much that tenants could not pay and were evicted. they usually became beggars or thieves. much of their former land was converted from crop raising to pasture for large herds of sheep. arable farming required many workers, whereas sheep farming required only one shepherd and herdsman. there were exceptional profits made from the export of wool cloth. but much raw wool was still exported. its price went up from s. d. per tod [about pounds] in to s. d. in . villeinage was now virtually extinct. but a lord could usually claim a small money-rent from the freeholder, sometimes a relief when his land was sold or passed at death, and occasionally a heriot from his heir. there was steady inflation. landlords made their leases short term so that they could raise rents as prices rose. copyholders gradually acquired a valuable right in their holdings: their rent became light - less that a shilling an acre. the knights had % of the land, the nobles %, the church %, and king %. at least % of the population still lived in the country. rich traders built town or country houses in which the emphasis was on comfort and privacy. there was more furniture, bigger windows filled with glass, thick wallpaper, and formal gardens. use of thick, insulating wallpaper rose with the rise of paper mills. it was stenciled, hand-painted, or printed. some floors were tiled instead of stone or wood. they were still strewn with straw. the owners ate in a private dining room and slept in their own rooms with down quilts. their soap was white. they had clothing of white linen and white wool, leather slippers, and felt hats. men wore long tunics open at the neck and filled in with pleated linen and enormous puffed sleeves. the fortunes of landowners varied; some went into aristocratic debt by ostentatiously spending on building, clothes, food, and drink, and some became indebted by inefficient management. some had to sell their manors and dismiss their servants. all people generally had enough food because of the commercialization of agriculture. even the standard meal of the peasant was bread, bacon, cheese, and beer or cider, with beef about twice a week. also, roads were good enough for the transport of foodstuffs thereon. four-wheeled wagons for carrying people as well as goods. goods were also transported by the pulling of barges on the rivers from paths along the river. a plough with wheels was used as well as those without. henry made proclamations reminding people of the apparel laws, but they were difficult to enforce. henry also made a proclamation limiting the consumption of certain meat according to status. seven dishes were allowed to bishops, dukes, marquises, and earls; six to other temporal lords; five to justices, the king's council, sheriffs, and persons with an income of at least pounds yearly or goods worth pounds; four to persons with an income of at least pounds or goods worth pounds; and three dishes to persons with an income of at least pounds or goods worth pounds. there were limits on types of meat served, such as a maximum of one dish of great fowl such as crane, swan, and peacock; eight quail per dish; and twelve larks in a dish. people used tin or pewter dishes, platters, goblets, saucers, spoons, saltcellars, pots, and basins. they used soap to wash themselves, their clothes, and their dishes. a solid, waxy soap was from evaporating a mixture of goat fat, water, and ash high in potassium carbonate. they had bedcovers on their beds. cloth bore the mark of its weaver and came in many colors. cloth could be held together with pins that had a shank with a hook by which they were closed. they burned wood logs in the fireplaces in their houses. so much wood was used that young trees were required by statute to be given enough lateral space to spread their limbs and were not cut down until mature. the organ and the harp, precursor to the piano, were played. people went to barbers to cut their hair and to extract teeth. they went to people experienced with herbs, roots, and waters for treatment of skin conditions such as sores, cuts, burns, swellings, irritated eyes or scaly faces. for more complicated ailments, they went to physicians, who prescribed potions and medicines. they bought potions and medicines from apothecaries and pharmacists. the king, earls, who ruled counties, and barons, who had land and a place in the house of lords, still lived in the most comfort. the king's house had courtyards, gardens, orchards, wood-yards, tennis courts, and bowling alleys. the walls of the towns were manned by the citizens themselves, with police and watchmen at their disposal. in inns, travelers slept ten to a bed and there were many fleas and an occasional rat or mouse running through the rushes strewn on the floor. the inn provided a bed and ale, but travelers brought their own food. each slept with his purse under his pillow. in markets, sellers set up booths for their wares. they sold grain for making oatmeal or for sowing one's own ground. wine, butter, cheese, fish, chicken, and candles could also be bought. butchers bought killed sheep, lambs, calves, and pigs to cut up for selling. tanned leather was sold to girdlemakers and shoemakers. goods bought in markets were presumed not to be stolen, so that a purchaser could not be dispossessed of goods bought unless he had knowledge that they were stolen. the ruling group of the towns came to be composed mostly of merchants, manufacturers, attorneys, and physicians. some townswomen were independent traders. the governed class contained small master craftsmen and journeyman artisans, small traders, and dependent servants. the major streets of london were paved with stone, with a channel in the middle. more water conduits from hills, heaths, and springs were built to provide the citizens of london with more water. the sewers carried only surface water away. households were forbidden to use the sewers. privies emptied into cesspools. the merchant adventurers' fellowship brought virtually all adventurers under its control and organized and regulated the national cloth trade. it had a general court of the adventurers sitting in the london mercers' hall. various companies were granted monopolies for trade in certain areas of the world such as turkey, spain, france, venice, the baltic, and africa. these were regulated companies. that is they obtained complete control of a particular foreign market, but any merchant who cared to join the company, pay its dues, and obey its regulations, might share in the benefits of its monopoly. the companies generally confined trade to men who were primarily merchants and not shopkeepers. in explorer sebastian cabot formed the muscovy company, which was granted a monopoly in its charter for trade with north russia. it was oriented primarily to export english woolen cloth. it was the first company trading on a joint stock, which was arranged as a matter of convenience and safety. the risks were too great for any few individuals. it hired ships and assigned space to each member to ship his goods at his own risk. the dividend was returned to the subscribers of the capital they put in plus an appropriate share of any profits made on the voyage. the members began leaving their money with the company for the next voyage. a general stock grew up. in were the first industrial companies: mines royal, and mineral and battery works. the cloth, mining, iron, and woodcraft industries employed full-time workers on wages. in the ironworks and foundries, the furnace blowing engines were worked by water wheels or by a gear attached to donkeys or horses. the forge hammers were worked at first by levers and later by water wheels. the day and night hammering filled the neighborhood with their noise. land held in common was partitioned. there were leases of mansion houses, smaller dwelling houses, houses with a wharf having a crane, houses with a timber yard, houses with a garden, houses with a shed, shops, warehouses, cellars, and stables. lands with a dye-house or a brew-house were devised by will along with their dying or brewing implements. there were dairies making butter and cheese. citizens paid taxes to the king amounting to one tenth of their annual income from land or wages. merchants paid "forced loans" and benevolences. the national government was much centralized and had full-time workers on wages. a national commission of sewers continually surveyed walls, ditches, banks, gutters, sewers, ponds, bridges, rivers, streams, mills, locks, trenches, fish- breeding ponds, and flood gates. when low places were threatened with flooding, it hired laborers, bought timber, and hired carts with horses or oxen for necessary work. mayors of cities repaired water conduits and pipes under their cities' ground. the matchlock musket came into use, but did not replace the bow because its matchcord didn't remain lit in rainy weather. the matchlock was an improvement over the former musket because both hands could be used to hold and aim the matchlock musket because the powder was ignited by a device that touched a slow-burning cord to the powder when a trigger was pulled with one finger. after the break with rome, cooperation among villagers in church activities largely ceased. the altars and images previously taken care of by them disappeared and the paintings on the walls were covered with white or erased, and scripture texts put in their place. people now read the new bible, the "paraphrases" of erasmus, foxe's "book of martyrs", and the works of bishop jewel. the book of martyrs taught the duty and splendor of rising above all physical danger or suffering. the canon law of the church was abolished and its study prohibited. professorships of the civil law were founded at the two universities. the inns of court grew. attorneys had more work with the new laws passed to replace the church canons of the church. they played an important role in town government and many became wealthy. they acquired town houses in addition to their rural estates. church reforms included abolishing church sanctuaries. benefit of clergy was restricted more. parsons were allowed to marry. archbishops were selected by the king without involvement by the pope. decisions by archbishops in testamentary, matrimonial, and marriage annulment matters were appealable to the court of chancery instead of to the pope. the clergy's canons were subject to the king's approval. the control of the church added to the powers of the crown to summon and dissolve parliament, coin money, create peers [members of the house of lords who received individual writs of summons to parliament], pardon criminals, order the arrest of dangerous persons without customary process of law in times of likely insurrection, tax and call men to arms without the consent of parliament if the country were threatened with invasion. about there began indictments and executions for witchcraftery which lasted for about a century. one of the reasons for suspecting a woman to be a witch was that she lived alone, which was very unusual. henry ordered all alien anabaptists, who denied the validity of infant baptism, to leave the realm. the law offices may not be bought and sold, but only granted by justices of the royal courts. the king's proclamations shall be observed and kept as though they were acts of parliament. the penalty shall not be more than that stated in the proclamation, except for heresy. a person having land in socage or fee simple may will and devise his land by will or testament in writing. a person holding land by knight's service may will and devise by his last will and testament in writing part of his land to his wife and other parts of his land to his children, as long as / of entailed land is left to the king. anyone serving the king in war may alienate his lands for the performance of his will, and if he dies, his feoffees or executors shall have the wardship of his heir and land. a person who leases land for a term of years, even if by indenture or without a writing, may have a court remedy as do tenants of freehold for any expulsion by the lessor which is contrary to the lease, covenant, or agreement. these termers, their executors and assigns, shall hold and enjoy their terms against the lessors, their heirs and assigns. the lessor shall have a remedy for rents due or waste by a termer after recovering the land as well as if he had not recovered the land. a lord may distrain land within his fee for rents, customs, or services due without naming the tenant, because of the existence of secret feoffments and leases made by their tenants to unknown persons. anyone seised of land to the use or trust of other persons by reason of a will or conveyance shall be held to have lawful seisin and possession of the land, because by common law, land is not devisable by will or testament, yet land has been so conveyed, which has deprived married men of their courtesy, women of their dower, the king of the lands of persons attainted, the king of a year's profits from felons' lands, and lords of their escheats. (this was difficult to enforce.) a woman may not have both a jointure [promise of husband to wife of property or income for life after his death] and dower of her husband's land. (persons had purchased land to hold jointly with their wives) a sale of land must be in writing, sealed, and registered in its county with the clerk of that county. if the land is worth less than s. per year, the clerk is paid d. if the land exceeds s. yearly, the clerk is paid s. d. an adult may lease his lands or tenements only by a writing under his seal for a term of years or a term of life, because many people who had taken leases of lands and tenements for a term of years or a term of lives had to spend a lot for repair and were then evicted by heirs of their lessors. a husband may not lease out his wife's land. no woman-covert, child, idiot, or person of insane memory may devise land by will or testament. the land of tenants-in-common may be partitioned by them so that each holds a certain part. no bishop or other official having authority to take probate of testaments may take a fee for probating a testament where the goods of the testator are under s., except that the scribe writing the probate of the testament may take d., and for the commission of administration of the goods of any man dying intestate, being up to s, may be charged d. where the goods are over s. but up to s. sterling, probate fees may be s. d. at most, whereof the official may take s. d. at most, with d. residue to the scribe for registering the testament. where the goods are over s. sterling, probate fees may be s. at most, whereof the official may take s. d. at most, with s. d. residue to the scribe, or the scribe may choose to take d. per lines of writing of the testament. if the deceased had willed by his testament any land to be sold, the money thereof coming nor the profits of the land shall not be counted as the goods or chattel of the deceased. where probate fees have customarily been less, they shall remain the same. the official shall approve and seal the testament without delay and deliver it to the executors named in such testaments for the said sum. if a person dies intestate or executors refuse to prove the testament, then the official shall grant the administration of the goods to the widow of the deceased person, or to the next of kin, or to both, in the discretion of the official, taking surety of them for the true administration of the goods, chattels, and debts. where kin of unequal degree request the administration, it shall be given to the wife and, at his discretion, other requestors. the executors or administrators, along with at least two persons to whom the deceased was indebted, or to whom legacies were made, or, upon their refusal or absence, two honest kinsmen, shall make an inventory of the deceased's personal property, goods, chattels, ware, merchandise, and take it upon their oaths to the official. no parish clergyman or other spiritual person shall take a mortuary fee or money from a deceased person with movable goods under the value of s., a deceased woman-covert, a child, a person keeping no house, or a traveler. only one mortuary fee may be taken of each deceased and that in the place where he most dwelled and lived. where the deceased's personal property and goods are to the value of s. or more, above his debts paid, and under s., a mortuary up to s. d. may be taken. where such goods are s. or more and under s., mortuary up to s. d. may be taken. where such goods are s. or above, mortuary up to s. may be taken. but where mortuaries have customarily been less, they shall remain the same. executors of a will declaring land to be sold for the payment of debts, performance of legacies to wife and children, and charitable deeds for the health of souls, may sell the land despite the refusal of other executors to agree to such sale. a man may not marry his mother, stepmother, sister, niece, aunt, or daughter. any clergy preaching contrary to the king's religious doctrine shall recant for the first offense. he shall abjure and bear a faggot (a badge resembling a faggot of wood which would have been used for burning him as a heretic) for the second offense. if he refuses to abjure or bear a faggot or offends a third time, he shall be burned and lose all his goods. if a layperson teaches, defends, or maintains a religious doctrine other than the king's, he shall recant and be imprisoned for twenty days for the first offense. he shall abjure and bear a faggot if he does not recant or offends a second time. he shall forfeit his goods and suffer perpetual imprisonment if he does not abjure or bear a faggot or offends a third time. the entry of an apprentice into a craft shall not cost more than s. d. after his term, his entry shall not be more than s. d. this replaced the various fees ranging from this to s. no master of a craft may require his apprentice to make an oath not to compete with him by setting up a shop after the term of his apprenticeship. no alien may take up a craft or occupation in the nation. no brewer of ale or beer to sell shall make wood vessels or barrels, and coopers shall use only good and seasonable wood to make barrels and shall put their mark thereon. every ale or beer barrel shall contain of the king's standard gallons. the price of beer barrels sold to ale or beer brewers or others shall be d. an ale-brewer may employ in his service one cooper only to bind, hoop and pin, but not to make, his master's ale vessels. no butcher may keep a tanning-house. tanned leather shall be sold only in open fairs and markets and after it is inspected and sealed. only people living in designated towns may make cloth to sell, to prevent the ruin of these towns by people taking up both agriculture and cloth-making outside these towns. no one making cloth for sale may have more than one woolen loom or else forfeit s. this to protect the weavers' ability to maintain themselves and their families from rich clothiers who keep many looms and employ journeymen and unskillful persons at low wages. no one owning a fulling mill may own a weaving loom. no weaver may own a fulling mill. no one shall shoot in or keep in his house any handgun or crossbow unless he has , s. yearly. no one may hunt or kill hare in the snow since their killing in great numbers by men other than the king and noblemen has depleted them. no one shall take an egg or bird of any falcon or hawk out of its nest on the king's land. no one may disguise himself with hidden or painted face to enter a forest or park enclosed with a wall for keeping deer to steal any deer or hare. ducks and geese shall not be taken with any net or device during the summer, when they haven't enough feathers to fly. but a freeholder of s. yearly may hunt and take such with long bow and spaniels. no one may sell or buy any pheasant except the king's officers may buy such for the king. no butcher may kill any calf born in the spring. no grain, beef, mutton, veal, or pork may be sold outside the nation. every person with acres of agricultural land, shall sow one quarter acre with flax or hemp-feed. all persons shall kill crows on their land to prevent them from eating so much grain at sowing and ripening time and destroying hay stacks and the thatched roofs of houses and barns. they shall assemble yearly to survey all the land to decide how best to destroy all the young breed of crows for that year. every village and town with at least ten households shall put up and maintain crow nets for the destruction of crows. no land used for raising crops may be converted to pasture. no woods may be converted to agriculture or pasture. the efforts to enforce these proved these prohibitions were not successful. no one shall cut down or break up dikes holding salt water and fresh water from flooding houses and pastures. no one shall dump tin-mining debris, dung, or rubbish into rivers flowing into ports or take any wood from the walls of the port, so that ships may always enter at low tide. a person may lay out a new highway on his land where the old one has been so damaged by waterways that horses with carriages cannot pass, with the consent of local officials. only poor, aged, and disabled persons may beg. begging without a license is punishable by whipping or setting in the stocks days with only bread and water. alien palm readers shall no longer be allowed into the nation, because they have been committing felonies and robberies. butchers may not sell beef, pork, mutton, or veal from carcasses for more than / penny and / farthing [ / penny] per pound. french wines may not sell at retail for more than d. per gallon. a barrel maker or cooper may sell a beer barrel for d. no longer may aliens bring books into the nation to sell because now there are sufficient printers and bookbinders in the nation. no one may buy fresh fish other than sturgeon, porpoise, or seal from an alien to put to sale in the nation. every person with an enclosed park where there are deer, shall keep two tall and strong mares in such park and shall not allow them to be mounted by any short horse, because the breeding of good, swift, and strong horses has diminished. a man may have only as many trotting horses for the saddle as are appropriate to his degree. no one may maintain for a living a house for unlawful games such as bowling, tennis, dice, or cards. no artificer, craftsman, husbandman, apprentice, laborer, journeyman, mariner, fisherman may play these games except at christmas under his master's supervision. noblemen and others with a yearly income of at least , s. may allow his servants to play these games at his house. hemp or flax may not be watered in any river or stream where animals are watered. no one shall sell merchandise to another and then buy back the same merchandise within three months at a lower price. no one shall sell merchandise to be paid for in a year above the sum of s. per s. worth of merchandise. no one shall sell or mortgage any land upon condition of payment of a sum of money before a certain date above the sum of s. per s. per year. no one shall commit forgery by counterfeiting a letter made in another person's name to steal any money, goods, or jewels. no one shall libel by accusing another of treason in writing and leaving it in an open place without subscribing his own name to it. if any servant converts to his own use more than s. worth of jewels, money, or goods from caskets entrusted to him for safekeeping by a nobleman or other master or mistress, it shall be a felony. if a person breaks into a dwelling house by night to commit burglary or murder, is killed by anyone in that house, or a person is killed in self-defense, the killer shall not forfeit any lands or goods for the killing. killing by poisoning shall be deemed murder and is punishable by death. a person who has committed a murder, robbery, or other felony he has committed shall be imprisoned for his natural life and be burned on the hand, because those who have been exiled have disclosed their knowledge of the commodities and secrets of this nation and gathered together to practice archery for the benefit of the foreign realm. if he escapes such imprisonment, he shall forfeit his life. a person convicted or outlawed shall be penalized by loss of life, but not loss of lands or goods, which shall go to his wife as dower and his heirs. buggery may not be committed on any person or beast. no one shall slander or libel the king by speeches or writing or printing or painting. no one shall steal fish from a pond on another's land by using nets or hooks with bait or by drying up the pond. the mayor of london shall appoint householders to supervise watermen rowing people across the thames river because many people have been robbed and drowned by these rowers. all such boats must be at least feet long and feet wide. no man shall take away or marry any maiden under years of age with an inheritance against the will of her father. any marriage solemnized in church and consummated shall be valid regardless of any prior agreement for marriage. sheriffs shall not lose their office because they have not collected enough money for the exchequer, but shall have allowances sufficient to perform their duties. butchers, brewers, and bakers shall not conspire together to sell their victuals only at certain prices. artificers, workmen and laborers shall not conspire to work only at a certain rate or only at certain hours of the day. no one shall sell any woolen cloth that shrinks when it is wet. no one shall use a rope or device to stretch cloth for sale so to make it appear as more in quantity than it is. no one may sell cloth at retail unless the town where it was dressed, dyed, and pressed has placed its seal on the cloth. cloth may not be pressed with a hot press, but only with a cold press. only artificers using the cutting of leather, may buy and sell tanned leather and only for the purpose of converting it into made wares. a beggar's child above five years may be taken into service by anyone that will. cattle may be bought only in the open fair or market and only by a butcher or for a household, team, or dairy, but not for resale live. butter and cheese shall not be bought to be sold again except at retail in open shop, fair, or market. no man may enter a craft of cloth-making until he has been an apprentice for seven years or has married a clothiers' wife and practicing the trade for years with her and her servants sorting the wool. no country person shall sell wares such as linen drapery, wool drapery, hats, or groceries by retail in any incorporated town, but only in open fairs. for every sheep there shall be kept one milk cow because of the scarcity of cattle. no clothier may keep more than one wool loom in his house, because many weavers do not have enough work to support their families. no weaver may have more than two wool looms. no clothmaker, fuller, shearman, weaver, tailor, or shoemaker shall retain a journeyman to work by the piece for less than a three month period. every craftsman who has three apprentices shall have one journeyman. servants in agriculture and bargemen shall serve by the whole year and not by day wages. there shall be a sales tax of d. per pound of wool cloth goods for the crown. all people shall attend church on sundays to remember god's benefits and goodness to all and to give thanks for these with prayers and to pray to be given daily necessities. anyone fighting in church shall be excluded from the fellowship of the parish community. no one going from house to house to repair metal goods or sell small goods he is carrying may do this trade outside the town where he lives. no one may sell ale or beer without a license, because there have been too many disorders in common alehouses. offenders may be put in the town or county gaol for three days. only persons with yearly incomes of , s. or owning goods worth , s. may store wine in his house and only for the use of his household. no one may sell forged iron, calling it steel, because the edged tools and weapons made from it are useless. parish communities shall repair the highways for four days each year using oxen, cart, plough, shovels, and spades. the children of priests are declared legitimate so they may inherit their ancestor's lands. the priests may be tenants by courtesy after the death of their wives of such land and tenements that their wives happened to be seized of in fee simple or in fee tail, during the spousals. as of , it was felony to practice witchcraft, sorcery, enchantment, or conjuration [invocation of spirits] for the purpose ) of obtaining money, or ) to consume any person in his body, members, or goods, or ) to provoke any person to unlawful love or lucre of money, or ) to declare where stolen goods be, or ) to despite christ, or ) to pull down any cross. the year books of case decisions ceased in . judicial procedure since the nation was now peaceful, expediency was no longer needed, so judicial procedures again became lengthy and formal with records. the privy council took the authority of the star chamber court, which organized itself as a specialty court. a specific group of full-time councilors heard pleas of private suitors. by royal proclamation of , only those admitted by the chancellor and two chief justices may practice as counsel or in legal pleading in any of the king's courts. also, such a person must be serjeant-at-law, reader, utter barrister, or an eight-year fellow of one of the four houses of court, except in the court of common pleas. doctors of the civil law may practice in the church or chancery courts. the chancery court enforced the obligations known as trusts, in the name of equity and good conscience. it adopted every analogy that the common law presented. its procedure was to force the defendant to answer on oath the charges that were brought against him. all pleadings and usually testimony was put into writing. much evidence consisted of written affidavits. there was no jury. the chancery court did not record its decisions apparently because it did not see itself as bound by precedents. when acting as the highest court, the house of lords was presided over by the chancellor, who sat on his prescribed place on the wool sacks. it had the following jurisdiction: trial of peers for high treason and serious felony, appeals on writs of error from courts of the common law, and impeachment. the house of lords served as judge of impeachment cases, whereas the house of commons served as fact finders. witnesses could be sworn in to state pertinent facts necessary for full understanding and adjudication of cases, because they are reliable now that there is no unlicensed livery and maintenance and because jurors no longer necessarily know all the relevant facts. justices shall tax inhabitants of the county for building gaols throughout the nation, for imprisonment of felons, to be kept by the sheriffs and repaired out of the exchequer. piracy at sea or in river or creek or port are adjudicated in counties because of the difficulty of obtaining witnesses from the ship, who might be murdered or who are on other voyages on the sea, for adjudication by the admiral. piracy and murder on ships is punishable by death only after confession or proof by disinterested witnesses. land held by tenants in common may be partitioned by court order, because some of these tenants have cut down all the trees to take the wood and pulled down the houses to convert the material to their own use. persons worth s. a year in goods shall be admitted in trials of felons in corporate towns although they have no freehold of land. each justice of the high courts may employ one chaplain. the bishops, nobility, and justices of the peace were commanded to imprison clergy who taught papal authority. justices of the peace and sheriffs were to watch over the bishops. the justices of assize were to assess the effectiveness of the justices of the peace as well as enforce the treason statute on circuit. the criminal court went outside the common law to prosecute political enemies, e.g. by dispensing with a jury. the leet court and sheriff's turn court have much less jurisdiction. they may dispose of presentments of trespasses and nuisances, but not felony or question of freehold. such presentments are made by a set of at least twelve men, and the presented person is amerced there and then. the humanist intellectual revival caused the church courts to try to eliminate contradictions with state law, for instance in debt, restitution, illegitimacy, and the age of legal majority. an example of a case in the king's bench is this: "a french priest was indicted in kent for bringing false ducats into the realm in order to make payment, knowing them to be false. he was thereupon arraigned and found guilty, and the judgment was respited and the record sent into the king's bench. and there he was discharged; for the statute of edw. is for bringing (in) false money counterfeiting coin of the realm, and the ducats are not coin of the realm" in the case of r. v. thorpe "a man robbed a church in essex and was indicted for it in essex; and he went to ipswich in suffolk and a goldsmith received him; and they were both indicted in suffolk, one as principal and the other as accessory, because the principal had brought part of the stolen goods to ipswich. and the justices in essex sent a writ for the principal, whereby he was there arraigned and found guilty and hanged. then the other indictment in suffolk was removed into the king's bench, and upon process the sheriff returned the principal dead; so the accessory came by process and pleaded the death of the principal, and the attorney for the king confessed it, and therefore he was discharged." in the case of r. v. more, "and then on thursday, the first day of july, sir thomas more, knight (who had earlier been chancellor of england and was afterwards discharged from the same office) was arraigned before the said sir thomas audley, chancellor and the other commissioners, for treason, in that he was an aider, counsellor and abettor to the said fisher, and also that he falsely, maliciously, and traitorously desiring, willing, and scheming, contrived, practised and attempted to deprive the king of his dignity, name and title of supreme head on earth of the church of england. (he was) found guilty, and the said chancellor gave judgment. and the said more stood firmly upon the statute of hen , for he said that the parliament could not make the king supreme head, etc. he was beheaded at tower hill," chapter the times: - queen elizabeth i was intelligent, educated, and wise about human nature. when young, she was a brilliant student and studied the bible, philosophy, literature, oratory, and greek and roman history. she wrote in english, latin, french, and italian. she read greek, including the greek testament, greek orators, and greek dramatists, at age seven, when the first professorship of greek was founded at cambridge university. learning from books was one of her highest values throughout her life. she read so much and was so influenced by cicero that she acquired his style of writing. her chief secretary william cecil was so guided by cicero's "offices" that he carried a copy in his pocket. cicero opined that government officials had a duty to make the safety and interest of citizens its greatest aim and to influence all their thoughts and endeavors without ever considering personal advantage. government was not to serve the interest of any one group to the prejudice or neglect of the rest, for then discord and sedition would occur. furthermore, a ruler should try to become loved and not feared, because men hated those whom they feared, and wished them dead. therefore obedience proceeding from fear could not last, whereas that which was the effect of love would last forever. an oppressor ruling by terror would be resented by the citizens, who in secret would choose a worthier person. then liberty, having been chained up, would be unleashed more fiercely than otherwise. to obtain the peoples' love, a ruler should be kind and bountiful. to obtain the peoples' trust, a ruler should be just, wise, and faithful. to demonstrate this, a ruler should be eloquent in showing the people an understanding better than theirs, the wisdom to anticipate events, and the ability to deal with adverse events. and this demonstration should be done with modesty. one cannot get the peoples' trust by vain shows, hypocritical pretenses, composed countenances, and studied forms of words. the first goal of a ruler is to take care that each individual is secured in the quiet enjoyment of his own property. the second goal is to impose taxes that are not burdensome. the third goal is to furnish the people with necessaries. the law should be enforced keeping in mind that its fundamental purpose is to keep up agreement and union among citizens. elizabeth cared deeply for the welfare of all citizens of whatever class. she was sensitive to public opinion and was loved by her people. she respected truth and was sincere, avoiding guile or fraud. she claimed that she had never dishonored her tongue with a falsehood to anyone. she expected that any covert manipulations by monarchs would be found out and therefore would damage their credibility. "it becometh therefor all of our rank to deal sincerely; lest if we use it not, when we do it we be hardly believed." she was frugal and diplomatically avoided unnecessary wars, saying that her purse was the pockets of her people. her credit reputation was so good that she could always get loans at small rates of interest from other countries. england was a small protestant nation threatened by the larger catholic nations of france and spain. when elizabeth flirted and talked of marriage with foreign princes, they laid aside any thoughts of conquering england by war, hoping to obtain it my marriage. not only did she not seek to conquer other lands, but she turned down an invitation to rule the netherlands. elizabeth prayed for divine guidance as in this prayer: "almighty god and king of all kings, lord of heaven and earth, by whose leave earthly princes rule over mortals, when the most prudent of kings who administered a kingdom, solomon, frankly confessed that he was not capable enough unless thou broughtst him power and help, how much less am i, thy handmaid, in my unwarlike sex and feminine nature, adequate to administer these thy kingdoms of england and of ireland, and to govern an innumerable and warlike people, or able to bear the immense magnitude of such a burden, if thou, most merciful father didst not provide for me (undeserving of a kingdom) freely and against the opinion of many men. instruct me from heaven, and give help so that i reign by thy grace, without which even the wisest among the sons of men can think nothing rightly. send therefore, o inexhaustible fount of all wisdom, from thy holy heaven and the most high throne of thy majesty, thy wisdom to be ever with me, that it may keep watch with me in governing the commonwealth, and that it may take pains, that it may teach me, thy handmaid, and may train me that i may be able to distinguish between good and evil, equity and iniquity, so as rightly to judge thy people, justly to impose deserved punishments on those who do harm, mercifully to protect the innocent, freely to encourage those who are industrious and useful to the commonwealth. and besides, that i may know what is acceptable to thee alone, vouchsafe that i wish, dare, and can perform it without paying respect to any earthly persons or things. so that when thou thyself, the just judge, who askest many and great things from those to whom many and great things are entrusted, when thou requirest an exact accounting, charge me not with badly administering my commonwealth and kingdom. but if by human thoughtlessness or infirmity thy handmaid strays from the right in some thing, absolve me of it by thy mercy, most high king and most mild father, for the sake of thy son jesus christ; and at the same time grant that after this worldly kingdom has been exacted of me, i may enjoy with thee an eternity in thy heavenly and unending kingdom, through the same jesus christ, thy son and the assessor of thy kingdom, our lord and mediator. to whom with thee and with the holy spirit, one everlasting king, immortal, invisible, only-wise god, be all honor and glory forever and ever, amen." elizabeth promoted commercial speculations, which diffused a vast increase of wealth among her people. the elizabethan era was one of general prosperity. her good spirits and gayness created a happy mood in the nation. she loved dancing and madrigal music was popular. she came to dress elaborately and fancifully. her dresses were fitted not only at the waist, but along the torso by a long and pointed bodice stiffened with wood, steel, or whalebone. her skirt was held out with a petticoat with progressively larger hoops. there were two layers of skirt with the top one parted to show the bottom one. the materials used were silks, satins, velvets, and brocades. on her dress were quiltings, slashings, and embroidery. it was covered with gold ornaments, pearls, gems, and unusual stones from america. she wore decorated gloves. ladies copied her and discarded their simple over-tunics for elaborate dresses. the under-tunic became a petticoat and the over-tunic a dress. often they also wore a fan with a mirror, a ball of scent, a miniature portrait of someone dear to them, and sometimes a watch. single ladies did not wear hats, but had long, flowing hair and low cut dresses showing their bosoms. married ladies curled their hair and wore it in high masses on their heads with jewels interwoven into it. both gentlemen and ladies wore hats both indoors and outside and large, pleated collars around their necks (with the newly discovered starch), perfume, rings with stones or pearls, and high-heeled shoes. gentlemen's' tight sleeves, stiffened and fitted doublet with short skirt, and short cloak were ornamented and their silk or velvet hats flamboyant, with feathers. at their leather belts they hung pouches and perhaps a watch. they wore both rapiers [swords with cutting edges] and daggers daily as there were many quarrels. there were various artistic beard cuts and various lengths of hair, which was often curled and worn in ringlets. barbers sought to give a man a haircut that would favor his appearance, for instance a long slender beard for a round face to make it seem narrower and a broad and large cut for a lean and straight face. men now wore stuffed breeches and stockings instead of long hosen. some wore a jeweled and embroidered codpiece between their legs to emphasize their virility. both gentlemen and ladies wore silk stockings and socks over them and then boots. coats dipped in boiled linseed oil with resin served as raincoats. both men and women wore velvet or wool full length nightgowns with long sleeves and fur lining and trimming to bed, which was the custom for the next years. fashions changed every year due to the introduction of cheaper, lighter, and less durable cloths by immigrant craftsmen. when elizabeth became old, she had a wig made to match her youthful long red hair. other ladies then began wearing wigs. every few years, elizabeth issued a proclamation reminding people of the apparel laws and reiterating certain provisions which had been disregarded. for instance, only the royal family and dukes and marquises in mantles [cloaks] of the garter could wear the color purple. one had to be at least an earl to wear gold or silver or sable. only dukes, marquises, earls and their children, barons, and knights of the order could wear imported wool, velvet, crimson, scarlet, or blue, or certain furs., except that barons' sons, knights, or men who could dispend at least pounds yearly could wear velvet in gowns or coats, embroidery, and furs of leopards. spurs, swords, rapiers, daggers, and woodknives were restricted to knights and barons' sons or higher. a man who could dispend at least pounds per year could wear taffeta, satin, damask, or cloth made of camels' hair and silk, in his outer garments. one had to be the son and heir or the daughter of a knight or wife of said son or a man who could dispend pounds yearly or had pounds worth in goods to wear silk in one's hat, bonnet, nightcap, girdle, scabbard, or hose. yeomen, husbandmen, serving men, and craftsmen were very restricted in what they could wear. poor men wore skirted fustian tunics, loose breeches, and coarse stockings or canvas leggings. children wore the same type of apparel as their elders. they were given milk at meals for good growth. it was recognized that sickness could be influenced by diet and herbs. sickness was still viewed as an imperfect balance of the four humors. women spent much of their time doing needlework and embroidery. since so many of the women who spent their days spinning were single, unmarried women became known as "spinsters". there were many lifestyle possibilities in the nation: gentleman, that is one who owned land or was in a profession such as a attorney, physician, priest or who was a university graduate, government official, or a military officer; employment in agriculture, arts, sciences; employment in households and offices of noblemen and gentlemen; self-sufficient farmers with their own farm; fisherman or mariner on the sea or apprentice of such; employment by carriers of grain into cities, by market towns, or for digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, coal; glassmaker. typical wages in the country were: field-workers - d. a day, ploughmen s. a week with board, shepherd d. a week and board, his boy / d., hedgers d. a day, threshers - d. depending on the grain, thatching for five days d., master mason or carpenter or joiner d. a day and food or d. without food, a smith d. a day with food, a bricklayer / d. a day with food, a shoemaker d. a day with food. these people lived primarily on food from their own ground. there was typical work for each month of the year in the country: january - ditching and hedging after the frost broke, february - catch moles in the meadows, march - protect the sheep from prowling dogs, april - put up hop poles, sell bark to the tanner before the timber is felled, fell elm and ash for carts and ploughs, fell hazel for forks, fell sallow for rakes, fell horn for flails, may - weed and hire children to pick up stones from the fallow land, june - wash and shear the sheep, july - hay harvest, august - wheat harvest, september and october - gather the fruit, sell the wool from the summer shearing, stack logs for winter, buy salt fish for lent in the town and lay it up to dry, november - have the chimneys swept before winter, thresh grain in the barn, december - grind tools, repair yokes, forks, and farm implements, cover strawberry and flower beds with straw to protect them from the cold, split kindling wood with beetle and wedge, tan their leather, make leather jugs, make baskets for catching fish, and carve wood spoons, plates, and bowls. there was a wave of building and renovation activity in town and country. housing is now, for the first time, purely for dwelling and not for defense. houses were designed symmetrically with decorative features instead of a haphazard addition of rooms. windows were large and put on the outer walls instead of just inside the courtyard. a scarcity of timber caused proportionally more stone to be used for dwelling houses and proportionately more brick to be used for royal palaces and mansions. the rest of the house was plaster painted white interspersed with vertical, horizontal, and sloping timber, usually oak, painted black. there were locks and bolts for protection from intruders. the hall was still the main room, and usually extended up to the roof. richly carved screens separated the hall from the kitchen. the floors were stone or wood, and sometimes tile. they were often covered with rushes or plaited rush mats, on which incomers could remove the mud from their boots. some private rooms had carpets on the floor. walls were smoothly plastered or had carved wood paneling to control drafts. painted cloths replaced tapestries on walls. family portraits decorated some walls, usually in the dining room. iron stands with candles were hung from the ceiling and used on tables. plastered ceilings and a lavish use of glass made rooms lighter and cozy. broad and gracious open stairways with carved wood banisters replaced the narrow winding stone steps of a circular stairwell. most houses had several ornamented brick chimneys and clear, but uneven, glass in the windows. there were fireplaces in living rooms, dining rooms, kitchen, and bedrooms, as well as in the hall and great chamber. parlors were used for eating and sitting only, but not for sleeping. closets were rooms off bedrooms in which one could read and write on a writing table, and store one's books, papers, maps, calendar, medals, collections, rarities, and oddities. sometimes there was a study room or breakfast room as well. a gentleman used his study not only to read and to write, but to hold collections of early chronicles, charters, deeds, copied manuscripts, and coins that reflected the budding interest in antiquarianism; and to study his family genealogy, for which he had hired someone to make an elaborate diagram. he was inclined to have a few classical, religious, medical, legal, and political books there. rooms were more spacious than before and contained oak furniture such as enclosed cupboards; cabinets; buffets from which food could be served; tables, chairs and benches with backs and cushions, and sometimes with arms; lidded chests for storing clothes and linens, and occasionally chests of drawers or wardrobes, either hanging or with shelves, for clothes. chests of drawers developed from a drawer at the bottom of a wardrobe. carpeting covered tables, chests, and beds. great houses had a wardrobe chamber with a fireplace in front of which the yeoman of the wardrobe and his assistants could repair clothes and hangings. separate bedchambers replaced bed-sitting rooms. bedrooms all led out of each other. the lady's chamber was next to her lord's chamber, and her ladies' chambers were close to her chamber. but curtains on the four-poster beds with tops provided privacy and warmth. beds had elaborately carved bedsteads, sheets, and a feather cover as well as a feather mattress. often family members, servants, and friends shared the same bed for warmth or convenience. each bedroom typically had a cabinet with a mirror, e.g. of burnished metal or crystal, and comb on top. one brushed his teeth with tooth soap and a linen cloth, as physicians advised. each bedroom had a pitcher and water bowl, usually silver or pewter, for washing in the morning, and a chamber pot or a stool with a hole over a bucket for nighttime use, and also fragrant flowers to override the unpleasant odors. the chamber pots and buckets were emptied into cesspits. a large set of lodgings had attached to it latrines consisting of a small cell in which a seat with a hole was placed over a shaft which connected to a pit or a drain. the servants slept in turrets or attics. elizabeth had a room just for her bath. breakfast was substantial, with meat, and usually eaten in one's bedroom. the great hall, often hung around with bows, pikes, swords, and guns, was not abandoned, but the family took meals there only on rare occasions. instead they withdrew to a parlor, for domestic use, or the great chamber, for entertaining. parlors were situated on the ground floor: the family lived and relaxed there, and had informal meals in a dining parlor. more than medieval castles and manor houses, mansions were designed with privacy in mind. the formal or "state" rooms were on the first floor above the ground floor, usually comprising a great chamber, a withdrawing chamber, one or more bedchambers, and a long gallery. each room had carved chairs and cabinets. taking a meal in the great chamber involved the same ceremonial ritual as in the manorial great chamber dating from the s. the table was covered with a linen cloth. the lady of the house sat in a chair at the upper end of the table and was served first. people of high rank sat at her end of the table "above" the fancy silver salt cellar and pepper. people of low rank sat "below" it near the other end of the table. grace was said before the meal. noon dinner and supper were served by cupbearer, sewer, carver, and assistants. fine clear italian glass drinking vessels replaced even gold and silver goblets. food was eaten from silver dishes with silver spoons. some gentry used two-pronged forks. meats were plentiful and varied: e.g. beef, mutton, veal, lamb, kid, pork, hare, capon, red deer, fish and wild fowl as well as the traditional venison and brawn [boar]. kitchen gardens and orchards supplied apricots, almonds, gooseberries, raspberries, melons, currants, oranges, and lemons as well as the traditional apples, pears, plums, mulberries, quinces, pomegranates, figs, cherries, walnuts, chestnuts, hazel nuts, filberts, almonds, strawberries, blackberries, dewberries, blueberries, and peaches. also grown were sweet potatoes, artichokes, cabbages, turnips, broad beans, peas, pumpkins, cucumbers, radishes, carrots, celery, parsnips, onions, garlic, leeks, endive, capers, spinach, sorrel, lettuce, parsley, mustard, cress, sage, tarragon, fennel, thyme, mint, savory, rhubarb, and medicinal herbs. the well-to-do started to grow apricots, peaches, and oranges under glass. sugar was used to make sweet dishes. toothpicks made of brass or silver or merely a stiff quill were used. after the meal, some men and women were invited for conversation in a withdrawing or drawing chamber. some might take a walk in the gardens. after the upper table was served, the food was sent to the great hall to the steward and high household officers at the high table and other servants: serving men and women, bakers, brewers, cooks, pot cleaners, laundresses, shepherds, hogherds, dairy maids, falconers, huntsmen, and stable men. what was left was given to the poor at the gates of the house. great chambers were used primarily for meals, but also for music; dancing; plays; masques; playing cards, dice, backgammon, or chess; and daily prayers if there was no chapel. without the necessity of fortifications, the estate of a noble or gentleman could spread out to include not only a garden for the kitchen, but extensive orchards and beautiful formal gardens of flowers and scrubs, sometimes with fountains and maybe a maze of hedges. trees were planted, pruned, and grafted onto each other. householders had the responsibility to teach their family and servants religion and morals, and often read from the bible to them. many thought that the writers of the bible wrote down the exact words of god, so the passages of the bible should be taken literally. a noble lord made written rules with penalties for his country household, which numbered about a hundred, including family, retainers, and servants. he enforced them by fines, flogging, and threats of dismissal. the lady of the house saw that the household held together as an economic and social unit. the noble's family, retainers, guests, and the head servants, such as chaplain and children's tutor, and possibly a musician, dined together at one table. the family included step children and married sons and daughters with their spouses. young couples often lived with the parents of one of them. chandeliers of candles lit rooms. there were sandglass clocks. popular home activities included reading, conversation, gardening, and music-making. smoking tobacco from a clay pipe and taking snuff became popular with men. for amusement, one of the lord's household would take his place in managing the estate for twelve days. he was called the "lord of misrule", and mimicked his lord, and issued comic orders. clothes were washed in rivers and wells. at spring cleanings, windows were opened, every washable surface washed, and feather beds and pillows exposed to the sun. most dwellings were of brick and stone. only a few were of wood or mud and straw. the average house was now four rooms instead of three. yeomen might have six rooms. a weaver's house had a hall, two bedrooms, and a kitchen besides the shop. farmers might have two instead of one room. a joiner had a one-room house with a feather bed and bolster. even craftsmen, artificers and simple farmers slept on feather beds on bed frames with pillows, sheets, blankets, and coverlets. loom tapestry and painted cloth was hung to keep out the cold in their single story homes. they also had pewter spoons and plates, instead of just wood or earthenware ones. even the poorer class had glass drinking vessels, though of a coarse grade. the poor still used wooden plates and spoons. laborers had canvas sheets. richer farmers would build a chamber above the hall, replacing the open hearth with a fireplace and chimney at a wall. poorer people favored ground floor extensions, adding a kitchen or second bedchamber to their cottages. kitchens were often separate buildings to reduce the risk of fire. roasting was done on a spit and baking in irons boxes placed in the fire or in a brick oven at the side of the fireplace. sometimes dogs were used to turn a spit by continual running in a treadmill. some people lived in hovels due to the custom in many places that a person could live in a home he built on village waste land if he could build it in one night. yeomen farmers still worked from dawn to dusk. mixed farming began. in this, some of the arable land produced food for man and the rest produced food for sheep, cattle, pigs, and poultry. this was made possible by the introduction of clover, artificial grasses, and turnip and other root crops for the animals. since the sheep ate these crops in the field, they provided manure to maintain the fertility of the soil. this meant that many animals could be maintained throughout the winter instead of being slaughtered and salted. so salted meat and salted fish were no longer the staple food of the poorer people during the winter. farm laborers ate soup, porridge, milk, cheese, bacon, and beer or mead (depending on the district), and dark barley or rye bread, which often served as his plate. gentlemen ate wheat bread. there was a scarcity of fruits and vegetables that adversely affected the health of the affluent as well as of the poor due to the overall decline in farming. during winter, there were many red noses and coughing. farmers' wives used looms as well as spinning wheels with foot treadles. the value of grain and meat rose compared to wool. grain became six times its value in the previous reign. wool fell from s. d. per tod to s. so sheep farming, which had taken about % of the arable land, was supplanted somewhat by crop raising, and the rural population could be employed for agriculture. in some places, the threefold system of rotation was replaced by alternating land used for crops with that used for pasture. the necessity of manuring and the rotation of crops and grasses such as clover for enrichment of the soil were recognized. wheat, rye, barley, peas, and beans were raised. there was much appropriation of common land by individual owners by sale or force. many farms were enclosed by fences or hedges so that each holder could be independent of his neighbors. red and black currants, rhubarb, apricots, and oranges were now grown. these independent farmers could sell wool to clothiers, and butter, cheese, and meat to the towns. they also often did smithwork and ironwork, making nails, horseshoes, keys, locks, and agricultural implements to sell. a laborer could earn d. a day in winter and d. a day in summer. unfree villeinage ceased on the royal estates. but most land was still farmed in common and worked in strips without enclosure. elizabeth made several proclamations ordering the enclosure of certain enclosed land to be destroyed and the land returned to tillage. windmills now had vanes replacing manual labor to change the position of their sails when the wind direction changed. prosperous traders and farmers who owned their own land assumed local offices as established members of the community. the population of the nation was about five million. population expansion had allowed landlords to insist on shorter leases and higher rents, instead of having to choose between accepting a long lease and good rent or allowing their estates to pass out of cultivation. over % of the population were on the margin of subsistence. % of the population lived in the countryside and % in the london and % in the other towns. life expectancy was about years of age. over % were under the age of , while only about % were over . fluctuations in rates of population growth were traceable back to bad harvests and to epidemics and the two were still closely related to each other: "first dirth and then plague". most of london was confined within the city wall. there were orchards and gardens both inside and outside the walls, and fields outside. flower gardens and nurseries came into existence. no part of the city was more than a ten minute walk to the fields. some wealthy merchants had four story mansions or country houses outside the city walls. the suburbs of the city of london grew in a long line along the river; on the west side were noblemen's houses on both sides of the strand. east of the tower was a seafaring and industrial population. goldsmiths' row was replete with four story houses. a few wealthy merchants became money- lenders for interest, despite the law against usury. the mayor of london was typically a rich merchant prince. each trade occupied its own section of the town and every shop had its own signboard, for instance, hat and cap sellers, cloth sellers, grocers, butchers, cooks, taverns, and booksellers. many of the london wards were associated with a craft, such as candlewick ward, bread st. ward, vintry ward, and cordwainer ward. some wards were associated with their location in the city, such as bridge ward, tower ward, aldgate ward, queenhithe ward, and billingsgate ward. people lived at the back or on the second floor of their shops. in the back yard, they grew vegetables such as melons, carrots, turnips, cabbages, pumpkins, parsnips, and cucumbers; herbs; and kept a pig. the pigs could still wander through the streets. hyde park was the queen's hunting ground. london had a small zoo of ten animals, including a lion, tiger, lynx, and wolf. london was england's greatest manufacturing city. by the greatest trading companies in london ceased to be associated only with their traditional goods and were dominated by merchants whose main interest was in the cloth trade. ambitious merchants joined a livery company to become freemen of the city and for the status and social benefits of membership. the companies still made charitable endowments, had funeral feasts, cared for the welfare of guild members, and made lavish displays of pageantry. they were intimately involved with the government of the city. they supplied members for the court of aldermen, which relied on the companies to maintain the city's emergency grain stores, to assess and collect taxes, to provide loans to the crown, to control prices and markets, to provide armed men when trouble was expected, and to raise armies for the crown at times of rebellion, war, or visits from foreign monarchs. from about to , there were % involved in cloth or clothing industries such as weavers, tailors, hosiers, haberdashers, and cappers. % were leatherworkers such as skinners; tanners; those in the heavy leather crafts such as shoemakers, saddlers, and cobblers; and those in the light leather crafts such as glovers and pursers. another % worked in metals, such as the armorers, smiths, cutlers, locksmiths, and coppersmiths. % worked in the building trades. the victualing trades, such as bakers, brewers, butchers, costermongers [sold fruit and vegetables from a cart or street stand], millers, fishmongers, oystermen, and tapsters [bartender], grew from % before to % by . of london's workforce, % were involved in production; % were merchants before ; % were merchants by ; % were transport workers such as watermen, sailors, porters, coachmen, and shipwrights; and - % were professionals and officials (this number declining). life in london was lived in the open air in the streets. the merchant transacted business agreements and the attorney saw his clients in the street or at certain pillars at st. paul's church, where there was a market for all kinds of goods and services, including gentlemen's valets, groceries, spirits, books, and loans, which continued even during the daily service. some gentlemen had offices distant from their dwelling houses such as attorneys, who had a good income from trade disputes and claims to land, which often changed hands. plays and recreation also occurred in the streets, such as performances by dancers, musicians, jugglers, clowns, tumblers, magicians, and men who swallowed fire. the churches were continuously open and used by trades and peddlers, including tailors and letter-writers. water carriers carried water in wood vessels on their shoulders from the thames river or its conduits to the inhabitants three gallons at a time. a gentleman concocted an engine to convey thames water by lead pipes up into men's houses in a certain section of the city. in , a man took out a lease on one of the arches of london bridge. there he built a waterwheel from which he pumped water to residents who lived beside the bridge. soldiers, adventurers, physicians, apprentices, prostitutes, and cooks were all distinguishable by their appearances. an ordinance required apprentices to wear long blue gowns and white breeches with stockings, with no ornamentation of silk, lace, gold or silver and no jewelry. they could wear a meat knife, but not a sword or dagger. apprentices lived with their masters and worked from or a.m. to p.m. some people knitted wool caps as they walked to later sell. there were sections of town for booksellers, butchers, brewers, hosiers, shoemakers, curriers, cooks, poulters, bow makers, textwriters, pattenmakers, and horse and oxen sellers. large merchant companies had great halls for trade, such as the mercers, grocers, drapers, fishmongers, and goldsmiths. the other great guilds were the skinners, merchant tailers, salters, haberdashers, ironmongers, vintners, and clothworkers. smaller guilds were those of the bakers, weavers, fruiterers, dyers, thames watermen and lightermen, carpenters, joiners, turners, and parish clerks. the guilds insured quality by inspecting goods for a fee. about , mercer and merchant adventurer thomas gresham established the royal exchange as a place for merchants and brokers to meet for business purposes. it became the center of london's business life. its great bell rang at midday and at p.m. its courtyard was lined with shops that rented at s. yearly and became a popular social and recreational area. gresham formulated his law that when two kinds of money of equal denomination but unequal intrinsic value are in circulation at the same time, the one of greater value will tend to be hoarded or exported, i.e. bad money will drive good money out of circulation. the work-saving knitting frame was invented in by minister william lee; it knit crosswise loops using one continuous yarn and was operated by hand. the stocking knitters, who knitted by hand, put up a bitter struggle against its use and chased lee out of the country. but it did come into use. some framework stocking knitters paid frame rent for the use of their knitting frames. frame knitting became a scattered industry. by basement services were frequently found in town houses built on restricted sites in london. lastly, provision of water supplies and improved sanitary arrangements reflected concern with private and public health. there was virtually no drainage. in the case of town houses, some owners would go to considerable effort to solve drainage problems, often paying cash to the civic authorities, but sometimes performing some service for the town at court or at westminster, in return for unlimited water or some drainage. most affluent households, including the queen's, moved from house to house, so their cesspits could be cleaned out and the vacated buildings aired after use. a few cesspits were made air tight. otherwise, there was extensive burning of incense. refuse was emptied out of front doors and shoveled into heaps on street corners. it was then dumped into the thames or along the highways leading out of town. people put on perfume to avoid the stench. by , the first toilet and water closet, where water flushed away the waste, was built. this provided a clean toilet area all year round. but these toilets were not much used because of sewer smells coming from them. the sky above london was darkened somewhat by the burning of coal in houses. taverns served meals as well as ale. they were popular meeting places for both men and women of all backgrounds to met their friends. men went to taverns for camaraderie and to conduct business. women usually went to taverns with each other. two taverns in particular were popular with the intelligentsia. music was usually played in the background and games were sometimes played. beer made with hops and malt was introduced and soon there were beer drinking contests. drunkenness became a problem. at night, the gates of the city were closed and citizens were expected to hang out lanterns. the constable and his watchmen carried lanterns and patrolled the streets asking anyone they saw why they were out so late at night. crime was rampant in the streets and criminals were executed near to the crime scene. there were a few horse-drawn coaches with leather flaps or curtains in the unglazed windows to keep out the weather. the main thoroughfare in london was still the thames river. nobles, peers, and dignitaries living on the thames had their own boats and landings. also at the banks, merchants of all nations had landing places where ships unloaded, warehouses, and cellars for goods and merchandise. swans swam in the clear bright water. watermen rowed people across the thames for a fee. in southwark were theaters, outlaws, cutpurses, prostitutes, and prisons. in southwark became the th and last ward of london. in the summer, people ate supper outside in public. as of old times, brokers approved by the mayor and aldermen made contracts with merchants concerning their wares. some contracts included holding wares as security. some craftsmen and manual workers extended this idea to used garments and household articles, which they took as pawns, or security for money loaned. this began pawn brokerage, which was lucrative. the problem was that many of the items pawned had been stolen. elizabeth had good judgment in selecting her ministers and advisors for her privy council, which was organized like henry viii's privy council. the queen's privy council of about twelve ministers handled foreign affairs, drafted official communiques, issued proclamations, supervised the county offices: the justices of the peace, chief constables, sheriffs, lord lieutenants, and the county militias. it fixed wages and prices in london, advised justices of the peace on wages elsewhere, and controlled exports of grain to keep prices down and supplies ample. it banned the eating of meat two days a week so that the fishing industry and port towns would prosper. when grain was scarce in , elizabeth made a proclamation against those ingrossers, forestallers, and ingraters of grain who increased its price by spreading false rumors that it was scarce because much of it was being exported, which was forbidden. there were labor strikes in some towns for higher wages after periods of inflation. in , london authorities rounded up the sturdy vagabonds and set them to work cleaning out the city ditches for d. per day. during the tudor period, the office of secretary of state was established. elizabeth did not allow any gentleman to live in london purely for pleasure, but sent those not employed by the court back to their country manors to take care of and feed the poor of their parishes. her proclamation stated that "sundry persons of ability that had intended to save their charges by living privately in london or towns corporate, thereby leaving their hospitality and the relief of their poor neighbors, are charged not to break up their households; and all others that have of late time broken up their households to return to their houses again without delay." she never issued a license for more than retainers. she was partially successful in stopping justices of the peace and sheriffs from wearing the liveries of great men. she continued the policy of henry vii to replace the rule of force by the rule of law. service of the crown and influence at court became a better route to power and fortune than individual factions based on local power structures. at the lowest level, bribery became more effective than bullying. the qualities of the courtier, such as wit, and the lawyer became more fashionable than the qualities of the soldier. most of the men in elizabeth's court had attended a university, such as francis bacon, son of the lord keeper, who became a writer, attorney, member of the commons, and experimental philosopher; and walter ralegh, the writer and sea fighter, who had a humble origin. many wives and daughters of privy councilors attended the queen in her privy chamber. most of the knights or gentlemen of the royal household were also members of parliament or justices of the peace for certain districts in the counties. instead of the office of chancellor, which was the highest legal office, elizabeth appointed a man of common birth to be lord keeper of the great seal; she never made a lord keeper a peer. elizabeth encouraged her lords to frankly make known their views to her, in public or in private, before she decided on a course of action. she had affectionate nicknames for her closest courtiers, and liked to make puns. the rooms of the queen were arranged as they had been under henry viii: the great hall was the main dining room where the servants ate and which elizabeth attended on high days and holidays; the great chamber was the main reception room, where her gentlemen and yeomen of the guard waited; the presence chamber was where she received important visitors; beyond lay her privy chamber and her bedchamber. she ate her meals in the privy chamber attended only by her ladies. she believed that a light supper was conducive to good health. the lord chamberlain attended the queen's person and managed her privy chamber and her well-born grooms and yeomen and ladies-in-waiting. the lord steward managed the domestic servants below the stairs, from the lord treasurer to the cooks and grooms of the stable. the court did not travel as much as in the past, but became associated with london. elizabeth took her entire court on summer visits to the country houses of leading nobility and gentry. courtiers adopted symbolic "devices" as statements of their reaction to life or events, e.g. a cupid firing arrows at a unicorn signified chastity under attack by sexual desire. they carried them enameled on jewels, had them painted in the background of their portraits, and sometimes had them expressed on furniture, plate, buildings, or food. the authority of the queen was the authority of the state. elizabeth's experience led her to believe that it was most important for a monarch to have justice, temperance, magnanimity, and judgment. she claimed that she never set one person before another, but upon just cause, and had never preferred anyone to office for the preferrer's sake, but only when she believed the person worthy and fit for the office. she never blamed those who did their best and never discharged anyone form office except for cause. further, she had never been partial or prejudiced nor had listened to any person contrary to law to pervert her verdicts. she never credited a tale that was first told to her and never corrupted her judgment with a censure before she had heard the cause. she did not think that the glory of the title of monarch made all she did lawful. to her, clemency was as eminent in supreme authority as justice and severity. secular education and especially the profession of law was now the route for an able but poor person to rise to power, rather than as formerly through military service or through the church. the first stage of education was primary education, which was devoted to learning to read and write in english. this was carried out at endowed schools or at home by one's mother or a tutor. the children of the gentry were usually taught in their homes by private teachers of small classes. many of the poor became literate enough to read the bible and to write letters. however, most agricultural workers and laborers remained illiterate. they signed with an "x", which represented the christian cross and signified its solemnity. children of the poor were expected to work from the age of or . the next stage of education was grammar [secondary] school or a private tutor. a student was taught rhetoric (e.g. poetry, history, precepts of rhetoric, and classical oratory), some logic, and latin and greek grammar. english grammar was learned through latin grammar and english style through translation from latin. as a result, they wrote english in a latin style. literary criticism was learned through rhetoric. there were disputations on philosophical questions such as how many angels could sit on a pin's point, and at some schools, orations. the students sat in groups around the hall for their lessons. the boys and some girls were also taught hawking, hunting and archery. there were no playgrounds. the grammar student and the undergraduate were tested for proficiency by written themes and oral disputations, both in latin. the middle classes from the squire to the petty tradesman were brought into contact with the works of the best greek and roman writers. the best schools and many others had the students read cicero - the "de officiis", the epistles and orations; and some of ovid, terence, sallust, virgil, some medieval latin works, the "distichs" of cato, and sometimes erasmus and sir thomas more. the students also had to repeat prayers, recite the lord's prayer and the ten commandments, and to memorize catechisms. because the students came from the various social classes such as gentlemen, parsons, yeomen, mercers, and masons, they learned to be on friendly and natural terms with other classes. a typical school-day lasted from : am -to : pm. there were so many grammar schools founded and financed by merchants and guilds such as the mercers and fishmongers that every incorporated town had at least one. grammar schools were headed by schoolmasters, who were licensed by the bishop and paid by the town. flogging with a birch rod was used for discipline. however, the grammar schools did not become the breeding grounds for humanist ideas because the sovereigns were faced with religious atomism and political unrest, so used the grammar schools to maintain public order and achieve political and religious conformity. many grammar schools had preparatory classes called "petties" for boys and girls who could not read and write to learn to do so. the girls did not usually stay beyond the age of nine. this was done by a schoolmaster's assistant, a parish clerk, or some older boys. some founders of grammar schools linked their schools with particular colleges in the universities following the example of winchester being associated with new college, oxford; and eton with king's college, cambridge. the new charter of westminster in associated the school with christ church, oxford and trinity college, cambridge. the government of oxford university, which had been catholic, was taken from the resident teachers and put into the hands of the vice-chancellor, doctors, heads of colleges, and proctors. cambridge already had a strong reformed element from erasmus' influence. oxford university and cambridge university were incorporated to have a perpetual existence for the virtuous education of youth and maintenance of good literature. the chancellors, masters, and scholars had a common seal. oxford was authorized to and did acquire its own printing press. undergraduate students entered about age and resided in rooms in colleges rather than in scattered lodgings. the graduate fellows of the college who were m.a.s of under three years standing had the responsibility, instead of the university, for teaching the undergraduates. this led many to regard their fellowship as a position for life rather than until they completed their post-graduate studies. but they were still required to resign on marrying or taking up an ecclesiastical benefice. the undergraduates were fee-paying members of the college or poor scholars. some of the fee-paying members or gentlemen-commoners or fellow-commoners were the sons of the nobility and gentry and even shared the fellows' table. the undergraduate students were required to have a particular tutors, who were responsible for their moral behavior as well as their academic studies. it was through the tutors that modern studies fit for the education of a renaissance gentleman became the norm. those students not seeking a degree could devise their own courses of study with their tutors' permission. less than about % stayed long enough to get a degree. many students who were working on the seven year program for a master's degree went out of residence at college after the four year's "bachelor" course. students had text books to read rather than simply listening to a teacher read books to them. in addition to the lecturing of the m.a.s and the endowed university lectureships, the university held exercises every monday, wednesday, and friday in which the student was meant through disputation, to apply the formal precepts in logic and rhetoric to the practical business of public speaking and debate. final examinations were still by disputation. the students came to learn to read latin easily. students acted in latin plays. if a student went to a tavern, he could be flogged. for too elaborate clothing, he could be fined. fines for absence from class were imposed. however, from this time until , a young man's university days were regarded as a period for the "sowing of wild oats". all students had to reside in a college or hall, subscribe to the articles of the university, the queen's supremacy, and the prayer book. meals were taken together in the college halls. the universities were divided into three tables: a fellows' table of earls, barons, gentlemen, and doctors; a second table of masters of arts, bachelors, and eminent citizens, and a third table of people of low condition. professors, doctors, masters of arts and students were all distinguishable by their gowns. undergraduate education was considered to be for the purpose of good living as well as good learning. it was to affect the body, mind, manners, sentiment, and business, instead of just leading to becoming a better disputant. the emphasis on manners came mostly from an italian influence. the university curriculum included latin and greek languages and was for four years. the student spent at least one year on logic (syllogizing, induction, deduction, fallacies, and the application of logic to other studies), at least one year on rhetoric, and at least one year on philosophy. the latter included physics, metaphysics, history, law, moral and political philosophy, modern languages, and ethics (domestic principles of government, military history, diplomatic history, and public principles of government), and mathematics (arithmetic, geometry, algebra, music, optics, astronomy). the astronomy taught was that of ptolemy, whose view was that the celestial bodies revolved around a spherical earth, on which he had laid out lines of longitude and latitude. there were lectures on greek and latin literature, including aristotle, plato, and cicero. there were no courses on english history in the universities. about , the curriculum was changed to two terms of grammar, four terms of rhetoric, five terms of dialectic (examining ideas and opinions logically, e.g. ascertaining truth by analyzing words in their context and equivocations), three terms of arithmetic, and two terms of music. there were now negative numbers, irrational numbers such as square roots of non-integers, and imaginary numbers such as square roots of negative numbers. the circumference and area of a circle could be computed from its radius, and the pythagorean theorem related the three sides of a right triangle. also available were astrology, alchemy (making various substances such as acids and alcohols), cultivation of gardens, and breeding of stock, especially dogs and horses. astronomy, geometry, natural and moral philosophy, and metaphysics were necessary for a master's degree. the university libraries of theological manuscripts in latin were supplemented with many non-religious books. there were graduate studies in theology, medicine, music, and law, which was a merging of civil and canon law together with preparatory work for studying common law at the inns of court in london. in london, legal training was given at the four inns of court. students were called to dinner by a horn. only young gentry were admitted there. a year's residence there after university gave a gentleman's son enough law to decide disputes of tenants on family estates or to act as justice of the peace in his home county. a full legal education gave him the ability to handle all family legal matters, including property matters. many later became justices of the peace or members of parliament. students spent two years in the clerks' commons, and two in the masters' commons. besides reading textbooks in latin, the students observed at court and did work for practicing attorneys. after about four more years' apprenticeship, a student could be called to the outer bar. there was a real bar of iron or wood separating the justices from the attorneys and litigants. as "utter barrister" or attorney, he would swear to "do no falsehood in the court, increase no fees but be contented with the old fees accustomed, delay no man for lucre or malice, but use myself in the office of an attorney within the court according to my learning and discretion, so help me god, amen". students often also studied and attended lectures on astronomy, geography, history, mathematics, theology, music, navigation, foreign languages, and lectures on anatomy and medicine sponsored by the college of physicians. a tour of the continent became a part of every gentleman's education. after about eight years' experience, attorneys could become readers, who gave lecturess; or benchers, who made the rules. benchers, who were elected by other benchers, were entrusted with the government of their inn of court, and usually were king's counsel. five to ten years later, a few of these were picked by the queen for serjeant at law, and therefore eligible to plead at the bar of common pleas. justices were chosen from the serjeants at law. gresham left the royal exchange to the city and the mercer's company on condition that they use some of its profits to appoint and pay seven lecturers in law, rhetoric, divinity, music, physics, geometry, and astronomy to teach at his mansion, which was called gresham college. they were installed in according to his will. their lectures were free, open to all, and often in english. they embraced mathematics and new scientific ideas and emphasized their practical applications. a tradition of research and teaching was established in mathematics and astronomy. there were language schools teaching french, italian, and spanish to the aspiring merchant and to gentlemen's sons and daughters. many people kept diaries. letter writing was frequent at court. most forms of english literature were now available in print. many ladies read aloud to each other in reading circles and to their households. some wrote poetry and did translations. correctness of spelling was beginning to be developed. printers tended to standardize it. there was much reading of romances, jest books, histories, plays, prayer collections, and encyclopedias, as well as the bible. in schools and gentry households, favorite reading was edmund spenser's "faerie queen" about moral virtues and the faults and errors which beset them; erasmus' new testament, "paraphrases", "colloquies", and "adages"; sir thomas north's edition of plutarch's "lives of the noble grecians and romans"; elyot's "the book named the governor"; and hoby's translation of "the courtier". gentlemen read books on the ideals of gentlemanly conduct, such as "institucion of a gentleman" ( ), and laurence humphrey's "the nobles: or of nobilites". francis bacon's "essays or counsels civil and moral" were popular for their wisdom. in them he commented on many subjects from marriage to atheism. he cautioned against unworthy authority, mass opinion, custom, and ostentation of apparent wisdom. he urged the use of words with their correct meaning. at a more popular level were caxton's "the golden legend", baldwin's "mirror for magistrates", foxe's "book of martyrs" about english protestant who suffered at the stake, sensational stories and pamphlets, printed sermons (including those of switzerland's calvin), chronicles, travel books, almanacs, herbals, and medical works. english fiction began and was read. there were some books for children. books were copyrighted, although non-gentlemen writers needed a patron. at the lowest level of literacy were ballads. next to sermons, the printing press was kept busiest with rhymed ballads about current events. printed broadsheets on political issues could be distributed quickly. in london, news was brought to the governor of the news staple, who classified it as authentic, apocryphal, barber's news, tailor's news, etc. and stamped it. books were also censored for matter against the state church. this was carried out through the stationers' company. this company was now, by charter, the official authority over the entire book trade, with almost sole rights of printing. (schools had rights of printing). it could burn other books and imprison their printers. italian business techniques were set forth in textbooks for merchants, using italian terms of business: debit (debito), credit (credito), inventory (inventorio), journal (giornal), and cash (cassa). the arithmetic of accounting operations, including multiplication, was described in "an introduction for to lerne to reckonwith the penne or counters" in . accounting advice was extended to farmers as well as merchants in the "the pathway to perfectness in the accomptes of debitor and creditor" by james peele, a salter of london. it repeated the age-old maxim: ...receive before you write, and write before you pay, so shall no part of your accompt in any wise decay. the "marchants avizo" by johne browne, merchant of bristol, gave information on foreign currencies and keeping of accounts, and included specimens of various business documents such as insurance policies, and bills of exchange. it also advised: take heed of using a false balance or measure...covet not over familiarity amongst men it maketh thee spend much loss of time. be not hasty in giving credit to every man, but take heed to a man that is full of words, that hath red eyes, that goeth much to law, and that is suspected to live unchaste ... when thou promiseth anything be not stuck to perform it, for he that giveth quickly giveth double ... fear god...know thy prince...love thy parents ...give reverence to thy betters ...be courteous and lowly to all men... be not wise in thine own conceit. the old prohibitions of the now declining canon law were still observed. that is, one should not seek wealth for its own sake or beyond what was requisite for a livelihood in one's station, exploit a customer's difficulties to extract an extravagant price, charge excessive interest, or engross to "corner the market". the printing press had made possible the methodizing of knowledge and its dissemination to a lay public. knowledge associated with the various professions, occupations, and trades was no longer secret or guarded as a mystery, to be passed on only to a chosen few. the sharing of knowledge was to benefit the community at large. reading became an out-of-school activity, for instruction as well as for pleasure. in , graphite was discovered in england, and gave rise to the pencil. surveying accuracy was improved with the new theodolite, which determined directions and measured angles and used a telescope that pivoted horizontally and vertically. scientists had the use of an air thermometer, in which a column of air in a glass tube sitting in a dish of water contracted or expanded with changes in the temperature, causing the water to move up or down the tube. william shakespeare, a glovemaker's son, wrote plays about historical events and plays which portrayed various human personalities and their interactions with each other. they were enjoyed by all classes of people. his histories were especially popular. the queen and various earls each employed players and actors, who went on tour as a troupe and performed on a round open-air stage, with people standing around to watch. in london, theaters such as the globe were built specifically for the performance of plays, which before had been performed at inns. the audience applauded and hissed. there were costumes, but no sets. ordinary admission was d. before being performed, a play had to be licensed by the master of the revels to make sure that there was nothing detrimental to the peace and public order. elizabeth issued a proclamation forbidding unlicensed interludes or plays, especially concerning religion or government policy on pain of imprisonment for at least fourteen days. the common people still went to morality plays, but also to plays in which historical personages were portrayed, such as richard ii, henry iv, and henry v. some plays were on contemporary issues. musicians played together as orchestras. music with singing was a popular pastime after supper; everyone was expected to participate. dancing was popular with all classes. gentlemen played cards, dice, chess, billiards, and tennis. they fenced and had games on horseback. their deer-hunting diminished as forests were cut down for agriculture and the deer were viewed as an enemy eating crops. falconry diminished as hedges and enclosures displaced the broad expanses of land. country people enjoyed music, dancing, pantomime shows with masks, hurling, running, swimming, leap frog, blind man's buff, shovelboard played with the hands, and football between villages with the goal to get the ball into one's own village. football and shin-kicking matches often resulted in injuries. they bought ballads from traveling peddlers. early morning dew gathered in may and early june was thought to have special curative powers. there were many tales involving fairies, witches, devils, ghosts, evil spirits, angels, and monsters which were enjoyed by adults as well as children. many people still believed in charms, curses, divination, omens, fate, and advice from astrologers. the ghosts of the earth walked the earth, usually because of some foul play to be disclosed, wrong to be set right, to warn those dear to them of peril, or to watch over hidden treasure. good witches cured and healed. fairies blessed homes, rewarded minor virtues, and punished mild wrongdoing. when fairies were unhappy, the weather was bad. there were parties for children. the merry guild feast was no longer a feature of village life. there were fewer holydays and festivals. the most prosperous period of the laborer was closing. an agricultural laborer's yearly wage was about s., but his cost of living, which now included house rent, was about s. a year. in , daily wages in the summer for an agricultural laborer were about d. and for an artisan d. in in the county of rutland, daily wages for laborers were d. in summer and d. in winter; and for artisans were d. in summer and d. in winter. unemployment was widespread. there were endowed hospitals in london for the sick and infirm. there were others for orphans, for derelict children, and for the destitute. they worked at jobs in the hospital according to their abilities. there was also a house of correction for discipline of the idle and vicious by productive work. elizabeth continued the practice of touching people to cure scrofula, although she could not bring herself to fully believe in the reality of such cures, contrary to her chaplain and her physician. in the towns, shop shutters were let down to form a counter at the front of the shop. goods were made and/or stored inside the shop. towns held a market once a week. fairs occurred once or twice a year. at given times in the towns, everyone was to throw buckets of water onto the street to cleanse it. during epidemics in towns, there was quarantine of those affected to stay in their houses unless going out on business. their houses were marked and they had to carry a white rod when outside. the quarantine of a person lasted for forty days. the straw in his house was burned and his clothes treated. people who died had to be buried under six feet of ground. there was an outbreak of plague in london roughly every ten years. there was a pity for the distressed that resulted in towns voting money for a people of a village that had burned down or been decimated by the plague. communities were taxed for the upkeep and relief of the prisoners in the gaols in their communities. queen elizabeth was puzzling over the proper relationship between the crown and the church when richard hooker, a humble scholar, theologian, and clergyman, attempted to find a justification in reason for the establishment of the church of england as an official part of the governing apparatus of the nation. his thinking was a turning point from the medieval notion that god ordered society, including the designation of its monarch and its natural laws, and the belief in a divine structure with a great chain of being, beginning with god and working down through the hierarchy of angels and saints to men, beasts, and vegetables, which structure fostered order in society. hooker restated the concept of aristotle that the purpose of society is to enable men to live well. he wrote that although the monarch was head of state and head of religion, the highest authority in civil affairs was parliament, and in religion, the convocation. the monarch had to maintain divine law, but could not make it. from this later came the idea that the state derives its authority from the will of the people and the consent of the governed. protestant women had more freedom in marriage and were allowed to participate in more church activities compared to catholic women, but they were not generally allowed to become pastors. due to sensitivities on the part of both catholics and protestants about a female being the head of the church, elizabeth was given the title of "supreme governor" of the church instead of "supreme head". elizabeth was not doctrinaire in religious matters, but pragmatic. she always looked for ways to accommodate all views on what religious aspects to adopt or decline. images, relics, pilgrimages, and rosaries were discouraged. but the catholic practice of kneeling at prayer, and bowing and doffing caps at the name of jesus were retained. also retained was the place of the altar or communion table at the east end of churches, special communion wafers instead of common bread, and elaborate clergy vestments. the communion prayer contained words expressing both the catholic view that the wafer and wine contained the real presence of the body and blood of christ, and the protestant view that they were commemorative only. communion was celebrated only at easter and other great festivals. church services included a sermon and were in accordance with a reformed prayer book and in english, as was the bible. care was even taken not to use words that would offend the scots, lutherans, calvinists, or huguenots. people could hold what religious beliefs they would, even atheism, as long as they maintained an outward conformity. attendance at state church services on sunday mornings and evenings and holydays was enforced by a fine of d. imposed by the church wardens. babies were to be baptized before they were one month old or the parents would be punished. the new religion had to be protected. members of the house of commons, lawyers, schoolmasters were to take the oath of supremacy or be imprisoned and make a forfeiture; a second refusal brought death. when numerous anabaptists came from the continent to live in the port towns, the queen issued a proclamation ordering them to leave the realm because their pernicious opinions could corrupt the church. the new church still accepted the theory of the devil causing storms, but opposed ringing the holy church bells to attempt to drive him away. the sins of people were also thought to cause storms, and also plagues. in , the church of england wrote down its christian protestant beliefs in thirty-nine articles of religion, which specifically excluded certain catholic beliefs. they were incorporated into statute in establishing them as the tenets of the official religion of england. the first eighteen endorsed the ideas of one god, christ as the son of god who was sacrificed for all the sins of men, the resurrection of christ from the dead and ascension into heaven, the holy ghost proceeding from the father and the son, the books of the bible, the original sin of adam and his offspring, justification of man by faith in christ rather than by good works, goods works as the inspired fruit and proof of faith in christ, christ in the flesh as like man except for the absence of sin, the chance for sinners who have been baptised to be forgiven if they truly repent and amend their lives, the predestination of some to be brought by christ to eternal salvation and their minds to be drawn up to high and heavenly things, and salvation only by the name of christ and not by a sect. other tenets described the proper functions of the church, distinguishing them from roman catholic practice. specifically, the church was not to expound one place of scripture so that it was inconsistent with another place of scripture. because man can err, the church was not to ordain or enforce anything to be believed for necessity of salvation. explicitly renounced were the romish doctrine concerning purgatory, pardons, worshipping, adoration of images or relics, invocation of saints, and the use in church of any language, such as latin, not understood by the people. only the sacraments of baptism and the lord's supper were recognized. the lord's supper was to be a sign of the love that christians ought to have among themselves and a sacrament of redemption by christ's death. the wine in the cup of blessing as well as the bread of the lord's supper was to be taken by lay- people and to be a partaking of christ; there was no romish mass. excommunication was limited to those who openly denounced the church. anyone openly breaking the traditions or ceremonies of the church which were approved by common authority were to be rebuked. elizabeth told the bishops that she wished certain homilies to be read in church, which encouraged good works such as fasting, prayer, alms-giving, christian behavior, repentance, and which discouraged idolatry, gluttony, drunkenness, excess of apparel, idleness, rebellion, and wife-beating, however provoked. she considered homilies more instructive and learned than ministers' sermons, which were often influenced by various gentlemen and were inconsistent with each other. consecration of bishops and ministers was regulated. they were allowed to marry. the standard prayer was designated thus: "our father who art in heaven, hallowed be thy name. thy kingdom come. thy will be done, on earth as it is in heaven. give us this day our daily bread, and forgive us our offenses as we forgive those who have offended against us. and lead us not into temptation, but deliver us from evil. for thine is the kingdom, the power, and the glory forever and ever, amen." there was difficulty persuading educated and moral men to be church ministers, even though elizabeth expressed to the bishops her preference for ministers who were honest and wise instead of learned in religious matters. the bible was read at home and familiar to everyone. this led to the growth of the puritan movement. the puritans believed in the right of the individual christian to interpret the scriptures for himself by spiritual illumination. they opposed the mystical interpretation of the communion service. the puritans complained that the church exerted insufficient control over the morals of the congregation. their ideas of morality were very strict and even plays were thought to be immoral. the independent puritans were those protestants who had fled from mary's catholic reign to the continent, where they were persuaded to the ideas of john calvin of geneva. he stressed the old idea of predestination in the salvation of souls, which had in the past been accepted by nearly all english christian leaders, thinkers, and teachers, but not stressed. the act of conversion was a common experience among the early puritans. the concomitant hatred of past sins and love of god which was felt in thankfulness for mercy were proof of selection for salvation. the good works that followed were merely an obligation showing that one's faith was real, but not a way to salvation. the puritans also accepted calvin's idea of independent church government. they therefore thought that ministers and lay elders of each parish should regulate religious affairs and that the bishops, who were "petty popes", should be reduced to an equality with the rest of the clergy, since they did not rule by divine right. the office of archbishop should be eliminated and the head of state should not necessarily be governor of the church. these ideas were widely disseminated in books and pamphlets. the puritans disrupted the established church's sunday services, tearing the surplice off the minister's back and the wafers and wine from the altar rail. the puritans arranged "lectures" on sunday afternoons and on weekdays. these were given gratuitously or funded by boroughs. they were strict about not working on the sabbath, which day they gave to spiritual exercises, meditations, and works of mercy. the only work allowed was preparing meals for themselves, caring for their animals, and milking the cows. they enforced a strict moral discipline on themselves. the puritans formed a party in the house of commons. the puritan movement included william brewster, an assistant to a court official who was disciplined for delivering, upon pressure from the council, the queen's signed execution order for mary of scotland after the queen had told him to hold it until she directed otherwise. after exhausting every other alternative, the queen had reluctantly agreed with her privy council on the execution in of mary, queen of scots, who had been involved in a plot to assassinate her and claim the throne of england. elizabeth's council had persuaded her that it was impossible for her to live in safety otherwise. the debased coinage was replaced by a recoinage of newly minted coins with a true silver weight. goldsmiths, who also worked silver, often acted as guardians of clients' wealth. they began to borrow at interest at one rate in order to lend out to traders at a higher rate. this began banking. patents were begun to encourage the new merchant lords to develop local manufactures or to expand import and export trade. patents were for a new manufacture or an improved older one and determined the wages of its trades. there was chartering of merchant companies and granting of exclusive rights to new industries as monopolies. some monopolies or licenses were patents or copyrights of inventors. others established trading companies for trade to certain foreign lands and supporting consular services. people holding monopolies were accountable to the government. there were monopolies on certain smoked fish, fish oil, seal oil, oil of blubber, vinegar, salt, currants, aniseed, juniper berry liquor, bottles, glasses, brushes, pots, bags, cloth, starch, steel, tin, iron, cards, horn, ox shinbones, ashes, leather pieces, earth coal, calamite stone, powder, saltpeter, and lead manufacturing by-products. for far-flung enterprises and those where special arrangements with foreign countries was required, there was sharing of stock of companies, usually by merchants of the same type of goods. in joint-stock companies each member took a certain number of shares and all the selling of the goods of each merchant was carried on by the officials of the company. the device of joint stock might take the form of a fully incorporated body or of a less formal and unincorporated syndicate. the greatest joint-stock company was east india company, chartered in to trade there in competition with the dutch east india company. it was given a fifteen year monopoly on trade east of the southern tip of africa. unlike the muscovy company, and merchants of the staple, individual members could not trade on their own account, but only through the corporate body on its voyages. each particular voyage was regulated and assisted by the crown and privy council, for instance when further subscriptions were needed, or when carpenters were needed to be pressed into service for fitting out ships, or to deal with an unsuccessful captain. its charter retained many of the aspects of the medieval trade guild: power to purchase lands, to sue and be sued, to make by-laws, and to punish offenders by fine or imprisonment. admission was by purchase of a share in a voyage, redemption, presentation, patrimony (adult sons of members), and apprenticeship. purchase of a share in a voyage was the most common method. a share for the first ship cost one hundred pounds. cash payments for less than the price of a share could be invested for ultimate redemption. occasionally presentation or a faculty "for the making of a freeman" was granted to some nobleman or powerful member. members' liability was limited to their individual subscriptions. each voyage had ) a royal commission authorizing the company to undertake the expedition and vesting in its commanders powers for punishing offenses during the voyage, and quenching any mutiny, quarrels, or dissension that might arise; ) a code of instructions from the company to the admiral and to commanders of ships setting forth in great detail the scope and objects of the voyage together with minute regulations for its conduct and trade; ) authorization for coinage of money or export of specie (gold or silver); and ) letters missive from the sovereign to foreign rulers at whose ports the ships were to trade. the first voyage brought back spices that were sold at auction in london for ten times their price in the indies and brought to shareholders a profit equivalent to / % yearly for the ten years when the going interest rate was % a year. town government was often controlled by a few merchant wholesalers. the entire trade of a town might be controlled by its drapers or by a company of the merchant adventurers of london. the charter of the latter as of allowed a common seal, perpetual existence, liberty to purchase lands, and liberty to exercise their government in any part of the nation. it was controlled by a group of rich londoners, no more than , who owned the bulk of the cloth exported. there were policies of insurance given by groups of people for losses of ships and their goods. marine insurance was regulated. new companies were incorporated for many trades. they were associations of employers rather than the old guilds which were associations of actual workers. the ostensible reason was the supervision of the quality of the wares produced in that trade, though shoemakers, haberdashers, saddlers, and curriers exercised close supervision over these wares.companies paid heavily for their patents or charters. there was no sharp line between craftsman and shopkeeper or between shopkeeper and wholesale merchant. in london, an enterprising citizen could pass freely from one occupation to another. borrowing money for a new enterprise was common. industrial suburbs grew up around london and some towns became known as specialists in certain industries. the building crafts in the towns often joined together into one company, e.g. wrights, carpenters, slaters, and sawyers, or joiners, turners, carvers, bricklayers, tilers, wallers, plasterers, and paviors. these companies included small contractors, independent masters, and journeymen. the master craftsman often was a tradesman as well, who supplied timber, bricks, or lime for the building being constructed. the company of painters was chartered with a provision prohibiting painting by persons not apprenticed for seven years. the prosperous merchants began to form a capitalistic class as capitalism grew. competition for renting farm land, previously unknown, caused these rents to rise. the price of wheat rose to an average of s. per quarter, thereby encouraging tillage once more. there was steady inflation. with enclosure of agricultural land there could be more innovation and more efficiency, e.g. the time for sowing could be chosen. it was easier to prevent over-grazing and half-starved animals as a result. the complications of the open system with its endless quarrels and lawsuits were avoided. now noblemen talked about manure and drainage, rotation of crops, clover, and turnips instead of hunting, horses, and dogs. the breed of horses and cattle was improved. there were specializations such as the hunting horse and the coach horse. by royal proclamation of , there were requirements for the keeping of certain horses. for instance, everyone with lands of at least , pounds had to keep six horses or geldings able for demi-lances [rider bearing a light lance] and ten horses or geldings for light horsemen [rode to battle, but fought on foot]. one with under pounds but over marks yearly had to keep one gelding for a light horseman. dogs had been bred into various types of hounds for hunting, water and land spaniels for falconry, and other dogs as house dogs or toy dogs. there were no longer any wild boar or wild cattle. the turkey joined the cocks, hens, geese, ducks, pigeons, and peacocks in the farmyard. manure and dressings were used to fertilize the soil. hay became a major crop because it could be grown on grazing lands and required little care. there are new and bigger industries such as glassware, iron, brasswares, alum and coppers, gunpowder, paper, coal, and sugar. the coal trade was given a monopoly. coal was used for fuel as well as wood, which was becoming scarce. iron smelters increasingly used coal instead of charcoal, which was limited. iron was used for firebacks, pots, and boilers. good quality steel was first produced in with the help of german craftsmen, and a slitting mill was opened in . small metal goods, especially cutlery, were made, as well as nails, bolts, hinges, locks, ploughing and harrowing equipment, rakes, pitch forks, shovels, spades, and sickles. lead was used for windows and roofs. copper and brass were used to make pots and pans. pewter was used for plates, drinking vessels, and candlesticks. competition was the mainspring of trade and therefore of town life. the mode of travel of the gentry was riding horses, but most people traveled by walking. people carried passes for travel that certified they were of good conduct and not a vagrant or sturdy rogue. bands of roving vagabonds terrorized the countryside. after a land survey completed in there arose travel books with maps, itineraries, and mileage between towns in england and wales. also, the queen sent her official mail by four royal postal routes along high roads from london to various corners of the nation. horses are posted along the way for the mail-deliverer's use. however, private mail still goes by packman or common carrier. the nation's inland trade developed a lot. there were many more wayfaring traders operating from town inns. in , the first canal was built with locks at exeter. more locks and canals facilitated river travel. at london bridge, waterwheels and pumps were installed. new sea navigation techniques improved voyages. seamen learned to fix their positions, using an astrolabe or quadrant to take the altitude of the sun and stars and to reckon by the north star. they used a nocturnal, which was read by touch, to help keep time at night by taking the altitude of the stars. they calculated tides. to measure distances, they invented the traverse board, which was bored with holes upon lines, showing the points of the compass; by means of pegs, the steersman kept an account of the course steered. a log tied to a rope with knots at equal intervals was used to measure speed. there were compasses with a bearing dial on a circular plate with degrees up to noted thereon. seamen had access to compilations of arab mathematicians and astronomers and to navigational manuals and technical works on the science of navigation and the instruments necessary for precision sailing. for merchants there were maps, books about maps, cosmographical surveys, and books on the newly discovered lands. in john mercator produced a map taking into account the converging of the meridians towards the pole. on this chart, a straight line course would correspond to a mariner's actual course through the water on the earth's sphere, instead of having the inaccuracies of a straight line on a map which suggested that the world was flat. it was in use by . in william gilbert, son of a gentleman, and physician to queen elizabeth, wrote a book on the magnetic properties of the earth. he cultivated the method of experiment and of inductive reasoning from observation and insisted on the need for a search for knowledge not in books but in things themselves. he showed that the earth was a great magnet with a north pole and a south pole, by comparing it to lodestones made into spheres in which a north and south pole could be found by intersecting lines of magnetism indicated by a needle on the stone. the vertical dip of the needle was explained by the magnetic attraction of the north pole. he showed how a lodestone's declination could be used to determine latitude at sea. he showed how the charge of a body could be retained for a period of time by covering the body with some non-conducting substance, such as silk. he distinguished magnetism from electricity, giving the latter its name. he discovered that atmospheric conditions affected the production of electricity, dryness decreasing it, and moisture increasing it. he expounded the idea of copernicus that the earth revolves around the sun in a solar system. however, the prevailing belief was still that the earth was at the center of the universe. christmas was an especially festive time of good fellowship. people greeted each other with "good cheer", "god be with you", or "against the new year". carols were often sung and musicians played many tunes. there was dancing and gambling. there were big dinners with many kinds of meat and drink. a hearty fire heated all the house. many alms were given to beggars. parliament enacted laws and voted taxes. the queen, house of lords, and house of commons cooperated together. there was relatively little dissension or debating. bills in the house of lords were read, voted on, discussed, and passed with the lords, peers, bishops, and justices sitting in their places according to their degree. the justices sat on the wool sacks. a bar separated this area from the rest of the room, where the members of the commons stood. there were many bills concerning personal, local, or sectional interests, but priority consideration was given to public measures. the house of lords still had members. the queen appointed and paid the speaker, clerk, and sergeant at arms of the commons. the knights in the commons were almost invariably from the county's leading families and chosen by consensus of knights with free land of at least s. in the county court. in the towns, the electors might be the town corporation, holders of certain properties, all the freemen, all the rate-payers, or all the male inhabitants. disputed elections were not usually concerned with political issues, but were rivalries for power. the commons gradually won for its members freedom from arrest without its permission and the right of punishing and expelling members for crimes committed. tax on land remained at % of its estimated yearly income. the queen deferred to the church convocation to define christian faith and religion, thus separating church and state functions. the treasury sought to keep a balanced budget by selling royal land and keeping crown expenditures down. the crown carried a slight debt incurred before the queen's accession. violence was still a part of the texture of everyday life. private armories and armed gangs were not uncommon. agricultural laborers kept sword and bow in a corner of their fields. non-political brutal crime and homicides were commonplace. there were frequent local riots and disturbances, in the country and in the towns. occasionally there were large-scale rebellions. but the rebellion of the earl of essex in had no aftermath in violence. in , the queen issued a proclamation enforcing curfew for london apprentices, who had been misruly. the queen issued proclamations to certain counties to place vagrant soldiers or vagrants under martial law because of numerous robberies. she ordered the deportation of vagrant irishmen in . theft and robbery were so usual that there were names for various techniques used. a ruffler went with a weapon to seek service, saying that he was a servitor in the wars, but his chief "trade" was to rob poor wayfaring men and market women. a prigman went with a stick in his hand like an idle person, but stole clothes off hedges. a whipjack begged like a mariner, but with a counterfeit license (called a "gibe"); he mostly robbed booths in fairs or pilfered ware from stalls, which was called "heaving of the booth". a frater had a counterfeit license to beg for some hospital, but preyed upon poor women coming and going to market. a quire bird was a person recently let out of prison, and was commonly a horse stealer. an upright man carried a truncheon of a staff and called others to account to him and give him a share or "snap" of all that they had gained in one month, and he often beat them. he took the chief place at any market walk and other assemblies. workers at inns often teamed up with robbers, telling them of wares or money travelers were carrying so the robber could profitably rob them after they left the inn. francis drake sailed around the world from to . walter ralegh made an expedition to north america in with the queen's authority to "discover barbarous countries, not actually possessed of any christian prince and inhabited by christian people, to occupy and enjoy". he found and named the land of virginia in honor of the queen, who was a virgin, and started a colony on roanoke island there. drake and ralegh plundered spanish ships for cargo such as american gold and silver, much of which was used to pay for the war with spain and much going to investors. seamen on navy and pirate ships raided captured vessels to seize personal possessions of the spanish on board. the experience fighting spanish ships led to improvements in ship design; building ships was no longer merely by copying another ship or a small model. when the seas were unsafe because of the war with spain, the export of english wool was disturbed and later replaced by trading from world ports. many london merchants grew rich from using their ships for pirating. in , a spanish armada came to invade england, return it to catholicism, and stop the pirating of spanish ships. in that battle off england's shores, drake and other experienced sea fighters led two hundred english ships, of which about were built to sink other ships rather than to board and capture them. these new english ships were longer and narrower and did away with the towering superstructures at bow and stern. this made them more maneuverable and easier to sail. also, the english guns were lighter, more numerous, and outranged the spanish guns. so the smaller english ships were able to get close enough to fire broadside after broadside against the big spanish troop-transport galleons, without being fired upon. the english sent fire ships into the spanish fleet when it was anchored, causing it's ships to disperse in a panic. then the direction of the wind forced the spanish galleons northward, where most of them were destroyed by storms. the english seamen had been arbitrarily pressed into this service. a royal proclamation of offered a reward of pounds for information on libels against the queen. there had been mounting demonstrations against her monopolies, which mostly affected household items. there had been abuses of monopolies, such as the steel monopoly had been sold for pounds s., but steel was then sold at d. per pound instead of the former / d. per pound. further the steel was mixed and of a lesser quality. this so damaged the knife and sword industry that about workers lost their jobs from it and became beggars. monopoly was a severe burden to the middle and poorer classes. also, the power of patent holders to arrest and imprison persons charged with infringing upon their rights was extended to any disliked person. when the house of commons protested against monopolies in , elizabeth reduced them. she addressed her council and the commons saying that "mr. speaker, you give me thanks, but i doubt me that i have more cause to thank you all than you me; and i charge you to thank them of the lower house from me. for had i not received a knowledge from you, i might have fallen into the lapse of an error only for lack of true information. since i was queen yet did i never put my pen to any grant but that upon pretext and semblance made unto me, it was both good and beneficial to the subject in general, though a private profit to some of my ancient servants who had deserved well. but the contrary being found by experience, i am exceedingly beholding to such subjects as would move the same at the first. and i am not so simple to suppose but that there be some of the lower house whom these grievances never touched; and for them i think they speak out of zeal to their countries and not out of spleen or malevolent affection, as being parties grieved. and i take it exceedingly gratefully from them, because it gives us to know that no respects or interests had moved them other than the minds they bear to suffer no diminution of our honor and our subjects' love unto us, the zeal of which affection tending to ease my people and knit their hearts unto me, i embrace with a princely care. for above all earthly treasures i esteem my people's love, more than which i desire not to merit. that my grants should be grievous unto my people and oppressions to be privileged under color of our patents, our kingly dignity shall not suffer it. yea, when i heard it i could give no rest unto my thoughts until i had reformed it. shall they (think you) escape unpunished that have thus oppressed you, and i have been respectless of their duty and regardless of our honor? no, no, mr. speaker, i assure you, were it not more for conscience' sake than for any glory or increase of love that i desire, these errors, troubles, vexations, and oppressions done by these varlets and low persons (not worthy the name of subjects) should not escape without condign punishment. but i perceive they dealt with me like physicians who, ministering a drug, make it more acceptable by giving it a good aromatical savor; or when they give pills, do gild them all over. i have ever used to set the last judgment day before my eyes and so to rule as i shall be judged, to answer before a higher judge. to whose judgment seat i do appeal that never thought was cherished in my heart that tended not unto my people's good. and now if my kingly bounties have been abused and my grants turned to the hurts of my people, contrary to my will and meaning, or if any in authority under me have neglected or perverted what i have committed to them, i hope good will not lay their culps [sins] and offenses to my charge. who, though there were danger in repealing our grants, yet what danger would i not rather incur for your good than i would suffer them still to continue? i know the title of a king is a glorious title, but assure yourself that the shining glory of princely authority hath not so dazzled the eyes of our understanding but that we well know and remember that we also are to yield an account of our actions before the great judge. to be a king and wear a crown is a thing more glorious to them that see it than it is pleasant to them that bear it. for myself, i was never so much enticed with the glorious name of a king or royal authority of a queen as delighted that god hath made me his instrument to maintain his truth and glory, and to defend this kingdom from peril, dishonor, tyranny, and oppression. there will never queen sit in my seat with more zeal to my country, care to my subjects, and that will sooner with willingness venture her life for your good and safety, than myself. for it is not my desire to live or reign longer than my life and reign shall be for your good. and though you have had and may have many princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving." about , richard hakluyt, a bristol clergyman, wrote "a particular discourse concerning western discoveries". this was to become the classic statement of the case for english colonization. it held out hope that the english would find needed timber for masts, pitch, tar, and ashes for soap. in rome in , giordano bruno, an italian monk and priest, was burned alive at the stake by a court of the inquisition for not recanting, although tortured, his heretical and blasphemous philosophy. he had opined that christianity was irrational and had no scientific basis. he declared that christ was only a skillful magician, that the bible could not be taken literally, that god and nature were not separate as taught by genesis, that the catholic church encouraged ignorance from the instinct of self-preservation, and that the earth and planets revolved around the sun, as did other planets around the "fixed" stars and other suns. the jesuits, a new catholic order brimming with zeal, sent missionaries to england to secretly convert people to catholicism. the practice of catholicism had gone underground in england, and some catholic householders maintained catholic priests in hidden places in their homes. although estate tails (estates descendible only to the heirs of the body of the original feofee) by law could not be sold or given away, this was circumvented by the fraudulent use of a "straw man". in collaboration with the possessor of the property, this straw man sued the possessor asserting that the property had been wrongfully taken from the straw man. the possessor pleaded that the crier of the court who had warranted the title should be called to defend the action. he failed to appear until after judgment had been given to the straw man. then the straw man conveyed it to the possessor or his nominee in fee simple. the law the following statute of artificers regulated labor for the next two centuries: no master or mistress may employ a servant for a term less than one year in the crafts of clothiers, woolen cloth weavers, tuckers, fullers, clothworkers, shearmen, dyers, hosiers, tailors, shoemakers, glovemakers, tanners, pewterers, bakers, brewers, cutlers, smith, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, feltmakers, bow-makers, arrow-makers, arrowhead-makers, butchers, cooks, or millers. also, every craftsman unmarried or under age who is not working must accept employment by any person needing the craft work. also, any common person between and who is not working must accept employment in agriculture. and, unmarried women between and may be required by town officials to work by the year, the week, or day for wages they determine. all artificers and laborers hired by the day or week shall work from am to pm. all artificers must labor at agriculture at haytime and harvest to avoid the loss of grain or hay. every householder who raises crops may receive as an apprentice a child between and to serve in agriculture until he is age . a householder in a town may receive a child as an apprentice for years, but merchants may only take as apprentices children of parents with s. freehold. no one may be a craftsman until he has served seven years as an apprentice. these artificers may have children as apprentices: smith, wheelmaker, ploughmaker, millmaker, miller, carpenter, rough mason, plasterer, a timber sawer, an ore burner, a lime burner, brickmaker, bricklayer, tilemaker, tiler, layer of slate roofs, layer of wood shingle roofs, layer of straw roofs, cooper, earthen potter, linen weaver, housewife who weaves wool for sale or for household use. purposes of the statute of artificiers were to advance agriculture, diminish idleness, and inhibit migration to the towns. it excluded three fourths of the rural population.) troops of vagabonds with weapons in the highways who pretend to be soldiers or mariners have committed robberies and murders. so all vagabonds shall settle down in some service or labor or trade. a vagabond or mighty strong beggar [able to work] shall be whipped. incorrigible and dangerous rogues shall be branded with an "r" mark on the left shoulder and be put to labor, because banishment did not work as they came back undetected. if one is caught again begging, he shall be deemed a felon. if a person marries a second time while the first spouse is still living, it shall be a felony and thus punishable by death. no attainder shall result in the forfeiture of dower by the offender's wife nor disinheritance of his heirs. no one shall forge a deed of land, charter, sealed writing, court roll or will. no one shall libel or slander so as to cause a rebellion. embezzlement or theft by a servant of his master's goods of s. or more is a felony. cut-purses and pick-purses shall not have benefit of clergy. a person robbing a house of s. by day when no one is there shall not have benefit of clergy, because too many poor persons who cannot hire a servant to look after their house when they go to work have been robbed. benefit of clergy may not be had for stabbing a person who has no weapon drawn, if he dies within six months. fraudulent and secret conveyances made to retain the use of one's land when one sells the land to a bona fide purchaser for value in fee simple, fee tail, for life, for lives, or for years are void. crown officials such as treasurers, receivers, accountants, and revenue collectors shall not embezzle crown funds and shall be personally liable for arrears. persons forcibly taking others across county lines to hold them for ransom and those taking or giving blackmail money and those who burn barns or stacks of grain shall be declared felons and shall suffer death, without any benefit of clergy or sanctuary. any person killing any pheasant, partridge, dove, pigeon, duck or the like with any gun, crossbow, stonebow, or longbow, or with dogs and nets or snares, or taking the eggs of such from their nests, or tracing or taking hares in the snow shall be imprisoned for three months unless he pays s. per head or, after one month's imprisonment, have two sureties bound for s. this is because the past penalty of payment hasn't deterred offenders, who frequently cannot pay. persons affected by the plague may not leave their houses or be deemed felons and suffer death. this is to avoid further infection. the towns may tax their inhabitants for the relief of infected persons. devising or speaking seditious rumors are penalized by the pillory and loss of both ears for the first offense; and pounds and six months imprisonment for the second offense. slandering the queen is penalized by the pillory and loss of one ear, or by marks and three months imprisonment, at the choice of the offender. the second offense is a felony. printing, writing, or publishing seditious books is a felony without benefit of clergy. wishing the queen dead, prophesying when she would die, or who would succeed her to the crown is a felony without benefit of clergy. attainders for these felonies shall not work corruption of the blood [heirs may inherit the property of the felon]. a debtor may not engage in a fraudulent collusion to sell his land and goods in order to avoid his creditors. this was designed to remedy the following problem: a native or denizen merchant in wholesale or retail goods who leaves the nation to defraud his creditors shall be declared a bankrupt. the chancellor may conduct an investigation to ascertain his land, house, and goods, no matter who may hold them. they shall be appraised and sold to satisfy his debts. lands, tenements, goods and chattels of accountants teller, or receiver who are in debt may be obtained by court order to satisfy the debt by garnishing the heir of the debtor after the heir has reached and for the years next ensuing. loan contracts for money lent may not be for more than s. for each s. yearly (i.e. % interest). all loans of money or forbearing of money in sales of goods not meeting this requirement shall be punishable by forfeit of the interest only. pawn brokers accepting stolen goods shall forfeit twice their value to the owner from whom stolen. when the hue and cry is raised for a robbery in a hundred, and other hundreds have been negligent, faulty, or defective in pursuit of the robber, then they must pay half the damages to the person robbed, while the hundred in which the robbery occurred pays the other half. robbers shall be pursued by horse and by foot. the mother and reputed father of any bastard who has been left to be kept at the parish where born must pay weekly for the upkeep and relief of such child, so that the true aged and disabled of the parish get their relief and to punish the lewd life. any innkeeper, victualer, or alehouse keeper who allows drinking by persons other than those invited by a traveler who accompanies him during his necessary abode there or other than laborers and handicraftsmen in towns upon the usual working days for one hour at dinner time to take their diet in an alehouse or other than laborers and workmen following their work to any given town to sojourn, lodge, or victual in any inn, alehouse or victualing house shall forfeit s. for each offense. this is because the use of inns, alehouses, and victualing houses was intended for relief and lodgings of traveling people and people not able to provide their own victuals, but not for entertainment and harboring of lewd and idle people who become drunk. no butcher may cut any hide or any ox, bull, steer, or cow so that it is impaired or may kill any calf under five weeks old. no butcher may be a tanner. no one may be a tanner unless that person has apprenticed as such for seven years, or is the son or wife of a tanner who has tanned for four years, or is a son or daughter of a tanner who inherits his tanhouse. tanners may not be shoemakers, curriers, butchers, or leatherworkers. only tanners may buy raw hides. only leatherworkers may buy leather. only sufficiently strong and substantial leather may be used for sole-leather. curriers may not be tanners. curriers may not refuse to curry leather. london searchers shall inspect leather, seal and mark that which is sufficient, and seize any that is insufficiently tanned, curried, wrought, or used. the incorporated company of ship masters may erect beacons and marks on the seashores and hills above, because certain steeples and other marks used for navigation have fallen down and ships therefore have been lost in the sea. there shall be one sheriff per county, because now there are enough able men to supply one per county. no one shall bribe an elector to vote for a certain person for fellow, scholar, or officer of a college, school, or hall or hospital so that the fittest persons will be elected, though lacking in money or friends, and learning will therefore be advanced. no master at a university may lease any land unless / of it is retained for raising crops to supply the colleges and halls for food for their scholars. fish, but no meat, may be eaten on wednesdays so that there will be more fishermen and mariners and repair of ports. (this was done because fishing had declined since the dissolution of the monasteries, where fissh was eaten eveery friday. eating fish instead of meat in lent in the springtime remained a tradition.) every person over years of age shall wear on sundays a wool knitted cap made by the cappers, except for maidens, ladies, gentlewomen, noble persons, and every lord, knight, and gentlemen with , s. of land, since the practice of not wearing caps has damaged the capping industry. this employed cappers and poor people they had employed and the decrepit and lame as carders, spinners, knitters, parters, forsers, thickers, dressers, dyers, battelers, shearers, pressers, edgers, liners, and bandmakers. no man under the degree of knight may wear a hat or cap of velvet. caps may not be made of felt, but only knit wool. only hats may be made of felt. this is to assist the craft of making wool caps. no one may make any hat unless he has served as apprentice for at least seven years. this is to prevent false and deceitful hat- making by unskillful persons. no one shall make false linen by stretching it and adding little pieces of wood, which is so weak that it comes apart after five washings. timber shall not be felled to make logs for fires for the making of iron. no one may take small fish to feed to dogs and pigs. only nets with mesh leaving three inches spaces may be used to catch fish. cottage and dwelling houses for workmen or laborers in mineral works, coal mines, or quarries of stone or slate for the making of brick, tile, lime, or coals shall be built only within a mile from such works. dwelling houses beyond this must be supported by four acres of land to be continually occupied and manured as long as the dwelling house is inhabited or else forfeit s. per month to the queen. cottages and dwelling houses for sailors or laborers working on ships for the sea shall be built only within a mile of the sea. a cottage may be built in a forest or park for a game keeper of the deer. a cottage may be built for a herdman or shepherd for the keeping of cattle or sheep of the town. a cottage may be built for a poor, lame, sick, aged, or disabled person on waste or common land. more families than one may not be placed in one cottage or dwelling house. (this is a zoning law.) any person with land in fee-simple may establish a hospital, abiding place, or house of correction to have continuance forever as a corporation for the sustenance and relief of the maimed, poor, or disabled people as to set the poor to work. the net income shall not exceed , s. yearly. no new iron mills or furnaces for making or working of any iron or iron metal shall be established in the country around london and the owners of carriages of coals, mines and iron which have impaired or destroyed the highways shall also carry coal ashes, gravel, or stone to repair these highways or else make a payment of s. d. for each cart load not carried. for repairing of highways, the supervisors may take the rubbish or smallest stones of any quarry along the road in their precinct. persons with s. in goods or s. in lands shall find two able men in their parish community to repair the highways yearly. landowners of oxford shall be taxed for the repair of the highway and bridge there. the price of barrels shall be set by mayors of the towns where they are sold. rugs shall weigh pounds at least and be yards at least in length and at most / yard wide. no cattle may be put in any enclosed woods that have been growing less than five years. at the end of five years growth, calves may be put in. at the end of six years growth, cattle may be put in. woods around london shall not be felled to be converted to coals for iron-works because london needs the wood to make buildings and for fireplaces. every melter and maker of wax from honeycombs shall put his mark on every piece of his wax to be sold. wrought wax such as in lights, staff-torches, red wax or sealing wax, book candles, or searing candles shall bear its maker's mark. all barrels of honey shall bear the mark of the honeymaker. wool cloth, cotton cloth, flannel cloth, hose-yarn, hats, and caps shall be dyed black only with dye from the woad plant and not with any false black dye. no one shall take or kill any pheasants with nets or devices at nighttime because such have become scarce. pontage [toll for upkeep and repair of bridges] shall be taken at certain bridges: carts d., horse and pack d., a flock of sheep d. no bishop may lease land for more than twenty-one years or longer than the lives of three designated persons. no bishop may alienate any possession of their sees to the crown. such are void. watermen transporting people on the thames river shall have served as apprentice to a waterman for five years or have been the son of a waterman. this is to prevent the loss of lives and goods by inexperienced watermen. spices and potions, including pepper, cloves, mace, nutmeg, cinnamon, ginger, almonds, and dates, which have usually been garbled [cleaned or sorted by sifting] shall be garbled, cleaned, sorted, and sealed by the garbler before sale. this is to prevent mingled, corrupt, and unclean spices and potions from being sold. plasterers shall cease painting because it has intruded upon the livelihoods of painters who have been apprenticed as such. fishermen and their guides may continue to use the coastland for their fishing activities despite the trespass to landowners. since sails for ships in recent years have been made in the realm instead of imported, none shall make such cloth unless he has been apprenticed in such or brought up in the trade for seven years. this is to stop the badness of such cloth. tonnage and poundage on goods exported and imported shall be taken to provide safeguard of the seas for such goods. all persons must go to the established church on sundays and holy days. the penalty was at first forfeiture d. along with church punishment, and later, pounds per month and being bound by two sureties for pounds for good behavior, and if the pounds is not paid, then forfeiture of all goods to be applied to the amount due and two-thirds of one's land. these laws were directed against catholicism, but were laxly enforced as long as worship was not open and no one wore priestly clothes: ) the writing, preaching, or maintaining of any foreign spiritual jurisdiction shall be punished by forfeiture of goods or, if the goods are not worth pounds, one year imprisonment, for the first offense; forfeiture of goods and lands and the king's protection, for the second offense; and the penalty for high treason for the third offense. ) any person leading others to the romish [catholic] religion is guilty of high treason. the penalty for saying mass is marks and one year's imprisonment. the penalty for hearing mass is marks and one year's imprisonment. if one is suspected of being a jesuit or priest giving mass, one must answer questions on examination or be imprisoned. ) papists [those who in conscience refused to take the oath of supremacy of the crown over the church] must stay in their place of abode and not go five miles from it, unless licensed to do so for business, or else forfeit one's goods and profits of land for life. if a copyholder, land is forfeited to one's lord. but if the goods are not worth s. or the land is not worth at least s., the realm must be abjured. otherwise, the papist is declared a felon without benefit of clergy. ) if a child is sent to a foreign land for catholic education, he cannot inherit lands or goods or money, unless he conforms to the established church on his return. there is also a pound penalty for the persons who sent him. judicial procedure the star chamber became the central criminal court after , and punished perjury, corruption, malfeasance throughout the legal system such as jury corruption and judicial bribery, rioting, slander, and libel. its procedure was inquisitory rather than accusative. it heard witnesses in camera [not in the presence of the suspected]. trial was by systematic interrogation of the suspected on oath, with torture if necessary in treason cases. silence could be taken for a confession of guilt. there was no jury. queen elizabeth chose not to sit on this court. punishments were imprisonment, fines, the pillory, ear cropping or tacking, whipping, stigmata on the face, but not death or any dismemberment except for the ears. (the gentry was exempt from whipping.) because the publication of many books and pamphlets against the government, especially the church, had led to discontents with the established church and to the spreading of sects and schisms, the star chamber in held that the printing trade was to be confined to london, except for one press at oxford and one at cambridge. no book or pamphlet could be printed unless the text was first seen, examined, and allowed by the archbishop of canterbury or the bishop of london. book publishers in violation were to be imprisoned for six months and banned from printing; their equipment was to be destroyed. wardens were authorized to search wherever "they shall have reasonable cause of suspicion", and to seize all such books and pamphlets printed. but printers continued to print unlicensed material. the ecclesiastical high commission [later called the court of high commission or high court of ecclesiastical causes] took over criminal cases formerly heard by the church courts. it also heard matters of domestic morals. it was led by bishops and privy council members who in were authorized by a statute of parliament to keep order within the church, discipline the clergy, and punish such lay offenses as were included in the ecclesiastical jurisdiction. obstinate heresy is still a crime punished by death, but practically, the bishops have little power of forcing heretics to stand trial. if anyone maintains papal authority, he forfeits his goods; on a third conviction, he is a traitor. the clergyman who adopts a prayer book other that the prescribed one commits a crime. excommunication has imprisonment behind it. elizabeth gave this court the power to fine and imprison, which the former church courts had not had. at first, the chief work was depriving papists of their benefices. suits on titles to land were restricted to the common law courts and no longer to be heard in the star chamber, chancery court, or in the court of requests (equity for poor people). the queen's privy council investigated sedition and treason, security of the regime, major economic offenses, international problems, civil commotion, officials abusing their positions, and persons perverting the course of justice. it frequently issued orders to justices of the peace, for instance to investigate riots and crimes, to enforce the statutes against vagrancy and illegal games, to regulate alehouses, to ensure that butchers, innkeepers, and victualers did not sell meat on fish days, and to gather information needed from the counties. the justices of the peace decided misdemeanors such as abduction of heiresses, illegal entry, petty thievery, damage to crops, fence-breaking, brawling, personal feuds, drunken pranks, swearing, profanation of the sabbath, alehouse nuisances, drunkenness, perjury, and malfeasance by officials. they held petty and quarter sessions. the justices of the peace had administrative duties in control of vagrancy, upkeep of roads and bridges, and arbitration of lawsuits referred to them by courts. they listed the poor in each parish community, assessed rates for their maintenance, and appointed overseers to administer the welfare system, deploying surplus funds to provide houses of correction for vagrants. raw materials such as wool, flax, hemp, and iron were bought upon which the able-bodied unemployed could be set to work at the parochial level. they determined wages in their districts, with no statutory ceiling on them, for all laborers, weavers, spinsters, workmen and workwomen working by the day, week, month, or year, or taking any work at any person's hand. there were about justices of the peace per county. all were unpaid. they performed these duties for the next years. the court of queen's bench and exchequer indirectly expanded their jurisdiction to include suits between citizens, formerly heard only the court of common pleas or chancery. chancery interrogated defendants. chancery often issued injunctions against suits in the common law courts. trial by combat was very rare. the justices of assize rode on circuit twice a year to enforce the criminal law and reported their assessment of the work of the justices of the peace back to the privy council. the duty to hear and determine felonies was taken from justices of the peace by . the justices of assize did this work. accused people could wait for years in gaol before their case was heard. felonies included breach of prison, hunting by night with painted faces, taking horses to scotland, stealing of hawks' eggs, stealing cattle, highway robbery, robbing on the sea, robbing houses, letting out of ponds, cutting of purses, deer-stealing at night, conjuring and witchcraft, diminution of coin, counterfeiting of coins, and impenitent roguery and idleness. the penalty was death. many people were hanged for the felony of theft over d. some bold men accused of felony refused to plead so that they could not be tried and found guilty. they died of heavy weights being placed on their bodies. but then their property could go to their heirs. trials of noblemen for treason shall be by their peers. stewards of leet and baron courts may no longer receive, in their own names, profits of the court over d. since they have vexed subjects with grievous fines and amercements so that profits of justice have grown much. jurors shall be selected from those people who have at least s. annual income instead of s. because sheriffs have been taking bribes by the most able and sufficient freeholders to be spared at home and the poorer and simpler people, who are least able to discern the causes in question, and most unable to bear the charges of appearance and attendance in such cases have been the jurors. also there had been inflation. defendants sued or informed against upon penal statutes may appear by attorney so that they may avoid the inconvenience of traveling a long distance to attend and put to bail. not only sheriffs, but their employees who impanel juries or execute process in the courts shall take an oath of office. a hundred shall answer for any robbery therein only if there has been negligence or fault in pursuit of the robber after a hue and cry is made because the past law has been too harsh and required payment for offenses from people unable to pay who have done everything reasonable to catch the robber. pleadings had to be in writing and oral testimony was given by sworn witnesses. case decisions are in books compiled by various reporters who sit in on court hearings rather than in year books. in the common law, trespass has given rise to the offshoot branch of "ejectment", which becomes the common means of recovering possession of land, no matter what kind of title the claimant asserts. trespass on the case has given rise to the offshoot branch of "trover" [finding another's goods and converting them to one's own use]. the use of the action of trover gradually supplants the action of detinue, which involves compurgation. in the common law courts, the action of assumpsit for enforcing certain promises is used more than the action of debt in those cases where there is a debt based on an agreement. the essential nature of "consideration" in contract is evolving from the procedural requirements for the action of assumpsit. consideration may consist in mutual promises, a precedent debt, or a detriment incurred by one who has simultaneously received a promise related to the detrimental action. consideration must be something, an act, or forbearance of an act that is of value. for instance, forbearance to sue a worthless claim is not consideration. the abstract concept of contract as an agreement between two parties which is supported by consideration is developing as the number of various agreements that are court enforceable expands. for instance the word "consideration" is used in hayward's case in in the court of wards on the construction of a deed. sir rowland hayward was seised in fee of the doddington manor and other lands and tenements, whereof part was in demesne, part in lease for years with rents reserved, and part in copyhold, by indenture, "in consideration of a certain sum of money" paid to him by richard warren and others, to whom he demised, granted, bargained and sold the said manor, lands and tenements, and the reversions and remainders of them, with all the rents reserved upon any demise, to have and to hold to them and their assigns, presently after the decease of sir rowland, for the term of years. it was held that the grantees could elect to take by bargain and sale or by demise, each of which had different consequences. in another case, a delivered s. to b to the use of c, a woman, to be delivered to her on the day of her marriage. before this day, a countermanded it, and called home the money. it was held in the chancery court that c could not recover because "there is no consideration why she should have it". in a case concerning a deed, a sold land to b for s., with confidence, that it would be to the use of a. this bargain "hath a consideration in itself ... and such a consideration is an indenture of bargain and sale". it was held that the transaction was not examinable except for fraud and that a was therefore estopped. a court reporter at the king's bench formulated two principles on consideration of the case of wilkes against leuson as: "the heir is estopped from falsifying the consideration acknowledged in the deed of feoffment of his ancestor. where a tenant in capite made a feoffment without consideration, but falsely alleged one in the deed on an office finding his dying seised, the master of the wards cannot remove the feoffees on examining into the consideration, and retain the land until &c. and though the heir tended, still if he do not prosecute his livery, the queen must admit the feoffees to their traverse, and to have the farm, &c." the court reporter summarized this case as follows: wilkes, who was merchant of the staple, who died in february last past, made a feoffment in the august before his death to one leuson, a knight, and his brother, and another, of the manor of hodnel in the county of warwick; and the deed, (seen) for seven thousand pounds [ , s.] to him paid by the feoffees, of which sum he made acquittance in the same deed (although in fact and in truth not a half-penny was paid), gave, granted, and confirmed &c "habendum eir et hoeredibus suis in perpetuum, ad proprium opus et usum ipsorum a. b. et c. in perpetuum," and not "hoeredum suorum," together with a clause of warranty to them, their heirs and assigns, in forma proedicta: and notwithstanding this feoffment he occupied the land with sheep, and took other profits during his life; and afterwards his death was found on a diem clausit extremum by office, that he died seised of the said manor in fee, and one i. wilkes his brother of full age found his next heir, and a tenure in capite found, and now within the three months the said feoffees sued in the court of wards to be admitted to their traverse, and also to have the manor in farm until &c. and although the said i. wilkes the brother had tendered a livery, yet he had not hitherto prosecuted it, but for cause had discontinued. and whether now the master of the wards at his discretion could remove the feoffees by injunction out of possession upon examination of the said consideration of the said feoffment which was false, and none such in truth, and retain it in the hands of the queen donec et quousque &c. was a great question. and by the opinion of the learned counsel of that court he cannot do it, but the queen is bound in justice to give livery to him who is found heir by the office, or if he will not proceed with that, to grant to the tenderers the traverse, and to have the farm, &c. the request above mentioned. and this by the statutes ... and note, that no averment can be allowed to the heir, that the said consideration was false against the deed and acknowledgment of his ancestor, for that would be to admit an inconvenience. and note the limitation of the use above, for divers doubted whether the feoffees shall have a fee-simple in the sue, because the use is not expressed, except only "to themselves (by their names) for ever;" but if those words had been wanting, it would have been clear enough that the consideration of seven thousand pounds had been sufficient, &c. for the law intends a sufficient consideration by reason of the said sum; but when the use is expressed otherwise by the party himself, it is otherwise. and also the warranty in the deed was "to them, their heirs, and assigns, in form aforesaid," which is a declaration of the intent of wilkes, that the feoffees shall not have the use in fee simple; and it may be that the use, during their three lives, is worth seven thousand pounds, and more &c. and suppose that the feoffment had been "to have to them and their heirs to the proper use and behoof of them the feoffees for the term of their lives for ever for seven thousand pounds," would they have any other estate than for the term of their lives in the use? i believe not; and so in the other case. a last example of a case concerning consideration is that of assaby and others against lady anne manners and others. the court reporter characterized the principle of the case as: "a. in consideration of his daughter's marriage covenants to stand seised to his own use for life, and that at his death she and her husband shall have the land in [fee] tail, and that all persons should stand seised to those uses, and also for further assurance. after the marriage he bargains and sell with fine and recovery to one with full notice of the covenants and use; this is of no avail, but on the death of a. the daughter and her husband may enter." the court reporter summarized this case as follows: a. was seised of land in fee, and in consideration of a marriage to be had between his daughter and heir apparent, and b. son and heir apparent of c. he covenanted and agreed by indenture with c. that he himself would have, hold, and retain the land to himself, and the profits of during his life, and that after his decease the said son and daughter should have the land to them and to the heirs of their two bodies lawfully begotten, and that all persons then or afterwards seised of the land should stand and be seised immediately after the marriage solemnized to the use of the said a. for the term of his life, and after his death to the use of the said son and daughter in tail as above, and covenanted further to make an assurance of the land before a certain day accordingly &c. and then the marriage took effect; and afterwards a. bargained and sold the land for two hundred marks (of which not a penny is paid) to a stranger, who had notice of the first agreements, covenants, and use, and enfeoffed divers persons to this last use, against whom a common recovery was had to his last use; and also a. levied a fine to the recoverers before any execution had, and notwithstanding all these things a. continued possession in taking the profits during his life; and afterwards died; and the son and daughter entered, and made a feoffment to their first use. and all this matter was found in assize by assaby and others against lady anne manners and others. and judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. yet error was alleged. the judgment in the assize is affirmed. the famous shelley's case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. for example, where property goes to a for life and the remainder goes to a's heirs, a's life estate and the remainder merge into a fee in a. a can sell or devise this interest. edward shelley was a tenant in fee tail general. he had two sons. the older son predeceased his father, leaving a daughter and his wife pregnant with a son. edward had a common recovery (the premises being in lease for years) to the use of himself for term of his life, after his decease to the use of the male heirs of his body, and of the male heirs of the body of such heirs, remainder over. after judgment and the awarding of the writ of seisin, but before its execution, edward died. after his death, and before the birth of his older son's son, the writ of seisin was executed. the younger son entered the land and leased it to a third party. afterwards, the son of the older son was born. he entered the land and ejected the third party. it was held that the younger son had taken quasi by descent until the birth of the older son's son. the entry by the older son's son was lawful. the third party was lawfully ejected. (shelley's case, king's bench, , english reports - full reprint, vol. , page .) about , london authorities punished nicholas jennings alias blunt for using elaborate disguises to present himself as an epileptic to beg for handouts from the public. he was pilloried, whipped, and pulled behind a cart through the streets. he was kept at the bridewell and was set to work at a mill. chapter the times: - due in part to increasing population, the prices of foodstuffs had risen sixfold from the later s, during which it had been stable. this inflation gradually impoverished those living on fixed wages. landlords could insist on even shorter leases and higher rents. london quadrupled in population. many lands that were in scattered strips, pasture lands, waste lands, and lands gained from drainage and disafforestation were enclosed for the introduction of convertible agriculture (e.g. market-oriented specialization) and only sometimes for sheep. the accompanying extinguishment of common rights was devastating to small tenants and cottagers. gentry and yeomen benefited greatly. there was a gradual consolidation of the land into fewer hands and demise of the small family farm. in towns, the mass of poor, unskilled workers with irregular work grew. prices finally flattened out in the s. society became polarized with a wealthy few growing wealthier and a mass of poor growing poorer. this social stratification became a permanent fixture of english society. poverty was no longer due to death of a spouse or parent, sickness or injury, or a phase in the life cycle such as youth or old age. many full-time wage earners were in constant danger of destitution. more subdivided land holdings in the country made holdings of cottagers minuscule. but these were eligible for parish relief under the poor laws. beside them were substantial numbers of rogues and vagabonds wandering the roads. these vagrants were usually young unmarried men. there were no more licensed liveries of lords. during the time to , there were distinct social classes in england which determined dress, convention in comportment which determined face-to-face contacts between superiors and inferiors, order of seating in church, place arrangement at tables, and rank order in public processions. it was influenced by power, wealth, life-style, educational level, and birth. the various classes lived in separate worlds; their paths did not cross each other. people moved only within their own class. each class had a separate existence as well as a different life style from the other classes. so each class developed a wariness of other classes. however, there was much social mobility between adjacent classes. at the top were the gentry, about % of the population. theirs was a landed wealth with large estate mansions. they employed many servants and could live a life of leisure. their lady wives often managed the household with many servants and freely visited friends and went out shopping, riding, or walking. they conversed with neighbors and made merry with them at childbirths, christenings, churchings, and funerals. gentlemen usually had positions of responsibility such as lords of manors and leaders in their parishes. these families often sent the oldest son to university to become a justice of the peace and then a member of parliament. they also served as county officers such as high constable of their hundred and grand jury member. their social, economic, and family ties were at least countywide. they composed about gentle families, including the peers, who had even more landed wealth, which was geographically dispersed. after the peers were: baronets (created in ), knights, esquires, and then ordinary gentlemen. these titles were acquired by being the son of such or by purchase. most gentry had a house in london, where they spent most of their time, as well as country mansions. about / of the land was in the hands of , of the nobility and landed gentry due in part to estate tails constructed by attorneys to favor hereditary interests. the gentry had also profited by commerce and possessions in the colonies. the country life of a country squire or gentleman dealt with all the daily affairs of a farm. he had men plough, sow, and reap. he takes part in the haying and getting cut grass under cover when a rain came. his sow farrows; his horse is gelded; a first lamb is born. he drags his pond and takes out great carps. his horses stray and he finds them in the pound. boys are bound to him for service. he hires servants, and some work out their time and some run away. knaves steal his sheep. his hog is stabbed. he and a neighbor argue about the setting up of a cottage. he borrows money for a daughter's dowry. he holds a leet court. he attends church on sunday and reads the lesson when called upon. he visits the local tavern to hear from his neighbors. country folk brawl. wenches get pregnant. men commit suicide, usually by hanging. many gentlemen spent their fortunes and died poor. new gentlemen from the lower classes took their places. the second class included the wealthier merchants and professional men of the towns. these men were prominent in town government. they usually had close family ties with the gentry, especially as sons. when wealthy enough, they often bought a country estate. the professional men included military officers, civil service officials, attorneys, some physicians, and a few clergymen. the instabilities of trade, high mortality rates in the towns, and high turnover rate among the leading urban families prevented any separate urban interest group arising that would be opposed to the landed gentry. also included in this second group were the most prosperous yeomanry of the countryside. the third class was the yeomanry at large, which included many more than the initial group who possessed land in freehold of at least s., partly due to inflation. freehold was the superior form of holding land because one was free to sell, exchange, or devise the land and had a political right to vote in parliamentary elections. other yeomen were those who possessed enough land, as copyholder or leaseholder, to be protected from fluctuations in the amount of the annual harvest, that is, at least acres. a copyholder rented land from a lord for a period of years or lives, usually three lives including that of the widow, and paid a substantial amount whenever the copyhold came up for renewal. the copyholder and leaseholder were distinguished from the mere tenant-at-will, whose only right was to gather his growing crop when his landlord decided to terminate his tenancy. the average yeoman had a one and a half story house, with a milkhouse, a malthouse, and other small buildings attached to the dwelling. the house would contain a main living room, a parlor, where there would be one or more beds, and several other rooms with beds. no longer was there a central great hall. cooking was done in a kitchen or over the open fire in the fireplace of the main room. furniture included large oak tables, stools, long bencches with or without backs, chests, cupboards, and a few hard-backed simple chairs. dishware was wood or pewter. the yeomen often became sureties for recognizances, witnesses to wills, parish managers, churchwardens, vestrymen, the chief civil officers of parishes and towns, overseers of the poor, surveyors of bridges and highways, jurymen and constables for the justices of the peace, and sheriffs' bailiffs. the families and servants of these yeomen ate meat, fish, wheaten bread, beer, cheese, milk, butter, and fruit. their wives were responsible for the dairy, poultry, orchard, garden, and perhaps pigs. they smoked and cured hams and bacon, salted fish, dried herbs for the kitchen or lavender and pot-pourri for sweetening the linen, and arranged apples and roots in lofts or long garrets under the roof to last the winter. they preserved fruits candied or in syrup. they preserved wines; made perfumes, washes for preserving the hair and complexion, rosemary to cleanse the hair, and elder-flower water for sunburn; distilled beverages; ordered wool hemp, and flax to spin for cloth (the weaving was usually done in the village); fashioned and sewed clothes and house linens; embroidered; dyed; malted oats; brewed; baked; and extracted oils. many prepared herb medicines and treated injuries, such as dressing wounds, binding arteries, and setting broken bones. wives also ploughed and sowed, weeded the crops, and sheared sheep. they sometimes cared for the poor and sold produce at the market. some yeomen were also tanners, painters, carpenters, or blacksmiths; and as such they were frequently brought before the justices of the peace for exercising a craft without having served an apprenticeship. the third class also included the freemen of the towns, who could engage independently in trade and had political rights. these freemen were about one-third of the male population of the town. the fourth class included the ordinary farmer leasing by copyhold, for usually years, five to fifty acres. from this class were drawn sidesmen [assistants to churchwardens] and constables. they had neither voice nor authority in government. their daily diet was bacon, beer, bread, and cheese. also in this class were the independent urban craftsmen who were not town freemen. their only voice in government was at the parish level. the fifth and lowest class included the laborers and cottagers, who were usually tenants at will. they were dependent on day labor. they started work at dawn, had breakfast for half an hour at six, worked until dinner, and then until supper at about six; in the summer they would then do chores around the barns until eight or nine. some were hedgers, ditchers, ploughmen, reapers, shepherds, and herdsmen. the cottagers' typical earnings of about s. a day amounted to about shillings a year, which was almost subsistence level. accordingly they also farmed a little on their four acres of land with garden. some also had a few animals. they lived in one or two room cottages of clay and branches of trees or wood, sometimes with a brick fireplace and chimney, and few windows. they ate bread, cheese, lard, soup, and greens. if a laborer was unmarried, he lived with the farmer. theirs was a constant battle for survival. they often moved, because of deprivation, to seek opportunity elsewhere. the town wage-earning laborers ranged from journeymen craftsmen to poor casual laborers. the mass of workers in london were not members of guilds, and the crime rate was high. the last three classes also contained rural craftsmen and tradesmen, who also farmed. the variety of trades became very large, e.g. tinsmiths, chain smiths, pewterers, violin makers, and glass painters. the curriers, who prepared hides for shoemakers, coachmakers, saddlers, and bookbinders, were incorporated. the fourth and fifth classes comprised about three fourths of the population. then there were the maritime groups: traders, ship owners, master and seamen, and the fishers. over one fourth of all households had servants. they were the social equals of day laborers, but materially better off with food and clothing plus an allowance of money of two pounds [ s.] a year. those who sewed got additional pay for this work. there was no great chasm between the family and the servants. they did not segregate into a parlor class and a kitchen class. the top servants were as educated as their masters and ate at the same table. great households had a chaplain and a steward to oversee the other servants. there was usually a cook. lower servants ate together. servants were disciplined by cuffs and slaps and by the rod by master or mistress. maids wore short gowns, a large apron, and a gypsy hat tied down over a cap. chamber maids helped to dress their mistresses. servants might sleep on trundle beds stored under their master's or mistress's bed, in a separate room, or on the straw loft over the stables. a footman wore a blue tunic or skirted coat with corded loop fasteners, knee-britches, and white stockings. he walked or ran on foot by the side of his master or mistress when they rode out on horseback or in a carriage and ran errands for him, such as leading a lame horse home or running messages. a good footman is described in this reference letter: "sir, - you wrote me lately for a footman, and i think this bearer will fit you: i know he can run well, for he has run away twice from me, but he knew the way back again: yet, though he has a running head as well as running heels (and who will expect a footman to be a stayed man) i would not part with him were i not to go post to the north. there be some things in him that answer for his waggeries: he will come when you call him, go when you bid him, and shut the door after him; he is faithful and stout, and a lover of his master. he is a great enemy to all dogs, if they bark at him in his running; for i have seen him confront a huge mastiff, and knock him down. when you go a country journey, or have him run with you a-hunting, you must spirit him with liquor; you must allow him also something extraordinary for socks, else you must not have him wait at your table; when his grease melts in running hard, it is subject to fall into his toes. i send him to you but for trial, if he be not for your turn, turn him over to me again when i come back..." dress was not as elaborate as in elizabethan times. for instance, fewer jewels were worn. ladies typically wore a brooch, earrings, and pearl necklaces. men also wore earrings. watches with elaborate cases were common. women's dresses were of satin, taffeta, and velvet, and were made by dressmakers. pockets were carried in the hand, fastened to the waist by a ribbon, or sewn in petticoats and accessible by a placket opening. the corset was greatly reduced. women's hair was in little natural-looking curls, a few small tendrils on the forehead with soft ringlets behind the ears, and the back coiled into a simple knot. men also wore their hair in ringlets. they had pockets in their trousers, first as a cloth pouch inserted into an opening in the side seam, and later sewn into the side seam. the bereaved wore black, and widows wore a black veil over their head until they remarried or died. rouge was worn by lower class women. toothbrushes, made with horsehair, were a new and costly luxury. the law dictating what classes could wear what clothes was difficult to enforce and the last such law was in . merchants who had become rich by pirating could now afford to extend their trading ventures well beyond the atlantic sea. cotton chintzes, calicoes, taffetas, muslins, and ginghams from india now became fashionable as dress fabrics. simple cotton replaced linen as the norm for napkins, tablecloths, bed sheets, and underwear. then it became the fashion to use calicoes for curtains, cushions, chairs, and beds. its inexpensiveness made these items affordable for many. there was a cotton-weaving industry in england from about , established by cotton workmen who fled to england in from antwerp, which had been captured. by , there were automatic weaving looms in london which could be operated by a novice. even large houses now tended to do without a courtyard and became compacted into one soaring and stately whole. a typical country house had deep-set windows of glass looking into a walled green court with a sundial in it and fringed around with small trees. the gables roofs were steep and full of crooks and angles, and covered with rough slate if there was a source for such nearby. there was an extensive use of red tile, either rectangular or other shapes and with design such as fishscales. the rooms are broad and spacious and include hall, great parlor, little parlor, matted chamber, and study. in the hall was still the great, heavy table. dining tables were covered with cloth, carpet, or printed leather. meals were increasingly eaten in a parlor. noble men now preferred to be waited upon by pages and grooms instead of by their social equals as before. after dinner, they deserted the parlor to retire into drawing rooms for conversation and desserts of sweet wine and spiced delicacies supplemented by fruit. afterward, there might be dancing and then supper. in smaller parlors, there was increasing use of oval oak tables with folding leaves. chests of drawers richly carved or inlaid and with brass handles were coming into increased use. walls were lined with panels and had pictures or were hung with tapestry. carpets, rugs, and curtains kept people warm. there were many stools to sit on, and some arm chairs. wide and handsome open staircases separated the floors. upstairs, the sitting and bedrooms open into each other with broad, heavy doors. bedrooms had four-post beds and wardrobes with shelves and pegs. under the roof are garrets, apple-lofts, and root-chambers. underneath is a cellar. outside is a farmyard with outbuildings such as bake house, dairy, cheese-press house, brewery, stilling house, malt house, fowl house, dove cot, pig stye, slaughter-house, wood house, barns, stable, and sometimes a mill. there were stew-ponds for fish and a park with a decoy for wild fowl. there was also a laundry, carpenter's bench, blacksmith's forge, and pots and equipment of a house painter. in the s, towns were fortified by walled ditches instead of relying on castles, which couldn't contain enough men to protect the townspeople. also in towns, water was supplied by local pumps and wells. in , a thirty-eight-mile aqueduct brought spring water into london. in the country, floors were of polished wood or stone and strewn with rushes. a ladies' attendant might sleep the same bedroom on a bed which slid under the ladies' bed. apprentices and shop boys had to sleep under the counter. country laborers slept in a loft on straw. bread was made in each household. there were bedroom chairs with enclosed chamber pots. wood fires were the usual type. coal was coming into use in the towns and near coal mines. charcoal was also used. food was roasted on a spit over a fire, baked, or broiled. people still licked their fingers at meals. the well-to-do had wax candles. tallow dips were used by the poor and for the kitchen. people drank cordials and homemade wines made with grapes, currants, oranges, or ginger. some mead was also drunk. tobacco, potatoes, tea, asparagus, kidney beans, scarlet runners, cardoons (similar to artichokes), horseradish, sugarcane, and turkeys for christmas, were introduced from the new world, china, and india. tea was a rare and expensive luxury. coffee was a new drink. with the cane sugar was made sweetened puddings, pies, and drinks. the potato caused the advent of distillation of concentrated alcohol from fermented potato mashes. there was a distiller's company by . distilleries' drinks had higher alcoholic content than wine or beer. the merchant adventurers sold in town stores silks, satins, diamonds, pearls, silver, and gold. there were women peddlers selling hats and hosiery from door to door and women shopkeepers, booksellers, alehouse keepers, linen drapers, brewers, and ale- wives. london had polluted air and water, industrial noise, and traffic congestion. work on farms was still year-round. in january and february, fields were ploughed and harrowed and the manure spread. also, trees and hedges were set, fruit trees pruned, and timber lopped. in march and april, the fields were stirred again and the wheat and rye sown. in may gardens were planted, hop vines trained to poles, ditches scoured, lambs weaned, and sheep watched for "rot". in june sheep were washed and sheared, and fields were spread with lime and clay, and manured. in july hay was cut, dried, and stacked. in august crops were harvested, which called for extra help from neighbors and townsmen who took holidays at harvesting. then there was threshing, and the sowing of winter wheat and rye. in the autumn, cider from apples and perry from pears might be made. by november the fall planting was finished and the time had come for the killing of cattle and hanging up their salted carcasses for winter meat. straw would be laid down with dung, to be spread next spring on the fields. stock that could not live outdoors in winter were brought into barns. government regulated the economy. in times of dearth, it ordered justices of the peace to buy grain and sell it below cost. it forbade employers to lay off workers whose products they could not sell. it used the star chamber court to enforce economic regulations. enclosures of land were made to carry on improved methods of tillage, which yielded more grain and more sheep fleece. drainage of extensive marsh land created more land for agriculture. waste land was used to breed game and "fowling" contributed to farmers' and laborers' livelihoods. killing game was not the exclusive right of landowners, but was a common privilege. the agricultural laborer, who worked for wages and composed most of the wage- earning population, found it hard to make ends meet. there were food riots usually during years of harvest failure, in which organized groups seized foodstuffs being transported or in markets. also, there were enclosure riots, in which organized groups destroyed hedges and fences erected in agrarian reorganization to restrict access to or to subdivide former common pasture land. these self- help riots were last resorts to appeals. they were relatively orderly and did not expand into random violence. the rioters were seldom punished more than a fining or whipping of the leaders and action was taken to satisfy their legitimate grievances. the poor came to resent the rich and there was a rise in crime among the poor. penal laws were frequently updated in an effort to bring more order. in , weekly wages for a mason were s. or s., for a laborer were s. or s., for a carpenter s. or s. an unskilled laborer received s. a day. there were conventions of paternalism and deference between neighbors of unequal social status. a social superior often protected his lessers from impoverishment for instance, the landlord lessened rents in times of harvest failure. a social superior would help find employment for a lesser person or his children, stand surety for a recognizance, intervene in a court case, or have his wife tend a sick member of his lesser's family. a social obligation was felt by most of the rich, the landlords, the yeomen farmers, and the clergy. this system of paternalism and social deference was expressed and reinforced at commonly attended village sports and games, dances, wakes and "ales" (the proceeds of which went to the relief of a certain person in distress), "rush-bearings", parish feasts, weddings, christenings, "churchings" to give thanks for births, and funerals. even the poor were buried in coffins. also there was social interaction at the local alehouse, where neighbors drank, talked, sang, and played at bowls or "shove goat" together. quarrelling was commonplace. for instance, borough authorities would squabble over the choice of a schoolmaster; the parson would carry on a long fight with parishioners over tithe hens and pigs; two country gentlemen would continue a vendetta started by their great-grandfathers over a ditch or hunting rights; the parishioners would wrangle with the churchwardens over the allocation of pews. the position of one's pew reflected social position. men tried to keep the pews of their ancestors and the newly prosperous wanted the recognition in the better pews, for which they had to pay a higher amount. but, on the other hand, farmers were full of good will toward their neighbors. they lent farm and kitchen equipment, helped raise timbers for a neighbor's new barn, sent food and cooked dishes to those providing a funeral feast and to the sick and incurable. village standards of behavior required that a person not to drink to excess, quarrel, argue, profane, gossip, cause a nuisance, abuse wife or children, or harbor suspicious strangers, and to pay scot and bear lot as he was asked. neighbors generally got along well and frequently borrowed and loaned small sums of money to each other without interest for needs that suddenly arose. bad behavior was addressed by the church by mediation and, if this failed, by exclusion from holy communion. there was also whipping and the stocks. marital sex was thought to be good for the health and happiness of the husband and enjoyable by wives. the possibility of female orgasm was encouraged. both women and men were thought to have "seed" and drank certain potions to cause pregnancy or to prevent birth. some argued that orgasm of both partners was necessary for the "seed" of the male and female to mix to produce pregnancy. most women were in a virtual state of perpetual pregnancy. both catholics and protestants thought that god wanted them to multiply and cover the earth. catholics thought that the only goal of sex was procreation. men were considered ready for marriage only when they could support a family, which was usually at about age . brides were normally virgins, but there was bridal pregnancy of about %. women usually married at about age . marriages were usually within one's own class and religion. the aristocracy often initiated matches of their children for the sake of continuity in the family estates and tried to obtain the consent of their children for the match in mind. the age of consent to marry was for boys and for girls. girls in arranged marriages often married at , and boys before they went to university. but the girls usually stayed with their parents for a couple of years before living with their husbands. if married before puberty, consummation of the marriage waited for such time. in other classes, the initiative was usually taken by the child. dowries and marriage portions usually were given by the parents of the bride. wet-nurses frequently were used, even by puritans. there were no baby bottles. many babies died, causing their parents much grief. about / of women's deaths occurred during childbirth. a child was deemed to be the husband's if he was within the four seas, i.e. not in foreign lands, for an agreed length of time. illegitimacy was infrequent, and punished by church-mandated public penance by the mother and lesser penance and maintenance by the father. the church court punished adultery and defamation for improper sexual conduct. the established church still taught that the husband was to be the authority in marriage and had the duty to provide for, protect, and maintain his wife. wives were to obey their husbands, but could also admonish and advise their husbands without reproach. in literature, women were portrayed as inferior to men intellectually and morally as well as physically. in reality wives did not fit the image of women portrayed by the church and literature. quarrels between husband and wife were not uncommon and were not stopped by a husband's assertion of authority. wives were very active in the harvesting and did casual labor of washing, weeding, and stone-picking. farmers' and tradesmen's wives kept accounts, looked after the garden, orchard, pigs, and poultry; brewed beer; spun wool and flax; and acted as agents in business affairs. wives of craftsmen and tradesmen participated actively in their husbands' shops. wives of weavers spun for their husband's employers. wives of the gentry ran their households with their husbands. the lady of a large mansion superintended the household, ordering and looking after the servants, and seeing to the education of her children. mothers handed down their recipes to their daughters. women still did much needlework and embroidering for clothing and house, such as cushions, screens, bed curtains, window curtains, hangings, footstools, book covers, and small chests of drawers for valuables. liking simplicity, puritan women did less of this work. naming one's wife as executor of one's will was the norm. jointures [property for a widow] were negotiated at the betrothal of ladies. widows of manorial tenants were guaranteed by law one-third of family real property, despite creditors. but most testators went beyond this and gave a life interest in the farm or family house. so it was customary for a widow to remain in occupation of the land until her death or remarriage. few widows or widowers lived with one of their children. widows usually had their husband's guild rights and privileges conferred upon them, e.g. to receive apprentices. in london, custom gave / of a deceased husband's estate to his wife on his death, but / if there were no children. the other part went according to his will. if a widow did not remarry in memory of her husband, she was esteemed. but remarriage was common because the life expectancy after birth was about years. sons of the well-to-do went into law, the church, the army, or the navy. if not fit for such, they usually went into a trade, apprenticing, for instance, with a draper, silk merchant, or goldsmith. sometimes a son was sent to the house of a great man as a page or esquire to learn the ways of courtiers and perhaps become a diplomat. the guild with its master and their employees was being replaced by a company of masters. james i ruled over both england and scotland. he had come from scotland, so was unfamiliar with english love of their rights, passion for liberty and justice, and extensive discussing of religion and quoting scripture. when he came to the throne, he had a conference with a group of puritans who asked for certain reforms: ceremonies such as the cross in baptism and the ring in marriage should not be used, only educated men competent to preach should be made ministers, bishops should not be allowed to hold benefices that they did not administer, and minor officials should not excommunicate for trifles and twelve-penny matters. he not only denied their requests, but had the english bible revised into the king james version, which was published in . this was to replace the popular geneva bible written by english protestant refugees from catholic queen mary's reign, which he did not like because some of its commentary was not highly favorable to kings. james didn't believe a king had to live by the law; he hadn't as king of scotland. he tried to imbue into england the idea of a divine right of kings to rule that he had held in scotland. the established church quickly endorsed and preached this idea. the selection of the clergy of the parish churches was now often in the hands of the parishioners, having been sold to them by the patron lord of the manor. some patrons sold the right of selection to a tradesman or yeoman who wished to select his son or a relative. some rights of selection were in the hands of bishops, the colleges, and the crown. the parish clergyman was appointed for life and removed only for grave cause. most parishioners wanted a sermon created by their minister instead of repetitious homilies and constant prayer. they thought that the object of worship in church was to rouse men to think and act about the problems of the world. in , the king mandated that clergymen quote scripture only in context of the book of articles of religion of or the two books of homilies and not preach any sermon on sunday afternoon except on some part of the catechism or some text out of the creed, ten commandments, or the lord's prayer. the puritan movement grew. about % of the protestants were puritans. these included country gentlemen and wealthier traders. they dressed simply in gray or other drab colors and wore their hair short to protest the fashion of long curls. they lived simply and disapproved of dancing because it induced lasciviousness and of theater because of its lewdness. theaters and brothels still shared the same neighborhoods, the same customers, and sometimes the same employees. prostitutes went to plays to find customers; men shouldered and shoved each other in competing to sit next to attractive women to get to know them. the puritans also disapproved of cock fights because they led to gambling and disorder, and maypole celebrations because of their paganism. there was less humor. many became stoics. the puritan church ceremonies were plain, with no ornamentation. puritans prayed several times a day and read the bible to each other in family groups to look for guidance in their conduct and life. they asked for god to intervene in personal matters and looked for signs of his pleasure or displeasure in happenings such as a tree falling close but not touching him, or his horse throwing him without injury to him. when there was an illness in the family or misfortune, they examined their past life for sins and tried to correct shortcomings. they circulated records of puritan lives including spiritual diaries. they believed in the equality of men and that a good man was better than a bad peer, bishop, or king. puritan influence made families closer and not merely dependent on the will of the husband or father. there was a sense of spiritual fellowship among family members as individuals. they emphasized the real need of a lasting love relationship between husband and wife, so a mutual liking that could develop into love between a young couple in an arranged match was essential. most puritans felt that the bishops were as tyrannical as the pope had been and that more reform was needed. they favored the presbyterian form of church government developed by john calvin in switzerland. the presbyter was the position below bishop. parishes were governed by boards consisting of a minister and lay elders elected by the parishioners. these boards sent elected representatives to councils. all lay elders and ministers had equal rank with each other. the calvinist god preordained salvation only for the elect and damnation and everlasting punishment for the rest of humanity, but the puritans had an optimism about avoiding this damnation. they believed that at his conversion a person received grace, which was a sign that he was predestined for salvation. they rejected all ecclesiastical institutions except as established by each parish over its own elected pastor and members. they rejected the established church's control from the top by bishops. they believed in negotiating directly with god for the welfare of the soul without the priest or church organization. the fear of witchcraft grew with puritanism. poor decrepit old defenseless women, often deformed and feeble-minded, were thought to be witches. their warts and tumors were thought to be teats for the devil to suck or the devil's mark. cursing or ill-tempers, probably from old age pains, or having cats were further indications of witchery. when the king learned in that the english puritans had prevented certain recreations after the sunday service, he proclaimed that the people should not be restrained from lawful recreations and exercise such as dancing, may-games, whitsunales, morris-dances, may-pole sports, archery for men, leaping, and vaulting. also women could carry rushes to decorate the church as they had done in the past. his stated purpose was to prevent people such as catholics from being deterred from conversion, to promote physical fitness for war, and to keep people from drinking and making discontented speeches in their ale houses. still unlawful on sunday were bear and bull baitings and bowlings. besides the puritans, there were other independent sects, such as the congregationalists, whose churches gathered together by the inspiration of jesus. this sect was started by english merchants residing in holland who set up congregations of englishmen under their patronage there; they kept minister and elders well under their control. the baptists emerged out of the independents. they believed that only adults, who were capable of full belief, and not children, could be baptized. they also believed that it was the right of any man to seek god's truth for himself in the scriptures and that obedience to the state should not extend beyond personal conscience. one fourth of all children born did not live to the age of ten, most dying in their first year. babies had close caps over their head, a rattle, and slept in a sturdy wood cradle that rocked on the floor, usually near the hearth. babies of wealthier families had nurses. the babies of ladies were suckled by wet nurses. parents raised children with affection and tried to prepare them to become independent self-sustaining adults. there was less severity than in tudor times, although the maxim "spare the rod and spoil the child" was generally believed, especially by puritans, and applied to even very young children. in disciplining a child, an admonition was first used, and the rod as a last resort, with an explanation of the reasons for its use. there were nursery rhymes and stories such as "little bo-peep", "jack and the beanstalk", "tom thumb", "chicken little", and robin hood and king arthur tales, and probably also "puss in boots", "red ridinghood", "cinderella", "beauty and the beast", "bluebeard" and aesop's fables. "little jack horner" who sat in a corner was a satire on the puritan aversion to christmas pudding and sense of conscious virtue. toys included dolls, balls, drums, and hobby horses. children played "hide and seek", "here we go around the mulberry bush", and other group games. school children were taught by "horn books". this was a piece of paper with the alphabet and perhaps a religious verse, such as the paternoster prayer, that was mounted on wood and covered with thin horn to prevent tearing. little girls cross-stitched the alphabet and numerals on samplers. block alphabets were coming into use. most market towns had a grammar school which would qualify a student for university. they were attended by sons of noblemen, country squires [poor gentlemen], merchants, and substantial yeomen, and in some free schools, the poor. school hours were from : a.m. to noon or later. multiplication was taught. if affordable, families had their children involved in education after they were small until they left home at about fifteen for apprenticeship or service. otherwise, children worked with their families from the age of seven, e.g. carding and spinning wool, until leaving home at about fifteen. there were boarding schools such as winchester, eton, westminster, st. paul's, and merchant taylors'. there, senior boys selected for conduct and ability supervised younger boys. they thereby got experience for a future in public life. the system was also a check on bullying of the weak by the strong. the curriculum included lilly's "grammar"; aesop; terence's roman comic plays; virgil's "aeneid", the national epic of rome; cicero's "letters" reflecting roman life; sallust's histories showing people and their motives; caesar's "commentaries" on the gallic and civil wars; horace's "epistles" about life and poetry; poet ovid's "metamorphoses" on adventures and love affairs of deities and heroes, "fasti" on roman religious festivals and customs; donatus' grammar book; and other ancient latin authors. football, with hog bladders, and tennis were played. these schools were self-supporting and did their own farming. private schools for girls were founded in and around london. they were attended by daughters of the well-to-do merchant class, nobility, and gentry. they were taught singing, playing of instruments, dancing, french, fine sewing, embroidery, and sometimes arithmetic. there were not many girls' boarding schools. fewer served in the house of some noble lady as before. most commonly, the sons and daughters of gentlemen and nobles were taught by private tutors. a tutor in the house educated the girls to the same extent as the boys. frequently, the mother educated her daughters. a considerable number of girls of other backgrounds such as the yeomanry and the town citizenry somehow learned to read and write. boys began at university usually from age to , but sometimes as young as . the universities provided a broad-based education in the classics, logic and rhetoric, history, theology, and modern languages for gentlemen and gave a homogenous national culture to the ruling class. there was a humanist ideal of a gentleman scholar. the method of study was based largely on lectures and disputations. each fellow had about five students to tutor. in many cases, he took charge of the finances of his students, paying his bills to tradesmen and the college. his reimbursement by the students' fathers put them into friendly contact with the family. the students slept in trundle beds around his bed and had an adjacent room for study. aristotle, whose authority was paramount, remained the lynch pin of university studies, especially for logic and dialectic. the study of rhetoric was based on quintilian, the latin writer, and the greek treatise of hermogenes of tarsus. also studied was cicero's orations as models of style. examination for degrees was by disputation over a thesis of the student. the b.a. degree was given after four years of study, and the m.a. after three more. there were advanced degrees in civil law, which required seven more years of study, medicine, seven years, divinity, more than seven years, and music. many of the men who continued for advanced degrees became fellows and took part in the teaching. most fellowships were restricted to clerics. oxford and cambridge universities operated under a tutorial system. access to grammar schools and universities was closed to girls of whatever class. oxford university now had the bodleian library. in the universities, there were three types of students: poor scholars, who received scholarships and also performed various kinds of service such as kitchen work and did errands for fellows such as carrying water and waiting on tables; commoners, who paid low fees and were often the sons of economical gentlemen or businessmen; and the fellow commoners, a privileged and well-to-do minority, usually sons of noblemen or great country gentlemen. the fellow commoners paid high fees, had large rooms, sometimes had a personal tutor or servant, and had the right to eat with the fellows at high table. here, gentlemen made friends with their social equals from all over the country. students wore new- fashioned gowns of many colors and colored stockings. they put on stage plays in latin and english. the students played at running, jumping, and pitching the bar, and at the forbidden swimming and football. they were not to have irreligious books or dogs. cards and dice could be played only at christmas time. students still drank, swore, and rioted, but they were disallowed from going into town without special permission. those below a b.a. had to be accompanied by a tutor or an m.a. they were forbidden from taverns, boxing matches, dances, cock fights, and loitering in the street or market. sometimes a disputation between two colleges turned into a street brawl. punishment was by flogging. each university had a chancellor, usually a great nobleman or statesman, who represented the university in dealings with the government and initiated policies. the vice-chancellor was appointed for a year from the group of heads of college. he looked out for the government of halls, enforced the rules of the university, kept its courts, licensed wine shops, and shared control of the town with the mayor. tutors were common. they resided at the boy's house or took boys to board with them at their houses in england or on the continent. the tutor sometimes accompanied his student to grammar school or university. puritans frequently sent their sons to board in the house of some frenchman or swiss protestant to learn the calvinist doctrines or on tour with a tutor. certain halls in the universities were predominately puritan. catholics were required to have their children taught in a home of a protestant, a relative if possible. the inns of court were known as "the third university". it served the profession of law, and was a training ground for the sons of nobility and the gentry and for those entering the service of the commonwealth. the inns were self-governing and ruled by custom. students were to live within the inn, two to a room, but often there were not enough rooms, so some students lived outside the quadrangles. every student was supposed to partake of commons or meals for a certain fraction of the year - from eight weeks to three months and there to argue issues in cases brought up by their seniors. in hall the students were not allowed to wear hats, though caps were permitted, nor were they to appear booted or spurred or carrying swords. for the first two years, they would read and talk much of the law, and were called clerks commoners. after two years they became mootmen or inner barristers. in five or six years they might be selected to be called to the bar as utter barristers, whose number was fixed. there was no formal examination. the utter barrister spent at least three more years performing exercises and assisting in directing the studies of the younger men. after this time, he could plead in the general courts at westminster, but usually carried on law work in the offices of other men and prepared cases for them. participating in moots (practice courts) was an important part of their education. lectures on statutes and their histories were given by readers. physicians were licensed by universities, by the local bishop, or in london, by the college of physicians and surgeons. most were university graduates, and because of the expense of the education, from well-to-do families. for the b.a., they emphasized greek. for the m.a., they studied the works of greek physicians galen and hippocrates, roman physician claudius, and perhaps some medieval authorities. after the m.a., they listened to lectures by the regius professor of medicine and saw a few dissections. three years of study gave them a m.b., and four more years beyond this the m.d. degree. a physician's examination of a patient cost s. the physician asked about his symptoms and feelings of pain, looked at his eyes, looked at his body for spots indicative of certain diseases, guessed whether he had a fever, felt his pulse, and examined his urine and stool. there were no laboratory tests. smallpox was quickly recognized. wrapping red cloth around the person and covering the windows with red cloth being promoted healing without scarring. gout was frequent. syphilis was common in london and other large centers, especially in court circles. it was ameliorated by mercury. an imbalance of the four humors: blood, phlegm, choler, bile was redressed by bloodletting, searing, draining, and/or purging. heart trouble was not easily diagnosed and cancer was not recognized as a life-threatening disease. childbirth was attended by physicians if the patient was well-to-do or the case was serious. otherwise women were attended only by midwives. they often died in childbirth, many in their twenties. a visit by a physician cost s. d. melancholia, which made one always fearful and full of dread, and mania, which made one think he could do supernatural things, were considered to be types of madness different from infirmities of the body. despite a belief held by some that anatomical investigation of the human body was a sin against the holy ghost, physicians were allowed to dissect corpses. so there were anatomy textbooks and anatomy was related to surgery. barber-surgeons extracted teeth and performed surgery. the white and red striped barber pole initially indicated a place of surgery; the red represented blood and the white bandages. the theory of nutrition was still based on the four humors and deficiency diseases were not understood as such. physician william harvey, son of a yeoman, discovered the circulation of the blood from heart to lungs to heart to body about . he had studied anatomy at padua on the continent and received an m.d. there and later at cambridge. then he accepted a position at the hospital of st. bartholomew to treat the poor who came there at least once a week for a year. he agreed to give the poor full benefit of his knowledge, to prescribe only such medicines as should do the poor good without regard to the pecuniary interest of the apothecary accompanying him, to take no reward from patients, and to render account for any negligence on his part. he also dissected animals. one day he noted when stroking downward on the back of one hand with the finger of the other, that a vein seemed to disappear, but that it reappeared when he released his finger. he surmised that there was a valve preventing the blood's immediate return to the vein. then he ascertained that the heart was a pump that caused pulses, which had been thought to be caused by throbbing of the veins. he tied the arteries and found that the arterial blood flowed away from the heart. he tied the veins and found that venal blood flowed into the heart. he found that the blood flowed from the lungs to the left side of the heart, and from thence was pumped out to the body. blood also flowed from the body to the right side of the heart, from which it was pumped to the lungs. the two contractions closely followed one another, rather than occurring at the same time. the valves in the veins prevented backflow. it was now clear why all the blood could be drained away by a single opening in a vein. it was also clear why a tight ligature, which blocked the arteries, made a limb bloodless and pale and why a looser ligature, which pressed only on the veins, made a limb swell turgid with blood. multiplying an estimate of the amount of blood per beat with the number of beats, he concluded that the amount of blood did not change as it circulated. he concluded that the only purpose of the heart was to circulate the blood. this diminished the religious concept that the heart was the seat of the soul and that blood had a spiritual significance and was sacred. the physicians turned surgery over to the surgeons, who received a charter in by which barbers were excluded from all surgical work except bloodletting and the drawing of teeth. surgeons dealt with skin disease, ulcers, hernia, bladder stones, and broken bones, which they had some skill in setting. they performed amputations, which were without antiseptics or anesthesia. internal operations usually resulted in death. caesarian section was attempted, but did not save the life of the mother. apprenticeship was the route to becoming a surgeon. a college of surgeons was founded. students learned anatomy, for which they received the corpses of four executed felons a year. the apothecaries and grocers received a charter in , but in , the apothecaries were given the sole right to purchase and sell potions, and to search the shops of grocers and stop the sale by them of any potions. in london, the apothecaries were looked over by the college of physicians to see that they were not selling evil potions or poisons. in was the first pharmacy book. there were three hospitals in london, two for the poor, and bedlam [bethlehem] hospital for the insane. others were treated at home or in the physician's home. theaters were shut down in times of plague to prevent spread of disease there. towndwellers who could afford it left to live in the country. shakespeare wrote most of his plays in this period. most popular reading was still bibles, prayer books, psalm books, and devotional works. also popular were almanacs, which started with a single sheet of paper. an almanac usually had a calendar; information on fairs, roads, and posts; farming hints; popularized scientific knowledge; historical information; sensational news; astrological predictions; and later, social, political, and religious comment. many households had an almanac. books tried to reconcile religion and science as well as religion and passion or sensuality. walter ralegh's "history of the world", written while he was in prison, was popular. ben johnson wrote poetry and satiric comedies. gentlemen read books of manners such as james cleland's "institution of a young noble man" ( ). in , the first regular weekly newspaper was started. although there was a large advance in the quality of boys' education and in literacy, the great majority of the people were unable to read fluently. since writing was taught after one could read fluently, literacy was indicated by the ability to sign one's name. almost all gentlemen and professional men were literate. about half the yeomen and tradesmen and craftsmen were. only about % of husbandmen, laborers, servants, and women were literate. the elizabethan love of madrigal playing gradually gave way to a taste for instrumental music, including organs and flutes. the violin was introduced and popular with all classes. ballads were sung, such as "barbary allen", about a young man who died for love of her, after which she died of sorrow. when they were buried next to each other, a rose from his grave grew around a briar from her grave. the ballad "geordie" relates a story of a man hanged for stealing and selling sixteen of the king's royal deer. the ballad "matty groves" is about a great lord's fair young bride seducing a lad, who was then killed by the lord. in the ballad "henry martin", the youngest man of three brothers is chosen by lot to turn pirate to support his brothers. when his pirate ship tries to take a merchant ship, there is sea fight in which the merchant ship sinks and her men drown. the ballad "the trees they do grow high" tells of an arranged marriage between a year old woman and the year old son of a great lord. she tied blue ribbons on his head when he went to college to let the maidens know that he was married. but he died at age , after having sired a son. may day was a holiday with dancing around a maypole and people dressed up as characters such as queen of the may, robin hood, little john, friar tuck, maid marion, the fool, and the piper. new year's day was changed to january st. golf was played in scotland, and james introduced it into england. james i was the last monarch to engage in falconry. francis bacon wrote the "advancement of learning" and "novum organum" (new learning) in which he encouraged the use of the inductive method to find out scientific truths and also truths in general, that is reasoning from a sample to the whole. according to him, the only way to arrive at the truth was to observe and determine the correlations of facts. he advocated a process of elimination of hypothesized ideas. first, experiments were made, then general conclusions were drawn from them, and then these generalizations were tested in further experiments. his "new learning" showed the way out of the scholastic method and reverence for dogma into the experimental method. he wrote "natural and experimental history". he studied the effect of cold in preventing animal putrefaction. by this time, what was known about mathematics included fractional exponents, trigonometry in terms of arcs of angles, long division, square root symbol, decimal fractions, methods for solving cubic equations, trigonometry in terms of ratios of sides of a right triangle, equal sign, plus and minus signs, and a consistent theory of imaginary numbers. john napier, a large calvinist landholder in scotland who had built his own castle, did mathematics in his older years. he explored imaginary numbers, which involve square roots of negative numbers. by , he had started and developed the theory of logarithms: the relationships among positive and negative exponents of numbers. this simplified calculations because the multiplication and division of numbers with a common base could be done by addition and subtraction of their exponents. his table of logarithms, which took him twenty years to compile, was used in trigonometry, navigation, and astronomy. it reduced the enormous labor involved in trigonometric calculations. in , willliam oughtred invented the slide rule for calculations. galileo galilei was a professor of mathematics at the university of padua in italy and was later a protege of the powerful medici family. he pioneered the scientific method of theory building by observation of phenomena instead of resort to sources such as aristotle. he conducted experiments, e.g. throwing objects off the tower of pisa in to show that all, whether light or heavy, fall at the same rate. this disproved the widely held belief that heavier objects fall faster than light objects. he reasoned by induction from experiments that the force of gravity has the same effect on all objects regardless of their size or weight. his law stated that the speed of their descent increases uniformly with the time of the fall, i.e. speed [velocity] = gravity's acceleration multiplied by time. this was a pioneering mathematization of a physical phenomenon. from his observation that an object sliding along a plane travels increasingly farther and slows down at a decreasing rate as the surfaces become smoother and more lubricated, he opined that the natural state of a body in motion is to stay in motion, and that it is slowed down by a resistant force, which he called "friction". he conceived of the air giving a frictional force to an object moving through the air. from his experiments showing that a rolling ball rolls up a plane farther the lesser the slope of the plane, he intuited that if the plane were horizontal, the ball would never stop rolling except for friction. he opined that bodies that are at rest stay at rest and bodies that are in motion stay in uniform motion ("inertia"), unless and until acted upon by some force. this was a radical departure from aristotle's theory that any horizontal motion requires a prime mover. galileo drew a graph of distance versus time for the rolling ball, which indicated that the distance traveled was proportional to the square of the time elapsed. he put his ideas of vertical and horizontal motion together to explain the movement of projectiles, which travel horizontally, but also fall downward vertically. he realized that the movement of a projectile involved a horizontal impetus of projection and a vertical force of gravity, each being independent of the other, but acting simultaneously, instead of sequentially. he demonstrated that a projectile follows the path of a parabola, instead of a straight line, and that it descends a vertical distance which is proportional to -the square of the time taken to fall. that is, a thrown object will strike the ground in the same amount of time as an object simply dropped from the same height. this suggested that gravity was a constant force. galilieo described mathematically the motion of a lever such as a seesaw in which the weight on one side multiplied by its distance from the fulcrum is equal to the weight on the other side multiplied by its distance from the fulcrum. galileo determined that a pendulum, such as a hanging lamp, swings back and forth in equal intervals of time. he measured this time with water running through a tube; the weight of the water was proportional to the time elapsed. also, pendulums with equal cord length swing at the same rate, regardless of the substance, weight, or shape of the material at the end. so a pendulum could be a mechanical clock. - galileo knew that ice floated on water because ice is less dense and therefore lighter than water. it had formerly been thought that ice was heavier than water, but floated on water because of its shape, especially broad, flat-bottomed pieces of ice. the telescope was invented in . the next year, galileo built a greatly improved telescope to observe bodies in the skies. he observed that the spots on the moon had shifting illumination and that the moon's perimeter had a jagged outline. from this he deduced that the surface of the moon had mountains, valleys, and craters much like the earth, and was illuminated by reflected light. he noticed that the planet jupiter had moons orbiting it in a manner similar to the orbit of the earth's moon. he observed that when the planet venus was very small it had a round shape and when it was very large, and therefore nearer the earth, it had a crescent shape. also, venus progressed through periodic phases of increasingly wide crescent shapes in a manner similar to the phases of crescent shapes of the earth's moon. he realized that these features of venus could be explained only if venus revolved around the sun, rather than around the earth. this finding added credence to the copernican theory that the earth and all planets revolve around the sun. but church doctrine that the sun revolved around the earth was supported by the biblical story of god making the sun stand still to give additional sunlight on a certain day so a certain task could be completed that day. galileo argued against a literal interpretation of the bible, so he was denounced by the church. his finding of sunspots on the sun conflicted with church doctrine that the celestial bodies such as the sun were perfect and unblemished. his observation that certain sun spots were on certain locations of the sun, but changed location over time, suggested that the sun might be rotating. he observed that when air was withdrawn by a suction pump from the top of a long glass tube whose lower open end was submerged in a pan of water, the water rose to a height of feet and no higher. this result indicated that the evacuated space above the water was a vacuum: an empty space. the notion of a vacuum, a space where there is nothing or void, was difficult for philosophers to accept. they believed that nature abhored a vacuum and would prevent it. about , galileo invented the first thermometer by heating air at the top of a tube whose open end was in a bowl of water; as the top end cooled, the air contracted and water rose part way up the tube; the column of water rose or fell with every change of temperature. galileo invented the compound refracting microscope, which used more than one lens, about . galileo's book on the arguments for and against the copernican theory was unexpectedly popular when published in . the general public was so persuaded by the arguments that the earth revolved around the sun that papal authority felt threatened. so galileo was tried and convicted of heresy and sentenced to house arrest as an example to others who might question church doctrine, even though the seventy year old galileo recanted and some of the inquisition judges who convicted him believed the copernican theory and their decision did not assert the contrary. johannes kepler was a mathematician from germany who made his living as an astrologer. he was in contact with galileo by letter, as most scientists of europe were with each other. kepler was fascinated with perfect geometric shapes, which he tried to relate to celestial phenomenon. he discerned that the orbit of mars was not perfectly circular. he knew that the apparent path of the sun with respect to the constellation of fixed stars differed in speed at different times of the year. he opined that this showed that the speed of the earth revolving around the sun varied according to the time of year. then he measured the angles between the earth and the sun and the earth and mars as they changed through the martian year. he noted when the earth, mars, and the sun were on the same straight line. then he deduced the earth's true orbit, and from this the true orbits of the other planets. then by trial and error, he attempted to match this empirical data with regular mathematically defined shapes, until he discovered in that these paths were elliptical. also, the planets each move faster when they are nearer the sun and more slowly when they are farther from the sun so that in equal time intervals, a line from the planet to the sun will sweep out equal areas. this observation led him to opine that there is a force between the sun and each planet, and that this force is the same as that which keeps the moon in its orbit around the earth. thirdly, in , he found that the square of the time for each planet's orbit about the sun is proportional to the cube of that planet's mean distance from the sun, so that the farther planets orbit at a slower speed. he connected the earth's tides with the gravitational pull of the moon. kepler also confirmed that the paths of comets were governed by a law and were farther from the earth than the moon. this contradicted the church's explanation that what lies within the moon's orbit pertains to the earth and is essentially transitory and evil, while what lies beyond belongs to the heavens and is permanent and pure. renee descartes, a french mathematician, scientist, and philosopher, had a revelation that the structure of the universe was mathematical and that nature obeyed mathematical rules. in , he invented analytic [cartesian] geometry, in which lines and geometric shapes can be described by algebraic equations and vice-versa. all conic sections: circles, ellipses, parabolas, and hyperbolas, could be represented by equations with two unknowns, or variables, on a coordinate system in which each point is represented by a pair of numbers representing distances from the two axis lines. an algebraic equation with two unknowns, could be represented as a shape thereon. an algebraic equation with one unknown represented a straight line thereon. the points of intersection geometrically were equivalent to the common solution of the associated algebraic equations. he started the convention of representing unknown quantities by x, y, and z and known quantities by a, b, and c. so, for instance, a circle with center at point , and a radius of was represented by the equation: (x- ) squared + (y- ) squared = . he pioneered the standard exponential notation for cubes and higher powers of numbers. analytic geometry aided in making good lenses for eyeglasses. the glass was first manufactured with attention to quality. then, after it cooled and solidified, the clearest pieces were picked and their surfaces ground into the proper curvature. descartes formulated the law of refraction of light, which deduces the angle of refraction [deflection] of light through a medium from the lights' angle of incidence and the speed of light in each media in which the light passes. this explained why a rainbow is circular. in , he described the universe in terms of matter and motion and suggested that there were universal laws and an evolutionary explanation for such. he opined that all effects in nature could be explained by spatial extension and motion laws that ) each part of matter retains the shape, size, motion, or rest unless collision with another part occurs; ) one part of matter can only gain as much motion through collision as is lost by the part colliding with it; and ) motion tends to be in a straight line. descartes feared persecution by the church because his ideas did not correlate with the biblical notion of god's creation of the universe in the order of light, then sky and oceans and dry land, then plants, then seasons and the sun and moon and stars, then fish and birds, then all animals, and finally man. descartes believed in a good and perfect god, and thought of the world as divided into matter and spirit. the human mind was spirit and could exist outside the human body. without the mind, human body was a machine. the human mind had knowledge without sense experience, e.g. the truths of mathematics and physics. ideas and imagination were innate. his observation that sensory appearances are often misleading, such as in dreams or hallucinations, led him to the conclusion that he could only conclude that: "i think, therefore i am." he rejected the doctrine that things had a proper behavior according to their natures, e.g. the nature of acorns is to develop into oak trees. as an example of erroneous forming of conceptions of substance with our senses alone, he pointed out that honeycomb has a certain taste, scent, and texture, but if exposed to fire, it loses all these forms and assumes others. he considered to be erroneous the belief that there are no bodies around us except those perceivable by our senses. he was a strong proponent of the deductive method of finding truths, e.g. arguing logically from a very few self- evident principles, known by intuition, to determine the nature of the universe. christian huygens, a dutch physicist, used the melting and the boiling point of water as fixed points in a scale of measurements, which first gave definiteness to thermometric tests. there was much mining of coal, tin, copper, lead, and iron in the s. coal was transported from the coal pits down to the rivers to be loaded onto ships on coal wagons riding on wooden rails. the full coal cars could then be sent down by gravity and the empty wagons pulled up by horses. sheet metal, e.g. lead, was used for roofing. coal was much used for heating houses, and for laundry, cooking, and industrial use, such as extraction of salt, soap boilers, and manufacture of glass, bricks and tiles for buildings, anchors for ships, and tobacco pipes. it was used in the trades: bakers, confectioners, brewers, dyers, sugar refiners, coopers, starch makers, copper workers, alum makers, and iron workers. in the haberdashers, who sold imported felt for hats, got a charter of incorporation. a tapestry factory was established in . flax-working machines came into existence. the royal postal system carried private as well as royal letters, to increase income to the crown. postmasters got regular pay for handling without charge the mail of letters that came from or went to the letter office in london. the postmaster kept horses which he let, with horn and guide, to persons riding "in post" at d. per mile. the post was to travel mph in summer and mph in winter and sound his horn four times in every mile or whenever he met travelers. wool and animals for butchering were sold in london with the sellers' agent in london taking the proceeds and paying out to their order, the origin of check writing. scriveners drew up legal documents, arranged mortgages, handled property transactions, and put borrowers in touch with lenders. they and the goldsmiths and merchants developed promissory notes, checks, and private paper money. the influx of silver from the new world was a major factor in the second great inflation in england and in the devaluation of money to about one third of what it had been. also contributing to the inflation was an outracing of demand over supply, and a debasement of the coinage. this inflation benefited tenants to the detriment of their lords because their rents could not be adjusted upward. there was an increase in bankruptcies. houses of correction were built. as attorney general, edward coke was impassioned and melodramatic. he once described the parts of the penalty of treason as follows: being drawn to the place of execution reflected the person's not being worthy any more to tread upon the face of the earth; being drawn backward at a horse tail was due to his retrograde nature; being drawn head downward on the ground indicated that he was unfit to breathe the common air; being hanged by the neck between heaven and earth indicated that he was unworthy of either; being cut down alive and his privy parts cut off and burnt before his face indicated he was unworthily begotten and unfit to leave any generation after him; having his bowels and inners taken out and burnt indicated he had inwardly conceived and harbored such horrible treason; his head cut off, which had imagined the treason, and his body to be quartered and the quarters set up to the view and detestation of men a prey for the fowls of the air. coke was subsequently elevated to the position of chief of common pleas and then to chief of the king's bench. but there coke propounded a doctrine of the supremacy of the law over the king as well as over parliament. for instance, coke would not agree to stay any case in which the king had a concern in power or profit, to consult with him. but the other eleven justices did agree. since james i believed in the divine right of kings, he therefore dismissed coke from his position as chief justice of the king's bench. james even believed that he could suspend any law for reasons known only to him and issue proclamations that were not limited to the reinforcement of old laws, but made new offenses with punishment of fine and/or imprisonment. the old writ of habeas corpus [produce the body] had been just to bring to court those persons needed for proceedings, but coke in had cited the writ with a new meaning "to have the body together with the cause of detention". coke then became a member of parliament and led the commons, where he exalted the authority of parliament vis a vis the king; that is, the king could not make any changes in law, religion, or taxation without consent of parliament. james arrested coke and two other members of the commons and put its leader john pym under house arrest for their outspoken opinions against the king's intended alliance with catholic spain and intended taking of a spanish wife. because of the deadlock that developed between the king and parliament, certain matters could not be addressed by legislation and were left to be decided judicially. this made judicial review of disputes important. james vastly increased the number of peerages, selling many, for example for , pounds. since there was a tacit understanding that members of parliament would not accept remuneration, this restricted eligibility for membership to the rich. the house of commons was composed mostly of attorneys, merchants from the large towns, and country gentlemen. the gentry members had pounds [ , s] annual income from land and the burgess members had pounds [ , s.]. there were two knights from every county, elected by men holding at least forty-shilling freeholds; four representatives from london, and one or two from every other borough, generally elected by the top business families'; and a representative from each of the two universities. for speaker, they always chose someone suggested to them by the crown. he decided who would talk and could hasten or delay bills, usually for the benefit of the crown. the clerk, a lifetime appointment of the crown, wrote out the bills and their amendments and kept track of proceedings. many in the commons were puritan in sympathy. in , the house of commons developed a committee system to avoid being presided over by the royally designated speaker. a committee could consist of all the members of the house of commons with an elected chairman. an increasing number of issues were discussed in committee before coming to the commons and the commons came to ratify readily what had been done in committee. by , there had developed in the house of commons an opposition to feudal tenures, purveyance, wardships, and impositions (special import and export duties on aliens set by the king without the consent of parliament that were supposed to be for the purpose of regulating trade instead of for revenue). there was also a call for free speech and an end to the king's habit at the end of parliament of imprisoning for a time those who had been too outspoken. the commons also asserted itself into foreign affairs by expressing an opinion against a treaty proposed by the king on which war could ensue. the treaty was abandoned. in london, organized groups such as the apothecaries, the skinners, and the grocers, were circulating printed statements of their cases to members of committees of the house of commons rather than just seeking out a friendly privy council member. in , the protests made to committeemen about monopolies sold by james frightened him into canceling many of them. he had made many grants against competition in violation of law. the right of the commons to expel a member was asserted by the expulsion of a monopolist. by , the speeches of prominent members and the course of proceedings were copied by stationers and sold in a weekly news report. the king's privy council dealt constantly with foreign affairs, and also with the great companies, and problems arising such as gold leaving the country, the dutch ships increased efficiency in transporting goods, the declining market for english cloth, strikes in the mining industry, decaying harbor works, the quality of food and drink, the wrongs done to the poor, and above all, the general peace and order. they formed commissions to study situations and sent orders to justices of the peace on methods to address certain problems and to sheriffs to carry out certain acts. about , a group within the privy council began to concentrate on foreign affairs, especially "cabinet counsels", that is, with secret matters. james sold high offices of state to supplement his income. his income from customs had increased so much that it was now three times that from crown lands. the sheriff looked after crown lands and revenues in his county. he gathered the rents, the annuities, the stray animals, the deodands, the fees due to the king, the goods of felons and traitors. he was still a means of communication between the privy council and the county. he announced new statutes of parliament and proclamations by the king at the county courts and in the markets. he used posse comitatus to disperse riots. he was the functionary of the assize court, impaneling its juries, bringing accused men before it, and carrying out its penalties. he carried out elections of members of the house of commons. there were two high constables for each hundred. they were chosen by the justices of the peace at quarter sessions, and were usually small gentry or well-to-do yeomen. they were the intermediaries between the justices and the petty constables. the petty constable was the executive official of the village. he was usually elected by the suitors to the leet court of the manor for a year. he might be a farmer, an artisan, a carpenter, a shoemaker, or many times a tradesman, a butcher, or baker. he often visited the alehouse to learn of any trouble in the making. he would intervene in quarrels and riots and tell the participants to desist in the king's name. if they didn't, he could call on all bystanders to help him "force a quiet". he had to lead the rioters and causers of injuries to others, hold them there until he could bring him before the nearest justice. he would inform the justice of plots to trespass or forcibly enter land to take possession. he saw to it that no new cottages were built in the villages without due authority. he supervised markets and inns. he reported lapses of care for apprentices by their masters to the justice. at harvest time, he called upon all able bodied persons to assist and punished those who didn't respond by putting them in the stocks or fining them forty shillings. he arrested and whipped vagrants and sturdy rogues and sent them back to their place of birth through constables on the way. if a horse was stolen, he raised the hue and cry to all neighboring constables. he made inquiry into the paternity of the coming child of an unmarried pregnant girl to make him take responsibility for the child and pay her d. a week lest it fall into the responsibility of the village. in a town, he might have watchmen to help him see that the streets were peaceful at night. the constable assisted the justice of the peace, the high constable, and the sheriff. he pressed men into military service. he collected taxes for the sheriff and collected the money for purveyance, the money for the poor, maimed soldiers, and various kinds of prisoners, which the parish had to pay. he was often the spokesman for the village in village concerns, such as too many alehouses, brought to the attention of justices at quarter sessions. the constable and churchwardens together collected money for the parish, looked after the needy, and kept in close touch with the overseers of the poor, who cared for the sick and old, found work for the idle, took charge of bastards, apprenticed orphan children, and provided supplies for the workhouse. in the east india company was given a monopoly by the crown that was indefinitely long as long as it was profitable to the realm in the king's opinion. interlopers were to forfeit their ships and goods, one-half to the company and one-half to the crown. monopoly status made the company competitive with the dutch and portuguese monopoly companies. the crown received a gift or a loan from the company in return. at first, the company raised capital for each separate voyage. but voyages tried to undercut each other and rival factions squabbled over cargoes. so the company then raised a "terminable joint-stock" for a period of years. the first of these was issued in - and financed a fleet every year for four years. subscriptions were called in by yearly installments and dividends paid out yearly. the voyage of brought shareholders a profit equivalent to about % a year. by , the company operated thirty to forty "tall ships", many built in its own dockyards. these dockyards were so technologically advanced that they were daily viewed by visitors and ambassadors. here, besides wet and dry docks, there were timber yards, a foundry and cordage works for supplying the ships' hardware and a bakery and saltings for their provisioning. more than craftsmen were directly employed in the yard. overall the company was one of london' largest employers. in , the muscovy company, hired henry hudson to find a northwest passage through north america to the pacific ocean. in , the first charter of the virginia company was issued for trading purposes. it gave the settlers "all liberties, franchises, and immunities" they had in england. to oversee this colony, the crown appointed a council. virginia established the episcopal church by law. virginia became a joint-stock company in . but exports were few (timber, soap ashes, pitch, tar, and dyes) for several years, and then tobacco emerged as a source of profit. king james imposed a heavy duties on imported tobacco because it corrupted man's breath with a stinking smoke. life was difficult for puritan separatists, who wanted to separate from the established church. they were imprisoned and their houses were watched day and night for illegal meetings. in , after trying holland and when there was a depression in england, a few puritan separatists, along with other pilgrims, left for virginia in the mayflower, but landed in new england and founded plymouth colony. they were led by william bradford and william brewster, their spiritual leader. they planted fields and made friends with the indians. in , they secured a patent to the merchants and planters together for a voluntary joint-stock company in new england. later, it became the self-governing massachusetts bay colony. the canons of the church of provided for excommunication for anyone who propounded that the king did not have the same authority in ecclesiastical matters as the godly kings among the jews and christian emperors in the primitive church, that the church of england was not a true and apostolic church, that worship according the book of common prayer and administration of sacraments was corrupt or superstitious, or that other methods of the church were wicked, unchristian, or superstitious. church sanctuary was abolished for those accused of criminal offenses because it had been abused by thieves paying their rent by thieving at night. it remained available to those accused of civil offenses. about % of the population was catholic, although it was against the law to practice this religion. indeed it long been the practice to sequester their lands, punish them for going to mass, fine them for not attending the established church, banish their priests, and imprison those who aided priests. there was a catholic plot in to blow up parliament and the king with gunpowder and to restore catholicism as the state religion with a catholic king. it was discovered and the conspirators were executed. then there was a crackdown on catholics, with houses being searched for hiding places for priests. also, legislation was passed barring catholics from many offices. the law churchwardens of every parish shall oversee the poor in their parish. they shall, with consent of the justices of the peace, set to work children whose parents cannot maintain them and also set to work married or unmarried persons who have no trade and no means to maintain themselves. churchwardens shall tax every inhabitant, including parson and vicar and every occupier of land and houses, as they shall think fit. there will be a convenient stock of flax, hemp, wool, thread, iron and other necessary ware and stuff to set the poor on work. there will be competent sums of money for the relief of the lame, impotent, old, blind, and others not able to work, and also for the putting out of children to be apprentices. child apprentices may be bound until years of age or until time of marriage. they shall account to the justices of the peace for all money received and paid. the penalty for absence or neglect is s. if any parish cannot raise sufficient funds, the justices of the peace may tax other nearby parishes to pay, and then the hundred, and then the county. grandparents, parents, and children of every poor, old, blind, lame, or impotent person not able to work, being of sufficient ability, shall at their own charge, relieve and maintain every such poor person in that manner and according to that rate as justices of the peace of that county determine, or else forfeit s. per month. two justices of the peace may commit to gaol or house of correction persons refusing to work and disobedient churchwardens and overseers. the overseers may, with the consent of the lord of the manor, build houses on common or waste land for the poor at the expense of the parish, in which they may place more than one family in each house. every parish shall pay weekly - d. toward the relief of sick, hurt, and maimed soldiers and mariners. counties with more than fifty parishes need pay only - d. the county treasurer shall keep registers and accounts. soldiers begging shall lose their pension and shall be adjudged common rogues or vagabonds subject to imprisonment and punishment. a seminal patent-protection law was passed in . it stated that all monopolies to any person or persons, bodies politic or corporate for the sole buying, selling, making, working, or using of anything within the realm are void. this does not include london or towns. parties aggrieved by such may recover treble damages in the superior courts, with double costs. excepted are existing patents, for years or less, for new inventions and for future patents for years or less. excepted also are patents for printing or making saltpeter, gunpowder, shot or ordinance, etc.; patents concerning allum mines or newcastle coal or glass making or export of calves' skins or making smalts [deep-blue pigment or glass] or melting iron ore; grants of office; and licenses for taverns. persons stealing crops from lands or fruit from trees shall be whipped. every person shall receive the holy communion in church at least once a year or else forfeit pounds for the first year and pounds for the second year, and threescore pounds for every year after until he takes the said sacrament. every person convicted of drunkenness shall be penalized s. or else placed in the stocks for six hours, because the loathsome and odious sin of drunkenness has grown into common use lately and it is the root of many other sins, such as bloodshed, stabbings, murder, swearing, fornication, and adultery, and is detrimental to the arts and manual trades and diverse workmen, who become impoverished. offenders convicted a second time shall be bound with two sureties to the sum of s. lewd women, having bastards, chargeable to the parish, shall be committed to the house of correction to be punished and set to work for one year. mothers concealing the death of a bastard baby shall suffer as for murder, unless one witness proves the child was born dead. persons deserting their families shall be deemed incorrigible rogues and punished as such. persons such as sorters who purloin or embezzle wool or yarn delivered to them by clothiers and the receivers thereof, knowing the same, shall recompense the party grieved or else be whipped and set in the stocks. because benefit of clergy is not allowed to women convicted of felony by reason whereof many women suffer death for small causes, any woman convicted for the felonious taking of any money, goods or chattels greater than d. and less than s. other than burglary or robbery on the highway or from the person of any man or woman without their knowledge, shall be branded and marked in the hand upon the brawne of the left thumb with a "t" and imprisonment, whipping, stocking, or sending to the house of correction for a year or less. actors profaning god, jesus, or the holy ghost on stage are to be penalized s. in it was decided that it was not necessary to prove that witchcraft caused the death of a person for there to be punishment for the witchcraftery. all that was necessary now was the practice of witchcraft. the punishment was death by hanging. also, consulting or feeding an evil spirit was felony. sheriffs summoning defendants without a writ shall pay s. and damages to the defendant, and s. to the king. since administrators of goods of people dying intestate who fail to pay the creditors of the deceased often can't pay the debts from their own money, the people (who are not creditors) receiving the goods shall pay the creditors. no merchant may dress black rabbit skins, nor export them, unless dressed by skinners and bought from them because the skinners have been thus deprived of their livelihoods to their impoverishment throughout the realm. beer may be exported when malt is at s. per quarter because exporting beer instead of barley and malt will ( ) increase the export tax to the king, ( ) increase income for coopers and brewers, and ( ) provide more jobs in transporting beer, which is more voluminous, to the great comfort of the port towns. fish which are spawning and growing in harbors may not be taken by any net or weirs because this practice has hurt fishermen and the realm. no one shall sell beer or ale to an unlicensed alehousekeeper because abuses there have become intolerable. no person at least years of age may be naturalized or restored in blood after being attainted unless he takes the sacrament and the oath of supremacy [of the king over the church of england], and oath of allegiance [to the king]. money given by will for the apprenticeship of poor children shall be managed by incorporated towns and unincorporated parishes. masters receiving such apprentices shall become bound with sufficient sureties. houses of correction shall be built in every county. london may make a trench to bring water to the north part of the city and shall compensate the owners of lands by agreement with them of an amount or an amount determined by commissioners. all hospitals and abiding places for the poor, lame, maimed, and impotent persons or for houses of correction founded according to the statute of elizabeth shall be incorporated and have perpetual succession. only lands and hereditaments paying rents to the crown within the last sixty years shall be claimed by the crown; the title of all persons and corporation who have enjoyed uninterruptedly against the crown for the last sixty years are confirmed against the crown. no one may take more than % interest on loans because % has caused many, including gentry, merchant, farmer, and tradesman, to sell their land and forsake their trade to pay their debts. as attorney general, edward coke introduced the crime of "seditious libel" in a case before the star chamber in . these written slanders or libels were viewed as incitements to disorder and private vengeance. because the tendency to cause quarrels was the essence of the crime, the truth of the libel was not a defense, but might be an aggravation of criminality. edward coke, former chief justice of both the court of common pleas and court of the queen's bench, wrote his reports on court cases of all kinds through forty years and his institutes on the law, in which he explained and systematized the common law and which was suitable for students. this included a commentary and update of littleton, published in ; old and current statutes; a description of the criminal law; and lastly an explanation of the court system, the last two published in . coke declared that "a man's house is his castle". coke waged a long battle with his wife over her extensive lands and personal property and the selection of a husband for their daughter. in his institutes, he described the doctrine of coverture as "with respect to such part of the wife's personality as is not in her possession, as money owing or bequeathed to her, or accrued to her in case of intestacy, or contingent interests, these are a qualified gift by law to the husband, on condition that he reduce them into possession during the coverture, for if he happen to die, in the lifetime of his wife, without reducing such property into possession, she and not his representative will be entitled to it. his disposing of it to another is the same as reducing it into his own possession." he further states that "the interest of the husband in, and his authority over, the personal estate of the wife, is, however, considerably modified by equity, in some particular circumstances. a settlement made upon the wife in contemplation of marriage, and in consideration of her fortune, will entitle the representatives of the husband, though he die before his wife, to the whole of her goods and chattels, whether reduced into possession or not during the coverture. ... a settlement made after marriage will entitle the representative of the husband to such an estate in preference to the wife. ... a court of equity will not interfere with the husband's right to receive the income during the coverture, though the wife resist the application." no person convicted of catholicism may practice the common law as a counsellor, clerk, attorney, or solicitor, nor may practice civil law as advocate, or proctor, nor shall be justice, minister, clerk, or steward in any court, nor practice medicine, nor perform as apothecary, nor be officer in a town, in the army, or navy, or forfeit pounds as punishment. nor may they be administrators of estates, or have custody of any child as guardian. nor may they possess any armor, gunpowder, or arms. nor may anyone print or import popish books rosaries, or else forfeit s papists running a school must forfeit s. a day for such. anyone conveying a child beyond the seas to be educated in popery may not sue in the courts, may not hold any office, and shall forfeit pounds and all lands. but the child returning may have his family lands restored to him if he receives the sacrament of the lord's supper in the established church after reaching years of age. judicial procedure james i asserted an authority to determine the jurisdiction between the various courts. the court of the king's bench had the major part of the civil business of the courts. the star chamber court still was primarily directed against force and fraud and defended the common people from over-mighty lords and over-pliable justices of the peace, for instance by deterring enclosure. it also enforced monopolies. however, there was a growing tendency for king james, who sat on it, to abuse its power with high fines. for instance, a lord accused with foul language by a huntsman of following hounds of a chase too closely threatened to use his horse whip on the huntsman's master when the huntsman threatened to complain to his master. the lord was fined , pounds. james' council used torture to obtain information from accused felons about possible conspiracies against him. the ordinary administrative court of first instance is formed by the single justices of the peace, who issue orders regarding public safety, order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, and fire, and particularly begging and vagrancy as well as regulations of wages, servants, apprentices, and day laborers. for more important resolutions, the special sessions of the justices of the peace of a hundred for a court of intermediate instance and appointed overseers of the poor. all justices of the peace were present at the quarter sessions, which were held at least four times a year, and were primarily a court of appeal from penal sentences, but also make the county rate, appoint county treasurers and county prison and house of correction governors, regulate prices and wages, settle fees of county officials, grant licenses for powder mills, and register dissenting chapels. it heard appeals expressly allowed by statute. the central courts also heard appeals by writ of certiorari as to whether an administrative act was in accordance with existing law, whether the court is competent, and whether the administrative law has been rightly interpreted. this writ of certiorari ceased in the s. justices of the peace who have the power to give restitution of possession to tenants of any freehold estate of their lands or tenements which have been forcibly entered and withheld, shall have like power for tenants for term of years, tenants by copy of court roll, guardians by knight service, and tenants by elegit statute merchant and staple of lands or tenements [tenant-plaintiffs holding property to receive income therefrom for satisfaction of a debt of defendants]. the justices of the peace were chosen by the crown, usually by the chancellor. the qualifications were residence in the county, suitability of moral character, religious uniformity, and the possession of lands or tenements with twenty pounds a year. they were almost exclusively country gentlemen, except in the towns. in the corporate towns, the mayor, bailiff, recorder, and senior aldermen were ex officio [by virtue of the office] justices of the peace. their main duty was to keep the peace. if a justice heard of a riot in the making, he could compel individuals at the place to give bonds of "good-a-bearing" and cause a proclamation to be made in the king's name for them to disperse. two justices or more had the authority to arrest the rioters and send a record of it to the assizes and to the privy council. if the riot had taken place before their arrival, they could make an inquiry by a jury and certify the results to the king and his council. the justices had men brought before them on many kinds of charges, on their own summons, or on initiative of the petty constable. they tried to draw these men into confession by questioning. after indictment, a person had the choice of a petty jury trial or paying a fine. the justices of the peace could insist upon presentment juries or surveys of offenses by local officers, but, without the institution of policemen, not many crimes were prosecuted because victims were unwilling or could not afford to initiate judicial action. their unwillingness was partly due to the severity of penalties, e.g. death for the theft of over s. and whippings and fines for misdemeanors. further, the offender was frequently a neighbor with whom one would have to live. mediation by the local constable often took place. when there an outbreak of lawlessness in an area, a commission might be set up especially for that area to enforce the law. assault cases were common in courts of assize and courts of quarter sessions. the quarter sessions were those of a number of justices of the peace held for a couple of days four times a year for the more important cases in the jurisdiction of the justices of the peace. assault was violence or threat of imminent violence. fines were graduated according to the means of the offender, who was usually bound over to keep the peace. most involved offenders and victims who were neighbors and included people of substantial standing in the village. also, a sizable minority were directed against local officers such as constables, bailiffs, or tax- collectors. three-fourths of all assize indictments and many quarter-sessions indictments were for various types of theft, including petty larceny, grand larceny, housebreaking, burglary, sheep stealing, and robbery. these offenses were mostly opportunistic rather than planned, except for london's underworld of professional thieves and the cutpurses of country markets and highway robbers on lonely roads. there were substantial peaks in theft in periods of harvest failure and industrial depression, especially by vagrants. but most of the poor never stole. the justices of the peace usually deferred to the learned justices of assize for cases of felony, murder, rape, highway robbery, and witchcraft. most homicides were the result of an impassioned argument leading to blows inflicted by nearby commonplace items picked up and used as weapons. only % of homicides were within the family. men were still declared outlaw if they failed to come to court after repeated summons. the lord keeper regularly advised the assize justices, before each circuit departure, to relieve the poor, supply the markets, maintain the roads (which were frequently impassable in winter for wagons or coaches), enforce church attendance, suppress superfluous and disorderly alehouses, and put down riots, robberies, and vagrancy, and in times of dearth, to suppress speculation in foodstuffs, prevent famine, and preserve order. in fact, the justices were most attentive to offenses which affected them as rate payers for the poor. these were offenses against cottaging laws (e.g. erection of cottages which lacked the statutory four acres of land), harboring of "inmates", disputes of settlement of paupers, bastardy, vagrancy, church nonattendance, and above all, disorderly alehouses. alehousing had been a well- established means of poor employment since the s, so it was hard to enforce licensing laws. further, alehouses were the centers of social life for the common people; both women and men met their friends there. if an attorney or solicitor delays his client's suits to work his own gain or over charges his client, the client can recover his costs and treble damages and the attorney and solicitor shall be disbarred. none may be admitted to any court of the king but such as have been brought up in the same court or is otherwise well-practiced in soliciting of causes and has been found by their dealings to be skillful and honest. an attorney who allows another to use his name shall forfeit shillings and be disbarred. offenders shall pay the charge of their own conveyance to gaol or the sum shall be levied by sale of their goods so that the king's subjects will no longer be burdened thereby. plaintiffs' costs shall be paid by the defendants only where there is a judgment against the defendant in all actions in which the plaintiff is entitled to costs on judgment for him, to discourage frivolous and unjust suits. defendants may not petition to remove a case to the westminster courts after a jury is selected because such has resulted in unnecessary expense to plaintiffs and delay for defendants in which they suborn perjury by obtaining witnesses to perjure themselves. in , by the writ of quo warranto, a government office or official could be made to explain by what right he performed certain acts. the court of high commission heard mostly matrimonial cases, but also moral offenses both of clergy and laity, and simony [buying or selling ecclesiastical preferment, ecclesiastical pardons, or other things regarded as sacred or spirtual], plurality, drunkenness, and other clerical irregularities. by , chancery could order injunctions to stop activities. in slade's case of , the court of the queen's bench held that assumpsit may be brought in place of the action of debt. so assumpsit supplants debt for recovering liquidated sums and is then called "indebitatus assumpsit". the trial of sir walter ralegh in began a call by people for a right to confront and question one's accusers. before trial, privy counselors who in theory sat as impartial justices, cross-examined ralegh in prison. with a carefully selected jury present, the trial began with reading of the indictment, which ralegh had not yet seen. he was charged with treason in plotting with catholic spain to put arabella stuart on the throne. arabella was to write to spain promising peace, toleration of catholics in england, and direction by spain in her marriage choice. he pled not guilty and took no exception to any jurors, stating that he knew them all to be honest men. next, attorney general edward coke, his enemy and rival, and he engaged in a debate about who was right, with coke outright bullying him. coke then produced a signed confession by lord cobham that implicated him in the alleged conspiracy and accepting , crowns for his part. ralegh was given permission to speak. he said that cobham had retracted his confession. he ridiculed the idea that he would betray england to spain for gold after fighting against spain, including risking his life three times, and spending , pounds for the defeat of spain. he pointed to a treatise he had written to the king on the present state of spain and reasons against peace. then there was a discussion on the validity of cobham's confession. cecil gave an oration of ralegh. coke gave a speech. ralegh asked to have his accuser brought before him face to face. he cited law that two witnesses were necessary for a conviction for treason. chief justice popham replied that only one witness was necessary under common law, which applied to his case, and that the trial was properly conducted by examination of the defendant. coke added that it would be improper to call cobham because he was a party. then coke surprised ralegh with a letter from cobham stating that ralegh had asked cobham to procure him an annual pension of pounds from spain for disclosing intelligence. ralegh acknowledged that a pension was offered, but denied that he had ever intended to accept it. he admitted that it was a fault not to inform authorities of this offer. the jury deliberated for fifteen minutes and returned with a verdict of guilty. the chief justice delivered the sentence for treason: drawing, hanging, disemboweling, beheading, and quartering. the whole trial was not so much to access guilt, but to show the general public that the person was guilty. church courts were revived after a period of disuse. they could annul an unconsummated or legally invalid marriage (e.g. consanguinity, impotence, a witnessed precontract to marry) and order judicial separations in case of adultery, cruelty, or apostasy. annuled marriages made a person's children illegitimate. an action at common law for "criminal conversation" [adultery] with the plaintiff's spouse or for assault and battery could result in an order for separation. but only a private statute of parliament could grant a divorce, which allowed remarriage. it was granted in only a few cases and only to the very wealthy. church officials spied upon people's conduct to draw them into their courts and gain more money from the profits of justice. in , edward coke, chief justice of the court of common pleas, decided that the statute giving the royal college of physicians power to imprison and fine those practicing without a license was invalid and unenforceable because it gave the college half of each fine awarded, which was a conflict of interest with its role as an adjudicator. coke said that a maxim of the common law was that no man ought to be judge in his own cause. by this decision, he asserted a court supremacy over parliament with respect to the validity of statutes. he opined that the courts should not only be independent of the crown, but should act as arbiter of the constitution to decide all disputed questions. in his words, "when an act of parliament is against common right and reason, the common law will control it and adjudge such act to be void." justices still explained and in some degree interpreted legislative acts of parliament as they had since the s, but their right to do so was coming into question and was slowly lost. female scolds were still dunked into water as punishment. only barristers, who were called to the bar after being in long residence in one of the inns of court, could practice before the king's court. attorneys and solicitors prepared cases for barristers and practiced before minor courts. the king appointed the justices, with the advice of the chancellor. james i often intimidated the justices to see things his way. the oath of a justice was: "well and truly ye shall serve the king and his people. and ye shall take no fee or livery of none but the king, nor gift or reward of none that hath a do before you except it shall be meat or drink of small value, as long as the plea hangs before you. and ye shall do equal law and execution of right to all the king's subjects rich and poor, without regard to any person. ye shall counsel our sovereign lord the king in his need. and ye shall not delay any person of common right for the letters of the king or of any person or for any other cause ... so help you god." the courts of king's bench and common pleas, and the chancery all met simultaneously in westminster hall. throngs passed up and down the middle aisles between the courts, including booksellers, stationers, scriveners, and vendors of bread and hot meat. the hall was so cold that people kept on their coats and hats. the last court case concerning villeinage was in . chapter the times: - the entourage of charles i came to be called "cavaliers". they were named by their opponents for the spanish caballero who was a catholic who prosecuted protestants. their hair had long, curled, and flowing locks. they wore a broad-rimmed decorated hat. their fancy jackets and breeches were loose. boots were wide and folded over at the top. young men wore earrings and painted their faces. a lady wore her hair in ringlets on each side of her face. her dress was fitted at the waist, with a peaked bodice. it was low at the shoulders with a scoop neckline in front. she often wore much lace, especially at the neck down to the bust line. her outer dress and under-skirt that was revealed in front, were full and made of satin and stiff silk or velvet. only hose of silk were worn at court. a majority of prosperous industrial towns and fee farmers, led sometimes by lords or old landed gentry, were puritans. they dressed plainly and in somber colors such as black, grey, and buff, with no ornamentation except plain white collars and cuffs of linen rather than of lace. wool replaced silk and velvet. no jewelry was worn. the puritan women also wore long white aprons. the puritan women smoothed their hair back into little knobs and covered their hair and head with a white covering. both puritan men and women wore broad-rimed hats and plain shoes. the ordinary country man wore a felt hat, broadcloth coat, woolen trousers, hand-knitted worsted stockings, and plain, strong shoes. the puritan men for a time had short-cut hair. the puritan- parliamentarians were given the name "roundheads" after the crop- headed london apprentices whose rioting had marked every stage of the conflict between king and parliament. religion was a favorite and serious topic of discussion, even among the illiterate. nine-tenths of the people were protestant. on the whole, they were more inclined to salvation by grace than to salvation by good works. popular reading included guides for good manners such as "the rich cabinet" by thomas gainsford, and "youths behavior" translated from the french by francis hawkins. it advised not to sit with one leg on the other, but with the feet even; not to spit on one's fingers; and not to sniffle in the sight of others. books for ladies such as "delights for ladies" by hugh platt told them how to adorn themselves, tables, closets, and rooms with beautiful objects, perfumes, and waters. it taught preserving and the making of candy preserved by sugar, cooking, and housewifery. gervase markham wrote advice for men in "hobsons horse-load of letters", which addressed serious negotiations, private businesses, amorous accomplishment, wanton merriment, and the defense of honor and reputation. "a helpe to discourse" primed a man to meet company with suggested questions and answers, epigrams, riddles, and jests. in henry peacham's "the compleat gentleman" ( ), the model cavalier is portrayed in terms of horsemanship, tilting, sports, choice of companions, reserved and dignified conduct, good scholarship, and responsibility. this popular book was a guide to university, where there was a seven year course of classroom lectures. it advised conversation with men of the soundest reputation for religion, life, and learning, but recreation with those of the same rank and quality. first place was to be given to religion, so that the foundation of all studies would be the service of god. following in importance were: speaking and writing in english or latin (grammar, syntax, and rhetoric), astronomy, astrology, geography (whose authorities were pliny, strabo, and the pagan writers of the first century), chorography [map-making], mathematics (including arithmetic and geometry), poetry, (reading, writing, and criticizing), music (including part-music), drawing, limning [putting drawings in books], painting, art history, exercise (riding, running, leaping, tilting, throwing, wrestling, swimming, shooting, and falconry), logic and disputation (if related to one's intended profession such as the law), philosophy (plato and aristotle), and some medicine and botany. richard brathwaite's "the english gentleman" portrays the somber puritan who accepts the gospel of work. he is a staid and serious businessman. "matrimonial honour" by daniel rogers opined that for success, a marriage must be godly, with the parties equally religious, worshipping together in private and in public. a hasty or worldly marriage would bring repentance. the spouses should agree, but keep to their spheres. children should not be spoiled. large households were more or less self-supporting and were managed by their ladies. work included ordering wool, hemp, and flax; making cloth and dying it; dairy work; brewing; malting; baking; preserving wines; extracting oils; distilling perfume; and putting on banquets. couches were coming into use in parlors. the king and his court entourage settled for most of the year in whitehall instead of traveling around the country. the king let the public into hyde park, the king's private hunting park, for recreation. the city of london and westminster were still separate, but a mass of hovels was springing up in between them. in certain areas there were houses crowded with those wanted for minor offenses, small thefts, and debt. bailiffs did not dare venture into these areas because the inhabitants hid and defended each other unless the offense was a major one. the penalty for stealing even small sums was still death. the water carrier was still active and the night transport of sewage necessary. inigo jones was the first architect of consequence. he had studied in italy and designed and built the banqueting house at whitehall, near westminster, in london in . it had classical proportions and nice shaping and dressing in stone. he was now an arbiter of taste for the king charles and his queen and built many structures for them, including the queen's chapel at st. james palace and her bedroom in the queen's hose in greenwich. all over london and the country he and his pupils built many classical buildings, including houses, churches, stables, lodgings, out-buildings, staircases, galleries, watergates, and archways. they stood in stark contrast to the tudor buildings around them. in the , jones started town planning in london with covent garden fruit and vegetable market and terraced houses around a central piazza surrounded by open arcades with a tuscan church at one end. in , a man from the suburb of hackney introduced a line of coaches rented at s. per hour. they soon became very popular. the flemish johann baptista van helmont demonstrated that metals dissolved in acid can be recovered through chemical means and enunciated the doctrine that each thing in nature has its own specific organization. a large part of england was rebuilt as yeomen expanded their houses and others lower in rank replaced mud and wood hovels with brick and stone cottages. a separate kitchen appeared. the ground floors are boarded over to create bedrooms. permanent stairs replace ladders. glass appears in windows. glass and crockery replace wood and pewter, chairs replace benches. knives and forks become common. about began travel between towns by covered wagons called stage coaches. they carried passengers and goods and stopped at inns for stabling and repairs. work was begun in to make canals that would make marsh waters run to the sea. barges on canals were the most efficient mode of transportation. a barge could carry tons on a canal and only tons on a river. a single horse could haul an -ton wagon on iron rails or on a soft road, but only / of a ton on his back. a new trend of spring-sown crops led to better crop balance and reduced the risks of scarcity in a bad year. but the economy was still volatile. there were riots in london in - from a complete breakdown in political consensus, the factions being the royalist city elite versus the middling and lesser merchants and craftsmen. in , the clock makers broke away from the control of the blacksmiths. the gunmakers also broke away from the blacksmiths. the tinplate workers broke away from the ironmongers. "searching" for bad cloth became more difficult as the industry became more diversified. for instance, a new machine called a gig- mill did the work of many hand finishers. in , charles issued a commission for the reformation of the cloth industry with minute directions for the manufacture of cloth. but there were many disagreements over the details of manufacture and reform was difficult to enforce. by the s, many parishes had a resident intellectual for the first time. the parish priests came from gentry, upper yeomanry, urban tradesmen and clerical families. they were educated and highly learned. they had libraries and were in touch with contemporary religious debates. they saw their role primarily as pastoral care. many wanted to improve the religious knowledge and moral conduct of their parishioners. puritan influence deepened as they forbade dancing, games, minstrels, and festivals. they punished superstitious conduct. they initiated prosecutions in church courts for sexual lapses and drunkenness. the church court had little coercive power and its punishments were restricted to penance or excommunication. many puritan sects espoused equality for women. by the s women were preachers, e.g. in the baptist and anabaptist religions and, until , prophetesses. these sects were mostly composed of the lower echelons of society. poor people did not respond to sermons as did the well-to-do. nor were they as involved in church activity, attending church only for marriages, baptisms, and funerals. charles i not only believed in the divine right of kings and was authoritarian; he was the ultimate autocrat. he had an unalterable conviction that he was superior to other men, who were insignificant and privileged to revolve around him. he issued directives to reverse jury verdicts. parliamentarians oliver cromwell and other educated men opposed this view. the commons voted not to grant charles the usual custom-dues for life, making it instead renewable each year, conditioned on the king's behavior. charles dissolved parliament before this passed. he continued to take tonnage and poundage. charles wanted money for war so he imposed many taxes, but without the consent of parliament. they included many of which had fallen into disuse. he imposed a compulsory "loan" on private individuals, which the courts held was illegal, and imprisoned those who refused. bail was denied to these men. simpler people who refused were threatened with impressment into the navy, which included being landed on shore to fight as marines and soldiers. they sought to revive the old writ of habeas corpus to get released, but to no avail. charles billeted unpaid and unruly soldiers in private homes, which they plundered. it was customary to quarter them in inns and public houses at royal expense. martial law was declared and soldiers were executed. but the citizens did not want martial law either. the magna carta was now seen as a protector of basic liberties, instead of a restoration of certain past rights.. both attorneys and laymen read "the pastyme of people" written by john rastell in , which described the history of the magna carta from to . also read was the "great abridgment" of the english law written by rastell in , and coke's volume of his institutes which dealt with the magna carta, which the crown took to prevent being published until , when parliament allowed it. broad-scale pamphleteering turned england into a school of political discussion. oxford university favored the established church and cambridge university was puritan. the house of commons asserted a preeminence to the house of lords for the following reasons: the estates of the members of the house of commons were three times the extent of the members' of the house of lords. bishops' estates had diminished considerably because of secularization. the members of the house of commons were elected [chosen] by the people. the house of commons drew up a petition of right in , which expanded upon the principles of magna carta and sought to fix definite bounds between royal power and the power of the law. it protested the loans compelled under pain of imprisonment and stated that no tax or the like should be exacted without the common consent of parliament. it quoted previous law that "...no freeman may be taken or imprisoned, or be disseised of his freeholds or liberties, or his free customs, or be outlawed or exiled; or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land" and that "...no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned nor disinherited, nor put to death without being brought to answer by due process of law". it continued that "... divers of your subjects have of late been imprisoned without any cause showed; and when for their deliverance they were brought before your justices by your majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law." it also protested the billeting of soldiers in private houses and martial law trying soldiers and sailors. if these terms were agreed to by the king, he was to be given a good sum of money. since he needed the money, he yielded. he expected tonnage and poundage for the navy for life, as was the custom. but he got it only for one year, to be renewable yearly. the king agreed to the petition, quietly putting his narrow interpretation on it, and it was put into the statute book. in parliament distinguished between treason to the king and treason to the commonwealth. the chief justice held in that acts of parliament to take away the king's royal power in the defense of his kingdom were void; the king may command his subjects, their persons, their goods, and their money and acts of parliament make no difference. but the people refused to pay these taxes. charles thought of more ways to obtain money and disregarded his agreement to the petition of right. without the consent of parliament, charles extended ship money to all the kingdom instead of just the ports. it was used to outfit ships for the protection of the coasts. hampden refused to pay it on principle and the courts ruled against him in the case of king v. john hampden and he was sent to prison. when distraints were tried, the common people used violence to prevent them. the bailiffs were pelted with rocks when they came to distrain property. one man used his pitchfork to take back his steer being taken by the bailiff. if a distraint was successful, people would refuse to buy the distrained property of their neighbors. charles revived the right of the crown to force knighthood on the landed gentry for a fee. charles sold monopolies in such goods as soap, leather, salt, wine, coal, and linen rags although they had been abolished in the last parliament of james. this made employment uncertain for workers and prices high for the public, and put masters in danger of loss of capital. fines were levied on people for the redress of defects in their title deeds. crown forest boundaries were arbitrarily extended and landowners near crown forests were heavily fined for their encroachments on them. money was extorted from london by an illegal proclamation by which every house had to pay three years' rental to the crown to save itself from demolition. but what incensed the people more than the money issue were the changes in the established church. high churchmen, called ritualists, enforced ceremonies offensive to puritan feeling in every parish. the centrally placed communion tables were to be placed at the east end within railings and called "altars", or "mercy seats" as if for mass. they were to be ornamented with crucifixes, images, pretty trifles, books, candles and rich tapestries. bowing was to be done when approaching them. clergymen were to be called "priests" and their authority treated as divine. worship was to be done in accordance with the prescribed forms of romish breviars, rituals, and mass-books. its ritual was to have pomp and ceremony, including kneeling for communion. rings were to be used in marriages and crosses used in baptisms. churches, fonts, tables, pulpits, chalices and the like were to be consecrated, thereby putting holiness in them. churches that did not do this but used unconsecrated or "polluted" articles were closed by interdiction [a catholic censure withdrawing most sacraments and christian burial]. days, postures, meats, and vestments were to be regarded. the clergy was to wear supplices [white linen vestments flowing to the foot with lawn sleeves] and embroidered copes [vestment over the head]. a bishop wore a four-cornered cap, cope and surplice with lawn-sleeves, tippet (long, black scarf), hood, and canonical coat. churchwardens were to take oaths to inform against any who disobeyed. the law still required that all attend sunday sermons. but parishes had some control over who was their preacher, even though a minister could be assigned to a parish by the bishops without the consent of the patron of the church or parish people. by increasing the meager pay of a parish clergyman, they could choose one with a compatible theology or employ a lecturer from outside. the ritualists scolded clergymen for "gospel preaching" and suppressed puritan preaching in public meetings. preaching or printing matter concerning the controversy of free will versus predestination was forbidden. geneva bibles, which were popular among laymen, were prohibited from being imported. many were excommunicated for sitting instead of kneeling at communion. the clergy prohibited marriage if they liked by withholding their license, and they licensed marriages without banns. the ritualists encouraged certain sports to be played after church on sunday. the puritans protested vehemently to this because they wanted to strictly observe the sabbath. the puritans saw the high churchmen as wanting to return to the doctrine and customs they thought to be papist. the ritualists were absolutists in their political views and accepted the king's intervention in church matters. the ecclesiastical court of high commission enforced the edicts of the church, excommunicating those who did not conform and expelling clergymen who, for instance, did not bow at the name of jesus or wear the surplice. it was used against the puritans and imposed high fines and imprisonment for religious eccentricity and puritan preaching. charles supported the established church in this endeavor because it agreed that he had a divine right to rule. the universities and high churchmen were beginning to adopt the doctrine of free will over predestination. parliamentarian and puritan oliver cromwell and others feared this presaged a return to justification by works and the popish faith. in parliament, he spoke out against the tyranny of the bishops, whose offices he wanted abolished, and the elaborateness of church services. to avoid persecution, many puritans emigrated to virginia and new england. they were led by magistrates, country gentlemen, prominent businessmen, attorneys, and other professionals. in , the massachusetts bay colony was chartered at the instigation of john winthrop as a puritan refuge. its leaders led a migration of puritans organized to include five each of armorers, bakers, blacksmiths, carpenters, shoemakers, merchants; three each of clothiers, chandlers, coopers, military officers, physicians, and tailors; two each of fishermen, herdsmen, and masons; on tanner, and one weaver. the fare was five pounds and an applicant was interviewed to make sure he was a puritan. he got acres, or more for a larger family. but if he paid pounds into the common stock he received acres of land, plus more for each dependent. maryland was founded in as a haven for catholics, but its charter precluded a government-established religion. it was granted to lord baltimore to hold in free socage and was named after charles' wife, who was catholic. catholics in england could practice their religion only in their homes and could not carry arms. as hostility grew, censorship of books and plays accelerated and the number of authorized printers was reduced in by decree of the star chamber. in s effective government control of the press collapsed. then there were many pamphlets and newspapers with all variety of interpretation of the bible and all sorts of political opinion, such as on taxation; law and the liberties of the subject; religion; land and trade; and authority and property. twenty-two pamphlets were published in and , in . in the canons of the church included a requirement for parsons to exclaim divine right of kings every year. the commons soon resolved that this was contrary to the fundamental laws and liberties of the realm. the short parliament of was dissolved soon because the commons demanded redress of its grievances. the long parliament of - requested by the house of lords was agreed to by charles because he still wanted money. in election of members to the long parliament, voters wanted to know where contenders stood on certain political issues. in this parliament, the commons ceased to agree on all issues and started to rely on majority rule. the house of commons was led by john pym, a middle class landholder with extensive commercial interests. the commons treated the king's refusal to act with them as a relinquishment of his power to parliament. when it met at the long parliament, pym expressed the grievances of the king's actions against the privileges of parliament, against religion, and against the liberties of the subjects. specifically, he decried the disregard of free speech and of freedom from prosecution afterward, and the arbitrary dissolution of parliament. secondly, he alleged popery had been encouraged and the ecclesiastical jurisdiction enlarged. thirdly, he protested the patent monopolies given to favorites to the detriment of the buying public, the imposition of ship money levies beyond the need of national defense and without the consent of parliament, the revival of the feudal practice of imposing a fine for refusal to accept a knighthood with its attendant obligations, the enlargement of the king's forests and driving out from hence tenants with lucrative holdings, extra judicial declarations of justices without hearing of counsel or argument in many criminal matters, and the abuses of the prerogative courts in defending monopolies. parliament's assertion into religious matters and foreign affairs was unprecedented, those areas having been exclusively in the power of the king. the long parliament begun in removed many of the king's ministers and forbade clergy from sitting in parliament or exercising any temporal authority. it passed measures which were not agreed to by the king. it undid the lawless acts of the king and the court decision in the case of king v. hampden. ship money was declared illegal. the new concept that the present parliament should not be dissolved but by its own consent was adopted. the star chamber and court of high commission were abolished. the oath ex officio, an oath to answer all questions, was originally meant for facts at issue, but had been extended by these courts to opinions, beliefs, and religion and had led to abuses. the star chamber had been the only court which punished infractions of the kings' edicts, so now his proclamations were unenforceable. protection against self-incrimination was given by the provision that no person be forced "to confess or accuse him or herself of crime, offense, delinquency, or misdemeanor, or any neglect... or thing whereby, or by reason whereof, he or she shall or may be liable or exposed to any censure, pain, penalty, or punishment whatsoever, as had been the practice in the star chamber and the court of high commission. these measures were also adopted: no one may be compelled to take knighthood nor undergo any fine for not so doing. the forest boundaries are returned to their former place. all subjects may now import gunpowder; they may also make and sell gunpowder and import saltpeter. the root and branch petition of to abolish episcopacy roots and branches complained about pressure on ministers by bishops on threat of dismissal not to preach about predestination, free grace, perseverance, original sin remaining after baptism, the sabbath, doctrine against universal grace, election for faith foreseen, free-will against anti-christ, non- residents, nor human inventions in god's worship. it also complained about the great increase of idle, lewd, and dissolute, ignorant and erroneous men in the ministry who wanted only to wear a canonical coat, a surplice, and a hood, bow at the name of jesus, and be zealous of superstitious ceremonies. it also complained about the swarming of lascivious, idle, and unprofitable books, pamphlets, play-books, and ballads, such as ovid's "fits of love", "the parliament of women", barn's "poems", and parker's "ballads". further it opposed the restraint of reprinting books formerly licensed without relicensing. it protested the growth of popery and increase of priests and jesuits, the strict observance of saints' days whereby large fines were imposed on people working on them, the increase of whoredoms and adulteries because of the bishops' corrupt administration of justice and taking of bribes, and the practice of excommunicating for trivial matters such as working on a holy day or not paying a fee. it further protested the fining and imprisoning of many people; breaking up men's houses and studies; taking away men's books, letters, and writings; seizing upon their estates; removing them from their callings; and separating them from their wives, to the utter infringement of the laws and of people's liberties. it complained that these practices caused many clothiers, merchants, and others to flee to holland, thus undermining the wool industry. it finally complained of the multitude of monopolies and patents, large increase of customs, and ship-money. many londoners signed this petition. the house of commons decided to forbid bowing at the name of jesus. when the house of lords disagreed with this, the house of commons claimed that it represented all the people and didn't need the concurrence of the house of lords. the house of commons ordered that all communion tables be removed from the east end of churches, that the railings be taken away, and all candles and basins be removed from it. further, all crucifixes, images of the virgin mary, and pictures of any of the trinity were to be demolished, including those in markets and streets. further, all bowing at the name of jesus or toward the east end of the church or toward the communion table was forbidden. all dancing or other sports on sunday was forbidden. enforcement was to be done by justices of the peace and mayors. but these orders never became statutes. enforcement of the law for not coming to church was not now regularly enforced, so catholics had a respite. rebellion of irish catholics against england and english protestants broke out in ireland in . parliament didn't trust the king with an army that he could use against themselves so it passed the following two measures expanding the navy and calling out the militia and naming certain persons to be lieutenants of each county. the admiral shall impress as many seamen as necessary for the defense of the realm. this includes mariners, sailors, watermen, ship carpenters, but no one over the age of or masters or masters' mates. if one hides, he shall be imprisoned for three months without bail. justices of the peace shall impress as many soldiers as the king may order for war in ireland. this is despite the right of a citizen to be free from being compelled to go out of his county to be a soldier because the danger from ireland is imminent. excluded are clergymen, scholars, students, those rated at a subsidy of land of three pounds or goods of five pounds, esquires or above, the sons of such or their widows, those under eighteen or over sixty years of age, mariners, seamen, and fishermen. the penalty for disobeying is imprisonment, without bail or misprise, and a fine of ten pounds. if an offender can't pay the fine, he shall be imprisoned a year more, without bail or misprise. the right to call out the county militia had been a prerogative of the crown, so the king issued a proclamation ordering the soldiers to ignore this order and obey him. so parliament declared this proclamation void. the king accused five leaders of parliament, including pym, of trying to subvert the government of the kingdom, to deprive the king of his regal power, to alienate the affections of the people toward their king, forcing the parliament to their ends by foul aspersions, and inviting the scots to invade england. in , the king entered parliament with soldiers to arrest these five. they had flown, but parliament was shocked that the king had threatened the liberties of parliament with military force. the citizens of london, in their fear of popery, rose in arms against the king, who left the city. both sides raised big armies. the goal of the parliamentarians was to capture the king alive and force him to concessions. when the parliamentarians took oxford in , they purged its faculty of royalists. the law real wages, which had been falling, reached their low point and the gap between the poor and others widened. there were depressions from - and from to about , which called for royal proclamations for the relief and distress, especially among the poor. the book of orders, for the relief of distress in earlier reigns, was to be reissued. the assize of beer and bread maintaining quality, prices, weights, and measures, was to be duly kept. hoarding of foodstuffs was to be punished. fish days and lent were to be observed to maintain the fishers. abstaining from suppers on fridays and on the eves of feasts was ordered in all taverns and commended to private families. city corporations were to give up their usual feasts and half the charge given to the poor. foreign ships were not to be supplied with food for long voyages. the revised book of orders also covered the regulation of beggary, the binding of apprentices, and the general relief of the poor. all magistrates were to enforce the rules and raise special rates from all parishes, the richer of these to help the poorer. from to these statutes were passed: no one shall engage in sports or any pastimes outside his own parish or bearbaiting, bullbaiting, interludes, plays or other unlawful pastimes inside his parish on sundays because such has led to quarrels and bloodshed and nonattendance at church. the fine is s. d. or if the offender does not have the money or goods to sell to pay, he shall be set in the public stocks for three hours. no carrier with any horse or wagon or cart or drover with cattle may travel on sunday or else forfeit s. no butcher may kill or sell any victual on sunday or else forfeit s. d. every innkeeper, alehousekeeper, and other victualer permitting a patron who is not an inhabitant of the area to become drunk shall forfeit s. or be place in the stocks for six hours. offenders convicted a second time shall be bound by two sureties to the sum of s. as of , a parent sending a child out of the country to go to a catholic school was to forfeit pounds, one half to the informer and one half to the king. the petition of right herebefore described was passed as a statute in . judicial procedure the star chamber decided cases as diverse as a case of subordination of witnesses, cases of counterfeiters of farthing tokens, and cases of apothecaries compounding ill medicines. it tried to keep down the prices of foodstuffs for the benefit of the poor; it repressed extortion and false accusations, and disbarred an attorney for sharp practices; it punished defamation, fraud, riots, forgery of wills; it forbade duels. a special virtue of its position was that it could handle without fear matters in which men of social or local influence might intimidate or overawe juries or even country justices. it punished a lord who caused records to be forged, unlawfully entered lands, and seized tithes. it disciplined a nobleman for drawing a sword on a lord hunting hare. in one of its cases, sir edward bullock, a knight wanting to enclose a common of a thousand acres threatened his neighbor blackhall when he would not sell his lands and rights. the knight hired a man to break down the hedges and open a gate that had been staked up, so that his neighbor's cattle would stray. he sued his neighbor three times for trespass, lost his cases, and threatened revenge on all the witnesses who testified against him. he had the house of one pulled down. the pregnant wife and a naked child were turned out and had to lie in the streets because no one dared to take them in, even when a justice so directed. the witness, his wife, and family took refuge in an unheated outbuilding in the winter. he and his wife and one child died there. the knight had another witness cudgeled so that she was black and blue from the waist up, and could not put on her clothes for a month. the knight threatened to set fire to the house of another witness, and sent his men to pull him out of doors and keep him prisoner for some hours. the star chamber imprisoned the knight and his men. the knight was fined , pounds and the men pounds each. the knight also had to pay one witness pounds in reparation to the surviving children of the family whose house had been pulled down. but the power of the star chamber was abused by king charles i. for instance, one lord was accused by another of calling him a base lord. the evidence was paltry. but he was fined , pounds, one-half going to the king. a lord who was accused of converting agricultural land to pasture was fined , pounds. a person who exported fuller's earth, contrary to the king's proclamation, was pilloried and fined , pounds. a man who defaced a stained-glass window in a church was fined pounds and ordered to pay for a plain glass replacement. a man who became sheriff of a county and had taken the oath which bound him to remain in the county was elected to parliament and stood in opposition to the king on many matters. he was imprisoned for many years until he made a humble submission and had to pay a heavy fine. a london importer who was alleged to have said "that the merchants are in no part of the world so screwed and wrung as in england; that in turkey they have more encouragement" was fined , pounds for seditious and slanderous words against his majesty's happy government. a scottish minister circulated a book appealing to parliament to turn out the bishops and to resist its own dissolution by the king. in it he called the bishops men of blood, anti-christian, satanical, ravens, and magpies, preying on the state. he was against kneeling at the sacrament and denounced the queen for her catholic religion. he blamed the state for the death of citizens of a certain town by famine. for as he did "scandalize his majesties sacred person, his religious, wise, and just government, the person of his royal consort the queen, the persons of the lords and peers of this realm, especially the reverend bishops", he was fined , pounds, was to be unfrocked (which was done by the court of high commission), and was whipped, pilloried, one ear nailed to the pillory and cut off, his cheek branded, and his nose slit. then he was imprisoned for life, but only served ten years, being released by a statute of the long parliament. a puritan writer pyrnne wrote a book that included a condemnation of masks and plays, and all who took part, and all who looked on as sinful, pernicious, and unlawful. it opined that nero had attended plays and deserved to be murdered. since charles had attended plays and the queen had taken part in a mask, it was inferred that pyrnne meant them harm. his indictment alleged that "he hath presumed to cast aspersions upon the king, the queen, and the commonwealth, and endeavored to infuse an opinion onto the people that it is lawful to lay violent hands upon princes that are either actors, favorers, or spectators of stage plays". the justices saw in the book an attempt to undermine authority. the chief justice called the book a most wicked, infamous, scandalous, and seditious libel. pyrnne was sentenced to be degraded by oxford and disbarred by lincoln's inn, to be fined , pounds, to be pilloried and to have his ears cut off, and then to be imprisoned for life. three men who wrote attacks on the bishops and ecclesiastical courts, such as alleging that the bishops suppression of fasts and preaching had brought the pestilence upon the people and that the bishops had dishonored god and exercised papal jurisdiction in their own names, were each sentenced to , fine, the pillory, where their ears were cut off, and to life imprisonment. one, who had been convicted for libel before, was branded on both cheeks: "s.l." for seditious libeller. others printed similar material. in vain the star chamber limited the number of london printers to twenty, and made licensing stricter. these prisoners were set free by the long parliament. charles i intimidated justices to obey him in decision-making even more than james i. charles i so abused the power of the star chamber court that it was abolished by the long parliament and with it, the involvement of the king's council in civil and criminal cases. the regular church courts punished people for heresy, non- attendance at church, sexual immorality, working on the sabbath or a holy day, non-payment of tithes, and lending money at interest. the special ecclesiastical court, the court of high commission, was composed of clerics appointed by the king and decided cases of marriage annulment, alimony, adultery, married couples living separately, cruelty of husbands to wives, and habitual drunkenness. but it also took on cases of schismatics and extended its power over them to include staid and solid puritans, who uniformly believed that salvation was the only worthy earthly aim. acting on information attained through secret channels or from visitations, it would summon the accused, who was required to give, under oath, "full, true, and perfect" answers to broad and undetailed charges made by secret informants. refusal to take the oath resulted in commitment for contempt of court. if he denied the charges and fled, the court could hold the hearing without him. many fled out of the country or went into hiding in it. if the accused went to the hearing, he could not take an attorney with him. most of the issues involved clergy refusing to use the litany, to make the sign of the cross in baptism, to wear the surplice, or to publish the book of sports, and insistence on extempore prayer and preaching. other issues were clergy who, from the pulpit, inveighed against ship-money and unjust taxes, and spoke rudely against the bishops and tyrannical princes. one case is that of samuel ward, the town preacher of a large town, heard in . he neglected bowing or kneeling on coming to his seat in church and preached against the book of sports. he did not read the set prayers from the official book, but said prayers he had himself conceived. to this he replied that a parrot could be taught to repeat forms and an ape to imitate gestures. but his most serious offenses had to do with his utterances from the pulpit derogatory to the tenets and discipline of the church. he was accused of saying that he believed that congregations still had the right of election of all officers, including ministers. also, he allegedly said that in preaching on the christmas holidays he told his people "that in the following days they might do their ordinary business, intending to cross that vulgar superstitious belief, that whoever works on any of those twelve days shall be lousy". he allegedly warned his people to beware of a relapse into popery. ward was convicted of depraving the liturgy, tending toward schism, frightening the people, and encouraging the overthrow of all manner of government. he was removed from his position, deprived of his ministerial function, suspended and silenced during the king's pleasure. he was ordered to make submission and recantation both in court and in his church and to give bond for pounds. when he did not do this, he was sent to prison and lay there nearly four years, and died a few months later. in another case, a mrs. traske was imprisoned for at least eleven years for keeping saturday as her sabbath. many people were excommunicated and books censored for essentially political reasons. in , the king proclaimed that the common law courts could not intervene in ecclesiastical courts. the court of high commission was abolished by the long parliament. justices of the peace had general and quarter sessions, the latter of which were held four times a year with all justices of the peace attending. it was primarily a court of appeal from penal sentences. but it was also an administrative body to determine taxes and make appointments of officials and grant licenses for businesses. in , in distributing a deceased person's estate, the chancery court upheld a trust designed to hold the property for an heiress so that it did not become her husband's property. at the request of parliament, the king had all justices serve during their good behavior instead of serving at the king's will, which had been the practice for ages. this increased the independence of the judiciary. the rack was used for the last time in before the long parliament met. it was used to torture a rioter before hanging. men were still pressed to death for failure to plead, pickpockets still executed for the first offense, and husband murderers still burned. chapter the times: - for four years, there was civil war between the king, backed generally by the upper class, the established church, and most of the gentry, against the parliamentarians, backed generally by middle class yeomen, town dwellers, some of the gentry, most of the great corporations, the city of london, the ports, the seamen, and the navy. oxford university was royalist, and cambridge university was puritan in sympathy. archery was not used in the war, having become just sport by . flint-lock pistols, which relied on flint striking steel to ignite the powder, as well as swords were used by horsemen in the civil war. footmen were musketeers using a match lock with a cord boiled in vinegar as the match, and dressed in leather doublets and an iron-pot headpiece; or pikemen with long wooden poles with spearheads of iron or steel and short swords, and dressed in armor. this was the last time armor was used. the parliamentarians wore orange scarves to distinguish themselves from their enemy. cromwell, who had a natural aptitude for military matters, selected for his troops, puritan zealots with a puritan code of behavior which included no drinking or swearing. he selected horsemen based on ability rather than social class. he was regarded as one of the leaders of the independents, who wanted total abolition of the monarchy and of the aristocracy. when made a leader of the new model army, cromwell dressed all his foot men in red with only the facings being regimental colors. the new model army had been assembled because there had been disagreement about policy among the members of parliament who held commissions. almost all members gave up their commissions. for their continued support, many wives and also prostitutes put on men's clothing and followed the troops. they nursed the wounded. those many wives who stayed at home pleaded and answered in court; petitioned to the house of commons, e.g. for release of debtors from prison, high taxes, lack of work, and arbitrary government; and made other public appearances. puritan and royalist newspapers printed the news at least once weekly. poet john milton pled for civil and religious freedom, freedom of social life, and freedom of the press. he stated: "give me the liberty to know, to utter, and to argue freely, according to conscience, above all liberties." the mayor and citizens of london were given authority in to fortify all highways leading to the city and levy a tax on inhabitants for this purpose. when london was deprived of coal during the war, trees and flowers again flourished there. officers and seamen in navy ships were authorized in to take one-third of all prize goods captured, the other two-thirds going to the state. parliament approved certain persons to set forth ships at their own expense to defend the realm in . they were allowed to keep any ships, goods, ammunition, or moneys they seized. saltpeter men were appointed by parliament in and later times to search and dig for saltpeter in pigeon houses, stables, and outhouses, but not dwelling, shops, or milkhouses. they had to repair any damage done to the contentment of the owners. complaints were made to parliament that there were scandalous and ill-affected fomenters of the civil war and disobeyers of the ordinaries of parliament and deserters of their ordinary places of residence. these complaints were made by members of the university of cambridge, students, clergy in surrounding counties, and schoolmasters. so a committee was established in to investigate and sequester their lands and goods, excepting one- fifth of the estate for the wife and children. when charles was captured in , the episcopacy of the bishops was abolished. when parliament was about to reinstate charles as king with weakened powers and establish a presbyterian state church, the soldiers, who were religious independents and who still had not been fully paid (the infantry pay was weeks in arrears and the cavalry weeks) despite plans to disband them, spontaneously took the king by force. they demanded liberty of conscience to practice their own religion and their pay. cromwell sided with the army and then became leader of the house of commons. charles dissembled in his negotiations with the army generals. he felt freed from his promises as soon as the pressure was removed. the army could not forgive charles' duplicity and deceitfulness and insisted upon his death as the only way to bring peace. cromwell gave up hope on negotiations with charles when he intercepted a letter by charles to his queen decreeing the final doom of the army adherents in favor of the scottish presbyterians. during protracted negotiations over months between the army and parliament over a new constitution, a renewed support for the king, which was inspired by him, necessitated a second civil war to put down this revolt and subdue its scot supporters. eventually the army took control of parliament by force, only allowing the few members who agreed with them on the trial of the king into parliamentary meetings. so charles was tried in , found guilty of "an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people ... which by the fundamental constitutions of this kingdom were reserved on the peoples' behalf in the right and power of frequent and successive parliaments or national meetings in council", and maintaining a war against his subjects, which amounted to treason. to prevent his adherents from trying to reinstate him, he was condemned to death and beheaded in january . to pay for the civil war, an assessment tax on the yearly value of rents, annuities, and offices was often levied. the main burden of this tax fell on the gentry rather than the merchants and smaller men of property, as previous taxes had. an excise tax, a tax on consumption, was begun on ale and beer and then extended to meat, salt, starch, soap, and paper. it was gradually extended to many goods. the excise taxes were paid, as was the customs tax, by manufacturers on goods made in england and by foreign manufacturers on goods at the ports. parishes had to give maintenance to maimed soldiers and provision for the livelihood to the wives and children of killed soldiers. masters of apprentices who became soldiers had to take them back as apprentices without loss for their absence in defense of the commonwealth. masters who received considerable loss by the absence of their apprentices received reasonable satisfaction from the public stock. from - , royalists were purged from oxford and a group of baconians moved into the university behind parliamentary armies. at the two universities, books were no longer chained to the bookcases. the universities were freed from taxation. after the civil wars, cromwell led the country. he was a military, political, and religious leader. he had become a puritan zealot after a youth of gambling, drinking, debauchery, and rioting. he believed that military success was a reflection of divine favor and he regarded himself as one the few elect preordained for salvation. those in power in the new commonwealth tended to explain their regime in terms of popular consent, and the takeover from charles i as due to his breaking of a contract with the people. most people dressed in puritan fashion. a puritan's favorite readings were the old testament, epistles of st. paul, and writings of john calvin. wealth and prosperity steadily increased in spite of the civil wars. during cromwell's tenure, there was a marked revival of economic prosperity. by the mid- s, landlords had been able to shorten their leases so that a lease of twenty-one years was the predominant form of landholding. patent protection was given in for seven years to the inventors of a device for salvaging ships' goods and cannons from the seas. with it they could convert to their own use one half of the items retrieved, the other half going to the navy and parliament. patent protection was given in to george manby on his new invention for boiling liquors and making salt with less coal and wood and iron, lead, and copper for fourteen years. patent protection was given in for fourteen years to jeromy buck for melting iron, lead, tin, copper, brass, and other metals with coal without burning charcoal. the merchant adventurers were incorporated again in to have a monopoly. it was required to admit into membership for pounds anyone free of london and bred as a merchant, and for pounds any non-inhabitant of london. the penalty for trading for one who was not free of the corporation was forfeiture of his goods. in , the house of commons abolished the monarchy and in the house of lords. also in it declared that england "should thenceforth be governed as a commonwealth and free state by the supreme authority of this nation, the representatives of the people in parliament." it made a new constitution. john milton defended the commonwealth as superior to the monarchy because it could not deteriorate into tyranny in his books: "first defense of the people of england" in , and "second defense" in . he lauded cromwell as great in war and great in peace, and exemplifying the principle that "nature appoints that wise men should govern fools". thomas hobbes, the son of a clergyman, and tutor to students, wrote "leviathan" in on his theory of sovereignty. hobbes thought that states are formed as the only alternative to anarchy, barbarism, and war, so that supremacy and unity of a sovereign power is essential to a civilized life and the protection of the citizenry. a sovereign may be a man or body of men as long as his or its authority is generally recognized. there must be a social contract among the citizenry to obey a certain sovereign. to avoid religious conflict, there must be a complete subordination of the church to the state and the religion of a state must be dependent upon its secular sovereign. hobbes thought that knowledge of the world came through experience and not reason alone. only matter exists, and everything that happens can be predicted in accordance with exact, scientific laws. he regarded human societies as purely mechanical systems set in motion by human desires. he saw self interest as the mainspring of moral law. conflicting self interests transformed into a lawful system of agreements. hobbes opined that all power really originated in the people and that the end of all power was for the people's good. on the other hand, james harrington, who wrote "the commonwealth of oceana" in , opined that a stable society depended on a direct relationship between the distribution of property and political power; no one with property worth more than , pounds should be allowed to acquire more and property should be divided among children. a senate of mature property owners were to make and debate the laws while an assembly elected by universal suffrage was to vote on them because "a popular assembly without a senate cannot be wise and a senate without a popular assembly will not be honest". a third of the senate would turn over every year. john milton defended the execution of the king in "the tenure of kings and magistrates" in which he maintained that the people may "as often as they shall judge it for the best either to choose him or reject him or depose him, though no tyrant, merely by the liberty and right of freeborn men to be governed as seems to the best". he also wrote in favor of liberty of the press. ordinary speech found its way into prose writing. lands of more than royalists, including church lands, were confiscated and sold or leased by county committees. many royalists put their lands into trusts or turned them over to relatives or sold them outright to prevent confiscation. it was an upheaval comparable to the dissolution of the monasteries. also, specified papists who had taken up arms against the realm lost their lands, goods, money, rents, and two-thirds of their personal estates. but allowance was made for the maintenance of their wives and children. the book of common prayer was abolished because of its burdensome ceremonies. it was replaced by a directory for public worship. according to this, the sunday service was to include reading of the scriptures, prayer, and a sermon, ordinarily on some text of scripture which would be explained with reasons therefore and applied to peoples' lives so they could see if they had sinned or not. the ending of episcopal patronage gave some parishes the right to elect their own ministers. all festivals and holy days were abolished, e.g. christmas, easter, whitsuntide. instead, scholars, apprentices, and servants were to have recreation and stores were to be closed every second tuesday of the month. the usual merry-making, music, dancing, and sports after the sunday service were discontinued. a day for fasting: the last wednesday of every month, was declared by statute. this day was to be "kept with the more solemn humiliation, because it may call to remembrance our sins, and the sins of our forefathers, who have turned this feast, pretending the memory of christ into an extreme forgetfulness of him, by giving liberty to carnal and sensual delights, being contrary to the life which christ himself led here upon earth, ...". this statute lasted for only five years from because observance of it was not consistent throughout the country. educational opportunities such as in grammar schools were more widespread and stronger than ever before or since until the s. about % of men in london were literate, and % of men nationwide. about half the women in london were literate by . in , the marshalls of the admiralty and five major ports were ordered to search all ships for stolen children since it had been a problem in london. the elderships of the church were given power in to suspend from the sacrament of the lord's supper all ignorant and scandalous persons. ignorance was lack of knowledge that there is a god and this is the one true god we worship, that this god is one, yet three persons: father, son, and holy ghost, that god created man in his own image, that all have sinned and therefore shall die, that there is one mediator between god and man: jesus christ, who died on the cross to save men from their sins, that he rose from the dead, ascended into heaven, sits at the right hand of god, and intercedes for us, that christ and his benefits are applied only by faith, that the souls of the faithful live with christ in blessedness, that non-believers and non-repenters shall perish eternally, that the sacraments are baptism and communion, and that there is a judgment day on which the righteous will be given life eternal and the wicked shall receive everlasting punishment. scandalous persons are those who blasphemously speak or write anything of god, his holy work or the sacraments; an incestuous person; an adulterer; a fornicator; a drunkard; a profane swearer or cursor; a murderer; a worshipper of images, crosses, crucifixes, relics, saints, or angels; makers of images of the trinity; one who professes not to be in charity with his neighbor; any challenging another to fight or accepting such challenge; on the lord's day, dancing, dicing, cards, masking, wake, shooting, bowling, football, wrestling, plays, interludes, fencing, bullbaiting, bearbaiting, hawking, hunting, coursing [hunting with hounds], fishing, fowling, selling wares, travel without reasonable cause; a brothel-house keeper; one who solicits the chastity of another; one who marries a papist or consents to the marriage of his child to a papist; own who goes for advice to a witch, wizard, or fortune-teller; one who assaults his parents, or any magistrate, minister, or elder in the execution of his office; and one attainted of barratry [purchase or sale of office or preferment], forgery, extortion, or bribery. if such a person persists, he shall be excommunicated. cromwell did not disapprove of activities prohibited because of the recreation they provided, but thought that they had become too central to people's lives. he did not close the taverns or ale houses. in it was required that public preachers be approved by a commission nominated by the lord protector and parliament because there had been too many "weak, scandalous, popish, and ill- affected" ones. in named persons were ejected as scandalous, ignorant and insufficient ministers and schoolmasters. because the poorer parishes of london were having problems supporting their poor, a corporation for the poor of london was established in with authority to erect workhouses and houses of correction. imprisoned debtors who had less than five pounds and less that five pounds worth of trade tools and clothing and bedding for his family were ordered released in . wardship was abolished. military tenures were abolished. feudal tenures were converted into freehold in . in those living in crown forest land were given free socage in that land. the game laws were not enforced, so people could eat deer. enclosures were increasing and parliament was disinclined to protect copyholders against enclosures, favoring those with rights of ownership. enclosure was no longer deterred especially after abolition of the star chamber. the legal device of "strict settlement" evolved to prevent heirs from breaking up estates enabled families to concentrate land and capital into large units. the oldest son inherited the land and the younger sons now received money. clover seed was sold in london by . it revolutionized the cultivation of barren land. england began to export instead of import grain. but vagrancy increased from people dispossessed of land. and the village artisan, when deprived of his field and of his rights of common, could not continue to work at home, but had to accept the wages offered to him in an employer's workshop. employers and entrepreneurs were now free from control by the crown. there were no more attempts to supervise quality of manufactures or to fix prices or regulate wages. there was greater freedom established in relations between employers and workers. the government no longer tried to compel employers to keep employees in times of economic slump. the requirement of seven year apprenticeships and being the son of a freeholder to be an apprentice were not enforced. the economy was still volatile due ostensibly to variable harvests, amount of gold and money in circulation, and balances of trade, and to periods of plague. wages rose steadily. the rise in prices ended about , and prices remained stable until about . there was more mobility of people. taxation became regular and it was controlled by representatives of the taxpayers. population growth gradually stabilized. capitalism was coming into being. for instance, the clothier was now a manufacturer. he had become a contractor, taking wool to the specialist spinner, the yarn to the specialist weaver, the rough cloth to be washed and stretched, and finally to the dyer. this cloth was sold at retail by the drapers. tin on the surface was exhausted, so capital was used to drive deep shafts in tin mines. no longer did a single man with a single ship sail around until he found a market, but companies trading overseas had their ships, wharves, and depots furnished by men's savings put into a common stock. the first major capitalist industries were coal mining, iron mining, and foreign trade because they all needed large investments, and thus joint-stock company organization. cromwell reconstituted the east india company on a wider and more permanent basis. he gave it a new charter in which included authority to make stock permanent, thus ensuring a continuity of capital. this solved the problem of the competition of overlapping voyages which still occurred despite their terms of several years. the company became one of the first permanent joint-stock companies. now the stock was never wound up. the company had permanent capital which could grow. the absence of competition among voyages made the company stronger in the face of a common enemy, such as a rival trading country or indian groups. the charter also authorized the company to fortify and colonize any of its establishments and to transport to them settlers, stores, and ammunition. later in , the company threw open the freedom of the company to the public for a nominal sum of five pounds. now the merchant adventurers and private traders could participate. it provided that dividends were to be paid only in cash and not in kind (goods). it also provided for appraisals of the company's property to be made every three years, so any shareholders could redeem their shares proportionately. his shares would then be resold. people began to buy and sell their shares among each other. the company made the minimum subscription pounds. each person holding pounds worth of shares had one vote. holding , pounds worth of shares qualified one for election to the committee of twenty-four. the seats of the members of this committee and of the governor and deputy governor could no longer be permanent, but had limited and staggered terms. the continuity of capital took the place of the permanence of the governing body in providing stability. there was a regular scale of salaries for employees, and rules of conduct such as the one disallowing any clerk of the india house from going to play houses, dancing schools, or taverns. the company established almshouses for its widows and orphans. in the muscovy company, renewed its charter for trade in russia and established a new general stock. if a man bought a share, he bought freedom of the company. an annual dividend was declared from the annual profits. commercial men regularly kept accounts with bankers. merchants used division to apportion profits or losses to the parties whose capital was involved. simple and compound interest were used. the concept of contract became a familiar one. regular private bankers of london emerged from the goldsmiths from to . they issued bank notes and paid checks. cromwell increased trade by seizing territories, establishing colonies, and warring with competitors for master of the seas and trade. in it was provided that no one who paid his assessment for soldiers' pay would have to quarter any of them. authority was given in to impress seamen: mariners, sailors, watermen, surgeons, gunners, ship carpenters, caukers, coopers, whoymen, and carmen for carriage of victuals. english ships were embellished with decoration. their sail area was increased by triangular fore and aft sails. the navy increased from to vessels. after serving in foreign wars, ex-soldiers were allowed in to practice any trade without serving a seven year apprenticeship. colonies new hampshire and maine were established in , connecticut in , and rhode island in , as offshoots from other colonies. in a corporation was established to teach the gospel of jesus christ in new england to indians. about , steel was hardened by repeated quenchings and temperings when the steel had reached certain colors. brass was made from copper and zinc alloyed together. there were power-driven rolls for the coinage from . strips of silver were passed between engraved rolls. then coins were punched out and their edges serrated. in the s, huygens made the first pendulum that worked practically in a mechanical clock. this new clock increased the accuracy of time-keeping tenfold. he also introduced the concept of mathematical expectation into probability theory. there was a thermometer which used liquid such as water or alcohol in a glass tube instead of air. dutchman stevinus showed that the pressure at the bottom of a column of liquid is proportional to the height of the column, and not to its bulk, about . he also studied oblique forces, and the balancing of such that could bring about "stable equilibrium". evangelista torricelli, an italian student of galileo, discovered in that any fluid will be supported at a definite height, according to its relative weight, as compared with air. he realized that a mercury column, inches in height, in a long glass tube inverted in a cup of mercury, was being supported by air pressure exerted on the mercury in the cup. when he observed that this height changed with the weather, he had invented the mercury barometer. in his work, he created and used vacuums. blaise pascal, a french mathematician, physicist, and religious philosopher, was a child prodigy. at the age of , he proved euclid's nd theorem that the sum of the angles of a triangle is equal to two right angles. before age , he wrote a book on conic sections. he is famous for his theorem that a hexagon inscribed in a conic section has the property that the three meeting points of the opposed sides are always in a straight line. he constructed a calculator, which could handle nine-digit numbers, in to assist his father, also a gifted mathematician, in tax computations he did as a local government official. he had torricelli's mercury barometer carried up a mountain and found that the height of the column dropped as altitude increased, and thus that air pressure decreased with altitude. this showed that the attribution of these effects to nature's abhorrence of a vacuum were due instead solely to the weight and pressure of air. he determined that the height to which the mercury rose was the same regardless of the shape of the vessel containing it. around , he did experiments with double vacuums and on the results formulated his principle that pressure applied to a confined liquid is transmitted undiminished through the liquid in all directions regardless of the area to which the pressure is applied. around , he laid the foundations for the theory of probabilities after being asked by a gambling friend why, in playing dice, some frequencies came up more often than others. he developed a means of calculating probabilities with his "pascal's triangle" of coefficients of (a+b) raised to the nth power. each row represents the coefficients of a power one greater than the power of the previous row. each number is the sum of the nearest two numbers in the row above it. he and lawyer and mathematician pierre fermat invented the theory of probabilities. fermat also proved that the law for refraction (bending) of light results from light's following the path that takes the shortest time. he founded number theory, the study of properties of whole numbers, in . fermat formulated the notion of a line tangent to a curve and started the development of differential calculus, in which a rate of change is expressed as a function of time in equation form and also as a tangent to the curve associated with that equation. this work helped lay the foundation for the mathematics field of analysis. he and german gottfried leibniz formulated the principle that an equation with two unknown quantities can represent a curve. leibnitz believed that man's mind can arrive at truths about entities by pure thought. jean ray from france concluded from his experiments that every piece of material has a given weight, including air and fire. otto von guericke from germany discovered that, in a vacuum, sound does not travel, fire is extinguished, and animals stop breathing. at a time when mathematics was only a business of traders, merchants, seamen, carpenters, and surveyors, mathematician john wallis, the son of a minister, studied sections of cones [circles, ellipses, parabola, and hyperbolas] as curves of the second algebraic degree, i.e. with an exponent of two, i.e. y = (a (x squared)) + b. he also worked with negative and fractional exponents. around he invented the infinite arithmetic and introduced the symbol for infinity. he determined that the area under any curve defined by the equation y = (x to the nth power), was x to the (n+ )th power divided by n+ . he introduced the concept of the limit of a string of numbers. he wrote a treatise on algebra which was historical as well as practical. he also decoded enemy cyphers for the sovereign. some english gentlemen interested in the new scientific methods originated by galileo had meetings beginning about to discuss scientific topics. one group met at gresham college and was headed by wallis. another group was led by robert boyle, a philosopher, physicist, and chemist. they wrote in english instead of latin. these meetings later gave rise to the royal society for science. since the puritans forbade music in churches, but enjoyed it in domestic circumstances, much secular music was composed, published, and played. there were many musical clubs. the violin became very popular. solo songs were much sung. the first english opera: "the siege of rhodes" was written and performed with women on stage. writers of the time included john milton, political philosopher james harrington, poet edmund waller, thomas fuller, poet abraham cowley, and biographer issak walton. john aubrey wrote anecdotes about famous men. jeremy taylor, chaplain to charles i, wrote on theology. people still read french romances translated into english. dancing was still popular. coffee houses came into prominence as places of social discourse. the first coffee house was established in london in ; ten years later, there were coffee houses in the city. there were elegant pleasure gardens, with a fee for access. they were used for promenades and picnics. ladies and their gallants rendezvoused there. cromwell introduced the habit of port drinking to england. in , one general post offices was established with one postmaster general for all of england. no other person could have the horsing of the through-posts. it cost d. for a letter to or from miles of london and d. for one outside miles of london. the society of friends was founded by the son of a weaver. they greeted everyone as "friend" and did not bow; remove their hat, as was the custom when before the king or an earl; or otherwise show any reverence to anyone. from , they were called quakers because they trembled when religiously stirred. they reverted to the ancient "thou" and "thee" appellations. their dress was particularly simple, with no buttons, lace, ruffles, or embroidery. they hated ritual so much that they rejected baptism and communion. they did not observe the sabbath as a special day different from other days. they derided the holiness of churches. no clergy were admitted into their sect. when they met for divine worship, each rose to deliver extemporaneous inspirations of the holy ghost. women were admitted to teach the brethren and were considered proper vehicles to convey the dictates of the spirit. quakers believed that every man, in his own life, could be fully victorious over sin. they denied any clerical authority and all texts. they believed in the separation of church and state. they refused to swear to any oath, e.g. in court, or to participate in war. they refused to take off their hats to anyone but god. it was their practice to turn the other cheek when one cheek had been struck. if asked for his cloak, a quaker would give it. he never asked more for his wares than the precise sum which he was determined to accept. the quakers encouraged widows and widowers to provide for children from a first spouse when remarrying. they carefully selected masters and mistresses who wanted to take on child apprentices for their suitability for such responsibility. the education of quaker women did not decline, as it did for other women. from the fervor of their zeal, the quakers broke into churches, disturbed public worship, and harassed the clergyman and audience with railing and reproaches. when brought before a magistrate, they show no reverence but treated him as an equal. sometimes they were thrown into mad house or prisons and sometimes whipped or pilloried. they endured stoically under this suffering. mary fisher from yorkshire introduced quakerism to colonial new england. in there were separation agreements between spouses as to property, e.g. support and maintenance. cromwell had bad experiences with parliaments. the rump parliament was a remnant of the long parliament. the army and then cromwell, although a member, came to believe that its members were self- interested, preoccupied with perpetuating themselves in seats of power, and corrupt. they thought that their own hopes of reform in the law, in the church, and in public finances were being deliberately frustrated. cromwell came to doubt that it would ever give the people adequate government and protection. he started to believe that one man as chief executive could do this better. cromwell dismissed the rump parliament in . a new constitution created a puritan "parliament of saints". these men were nominated in various ways, such as by church parishes, and selected by cromwell. this one-house parliament of saints in made cromwell lord protector for life with executive power of the state, with responsibility for making peace and establishing order after a decade of civil strife and political chaos. he was to administer the government and be the chief magistrate. it also provided for triennial parliaments consisting of one house, and religious freedom for all except roman catholics and adherents of the formerly established church of england. cromwell did not tolerate the ritual of the formerly established english church nor allow any of its adherents to have any office under him. his was a purely puritan government. he did not sell offices. the parliament of saints challenged many vested interests in property such as sales of delinquents' and papists' lands. it clashed severely over the continuation of tithes to the church. it became disorderly when some declared the parliament dissolved and left. others remained in their seats. to avoid a parliamentary crisis, cromwell had soldiers close the parliament of saints and lock its doors. the people supported this action because they were dissatisfied with the state of public affairs. the next parliament that was tried was elected on a new constitutional basis of men with pounds, but these men voted to make parliament sovereign without a chief executive, thereby abolishing the protectorate. cromwell was distressed that this parliament had also voted themselves to be the sole determinors of atheism and blasphemy instead of advancing liberty of religious conscience and religious toleration as cromwell had advocated. he dissolved this parliament, declaring that it was not acting for the public good. a last parliament was also dissolved by cromwell for tending to loosen the bonds of government and thereby threatening the peace of the nation. cromwell had first ruled as a democratic leader who did not believe in force, but preferred to persuade with reason. he initially believed that people would do the right thing according to their consciences, but was disillusioned and then became autocratic. he came to rule as a military dictator. payment of taxes was enforced by distraint. after , he issued about proclamations covering public amusements, roads, finances, the condition of prisons, the imprisonment of debtors, banning of dueling and cockfighting, law reform, control of religion and education, and reorganization of the army. the singing of ballads was banned. the court of chancery was reformed by proclamation. the established church was reformed and the power to interfere with different faiths was denied to it. each parish could choose its form of service, whether presbyterian, congregational, baptist, or any other seen as fundamental by the puritans. no one was compelled to attend any particular church or to accept the discipline of any particular minister. but the book of common prayer was forbidden. there was freedom of worship for presbyterians, independents, baptists, quakers, catholics, and jews who had secretly migrated to england to avoid persecution on the continent, but not prelatists , who favored government of the church by bishops). in , cromwell placed major generals in charge of eleven newly- established provinces. as their governors, they had authority to levy troops, exact taxes imposed by the protector, disarm royalists and catholics, examine into the conduct of the clergy and schoolmasters, arrest dangerous and suspicious persons, prevent unlawful assemblies, and to enforce the existing laws against immorality and blasphemy. the only appeal was to the protector. since they were puritans, they ordered public ale houses to close as dusk, banned idlers, minstrels, and actors, forbade exercising of horses on sunday and the holding of markets on saturday as well as sunday, censored the press, and proscribed newspapers. horse races, which meetings were used for seditious purposes, were closed. theaters were closed. dancing was discontinued. organs and choirs in churches were prohibited. court masks continued because they provided soothing music. after a year, cromwell withdrew the major-generals. from this time, men of property hated the idea of a standing army. in , the officers of a new parliament modified the constitution and cromwell approved it. it was to secure liberties of the people as they never before had. under the modified constitution, there were again two houses. the commons regained its old right of exclusively deciding on the qualification of its members. parliamentary restrictions were imposed on the choice of members of the council, officers of state, and officers of the army. a fixed revenue was voted to the protector. no moneys were to be raised except by consent of parliament. liberty of worship was guaranteed to all except papists; prelatists; socinians, who denied the divinity of jesus; for those who denied the inspiration of the scriptures. liberty of conscience was secured for all. in , cromwell tried another parliament, but dissolved it because it wrangled without resolution. there was continual problem with catholics. mayors, justices and capital burgesses of towns where papists or others had caused rebellion and insurrection and plundered, robbed, pillaged, murdered and raped, were given the power in to call, assemble, train, and arm soldiers for defense. the committee of the militia of london was given authority in to search all houses and places for papists and to search for and seize any arms, ammunition, and war materials in custody of such persons. in , all papists and soldiers of fortune who had borne arms against parliament were ordered to depart from within twenty miles of london and westminster or be imprisoned as traitors. in convicted papists and people marrying convicted papists were required to take an oath renouncing the pope and catholic church or lose two-thirds of their lands and estate, retaining their house on the remaining one-third. if one went to mass in an ambassador's house, the fine was pounds and imprisonment for six months, one half going to the informer. in all householders in london and westminster had to give a list of persons lodging in their house, and the horses and arms there. but the laws against catholics practicing their religion were not rigorously enforced, nor were those against adherents of the formerly established church of england. after cromwell died, the people demanded the return of a genuine and free parliament. the old constitution was restored and a new house of commons was elected. it called charles ii to return to be king if he promised religious freedom and backpay to the army, which had not recently been paid. when cromwell's puritan soldiers were disbanded, they did not drift into thievery as royalists soldiers had before, but took up honest work such as baker, mason, brewer, baker, or haberdasher. puritanism now made itself felt not by the sword, but in literature and politics. it affected the character of the english, who tend to be stoics, and imbued capitalists with a hard-working attitude. the law after the civil wars, the law against enclosure was not enforced. what was passed in parliament in cromwell's time were called statutes, but after cromwell's time, these statutes were not recognized as legitimate. "whereas public sports do not well agree with public calamities, not public stage-plays with the seasons of humiliation, this being an exercise of sad and pious solemnity, and the other being spectacles of pleasure, too commonly expressing lascivious mirth and levity ... public stage plays shall cease, and be forborne instead of which are recommended to the people of this land the profitable and seasonable considerations of repentance, reconciliation, and peace with god, ..." no book or pamphlet may be printed, bound, stitched, or sold or imported unless licensed and entered into the register book of the company of stationers. officials of this company and of parliament may search all places which they shall think meet for all unlicensed printing presses and all suspected printing houses, warehouses, and shops and other places for unlicensed books and pamphlets and papers and seize them and apprehend all authors, printers, and other involved people and bring them before parliament or the committee on examinations for punishment. justices of the peace and other officers may order doors and locks broken for this purpose. the fine is ten pounds for authors, five pounds for printers, two pounds for booksellers, and one pound for buyers who conceal a book bought. one half of each fine shall go to the person who discovers and prosecutes the offender, and the other half shall go to the poor. this law suppressed royalist newspapers but was enforced only with great difficulty. all shall observe sunday and days of thanksgiving in their "duties of piety and true religion publicly and privately" and none may sell wares or goods, including fruit or herbs upon pain of forfeiture of such. none may, without reasonable cause, travel, carry burdens, or do any worldly labors or work whatsoever or pay a fine of s. this work shall include grinding grain, fulling in mills, burning turf or earth, gathering taxes, melting wax for candles, brewing, baking, butchering cattle, tailors fitting or carrying clothes, barbers trimming hair, being present at fairs or markets, or washing, whiting, or drying clothes. nor may any one maintain or be present at wrestlings, shooting, bowling, ringing of bells for pleasure or pastime, masks, wake, church-ale, dancing, games, sport or, for those over , forfeit s., and for those having care or education of a child under , d. maypoles, a "heathenish vanity, generally abused to superstition and wickedness", shall be taken down by officers or else forfeit s. per week. if any offender can't pay his fine, he shall be put in the stocks for three hours. however meat maybe dressed in private families, and victual sold in inns and victualing houses in a moderate way, and milk sold before a.m. or after p.m. persons of the trinity, angels, or saints shall be demolished. altar and communion tables must not be raised but leveled. there may be no copes, surplices, superstitious vestments, or holy water fonts. there may be no crosses, crucifixes, pictures of the trinity, angels or saints on plates. all organs must be taken away. the fine for using the book of common prayer is five pounds for the first offense, ten pounds for the second offense, and one year imprisonment without bail for the third offense. the penalty for writing or preaching against the directory for public worship is five to fifty pounds. blasphemies and heresies such as teaching or writing or printing that there is no god, that god is not almighty, that jesus was not divine, that the resurrection of jesus did not occur, that the bible is not the word of god, or that there is no judgment day after death, are felony without benefit of clergy. if such an offender recants, he shall stay in gaol until he obtains two sureties. if he offends again after recantation, it is felony without benefit of clergy. in adultery was declared to be a felony, except for a wife whose husband had been beyond the seas for three years or had been reputed to be dead. incest was also declared to be a felony. it was defined as marrying or having carnal knowledge of one's grandparent, parent, sibling, mother's brother or sister, father's wife, mother's husband, son's wife, daughter's husband, wife's mother or daughter, or husband's father or son. fornication was given a punishment of three months imprisonment and until security was obtained for one year for good behavior. it was defined as carnal knowledge of a virgin, unmarried woman, or widow. a common bawd or one keeping a brothel or bawdy house was to be whipped, set in the pillory, marked in the forehead by a hot iron with the letter: b, and then imprisoned for three years without bail and until there were sureties for good behavior for life. the second offense was felony without benefit of clergy. there was to be no corruption of the blood. however, juries were reluctant to convict for adultery and incest. there shall be no profane swearing or cursing of forfeit by a lord s., a baronet or knight s., an esquire s., a gentleman s. d., and all others s. d. there is a double fine for the second offense. for the tenth offense, the offender shall be bound by sureties for good behavior for three years. a person equating himself or another with god or not believing in god shall be imprisoned for six months without bail. for the second offense, he shall be banished from the nation. no longer shall people be punished for nonattendance at church on sunday or days of thanksgiving, but may be at some other place of prayer, preaching, reading, or the scriptures. hawkers and ballad singers have been libelous, so are to be whipped as common rogues and then dismissed. also, their ballads and pamphlets are to be confiscated. vagrant, idle, loose, dissolute and disorderly persons and fiddlers in inns, alehouses, and taverns are to be punished as rogues, vagabonds, and sturdy beggars, that is, whipped. in , treason against parliament was defined as writing, printing, or declaring that the government is tyrannical, usurped, or unlawful; or that parliament is not the supreme authority of the nation; or plot, contrive, or endeavor to stir up or raise force against the government. attainder for such would not work corruption of the blood. treason to the protector was defined the same as it was to the king. army deserters are to be corporally punished or executed. fellable wood and underwood, but no timber trees, may be cut within miles of london because fuel is needed, especially by the poor. this will be supervised by overseers appointed by parliament. no one may import foreign hats or hatbands to relieve that industry in england. as of , certain food could not be exported when the prices of such exceeded a stated amount. for instance, pounds for a gallon barrel of beef, d. for a pound of bacon, pounds and s. for a gallon barrel of butter, and s. for pounds of rye, pease, or beans. the customs for such items was more for foreigners than for natives, for instance s. for natives and s. for foreigners for a barrel of beef. butter for sale must not be corrupt and be properly weighed. one must obtain a license to buy wheat or other grain and put it to sale in meal or flour or else forfeit three times the value. all books of the law, writs, pleadings, and patents shall be in english or else forfeit pounds. no deer may be killed or else forfeit pounds, half to the informer and half to the poor. interest may not exceed pounds for a loan of pounds yearly as of . no goods are to be imported from america, asia, or africa except in english ships or else forfeit all goods and the ship, one half of which goes to the one who seizes the goods and prosecutes. none may be imported from europe except in english ships or ships from the country of origin of the goods. no salt fish may be imported or exported but in english vessels. there is a pound reward for discovery of highwaymen and burglars or persons who break and enter into houses and there use violence. no cart or wagon or carriage on the road may be drawn by more than five horses or six oxen and a horse except for military vehicles. notice of intended marriages shall be published once a week for three weeks in a public meeting place called church or a public market place next to church. exceptions to the marriage shall be noted by the register and considered by the justice of the peace before the marriage is performed. the words used shall be: "...promise to be unto thee a loving and faithful husband..." and "promise to be unto thee a loving, faithful, and obedient wife...". there shall be no cock-fighting because it disturbs the peace and usually is accompanied by gaming, drinking, swearing, and quarreling. anyone challenging or accepting a challenge to duel shall be imprisoned for six months without bail, and must acquire two sureties for a year. anyone fighting a duel in which death ensues, shall be banished for life. horse races were forbidden in for six months to discourage mischievous plots and designs by enemies of the state. the penalty was forfeiting the horse. attendees were to be brought to justice. as of , a house or building built within ten miles of the walls of the city of london not having at least four acres had to pay a fine of one year's rent. all houses within london or westminster or the suburbs must be brick or stone, and built straight up without protruding into the street or else forfeit pounds. as of persons living extravagantly without visible estate or calling may be made by justices of the peace to acquire sureties for good behavior or go to gaol. they would also be sent to the house of correction to work for three months for the first offense and for a time specified by the justice of the peace for the second offense. anyone winning at betting or playing at cards, dice, tennis, and horse races shall forfeit double his winnings. excluded from pardon were buggery with man [sodomy] or animal [bestiality], carnal ravishment of women, and bigamy. husbands were responsible for their wives' oaths and fathers for their daughters'. drunkenness was much punished. judicial procedure the protector is the supreme magistrate of the commonwealth, with power to pardon all crimes, except murder and treason. parliament was no longer a court. use of the torture was proscribed in . in , the justices were given a salary of , pounds and forbidden to take fees or rewards. they also got tenure, thus freeing them from government pressure. now civil justice was honestly dispensed and justices were learned and honest. the jurisdiction of admiralty court was defined to include: ships and vessels with tackle, apparel and furniture thereof; repairing, victualing, and furnishing provisions of ships and vessels for sea; all cases of bottomry [ship-owner indemnified if the vessel were lost, but paid over a substantial share of the profits if it reached its destination safely], contracts beyond the seas concerning shipping or navigation; charter, parties, contracts for freight; bills of lading; mariners wages; damage of goods on board ships; and damage by one ship to another including by anchors or want of laying buoys. it did not include contracts between merchants. military tenure was abolished in . chapter the times: - the monarchy was restored and charles ii came to the throne. the episcopacy of the bishops and the book of common prayer were restored. this book retained all its ceremonies, despite opposition by the presbyterians. the confiscated royalist, church, and crown lands were ordered to be restored, and most were. charles ii was presented with the traditional rights of choosing his own privy council, ministers of state, and justices; making foreign policy; controlling the armed forces; and approving statutes. he was also presented with the power to call and dismiss parliament, but later, in , a statute required that parliament be held at least once every three years, to avoid royal schemes of non-parliamentary government. the house of lords was reestablished and there were again bishops in it, though fewer than before - about / instead of about / . there were peers for the next century. the house of commons was elected in the usual way, but without a king's writ. the commons was composed mostly of royalist established church members. its leaders were important members of the king's privy council. the feudal tenures of the crown, such as knights' service, were converted into free socage. they were discharged of homage, reliefs, escuage, and aids. charles relinquished purveyance, wardships, and forfeitures of marriage. in return, parliament granted him a fixed yearly income of , pounds from excise tax on beer, cider, and tea. several hundreds of dissenter ministers and school teachers were ejected from their positions, but later those who were not baptists were returned by statute of parliament because baptists did not believe in an established church. charles ii was an easygoing and kindly man and hard to ruffle. he had a weariness in the folly of men and a cynical disbelief in human virtue. his wit and great sense of humor softened many a potentially tense situation. his restoration to the throne brought in a time of enjoyment of life in reaction to the puritanism of before. at his succession, the elected parliament was oriented toward royalty and the established church. he was voted an income of , , pounds a year. he also sold many of the last crown lands. but he always had great debts, which he described as a "desperate but not serious" situation. this was in part due to his generous maintenance of several successive mistresses and more than about a dozen illegitimate children. his entourage also included physicians, surgeons, a librarian, a poet laureate, chaplains, painters, an historiographer, musicians, a royal composer, and an astronomer. charles even joked on his deathbed that "i am sorry gentlemen, for being such an unconscionable time a-dying." the day of charles ii's restoration and birthday was designated as a day of thanksgiving when all were to participate in prayers and the singing of psalms at some church or other suitable public place. charles initiated the return of sunday afternoon wrestling, archery, music, and dancing. theaters reopened with actresses playing women's parts, an audience only in front of the stage instead of around it, a drop curtain, and painted two-dimensional scenery. actresses were allowed pursuant to royal proclamation so that plays should become "useful and instructive representations of human life" rather than "harmless delights". charles went to plays regularly. actresses were assumed to be mistresses of patrons in return for their jobs, but one fourth were actually chaste women married to actors. comedies were the preferred plays. courtesans were sympathetically and even admirably treated in plays, which mocked all restraints and glorified immorality with the exception of pornography, which was banned. bad actors were hissed off the stage. henry purcell wrote religious music for churches, ceremonial music for the english court, and theater music for english opera. opera made music a vehicle for human emotions. the gentry sang to the lute and danced to string instruments. many owned and played musical instruments. humble people had folksongs and instruments like the pipe and tabor for dancing. singing in parts was popular in town and country. in john banister started the first regular series of public concerts in his house. there were lovely formal gardens in which to walk, to see fireworks, and to buy the new ice cream. charles did much garden and park planning and let the public enjoy the royal st. james park. he loved hunting too and had the royal forests replenished with deer after poaching during the cromwell era had greatly reduced their numbers. charles ii introduced sailing and yacht racing for pleasure. he also participated in and promoted horse racing. the breeding of thoroughbred horses began with breeding to arab mares. gelding horses were now preferred over stallions. there were trotters, cart horses, and some "fast" race horses. boxing (with no gloves nor ring) was a national sport. ice skating with iron blades was popular. valentine's day was celebrated. italian puppet shows played in london. dress returned to elaborateness. gentlemen wore cavalier-style long wigs with curls, despite the church's dislike of wigs. this could hide the short hair of a former puritan roundhead. in , charles introduced a new mode of inexpensive court dress which was made entirely from english textiles. this gave rise to gentlemen's weskits to below the knee with a coat of the same length and full sleeves. stockings and shoes replaced the long fitted boots. charles set a court tradition of men wearing a scarf tied around the neck. ladies often wore their hair in masses of ringlets with little corkscrew curls on each side of their heads, and later piled their hair up elaborately on their heads. they wore satin or silk dresses fitted at the waist with a pointed bodice, and full skirt. the shoulder line was low and the sleeves full and open at the front with fastenings of jeweled clasps. the only fast colors were reds, blues, purple, and yellow, but not green. they kept their hands warm in muffs. women wore perfume, rouge, and face patches. some women put on a lot of make-up. many men dressed effeminately with rouge, face patches, heavily scented clothing, muffs, and many ribbons of many colors. the facial beauty patches were in shapes such as stars, crescent moons, and hearts; they diverted attention from the common smallpox scars. there were oxford shoes, which laced up the front through eyelets. the members of the house of commons dressed like the gentry and assumed their manners. there was exaggeration in all complimentary and ceremonial language. the gentry were beginning to be thought of as a "squirearchy". they owned about half the land of the country. the population according to class was as follows: n: number of households. t: titles, degrees. social ranks, h: household size, and y: household yearly income in pounds. ___n_______________t______________________________s___________y__ temporal lords , spiritual lords , baronets knights , esquires , gentlemen , persons in greater offices and places , persons in lesser offices and places , eminent merchants and traders by sea , lesser merchants and traders by sea , persons in the law , eminent clergymen , lesser clergymen , freeholders of the better sort , freeholders of the lesser sort . , farmers . , persons in liberal arts and sciences , shopkeepers and tradesmen . , artisans and handicrafts , naval officers , military officers , common seamen , laboring people and out-servants . , cottagers and paupers . . , common soldiers , vagrants, as gypsies, thieves, beggars as can be seen, agriculture is still the most common occupation. great houses now had a central dining chamber for dining, with sets of suites, usually for couples, around it. each suite had an ante-chamber and/or drawing room, and then a bedchamber, off of which there was a servant's room and a closet [cabinet]. no longer did personal servants bed down in the drawing room or outside their master's door or in a truckle bed at his feet. the servant's room was connected to a back staircase for use by servants. secret guests also used it. the csbinet room was the innermost sanctum for privacy and gave its name to the later cabinet of the government. there were fewer servants and they were of a lower social status than before. they were often sons of merchants, clergymen, and army officers. gentlemen no longer advanced by service to a great man, but instead through grammar school and university education, commerce, the law, or the armed services. this change came about because the state now maintained reasonable law and order. there were more female servants, who were paid less to cook and to clean as well as do laundry and nursing. servants were kept more in the background, preferably out of sight. the elaborate ceremonial ritual with sewer, carver, and cupbearer was gone. a butler replaced the yeomen of the buttery, ewery, and pantry, and footmen began to wait on the table at which the lord, his lady, and other couples sat. servants no longer had meals in the hall, which now had a grand staircase up to the dining chamber. the highest servants, the officers: clerk of the kitchen, clerk of the check [comptroller], head cook, butler, and groom of the chambers, and female housekeeper ate in the gentleman-of the-horse's room, although at a separate table. the kitchen staff ate in the kitchen. the footmen, underbutler, porters, coachmen, grooms, stable-boys, gardeners, maids ate in a servants' room. the steward was no longer the chief household officer, but had a room near the kitchen. the bulk of the servants slept in the basement or subordinate wings of the house. great houses of nobles had more rooms, such as a chapel, library, parlors, dressings rooms, and galleries; there was a variety of architectural floor plans. the structure of a noble household of an earl was as follows: the chief official was the receiver general. he had financial responsibility for the household and prepared accounts for the household and for the tenants' estates. these were checked by an auditor. the receiver general was often the son of a country gentleman and had a salary of pounds raised to pounds with longevity. he had a servant and an assistant. if married, he had a house on the property. there was perhaps an attorney on retainer who were paid for a certain number of hours per week or month. the gentleman of the privy purse kept the accounts of the family and bought them apparel and toiletries. he was in close personal attendance upon the earl. his salary was pounds a year. besides the receiver general and the gentleman of the chamber, the tutor and chaplain had the closest personal contact with the family. the lady had a gentlewoman with a maid servant. the receiver general supervised most of the staff. there was a steward of pounds a year. he supervised a clerk of the kitchen and a house bailiff of pounds a year. the bailiff had responsibility for the produce of the estate, e.g. the gardens, the deer park, and the fish ponds. under the clerk of the kitchen was the cook man and kitchen boys, the latter of whom were clothed and fed, but not paid. the steward also supervised the pound yearly porters, who kept the gates; the watchmen outside; and the head housekeeper, usually a woman of to pounds yearly. she supervised the laundry maid and general maids, who spent much of their time sewing. the steward was also responsible for the wine cellar. a dozen footmen belonged partly to the house and partly to the stables and received to pounds yearly. they waited on the lord and lady in the house and accompanied them in travels and did errands for them. the gentleman of the horse supervised the stables, coach, dogs, kennels, and pound yearly huntsman. boy pages also worked partly in the house and partly in the stables. they were clothed and fed, but not paid. the head gardener received pounds for tending the flowers, vegetables, and fruit trees. he had casual workers as needed to assist him. the steward was also responsible for the london house. here there was a housekeeper, a watchman, and a pound a year gardener, all there permanently. when the lord was there, bargemen were employed for his barge. the salaries for the family estate totaled about pounds a year. sometimes married sons' or daughters' families stayed for months at the family estate; then they would pay for their part of the food. well-to-do people drank imported tea and coffee, sometimes from porcelain ware, and usually after dinner or supper. most tea leaves were brewed first for the family and guests and a second time for the servants; then they were given to the servants' relatives or friends. queen mary encouraged the fashion of collecting chinese porcelain. the rich had red or black and gilt lacquered cabinets and cupboards. oak gave way to walnut, with its variegated surfaces. there were grandfather clocks. some fireplaces now had cast-iron firebacks. stuffing began to be upholstered to woodwork benches. chairs were taller in the back. ladies did needlework to cover them and also made patchwork quilts. cane seats came into fashion. from the spring of to the end of there was a great plague, mostly in london. it was the last and worst plague since the black death of . it lasted over a year and about one-third died from it. households with a plague victim were walled up with its residents inside to reduce contagion, and then marked with a red cross. church bells tolling their requiems clanged in ceaseless discord. the mournful cry "bring out your dead" echoed in deserted streets. at night groups of people shoveled the corpses into open graves. to prepare for this revolting task, they often first became drunk out of their senses. people acquired wild beliefs in hope of avoiding the plague. for instance, at one time it was thought that syphilis would prevent it, so maddened hordes stormed the brothels. at another time, it was rumored that the plague could be burned out of the air, and all one day bonfires blazed outside every door and people sweltered in the heat. other localities posted sentries on the road to keep londoners out of their areas to prevent the plague from spreading there. since sneezing was thought to be the first sign of a person getting the plague, it became common to ask god to bless a person who sneezed. in london, statistics were collected on the number of plague victims and their places of death to try to determine the cause of the plague by correlation, a new method. this was a natural sequent to merchant john gaunt's book "natural and political observations made upon the bills of mortality", which compiled yearly vital statistics from which to analyze, for instance, causes of death due to particular diseases. it reached conclusions such as that fall was the most unhealthy season; females had longer life spans than males; and infant mortality was very high. in a fire destroyed three-fourths of the city of london. the blazing buildings were so hot that people with leather buckets of water, hand squirts, and manually operated water-pumping machines could not get near them. there was a lot of noise from falling buildings. panic and desperation were widespread. there was a lot of crying out and running about distractedly. people saved some of their possessions by burying them or removing them from the fire's path as they moved to different lodgings. the streets were full of carts piled high with furniture and merchandise. the thames river was thick with heavily laden barges. melting lead from st. paul's church ran down the streets in a stream. the tower of london, upwind of the fire, was saved by blowing up surrounding buildings. eventually the wind abated and the fire was put out. a fire court with royal justices was created to offer settlement terms about property that were free, fair, fast, and final. army tents and supplies, and soup kitchens sustained the citizens in the fields. after the fire, buildings had to be brick or stone rather than wood, except for doors and windows. also, more plaster and tile was used. all roofs had to be of tile or slate, rather than thatch. there was a general use of tile for roofing. about , came slate for roofings. all buildings had to be at least two stories high, with flat facades rather than overhanging upper floors. they had to have wide brick walls around them to avoid the spread of fires. many streets, squares, and alleys were professionally planned, after the example of inigo jones, who had continued his town planning with lincoln's inn field's open square surrounded by houses with iron balconies. another example was leiscester square. main streets had to be wide enough to stop a fire. the street selling that had caused so much congestion was removed to new market places. the massive rebuilding of london ended the monopoly of the building trade claimed by the mason's company. astronomer and geometrician christopher wren designed and built a new st. paul's cathedral and many churches in london, thus becoming england's first architect. he worked up from a square base through all sorts of shapes to a circular double dome on top. the fire put an end to whitehall as a royal residence and st. james palace was used instead. but at least one fire hazard remained: the practice of lighting new fires by taking buckets of hot coals from one room or house to another. this was faster than the several minutes it took to use a tinder box to start a flame, i.e. striking a piece of flint upon a piece of steel making a spark which was dropped onto tinder and then blown upon. matches were invented in this period, but expensive and unsafe. nicholas barbon began fire insurance in the s. if fire broke out on an insured premises, the insurance company's firemen would come with leather buckets and grappling irons, and later small hand pumps. barbon also redeveloped many districts in london, tearing down old buildings without hesitation. he started the system of selling off leases to individual builders, who hoped to recover their building costs by selling their houses before they were completed and before substantial payments on the lease became due. entrepreneurial master-builders subcontracted work to craftsmen and took a large profit or a large loss and debt. aristocrats bought large parcels of land on which they built their own mansions surrounded by lots to be rented to building contractors and speculators like barbon. the houses built on these lots were sold and the underlying land rented. these rentals of land made the mansions self-supporting. barbon built rows of identical townhouses. sometimes houses were built on all the lots around a square, which had gardens reserved for the use of those who lived on the square. most of the new building was beyond the old city walls. marine insurance for storms, shipwreck, piracy, mutiny, and enemy action was also initiated. before the fire, e.g. in tudor times, the writing of risks had been carried on as a sideline by merchants, bankers, and even money lenders in their private offices and was a private transaction between individuals. london was residential and commercial. around the outside were tenements of the poor. from to , london's population had risen tenfold, while the nation's had only doubled. london went from % to % of the nation's population. in , london's population was about half a million. after , london's population grew at the same rate as the nation's. the first directory of addresses in london was published in . business began to follow the clock more strictly and many people thought of their watches as a necessity. london coffee houses, which also sold wine, liquors, and meals, became specialty meeting places. they were quieter and cheaper than taverns; for a penny, one could sip a cup of coffee by the fire, read the newspapers, and engage in conversation. merchants, stock jobbers, politician groups, soldiers, doctors and clergymen, scholars, and literary men all had special coffee house meeting places. notices and letters of general interest were posted therein. many merchants, brokers, and underwriters, especially those whose houses had been burned in the fire, conducted their business at their coffee house and used it as their business address. men in marine insurance and shipping met at lloyd's coffeehouse, which was run by edward lloyd who established it for this purpose in . lloyd provided reliable shipping news with a network of correspondents in the principal ports at home and on the continent and circulated a handwritten sheet of lists of vessels and their latest movements at his coffeehouse. the patrons cheered safe arrivals and shared their grief over ships lost. they insured their own risks at one moment and underwrote those of their friends the next. auctions of goods and of ships and ship materials which had been advertised in the newspapers were conducted from a pulpit in the coffeehouse. french wine was consumed less because of heavy taxation and spirits and beer were consumed more. the streets were alive with taverns, coffee houses, eating houses, and hackney coaches past p.m. at night. coffee houses were suppressed by royal proclamation in because "malicious and scandalous reports" defaming his majesty's government were spread there, which disturbed the peace and quiet of the realm. but this provoked such an uproar that it was reduced to a responsibility of the owner to prevent scandalous papers and libels from being read and hindering any declarations any false and scandalous reports against the government or its ministers. london air was filthy with smoke from coal burning. in the streets were lit with improved lights which combined oil lamps with lenses and reflectors. groups of householders combined to hire lighting contractors to fulfill their statutory responsibility to hang candles or lights in some part of their houses near the street to light it for passengers until : p.m., and later to midnight. in a monopoly was sold to one lighting company. in a body of paid watchmen was established in london. an office of magistrate was created and filled with tradesmen and craftsmen, who could make a living from the fines and fees. this was to supplement the unpaid justices of the peace. the public was encouraged to assist in crime prevention, such as being witnesses, but most policing was left to the parishes. crowds punished those who transgressed community moral standards, threatened their economic or social interests, or offended their religious or patriotic beliefs. often a crowd would react before the call of "stop thief" or the hue and cry from the local constable. pickpockets would be drenched under a pump. cheats would be beaten up. dishonest shops and brothels would be ransacked or destroyed. the most common targets were promiscuous women and pregnant servants. there were many highway robberies and mob actions in london. mobs in the thousands would turn out against the catholics, especially at times of unemployment and trade depression. working people still saw demonstrations and violence as the best way to achieve their economic goals, since strikes didn't work. for example, the silk workers used street violence to get protective legislation against imports and mechanization in . the manufacture of silk material had been brought to england by french workers driven from france. in , three thousand london silk weavers demonstrated outside the commons and east india house against the importation of raw silks by the east india co., and a couple months later, they attacked a house in the city owned by a gentleman of the company. in , heavy duties were imposed on the import of indian silks and wearing of indian silks was prohibited by statute. sometimes mobs would break open the prisons to release fellow rioters or take action against strike breakers or informers. parish constables elected by their neighbors could not control the mobs and stayed within their parishes. dueling was still prevalent, even though against the law. in london and westminster, it was hard to enforce the requirement that inhabitants keep the street in front of their house clean and store the filth until the daily raker or scavenger came with cart and dung pot. so a commission was made responsible for paving and keeping clean the streets, making and repairing vaults, sewers, drains, and gutters, and removing encroachments. it compensated those with encroachments of over years. it assessed inhabitants of such streets d. per square yard from the front of their building to the center of the street. women continued to empty their pails and pans outside their doors and did their washing on stools in the streets. there was a penalty of d. for throwing filth in front of one's house, and d. for throwing it elsewhere in the streets. scavengers and rakers could lodge their coal ashes, dust, dirt, and other filth in such vacant public places as the commission deemed convenient for accommodating country carts returning otherwise empty after their loads were sold. however, this system did not work because people would not pay their assessments. so there was a return to the former system of requiring citizens to sweep and clean the streets in front of their buildings twice a week and keep the filth until a scavenger or raker came. the penalty for not doing so was s. d., later raised to s. any one throwing coal ashes, dust, dirt, rubbish, or dung onto the streets or lanes incurred a fine of s. there was a fine of s. for hooping or washing any pipes or barrels in any lane or open passage or repairing coaches, sawing wood, or chiseling stones in the streets. pigs kept in or about one's house had to be forfeited. one way that people traveled was to be carried in sedan chairs held up by two horizontal poles with one man at the front ends and another man in back. there were so many sedan chairs and coaches for hire in london that the watermen lost business. all hackney coaches in london or westminster were required to be licensed and marked with their owner's distinctive mark so that complaints could be made. their maximum rate was s. for a hour day, and d. for the first hour and d. for every hour thereafter. licensed coachmen were not allowed to practice any other trade. the coaches paid the commission pounds yearly. hay sold along the road brought d. per load, and straw d. per load, to the commission. there had to by paid d. for every cart load of hay sold at the hay market and d. for every cart of straw, to go towards paving and repairing the hay market street. overall, agriculture improved. fields that would have been left fallow were planted with new crops which restored indispensable chemical elements to the soil. at the same time, they supplied winter food for stock. the size and weight of animals for slaughter grew. there was so much stock breeding that it was more economical for a family to buy meat, milk, and eggs, than to maintain its own animals. there was an explosion in the growing of beans, peas, lettuce, asparagus, artichokes, and clover. the demand for food in london and other urban areas made enclosure for crop cultivation even more profitable than for sheep grazing. the government made no more attempts to curtail the enclosure of farm lands. the number of enclosures grew because copyholders were not successful in obtaining the legal security of tenure. but most land was not enclosed. in in the county of essex, the wages for mowing one acre of grass were s. d.; for reaping, shearing, binding one acre of wheat s.; and for threshing a quarter of wheat or rye s. wives participated with their husbands in general agricultural chores and did the dairy work including making cheese. every householder kept chickens because egg production was cheap, their market price being only s. for a hundred. wives also took care of the gardening work and traditionally kept for their own the cash that came in from garden, dairy, and poultry products. a wife made jellies and preserves when the fruit trees, bushes, and vines were bearing. imported sugar enabled fruit to be preserved as jam in jars sealed with a layer of mutton fat to make them airtight. she was likely to concoct medications from her herbs. meat had to be smoked or salted when there was not enough fodder to keep animals alive through the winter. she saw to it that the soap was boiled and the candles molded. she cooked the daily meals, did the washing, produced cloth for the family's use, and sewed the family's clothing. women had less work and lower pay than men. since most cottages had a spinning wheel, spinning work was readily available to wives. in the s, a female weaver or spinner was paid - d. per day. a domestic servant, who was usually female, was paid - s. a year. men in the trades objected to competition from lower-paid women. aristocratic ladies actively managed their family's household and estates. the only work available to a high middle- class woman who was waiting to get married was to be a governess in another household or a lady-in-waiting to a gentlewoman. children often worked; this was recommended so that they were under the direct supervision of their parents rather than getting into mischief in the village. the mother typically mingled severity with gentleness, but the father did not dare to err on the side of leniency. discipline was by whipping. children were treated as little adults. the lack of a conception of childhood innocence even extended to the practice of adults to tell bawdy jokes in their presence or play with their children's genitals. about , the royal society of london for the promotion of natural knowledge was founded by charles ii, who became its patron. it was formed from discussion groups of the new experimental philosophy. it included the baconians formerly at oxford and cambridge, who were ejected at the restoration, and a group of gresham professors of geometry and astronomy. the royal society met at gresham college. its goal was to compare ideas in mathematics and science and identify specific aims of science. it published scientific reports to make its findings generally known. this was a great improvement over the private correspondence among scientists, which was limited by the use of various languages. charles himself had his own laboratory and dabbled in chemistry and anatomy. similar societies were formed in many places in the world. theologicians warned that scientific research was dangerous. but it's advances improved agriculture, manufactures, medicine, surgery, navigation, naval architecture, gunnery, and engineering. issac newton was a genius, who in his childhood designed and built model windmills, water wheels, water clocks, sundials, and kites. he came from a family which had risen from the yeomen ranks to the gentry. for a few years after graduating from cambridge university in , he secluded himself in the countryside to study. here, using the work of john wallis, he formulated the binomial theorem that expands (a+b) raised to the nth exponent power, where n is an integer. he also worked with numbers that had exponents that were fractions, unending decimals, or negative numbers. certain patterns of numbers, such as the sum of doubling each number in a series as in: + + + +...never terminates; the series is infinite. he then developed the notion of a number being the limit of the summation of an infinite converging series of a pattern of numbers, such as the limit of +( / )+( / )+( / )...= . by considering the state of motion of a mass-point in an infinitely short time under the influence of an external force, he developed rules for finding areas under algebraic curves [integration], such as the hyperbola, and finding tangents to algebraic curves [differentiation], which he recognized as inverse processes. that is, differentiating the integral of a function results in a return to that function. newton discovered that colors arose from the separation, rather than a modification, of white light, that is natural sunlight. he did this using a prism to dissect the white light into its spectrum of constituent colors and then using a prism and lens to recombine the colors to reconstitute white light. the spectrum was the same as that of a rainbow. he determined the angle of refraction of each color by beaming white light through a prism, and then through a hole in a board which isolated one color, to another prism. when he discovered that all colors reflect from a mirror at the same angle, he invented and built the reflecting telescope, which used a parabolic concave mirror and a flat mirror instead of a convex lens, thereby eliminating the distortions and rainbow coloring around the edges that resulted from the refraction of different colors at different angles. he deemed a ray of light to consist of a rapidly moving stream of atomic particles, rather than robert hooke's pulses or christian huygens' waves, because shadows showed a sharp boundary between the light and the absence of light. he reasoned that if light was made up of pulses or waves, it could spread around obstacles or corners as sound seemed to do. he approximated the speed of sound by timing echoes in corridors of various lengths. newton was methodical and combined the inductive and deductive methods of inquiry, first making observations, and then generalizing them into a theory, and finally deducing consequences from the theory which could be tested by experimentation. this was the first clear expression of the basis of the "scientific method". he carried mathematization of data from experiments as far as possible. newton theorized that the same gravity force that pulled an apple down from a tree extended out to the moon to hold it in its orbit around the earth. he saw a connection between these movements by imagining a cannon on a mountain shooting a series of cannonballs parallel to the earth's surface. the first shot has only a tiny charge of explosive, and the cannonball barely makes it out of the muzzle before falling to the ground. the second shot is propelled by a larger charge, and follows a parabolic arc as it falls. the next shots, fired with increasingly more propellant, eventually disappear over the horizon as they fall. lastly, with enough gunpowder, a speeding cannonball would completely circle the earth without hitting it. by extrapolating from these ever faster projectiles, he opined that the moon was held in its orbit by the same earth force that operated on the projectiles. he correlated the moon's orbit with the measured acceleration of gravity on the surface of the earth. he put various substances with different masses and weights into the shell of a pendulum and observed that the pendulum had the same period [time for one oscillation] and fell at the same rate as free-falling objects. then he formulated the idea that the ultimate agent of nature was a force acting between bodies rather than a moving body itself. gravity did not act in proportion to the surfaces of bodies, but in proportion to quantity of matter. gravity penetrated to the very center of all bodies without diminution by the body. gravity's force extended to immense distances and decreased in exact proportion to the square of the distance. newton opined that an object moves because of external forces on it rather than by forces internal to the object. these are his three laws of motion. ) he connected the concepts of force and acceleration with a new concept, that of mass. mass is a quantity intrinsic to an object that determines how it responds to forces, such as the force of gravity. the greater the mass of a body, the stronger the force of gravity on it, and the more difficult it is to get it moving. he found that the acceleration of a body by a force is inversely proportional to its mass, and formulated the equation that force equals mass multiplied by acceleration. so if a force acts on a planet, it produces a change in velocity that is proportional to the force and in the same direction as the force. ) his law of inertia is that any body, persists in its state of rest or of uniform motion in a straight line, unless affected by an outside force. ) his next law is that when a body a exerts a force on a body b, then b also exerts a force on a which is equal in amount but opposite in direction. this means that forces that operate between different parts of a planet produce no net force upon the whole planet, so that the mass of a planet can be treated as if it is concentrated at a point. his law of gravitation explains how the whole universe is held together. this law holds that every object in the universe attracts every other object with a single gravitational force that is directly proportional to the product of their masses and inversely proportional to the square of the distance between their centers. newton had at first accepted the cartesian system of celestial vortices of aether that swirled the planets and comets around their orbits. he determined that kepler's law that areas were swept out in equal times implied that gravity acts in the direction of a line between the planet and the sun. the gross features of the universe and kepler's observations led to his recognition that the attraction between two bodies decreases inversely in proportion to the square of the distance between them. only one kind of force would satisfy kepler's requirement that the sun was a focus of an ellipse and still be consistent with kepler's law that the square of a planet's period was proportional to the cube of its mean distance from the sun; that was the inverse square law. then he came to accept robert hooke's hypothesis that planets are kept in their orbits by the combination of an attractive power of the sun and of motion in a straight line that was tangential to their orbits. from astronomical data, he calculated this centripetal acceleration of each planet towards the sun to be proportional to the inverse square of its distance from the sun. he also calculated the "centrifugal" accelerations in a straight line. his experiments showed that the centripetal force in a circular orbit was equal to the mass of the body multiplied by the square of its velocity, all divided by the radius of the circular path. he used calculus and differential equations to determine centripetal forces of elliptical orbits, where the distance from the sun, the velocity, and the acceleration were variables. newton showed that his single gravitational force could account for the way free-falling objects descend to the ground, the parabolic trajectory of projectiles, the path of the moon in its orbit around the earth, the course of the tides every twelve hours, the lower densities of the earth's atmosphere at greater heights, the paths of jupiter's moons, the paths of comets, and the elliptical paths of the planets in their orbits around the sun. this determination discredited the previous belief that invisible angels moved the planets. newton proved from his law of gravitation and his three laws of motion the truth of kepler's laws of elliptical planetary motion. newton demonstrated from data collected from the comet of that comets moved according to his law of gravitation. he showed that the path of a body traveling within the gravitational force of the sun is a circle, an ellipse, a parabola, or a hyperbola. he used the concept of a common center of gravity as a reference point for other motions. the fact that the center of gravity of the solar system was within the body of the sun verified that the sun was indeed at the center of the solar system. newton deduced that the tides were created by the rotation of the earth with bulges of water on the earth's surfaces that were closest and farthest from the moon. the moon "pulled" the water nearest to it with a greater force than average. it "pulled" the water farthest from it with a force weaker than average. these two moving bulges created two tides a day. newton's "principia mathematica philosophiae naturalis", was published in . the established church denounced it as being against the scripture of the bible. newton did not agree with the established church on many points, such as the trinity, and was considered a heretic. he had his own interpretations of the bible and doubted the divinity of jesus. but it was accepted for dissenters like newton to qualify for full civil rights by maintaining an outward conformity and taking the sacrament in the established church once a year. newton was given a royal dispensation from taking holy orders as prescribed by the rules for tenure of fellows of his college at cambridge university. he did believe in a god who created the universe and who had a ubiquitous presence in all space. when catholic king james ii tried to have a catholic monk admitted to the degree of a master of arts at cambridge university without taking the oath of adherence to the established protestant church, so that he could participate in the business of the university, newton was active in the opposition that defeated this attempt. as a result, he was elected to parliament by cambridge. when olaus roemer, a danish astronomer, was applying newton's laws to the paths of the moons of jupiter to make a table of eclipses of jupiter's moons for use in determining one's longitude, he noticed that the eclipses were five hundred seconds ahead of average time at that time of year when the earth and jupiter were on the same side of the sun, and five hundred seconds behind average time six months later, when jupiter was on the other side of the sun. he reasoned that this difference was due to the light from jupiter's moons taking more time to reach the earth when jupiter was farther from the earth, i.e. on the other side of the sun. he concluded that light does not travel instantaneously, but at a certain speed. from the fact that it took seconds for light to travel the diameter of the earth's orbit, he calculated its speed in . in , christian huygens formulated the law of conservation of momentum [mass multiplied by velocity], which held that when objects collide, they may each change direction, but the sum of all their momenta will remain the same. huygens also recognized the conservation of what was later called "kinetic energy", which is associated with movement. he developed laws of centrifugal force for uniform motion in a circle. he derived the formula for computing the oscillations of a simple pendulum. in , he posited the theory that light consists of a series of waves. it states that all points of a wave front of light in a vacuum may be regarded as new sources of wavelets that expand in every at a rate depending on their velocities. he thought this a better explanation of bending and interference of light than newton's particle theory. in , robert boyle, called the father of modern chemistry, defined an element as a substance that cannot be further decomposed. he distinguished an element from both a mixture, which is easily separable, and a compound, which is not easily separable. he used an air pump he developed and a glass jar to create a confined vacuum space for experiments to find the properties of heat, light, and sound. he noted that burning objects such as candles and coal, when placed in the receiver of his air pump, went out after a time although air was still present. he opined that animals were dependent upon a fresh supply of air to live. he studied the relationship between the volume, density, and pressure of air and gases. he proved by experiment that the volume of a gas at a constant temperature varies in inverse proportion to the pressure applied to the gas. since gas is compressible, he opined that gases must be composed of discrete particles separated by void, and also that basic physical properties were due to motions of particles, or atoms, which was an ancient greek conjecture. this cast doubt on the long-held belief that everything was composed from four basic elements: air, water, fire, and earth. boyle's laboratory at oxford was denounced by the oxford clergy as destroying religion. in , the steam pressure cooker was invented by denis papin from france. he invented the atmospheric engine in . robert hooke helped boyle build his air pump. hooke was thirteen when his father, a minister, died. hooke was a genius with innate mechanical skill and was an able mathematician. he applied a spiral spring to regulate the balance of watches. a lord financed him as a gresham lecturer of geometry for pounds a year. in , he used a pendulum to measure the force of gravity and showed that the center of gravity of the earth and moon is a point describing an ellipse around the sun. in , he explained the twinkling of the stars by irregular atmospheric refractions. he formulated the theory that light is composed of pulses. hooke's law states that the amount an elastic body such as a spring stretches out of shape is in direct proportion to the force acting on it: its tension. he invented the odometer, a wheel to measure distances. he constructed an arithmetical machine. he invented the universal joint, which can move in many angles. his book of drawings of microscopic animals is a classic. he proposed that fossils can be used as a source of information about the earth's history. hooke became rich from his inventions, but this was not known until his death, when thousands of pounds were found in his iron chest. in , wallis postulated the correct theory of impacts of inelastic bodies, based on the principle of conservation of momentum. in , he introduced the first graphical representation of complex numbers. royal astronomer and genius edmond halley, the son of a soap maker, studied tides, magnetism, and the paths of comets and stars. he went on voyages to study the heavens from different positions, thereby laying the foundations of physical geography. he showed that the stars change in position in relation to each other. with newton's help, he calculated the orbit of a comet he saw in to be elliptical rather than parabolic and then proved it was the same comet that had appeared in and , indicating it's regularity; it was then named "halley's comet". however, the church of england still embraced the idea that comets and eclipses were evidence of god's wrath. greenwich observatory was built in . halley used a barometer to measure the density of the atmosphere and related its readings to elevations into the atmosphere and to weather. he determined that the cause of the tropical trade winds was the sun warming the tropical air at the equator, causing it to rise and move north as it was replaced by cooler air from the north. this body of air was deflected by the rotation of the earth. he illustrated the tropical winds with the first meteorological map. he made a descent in a diving bell, which was used to try to reach wrecked treasure ships. he studied fossils and perceived them as remnants of living beings that had died long ago, and imagined a succession of living things. halley surveyed the tides and coasts of the british channel for the king in . in , apothecary nicolas lemery divided substances into mineral, vegetable, and animal. he wrote a dictionary of pharmaceuticals. john ray and francis willoughby were friends who traveled together to study plants and animals respectively. john ray started the science of zoology with his edition of francis willoughby's "ornithology" on birds and his own "history of fishes". he also attempted the first scientific classification of animals in his "synopsis of quadrupeds". ray compared anatomies and experimented on movements of plants and the ascent of sap. he knew that fossils were remnants of old animals. ray first suggested the concept of species in classification of animals and plants. he opined that the goodness and wisdom of god was shown not only by the usefulness of animals to man's uses as taught by the church, but also by the adaptation of animals to their own lives and surroundings. the vast array and dispersal of animals found by world explorers all over the world cast doubt on the biblical story of noah putting two of every kind of animal on an ark. the science of botany began with ray's "history of plants" and the researches of robert morrison, who was charles' physician and keeper of his gardens. nicholaus steno, a danish physician, diagrammed six levels of stratification on the earth's surface and demonstrated in that layers of strata of rock are always deposited with the oldest layers on the bottom and the youngest layers on the top. this began the science of geology. he argued that shifts in the earth's strata caused the formation of mountains. he identified fossils as ancient creatures. the idea that fossils were remnants of dead animals existing before man conflicted with the religious idea that adam's fall began sin and caused death. the idea from fossils that existing species of animals were modifications of predecessor animals conflicted with the religious belief that noah's ark had preserved all the varieties of animals. john aubrey described stonehenge, thus founding prehistoric archaeology. he thought it to be a druid temple. the telescope and compound microscope, which has an objective lens and an eyepiece lens for producing a wide range of magnifications, were further developed. the cellular basis of life was discovered and described by robert hooke. nehemia grew, the son of a grammar school master who became a physician, observed and drew plant anatomy, including leaves, flowers, fruits, seeds, ovules, pollen grains, and stamens. he was the first to observe the existence of plant sexuality. italian marcello malpighi, a physician, used the new compound microscope to study human skin, spleen, kidneys, and liver and also compared the livers of several types of animals. he discovered capillaries linking the arterial and venous circulation in the lungs. dutchman anton van leeuwenhock, a cloth manufacturer who made microscopes to inspect the quality of cloth, turned them to use in understanding the life cycles of mites, lice, and fleas. he correctly described human blood cells. when he found what he described as tiny animals (bacteria, protozoa, and rotifers), he sent clear descriptions of them to the royal society in london as proof against the theory of spontaneous generation, which held that lower forms of life could arise from nonliving matter. this started the science of bacteriology. with the discovery of the egg in the female reproductive system, the status of women was lifted. physician thomas willis, son of a farmer, dissected brains of men and animals to study the anatomical relations of nerves and arteries. excess urine had been associated with a wasting disease. willis identified diabetes mellitus with excess of urine that was sweet. physician thomas sydenham, son of a gentleman, observed epidemic diseases of london over successive years, thus founding epidemiology. he also furthered clinical medicine by emphasizing detailed observations of patients and maintaining accurate records. he wrote a treatise on gout and identified scarlet fever. he introduced a cooling method of treating smallpox. but he still relied on the big three treatments: bloodletting, purging, and sweating. bloodletting was to draw off bad blood so that it could be replaced by a better fluid. another treatment used was cupping, whereby a vacuum was created by heated glass cups to draw blood to the surface of the skin. john locke performed one of the first successful operations draining a kind of abscess of a man's liver. it was common for people who felt ill to take a laxative and rest at home. in , physicians opened the first dispensaries, which gave treatment and medicine together, to take business away from their rivals: the apothecaries. london's apothecaries were released in from jury service and service as constable, scavenger, or other parish or ward office because it was necessary that they be available to attend the sick at all times. peruvian bark which had quinine as its alkaloid had been introduced as a proven cure for the ague, a fever with chills usually due to malaria, in . the english ceased to believe in holy wells, but went to spas such as bath for treatment of disease. there was more bathing because private homes in towns now had indoor baths. the public baths came into disuse. for childbirth, only rich women were attended by physicians. most physicians used talismen such as the eagle stone at deliveries. caesarian section almost always led to the death of the mother. midwives were licensed by the church and could baptize babies. jane sharp wrote "the midwives book" with anatomical illustrations. women over thirty had fewer children and the last child born was at an earlier age than before. this was in part due to birth control such as coitus-interruptus, long breast-feeding of a current child and/or the taboo against sex if the wife was still breast-feeding. rich women often employed wet-nurses to breast- feed their babies. babies seldom thrived, or even survived, without out a regular supply of breast milk. john locke, an oxford don, physician, and son of an attorney, expressed a view that the monarchy was not based on divine right, but rather on a contractual relationship with the people, who were reasonable, free, and equal by nature. this idea was first adopted by revolutionists and then became accepted as orthodoxy. also, he articulated the right of resistance, the supremacy of legislative assemblies, and the responsibility of rulers to answer to their subjects. he theorized that men turn to forming a civil government when there is a need to protect accumulated property from some unreasonable men. this, along with the protection of life and liberty, was the primary function of government, before royal pleasure, national pride, or foreign conquest. he wrote theories on the interaction of supply, demand, interest rates, rents, coinage, and foreign exchange rates. he believed that interest rates should be the natural ones determined by market forces rather than by the legislature, especially if there was an attempt to lower interest rates below their natural rate, which was not only undesirable but easily circumvented. he thought that attempting to legislate contrary to natural economic laws, e.g. prices, was doomed to failure from unexpected consequences. he agreed with most mercantilists that by maintaining a large inflow of precious metals through consistent export of surpluses in foreign trade would lead to low interest rates, increased trade, increased capital stock, high employment, and high prices, and therefore a healthy economy and enrichment of the nation. locke thought that knowledge comes primarily from experience, i.e. sensation and reflection, rather than from innate ideas placed in the mind by god, so that observation and experimentation are necessary to find truth. he theorized that propositions of truth have probability rather than certainty. probable propositions included opinion, belief, and revelation. his "thoughts on education" was a great book on the formation of character. locke also advocated the use of a large field for inventing labor-saving and economic devices for agriculture. he espoused freedom of thought in "letters on toleration" and wrote "an essay concerning human understanding", which described how the mind functions in learning about the world and which attempted to reconcile science and christianity. he was a great admirer and friend of newton and they shared religious views. he was also a member of the royal society. at oxford and cambridge universities, there were the most enlightened theologians, classicists, orientalists, philologists, mathematicians, chemists, architects, and musicians. there were professors of anglo-saxon, hebrew, and arabic. john locke's influence caused modern philosophy to supercede traditional scholasticism. there were no more disputations to qualify for degrees. some of the students were the sons of noblemen and sat at meals with the heads, tutors, and fellows of the colleges. most students were the sons of landowners, clergymen, professional men, or prosperous men of business. they were known as the gentlemen commoner students. the few poor students were known as servitors and paid for their education by menial work. corporal punishment ceased. instead there were fines, suspension, and expulsion. fellows of colleges had common rooms for drinking and smoking together as they had done in taverns outside college walls. the king had authority to grant licenses in sell or give land in perpetuity, to encourage founding and augmenting colleges and schools. the two universities were vested with the presentation of benefices that had belonged to papists. english nonconformists such as presbyterians were excluded from oxford and cambridge universities, so they were educated at glasgow in scotland. grammar schools were blamed for the past civil war by educating too many people above their station, so ecclesiastical control now stifled them. a few dissenting schools were established. charity was given to schools for children of the poor for placement as apprentices, but not to educate them above their stations. in the s, about % of males in london were literate. by , illiteracy was a special characteristic of the poor instead of a characteristic of the vast majority of common people as in . fountain pens came into use. many books written tended to be about the author's experiences, for instance samuel pepys' "diary", gilbert burnet's "history of my own times", john evelyn's lifelong diary with vivid descriptions of striking events of the day, and nonconformist celia fiennes' description of her tour of england on horseback. there were many political biographies. historians did not yet study history as a continuous process, but narrated self-contained stories to instruct by example. william fleetwood wrote about economic history in "chronicon preciogum". george hicks put together a "thesaurus" of the northern languages. thomas hyde wrote on ancient persian religion. john spenser compared jewish rites with those of other semitic people, thus starting comparative religion. richard bentley, william's librarian, wrote a "dissertation" on the ancient greeks. he compared the ancient greek life with modern life. he also confuted atheism on the newtonian system. a translated version of "critical history of old testament" by frenchman richard simon identified the old testament as history instead of divine revelation. john milton wrote "paradise lost", which retells the biblical story of the creation and the fall of adam and eve against the backdrop of satan's rebellion and expulsion from heaven and emphasized god's justice in spite of everything. the poem deals with the puritan struggling against evil and the problem of sin and redemption. it has a cold and severe conception of moral virtue and stoical self-repression in its characters. there is no sympathy with the human condition. reading this book made the english more serious, earnest, and sober in life and conduct and more firm in the love of freedom. john bunyan wrote "pilgrim's progress" in which a tinker takes a journey to find the everlasting city of heaven and on the way meets people who try to harm him. but he derives strength from his adversities. the journey is a metaphor for the christian soul trying to find salvation. it is puritan in its sympathies and has insights into human nature. john dryden wrote on large social, political, and humanistic issues, often by political satire. william congreve wrote plays such as a comedy on manners. william wycherley wrote cynical satires and portrayed folly, affection, and vice. john vanbrugh wrote plays satirizing london high society and social institutions. john toland wrote "christianity and mysterious" on deism. "puss in boots", "red ridinghood", and "cinderella" became available in print. there were many female poets, bookwriters, and playwrights. anne finch, later vicountess conway, wrote the philosophical book: "principle of the most ancient and modern philosophy" to reconcile the new science with christian belief. in it every creature had a body and a spirit. mrs. aphra behn wrote "oroonoko", one of the first novels. basua makin, governess of the little sister of charles ii wrote an essay to revive the education of women, arguing that women's activity in wartime showed that they were fit to be educated. elizabeth elstob, who studied teutonic languages, was one of the founders of women's education. mary astell proposed a college for women. some women painted portraits. there were rigid censorship acts from to . the first required that no one could print a book without first registering it with the company of stationers of london and having it licensed by appropriate authority: common law books by the lord chancellor or the lord keeper of the great seal, affairs of state and history books by the secretaries of state, heraldry books by the earl marshall or kings of arms garter, university books by the chancellor or vice chancellor of either of the universities, and all others including divinity, physics, and philosophy by the archbishop of canterbury, or bishop of london. books could be imported only into london and not sold until approved by the archbishop of canterbury or bishop of london after being opened and viewed by a scholar appointed by these bishops and a representative of the company of stationers. if heretical, seditious, scandalous, schismatic or otherwise dangerous or offensive, the importer could be punished. no one could print or import copies of any books without consent of the owner with right by letters patent. the penalty for not doing so was to forfeit s. d. for each such book, of which the king would receive one half and the owner one half. printers had to set their own name to the books they printed and also the name of the author or else forfeit such book. only freemen of london who were members of the company of stationers could sell books. the company of stationers had the authority accompanied by a constable to search all houses and shops where they knew or had "probable reason" to suspect books were being printed. they could search houses of persons of other trades only by special warrant. they could examine books found to determine if they were licensed and, if not, to seize them. justices could imprison offenders. the first offense by offending printers was to be punished by suspension from printing for three years, the second offense by permanent disallowance from printing, fine, imprisonment, and corporal punishment not extending to life or limb. this statute was enforced by frequent prosecutions, such as of publishers of pornographic books. the only newspapers to appear between and were official government sheets. but in the requirement to license publications, including newspapers, was abolished, thereby giving some freedom to the press. locke had argued for this freedom, stating "i know not why a man should not have liberty to print whatever he would speak and to be answerable for the one just as he is for the other..." in the first daily newspaper in the world came into existence in england. the stationer's company monopoly of printing also ended in . printing was not regulated and no longer criminal just because it was unauthorized. printing could now be done in other places than london, york, oxford, and cambridge. the rich got richer and the poor got poorer. many successful merchants and manufacturers bought landed estates and established a line of country squires or baronets or even peers. the fashion started in the nobility and the richest mercantile families that their wives should become ladies of leisure. for workers though, there was constant underemployment. in periods of economic crisis industrial workers lost their jobs. much work was seasonal. anyone who could work most of the time was fortunate. laboring and out- servants, who comprised one fourth of the population, and cottagers and paupers, who comprised another fourth of the population, had to spend more than they earned. the poor rate collected from the parishes for the cottagers and paupers was d. per week. there was an agricultural depression that was deepest in the s after the collapse of a boom. it was the only bad depression experienced in peace time. there was famine in . any person receiving relief from any parish and his family members cohabiting with him was required to wear a badge with a "p" which identified his parish. this was to differentiate them from idle, sturdy, and disorderly beggars who were not entitled to relief. there were more poor people and, despite the poor laws, many became rogues or vagabonds or starved to death. many went from parish to parish to build cottages and consumed all the wood there and then went to another parish. so the parishes were allowed by statute to remove any person coming to settle in any tenement under the value of ten pounds who was likely to be chargeable to it. they were then removed to the last parish were they had resided for at least forty days. excepted were people temporarily moving to another parish to work at harvest time. the overall effect was to decrease the mobility of people. but a later statute permitted greater movement of poor people by allowing those who were poor for want of work to go to another parish where labor was wanted. they had to bring a certificate of their present parish membership to the new parish, where they could settle if they rented a tenement worth ten pounds a year or served in a parish office. later, settlement had to be given to inhabitants paying its parish's rates, and unmarried inhabitants hired for one year, and apprentices bound by indenture. but parishes were displeased with the requirement to give settlements to these people because they feared they would become poor and need parish assistance, thereby increasing the rates to be paid. parish poor houses were converted into spinning schools to obtain an income. parishes of large towns were combined to set up large workhouses, where the poor could be set to unskilled manufacture, but the managers lacked the character and education to make them work. because prisoners often died before trial and the poor prisoners became instructed in the practice of thievery in prison, they were set to work on materials provided to them at public expense. no parish was rated at more than d. per week for such. the president and governors of corporations oversaw rogues, vagrants, sturdy beggars, and idle or disorderly persons working in corporations or workhouses. assessments were made for building and repairing gaols in order to maintain the health and safe custody of the prisoners. also, gaol fever, a virulent form of typhus, was so prevalent in the large prisons for criminals and debtors that it frequently spread through the adjacent towns. during some assizes, it killed sheriffs, lawyers, and justices. in , london lands were taxed for the relief of orphans. churchwardens could seize the goods and chattels of putative fathers and mothers deserting bastard children. from to , societies for the reformation of manners prosecuted poor people for moral offenses. all hackney coaches and stage coaches in all the realm became required to be licensed. the turnpike system came into use. tolls were paid for road upkeep and repair by private companies. the local parishes ceased to have this responsibility. john ogilby wrote the first road book based on actual surveys of the roads. stage coaches cost a shilling for every five miles and went - miles a day. the trip from london to oxford was twelve hours. the company of coach and coach harness makers was founded with the consent of the king. the body of a coach hung from the frame by leather braces. one axle pivoted for turns. plate glass was used in the windows. rivers improved so that most places were no more distant from navigable waters than a long day's haul on land. the several post offices were put under the authority of one postmaster general appointed by the king for the purpose of speed and safety of dispatches, which were carried by horseback. one sheet letter going less than miles cost d., and more than miles, d. when the army was disbanded after the restoration, its officers and soldiers were allowed return to their trades and their apprenticeships without serving the usual seven years. parishes were required to provide for poor and maimed officers and soldiers who served charles i or charles ii. the royal hospital founded by charles as a home for veteran soldiers opened in . greenwich palace was converted to a hospital for seamen and their widows and children to encourage men to become seamen: mariner, seaman, waterman, fisherman, lighterman, bargeman, keelman, or seafaring man in the king's navy. also, children of disabled seamen were to be educated at the expense of the hospital. charles retained one regiment from which he started a small standing army, which slowly increased in size ever after. the army was primarily mercenary, as it had been in medieval times, with officers buying their commissions. colonels were the proprietors of their regiments and captains were the proprietors of their companies. the soldiers were ill mannered, swearing and cursing and stealing, sometimes from peoples' homes, and intimidating people with their swords. the bayonet was invented to attach onto a gun, which were muzzle-loading with a match lock. so pikemen with their long spears became obsolete. hand grenades and small explosive bombs came into use about . explosives were also used in mines. mines for coal became deeper as coal replaced the use of increasingly expensive wood charcoal for brewing and for brick, glass, and china manufacture. flooding of coal, tin and copper mines became a problem. in , thomas savery invented the miner's friend, a practical atmospheric steam engine without a piston. there was resort to many devices to fund wars. the land tax was still the primary tax. the customs and excise taxes were often extended to more goods and wares. sometimes there were duties imposed on marriages, births, and deaths. also, hawkers, peddlers, and other trading persons going from town to town to other men's houses on foot or on horse carrying wares had to buy a license. there were also loans from privileged companies such as the bank of england, east india co., and the south sea co. commissioners were appointed to take and state the account of all money in the public revenue. this discouraged the prevalent corruption of government officials and thereby the people were encouraged to pay their taxes. the goldsmiths loaned money to the king and to private persons and to the exchequer. receipts from goldsmiths for storage in strong boxes had become a de facto paper currency. but when the goldsmiths had no more money to lend, the bank of england was founded in under whig auspices to provide money for war. it was the first institution to issue notes in excess of its total deposits. however, it was not allowed to lend money to the crown without the consent of parliament. it was incorporated as the first english joint-stock bank and had about , shareholders. these original subscribers were individuals from london from many walks of life, including well-to-do tradesmen and about % of whom were women: wives, widows, or spinsters. not many corporations were original subscribers. holders of at least pounds could vote, of pounds could be directors, and of pounds could be governor. the bank issued notes payable to bearer and discounted bills, but these were not legal tender. it lent at % to the crown and occasionally to corporations. money was also borrowed by offering annuities on single lives. this was the first time the government borrowed directly from the public on a long- term basis. in there was inflation due to over issue by the bank because of inexperience, pressure from government, and the bank's greed for business. after a dividend of % in , the next year there was no dividend and so the bank stock price fell. in , five pound and ten pound short term bonds were sold to the public. also in that year was the first run on the bank. this occurred two days after clipped money lost currency; people wanted the new recoined money, but the mint had not supplied the bank with sufficient supplies. interest instead of cash was given for notes. cash was short for months. the bank's credit was much shaken. it was then given a monopoly so that its notes would not have competition. thereafter, its dividends were good - about % per year. because of its monopoly, its dividends were about % above the current going rate of interest. about this time, exchequer bills, with interest, were started by the exchequer and circulated by the bank of england. they were frequently endorsed many times by successive holders. the bank simply took over from the goldsmiths its main everyday business of deposit, with a running cash note [cashier's note, specie note, cash note], which was payable on demand and normally did not bear interest; and a drawn note [precursor to the check, but not on special paper]. the bank gradually convinced many of its clients to use its "check" [cheque] paper when drawing. the check paper was unique to the bank and embellished with distinctive scroll work to serve as an obstacle to fraud. over time the running cash note tended to be for round sums of at least twenty pounds and multiples of five pounds. the bank of england had a monopoly on issuing notes in the london area. country banks arose and issued bearer notes payable on demand and interest-bearing notes in their areas. the bank of england gave to its depositors the service of paying annually to a designee without further order. a decision of the common law courts held that bills of exchange (written orders to pay a given a sum on a given date) were transferable to other people by successive endorsements. so long distance payments no longer had to be made in coin, with all the dangers of highway robbery. the financial revolution of the s meant that the merchant elite could invest in government bonds or company bonds at - %, or london leases at %, as opposed to income from landed estates, which was under %. shareholders were no longer personally liable for company losses. interest on loans was no longer considered sinful as long as it was not oppressive. the greater ability to borrow spurred the growth of capitalism. all brokers and stock jobbers in london and westminster of bank stock, bank bills, shares and interests in joint stock must be licensed by the mayor, which shall necessitate their taking an oath to exercise their office without fraud or collusion to the best of his skill and knowledge as of . this is to avoid the collusion of fixing values to their own advantage. compilations of tables of mortality originated the science of life-statistics. this made life insurance possible. but it was administered by ad hoc offices rather than companies and was not reliable in making payments. william petty made a statistical study of economics and determined that the basic values of an economy derive not from its store of treasure, but from its capacity for production. trade was studied empirically by statistics by new offices such as the inspector general of imports and exports. charles instituted a hearth tax of s. per year in , with constables and officers authorized to verify the number of hearths and stoves in houses. it was repealed in because it could not be enforced except by exposing every man's house to be entered and searched at pleasure by persons unknown to the people, which was oppressive and a badge of slavery. by bribes, charles built up a body of support in parliament which could be relied upon for a majority. they came to be called "tories" by their opponents. "tory" had been a term of abuse for irish catholic bandits. the tory and whig groups were known by their disagreement over the authoritarianism of the crown. the tories were sympathetic to the doctrine of divine right and favored a doctrinally high church. the tories represented landed property and the established church, and usually wore blue in contrast to the purple of royalty. many royalists became tories. the whigs refused to accept the sacrosanct character of the monarchy. the whigs opined that government depended upon consent of the people and that the people had a right of resistance. they subordinated the crown to parliament. the whigs represented the dissenters and the mercantile classes, and often wore red. many former puritans became whigs. "whig" had been a term of abuse for scots presbyterian rebels and horse thieves. the gout and venereal disease were common among political leaders. a primitive condom just introduced to the aristocracy from france helped deter syphilis, but was uncomfortable and unreliable. under charles ii, the treasury as a supreme financial body separated from the exchequer as a depository of revenue. a gold guinea coin was issued. from , government policy was controlled by specific appropriations. money bills had to originate in the commons, and could not be amended by the house of lords. boards became independent of the king's privy council and answerable to the secretary of state. in the s, charles compelled some of the livery companies in london to give up their charters to him and he called in many corporation charters of boroughs whenever some light excuse could be found to justify it. this was done by the use of the writ of quo warranto [by what authority] before a court. in london he had the tory mayor revive an ancient custom of selecting a sheriff by drinking to him at the annual feast. two tory sheriffs were installed into office. all these actions gave the king a voice in selection of the officers of london and boroughs, since royal commissioners would then determine who the officers would be. this was to assure london's representation in parliament by crown loyalists as london had been whig. it also allowed influenced selection of sympathetic jurors. criminal seditious libel was brought into the common law courts in , when benjamin keach was tried for writing a book containing contradictions of the doctrine of the established church. he wrote against infant baptism and asserted that laymen might preach the gospel. the justice intimidated the jury to find him guilty. he was sentenced to be fined, to spend two hours in the pillory in two successive weeks, and his book to be burned before his face. he was to be imprisoned until he found sureties for his good behavior and renunciation of his doctrine and for his future appearance in court. juries were loath to find anyone guilty of seditious libel. james ii succeeded charles ii to the throne and fostered roman catholicism by appointments and by attempting to suspend laws unfavorable to catholics. he commanded all bishops to read in the churches his declaration of indulgence exempting both catholic and protestant dissenters from all penal statutes based on religion. seven bishops refused to obey and jointly petitioned him, stating that his action was illegal according to parliament. he prosecuted them for seditious libel in the petition. the jury found them not guilty. james discharged the two justices of the five who had rejected the seditious libel doctrine which had been created by the star chamber court. this roused the whigs and tories in turn to discharge him by joining in inviting protestants william of orange and mary to take the throne in his place. james was effectively chased out of england by william's advancing army in the glorious revolution of - , which took away the powers of final authority from the king, but without transferring them to any other body. a "bill of rights" stated that . -the king may not suspend laws or dispense with them without consent of parliament. . -the establishment of a court of commissioners and like bodies for ecclesiastical causes is illegal. . -the king may not levy money or extend an authorized levy without consent of parliament. . -subjects have a right to petition the king without prosecution. . -the king may not raise or keep a standing army within the country in time of peace without the consent of parliament. . -protestants may have arms for their defense as allowed by law. . -the elections of members of parliament should be free. . -the freedom of speech or debates or proceedings in parliament should not be impeached or questioned in any court or place outside of parliament. . -excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (so no more men were whipped to death). . jury selection should not be tampered with, and jurors who try men for high treason should be freeholders. . all grants and promises of fines and forfeiture of particular persons, before conviction, are illegal and void. . parliament should be held frequently for redress of grievances and for the amending, strengthening, and preserving of the laws. . all protestants may freely exercise their religion and the king will maintain the protestant religion and the law and liberty of the realm. the right of the peoples' representatives to select and depose the king and to change the order of succession was established. there was no divine right or hereditary right to the crown. an english monarch was created by an act of parliament. the king still called and dissolved parliaments, except that parliament continued for six months after the death of a king. from , parliament sat every year. freedom of speech for members of parliament was established by a resolution overturning a king's bench felony conviction of sir john elliot. by the act of settlement of , no officer or pensioner of the king could be a member of parliament. all resolutions by the privy council had to be signed by the members consenting to them. no one born outside the realm could be a member of the privy council or of parliament, or could have any civil or military office or place of trust, or any grants of land or tenements from the king. justices served during good behavior instead of at the pleasure of the king. after the glorious revolution, tories tended to accept of the whig principles of limited constitutional monarchy instead of rule by divine right. under william and mary, the ministers were first chosen by them but could be impeached by the commons and then removed by the parliament. the commons removed anyone who disagreed with them as soon as he made a mistake. but the king could pardon anyone convicted by parliamentary bill of attainder. this was inconsistent, so no one was allowed to plead pardon by the king in an impeachment by the commons. thus parliament gained control of who would be ministers. the glorious revolution favored the capitalists and the commercial magnates even though it had been started by the landed families, with whom they now intermarried. there were companies in the fishing, silk, baize [a coarse wool], sugar, rope, paper, iron, hardware, cutlery, gunpowder, saw milling, and pottery trades. these industries for manufacturing were organized on capitalist lines rather than being subject to guilds. that is, production was controlled by men with money and the means of manufacture. the largest pottery workshops employed about six men. one man shaped the pots, another made the handles and put them on, while the others did the decoration, the glazing, and the firing. new companies could be formed without royal or parliamentary consent. regulated companies declined. there were no more commercial monopolies. the merchant adventurers lost their last monopoly privileges and their entrance fees were abolished. their method of limiting the volume of their exports of english cloth to germany to keep up prices was obsolete. now they tried to capture the market by selling cheap. there were more joint-stock companies and on a larger scale. they also no longer restricted output to keep prices high, but geared to export many inexpensive goods. drinking of gin, which had first been made by a flemish physician, became popular under king william, who was dutch. the year of his accession, the gin monopoly ended. from the mid- s to , coal production increased fourteen times. sir ambrose crowley, an iron maker with coal works, established disability and medical benefits and pensions for his workers. the capitalist organization of the mining, glass manufacture, salt, soap, wire and other monopolized industries was made possible only by government support. salt and glass manufacture expanded. glass drinking vessels were in common use. mirrors of blown plate glass were manufactured in england. in , vauxhall glass works were opened with workmen brought from venice to blow their fine glass and make mirrors. some plate glass by casting was imported. plate glass was a large and strong glass piece, which was formed by the liquid glass being poured on a table. this glass was not distorted, so mirrors could be made perfectly reflective. then plate glass for coaches, mirrors, and windows became manufactured in england; this new industry was organized on capitalist lines. the domestic or "putting out" system came into use. in this system, the worker usually owned his own machinery and the capitalist owned the material, which he put out to the worker at home. the merchant manufacturer bought raw wool and had it carded, spun, woven, fulled, and dressed at his own expense. some farmers became spinners in the winter when outside work was impossible. the manufacture of nails was also done by this system. accordingly, the guilds and municipal corporations in towns ceased to control the recruiting, conditions of work, and pay of industries. only a quarter of towns had any organized guilds at all. the growing town of birmingham was not a chartered borough, so never was encumbered with guild regulations. overall, the guild and apprentice regulations were effectively enforced only in agriculture work. artisans became known as tradesmen. work was usually irregular, some seasonal. in bad years, when a worker had to borrow money, he used work tools, such as his loom, as security. in this way, one's work tools often became the property of a merchant. some merchant clothiers also owned a fulling mill and a shop where the cloth was sold. the capitalists first became owners of the materials, then of the implements, and then of the work places. but production was still confined to the known wants of its habitual market. men used to working at home were generally not inclined to go to work in a factory. so there was an assortment of unskilled factory labor, such as country people driven from their villages by the growth of large estates, disbanded soldiers, and paupers. they had to be taught, trained, and above all disciplined. smiths used trip hammers powered by watermills which turned axles with cams on them. they made iron gates, fences, balconies, and staircases with hammer, anvil, and chisel. cast iron was made by running liquefied metal into molds. this was harder but more brittle than the tough but malleable wrought iron. tinkers went from house to house to repair metal items such as pots and pans. the east india company had about half the trade of the nation. its shares were frequently bought and sold. it responded to anger over its semi-monopoly status by granting liberty to all english subjects below the age of forty to live in its indian settlements and to trade practically everywhere. bombay, india became subject to the east india company. charters gave the east india company the right to coin money, to exercise jurisdiction over english subjects, to levy taxes, to build and command fortresses, to command english and indian troops, to make peace and war, and to enter into alliances with indian rulers. the company always paid high dividends and the market price of its shares generally rose. pound stock was worth pounds in , pounds in , pounds in , and even up to pounds in , and then fell to pounds in . in a new charter for the company included loss of monopoly status by resolution of the commons. with this resolution, parliament assumed the right of regulating commerce, now no longer the king's province. thereafter the commons regulated trade with india and determined who could participate in trade there. political issues developed, which initiated corruption at elections by entertainment and bribes to candidates, which were later proscribed. the trade opened up to many more traders and investors. ordinary investors came to include women and quakers. the stock exchange was incorporated about . exports included grain, silk, metal wares, foodstuffs, lead, and tin. cloth and manufactures were exported to america. dyeing and dressing of cloth became the norm and undressed cloth exports fell sharply. imports included linen; flax; hemp; timber; iron; raw, thrown, and woven silk; wine; brandy; fruit; coffee; chocolate, served as a drink or used in cooking; cauliflower; and oil. from america came molasses, sugar, tobacco, and dyes. sugar was in great demand for tea, coffee, and chocolate. the east india company imported calico, silk, pepper, spices, china tea, potions, and saltpeter. tonnage of english shipping doubled by exports and imports increased % by . when there was a surplus of grain, it was exported. about , the king set up a board of trade of eight paid members and great officers of state, who nominally belonged to it, and a staff. this was to achieve a favorable balance of trade. for instance, it imposed tariffs to protect internal markets and put restraints on imports of goods producible in the country, e.g. live cattle, dairy products, and woolen goods. it also restricted the export of raw wool. england led the way in protectionist measures. parliament required an oath of allegiance to the new sovereigns william and mary from all those in public functions, including the clergy. by extending this rule to the clergy, parliament asserted a supremacy of parliament over the church. it also asserted a supremacy over the king by requiring all monarchs to take a coronation oath promising to govern according to the statutes, laws, and customs of parliament, to make judgments with law and justice in mercy, and to maintain the protestant religion established by law. england competed with other nations for land in the new world. carolina, named for charles ii, was colonized for commerce in . the episcopal church, an analogue of the church of england, was established there by law. the whole coast became english after war with the netherlands gave new york, named for charles ii's brother the duke of york, and new jersey to england in . presbyterians and baptists fled from religious tests and persecutions in england to colonize new jersey. for free passage to the english colonies, people became indentured servants, agreeing to serve the master of the ship or his assigns with a certain kind of labor for a term of a few years according to a written contract made before departure. also, various statutes made transportation to any part of america available to any person who would pay for his transportation, for a term of years, usually seven, as a new possible penalty for offenses. in , harvard college was founded in new england to advance literature, arts, and sciences, as well as to train ministers. some american colonists sent their sons to be educated at the inns of court in london. in , quaker william penn, son of an admiral, founded the colony of pennsylvania for quakers in a "holy experiment" in political and religious freedom. the king had granted proprietary rights to this land to him to discharge a crown debt to his father. when penn refused to take off his hat before king charles and asked why charles took off his own, charles, unruffled, replied that "it's the custom of this place that only one man should remain uncovered at a time". the pennsylvania charter of went beyond magna carta and england's law in guaranteeing right to counsel and giving a right to defendants to summon witnesses in all criminal cases. it gave penn absolute authority and he established liberty of conscience, i.e.freedom of religion, and freedom from arbitrary arrest. in , some quakers founded a small hospital in pennsylvania as an asylum for the insane, where they would be treated humanely. proprietary colonies, in which an individual or syndicate held under the crown a sort of feudal overlordship, were founded in america: namely, virginia, maryland, carolina, new york and new jersey in , and pennsylvania and delaware in . new hampshire was made a royal province in to cut off the expansion of massachusetts, which had been avoiding the trade laws. these colonies were distinguished from the corporate colonies of massachusetts, plymouth, connecticut, and rhode island, which made their own arrangements for internal government without a royal executive. charles persuaded the chancery court to declare the charter of massachusetts void; it was given a new charter in which made it a royal province. new york was made a royal province in . maryland's proprietor gave way to a royal governor in . soon all colonies except rhode island, connecticut, pennsylvania were royal provinces, with governors nominated by the crown. this bringing of union to the colonies was done for maintenance of order, to coordinate defense, and to enforce trade laws. in , the hudson's bay company was incorporated to engage in fur trade with indian trappers in the hudson bay and to find a northwest passage to china. in the founding of the "society for the propagation of the gospel in foreign parts" by the church of england created many missionaries in the colonies, where they called their churches "episcopalian". increase mather and his son cotton mather were puritan ministers in colonial boston. increase was for a time the president of harvard college and participated in obtaining the new charter of colonial massachusetts of . he and his son tried to maintain the principles of the puritan founders of massachusetts, which included the theories of diabolical possession and witchcraft. but the thought of presbyterians, anglicans, and baptists became influential also. in in the small town of salem, massachusetts, some hysterical girls showing strange spasms and sounds charged they had been bewitched by certain other residents. victims were deceived, flogged, or tortured into forced confessions and then excommunicated from the church. they were then hanged and their property confiscated. one man endured being pressed to death for refusal to plead so that his property would be inherited by his family rather than confiscated due to being convicted. eventually, some prominent citizens including judges were accused. then the more thoughtful people began to doubt the whole phenomenon and admitted error. the excommunications were revoked. cotton mather came to accept newton's science and advocated inoculation. he encouraged puritanism into a simpler piety and charity. this influenced american protestantism toward a generalized concern with good works, morality, and social leadership. the law treason to the king is to compass, imagine, or intend death or any bodily harm tending to death, or maiming or wounding, or imprisonment, or restraint as well as trying to depose him or levy war against him. also included is printing, writing, preaching, or malicious speaking. traitors shall suffer death and forfeiture as in high treason. the fine for having, buying, or selling clipped coins is pounds, one-half going to the informer, and one-half going to the king. the offender shall also be branded in the right cheek with the letter "r". he shall be imprisoned until he pays the pounds. no hammered coins are lawful. anyone except a smith in the king's mint making tools or presses or other machines that can make counterfeit coins or having such which were stolen from the mint shall be guilty of high treason. any malicious and willful burning or destroying of stacks of hay, grain, or barns, or killing any horses, sheep, or cattle at nighttime shall be felony and punished by transportation to the american colonies for seven years. any person apprehending a thief or robber on the highway will be rewarded pounds from the local sheriff, to discourage the many robberies and murders which have made travel dangerous. also, executors of persons murdered while trying to apprehend a robber shall have the reward. anyone killing, hurting, or taking away deer from any forest or park or other ground without consent of the owner or custodian shall pay a pound fine. this was later increased to pounds for hunting deer and pounds for wounding or killing deer, with the pillory for one hour on market day and gaol for a year without bail for those who couldn't pay. any person privately and feloniously stealing any goods, including horses, by day or night, in any shop, warehouse, coach stable, or stable, whether there is a break-in or not, and whether or not the owner is present, or anyone assisting or hiring such person may not have benefit of clergy. any person who apprehends and prosecutes such person is excused from having to serve in parish and ward offices. an offender being out of prison who informs against two other offenders who are convicted is to be pardoned. any person convicted of theft or larceny and having benefit of clergy is to be burnt in the cheek nearest the nose instead of on the hand. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. any sale of land or lease or estate of freehold or copyhold shall be in writing and signed. an interest in land given orally shall have only the force of estates at will. all contracts for sale of goods or merchandise for the price of at least pounds shall be in writing and signed by the parties or shall be accompanied by part payment or partial acceptance of the goods. this is to deter fraud. this statute caused many small freeholders, including yeomen, who paid rent by custom to be dispossessed. mortgagees can hold the land of any mortgagor who borrows money upon security of the land or obtains another mortgage without prior notice to the initial mortgagee. the mortgagor has six months to pay off the mortgage and all interest and charges or vacate the land and lose his equity therein. but a widow's dower will not be affected if she did not join with her husband in the mortgage. if rent is not paid in a reasonable time, the renter's goods and grain may not only be distrained, but sold. one coparcener [one person of two or more persons who inherit as co-owners of land] of a joint tenancy [land held that descends to the heir of a co-owner who dies] or tenancy in common [land held that accrues to the surviving co-owner if one dies] may have a court partition the property without the presence of other coparceners, because such coparceners are often difficult to find. this is to avoid wasting of land lying uncultivated and unmanured. after the intestate death of a father of any sons or daughters without wives or children of their own in the life time of their mothers, the mother and every brother and sister shall share equally except the customs of london and york shall not be affected. administrators have to make an inventory. they have to account on request by an interested person. they must be bonded by two sureties. executors and administrators of estates of deceased persons must pay the debts of the deceased person rather than waste or convert the goods and chattels to their own use. creditors may recover their debts from heirs or devisees of the will of a debtor. men gone beyond the sea who could not be accounted for were deemed dead after seven years, so their life estates could be terminated. whereas lawful games are not to be used as constant callings for a livelihood, and young people are deceived and debauched and their money taken, anyone "winning" money by deceitful or fraudulent gambling shall forfeit three times his "winnings". the making or selling of fireworks is forbidden or else forfeit pounds. firing or throwing such from one's house onto or across the street is a common nuisance with a penalty of s. this is to avoid the loss of life and of eyes. no more than people may petition the king nor more than people may assemble to present a petition to the king, because more has been tumultuous and disorderly. anyone may without fee set up a hemp business including breaking, hatchelling [separating the coarse part and broken pieces of the stalk from the fine, fibrous parts by drawing the material through long iron teeth set in a board], and dressing it; or a flax business, including making and whitening thread, spinning, weaving, making, whitening, or bleaching hemp or flax cloth; making twine or nets for fishing or treating cordage for tapestry or hangings, because the daily importation of such has in effect taken the work from the poor and unemployed of england. no sheep, wool, woolfells, shearlings, yarn, fuller's earth, or fulling clay may be exported as has secretly been done, so that the poor of the realm may have work. fishermen may sell their fish to others than fishmongers at billingsgate fish market because the fishmongers have forestalled the market and set their own prices. the buyers of such fish may resell them in any other london market by retail, except than only fishmongers may sell in shops or houses. no tanned or untanned skin or hide of any ox, steer, bull, cow, or calf may be exported because the price of leather has risen excessively and leather workers can't get enough raw material to carry on their trade and because poor people cannot afford leather items they need. the newly incorporated company of silk throwers (drew the silk off the cocoon) employs many of the poor, but others practice the trade, so an apprenticeship of seven years is required to practice the trade in the realm. winders or doublers who purloin or embezzle and sell silk from the thrower who employs him and the buyer of such silk shall make such recompense as ordered by a justice of the peace or be whipped or set in the stocks for the first offense. the regulation of the silk throwers company restricting the number of spindles to be worked at one time is voided because it has taken livelihoods away and caused foreign thrown silk [silk twisted from cocoons into thread] to be imported. buttons on garments must be made of silk, mohair, gimp, and thread and by needle to keep employed the many throwers, twisters, spinners, winders, and dyers preparing the materials for these buttons. no button may be made of cloth or wood. when a bill of exchange drawn to at least five pounds is not paid on demand at the time it is made payable, the person who accepted it may make a protest in writing before a notary public, which shall be served on the maker of such bill, who must pay it and all interest and charges from the date of the protest. but if a bill of exchange is lost or miscarried, another shall be given in its place. no one may take more than pounds in interest for a pound loan. persons seeking election to parliament may not give or promise money, meat, drink, entertainment, present or gift to any elector. because the gaols were full of people in debt due to the late unhappy times such as the london fire, all prisoners for debt were released upon taking an oath that they had no property over ten pounds nor had disposed or conveyed property to defraud creditors. creditors not wanting them released had to contribute to their maintenance in gaol. retailers of wine may not add to imported wines cider, honey, sugar, molasses, lime, raisin juice, or herbs. butter sold must be of one sort and not contain bad butter mixed in with good butter. butter pots must bear the name or mark of their potter. salt may be sold only by weight, to avoid deceit by retailers and wrong to buyers. no tobacco maybe grown in england because the colonies would be discouraged from growing it and the king would not receive customs from it. no goods are to be imported to or exported from america, asia, or africa except in english ships, with masters and / of the mariners englishmen. no manufacture of europe may be imported into any colony or territory except shipped from england in english ships manned by englishmen. as of , if bond is not given for colonial exports of sugar, ginger, tobacco, cotton, indigo, cacao nuts, or fustic [tree that yields a yellow dye] and other dye- woods going to england, a duty must be paid. as of , no colonial goods are to be imported or exported or carried from one colony to another, except in ships owned and built in england, ireland, or the colonies with the masters and three fourths of the mariners from such places. these navigation acts were strictly enforced. only persons with lands and tenements or estate worth over pounds per year or having a lease of at least years worth pounds per year and owners and keepers of forests or parks may have any guns, bows, greyhounds, hunting dogs such as setting dogs, snares, or other hunting equipment. these persons may kill hare, pheasants, partridges, and other game. gamekeepers authorized by justices of the peace may search houses and outhouses and seize unlawful hunting equipment. if hunting equipment or game is found in a house without good account to the justices of the peace, they shall impose a fine of s. to s., one-half going to the informer and one-half going to the poor of the parish. army officers or soldiers who desert or mutiny shall suffer death or such other punishment as decided by a court martial of senior officers rather than the usual form of law, which is too slow. seamen not showing up on board after notice shall serve six months without pay, but shall not suffer as deserters. seamen do not have to perform service in the army. pirates may be punished by death and loss of all lands and chattels. any person aiding, advising, or concealing pirates may be likewise punished. officers and seamen killed or wounded in the defense of a ship or who seize or destroy pirates may be paid by the owners an amount up to pounds per pounds of freight as determined by a group of disinterested merchants and the judge. the amount due to a man killed will be paid to his widow and children. this is to be done when the ship arrives in port. any person who informs of any combinations or confederacies planning to run away with or to destroy a ship shall be rewarded by the commander or master of such pounds for a ship tons or under, and pounds for a ship over tons. the trial may be in england or the american colonies, whose authorities may issue warrants for arrest of alleged pirates. deserters from ships, because they often become pirates, shall forfeit all wages. masters forcing any man fit to travel to stay on shore or willfully leaves him behind shall suffer three months in prison without bail. persons may mine for ores on their own land, but must turn it over to the king who will give compensation for it, including gold, silver, copper ( pounds per tun), lead ( pounds per tun), tin ( s. per tun), and iron ( s. per tun). by statutes of and , when goods have been carried off ships without customs being paid, the chief magistrate of the place where the offense was committed or the adjoining place, or the lord treasurer, or a baron of the exchequer may, upon oath, issue out a warrant to any person to enter, with the assistance of a sheriff, constable or other public official, any house, shop, cellar, warehouse, or room in the day time where the contraband goods are "suspected to be concealed", and in case of resistance, to break open doors, chests, trunks, or other packages and to seize such goods, provided that if the information whereupon any house is searched proves to be false, the injured party shall recover his full damages and costs against the informer by action of trespass. this was extended to the colonies in . the penalty for cursing or swearing by a servant, day laborer, soldier, or seaman is s. for others, it is s. the fine is doubled for the second offense, and tripled for the third offense. if an adult offender can't pay, he shall be put in the stocks for one hour. if a child offender can't pay, he shall be whipped by the constable or by a parent in the presence of the constable. the equity courts are now conceding limited proprietary rights to married women by enforcing premarital settlements or trust arrangements that designate certain property as a wife's separate estate and exempt it from control by the husband. such protective devices generally reflected a father's desire to shield his daughter from poverty and benefited only the landed aristocracy in practice. also, husbands are not allowed to punish and beat their wives as before. but the lower rank of men were slow to give this up. a wife could have the security of the peace against her husband. he could restrain her liberty only for gross misbehavior. in , the courts ruled that apprenticeships were necessary only for servants hired by the year, thus exempting most wage laborers. there were many variations in religious practices for statutes to address. the quakers and baptists were opposed to any state church. the independents and presbyterians accepted the idea of a state church. the members of the established church and roman catholics adhered to their version the state church as they had experienced it in the past. atheism had a bad reputation. in , the jews established the first synagogue in london. the privy council recognized their religious status as long as they were peaceful and obeyed the laws. they engaged in pawn-broking as well as money-lending. there were various statutes enacted over the course of time regarding religion, as follows: all ministers, school teachers, mayors and other town officials, including magistrates, were required to take the oaths of allegiance and supremacy [of the king over the church] or be removed from office. a great number of people refused to come to their parish church or other public place where common prayer and sacraments were administered and the word of god was preached according to the established church. the morning and afternoon sunday services with sermons, sometimes by guest preachers, continued. so factions and schisms developed. in response, the king changed the book of common prayer and its prayers were required by statute in to be read by some priest or deacon in all the churches and places of public worship wherever and whenever there was any preaching or lecturing. attendance at one's local parish church was never again required. attendance at the established church of england was never again required. nor was preaching or lecturing constrained. instead, a statute was passed in that: every person shall be pious and exercise religion publicly and privately on sunday. no work may be done or goods sold or else forfeit s. or the goods respectively. no one may travel or else forfeit - s. in a further statute of , because some ease to scrupulous consciences in the exercise of religion may be an effectual means to unite protestant subjects in interest and affection, protestant nonconformists who took the oaths, or declaration in the case of quakers, and a declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass were declared not liable for punishment in any ecclesiastical court by reason of their nonconformity to the church of england, except protestant dissenters meeting behind locked doors. but payment of tithes and performance of parish duties were still obligatory. non-conformist preachers had to subscribe to the tenets of belief listed in the first eighteen articles of religion, but were exempted from the articles on expounding inconsistencies in scripture, the traditions of the church, homilies, and consecration of bishops and ministers of the elizabethan statute and the statute on uniformity of prayers and sacraments of charles ii. as of , no nonconformist minister, i.e. one who endeavored any alteration of government either in church or state, was allowed to live or visit within five miles of any corporate town or any place where he had acted as minister or else forfeit pounds. persons not frequenting the established church were not allowed to teach in any public or private school or else forfeit pounds. by statute of , anyone at least sixteen years old who is present at any assembly, conventile [private meeting of religious dissidents to pray and expound scripture], or meeting under pretence of any exercise of religion in other manner than according to the established church of england at which there are at least five persons present shall be fined s. for the first offense and s. for the second offense. this does not include members of the same household meeting in their home. anyone who preaches or teaches at such a meeting shall pay pounds for the first offense, and pounds for further offenses. the householder who permits such a meeting shall pay pounds. a justice or justice of the peace or chief magistrate may break open doors and enter by force any house or other place where they have been informed of any such meeting and take persons there into custody for prosecution. this is to discourage the growing of dangerous seditious persons under pretence of tender consciences. religious nonconformity continued especially among the humble people. the penal statutes caused hundreds of these nonconformists to be put in gaol. from time to time, the king would release them and suspend these laws. sometimes, charles ii allowed dissenters to meet in private for worship if they got a license from him. religious gatherings grew in numbers, size, and geographical extent. dissenters were then allowed by statute to meet behind locked or barred doors. but they had to pay tithes and could be prosecuted in the ecclesiastical courts for not doing so. by statute, all congregations and assemblies for religious worship had to register with the local bishop or archbishop. disturbers of religious worship were required to find two sureties for the amount of pounds. quakers were active in the countryside. they were about one tenth of the population and did not believe in a state church. there were some quakers schools and some quaker workhouses to give work to the poor. for the reason that they met together in large numbers to the great endangering of public peace and safety and to the terror of the people, and because they had secret communications and separated themselves from the rest of the people and from the usual places of worship, a statute was passed in , that any quakers who assembled to the number of five or more under the pretense of unauthorized religious worship and any person maintaining that taking an oath before a magistrate was unlawful and contrary to the word of god or refusing to take a required oath was to forfeit pounds for the first offense or be imprisoned for months if he couldn't pay. for the second offense, the penalty was pounds or imprisonment for months with hard labor. the third offense required abjuring the realm or being transported to a plantation of the king beyond the seas. the policy of charles ii was to allow quakers to meet undisturbed, to keep their hats on before magistrates, and to not come to the parish church. but this policy was only partially adopted in the country. from , by statute, the quakers were allowed to affirm or declare instead of making the customary oath. many presbyterians became unitarians, who rejected the trinity of "father, son, and holy ghost" and doubted the divinity of jesus, but accepted revelation. this statute was then passed in : any person having been educated in or having at any time made profession of the christian religion who, by writing, printing, teaching, or advised speaking, denies the holy trinity, asserts that there is more than one god, or that the bible is not of divine authority, shall be disabled for any ecclesiastical, civil, or military office. the penalty for a second offense is being disabled from suing or pleading any action in any court, being guardian of any child, or executor or administrator of any estate, or receiving any legacy or deed of gift and imprisonment for three years without bail or mainprize. catholicism was always disfavored. catholic priests were executed with little evidence. at times, charles commuted the death penalty for them to banishment. sometimes there were effigies of the pope burned in the streets. such burnings were later banned. at times charles allowed catholics to attend mass. by statute of , all civil and military officers and king's officials must take the oaths of supremacy and allegiance and take the sacrament of the established church of england or be incapable of office. they also had to make a declaration that they believed that there is not any transubstantiation in the sacrament of the lord's supper, or in the elements of bread and wine, when they were consecrated. this is to prevent dangers from papists. as of , no one may be a member of parliament if he has refused to take the oaths of allegiance and supremacy and the declaration that they were not catholic, did not adore the virgin mary or any saint, and did not go to mass. papists were made to pay higher taxes. every temporal and spiritual person, corporation, and guild had to pay taxes to subsidize the king in the amount of s. d. for every pound's worth of personal property and money. but papists had to pay s. d. for such. persons and corporations having land worth at least s. yearly, had to pay s. for every pounds' worth. but papists and aliens had to pay s. for such. but charles' successor, king james ii was catholic and gave many offices to catholics. this prompted a reaction against papists and more statutes restricting them. after james ii was chased out of england, a statute of required suspected papists in london to make a declaration that they were not catholic, did not adore the virgin mary or any saint, did not go to mass, or else stay ten miles outside of london. excluded were tradesmen and manual workers, who had only to register. all papists had to forfeit their arms and any horse worth more than pounds. also, no king or queen or spouse of such could be a papist, but had to make the same declaration as members of parliament, and join in the communion of the established church of england. as of , a person who was serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk, or notary had to take the oath of supremacy and allegiance. as of , papists who kept a school or tried to educate the young were threatened with perpetual imprisonment. also, popish parents were prohibited from forcing their children who were inclined towards protestantism to become catholic by refusing them suitable maintenance. as of , a reward of pounds was offered to any person who apprehended a popish bishop, priest, or jesuit saying mass. also, no papist was allowed to buy land. judicial procedure after the restoration, all legal decisions of the commonwealth and protectorate were confirmed subject to a right of appeal. the star chamber was not restored, and parliament assumed its control of the press. the king's bench succeeded to most of the star chamber's jurisdiction. no longer could the privy council influence criminal cases and the general supervision of legal processes through the star chamber. the high commission court was not restored, but church courts were, but with depleted powers. they accepted subordination to the common law courts. because the church's administration was inefficient and corrupt and its punishments inadequate, they gradually lost their power to the common law justices and justices of the peace. they had virtually no authority over laymen. they could still punish heresy, but lost jurisdiction over the law of libel and slander, which then were transformed by the civil courts, and over prostitution and scandalous lewdness. local ordinances for suppression of brothels, which were run by madams, were founded on breach of the peace. in , the death sentence was taken away from the church courts. in , church sanctuary was abolished. the county courts faded into insignificance, as the justices of the peace took on more jurisdiction. in , new justices were issued patents with "at pleasure" instead of "during good behavior" describing their tenure. charles ii and james ii frequently dismissed justices not favorably disposed to the crown. in , they were to have fixed salaries instead of the profits of justice. by statute of , justices' commissions were to be made with an established salary determined by parliament and a tenure to last during good behavior. they could be removed only by the address of both houses of parliament. this gave them independence from the king. their tenure lasted for the life of the monarch. as of , no man could be held in prison but on a charge or conviction of crime or for debt. every prisoner on a criminal charge could demand as a right from the court of the king's bench the issue of a writ of habeas corpus which bound his gaoler to produce the prisoner and the warrant on which he was imprisoned for review as to legality. this forced trials to be speedy, which they had not hitherto been. now it was impossible for the crown to detain a person for political reasons in defiance of both parliament and the courts, as charles i had done. the writ was suspended in times of war and domestic unrest: , , . in , william penn was arrested for sedition for delivering a sermon in london, contrary to the statute that only the church of england could conduct meetings for worship. the jurors would not convict him, so were gaoled and fined by the justices. the jurors filed a writ of habeas corpus in the court of common pleas, which held in their favor. thereafter the english jury had full independence to decide verdicts. by court decision of , jurors were held not to be responsible to the justice for their verdict. after , hearsay was inadmissible as evidence, which coke had recommended. the old system of original writs was abandoned, and the general concept or a wrong to person or property took its place. a person who was sergeant at law, counselor at law, barrister, advocate, attorney, solicitor, proctor [supervisor of students taking an eexam], clerk, or notary in the courts had to take the required oaths of allegiance and supremacy. as of , persons outlawed could appear by attorney as well as in person to argue reversal of such outlawry, except in cases of treason and felony. as of , persons accused of high treason where there might be corruption of the blood or for misprison [concealing knowledge] of such treason had to be taken before a grand jury for indictment within three years of the offense. those indicted or outlawed for such were given a copy of the whole indictment, but not the names of witnesses, at least five days before trial in order to prepare their defense. they could have a copy of the panel of jurors at least two days before trial. they could be represented in their defense by not more than two counsel learned in the law and assigned by the court. their counsel had free access to them at all reasonable hours. they could make proof through lawful witnesses under oath. in a trial of commoners for their lives, a jury of twelve freeholders had to all agree on acquittal or conviction. in a trial of a peer, the others peers in parliament determined the outcome by a majority vote. jurors were required to have at least pounds income from freehold land or rents in fee, fee tail, or for life. this increase in the quality of the jury enabled it to better discern the issues in dispute. jury sympathy was determined by the sheriff who chose the jury. so if a sheriff was popularly elected, as in london, he chose jurors who favored individual and corporate liberty. if the king selected the sheriff, he chose tories, who supported the crown. issues of bastardy or lawfulness of marriage had to be tried by a jury. the civil suit of trespass on the case branched into assumpsit [a promise], trover [to recover goods converted to the use of another], deceit, negligence, and libel and slander. the latter supplements bad words punished by the local courts and defamation punished by the church courts. trover becomes the normal mode of trying the title to personal property and goods as the courts oblige the defendant to answer the charge of conversion without permitting him to dispute the loss and finding of the goods by the plaintiff. this is an example of the initiation of a suit by a writ for trespass on the case: "the king to the sheriff &c. as in trespass to show: wherefore (e.g.:___) he fixed piles across the water of plim along which, between the humber and gaunt, there is a common passage for ships and boats, whereby a certain ship, with thirty quarters of malt of him the said a, was sunk under water, and twenty quarters of the malt of the price of one hundred shillings perished; and other wrongs &c. as in trespass." this is an example of a writ for trespass on the case in assumpsit: "the king to the sheriff greeting &c. as in trespass to show: wherefore whereas he the said x undertook well and competently to cure the right eye of the said a, which was accidentally injured, for a certain sum of money beforehand received, he the same x so negligently and carelessly applied his cure to the said eye, that the said a by the fault of him the said x totally lost the sight of the said eye, to the damage of him the said a of twenty pounds, as he saith, and have there &c. wherefore whereas he the said x undertook to make and build three carriages for conveying victuals of him the said a to parts beyond the sea for a certain sum of money beforehand received, within a certain term between them agreed; he the said x did not take care to make and build the carriages aforesaid within the term aforesaid, by which he the said a hath wholly lost divers his goods and chattels, to the value of one hundred marks, which ought to have been conveyed in the carriages aforesaid, for want thereof to the great damage of him the said a as it is said: and have there &c." this is an example of a writ for case on indebitatus assumpsit: "the king to the sheriff &c. as in trespass to show: for that, whereas the said x heretofore, to wit (date and place) was indebted to the said a in the sum of for divers goods wares and merchandises by the said a before that time sold and delivered to the said x at his special instance and request, and being so indebted, he the said x in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said a to pay him the said sum of money when he the said x should be thereto afterwards requested. yet the said x, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not yet paid the said sum of money or any part thereof to the said a (although oftentimes afterwards requested). but the said x to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said a of ------ pounds as it is said. and have you there &c." this is an example of a writ for case for trover: "the king to the sheriff greeting &c. as in trespass to show: for that, whereas the said a heretofore to wit [date and place] was lawfully possessed as of his own property, of certain goods and chattels to wit, twenty tables and twenty chairs of great value to wit of the value of ___ pounds of lawful money of great britain; and, being so possessed thereof he the said a afterwards, to wit (date and place aforesaid) casually lost the said goods and chattels out of his possession: and the same afterward, to wit (date and place aforesaid) came into the possession of the said x by finding; yet the said x well knowing the said goods and chattels to be the property of the said a and of right to belong and appertain to him, but, contriving and fraudulently intending craftily and subtly to deceive and defraud the said a in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said a (although often requested so to do) but so to do hath hitherto wholly refused and still refuses; and afterwards to wit (date and place aforesaid) converted and disposed of the said goods and chattels to his the said x's own use, to the damage of the said a of ____ pounds as it is said; and have you there &c." the rigid writs with specific forms of action for common law cases started to fall into disuse. later, trespass on the case bifurcates into misdemeanor and the tort of trespass. persons in prison on suspicion of treason could not be released on bail as of . if one of several defendants of a case was acquitted, all defendants recovered their costs from the plaintiffs. a person found guilty of malicious prosecution recovered his costs from his accuser. mercantile cases were decided in light of mercantile custom rather than according to the strict rules of the common law. merchants and traders could settle their trade disputes by arbitration, which decision could be enforced by court order. the chief justice could empower persons by commission to take affidavits from people in the country for court proceedings in westminster. judgments were docketed so they could easily be found e.g. by heirs, executors, administrators, purchasers, and mortgagees. court judgments and fines could be challenged for error only within twenty years. court decisions were still appealable to the house of lords. in , skinner v. east india company held that the house of lords could not exercise original jurisdiction in civil cases between commoners as it had claimed, but retained its appellate jurisdiction. in , the house of lords acquired the new judicial function of hearing appeals from the chancery court by virtue of the case of shirley vs. fagg. any gaol keeper allowing a prisoner to escape in return for money lost his office forever and had to forfeit pounds. the last burning of a woman as a penalty for an offense, which had been only occasional, was in . the last bill of attainder, which condemned a person to death, occurred in . the pillory was still in use. benefit of clergy was taken away from those who stole cloth or woolen manufactures from their drying racks or who embezzled military stores or ammunition worth at least s, or stole goods of over s. value from a dwelling house with a person therein put in fear, a dwelling house in daytime with a person therein, or by day or night a shop or warehouse. a statute of gave jurisdiction to naval courts-martial to decide cases at sea, e.g. insubordination; failure to fight the enemy, a pirate, or rebels; not assisting a friend, mutiny, drunkenness, creating a disturbance to protest the quality of the food, quarreling, sleeping on watch, sodomy, murder, robbery, theft, and misdemeanors. usually the penalty was to be determined by the courts-martial, but sometimes death was decreed. in the american colonies, judges were still appointed by the royal governors and paid by the local legislatures. they still served at the pleasure of the king. chapter the times: - dress was plainer than before. gentlemen wore white linen shirts; waistcoats fitted at the waist and covering the trunk at least; long lawn ties wound around the throat and tied in front with the tails tucked in, knee-length coats that were wide in the skirts and in the sleeve cuffs and having large gold, silver, or bronze buttons which didn't reach to the buttonholes on the other side of the coat; knee breeches of cloth, knitted wool, thread, and silk; and silk stockings rolled up at the knee. some shoes had metal buckles. gold fobs with watches or seals hung from the breeches pocket. the clothes were made of silk, satin, or velvet and often in colors such as yellow, orange, scarlet, blue, violet, pink, and dull slate, and decorated with gold and silver trimmings. a slender sword was worn on the side. short wigs, often powdered with heavily scented white or gray wheat flour, with rolls over the ears and hair tied at the back, were worn for formal occasions. wigs were made of human, horse, goat, or cow hair, or mohair, worsted, silk, or wire. sometimes feathers and cork were also used. there were new colors and cuts of dress for every season. by , wearing a sword was just a symbol of gentility. gentlemen often had valets to help them dress. ladies wore fitted full-length dresses held out by hoops with shoulders hidden, sometimes with a laced bodice with stays, and lace at the neck. the waistline fashion fluctuated between high and low and in tightness. the dress could be brocade, satin, velvet, silk, etc. some put jewels in their hair and had high elaborate hats with wide brims tilted forward. hair was in ringlets at the side or dressed close to the head with a small top knot covered with a laced cap. they also wore wigs when dressing up, decorated with ribbons and artificial flowers. hooded cloaks were used outdoors and hoods were used for sun or wind. they carried leather purses with gloves at elbow length. both gentlemen and ladies wore cosmetics and face patches and used tooth powders, breath sweeteners, lip salves, and choice perfume. some had false teeth of bone or ivory wired into place. both gentlemen and ladies had accessories such as fans, handkerchiefs, head scratchers, and elaborately designed snuff boxes, patch boxes, and perfume containers. both sniffed tobacco snuff but only men smoked it. they walked with tall, elegant canes, and women also carried parasols. hats were made of wool and hair of beaver, rabbit, or camel. a popular hat was three-cornered, and usually of beaver or dark felt. there was often a rosette or such to show one's political opinion. straw hats were worn in the summer. there were ready-made clothes and shoes, especially for children. night gowns and night caps were worn to bed. about , umbrellas for rain were introduced. they were made of waxed silk or taffeta. all but the poorest wore silk and lace. a prosperous countryman wore riding clothes consisting of breeches and boots, cut-away coat, and low top hat. the highest class were the peers and peeresses of the house of lords and their spouses and families. they were the nobility and held the high political offices, the high ranks in the army and navy, and owned large estates, usually scattered over the country. some were lawyers or merchants. there was much intermarriage among these families. indeed, many a noble family had salvaged its fortunes by marriage to a london merchant. the richest people in london were international merchants. these high class families lived in mansions with four or five living rooms, two to five acre gardens, and stables. the next class were the gentry. their family heads had land and were often justices of the peace. they were sometimes members of the house of commons. the oldest son took over from his father, while the others had to find a living such as in the church, law, medicine, or trade. the gentry usually lived in mansions. the old yeoman class was disappearing due to their selling their land to larger landowners. farming on a large scale was more productive. the next class were the "middling sort". in this class were merchants, lawyers, substantial tenant farmers, smaller freeholders, millers, innkeepers, in town traders, middlemen, clothiers, ironmongers, goldsmiths, grocers, linen drapers, apothecaries, school masters, clerks and civil servants, customs and excise men, and .shopkeepers, who now kept their wares inside and lived on the second floor. the town people lived in town houses of two stories plus an attic. the next class were the manual workers. these were wage earners or independent craftsmen, farriers, rural smiths (who shod horses and made stair rails, window-bars, torch extinguishers, lamp irons, bells, bolts, hinges, locks, and fire-grates), sawyers, carpenters, joiners, wheelwrights, nail makers, brick makers, plumbers (made lead cisterns, kitchen sinks, rainwater heads, drain pipes and lead flats for houses and ornaments), thatchers, spinners (silk, flax, hemp, wool, hair), dyers, wool combers, weavers, shoemakers, hat makers, belt and buckle makers, dressmakers, milliners (hats, caps, bonnets, cloaks, hoods, muffs), feather workers, button makers, lace makers, steel pin makers, brewers, cutlery makers, soap makers, candle makers (made from beeswax, tallow, mutton-fat, or beef-drippings), comb makers, barber/hairdressers (shaved, cut hair, made wigs and braids, and let blood), curriers, leather workers, carpet weavers, paper makers, tin-plate makers, printers, enamel workers, braziers and coppersmiths (made kettles, saucepans, canisters, milk pails, lanterns, candle boxes, candle sticks, and lamp lighters), basket makers, jewelers (made rings, perfumes, match boxes, buckles, and tops of canes), watch and clock makers, type founders, letter cutters, trunk and chest makers, cabinet makers, saddlers, coach body builders, coach carriage makers, shipwrights, rope makers, and sail makers. these workers typically worked in their stone or brick houses in a rural setting, with gardens, a cow, a horse, pigs, and poultry around them on - acres. they now ate white or wheaten bread instead of rye bread, much meat and cheese, and drank tea. working men could now afford leather shoes. these people also worked in the harvesting of grain. some consolidation of work was starting. for instance, the weaver, who had furnished himself with warp and weft, worked it up, and brought it to market himself was being displaced by weavers who worked under supervision for one merchant in a town on looms the merchant had acquired. many women and children were so employed. it was not unusual for a man to work hours a day for days a week. the wage earners were well above the subsistence level as long as trade was good. real wages were higher than at any time since the mid- s. but eventually, as the employer came to realize how dependent the weaver had become on him, wages tended to fall. in a gloucester weaver, with his wife to help him, could earn, when work was good, from s. to s. a week. a few years later, he could only earn about s. a woman spinner earned - d. a day in , but - d. in . in the same period, men's wages fell from d. to d. a day. only certain workers, whose special occupation needed greater skill, e.g. the wool-combers, whose wool was longer and of better quality than carded wool, and shearers, were better paid. in , wool combers made s. a week; their wage was about the same all over the country because they traveled form town to town in search of work and always supported each other. also in , newcastle miners earned s. a week, sheffield cutlers s. d. a week, a rotherham blacksmith s. a week, a furnace keeper at horsehay about s. a week, a staffordshire potter from - s., a witney blanket weaver or a wilton carpet weaver s. or more a week, a manchester cotton weaver from - s. a week, and a leeds cloth weaver about s. in this class also were ploughmen, cowmen, dairymaids of the bigger farms. they had cottages of wood, clay, and straw, with clay floors and low ceilings, and a divided ground floor. a few had homes built of stone, covered with slate or thatch. wages of industry were higher than those of agriculture. in , a day laborer earned - s. a week in winter and - s. in summer, without board or lodging. in the short harvest time, he could earn s. a week. lastly were the mass of the population of london: hordes of laborers who depended on casual employment and could be dismissed at will. about half the population had no resources but their labor, which was usually unskilled and lowly paid. in good times they had just enough to feed themselves. the gap between rich and poor became greater. marriage remained a main way to wealth. also, one trained in the law could aspire to have a successful career in high political office, which also brought wealth. but there was less social mobility than in the previous century and many landed families were consolidating their position. industrialists who had made a fortune for example, in steel, cotton, coal mining, and porcelain, and merchants who wanted to turn themselves into landed gentlemen found it very difficult to buy landed estates. old dissenter families, quakers in particular, who were highly esteemed as businessmen, as industrialists, and as model employers were excluded from the anglican landowning society. rich tradesmen, artists, actors, and writers found it difficult to buy substantial houses in the small market towns and countryside because of an entrenched hierarchical atmosphere there that didn't exist in london. the only gentlemen who were in household service were librarians, tutors, or chaplains. they ate with the family and did not consider themselves servants. servants were kept more at a distance. by the s the servant class was clearly defined. their quarters were moved to the basement of the house and they ate together in the kitchen. but some householders still had special occasions when everyone ate together in the dining room, with the servants at one end of the table. servants had no right to free time or to holidays. in about one tenth of the population in london had servants. even bricklayers and milk sellers had a servant. most families had just one servant. most wives employed some other woman or child to help in washing and scouring or in the minding of the children. london had grown beyond the locations of its walls around the city. london stretched ten miles along the thames, and was three miles wide in the center. on the east of the city was the port and industry. the west side ended at hyde park and regent's park and was residential. in it was still possible to shoot woodcock in regent street. in , westminster bridge was opened. in , the city walls were taken down to ease congestion. the typical london house, usually brick, was on a rectangular plan and had a basement to utilize all the space possible. walls were now more covered with hung damask, brocade, silk, and wallpaper or plain paint rather than by wood paneling. there were pictures on the walls. on the first floor was a front hall or parlor and a back parlor. one of these parlor rooms was the most important room, where the family entertained or spent leisure time. in it were sofas, armchairs, and stools of mahogany or white gilded wood. they were upholstered with damask or needlework. imported mahogany was replacing the favorite walnut that had replaced oak. much wood was inlaid with a variety of other types of woods. there was also a carved tripod table, china table, card table, and perhaps bookcases and/or tea-table. furniture with original designs made by the cabinet-maker chippendale was available. his genius was in combining various motifs into one harmonious design. cabinet makers had to keep abreast of his standards and to imitate them to conform with their customers' orders. cabriole legs with claw and ball feet came into fashion with queen anne about . between windows were tall mirrors. from , glass chandeliers hung from the ceiling to reflect candlelight coming from standing candlesticks or glazed hanging lanterns with brass frames. the fireplace had an elaborate mantel. the fire was kept going all day. it was lit by a tender box, which was unreliable. an iron fireback was behind the fire. the firewood was placed on andirons. fire grates were used from about . at a corner of the building was added a closet. on the second floor was a dining room, continuation of the closet below, and a drawing room, dressing room, or bedroom, and perhaps a study or music room with harpsichord. the dining room had a fireplace; curtains over the windows looped up at the cornices; one or more mahogany tables; a set of mahogany chairs with leather or hair- cloth seats fixed with brass nails, perhaps with some sort of metal springing; two mahogany sideboards with marble tops; cupboards or shelves or cabinets with displays of china porcelain; a wine-cooler; a dumb-waiter; and a folding leather screen. the china, which was displayed, was mostly imported, but there was some english china. later, there was famous wedgwood stoneware and pottery with bright, unfading glaze, or with dull black and red surfaces, biscuit ware of pale green, blue or purple, upon which white designs stood out like cameos. they came from the pottery factory at staffordshire founded by potter josiah wedgwood in . there were silver and pewter plates and serving pieces, silver candlesticks, silver knives, spoons, and two and three pronged forks, glass saltcellars from , and fingerbowls from which one rinsed one's mouth or cleaned one's fingers after dinner which were made of glass from about . on the third floor were bedrooms and a nursery. in the bedrooms, there was a high bed with curtains, canopies, piles of blankets and pillows, and steps up to it; wardrobe; chairs; a hand wash stand; chests of drawers; writing bureau; dressing table with a couple drawers and a mirror; swing standing mirror; tin rush candle canister; and night commode. children and servants slept on low wooden bedsteads. walls were stucco, a form of cement that could be sculpted, or paneled or hung with silk and printed paper. servants, such as the page and footmen, slept in the attic and perhaps in the kitchen or cellar. there was a wood staircase for the family and a back staircase for the servants. the floors and stairs were protected with carpeting. the kitchen was in the basement or in a covered shed in the back. it had an open fire and a tin oven. the cold water tap over the stone sink could supply cold water from a cistern in the basement or hand-pumped to a roof cistern through wooden pipes at very low pressure at stated hours for a fee. there was a wash shed in back. water pumped from the thames into underground pipes was thus distributed to householders three times a week. some water came from a well or spring, rain, and street water sellers. water carriers were still employed at set fees. water was kept in lead cisterns. the wealthy had basement cisterns filled by a commercial company. the free public conduits of water were out of use by . the front door of the house had two strong bolts on the inside and a heavy chain. the windows could be shuttered and barred. there were sash windows with cords and brass pulleys. at the back of the house was a garden and perhaps a coach house or stables. landscaping to reproduce an idealized country scene replaced formal gardens. foreign trees were imported. the latrine was usually not in the house, but somewhere in the back garden area. under it was a brick drain leading to a public sewer or to a cesspool. smelly gases arose from it. sometimes people gathered such waste up to sell to farmers returning home in an otherwise empty wagon. in , patented inside toilets began to be used. each stood in its own room. a watchmaker named alexander cummings patented in the water-closet, which had a stink trap u-bend behind which, after flushing, water resided and prevented the backflow of noxious sewer gas. its pans and overhead cisterns were made of pottery. they were supported by wood structures. there were better cements for building. chinese porcelain, embroidery, and lacquer work were popular. furniture and landscaped gardens were often done in a chinese style. many of the well-to-do now lived in districts without as well as within the city limits. many streets east of the city were named after the governing families whose estates were there. their mansions had interior columns, archways, marble halls and fireplaces, carving, gilding, rich colors, and high ornamented ceilings. they each had a picture gallery, a library, stables with coachmen, grooms, and stableboys, and a still-room for concocting liquors and cordials such as cherry brandy, sloe gin, and elderberry wine. medicine and scents were also developed in the still-room. hands were washed in bowls held up by wooden stands. there were built-in bathtubs, but they usually lacked hot and cold running water, so hot water usually had to carried up to them. in these mansions, there were many private parties and balls. the standard for politeness here was high and gentlemen were expected to keep their tempers. this came about because impoliteness could easily lead to a quarrel and then a duel. the pistol was replacing the sword as the weapon of choice for duels. good manners developed for all occasions, with much less swearing and less rudeness. by gentlemen's agreements, men did favors for each other without a monetary price, but with the expectancy of a favor in return. the love of one man for another was recognized as the highest and noblest of human passions. people of high social standing left their country estates to spend the winter season in their townhouses in london with its many recreations such as receptions, routs ]fashionable gatherings], levies, masquerades, balls, dinner parties, clubs, pleasure gardens, theaters, shops, shows, taverns, and chocolate and coffee houses. coffee houses provided turkish coffee, west indian sugar and cocoa, chinese tea, virginia tobacco, and newspapers. they were frequented by learned scholars and wits, dandies, politicians, and professional newsmongers. men of fashion often engaged in wagers and gambling at their clubs and coffee houses. there were wagers on such matters as the longevity of friends and prominent people, fertility of female friends, wartime actions, and political matters. gentlemen often had valets. carriage by sedan-chair was common. in , buckingham house was bought as a palace for the royal couple. physicians and lawyers lived in two-story brick mansions with attics and sash windows that could be lifted up and down with the help of a pulley. they had rectangular wood panes each with a sheet of glass cut from a circle of blown glass. the old blown glass was not regular, but had a wrinkled appearance. the center of each pane of glass was thicker with a knot in the middle left from the blow pipe. in front of the house were railings which supported two lanterns at the doorway. people from different parts of london differed in ways of thinking, conversation, customs, manners, and interests. for instance there were sections where sailors lived, and where weavers, watchmakers, and cow keepers each lived and worked. there were many specialized craftsmen who worked with their own tools in their own shops or houses, for some superior who had contact with the market and who supervised the final processes of manufacture. these included the goldsmiths, upholsterers, coach makers, saddlers, and watchmakers, all of whom had many dependents. the watchmakers had specialists making wheels, pinions, springs, hands, dials, chains, keys, caps, and studs in their own houses. the type of industrial organization most common in london was that in which work was given out to be done in the homes of the workers: the putting out system. some industries, such as watchmaking, silk weaving, and shoemaking were on both a putting out system and a system of an apprenticeship to journeymen working on piece work. shoes were made to order and ready made. the customer was measured in a shop, the clicker cut out the upper leathers, which were given to the closer to be closed, and then to the maker for the sole and heel to be put on. another class of shoemaker worked alone or with an apprentice in a garret, cellar, or stall, using pieces of leather cut out for him by the currier or leather cutter. london industries included the making of bread, beer, spirits, and vinegar; sugar refining; tobacco refining and snuffmaking; spinning and/or weaving of woolens, worsteds, silk ribbons, tape, and cloth; and making printed calico, clothes, linens, laces, tassels, fancy embroidery, stays, stockings, hats, shoes, leather goods such as boots, shoes, hats, gloves, harnesses, and saddles, jewelry, glass, candles, tapestry, musical instruments, cutlery, furniture, paint, varnish, paper, tools, swords, guns, heavy artillery, ships, sails, rope, carriages, precious and base metalwares such as brass and pewter ware, and printer's ink and glue; printing; and publishing. surgical instruments made included straight and curved knives and probes, lancets, scissors, spatulas, trepans (for cutting bone), and cupping cases. optical instruments made included eyeglasses, telescopes, and microscopes. in eyeglasses were held in place by frames that went over the ears, which replaced unreliable cords over the ears and leather straps tied behind one's head. also made were nautical instruments, quadrants, sundials, sectors, globes, scales, model solar systems, and air pumps. in london, the old distinction between craftsmen and laborers was blurred by the existence of trades which employed workmen under a skilled foreman instead of journeymen who had served an apprenticeship. these trades were, on a large scale, new. among the most important of these trades were the distillers and brewers of liquors, the tobacconists and snuff makers, the sugar refiners and soap boilers, the vinegar makers, and makers of varnish, glue, printers' ink, and colors. the latest chemical theories and the chemical explanation of dying brought about the invention of new colors and new processes in dying cloth. workers in these trades were considered as laborers, but their wages were high and their positions relatively secure. they learned their jobs by doing them. the older trades of a similar character, such as tallow melters and chandlers, wax chandlers, fellmongers [removed hair or wool from hides in preparation for leather making], and the tanners, employed journeymen. the skilled artisan who worked at home and either made goods for a master or sold to the trade verged into the shopkeeping class. on the other hand, the lowest type of shopkeeper, the chandler, the dealer in old iron, the tripe shop, the milk retailer, the keeper of a cook shop or a green cellar belonged to the class of casual and unskilled labor. the lowly chimney sweep, paid d. a day, served an apprenticeship as a boy, and then was his own master. the watermen and lightermen, by virtue of their fellowship and their apprenticeship and often the ownership of a boat, belonged to the class of skilled laborers. craftsmen in the building trades and paviours had their laborers as smiths had their hammermen to do the heavy work at laborers' pay. the street ragpickers, the ballad sellers, and the match sellers belonged to the class of beggars. there were buildings for boiling and distilling turpentine, for casting brass or iron, and for making glass for chemical works for sale. working women in london in were employed in domestic service: %, nursing and midwifery: %, cleaning and laundry: %, vitiating: %, shopkeeping: %, hawking: %, and textiles: %. those employed in domestic service were mostly young women who later married. some women were schoolteachers, innkeepers, or manufacturers, which were middle-class employments. many women in the realm engaged in a variety of occupations from fanmaking and hairdressing to catering, and, as widows, often carried on their husband's trade, including bookselling, hatmaking, building or ironmongery. although shops still had small frontages of about feet and the windows had small panes of bottle glass which partly obscured the view of the goods, there were magnificent shops with large windows displaying fine goods. there were bookshops, and print shops with prints of political satire with caricatures. the shops were generally open six days a week from a.m. to p.m., and years later to p.m. in josiah wedgwood opened a showroom in london for his high quality pottery from staffordshire. consumption was on a mass scale, many people buying what they wanted instead of just what they needed. there were circulating libraries, public concert halls, and professional boxing matches. at coffee houses, chocolate houses, and taverns, people played at dice and cards, gambled, talked politics and read daily newspapers, in which there was advertising, reports of marriages and deaths, grain prices, and book reviews. different professions and classes and groups, such as the whigs, the tories, classical scholars, scientists, clergymen, intellectuals, actors, writers, and journeymen of particular crafts, had their favorite meeting places. coffee houses reflected the character of their neighborhoods. they acted as postal centers, lost property offices, business addresses, physicians' consulting rooms, lawyers' and merchants' businesses, matrimonial agencies, masonic lodges, auction rooms, and gambling dens. some retained a supply of prostitutes. many taverns had a rentable private room for the better-off to drink wine, have meals, meet friends, gamble, do business, and hold meetings of societies and clubs, especially political clubs. from this beginning sprang private clubs such as the blue stocking club in and the literary club in , lloyd's for sale and insurance of ships in , and the stock exchange in . the blue stocking club was established by women who organized conversational parties with guests of intellect and wit. there was opera, playhouses, concerts usually with georg handel's oratorios such as the messiah or the foreigners bach and haydn, tea-gardens, fire works, balls, masquerades, wax works, beer shops, and bawdy houses, except on sunday. there were straight plays, comic operas, and melodramas. three-dimensional sets replaced the two- dimensional backdrop. plays containing thinly veiled satires on politicians were becoming popular. some plays had crude and licentious material. theaters still shared a close association with brothels. unlicensed theaters were closed down by a statute of , but most came to acquire patronage to get a license. this shaped the development of drama in london for a century. the beggar's opera depicting an immoral society unable to master its bandits was written by john gay as a powerful attack on a government which most of london hated. with its many ballads it became very popular. one such ballad goes: "through all the employments of life - each neighbor abuses his brother; whore and rogue they call husband and wife; all professions be-rogue one another. the priest calls the lawyer a cheat, the lawyer be-knaves the divine; and the statesman, because he's so great, thinks his trade as honest as mine." another is: "a fox may steal your hens, sir, a whore your health and pence, sir, your daughter rob your chest, sir, your wife may steal your rest, sir, a thief your goods and plate. but this is all but picking, with rest, pence, chest and chicken, it ever was decreed, sir, if lawyer's hand is fee'd, sir, he steals your whole estate." the thames was crowded with sailing boats and with a line of boats waiting to unload. foreign and native ships lined the river banks in rows. theft of cargo from docked ships was still a problem and pirates were still executed at low tide on gallows. londoners went to the bridges crossing the thames to breathe fresh air. london air was so smoky and polluted by coal-burning in kitchens and factories that it gave a cough to newcomers. the river was so polluted by the sewers by that all the swans and most of the fish had disappeared. a mansion house was built for the mayor in . the king's zoo had ten lions, one panther, two tigers, and four leopards. deer hunting in hyde park was now confined to its northwest corner, which was enclosed for the king, who occasionally hunted there. elsewhere in the park were laid out walks and fountains. gardens were now natural instead of formal. the streets were usually crowded with people and traffic. many people traveled by sedan chair. on the streets were barrows with goods such as lace, threads, fruits, and chickens; beggars, ballad singers, musicians, bands, street dancers, apple women, piemen, muffin men, fruit sellers, nut sellers, pudding sellers, milk maids selling milk from buckets, milk sold directly from the cow, vendors of asses' milk, hawkers, newspaper boys, scavengers with carts, postal collectors, lamplighters on their ladders, wenches, chimney sweeps, rat catchers, pick pockets, swaggering bravados, strolling strumpets, brawling watermen, card sharps, overdressed beaux, dancing dogs, and acrobatic monkeys. each trade had it own call. billingsgate open-air market was now exclusively for the sale of fish. small tradesmen such as dairymen, butchers, bakers, fishmongers, and chandlers delivered to regular customers food bought from distributing centers. workers by necessity lived near their place of work because there was no cheap transport and walking through the streets after dark was unpleasant and dangerous. hours of work for most craftsmen was from a.m. to p.m., six days a week. it was common for working class families in london to live in a single room of their house and rent the rest, furnished, to people of different degrees of prosperity and even of different social grades. servants and apprentices slept in the kitchen, the shop, or the garret. the very poor, such as casual laborers and street sellers, silk winders, charwomen, usually lived in damp cellars subject to floods from excessive rain, or in cold and windy garrets. tenancy was usually on a weekly basis because of the general uncertainty of life and trade. conditions were so cramped that cabinet makers made beds which masqueraded in the day time as tables, bureaus, cupboards, or bookcases. the very poor slept in common lodging houses, sleeping uncovered on the floor, twenty to a room. some poor families slept in small hovels made of mud and straw with their pigs, domestic fowl, dogs, and even asses and horses. homeless children slept on the streets. all classes lived so much at coffee houses, alehouses or clubs, which they often used as their addresses, that house room was a secondary consideration. there was an alehouse on almost every street in london to provide cheap food and beer, lodging, employment information, credit, newspapers, tobacco, and meeting places for tradesmen. some alehouses were recognized employment agencies for certain trades, such as the hatters, smiths, carpenters, weavers, boot and shoe makers, metal workers, bakers, tailors, plumbers, painter and glaziers, and bookbinders. they were often run by one of the trade, retired or otherwise. some alehouses catered to criminals and prostitutes. for cheap and simple eating there were chophouses, cookshops, and beef steak houses. there were about , english immigrants a year to london in the s. they were mostly young people. london needed many immigrants because of its high death rate. over twenty london people a week died from starvation alone; they were mostly women. only about one-fourth of london's population had been born in london. especially welcome were sturdy country people for heavy manual labor, the better educated boys from the north for shops and offices, and the honest country people, as contrasted with london's poor, for domestic service. girls mostly looked for domestic service, but were sometimes made the mistress of the housekeeper or steered into prostitution as soon as they entered the city. an ambitious young man would seek an apprentice job, work hard, flatter his master, and try to marry his master's daughter. it was easier to find a place to live in london than in the villages, though there was much overcrowding. many shopkeepers and workshop owners in london were involved in leasing, purchases, and contracts. queen anne was authorized by parliament to build about more churches in london and westminster and their suburbs, to be paid for by a coal tax on imports into the port of london. churches in london were to be rebuilt with money paid by funeral rates, rates for tolling the bells, and rates for the use of palls [altar cloths]. queen anne also appropriated all her revenues from the first fruits and tenths of ecclesiastical benefices: , pounds, to the clerical poor in . there were fewer quarrels among passersby on the london streets; men were less likely to wear their swords. but there were fist fights by common men which gathered crowds and occasioned betting. most crime was petty theft, but mobs and riots were frequent, as there were no police. watchmen and constables were often old and physically incapacitated. the watchmen were householders taking their turn. this duty of householders watching the streets had evolved from the ancient obligation of wards to provide men to guard the walls at night. but few wanted these jobs by which they could offend their neighbors. many citizens paid a rate to be excused from watch and ward duty. constables were often tavern keepers. many riots were started when penal laws against the catholics were repealed. they began with the cries of "no popery", but then targeted rich men's houses. mobs sacked and pillaged at will, burned houses, and flung open the prisons to increase their numbers. there were political riots between tories and whigs. working men still used violence to protect their livelihoods, such as destroying the lodgings and public houses of cheap immigrant labor such as the irish. the stocking-knitters destroyed stocking-knitting frames so that the number of apprentices who could be employed would not reach the limit specified by its guild's regulations. parish workhouse children also provided a cheap supply of labor which forced down the wages of the stocking knitters. in a statute banned wearing of calico after mobs tore calico garments off women. in , thousands marched on parliament and persuaded it to ban foreign silk imports. but when a mob destroyed engine-looms, the army was used against the rioters and two of them were hanged. this was the last major mob action. around the tower, there were still demagogues standing on upturned carts haranguing passing crowds. the tower area was a favorite place for demonstrators, and for unemployed and dissatisfied workmen, particularly coal heavers and underpaid seamen protesting their low pay and poor living conditions. there was more crime, especially at night, now with organized bands of men or gangs of children. bounty hunters made a lot of money catching offenders. in , to deter the frequent robberies, burglaries, and other felonies at night, many glass lamps were set up in places determined by the mayor. they had to burn from sunset to sunrise. in , a lighting rate was imposed by the city to pay for all night lighting all year by hired lamplighters. anyone breaking or damaging the lights of london would forfeit s. for the first offense, s. for the second offense, and pounds for the third offense. the aldermen had to contract to pay for lighting, trimming, snuffing, cleaning, supplying, maintaining, and repairing them. to pay for this system, citizens paid according to the amount of rent their holdings were worth. if they didn't pay, they could not vote. bad areas of thieves and prostitutes and the slums east of the city were gradually being replaced by warehouses and offices. in , london bridge was widened and the houses were cleared off it. there were lanes for carriages in the middle and for pedestrians on each side. its arches were also widened to make the passage of vessels underneath easier. lights were put on it to be lit all night. and watchmen were put on it for protection and safety of passengers. this was paid for by tolls of / d. per horse, d. per carriage, and d.- s. for vessels with goods passing underneath. about , a body of enterprising citizens secured private acts of parliament which allowed them to levy a house tax in return for providing paving and lighting, which then greatly improved, as did sanitation. sidewalks were raised between the street proper and the buildings, replacing the protective posts which had lined the roads. flat stones were put in place of the pebbles on the roadway. signs hanging out from stores, which had blocked the sunlight, were placed flat on the front of the buildings. this also made the streets more airy. the buildings were given numbered addresses and street names were placed on buildings. loading and unloading could not exceed one hour. nuisances like empty carts could be removed. cranes used in warehouses had to be stored in unobtrusive places. one who drove on the foot pavement had to forfeit s. for the first offense, s. for the second offense, and s. for other offenses. wells were dug and pumps erected for watering the streets. pavements were to be repaired on complaint. dust boxes and dust holes were built and had to be used for refuse awaiting pickup by the raker or else forfeit s. in , the system of having every man responsible for cleaning the street in front of his door, which occasioned piles of rubbish in the central troughs of the streets waiting for the next rain to be washed away, was abandoned. but house occupants were required to keep the sidewalk in front of their house clean or else forfeit s. if one broke a light, he had to pay damages if it was accidental, and also s. if willful. wards were to choose substantial inhabitants to be collectors for a year at a time to collect the rates, which were not to exceed s. d. per pound of rents. if one declined to be a collector, he had to forfeit pounds. there were special stands for hackney coaches, which were s. d. for a day of twelve hours. their regulations were extended to sundays. in london, the normal system of building was for builders to buy up leases, put up a new building, and sell it before the lease became due. the rules for party walls between buildings were made more stringent: / bricks thick in cellar, bricks thick to the garret floor, and / bricks above the roofs or gutters. they had to be made of brick or stone. in , rain water from roofs had to be carried to the streets in lead or other pipes that were affixed against the side of the building. in , iron, copper, or other pipe or funnel for conveying smoke or steam were not to be near any inside timber, or in front of most any building or next to any public street, square, or court. in the s firefighters had to fill a tank on a wagon by hand with buckets. on top of the tank was a hose that could spray water high. london parishes were authorized to place upon the water pipes underground stop-blocks of wood with a plug and firecocks to go into such pipe at various distances so that there would be no loss in time in digging down to the pipes to get water to fight fires. parishes were required to keep at known places, ladders and a large engine and a hand engine to throw up water to extinguish fires including one leather hose with socket fitting the plug or firecock, so that buckets would not be needed. the sun insurance company was incorporated for fire insurance in . insurance offices were authorized to employ watermen with poles, hooks, and hatchets to be always ready at a call to extinguish fires. no more than sacks of meal, quarters of malt, bricks, or chalder of coal per load on wagons or carts with wheels bound with [narrow] iron tire are allowed within ten miles of london or westminster, or else forfeit one horse. this is to prevent decay of the roads. for every wagon and cart in london, there must be a person on foot to guide it to prevent the maiming, wounding, and killing of people, especially the old and children, when drivers ride on their wagons and carts. later, it was required that carts must display the name of the owner and be registered. still later, there was a penalty of s. for not having a person on foot to guide any cart. later still, in , if a new owner of a cart did not put his name thereon, he had to forfeit s., and the cart and horse could be seized and sold to pay the forfeiture. persons willfully obstructing passage on streets with empty carts or barrels or pipes shall forfeit - s. or do hard labor up to one month. the justices of london assessed rates and made regulations for carriage of goods. certain houses and buildings were bought and pulled down to widen several streets, lanes, and passages. in , persons driving cattle in london, whose negligence or improper treatment of such cattle cause them to do mischief shall forfeit - s. or else go to a house of correction for up to one month or be publicly whipped. the roads around london were neither very attractive nor very safe. along them was land covered with water from drains and refuse and dung heaps. hogs were kept in large numbers on the outskirts and fed on the garbage of the town. smoking brick kilns surrounded a great part of london. in the brickyards vagrants lived and slept, cooking their food at the kilns. queen anne's drinking of tea made it a popular drink, but it was still expensive. this habit improved health because to make tea, the water had to be boiled before drunk. breakfast included tea and bread and butter, and later toast with melted butter. the rich also had coffee and chocolate. the morning newspaper was often read at breakfast. the chief dinner dishes were roast beef, roast mutton, boiled beef or pork, with puddings and vegetables. roast meat was still the basic diet of town and country gentlemen. there were also fowls, tripes, rabbits, hares, pigeons, and venison. many elaborate sauces were made. the national dish was the pudding, a compound of steak, kidney, larks, and oyster. drinks included ginger beer, lemonade, barley water, coffee, chocolate, tea, and foreign wine. port from portugal was introduced about , and rum about . rum, made from sugar, first became popular as a medicine, well-whisked with butter. beer was drunk by the poorer and middle classes. the poor could afford very little meat now, unlike years ago. their standard fare was cheese, bread, and tea, the latter of which was usually from used tea leaves bought from rich houses. households were smaller; a peer had a household of about - . the proportion of women in a household grew to one-third to one-half. dinner guests sat and were served in order of rank, with gentlemen on one side of the table and ladies on the other. later, a fashion came in to sit alternately by sex. dinner was in several courses and lasted a few hours. toasts might be made. it was bad manners to put one's elbows on the table, to sniff the food, to eat too slowly or too quickly, to scratch, spit, or blow one's nose at the table, or to pick one's teeth with a toothpick before the dishes were removed. after dinner, the men drank, smoked, and talked at the table. there was a chamber pot under the sideboard for their use. politics was a popular subject. the women talked together in the drawing room. later, the men joined the women for tea and coffee. the evening often finished with card games, reading newspapers, verse-making, fortune-telling, walks in the garden, impromptu dancing, perhaps gambling, and supper. the nobility and gentry became more mobile and now mixed together at parties. at these afternoon parties, there were a variety of simultaneous activities, instead of everyone participating in the same activities together as a group. guests could choose to engage in conversation, news, cards, tea-drinking, music, dancing, and even go into supper at different times. sometimes a man other than her husband escorted a lady to a party. having lovers outside marriage was socially accepted if discrete. single women were discouraged from thinking of their independent status as desirable. their single status was to be regarded as unfortunate. weddings took place in public in church instead of privately. there were banns, or announcements, publicized before the wedding so that anyone who knew of a reason why the marriage should not take place could speak up. brides wore a white silk or satin dress with a train. over one third of brides who were capable of having children were already pregnant when they married. in a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. these requirements addressed the problems of the kidnapping of heiresses, prostitutes trapping unwary youths after getting them drunk, and priests performing marriages clandestinely and not in church, which required banns. two witnesses to the marriage were required to sign a certificate of marriage, which was then to be registered in the parish books. manufactured goods relieved ladies from baking of bread, brewing, and spinning. so they often visited with friends, wrote letters, embroidered, and supervised the servants. funerals ceremonies started with socializing at the house with refreshments, then going in a procession to the church for burial, and finally returning to the house for more socializing. it was possible for a woman-covert to be seized of land in fee simple or in tail general or special to her separate use, free from control or intermeddling of her husband. houses were warmed in winter by burning coal. moderate homes had tent-beds in use, with which cloth was hung on all four sides of the bed from a light iron framework above the bed. the beds were warmed with a warming pan heated in a fire before use. there were often bed bugs and fleas. everyone wore nightcaps to bed. pewter tableware was used, but the poor used tinware instead. copper, brass, and iron pots and pans were increasingly common. most towns had a regular market once or twice a week. in them, street cleaning was still a responsibility of individual householders. water was still obtained from wells and pumps. there was no municipal government as such. public works were done by special commissions set up for particular purposes, such as lighting, cleaning and paving the streets, night watchmen, traffic regulation, removing nuisances, and improving local amenities. large towns had hospitals for the poor. in the larger manufacturing towns, there were literary and philosophical societies for debates and discussions. these put together libraries for use of their members. also in these large towns, there were booksellers' shops, printing houses, weekly newspapers, playhouses, concerts, and horseracing courses, the latter of which was mostly patronized by gentlemen. some private citizens of various towns followed the example of london and obtained from parliament the right to levy a house rate for paving and lighting. towns tended to be known for certain specialties, such as seaside holiday resorts, spas like bath, cathedral towns, fashionable shopping for gentry, and towns with certain industries like glass and china manufacture, pinmaking, pottery, tanning, manufacture of linen, silk, cotton, and the knitting trade. certain towns were famous for certain varieties of wool cloth. before , a town with more than , inhabitants was considered a large town. shopkeeping was supplanting fairs and markets. certain industries were done on a large scale and required workers to be at the same site, e.g. brewing and distilling; building ships; printing fustians; making paper, soap from animal fat or candles; coal mining, iron production, mining and smelting of tin and copper, refining of salt, and digging of clay. certain other industries also required some kind of power or team work for their production, e.g. refining sugar; finishing cloth; making bricks; glassmaking; manufacture of ropes and sails, and processing of copper and brass into rods and sheets. often the manufacturer's house was surrounded by the many cottages of his workers. there the wife and children usually were busy carding and spinning. putting out work and subcontracting were widespread and created many small-scale capitalists. workers' hours were typically a.m. to p.m. though grammar schools were endowed for the education of local poor boys, they sought fee-paying sons of gentlemen. they taught arithmetic as well as reading and writing. translation and reading of latin was still important, e.g. aesop's fables, virgil, cicero's letters, caesar's commentaries, horace, pliny, juvenal, ovid, livy, and plautus. the "eton grammar" book replaced the "royal grammar" as the standard for latin and english grammar. the boys lived in boarding houses superintended by "dames" or older boys. there were usually two boys to a bed. there was bullying and initiation ceremonies such as tossing small boys up from a held blanket or having younger boys run naked in the snow. there were occasional rebellions by the boys and fights with the townspeople. flogging with a birch or caning with a rod until blood was drawn from the bare buttocks was the usual punishment. there were some national boys' boarding schools such as eton, winchester, and westminster. in these schools, boys could mix with sons of rich and powerful people, thus establishing important connections for their adult life. but there was more bullying of small boys by large boys at these schools and the smaller boys became menial servants of their seniors. occasionally there were student riots. however, most grammar schools were not residential. because the grammar schools were limited to boys, many boarding schools for girls were established. tradesmen's daughters were often sent to these to learn to act like ladies. most upper class girls were taught, at home or at school, english, writing, arithmetic, drawing, courtly dancing, needlework, music, and french. dissenting academies were established for those who did not pass the religious tests of the grammar schools. pencils were now in use. sons of gentlemen usually took "the grand tour" of the continent before going to university. these tours lasted for months or years, and always included paris and a protestant french university. the students went in groups with tutors. the chief purpose was now cultural, instead of practical. on these tours there was often misbehavior such as drinking and fighting. in , travelers checks were developed for those on the grand tour. the universities began to teach science. the new professorships at cambridge university were: chemistry, astronomy, experimental philosophy, anatomy, botany, geology, geometry, and arabic. ideas in geology challenged the bible's description of the creation of the world and there was a controversy over the origin and nature of fossils. in , a large pointed weapon of black flint was found in contact with the bones of an elephant in a gravel bed in london. oral and written examinations began to replace disputations. few professors lectured. dissenters were excluded from universities as well as from offices and grammar schools. oxford and cambridge universities were open only to members of the church of england, so other universities were established for dissenters. they taught geography, mathematics, science, physics, astronomy, mechanics, hydrostatics, and anatomy. at oxford and cambridge and harvard universities, students in science were relegated to different instructors, buildings, and degree ceremonies than students in literature, who often looked down on them as socially and intellectually inferior. the inns of court had ceased to provide residence. the period of education at law school at the inns of court was now reduced in from seven to five years for ordinary students and to three years for graduates of oxford or cambridge universities. the textbooks were: "doctor and student" by christopher saint-german in and "institutes of the laws of england" by thomas wood in . most landed families tried to ensure that at least one member of the family in each generation was educated at the inns of court after going to oxford or cambridge. in , attorneys formed a "society of gentlemen practitioners in the courts of law and equity". in order to earn a living, most attorneys had to attach themselves to some great patron and serve his interests. so it was hard for an ordinary person to find an impartial attorney or to find any attorney willing to contest a powerful family. the first encyclopedia came into existence in . in was the first public circulating library in london. samuel johnson put together the first dictionary in . it standardized spelling and pronunciation. then came dictionaries for the arts, sciences, and commerce. there were histories with political biases such as the earl of clarendon's "history of the great rebellion". alexander pope wrote witty satire on human faults of the period such as "rape of the lock". daniel defoe wrote "robinson crusoe", "moll flanders", and "the poor man's plea" protesting disparity of judicial treatment of rich and poor, for instance for drunkenness. henry fielding wrote one of the first novels: "tom jones". joseph addison wrote essays on social behavior. jonathan swift wrote the satire on the times, "gulliver's travels". samuel richardson wrote some of the first novels, such as "clarissa"; he wrote on values such as religious faith, moral virtue, and family closeness. catherine macaulay started writing her weighty and impressive "history of england". many schoolmistresses wrote textbooks on a variety of subjects. poet and essayist hester chapone wrote "letters on the improvement of the mind". elizabeth carter wrote poetry and translated greek works; her work was published in "the gentleman's magazine". hannah more wrote the play "the inflexible captive". the diaries of caroline girle powys daniel told of her extensive travels in the nation, and the various life styles of polite society she visited. defoe's newspaper was the first great political journal. he claimed that the people have a right to control the proceedings of parliament. essayists like richard steele, who introduced the periodical essay in his newspaper, and joseph addison, in his newspaper, wrote in a conversational style about the social life around them and the thoughts and behavior of common men and women in a light and good-humored way. they separated humor from the old-style farce and gave it taste and gentility. and with this came a moderation, reserve, and urbanity in matters of religion, politics, and society. religious issues even became a matter of indifference. fairies, witches, astrology, and alchemy were no longer taken seriously by educated men. tales of fairies, witches, ghosts, and miracles were deemed appropriate for children. childrens' stories were becoming a distinct literary form. nursery rhymes included "hush-a-bye baby on the tree top" and the five little piggies. "mother goose's melody" was published in . there were picture books for children such as cinderella, red riding hood, and sleeping beauty. craftsmen made small models of their wares, such as dolls' china, dolls' furniture, silver, and flat lead soldiers. babies had rattles and teething rings. in copyrights for books was given for years, renewable for another years. alexander pope's translation of the iliad and odyssey made him financially independent. he collected advance payments from subscribers who would be listed in the book. a new book industry emerged in london with booksellers as master manufacturers who employed writers, authors, copyers, and subwriters. booksellers sold books of sermons, histories, political and literary satires, literary criticism, and dictionaries. there was a growing popularity of novels. books were expensive to buy. regular magazines on the new and strange were published. there were three daily, six weekly, and ten thrice yearly newspapers. newspapers increased in number from founded in to a total of in . by , there were over a million throughout the country. workmen usually began their day by reading a newspaper at a coffee house. authors of books which have been registered at the stationers hall had the sole liberty of printing and reprinting such book for years. others who printed or sold or published such -forfeited the books and paid one penny for each sheet found in their custody, / to the queen and / to the suer. the printer had to give a copy of each book printed to the company of stationers, the royal library, the libraries of the oxford and cambridge universities, and certain other libraries. in , the two universities in england, the four universities in scotland, and the several colleges of eton, westminster, and winchester were given in perpetuity a copyright in books given or bequeathed to them. the british museum was incorporated to hold the collections of robert cotton of manuscripts, books, records, coins, and medals and of hans sloane, which contained rare books, coins, precious stones, pictures, plants, and mathematical instruments and had been left to the public. italian opera was introduced in by georg handel on his visit to england. his music became the standard music of georgian england. the academy of ancient music was founded in . it set the standard of selection and performance. in existence were the violin (including ones made by stadivari), viola, cello, double bass, oboe, trumpet, clarinet, bassoon, trombone, horn, flute, harp, organ, harpsichord, in which the strings were plucked, and piano, in which the strings are struck by little hammers. orchestras had at least thirty members. many hymns were written. painting by artists developed. gentlemen had portraits painted of their horses and dogs as well as of family. joshua reynolds painted the wealth and beauty of england. painters such as gainsborough did landscapes and dramatic history paintings too, but neither of these sold as well as portraits. scenery was painted for the theater. places of business had signs painted which portrayed animals. coaches were painted with mythological creatures and such. gentlemen collected antique statuary and painting, such as by rembrandt and rubens. in an academy of painting was founded, which included women painters. the first public exhibition of paintings was in . the society of artists was formed in and incorporated by royal charter in . this differentiated them from the painter-stainers company of face painters, coach painters, and house painters. the royal academy of london was founded in to merge all private academies and societies into one official body and to recognize the best artistic work. joshua reynolds was its first president. it was at first financed by the king. under george i, sculptors became distinct from masons. they did monuments and portrait busts of the royal family, nobles, and great men. from italian influence, palladian architecture came into vogue. it was typified externally by a panoramic look achieved by horizontal lines, balanced alternatives of plain wall and openings, and portico with a heavy pediment like the front of a roman temple. stucco was often used to plaster housefronts, flute columns, and ornament pediments. architects took students. designers of engraved, etched, and historical prints were given the sole right to print them for years. copiers had to forfeit s. per print. foreigners were now interested in learning about english life, philosophy, and opinion. they learned english to read english literature such as shakespeare. no longer were france and italy the only centers of culture and influence on other nations. by , england was the leading sea power by far. the royal society was still the principal focus of scientific activity. issac newton was its president for several years and drew in more foreigners. its members were mathematicians, chemists, botanists, physicians, engineers, authors, poets, and theologians. papers given there generated much discussion at its meetings. newton opined that small particles attract each other by some force in a similar way that large bodies attracted each other. this force in immediate contact was exceedingly strong and performed chemical interactions, but at greater distances had no effect. also there were local associations and societies. there were learned journals such as "philosophical transactions". drovers bought cattle in the countryside, drove them to big towns, and sold them to fattening graziers or fatted them themselves. then they were driven into town and sold to the wholesale butcher, who sold the carcass to the retail butcher, the hides to the tanner, and the bones to the glue maker. flocks of geese were also driven into towns, after their feet were given a protective covering of tar. there were also middlemen wholesalers for cheese, butter, cloth, and iron. there was a rage of distemper among the cattle so serious that to prevent its spread, the king was authorized by parliament to make regulations for prohibiting the removal or sale of cattle and for the burial of distempered cattle. later, the king was authorized to prohibit the killing of cow calves. no one was to sell any ox, bull, cow, calf, steer, or heifer until he had possession of such for forty days or else forfeit ten pounds, later, the king was authorized to regulate the movement of cattle from one place to another. the main industry of the country was still agriculture. in the countryside, about half the arable land was under the open field system, in which land was cultivated in common. enclosures of land were still taking place. the enclosures were now done by statutory commissions to ensure equitable allotments. agricultural improvements came first to enclosed land, which comprised about half of the agricultural land. in the , jethro tull published a book about his invention of the seed-drill to first pulverize the soil for cultivation without manure and then to deposit seed at a uniform depth in regulated quantities and in rows instead of being thrown haphazardly. also explained was the horse-hoe to stir the soil about the roots of the plants to preserve moisture, promote aeration, admit warmth, and destroy weeds. there were more horses than oxen in use now in the fields. -the horse-hoe was first used by large independent farmers on enclosed land. also invented was a threshing machine with a set of sticks to replace hand threshing with flails. under-drainage as well as irrigation was practiced. lord townshend alternated turnips, grasses, and grain in his fields, and thus provided winter food for his cattle. the two-field crop rotation with fallow periods was often displaced by the three-field system rotating grain crops, legumes, and fallowness. independent farming gave rise to the improvement of breeds of livestock by selective breeding. enclosed land produced bushels of grain compared to bushels for common field land. it produced pounds of sheep fleece compared to / pounds for common field land. overall, soils were improved by being treated with clay, chalk, or lime. artificial pasture was extended and there was increased use of clover, sainfoin, and rye-grass. grain productivity was four times that of . a fatted ox was pounds compared to the former pounds which it weighed from the s to the s. the fleece of sheep increased fourfold. by statute of , persons having rights of common in certain land may, by the major part in number and in value of each's tenement, enclose such land for planting and growth of timber or underwood. every village had a smith, carpenter, and miller. the larger villages also had a potter, a turner, a malster, a weaver, a tanner, and perhaps a mercer or grocer middleman. wheelwrights made ploughs, harrows, carts, and wagons. ploughs had one, two, or no wheels. poor farming families took up extra work in the villages such as making gloves, knitting stockings, or spinning yarn. craftsmen still helped farmers at harvest time. much of the rural population was now dispersed over the countryside instead of being concentrated in villages because so many small holders had sold out due to enclosures of farm land, especially of common land and waste land. the rural working class lived in two room cottages, with low ceilings, small windows, and an earth floor. patience was required for those willing to wait for an existing cottage in a village to be vacated. most laborers did not marry unless and until they found a cottage. ancient custom that a person could build a home for himself on waste land if he did it in one night was ceasing to be respected. farmers usually preferred employing day-laborers than keeping servants. there were many migrant workers, mainly from ireland, for the busy summer haymaking and harvesting. the children of laborers and of small farmers had little schooling because they were needed for work. they scared the birds, weeded the fields, picked the stones, tended the poultry, set beans, combed the wool, and collected the rushes and dipped them in the tallow. farm people relied on well water or rain water collected in lead cisterns. a farmhouse fireplace had pots hung from iron rods. saucepans sat on iron stands, which were stored above the mantel when not in use. spits were rotated by pulleys powered by the upward current of hot air or by a mechanical device. bacon was smoked in the chimney accessible by a staircase or upper floor. there still existed customary freeholders, who owned their land subject to certain customary obligations to the lord of a manor. the people displaced by enclosure became laborers dependent on wages or paupers. their discontent was expressed in this poem: - "they hang the man and flog the woman - - that steals a goose from off the common - - but leave the greater criminal loose - - that steals the common from the goose." eventually there was some relief given to the poor workers. by statute of , wastes, commons, and fields having several owners with different interests might by three-quarters vote in number and in value of the occupiers cultivate such for up to six years. however, cottagers and those with certain sheep walks, or cattle pasture, could not be excluded from their rights of common. by statute of , the elizabethan statute restricting locations where cottages could be erected and their inhabitants was repealed because the industrious poor were under great difficulties to procure habitations. land could be rented out at ten times the original value. land was typically rented out for , , or years. great fortunes were made by large landowners who built grand country estates. the manufacturers and merchants made much money, but agriculture was still the basis of the national wealth. as the population grew, the number of people in the manufacturing classes was almost that of the agriculturalists, but they had at least twice the income of the agriculturalists. the greatest industry after agriculture was cloth. most of this activity took places in the homes, but families could earn more if each family member was willing to exchange the informality of domestic work for the long hours and harsh discipline of the factory or workshop. more wool was made into cloth in the country. dyed and finished wool cloth and less raw wool and unfinished broadcloth, was exported. bleaching was done by protracted washing and open-air drying in "bleach fields". there were great advances in the technology of making cloth. thomas lombe, the son of a weaver, became a mercer and merchant in london. he went to italy to discover their secret in manufacturing silk so inexpensively. he not only found his way in to see their silk machines, but made some drawings and sent them to england hidden in pieces of silk. he got a patent in and he and his brother set up a mill using water power to twist together the silk fibers from the cocoons into thread -in . his factory was five hundred feet long and about five stories high. one water wheel worked the vast number of parts on the machines. the machines inside were very tall, cylindrical in shape, and rotated on vertical axes. several rows of bobbins, set on the circumference, received the threads, and by a rapid rotary movement gave them the necessary twist. at the top the thrown silk was automatically wound on a winder, all ready to be made into hanks [coils] for sale. the workman's chief task was to reknot the threads whenever they broke. each man was in charge of sixty threads. there were three hundred workmen. lombe made a fortune of , pounds and was knighted and made an alderman of london. after his patent expired in , his mill became the prototype for later cotton and wool spinning mills in the later s. there were many woolen manufacture towns. clothiers might employ up to three thousand workers. at these, the spinning was done by unskilled labor, especially women and children in villages and towns. weaving, wool combing, and carding were skilled occupations. in , clockmaker and weaver john kay invented a flying shuttle for weaving. it was fitted with small wheels and set in a kind of wooden groove. on either side there were two wooden hammers hung on horizontal rods to give the shuttle and to and fro action. the two hammers were bound together by two strings attached to a single handle, so that with one hand the shuttle could be driven either way. with a sharp tap by the weaver, first one and then the other hammer moved on its rod. it hit the shuttle, which slid along its groove. at the end of each rod there was a spring to stop the hammer and replace it in position. the flying shuttle doubled the weavers' output. now the broadest cloth could be woven by one man instead of two. this shuttle was used in a machine for cotton. but the manufacturers who used the flying shuttle combined together and refused to pay royalties to kay, who was ruined by legal expenses. now the price of thread rose because of increased demand for it. the weavers, who had to pay the spinners, then found it hard to make a living. but the process of spinning was soon to catch up. in , john wyatt, a ship's carpenter who also invented the harpoon shot from a gun, patented a spinning machine whereby carded wool or cotton was joined together to make a long and narrow mass. one end of this mass was drawn in between a pair of rotating rollers, of which one surface was smooth and the other rough, indented, or covered with leather, cloth, shagg, hair, brushes, or points of metal. from here, the mass went between another set of rollers, which were moving faster than the first pair. this stretched the mass and drew it into any degree of fineness of thread by adjusting the speed of the second pair of rollers. then the thread went by a flier, which twisted it. after this the thread was wound off onto spindles or bobbins, whose rotation was regulated by the faster pair of rollers. or the mass could be drawn by rotating spindles directly from one pair of rollers. this machine was worked by two donkeys and was tended by ten female workers. because of bankruptcy in , the invention was sold to edward cave, the editor of "gentleman's magazine". he set up a workshop with five machines, each fitted with fifty spindles and worked by water wheels. carding was done by cylindrical carding machines invented by lewis paul. in , the plant was bought by carpenter and weaver james hargreaves. he was watching his wife spin when the spinning wheel tipped over onto its side. it continued to revolve, while the thread, held between two fingers, seemed to be spinning itself, even though the spindle was in a vertical instead of a horizontal position. it occurred to him that a large number of vertical spindles arranged side by side could be turned by the same wheel and that, therefore, many threads could be spun at once. he named his machine the "the jenny" after his wife. this "spinning jenny" could spin a hundred threads at a time. he patented it about . the machine consisted of a rectangular frame on four legs. at one end was a row of vertical spindles. across the frame were two parallel wooden rails, lying close together, which were mounted on a sort of carriage and slid backwards and forwards as desired. the cotton, which had been previously carded, stretched, and twisted passed between the two rails and then was wound on spindles. with one hand the spinner worked the carriage backwards and forwards, and with the other he turned the handle which worked the spindles. in this way, the thread was drawn and twisted at the same time. the jenny did the work of about spinning wheels. no longer did it take ten spinners to keep one weaver busy. but manufacturers refused to pay him royalties for his invention. he was offered , pounds for his rights in the jenny, but refused it. the courts held that the model of his jenny had been used in industry before it was patented and any rights he may have had were declared to have lapsed. nevertheless, he made over , pounds. the spinning jenny was used in many homes. richard arkwright came from a poor family and was taught to read by an uncle. he became a barber and made wigs. he taught himself crafts necessary to invent and patent in a spinning frame worked by a water wheel, which he called a" water frame". he strengthened cotton thread by adding rollers to the spinning process which were able to strengthen the cotton thread and make it of even thickness so that it could be used instead of costly linen as the warp. with capital from two rich hosiers, he set up a workshop next to a swift and powerful river running down a narrow gorge. then he turned his attention to weaving this thread with multiple spinning wheels in the first practical cotton mill factory. in , he set up weaving workshops making pure cotton calicoes which were as good as indian calicoes. this was the first all-cotton cloth made in england. he had confronted and solved the problem of a statute of which proscribed wearing or using printed, painted, stained or dyed calicoes e.g. in apparel, bed, chair, cushion, window curtain, and furniture, except those dyed all in blue, or else forfeit pounds by a seller, pounds by a wearer, and pounds by other users. the purpose was to provide wool-working jobs to the poor, whose numbers had been increasing excessively because of lack of work. arkwright argued that the statute should not include printed or painted cloth made in great britain in its ancient tradition of fustians with an all linen warp for strength and a cotton weft for fineness. this statute was so "clarified" in . when wool-weavers had expressed their opposition to imported printed cottons and calicoes by tearing them off people, a statute of provided that any one who willfully and maliciously assaulted a person in the public streets or highways with an intent to tear, spoil, cut, burn, or deface the garments or clothes of such person and carried this out was guilty of felony punishable by transportation for seven years. the prohibition against the manufacture and wearing and using of pure cotton fabrics came to an end in on arguments of arkwright made to parliament that his pure cottons would bleach, print, wash and wear better than fustians. in , arkwright added machines to do work prefatory to spinning. raw cotton was first fed by a sloping hose to a feeder that was perpetually revolving. from here it went a carding machine of three rollers of different diameters covered with bent metal teeth. the first, with teeth bent in the direction of its revolution, caught up the cotton fibers. the second, revolving in the same direction but much faster, carded the fibers into the requisite fineness by contact with the third, whose teeth and motion were in the opposite direction. next, a crank and comb detached the carded cotton so that it came off as a continuous ribbon. then the ribbon went into a revolving cone, which twisted it on itself. eventually arkwright became rich from his creation of the modern factory, which was widely copied. he established discipline in his mills and he made his presence felt everywhere there, watching his men and obtaining from them the steadiest and most careful work. he provided housing and services to attract workers. after cotton, the inventions of the spinning jenny and the water- powered frame were applied to wool. silk and cotton manufacture led the way in using new machinery because they were recently imported industries so not bound down by tradition and legal restraint. yarn production so improved that weavers became very prosperous. cards with metal teeth challenged the use of wood and horn cards with thistles on them in carding wool. merchants who traveled all over the world and saw new selling opportunities, and therefore kept encouraging the manufacturers to increase their production and improve their methods. factory owners united to present suggestions to parliament. manufacturing broke loose from traditional confines in several ways. to avoid the monopolistic confines of chartered towns, many entrepreneurs set up new industries in birmingham or manchester, which grew enormously. manchester had no municipal corporation and was still under the jurisdiction of a manor court. it sent no representative to the house of commons. all over the country the justices of the peace had largely ceased regulating wages, especially in the newer industries such as cotton, where apprenticeship was optional. apprenticeship lapsed in many industries, excepting the older crafts. several legal decisions had declared seven years practice of a trade as good as an apprenticeship. apprentices still lived in their masters' houses and were still treated as family members. the regulations of the cutlers' company remained in force as its masters used their great manual skill to make cutlery in their own homes with the help of their children and apprentices. trades in some towns which had guild regulations that had the force of law hung on to their customs with difficulty. although there were few large factories in the country under effective management of a capitalist, trade unionism was beginning as two distinct classes of men were being formed in factories. the factory owner was so high above his workmen that he found himself on the same level as other capitalists, the banker, who gave him credit, and the merchant, who gave him customers. journeymen in factories could no longer aspire to become masters of their trade and no longer socialized with their employers. hard and fast rules replaced the freedom of the small workshops. each worker had his allotted place and his strictly defined and invariable duty. everyone had to work, steadily and without stopping, under the vigilant eye of a foreman who secured obedience by means of fines, physical means, or dismissals. work started, meals were eaten, and work stopped at fixed hours, signaled by the ringing of a bell. factory hours were typically fourteen hours or more. organized resistance, as usual, began not with those most ill-treated, but with those men who had some bargaining power through their skills. wool-combers, who worked next to a charcoal stove where they heated the teeth of the comb, were the most skilled of the cloth industry were hard to replace. since they were nomadic, they quickly organized nation-wide. they agreed that if any employer hired a comber not in their organization, none of them would work for him. they also would beat up and destroy the comb-pot of the outsider. in and , the tiverton wool-combers objected to the import of combed wool from ireland by burning irish wool in clothiers' stores and attacking several houses. they had strike funds and went on strike in . their bloody brawls caused the military to intervene. then many of them left town in a body, harming the local industry. the earnings of wool-combers was high, reaching from s. to s. a week in , the highest rate of a weaver. in , the colchester weavers accused their employers of taking on too many apprentices. when the weavers organized and sought to regulate the weaving trade, a statute was passed in making their combinations void. strike offenses such as housebreaking and destruction of goods or personal threats had penalties of transportation for seven years. still in , the gloucester weavers protested against men being employed who had not served their apprenticeship. when the journeymen tailors in and around london organized a union, a statute made their agreements entering into combinations to advance their wages to unreasonable prices and to lessen their usual hours of work, illegal and void, because this had encouraged idleness and increased the number of poor. tailors' wages were not to exceed s. per day and their hours of work were to be a.m. to p.m. for the next three months, and s. d. per day for the rest of the year. a master tailor paying more would forfeit pounds. a journeyman receiving more was sent to the house of correction for months. justices of the peace could still alter these wages and hours depending on local scarcity or plenty. despite this statute, the journeymen tailors complained to parliament of their low wages and lack of work due to their masters calling them to work only about half the year. there was much seasonal fluctuation in their trade as there was in all trades. the slack period for the tailors was the winter, when the people of fashion retired to their country estates. after their complaint, their wages then rose from s. d. per day in , to s. d.- s. in , to s.- s. d. in , to s. d.- s. d. in , to up to s. / d. in , and to s. in . foremen were excluded from wage control. when they complained of their long hours, which were two hours longer than the a.m. to p.m. of most handicraft trades, their hours were reduced in by one hour to a.m. to p.m. and their pay was set at d. per hour for overtime work at night during periods of general mourning, e.g. mourning for a deceased courtier. their work hours were lowered another hour to a.m. to p.m. in . the stocking frame-knitters guild, which had been chartered in , went on strike to protest the use of workhouse children as an abuse of apprenticeship which lowered their wages. they broke many of their frames, which belonged to their employers, to limit their number. in , combinations to advance wages, decrease hours of work, or regulate prices were declared void for journeymen dyers, journeyman hot pressers, all wool workers, brickmakers and tilemakers, journeymen servants, workmen, laborers, felt and hat makers, and silk, linen, cotton, iron, leather, and fur workers in and around london. the penalty was prison or hard labor at a house of correction for three months without bail. in , justices of the peace were to determine the rates of wages of wool workers according to numbers of yards. but this was repealed the next year to prevent combinations of workers. wage agreements between clothiers and weavers were declared binding. clothiers not paying wages within two days of delivery of work forfeited s. in the silk weavers in east london drew up a scale of wages, and upon its being rejected, of them broke their tools, destroyed the materials, and left their workshops. a battalion of guards had to take possession of the area. in , the silk weavers marched on westminster to stop the import of french silks. in , the weavers rebelled against a d. per yard reduction in their wages, filling the streets in riotous crowds and pillaging houses. after the garrison of the tower came, the workmen resisted with cudgels and cutlasses, resulting in deaths and woundings. the throwsters [those who pulled the silk fibers from the cocoons of the silk worms and twisted them together to make a thread] and the handkerchief weavers also became discontent. a battle between soldiers and silk weavers at their meeting place resulted in several men on both sides being killed. in , wages and prices for the work of journeymen silk weavers in and around london were designated to be regulated by the mayor and justices of the peace. foremen were excluded. no silk weaver could have more than two apprentices or else forfeit pounds. journeymen weavers entering into combinations forfeited s. this statute satisfied the weavers, but they formed a union to ensure that it was followed. in , , and , there were strikes which stopped the work of the coal industry and harbor at newcastle for weeks. in , the keelmen formed a combination to force their employers to use the official measure fixed by statute for the measurement of loads of coals. the book "consideration upon the east-india trade" dating from advocated free foreign trade. it argued that the import of goods from india not only benefited the consumer but also the nation, because it was a waste of labor to use it in producing goods which could be bought cheap abroad. this labor could be better put to use at easily learned plain work in the new industries. also the low cost of imported goods would motivate the invention of machines in the nation which would be even more efficient in manufacturing these goods. but english manufacturers were still suspicious of free trade. making beer and distilling gin from barley were widespread. the pastimes of gambling and drinking were popular with all classes. in the trades, this was promoted by the uncertainties of life and work and a general sense of instability. many london tradesmen started their day with a breakfast of beer, bread, and cheese, the traditional breakfast of countrymen. gambling and dissipation reduced some london men with good businesses to destitution, the work house, or street begging. drunken gentlemen played pranks such as imitating a woman in distress or throwing a person in a horse trough. some innkeepers had "straw houses" where customers who were so drunk they were unable to walk home could sleep in fresh straw. a person could get drunk for a few pence. gambling with cards was a popular pastime after dinner. cricket matches were played by all classes instead of just by humbler people; there were county cricket matches. gentlemen often took their coachmen with them to public events such as cricket matches. tennis was a sport of the wealthy classes. billiards, chess, and games with cards or dice were played, especially in alehouses. there was horse racing on any open ground to which people brought their horses to race. jockeys tried to unseat each other. hunting of rabbits and then foxes replaced deer hunting. bird and duck hunting was usually with flint lock guns instead of hawks, as the hedges provided cover from hawks. there was fishing with line, hook, and bait. watching the hanging of felons, about a year in london, was popular, as was going to bedlam to watch for a fee the insane being flogged. people went to the tower to try to get a glance at a famous prisoner looking through a window or taking a walk along the battlements. besides the grand pleasure gardens for gentry, there were lesser pleasure gardens in london for working families, which offered fresh air, tea, beer, swimming, fishing, courting, bowling, and cheap entertainment. running, vaulting, and leaping were still popular in the countryside. fairs had amusements such as fire swallowers, ventriloquists, puppet shows, acrobats, jugglers, animal performances, pantomimes, boxing, dwarfs, and albinos, but less trading. in was the first circus. circuses included feats of horsemanship and clowns. there was also eating and drinking competitions, foot races, football, archery, some wrestling, and some bowling on greens or alleys. in winter there was ice skating with blades and sliding. the right of public access to st. james park became entrenched by the s. there was sailing, rowing, swimming, and hopscotch. george iii made sea-bathing popular and it was supposed to be good for one's health. there was steeple chasing as of . horse-racing was given rules. on sunday, there was no singing, music playing, dancing, or games, but the bible was read aloud, prayers were said, and hymns were sung. sabbath-breakers were fined by magistrates. men often spent sunday in a tavern. in general, commodity prices were stable. but when harvests were poor, such as in when there was famine, and between and , bread prices rose. the price of wheat in london, which since had been between s. and s., rose to s. in . then the poor engaged in food riots. these riots were often accompanied by mob violence, burning, and looting of grain mills, shops, and markets. the english economy was so dependent on foreign trade, which had trebled since the s, that the slightest disturbance in the maritime trade threatened the english with starvation. in many localities the men in need of parochial relief were sent around from one farm to another for employment, part of their wages being paid from the poor rates. the poor often went from parish to parish seeking poor relief. settled people tended to fear wandering people. parishes sought to keep down their poor rates by devices such as removing mothers in labor lest the infant be born in the parish. so a statute was passed that a child born to a wandering woman could not have the place of birth as his settlement, but takes the same settlement as his mother. another device to prevent others from establishing settlement in a parish was for its farmers to hire laborers for only fifty-one weeks. also, some apprentices were bound by means other than indenture to avoid settlement. laborers who came to work in industries were refused settlement and sent back to their original parishes whenever they seemed likely to become dependent on the rates. statutes then provided that a parish must give settlement to apprentices bound for forty days there, not only by indenture, but by deed, writings, or contracts not indented. in , parishes were authorized to purchase houses in which to lodge or employ the poor and to contract with any person for the lodging, keeping, maintaining, and employing of the poor. these persons could take the benefit of the work, labor, and service of these poor, which was then used for the relief of other poor. the poor refusing such lodging could not then get relief. many of the poor starved to death. the propertied classes turned a blind eye to the predicament of the poor, opining that they were idle or could save more and did not need higher earnings. charitable organizations gave to the poor and set up all day sunday schools to set wayward children on a moral path. the sunday schools could accommodate children who worked during the week. punishment of children by parents or others could be by whipping or even sitting in stocks. about half of the people were dependent on poor relief or charities. desertion by a man of his family was a common offense. parishes providing upkeep for the family sent men to find the errant husbands. the parish would ask unmarried mothers who was the father of their child and then force him to marry her or pay for the upkeep of the child. he often made a bargain with the parish to release him of his obligation for a sum of money paid to the parish. but many young parish children died of neglect, and later, parishes were required to list children under four to aid in accounting for them. divorces were still few and expensive, but increasing in number; there were more in this period. it was easier for a man to get a divorce for one act of adultery by his wife, than for a wife to get one for habitual unfaithfulness. vagrants and other offenders could be committed to houses of correction as well as to county gaols, because of the expense of the latter. crime was exacerbated by orgies of liquor drinking by the common people, especially between and , the sale of which did not have to be licensed as did ale. in , it was required that retailers of brandy, rum, and other distilled spirituous liquors be licensed and to pay pounds a year for their license, because excessive use had been detrimental to health, rendering persons unfit for useful labor and business, debauching their morals, and inciting them to vices. only persons keeping public victualing houses, inns, coffee houses, alehouses or brandy shops who exercised no other trade were allowed to obtain a license. this excluded employers who had sold liquors to their journeymen, workmen, servants, and laborers at exorbitant prices. street vendors who sold liquors had to forfeit pounds. a duty of s. per gallon was imposed on the retailers. there were riots in london against this statute and its new duties. there had been a tremendous growth in liquor drinking, which did not stop but went underground after this statute. in , a penalty of pounds or hard labor for two months was made for selling spirituous liquors without a license. also licenses were restricted to people who were certified by four reputable and substantial householders to be of good fame and sober life and conversation. sellers had to maintain good order in their premises or else forfeit pounds. about only innkeepers, victualers, and vendors paying rent of at least shillings could sell gin at retail. the punishment for the second offense was whipping and imprisonment. that for the third offense was transportation out of the country. in , additional duties were placed on spirituous liquors to discourage immoderate drinking going on by people of the meanest and lowest sort to the detriment of the health and morals of the common people. in , these duties were again raised. in , officers were authorized to seize all horses, cattle, and carriages used to transport foreign spirituous liquors for which duties had been evaded. in , the penalty for selling without a license was raised to pounds, which could not be mitigated below pounds. half the forfeiture was to go to the suer. the informer system for enforcing laws had its drawbacks. informers were not trained and were sometimes retaliated against for informing. sometimes this meant being tortured to death. sometimes there were schemes in which a leader of thieves, would take a profit in the stolen goods by posing as a good citizen who tracked down and returned them to the owners for a fee. also he might inform on his companions to get the reward for informing or to punish a troublesome one. sometimes the owner of goods was involved in a fake robbery. an effort in to turn the whole haphazard system of informers, into a specialized organization for the detection and apprehension of criminals had caused a mob to form and make threats. englishmen associated a police force with french tyranny. nevertheless, about , sir john fielding, a bow street magistrate, and his half-brother picked men to police the street under the direct control of the bow street magistrates. this first police district made an impact on the increasing violence of the times. in , a proposal before parliament to have a national census was also defeated by public fear of liberty being curtailed by having to make account of the number and circumstances of one's family and giving out information that could be used by enemies both in the realm and abroad. in , the mercury thermometer was invented by gabriel fahrenheit of germany; this was much more accurate than the alcohol and water thermometers. sweden's anders celcius invented the celsius scale. the hydrometer, which measures air humidity, was also invented. these made possible weather forecasting. in , the french chemist etienne geoffroy published a table of affinities among chemical substances, a precursor to the periodic table of elements. carolus linneaus, a swedish naturalist and botanist, established the scientific method of naming plants and animals by genus and species. when he showed that there was a sexual system in plants, church authorities were so shocked that they suppressed this knowledge as they did other scientific knowledge. rev. stephen hales made ventilators for ships, prisons, and granaries, using the method of injecting air with bellows. this saved many lives in the prisons. in , he discovered that water that plants lost by evaporation was restored by the roots up the stems. he found that gas could be obtained from plants by dry distillation and invented a way to collect gases by heating certain substances. hans sloane, the son of a receiver-general of taxes, who became a physician, had collected hundreds of species of plants in jamacia while physician to its governor. he became physician to george ii and was a benefactor to many hospitals and devised a botanic garden in london for the society of apothecaries. italian luigi marsigli started the science of oceanography with a treatise discussing topography, circulation, ocean plants and animals, along with many measurements. frenchman jean-etienne guettard prepared the first true geological maps, showing rocks and minerals. he identified heat as the causative factor of change in the earth's landforms. john mitchell studied earthquakes. in , george hadley, a london lawyer and philosopher, determined that the cause of the prevailing westerly winds was the rotation of the earth to the east. benjamin franklin in observed that a particularly violent storm occurred in boston a day after a particularly violent occurred in philadelphia, and realized that they were the same storm, even though the storm's surface winds were from the northeast. he determined that atlantic coastal storms traveled from the southwest to the northeast. in , he prepared the first scientific chart of the gulf stream. daniel bernoulli, a swiss university lecturer in physics, mechanics, medicine, and anatomy, proved his theorem that any degree of statistical accuracy can be obtained by sufficiently increasing the observations, thereby also representing the first application of calculus to probability theory. in , he showed that as the velocity of horizontal fluid flow increases, its pressure decreases. this followed from his theorem that the total mechanical energy of a flowing liquid, comprising the energy associated with fluid pressure, the gravitational potential energy of elevation, and kinetic energy of fluid motion remains constant; that is, the mechanical energy is conserved. this was the first mathematical study of fluid flow. he demonstrated that the impact of molecules on a surface would explain pressure, and that assuming the constant random motion of molecules, pressure and motion will increase with temperature. he explained the behavior of gases with changing pressure and temperature, establishing the kinetic theory of gases. jean nollet from france discovered osmosis, the passage of a solution through a semi-permeable membrane separating two solutions with different concentrations. in , scotsman physician joseph black identified carbon dioxide, the first gas recognized as distinct from everyday breathing air. he did this by using a balance to weigh alkalies before and after exposure to heat. they lost weight by losing carbon dioxide. his development of the concept of latent heat, the quantity of heat absorbed or released when a substance changes its physical phase at constant temperature, was the first application of quantitative analysis to chemical reactions. he ascertained the effects of carbon dioxide on animals and its production by respiration, fermentation, and burning of charcoal. at this time, all flammable materials were thought to contain "phlogiston", which was given off as they burned and was associated with the transfer of heat. plants were thought to remove phlogiston from the air and therefore burned when they were dry. in , joseph priestley, a nonconformist minister, schoolmaster, and tutor, identified oxygen by heating red oxide of mercury. he had become interested in the study of gases by watching the process of fermentation in a brewery next to his house. using a candle, mice, and plants in jars sealed over water, he showed that the processes of combustion, respiration, and putrefaction caused one-fifth of air exposed over water to disappear, and that plants restored air vitiated by these processes. this discovery of where breathable air comes from helped explain the system of life on the planet. when he isolated oxygen, he noted that it was better than air in supporting respiration and combustion. hydrogen (inflammable air) and nitrogen were discovered. the differences between acids, bases, and salts and their relationship to one another became understood. there was some theoretical as well as empirical knowledge about metals, e.g. in boiling points, intermetallic compounds, and changes in properties. in , benjamin frankin invented the franklin stove, which greatly improved heating efficiency. as a freestanding cast-iron fireplace, it supplied heat in all directions instead of only from the one direction of the usual wall fireplace. also, the heat absorbed by its cast-iron sides provided warmth even after the fire went out. static electricity was being discerned. it had been noticed that shaking a mercury barometer produced a strange glow in its "vacuum". experiments showed that a glass rubbed in vacuo would shine brightly and that an exhausted glass globe rapidly whirled on a spindle and rubbing against the hand produced a brilliant glow. and further, as newton wrote: "if at the same time a piece of white paper or white cloth, or the end of ones finger be held at the distance of about a quarter of an inch or half an inch from that part of the glass where it is most in motion, the electric vapor which is excited by the friction of the glass against the hand, will by dashing against the white paper, cloth, or finger, be put into such an agitation as to emit light, and make the white paper, cloth, or finger, appear lucid like a glowworm". in the study of electricity, conductors and insulators were recognized. there were demonstrations of electrical phenomena such as seeing the ignition of brandy by a spark shooting from a man's finger and the feeling the transfer of an electrical impulse created from a rubbed glass globe among a circle of people by their holding hands. in , frenchman charles dufay discovered that there are two types of static electric charges, and that like charges repel each other while unlike charges attract, linking electricity to magnetism. in , benjamin franklin "caught" lightning with a sharp pointed wire attached to the top of a kite which led down to a key at the other end. when a thunder cloud electrified the kite, a charge was seen coming from the key to an approaching finger. this charge was then stored in an early type of capacitosr, a leyden jar, and then reproduced to create the same feeling of transfer of electrical impulse among a circle of hand-holders, thereby illustrating that it was the same phenomenon as electricity. this countered the theological belief that thunder and lightning were signs of divine displeasure or the work of the devil. franklin invented the lightening rod, which was then used to protect buildings. about ten years later, the first lightening rod on an english church was erected, which showed the church's acceptance of his theory. franklin theorized that there were electric charges everywhere and designated them as positive or negative. he observed that opposite charges attracted each other, but that like charges repelled each other. in , joseph priestly did an experiment suggested by franklin and showed that electrical force follows the same law as gravitational force; that is, that the attraction or repulsion between two electrical charges varies inversely in proportion to the square of the distance between them. joseph-louis lagrange from france developed differential equations. natural history museums were established. a group split off from the royal society to show collections of curiosities. in , a self-educated mechanic founded the society for the encouragement of arts, manufactures, and commerce. it had sections on agriculture, manufactures, mechanics, chemistry, liberal arts, and trade and colonies. it sponsored contests at which prizes were given, such as that in for the best invention of a machine that would spin six threads of wool, flax, cotton, or silk at one time with only one person attending it. machines still mostly relied on human, animal, and water power. abraham darby was a quaker and millwright who made large cooking pots of iron, which cost less than bronze. around , he experimented with various substances to take the place of wood charcoal in iron smelting. coal was a remote possibility. in forging or working metals coal had more or less the same qualities as wood charcoal, but this was not the case in smelting ores, especially iron ore. coal contained sulphur compounds which caused the iron ore to deteriorate. so he controlled the burning of coal to burn out these impurities, which produced coke. his son took over after his death and improved the methods of coking, strengthened the bellows, and added ore limestone and other reagents to the mixture. by , his large blast furnace using both pit coal and wood charcoal was very productive. he made iron goods of such quality as those imported. in , richard reynolds replaced the wooden rails connecting a blast furnace to mines with cast iron rails. he had apprenticed as a grocer and then became a partner in a large ironworks of darby with a man whose daughter he married. after darby died and before darby's sons became of age, reynolds was in charge of the ironworks. he cast cylinders of the early steam engines. in john roebuck, a physician and son of a prosperous manufacturer of sheffield goods, found a cheaper way to manufacture sulphuric acid. he did this by using leaden chambers instead of glass globes to collect the vapor from burning nitre and sulphur over water. this reduced the cost of sulfuric acid to one-fourth of its previous cost, so that sulfuric acid came to be used to bleach linen instead of sour milk. he also made cast iron into malleable iron by smelting iron using coke from pit-coal instead of charcoal. but flooding in his mines and further ventures resulted in his ruin and bankruptcy. thomas newcomen, a baptist ironmonger, blacksmith, and locksmith, supplied iron tools to mine workers. he was aware of the problem of flooding of mines and the awkward system of pumps which were used one above the other and were powered by teams of horses. he made a very valuable contribution to power generation by inventing the atmospheric pressure steam engine with piston around . he did this by connecting theory with experiment, through the use of scientific knowledge, especially the royal society's investigation into atmospheric pressure. first cold water was poured on a cylinder in which a piston could move up and down. this caused steam inside the cylinder to cool and condense into water. the vacuum created inside the cylinder under the piston caused atmospheric pressure on top of the piston to push the piston down. the piston was attached by a rod to the end of a beam which end then swung down from a point on a vertical stand to which it was attached. when the beam swung, its other end, which was attached to a rod connected to a pump, rose, thus working the pump. then steam from water heated in a boiler under and communicating with the cylinder was allowed into the cylinder under the piston. this overcame the atmospheric pressure on the piston from above and allowed the piston to rise by a counterweight on the rod over and connecting to the pump. boys opened and closed the steam valve, which let steam into the cylinder from below, and the water valve, which let cold water pour on the cylinder from above. then the boys were replaced by the valves being connected to the swinging beam which caused them to open and close at perfectly regular intervals. a story gives the credit for this improvement to an inventive valve boy who wanted to play with his friends. in , the mining industry used this steam engine to pump water out of mine-shafts which had flooded. these engines were also used to supply water to reservoirs' locks at canals, and drinking water facilities in towns. one such engine developed power equivalent to fifty horses working at one sixth the cost. it was the first automatic machine since the clock. then james watt invented the steam engine which used steam as a force acting on the piston. watt made his living making scientific instruments for glasgow university. around , he was fixing one of newcomen's engines belonging to the university, when he saw its inefficiencies, such as the loss of heat when the cylinder was cooled. he saved this heat energy by having the steam condensed in another vessel distinct but connected to the cylinder. this condenser was kept constantly cool by cold water. so the condensed steam was pumped back into the boiler and it circulated continuously, thus obviating the need for constant resupply of water. in order to avoid the necessity of using water to keep the piston air-tight, and also to prevent the air from cooling the cylinder during the descent of the piston, he used the expansion of the steam to push the piston instead of atmospheric pressure. then, in order to expand the use of the steam engine beyond that of a pump, he converted the oscillating motion of the beam into rotary motion. he formed a partnership with john roebuck, who had a two-thirds interest. but when roebuck needed money, he sold his interest to matthew boulton. boulton wanted better power that that of his watermill for his workshops that made metal buttons, watch chains, shoebuckles of engraved steel, ornamental bronzes, vases, chandeliers, tripods, silver and plated wares, and imitation gold and tortoiseshell work. in dry weather, about eight horses were needed to aid in driving the machinery. a steam pump could pump water from the bottom of the watermill to the top to be used again. he had built up this factory of five buildings and six hundred workers, with , pounds derived from his marriage to an heiress. by , the partnership had built a model steam engine with rotary power whose design could be sold. the price of the engine was set as the amount of money saved on fuel costs in the first three years of its operation. this machine was a relatively economical user of energy, capable of performing almost any kind of work. about , john wilkinson, the son of a farmer who also oversaw an iron furnace, substituted mineral coal for wood charcoal in the smelting and puddling of iron ore. in , he made it possible to transport coal out of mines on rail wagons drawn by horses. as father of the iron industry, he made iron chairs, vats for breweries and distilleries, and iron pipes of all sizes. with his invention of the first precision boring machine, he provided watt with metal cylinders of perfectly accurate shape, which were necessary for the smooth working of watt's steam engine. in he bought a pumping steam engine from boulton and watt's company for his ironworks. it pumped three times as fast as newcomen's engine. watt's steam engine came to be used for power-loom weaving and then for all sorts of manufactures. it would put england ahead of every manufacturing country in the world. millwrights built, installed, and later designed not only steam engines but the machinery that they drove. these men were essential in setting up the first factories. they were the most imaginative and resourceful craftsmen. they knew how to use a turner's, a carpenter's and a blacksmith's tools and had supervised or done smith work, brick-laying or stone-mason's work in erecting and maintaining windmills with their many gears and bearings. there was a good deal of variety in mills, as well as in the structure and workmanship of them, some being worked by horses, some by wind, and others by water. they had some knowledge of arithmetic and practical mechanics. they could draw out a plan and calculate the speed and power of a wheel. although technically in a branch of carpentry, the millwrights learned to work with metal as well. metal was superior to wood not only because of its strength but because wood parts were irregular in motion and wore out rapidly. so iron and brass parts came to replace wood and leather parts. in , j. paine got a patent for rolling iron instead of hammering it. the iron bars, being heated in a long hot arch or cavern passed between two large metal rollers, which had certain notches or furrows on their surfaces. clockmaker and quaker benjamin huntsman was struck with the difficulty of finding finely tempered steel for the springs of his watches and pendulums of his clocks. he experimented for years to find a homogeneous and flawless metal, and finally, in , invented cast steel, which had high tensile strength and was much harder than ordinary steel. he did this by remelting refined high quality wrought iron bars at very high temperatures in sealed fireclay crucibles, together with small quantities of charcoal and ground glass as reagents. this distributed the carbon evenly in the metal, which hammering could not do. he approached the sheffield cutlers, who finally agreed to try his cast steel for fear of losing their business to some other manufacturers who were approaching huntsman. since huntsman had no patent, he worked at night and employed only men who would keep his secret. his steel was made at night. his factory became prosperous about and the excellence of his steel manufacture was never equaled. steel and wrought iron was scarce and expensive. around , iron founder samuel walker, discovered huntsman's secret by appearing at huntsman's factory disguised as a shivering tramp who asked to warm himself by the furnace fire. he feigned sleep while watching the whole process. when he began to make cast steel, his annual output grew from pounds in to , pounds in and he made a fortune. silver was plated over copper from . white metal from tin and antimony was used from about . the brass industry was beginning to produce brass from copper and zinc that was as good as foreign brass. the secret of plate-glass manufacture came to england in the s. in , a corporation was set up for the manufacture of plate glass. it could raise joint-stock because of the great risk and large expense of the undertaking. in , chemist william cookworthy was given a fourteen year patent for the discovery of certain clay and stone in england from which he made england's first true porcelain, i.e. that which could sustain the most extreme degree of fire without melting, and also had grain as smooth and lustrous, and the transparency and beauty of color, equal in degree to the best chinese or dresden porcelain. the import duties on diamonds, pearls, rubies, emeralds and other precious stones and jewels was dropped to increase the business of cutting and polishing them. the world's first chocolate factory was set up in england in . milk was added to chocolate. the fanmakers were incorporated in . a linen company to sell cambricks [a fine white linen] and lawns [a thin and fine linen] was incorporated in . a free market for fish was established in westminster to supplement the free fish market in london to prevent forestalling and monopolizing of the fish industry and to increase the number of fishermen. duties for its maintenance were paid by the fishermen. certain men were given the right to incorporate fisheries of white herring for twenty one years to improve the fisheries and give employment to the poor. they were authorized to sell subscriptions and to build ships provided the fishery employ , in such fishery. there were restrictions on taking fish from rivers during their breeding season. herring fishermen were allowed to land and dry their nets and erect tents and pickle, cure, and reload fish on uncultivated land up to yards beyond the high water mark all any shore, forelands, harbors, and ports, without paying the landholder. later, a bounty of s. per ton was authorized to be given for vessels that were fitted out and used for white herring fishery. anyone wishing to be admitted to the levant (turkey) trading company was to be made free of such on paying pounds, so that this trade might be increased. in the s the first cooking school was established by mrs. elizabeth raffald, a servant. as for health, there were many occupational hazards. these included paralysis by mercury of refiners of silver and gold, paralysis by mercurial fumes of molten lead by plumbers, palsy of glaziers working with melted lead and of watch gilders, lead poisoning of painters, blinding by sawdust of sawyers, and the affects of fumes on pewterers and letter founders. particles of copper were breathed in by copper workers, whose hair and beards then turned green. braziers became deaf. hairdressers, bakers, masons, bricklayers' laborers, coal heavers, chimney sweeps, flax and feather dressers, and workers in leather warehouses suffered pulmonary diseases. chimney sweeps also had warty skin cancer from their bodies being habitually covered with soot and the lethal cancer of the scrotum. working with charcoal fires affected confectioners, chocolate makers, and sail-cloth makers. tanners, catgut makers, and tallow-candle makers became nauseous. heavy work weakened many bodies and caused hernias. bending over work for long hours caused stooped posture and hump backs. the association between dirt and disease was just beginning to be made. the principles of infection and hygiene were not well understood. bathing every couple of months was not unusual. there was some theological feeling that cleanliness betokened pride and filthiness humility. most houses had a bathtub that could be placed beside the fire in a bedroom. about % of the population had been getting smallpox, which blinded, maimed or disfigured many. deaths from smallpox were only occasional in the country, but constant in london, where about % of every generation died from it. making death commonplace, especially in the winter months when thick, dirty clothes were worn day and night, were typhus, which was carried by lice; typhoid, which was spread by flies from horse dung; tuberculosis; and influenza. dysentery and diarrhea made death commonplace especially in the summer when flies transmitted bacteria from filth to food and the water was its most foul. there was great meaning in the prayer "now i lay me down to sleep; i pray the lord my soul to keep; if i should die before i wake, i pray the lord my soul to take." thyphus spread easily in hospitals and gaols where vermin could live in the beds made of wood. colds and toothache were also common. venereal disease was not uncommon among the well-to-do in london. condoms were used to deter disease, but were still crude, coarse, uncomfortable, and unreliable. london had almost double the mortality rate of the nation. the number of baptisms in london were about % of its burials. about % of the deaths in london were among children under two, due to infantile diseases fostered by malnutrition, maternal ignorance such as giving babies adult food, ill-health, bad water, dirty food, poor hygiene, and overcrowding. many children died from diptheria, measles, scarlet fever, and smallpox. ten or twelve children with three or four surviving was a common family pattern. many well-to-do in london kept their children in the country for their better health. no matter what the ailment, physicians regularly bled patients and often gave them enemas with wooden funnels. sometimes a blister or irritant was applied to the skin to draw out the evil humors. cupping was used to provide suction to remove pressure from various parts of the body. also used were poultices, ointments, and herbal treatments, notably quinine. opium was given to deaden pain. there were about drugs in use. charms, spells, astrology, and folk remedies still played a major role in medicine. a physician attended surgeries to give advice. physicians could visit apothecary shops once a year and throw away any drugs falling below an arbitrary standard of excellence. in the house of lords decided a jurisdictional contest between the college of physicians and the society of apothecaries. it permitted the apothecaries to direct the remedies as well as to prepare them, although they could only charge for the drugs they provided. the poor sought advice from apothecaries. there was progress in health. scurvy virtually disappeared as a cause of death due to the eating of more vegetables. people were cleaner when wearing cotton, which had to be washed. in , free inoculations for smallpox began in england, pioneered by lady mary wortley montague, also a poet and letter writer. she led the way by having herself and her son inoculated. theologicians denounced this practice as a diabolical interference with disease sent by providence for the punishment of sin. sarah wallen mapp was a famous bone-setter. in surgeon william cheselden, whose master was specially licensed to perform the operation of removing stones in the hospital, reduced the death rate for removing stones due to hemorrhage, shock, and infection down to % by his invention of a lateral operation. he also published an anatomy book and treated certain kinds of blindness by forming an opening in the eye to serve as an artificial pupil. in , claudius aymand conducted the first successful appendectomy. nutritional deficiency diseases were beginning to be understood. in , james lind, a surgeon in the navy who noted that more men died of scurvy than in battle, published his work on his dietary controlled experiment on seamen showing that oranges, lemons, limes, green food, and onions cured scurvy. he published his methods of prevention and cure of malarial fevers and his method of disinfecting ships with the smoke of wood and gunpowder. in , he discovered that steam from salt water was fresh, and proposed a method of distillation to supply ships with fresh water. in giovanni morgagni from italy opined that disease resulted from a breakdown of organs and tissues that was viewable on autopsy. he wrote an extensive book showing the anatomy of diseases, e.g. affections of pericardium and aorta, (e.g. aneurysm), valve diseases, ulceration, rupture, dilation, and hypertrophy. he associated clinical observation with anatomy of disease. for example, pain on the left upper chest, numbness of the left arm, and difficulty breathing occurring together with exertion were associated with dilation of the aorta and hardening of arteries, which caused delay of blood in the aorta, in the heart, and in the lung vessels. bernoulli showed that the living human body constantly changes so that all its particles are renewed in a certain number of years. stephen hale described the first quantitative estimate of blood pressure and fundamental characteristics of blood circulation. in , frenchman dr. pierre fauchard, the father of dentistry, recommended rubbing one's teeth and gums with a piece of sponge. since three out of four babies died shortly after birth, beds in hospitals for pregnant women were established starting in . the next year physicians began to replace midwives. a hospital was established for abandoned foundling children in so they wouldn't die, as they usually did, in the care of parishes or workhouses or be exposed in the streets or left on door steps of the wealthy. it was besieged by women with babies in their arms. in a statute made the principles of the foundling hospital obligatory for all london parish children under six; they were to be sent to nurses outside london who were to be paid at least s. a week by the parish. in , this was extended to all parishes, and nurses who cared for a child well for a year was given a reward of at least s. also, parish children were not allowed to be apprenticed for more than seven years or until age and an apprentice fee of at least pounds, s. was to be paid to the master or mistress by the parish. after , there was a steady growth of population due to improved midwifery. william smellie taught scientific midwifery in london from and wrote a "treatise on midwifery" in , which had a clear explanation of the mechanism of labor. at this time there were several maternity hospitals. forceps existed for difficult deliveries. in , dr. cadogan wrote his book: "an essay on the nursing and management of children, which made a great improvement in the care of young children. for instance, it recommended loose clothing, no tight swaddling clothes, and a simple diet. swaddling clothes were used to retain a baby's evacuations but produced discomfort and serious skin conditions. a hospital was founded for venereal diseases in , another as an asylum for the penitent and orphaned girls who might otherwise be inclined to prostitution, and yet another for prostitutes in . coitus interruptus was widely used for birth control. there were also clandestine abortions and intentional neglect of newborns. melancholy was widespread. suicides were frequent and drugs were sold for this purpose. in , the mentally ill were classified as curable or incurable. there were many private asylums. a lunatic who was furiously mad and dangerous was required to be safely locked up or chained in his place of settlement. there were frequent and dangerous abuses in madhouses, so in , no one was to keep or confine more than one lunatic without a license granted by the royal college of physicians or else forfeit pounds. a justice of the peace and a physician inspected all madhouses to observe conditions and care of patients there. if refused admittance, the license was forfeited. in was the last time a monarch touched a person to cure him of a malady such as scrofula. in surgery students began to dissect corpses with their own hands to better learn anatomy. in the company of surgeons was separated out of the company of barber-surgeons. the barbers were proscribed from performing surgery and had to have a separate corporation from the surgeons because of the ignorance and unskillfulness of barbers healing wounds, blows, and hurts e.g. by blood letting and drawing of teeth. there was a surgeon's hall, officers chosen by the surgeons, and bylaws. the surgeons were required to examine candidates for the position of surgeon in the king's army and navy. they were exempted from parish, ward, and leet offices, and juries. in , a statute provided that the corpses of murderers were to be sent to the surgeon's hall to be anatomized, for the purpose of deterring murders. the penalty for rescuing the corpse of a murderer was to suffer death. the first dispensary for the poor was established in to give free medicine and treatment to the infant poor, and then to the infants of the industrious poor. the progress of science was seen to threaten the authority of the church. there was a general belief in god, but not much attention to jesus. feared to come were free thought, rationalism, and atheism. there was still a big gap between local parsons and bishops, who were educated, well-off, and related to the aristocracy. on the whole, preachers talked about morality and christian belief. they stressed good works and benevolence. but many protestant clergy were more concerned with their own livings than with their parishioners. they were indolent and did not set a good example of moral living. from , freemasonry spread and swiftly provided a spiritual haven for those who believed in god and desired ritual and mysticism. about , john wesley, the son of an anglican clergyman, became a religious leader for mining and industrial laborers, who were crowded into the slums of industrializing cities, and largely ignored by the church of england. he had been led to this by a profound religious experience. he led an evangelical revival with a promise of individual salvation. he lead an aesthetic life, eating bread, and sleeping on boards. the person to be saved from the horrors of eternal damnation in hell was to discipline himself to regular prayer, self-criticism, and hard work and to forsake worldly pleasures such as drinking, overeating, and even frivolous talk. this methodical regularity of living led to the movement being called methodist. wesley believed in witchcraft and magic. he opined that bodily diseases and insanity could be caused by devils and that some dreams are caused by occult powers of evil. the methodists engaged increasingly in philanthropic activities. they gave to the poor, and visited the sick and the imprisoned. wesley preached in the open air where all who wanted to attend could attend and also wear whatever clothes they had. large crowds of poor people gathered for these meetings. crowds of poor people were generally feared because of their mob potential. these methodist meetings were stormed as were quaker meetings, with shouts of "the church in danger". the methodists' homes were invaded and their belongings destroyed or taken or their persons beaten with tacit permission of authorities. some justices of the peace drafted preachers into the army or navy as vagabonds. eventually, however, the methodist revival imbued energy and piety into the lethargic clergy of the established church. a new moral enthusiasm and philanthropic energy grabbed the nation. prisons were reformed, penal laws made more wise, slave trade abolished, and popular education given momentum. in the established church, charity gained precedence over theology and comfort over self-examination and guilt. evangelist george whitfield preached calvinism and it split off from methodism. then calvinism went into full decline. presbyterianism collapsed into unitarianism and a general tendency towards deism developed. church sanctuary was abolished for those accused of civil offenses. there was much travel by scheduled coaches, which usually carried several passengers and were drawn by four horses. regular service of public vehicles to and from london went four miles an hour; it took two days to go from london to oxford. it was not unusual for a coach to bog down or overturn. sometimes it had to detour around an impassable stretch of road or borrow a couple of oxen from a nearby farm to get out of a quagmire. men and horses drowned in some of the potholes. robbery was endemic and some of the roads were so unsafe from highwaymen that bands of armed horsemen were hired to accompany the coaches. it was not unusual to come across gibbets for hanging at crossroads. in london inns at coach stops, there were casual workers who were associated with gangs of thieves specializing in passengers' goods. these workers would inform their associate thieves of specific goods that had been loaded onto certain coaches, which were then robbed selectively. traveling merchants preferred packhorses to carts because they could cross overland or through watercourses more easily. these pack horses traveled in regular caravans in single file. the leader had a bell around his neck to warn, from a distance, riders or carts coming in the opposite direction. carts traveled about two miles an hour. in the trustee system superseded administration by the justices of the peace of the turnpike system, including tolls and toll booths. the toll booths were frequently attacked by riotous mobs. so anyone pulling down or destroying turnpike gates at which tolls were to be paid went to prison or was put to hard labor in a house of correction for three months without bail. he was also whipped in the market place between : and : . if he offended a second time, he was transported for seven years. later the penalty of prison up to three years was added as an alternative. the hundred had to pay the damages up to pounds. the penalty for threatening the toll collector or forcibly passing through was pounds for the first offense, and pounds for the second offense with imprisonment for one year for those who couldn't pay. by , about miles could be made in a day. the turnpike trusts took over most of london's major highways during the s. there was no travel on sundays until . in , shocked by the difficulty caused by bad roads in concentrating the royal army to stop the scottish invasion, the king began systematically to improve all the roads. there was much road and highway widening and repair, and also river bank and pier repair, going on all over the country. marsh lands were drained. harbors were deepened. there were numerous statutes trying to adjust the needs of travel with the condition of the roads. for instance, there had to be a pole between wheel horses or double shafts. carriages, wagons, or carts drawn by more horses, oxen, or animals, or with very heavy loads, or with wheels bound with iron tires were observed to cause more damage, so they were restricted or had to pay higher tolls. then broad and smooth iron tires were observed to not cause the amount of damage as did narrow or irregular iron tires and their use was encouraged. from , weighing machines were kept at toll gates. by , turnpike roads had to be at least feet wide, and hedges and fences thereon had to be taken down by their owners. cartways to markets had to be at least feet wide, and horseways (later ) feet wide. there were ditches, drains, and gutters to carry off water. names and abodes of owners were to be put on carriages, wagons, and carts or forfeit - pounds, except for carriages or coaches of a nobleman or gentleman for his private use or those drawn by only one horse or two oxen, or those with wide wheels and a light load. there were town name signs, direction posts, and milestones. in , the surveyors and the commissioners of turnpikes were given authority to requisition local men, carts and draught animals for compulsory labor, or money instead, in maintaining the roads and making new ditches and drains. they could take any local sand, gravel, chalk, or stone from waste or common land or, if not needed by and satisfaction was made to the owner, from enclosed land. the surveyor was to be chosen locally for a year and could be given an allowance. new roads required the consent of the landowners and a negotiated price. a driver of a carriage, wagon, or cart on the public highway who by negligence or misbehavior caused any hurt or damage to a person or any other carriage or hindered free passage of any other carriage was to forfeit up to s. anyone leaving an empty cart or other obstruction on a public highway was to forfeit up to s. any cart, wagon, or carriage driven without a person on foot or on horseback leading it had a forfeiture up to s. any driver of an empty cart, wagon, or carriage who refused or neglected to make way for any coach or loaded cart, wagon, or carriage was to forfeit up to . any offender could be apprehended without warrant by anyone who saw his offense, and who was then to deliver him to a constable or other peace officer. by , the mail service was well-regulated. letter rates within miles of london were d. per piece of paper, then d. per ounce. within miles of new york city in america there were d. per piece of paper, then s. d. per ounce. letters were still carried by post horses. from london to new york, they were s. per piece of paper for the first three pieces, then s. per ounce. in , this rate was extended to all colonial ports. in , canals began to be constructed linking the main rivers. the barges were hauled by horses or men from the land near the river's edge. now goods of many inland towns cheapened and reached a national instead of just a local market. in an almost illiterate man called james brindley cut the first real canal at worsley for the duke of bridgewater, who owned the coal deposits there. he kept the line of the canal at one level to avoid having to make locks. it crossed one river as a forty foot high aqueduct. he refused to use the beds of small rivers, whose sluggish flow gave no adequate security against silting. coal at the destination point of manchester fell to half its former price. after wedgwood headed a campaign to persuade parliament to construct a certain canal, he bought adjacent land on which he built his great factory. in , the maximum interest rate that could be charged was reduced to % for the advancement of trade and improvement of lands because that rate was the norm in foreign lands. thus the maximum interest rate fell from to to and then to %. when issac newton was master of the mint, he noted that too restricted a currency caused a high interest rate to prevail, which was bad for commerce and the plans to set the poor to work, but that too large a quantity of money in circulation caused interest rates to fall, which encouraged luxury imports and the export of bullion. the bank of england provided a safer deposit and lower interest than goldsmiths or scriveners. it also issued notes for and (since ), and pounds. outside retail trade and wages payments, business was conducted on a credit basis with a paper promise to pay at some future date. check use was still formal and rare. tradesmen typically authorized their apprentices to "write off or draw" from their accounts, bringing their bank books. depositors authorized other people such as certain servants, relatives, cashiers, or company secretaries to make use of their accounts. after , the bank dividend was about % a year. promissory notes were assignable and endorsable and the holder could recover against the signer or any endorser as was the case with bills of exchange. in , no more promissory or other notes, bills of exchange, draughts, or undertakings in writing and being negotiable or transferable could be made for under s., because it was hard for the poorer sort of manufacturer, artificer, laborer and others to use them without being subject to great extortion and abuse. cash was to be used instead. by , government finances had become so chaotic that the chancellor of the exchequer sought to re-establish public credit by means of a chartered commercial company, the shares of which were offered in substitution for government stock. this south sea company was established in with a monopoly to trade in south america. the prospects of huge profits sent the share prices soaring. there was also an increase in the money supply. these factors led to a speculation bubble in in this stock. also, many stock-jobbers promoted companies of every description, such as one to extract gold from seawater. there was an insurance boom with about seventy insurance companies in existence, many virtually gambling in life contingencies. there was speculation in insurance for all types of occurrences, such as housebreaking, highway robbery, death by gin-drinking, and horses becoming disabled. the total capital invested in all these enterprises rose to over five times the cash resources of all europe. when the bubble burst, pound south sea stock had gone up to pounds and back down again to . since the government had in effect bought this stock at a low price and paid off its debt with this stock at a high price, this bubble relieved the government of much of its massive debt. it also redistributed wealth. after the bubble burst, investors took refuge in investing in - % government fixed-interest securities. a result of this bubble burst was the chartering of two corporations for marine insurance and prohibition of such by any partnership or firm. private persons could continue to write policies, and they chose lloyd's coffeehouse as their headquarters; it came to dominate the world of marine insurance after the two chartered companies came to concentrate on fire and life insurance. lloyd's list became the foundation for a new newspaper. there were specialty boxes at lloyd's such as on america or the baltic. many ships were reported captured by enemies or pirates, but underwriting insurance was a lucrative business for many. in the gold guinea was assigned a value of s. in , the gold standard was introduced. in , clipped and deficient gold coin was called in to be exchanged for new coin. local taxes were collected for the church, the poor, county courts of justice, borough administration, and highways. national taxes included the income, customs, and excise taxes. when the government tried to levy excise taxes on wine, tobacco, and then on cider, there was a public protest with mobs demonstrating against the power given to excise inspectors to search in people's homes. these excise taxes were no longer levied. duties were placed on items for encouraging industries within the country and to pay the expenses of government. there were more and higher duties to pay for war. at various times there were duties on hides, skins, seal skins, gilt and silver wire, malt, mum [strong beer made from malted wheat], cider, perry, spices, tea, coffee, cocoa nuts, chocolate, cocoa paste, snuff, chinaware, drugs, calicoes, herrings, apples, oysters, raw italian and chinese silk, gum arabic, gum senega, tallow, hogs-lard, grease, beaver skins and wool, imported brandy, raisins, coals and coal dust, coaches for one's own use or for hire, except licensed hackney coaches; silver plate owned by persons, corporations, and bodies politic; leases, bonds, and other deeds; licenses for retailing wine, beer, and ale; % of salaries, fees, and perquisites from office and employments including royal pensions and gratuities over pounds. when the price of wheat was high, as in , when it was s. per bushel, wheat products could not be exported. at other times, they could not be imported. duties on imported wheat, barley, rye, oats, beans, rice, indian corn were also dropped. the prohibition of importing salted beef, pork, bacon, and butter was dropped. in , no live cattle, pigs, mutton, pork, beef, either fresh or salted could be exported or forfeit pounds for every such animal or s. per pound of such meat. in , peas, beans, bacon, hams, and cheese could be imported duty free, and in labrador codfish. in , raw goat skins could be imported duty-free to improve the domestic manufacture of red, green, and blue leather. in , there were given costs above which various commodities could not be exported: wheat at s. per quarter, rye, peas, or beans at s., barley and beer at s., oats at s. or else forfeit the goods, s. per bushel and the ship or boat in which laden. (there are bushes in a quarter.) a window tax replaced the hearth tax. these duties were s. on dwelling houses, increased by d. per window for houses with - windows, and increased by d. per window for houses with - windows, and increased by s. per window for houses with or more windows, per year to be paid by the occupant. these were increased three more times, until the dwelling house duty was s. and the duty for or more windows was s. another duty for war was that on imported starch, certain imported clothes, cards, dice, soap, vellum, parchment, and paper made in the realm ( d.- s. d. per ream depending on quality) or imported ( - s. per ream). for pamphlets and newspapers made in the realm there was a duty of d. per sheet and d. for every advertisement. when the duty was paid, the paper was stamped. the penalty for nonpayment was pounds for sellers and pounds for those writing or printing on the paper. later, there was a penalty of imprisonment in a house of correction up to three months for sellers or hawkers of pamphlets or newspapers, and the apprehender received a reward of s. a parson marrying a couple without publishing banns or license could forfeit pounds. not paying duties was punishable by various forfeitures of money. officers for duties could search warehouses on suspicion of concealment of coffee, tea, chocolate, or cocoa beans with an intent to avoid duties after making an oath before a duty commissioner or justice of the peace setting forth the grounds of such suspicion. a special warrant could be issued authorizing the officer to seize such goods. wars were funded not only by some duties, but by lotteries and short-term funding purchased at % yearly interest from the bank of england and by long-term funding by the sale of annuities. county militias could be raised and called out to march together in order to be better prepared to suppress insurrections or invasions. their horsemen were to be provided with broad sword, a case of pistols with inch barrels, a carabine with belt and bucket, a saddle, and a bit and bridle. each foot soldier was to be provided with a bayonet, a cartouch-box, and a sword. in the militia act of , there were quotas for each parish, to be chosen by lot from lists of men - years old. after militia service for three years, one could not be called again until by rotation, and, if married, he was allowed to practice any trade in which he was able in any town or place. while he was in the militia, his parish had to pay an allowance to his family, if distressed, the usual price of an agricultural laborer, according to the number and ages of the children. quakers could provide a substitute or pay money to defray expenses of a substitute for three years. exempt were peers, commissioned officers in royal army or royal castle, other military personnel, members of either university, clergymen, teachers of any separate congregation, constables and peace officers, and watermen of the thames river. this militia act was due to an invasion scare in because great britain then had no allies on the continent. the old strategy of maintaining a small army of , men and relying on volunteers had really depended on england's allies to tie down france's land forces. the militia act of was designed to reassure squires they would not be used as adjuncts to the army. only those with much property could be officers. enlistees could still carry on their trades and jobs. costs were to be from general taxation rather than by locality. but it was almost impossible to get officers and there were many riots when parish authorities tried to draw up lists of those liable to serve. in the navy prevented french invasion. able-bodied men without a calling, employment, or visible means of maintenance or livelihood could be searched for and conscripted into the army. volunteers who enlisted were paid s. and were not taken out of her majesty's service by any process other than for some criminal matter. king george ii was the last king to lead his troops into battle. later, parishes were given s. for every soldier they summoned. also, persons who had a vote for member of parliament were exempted. whipping was the usual punishment for offenses. a soldier who deserted or joined in any mutiny or sedition in the royal army within the realm was to suffer death or any other punishment determined by court martial. in , a soldier (later, or a marine) who slept at his post, left his post before being relieved, communicated with any rebel or enemy, struck or disobeyed any superior officer could suffer death, including those soldiers in america. during war, chief officers of towns quartered and billeted royal army officers and soldiers in inns, livery stables, alehouses, and victualing houses for d. a day, but not in any private house without consent of the owner. from to , the army regiments were split up and scattered among the ale-houses of small towns for maintenance; this was to disperse the soldiers. it was easier to count them, thereby keeping a check on their number, which might be exaggerated if they were in large groups in barracks. the towns protested having to maintain soldiers and town magistrates imposed severe penalties for small offenses by soldiers. their drunkenness and violence were not tolerated as they were for ordinary people. their officers not being with them, the soldiers retaliated with troublesomeness. as of english troops could be quartered in unoccupied houses or barns and supplied with necessities such as bedding, firewood, candles, vinegar, salt, cooking utensils, and beer or cider. the royal hospital gave pensions to maimed and worn out soldiers treated there. sailors had more status than soldiers because they had regular work as seamen in times of peace and they did not remind the people of the idea of a standing army, which they had hated especially since cromwell. justices of the peace, mayors, and other officers could bind boys as apprentices to sea service if they were at least ten and their parents were chargeable to the parish or begged for alms. this indenture to the masters or owners of ships lasted until the boy reached . the boy's parish paid s. for clothing and bedding for such sea service. no such apprentice could be impressed into the navy until at least years of age. master and owners of ships that carried - tuns had to take one such apprentice and one more boy for the next tuns, and one more boy for every tuns over tuns, or else forfeit pounds to the boy's parish. boys voluntarily binding themselves to such sea service were exempt from impressment for the next three years. this was to increase the number of able and experience mariners and seamen for the navy and for the trade and commerce of the nation. no masters or commanders of merchant ships were to proceed on a voyage beyond the seas without first agreeing in writing on wages with the seamen, except for apprentices. such agreement had to be signed by the seamen. offenders were to forfeit pounds per seaman, which sum went to the use of greenwich hospital. any seaman leaving the ship before being discharged in writing was to forfeit one month's pay because too many left the ship before it was unladen. there were some ships of tons. the steering wheel had been introduced because a sudden heavy sea could wrest a tiller from the hands of a helmsman. triangular head-sails with jib boom and stay-sails on stays between masts were in use so that ships could sail closer into the wind. the length of ships was still determined by the same length of trees that could be grown. sailing ships were still vulnerable to a lee shore. latitude was easy to determine using the reflecting octant invented by john hadley in , and a sextant invented in , with mirrors and a small telescope to measure the angle between a celestial body such as the sun or north star and the horizon. but longitude could not be determined with any degree of accuracy. one method relied on accurate predictions of the future position of the moon as observed from a fixed reference point, such as greenwich. by precisely observing the local time of the moon's occultation of a known star at a particular place, and looking up in a table the predicted time of the event at greenwich, one could approximate the time difference of the place from greenwich. there were so many shipwrecks on this account that the government offered a reward to anyone who found a way to measure longitude accurately. in carpenter and clockmaker john harrison made the chronometer to do this with an accuracy of / seconds per month, and received , pounds. he was promised , pounds to explain the principle of his timekeeper and build three more. the chronometer kept time with extreme accuracy and was mounted to remove the effect of the ship's motion. to find a ship's position, a navigator noted the time and measured the positions of certain stars. he compared these positions with tables that showed the stars' positions at greenwich mean time, and then calculated the ship's position. officer positions were no longer bought, but were subject to examination for a minimum of knowledge, especially in navigation. in the naval academy was established. boys entered at age to and spent two or three years there. only about % of the crew of navy ships were volunteers. many were gaolbirds, having chosen the navy over more gaol time for debt. press gangs seized men in the port towns and from ships coming into harbor. from % to % of the crew were foreigners, many of these pressed men. about , the marine society was founded for training and placing poor boys in work in naval and merchant ships. this not only supplied men and boys for the navy, but saved boys from a life of vagrancy and crime. these boys usually became reliable and obedient sailors. the life of a sailor was a hard one, requiring much strength. sailors did not know how to swim, so falling overboard usually meant death. flogging was the usual punishment in the navy, even for small offenses. the amount of flogging due for each offense rose over time. if flogging were fatal, there would be an inquiry and occasionally punishment. a sailor's meals were usually hard bread invested with weevils and maggots, dried or salted meat or fish, and small quantities of oatmeal, butter, and cheese. many sailors had scurvy or other deficiency diseases. experiments with lime and lemon juice as remedies for scurvy were made around , but were not used in the navy until about . many more sailors died from these diseases than from battle. rum and water was a daily ration introduced in . the ordinary sailor was paid about one pound a month, a rate established in s which became outdated. this was not in cash, but in a ticket which entitled him to payment in full if he presented it at the pay office in london, but was subject to swinging deductions if he tried to cash it in another port. prize money from conquered ships was substantial. to encourage seamen to enter the navy, parliament provided that the prizes be divided among flag officers, commanders, other officers, seamen, marines, and soldiers on board every ship of war, including private ships commissioned by the admiral, as directed by the king, or as agreed with the owner of a private ship. it included an enemy's ships, and goods and arms on the ships or in fortresses on the land. there was also bounty money for enemy ships taken or destroyed. for retaking or salvaging english goods taken by the enemy, / th their value was paid. privateers colluding with others to fraudulently take their merchant ships forfeited their ships, with / rd going to the person who made the discovery and prosecuted. later, any able seaman volunteering for the navy was to receive pounds bounty. any seaman volunteering for the navy was to receive a bounty of pounds. if a navy seaman was killed or drowned, his widow was to receive a year's pay as bounty. no seaman in a merchant ship was to receive more than s. per month because of war at that time. still later, anyone who ran goods or avoided customs was excused and indemnified if he enlisted in the navy as a common sailor for three years. those under or over were made exempt from impressment into the king's service. the time of service was limited to five years if the serviceman so demanded. worn out and decrepit seamen no longer being treated at the royal hospital for seamen at greenwich received a pension as determined by the hospital. in war, the navy favored blockading tactics over attack by fireships, which grew obsolete. in peace, when not used in convoys to remote lands, many ships of war were used as cruisers to guard the coast, to trade, and to accompany merchant ships going out and returning home. about , marine forces of the navy were raised and quartered on shore. no war ship could carry goods except gold, silver, and jewels and except the goods of a ship in danger of shipwreck or already shipwrecked. the king was authorized to prohibit the export of gunpowder, saltpeter, ammunition, and arms. when a ship had been forced on shore or stranded on the coast, it had been the practice for people to plunder it and to demand high payment for salvaging its goods. so a statute required that salvage only be done by sheriff, mayors, and other officials. a person who defaced the marks on goods or hindered the saving of the ship had to pay double satisfaction to the person aggrieved and spend months at hard labor in a house of correction. if a person unduly carried off goods, he forfeited treble damages. if he made a hole in the ship or stole the pump from the ship, he was guilty of felony without benefit of clergy. the owner of the island of skerries was allowed to erect a lighthouse and charge passing ships other than navy ships d. per tun. only pilots examined and admitted into the society of pilots and, if no such pilot was readily available, a ship's own owner, master, or mate could pilot ships up the thames river, or else forfeit pounds for the first offense, pounds for the second, and pounds thereafter. any pilot losing a ship could no longer be a pilot. there had to be at least qualified pilots. the prices of piloting were pounds s. for ships drawing feet of water, and s. more for each additional foot drawn up to pounds s. for ships drawing feet of water. to preserve navigation, ships were not to throw any ballast, filth, rubbish, gravel, earth, stone, or filth into rivers or ports where the tide or water flowed or ran or else forfeit s.- pounds. ships on the thames river could take as ballast to stabilize a ship without cargo: dung, compost, earth, or soil from laystalls in london. there was a toll on ships entering the port of london to pay for repairs to its walls. many persons insuring ships for large premiums became bankrupt, thus ruining or impoverishing many merchants and traders. so the king was authorized to grant charters to two distinct corporations for the insurance of ships, goods, and merchandise or going to sea or for lending money upon bottomry [borrowing money and and pledging the ship as security]. each corporation had to pay , pounds to the exchequer and to have sufficient ready money to pay for losses insured by them. they were to raise capital stock and could make calls of money from their members in proportion to their stocks for any further money required. any owner, master, or mariner who cast away, burned, or otherwise destroyed a ship to the prejudice of underwriters of policies of insurance or of any merchants whose goods have been loaded on the ship was to suffer death. the owners of ships were not liable for losses by reason of theft without their knowledge by the master or mariners of goods beyond the value of the ship. this was to prevent the discouragement of owning ships. the insurance of merchant ships must give salvage rights [rights to take what may be left of the ships insured after paying the insurance on them] to the insurer. a lender on bottomry had benefit of salvage. no insurance could be for a greater amount than the value of one's interest in the ship or in the goods on board. no waterman carrying passengers or goods for hire e.g. by wherryboat, tiltboat, or rowbarge, on the thames river could take an apprentice unless he was a housekeeper or had some known place of abode where he could keep such apprentice or else forfeit ten pounds, and if he couldn't pay, do hard labor at the house of correction for - days. also he could not keep the apprentice bound to him. no apprentice could be entrusted with a vessel until he was if a waterman's son and if was he the son of a landman, and he had at least two years' experience. none but freemen, i.e. one having served an apprenticeship of seven years, could row or work any vessel for hire or be subject to the same punishment. this was to avoid the mischiefs which happen by entrusting apprentices too weak, unable, and unskillful in the work, with the care of goods and lives of passengers. later amendment required that apprentices be age to and that there be no more than passengers, with the penalty of transportation if there were over and one drowned. no boat on the thames river could be used for selling liquors, tobacco, fruit, or gingerbread to seamen and laborers because such had led to theft of ropes, cables, goods, and stores from the ships. excepted were boats registered at the guilds of trinity and of st. clement, but they had to show their owner's name and could only operate in daylight hours. the penalty was forfeiture of the boat. all ships coming from places infected with the plague had to be quarantined and any person leaving a quarantined ship had to return and later forfeit pounds, of which / could go to the informer, the rest to the poor. this was later raised to pounds and six months in prison, and if the person escaped, he was to suffer death. also later, a master of a ship coming from infected places or having infected people on board was guilty of felony and forfeited pounds. if he did not take his vessel to the quarantine area on notice, he forfeited a further pounds (later pounds) and the ship, which could then be burned. the king was authorized to prohibit commerce for one year with any country infected by the plague and to forbid any persons of the realm from going to an infected place. by , there was a clear distinction between a king's private income and the crown's public revenue. from , the king's treasurer as a matter of routine submitted annual budgets to parliament. he was usually also the leader of the house of commons and the chancellor of the exchequer. proclamations by the crown were more restricted to colonial and foreign affairs, to executive orders, and to instructions to officials. the high offices included the chancellor, treasurer, keeper, president of the council, privy seal, and two secretaries of state, who were in charge of all foreign and domestic matters other than taxation, one for the north and one for the south. with thomas more, the chancellor had become more of a judge and less of a statesman. other offices were: paymaster general, secretary of war, and treasurer of the navy. starting with the monarch, government positions were given by patronage to friends and relatives, or if none, to the highest bidder. these offices were usually milked for fees and employed deputies, clerks, and scribes who worked for long hours at very modest wages. most people believed that the offices of power and influence in the realm belonged to the nobility and gentry as indubitably as the throne belonged to the king. assaulting, wounding, striking, or trying to kill a member of the privy council engaged in his duties was punishable by death without benefit of clergy. civil and military commissions, patents, grants of any office or employment, including justice of assize, justice of the peace, court writs, court proceedings continued in force for six months after a king's death, unless superceded in the meantime. the king's ministers were those members of his privy council who carried out the work of government. by distributing patronage, the ministers acquired the influence to become leading members of the house of commons or the house of lords. they made policy, secured the king's consent, and then put through the necessary legislation. the king was to act only through his ministers and all public business was to be formally done in privy council with all its decisions signed by its members. the king gradually lost power. the last royal veto of a parliamentary bill was in . by , the privy council ceased making decisions of policy. instead a cabinet not identified with any particular party was chosen by the queen, who presided over their meetings, which were held every sunday. it dealt with parliament. in , the number of peers in the house of lords was fixed, so that the crown could create no more. about , robert walpole, son of a country squire, who came to be first minister of the crown and the leader of the whigs, organized the cabinet so that it was of one view. he led it for twenty years and thus became the first prime minister. a prime minister was needed because the king spoke no english. walpole was brilliant at finance and lessened taxation. he restored trust in the government after the south sea bubble scandal. he was successful in preserving the peace with other nations and providing stability in england that led to prosperity. the whigs opposed a standing army and over-reaching influence of the crown. they espoused the liberty of individual subjects. their slogan was "liberty and property". they generally favored foreign wars. members of the parliament felt responsible for the good of the whole country instead of accounting to their electors, but self- interest also played a part. leading commercial magnates of the realm sought to be members of parliament or governors of the bank of england so they could take up government loans at advantageous rates, snap up contracts to supply government departments at exorbitant prices, and play an important part in deciding what duties should be charged on what goods. about % of the population could vote. voting was open, rather than by secret ballot. seats in parliament could normally be bought either by coming to an arrangement with some landowner who had the right to nominate to a closed seat or by buying enough votes in constituencies where the electorate was larger and the contest more open. factory owners and leading landowners sat together on committees drawing up plans for public works such as canal building, obtained the necessary permits from public authorities and organized the whole enterprise. in , parliament was allowed to last for seven years unless sooner dissolved by the king because of the expense and tumult of elections, which frequently occasioned riots, and sometimes battles in which men were killed and prisoners taken on both sides. politics had become a career. members of parliament could not be arrested while parliament was in session. as of , electees to the commons had to have pounds annual income for knights or pounds annually for burgesses. this did not include the eldest son or heir apparent of any peer or lord of parliament or any person with the above qualifications. the universities were exempted. as of , a person electing a member of the commons had to swear or affirm that he had not received any money, office, employment, or reward or promise of such for his vote. if he swore falsely, it was perjury and he was to forfeit pounds and his right to vote. later, voters for member of parliament had to have residence for a year. still later, voters were required to have been freemen of the city or town for one year or else forfeit pounds, except if entitled to freedom by birth, marriage, or servitude according to the custom of such city or town. voters were still required to have a freehold of land of s. a year income, but holders of estates by copy of court roll were specifically precluded from voting or else forfeit pounds. in , since unauthorized persons had intruded into assemblies of citizens of london and presumed to vote therein, the presiding officer -appointed clerks to take the poll and oath required for elections for parliament, mayor, sheriffs, chamberlains, bridgemasters, and auditors of chamberlains. the oath was that one was a freeman of london, a liveryman of a certain named company, had been so for months, and had named his place of abode. the oath for alderman or common council elections was that the voter was a freeman of london and a householder in a named ward who had paid scot of at least a total of s. and bore lot. a list of the voters and of persons disallowed was given to candidates by the presiding officer. soldiers could not be quartered within miles of a place of election so that the election was kept free. voters in public corporations must have held their stock for six months before voting them to discourage splitting stock and making temporary conveyances thereof to give certain people more of a vote, e.g. in declaring dividends and choosing directors. ambassadors were made immune from arrest, prosecution and imprisonment to preserve their rights and privileges and protection by the queen and the law of nations. the supporters of the bill of rights society was founded and paid agents to give speeches throughout the country and used the press for its goals. james burgh demanded universal suffrage in his book: "political disquisitions". in there was union with scotland, in which their parliaments were combined into one. the country was known as great britain. the last scottish rebellion resulted in attainder of its leaders for levying war against the king. in , they were given the chance to surrender by a certain date, and receive a pardon on condition of transportation. in , anyone impeached by the commons of high treason whereby there could be corruption of the blood or for misprison of such treason could make his defense by up to two counsel learned in the law, who were assigned for that purpose on the application of the person impeached. in , counsel could interrogate witnesses in such cases where testimony of witnesses were not reduced to writing. there was a steady flow of emigrants to the american colonies, including transported convicts and indentured servants. delaware became a colony in . in , the king bought carolina from its seven proprietors for , pounds apiece. person having estates, rights, titles, or interest there, except officers, were allowed by parliament to sue the king with the court establishing the value to be paid, but no more than at a rate of , pounds per / of the property. georgia was chartered in on request of james oglethorpe, who became its first governor, as a refuge for debtors and the poor and needy. it established the episcopal church by law. in carolina and georgia were allowed to sell rice directly to certain lands instead of to england only. later, sugar was allowed to be carried directly from america to european ports in english ships without first touching some english port. foreigners who had lived in the american colonies for seven years, and later foreigners who served two years in the royal army in america as soldiers or as engineers, were allowed to become citizens of great britain on taking oaths of loyalty and protestantism. this included quakers and jews. the jews could omit the phrase "upon the true faith of a christian." in , indentured servants in america were allowed to volunteer as soldiers in the british army serving in america. if his proprietor objected, the servant was to be restored to him or reasonable compensation given in proportion to the original purchase price of his service and the time of his service remaining. there was much competition among countries for colonies. quebec and then montreal in in canada were captured from the french. about james cook discovered new zealand and australia; his maps greatly helped future voyages. the english east india company took over india as its mogul empire broke up. manufacturing in the american colonies that would compete with british industry was suppressed by great britain. there were increasing duties on goods imported into the colonies and restrictions on exports. in , parliament imposed duties on foreign imports going to america via britain: to wit, sugar, indigo, coffee, certain wines, wrought silks, calicoes, and cambrick linen. foreign vessels at anchor or hovering on colonial coasts and not departing within hours were made liable to be forfeited with their goods. uncustomed goods into or prohibited goods into or out of the colonies seized by customs officials on the ship or on land and any boats and cattle used to transport them occasioned a forfeiture of treble value, of which / went to the king, / went to the colonial governor, and / went to the suer. any officer making a collusive seizure or other fraud was to forfeit pounds and his office. in , there was imposed a duty on papers in the colonies to defray expenses of their defense by the british military. the duty on every skin, piece of vellum [calf skin] or parchment, and sheet of paper used in any law court was d.- pounds. there were also duties on counselor or solicitor appointments of pounds per sheet. duties extended to licenses for retailing spirituous liquors and wines, bonds for payment of money, warrants for surveying or setting out of any lands, grants and deeds of land, appointments to certain civil public offices, indentures, leases, conveyances, bills of sale, grants and certificates under public seal, insurance policies, mortgages, passports, pamphlets, newspapers (about s. per sheet), advertisements in papers ( s. each), cards, and dice. the papers taxed were to carry a stamp showing that the duties on them had been paid. parliament thought the tax to be fair because it fell on the colonies in proportion to their wealth. but the colonists saw this tax as improper because it was a departure from the nature of past duties in that it was an "internal tax". all of the original thirteen american colonies had adopted magna carta principles directly or indirectly into their law. the stamp duties seemed to the colonists to violate these principles of liberty. patrick henry asserted that only virginia could impose taxes in virginia. schoolmaster and lawyer john adams in massachusetts asserted that no freeman should be subject to any tax to which he had not assented. in theory, colonists had the same rights as englishmen per their charters, but in fact, they were not represented in parliament and englishmen in parliament made the laws which affected the colonists. they could not be members of the house of lords because they did not have property in england. there were demonstrations and intimidation of stamp agents by the sons of liberty. merchants agreed to buy no more goods from england. the stamp duty was repealed the same year it had been enacted because it had been "attended with many inconveniences and may be productive of consequences greatly detrimental to the commercial interests of these kingdoms". to counter the wide-scale running of goods to avoid the customs tax, the customs office was reorganized in to have commissions resident in the colonies and courts of admiralty established there to expedite cases of smuggling. this angered the colonists, especially boston. boston smuggling had become a common and respectable business. it was the port of entry for molasses from the west indies from which new england rum was made and exported. the entire molasses trade that was essential to the new england economy had been built upon massive customs evasions; royal customs officials had participated in this by taking only token customs for the sake of appearance in london and thereby had become rich. in parliament imposed a duty of d. per pound weight on tea and duties on reams of paper, glass, and lead into the colonies. these import duties were presented as external rather than internal taxes to counter the rationale the colonies gave against the stamp tax. but these items were of common use and their duties raised the cost of living. the king's customs officials were authorized to enter any house, warehouse, shop, or cellar to search for and seize prohibited or uncustomed goods by a general writ of assistance. these writs of assistance had been authorized before and had angered bostonians because they had been issued without probable cause. in paxton's case of , the massachusetts superior court had declared legal the issuance of general writs of assistance to customs officers to search any house for specific goods for which customs had not been paid. the authority for this was based on the parliamentary statutes of and authorizing warrants to be given to any person to enter, with the assistance of a public official any house where contraband goods were suspected to be concealed, to search for and seize those goods, using force if necessary. they were called "writs of assistance" because the bearer could command the assistance of a local public official in making entry and seizure. a "general" writ of assistance differed from a "special" writ of assistance in that the latter was issued on a one-time basis. the general writ of assistance in boston was good for six months after the death of the issuing sovereign. authority relied on for such writs was a statute giving customs officers in the colonies the same powers as those in england, a act by the massachusetts provincial legislature giving the superior court of massachusetts the same such power as that of the exchequer, and the massachusetts' governor's direction about to the massachusetts superior court of judicature to perform the function of issuing such warrants. the massachusetts court issued them in the nature of the writs of assistance issued from the exchequer court in england, but had issued them routinely instead of requiring the showing of probable cause based on sworn information that the exchequer court required. few judges in the other american colonies granted the writ. seditious libel trials in england and the colonies were followed closely and their defendants broadly supported. john wilkes, a member of the house of commons, published a criticism of a new minister in . he called king george's speech on a treaty "the most abandoned instance of ministerial effrontery ever attempted to be imposed on mankind". after being found guilty of seditious libel, he again ran for the house of commons, and was repeatedly elected and expelled. he was subsequently elected alderman, sheriff, and mayor of london. in , alexander macdougall was voted guilty of seditious libel by the new york colonial assembly for authoring a handbill which denounced a collusive agreement by which the assembly voted to furnish supplies for the british troops in new york in exchange for the royal governor's signature to a paper-money bill. when he was arrested, the sons of liberty rallied to his support, demanding freedom of the press. benjamin franklin's brother had been imprisoned for a month by the massachusetts assembly for printing in his newspaper criticisms of the assembly. he was forbidden to print the paper. benjamin supported him by publishing extracts from other papers, such as "without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty without freedom of speech... whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech; a thing terrible to public traitors." by statute of , the new york house of representatives was prohibited from meeting or voting until they provisioned the king's troops as required by law. in , harvard college seated its students in class in alphabetical order instead of by social rank according to birth. by , the colonies' boycott of british goods in protest of the new duties cause these imports to decline so much that british merchants protested. so the duties were dropped, except for that on tea, which was retained as a matter of principle to assert the power of the crown to tax the colonies. then in the east india company was allowed to sell tea directly to the colonies to help it avoid bankruptcy. the effect of this was to lower the cost of tea in the colonies by avoiding the english middleman, and the american middleman, but also to give the east india company a monopoly. the colonies felt threatened by this power of britain to give monopolies to traders. when the tea ships arrived in boston in late , bostonians held a town meeting and decided not to let the tea be landed. they threw this cargo of tea, worth about , pounds, overboard. this boston tea party was a direct challenge to british authority. in response, parliament closed the port of boston until compensation was made to the east india company. by statute of , no one was to enter or exit the port of boston or else forfeit goods, arms, stores, and boats that carried goods to ships. every involved wharf keeper was to forfeit treble the value of the goods and any boats, horses, cattle, or carriages used. ships hovering nearby were to depart within six hours of an order by a navy ship or customs officer or be forfeited with all goods aboard, except for ships carrying fuel or victuals brought coastwise for necessary use and sustenance of inhabitants after search by customs officers, and with a customs official and armed men for his defense on board. this statute was passed because of dangerous commotions and insurrections in boston to the subversion of the king's government and destruction of the public peace in which valuable cargoes of tea were destroyed. later, the governor was given the right to send colonists or magistrates charged with murder or other capital offenses, such as might be alleged to occur in the suppression of riots or enforcement of the revenue laws, to england or another colony for trial when he opined that an impartial trial could not be had in massachusetts bay. a later statute that year altered the charter of massachusetts bay province so that the choice of its council was transferred from the people to the king to serve at his pleasure, and the appointment and removal of judges and appointment of sheriffs was transferred to the governor to be made without the consent of the council. this was due to the open resistance to the execution of the laws in boston. further, no meeting of freeholders or inhabitants of townships was to be held without consent of the governor after expressing the special business of such meeting because there had been too many meetings that had passed dangerous and unwarranted resolutions. also, jurors were to be selected by sheriffs rather than elected by freeholders and inhabitants. the commander of the british troops in north america was made governor of massachuseetts. king george thought that the colonists must be reduced to absolute obedience, even if ruthless force was necessary. the people of massachusetts were incensed. they were all familiar with the rights of magna carta since mandatory education taught them all to read and write. mandatory education every township of fifty households had to appoint one person to teach all children to read and write. every one hundred families had to set up a grammar school.) the example in massachusetts showed other colonies what england was prepared to do to them. also disliked was the policy of restricting settlement west of the allegheny mountains; the take over of indian affairs by royal appointees; the maintenance of a standing army of about , men which was to be quartered, supplied, and transported by the colonists; and expanded restrictions on colonial paper currencies. the virginia house of burgesses set aside the effective date of the port bill as a day of prayer and fasting, and for this was dissolved by its governor. whereupon its members called a convention of delegates from the colonies to consider the "united interests of america". this congress met and decided to actively resist british policy. as opposition to british rule spread in the colonies, a statute was passed stating that because of the combinations and disorders in massachusetts, new hampshire, and connecticut, and rhode island to the destruction of commerce and violation of laws, these inhabitants should not enjoy the same privileges and benefits of trade as obedient subjects and that therefore no goods or wares were to be brought from there to any other colony, and exports to and imports from great britain were restricted, on pain of forfeiting the goods and the ship on which they were laden. there vessels were restricted from fishing off newfoundland. these conditions were to be in force until the governors were convinced that peace and obedience to laws was restored. later in , these trade restrictions were extended to new jersey, pennsylvania, maryland, virginia, and south carolina. in , since all the thirteen colonies had assembled an armed force and attacked british forces, these trade restrictions were extended to delaware, new york, georgia, and north carolina and expanded to prohibit all trade during the present rebellion to prevent assistance to them. war had started; the new rifle was used instead of the musket. by statute of , anyone harboring of army or marine deserters in the colonies forfeited pounds anyone persuading a soldier or marine to desert drew a forfeiture of pounds or else up to six months in prison without bail and one hour in the pillory on market day. bounties were made available to vessels from and fitted out in great britain for newfoundland fishing. any shipmaster carrying as passengers any fisherman, sailor, or artificer to america forfeited pounds because such men had been seduced from british fishing vessels in newfoundland, to the detriment of the fishing industry. the many years of significant achievements of the colonists, such as taming the wilderness and building cities, had given them confidence in their ability to govern themselves. the average colonial family had a better standard of living than the average family in england. many of its top citizenry had reached their positions by hard work applied to opportunities for upward mobility. with the confidence of success, the american colonies in declared their independence from britain, relying on the principles stated by john locke and jean jacques rousseau that man was naturally free and all men equal, and that society was only created with their consent. issac's newtons's unified laws of the universe had contributed to this idea of a natural law of rights of men. thomas jefferson wrote a declaration of independence which listed the colonies' grievances against the crown which reiterated many of the provisions of the petition of right and bill of rights, specifically dispensing with and suspending laws, maintaining a standing army and quartering troops without legislative consent, imposing arbitrary taxation, encouraging illegal prosecutions in strange courts, and corrupting the jury process. it was adopted about july , . thereafter, the american colonies did not follow english law. past english law became the legal heritage of the united states of america. the law anyone who feloniously steals or aids in the stealing of goods, wares, or merchandise over s. from a shop, warehouse, coach house, or stable, by night or by day, whether the owner is present or not, whether there is a break in or not, may not have benefit of clergy. anyone stealing goods of s. worth from a ship on any river or in any port or creek or from any wharf may not have benefit of clergy. anyone receiving or buying goods they know to be stolen or who harbors or conceals any burglars, felons, or thieves knowing them to be such shall be taken as accessory to the felony and shall suffer death as punishment if the principal felon is convicted. a person taking money or reward for helping any other person to stolen goods or chattels is guilty of felony unless he brings the thief to trial. as of , any person convicted of grand or petty larceny or any felonious stealing or taking of money, goods, or chattels, either from the person or from the house of any person who is entitled to benefit of clergy and who is liable only to whipping or burning in the hand may instead be transported to the american colonies to the use of any person who will pay for his transportation for seven years. any person convicted of an offense punishable by death and without benefit of clergy and buyers and receivers of stolen goods may be given mercy by the king on condition of transportation to any part of america to the use of any person who will pay for his transportation, for fourteen years or other term agreed upon. returning before the expiration of the term is punishable by death. anyone assaulting another with an offensive weapon with a design to rob may be transported for seven years. any person armed with swords, firearms, or other offensive weapons and having their faces blackened or otherwise being disguised, who appears in any forest, park, or grounds enclosed by a wall or fence wherein deer are kept (including the king's deer) or in any warren or place where hares or conies are kept or in any high road, open heath, common, or down, or who unlawfully hunts, wounds, kills, or steals any deer or steals any hare or rabbit or steals any fish out of any river or pond or who unlawfully and maliciously breaks down the head or mound of any fish pond, causing the loss of fish, or who unlawfully and maliciously kills, maims, or wounds any cattle, or who cuts down any trees planted in any avenue or growing in any garden or orchard for ornament, shelter, or profit, or who sets fire to any house, barn or out house [outer building], hovel, or stack of grain, straw, hay or wood, or who willfully and maliciously shoots any person in any dwelling house or other place, or who sends any letter with no signature or a fictitious signature, demanding money, venison, or other valuable thing, or who forcibly rescues any person lawfully in custody for any of these offenses, or who procures others by gift or promise of money or other reward to join with him in any such unlawful act is guilty of felony and shall suffer death without benefit of clergy. persons abetting them are also guilty of felony and shall suffer death without benefit of clergy. attainder shall not work corruption of the blood, loss of dower, or forfeiture of lands, goods, or chattel. the persons sustaining damages can recover pounds or less from the hundred, with inhabitants paying proportionately, unless one of the offenders is convicted within six months. if other hundreds have not diligently followed the hue and cry, they shall pay half such damages. in , it was required that there be notice to the constable or other officer or tythingman and public notice in the london gazette describing the robbery, offenders, and goods taken before the hundred had to pay damages. also, it did not have to pay damages if one offender was apprehended with days of publication in the london gazette, but did have to pay the apprehender pounds. in was also included letters threatening killing people or burning houses, barns or stacks of grain, hay, or straw, without any demand. also, persons who rescued such offenders from gaol were given the same penalty. later, persons obtaining money or goods by false pretenses with an intent to defraud or cheat or sending a letter without a true signature threatening to accuse any person of a crime with an intent to extort money or goods, are punishable by fine and prison, pillory, or whipping or transportation for seven years. later, no person may recover more than pounds after a hue and cry unless there are at least two witnesses to the robbery. no one may advertise a reward for return of things stolen or lost with no questions asked, because this has resulted in thefts and robberies. anyone stealing sheep or cattle or parts thereof is a felon and shall suffer death without benefit of clergy. persons who steal or aid in stealing any lead, iron bar, iron gate, palisade, or iron rail fixed to any house or its outhouses, garden, orchard, or courtyard is guilty of felony and may be transported for seven years. in also included was copper, brass, bell-metal, and solder; buyers and receivers; and mills, warehouses, workshops, wharves, ships, barges, and other vessels. search warrants were authorized in case of suspicion. officers and solicited buyers and receivers were required to take persons who at night were reasonably suspected of having or carrying such items, to an accounting before a justice of the peace. also a notice was put in the newspaper for any owners to claim such. if the person did not give a satisfactory account of the items, he was guilty of a misdemeanor punishable by forfeiture of pounds or prison up to one month for the first offense, pounds or prison for two months for the second offense, and pounds or prison for any subsequent offense (without bail). an officer or solicited buyer or receiver who did not take a suspect to a justice of the peace was punishable by the same penalties except the amounts of forfeiture were pound, pounds, and pounds respectively. a felon who brought two buyers or receivers to justice was to be pardoned. a description of any goods and the appearance of a rogue or vagabond or idle and disorderly person shall be advertised in a public paper for identification by the owner as stolen. pawning goods without consent of the owner is punishable by forfeiture of s. or hard labor for fourteen days with whipping there. maliciously destroying river banks resulting in lands being overflowed or damaged is a felony for which one shall suffer death without benefit of clergy. later, transportation for seven years was made an alternative. the punishment for forgery or counterfeiting or assisting in such or claiming a counterfeit item is good while knowing that it is not, with an intent to defraud is death without benefit of clergy. the punishment for perjury or subordination of perjury is hard labor in the house of correction for up to seven years or transportation for up to seven years. the punishment for altering numbers on bills of exchange or other payment papers is death. it is high treason to counterfeit the coinage. a person who tenders coin, knowing it to be false, shall spend six months in prison and acquire sureties for good behavior for the next six months. if he offends again, he shall spend two years in prison and acquire sureties for good behavior for the next two years. the third offense is felony without benefit of clergy. in , making or possessing any frame, mould, or instrument for forging paper notes of the bank of england and putting this identification thereon is felony with penalty of death without benefit of clergy. anyone who forges promissory notes, bills of exchange, or inland bills of the bank of england by engraving or etching on metal or wood "bank of england" or "bank post bill" shall go to gaol for up to six months. anyone selling gold or silver ware, vessel, plate or other item large enough to be marked which has not been marked by its maker shall forfeit pounds or be kept at hard labor up to six months. anyone counterfeiting such mark shall forfeit pounds. later, vendors of these items were required to be licensed and the penalty for counterfeiting was raised to felony for which one shall suffer death without benefit of clergy. later still, transportation for fourteen years was allowed as an alternative. if an item was not all silver, e.g. had metal underneath, pounds was to be forfeited. in , receivers of stolen jewels and gold and silver plate and watches knowing them to be stolen, in cases of burglary and highway robbery, were subject to transportation for years. anyone who willfully and maliciously set on fire any mine or pit of coal is guilty of felony and shall suffer death without benefit of clergy. anyone who willfully and maliciously floods a coal work, mine pit or who makes underground cavities or passages with intent to destroy or damage such, or obstructs any sough or sewer made for draining such, which has been held in common for years, shall forfeit treble damages. this is to deter these offenses, which have been done to enhance the price of coals and gain a monopoly thereof. if twelve or more people who riotously and tumultuously assemble and disturb the peace, do not disburse within an hour of an order to disburse by a justice or sheriff or mayor, they shall be deemed felons without benefit of clergy. any people pulling down or destroying a church, dwelling house, barn, stable, or other out house; any mill; any engine used for draining water from any coal, lead, tin, or copper mines, or for drawing coals from mines; or bridge, wagon, or fences used in such industry will be deemed felons without benefit of clergy and may be transported for seven years. the cost of repair is to be borne by the hundred or town. the earlier statute that substituted burning in the cheek for burning in the hand is repealed because this not only did not deter offenders, but on the contrary, made them unfit for honest livelihoods and therefore more desperate. those convicted of theft or larceny shall be burnt in the hand and may be kept at hard labor in a house of correction for - months, without bail. anyone stealing goods off shipwrecks, or putting out a false light to bring a ship to danger, or beating or wounding with an intent to kill or otherwise obstructing a person escaping from the ship to save his life shall suffer death without benefit of clergy. except that goods of small value taken without violence shall be punished as petty larceny. the houses of suspect people may be searched by warrant. if there are goods found or if people are found offering goods to sell, they may be ordered by a justice to give an account of these goods. if the account is not satisfactory, the punishment is forfeiture of treble their value or six months in prison. a reasonable reward may be given to the discoverer. anyone assaulting a magistrate or officer involved in salvage work shall be transported for seven years. armed persons up to three in number assembled to assist in illegal exporting or running, landing, or carrying away prohibited or uncustomed goods, and any person apprehended by any revenue officer, and anyone with his face blackened or masked who obstructs, assaults, opposes, or resists any revenue officer seizing such goods, or who shoots at or maims or wounds any revenue officer attempting to go on any ship shall suffer death as felons without benefit of clergy or serve as commons sailors in the navy for at least one year. harborers of such offenders will be transported for seven years. the hundreds shall pay pounds for each revenue officer killed, and up to pounds for each one beaten, wounded, or maimed, and damages up to pounds for goods, unless an offender is caught and convicted in six months. there is a reward of pounds to an apprehender, and pounds for an attempt to apprehend in which one loses a limb or eye or is maimed or wounded, and pounds to his family if he is killed. an offender who brings two of his accomplices to justice will be acquitted and rewarded pounds for each such accomplice. later, an incentive was given to customs officers to have a portion of the proceeds of the sale of such goods seized by them, such as / for wrought silks and calicoes, and / for tea, coffee, foreign brandy, and rum. still later, any person could seize wrought silk, including ribbons, laces, and girdles containing it, from the importer or retailer, and the importer was to forfeit pounds, and any import assistants pounds, and retailers or concealers pounds, with one half going to the suer. also, the goods were to be publicly burnt. still later, the penalty was increased to forfeiture of pounds for all offenders, but not including wearers, and the goods were to be publicly sold for export rather than burnt. then the import of silk stockings, silk mitts, and silk gloves was prohibited for the support of the english silk industry. retailers, sellers, and concealers of such were to forfeit the goods and pounds. search warrants could be issued. in , importers, sellers, and manufacturing users of most foreign wrought silks or velvets were to forfeit the goods and pounds. the goods were sold for export with the proceeds going / to the king, and / to the seizing officer. the wearer was not liable. the burden of proof of the place of manufacture was on the person prosecuted rather than on the prosecutor. persons breaking into houses or shops to destroy any wool or silk being made or tools or racks used shall suffer death as felons, to prevent combinations of workmen. in , bounties were made available to american exporters of raw silk to great britain, whose climate was not conducive to the growing of mulberry trees on which silk worms feed. in , cotton printed, stained, or dyed that has been manufactured in great britain may be worn and used, but must have a mark woven in the warp that it was manufactured in great britain. persons importing other such cloth shall forfeit it and ten pounds per piece. persons selling such with a counterfeit stamp with an intent to defraud shall suffer death without benefit of clergy. the protective measures for english silk manufacture did not work well. any pirate, accessory to piracy, commander or master or other person of any ship or vessel who trades with a pirate or furnishes him with ammunition or provisions of fits out a ship to trade with pirates shall suffer death and loss of lands, goods, and chattels. seamen maimed in fighting pirates may be admitted into greenwich hospital. (this hospital received support from duties paid by vessels of the realm and of the colonies.) masters or seamen not fighting shall forfeit their wages and spend months in prison if the ship is taken. masters shall not advance to any seamen above half his wages since deserting is the chief occasion of their turning into pirates. in london penalties for crimes against property rose so that by , a child could be hanged for stealing a handkerchief worth s. from a person's body. trade and the economy boomed in time of war, buttressed by the increased production in the coal, iron, steel, shipbuilding, and cloth industries. but peace brought depression and much misery, including the imprisonment of many debtors. when very many were imprisoned, statutes allowed release on certain conditions. after assets were paid to creditors in proportion to the amounts owed to them, debtors could be discharged from prison if they owed no party more than pounds (later no restriction and still later, pounds, and even later, pounds, and in , pounds, and in , pounds) and take an oath that they have less than pounds ( in ) worth of property (including s. in money in ), because there were so many debtors in prison who were impoverished by war losses and other misfortunes in trades and professions, and were totally disabled from paying their creditors, and they and their families either starved or became a burden to their parishes and became an occasion of pestilence and other contagious diseases. exempted were those debtors for whom there was an objection by one of their creditors who paid for the maintenance of that debtor in prison. prisoners discharged were also discharged from chamber [cell] rent and gaolers' fees, but not from their debts to creditors. during war, no male prisoner could be discharged unless he enlisted in the royal army or navy until the end of the war. in , the discoverer of any asset of a debtor not listed by that debtor was to receive a reward of pounds per hundred, and anyone concealing an asset of a debtor was to forfeit pounds as well as double the value of the asset. a person declared bankrupt shall subsequently be examined from time to time as to their goods, money, or other effects or estate to prevent the frauds frequently committed by bankrupts. a default or willful omission shall be deemed felony without benefit of clergy. a bankrupt or other person concealing goods to the value of at least pounds or his books with intent to defraud is a felony without benefit of clergy. a debtor refusing to come to court for examination or hiding assets of more than pounds is guilty of felony and his goods and estate shall be divided among his creditors. later, a bankrupt coming to an examination was allowed to keep (or / or ) pounds per , up to a maximum of (or or , respectively) pounds if he paid his creditors s. (or s. d. or s. respectively) per pound. his future estate was still liable to creditors, excepting tools of trade, necessary household goods, bedding, furniture, and wearing apparel of the family up to pounds, if it could pay every creditor s. per pound. if he didn't pay this, he could be imprisoned. bankrupts excepted from the benefits of this act are those who lost pounds in any one day or pounds in the preceding year from gambling or wagers. no goods or chattels on lands or tenements which are leased for life or lives or term of years or at will or otherwise "shall be liable to be taken by virtue of any execution on any pretence whatsoever unless the party at whose suit the said execution is sued out shall before the removal of such goods from off the said premises by virtue of such execution or extent pay to the landlord" all money due as rent. if the lessee fraudulently or clandestinely conveys or carries off his goods or chattels with intent to deprive the landlord or lessor from distraining the same for arrears of such rent, the lessor or landlord may, within five days, seize such goods and chattels as a distress for the arrears of rent and may sell them as if actually distrained on the premises. every person under and every woman-covert who is entitled by descent or will to be admitted tenants of any copyhold lands or hereditaments may be ordered to appear by a guardian or attorney to be compelled to be so admitted and to pay such fines as are owing by the lands. if one is so admitted, but does not pay, the lord may enter the lands and receive its rents, but not sell timber, until the fine and costs are satisfied, after which the land is to be given back and may not be forfeited to the lord. tenants holding over any lands after their term expired and after demand for possession was made shall pay double the yearly value of such to the landlord. the landlord may reenter and eject a tenant if rent is in arrears for / year. landlords may distrain within days and sell goods and chattels fraudulently or clandestinely carried off the premises by renters in arrears of rent. this applies to goods sold to others privy to the fraud. they may use force if necessary to break open houses upon giving a justice of the peace reasonable grounds to suspect and to break open other buildings in the presence of a constable. the renter is to forfeit double the value of such. the landlord may distrain the renter's cattle on any common or any growing grain, roots, or fruit. attornments of renters made to strangers who claim title and turn the landlord out of possession are void. chief leases may be renewed without surrendering all the under leases. this is to prevent subtenants from delaying the renewal of the principal lease by refusing to surrender their leases, notwithstanding that they have covenanted to do so. but the rents and duties of the new subleases may not exceed those of their former leases. any person claiming a remainder, reversion, or expectancy in any estate upon a person's death, who has cause to believe that that person is dead and that the death is being concealed by the person's guardian, trustee, husband, or other person, may request yearly an order in chancery for the production of such tenant for life. upon refusal, the tenant for life shall be deemed dead. as of , all devices, legacies, and bequests made by will in great britain or the colonies had to be in writing and witnessed by three witnesses, or would be held void. no witness was to receive anything by the will that he witnessed. an accessory before or after the fact of felony may be prosecuted and tried not only if the principal accused felon has been convicted, but even if he stood mute or peremptorily challenged over persons to serve on the jury. the accessories shall be punished the same as if the principal had been attainted. buyers and receivers of stolen goods may be prosecuted and punished if they knew the goods to be stolen, even if the principal felon has not been convicted. the punishment will be as for misdemeanor by fine and imprisonment. this is to deter the counselors and contrivers of theft and other felonies and the receivers of stolen goods from taking advantage of the former rule that an accessory could not be convicted or punished unless the principal had first been attainted. and if any captain or mariner or other officer belonging to any ship willfully casts away, burns, or otherwise destroys that ship to the prejudice of its owners or merchants loading goods onto the ship, he shall suffer death as a felon. journeymen shoemakers or employees of such who sell or pawn boots, shoes, slippers, cut leather or other materials for making such goods which are not his proper goods, or exchange for worse good leather which has been entrusted to them, shall for the first offense, recompense the injured person, or if his goods are insufficient for distress, may be whipped. for the second offense, he shall be sent to hard labor in a house of correction for - days. a person who buys or receives or takes in pawn such goods shall suffer the same penalties. justices of the peace may issue warrants to search houses and buildings in the daytime if there is "just cause to suspect" such goods therein based upon information given to him under oath. anyone employed in the working up of woolen, linen, fustian, cotton, or iron manufacture who embezzles or purloins any materials for their work shall forfeit double the value of the damages done and anyone convicted thereof may be put into the house of correction until he pays, or if he can't pay, to be publicly whipped and kept at hard labor for no more than days. persons convicted of buying or receiving such materials shall suffer like penalties and forfeitures as one convicted of embezzling or purloining such materials. laborers employed in such manufacture must be paid in coin and not in cloth, victuals, or commodities in lieu thereof. leatherworkers were added with a penalty of up to double the value. later this statute was amended to include a penalty for the second offense of forfeiture of four times the value, or else hard labor at a house of correction for - months and whipping once or more in the market town. like penalties were given for buyers of such material knowing it to be false. one who neglected finishing and delivering such goods because he was leaving this employment was to be sent to the house of correction for up to one month. the penalty for possessing or offering to sell any hare, pheasant, partridge, moor or heath game or grouse by any carrier, innkeeper, victualer, or alehouse keeper is pounds, / to the informer, and / to the poor of the parish. if unable to pay, the offender shall be placed in the house of correction for three months without bail. unauthorized persons keeping or using greyhounds, setting dogs, or any engine to kill game shall suffer the same penalties. in , anyone killing hare at night or using any gun, dog, or other engine to take or kill or destroy any hare, pheasant, partridge, moor game, heath game, or grouse in the night shall be whipped and also go to gaol or the house of correction for - months without bail for the first offense, and for - months without bail for any further offense. if such occurs on a sunday, the offender must forfeit - pounds or go to gaol for - months. in , no one may kill or take or possess any heath fowl or any grouse except at a limited period during the year. each manor may have only one gamekeeper allowed to kill game such as hare, pheasant, partridge and only for his household's use. this gamekeeper must be either qualified by law or a servant of the land's lord. other persons possessing game or keeping a greyhound or setting dogs or guns or other devices to kill game must forfeit them and five pounds. anyone killing or attempting to kill by shooting any house dove or pigeon shall forfeit s. or do hard labor for one to three months. excepted are owners of dove cotes or pigeon houses erected for the preservation and breeding of such. a gamekeeper or other officer of a forest or park who kills a deer without consent of the owner must forfeit pounds per deer, to be taken by distress if necessary, and if he can't pay, he is to be imprisoned for three years without bail and set in the pillory for two hours on some market day. a later penalty was transportation for seven years. anyone pulling down walls of any forest or park where deer are kept, without the consent of the owner, must forfeit pounds and if he can't pay, he is to be imprisoned for one year without bail and spend one hour in the pillory on market day. later, the killing of deer in open fields or forests was given the same penalties instead of only the monetary penalty prescribed by former law (former chapter). the penalty for a second offense was given as transportation for seven years. anyone beating or wounding a gamekeeper with an intent to kill any deer in an open or closed place was to be transported for seven years. anyone who apprehends and prosecutes a person guilty of burglary or felonious breaking and entering any house in the day time shall be rewarded pounds in addition to being discharged from parish and ward offices. justices of the peace may authorize constables and other peace officers to enter any house to search for stolen venison. any person apprehending an offender or causing such to be convicted who is killed or wounded so as to lose an eye or the use of a limb shall receive pounds. any person buying suspect venison or skin of deer shall produce the seller or be punished the same as a deer killer: pounds or, if he couldn't pay, one year in prison without bail and one hour in the pillory on market day. an offender who discloses his accomplices and their occupations and places of abode and discovers where they may be found and they are subsequently convicted, shall be pardoned. all persons pretending to be patent gatherers or collectors for prison gaols or hospitals and all fencers, bearwards, common players of interludes, minstrels, jugglers, and pretended gypsies, and those dressing like egyptians or pretending to have skill in physiognomy, palm-reading, or like crafty science, or pretending to tell fortunes, and beggars, and all persons able in body who run away and leave their wives or children to the parish shall be deemed rogues and vagabonds. apprehenders of such persons bringing them before a justice of the peace may be rewarded s. any constable not apprehending such shall forfeit s. persons wandering outside the place determined by a justice of the peace to be his settlement may be whipped on the back until it is bloody or sent to hard labor at a house of correction. if he was dangerous and incorrigible, for instance as indicated by swearing falsely before a justice of the peace, he could suffer both punishments with the whipping being on three market days. if he escaped from the house of correction, it was felony. if he has been absent for more than two years, he could be put out as an apprentice for seven years in the realm, in the colonies, or in a british factory beyond the seas. included later were performers for gain from outside their parish of any play, tragedy, comedy, opera, farce or other entertainment of the stage, including performances in public places where wine, ale, beer, or other liquors are sold, or else forfeit pounds. exempted were performances authorized by the king in westminster. unlicensed places of entertainment are deemed disorderly (like bawdy houses and gaming houses) because they increase idleness, which produces mischief and inconvenience. persons therein may be seized by a constable. persons keeping such a place shall forfeit pounds. no licensed place of entertainment may be opened until : p.m. later there was an award of s. for apprehending a person leaving his wife and children to the parish, living idly, refusing to work at going rates, or going from door or placing themselves in the streets to beg. this includes begging by persons who pretend to be soldiers, mariners, seafaring men, or harvest workers. these rogues and vagabonds shall be sent to hard labor at a house of correction for up to one month. the real soldiers, mariners, seafaring men, and harvest workers shall carry official documents indicating their route and limiting the time of such passage. persons pretending to be lame who beg are to be removed. if he comes back to beg, his back may be whipped until bloody. if a constable neglects this duty, he shall forfeit s. masters of ships bringing in vagabonds or beggars from ireland or the colonies shall forfeit five pounds for each one. this money shall be used for reconveying such people back at a price determined by a justice of the peace. a master of a ship refusing to take such a person shall forfeit five pounds. these vagabonds and beggars may be whipped. anyone who profanely curses or swears shall suffer the following penalties: day laborer, common soldier, common sailor, common seaman - s., anyone else below the degree of gentleman - s., gentlemen and above - s., and for the second offense, a double fine, for further offense, a treble fine. if a person can't pay, he shall be put to hard labor at a house of correction for ten days, or if a common soldier, common sailor, or common seaman, he shall be set in the stocks for - hours. this is to prevent the provocation of divine vengeance. anyone setting up or maintaining lotteries or deceitful games must forfeit pounds, or go to prison up to months. any one who plays at such, such as by drawing lots or using cards or dice, must forfeit pounds. sales of lottery items, such as houses, lands, plate, jewels, or ships, are void and these items will be forfeited to any person who sues. such have caused many families to become impoverished, especially through their children or through the servants of gentlemen, traders, and merchants. backgammon games are exempt. later, people who lost up to ten pounds in deceitful gaming were allowed to sue to recover this money from the winners. also, anyone winning or losing ten pounds at one time or twenty pounds within hours shall be fined five times the value of such. offenders discovering others, who are convicted, are indemnified from all penalties and shall be admitted to give evidence. no one may run more than one horse, mare, or gelding in a horse race. no prize may be under pounds value. this is because a great number of horse races for small prizes have contributed to idleness, to the impoverishment of the meaner sort of people, and has prejudiced the breed of strong and useful horses. wagers and agreements in the nature of puts and refusals relating to prices of stocks or securities are void. those making or executing such agreements must forfeit pounds. those selling stock which one does not possess must forfeit pounds. brokers negotiating such agreements must forfeit pounds. only a person with an interest in the life or death of another may have insurance on this other, to prevent the mischievous kind of gaming that has been introduced. apples and pears may not be sold by any measure other than a standard water measure, or else forfeit s., one-half to the informer, and one-half to the poor, except for measures sealed by the company of fruiterers. this is to decrease the suits between buyers and sellers. there shall be enough silver and gold on silver and gold plated silk thread and wire so that it does not crumble off, thereby wasting the bullion of the nation. this is also to encourage its export by making it competitive in trade with such foreign articles, which may not be imported. malt to be sold or exported must not be fraudulently mixed with unmalted grain to lower duties payable or else forfeit s. any one who adulterates coffee with water, grease, butter, and such shall forfeit pounds, / to the king, and / to the suer. walnut tree leaves, hop leaves, sycamore leaves and such may not be made to imitate tobacco leaves for sale or else forfeit s. per pound. persons near london may not make unsound, hollow, or improperly heated bricks. makers of narrow woolen cloths must weave or set in the head of every piece his initials or else forfeit one pound. this is to prevent frauds and abuses, particularly in stretching and straining the cloth. the fulling mill owner must append his seal of lead with his name and with his measurements. the searcher to be appointed must measure such cloths when wet for conformity to standard measurements and append his seal with his measurements. he may also inspect any places he chooses. in , any wool-making employee not returning all working tools and implements and wool and all materials with which entrusted back to his employer, or who fraudulently steams, damps, or waters such wool, or who takes off any mark on any piece of cloth, shall go to the house of correction for one month. if he absconds with or sells such or anyone fraudulently buys or receives such from him, a search warrant may be issued to seize any other such tools or material. if found, the possessor may be brought to account before a justice of the peace, and if his account is not satisfactory, he shall forfeit such. a search warrant may also be issued for houses on "just cause to suspect" by oath of a credible witness. for a second offense, the penalty is up to three months in a house of correction. for a third offense, the penalty is up to six months in a house of correction and public whipping. bakers must mark their bread with w for white, wh for wheaten, and h for household or else forfeit s. to the informer. in , a new assize of bread set prices for rye, barley, oats, and beans by the bushel. the prices for the three qualities of wheat, for wheaten (prized and unprized), and for household grain by the bushel were to be determined from within a statutory range by the local mayor or justice of the peace. mayors and justices of the peace were to determine a fair profit for their local bakers for all the types of bread. a miller, mealman, or baker adulterating bread was to forfeit s. pounds, part of which money could be used in publishing his name, abode, and offense in the local newspaper. later, there was a forfeiture of - s. for every ounce underweight. household bread was to be / cheaper than wheaten or forfeit - s. bread inferior to wheaten was not to be sold at a price higher than household or else forfeit up to s. if the forfeiture was not paid, it could be levied by distress, or otherwise the offender was to spend one month in gaol or a house of correction. straw to be sold in london must be sound, firmly bound in a truss, and of a given weight or else forfeit it and s. if no truss, and s. if in truss but underweight or of mixed quality. handlers must keep registers of sellers, buyers, weights, dates of sale, and prices or else forfeit - s. frame-work knitted pieces and stockings shall be marked with the correct number of threads by the master, frame-work knitter, or master hosier, or forfeit the goods and pounds. if a journeyman apprentice, or servant employ does not mark correctly, he shall forfeit the goods and s.- s. sellers of such shall forfeit the goods and pounds per piece. at every fishing season, the quantity of salt, foreign or domestic, used by a proprietor for curing fish for export shall be accounted and sworn to so that it can be compared with the quantity of fish exported by the proprietor to ensure that the salt duties are fully paid, or else forfeit pounds. if such salt is sold for other uses than curing fish, the proprietor is to forfeit s. per bushel sold and the users thereof, to forfeit s. per bushel bought, delivered, or used. if one can't pay, he is to be whipped and put to hard labor in a house of correction for up to three months. agreements between coal owners, lightermen, fitters, master or owners of ships, hindering the free sale, loading, and unloading, navigating, or disposing of coals are illegal, null, and void. this is engrossing and has caused the price of coals to go up. no coal trader or dealer may use his own lighters, barges, or other vessels to carry coals on the thames river to and from any ship and to and from any wharf, dock, or creek because this has impaired the business of the watermen and wherrymen, whose vessels must now be registered and display such mark on their hulls. no lightermen nor buyers of coals may act as agent for any master or owner of a ship importing coals into london or else forfeit pounds, because this combination has caused the price of coal to go up. selling one sort of coal for another is punishable by forfeiture of pounds. only standard size coal sacks may be used for selling coal and they must be sealed and stamped by an official at the guildhouse before sale. the mayor and aldermen of london may set the price of coals coming into this port. in other areas, justices of the peace set the prices of coals which allowed "a competent profit". if a merchant refused to sell at that price, the justice of the peace could authorize seizure and sale by officers. later, coal measurers must give the coal cart driver a ticket with the name of the sellers and consumers, the quantity and quality of the coal, its price, the date of sale, and the name of the cart driver or else forfeit pounds. the cart driver must give this ticket to the consumer or forfeit pounds. if coal is carried by cart without a ticket, the seller forfeits pounds and the driver pounds. any owner of timber trees, fruit trees, and other trees used for shelter, ornament, or profit, which are cut down or otherwise destroyed shall be made good by his parish or town, as is an owner of hedges and dikes overthrown by persons in the night. in , anyone cutting down or destroying any oak or other timber trees at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone digging up or destroying or carrying away any root, shrub, or plant worth up to s. in a garden, nursery, or other enclosed ground at night shall forfeit up to pounds for the first offense, up to pounds for the second offense, and shall be transported to the colonies for seven years for any further offense. anyone not paying is to be gaoled. aiders and buyers who know the item was stolen shall incur the same penalties. later, many other types of trees, such as beach, ash, elm, cedar, and walnut were included as timber trees, and hollies, thorns, and quicksets included as plants. any person using violence to hinder the purchase or transportation of grain, e.g. by beating or wounding a buyer; beating or wounding the driver or horse of a cart loaded with wheat, flour, meal, malt, or other grain, or cutting the harness of or driving away the horse, or cutting or carrying away the sacks of grain is to be put in the common gaol or house of correction with hard labor for - months, and whipped in the market place between : and : . the penalty for a second offense or for destroying a storehouse or granary where grain is kept to be exported or for taking or spoiling such grain, or for throwing such off a ship or vessel is transportation for seven years. the hundreds concerned are to pay damages up to a total of pounds, but only if notice is given to the constable within two days and there is an oath and examination before a justice of the peace within ten days of the owner or his servants. if any offender is convicted within a year, the hundreds are released. anyone who steals at night any cloth or wool or woolen goods set out to dry on racks shall forfeit treble damages, or if he can't pay, be sent to prison for three months without bail. for the second offense, he shall forfeit treble damages and be sent to prison for six months without bail. for the third offense, he shall be transported for seven years. upon complaint, a justice of the peace may authorize a constable or other peace officer to enter and search houses, outhouses, yards, and gardens of a person suspected by the owner. this person shall account to the justice of the peace and may bring a witness to his purchase of the items. if the account is unsatisfactory, he shall be penalized. anyone taking linens, fustians, or cottons set out for whitening, bleaching, or printing up to the value of s. in lands, grounds, or buildings may be transported for seven years. later, this penalty was increased to death without benefit of clergy or transportation for fourteen years. anyone stealing or maliciously pulling up or destroying any turnips on a person's land must pay damages or go to gaol for up to one month. he may be whipped. the penalty for a second offense is three months in a house of correction. this statute of was, in , extended to include potatoes, cabbages, parsnips, peas, and carrots. a penalty up to s. was added. evidence of the owner was to be taken. in , anyone who steals a dog or receives such knowing it to be stolen shall forfeit - pounds for the first offense, and - pounds for the second offense or go to gaol or the house of correction for - months and be publicly whipped there. search warrants may be issued to search for stolen dogs or their skins. one-half of the forfeiture will go to the informer. officers of the revenue who collude with importers to return to them goods which have been seized for nonpayment of duties shall forfeit pounds and lose office, unless they disclose their accomplices within two months. the importer shall forfeit treble the value of such goods. any ship not more than tons hovering on the coast with customable or prohibited goods may be boarded by a customs officer, who may demand bond for treble the value of the goods. in , persons contracting with artificers and manufacturers of wool, iron, steel, brass, and other metals, clockmakers, or watchmakers, to go to a foreign country and there receive greater wages and advantages shall forfeit pounds and spend months in prison for the first offense, and shall forfeit a sum determined by the court and spend months in prison for the second offense. an artificer or manufacturer not returning after warning is given by the ambassador is to forfeit hereditaments, goods, and lands and to be deemed an alien. later, in , cotton and silk were included and the penalty was increased to pounds and months in gaol for the first offense, and pounds and years in prison for the second offense. also, anyone exporting tools of wool or silk manufacture was to forfeit the tools and pounds. this statute was strictly enforced. in , tools of cotton and linen manufacture were included. in , all statutes against engrossing, forestalling, and regrating were repealed because they had prevented free trade and tended to increase prices, e.g. of grain, meal, flour, cattle, and other victuals. anyone assisting a felon (except for petty larceny) to try to escape from gaol, is guilty of felony and shall be transported for seven years. anyone assisting a person who owes or is to pay pounds to try to escape from gaol is guilty of a misdemeanor. in , prison keepers were indemnified from creditors for any escapes of debtors due to conspiracy and break out with weapons and firearms rather than due to negligence of the prison keeper, as had been occurring. no more than pounds of gunpowder may be kept in any building in london or westminster or suburbs thereof. later, no more than pounds of gunpowder were allowed to be kept therein for more than hours. buildings may be searched on "reasonable cause" shown to a justice of the peace. later, no more than pounds of gunpowder could be kept for more than hours near any town, or more than pounds for more than hours in any place. then no gunpowder could be conveyed by land over barrels or by water over barrels. it was customary for officers to take the oaths of allegiance and supremacy to any new monarch. when george i became king in , all civil and military officers, clergy, schoolmasters, and lawyers, solicitors, clerks, etc. living within miles of london had to take an oath of allegiance and a new oath that the person was not papist and agreed that no foreigners had jurisdiction in the realm, such as to excommunicate someone and thus declaring he could be legitimately killed. soon after, it was required that papists had to register their names and real estates. commissioners were appointed to make inquiries. if a person did not take the oaths or did not register, he was to forfeit / of his land to the king and / to a protestant who sued for such. this was in order to deter future rebellions against the king and efforts to destroy the protestant religion. as late as , there was a papist conspiracy to take the tower of london and the king, and make a catholic king. this resulted in the imprisonment of the conspirators and a new statute: persons not taking the oath of allegiance and above oath that they were not papist shall register their lands and yearly rents and pay double the land tax and , pounds. after payment, they are discharged from forfeiting / of their lands' rents for one year. papists enlisting in the army are liable to corporal punishment, but not death, as determined by a court martial. any mayor, bailiff, or other magistrate who is present at any meeting for public worship other than the church of england will lose office and is barred from any public office or employment. jews may not refuse suitable maintenance to their children who are christian to pressure them to convert back to judaism. black slaves were common for a time in london. this was a result of the voluminous triangle trade of manufactured goods from england, slaves from west africa, and sugar and tobacco from the west indies. slavery was largely abolished by judicial decision of chief justice mansfield in . if a sheriff does not answer for money collected for the exchequer, he shall forfeit treble damages to the aggrieved person, double the sum missing to the aggrieved person, pounds to the king, and pounds to the party who sues. if a sheriff take a fee for levying or collecting money due to the king (except d. for an acquittance) or take a sum for not levying money due, he is guilty of extortion, injustice, and oppression and shall forfeit treble damages and costs to the aggrieved person, and double the sum extorted to the aggrieved person. a sheriff may not levy more than d. for every s. of yearly income of any manor for up to pounds of income, and d. for value over pounds. no one may cut pine trees that are fit for masts of ship in new england without license by the queen or else forfeit pounds. later, pine trees on private property were exempted. citizens of great britain may sue colonial debtors by oath before british magistrates and a debtor's colonial lands and houses and negroes may be used to satisfy his debts. anyone pretending to act under a charter and taking subscriptions in great britain or the colonies must forfeit treble damages. no hats, including beaver hats, may be exported from any colony even to another colony because this has hurt british hat manufacture. the penalty is pounds. no one in the colonies except present hatmakers who are householders and journeymen may make hats unless they serve a seven year apprenticeship. no hatmaker in the colonies may have more than two apprentices at once. whaling ships near greenland were prohibited from returning until their hulls were full. vessels built or fitted out in america may engage in whaling. pig iron from the colonies may be imported free, but there may be no mill for slitting or rolling iron and no plateing-forge or other engine to work with a tilt hammer and no furnace for making steel erected or used in the colonies or else forfeit pounds. no paper bills of credit may be used in new england because such have depreciated. william blackstone lectured on law at oxford university in . as a result, the first professorship of english law was established. his lectures were published in as the "commentaries on the laws of england". they greatly influenced the american colonists and were the basis of legal education in england and america for years. they were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law. he wrote "the great charter and charter of the forest" in . judicial procedure there were twelve common law justices of the court of the king's bench, court of common pleas, and court of the exchequer. the chief justices of all of these courts were paid partly from fees paid to the court. the other justices of these courts were paid completely by salary, which in was well over pounds per year. these justices were to continue in office even after a king died and could be removed only for good cause upon the address of both houses of parliament. the officers of these courts were attorneys. there was one justice at doctors' commons. the two chancery justices (since edward i) were the lord chancellor and the master of the rolls. the salary of the eleven masters of the court of chancery in was pounds per year. the officers of this court were solicitors. appeals from the exchequer could be made to a court of the king's bench and common pleas combined. appeals from common pleas could be made to the king's bench. decisions of the king's bench and other common law courts could be appealed to parliament's house of lords. the common law courts rode circuit twice a year in five circuits and once a year in the north circuit. so an accused person could spend up to a year in gaol waiting for trial. few prisoners were granted bail. in each common law court, the law justices in banc would hear demurrers [contentions that the other party was wrong in the law]. no one with an interest in a suit, including the plaintiff and the defendant, could give evidence. there was no power to amend pleadings, so misspelling of the defendant's name, for instance, could result in dismissal of the suit. in , the pleadings and indictments ceased to be in latin. in the common law courts, trespass in ejectment served the purposes of most of the actions involving land. assumpsit covered the whole province of debt, for which compurgation still existed, and much more. trover more than covered the old province of detinue, for which compurgation still existed. trespass still served for all cases in which the defendant had been guilty of directly applying force to the plaintiff's body, goods or chattels. trespass on the case covered miscellaneous torts. replevin was still used. covenant remained in use for the enforcement of promises under seal. account gradually came under the equity jurisdiction of chancery. common law writs of dower are largely superseded by the relief given to the doweress in the courts of equity, where new and valuable rights were given to her and to her personal representatives against the heir and his representatives. the actions of indebitatus assumpsit is being extended to actions upon quasi-contract, in which the element of contract is not required e.g. quantum meruit, where a contract is implied from the facts of the case. the deodand doctrine is still in force. in chancery, a plaintiff filed a complaint and interrogatories prepared by counsel. only in chancery could there be discovery, such as interrogatories [written questions]. court officials asked the questions of witnesses without the presence of the parties or their lawyers. officials wrote down the answers in their own terms. so there was no cross-examination possible. most decrees took many years to be made. the ordinary administrative court of first instance is that of one or two justices of the peace who issued orders in matters of public safety, public order, public morals, health, the poor, highways, water, fields, forests, fisheries, trade, building, fire, begging, and vagrancy. they examined suspicious persons and issued warrants for the removal of any person likely to become a public charge. the justice of the peace also regulated wages, servants, apprentices, and day laborers. in his judicial capacity, he tried all crimes and felonies except treason, though in practice death penalty cases were transferred to the assize justices. the justices of the peace of a hundred hold special sessions such as for appointment of parochial officers, highway disputes, and the grant of wine, beer, and spirit licenses. the appointment of overseers of the poor, authorization of parish rates, and reading of the riot act to mobs to disperse them, required more than one of the justices of the peace of the hundred to participate. all the justices of the peace of the county met four times a year at quarter sessions to hear appeals from penal sentences, to determine the county rate of tax, to appoint treasurers of the county and governors of the county prison and house of correction, to issue regulations on prices of provisions and on wages, to settle fees of the county officials, to grant licenses for powder-mills and other industries, to hear nuisance complaints such as those against parishes failing to keep their roads in repair, to make regulations for the holding of markets, to hear complaints concerning local government, and to register dissenting chapels. in more and more matters specified by statute, the quarter sessions heard appeals from the orders of individual justices of the peace instead of common law courts hearing them by writ of certiorari. the writ of certiorari allowed administrative decisions to be reviewed by the common law courts for compliance with law, competency of the court, and interpretation of the administrative law. the writ of habeas corpus appealed administrative decisions to imprison not only after arrest for criminal proceedings, but any coercive measure for enforcing an administrative order. the writ of mandamus was available for enforcing the injunctions of administrative law against towns, corporations, and all other authorities and private persons, where the ordinary punishments were insufficient. justices of the peace in rural areas were squires and in towns aldermen. in , justices of the peace were authorized to decide issues between masters and mistresses and their employees who were hired for at least one year. if a servant misbehaved, they could authorize reduction of wage, discharge, and hard labor at a house of correction up to one month. if a servant was not paid, he could authorize payment of wages up to pounds for an agricultural servant, and up to pounds for an artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, or ordinary laborer. later, tinners and miners were added to the last category. in , employees of less than a year were included. in , justices of the peace were authorized to administer any oath for the purpose of levying penalties. to be a justice of the peace, one must have income of pounds a year from a freehold, copyhold, or customary estate that is for life or for a term of at least years, or be entitled to a reversion of lands leased for or or lives, or for any term of years determinable on the death of or or lives. excepted were peers, justices, and heads of colleges or vice chancellors at the universities. the justices of the peace were selected by the superintending sheriffs and lords lieutenant, the latter of whom were usually peer with a ministers' office or a high court official. no attorney or solicitor or proctor could be a justice of the peace unless the locality had justices of the peace by charter. no one may practice as an attorney in the courts of king's bench, common pleas, or exchequer until he has been examined by a judge of such court on his fitness and qualifications and has taken the oath to honestly demean himself and practice according to his best knowledge and ability. the same applies to a solicitor in the equity courts. this shall not exclude persons who have been bound to an attorney or solicitor for four years. attorneys and solicitors, with consent of an attorney of another court, may participate in proceedings of such other court. no attorney may have more than two clerks bound to him at one time. attorneys may be admitted as solicitors and vice-versa. the qualification for jury service is having land with an income over rents of at least pounds, with leases for years or more, or years, or any term determinable on one or more lives. being a freeholder is not necessary. in london, the qualification is being a householder and having lands to the value of pounds. no sheriff may excuse a qualified person from jury service for money or other reward. selection of jurors for each case is to be done by some impartial person pulling their names from a box. later, persons refusing jury service could be fined. in , the homes of john wilkes and others were searched for a seditious and treasonous published paper and all related papers because they had been rumored to have some relationship to the conception, writing, publication, or distribution of the paper. wilkes had such papers and was convicted of libel. he countersued for damages due to criminal trespass. the court held that general search warrants were subversive of the liberty of the subject of the search in violation of the british constitution, declared the statute void, and found for wilkes. the court of common pleas agreed on appeal and put the burden of proof on the persons searching to justify the search warrant. his decision gave support to william pitt's assertion that "every man's home is his castle". for actions under pounds in a superior court and actions under s. in an inferior court, the offender shall be served with process to appear in court rather than being arrested. for money at issue, an affidavit shall be taken. no more money may be taken for bail than the amount at controversy. this is to prevent frivolous and vexatious arrests. perjurers, forgers, those involved in barratry or suborning perjury, and pretenders practicing as attorneys or solicitors in the courts of law or equity shall be transported for seven years to the american colonies. unqualified people acting as attorneys or solicitors in the county court shall forfeit pounds. writs of error at variance from the original record or otherwise defective may be amended to correct the defect by the court where such writ is returnable. no judgment is to be reversed for any defect in any bill or writ, excepting an appeal of felony or murder, or misdemeanor. this is to prevent delays of justice. justices of the peace may correct defects of form on appeals to them. plaintiffs neglecting to go to trial after an issue has been joined may be nonsuited. poor persons may be paid up to d. to give evidence against felons. pirates may not be tried again for the same crime or for a certain crime and high treason. when the marine force was raised, the marines were also given protection from double jeopardy. a request for certiorari for removal of convictions, judgments, orders made by justices of the peace must be made within six months and after notice to the justice of the peace who may argue cause against granting certiorari. mercantile law was developed by the common law courts, especially the king's bench. the king was to appoint the marshal of the king's bench. the marshal was to select his inferior officers to hold office as long as they "behave themselves well within". these offices had been sold by james i to a certain person, his heirs, and assigns. the marshal was to keep the prison of this court in good repair from his fees and profits of office. the office of sheriff was now an accessory department of the common law courts for summons, executions, summoning the jury, and carrying out the sentence of the law. summons for excise offenses may be left at a person's abode, workhouse, or shop as well as on his person. the coroner's office now investigated unusual deaths with a jury from the neighborhood elected by county freeholders. the last beheading was of a scottish lord in ; he had been involved in an attempt to restore the stuarts to the throne. so many people came that some overcrowded bleachers fell down and crushed about spectators. henceforth, every sentence of death was by hanging, even for peers. in , the process of pressing a man to death, if he refused to plead to an indictment was abolished. instead, persons accused or indicted, in great britain or america, of felony or piracy who stand mute shall be convicted of such charge. property of a felon was still forfeited to the crown. from on were established special procedures for speedy decisions in local courts in some areas for debts or damages under s. and imprisonment for such was limited for up to three months. otherwise, sentences were longer, and debts grew during the time in prison. when prisons were overcrowded, parliament let the inmates out if they gave up their possessions. they could go to georgia. there were felons' prisons and debtors' prisons. sometimes they were one and the same. there was much fighting among inmates. the inmates slept on hay if lucky. there were no washing facilities and little light. counties or friends paid for their bread. they were also sold beer, which made them drunk and riotous. the sale of beer was a recognized and legitimate source of profit to the keeper. this was remedied by statute of that no sheriff or other officer may take an arrested person to a tavern or other public house or charge him for any wine, beer, ale, victuals, tobacco or other liquor without his consent and shall allow prisoners to be brought beer, ale, victuals, bedding, and linen as the prisoner sees fit. sheriffs often kept people imprisoned unless and until they paid all their fees due to the sheriff. in was founded the society for the discharge and relief of persons imprisoned for small debts for those inmates unfortunate instead of fraudulent or extravagant. legacies were often made to debtors. there was much gaol distemper fever with fatal consequences. when john howard, a grocer who had inherited wealth, but poor health, became a sheriff, he visited many gaols. when he saw the squalid conditions there, he advocated hygienic practices. in , justices of the peace were authorized to order walls and ceilings of gaols to be scraped and washed, ventilators for supplies of fresh air, a separate room for the sick prisoners, commodious bathing tubs, provision of clothes for prisoners, keeping of prisoners not below the ground, and apothecaries at a stated salary to attend and to report the state of health of prisoners. in , clergymen were employed in gaols to alleviate the distress of prisoners and to contribute to morality and religion. also, no longer may any fees be taken by gaol keepers or sheriffs because persons not indicted or found not guilty have been kept in prison pending payment of such fees. instead, the counties shall pay to gaol keepers up to s. d. per prisoner so discharged. colonials acts which infringed upon the english common or statutory law, or were against the interests of other american colonies were submitted to the privy council, which allowed or disallowed them. appeals from the colonial courts came to the privy council. judges in the colonies were appointed by royal governors and paid by colonial legislatures. they served at the pleasure of the king. colonial courts included superior courts of judicature, courts of assize, general gaol delivery, general sessions of the peace, inferior court of common pleas, and commissions of oyer and terminer. there were also justices of the peace, marshals, provosts, and attorney generals. there were few cases of vagrancy, theft, or homicide. this may have been because the people were few and dependent on each other, and economic opportunities were great. benefit of clergy for certain crimes was available in the american colonies to all who could read and write. for instance, it could be used in trials for manslaughter. appendix: sovereigns of england accession - - name - - - - - - - - - relation - alfred the great - edward the elder - - - - - - - son of alfred - aethelstan - - - - - - - - - - son of edward the elder - edmund - - - - - - - - - - - - son of edward the elder - eadred - - - - - - - - - - - - son of edward the elder - eadwig - - - - - - - - - - - - son of edmund - edgar - - - - - - - - - - - - son of edmund - edward the martyr - - - - - - son of edgar - aethelred the unready - - - - son of edgar - edmund ironside - - - - - - - son of aethelred the unready - canute - harold i harefoot - - - - - - son of canute - hardicanute - - - - - - - - - son of canute - edward the confessor - - - - -son of aethelred the unready - harold ii - william i, the conquerer - william ii - - - - - - - - - -son of william i - henry i (and matilda) - - - - son of william i - stephen - henry ii(and eleanor) - grandson of henry i - richard i, the lion-hearted - son of henry ii - john - - - - - - - - - - - - son of henry ii - henry iii - - - - - - - - - - son of john - edward i (and eleanor) - - - son of henry iii - edward ii - - - - - - - - - - son of edward i - edward iii - - - - - - - - - son of edward ii - richard ii - - - - - - - - - grandson of edward iii - henry iv - henry v - - - - - - - - - - - son of henry iv - henry vi - - - - - - - - - - son of henry v - edward iv - edward v - - - - - - - - - - son of edward iv - richard iii - henry vii (and elizabeth) - henry viii - - - - - - - - - son of henry vii - edward vi - - - - - - - - - - son of henry viii - mary - - - - - - - - - - - - daughter of henry viii - elizabeth i - - - - - - - - - daughter of henry viii - james i - charles i - - - - - - - - - - - son of james i - oliver cromwell - charles ii - - - - - - - - - - -son of charles i - james ii - - - - - - - - - - - -son of charles i - william and mary - william iii - anne - - - - - - - - - - - granddaughter of james ii - george i - george ii - - - - - - - - - - - son of george i - george iii - - - - - - - - - - son of george ii bibliography . - ancient laws and institutes of england, printed by command of his late majesty king william iv under the direction of the commissioners of the public records of the kingdom, vol ; . . - the laws of the kings of england from edmund to henry i, a.j. robertson, . . - the statutes of the realm . - statutes at large . - a treatise of the laws of the forest, john manwood, . - history of english law; william holdsworth . - history of english law, pollack and maitland, . - anglo-saxon charters, a. j. robertson, . - franchises of the city of london, george norton, . -borough customs vol. , selden society, . -royal writs in england from the conquest to glanvill, selden society, . -lawsuits from william i to richard i, selden society, . -treatise on 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church, marshall baldwin, . the court of common pleas in fifteenth century england, margaret hastings, . english courts of law, hanbury and yardley, . the jury, w. r. cornish, . women in medieval society, susan stuart, . the king and his courts - john and henry iii, ralph turner, . oxford history of the laws of england. vol , r. h. helmholz, . leges henrici primi, l.j. downer, . black's law dictionary, henry black, . webster's dictionary, noah webster, . an introduction to early english law, bill griffiths, . pelican history of england: ) roman britain, i.a. richmond, ) the beginnings of english society, dorothy whitelock, ) english society in the early middle ages, doris stenton, ) england in the late middle ages, a.r. myers, ) tudor england, s.t. bindoff, ) england in the seventeenth century, maurice ashley, - - - - - - - - - - - - -the end - - - - - - - - - - - - - index abbey; abbot, abbess; abduction; accessory; account; administrator; admiralty; adultery; adverse possession; adulterated; advowson; aethelbert; aethelred; affidavit; agreement; agriculture; augustine. st.; aids; alderman; ale; alehouses; alfred; alienate; aliens; allegiance; alms; amerce; america; anabaptist; ancient; anglo-saxons; anglo-saxon chronicles; annulment; apothecaries; apparel laws; appeal; appellate; apprentices; appurtance; archbishop; architect; aristotle; arkwright, richard; arraign; arson; arthur; articles of religion; artificer; artisan; assault; assay; assign; assize; assizes; assumpsit; astrology; at pleasure; atheism; attainder; attaint; attorneys; babies; bachelor; bachelor of arts; back-berend; bacon, francis; bacon, roger; bacteriology; bail; bailiff; baker; ballads; bank of england; bankruptcy; baptist; bar; barber; barber-surgeon; bargain and sale; barons; baron court; barristers; bastard; bath; battery; beadle; beating; becket; beer; beggar; benefit of clergy; benevolence; beowulf; bequeath, bequest; bible; bigamy; bill; bill of attainder; bill of exchange; bill of rights; billet; birmingham; bishops; black death; blackstone, william; blinding; blodwite; blood-letting; bocland; book of common prayer; bordars; borough; boston; bot; boyle, robert; bracton, henry de; brass; brawling; breach; breach of the peace; bread; brewster; bribery; brick; bridge; bridgebot; bristol; brokers; bullock, case of; burgbot; burgess; burglary; burh; burial; burning; butcher; butler; calais; calvin; cambridge university; canals; cannon; capitalism; carbon dioxide; carpenter; carriages; carucage; carver; castle; castle-guard; cathedral; catholics; cattle; cavaliers; cecil, william; censorship; ceorl; certiorari; challenge; champerty; chancellor; chancery; chancery court; charter; chattel; chaucer, geoffrey; chemistry; chevage; chief justice; chief justiciars; child; child abuse; children; childwyte; christian; chivalry; christmas; church; church of england; church sanctuary; cicero; circuit; citizen; city; civil; civil courts; civil war; claim; clans; class; clergy; clerics; cloth-maker; coaches; coal; coffee houses; coin; coke, edward; college of physicians and surgeons; colonies; commission; common land; common law; commons, house of; commonwealth; compurgation; compurgator; confession; congregationalists; conqueror; consideration; constable; constitution; contract; conventile; conveyance; conviction; cooper; copernicus; copper; copyhold; copyrights; cordwainer; coronation charter; coroner; corporation; corruption of the blood; council; counterfeit; county; county courts; courtesy; court of common pleas; court of high commission; court of king's bench; courtesy; court martial; covenant; coverture; coventry; craft; craft guild; cranmer, thomas; creditor; crime; criminal; cromwell, oliver; cromwell, thomas; crown; cupbearer; curfew; currier; custody; customary tenant; customs; damages; danegeld; danes; darrein presentment; daughter; death; death penalty; debt, debtors; deceased; decree; deed; deer; defamation; defendant; demesne; denizen; deodand; descendant; descartes, renee; desertion; detinue; devise; dispensary; disseisin; dissenter; distraint; distress; divorce; doctorate; dog; doomsday book; doublet; dower; dowery; drake, francis; drover; drunkenness; duel; during good behavior; duties; dwelling; dyers; earl; east india company; easter; ecclesiastic; edith; education; eleanor, wife of edward i; eleanor, wife of henry ii; election; electricity; elizabeth, wife of henry vii; embroiderer; enclosure; english; engrose; episcopal church; equity; equity court; erasmus; escape from gaol; escheat, escheator; escuage; esquire; established church; estate; estate administration; estate tail; euclid; exchequer; excommunication; excise tax; executor; export; extent; eyre; factory; fair; father; fealty; fee; fee simple; fee tail; felony; feme covert; feme sole; feoff; fermat, pierre; feudal; feudal tenures; fihtwite; fine; fire; firdfare; fire-fighters; fishermen, fishmonger; flint; flogging; flymenfyrm; flying shuttle; folkmote; food riots; footmen; forced loans; forced marriage; forestall; forest charter; forestall; forestel; forests; forfeit; forgery; forms of action; fornication; fortifications; foster-lean; france; frank-almoin; franklin, benjamin; frankpledge; fraternity; fraud; freedom of speech; freehold, freeholder; freeman; freemason; freewoman; friar; frith guild; fuller; fustian; fyrd; fyrding; fyrdwite; gage; galilei, galileo; gambling; games; gaols; gaol distemper; gawaine; gentleman; gentry; geology; georgia; german, christopher st., gift; gilbert, william; guildhall; guilds; gin; glanvill; glass; glorious revolution; gloves; god; godfather; gold; goldsmiths; good parliament; goods; government; grain; grammar schools; grand assize; grand jury; grand tour; grants; grave; gravitation; greek; gresham, thomas; grithbrice; guardian, guardianship; guenevere; hair; hall; halley, edmond; hamsocne; hand-habbende; harboring; harrington, james; harvard college; health; heir; heresy; heriot; hidage; hide; high commission court; hilda; hillforts; holidays, holydays; homage; homicide; hooke, robert; horse; horse racing; hospitals; house-breaking; house-holder; house of commons; house of lords; houses; houses of correction; hue and cry; humanism, humors; hundred rolls; husbreche; huygens, christian; hundred; hundred courts; hunt; husband; hustings court; hut; illegitimacy; illness; illuminators; impeach; import; imprisonment; incest; income tax; independents; indenture; indictment; industry; infangthef; infiht; inflation; inheritance; innkeeper; inns of court; inoculation; inquest; insocna; insurance; interest; interrogatory; intestate; iron; itinerant; jail; jesus; jews; joan of arc; joint tenants; joint-stock companies; jointure; jones, inigo; journeyman; judge; jurisdiction; jurors; jury; justice; justices in eyre; justices of assize; justices of the peace; justiciar; kent county; keplar, johannes; kill; kin, kindred; king; king alfred the great; king charles i; king charles ii; king edward i; king edward the confessor; king george iii; king henry i; king henry ii; king henry vii; king henry viii; king james i; king james ii; king john; king richard the lion-hearted; king william and mary; king william i, the conqueror; king's peace; knight; knight's fee; knights' guild; knitting; laborer; ladies; land; landlord; land-owner; larceny; lastage; latin; law merchant; lawsuit; lawyer; laxton; lay; leap year; lease; leather; leet court; legacy; legerwite; legislation; legitimacy; leibniz, christian; leicester; letters; libel; liberi quadripartitus; library; license; life; life-estate; lighthouse; limb; linen; lion of justice; literacy; literature; littleton, thomas; livery; lloyds; locke, john; london; long parliament; longitude; lord; lords, house of; loriner; lottery; loyalty; machine; magistrates; magna carta; magnate; maiden; mail; magic; malicious prosecution; maintenance; manchester; manor; manor courts; manufacturing; manumission; marco polo; market; marriage; marriage agreement; marriage portion; marshall; marquise; massachusetts; master of arts; masters; matilda; mayflower; mayor; maypole; mead; measures; meat; medicine; melee; member; merchandise; merchant; merchant adventurers; merchant guilds; merchet; merciless parliament; mercy; merton; mesne; methodists; microscope; middlesex; midwives; military service; militia; miller; minister; minor; minstrels; miskenning; moat; model parliament; monarchy; monasteries; money; moneyer; monks; monopoly; moot; more, thomas; morgen-gift; morning gift; mort d'ancestor; mortgage; mortmain; mother; murder; murdrum; mutilation; napier, john; navy; newcastle- on-tyne; new england; new model army; newspapers; newton, issac; new world; nobility; noblemen, nobles; nonconformists; normans; novel disseisin; nuisance; nun; oakham, william; oaths; offender; oil; one hundred year war; open field system; ordeal; ordinance; orphans; outlaw; oxford university; oxygen; papists; parent; parishes; parliament; parliament of saints; partition; party; pascal, blaise; passport; patents; pauper; pawn; peasant's revolt; peers; peine forte et dure; penalty; penitentiary; penn, william; pennsylvania; penny; per stirpes; perjury; personal injury; personal property; petty serjeanty; petition; petition of right; physicians; piers plowman; pigherds; pilgrim; pillory; pipe rolls; piracy; pirate; plague; plaintiff; plato; plays; pleading; pleas; police; pontage; poor; pope; popery; population; port; portreeve; portsoken ward; posse; possess; postal system; post mortem; pottery; praecipe in capite; pressing; presbyterians; prescription; presentment; priest; printing; prison; privy council; privy seal; probable cause; probate; proclamation; promise under seal; promissory note; property; prosecutor; prostitutes; protectorate; protestants; puritans; purveyance; putting out system; quakers; quaranteen, quarter sessions; queen; queen elizabeth i; queen mary; queen's bench; quo warranto; rack; ralegh, walter; rape; ray, john; real action; recognition; reeve; reformation; regrate; release; relief; religion; remainder; renaissance; rent; replevin; residence; restoration; reversion; revolt; reward; rights; riot; riot act; roads; robbery; robin hood; roemer, olaus; roman law; root and branch petition; roundheads; royal court; royal navy; royal society; royalists; rump parliament; russia; sacrament; sacrifice; sailor; sake and soke; sale; salt; saltworks; sanctuary; sandwich; saxon; scaetts; scavage; scholar; school; science; scolds; scot; scrofula; scutage; seal; seamen; searchers; search warrant; sedition, seditious; seisin; self- defense; self-help; separatists; serf; serjeanty; servant; service; servitude; settlement; sewer; shakespeare, william; shaving; sheep; shelley's case; sheriff; sheriff's turn; shillings; ships; shipwreck; shire; shire courts; shire-gemot; shoemaker; short parliament; shrine; sickness; silver; slade's case; slander; slave; slingshot; smallpox; smith; smithfield; socage; sokemen; soldiers; solicitor; son; spanish armada; speedy pursuit; spinning; spinning jenny; spinning wheel; spinsters; spouse; st. augustine; st. germain; st. lazarus; st. paul's church; statute of laborers; squire; staple; star chamber court; strangers; steam; steel; stengesdint; stevinus; steward; stock-and-land lease; stocking-frame knitters; stocks; stolen goods; stone; stonehenge; straw; streets; stretbreche; subtenants; successor; sue; suit; summary; summon; sunday; supporters of the bill of rights society; surety; surgery; surname; swearing; swords; tale; tallage; tanner; tavern; tax; tea; team; ten commandments; tenancies; tenancy, tenant; tenants in common; tenement; tenure; term; testament; thames, river; theft; thegn; theodore; theology; theow; thermometer; thirty years' war; tile; tiler; tin; title; tolls; tories; torricelli, evangelista; tort; torture; tournament; tower hill; tower of london; town; town-reeve; trades, tradesmen; transportation; treason, high and petit; treasure trove; treasury; trespass; trespass on the case; trial by combat (battle); trover; turnpike; twelve; tyne; umbrella, unitarians; university; usury; use-trust; vagrants, vagrancy; vassal; verderer; verdict; vessels; vikings; vill; villages; villeinage; villeins; vintner; virginia; wall; wallis, john; war of the roses; ward, wardship; wardmoot; wardrobe; warrantor, warranty; waste; water; watermen; watermill; waterwheel; watt, james; wealthy; weapon; weaving, weavers; webs; wed; wedding; weights; weir; well; wer, wergeld; wesley, john; westminster; whigs; whipping; white tower; whitsuntide; widows; wife; wife-beating; wills; winchester; windmills; window tax; wine; witch; witchcraft; wite; witan; witanagemot; witnesses; wives; wolsey, thomas; wyclif, john; woman-covert; women; wool; wounding; writs; writs of assistance; writs of error; year books; yeomanry, yeomen generously made available by the internet archive/american libraries.) [illustration: the corridors of the courts] a philadelphia lawyer in the london courts by thomas leaming _illustrated by the author_ second edition, revised new york henry holt and company copyright, , by henry holt and company published may, preface the nucleus of this volume was an address delivered before the pennsylvania state bar association which, finding its way into various newspapers in the united states and england, received a degree of favorable notice that seemed to warrant further pursuit of a subject heretofore apparently overlooked. successive holiday visits to england were utilized for this purpose. as our institutions are largely derived from england, it is natural that the discussion of public questions and the glimpses of important trials afforded by the daily papers--usually murder trials or divorce cases--should more or less familiarize americans with the english point of view in legal matters. american lawyers, indeed, must keep themselves in close touch with the actual decisions which are collected in the reports to be found in every library and which are frequently cited in our courts. nothing in print is available, however, from which much can be learned concerning the barristers, the judges, or the solicitors, themselves, whose labors establish these precedents. they seem to have escaped the anthropologist, so curious about most vertebrates, and they must be studied in their habitat--the inns of court, the musty chambers and the courts themselves. the more these almost unknown creatures are investigated, the more will the pioneer appreciate the difficulty of penetrating the highly specialized professional life of england, of mastering the many peculiar customs and the elaborate etiquette by which it is governed and of reproducing the atmosphere of it all. he will find that he can do little but record his observations. it was not unknown to him that some lawyers in england are called barristers, some solicitors, and he had a vague impression that the former, only, are advocates, whose functions and activities differ from those of the solicitor; but he was hardly conscious that the two callings are as unlike as those of a physician and an apothecary. it requires personal observation to see that the barristers, belonging to a limited and somewhat aristocratic corps, less than of whom monopolize the litigation of the entire kingdom, have little in common with the solicitors, scattered all over england. the former are grouped together in their chambers in the inns, their clients are solicitors only, they have no contact, perhaps not even an acquaintance, with the actual litigants and a cause to them is like an abstract proposition to be scientifically presented. the solicitors, on the other hand, constitute the men of law-business, whose clients are the public, but who can not themselves appear as advocates and must retain the barristers for that purpose. again, it is difficult to grasp fully the influence exercised through life by the barrister's inn--that curious institution, with its five hundred years of tradition--voluntarily joined by him when a youth; where he has received his training; by which he has been called to the bar and may be disbarred for cause, and upon the benchers of which inn he must naturally look as his exemplars, although the lord chancellor may be the nominal creator of king's counsel and the donor of judge-ships. the impulse of these inns is still felt at the american bar, despite more than a century's separation, for, about the time of the revolution, over a hundred american law students were in attendance, not only acquiring, for use in the new country, a sound legal training, but absorbing the spirit of the profession which has been transmitted to posterity, although its source may be forgotten. nor will anything he has read prepare the american for the abyss which separates the common law barrister, who spends his days in jury trials, from the chancery man, who knows nothing but equity courts; nor for the complete ignorance, if not contempt, with which they seem to regard each other. k. c.'s, indeed, are afforded their title in the reports--even in the newspapers--but nowhere does it appear that "leaders" are appointed by the judge of a particular equity court to "take their seats" and practice before him exclusively, being associated in each case with "juniors," who in turn have "devils" to prepare their cases; or that a leader may sever this relation and thereafter "go special"; yet all these, and many other peculiar and inviolable customs, are handed down from one generation to another to be followed as if by instinct: and the profession would no more trouble the busy world with such matters than a dog would feel it necessary to explain that he turns thrice before lying down, simply because his wolfish ancestor did so in order to make a bed in the grass. in this environment of ancient custom, however, the american is surprised to find the most up-to-date courts in the world and an administration of law which is so prompt, so colloquial, so simple, so free from formality and so thoroughly in touch with the ordinary man's every-day life, as to provoke a blush for the tribunals of the vaunted new world, still lagging in their archaic conventionality and their diffuse and dilatory methods. at home, the american has been perplexed by the threadbare assertion that we have as many judges in a large city as has all england, but he shortly learns that such comparison considers only the few judges of the high court, and ignores the others and the officials performing judicial functions, so numerous that the little island fairly teems with its justiciary and that the implied criticism is due to ignorance of the facts. the trials, both civil and criminal, will reveal the complete triumph of common sense and the englishman will appear at his best in his court, for there he leads the world. the hearty good humor, alacrity and crispness of the proceedings, the absence of declamation but the avoidance of monotony by the proper distribution of emphasis, all combine to delight the practised observer. the disciplining of the profession by means of a body to whom may be privately submitted questions of morals and manners, mostly solved by gentle admonition and rarely by severe action, will suggest that our single punishment--disbarment--is so drastic as rarely to be invoked and hence largely fails as a corrective. from the "bobby" in the street, to the lord chancellor on the woolsack, from a hearing by a registrar to collect a petty debt, to the donning of the black cap in order to sentence a murderer; all will prove suggestive to the alert american who will nevertheless depart with a feeling that, while there is room for improvement at home, yet, upon the whole, there is much of which to be proud in our administration of the sound old law of our ancestors. the kindly aid of a number of english judges, barristers and solicitors, by way of suggestion and criticism, is gratefully acknowledged. the occasional illustrations are photographic reproductions of original oil sketches. philadelphia, april, . preface to the second edition in accordance with the kind suggestions of a well-known barrister, a number of corrections have been adopted in the text of this edition. some of them it had been the intention of the author to make before his death and others have seemed necessary in order to secure greater accuracy and to preserve the value of the book for purposes of reference. may , . contents chapter page i. first impressions the law courts building on the strand.--a court room.--participants in a trial.--wigs and gowns. --colloquial methods.--agreeable voices.-- similarity to american trials. ii. the making of lawyers classes from which barristers and solicitors are drawn.--the inns of court.--inns of chancery.-- american students at period of revolution.--a barrister's chambers.--training of barristers in an inn.--being called to the bar.--training of solicitors. iii. barristers waiting for solicitors as clients. "devilling." --juniors.--conduct of a trial.--"taking silk." --becoming a k. c.--active practice.--the small number of barristers. iv. barristers--the common law and chancery bars bar divided into two parts. no distinction between criminal and civil practice.--leaders.--"taking his seat" in a particular court.--"going special." --list of specials and leaders.--significance of gowns and "weepers." "bands."--"court coats."-- wigs in the house of lords.--barristers' bags, blue and red. v. solicitors line which separates them from the bar.--solicitor a business man.--family solicitors.--great city firms of solicitors.--the number of solicitors in england and wales.--tendency toward abolishing the distinction between barrister and solicitor.-- solicitors wear no distinctive dress except in county courts.--solicitors' bags. vi. business and fees influential friends of barrister.--junior's and leader's brief fees.--fees of common law and chancery barristers.--barrister partnerships not allowed.--english litigation less important than american.--clerks of barristers and solicitors haggle over fees.--solicitors' fees. vii. discipline of the bar and of solicitors the general council of the bar.--the statutory committee of the incorporated law society. --rulings on various matters.--lapses from correct standards. viii. the civil courts the general system.--different courts.--rules of practice made by lord chancellor.--juries, common and special.--judges and how appointed.--judges' pay.--costs. court notes.--some differences in english and american methods. ix. courts of appeal the court of appeal.--house of lords.--divisional court.--judicial committee of the privy council. x. masters--the time savers current hearings.--minor issues threshed out. xi. the police courts current hearings. xii. the central criminal court--the old bailey current trials xiii. an important murder trial xiv. litigation arising outside of london local solicitors.--solicitors' "agency business." --the circuits and assizes.--local barristers. --the county courts.--the registrar's court. xv. general observations and conclusion index illustrations the corridors of the courts _frontispiece_ facing page crossing the strand from temple to court a jury trial a subject for the police court the sentencing of dhingra sidewalk socialism--hyde park a philadelphia lawyer in the london courts chapter i first impressions the law courts building on the strand--a court room--participants in a trial--wigs and gowns --colloquial methods--agreeable voices-- similarity to american trials. leaving the busy strand at temple bar and entering the law courts building, one plunges into that teeming hive where the disputes of millions of british subjects are settled by law. here the whole kingdom begins and ends its legal battles--except the cases on circuit, those minor matters which go to the county courts, and the very few which reach the house of lords. the visitor, strolling through the lofty gothic hall and ascending one of the stair-cases to the second floor, finds himself in a long, vaulted corridor, sombre and quiet, which runs around the building. there are no idle crowds and there is no smoking, but, curiously enough, frequent refreshment bars occupy corners, where drink as well as food is dispensed by vivacious bar-maids.[a] here and there, a uniformed officer guards a curtained door through which may be had a glimpse of a court room; but no sound escapes, because of a second door of glass, also draped with curtains. groups of litigants and witnesses await their turns or emerge with flushed faces and discuss their recent experiences before returning to the roar of london. barristers pace up and down in wig and gown, or retire to a window-seat for conference with their respective solicitors. a mere sight-seer, having thus visited the courts, passes on his way, but as the administration of law, from the lord chancellor to the "bobby," is the thing best done in england and commands the admiration and imitation of the world, the courts deserve more than a casual visit. passing the officer and the double-curtained doors, one enters the court-room, which is usually small and lofty, with gray stone walls panelled in oak, subdued in color and well lighted from above. the admirable arrangement of seats sloping steeply upward on all sides, instead of resting upon a level floor, brings the heads of speakers and auditors near together; and the bright colors of the judges' robes--scarlet with a blue sash over the shoulder in the case of the lord chief justice, and blue with a scarlet sash in the case of most of the others, together with various modifications of broad yellow cuffs--first strike the eye. the judge's bewigged head, as he sits behind his desk, is about twelve feet above the floor. on his left, at the same level, stands the witness, who has reached the box by a small stairway. at the judge's right are the jury, seated in a box of either two rows of six or three rows of four, the back row being nearly on a level with the judge. in front of the judge, but so much lower as to oblige him to stand on his chair when whispering to his lordship, sits his "associate," a barrister in wig and gown, whom we should designate as the clerk of the court. facing the associate is the "solicitors' well," at the floor level, where, on the front row of benches, sit the solicitors in ordinary street dress. then come the barristers--all in wig and gown--seated on wooden benches, each row with a narrow desk which forms the back of the seat in front. the desks are supplied with ink wells, and with the inevitable quill pen. the barristers keep their places until their cases are reached and then try them from the same seats, so that there is always a considerable professional audience. for the public there is little accommodation--usually only a few benches back of the barristers and a meagre gallery above. the solicitor, whose client may be the plaintiff or the defendant, has prepared the case and knows its ins and outs as well as the personal peculiarities of the parties and witnesses who will be called, but he is unable to take any part in the trial and can only whisper an occasional suggestion to the barristers he has retained, by craning his neck backward to the leader behind him. this leader is a newcomer into the case. he is a k. c. (king's counsel) who has been "retained" by the solicitor upon payment of a guinea followed by a large "agreed fee," and he leaves the "opening of the pleadings" to the junior immediately back of him, while the latter, in turn, has handed over the preparation to his "devil" who is seated behind him. thus, the four men engaged on a side, instead of being grouped around a counsel table, as in america, are seated one in front of the other at different levels, rendering a general consultation difficult when questions suddenly arise. the two men on each side of the case who know most about it have no voice in court, for the devil is necessarily as mum as the solicitor, and the name of the former does not even appear in the subsequent report of the trial. how this comes about requires some acquaintance with the different fields of activity of barristers and solicitors, which will be referred to later. in thus glancing at an english court, an american's attention is sure to be arrested by the wig. the barrister's wig, for his ordinary practice in the high court, has a mass of white hair standing straight up from the forehead, as a german brushes his; above the ears are three horizontal, stiff curls, and, back of the ears, four more, while behind there are five, finished by the queue which is divided into tails, reaching below the collar of the gown. there are bright, shiny, well-curled wigs; wigs old, musty, tangled and out of curl; some are worn jauntily, producing a smart and sporty effect, others look like extinguishers. so grotesque is the effect that it is difficult to realize that these men are not mummers in some pageant of modern london, but that they are serious participants in grave proceedings. not only the eye, but the ear will convey novel and favorable impressions to the observer. he will be struck by the cheerful alacrity and promptness of the witnesses, by the quickness and fulness of their responses, by a certain atmosphere of complete understanding between court, counsel, witnesses and jury, and more than all, by the marked courtesy, combined with an absence of all restraint, and a perfectly colloquial and good-humored interchange of thought. it is hard to define this, but it certainly differs from the air of an american tribunal where the participants seem almost sulky by comparison. the englishman in his court is evidently in his native element and appears at his best. the voices, too, are most agreeable, although many barristers acquire the high-pitched, thin tone usually associated with literary and ecclesiastical surroundings. besides superior modulation, the chief merit is in the admirable distribution of emphasis. in this respect both the dialogue and monologue in an english court room are far less monotonous than in an american. passing the superficial impression and coming to the underlying substance, there is extraordinarily little difference between law courts on both sides of the atlantic. not only is the common law the same, and the legislation of the two countries largely parallel, but the method of law-thought--the manner of approaching the consideration of questions--is precisely identical, so that, upon the whole, the diversity is no greater than that which may exist between any two of the forty-six states. indeed, so complete is the similarity that an american lawyer feels that he might step into the barristers' benches and conduct a current case without causing the slightest hitch in the proceedings, provided he could manage the wig and that the difference of accent--not very marked in men of the profession--should not attract too much attention. that the law emanating from the little island, which could be tucked away in a corner of some of our states, should have spread over the vast territory of america and control such an enormous population with its many foreign strains, and that, as the decades roll on, it should thrive, improve, and successfully grapple with problems never dreamed of in its origin, indicates its surprising vitality and stimulates interest in the methods now in vogue in its native land. footnote: [a] very recently these bars have been moved to restaurants on the lower floor. chapter ii the making of lawyers classes from which barristers and solicitors are drawn--the inns of court--inns of chancery-- students at period of revolution--a barrister's chambers--training of barristers in an inn--being called to the bar--training of solicitors. to young englishmen possessing neither fortune nor influence, the profession of the law has long been an open road to advancement in a country notable for orderly and constitutional methods, where the ultimate appeal is always to reason. perhaps the worship of money, which characterizes modern england, has somewhat lessened the prestige of success at the bar there, as it has done in america, where a millionaire, upon urging his son to enter the profession, was met by the young hopeful's reply: "pooh, father, _we_ can hire lawyers." nevertheless, the law still draws its recruits from the flower of the youth of both countries and, in england, it appeals to two types of men: to those who would become barristers, and to those whose ambition soars no higher than the solicitor's calling; moreover the classes from which the candidates are generally drawn, differ as do their training and the future functions. traditionally, indeed, the sons of gentlemen and the younger sons of peers were restricted, when seeking an occupation, to the army, the navy, the church and the bar. they never became solicitors, for that branch, like the profession of medicine, was somewhat arbitrarily excluded from possible callings, but this tradition, as is the case with many others, has been gradually losing its force of late years. it must always have been a little hazy in its application, owing to the difficulty of ascertaining accurately the status of the parent, if not a peer; and sir thomas smith who, more than three centuries ago, after describing the various higher titles, attempted a definition of the word "gentleman," could formulate nothing more definite than the following: "as for gentlemen they be made good cheap in this kingdom; for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and, to be short, who can live idly and without manual labor, and will bear the port, charge and countenance of a gentleman, he shall be called master and shall be taken for a gentleman." the ancient books, too, afford a glimpse of a struggle on the part of the bar to demand a certain aristocratic deference, for an old case is reported where the court refused to hear an affidavit because a barrister named in it was not called an "esquire." that the struggle was not in vain, is evidenced by the reply of an old-time lord chancellor, who, when asked how he made his selection from the ranks of the barristers when obliged to name a new judge, answered: "i always appoint a gentleman and if he knows a little law, so much the better." naturally, the solicitor (who was formerly styled an attorney, except when practicing in an equity court) was sensitive about his own position, for the passage of a now-forgotten act of parliament was once procured, decreeing that attorneys should thereafter be denominated as "gentlemen." but times have changed in the law, as in other fields of activity, and sons of good families, as well as those of less degree, now enter both branches of the profession. hence, representatives of the best names in england are to be found on the barristers' benches side by side with self-made men, some of whom have become ornaments of the bar, and with men of divers races, such as swarthy east indians, and dutch south africans. one or two barristers may even be found, who, although members of the bar and necessarily of one of the inns, nevertheless, remain, as born, american citizens. the bar, in short, although a jealously close and exclusive organization, has become a less aristocratic body and is now a real republic where brains and character count. the same diversity of origin exists amongst the solicitors, for, as has been stated, they are now, in part, recruited from those who formerly would have condescended to nothing less than the bar. a constant improvement in training, too, in the promulgation of rules of professional conduct, in the enforcement of a firm discipline and in the nursing of traditions, all tend to raise and maintain a higher standard and a better tone than formerly existed in the ranks of the solicitors. thus, the modern tendency is that there should be less difference in the personnel of those entering either branch of the profession. candidates for the bar are mostly university men, more mature in years, perhaps, than our graduates--for boys commence and end their college courses late in england--and they are, as a rule, more broadly cultivated than those who intend to become solicitors. some, indeed, take a full course of theoretical law at oxford or cambridge before beginning practical training as a student in one of the inns of court, which are peculiarly british institutions, having no counterpart elsewhere. physically, an inn of court is not a single edifice, nor even an enclosure. it is rather an ill-defined district in which graceful but dingy buildings of diverse pattern and of various degrees of antiquity, are closely grouped together and through which wind crooked lanes, mostly closed to traffic, but available for pedestrians. unexpected open squares, refreshed by fountains, delight the eye, the whole affording the most peaceful quietude, despite the nearness of the roar of surrounding london. the four inns of court (as distinguished from the inns of chancery and serjeants' inn, all of which have ceased to exist) are, the middle temple, the inner temple, lincoln's inn and gray's inn, but the last is of minor importance in these modern days, having fallen out of fashion. the middle temple and the inner temple acquired, by lease in the xiv century, and by actual purchase in , the lands of the knights templar, consisting of many broad acres situated on the south side of the strand and fleet street, opposite the present law courts building, and the whole space is now occupied by an intricate mass of structures--the great halls, the libraries, the quaint barristers' chambers--and by the beautiful temple gardens, sloping to the thames, adorned with bright flowers and shaded by fine trees. there is no line of demarcation between the two temples--one simply melts into the other. they own in common the temple church, part of which dates from , with its recumbent black marble figures of knights in full armor and, in the churchyard, its tomb of oliver goldsmith. the wonderful hall of the middle temple, where the benchers, barristers and students still eat their stated dinners, was built about , and is celebrated for its interior, especially for the open-work ceiling of ancient oak. shakespeare's comedy, twelfth night, was performed in the hall in , and it is believed that one of the actors was the author himself. the library is a great one, but an american lawyer may be surprised at the incompleteness of the collection of american authorities. the hall of the inner temple, on the other hand, is quite modern, although most imposing and in the best of taste. lincoln's inn became possessed about of what was once the country-seat of the earl of lincoln, which, running along chancery lane, adjoins the modern law courts building on the north and consists of two large, open squares surrounded by rows of ancient dwellings, long since converted into barristers' chambers, and shady walks leading to a fine hall of no great antiquity, however. an old gateway, with the arms of the lincolns and a date, a. d. , is considered a good example of red brick-work of a gothic type--probably the only one left in london. the library, which has been growing for over four hundred years, contains the most complete collection of books upon law and kindred subjects in england, numbering upward of , volumes. these three inns of court are the active institutions; the fourth, gray's inn, which probably took its name from the greys of wilton who formerly owned its site, has long since ceased to be of much importance, although the old hall and the classic architecture of some of the chambers, still attracts the eye. it happens, however, that a philadelphia student, who attended this ancient inn nearly two hundred years ago, was responsible for the phrase still proverbial on both sides of the atlantic, "that's a case for a philadelphia lawyer." the unpopular royal judges of the province of new york had, in , indicted a newspaper publisher for libel in criticising the court and they threatened to disbar any lawyer of the province who might venture to defend him. but, from the then distant little town on the delaware, the former student of gray's inn, although an old man at the time, journeyed to albany and, by his skill and vehemence, actually procured a verdict of acquittal from the jury under the very noses of the obnoxious court; the fame of which achievement spread throughout not only the colonies but the mother-country itself. names great in the law, in literature, in statecraft and in war are linked with each of these venerable establishments, to record which would mean to review much of the history of england as well as of america; for, besides the early colonial students, a large number were entered in the different inns during the period immediately preceding the revolution. of these, south carolina sent forty-seven, virginia twenty-one, maryland sixteen, pennsylvania eleven, new york five and new england two. the names of many of them are later to be found amongst the leaders of the bar of the new country, on the bench as chief justices and even as signers of the declaration of independence. the halls of the inns were once the scenes of masques and revels, triumphs and other mad orgies, in which the benchers, barristers and students took part; including, as mentioned, the production of shakespeare's plays during his lifetime. in these halls also occur the stated dinners--to which, in the temple, at least, the porter's horn still summons. the members and students of the inn, arrayed in gowns, attend in procession and, entering the hall, seat themselves on long benches before oaken tables; the governing body--the benchers--being placed at one end where the floor is elevated. it is pleasant to record that, during the last year or two, the daily contact of the barrister with his inn has been increased by the innovation of a luncheon which is served in the hall at the hour when the courts take a recess. on this occasion the most noted english advocates may be seen, strolling in without removing their silk hats, sometimes without even having dispensed with wig and gown, when, seating themselves on the uncompromising oak, they call for a chop and beer and relax into jolly sociability. at one time barristers actually lived in the inns of court, but this practically ceased about the time of the reign of elizabeth. all of them now have their "chambers" in the obsolete little dwelling houses, facing upon the open squares or narrow lanes of the inns, which are merely offices, but very unlike those of an american lawyer in one of our "skyscrapers." entering the front door by a low step, or climbing two or three flights of a rickety staircase in one of these houses, the visitor finds a door on which, or on a tin sign, are painted the names of one or more gentlemen, without stating their occupations, which would be superfluous in this small world of barristers. a summons by means of the old iron knocker, discloses the barrister's clerk, whose habitat is an outer room, and whose business it is to receive visitors--perchance the clerks of solicitors with briefs and fees. ushered into the barrister's sanctum, one finds a meagrely furnished room, the walls masked with rows of books, the table, chairs and window-sills littered with papers. amidst all this, a modern telephone looks quite out of place, and the american tries to avoid detection when his eye unconsciously steals to a wig hanging on a hook back of the barrister's chair and to a round tin box, lying on the floor, which is for the transportation of the tonsorial armor when its owner travels on circuit. the otherwise uninviting aspect of the place is redeemed, however, by a cheerful fire blazing on the hearth and by a restful outlook upon a shady garden, and a splashing fountain, where the sparrows sip the water and take their dainty baths. here the barrister remains when not in court; but when the day's work is done, if he be prosperous, his motor car whisks him to the more elegant surroundings of a home in the west end, or, perhaps a humble bus and suburban train carry him far from town. the inns of court began their existence about , nearly cotemporaneously with the trade guilds, and both, doubtless, took their rise from the instinct of men engaged in a common occupation to combine for mutual protection. all lawyers were once men in holy orders and the judges were bishops, abbots and other church dignitaries, but in the xiii century the clergy were forbidden to act in the courts and, thereupon, the students of the law gathered together and formed the inns. much concerning their origin is obscure, but the nucleus of each was doubtless the gravitation of scholars to some ancient hostelry, there to profit by the teachings of a master lawyer of the day--just as the modern london club had its beginning in the convivialities of a casual coffee house. in time these loose aggregations developed into strong and elaborate organizations which acquired extensive real property, now of enormous value, and have long wielded a powerful influence. in order to enjoy the quiet of what was then the country, and yet to retain the advantage of the city's protection at a time when rural localities were far from safe, the inns were mostly located close to the west wall of the city, although the inner temple, as its name implies, is just within the line of that vanished wall, and thus they were convenient to westminster, where the courts were permanently located by a provision of magna charta. during the present generation, however, the principal courts (except the house of lords and the judicial committee of the privy council) have returned to a situation actually contiguous to the old inns, whilst the vast town, during the centuries, has not only engulfed westminster but has spread miles beyond it. thus, all the inns were grouped in a section, perhaps a square mile in extent, bounded on the east by chancery lane, which roughly follows the old city wall and between the thames on the south, and the district called holborn on the north. looking now to the functions of these ancient institutions, an inn of court may be defined as an unincorporated society of barristers, which, originating about the end of the xiii century, possesses by immemorial custom the exclusive privilege of calling candidates to the bar, and of disciplining, or when necessary, of disbarring barristers. the governing body is composed of the benchers, who are either judges or king's counsel and prominent junior barristers, but it is usual to invite a member to join the benchers of his inn when, and only when, a vacancy occurs. the executive officer is the treasurer, who is selected annually, and the members consist of the barristers and students. all the inns are alike in authority, and in the privileges which they enjoy and the regulations of each, governing the admission, education and examination of students and the calling to the bar of those who are qualified, are precisely uniform; any differences which may have existed having been abolished by the adoption in of a code of rules known as the "consolidated regulations." while there is thus complete equality and no official precedence, yet each inn has its own history, traditions and ancient customs. the choice of which inn to enter, thus becomes a matter of individual preference, depending upon sentiment, or upon family or social surroundings. the former inns of chancery should also be mentioned before leaving the subject, although they have no present interest for the modern lawyer. their origin, too, is buried in obscurity, but they arose about the same time as the inns of court, with one of which each was connected, and were at first places of preparatory training for young students later to be admitted to the particular inn. these youthful apprentices, however, were gradually ousted by the attorneys and solicitors--who have always been excluded from the inns of court--whereupon the inns of chancery fell out of fashion and deteriorated, so that by the middle of the eighteenth century they had disappeared and their names are now mere memories. during the period of activity of the inns of chancery, staple inn (perhaps the best known) and barnard's inn, were attached to gray's inn; clifford's inn, clement's inn and lyon's inn were intimately related to the inner temple; furnival's inn and thavie's inn to lincoln's inn; the new inn and strand inn to the middle temple. one block only of quaint elizabethan buildings, with gables of cross timber and plaster, still overhangs the great thoroughfare of holborn and marks what is left of staple inn. likewise serjeants' inn vanished in , when its valuable realty was sold--for serjeants-at-law had long ceased to be created--and the proceeds were divided amongst the few survivors; a proceeding much criticized at the time, although one of them gave his share to charity. the serjeants-at-law were once a class of barristers who had in some manner acquired the exclusive right of audience in the court of common pleas and had also secured a monopoly of the then profitable art of pleading. upon attaining this degree, a serjeant severed his relations with his inn of court and attached himself to the serjeants' inn. after having occupied several sites since the sixteenth century, serjeants' inn was finally located on chancery lane, and to it belonged all of the serjeants, and all of the judges of the common law courts, for they, necessarily, had been serjeants before being elevated to the bench. the buildings, which are small and have no pretensions to architectural beauty, have for many years been occupied as offices, chiefly those of solicitors. thus, of the many inns of chancery, of the serjeants' inn (and the once powerful societies which they housed), there remain none but the four great inns of court, through one of which must pass every barrister called to the english bar. this brief sketch may convey some idea of the extent to which the young law student unconsciously absorbs tradition, and is moulded, when plastic, by the pressure of centuries of custom and etiquette. whatever may have been his forebears, he is more than likely, when turned out as a full-fledged barrister, to answer pretty nearly to the old definition, for he has, indeed, been one "who studieth the laws of the realm" and he is apt to "bear the port, charge and countenance of a gentleman." to the embryo barrister, however, the existing inns possess interests far livelier than those referred to, for he must enter one of them, and not only thus gain access to the bar, but must ally himself to his choice unless he elects, by going through certain formalities, to emigrate to another inn. formerly he had only to attend a single function--a dinner--during each term and, having "eaten twelve dinners," he, ipso facto, became entitled to be called to the bar, no matter how inadequate might be his knowledge of the law. in these less aristocratic and more prosaic days, however, he is obliged diligently to apply himself to study, and to pass, from time to time, regular and strict examinations, prescribed by the council of legal education, so that his equipment is no longer left to chance, but is really measured with cold accuracy. the term of study is not less than three years, and twelve terms, four in each year, must be "kept" at the inn, the evidence of which is still the fact of dining in the hall six days during each term, although members of the universities of oxford and cambridge need dine but three days in each term. an english student's reading is much like that pursued in one of our own law schools, the chief difference being that he devotes more time to mastering general principles than to the consideration of reported cases from which our students are presumed to extract the underlying principle. much has been said in favor of each method, and the true course probably lies between the extremes, but the average result of an english law training, superimposed upon a generally superior prior education, is perhaps somewhat better than the average american result, while, as to the few on both sides of the water destined to attain real eminence, no superiority could fairly be claimed by either. the total fees payable by a student amount to about £ . and women, be it observed by progressive ladies, are not eligible for the bar in england. having passed the necessary examinations, the young barrister is finally "called to the bar," a ceremony which takes place in the hall of his inn, at the close of dinner on "grand day," which is the day appointed for a banquet, to which a score or more of distinguished guests are invited by the "treasurer and the masters of the bench." the students, wearing gowns over evening dress, are grouped together, below the dais on which the benchers' table stands. the steward of the inn calls out the names in order of seniority. each student, as his name is called, advances to the high table and halts there, facing the treasurer, who, standing up, says to him: "mr. ----, by the authority and on behalf of the masters of the bench, i publish you a barrister of this honorable society." then the treasurer shakes hands with the new barrister and the latter walks away to join his comrades. solicitors are created by entirely different methods, as there are no inns nor any similar organizations for students. there is a preliminary examination to determine whether the boy who desires to become a solicitor, has sufficient general education. if so, he is apprenticed, for a period of five years, to some practitioner, for which privilege he pays a sum of money, say from to guineas; the amount chiefly depending upon the solicitor's standing. there are official fees, too, amounting to about £ , so that, as he receives no compensation during his five years' apprenticeship, and meantime must be supported by his people, the cost of entering the solicitor's calling is not inconsiderable. he begins by copying papers and performing minor services in the public offices and, at the same time, pursues his legal studies, which have steadily become more arduous. his progress as a law student is ascertained by an intermediate examination, held under the direction of the solicitors' incorporated law society, and a final one determines whether he has acquired sufficient knowledge of the law to be admitted to practice. if shown to be qualified, he is admitted by the courts, and is thereafter subject to the discipline of the society and to that of the courts themselves, usually prompted by the society. the marked difference, therefore, that distinguishes the solicitor's training from that of the barrister, is the absence of any inn of court--with its _esprit de corps_--as a commanding influence in shaping his development and governing his whole career. nevertheless, while the whole body of solicitors is, perhaps, not as liberally educated nor as polished as the bar, the higher grade of solicitors are lawyers quite as well equipped, and gentlemen equally accomplished, as members of the bar itself. some glimpses of the separate roads which the barrister and the solicitor travel after their student days, will be reserved for later chapters. chapter iii barristers waiting for solicitors as clients--"devilling" --juniors--conduct of a trial--"taking silk" --becoming a k. c.--active practice--the small number of barristers. having been called to the bar, the question first confronting the young barrister is whether he really intends to practice. he may have read law as an education, meaning to devote himself to literature, to politics or to some other pursuit, or he may have embraced the profession in deference to the wishes of his family and to fill in the time while awaiting the inheritance of property. supposing him, however, to be one of the minority determined to rise in the profession, he is confronted with formidable obstacles, for he can not look to his friends to furnish him with briefs. he can never be consulted nor retained by the litigants themselves. the only clients he can ever have are solicitors, whose clients, in turn, are the public. he never goes beyond his dingy chambers in the inns of court, where, guarded by his clerk, he either wearily waits for solicitors with briefs and fees, or, more likely still, gives it up and goes fishing, shooting or hunting. and this furnishes the market for the alluring placards one sees at the old wig-makers' shops in the inns of court: "name up and letters forwarded for £ per annum." the early ambition of the young barrister is to become a "devil" to some junior barrister, who always has recourse to such an understudy, and, if the junior is making over £ , a year, he continuously employs the same devil. this term is not applied in a jocular sense, but is the regular and serious appellation of a young barrister who, in wig and gown, thus serves without compensation and without fame--for his name never appears--often for from five to seven years. the devil studies the case, sees the witnesses, looks up the law and generally masters all the details, in order to supply the junior with ammunition. before the trial the junior has one or more "conferences" with the solicitor, all paid for at so many guineas; occasionally he even sees the party he is to represent, and, more rarely, an important witness or two. the devil is sometimes present, although his existence is, as a rule, decorously concealed from the solicitor. if the solicitor, or the litigating party, grows nervous, or hears that the other side has employed more distinguished counsel, the solicitor retains a k. c. as leader. then a "consultation" ensues at the leader's chambers between the leader, junior, solicitor, and, occasionally, the devil. at the trial, the junior merely "opens the pleadings" by stating in the fewest possible words, what the action is about--that it is, perhaps, a suit for breach of promise of marriage between smith and jones, or to recover upon an insurance policy for a loss by fire--and then resumes his seat, whereupon the leader--the great k. c.--really opens the case, at considerable length and with much more detail and argument than would be good form in an american court. he states his side's contention with particularity, reads documents and correspondence (none of which have to be proved unless their authenticity is disputed--points which the solicitors have long ago threshed out) and he even indicates the position of the other side, while, at the same time, arguing its fallacy. having done this, he leaves it to the junior to call the witnesses--more often he departs from the court room to begin another case elsewhere, and returns only to cross-examine an important witness on the other side, or to make the closing speech to the jury. in this way a busy leader may have several trials going on at once. the junior then proceeds to examine the witnesses with the help of an occasional whispered suggestion from the solicitor, who is more than ever isolated by the departure of the leader, and the devil is proud when the junior audibly refers to him for some detail. if the leader is absent, which frequently happens notwithstanding his fee has been paid, inasmuch as no case is deferred by reason of counsel's absence, the junior takes his place, while the solicitor grumbles and more devolves upon the devil. occasionally, indeed, both leader and junior may be elsewhere and then is the glorious opportunity of the poor devil, who hungers for such an accident, for he may open, examine, and cross-examine, and, if neither his junior nor his august leader appear, he may even close to the jury. the solicitor will be white with rage and chagrin, wondering how he shall explain to the litigant the absence of the counsel whose fees he has paid, but the devil may win and so please the solicitor that the next time he may himself be briefed as junior. this is one of the things he has read of in the lives of the lord chancellors. the devil is in no sense an employee or personal associate of the junior--which might look like partnership, a thing too abhorrent to be permitted. on the contrary, he often has his own chambers and may, at any time, be himself retained as a junior, in which event his business takes precedence of his duties as a devil, and he then describes himself as being "on his own." having gained some identity, and more or less business "on his own" from the solicitors, a devil gradually begins to shine as a junior, whereupon appears his own satellite in the person of a younger man as devil, while the junior becomes more and more absorbed in the engrossing but ever fascinating activities of regular practice at the bar. reaching a certain degree of prominence, a junior at the common-law bar may next "take silk;" that is, become a k. c., or king's counsel, which has its counterpart at the chancery bar, as will be explained later when dealing with the division between the law and equity sides of the system. whether a barrister shall "apply" for silk is optional with himself and the distinction is granted by the lord chancellor, at his discretion, to a limited, but not numerically defined, number of distinguished barristers. the phrase is derived from the fact that the k. c.'s gown is made of silk instead of "stuff," or cotton. it has also a broad collar, whereas the stuff gown is suspended from shoulder to shoulder. whether or not to "take silk," or to become a "leader," is a critical question in the career of any successful common law or chancery barrister. as a junior, he has acquired a paying practice, as his fee is always two-thirds that of the leader. he has also a comfortable chamber practice in giving opinions, drawing pleadings and the like, but all this must be abandoned--because the etiquette of the bar does not permit a k. c. or leader to do a junior's work--and he must thereafter hazard the fitful fancy of the solicitors when selecting counsel in important causes. some have taken silk to their sorrow, and many strong men remain juniors all their lives, trying cases with k. c.'s much younger than themselves as their leaders. they tell this story in london: a certain scotch law reporter (recently dead), noted for his shrewdness and good judgment, having been consulted by a barrister whether to "apply for silk," advised him in the negative, but declined to go into particulars. the barrister renewed his inquiry more than once, finally demanding the scot's reason for his advice. the latter reluctantly explained that the barrister had a good living practice which he would be foolish to give up. being further pressed, he finally said: "in many years' observation of the bar i have learned that success is only possible with one or more of three qualifications, that is, a commanding person, a fine voice, or great ability, and i rate their importance in the order named. now, with your wretched physique, penny-trumpet voice, and mediocre capacity, i think you would surely starve to death." the barrister did not "apply," but never spoke to the scotchman again. the anecdote illustrates the crucial nature of the step when taken by any barrister, and even if taken with success, yet there are waves of popularity affecting a leader's vogue. solicitors get vague notions that the sun of a given k. c. is rising or setting--that the judges are looking at him more kindly or less so, therefore k. c.'s and leaders who were once overwhelmed with business, may sometimes be seen on the front row with few briefs. a successful k. c. leads a strenuous life, as may well be appreciated if he be so good as to take his american friend about with him in his daily work, seating him with the barristers while he is actually engaged. one very eminent k. c., who is also in parliament, rises in term time at a.m., and reads his briefs for the day's work until , when he breakfasts and drives to chambers. slipping on wig and gown at chambers and crossing the strand, or arraying himself in the robing room of the law courts, he enters court at : , and takes part in the trial or argument of various cases until o'clock, often having two or three in progress at once, which require him to step from court to court, to open, cross-examine, or close, having relied upon the juniors and solicitors to keep each case going and tell him the situation when he enters to take a hand. from to : he has consultations at his chambers, at intervals of fifteen minutes, after which he drives to the house of commons, where he sits until : , when it is time for dinner. if there is an important debate, he returns to the house, but tries to retire at midnight for four hours' sleep. naturally the long vacation alone makes such a life possible for even the strongest man. [illustration: crossing the strand from temple to court] his success, however, means much, for there lie before him great pecuniary rewards, fame, perhaps a judgeship, or possibly an attorney-generalship, both of which, unlike their prototypes in america, mean very high compensation, to say nothing of the honor and the title which usually accompany such offices. the english bar is small and the business very concentrated, but no statistics are available, for many are called who never practice. by considering the estimates of well-informed judges, barristers and solicitors, it seems that the legal business of the kingdom is handled by so small a number as from to barristers, although the roll of living men who have been called to the bar now includes , names. we have no bar with which to institute a comparison, for each county of every state has its own and all members of county bars, practicing in the appellate court of a state, constitute the bar of that state, which is a complete entity. great commercial centres have larger ones and have more business than rural localities, but no bar in america is national like that of london. it would be interesting, if it were possible, to compare the proportion of the population of england, which pursues the law as a vocation, with that of the united states, but no figures exist for the purpose. the number of barristers includes, as already stated, those who do not practice, while an enumeration of the solicitors' offices would exclude individual solicitors employed by others, as will be explained hereafter. the aggregate of these two uncertain elements, however, would be about , . the legal directories give the names of something like , lawyers in america of whom about , appear in fifteen large cities--new york, for example, being credited with over , , chicago with over , and san francisco with about , --leaving about , in the smaller towns and scattered throughout the land. these tentative, and necessarily vague, suggestions rather indicate that the proportion of lawyers may not be very unequal in the two countries. chapter iv barristers--the common law and the chancery bars bar divided into two parts--no distinction between criminal and civil practice--leaders--"taking his seat" in a particular court--"going special" --list of specials and leaders--significance of gowns and "weepers"--"bands"--"court coats"-- wigs in the house of lords--barristers' bags, blue and red. the bar is divided into two separate parts--the common law bar and the chancery bar; for a barrister does not try cases of both kinds as in america. the solicitor knows whether he has a law or equity case in hand, and takes it to the appropriate barrister. common law barristers have their chambers chiefly in the middle temple and inner temple; chancery men, largely in lincoln's inn, and the two kinds of barristers know little of, and seem even to have a kind of contempt for, each other. thus a common law barrister passes his life in jury trials and appeals; whereas a chancery man knows nothing but courts of equity, unless he follows a will case into a jury trial as a colleague of a common law man to determine an issue of _devisavit vel non_. and there are further specializations--although the divisions are not so marked--into probate, divorce or admiralty men. besides, there is what is known as the parliamentary bar, practicing entirely before parliamentary committees, boards and commissions. it is, however, curious that in england no apparent distinction exists between civil and criminal practice and common law barristers accept both kinds of briefs indiscriminately. at the chancery bar there is a peculiar subdivision which has already been mentioned. having reached a certain degree of success and become a k. c., a barrister may "take his seat" in a particular court as a "leader" by notifying the judge and informing the other k. c.'s who are already practising there. thereafter he can never go into another, except as a "special," a term which will be explained presently. for three pence, at any law stationer's, one can buy a list of the leaders in the six chancery courts, varying in number from three to five and aggregating twenty-five, and if a solicitor wishes a leader for his junior in any of these courts he must retain one out of the limited list available or pay the "special" fee. hence, these gentlemen sit like boys in school at their desks and try the cases in which they have been retained as they are reached in rotation. but even for a leader at the chancery bar, one more step is possible, a step which a barrister may take, or not, as he pleases, and that is: he may go "special." this means that he surrenders his position as a leader in a particular court and is open to accept retainers in any chancery court; but his retainer, in addition to the regular brief fee, must be at least fifty guineas or multiples of that sum, and his subsequent fees in like proportion. the printed list also shows the names of these "specials," at present only five in number. the list of leaders and specials in reads as follows: a list of his majesty's counsel usually practicing in the chancery division of the high court of justice. --------------- the following counsel are not attached to any court, and require a special fee:-- mr. levett: mr. astbury: mr. upjohn: mr. buckmaster. --------------- counsel who have attached themselves to particular courts, arranged in the order in which they are entitled to move:-- --------------------+-------------+------------------------+----------- mr. justice joyce | date of | mr. justice warrington | date of lord chancellor's | ap'ointment | chancery court | ap'ointment court | | | --------------------+-------------+------------------------+----------- mr. t. r. hughes | | mr. henry terrell | mr. r. f. norton | | mr. t. h. carson | mr. r. younger | | mr. george cave | | | mr. a. c. clauson | --------------------+-------------+------------------------+------------ mr. justice eve | date of |mr. justice swinfen eady| date of | ap'ointment | chancery court | ap'ointment --------------------+-------------+------------------------+------------ mr. p. o. lawrence | | mr. w. d. rawlins | mr. ingpen | | mr. e. c. macnaghten | mr. dudley stewart- | | mr. n. micklem | smith | | | mr. a. h. jessel | | mr. frank russell | mr. e. clayton | | | ====================+=============+========================+============ mr. justice melville| date of | mr. justice parker | date of | ap'ointment | chancery court | ap'ointment --------------------+-------------+------------------------+------------ mr. bramwell davis | | mr. w. f. hamilton | mr. j. g. butcher | | mr. m. l. romer | mr. c. e. e. jenkins| | mr. e. w. martelli | mr. a. f. peterson | | mr. a. grant | mr. f. cassel | | mr. j. gatey | ====================+=============+========================+============ note--counsel attached to the above courts usually also practice before the judge to whom the companies winding-up matters are attached. printed and published by the solicitors' law stationery society, limited, . chancery lane, w. c., , walbrook, e. g., , victoria street, s. w. --------------- chancery forms of all kinds kept in stock. --------------- price threepence. [transcriber's note: in the original text, the section for m. justices melville and parker appears on the following page, across from the section for m. justices joyce and washington.] the dress of barristers is the same for the common law bar as for the chancery bar, but the details of both gown and wig signify to the initiated much as to the professional position of the wearer. the difference between the junior's stuff gown and the leader's silk one has already been referred to, but it is not true that a barrister having "taken silk," that is, having become a k. c. or a leader, always wears a silk gown, for, if he be in mourning, he again wears a cotton gown, as he did in his junior days, but, to preserve his distinction, he wears "weepers"--a six-inch deep, white lawn cuff, the name and utility of which originated before handkerchiefs were invented. moreover, when in mourning his "bands"--the untied white lawn cravat, hanging straight down, which all barristers wear--have three lines of stitching instead of two. under his gown, a k. c. wears a "court coat," cut not unlike an ordinary morning coat, though with hooks and eyes instead of buttons, while the junior wears the conventional frock coat. on a hot day, a junior wearing a seersucker jacket and carelessly allowing his gown to disclose it, may receive an admonition from the court, whispered in his ear by an officer. wigs, which were introduced in the courts in , and have long survived their disappearance in private life, were formerly made of human hair which became heavy and unsanitary with repeated greasing. they required frequent curling and dusting with powder which had a tendency to settle on the gown and clothing. about , a wig-maker, who may be regarded as a benefactor of the profession, invented the modern article, composed of horse hair, in the proportion of five white strands to one black; this is so made as to retain its curl without grease, and with but infrequent recurling, and it requires no powder. the wig worn by the barrister in his daily practice has already been described, but, when arguing a case in the house of lords he has recourse to an extraordinary head-dress, which is precisely the shape of a half-bushel basket with the front cut away to afford him light and air. this, hanging below the shoulders, has an advantage over the lord chancellor's wig in being more roomy, so that the barrister's hand can steal inside of it if he have occasion to scratch his head at a knotty problem, whereas his lordship, in executing the same manoeuvre, inevitably sets his awry and thereby adds to its ludicrous effect. to the unaccustomed eye, the wig, at first, is a complete disguise. individuality is lost in the overpowering absurdity and similarity of the heads. then, too, there is an involuntary association of gray hair with years, making the bar seem composed exclusively of old gentlemen of identical pattern. the observer is somewhat in the position of the indian chiefs, who, having been taken to a number of eastern cities in order to be impressed with the white man's power, recognized no difference between them--although they could have detected, in the deepest forest, traces of the passage of a single human being--and reported upon returning to their tribes that there was only one town, washington, and that they were merely trundled around in sleeping cars and repeatedly brought back to the same place. by degrees, however, differences between individuals emerge from this first impression. blond hair above a sunburned neck, peeping between the tails of a queue, suggests the trout stream and cricket field; or an ample cheek, not quite masked by the bushel-basket-shaped wig, together with a rotundity hardly concealed by the folds of a gown, remind one that port still passes repeatedly around english tables after dinner. but it must be said that, while the wig may add to the uniformity and perhaps to the dignity--despite a certain grotesqueness--of a court room, yet it largely extinguishes individuality and obliterates to some extent personal appearance as a factor in estimating a man; and this is a factor of no small importance, for every one, in describing another, begins with his appearance--a man's presence, pose, features and dress all go to produce prepossessions which are subject to revision upon further acquaintance. one thing is certain, the wig is an anachronism which will never be imported into america. for the bar to adopt the gown (as has been largely done by the bench throughout the country) would be quite another matter and it seems to work well in canada. this would have the advantage of distinguishing counsel from the crowd in a court room, of covering over inappropriateness of dress and it might promote the impressiveness of the tribunal. the bag of an english barrister is also an important part of his outfit. it is very large, capable of holding his wig and gown, as well as his briefs, and suggests a clothes bag. it is not carried by the barrister himself, but it is borne by his clerk. its color has a deep significance. every young barrister starts with a _blue_ bag and can only acquire a _red_ one under certain conditions. as devil, and as junior, it is not considered _infra dig._ to carry his own bag and he has ever before him the possibility of possessing a red bag. at last he succeeds in impressing a venerable k. c. by his industry and skill in some case, whereupon one morning the clerk of the k. c. appears at the junior's chambers bearing a _red_ bag with his initials embroidered upon it--a gift from the great k. c. thereafter he can use that coveted color and he may be pardoned for having his clerk follow him closely for awhile so there may be no mistake as to the ownership. custom requires him to tip the k. c.'s clerk with a guinea and further exacts that the clerk shall pay for the bag, which costs nine shillings and sixpence, thus, by this curious piece of economy, the clerk nets the sum of eleven shillings and sixpence and the k. c. is at no expense. chapter v solicitors line which separates them from the bar--solicitor a business man--family solicitors--great city firms of solicitors--the number of solicitors in england and wales--tendency toward abolishing the distinction between barrister and solicitor-- solicitors wear no distinctive dress except in county courts--solicitors' bags. the line which separates solicitors from the bar--the barristers--is difficult for an american to fully appreciate, for in our country it does not exist. the solicitor, or attorney, is a man of law business--not an advocate. a person contemplating litigation must first go to a solicitor, who guides his conduct by advice in the preliminary stages, or occasionally retains a barrister to give a written opinion upon a concrete question of law. the solicitor conducts all the negotiations or threats which usually precede a lawsuit and if compromise is impossible he brings a suit and retains a junior barrister by handing him a brief, which consists of a written narrative of the controversy, with copies of all papers and correspondence--in short, the facts of the case--and which states on its back the amount of the barrister's fee. the brief is engrossed or type-written on large-sized paper with very broad margins for notes, and is folded only once and lengthwise so as to make a packet fifteen by four inches. all englishmen of substance, and all firms and corporations, have their regular solicitors and the relation is frequently handed down from generation to generation. it is, of course, unusual except in large corporations to have a permanent barrister, because the solicitor selects one from time to time, as the occasion requires, and the client is rarely even consulted in the choice. when an englishman speaks of his lawyer, he always means his solicitor and if he wishes to impress his auditor with the seriousness of his legal troubles, he adds that his lawyer has been obliged to take the advice of counsel--perhaps of a k. c. hence, the solicitor, unlike the barrister, is not ambitious for fame, nor does he worry because he can not become the attorney-general or a judge; his mind is intent upon the pounds, shillings and pence of his calling. he may seek business, which the barrister can not do, and he is something of a banker, often a promoter. some solicitors, especially those practicing at liverpool, are admiralty men, others are adepts in the organization of corporations and in litigation arising concerning them and there are many other specialties. some are men of the highest grade--particularly those employed by big companies or by families with large estates. the venerable family solicitor of the novel and stage--that custodian of private estates and secrets who appears in all domestic crises, warning the wayward son, comforting the daughter whose affections are misplaced and succoring the gambling father, is sufficiently familiar. the worldly experience, which this kindly old gentleman brings from his musty office, is invaluable to his clients. the large city firms of solicitors, on the other hand, occupy spacious suites of offices and maintain elaborate organizations like modern banks, with scores of clerks distributed in many departments, whose duties are so specialized that no one of them has much grasp of the business as a whole. the name of such a firm, appearing as sponsor for an extensive financial project, carries weight in the business world and its heads enjoy generous incomes, besides being men of much importance upon whom the honor of knighthood is sometimes conferred. in all england and wales only about , solicitors took out annual certificates last year. this indicates the number of offices and does not include clerks (many of whom have been admitted to practice as solicitors), nor those who, for one reason or another, do not practice. instead of being concentrated, like the barristers, in the inns of court in london, solicitors are scattered all over the town and throughout the kingdom itself. some, especially in the minor towns or poorer quarters of london, are in a small way of business and must earn rather a precarious living. others are of a still lower class and seek business of a more or less disreputable character by devious methods, but all are supposed to have been carefully educated in the law and are answerable to their society and to the courts for questionable practices. the division of the profession between the solicitors and the bar is no doubt a survival in modern, or socialistic, england of aristocratic conditions which it is the tendency of the times to weaken, if not eventually to abolish. it is somewhat hard upon the solicitor of real ability to be confined to a limited field and to feel that, no matter how great his powers and acquirements, it is impossible to rise to the best position in his profession without abandoning his branch and beginning all over again in the barrister's ranks. in associating with solicitors, one can not fail to be struck by their attitude towards barristers, as a class, which is hardly flattering to the latter; they frequently allude somewhat lightly to them as though they were useless ornaments and as if such a division of the profession were rather unnecessary. upon asking whether the distinction exists in america, they receive the information that it does not with evident approval. the advantages, however, of the separation of the functions of the solicitor from those of the barrister are distinctly felt in the superior skill, as trial lawyers, developed by the restriction of court practice to the limited membership of the bar, which would hardly exist if the practice were distributed over the whole field of both branches of the profession. then, too, the small number of persons composing the bar enables greater control by the benchers over their professional conduct, and helps to maintain a high standard of ethics and the feeling of _esprit de corps_. moreover, the bar is not distracted from the science, by contact with the business, of the law and it is saved from the contaminating effect of participation in the sordid details of litigation. at the same time, this very condition may be calculated to develop in the average barrister, as distinguished from one of real ability, an attitude approaching dilettanteism. if the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the solicitors' branch upon the bar. already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. the more this progresses, the greater will be the number of solicitors who will become known as court practitioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed. while such is the drift in england, there is at the same time a tendency in america to approach english conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business the science, by contact with the business, of the law and it is saved from the contaminating effect of participation in the sordid details of litigation. at the same time, this very condition may be calculated to develop in the average barrister, as distinguished from one of real ability, an attitude approaching dilettanteism. if the division of the profession ever ceases to exist, the change will no doubt come about by the gradual encroachment of the solicitors' branch upon the bar. already solicitors possess the right of audience in the county courts, the limit of whose jurisdiction is constantly being increased, with the result of developing a species of solicitor-advocate, whose functions are very similar to those of the barrister. the more this progresses, the greater will be the number of solicitors who will become known as court practitioners, and whose services will be sought by the public and even by other solicitors, providing an existing act forbidding the latter is repealed. while such is the drift in england, there is at the same time a tendency in america to approach english conditions in the evolution of the law firm composed of lawyers of whom some are known as distinctively trial lawyers, while the other members devote themselves to the business of the law, and indeed one now occasionally hears of such partnerships designating one of their number as "counsel" to the firm--which is, perhaps, an affectation. solicitors often become barristers--sometimes eminent ones, for they have an opportunity to study other barristers' methods, and have acquired a knowledge of affairs. of course they must first retire as solicitors and enter one of the inns for study. the late lord chief justice of england began his career as an irish solicitor. solicitors wear no distinctive dress (except a gown when in the county court, as will be explained hereafter) but attire themselves in the conventional frock or morning coat and silk hat which is indispensable for all london business men. they all, however, carry long and shallow leather bags, the shape of folded briefs, which are usually made of polished patent leather. chapter vi business and fees influential friends of barrister--junior's and leader's brief fees--fees of common law and chancery barristers--barrister partnerships not allowed--english litigation less important than american--clerks of barristers and solicitors haggle over fees--solicitors' fees. an american lawyer will be curious concerning two things, about which he will get little reliable information, viz., how legal business comes and what are its rewards. the barrister supplements his reading, sometimes by practical service for a short time in a solicitor's office and nearly always by the deviling before described, and thus, in theory--and according to the traditions of the bar--may pass years awaiting recognition. finally, briefs begin to arrive which are received by his clerk with the accompanying fee, in gold, as to which the barrister is presumed to be quite oblivious. this, however, is not always the experience of the modern barrister, who may have some relative occupying the position of chairman of a railway, or of a large city company, the solicitors of which will be apt to think of this particular man when retaining counsel. in such fashion and other ways, while he can not receive business directly from an influential friend or relative, but only through the medium of a solicitor, yet such connections are often definitely felt in giving the young barrister a start. his eventual success, however, as in every other career, depends upon how well he avails himself of his opportunities. when briefed as a junior, without a leader, in a small action, his fee may be " & ," meaning three guineas for the trial and one guinea for the "conference" with the solicitor. when briefed with a leader, however, his fee, which is always endorsed on the brief, may read: "mr. j. jones guineas guinea guineas "with you sir j. black, k. c." the leader's brief will be endorsed: "sir j. black, k. c. guineas guineas guineas "with you mr. j. jones." the fee is not always sent by the solicitor with the brief, but a running account, with settlements at intervals, is not uncommon. contingent fees are absolutely prohibited, the barrister gets his compensation, or is credited with it, irrespective of the result. all speculation as to professional earnings of a barrister must be vague, for there can be little accurate knowledge on such a subject. chancery men seem to earn much less than common law barristers and their business is of a quieter and less conspicuous character. at the fireside in chambers in lincoln's inn, if the conversation drifts to fees, one may hear a discussion as to how many earn £ , , and a doubt is expressed whether more than three men average £ , , but the gossips will add that they do not really know the facts. the fees of common law men, while larger, are equally a matter of guess-work. one hears of the large earnings of judah p. benjamin a generation ago, and r. barry o'brien, in his life of sir charles russell, quotes from his fee book yearly showing that the year he was called to the bar he took only £ , while thirty-five years later--in --just before he was elevated to the bench, his fees for the year were £ , . for the ten years preceding he had averaged £ , , and, for the ten years before that, £ , . the biographer of sir frank lockwood, a successful barrister, relates that he earned £ his first year and that this increased to £ , in his eighth year, but he was glad to accept during his twenty-second year the solicitor generalship, paying about £ , . the attorney general, who, although his office is a political one, is generally a leading barrister, receives a salary of £ , and his fees are about £ , more. the clerk of a one time high judicial officer now dead, is authority for the statement that the year before he went upon the bench his fees aggregated , guineas. it seems to be the general opinion of those well informed that the most distinguished leader may, at the height of his career, take , to , guineas. all such estimates must, however, be received with the greatest reserve, and no one could undertake to vouch for them. barristers' fees are, of course, for purely professional services and do not come within the same category as the immense sums one occasionally hears of being received by american lawyers--not, however, as a rule, for real professional services in litigation, but for success in promoting, merging or reorganizing business enterprises. the fees of english barristers are practically all gain, as there are no office expenses worth mentioning. no suit can be brought by a barrister to compel the payment of a fee although the services have been performed, nor is he liable for negligence or incompetence in his professional work. partnerships, which are common between solicitors, are unknown to barristers and anything approaching them would be the subject of severe discipline. this is a fundamental law of the profession, never questioned, as to which the rulings of the governing body of the bar (some of which will be quoted in a later chapter) relate only to the application of the principle to different circumstances. in order to appreciate the abhorrence of partnerships, it is necessary to bear in mind the fact that the great science of the law is to the barrister strictly a profession, having no affinity to a business or a trade. no barrister can have the slightest personal concern in the interests which he advocates, his fee being never contingent, nor is he ever permanently retained by salary or otherwise. he is a purely intellectual ally of the court in the consideration of questions, more or less abstract, as to which he merely supports the view he has undertaken to urge. upon the whole, professional rewards do not strike an american as particularly large, remembering that the recipients are at the top of the profession in london, which means the kingdom. one can not escape the impression that litigation in england deals with minor matters as compared with that of america. there are no american data for comparison with the admirable judicial statistics of england, but, in listening to the daily routine of the london courts, in the tight little island with its dense population and well-settled rights, there seems to be a complete absence of those far-reaching litigations which arise in america, involving enormous sums, or conflicting questions concerning a whole continent, with its railroads and rivers extending as avenues of commerce for thousands of miles and with ramifications of trade running into many states, each with its separate sovereignty. one circumstance rather indicates that the popular estimate of fees is above the truth, and this is the acceptance of judgeships by the most eminent barristers; still, judicial salaries in england are high--£ , at the least--not to speak of the compensation of the chief justice and lord chancellor, which are more. solicitors' clerks occasionally haggle and bargain with barristers' clerks in an undignified manner--but of this their masters are supposed to be in ignorance. and it seems that the matter of fees is sometimes abused. in the case of a celebrated barrister, now dead, it is whispered that his clerk would receive a retainer of guineas on behalf of the k. c. who would be missing upon the cause being reached. the clerk would then tell the solicitor's clerk that the k. c. was overcrowded, and he did not believe he could get him into court unless guineas were added to the fee. after grumbling and protesting, the addition would be forthcoming, whereupon the clerk would readily find the k. c. strolling in the temple gardens, and fetch him to court. this, however, was not regarded as honest and the story itself is doubted. in the case of solicitors, the acquirement of a practice is apparently much like establishing a mercantile business. the majority doubtless begin as clerks in existing firms, and, if men of ability, either rise in the firm or form their own associations. they are not hampered by the same considerations of delicacy and etiquette as the barrister, but may seek employment, although, of course, the one guarantee of real success is the honest and efficient handling of affairs with which they may be entrusted. the profits of a large firm of solicitors are very great. much of the money, however, is made in the transaction of business which is not of the profession at all, such as the promotion of enterprises, the flotation of companies, just as there is a class of american lawyers pursuing the same lines. a solicitor's compensation, called "solicitor's costs," is not a matter of discretion, but is regulated by a recognized scale, although he may make a special agreement with his client in advance, but it must be in writing and is subject to review by a master as to its reasonableness. for an appearance in court the charge runs from s. d. to £ . s. d., according to the nature of the business and the time consumed. a charge reading, "to crossing the street to speak to you and finding it was another man, s. d.," has been ruled out. a solicitor's compensation for services other than litigation is obtained by rendering to the client a regular bill, minutely itemized. the writing of a post card will justify a charge of three shillings and sixpence, but, for a letter the demand may be five shillings and sixpence with a half-penny for the stamp. each interview at the office, and every visit to the client's town or country house, is charged for; while incidental outlays and expenses are carefully detailed, including the fees paid the barrister for his opinions, for the drafting of pleadings and for appearance in court. if the matter has involved proceedings in court in which the solicitor's client has been successful, then various costs are allowed as part of the judgment to be recovered from the opposite side, although they do not necessarily equal the charges to be paid by the client, as will be explained when dealing with the subject of costs. solicitors, unlike barristers, may sue for their compensation and are liable for negligence, although not for mistaken opinions upon questions of law. chapter vii discipline of the bar and of solicitors the general council of the bar--the statutory committee of the incorporated law society --rulings on various matters--lapses from correct standards. the discipline of the bar--the maintenance of correct standards of professional conduct--is everywhere a difficult problem. in england, with the experience of centuries, good results are obtained, upon the whole, considering that human nature is alike the world over. the general council of the bar governs the bar; the statutory committee of the incorporated law society governs the solicitors. these two bodies occasionally confer together--or rather exchange views--in matters concerning the relations of the two branches of the profession. the general council of the bar, having heard a complaint against a barrister, reports its findings with recommendations--perhaps of disbarment in exceptionally serious cases--to the benchers of the barrister's inn. they alone have the power to act and nearly always follow the recommendation. probably little difference exists in their deliberations, methods and actions in serious cases and that of corresponding disciplinary agencies in the united states, whether called a bar committee or a committee of censors. disbarment is an extreme penalty in both countries, inflicted only for moral turpitude amounting usually to crime. but the general council of the english bar renders an even greater service to the profession in establishing standards of professional conduct, not only in respect of morality, but in questions of propriety and good taste. this is accomplished by resolutions upon submitted questions which seem to fall into two classes: those which are found contrary to a "rule of the profession" and those which are pronounced to be "undesirable practices". these rulings (without names or other particulars which might lead to identification) are all reported in the "white book", an annual book of practice in general use, and constitute a code of ethics and etiquette. an examination of these rulings shows very few findings upon rudimentary morals; it apparently is taken for granted that lawyers are familiar with such commandments as "thou shalt not steal." they deal chiefly with the more refined questions of professional conduct which often present difficulties even to men of honest instincts but who lack natural delicacy or experience. an example of a course contrary to a rule of the profession is the following: "_county court judge's sons_: it should be recognized as a 'rule of the profession' (the quotation marks are the council's) that no barrister should habitually practice in any county court of which his father, or any near relative, is the judge." an. st. - , p. . it is not necessary to discuss whether this would be applicable in america. here the principle is probably recognized in the larger cities by the best element, whereas in the country, with only one county judge, it would prevent a son's following his father's profession. the ruling merely illustrates that in england there is an authoritative body which could be asked to declare how the profession regards such a difficult question as, whether suitors should be obliged to see their cases won or lost by the arguments of a son addressed to his father, or whether the son should be excluded from the only court of his vicinity. that a kind of sporting magnanimity is desirable but not required by any 'rule of the profession', is shown in the following, which refers to revenue laws requiring receipts and other papers to be stamped in order to constitute evidence: "_stamps_: it is undesirable that counsel should object to the admissibility of any document upon the ground that it is not, or is insufficiently, stamped, unless such defect goes to the validity of such document. it is also undesirable that counsel should take part in any discussion that may arise in support of any objection taken on the ground aforesaid unless invited to do so by the court." an. st. - , p. . the next point has been the subject of judicial rulings in america to the same effect: "_damages_: _mentioning in court amount claimed_: there is a general understanding that it is irregular for plaintiff's counsel to mention during the trial the amount claimed by way of damages." an. st. - , p. . a series of rulings hold that a barrister occupying the office of town clerk, or clerk of any similar public body, "ought not" to practice at the bar and that it is "undesirable" for such an official to be called to the bar. (an. st. - , p. , - , p. , - , p. .) again it has been held that there is a generally understood "rule of the profession" that a barrister should not practice at quarter or petty sessions in the county of which he is a magistrate, but he may practice at the assizes for his county. (an. st. - , p. .) the following illustrates the aversion to anything approaching advertising: "_photographs in legal newspapers_: it is undesirable for members of the bar to furnish signed photographs of themselves for publication in legal newspapers." an. st. - , p. . likewise the following: "_names of counsel giving opinions: publication of_: the practice of certain newspapers publishing the names of counsel in connection with opinions printed in their columns has been altered to meet the wishes of the council." an. st. - , p. . this is a little obscure and furnishes no information as to what alteration was effected. the daily papers invariably print the names of all counsel and solicitors engaged in any reported litigation and the object of this ruling is probably to prevent indirect advertising by writing opinions upon current topics. in this connection it may be remarked that the law reports of the leading papers are far superior to similar reports in most american journals. the chief difference is that, instead of disjointed fragments throwing the sensational into disproportionate relief and thus conveying little idea of the whole, the reports are really accurate and symmetrical, the drama, however, losing none of its interest. the perusal of these reports, instead of leaving a desire to know what really occurred, gives a feeling of being fully informed. brevity is served by admirable condensation of the evidence, arguments and rulings, and by the use of the third person in narration. by occasional recourse, too, to the first personal pronoun, and a verbatim report of graphic passages, the important and interesting phases of the case are emphasized. these reports indicate that the authors are men trained both in the law and in writing. so well done are those of the london _times_ that they are generally used in court for the citation of recent decisions, and, when collected and issued periodically, are universally employed for reference. the english courts scrupulously guard against the trial of cases in the newspapers rather than in court. in the recent trial of dr. crippen for murder, the proprietor of a provincial newspaper which, in printing the news of the arrest, had speculated upon the probability of crippen's guilt, was summoned before the court after the trial had been concluded and was fined £ on the ground that the article was calculated to interfere with the cause of justice. a prominent london daily newspaper was likewise fined £ for relating that crippen had confessed his guilt, while a london evening paper was fined a like sum because, during the course of the trial, it published a statement not contained in the evidence. many of the resolutions of the general council of the bar deal with the rights and privileges of the profession. one is thus reminded that the inns of court, which came into existence with the ancient london trades guilds, were founded originally for a like purpose--the protection of a particular occupation. during the established vacations many junior barristers take only a few days' holiday and particularly on the chancery side, quite a number of them and also a few k. c.'s are at work in their chambers or attend the weekly sittings of the vacation court during the greater part of the long vacation. it appears, however, that some young devil once attempted to obtain a ruling that another devil should not devil in vacation, but the council declined to sustain his contention as follows: "_devilling in vacation_: there is no 'rule of the profession' against it." an. st. - , p. . a few years ago, there was a newspaper agitation against the long vacation which had always extended from august th to the first monday of november. the result of the discussion was to shorten it, by making it begin--as it now does--on august st and end on the th of october. there are also liberal vacations at christmas, easter and whitsuntide. one resolution of the council illustrates the fact, already referred to, that barristers are not nearly so intimately identified with litigation conducted by them as are american lawyers and that their cases are more or less like abstract propositions placed in their hands to be advocated. the resolution is as follows: "_briefs, obligation to accept_: the general rule is that a barrister is bound to accept any brief, in the courts in which he professes to practice, at a proper professional fee. special circumstances may justify his refusal to accept a particular brief. any complaint as to the propriety of such refusal, if brought to the attention of the council and by them considered reasonable, would be transmitted by them to the benchers of the inn of which the barrister is a member." an. st. - , p. . conversely; a barrister can not offer inducements for briefs, as was held in the following: "_commissions or presents from barristers_: any barrister who gave any commission or present to any one introducing business to him would be guilty of most unprofessional conduct which would, if detected, imperil his position as a barrister." an. st. - , p. . again: "_fees to barrister's clerk_: the clerk of mr. a. informed the clerk of mr. b. that the latter (mr. b.) had received a brief on circuit because he had recommended the solicitor to mr. b. (as was the fact) and suggested that mr. b. should give him the clerk's fees which he would have received on it, had mr. a. been on circuit and so able to accept the brief. mr. b., considering that such a practice might lead to serious abuses, if it were countenanced, requested a pronouncement of the council on the matter. the council expressed the opinion that the practice referred to is absolutely improper." an. st. - vii, p. . a number of rulings serve to define the limitations or partial exceptions to the rule that a barrister's clients are exclusively solicitors and that he must never be in direct contact with litigants themselves. for example: "_non-contentious business_: there is no rule against a barrister advising in non-contentious business without the intervention of a solicitor, but it is an undesirable practice. if fees should be taken for such opinion, such fees must be marked and paid in the usual way, and on the ordinary scale, not by way of annual payment or salary." an. st. - , p. . also: "_counsel advising on case submitted by colonial advocates_: a counsel does not commit any breach of etiquette in advising, without the intervention of an english solicitor, on a case submitted to him by a colonial advocate in a colony where the professions of barrister and solicitor are combined." an. st. - , p. . on the other hand, it was held that a barrister "should not" appear as spokesman for a deputation of contractors waiting upon a public body, nor on behalf of an application for a license, without the intervention of a solicitor. the preservation of the barrister's dignity in his relations with the solicitor seems to have induced this: "_conferences at a solicitor's office_: the council have expressed an opinion that as a general rule it is contrary to etiquette and improper for a barrister to attend conferences at a solicitor's office, but that under exceptional circumstances the rule may be departed from." an. st. - , p. . the complicated subject of one barrister assisting another, usually in the capacity of a devil, while avoiding quasi-partnerships, has been the occasion for frequent resolutions by the general council of the bar, of which the following are a few: "it is not permissible, or in accordance with professional etiquette, for a counsel to hand over his brief to another counsel to represent him in court as if the latter counsel had himself been briefed; unless the client consents to this course being taken.... in the chancery division it is not the practice for one junior to hold a brief (other than a mere formal one) for another and the same is true of king's counsel." "in the king's bench division, in the case of juniors, it is not uncommon for one counsel to devil a brief for another: but in the case of king's counsel it is very seldom done." "there is no rule or settled practice governing the remuneration for devilling, or assistance given by one counsel to another, in the cases above referred to." "with regard to juniors, it is a common practice in the chancery division for the one counsel to remunerate the other by paying him an agreed proportion, generally one half, of the fees the former receives in respect of opinions or drafting. in the king's bench division, remuneration for devilling of briefs or assistance in drafting opinions is not common. in both divisions occasionally such work is remunerated either by casual or periodical payments." "an arrangement of this kind is also not unfrequently made in the case of a king's counsel who desires regular assistance from a junior in the perusal and noting of his briefs." "so far as the council are aware, there is no practice to pay any remuneration in the rare cases where one king's counsel holds a brief for another." "in conclusion the council desires to say that no practice in the least resembling a partnership is permissible or (so far as they know) practiced between counsel: and they are of opinion that the etiquette of the profession forbids the handing over of work by one counsel to another, outside of the conditions above stated." an. st. - , p. . a large number of resolutions deal with the subject of fees and refreshers. thus, it is held that while the council is not a debt-collecting body, yet, where it is "in the interest of the whole profession" that solicitors who default in payment should be "exposed and punished" assistance may be given by the council to a barrister in taking proceedings before the statutory committee of the law society--the solicitor's governing body. (an. st. - , p. .) again it was resolved that a junior chancery man was not precluded by the etiquette of the bar from accepting a refresher less in amount than two-thirds or three-fifths of the refresher accepted by the leader. (an. st. - , p. .) somewhat in the same line is the following: "a king's counsel should refuse all drafting work and written opinions on evidence as being appropriate to juniors only; but a king's counsel is at liberty to settle any such drafting and advice on evidence in consultation with a junior. a king's counsel in accordance with a long-standing 'rule of the profession' cannot hold a brief for the plaintiff on the hearing of a civil cause in the high court, court of appeals or the house of lords, without a junior. it is the usual practice for a king's counsel to insist on having a junior when appearing for the defendant in like cases and when appearing for the prosecution or the defence on trials of criminal indictments". an. st. - , p. . the following is more general than most of the resolutions as it states a fundamental rule rather than its refinements: "_junior and leader._ _proportion of fees._ _refreshers_:--by long-established and well-settled custom a junior is entitled to a fee of from three-fifths to two-thirds of the leader's fee, and, although there is no rigid rule of professional etiquette which prevents him from accepting a brief marked with a fee bearing a less proportion to his leader's fee, it is in accordance with the practice of the profession that he should refuse to do so in the absence of special circumstances affecting the particular case and that he should be supported by his leader in such action. an. st. - , p. . (the council of incorporated law society dissent from the view expressed in this resolution). the same rule applies to refresher". an. st. - , p. . the necessity for a barrister upon accepting a brief in a circuit of which he is not a member, to see that the solicitor retain a junior belonging to the circuit, which will later be explained, is recognized in the following resolution: "_special fees at assizes_:--the universal practice of the circuits since june (when the matter was considered by a joint committee of all the circuits) is that a counsel going special on to one circuit from another circuit should, if a king's counsel, have a special fee of guineas in addition to the brief fee, and that one member of the circuit should be employed on the side on which the counsel comes special." an. st. - , p. . a resolution provides for the settlement of disputes between barristers and solicitors by their entering into an agreement to leave the questions to arbitration, the board to be composed of the chairman of the general council of the bar (or some member of that council to be named by him) and the president of the incorporated law society (or some member thereof to be selected by him). an. st. - , p. . the following is a curious resolution: "_barrister recommending another barrister as his leader or junior_: a barrister ought not to recommend another as his leader or junior. and such questions as, who is the best man for a witness action in such a court? which leader is _persona grata_ in such a court? do you get on all right with x--as your leader? are improper questions and should not be answered." an. st. - , p. . illustrative of this ruling was a recent investigation of the charge that a barrister, about to leave town, had recommended another barrister to a solicitor--the objections being that such an act would not only violate the etiquette which forbids any barrister to laud or decry another barrister to a solicitor, but also that it might savor of co-operation in the nature of a partnership which would never be tolerated. the defence was successful, however, in showing that they were old eton schoolmates and the solicitor knew them equally well. the above extracts show how broad in scope and minute in detail are these authoritative rulings on every phase of professional life and daily practice in england. many of them would be totally inapplicable to american conditions, and, beyond affording a glimpse of peculiar customs and an elaborate etiquette, possess little value here. they do, however, show that the experience of the best bar in the world justifies the existence of such a body ready to declare the standards of professional propriety. it should not be inferred that in england there is no lapse from such standards. it requires some diligence to discover individual shortcomings, but inquiry will develop that even "ambulance chasing" is not unknown--although greatly reprehended and despised. if the american observer, on watching the trial of an action, perhaps against an omnibus company for personal injuries, will cautiously comment upon the array of solicitors and counsel representing a plaintiff apparently not possessed of a sixpence, and express wonder that he is able to afford it, the information will be forthcoming that some solicitor's clerk was probably in a neighboring "pooblic" and, hearing of an accident, had followed the injured man, perhaps to the hospital, and got the case for his master, whose remuneration would depend upon the result. pressing the inquiry further as to whether the solicitor advances the barrister's fees, it will reluctantly be admitted that some barristers have relations with solicitors that should not be looked into too closely--in other words that their fees are contingent. but it will also be added that they are taking great risks of exposure. any one who has sat on a bar committee, or on a committee of censors, in america must have been struck by the frequent instances where practitioners have fallen into error from sheer ignorance, due to inexperience or to the fact that they had not been born and bred to the best traditions. this is especially true in these days when law schools are grinding out members of the bar who have had no real professional preceptors. as disbarment or suspension is too severe a penalty, such lapses pass unreproved and the standards sink, a result much more deplorable than the failure of individual discipline. many a young lawyer would be induced to mend his ways if privately and fraternally informed of professional disapproval and some would be glad to seek the judgment of such a body if it could be had without exposing names or particulars. in this way, too, a body of rulings on the professional proprieties applicable to american conditions would be steadily forced upon the attention of the whole profession, instead of being locked in the breasts of the more reputable members to govern merely their own conduct. chapter viii the civil courts the general system--different courts--rules of practice made by lord chancellor--juries, common and special--judges and how appointed--judges' pay--costs--court notes--some difference in english and american methods. the general system of the english courts may be indicated without detailing the exact limitations of jurisdiction which would be too technical for present purposes. prior to there were a large number of courts with various titles, which had grown up through centuries of custom and legislation. but they were nearly all abolished by an act of parliament, or rather their functions were merged into the present far simpler system. in this radical re-arrangement, however, two courts--the highest and the lowest--survived; the house of lords and the county courts remain as they were. thus came into being the supreme court of judicature, composed of two branches--the high court of justice and the court of appeal. the high court is the one of immediate interest because here are begun all litigations of every description, excepting the minor matters which go to the county courts, or, perhaps, to the registrar's court. the high court is separated into three parts known as the king's bench division, devoted to jury trials which constitute the great bulk of business, the chancery division, where equity suits are considered, and the probate, divorce and admiralty division which deals, as its name implies, with the estates of deceased persons, with divorce, and with marine matters. each of these three divisions has a chief; the lord chief justice of england presides over the king's bench division and the lord chancellor over the chancery division, while the head of the probate and admiralty division, enjoys no higher title than that of "president." the number of judges in the different divisions is fixed by legislation and is determined by the extent of the business in each. in every court, except appeal courts, the evidence is heard by a single judge--of course in a separate court room--with the assistance of a jury in the king's bench division, but, except in divorce cases, usually without any jury in the other tribunals which are equity courts. it was the evident intention of parliament to fuse equity and common law practice, but experience has not proved that this is very feasible, so that the line which separates the two is nearly as distinct as it ever was. nevertheless, a certain amount of progress has been made in this direction--probably all that would be wise--particularly in the admission of equitable defenses in common law actions and in the facility with which, on the other hand, an equity court is enabled to obtain the verdict of a jury upon disputed facts without the old and cumbersome method of remitting the whole case to a common law court for a trial upon a special issue. the rules of practice are established and can be changed by the lord chancellor with the approval of a majority of the judges. it is provided, however, that such changes must be submitted to parliament and that they become void if either house passes a resolution of veto within forty days. the consequences of this very sensible arrangement are that the vast improvements in practice which have so greatly facilitated and accelerated english litigation, have been effected by the courts and the bar of their own initiative without the necessity to rely upon the action of a legislative body largely incapable of dealing with such technical and important questions. this experience should be borne in mind in the present movement to lessen the law's delays in america, and the existing power of the courts should be utilized, or, if necessary, broadened, rather than permit congress and the legislatures to attempt to deal with details which they can not in the nature of things fully understand. it will be recalled that the executive head of the american government has not scrupled recently to designate our methods as, in some respects, "archaic and barbarous," and has directed attention to the present equity practice of the united states courts. in them, testimony upon disputed facts is still elicited by an examiner--a method long since abandoned in progressive communities. such an official, temporarily appointed by the court, possessing but limited power and often with little experience, merely presides, while a stenographer notes the oral evidence subsequently to be reproduced in typewriting or print. thereafter, in some instances, a master is appointed to consider the testimony and report his conclusions, while later the court itself does the same thing over again. all lawyers know how weak in effect is evidence when reduced to cold type, as compared with that which falls from the lips of living witnesses, and how faint and inaccurate are the impressions produced by the former upon the mind of a judge, no matter how industrious and able he may be. hence, in enlightened systems of jurisprudence, the witnesses are called directly before the tribunal which is to decide the facts upon their testimony--exactly as they would be brought before a jury. the power to bring about such a salutary change inheres in the supreme court of the united states which, by the simple promulgation of an order to that effect, without any further legislation, can forever abolish the obsolete system now in vogue. this was accomplished years ago in england and has also been brought about in some american states--such as pennsylvania, vermont and others--with the result that equity proceedings have been much shortened in duration and lightened in cost, to the infinite relief of court, counsel and litigants. in the king's bench division--the only court holding jury trials except the county courts--the jury of twelve men may be either a "common" jury or a "special" jury. common juries are composed of men having practically no property qualification, it being required only that they shall occupy realty the rental of which is equivalent to £ a year. the result is to exclude those merely who are practically homeless, as such a rental represents less, perhaps, than the hire of a single room. the requirements therefore for service on an ordinary jury would seem to be little more than that the juror should have a known place of residence. his compensation for services is but one shilling a day. special juries, on the other hand, which may be claimed as a right by either party and whose services are paid for by the litigants rather than by the government, receive one guinea a day and the members must occupy premises renting for not less than £ a year, or a farm worth £ yearly, or they may be bankers, merchants, or persons upon whom minor titles have been bestowed. the employment of special juries is increasing in frequency at the expense of ordinary juries and it seems that the facility to obtain them is also cutting down the number of trials which the law permits to be conducted by the judges without any jury at all, provided the parties so agree. the chancery division, as stated, is the tribunal for equity trials where juries are rarely employed, but the judge determines both the law and the facts. into this court therefore comes all the equity litigation of england, although, for very limited sums, there is a concurrent jurisdiction in the county courts. the separation which exists between practice in this court, and the barristers who practice therein, as compared with the common law courts, has already been described at length. the judges in the equity courts never wear gowns containing any colors except black. the probate, divorce and admiralty division of the high court of justice is, like the chancery division, a court of equity, as distinguished from a court of law, in which the trials are conducted by a judge without a jury. here are considered all matters concerning decedent's estates, but the chancery division has to do with the construction of wills and the distribution of property. divorces occupy much time of this court and furnish sensational material for english newspapers. they form an exception to the general rule in the probate, divorce and admiralty division in the presence of a jury and in the submission of the facts to them. the admiralty court is of course confined to maritime matters and the room is adorned by a gilt anchor fixed upon a shield hung upon the wall behind the presiding judge, who is assisted in the technical matters by two trinity masters--retired sea captains. the county courts number about , not confined to london but dotted all over england, the districts of which are much smaller than counties, notwithstanding they are called county courts. one judge suffices for a number of these courts which are grouped into circuits. in most courts the judge is allowed to decide both facts and law, but a jury of eight men can be had at the instance of either party. the jurisdiction is at present limited, in common law cases, to £ and, in equity actions, to £ ; while there is no jurisdiction whatever in the matters of divorce, libel or slander. in these courts, as will be explained later, barristers rarely appear but solicitors are allowed to act as advocates. the county courts were established in and, as mentioned, were not disturbed in the reorganization of the courts in , the idea being to bring the administration of justice closer to the people's homes and to reduce its cost. the county courts no doubt serve to relieve the high court of a great mass of petty litigation, and in that respect are extremely useful, if rather uninteresting. an appeal lies from the county court to the high court on points of law but it is not often exercised. for very small matters--chiefly the collection of trifling debts--the registrar's court, which is likewise not confined to london, performs useful functions which will hereafter be described more particularly. besides the courts above mentioned, the lord mayor's court in the city of london and the palatine court and court of passage, in the north of england, are local courts which transact a great deal of business. such, briefly, is the english arrangement of courts for the disposal of civil as distinguished from criminal business. the judges of all courts are appointed--not elected--and their terms of office are for life with provisions for retirement and pension. judicial salaries are much higher in england than in america. ordinary judges of the high court get £ , , the lords of appeal, £ , , the chief justice, £ , , and the lord chancellor, £ , . the appointing power--nominally the crown--is really the lord chancellor, who, unlike the lord chief justice and all the other judges of england, is a political incumbent changing with the government. it might be supposed from this fact that the lord chancellor would yield to a natural temptation in making judicial appointments and that his selections would constitute a distribution of political patronage. there appears to be nothing in the law to prevent this, and formerly judges were largely appointed for political considerations or by reason of personal or social influences. at present, however, the least observation will convince any one that the great majority of judicial appointments in england are made solely out of consideration for character and professional attainments. with few exceptions the judges appointed in modern times--no matter what party may have been in power--have been selected from amongst the leading barristers of the day, and a person who has been in the habit for years of frequenting the courts at intervals, is almost sure, when he misses an eminent barrister from the front row, to find him on the bench, if alive. while this is the general rule, it is true that in rare and exceptional cases one hears of the appointment of a judge who is regarded by the profession as not being well qualified and his selection is attributed to influence. the just admiration which americans entertain for the english judiciary as a body will in such instances not be reflected by the views of the english bar, with opportunities for observation at closer range. barristers will remark that a given judge is not a lawyer at all, but merely had the gift of gaining cases before juries, and that the political influence he acquired induced the government to give him an office for which he is ill equipped. and one may even hear the statement made concerning some judge, "i can not say he is venal; i can not say he can be bought for money; but he has naturally a dishonest mind and can not perceive the truth." a stranger is left to speculate how far such views may reflect some past grudge and he will probably come to the conclusion that the high standing of the english judiciary, in the opinion of all the world, is fully deserved, but that there are some few exceptions to this general excellence. costs play an important part in all english litigation. the tendency since the time of the stuarts has been constantly to increase them. by costs--as understood in england--is not meant the official fees payable to the court officers, but a sum which the unsuccessful party is condemned to pay to the successful party, the aim being to indemnify the side whom the event proves to have been in the right. if a litigant has incurred expense to obtain a judgment for a sum of money, then he must be reimbursed by the other side who occasioned his outlay by refusal to pay. on the other hand, if an unjust claim has been made against him, the claimant must repay his expenses in resisting it. part of these costs are taxed as the case proceeds. thus, if one party summon another before a master prior to trial, to obtain an order for the production of some document, the master imposes costs--say £ . s. d.--upon the party who refused to produce, or upon the party who, the master finds, has unwarrantably demanded the production. the theory here is to discourage unnecessary and harassing interlocutory proceedings. but the principal costs "await the event"--follow the course of the final judgment. they include an allowance for counsel fees, which, however, is not always as much as the amount paid by the litigants. for, if a litigant has indulged in the luxury of an unusual array of counsel, he must do so at his own expense, and the master allows only what he should have laid out in fees. thus, in a petty action, caused by some personal pique, the plaintiff may have insisted that his solicitor retain a k. c. at fifty guineas and a junior at thirty-five guineas, involving a total expense, with three guineas for the consultation, of eighty-eight guineas. the defendant, however, has been content with a junior at " & ." if the plaintiff succeeds, the master will not allow him the eighty-eight guineas, but will decide that the more modest armament of the defendant would have been sufficient. costs are, upon the whole, very high. in an ordinary action to recover a moderate sum--say £ --the costs will generally amount to £ . in a recent action to recover £ , the balance of the purchase price of a motor car, costs were claimed of over £ , and actually allowed in a sum over £ . though this was exceptional, owing to the unreasonable stubbornness with which a just claim was resisted, and is by no means typical, yet it illustrates the possibilities of the system. in theory it seems reasonable that the party in the wrong should reimburse the party in the right for having vexatiously put him to expense in obtaining his due. in practice, however, the prospect of large costs may stimulate unjust suits by impecunious plaintiffs--unable themselves to respond in costs if defeated--against richer defendants vulnerable for whatever the chances of war may have in store for them. to this criticism english lawyers can only answer that if the plaintiff is unable to give security for costs, he may, in actions of tort, at least, be remitted to the county courts, where the costs are much lighter. this, however, is merely a mitigation of the evil. the general opinion seems to be that high costs discourage litigation. this may be true, but if they tend as well to obstruct the assertion of just rights and to stimulate fictitious claims, they are not to be desired by the profession or by the laity. a jury trial strikes one as more cut and dried in an english than in an american court. apparently, through the exchange of documents and otherwise, so much is known to the opposing counsel, solicitors and judge, that the element of surprise is largely eliminated. if all the litigants were honest, and the law were an exact science, this might conduce to a deliberate consideration of the questions involved. but what american advocate, having confronted a disingenuous witness with his own letter, utterly at variance with his testimony, could say that the cause of justice would have been better served if the witness had known that the letter was to be produced and had had the chance to regulate his evidence accordingly? [illustration: a jury trial] and what american lawyer would not feel that half the fun of life were gone? during the examination of witnesses, notwithstanding the rapidity of articulation, an american ear is struck by a certain lack of snap and by the great deliberation and long intervals between questions, which afford--especially for a dishonest witness under cross-examination--too much time for reflection. this impression may be due to differences in national temperament, and the examination may seem even rapid to an english listener. perhaps the chief cause of the hesitancy is the fact that the examiner has obtained his information at second hand, from his client the solicitor, or his junior or devil, and has to feel his way. a kind of confidence in the veracity of witnesses appears to pervade the court; and they are, indeed, as a rule, uncommonly frank. english barristers do not know their cases as well as american lawyers. they have not conducted the preliminaries, nor become acquainted with and advised the parties they are to represent; in other words, they have not "grown up with the case," and the facts are more like abstract propositions lately placed in their hands to be presented. it is not unusual during the trial, when some unexpected situation arises, to see evidence of a lack of familiarity with the circumstances which requires instant reference to the solicitor. the judges take a larger part in trials than in most american courts--a practice which has much to commend it, and which is increasing on this side of the water. an american lawyer will say, "i tried a case before judge so-and-so"--an english barrister says: "i conducted a case which lord so-and-so tried." the english judge restrains counsel, often examines the witnesses, and his influence is quite openly exerted to guide the jury and cause them to avoid absurdities and extremes. yet, the crucial questions of fact really to be determined--of which there are usually but one or two--are left absolutely to the jury's unfettered decision. objections to questions by opposing counsel, which cut so large a figure in an american trial, are rarely made. one is told that the barristers know the rules of evidence too well to ask improper questions and that they have too much respect for the court to hazard a rebuke. this is a very pretty, but hardly a satisfactory, explanation. observation of many trials gives the impression, rather, that great laxity prevails as to what is a proper question and that the party aggrieved by an objectionable one prefers to rely upon the reaction in his favor in the judge's mind, which will be shown when his influence comes to be exercised upon the jury. that this laxity prevails, the least experience will show. upon direct examination leading questions, which in america would bring a storm of objection, pass unnoticed, and even hearsay evidence is not unknown. the absence of the element of surprise in trials, may make those concerned more tolerant of counsel leading in a story known to all beforehand. the occasional element of hearsay is more difficult to explain unless, indeed, the french view gains in england, which justifies the admission of hearsay on the ground that in the most important questions of life--for example, in respect to the reputation of a man whom one contemplates trusting, or of a woman one thinks of marrying--men act exclusively upon hearsay and never upon direct evidence. but, of course, the law of evidence remains in england as it always has been: all that is here meant is that a degree of tolerance prevails and upon careful observation, the real cause of this tolerance will be found in the fact that both sides rely on the influence of the judge to eliminate from the minds of the jury the effect of evidence wrongly introduced. in england, mistress of the seas, with much the greatest merchant marine in the world, and with a large insular population living in close touch with the water, one finds, as might be expected, the best admiralty courts and bar in the world. the chart used by counsel in examining witnesses is pinned to a sloping table, among the barrister's benches and facing the court. in collision cases, small models of steamers and sailing vessels, as well as arrows to indicate winds and tides, are employed. all of these may be veered and shifted as the trial progresses, by means of thumb pins projecting beneath and capable of being pressed into the table which has a cork top. the admiralty trials are beautifully conducted and great familiarity with the affairs of the sea is displayed by the participants. models are very much used in all english courts. in land condemnation, nuisance injunction and accident cases, one frequently sees elaborate models reproducing the _locus in quo_. in actions concerning floods or other occurrences affecting considerable areas, models many square feet in size, reproducing the whole locality, are employed. the chief justice sits at nisi prius more often than upon appeal. it seems odd, during the trial of an action for damage caused by a flood due to the alleged improper construction of a bridge, to see the lord chief justice of england reaching far down with a long white, lath-like stick, into the solicitors' well to point out some feature of a model while interrogating a witness, and afterwards charging the jury stick in hand. it is still more strange to hear a judge, whose name is known the world over, gravely charging a jury as to the value, as evidence of identity, of a wart under the tail of a costermonger's donkey, the ownership of which is in dispute. yet, like every feature of an english court, it is eminently practical and free from form or affectation. the highly paid judges of the high court, sit in the smallest case; the idea seems to be that if a man desires to assert his rights, however insignificant, it is the duty of the government to afford him the opportunity. in the divisional court (an appeal court of limited jurisdiction) the lord chief justice of england and two famous colleagues did not grudge, upon a recent occasion, to hear an appeal involving nominally £ . s. d., payment on account having reduced the actual amount in controversy to £ . s. d. as the salaries of the occupants of the bench were not less than £ , a year--to say nothing of those of the court attendants, and the fees of the barristers and solicitors on both sides--the economy of such an employment of human effort is not apparent. some one, however, thought his rights had been invaded, which justified the waste, while the costs furnished a small stake upon the result. chapter ix courts of appeal the court of appeal--house of lords--divisional court--judicial committee of the privy council. the court of appeal--the last resort except for occasional cases which reach the house of lords and colonial appeals which go to the privy council--is, perhaps, the most perfectly working tribunal for the adjustment of conflicting rights which the wit of man in any age has devised. it is divided into two parts of three judges each, sitting simultaneously. the lord chancellor, the chief justice, or the master of the rolls presides over the respective parts and two associate lord justices of appeal compose the court. printed briefs are not used, though the advantage of this omission is not apparent. there is no bill of exceptions and the appeal is in name, as well as in fact, a motion for a judgment the reverse of that rendered below or, in the alternative, for a new trial, and everything which transpired is open to review. three barristers--the leader, junior and devil--together with the solicitors, are usually found on either side. the leader for the appellant opens, stating the case with great particularity, and reads from the evidence, documents and charge to the jury at great length. much time is thus spent because, for no discoverable reason, but probably due to ancient custom and lack of enterprise, the material is all in manuscript, often illegible and with occasional errors in the copies of the court and opposing counsel. the result is tedious and prosy and an american auditor gets an unfavorable impression at this stage of the argument; an impression, however, which is later dispelled. during the irksome opening, the court has been getting a grasp of the case, as becomes apparent when the argumentative stage is reached, for then there ensues a good tempered, courteous, informal debate between the several gentlemen, comprising the court and counsel. there is no "orating" and no declamation. the positions of the opponents are stated rapidly and smoothly. each, as enunciated, is taken up by one or more members of the court and distinct intimation given whether the court agrees with the speaker. in case it does, he may pass on. on the other hand, deferential dissent may warn him to strengthen his position, or a frank expression of doubt may be accompanied by a friendly invitation to the other side to contribute suggestions. at the conclusion, judgment is rendered orally, in nine cases out of ten, by the presiding lord justice, as the last speaker resumes his seat. then follow the opinions of the associate lord justices of appeal, concurring or dissenting, all expressed with the utmost frankness and spontaneity. these are taken down stenographically, and, after revision, sometimes by the judge himself, find their way into the books to become authorities. occasionally a "considered judgment" is reserved to be delivered within two or three days. the contrast presented by these methods (for the system is not essentially different) to the average american appeal is very great. in america, only the ablest men know by a kind of intuition upon what points their cases will turn, and one often hears a more or less stereotyped speech delivered to a court sitting like silent images, without the slightest intimation to the speaker whether he is wasting effort upon conceded points, or slighting those upon which he may discover by the written opinion--delivered months afterwards--he has won or lost. sometimes these friendly debates in an english court of appeal are witty, and they are often rather amusing. in a case recently argued, the defendant, a real estate owner, appealed from a judgment for £ . against him for wrongfully evicting his tenant, the plaintiff, and putting his sick wife and furniture out on the sidewalk in the rain. there was not much to be said in his favor upon the merits of his act, but his counsel argued that plaintiff's advocate had used inflammatory language in his speech to the jury. the judgment was immediately affirmed, the lord chancellor delivering an opinion to the effect that the control of the language used was a matter of discretion for the court below and could not be examined by the appellate court. both of the associate lord justices concurred, but one proceeded to give quite different reasons. with the preliminary words: "speaking only for myself, but not for his lordship," and with a slight inclination of his head towards the lord chancellor, he said he was for affirming for an entirely different reason--not because he could not examine the language used below, but rather that he had done so. he then proceeded to rehearse the brutal conduct of the defendant, and wound up by declaring, "if it had been my sick wife and my furniture which had been set out in the rain under the circumstances described, i do not think the english vocabulary contains the language i should wish my counsel to use in addressing the jury." this was received, as is not uncommon in england, but unheard of in america, with frequent laughter and even subdued applause, and the "london _times_" in its regular legal column the next day, reported the opinions and indicated the "laughter" and "loud laughter" in brackets. the opinions in the books, after being toned down by the reporter, often bear but faint resemblance to the actual utterances. in the house of lords appeals are equally informal and colloquial, an impression that is heightened by the absence of wigs and gowns, so far as the bench is concerned, and by the very casual manner in which the half dozen gentlemen composing the court are seated. the house itself is a large, oblong chamber with steep tiers of seats, upholstered in red leather, which rise high up the side walls and upon which the peers sit when legislating, but which are, of course, empty when the court only sit. at the far end is an unoccupied throne, while, at the near end, raised above the floor, is a kind of box from which counsel address the court. it is much like the rear platform of one of our street cars. counsel, of course, are in wig and gown, and if k. c.'s, in full bottomed wigs, but one may occasionally see a litigant actually arguing his own case _in propria persona_. on either side of the counsel's box is a very narrow standing place for reporters and the public. the court, consisting of the lord chancellor in gown and full bottomed wig, and perhaps of five judges, in ordinary clothing, sit at the floor level, and therefore considerably lower than counsel in the elevated box. they are not placed in a row nor behind any bench or table. on the contrary, though the presiding lord chancellor is vis-a-vis to the counsel box, the others sit where they please. sometimes this is on the front row of benches and sometimes on one of the higher tiers, with a foot propped up, perhaps, on the bench in front, and their thumbs hitched to the armholes of their waist-coats, and, necessarily, with their sides to the speaker. the members of the court often have portable tables in front of them, piled with books and papers. during the course of an argument they constantly debate with each other across the house, or walk over to one of their colleagues with some document or a book and talk of the case audibly and perfectly freely. one may hear one of them, in a salt and pepper suit, call across the floor to another lord of appeal who has interrupted a barrister's argument, "i say, can't you give the man a chance to say what he's got to say?" these little circumstances show that judges and counsel in the appellate courts of england behave as natural men without the slightest restraint, formality or self-consciousness. arguments are delivered with surprising rapidity of utterance, in a conversational tone, and with a crispness of articulation altogether delightful to the ear. the drawling style of speech sometimes heard on the stage as typical of a certain kind of englishman, seems to have disappeared in real life; it certainly is not to be found in the courts. an american stenographer reporting an english argument, would have to increase his accustomed speed at least one-third. the methods of the divisional court are the same as those of the court of appeal, but the low limit of its jurisdiction renders it of little interest. the judicial committee of the privy council--or, as it is colloquially described by the lawyers, "the privy council"--is doubtless the most interesting court in england because of the variety of the questions there considered and owing to the fact that, geographically, the litigations originate in nearly every quarter of the civilized world, for, as noted above, this is the court of last resort for all of the british colonies. it should not be confused with the privy council itself--a political adviser of the crown--for the judicial committee's functions are purely judicial and its personnel consists of the lord chancellor and the other law lords, a few paid members, and some ex-colonial judges. historically, indeed, it was but a sub-committee of the privy council, which circumstance gives the court its name and explains why its judgments always conclude with the phrase that the committee "humbly advises his majesty" to affirm or reverse the judgment rendered in the colony, instead of pronouncing the conclusion in direct language, as do other courts. this extraordinary body sits in a large second story chamber, not in the least resembling a court room, of a building in downing street, and rarely is there any audience other than the professional men whose business takes them there. of course, most of the colonies are equipped with their own court of appeals--usually called the supreme court--but, nevertheless, an appeal lies from their decisions to the privy council in certain circumstances, although to define exactly the scope of this jurisdiction would be too technical for present purposes. here are to be found, arguing their cases, lawyers from colonies in every corner of the globe in some of which the division of the profession into barristers and solicitors hardly exists, or at least, the line separating them is quite hazy--but they must all appear in wig and gown. bearing in mind the fact that the colonies of great britain are scattered over the whole world and that it has always been the policy, so far as possible, to accept the existing law of each and graft it upon the english law system, the diversity and broadness of this court's deliberations may be imagined. the succession to an indian principality, to be determined under the ancient law of that far eastern land, will be followed by a question of the legality of the adoption of a child in south africa, to be considered under the rules of dutch law. the next case will, perhaps, involve the effect upon an area much greater than that of all england, of the diversion of a river in the canadian north-west. and the court may next turn its attention to the problem whether the widow of a scotchman who left two wills--one intended to operate at home and the other to take effect in australia--can take her thirds against the will in scotland but accept the benefits of the other will as to property in australia. the court of appeal and the house of lords deal with domestic matters of the little island, which, however important the principles involved and however critical the issues to the litigants themselves, seem almost petty in comparison with the broad field of the privy council. little as the average man knows of it, and rarely as it figures in news of the day, no american lawyer can fail to perceive in this great court something of the tremendous scope of his own supreme court of the united states, to which tribunal only is the privy council secondary. chapter x masters: the time savers current hearings--minor issues threshed out. the numerous motions and interlocutory applications, supported by affidavits and urged by argument, which consume so much of the time of an american court, are disposed of in england by masters--competent barristers appointed by the courts, who are paid salaries of about £ , a year. at a certain hour the master takes his seat at a desk with a printed list of "applications without counsel" or "applications with counsel." he nods to the uniformed officer at the door who admits the solicitors engaged in the cause which happens to be first on the list of cases "without counsel." the solicitors stand before the master with a shelf upon which to rest books or papers; one side then states its demand and the other its objection in the briefest and most direct manner. the master's immediate oral decision, accompanied by imposition of the costs and a few scratches of his pen on the back of the summons, indicates to the officer the opening of the door to admit the next case. by actual count twenty-seven cases may thus be disposed of in one hour and thirty-two minutes--an average of a little more than three minutes each. of course there is a right of appeal, which, however, is rarely exercised. as the door opens two solicitors hurry in. there are no salutations nor introductory remarks and the business proceeds abruptly: _plaintiff's solicitor_: "master, we claim £ judgment for rent." _master to defendant's solicitor_: "do you admit the amount?" _defendant's solicitor_: "yes, but we claim a set-off." _master_: (endorsing a few words on the summons) "judgment for rent £ with stay of execution until counter claim is tried." _defendant's solicitor_: "if you please, master." this expression is the universal vernacular with which the defeated party accepts the judgment of a master or judge in all courts. the expression is not an interrogation but is equivalent to "as you please." out they go and the next enter; here the defendant asks for delay, and gets seven days which is endorsed on the summons and requires a minute. then comes an application under "order xiv" for judgment for £ , . defendant requires four days' delay. _master_: "what is the defence?" _defendant's solicitor_: "master, i don't know--a recent agreement has been made between the parties which i have not yet seen." _master_: "i'll give you four days, but you must pay the costs of the adjournment; thirteen shillings and fourpence." _defendant's solicitor_: "if you please, master." the next summons for judgment. as this is denied, the parties agree to try it before the master on the following thursday without a jury. then follows a summons by defendant upon plaintiff for particulars of goods sold and delivered. both parties are dealers in japanese bulbs, and the sale was made subject to arrival in england safe and sound. the defendant demands particulars of the plaintiff as to who were his customers. the plaintiff objects to disclosing his business and the written summons, containing the request for particulars, is gone over rapidly by the master. such parts of the request as, in his opinion, ought not to have been demanded, because they pry into the plaintiff's private affairs, are eliminated by a stroke of the master's pen and an order is made at the bottom in an abbreviated form, imposing the costs of the summons upon the plaintiff. this means that the plaintiff is obliged to furnish the defendant, in so many days, all the particulars which the master did not strike out, and must pay the defendant the costs of the application. a moment is consumed in giving judgment in an uncontested case for £ , with costs of £ . s. d. then comes a breach of promise case. the defendant asks for an order upon the plaintiff for a statement of claim and discovery of correspondence, which is granted. as most of the witnesses are in london, the defendant wants to try the case here, but the plaintiff wishes to try it in manchester where the parties live. the master thinks it is easier to bring two people up from manchester than to take a dozen down from london. next is a summons for directions: _master_: "statement of claim in ten days." _plaintiff's solicitor_: "yes, master." _master_: "defence in ten days." _defendant's solicitor_: "yes, master." _master_: "no counter claim?" _defendant's solicitor_: "no, master." _master_: "documents?" _both solicitors_: "large number." _master_: "all parties in london?" _both solicitors_: "yes." _master_: "any question of law?" _both solicitors_: "no." _master_: "next case." and he at once endorses a few words on the bottom of the summons. then a defendant appears in person: _master_: "do you owe the £ ?" _defendant_: "yes, sir." _plaintiff's solicitor_: "we only want judgment for £ because this morning he paid £ on account, and he agrees to pay £ a week, so that we will not issue execution if he does this." _master_: "i'll give you judgment generally for £ , but you write defendant a letter stating that you will not issue execution as you have just stated." another defendant appears in person: _defendant_: "i've got no defence, all i want is time." _plaintiff's solicitor_: "we'll do nothing until monday as we think he means to pay." _master_: "all right, it is understood you will do nothing until monday." the details of practice before these masters would be beyond the scope of the present writing, suffice it to say that rules have been promulgated from time to time, and are constantly being improved upon, having for their object the simplification of procedure, the rapid despatch of business and the settling of all minor questions which may arise in a case before actual trial. thus, "order xiv," just referred to, enables a master to enter judgment when the defence averred, even if true, would not be effectual, or when the defence is obviously frivolous, although, of course, the rights of the defendant are preserved by the privilege of appeal, the judgment, meantime, binding his property. again, the "summons for directions" is to enable the master to give general directions as to how the parties shall proceed, the intervals of time to be allowed for exchange of copies of documents, taking foreign testimony and what not. one of the cleverest contrivances in the practice before masters is the "tender of damages in tort without admitting liability." a defendant may tender, say, £ . if plaintiff does not accept it, the trial ensues--the jury, of course, being in ignorance of the tender. if the judgment be for defendant, or for more than the tender, that is the end of the matter. but if the judgment be for less than the tender, a large deduction for costs is made from the judgment, and inures to the defendant's benefit. this has enormously reduced the volume of accident cases and has also curbed the often wildly extravagant demands and unjust results in such actions generally recognized as evils difficult to deal with. in short, the system of masters in england works admirably. it is entirely adaptable to american courts, the details and modifications which might prove necessary being fitted to local conditions, but in any such adaptation, the general purpose should be kept in view, namely, that when a case appears upon a trial list it shall have already been pruned of all non-essential preliminary details and is forthwith to be actually tried upon its merits; the court's time being too precious to be expended upon the subsidiary side issues. chapter xi the police courts current hearings. upon arrest, a preliminary hearing is first held at a police station where, as in most english proceedings, the testimony, with anything the prisoner may say (after he has been warned of the consequence of self-incrimination) is carefully reduced to longhand writing and plays an important part at the subsequent stages of the prosecution. the next step is the hearing before a police magistrate at bow or marlborough streets, or at any one of the like courts in london which, although of minor importance, are dignified tribunals. the court room is entered by two small doors, one for the witnesses and audience, the other for officials and solicitors, and there is another passage leading from the cells through which the prisoners are brought to a dock. this dock, as in all criminal courts, is at the far end of the room from the magistrate. the prisoner is thus isolated and can only communicate with his solicitor, if he has been able to retain one, by scrawling a note and passing it on to an officer. the magistrate, appointed by the crown or the lord chancellor acting in its behalf, is almost invariably a man of standing and repute, always a barrister, whose ready dispatch of business shows great experience with crime, and whose kindness to the merely unfortunate testifies to his charitableness of heart. he wears no wig nor gown and is called in court, "your worship"; whereas judges of the high court are called in court, "my lord," and those of the county courts, "your honor." all judges, however, are addressed in private life as "mr." or, if they have one, by a title. a judge of the high court is always knighted on appointment and in private life is addressed as "mr. justice ----" unless he is a peer. solicitors act for the more important prisoners but barristers are rarely seen and appear in ordinary street dress if at all. the early morning run of business consists chiefly of the "drunks", divided nearly equally as to sex, and of persons arrested for begging and minor misbehavior. these cases are disposed of with great rapidity. a woman, looking very silly, and with her millinery somewhat awry, is ushered into the dock charged with being "drunk and disorderly." _magistrate_: "do you admit it?" _woman_: "hi hadmit hi 'ad a little too much, but deny being disorderly, your worship." _police constable_: (sworn) "she was banging on the door of the black horse at a.m. screamin' for drink. i cautioned her and then saw her repeat this at another closed 'pooblic', so i took her in charge." _magistrate_: (to an officer with a book of records) "is she known?" _officer_: "no, your worship, she was never here before." _magistrate_: "five shillings or five days." as she is rapidly conducted through the passage and disappears in the direction of the cells, one hears called from official to official the words: "five or five." the next is an intelligent, elderly, but very shabby, man charged with begging. the police officer had testified that a lady gave the prisoner money and that he immediately entered the nearest "pooblic". the prisoner's explanation was that he had been given the shilling without his having asked for it, and that he had gone to the tavern to get bread and cheese, which he greatly needed, and a glass of beer. the magistrate rather rebuked the policeman for referring to the visit to the public house as counting against the man, adding that anybody had the perfect right to do as he had. then, addressing the prisoner, he said, kindly, that he was by no means sure that actual solicitation by words was essential to constitute begging and that his mere appearance was an appeal. it seemed as though the man was about to get off, when the inevitable question "is he known?" brought the information that he had been in court upon the same charge on february th, on march th and again the month following. the magistrate's manner quickly changed, as he recognized an old offender, "three months hard labor," he said, and "three hard" was repeated like an echo down the corridor as the prisoner slunk back to the cells. the next was a well-dressed young man, apparently a clerk, charged with being drunk and disorderly. _prisoner_: "it's quoite roight what the constable says." _magistrate_: "seven shillings and sixpence or six days." _a voice down the corridor_: "seven and six or six." [illustration: a subject for the police court] after the early business, which is dispatched with great rapidity, come the more serious cases, which, if well-founded, are to be held for trial. an american was charged with obtaining money and goods by false pretence. soliciting advertisements from tradespeople for a book intended for americans visiting london, which never was published; he had obtained money on account and at the same time, procured millinery and garments for a woman whom he introduced as his fiancée. he was represented by a barrister who would try his case if he were held for trial. the witnesses consisted of milliners and dressmakers who detailed the method of his operations. the magistrate referred frequently to the memoranda of their evidence, taken at the police station, and questioned them so as to elicit their testimony, which he wrote down in longhand. the defendant's barrister cross-examined and the magistrate added the substance of the cross-examination to the deposition which was finally signed by the witness, to be used by the trial judge as his guide, if the grand jury should find a true bill. during the examination, one was struck by the alacrity, and glibness of the replies, as in all london courts of whatever degree. an american ear is impressed by the thought that possibly these people, living in a densely packed community of five millions, all speaking one language, are particularly facile in the use of the mother tongue, unlike the english rustic who is apt to be taciturn and awkward of speech. one is also struck, as in all courts, by a certain ring of sincerity, an attitude of respect for the administration of law and the quick and cheerful co-operation of all concerned. the englishman truly appears to the best advantage in his court, where he leads the world. if the accused be held for trial by the magistrate, the next step, as with us, is the presentation of the charge to the grand jury. the grand jury either throw out the indictment or find a true bill, in which event a jury trial follows at the central criminal court. chapter xii the central criminal court;--the old bailey current trials. at the corner of newgate and old bailey streets, near fleet street and not far from ludgate hill, stands a modern building, officially known as the central criminal court, but popularly called "the old bailey." it occupies the site of the ancient newgate gaol and fleet prison, where, for nearly seven centuries the criminals of london expiated their crimes. there they were tried and, if convicted, hanged on the premises, or--a scarcely better fate--thrown into newgate prison, which, from time immemorial, was so overcrowded, so ill-ventilated and so poorly supplied with water that it was the hot-bed of diseases designated as "prison fever." at a single session of court the fever had been known to carry off fifty human beings; not only prisoners, but such august personages as judges, mayors, aldermen and sheriffs. the present fine structure is exclusively a court house to which prisoners are brought for trial and confined in sanitary cells beneath the court rooms only while awaiting the call of their cases. there are three courts: two presided over by judges called, respectively, the common serjeant and the recorder, together with the lord chief justice of england, or such other judge of the high court as may be designated for the month, who comes from his civil work in the strand law courts to try criminal cases at the old bailey. each month, also, two or three aldermen and sheriffs of the city of london are scheduled for the complimentary duty of attending their lordships and entertaining them at luncheon. the court rooms are rather small and nearly square. like every london court, they have oak panelled walls, and excellent illumination from above by skylights; they are arranged with a high dais--on which are the chairs and desks for the presiding judge, the sheriffs, or for any guest--and they have the usual steep upward slope of the benches for barristers on the one side and for the jury on the other. only the solicitors' table is at the floor level. this arrangement brings all the participants in a trial more nearly together than if they were distributed over a flat floor. at the end of the room farthest from the judge is the prisoners' dock, a large square box, elevated almost to the judge's level. this the prisoner reaches by a stairway from the cells below (invisible because of the sides of the dock), accompanied by officers, and he stands throughout the trial--unless invited by the judge to be seated--completely isolated from his barrister and from his solicitor and can only communicate with his defenders by scrawling a lead pencil note and passing it to an officer. a small area of sloping benches, together with a very inadequate gallery, are the only accommodations for the public. if the visitor happens to be a guest of the court, he will be ushered in by a door leading to the raised dais and will sit at a desk beside the judge. his eye will first be arrested by a small heap on his desk of dried aromatic herbs and rose leaves and, while speculating as to the purpose of these, he will discover similar little piles on the desks of the presiding judge and sheriffs. he will also observe that the carpet of the dais is thickly strewn with the same litter. vaguely it is suggested that the court room has been used over night for some kind of a horticultural exhibition and that the sweeping has been overlooked. later, his astonishment, however, is redoubled when enter the sheriffs and the judge each carrying a bright colored bouquet of roses or sweet peas bound up in an old-fashioned, stiff, perforated paper holder. the visitor ventures to whisper his curiosity and he is then informed that, in the former times, these herbs, and the perfume of fresh flowers, were supposed to prevent the contagion of prison fever; and that the ancient custom has survived the use of disinfectants and the modern sanitation of prisoners and cells. the opening of court in the morning and after luncheon is a curious ceremony. the bar and audience rise and, through a door corresponding to the one by which the visitor has reached the dais, enter the two sheriffs gowned in flowing dark blue robes trimmed with fur. then comes the under-sheriff in a very smart black velvet knee breeches suit, white ruffled shirt, white stockings, silver buckled shoes, cocked hat under arm and sword at side. the sheriffs bow in ushering to his seat the judge, who is arrayed in wig and robe, which, in the case of the lord chief justice, or one of the judges of the high court, is of brilliant scarlet with a dark blue sash over one shoulder, or in the case of the common sergeant, is of sombre black. each member of the court carries the bouquet referred to and the whole group afford a dash of color strong in contrast with the dark setting. the judge, having seated himself in a chair--so cumbersome as to require a little track to roll it forward sufficiently close to the desk--the sheriffs dispose themselves in the seats not occupied by the judge or his guest, and, later, they quietly withdraw. they have no part in the proceedings, their only function being to usher in and out the judges, and to entertain them at luncheon--the judges being by custom their guests. the judge having taken his seat, the bar and public do the same and the business begins. there are usually two such courts sitting at the old bailey--sometimes three of them. at lunch time the sheriffs again escort the judges from their seats, and all the judges, sheriffs and under-sheriffs, and any guests they may invite, assemble in the dining-room of the court house for an excellent, substantial luncheon served by butler and footman in blue liveries with brass buttons, knee breeches and white stockings. the luncheon table looks odd with the varied costumes, the rich blues, the bright scarlets and the wigs of the party, who, no longer on duty, relax into jolly sociability. indeed one can not escape the impression that he has in some way joined a group of "supes" from the opera who are snatching a light supper between the choruses. these are some of the picturesque features of the old bailey which, at the same time, is the theatre of the most sensible and enlightened application of law to the every day affairs of the largest aggregation of human beings the world has ever seen. while enjoying a cigar after luncheon with one of the under-sheriffs, the voice of the common serjeant or recorder is heard at the door of the smoking room. robed and armed with his bouquet, he smilingly inquires if there are no sheriffs to escort him into court. a hasty buckling on of sword, a snatching up of his bouquet and a little dusting of cigar ashes from his velvet knee breeches, prepares the under-sheriff for the function, and, preceded by the sheriffs in their blue gowns, his lordship bringing up the rear, the little procession starts along the corridor and enters the door leading to the judges' dais. the under-sheriff shortly returns to finish his cigar but the guest tarries beside the judge. the first case was a minor one--a charge of breaking and entering a shop and stealing some goods. his name having been called, the prisoner suddenly popped up into the dock at the far end of the room with police officers on either side of him. asked if he objected to any of the jurors already seated in the box, he replied in the negative and the trial began. the junior barrister opened very briefly, merely stating the name, date, locality and nature of the charge. following him the senior barrister gave the details at much greater length. these barristers were not, as with us, district attorneys or state prosecutors. they are either retained by the treasury or, as the case may be, represent private prosecutors. the judge was fully conversant with the evidence, as he had before him the depositions taken at the magistrate's court. in an english court, when counsel has finished the direct examination of a witness, he does not say, as we do, "cross-examine" or "the witness is yours", he simply resumes his seat as the signal for the other side to cross-examine. sometimes, a pause of the voice simultaneously with a stooping of the barrister's head for a word of suggestion from the solicitor below, leads his opponent to believe he is seating himself and to begin to cross-examine prematurely. although in this case the plea was "not guilty," the charge was practically undefended, and a prompt verdict of "guilty" followed. then came the important query from the judge to the police as to whether the prisoner "is known"--was there a record of former convictions? learning that there was not, a sentence to eighteen calendar months at hard labor followed a caution that if he should be brought again before the court, he would be sent to penal servitude. with a servile "if your lordship pleases" he turned to dive down the stairs, and, as he did so, with a grinning leer, seized his left hand in his right and cordially shook hands with himself--a bit of a gesticular slang which led one to think that the police were not very well informed as to his previous experiences. the next was a more important case. a clever but sinister-looking belgian, the master of several languages, was charged with obtaining a valuable pair of diamond earrings by an ingenious swindle. having a slight acquaintance with a dealer in stones, he telephoned that a friend of his was coming over to london from paris to join his wife and desired to present her with a pair of earrings. if the dealer had suitable stones and would allow a commission, the belgian said he would try to effect a sale for him. he, therefore, arranged that the dealer, at a fixed hour the following day, should bring the stones to his lodgings for the frenchman's inspection. the appointment was kept and the two men waited for some time for the frenchman. finally the latter's wife appeared and explained to the belgian in french--which the englishman did not understand--that her husband had been detained but would come by a later train, whereupon she withdrew, and the conversation was interpreted to the disappointed dealer. then the belgian suggested that, if the dealer cared to leave the stones, he would give a receipt for them and would either return them or the money by half-past four. the dealer replied that although he was quite willing to do so, he had partners whose interest he must consult. the belgian then produced a certificate of stock in some newfoundland company, saying that it was worth as much as the diamonds. the dealer consented to receive this as security and he then left. just before half-past four he was called up on the telephone and told by the belgian that he had made the sale and had received the money in french notes which he would have changed into english money. the dealer told him to bring the french notes, which would be acceptable to him. that, of course, was the last he ever saw of the money, the diamonds or the swindler, until the latter was arrested some months later. the leading nature of the direct examination, so marked in all english courts, was conspicuous in such questions as the following: _q_: "did the defendant telephone you about . ?" _a_: "yes, sir." _q_: "did you recognize his voice?" _a_: "yes, sir." _q_: "did you send an assistant to the defendant's flat with a letter and was it returned to you unopened?" _a_: "yes, sir." the secretary of the newfoundland company having been called, was asked: "were the shares in defendant's name formerly in the name of john smith?" _a_: "yes." _q_: "was there an order of court forbidding their transfer?" _a_: "yes." two pawnbrokers testified that, shortly after four o'clock, the prisoner had brought the earrings to their shops and asked how much would be loaned upon them and that, the sum offered being apparently unsatisfactory, the belgian took the earrings away. _defendant's barrister_: "my lord, i submit, i've no case to answer." _the court_: "oh, yes, you have." _barrister_: "well, if your lordship thinks so." the defence was cleverer than the original swindle in that it did not attempt to deny the overwhelming evidence, but merely made the story tally with an ostensibly innocent explanation. the belgian averred that he had himself been robbed by the frenchman, with whom he had but a slight acquaintance gained at the paris races. he said that the frenchman had kept the deferred appointment and, though he admired the stones, he thought them hardly worth the price, whereupon the two had set off in a cab to obtain an opinion as to their value. if thus assured, he was to make the purchase and together they were to take them to his wife in a hotel near piccadilly. as it was late in the day, they failed to find a french-speaking jeweller whom they sought, and it was suggested that, as pawnbrokers were very cautious in loaning, two opinions of that fraternity should be had. on stopping at the pawnbrokers' shops, the frenchman, being ignorant of english, said there was no use of his going in as he would have to rely upon his companion's interpretation and might as well sit in the cab. thus, the visits by the belgian alone to the two pawnshops and the inquiry as to the amount procurable as a loan, were duly accounted for. according to the prisoner's story, the frenchman, being satisfied, proposed to pay in french notes and the belgian entered a public telephone booth to enquire of his principal if that would be satisfactory, leaving the jewels with the frenchman in the cab. when he returned the cab was gone. his intention having been to leave for the continent the following day, the belgian said he had already notified the landlord of his flat--which was apparently true--and had dispatched his effects in advance. so, supposing that the frenchman had gone to paris, he immediately followed on the evening train in the hope of identifying him en route, or of finding him somewhere in that city. he swore he did find him a few days later and caused his arrest, and that the french magistrate declined to hold him because the crime had been committed in england where there was no warrant out, and, hence, no demand for extradition. the weakest point in this ingenious fabrication was the prisoner's failure to communicate with the owner of the diamonds during the ensuing five months. this, and other discrepancies, having been easily laid bare on cross-examination, a verdict of guilty was quickly rendered. the judge had hardly uttered the usual query whether the prisoner was known, before an alert police inspector replied, "he is an international swindler, well-known all over the continent, wanted in berlin for a job of , marks, in paris for another of , francs and elsewhere." _judge_: "suppose we give him a few months and allow the foreign police to apply for extradition?" _inspector_: "well, your lordship, the trouble is that he claims to have been born in paris of english parents and that he is, therefore, a british subject, and the french police will jolly well accept his statement." _judge_: "that's very awkward. we'll give him twelve calendar months and see what transpires." chapter xiii an important murder trial amongst the murder trials on the "calendar of prisoners" appeared "no ; madar lal dhingra, , student, wilful murder of sir william hutt curzon wyllie and dr. cowas lalcaca." this referred to the cowardly assassination of an english gentleman who had devoted his life to indian administration and to benefiting the native races of that country, and to the murder of an indian doctor, who lost his life in an effort to save him. the tragedy, the news of which had profoundly shocked the world less than three weeks before, occurred during an evening reception at the imperial institute. the prisoner, a fanatical indian student, was believed to have borne no personal animosity to his victim. no one knew exactly when the case would be reached, but it had been expected for several days when, one morning, the old bailey, in view of a possible disturbance by indian sympathizers, was found to be carefully guarded by detectives. except a small audience admitted by cards which were doubtless hard to procure and not transferable, the public, clamoring at the doors, were excluded from the court, although one american lady, who appeared in one of the back seats, seemed to have had information and influence necessary to gain an entrée. the barristers' benches, however, were so full that there was an unusual array of bewigged heads on that side of the court. the jury, already in place, and the small audience, waited in quiet but tense expectation. while one was idly noting the usual dried herbs and rose leaves on the desks and carpet of the judges' dais, the lord chief justice seated himself and rolled his chair forward, a shaft of soft sun rays from the skylight accentuating his scarlet robe. the sheriffs bowed and took their seats at the side, and dhingra's name was called. into the dock at the far end of the room popped the prisoner, guarded by two imperturbable policemen. he was a little, yellow youth with a semitic or oriental countenance, silky black hair much dishevelled and badly in need of the scissors, and eyes, so far as they were discernible under his gold-rimmed spectacles, of glittering black. he wore an ordinary gray suit and stood with his right hand thrust into the breast of his coat, suggesting that he had concealed there some weapon or, perhaps, poison; but of course he had long since been disarmed and under careful guard. his was a meagre figure, by no means conveying to an observer his own conceited estimate of his personality. when he spoke, though posing as a hero and martyr, he revealed only a sullen, sulky and venomous disposition and the ferocity of his character was attested by the premeditated and treacherous murder which he had committed. the clerk of arraigns having asked whether the prisoner pleaded guilty or not guilty, his reply was at first not understood because of his broken english and his quick, spasmodic utterance. so his answer had to be repeated, as follows: _prisoner_: "first of all, i would say these words can not be used with regard to me at all. whatever i did was an act of patriotism which was justified. the only thing i have got to say is contained in that statement, which i believe you have got." _the clerk_: "the only question is whether you plead guilty or not guilty to this indictment." _prisoner_: "well, according to my view i will plead not guilty." _the clerk_: "are you defended by counsel?" _prisoner_: "no." there were three barristers for the prosecution, including the attorney general who chiefly conducted the case. the lord chief justice volunteered leave to the prisoner to sit down, which he did, appearing more diminutive than ever, in contrast with his guardians. the junior barrister having stated the names, the date and locality of the crime very briefly, the attorney general opened the case for the prosecution in great detail, consuming a third of the ninety minutes which elapsed before sentence of death. in his opening, as is usual in england, he produced exhibits and read letters not yet offered in evidence. in substance it was related that dhingra came to england about three years before to study engineering and fell into the association of india house, a rendezvous in london of indians of seditious proclivities. he lived in lodgings where he had few visitors and where, after the murder, was found a letter from sir curzon wyllie which was read in the opening speech and which stated that the prisoner had been commended to the writer's protection and offered to be of service to him while in england. the story was told of his procuring a license to carry a weapon, of his purchase of a colt's automatic magazine revolver and another revolver, of cartridges and of a long dagger--all of which were produced by the speaker and the triggers of the empty pistols snapped to show the jury how they worked. an account of his frequent practice at a pistol gallery for three months and up to the very afternoon of the day of the tragedy and the use of a target the size of a man's head, preceded an exhibition of the last paper target used, when four bullets out of the five had pierced the bull's eye. the speaker described how dhingra had called his victim aside into a vestibule while lady wyllie proceeded down the staircase, how he fired four shots pointblank, which passed through sir curzon's head; how dr. lalcaca had tried to intervene and was shot for his temerity, and how, finally, an elderly english baronet had grappled with the murderer and succeeded in wresting the revolver from him and bearing him to the floor. the witnesses were then called and examined with great rapidity, the judge restricting their testimony to essentials and checking both counsel and witness from the slightest digression. this seemed to be carried almost to an extreme, as an untrained witness often brings forth an important fact amid much irrelevant verbosity. at the end of the direct examination of the first witness, his lordship asked dhingra if he wished to cross-examine. the latter growled a negative but added that he had something to say, whereupon he was informed that he would have an opportunity for that later. thereafter, when asked the same question at the conclusion of each witness' evidence, he merely shook his head. the prosecution having rested, dhingra was asked if he had any witnesses and replied that he had not. the lord chief justice then informed him that if he had anything to say, now would be his chance, and asked whether he desired to speak where he was--from the dock--or from the stand. the judge of course referred to the difference between a mere unsworn statement which might be in the nature of a plea to the jury to add a recommendation for mercy to their verdict, or, sworn testimony which might go to the merits of guilt or innocence. it was apparent that the prisoner, as he was without counsel, did not understand this question and, as well, that the judge did not comprehend his inability to grasp a distinction indicated in the question. doubtless, as the prisoner was bound to be hanged--and he richly deserved it--the misunderstanding made not the slightest difference in this case, but one could not help feeling that the failure to provide counsel was a serious defect in the administration of justice. dhingra elected to remain in the dock and stated that he was unable to remember all he wanted to say, but that he had committed it to a writing which was in the possession of the police. this was then read by the clerk but so falteringly owing to the manuscript being illegible, that the effect of the revolutionary diatribe was largely lost. the london _times_, however, printed it the next day as follows: "i do not want to say anything in defence of myself, but simply to prove the justice of my deed. for myself i do not think any english law court has got any authority to arrest me, or to detain me in prison, or to pass sentence of death upon me. that is the reason why i did not have any counsel to defend me. i maintain that if it would be patriotic in an englishman to fight against the germans, if they were to occupy this country, it is much more justifiable and patriotic in my case to fight against the english. i hold the english people responsible for the murder of eighty millions of my countrymen in the last fifty years, and they are also responsible for taking away £ , , every year from india to this country. "i also hold them responsible for the hanging and deportation of my patriotic countrymen, who do just the same as the english people here are advising their countrymen to do. an englishman who goes out to india and gets, say, £ a month, simply passes the sentence of death upon one thousand of my poor countrymen who could live on that £ a month, which the englishman spends mostly on his frivolities and pleasures. "just as the germans have got no right to occupy this country, so the english people have no right to occupy india, and it is perfectly justifiable on our part to kill an englishman who is polluting our sacred land. "i am surprised at the terrible hypocrisy, farce, and mockery of the english people when they pose as champions of oppressed humanity such as in the case of the people of the congo and of russia, while there is such terrible oppression and such horrible atrocities in india. for example, they kill , , of our people every year and outrage our women. if this country is occupied by germans and an englishman, not bearing to see the germans walking with the insolence of conquerors in the streets of london, goes and kills one or two germans, then, if that englishman is held as a patriot by the people of this country, then certainly i am a patriot too, working for the emancipation of my motherland. whatever else i have to say is in the statement now in the possession of the court. i make this statement, not because i wish to plead for mercy or anything of that kind. i wish the english people will sentence me to death, for in that case the vengeance of my countrymen will be all the more keen. i put forward this statement to show the justice of my cause to the outside world, especially to our sympathizers in america and germany. that is all." his lordship then asked the prisoner if he wished to say anything more. the prisoner at first said "no", but just as the lord chief justice was commencing to sum up the case to the jury, dhingra said there was another statement on foolscap paper. _his lordship_: "any other statement you must make now yourself." _prisoner_: "i do not remember it now." _his lordship_: "you must make any statement you wish to the jury. if there is anything, say it now." _prisoner_: "it was taken from my pocket amongst other papers." _his lordship_: "i do not care what was in your pocket. with what you had written before, we have nothing to do. you can say anything you wish to the jury. what you have written on previous occasions is no evidence in this case. if you wish to say anything to the jury in defence of yourself, say it now. do you wish to say anything more?" _prisoner_: "no." the lord chief justice then summed up the case to the jury in a charge occupying but six minutes. he said that the evidence was absolutely conclusive; that the jury had no concern with any political justification for the crime, for if anything of the kind were considered it would be in the carrying of the sentence into effect--with which the jury had nothing to do--that this was an ordinary crime by which a blameless man, who had devoted himself to the public service and had done much for the natives of india, had lost his life, and that it was quite plain there had been premeditation. his lordship added that there was nothing which could induce the jury to reduce the crime from murder to manslaughter, nor was it suggested that dhingra was insane, so that if the jury believed the uncontradicted evidence the only possible verdict was one of wilful murder. without leaving the box the jury put their heads together and, in less than a minute, the foreman arose and uttered the fateful word "guilty." there are no degrees of murder in england, but in cases where a weak intellect or greatly extenuating circumstances render hanging too severe a penalty, the home secretary may exercise a power of commutation. thereupon dhingra having been ordered to stand up, the clerk addressed him as follows: "you stand convicted of the crime of wilful murder. have you anything to say for yourself, why sentence of death should not be passed on you according to law?" _prisoner_: (with a snarl) "i have told you once i do not acknowledge the authority of the court. you can do whatever you like with me--i do not care. remember, one day we shall be all-powerful, and then we can do what we like." then followed absolute silence for two minutes--a silence in which the breathing of persons near was audible. slowly the lord chief justice lifted from his desk a piece of black cloth. it was the "black cap." one naturally thinks, from its name, that this is a kind of headgear corresponding to the shape of a man's head. on the contrary, it looks like a piece of plain limp cloth, a remnant from a tailor's shop, about a foot square, which the judge places on the top of his wig, letting it rest there quite casually and perhaps at a rakish angle, the four corners hanging down and the whole producing a somewhat ludicrous effect. neither judge, jury, nor audience, rose when sentence was about to be pronounced, but all remained seated, except the prisoner, who stood in dreary isolation, flanked by his stalwart guard, at his elevated station in the dock. his lordship, the dignity of whose well-modulated voice contrasted strongly with his comical head covering, slowly addressed the prisoner as follows: [illustration: the sentencing of dhingra] "madar lal dhingra, no words of mine can have the slightest effect upon you, nor do i intend to say anything more than to point out to you that you have been convicted upon the clearest possible evidence of the brutal murder of an innocent man. the law enforces upon me to pass the only possible sentence in such a case." the sentence was that the prisoner should be hanged by the neck until he was dead and be buried at the place of execution. the chaplain, in his robes, having somehow appeared at his lordship's side, added: "amen. and may god have mercy upon your soul." immediately after the dread words had been uttered, the prisoner saluted the grave judge by a salaam, bringing the back of his hand to his forehead, and said in a manner, the impertinence of which deprived his words of dignity: "thank you, my lord. i am proud to have the honor of laying down my life for my country. i do not care." counsel representing the relatives of the condemned man then arose and said that he was instructed to say that they viewed the crime with the greatest abhorrence and wished to repudiate in the most emphatic way the slightest sympathy with the views and motives which had led to it, adding, on behalf of the father and family, that there were no more loyal subjects of the empire than themselves. his lordship replied that, while the course might seem somewhat unusual, yet, having regard to the wicked attempt at justification in some quarters, he was glad for what had been said on behalf of the members of the family. dhingra and his guards then disappeared from the dock and in a few moments the lord chief justice and his escort, as well as the small audience, had withdrawn, leaving the court room deserted except for a newspaper reporter who was completing his notes. and so the drama closed. one was told that the youthful student would probably be hanged in a fortnight from the following tuesday--the trial having taken place on a friday--as ancient custom entitled the condemned man to three sundays of life after sentence.[b] the spectacle of this little, lonely, misguided, yellow man, prompted partly by fanaticism but largely by vanity, having braved the whole power of mighty britain in its proud capital to exploit his chimerical views, caught in the meshes of a law he hardly understood and hemmed in on all sides by its remorseless ministers, was deeply interesting and somewhat calculated to excite sympathy, until one's reason summoned the significance of the treacherous murder and the picture of a fair englishwoman going out into that london night a widow. while the result of this trial was justice, swift and unerring, to an american observer it seemed odd and scarcely a fair practice for a man to be tried for his life unrepresented by counsel learned in the law. although the case was plain, nevertheless, with great respect for the admirable administration of the law in england, it must be remarked that innocent persons,--who, even if not mentally defective, may none the less be far from clever and who are necessarily inexperienced, and may perhaps lack the intelligence or means to retain counsel--ought not to be permitted by the court to pit their wits against an able officer of the crown, the stake being their own necks. to excuse the omission on the ground of the obvious guilt and callousness of the prisoner, is not a satisfactory solution, because it would involve prejudging the issue to be tried. the proper and humane course is followed in the united states--the appointment by the court of counsel for an undefended prisoner--for it guards against the possibility of terrible mistakes. from a technical point of view, the "leading" nature of the direct examinations, so noticeable in english courts, was especially conspicuous in that this was a murder trial where no departure from the recognized customs would have been permitted. one's ear grows accustomed to questions which put the answer into the mouth of the witness and require merely a monosyllabic assent; and one waits in vain for the objection which, at home, would follow such infractions of the rules of evidence as thunder succeeds lightning. in the dhingra trial, for instance, the attorney general did not scruple to ask such questions as the following: _q_: "did you happen to look through the doorway and into the vestibule and see the prisoner speaking to sir curzon wyllie and did you see him raise his hand and fire four shots into his face, the pistol almost touching him?" _q_: "did you see sir curzon wyllie collapse?" _q_: "then, was there an interval of some seconds and then more shots?" (these killed dr. lalcaca.) nor did he hesitate to put such questions to another witness as: _q_: "did you hear the noise of four shots and did you then look and see the prisoner and did you see him shoot again?" a police officer was asked: _q_: "did you examine the pistol and find one undischarged cartridge only?" _q_: "had the other pistol six undischarged cartridges in it?" _q_: "did you find two bullets similar to these in the wall?" to such an extent was leading carried in the dhingra trial that occasionally the answer did not follow the lead, thus: _q_: "did you ask him 'what is your name and where do you live?'" _a_: "i can't remember what i asked him." the probable reason for the great latitude in this regard is the fact that apparently nothing in an english trial is a surprise--except to the jury. the court and counsel, knowing practically all the evidence beforehand, are extremely lenient. not only are leading questions common but also questions asking for conclusions--not for facts from which the jury may draw their own deductions. thus, in the dhingra trial, a doctor, who was sent for after the murder, was asked: "did the prisoner seem calm, quiet and collected?" a plaintiff, perhaps, will be asked: "how came the defendant to write this letter and what was its object? did he consider himself remiss?" of course an american lawyer would successfully contend that a letter speaks for itself, while a man's estimate of his own position could only be put in evidence by repeating his admissions in that regard--not by asking his opponent how he regarded himself. in favor of the practice of asking witnesses for conclusions--a practice which many american lawyers have found invalidates parts of testimony taken in england for use here--much may be said. to ask a witness the mental attitude of a person, whom he heard talking a year before--whether he was angry, or joking, for example--is to ask an answerable question; but to require him to repeat the exact words, is to demand an impossibility. in replying to either form of inquiry the witness may be honest or the reverse, so that the chances of intentional misinformation are equally balanced, but an attempt at verbatim repetition nearly always requires, consciously or unconsciously, a draft upon the imagination. it seems that our rules of evidence in this regard might, perhaps, be cautiously relaxed with advantage, to accord more with practical experience. an english criminal trial is quick, simple and direct. dhingra, for example, whose crime was committed on july first, was sentenced on the twenty-first of that month and was hanged on august seventeenth--all in forty-seven days. the simplicity and directness of such trials is due to the absence of irrelevant testimony and imaginative arguments; these, counsel scarcely ever attempt to introduce--so certain is their exclusion by the judge. thus, the real object of all punishment--its deterrent effect upon others--is greatly enhanced because it is swift and sure. the public, moreover, are usually spared the scandal and demoralizing effects of prolonged, spectacular and sensational trials. until a short time ago any person convicted in an english court was without appeal--the rulings and sentence of a single judge were final--but this manifest injustice has lately been cured by a law granting the right of appeal. it is too soon to estimate the effect of this change, but the prediction may be ventured that the ancient habit of regarding criminal judgments as conclusive, together with the saving common sense which characterizes all english courts, will probably prevent any radical departure from the present methods, which have much to commend them. comparison with american conditions is most difficult because, besides the united states courts extending for certain purposes over the whole country, there are forty-six absolutely separate sovereignties whose administration of criminal law, unless in conflict with the constitution of the united states, is as independent of the rest of the world as that of an empire. consequently, while differences exist in methods and results, the remarkable fact is that they are, upon the whole, so similar, when only a common tradition and a fairly homogeneous public opinion serve to keep them from drifting in diverse directions. the administration of criminal law by the united states courts deals chiefly with the trial of persons accused of murder on the high seas, counterfeiting, forgery, smuggling or postal frauds, defaulting bank officials and, very lately, corporation managers charged with favoritism in freight rates, or with the maintenance of monopolies affecting interstate commerce. throughout the length and breadth of the land it is prompt, thoroughly dignified, vigorous and fair; indeed, its excellence, as a whole, suffers little if at all by comparison with the best english standards, which have been perfected only by centuries of experience in the highly concentrated population of a small island. but turning to the individual states, all comparisons must depend upon locality. new york, the landing place, that threshold of real america, with a predominating foreign population; the western frontiers of civilization, and the south, with its peculiar racial conditions, suffer by comparison with british standards far more than would one of the orderly communities composing the greater part of the republic. recent mal-administration of criminal law in new york constitutes a subject of national mortification, but the existence of this sensitiveness is the best of reasons for believing that time will bring an improvement. unfortunately for the good name of the country, foreigners do not comprehend, and can hardly be made to appreciate, that the instances of private assassination in that city followed by trials, which, whether owing to a vicious system of practice or to judicial incompetency, excite the indignation and ridicule of the world, are not typical of america but are expressions of purely local and probably temporary conditions. foreign critics should be told that new york is not america, as many of them assume, and that temporary and local lapses do not prove a low standard. they may also be reminded, as showing that human justice is fallible, that even in london if a man walks into an oxford street department store, lies in wait for the proprietor against whom he has a grievance and blows out his brains, although he will be convicted in a trial occupying but three hours, yet the home secretary may intervene and prevent his hanging, upon a petition signed by tens of thousands of sentimentalists moved by the rather illogical fact that his wife contemplates an addition to a thus celebrated family. in the far west, criminal practice is probably neither better nor worse than in any other rough frontier of civilization where men must largely rely upon their own resources, rather than upon the government, for the protection of their lives and property. conditions in the south are so peculiar, owing to the sudden elevation to a legal equality of an inferior race which is in the majority, that no comparison with any other community is possible. without in the least condoning existing conditions, it may even be said that lynching, unlike private assassination, involves some degree of co-operation and is the expression of public, rather than of individual, vengeance. the theatre of these outrages is, moreover, sparsely settled, beyond large cities or centres of education, and still retains some of the features of a frontier. throughout much the largest area, however, constituting the solid civilization and containing the bulk of the population of this immense country, no such conditions exist. on the contrary, crime is met with that steady and impartial justice, inherited from england, which neither partakes of the police oppression of continental countries, nor lapses into the barbarism of the exceptional localities above referred to. to commit deliberate murder in one of the eastern states, such as pennsylvania, or massachusetts, or in one of the great commonwealths of the middle west, means sure and reasonably speedy hanging. but, bearing in mind the difficulty of accurate comparisons between such diversified sections and a compact unit like england, and endeavoring to arrive at a general estimate, it must be conceded that america, as a whole, has even more to learn from england's criminal, than from her civil, courts. footnote: [b] he was hanged three weeks from the following tuesday. chapter xiv litigation arising outside of london local solicitors--solicitors' "agency business" --the circuits and assizes--local barristers --the county courts--the registrar's court. as has been said, solicitors are to be found in every town in england, whereas barristers, with minor exceptions to be noted, all hail from the london inns of court. people living in the country or in provincial towns, especially the larger ones, such as liverpool and manchester, of course consult local solicitors. if litigation is contemplated, the solicitor advises his client and conducts the sparring and negotiations which usually precede a lawsuit. but when actual warfare opens, the provincial solicitor generally associates himself with a london solicitor who is known as his "agent"; and hence "agency business" constitutes a considerable portion of the practice of a large firm of town solicitors. the manchester or liverpool solicitor does all the work and receives the fees up to the time he sends the "proofs" to the agent--that is, the documents, statements of witnesses reduced to affidavits, and the other items of evidence--and dispatches the witnesses to the trial in london, which usually however, he does not attend himself, although, of course, he sometimes does so. the london solicitor retains the barristers, and is thereafter in complete charge of the case. the newspaper reports of trials of cases from the provinces, after giving the names of the barristers, always mention the london solicitor as agent for the country solicitor whose name also appears. the fees are shared from the time of association; one-third to the country, and two-thirds to the town solicitor. this is not unlike the manner in which our lawyers handle business in states other than their own--but it is much more systematized. if, however, the provincial solicitor prefers to await the assizes (which he may, except in divorce, probate, equity and some other kinds of business) he may bring his action in the high court, sub-offices of which are available throughout the country for the issuance of writs, and, having retained a barrister, may try the case in his own town when the judge of the high court comes down from london thrice a year on circuit. these circuits of the high court are arranged with regard to the volume of business and the contiguity of centres of population, without reference to county boundaries, and the same judge is rarely designated to repeat his visit to a circuit until it is reached again in regular rotation. to some circuits, like the northern, where the business is very heavy, two judges are sent. at these assizes, both civil and criminal business is handled, and, if there be two judges, one court room is devoted to the former and the other to the latter. every london barrister, early in his career, joins a circuit. he usually selects one where he may be somewhat known to the solicitors, and where, perhaps, his family have property or associations. formerly and, in fact, long after the advent of steam, judge and counsel "rode the circuit"--as was done in the early days of our own county bars--and indeed, within the memory of barristers still in middle life, a horse van used to stand in one of the temple squares to receive the luggage, papers and books of court and bar for the circuit. each circuit has its "mess" with interesting traditions of midnight carousals and records of fines of bottles of port inflicted upon members for various delinquencies. the modern mess, besides procuring special rates at the hotels, constitutes a sort of itinerant club; rendering possible a discipline for breaches of professional propriety by expulsion or denial of admission, which is the most drastic punishment short of disbarment. a few barristers, and their number is increasing, reside in large towns other than london and practice exclusively at the assizes and in the county courts--of which something will be said later. they are known as "locals". if successful, however, they gravitate to the source of the high court--london. thus the local solicitor, if he decide to eschew london and an agent and await the assizes, has a considerable bar from which to pick his man. a barrister never accepts a brief in a circuit other than his own unless the solicitor has also briefed, as his associate, a junior who is a member of the circuit. to do so would be a gross breach of etiquette. but if this unwritten law be duly observed, the barrister who is a stranger here, although a daily colleague in the london courts, is immediately received with open arms and made an honorary member of the mess. court and bar having reached and disposed themselves in an assize town, as a flock of birds settle in a convenient cover, a transplantation of a london court is effected until the disputes of the neighborhood are resolved. an observer can find no difference in personnel or general aspect, except perhaps, that the provincial policemen at the doors are not so polite and patient as the london "bobby"--that marvel which excites the envy, admiration and despair of conscientious ministers of authority in the rest of christendom. if an action involve no more than £ , a solicitor may seek the county courts--for there are seven of such courts for the county of london. the advantage in so doing is chiefly in the smaller costs, which are a serious matter to all english litigants, and almost prohibitive to the poor. the judge of a county court must be a barrister of at least seven years standing and generally hails from london. he is appointed by the lord chancellor and receives a salary of £ , . his title in court is "your honor", as distinguished from a judge of the high court, who is addressed as "my lord" or "your lordship," and from a magistrate, who is called "your worship." in the county courts, solicitors "have audience", that is, they may, equally with barristers, address the court and jury; in other words, they may be the actual trial lawyers, whereas, in the high court barristers alone are heard. in addressing the court, they must wear a black gown, but no wig. barristers, except locals, are infrequently seen in the county courts; the amounts involved scarcely warrant retaining them. but, for some years, the tendency has been to increase the limit of jurisdiction of these courts and their importance is steadily growing. in this connection it may be mentioned, too, that agitation appears to be making some progress for removing all limitation of the jurisdiction of the county courts with, however, a right to the defendant to remove a cause to the high court when more than a certain sum is involved, thus creating a sort of solicitor-advocate. but the outcome of all this is, at the moment, problematical. at present, to prevent solicitors developing into pure advocates even in the county courts, a law forbids one solicitor retaining another to conduct the actual trial. the registrar's court in a great town, like birmingham, will be found in the county court building. the court room is large, but usually contains only a few people, of the lower class, and the registrar, in black gown and wig, sits on a raised dais. in the high court, the american observer has been accustomed to associate a gown only with the barrister--never with the solicitor. in the county courts, however, he has seen solicitors practicing as advocates, in minor cases, and wearing gowns; but until he visits a registrar's court he has never seen a wig except upon the head of a barrister or of a judge; and all judges have once been barristers. he is therefore surprised to learn that, notwithstanding his attire, the registrar is a solicitor, appointed to his position by the county judge. beside the registrar stands a man who very rapidly passes to him numerous printed forms upon which the registrar places a figure or two, such as " / " or " / ". this is done almost as fast as one would deal a pack of cards. occasionally, there is a pause, a name is called and some one from the audience steps forward; whereupon brief testimony is taken as to some small debt, claimed upon one side and denied upon the other. judgment for plaintiff follows in nine cases out of ten, and then inquiry is made by the registrar whether the defendant--or her husband, if she be a woman--has work or is unemployed. a figure is then placed on the printed form which is added to the pile. the business dispatched is that of some large retail tradesman. upon payment of a small fee in the clerk's office, summonses have been obtained which have been served on the debtors by a policeman, and, in most cases, the defendants have signed their names admitting the debt. the figures / , / , etc. signify the order of the court, that shillings and pence, or shillings and pence, shall be paid monthly until the debt is liquidated. in this way, the time of a defendant who admits the debt is not diverted from his work to attend court. the claims are fixed for hearing in batches of every half hour of the court's sitting, when, if not admitted in writing, a short trial of the contested cases ensues. in this way about cases a day are readily disposed of. payments are made in the clerk's office and each payment is endorsed on the summons. if the debtor falls out of work, an application is made, invariably with success, to suspend the payment until idleness ceases. the costs are trifling and the whole system works admirably. it is a prompt and businesslike manner of enforcing small obligations with a minimum of loss and delay. chapter xv general observations and conclusion it is the office of the courts to administer written laws enacted from time to time in response to the popular mood. they also--and it is the more important function--discover and declare the principles of natural justice which, in the absence of written law, govern the decision of a controversy. these deliverances, constituting the common law, rely much upon precedents which, however, are not followed slavishly, but are continually being modified--sometimes abruptly--in harmony with prevailing sentiment. thus, the law expounded by the courts is ever changing and it slowly follows public opinion. both the public opinion and the law of england were, for generations, characterized by the quality of conservatism. the various reform acts, starting in , marked the advent of an epoch of individualism which, lasting for over fifty years, made england the land where personal liberty and private property were perhaps safer than ever before in the world's history. it was a country where government's chief concern was to furnish irreproachable courts, competent police and few but honest civil servants, so that each man might pursue happiness after his own fashion with the least possible interference, yet with complete confidence that he could assert his rights effectively when invaded. hence it was that america learned to look to england for precedents. all this is changing. the substitution of the doctrines of collectivism for those of individualism began in and it proceeds rapidly in many directions. the socialistic harangues one hears from vagabonds mounted on benches in hyde park are delivered without interference by the police. the spreading of discontent by paid agitators proceeds at the market crosses and in the taverns of the villages between elections. later the politicians appear and solicit votes for impossible schemes, an ever increasing proportion of which are actually adopted by parliament and of which the laws regulating liability for personal injuries, attacks upon land and other forms of property, old age pensions and the methods of public education, furnish typical examples. [illustration: sidewalk socialism--hyde park] the workingmen's compensation and employers' liability act of was a tentative step, but seems likely to lead to extended liability and reduced defences, particularly in the matter of contributory negligence, which has almost ceased to be a factor. one of the clauses of this act shows that, even when it is proved that the death or serious disablement of a workman is attributable to his own wilful misconduct, compensation may yet be claimed on his behalf from his employer. in addition, another and unheard of form of liability for an employer, requiring him to compensate his servant if the latter falls ill or dies of an "industrial disease" (a list of which diseases was appended to the act) and with the extraordinary provision that, having paid the compensation, the employer may sue any former employer for the amount, if he can prove the servant actually contracted the complaint in the earlier service and within ten years. of course universal accident liability insurance followed, the cost of which must be borne by the proprietor, and, if he is a manufacturer, eventually by the consumer. as may be imagined, such laws give rise to surprising results. the report of one of the great accident liability insurance companies, made shortly after the passage of this law, exhibited, for example, the recovery of damages by a domestic servant, who, while eating a meal, had swallowed her own false teeth; another had contrived to swallow a curtain hook; a third was burned by the bed clothes taking fire from a hot iron which she had wrapped in flannel for the purpose of warming herself. the manageress of a laundry had her hands poisoned by handling copper coins. a footman was bitten while attempting to extract a cat from the jaws of a dog; a nurse-maid was burnt by letting off fire works in the back garden at a private celebration of the servants during the master's absence, and a cook had her eyes scratched by the house cat. such absurdities show the trend of modern english legislation on the subject. a glance at an english landscape with its panorama of endless turf and forest and comparatively small areas of cultivation, in marked contrast with the minute utilization of every inch on the continent, and the reflection that england produces only a portion of the food consumed in its crowded towns, should leave no one surprised at an agitation to modify the existing conditions, which led to continued assaults upon all forms of possession, whether of real or personal property. acts of parliament followed each other in quick succession depriving land owners of their holdings to inaugurate chimerical building schemes; giving rent-payers power to condemn and forcibly purchase dwelling houses; attacking property other than land by taxing the inheritance of money so heavily (on a sliding scale of percentages increasing with the size of the estate), as to approach the socialistic ideal that two deaths shall mean the absorption by the state of any large property and that no man shall enjoy a rich grandfather's accumulations; levying upon the living wealthy by ever increasing income taxes, with a like sliding scale, operating upon them alone, while exempting the poor. to this almost confiscatory taxation no limit seems to be in sight. old age pensions--one of the most startling novelties of the collectivist--are doubtless economically impossible and morally pernicious unless required to be contributory on the part of those who may later claim them, so that they constitute a system of compulsory saving and insurance, as is the plan in germany where socialism is at least somewhat scientific. but it remained for the once conservative england to inaugurate the distribution of universal alms without any comprehensive plan for raising the money--the weekly dole to be inevitably increased and the age limit lowered as the exigencies of vote-seeking politicians render expedient. no one now questions the propriety of a government providing free education for children, but in england a father, no matter how well qualified, may now be prosecuted for educating his child himself rather than sending him to a government school to be fed as well as taught. at the marylebone police court a well known journalist and writer on education was summoned by the education department of the london county council some time ago for neglecting to send his four children to school. he was, himself, an old and experienced teacher with credentials from one of the colleges of cambridge university. he did not believe in sending his children to school until they reached the age of ten or eleven, but meanwhile he taught them himself, _viva voce_ in the open air, according to the system of froebel and pestalozzi, and endeavored to make education a delight. this was the father's chief occupation and he devoted as much time as possible to training all the mental faculties, without exhausting the nervous force or injuring the physical health, of his children. the eldest, a boy of fourteen, had contributed an article to one of the leading magazines which was pronounced by a competent editor of another periodical to be an extraordinary effort for a boy of his age. it appeared that he knew shakespeare well and was in the habit of quoting him and other poets, but that his brother, aged eleven, preferred wordsworth. he considered the english language "awkward," french "euphonious" and german "rationally spelt." it was rather a relief to find another brother, aged nine, who was deep in "robinson crusoe." a school-attendance officer, however, had reported that the children did not attend the elementary schools and the magistrate imposed fines upon the father, but, upon it appearing that he had no property, he was sentenced to imprisonment for seven days in respect of the shakespearean, and five days each to cover the lover of wordsworth and the student of defoe. a month later the father was summoned before a different magistrate in the same police court who fined him in respect of the youngest child and adjourned the hearing in order that the other three might be examined by a government inspector to ascertain whether they were being efficiently educated. this episode may not have been typical, but that it was possible in modern england illustrates how out of date is the old-fashioned conception of the personal liberty and freedom from governmental intrusion which once characterized that island as distinguished from the continent. these are but examples of a series of surrenders to the proletariat, which have practically delivered over the general government of england to the collectivists; while the education and training of many of the party managers who are responsible for it, renders incredible the excuse that they may be only fanatics. simultaneously, municipal socialism has spread in a manner affecting the public even more intimately. over three fourths of the councils--county, town, urban district and rural district--are engaged in municipal trading of various kinds, operating inefficiently and generally at a loss, such enterprises as golf links, steamboats, concert halls, motor busses, markets, trams, bath houses, gas works, libraries, telephones, milk depots, electric lighting, lodging houses, building operations, insurance--and a host of other undertakings heretofore left to private initiative. all this means an ever increasing army of officials, agents and inspectors. the interference of a paternal government is threatened or felt in every detail of existence. the people have learned to agitate collectively for advantages to be taken from some classes and distributed to others. without a constitution (for the so-called english constitution is but a misnomer for former laws and decisions which are subject to constant repeal and alteration) and without a supreme court capable of declaring wild legislation to be unconstitutional--for every act of parliament becomes a law which can never be challenged in any court--there is no brake to retard, and the politicians of all shades are left free to compete in casting one vested right after another to the mob in quest of votes. the most serious effect of all this is, probably, the tendency to weaken that sturdy self-reliance upon individual effort which has always characterized englishmen, and the encouragement of an attitude of leaning upon the government and of looking to legislation to remove all difficulties. no popular disturbance is impending--it is unnecessary, for the revolution progresses smoothly and the whole country is adjusting itself to the new order of things. the possessors of property seem singularly resigned, or at least inarticulate, and submit almost in silence to spoliation. such opposition as exists takes chiefly the form of party controversy upon details, and criticism by each faction of the steps of the other. few seem to realize how far the country has departed from its former standards or that the most moderate proposals of to-day were radical yesterday. it is a great race, this anglo-saxon, and it has shown wonderful capacity to govern itself in the past. it may prove to be wisely meeting half way an approaching avalanche of worldwide socialism destined to modify the existing order of society. or can it be that england has seen its best days? one thing, at least, is sure--the united states is at the moment infinitely more conservative than england. both are pure democracies, and therefore if the people should be resolved to abolish the rights of property as we at present know them, it would inevitably be accomplished. that the majority are really of that mind in either country is more than doubtful; but in england the politicians seem to be destroying that which it has taken centuries to build up, whereas in america this could not happen unless the conviction was so widespread, determined and permanent, as to accomplish what is apparently impossible--the radical amendment of the constitution. this digression into the field of politics is only relevant in its possible effect upon the courts. they, at present, necessarily exist in an atmosphere of confusion and of constant annihilation of rights. the head of the whole administration of law, the lord chancellor, is a political appointee changing with the parties. he appoints the other judges, the king's counsel and, directly or indirectly, he is the great source of legal advancement. true, he has for a long time been selected from the leaders of the bar so that he has been professionally well qualified. but this was not always the case and it is not necessarily a permanent condition, especially in a country passing through such fundamental changes. time alone will show whether these violent shocks will disturb the balance of the scales of justice. for the future, realizing that england is no longer conservative, but is now the land of startling experiment, it would be at least prudent to accept its political and legal precedents with caution. one sometimes hears it said that we have too many judges, and the argument is apt to be urged by the assertion that the number in a large city is as great as in all england. the natural inference is that our judges work less effectively. no statement could be based upon falser premises. the roll of judges in the high court is, indeed, a limited one and, as they try small as well as large cases, the impression might follow that they constitute the whole judicial force of england. the fact, however, is quite the reverse. taking at random the daily official cause list for london there will be found on a given day sitting at the law courts in the strand alone, twenty-one judges of the high court, eight masters, seven chancery registrars, twelve masters in chancery, three official referees, two registrars in bankruptcy and one official presiding over "companies winding up"--exactly fifty-four men simultaneously performing judicial duty in one building. each of these is holding what is practically a separate court and his title is of no significance. when one remembers that at the same time the house of lords is sitting at westminster, the judicial committee of the privy council in downing street, the four criminal courts at the old bailey, more than twenty police magistrates at bow street and elsewhere, and county courts, at bloomsbury, clerkenwell, edmonton, marylebone, shoreditch, southwark and westminster, some idea may be formed of the number of judges and courts always at work in the metropolis. innumerable courts are also sitting in the provinces, which, if less important, serve to relieve the metropolitan judges. the justices of the peace number in many counties three or four hundred and in one county about eight hundred, although most of them never attend and the work is done by comparatively few. they sit singly as committing magistrates and in groups at petty sessions and at quarter sessions. there are also a large number of borough criminal courts presided over by a recorder. besides, the county courts are over five hundred in the aggregate, though there are not so many county judges, for the smaller courts are grouped into circuits. finally, there are the assizes of the high court coming down periodically from london to try causes, both criminal and civil, all over england. thus the little island fairly bristles with tribunals and teems with judges and any criticism of american judges or of american judicial methods by such comparison would only be possible in ignorance of the facts. * * * * * in america, litigation begins in the court room; in england, it ends there. american proceedings tend to be somewhat formal, conventional, diffuse and dilatory. pitfalls and traps are occasionally laid by astute practitioners, which embarrass the side really in the right and delay a conclusion upon the merits. much is incomprehensible to the laymen concerned except the result. english legal proceedings on the contrary are colloquial, flexible, simple and prompt, thoroughly in touch with the spirit of the times and with the ordinary man's every-day life. the legal decisions of the two countries are probably of equal value, and are held in mutual respect. neither, perhaps, could claim any superiority over the other in its legal results, but in methods, england at present is far in advance. this was not always so. up to the english courts were most slow, expensive and unsatisfactory. but in these thirty-five years, reforms in methods have so progressed, step by step, that the most important action can be tried, a judgment given, appeal taken, argued and orally decided as counsel sit down--all in ninety days. the details of these improvements are too technical for the present occasion; suffice it to say that they are characterized by the utmost simplicity, and many of them are capable of adaptation with modifications to american conditions. in america, the bar is almost unorganized. it has little voice in the selection of the judges, of whose qualifications the politicians have no knowledge; it is weak in disciplining and purging itself and in commanding public respect for its rights; its standards of professional propriety are not clearly enough established, although great improvement is noticeable in all these respects. in england, the bar is well organized and governs the whole administration of the law, jealously resenting any interference with its ancient prerogatives and preserving its own professional honor. thus, a close observation of professional life in england will prove instructive and suggestive to the ever-alert american. nevertheless he will depart with a feeling that, while at home there is room for progress, yet, upon the whole, the old profession in the new world well maintains its proud position. index absence of "leader" in trial, accident cases, "tender of damages" in, admiralty, probate, divorce and admiralty division of high court, trial, advocates, solicitors as, "agency business" of solicitors, american law books in middle temple library, members of english bar, appeal, courts of, to judicial committee of privy council, to house of lords, in criminal cases, of colonial cases, appellation of judges, appointment of judges, aromatic herbs in criminal courts, assizes, "associate" or clerk of court, attorney or solicitor, bags of barristers, of solicitors, bailey, old, "bands" of k. c.'s dress, bar, american members of english, calling to, discipline of, english, size of, english, division of, make up of, parliamentary, women not eligible to, barnard's inn (chancery), barrister, "associate," "blue and red" bags of, begins by becoming "devil," chambers of, chancery, common law, desks of, dress of, fees of, formerly lived in inns, joining circuit, "juniors," "leader," "locals," master, member of inns of court, partnerships forbidden, practice of, selection of, serjeants-at-law, training of, "twelve dinners" of, upon becoming k. c., invited to join benchers, voices of, wig of, , benchers govern inns, black cap, briefs, briefs, endorsed with fees, butler's livery at old bailey, calling to bar, cambridge students exempted, censors, chambers of barristers, chancery bar, "specials," barrister of, division of high court, inns, inns formerly connected with inns of court, inns, history of, lane, lane, serjeants' inn, "leaders," chief justice, salary of, circuits of high court, clement's inn (chancery), clerk of court or "associate," clifford's inn (chancery), colonial appeals, colors of bags, "blue and red" for barristers, common juries, serjeant criminal judge, law barrister, "consolidated regulations," contingent fees not permitted, corridors of the court, costs, council of bar, general, of legal education prescribes course of studies for barrister, counsel in a cause, county courts, jurisdiction of, procedure, judges of, salaries of judges of, court appeal, central criminal (old bailey), civil, common pleas, practice formerly limited to sergeants-at-law, county, - criminal, divisional, enumerated, high, police, registrar's, room described, room, criminal court, described, vacation of, criminal law, trials, trials, appeals in, trials, comparison with american, criminal court, aromatic herbs in, central (old bailey), customs in, dock of, judges of, police, recorder, room described, devil may conduct trial, "devilling," dhingra's trial, disbarment, discipline of bar, of solicitors, divisional court, divorce, probate and admiralty division of high court, dock, in criminal court, dress of barristers, of butlers at old bailey, in criminal court, of footmen at old bailey, judges, judges (chancery), king's counsel, solicitors, - education, council on legal, governs training of barristers, employers' liability acts, english bar, size of, entrances to court room, equity trials in chancery division high court, ethics of profession, etiquette of dress enforced, fees of barrister, of sir charles russell, of sir frank lockwood, must not be contingent, paid by law students, of solicitors, of solicitors, sometimes divided, first impressions, fleet street--"old bailey," footman's livery--"old bailey," furnival's inn (chancery), general council of bar, observations, "gentleman," defined by sir thomas smith, gray's inn, - hearings in police courts, herbs used in criminal court, high court, of justice, circuits of, division of, house of lords, appeals, impressions on entering law courts' building, incorporated law society, - inns of chancery, formerly connected with inns of court, history of, "staple's," "barnard's," "clifford's," "clement's," "lyon's," "furnival's," "thavie's," "new inn," "strand," inns of court, date of origin, government of, origin of, position of, uniformity of, inns, gray's inn, inner temple, lincoln's inn, middle temple, serjeants', interior of barristers' chambers, journals, law, reports of, judges, actively conduct trials, appellation of, appointment of, chancery division, robes of, formerly in holy orders, of county courts, of county courts, salaries of, of criminal courts, robes of, salaries of, - judicial appointments, committee privy council, "junior" barrister "opens pleadings," tries case, jury, common and special, only in king's bench, qualifications of, situation and arrangement of, trials, king's bench, counsel, , counsel, robes of, counsel, routine of, counsel, "taking silk," - law courts building on strand, journals, society, solicitors' incorporated, lawyer's training, "leader," king's counsel, list of, absence of, leading questions, - lincoln's inn, - livery of footman, criminal court, local barristers, solicitors, lockwood, sir frank, fees of, london times, law reports of, long vacation, lord chancellor, appointments by, salary of, lord chief justice, lyon's inn (chancery), magna charta fixed position of courts, masters, trinity, "mess" of circuits, middle temple, described, american law books in, models much used, murder trial of madar lal dhingra, newgate prison, new inn (chancery), newspapers, law reporting in, trial of cases in, nisi prius, sittings frequent, offices of barristers in inns, old age pensions, old bailey (central criminal court), oxford students, exemptions of, parliamentary bar, partnerships of barristers forbidden, pensions, old age, police courts, porter's horn, practice of barristers, before masters, rules of, preliminary hearing in police courts, preparation of case by solicitor, "president" of probate, divorce and admiralty division, prison fever, privy council, judicial committee of, probate, divorce and admiralty division of high court, procedure in county courts, provincial courts, reading of english law student, recorder, a criminal judge, registrars' courts, registrar, a solicitor, reports of cases, robes, judges', of judges' chancery division, of king's counsel, rules of practice, russell, sir charles, fees of, salaries of judges, - of judges, county courts, of masters, serjeants-at-law, common, a criminal judge, inn, - inn, present use of, shakespeare, production of "twelfth night" in temple, sheriffs, duties in criminal court, "silk," "taking of," smith, sir thomas, definition of "gentleman," socialistic legislation, solicitors, "agents," bags of, become registrars, develop into advocates, discipline of, dress of, fees of, have no inn of court, incorporated law society governs training of solicitors, prepare cases, sphere of, training of, - "well," special juries, "specials" in the chancery courts, list of, staple's inn (chancery), strand inn (chancery), students, training of, supreme court of judicature, "taking silk," templars, knights; use of land of, by inns of court, temple, church of, inner, library of, middle, tender of damages in tort cases, thavie's inn (chancery), trade guilds organized, treasurer, executive officer of inn of court, term of, trial, - absence of "leader" in, in admiralty, before master, of criminal cases, "trinity masters," "twelfth night," produced in temple, vacations of courts, "weepers," "white book," wigs, barristers' described, witness box, situation of, witnesses, demeanor of, women, not eligible to bar, workingmen's compensation acts, transcriber's notes: the spelling "sergeant" appears once in this text on page , otherwise the word is spelled and indexed as "serjeant." there is a separate transcriber's at the end of the table of counsel that appears in chapter iv. google books library project (http://books.google.com) note: images of the original pages are available through the the google books library project. see http://books.google.com/books?vid= y s gn c&id transcriber's note: text enclosed by underscores is in italics (_italics_). atrocious judges. lives of judges infamous as tools of tyrants and instruments of oppression. compiled from the judicial biographies of john lord campbell, lord chief justice of england. with an appendix, containing the case of passmore williamson. edited, with an introduction and notes, by richard hildreth. new york and auburn: miller, orton & mulligan. new york: park row.--auburn: genesee street. . entered, according to act of congress, in the year , by richard hildreth, in the clerk's office of the district court of the district of massachusetts. stereotyped at the boston stereotype foundry. advertisement. the text of the following book of judges has been derived from lord campbell's _lives of the chief justices, and lives of the chancellors_, with only a few verbal alterations for the sake of connection, some transpositions, the omission of some details of less interest to the american reader, and the insertion of a few paragraphs, enclosed in brackets, thus [ ]. most biographers have been arrant flatterers. lord campbell is a distinguished member of that modern school, which holds that history is of no dignity nor use, except so far as it is true; and that the truth is to be told at all hazards and without reserve. hitherto social and political position, obtained no matter by what means, has in general secured not only present but future reputation. it can hardly fail to be a serious check upon those who struggle for distinction to understand, that, however they may cheat or dazzle their contemporaries, they must expect to encounter from posterity a rhadamantine judgment. the object of the present work, prepared as it is in the interest of justice and freedom, and designed to hold up a mirror to magistrates now sitting on the american bench, in which "to show virtue her own feature, scorn her own image, and the very life and body of the time his form and pressure," will, i hope, induce lord campbell to pardon the liberty i have ventured to take with his writings. r. h. boston, _november , _. contents. introduction. the administration of justice the great end of government, page . polity of the anglo-saxons, . county courts, . policy of the norman conquerors, . their scheme for the administration of justice, . aula regis, or king's court, . law proceedings become a mystery, . division of the aula regis, . king's bench, . common pleas, . exchequer, . court of chivalry, or honor court, . origin of the legal profession as it exists at present--inns of court, . special pleadings, . serjeants, barristers, and attorneys, . justices of the peace, . appeals to parliament, . trial by jury, . nisi prius trials, . usurpations of the courts upon each other, . court of chancery, . court of admiralty, . use of torture, . suits for slander in the court of chivalry, . the courts the ready tools of executive usurpation, . courts of star chamber and high commission, . sources and object of the present compilation, . bearing of the following narratives on passing events, . chapter i. roger le brabancon. his ancestry, page . made a judge, . edward i. claims sovereignty over scotland, . the family of bruce, . robert de brus, . contest for the scottish throne, . brabancon maintains edward's claim, . is rewarded with the office of chief justice, . chapter ii. robert tresilian. appointed chief justice, . ready for any dirty work, . judicial opinion in favor of the arbitrary power of the king, . preparations for judicial murders, . the barons march on london, . tresilian appealed of high treason, . found guilty, . arrest and execution, . chapter iii. thomas billing. lancastrians and yorkists, . fortescue and markham, . removal of markham, . billing a judge, . his infamous character, . his previous life, . begins a lancastrian, . the yorkists having triumphed, becomes a yorkist, . made a judge, . trial of walker, . a court favorite, . chief justice, . trial of sir thomas burdett, . lancastrian revolution, . billing changes, and keeps his place, . yorkist revolution, . billing changes again, and keeps his place, . procures a pardon for fortescue, . his law decisions, . trial of the duke of clarence, . billing's death, . chapter iv. john fitzjames. a friend of wolsey's, . who makes him attorney general, . prosecution of buckingham, . made a judge, . chief justice, . turns against wolsey after his fall, . ecclesiastical pretensions of henry viii., . trial of fisher, . trial of sir thomas more, . trials of the supposed gallants of anne boleyn, . fitzjames's opinion as to the mode of anne boleyn's execution, . his death, . chapter v. thomas fleming. a rival of bacon's, . his origin and progress, . solicitor general, . speaker of the house of commons, . bacon his rival there, . fleming chief baron of the exchequer, . his judgment in the case of impositions, . made chief justice, . case of the postnati, . trial of the countess of shrewsbury, . wholly eclipsed by sir edward coke, . his death, . chapter vi. nicholas hyde. plan of charles i. to rule without parliaments, . sir randolph crewe, chief justice, discharged to make room for hyde, . his family and previous career, . case of sir thomas darnel, . petition of right, . hyde's opinion that it would not be binding on the king, . proceedings against selden and others, . hyde's death, . much applauded by true courtiers, . chapter vii. john brampston. charles i. perseveres in his arbitrary schemes, . brampston's previous life, . appointed chief justice, . contrast between his personal and political character, . opinion in favor of ship money, . trial of hampden, . lord say's case, . trial of rev. thomas harrison, . brampston as a star chamber judge, . case of the bishop of lincoln, . long parliament, . brampston impeached, . turns about on the question of ship money, . parliament appeased, . summoned by charles to join him at his camp, . superseded, . death and character, . chapter viii. robert heath. his origin and high prerogative principles, . solicitor general, . attorney general, . his share in the trial of darnel, . holds the petition of right illegal, . his part in the trial of selden and his followers, . schemes for raising money, . chief justice of the common pleas, . his removal from office, . returns to practice, . judge of the king's bench, . chief justice, . his acts as such, . flies to the continent, . death and character, . chapter ix. robert foster. reorganization of the bench at the restoration, . foster's early life, . judge of the common pleas, . joins the king at oxford, . removed by parliament, . returns to practice, . reappointed a judge by charles ii., . chief justice, . trial of vane, . case of john crook, . case of tonge and others, . death, . chapter x. robert hyde. his connections and early history, . a judge of the common pleas, . chief justice of the king's bench--his installation, . trial of a printer, . trial of keach for libel, . introduces the practice of fining juries, . cried up as an eminent judge, . drops dead, . chapter xi. john kelynge. appointed a judge, . previous career, . conducts the prosecution of colonel hacker, . made chief justice over sir matthew hale's head, . his behavior, . moorfields rioters held guilty of treason, . american application of this doctrine, , _note_. treatment of juries, . conduct investigated by the house of commons, . tame for the rest of his days, . his reports, . chapter xii. william scroggs. his early life, . judge of the common pleas, . chief justice of the king's bench, . favors the popish plot delusion, . american counterpart of that plot, , _note_. trial of godfrey, . of others, . of bromwich, . scroggs changes his policy, . wakeman acquitted, . scroggs attacked by the mob, . his defence, . castlemaine acquitted, . trial of mrs. collier, . charges to grand juries, . attack on the press, . conduct in shaftesbury's case, . charges made to the council against scroggs, . his trial, . house of commons inquires into his conduct, . general characteristics, . removal from office, . his subsequent life, . his infamy, . chapter xiii. francis north. his noble birth, . early life, . a court keeper, . called to the bar, . his early practice, . a lickspittle, . a leader at the bar, . makes his fortune by avowing "loyal" principles, . solicitor general, . his practice, . his loves, . marriage, . insignificant as a member of parliament, . attorney general, . fees in abundance, . chief justice of the common pleas, . conduct on the bench, . career as a politician, . legal oracle of the party of arbitrary power, . proclamation against coffee houses, . petitioners and abhorrers--north obstructs the right of petition, . parliamentary proceedings against him, . draws a declaration against the popular party, . trial of college, the protestant joiner, . proceedings against shaftesbury, . attack on the municipal privileges of london, . north made lord chancellor, . his disappointment and dissatisfaction, . assists at the inauguration of saunders, . his conduct as a law reformer and equity judge, . as a statesman, . joins in the proceedings against the charter of london, . made a peer--disfranchises many towns, . dismisses burnet, . rye house plot, . jeffreys his rival, . his mortifications, . triumphs over jeffreys in the matter of the recusants, . death of charles ii., . continued in office by james ii., . puts the seal to a questionable proclamation, . parliament meets, . north snubbed, . clings to office, . still thwarted and browbeaten by jeffreys, . further mortifications, . his dejection and misery, . monmouth's insurrection, . his conduct as to the prisoners, . death and character, . jokes upon him, . his writings, . his method of living, . his domestic relations, . descendants, . his early death, . his life by roger north, . chapter xiv. edmund saunders. motives of his appointment, . early history, . called to the bar, . his practice, . his reports, . not desirous of preferment, . counsel for the crown, . advises a _quo warranto_ against the city of london, . appointed chief justice, . his conduct in the london case, . judgment of the court pronounced by justice jones, . trial of lord grey, . sudden death, . his appearance and manners, . his reports, . chapter xv. george jeffreys. his parentage, . school days, . scheme of becoming a great lawyer, . a student at the inner temple, . associates with the popular leaders, . extravagance and poverty, . precocity, . admitted to the bar, . difficulties and energy, . marriage, . practises at the old bailey and london sessions, . his forensic abilities, . common serjeant of the city of london, . his contrivances to get on, . opens a communication with the court, . recorder of london, . repudiates the liberals, . his policy as to the popish plot, . his sentences of death, . conduct in a libel case, . made chief justice of chester, . his overbearing insolence, . visits his father, . proceedings against him in parliament, . resigns his recordership, . complimented by the king, . chairman of the middlesex sessions, . counsel for the crown against fitzharris, plunkett, and college, . takes part in other court prosecutions, . rye house trials, . appointed chief justice, . trial of algernon sidney, . case of sir thomas armstrong, . of sir william williams, . charters fall like jericho, . other trials before him, . rules london with a rod of iron, . reappointed chief justice by james ii., . trial of titus oates for perjury, . baxter's trial, . jeffreys raised to the peerage, . he rivals north, . his bloody assize, . lady lisle's trial, . other incidents of the bloody assize, . proceedings at bristol, . in somersetshire, . prideaux's case, . an apologist for jeffreys, . tutchin's case, _note_, . james or jeffreys? . made lord chancellor, . hangs an alderman, . meeting of parliament, . scheme of dispensing with the test act, . opinions of the judges in favor of the dispensing power, . embassy to the pope, . court of high commission revived, . its proceedings, . lord delamere's trial, . proceedings against the fellows of magdalen college, . prosecution of the seven bishops, . rivals of jeffreys, . birth of the pretender, . william of orange lands in england, . james attempts reconciliation, . advance of william, . james flies, . terror of jeffreys, . search for him, . his arrest, . committed to the tower, . james seeks to make him a scapegoat, . assailed by the press, . presented with a halter, . petition against him, . his death, . domestic life, . his descendants, . person and manners, . merits as a civil judge, . chancery reforms, . his opinion in favor of allowing counsel to prisoners, . his infamy deserved, . chapter xvi. robert wright. his parentage, youth, vices, and marriage, . his practice, . his pecuniary embarrassments and frauds, . becomes a favorite of jeffreys, . who makes him a judge, . attends jeffreys in his bloody assize, . made chief justice, . orders an illegal execution, . aids in forcing catholic fellows on magdalen college, . sits in the court of high commission, . volunteers an extrajudicial opinion in favor of the declaration of indulgence, . attempts to force it to be read at serjeant's inn chapel, . trial of the seven bishops, . at first unmolested after william of orange lands, . arrested, and dies in newgate, . his profligacy, . necessity of exposing wicked judges, . appendix.--case of passmore williamson, - introduction hume observes, in his history of england, that "among a people who lived in so simple a manner as the anglo-saxons, the judicial power is always of greater importance than the legislative." the same comparison will hold good even in communities far more advanced in civilization than the anglo-saxons. it has indeed been well said that the great end of the complicated machinery of the existing british government is to get twelve men into a jury box. it might even be laid down as a general principle that the freedom or servitude of a people will mainly depend upon the sort of administration of justice which they have--especially of criminal justice. the whole course of british history will serve to justify this observation, since it has not been so much by the aid of mercenary soldiers, as by the assistance of lawyers and judges, that tyranny has sought to introduce itself into that country. it is in the history of the english courts, still more than in the history of the english parliament, that we are to trace the origin and growth of those popular rights and of that idea of public liberty, propagated from england to america, and upon which our anglo-american free institutions are mainly founded. the origin of british liberty, by an ancient, constant, and affectionate tradition, has uniformly been traced back to the times of the anglo-saxons. it was, however, by judicial, far more than by legislative institutions, that among those progenitors of ours private rights and public liberty were guarantied. the smallest political subdivision among the anglo-saxons was the tything, (_teothing_,) consisting of ten families, the members of which were responsible for the good conduct of each other. the head man of this community, denominated tything-elder, (_teothing ealdor_,) seems to have acted as a kind of arbitrator in settling disputes about matters of a trifling nature; but whether he had actually a court for administering justice does not appear. next in order came the hundred, (_hundrede_,) or, as it was called in the north of england, the _wapentake_, in its original constitution consisting of ten tythings, or a hundred families, associated together by a similar bond of mutual responsibility. its head man was called the hundred's elder, (_hundredes ealdor_,) or simply reeve, (_gerefa_,) that being the generic term for the officer of any district, or indeed for any officer.[ ] this gerefa, along with the bishop of the diocese, acted as the presiding officer of the hundred court, which met once at least every month, and had both civil and criminal jurisdiction, and cognizance also of ecclesiastical causes, which were entitled to precedence over every other business. there was besides a shire or county court (_shir-gemot_) held twice every year, or oftener if occasion required, convened by the sheriff, (_shir-reeve_,) or, as he was sometimes also called, the alderman, (_ealdor-man_,) who presided over it, assisted by the bishop. here causes were decided and business was transacted which affected the inhabitants of several of the hundreds. the highest court of all was that of the king, the wittenagemot, (_witan-gemot_,) in which he himself was present, attended by his councillors, or _witan_. this body, which united the functions of a legislative, judicial, and executive council, had no fixed times or place of meeting, but was held as occasion required, wherever the king happened to be. as to its judicial functions, it was in general only a court of extraordinary resort; it being a rule of the anglo-saxon law that none should apply for justice to the king unless he had first sought it in vain in the local courts.[ ] hence the hundred and county courts occupied by far the most conspicuous position in the anglo-saxon judicial polity. the anglo-saxon shires, it may be observed, having been originally principalities, nearly, if not altogether, independent, but gradually united into one kingdom, were rather tantamount to our anglo-american states than to our counties, of which the saxon hundreds may be taken as the equivalent; the tythings corresponding to our anglo-american townships; while (to carry out the parallel) the central authority of the king and the wittenagemot may be considered as represented by our federal system generally. but though the reeve and the bishop presided in the local anglo-saxon courts, it was rather in the character of moderators than of judges; that latter function being performed by the freeholders of the county, all of whom, not less than the bishop and the reeve, had the right and were bound to give their attendance at these courts. "suits," says hume,[ ] "were determined in a summary manner, without much pleading, formality, or delay, by a majority of voices;[ ] and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion." these county courts, though traces of them are to be found in all the old teutonic states of europe, became ultimately peculiar to england. none of the feudal governments of continental europe had any thing like them; and hume, with his usual sagacity, has remarked that perhaps this institution had greater effects on the political system of england than has yet been distinctly pointed out. by means of this institution, all the freeholders were obliged to take a share in the conduct of affairs. drawn from that individual and independent state, so distinctive of the feudal system, and so hostile to social order and the authority of law, they were made members of a political combination, and were taught in the most effectual manner the duty and advantages of civic obedience by being themselves admitted to a share of civic authority. perhaps, indeed, in this anglo-saxon institution of hundred and county courts we are to seek the origin of that system of local administration and self-government still more fully carried out in america than in england, by which english and anglo-american institutions are so strongly distinguished from those of europe, and in the judicious combination of which with a central administration, for matters of general concern, british and american liberty, as a practical matter, mainly consists. one of the first procedures of the norman conqueror, by way of fixing his yoke upon the shoulders of the english people, was gradually to break down and belittle this local administration of justice. he did not venture, indeed, to abolish institutions so venerable and so popular, but he artfully effected his purpose by other means. he began by separating the civil and ecclesiastical jurisdictions. the bishops, according to a fashion recently introduced on the continent, were authorized to hold special courts of their own. these courts were at first limited to cases in which ecclesiastical questions were involved, or to which clergymen were parties but by the progress of an artful system of usurpations, familiar to the courts of all ages and nations, they gradually extended their authority to many purely lay matters, under pretence that there was something about them of an ecclesiastical character. it was under this pretence that the english ecclesiastical courts assumed jurisdiction of the important matters of marriage and divorce, of wills, and of the distribution of the personal property of intestates--a jurisdiction which they still retain in england, and which, though we never had any ecclesiastical courts in the united states of america, has left deep traces upon our law and its administration as to these subjects. in establishing these separate ecclesiastical courts, the conqueror made a serious departure from his leading idea of centralization; and he thereby greatly contributed to build up a distinct theocratic power, which afterwards, while intrenching on the rights of the laity, intrenched also very seriously on the authority of his successors on the throne. but this was a danger which either he did not foresee--since he possessed, though his next successor relinquished it, the sole power of appointing bishops--or which he overlooked in his anxiety to diminish the importance of the old saxon tribunals. both the civil and criminal authority of the local courts was greatly curtailed. their jurisdiction in criminal cases was restricted to small matters, and even as to questions of property was limited to cases in which the amount in dispute did not exceed forty shillings; though, considering the superior weight of the shilling at that time, the greater comparative value in those ages of the precious metals, and the poverty of the country, this was still a considerable sum. the general plan for the administration of justice of the anglo-norman government was a court baron in each of the baronies into which the kingdom was now parcelled out, to decide such controversies as arose between the several vassals or subjects of the same barony. hundred courts and county courts still continued from the saxon times, though with restricted authority, to judge between the subjects of different baronies; and a court composed of the king's great officers to give sentence among the barons themselves. of this court, which ultimately became known as _curia regis_, (king's court,) and sometimes as _aula regis_, (king's hall,) because it was held in the hall of the king's palace, and of its instrumentality in extending the royal authority, hume[ ] gives the following account: "the king himself often sat in his court, which always attended his person: he there heard causes and pronounced judgment; and though he was assisted by the advice of the other members, it is not to be imagined that a decision could easily be obtained contrary to his inclination or opinion.[ ] in the king's absence, the chief justiciary presided, who was the first magistrate of the state, and a kind of viceroy, on whom depended all the civil affairs of the kingdom.[ ] the other chief officers of the crown, the constable, marshal, seneschal, or steward, chamberlain, treasurer, and chancellor, were members, together with such feudal barons as thought proper to attend, and the barons of the exchequer, who at first were also feudal barons appointed by the king. this court, which was sometimes called the king's court, sometimes the court of exchequer, judged in all causes, civil and criminal, and comprehended the whole business which is now shared out among four courts--the chancery, the king's bench, the common pleas, and the exchequer. "such an accumulation of powers was itself a great source of authority, and rendered the jurisdiction of the court formidable to all the subjects; but the turn which judicial trials took soon after the conquest served still more to increase its authority, and to augment the royal prerogatives. william, among the other violent changes which he attempted and effected, had introduced the norman law into england, had ordered all the pleadings to be in that tongue, and had interwoven with the english jurisprudence all the maxims and principles which the normans, more advanced in cultivation, and naturally litigious, were accustomed to observe in the administration of justice. "law now became a science,[ ] which at first fell entirely into the hands of the normans, and even after it was communicated to the english, required so much study and application that the laity of those ignorant ages were incapable of attaining it, and it was a mystery almost solely confined to the clergy, and chiefly to the monks. "the great officers of the crown, and the feudal barons who were military men, found themselves unfit to penetrate into these obscurities; and though they were entitled to a seat in the supreme judicature, the business of the court was wholly managed by the chief justiciary and the law barons, who were men appointed by the king, and entirely at his disposal. this natural course of things was forwarded by the multiplicity of business which flowed into that court, and which daily augmented by the appeals from all the subordinate judicatures of the kingdom. for the great power of the conqueror established at first in england an authority which the monarchs in france were not able to attain till the reign of st. louis, who lived near two centuries after: he empowered his court to receive appeals both from the courts of barony and the county courts, and by that means brought the administration of justice ultimately into the hands of the sovereign.[ ] "and lest the expense or trouble of the journey to court should discourage suitors and make them acquiesce in the decision of the inferior judicatures, itinerant judges were afterwards established, who made their circuits through the kingdom and tried all cases that were brought before them. by this expedient the courts of barony were kept in awe, and if they still preserved some influence it was only from the apprehensions which the vassals might entertain of disobliging their superior by appealing from his jurisdiction. but the county courts were much discredited and as the freeholders were found ignorant of the intricate principles and forms of the new law, the lawyers gradually brought all business before the king's judges, and abandoned that convenient, simple, and popular judicature." the innovations of the conqueror and his successors having reduced the old local anglo-saxon tribunals to comparative insignificance, the whole judicial authority, except that which had been seized upon by the ecclesiastical courts, remained for a hundred and fifty years after the conquest concentrated in the aula regis. but as norman and saxon became thoroughly intermixed, with the first faint dawn of modern english liberty the judicial power thus thoroughly centralized became again subdivided and distributed, though in a manner very different from that of the saxon times. the anglo-norman kings of england were perpetually on the move: the only way of disposing of the products of the landed estates which scattered over england afforded the main part of the royal revenue, was to go thither with the royal household and consume it on the spot. wherever the king went, the aula regis followed, occasioning thereby great inconvenience and delay to suitors. this was complained of as a grievance, and the barons who extorted magna charta from their reluctant sovereign insisted, among other things, that _common pleas_, that is, civil suits between man and man, should be held in some certain place. it was in this provision of magna charta that originated the english court of common pleas, which became fixed at westminster hall, the place of session of the aula regis when the king was in the vicinity of london. this court of common pleas, or common bench as it was sometimes called, seems to have been at first but a mere committee of the aula regis; and the disintegration of that tribunal, thus begun, was, on the accession of edward i. in , completed by its resolution into three or rather five distinct tribunals. of these new courts, that which more immediately represented the aula regis was the court of king's bench, which still continued to follow the king and to be held in his presence. in the language of its process, such is still supposed to be the case; but like the other english courts, it has long since been fixed at westminster hall, and admits nobody to participate in its proceedings save its own members--a chief justice, who, though of inferior position in point of precedence, may be considered as in some respects the successor of the chief justiciary, which office was now abolished--and three or four puisne judges, the number having varied at different times. the court of common pleas was now also organized like the king's bench, with a chief justice and three or four puisne judges. as this court had exclusive jurisdiction of civil suits, (except those relating to marriage, divorce, wills, tithes, and the distribution of the personal property of intestates, which had been usurped by the ecclesiastical courts,) _pleas of the crown_, that is, the criminal jurisprudence of the realm, (except prosecutions for heresy, of which the ecclesiastical courts claimed jurisdiction,) and also the hardly less important duty of superintending the other tribunals, even the common pleas itself, and keeping them within their due limits, was assigned to the king's bench. to a third court, that of exchequer, of which, besides a chief baron and three or four puisne barons, the treasurer and the chancellor of the exchequer originally formed a part, were assigned all cases touching the king's revenue, and especially the collection of debts due to him, in which light were regarded not only all fines, forfeitures, and feudal dues, but the imposts and aids occasionally granted by parliament. there was also a court of chivalry or "honor court," presided over by the constable and marshal, and having jurisdiction of all questions touching rank and precedency; and another, over which the steward of the household presided, to regulate the king's domestic servants; but these courts, which have long since vanished, could never be considered as having stood on a par with the three others, the judges of which esteemed themselves the grand depositaries of the knowledge of the common or unwritten law of england; that is, of such customs and forms as had obtained the force of law previous to the existence of the regular series of statutes beginning with magna charta. indeed, these judges of england, as they were called, were in the habit of meeting together in the exchequer chamber, for the purpose of hearing arguments on law points of importance or difficulty, adjourned thither for their consideration, and which they decided by a majority of their whole number present, thus presenting down to the recent abolition, or rather modification, of the court of exchequer chamber, a shadow, as it were, of the ancient aula regis. already, previous to this fracture of the aula regis into the various courts above named, the legal profession, so far as practice in the lay courts was concerned, had begun to separate itself from the clerical; and places for the education and residence of a class of laymen who began to devote themselves to the study of the common law were established in the vicinity of westminster hall. of these, lincoln's inn, founded at the commencement of the reign of edward ii., (about a. d. ,) under the patronage of william earl of lincoln, who gave up his own hostel or town residence for that purpose, was the earliest, and has always remained the principal. on this model were established before long the inner and middle temple, (so called because a residence of the knights templars, forfeited by the dissolution of that order, had been devoted to this purpose,) gray's inn, serjeant's inn, and the inns of chancery. such was the origin of the profession of law as it still exists in england and america; of that body of lawyers whence all our judges are taken, arrogating to itself, after the example of the churchmen, of which it originally consisted, a certain mystical enlightenment and superiority, scouting the idea that the laity, as the lawyers too affect to distinguish all persons not of their cloth,--in plain english, _the people_,--should presume to express or to entertain any independent opinion upon matters of law, or that any body not a professional lawyer can possibly be qualified for the comprehension, and much less for the administration, of justice. in the anglo-saxon courts the parties had appeared personally, and pleadings had been oral. the anglo-norman practice gave rise to appearance by attorney in all civil cases, and to that system of special written pleadings, prepared by counsel learned in the law, of which the operation was to give the victory to ingenuity and learning rather than to right, and which, after undergoing many modifications, has at length been abolished in many of our anglo-american states, as an impediment to justice and an intolerable nuisance. even in conservative england itself, though the system of special pleadings, greatly modified by modern changes, still exists, the recent return, by the examination of the parties, to the old popular system of oral pleading has been attended by the happiest results. the preparation of these written pleadings, by which we are here to understand not arguments, but allegations of facts relied upon by the respective parties, was engrossed by the serjeants at law, whose distinguishing badge was a coif or velvet cap--wigs being a comparatively modern invention. to obtain admittance into this order, by which the entire practice of the court of common pleas was engrossed, (that is, originally, the entire practice in civil suits,) and from which the judges were exclusively selected, sixteen years' study was required. the degree of barrister, or, as it was called, of apprentice, might be obtained by seven years' study; and it was to these two classes of serjeants and apprentices that the practice in the courts of westminster hall was originally confined.[ ] but subsequently there sprang up a third inferior and still more numerous class, called attorneys, a sort of middle-men between the client and his counsel, not permitted to speak in court, for which purpose they must retain a serjeant or barrister, but upon whom was shifted off all the drudgery and responsibility of preparing the case, in which, however, no step of consequence could be taken without the advice of counsel learned in the law, _i. e._, a serjeant or barrister.[ ] as the law and its practice thus became more and more a mystery, only to be learned by frequenting the courts of westminster hall, and by the study of the obscure and ill-prepared reports of their proceedings, which began now to be compiled by official reporters, and published under the name of year books, the old local anglo-saxon courts fell still more into contempt. already in the reign of henry iii. the freeholders had been released from their obligation of attendance upon them, and another blow was given to these ancient tribunals when, in the reign of edward ii., the appointment of sheriffs, hitherto chosen by the freeholders, was assumed by the crown; and still another when, in the following reign, the election of conservators of the peace was also taken from the people and assumed by the king. to the magistrates thus appointed by the king the new name of justices of the peace was soon afterwards given, and the criminal jurisdiction conferred upon them, whether acting singly as examining and committing magistrates, or met together at the courts of quarter sessions, gradually superseded the small remains of criminal authority hitherto left to the old popular tribunals. two circumstances, however, combined to transfuse a certain portion of the spirit of these old tribunals into the newly established courts, thus standing in the way of the entire monopoly of the administration of justice at which the lawyers aimed, and securing to the body of the people a certain participation in the most important function of the government, to wit, the administration of justice; which participation, derived from the old anglo-saxon customs, and transmitted to our times, constitutes to-day the main pillar of both british and american liberty. contemporaneously with the new organization above described of the courts of common law, the british parliament had taken upon itself that organization which it still retains--an upper house, (house of lords,) composed of great nobles and bishops,[ ] successor of the anglo-saxon wittenagemote and of the anglo-norman great council, and a lower house, (house of commons,) in which met together the elected representatives of the smaller landed proprietors, holding by knight's service immediately of the crown, (knights of the shire,) together with the newly-admitted representatives of the cities and chief towns, (burgesses.) the parliament thus constituted claimed and exercised, probably as successor of the wittenagemote, appellate jurisdiction from the decisions of all the courts of law. in the time of edward iii. it was even a common practice for the judges, when any question of difficulty arose in their several courts, to take the advice of parliament on it before giving judgment. thus in a case mentioned in the year book, ed. iii., thorpe, chief justice of the king's bench, went with another judge to the house of lords, to inquire the meaning and effect of a law they had just passed for amending the system of pleadings;[ ] and many other instances occur of the same sort. this appellate power vesting in parliament from the decisions of all the courts was the first of the circumstances above alluded to as serving to prevent the monopoly of the administration of justice by the lawyers. but this check with the process of time has almost entirely disappeared. in england this appellate power in parliament has long since fallen into the hands exclusively of the house of lords, who themselves in giving judgment are ordinarily only the mouthpiece of the judges called in to give their advice. in what are now the united states of america the same appellate jurisdiction was originally exercised by the colonial assemblies. with us, however, it has entirely vanished under the influence of the idea of a total separation of the legislative, executive, and judicial functions. the other, and by far the most important check upon the monopoly of the lawyers, was the introduction and gradual perfecting of the trial by jury, by which the more ancient methods--the compurgation and ordeal of the anglo-saxons, and the trial by battle, the favorite method of the anglo-normans--were entirely superseded. the history of the trial by jury is exceedingly obscure. the petit jury may, however, be traced back to the old anglo-saxon method of trial by compurgation, the jury in its origin being only a body of witnesses drawn from the vicinage, who founded their verdict not upon the evidence of witnesses given before them, but upon their own personal knowledge of the matters in dispute.[ ] the grand jury seems to have originated in the old anglo-saxon custom imbodied in one of the laws of ethelred, by which was imposed upon the twelve senior thanes of every hundred the duty of discovering and presenting the perpetrators of all crimes within their district--a custom revived by the constitution of clarendon, enacted a. d. , by which twelve lawful men of the neighborhood were to be sworn by the sheriff, on the requisition of the bishop, to investigate all cases of suspected criminality as to which no individual dared to make an accusation. at first this accusing jury seems also to have served the purpose of a jury of trial. in what way the grand jury came to be separated from the petit jury, and how the former came to be increased to a number not exceeding twenty-three, of whom at least twelve must concur in order to find an indictment, is a point which still remains for the investigation of legal antiquaries.[ ] the trial by jury, though of the progress of its development little is known, appears to have taken on substantially its existing form, both in civil and criminal cases, nearly contemporaneously with the new organization of the english courts, with the rise of the legal profession as distinct from that of the clergy, and with the commencement of the series of english statutes and law reports--all of which, as well as the existing constitution of the british house of commons, may be considered as dating from the accession of edward i., a. d. , or somewhat less than six hundred years ago. in certain cases of great importance this trial took place and still takes place in bank, as it is called; that is, in westminster hall, before all the judges of the court in which the suit is pending;[ ] but in general, the trial is had in the county in which (if a criminal case) the offence had been committed, or (if a civil case) in which the venue is laid, before certain commissioners sent into the counties for that purpose, and who, under the new system, were the successors of the justices in eyre, or itinerant justices, who had formed a part of the ancient aula regis. originally, separate commissions appear to have issued for criminal and civil cases--for the former a commission of oyer and terminer, (to hear and determine,) and of general jail delivery; and for the latter a commission of assize, so called from the name of a peculiar kind of jury trial introduced as a substitute for trial by battle, in real actions, that is, pleas relating to land, villainage, and advowsons. in the times in which land, villains, and the right of presentation to parishes, constituted the chief wealth, these real actions constituted also the chief business of the common pleas, which then had exclusive jurisdiction of civil controversies; but to this commission of assize was annexed another, called a commission of _nisi prius_, authorizing the commissioners to try all questions of fact arising in any of the courts of westminster. this latter commission was so called because the writ issued to the sheriff of the county in which the cause of action was alleged to have originated, to summon a jury to try the case, directed such jury to be summoned to appear at westminster on a day named, unless before (in latin, _nisi prius_) that day commissioners should come into the county to try the case there. hence the term _nisi prius_ employed by lawyers to designate a trial by jury before one or more judges, commissioned to hold such trials within certain circuits, but whose directions to the jury, and other points of law decided by them in the course of the trial, are liable afterwards to be reviewed by the whole bench. ultimately these commissions for both criminal and civil trials were given to the same persons, who also received a commission of the peace; and the whole territory of england being divided into six circuits, two of the judges, to whom other assessors were added, held assizes twice a year in each county,[ ] for the trial of issues found in westminster hall--a system closely imitated in all our american states. but the distribution of authority above described as having been originally made to the different courts of westminster hall, into which the aula regis was divided, did not long remain undisturbed. courts have at all times, and every where, exhibited a great disposition to extend their jurisdiction, of which we have already had an example in the authority over marriages, wills, and the personal property of intestates, assumed by the english ecclesiastical courts; and considering the double jurisdiction under which we citizens of the united states live,--that of the federal and that of the state courts,--and the disposition so strongly and perseveringly exhibited by the federal courts to enhance their authority, while the state courts continue to grow weaker and tamer, this is, to us, a subject of no little interest. besides the general love of extending their jurisdiction characteristic of all courts, and indeed only one of the manifestations of the universal passion for power, the english courts of king's bench and exchequer had a special motive for seeking to encroach on the exclusive civil jurisdiction of the common pleas. the salaries of the judges were very small--originally only sixty marks, equal to £ sterling, or about $ a year; nor was their amount materially increased down to quite recent times; but to this small salary were added fees paid by the parties to the cases tried before them; and the judges of the two other courts were very anxious to share with their brethren of the common pleas a part of the rich harvest which their monopoly of civil cases enabled them to reap from that source. not only did the court of king's bench start the idea that all suits in which damages were claimed for injuries to person or property, attended by violence or fraud, came properly within its jurisdiction as "savoring of criminality;" it found another reason for extending its jurisdiction, by suggesting that when a person was in the custody of its officers, he could not, with a due regard to "legal comity," be sued on any personal claim in any other court, since that might result in his being taken out of the hands of their officer who already had him in custody, and was entitled to keep him. if any body had any claim against such a person, (such was the position plausibly set up,) it ought to be tried before the court in whose custody he already was. having thus prepared the way, the court of king's bench did not stop here; but by a fiction, introduced into the process with which the suit was commenced, that the defendant was already in the custody of their marshal for a fictitious trespass which he was not allowed to deny, jurisdiction was gradually assumed in all private suits except real actions. the court of exchequer in like manner claimed exclusive jurisdiction of suits for debt brought by the king's debtors, since by neglecting to pay them they might be prevented from paying their debts to the king; and under the pretence, which nobody was allowed to dispute, that all plaintiffs were the king's debtors, that court, too, gave an extent to their jurisdiction similar to that of the king's bench. the exclusive jurisdiction of real actions, which alone remained to the common pleas, by the disappearance of villainage and the great increase of personal property, every day declined in importance; but even this was at last taken from the common pleas by the invention of chief justice rolle, during the time of the commonwealth, of the action of ejectment, which proceeds from beginning to end upon assumptions entirely fictitious, but which by its greater convenience entirely superseded real actions in england and in most of the anglo-american states. but while these three common law courts were thus exercising their ingenuity to intrench upon each other's jurisdiction, their pertinacious adherence to powers and technicalities, and their unwillingness, except in matters where the alleged prerogative of the crown was concerned, to do any thing not sanctioned by precedent, led them to refuse justice or relief to private suitors in many crying cases. such cases still continued to be brought by petition before the king, and by him were referred to his chancellor, who in the earlier times was commonly his confessor, and who since the abolition of the office of chief justiciary had become the first official of the realm. undertaking in these cases to prevent a failure of justice by rising above the narrow technicalities of the common law, and guided by the general principles of equity and good conscience, the chancellor gradually assumed a most important jurisdiction, which in civil matters ultimately raised his court to a rank and importance above that of all the others. with the advance indeed of wealth and civilization, appeals to chancery became more and more frequent; and if the common law courts had not altered their policy, and adopted upon many points equitable ideas, it seems probable that so far as civil suits were concerned, those courts would long since have been superseded altogether.[ ] what indeed of and the practice in the equity court entirely into the hands of lawyers bred in westminster hall, by whom equity itself was made subservient to precedent, and the whole procedure involved in forms and technicalities even more dilatory and expensive than those of the common law courts. the same disinclination on the part of these common law courts to go beyond the strict limit of technical routine, led, with the progress of commerce and navigation, to the erection, in the time of edward iii., of the admiralty court, mainly for the trial of injuries and offences committed on the high seas, of which, on technical grounds, the courts of common law declined to take jurisdiction. after the foundation of english colonies,[ ] branches of this court, to which also was given an exchequer jurisdiction, were established in the colonies, and on that model have been formed our federal district courts. while the common law courts, through their preference of technicalities to justice, thus enabled the chancellors to assume a civil jurisdiction by which they themselves were completely overshadowed, driving the parliament also to the necessity of creating, for both civil and criminal matters, a new court of admiralty,[ ] they gave at the same time the support of their acquiescence and silence to other innovations, prompted not by public convenience, but by the very spirit of tyranny. in every reign, at least from the time of henry vi. down to that of charles i., torture to extort confessions from those charged with state crimes was practised under warrants from the privy council. in the year , by the advice of lord bacon, then attorney general, the lustre of whose philosophical reputation is so sadly dimmed by the infamy of his professional career, torture of the most ruthless character was employed upon the person of peacham, a clergyman between sixty and seventy years of age, to extort confessions which might be used against him in a trial for treason, as to his intentions in composing a manuscript sermon not preached nor shown to any body, but found on searching his study, some passages of which were regarded as treasonable, because they encouraged resistance to illegal taxes. thirteen years afterwards, when it was proposed to torture fenton, the assassin of villiers, duke of buckingham, to extort from him a confession of his accomplices, the prisoner suggested that if tortured he might perhaps accuse archbishop laud himself. upon this, some question arose as to the legality of torture; and the judges being called upon for their advice, thus at length driven to speak, delivered a unanimous opinion that the prisoner ought not to be tortured, because no such punishment was known or allowed by the english law; which english law, it now appeared, had for two hundred years been systematically disregarded under the eye and by the advice of judges and sworn lawyers, members of the privy council, and without any protest or interference on the part of the courts! another instance of similar acquiescence occurred in regard to the court of chivalry, which in the reign of charles i. undertook to assume jurisdiction in the case of words spoken. thus a citizen was ruinously fined by that court because, in an altercation with an insolent waterman, who wished to impose upon him, he deridingly called the swan on his badge a "goose." the case was brought within the jurisdiction of the court, by showing that the waterman was an earl's servant, and that the swan was the earl's crest, the heavy fine being grounded on the alleged "dishonoring" by the citizen of this nobleman's crest. a tailor, who had often very submissively asked payment of his bill from a customer of "gentle blood" whose pedigree was duly registered at the herald's college, on a threat of personal violence for his importunity, was provoked into saying that "he was as good a man as his debtor." for this offence, which was alleged to be a levelling attack upon the aristocracy, he was summoned before the earl marshal's court, and mercifully dismissed with a reprimand--_on releasing the debt_! no aid could be obtained from the common law courts against this scandalous usurpation, by which, without any trial by jury, enormous damages were given.[ ] legal "comity" perhaps prevented any interference. presently, however, the long parliament met, and a single resolution of that body stopped forever this usurpation. but while a scrupulous adherence to technicalities and to legal etiquette prevented the common law courts, on the one hand, from doing justice in private cases, and on the other from guarding the subject against official injuries and usurpations, they showed themselves, as the following biographies will prove, the ready and willing tools on all occasions of every executive usurpation. if the people of great britain and america are not at this moment slaves, most certainly, as the following biographies will prove, it is not courts nor lawyers that they have to thank for it. how essential to liberty is the popular element in the administration of criminal law--how absolutely necessary is the restraint of a jury in criminal cases--was most abundantly proved by the proceedings of the english courts of star chamber and high commission. the court of star chamber, though of very ancient origin, derived its chief importance from statutes of henry vii. and henry viii., by which it was invested with a discretionary authority to fine and imprison in all cases not provided for by existing laws, being thus erected, according to the boasts of coke and bacon, into a "court of criminal equity." the court of high commission, whose jurisdiction was mainly limited to clergymen, was created by a statute of elizabeth as the depository of the ecclesiastical authority as head of the church assumed after the reformation by the english sovereigns. both these courts consisted of high officers of the crown, including judges and crown lawyers; and though not authorized to touch life or member, they became such instruments of tyranny as to make their abolition one of the first things done after the meeting of the long parliament. the only american parallel to these courts is to be found in the authority conferred by the fugitive act of , upon certain commissioners of the circuit court of the united states, to seize and deliver over to slavery peaceable residents in their respective states, without a jury, and without appeal. history is philosophy teaching by example. from what judges have attempted and have done in times past, and in england, we may draw some pretty shrewd conclusions as to what, if unchecked, they may attempt, and may do, in times present, and in america. nor let any man say that the following pages present a collection of judicial portraits distorted and caricatured to serve an occasion. they have been borrowed, word for word, from the _lives_ of the chief justices and of the chancellors of england, by lord campbell, himself a lawyer and a judge, and though a liberal-minded and free-spoken man, by no means without quite a sufficient share of the _esprit du corps_ of the profession. derived from such a source, not only may the facts stated in the following biographies be relied upon, but the expressions of opinion upon points of law are entitled to all the weight of high professional authority. nor let it be said that these biographies relate to ancient times, and can have no parallelism, or but little, to the present state of affairs among us here in america. the times which they include are the times of the struggle in great britain between the ideas of free government and attempts at the establishment of despotism; and that struggle is precisely the one now going on among us here in america, with this sole difference, that over the water, among our british forefathers, it was the despotism of a monarch that was sought to be established; here in america, the despotism of some two hundred thousand petty tyrants, more or less, in the shape of so many slaveholders, who, not content with lording it over their several plantations, are now attempting, by combination among themselves, and by the aid of a body of northern tools and mercenaries, such as despots always find, to lord it over the union, and to establish the policy of slaveholding as that of the nation. in great britain, the struggle between despotism and free institutions closed with the revolution of , with which these biographies terminate. since that time the politics of that country have consisted of hardly more than of jostlings between the ins and the outs, with no very material variance between them in their social ideas. among us the great struggle between slaveholding despotism and republican equality has but lately come to a head, and yet remains undetermined. it exhibits, especially in the conduct of the courts and the lawyers, many parallels to the similar struggle formerly carried on in great britain. that struggle terminated at last with the deposition and banishment of the stuart family, and the reëstablishment in full vigor of the ancient liberties of england, as embodied in the bill of rights. and so may ours terminate, in the reduction of those who, not content with being brethren seek to be masters, to the republican level of equal and common citizenship, and in the reëstablishment of emancipation, freedom, and the rights of man proclaimed in our declaration of independence, as the national and eternal policy of these united states! atrocious judges. chapter i. roger le brabacon. roger le brabacon,[ ] from the part he took in settling the disputed claim to the crown of scotland, is an historical character. his ancestor, celebrated as "the great warrior," had accompanied the conqueror in the invasion of england, and was chief of one of those bands of mercenary soldiers then well known in europe under the names (for what reason historians are not agreed) of routiers, cottereaux, or _brabançons_.[ ] being rewarded with large possessions in the counties of surrey and leicester, he founded a family which flourished several centuries in england, and is now represented in the male line by an irish peer, the tenth earl of meath. the subject of the present sketch, fifth in descent from "the great warrior," changed the military ardor of his race for a desire to gain distinction as a lawyer. he was regularly trained in all the learning of "essions" and "assizes," and he had extensive practice as an advocate under lord chief justice de hengham. on the sweeping removal of almost all of the judges in the year ,[ ] he was knighted, and appointed a puisne justice of the king's bench, with a salary--which one would have thought must have been a very small addition to the profits of his hereditary estates of _l._ _s._ _d._ a year. he proved a most admirable judge;[ ] and, in addition to his professional knowledge, being well versed in historical lore, he was frequently referred to by the government when negotiations were going on with foreign states. edward i., arbitrator by mutual consent between the aspirants to the crown of scotland, resolved to set up a claim for himself as liege lord of that kingdom, and brabacon was employed, by searching ancient records, to find out any plausible grounds on which the claim could be supported. he accordingly travelled diligently both through the saxon and norman period, and--by making the most of military advantages obtained by kings of england over kings of scotland, by misrepresenting the nature of homage which the latter had paid to the former for possessions held by them in england, and by blazoning the acknowledgment of feudal subjection extorted by henry ii. from william the lion when that prince was in captivity, without mentioning the express renunciation of it by richard i.--he made out a case which gave high delight to the english court. edward immediately summoned a parliament to meet at norham, on the south bank of the tweed, marched thither at the head of a considerable military force, and carried mr. justice brabacon along with him as the exponent and defender of his new _suzeraineté_. it is a little curious that one of these competitors for the scottish throne had lately been an english judge, and a competitor for the very place to which brabacon, for his services on this occasion, was presently promoted. from the time of william the conqueror and malcolm canmore, until the desolating wars occasioned by the dispute respecting the right of succession to the scottish crown, england and scotland were almost perpetually at peace; and there was a most familiar and friendly intercourse between the two kingdoms, insomuch that nobles often held possession in both, and not unfrequently passed from the service of the one government into that of the other. the norman knights, having conquered england by the sword, in the course of a few generations got possession of a great part of scotland by marriage. they were far more refined and accomplished than the caledonian thanes; and, flocking to the court of the scottish kings, where they made themselves agreeable by their skill in the tournament, and in singing romances, they softened the hearts and won the hands of all the heiresses. hence the scottish nobility are almost all of norman extraction; and most of the great families in that kingdom are to be traced to the union of a celtic heiress with a norman knight. robert de brus, or bruis, (in modern times spelt _bruce_,) was one of the companions of the conqueror; and having particularly distinguished himself in the battle of hastings, his prowess was rewarded with no fewer than ninety-four lordships, of which skelton, in yorkshire, was the principal. robert, the son of the first robert de brus, married early, and had a son, adam, who continued the line of de brus of skelton. but becoming a widower while still a young man, to assuage his grief, he paid a visit to alexander i., then king of scots, who was keeping his court at stirling. there the beautiful heiress of the immense lordship of annandale, one of the most considerable fiefs held of the crown, fell in love with him; and in due time he led her to the altar. a scottish branch of the family of de brus was thus founded under the designation of lords of annandale. the fourth in succession was "robert the noble," and he raised the family to much greater consequence by a royal alliance, for he married isabel, the second daughter of prince david, earl of huntingdon, grandson of david i., sometimes called st. david. robert, son of "robert the noble" and the scottish princess, was born at the castle of lochmaben, about the year . the skelton branch of the family still flourished, although it became extinct in the next generation. at this time a close intercourse was kept up between "robert the noble" and his yorkshire cousins; and he sent his heir to be educated in the south under their auspices. it is supposed that the youth studied at oxford; but this does not rest on any certain authority. in , his father died, and he succeeded to the lordship of annandale. one would have expected that he would now have settled on his feudal principality, exercising the rights of _furca et fossa_, or "pit and gallows," which he possessed without any limit over his vassals; but by his english education he had become quite an englishman, and, paying only very rare visits to annandale, he sought preferment at the court of henry iii. what surprises us still more is, that he took to the gown, not the sword; and instead of being a great warrior, like his forefathers and his descendants, his ambition seems to have been to acquire the reputation of a great lawyer. there can be little doubt that he practised as an advocate in westminster hall from till . in the latter year we certainly know that he took his seat on the bench as a puisne judge, or justiciar; and, from thence till , extant records prove that payments were made for assizes to be taken before him--that he acted with other justiciars in the levying of fines--and that he went circuits as senior judge of assize. in the th year of henry iii. he had a grant of _l._ a year salary, which one would have supposed could not have been a great object to the lord of annandale. in the barons' wars, he was always true to the king; and although he had no taste for the military art, he accompanied his royal master into the field, and was taken prisoner with him at the battle of lewes. the royal authority being reëstablished by the victory at evesham, he resumed his functions as a puisne judge; and for two years more there are entries proving that he continued to act in that capacity. at last, on the th of march, , henry iii., he was appointed "capitalis justiciarius ad placita coram rege tenenda," (chief justiciary for holding pleas before the king); but unless his fees or presents were very high, he must have found the reward of his labors in his judicial dignity, for his salary was very small. hugh bigod and hugh le despencer had received marks a year, "ad se sustentandum in officio capitalis justitiarii angliæ," (for sustaining themselves in the office of chief justice of england,) but chief justice de brus was reduced to marks a year; that is, _l._ _s._ _d._ yet such delight did he take in playing the judge, that he quietly submitted both to loss of power and loss of profit. he remained chief justice till the conclusion of this reign, a period of four years and a half, during which he alternately went circuits and presided in westminster hall. none of his decisions have come down to us, and we are very imperfectly informed respecting the nature of the cases which came before him. the boundaries of jurisdiction between the parliament, the aula regis, and the rising tribunal afterwards called the court of king's bench, seem to have been then very much undefined. on the demise of the crown, robert de brus was desirous of being reappointed. he was so much mortified by being passed over, that he resolved to renounce england forever; and he would not even wait to pay his duty to edward i., now returning from the holy wars. the ex-chief justice posted off for his native country, and established himself in his castle of lochmaben, where he amused himself by sitting in person in his court baron, and where all that he laid down was, no doubt, heard with reverence, however lightly his law might have been dealt with in westminster hall. occasionally he paid visits to the court of his kinsman, alexander iii., but he does not appear to have taken any part in scottish politics till the untimely death of that monarch, which, from a state of peace and prosperity, plunged the country into confusion and misery. there was now only the life of an infant female, residing in a distant land, between him and his plausible claim to the scottish crown. he was nominated one of the negotiators for settling the marriage between her and the son of edward i., which, if it had taken place, would have entirely changed the history of the island of great britain. from his intimate knowledge both of scotland and england, it is probable that the "articles" were chiefly of his framing, and it must be allowed that they are just and equitable. for his own interest, as well as for the independence of his native country, he took care to stipulate that, "failing margaret and her issue, the kingdom of scotland should return to the nearest heirs, to whom of right it ought to return, wholly, freely, absolutely, and without any subjection." the maid of norway having died on her voyage home, the ex-chief justice immediately appeared at perth with a formidable retinue, and was in hopes of being immediately crowned king at scone;--and he had nearly accomplished his object, for john baliol, his most formidable competitor in point of right, always feeble and remiss in action, was absent in england. but, from the vain wish to prevent future disputes by a solemn decision of the controversy after all parties should have been heard, the scotch nobility in an evil hour agreed to refer it, according to the fashion of the age, to the arbitration of a neighboring sovereign, and fixed upon edward i. of england, their wily neighbor. the scottish nobles being induced to cross the river tweed, and to assemble in the presence of edward, under pretence that he was to act only as arbitrator, sir roger de brabacon by his order addressed them in french, (the language then spoken by the upper classes both in scotland and england,) disclosing the alarming pretensions about to be set up. a public notary and witnesses were in attendance, and in their presence the assumed vassals were formally called upon to do homage to edward as their _suzerain_, of which a record was to be made for a lasting memorial. the scots saw too late the imprudence of which they had been guilty in choosing such a crafty and powerful arbitrator. for the present they refused the required recognition, saying that "they must have time for deliberation, and to consult the absent members of their different orders." brabacon, after advising with the king, consented that they should have time until the following day, and no longer. they insisted on further delay, and showed such a determined spirit of resistance, that their request was granted and the first day of june following was fixed for the ceremony of the recognition. brabacon allowed them to depart; and a copy of his paper, containing the proofs of the alleged _superiority_ and _direct dominion_ of the english kings over scotland, was put into their hands. he then returned to the south, where his presence was required to assist in the administration of justice, leaving the chancellor burnel to complete the transaction. although the body of the scottish nobles, as well as the body of the scottish people, would resolutely have withstood the demand, the competitors for the throne, in the hopes of gaining edward's favor, successively acknowledged him as their liege lord, and their example was followed by almost the whole of those who then constituted the scottish parliament.[ ] bruce afterwards pleaded his own cause with great dexterity, and many supposed that he would succeed. upon the doctrine of _representation_, which is familiar to us, baliol seems clearly to have the better claim, as he was descended from the eldest daughter of the earl of huntingdon: but bruce was one degree nearer the common stock; and this doctrine, which was not then firmly established, had never been applied to the descent of the crown. when edward i. determined in favor of baliol, influenced probably less by the arguments in his favor than by the consideration that from the weakness of his character he was likely to be a more submissive vassal, robert de brus complained bitterly that he was wronged, and resolutely refused to acknowledge the title of his rival. he retired in disgust to his castle of lochmaben, where he died in november, . while resident in england, he had married isabel, daughter of gilbert de clare, earl of gloucester, by whom he had several sons. robert, the son of robert the eldest, became robert i. of scotland, and one of the greatest of heroes. when judgment had been given in favor of baliol, brabacon was still employed to assist in the plan which had been formed to bring scotland into entire subjection. there being a meeting at newcastle of the nobles of the two nations, when the feudatory king did homage to his liege lord, complaint was made by roger bartholomew, a burgess of berwick, that certain english judges had been deputed to exercise jurisdiction on the north bank of the tweed. edward referred the matter to brabacon and other commissioners, commanding them to do justice according to the laws and customs of his kingdom. a petition was then presented to them on behalf of the king of scotland, setting forth edward's promise to observe the laws and customs of that kingdom, and that pleas of things done there should not be drawn to examination elsewhere. brabacon is reported thus to have answered:-- "this petition is unnecessary, and not to the purpose; for it is manifest, and ought to be admitted by all the prelates and barons, and commonalty of scotland, that the king, our master, has performed all his promises to them. as to the conduct of his judges, lately deputed by him as superior and direct lord of that kingdom, they only represent his person; he will take care that they do not transgress his authority, and on appeal to him he will see that right is done. if the king had made any temporary promises when the scottish throne was vacant, in derogation of his just _suzeraineté_, by such promises he would not have been restrained or bound."[ ] encouraged by this language, macduff, the earl of fife, entered an appeal in the english house of lords against the king of scotland; and, on the advice of brabacon and the other judges, it was resolved that the respondent must stand at the bar as a vassal, and that, for his contumacy, three of his principal castles should be seized into the king's hands. although historians who mention these events designate brabacon as "grand justiciary," it is quite certain that, as yet, he was merely a puisne judge; but there was a strong desire to _reward_ him for his services, and, at last, an opportune vacancy arising, he was created chief justice of the king's bench. of his performances in this capacity we know nothing, except by the general commendation of chroniclers; for the year books, giving a regular account of judicial decisions, do not begin till the following reign. on the accession of edward ii., brabacon was reappointed chief justice of the king's bench, and he continued very creditably to fill the office for eight years longer. he was fated to deplore the fruitless result of all his efforts to reduce scotland to the english yoke robert bruce being now the independent sovereign of that kingdom, after humbling the pride of english chivalry in the battle of bannockburn.[ ] at last, the infirmities of age unfitting brabacon for the discharge of judicial duties, he resigned his gown; but, to do him honor, he was sworn a member of the privy council, and he continued to be treated with the highest respect till his death, which happened about two years afterwards. chapter ii. robert tresilian. we next come to a chief justice who actually suffered the last penalty of the law--and deservedly--in the regular administration of retributive justice--sir robert tresilian--hanged at tyburn. i can find nothing respecting his origin or education, except a doubtful statement that he was of a cornish family, and that he was elected a fellow of exeter college, oxford, in . the earliest authentic notice of him is at the commencement of the reign of richard ii., when he was made a serjeant at law, and appointed a puisne judge of the court of king's bench. the probability is, that he had raised himself from obscurity by a mixture of good and evil arts. he showed learning and diligence in the discharge of his judicial duties; but, instead of confining himself to them, he mixed deeply in politics, and showed a determination, by intrigue, to reach power and distinction. he devoted himself to de vere, the favorite of the young king, who, to the great annoyance of the princes of the blood, and the body of the nobility, was created duke of ireland, was vested for life with the sovereignty of that island, and had the distribution of all patronage at home. by the influence of this minion, tresilian, soon after the melancholy end of sir john cavendish,[ ] was appointed chief justice of the king's bench; and he was sent into essex to try the rebels. the king accompanied him. it is said that, as they were journeying, "the essex men, in a body of about , addressed themselves barefoot to the king for mercy, and had it granted upon condition that they should deliver up to justice the chief instruments of stirring up the rebellion; which being accordingly done, they were immediately tried and hanged, ten or twelve on a beam, at chelmsford, because they were too many to be executed after the usual manner, which was by beheading." tresilian now gained the good graces of michael de la pole, the lord chancellor, and was one of the principal advisers of the measures of the government, being ever ready for any dirty work that might be assigned to him. in the year , it was hoped that he might have got rid, by an illegal sentence, of john of gaunt, who had become very obnoxious to the king's favorites. but the plot got wind, and the duke, flying to pontefract castle, fortified himself there till his retainers came to his rescue. in the following year, when there was a change of ministry, tresilian was in great danger of being included in the impeachment which proved the ruin of the chancellor; but he escaped by an intrigue with the victorious party, and he was suspected of having secretly suggested the commission signed by richard, and confirmed by parliament, under which the whole power of the state was transferred to a commission of fourteen barons. he remained very quiet for a twelvemonth, till he thought that he perceived the new ministers falling into unpopularity, and he then advised that a bold effort should be made to crush them. meeting with encouragement, he secretly left london, and, being joined by the duke of ireland, went to the king, who was at nottingham, in a progress through the midland counties. he then undertook, through the instrumentality of his brother judges, to break the commission, and to restore the king and the favorite to the authority of which it had deprived them. his plan was immediately adopted, and the judges, who had just returned from the summer assizes, were all summoned in the king's name to nottingham. on their arrival, they found not only a string of questions, but answers, prepared by tresilian. these he himself had signed, and he required them to sign. belknappe, the chief justice of the common pleas, and the others, demurred, seeing the peril to which they might be exposed; but, by promises and threats, they were induced to acquiesce. the following record was accordingly drawn up, that copies of it might be distributed all over england:-- "be it remembered, that on the th of aug., in the th year of the reign of k. rich. ii., at the castle of nottingham, before our said lord the king, rob. tresilian, chief justice of england, and robt. belknappe, chief justice of the common bench of our said lord the king, john holt, roger fulthorp, and wm. de burg, knights, justices, &c., and john de lokton, the king's serjeant-at-law, in the presence of the lords and other witnesses under-written, were personally required by said lord the king, on the faith and allegiance wherein to him the said king they are bound, to answer faithfully unto certain questions hereunder specified, and to them then and there truly recited, and upon the same to declare the law according to their discretion, viz.:-- " . it was demanded of them, 'whether that new statute, ordinance, and commission, made and published in the last parl. held at westm., be not derogatory to the loyalty and prerogative of our said lord the king?' to which they unanimously answered that the same are derogatory thereunto, especially because they were against his will. " . 'how those are to be punished who procured that statute and commission?'--_a._ that they were to be punished with death, except the king would pardon them. " . 'how those are to be punished who moved the king to consent to the making of the said statute?'--_a._ that they ought to lose their lives unless his maj. would pardon them. " . 'what punishment they deserved who compelled, straightened, or necessitated the king to consent to the making of the said statute and commission?'--_a._ that they ought to suffer as traitors. " . 'how those are to be punished who hindered the king from exercising those things which appertain to his royalty and prerogative?'--_a._ that they are to be punished as traitors. " . 'whether after in parl. assembled, the affairs of the kingdom, and the cause of calling that parl. are by the king's command declared, and certain articles limited by the king upon which the lords and commons in that parl. ought to proceed; if yet the said lords and commons will proceed altogether upon other articles and affairs, and not at all upon those limited and proposed to them by the king, until the king shall have first answered them upon the articles and matters so by them started and expressed, although the king's command be to the contrary; whether in such case the king ought not to have the governance of the parl. and effectually overrule them, so as that they ought to proceed first on the matters proposed by the king: or whether, on the contrary, the lords and commons ought first to have the king's answer upon their proposals before they proceeded further?'--_a._ that the king in that behalf has the governance, and may appoint what shall be first handled, and so gradually what next in all matters to be treated of in parl., even to the end of the parl.; and if any act contrary to the king's pleasure made known therein, they are to be punished as traitors. " . 'whether the king, whenever he pleases, can dissolve the parl., and command the lords and commons to depart from thence, or not?'--_a._ that he can; and if any one shall then proceed in parl. against the king's will, he is to be punished as a traitor. " . 'since the king can, whenever he pleases, remove any of his judges and officers, and justify or punish them for their offences; whether the lords and commons can, without the will of the king, impeach in parl. any of the said judges or officers for any of their offences?'--_a._ that they cannot; and if any one should do so he is to be punished as a traitor.[ ] " . 'how he is to be punished who moved in parl. that the statute should be sent for whereby edw. ii. (the king's great grandfather) was proceeded against and deposed in parl.; by means of sending for and imposing which statute, the said late statute, ordinance, and commission, were devised and brought forth in parl.?'--_a._ that as well he that so moved, as he who by pretence of that motion carried the said statute to the parl., are traitors and criminals, to be punished with death. " . 'whether the judgment given in the last parl. held at westm. against mich. de la pole, earl of suffolk, was erroneous and revocable, or not?'--_a._ that if that judgment were now to be given, they would not give it; because it seems to them that the said judgment is revocable, as being erroneous in every part of it. "in testimony of all which, the judges and serjeants aforesaid, to these presents have put their seals in the presence of the rev. lords, alex. abp. of york, rob. abp. of dublin, john bp. of durham, tho. bp. of chichester, and john bp. of bangor, rob. duke of ireland, mich. earl of suffolk, john rypon, clerk, and john blake, esq.; given the place, day, month, and year aforesaid." tresilian exultingly thought that he had not only got rid of the obnoxious commission, but that he had annihilated the power of parliament by the destruction of parliamentary privilege, and by making the proceedings of the two houses entirely dependent on the caprice of the sovereign. he then attended richard to london, where the opinion of the judges against the legality of the commission was proclaimed to the citizens at the guildhall; and all who should act under it were declared traitors. a resolution was formed to arrest the most obnoxious of the opposite faction, and to send them to take their trials before the judges who had already committed themselves on the question of law; and, under the guidance of tresilian, a bill of indictment was actually prepared against them for a conspiracy to destroy the royal prerogative. thomas ush, the under sheriff, promised to pack a jury to convict them; sir nicholas brambre, who had been thrice lord mayor, undertook to secure the fidelity of the citizens; and all the city companies swore that they would live and die with the king, and fight against his enemies to their last breath. arundel, bishop of ely, was still chancellor; but tresilian considered that the great seal was now within his own grasp, and, after the recent examples of chief justices becoming chancellors, he anticipated no obstacle to his elevation. at such a slow pace did news travel in those days, that, on the night of the th of november, richard and his chief justice went to bed thinking that their enemies were annihilated, and next morning they were awoke by the intelligence that a large force, under the duke of gloucester and the earls of arundel and nottingham, was encamped at highgate. the confederate lords, hearing of the proceedings at nottingham, had immediately rushed to arms, and followed richard towards london, with an army of , men. the walls of london were sufficient to repel a sudden assault; and a royal proclamation forbade the sale of provisions to the rebels, in the hope that famine might disperse them. but, marching round by hackney, they approached aldgate, and they appeared so formidable, that a treaty was entered into, according to which they were to be supplied with all necessaries, on payment of a just price, and deputies from them were to have safe conduct through the city on their way to the king at westminster. richard himself agreed that on the following sunday he would receive the deputies, sitting on his throne in westminster hall. at the appointed hour he was ready to receive them, but they did not arrive, and he asked "how it fortuned that they kept not their promise." being answered, "because there is an ambush of a thousand armed men or more in a place called the mews, contrary to covenant; and therefore they neither come, nor hold you faithful to your word,"--he said, with an oath, that "he knew of no such thing," and he ordered the sheriffs of london to go thither and kill all they could lay hands on. the truth was, that sir nicholas brambre, in concert with tresilian, had planted an ambush near charing cross, to assassinate the lords as they passed; but, in obedience to the king's order, the men were sent back to the city of london. the lords at last reached westminster, with a gallant troop of gentlemen; and as soon as they had entered the great hall, and saw the king in his royal robes sitting on the throne, with the crown on his head and the sceptre in his hand, they made obeisance three times as they advanced, and when they reached the steps of the throne they knelt down before him with all seeming humility. he, feigning to be pleased to see them, rose and took each of them by the hand, and said "he would hear their plaint, as he was desirous to render justice to all his subjects." thereupon they said, "most dread sovereign, we appeal of high treason robert tresilian, that false justice; nicholas brambre, that disloyal knight; the archbishop of york; the duke of ireland; and the earl of suffolk;"--and, to prove their accusation to be true, they threw down their gauntlets, protesting by their oaths that they were ready to prosecute it to battle. "nay," said the king, "not so; but in the next parliament (which we do appoint beforehand to begin the morrow after the purification of our lady,) both they and you, appearing, shall receive according to law what law doth require, and right shall be done." it being apparent that the confederate lords had a complete ascendency, the accused parties fled. the duke of ireland and sir nicholas brambre made an ineffectual attempt to rally a military force; but chief justice tresilian disguised himself, and remained in concealment till he was discovered, after being attainted, in the manner to be hereafter described. the election for the new parliament ran strongly in favor of the confederate lords; and, on the day appointed for its meeting, an order was issued under their sanction for taking into custody all the judges who had signed the opinion at nottingham. they were all arrested while they were sitting on the bench, except chief justice tresilian; but he was nowhere to be found. when the members of both houses had assembled at westminster hall, and the king had taken his place on the throne, the five lords, who were called appellants, "entered in costly robes, leading one another hand in hand, an innumerable company following them, and, approaching the king, they all with submissive gestures reverenced him. then rising, they declared their appellation by the mouth of their speaker, who said, 'behold the duke of gloucester comes to purge himself of treasons which are laid to his charge by the conspirators.' to whom the lord chancellor, by the king's command, answered, 'my lord duke, the king conceiveth so honorably of you, that he cannot be induced to believe that you, who are of kindred to him, should attempt any treason against him.' the duke, with his four companions on their knees, humbly gave thanks to the king for his gracious opinion of their fidelity. and now, as a prelude to what was going to be acted, each of the prelates, lords and commons then assembled, had the following oath administered to them upon the rood or cross of canterbury, in full parliament: 'you shall swear that you will keep, and cause to be kept, the good peace, quiet, and tranquillity of the kingdom; and if any will do to the contrary thereof, you shall oppose and disturb him to the utmost of your power; and if any will do any thing against the bodies of the five lords, you shall stand with them to the end of this present parliament, and maintain and support them with all your power, to live and die with them against all men, no person or thing excepted, saving always your legiance to the king and the prerogatives of his crown, according to the laws and good customs of the realm.'" written articles to the number of thirty-nine were then exhibited by the appellants against the appellees. the other four are alleged to have committed the various acts of treason charged upon them "by the assent and counsel of robert tresilian, that false justice;" and in most of the articles he bears the brunt of the accusation. sir nicholas brambre alone was in custody; and the others not appearing when solemnly called, their default was recorded, and the lords took time to consider whether the impeachment was duly instituted, and whether the facts stated in the articles amounted to high treason. ten days thereafter, judgment was given "that the impeachment was duly instituted, and that the facts stated in several of the articles amounted to high treason." thereupon, the prelates having withdrawn, that they might not mix in an affair of blood, sentence was pronounced, "that sir robert tresilian, the duke of ireland, the archbishop of york, and earl of suffolk, should be drawn and hanged as traitors and enemies to the king and kingdom, and that their heirs should be disinherited forever, and that their lands and tenements, goods and chattels, should be forfeited to the king." tresilian might have avoided the execution of his sentence, had it not been for the strangest infatuation related of any human being possessing the use of reason. instead of flying to a distance, like the duke, the archbishop, and the earl, none of whom suffered, although his features were necessarily well known, he had come to the neighborhood of westminster hall on the first day of the session of parliament; and, even after his own attainder had been published, trusting to his disguise, his curiosity induced him to remain to watch the fate of his associate, sir nicholas brambre. this chivalrous citizen, who had been knighted for the bravery he had displayed in assisting sir william walwort to kill wat tyler and to put down the rebellion, having been apprehended and lodged in the tower of london, was now produced by the constable of the tower, to take his trial. he asked for further time to advise with his counsel, but was ordered forthwith to answer to every point in the articles of treason contained. thereupon he exclaimed, "whoever hath branded me with this ignominious mark, with him i am ready to fight in the lists to maintain my innocency whenever the king shall appoint!" "this," says a chronicler, "he spake with such a fury, that his eyes sparkled with rage, and he breathed as if an etna lay hid in his breast; choosing rather to die gloriously in the field, than disgracefully on a gibbet." the appellants said "they would readily accept of the combat," and flinging down their gages before the king, added, "we will prove these articles to be true to thy head, most damnable traitor!" but the lords resolved "that battle did not lie in this case; and that they would examine the articles with the proofs to support them, and consider what judgment to give, to the advantage and profit of the king and kingdom, and as they would answer before god." they adjourned for two days, and met again, when a number of london citizens appeared to give evidence against brambre. for the benefit of the reader, the chronicler i have before quoted shall continue the story:-- "before they could proceed with his trial, they were interrupted by unfortunate tresilian, who, being got upon the top of an apothecary's house adjoining to the palace, and descended into the gutter to look about him and observe who went into the palace, was discovered by certain of the peers, who presently sent some of the guard to apprehend him; who entering into the house where he was, and having spent long time in vain in looking for him, at length one of the guard stepped to the master of the house, and taking him by the shoulder, with his dagger drawn, said thus: 'show us where thou hast hid tresilian, or else resolve thy days as accomplished.' the master, trembling, and ready to yield up the ghost for fear, answered, 'yonder is the place where he lies;' and showed him a round table covered with branches of bays, under which tresilian lay close covered. when they had found him they drew him out by the heels, wondering to see him wear his hair and beard overgrown, with old clouted shoes and patched hose, more like a miserable poor beggar than a judge. when this came to the ears of the peers, the five appellants suddenly rose up, and, going to the gate of the hall, they met the guard leading tresilian, bound, crying, as they came, 'we have him, we have him.' tresilian, being come into the hall, was asked 'what he could say for himself why execution should not be done according to the judgment passed upon him for his treasons so often committed;' but he became as one struck dumb; he had nothing to say, and his heart was hardened to the very last, so that he would not confess himself guilty of any thing. whereupon he was without delay led to the tower, that he might suffer the sentence passed against him. his wife and his children did with many tears accompany him to the tower; but his wife was so overcome with grief, that she fell down in a swoon as if she had been dead. immediately tresilian is put upon an hurdle, and drawn through the streets of the city, with a wonderful concourse of people following him. at every furlong's end he was suffered to stop, that he might rest himself, and to see if he would confess or acknowledge any thing; but what he said to the friar, his confessor, is not known. when he came to the place of execution he would not climb the ladder, until such time as being soundly beaten with bats and staves he was forced to go up; and when he was up, he said, 'so long as i do wear any thing upon me, i shall not die;' wherefore the executioner stript him, and found certain images painted like to the signs of the heavens, and the head of a devil painted, and the names of many of the devils wrote in parchment; these being taken away he was hanged up naked, and after he had hanged some time, that the spectators should be sure he was dead, they cut his throat, and because the night approached they let him hang till the next morning, and then his wife, having obtained a licence of the king, took down his body, and carried it to the gray-friars, where it was buried." considering the violence of the times, tresilian's conviction and execution cannot be regarded as raising a strong presumption against him; but there seems little doubt that he flattered the vices of the unhappy richard; and historians agree that, in prosecuting his personal aggrandizement, he was utterly regardless of law and liberty. he died unpitied, and, notwithstanding the "historical doubts" by which we are beset, no one has yet appeared to vindicate his memory. chapter iii. thomas billing. the crown of england, transferred on the deposition of richard ii.[ ] in to the lancaster family in the person of henry iv., was worn successively by him and by his son and grandson, henry v. and henry vi. after the lapse, however, of sixty-two years, the imbecility of henry vi. enabled the legitimist or yorkist party to triumph by placing edward iv. on the throne. at this time sir john fortescue, an able man and distinguished by his treatise _de laudibus legion angliæ_, (praises of the laws of england,) was chief justice of the king's bench; but being an ardent lancastrian, and having written pamphlets to prove that richard ii. was rightly deposed, that henry iv. had been called to the throne by the estates of the kingdom and the almost unanimous voice of the people, and that now, in the third generation, the title of the house of lancaster could not be questioned, he was by no means the man to suit the new dynasty. he was removed to make way for sir john markham, who had been for nineteen years a puisne judge of the same court, and who, though he had not ventured to publish any thing on the subject, yet in private conversation and in "moots" at the temple, such as that in which the white and red roses were chosen as the emblems of the opposite opinions, did not hesitate to argue for indefeasible hereditary right, which no length of possession could supersede, and to contend that the true heir of the crown of england was richard, duke of york, descended from the second son of edward iii. his sentiments were well known to the yorkist leaders, and they availed themselves of the legal reasoning and the historical illustrations with which he furnished them; but he never sallied forth into the field, even when, after the death of richard, the gallant youth his eldest son displayed the high qualities which so wonderfully excited the energy of his partisans. however, when henry vi. was confined as a prisoner in the tower, and fortescue and all the lancastrian leaders had fled, markham was very naturally and laudably selected for the important office of chief justice of the king's bench. although he was such a strong legitimist, he was known not only to be an excellent lawyer, but a man of honorable and independent principles. the appointment, therefore, gave high satisfaction, and was considered a good omen of the new _régime_. he held the office above seven years, with unabated credit. not only was his hand free from bribes, but so was his mind from every improper bias. it was allowed that when sitting on the bench, no one could have discovered whether he was yorkist or lancastrian; the adherents of the reigning dynasty complaining (i dare say very unjustly) that, to obtain a character for impartiality, he showed a leaning on the lancastrian side.[ ] at last, though he cherished his notions of hereditary right with unabating constancy, he forfeited his office because he would not prostitute it to the purpose of the king and the ministers in wreaking their vengeance on the head of a political opponent. sir thomas cooke, who inclined to the lancastrians, though he had conducted himself with great caution, was accused of treason and committed to the tower. to try him a special commission was issued, over which lord chief justice markham presided, and the government was eager for a conviction. but all that could be proved against the prisoner was, that he entered into a treaty to lend, on good security, a sum of marks for the use of margaret, the queen of the dethroned henry vi. the security was not satisfactory, and the money was not advanced. the chief justice ruled that this did not amount to treason, but was at most misprision of treason. of this last offence the prisoner being found guilty, he was subjected to fine and imprisonment; but he saved his life and his lands. king edward iv. was in a fury, and swearing that markham, notwithstanding his high pretensions to loyalty, was himself little better than a traitor, ordered that he should never sit on the bench any more; and appointed in his place a successor, who, being a _puisne_, had wished to trip up the heels of his chief, and had circulated a statement, to reach the king's ear, that sir thomas cooke's offence was a clear, overt act of high treason. markham bore his fall with much dignity and propriety--in no respect changing his principles or favoring the movement which for a season restored henry vi. to the throne after he had been ten years a prisoner in the tower. upon the dismissal of sir john markham, edward iv., who no longer showed the generous spirit which had illustrated his signal bravery while he was fighting for the crown, and now abandoned himself by turns to voluptuousness and cruelty, tried to discover the fittest instrument that could be found for gratifying his resentments by a perversion of the forms of law, and with felicity fixed upon sir thomas billing, who, by all sorts of meannesses, frauds, and atrocities, aided by natural shrewdness, or rather low cunning, had contrived to raise himself from deep obscurity to a puisne judge of the king's bench; and in that situation had shown himself ready to obey every mandate, and to pander to every caprice of those who could give him still higher elevation. this is one of the earliest of the long list of politico-legal adventurers who have attained to eminence by a moderate share of learning and talent, and an utter want of principle and regard for consistency.[ ] his family and the place of his education are unknown. he was supposed to have been the clerk of an attorney; thus making himself well acquainted with the rules of practice and the less reputable parts of the law. however, he contrived (which must have been a difficult matter in those days, when almost all who were admitted at the inns of court were young men of good birth and breeding) to keep his terms and to be called to the bar. he had considerable business, although not of the most creditable description, and in due time he took the degree of the coif, that is, became a serjeant. his ambition grew with his success, and nothing would satisfy him but official preferment. now began the grand controversy respecting the succession to the crown; and the claim to it through the house of mortimer, which had long been a mere matter of speculation, was brought into formidable activity in the person of richard, duke of york. billing, thinking that a possession of above half a century must render the lancastrian cause triumphant, notwithstanding the imbecility of the reigning sovereign, was outrageously loyal. he derided all objections to a title which the nation had so often solemnly recognized; enlarging on the prudence of henry iv., the gallantry of henry v., and the piety of the holy henry vi., under whose mild sway the country now flourished, happily rid of all its continental dependencies. he even imitated the example of sir john fortescue, and published a treatise upon the subject, which he concluded with an exhortation "that all who dared, by act, writing, or speech, to call in question the power of parliament to accept the resignation of richard ii., or to depose him for the crimes he had committed, and to call to the throne the member of the royal family most worthy to fill it, according to the fashion of our saxon ancestors, should be proceeded against as traitors." this so pleased waynflete, the chancellor, and the other lancastrian leaders, that billing was thereupon made king's serjeant, and knighted. when the right to the crown was argued, like a peerage case, at the bar of the house of lords, billing appeared as counsel for henry vi., leading the attorney and solicitor general; but it was remarked that his fire had slackened much, and he was very complimentary to the duke of york, who, since the battle of northampton, had been virtually master of the kingdom. we know nothing more of the proceedings of this unprincipled adventurer until after the fall of duke richard, when the second battle of st. alban's had placed his eldest son on the throne. instantly sir thomas billing sent in his adhesion; and such zeal did he express in favor of the new dynasty that his patent of king's serjeant was renewed, and he became principal law adviser to edward iv. when parliament assembled, receiving a writ of summons to the house of lords, he assisted in framing the acts by which sir j. fortescue and the principal lancastrians, his patrons, were attainted, and the last three reigns were pronounced tyrannical usurpations. he likewise took an active part in the measures by which the persevering efforts of queen margaret to regain her ascendency were disconcerted, and henry vi. was lodged a close prisoner in the tower of london. sir john markham, the honorable and consistent yorkist, now at the head of the administration of the criminal law, was by no means so vigorous in convicting lancastrians, or persons suspected of lancastrianism, as edward and his military adherents wished; and when state prosecutions failed, there were strong murmurs against him. in these mr. serjeant billing joined, suggesting how much better it would be for the public tranquillity if the law were properly enforced. it would have appeared very ungracious, as well as arbitrary, to displace the chief justice, who had been such a friend to the house of york, and was so generally respected. that there might be one judge to be relied upon, who might be put into commissions of oyer and terminer, billing was made a puisne justice of the court of king's bench. he was not satisfied with this elevation, which little improved his position in the profession; but he hoped speedily to be on the woolsack, and he was resolved that mere scruples of conscience should not hold him back. being thus intrusted with the sword of justice, he soon fleshed it in the unfortunate walter walker, indicted before him on the statute edward iii., for compassing and imagining the death of the king. the prisoner kept an inn called the crown, in cheapside, in the city of london, and was obnoxious to the government because a club of young men met there who were suspected to be lancastrians, and to be plotting the restoration of the imprisoned king. but there was no witness to speak to any such treasonable consult; and the only evidence to support the charge was, that the prisoner had once, in a merry mood, said to his son, then a boy, "tom, if thou behavest thyself well, i will make thee heir to the crown." counsel were not allowed to plead in such cases then, or for more than three centuries after; but the poor publican himself urged that he never had formed any evil intention upon the king's life,--that he had ever peaceably submitted to the ruling powers,--and that though he could not deny the words imputed to him, they were only spoken to amuse his little boy, meaning that he should succeed him as master of the crown tavern, in cheapside, and, like him, employ himself in selling sack. mr. justice billing, however, ruled-- "that upon the just construction of the statute of treasons, which was only declaratory of the common law, there was no necessity, in supporting such a charge, to prove a design to take away the natural life of the king; that any thing showing a disposition to touch his royal state and dignity was sufficient; and that the words proved were inconsistent with that reverence for the hereditary descent of the crown which was due from every subject under the oath of allegiance; therefore, if the jury believed the witness, about which there could be no doubt, as the prisoner did not venture to deny the treasonable language which he had used, they were bound to find him guilty." a verdict of guilty was accordingly returned, and the poor publican was hanged, drawn, and quartered.[ ] mr. justice billing is said to have made the criminal law thus bend to the wishes of the king and the ministers in other cases, the particulars of which have not been transmitted to us; and he became a special favorite at court, all his former extravagances about cashiering kings and electing others in their stead being forgotten, in consideration of the zeal he displayed since his conversion to the doctrine of "divine right." therefore, when the chief justice had allowed sir thomas cooke to escape the penalties of treason, after his forfeitures had been looked to with eagerness on account of the great wealth he had accumulated, there was a general cry in the palace at westminster that he ought not to be permitted longer to mislead juries, and that mr. justice billing, of such approved loyalty and firmness, should be appointed to succeed him, rather than the attorney or solicitor general, who, getting on the bench, might, like him, follow popular courses. accordingly, a _supersedeas_ to sir john markham was made out immediately after the trial of _rex_ v. _cooke_, and the same day a writ passed the great seal, whereby "the king's trusty and well-beloved sir thomas billing, knight, was assigned as chief justice to hold pleas before the king himself." the very next term came on the trial of sir thomas burdett. this descendant of one of the companions of william the conqueror, and ancestor of the late sir francis burdett, lived at arrow, in warwickshire, where he had large possessions. he had been a yorkist, but somehow was out of favor at court; and the king, making a progress in those parts, had rather wantonly entered his park, and hunted and killed a white buck, of which he was peculiarly fond. when the fiery knight, who had been from home, heard of this affair, which he construed into a premeditated insult, he exclaimed, "i wish that the buck, horns and all, were in the belly of the man who advised the king to kill it;" or, as some reported, "were in the king's own belly." the opportunity was thought favorable for being revenged on an obnoxious person. accordingly he was arrested, brought to london, and tried at the king's bench bar on a charge of treason, for having compassed and imagined the death and destruction of "our lord the king." the prisoner proved, by most respectable witnesses, that the wish he had rashly expressed was applied only to the man who advised the king to kill the deer, and contended that words did not amount to treason, and that--although, on provocation, he had uttered an irreverent expression, which he deeply regretted--instead of having any design upon the king's life, he was ready to fight for his right to the crown, as he had done before; and that he would willingly die in his defence. "lord chief justice billing left it to the jury to consider what the words were; for if the prisoner had only expressed a wish that the buck and his horns were in the belly of the man who advised the king to kill the buck, it would not be a case of treason, and the jury would be bound to acquit; but the story as told by the witnesses for the crown was much more probable, for sovereigns were not usually advised on such affairs, and it had been shown that on this occasion the king had acted entirely of his own head, without any advisers, as the prisoner, when he uttered the treasonable words, must have well known: then, if the words really were as alleged by the witnesses for the crown, they clearly did show a treasonable purpose. words merely expressing an opinion, however erroneous the opinion, might not amount to treason; but when the words refer to a purpose, and incite to an act, they might come within the statute. here the king's death had certainly been in the contemplation of the prisoner; in wishing a violence to be done which must inevitably have caused his death, he imagined and compassed it. this was, in truth, advising, counselling, and commanding others to take away the sacred life of his majesty. if the wicked deed had been done, would not the prisoner, in case the object of his vengeance had been a subject, have been an accessory before the fact?[ ] but in treason accessories before the fact were principals, and the prisoner was not at liberty to plead that what he had planned had not been accomplished. therefore, if the jury believed that he had uttered the treasonable wish directed against his majesty's own sacred person, they were bound to convict him." the jury immediately returned a verdict of guilty; and the frightful sentence in high treason, being pronounced, was carried into execution with all its horrors. this barbarity made a deep impression on the public mind, and, to aggravate the misconduct of the judge, a rumor was propagated that the late virtuous chief justice had been displaced because he had refused to concur in it. lord chief justice billing, having justified his promotion by the renegade zeal he displayed for his new friends, and enmity to his old associates, was suddenly thrown into the greatest perplexity, and he must have regretted that he had ever left the lancastrians. one of the most extraordinary revolutions in history,--when a long continuance of public tranquillity was looked for,--without a battle, drove edward iv. into exile, and replaced henry vi. on the throne, after he had languished ten years as a captive in the tower of london. there is no authentic account of billing's deportment in this crisis, and we can only conjecture the cunning means he would resort to, and the pretences he would set up, to keep his place and to escape punishment. certain it is, that within a few days from the time when henry went in procession from his prison in the tower to his palace at westminster, with the crown on his head, while almost all other functionaries of the late government had fled, or were shut up in jail, a writ passed the great seal, bearing date the th year of his reign, by which he assigned "his trusty and well-beloved sir john billing, knight, as his chief justice to hold pleas in his court before him." there can be as little doubt that he was present at the parliament which was summoned immediately after in henry's name, when the crown was entailed on henry and his issue, edward was declared a usurper, his most active adherents were attainted, and all the statutes which had passed during his reign were repealed. it is not improbable that there had been a secret understanding between billing and the earl of warwick, (the king maker,) who himself so often changed sides, and who was now in possession of the whole authority of the government. while edward was a fugitive in foreign parts, the doctrine of divine right was, no doubt, at a discount in england, and billing may have again bolted his arguments about the power of the people to choose their rulers; although, according to the superstition of the age, he more probably countenanced the belief that henry was a saint, and that he was restored by the direct interposition of heaven. but one would think he must have been at his wits' end when, in the spring of the following year, edward iv. landed at ravenspurg, gained the battle of barnet, and, after the murder of henry vi. and the prince of wales, was again on the throne, without a rival. billing does seem to have found great difficulty in making his peace. though he was dismissed from his office, it was allowed to remain vacant about a twelvemonth, during which time he is supposed to have been in hiding. but he had vowed that, whatever changes might take place on the throne, he himself should die chief justice of the king's bench; and he contrived to be as good as his word. by his own representations, or the intercession of friends, or the hope of the good services he might yet render in getting rid of troublesome opponents, the king was induced to declare his belief that he who had sat on the trials of walker and burdet had unwillingly submitted to force during the late usurpation; and on the th of june, , a writ passed the great seal, by which his majesty assigned "his right trusty and well-beloved sir john billing, knight, as chief justice to hold pleas before his majesty himself." for nearly nine years after, he continued in the possession of his office, without being driven again to change his principles or his party. one good deed he did, which should be recorded of him--in advising edward iv. to grant a pardon to an old lancastrian, sir john fortescue. but for the purpose of reducing this illustrious judge to the reproach of inconsistency, which he knew made his own name a by-word, he imposed a condition that the author of _de laudibus_ should publish a new treatise, to refute that which he had before composed, proving the right of the house of lancaster to the throne; and forced him to present the petition in which he assures the king "that he hath so clearly disproved all the arguments that have been made against his right and title, that now there remaineth no color or matter of argument to the hurt or infamy of the same right or title by reason of any such writing, but the same right and title stand now the more clear and open by that any such writings have been made against them." there are many decisions of chief justice billing on dry points of law to be found in the year books, but there is only one other trial of historical importance mentioned in which he took any part; and it is much to be feared that on this occasion he inflamed, instead of soothing, the violent passions of his master, with whom he had become a special favorite. edward iv., after repeated quarrels and reconciliations with his brother, the duke of clarence, at last brought him to trial, at the bar of the house of lords, on a charge of high treason. the judges were summoned to attend, and lord chief justice billing was their mouthpiece. we have only a very defective account of this trial, and it would appear that nothing was proved against the first prince of the blood, except that he had complained of the unlawful conviction of burdet, who had been in his service; that he had accused the king of dealing in magic, and had cast some doubts on his legitimacy; that he had induced his servants to swear that they would be true to him, without any reservation of their allegiance to their sovereign; and that he had surreptitiously obtained and preserved an attested copy of an act of parliament, passed during the late usurpation, declaring him next heir to the crown after the male issue of henry vi. the duke of buckingham presided as high steward, and in that capacity ought to have laid down the law to the peers; but, to lessen his responsibility, he put the question to the judges, "whether the matters proved against the duke of clarence amounted, in point of law, to high treason." chief justice billing answered in the affirmative. therefore a unanimous verdict of guilty was given, and sentence of death was pronounced in the usual form. i dare say billing would not have hesitated in declaring his opinion that the beheading might be commuted to drowning in a butt of malmsey wine; but this story of clarence's exit, once so current, is now generally discredited, and the belief is, that he was privately executed in the tower, according to his sentence. lord chief justice billing enjoyed the felicitous fate accorded to very few persons of any distinction in those times--that he never was imprisoned, that he never was in exile, and that he died a natural death. in the spring of the year , he was struck with apoplexy, and he expired in a few days--fulfilling his vow--for he remained to the last chief justice of the king's bench, after a tenure of office for seventeen years, in the midst of civil wars and revolutions. he amassed immense wealth, but dying childless, it went to distant relations, for whom he could have felt no tenderness. notwithstanding his worldly prosperity, few would envy him. he might have been feared and flattered, but he could not have been beloved or respected, by his contemporaries; and his name, contrasted with those of fortescue and markham, was long used as an impersonation of the most hollow, deceitful, and selfish qualities which can disgrace mankind. chapter iv. john fitzjames. of obscure birth, and not brilliant talents, sir john fitzjames made his fortune by his great good humor, and by being at college with cardinal wolsey. it is said that fitzjames, who was a somersetshire man, kept up an intimacy with wolsey when the latter had become a village parson in that county; and that he was actually in the brawl at the fair when his reverence, having got drunk, was set in the stocks by sir amyas paulet. while wolsey tried his luck in the church, with little hope of promotion, fitzjames was keeping his terms in the inns of court; but he chiefly distinguished himself on gaudy days, by dancing before the judges, playing the part of "abbot of misrule," and swearing strange oaths--especially by _st. gillian_, his tutelary saint. his agreeable manners made him popular with the "readers" and "benchers;" and through their favor, although very deficient in "moots" and "bolts," he was called to the outer bar. clients, however, he had none, and he was in deep despair, when his former chum--having insinuated himself into the good graces of the stern and wary old man, henry vii., and those of the gay and licentious youth, henry viii.--was rapidly advancing to greatness. wolsey, while almoner, and holding subordinate offices about the court, took notice of fitzjames, advised him to stick to the profession, and was able to throw some business in his way in the court of wards and liveries-- "lofty and sour to them that lov'd him not: but to those men that sought him, sweet as summer." fitzjames was devotedly of this second class, and was even suspected to assist his patron in pursuits which drew upon him queen catharine's censure:-- "of his own body he was ill, and gave the clergy ill example." for these or other services, the cardinal, not long after he wrested the great seal from archbishop wareham, and had all legal patronage conferred upon him, boldly made fitzjames attorney general, notwithstanding loud complaints from competitors of his inexperience and incapacity. the only state trial which he had to conduct was that of the unfortunate stafford, duke of buckingham, who, having quarrelled with wolsey, and called him a "butcher's cur," was prosecuted for high treason before the lord high chancellor and court of peers, on very frivolous grounds. fitzjames had little difficulty in procuring a conviction; and although the manner in which he pressed the case seems shocking to us, he probably was not considered to have exceeded the line of his duty: and shakspeare makes buckingham, returning from westminster hall to the tower, exclaim-- "i had my trial, and, must needs say, a noble one; which makes me a little happier than my wretched father." the result was, at all events, highly satisfactory to wolsey, who, in the beginning of the following year, created fitzjames a puisne judge of the court of king's bench, with a promise of being raised to be chief justice as soon as there should be a vacancy. sir john fineux, turned of eighty, was expected to drop every term, but held on four years longer. as soon as he expired, fitzjames was appointed his successor. wolsey still zealously supported him, although thereby incurring considerable obloquy. it was generally thought that the new chief was not only wanting in gravity of moral character, but that he had not sufficient professional knowledge for such a situation. his highest quality was discretion, which generally enabled him to conceal his ignorance, and to disarm opposition. fortunately for him, the question which then agitated the country respecting the validity of the king's marriage with catharine of arragon, was considered to depend entirely on the canon law, and he was not called upon to give any opinion upon it. he thus quietly discharged the duties of his office till wolsey's fall. but he then experienced much perplexity. was he to desert his patron, or to sacrifice his place? he had an exaggerated notion of the king's vengeful feelings. the cardinal having been not only deprived of the great seal, but banished to esher, and robbed of almost the whole of his property under process of _præmunire_, while an impeachment for treason was still threatened against him, the chief justice concluded that his utter destruction was resolved upon, and that no one could show him any sympathy without sharing his fate. therefore, instead of going privately to visit him, as some old friends did, he joined in the cry against him, and assisted his enemies to the utmost. wolsey readily surrendered all his private property, but wished, for the benefit of his successors, to save the palace at whitehall, which belonged to the see of york, being the gift of a former archbishop. a reference was then made to the judges, "whether it was not forfeited to the crown;" when the chief justice suggested the fraudulent expedient of a fictitious recovery in the court of common pleas, whereby it should be adjudged to the king under a superior title. he had not the courage to show himself in the presence of the man to whom he owed every thing; and shelley, a puisne judge, was deputed to make the proposal to him in the king's name. "master shelley," said the cardinal, "ye shall make report to his highness that i am his obedient subject, and faithful chaplain and bondsman, whose royal commandment and request i will in no wise disobey, but most gladly fulfil and accomplish his princely will and pleasure in all things, and in especial in this matter, inasmuch as the fathers of the law all say that i may lawfully do it. therefore i charge your conscience, and discharge mine. howbeit, i pray you show his majesty from me that i most humbly desire his highness to call to his most gracious remembrance that there is both heaven and hell." this answer was, no doubt, reported by shelley to his brethren assembled in the exchequer chamber, although, probably, not to the king; but it excited no remorse in the breast of chief justice fitzjames, who perfected the machinery by which the town residence of the archbishops of york henceforth was annexed to the crown, and declared his readiness to concur in any proceedings by which the proud ecclesiastic, who had ventured to sneer at the reverend sages of the law, might be brought to condign punishment. accordingly, when parliament met, and a select committee of the house of lords was appointed to draw up articles of impeachment against wolsey, chief justice fitzjames, although only summoned, like the other judges, as an assessor, was actually made a member of the committee, joined in their deliberations, and signed their report. the authority of the chief justice gave such weight to the articles that they were agreed to by the lords, _nemine contradicente_; but his ingratitude and tergiversation caused much scandal out of doors, and he had the mortification to find that he might have acted an honorable and friendly part without any risk to himself, as the king, retaining a hankering kindness for his old favorite, not only praised the fidelity of cavendish and the cardinal's other dependants who stuck by him in adversity, but took cromwell into favor, and advanced him to the highest dignities, pleased with his gallant defence of his old master: thus the articles of impeachment (on which, probably, fitzjames had founded hopes of the great seal for himself) were ignominiously rejected in the house of commons. the recreant chief justice must have been much alarmed by the report that wolsey, whom he had abandoned, if not betrayed, was likely to be restored to power, and he must have been considerably relieved by the certain intelligence of the sad scene at leicester abbey in the following autumn, which secured him forever against the fear of being upbraided or punished in this world according to his deserts. however, he had now lost all dignity of character, and henceforth he was used as a vile instrument to apply the criminal law for the pleasure of the tyrant on the throne, whose relish for blood soon began to display itself, and became more eager the more it was gratified. henry retaining all the doctrines of the roman catholic religion which we protestants consider most objectionable, but making himself pope in england in place of the bishop of rome, laws were enacted subjecting to the penalties of treason all who denied his _supremacy_;[ ] and many of these offenders were tried and condemned by lord chief justice fitzjames, although he was suspected of being in his heart adverse to all innovation in religion. i must confine myself to the two most illustrious victims sacrificed by him--fisher, bishop of rochester, and sir thomas more. henry, not contented with having them attainted of _misprision of treason_, for which they were suffering the sentence of forfeiture of all their property and imprisonment during life, was determined to bring them both to the block, and for this purpose issued a special commission to try them on the capital charge of having denied his supremacy. the lord chancellor was first commissioner; but it was intended that the responsibility and the odium should chiefly rest on the lord chief justice fitzjames, who was joined in the commission along with several other common law judges of inferior rank. the case against the bishop of rochester rested on the evidence of rich, the solicitor general, who swore he had heard the prisoner say, "i believe in my conscience, and by my learning i assuredly know, that the king neither is, nor by right can be, supreme head of the church of england;" but admitted that this was in a confidential conversation, which he had introduced by declaring that "he came from the king to ask what the bishop's opinion was upon this question, and by assuring him that it never should be mentioned to any one except the king, and that the king had promised he never should be drawn into question for it afterwards." the prisoner contending that he was not guilty of the capital crime charged for words so spoken, the matter was referred to the judges. "lord chief justice fitzjames, in their names, declared 'that this message or promise from the king to the prisoner neither did nor could, by rigor of law, discharge him; but in so declaring of his mind and conscience against the _supremacy_--yea, though it were at the king's own request or commandment--he committed treason by the statute, and nothing can discharge him from death but the king's pardon.'" _bishop of rochester._--"yet i pray you, my lords, consider that by all equity, justice, worldly honesty, and courteous dealing, i cannot, as the case standeth, be directly charged therewith as with treason, though i had spoken the words indeed, the same not being spoken maliciously, but in the way of advice or counsel, when it was required of me by the king himself; and that favor the very words of the statute do give me, being made only against such as shall '_maliciously_ gainsay the king's supremacy,' and none other; wherefore, although by rigor of law you may take occasion thus to condemn me, yet i hope you cannot find law, except you add rigor to that law, to cast me down, which herein i have not deserved." _fitzjames, c. j._--"all my brethren are agreed that '_maliciously_' is a term of art and an inference of law, not a qualification of fact. in truth, it is a superfluous and void word; for if a man speak against the king's supremacy by any manner of means, that speaking is to be understood and taken in law as _malicious_." _bishop of rochester._--"if the law be so, then it is a hard exposition, and (as i take it) contrary to the meaning of them that made the law, as well as of ordinary persons who read it. but then, my lords, what says your wisdom to this question, 'whether a single testimony may be admitted to prove me guilty of treason; and may it not be answered by my negative?' often have i heard it said, that to overcome the presumption from the oath of allegiance to the king's majesty, and to guard against the dire consequences of the penalties for treason falling on the head of an innocent man, none shall be convicted thereof save on the evidence of two witnesses at the least." _fitzjames, c. j._--"this being the king's case, it rests much in the conscience and discretion of the jury; and as they upon the evidence shall find it, you are either to be acquitted or else to be condemned." the report says that "the bishop answered with many more words, both wisely and profoundly uttered, and that with a mervailous, couragious, and rare constancy, insomuch as many of his hearers--yea, some of the judges--lamented so grievously, that their inward sorrow was expressed by the outward teares in their eyes, to perceive such a famous and reverend man in danger to be condemned to a cruell death upon so weake evidence, given by such an accuser, contrary to all faith, and the promise of the king himself." a packed jury, being left to their conscience and discretion, found a verdict of guilty; and henry was able to make good his saying, when he was told that the pope intended to send bishop fisher a cardinal's hat--"'fore god, then, he shall wear it on his shoulders, for i will have his head off." the conduct of the chief justice at the trial of sir thomas more was not less atrocious. after the case for the crown had been closed, the prisoner, in an able address to the jury, clearly proved that there was no evidence whatever to support the charge, and that he was entitled to an acquittal; when rich, the solicitor general, was permitted to present himself in the witness box, and to swear falsely, that "having observed, in a private conversation with the prisoner in the tower, 'no parliament could make a law that god should not be god,'[ ] sir thomas replied, 'no more can the parliament make the king supreme head of the church.'" a verdict of guilty was pronounced against the prisoner, notwithstanding his solemn denial of ever having spoken these words. he then moved, in arrest of judgment, that the indictment was insufficient, as it did not properly follow the words of the statute which made it high treason to deny the king's supremacy, even supposing that parliament had power to pass such a statute. the lord chancellor, whose duty it was, as head of the commission, to pass the sentence--"not willing," says the report, "to take the whole load of his condemnation on himself, asked in open court the advice of sir john fitzjames, the lord chief justice of england, whether the indictment was valid or no." _fitzjames, c. j._--"my lords all, by st. gillian, (for that was always his oath,) i must needs confess that if the act of parliament be not unlawful, then the indictment is not, in my conscience, invalid." _lord chancellor._--"_quid adhuc desideramus, testimonium? reus est mortis._ (what more do we need? he is worthy of death.) sir thomas more, you being, by the opinion of that reverend judge, the chief justice of england, and of all his brethren, duly convicted of high treason, this court doth adjudge that you be carried back to the tower of london, and that you be thence drawn on a hurdle to tyburn, where you are to be hanged till you are half dead, and then being cut down alive and embowelled, and your bowels burnt before your face, you are to be beheaded and quartered, your four quarters being set up over the four gates of the city, and your head upon london bridge." no one can deny that lord chief justice fitzjames was an accessory to this atrocious murder. the next occasion of his attracting the notice of the public was when he presided at the trials of smeaton and the other supposed gallants of anne boleyn. luckily for him, no particulars of these trials have come down to us, and we remain ignorant of the arts by which a conviction was obtained, and even a _confession_--although there is every reason to believe that the parties were innocent. according to the rules of evidence which then prevailed, the convictions and confessions of the gallants were to be given in evidence to establish the guilt of the unhappy queen, for whose death henry was now as impatient as he had once been to make her his wife. when the lord high steward and the peers assembled for her trial, fitzjames and the other judges attended, merely as assessors, to advise on any point of law which might arise. i do not find that they were consulted till the verdict of guilty had been recorded, and sentence was to be pronounced. _burning_ was the death which the law appointed for a woman attainted of treason; yet as anne had been queen of england, some peers suggested that it might be left to the king to determine whether she should die such a cruel and ignominious death, or be _beheaded_, a punishment supposed to be attended with less pain and less disgrace. but then a difficulty arose whether, although the king might remit all the atrocities of the sentence on a man for treason, except beheading, which is part of it, he could order a person to be beheaded who was sentenced to be burnt. a solution was proposed, that she should be sentenced by the lord high steward to be "burnt or beheaded at the king's pleasure;" and the opinion of the judges was asked, "whether such a sentence could be lawfully pronounced." _fitzjames, c. j._--"my lords, neither myself nor any of my learned brothers have ever known or found in the records, or read in the books, or known or heard of, a sentence of death in the alternative or disjunctive, and incline to think that it would be bad for uncertainty. the law delights in certainty. where a choice is given, by what means is the choice to be exercised? and if the sheriff receives no special directions, what is he to do? is sentence to be stayed till special directions are given by the king? and if no special directions are given, is the prisoner, being attainted, to escape all punishment? prudent antiquity advises you _stare super antiquas vias_; and that which is without precedent is without safety." after due deliberation, it was held that an absolute sentence of beheading would be lawful, and it was pronounced accordingly; the court being greatly comforted by recollecting that no writ of error lay, and that their judgment could not be reversed. fitzjames died in the year , before this judgment served as a precedent for that upon the unfortunate queen catharine howard; and he was much missed when the bloody statute of the six articles brought so many, both of the old and of the reformed faith, on capital charges, before the court of king's bench. chapter v. thomas fleming. the greatest part of my readers never before read or heard of the name of thomas fleming; yet, starting in the profession of the law with francis bacon, he was not only preferred to him by attorneys, but by prime ministers, and he had the highest professional honors showered upon him, while the immortal philosopher, orator, and fine writer continued to languish at the bar without any advancement, notwithstanding all his merits and all his intrigues. but fleming had superior good fortune, and enjoyed temporary consequences, because he was a mere lawyer--because he harbored no idea or aspirations beyond the routine of westminster hall--because he did not mortify the vanity of the witty, or alarm the jealousy of the ambitious. he was the younger son of a gentleman of small estate in the isle of wight. i do not find any account of his early education, and very little interest can now be felt respecting it; although we catch so eagerly at any trait of the boyhood of his rival, whom he despised. soon after he was called to the bar, by unwearied drudgery he got into considerable practice; and it was remarked that he always tried how much labor he could bestow upon every case intrusted to him, while his more lively competitors tried with how little labor they could creditably perform their duty. in the end of the year , he was called to the degree of serjeant, along with eight others, and was thought to be the most deeply versed in the law of real actions of the whole batch. it happened that, soon after, there was a vacancy in the office of solicitor general, on the promotion of sir edward coke to be attorney general. bacon moved heaven and earth that he himself might succeed to it. he wrote to his uncle, lord treasurer burleigh, saying, "i hope you will think i am no unlikely piece of wood to shape you a true servant of." he wrote to the queen elizabeth, saying, "i affect myself to a place of my profession, such as i do see divers younger in proceeding to myself, and men of no great note, do without blame aspire unto; but if your majesty like others better, i shall, with the lacedemonian, be glad that there is such choice of abler men than myself." he accompanied this letter with a valuable jewel, to show off her beauty. he did what he thought would be still more serviceable, and, indeed, conclusive; he prevailed upon the young earl of essex, then in the highest favor with the aged queen, earnestly to press his suit. but the appointment was left with the lord treasurer, and he decided immediately against his nephew, who was reported to be no lawyer, from giving up his time to profane learning--who had lately made an indiscreet, although very eloquent, speech in the house of commons--and who, if promoted, might be a dangerous rival to his cousin, robert cecil, then entering public life, and destined by his sire to be prime minister. the cunning old fox then inquired who would be a competent person to do the queen's business in her courts, and would give no uneasiness elsewhere; and he was told by several black-letter judges whom he consulted that "serjeant fleming was the man for him." after the office had been kept vacant by these intrigues above a year, serjeant fleming was actually appointed. bacon's anguish was exasperated by comparing himself with the new solicitor; and in writing to essex, after enumerating his own pretensions, he says, "when i add hereunto the obscureness and many exceptions to my competitor, i cannot but conclude with myself that no man ever had a more exquisite disgrace." he resolved at first to shut himself up for the rest of his days in a cloister at cambridge. a soothing message from the queen induced him to remain at the bar; but he had the mortification to see the man whom he utterly despised much higher in the law than himself, during the remainder of this and a considerable part of the succeeding reign. fleming, immediately upon his promotion, gave up his serjeantship, and practised in the court of queen's bench. he was found very useful in doing the official business, and gave entire satisfaction to his employers. at the calling of a new parliament, in the autumn of , he was returned to the house of commons for a cornish borough; and, according to the usual practice at that time, he ought, as solicitor general, to have been elected speaker; but his manner was too "lawyer-like and ungenteel" for the chair, and serjeant croke, who was more presentable, was substituted for him. he opened his mouth in the house only once, and then he broke down. this was in the great debate on the grievance of monopolies. he undertook to defend the system of granting to individuals the exclusive right of dealing in particular commodities; but when he had described the manner in which patents passed through the different offices before the great seal is put to them, he lost his recollection and resumed his seat. bacon, now member for middlesex, to show what a valuable solicitor general the government had lost, made a very gallant speech, in which he maintained that "the queen, as she is our sovereign, hath both an enlarging and restraining power: for, by her prerogative, she may, st, set at liberty things restrained by statute law or otherwise; and dly, by her prerogative she may restrain things which be at liberty." he concluded by expressing the utmost horror of introducing any bill to meddle with the powers of the crown upon the subject, and protesting that "the only lawful course was to leave it to her majesty of her own free will to correct any hardships, if any had arisen in the exercise of her just rights, as the arbitress of trade and commerce in the realm." this pleased her exceedingly, and even softened her ministers, insomuch that a promise was given to promote fleming as soon as possible, and to appoint bacon in his place. in those days there never existed the remotest notion of dismissing an attorney or solicitor general, any more than a judge; for, though they all alike held _during pleasure_, till the accession of the house of stuart the tenure of all of them was practically secure. an attempt was made to induce fleming to accept the appointment of queen's serjeant, which would have given him precedence over the attorney general; but this failed, for he would thereby have been considered as put upon the shelf, instead of being on the highway to promotion. elizabeth died, leaving bacon with no higher rank than that of queen's counsel; and on the accession of james i., fleming was reappointed solicitor general. the event justified his firmness in resisting the attempt to shelve him, for in the following year, on the death of sir william peryam, he was appointed chief baron of the exchequer. while he held this office, he sat along with lord chief justice popham on the trial of guy fawkes and the gunpowder conspirators; but he followed the useful advice for subordinate judges on such an occasion--"to look wise, and to say nothing." his most memorable judgment as chief baron was in what is called "the great case of impositions." this was, in truth, fully as important as hampden's case of ship money, but did not acquire such celebrity in history, because it was long acquiesced in, to the destruction of public liberty, whereas the other immediately produced the civil war. after an act of parliament had passed at the commencement of james's reign, by which an import duty of _s._ _d._ per cwt. was imposed upon currants, he by his own authority laid on an additional duty of _s._ _d._, making _s._ per cwt. bates, a levant merchant, who had imported a cargo of currants from venice, very readily paid the parliamentary duty of _s._ _d._ upon it, but refused to pay more; thereupon the attorney general filed an information in the court of exchequer, to compel him to pay the additional duty of _s._ _d._; so the question arose, whether he was by law compellable to do so. after arguments at the bar which lasted many days,-- _fleming, c. b._, said: "the defendant's plea in this case is without precedent or example, for he alleges that the imposition which the king has laid is '_indebitè, injustè, et contra leges angliæ imposita_, and, therefore, he refused to pay it.' the king, as is commonly said in our books, _cannot do wrong_; and if the king seize any land without cause, i ought to sue to him in humble manner (_humillime supplicavit_, &c.), and not in terms of opposition. the matter of the plea first regards the prerogative, and to derogate from that is a part most undutiful in any subject. next it concerns the transport of commodities into and out of the realm, the due regulation of which is left to the king for the public good. the imposition is properly upon currants, and not upon the defendant, for upon him no imposition shall be but by parliament.(!) the things are currants, a foreign commodity. the king may restrain the person of a subject in leaving or coming into the realm, and _a fortiori_, may impose conditions on the importation or exportation of his goods. to the king is committed the government of the realm; and bracton says, 'that for his discharge of his office god hath given him the power to govern.' this power is double--ordinary and absolute. the ordinary is for the profit of particular subjects--the determination of civil justice; that is nominated by civilians _jus privatum_, and it cannot be changed without parliament. the absolute power of the king is applied for the general benefit of the people; it is most properly named _policy_, and it varieth with the time, according to the wisdom of the king, for the common good. if this imposition is matter of state, it is to be ruled by the rules of policy, and the king hath done well, instead of 'unduly, unjustly, and contrary to the laws of england.' all commerce and dealings with foreigners, like war and peace and public treaties, are regulated and determined by the absolute power of the king. no importation or exportation can be but at the king's ports. they are his gates, which he may open or close when and on what conditions he pleases. he guards them with bulwarks and fortresses, and he protects ships coming hither from pirates at sea; and if his subjects are wronged by foreign princes, he sees that they are righted. ought he not, then, by the custom he imposes, to enable himself to perform these duties? the impost to the merchant is nothing, for those who wish for his commodities must buy them subject to the charge; and, in most cases, it shall be paid by the foreign grower, and not by the english consumer. as to the argument that the currants are _victual_, they are rather a delicacy, and are no more necessary than wine, on which the king lays what customs seemeth him good. for the amount of the imposition it is not unreasonable, seeing that it is only four times as much as it was before. the wisdom and providence of the king must not be disputed by the subject; by intendment they cannot be severed from his person. and to argue _a posse ad actum_, because by his power he may do ill, is no argument to be used in this place. if it be objected that no reason is assigned for the rise, i answer it is not reasonable that the king should express the cause and consideration of his actions; these are _arcana regis_, and it is for the benefit of every subject that the king's treasure should be increased." he then at enormous length went over all the authorities and acts of parliament, contending that they all prove the king's power to lay what taxes he pleases on goods imported, and he concluded by giving judgment for the crown. historians take no notice of this decision, although it might have influenced the destinies of the country much more than many of the battles and sieges with which they fill their pages. had our foreign commerce then approached its present magnitude, parliaments would never more have met in england,--duties on tea, sugar, timber, tobacco, and corn, imposed by royal proclamation, being sufficient to fill the exchequer,--and the experiment of ship money would never have been necessary. the chief baron most certainly misquotes, misrepresents, and mystifies exceedingly; but, however fallacious his reasoning, the judgment ought not to be passed over in silence by those who pretend to narrate our annals, for it was pronounced by a court of competent jurisdiction, and it was acted upon for years as settling the law and constitution of the country.[ ] king james declared that chief baron fleming was a judge to his heart's content. he had been somewhat afraid when he came to england that he might hear such unpalatable doctrines as had excited his indignation in buchanan's treatise, "_de jure regni apud scotis_," and he expressed great joy in the solemn recognition that he was an absolute sovereign. our indignation should be diverted from him and his unfortunate son, to the base sycophants, legal and ecclesiastical, who misled them. on the death of popham, no one was thought so fit to succeed him as fleming, of whom it was always said that, "_though slow, he was sure_;" and he became chief justice of england the very same day on which francis bacon mounted the first step of the political ladder, receiving the comparatively humble appointment of solicitor general. lord chief justice fleming remained at the head of the common law rather more than six years. during that time the only case of general interest which arose in westminster hall was that of the postnati. as might be expected, to please the king, he joined cordially in what i consider the illegal decision, that persons born in scotland after the accession of james to the throne of england, were entitled to all the privileges of natural born subjects in england, although it was allowed that scotland was an entirely separate and independent kingdom. luckily, the question is never likely again to arise since the severance of the crown of hanover from that of great britain; but if it should, i do not think that calvin's case could by any means be considered a conclusive authority, being founded upon such reasoning as that "if our king conquer a christian country, its laws remain till duly altered; whereas if he conquer an infidel country, the laws are _ipso facto_ extinct, and he may massacre all the inhabitants." lord chief justice fleming took the lead in the prosecution of the countess of shrewsbury before the privy council, on the charge of having refused to be examined respecting the part she had acted in bringing about a clandestine marriage, in the tower of london, between the lady arabella stuart, the king's cousin, and sir william somerset, afterwards duke of somerset. he laid it down for law, that "it was a high misdemeanor to marry, or to connive at the marriage of any relation of the king without his consent, and that the countess's refusal to be examined was 'a contempt of the king, his crown and dignity, which, if it were to go unpunished, might lead to many dangerous enterprises against the state.' he therefore gave it as his opinion that she should be fined £ , and confined during the king's pleasure." while this poor creature presided in the king's bench, he was no doubt told by his officers and dependants that he was the greatest chief justice that had appeared there since the days of gascoigne and fortescue; but he was considered a very small man by all the rest of the world, and he was completely eclipsed by sir edward coke, who at the same time was chief justice of the common pleas, and who, to a much more vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence. from the growing resistance in the nation to the absolute maxims of government professed by the king and sanctioned by almost all his judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a position which might give greater weight to his efforts on the popular side; but of this there seemed no prospect, for the subservient fleming was still a young man, and likely to continue many years the tool of the government. in the midst of these gloomy anticipations, on the th day of october, , the joyful news was spread of his sudden death. i do not know, and i have taken no pains to ascertain, where he was buried, or whether he left any descendants. in private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the common pleas, the position for which nature had intended him. chapter vi. nicholas hyde. after the abrupt dissolution of the second parliament of charles i. without the grant of a supply, all redress of grievances being refused, the plan was deliberately formed of discontinuing entirely the use of popular assemblies in england, and of ruling merely by prerogative. for this purpose it was indispensably necessary that the king should have the power of imposing taxes, and the power of arbitrary imprisonment. he began to exercise both these powers by assessing sums which all persons of substance were called upon to contribute to the revenue according to their supposed ability, and by issuing warrants for committing to jail those who resisted the demand. but these measures could not be rendered effectual without the aid of the judges; for hitherto in england the validity of any fiscal imposition might be contested in a court of justice; and any man deprived of his liberty might, by suing out a writ of _habeas corpus_, have a deliberate judgment upon the question "whether he was lawfully detained in custody or not." sir thomas darnel, sir edmund hampden, and other public-spirited men, having peremptorily refused to pay the sums assessed upon them, had been cast into prison, and were about to seek legal redress for their wrongs. in the coming legal contest, almost every thing would depend upon the chief justice of the king's bench. according to a well-known fashion which prevailed in those times, the attorney general, by order of the government, sounded sir randolph crewe, then holding that office, to which he had been appointed hardly two years before, respecting his opinions on the agitated points, and was shocked to hear a positive declaration from him that by the law of england, no tax or talliage, under whatever name or disguise, can be laid upon the people without the authority of parliament, and that the king cannot imprison any of his subjects without a warrant specifying the offence with which they are charged. this being reported to the cabinet, sir randolph crewe was immediately dismissed from his office; and, in a few weeks after, sir nicholas hyde was made chief justice in his stead. he was the uncle of the great lord clarendon. they were sprung from the ancient family of "_hyde of that ilk_" in the county palatine of chester; their branch of it having migrated, in the sixteenth century, into the west of england. the chief justice was the fourth son of lawrence hyde, of gussage st. michael, in the county of dorset. before being selected as a fit tool of an arbitrary government, he had held no office whatever; but he had gained the reputation of a sound lawyer, and he was a man of unexceptionable character in private life. he was known to be always a stanch stickler for prerogative; but this was supposed to arise rather from the sincere opinion he had formed of what the english constitution was, or ought to be, than from a desire to recommend himself for promotion. he is thus good naturedly introduced by rushworth:-- "sir randolf crewe, showing no zeal for the advancement of the loan, was removed from his place of lord chief justice, and sir nicholas hyde succeeded in his room--a person who, for his parts and abilities, was thought worthy of that preferment; yet, nevertheless, came to the same with a prejudice, coming in the place of one so well-beloved, and so suddenly removed." whether he was actuated by mistaken principle or by profligate ambition, he fully justified the confidence reposed in him by his employers. soon after he took his seat in the court of king's bench, sir thomas darnel and several others, committed under the same circumstances, were brought up before him on a writ of _habeas corpus_; and the question arose whether the king of england, by _lettre de cachet_, had the power of perpetual imprisonment without assigning any cause. the return of the jailer, being read, was found to set out, as the only reason for sir thomas darnel's detention, a warrant, signed by two privy councillors, in these words:-- "whereas, therefore, the body of sir thomas darnel hath been committed to your custody, these are to require you still to detain him, and to let you know that he was and is committed by the special command of his majesty." lord chief justice hyde proceeded with great temper and seeming respect for the law, observing, "whether the commitment be by the king or others, this court is a place where the king doth sit in person, and we have power to examine it; and if any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison again." selden, noy,[ ] and the other counsel for the prisoners, encouraged by this intimation, argued boldly that the warrant was bad on the face of it, _per speciale mandatum domini regis_ being too general, without specifying an offence for which a person was liable to be detained without bail; that the warrant should not only state the authority to imprison, but the cause of the imprisonment; and that if this return were held good, there would be a power of shutting up, till a liberation by death, any subject of the king, without trial and without accusation. after going over all the common law cases and the acts of parliament upon the subject, from magna charta downwards, they concluded with the _dictum_ of paul the apostle, "it is against reason to send a man to prison without showing a cause." _hyde, c. j._--"this is a case of very great weight and great expectation. i am sure you look for justice from hence, and god forbid we should sit here but to do justice to all men, according to our best skill and knowledge; for it is our oaths and duties so to do. we are sworn to maintain all prerogatives of the king: that is one branch of our oath; but there is another--to administer justice equally to all people. that which is now to be judged by us is this: 'whether, where one is committed by the king's authority, and by cause declared of his commitment, we ought to deliver him by bail, or to remand him.'" from such a fair beginning,[ ] there must have been a general anticipation of a just judgment; but, alas! his lordship, without combating the arguments, statutes, or texts of scripture relied upon, said, "the court must be governed by precedents;"[ ] and then going over all the precedents which had been cited, he declared that there was not one where, there being a warrant _per speciale mandatum domini regis_, the judges had interfered and held it insufficient. he said he had found a resolution of all the judges in the reign of queen elizabeth, that if a man be committed by the commandment of the king, he is not to be delivered by a _habeas corpus_ in this court, "for we know not the cause of the commitment." thus he concluded:-- "what can we do but walk in the steps of our forefathers? mr. attorney hath told you the king has done it for cause sufficient, and we trust him in great matters. he is bound by law, and he bids us proceed by law; we are sworn so to do, and so is the king. we make no doubt the king, he knowing the cause why you are imprisoned, will have mercy. on these grounds we cannot deliver you, but you must be remanded."[ ] this judgment was violently attacked in both houses of parliament. in the house of lords the judges were summoned, and required to give their reasons for it. sir nicholas hyde endeavored to excuse himself and his brethren from this task by representing it as a thing they ought not to do without warrant from the king. lord say observed, "if the judges will not declare themselves, we must take into consideration the point of our privilege." to soothe the dangerous spirit which disclosed itself, buckingham obtained leave from the king that the judges should give their reasons, and sir nicholas hyde again went over all the authorities which had been cited in the king's bench in support of the prerogative. these were not considered by any means satisfactory; but, as the chief justice could no longer be deemed contumacious, he escaped the commitment with which he had been threatened. sir edward coke,[ ] and the patriots in the house of commons, were not so easily appeased, and they for some time threatened lord chief justice hyde and his brethren with an impeachment; but it was hoped that all danger to liberty would be effectually guarded against for the future by compelling the reluctant king to agree to the petition of right. before charles would give the royal assent to it--meaning not to be bound by it himself, but afraid that the judges would afterwards put limits to his power of arbitrary imprisonment--he sent for chief justice hyde and chief justice richardson, of the common pleas, to whitehall, and directed them to return to him the answer of themselves and their brethren to this question, "whether in no case whatsoever the king may commit a subject without showing cause." the answer shows that they had been daunted by the denunciations of sir edward coke, and that they were driven to equivocate: "we are of opinion that, by the general rule of law, the cause of commitment by his majesty ought to be shown; yet some cases may require such secrecy that the king may commit a subject without showing the cause, for a convenient time." charles then delivered to them a second question, and desired them to keep it very secret, "whether, if to a _habeas corpus_ there be returned a warrant from the king without any special cause, the judges ought to liberate him before they understand from the king what the cause is." they answered, "if no cause be assigned in the warrant, the party ought, by the general rule of law, to be liberated; but, if the case requireth secrecy, and may not presently be disclosed, the court, in its discretion, may forbear to liberate the prisoner for a convenient time, till they are advertised of the truth thereof." he then came to the point with his third question, "whether, if the king grant the commons' petition, he doth not thereby exclude himself from committing or restraining a subject without showing a cause." hyde reported this response: "every law, after it is made, hath its exposition, which is to be left to the courts of justice to determine; and, although the petition be granted, there is no fear of conclusion, as is intimated in the question." the judges having thus pledged themselves to repeal the act for him by misconstruing it,[ ] he allowed it to be added to the statute book. no sooner was the parliament that passed it abruptly dissolved than it was flagrantly violated, and selden, sir john eliot, and other members of the house of commons, were arrested for the speeches they had delivered, and for requiring the speaker to put from the chair a motion which had been made and seconded. this proceeding was more alarming to public liberty than any thing that had been before attempted by the crown; if it succeeded, there was no longer the hope of any redress in parliament for the corrupt decisions of the common law courts. to make all sure by an extrajudicial opinion,[ ] lord chief justice hyde and the other judges were assembled at serjeants' inn, and, by the king's command, certain questions were put to them by the attorney general. the answers to these, given by the mouth of the chief justice, if acted upon, would forever have extinguished the privilege and the independence of the house of commons: "that a parliament man committing an offence against the king in parliament, not in a parliamentary course, may be punished after the parliament is ended; for, though regularly he cannot be compelled out of parliament to answer things done in parliament in a parliamentary course, it is otherwise where things are done exorbitantly;" and "that by false slanders to bring the lords of the council and the judges, not in a parliamentary way, into the hatred of the people, and the government into contempt, was punishable out of parliament, in the star chamber, as an offence committed in parliament beyond the office, and besides the duty, of a parliament man." the parties committed were brought up by _habeas corpus_, and, the public being much scandalized, an offer was made that they might be bailed; but, they refusing to give bail, which they said would be compromising the privileges of the house of commons, lord chief justice hyde remanded them to jail. the attorney general having then filed an ex-officio information against them for their misconduct in parliament, they pleaded to the jurisdiction of the court "because these offences, being supposed to be done in parliament, ought not to be punished in this court, or elsewhere than in parliament." chief justice hyde tried at once to put an end to the case by saying that "all the judges had already resolved with one voice, that an offence committed in parliament, criminally or contemptuously, the parliament being ended, rests punishable in the court of king's bench, in which the king by intendment sitteth." the counsel for the defendants, however, would be heard, and were heard in vain; for chief justice hyde treated their arguments with scorn, and concluded by observing, "as to what was said, that an 'inferior court cannot meddle with matters done in a superior,' true it is that an inferior court cannot meddle with the _judgments_ of a superior court; but if particular members of a superior court offend, they are ofttimes punishable in an inferior court--as if a judge shall commit a capital offence in this court, he may be arraigned thereof at newgate. the behavior of parliament men ought to be parliamentary. parliament is a higher court than this, but every member of parliament is not a court, and if he commit an offence we may punish him. the information charges that the defendants acted _unlawfully_, and they could have no privilege to violate the law. no outrageous speeches have been made against a great minister of state in parliament that have not been punished." the plea being overruled, the defendants were sentenced to be imprisoned during the king's pleasure, and to be fined, sir john eliot in £ , and the others in smaller sums. this judgment was severely condemned by the house of commons at the meeting of the long parliament, and was afterwards reversed, on a writ of error, by the house of lords. but lord chief justice hyde escaped the fate of his predecessor, chief justice tresilian, who was hanged for promulgating similar doctrines, for he was carried off by disease when he had disgraced his office four years and nine months. he died at his house in hampshire, on the th of august, . in justice to the memory of sir nicholas hyde, i ought to mention that he was much respected and lauded by true courtiers. sir george croke describes him as "a grave, religious, discreet man, and of great learning and piety." oldmixon pronounces him to have been "a very worthy magistrate," and highly applauds his judgment in favor of the power of the crown to imprison and prosecute parliament men for what they have done in the house of commons. chapter vii. john brampston. on the vacancy in the office of chief justice of the king's bench, created by the death of sir thomas richardson, a. d. , the king and his ministers were exceedingly anxious to select a lawyer fitted to be his successor. resolved to raise taxes without the authority of parliament, they had launched their grand scheme of ship money, and they knew that its validity would speedily be questioned. to lead the opinions of the judges, and to make a favorable impression on the public, they required a chief on whose servility they could rely, and who, at the same time, should have a great reputation as a lawyer, and should be possessed of a tolerable character for honesty. such a man was mr. serjeant brampston. he was born at maldon, in essex, of a family founded there in the reign of richard ii. by a citizen of london, who had made a fortune in trade and had served the office of sheriff. when very young, he was sent to the university of cambridge; and there he gained high renown by his skill in disputation, which induced his father to breed him to the bar. accordingly, he was transferred to the middle temple, and studied law there for seven years with unwearied assiduity. at the end of this period, he was called to the bar, having then amassed a store of law sufficient to qualify him at once to step upon the bench. different public bodies strove to have the benefit of his advice; and very soon he was standing counsel for his own university, and likewise for the city of london, with an annual fee _pro concilio impenso et impendendo_, (for counsel given and to be given.) having been some years an "apprentice," he took the degree of serjeant at law. according to a practice very common in our profession, he had, in the language of mr. gurney, the famous stenographer, "started in the sedition line," that is, defending persons prosecuted for political offences by the government. he was counsel for almost all the patriots who, in the end of the reign of james i. and the beginning of the reign of charles i., were imprisoned for their refractory conduct in the house of commons; and one of the finest arguments to be found in our books is one delivered by him in sir thomas darnel's case, to prove that a warrant of commitment by order of the king, without specifying the offence, is illegal. he refused a seat in the house of commons, as it suited him better to plead for those who were in the tower than to be sent thither himself. by and by, the desire of obtaining the honors of the profession waxed strong within him, and he conveyed an intimation, by a friend, to the lord keeper that it would be much more agreeable to him to be retained for the government than to be always against it. the offer was accepted; he was taken into the counsels of noy, the attorney general, and he gave his assistance in defending all stretches of prerogative. promotions were now showered down upon him; he was made chief justice of ely, attorney general to the queen, king's serjeant, and a knight. although very zealous for the crown, and really unscrupulous, he was anxious to observe decency of deportment, and to appear never to transgress the line of professional duty. noy[ ] would have been the man to be appointed chief justice of the king's bench to carry through his tax by a judicial decision in its favor, but he had suddenly died soon after the ship money writs were issued; and, after him, sir john brampston was deemed the fittest person to place at the head of the common law judges. on the th of april, , his installation took place, which was, no doubt, very splendid; but we have no account of it except the following by sir george croke:-- "first, the lord keeper made a grave and long speech, signifying the king's pleasure for his choice, and the duties of his place; to which, after he had answered at the bar, returning his thanks to the king, and promising his endeavor of due performance of his duty in his place, he came from the bar into court, and there kneeling, took the oaths of supremacy and allegiance: then standing, he took the oath of judge: then he was appointed to come up to the bench, and then his patent (which was only a writ) being read, the lord keeper delivered it to him. but sir william jones (the senior puisne judge) said the patent ought to have been read before he came up to the bench."[ ] in quiet times, lord chief justice brampston would have been respected as an excellent judge. he was above all suspicion of bribery, and his decisions in private causes were sound as well as upright. but, unhappily, he by no means disappointed the expectations of the government.[ ] soon after his elevation, he was instructed to take the opinion privately of all the judges on the two celebrated questions:-- " . whether, in cases of danger to the good and safety of the kingdom, the king may not impose ship money for its defence and safeguard, and by law compel payment from those who refuse? . whether the king be not the sole judge both of the danger, and when and how it is to be prevented?" there is reason to think that he himself was taken in by the craft of lord keeper coventry, who represented that the opinion of the twelve judges was wanted merely for the king's private satisfaction, and that no other use would be made of it. at a meeting of all the judges in serjeant's inn hall, lord chief justice brampston produced an answer to both questions in the affirmative, signed by himself. nine other judges, without any hesitation, signed it after him; but two, croke and hutton, declared that they thought the king of england never had such a power, and that, if he ever had, it was taken away by the act _de tallagio non concedendo_, the petition of right, and other statutes; but they were induced to sign the paper upon a representation that their signature was a mere formality. the unscrupulous lord keeper, having got the paper into his possession, immediately published it to the world as the unanimous and solemn decision of all the judges of england; and payment of ship money was refused by john hampden alone. his refusal brought on the grand trial, in the exchequer chamber, upon the validity of the imposition. lord chief justice brampston, in a very long judgment, adhered to the opinion he had before given for the legality of the tax, although he characteristically expressed doubt as to the regularity of the proceeding on technical grounds. croke and hutton manfully insisted that the tax was illegal; but, all the other judges being in favor of the crown, hampden was ordered to pay his _s._ soon after, the same point arose in the court of king's bench in the case of the lord say, who, envying the glory which hampden had acquired, allowed his oxen to be taken as a distress for the ship money assessed upon him, and brought an action of trespass for taking them. but banks, the attorney general, moved that counsel might not be permitted to argue against what had been decided in the exchequer chamber; and lord chief justice brampston said, "such a judgment should be allowed to stand until it were reversed in parliament, and none ought to be suffered to dispute against it."[ ] the crown lawyers were thrown into much perplexity by the freak of the rev. thomas harrison, a country parson, who can hardly be considered a fair specimen of his order at that time, and must either have been a little deranged in his intellect, or animated by an extraordinary eagerness for ecclesiastical promotion. having heard that mr. justice hutton, while on the circuit, had expressed an opinion unfavorable to ship money, he followed him to london, and, while this reverend sage of the law was seated with his brethren on the bench of the court of common pleas, and westminster hall was crowded with lawyers, suitors, and idlers, marched up to him, and making proclamation, "_oyez! oyez! oyez!_" said with a loud voice, "mr. justice hutton, you have denied the king's supremacy, and i hereby charge you with being guilty of high treason." the attorney general, however much he might secretly honor such an ebullition of loyalty, was obliged to treat it as an outrage, and an _ex officio_ information was filed against the delinquent for the insult he had offered to the administration of justice. at the trial the reverend defendant confessed the speaking of the words, and gloried in what he had done, saying,-- "i confess that judges are to be honored and revered as sacred persons so long as they do their duty; but having taken the oath of supremacy many times, i am bound to maintain it, and when it is assailed, as by the denying of ship money, it is time for every loyal subject to strike in." _brampston, c. j._--"the denying of ship money may be, and i think is, very wrong; but is it against the king's supremacy?" _harrison._--"as a loyal subject, i did labor the defence of his majesty, and how can i be guilty of a crime? i say again that mr. justice hutton has committed treason, for upon his charge the people of the country do now deny ship money. his offence being openly committed, i conceived it not amiss to make an open accusation. the king will not give his judges leave to speak treason, nor have they power to make or pronounce laws against his prerogative. we are not to question the king's actions; they are only between god and his own conscience. '_sufficit regi, quod deus est._' this thesis i will stand to--that whatsoever the king in his conscience thinketh he may require, we ought to yield."[ ] the defendant having been allowed to go on in this strain for a long time, laying down doctrines new in courts of justice, although in those days often heard from the pulpit, the chief justice at last interposed, and said,-- "mr. harrison, if you have any thing to say in your own defence, proceed; but this raving must not be suffered. do you not think that the king may govern his people by law?" _harrison._--"yes, and by something else too. if i have offended his majesty in this, i do submit to his majesty, and crave his pardon." _brampston, c. j._--"your 'if' will be very ill taken by his majesty; nor can this be considered a submission." the defendant, being found guilty, was ordered to pay a fine to the king of £ , and to be imprisoned--without prejudice to the remedy of mr. justice hutton by action. such an action was accordingly brought, and so popular was mr. justice hutton, that he recovered £ , damages; whereas it was said that, if the chief justice had been the plaintiff in an action for defamation, he need not have expected more than a norfolk groat. lord chief justice brampston's services were likewise required in the star chamber. he there zealously assisted archbishop laud in persecuting williams, bishop of lincoln, ex-keeper of the great seal. when the sentence was to be passed on this unfortunate prelate, ostensibly for tampering with the witnesses who were to give evidence against him on a former accusation, which had been abandoned as untenable, but in reality for opposing laud's popish innovations in religious ceremonies, brampston declaimed bitterly against the right reverend defendant, saying,-- "i find my lord bishop of lincoln much to blame in persuading, threatening, and directing of witnesses--a foul fault in any, but in him most gross who hath _curam animarum_ throughout all his diocese. to destroy men's souls is most odious, and to be severely punished. i do hold him not fit to have the cure of souls, and therefore i do censure him to be suspended _tam ab officio quam a beneficio_, to pay a fine of £ , , and to be imprisoned during the king's pleasure." this sentence, although rigorously executed, did not satiate the vengeance of the archbishop; and the bishop, while lying a prisoner in the tower, having received some letters from one of the masters of westminster school, using disrespectful language towards the archbishop, and calling him "a little great man," a new information was filed against the bishop for not having disclosed these letters to a magistrate, that the writer might have been immediately brought to justice. of course he was found guilty; and when the deliberation arose about the punishment, thus spoke lord chief justice brampston:-- "the concealing of the libel doth by no means clear my lord bishop of lincoln, for there is a difference between a letter which concerns a private person and a public officer. if a libellous letter concern a private person, he that receives it may conceal it in his pocket or burn it; but if it concern a public person, he ought to reveal it to some public officer or magistrate. why should my lord of lincoln keep these letters by him, but to the end to publish them, and to have them at all times in readiness to be published? i agree in the proposed sentence, that, in addition to a fine of £ to the king, he do pay a fine of £ to the archbishop, seeing the offence is against so honorable a person, and there is not the least cause of any grievance or wrong that he hath done to my lord of lincoln. for his being degraded, i leave it to those of the ecclesiastical court to whom it doth belong. as to the pillory, i am very sorry and unwilling to give such a sentence upon any man of his calling and degree. but when i consider the quality of the person, and how much it doth aggravate the offence, i cannot tell how to spare him; for the consideration that should mitigate the punishment adds to the enormity of the offence." as no clerical crime had been committed for which degradation could be inflicted, and as it was thought not altogether decent that a bishop, wearing his lawn sleeves, his rochet, and his mitre, should stand on the pillory, to be pelted with brickbats and rotten eggs, the lord chief justice was overruled respecting this last suggestion, and the sentence was limited to the two fines, with perpetual imprisonment. the defendant was kept in durance under it till the meeting of the long parliament, when he was liberated; and, becoming an archbishop, he saw his persecutor take his place in the tower, while he himself was placed at the head of the church of england. now came the time when lord chief justice brampston himself was to tremble. the first grievance taken up was ship money; and both houses resolved that the tax was illegal, and that the judgment against hampden for refusing to pay it ought to be set aside. brampston was much alarmed when he saw strafford and laud arrested on a charge of high treason, and lord keeper finch obliged to fly beyond the seas. the next impeachment voted was against brampston himself and five of his brethren; but they were more leniently dealt with, for they were only charged with "high crimes and misdemeanors;" and happening to be in the house of lords when mr. waller brought up the impeachment, it was ordered "that the said judges for the present should enter into recognizances of £ , each to abide the censure of parliament." this being done, they enjoyed their liberty, and continued in the exercise of their judicial functions; but mr. justice berkeley, who had made himself particularly obnoxious by his indiscreet invectives against the puritans,[ ] was arrested while sitting on his tribunal in westminster hall, and committed a close prisoner to newgate. chief justice brampston tried to mitigate the indignation of the dominant powers by giving judgment in the case of _chambers_ v. _sir edward brunfield, mayor of london_, against the legality of ship money. to an action of trespass and false imprisonment, the defendant justified by his plea under "a writ for not paying of money assessed upon the plaintiff towards the finding of a ship." there was a demurrer to the plea, so that the legality of the writ came directly in issue. the counsel for the defendant rose to cite hampden's case and lord say's case, in which all their lordships had concurred, as being decisive in his favor; but brampston, c. j., said,-- "we cannot now hear this case argued. it hath been voted and resolved in the upper house of parliament and in the house of commons, _nullo contradicente_, that the said writ, and what was done by color thereof, was illegal. therefore, without further dispute thereof, the court gives judgment for the plaintiff."[ ] the commons were much pleased with this submissive conduct, but _pro forma_ they exhibited articles of impeachment against the chief justice. to the article founded on ship money he answered, "that at the conference of the judges he had given it as his opinion that the king could only impose the charge in case of necessity, and only during the continuance of that necessity." the impeachment was allowed to drop; and the chief justice seems to have coquetted a good deal with the parliamentary leaders, for, after the king had taken the field, he continued to sit in his court at westminster, and to act as an attendant to the small number of peers who assembled there, constituting the house of lords. but when a battle was expected, charles, being told that the chief justice of england was chief coroner, and, by virtue of his office, on view of the body of a rebel slain in battle, had authority to pronounce judgment of attainder upon him, so as to work corruption of blood and forfeiture of lands and goods, thought it would be very convenient to have such an officer in the camp, and summoned lord chief justice brampston to appear at head quarters in yorkshire. the lords were asked to give him leave of absence, to obey the king's summons, but they commanded him to attend them day by day at his peril. he therefore sent his two sons to make his excuse to the king. his majesty was highly incensed by his asking leave of the lords, and--considering another apology that he made, about the infirmity of his health and the difficulty of travelling in the disturbed state of the country, a mere pretence--by a _supersedeas_ under the great seal dismissed him from his office, and immediately appointed sir robert heath to be chief justice of england in his stead. brampston must now have given in his full adhesion to the parliamentary party, for in such favor was he with them, that, when the treaty of uxbridge was proceeding, they made it one of their conditions that he should be reappointed lord chief justice of the court of king's bench. having withdrawn entirely from public life, he spent the remainder of his days at his country house in essex. there he expired, on the d of september, , in the th year of his age. if courage and principle had been added to his very considerable talents and acquirements, he might have gained a great name in the national struggle which he witnessed; but, from his vacillation, he fell into contempt with both parties; and, although free from the imputation of serious crimes, there is no respect entertained for his memory. chapter viii. robert heath. we must now attend to sir robert heath, who was the last chief justice of charles i., and was appointed by him to pass judgment, not on the living, but on the dead. if we cannot defend all his proceedings, we must allow him the merit--which successful members of our profession can so seldom claim--of perfect consistency; for he started as a high prerogative lawyer, and a high prerogative lawyer he continued to the day of his death. he was of a respectable family of small fortune, in kent, and was born at etonbridge in that county. he received his early education at tonbridge school, and was sent from thence to st. john's college, cambridge. his course of study there is not known; but when he was transferred to the inner temple, we are told that he read law and history with the preconceived conviction that the king of england was an absolute sovereign; and so enthusiastic was he that he converted all he met with into arguments to support his theory. one most convenient doctrine solved many difficulties which would otherwise have perplexed him: he maintained that parliament had no power to curtail the essential prerogatives of the crown, and that all acts of parliament for such a purpose were _ultra vices_ and void. there is no absurdity in this doctrine, for a legislative assembly may have only a limited power, like the congress of the united states of america; and it was by no means so startling then as now, when the omnipotence of parliament has passed into a maxim. he had no respect whatever for the house of commons or any of its privileges, being of opinion that it had been called into existence by the crown only to assist in raising the revenue, and that, if it refused necessary supplies, the king, as _pater patriæ_, must provide for the defence of the realm in the same manner as before it had existence. he himself several times refused a seat in that assembly, which he said was "only fit for a pitiful puritan or a pretending patriot;" and he expressed a resolution to get on in his profession without beginning, as many of his brethren did, by herding with the seditious, and trying to undermine the powers which for the public good the crown had immemorially exercised and inalienably possessed. to enable him to defend these with proper skill and effect, he was constantly perusing the old records; and, from the conquest downwards, they were as familiar to him as the cases in the last number of the periodical reports are to a modern practitioner. upon all questions of prerogative law which could arise he was complete master of all the authorities to be cited for the crown, and of the answers to be given to all that could be cited against him. as he would neither go into parliament nor make a splash in westminster hall in the "sedition line," his friends were apprehensive that his great acquirements as a lawyer never would be known; but it happened that, in the year , he was appointed "reader" for the inner temple, and he delivered a series of lectures, explaining his views on constitutional subjects, which forever established his reputation. on the first vacancy which afterwards occurred in the office of solicitor general, he was appointed to fill it; and sir thomas coventry, the attorney general, expressed high satisfaction at having him for a colleague. very important proceedings soon after followed, upon the impeachment of lord bacon and the punishment of the monopolists; but, as these were all in parliament, he made no conspicuous figure during the remainder of the reign of james i. soon after the commencement of the reign of charles i., he was promoted to the office of attorney general; and then, upon various important occasions, he delivered arguments in support of the unlimited power of the crown to imprison and to impose taxes, which cannot now be read without admiration of the learning and ingenuity which they display. the first of these was when sir thomas darnel and his patriotic associates were brought by _habeas corpus_ before the court of king's bench, having been committed in reality for refusing to contribute to the forced loan, but upon a warrant by the king and council which did not specify any offence. i have already mentioned the speeches of their counsel.[ ] "to these pleadings for liberty," says hallam, "heath, the attorney general, replied in a speech of considerable ability, full of those high principles of prerogative which, trampling as it were on all statute and precedent, seemed to tell the judges that they were placed there to obey rather than to determine." "this commitment," he said, "is not in a legal and ordinary way, but by the special command of our lord the king, which implies not only the fact done, but so extraordinarily done, that it is notoriously his majesty's immediate act, and he wills that it should be so. shall we make inquiries whether his commands are lawful? who shall call in question the justice of the king's actions? is he to be called upon to give an account of them?" after arguing very confidently on the legal maxim that "the king can do no wrong,"[ ] the constitutional interpretation of which had not yet been settled, he goes on to show how _de facto_ the power of imprisonment had recently been exercised by the detention in custody, for years, of popish and other state prisoners, without any question or doubt being raised. "some," he observed, "there are in the tower who were put in it when very young: should they bring a _habeas corpus_, would the court deliver them?" he then dwelt at great length upon the resolution of the judges in the th of elizabeth in favor of a general commitment by the king, and went over all the precedents and statutes cited on the other side, contending that they were either inapplicable or contrary to law. he carried the court with him, and the prisoners were remanded without any considerable public scandal being then created. during the stormy session in which the "petition of right" was passed, heath, not being a member of the house of commons, had very little trouble; but once, while it was pending, he was heard against it as counsel for the king before a joint committee of lords and commons. upon this occasion he occupied two whole days in pouring forth his learning to prove that the proposed measure was an infringement of the ancient, essential, and inalienable prerogatives of the crown. he was patiently listened to, but he made no impression on lords or commons; and the king, after receiving an assurance from the judges that they would effectually do away with the statute when it came before them for interpretation, was obliged to go through the form of giving the royal assent to it. as soon as the parliament was dissolved, heath was called into full activity; and he now carried every thing his own way, for the extent of the royal prerogative was to be declared by the court of king's bench and the star chamber. sir john eliot, stroud, selden, and the other leaders of the country party who had been the most active in carrying the "petition of right," were immediately thrown into prison, and the attorney general having assembled the judges, they were as good as their word, by declaring that they had cognizance of all that happened in parliament, and that they had a right to punish whatsoever was done there by parliament men in an unparliamentary manner. the imprisoned patriots having sued out writs of _habeas corpus_, it appeared that they were detained under warrants signed by the king, "for notable contempts committed against ourself and our government, and for stirring up sedition against us." their counsel argued that a commitment by the king is invalid, as he must act by responsible officers; and that warrants in this general form were in direct violation of the "petition of right," so recently become law. but heath still boldly argued for the unimpaired power of arbitrary imprisonment, pretending that the "petition of right" was not a binding statute. "a petition in parliament," said he, "is no law, yet it is for the honor and dignity of the king to observe it faithfully; but it is the duty of the people not to stretch beyond the words and intention of the king, and no other construction can be made of the 'petition' than that it is a confirmation of the ancient rights and liberties of the subject. so that now the case remains in the same quality and degree as it was before the 'petition.'" he proceeded to turn into ridicule the whole proceedings of the late parliament, and he again went over the bead-roll of his precedents to prove that one committed by command of the king or privy council is not bailable. the prisoners were remanded to custody. in answer to the _information_, it was pleaded that a court of common law had no jurisdiction to take cognizance of speeches made in the house of commons; that the judges had often declared themselves incompetent to give an opinion upon such subjects; that the words imputed to sir john eliot were an accusation against the ministers of the crown, which the representatives of the people had a right to prefer; that no one would venture to complain of grievances in parliament if he should be subjected to punishment at the discretion of an inferior tribunal; that the alleged precedents were mere acts of power which no attempt had hitherto been made to sanction; and that, although part of the supposed offences had occurred immediately before the dissolution, so that they could not have been punished by the last parliament, they might be punished in a future parliament. but _heath, a. g._, replied that the king was not bound to wait for another parliament; and, moreover, that the house of commons was not a court of justice, nor had any power to proceed criminally, except by imprisoning its own members. he admitted that the judges had sometimes declined to give their judgment upon matters of privilege; but contended that such cases had happened during the session of parliament, and that it did not follow that an offence committed in the house might not be questioned after a dissolution. the judges unanimously held that, although the alleged offences had been committed in parliament, the defendants were bound to answer in the court of king's bench, in which all offences against the crown were cognizable. the parties refusing to put in any other plea, they were convicted, and the attorney general praying judgment, they were sentenced to pay heavy fines, and to be imprisoned during the king's pleasure. heath remained attorney general two years longer. the only difficulty which the government now had was to raise money without calling a parliament; and he did his best to surmount it. by his advice, a new tax was laid on cards, and all who refused to pay it he mercilessly prosecuted in the court of exchequer, where his will was law. all monopolies had been put down at the conclusion of the last reign, with the exception of new inventions. under pretence of some novelty, he granted patents, vested in particular individuals or companies the exclusive right of dealing in soap, leather, salt, linen rags, and various other commodities, although, of £ , thereby levied on the people, scarcely £ came into the royal coffers. his grand expedient was to compel all who had a landed estate of £ a year to submit to knighthood, and to pay a heavy fee; or, on refusal, to pay a heavy fine. this caused a tremendous outcry, and was at first resisted; but the question being brought before the court of exchequer, he delivered an argument in support of the claim, in which he traced knighthood from the ancient germans down to the reigns of the stuarts, showing that the prince had always the right of conferring it upon all who held of him _in capite_--receiving a reasonable compliment in return. in this instance, mr. attorney not only had the decision of the court, but the law on his side. blackstone says, "the prerogative of compelling the king's vassals to be knighted, or to pay a fine, was expressly recognized in parliament by the statute _de militibus_, ed. ii., but yet was the occasion of heavy murmurs when exerted by charles i., among whose many misfortunes it was, that neither himself nor his people seemed able to distinguish between the arbitrary stretch and the legal exertion of prerogative."[ ] all these expedients for filling the exchequer proving unproductive, the last hopes of despotism rested upon noy, who, having been a patriot, was eager to be the slave of the court, and proposed his ship money. if this should be supported by the judges, and endured by the people, parliaments for ever after would have been unnecessary. heath was willing enough to defend it; but the inventor was unwilling to share the glory or the profit of it with another. luckily, at that very time, a vacancy occurred in the office of chief justice of the common pleas; and there being an extreme eagerness to get rid of heath, notwithstanding his very zealous services to the crown, he was "put upon the cushion," and noy succeeded him as attorney general. to qualify him to be a judge, it was necessary that he should first become a serjeant; and, according to ancient custom, he distributed rings, choosing a motto which indicated his intention still to put the king above the law--"_lex regis, vis legis_." on the th of october, , he came in his parti-colored robes to the common pleas, and performed his ceremonies as serjeant, and the same day kept his feast in serjeants' inn; and afterwards, on the th of october, he was sworn in chief justice. in the four years during which he held this office, no case of public interest occurred in his own court; but he took an active part in the star chamber, and, having prosecuted the recorder of salisbury for breaking a painted window without the bishop's consent, he now sentenced him for the offence. the grand scheme of ship money, which had been long in preparation, was ready to be brought forward, when, to the astonishment of the world, heath was removed from his office. it has been said that the government was afraid of his opinion of ship money, and wished to prefer finch,--the most profligate of men,--on whom they could entirely rely. the truth seems to be, that he continued to enjoy the favor and confidence of the government, but that a charge had been brought against him of taking bribes, which was so strongly supported by evidence that it could not be overlooked, although no parliament was sitting, or ever likely to sit, and that the most discreet proceeding, even for himself, was to remove him quietly from his office. the removal of judges had, under the stuarts, become so common, that no great sensation was created by a new instance of it, and people merely supposed that some secret displeasure had been given to the king. heath presented a petition to the king, setting forth his services as attorney general in supporting the royal right to imprison and to tax the subject, as well as the good will he had manifested while he sat on the bench, and expressing a hope that, as he had been severely punished for his fault, he might not be utterly ruined, but might be permitted to practise at the bar. to this the king, by advice of the privy council, consented, on condition that he should be put at the bottom of the list of serjeants, and should not plead against the crown in the star chamber. accordingly, he took his place at the bar of the court of common pleas, as junior, where he had presided as chief, and speedily got into considerable business. he very soon again insinuated himself into the favor of the government, and assisted sir john banks, the attorney general, in state prosecutions. he first addressed the jury for the crown in the famous case of thomas harrison, indicted for insulting mr. justice hutton in open court; leaving the attorney general to sum up the evidence. not having been on the bench when the judges gave the extrajudicial opinion in favor of ship money, nor when hampden's trial came on, he escaped impeachment at the meeting of the long parliament; and on the removal of those who were impeached, he was made a puisne judge of the court of king's bench. when hostilities were about to commence, he happened to be judge of assize at york, where the king lay. he always protested that he was innocent of any plot to make himself chief justice of the king's bench; yet, knowing that, from bodily infirmity and lukewarmness in the royal cause, brampston would not come to york when summoned by the king, there is strong reason to suspect that he suggested the propriety of this summons, on the pretence that the chief justice of england might, as chief coroner, declare an attainder of rebels slain in battle, which would subject their lands and goods to forfeiture. brampston was ordered to come to york, and not making his appearance, he was removed from his office; and sir robert heath was created chief justice of england, that he might attaint the slaughtered rebels. sir john brampston, the autobiographer, son of the judge whom heath superseded, says, "when sir robert heath had that place, that opinion vanished, and nothing of that nature was ever put in practice." but in the autumn of the year , the royalists having gained an ascendency in the west of england, a scheme was formed to outlaw, for high treason, the leaders on the parliament side--as well those who were directing military operations in the field, as the non-combatants who were conducting the government at westminster. a commission passed the great seal, at oxford, directed to lord chief justice heath and three other judges who had taken the king's side, to hold a court of oyer and terminer at salisbury. accordingly, they took their seats on the bench, and swore in a grand jury, whom heath addressed, explaining the law of high treason, showing that flagrant overt acts had been committed by conspiring the king's death and levying war against him, and proving by authorities that all who aided and assisted by furnishing supplies, or giving orders or advice to the rebels, were as guilty as those who fought against his majesty with deadly weapons in their hands. bills of indictment were then preferred against the earls of northumberland, pembroke, and salisbury, and divers members of the house of commons. the grand jury, however,--probably without having read grotius and the writers on public law, who say that when there is a civil war in a country the opposite parties must treat each other as if they were belligerents belonging to two independent nations, but actuated by a sense of the injustice and impolicy of treating as common malefactors those who, seeking to reform abuses and vindicate the liberties of their fellow-citizens, were commanding armies and enacting laws,--returned all the bills _ignoramus_; and there could neither be any trial nor process of outlawry. this rash attempt only served to produce irritation, and to render the parliamentarians more suspicious and revengeful when negotiations were afterwards opened which might have led to a satisfactory accommodation. in the summer of the following year, chief justice heath held assizes at exeter, and there actually obtained the conviction of captain turpine, a parliamentary officer, who had been taken in arms against the king, and was produced as a prisoner at the bar. the sheriff appears to have refused to carry the sentence into execution; but the unfortunate gentleman was hanged by sir john berkeley, governor of exeter. the parliament, having heard of their partisan being thus put to death in cold blood, ordered that the judges who condemned him might be impeached of high treason; but they were afterwards satisfied with passing an ordinance to remove heath, and his brethren who had sat with him on this occasion, from their judicial offices, and to disable them from acting as judges in all time to come. sir robert heath never ventured to take his seat as chief justice of the court of king's bench at westminster; but, after travelling about for some time with the king, fixed himself at oxford, where he was made a doctor of the civil law, and attended as a judge when charles's parliament was held there. when oxford was at last obliged to surrender, and the royalists could no longer make head in any part of england, heath found it necessary to fly for safety to the continent. the parliamentary leaders said that they would not have molested him if he had confined himself to the discharge of his judicial duties; or even if, like lord keeper littleton and other lawyers, he had carried arms for the king; but as, contrary to the law of nations, he had proceeded against several of those who bore a commission which the parliament had granted to them in the king's name, they were determined to make an example of him. therefore, when an ordinance was passed, granting an indemnity to the royalists who submitted, he was excepted from it by name. after suffering great privations, he died at caen, in normandy, in the month of august, . he had, from his professional gains, purchased a large landed estate, which was sequestrated by the parliament, but afterwards was restored by charles ii. to his son. he had never tried to make his peace with the dominant party by any concession, and he declared that "he would rather suffer all the ills of exile than submit to the rule of those who had first fought their sovereign in the field, and then had murdered him on the scaffold." with the exception of his bribery, which was never properly inquired into, and does not seem to have injured him much in the opinion of his contemporaries, no grievous stain is attached to his memory; and we must feel respect for the constancy with which he adhered to his political principles, although we cannot defend them. chapter ix. robert foster. at the restoration of charles ii. it was considered necessary to sweep away the whole of the judges from westminster hall, although, generally speaking, they were very learned and respectable, and they had administered justice very impartially and satisfactorily.[ ] immense difficulty was found in replacing them. clarendon was sincerely desirous to select the fittest men that could be found, but from his long exile he was himself entirely unacquainted with the state of the legal profession, and, upon making inquiries, hardly any could be pointed out, whose political principles, juridical acquirements, past conduct, and present position entitled them to high preferment. the most eminent barristers on the royalist side had retired from practice when the civil war began, and the new generation which had sprung up had taken an oath to be faithful to the commonwealth. one individual was discovered--sir orlando bridgman--eminent both for law and for loyalty. early distinguished as a rising advocate, he had sacrificed his profits that he might assist the royal cause by carrying arms; and, refusing to profess allegiance to those whom he considered rebels, he had spent years in seclusion,--still devoting himself to professional studies, in which he took the highest delight. at first, however, it was thought that he could not properly be placed in a higher judicial office than that of chief baron of the exchequer; and the chiefships of the king's bench and common pleas were allowed to remain vacant some months, _puisnies_ being appointed in each court to carry on the routine business. at last a chief justice of england was announced--sir robert foster; and his obscurity testified the perplexity into which the government had been thrown in making a decent choice. he was one of the very few survivors of the old school of lawyers, which had flourished before the troubles began; he had been called to the degree of serjeant at law so long ago as the th of may, , at a time when charles i., with strafford for his minister, was ruling with absolute sway, was imposing taxes by his own authority, was changing the law by proclamation, and hoped never again to be molested by parliaments. this system was condemned and opposed by the most eminent men at the english bar, but was applauded and supported by some who conscientiously thought that all popular institutions were mischievous, and by more who thought that court favor gave them the best chance of rising in the world. foster is supposed to have defended ship money, the cruel sentences of the star chamber, the billeting of soldiers to live at free quarters, and other flagrant abuses, as well from a sincere love of despotism as from a desire to recommend himself to those in power.[ ] at the time when tyranny had reached its culminating point, he was appointed a puisne judge of the court of common pleas. luckily for him, hampden's case had been decided before his appointment, and he was not impeached by the long parliament. when the civil war broke out, he followed the king; and afterwards assisted in attempting to hold a court of common pleas at oxford, but sat alone, and his tribunal was without advocates or suitors. an ordinance passed the house of commons for removing him from his office, and on account of his excessive zeal in the royal cause, he was obliged to compound for his estate by paying a very large fine. after the king's death, he continued in retirement till the restoration. he is said to have had a small chamber in the temple, and like sir orlando bridgman and sir jeffery pelman, to have practised as a chamber counsel, chiefly addicting himself to conveyancing. the first act of the government of charles ii. was to reinstate foster in his old office. there was a strong desire to reward his constancy with fresh honors; but he was thought unfit to be raised higher, and the office of chief justice of the king's bench could not be satisfactorily filled up. only six common law judges had been appointed when the trials of the regicides came on. foster, being one of them, distinguished himself for his zeal; and when they were over, all scruples as to his fitness having vanished, he, who a few months before, shut up in his chamber that he might escape the notice of the roundheads, never expected any thing better than to receive a broad piece for preparing a conveyance according to the recently invented expedient of "lease and release," was constituted the highest criminal judge in the kingdom. he presided in the court of king's bench for two years. being a deep black letter lawyer, he satisfactorily disposed of the private cases which came before him, although he was much perplexed by the improved rules of practice introduced while he was in retirement, and he was disposed to sneer at the decisions of chief justice rolle, a man in all respects much superior to himself. in state prosecutions he showed himself as intemperate and as arbitrary as any of the judges who had been impeached at the meeting of the long parliament. to him chiefly is to be imputed the disgraceful execution as a traitor, of one who had disapproved of the late king's trial; who was included in the present king's promise of indemnity from breda;[ ] in whose favor a petition had been presented by the convention parliament; who was supposed to be expressly pardoned by the answer to that petition;[ ] but who had incurred the inextinguishable hatred of the cavaliers by the part he had taken in bringing about the conviction of the earl of strafford. sir henry vane the younger,[ ] after lying two years in prison, during which the shame of putting him to death was too strong to be overcome, was at last arraigned for high treason at the king's bench bar. as he had actually tried to save the life of charles i., the treason charged upon him was for conspiring the death of charles ii., whose life he would have been equally willing to defend. the indictment alleged this overt act, "that he did take upon him the government of the forces of this nation by sea and land, and appointed colonels, captains, and officers." the crown lawyers admitted that the prisoner had not meditated any attempt upon the natural life of charles ii., but insisted that, by acting under the authority of the commonwealth, he had assisted in preventing the true heir of the monarchy from obtaining possession of the government, and thereby, in point of law, had conspired his death, and had committed high treason. unassisted by counsel, and browbeaten by lord chief justice foster, he made a gallant defence; and besides pointing out the bad faith of the proceeding, after the promises of indemnity and pardon held out to him, contended that, in point of law, he was not guilty, on the ground that charles ii. had never been in possession of the government as king during any part of the period in question: that the supreme power of the state was then vested in the parliament, whose orders he had obeyed; that he was in the same relation to the exiled heir as if there had been another king upon the throne; and that the statute of henry vii., which was only declaratory of the common law and of common sense, expressly provided that no one should ever be called in question for obeying, or defending by force of arms, a king _de facto_, although he had usurped the throne. he concluded by observing that the whole english nation might be included in the impeachment. _foster, c. j._--"had there been another king on the throne, though a usurper, you might have been exempted by the statute from the penalties of treason. but the authority you recognized was called by the rebels either 'commonwealth' or 'protector,' and the statute takes no notice of any such names or things. from the moment that the martyred sovereign expired, our lord the king that now is must be considered as entitled to our allegiance, and the law declares that he has ever since occupied his ancestral throne. therefore, obedience to any usurped authority was treason to him. you talk of the sovereign power of parliament, but the law knows of no sovereign power except the power of our sovereign lord the king. with respect to the number against whom the law shall be put in force, that must depend upon his majesty's clemency and sense of justice. to those who truly repent he is merciful; but the punishment of those who repent not is a duty we owe both to god and to our fellow-men." a verdict of guilty being returned, the usual sentence was pronounced; but the king, out of regard to his own reputation, if not to the dictates of justice and mercy, was very reluctant to sanction the execution of it, till chief justice foster, going the following day to hampton court to give him an account of the trial, represented the line of defence taken by the prisoner as inconsistent with the principles of monarchical government, and said that the supposed promises of pardon were by no means binding, "for god, though ofttimes promising mercy, yet intends his mercy only for the penitent." the king, thus wrought on, notwithstanding his engagement to the contrary, signed the death-warrant, and vane was beheaded on tower hill, saying with his last breath, "i value my life less in a good cause than the king does his promise." mr. fox, and other historians, consider this execution "a gross instance of tyranny," but have allowed chief justice foster, who is mainly responsible for it, to escape without censure. the arbitrary disposition of this chief justice was strongly manifested soon after, when john crook, and several other very loyal quakers, were brought before him at the old bailey for refusing to take the oath of allegiance. _foster, c. j._--"john crook, when did you take the oath of allegiance?" _crook._--"answering this question in the negative is to accuse myself; which you ought not to put me upon. '_nemo debet seipsum prodere._' i am an englishman, and i ought not to be taken, nor imprisoned, nor called in question, nor put to answer, but according to the law of the land." _foster, c. j._:--"you are here required to take the oath of allegiance, and when you have done that, you shall be heard." _crook._--"you that are judges on the bench ought to be my counsel, not my accusers." _foster, c. j._--"we are here to do justice, and are upon our oaths; and we are to tell you what is law, not you us. therefore, sirrah, you are too bold." _crook._--"_sirrah_ is not a word becoming a judge. if i speak loud, it is my zeal for the truth and for the name of the lord. mine innocency makes me bold." _foster, c. j._--"it is an evil zeal." _crook._--"no, i am bold in the name of the lord god almighty, the everlasting jehovah, to assert the truth and stand as a witness for it. let my accuser be brought forth." _foster, c. j._--"sirrah, you are to take the oath, and here we tender it you." _crook._--"let me be cleared of my imprisonment, and then i will answer to what is charged against me. i keep a conscience void of offence, both towards god and towards man." _foster, c. j._--"sirrah, leave your canting." _crook._--"is this canting, to speak the words of the scripture?" _foster, c. j._--"it is canting in your mouth, though they are st. paul's words. your first denial to take the oath shall be recorded; and on a second denial, you bear the penalties of a _præmunire_, which is the forfeiture of all your estate, if you have any, and imprisonment during life." _crook._--"i owe dutiful allegiance to the king, but cannot _swear_ without breaking my allegiance to the king of kings. we dare not break christ's commandments, who hath said, _swear not at all_; and the apostle james says, 'above all things, my brethren, _swear not_.'" crook, in his account of the trial, says, "the chief justice thereupon interrupting, called upon the executioner to stop my mouth, which he did accordingly with a dirty cloth and a gag." the other quakers following crook's example, they were all indicted for having a second time refused to take the oath of allegiance; and being found guilty, the court gave judgment against them of forfeiture, imprisonment for life, and moreover, that they were "out of the king's protection;" whereby they carried about with them _caput lupinum_, (a wolf's head,) and might be put to death by any one as noxious vermin. the last trial of importance at which chief justice foster presided was that of thomas tonge and others, charged with a plot to assassinate the king. general ludlow says that this was got up by the government to divert the nation from their ill humor, caused by the sale of dunkirk;[ ] the invention being, "that divers thousands of ill-affected persons were ready under his command to seize the tower and the city of london, then to march directly to whitehall, in order to kill the king and monk, with a resolution to give no quarter; and after that to declare for a commonwealth." the case was proved by the evidence of supposed accomplices, which was held to be sufficient without any corroboration. the chief justice seems to have been very infirm and exhausted; for thus he summed up,-- "my masters of the jury, i cannot speak loud to you; you understand this business, such as i think you have not had the like in your time; my speech will not give me leave to discourse of it. the witnesses may satisfy all honest men: it is clear that they all agreed to subvert the government, and to destroy his majesty. what can you have more. the prisoners are in themselves inconsiderable; they are only the outboughs; but if such fellows are not met withal, they are the fittest instruments to set up a jack straw and a wat tyler; therefore you must lop them off, as they will encourage others. i leave the evidence to you; go together." the prisoners being all found guilty, the chief justice thus passed sentence upon them,-- "you have committed the greatest crime against god, our king, and your country, and against every good body that is in this land; for that capital sin of high treason is a sin inexpiable, and, indeed, hath no equal sin as to this world. meddling with them that are given to change hath brought too much mischief already to this nation; and if you will commit the same sin, you must receive the same punishment, for happy is he who by other men's harms takes heed." they were all executed, protesting their innocence. the chief justice went a circuit after this trial, in the hope that country air would revive him. however, he became weaker and weaker, and, although much assisted by his brother judge, he with great difficulty got to the last assize town. from thence he travelled by slow stages to his house in london, where, after languishing for a few weeks, he expired, full of days, and little blamed for any part of his conduct as a judge, however reprehensible it may appear to us, trying it by a standard which he would have thought only fit to be proposed by rebels. chapter x. robert hyde. on the death of sir robert foster, lord clarendon thought that he might fairly do a job for an aged kinsman, of respectable, if not brilliant reputation; and he appointed sir robert hyde chief justice of the king's bench. they were cousins-german, being grandsons of lawrence hyde, of west hatch, in the county of wilts, and nephews of sir nicholas hyde, chief justice of the king's bench in the commencement of the reign of charles i. the hydes were the most distinguished race of the robe in the th century. robert's father was likewise a lawyer of renown, being attorney general to anne of denmark, queen of james i., and he had twelve sons, most of whom followed their father's profession. robert seems to have been a very quiet man, and to have got on by family interest and by plodding. although edward, the future chancellor, played such a distinguished part during the troubles,--first as a moderate patriot, and then as a liberal conservative,--robert, the future chief justice, was not in the house of commons, nor did he enlist under the banner of either party in the field. just before the civil war broke out, he was called to the degree of serjeant at law, and he continued obscurely to carry on his profession during all the vicissitudes of the twenty eventful years between and . at the restoration, he was made a puisne judge of the common pleas, and, acting under chief justice bridgman, he acquitted himself creditably. when he was installed chief justice of the king's bench, lord chancellor clarendon himself attended in court, and thus addressed him:-- "it's a sign the troubles have been long, that there are so few judges left, only yourself; and after so long suffering of the law and lawyers, the king thought fit to call men of the best reputation and learning, to renew the reverence due and used to the law and lawyers; and the king, as soon as the late chief justice was dead, full of days and of honors, did resolve on you as the ancientest judge left; and your education in this court gives you advantage here above others, as you are the son of an eminent lawyer as any in his days, whose felicity was to see twelve sons, and you one of the youngest a serjeant, and who left you enough, able to live without the help of an elder brother. for your integrity to the crown, you come to sit here. the king and the kingdom do expect great reformation from your activity. for this reason, the king, when i told him chief justice foster was dead, made choice of you. courage in a judge is necessary as in a general;[ ] therefore you must not want this to punish sturdy offenders. the genteel wickedness of duelling i beseech you inquire into; the carriers of challenges, and fighters, however they escape death, the fining and imprisoning of them will make them more dread this court than the day of judgment." _hyde, c. j._--"i had ever thought of the advice of the wise man, 'not to seek to be a judge, nor ask to sit in the seat of honor,' being conscious of my own defects and small learning. but, seeing his majesty's grace, i shall humbly submit, and serve him with my life, with all alacrity and duty. sins of infirmity i hope his majesty will pardon, and for wilful and corrupt dealings i shall not ask it. i attended in coke's time as a reporter here; and as he said when he was made chief justice i say now--'i will behave myself with all diligence and honesty.'" this chief justice was much celebrated in his day for checking the licentiousness of the press. a printer named john twyn, having printed a book containing passages which were said to reflect upon the king, was arraigned before him at the old bailey on an indictment for high treason. the prisoner being asked how he would be tried, said, "i desire to be tried in the presence of that god who is the searcher of all hearts, and the disposer of all things." _hyde, l. c. j._--"god almighty is present here, but you must be tried by him and your peers, that is, your country, or twelve honest men." _prisoner._--"i desire to be tried by god alone." _hyde, l. c. j._--"god almighty looks down, and beholds what we do here, and we shall answer severely if we do you any wrong. we are careful of our souls as you can be of yours. you must answer in the words of the law." _prisoner._--"by god and my country." it was proved clearly enough that he had printed the book, and some passages of it might have been considered libellous; but there was no other evidence against him, and he averred that he had unconsciously printed the book in the way of his trade. _hyde, l. c. j._--"there is here as much villany and slander as it is possible for devil or man to invent. to rob the king of the love of his subjects, is to destroy him in his person. you are here in the presence of almighty god, as you desired; and the best you can now do towards amends for your wickedness is by discovering the author of this villanous book. if not, you must not expect--and, indeed, god forbid--there should be any mercy shown you." _prisoner._--"i never knew the author of it." _hyde, l. c. j._--"then we must not trouble ourselves. you of the jury, there can be no doubt that publishing such a book as this is as high treason as can be committed, and my brothers will declare the same if you doubt." the jury having found a verdict of guilty,[ ] the usual sentence was pronounced by lord chief justice hyde, and the printer was drawn, hanged, and quartered accordingly. the next trials before his lordship, although the charge was not made capital, (as he said it might have been,) were equally discreditable to him. several booksellers were indicted for publishing a book which contained a simple and true account of the trial of the regicides, with their speeches and prayers. _hyde, l. c. j._--"to publish such a book is to fill all the king's subjects with the justification of that horrid murder. i will be bold to say no such horrid villany has been done upon the face of the earth since the crucifying of our savior. to print and publish this is sedition. he that prints a libel against me as sir robert hyde, and he that sets him at work, must answer it; much more when against the king and the state. _dying men's words_, indeed. if men are as villanous at their death as in their lives, may what they say be published as the words of dying men? god forbid! it is the king's great mercy that the charge is not for high treason." the defendants, being found guilty, were sentenced to be fined, to stand several hours in the pillory, and to be imprisoned for life. [in october, , chief justice hyde caused john keach to be indicted for libel, which indictment he proceeded forthwith to try, in a manner denounced by mr. dunning, in one of his speeches in the house of commons (dec. , ,) as "cruel, brutal, and illegal." keach had written a little book called the child's instructor; or a new and easy primer, in which were contained several things contrary to the doctrine and ceremonies of the church of england. keach taught that infants ought not to be baptized; that laymen may preach the gospel; that christ shall reign personally on the earth in the latter day, &c. he had no sooner received a few copies from london, where the book was printed, than a justice of the peace, who had heard of it, entered his house with a constable, seized several of the books, and bound keach over to answer for it at the next assizes at aylsbury. chief justice hyde presiding, keach was called to the bar, when the following dialogue ensued:-- _hyde._--did you write this book? (holding out one of the primers.)[ ] _keach._--i writ most of it. _hyde._--what have you to do to take other men's trades out of their hands? i believe you can preach as well as write books. thus it is to let you and such as you are have the scripture to wrest to your own destruction. you have made in your book a new creed. i have seen three creeds before, but i never saw a fourth till you made one. _keach._--i have not made a creed, but a confession of the christian faith. _hyde._--well, that is a creed, then. _keach._--your lordship said you had never seen but three creeds, but thousands of christians have made a confession of their faith. the chief justice having denounced several things contained in the book as contrary to the liturgy of the church of england, and so a breach of the test of uniformity-- _keach._--my lord, as to those things-- _hyde._--you shall not preach here, nor give the reasons of your damnable doctrine, to seduce and infect his majesty's subjects. these are not things for such as you to meddle with, and to pretend to write books of divinity; but i will try you for it before i sleep. he then directed an indictment to be drawn up, and thus addressed the grand jury:-- "gentlemen of the grand jury: i shall send you presently a bill against one that hath taken upon him to write a new primer for the instruction of your children. he is a base and dangerous fellow; and if this be suffered, children by learning of it will become such as he is; and therefore i hope you will do your duty." a long indictment having been found, in which divers passages from the book were set forth as damnable, seditious, wicked, and contrary to the statute in that case made and provided, keach was called upon to plead to it. he asked for a copy, and liberty to confer with counsel, and to put in his exceptions before pleading. but chief justice hyde compelled him to plead before he would give him a copy, and then would allow him only an hour's time to consider it, which, as not long enough to be of any benefit, keach declined to accept. the evidence was, that thirty copies of the book had been seized at keach's house by the justice and constable, and that keach on his examination before the justice had confessed himself the author, and that he had received from london about forty copies, of which he had dispersed about twelve. hyde then caused the passages contained in the indictment to be read, remarking on each to show that it was contrary to the book of common prayer. this done, the prisoner began to speak in his defence. _keach._--as to the doctrines-- _hyde._--you shall not speak here except to the matter of fact; that is to say, whether you writ this book or not.[ ] _keach._--i desire liberty to speak to the particulars of my indictment, and those things that have-- _hyde._--you shall not be suffered to give the reasons for your damnable doctrine here to seduce the king's subjects. _keach._--is my religion so bad that i may not be allowed to speak? _hyde._--i know your religion; you are a fifth monarchy man; and you can preach as well as write books; and you would preach here if i would let you; but i shall take such order as you shall do no more mischief.[ ] after some altercation between the judge and the prisoner as to the facts and the evidence, hyde summed up and charged the jury; but after an absence of several hours one of the officers came in with a message that they could not agree. _hyde._--but they must agree. _officer._--they desire to know whether one of them may not come and speak to your lordship about something whereof they are in doubt. _hyde._--yes, privately; (and then ordered one to come to him on the bench.) the officer then called one, and he was set upon the clerk's table, and the judge and he whispered together a great while. it was observed that the judge, having his hands upon his shoulders, would frequently shake him as he spoke to him. upon this person's returning, the whole jury soon came in, and by their foreman delivered a verdict of guilty in part. _clerk._--of what part? _foreman._--there is something contained in the indictment which is not in the book. _clerk._--what is that? _foreman._--in the indictment he is charged with these words: "when the thousand years shall be expired, then shall all the rest of the church be raised;" but in the book it is, "then shall the rest of the dead be raised." _clerk._--is he guilty of all the rest of the indictment, that sentence excepted? _one of the jury._--i cannot in conscience find him guilty, because the words in the indictment and the book do not agree. _hyde._--that is only through a mistake of the clerk's, and in that sentence only; and you may find him guilty of all, that sentence excepted; but why did you come in before you were agreed? _foreman._--we thought we had been agreed. _hyde._--you must go out again and agree; and as for you that say you cannot in conscience find him guilty, if you say so again, without giving reasons for it, i _shall take an order with you_.[ ] we shall find an explanation of this last threat (which soon produced a verdict in accordance with the wishes of the chief justice) in hale's pleas of the crown,[ ] where it is stated that while hyde was acting as a judge of _nisi prius_, he introduced the illegal practice of fining juries for not rendering verdicts satisfactory to him. "i have seen," says hale, "arbitrary practice still go from one thing to another. the fines set upon grand inquests began; then they set fines upon the petit jurors for not finding according to the direction of the court; then afterwards the judges of _nisi prius_ proceeded to fine jurors in civil causes if they gave not a verdict according to direction, even in points of fact. this was done by a judge of assize [justice hyde, at oxford, vaugh. ] in oxfordshire, and the fine estreated; but i, by advice of most of the judges of england, stayed process upon that fine. [hale was at this time chief baron of the court of exchequer.] the like was done by the same judge in a case of burglary. the fine was estreated into the exchequer; but by the like advice i stayed process; and in the case of wagstaff, [vaugh. ,] and other jurors fined at the old bayley for giving a verdict contrary to direction, by advice of all the judges of england, (only one dissenting,) it was ruled to be against law."][ ] in the fervor of loyalty which still prevailed, such doctrines were by no means unpopular; and while chief justice hyde was cried up as an eminent judge by the triumphant cavaliers, the dejected roundheads hardly ventured to whisper a complaint against him. to the great grief of the one party, and, no doubt, to the secret joy of the other, who interpreted his fate as a judgment, his career was suddenly cut short. on the st of may, , as he was placing himself on the bench to try a dissenter who had published a book recommending the "comprehension," that had been promised by the king's declaration from breda, while apparently in the enjoyment of perfect health, he dropped down dead. chapter xi. john kelynge. after the sudden death of sir robert hyde, lord chancellor clarendon was again thrown into distress by the difficulty of filling up the office of chief justice of the king's bench, and he allowed it to remain vacant seven months. only five years had elapsed since the restoration, and no loyal lawyer of eminence had sprung up. at last the chancellor thought he could not do better than promote sir john kelynge, then a _puisne_, to be the head of the court. the appointment was considered a very bad one; and some accounted for it by supposing that a liberal contribution had been made towards the expense of erecting "dunkirk house,"[ ] which was exciting the admiration and envy of the town; while others asserted that the collar of s. s.[ ] had been put around the neck of the new legal dignitary by the duchess of cleveland. i believe that judicial patronage had not yet been drawn into the vortex of venality, and that clarendon, left to the freedom of his own will, preferred him whom he considered the least ineligible candidate. but we cannot wonder at the suspicions which were generally entertained, for sir john kelynge's friends could only say in his favor that he was a "violent cavalier," and his enemies observed that "however fit he might have been to _charge_ the roundheads under prince rupert, he was very unfit to _charge_ a jury in westminster hall." i can find nothing of his origin, or of his career, prior to the restoration; and i am unable to say whether, like some loyal lawyers, he actually had carried arms for the king, or, like others, had continued obscurely to practise his profession in london. the first notice i find of him is by himself, in the account which he has left us of the conferences of the judges at serjeants' inn, preparatory to the trial of the regicides, when he says he attended that service as junior counsel for the crown. he might have been employed from a notion that he would be useful in solving the knotty points likely to arise,[ ] or, (what is quite as likely,) without any professional reputation, he might have got a brief by favor, in a case which was to draw the eyes of the whole world upon all engaged in it. when the trials came on, he was very busy and bustling, and eagerly improved every opportunity of bringing himself forward. before they were over, he took upon himself the degree of serjeant at law, and, to his unspeakable delight, he was actually intrusted with the task of conducting the prosecution against colonel hacker, who had commanded the guard during the king's trial and at his execution. he learnedly expounded to the jury that the treason consisted in "compassing and imagining the king's death," and that the overt acts charged of _condemning him_ and _executing him_ were only to be considered evidence of the evil intention. he then stated the facts which would be proved by the witnesses, and concluded by observing,-- "thus did he keep the king a prisoner, to bring him before that mock court of injustice; and was so highly trusted by all those miscreants who thirsted for the king's blood, that the bloody warrant was directed to him to see execution done. nay, gentlemen, he was on the scaffold, and had the axe in his hand." _hacker._--"my lords, to save your lordships trouble, i confess that i was upon the guard, and had a warrant to keep the king for his execution." (the original warrant being shown to him, he admitted it.) _kelynge._--"after you had that warrant brought to you, did you, by virtue of it, direct another warrant for the execution of the king, and take his sacred majesty's person from the custody of colonel tomlinson?" _hacker._--"no, sir." _kelynge._--"we shall prove it." colonel tomlinson was then examined, and detailed the circumstances of the execution, showing that colonel hacker had conducted the king to the scaffold under the original warrant--what had been taken for a fresh warrant being a letter written by him to cromwell, then engaged in prayer for the king's deliverance with general fairfax. _kelynge._--"we have other witnesses, but the prisoner hath confessed enough. we have proved that he had the king in custody, and that at the time of the execution he was there to manage it. what do you say for yourself?" _hacker._--"truly, my lord, i have no more to say for myself but that i was a soldier and under command. in obedience to those set over me i did act. my desire hath ever been for the welfare of my country." _l. c. baron._--"this is all you have to say for yourself?" _hacker._--"yes, my lord." _l. c. baron._--"then, colonel hacker, for that which you say for yourself that you did it by command, you must understand that no power on earth could authorize such a thing. either he is guilty of compassing the death of the king, or no man can be said to be guilty." of course he was convicted and executed. serjeant kelynge was soon after promoted to be a king's serjeant; and in that capacity took a prominent part in the trial of sir henry vane, who, not being concerned in the late king's death, was tried for what he had subsequently done in obedience to the parliament, then possessed of the supreme power of the state. to the plea that his acts could not be said to be against the peace of charles ii., who was then in exile, kelynge admitted that if another sovereign, although a usurper, had mounted the throne, the defence would have been sufficient; but urged that the throne must always be full, and that charles ii., in legal contemplation, occupied it while _de facto_ he was wandering in foreign lands, and ambassadors from all the states of europe were accredited to oliver, the lord protector. kelynge having suggested this reasoning, which was adopted by the court, and on which vane was executed as a traitor, he was, on the next vacancy, made a puisne judge of the king's bench. while kelynge was a puisne judge, he made up, by loyal zeal and subserviency, for his want of learning and sound sense; but, from a knowledge of his incompetency, there was a great reluctance to promote him on the death of lord chief justice hyde. sir matthew hale was pointed out as the fittest person to be placed at the head of the common law; but lord clarendon had not the liberality to raise to the highest dignity one who had sworn allegiance to the protector, and there being no better man whom he could select, who was free from the suspicion of republican taint, he fixed upon the "violent cavalier." luckily there were no speeches at his installation. on account of the dreadful plague which was then depopulating london, the courts were adjourned to oxford. "there kelynge, puisne judge, was made chief justice, and being sworn at the chancellor's lodging, came up privily and took his place in the logic school, where the court of king's bench sat. the business was only motions--to prevent any concourse of people. in london died the week before, of the plague, besides papists and quakers." the new chief justice even exceeded public expectation by the violent, fantastical, and ludicrous manner in which he comported himself. his vicious and foolish propensities broke out without any restraint, and, at a time when there was little disposition to question any who were clothed with authority, he drew down upon himself the contempt of the public and the censure of parliament. he was unspeakably proud of the collar which he wore as chief justice, this alone distinguishing him externally from the puisnies, a class on whom he now looked down very haughtily. in his own report of the resolutions of the judges prior to the trial of lord morley for murder, before the house of lords, he considers the following as most important,-- "we did all, _una voce_, resolve that we were to attend at the trial in our scarlet robes, and the chief judges in their collars of s. s.--_which i did accordingly_." there having been a tumult in an attempt by some apprentices to put down certain disorderly houses in moorfields, which were a great nuisance to the neighborhood, and cries that no such houses should be tolerated, chief justice kelynge, considering this "an _accroachment_ of royal authority," directed those concerned in it to be indicted for high treason; and the trial coming on before him at the old bailey, he thus laid down the law to the jury,-- "the prisoners are indicted for levying war against the king. by levying war is not only meant when a body is gathered together as in army, but if a company of people will go about any public reformation, this is high treason. these people do pretend their design was against brothels; now, for men to go about to pull down brothels, with a captain, and an ensign, and weapons,--if this thing be endured, _who is safe_? it is high treason because it doth betray the peace of the nation, and every subject is as much wronged as the king; for if every man may reform what he will, no man is safe; therefore the thing is of desperate consequence, and we must make this for a public example. there is reason we should be very cautious; we are but newly delivered from rebellion, and we know that that rebellion first began under the pretence of religion and the law; for the devil hath always this vizard upon it. we have great reason to be very wary that we fall not again into the same error. apprentices in future shall not go on in this manner. it is proved that beasely went as their captain with his sword, and flourished it over his head, and that messenger walked about moorfields with a green apron on the top of a pole. what was done by one was done by all; in high treason, all concerned are principals." so the prisoners were all convicted of high treason; and i am ashamed to say that all the judges concurred in the propriety of the conviction except lord chief baron hale, who, as might be expected, delivered his opinion that there was no treason in the case, and treated it merely as a misdemeanor. such a proceeding had not the palliation that it ruined a personal enemy, or crushed a rival party in the state, or brought great forfeitures into the exchequer; it was a mere fantastic trick played before high heaven to make the angels weep.[ ] when chief justice kelynge was upon the circuit, being without any check or restraint, he threw aside all regard to moderation and to decency. he compelled the grand jury of somersetshire to find a true bill contrary to their consciences--reproaching sir hugh wyndham, the foreman, as the head of a faction, and telling them "that they were all his servants, and that he would make the best in england stoop." some persons were indicted before him for attending a conventicle; and, although it was proved that they had assembled on the lord's day with bibles in their hands, _without prayer books_, they were acquitted. he thereupon fined the jury one hundred marks apiece, and imprisoned them till the fines were paid. again, on the trial of a man for murder, who was suspected of being a dissenter, and whom he had a great desire to hang, he fined and imprisoned all the jury because, contrary to his direction, they brought in a verdict of _manslaughter_.[ ] upon another occasion, (repeating a coarse jest of one whom he professed to hold in great abhorrence,) when he was committing a man in a very arbitrary manner, the famous declaration in magna charta being cited to him, that "no freeman shall be imprisoned except by the judgment of his peers, or the law of the land," the only answer given by my lord chief justice of england was to repeat, with a loud voice, cromwell's rhyme, "magna charta--magna f----a!!!" at last, the scandal was so great that complaints against him were brought by petition before the house of commons, and were referred to the grand committee of justice. after witnesses had been examined, and he himself had been heard in his defence, the committee reported the following resolutions:-- " . that the proceedings of the lord chief justice in the cases referred to us are innovations in the trial of men for their lives and liberties, and that he hath used an arbitrary and illegal power which is of dangerous consequence to the lives and liberties of the people of england. " . that in the place of judicature, the lord chief justice hath undervalued, vilified, and condemned magna charta, the great preserver of our lives, freedom, and property. " . that the lord chief justice be brought to trial, in order to condign punishment in such manner as the house shall judge most fit and requisite." the matter assuming this serious aspect, he petitioned to be heard at the bar of the house in his own defence. lord chief baron atkyns, who was then present, says, "he did it with that great humility and reverence, that those of his own profession and others were so far his advocates that the house desisted from any farther prosecution." his demeanor seems now to have been as abject as it had before been insolent, and he escaped punishment only by the generous intercession of lawyers whom he had been in the habit of browbeating in the king's bench. he was abundantly tame for the rest of his days; but he fell into utter contempt, and the business of the court was done by twisden, a very learned judge, and much respected, although very passionate. kelynge's collar of s. s. ceased to have any charms for him; he drooped and languished for some terms, and on the th of may, , he expired, to the great relief of all who had any regard for the due administration of justice. no interest can be felt respecting the place of his interment, his marriages, or his descendants. i ought to mention, among his other vanities, that he had the ambition to be an author; and he compiled a folio volume of decisions in criminal cases, which are of no value whatever except to make us laugh at some of the silly egotisms with which they abound.[ ] chapter xii. william scroggs. it was positively asserted in his lifetime, and it has been often repeated since, that scroggs was the son of a butcher, and that he was so cruel as a judge because he had been himself accustomed to kill calves and lambs when he was a boy. yet it is quite certain that this solution of scroggs's taste for blood is a pure fiction, for he was born and bred a gentleman. his father was a squire, of respectable family and good estate, in oxfordshire. young scroggs was several years at a grammar school, and he took a degree with some credit in the university of oxford, having studied first at oriel, and then at pembroke college. he was intended for the church, and, in quiet times, might have died respected as a painstaking curate, or as archbishop of canterbury. but, the civil war breaking out while he was still under age, he enlisted in the king's cause, and afterwards commanded a troop of horse, which did good service in several severe skirmishes. unfortunately, his morals did not escape the taint which distinguished both men and officers on the cavalier side. the dissolute habits he had contracted unfitted him entirely for the ecclesiastical profession, and he was advised to try his luck in the law. he had a quick conception, a bold manner, and an enterprising mind; and prophecies were uttered of his great success if he should exchange the cuirass for the long robe. he was entered as a student at gray's inn, and he showed that he was capable, by short fits, of keen application; but his love of profligacy and of expense still continued, and both his health and his finances suffered accordingly. however, he contrived to be called to the bar; and some of his pot companions being attorneys, they occasionally employed him in causes likely to be won by a loud voice and an unscrupulous appeal to the prejudices of the jury. he practised in the king's bench, where, although he now and then made a splashy speech, his business by no means increased in the same ratio as his debts. "he was," says roger north, "a great voluptuary, his debaucheries egregious, and his life loose; which made the lord chief justice hale detest him." thinking that he might have a better chance in the court of common pleas, where the men in business were very old and dull, he took the degree of the coif, and he was soon after made a king's serjeant. still, however, he kept company with ken, guy, and the high-court rakes, and his clients could not depend upon him. his visage being comely, and his speech witty and bold, he was a favorite with juries, and sometimes carried off wonderful verdicts; but, when he ought to have been consulting his chamber in serjeants' inn, he was in a tavern or gaming house, or worse place, near st. james's palace. thus his gains were unsteady, and the fees which he received were speedily spent in dissipation, so that he fell into a state of great pecuniary embarrassment. on one occasion, he was arrested by a creditor in westminster hall as he was about to enter his coach. the process being out of the king's bench, he complained to that court of a breach of his privileges as a serjeant; but lord chief justice hale refused to discharge him. meanwhile, serjeant scroggs was in high favor with lord shaftesbury's enemies, who, on the commitment of that turbulent leader to the tower for breach of privilege, had gained a temporary advantage over him. through the agency of chiffinch, superintendent of the secret intrigues of every description which were carried on at whitehall,[ ] he had been introduced to charles ii., and the merry monarch took pleasure in his licentious conversation. what was of more importance to his advancement, he was recommended to the earl of danby, the reigning prime minister, as a man that might be useful to the government if he were made a judge. in consequence, on the d of october, , he was knighted, and sworn in a justice of the court of common pleas. sir allan broderick, in a letter to "the honorable lawrence hyde," written a few days after, says, "sir william scroggs, on monday, being admitted judge, made so excellent a speech that my lord northampton, then present, went from westminster to whitehall immediately, and told the king he had, since his happy restoration, caused many hundred sermons to be printed, and which together taught not the people half so much loyalty; therefore, as a sermon, desired his command to have it printed and published in all the market towns in england." mr. justice scroggs gave himself little trouble with law business that came before the court; but, in addressing grand juries on the circuit, he was loud and eloquent against the proceedings of the "country party," and he still continued to be frequently in the circle at whitehall, where he took opportunities not only to celebrate his own zeal, but to sneer at sir john raynsford, the chief justice of the king's bench, whose place he was desirous to fill. chiffinch, and his other patrons of the back-stairs, were in the habit of sounding his praise, and asserting that he was the only man who, as head of the king's bench, could effectually cope with the manoeuvres of shaftesbury. this unconquerable intriguer, having been discharged from custody, was again plotting against the government, was preparing to set up the legitimacy of monmouth, and was asserting that the duke of york should be set aside from the succession of the throne and prosecuted as a popish recusant. the immediate cause of raynsford's removal was the desire of the government to have a chief justice of the king's bench on whose vigor and subserviency reliance could be placed, to counteract the apprehended machinations of shaftesbury. on the st of may, , sir william scroggs was sworn into the office, and he remained in it for a period of three years. how he conducted himself in civil suits is never once mentioned, for the attention of mankind was entirely absorbed by his scandalous misbehavior as a criminal judge. he is looked to with more loathing, if not with more indignation, than jeffreys, for in his abominable cruelties he was the sordid tool of others, and in his subsequent career he had not the feeble excuse of gratifying his own passions or advancing his own interests. although quite indifferent with regard to religion, and ready to have declared himself a papist, or a puritan, or a mahometan, according to the prompting of his superiors, finding that the policy of the government was to outbid shaftesbury in zeal for protestantism, he professed an implicit belief in all the wonders revealed by titus oates, in the murder of sir edmondbury godfrey by papists, and in the absolute necessity for cutting off without pity all those who were engaged in the nefarious design to assassinate the king, to burn london, and to extinguish the flames with the blood of protestants. he thought himself to be in the singularly felicitous situation of pleasing the government while he received shouts of applause from the mob. burnet, speaking of his appointment, says, "it was a melancholy thing to see so bad, so ignorant, and so poor a man raised up to that great post. yet he, now seeing how the stream ran, went into it with so much zeal and heartiness that he was become the favorite of the people."[ ] the first of the popish plot judicial murders--which are more disgraceful to england than the massacre of st. bartholomew's is to france--was that of stayly, the roman catholic banker. being tried at the bar of the court of king's bench, scroggs, according to the old fashion, which had gone out during the commonwealth, repeatedly put questions to the prisoner, attempting to intimidate him, or to involve him in contradictions, or to elicit from him some indiscreet admission of facts. a witness having stated that "he had often heard the prisoner say he would lose his blood for the king, and speak as loyally as man could speak," scroggs exclaimed, "_that is, when he spoke to a protestant!_" in summing up, having run himself out of breath by the violence with which he declaimed against the pope and the jesuits, he thus apologised to the jury:-- "excuse me, gentlemen, if i am a little warm, when perils are so many, murders so secret. when things are transacted so closely, and our king is in great danger, and religion is at stake, i may be excused for being a little warm. you may think it better, gentlemen, to be warm here than in smithfield. discharge your consciences as you ought to do. if guilty, let the prisoner take the reward of his crime, for perchance it may be a terror to the rest. i hope i shall never go to that heaven where men are made saints for killing kings." the verdict of _guilty_ being recorded, _scroggs, c. j._, said, "now, you may die a roman catholic; and, when you come to die, i doubt you will be found a priest too. the matter, manner, and all the circumstances of the case, make it plain; you may harden your heart as much as you will, and lift up your eyes, but you seem, instead of being sorrowful, to be obstinate. between god and your conscience be it; i have nothing to do with that; my duty is only to pronounce judgment upon you according to law--you shall be drawn to the place of execution, where you shall be hanged by the neck, cut down alive," &c. &c. the unhappy convict's friends were allowed to give him decent burial;[ ] but, because they said a mass for his soul, his body was, by order of lord chief justice scroggs, taken out of the grave, his quarters were fixed upon the gates of the city, and his head, at the top of a pole, was set on london bridge. so proud was scroggs of this exploit, that he had an account of it written, for which he granted an imprimatur, signed with his own name. i must not run the risk of disgusting my readers by a detailed account of scroggs's enormities on the trials of coleman, ireland, whitebeard, langhord, and the other victims whom he sacrificed to the popular fury under pretence that they were implicated in the popish plot. whether sitting in his own court at westminster, or at the old bailey in the city of london, as long as he believed that government favored the prosecutions, by a display of all the unworthy arts of cajoling and intimidation he secured convictions. a modern historian, himself a roman catholic priest, says, with temper and discrimination, "the chief justice scroggs, a lawyer of profligate habits and inferior acquirements, acted the part of prosecutor rather than of judge. to the informers he behaved with kindness, even with deference, suggesting to them explanations, excusing their contradictions, and repelling the imputation on their characters; but the prisoners were repeatedly interrupted and insulted; their witnesses were browbeaten from the bench, and their condemnation was generally hailed with acclamations, which the court rather encouraged than repressed." meanwhile the chief justice went the circuit; and although the popish plot did not extend into the provinces, it may be curious to see how he demeaned himself there. andrew bromwich being tried before him capitally, for having administered the sacrament of the lord's supper according to the rites of the church of rome, thus the dialogue between them proceeded:-- _prisoner._--"i desire your lordship will take notice of one thing, that i have taken the oaths of allegiance and supremacy, and have not refused any thing which might testify my loyalty." _scroggs, c. j._--"that will not serve your turn; you priests have many tricks. what is that to giving a woman the sacrament several times?" _prisoner._--"my lord, it was no sacrament unless i be a priest, of which there is no proof." _scroggs._--"what! you expect we should prove you a priest by witnesses who saw you ordained? we know too much of your religion; no one gives the sacrament in a wafer, except he be a popish priest: you gave that woman the sacrament in a wafer: _ergo_, you are a popish priest." thus he summed up: "gentlemen of the jury, i leave it upon your consciences whether you will let priests escape, who are the very pests of church and state; you had better be rid of one priest than three felons; so, gentlemen, i leave it to you." after a verdict of guilty, the chief justice said, "gentlemen, you have found a good verdict, and if i had been one of you i should have found the same myself." he then pronounced sentence of death, describing what seemed to be his own notion of the divine being, while he imputed this blasphemy to the prisoner: "you act as if god almighty were some omnipotent mischief, that delighted and would be served with the sacrifice of human blood." scroggs was more and more eager, and "ranted on that side more impetuously," when he observed that lord shaftesbury, who, although himself too shrewd to believe in the popish plot, had been working it furiously for his own purposes, was taken into office on the formation of sir william temple's new scheme of administration, and was actually made president of the council. but he began to entertain a suspicion that the king had been acting a part against his inclination and his judgment, and, having ascertained the real truth upon this point, he showed himself equally versatile and violent by suddenly going over to the opposite faction. roger north gives the following racy account of his conversion:-- "it fell out that when the earl of shaftesbury had sat some short time in the council, and seemed to rule the roast, yet scroggs had some qualms in his political conscience; and coming from windsor in the lord chief justice north's coach, he took the opportunity and desired his lordship to tell him seriously if my lord shaftesbury had really so great power with the king as he was thought to have. his lordship answered quick, 'no, my lord, no more than your footman hath with you.' upon that the other hung his head, and, considering the matter, said nothing for a good while, and then passed to other discourse. after that time he turned as fierce against oates and his plot as ever before he had ranted for it." the first popish plot case which came on after this conversion was the trial of sir george wakeman, the queen's physician, against whom oates and bedloe swore as stoutly as ever; making out a case which implicated, to a certain degree, the queen herself. but chief justice scroggs now sneered at the marvellous memory or imagination of oates; and, taking very little notice, in his summing up, of the evidence of bedloe, thus concluded:-- "if you are unsatisfied upon these things put together, and, well weighing, you think the witnesses have not said true, you will do well to acquit." _bedloe._--"my lord, my evidence is not right summed up." _scroggs, c. j._--"i know not by what authority this man speaks. gentlemen, consider of your verdict." an acquittal taking place, not only were oates and bedloe in a furious rage, but the mob were greatly disappointed, for their belief in the plot was still unshaken, and scroggs, who had been their idol a few hours ago,[ ] was in danger of being torn in pieces by them. although he contrived to escape in safety to his house, he was assailed next morning by broadsides, ballads sung in the streets, and libels in every imaginable shape. on the first day of the following term, he bound over in open court the authors, printers, and signers of some of the worst of them, and made the following speech:-- "i would have all men know that i am not so revengeful in my nature, nor so nettled with this aspersion, that i could not have passed by this and more; but the many scandalous libels that are abroad, and reflect on public justice as well as upon my private self, make it the duty of my place to defend the one, and the duty i owe to my reputation to vindicate the other. this is the properest occasion for both. if once our courts of justice come to be awed or swayed by vulgar noise,[ ] it is falsely said that men are tried for their lives or fortunes; they live by chance, and enjoy what they have as the wind blows, and with the same certainty. such a base, fearful compliance made felix, willing to please the people, leave paul bound. the people ought to be pleased with public justice, and not justice seek to please the people. justice should flow like a mighty stream; and if the rabble, like an unruly wind, blow against it, the stream they made rough will keep its course. i do not think that we yet live in so corrupt an age that a man may not with safety be just, and follow his conscience; if it be otherwise, we must hazard our safety to preserve our integrity. as to sir george wakeman's trial, i am neither afraid nor ashamed to mention it. i will appeal to all sober and understanding men, and to the long robe more especially, who are the best and properest judges in such cases, for the fairness and equality of my carriage on that occasion. for those hireling scribblers who traduce me,--who write to eat and lie for bread,--i intend to meet with them another way, for, like vermin, they are only safe while they are secret. and let those vipers, those printers and booksellers by whom they vend their false and braided ware, look to it; they shall know that the law wants not power to punish a libellous and licentious press, nor i resolution to put the law in force. and this is all the answer fit to be given (besides a whip) to those hackney writers and dull observators that go as they are hired or spurred, and perform as they are fed. if there be any sober and good men that are misled by false reports, or by subtlety deceived into any misapprehensions concerning that trial or myself; i should account it the highest pride and the most scornful thing in the world if i did not endeavor to undeceive them. to such men, therefore, i do solemnly declare in the seat of justice, where i would no more lie or equivocate than i would to god at the holy altar, i followed my conscience according to the best of my understanding in all that trial, without fear, favor, or reward, _without the gift of one shilling, or the value of it directly or indirectly, and without any promise or expectation whatsoever_.[ ] do any think it an even wager, whether i am the greatest villain in the world or not--one that would sell the life of the king, my religion, and country, to papists for money? he that says great places have great temptations, has a little if not a false heart himself. let us pursue the discovery of the plot in god's name, and not balk any thing where there is suspicion on reasonable grounds; but do not pretend to find what is not, nor count him a turncoat that will not betray his conscience, nor believe incredible things. those are foolish men who think that an acquittal must be wrong, and that there can be no justice without an execution." many were bound over; but not more than one prosecution was brought to trial--that against richard radley, who was convicted of speaking scandalous words of the lord chief justice scroggs, and fined £ . when the earl of castlemaine--the complaisant husband of the king's mistress--was brought to trial for being concerned in the plot, scroggs was eager to get him off, still despising popular clamor. bedloe being utterly ruined in reputation, dangerfield was now marched up, as the second witness, to support oates. he had been sixteen times convicted of infamous offences; and, to render him competent, a pardon under the great seal was produced. but the chief justice was very severe upon him, saying, in summing up to the jury, "whether this man be of a sudden become a saint because he has become a witness, i leave that to you to consider. now i must tell you, though they have produced two witnesses, if you believe but one, this is insufficient. in treason, there being two witnesses, the one believed, the other disbelieved, may there be a conviction? i say, no. let us deal fairly and aboveboard, and so preserve men who are accused and not guilty." the defendant being acquitted, the chief justice was again condemned as a renegade. he further made himself obnoxious to the charge of having gone over to the papists, by his conduct on the trial of mrs. elizabeth cellier, who, if she had been prosecuted while he believed that the government wished the plot to be considered real, would unquestionably have been burned alive for high treason, but now was the object of his especial protection and favor. the second witness against her was dangerfield, who, when he was put into the box, before any evidence had been given to discredit him, was thus saluted by chief justice scroggs:-- "we will not hoodwink ourselves against such a fellow as this, that is guilty of such notorious crimes. a man of modesty, after he hath been in the pillory, would not look a man in the face. such fellows as you are, sirrah, shall know we are not afraid of you. it is notorious enough what a fellow this is. i will shake all such fellows before i have done with them." _dangerfield._--"my lord, this is enough to discourage a man from ever entering into an honest principle." _scroggs, c. j._--"what! do you, with all the mischief that hell hath in you, think to have it in a court of justice? i wonder at your impudence, that you dare look a court of justice in the face, after having been made appear so notorious a villain. come, gentlemen of the jury, this is a plain case; here is but one witness in a case of treason; therefore lay your heads together, and say _not guilty_." mrs. cellier was set at liberty, and dangerfield was committed to occupy her cell in newgate. when holding assizes in the country, he took every opportunity of proclaiming his slavish doctrines. going the oxford circuit with lord chief baron atkyns, he told the grand jury that a petition from the lord mayor and citizens of london to the king, for calling a parliament, was high treason. atkyns, on the contrary, affirmed "that the people might petition the king, and, so that it was done without tumult, it was lawful." scroggs, having peremptorily denied this, went on to say "that the king might prevent printing and publishing whatever he chose by proclamation." atkyns mildly remarked, "that such matters were fitter for parliament, and that, if the king could do this work of parliament, we were never like to have parliaments any more." scroggs, highly indignant, sent off a despatch to the king, stating the unconstitutional and treasonable language of chief baron atkyns. this virtuous judge was in consequence superseded, and remained in a private station till he was reinstated in his office after the revolution. before scroggs was himself prosecuted and dismissed from his office with disgrace, he swelled the number of his delinquencies by an attack on the liberty of the press, which was more violent than any that had ever been attempted by the star chamber, and which, if it had been acquiesced in, would have effectually established despotism in this country. here he was directly prompted by the government, and it is surprising that this proceeding should so little have attracted the notice of historians who have dwelt upon the arbitrary measures of the reign of charles ii. the object was to put down all free discussions, and all complaints against misrule, by having, in addition to a licenser, a process of _injunction_ against printing--to be summarily enforced, without the intervention of a jury, by fine, imprisonment, pillory, and whipping. there was then in extensive circulation a newspaper called "the weekly pacquet of advice from rome, or the history of papacy," which reflected severely upon the religion now openly professed by the duke of york and secretly embraced by the king himself. in trinity term, , an application being made to the court of king's bench, on the ground that this newspaper was libellous, scroggs, with the assent of his brother judges, granted a rule absolute in the first instance, forbidding the publication of it in future. the editor and printer being served with the rule, the journal was suppressed till the matter was taken up in the house of commons, and scroggs was impeached. the same term he gave the crowning proof of his servility and contempt of law and of decency. shaftesbury, to pave the way for the exclusion bill, resolved to prosecute the duke of york as a "popish recusant." the heir presumptive to the throne was clearly liable to this proceeding and to all the penalties, forfeitures, and disqualifications which it threatened, for he had been educated a protestant, and, having lately returned from torturing the covenanters in scotland, he was in the habit of ostentatiously celebrating the rites of the romish religion in his chapel in london. an indictment against him was prepared in due form, and this was laid before the grand jury for the county of middlesex by lord shaftesbury, along with lord russell, lord cavendish, lord grey de werke, and other members of the country party. this alarming news being brought to scroggs while sitting on the bench, he instantly ordered the grand jury to attend in court. the bailiff found them examining the first witness in support of the indictment; but they obeyed orders. as soon as they had entered the court, the chief justice said to them, "gentlemen of the grand jury, you are discharged, and the country is much obliged to you for your services." there were two classes whom he had offended, of very different character and power--the witnesses in support of the popish plot, and the exclusionist leaders. the first began by preferring articles against him to the king in council, which alleged, among other things, that at the trial of sir george wakeman "he did browbeat and curb dr. titus oates and captain bedloe, two of the principal witnesses for the king, and encourage the jury impanelled to try the malefactors to disbelieve the said witnesses, by speaking of them slightingly and abusively, and by omitting material parts of their evidence; that the said chief justice, to manifest his slighting opinion of the evidence of the said dr. titus oates and captain bedloe in the presence of his most sacred majesty and the lords of his majesty's most honorable privy council, did dare to say that dr. titus oates and captain bedloe always had an accusation ready against any body; that the said lord chief justice is very much addicted to swearing and cursing in his common discourse, and to drink to excess, to the great disparagement of the dignity and gravity of his office." it seems surprising that such charges, from such a quarter, against so high a magistrate, should have been entertained, although he held his office during the pleasure of the crown. the probability is that, being in favor with the government, it was considered to be the most dexterous course to give him the opportunity of being tried before a tribunal by which he was sure of being acquitted, in the hope that his acquittal would save him from the fangs of an enraged house of commons. he was required to put in an answer to the articles, and a day was appointed for hearing the case. when it came on, to give great _éclat_ to the certain triumph of the accused, the king presided in person. oates and bedloe were heard, but they and their witnesses were constantly interrupted and stopped, on the ground that they were stating what was not evidence, or what was irrelevant; and, after a very eloquent and witty speech from the chief justice, in the course of which he caused much merriment by comments on his supposed immoralities, judgment was given that the complaints against him were false and frivolous. but shaftesbury was not so easily to be diverted from his revenge. on the meeting of parliament he caused a motion to be made in the house of commons for an inquiry into the conduct of lord chief justice scroggs in discharging the middlesex grand jury and in other matters. a committee was accordingly appointed, which presented a report recommending that he should be impeached. the report was adopted by a large majority, and articles of impeachment were voted against him. these were _eight_ in number. the _first_ charged in general terms "that the said william scroggs, chief justice of the king's bench, had traitorously and wickedly endeavored to subvert the fundamental laws and the established religion and government of the kingdom of england." the _second_ was for illegally discharging the grand jury, "whereby the course of justice was stopped maliciously and designedly--the presentments of many papists and other offenders were obstructed--and in particular a bill of indictment against james, duke of york, which was then before them, was prevented from being proceeded upon." the _third_ was founded on the illegal order for suppressing the weekly pacquet newspaper. the three following articles were for granting general warrants, for imposing arbitrary fines, and for illegally refusing bail. the _seventh_ charged him with defaming and scandalizing the witnesses who proved the popish plot. the _last_ was in these words: "viii. whereas the said sir william scroggs, being advanced to be chief justice of the court of king's bench, ought, by a sober, grave, and virtuous conversation, to have given a good example to the king's liege people, and to demean himself answerably to the dignity of so eminent a station; yet, on the contrary thereof, he doth, by his frequent and notorious excesses and debaucheries, and his profane and atheistical discourses, daily affront almighty god, dishonor his majesty, give countenance and encouragement to all manner of vice and wickedness, and bring the highest scandal on the public justice of the kingdom." these articles were carried to the house of peers by lord cavendish, who there, in the name of all the commons of england, impeached chief justice scroggs for "high treason, and other high crimes and misdemeanors." the articles being read, the accused, who was present, sitting on the judge's woolsack, was ordered to withdraw. a motion was then made, that he be _committed_; but the previous question was moved and carried, and a motion for an address to suspend him from his office till his trial should be over, was got rid of in the same manner. he was then called in, and ordered to find his bail in £ , , to answer the articles of impeachment, and to prepare for his trial. luckily for him, at the end of three days the parliament was abruptly dissolved. it would have been difficult to make out that any of the charges amounted to _high treason_; but in those days men were not at all nice about such distinctions, and a dangerous but convenient doctrine prevailed, that, upon an impeachment, the two houses of parliament might retrospectively declare any thing to be treason, according to their discretion, and punish it capitally. at any rate, considering that the influence of shaftesbury in the upper house was so great, and that halifax and the respectable anti-exclusionists could not have defended or palliated the infamous conduct of scroggs, had his case come to a hearing, he could not have got off without some very severe and degrading punishment. although he escaped a judicial sentence, his character was so blown upon, and juries regarded him with such horror, and were so much inclined to go against his direction, that the government found that he would obstruct instead of facilitating their designs against the whig leaders, and that it was necessary to get rid of him. after the dissolution of the oxford parliament the court was completely triumphant, and, being possessed for a time of absolute power, had only to consider the most expedient means of perpetuating despotism, and wreaking vengeance on the friends of freedom. before long, russell, sydney, and shaftesbury were to be brought to trial, that their heads might pay the penalty of the exclusion bill; but if scroggs should be their judge, any jury, whether inclined to protestantism or to popery, would probably acquit them. accordingly, in the beginning of april, to make room for one who, it was hoped, would have more influence with juries, and make the proceedings meditated against the city of london and other corporations pass off with less discredit, while he might be equally subservient, sir william scroggs was removed from his office of chief justice of the king's bench. so low had he fallen, that little regard was paid to his feelings, even by those for whom he had sacrificed his character and his peace of mind; and, instead of a "resignation on account of declining health," it was abruptly announced to him that a _supersedeas_ had issued, and that sir francis pemberton, who had been a puisne judge under him, was to succeed him as chief justice. his disgrace caused general joy in westminster hall, and over all england; for, as jeffreys had not yet been clothed in ermine, the name of scroggs was the by-word to express all that could be considered loathsome and odious in a judge. he was allowed a small pension, or retired allowance, which he did not long enjoy. when cashiered, finding no sympathy from his own profession, or from any class of the community, he retired to a country house which he had purchased, called wealde hall, near brentwood, in essex. even here, his evil fame caused him to be shunned. he was considered by the gentry to be without religion and without honor; while the peasantry, who had heard some vague rumors of his having put people to death, believed that he was a murderer, whispered stories of his having dealings with evil spirits, and took special care never to run the risk of meeting him after dark. his constitution was undermined by his dissolute habits; and, in old age, he was still a solitary selfish bachelor. after languishing, in great misery, till the th day of october, , he then expired, without a relation or friend to close his eyes. he was buried in the parish church of south wealde; the undertaker, the sexton, and the parson of the parish, alone attending the funeral. he left no descendants; and he must either have been the last of his race, or his collateral relations, ashamed of their connection with him, had changed their name; for, since his death, there has been no scroggs in great britain or ireland. the word was long used by nurses to frighten children; and as long as our history is studied, or our language is spoken or read, it will call up the image of a base and bloody-minded villain. with honorable principles, and steady application, he might have been respected in his lifetime, and left an historical reputation behind him. "he was a person of very excellent and nimble parts," and he could both speak and write our language better than any lawyer of the seventeenth century, francis bacon alone excepted. he seems to have been little aware of the light in which his judicial conduct would be viewed; for it is a curious fact that the published reports of the state trials at which he presided were all revised and retouched by himself; and his speeches, which fill us with amazement and horror, he expected would be regarded as proofs of his spirit and his genius. he had excellent natural abilities, and might have made a great figure in his profession; but was profligate in his habits, brutal in his manners, with only one rule to guide him--a regard to what he considered his own interest--without a touch of humanity, wholly impenetrable to remorse. chapter xiii. francis north. we now come to one of the most contemptible of men--francis north, known by the title of lord keeper guilford. he had not courage to commit great crimes; but--selfish, cunning, sneaking, and unprincipled--his only restraint was a regard to his own personal safety, and throughout his whole life he sought and obtained advancement by the meanest arts. our hero, although he himself ascribed his success to his poverty, was of noble birth. the founder of his family was edward north, a serjeant at law, chancellor of the augmentations, and created a baron by writ in the reign of henry viii. dudley, the third baron, "having consumed the greatest part of his estate in the gallantries of king james's court, or, rather, his son prince henry's," retired and spent the rest of his days at his seat in cambridgeshire. when the civil war broke out, he sided with the parliament, and on rare occasions coming to london, he is said to have sat on the trial of laud, and to have voted for his death. having reached extreme old age, he died in the year . dudley, his heir, who, at the age of sixty-three, stood on the steps of the throne in the house of lords as "the eldest son of a peer," was a great traveller in his youth, and served with distinction in the low countries under sir francis vere. yet he never would put on his hat, nor sit down in the presence of his father, unless by the old peer's express commands. being returned to the long parliament for the county of cambridge, he strenuously opposed the court, and signed the solemn league and covenant; but, adhering to the presbyterian party, he was turned out by _pride's purge_, and lived in retirement till the restoration. he married anne, one of the daughters and coheirs of sir charles montagu, brother of the earl of manchester, by whom he had a very numerous family. the subject of this memoir was their second son, and was born on the d of october, . though he turned out such a zealous royalist and high churchman, his early training began among republicans and fanatics. as soon as he left the nursery, he was sent to a preparatory school at isleworth, the master of which was a rigid presbyterian. his wife was a furious independent, and she ruled the household. "she used to instruct her babes in the gift of praying by the spirit, and all the scholars were made to kneel by a bedside and pray; but this petit spark was too small for that posture, and was set upon a bed to kneel, with his face to a pillow." his family becoming disgusted with the extravagance of the ruling powers, and beginning to look to royalty as the only cure for the evils the nation was suffering, he was removed from isleworth, and put to a grammar school at bury st. edmunds, under a cavalier master. in , he was admitted a fellow commoner at st. john's college, cambridge. he is said to have remained there two or three years, applying diligently to the studies of the place; but he seems to have devoted much of his time to the bass-viol, and he left the university without a degree. he was then transferred to the middle temple. his father bought him a very small set of chambers, in which he shut himself up, and dedicated himself to the study of the law. he early learned and often repeated this saying of the citizens to their apprentices, "keep your shop, and your shop will keep you." he did not frequent riding schools, or dancing schools, or playhouses, or gaming houses--so dangerous to youth at the inns of court. though he could "make one at gammon, gleek, piquet, or even the merry-main, he had ever a notable regard to his purse to keep that from oversetting, like a vessel at sea that hath too much sail and too little ballast." while a student, he paid frequent and long visits to his grandfather, who seems to have become a most singularly tyrannical and capricious old man. frank exerted himself to the utmost to comply with all his humors, being allowed by him £ a year. he was always industrious during these visits, though he could not altogether avoid bowling, fishing, hunting, visiting, and billiards; he spent the greater part of his time in reading and commonplacing the law books brought down to him by the carrier. while in town, he always dined in the hall--twelve at noon being the hour of dinner--and supped there again at six; after which "case-putting" began in the cloister walks; and he acquired the character of a great "put-case." he kept a commonplace book, which seems to have been almost as massive as brooke's "abridgment of the law." he made himself well acquainted with the year books, although not altogether so passionately attached to them as serjeant maynard, who, when he was taking an airing in his coach, always carried a volume of them along with him, which, he said, amused him more than a comedy. he attended all famous legal arguments, particularly those of sir heneage finch, and taking notes in the morning in law french, he employed himself at night in making out in english a report of the cases he had heard. by way of relaxation he would go to music meetings, or to hear hugh peters preach. nothing places him in such an amiable point of view as the delight he is said to have taken, on rare occasions, in "a petit supper and a bottle," when there really seems to have been a short oblivion of anxiety about his rise in the world; but, to show his constitutional caution, his brother roger assures us that, "whenever he was a little overtaken, it was a warning to him to take better care afterwards." long before he was called to the bar, "he undertook the practice of court-keeping;" that is, he was appointed the steward of a great many manors by his grandfather and other friends, and he did all the work in person, writing all his court-rolls, and making out his copies with his own hand. i am afraid he now began his violation of the rights and liberties of his fellow-subjects by practising some petty extortions upon the bumpkins who came before him. "his grandfather," says roger,[ ] with inimitable simplicity, "had a venerable old steward, careful by nature and faithful to his lord, employing all his thoughts and time to manage for supply of his house and upholding his rents,--in short, one of a race of human kind heretofore frequent, but now utterly extinct,--affectionate as well as faithful, and diligent rather for love than self-interest. this old gentleman, with his boot-hose and beard, used to accompany his young master to his court-keeping, and _observing him reasoning the country people out of their pence for essoines, &c._, he commended him, saying, 'if you will be contented, master frank, to be a great while getting a little, you will be a little while getting a great deal;' wherein he was no false prophet." having been the requisite time on the books of the society of the middle temple, and performed all his moots, (upon which he bestowed great labor,) francis was called to the bar. the allowance of sixty pounds a year which he had hitherto received from his father was now reduced to fifty, in respect of the pence he collected by court-keeping and the expected profits of his practice. he highly disapproved of this reduction, and wrote many letters to his father to remonstrate against it. at last he received an answer which he hoped was favorable, but which contained only these words, "frank, i suppose by this time, having vented all your discontent, you are satisfied with what i have done." the reduced allowance, however, was continued to him as long as his father lived, who said "he would not discourage industry by rewarding it when successful with loss." the young barrister was now hard put to it. he took "a practising chamber" on a first floor in elm court, "a dismal hole--dark next the court, and on the other side a high building of the inner temple standing within five or six yards of the windows." he was able to fill his shelves with all useful books of the law from the produce of certain legacies and gifts collected for him by his mother,[ ] and he seems still to have had a small pecuniary help from his grandfather. for some time he had great difficulty in keeping free from debt; but he often declared that "if he had been sure of a hundred pounds a year to live upon, he had never been a lawyer." he is much praised by his brother, because it is said "he did not, (as seems to have been common,) for the sake of pushing himself, begin by bustling about town and obtruding himself upon attorneys, or bargaining for business, but was contented if chance or a friend brought him a motion, as he was standing at the bar taking notes." these, however, came so rarely that he fell into a very dejected and hypochondriacal state. thinking himself dying, he carried a list of his ailments to a celebrated physician, dr. beckenham of bury, who laughed at him and sent him away, prescribing fresh air and amusement. he was in danger of utterly sinking in the slough of despond, when he was suddenly taken by the hand by the great lawyer, sir jeffrey palmer, who was made attorney general on the restoration of charles ii., and who if he had lived must have been lord chancellor. his son edward, a very promising young man, lately called to the bar, died about this time in the arms of francis north, who had been at college with him, and had shown him great attention during his illness. all the business destined for young palmer now somehow found its way to his surviving friend. his powerful protector, the attorney general, rapidly brought him forward by employing him in government prosecutions, and even when he himself was confined by illness, by giving him his briefs in smaller matters to hold for him in court. north, we may be sure, was most devotedly assiduous in making a suitable return for this kindness, and in flattering his patron. instead of the sentiments he had imbibed from his family in his early days, he now loudly expressed those of an ultra prerogative lawyer, exalting the power of the king both over the church and the parliament. being considered a rising man, his private friends and near relations came to consult him. he was once asked if he took fees from them. "yes," said he; "they no doubt come to do me a kindness; and what kindness have i if i refuse their money?" soon after he was called to the bar, he went the norfolk circuit, where his family interest lay; but here again he chiefly relied upon his grand resource of flattering his superiors and accommodating himself to their humors. "he was exceeding careful to keep fair with the cocks of the circuit, and particularly with serjeant earl, who had almost a monopoly. the serjeant was a very covetous man, and when none would starve with him in journeys, this young gentleman kept him company." they once rode together from cambridge to norwich without drawing bit, to escape the expense of baiting at an inn; and north would have been famished, if the serjeant's man, knowing his master's habits, had not privately furnished him with a cake. he asked the serjeant, out of compliment to his riches, how he kept his accounts, "for you have," said he, "lands, securities, and great comings in of all kinds." "accounts, boy!" exclaimed the serjeant, "i get as much as i can, and i spend as little as i can; and there is all the account i keep." in these journeys the serjeant talked so agreeably of law, and tricks, and purchases, and management, that north's hunger was beguiled, and he thought only of the useful knowledge he was acquiring, and the advantage to be derived from the countenance of a man so looked up to. lord chief justice hyde generally rode the norfolk circuit, and so completely had north taken the measure of his foot, that my lord called him "cousin" in open court, "which was a declaration that he would take it for a respect to himself to bring him causes." the biographer to whom we are so much indebted lays it down that there is no harm in a judge letting it be known "that a particular counsel will be easily heard before him, and that his errors and lapses, when they happen, will not offend his lordship or hurt the cause." the morality of the bar in those days will be better understood by the following observations of simple roger: "in circuit practice there is need of an exquisite knowledge of the judge's humor, as well as his learning and ability to try causes; and he, north, was a wonderful artist at watching a judge's tendency, to make it serve his turn, and yet never failed to pay the greatest regard and deference to his opinion; for so they get credit; because _the judge for the most part thinks that person the best lawyer that respects most his opinion_. i have heard his lordship say, that sometimes he hath been forced to give up a cause to the judge's opinion when he (the judge) was plainly in the wrong, and when more contradiction had but made him more positive; and, besides, that in so doing he himself had weakened his own credit with the judge, thereby been less able to set him right when he was inclined to it. a good opinion so gained often helps at another time to good purpose, and sometimes to ill purpose; as i heard it credibly reported of serjeant maynard that, being the leading counsel in a small feed cause, he would give it up to the judge's mistake, and not contend to set him right, that he might gain credit to mislead him in some other cause in which he was well feed." these gentlemen of the long robe ought to have changed places in court with the highwaymen they were retained to prosecute.[ ] there was no nonsense, however arrant, a silly judge might speak in deciding for north, which he would not back. thus a certain mr. justice archer, who seems to have been the laughing stock of the profession, having, to the amusement of the juniors, "noted a difference between a renunciation of an executorship upon record and _in pais_," north said, "ay, my lord; just so, my lord;" upon which his lordship became as fierce as a lion, and would not hear the argument on the other side. but even such a learned and sensible judge as chief justice hale, north could win by an affectation of modesty, diffidence, and profound veneration. early in his career, when he found it difficult to get to his place in a very crowded court, sir matthew said from the bench, "good people, make way for this little gentleman; he will soon make way for himself." his consultations were enormously long, and he gained vast applause at them by his care and dexterity in probing the cause, starting objections, inventing points, foretelling what would be said by the opposite counsel and by the judge, and showing how the verdict might be lost or was to be secured; but, to make security doubly sure, after mastering the record and perusing the deeds to be given in evidence, he himself examined the witnesses, and thus had an opportunity of presenting the facts properly to their minds. need we wonder that from an humble beginner, rejoicing in a cause that came to him, he soon became "cock of the circuit"--all who had trials rejoicing to have him on their side? i shall give one specimen of his conduct as a leader. he was counsel for the defendant in an action tried before his friend judge archer, for not setting out tithes--in which the treble value was to be recovered. finding that he had not a leg to stand upon, he manoeuvred to get his client off with the single value; so he told his lordship that this was a cause to try a right of a very intricate nature, which would require the reading a long series of records and ancient writings, and that it ought not to be treated as a penal action; wherefore, they should agree upon the single value of the tithes, for which the verdict should be taken conditionally, and then proceed fairly to try the merits. the judge insisted on this course being adopted; and the other side, not to irritate him, acquiesced in north's proposal. "then did he open a long history of matters upon record, of bulls, monasteries, orders, greater and lesser houses, surrenders, patents, and a great deal more, _very proper if it had been true_, while the counsel on the other side stared at him; and having done, they bid him go to his evidence. he leaned back, as speaking to the attorney, and then, '_my lord_,' said he, '_we are very unhappy in this cause. the attorney tells me they forgot to examine their copies with the originals at the tower_;' and (so folding up his brief,) '_my lord_,' said he, '_they must have the verdict, and we must come better prepared another time_.' so, notwithstanding all the mooting the other side could make, the judge held them to it, and they were choused of the treble value." while north had such success on the circuit, he was equally flourishing in westminster hall. by answering cases and preparing legal arguments for sir jeffrey palmer, and by flouting at parliamentary privilege, he was still higher than ever in favor with that potential functionary. it happened that in the year , after the fall of the earl of clarendon, a writ of error was brought in the house of lords by denzil hollis, now lord hollis, the only defendant surviving, upon the judgment of the court of king's bench in the great case of _the king_ v. _sir john elliot, denzil hollis, and others_, decided in the fifth year of the reign of charles i. this had been a prosecution by the king against five members of the house of commons, for what had been done in the house on the last day of the session, when sir john finch was held in the chair while certain resolutions alleged to be seditious had been voted, and one of the defendants had said "that the council and judges had all conspired to trample under foot the liberties of the subject." they had pleaded to the jurisdiction of the court of king's bench, "that the supposed offences were committed in parliament, and ought not to be punished or inquired of in this court, or elsewhere than in parliament." but their plea had been overruled, and they were all sentenced to heavy fine and imprisonment. although there had been resolutions of the house of commons, on the meeting of the long parliament, condemning this judgment, it still stood on record, and lord hollis thought it was a duty he owed to his country, before he died, to have it reversed. sir jeffrey palmer, as attorney general, pleaded _in nullo est erratum_; but having returned his writ of summons to the house of lords, and being in the habit of sitting there on the woolsack, as one of the assessors to the peers, he could not himself argue the case as counsel at the bar. the king's serjeants declined to do so out of respect to the house of commons. francis north, thinking this a most favorable opportunity to make himself known at court as an anti-parliamentarian lawyer, volunteered to support the judgment, and his services were accepted. he says himself "he was satisfied he argued on the right side, and that on the record the law was for the king." accordingly, on the appointed day he boldly contended that, as the information averred that the offences were committed _against the peace_, as privilege of parliament does not extend to offences in breach of the peace, as they had not been punished in the parliament in which they were committed, and as no subsequent parliament could take notice of them, they were properly cognizable in a court of common law. the judgment was reversed, but north's fortune was made. the duke of york was pleased to inquire "who that young gentleman was who had argued so well." being told that "he was the younger son of the lord north, and, what was rare among young lawyers at that time, of loyal principles," his royal highness undertook to encourage him by getting the king to appoint him one of his majesty's counsel. north was much gratified by receiving a message to this effect, but was alarmed lest the lord keeper bridgeman, who by his place was to superintend preferments in the law, might conceive a grudge against him for this interference with his patronage. the lord keeper acquitted him of all blame, wished him joy, and with peculiar civility desired him to take his place within the bar. things went on very smoothly with him now till the death of sir jeffrey palmer, when sir heneage finch being promoted to be attorney general, the solicitor's place was vacant. north, being the only king's counsel, and having been long employed in crown business, had a fair claim to succeed, and he was warmly supported by the lord keeper, as well as the new attorney general, who was desirous of having him for a colleague; but the duke of buckingham, at this time considered prime minister, preferred sir william jones, who was north's chief competitor in the king's bench, and over whose head he had been put when he received his silk gown.[ ] to terminate the difference they were both set aside, and the office of solicitor general was given to sir edward turner, speaker of the house of commons, who held it for a twelvemonth, at the end of which he was made chief baron of the exchequer, in the room of sir matthew hale, promoted to be chief justice of the common pleas. buckingham's influence had greatly declined, and north was made solicitor general without difficulty, jones being solaced with a silk gown, and the promise of further promotion on the next vacancy. the cabal was now in its full ascendancy; and as the leaders did not take any inferior members of the government into their councils, and contrived to prevent the meeting of parliament for nearly two years, the new solicitor had only to attend to his profession. of course, he gave up the circuit, and he set the example, generally followed for one hundred and fifty years, of making the court of chancery his principal place of practice, on being promoted to be a law officer of the crown; henceforth going to other courts only in cases in which the crown was concerned, or which were of very great magnitude. to keep up his law, when he could be spared from the court of chancery, he stepped across the hall and seated himself in the court of king's bench, "with his note book in his hand, reporting as the students about the court did, and during the whole time of his practice every christmas he read over littleton's tenures." he had hitherto practised conveyancing to a considerable extent; but he now turned over this business to siderfin the reporter, whom he appointed to serve him in the capacity of "devil," as he himself had served sir jeffrey palmer. he was on very decent terms with sir heneage finch, who had much assisted his promotion; but he showed his characteristic cunning by an expedient he adopted to get the largest share of the patent business. then, as now, all patents of dignity belong exclusively to the attorney general; but the warrants for all other patents might be carried either to the attorney or solicitor. north, with much dexterity, took into his employment a clerk of sir jeffrey palmer, who was reputed to have a magazine of the best precedents, and who had great interest among the attorneys, whereby many patents came to his chambers which otherwise would have gone to the attorney general's. but if he was eager to get money, he spent it freely. he was now appointed "autumn reader" of the middle temple, and though the festivity was not honored with the presence of royalty, like finch's, in the inner temple, it was conducted sumptuously, and cost him above a thousand pounds. he took for his subject "the statute of fines," which he treated very learnedly, and the arguers against him, the best lawyers of the society, did their part very stoutly. on the "grand day" all the king's chief ministers attended, and the profusion of the best provisions and wine led to such debauchery, disorder, tumult, and waste, that this was the last public reading in the inns of court, the lectures being discontinued and the banqueting commuted for a fine. i must not pass over his loves, although they were not very romantic or chivalrous. he was desirous of being married, among other reasons, because he was tired of dining in the hall and eating "a costelet and salad at chastelin's in the evening with a friend;" and he wished to enjoy the pleasures of domestic life. one would have thought that the younger son of a peer, of great reputation at the bar, solicitor general at thirty-one, and rising to the highest offices in the law, might have had no difficulty in matching to his mind; but he met with various rebuffs and disappointments. above all, he required wealth, which it seems was not then easily to be obtained without the display of a long rent roll. he first addressed the daughter of an old usurer in gray's inn, who speedily put an end to the suit by asking him "what estate his father intended to settle upon him for present maintenance, jointure, and provision for children." he could not satisfy this requisition by an "abstract" of his "profitable rood of ground in westminster hall." he then paid court to a coquettish young widow; but after showing him some favor, she jilted him for a jolly old knight of good estate. the next proposition was made by him to a city alderman, the father of many daughters, who, it was given out, were to have each a portion of six thousand pounds. north dined with the alderman, and liked one of them very much; but coming to treat, the fortune shrank to five thousand pounds. he immediately took his leave. the alderman ran after him, and offered him to boot five hundred pounds on the birth of the first child, but he would not bate a farthing of the six thousand. at last his mother found him a match to his mind in the lady frances pope, one of the three daughters and coheirs of the earl of down, who lived at wroxton, in oxfordshire, with fortunes of fourteen thousand pounds apiece. we are surprised to find that, with all his circuit and westminster hall earnings, he was obliged to borrow six hundred pounds from a friend before he could compass six thousand pounds to be settled upon her. he then ventured down with grand equipage and attendance, and in less than a fortnight obtained the young lady's consent, and the writings being sealed, the lovers were happily married. the feasting and jollities in the country lasted three weeks, and mr. solicitor, heartily tired of them, was very impatient to get back to his briefs. however, he seems always to have treated his wife, while she lived, with all due tenderness. he took a house in chancery lane, near serjeants' inn, and acquired huge glory by constructing a drain for the use of the neighborhood--a refinement never before heard of in that quarter. this was the happiest period of his life. in the beginning of , the meeting of parliament could be deferred no longer, and it was considered necessary that the solicitor general should have a seat in the house of commons. he remained member for lynn till he was made chief justice of the common pleas, in january, ; but i can hardly find any trace of his ever having spoken in the house of commons. shaftesbury was at last turned out, the great seal was given to sir heneage finch, and north became attorney general. he had for his colleague as solicitor his old rival, sir william jones, who seems to have been a considerable man, who afterwards had the virtue voluntarily to give up office that he might join the popular party, and who, if not cut off by an early death, would probably have acted the part of lord somers at the revolution, and left a great name in history. parliament met in a few weeks after north's promotion. we are told that "little or nothing of the king's business in the house of commons leaned upon him, because mr. secretary coventry was there, who managed for the court." north once or twice spoke a few words, "in resolving the fallacies of the country party," but did not venture beyond an opinion upon a point of law which incidentally arose. "he could not attend the house constantly, but took the liberty of pursuing his practice in westminster hall."[ ] there he was easily the first; and the quantity of business which he got through in chancery ("his home") and the other courts where he went _special_ seems to have been enormous. his mode of preparation was (like lord erskine's) to have a consultation in the evening before reading his brief, when "he was informed of the history of the cause, and where the pinch was". next morning at four he was called by a trusty boy, who never failed, winter or summer, to come into his chamber at that hour,[ ] and by the sitting of the court he had gone through his brief, and was ready to do ample justice to his clients. fees now flowed in upon him so fast that he hardly knew how to dispose of them. he seems to have taken them from his clients with his own hand. at one time he had had a fancy, for his health, to wear a sort of skullcap. he now routed out three of these, which he placed on the table before him, and into these he distributed the cash as it was paid to him. "one had the gold, another the crowns and half crowns, and another the smaller money." when these vessels were full, they were committed to his brother roger, who told out the pieces and put them into bags, which he carried to child's, the goldsmith, at temple bar.[ ] but still mr. attorney was dissatisfied with his position. he could not but be mortified by his insignificance in the house of commons. the country party there was rapidly gaining strength, and although it was not then usual for the crown to turn out its law officers on a change of ministers, he began to be very much frightened by threats of impeachment uttered against all who were instrumental in executing the measures of the government. shaftesbury was in furious opposition. while only at the head of a small minority in the house of lords, the house of commons was more and more under his influence. north was exceedingly timid, always conjuring up imaginary dangers, and exaggerating such as he had to encounter. he now exceedingly longed to lay his head on "the cushion of the common pleas," instead of running the risk of its being laid on the block on tower hill. vaughan, the chief justice of that court, died, and north's wishes were accomplished, notwithstanding some intrigues to elevate sir william jones or sir william montagu. when it came to the pinch, north was rather shocked to think of the sacrifice of profit which he was making, "for the attorney's place was (with his practice) near seven thousand pounds per annum, and the cushion of the common pleas not above four thousand. but accepting, he accounted himself enfranchised from the court brigues and attendances at the price of the difference." north held the office of chief justice of the common pleas nearly eight years, which may be divided into two periods-- st. from his appointment till the formation of the council of thirty, on the recommendation of sir william temple, in the year ; dly. from thence till he received the great seal, in the end of the year . during the former he mixed little in politics, and devoting himself to his juridical duties, he discharged them creditably. at this time, and for long after, the emoluments of the judges in westminster hall depended chiefly upon fees, and there was a great competition between the different courts for business. the king's bench, originally instituted for criminal proceedings, had, by a dexterous use of their writ of "_latitat_," tricked the common pleas of almost all civil actions; and when the new chief justice took his seat, he found his court a desert. there was hardly sufficient business to countenance his coming every day in term to westminster hall, while the serjeants and officers were repining and starving. but he was soon up with the king's bench, by a new and more dexterous use of the "_capias_," the ancient writ of that court--applying it to all personal actions. at this time, a judge, when appointed, selected a circuit, to which he steadily adhered, till another, which he preferred, became vacant. chief justice north for several years "rode the western;" and in his charges to juries, as well as in his conversation with the country gentlemen, he strongly inculcated the most slavish church-and-king doctrines, insomuch that the cavaliers called him "_deliciæ occidentis_," or "the darling of the west." the chief justice afterwards went the northern circuit, attended by his brother roger, who gives a most entertaining account of his travels, and who seems to have thought the natives of northumberland and cumberland as distant, as little known, and as barbarous, as we should now think the esquimaux or the aborigines of new zealand. till the popish plot broke out, chief justice north had no political trials before him; and the only cases which gave him much anxiety were charges of witchcraft. he does not appear, like chief justice hale, to have been a believer in the black art; but, with his characteristic timidity, he was afraid to combat the popular prejudice, lest the countrymen should cry, "this judge hath no religion; he doth not believe witches." therefore he avoided trying witches himself as much as possible, and turned them over to his brother judge, mr. justice raymond, whom he allowed to hang them. he was once forced to try a wizard; but the fraud of a young girl, whom the prisoner was supposed to have enchanted and made to spit pins, was so clearly exposed by the witnesses, that the chief justice had the boldness to direct an acquittal. the popish plot he treated as he did witchcraft. he disbelieved it from the beginning, but was afraid openly to express a doubt of its reality. he thought it might be exposed by the press, and he got a man to publish an anonymous pamphlet against it, to which he contributed; but sitting along with chief justice scroggs, who presided at the trial of those charged with being implicated in it, he never attempted to restrain this "butcher's son and butcher" from slaughtering the victims. so on the trial of lord stafford, though he privately affected severely to condemn the proceeding, he would not venture to save lord nottingham,[ ] the high steward, from the disgrace of assisting in that murder; and he dryly gave his own opinion that two witnesses were not necessary to each overt act of treason. we have still more flagrant proof of his baseness on the trial of reading, prosecuted by order of the house of commons for trying to suppress evidence of the plot. north himself now presided, and having procured a conviction, in sentencing the defendant to fine, imprisonment, and pillory, he said, "i will tell you your offence is so great, and hath such a relation to that which the whole nation is concerned in, because it was an attempt to baffle the evidence of that conspiracy, which, if it had not been, by the mercy of god, detected, god knows what might have befallen us all by this time." we now come to present north on the political stage, where he continued to act a very conspicuous and disreputable part down to the time of his death. in the year , when the king adopted his new plan of government by a council of thirty, of which shaftesbury was made president, and into which lord russell and several of the popular leaders were introduced, it was thought fit to balance them by some determined ultra-royalists; and the lord chief justice of the common pleas, who had acquired himself the reputation of being the most eminent of that class, was selected, although he had not hitherto been a privy councillor. at first he seldom openly gave any opinion in council, but he secretly engaged in the intrigues which ended in the abrupt prorogation and dissolution of the parliament, in the dismissal of shaftesbury, and the resignation of lord russell and the whigs. the scheme of government was then altered, and a cabinet, consisting of a small number of privy councillors, was formed, north being one of them. to his opinion on legal and constitutional questions the government was now disposed to show more respect than to that of lord chancellor nottingham. there being much talk against the court in the london coffee houses, it was wished to suppress them by proclamation; and our chief justice, being consulted on the subject, gave this response--that "though retailing of coffee may, under certain circumstances, be an innocent trade, yet as it is used at present in the nature of a common assembly to discourse of matters of state, news, and great persons, it becomes unlawful; and as the coffee houses are nurseries of idleness and pragmaticalness, and hinder the consumption of our native provisions, they may be treated as common nuisances." accordingly, a proclamation was issued for shutting up all coffee houses, and forbidding the sale of coffee in the metropolis; but this caused such a general murmur, not only among politicians and idlers, but among the industrious classes connected with foreign and colonial trade, that it was speedily recalled. the meeting of the new parliament summoned in the end of having been repeatedly postponed, there arose the opposite factions of "petitioners" and "abhorrers"--the former _petitioning_ the king that parliament might be speedily assembled for the redress of grievances, and the latter, in their addresses to the king, expressing their _abhorrence_ of such seditious sentiments. the "petitioners," however, were much more numerous and active, and a council was called to consider how their proceedings might be stopped or punished. our chief justice recommended a proclamation, which the king approved of, and ordered the attorney general, sir creswell levinz, to draw. mr. attorney, alarmed by considering how he might be questioned for such an act on the meeting of parliament, said, "i do not well understand what my lord chief justice means, and i humbly pray of your majesty that his lordship may himself draw the proclamation." _king._--"my lord, i think then you must draw this proclamation." _chief justice._--"sire, it is the office of your majesty's attorney general to prepare all royal proclamations, and it is not proper for any one else to do it. i beg that your majesty's affairs may go on in their due course; but if in this matter mr. attorney doubts any thing, and will give himself the trouble to call upon me, i will give him the best assistance i can." sir creswell, having written on a sheet of paper the formal commencement and conclusion of a royal proclamation, carried it to the chief justice, who filled up the blank with a recital that, "for spurious ends and purposes relating to the public, persons were going about to collect and procure the subscriptions of multitudes of his majesty's subjects to petitions to his majesty; which proceedings were contrary to the known laws of this realm, and ought not to go unpunished;" and a mandate to all his majesty's loving subjects, of what rank or degree soever, "that they presume not to agitate or promote any such subscriptions, nor in any wise join in any petition in that manner to be preferred to his majesty, upon pain of the utmost rigor of the law, and that all magistrates and other officers should take effectual care that all such offenders against the laws be prosecuted and punished according to their demerits."[ ] parliament at last met, and strong measures were taken against the "abhorrers," who had obstructed the right of petitioning. an inquiry was instituted respecting the proclamation. sir creswell levinz was placed at the bar, and asked by whose advice or assistance he had prepared it. he several times refused to answer; but being hard pressed, and afraid of commitment to the tower, he named the lord chief justice north, against whom there had been a strong suspicion, but no proof. a hot debate arose, which ended in the resolution, "that the evidence this day given to this house against sir francis north, chief justice of the common pleas, is sufficient ground for this house to proceed upon an impeachment against him for high crimes and misdemeanors." he was a good deal alarmed by the vote of impeachment,[ ] but it raised him still higher in favor at court. next day, presiding in the house of lords as speaker, in the absence of the lord chancellor, and seeming very much dejected, king charles (according to his manner) "came and clapped himself down close by him on the woolsack, and 'my lord,' said he, 'be of good comfort; i will never forsake my friends, as my father did.'" his majesty, without waiting for a reply, then walked off to another part of the house. a committee was appointed to draw up the articles of impeachment against the chief justice; but before they made any report, this parliament too was dissolved. soon after the summoning of charles's last parliament, north was obliged to set off upon the spring circuit; and notwithstanding his best efforts to finish the business rapidly, he could not arrive at oxford till the two houses had assembled. he was one of the small junto to whom was intrusted the secret of immediate dissolution. the moment the deed was done, he set off for london, pretending to be afraid of what he called "the positive armament against the king, which manifestly showed itself at oxford." as soon as the cabinet met at whitehall, north advised the issuing of a declaration to justify the dissolution of the three last parliaments which had met respectively at westminster and oxford, and himself drew an elaborate one, which was adopted. this state paper certainly puts the popular party in the wrong upon the "exclusion question" and other matters with considerable dexterity, and it was supposed to have contributed materially to the reaction going on in favor of the government. so far his conduct was legitimate, and in the fair exercise of his functions as a privy councillor; but i am sorry to say that he now sullied his ermine by a flagrant disregard of his duties as a judge. the grand jury for the city of london having very properly thrown out the bill of indictment against stephen college, "the protestant joiner," it was resolved to try him at oxford; and for this purpose a special commission was issued, at the head of which was placed lord chief justice north. burnet says mildly, "north's behavior in that whole matter was such that, probably, if he had lived to see an impeaching parliament, he might have felt the ill effects of it." after perusing the trial, i must say that his misconduct upon it was most atrocious. the prisoner, being a violent enemy to popery, had attended the city members to oxford as one of their guard, with "no popery" flags and cockades, using strong language against the papists and their supporters, but without any thought of using force. yet the chief justice was determined that he should be found guilty of compassing and imagining the king's death, and levying war against him in his realm.[ ] college's papers, which he was to use in his defence, were forcibly taken from him, on the ground that they had been written by some other persons, who gave him hints what he was to say. they were in reality prepared by his legal advisers, mr. aaron smith and mr. west. the prisoner was checked and browbeaten as often as he put a question or made an observation. his defence was much more able than could have been expected from a person in his station of life, but of course he was convicted. the chief justice, in passing sentence, observed, "look you, mr. college; because you say you are innocent, it is necessary for me to say something in vindication of the verdict, which i think the court were all well satisfied with. i thought it was a case that, as you made your own defence, small proof would serve the turn to make any one believe you guilty. for, as you defend yourself by pretending to be a protestant, i did wonder, i must confess, when you called so many witnesses to your religion and reputation, that none of them gave an account that they saw you receive the sacrament within these many years, or any of them particularly had seen you at church in many years, or what kind of protestant you were. but crying aloud against the papists, it was proved here who you called papists. you had the boldness to say the king was a papist, the bishops were papists, and the church of england were papists. if these be the papists you cry out against, what kind of protestant you are i know not--i am sure you can be no good one. how it came into your head, that were but a private man, to go to guard the parliament, i much wonder. suppose all men of your condition should have gone to have guarded the parliament, what an assembly had there been! and though you say you are no man of quality, nor likely to do any thing upon the king's guards or the king's person, yet if all your quality had gone upon the same design, what ill consequences might have followed! we see what has been done by massaniello, a mean man, in another country--what by wat tyler and jack straw in this kingdom." college asked him to fix the day of his death, but he answered that that depended on the king; adding, in a tone of great humanity, "that he should have due notice of it to prepare, by repenting of his crimes." college's innocence was so manifest, that even hume, eager to palliate all the atrocities of this reign, says, "that his whole conduct and demeanor prove him to have been governed by an honest but indiscreet zeal for his country and his religion." on the st of august, , the sentence, with all its savage barbarities, was carried into execution. "sir francis north," observes roger coke, "was a man cut out, to all intents and purposes, for such a work." he was next called upon to assist at the immolation of a nobler victim, who escaped from the horns of the altar. shaftesbury had been for some time very careful never to open his mouth on politics out of the city of london and county of middlesex, and during the oxford parliament had touched on no public topic except in the house of lords. it was resolved at all hazards to bring him to trial; but this could only be done by an indictment to be found at the old bailey. there did north attend when the indictment was to be preferred, and, resolutely assist lord chief justice pemberton in perverting the law,[ ] by examining the witnesses in open court, and by trying to intimidate and mislead the grand jury; but he was punished by being present at the shout, which lasted an hour, when "_ignoramus_" was returned. he next zealously lent himself to the scheme of the court for upsetting the municipal privileges of the city of london, and of obtaining sheriffs for london and middlesex who would return juries at the will of the government. the lord mayor having been gained over, and the stratagem devised of creating a sheriff by the lord mayor drinking to him, instead of by the election of his fellow-citizens, the difficulty was to find any freeman of fair character who would incur all the odium and risk of being so introduced to the shrievalty. it so happened that at that time there returned to england a brother of the chief justice, mr. dudley, afterwards sir dudley north, who was free of the city from having been apprenticed there to a merchant, and who had amassed considerable wealth by a long residence in turkey. it being suggested at court that this was the very man for their sheriff; "the king very much approved of the person, but was very dubious whether the chief justice, with his much caution and wisdom, would advise his brother to stand in a litigious post. but yet he resolved to try; and one day he spoke to sir francis with a world of tenderness, and desired to know if it would be too much to ask his brother dudley to hold sheriff on my lord mayor's drinking." the wily chief justice immediately saw the advantage this proposal might bring to the whole family, and returned a favorable answer. "for matter of title," says roger, "he thought there was more squeak than wool; for whatever people thought was at the bottom, if a citizen be called upon an office by the government of the city, and obeys, where is the crime? but then such a terrible fear was artificially raised up in the city as if this service was the greatest hazard in the world." sir francis gently broke the matter to his brother, saying "that there was an opportunity which preferred itself whereby he might make a fortune if he wanted it, and much enlarge what he had, besides great reputation to be gained, which would make him all the days of his life very considerable, laying open the case of the lord mayor's right very clear and plain, against which in common sense there was no reply." dudley, however, made many objections, and talked of the terrible expense to which he should be exposed. the chief justice urged that if he served, the obligation was so transcendent, that there could be no employment by commission from the crown which would not fall to his share, "and as for the charge," said he, "here, brother, take a thousand pounds to help make good your account, and if you never have an opportunity by pensions or employments to reimburse you and me, i will lose my share; else i shall be content to receive this thousand pounds out of one half of your pensions when they come in, and otherwise not at all." the merchant yielded; and under this pure bargain, proposed by the judge before whom the validity of the appointment might come to be decided, when his health was given by the lord mayor as sheriff of london and middlesex, he agreed to accept the office. but the old sheriffs insisted on holding a common hall for the election of their successors, according to ancient usage, on midsummer day; when lord chief justice north had the extreme meanness, at the king's request, to go into the city and take post in a house near guildhall, belonging to sir george jeffreys, "who had no small share in the conduct of this affair, to the end that if any incident required immediate advice, or if the spirits of the lord mayor should droop, which in outward appearance were but faint, there might be a ready recourse." it is true the opposite faction had the lord grey de werke and other leaders from the west end of the town, to advise and countenance them; but this could be no excuse for a judge so degrading himself. the poll going for the popular candidates, the lord mayor, by chief justice north's advice, under pretence of a riot, attempted to adjourn the election; but the sheriffs required that the polling should continue, and declared papillon and dubois duly elected. this causing great consternation at whitehall, a council was called, to which the lord mayor and aldermen were summoned. lord chief justice north, by the king's command, addressed them, saying, "that the proceedings of the sheriffs at the common hall after the adjournment were not only utterly null and void, but the persons were guilty of an audacious riot and contempt of lawful authority, for which by due course of law they would be severely punished; but in the mean time it was the lord mayor's duty and his majesty's pleasure that they should go back to the city and summon the common hall, and make election of sheriffs for the year ensuing." the lord mayor, having been told that the courtiers would bamboozle him and leave him in the lurch, when north had concluded, said, "my lord, will your lordship be pleased to give me this under your hand?" the king and all the councillors were much tickled to see the wily chief justice thus nailed, "expecting some turn of wit to fetch himself off, and thinking to have sport in seeing how woodenly he would excuse himself." but to their utter astonishment, for once in his life francis north was bold and straightforward, and cheating them all, he answered, without any hesitation, "yes, and you shall have it presently." then seizing a pen, he wrote, "i am of opinion that it is in the lord mayor's power to call, adjourn, and dissolve the common hall at his pleasure, and that all acts done there, as of the common hall, during such adjournment, are mere nullities, and have no legal effect." this he signed and handed to the lord mayor, who then promised obedience. accordingly, another common hall was called, at which it was pretended that sir dudley north and rich were elected, and they were actually installed in the office of sheriff. by the contrivance of lord chief justice north, the office of lord mayor for the ensuing year was likewise filled by a thorough passive-obedience tool of the court. gould, the liberal candidate, had a majority of legal votes on the poll, but under a pretended scrutiny, pritchard was declared duly elected, and sir john more, the renegade mayor, willingly transferred to him the insignia of chief magistrate, so that the king had now the city authorities completely at his devotion. shaftesbury fled to holland; and it was for the court to determine when the blow should be struck against the popular leaders who remained. such were the services of lord chief justice north, which all plainly saw would ere long be rewarded by higher promotion. the health of lord nottingham, the chancellor, was rapidly declining, and the court had already designated his successor. lord craven, famous for wishing to appear intimate with rising men, in the circle at whitehall, now seized lord chief justice north by the arm and whispered in his ear; and the foreign ambassadors so distinctly saw the shadow of the coming event that they treated him with as great respect as if he had been prime minister, "and when any of them looked towards him and thought he perceived it, they very formally bowed." we are told that in many things north acted as "co-chancellor" with nottingham; and for the first time the office of chancellor seems to have been like that of sheriff of middlesex, one in its nature, but filled by two officers of equal authority. it is said that "the _aspirant_ dealt with all imaginable kindness and candor to the _declinant_, and that never were predecessor and successor such cordial friends to each other, and in every respect mutually assistant, as those two were." while the lord chancellor was languishing, the chief justice being at windsor, the king plainly intimated to him that when the fatal event, which must be shortly looked for, had taken place, the great seal would be put into his hands. he modestly represented himself to his majesty as unfit for the place, and affected by all his art and skill to decline it. in truth, he really wished to convey to the king's mind the impression that he did not desire it, although he had been working so foully for it--as he knew it would be pressed upon him, there being no competitor so knowing and so pliant, and he had an important stipulation to make for a pension before he would accept it. when he came back to london, and confidentially mentioned what had passed between him and the king, he pretended to be annoyed, and said "that if the seal were offered to him he was determined to refuse it;" but it is quite clear that he was highly gratified to see himself so near the great object of his ambition, and that his only anxiety now was, that he might drive a good bargain when he should consent to give up "the cushion of the common pleas." lord nottingham having died about four o'clock in the afternoon of monday, the th of december, , the great seal was carried next morning from his house, in great queen street, to the king at windsor. the following day his majesty brought it with him to whitehall, and in the evening sent for the lord chief justice of the common pleas, to offer it to him. when north arrived, he found lord rochester, the treasurer, and several other ministers, closeted with charles. as yet there was no distinction between the funds to be applied to the king's private expenses and to the public service--the exchequer being now very empty, and the resolution being taken never more to summon a parliament for supplies--it was considered an object that the keeper of the great seal should be contented with the fees of his office, without any allowance or pension from the crown. charles himself was careless about such matters, but the treasurer had inculcated upon him the importance of this piece of economy. as soon as north entered, his majesty offered him the seal, and the ministers began to congratulate the new lord keeper; but, with many acknowledgments for his majesty's gracious intentions, he begged leave to suggest the necessity, for his majesty's honor, that a pension[ ] should be assigned to him, as it had been to his predecessor, for otherwise the dignity of this high office could not be supported. rochester interposed, pointing out the necessity, in times like these, for all his majesty's servants to be ready to make some sacrifices; that the emoluments of the great seal were considerable; and that it would be more becoming to trust to his majesty's bounty than to seek to drive a hard bargain with him. but sir george jeffreys being yet only a bustling city officer, who could not with any decency have been put at the head of the law; the attorney and solicitor general not being considered men of mark or likelihood; sir harbottle grimston, the master of the rolls, being at death's door, and no other common law judge besides himself being produceable, the little gentleman was firm, and positively declared that he would not touch the great seal without a pension. after much haggling, a compromise took place, by which he was to have two thousand pounds a year instead of the four thousand pounds a year assigned to his predecessor. the king then lifted up the purse containing the seal, and putting it into his hand, said, "here, my lord, take it; you will find it heavy." "thus," says roger north, "his majesty acted the _prophet_ as well as the _king_; for, shortly before his lordship's death, he declared that, _since he had the seal, he had not enjoyed one easy and contented minute_." when the new lord keeper came home at night from whitehall to his house in chancery lane, bringing the great seal with him, and attended by the officers of the court of chancery, instead of appearing much gratified, as was expected by his brother and his friends, who were waiting to welcome him, he was in a great rage--disappointed that he had not been able to make a better bargain, and, perhaps, a little mortified that he had only the title of "lord keeper" instead of the more sounding one of "lord chancellor." recriminating on those with whom he had been so keenly acting the chapman, he exclaimed, "to be haggled with about a pension, as at the purchase of a horse or an ox! after i had declared that i would not accept without a pension, to think i was so frivolous as to insist and desist all in a moment! as if i were to be wheedled and charmed by their insignificant tropes! to think me worthy of so great a trust, and withal so little and mean as to endure such usage! it is disobliging, inconsistent, and insufferable. what have i done that may give them cause to think of me so poor a spirit as to be thus trifled with?" it might have been answered that, though the king and the courtiers made use of him for their own ends, they had seen his actions, understood his character, and had no great respect for him. till jeffreys was a little further advanced, they could not run the risk of breaking with him; but then he was subjected to all sorts of mortifications and insults. on the first day of the following hilary term he took his place in the court of chancery. by this time he was in possession of his predecessor's house in great queen street, lincoln's inn fields, and he had a grand procession from thence to westminster hall, attended by the duke of ormond, the earls of craven and rochester, the great officers of state, and the judges. he took the oaths, the master of the rolls holding the book. he does not appear to have delivered any inaugural address. the attendant lords staid and heard a motion or two, and then departed, leaving the lord keeper in court. they might have been well amused if they had remained. for the crooked purposes of the government, with a view to the disfranchising of the city of london by the _quo warranto_ defending against it, pemberton[ ] was this day to be removed from being chief justice of the king's bench to be chief justice of the common pleas, and edmund saunders was to be at once raised from wearing a stuff gown at the bar to be chief justice of the king's bench. this keen but unscrupulous lawyer was previously to be made a serjeant, that he might be qualified to be a judge, and, coming into the court of chancery, he presented the lord keeper with a ring for himself, and another for the king, inscribed with the courtly motto, "_principi sic placuit_." the lord keeper then accompanied him into court where he was to preside, called him to the bench, and made him a speech on the duties of his office. the ceremonies of the day were concluded by his lordship afterwards going to his old court, the common pleas, and there swearing in pemberton as his successor, whom he congratulated upon "the ease with dignity" which he was now to enjoy. parasites and preferment-hunters crowded the levee of the new lord keeper. he was immediately waited upon by the courtly evelyn, who discovered in him a thousand good qualities.[ ] in the midst of these blandishments he applied himself with laudable diligence to the discharge of his judicial duties. he declared that he was shocked by many abuses in the court of chancery, and he found fault with the manner in which his two predecessors, bridgeman and nottingham, had allowed the practice of the court to lead to delay and expense. north's conduct as a law reformer was extremely characteristic. he talked much of issuing a new set of "rules and orders" to remedy all abuses, but he was afraid "that it would give so great alarm to the bar and officers, with the solicitors, as would make them confederate and demur, and, by making a tumult and disturbance, endeavor to hinder the doing any thing of that kind which they would apprehend to be very prejudicial to their interests."[ ] then, when he wished to simplify the practice and to speed causes to a hearing and final decree, he considered that he was not only to regard the suitors, but that "there was a justice due as well to the crown, which had advantage growing by the disposition of places, profits, by process of all sorts, as also the judges and their servants, and counsel at the bar, and solicitors, who were all in possession of their advantages, and by public encouragement to spend their youth to make them fit for them, and had no other means generally to provide for themselves and their families, and had a right to their reasonable profits, if not strictly by law, yet through long connivance." i think we must say that his alleged merit as a chancery reformer consists chiefly in the profession of good intentions; that he allowed the practice of the court to remain pretty much as he found it; and that if he saw and approved what was right, he followed what was wrong--aggravating his errors by disregarding the strong dictates of his conscience. nevertheless, he applied himself very assiduously to the business of his court, which, from his experience at the bar, and from his having often sat for his predecessor, was quite familiar to him; and he seems to have disposed of it satisfactorily. he was not led into temptation by having to decide in equity any political case; and no serious charge was preferred against him of bribery or undue influence. till the meeting of parliament in the reign of james, and the failure of his health, he prevented the accumulation of arrears; and, upon the whole, as an equity judge, he is to be praised rather than censured. i wish as much could be said of his political conduct while he held the great seal. he may have _wished_ "to bring the king to rule wholly by law, and to do nothing which, by any reasonable construction, might argue the contrary;" but for this purpose he would make feeble efforts, and no sacrifice; and all the measures of the court, however profligate, when resolved upon, he strenuously assisted in carrying into execution. the ministers who now bore sway, and who were on several points opposed to each other, were halifax, sunderland, and rochester. the duke of york, restored to the office of lord high admiral and to the privy council, in direct violation of the "test act," had so much influence, that it was said that "to spite those who wished to prevent him from reigning at the king's death, he was permitted to reign during the king's life." the duchess of portsmouth was likewise at the head of a party at court, although mrs. gwin, her protestant rival, did not interfere with politics. with none of these would the lord keeper combine. his policy was to study the peculiar humors of the king--to do whatever would be most agreeable personally to him--to pass for "the king's friend"--and to be "_solus cum solo_." charles, although aware of his cunning and his selfishness, was well pleased with the slavish doctrines he laid down, and with the devoted zeal he expressed for the royal prerogative; and till jeffrey's superior vigor, dexterity, and power of pleasing gained the ascendancy, usually treated him with decent consideration. he never would give any opinion on foreign affairs, nor attend a committee of council summoned specially to consider them, professing himself, for want of a fit education and study, incompetent to judge at all of these matters, and declaring, like a true courtier, that "king charles ii. understood foreign affairs better than all his councils and councillors put together." but he regularly attended all other cabinet meetings, and when there was any business of a judicial nature to be done at the council-table, he always presided there, "the lord president not having the art of examining into and developing cases of intricacy." the first of these in which he had to display his powers, was the disfranchisement of the city of london. saunders, counsel in the _quo warranto_, having been appointed chief justice, to decide in favor of the sufficiency of the pleadings which he himself had drawn, the opinion of the court of king's bench had been pronounced for the crown, "that all the city charters were forfeited." formal judgment was not yet entered on the record, to give an opportunity to the mayor, aldermen and citizens, to make their submission and to accept terms which might henceforth annihilate their privileges and make them the slaves of the government. they accordingly did prepare a petition to the king, imploring his princely compassion and grace, which they presented to him at a council held at windsor on the th of june, . the petition being read, they were ordered to withdraw, and when they were again called in, the lord keeper thus addressed them, disclosing somewhat indiscreetly the real motives for the _quo warranto_: "my lord mayor, i am by the king's command to tell you that he hath considered the humble petition of the city of london, where so many of the present magistrates and other eminent citizens are of undoubted loyalty and affection to his service; that for their sakes his majesty will show the city all the favor they can reasonably desire. it was very long before his majesty took resolutions to question their charter; it was not the seditious discourses of the coffee-houses, the treasonable pamphlets and libels daily published and dispersed thence into all parts of the kingdom, the outrageous tumults in the streets, nor the affronts to his courts of justice, could provoke him to it. his majesty had patience until disorders were grown to that height, that nothing less seemed to be designed than a ruin to the government both of church and state." after pointing out the mischief of having factious magistrates, he adds: "it was high time to put a stop to this growing evil. this made it necessary for his majesty to inquire into the abuses of franchises, that it might be in his power to make a regulation sufficient to restore the city to its former good government." he then stated the regulations to which they were required to assent, among which were--"that no lord mayor, sheriff, or other officer should be appointed without the king's consent; that the king might cashier them at his pleasure; that if the king disapproved of the sheriffs elected, he might appoint others by his own authority; and that the king should appoint all magistrates in the city by his commission, instead of their being elected as hitherto." the citizens refused to comply with these terms, and judgment was entered up. thus, on the most frivolous pretexts, and by a scandalous perversion of the forms of law, was the city of london robbed of the free institutions which it had enjoyed, and under which it had flourished for many ages. the proceeding was less appalling to the public than the trial and execution of eminent patriots, but was a more dangerous blow to civil liberty. london remained disfranchised, and governed by the agents of the crown, during the rest of this reign, and till the expected invasion of the prince of orange near the conclusion of the next--when, too late, an offer was made to restore its charters with all its ancient privileges. immediately after the revolution, they were irrevocably confirmed by act of parliament. the lord keeper's conduct in this affair gave such high satisfaction at court, that, as a reward for it, he was raised to the peerage by the title of baron guilford. his brother says that he did not seek the elevation from vanity, but that he might be protected against the attacks which might hereafter be made upon him in the house of commons. he obtained it on the recommendation of the duke of york, who overlooked his dislike of popery in respect of his steady hatred to public liberty. to show his gratitude, the new peer directed similar proceedings to be commenced against many other corporations, which ended in the forfeiture or surrender of the charters of most of the towns in england in which the liberal party had enjoyed an ascendancy. gilbert burnet,[ ] about this time appointed preacher at the rolls, thought he had secured a protector in the lord keeper; but as soon as this whig divine had incurred the displeasure of the court, his lordship wrote to the master of the rolls that the king considered the chapel of the rolls as one of his own chapels, and that dr. burnet must be dismissed as one disaffected to the government. in consequence, he was obliged to go beyond seas, and to remain in exile, till he returned with king william. soon after followed the disgraceful trials for high treason, which arose out of the discovery of the rye-house plot. the lord keeper did not preside at these; but having directed them--superintending the general administration of justice, and especially bound to see that the convictions had been obtained on legal evidence--he is deeply responsible for the blood that was shed. he must have known that if, in point of law, the witnesses made out a case to be submitted to the jury against lord russell, that virtuous nobleman was really prosecuted for his support of the exclusion bill; and he must have seen that against algernon sydney no case had been made out to be submitted to the jury, as there was only one witness that swore to any thing which could be construed into an overt act of treason, and the attempt to supply the defect by a ms. containing a speculative essay on government, which was found in his study, and had been written many years before, was futile and flagitious. yet did he sign the death-warrants of both these men, whose names have been honored, while his has been execrated in all succeeding times. it is edifying and consolatory to think that he was outdone by his own arts, and that the rest of his career was attended by almost constant mortification, humiliation, and wretchedness. saunders enjoyed the office of chief justice of the king's bench only for a few months, being carried off by an apoplexy soon after the decision of the great london _quo warranto_ cause. an intrigue was immediately set on foot to procure the appointment for jeffreys, who had more than ever recommended himself to the court by his zeal on the trial of lord russell, in which he had eclipsed the attorney and solicitor general; and he was anxiously wanted to preside at the trial of sydney, against whom the case was known to be so slender, but who was particularly obnoxious on account of his late quarrel with the duke of york, and his sworn enmity to despotism.[ ] the pretensions of jeffreys were supported by sunderland, probably out of ill will to the lord keeper, who had intuitively shown a great jealousy of the new favorite. but the proposal produced great opposition and bickerings among different sections of courtiers. the lord keeper of course resisted it _totis viribus_, representing to the king that the office, according to ancient and salutary usage, ought to be offered to the attorney and solicitor general, who had been irregularly passed over on the appointment of the late chief justice, to gain an object of such magnitude as the forfeiture of the city charters; that saunders was a man of immense learning, which countenanced _his_ sudden elevation; but that jeffreys, though gifted with a fluency of speech, was known to be unequal to so high an office; and that the whole profession of the law, and the public, would condemn an act so arbitrary and capricious. charles was, or pretended to be, impressed by these arguments, which he repeated to sunderland, and the office was kept vacant for three months after the death of saunders. but on the th of september, the lord keeper had the mortification to put the great seal to the writ constituting jeffreys "chief justice of england," and on the first day of the following michaelmas term to make a speech, publicly congratulating him on his rise to the supreme seat of criminal justice, so well merited by his learning, his abilities, and his services. what was worse, the new lord chief justice was not only sworn a privy councillor, but, in a few weeks, was admitted into the cabinet, where he, from the first, set himself to oppose the opinions, and to discredit the reputation, of him who, he knew, had opposed his appointment, and whom (his ambition being still unsatiated) he was resolved, in due time, to supplant. jeffreys began with interfering very offensively in the appointment of puisne judges, which of right belonged to the lord keeper. at first he was contented with the reputation of power in this department. he next resolved to make a judge, by his own authority, of a man almost as worthless as himself. this was sir robert wright, who had never had any law, who had spent his patrimony in debauchery, and who, being in great distress, had lately sworn a false affidavit to enable him to commit a fraud upon his own mortgagee.[ ] jeffreys was not satisfied with his triumph without proclaiming it to all westminster hall. "being there that same morning, while the court of chancery was sitting, he beckoned to wright to come to him, and giving him a slap on the shoulder, and whispering in his ear, he flung him off, holding out his arms towards the lord keeper. this was a public declaration _that, in spite of that man above there, wright should be a judge_. his lordship saw all this as it was intended he should, and it caused some melancholy." but he found it convenient to pocket the insult: he put the great seal to wright's patent, and assisted at the ceremony of his installation. there is no trace of the lord keeper's speech on this occasion, so that we do not know in what terms he complimented the new judge on his profound skill in the law, his spotless integrity, and his universal fitness to adorn the judgment seat. when heated with liquor, jeffreys could not now conceal his contempt for the lord keeper, even in the king's presence. it is related that, upon the hearing of a matter before the council, arising out of a controversy for jurisdiction between two sets of magistrates, guilford proposed some sort of compromise between them, when the lord chief justice, "flaming drunk," came from the lower to the upper end of the board, and "talking and staring like a madman," bitterly inveighed against "trimmers," and told the king "he had _trimmers_ in his court, and he never would be easy till all the _trimmers_ were sent about their business." "the lord keeper, knowing that these darts were aimed at him,[ ] moved the king that the whole business should be referred to the lord chief justice, and that he should make a report to his majesty in council of what should be fit to be done." this was ordered, and guilford seems to have entertained a hope that jeffreys, from the state of intoxication he was in, would entirely forget the reference, and so might fall into disgrace.[ ] but the most serious difference between them in charles's time was on the return of jeffreys from the northern circuit in the autumn of , when, backed by the duke of york, he had a deliberate purpose of immediately grasping the great seal. at a cabinet council, held on a sunday evening, he stood up, and addressing the king while he held in his hands the rolls of the recusants in the north of england--"sir," said he, "i have a business to lay before your majesty which i took notice of in the north, and which well deserves your majesty's royal commiseration. it is the case of numberless members of your good subjects that are imprisoned for recusancy:[ ] i have the list of them here to justify what i say. they are so many that the great jails cannot hold them without their lying one upon another." after tropes and figures about "rotting and stinking in prison," he concluded with a motion to his majesty "that he would, by his pardon, discharge all the convictions for recusancy, and thereby restore air and liberty to these poor men." this was a deep-laid scheme, for besides pleasing the royal brothers, one of whom was a secret, and the other an avowed papist, he expected that guilford must either be turned out for refusing to put the great seal to the pardon, or that he would make himself most obnoxious to the public, and afterwards to parliament, by compliance. a general silence prevailed, and the expectation was that halifax or rochester, who were strong protestants, would have stoutly objected. the lord keeper, alarmed lest the motion should be carried, and seeing the dilemma to which he might be reduced, plucked up courage and said, "sir, i humbly entreat your majesty that my lord chief justice may declare whether all the persons named in these rolls are actually in prison or not?" _chief justice._--"no fair man could suspect my meaning to be that all these are actual prisoners; for all the jails in england would not hold them. but if they are not in prison, their case is little better; for they lie under sentence of commitment, and are obnoxious to be taken up by every peevish sheriff or magistrate, and are made to redeem their liberty with gross fees, which is a cruel oppression to them and their families." _lord keeper._--"sir, i beg your majesty will consider what little reason there is to grant such a general pardon at this time. for they are not all roman catholics that lie under sentence of recusancy, but sectaries of all kinds and denominations; perhaps as many, or more, who are all professed enemies to your majesty and your government in church and state. they are a turbulent people, and always stirring up sedition. what will they not do when your majesty gives them a discharge at once? is it not better that your enemies should live under some disadvantages, and be obnoxious to your majesty's pleasure, so that, if they are turbulent or troublesome, you may inflict the penalties of the law upon them? if there be any roman catholics whom you wish to favor, grant to them a particular and express pardon, but do not by a universal measure set your enemies as well as your friends at ease. the ill uses that would be made of such a step to the prejudice of your majesty's interests and affairs are obvious and endless."[ ] the king was much struck with these observations, urged with a boldness so unusual in the lord keeper. the other lords wondered, and the motion was dropped. the lord keeper, not without reason, boasted of this as the most brilliant passage of his life. when he came home at night, he broke out in exclamations--"what can be their meaning? are they all stark mad?" and before he went to bed, as a memorial of his exploit, he wrote in his almanack, opposite to the day of the month, "motion _cui solus obstiti_." by such an extraordinary exhibition of courage, to which he was driven by the instinct of self-preservation, he escaped the peril which jeffreys had planned for him, and he retained the great seal till the king's death. in the morning of monday, the d of february, , he was sent for to whitehall, by a messenger announcing that his majesty had had an apoplectic seizure. according to the ancient custom and supposed law when the sovereign is dangerously distempered, the privy council was immediately assembled; and the lord keeper examined the king's physicians.[ ] "their discourse ran upon indefinites--what they observed, their method intended, and success hoped. he said to them, _that these matters were little satisfactory to the council, unless they would declare, in the main, what they judged of the king's case; whether his majesty was like to recover or not_? but they would never be brought to that; _all lay in hopes_." with short intervals the council continued to sit day and night. after a time, the physicians came into the council chamber, smiling, and saying they had good news, for the king had a fever. _lord keeper._--"gentlemen, what do you mean? can any thing be worse?" _first physician._--"now we know what to do." _lord keeper._--"what is that?" _second physician._--"to give him the cortex." the exhibition of jesuits' bark was sanctioned by the council, but proved fatal, and being continued, while the poor king grew weaker and weaker, at the end of four days he expired. the lord keeper and the council were kept in ignorance of the fact that chiffinch (accustomed to be employed on royal errands of a different sort) had been sent for a roman catholic priest, to receive his confession and administer the sacraments to him, when he had declined the spiritual assistance of a bishop of the church of england. the council was still sitting when the news was brought that charles was no more. after a short interval, james, who, leaving the death-bed of his brother, had decently engaged in a devotional exercise in his own closet, entered the apartment in which the councillors were assembled, and all kneeling down, they saluted him as their sovereign. when he had seated himself in the chair of state, and delivered his declaration, which, with very gracious expressions, smacked of the arbitrary principles so soon acted upon, lord guilford surrendered the great seal into his hands, and again received it from him with the former title of lord keeper. james would, no doubt, have been much better pleased to have transferred it to jeffreys; but it was his policy, at the commencement of his reign, to make no change in the administration, and he desired all present to retain the several charges which they held under his deceased brother, assuring them that he earnestly wished to imitate the good and gracious sovereign whose loss they deplored. jeffreys, though continued a member of the cabinet, was probably a good deal disappointed, and he resolved to leave nothing undone to mortify the man who stood between him and his object, and to strike him down as soon as possible. the first question upon which james consulted the council was respecting the levying of the duties of customs and excise, which had been granted by parliament only during the life of the late king. the lord keeper intimating a clear conviction that parliament would continue the grant as from the demise of the crown, recommended a proclamation requiring that the duties should be collected and paid into the exchequer, and that the officers should keep the product separate from other revenues till the next session of parliament, in order to be disposed of as his majesty and the two houses should think fit. but the lord chief justice represented this advice as low and trimming, and he moved that "his majesty should cause his royal proclamation to issue, commanding all officers to collect, and the subjects to pay, these duties for his majesty's use, as part of the royal revenue." the lord keeper ventured humbly to ask his majesty to consider whether such a proclamation would be for his service, as it might give a handle to his majesty's enemies to say that his majesty, at the very entrance upon his government, levied money of the subject without the authority of parliament. the chief justice's advice was far more palatable. the proclamation which he recommended was therefore ordered to be drawn up, and was immediately issued. the lord keeper had the baseness to affix the great seal to this proclamation, thinking as he did of its expediency and legality. but rather than resign or be turned out of his office, he was ready to concur in any outrage on the constitution, or to submit to any personal indignity. a parliament was found indispensable; and, counting on the very loyal disposition manifested by the nation, writs for calling one were issued, returnable the th of may. as that day approached, the lord keeper began to write the speech which he expected to deliver in the presence of the king to the two houses on their assembling. he was much pleased with this performance, on which he had taken uncommon pains, and when finished, he read it to his brother and his officers, who highly applauded it. but what was his consternation when he was told that he was not to be allowed to open his mouth upon the occasion![ ] parliament meeting, the course was adopted which has been followed ever since. instead of having on the first day of the session, before the choice of a speaker by the commons, one speech from the king, and another from the lord chancellor or lord keeper, to explain the causes of the summons, the commons being sent for by the black rod, the lord keeper merely desired them to retire to their own chamber and choose a speaker, and to present him at an hour which was named, for his majesty's approbation. the speaker being chosen and approved of, and having demanded and obtained a recognition of the privileges of the commons, on the following day the king himself made a speech from the throne, and immediately withdrew. but this speech was not in modern fashion settled at the cabinet; nor was it read the evening before at the cockpit, or to the chief supporters of the government in both houses at the dinner-table of the two leaders respectively; nor was it to be treated as the speech of the minister. "at least the lord keeper had no hand in it; for he was not so much as consulted about either the matter or expressions the king intended to use, as one might well judge by the unguarded tenor of it." yet he still was mean enough to cling to office, and to do what he could for a government impatient to get rid of him. he had been very active in the elections; and by his influence had procured the return of a good many zealous church-and-king members. "and to make the attendance easy to these gentlemen, whose concerns were in the country, he took divers of them to rack and manger in his family, where they were entertained while the parliament sat." but nothing which he could do would mitigate the hostility of those who had vowed his destruction. at the meeting of parliament, jeffreys was made a peer, that he might have the better opportunity to thwart and insult the lord keeper; although there had been no previous instance of raising a common-law judge to the peerage. there were several appeals from decrees of the lord keeper speedily brought to a hearing. "jeffreys affected to let fly at them, to have it thought that he was fitter to be chancellor." he attended, neglecting all other business; and during the argument, and in giving his opinion, took every opportunity of disparaging the lord keeper's law, preparatory to moving reversals. he was particularly outrageous in the case of _howard_ v. _the duke of norfolk_, being emboldened to talk confidently on matters with which he was not much acquainted, by having to rest on the reputation of lord nottingham. that great equity lawyer, contrary to the opinion of the two chief justices and the chief baron, whom he had called in to assist him, had held that an equitable estate tail might be created in a term of years; but his successor had reversed his decree, and the decree of reversal was now under appeal. "lord chief justice jeffreys, by means of some encouragement he had met with, took upon him the part of slighting and insulting his lordship on all occasions that proffered. and here he had a rare opportunity; for, in his rude way of talking, and others of a party after him, he battered the poor decree; not without the most indecent affronts to his lordship that in such an assembly ever were heard." the courtesy now prevailing between law lords of opposite political parties was not then known between colleagues sitting in the same cabinet; and the poor lord keeper was assailed by the coarsest vituperation, and the most cutting ridicule. the second earl of nottingham, son of the chancellor, "who hated him because he had endeavored to detract from his father's memory," likewise took this opportunity to attack him, and got together many instances of his ill administration of justice, and greatly exposed him. he was not roused into retaliation or resistance; and he contented himself with a dry legal argument. the decree was reversed; and when he announced that the _contents had it_, he must have felt as if he had been sounding his own death knell. the lay lords who voted could have known nothing of the merits of such a nice question; and must have been guided by favor or enmity to the lord keeper or the lord chief justice. what rendered the defeat and contemptuous usage the more galling was the presence of the king; for james, like his brother, attended in the house of lords when any thing interesting was coming on; and walked about the house, or stood by the fire, or sat in his chair of state or on the woolsack, as suited his fancy. "having opened this scene," says roger, "we are not to expect other than opposition, contempt, and brutal usage, of that chief towards his lordship while he lived." there were few debates in the house of lords during this short session; but, even in going through the common forms of the house, jeffreys found opportunities publicly to testify his contempt for the lord keeper; and in the cabinet, in discussing the dispensation to be granted to catholic officers to serve in the army, and other subjects, he constantly laid traps for him, with a view of either making him obnoxious to the king, or odious to the public--who considered him the author of every declaration or dispensation which passed the great seal. sunderland and other members of the cabinet openly joined in this persecution, and "he was little less than derided by them. being soon to be laid aside, he was not relied upon in any thing, but was truly a seal-keeper rather than a minister of state, and kept on for despatch of the formularies, rather than for advice or trust." why did he not resign? it is difficult to understand the reasoning of his brother, who thus accounts for his continuing to bear such insults:--"his lordship was so ill used at court by the earl of sunderland, jeffreys, and their sub-sycophants, that i am persuaded if he had had less pride of heart, he had been tempted to have delivered up the seal in full health. but he cared not to gratify, by that, such disingenuous enemies. he cared not to humor these barkers, or to quit his place before he might do it with safety to his dignity. he intended to stay till the king would bear him no longer, and then make it his majesty's own act to remove him." he felt keenly a sense of the insignificance and disfavor into which he had fallen; and the anticipation of "the worse remaining behind," when he was to be finally kicked out, preyed upon his spirits. no longer was he ear-wigged by the lord cravens, who worship a favorite; no more did the foreign ambassadors bow low when they thought that he observed them: his levee was now deserted; he seemed to himself to discover a sneer on every countenance at whitehall; and he suspected that the bar, the officers of the court, and the bystanders in chancery, looked at him as if they were sure of his coming disgrace. to shade himself from observation, while he sat on the bench he held a large nosegay before his face. dreadfully dejected, he lost his appetite and his strength. he could not even get through the business of the court; and _remanets_ multiplying upon him kept him awake at night, or haunted him in his sleep. he drooped so much, that for some time he seemed quite heart-broken. at last, he had an attack of fever, which confined him to his bed. the coronation was approaching, and it was important that he should sit in the "court of claims." having recovered a little by the use of jesuits' bark, he presided there, though still extremely weak; and he walked at the coronation "as a ghost with the visage of death upon him, such a sunk and spiritless countenance he had." while he was in this wretched state, news arrived that the duke of monmouth had landed in the west of england and raised the standard of rebellion. the parliament, having come to a number of loyal votes, having attainted the duke, and granted a supply, was adjourned, that the members might assist in preserving tranquillity in their several districts. the lord keeper talked of resigning, and wrote a letter to the earl of rochester, to ask leave to go into the country for the recovery of his health, saying, "i have put myself into the hands of a doctor, who assures me of a speedy cure by entering into a course of physic." leave was given, and he proceeded to wroxton, in oxfordshire, the seat which belonged to him in right of his wife. here he languished while the battle of sedgemoor was fought--monmouth, after in vain trying to melt the heart of his obdurate uncle, was executed on tower hill under his parliamentary attainder, and the inhuman jeffreys, armed with civil and military authority, set out on his celebrated "campaign." roger north would make us believe that the dying guilford was horrified by the effusion of blood which was now _incarnardining_ the western counties by command of the lord general chief justice, and that he actually interposed to stay it:--"upon the news returned of his violent proceedings, his lordship saw the king would be a great sufferer thereby, and went directly to the king, and moved him to put a stop to the fury, which was in no respect for his service; but in many respects for the contrary. for though the executions were by law just, yet never were the deluded people all capitally punished; and it would be accounted a carnage and not law or justice; and thereupon orders went to mitigate the proceeding. i am sure of his lordship's intercession to the king on this occasion, being told it at the very time by himself." it is painful to doubt the supposed exertion of mercy and firmness by the lord keeper; but an attention to dates, of which this biographer is always so inconceivably negligent, shows the story to be impossible. jeffreys did not open his campaign by the slaughter of the lady lisle, at winchester, till the th of august, and he carried it on with increased cruelty till the very end of september. on the th of september died lord keeper guilford, at wroxton, after having been for some weeks in a state of such debility and exhaustion that, able only to attend to his spiritual concerns, he thought no more of domestic treason or foreign levy than if he had already slept in the grave. for a short time after his arrival there, he rallied, by the use of mineral waters, but he soon had a relapse, and he could with difficulty sign his will. he was peevish and fretful during his sickness, but calmly met his end. "he advised his friends not to mourn for him, yet commended an old maid-servant for her good will that said, '_as long as there is life there is hope_.' at length, having strove a little to rise, he said, '_it will not do_;' and then, with patience and resignation, lay down for good and all, and expired." he was buried in wroxton church, in a vault belonging to his wife's family, the earls of down. "he was a crafty and designing man," says bishop burnet. "he had no mind to part with the great seal, and yet he saw he could not hold it without an entire compliance with the pleasure of the court. nothing but his successor made him be remembered with regret. he had not the virtues of his predecessor; but he had parts far beyond him. they were turned to craft; so that whereas the former (lord nottingham) seemed to mean well even when he did ill, this man was believed to mean ill even when he did well." i accede to this character, with the exception of the estimate of north's "parts," which i think are greatly overrated. he was sharp and shrewd, but of no imagination, of no depth, of no grasp of intellect, any more than generosity of sentiment. cunning, industry, and opportunity may make such a man at any time. a nottingham does not arise above once in a century. guilford had as much law as he could contain, but he was incapable of taking an enlarged and commanding view of any subject. in equity, he did nothing to rear up the system of which the foundations had been so admirably laid by his predecessor. his industry was commendable; and i think he may be fairly acquitted of corruption, notwithstanding his indiscreet acceptance of a present of one thousand pounds from the six clerks, when they had a dispute with the sixty, on which he was to adjudicate. where he was not under the apprehension of personal responsibility, there was nothing which he would not say or do to exalt the prerogative and please his patrons. i shall add only one instance. sir thomas armstrong was outlawed for high treason while beyond the seas unless he surrendered within a year. being sent over a prisoner from holland within a year, he insisted that he was entitled to a writ of error to reverse the outlawry and to be admitted to make his defence; but the lord keeper refused him his writ of error, first, on the pretence that there was no fiat for it by the attorney general, and then, that he had no right to reverse his outlawry, as he was present by compulsion. thus the unhappy victim was sent to instant execution without trial. so zealous a conservative was guilford, that "he thought the taking away of the tenures" (_i. e._ the abolition of wardship and the other oppressive feudal burdens introduced at the conquest) "a desperate wound to the liberties of the people." the court wags made great sport of him, the earl of sunderland taking the lead, and giving out the signal, while jeffreys was always ready to join in the laugh. i may offer as an example "the story of the rhinoceros." my lord keeper went one day into the city, accompanied by his brother sir dudley, to see a rhinoceros of enormous size lately imported, and about to be exhibited as a show.[ ] next morning, at whitehall, a rumor was industriously spread that the lord keeper had been riding on the rhinoceros, "and soon after dinner some lords and others came to his lordship to know the truth from himself; for the setters of the lie affirmed it positively, as of their own knowledge. that did not give his lordship much disturbance, for he expected no better from his adversaries. but that his friends, intelligent persons, who must know him to be far from guilty of any childish levity, should believe it, was what _roiled_ him extremely, and much more when they had the face to come to him to know if it were true. so it passed; and the earl of sunderland, with jeffreys and others of that crew, never blushed at the lie of their own making, but valued themselves upon it as a very good jest." to try how far his compliance with the humors of the court would go, they next persuaded his own brother-in-law (that he might not suspect the hoax) to wait upon him, and in strict confidence, and with great seriousness, to advise him to keep a mistress, "otherwise he would lose all his interest with the king; for it was well understood that he was ill looked upon for want of doing so, because he seemed continually to reprehend them by not falling in with the general custom; and the messenger added, that if his lordship pleased he would help him to one." he declined the offer--with much politeness, however, lest he should give offence. but with his familiar friends "he made wonderfully merry with this state policy, especially the procuring part, and said, that if he were to entertain a madam, it would be one of his own choosing, and not one of their stale trumpery." although he never aimed at oratory, it is said that he meditated a "history of his own times." he might have transmitted to us many curious anecdotes, but the performance must have been without literary merit; for some of his notes which he had written as materials are in the most wretched style, and show that he was unacquainted with the first principles of english composition, and even with the common rules of grammar. he did publish two or three short tracts "on music" and other subjects, which were soon forgotten. he was well versed in music, conversed with sir peter lely about painting, speculated with natural philosophers on the use of the bladder of fishes, and learned several of the continental languages; but he seems never to have looked into a classical writer after he left college, and to have had the same taste for the _belles lettres_ as his brother roger, who, placing them all in the same category, talks with equal contempt of "departed quacks, _poets_, and almanack makers." although his two immediate predecessors were libelled and lauded by popular verses in the mouths of every one, i can find no allusion in any fine writer either of the court or country party to north; and it may be doubtful whether he knew anything of the works of butler, of dryden, of waller, or of cowley, beyond the snatches of them he may have heard repeated in the merry circle at whitehall. he lived very hospitably, receiving those who retailed the gossip of the day in his house in great queen street, lincoln's inn fields, then the fashionable quarter of the town for the great nobility as well as for eminent lawyers. the nobility and chief gentry coming to london frequently dined with him. the dinner was at a very early hour, and did not last long. "after a solemn service of tea in a withdrawing room, the company usually left him." he had a court room fitted up on the ground floor, which he then entered, and there he continued hearing causes and exceptions, sometimes to what was considered a late hour. about eight o'clock came supper, which he took with a few private friends, and relished as the most agreeable and refreshing meal of the day. in the vacations, when he could be spared from london, he retired to his seat at wroxton. for some years he likewise rented a villa at hammersmith, but this he gave up soon after his wife's death. he had the misfortune to lose her after they had been married only a few years. she seems to have been a very amiable person. she found out when her husband had any trouble upon his spirits, and she would say, "come, sir francis, (as she always styled him,) you shall not think; we must talk and be merry, and you shall not look on the fire as you do. i know something troubles you; and i will not have it so." he would never marry again, which in his last illness he repented, for "he fancied that in the night human heat was friendly." he was extremely amiable in all the relations of domestic life. nothing can be more touching than the account we have of the warm and steady affection subsisting between him and his brother, who survived to be his biographer. the lord keeper was a little but handsome man, and is said to have had "an ingenuous aspect." he left behind him francis, his son and heir, the second baron guilford, father of francis, the third baron guilford, on whom descended the barony of north, by failure of the elder branch of the family, and who, in , was created earl of guilford, and was the father of lord north, the prime minister, so celebrated for his polished oratory, his refined wit, and amiable manners.[ ] when we estimate what the lord keeper achieved, we should bear in mind that he died at _forty-eight_, an age considerably more advanced than that reached by his immediate successor; yet under that at which other lord chancellors and lord keepers began to look for promotion. he was in truth solicitor general at _thirty-four_, attorney general at _thirty-seven_, chief justice of the common pleas at _thirty-eight_, and lord keeper and a peer at _forty-five_. it is probably well for his memory that his career was not prolonged. he might have made a respectable judge when the constitution was settled; but he was wholly unfit for the times in which he lived. i ought not to conclude this memoir without acknowledging my obligations to "roger north's life of the lord keeper;" which, like "boswell's life of johnson," interests us highly, without giving us a very exalted notion of the author. notwithstanding its extravagant praise of the hero of the tale, its inaccuracies, and its want of method, it is a most valuable piece of biography, and with roger's lives of his brothers "dudley and john," and his "examen," ought to be studied by every one who wishes to understand the history and the manners of the reign of charles ii. chapter xiv. edmund saunders. there never was a more flagrant abuse of the prerogative of the crown than the appointment of a chief justice of the king's bench for the undisguised purpose of giving judgment for the destruction of the charters of the city of london, as a step to the establishment of despotism over the land. sir edmund saunders accomplished this task effectually, and would, without scruple or remorse, have given any other illegal judgment required of him by a corrupt government. yet i feel inclined to treat his failings with lenience, and those who become acquainted with his character are apt to have a lurking kindness for him. from the disadvantages of his birth and breeding, he had little moral discipline; and he not only showed wonderful talents, but very amiable social qualities. his rise was most extraordinary, and he may be considered as our _legal whittington_. "he was at first," says roger north, "no better than a poor beggar-boy, if not a parish foundling, without known parents or relations." there can be no doubt that, when a boy, he was discovered wandering about the streets of london in the most destitute condition--penniless, friendless, without having learned any trade, without having received any education. but although his parentage was unknown to the contemporaries with whom he lived when he had advanced himself in the world, recent inquiries have ascertained that he was born in the parish of barnwood, close by the city of gloucester; and his father, who was above the lowest rank of life, died when he was an infant, and that his mother took for her second husband a man of the name of gregory, to whom she bore several children. we know nothing more respecting him, with certainty, till he presented himself in the metropolis; and we are left to imagine that he might have been driven to roam abroad for subsistence, by reason of his mother's cottage being levelled to the ground during the siege of gloucester; or that, being hardly used by his step-father, he had run away, and had accompanied the broad-wheeled wagon to london, where he had heard that riches and plenty abounded. the little fugitive found shelter in clement's inn, where "he lived by obsequiousness, and courting the attorneys' clerks for scraps." he began as an errand boy, and his remarkable diligence and obliging disposition created a general interest in his favor. expressing an eager ambition to learn to write, one of the attorneys of the inn got a board knocked up at a window on the top of a staircase. this was his desk, and, sitting here, he not only learned the _running hand_ of the time, but _court hand_, _black letter_, and _engrossing_, and made himself "an expert entering clerk." in winter, while at work, he covered his shoulders with a blanket, tied hay bands round his legs, and made the blood circulate through his fingers by rubbing them when they grew stiff. his next step was to copy deeds and law papers, at so much a folio or page, by which he was enabled to procure for himself wholesome food and decent clothes. meanwhile he not only picked up a knowledge of norman french and law latin, but, by borrowing books, acquired a deep insight into the principles of conveyancing and special pleading. by and by the friends he had acquired enabled him to take a small chamber, to furnish it, and to begin business on his own account as a conveyancer and special pleader. but it was in the latter department that he took greatest delight and was the most skilful--insomuch that he gained the reputation of being familiarly acquainted with all its mysteries; and although the order of "special pleaders under the bar" was not established till many years after, he was much resorted to by attorneys who wished by a sham plea to get over the term, or by a subtle replication to take an undue advantage of the defendant. it has been untruly said of him, as of jeffreys, that he began to practise as a barrister without ever having been called to the bar. in truth, the attorneys who consulted him having observed to him that they should like to have his assistance to maintain in court the astute devices which he recommended, and which duller men did not comprehend, or were ashamed of, he rather unwillingly listened to their suggestion that he should be entered of an inn of court, for he never cared much for great profits or high offices; and having money enough to buy beer and tobacco, the only luxuries in which he wished to indulge, he would have preferred to continue the huggermugger life which he now led. he was domesticated in the family of a tailor in butcher row, near temple bar, and was supposed to be rather too intimate with the mistress of the house. however, without giving up his lodging here, to which he resolutely stuck till he was made lord chief justice of england, he was prevailed upon to enter as a member of the middle temple. accordingly, on the th of july, , he was admitted there by the description of "mr. edward saunders, of the county of the city of gloucester, gentleman." the omission to mention the name of his father might have given rise to the report that he was a foundling; but a statement of parentage on such occasions, though usual, was not absolutely required, as it now is. he henceforth attended "moots," and excited great admiration by his readiness in putting cases and taking of objections. by his extraordinary good humor and joviality, he likewise stood high in the favor of his brother templars. the term of study was then seven years, liable to be abridged on proof of proficiency; and the benchers of the middle temple had the discernment and the liberality to call saunders to the bar when his name had been on their books little more than four years. we have a striking proof of the rapidity with which he rushed into full business. he compiled reports of the decisions of the court of king's bench, beginning with michaelmas term, charles ii., a. d. , when he had only been two years at the bar. these he continued till easter term, charles ii., a. d. . they contain all the cases of the slightest importance which came before the court during that period; and he was counsel in every one of them. his "hold of business" appears the more wonderful when we consider that his _liaison_ with the tailor's wife was well known, and might have been expected to damage him even in those profligate times; and that he occasionally indulged to great excess in drinking, so that he must often have come into court very little acquainted with his "breviat," and must have trusted to his quickness in finding out the questions to be argued, and to his storehouses of learning for the apposite authorities. but when we peruse his "reports," the mystery is solved, there is no such treat for a common lawyer. lord mansfield called him the "terence of reporters," and he certainly supports the forensic dialogue with exquisite art, displaying infinite skill himself in the points which he makes, and the manner in which he defends them; doing ample justice at the same time to the ingenuity and learning of his antagonist. considering the barbarous dialect in which he wrote, (for the norman french was restored with charles ii.,) it is marvellous to observe what a clear, terse, and epigrammatic style he uses on the most abstruse juridical topics. he labored under the imputation of being fond of sharp practice, and he was several times rebuked by the court for being "_trop subtile_," or "going too near the wind;" but he was said by his admirers to be fond of his craft only _in meliori sensu_, or in the good sense of the word, and that, in entrapping the opposite party, he was actuated by a love of fun rather than a love of fraud. thus is he characterized, as a practitioner, by roger north:-- "wit and repartee in an affected rusticity were natural to him. he was ever ready, and never at a loss, and none came so near as he to be a match for serjeant maynard. his great dexterity was in the art of special pleading, and he would lay snares that often caught his superiors, who were not aware of his traps. and he was so fond of success for his clients that, rather than fail, he would set the court hard with a trick; for which he met sometimes with a reprimand, which he would wittily ward off, so that no one was much offended with him. but hale could not bear his irregularity of life; and for that, and suspicion of his tricks, used to bear hard upon him in the court. but no ill usage from the bench was too hard for his hold of business, being such as scarce any could do but himself." he did not, like scroggs and jeffreys, intrigue for advancement. he neither sought favor with the popular leaders in the city, nor tried to be introduced into chiffinch's "spie office" at whitehall. "in no time did he lean to faction, but did his business without offence to any. he put off officious talk of government and politics with jests, and so made his wit a catholicon or shield to cover all his weak places and infirmities." he was in the habit of laughing both at cavaliers and roundheads; and, though nothing of a puritan himself, the semi-popish high-churchmen were often the objects of his satire. his professional, or rather his special pleading, reputation forced on him the advancement which he did not covet. towards the end of the reign of charles ii., when the courts of justice were turned into instruments of tyranny, (or, as it was mildly said, "the court fell into a steady course of using the law against all kinds of offenders,") saunders had a general retainer from the crown, and was specially employed in drawing indictments against whigs, and _quo warrantos_ against whiggish corporations. in crown cases he really considered the king as his client, and was as eager to gain the day for him, by all sorts of manoeuvres, as he had ever been for a roguish clement's inn attorney. he it was that suggested the mode of proceeding against lord shaftesbury for high treason; on his recommendation the experiment was made of examining the witnesses before the grand jury in open court, and he suggested the subtlety that "the usual secresy observed being for the king's benefit, it might be waived by the king at his pleasure." when the important day arrived, he himself interrogated very artfully mr. blathwayt, the clerk of the council, who was called to produce the papers which had been seized at lord shaftesbury's house in aldersgate street, and gave a treasonable tinge to all that passed. the _ignoramus_ of his indictment must have been a heavy disappointment to him; but the effort which he made gave high satisfaction to the king, who knighted him on the occasion, and from that time looked forward to him as a worthy chief justice. upon the dissolution of the oxford parliament and the rout of the whig party, it being resolved to hang fitzharris, saunders argued with uncommon zeal against the prisoner's plea, that there was an impeachment depending for the same offence, and concluded his legal argument in a manner which seems to us very inconsistent with the calmness of a dry legal argument--"let him plead guilty or not guilty; i rather hope that he is not guilty than he is guilty; but if he be guilty, it is the most horrid, venomous treason ever spread abroad in any age, and for that reason your lordships will not give countenance to any delay." i find him several times retained as counsel against the crown; but upon these occasions the government wished for an acquittal. he defended the persons who were prosecuted for attempting to throw discredit on the popish plot, he was assigned as one of the counsel for lord viscount stafford, and he supported the application made by the earl of danby to be discharged out of custody. on this last occasion he got into a violent altercation with lord chief justice pemberton. the report says that "mr. saunders had hardly begun to speak when the lord chief justice pemberton did reprimand the said mr. saunders for having offered to impose upon the court. to all which mr. saunders replied, that he humbly begged his lordship's pardon, but he did believe that the rest of his brethren understood the matter as he did." the earl of danby supported this statement, and saunders had a complete triumph over the chief justice. pemberton was soon removed from the office of chief justice of the king's bench, and saunders sat in his place. in spite of the victory which the king had gained over the whigs at the dissolution of his last parliament, he found one obstacle remain to the perpetuation of his despotic sway in the franchises of the city of london. the citizens (among whom were then included all the great merchants and some of the nobility and gentry) were still empowered to elect their own magistrates; they were entitled to hold public meetings; and they could rely upon the pure administration of justice by impartial juries, should they be prosecuted by the government. the attorney and solicitor general, being consulted, acknowledged that it passed their skill to find a remedy; but a case being laid before saunders, he advised that something should be discovered which might be set up as a forfeiture of the city charters, and that a _quo warranto_ should be brought against the citizens, calling upon them to show by what authority they presumed to act as a corporation. nothing bearing the color even of irregularity could be suggested against them, except that, on the rebuilding and enlarging of the markets after the great fire, a by-law had been made, requiring those who exposed cattle and goods to contribute to the expense of the improvements by the payment of a small toll; and that the lord mayor, aldermen, and commonalty of the city had, in the year , presented a petition to the king lamenting the prorogation of parliament in the following terms: "your petitioners are greatly surprised at the late prorogation, whereby the prosecution of the public justice of the kingdom, and the making of necessary provisions for the preservation of your majesty and your protestant subjects, have received interruption." saunders allowed that these grounds of forfeiture were rather scanty, but undertook to make out the by-law to be the usurpation of a power to impose taxes without authority of parliament, and the petition a seditious interference with the just prerogative of the crown.[ ] accordingly, the _quo warranto_ was sued out, and, to the plea setting forth the charters under which the citizens of london exercised their privileges as a corporation, he drew an ingenious replication, averring that the citizens had forfeited their charters by usurping a power to impose taxes without authority of parliament, and by seditiously interfering with the just prerogative of the crown. the written pleadings ended in a demurrer, by which the sufficiency of the replication was referred, as a question of law, to the judgment of the court of king's bench. saunders was preparing himself to argue the case as counsel for the crown, when, to his utter astonishment, he received a letter from the lord keeper announcing his majesty's pleasure that he should be chief justice. he not only never had intrigued for the office, but his appointment to it had never entered his imagination; and he declared, probably with sincerity, that he would much sooner have remained at the bar, as he doubted whether he could continue to live with the tailor in butcher row, and he was afraid that all his favorite habits would be dislocated. this arrangement must have been suggested by cunning lawyers, who were distrustful of pemberton, and were sure that saunders might be relied upon. but roger north ascribed it to charles himself; not attempting, however, to disguise the corrupt motive for it. "the king," says he, "observing him to be of a free disposition, loyal, friendly, and without greediness or guile, thought of him to be chief justice of the king's bench _at that nice time_. and the ministry could not but approve of it. so great a weight was then at stake as could not be trusted to men of doubtful principles, or such as any thing might tempt to desert them." on the d of january, being the first day of hilary term, , sir edmund saunders appeared at the bar of the court of chancery, in obedience to a writ requiring him to take upon himself the degree of serjeant at law, and distributed the usual number of gold rings, of the accustomed weight and fineness, with the courtly motto, "_principi sic placuit_." he then had his coif put on, and proceeded to the bar of the common pleas, where he went through the form of pleading a sham cause as a serjeant. next he was marched to the bar of the king's bench, where he saw the lord keeper on the bench, who made him a flowery oration, pretending "that sir francis pemberton, at his own request, had been allowed to resign the office of chief justice of that court, and that his majesty, looking only to the good of his subjects, had selected as a successor him who was allowed to be the fittest, not only for learning, but for every other qualification." the new chief justice, who often expressed a sincere dislike of _palaver_, contented himself with repeating the motto on his rings, "_principi sic placuit_;" and having taken the oaths, was placed on the bench, and at once began the business of the court. in a few days afterwards came on to be argued the great case of _the king_ v. _the mayor and commonalty of the city of london_. fitch, the solicitor general, appeared for the crown; and treby, the recorder of london, for the defendants. the former was heard very favorably; but the latter having contended that, even if the by-law and the petition were illegal, they must be considered only as the acts of the individuals who had concurred in them, and could not affect the privileges of the body corporate,--an _ens legis_, without a soul, and without the capacity of sinning,--lord chief justice saunders exclaimed,-- "according to your notion, never was one corporate act done by them; certainly, whatsoever the common council does, binds the whole; otherwise it is impossible for you to do any corporate act; for you never do, and never can, convene all the citizens. then you say your petition is no reflection on the king, but it says that by the prorogation public justice was interrupted. if so, by whom was public justice interrupted? why, by the king! and is it no reflection on the king that, instead of distributing justice to his people, he prevents them from obtaining justice? you must allow that the accusation is either true or false. but, supposing it true that the king did amiss in prorogating the parliament, the common council of london, neither by charter nor prescription, had any right to control him. if the matter were not true, (as it is not,) the petition is a mere calumny. but if you could justify the presenting of the petition, how can you justify the printing of it, whereby the mayor, aldermen, and citizens of london do let all the nation know that the king, by the prorogation of parliament, hath given the public justice of the nation an interruption? pray, by what law, or custom, or charter, is this privilege of censure exercised? you stand forth as 'chartered libertines.' as for the _impeccability_ of the corporation, and your doctrine that nothing which it does can affect its being, strange would be the result if that which the corporation does is not the act of the corporation, and if, the act being unlawful and wicked, the corporation shall be dispunishable. i tell you, i deliver no opinion now; i only mention some points worthy of consideration. let the case be argued again next term." in the ensuing term the case was again argued by sawyer, the attorney general, for the crown, and pollexfen for the city, when lord chief justice saunders said, "we shall take time to be advised of our opinion, but i cannot help now saying what a grievous thing it would be if a corporation cannot be forfeited or dissolved for any crime whatsoever. then it is plain that you oust the king of his _quo warranto_, and that, as many corporations as there are, so many independent commonwealths are established in england. we shall look into the precedents, and give judgment next term." when next term arrived, the lord chief justice saunders was on his death-bed. his course of life was so different from what it had been, and his diet and exercise so changed, that the constitution of his body could not sustain it, and he fell into an apoplexy and palsy from which he never recovered. but before his illness he had secured the votes of his brethren. the judgment of the court was pronounced by mr. justice jones,[ ] the senior puisne judge, who said,-- "several times have we met and had conference about this matter, and we have waited on my lord saunders during his sickness often; and upon deliberation, we are unanimously of opinion that a corporation aggregate, such as the city of london, may be forfeited and seized into the king's hands, on a breach of the trust reposed in it for the good government of the king's subjects; that to assume the power of making bylaws to levy money is a just cause of forfeiture; and that the petition in the pleadings mentioned is so scandalous to the king and his government that it is a just cause of forfeiture. therefore, this court doth award that the liberties and franchises of the city of london be seized into the king's hand." this judgment was considered a prodigious triumph, but it led directly to the misgovernment which in little more than five years brought about the revolution and the establishment of a new dynasty. to guard against similar attempts in all time to come, the charters, liberties, and customs of the city of london were then confirmed, and for ever established, by act of parliament. saunders was chief justice so short a time, and this was so completely occupied with the great _quo warranto_ case, that i have little more to say of him as a judge. we are told that "while he sat in the court of king's bench he gave the rule to the general satisfaction of the lawyers." we have the account of only one trial before him at _nisi prius_, that of _pilkington, lord grey de werke, and others_, for a riot. before the city of london was taken by a regular siege, an attempt had been made upon it by a _coup de main_. the scheme was to prevent the regular election of sheriffs, and to force upon the city the two court candidates, who had only a small minority of electors in their favor. in spite of violence used on their behalf, the poll was going in favor of the liberal candidates, when the lord mayor, who had been gained over by the government, pretended to adjourn the election to a future day. the existing sheriffs, who were the proper officers to preside, continued the poll, and declared the liberal candidates duly elected. nevertheless, the court candidates were sworn in as sheriffs, and those who had insisted on continuing the election after the pretended adjournment by the lord mayor were prosecuted for a riot.[ ] they pleaded not guilty, and a jury to try them having been summoned by the new sheriffs, the trial came on at guildhall before lord chief justice saunders. he was then much enfeebled in health, and the excitement produced by it was supposed to have been the cause of the fatal malady by which he was struck a few days after. the jury being called, the counsel for the defendants put in _a challenge to the array_, on the ground that the supposed sheriffs, by whom the jury had been returned, were not the lawful sheriffs of the city of london, and had an interest in the question. _l. c. j. saunders._--"gentlemen, i am sorry you should have so bad an opinion of me, and think me so little of a lawyer, as not to know that this is but trifling, and has nothing in it. pray, gentlemen, do not put these things upon me." _mr. thompson._--"i desire it may be read, my lord." _l. c. j. saunders._--"you would not have done this before another judge; you would not have done it if sir matthew hale had been here. there is no law in it." _mr. thompson._--"we desire it may be read." _l. c. j. saunders._--"this is only to tickle the people." the challenge, however, was read. _jeffreys._--"here is a tale of a tub indeed!" _l. c. j. saunders._--"ay, it is nothing else, and i wonder that lawyers should put such a thing upon me." _mr. thompson._--"my lord, we desire this challenge should be allowed." _l. c. j. saunders._--"no, indeed, won't i. there is no color for it." _mr. thompson._--"my lord, is the fact true or false? if it be insufficient in point of law, let them demur." _jeffreys._--"'robin hood on greendale stood'!!! i pray for the king that it may be overruled." _mr. thompson._--"my lord, i say where a sheriff is interested in point of title, he is no person in law to return a jury. the very title to the office is here in question." _l. c. j. saunders._--"mr. thompson, methinks you have found out an invention, that the king should never have power to try it even so long as the world stands. who would you have the process go to?" _mr. thompson._--"to the coroner." _l. c. j. saunders._--"my speech is but bad; let me know what objection is made, and if i can but retain it in my memory, i don't question but to give you satisfaction. the sheriffs who returned the jury are sheriffs _de facto_, and their title cannot thus be inquired into. wherever the defendant thinks it may go hard with him, are we to have a trial whether the sheriffs be sheriffs or no? what you are doing may be done in every cause that may be trying." _mr. thompson._--"my lord, we pray a bill of exceptions." _jeffreys._--"this discourse is only for discourse sake. swear the jury." _l. c. j. saunders._--"ay, swear the jury." so far, he was right in point of law; but, when the trial proceeded upon the merits, to suit the purposes of the government and to obtain a conviction he laid down doctrines which he must well have known to be indefensible respecting the power of the lord mayor to interrupt the poll by an adjournment, and the supposed offence of the electors in still continuing the election, they believing that they were exercising a lawful franchise. finally, in summing up to the jury, he observed,-- "but they pretend that the sheriffs were the men, and that the lord mayor was nobody; that shows that it was somewhat of the commonwealth seed that was like to grow up among the good corn." [here the report says, _the people hummed and interrupted my lord_. he thus continued.] "pray, gentlemen, that is a very indecent thing; you put an indignity upon the king. pray, gentlemen, forbear; such demeanor does not become a court of justice. when things were topsy turvy i can't tell what was done, and i would be loth to have it raked up now. these defendants tell you that they believed they were acting according to law; but ignorance of the law is now no excuse, and you will consider whether they did not in a tumultuary way make a riot to set up a magistracy by the power of the people? gentlemen, it hath been a long trial, and it may be i have not taken it well; my memory is bad, and i am but weak. i don't question but your memories are better than mine. consider your verdict, and find as many guilty as you think fit." the jury having been carefully packed, the defendants were all found guilty, and they were heavily fined; but after the revolution this judgment was reversed by the legislature. during lord chief justice saunders's last illness, the ryehouse plot was discovered, and it was a heavy disappointment to the government that no further aid could be expected from him in the measures still contemplated for cutting off the whig leaders and depressing the whig party. his hopeless condition being ascertained, he was deserted and neglected by all his whitehall patrons, who had lately been so attentive to him, and he received kindness only from humble dependents and some young lawyers, who, notwithstanding all his faults, had been attached to him from his singular good humor. a few minutes after ten o'clock in the forenoon of tuesday, the th of june, , he expired in a house at parson's green, to which he had unwillingly transferred himself from butcher row when promoted to be chief justice. his exact age was not known, but he was not supposed to be much turned of fifty, although a stranger who saw him for the first time would have taken him to be considerably more advanced in life. of his appearance, his manners, and his habits, we have, from one who knew him intimately, the following graphic account, which it would be a sin to abridge or to alter,-- "as to his person, he was very corpulent and beastly--a mere lump of morbid flesh. he used to say, 'by his _troggs_, (such a humorous way of talking he affected,) none could say he wanted issue of his body, for he had nine in his back.' he was a fetid mass that offended his neighbors at the bar in the sharpest degree. those whose ill fortune it was to stand near him were confessors, and in summer time almost martyrs. this hateful decay of his carcass came upon him by continual sottishness; for, to say nothing of brandy, he was seldom without a pot of ale at his nose or near him. that exercise was all he used; the rest of his life was sitting at his desk or piping at home; and that _home_ was a tailor's house, in butcher row, called his lodging, and the man's wife was his nurse or worse; but by virtue of his money, of which he made little account, though he got a great deal, he soon became master of the family; and being no changeling, he never removed, but was true to his friends and they to him to the last hour of his life. with all this, he had a goodness of nature and disposition in so great a degree that he may be deservedly styled a _philanthrope_. he was a very silenus to the boys, as in this place i may term the students of the law, to make them merry whenever they had a mind to it. he had nothing of rigid or austere in him. if any near him at the bar grumbled at his stench, he ever converted the complaint into content and laughing with the abundance of his wit. as to his ordinary dealing, he was as honest as the driven snow was white; and why not, having no regard for money or desire to be rich? and for good nature and condescension, there was not his fellow. i have seen him, for hours and half hours together, before the court sat, stand at the bar, with an audience of students over against him, putting of cases, and debating so as suited their capacities and encouraged their industry. and so in the temple, he seldom moved without a parcel of youths hanging about him, and he merry and jesting with them. once, after he was in the king's business, he dined with the lord keeper, and there he showed another qualification he had acquired, and that was to play jigs upon a harpsichord, having taught himself with the opportunity of an old virginal of his landlady's; but in such a manner, not for defect but figure, as to see him was a jest." his reports are entertaining as well as instructive.[ ] notwithstanding his carelessness about money, he left considerable property behind him. chapter xv. george jeffreys.[ ] george jeffreys was a younger son of john jeffreys, esq., of acton, near wrexham, in denbighshire, a gentleman of a respectable welsh family, and of small fortune. his mother was a daughter of sir thomas ireland, knight, of the county palatine of lancaster. never was child so unlike parents; for they were both quiet, sedate, thrifty, unambitious persons, who aspired not higher than to be well reputed in the parish in which they lived, and decently to rear their numerous offspring. some imputed to the father a niggardly and covetous disposition; but he appears only to have exercised a becoming economy, and to have lived at home with his consort in peace and happiness till he was made more anxious than pleased by the irregular advancement of his boy george. it is said that he had an early presentiment that this son would come to a violent end; and was particularly desirous that he should be brought up to some steady trade, in which he might be secured from temptation and peril. he was born in his father's lowly dwelling at acton in the year . he showed, from early infancy, the lively parts, the active temperament, the outward good humor, and the overbearing disposition which distinguished him through life. he acquired an ascendancy among his companions in his native village by coaxing some and intimidating others, and making those most opposed to each other believe that he favored both. at marbles and leap-frog he was known to take undue advantages; and nevertheless, he contrived, notwithstanding secret murmurs, to be acknowledged as "master of the revels." while still young, he was put to the free school at the town of shrewsbury, which was then considered a sort of metropolis for north wales. here he continued for two or three years; but we have no account how he demeaned himself. at the end of this time his father, though resolved to bind him apprentice to a shopkeeper in wales, sent him for a short time to st. paul's school, in the city of london. the sight of the metropolis had a most extraordinary effect upon the mind of this ardent youth, and exceedingly disgusted him with the notion of returning into denbighshire, to pass his life in a small provincial town as a mercer. on the first sunday in every term he saw the judges and the serjeants come in grand procession to st. paul's cathedral, and afterwards go to dine with the lord mayor--appearing little inferior to this great sovereign of the city in power and splendor. he heard that some of them had been poor boys like himself, who had pushed themselves on without fortune or friends; and though he was not so presumptuous as to hope, like another whittington, to rise to be lord mayor, he was resolved that he would be lord chief justice or lord chancellor. now it was that he acquired whatever scholarship he ever possessed. jeffreys applied with considerable diligence to greek and latin, though occasionally flogged for idleness and insolence. he at last ventured to disclose his scheme of becoming a great lawyer to his father, who violently opposed it, as wild and romantic and impossible, and who inwardly dreaded that, from involving him in want and distress, it might lead to some fatal catastrophe. he wrote back to his son, pointing out the inability of the family to give him a university education, or to maintain him at the inns of court till he should have a chance of getting into practice--his utter want of connections in london, and the hopelessness of his entering into a contest in an overstocked profession with so many who had the advantage of superior education, wealth, and patronage. although the aspirant professed himself unconvinced by these arguments, and still tried to show the certainty of his success at the bar, he must have stood a crop-eared apprentice behind a counter in denbigh, ruthyn, or flint, if it had not been for his maternal grandmother, who was pleased to see the blood of the irelands break out, and who, having a small jointure, offered to contribute a part of it for his support. the university was still beyond their means; but it was thought this might be better dispensed with if he should be for some time at one of the great schools of royal foundation, where he might form acquaintances afterwards to be useful to him. the father reluctantly consented, in the hope that his son would soon return to his sober senses, and that the project would be abandoned with the general concurrence of the family. meanwhile young george was transferred to westminster school, then under the rule of the celebrated busby. there is reason to fear that the zeal for improvement which he had exhibited at st. paul's soon left him, and that he here began to acquire those habits of intemperance which afterwards proved so fatal to him. his father hearing of these had all his fears revived, and when the boy was at acton during the holidays, again tried in vain to induce him to become a tradesman. but finding all dissuasions unavailing, the old gentleman withdrew his opposition, giving him a gentle pat on the back, accompanied by these words--"ah, george, george, i fear thou wilt die with thy shoes and stockings on!" yet the wayward youth, while at westminster, had fits of application, and carried away from thence a sufficient stock of learning to prevent him from appearing in after-life grossly deficient when any question of grammar arose. he was fond of reminding the world of the great master under whom he had studied. his confidence in his own powers was so great, that, without conforming to ordinary rules, he expected to overcome every obstacle. being now in the neighborhood of westminster hall, his ambition to be a great lawyer was inflamed by seeing the grand processions on the first day of term, and by occasionally peeping into the courts when an important trial was going forward. when he was actually lord chancellor, he used to relate that, while a boy at westminster school, he had a dream, in which a gipsy read his fortune, foretelling "that he should be the chief scholar there, and should afterwards enrich himself by study and industry, and that he should come to be the second man in the kingdom, but in conclusion should fall into disgrace and misery." he was now sixteen, an age after which it was not usual to remain at school in those days. a family council was called at acton, and as george still sanguinely adhered to the law, it was settled that, the university being quite beyond their reach, he should immediately be entered at an inn of court; that, to support him there, his grandmother should allow him forty pounds a year, and that his father should add ten pounds a year for decent clothing. on the th of may, , to his great joy, he was admitted a member of the inner temple. he got a small and gloomy chamber, in which, with much energy, he began his legal studies. he not only had a natural boldness of eloquence, but an excellent head for law. with steadiness of application he would have greatly excelled lord keeper guilford, and in the mastery of this science would have rivalled lord hale and lord nottingham. but he could not long resist the temptations of bad company. having laid in a very slender stock for a counsel or a judge, he forsook littleton and plowden, "moots and readings," for the tavern, where was his chief delight. he seems to have escaped the ruinous and irreclaimable vice of gaming, but to have fallen into all others to which reckless templars were prone. nevertheless, he had ever a keen eye to his own interest; and in these scenes of dissipation he assiduously cultivated the acquaintance of young attorneys and their clerks, who might afterwards be useful to him. when they met over a bowl of punch at the devil tavern, or some worse place, he charmed them with songs and jokes, and took care to bring out before them, opportunely, any scrap of law which he had picked up, to impress them with the notion that, when he put on his gown and applied to business, he should be able to win all the causes in which he might be retained. he was exceedingly popular, and he had many invitations to dinner; which, to make his way in the world, he thought it better to accept than to waste his time over the midnight oil in acquiring knowledge which it might never be known that he possessed. after the first fervor of loyalty which burst out at the restoration had passed away, a malcontent party was formed, which gradually gained strength. in this, most of the aspiring young lawyers, not actually employed by the government, were ranged--finding it politic to begin in "the sedition line," that their value might be better appreciated by the court, and a better price might be bid for them. from such reasoning, or perhaps from accidental circumstances, jeffreys associated himself with the popular leaders, and in the hour of revelry would drink on his knees any toasts to "the good old cause," and to "the immortal memory of old noll." he was often put to great shifts from the embarrassed state of his finances, the ten pounds for "decent clothing" for a year being expended in a single suit of cut velvet, and his grandmother's forty pounds being insufficient to pay his tavern bills. but he displayed much address in obtaining prolonged and increased credit from his tradesmen. he borrowed adroitly; and it is said that such an impression was made by his opening talents, that several wealthy men on the popular side voluntarily made him presents of money, in the hope of the important services they were speedily to receive from his support. it is very much to be regretted that we have not from a roger north more minute information with respect to the manner in which his character was formed, and his abilities were cultivated. he seems to have been a most precocious young man. while still in his twentieth year, he was not only familiarly acquainted with the town, and completely a man of the world, exciting confident expectations of great future eminence, but he was already received among veteran statesmen as a member of an important party in the state, consulted as to their movements, and regarded as their future leader. after keeping all his terms, and doing all his exercises, he was regularly called to the bar on the d day of november, --having been on the books of the society five years and six months--the requisite period of probation having been previously, by a general regulation, reduced from seven to the present period of five years. although he does not ever appear to have been chosen "reader" or "treasurer" of the society, yet in the year , on being elected recorder of london, he was made a bencher, and he continued to be so till he took the coif, when he necessarily left it for serjeants' inn. during his early career he was involved in difficulties, which could only have been overcome by uncommon energy. pressed by creditors, and at a loss to provide for the day that was passing over him, he had burdened himself with the expenses of a family. but this arose out of a speculation, which, in the first instance, was very prudent. being a handsome young fellow, and capable of making himself acceptable to modest women, notwithstanding the bad company which he kept, he resolved to repair his fortunes by marrying an heiress; and he fixed upon the daughter of a country gentleman of large possessions, who, on account of his agreeable qualities, had invited him to his house. the daughter, still very young, was cautiously guarded, and almost always confined to her chamber; but jeffreys contrived to make a confidant and friend of a poor relation of hers, who was the daughter of a country parson, and lived with her as a companion. through this agency he had established a correspondence with the heiress, and an interest in her affections, so that on his last visit she had agreed, if her father's consent could not be obtained, to elope with him. what was his disappointment, soon after his return to his dismal chamber in the inner temple, which he had hoped soon to exchange for a sumptuous manor-house, to receive a letter from the _companion_, informing him "that his correspondence with the _heiress_ had been discovered by the old father, who was in such a rage, that locking up her cousin, he had instantly turned herself out of doors, and that having taken shelter in the house of an acquaintance in holborn, she was there in a state of great destitution and distraction, afraid to return to her father, or to inform him of what had happened." the conduct of jeffreys on this occasion may be truly considered the brightest passage in his history. he went to her, found her in tears, and considering that he had been the means of ruining her prospects in life, (to say nothing of her being much handsomer than her rich cousin,) he offered her his hand. she consented. her father, notwithstanding the character and circumstances of his proposed son-in-law, out of regard to his daughter's reputation, sanctioned their union, and to the surprise of all parties, gave her a fortune of three hundred pounds. she made an excellent wife, and i do not find any complaint of his having used her ill till near the time of her death, a few years after, when he had cast his affections upon the lady who became the second mrs. jeffreys. meanwhile he left her at her father's, occasionally visiting her; and he continued to carry on his former pursuits, and to strengthen his connections in london, with a view to his success at the bar, on which he resolutely calculated with unabated confidence. he was not disappointed. never had a young lawyer risen so rapidly into practice. but he cut out a new line for himself. instead of attending in westminster hall to take notes in law french of the long-winded arguments of serjeants and eminent counsel, where he would have had little chance of employment, he did not go near any of the superior courts for some years, but confined himself to the old bailey, the london sessions, and hicks's hall. there he was soon "the cock of the walk." some of his pot companions were now of great use to him in bringing him briefs, and recommending him to business. all this pushing would have been of little avail if he had not fully equalled expectation by the forensic abilities which he displayed. he had a very sweet and powerful voice, having something in its tone which immediately fixed the attention, so that his audience always were compelled to listen to him, irrespective of what he said. "he was of bold aspect, and cared not for the countenance of any man." he was extremely voluble, but always perspicuous and forcible, making use of idiomatic, and familiar, and colloquial, and sometimes of coarse language. he never spared any assertion that was likely to serve his client. he could get up a point of law so as to argue it with great ability, and with the justices, as well as with juries, his influence was unbounded. he was particularly famous for his talent in cross-examination, indulging in ribaldry and banter to a degree which would not now be permitted. the audience being ever ready to take part with the persecuted witness, the laugh was sometimes turned against him. it is related that, about this time, beginning to cross-examine a witness in _a leathern doublet_, who had made out a complete case against his client, he bawled forth--"you fellow in the leathern doublet, pray what have you for swearing?" the man looked steadily at him, and "truly, sir," said he, "if you have no more for lying than i have for swearing, you might wear a leathern doublet as well as i." this blunt reply got to the west end of the town, and was remembered among the courtiers against jeffreys when he grew to be a great man. while a trial was going on, he was devotedly earnest in it; but when it was over, he would recklessly get drunk, as if he never were to have another to conduct. coming so much in contact with the aldermen, he ingratiated himself with them very much, and he was particularly patronized by a namesake (though no relation) of his own--jeffreys, alderman of bread street ward, who was very wealthy, a great smoker, (an accomplishment in which the lawyer could rival him, as well as in drinking,) and who had immense influence with the livery. pushed by him, or rising rapidly by his own buoyancy, our hero, before he had been two years and a half at the bar, and while only twenty-three years of age, was elected common serjeant of the city of london--an office which has raised a denman as well as a jeffreys to be chief justice of england. this first step of his elevation he obtained on the th of march, . but his ambition was only inflamed by this promotion, which disqualified him for a considerable part of his bar practice, and he resolved entirely to change the field of his operations, making a dash at westminster hall. he knew well that he could not be employed to draw declarations and pleas, or to argue demurrers or special verdicts; but he hoped his talent for examining witnesses and for speaking might avail him. at any rate, this was the only road to high distinction in his profession, and he spurned the idea of spending his life in trying petty larcenies, and dining with the city companies. hard drinking was again his grand resource. he could now afford to invite the great city attorneys to his house as well as carouse with them at taverns, and they were pleased with the attentions of a rising barrister as well as charmed with the pleasantry of the most jovial of companions. he likewise began to cultivate fashionable society, and to consider how he might contrive to get an introduction at court. "he put himself into all companies, for which he was qualified by using himself to drink hard." now was the time when men got forward in life by showing their hatred of puritanism, their devotion to church and king, and an affectation of vice, even if actually free from it. yet such was the versatility of jeffreys, that for the nonce he could appear sanctimonious, and even puritanical. thus he deceived the religious, the moral, the immaculate sir matthew hale, then chief justice of the king's bench. roger north, in drawing the character of this extraordinary man, says,--"although he was very grave in his own person, he loved the most bizarre and irregular wits in the practice of the law before him most extravagantly. so sir george jeffreys gained as great an ascendant in practice over him as ever counsel had over a judge." as a king's bench practitioner, jeffreys was first employed at nisi prius in actions for assaults and defamation; but before long the city attorneys gave him briefs in commercial causes tried at guildhall, and though in _banc_ he could not well stand up against regularly-bred lawyers, like sir francis north, sir william jones, sir creswell levinz, and heneage finch, the son of the lord chancellor nottingham, he was generally equal to them before a jury, and he rapidly trod upon their heels. he anxiously asked himself how he was to climb to high office. he had started with the disaffected party, and they had been of essential use to him; but though they were growing in strength, no chance existed of their being able to make attorney generals, chief justices, or chancellors. at the same time he did not like yet to break with those who might still serve him--particularly in obtaining the recordership, which he coveted as a stepping stone to something better. he resolved so to manage as to be a favorite of both parties till he could devote himself entirely, and exclusively, and openly to the one which should be dominant; and he again succeeded. from his well-known influence in the city he found no difficulty in making the acquaintance of will chiffinch, "the trusty page of the back stairs," who, besides other employments of a still more confidential nature, was intrusted by charles ii. to get at the secrets of all men of any consequence in every department of life. "this mr. chiffinch," says roger north, "was a true secretary as well as page, for he had a lodging at the back stairs, which might have been properly termed 'the spy office,' where the king spoke with particular persons about intrigues of all kinds; and all little informers, projectors, &c., were carried to chiffinch's lodging. he was a most impetuous drinker, and in that capacity an admirable spy; for he let none part with him sober, if it were possible to get them drunk, and his great artifice was pushing idolatrous healths of his good master, and being always in haste; _for the king is coming_; which was his word. being an hercules well breathed at the sport himself, he commonly had the better, and so fished out many secrets, and discovered men's characters, which the king could never have obtained the knowledge of by any other means. it is likely that jeffreys, being a pretender to main feats with the citizens, might forward himself, and be entertained by will chiffinch, and that which at first was mere spying turn to acquaintance, if not friendship, such as is apt to grow up between immense drinkers, and from thence might spring recommendations of him to the king, as the most useful man that could be found to serve his majesty in london." thus, while mr. common serjeant was caballing in the city with lord shaftesbury, who had established himself in aldersgate street, and talked of becoming lord mayor, he had secretly got a footing at court, and by assurances of future services disposed the government to assist him in all his jobs. his opposition friends were a little startled by hearing that he had been made solicitor to the duke of york; but he assured them that this was merely a professional employment, unconnected with politics, which, according to professional etiquette, he could not decline; and when he was knighted as a mark of royal favor, with which he was silly enough to be much tickled, he said that he was obliged reluctantly to submit to the degradation as a consequence of his employment. by some mischance, which is not explained, he missed the office of recorder on the vacancy occasioned by the resignation of sir john howel, who so outraged public decency on the trial of penn and mead; but sir william dolbein, the successful candidate, being made a judge on the d of october, , jeffreys was then elected his successor. upon this occasion there were three other candidates; but he was so warmly supported by both parties in politics, that they all withdrew before the day of nomination, and he is said in the city records to have been "freely and unanimously elected." the new recorder had hardly been sworn in, when feeling that the liberals could do nothing more for him, he utterly cast them off, becoming for the rest of his life the open, avowed, unblushing slave of the court, and the bitter, persecuting, and unappeasable enemy of the principles he had before supported, and of the men he had professed to love. he entirely forsook thanet house, in aldersgate street, and all the meetings of the whigs in the city; and instead of secret interviews with will chiffinch in the "spy office," he went openly to court, and with his usual address, he contrived, by constant assiduities and flatteries, to gain the good graces both of nell gwyn and of the duchess of portsmouth, who, since the fall of lady castlemaine, held divided empire at whitehall, balancing the roman catholic and protestant parties. to each of these ladies, it would appear from the libels of the day, his rise was attributed. however, not long after he had openly ratted, an accident happened that had like to have spoiled all his projects; and that was the breaking out of the popish plot. although there is no reasonable ground for saying that it was contrived by shaftesbury, he made such skilful and unscrupulous use of it, that suddenly, from appearing the leader of a small, declining, and despairing party, he had the city and the nation at his beck, and with a majority in both houses of parliament, there seemed every probability that he would soon force himself upon the king, and have at his disposal all the patronage of the government. jeffreys was for some time much disconcerted, and thought that once in his life he had made a false move. he was utterly at a loss how to conduct himself, and his craft never was put to so severe a trial. being called into council, he recommended that the government should profess to credit the plot, and should outvie the other side in zeal for the protestant religion, but should contrive to make shaftesbury answerable for the reality of the conspiracy; so that, if hereafter it should blow up, or the people should get tired of it, all that was done to punish the supposed authors of it might be laid to his account. he immediately began diligently to work the popish plot according to his own scheme. coleman, whitbread, ireland, and all whom oates and bedloe accused being committed to prison, it was resolved to prosecute them for high treason in having compassed the death of the king, as well as the overthrow of the protestant religion; and their trials were conducted by the government as state trials, partly at the bar of the court of king's bench, and partly at the old bailey. in the former jeffreys acted as a counsel, in the latter as a judge. it is asserted, and not improbably, that he had a real horror of popery, which, though he could control it in the presence of the duke of york, and when his interest required, at other times burst out with sincerity as well as fierceness. scroggs presided at the old bailey, but jeffreys whetted his fury by telling him that the king was a thorough believer in the plot, and by echoing his expressions; as, when the chief justice said to the jury, "you have done like honest men," he exclaimed in a stage whisper, "they have done like honest men." as mouthpiece of the lord mayor, the head of the commission, after conviction he had the pleasing duty of passing sentence of death by the protracted tortures which the law of treason prescribed. he had a still greater treat in passing the like sentence on richard langhorne, an eminent catholic barrister, with whom he had been familiarly acquainted. he first addressed generally the whole batch of the prisoners convicted, whom he thus continues to upbraid for trying to root out "the best of religions:" "i call it the best of religions, even for your sakes; for had it not been for the sake of our religion, that teaches us not to make such requitals as yours seems to teach you, you had not had this fair, formal trial, but murder would have been returned to you for the murder you intended to commit both upon the king and most of his people. what a strange sort of religion is that whose doctrine seems to allow them to be the greatest saints in another world who have been the most impudent sinners in this! murder and the blackest of crimes were the best means among you to get a man to be canonized a saint hereafter." then he comes to his brother lawyer--"there is one gentleman that stands at the bar whom i am very sorry to see, with all my heart, in this condition, because of some acquaintance i have had with him heretofore. to see that a man who hath understanding in the law, and who hath arrived at so great an eminency in that profession as this gentleman hath done, should not remember that it is not only against the rules of christianity, but even against the rules of his profession, to attempt any injury against the person of the king! he knows it is against all the rules of law to endeavor to introduce a foreign power into this land. so that you have sinned both against your conscience and your own certain knowledge." last of all, he offers his friend the assistance of a protestant divine to prepare him for a speedy departure, and, referring him to the statute whereby the ministration of a catholic priest is made illegal, he himself, though "a layman," gives him some "pious advice." he had carried the sympathies of his audience along with him, for, when he had concluded with the "quartering," he was greeted with a loud shout of applause. thus, by the powerful assistance of the recorder, did the government obtain popularity for prosecuting the plot, till the people at last actually did get tired of it, and shaftesbury was prevented from deriving any fruit from it beyond the precarious tenure, for a few months, of his office of president of the council. the recorder was equally zealous, on all other occasions, to do what he thought would be agreeable at court. with the view of repressing public discussion, he laid down for law, as he said, on the authority of all the judges, "that no person whatsoever could expose to the public knowledge any thing that concerned the affairs of the public without license from the king, or from such persons as he may think fit to intrust with that power." the grand jury having several times returned "_ignoramus_" to an indictment against one smith for a libel, in respect of a very innocent publication, though they were sent out of court to reconsider the finding, he at last exclaimed, "god bless me from such jurymen. i will see the face of every one of them, and let others see them also." he accordingly cleared the bar, and, calling the jurymen one by one, put the question to them, and made each of them repeat the word "_ignoramus_." he then went on another tack, and addressing the defendant, said, in a coaxing tone, "come, mr. smith, there are two persons besides you whom this jury have brought in _ignoramus_; but they have been ingenuous enough to confess, and i cannot think to fine them little enough; they shall be fined twopence for their ingenuity in confessing. well, come, mr. smith, we know who hath formerly owned both printing and publishing this book." _smith._--"sir, my ingenuity hath sufficiently experienced the reward of your severity; and, besides, i know no law commands me to accuse myself; neither shall i; and the jury have done like true englishmen and worthy citizens, and blessed be god for such a jury." jeffreys was furious, but could only vent his rage by committing the defendant till he gave security for his good behavior. such services were not to go unrewarded. it was the wish of the government to put the renegade jeffreys into the office of chief justice of chester, so often the price of political apostasy; but sir job charlton, a very old gentleman, who now held it, could not be prevailed upon voluntarily to resign, for he had a considerable estate in the neighborhood, and was loath to be stripped of his dignity. jeffreys, supported by the duke of york, pressed the king hard, urging that "a welshman ought not to judge his countrymen," and a message was sent to sir job that he was to be removed. the old gentleman was imperfectly consoled with the place of puisne judge of the common pleas, which, in the reign of james ii., he was subsequently allowed to exchange for his beloved chester. meanwhile he was succeeded by jeffreys, "more welshman than himself," who was at the same time made counsel for the crown, at ludlow, where a court was still held for wales. immediately afterwards, the new chief justice was called to the degree of the coif, and made king's serjeant, whereby he had precedence in westminster hall of the attorney and solicitor general. the motto on his rings, with great brevity and point, inculcated the prevailing doctrines of divine right and passive obedience--"_a deo rex, a rege lex_." as a further mark of royal favor, there was conferred upon him the hereditary dignity of a baronet. he still retained the recordership of london, and had extensive practice at the bar. the great prosperity which jeffreys now enjoyed had not the effect which it ought to have produced upon a good disposition, by making him more courteous and kind to others. when not under the sordid dread of injuring himself by offending superiors, he was universally insolent and overbearing. being made chief justice of chester, he thought that all puisne judges were beneath him, and he would not behave to them with decent respect, even when practising before them. at the kingston assizes, baron weston having tried to check his irregularities, he complained that he was not treated like a counsellor, being curbed in the management of his brief. _weston, b._--"sir george, since the king has thrust his favors upon you, and made you chief justice of chester, you think to run down every body; if you find yourself aggrieved, make your complaint; here's nobody cares for you." _jeffreys._--"i have not been used to make complaints, but rather to stop those that are made." _weston, b._--"i desire, sir, that you will sit down." he sat down, and is said to have wept with anger. his intemperate habits had so far shaken his nerves, that he shed tears very freely on any strong emotion. we may be prepared for his playing some fantastic tricks before his countrymen at chester, where he was subject to no control; but the description of his conduct there by lord delamere, (afterwards earl of warrington,) in denouncing it in the house of commons, must surely be overcharged:-- "the county for which i serve is cheshire, which is a county palatine; and we have two judges peculiarly assigned us by his majesty. our puisne judge i have nothing to say against; he is a very honest man, for aught i know; but i cannot be silent as to our chief judge; and i will name him, because what i have to say will appear more probable. his name is sir george jeffreys, who, i must say, behaved himself more like a jack-pudding than with that gravity which becomes a judge. he was witty upon the prisoners at the bar. he was very full of his jokes upon people that came to give evidence, not suffering them to declare what they had to say in their own way and method, but would interrupt them because they behaved themselves with more gravity than he. but i do not insist upon this, nor upon the late hours he kept up and down our city; it's said he was every night drinking till two o'clock, or beyond that time, and that he went to his chamber drunk; but this i have only by common fame, for i was not in his company; i bless god i am not a man of his principles and behavior; but in the mornings he appeared with the symptoms of a man that overnight had taken a large cup. that which i have to say is the complaint of every man, especially of them that had any lawsuits. our chief justice has a very arbitrary power in appointing the assize when he pleases, and this man has strained it to the highest point; for whereas we were accustomed to have two assizes, the first about april or may, the latter about september, it was this year the middle (as i remember) of august before we had any assize; and then he despatched business so well that he left half the causes untried; and, to help the matter, has resolved we shall have no more assizes this year." being tired of revelling in chester, he put a sudden end to his first assize there, that he might pay a visit to his native place; to which i am afraid he was less prompted by a pious wish to embrace his father, who had been so resolutely bent on making him a shopkeeper, and who, from the stories propagated about his conduct as a judge, still expressed some misgivings about him, as to dazzle his old companions with the splendor of his new state. accordingly he came with such a train that the cider barrels at acton ran very fast, and the larder was soon exhausted; whereupon the old gentleman, in a great fret, charged his son with a design to ruin him, by bringing a whole county at his heels, and warned him against again attempting the same prodigality. but a violent political storm now arose, which threatened entirely to overwhelm our hero, and from which he did not escape unhurt. in the struggle which arose from the long delay to assemble parliament, he had leagued himself strongly with the "abhorrers" against the "petitioners," and proceedings were instituted in the house of commons on this ground, against him along with chief justice scroggs and chief justice north. a petition from the city of london, very numerously signed, having been presented, complaining that the recorder had obstructed the citizens in their attempts to have parliament assembled for the redress of grievances, a select committee was appointed, who, having heard evidence on the subject, and examined him in person, presented a report, on which the following resolutions were passed:-- "that sir george jeffreys, recorder of the city of london, by traducing and obstructing petitioning for the sitting of this parliament, hath destroyed the right of the subject. "that an humble address be presented to his majesty, to remove sir george jeffreys out of all public offices. "that the members of this house serving for the city of london do communicate these resolutions to the court of aldermen for the said city." the king was stanch, and returned for answer to the address the civil refusal "that he would consider of it;"[ ] but jeffreys, who, where he apprehended personal danger, was "none of the intrepids," quailed under the charge, and, afraid of further steps being taken against him, came to an understanding that he should give up the recordership, which his enemies wished to be conferred upon their partisan, sir george treby. the king was much chagrined at the loss of such a valuable recorder, and said sarcastically that "he was not parliament-proof." but he was obliged to acquiesce, and jeffreys, having been reprimanded on his knees at the bar, was discharged. the address of speaker williams was very bitter, and caused deep resentment in the mind of jeffreys. on the d of december he actually did resign his office, and treby was chosen to succeed him. in a few days after there was exhibited one of lord shaftesbury's famous protestant processions, on the anniversary of the accession of queen elizabeth. in this rode a figure on horseback, to represent the ex-recorder, with his face to the tail, and a label on his back, "i am an abhorrer." at temple bar he was thrown into a bonfire, coupled with the devil; the preceding pair, who suffered the same fate, being sir roger l'estrange[ ] and the pope of rome. however, all these indignities endeared him to the court; and his pusillanimity was forgiven from the recollection of past and the hope of future services. a petition from the city being presented to the king at hampton court, he attended as a liveryman, though no longer the mouthpiece of the corporation, when he was treated with marked civility by charles, and detained to dinner, while the lord mayor and aldermen and the new recorder were sent off with a reprimand. to oblige the court, and to assist them in their criminal jobs, he accepted the appointment of chairman of the middlesex sessions at hicks's hall, although it was somewhat beneath his dignity, and it deprived him of a portion of his practice. here the grand jury were sworn in; and as they were returned by sheriffs whom the city of london elected, and who were still of the liberal party, the problem was to have them remodelled, so that they might find bills of indictment against all whom the government wished to prosecute. with this view, jeffreys declared that none should serve except true church of england men; and he ordered the under-sheriff to return a new panel purged of all sectarians. he had a particular spite against the presbyterians, who had mainly contributed to his being turned out of the recordership. the under-sheriff disobeying his summons, he ordered the sheriffs to attend next day in person; but in their stead came the new recorder, who urged that, by the privileges of the city of london, they were exempted from attending at hicks's hall. he overruled this claim with contempt, and fined the sheriffs one hundred pounds. it was found, however, that while the city retained the power of electing the sheriffs, all these attempts to pervert justice would be fruitless. jeffreys remained in a state of painful anxiety during charles's last westminster parliament, and during the few days of the oxford parliament. the popular party had such a majority in the house of commons, and seemed so powerful, that it is said the renegade again expressed deep regret that he had left them; but late at night, on monday, the th day of march, , news arrived in london, that early that morning the king had dissolved the parliament, and had declared his firm determination never to call another. if jeffreys was still sober, and got drunk that night, we ought to excuse him. now his talents were to be brought into full play. in the conflict, the ranks of the enemy being thrown into disorder, the brigade of the lawyers, who had been kept back as a reserve, was marched up to hang on their broken rear, insulting, and to sweep them from the field. first came on the trial of fitzharris for high treason. jeffreys, as counsel for the crown, argued the demurrer to the plea of the pendency of the impeachment; and then, having assisted the duchess of portsmouth to evade the questions which were put to her for the purpose of showing that the prisoner had acted under the king's orders, he addressed the jury with great zeal after the solicitor general, and was mainly instrumental in obtaining the conviction. next came the trial of archbishop plunkett, the roman catholic primate of ireland, in which jeffreys was so intemperate that the attorney general was obliged to check him, that the prisoner might have some show of fair play. but it was on the trial of college, "the protestant joiner,"[ ] that he gave the earliest specimen of his characteristic ribaldry, and his talent for jesting in cases of life and death, which shone out so conspicuously when he was lord chief justice of the king's bench. he began with strongly justifying the act of taking from the prisoner the papers he was to use in his defence, saying, that to allow him to see them would be "assigning counsel to him with a vengeance." a witness having stated that pistols were found in the prisoner's holsters when he was attending the city members at oxford, he exclaimed with a grin, "i think a _chisel_ might have been more proper for a _joiner_." there was called as a witness, by the prisoner, one lun, who, being a waiter at the devil tavern and a fanatic, had some years before been caught on his knees praying against the cavaliers, saying, "scatter them, good lord! scatter them!" from whence he had ever after borne the nickname of "scatter'em." jeffreys thus begins his cross-examination: "we know you, mr. lun; we only ask questions about you that the jury too may know you as well as we." _lun._--"i don't care to give evidence of any thing but the truth. i was never on my knees before the parliament for any thing." _jeffreys._--"nor i neither for much; yet you were once on your knees when you cried, 'scatter them, good lord!' was it not so, mr. scatter'em?" he had next an encounter with the famous titus oates, who was called by college, and who, when cross-examined by him, appealed to sir george jeffreys's own knowledge of a fact about which he was inquiring. _jeffreys._--"sir george jeffreys does not intend to be an evidence, i assure you." _dr. oates._--"i do not desire sir george jeffreys to be an evidence for me; i had credit in parliaments, and sir george had disgrace in one of them." _jeffreys._--"your servant, doctor; you are a witty man and a philosopher." he had his full revenge when the doctor himself was afterwards tried before him. we may judge of the councillor's general style of treating witnesses by his remark on the trial of lord grey de werke for carrying off the lady henrietta berkeley; when his objection was overruled to the competency of the young lady as a witness for the defendant, although she was not only of high rank and uncommon beauty, but undoubted veracity, he observed, "truly, my lord, we would prevent perjury if we could." we now come to transactions which strikingly prove the innate baseness of his nature in the midst of his pretended openness and jolly good humor. he owed every thing in life to the corporation of the city of london. the freemen, in the exercise of their ancient privileges, had raised him from the ground by electing him common serjeant and recorder, and to the influence he was supposed to have in the court of common council and in the court of aldermen must be ascribed his introduction to whitehall and all his political advancement. but when, upon the failure of the prosecution against lord shaftesbury, the free municipal constitution of the city became so odious to the government, he heartily entered into the conspiracy to destroy it. it is said that he actually suggested the scheme of having a sheriff nominated by the lord mayor, and he certainly took a very active part in carrying it into execution. on midsummer day, having planted lord chief justice north in his house in aldermanbury, that he might be backed by his authority, he himself appeared on the hustings in guildhall; and when the poll was going against the court candidates, illegally advised the lord mayor to dissolve the hall, and afterwards to declare them duly elected. he did every thing in his power to push on and to assist the great _quo warranto_, by which the city was to be entirely disfranchised.[ ] when success had crowned these efforts, and pilkington and shute, the former sheriffs, with alderman cornish and others, were to be tried before a packed jury for a riot at the election, finding that he had the game in his hand, his insolence knew no bounds. the defendants having challenged the array, on the ground that the sheriffs who returned the panel were not lawfully appointed,[ ] as soon as the challenge was read, he exclaimed, "here's a tale of a tub indeed!" the counsel for the defendants insisted that the challenge was good in law, and at great length argued for its validity. _jeffreys._--"robin hood upon greendale stood." _thompson, counsel for the defendants._--"if the challenge be not good, there must be a defect in it either in point of law or in point of fact. i pray that the crown may either demur or traverse." _jeffreys._--"this discourse is only for discourse sake. i pray the jury may be sworn." _lord chief justice saunders._--"ay, ay, swear the jury." the defendants were, of course, all found guilty; and as there were among them the most eminent of jeffreys's old city friends, he exerted himself to the utmost not only in gaining a conviction, but in aggravating the sentence. but this was only a case of misdemeanor, in which he could ask for nothing beyond fine and imprisonment. he was soon to be engaged in prosecutions for high treason against the noblest of the land, in which his savage taste for blood might be gratified. the ryehouse plot broke out, for which there was some foundation; and after the conviction of those who had planned it, lord russell was brought to trial at the old bailey, on the ground that he had consented to it. jeffreys, in the late state trials, had gradually been encroaching on the attorney and solicitor general, sir robert sawyer and sir heneage finch, and in lord russell's case, to which the government attached such infinite importance, he almost entirely superseded them. to account for his unexampled zeal, we must remember that the office of chief justice of the king's bench was still vacant, saunders having died a few months before, and lord keeper north having strongly opposed the appointment of jeffreys as his successor. these trials took place before a commission, at the head of which was placed pemberton, chief justice of the common pleas, to whom a chance was thus afforded of earning a reappointment to the chief justiceship of the king's bench, in which he had been superseded by saunders. the case of colonel walcot was taken first; and here there was no difficulty, for he had not only joined in planning an insurrection against the government, but was privy to the design of assassinating the king and the duke of york, and in a letter to the secretary of state he had confessed his complicity, and offered to become a witness for the crown. this trial was meant to prepare the public mind for that of lord russell, the great ornament of the whig party, who had carried the exclusion bill through the house of commons, and, attended by a great following of whig members, had delivered it with his own hand to the lord chancellor at the bar of the house of lords. in proportion to his virtues was the desire to wreak vengeance upon him. but the object was no less difficult than desirable, for he had been kept profoundly ignorant of the intention to offer violence to the royal brothers, from the certainty that he would have rejected it with abhorrence; and although he had been present when there were deliberations respecting the right and the expediency of resistance by force to the government after the system had been established of ruling without parliaments, he had never concurred in the opinion that there were no longer constitutional means of redress; much less had he concerted an armed insurrection. notwithstanding all the efforts made to return a prejudiced jury, there were serious apprehensions of an acquittal. pemberton, the presiding judge, seems to have been convinced that the evidence against him was insufficient; and although he did not interpose with becoming vigor, by repressing the unfair arts of jeffreys, who was leading counsel for the crown, and although he did not stop the prosecution, as an independent judge would do in modern times, he cannot be accused of any perversion of law; and, instead of treating the prisoner with brutality, as was wished and expected, he behaved to him with courtesy and seeming kindness. lord russell, on his arraignment at the sitting of the court in the morning, having prayed that the trial should be postponed till the afternoon, as a witness for him was absent, and it had been usual in such case to allow an interval between the arraignment and the trial, pemberton said, "why may not this trial be respited till the afternoon?" and the only answer being the insolent exclamation, "pray call the jury," he mildly added, "my lord, the king's counsel think it not reasonable to put off the trial longer, and we cannot put it off without their consent in this case." the following dialogue then took place, which introduced the touching display of female tenderness and heroism of the celebrated rachel, lady russell, assisting her martyred husband during his trial--a subject often illustrated both by the pen and the pencil. _lord russell._--"my lord, may i not have the use of pen, ink, and paper?" _pemberton._--"yes, my lord." _lord russell._--"my lord, may i not make use of any papers i have?" _pemberton._--"yes, by all means." _lord russell._--"may i have somebody write to help my memory?" _attorney general._--"yes, a servant." _lord russell._--"my wife is here, my lord, to do it." _pemberton._--"if my lady please to give herself the trouble." the chief justice admitted dr. burnet, dr. tillotson, and other witnesses, to speak to the good character and loyal conversation of the prisoner, and gave weight to their testimony, notwithstanding the observation of jeffreys that "it was easy to express a regard for the king while conspiring to murder him." lord russell had certainly been present at a meeting of the conspirators, when there was a consultation about seizing the king's guards; but he insisted that he came in accidentally, that he had taken no part in the conversation, and that he was not acquainted with their plans. the aspirant chief justice saw clearly where was the pinch of the case, and the attorney general, who was examining colonel rumsey, being contented with asking--"was the prisoner at the debate?" and receiving the answer "yes," jeffreys started up, took the witness into his own hands, and calling upon him to draw the inference which was for the jury, pinned the basket by this leading and highly irregular question--"did you find him averse to it or agreeing to it?" having got the echoing answer which he suggested, "_agreeing to it_," he looked round with exultation, and said, "if my lord russell now pleases to ask any questions, he may!" jeffreys addressed the jury in reply after the solicitor general had finished, and much outdid him in pressing the case against the prisoner, while he disclaimed with horror the endeavor to take away the life of the innocent. the jury retired, and the courtiers present were in a state of the greatest alarm; for against algernon sydney, who was to be tried next, the case was still weaker; and if the two whig chiefs, who were considered already cut off, should recover their liberty, and should renew their agitation, a national cry might be got up for the summoning of parliament, and a new effort might be made to rescue the country from a popish successor. these fears were vain. the jury returned a verdict of guilty, and lord russell expiated on the scaffold the crime of trying to preserve the religion and liberties of his country. jeffreys had all the glory of the verdict of guilty, and as the lord chief justice pemberton had rather flinched during this trial, and the attorney and solicitor general were thought men who would cry craven, and as the next case was not less important and still more ticklish, all objections to the proposed elevation of the favorite vanished, and he became chief justice of england, as the only man fit to condemn algernon sydney.[ ] the new chief justice was sworn in on the th of september, , and took his seat in the court of king's bench on the first day of the following michaelmas term. sydney's case was immediately brought on before him in this court, the indictment being removed by _certiorari_ from the old bailey, that it might be under his peculiar care. the prisoner wishing to plead some collateral matter, was told by the chief justice that, if overruled, sentence of death would immediately be passed upon him. though there can be no doubt of the illegality of the conviction, the charge against jeffreys is unfounded, that he admitted the ms. treatise on government to be read without any evidence of its having been written by the prisoner, beyond "similitude of hands." two witnesses, who were acquainted with his handwriting from having seen him indorse bills of exchange, swore that they believed it to be his handwriting, and they were corroborated by a third, who, with his privity, had paid notes purporting to be indorsed by him without any complaint ever being made. but the undeniable and ineffaceable atrocity of the case was the lord chief justice's doctrine, that "_scribere est agere_," and that therefore this ms. containing some abstract speculations on different forms of government written many years before, never shown to any human being, and containing nothing beyond the constitutional principles of locke and paley, was tantamount to the evidence of a witness to prove an overt act of high treason. "if you believe that this was colonel sydney's book, writ by him, no man can doubt that it is a sufficient evidence that he is guilty of compassing and imagining the death of the king. it fixes the whole power in the parliament and the people. the king, it says, is responsible to them; the king is but their trustee. gentlemen, i must tell you i think i ought more than ordinarily to press this upon you, because i know the misfortune of the late unhappy rebellion, and the bringing of the late blessed king to the scaffold, was first begun with such kind of principles. they cried he had betrayed the trust that was delegated to him by the people, so that the case rests not upon two but upon greater evidence than twenty-two witnesses, if you believe this book was writ by him." the chief justice having had the satisfaction of pronouncing with his own lips the sentence upon sydney, of death and mutilation, instead of leaving the task as usual to the senior puisne judge, a scene followed which is familiar to every one. _sydney._--"then, o god! o god! i beseech thee to sanctify these sufferings unto me, and impute not my blood to the country; let no inquisition be made for it, but if any, and the shedding of blood that is innocent must be revenged, let the weight of it fall only upon those that maliciously persecute me for righteousness sake." _lord c. j. jeffreys._--"i pray god work in you a temper fit to go unto the other world, for i see you are not fit for this." _sydney._--"my lord, feel my pulse [holding out his hand,] and see if i am disordered. i bless god i never was in better temper than i now am." by order of the chief justice, the lieutenant of the tower immediately removed the prisoner. a very few days after, and while this illustrious patriot was still lying under sentence of death, the lord chief justice jeffreys and mr. justice withins, who sat as his brother judge on the trial, went to a gay city wedding, where the lord mayor and other grandees were present. evelyn, who was of the party, tells us that the chief and the puisne both "danced with the bride and were exceeding merry." he adds, "these great men spent the rest of the afternoon until eleven at night in drinking healths, taking tobacco, and talking much beneath the gravity of judges, who had but a day or two before condemned mr. algernon sydney." the next exhibition in the court of king's bench which particularly pleased jeffreys and horrified the public, was the condemnation of sir thomas armstrong. this gentleman was outlawed while beyond the seas, and being sent from holland within the year, sought, according to his clear right in law, to reverse the outlawry.[ ] i have had occasion to reprobate the conduct of lord keeper north in refusing him his writ of error, and suffering his execution; but jeffreys may be considered the executioner. when brought up to the king's bench bar, armstrong was attended by his daughter, a most beautiful and interesting young woman, who, when the chief justice had illegally overruled the plea, and pronounced judgment of death under the outlawry, exclaimed, "my lord, i hope you will not murder my father." _chief justice jeffreys._--"who is this woman? marshal, take her into custody. why, how now? because your relative is attainted for high treason, must you take upon you to tax the courts of justice for murder when we grant execution according to law? take her away." _daughter._--"god almighty's judgments light upon you." _chief justice jeffreys._--"god almighty's judgments will light upon those that are guilty of high treason." _daughter._--"amen. i pray god." _chief justice jeffreys._--"so say i. i thank god i am clamor proof." [the daughter is committed to prison, and carried off in custody.] _sir thomas armstrong._--"i ought to have the benefit of the law, and i demand no more." _chief justice jeffreys._--"that you shall have, by the grace of god. see that execution be done on friday next, according to law. you shall have the full benefit of the law!" armstrong was hanged, embowelled, beheaded, and quartered accordingly. when jeffreys came to the king at windsor soon after this trial, "the king took a ring of good value from his finger and gave it to him for these services. the ring upon that was called his _blood stone_."[ ] in the reign of william and mary, armstrong's attainder was reversed. jeffreys was then out of reach of process, but for the share which sir robert sawyer had in it as attorney general, he was expelled the house of commons. jeffreys had now the satisfaction of causing an information to be filed against sir william williams for having, as speaker of the house of commons, under the orders of the house, directed the printing of "dangerfield's narrative,"[ ] the vengeful tyrant thus dealing a blow at once to an old enemy who had reprimanded him on his knees, and to the privileges of the house, equally the object of his detestation. he was in hopes of deciding the case himself, but he left it as a legacy to his successor, chief justice herbert, who, under his auspices, at once overruled the plea, and fined the defendant ten thousand pounds. not only was jeffreys a privy councillor, but he had become a member of the cabinet, where, from his superior boldness and energy, as well as his more agreeable manners, he had gained a complete victory over lord keeper north, whom he denounced as a "trimmer," and the great seal seemed almost within his grasp.[ ] to secure it, he still strove to do every thing he could devise to please the court, as if hitherto nothing base had been done by him. when, to his great joy, final judgment was entered up against the city of london on the _quo warranto_, he undertook to get all the considerable towns in england to surrender their charters on the threat of similar proceedings; and with this view, in the autumn of , he made a "campaign in the north," which was almost as fatal to corporations as that "in the west," the following year, proved to the lives of men. to show to the public the special credit he enjoyed at court, the london gazette, just before he set out, in reference to the gift bestowed upon him for the judgment against sir thomas armstrong, announced "that his majesty, as a mark of his royal favor, had taken a ring from his own finger and placed it on that of lord chief justice jeffreys." in consequence, although when on the circuit he forgot the caution against hard drinking, with which the gift had been accompanied, he carried every thing before him, "charters fell like the walls of jericho," and he returned laden with his hyperborean spoils. i have already related the clutch at the great seal which he then made, and his temporary disappointment.[ ] he was contented to "bide his time." there were only two other occasions when he had it in his power to pervert the law, for the purpose of pleasing the court, during the present reign. the first was on the trial of hampden, the grandson of the great hampden, for a trifling misdemeanor. although this young gentleman was only heir apparent to a moderate estate, and not in possession of any property, he was sentenced to pay a fine of forty thousand pounds--jeffreys saying that the clause in magna charta, "_liber homo non amercietur pro magno delicto nisi salvo contenemento suo_," does not apply to fines imposed by the king's judges. the other was the inquisition in the action of _scan. mag._ brought by the duke of york against titus oates, in which the jury, under his direction, awarded one hundred thousand pounds damages. ever since the disfranchisement of the city of london, the ex-recorder had ruled it with a rod of iron. he set up a nominal lord mayor and nominal aldermen; but, as they were entirely dependent upon him, he treated them with continual insolence. on the sudden death of charles ii., jeffreys no doubt thought the period was arrived when he must be rewarded for the peculiar zeal with which he had abandoned himself to the service of the successor; but he was at first disappointed, and he had still to "wade through slaughter" to the seat he so much coveted. not dismayed, he resolved to act on two principles: st, if possible, to outdo himself in pleasing his master, whose arbitrary and cruel disposition became more apparent from the hour that he mounted the throne. dly, to leave no effort untried to discredit, disgrace, disgust, and break the heart of the man who stood between him and his object. being confirmed in the office of chief justice of the king's bench, he began with the trial for perjury of titus oates, whose veracity he had often maintained, but with whom he had a personal quarrel, and whom he now held up to reprobation--depriving him of all chance of acquittal. the defendant was found guilty on two indictments, and the verdict on both was probably correct; but what is to be said for the sentence--"to pay on each indictment a fine of one thousand marks; to be stript of all his canonical habits; to be imprisoned for life; to stand in the pillory on the following monday, with a paper over his head, declaring his crime; next day to stand in the pillory at the royal exchange, with the same inscription; on the wednesday to be whipped from aldgate to newgate; on the friday to be whipped from newgate to tyburn; upon the th of april in every year, during life, to stand in the pillory at tyburn, opposite the gallows; on the th of august in every year to stand in the pillory opposite westminster hall gate; on the th of august in every year to stand in the pillory at charing cross; and the like on the following day at temple bar; and the like on the d of september, every year, at the royal exchange;"--the court expressing deep regret that they could not do more, as they would "not have been unwilling to have given judgment of death upon him."[ ] next came the trial of richard baxter, the pious and learned presbyterian divine, who had actually said, and adhered to the saying, "_nolo episcopari_," and who was now prosecuted for a libel, because in a book on church government he had reflected on the church of rome in words which might possibly be applied to the bishops of the church of england. no such reference was intended by him; and he was known not only to be of exemplary private character, but to be warmly attached to monarchy, and always inclined to moderate measures in the differences between the established church and those of his own persuasion.[ ] yet, when he pleaded _not guilty_, and prayed on account of ill health that his trial might be postponed, jeffreys exclaimed, "not a minute more to save his life. we have had to do with other sort of persons, but now we have a saint to deal with; and i know how to deal with saints as well as sinners. yonder stands oates in the pillory, [oates was at that moment suffering part of his sentence in palace yard, outside the great gate of westminster hall,] and he says he suffers for the truth; and so says baxter; but if baxter did but stand on the outside of the pillory with him, i would say _two of the greatest rogues and rascals in the kingdom stood there together_." having silenced the defendant's counsel by almost incredible rudeness, the defendant himself wished to speak, when the chief justice burst out, "richard, richard, thou art an old fellow and an old knave; thou hast written books enough to load a cart; every one is as full of sedition, i might say treason, as an egg is full of meat; hadst thou been whipt out of thy writing trade forty years ago, it had been happy. thou pretendest to be a preacher of the gospel of peace, and thou hast one foot in the grave; it is time for thee to begin to think what account thou intendest to give; but leave thee to thyself, and i see thou wilt go on as thou hast begun; but, by the grace of god, i'll look after thee. gentlemen of the jury, he is now modest enough; but time was when no man was so ready at _bind your kings in chains and your nobles in fetters of iron_, crying, _to your tents, o israel!_ gentlemen, for god's sake do not let us be gulled twice in an age." the defendant was, of course, found guilty, and thought himself lucky to escape with a fine of five hundred pounds, and giving security for his good behavior for seven years.[ ] the lord chief justice, for his own demerits, and to thrust a thorn into the side of lord keeper guilford, was now raised to the peerage by the title of "baron jeffreys of wem"--the preamble of his patent narrating his former promotions--averring that they were the reward of virtue, and after the statement of his being appointed to preside in the court of king's bench, adding, "where at this very time he is faithfully and boldly doing justice and affording protection to our subjects, according to law, in consequence of which virtues we have thought him fit to be raised to the peerage of this realm."[ ] he took his seat in the house of lords on the first day of the meeting of james's only parliament, along with nineteen others either raised in the peerage or newly created since the dissolution of the oxford parliament--the junior being john lord churchill, afterwards duke of marlborough. the journals show that lord jeffreys was very regular in his attendance during the session, and as the house sat daily and still met at the same early hour as the courts of law, he must generally have left the business of the king's bench to be transacted by the other judges. he was now occupied day and night with plans for pushing the already disgraced lord keeper from the woolsack. i have already, in the life of lord guilford, related how these plans were conducted in the cabinet, in the royal circle at whitehall, and in the house of lords--particularly the savage treatment which the "staggering statesman" received on the reversal of his decree in _howard_ v. _duke of norfolk_, after which he never held up his head more.[ ] the probability is, that although he clung to office so pusillanimously in the midst of all sorts of slights and indignities, he would now have been forcibly ejected if his death had not appeared to be near at hand, and if there had not been a demand for the services of "judge jeffreys" in a scene very different from the drowsy tranquillity of the court of chancery. by the month of july, monmouth's rebellion had been put down, and he himself had been executed upon his parliamentary attainder without the trouble of a trial: but all the jails in the west of england were crowded with his adherents, and, instead of colonel kirke doing military execution on more of them than had already suffered from his "lambs," it was resolved that they should all perish by the flaming sword of justice--which, on such an occasion, there was only one man fit to wield. no assizes had been held this summer on the western circuit; but for all the counties upon it a special commission to try criminals was now appointed, at the head of which lord chief justice jeffreys was put; and by a second commission, he, singly, was invested with the authority of commander-in-chief over all his majesty's forces within the same limits. on entering hampshire he was met by a brigade of soldiers, by whom he was guarded to winchester. during the rest of his progress he never moved without a military escort; he daily gave the word; orders for going the rounds, and for the general disposal of the troops, were dictated by him--sentinels mounting guard at his lodgings, and the officers on duty sending him their reports. i desire at once to save my readers from the apprehension that i am about to shock their humane feelings by a detailed statement of the atrocities of this bloody campaign in the west, the character of which is familiar to every englishman. but, as a specimen of it, i must present a short account of the treatment experienced by lady lisle, with whose murder it commenced. she was the widow of major lisle, who had sat in judgment on charles i., had been a lord commissioner of the great seal under cromwell, and, flying on the restoration, had been assassinated at lausanne. she remained in england, and was remarkable for her loyalty as well as piety. jeffreys's malignant spite against her is wholly inexplicable; for he had never had any personal quarrel with her, she did not stand in the way of his promotion, and the circumstance of her being the widow of a regicide cannot account for his vindictiveness. perhaps without any personal dislike to the individual, he merely wished to strike terror into the west by his first operation. the charge against her, which was laid capitally, was that after the battle of sedgemoor she had harbored in her house one hickes, who had been in arms with the duke of monmouth--_she knowing of his treason_. in truth she had received him into her house, thinking merely that he was persecuted as a non-conformist minister, and the moment she knew whence he came, she (conveying to him a hint that he should escape) sent her servant to a justice of peace to give information concerning him. there was the greatest difficulty even to show that hickes had been in the rebellion, and the judge was worked up to a pitch of fury by being obliged himself to cross-examine a presbyterian witness, who had showed a leaning against the prosecution. but the principal traitor had not been convicted, and there was not a particle of evidence to show the _scienter_, _i. e._, that the supposed accomplice, at the time of the harboring was acquainted with the treason. not allowed the benefit of counsel, she herself, prompted by natural good sense, took the legal objection that the principal traitor ought first to have been convicted, "because, peradventure, he might afterwards be acquitted as innocent after she had been condemned for harboring him;" and she urged with great force to the jury, "that at the time of the alleged offence she had been entirely ignorant of any suspicion of hickes having participated in the rebellion; that she had strongly disapproved of it, and that she had sent her only son into the field to fight under the royal banner to suppress it." it is said by almost all the contemporary authorities, that thrice did the jury refuse to find a verdict of guilty, and thrice did lord chief justice jeffreys send them back to reconsider their verdict. in the account of the proceeding in the state trials, which has the appearance of having been taken in short hand, and of being authentic, the repeated sending back of the jury is not mentioned; but enough appears to stamp eternal infamy on jeffreys, if there were nothing more extant against him. after a most furious summing up, "the jury withdrew, and staying out a while, the lord jeffreys expressed a great deal of impatience, and said he wondered that in so plain a case they would go from the bar, and would have sent for them, with an intimation that, if they did not come quickly, he would adjourn, and let them lie by it all night; but, after about half an hour's stay, the jury returned, and the foreman addressed himself to the court thus: 'my lord, we have one thing to beg of your lordship some directions in before we can give our verdict: we have some doubt whether there be sufficient evidence that she knew hickes to have been in the army.' _l. c. j._--'there is as full proof as proof can be; but you are judges of the proof; for my part, i thought there was no difficulty in it.' _foreman._--'my lord, we are in some doubt of it.' _l. c. j._--'i cannot help your doubts; was there not proved a discourse of the battle and the army at supper time?' _foreman._--'but, my lord, we are not satisfied that she had notice that hickes was in the army.' _l. c. j._--'i cannot tell what would satisfy you. did she not inquire of dunne whether hickes had been in the army? and when he told her he did not know, she did not say she would refuse him if he had been there, but ordered him to come by night, by which it is evident she suspected it.... but if there was no such proof, the circumstances and management of the thing is as full a proof as can be. i wonder what it is you doubt of.' _lady lisle._--'my lord, i hope----.' _l. c. j._--'you must not speak now.' the jury laid their heads together near a quarter of an hour, and then pronounced a verdict of guilty. _l. c. j._--'gentlemen, i did not think i should have had any occasion to speak after your verdict; but finding some hesitancy and doubt among you, i cannot but say i wonder it should come about; for i think in my conscience the evidence was as full and plain as could be, and if i had been among you, and she had been my own mother, i should have found her guilty.'" he passed sentence upon her with great _sang froid_, and, i really believe, would have done the same had she been the mother that bore him--"that you be conveyed from hence to the place from whence you came, and from thence you are to be drawn on a hurdle to the place of execution, where your body is to be burnt alive till you be dead. and the lord have mercy on your soul." the king refused the most earnest applications to save her life, saying that he had promised lord chief justice jeffreys not to pardon her; but, by a mild exercise of the prerogative, he changed the punishment of burning into that of beheading, which she actually underwent. after the revolution, her attainder was reversed by act of parliament, on the ground that "the verdict was injuriously extorted by the menaces and violence and other illegal practices of george lord jeffreys, baron of wem, then lord chief justice of the king's bench." from winchester, the "lord general judge" proceeded to salisbury, where he was obliged to content himself with whippings and imprisonments for indiscreet words, the wiltshire men not having actually joined in the insurrection. but when he got into dorsetshire, the county in which monmouth had landed, and where many had joined his standard, he was fatigued, if not satiated, with shedding blood. great alarm was excited, and not without reason, by his being seen to laugh in church, both during the prayers and sermon which preceded the commencement of business in the hall--his smile being construed into a sign that he was about "to breathe death like a destroying angel, and to sanguine his very ermine in blood." his charge to the grand jury threw the whole county into a state of consternation; for he said he was determined to exercise the utmost rigor of the law, not only against principal traitors, but all aiders and abettors, who, by any expression, had encouraged the rebellion, or had favored the escape of any engaged in it, however nearly related to them, unless it were the harboring of a husband by a wife, which the wisdom of our ancestors permitted, because she had sworn to obey him. bills of indictment for high treason were found by the hundred, often without evidence, the grand jury being afraid that, if they were at all scrupulous, they themselves might be brought in "aiders and abettors." it happened, curiously enough, that as he was about to arraign the prisoners, he received news, by express, that the lord keeper guilford had breathed his last at wroxton, in oxfordshire. he had little doubt that he should himself be the successor, and very soon after, by a messenger from windsor, he received assurances to that effect, with orders "to finish the king's business in the west." although he had no ground for serious misgivings, he could not but feel a little uneasy at the thought of the intrigues which in his absence might spring up against him in a corrupt court, and he was impatient to take possession of his new dignity. but what a prospect before him, if all the prisoners against whom there might be indictments, here and at other places, should plead not guilty, and _seriatim_ take their trials! he resorted to an expedient worthy of his genius by openly proclaiming, in terms of vague promise but certain denunciation, that "if any of those indicted would relent from their conspiracies, and plead guilty, they should find him to be a merciful judge; but that those who put themselves on their trials, (which the law mercifully gave them all in strictness a right to do,) if found guilty, would have very little time to live; and, therefore, that such as were conscious they had no defence, had better spare him the trouble of trying them." he was at first disappointed. the prisoners knew the sternness of the judge, and had some hope from the mercy of their countrymen on the jury. the result of this boldness is soon told. he began on a saturday morning, with a batch of thirty. of these, only one was acquitted for want of evidence, and the same evening he signed a warrant to hang thirteen of those convicted on the monday morning, and the rest the following day. an impressive defence was made by the constable of chardstock, charged with supplying the duke of monmouth's soldiers with money; whereas they had actually robbed him of a considerable sum which he had in his hands for the use of the militia. the prisoner having objected to the competency of a witness called against him, "villain! rebel!" exclaimed the judge, "methinks i see thee already with a halter about thy neck." and he was specially ordered to be hanged the first, my lord jeeringly declaring "that if any with a knowledge of the law came in his way, he should take care to _prefer them_!" on the monday morning, the court sitting rather late on account of the executions, the judge, on taking his place, found many applications to withdraw the plea of not guilty, and the prisoners pleaded guilty in great numbers; but his ire was kindled, and he would not even affect any semblance of mercy. two hundred and ninety-two more received judgment to die, and of these seventy-four actually suffered--some being sent to be executed in every town, and almost in every village, for many miles round. while the whole county was covered with the gibbeted quarters of human beings, the towns resounded with the cries of men, and even of women and children, who were cruelly whipped for sedition, on the ground that by words or looks they had favored the insurrection. jeffreys next proceeded to exeter, where one john foweracres, the first prisoner arraigned, had the temerity to plead not guilty, and being speedily convicted, was sent to instant execution. this had the desired effect; for all the others confessed, and his lordship was saved the trouble of trying them. only thirty-seven suffered capitally in the county of devon, the rest of the two hundred and forty-three against whom indictments were found being transported, whipped, or imprisoned. somersetshire afforded a much finer field for indulging the propensities of the chief justice, as in this county there had not only been a considerable rising of armed men for monmouth, but processions, in which women and children had joined, carrying ribbons, boughs, and garlands to his honor. there were five hundred prisoners for trial at taunton alone. jeffreys said in his charge to the grand jury, "it would not be his fault if he did not purify the place." the first person tried before him here was simon hamling, a dissenter of a class to whom the judge bore a particular enmity. in reality, the accused had only come to taunton, during the rebellion, to warn his son, who resided there, to remain neuter. conscious of his innocence, he insisted on pleading not guilty; he called witnesses, and made a resolute defence, which was considered great presumption. the committing magistrate, who was sitting on the bench, at last interposed and said, "there must certainly be some mistake about the individual." _jeffreys._--"you have brought him here, and, if he be innocent, his blood be upon your head." the prisoner was found guilty, and ordered for execution next morning. few afterwards gave his lordship the trouble of trying them, and one hundred and forty-three are said here to have been ordered for execution, and two hundred and eighty-four to have been sentenced to transportation for life. he particularly piqued himself upon his _bon mot_ in passing sentence on one hucher, who pleaded, in mitigation, that, though he had joined the duke of monmouth, he had sent important information to the king's general, the earl of feversham. "you deserve a double death," said the impartial judge; "one for rebelling against your sovereign, and the other for betraying your friends." he showed great ingenuity in revenging himself upon such as betrayed any disapprobation of his severities. among these was lord stawell, who was so much shocked with what he had heard of the chief justice, that he refused to see him. immediately after, there came forth an order that colonel bovet, of taunton, a friend to whom this cavalier nobleman had been much attached, should be executed at cotheleston, close by the house where he and lady stawell and his children then resided. a considerable harvest here arose from compositions levied upon the friends of twenty-six young virgins who presented the invader with colors, which they had embroidered with their own hands. the fund was ostensibly for the benefit of "the queen's maids of honor," but a strong suspicion arose that the chief justice participated in bribes for these as well as other pardons. he thought that his _peculium_ was encroached upon by a letter from lord sunderland, informing him of "the king's pleasure to bestow one thousand convicts on several courtiers, and one hundred on a favorite of the queen--security being given that the prisoners should be enslaved for ten years in some west india island." in his remonstrance he said that "these convicts would be worth ten or fifteen pounds apiece," and, with a view to his own claim, returned thanks for his majesty's gracious acceptance of his services. however, he was obliged to submit to the royal distribution of the spoil. where the king did not personally interfere, jeffreys was generally inexorable if he did not himself receive the bribe for a pardon. kiffin, a nonconformist merchant, had agreed to give three thousand pounds to a courtier for the pardon of two youths, his grandsons, who had been in monmouth's army; but the chief justice would listen to no circumstances of mitigation, as another was to pocket the price of mercy. yet, to a buffoon who attended him on the circuit and made sport by his mimicry, in an hour of revelry at taunton, he tossed the pardon of a rich culprit, expressing a hope "that it might turn to good account." the jails at taunton being incapable of containing all the prisoners, it was necessary to adjourn the commission to wells, where the same horrible scenes were again acted, notwithstanding the humane exertions of that most honorable man, bishop ken, who afterwards, having been one of the seven bishops prosecuted by king james, resigned his see at the revolution, rather than sign the new tests. the cornishmen had all remained loyal, and the city of bristol[ ] only remained to be visited by the commission. there were not many cases of treason here, but jeffreys had a particular spite against the corporation magistrates, because they were supposed to favor dissenters, and he had them very much in his power by a discovery he made, that they had been in the habit of having in turn assigned to them prisoners charged with felony, whom they sold for their own benefit to be transported to barbadoes. in addressing the grand jury, (while he complained of a fit of the stone, and was seemingly under the excitement of liquor,) he said,-- "i find a special commission is an unusual thing here, and relishes very ill; nay, the very women storm at it, for fear we should take the upper hand of them too; for by-the-bye, gentlemen, i hear it is much in fashion in this city for the women to govern and bear sway." having praised the mild and paternal rule of king james, he thus proceeded: "on the other hand, up starts a puppet prince, who seduces the mobile into rebellion, into which they are easily bewitched; for i say rebellion is like the sin of witchcraft. this man, who had as little title to the crown as the least of you, (for i hope you are all legitimate,) being overtaken by justice, and by the goodness of his prince brought to the scaffold, he has the confidence, (good god, that men should be so impudent!) to say that god almighty did know with what joyfulness he did die, (a traitor!) great god of heaven and earth! what reason have men to rebel? but, as i told you, rebellion is like the sin of witchcraft: fear god and honor the king is rejected for no other reason, as i can find, but that it is written in st. peter. gentlemen, i must tell you i am afraid that this city hath too many of these people in it, and it is your duty to find them out. gentlemen, i shall not stand complimenting with you; i shall talk with some of you before you and i part, i tell you; i tell you i have brought a besom, and i will sweep every man's door, whether great or small. certainly, here are a great many of those men whom they call trimmers; a whig is but a mere fool to those; for a whig is some sort of a subject in comparison of these; for a trimmer is but a cowardly and base-spirited whig; for the whig is but the journeyman prentice that is hired and set over the rebellion, whilst the trimmer is afraid to appear in the cause." he then opens his charge against the aldermen for the sale of convicts, and thus continues: "good god! where am i?--in bristol? this city it seems claims the privilege of hanging and drawing among themselves. i find you have more need of a special commission once a month at least. the very magistrates, that should be the ministers of justice, fall out with one another to that degree they will scarcely dine together; yet i find they can agree for their interest if there be but a _kid_ in the case; for i hear the trade of _kidnapping_ is much in request in this city. you can discharge a felon or a traitor, provided they will go to mr. alderman's plantation in the west indies. come, come, i find you stink for want of rubbing. it seems the dissenters and fanatics fare well amongst you, by reason of the favor of the magistrates; for example, if a dissenter who is a notorious and obstinate offender comes before them, one alderman or another stands up and says, _he is a good man_, (though three parts a rebel.) well, then, for the sake of mr. alderman, he shall be fined but five shillings. then comes another, and up stands another goodman alderman, and says, _i know him to be an honest man_, (though rather worse than the former.) well, for mr. alderman's sake, he shall be fined but half a crown; so _manus manum fricat_; you play the knave for me now, and i will play the knave for you by and by. i am ashamed of these things; but, by god's grace, i will mend them; for, as i have told you, i have brought a brush in my pocket, and i shall be sure to rub the dirt wherever it is, or on whomsoever it sticks." "thereupon," says roger north, "he turns to the mayor, accoutred with his scarlet and furs, and gave him all the ill names that scolding eloquence could supply; and so, with rating and staring, as his way was, never left till he made him quit the bench and go down to the criminal's post at the bar; and there he pleaded for himself as a common rogue or thief must have done; and when the mayor hesitated a little, or slackened his pace, he bawled at him, and stamping, called for his guards, for he was still general by commission. thus the citizens saw their scarlet chief magistrate at the bar, to their infinite terror and amazement." only three were executed for treason at bristol; but jeffreys looking at the end of his campaign to the returns of the enemy killed, had the satisfaction to find that they amounted to three hundred and thirty, besides eight hundred prisoners ordered to be transported.[ ] he now hastened homewards to pounce upon the great seal. in his way through somersetshire, with a regiment of dragoons as his life-guards, the mayor took the liberty to say that there were two spokes who had been convicted, and that one of these left for execution was not the one intended to suffer, the other having contrived to make his escape, and that favor might perhaps still be shown to him whom it was intended to pardon. "no!" said the general-judge; "his family owe a life; he shall die for his namesake!" to render such narratives credible, we must recollect that his mind was often greatly disturbed by fits of the stone, and still more by intemperance. burnet, speaking of his behavior at this time, says, "he was perpetually either drunk or in a rage, liker a fury than the zeal of a judge." i shall conclude my sketch of jeffreys as a criminal judge with his treatment of a prisoner whom he was eager to hang, but who escaped with life. this was prideaux, a gentleman of fortune in the west of england, who had been apprehended on the landing of monmouth, for no other reason than that his father had been attorney general under cromwell. a reward of five hundred pounds, with a free pardon, was offered to any witnesses who would give evidence against him; but none could be found, and he was discharged. afterwards, two convicts were prevailed upon to say that they had seen him take some part in the insurrection, and he was again cast into prison. his friends, alarmed for his safety, though convinced of his innocence, tried to procure a pardon for him, when they were told "that nothing could be done for him, as the king had given him to the chief justice," (the familiar phrase for the grant of an estate about to be forfeited.) a negotiation was then opened with jennings, the avowed agent of jeffreys for the sale of pardons, and the sum of fifteen thousand pounds was actually paid to him by a banker for the deliverance of a man whose destruction could not be effected by any perversion of the formalities of law.[ ] there is to be found only one defender of these atrocities. "i have indeed sometimes thought," says the author of a caveat against the whigs, "that in jeffreys's western circuit justice went too far before mercy was remembered, though there was not above a fourth part executed of what were convicted. but when i consider in what manner several of those lives then spared were afterwards spent, i cannot but think a little more _hemp_ might have been usefully employed upon that occasion."[ ] a great controversy has arisen, "who is chiefly to be blamed--jeffreys or james?" sheffield, duke of buckingham, declares that "the king never forgave the cruelty of the judge in executing such multitudes in the west against his express orders." and reliance is placed by hume on the assertion of roger north, that his brother, the lord keeper, going to the king and moving him "to put a stop to the fury which was in no respect for his service, and would be counted a carnage, not law or justice, orders went to mitigate the proceedings." i have already demonstrated that this last assertion is a mere invention,[ ] and though it is easy to fix deep guilt on the judge, it is impossible to exculpate the monarch. burnet says that james "had a particular account of his proceedings writ to him every day, and he took pleasure to relate them in the drawing-room to foreign ministers, and at his table, calling it jeffreys's campaign; speaking of all he had done in a style that neither became the majesty nor the mercifulness of a great prince." jeffreys himself, (certainly a very suspicious witness,) when in the tower, declared to tutchin that "his instructions were much more severe than the execution of them; and that at his return he was snubbed at court for being too merciful." and to dr. scott, the divine who attended him on his death bed, he said, "whatever i did then i did by express orders; and i have this further to say for myself, that i was not half bloody enough for him who sent me thither." we certainly know from a letter written to him by the earl of sunderland at dorchester, that "the king approved entirely of all his proceedings." and though we cannot believe that he stopped short of any severity which he thought would be of service to himself, there seems no reason to doubt (if that be any palliation) that throughout the whole of these proceedings his object was to please his master, whose disposition was now most vindictive, and who thought that, by such terrible examples, he should secure to himself a long and quiet reign.[ ] the two were equally criminal,[ ] and both had their reward. but in the first instance, and till the consequences of such wickedness and folly began to appear, they met each other with mutual joy and congratulations. jeffreys returning from the west, by royal command stopped at windsor castle. he arrived there on the th of september; and after a most gracious reception, the great seal was immediately delivered to him with the title of lord chancellor. we learn from evelyn that it had been three weeks in the king's personal custody. "about six o'clock came sir dudley north and his brother roger north, and brought the great seal from my lord keeper, who died the day before. the king went immediately to council, every body guessing who was most likely to succeed this great officer; most believed it would be no other than lord chief justice jeffreys, who had so rigorously prosecuted the late rebels, and was now gone the western circuit to punish the rest that were secured in the several counties, and was now near upon his return." the london gazette of october , , contains the following notice: "_windsor, sept. ._ "his majesty taking into his royal consideration the many eminent and faithful services which the right honorable george lord jeffreys, of wem, lord chief justice of england, has rendered the crown, as well in the reign of the late king, of ever blessed memory, as since his majesty's accession to the throne, was pleased this day to commit to him the custody of the great seal of england, with the title of lord chancellor." the new lord chancellor, having brought the great seal with him from windsor to london, had near a month to prepare for the business of the term. he had had only a very slender acquaintance with chancery proceedings, and he was by no means thoroughly grounded in common-law learning; but he now fell to the study of equity pleading and practice, and though exceedingly inferior to his two immediate predecessors in legal acquirements, his natural shrewdness was such that, when entirely sober, he contrived to gloss over his ignorance of technicalities, and to arrive at a right decision. he was seldom led into temptation by the occurrence of cases in which the interests of political parties, or religious sects, were concerned; and, as an equity judge, the multitude rather regarded him with favor. the public and the profession were much shocked to see such a man at the head of the law; but as soon as he was installed in his office, there were plenty ready enough to gather round him, and, suppressing their real feelings, to load him with flattery and to solicit him for favors. evelyn, who upon his appointment as chief justice, describes him as "most ignorant, but most daring," now assiduously cultivated his notice; and, having succeeded in getting an invitation to dine with him, thus speaks of him: "_ st oct., ._ "i dined at our great lord chancellor jeffreys's, who used me with much respect. this was the late chief justice, who had newly been the western circuit to try the monmouth conspirators, and had formerly done such severe justice amongst the obnoxious in westminster hall, for which his majesty dignified him by creating him first a baron, and now lord chancellor; is of an assured and undaunted spirit, and has served the court interest on all hardiest occasions; is of nature civil, and a slave of the court." the very first measure which james proposed to his new chancellor was, literally, the hanging of an alderman. he was still afraid of the mutinous spirit of the city, which, without some fresh terrors, might again break out, although the charters were destroyed; and no sufficient atonement had yet been made for the hostility constantly manifested by the metropolis to the policy of his family for half a century. his majesty proposed that alderman clayton, a very troublesome agitator, should be selected as the victim. the chancellor agreed that "it was very fit an example should be made, as his majesty had graciously proposed; but if it were the same thing to his majesty, he would venture to suggest a different choice. alderman clayton was a bad subject, but alderman cornish was still more troublesome, and more dangerous." the king readily acquiesced, and alderman cornish was immediately brought to trial before a packed jury, and executed on a gibbet erected in cheapside, on pretence that some years before he had been concerned in the ryehouse plot. the apologists of jeffreys say (and as it is the only alleged instance of his gratitude i have met with, i have great pleasure in recording it) that he was induced to save sir robert clayton from recollecting that this alderman had been his pot companion, and had greatly assisted him in obtaining the office of common serjeant. monmouth's rebellion in england, and argyle's in scotland, being put down, and the city of london reduced to subjection, james expressed an opinion, in which the chancellor concurred, that there was no longer any occasion to disguise the plan of governing by military force, and of violating at pleasure the solemn acts of the legislature. parliament reassembled on the th of november, when jeffreys took his seat on the woolsack. the king alone (as had been concerted) addressed the two houses, and plainly told them that he could rely upon "nothing but a good force of well disciplined troops in constant pay," and that he was determined to employ "officers in the army, not qualified by the late tests, for their employments." when the king had withdrawn, lord halifax rose, and said, sarcastically, "they had now more reason than ever to give thanks to his majesty, since he had dealt so plainly with them, and discovered what he would be at." this the chancellor thought fit to take as a serious motion, and immediately put the question, as proposed by a noble lord, "that an humble address be presented to his majesty to thank him for his gracious speech from the throne." no one ventured to offer any remark, and it was immediately carried, _nemine dissentiente_. the king returned a grave answer to the address, "that he was much satisfied to find their lordships were so well pleased with what he said, and that he would never offer any thing to their house that he should not be convinced was for the true interest of the kingdom." but the lords very soon discovered the false position in which they had placed themselves, and the bishops were particularly scandalized at the thought that they were supposed to have thanked the king for announcing a principle upon which papists and dissenters might be introduced into every civil office, and even into ecclesiastical benefices. accordingly, compton, bishop of london, moved "that a day might be appointed for taking his majesty's speech into consideration," and said "that he spoke the united sentiments of the episcopal bench when he pronounced the test act the chief security of the established church." this raised a very long and most animated debate, at which king james, to his great mortification, was present. sunderland, and the popishly inclined ministers, objected to the regularity of the proceeding, urging that, having given thanks for the speech, they must be taken to have already considered it, and precluded themselves from finding fault with any part of it. the lords halifax, nottingham, and mordaunt, on the other side, treated with scorn the notion that the constitution was to be sacrificed to a point of form, and, entering into the merits of the question, showed that if the power which the sovereign now, for the first time, had openly claimed were conceded to him, the rights, privileges, and property of the nation lay at his mercy. at last the lord chancellor left the woolsack, and not only bitterly attacked the regularity of the motion after a unanimous vote of thanks to the king for his speech, but gallantly insisted on the legality and expediency of the power of the sovereign to dispense with laws for the safety and benefit of the state. no lord chancellor ever made such an unfortunate exhibition. he assumed the same arrogant and overbearing tone with which he had been accustomed from the bench to browbeat juries, counsel, witnesses, and prisoners, and he launched out into the most indecent personalities against his opponents. he was soon taught to know his place, and that frowns, noise, and menaces would not pass for arguments there. while he spoke he was heard with marked disgust by all parts of the house; when he sat down, being required to retract his words by those whom he had assailed, and finding all the sympathies of the house against him, he made to each of them an abject apology, "and he proved by his behavior that insolence, when checked, naturally sinks into meanness and cowardice." the ministerialists being afraid to divide the house, monday following, the d of november, was fixed for taking the king's speech into consideration. but a similar disposition having been shown by the other house, before that day parliament was prorogued, and no other national council met till the convention parliament, after the landing of king william. james, far from abandoning his plans, was more resolute to carry them into effect. the earl of rochester, his own brother-in-law, and others who had hitherto stood by him, having in vain remonstrated against his madness, resigned their offices; but jeffreys still recklessly pushed him forward in his headlong career. in open violation of the test act, four catholic lords were introduced into the cabinet, and one of them, lord bellasis, was placed at the head of the treasury in the room of the protestant earl of rochester. among such colleagues the lord chancellor was contented to sit in council, and the wonder is that he did not follow the example of sunderland and other renegades, who at this time, to please the king, professed to change their religion, and were reconciled to the church of rome. perhaps, with his peculiar sagacity, jeffreys thought it would be a greater sacrifice in the king's eyes to appear to be daily wounding his conscience by submitting to measures which he must be supposed inwardly to condemn. as a grand _coup d'état_, he undertook to obtain a solemn decision of the judges in favor of the dispensing power,[ ] and for this purpose a fictitious action was brought against sir edward hales, the lieutenant of the tower, an avowed roman catholic, in the name of his coachman, for holding an office in the army without having taken the oath of supremacy, or received the sacrament according to the rites of the church of england, or signed the declaration against transubstantiation. jeffreys had put the great seal to letters patent, authorizing him to hold the office without these tests, "_non obstante_" the act of parliament. this dispensation was pleaded in bar of the action, and upon a demurrer to the plea, after a sham argument by counsel, all the judges except one (baron street) held the plea to be sufficient, and pronounced judgment for the defendant. it was now proclaimed at court that the law was not any longer an obstacle to any scheme that might be thought advisable. the earl of castlemaine was sent to rome, regularly commissioned as ambassador to his holiness the pope, a papal nuncio being reciprocally received at st. james's. but assuming that religion was not embraced in the negotiations between the two courts, however impolitic the proceeding might be, i do not think that the king and the chancellor are liable to be blamed, as they have been by recent historians, for having in this instance violated acts of parliament. if all those are examined which had passed from the commencement of the reformation down to the "bill of rights," it will probably be found that none of them can be applied to a mere diplomatic intercourse with the pope, however stringent their provisions may be against receiving bulls or doing any thing in derogation of the king's supremacy.[ ] there can be no doubt of the illegality of the next measure of the king and the chancellor. the court of high commission was revived with some slight modification, although it had been abolished in the reign of charles i. by an act of parliament, which forbade the erection of any similar court; and jeffreys, having deliberately put the great seal to the patent creating this new arbitrary tribunal, undertook to preside in it. the commissioners were vested with unlimited jurisdiction over the church of england, and were empowered, even in cases of suspicion, to proceed inquisitorially, like the abolished court, "_notwithstanding any law or statute to the contrary_." the object was to have all ecclesiastics under complete control, lest any of them should oppose the intended innovations in religion.[ ] jeffreys selected as his first victims, sharp, rector of st. giles's, called the "railing parson," who had made himself very obnoxious to the government by inveighing against the errors of popery--and compton, bishop of london, his diocesan, who had raised the storm against the dispensing power in the house of lords. a mandate was issued to the bishop to suspend the rector, and this being declined on the ground that no man can be lawfully condemned till he has been heard in his defence, both were summoned before the high commission. the bishop appearing, and being asked by the chancellor why he had not obeyed the king's orders by suspending dr. sharp, prayed time to prepare his defence, as his counsel were on the circuit, and he begged to have a copy of the commission. a week's time was given; but as to the commission, he was told "all the coffee-houses had it for a penny." on the eighth day the business was resumed; but the bishop still said he was unprepared, having great difficulty to procure a copy of the commission; when the chancellor made him a bantering apology. "my lord, in telling you our commission was to be seen in every coffee-house, i did not speak with any design to reflect on your lordship, as if you were a haunter of coffee-houses. i abhor the thoughts of it!" a further indulgence of a fortnight was granted. at the day appointed, the bishop again appeared with four doctors of the civil law, who were so frightened, that they hardly dared to say a word for him; but he himself firmly, though mildly, argued, "that he had acted _jurisperitorum consilio_, and could not have had any bad motive; that he should not have been justified in obeying an illegal order; that he had privately recommended to dr. sharp not to preach; that this advice had been followed, so that the king's wish was complied with; and that if he had committed any fault, he ought to be tried for it before his archbishop and brother bishops." several of the commissioners were inclined to let him off with an admonition; but jeffreys obtained and pronounced sentence of _suspension during the king's pleasure_, both on the bishop and the rector.[ ] there was another political trial where justice was done to the accused, although jeffreys presided at it. a charge was brought against lord delamere, the head of an ancient family in cheshire, that he had tried to excite an insurrection in that county in aid of monmouth's rebellion. an indictment for high treason being found against him, he was brought to trial upon it before jeffreys, as lord high steward, and thirty peers-triers. the king was present, and was very desirous of a conviction, as lord delamere, when a member of the house of commons, had taken an active part in supporting the exclusion bill. jeffreys did his best to gratify this wish. according to the habit he had lately acquired in the west, he at first tried to induce the noble prisoner to confess, in the hope of pardon "from the king's known clemency." "my lord," said he, "if you are conscious to yourself that you are guilty of this heinous crime, give glory to god, make amends to his vicegerent the king, by a plain and full discovery of your guilt, and do not, by an obstinate persisting in the denial of it, provoke the just indignation of your prince, who has made it appear to the world that his inclinations are rather to show mercy than inflict punishment." lord delamere, to ease his mind from the anxiety to know whether the man who so spoke was to pronounce upon his guilt or innocence, said, "i beg your grace would please to satisfy me whether your grace be one of my judges in concurrence with the rest of the lords." _l. h. steward._--"no, my lord, i am judge of the court, but i am none of your triers."[ ] a plea to the jurisdiction being put in, lord delamere requested his grace to advise with the other peers upon it, as it was a matter of privilege. _l. h. steward._--"good my lord, i hope you that are a prisoner at the bar are not to give me direction who i should advise with, or how i should demean myself here." this plea was properly overruled, and not guilty pleaded, when his grace, to prejudice the peers-triers against the noble prisoner as a notorious exclusionist, delivered an inflammatory address to them before any evidence was given. to create a further prejudice, poor lord howard was called to repeat once more his oft-told tale of the ryehouse plot, with which it was not pretended that the prisoner had any connection. the charge in the indictment was only supported by one witness, who himself had been in the rebellion, and who swore that lord delamere, at a time and place which he specified, had sent a message by him to monmouth, asking a supply of money to maintain ten thousand men to be levied in cheshire against king james. an _alibi_ was clearly proved. yet his grace summed up for a conviction, and took pains, "for the sake of the numerous and great auditory, that a mistake in point of law might not go unrectified, which seemed to be urged with some earnestness by the noble lord at the bar, _that there is a necessity there should be two positive witnesses to convict a man of treason_." to the honor of the peerage of england, there was a unanimous verdict of acquittal. james himself even allowed this to be right, wreaking all his vengeance on the witness for not having given better evidence, and swearing that he would have him first convicted of perjury, and then hanged for treason. jeffreys seems to have struggled hard to behave with moderation on this trial; but his habitual arrogance from time to time broke out, and must have created a disgust among the peers-triers very favorable to the prisoner. jeffreys, still pretending to be a strong protestant, eagerly assisted the king in his mad attempt to open the church and the universities to the intrusion of the catholics. the fellows of magdalen college, oxford, having disobeyed the royal mandate to elect, as head of their college, anthony farmer, who was not qualified by the statutes, and was a man of infamous character, and having chosen the pious and learned hough, were summoned before the court of ecclesiastical commission. jeffreys observed that dr. fairfax, one of their number, had not signed the answer of the college to the charge of disregarding the king's recommendation. fairfax asking leave to explain his reasons for declining to sign the answer, jeffreys thought that he was willing to conform, and exclaimed, "ay, this looks like a man of sense, and a good subject. let's hear what he will say." _fairfax._--"i don't object to the answer, because it is the vindication of my college: i go further; and as, according to the rules of the ecclesiastical courts, a libel is given to the party that he may know the grounds of his accusation, i demand that libel; for i do not know otherwise wherefore i am called here, and besides, this affair should be discussed in westminster hall." _jeffreys._--"you are a doctor of _divinity_, not of _law_." _fairfax._--"by what authority do you sit here?" _jeffreys._--"pray, what commission have you to be so impudent in court? this man ought to be kept in a dark room. why do you suffer him without a guardian? why did you not bring him to me? pray let my officers seize him." three members of the ecclesiastical commission were sent to oxford to represent that formidable body, and they annulled the election of hough, expelled the refractory fellows, and made magdalen college, for a time, a popish establishment--the court in london, under the presidency of jeffreys, confirming all their proceedings. the lord chancellor next involved the king in the prosecution of the seven bishops, which, more than any other act of misrule during his reign, led to his downfall.[ ] on the th of april, , a new "declaration of indulgence" came out under the great seal; and, that it might be the more generally known and obeyed, an order was sent from the council to all bishops in england, enjoining that it should be read by the clergy in all churches and chapels within their dioceses during divine service. a petition, signed by sancroft, the archbishop, and six other prelates, was laid before the king, praying in respectful language that the clergy might be excused from reading the declaration; not because they were wanting in duty to the sovereign, or in tenderness to the dissenters, but because it was founded upon the dispensing power, which had often been declared illegal in parliament, and on that account they could not, in prudence, honor, or conscience, be such parties to it as the reading of it in the church would imply. even the earl of sunderland and father peter represented to the king the danger of arraying the whole church of england against the authority of the crown, and advised him that the bishops should merely be admonished to be more compliant. but with the concurrence of jeffreys he resolved to visit them with condign punishment, and they were ordered to appear before the council, with a view to obtain evidence against them, as the petition had been privately presented to the king. when they entered the council chamber, jeffreys said to them, "do you own the petition?" after some hesitation, the archbishop confessed that he wrote it, and the bishops, that they signed it. _jeffreys._--"did you publish it?" they, thinking he referred to the _printing_ of it, of which the king had loudly complained, denied this very resolutely; but they admitted that they had delivered it to the king at whitehall palace, in the county of middlesex. this was considered enough to fix them with a publication, in point of law, of the supposed libel; and jeffreys, after lecturing them on their disloyalty, required them to enter into a recognizance to appear before the court of king's bench, and answer the high misdemeanor of which they were guilty. they insisted that, according to the privileges of the house of peers, of which they were members, they could not lawfully be committed, and were not bound to enter into the required recognizance. jeffreys threatened to commit them to the tower as public delinquents. _archbishop._--"we are ready to go whithersoever his majesty may be pleased to send us. we hope the king of kings will be our protector and our judge. we fear nought from man; and having acted according to law and our consciences, no punishment shall ever be able to shake our resolutions." if this struggle could have been foreseen, even jeffreys would have shrunk from the monstrous impolicy of sending these men to jail, on what would be considered the charge of temperately exercising a constitutional right in defence of the protestant faith, so dear to the great bulk of the nation; but he thought it was too late to resile. he therefore, with his own hand, drew a warrant for their commitment, which he signed, and handed round the board. it was signed by all the councillors present, except father peter, whose signature the king excused, to avoid the awkward appearance of protestant bishops being sent to jail by a jesuit. an account of their trial will be found in the next chapter; but there are some circumstances connected with their acquittal in which jeffreys personally appears. seeing how he had acquired such immense favor, there were other lawyers who tried to undermine him by his own arts. one of the most formidable of these was sir john trevor, master of the rolls, who, some authors say, certainly would have got the great seal had james remained longer on the throne, but whom jeffreys had hitherto kept down by reversing his decrees. the chancellor's alarm was now excited by a report that sir william williams (who, from being speaker of the last westminster parliament, and fined ten thousand pounds on the prosecution of the duke of york, was become the caressed solicitor general to james ii.) had a positive promise of the great seal if he could obtain a conviction of the seven bishops.[ ] his brutal conduct to them during the whole trial, which was no doubt reported to jeffreys, would confirm the rumor and increase his apprehensions. the jury having sat up all night without food, fire, or candle, to consider of their verdict, the lord chancellor had, while they were still enclosed, come down to westminster hall next morning, and taken his seat in court. when he heard the immense shout arise which soon made the king tremble on hounslow heath, he smiled and hid his face in his nosegay, "as much," observes the relater of the anecdote, "as to say, mr. solicitor, i keep my seal." however, the part he had taken in sending the bishops to the tower had caused such scandal, that the university of oxford would not have him for their chancellor, although, in the prospect of a vacancy, he had received many promises of support. the moment the news arrived of the death of the old duke of ormond, his grandson was elected to succeed him; and next day a mandate coming from court to elect lord jeffreys, an answer was returned that an election had already taken place, which could not be revoked. suspecting that things were now taking an unfavorable turn, he began privately to censure the measures of the court, and to insinuate that the king had acted against his advice, saying, "it will be found that i have done the part of an honest man, but as for the judges they are most of them rogues." about this time he was present at an event which was considered more than a counterpoise to recent discomfitures, but which greatly precipitated the crisis by taking away the hope of relief by the rightful succession of a protestant heir. being suddenly summoned to whitehall, he immediately repaired thither, and found that the queen had been taken in labor. other councillors and many ladies of quality soon arrived, and they were all admitted into her bedchamber. her majesty seems to have been much annoyed by the presence of the lord chancellor. the king calling for him, he came forward and stood on the step of the bed to show that he was there. she then begged her consort to cover her face with his head and periwig; for she declared "she could not be brought to bed, and have so many men look on her." however, the fright may have shortened her sufferings; for james iii., or "the old pretender," very speedily made his appearance, and the midwife having made the concerted signal that the child was of the wished-for sex, the company retreated. considering the surmises which had been propagated ever since the queen's pregnancy was announced, that it was feigned, and that a suppositious child was to be palmed upon the world, jeffreys was lamentably deficient in duty to the king in not having recommended steps to convince the public from the beginning, beyond all possibility of controversy, of the genuineness of the birth. when the story of the "warming-pan" had taken hold of the public mind, many witnesses were examined before the privy council to disprove it, but it continued an article of faith with thorough anti-jacobites during the two succeeding reigns.[ ] the birth of a son, which the king had so ardently longed for, led to his speedy overthrow. instead of the intrigues between the discontented at home and the prince and princess of orange, hitherto regarded as his successors, being put an end to, they immediately assumed a far more formidable aspect. william, who had hoped in the course of a few years to wield the energies of britain against the dangerous ambition of louis xiv., saw that if he remained quiet he should with difficulty even retain the circumscribed power of stadtholder of the united provinces. he therefore gladly listened to the representations of those who had fled to holland to escape from the tyranny exercised in their native country, or who sent secret emissaries to implore his aid; and he boldly resolved to come to england--not as a military conqueror, but for their deliverance, and to obtain the crown with the assent of the nation. that he and his adherents might be protected against any sudden effort to crush them, a formidable fleet was equipped in the dutch ports, and a considerable army, which had been assembled professedly for a different purpose, was ready on a short notice to be embarked in it. james, who had been amusing himself by making the pope godfather to his son, and had listened with absolute incredulity to the rumors of the coming invasion, suddenly became sensible of his danger, and to avert it was willing to make any sacrifice to please his people. the slender merit of the tardy, forced, and ineffectual concessions which were offered is claimed respectively by the apologists of the king, of jeffreys, and of the earl of sunderland, but seems due to the last of the three. james's infatuation was so transcendent,--he was so struck with judicial blindness,--being doomed to destruction, he was so demented,--that, if let alone, he probably would have trusted with confidence to his divine right and the protection of the virgin, even when william had landed at torbay. as far as i can discover, from the time when jeffreys received the great seal, he never originated any measures, wise or wicked, and without remonstrance, he heartily coöperated in all those suggested by the king, however illegal or mischievous they might be. i do not find the slightest foundation for the assertion that, with all his faults, he had a regard for the protestant religion, which made him stand up in its defence. the "declaration of indulgence," to which he put the great seal, might be imputed to a love of toleration, (to which he was a stranger,) but what can be said of the active part he took in the high commission court, and in introducing roman catholics into the universities and into the church? the earl of sunderland, though utterly unprincipled, was a man of great discernment and courage; he could speak boldly to the king, and he had joined in objecting to the precipitate measures for giving ascendancy to his new religion, which had produced this crisis. his seemingly forced removal from office he himself probably suggested, along with the other steps now taken to appease the people. whoever might first propose the altered policy, jeffreys was the instrument for carrying it into effect, and thereby it lost all its grace and virtue. he took off the suspension of the bishop of london, and, by a _supersedeas_ under the great seal, abolished the high commission court. he annulled all the proceedings respecting magdalen college, and issued the necessary process for reinstating dr. hough and the protestant fellows. he put the great seal to a general pardon. but the reaction was hoped for, above all, from the restoration of the city charters. on the d of october he sent a flattering message to the mayor and aldermen to come to whitehall in the evening, that they might be presented at court by "their old recorder." here the king told them that he was mightily concerned for the welfare of their body, and that at a time when invasion threatened the kingdom, he was determined to show them his confidence in their loyalty by restoring the rights of the city to the state in which they were before the unfortunate _quo warranto_ proceedings had been instituted in the late reign. accordingly, on the following day a meeting of the common council was called at guildhall, and the lord chancellor proceeded thither in his state carriage, attended by his purse-bearer, mace-bearer, and other officers, and after a florid speech, delivered them letters patent under the great seal, which waived all forfeitures, revived all charters, and confirmed all liberties the city had ever enjoyed under the king or any of his ancestors. great joy was manifested; but the citizens could not refrain from showing their abhorrence of the man who brought these glad tidings, and on his return they hissed him and hooted him, and gave him a foretaste of the violence he was soon to experience from an english mob. the forfeited and surrendered charters were likewise restored to the other corporations in england. these popular acts, however, were generally ascribed to fear, and the coalition of all parties, including the preachers of passive obedience, to obtain a permanent redress of grievances by force, continued resolute and unshaken. when william landed, the frightful severities of jeffreys in the west had the effect of preventing the populace from flocking to his standard, but he met with no opposition, and soon persons of great consideration and influence sent in their adhesion to him. when we read in history of civil commotions and foreign invasions, we are apt to suppose that all the ordinary business of life was suspended. but on inquiry, we find that it went on pretty much as usual, unless where interrupted by actual violence. while the prince of orange was advancing to the capital, and james was marching out to give him battle, if his army would have stood true, the court of chancery sat regularly to hear "exceptions" and "motions for time to plead;" and on the very day on which the princess anne fled to nottingham, and her unhappy father exclaimed, in the extremity of his agony, "god help me! my own children have forsaken me," the lord chancellor decided that "if an administrator pays a debt due by bond before a debt due by a decree in equity, he is still liable to pay the debt due by the decree."[ ] change of dynasty was not yet talked of, and the cry was for "a free parliament." to meet this, the king resolved to call one in his own name; and the last use which jeffreys made of the great seal was by sealing writs for the election of members of the house of commons, who were ordered to meet on the th of january following. this movement only infused fresh vigor into the prince of orange, who now resolved to bring matters to a crisis; and james, finding himself almost universally deserted, as the most effectual way, in his judgment, of annoying his enemies, very conveniently for them, determined to leave the kingdom. preparatory to this, he had a parting interview with jeffreys, to whom he did not confide his secret; but he obtained from him all the parliamentary writs which had not been issued to the sheriffs, amounting to a considerable number, and these, with his own hand, he threw into the fire, so that a lawful parliament might not be assembled when he was gone. to increase the confusion, he required jeffreys to surrender the great seal to him,--having laid the plan of destroying it,--in the belief that without it the government could not be conducted. all things being prepared, and father peter and the earl of melfort having been informed of his intentions, which he still concealed from jeffreys, on the night of the th of december, james, disguised, left whitehall, accompanied by sir edward hales, whom he afterwards created earl of tenterden. london bridge (which they durst not cross) being the only one then over the thames, they drove in a hackney-coach to the horse ferry, westminster, and as they crossed the river with a pair of oars, the king threw the great seal into the water, and thought he had sunk with it forever the fortunes of the prince of orange. at vauxhall they found horses in readiness for them, and they rode swiftly to feversham, where they embarked for france. instead of narrating the adventures of the monarch, when he was intercepted at feversham, we must confine ourselves to what befell the unhappy ex-chancellor. he heard early next morning of the royal flight, and was thrown into a state of the greatest consternation. he was afraid of punishment from the new government which was now to be established, and being asked by a courtier if he had heard "what the _heads_ of the prince's declaration were," he answered, "i am sure that _my head_ is one, whatever the rest may be." he dreaded still more the fury of the mob, of which the most alarming accounts were soon brought him. in the existing state of anarchy, almost the whole population of the metropolis crowded into the streets in quest of intelligence; the excitement was unexampled; there was an eager desire to prevent the king's evil councillors from escaping along with him; and many bad characters, under a pretence of a regard for the protestant religion, took the opportunity to gratify their love of violence and plunder. the first object of vengeance was father peter; but it was found that, in consequence of the information of the king's intentions conveyed to him and the earl of melfort, they had secretly withdrawn the day before, and were now in safety. the pope's nuncio was rescued from imminent peril by the interposition of the lords of the council, who had met, and, exercising temporarily the powers of government, were striving to preserve the public tranquillity. the next victim demanded was jeffreys, who (no one knowing that the great seal had been taken from him) still went by the name of "the chancellor," and who, of all professing protestants, was the most obnoxious to the multitude. he retired early in the day from his house in duke street to the obscure dwelling of a dependent in westminster, near the river side, and here, lying concealed, he caused preparations to be made for his escape from the kingdom. it was arranged that a coal ship which had delivered her cargo should clear out at the custom house as for her return to newcastle, and should land him at hamburg. to avoid, as he thought, all chance of being recognised by those who had seen him in ermine or gold-embroidered robes, with a long white band under the chin, his collar of s. s. round his neck, and on his head a full-bottom wig, which had recently become the attribute of judicial dignity, instead of the old-fashioned coif or black velvet cap,--he cut off his bushy eyebrows, wont to inspire such terror, he put on the worn-out dress of a common sailor, and he covered his head with an old tarred hat that seemed to have weathered many a blast. thus disguised, as soon as it was dusk he got into a boat; and the state of the tide enabling him to shoot london bridge without danger, he safely reached the coal ship lying off wapping. here he was introduced to the captain and the mate, on whose secrecy he was told he might rely; but, as they could not sail till next day, when he had examined his berth, he went on board another vessel that lay at a little distance, there to pass the night. if he had not taken this precaution, he would have been almost immediately in the power of his enemies. the mate, without waiting to see what became of him, hurried on shore, and treacherously gave information to some persons who had been in pursuit of him, that he was concealed in the newcastle collier. they applied to justices of the peace in the neighborhood for a warrant to arrest him, which was refused, on the ground that no specific charge was sworn against him. they then went to the lords of the council, whom they found sitting, and who actually gave them a warrant to apprehend him for high treason, under the belief that the safety of the state required his detention. armed with this, they returned to the coal ship in which he had taken his passage, but he was not there, and the captain, a man of honor, baffled all their inquiries. he slept securely in the vessel in which he had sought refuge; and had it not been for the most extraordinary imprudence, leading to the belief that he was fated speedily to expiate his crimes, he might have effected his escape. probably with a view of indulging more freely his habit of intemperance, he next morning came ashore, and made his appearance at a little alehouse bearing the sign of "the red cow," in anchor and hope alley, near king edward's stairs, wapping, and called for a pot of ale. when he had nearly finished it, still wearing his sailor's attire, with his hat on his head, he was so rashly confident as to put his head out from an open window to look at the passengers in the street. i must prepare my readers for the scene which follows by relating, in the words of roger north, an anecdote of the behavior of jeffreys to a suitor in the heyday of his power and arrogance. "there was a scrivener of wapping brought to hearing for relief against a _bummery bond_.[ ] the contingency of losing all being showed, the bill was going to be dismissed;[ ] but one of the plaintiff's counsel said that the scrivener was a strange fellow, and sometimes went to church, sometimes to conventicles, and none could tell what to make of him; and it was thought he was a trimmer. at that the chancellor fired; and 'a trimmer!' said he; 'i have heard much of that monster, but never saw one. come forth, mr. trimmer, turn you round, and let us see your shape,' and at that rate talked so long that the poor fellow was ready to drop under him; but at last the bill was dismissed with costs, and he went his way. in the hall one of his friends asked him how he came off. 'came off' said he; 'i am escaped from the terrors of that man's face, which i would scarce undergo again to save my life, and i shall certainly have the frightful impression of it as long as i live.'"[ ] it happened, by a most extraordinary coincidence, that this very scrivener was then walking through anchor and hope alley on the opposite side of the way, and immediately looking towards "the red cow," thought he recollected the features of the sailor who was gazing across towards him. the conviction then flashed upon his mind that this could be no other than the lord chancellor who had so frightened him out of his wits before pronouncing a decree in his favor about the "_bummery bond_." but hardly believing his own senses, he entered the tap-room of the alehouse to examine the countenance more deliberately. upon his entrance, jeffreys must have recognized the "trimmer," for he coughed, turned to the wall, and put the quart pot before his face. an immense multitude of persons were in a few minutes collected round the door by the proclamation of the scrivener that the pretended sailor was indeed the wicked lord chancellor jeffreys. he was now in the greatest jeopardy, for, unlike the usual character of the english mob, who are by no means given to cruelty, the persons here assembled were disposed at first to tear him limb from limb, and he was only saved by the interposition of some of the more considerate, who suggested that the proper course would be to take him before the lord mayor. the cry was raised, "to the lord mayor's!" but before he could be secured in a carriage to be conveyed thither, they assaulted and pelted him, and might have proceeded to greater extremities if a party of the train-bands had not rescued him from their fury. they still pursued him all the way with whips, and halters, and cries of "vengeance! justice! justice!" although he lay back in the coach, he could still be discovered in his blue jacket, and with his sailor's hat flapped down upon his face. the lord mayor, sir john chapman, a nervous, timid man, who had stood in tremendous awe of the lord chancellor, could not now see him, disguised as a sailor, without trepidation; and instead of ordering him to stand at the bar of his justice room, with much bowing and scraping, and many apologies for the liberty he was using, requested that his lordship would do him the honor to dine with him, as, it being now past twelve o'clock, he and the lady mayoress were about to sit down to dinner. jeffreys, though probably with little appetite, was going to accept the invitation, when a gentleman in the room exclaimed, "the lord chancellor is the lord mayor's prisoner, not his guest, and now to harbor him is treason, for which any one, however high, may have to answer with his own blood." the lord mayor swooned away, and died (it is said of apoplexy) soon after. the numbers and violence of the mob had greatly increased from the delay in examining the culprit, and they loudly threatened to take the law into their own hand. some were for examining him before an alderman, and leading him out by a back way for that purpose; but he himself showed most prudence by advising that, without any previous examination, he should be committed to the tower for safe custody, and that two other regiments of the train-bands should be ordered up to conduct him thither. in the confusion, he offered to draw the warrant for his own commitment. this course was followed, but was by no means free from danger, the mob defying the matchlocks and pikes of the soldiers, and pressing round the coach in which the noble prisoner was carried, still flourishing the whips and halters, and expressing their determined resolution to execute summary justice upon him for the many murders he had committed. seeing the imminent danger to which he was exposed, and possibly conscience struck when he thought he was so near his end, he lost all sense of dignity and all presence of mind. he held up his imploring hands, sometimes on one side of the coach, and sometimes on the other, exclaiming, "for the lord's sake, keep them off! for the lord's sake, keep them off!" oldmixon, who was an eye-witness of this procession, and makes loud professions of compassion for malefactors, declares that he saw these agonizing alarms without pity. the difficulty was greatest in passing the open space on tower hill. but at length the carriage passed the drawbridge, and the portcullis descended. within all was still. jeffreys was courteously received by lord lucas, recently appointed lieutenant, and in a gloomy apartment, which he never more left, he reflected in solitude on the procession which had just terminated, so different from those to which he had been accustomed for some years on the first day of each returning term, when, attended by the judges and all the grandees of the law, he had moved in state to westminster hall, the envy and admiration of all beholders. a regular warrant for his commitment was the same night made out by the lords of the council, and the next day a deputation from their body, consisting of lords north, grey, chandos and ossulston, attended to examine him at the tower. four questions were asked him. . "what he had done with the great seal of england." he answered "that he had delivered it to the king on the saturday before at mr. cheffnel's, no person being present, and that he had not seen it since." he was next asked, . "whether he had sealed all the writs for the parliament, and what he had done with them." "to the best of his remembrance," he said, "the writs were all sealed and delivered to the king," (suppressing that he had seen the king throw a great many of them in the fire.) . "had he sealed the several patents for the then ensuing year?" he declared "that he had sealed several patents for the new sheriffs, but that he could not charge his memory with the particulars." lastly, he was asked "whether he had a license to go out of the kingdom." and to this he replied, "that he had several licenses to go beyond sea, which were all delivered to sir john friend." he subscribed these answers with an affirmation that "they were true upon his honor," and the lords withdrew. but no sympathy did he meet with from any quarter, and he was now reproachfully spoken of even by the king. the news of the outbreak against him coming speedily to feversham, the fugitive monarch, who then meditated an attempt to remount his throne, thought that his chancellor might possibly be accepted by the nation as a scape-goat, and laid upon him the great errors of his reign. it happened, strangely enough, that the inn to which james had been carried when captured off sheerness, was kept by a man on whom jeffreys, for some supposed contempt of court, had imposed a very heavy fine, which had not yet been levied. complaining of this arbitrary act to his royal guest,--who had admitted him to his presence, and had asked him, in royal fashion, "his name, his age, and his history,"--james desired him to draw a discharge as ample as he chose; and, establishing a precedent, which has been often followed since, for writing in a seemingly private and confidential document what is intended afterwards to be communicated to the public, he subjoined to his signature these remarkable words, which were immediately proclaimed in feversham and transmitted to london: "i am sensible that my lord chancellor hath been a very ill man, and hath done very ill things." jeffreys was assailed by the press in a manner which showed how his cruelties had brutalized the public mind. a poetical letter, addressed to him, advising him to cut his own throat, thus concluded: "i am your lordship's obedient servant in any thing of this nature. from the little house over against tyburn, where the people are almost dead with expectation of you." this was followed by "a letter from hell from lord ch----r jeffreys to l---- c---- b---- w----d." his "confession," hawked about the streets, contained an exaggerated statement of all the bad measures of the latter part of the preceding and of the present reign. then came his "last will and testament," commencing, "in the name of ambition, the only god of our setting and worshipping, together with cruelty, perjury, pride, insolence, &c., i, george jeffreys, being in sound and perfect memory, of high commissions, _quo warrantos_, dispensations, pillorizations, floggations, gibitations, barbarity, butchery, &c., do make my last will," &c. here is the concluding legacy: "item, i order an ell and a half of fine cambric to be cut into handkerchiefs for drying up all the wet eyes at my funeral; together with half a pint of burnt claret for all the mourners in the kingdom." when he had been some weeks in confinement, he received a small barrel, marked "colchester oysters," of which, ever since his arrival in london when a boy, he had been particularly fond. seeing it, he exclaimed--"well, i have some friends left still;" but on opening it, the gift was--a halter! an actual serious petition was received by the lords of the council of england from "the widows and fatherless children in the west," beginning, "we, to the number of a thousand and more widows and fatherless children of the counties of dorset, somerset, and devon; our dear husbands and tender fathers having been so tyrannously butchered and some transported; our estates sold from us, and our inheritance cut off, by the severe and brutish sentence of george lord jeffreys, now we understand in the tower of london, a prisoner," &c. after enumerating some of his atrocities, and particularly dwelling upon his indecent speech (which i may not copy) to a young lady who asked the life of her lover, convicted before him, the petitioners thus concluded:--"these, with many hundred more tyrannical acts, are ready to be made appear in the said counties by honest and credible persons, and therefore your petitioners desire that the said george jeffreys, late lord chancellor, the vilest of men, may be brought down to the counties aforesaid, where we the good women of the west shall be glad to see him, and give him another manner of welcome than he had there three years since." meanwhile, the great seal, the _clavis regni_, the emblem of sovereign sway, which had been thrown into the thames that it might never reach the prince of orange, was found in the net of a fisherman near lambeth, and was delivered by him to the lords of the council, who were resolved to place it in the hands of the founder of the new dynasty; and james, after revisiting the capital and enjoying a fleeting moment of popularity, had finally bid adieu to england, and was enjoying the munificent hospitality of louis at st. germaine's. the provisional government, in deference to the public voice, issued an order for the more rigorous confinement of the ex-chancellor in the tower, and intimated a resolution that he should speedily be brought to trial for his misdeeds; but, amidst the stirring events which rapidly followed, he was allowed quietly to languish out the remainder of his miserable existence. while the elections were proceeding for the convention parliament--while the two houses were struggling respecting the "abdication" or "desertion" of the throne--while men were occupied with discussing the "declaration of rights"--while preparations were making for the coronation of the new sovereigns--while curiosity was keenly alive in watching their demeanor, and while alarms were spread by the adherence of ireland to the exiled king--the national indignation, which at first burst forth so violently against the crimes of jeffreys, almost entirely subsided, and little desire was evinced to see him punished as he deserved. however, considerable sensation was excited by the news that he was no more. he breathed his last in the tower of london, on the th of april, , at thirty-five minutes past four in the morning. those who take a vague impression of events, without attention to dates, may suppose, from the crowded vicissitudes of his career, that he must have passed his grand climacteric, but he was still only in the forty-first year of his age. on the meeting of the convention parliament, attempts were made to attaint the late chancellor jeffreys, to prevent his heirs from sitting in parliament, and to charge his estates with compensation to those whom he had injured; but they all failed, and no mark of public censure was set upon his memory beyond excepting him, with some other judges, from the act of indemnity passed at the commencement of the new reign. we have no very distinct account of him in domestic life. having lost his first wife, whom he had espoused so generously, within three months from her death he again entered the married state. the object of his choice was the widow of a montgomeryshire gentleman, and daughter of sir thomas bludworth, who had been lord mayor of london, and for many years one of the city representatives. i am sorry to say there was much scandal about the second lady jeffreys, and she presented him prematurely with a full-grown child. it is related that he was once disagreeably reminded of this mistake: when cross-examining a flippant female, he said to her, "madam, you are very quick in your answers." "quick as i am, sir george," cried she, "i was not so quick as your lady." even after the marriage she is still said to have encouraged sir john trevor, m. r., and other lovers, while her husband was indulging in his cups. he had children by both his wives; but of these only one son grew up to manhood, and survived him. this was john, the second lord jeffreys, who has acquired celebrity only by having rivalled his father in the power of drinking, and for having, when in a state of intoxication, interrupted the funeral of dryden, the poet. he was married, as we have seen, to the daughter of the earl of pembroke, but dying in , without male issue, the title of jeffreys happily became extinct. he soon dissipated large estates, which his father, by such unjustifiable means, had acquired in shropshire, buckinghamshire, and leicestershire. in his person jeffreys was rather above the middle stature, his complexion (before it was bloated by intemperance) inclining to fair, and he was of a comely appearance. there was great animation in his eye, with a twinkle which might breed a suspicion of insincerity and lurking malice. his brow was commanding, and he managed it with wonderful effect, whether he wished to terrify or to conciliate. there are many portraits of him, all, from his marked features, bearing a great resemblance to each other, and, it may be presumed, to the original. "he had a set of banterers for the most part near him, as in old time great men kept fools to make them merry. and these fellows, abusing one another and their betters, were a regale to him." but there can be no doubt that he circulated in good society. he was not only much at court, but he exchanged visits with the nobility and persons of distinction in different walks of life. in the social circle, being entirely free from hypocrisy and affectation, from haughtiness and ill-nature, laughing at principle, courting a reputation for profligacy, talking with the utmost freedom of all parties and all men--he disarmed the censure of the world, and, by the fascination of his manners, while he was present, he threw an oblivion over his vices and his crimes. on one occasion, dining in the city with alderman duncomb, the lord treasurer and other great courtiers being of the party, they worked themselves up to such a pitch of loyalty by bumpers to "confusion to the whigs," that they all stripped to their shirts, and were about to get upon a signpost to drink the king's health, when they were accidentally diverted from their purpose, and the lord chancellor escaped the fate which befell sir charles sedley, of being indicted for indecently exposing his person in the public streets. but this frolic brought upon him a violent fit of the stone, which nearly cost him his life. as a civil judge he was by no means without high qualifications, and in the absence of any motive to do wrong, he was willing to do right. he had a very quick perception, a vigorous and logical understanding, and an impressive eloquence. when quite sober, he was particularly good as a nisi prius judge. his summing up, in what is called "the lady ivy's case"--an ejectment between her and the dean and chapter of st. paul's to recover a large estate at shadwell--is most masterly. the evidence was exceedingly complicated, and he gives a beautiful sketch of the whole, both documentary and parol; and, without taking the case from the jury, he makes some admirable observations on certain deeds produced by the lady ivy, which led to the conclusion that they were forged, and to a verdict for the dean and chapter.[ ] considering the systematic form which equity jurisprudence had assumed under his two immediate predecessors, jeffreys must have been very poorly furnished for presiding in chancery. he had practised little before these judges, and none of their decisions were yet in print; so that if he had been so inclined, he had not the opportunity to make himself familiar with the established practice and doctrines of the court. although he must often have betrayed his ignorance, yet with his characteristic boldness and energy he contrived to get through the business without any signal disgrace, and among all the invectives, satires, and lampoons by which his memory is blackened, i find little said against his decrees. he did not promulgate any body of new orders according to recent custom; but, while he held the great seal, he issued separate orders from time to time, some of which were very useful. he first put an end to a very oppressive practice, by which a plaintiff, having filed a frivolous and vexatious bill, might dismiss it on paying merely twenty shillings costs, and he directed that the defendant should be allowed all the costs he had incurred, to be properly ascertained by an officer of the court. he then checked the abuse of staying actions at law for the examination of witnesses abroad, by requiring, before a commission to examine them issued, an affidavit specifying the names of the witnesses, and the facts they were expected to prove. by subsequent orders which he framed, vexatious applications for re-hearings were guarded against, and an attempt was made to get rid of what has ever been the opprobrium of the court--controversies about settling the minutes of a decree after it has been pronounced. i have discovered one benevolent opinion of this cruel judge, and strange to say, it is at variance with that of the humane magistrates who have adorned westminster hall in the nineteenth century. "the prisoner's convict bill" was condemned and opposed by almost all the judges in the reign of william iv., yet even jeffreys was struck with the injustice and inequality of the law, which, allowing the accused to defend himself by counsel "for a two-penny trespass," refuses that aid "where life, estate, honor, and all are concerned," and lamented its existence, while he declared himself bound to adhere to it.[ ] the venerable sages who apprehended such multiplied evils from altering the practice must have been greatly relieved by finding that their objections have proved as unfounded as those which were urged against the abolition of "_peine forte et dure_;" and the alarming innovation, so long resisted, of allowing witnesses for the prisoner to be examined under the sanction of an oath. he has been so much abused, that i began my critical examination of his history in the hope and belief that i should find that his misdeeds had been exaggerated, and that i might be able to rescue his memory from some portion of the obloquy under which it labors; but i am sorry to say, that in my matured opinion, although he appears to have been a man of high talents, of singularly agreeable manners, and entirely free from hypocrisy, his cruelty and his political profligacy have not been sufficiently exposed or reprobated; and that he was not redeemed from his vices by one single solid virtue. chapter xvi. robert wright. i now come to the last of the profligate chief justices of england; for since the revolution they have all been men of decent character, and most of them have adorned the seat of justice by their talents and acquirements, as well as by their virtues. sir robert wright, if excelled by some of his predecessors in bold crimes, yields to none in ignorance of his profession, and beats them all in the fraudulent and sordid vices. he was the son of a respectable gentleman who lived near thetford, in suffolk, and was the representative of an ancient family, long seated at kelverstone, in norfolk; he enjoyed the opportunity of receiving a good education at thetford free grammar school, and at the university of cambridge; and he had the advantage of a very handsome person and agreeable manner. but he was by nature volatile, obtuse, intensely selfish, with hardly a particle of shame, and quite destitute of the faculty of distinguishing what was base from what was honorable. without any maternal spoiling, or the contamination of bad company, he showed the worst faults of childhood, and these ripened, while he was still in early youth, into habits of gaming, drinking, and every sort of debauchery. there was a hope of his reformation when, being still under age, he captivated the affections of one of the daughters of dr. wren, bishop of ely, and was married to her. but he continued his licentious course of life, and, having wasted her fortune, he treated her with cruelty. he was supposed to study the law at an inn of court, but when he was called to the bar he had not imbibed even the first rudiments of his profession. nevertheless, taking to the norfolk circuit, the extensive influence of his father-in-law, which was exercised unscrupulously in his favor, got him briefs, and for several years he had more business than north, (afterwards lord keeper guilford,) a very industrious lawyer, who joined the circuit at the same time. "but withal," says roger, the inimitable biographer, "he was so poor a lawyer that he could not give an opinion upon a written case, but used to bring such cases as came to him to his friend, mr. north, and he wrote the opinion on a paper, and the lawyer copied it and signed under the case as if it had been his own. it run so low with him, that when north was at london, he sent up his cases to him, and had opinions returned by the post; and in the mean time he put off his clients upon pretence of taking more serious consideration." at last the attorneys found him out so completely that they entirely deserted him, and he was obliged to give up practice. by family interest he obtained the lucrative sinecure of "treasurer to the chest at chatham," but by his voluptuous and reckless course of life he got deeper and deeper in debt, and he mortgaged his estate to mr. north for fifteen hundred pounds, the full amount of its value. from some inadvertence, the title deeds were allowed to remain in wright's hands, and being immediately again in want, he applied to sir walter plummer to lend him five hundred pounds on mortgage, offering the mortgaged estate as a security, and asserting that this would be the first charge upon it. the wary sir walter thought he would make himself doubly safe by requiring an affidavit that the estate was clear from all incumbrances. this affidavit wright swore without any hesitation, and he then received the five hundred pounds. but the money being spent, and the fraud being detected, he was in the greatest danger of being sent to jail for debt, and also of being indicted for swindling and perjury. he had only one resource, and this proved available. being a clever mimic, he had been introduced into the circle of parasites and buffoons who surrounded jeffreys, at this time chief justice of the king's bench, and used to make sport for him and his companions in their drunken orgies by taking off the other judges, as well as the most eminent counsel. one day, being asked why he seemed to be melancholy, he took the opportunity of laying open his destitute condition to his patron, who said to him, "as you seem to be unfit for the bar, or any other honest calling, i see nothing for it but that you should become a judge yourself." wright naturally supposed that this was a piece of wicked pleasantry, and when jeffreys had declared that he was never more serious in his life, asked how it could be brought about, for he not only felt himself incompetent for such an office, but he had no interest, and, still more, it so happened, unfortunately, that the lord keeper guilford, who made the judges, was fully aware of the unaccountable lapse of memory into which he had fallen when he swore the affidavit for sir walter plummer, that his estate was clear from all incumbrances, the lord keeper himself being the first mortgagee. _jeffreys, c. j._--"never despair, my boy; leave all that to me." we know nothing more of the intrigue with certainty, till the following dialogue took place in the royal closet. we can only conjecture that in the meanwhile jeffreys, who was then much cherished at court, and was impatient to supersede guilford entirely, had urgently pressed the king that wright might be elevated to the bench as a devoted friend of the prerogative, and that, as the lord keeper had a prejudice against him, his majesty ought to take the appointment into his own hands. but we certainly know that, a vacancy occurring in the court of exchequer, the lord keeper had an audience of his majesty to take his pleasure on the appointment of a new baron, and that he named a gentleman at the bar, in great practice and of good character, as the fittest person to be appointed, thinking that charles would nod assent with his usual easy indifference, when, to his utter amazement, he was thus interrogated: "my lord, what think you of mr. wright? why may not he be the man?" _lord keeper._--"because, sir, i know him too well, and he is the most unfit person in england to be made a judge." _king._--"then it must not be." upon this, the lord keeper withdrew, without having received any other notification of the king's pleasure; and the office remained vacant. again there is a chasm in the intrigue, and we are driven to guess that jeffreys had renewed his solicitation, had treated the objections started to wright as ridiculous, and had advised the cashiering of the lord keeper if he should prove obstinate. the next time that the lord keeper was in the royal presence, the king, opening the subject of his own accord, observed, "good my lord, why may not wright be a judge? he is strongly recommended to me; but i would have a due respect paid to you, and i would not make him without your concurrence. is it impossible, my lord?" _lord keeper._--"sir, the making of a judge is your majesty's choice, and not my pleasure. i am bound to put the seal as i am commanded, whatever the person may be. it is for your majesty to determine, and me, your servant, to obey. but i must do my duty by informing your majesty of the truth respecting this man, whom i personally know to be a dunce, and no lawyer; who is not worth a groat, having spent his estate by debauched living; who is without honesty, having been guilty of wilful perjury to gain the borrowing of a sum of money. and now, sir, i have done my duty to your majesty, and am ready to obey your majesty's commands in case it be your pleasure that this man be a judge." the king thanked the lord keeper, without saying more, but next day there came a warrant under the sign manual for creating the king's "trusty and well-beloved robert wright" a baron of his exchequer, and orders were given for making out the patent in due form; and the detected swindler, knighted, and clothed in ermine, took his place among the twelve judges of england. people were exceedingly shocked when they saw the seat of justice so disgraced; but this might be what jeffreys intended; and one of his first acts, when he himself obtained the great seal, was to promote his _protégé_ from being a baron of the exchequer to be a judge of the court of king's bench. wright continued to do many things which caused great scandal, and, therefore, was dearer than ever to his patron, who would have discarded him if he had shown any symptoms of reformation. he accompanied general jeffreys as _aide de camp_ in the famous "campaign in the west;" in other words, he was joined in commission with him as a judge in the "bloody assize," and, sitting on the bench with him at the trial of lady lisle and the others which followed, concurred in all his atrocities. he came in for very little of the bribery; jeffreys, who claimed the lion's share, tossing him by way of encouragement one solitary pardon, for which a small sum only was expected. but on the death of sir henry beddingfield he was made chief justice of the common pleas; and very soon afterwards, the unexpected quarrel breaking out between sir edward herbert and the government about martial law and the punishment of deserters,[ ] the object being to find some one who by no possibility could go against the government, or hesitate about doing any thing required of him, however base or however bloody, wright was selected as chief justice of the king's bench. unluckily we have no account of the speeches made at any of his judicial installations, so that we do not know in what terms his learning and purity of conduct were praised, or what were the promises which he gave of impartiality and of rigorous adherence to the laws of the realm. on the very day on which he took his seat on the bench he gave good earnest of his servile spirit. the attorney general renewed his motion for an order to execute at plymouth the deserter who had been capitally convicted at reading for deserting his colors. the new chief justice, without entering into reasons, or explaining how he came to differ from the opinion so strongly expressed by his predecessor, merely said, "be it so!" the puisnies now nodded assent, and the prisoner was illegally executed at plymouth under the order so pronounced. confidence was entirely lost in the administration of justice in westminster hall, for all the three common law courts were at last filled by incompetent and corrupt judges. pettifogging actions only were brought in them, and men settled their disputes by arbitration, or by taking the opinion of counsel. the reports during the whole reign of james ii. hardly show a single question of importance settled by judicial decision. thus, having no distinct means of appreciating chief justice wright's demerits as a judge in private causes, we must at once follow him in his devious course as a political judge. the first occasion on which, after his installation, he drew upon himself the eyes of the public was when he was sent down to magdalene college, oxford, for the purpose of turning it into a popish seminary. upon a vacancy in the office of president, the fellows, in the exercise of their undoubted right, had elected the celebrated dr. hough, who had been duly admitted into the office; and the preliminary step to be taken was to annul the election, for the purpose of making way for another candidate, named by the king. there were associated with wright, in this commission, cartwright, bishop of chester, who was ready to be reconciled to rome in the hope of higher preferment, and sir thomas jenner, a baron of the exchequer, a zealous follower in the footsteps of the chief justice of the king's bench. nothing could equal the infamy of their object except the insolence of their behavior in trying to accomplish it. they entered oxford escorted by three troops of cavalry with drawn swords, and, having taken their seats with great parade in the hall of the college, summoned the fellows to attend them. these reverend and gallant divines appeared, headed by their new president, who defended his rights with skill, temper and resolution; steadily maintaining that, by the laws of england, he had a freehold in his office, and in the house and revenues annexed to it. being asked whether he submitted to this royal visitation, he answered:-- "my lords, i do declare here, in the name of myself and the fellows, that we submit to the visitation as far as it is consistent with the laws of the land and the statutes of the college, and no further." _wright, c. j._--"you cannot imagine that we act contrary to the laws of the land; and as to the statutes, the king has dispensed with them. do you think we come here to break the laws?" _hough._--"it does not become me, my lords, to say so; but i will be plain with your lordships. i find that your commission gives you authority to alter the statutes. now, i have sworn to uphold and obey them; i must admit no alteration of them, and by the grace of god never will." he was asked whether one of the statutes of the founder did not require mass to be said in the college chapel; but he answered, "not only was it unlawful, but it had been repealed by the act of parliament requiring the use of the book of common prayer." however, sentence was given that the election of hough was void, and that he be deprived of his office of president. _hough._--"i do hereby protest against all your proceedings, all you have done, or shall hereafter do, in prejudice of me and my right, and i appeal to my sovereign lord the king in his courts of justice." "upon which (says a contemporary account) the strangers and young scholars in the hall gave a _hum_, which so much incensed their lordships that the lord chief justice was not to be pacified, but, charging it upon the president, bound him in a bond of one thousand pounds, and security to the like value, to make his appearance at the king's bench bar on the th of november; and, taking occasion to pun upon the president's name, said to him, "sir, you must not think to _huff_ us." he then ordered the door of the president's house to be broken open by a blacksmith; and a fellow observing, "i am informed that the proper officer to gain possession of a freehold is the sheriff with a _posse comitatus_," wright said, "i pray who is the best lawyer, you or i? your oxford law is no better than your oxford divinity. if you have a mind to a _posse comitatus_, you may have one soon enough." having ejected hough, he issued a mandate for expelling all the contumacious fellows, and insured the expulsion of james from his throne, when the commissioners returned in triumph to london. wright was likewise a member of the ecclesiastical court of high commission, of which jeffreys was president, and he strenuously joined in all the judgments of that illegal and arbitrary tribunal, which, with a _non obstante_, had been revived in the very teeth of an existing act of parliament. he treated with ridicule the scruples of sancroft, the archbishop of canterbury, and others who refused to sit upon it, and he urged the infliction of severe punishment on all who denied its jurisdiction. although he was not a member of the cabinet, he usually heard from the chancellor the measures which had been resolved upon there, and he was ever a willing tool in carrying them into effect. when the clergy were insulted, and the whole country was thrown into a flame, by the fatal order in council for reading the "declaration of indulgence" in all churches and chapels on two successive sundays, he contrived an opportunity of declaring from the bench his opinion that it was legal and obligatory. hearing that the london clergy were almost unanimously resolved to disobey it, he sent a peremptory command to the priest who officiated in the chapel of serjeants' inn to read the declaration with a loud voice; and on the famous sunday, the th of may, , he attended in person, to give weight to the solemnity. however, he was greatly disappointed and enraged to find the service concluded without any thing being uttered beyond what the rubric prescribes. he then indecently, in the hearing of the congregation, abused the priest as disloyal, seditious, and irreligious, for contemning the authority of the head of the church. the clerk ingeniously came forth to the rescue of his superior, and took all the blame upon himself by saying that "he had forgot to bring a copy," and the chief justice, knowing that he had no remedy, was forced to content himself with this excuse.[ ] the seven bishops being committed to the tower, and prosecuted for a conspiracy to defame the king and to overturn his authority, because they had presented a petition to him praying that they might not be forced to violate their consciences and to break the law, wright, the lowest wretch that had ever appeared on the bench in england, was to preside at the most important state trial recorded in our annals. the reliance placed upon his abject subserviency no doubt operated strongly in betraying the government into this insane project of treating as common malefactors the venerable fathers of the protestant church, now regarded by the whole nation with affectionate reverence. the consideration was entirely overlooked by the courtiers, that, from the notorious baseness of his character, his excessive zeal might be revolting to the jury, and might produce an acquittal. it is supposed that a discreet friend of the government had given him a caution to bridle his impetuosity against the accused, as the surest way of succeeding against them; for, during the whole proceeding, he was less arrogant than could have been expected, and it is much more probable that his forbearance arose from obedience to those whom he wished to please, than from any reverence for the sacred character of the defendants or any lurking respect for the interests of justice. they were twice placed at the bar before him--first when they were brought up by the lieutenant of the tower to be arraigned, and afterwards when a jury was empannelled for their trial. on the former occasion the questions were whether they were lawfully in custody, and were then bound to plead. the chief justice checked the opposing counsel with an air of impartiality, saying, "look you, gentlemen, do not fall upon one another, but keep to the matter in hand." and, before deciding for the crown, he said, "i confess it is a case of great weight, and the persons concerned are of great honor and value. i would be as willing as any body to testify my respects and regards to my lords the bishops, if i could see any thing in their objections worth considering. for here is the question, whether the fact charged in the warrant of commitment be such a misdemeanor as is a breach of the peace. i cannot but think it is such a misdemeanor as would have required sureties of the peace, and if sureties were not given, a commitment might follow." he was guilty of gross injustice in refusing leave to put in a plea in abatement; but he thus mildly gave judgment: "we have inquired whether we may reject a plea, and, truly, i am satisfied that we may if the plea is frivolous; and this plea containing no more than has been overruled already, my lords the bishops must now plead guilty or not guilty." when the trial actually came on, he betrayed a partiality for which, in our times, a judge would be impeached; but, compared with himself, so decorous was he, that he was supposed to be overawed by the august audience in whose presence he sat. it was observed that he often cast a side glance towards the thick rows of earls and barons by whom he was watched, and who, in the next parliament, might be his judges. one bystander remarked that "he looked as if all the peers present had halters in their pockets." the counsel for the crown having, in the first instance, failed to prove a publication of the supposed libel in the county of middlesex, and only called upon the court to suppose or presume it, the chief justice said: "i cannot suppose it; i cannot presume any thing. i will ask my brothers their opinion, but i must deal truly with you; i think there is not evidence against my lords the bishops. it would be a strange thing if we should go and presume that these lords did it when there is no sort of evidence to prove that they did it. we must proceed according to forms and methods of law. people may think what they will of me, but i always declare my mind according to my conscience." he was actually directing the jury to acquit, and the verdict of not guilty would have been instantly pronounced, when finch, one of the counsel for the bishops, most indiscreetly said they had evidence on their side to produce. the young gentleman was pulled down by his leaders, who desired the chief justice to proceed. and now his lordship showed the cloven foot, for he exclaimed, "no, no, i will hear mr. finch. go on; my lords the bishops shall not say of me that i would not hear their counsel. i have been already told of being counsel against them, and they shall never say i would not hear counsel for them. such a learned man as mr. finch must have something material to offer. he shall not be refused to be heard by me, i assure you. why don't you go on, mr. finch?" at this critical moment it was announced that the earl of sunderland, the president of the council,--who was present in the royal closet when the bishops presented their petition to the king at whitehall,--was at hand, and would prove a publication in middlesex. the chief justice then said, with affected calmness, but with real exultation, "well, you see what comes of the interruption. i cannot help it; it is your own fault." there being a pause while they waited for the arrival of the earl of sunderland, the chief justice, addressing sir bartholomew shower, one of the counsel for the crown, whom he had stopped at an early stage of the trial, and against whom he had some private spite, observed with great insolence, "sir bartholomew, now we have time to hear your speech, if you will. let us have it." at last the witness arrived, and, proving clearly a publication in middlesex, the case was again launched, and, after hearing counsel on the merits, it was to be left to the determination of the jury. the chief justice, thinking to carry it all his own way, was terribly baffled, not only by the sympathy of the audience with the bishops, which evidently made an impression on the jury, but by the unexpected honesty of one of his brother judges, mr. justice john powell, who had been a quiet man, unconnected with politics, and, being a profound lawyer, had been appointed to keep the court of king's bench from falling into universal contempt. sir robert sawyer beginning to comment upon a part of the declaration which the bishops objected to, "that from henceforth the execution of all laws against nonconformity to the religion established, or the exercise of any other religion, should be suspended," _wright, c. j._, exclaimed, "i must not suffer this; they intend to dispute the king's power of suspending laws." _powell, j._--"my lord, they must necessarily fall upon the point; for, if the king hath no such power, (as clearly he hath not, in my judgment,) the natural consequence will be that this petition is no diminution of the king's regal power, and so not seditious or libellous." _wright, c. j._--"brother, i know you are full of that doctrine; but, however, my lords the bishops shall have no occasion to say that i deny to hear their counsel. brother, you shall have your will for once; i will hear them; let them talk till they are weary." _powell, j._--"i desire no greater liberty to be granted them than what, in justice, the court ought to grant; that is, to hear them in defence of their clients." as the speeches for the defendants proceeded, and were producing a great effect upon all who heard them, the solicitor general made a very irregular remark, accompanied by a fictitious yawn--"we shall be here till midnight." the chief justice, instead of reprimanding him, chimed in with the impertinence, saying, "they have no mind to have an end of the cause, for they have kept it up three hours longer than they need to have done." _serjeant pemberton._--"my lord, this case does require a great deal of patience." _wright, c. j._--"it does so, brother, and the court has had a great deal of patience; but we must not sit here only to hear speeches." in trying to put down another counsel, who was making way with the jury, he observed, "if you say anything more, pray let me advise you one thing--don't say the same thing over and over again; for, after so much time spent, it is irksome to all company, as well as to me." when it came to the reply of williams, the renegade solicitor general, who in his day had been "a whig and something more," he laid down doctrines which called forth the reprobation of judge powell, and even shocked the chief justice himself, for he denied that any petition could lawfully be presented to the king except by the lords and commons in parliament assembled. _powell, j._--"this is strange doctrine. shall not the subject have liberty to petition the king but in parliament? if that be law, the subject is in a miserable case." _wright, c. j._--"brother, let him go on; we will hear him out, though i approve not of his position." the unabashed williams continued, "the lords may address the king in parliament, and the commons may do it; but therefore that the bishops may do it out of parliament, does not follow. i'll tell you what they should have done: if they were commanded to do anything against their consciences, they should have acquiesced till the meeting of the parliament."[ ] (here, says the reporter, the people in court hissed.) _attorney general._--"this is very fine indeed: i hope the court and the jury will take notice of this carriage." _wright, c. j._--"mr. solicitor, i am of opinion that the bishops might petition the king; but this is not the right way. if they may petition, yet they ought to have done it after another manner; for if they may, in this reflective way, petition the king, i am sure it will make the government very precarious." _powell, j._--"mr. solicitor, it would have been too late to stay for a parliament, for the act they conceived to be illegal was to be done forthwith; and if they had petitioned and not shown the reason why they could not obey, it would have have been looked upon as a piece of sullenness, and for that they would have been as much blamed on the other side." the chief justice, to put on a semblance of impartiality, attempted to stop sir bartholomew shower, who wished to follow in support of the prosecution, and, being a very absurd man, was likely to do more harm than good. _wright, c. j._--"i hope we shall have done by and by." _sir b. s._--"if your lordship don't think fit, i can sit down." _wright, c. j._--"no! no! go on, sir bartholomew--you'll say i have spoiled a good speech." _sir b. s._--"i have no good speech to make, my lord; i have but a very few words to say." _wright, c. j._--"well, go on, sir; go on." in summing up to the jury, the chief justice said:-- "this is a case of very great concern to the king and the government on the one side, and to my lords the bishops on the other. it is an information against his grace my lord of canterbury and the other six noble lords, for composing and publishing a seditious libel. at first we were all of opinion that there was no sufficient evidence of publication in the county of middlesex, and i was going to have directed you to find my lords the bishops not guilty; but it happened that, being interrupted in my direction by an honest, worthy, learned gentleman, the king's counsel took the advantage, and, informing the court that they had further evidence, we waited till the lord president came, who told us how the petition was presented by the right reverend defendants to the king at whitehall. then came their learned counsel and told us that my lords the bishops are guardians of the church, and great peers of the realm, and were bound in conscience to act as they did. various precedents have been vouched to show that the kings of england have not the power assumed by his present majesty in issuing the declaration and ordering it to be read; but concessions which kings sometimes make, for the good of the people, must not be made law; for this is reserved in the king's breast to do what he pleases in it at any time. the truth of it is, the dispensing power is out of the case, and i will not take upon me to give any opinion upon it now; for it is not before me. the only question for you is a question of fact, whether you are satisfied that this petition was presented to the king at whitehall. if you disbelieve the lord president, you will at once acquit the defendants. if you give credit to his testimony, the next consideration is, whether the petition be a seditious libel, and this is a question of law on which i must direct you. now, gentlemen, anything that shall disturb the government, or make mischief and a stir among the people, is certainly within the case '_de libellis famosis_;' and i must, in short, give you my opinion--i do take it to be a libel. but this being a point of law, if my brothers have anything to say to it, i suppose they will deliver their opinions." mr. justice holloway, though a devoted friend of the government, had in his breast some feeling of shame, and observed,-- "if you are satisfied there was an ill intention of sedition or the like, you should find my lords the bishops guilty; but if they only delivered a petition to save themselves harmless, and to free themselves from blame, by showing the reason of their disobedience to the king's command, which they apprehend to be a grievance to them, i cannot think it a libel." _wright, c. j._--"look you, by the way, brother, i did not ask you to sum up the evidence, (for that is not usual,) but only to deliver your opinion whether it be a libel or no." _powell, j._--"truly, i cannot see, for my part, anything of sedition or any other crime fixed upon these reverend fathers. for, gentlemen, to make it a libel, it must be false, it must be malicious, and it must tend to sedition. as to the falsehood, i see nothing that is offered by the king's counsel, nor anything as to the malice; it was presented with all the humility and decency becoming subjects when they approach their prince. in the petition, they say, because they conceive the thing that was commanded them to be against the law of the land, therefore they do desire his majesty that he would be pleased to forbear to insist upon it. if there be no such dispensing power, there can be no libel in the petition which represented the declaration founded on such a pretended power to be illegal. now, gentlemen, this is a dispensation with a witness; it amounts to an abrogation and utter repeal of all the laws; for i can see no difference, nor know of any in law, between the king's power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. if this be once allowed of, there will need no parliament: all the legislature will be in the king--which is a thing worth considering--and i leave the issue to god and your own consciences." allybone, however, on whom james mainly relied, foolishly forgetting the scandal which would necessarily arise from the protestant prelates being condemned by a popish judge for trying to save their church from popery, came up to the mark, and, in the sentiments he uttered, must have equalled all the expectations entertained of him by his master:-- "in the first place," said he, "no man can take upon him to write against the actual exercise of the government, unless he have leave from the government. if he does, he makes a libel, be what he writes true or false; if we once come to impeach the government by way of argument, it is argument that makes government or no government. so i lay down, that the government ought not to be impeached by argument, nor the exercise of the government shaken by argument. am i to be allowed to discredit the king's ministers because i can manage a proposition, in itself doubtful, with a better pen than another man? this i say is a libel. my next position is, that no private man can take upon him to write concerning the government at all; for what has any private man to do with the government? it is the business of the government to manage matters relating to the government; it is the business of subjects to mind only their private affairs. if the government does come to shake my particular interest, the law is open for me, and i may redress myself; but when i intrude myself into matters which do not concern my particular interest, i am a libeller. and, truly, the attack is the worse if under a specious pretence; for, by that rule, every man that can put on a good vizard may be as mischievous as he will, so that whether it be in the form of a supplication, or an address, or a petition, let us call it by its true denomination, it is a libel." he then examined the precedents which had been cited, displaying the grossest ignorance of the history as well as constitution of the country; and, after he had been sadly exposed by mr. justice powell, he thus concluded: "i will not further debate the prerogatives of the crown or the privileges of the subject; but i am clearly of opinion that these venerable bishops did meddle with that which did not belong to them; they took upon themselves to contradict the actual exercise of the government, which i think no particular persons may do." the chief justice, without expressing any dissent, merely said, "gentlemen of the jury, have you a mind to drink before you go?" so wine was sent for, and they had a glass apiece; after which they were marched off in custody of a bailiff; who was sworn not to let them have meat or drink, fire or candle, until they were agreed upon their verdict. all that night they were shut up, mr. arnold, the king's brewer, standing out for a conviction till six next morning, when, being dreadfully exhausted, he was thus addressed by a brother juryman: "look at me; i am the largest and the strongest of the twelve, and, before i find such a petition as this a libel, here i will stay till i am no bigger than a tobacco-pipe." the court sat again at ten, when the verdict of not guilty was pronounced, and a shout of joy was raised which was soon reverberated from the remotest parts of the kingdom. one gentleman, a barrister of gray's inn, was immediately taken into custody in court, by order of the lord chief justice, who, with an extraordinary command of temper and countenance, said to him in a calm voice,--"i am as glad as you can be that my lords the bishops are acquitted, but your manner of rejoicing here in court is indecent; you might rejoice in your chamber or elsewhere, and not here. have you any thing more to say to my lords the bishops, mr. attorney?" _a. g._--"no, my lord." _wright, c. j._--"then they may withdraw,"--and they walked off; surrounded by countless thousands, who eagerly knelt down to receive their blessing.[ ] justice holloway was forthwith cashiered, as well as justice powell; and there were serious intentions that chief justice wright should share their fate, as the king ascribed the unhappy result of the trial to his pusillanimity--contrasting him with jeffreys, who never had been known to miss his quarry. this esteemed functionary held the still more important office of lord high chancellor, and, compared with any other competitor, wright, notwithstanding his occasional slight lapses into conscientiousness, appeared superior in servility to all who could be substituted for him.[ ] allybone was declared to be "the man to go through thick and thin;" but, unfortunately, he had made himself quite ridiculous in all men's eyes by the palpable blunders he had recklessly fallen into during the late trial; and he felt so keenly the disgrace he had brought on himself and his religion, that he took to his bed and died a few weeks afterwards. thus, when william of orange landed at torbay, wright still filled the office of chief justice of the king's bench. he continued to sit daily in court till the flight of king james, when an interregnum ensued, during which all judicial business was suspended, although the public tranquillity was preserved, and the settlement of the nation was conducted by a provisional government. after jeffreys had tried to make his escape, disguised as a sailor, and was nearly torn to pieces by the mob, wright concealed himself in the house of a friend, and being less formidable and less obnoxious (for he was called the "_jackal_ to the _lion_,") he remained some time unmolested; but upon information, probably ill-founded, that he was conspiring with papists who wished to bring back the king, a warrant was granted against him by the privy council, on the vague charge of "endeavoring to subvert the government." under this he was apprehended, and carried to the tower of london; but after he had been examined there by a committee of the house of commons, it was thought that this custody was too honorable for him, and he was ordered to be transferred to newgate. here, from the perturbation of mind which he suffered, he was seized with a fever, and he died miserably a few days after, being deafened by the cheers which were uttered when the prince and princess of orange were declared king and queen of england. his pecuniary embarrassments had continued even after he became a judge, and, still living extravagantly, his means were insufficient to supply him with common comforts in his last hours, or with a decent burial. his end holds out an awful lesson against early licentiousness and political profligacy. he was almost constantly fighting against privation and misery, and during the short time that he seemed in the enjoyment of splendor he was despised by all good men, and he must have been odious to himself. when he died, his body was thrown into a pit with common malefactors; his sufferings, when related, excited no compassion; and his name was execrated as long as it was recollected. it is lucky for the memory of wright that he had contemporaries such as jeffreys and scroggs, who considerably exceeded him in their atrocities. had he run the same career in an age not more than ordinarily wicked, his name might have passed into a by-word, denoting all that is odious and detestable in a judge; whereas his misdeeds have long been little known, except to lawyers and antiquaries. it is a painful duty for me to draw them from their dread abode; but let me hope that, by exposing them in their deformity, i may be of some service to the public. ever since the reaction which followed the passing of the reform bill, there has been a strong tendency to mitigate the errors and to lament the fate of james ii. this has shown itself most alarmingly among the rising generation; and there seems reason to dread that we may soon be under legislators and ministers who, believing in the divine right of kings, will not only applaud, but act upon, the principles of arbitrary government. some good may arise from showing in detail the practical results of such principles in the due administration of justice--the chief object, it has been said, for which man renounces his natural rights, and submits to the restraints of magisterial rule.[ ] appendix. no. i. _the case of passmore williamson, as stated by himself in his petition for a habeas corpus, to the supreme court of pennsylvania._ _to the honorable the judges of the supreme court of pennsylvania:_ the petition of passmore williamson respectfully sheweth: that your petitioner is a citizen of pennsylvania, and a resident of philadelphia; that he is a member of "the pennsylvania society for promoting the abolition of slavery, and for the relief of free negroes unlawfully held in bondage, and for improving the condition of the african race," incorporated by act of assembly passed the th day of december, a. d. , of which dr. benjamin franklin was the first president, and that he is secretary of the acting committee of said society. that on wednesday, the th day of july last past, your petitioner was informed that certain negroes, held as slaves, were then at bloodgood's hotel, in the city of philadelphia, having been brought by their master into the state of pennsylvania, with the intention of passing through to other parts. believing that the persons thus held as slaves were entitled to their freedom by reason of their having been so brought by their master voluntarily into the state of pennsylvania, the petitioner, in the fulfilment of the official duty imposed upon him by the practice and regulations of the said society, went to bloodgood's hotel for the purpose of apprizing the alleged slaves that they were free, and finding that they with their master had left said hotel, and gone on board the steamboat of the new york line, then lying near walnut street wharf, your petitioner went on board the same, found the party, consisting of a woman named jane, about thirty-five years of age, and her two sons, daniel, aged about twelve, and isaiah, aged about seven, and, in presence of the master, informed the said jane that she was free by the laws of pennsylvania; upon which she expressed her desire to have her freedom, and finally, with her children, left the boat of her own free will and accord, and without any coercion or compulsion of any kind; and having seen her in possession of her liberty, with her children, your petitioner returned to his place of business, and has never since seen the said jane, daniel and isaiah, or either of them; nor does he know where they are, nor has he had any connection of any kind with the subject. your petitioner used no violence whatever, except simply holding back colonel wheeler, their former master, when he attempted by force to prevent the said jane from leaving the boat. some half dozen negroes, employed, as your petitioner is informed, as porters and otherwise, at the wharf and in the immediate neighborhood, of their own accord and without any invitation of the petitioner, but probably observing or understanding the state of affairs, followed the petitioner when he went on board the boat. an allegation has been made that they were guilty of violence and disorder in the transaction. your petitioner observed no acts of violence committed by them, nor any other disorder than the natural expression of some feeling at the attempt of colonel wheeler to detain the woman by force; that there was not any violence or disorder amounting to a breach of the peace is also fairly to be inferred from the fact that two police officers were present, who were subsequently examined as witnesses, and stated that they did not see anything requiring or justifying their interference to preserve the peace. and your petitioner desires to state explicitly that he had no preconcert or connection of any kind with them or with their conduct, and considers that he is in no way responsible therefor. your petitioner gave to colonel wheeler, at the time, his name and address, with the assurance that he would be responsible if he had injured any right which he had; fully believing at the time, as he does still believe, that he had committed no injury whatever to any right of colonel wheeler. on the night of the same day your petitioner was obliged to leave the city to attend an election of the atlantic and ohio telegraph company, at harrisburg, and returned to philadelphia on friday, the th of july, between one and two o'clock, a. m. upon his return, an _alias_ writ of _habeas corpus_ was handed to him, issued from the district court of the united states for the eastern district of pennsylvania, upon the petition of the said john h. wheeler, commanding him that the bodies of the said jane, daniel and isaiah he should have before the hon. john k. kane, judge of the said district court, forthwith. to the said writ your petitioner the same day, viz., the th day of july last past, made return, that the said jane, daniel and isaiah, or by whatever name they may be called, nor either of them, were not then, nor at the time of issuing said writ, or the original writ, or at any other time, in the custody, power, or possession of, nor confined nor restrained of their liberty, by your petitioner; therefore he could not have the bodies of the said jane, daniel and isaiah before the said judge, as by the said writ he was commanded. whereupon and afterwards, to wit: on the th day of july aforesaid, it was ordered and adjudged by the court that your petitioner be committed to the custody of the marshal, without bail or mainprize, as for a contempt in refusing to make return to a writ of _habeas corpus_ theretofore issued against him at the instance of mr. john h. wheeler; all which appears by the record and proceedings in the said case, which your petitioner begs leave to produce, and a copy of an exemplification of which is annexed to this petition. thereupon, on the same day, a warrant was issued, commanding that the marshal of the united states, in and for the eastern district of pennsylvania, forthwith take into custody the body of your petitioner, for a contempt of the honorable the judge of the said district court, in refusing to answer to the said writ of _habeas corpus_, theretofore awarded against him, the said petitioner, at the relation of mr. john h. wheeler, a copy of which is hereto annexed, and also a warrant, by and from the marshal of the united states, to the keeper of the moyamensing prison, a copy of which is also hereto annexed; under which warrants your petitioner was committed to the said prison, and is now there detained, without bail or mainprize. notwithstanding the record is silent on the subject, your petitioner thinks it proper to state that, on the return of the writ of _habeas corpus_, the judge allowed the relator to traverse the said return by parol, under which permission the relator gave his own testimony, in which he stated that he held the said jane, daniel and isaiah as slaves, under the law of virginia, and had voluntarily brought them with him by railroad from the city of baltimore to the city of philadelphia, where he had been accidentally detained at bloodgood's hotel about three hours; and certain other witnesses were examined. from the testimony thus given, though not at all warranted by it or by the facts, the said judge decided that your petitioner had been concerned in a forcible abduction of the said jane, daniel and isaiah, against their will and consent, upon the deck of the said steamboat, but admitted that your petitioner took no personally active part in such supposed abduction after he had left the deck. the hearing took place on the morning of friday, the th of july, at ten o'clock, your petitioner having had the first knowledge of the existence of any writ of _habeas corpus_ between one and two o'clock on the same morning. under these circumstances, before the said testimony was gone into and afterwards, the counsel of your petitioner asked for time, until the next morning, for consultation and preparation for the argument of the questions which might arise in the case, which applications were refused by the court, and the hearing went on, and closed on the same morning between twelve and one o'clock. on tuesday, the st of july, , your petitioner presented to the hon. chief justice of this court a petition for a _habeas corpus_, which was refused. inasmuch as your petitioner is thus deprived of his liberty for an indefinite time, and possibly for his life, as he believes, illegally; inasmuch as he is a native citizen of pennsylvania, and claims that he has a right to the protection of the commonwealth, and to have recourse to her courts for enlargement and redress; he begs leave respectfully to state some of the grounds on which he conceives that he is entitled to the relief which he now prays. whatever may be the view of the court as to the probability of his discharge on a hearing, your petitioner respectfully represents that he is clearly entitled to have a writ of _habeas corpus_ granted, and to be thereupon brought before the court. upon this subject the pennsylvania _habeas corpus_ act is imperative. indeed, as the question of the sufficiency of the cause of his detention directly concerns his personal liberty, any law which should fail to secure to him the right of being personally present at its argument and decision, would be frightfully inconsistent with the principles of the common law, the provisions of our bill of rights, and the very basis of our government. it is believed that no case, prior to that of your petitioner, is reported in pennsylvania, of a refusal of this writ to a party restrained of his liberty, except the case of _ex parte lawrence_, binn. , in which it was decided that it was not obligatory on the court to issue a second writ of _habeas corpus_ where the case had been already heard on the same evidence upon a first writ of _habeas corpus_ granted by another court of the petitioner's own selection: in other words, that the statutory right to the writ was exhausted by the impetration and hearing of the first writ, and that the granting of a second writ was at the discretion of the court. this case, therefore, appears to confirm strongly the position of your petitioner, that he is absolutely entitled at law to the writ for which he now prays. on the hearing there will be endeavored to be established on behalf of your petitioner, on abundant grounds of reason and authority, the following propositions, viz.:-- . that it is the right and duty of the courts, and especially of the supreme court of this commonwealth, to relieve any citizen of the same from illegal imprisonment. . that imprisonment under an order of a court or judge not having jurisdiction over the subject matter, and whose order is therefore void, is an illegal imprisonment. . that the party subjected to such imprisonment has a right to be relieved from it on _habeas corpus_, whether he did or did not make the objection of the want of jurisdiction before the court or judge inflicting such imprisonment; and that if he did not make such objection, it is immaterial whether he were prevented from making it by ignorance of the law, or by the want of extraordinary presence of mind, or by whatever other cause. . that the courts and judges of the united states are courts and judges of limited jurisdiction, created by a government of enumerated powers, and in proceedings before them the records must show the case to be within their jurisdiction, otherwise they can have none. . that if the record of any proceeding before them show affirmatively that the case was clearly without their jurisdiction, there can no presumption of fact be raised against such record for the purpose of validating their jurisdiction. . that no writ of _habeas corpus_ can be issued to produce the body of a person not in custody under legal process, unless it be issued in behalf and with the consent of said person. . that at common law, the return to a writ of _habeas corpus_, if it be an unevasive, full and complete, is conclusive, and cannot be traversed. . that a person held as a slave under the law of one state, and voluntarily carried by his owner for any purpose into another state, is not a fugitive from labor or service within the true intent and meaning of the constitution of the united states, but is subject to the laws of the state into which he has been thus carried; and that by the law of pennsylvania a slave so brought into this state, whether for the purpose of passing through the same or otherwise, is free. . that the district court of the united states has no jurisdiction whatever over the question of freedom or slavery of such person, or of an alleged abduction of him, nor any jurisdiction to award a writ of _habeas corpus_ commanding an alleged abductor, or any citizen by whom he may be assumed to be detained, to produce him. . that in case of a fugitive from service or labor from another state, the district court of the united states has jurisdiction to issue a warrant for the apprehension of such fugitive, and in case he be rescued and abducted from his claimant, so proceed by indictment and trial by jury against such abductor, and on conviction to punish him by limited fine and imprisonment; but even in the case of a fugitive slave, said court nor the judge thereof has no jurisdiction to issue a writ of _habeas corpus_, commanding the alleged abductor to produce such fugitive, or to enforce a return of such writ, or allow a traverse of the return thereof if made, or upon such traverse in effect convict the respondent, without indictment or trial by jury of such abduction, and thereupon punish him therefor by unlimited imprisonment in the name of a commitment, as for a contempt in refusing to return such writ of _habeas corpus_. . that generally it is true that one court will not go behind a commitment by another court for contempt; but that this is only where the committing court has jurisdiction of the subject matter; and your petitioner submits that when the circumstances of the supposed contempt are set forth upon the record of commitment, and it further appears thereupon that the whole proceedings were _coram non judice_, and that for that and other reasons the commitment was arbitrary, illegal and void, it is the right and duty of a court of competent jurisdiction, by writ of _habeas corpus_, to relieve a citizen from imprisonment under such void commitment. . that neither the district court of the united states nor the judge thereof had any shadow or color of jurisdiction to award the writ of _habeas corpus_ directed to your petitioner, commanding him to produce the bodies of jane, daniel, and isaiah, and that such writ was void; that your petitioner was in no wise bound to make return thereto; that the return which he did make thereto was unevasive, full, and complete, and was conclusive, and not traversable; that the commitment of your petitioner as for a contempt in refusing to return said writ is arbitrary, illegal, and utterly null and void; that the whole proceedings, including the commitment for contempt, were absolutely _coram non judice_. . that in such oppression of one of her citizens, a subordinate judge of the united states has usurped upon the authority, violated the peace and derogated from the sovereign dignity of the commonwealth of pennsylvania; that all are hurt in the person of your petitioner, and that he is justified in looking with confidence to the authorities of his native state to vindicate her rights by restoring his liberty. to be relieved, therefore, from the imprisonment aforesaid, your petitioner now applies, praying that a writ of _habeas corpus_ may be issued, according to the act of assembly in such case made and provided, directed to charles hortz, the said keeper of said prison, commanding him to bring before your honorable court the body of your petitioner, to do and abide such order as your honorable court may direct. and your petitioner will ever pray, &c. passmore williamson. _moyamensing prison, august , ._ no. ii. _the opinion and decision of judge kane, referred to in the foregoing petition._ _the u. s. a. ex. rel. wheeler_ agt. _passmore williamson_--sur. _habeas corpus_, th july, .--colonel john h. wheeler, of north carolina, the united states minister to nicaragua, was on board a steamboat at one of the delaware wharves, on his way from washington to embark at new york for his post of duty. three slaves belonging to him were sitting at his side on the upper deck. just as the last signal bell was ringing, passmore williamson came up to the party--declared to the slaves that they were free--and forcibly pressing mr. wheeler aside, urged them to go ashore. he was followed by some dozen or twenty negroes, who, by muscular strength, carried the slaves to the adjoining pier; two of the slaves at least, if not all three, struggling to release themselves, and protesting their wish to remain with their master; two of the negro mob in the meantime grasping colonel wheeler by the collar, and threatening to cut his throat if he made any resistance. the slaves were borne along to a hackney coach that was in waiting, and were conveyed to some place of concealment; mr. williamson following and urging forward the mob; and giving his name and address to colonel wheeler, with the declaration that he held himself responsible towards him for whatever might be his legal rights; but taking no personally active part in the abduction after he had left the deck. i allowed a writ of _habeas corpus_ at the instance of colonel wheeler, and subsequently an _alias_; and to this last mr. williamson made return, that the persons named in the writ, "nor either of them, are not now nor was at the time of issuing of the writ, or the original writ, or at any other time, in the custody, power, or possession of the respondent, nor by him confined or restrained: wherefore he cannot have the bodies," etc. at the hearing i allowed the relator to traverse this return; and several witnesses, who were asked by him, testified to the facts as i have recited them. the district attorney, upon this state of facts, moved for williamson's commitment: . for contempt in making a false return; . to take his trial for perjury. mr. williamson then took the stand to purge himself of contempt. he admitted the facts substantially as in proof before; made it plain that he had been an adviser of the project, and had given it his confederate sanction throughout. he renewed his denial that he had control at any time over the movements of the slaves, or knew their present whereabouts. such is the case, as it was before me on the hearing. i cannot look upon this return otherwise than as illusory--in legal phrase--as evasive, if not false. it sets out that the alleged prisoners are not now, and have not been since the issue of the _habeas corpus_, in the custody, power or possession of the respondent; and in so far, it uses legally appropriate language for such a return. but it goes further, and by added words, gives an interpretation to that language, essentially variant from its legal import. it denies that the prisoners were within his power, custody or possession, at any time whatever. now, the evidence of respectable, uncontradicted witnesses, and the admission of the respondent himself, establish the fact beyond controversy, that the prisoners were at one time within his power and control. he was the person by whose counsel the so called rescue was devised. he gave the directions, and hastened to the pier to stimulate and supervise their execution. he was the spokesman and first actor after arriving there. of all the parties to the act of violence, he was the only white man, the only citizen, the only individual having recognized political rights, the only person whose social training could certainly interpret either his own duties or the rights of others, under the constitution of the land. it would be futile, and worse, to argue that he who has organized and guided, and headed a mob, to effect the abduction and imprisonment of others--he in whose presence and by whose active influence the abduction and imprisonment have been brought about--might excuse himself from responsibility by the assertion that it was not his hand that made the unlawful assault, or that he never acted as the jailer. he who unites with others to commit a crime, shares with them all the legal liabilities that attend on its commission. he chooses his company and adopts their acts. this is the retributive law of all concerted crimes; and its argument applies with peculiar force to those cases, in which redress and prevention of wrong are sought through the writ of _habeas corpus_. this, the great remedial process by which liberty is vindicated and restored, tolerates no language, in the response which it calls for, that can mask a subterfuge. the dearest interests of life, personal safety, domestic peace, social repose, all that man can value, or that is worth living for, are involved in this principle. the institutions of society would lose more than half their value, and courts of justice become impotent for protection, if the writ of _habeas corpus_ could not compel the truth--full, direct, and unequivocal--in answer to its mandate. it will not do to say to the man, whose wife or whose daughter has been abducted, "i did not abduct her; she is not in my possession; i do not detain her; inasmuch as the assault was made by the hand of my subordinates, and i have forborne to ask where they propose consummating the wrong." it is clear, then, as it seems to me, that in legal acceptance the parties whom this writ called on mr. williamson to produce, were at one time within his power and control; and his answer, so far as it relates to his power over them, makes no distinction between that time and the present. i cannot give a different interpretation to his language from that which he has practically given himself, and cannot regard him as denying his power over the prisoners now, when he does not aver that he has lost the power which he formerly had. he has thus refused, or at least he has failed, to answer to the command of the law. he has chosen to decide for himself upon the lawfulness as well as the moral propriety of his act, and to withhold the ascertainment and vindication of the rights of others from that same forum of arbitrament on which all his own rights repose. in a word, he has put himself in contempt of the process of this court and challenges its action. that action can have no alternative form. it is one too clearly defined by ancient and honored precedent, too indispensable to the administration of social justice and the protection of human right, and too potentially invoked by the special exigency of the case now before the court, to excuse even a doubt of my duty or an apology for its immediate performance. the cause was submitted to me by the learned counsel for the respondent, without argument, and i have therefore found myself at some loss to understand the grounds on which, if there be any such, they would claim the discharge of their client. one only has occurred to me as, perhaps, within his view; and on this i think it right to express my opinion. i will frankly reconsider it, however, if any future aspect of the case shall invite the review. it is this: that the persons named in this writ as detained by the respondent, were not legally slaves, inasmuch as they were within the territory of pennsylvania when they were abducted. waiving the inquiry whether, for the purpose of this question, they were within the territorial jurisdiction of pennsylvania while passing from one state to another upon the navigable waters of the united states--a point on which my first impressions are adverse to the argument--i have to say: i. that i know of no statute, either of the united states, or of pennsylvania, or of new jersey, the only other state that has a qualified jurisdiction over this part of the delaware, that authorises the forcible abduction of any person or any thing whatsoever, without claim of property, unless in aid of legal process. . that i know of no statute of pennsylvania, which affects to divest the rights of property of a citizen of north carolina, acquired and asserted under the laws of that state, because he has found it needful or convenient to pass through the territory of pennsylvania. . that i am not aware that any such statute, if such a one were shown, could be recognized as valid in a court of the united states. . that it seems to me altogether unimportant whether they were slaves or not. it would be the mockery of philanthropy to assert, that, because men had become free, they might therefore be forcibly abducted. i have said nothing of the motives by which the respondent has been governed; i have nothing to do with them; they may give him support and comfort before an infinitely higher tribunal; i do not impugn them here. nor do i allude, on the other hand, to those special claims upon our hospitable courtesy which the diplomatic character of mr. wheeler might seem to assert for him. i am doubtful whether the acts of congress give to him and his retinue, and his property, that protection as a representative of the sovereignty of the united states, which they concede to all sovereignties besides. whether, under the general law of nations, he could not ask a broader privilege than some judicial precedents might seem to admit, is not necessarily involved in the cause before me. it is enough that i find, as the case stands now, the plain and simple grounds of adjudication, that mr. williamson has not returned truthfully and fully to the writ of _habeas corpus_. he must, therefore, stand committed for a contempt of the legal process of the court. as to the second motion of the district attorney--that which looks to a committal for perjury--i withhold an expression of opinion in regard to it. it is unnecessary, because mr. williamson being under arrest, he may be charged at any time by the grand jury; and i apprehend that there may be doubts whether the affidavit should not be regarded as extrajudicial. let mr. williamson, the respondent, be committed to the custody of the marshal without bail or mainprize, as for a contempt of the court in refusing to answer to the writ of _habeas corpus_, heretofore awarded against him at the relation of mr. wheeler. n. b. a motion of the prisoner's counsel for leave to amend the return was refused, and to a question for what time the imprisonment was to be, the judge replied--"while he remains in contempt." no. iii. _the opinion of the supreme court of pennsylvania, delivered by judge black, declining to grant the petition of passmore williamson._ this is an application by passmore williamson for _habeas corpus_. he complains that he is held in custody under a commitment of the district court of the united states, for a contempt of that court in refusing to obey its process. the process which he is confined for disobeying was a _habeas corpus_ commanding him to produce the bodies of certain colored persons claimed as slaves under the law of virginia. is he entitled to the writ he has asked for? in considering what answer we shall give to this question, we are, of course, expected to be influenced, as in other cases, by the law and the constitution alone. the gentlemen who appeared as counsel for the petitioner, and who argued the motion in a way which did them great honor, pressed upon us no considerations except those which were founded upon their _legal_ views of the subject. it is argued with much earnestness, and no doubt with perfect sincerity, that we are bound to allow the writ, without stopping to consider whether the petitioner has or has not laid before us any probable cause for supposing that he is illegally detained--that every man confined in prison, except for treason or felony, is entitled to it _ex debito justitiæ_--and that we cannot refuse it without a frightful violation of the petitioner's rights, no matter how plainly it may appear on his own showing that he is held in custody for a just cause. if this be true, the case of _ex parte lawrence_, binn. , is not law. there the writ was refused because the applicant had been previously heard before another court. but if every man who applies for a _habeas corpus_ must have it as a matter of right, and without regard to anything but the mere fact that he demands it, then a court or a judge has no more power to refuse a second than a first application. is it really true that the special application, which must be made for every writ of _habeas corpus_, and the examination of the commitment, which we are bound to make before it can issue, are mere hollow and unsubstantial forms? can it be possible that the law and the courts are so completely under the control of their natural enemies, that every class of offenders against the union and the state, except traitors and felons, may be brought before us as often as they please, though we know beforehand, by their own admissions, that we cannot help but remand them immediately? if these questions must be answered in the affirmative, then we are compelled, against our will and contrary to our convictions of duty, to wage a constant warfare against the federal tribunals by firing off writs of _habeas corpus_ upon them all the time. the punitive justice of the state would suffer still more seriously. the half of the western penitentiary would be before us at philadelphia, and a similar proportion from cherry hill and moyamensing would attend our sittings at pittsburgh. to remand them would do very little good; for a new set of writs would bring them all back again. a sentence to solitary confinement would be a sentence that the convict should travel for a limited term up and down the state, in company with the officers who might have him in charge. by the same means the inmates of the lunatic asylums might be temporarily enlarged, much to their own detriment; and every soldier or seaman in the service of the country could compel his commander to bring him before the court six times a week. but the _habeas corpus_ act has never received such a construction. it is a writ of right, and may not be refused to one who shows a _prima facie_ case entitling him to be discharged or bailed. but he has no right to demand it who admits that he is in legal custody for an offence not bailable and he does make what is equivalent to such an admission when his own application and the commitment referred to in it show that he is lawfully detained. a complaint must be made and the cause of detainer submitted to a judge before the writ can go. the very object and purpose of this is to prevent it from being trifled with by those who manifestly have no right to be set at liberty. it is like a writ of error in a criminal case, which the court or judge is bound to allow if there be reason to suppose that an error has been committed, and equally bound to refuse if it be clear that the judgment must be affirmed. we are not aware that any application to this court for a writ of _habeas corpus_ has ever been successful where the judges, at the time of the allowance, were satisfied that the prisoner must be remanded. the petitioner's counsel say there is but one reported case in which it was refused, ( binn. ;) and this is urged in the argument as a reason for supposing that in all other cases the writ was issued without examination. but no such inference can fairly be drawn from the scarcity of judicial decisions upon a point like this. we do not expect to find in reports so recent as ours those long-established rules of law which the student learns from his elementary books, and which are constantly acted upon without being disputed. the _habeas corpus_ is a common law writ, and has been used in england from time immemorial, just as it is now. the statute of char. ii. c. , made no alteration in the practice of the courts in granting these writs. ( barn. and ald. to chitty's reps. .) it merely provided that the judges in vacation should have the power which the courts had previously exercised in term time, ( chitty's gen. prac. ,) and inflicted penalties upon those who should defeat its operation. the common law upon this subject was brought to america by the colonists; and most, if not all of the states, have since enacted laws resembling the english statute of charles ii. in every principal feature. the constitution of the united states declares that "the privilege of a writ of _habeas corpus_ shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it." congress has conferred upon the federal judges the power to issue such writs according to the principles and rules regulating it in other courts. seeing that the same general principles of common law on this subject prevail in england and america, and seeing also the similarity of their statutory regulations in both countries, the decisions of the english judges, as well as of the american courts, both state and federal, are entitled to our fullest respect, as settling and defining our powers and duties. blackstone ( com. ) says the writ of _habeas corpus_ should be allowed only when the court or judge is satisfied that the party hath probable cause to be delivered. he gives cogent reasons why it should not be allowed in any other case, and cites with unqualified approbation the precedents set by sir edward coke and chief justice vaughan in cases where they had refused it. chitty lays down the rule ( cr. law, ; general prac. - .) it seems to have been acted upon by all the judges. the writ was refused in _rex_ v. _scheiner_, ( burr. ,) and in the case of the three spanish sailors, ( black. rep. .) in hobhouse's case, ( barn. and ald. ,) it was fully settled by a unanimous court, as the true construction of the statute, that the writ is never to be allowed, if upon view of the commitment it be manifest that the prisoner must be remanded. in new york, when the statute in force there was precisely like ours, (so far i mean as this question is concerned,) it was decided by the supreme court ( johns. ) that the allowance of the writ was a matter within the discretion of the court, depending on the grounds laid in the application. it was refused in huster's case, ( , c. ) and in _ex parte ferguson_, ( johns. rep. .) in addition to this we have the opinion of chief justice marshall, in watkins's case, ( peters, ) that the writ ought not to be awarded if the court is satisfied that the prisoner must be remanded. it was accordingly refused by the supreme court of the united states in that case, as it had been before in kearney's case. on the whole, we are thoroughly satisfied that our duty requires us to view and examine the cause of detainer now, and to make an end of the business at once, if it appear that we have no power to discharge him on the return of the writ. this prisoner, as already said, is confined on a sentence of the district court of the united states for a contempt. a _habeas corpus_ is not a writ of error. it cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. on a _habeas corpus_, the judgment, even of a subordinate state court, cannot be disregarded, reversed or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. we can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong. it is conclusively presumed to be right until it is regularly brought up for revision. we decided this three years ago at sunbury, in a case which we all thought one of much hardship. but the rule is so familiar, so universally acknowledged, and so reasonable in itself, that it requires only to be stated. it applies with still greater force, or at least for stronger reasons, to the decisions of the federal courts. over them we have no control at all, under any circumstances, or by any process that could be devised. those tribunals belong to a different judicial system from ours. they administer a different code of laws, and are responsible to a different sovereignty. the district court of the united states is as independent of us as we are of it--as independent as the supreme court of the united states is of either. what the law and the constitution have forbidden us to do directly on writ of error, we, of course, cannot do indirectly by _habeas corpus_. but the petitioner's counsel have put his case on the ground that the whole proceeding against him in the district court was _coram non judice_, null and void. it is certainly true that a void judgment may be regarded as no judgment at all; and every judgment is void which clearly appears on its own face to have been pronounced by a court having no jurisdiction or authority in the subject matter. for instance, if a federal court should convict and sentence a citizen for libel, or if a state court, having no jurisdiction except in civil pleas, should try an indictment for a crime and convict the party--in these cases the judgments would be wholly void. if the petitioner can bring himself within this principle, then there is no judgment against him; he is wrongfully imprisoned, and we must order him to be brought out and discharged. what is he detained for? the answer is easy and simple. the commitment shows that he was tried, found guilty, and sentenced for _contempt of court_, and nothing else. he is now confined in execution of that sentence, and for no other cause. this was a distinct and substantive offence against the authority and government of the united states. does any body doubt the jurisdiction of the district court to punish contempt? certainly not. all courts have this power, and must necessarily have it; otherwise they could not protect themselves from insult, or enforce obedience to their process. without it they would be utterly powerless. the authority to deal with an offender of this class belongs exclusively to the court in which the offence is committed, and no other court, not even the highest, can interfere with its exercise, either by writ of error, mandamus, or _habeas corpus_. if the power be abused, there is no remedy but impeachment. the law was so held by this court in m'laughlin's case, ( w. & s. ,) and by the supreme court of the united states in kearney's case, ( wharton, .) it was solemnly settled as part of the common law, in brass crossley's case, ( wilson, ,) by a court in which sat two of the foremost jurists that england ever produced. we have not the smallest doubt that it is the law; and we must administer it as we find it. the only attempt ever made to disregard it was by a new york judge, ( johns. rep. ,) who was not supported by his brethren. this attempt was followed by all the evil and confusion which blackstone and kent and story declared to be its necessary consequences. whoever will trace that singular controversy to its termination will see that the chancellor and the majority of the supreme court, though once outvoted in the senate, were never answered. the senate itself yielded to the force of the truths which the supreme court had laid down so clearly, and the judgment of the court of errors in yates's case ( johns. ) was overruled by the same court the year afterward in _yates_ v. _lansing_, ( johns. rep. ,) which grew out of the very same transaction, and depended on the same principles. still further reflection at a later period induced the senate to join the popular branch of the legislature in passing a statute which effectually prevents one judge from interfering by _habeas corpus_ with the judgment of another on a question of contempt. these principles being settled, it follows irresistibly that the district court of the united states had power and jurisdiction to decide what acts constitute a contempt against it; to determine whether the petitioner had been guilty of contempt; and to inflict upon him the punishment which in his opinion he ought to suffer. if we fully believed the petitioner to be innocent--if we were sure that the court which convicted him misunderstood the facts, or misapplied the law--still we could not reëxamine the evidence or rejudge the justice of the case, without grossly disregarding what we know to be the law of the land. the judge of the district court decided the question on his own constitutional responsibility. even if he could be shown to have acted tyrannically or corruptly, he could be called to answer for it only in the senate of the united states. but the counsel for the petitioner go behind the proceeding in which he was convicted, and argue that the sentence for contempt is void, because the court had no jurisdiction of a certain other matter which it was investigating, or attempting to investigate, when the contempt was committed. we find a judgment against him in one case, and he complains about another, in which there is no judgment. he is suffering for an offence against the united states; and he says he is innocent of any wrong to a particular individual. he is conclusively adjudged guilty of contempt; and he tells us that the court had no jurisdiction to restore mr. wheeler's slaves. it must be remembered that contempt of court is a specific criminal offence. it is punished sometimes by indictment, and sometimes in a summary proceeding, as it was in this case. in either mode of trial the adjudication against the offender is a conviction, and the commitment in consequence is execution. ( wheat. .) this is well settled, and i believe has never been doubted. certainly the learned counsel for the petitioner have not denied it. the contempt may be connected with some particular cause, or it may consist in misbehavior which has a tendency to obstruct the administration of justice generally. when it is committed in a pending cause, the proceeding to punish it is a proceeding by itself. it is not entitled in the cause pending, but on the criminal side. (wall. .) the record of a conviction for contempt is as distinct from the matter under investigation, when it was committed, as an indictment for perjury is, from the cause in which the false oath was taken. can a person convicted of perjury ask us to deliver him from the penitentiary, on showing that the oath on which the perjury is assigned, was taken in a cause of which the court had no jurisdiction? would any judge in the commonwealth listen to such a reason for treating the sentence as void? if, instead of swearing falsely, he refuses to be sworn at all, and he is convicted, not of perjury, but of contempt, the same rule applies, and with a force precisely equal. if it be really true that no contempt can be committed against a court while it is enquiring into matter beyond its jurisdiction, and if the fact was so in this case, then the petitioner had a good defence, and he ought to have made it on his trial. to make it after conviction is too late. to make it here is to produce it before the wrong tribunal. every judgment must be conclusive until reversed. such is the character, nature, and essence of all judgments. if it be not conclusive, it is not a judgment. a court must either have power to settle a given question finally and forever, so as to preclude all further inquiry upon it, or else it has no power to make any decision at all. to say that a court may determine a matter, and that another court may regard the matter afterward as open and undetermined, is an absurdity in terms. it is most especially necessary that convictions for contempt in our courts should be final, conclusive, and free from reëxamination by other courts on _habeas corpus_. if the law were not so, our judicial system would break to pieces in a month. courts totally unconnected with each other would be coming in constant collision. the inferior courts would revise all the decisions of the judges placed over and above them. a party unwilling to be tried in this court, need only defy our authority, and if we commit him, take out his _habeas corpus_ before an associate judge of his own choosing, and if that judge is of opinion that we ought not to try him, there is an end of the case. the doctrine is so plainly against the reason of the thing, that it would be wonderful, indeed, if any authority for it could be found in the books, except the overruled decision of mr. justice spencer of new york, already referred to, and some efforts of the same kind to control the other courts made by sir edward coke, in the king's bench, which are now universally admitted to have been illegal, as well as rude and intemperate. on the other hand, we have all the english judges, and all our own, disclaiming their power to interfere with or control one another in this way. i will content myself by simply referring to some of the books in which it is established, that the conviction of contempt is a separate proceeding, and is conclusive of every fact which might have been urged on the trial for contempt, and among others want of jurisdiction to try the cause in which the contempt was committed. ( johns. rep. , _et sequ._ the opinion of chief justice kent, on pages to . johns. . johns. . hill. . iredell, . ib. . sandf. . carter, . blackf. . miss. . wheeler's criminal cases, p. . ad. and ellis, .) these cases will speak for themselves; but i may remark as to the last one, that the very same objection was made there and here. the party was convicted of contempt in not obeying a decree. he claimed his discharge on _habeas corpus_ because the chancellor had no jurisdiction to make the decree, being interested in the cause himself. but the court of queen's bench held that if that was a defence it should have been made on the trial for contempt, and the conviction was conclusive. we cannot choose but hold the same rule here. any other would be a violation of the law which is established and sustained by all authority and all reason. but certainly the want of jurisdiction alleged in this case would not even have been a defence on the trial. the proposition that a court is powerless to punish for disorderly conduct, or disobedience of its process in a case which it ought ultimately to dismiss, for want of jurisdiction, is not only unsupported by judicial authority, but we think it is new even as an argument at the bar. we, ourselves, have heard many cases through and through before we became convinced that it was our duty to remit the parties to another tribunal. but we never thought that our process could be defied in such cases more than in others. there are some proceedings in which the want of jurisdiction would be seen at the first blush; but there are others in which the court must inquire into all the facts before it can possibly know whether it has jurisdiction or not. any one who obstructs or baffles a judicial investigation for that purpose, is unquestionably guilty of a crime, for which he may, and ought to be tried, convicted, and punished. suppose a local action to be brought in the wrong county; this is a defence to the action, but a defence which must be made out like any other. while it is pending, neither a party, nor an officer, nor any other person, can safely insult the court, or resist its order. the court may not have power to decide upon the merits of the case; but it has undoubted power to try whether the wrong was done within its jurisdiction or not. suppose mr. williamson to be called before the circuit court of the united states as a witness in a trial for murder, alleged to be committed on the high seas. can he refuse to be sworn, and at his trial for contempt, justify himself on the ground that the murder was committed within the limits of a state, and thereby triable only in a state court? if he can, he can justify perjury for the same reason. but such a defence for either crime, has never been heard of since the beginning of the world. much less can it be shown, after conviction, as a ground for declaring the sentence void. the wish which the petitioner is convicted of disobeying was legal on its face. it enjoined upon him a simple duty, which he ought to have understood and performed without hesitation. that he did not do so is a fact conclusively established by the adjudication which the court made upon it. i say the wish was legal, because the act of congress gives to all the courts of the united states the power "to issue writs of _habeas corpus_, when necessary for the exercise of their jurisdiction, and agreeable to the principles and usages of law." chief justice marshall decided in burr's trial, that the principles and usages referred to in this act were those of the common law. a part of the jurisdiction of the district court consists in restoring fugitive slaves; and the _habeas corpus_ may be used in aid of it when necessary. it was awarded here upon the application of a person who complained that his slaves were detained from him. unless they were fugitive slaves they could not be slaves at all, according to the petitioner's own doctrine, and if the judge took that view of the subject, he was bound to award the writ. if the persons mentioned on it had turned out on the hearing to be fugitives from labor, the duty of the district judge to restore them, or his power to bring them before him on a _habeas corpus_, would have been disputed by none except the very few who think that the constitution and law on that subject ought not to be obeyed. the duty of the court to enquire into the facts on which its jurisdiction depends is as plain as its duty not to exceed it when it is ascertained. but mr. williamson stopped the investigation _in limine_; and the consequence is, that every thing in the case remains unsettled, whether the persons named in the writ were slaves or free. whether mr. wheeler was the owner of them--whether they were unlawfully taken from him--whether the court had jurisdiction to restore them--all these points are left open for want of a proper return. it is not our business to say how they ought to be decided; but we doubt not that the learned and upright magistrate who presides in the district court would have decided them as rightly as any judge in all the country. mr. williamson had no right to arrest the inquiry because he supposed that an error would be committed on the question of jurisdiction, or any other question. if the assertions which his counsel now make on the law and the facts be correct, he prevented an adjudication in favor of his proteges, and thus did them a wrong, which is probably a greater offence in his own eyes than any thing he could do against mr. wheeler's rights. there is no reason to believe that any trouble whatever would have come out of the case, if he had made a true, full, and special return of all the facts; for then the rights of all parties, black and white, could have been settled, or the matter dismissed for want of jurisdiction, if the law so required. it is argued that the court had no jurisdiction, because it was not averred that the slaves were fugitives, but merely that they owed service by the laws of virginia. conceding, for the argument's sake, that this was the only ground on which the court could have interfered--conceding that it is not substantially alleged in the petition of mr. wheeler--the proceedings were, nevertheless, not void for that reason. the federal tribunals, though courts of limited jurisdiction, are not _inferior_ courts. their judgments, until reversed by the proper appellate court, are valid and conclusive upon the parties, though the jurisdiction be not alleged in the pleadings nor on any part of the record. ( wheaton, .) even if this were not settled and clear law, it would still be certain that the fact on which jurisdiction depends need not be stated _in the process_. the want of such a statement in the body of the _habeas corpus_, or in the petition on which it was awarded, did not give mr. williamson a right to treat it with contempt. if it did, then the courts of the united states must get out the ground of their jurisdiction in every subpoena for a witness; and a defective or untrue averment will authorize the witness to be as contumacious as he sees fit. but all that was said in the argument about the petition, the writ, and the facts which were proved or could be proved, refers to the _evidence_ in which the conviction took place. this has passed _in rem judicatam_. we cannot go one step behind the conviction itself. we could not reverse it if there had been no evidence at all. we have no more authority in law to come between the prisoner and the court to free him from a sentence like this, than we would have to countermand an order issued by the commander-in-chief to the united states army. we have no authority, jurisdiction, or power to decide any thing here except the simple fact that the district court had power to punish for contempt, a person who disobeys its process--that the petitioner is convicted of such contempt--and that the conviction is conclusive upon us. the jurisdiction of the court on the case which had been before it, and every thing else which preceded the conviction, are out of our reach, and they are not examinable by us--and, of course, not now intended to be decided. there may be cases in which we ought to check usurpation of power by the federal courts. if one of them would presume, upon any pretence whatever, to take out of our hands a prisoner convicted of contempt in this court, we would resist it by all proper and legal means. what we would not permit them to do against us we will not do against them. we must maintain the rights of the state and its courts, for to them alone can the people look for a competent administration of their domestic concerns; but we will do nothing to impair the constitutional vigor of the general government, which is "the sheet anchor of our peace at home and our safety abroad." some complaint was made in the argument about the sentence being for an indefinite time. if this were erroneous it would not avail here, since we have as little power to revise the judgment for that reason as for any other. but it is not illegal nor contrary to the usual rule in such cases. it means commitment until the party shall make proper submission. ( lord raymond, . johns. rep. .) the law will not bargain with anybody to let its courts be defied for a specific term of imprisonment. there are many persons who would gladly purchase the honors of martyrdom in a popular cause at almost any given price, while others are deterred by a mere show of punishment. each is detained until he finds himself willing to conform. this is merciful to the submissive and not too severe upon the refractory. the petitioner, therefore, carries the key of his prison in his own pocket. he can come out when he will, by making terms with the court that sent him there. but if he choose to struggle for a triumph--if nothing will content him but a clean victory or a clean defeat--he cannot expect us to aid him. our duties are of a widely different kind. they consist in discouraging as much as in us lies all such contests with the legal authorities of the country. _the writ of habeas corpus is refused._ no. iv. _the dissenting opinion of judge knox in favor of granting the petition._ knox, j. i do not concur in the opinion of the majority of this court refusing the writ of _habeas corpus_, and shall state the reasons why, in my judgment, the writ should be granted. this application was made to the court whilst holding a special session at bedford, on the th day of august; and upon an intimation from the counsel that in case the court had any difficulty upon the question of awarding the writ, they would like to be heard, thursday, the th of august, was fixed for the hearing. on that day an argument was made by messrs. meredith and gilpin, in favor of the allowance of the writ. i may as well remark here, that upon the presentation of the petition i was in favor of awarding the _habeas corpus_, greatly preferring that the right of the petitioner to his discharge should be determined upon the return of the writ. if this course had been adopted, we should have had the views of counsel in opposition to the discharge, and, moreover, if necessary, we could, after the return, have examined into the facts of the case. i am in favor of granting this writ, first, because i believe the petitioner has the right to demand it at our hands. from the time of magna charta the writ of _habeas corpus_ has been considered a writ of right, which every person is entitled to _ex debito justiciæ_. "but the benefit of it," says chancellor kent, "was in a great degree eluded in england prior to the statute of charles ii., as the judges only awarded it in term time, and they assumed a discretionary power of awarding or refusing it." kent commentaries, . and bacon says, "notwithstanding the writ of _habeas corpus_ be a writ of right, and what the subject is entitled to, yet the provision of the law herein being in a great measure eluded by the judge as being only enabled to award it in term time, as also by an imagined notion of the judges that they had a discretionary power of granting or refusing it," the act of charles ii. was made for remedy thereof. i am aware that both in england and this country, since the passage of the statute of charles ii., it has been held that where it clearly appeared that the prisoner must be remanded, it was improper to grant the writ; but i know of no such construction upon our act of th february, . the people of the united states have ever regarded the privileges of the _habeas corpus_ as a most invaluable right, to secure which, an interdiction against its suspension, "unless when in cases of rebellion or invasion the public safety may require it," is inserted in the organic law of the union; and in addition to our act of , which is broader and more comprehensive than the english statute, a provision in terms like that in the constitution of the united states is to be found in the constitution of this state. it is difficult to conceive how words could be more imperative in their character than those to be found in our statute of . the judges named are authorized and required, either in vacation or term time, upon the due application of any person committed or detained for any criminal or supposed criminal matter, except for treason or felony, or confined or restrained of his or her liberty, under any color or pretence whatsoever, to award and grant a _habeas corpus_, directed to the person or persons in whose custody the prisoner is detained, returnable immediately. and the refusal or neglect to grant the writ required by the act to be granted, renders the judge so neglecting or refusing liable to the penalty of three hundred pounds. i suppose no one will doubt the power of the legislature to require this writ to be issued by the judges of the commonwealth. and it is tolerably plain that where, in express words, a certain thing is directed to be done, to which is added a penalty for not doing it, no discretion is to be used in obeying the mandate. the english statute confined the penalty to a neglect or refusal to grant the writ in vacation time, and from this a discretionary power to refuse it in term time was inferred, but our act of assembly does not limit the penalty to a refusal in vacation, but is sufficiently comprehensive to embrace neglect or refusal in vacation or in term time. i have looked in vain through the numerous cases reported in this state to find that the writ was ever denied to one whose application was in due form, and whose case was within the purview of the act of assembly. in _respublica_ v. _arnold_, yates, , the writ was refused because the petitioner was not restrained of his liberty, and therefore not within the terms of the statute; and in _ex parte lawrence_, binney, , it was held that the act of assembly did not oblige the court to grant a _habeas corpus_ where the case had already been heard upon the same evidence by another court. without going into an examination of the numerous cases where the writ has been allowed, i believe it can be safely affirmed that the denial of the writ in a case like the present is without a precedent, and contrary to the uniform practice of the bench, and against the universal understanding of the profession and the people; but what is worse still, it appears to me to be in direct violation of the law itself. it may be said that the law never requires a useless thing to be done. grant it. but how can it be determined to be useless until the case is heard? whether there is ground for the writ is to be determined according to law, and the law requires that the determination should follow, not precede the return. an application was made to the chief justice of this court for a writ of _habeas corpus_ previous to the application now being considered. the writ was refused, and it was stated in the opinion that the counsel for the petitioner waived the right to the writ, or did not desire it to be issued, if the chief justice should be of the opinion that there was not sufficient cause set forth in the petition for the prisoner's discharge. but this can in nowise prejudice the petitioner's right to the writ which he now demands. even had the writ been awarded, and the case heard, and the discharge refused, it would not be within the decision in _ex parte lawrence_, for there the hearing was before a court in term time, upon a full examination of the case upon evidence adduced, and not at chambers; but the more obvious distinction here is that the writ has never been awarded. and the agreement of counsel that it should not be in a certain event, even if binding upon the client there, would not affect him here. now, while i aver that the writ of _habeas corpus, ad subjiciendum_, is a writ of right, i do not wish to be understood that it should issue as a matter of course. undoubtedly the petition must be in due form, and it must show upon its face that the petitioner is entitled to relief. it may be refused if, upon the application itself, it appears that, if admitted to be true, the applicant is not entitled to relief; but where, as in the case before us, the petition alleges an illegal restraint of the petitioner's liberty, under an order from a judge beyond his jurisdiction, we are bound in the first place to take the allegation as true; and so taking it, a probable cause is made out, and there is no longer a discretionary power to refuse the writ. whether the allegation of the want of jurisdiction is true or not, is determinable only upon the return of the writ. if one has averred in his petition what, if true, would afford him relief, it is his constitutional right to be present when the truth of his allegations is inquired into; and it is also his undoubted right, under our _habeas corpus_ act, to establish his allegations by evidence to be introduced and heard upon the return of the writ. to deny him the writ is virtually to condemn him unheard; and as i can see nothing in this case which requires at our hands an extraordinary resistance against the prayer of the petitioner to show that his imprisonment is illegal, that he is deprived of his liberty without due course of law. i am in favor of treating him as like cases have uniformly been treated in this commonwealth, by awarding the writ of _habeas corpus_, and reserving the inquiry as to his right to be discharged until the return of the writ; but as a majority of my brethren have come to a different conclusion, we must inquire next into the right of the applicant to be discharged as the case is now presented. i suppose it to be undoubted law that in a case where a court acting beyond its jurisdiction has committed a person to prison, the prisoner, under our _habeas corpus_ act, is entitled to his discharge, and that it makes no difference whether the court thus transcending its jurisdiction assumes to act as a court of the union or of the commonwealth. if a principle, apparently so just and clear, needs for its support adjudicated cases, reference can be had to _wise_ v. _withers_, cranch, ; peters, condensed rep. ; _rose_ v. _hinely_, cranch, , ; _den_ v. _harden_, paine, rep. , and ; cranch, ; _bollman_ v. _swartout_, cranch, ; kearney's case, wheaton, ; _kemp_ v. _kennedy_, peters, c. c. rep. ; _wickes_ v. _calk_, har. and j. ; _griffith_ v. _frazier_, cranch, ; _com._ v. _smith_, sup. court penn., wharton digest, ; _com. ex relatione lockington_ v. _the jailer_, &c., sup. court manuscript, , wharton's digest, vol. i. ; _albec_ v. _ward_, mass. . some of these cases decide that the act of a court without jurisdiction is void; some, that the proper remedy for an imprisonment by a court having no jurisdiction is the writ of _habeas corpus_; and others, that it may issue from a state court to discharge a prisoner committed under process from a federal court, if it clearly appears that the federal court had no jurisdiction of the case; altogether, they establish the point that the petitioner is entitled to relief, if he is restrained of his liberty by a court acting beyond its jurisdiction. neither do i conceive it to be correct to say that the applicant cannot now question the jurisdiction of the judge of the district court because he did not challenge it on the hearing. there are many rights and privileges which a party to a judicial controversy may lose if not claimed in due time, but not so the question of jurisdiction; this cannot be given by express consent, much less will acquiescence for a time waive an objection to it. (see u. s. digest, vol. i. p. , pl. , and cases there cited.) it would be a harsh rule to apply to one who is in prison "without bail or mainprize," that his omission to speak on the first opportunity forever closed his mouth from denying the power of the court to deprive him of his liberty. i deny that the law is a trap for the feet of the unwary. where personal liberty is concerned, it is a shield for the protection of the citizen, and it will answer his call even if made after the prison door has been closed on him. if, then, the want of jurisdiction is fatal, and the inquiry as to its existence is still open, the only question that remains to be considered is this: had the judge of the district court for the eastern district of the united states power to issue the writ of _habeas corpus_, directed to passmore williamson, upon the petition of john h. wheeler? the power of that court to commit for a contempt is not denied, and i understand it to be conceded as a general rule by the petitioner's counsel, that one court will not reëxamine a commitment for contempt by another court of competent jurisdiction; but if the court has no authority to issue the writ, the respondent was not bound to answer it, and his neglect or refusal to do so would not authorize his punishment for contempt. the first position which i shall take in considering the question of jurisdiction, is that the courts of the united states have no power to award the writ of _habeas corpus_ except such as is given to them by the acts of congress. "courts which originate in the common law possess a jurisdiction which must be regulated by the common law; but the courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend their jurisdiction. the power to award the writ by any of the courts of the united states must be given by written law." _ex parte swartout_, cranch, . _ex parte barre_, howard, . the power of the united states to issue writs of _habeas corpus_ is derived either from the fourteenth section of the act of th september, , or from the seventh section of the act of march , . the section from the act of provides that "all the courts of the united states may issue writs of _scire facias_, _habeas corpus_, and all other writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. and either of the justices of the supreme court, as well as the judges of the district courts, may grant writs of _habeas_, for the purpose of inquiry into the cause of commitment; but writs of _habeas corpus_ shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the united states, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." the seventh section of the act of d march, , authorizes "either of the justices of the supreme court, or judge of any district court of the united states, in addition, to the authority already conferred by law, to grant writs of _habeas corpus_ in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined on or by authority of law, for any act done, or omitted to be done, in pursuance of a law of the united states, or any order, process, or decree of any judge or court thereof, any thing in any act of congress to the contrary notwithstanding." now, unless the writ of _habeas corpus_ issued by the judge of the district court was necessary for the exercise of the jurisdiction of the said court, or was to inquire into a commitment under, or by color of the authority of the united states, or to relieve some one imprisoned for an act done, or omitted to be done, in pursuance of a law of the united states, the district court had no power to issue it, and a commitment for contempt in refusing to answer it is an illegal imprisonment, which, under our _habeas corpus_ act, we are imperatively required to set aside. it cannot be pretended that the writ was either asked for or granted to inquire into any commitment made under or by color of the authority of the united states, or to relieve from imprisonment for an act done or omitted to be done in pursuance of a law of the united states, and therefore we may confine our inquiry solely to the question whether it was necessary for the exercise of any jurisdiction given to the district court of the united states for the eastern district of pennsylvania. this brings us to the question of the jurisdiction of the courts of the united states, and more particularly that of the district court. and here, without desiring, or intending to discuss at large the nature and powers of the federal government, it is proper to repeat what has been so often said, and what has never been denied, that it is a government of enumerated powers, delegated to it by the several states, or the people thereof, without capacity to enlarge or extend the powers so delegated and enumerated, and that its courts of justice are courts of limited jurisdiction, deriving their authority from the constitution of the united states, and the acts of congress under the constitution. let us see what judicial power was given by the people to the federal government, for that alone can be rightly exercised by its courts. "the judicial power" (says the second section of the third article) "shall extend to all cases in law and equity arising under this constitution, the laws of the united states, and treaties made, or which shall be made under their authority, to all cases affecting embassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction, to controversies to which the united states shall be a party, to controversies between two or more states, between a state and citizen of another state, between citizens of different states, between citizens of the same state, claiming lands under grants of different states, and between a state, or the citizen thereof, and foreign states, citizens or subjects." the amendments subsequently made to this article have no bearing upon the question under consideration, nor is it necessary to examine the various acts of congress conferring jurisdiction upon the courts of the united states, for no act of congress can be found extending the jurisdiction beyond what is given by the constitution, so far as relates to the question we are now considering. and if such an act should be passed it would be in direct conflict with the tenth amended article of the constitution, which declares that "the powers not delegated to the united states by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." if this case can be brought within the judicial power of the courts of the united states, it must be either-- st. because it arises under the constitution or the laws of the united states. or, d. because it is a controversy between citizens of different states, for it is very plain that there is no other clause in the constitution which, by the most latitudinarian construction, could be made to include it. did it arise under the constitution or the laws of the united states? in order to give a satisfactory answer to this question, it is necessary to see what the case was. if we confine ourselves strictly to the record from the district court, we learn from it that, on the th day of july last, john h. wheeler presented his petition to the hon. j. k. kane, judge of the district court for the eastern district of pennsylvania, setting forth that he was the owner of three persons held to service or labor by the laws of the state of virginia; such persons being respectively named jane, aged about thirty-five years, daniel, aged about twelve years, and isaiah, aged about seven years, persons of color; and that they were detained from his possession by passmore williamson, but not for any criminal or supposed criminal matter. in accordance with the prayer of the petition, a writ of _habeas corpus_ was awarded, commanding passmore williamson to bring the bodies of the said jane, daniel, and isaiah, before the judge of the district court, forthwith. to this writ, passmore williamson made a return, verified by his affirmation, that the said jane, daniel, and isaiah, nor either of them, were at the time of the issuing of the writ, nor at the time of the return, nor at any other time, in the custody, power, or possession of, nor confined, nor restrained their liberty by him; and that, therefore, he could not produce the bodies as he was commanded. this return was made on the th day of july, a. d. . "whereupon, afterwards, to wit: on the th day of july, a. d. , (says the record,) the counsel for the several parties having been heard, and the said return having been duly considered, it is ordered and adjudged by the court that the said passmore williamson be committed to the custody of the marshal, without bail or mainprize, as for a contempt in refusing to make return to the writ of _habeas corpus_, heretofore issued against him, at the instance of mr. john h. wheeler." such is the record. now, while i am willing to admit that the want of jurisdiction should be made clear, i deny that in a case under our _habeas corpus_ act the party averring want of jurisdiction cannot go behind the record to establish its non-existence. jurisdiction, or the absence thereof, is a mixed question of law and fact. it is the province of fact to ascertain what the case is, and of law to determine whether the jurisdiction attaches to the case so ascertained. "and" says the second section of our act of , "that the said judge or justice may, according to the intent and meaning of this act, be enabled, by investigating the truth of the circumstances of the case, to determine whether, according to law, the said prisoner ought to be bailed, remanded, or discharged, the return may, before or after it is filed, by leave of the said judge or justice, be amended, and also suggestions made against it, so that thereby material facts may be ascertained." this provision applies to cases of commitment or detainer for any criminal or supposed criminal matter, but the fourteenth section, which applies to cases of restraint of liberty "under any color or pretence whatever," provides that "the court, judge, or justice, before whom the party so confined or restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore prescribed, to examine into the facts relating to the case, and into the cause of such confinement or restraint, and thereupon either bail, remand, or discharge the party so brought, as to justice shall appertain." the right and duty of the supreme court of a state to protect a citizen thereof from imprisonment by a judge of a united states court having no jurisdiction over the cause of complaint, is so manifest and so essentially necessary under our dual system of government, that i cannot believe that this right will ever be abandoned or the duty avoided; but, if we concede, what appears to be the law of the later cases in the federal courts, that the jurisdiction need not appear affirmatively, and add to it that the want of jurisdiction shall not be proved by evidence outside of the record, we do virtually deny to the people of the state the right to question the validity of an order by a federal judge consigning them to the walls of a prison "without bail or mainprize." what a mockery to say to one restrained of his liberty, "true, if the judge or court under whose order you are in prison acted without jurisdiction, you are entitled to be discharged, but the burden is upon you to show that there was no jurisdiction, and in showing this we will not permit you to go beyond the record made up by the party against whom you complain!" as the petitioner would be legally entitled, upon the return of the writ, to establish the truth of the facts set forth in his petition, so far as they bear upon the question of jurisdiction, we are bound before the return to assume that the facts are true as stated, and so taking them, the case is this: john h. wheeler voluntarily brought into the state of pennsylvania three persons of color, held by him in the state of virginia as slaves, with the intention of passing through this state. while on board of a steamboat near walnut street wharf, in the city of philadelphia, the petitioner, passmore williamson, informed the mother that she was free by the laws of pennsylvania, who, in the language of the petition, "expressed her desire to have her freedom; and finally, with her children, left the boat of her own free will and accord, and without coercion or compulsion of any kind; and having seen her in possession of her liberty with her children, your petitioner (says the petition) returned to his place of business, and has never since seen the said jane, daniel, and isaiah, or either of them, nor does he know where they are, nor has he had any connection of any kind with the subject." one owning slaves in a slave state voluntarily brings them into a free state, with the intention of passing through the free state. while there, upon being told that they are free, the slaves leave their master. can a judge of the district court of the united states compel their restoration through the medium of a writ of _habeas corpus_ directed to the person by whom they were informed of their freedom? or, in other words, is it a case arising under the constitution and laws of the united states? what article or section of the constitution has any bearing upon the right of a master to pass through a free state with his slave or slaves? or, when has congress ever attempted to legislate upon this question? i most unhesitatingly aver that neither in the constitution of the united states nor in the acts of congress can there be found a sentence which has any effect upon this question whatever. it is a question to be decided by the law of the state where the person is for the time being, and that law must be determined by the judges of the state, who have sworn to support the constitution of the state as well as that of the united states--an oath which is never taken by a federal judge. upon this question of jurisdiction it is wholly immaterial whether by the law of pennsylvania a slaveholder has or has not the right of passing through our state with his slaves. if he has the right, it is not in virtue of the constitution or laws of the united states, but by the law of the state, and if no such right exists, it is because the state law has forbidden it, or has failed to recognize it. it is for the state alone to legislate upon this subject, and there is no power on earth to call her to an account for her acts of omission and commission in this behalf. if this case, by any reasonable construction, be brought within the terms of the third clause of the second section of article four of the constitution of the united states, jurisdiction might be claimed for the federal courts, as then it would be a case arising under the constitution of the united states, although i believe the writ of _habeas corpus_ is no part of the machinery designed by congress for the rendition of fugitives from labor. "no person (says the clause above mentioned) held to service or labor in one state under the laws thereof escaping into another shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." by reference to the debates in the convention, it will be seen that this clause was inserted at the request of delegates from southern states, and on the declaration that in the absence of a constitutional provision the right of reclamation would not exist unless given by state authority. if it had been intended to cover the right of transit, words would have been used evidencing such intention. happily there is no contrariety in the construction which has been placed upon this clause in the constitution. no judge has ever so manifestly disregarded its plain and unequivocal language as to hold that it applies to a slave voluntarily brought into a free state by his master. on the contrary, there is abundant authority that such a case is not within either the letter or the spirit of the constitutional provision for the rendition of fugitives from labor. said mr. justice washington, _ex parte simmons_, w. c. c. reports, :--"the slave in this case having been voluntarily brought by his master into this state, i have no cognizance of the case, so far as respects this application, and the master must abide by the laws of this state, so far as they may affect his right. if the man claimed as a slave be not entitled to his freedom under the laws of this state, the master must pursue such remedy for his recovery as the laws of the state have provided for him." in _jones_ v. _vanzandt_, howard, , mr. justice woodbury uses language equally expressive: "but the power of national law," said that eminent jurist, "to pursue and regain most kinds of property in the limits of a foreign government is rather an act of comity than strict right, and hence as property in persons might not thus be recognized in some of the states in the union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the constitution as one of its compromises for the safety of that portion of the union which did not permit such property, and which otherwise might often be deprived of it entirely by its merely crossing the line of an adjoining state; this was thought to be too harsh a doctrine in respect to any title to property of a friendly neighbor, not brought nor placed in another state under state laws by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed." other authorities might be quoted to the same effect, but it is unnecessary, for if it be not clear that one voluntarily brought into a state is not a fugitive, no judicial language can ever make him so. will we then, for the sake of sustaining this jurisdiction, presume that these slaves of mr. wheeler escaped from virginia into pennsylvania, when no such allegation was made in his petition, when it is expressly stated in the petition of mr. williamson, verified by his affirmation, that they were brought here voluntarily by their master, and when this fact is virtually conceded by the judge of the district court in his opinion? great as is my respect for the judicial authorities of the federal government, i cannot consent to stultify myself in order to sustain their unauthorized judgments, and more particularly where, as in the case before us, it would be at the expense of the liberty of a citizen of this commonwealth. the only remaining ground upon which this jurisdiction can be claimed, is that it was in a controversy between citizens of different states, and i shall dismiss this branch of the case simply by affirming-- , that the proceeding by _habeas corpus_ is in no legal sense a controversy between private parties; and , if it were, to the circuit court alone is given this jurisdiction. for the correctness of the first position, i refer to the opinion of mr. justice baldwin in _holmes_ v. _jennifer_, published in the appendix to peters, and to that of judge betts, of the circuit court of new york, in _berry_ v. _mercein et al._ reported in howard, . and for the second, to the th section of the judiciary act, passed on the th of september, . my view of this case had been committed to writing before i had seen or heard the opinion of the majority of the court. having heard it hastily read but once, i may mistake its purport, but if i do not, it places the refusal of the _habeas corpus_ mainly upon the ground that the conviction for contempt was a separate proceeding, and that, as the district court had jurisdiction to punish for contempts, we have no power to review its decision. or, as it appears from the record that the prisoner is in custody upon a conviction for contempt, we are powerless to grant him relief. notwithstanding the numerous cases that are cited to sustain this position, it appears to me to be as novel as it is dangerous. every court of justice in this country has, in some degree, the power to commit for contempt. can it be possible that a citizen once committed for contempt is beyond the hope of relief, even although the record shows that the alleged contempt was not within the power of the court to punish summarily? suppose that the judge of the district court should send to prison an editor of a newspaper for a contempt of his court in commenting upon his decision in this very case; would the prisoner be beyond the reach of our writ of _habeas corpus_? if he would, our boasted security of personal liberty is in truth an idle boast, and our constitutional guaranties and writs of right are as ropes of sand. but in the name of the law, i aver that no such power exists with any court or judge, state or federal, and if it is attempted to be exercised, there are modes of relief, full and ample, for the exigency of the occasion. i have not had either time or opportunity to examine all of the cases cited, but, as far as i have examined them, they decide this and nothing more--that where a court of competent jurisdiction convicts one of a contempt, another court, without appellate power, will not reëxamine the case to determine whether a contempt was really committed or not. the history of punishments for contempts of courts, and the legislative action thereon, both in our state and union, in an unmistakable manner teaches, first, the liability of this power to be abused; and second, the promptness with which its unguarded use has been followed by legislative restrictions. it is no longer an undefined, unlimited power of a star chamber character, to be used for the oppression of the citizen at the mere caprice of the judge or court, but it has its boundaries so distinctly defined that there is no mistaking the extent to which our tribunals of law may go in punishment for this offence. in the words of the act of congress of d march, , "the power of the several courts of the united states to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, jurors, witness, or any other person or persons, to any _lawful_ writ, process, order, rule, decree or command of said courts." now, passmore williamson was convicted of a contempt for disobeying a writ of _habeas corpus_, commanding him to produce before the district court certain persons claimed by mr. wheeler as slaves. was it a lawful writ? clearly not, if the court had no jurisdiction to issue it; and that it had not i think is very plain. if it was unlawful, the person to whom it was directed was not bound to obey it; and, in the very words of the statute, the power to punish for contempt "shall not be construed to extend to it." but, says the opinion of the majority, he was convicted of a contempt of court, and we will not look into the record to see how the contempt was committed. i answer this by asserting that you cannot see the conviction without seeing the cause: , the petition; , the writ and the alias writ of _habeas corpus_; , the return; and , the judgment. "it is ordered and adjudged by the court that the said passmore williamson be committed to the custody of the marshal without bail or mainprize, as for a contempt in refusing to make return to the writ of _habeas corpus_ heretofore issued against him at the instance of mr. john h. wheeler." as i understand the opinion of a majority of my brethren, as soon as we get to the word contempt the book must be closed, and it becomes instantly sealed as to the residue of the record. to sustain this commitment we must, it seems, first presume, in the very teeth of the admitted fact, that these were runaway slaves; and second, we must be careful to read only portions of the record, lest we should find that the prisoner was committed for refusing to obey an unlawful writ. i cannot forbear the expression of the opinion that the rule laid down in this case by the majority is fraught with great danger to the most cherished rights of the citizens of the state. while in contests involving the right of property merely, i presume we may still treat these judgments of the united states courts, in cases not within their jurisdiction, as nullities; yet, if a single judge thinks proper to determine that one of our citizens has been guilty of contempt, even if such determination had its foundation in a case upon which the judge had no power to pronounce judgment, and was most manifestly in direct violation of a solemn act of the very legislative authority that created the court over which the judge presides, it seems that such determination is to have all the force and effect of a judgment pronounced by a court of competent jurisdiction, acting within the admitted sphere of its constitutional powers. nay, more. we confess ourselves powerless to protect our citizens from the aggressions of a court, as foreign from our state government in matters not committed to its jurisdiction as the court of queen's bench in england, and this upon the authority of decisions pronounced in cases not at all analogous to the one now under consideration. i believe this to be the first recorded case where the supreme court of a state has refused the prayer of a citizen for the writ of _habeas corpus_ to inquire into the legality of an imprisonment by a judge of a federal court for contempt, in refusing obedience to a writ void for want of jurisdiction. i will conclude by recapitulating the grounds upon which i think this writ should be awarded. . at common law, and by our statute of , the writ of _habeas corpus ad sufficiendum_, is a writ of right, demandable whenever a petition in due form asserts what, if true, would entitle the party to relief. . that an allegation in a petition that the petitioner is restrained of his liberty by an order of a judge or court without jurisdiction, shows such probable cause as to leave it no longer discretionary with the court or judge to whom application is made whether the writ shall or shall not issue. . that where a person is imprisoned by an order of a judge of the district court of the united states for refusing to answer a writ of _habeas corpus_, he is entitled to be discharged from such imprisonment if the judge of the district court had no authority to issue the writ. . that the power to issue writs of _habeas corpus_ by the judges of the federal courts is a mere auxiliary power, and that no such writ can be issued by such judges where the cause of complaint to be remedied by it is beyond their jurisdiction. . that the courts of the federal government are courts of limited jurisdiction, derived from the constitution of the united states and the acts of congress under the constitution, and that when the jurisdiction is not given by the constitution or by congress in pursuance of the constitution, it does not exist. . that when it does not appear by the record that the court had jurisdiction in a proceeding under our _habeas corpus_ act to relieve from an illegal imprisonment, want of jurisdiction may be established by parole. . that where the inquiry as to the jurisdiction of a court arises upon a rule for a _habeas corpus_, all the facts set forth in the petition tending to show want of jurisdiction are to be considered as true, unless they contradict the record. . that where the owner of a slave voluntarily brings his slave from a slave to a free state, without any intention of remaining therein, the right of the slave to his freedom depends upon the law of the state into which he is thus brought. . that if a slave so brought into a free state escapes from the custody of his master while in said state, the right of the master to reclaim him is not a question arising under the constitution of the united states or the laws thereof; a judge of the united states cannot issue a writ of _habeas corpus_ directed to one who it is alleged withholds the possession of the slave from the master, commanding him to produce the body of the slave before said judge. . that the district court of the united states for the eastern district of pennsylvania has no jurisdiction because a controversy is between citizens of different states, and that a proceeding by _habeas corpus_ is, in no legal sense, a controversy between private parties. . that the power of the several courts of the united states to inflict summary punishment for contempt of court in disobeying a writ of the court, is expressly confined to cases of disobedience to "lawful" writs. . that where it appears from the record that the conviction was for disobeying a writ of _habeas corpus_, which writ the court have no jurisdiction to issue, the conviction is _coram non judice_, and void. for these reasons i do most respectfully, but most earnestly, dissent from the judgment of the majority of my brethren refusing the writ applied for. no. v. _how passmore williamson was finally discharged._ previously to the application on williamson's behalf to the supreme court of pennsylvania, jane johnson, the woman who, and her two sons, were claimed as slaves by wheeler, had appeared before judge culver of new york, and had made an affidavit that the plan of claiming her freedom and that of her children had originated entirely with herself; that it was through her means that williamson was made acquainted with her desire in that behalf; and that all he had done, after coming on board the boat, was to assure her and her claimant that she and her children were free, to advise her to leave the boat, and to interfere to prevent wheeler from detaining her. the same facts she had afterwards testified to in open court in philadelphia, on the trial for assault and riot of the colored men who had assisted her to escape. after the failure of the application to the supreme court of pennsylvania, certain persons, indignant at this refusal of justice and at the continuation of williamson's false imprisonment, but acting wholly independently of him, induced jane johnson to present a petition to judge kane, setting forth all the above facts, and praying that as the writ of _habeas corpus_ obtained by wheeler under pretence of delivering her from imprisonment and detention had been obtained without her privity or consent, and on false pretences, the writ and all the proceedings under it might be quashed. after argument upon the question of allowing this petition to be filed, judge kane delivered a long and very elaborate opinion, embracing three principal topics. he began with a very elaborate eulogy upon the writ of _habeas corpus_, coming with a very singular grace from a judge who had prostituted that writ to so vile a use, viz.: an attempted kidnapping and the false imprisonment for a pretended contempt of the man who had encouraged and assisted jane johnson to vindicate her rights under the laws of pennsylvania. next followed judge kane's version of his proceedings in committing williamson, and an attempt to vindicate himself therein; and to which succeeded a very labored effort at enforcing his favorite doctrine, on which his whole proceeding had been based, that slaveholders have a right to transport their slaves through pennsylvania. he refused to receive the petition of jane johnson, or to pay any attention to its suggestions, on the following grounds: "the very name of the person who authenticates the paper is a stranger to any proceeding that is or has been before me. she asks no judicial action for herself, and does not profess to have any right to solicit action on behalf of another. on the contrary, her counsel have told me expressly that mr. williamson has not sanctioned her application. she has therefore no _status_ whatever in this court." after the delivery of this opinion a little episode followed, evidently got up with a view to relieve judge kane from a part of the odium under which he was laboring, of which episode the following account was given in the newspaper reports of the proceeding:-- "on the conclusion of the delivery of this opinion, john cadwallader, (a member of the bar, but not engaged in this case,) in order to remove a false impression from the public mind, said, from his recollection of the circumstances attending the commitment of passmore williamson, a proposition was made to amend the return to the writ, when judge kane replied:--'i will not receive an amendment now, but will be prepared to receive it when the record has been completed.' "no such motion was subsequently made, and the public impression that permission to amend was refused, was not warranted by facts. "judge kane replied that his (mr. cadwallader's) impression was correct. he had been prepared to receive a supplementary return from mr. williamson's counsel, but none had been offered. "mr. cadwallader suggested that an addition be made to the opinion of the court, embracing the remarks of a member of the bar not engaged in the case, and the reply of the judge. he was induced to make the suggestion by the best feeling towards a worthy but mistaken man, hoping it might lead to the adoption of such a course as would end in his liberation. "mr. cadwallader is to embody the remarks he made, when the judge will follow with his answer, so as to complete the record."[ ] some days after, (oct. ,) messrs. gilpin and meredith, of counsel for williamson, appeared in judge kane's court, and asked leave to read a petition from williamson. this petition contained a statement of the facts in relation to his connection with the liberation of jane johnson and her children, similar to that contained in his petition to the supreme court of pennsylvania, appendix. no. i. the following account of the proceedings on this motion is taken from the _philadelphia gazette_:-- judge kane said, 'the court cannot hear an application from a party in contempt, except to absolve him. i understand there is an application, by petition, in the name of passmore williamson, which is not to relieve himself from the contempt, but--' mr. meredith then remarked something in an inaudible tone, and judge kane said: 'let us not be misunderstood--i am not prepared to receive an application from passmore williamson, who is incarcerated for contempt of this court, unless such petition be to relieve himself from contempt by purgation. i am of opinion, unless otherwise instructed, that that is an independent preliminary to any other application from him. 'if, therefore, the counsel arise to present an application from mr. williamson, it must be for purgation. the counsel do not inform the court whether they are here to purge mr. williamson from the contempt. as at present advised, i have no power to hear their application, whatever it may be, in his behalf.' mr. meredith said there were two kinds of contempts; one of personal insult to the bench, with which passmore williamson is not concerned; but the contempt consisting in not making a proper return to the process of the court. mr. meredith then proceeded to argue that such a contempt could be purged by making an answer to the court and paying the costs, which he was now prepared to do. judge kane said, that up to this moment there has been, on the part of the individual to whom the function of the court has been delegated and exercised in this matter, not a single particle of conscious excitement. he did not believe it was in the power of the entire press of the united states, after he had honestly administered his duty to the best of his ability, to give him a pang, or produce one excited feeling; therefore, now as heretofore, he looked upon the question as one that has no feeling on the bench. if he understood the remarks of mr. meredith, he meant to say to the court that passmore williamson was desirous of testifying now his willingness to obey the exigencies of the writ of _habeas corpus_. if so, he had a simple, straightforward, honorable course to pursue. he has no need of making a narrative of facts or arguments of protest; let him come forward into court, declaring that he is willing to obey the writ issued by this court; and when he has done that, in the estimation of the judge, he is purged of his contempt. nothing on his part of personal offence was evinced to the court; his demeanor was entirely respectful; but he failed to obey the writ which the law issued to him; and when he has obeyed that writ, it will be the duty of this court to free him. what is understood by 'purgation' is not simply a mere form of words. it matters not about that, provided he received, from the party who is in contempt for having disobeyed the process of the court, the assurance that he is now prepared to obey such process, and, until he is prepared to announce his disposition to obey, he could not hear him upon any other subject which asserts that the court has erred either in point of fact or law, or has exercised a jurisdiction which does not belong to it. he said he would hear the counsel upon the question whether the court can legally hear any other petition than the one of purgation. the respondent's counsel then proceeded to argue the right of the court to hear a petition, other than of purgation, from passmore williamson. mr. meredith said he had found nothing in the authorities, either english or american, where persons were held guilty of a contempt in responding to a writ of _habeas corpus_ unless the return was evasive. he referred to a case in mason, where, in a return to a writ before judge story, there was clearly an evasion shown on the face of the return. under these circumstances, judge story declared that the course of practice was to propound interrogatories and compel the respondent to disclose more fully. mr. m. submitted whether it was not proper to subject the petitioner in this case to a further questioning. he could not find in english or american books any other course. mr. m. supposed that the respondent was committed until he should answer interrogatories. why had they not been propounded in the form that the court might think proper to put them? no case could be shown in which a defendant was to be committed for contempt, until he presented a prayer to have interrogatories propounded to him. how is he to answer what has not been filed? according to the books, the defendant may come into court at any time, and take advantage of an omission to file interrogatories within four days. if another view should be taken by the court, he would then ask that an order be made to show the defendant what he was to do to rid himself of the contempt. judge kane said that the defendant could make a declaration, that he was now ready to answer interrogatories. mr. meredith asked that the court make an order submitting certain interrogatories, such as it would deem sufficient, to the prisoner, the proper answers to which would be enough to purge him of the contempt. the court then said, 'in some of the cases mentioned we know that the party adjudged to be in contempt submitted himself to interrogatories, either by writing or _per se_. i see no difficulty in the way of the court's giving this decision in the form of an order. 'the suggestion of the counsel now has frequently been intimated by the court. the prisoner might at any time, under a proper application, have been before the court. if there was a misunderstanding of the position of the case by the counsel for mr. williamson, it is a matter of sincere regret to me.' mr. meredith said he could not find any case of petition that interrogatories should be filed, in any of the english books. _judge kane._--the gentleman, mr. williamson, is now recusant, and i often think that forms _sometimes_ have meaning and i cannot interfere otherwise than to say as i have said above. _mr. meredith._--i can enlarge the remark and say that forms _always_ have meaning. he argued that the purging interrogatories must be filed. if not filed, the party was entitled to his discharge. he argued from the 'chancery practice' of smith, that the defendant ought only to be imprisoned until he shall have properly answered the interrogatories put to him. mr. van dyke, the district attorney, then said that the question now was whether a person, in contempt, had any standing in court whatever. so far as mr. williamson is concerned, he has no standing. the argument of the gentlemen on the other side must be taken as arguing against the adjudication of this court. how far can a man in contempt come into court and purge that contempt? how did the counsel get over the fact, that his client was in contempt? he must first submit himself to the court by asking to be permitted to purge himself of contempt. mr. meredith closed the argument, and the proceeding was closed by an entry on the part of judge kane of the following order on the record. _the united states_ v. _williamson_. and now, october the th, , the court having heard argument upon the motion for leave to read and file among the records, in this case, a certain paper writing purporting to be the petition of passmore williamson, and having considered thereof, do refuse the leave moved for, inasmuch as it appears that the said passmore williamson is now remaining in contempt of this court, and that by the said paper writing he doth in no wise make purgation of his said contempt, nor doth he thereby pray that he may be permitted to make such purgation; wherefore the said passmore williamson hath not at this time a standing in this court. to the end, however, that the said passmore williamson may, when thereunto minded, the more readily relieve himself of his said contempt, it is ordered that whenever by petition, in writing, to be filed with the clerk, passmore williamson shall set forth, under his oath or solemn affirmation that 'he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogations as may be addressed to him by the court, touching the matters heretofore _legally_ enquired of by the writ of _habeas corpus_ to him directed, at the relation of john h. wheeler,' then the marshal do bring the said passmore williamson before the court, if in session, or if the court be not in session, then before the judge at his chambers, to abide the further order of the court in his behalf. and it is further ordered that the clerk do furnish copies of this order to the said passmore williamson, and to the attorney of the united states, and to the marshal. under this order williamson presented the following petition: _united states of america_ v. _williamson, district court of the united states, eastern district of pennsylvania_. _to the honorable the judge of the district court of the united states for the eastern district of pennsylvania:_ the petition of passmore williamson respectfully showeth: that he desires to purge himself of the contempt because of which he is now attached, and to that end is willing to make true answers to such interrogatories as may be addressed to him by the court, touching the matter heretofore inquired of him by the writ of _habeas corpus_ to him directed at the relation of john h. wheeler. wherefore he prays that he may be permitted to purge himself of said contempt by making true answers to such interrogatories as may be addressed to him by the honorable court touching the premises. p. williamson. affirmed and subscribed before me, nov. , . charles f. heazlitt, u. s. com. judge kane hesitated to receive this petition because it did not conform to his order by containing the word _legally_, before the phrase "inquired of," (thus confirming the legality of the proceedings under the original writ of _habeas corpus_ directed to williamson.) but finding that williamson was resolved to make no such concession, judge kane finally concluded to receive the petition, and made the following reply to it: 'passmore williamson: the court has received your petition, and, upon consideration thereof, have thought right to grant the prayer thereof. you will therefore make here in open court your solemn affirmation, that in the return heretofore made by you to the writ of _habeas corpus_, which issued from this court at the relation of john h. wheeler, and in the proceedings consequent thereupon, you have not intended a contempt of this court or of its process. moreover, that you are now willing to make true answers to such interrogatories as may be addressed to you by the court, touching the premises inquired of in the said writ of _habeas corpus_.' the required affirmation was then made in the form dictated by the judge. mr. van dyke, the district attorney, then submitted an interrogatory in writing, which was not read aloud at that time. mr. gilpin said mr. williamson was perfectly willing to answer the interrogatory submitted by the district attorney, but as he did not know what other interrogatories might follow this, he thought it best that it and its answer should be filed. mr. van dyke said he was willing either to file the interrogatory or to submit it for an immediate reply. mr. gilpin and judge kane both remarked that they had understood the district attorney to intimate, that if the question propounded was answered in the affirmative, he would be satisfied. the court further said, that it was for the petitioner to make his election whether or not the interrogatories and the replies should be filed. after consultation with his counsel, the petitioner preferred that the questions and answers should be filed. the court directed that the interrogatories should be filed. mr. gilpin then read the interrogatory that had been propounded, and the reply of mr. williamson. the interrogatory was as follows: 'did you at the time of the service of the writ of _habeas corpus_, at the relation of john h. wheeler, or at any time during the period intervening between the service of said writ and the making of your return thereto, seek to obey the mandate of said writ, by bringing before this honorable court the persons of the slaves therein mentioned? if to this interrogatory you answer in the affirmative, state fully and particularly the mode in which you sought so to obey said writ, and all that you did tending to that end.' the reply made was as follows: 'i did not seek to obey the writ by producing the persons therein mentioned before the court, because i had not, at the time of the service of the writ, the power over, the custody or control of them, and, therefore, it was impossible for me to do so. i first heard of the writ of _habeas corpus_ on friday, july , between one and two o'clock a. m., on my return from harrisburg. after breakfast, about nine o'clock, i went from my house to mr. hopper's office, when and where the return was prepared. at ten o'clock i came into court, as commanded by the writ. i sought to obey the writ by answering it truly; the parties not being in my possession or control, it was impossible for me to obey the writ by producing them. since the service of the writ i have not had the custody, possession or power over them; nor have i known where they were, except from common rumor, or the newspaper reports in regard to their public appearance in the city or elsewhere.' some discussion arose between the district attorney and the counsel of mr. williamson. mr. van dyke contended that the reply of the defendant was evasive and contradictory. the judge said the difficulty, he thought, could be easily overcome by amending the answer, and at the suggestion of the court it was amended in the following manner: 'i did not seek to obey the writ by producing the persons in the writ mentioned before this court. i did not seek, because i verily believed that it was entirely impossible for me to produce the said persons, agreeably to the command of the court.' this answer was then accepted by the court and ordered filed. mr. van dyke then submitted another interrogatory, the substance of which was, whether or not mr. williamson had been guilty of mental reservations in his reply to the first interrogatory? the court overruled this interrogatory as superfluous and improper. mr. van dyke withdrew this interrogatory and offered another, which was also overruled by the court, on the ground that it led to such replies as had already been objected to by the district attorney. mr. van dyke also withdrew this question. judge kane then remarked that the district attorney had been invited to aid the court in this case, but that he would bear in mind that his relation to mr. wheeler was now suspended. this was only an inquiry as to what injury had been done the process of the court. mr. van dyke said he was aware of the position he occupied. judge kane then said: 'the contempt is now regarded as purged and the party is released from custody. he is now reinstated in the position he occupied before the contempt was committed. mr. williamson is now before me on the return to the writ.' mr. van dyke then arose and addressed the court. after mr. van dyke had concluded, mr. meredith inquired: 'is mr. williamson discharged?' judge kane replied, 'he is. i understand from the remarks of the district attorney, that a _nolle prosequi_ has been entered in the case in this court.' the court then adjourned. mr. williamson was congratulated by his friends on his restoration to liberty.[ ] footnotes: [ ] the german _graf_, for which the latin _comes_ (in english, _count_ or _earl_) was employed as an equivalent, is a form of the same word. the law latin for sheriff is _vice-comes_, a name given, it would appear, after the title of earl or count had become hereditary, to the officer who still continued to be elected by the people for the official functions originally discharged by the earl. [ ] see forsyth's _history of trial by jury_, ch. iv. sec. . [ ] history of england, appendix, i. [ ] the decision of this majority would seem to have been principally determined, if the party complained against denied the charge, by the method of compurgation, in which the oath of the defendant was sustained by that of a certain number of his neighbors, who thereby certified their confidence in him; or, if he could not produce compurgators, and dared to venture upon it, by a superstitious appeal to the ordeal. [ ] history of england, appendix, ii. [ ] we may observe that even at present, whether in england or america, though the depositaries of the legislative and executive authority (which in those times the king was) sit no longer openly and personally on the bench, it still remains no easy matter, in cases in which they take an interest, to obtain in either country a judicial decision contrary to the inclination of these two authorities. [ ] in the king's absence--and the anglo-norman kings were often absent on visits to their continental dominions--this chief justiciary acted in all respects as the king's substitute, no less in military than in civil affairs, those who held it being selected quite as much for warlike prowess as for judicial skill. such was the case with ranulphus de granville, chief justiciary of henry ii., a. d. - , whose treatise in latin, _on the laws and customs of the kingdom of england_, is the oldest book of the common law. he went with richard i. on the third crusade, and was killed at the siege of acre. [ ] it might rather be said, a scholastic art, in which forms and words became matters of much greater consideration than substantial justice, and in which technical rules were substituted for the exercise of the reasoning faculties. [ ] not merely were these appeals introduced, but process was invented by which suits commenced in these local courts might, before they were finished, be removed into the king's courts, by the writ of _pone_ and others. [ ] originally, and down to a comparatively recent period, the inns of court were real schools, "readers" or lecturers being appointed for the instruction of the students, who were only admitted to practice after a sharp examination. now, the examination is a mere form, and the student seeks instruction where he pleases. even the nominal term of study has been reduced to five, and in some cases to three years. [ ] this distinction between attorneys and barristers, though still in full vogue in england and in several of the british colonies, is not recognized in the united states, where, indeed, it never had but a feeble and transient existence. [ ] down to the period of the reformation the abbots of the greater monasteries sat also in this house. [ ] if the lords, says campbell, were still liable to be so interrogated, they would not unfrequently be puzzled; and the revival of the practice might be a check on hasty legislation. it certainly would be a check upon the practice of courts, now so frequent, of putting an interpretation on statutes totally different from the intentions of those who frame them. [ ] hence the necessity of venue, that is, the allegation in all declarations and indictments of some place in some county where the matter complained of happened, in order to a trial by a jury of the vicinage. in personal actions this necessity of trying a case in the county where the transaction occurred was got rid of by first setting out the true place of the transaction, and then alleging under a _videlicet_ a venue in the county where the action was brought, which latter allegation the courts would not allow to be disputed. but in criminal proceedings and real actions the necessity of a trial in the county where the offence was committed or the land lies still continues. the origin of the jury in a body of neighbors who decided from their own knowledge will seem less remarkable when we recollect that by the customs of the anglo-saxons all sales of land, contracts, &c., between individuals took place in public at the hundred and county courts, the memory of the freeholders present thus serving in place of written records. see palgrave's _english commonwealth_, vol. i. p. . [ ] see forsyth's _trial by jury_, ch. x. sec. . [ ] down to the time of elizabeth _all_ cases occurring in middlesex county, in which westminster lies, were thus tried in bank. [ ] in london and middlesex four sessions were held a year; in the four northern counties only one. [ ] this history holds out to our state tribunals significant warnings as to the danger to which they are exposed on the part of the federal judges, especially those of the district courts, who sitting singly on the bench, and with powers enormously and most dangerously extended by recent legislation, have from the unity and concentration of the one-man power, a great advantage over courts liable to be retarded in their action, if not reduced to imbecility by divisions among their members. [ ] the appeal from the english colonial courts to the king in council--the appeal cases being heard and decided by a committee of the privy councillors learned in the law--is another remnant of the old system, in which the constitution of the ancient aula regis has been very accurately preserved. [ ] both these courts proceeded according to the forms of the civil law, and without a jury. but occasionally the court of equity directed questions of fact arising before it to be settled by jury trial, and by a statute of henry viii. the trial of all maritime felonies before the admiralty court was directed to be by jury. [ ] hyde, (afterwards lord clarendon,) himself a lawyer, by whom the usurpations of this court were brought to the notice of parliament, stated that more damages had been given by the earl marshal in his days, for words of supposed defamation, of which the law took no notice, than by all the courts of westminster hall during a whole term. [ ] the name is sometimes spelt brabaçon, brabançon, brabason, and brabanson. [ ] hume, who designates them "desperate ruffians," says "troops of them were sometimes enlisted in the service of one prince or baron, sometimes in that of another; they often acted in an independent manner, and under leaders of their own. the greatest monarchs were not ashamed, on occasion, to have recourse to their assistance; and as their habits of war and depredation had given them experience, hardiness, and courage, they generally composed the most formidable part of those armies which decided the political quarrels of princes."--vol. i. . in america we have no mercenary soldiers, but plenty of mercenary politicians, almost as much to be dreaded.--_ed._ [ ] they were removed because, during the king's absence on the continent, they had been guilty of taking bribes, and other misdemeanors. of de wayland, one of their number, and the first chief justice of the common pleas, lord campbell gives the following account: when arrested, on the king's return from aquitaine, conscious of his guilt, he contrived to escape from custody, and, disguising himself in the habit of a monk, he was admitted among friars-minors in a convent at bury st. edmund's. however, being considered a heinous offender, sharp pursuit was made after him, and he was discovered wearing a cowl and a serge jerkin. according to the law of sanctuary, then prevailing, he was allowed to remain forty days unmolested. at the end of that time the convent was surrounded by a military force, and the entry of provisions into it was prohibited. still it would have been deemed sacrilegious to take him from his asylum by violence; but the lord chief justice preferred surrendering himself to perishing from want. he was immediately conducted to the tower of london. rather than stand a trial, he petitioned for leave to abjure the realm; this favor was granted to him on condition that he should be attainted, and forfeit all his lands and chattels to the crown. having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side at dover, he was put on board a ship and departed to foreign parts. he is said to have died in exile, and he left a name often quoted as a reproach to the bench till he was superseded by jeffreys and scroggs. [ ] that is, in the ordinary discharge of his duties. his attempt to take away the liberties of the scotch we shall presently see.--_ed._ [ ] just like our northern candidates for the presidency, and the dough-face politicians who contrive to get chosen to congress by northern constituencies, whose rights they then barter away and betray.--_ed._ [ ] this is the very ground upon which it is attempted, now, to justify the repeal of the missouri prohibition of slavery, while brabacon's defence of english judges in scotland is a counterpart to the justification by our federal judges of the authority given to slave-catching commissioners.--_ed._ [ ] may the pending attempts of the southern states, countenanced and supported by the federal judges, to establish a "superiority" and "direct dominion" over the north, be met and repelled with similar spirit and success!--_ed._ [ ] he had been murdered by a body of insurgent peasants headed by jack straw, one of the leaders in wat tyler's insurrection.--_ed._ [ ] some of our federal judges would no doubt like very much to see this rule established among us.--_ed._ [ ] the persistence of richard ii. in the same arbitrary principles of which the advocacy cost tresilian his life, caused his deposition a few years afterwards, as to which, lord campbell observes,-- "while we honor lord somers and the patriots who took the most active part in the revolution of , by which a king was cashiered, hereditary right was disregarded, and a new dynasty was placed on the throne, we are apt to consider the kings of the house of lancaster as usurpers, and those who sided with them as rebels. yet there is great difficulty in justifying the deposition of james ii., and condemning the deposition of richard ii. the latter sovereign, during a reign of above twenty years, had proved himself utterly unfit to govern the nation, and, after repeated attempts to control him, and promises on his part to submit to constitutional advice, he was still under the influence of worthless favorites, and was guilty of continued acts of tyranny and oppression; so that the nation, which, with singular patience, had often forgiven his misconduct from respect to the memory of his father and his grandfather, was now almost unanimously resolved to submit no longer to his rule." [ ] fuller, in praising fortescue and markham, says, "these i may call two chief justices of the chief justices, for their signal integrity; for though the one of them favored the house of lancaster, and the other of york, in the titles to the crown, both of them favored the house of justice in matters betwixt party and party." [ ] a list by no means limited to england, but very much lengthened out in america.--_ed._ [ ] some of our american advocates of constructive treasons have laid down the law much in the same spirit.--_ed._ [ ] it was, we may suppose, from this charge that mr. justice curtis, of the supreme court of the united states, got the law retailed in his charge to the grand jury of the massachusetts district, in consequence of which indictments were found against wendell phillips and theodore parker for obstructing the execution of the fugitive slave act--on the ground that certain speeches of theirs in faneuil hall against that statute "referred to a purpose" and "incited to an act" of resistance to it, thereby making their expression of opinion criminal.--_ed._ [ ] the recent claim set up in america for legislative supremacy over conscience--a claim contended for by so many of our leading lawyers and divines--is not less blasphemous and outrageous than this claim of henry viii., and belongs to the same category.--_ed._ [ ] this would hardly be allowed by some of our american juridical deniers and deriders of the "higher law." it is hard to distinguish a law (such as the fugitive slave act) which sets the moral sentiment at defiance, from a law that god shall not be god.--_ed._ [ ] one striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. decisions that are to stand, can only stand upon their own inherent rectitude and reasonableness, and not upon the authority of those who make them.--_ed._ [ ] some of our american judges who have of late attained a very unenviable public character have also the reputation of being virtuous and amiable in private life.--_ed._ [ ] noy at this time was of the popular party. he afterwards went over to the court, and was made attorney general.--_ed._ [ ] similar pretences of respect for law and popular rights often serve as preface here in america to judgments as atrocious as that of chief justice hyde.--_ed._ [ ] this is the universal excuse for all sins, whether of omission or commission, on the part of courts who pay but little regard to bishop burnet's sensible observation that a precedent against reason "signifies no more but that the like injustice has been done before."--_ed._ [ ] though the lawyers, both in england and america, have long since abandoned the pretence, so impudently maintained by hyde, of a right in the executive authorities to imprison for contempt, into the ground and nature of which the courts had no right to inquire, they still claim for themselves and for one another--at least in pennsylvania--a like right, and insist with the same unction upon the absolute necessity of trusting "the courts" in these matters, and of relying upon their "mercy." see, in the appendix, no. , the opinion of the supreme court of pennsylvania, as delivered by judge black, of which the insolent conclusion was evidently borrowed from the above opinion of chief justice hyde.--_ed._ [ ] this celebrated lawyer, who had succeeded fleming as chief justice of the king's bench, had been, as well as crewe, turned out of office after holding the place for three years, because he would not allow the government to interfere with his administration of justice. he was now the leader of the popular party in the house of commons.--_ed._ [ ] we have had recent striking instances in america of the same thing in some of the "misconstructions" placed by judges on the laws in restraint of drunkenness and liquor selling.--_ed._ [ ] like those given by several federal judges in support of the fugitive slave act.--_ed._ [ ] noy had begun, like brampston, a flaming patriot, but, like him and so many other lawyers, had been bought over to the side of power by the hope of promotion, and being made attorney general, had advised the issue of the writs for ship money.--_ed._ [ ] cro. car. . these forms are no longer used. the chief justice is now sworn in privately before the chancellor; and without any speechifying he enters the court and takes his place on the bench with the other judges. but in scotland they still subject the new judge to trials of his sufficiency; while these are going on he is called lord probationer; and he might undoubtedly be plucked if the court should think fit. [ ] this is exactly the sort of judges from whom we in america have so much to fear.--_ed._ [ ] we have seen in america similar attempts to stop counsel from exposing the unsoundness of judicial opinions given in support of the fugitive slave act.--_ed._ [ ] this is the very doctrine lately revived, in a little different shape, by some of our american divines--that whatsoever the legislative power in its conscience thinks it may require, we ought to yield.--_ed._ [ ] some of our american federal judges are in the habit of declaiming much in the same style against abolitionists--who, indeed, may be considered as occupying a position in our present affairs in many respects parallel to that of the english puritans in the times of charles i.--_ed._ [ ] having once refused to hear counsel against ship money, he now undertook to square the account by refusing to hear counsel for it.--_ed._ [ ] see life of hyde, ante, p. . [ ] this supposed inability of the king to do wrong has in america among a certain class been transferred to the federal government, which represents the royal authority of the english.--_ed._ [ ] bl. com. . compulsory knighthood was abolished by the long parliament, car. i. c. . [ ] their decisions are still of as much authority on legal questions as those of courts sitting under a commission from the crown; and they were published with the sanction of the chancellor and all the judges in the reigns of charles ii. and james ii. [ ] it is doubtless a like mixture of motives that prompts just now the conduct of some of our american lawyers.--_ed._ [ ] charles ii., in his _declaration_ from breda, had promised that he should "proceed only against the immediate murderers of his royal father." [ ] in answer to the address of the two houses of the convention parliament to spare the lives of vane and lambert, the lord chancellor reported, "his majesty grants the desire of the said petition;"--the ancient form of passing acts of parliament. the ultra cavalier house of commons which followed desired vane's death, but could not alter the law or abrogate the royal promise. [ ] in his younger days, before the civil war, sir henry vane had been among the early emigrants to massachusetts, and as governor of that colony had borne a part in some remarkable transactions there.--see hildreth's _history of the united states_, vol. i. ch. ix. [ ] a fortress on the south shore of the english channel, taken by cromwell from the spaniards, and by charles ii. sold at this time to louis xiv. of france. [ ] so bacon, better at precept than at practice, in his advice to sir george villars, requires in judges these three attributes--they must be men of courage, fearing god, and hating covetousness: an ignorant man cannot, a _coward_ dare not be a good judge. on the american bench we have too many cowards.--_ed._ [ ] the following dialogue occurred after the verdict:-- _prisoner._--i most humbly beseech your lordship to remember my condition, (he had before stated himself to be the father of nine small children,) and intercede for me. _lord hyde._--i would not intercede for my own father in this case, if he were alive. [ ] this practice of putting questions to the prisoner intended to intimidate him, to involve him in contradictions, or to elicit from him some indiscreet admission, had ceased during the commonwealth, but was revived by the new royal judges. [ ] this was the same doctrine afterwards attempted to be maintained by lord mansfield, but overruled by a declaratory act of parliament. [ ] an american specimen of this style of judicial decision may be found in judge grier's way of speaking on the bench about abolitionists.--_ed._ [ ] state trials, - . [ ] hale, p. c. . [ ] the above passage enclosed in brackets has been added by the editor. our american judges, more subtle than their predecessors, instead of fining juries for not rendering verdicts according to directions, have introduced the practice of questioning jurors beforehand, and not allowing them to sit unless they pass a satisfactory examination.--_ed._ [ ] this was an expensive residence built by clarendon, to which the populace gave that name, under the unfounded idea that the expense of it was defrayed out of bribes received for consenting to the sale of dunkirk.--_ed._ [ ] this has been from great antiquity the decoration of the english chief justices. dugdale says it is derived from the name of st. simplicius, a christian judge, who suffered martyrdom under the emperor diocletian.--_ed._ [ ] among these was, "whether the act of severing the head of charles i. from his body could be alleged to have been committed in his own lifetime," and "whether it should be laid as against the peace of the late or of the present king." judge mallet made the confusion more confounded by maintaining that by the law of england a day is indivisible; and that, as charles ii. certainly was our lawful king during a part of that day, no part of it had been in the reign of charles i. [ ] this case, thus characterized by lord campbell, served as foundation for the remarkable attempt recently made among us to convert opposition to the fugitive slave act into high treason. this bloody idea was first started by george t. curtis, a slave-catching commissioner of massachusetts, in his telegraphic despatch to mr. webster, giving an account of the rescue at boston, by a number of colored men, from the hands of the u. s. marshal, of a man named shadrach, who had been seized on one of commissioner curtis's warrants as a fugitive slave. not long after, in september, , a maryland slaveholder named gorsuch obtained from the notorious edward d. ingraham, the philadelphia slave-catching commissioner, warrants against four alleged fugitive slaves. he proceeded with an armed party and a deputy marshal to christiana, and besieged a house in which the slaves were said to have taken refuge. intelligence had been received of the approach of the party, and the slaves manfully resolved to defend themselves, and, if possible, to achieve their freedom. some of their colored friends gallantly came to their aid and generously shared their danger. gorsuch, the slave-hunter, and the marshal entered the house, but were repulsed, each party firing at the other, but, as appears, without effect. the besiegers called for assistance, and meeting caspar hanway, a white man, on horseback, the marshal, as authorized by the fugitive law, commanded his aid in arresting the slaves. mr. hanway, as became a republican and a christian, refused obedience to the infamous mandate. in the mean time the negroes made, it would seem, a sortie, advancing on the enemy. hanway called to them _not to fire_. his exhortation was unheeded. gorsuch was shot dead, another was wounded, and the residue of the slave-catchers sought safety in flight. at the next meeting of the united states district court for the eastern district of pennsylvania, this case was brought to the notice of the grand jury by judge kane. after reciting the facts as they appeared in the newspapers, he added, that it was reported "that for some months back, gatherings of people, strangers as well as citizens, have been held from time to time in the vicinity of the place of the recent outrage, at which exhortations are made and pledges interchanged to hold the law for the recovery of fugitive slaves as of no validity, and to defy its execution." in other words, anti-slavery meetings had been held in lancaster county, as in other parts of the free states, and in these meetings one of the most detestable acts of modern legislation had been denounced as cruel and unjust, and the people in attendance had expressed their determination not to participate in slave hunts. "if," said the judge; "the circumstances to which i have adverted [viz: the riot at christiana and the anti-slavery meetings] have in fact taken place, they involve the highest crime known to the law." and what crime is that? treason. and what is treason? the judge answers, "levying war against the united states." and what had the affair at christiana to do with war against the united states? again the judge replies, "any combination forcibly to prevent or oppose the execution or enforcement of a provision of the constitution or of a public statute, if accompanied by an act of forcible opposition in pursuance of such combination," is embraced in the expression "levying war against the united states," as used in the constitutional definition of treason. hence, four negroes combining to maintain their newly-recovered liberty by forcibly resisting the efforts of a slave-catcher, are guilty of levying war against the united states. but the judge's patriotic zeal against traitors did not confine itself to the enemies of the united states actively engaged in the christiana campaign. here, indeed, he went far beyond even the infamous judge kelynge. "it is not necessary," so he told the grand jury, "to prove that the individual accused was a direct personal actor in the violence, nor is even his personal presence indispensable. though he be absent at the actual perpetration, yet if he directed the act, devised, or knowingly furnished the means for carrying it into effect, or instigated others to perform it, he shared their guilt. in treason, there are no accessories." from all this the grand jury were to understand that anti-slavery men, by their doctrines of human rights and their denunciations of the fugitive act, instigated fugitive slaves to defend themselves; hence, as, in treason, all are principals, however remotely and indirectly concerned, these abolition instigators had also levied war, were traitors, and might be legally hung. to strengthen this intended impression on the minds of the jury, the judge launched out into an invective against the abolitionists, concluding with the very significant and smart admonition, "while he (the abolitionist) remains within our borders he is to remember that successfully to instigate treason is to commit it." what is still more astonishing than even this charge, the grand jury, to whom it was delivered, showed themselves such ready receivers of its infamous and atrocious doctrines as to bring into court thirty bills for high treason, against as many different individuals, founded upon it. of these thirty indictments, the only one brought to trial was that against caspar hanway, above mentioned. the only acts proved against this man, in support of the charge of having "traitorously levied war against the united states," were, . having declined to assist the marshal in arresting the fugitives; and . in calling to the negroes and urging them _not_ to fire. judge grier presided on the trial, and notwithstanding his vulgar invectives against the abolitionists, found himself compelled to charge the jury, even in the presence of judge kane, that "a number of fugitive slaves may infest a neighborhood, and may be encouraged by their neighbors in combining to resist with force and arms their master, or the public officer who may come to arrest them; they may murder or rob them; they are guilty of felony and liable to punishment, but not as traitors." the prisoner was of course acquitted, and all the other indictments abandoned; and thus ended in shame and ridicule judge kane's ingenious device for hanging all who resisted the fugitive slave law. yet this same man, at a kossuth meeting at philadelphia, made a rampant filibustering speech in behalf of oppressed nations, quoting with exultation the words of vattel, "when a people from good reasons take up arms against an oppressor, justice and generosity require that brave men should be assisted in the defence of their liberties."--_ed._ [ ] see ante, pp. , . [ ] and yet it is upon the authority of these worthless reports that some important american decisions have been based. see _mass. reports_, , commonwealth v. bowen; also the preceding note.--_ed._ [ ] for an account of chiffinch, see the life of jeffrey, p. . [ ] our recent american history presents a curious parallel to the english popish plot delusion and the use made of it by the unscrupulous politicians of that age. the basis of that delusion was the well-founded horror which the english people entertained for the popish religion as hostile to their liberties. the immediate allegation upon which it rested was, that the papists had formed a conspiracy to assassinate charles ii., and so to open the way to the throne for the duke of york, (afterwards james ii.,) a professed papist. the suggestion of this plot, founded merely on vague suspicions,--(if indeed it was not, as some writers think, purposely started for political objects,)--was taken hold of by the unprincipled shaftesbury, who from having been an ultra courtier, had become the leader of the country party. he sought to use it to stimulate the people against the court, and to prepare the way for his project of excluding the duke of york from succession to the throne. he expected that the court would oppose this delusion, and so would make itself still more unpopular. but charles ii., no less unprincipled than shaftesbury, was quite as ready as he to play at any dangerous game; and that he might gain credit for protestantism, (though all the while secretly a papist,) he resolved to humor the delusion to the utmost, and to allow it full play against its unfortunate victims. so here in america, the democrats, (so called, but in fact slavery extenders,) taking advantage of the very strong and well-founded popular sentiment in favor of the union, and seeking to recommend themselves to favor as a national party, hit upon the similar expedient of accusing the abolitionists of a plot to dissolve the union, part of the odium of which they hoped to throw upon their political opponents, the so-called whigs, by accusing them as screeners and favorers of the abolitionists. the whigs, however, in imitation of the policy of charles ii., and under the leadership of the late daniel webster, sought to turn this pretended plot to their own advantage, by coming out still more furious union-savers than even the democrats, and denouncing the abolitionists with still greater fury--thus working up the public mind into a terror at the imaginary danger of the union, much like that of the english people at the time of the popish plot. we, too, have had our trials for treason, (see ante, p. - ;) and if we have had no bloody executions, it has not been for want of scroggses, both on and off the bench.--_ed._ [ ] for this he probably received a good sum of money. [ ] "by his zeal in the protestant cause he gained for a while a universal applause throughout the whole nation."--_athenæ_, iv. . [ ] this profession of contempt for "vulgar noise" has lately been repeated in america by a judge whose manner and bearing on the bench come as near those of scroggs as the present times will bear.--_ed._ [ ] from this asseveration a suspicion arises of pecuniary corruption; but i believe that scroggs was swayed in this instance by a disinterested love of rascality. [ ] roger north, whose curious life of his brother is largely quoted in this memoir.--_ed._ [ ] at that time not more than fifty volumes were required. now, unfortunately, a law library is "_multorum camelorum onus_," (a load for many camels.) [ ] this sort of practice on the weakness of judges, keeping them in good humor by flattery and complaisance, may possibly, as the text implies, be abandoned in england, but in america it is still sufficiently common.--_ed._ [ ] the distinguishing badge worn by the king's counsel. the barristers wear stuff gowns. the serjeants, (the highest rank of practitioners,) enjoying a monopoly of the practice of the court of common pleas, which originally had exclusive cognizance of all civil actions, have or had, as their badges, a coif, or black velvet cap, (for which a wig was about this time substituted,) and parti-colored robes.--_ed._ [ ] the hours then kept must have been very inconvenient for lawyers in parliament, as all the courts and both houses met at eight in the morning and sat till noon. [ ] this early rising rendered it necessary for him to take "a short turn in the other world after dinner." [ ] roger assures us he did not purloin any part of the treasure, for which he takes infinite credit to himself. [ ] this was the title taken by finch on promotion to the great seal. nottingham is greatly lauded by blackstone and other writers on jurisprudence as a "consummate lawyer," and as the father of the modern english equity system. his abilities were unquestionable, but his political career, like that of so many other "consummate lawyers," has some very black spots.--_ed._ [ ] here we have one of many english precedents of assault upon the right of petition--a thing by no means unknown in our american politics.--_ed._ [ ] the same parliament had already impeached scroggs. see ante, p. . [ ] here again is the old pretence of "levying war," under which it has been attempted with us to convert hostility to the fugitive slave act into treason. see ante, p. .--_ed._ [ ] pemberton, though well aware that, to justify the grand jury in finding an indictment, a _prima facie_ case of guilt must be made out, instructed them that "a probable ground of accusation" was sufficient.--_ed._ [ ] by this word "pension," i conceive we are to understand _salary_ while the lord keeper was in office, and not, as might be supposed, an allowance on his retirement. [ ] pemberton had been appointed to succeed scroggs as chief justice of the king's bench, but not being found quite serviceable enough, was now removed into another court.--_ed._ [ ] "sir f. north being made lord keeper on the death of the earl of nottingham, the lord chancellor, i went to congratulate him. he is a most knowing, learned, and ingenious person; and, besides having an excellent person, of an ingenuous and sweet disposition, very skilful in music, painting, the new philosophy, and political studies."--_mem._ i. . judge kane is said to be quite an accomplished person.--_ed._ [ ] the principal obstacle to law reform in america is the pecuniary interest which the lawyers think they have in keeping up old abuses.--_ed._ [ ] bishop burnet, the historian. [ ] see beyond, life of jeffreys, p. . [ ] an account of guilford's unavailing attempt to prevent this appointment will be found in the life of wright, chap. xix.--_ed._ [ ] it is curious that roger gravely states that "he was dropped from the tory list and turned trimmer."--_life_, i. . [ ] life, ii. . it should be recollected that, at this time, the council met in the afternoon, between two and three--dinner having taken place soon after twelve, and a little elevation from wine was not more discreditable at that hour than in our time between eleven and twelve o'clock at night. [ ] james and jeffreys setting themselves up as the special advocates of toleration, (with a view to the introduction of popery,) is like our american slaveholders putting themselves forward as advocates of the rights of property and as special democrats, for the purpose of upholding slavery, based as slavery is on principles at war with the fundamental idea of property and democracy.--_ed._ [ ] life, ii. , , . [ ] lord coke lays down, that upon such an occasion there ought to be a warrant by advice of the privy council, as in h. , to certain physicians and surgeons named, authorizing them to administer to the royal patient "potiones, syrupos, confectiones, laxitivas medicinas, clysteria, suppositoria, capitis purgea, capitis rasuram, fomentationes, embrocationes, emplastra," &c.; still, that no medicine should be given to the king but by the advice of his council; that no physic should be administered except that which is set down in writing, and that it is not to be prepared by any apothecary, but by the surgeons named in the warrant.-- _inst._ . these were the precautions of times when no eminent person died suddenly without suspicion of poison. even charles ii. was at first said to have been cut off to make way for a popish successor, although, when the truth came out, it appeared that he had himself been reconciled to the roman catholic church. [ ] see the speech at full length. life, ii. . there is nothing in it very good or very bad. [ ] evelyn tells us that this was the first rhinoceros ever introduced into england, and that it sold for two thousand pounds. [ ] we may add--for his tory principles, and for the loss of america to the british crown.--_ed._ [ ] saunders was very ingenious; but in the invention of charges to serve the turn of tyranny he has his match in some of our american lawyers.--_ed._ [ ] this is not the william jones mentioned in the life of lord north, but a person of a different character, one edward jones.--_ed._ [ ] so we have lately seen five inhabitants of philadelphia prosecuted for a riot, for aiding to give effect to a statute of that state abolishing negro slavery.--_ed._ [ ] the editions of these reports by the late serjeant williams, and by the present most learned judges, mr. justice patteson and mr. justice vaughan williams, illustrated by admirable notes, may be said to embody the whole common law of england, scattered about, i must confess, rather immethodically. [ ] the name is spelt no fewer than eight different ways--"jeffries," "jefferies," "jefferys," "jeffereys," "jefferyes," "jeffrys," "jeffryes," and "jeffreys," and he himself spelt it differently at different times of his life; but the last spelling is that which is found in his patent of peerage, and which he always used afterwards. [ ] "_le roy s'avisera_," the royal veto to a bill passed by the two houses. [ ] roger l'estrange was a noted pamphleteer, one of the oracles of the high church and tory party, and the founder of the first english newspaper.--_ed._ [ ] see the account of this trial in the life of north, lord guilford, ante, p. . [ ] see ante, p. . [ ] see life of saunders, ante, p. . [ ] evelyn, oct. , . "sir geo. jeffreys was advanced, reputed to be most ignorant, but most daring." [ ] stat. ed. enacted that if any outlaw yielded himself to the chief justice, &c., within a year, he should be discharged of the outlawry, and entitled to a jury. [ ] burn. own times, i. . "the king accompanied the gift with a piece of advice somewhat extraordinary from a king to a judge:--'my lord, as it is a hot summer, and you are going the circuit, i desire you will not drink too much.'" [ ] dangerfield had been a confederate of oates as one of the false witnesses to the pretended popish plot.--_ed._ [ ] for the disputes between them, see ante, p. - . [ ] ante, p. . [ ] this rigorous sentence was rigorously executed. on the day on which oates was pilloried in palace yard, he was mercilessly pelted, and ran some risk of being pulled in pieces; but in the city his partisans mustered in great force, raised a riot, and upset the pillory. they were, however, unable to rescue their favorite. it was supposed that he would try to escape the horrible doom which awaited him by swallowing poison. all that he ate and drank was therefore carefully inspected. on the following morning he was brought forth to undergo his first flogging. at an early hour an innumerable multitude filled all the streets from aldgate to the old bailey. the hangman laid on the lash with such unusual severity as showed that he had received special instructions. the blood ran down in rivulets. for a time the criminal showed a strange constancy; but at last his stubborn fortitude gave way. his bellowings were frightful to hear. he swooned several times; but the scourge still continued to descend. when he was unbound, it seemed that he had borne as much as the human frame can bear without dissolution. james was entreated to remit the second flogging. his answer was short and clear. "he shall go through with it, if he has breath in his body." an attempt was made to obtain the queen's intercession, but she indignantly refused to say a word in favor of such a wretch. after an interval of only forty-eight hours, oates was again brought out of his dungeon. he was unable to stand, and it was necessary to drag him to tyburn on a sledge. he seemed quite insensible, and the tories reported that he had stupefied himself with strong drink. a person who counted the stripes on the second day said that they were seventeen hundred. the bad man escaped with life, but so narrowly that his ignorant and bigoted admirers thought his recovery miraculous, and appealed to it as a proof of his innocence. the doors of the prison closed upon him. during many months he remained ironed in the darkest hole of newgate. it was said that in his cell he gave himself up to melancholy, and sat whole days uttering deep groans, his arms folded, and his hat pulled over his eyes. it was not in england alone that these events excited strong interest. millions of roman catholics, who knew nothing of our institutions or of our factions, had heard that a persecution of singular barbarity had raged in our island against the professors of the true faith, that many pious men had suffered martyrdom, and that titus oates had been the chief murderer. there was, therefore, great joy in distant countries when it was known that the divine justice had overtaken him. engravings of him, looking out from the pillory, and writhing at the cart's tail, were circulated all over europe; and epigrammatists, in many languages, made merry with the doctoral title which he pretended to have received from the university of salamanca, and remarked that since his forehead could not be made to blush, it was but reasonable that his back should do so. horrible as were the sufferings of oates, they did not equal his crimes. nevertheless, the punishment which was inflicted upon him cannot be justified. in sentencing him to be stripped of his ecclesiastical habit and imprisoned for life, the judges seem to have exceeded their legal power. they were undoubtedly competent to inflict whipping, nor had the law assigned a limit to the number of stripes; but the spirit of the law clearly was that no misdemeanor should be punished more severely than the most atrocious felonies. the worst felon could only be hanged. the judges, as they believed, sentenced oates to be scourged to death. that the law was defective, is not a sufficient excuse; for defective laws should be altered by the legislature, and not strained by the tribunals; and least of all should the law be strained for the purpose of inflicting torture and destroying life. that oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterward used as precedents for oppressing the innocent. thus it was in the present case. merciless flogging soon became an ordinary punishment for political misdemeanors of no very aggravated kind. men were sentenced for hasty words spoken against the government to pain so excruciating that they, with unfeigned earnestness, begged to be brought to trial on capital charges, and sent to the gallows. happily, the progress of this great evil was speedily stopped by the revolution, and by that article of the bill of rights which condemns all cruel and unusual punishments.--_macaulay's history of england._ [ ] fox's hist. james, ii. . [ ] macaulay gives the following account of this trial: "when the trial came on at guildhall, a crowd of those who loved and honored baxter filled the court. at his side stood doctor william bates, one of the most eminent nonconformist divines. two whig barristers of great note, pollexfen and wallop, appeared for the defendant. pollexfen had scarce begun his address to the jury, when the chief justice broke forth--'pollexfen, i know you well. i will set a mark on you. you are the patron of the faction. this is an old rogue, a schismatical knave, a hypocritical villain. he hates the liturgy. he would have nothing but long-winded cant without book;' and then his lordship turned up his eyes, clasped his hands, and began to sing through his nose, in imitation of what he supposed to be baxter's style of praying, 'lord, we are thy people, thy peculiar people, thy dear people.' pollexfen gently reminded the court that his late majesty had thought baxter deserving of a bishopric. 'and what ailed the old blockhead then,' cried jeffreys, 'that he did not take it?' his fury now rose almost to madness. he called baxter a dog, and swore that it would be no more than justice to whip such a villain through the whole city. "wallop interposed, but fared no better than his leader. 'you are in all these dirty causes, mr. wallop,' said the judge. 'gentlemen of the long robe ought to be ashamed to assist such factious knaves.' the advocate made another attempt to obtain a hearing, but to no purpose. 'if you do not know your duty,' said jeffreys, 'i will teach it you.' "wallop sat down, and baxter himself attempted to put in a word; but the chief justice drowned all expostulation in a torrent of ribaldry and invective, mingled with scraps of hudibras. 'my lord,' said the old man, 'i have been much blamed by dissenters for speaking respectfully of bishops.' 'baxter for bishops!' cried the judge; 'that's a merry conceit indeed. i know what you mean by bishops--rascals like yourself, kidderminster bishops, factious, snivelling presbyterians!' again baxter essayed to speak, and again jeffreys bellowed, 'richard, richard, dost thou think we will let thee poison the court? richard, thou art an old knave. thou hast written books enough to load a cart, and every book as full of sedition as an egg is full of meat. by the grace of god, i'll look after thee. i see a great many of your brotherhood waiting to know what will befall their mighty don. and there,' he continued, fixing his savage eye on bates, 'there is a doctor of the party at your elbow. but, by the grace of god almighty, i will crush you all!' "baxter held his peace. but one of the junior counsel for the defence made a last effort, and undertook to show that the words of which complaint was made would not bear the construction put on them by the information. with this view he began to read the context. in a moment he was roared down. 'you sha'n't turn the court into a conventicle!' the noise of weeping was heard from some of those who surrounded baxter. 'snivelling calves!' said the judge. "witnesses to character were in attendance, and among them were several clergymen of the established church. but the chief justice would hear nothing. 'does your lordship think,' said baxter, 'that any jury will convict a man on such a trial as this?' 'i warrant you, mr. baxter,' said jeffreys. 'don't trouble yourself about that.' jeffreys was right. the sheriffs were the tools of the government. the jury, selected by the sheriffs from among the fiercest zealots of the tory party, conferred for a moment, and returned a verdict of guilty. 'my lord,' said baxter, as he left the court, 'there was once a chief justice who would have treated me very differently.' he alluded to his learned and virtuous friend, sir matthew hale. 'there is not an honest man in england,' said jeffreys, 'but looks on thee as a knave.'" [ ] it is remarkable that the first common law judge, ever as such raised to the peerage, was this infamous jeffreys. we speak of lord coke, lord hale, and so of the other chief justices, but they were lords simply by their surnames and by virtue of their office, and not peers.--_ed._ [ ] ante, p. , _et seq._ [ ] bristol at this time was next to london in population, wealth, and commerce.--_ed._ [ ] macaulay states the number of the transported at eight hundred and forty-one, and of the hanged at three hundred and twenty.--_ed._ [ ] he bought with it a large estate, the name of which the people changed to aceldama, as being bought with innocent blood.--_ed._ [ ] perhaps this writer had in his eye the case of john tutchin, a noted political writer, satirized by pope, a mere boy at the time of the rebellion, and of whose case macaulay gives the following account: "a still more frightful sentence was passed on a lad named tutchin, who was tried for seditious words. he was, as usual, interrupted in his defence by ribaldry and scurrility from the judgment seat. 'you are a rebel; and all your family have been rebels since adam. they tell me that you are a poet. i'll cap verses with you.' the sentence was, that the boy should be imprisoned seven years, and should, during that period, be flogged through every market town in dorsetshire every year. the women in the galleries burst into tears. the clerk of the arraigns stood up in great disorder. 'my lord,' said he, 'the prisoner is very young. there are many market towns in our county. the sentence amounts to whipping once a fortnight for seven years.' 'if he is a young man,' said jeffreys, 'he is an old rogue. ladies, you do not know the villain as well as i do. the punishment is not half bad enough for him. all the interest in england shall not alter it.' tutchin, in his despair, petitioned, and probably with sincerity, that he might be hanged. fortunately for him, he was, just at this conjuncture, taken ill of the small pox, and given over. as it seemed highly improbable that the sentence would ever be executed, the chief justice consented to remit it in return for a bribe which reduced the prisoner to poverty. the temper of tutchin, not originally very mild, was exasperated to madness by what he had undergone. he lived to be known as one of the most acrimonious and pertinacious enemies of the house of stuart and of the tory party."--_ed._ [ ] ante, p. . [ ] one of the strongest testimonies against james is his own letter to the prince of orange, dated sept. , , in which, after giving him a long account of his fox-hunting, he says, "as for news, there is little stirring, but that the lord chief justice has almost done his campaign. he has already condemned several hundreds, some of which are already executed, some are to be, and the others sent to the plantations."--_dalrymple's app._ part ii. . the only public man who showed any bowels of compassion amidst these horrors was lord sunderland. whig party writers are at great pains to exculpate pollexfen, the great whig lawyer, who conducted all these prosecutions as counsel for the crown; but i think he comes in for no small share of the infamy then incurred, and he must be considered as principal _aide de camp_ to jeffreys in the _western campaign_. he ought to have told the jury that there was no case against the lady lisle, and when a few examples had been made, he ought to have stopped the prosecutions, or have thrown up his briefs. [ ] i hope i have not been prejudiced in my estimate of james's character by the consideration that when acting as regent in scotland he issued an order (afterwards recalled) for the utter suppression of the name of campbell, "which," says mackintosh, "would have amounted to a proscription of several noblemen, a considerable body of gentry, and the most numerous and powerful tribe in the kingdom." [ ] this "dispensing power" claimed by jeffreys and the english judges for james ii. was but a trifle compared to the "dispensing power" recently claimed by some of our american lawyers and judges for acts of congress. all that was claimed for james was, power to dispense with acts of parliament, while our american improvers upon this doctrine go so far as to claim for congress a power to dispense with and supersede the laws of god.--_ed._ [ ] whether diplomatic intercourse with the pope is now forbidden, depends upon the construction to be put upon the words, "shall hold _communion_ with the see or church of rome" in the bill of rights. this seems to refer to _spiritual_ communion only, or the queen would hold communion with the successor of mahomet by appointing an ambassador to the sublime porte. [ ] the strong analogy between these ecclesiastical commissioners and our recent american slave catching commissioners, both in powers, method of procedure, and object arrived at, has been already referred to, and can hardly fail to strike the reader.--_ed._ [ ] judge kane, in passmore williamson's case, went further than that. because he refused to obey the mandate of judge kane to produce in his court certain persons over whom he had no control, with a view to their surrender to slavery, judge kane, under the name of a contempt, sentenced him to an indefinite imprisonment.--_ed._ [ ] when a peer is tried in parliament before the house of lords, the lord high steward votes like the rest of the peers, who have all a right to be present; but if the trial be out of parliament, the lord high steward is only the judge to give direction in point of law, and the verdict is by the lords triers specially summoned. [ ] in james's memoirs, all the blame of this prosecution is thrown upon jeffreys; but it is more probable that he only recklessly supported his master. [ ] the arrangement of counsel in this celebrated case was very whimsical. the bishops were defended by pemberton, the ex-chief justice, who had presided at several of the late state trials, by levinz, sawyer, and finch, who had conducted them very oppressively for the crown, and by pollexfen, treby, and somers, considered steady whigs. [ ] it was pretended by the anti-jacobites, that is, the enemies of james and the exiled stuarts, that the infant had been smuggled into the queen's bed in a warming-pan.--_ed._ [ ] th november, . vernon, , _searle_ v. _lane_. by a reference to the minute books in the registrar's office, it appears that jeffreys sat again on monday, nov. , when he decided _duval_ v. _edwards_, a case on exceptions, nine in number, giving a separate judgment on each. he did not sit on the th, but he did on the th, which was the last day of term. so late as the th of december he sat and heard several petitions. in the evening of this day the great seal was taken from him. [ ] "bottomry bond." this contraction shows the etymology of an elegant english word from "bottom," which dr. johnson chooses to derive from the dutch word "bomme." [ ] _i. e._ the principal being put in hazard, the interest was not usurious. [ ] the following is from macaulay's elaborate portraiture of jeffreys on the bench: "all tenderness for the feelings of others, all self-respect, all sense of the becoming, were obliterated from his mind. he acquired a boundless command of the rhetoric in which the vulgar express hatred and contempt. the profusion of maledictions and vituperative epithets which composed his vocabulary could hardly have been rivalled in the fish-market or the bear-garden. his countenance and his voice must always have been unamiable; but these natural advantages--for such he seems to have thought them--he had improved to such a degree that there were few who, in his paroxysms of rage, could see or hear him without emotion. impudence and ferocity sat upon his brow. the glare of his eyes had a fascination for the unhappy victim on whom they were fixed; yet his brow and eye were said to be less terrible than the savage lines of his mouth. his yell of fury, as was said by one who had often heard it, sounded like the thunder of the judgment day." [ ] down to this time trials at nisi prius had not assumed their present shape. the issue being read to the jury, the evidence was given, and with hardly any speeches from counsel, all seems to have been left to the judge. [ ] state trials, . [ ] the plan was formed of ruling by a standing army. but without a parliament, how was this army to be kept in a proper state of discipline? in time of war, or during a rebellion, troops in the field were subject to martial law, and they might be punished, by sentence of a court martial, for mutiny or desertion. but the country was now in a state of peace and profound tranquillity; and the common law, which alone prevailed, knew no distinction between citizen and soldier; so that, if a lifeguardsman deserted, he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery. while the king's military force consisted of a few regiments of household troops, with high pay, desertion was not to be apprehended, and military offences were sufficiently punished by dismission from the service. but james found it impossible to govern the numerous army which he had collected at hounslow without the assistance of martial law; and he contended that, without any act of parliament, he was at all times entitled, by virtue of his prerogative, to put martial law in force against military men, although it could only be put in force against civilians when war or rebellion was raging in the kingdom. the question first arose at the old bailey, before sir john holt, then recorder of london, and he decided against the crown, as might have been expected; for, while avoiding keen partisanship in politics, he had been always whiggishly inclined. james thought he was quite secure by appealing to the ultra tory, lord chief justice herbert. to the utter amazement of the king and the courtiers, this honorable, although shallow, magistrate declared that, without an act of parliament, all laws were equally applicable to all his majesty's subjects, whether wearing red coats or gray. being taunted with inconsistency in respect of his judgment in favor of the dispensing power, he took this distinction, "that a statute altering the common law might be suspended by the king, who is really the lawgiver, notwithstanding the form that he enacts 'with the _assent_ of the lords spiritual and temporal, and commons;' but that the common law cannot be altered by the king's sole authority, and that the king can do nothing contrary to the common law, as that must be considered coeval with the monarchy." james, with the infatuated obstinacy which was now driving him to destruction, set this opinion at defiance; and, encouraged by jeffreys, caused a soldier to be capitally prosecuted, at the reading assizes, for deserting his colors. the judges who presided there resorted to some obsolete, inapplicable act of parliament, and were weak enough to lay down the law in the manner suggested to them by the chancellor, so that a conviction was obtained. to give greater solemnity and _eclat_ to the execution, the attorney general moved the court of king's bench for an order that it might take place at plymouth, in sight of the garrison from which the prisoner had run away. but herbert peremptorily declared that the court had no jurisdiction to make such an order, and prevailed on his brother wythens to join with him in this opinion. mr. attorney took nothing by his motion, but the recreant chief justice and the recreant puisne were both next morning dismissed from their offices, to make way for the most sordid wretches to be picked up in westminster hall--sir robert wright and sir richard allibone, a professed papist. [ ] the two clergymen who were most applauded on this occasion were the bold one, who, refusing to obey the royal mandate, took for his text "be it known unto thee, o king, that we will not serve thy gods, nor worship the golden image which thou hast set up;" and the humorous one, who, having said, "my brethren, i am obliged to read this declaration, but you are not obliged to listen to it," waited till they were all gone, clerk and all, before the reading of the declaration began. [ ] more than one american advocate for treating the fugitive slave act as a law, and submitting to it as such, till repealed, has preached precisely this doctrine.--_ed._ [ ] state trials, - . [ ] it was supposed that he was jealous of williams, the solicitor general, who had been promised by james the highest offices of the law if he could convict the bishops. this may account for a sarcasm he levelled at his rival during the trial. williams, having accounted for a particular vote of the house of commons in the reign of james ii., when he himself was a member and suspected of bribery, said "there was a lump of money in the case." wright, in referring to this, observed, "mr. solicitor tells you the reason, 'there was a lump of money in the case;' but i wonder, indeed, to hear it come from him." williams, understanding the insinuation, exclaimed, "my lord, i assure you i never gave my vote for money in my life." [ ] a similar and alarming reaction towards despotism has exhibited itself in america since the passage of the fugitive slave act of , in the combination of so many distinguished jurists and divines to denounce the doctrine of a "higher law," and to advocate the "divine right" of congress to make enactments according to its own pleasure and judgment, which enactments are to take precedence as rules of conduct of the individual conscience, which it is attempted to silence by stigmatizing it as a prejudice. not only does there seem reason to dread that we may soon be under legislators and an executive who, believing in the divine right of those in authority, will not only applaud but act upon the principles of arbitrary government, we lately have been and still are, so far as the federal executive and the federal senate are concerned, under precisely such ministers and legislators; and having lately had some such experience of the practical results of such principles in the administration of justice, what more natural than to compare our sufferings with those of our british forefathers, and to seek to learn from their experience the natural cure for such evils?--_ed._ [ ] jane johnson's suggestions, on the ground that she was a stranger to the proceeding, were allowed no weight towards the liberation of williamson, and were refused admittance on the files of the court. at the same time, the suggestions of mr. cadwallader, another stranger, were eagerly clutched at and put upon the record, with a view to better the position of judge kane. [ ] the account of the final proceedings is from the philadelphia _evening bulletin_. * * * * * transcriber's note: footnote appears on page of the text, but there is no corresponding marker on the page. mismatched quotation marks in the original were not corrected. villainage in england vinogradoff villainage in england essays in english mediaeval history by sir paul vinogradoff oxford at the clarendon press _oxford university press, ely house, london w. _ glasgow new york toronto melbourne wellington cape town salisbury ibadan nairobi lusaka addis ababa bombay calcutta madras karachi lahore dacca kuala lumpur hong kong tokyo first published reprinted lithographically in great britain at the university press, oxford by vivian ridler printer to the university preface a foreigner's attempt to treat of difficult and much disputed points of english history requires some justification. why should a russian scholar turn to the arduous study of english mediaeval documents? can he say anything of sufficient general interest to warrant his exploration of so distant a field? the first question is easier to answer than the second. there are many reasons why we in russia are especially keen to study what may be called social history--the economic development of nations, their class divisions and forms of co-operation. we are still living in surroundings created by the social revolution of the peasant emancipation; many of our elder contemporaries remember both the period of serfdom and the passage from it to modern life; some have taken part in the working out and putting into practice of the emancipating acts. questions entirely surrendered to antiquarian research in the west of europe are still topics of contemporary interest with us. it is not only the civil progress of the peasantry that we have to notice, but the transformation and partial decay of the landed gentry, the indirect influence of the economic convulsions on politics, ideas, and morality, and, in a more special way, the influence of free competition on soil and people that had been fettered for ages, the passage from 'natural husbandry' to the money system, the substitution of rents for labour, above all, the working of communal institutions under the sway of the lord and in their modern free shape. government and society have to deal even now with problems that must be solved in the light of history, if in any light at all, and not by instinct groping in the dark. all such practical problems verge towards one main question: how far legislation can and should act upon the social development of the agrarian world. are economic agencies to settle for themselves who has to till land and who shall own it? or can we learn from western history what is to be particularly avoided and what is to be aimed at? i do not think that anybody is likely to maintain at the present day, that, for instance, a study of the formation and dissolution of the village community in the west would be meaningless for politicians and thinkers who have to concern themselves with the actual life of the village community in the east. another powerful incitement comes from the scientific direction lately assumed by historical studies. they have been for a long time very closely connected with fine literature: their aim was a lifelike reproduction of the past; they required artistic power, and stirred up feelings as well as reflective thought. such literary history has a natural bent towards national tradition, for the same reason that literature is attracted by national life: the artist gains by being personally in touch with his subject; it is more easy for him to cast his material into the right mould. ancient history hardly constitutes an exception, because the elements of classical civilisation have been appropriated by european nations so as to form part of their own past. what i call literary history has by no means done all its work. there is too much in the actions of men that demands artistic perception and even divination on the part of the historian, to allow this mode of treatment to fall into decay. but nobody will deny that historical study is extending more and more in the direction of what is now called anthropology and social science. historians are in quest of laws of development and of generalisations that shall unravel the complexity of human culture, as physical and biological generalisations have put into order our knowledge of the phenomena of nature. there is no subject more promising from this point of view than the history of social arrangements. it borders on political economy, which has already attained a scientific standing; part of its material has been fashioned by juridical doctrine and practical law, and thereby moulded into a clear, well-defined shape; it deals with facts recurring again and again with much uniformity, and presenting great facilities for comparison; the objects of its observation are less complex than the phenomena of human thought, morality, or even political organisation. and from the point of view of the scientific investigator there can be no other reason for taking up a particular epoch or nation, but the hope of getting a good specimen for analysis, and of making use of such analysis for purposes of generalisation. now i think that there can be no better opportunity for studying early stages of agrarian development than that afforded by english mediaeval history. the sources of information are comparatively abundant in consequence of the powerful action of central authority; from far back in the feudal time we get legal and fiscal documents to enlighten us, not only about general arrangements but even about details in the history of landed property and of the poorer classes. and the task of studying the english line of development is rendered especially interesting because it stands evidently in close connexion with the variations of the same process on the continent. scandinavian, german, french, italian, and spanish history constantly present points of comparison, and such differences as there are may be traced to their origins just because so many facts are in common to start with. i think that all these considerations open a glorious vista for the enquirer, and the interest excited by such publications as those of fustel de coulanges proves that the public is fully alive to the importance of those studies in spite of their dry details. what could i personally undertake to further the great objects of such investigation? the ground has been surveyed by powerful minds, and many controversies show that it is not an easy one to explore. two main courses seemed open in the present state of the study. a promising method would have been to restrict oneself to a definite provincial territory, to get intimately acquainted with all details of its geography, local history, peculiarities of custom, and to trace the social evolution of this tract of land as far back as possible, without losing sight of general connexions and analogies. how instructive such work may become may be gathered from lamprecht's monumental monograph on the moselland, which has been rightly called by its author 'deutsches wirthschaftsleben im mittelalter.' or else, one might try to gather the general features of the english mediaeval system as embodied in the numerous, one might almost say innumerable, records of the feudal period, and to work back from them into the imperfectly described pre-feudal age. such enquiry would necessarily leave out local peculiarities, or treat them only as variations of general types. from the methodical point of view it has the same right to existence as any other study of 'universalities' which are always exemplified by individual beings, although the latter are not made up by them, but appear complicated in every single case by additional elements. being a foreigner, i was driven to take the second course. i could not trust myself to become sufficiently familiar with local life, even if i had the time and opportunity to study it closely. i hope such investigations may be taken up by scholars in every part of england and may prosper in their hands; the gain to general history would be simply invaluable. and i was not sorry of the necessity of going by the second track, because i could hope to achieve something useful even if i went wrong on many points. every year brings publications of cartularies, surveys, court-rolls; the importance of these legal and economic records has been duly realised, and historians take them more and more into account by the side of annals and statutes. but surely some attempt ought to be made to concentrate the results of scattered investigation in this field. the cartularies of ramsey, battle, bury st. edmunds, st. paul's, the hundred rolls, the manorial records of broughton and king's ripton, give us material of one and the same kind, which, for all its wealth and variety, presents great facilities for classification and comparison[ ]. i have seen a good many of these documents, both published and in manuscript, and i hope that my book may be of some service in the way of concentrating this particular study of manorial records. i am conscious how deficient my work is in many respects; but if by the help of corrections, alterations, additions, it may be made to serve to some extent for the purpose, i shall be glad to have written it. i may say also that it is intended to open the way, by a careful study of the feudal age, for another work on the origins of english peasant life in the norman and pre-norman periods. one pleasant result the toil expended on mediaeval documents has brought me already. i have come into contact with english scholars, and i can say that i have received encouragement, advice, and support in every case when i had to apply for them, and in so large and liberal a measure as i could hardly hope for or expect. of two men, now dead, i have to repeat what many have said before me. henry bradshaw was the first to lay an english ms. cartulary before me in the cambridge university library; and in all my travels through european libraries and archives i never again met such a guide, so ready to help from his inexhaustible store of palaeographical, linguistic and historical learning. walford selby was an invaluable friend to me at the record office--always willing and able to find exactly what was wanted for my researches. it would be impossible to mention all those from whom i have received help in one way or another, but i should like to speak at least of a few. i have the pleasant duty of thanking the marquis of bath for the loan of the longleat ms. of bracton, which was sent for my use to the bodleian library. lord leigh was kind enough to allow of my coming to stoneleigh abbey to work at a beautiful cartulary in his possession, and the hon. miss cordelia leigh took the pains of making for me some additional extracts from that document. sir frederick pollock and mr. york powell have gone through the work of reading my proofs, and i owe to them many suggestions for alterations and improvements. i have disputed some of mr. seebohm's opinions on mediaeval history; but i admit freely that nobody has exercised a stronger influence on the formation of my own views, and i feel proud that personal friendship has given me many opportunities of admiring the originality and width of conception of one who has done great things for the advancement of social history. as for f.w. maitland, i can only say that my book would hardly have appeared at all if he had not taken infinite trouble to further its publication. he has not only done everything in his power to make it presentable to english readers in style and wording, but as to the subject-matter, many a friendly suggestion, many a criticism i have had from him, and if i have not always profited by them, the blame is to be cast entirely on my own obstinacy. paul vinogradoff. contents page introduction first essay. _the peasantry of the feudal age._ chapter i. the legal aspect of villainage. general conceptions chapter ii. rights and disabilities of the villain chapter iii. ancient demesne chapter iv. legal aspect of villainage. conclusions chapter v. the servile peasantry of manorial records chapter vi. free peasantry chapter vii. the peasantry of the feudal age. conclusions second essay. _the manor and the village community._ chapter i. the open field system and the holdings chapter ii. rights of common chapter iii. rural work and rents chapter iv. the lord, his servants and free tenants chapter v. the manorial courts chapter vi. the manor and the village community. conclusions appendix index footnotes introduction. when the time comes for writing a history of the nineteenth century, one of the most important and attractive chapters will certainly be devoted to the development of historical literature. the last years of a great age are fast running out: great has been the strife and the work in the realm of thought as well as in the material arrangement of life. the generations of the nineteenth century have witnessed a mighty revival of religious feeling; they have attempted to set up philosophical systems as broad and as profound as any of the speculations of former times; they have raised the structure of theoretical and applied science to a height which could hardly have been foreshadowed some two hundred years ago. and still it is to historical study that we have to look as the most characteristic feature of the period. medieval asceticism in its desperate struggle against the flesh, and puritanism with its sense of individual reconciliation with god, were both more vigorous forms of religious life than the modern restorations of faith and church, so curiously mixed up with helplessness, surrender of acquired truth, hereditary instincts, and utilitarian reflection. in philosophy, hegel's metaphysical dialectic, schopenhauer's transformation of kant's teaching, and the attempts of english and french positivism at encyclopaedical science may be compared theoretically with plato's poetical idealism or with the rationalistic schools of the seventeenth and eighteenth centuries. but it would be difficult to deny, that in point of influence on men's minds, those older systems held a more commanding position than these: hegel seems too arbitrary and phantastical, schopenhauer too pessimistic, positivism too incomplete and barren as to ultimate problems to suit the practical requirements of philosophy; and people are already complaining of the decay of philosophical study. in science, again, the age of darwin is certainly second to none, but it has to share its glory with the age of newton, and it may be reasonably doubted whether the astronomer, following in the footsteps of galileo and kepler, was not actuated by even greater thirst and pride of knowledge than the modern biologist or geologist. it is otherwise with regard to history. [progress of historical methods.] students of science are wont to inveigh against the inexact character of historical research, its incoherence and supposed inability to formulate laws. it would be out of place here to discuss the comparative value of methods and the one-sided preference given by such accusers to quantitative analysis; but i think that if these accusers were better acquainted with the subject of their attacks, or even more attentive to the expressions of men's life and thought around them, they would hardly dare to maintain that a study which in the short space of a century has led to a complete revolution in the treatment of all questions concerning man and society, has been operating only by vague assumptions and guesses at random. an investigation into methods cannot be undertaken in these introductory pages, but a general survey of results may be attempted. if we merely take a single volume, tocqueville's ancien régime, and ask ourselves whether anything at all like it could have been produced even in the eighteenth century, we shall have a sense of what has been going on in the line of historical study during the nineteenth. ever since niebuhr's great stroke, historical criticism has been patiently engaged in testing, sifting, and classifying the original materials, and it has now rendered impossible that medley of discordant authorities in which eighteenth-century learning found its confused notions of romans in french costume, or sought for modern constitutional ideas as manifest in the policy of the franks. whole subjects and aspects of social life which, if treated at all, used to be sketchily treated in some appendix by the historian, or guessed at like a puzzle by the antiquarian, have come to the fore and are recognised as the really important parts of history. in a word, the study of the past vacillates no longer between the two extremes of minute research leading to no general results and general statements not based on any real investigation into facts. the laws of development may still appear only as dim outlines which must be more definitely traced by future generations of workers, but there is certainly a constant progress of generalisation on firmly established premises towards them. [growing influence of history on kindred subjects.] what is more striking, the great change in the ways and results of history has made itself felt on all the subjects which surround it. political economy and law are assuming an entirely new shape under the influence of historical conceptions: the tendency towards building up dogmatic doctrine on the foundation of abstract principle and by deductive methods is giving way to an exact study of facts in their historical surroundings, and to inquiries into the shifting conditions under which the problems of social economy and law are solved by different epochs. as a brilliant representative of legal learning has ironically put it, it would be better for one nowadays to be convicted of petty larceny than to be found deficient of 'historical-mindedness.' the influence of historical speculation on politics is yet more definite and direct: even the most devoted disciples of particular creeds, the most ardent advocates of reform or reaction dare not simply take up the high standing ground of abstract theory from which all political questions were discussed less than a hundred years ago: the socialist as well as the partisan of aristocracy is called on to make good his contention by historical arguments. it may be urged that the new turn thus taken is not altogether beneficial for practical life. men of fanatical conviction were more likely to act and die for the eternal truth revealed to them, than people reflecting on the relative character of human arrangements. but can one get blissfully onesided by merely wishing to be so? and is it not nobler to seek knowledge in the hope that it will right itself in the end, than to reject it for the sake of being comfortable? however this may be, the facts can hardly be denied: the aspiration of our age is intensely historical; we are doing more for the relative, than for the absolute, more for the study of evolution than for the elucidation of principles which do not vary. [sketch of the literary development of social history as a necessary introduction to its treatment.] it will not be my object to give a sketch of the gradual rise of historical study in the present century: such an undertaking must be left to later students, who will command a broader view of the subject and look at it with less passion and prejudice than we do now. but lord acton's excellent article[ ] has shown that the task is not quite hopeless even now, and i must try, before starting on my arduous inquiry into the social history of the middle ages in england, to point out what i make of the work achieved in this direction, and what object i have in view myself. quite apart from any questions of detail which may come under consideration as the treatment of the subject requires it, i have to say in what perspective the chief schools of historians present themselves to my view, in what relation they stand to each other, to show how far they have pushed the inquiry, and what problems still remain unsolved. such a preliminary sketch must not be carried out with a view to criticism and polemics, but rather as the general estimate of a literary movement in its various phases. [late recognition of the value of social history.] it is a remarkable fact, that the vast importance of the social side of history has been recognised later than any other aspect of that study. stating things very broadly, one may say that it was pushed to the fore about the middle of our century by the interests and forces at play in actual life: before the political tendency predominates; after the tide turns in favour of the social tendency. i mean that in the first half of the century men were chiefly engaged in reorganising the state, in trying to strike a balance between the influence of government and the liberties of the people. the second half of the century is engrossed by the conflict between classes, by questions of economical organisation, by reforms of civil order. historical literature, growing as it was in the atmosphere of actual life, had to start from its interests, to put and solve its problems in accordance with them. but it is no wonder that the preceding period had already touched upon a number of questions that were fated to attract most attention in later research. the rise of the constitution, for instance, could not be treated without some regard being paid to the relative position of classes; it would have been out of the question to speak of political feudalism without taking into account the social bearing of the system. and so a sketch of the literary treatment of social questions must begin with books which did not aim directly at a description of social history. [characteristics of the work done in the seventeenth and eighteenth centuries.] i shall not detain the reader over the work achieved in the seventeenth and eighteenth centuries. the learning of a selden or of a madox is astounding, and a student of the present day has to consult them constantly on particular questions; but they never had in mind to embrace the history of their country as a whole. facts are brought into a system by coke, but the system is strictly a legal one; undigested historical knowledge is made to yield the necessary store of leading cases, and, quite apart from the naive perversion of most particulars, the entire view of the subject is thoroughly opposed to historical requirements, for it makes the past an illustration of the present, and regards it as planned on the same lines. there is no lack of books setting forth historical proof for some favourite general thesis or arranging facts according to some general idea, but such attempts were distinguished by unbounded imagination and by endless sacrifices of fact to the object of the writer's devotion. the curious literary byplay to the struggle of political party which aug. thierry[ ] has artistically illustrated in france from the writings of boulainvilliers and dubos, mably and lézardière, could certainly be matched in england by a tale of the historical argumentation of brady[ ], or petyt[ ], or granville sharp. nothing can be more eloquent in a sense than the title given by this last author to his book on the system of frankpledge:--"an account of the constitutional english polity of congregational courts, and more particularly of the great annual court of the people, called the view of frankpledge, wherein the whole body of the nation was arranged into the regular divisions of tythings, hundreds, etc.:--the happy effect of that excellent institution, in preventing robberies, riots, etc., whereby, in law, it was justly deemed 'summa et maxima securitas:'--that it would be equally beneficial to all other nations and countries, as well under monarchical as republican establishments; and that, to the english nation in particular, it would afford an effectual means of reforming the corruption of parliament by rendering the representation of the people perfectly equal, in exact numerical proportion to the total number of householders throughout the whole realm[ ]." historical research, in the true sense of the word, was indeed making its first appearance in the eighteenth century, and it was more fruitful in england than in any other country, because england was so far ahead of the continent in its political condition: the influence of an intelligent society in political affairs had for its counterpart a greater insight into the conditions of political development. but the great english historians of the eighteenth century were looking to problems in other fields than that of social history. robertson was prompted by an interest in the origins of that peculiar community called western europe, so distinctly dismembered in its component states and so closely united by ideal and material ties; gibbon could see the shadows of the old world in which the new world was living; both had been attracted to research by an admirable sense of influences deeper and stronger than nationality, or state, or class, and both remained indifferent to the humbler range of english social history. hume took his stand on england, but he had to begin with a general outline and the explanation of the more apparent changes in state and church. [blackstone's commentaries.] in this way current notions on our questions remained towards the close of the eighteenth century still undisturbed by writers of a high order. we may take as a fair sample of such current notions sir william blackstone's historical digressions, especially those in the second volume of his commentaries[ ]. there is no originality about them, and the lack of this quality is rather an advantage in this case: it enables us through one book to glance at an entire literature. i may be allowed to recall its most striking points to the mind of my readers. the key to the whole medieval system and to the constitution emerging from it is to be found in feudalism. 'the constitution of feuds had its original from the military policy of the northern or celtic nations, the goths, the huns, the franks, the vandals, and the lombards, who poured themselves into all the regions of europe, at the declension of the roman empire. it was brought by them from their own countries, and continued in their respective colonies as the most likely means to secure their new acquisitions, and to that end large districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the inferior officers and most deserving soldiers.' 'scarce had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of europe. wherefore most, if not all, of them thought it necessary to enter into the same or a similar plan of policy. and thus, in the compass of a very few years, the feudal constitution, or the doctrine of tenure, extended itself over all the western world.' 'but this feudal polity, which was thus by degrees established over all the continent of europe, seems not to have been received in this part of our island, at least not universally and as a part of our national constitution, till the reign of william the norman. this introduction, however, of the feudal tenures into england by king william does not seem to have been effected immediately after the conquest, nor by the mere arbitrary will and power of the conqueror, but to have been gradually established by the norman barons, and afterwards universally consented to by the great council of the nation.' 'the new polity therefore seems not to have been _imposed_ by the conqueror, but nationally and freely adopted by the general assembly of the whole realm.' 'by thus consenting to the introduction of feudal tenures, our english ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military system. but whatever their meaning was, the norman interpreters ... gave a very different construction to this proceeding, and thereupon took a handle to introduce, not only the rigorous doctrine which prevailed in the duchy of normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations.' 'and from hence arises the inference, that the liberties of englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, but a restoration of the ancient constitution, of which our ancestors had been defrauded by the art and finesse of the norman lawyers, rather than deprived by the force of the norman arms.' the structure of the component parts is (for blackstone) as ancient as the constitution of the whole. the english manor is of saxon origin in all its essential characteristics, but the treatment of the people within the manor underwent a very notable change in consequence of the norman invasion. in saxon times the common people settled on folkland were immersed in complete slavery. their condition was improved by the conquest, because the normans admitted them to the oath of fealty. and the improvement did not stop there: although the peasantry held their plots only by base tenure and at the lord's will, the lord allowed in most cases a hereditary possession. in this way out of the lord's will custom arose, and as custom is the soul or vital principle of common law, the courts undertook in the end to protect the base tenure of the peasantry against the very lord whose will had created it. such was the rise of the copyhold estate of modern times. blackstone's work is a compilation, and it would be out of the question to reduce its statements to anything like consistency. the rationalistic mode of thought which has left such a peculiar stamp on the eighteenth century, appears in all its glory in the laying out of the wise military polity of feudalism. but scarcely has our author had time to show the rapid progress of this plan all round europe, when he starts on an entirely new tack, suggested by his wish to introduce a historical justification of constitutional monarchy. feudal polity is of late introduction in england, and appears as a compact between sovereign and subjects; original freedom was not destroyed by this compact, and later infringements of contractual rights by kings ultimately led to a restoration and development of ancient liberties. in the parts of the treatise which concern private law the keynote is given throughout by that very norman jurisprudence on which such severe condemnation is passed with regard to public law. the conquest is thus made to appear alternately as a source of danger, struggle, and hardship from one point of view, and as the origin of steady improvement in social condition from another. in any case the aristocratic cast of english life is deduced from its most ancient origins, and all the rights of the lower orders are taken as the results of good-humoured concession on the part of the lords of the soil and of quiet encroachment against them. [revolution in historical literature. the romantic school.] statements and arguments in blackstone's style could hold water only before that great crisis in history and historical literature by which the nineteenth century was ushered into the world. the french revolution, and the reaction against it, laid open and put to the test the working of all the chief forces engaged in historical life. government and social order, nationality and religion, economic conditions and modes of thought, were thrown into the furnace to be consumed or remoulded. ideas and institutions which had towered over centuries went down together, and their fall not only brought home the transitory character of human arrangements, but also laid bare the groundwork of society, which however held good in spite of the convulsions on its surface. the generation that witnessed these storms was taught to frame its politics and to understand history in a new fashion[ ]. the disorderly scepticism of the eighteenth century was transformed by niebuhr into a scientific method that paved the way by criticism to positive results. on the other hand, the utopian doctrines of political rationalism were shattered by savigny's teaching on the fundamental importance of tradition and the unconscious organic growth of nations. in his polemic with thibaut, the founder of the historical school of law enters a mighty protest against wanton reform on the ground of a continuity of institutions not less real than the continuity of language, and his 'history of roman law during the middle ages' demonstrated that even such a convulsion as the barbarian invasion was not sufficient to sweep away the foundations of law and social order slowly formed in the past. eichhorn's 'history of german public and private law' gave detailed expression to an idea which occurs also in some of savigny's minor works--to the idea, namely, that the german nations have had to run through their history with an engrained tendency in their character towards political dismemberment and social inequality. this rather crude attempt at generalising out some particular modern features and sanctioning them by the past is of historical interest, because it corresponds to the general problem propounded to history by the romantic school: viz. to discover in the various manifestations of the life of a nation its permanent character and the leading ideas it is called to embody in history. the comparative soundness of the english system had arrayed it from the very beginning on the side of conservatism against revolution, and burke was the first to sound the blast of a crusade against subversive theories. no wonder the historical discoveries on the continent found a responsive echo in english scholarship. allen[ ] took up the demonstration that the royal power in england had developed from the conceptions of the roman empire. palgrave[ ] gave an entirely new construction of anglo-saxon history, which could not but exercise a powerful influence on the study of subsequent periods. his book is certainly the first attempt to treat the problems of medieval social history on a large scale and by new methods. it deserves special attention[ ]. [sir francis palgrave.] the author sat down to his work before the revolution of , although his two volumes were published in . he shares the convictions of very moderate liberalism, declares in favour of the gradual introduction of reforms, and against any reform not framed as a compromise between actual claims. custom and tradition did not exclude change and development in england, and for this reason the movement towards progress did not tear that people from the inheritance of their ancestors, did not disregard the mighty agency of historical education. in order to study the relative force of the elements of progress and conservatism in english history, palgrave goes behind the external play of institutions, and tries to connect them with the internal growth of legal principles. it is a great, though usual, mistake to begin with political events, to proceed from them to the study of institutions, and only quite at the end to take up law. the true sequence is the inverse one. and in england in particular the constitution, with all its showy and famous qualities, was formed under the direct influence of judicial and legal institutions. in accordance with this leading view palgrave's work begins by a disquisition on classes, forms of procedure and judicial organisation, followed up by an estimate of the effects of the different conquests, and ultimately by an exposition of the history of government. we need not feel bound by that order, and may start from the conclusion which gives the key to palgrave's whole system. the limited monarchy of england is a result of the action of two distinct elements, equally necessary for its composition. it is a manifestation of the monarchical power descended both in principle and in particular attributes from the roman empire. if this political idea had not been at work the kingdoms of the barbarians would have presented only loose aggregates of separate and self-sufficient political bodies; on the other hand, if this political idea had been supreme, medieval kings would have been absolute. the principles of teutonic and of roman polity had to work together, and the result was the medieval state with an absolute king for its centre, and a great independence of local parts. the english system differed from the continental in this way, that in england the free judicial institutions of the localities reacted on the central power, and surrounded it by constitutional limitations, while the continent had to content itself with estates of a very doubtful standing and future. it is easy to see in this connexion how great an importance we must assign to the constitution of local courts: the shires, hundreds, and townships are not mere administrative divisions, but political bodies. that the kingdom formed itself on their basis, not as an absolute but as a parliamentary monarchy, must be explained in a great measure by the influence of the norman conquest, which led to a closer union of the isolated parts, and to a concentration of local liberty in parliament. but (such is palgrave's view) the importance of conquests has been greatly overrated in history. the barbarian invasion did not effect anything like a sudden or complete subversion of things; it left in force and action most of the factors of the preceding period. the passage from one rule to another was particularly easy in england, as most tribes which occupied the island were closely related to each other. palgrave holds that the britons, anglo-saxons, danes, and normans all belong to one and the same teutonic race. there were, of course (he allows), celtic elements among the britons, but the greater part consisted of belgian kymrys, whose neighbours and kin are to be found on the continent as saxons and frisians. the conquest of the island by bands of seafaring saxons did not lead by any means to the wholesale destruction and depopulation which the legendary accounts of the chronicles report. the language of the britons has not been preserved, but then no more has the celtic language in gaul. the danish and norman invasions had even less influence on social condition than the saxon. it is only the roman occupation that succeeded in introducing into the life of this island important and indestructible traits. if we look at the results of all these migrations and ethnographical mixtures, we have first to notice the stratifications of english society according to rank. it is settled definitely enough in the saxon period on an aristocratic basis. in the main, society consists of eorls and ceorls, noblemen and serfs. the difference does not consist merely in a diversity of legal value, social influence and occupation, but also in the fact that the ceorl may economically and legally be dependent on the eorl, and afterwards on the thane. how did this aristocratic constitution arise? social distinctions of this kind may sometimes originate in the oppression of the weak by the strong, and in voluntary subjection, but, as a rule, they go back to conquest. there is every reason to believe that the anglo-saxon conquerors, who were very few in number, became the privileged class of the new states, and reduced the britons to serfdom; a corroboration of this assumption may be found in the fact that the services of celtic and saxon peasantry are extremely alike. it is more difficult to trace the influence of different races in the agrarian system, of which the township or manor is the unit. it is by comparing it with the forms in its immediate neighbourhood that one gets to understand its origin. the roman organisation of husbandry and ownership on the basis of individualism is too well known to be described. in marked contrast with it stands the celtic community, of which survivals were lingering for a long time in ireland and wales. here the land is in the ownership of tribal groups: rights of individuals and families expand and collapse according to the requirements and decisions of the entire tribe; there is no hereditary succession, but every grown-up clansman has a claim to be endowed with a plot of land, and as a consequence of this, all land in separate possession is constantly liable to be divided by the tribal community. the anglo-saxon system is an intermediate stage between roman individualism and celtic communalism. no wonder that the saxons, who at home followed a system closely resembling the celtic, modified it when they got acquainted with roman forms and entered into their roman inheritance in great britain. the mixed organisation of the township was the result of the assimilation. [estimate of palgrave's work.] such are in the main those conclusions of palgrave which have a direct bearing on the questions before us. it is easy to perceive that they are permeated by certain very general historical conceptions. he is greatly impressed by the 'vis inertiae' of social condition, and by the continuity of historical development arising from it. and so in his work the british population does not disappear without leaving any traces of its existence; the roman dominion exercises a most conspicuous influence on important aspects of later condition--on central power, feudalism, and agrarian organisation: the most recent of the conquests--the norman invasion--is reduced to a comparatively secondary share in the framing of society. the close connexion between palgrave's ideas and the currents of thought on the continent is not less notable in his attempts to determine the peculiarities of national character as manifested in unconscious leanings towards certain institutions. the teutonic system is characterised by a tendency towards federalism in politics and an aristocratic arrangement of society. the one tendency explains the growth of the constitution as a concentration of local self-government, the other leads from the original and fundamental distinction between a privileged class and a servile peasantry to the original organisation of the township under a lord. there can be no question as to the remarkable power displayed in palgrave's work, or as to the value of his results. he had an enormous and varied store of erudition at his command, and the keenest eye for observation. no wonder that many of his theories on particular subjects have been eagerly taken up and worked out by later scholars. but apart from such successful solutions of questions, his whole conception of development was undoubtedly very novel and fruitful. one of palgrave's main positions--the intimate connexion between the external history of the constitution and the working of private law in the courts--opened a wholly new perspective for the study of social history. but naturally enough the first cast turned out rather rough and distorted. palgrave is as conspicuous for his arbitrary and fanciful treatment of his matter, as for his learning and ingenuity. he does not try to get his data into order or completeness, and has no notion of the methods of systematic work. comparisons of english facts with all kinds of phenomena in the history of kindred and distant peoples sometimes give rise to suggestive combinations, but, in most cases, out of this medley of incongruous things they lead only to confusion of thought. in consequence of all these drawbacks, palgrave's attempt only started the inquiry in most directions, but could not exhaust it in any. [romanists and germanists.] the two great elements of western civilisation--roman tradition and teutonic tendencies--were more or less peacefully brought together in the books of savigny, eichhorn, and palgrave. but in process of time they diverged into a position of antagonism. their contrast not only came out as a result of more attention and developed study; it became acute, because in the keen competition of french and german scholarship, historians, consciously and unconsciously, took up the standpoint of national predilection, and followed their bias back into ancient times. aug. thierry, while protesting against the exaggerations of eighteenth-century systems, considered the development of european nations almost entirely as a national struggle culminating in conquest, but underlying most facts in the history of institutions. he began, for the sake of method, by tracing the conflict on english ground where everything resolved itself to his eye into open or hidden strife between norman and saxon[ ]. but william the bastard's invasion led him by a circuitous way to the real object of his interest--to the gradual rise of gallo-roman civilisation against the teutonic conquest in france: historical tendencies towards centralised monarchy and municipal bourgeoisie were connected by him with the present political condition of france as the abiding legacy of gallo-roman culture[ ]. men of great power and note, from raynouard[ ] and b. guérard[ ] down to fustel de coulanges[ ] in our own days, have followed the same track with more or less violence and exaggeration. they are all at one in their animosity towards teutonic influence in the past, all at one in lessening its effects, and in trying to collect the scattered traces of romanism in principle and application. the germans did not submit meekly to the onslaught, but went as far as the romanists on the other side. löbell[ ], waitz[ ], and roth[ ]--to speak only of the heads of the school--have held forth about the mighty part which the teutons have played in europe; they have enhanced the beneficial value of germanic principles, and tried to show that there is no reason for laying to their account certain dark facts in the history of europe. the germanist school had to fight its way not only against romanism, but against divers tenets of the romantic school as represented by savigny and eichhorn, of which romanists had availed themselves. the whole doctrine was to be reconsidered in the light of two fundamental assumptions. the foundations of social life were sought not in aristocracy, but in the common freedom of the majority of the people: the german middle class, the 'bürgers,' who form the strength of contemporary germany, looked to the past history of their race as vouching for their liberty; the destinies of that particular class became the test of social development. then again the disruptive tendency of german national character was stoutly denied, and all the historical instances of disruption were demonstrated to be quite independent of any leaning of the race. in the great fermentation of thought which led indirectly to the unification of germany, the best men in the country refused to believe that western europe had fallen to pieces into feudalism because teutonic development is doomed to strife and helplessness by deeply engrained traits of character[ ]. german scholarship found a most powerful ally in this period of its history in the literature of kindred england: german and english investigators stood side by side in the same ranks. kemble, k. maurer, freeman, stubbs, and gneist form the goodly array of the germanist school on english soil. [kemble.] kemble's position is, strictly speaking, an intermediate one: in some respects he is very near to eichhorn and grimm; although his chief work was published in , he was not acquainted with waitz's first books. but kemble is mostly in touch with those parts of eichhorn's theory which could be accepted by later germanists; other important tenets of the romantic school are left in the shade or rejected, and as a whole kemble's teaching is essentially germanistic. kemble's 'saxons in england' takes its peculiar shape and marks an epoch in english historical literature, mainly because it presents the first attempt to utilise the enormous material of saxon charters, in the collection of which kemble has done such invaluable work. with this copious and exact, but very onesided, material at his disposal, our author takes little notice of current tales about the invasion of great britain by angles and saxons. such tales may be interesting from a mythological or literary point of view, but the historian cannot accept them as evidence. at the same time one cannot but wish to try and get certain knowledge of an historical fact, which, as far as the history of england is concerned, appears as the first manifestation of the teutonic race in its stupendous greatness. luckily enough we have some means to judge of the invasion in the names of localities and groups of population. read in this light the history of conquest appears very gradual and ancient. it began long before the recorded settlements, and while britain was still under roman sway. the struggle with the celts was a comparatively easy one; the native population was by no means destroyed, but remained in large numbers in the lower orders of society. notwithstanding such remnants, the history of the anglo-saxon period is entirely teutonic in its aspect, and presents only one instance of the general process by which the provinces of the empire were modified by conquerors of teutonic race. the root of the whole social system is to be found in the mark, which is a division of the territory held jointly by a certain number of freemen for the purposes of cultivation, mutual help and defence. the community began as a kinship or tribe, but even when the original blood ties were lost sight of and modified by the influx of heterogeneous elements, the community remained self-sufficient and isolated. the whole fabric of society rested on property in land: as its political divisions were based on the possession of common lands, even so the rank of an individual depended entirely on his holding. the teutonic world had no idea of a citizen severed from the soil. the curious fact that the normal holding, the hide, was equal all over england ( - / acres) can be explained only by its origin; it came full-formed from germany and remained unchanged in spite of all diversities of geographical and economical conditions. the transformation of medieval society is, for kemble, intimately connected with the forms of ownership in land. the scanty population of ancient times had divided only a very small part of the country into separate holdings. the rest remained in the hands of the people to supply the wants of coming generations. the great turn towards feudalism was given by the fact that this reserve-fund lapsed into the hands of a few magnates: the mass of free people being deprived of its natural sphere of expansion was forced to seek its subsistence at the hands of private lords (loaf-givers). from the point of view of personal status the same process appears in the decrease of freedom among the people and in the increase of the so-called gesíð. according to teutonic principles a man is free only if he has land to feed upon, strength to work, and arms to defend himself. the landless man is unfree; and so is the gesíðcundman, the follower, however strong and wealthy he may be through his chief's grace. the contrast between the free ceorls tilling their own land and the band of military followers, who are always considered as personally dependent--this contrast is a marked one. from the first this military following had played an important part in german history. most raids and invasions had been its work, and sometimes whole tribes were attracted into its organisation, but during the first period of saxon history the free people were sufficiently strong to hold down the power of military chiefs within certain bounds. not so in later development. with the growth of population, of inequalities, of social competition, the relations of dependency are seen constantly gaining on the field of freedom. the spread of commendation leads not only to a change in the distribution of ranks, but to a dismemberment of political power, to all kinds of franchises and private encroachments on the state. i may be excused for marshalling all these well-known points before the public by the consideration that they must serve to show how intimately these views are connected with the general principles of a great school. the stress laid by kemble on property in land ought to be noticed especially: land gets to be the basis of all political and social condition. this is going much further than palgrave ever went; though not further than eichhorn. what actually severs kemble from the romantics is his estimate of the free element in the people. he does not try to picture a kind of political arcadia in saxon england, but there is no more talk about the rightless condition of the ceorls or the predominance of aristocracy. the teutonic race towers above everything. although the existence of celts after the conquests is admitted, neither celtic nor roman elements appear as exercising any influence in the course of history. everything takes place as if germanic communities had been living and growing on soil that had never before been appropriated. curiously enough the weakest point of kemble's doctrine seems to lie in its very centre--in his theory of social groups. one is often reminded of grimm by his account of the mark, and it was an achievement to call attention to such a community as distinct from the tribal group, but the political, legal, and economical description of the mark is very vague. as to the reasoning about gilds, tithings, and hundreds, it is based on a constant confusion of widely different subjects. generally speaking, it is not for a lawyer's acuteness and precision that one has to look in kemble's book: important distinctions very often get blurred in his exposition, and though constantly protesting against abstract theories and suppositions not based on fact, he indulges in them a great deal himself. still kemble's work was very remarkable: his extensive, if not very critical study of the charters opened his eyes to the first-rate importance of the law of real property in the course of medieval history: this was a great step in advance of palgrave, who had recognised law as the background of history, but whose attention had been directed almost exclusively to the formal side--to judicial institutions. and kemble actually succeeded in bringing forward some of the questions which were to remain for a long time the main points of debate among historians. [k. maurer.] the development of the school was evidently to proceed in the direction of greater accuracy and improved methods. great service has been done in this respect by konrad maurer[ ]. he is perhaps sometimes inclined to magnify his own independence and dissent from kemble's opinions, but he has undoubtedly contributed to strengthen and clear up some of kemble's views, and has gone further than his predecessor on important subjects. he accepts in the main kemble's doctrines as to the mark, the allotment of land, the opposition of folkland and book-land, and expounds them with greater fulness and better insight into the evidence. on the other hand he goes his own way as to the gesíðs (gefolgschaft), and the part played by large estates in the political process. maurer reduces the importance of the former and lays more stress on the latter than kemble[ ]. altogether the german scholar's investigations have been of great moment, and this not only for methodical reasons, but also because they lead to a complete emancipation of the school from eichhorn's influence. [freeman.] as to the conquests, germanist views have been formulated with great authority by freeman. a comparison of the course of development in romance countries with the history of england, and a careful study of that evidence of the chronicles which kemble disregarded, has led the historian of the norman conquest to the conclusion, that the teutonic invaders actually rooted out most of the romanised celtic population of english britain, and reduced it to utter insignificance in those western counties where they did not destroy it. it is the only inference that can be drawn from the temporary disappearance of christianity, from the all but complete absence of celtic and latin words in the english tongue, from the immunity of english legal and social life from roman influence. the teutonic bias which was given to the history of the island by the conquest of angles and saxons has not been altered by the conquest of the normans. the foreign colouring imparted to the language is no testimony of any radical change in the internal structure of the people: it remained on the surface, and the history of the island remained english, that is, teutonic. even feudalism, which appears in its full shape after william the bastard's invasion, had been prepared in its component parts by the saxon period. in working out particulars freeman had to reckon largely with kemble's work and to strike the balance between the conflicting and onesided theories of thierry and palgrave. questions of legal and social research concern him only so far as they illustrate the problem of the struggle and fusion of national civilisations. his material is chiefly drawn from chronicles, and the history of external facts of war, government, and legislation comes naturally to the fore. but all the numberless details tend towards one end: they illustrate the teutonic aspect of english culture, and assign it a definite place in the historical system of europe. [stubbs.] stubbs' 'constitutional history,' embracing as it does the whole of the middle ages, is not designed to trace out some one idea for the sake of its being new or to take up questions which had remained unheeded by earlier scholars. solid learning, critical caution and accuracy are the great requirements of such an undertaking, and every one who has had anything to do with the bishop of oxford's publications knows to what extent his work is distinguished by these qualities. if one may speak of a main idea in such a book as the constitutional history of a people, stubbs' main idea seems to be, that the english constitution is the result of administrative concentration in the age of the normans of local self-govermment formed in the age of the saxons. this conclusion is foreshadowed in palgrave's work, but what appears there as a mere hypothesis and in confusion with all kinds of heterogeneous elements, comes out in the later work with the overwhelming force of careful and impartial induction. stubbs' point of view is a germanist one. the book begins with an estimate of teutonic influence in the different countries of europe, and england is taken in one sense as the most perfect manifestation of the teutonic historical tendency. the influx of frenchmen and french ideas under william the conqueror and after him had important effects in rousing national energy, contributing to national unification, settling the forms of administration and justice, but at bottom there remained the teutonic character of the nation. the 'constitutional history' approaches the question of the village community, but its object is strictly limited to the bearing of the problem on general history and to the testimony of direct authority. it starts from the community in land as described by cæsar and tacitus, and notices that saxon times present only a few scattered references to communal ownership. most of the arable land was held separately, but the woods, meadow, and pasture still remained in the ownership of village groups. the township with its rights and duties as to police, justice, and husbandry was modified but not destroyed by feudalism. the change from personal relations to territorial, and from the freedom of the masses to their dependency, is already very noticeable in the saxon period. the norman epoch completed the process by substituting proprietary rights in the place of personal subordination and political subjection. still even after conquest and legal theory had been over the ground, the compact self-government of the township is easily discernible under the crust of the manorial system, and the condition of medieval villains presents many traces of original freedom. [gneist.] gneist's work is somewhat different in colouring and closely connected with a definite political theory. tocqueville in france has done most to draw attention to the vital importance of local self-government in the development of liberal institutions; and stubbs' history goes far to demonstrate tocqueville's general view by a masterly statement as to the origins of english institutions. in gneist's hands the doctrine of decentralisation assumes a particular shape by the fact that it is constructed on a social foundation; the german thinker has been trying all along to show that the english influence is not one of self-government only, but of aristocratical self-government. the part played by the gentry in local and central affairs is the great point of historical interest in gneist's eyes. even in the saxon period he lays stress chiefly on the early rise of great property, and the great importance of 'hlafords' in social organisation. he pays no attention to the village community, and chiefly cares for the landlord. but still even gneist admits the original personal freedom of the great mass of the people, and his analysis of the english condition is based on the assumption, that it represents one variation of teutonic development: this gives gneist a place among the germanists, although his views on particular subjects differ from those of other scholars of the same school.[ ] [the mark system.] its chief representatives have acquired such a celebrity that it is hardly necessary to insist again, that excellent work has been done by them for the study of the past. but the direction of their work has been rather one-sided; it was undertaken either from the standpoint of political institutions or from that of general culture and external growth; the facts of agriculture, of the evolution of classes, of legal organisation were touched upon only as subsidiary to the main objects of general history. and yet, even from the middle of the century, the attention of europe begins to turn towards those very facts. the 'masses' come up with their claims behind the 'classes,' the social question emerges in theory and in practice, in reform and revolution; liberals and conservatives have to reckon with the fact that the great majority of the people are more excited, and more likely to be moved by the problems of work and wages than by problems of political influence. the everlasting, ever-human struggle for power gets to be considered chiefly in the light of the distribution of wealth; the distribution of society into classes and conditions appears as the connecting link between the economical process and the political process. this great change in the aspect of modern life could not but react powerfully on the aspect of historical literature. g.f. von maurer and hanssen stand out as the main initiators of the new movement in our studies. the many volumes devoted by g.f. maurer[ ] to the village and the town of germany are planned on a basis entirely different from that of his predecessors. instead of proceeding from the whole to the parts, and of using social facts merely as a background to political history, he concentrates everything round the analysis of the mark, as the elementary organisation for purposes of husbandry and ownership. the mark is thus taken up not in the vague sense and manner in which it was treated by kemble and his followers; it is described and explained on the strength of copious, though not very well sifted, evidence. on the other hand, hanssen's masterly essays[ ] on agrarian questions, and especially on the field-systems, gave an example of the way in which work was to be done as to facts of husbandry proper. [nasse.] nasse's pamphlet on the village community[ ] may be considered as the first application of the new methods and new results to english history. the importance of his little volume cannot easily be overrated: all subsequent work has had to start from its conclusions. nasse's picture of the ancient english agricultural system, though drawn from scanty sources, is a very definite one. most of the land is enclosed only during the latter part of the year, and during the rest of the year remains in the hands of the community. temporary enclosures rise upon the ploughed field while the crop is growing; their object, however, is not to divide the land between neighbours but to protect the crop against pasturing animals; the strips of the several members of the township lie intermixed, and their cultivation is not left to the views and interests of the owners, but settled by the community according to a general plan. the meadows are also divided into strips, but these change hands in a certain rotation determined by lot or otherwise. the pasture ground remains in the possession of the whole community. the notion of private property, therefore, can be applied in this system only to the houses and closes immediately adjoining them. then the feudal epoch divides the country into manors, a form which originated at the end of the saxon period and spread everywhere in norman times. the soil of the manor consists of demesne lands and tributary lands. these two classes of lands do not quite correspond to the distinction between land cultivated by the lord himself and soil held of him by dependants; there may be leaseholders on the demesne, but there the lord is always free to change the mode of cultivation and occupation, while he has no right to alter the arrangements on the tributary portion. this last is divided between free socmen holding on certain conditions, villains and cottagers. the villains occupy equal holdings; their legal condition is a very low one, although they are clearly distinguished from slaves, and belong more to the soil than to the lord. the cottagers have homesteads and crofts, but no holdings in the common fields; the whole group presents the material from which, in process of time, the agricultural labourers have been developed. the common system of husbandry manifests itself in many ways: the small holders club together for ploughing; four virgates or yardlands have to co-operate in order to start an eight-oxen plough. the services are often laid upon the whole village and not on separate householders; on the other hand the village, as a whole, enters into agreement with the lord about leases or commutation of services for money. each holding is formed of strips which lie intermixed with the component parts of other holdings in different fields, and this fact is intimately connected with the principle of joint ownership. the whole system begins to break up in the thirteenth century, much earlier than in france or germany. as soon as services get commuted for money rents, it becomes impossible to retain the labouring people in serfdom. hired labourers and farmers take the place of villains, and the villain's holding is turned into a copyhold and protected by law. although the passage to modern forms begins thus early, traces of the original communalism may be found everywhere, even in the eighteenth century. [maine.] nasse's pamphlet is based on a careful study of authorities, and despite its shortness must be treated as a work of scientific research. but if all subsequent workers have to reckon with it in settling particular questions, general conceptions have been more widely influenced by sir henry maine's lectures, which did not aim at research, and had in view the broad aspects of the subject. their peculiar method is well known to be that of comparing facts from very different environments--from the teutonic, the celtic, the hindu world; maine tries to sketch a general process where other people only see particular connexions and special reasons. the chapters which fall within the line of our inquiry are based chiefly on a comparison between western europe and india. the agrarian organisation of many parts of india presents at this very day, in full work and in all stages of growth and decay, the village community of which some traces are still scattered in the records of europe. there and here the process is in the main the same, the passage from collective ownership to individualism is influenced by the same great forces, notwithstanding all the differences of time and place. the original form of agrarian arrangement is due to the settlement of a group of free men, which surrenders to its individual members the use of arable land, meadows, pasture and wood, but retains the ownership and the power to control and modify the rights of using the common land. there can be no doubt that the legal theory, which sees in the modern rights of commoners mere encroachments upon the lord, carries feudal notions back into too early a period. the real question as conceived by maine is this--by what means was the free village community turned into the manor of the lord? the petty struggles between townships must have led to the subjugation of some groups by others; in each particular village the headman had the means to use his authority in order to improve his material position; and when a family contrived to retain an office in the hands of its members this at once gave matters an aristocratical turn. in western europe external causes had to account for a great deal in the gradual rise of territorial lordship. when the barbarian invaders came into contact with roman civilisation and took possession of the provincial soil, they found private ownership and great property in full development, and naturally fell under the influence of these accomplished facts; their village community was broken up and transformed gradually into the manorial system[ ]. maine traces economic history from an originally free community; nasse takes the existence of such a community for granted. the statements of one are too general, however, and sometimes too hypothetical, the other has in view husbandry proper rather than the legal development of social classes. maurer's tenets, to which both go back, present a very coherent system in which all parts hold well together; but each part taken separately is not very well grounded on fact. the one-sided preference given to one element does not allow other important elements to appear; the wish to find in the authorities suitable arguments for a favourite thesis leads to a confusion of materials derived from different epochs. these defects naturally called for protest and rectification; but the reaction against maurer's teaching has gone so far and comes from such different quarters, that one has to look for its explanation beyond the range of historical research. [reactionary movement.] late years have witnessed everywhere in europe a movement of thought which would have been called reactionary some twenty years ago[ ]. some people are becoming very sceptical as to principles which were held sacred by preceding generations; at the same time elements likely to be slighted formerly are coming to the front in great strength nowadays. there have been liberals and conservatives at all times, but the direction of the european mind, saving the reaction against the french revolution and napoleon, has been steadily favourable to the liberal tendency. for two centuries the greatest thinkers and the course of general opinion have been striving for liberty in different ways, for the emancipation of individuals, and the self-government of communities, and the rights of masses. this liberal creed has been, on the whole, an eminently idealist one, assuming the easy perfectibility of human nature, the sound common sense of the many, the regulating influence of consciousness on instinct, the immense value of high political aspirations for the regeneration of mankind. in every single attempt at realising its high-flying hopes the brutal side of human nature has made itself felt very effectually, and has become all the more conspicuous just by reason of the ironical contrast between aims and means. but the movement as a whole was certainly an idealist one, not only in the eighteenth but even in the nineteenth century, and the necessary repressive tendency appeared in close alliance with officialism, with unthinking tradition, and with the egotism of classes and individuals. many events have contributed of late years to raise a current of independent thought which has gone far in criticising and stemming back liberal doctrines, if not in suppressing them. the brilliant achievements of historical monarchy in germany, the ridiculous misery to which france has been reduced by conceited and impotent politicians, the excesses of terrorist nihilism in russia, the growing sense of a coming struggle on questions of radical reform--all these facts have worked together to generate a feeling which is far from being propitious to liberal doctrines. socialism itself has been contributing to it directly by laying an emphatic stress on the conditions of material existence, and treating political life merely as subordinate to economic aims. in england the repressive tendency has been felt less than on the continent, but even here some of the foremost men in the country are beginning, in consequence of social well-known events, to ask themselves: whither are we drifting? the book which best illustrates the new direction of thought is probably taine's 'origines de la france contemporaine.' it is highly characteristic, both in its literary connexion with the profound and melancholy liberalism of tocqueville, and in its almost savage onslaught on revolutionary legend and doctrine. in the field of historical research the fermentation of political thought of which i have been speaking has been powerfully seconded by a growing distrust among scholars for preconceived theories, and by the wish to reconsider solutions which had been too easily taken for granted. the combined action of these forces has been curiously experienced in the particular subject of our study. the germanist school had held very high the principle of individual liberty, had tried to connect it with the teutonic element in history, had explained its working in the society described by tacitus, and had regretfully followed its decay in later times. for the representatives of the new school this 'original teutonic freedom' has entirely lost its significance, and they regard the process of social development as starting with the domination of the few and the serfdom of the many. the votaries of the free village community have been studying with interest epochs and ethnographical variations unacquainted with the economic individualism of modern europe, they have been attentive in tracing out even the secondary details of the agrarian associations which have directed the husbandry of so many centuries, but the new school subordinates communal practice to private property and connects it with serfdom. we may already notice the new tendency in inama-sternegg's wirthschaftsgeschichte[ ]: he enters the lists against maurer, denies that the mark ever had anything to do with political work, reduces its influence on husbandry, and enhances that of great property. the most remarkable of french medievalists--fustel de coulanges--has been fighting all along against the teutonic village community, and for an early development of private property in connexion with roman influence. english scholarship has to reckon with similar views in seebohm's well-known work. [seebohm.] let us recall to mind the chief points of his theory. the village community of medieval england is founded on the equality of the holdings in the open fields of the village. the normal holding of a peasant family is not only equal in each separate village, but it is substantially the same all over england. variations there are, but in most cases by far it consists of the virgate of thirty acres, which makes the fourth part of the hide of a hundred and twenty acres, because the peasant holder owns only the fourth part of the ploughteam of eight oxen corresponding to the hide. the holders of virgates or yardlands are not the only people in the village; their neighbours may have more or less land, but there are not many classes as a rule, all the people in the same class are equalised, and the virgate remains the chief manifestation of the system. it is plain that such equality could be maintained only on the principle that each plot was a unit which was neither to be divided nor thrown together with other plots. why did such a system spread all over europe? it could not develop out of a free village community, as has been commonly supposed, because the germanic law regulating free land does not prevent its being divided; indeed, where this law applies, holdings get broken up into irregular plots. if the system does not form itself out of germanic elements, it must come from roman influence; one has only the choice between the two as to facts which prevail everywhere in western europe. indeed, the roman villa presents all the chief features of the medieval manor. the lord's demesne acted as a centre, round which _coloni_ clustered--cultivators who did not divide their tenancies because they did not own them. the roman system was the more readily taken up by the germans, as their own husbandry, described by tacitus, had kindred elements to show--the condition of their slaves, for instance, was very like that of roman coloni. it must be added, that we may trace in roman authorities not only the organisation of the holdings, but such features as the three-field partition of the arable and the intermixed position of the strips belonging to a single holding. the importance of these observations taken as a whole becomes especially apparent, if we compare medieval england with wales or ireland, with countries settled by the celts on the principle of the tribal community: no fixed holdings there; it is not the population that has to conform itself to fixed divisions of land, but the divisions of land have to change according to the movement of the population. such usage was prevalent in germany itself for a time, and would have been prevalent there as long as in celtic countries, if the germans had not come under roman influence. and so the continuous development of society in england starts from the position of roman provincial soil. the saxon invasion did not destroy what it found in the island. roman villas and their labourers passed from one lord to the other--that is all. the ceorls of saxon times are the direct descendants of roman slaves and coloni, some of them personally free, but all in agrarian subjection. indeed, social development is a movement from serfdom to freedom, and the village community of its early stages is connected not with freedom, but with serfdom. seebohm's results have a marked resemblance to some of the views held by the eighteenth-century lawyers, and also to those held by palgrave and by coote, but his theory is nevertheless original, both in the connexion of the parts with the whole, and in its arguments: he knows how to place in a new light evidence which has been known and discussed for a long time, and for this reason his work will be suggestive reading even to those who do not agree with the results. the chief strength of his work lies in the chapters devoted to husbandry; but if one accepts his conclusions, what is to be done with the social part of the question? both sides, the economic and the social, are indissolubly allied, and at the same time the extreme consequences drawn from them give the lie direct to everything that has hitherto been taken for granted and accepted as proved as to this period. can it really be true that the great bulk of free men was originally in territorial subjection, or rather that there never was such a thing as a great number of free men of german blood, and that the german conquest introduced only a cluster of privileged people which merged into the habits and rights of roman possessors? if this be not true and english history testifies on every point to a deeper influence exercised by the german conquerors, does not the collapse of the social conclusion call in question the economical premisses? does not a logical development of seebohm's views lead to conclusions that we cannot accept? these are all perplexing questions, but one thing is certain; this last review of the subject has been powerful enough to necessitate a reconsideration of all its chief points. [results attained by conflict between successive theories.] happily, this does not mean that former work has been lost. i have not been trying the patience of my readers by a repetition of well-known views without some cogent reasons. the subject is far too wide and important to admit of a brilliantly unexpected solution by one mind or even one generation of workers. a superficial observer may be so much struck by the variations and contradictions, that he will fail to realise the intimate dependence of every new investigator on his predecessors. 'the subjective side of history,' as the germans would say, has been noticed before now and the taunt has been administered with great force: 'was ihr den geist der zeiten heisst, das ist im grund der herren eigener geist, in dem die zeiten sich bespiegeln.' those who do not care to fall a prey to faust's scepticism, will easily perceive that individual peculiarities and political or national pretensions will not account for the whole of the process. their action is powerful indeed: the wish to put one's own stamp on a theory and the reaction of present life on the past are mighty incitements to work. but new schools do not rise in order to pull down everything that has been raised by former schools, new theories always absorb old notions both in treatment of details and in the construction of the whole. we may try, as conclusion of our review of historical literature, to notice the permanent gains of consecutive generations in the forward movement of our studies. the progress will strike us, not only if we compare the state of learning at both ends of the development, but even if we take up the links of the chain one by one. the greatest scholars of the time before the french revolution failed in two important respects: they were not sufficiently aware of the differences between epochs; they were too ready with explanations drawn from conscious plans and arrangements. the shock of revolution and reaction taught people to look deeper for the laws of the social and political organism. the material for study was not exactly enlarged, but instead of being thrown together without discrimination, it was sifted and tried. preliminary criticism came in as an improvement in method and led at once to important results. speaking broadly, the field of conscious change was narrowed, the field of organic development and unconscious tradition widened. on this basis savigny's school demonstrated the influence of roman civilisation in the middle ages, started the inquiry as to national characteristics, and shifted the attention of historians from the play of events on the surface to the great moral and intellectual currents which direct the stream. palgrave's book bears the mark of all these ideas, and it may be noticed especially that his chief effort was to give a proper background to english history by throwing light on the abiding institutions of the law. none of these achievements was lost by the next generation of workers. but it had to start from a new basis, and had a good deal to add and to correct. modern life was busy with two problems after the collapse of reaction had given way to new aspirations: europe was trying to strike a due balance between order and liberty in the constitutional system; nationalities that had been rent by casual and artificial influences were struggling for independence and unity. the germanist school arose to show the extent to which modern constitutional ideas were connected with medieval facts, and the share that the german element has had in the development of institutions and classes. as to material, kemble opened a new field by the publication of the saxon charters, and the gain was felt at once in the turn given towards the investigation of private law, which took the place of palgrave's vague leaning towards legal history. the methods of careful and cautious inquiry as to particular facts took shape in the hands of k. maurer and stubbs, and the school really succeeded, it seems to me, in establishing the characteristically germanic general aspect of english history, a result which does not exclude roman influence, but has to be reckoned with in all attempts to estimate definitely its bearing and strength. the rise of the social question about the middle of our century had, as its necessary consequence, to impress upon the mind of intelligent people the vast importance of social conditions, of those primary conditions of husbandry, distribution of wealth and distribution of classes, which ever, as it were, loom up behind the pageant of political institutions and parties. nasse follows up the thread of investigation from the study of private law towards the study of economic conditions. g.f. v. maurer and maine enlarge it in scope, material, and means by their comparative inquiry, taking into view, first, all varieties of the teutonic race, and then the development of other ethnographical branches. the village community comes out of the inquiry as the constitutive cell of society during an age of the world, quite as characteristic of medieval structure, as the town community or 'civitas' was of ancient polity. the consciousness that political and scientific construction has been rather hasty in its work, that it has often been based upon doctrines instead of building on the firm foundation of facts--the widely spread perception of these defects has been of late inciting statesmen and thinkers to put to use some of those very elements which were formerly ignored or rejected. the manorial school--if i may be allowed to use this expression--has brought forward the influence of great landed estates against the democratical conception of the village community. the work spent upon this last phenomenon is by no means undone; on the contrary, it was received in most of its parts. but new material was found in the manorial documents of the later middle ages, the method of investigation 'from the known to the unknown' was used both openly and unconsciously, comparative inquiry was handled for more definite, even if more limited purposes. great results cannot be contested: to name one--the organising force of aristocratic property has been acknowledged and has come to its rights. but the new impetus given to research has caused its originators to overleap themselves, as it were. they have occupied so exclusively the point of view whence the manor of the later middle ages is visible that they have disregarded the evidence which comes from other quarters instead of finding an explanation which will satisfy all the facts. the investigation 'from the known to the unknown' has its definite danger, against which one has to be constantly on one's guard: its obvious danger is to destroy perspective and ignore development by carrying into the 'unknown' of early times that which is known of later conditions. altogether the attempt to overthrow some of the established results of investigation as to race and classes does not seem to be a happy one. and so, although great work has been done in our field of study, it cannot be said that it has been brought to a close--'bis an die sterne weit.' many things remain to be done, and some problems are especially pressing. the legal and the economical side of the inquiry must be worked up to the same level; manorial documents must be examined systematically, if not exhaustively, and their material made to fit with the evidence established from other sources of information; the whole field has to be gone over with an eye for proof and not for doctrine. a review of the work already done, and of the names of scholars engaged in it, is certainly an incitement to modesty for every new reaper in the field, but it is also a source of hope. it shows that schools and leading scholars displace one another more under the influence of general currents of thought than of individual talent. the ferment towards the formation of groups comes from the outside, from the modern life which surrounds research, forms the scholar, suggests solutions. moreover, theoretical development has a continuity of its own; all the strength of this manifold life cannot break or turn back its course, but is reduced to drive it forward in ever new bends and curves. the present time is especially propitious to our study: one feels, as it were, that it is ripening to far-reaching conclusions. so much has been done already for this field of enquiry in the different countries of europe, that the hope to see in our age a general treatment of the social origins of western europe will not seem an extravagant one. and such a treatment must form as it were the corner-stone of any attempt to trace the law of development of human society. it is in this consciousness of being borne by a mighty general current, that the single scholar may gather hope that may buoy him against the insignificance of his forces and the drudgery of his work. first essay. the peasantry of the feudal age. chapter i. the legal aspect of villainage. general conceptions. [medieval serfdom.] it has become a commonplace to oppose medieval serfdom to ancient slavery, one implying dependence on the lord of the soil and attachment to the glebe, the other being based on complete subjection to an owner. there is no doubt that great landmarks in the course of social development are set by the three modes hitherto employed of organising human labour: using the working man ( ) as a chattel at will, ( ) as a subordinate whose duties are fixed by custom, ( ) as a free agent bound by contract. these landmarks probably indicate molecular changes in the structure of society scarcely less important than those political and intellectual revolutions which are usually taken as the turning-points of ancient, medieval, and modern history. and still we must not forget, in drawing such definitions, that we reach them only by looking at things from such a height that all lesser inequalities and accidental features of the soil are no longer sensible to the eyesight. in finding one's way over the land one must needs go over these very inequalities and take into account these very features. if, from a general survey of medieval servitude, we turn to the actual condition of the english peasantry, say in the thirteenth century, the first fact we have to meet will stand in very marked contrast to our general proposition. [importance of legal treatment.] the majority of the peasants are villains, and the legal conception of villainage has its roots not in the connexion of the villain with the soil, but in his personal dependence on the lord. if this is a fact, it is a most important one. it would be reckless to treat it as a product of mere legal pedantry[ ]. the great work achieved by the english lawyers of the twelfth and thirteenth centuries was prompted by a spirit which had nothing to do with pedantry. they were fashioning state and society, proudly conscious of high aims and power, enlightened by the scholastic training of their day, but sufficiently strong to use it for their own purposes; sound enough not to indulge in mere abstractions, and firm enough not to surrender to mere technicalities[ ]. in the treatment of questions of status and tenure by the lawyers of henry ii, henry iii, and edward i, we must recognise a mighty influence which was brought to bear on the actual condition of things, and our records show us on every page that this treatment was by no means a matter of mere theory. indeed one of the best means that we have for estimating the social process of those times is afforded by the formation and the break up of legal notions in their cross influences with surrounding political and economic facts. [definition and terminology of villainage at common law.] as to the general aspect of villainage in the legal theory of english feudalism there can be no doubt. the 'dialogus de scaccario' gives it in a few words: the lords are owners not only of the chattels but of the bodies of their _ascripticii_, they may transfer them wherever they please, 'and sell or otherwise alienate them if they like[ ].' glanville and bracton, fleta and britton[ ] follow in substance the same doctrine, although they use different terms. they appropriate the roman view that there is no difference of quality between serfs and serfs: all are in the same abject state. legal theory keeps a very firm grasp of the distinction between status and tenure, between a villain and a free man holding in villainage, but it does not admit of any distinction of status among serfs: _servus_, _villanus_, and _nativus_ are equivalent terms as to personal condition, although this last is primarily meant to indicate something else besides condition, namely, the fact that a person has come to it by birth[ ]. the close connexion between the terms is well illustrated by the early use of _nativa_, nieve, 'as a feminine to _villanus_.' [treatment of villainage in legal practice.] these notions are by no means abstractions bereft of practical import. quite in keeping with them, manorial lords could remove peasants from their holdings at their will and pleasure. an appeal to the courts was of no avail: the lord in reply had only to oppose his right over the plaintiff's person, and to refuse to go into the subject-matter of the case[ ]. nor could the villain have any help as to the amount and the nature of his services[ ]; the king's courts will not examine any complaint in this respect, and may sometimes go so far as to explain that it is no business of theirs to interfere between the lord and his man[ ]. in fact any attempt on the part of the dependant to assert civil rights as to his master will be met and defeated by the 'exceptio villenagii[ ].' the state refuses to regulate the position of this class on the land, and therefore there can be no question about any legal 'ascription' to the soil. even as to his person, the villain was liable to be punished and put into prison by the lord, if the punishment inflicted did not amount to loss of life or injury to his body[ ]. the extant plea rolls and other judicial records are full of allusions to all these rights of the lord and disabilities of the villain, and it must be taken into account that only an infinitely small part of the actual cases can have left any trace in such records, as it was almost hopeless to bring them to the notice of the royal courts[ ]. [identification with roman slavery.] it is not strange that in view of such disabilities bracton thought himself entitled to assume equality of condition between the english villain and the roman slave, and to use the terms _servus_, _villanus_, and _nativus_ indiscriminately. the characteristics of slavery are copied by him from azo's commentary on the institutes, as material for a description of the english bondmen, and he distinguishes them carefully even from the roman _adscripticii_ or _coloni_ of base condition. the villains are protected in some measure against their lord in criminal law; they cannot be slain or maimed at pleasure; but such protection is also afforded to slaves in the later law of the empire, and in fact it is based in bracton on the text of the institutes given by azo, which in its turn is simply a summary of enactments made by hadrian and antonine. the minor law books of the thirteenth century follow bracton in this identification of villainage with slavery. although this identification could not but exercise a decisive influence on the theory of the subject, it must be borne in mind that it did not originate in a wanton attempt to bring together in the books dissimilar facts from dissimilar ages. on the contrary, it came into the books because practice had paved the way for it. bracton was enabled to state it because he did not see much difference between the definitions of azo and the principles of common law, as they had been established by his masters martin of pateshull and william raleigh. he was wrong, as will be shown by-and-by, but certainly he had facts to lean upon, and his theory cannot be dismissed on the ground of his having simply copied it from a foreigner's treatise. [villains in gross and villains regardant.] most modern writers on the subject have laid stress upon a difference between _villains regardant_ and _villains in gross_, said to be found in the law books[ ]. it has been taken to denote two degrees of servitude--the predial dependence of a _colonus_ and the personal dependence of a true slave. the villain _regardant_ was (it is said) a villain who laboured under disabilities in relation to his lord only, the villain in gross possessed none of the qualities of a freeman. one sub-division would illustrate the debasement of freemen who had lost their own land, while the other would present the survival of ancient slavery. in opposition to these notions i cannot help thinking that hallam was quite right in saying: 'in the condition of these (villains regardant and villains in gross), whatever has been said by some writers, i can find no manner of difference; the distinction was merely technical, and affected only the mode of pleading. the term _in gross_ is appropriated in our legal language to property held absolutely and without reference to any other. thus it is applied to rights of advowson or of common, when possessed simply, and not as incident to any particular lands. and there can be no doubt that it was used in the same sense for the possession of a villein.' (middle ages, iii. ; cf. note xiv.) hallam's statement did not carry conviction with it however, and as the question is of considerable importance in itself and its discussion will incidentally help to bring out one of the chief points about villainage, i may be allowed to go into it at some length. [littleton's view.] matters would be greatly simplified if the distinction could really be traced through the authorities. in point of fact it turns out to be a late one. we may start from coke in tracing back its history. his commentary upon littleton certainly has a passage which shows that he came across opinions implying a difference of status between villains regardant and villains in gross. he speaks of the right of the villain to pursue every kind of action against every person except his lord, and adds: 'there is no diversity herein, whether he be a villain regardant or in gross, although some have said to the contrary[ ]' (co. lit. b). littleton himself treats of the terms in several sections, and it is clear that he never takes them to indicate status or define variation of condition. as has been pointed out by hallam, he uses them only in connexion with a diversity in title, and a consequent diversity in the mode of pleading. if the lord has a deed or a recorded confession to prove a man's bondage, he may implead him as his villain in gross; if the lord has to rely upon prescription, he has to point out the manor to which the party and his ancestors have been regardant, have belonged, time out of mind[ ]. as it is a question of title and not of condition, littleton currently uses the mere 'villain' without any qualification, whereas such a qualification could not be dispensed with, if there had been really two different classes of villains. last but not least, any thought of a diversity of condition is precluded by the fact, that littleton assumes the transfer from one sub-division to the other to depend entirely on the free will of the lord (sections , , , ). but still, although even littleton does not countenance the classification i am now analysing, it seems to me that some of his remarks may have given origin to the prevalent misconception on the subject. [the 'villain regardant' of the year books.] let us take up the year books, which, even in their present state, afford such an inestimable source of information for the history of legal conceptions in the fourteenth and fifteenth centuries[ ]. an examination of the reports in the age of the edwards will show at once that the terms _regardant_ and _in gross_ are used, or rather come into use, in the fourteenth century as definitions of the mode of pleading in particular cases. they are suggested by difference in title, but they do not coincide with it, and any attempt to make them coincide must certainly lead to misapprehension. i mean this--the term 'villain regardant' applied to a man does not imply that the person in question has any status superior to that of the 'villain in gross,' and it does not imply that the lord has acquired a title to him by some particular mode of acquisition, e.g. by prescription as contrasted with grant or confession; it simply implies that for the purpose of the matter then in hand, for the purpose of the case that is then being argued, the lord is asserting and hoping to prove a title to the villain by relying on a title to a manor with which the villain is or has been connected--title it must be remembered is one thing, proof of title is another. as the contrast is based on pleading and not on title, one and the same person may be taken and described in one case as a villain regardant to a manor, and in another as a villain in gross. and now for the proof. the expression 'regardant' never occurs in the pleadings at all, but 'regardant to a manor' is used often. from edward iii's time it is used quite as a matter of course in the formula of the 'exceptio' or special plea of villainage[ ]. that is, if the defendant pleaded in bar of an action that the plaintiff was his bondman he generally said, i am not bound to answer a, because he is my villain and i am seised of him as of my villain as regardant to my manor of c. of course there are other cases when the term is employed, but the plea in bar is by far the most common one and may stand for a test. this manner of pleading is only coming gradually into use in the fourteenth century, and we actually see how it is taking shape and spreading. as a rule the year books of edward i's time have not got it. the defendant puts in his plea unqualified. 'he ought not to be answered because he is our villain' (y.b. / edward i, p. , ed. horwood). there is a case in when a preliminary skirmish between the counsel on either side took place as to the sufficiency of the defendant's plea in bar, the plaintiff contending that it was not precise enough. here, if any where, we should expect the term '_regardant_,' but it is not forthcoming[ ]. what is more, and what ought to have prevented any mistake, the official records of trials on the plea rolls up to edward ii always use the plain assertion, 'villanus ... et tenet in villenagio[ ].' the practice of naming the manor to which a villain belonged begins however to come in during the reign of edward ii, and the terminology is by no means settled at the outset; expressions are often used as equivalent to 'regardant' which could hardly have misled later antiquaries as to the meaning of the qualification[ ]. in a case of , for instance, we have 'within the manor' where we should expect to find 'regardant to the manor[ ].' this would be very nearly equivalent to the latin formula adopted by the plea rolls, which is simply _ut de manerio_[ ]. every now and then cases occur which gradually settle the terminology, because the weight of legal argumentation in them is made to turn on the fact that a particular person was connected with a particular manor and not with another. a case from is well in point. b.p. the defendant excepts against the plaintiff t.a. on the ground of villainage (_qil est nostre vileyn_, and nothing else). the plaintiff replies that he was enfranchised by being suffered to plead in an assize of mort d'ancestor against b.p.'s grandmother. by this the defendant's counsel is driven to maintain that his client's right against t.a. descended not from his grandmother but from his grandfather, who was seised of the manor of h. to which t.a. belonged as a villain[ ]. the connexion with the manor is adduced to show from what quarter the right to the villain had descended, and, of course, implies nothing as to any peculiarity of this villain's status, or as to the kind of title, the mode of acquiring rights, upon which the lord relies--it was ground common to both parties that if the lord had any rights at all he acquired them by inheritance. [prior of the hospitalers _v._ thomas barentyn and ralph crips.] another case seems even more interesting. it dates from , that is from a time when the usual terminology had already become fixed. it arose under that celebrated statute of labourers which played such a prominent part in the social history of the fourteenth century. one of the difficulties in working the statute came from the fact that it had to recognise two different sets of relations between the employer and the workman. the statute dealt with the contract between master and servant, but it did not do away with the dependence of the villain on the lord, and in case of conflict it gave precedence to this latter claim; a lord had the right to withdraw his villain from a stranger's service. such cross influences could not but occasion a great deal of confusion, and our case gives a good instance of it. thomas barentyn has reclaimed ralph crips from the service of the prior of the hospitalers, and the employer sues in consequence both his former servant and barentyn. this last answers, that the servant in question is his villain regardant to the manor of c. the plaintiff's counsel maintains that he could not have been regardant to the manor, as he was going about at large at his free will and as a free man; for this reason a. the former owner of the manor was never seised of him, and not being seised could not transfer the seisin to the present owner, although he transferred the manor. for the defendant it is pleaded, that going about freely is no enfranchisement, that by the gift of the manor every right connected with the manor was also conferred and that consequently the new lord could at any moment lay hands on his man, as the former lord could have done in his time. ultimately the plaintiff offers to join issue on the question, whether the servant had been a villain regardant to the manor of c. or not. the defendant asserts, rather late in the day, that even if the person in question was not a villain regardant to the manor of c. the mere fact of his being a villain in gross would entitle his lord to call him away. this attempt to start on a new line is not allowed by the court because the claim had originally been traversed on the ground of the connexion with the manor[ ]. the peculiarity of the case is that a third person has an interest to prove that the man claimed as villain had been as a free man. usually there were but two parties in the contest about status; the lord pulling one way and the person claimed pulling the other way, but, through the influence of the statute of labourers, in our case lord and labourer were at one against a third party, the labourer's employer. the acknowledgment of villainage by the servant did not settle the question, because, though binding for the future, it was not sufficient to show that villainage had existed in the past, that is at the time when the contract of hire and service was broken through the interference of the lord. everything depended on the settlement of one question--was the lord seised at the time, or not? both parties agree that the lord was not actually seised of the person, both agree that he was seised of the manor, and both suppose that if the person had as a matter of fact been attached to the manor it would have amounted to a seisin of the person. and so the contention is shifted to this point: can a man be claimed through the medium of a manor, if he has not been actually living, working and serving in it? the court assumes the possibility, and so the parties appeal to the country to decide whether in point of fact ralph crips the shepherd had been in legal if not in actual connexion with the manor, i.e. could be traced to it personally or through his relatives. [results as to 'villain regardant' and 'villain in gross.'] the case is interesting in many ways. it shows that the same man could be according to the point of view considered both as a villain in regard to a manor, and as a villain in gross. the relative character of the classification is thus illustrated as well as its importance for practical purposes. the transmission of a manor is taken to include the persons engaged in the cultivation of its soil, and even those whose ancestors have been engaged in such cultivation, and who have no special plea for severing the connexion. as to the outcome of the whole inquiry, we may, it seems to me, safely establish the following points: . the terms 'regardant' and 'in gross' have nothing to do with a legal distinction of status. . they come up in connexion with the modes of proof and pleading during the fourteenth century. . they may apply to the same person from different points of view. . 'villain in gross' means a villain without further qualification; 'villain regardant to a manor' means villain by reference to a manor. . the connexion with a manor, though only a matter of fact and not binding the lord in any way, might yet be legally serviceable to him, as a means of establishing and proving his rights over the person he claimed. [the astrier.] i need hardly mention, after what has been said, that there is no such thing as this distinction in the thirteenth century law books. i must not omit, however, to refer to one expression which may be taken to stand in the place of the later 'villain regardant to a manor.' britton (ii. ) gives the formula of the special plea of villainage to the assize of mort d'ancestor in the following words: 'ou il poie dire qe il est soen vileyn et soen astrier et demourrant en son villenage.' there can be no doubt that residence on the lord's land is meant, and the term _astrier_ leads even further, it implies residence at a particular hearth or in a particular house. fleta gives the assize of novel disseisin to those who have been a long time away from their villain hearth[ ] ('extra astrum suum villanum,' p. ). if the term 'astrier' were restricted to villains it would have proved a great deal more than the 'villain regardant' usually relied upon. but it is of very wide application. britton uses it of free men entitled to rights of common by reason of tenements they hold in a township (i. ). bracton speaks of the case of a nephew coming into an inheritance in preference to the uncle because he had been living at the same hearth or in the same hall (in _atrio_ or _astro_) with the former owner[ ], and in such or a similar sense the word appears to have been usually employed by lawyers[ ]. on the other hand, if we look in bracton's treatise for parallel passages to those quoted from the fleta and britton about the villain astrier, we find only a reference to the fact that the person in question was a serf and holding in villainage and under the sway of a lord[ ], and so there is nothing to denote special condition in the _astrier_. when the term occurs in connexion with villainage it serves to show that a person was not only a bondman born, but actually living in the power of his lord, and not in a state of liberty. the allusion to the hearth cannot possibly mean that the man sits in his own homestead, because only a few of the villains could have been holders of separate homesteads, and so it must mean that he was sitting in a homestead belonging to his lord, which is quite in keeping with the application of the term in the case of inheritance. [the territorial hold of villainage.] the facts we have been examining certainly suppose that in the villains we have chiefly to do with peasants tilling the earth and dependent on manorial organisation. they disclose the working of one element which is not to be simply deduced from the idea of personal dependence. it may be called subjection to territorial power. the possession of a manor carries the possession of cultivators with it. it is always important to decide whether a bondman is in the seisin of his lord or not, and the chief means to show it is to trace his connexion with the territorial lordship. the interposition of the manor in the relation between master and man is, of course, a striking feature and it gives a very characteristic turn to medieval servitude. but if it is not consistent with the general theory laid down in the thirteenth century law books, it does not lead to anything like the roman _colonatus_. the serf is not placed on a particular plot of land to do definite services under the protection of the state. he may be shifted from one plot within the jurisdiction of his lord to another, from one area of jurisdiction to another, from rural labour to industrial work or house work, from one set of customs and services to another. he is not protected by his predial connexion against his lord, and in fact such predial connexion is utilised to hold and bind him to his lord. we may say, that the unfree peasant of english feudalism was legally a personal dependant, but that his personal dependence was enforced through territorial lordship. chapter ii. rights and disabilities of the villain. legal theory as we have seen endeavoured to bring the general conception of villainage under the principles of the roman law of slavery, and important features in the practice of the common law went far to support it in so doing. on the other hand, even the general legal theory discloses the presence of an element quite foreign to the roman conception. if we proceed from principles to their application in detail, we at once find, that in most cases the broad rules laid down on the subject do not fit all the particular aspects of villainage. these require quite different assumptions for their explanation, and the whole doctrine turns out to be very complex, and to have been put together out of elements which do not work well together. [villainage by birth.] we meet discrepancies and confusion at the very threshold in the treatment of the modes in which the villain status has its origin. the most common way of becoming a villain was to be born to this estate, and it seems that we ought to find very definite rules as to this case. in truth, the doctrine was changing. glanville (v. ) tried in a way to conform to the roman rule of the child following the condition of the mother, but it could not be made to work in england, and ever since bracton, both common law and jurisprudence reject it. at the close of the middle ages it was held that if born in wedlock the child took after his father[ ], and that a bastard was to be accepted as _filius nullius_ and presumed free[ ]. bracton is more intricate; the bastard follows the mother, the legitimate child follows the father; and there is one exception, in this way, that the legitimate child of a free man and a nief born in villainage takes after the mother[ ]. it is not difficult to see why the roman rule did not fit; it was too plain for a state of things which had to be considered from three different sides[ ]. the roman lawyer merely looked to the question of status and decided it on the ground of material demonstrability of origin[ ], if such an expression may be used. the medieval lawyer had the christian sanctification of marriage to reckon with, and so the one old rule had to be broken up into two rules--one applicable to legitimate children, the other to bastards. in case of _bastardy_ the tendency was decidedly in favour of retaining the roman rule, equally suiting animals and slaves, and the later theory embodied in littleton belongs already to the development of modern ideas in favour of liberty[ ]. in case of _legitimacy_ the recognition of marriage led to the recognition of the family and indirectly to the closer connexion with the father as the head of the family. in addition to this a third element comes in, which may be called properly feudal. the action of the father-rule is modified by the influence of territorial subjection. the marriage of a free man with a nief may be considered from a special point of view, if, as the feudal phraseology goes, he enters to her into her villainage[ ]. by this fact the free man puts his child under the sway of the lord, to whose villainage the mother belongs. it is not the character of the tenement itself which is important in this case, but the fact of subjection to a territorial lord, whose interest it is to retain a dependant's progeny in a state of dependency. the whole system is historically important, because it illustrates the working of one of the chief ingredients of villainage, an ingredient entirely absent from ancient slavery; whereas medieval villainage depends primarily on subjection to the territorial power of the lord. once more we are shown the practical importance of the manorial system in fashioning the state of the peasantry. generally a villain must be claimed with reference to a manor, in connexion with an unfree hearth; he is born in a nest[ ], which makes him a bondman. the strict legal notion has to be modified to meet the emergency, and villainage, instead of indicating complete personal subjection, comes to mean subjection to a territorial lord. this same territorial element not only influences the status of the issue of a marriage, it also affects the status of the parties to a marriage, when those parties are of unequal condition. most notable is the case of the free wife of a villain husband lapsing into servitude, when she enters the villain tenement of her consort; her servitude endures as long as her husband is in the lord's power, as long as he is alive and not enfranchised. the judicial practice of the thirteenth century gives a great number of cases where the tribunals refuse to vindicate the rights of women entangled in villainage by a mesalliance[ ]. such subjection is not absolute, however. the courts make a distinction between acquiring possession and retaining it. the same woman who will be refused a portion of her father's inheritance because she has married a serf, has the assize of novel disseisin against any person trying to oust her from a tenement of which she had been seised before her marriage[ ]. the conditional disabilities of the free woman are not directly determined by the holding which she has entered, but by her marital subordination to an unfree husband ('sub virga,' bract. note-book, pl. ). for this reason the position of a free husband towards the villainage of his wife a nief is not exactly parallel. he is only subject to the general rules as to free men holding in villainage[ ]. in any case, however, the instances which we have been discussing afford good illustrations of the fact, that villainage by no means flows from the simple source of personal subjection; it is largely influenced by the christian organisation of the family and by the feudal mixture of rights of property and sovereignty embodied in the manorial system. [prescription.] there are two other ways of becoming a villain besides being born to the condition; the acknowledgment of unfree status in a court of record, and prescription. we need not speak of the first, as it does not present any particulars of interest from a historical point of view. as to prescription, there is a very characteristic vacillation in our sources. in pleadings of edward iii's time its possibility is admitted, and it is pointed out, that it is a good plea if the person claimed by prescription shows that his father and grandfather[ ] were strangers. there is a curious explanatory gloss, in a cambridge ms. of bracton, which seems to go back at least to the beginning of the fourteenth century, and it maintains that free stock doing villain service lapses into villainage in the fifth generation only[ ]. on the other hand, britton flatly denies the possibility of such a thing; according to him no length of time can render free men villains or make villains free men. moreover he gives a supposed case (possibly based on an actual trial), in which a person claimed as a villain is made to go back to the sixth generation to establish his freedom.[ ] it does not seem likely that people could often vindicate their freedom by such elaborate argument, but the legal assumption expounded in britton deserves full attention. it is only a consequence of the general view, that neither the holding nor the services ought to have any influence on the status of a man, and in so far it seems legally correct. but it is easy to see how difficult it must have been to keep up these nice distinctions in practice, how difficult for those who for generations had been placed in the same material position with serfs to maintain personal freedom.[ ] for both views, though absolutely opposed to each other, are in a sense equally true: the one giving the logical development of a fundamental rule of the law, the other testifying to the facts. and so we have one more general observation to make as to the legal aspect of villainage. even in the definition of its fundamental principles we see notable discrepancies and vacillations, which are the result of the conflict between logical requirements and fluctuating facts. [criminal law in its relation to villainage.] the original unity of purpose and firmness of distinction are even more broken up when we look at the criminal and the police law where they touch villainage. in the criminal law of the feudal epoch there is hardly any distinction between free men and villains. in point of amercements there is the well-known difference as to the 'contenement' of a free landholder, a merchant and a villain, but this difference is prompted not by privilege but by the diversity of occupations. the dialogus de scaccario shows that villains being reputed english are in a lower position than free men as regards the presumption of englishry and the payment of the murder-fine,[ ] but this feature seems to have become obliterated in the thirteenth century. in some cases corporal punishment may have differed according to the rank of the culprit, and the formalities of ordeal were certainly different[ ]. the main fact remains, that both villains and free men were alike able to prosecute anybody by way of 'appeal'[ ] for injury to their life, honour, and even property[ ], and equally liable to be punished and prosecuted for offences of any kind. their equal right was completely recognized by the criminal law, and as a natural sequence of this, the pleas of the crown generally omit to take any notice of the status of parties connected with them. one may read through mr. maitland's collection of pleas of the crown edited for the selden society, or through his book of gloucestershire pleas, without coming across any but exceptional and quite accidental mentions of villainage. in fact were we to form our view of the condition of england exclusively on the material afforded by such documents, we might well believe that the whole class was all but an extinct one. one glance at assize rolls or at cartularies would teach us better. still the silence of the corona rolls is most eloquent. it shows convincingly that the distinction hardly influenced criminal law at all. [police in relation to villainage.] it is curious that, as regards police, villains are grouped under an institution which, even by its name, according to the then accepted etymology, was essentially a free institution. the system of frank pledge (_plegium liberale_), which should have included every one 'worthy of his _were_ and his _wite_,' is, as a matter of fact, a system which all through the feudal period is chiefly composed of villains[ ]. free men possessed of land are not obliged to join the tithing because they are amenable to law which has a direct hold on their land[ ], and so the great mass of free men appear to be outside these arrangements, for the police representation of the free, or, putting it the other way, feudal serfs actually seem to represent the bulk of free society. the thirteenth-century arrangements do not afford a clue to such paradoxes, and one has to look for explanation to the _history_ of the classes. the frankpledge system is a most conspicuous link between both sections of society in this way also, that it directly connects the subjugated population with the hundred court, which is the starting-point of free judicial organisation. twice a year the whole of this population, with very few exceptions, has to meet in the hundred in order to verify the working of the tithings. besides this, the class of villains must appear by representatives in the ordinary tribunals of the hundred and the shire: the reeve and the four men, mostly unfree men[ ], with their important duties in the administration of justice, serve as a counterpoise to the exclusive employment of 'liberi et legales homines' on juries. [civil disability of a villain as to his lord.] and now i come to the most intricate and important part of the subject--to the civil rights and disabilities of the villain. after what has been said of the villain in other respects, one may be prepared to find that his disabilities were by no means so complete as the strict operation of general rules would have required. the villain was able in many cases to do valid civil acts, to acquire property and to defend it in his own name. it is true that, both in theory and in practice, it was held that whatever was acquired by the bondman was acquired by the lord. the bondman could not buy anything but with his lord's money, as he had no money or chattels of his own[ ]. but the working of these rules was limited by the medieval doctrine of possession. land or goods acquired by the serf do not _eo ipso_ lapse into his lord's possession, but only if the latter has taken them into his hand[ ]. if the lord has not done so for any reason, for want of time, or carelessness, or because he did not choose to do so, the bondman is as good as the owner in respect of third persons. he can give away[ ] or otherwise alienate land or chattels, he has the assize of novel disseisin to defend the land, and leaves the assize of mort d'ancestor to his heirs. in this case it would be no good plea to object that the plaintiff is a villain. in fact this objection can be raised by a third person only with the addition that, as villain, the plaintiff does not hold in his own name, but in the name of his lord[ ]. a third person cannot except against a plaintiff merely on the ground of his personal status. as to third persons, a villain is said to be free and capable to sue all actions[ ]. this of course does not mean that he has any action for recovering or defending his possession of the tenements which he holds _in villainage_, but this disability is no consequence of his servile blood, for he shares it with the free man who holds in villainage; it is a consequence of the doctrine that the possession of the tenant in villainage is in law the possession of him who has the freehold. it may be convenient for a villain as defendant to shelter himself behind the authority of his lord[ ], and it was difficult to prevent him from doing so, although some attempts were made by the courts even in this case to distinguish whether a person had been in possession as a dependant or not. but there was absolutely nothing to prevent a villain from acting in every respect like a free man if he was so minded and was not interrupted by his lord. there was no need of any accessory action to make his acts complete and legal[ ]. again we come to an anomaly: the slave is free against everybody but his lord. [convention with the lord.] even against his lord the bondman had some standing ground for a civil action. it has rightly been maintained, that he could implead his master in consequence of an agreement with him. the assertion is not quite easy to prove however, and has been put forward too sweepingly[ ]. at first sight it seems even that the old law books, i.e. those of bracton and his followers, teach the opposite doctrine. they deal almost exclusively with the case of a feoffment made by the lord to a villain and his heirs, and give the feoffee an action only on the ground of implied manumission. the feoffor enfranchises his serf indirectly, even if he does not say so in as many words, because he has spoken of the feoffee's heirs, and the villain has no other heirs besides the lord[ ]. the action eventually proceeds in this case, because it is brought not by a serf but by a freed man. one difficult passage in bracton points another way; it is printed in a foot-note[ ]. there can be no doubt, that in it bracton is speaking of a covenant made by the lord not with a free man or a freed man, but with a villain. this comes out strongly when it is said, that the lord, and not the villain, has the assize against intruders, and when the author puts the main question--is the feoffor bound to hold the covenant or not? the whole drift of the quotation can be understood only on the fundamental assumption that we have lord and villain before us. but there are four words which militate against this obvious explanation; the words '_sibi et heredibus suis_.' we know what their meaning is--they imply enfranchisement and a freehold estate of inheritance. they involve a hopeless contradiction to the doctrine previously stated, a doctrine which might be further supported by references to britton, fleta and bracton himself[ ]. in short, if we accept them, we can hardly get out of confusion. were our text of bracton much more definitely and satisfactorily settled than it is[ ], one would still feel tempted to strike them out; as it is we have a text studded with interpolations and errors, and it seems quite certain that 'sibi et heredibus suis' has got into it simply because the compositor of tottell's edition repeated it from the conclusion of the sentence immediately preceding, and so mixed up two cases, which were to be distinguished by this very qualification. the four words are missing in all the mss. of the british museum, the bodleian and the cambridge university library[ ]. i have no doubt that further verification will only confirm my opinion. on my assumption bracton clearly distinguishes between two possibilities. in one case the deed simply binds the lord as to a particular person, in the other it binds him in perpetuity; and in this latter case, as there ought not to be any heirs of a bondman but the lord, bondage is annihilated by the deed. it is not annihilated when one person is granted a certain privilege as to a particular piece of land, and in every other respect the grantee and all his descendants remain unfree[ ]:--he has no freehold, but he has a special covenant to fall back upon. this seems to lie at the root of what bracton calls privileged villainage by covenant as distinguished from villain socage[ ]. [legal practice as to conventions.] the reader may well ask whether there are any traces of such an institution in practice, as it is not likely that bracton would have indulged in mere theoretical disquisitions on such an important point. now it would be difficult to find very many instances in point; the line between covenant and enfranchisement was so easily passed, and an incautious step would have such unpleasant consequences for landlords, that they kept as clear as possible of any deeds which might indirectly destroy their claims as to the persons of their villains[ ]. on the other hand, even privileged serfs would have a great difficulty in vindicating their rights on the basis of covenant if they remained at the same time under the sway of the lord in general. the difficulties on both sides explain why fleta and britton endorse only the chief point of bracton's doctrine, namely, the implied manumission, and do not put the alternative as to a covenant when heirs are not mentioned. still i have come across some traces in legal practice[ ] of contracts in the shape of the one discussed. a very interesting case occurred in norfolk in , before martin pateshull himself. a certain roger of sufford gave a piece of land to one of his villains, william tailor, to hold freely by free services, and when roger died, his son and heir william of sufford confirmed the lease. when it pleased the lord afterwards to eject the tenant, this latter actually brought an assize of novel disseisin and recovered possession. bracton's marginal note to the case runs thus: 'note, that the son of a villain recovered by an assize of novel disseisin a piece of land which his father had held in villainage, because the lord of the villain by his charter gave it to the son [i.e. to the plaintiff], even without manumission[ ].' the court went in this case even further than bracton's treatise would have warranted: the villain was considered as having the freehold, and an assize of novel disseisin was granted; but although such a treatment of the case was perhaps not altogether sound, the chief point on which the contention rested is brought out clearly enough. there was a covenant, and in consequence an action, although there was no manumission; and it is to this point that the marginal note draws special attention[ ]. [waynage.] again, we find in the beginning of bracton's treatise a remark[ ] which is quite out of keeping with the doctrine that the villain had no property to vindicate against his lord; it is contradicted by other passages in the same book, and deserves to be considered the more carefully on that account. our author is enumerating the cases in which the serf has an action against his lord. he follows azo closely, and mentions injury to life or to limb as one cause. azo goes on to say that a plaint may be originated by _intollerabilis injuria_, in the sense of corporeal injury. bracton takes the expression in a very different sense; he thinks that economic ruin is meant, and adds, 'should the lord go so far as to take away the villain's very _waynage_, i.e. plough and plough-team, the villain has an action.' it is true that bracton's text, as printed in existing editions, contains a qualification of this remark; it is said that only serfs on ancient demesne land are possessed of such a right. but the qualification is meaningless; the right of ancient demesne tenants was quite different, as we shall see by-and-by. the qualifying clause turns out to be inserted only in later mss. of the treatise, is wanting in the better mss., and altogether presents all the characters of a bad gloss[ ]. when the gloss is removed, we come in sight of the fact that bracton in the beginning of his treatise admits a distinct case of civil action on the part of a villain against his lord. the remark is in contradiction with the roman as well as with the established english doctrine, it is not supported by legal practice in the thirteenth century, it is omitted by bracton when he comes to speak again of the 'persona standi in judicio contra dominum[ ].' but there it is, and it cannot be explained otherwise than as a survival of a time when some part of the peasantry at least had not been surrendered to the lord's discretion, but was possessed of civil rights and of the power to vindicate them. the notion that the peasant ought to be specially protected in the possession of instruments of agricultural labour comes out, singularly enough, in the passage commented upon, but it is not a singular notion in itself. it occurs, as every one knows, in the clause of the great charter, which says that the villain who falls into the king's mercy is to be amerced 'saving his waynage.' we come across it often enough in plea rolls in cases against guardians accused of having wasted their ward's property. one of the special points in such cases often is, that a guardian or his steward has been ruining the villains in the ward's manors by destroying their waynage[ ]. of course, the protection of the peasant's prosperity, guaranteed by the courts in such trials, is wholly due to a consideration of the interests of the ward; and the care taken of villains is exactly parallel to the attention bestowed upon oaks and elms. still, the notion of waynage is in itself a peculiar and an important one, and whatever its ultimate origin may be, it points to a civil condition which does not quite fall within the lines of feudal law. [villains not to be devised.] another anomaly is supplied by britton. after putting the case as strongly as possible against serfs, after treating them as mere chattels to be given and sold, he adds, 'but as bondmen are annexed to the freehold of the lord, they are not devisable by testament, and therefore holy church can take no cognisance of them in court christian, although devised in testament.' (i. .) the exclusion of villains is not peculiar to them; they share it with the greater part of landed possessions. 'as all the courts of civil jurisdiction had been prohibited from holding jurisdiction as to testamentary matters, and the ecclesiastical courts were not permitted to exercise jurisdiction as to any question relating to freehold, there was no court which could properly take cognisance of a testamentary gift of land as such[ ].' the point to be noted is, that villains are held to be annexed to the freehold, although in theory they ought to be treated as chattels. the contradiction gives us another instance of the peculiar modification of personal servitude by the territorial element. the serf is not a colonus, he is not bound up with any particular homestead or plot of land, but he is considered primarily as a cultivator under manorial organisation, and for this reason there is a limitation on the lord's power of alienating him. let it be understood, however, that the limitation in this case does not come before us as a remnant of independent rights of the peasant. it is imposed by those interests of the feudal suzerain and of the kin which precluded the possibility of alienating land by devise[ ]. [villain tenure and villain service.] an inquiry into the condition of villains would be altogether incomplete, if it did not touch on the questions of villain tenure and villain services. both are intimately connected with personal status, as may be seen from the very names, and both have to be very carefully distinguished from it. i have had to speak of prescription as a source of villainage. opinions were very uncertain in this respect, and yet, from the mere legal point of view, there ought not to have been any difficulty about the matter. bracton takes his stand firmly on the fundamental difference between status and tenure in order to distinguish clearly between serfs and free men in a servile position[ ]. the villain is a man belonging to his lord personally; a villain holding (_villenagium_) is land held at the will of the lord, without any certainty as to title or term of enjoyment, as to kind or amount of services[ ]. serfs are mostly, though not necessarily, found on villain land; it does not follow that all those seated on villain land are serfs. free men are constantly seen taking up a _villenagium_; they do not lose by it in personal condition; they have no protection against the lord, if he choose to alter their services or oust them from the holding, but, on the other hand, they are free to go when they please. there is still less reason to treat as serfs such free peasants as are subjected to base services, i.e. to the same kind of services and payments as the villains, but on certain conditions, not more and not less. whatever the customs may be, if they are certain, not only the person holding by them but the plot he is using are free, and the tenure may be defended at law[ ]. such are the fundamental positions in bracton's treatise, and there can be no doubt that they are borne out in a general way by legal practice. but if from the general we turn to the particular, if we analyse the thirteenth-century decisions which are at the bottom of bracton's teaching, we shall find in many cases notions cropping up, which do not at all coincide with the received views on the subject. in fact we come across many apparent contradictions which can be attributed only to a state of fermentation and transition in the law of the thirteenth century. [martin of bestenover's case.] martin of bestenover's case is used by bracton in his treatise as illustrating the view that tenure has no influence on status[ ]. it was a long litigation, or rather a series of litigations. already in the first year of king john's reign we hear of a final concord between john of montacute and martin of bestenover as to a hundred acres held by the latter[ ]. the tenant is ejected however, and brings an assize of mort d'ancestor against beatrice of montacute, who, as holding in dower, vouches her son john to warranty. the latter excepts against martin as a villain. a jury by consent of the parties is called in, and we have their verdict reported three times in different records[ ]. they say that martin's father ailfric held of john montacute's father a hundred acres of land and fifty sheep besides, for which he had to pay _s._ a year, to be tallaged reasonably, when the lord tallaged his subjects, and that he was not allowed to give his daughter away in marriage before making a fine to the lord according to agreement. we do not know the decision of the judges in john's time, but both from the tenor of the verdict and from what followed, we may conclude that martin succeeded in vindicating his right to the land. proceedings break out again at the beginning of henry iii's reign. in john of montacute is again maintaining that martin is his villain, in answer as it seems to an action _de libertate probanda_ which martin has brought against him. the court goes back to the verdict of the jury in john's time, and finds that by this verdict the land is proved to be of base tenure, and the person to be free. the whole is repeated again[ ] on a roll of ; whether we have two decisions, one of and the other of , or merely two records of the same decision, is not very clear, nor is it very important. but there are several interesting points about this case. the decision in is undoubtedly very strong on the distinction between status and tenure: 'nullum erat placitum in curia domini regis de villenagio corporis ipsius martini nisi tantum de villenagio et consuetudinibus terre,' etc. as to tenure, the court delivers an opinion which is entitled to special consideration, and has been specially noticed by bracton both in his note-book and in his treatise. 'if martin,' say the judges on the roll of , 'wishes to hold the land, let him perform the services which his father has been performing; if not, the lord may take the land into his hands[ ].' the same thing is repeated almost literally on the roll of . bracton draws two inferences from these decisions. one is suggested by the beginning of the sentence; 'if martin wishes to hold the land.' both in the note-book and in the treatise bracton deduces from it, that holding and remaining on the land depended on the wish of martin, who as a free man was entitled to go away when he pleased[ ]. the judgment does not exactly say this, but as to the right of a free person to leave the land there can be no doubt. [tenant right of free man holding in villainage.] the second conclusion is, that if a free man hold in villainage by villain services he cannot be ejected by the lord against his will, provided he is performing the services due from the holding. what bracton says here is distinctly implied by the decisions of and , which subject the lord's power of dealing with the land to a condition--non-performance of services[ ]. there can be no question as to the importance of such a view; it contains, as it were, the germ of copyhold tenure[ ]. it places villainage substantially on the same footing as freehold, which may also be forfeited by discontinuance of the services, although the procedure for establishing a forfeiture in that case would be a far more elaborate one. and it must be understood that bracton's deduction by no means rests on the single case before us. he appeals also to a decision of william raleigh, who granted an assize of mort d'ancestor to a free man holding in villainage[ ]. unfortunately the original record of this case has been lost. the decision in a case of goes even further. it is an assize of novel disseisin brought by a certain william the son of henry against his lord bartholomew the son of eustace. the defendant excepts against the plaintiff as his villain; the court finds, on the strength of a verdict, that he is a villain, and still they decide that william may hold the land in dispute, if he consents to perform the services; if not, he forfeits his land[ ]. undoubtedly the decision before us is quite isolated, and it goes against the rules of procedure in such cases. once the exception proved, nothing ought to have been said as to the conditions of the tenure. still the mistake is characteristic of a state of things which had not quite been brought under the well-known hard and fast rule. and the best way to explain it is to suppose that the judges had in their mind the more familiar case of free men holding in villainage, and gave decision in accordance with martin of bestenover _v._ montacute, and the case decided by raleigh[ ]. all these instances go clean against the usually accepted doctrine, that holding in villainage is the same as holding at the will of the lord: the celebrated addition 'according to the custom of the manor' would quite fit them. they bring home forcibly one main consideration, that although in the thirteenth century the feudal doctrine of non-interference of the state between lord and servile tenantry was possessed of the field, its victory was by no means complete. everywhere we come across remnants of a state of things in which one portion at least of the servile class had civil rights as well as duties in regard to the lord. [the test of services.] matters were even more unsettled as to customs and services in their relation to status and tenure. what services, what customs are incompatible with free status, with free tenure? is the test to be the kind of services or merely their certainty? bracton remarks that the payment of merchet, i.e. of a fine for giving away one's daughter to be married, is not in keeping with personal freedom. but he immediately puts in a kind of retractation[ ], and indeed in the case of martin of bestenover it was held that the peasant was free although paying merchet. to tenure, merchet, being a personal payment, should have no relation whatever. in case of doubt as to the character of the tenure, the inquiry ought to have been entirely limited to the question whether rents and services were certain or not[ ], because it was established that even a free tenement could be encumbered with base services. in reality the earlier practice of the courts was to inquire of what special kind the services and customs were, whether merchet and fine for selling horses and oxen had been paid, whether a man was liable to be tallaged at will or bound to serve as reeve, whether he succeeded to his tenancy by 'junior right' (the so-called borough english rule), and the like. all this was held to be servile and characteristic of villainage[ ]. i shall have to discuss the question of services and customs again, when i come to the information supplied by manorial documents. it is sufficient for my present purpose to point out that two contradictory views were taken of it during the thirteenth century; 'certain or uncertain?' was the catchword in one case; 'of what kind?' in the other. a good illustration of the unsettled condition of the law is afforded by the case prior of ripley _v._ thomas fitz-adam. according to the prior, the jurors called to testify as to services and tenures had, while admitting the payment of tallage and merchet, asked leave to take the advice of robert lexington, a great authority on the bench, whether a holding encumbered by such customs could be free[ ]. the subject is important, not only because its treatment shows to what extent the whole law of social distinctions was still in a state of fermentation, but also because the classification of tenures according to the nature of customs may afford valuable clues to the origin of legal disabilities in economic and political facts. the plain and formal rule of later law, which is undoubtedly quite fitted to test the main issue as to the power of the lord, is represented in earlier times by a congeries of opinions, each of which had its foundation in some matter of fact. we see here a state of things which on the one hand is very likely to invite an artificial simplification, by an application of some one-sided legal conception of serfdom, while on the other hand it seems to have originated in a mixture and confusion of divers classes of serfs and free men, which shaded off into each other by insensible degrees. [the procedure in questions of _status_.] the procedure in trials touching the question of status was decidedly favourable to liberty. to begin with, only one proof was accepted as conclusive against it--absolute proof that the kinsfolk of the person claimed were villains by descent[ ]. the verdict of a jury was not sufficient to settle the question[ ], and a man who had been refused an assize in consequence of the defendant pleading villainage in bar had the right notwithstanding such decision to sue for his liberty. when the proof by kinship came on, two limitations were imposed on the party maintaining servitude: women were not admitted to stand as links in the proof because of their frailty and of the greater dignity of a man, and one man was not deemed sufficient to establish the servile condition of the person claimed[ ]. if the defendant in a plea of niefty, or a plaintiff in an action of liberty, could convincingly show that his father or any not too remote ancestor had come to settle on the lord's land as a stranger, his liberty as a descendant was sufficiently proved[ ]. in this way to prove personal villainage one had to prove villainage by birth. recognition of servile status in a court of record and reference to a deed are quite exceptional. the coincidence in all these points against the party maintaining servitude is by no means casual; the courts proclaimed their leaning 'in favour of liberty' quite openly, and followed it in many instances besides those just quoted. it was held, for instance, that in defending liberty every means ought to be admitted. the counsel pleading for it sometimes set up two or three pleas against his adversary and declined to narrow his contention, thus transgressing the rules against duplicity of plea 'in favour of liberty[ ].' in the case of a stranger settling on the land, his liberty was always assumed, and the court declined to construe any uncertainty of condition against him[ ]. when villainage was pleaded in bar against a person out of the power of the lord, the special question was very often examined by a jury from the place where the person excepted to had been lately resident, and not by a jury from the country where he had been born[ ]. this told against the lord, of course, because the jurors might often have very vague notions as to the previous condition of their new fellow-countryman[ ]. it would be impossible to say in what particular cases this partiality of the law is to be taken as a consequence of enlightened and humanitarian views making towards the liberation of the servile class, and in what cases it may be traced to the fact that an original element of freedom had been attracted into the constitution of villainage and was influencing its legal development despite any general theory of a servile character. there is this to be noticed in any case, that most of the limitations we have been speaking of are found in full work at the very time when villainage was treated as slavery in the books. one feature, perhaps the most important of all, is certainly not dependent on any progress of ideas: however complete the lord's power over the serf may have been, it was entirely bound up with the manorial organisation. as soon as the villain had got out of its boundaries he was regularly treated as a free man and protected in the enjoyment of liberty so long as his servile status had not been proved[ ]. such protection was a legal necessity, a necessary complement to the warranty offered by the state to its real free men. there could be no question of allowing the lord to seize on any person whom he thought fit to claim as his serf. and, again, if the political power inherent in the manor gave the lord _a_ great privileges and immunities as to the people living under his sway, this same manorial power began to tell against him as soon as such people had got under the sway of lord _b_ or within the privileged town _c_. the dependant could be effectually coerced only if he got back to his unfree nest again or through the means of such kinsfolk as he had left in the unfree nest[ ]. and so the settlement of disputed rights connected with status brings home forcibly two important positions: first the theory of personal subjection is modified in its legal application by influence in favour of liberty; and next this influence is not to be traced exclusively to moral and intellectual progress, but must be accounted for to a great extent by peculiarities in the political structure of feudalism. [enfranchisement.] one point remains to be investigated in the institution of villainage, namely modes in which a villain might become free. i have had occasion to notice the implied manumission which followed from a donation of land to a bondman and his heirs, which in process of time was extended to all contracts and concords between a lord and his serf. a villain was freed also, as is well known, by remaining for a year and a day on the privileged soil of a crown manor or a chartered town[ ]. as to direct manumission, its usual mode was the grant of a charter by which the lord renounced all rights as to the person of his villain. traces of other and more archaic customs may have survived in certain localities, but, if so, they were quite exceptional. manumission is one of the few subjects touched by glanville in the doctrine of villainage, and he is very particular as to its conditions and effects. he says that a serf cannot buy his freedom, because he has no money or goods of his own. his liberty may be bought by a third person however, and his lord may liberate him as to himself, but not as regards third persons. there seems to be a want of clearness in, if not some contradiction between these two last statements, because one does not see how manumission by a stranger could possibly be wider than that effected by the lord. again, the whole position of a freed man who remains a serf as regards everybody but his lord is very difficult to realize, even if one does not take the later view into account, which is exactly the reverse, namely that a villain is free against everybody but his lord. i may be allowed to start a conjecture which will find some support in a later chapter, when we come to speak about the treatment of freedom and serfdom in manorial documents. it seems to me that glanville has in mind liberation _de facto_ from certain duties and customs, such as agricultural work for instance, or the payment of merchet. such liberation would not amount to raising the status of a villain, although it would put him on a very different footing as to his lord[ ]. however this may be, if from glanville's times we come down to bracton and to his authorities, we shall find all requirements changed, but distinct traces of the former view still lingering in occasional decisions and practices. there are frequent cases of villains buying their freedom with their own money[ ], but the practice of selling them for manumission to a stranger is mentioned both in bracton's treatise[ ] and in his notebook. a decision of distinctly repeats glanville's teaching that a man may liberate his serf as to himself and not as to others. the marginal note in the note-book very appropriately protests against such a view, which is certainly quite inconsistent with later practice[ ]. such flagrant contradictions between authorities which are separated barely by some sixty or seventy years, and on points of primary importance too, can only tend to strengthen the inference previously drawn from other facts--that the law on the subject was by no means square and settled even by the time of bracton, but was in every respect in a state of transition. chapter iii. ancient demesne. [definition.] the old law books mention one kind of villainage which stands out in marked contrast with the other species of servile tenure. the peasants belonging to manors which were vested in the crown at the time of the conquest follow a law of their own. barring certain exceptions, of which more will be said presently, they enjoy a certainty of condition protected by law. they are personally free, and although holding in villainage, nobody has the right to deprive them of their lands, or to alter the condition of the tenure, by increasing or changing the services. bracton calls their condition one of privileged villainage, because their services are base but certain, and because they are protected not by the usual remedies supplied at common law to free tenants, but by peculiar writs which enforce the custom of the manor[ ]. it seems well worth the while to carefully investigate this curious case with a view to get at the reasons of a notable deviation from the general course, for such investigation may throw some reflected light on the treatment of villainage in the common law. legal practice is very explicit as to the limitation of ancient demesne in time and space. it is composed of the manors which belonged to the crown at the time of the conquest[ ]. this includes manors which had been given away subsequently, and excludes such as had lapsed to the king after the conquest by escheat or forfeiture[ ]. possessions granted away by saxon kings before the conquest are equally excluded[ ]. in order to ascertain what these manors were the courts reverted to the domesday description of _terra regis_. as a rule these lands were entered as crown lands, t.r.e. and t.r.w., that is, were considered to have been in the hand of king edward in , and in the hand of king william in . but strictly and legally they were crown lands at the moment when king william's claim inured, or to use the contemporary phrase, 'on the day when king edward was alive and dead.' the important point evidently was that the norman king's right in this case bridged over the conquest, and for this reason such possessions are often simply said to have been royal demesne in the time of edward the confessor. this legal view is well illustrated by a decision of the king's council, quoted by belknap, chief justice of the common pleas, in . it was held that the manor of tottenham, although granted by william the conqueror to the earl of chester before the compilation of domesday, was ancient demesne, as having been in the hands both of st. edward and of the conqueror[ ]. and so and not is the decisive year for the legal formation of this class of manors[ ]. [tenure in ancient demesne a kind of villainage.] in many respects the position of the peasantry in ancient demesne is nearly allied to that of men holding in villainage at common law. they perform all kinds of agricultural services and are subject to duties quite analogous to those which prevail in other places; we may find on these ancient manors almost all the incidents of servile custom. sometimes very harsh forms of distress are used against the tenants[ ]; forfeiture for non-performance of services and non-payments of rents was always impending, in marked contrast with the considerate treatment of free tenantry in such cases[ ]. we often come across such base customs as the payment of merchet in connexion with the 'villain socmen' of ancient demesne[ ]. and such instances would afford ample proof of the fact that their status has branched off from the same stem as villainage, if such proof were otherwise needed. [privileges of ancient demesne.] the side of privilege is not less conspicuous. the indications given by the law books must be largely supplemented from plea rolls and charters. the special favour shown to the population on soil of ancient demesne extends much further than a regulation of manorial duties would imply, it resolves itself to a large extent into an exemption from public burdens. the king's manor is treated as a franchise isolated from the surrounding hundred and shire, its tenants are not bound to attend the county court or the hundred moot[ ], they are not assessed with the rest for danegeld or common amercements or the murder fine[ ], they are exempted from the jurisdiction of the sheriff[ ], and do not serve on juries and assizes before the king's justices[ ]; they are free from toll in all markets and custom-houses[ ]. last, but not least, they do not get taxed with the country at large, and for this reason they have originally no representatives in parliament when parliament forms itself. on the other hand, they are liable to be tallaged by the king without consent of parliament, by virtue of his private right as opposed to his political right[ ]. this last privilege gave rise to a very abnormal state of things, when ancient demesne land had passed from the crown to a subject. the rule was, that the new lord could not tallage his tenants unless in consequence of a royal writ, and then only at the same time and in the same proportion as the king tallaged the demesnes remaining in his hand[ ]. this was an important limitation of the lord's power, and a consequence of the wish to guard against encroachments and arbitrary acts. but it was at the same time a curious perversion of sovereignty:--the person living on land of this description could not be taxed with the county[ ], and if he was taxed with the demesnes, his lord received the tax, and not the sovereign. i need not say that all this got righted in time, but the anomalous condition described did exist originally. there are traces of a different view by which the power of imposing tallage would have been vested exclusively in the king, even when the manor to be taxed was one that had passed out of his hand[ ]. but the general rule up to the fourteenth century was undoubtedly to relinquish the proceeds to the holder of the manor. such treatment is eminently characteristic of the conception which lies at the bottom of the whole institution of ancient demesne. it is undoubtedly based on the private privilege of royalty. all the numerous exceptions and exemptions from public liabilities and duties flow from one source: the king does not want his land and his men to be subjected to any vexatious burdens which would lessen their power of yielding income[ ]. once fenced in by royal privilege, the ancient demesne manor keeps up its private immunity, even though it ceases to be royal. and this is the second fact, with which one has to reckon. if the privileged villainage of ancient demesne is founded on the same causes as villainage pure and simple, the distinguishing element of 'privilege' is supplied to it by the private interest of the king. this seems obvious enough, but it must be insisted upon, because it guards against any construction which would pick out one particular set of rights, or one particular kind of relations as characteristic of the institution. legal practice and later theory concerned themselves mostly with peculiarities of procedure, and with the eventuality of a subject owning the manor. but the peculiar modes of litigation appropriate to the ancient demesne must not be disconnected from other immunities, and the ownership of a private lord is to be considered only as engrafted on the original right of the king. with this preliminary caution, we may proceed to an examination of those features which are undoubtedly entitled to attract most attention, namely, the special procedure which is put in action when questions arise in any way connected with the soil of ancient demesne. [parvum breve de recto.] bracton says, that in such cases the usual assizes and actions do not lie, and the 'little writ of right close' must be used 'according to the custom of the manor.' the writ is a 'little and a close' one, because it is directed by the king to the bailiffs of the manor and not to the justices or to the sheriff[ ]. it does not concern freehold estate, but only land of base though privileged tenure. an action for freehold also may be begun in a manorial court, but in that case the writ will be 'the writ of right patent' and not 'the little writ of right close[ ].' the exclusion of the tenants from the public courts is a self-evident consequence of their base condition; in fact, pleading ancient demesne in bar of an action is, in legal substance, the same thing as pleading villainage[ ]. of course, an outlet was provided by the manorial writ in this case, and there was no such outlet for villains outside the ancient demesne; but as to the original jurisdiction in common law courts, jurisdiction that is in the first instance, the position was identical. though legally self-evident, this matter is often specially noticed, and sometimes stress is laid on peculiarities of procedure, such as the inapplicability of the duel and the grand assize[ ] in land to ancient demesne, peculiarities which, however, are not universally found[ ], and which, even if they were universally found, would stand as consequence and not as cause. this may be accounted for by the observation that the legal protection bestowed on this particular class of holdings, notwithstanding its limitations, actually imparted to them something of the nature of freehold, and led to a great confusion of attributes and principles. indeed, the difficulty of keeping within the lines of privileged 'villainage' is clearly illustrated by the fact that the 'little writ,' with all its restrictions, and quite apart from any contention with the lord, recognises the tenant in ancient demesne as capable of independent action. villains, or men holding in villainage, have no writ, either manorial or extra-manorial, for the protection or recovery of their holdings, and the existence of such an action for villain socmen is in itself a limitation of the power of lord and steward, even when they are no parties to the case. and so the distinction between freehold and ancient demesne villainage is narrowed to a distinction of jurisdiction and procedure. this is so much the case that if, by a mere slip as it were, a tenement in ancient demesne has been once recovered by an assize of novel disseisin, the exclusive use of the 'little writ' is broken, and assizes will ever lie hereafter, that is, the tenement can be sued for as 'freehold' in common law courts[ ]. surely this could happen only because the tenure in ancient demesne, although a kind of villainage, closely resembled freehold. [the 'little writ' in manors alienated from the crown.] one has primarily to look for an explanation of these great privileges to manors, which had been granted by the king to private lords. on such lands the 'little writ' lay both when 'villain socmen' were pleading against each other[ ], and when a socman was opposed to his lord as a plaintiff[ ]. this last eventuality is, of course, the most striking and important one. there were some disputes and some mistakes in practice as to the operation of the rule. the judges were much exercised over the question whether an action was to be allowed against the lord in the king's court. the difficulty was, that the contending parties had different estates in the land, the one being possessed of the customary tenancy in ancient demesne, and the other of the frank fee. there are authoritative fourteenth-century decisions to the effect that, in such an action, the tenant had the option between going to the court at westminster or to the ancient demesne jurisdiction[ ]. the main fact remains, that a privileged villain had 'personam standi in judicio' against his lord, and actually could be a plaintiff against him. court rolls of ancient demesne manors frequently exhibit the curious case of a manorial lord who is summoned to appear, distrained, admitted to plead, and subjected to judgment by his own court[ ]. and as i said, one looks naturally to such instances of egregious independence, in order to explain the affinity between privileged villainage and freehold. the explanation would be insufficient, however, and this for two simple reasons. the passage of the manor into the hands of a subject only modifies the institution of ancient demesne, but does not constitute it; the 'little writ of right' is by no means framed to suit the exceptional case of a contention between lord and tenant; its object is also to protect the tenants against each other in a way which is out of the question where ordinary villainage is concerned. the two reasons converge, as it were, in the fact that the 'little writ of right' is suable in all ancient demesne manors without exception, that it applies quite as much to those which remain in the crown as to those which have been alienated from it[ ]. and this leads us to a very important deduction. if the affinity of privileged villainage and freehold is connected with the 'little writ of right' as such, and not merely with a particular application of it, if the little writ of right is framed for all the manors of ancient demesne alike, the affinity of privileged villainage and freehold is to be traced to the general condition of the king's manors in ancient demesne[ ]. although the tenants in ancient demesne are admitted to use the 'little writ of right' only, their court made it go a long way; and in fact, all or almost all the real actions of the common law had their parallel in its jurisdiction. the demandant, when appearing in court, made a protestation to sue in the nature of a writ of mort d'ancestor or of dower[ ] or the like, and the procedure varied accordingly, sometimes following very closely the lines of the procedure in the high courts, and sometimes exhibiting tenacious local usage or archaic arrangements[ ]. [procedure of revision.] actions as to personal estate could be pleaded without writ, and as for the crown pleas they were reserved to the high courts[ ]. but even in actions regarding the soil a removal to these latter was not excluded[ ]. evocation to a higher court followed naturally if the manorial court refused justice and such removal made the land frank fee[ ]. the proceedings in ancient demesne could be challenged, and thereupon a writ of false judgment brought the case under the cognizance of the courts of common law. if on examination an error was found, the sentence of the lower tribunal was quashed and the case had to proceed in the higher[ ]. instances of examination and revision are frequent in our records[ ]. the examination of the proceedings by the justices was by no means an easy matter, because they were constantly confronted by appeals to the custom of the manor and counter appeals to the principles of the common law of england. it was very difficult to adjust these conflicting elements with nicety. as to the point of fact, whether an alleged custom was really in usage or not, the justices had a good standing ground for decision. they asked, as a rule, whether precedents could be adduced and proved as to the usage[ ]; they allowed a great latitude for the peculiarities of customary law; but the difficulty was that a line had to be drawn somewhere[ ]. this procedure of revision on the whole is quite as important a manifestation of the freehold qualities of privileged villainage as pleading by writ. men holding in pure villainage also had a manorial court to go to and to plead in, but its judicial organisation proceeded entirely from the will and power of the lord, and it ended where his will and power ended; there was no higher court and no revision for such men. the writ of false judgment in respect of tenements in ancient demesne shows conclusively that the peculiar procedure provided for the privileged villains was only an instance and a variation of the general law of the land, maintaining actionable rights of free persons. and be it again noted, that there was no sort of difference as to revision between those manors which were in the actual possession of the crown and those which were out of it[ ]. revision and reversal were provided not as a complement to the legal protection of the tenant against the lord, but as a consequence of that independent position of the tenant as a person who has rights against all men which is manifested in the _parvum breve_[ ]. it is not without interest to notice in this connexion that the _parvum breve_ is sometimes introduced in the law books, not as a restriction put upon the tenant, nor as the outcome of villainage, but as a boon which provides the tenant with a plain form of procedure close at hand instead of the costly and intricate process before the justices[ ]. [breve de 'monstraverunt'.] if protection against the lord had been the only object of the procedure in cases of ancient demesne, one does not see why there should be a 'little writ' at all, as there was a remedy against the lord's encroachments in the writ of 'monstraverunt,'[ ] pleaded before the king's justices. as it is, the case of disseisin by the lord, to whom the manor had come from the crown, was treated simply as an instance of disseisin, and brought under the operation of the writ of right, while the 'monstraverunt' was restricted to exaction of increased services and change of customs[ ]. the latter writ was a very peculiar one, in fact quite unlike any other writ. the common-law rule that each tenant in severalty has to plead for himself did not apply to it; all join for saving of charges, albeit they be several tenants[ ]. what is more, one tenant could sue for the rest and his recovery profited them all; on the other hand, if many had joined in the writ and some died or withdrew, the writ did not abate for this reason, and even if but one remained able and willing to sue he could proceed with the writ[ ]. these exceptional features were evidently meant to facilitate the action of humble people against a powerful magnate[ ]. but it seems to me that the deviation from the rules governing writs at common law is to be explained not only by the general aim of the writ, but also by its origin. [petition.] in form it was simply an injunction on a plaint. when for some reason right could not be obtained by the means afforded by the common law, the injured party had to apply to the king by petition. one of the most common cases was when redress was sought for some act of the king himself or of his officers, when the consequent injunction to the common law courts or to the exchequer to examine the case invariably began with the identical formula which gave its name to the writ by which privileged villains complained of an increase of services; _monstravit_ or _monstraverunt n.n._; _ex parte n.n. ostensum est_:--these are the opening words of the king's injunctions consequent upon the humble remonstrations of his aggrieved subjects[ ]. again, we find that the application for the writ by privileged villains is actually described as a plaint[ ]. in some cases it would be difficult to tell on the face of the initiatory document, whether we have to do with a '_breve de monstraverunt_' to coerce the manorial lord, or with an extraordinary measure taken by the king with a view to settling his own interests[ ]. [the 'monstraverunt' on the king's own land.] and this brings me to the main point. although the writ under discussion seems at first sight to meet the requirement of the special case of manors alienated from the crown, on closer inspection it turns out to be a variation of the peculiar process employed to insist upon a right against the crown. parallel to the 'monstraverunt' against a lord in the common pleas we have the 'monstraverunt' against the king's bailiff in the exchequer. the following mandate for instance is enrolled in the eventful year : 'monstraverunt regi homines castri sui de brambur et schotone quod henricus spring constabularius castri de brambur injuste distringit eos ad faciendum alia servicia et alias consuetudines quam facere consueverunt temporibus predecessorum regis et tempore suo. ideo mandatum est vicecomiti quod venire etc. predictum henricum a die pasche in xv dies ad respondendum regi et predictis hominibus de predicta terra et breve etc.'[ ] there is not much to choose between this and the enrolment of a 'breve de monstraverunt' in the usual sense beyond the fact that it is entered on a roll of exchequer memoranda. in a mandate of king edward i to the barons of the exchequer is entered in behalf of the men of costeseye in norfolk who complained of divers grievances against athelwald of crea, the bailiff of the manor. the petition itself is enrolled also, and it sets forth, that whereas the poor men of the king of the base tenure in the manor of costeseye held by certain usages, from a time of which memory runs no higher, as well under the counts of brittany as under the kings to whom the manor was forfeited, now bailiff athelwald distrains them to do other services which ought to be performed by pure villains. they could sell and lease their lands in the fields at pleasure, and he seizes lands which have been sold in this way and amerces them for selling; besides this he makes them serve as reeves and collectors, and the bailiff of the late queen eleanor tallaged them from year to year to pay twenty marks, which they were not bound to do, because they are no villains to be tallaged high and low[ ]. such is the substance of this remarkable document, to which i shall have to refer again in other connexions. what i wish to establish now is, that we have on the king's own possessions the exact counterpart of the 'breve de monstraverunt.' the instances adduced are perhaps the more characteristic because the petitioners had not even the strict privilege of ancient demesne to lean upon, as one of the cases comes from northumberland, which is not mentioned in domesday, and the other concerns tenants of the honour of richmond. there can be no doubt that the tenantry on the ancient demesne had even better reasons for appealing to immemorial usage, and certainly they knew how to urge their grievances. we may take as an instance the notice of a trial consequent upon a complaint of the men of bray against the constable of windsor. bray was ancient demesne and the king's tenants complained that they were distrained to do other services than they were used to do. the judgment was in their favour[ ]. the chief point is that the writ of 'monstraverunt' appears to be connected with petitions to the king against the exactions of his officers, and may be said in its origin to be applicable as much to the actual possessions of the crown as to those which had been granted away from it. this explains a very remarkable omission in our best authorities. although the writ played such an important part in the law of ancient demesne, and was so peculiar in its form and substance, neither bracton nor his followers mention it directly. they set down 'the little writ of right close' as the only writ available for the villain socmen. as the protection in point of services is nevertheless distinctly affirmed by those writers, and as the 'monstraverunt' appears in full working order in the time of henry iii and even of john[ ], the obvious explanation seems to be that bracton regarded the case as one not of writ but of petition, a matter, we might say, rather for royal equity than for strict law. thus both the two modes of procedure which are distinctive of the ancient demesne, namely the 'parvum breve' and the 'monstraverunt,' though they attain their full development on the manors that have been alienated, seem really to originate on manors which are in the actual possession of the crown. [alienation of royal manors.] if we now examine the conditions under which the manors of the ancient demesne were alienated by the crown, we shall at once see that no very definite line could be drawn between those which had been given away and those which remained in the king's hand. the one class gradually shades off into the other. a very good example is afforded by the history of stoneleigh abbey. in king henry ii gave the cistercian monks of radmore in staffordshire his manor of stoneleigh in exchange for their possessions in radmore. the charter as given in the register of the abbey seems to amount to a complete grant of the land and of the jurisdiction. nevertheless, we find henry ii drawing all kinds of perquisites from the place all through his reign, and it is specially noticed that his writs were directed not to the abbot or the abbot's bailiffs, but to his own bailiffs in stoneleigh[ ]. in order to get rid of the inconveniences consequent upon such mixed ownership, abbot william of tyso bought a charter from king john, granting to the abbey all the soke of stoneleigh[ ]. but all the same the royal rights did not yet disappear. there were tenants connected with the place who were immediately dependent on the king[ ], and his bailiff continued to exercise functions by the side of, and in conjunction with, the officers of the abbot[ ]. in the th year of henry iii a remarkable case occurred:--a certain alexander of canle was tried for usurping the rights of the abbot as to the tenantry in the hamlet of canle, and it came out that one of his ancestors had succeeded in improving his position of collector of the revenue into the position of an owner of the rents. although the rights which were vindicated against him were the rights of the abbot, still the king entered into possession and afterwards transferred the possession to the abbot[ ]. in one word, the king is always considered as 'the senior lord' of stoneleigh; his lordship is something more direct than a mere feudal over-lordship[ ]. we find a similar state of things at king's ripton. the manor had been let in fee farm to the abbots of ramsey. in case of a tenement lapsing into the lord's hands, it is seized sometimes by the bailiff of the king, sometimes by the bailiffs of the abbot[ ]. the royal writs again are directed not to the abbot, but to his bailiff. the same was the case at stoneleigh[ ], and indeed this seems to have been the regular course on ancient demesne manors[ ]. this curious way of ignoring the lord himself and addressing the writ directly to his officers seems an outcome of the fundamental assumption that of these manors there was no real lord but the king, and that the private lord's officers were acting as the king's bailiffs. according to current notions the demesnes of the crown ought not to have been alienated at all. although alienated by one king they were considered as liable to be resumed by his successors[ ]. and as a matter of fact such resumptions were by no means unusual. edward i gave an adequate expression to this doctrine when he ordered an inquisition into the state of the tenantry at stoneleigh:--he did not wish any encroachment made on the old constitution of the manor, for he had always in mind the possibility that his royal rights would be resumed by himself or by one of his successors[ ]. [services certain on royal manors.] if we turn to the court rolls of a manor which is actually in the king's hand and compare them with those of a manor which he has granted to some convent or some private lord, we see hardly any difference between them. the rolls of the manor of havering at the record office, although comparatively late, afford a good insight into the constitution of a manor retained in the king's own hand. they contain a good many writs of right, and though, naturally enough, the tenants do not bring actions against the king, we find an instance in which the king brings an action against his tenant, and pleads before a court which is held in his own name[ ]. this is good proof that the condition of the tenants was by no means dependent on the arbitrary action of the manorial officers. when king henry ii granted stoneleigh to the cistercians he displaced a number of 'rustics' from their holdings, and while doing this he recognised their right and enjoined the sheriff of warwickshire to give them an equivalent for what they had lost in consequence of the grant[ ]. the notion from which all inquiry consequent upon a 'monstraverunt' starts is always this, that the tenants were holding by _certain_ (i.e. by fixed) services at the time when the manor was in the king's own hand. the certainty is not created by the fact that the manor passes away from the king to some one else; it exists when the land is royal land and therefore cannot be destroyed on land that has been alienated. so true is this that bracton and britton give their often cited description of privileged villainage without alluding to the question whether or no the manor is still in the king's hand[ ]; britton even applies this description primarily to the king's own possessions by his way of stating the law as the direct utterance of the king's command. the well-known fact that the 'ferm' or rent of royal manors was not always fixed, that we constantly hear of an increased rental (_incrementum_) levied in addition to the old 'ferm' (_assisa_; _redditus antiquitus assisus_), can be easily reconciled with this doctrine[ ]. the prosperity of the country was gradually rising; both in agricultural communities and in towns, new tenements and houses, new occupations and revenues were growing, and it was not the interest either of the communities or of the lord to compress this development within an unelastic bond. in principle the increased payments fell on this new growth on the demesne, although this may in some cases have been due to exactions against which the people could remonstrate only in the name of immemorial custom, and only by way of petition since nobody could judge the king. in principle, too, certainty of condition was admitted as to the privileged villains on the king's demesnes[ ]. [trial of services in 'monstraverunt'.] this serves to explain the procedure followed by the court when a question of services was raised by a writ of 'monstraverunt.' the first thing, of course, was to ascertain whether the manor was ancient demesne or not, and for this purpose nothing short of a direct mention in domesday was held to be sufficient[ ]. when this question had been solved in the affirmative, a jury had to decide what the customs and duties were, by which the ancestors of the plaintiffs held at the time when the crown was possessed of the manor. in principle it was always considered that such had been the services at the time of the conquest[ ], but practically, of course, there could be no attempt to examine into such ancient history. the men of king's ripton actually pleaded back to the time of king cnut, and maintained that no prescription was available against their rights as no prescription could avail against the king[ ]. the courts naturally declined to go higher than men could remember, but they laid down this limitation entirely as one of practice and not of principle[ ]. metingham demanded that the claimants should make good their contention even for a single day in richard coeur de lion's time[ ]. the men of wycle combine both assertions in their contention against mauger; they appeal to the age of the first norman kings, but offer to prove the certainty of their services in the reigns of richard and john[ ]. [nature of tenancy in ancient demesne.] now all that has been said hitherto applied to 'the tenants in ancient demesne' indiscriminately, without regard to any diversity of classes among them. hitherto i have not noticed any such diversity, and in so doing i am warranted by the authorities. those authorities commonly speak of 'men' or 'tenants in ancient demesne' without any further qualification[ ]. sometimes the expression 'condition of ancient demesne' also is used. but closer examination shows a variety of classes on the privileged soil, and leads to a number of difficult and interesting problems. to begin with, the nature of the tenancy in general has been much contested. as to the law of later times mr. elton puts the case in this way: 'there is great confusion in the law books respecting this tenure. the copyholders of these manors are sometimes called tenants in ancient demesne, and land held in this tenure is said to pass by surrender and admittance. this appears to be inaccurate. it is only the freeholders who are tenants in ancient demesne, and their land passes by common law conveyances without the instrumentality of the lord. even sir w. blackstone seems to have been misled upon this point. there are however, as a rule, in manors of ancient demesne, customary freeholders and sometimes copyholders at the will of the lord, as well as the true tenants in ancient demesne[ ].' now such a description seems strangely out of keeping with the history of the tenure. blackstone speaks of privileged copyhold as descended from privileged villainage[ ]; and as to the condition in the thirteenth century of those 'men' or 'tenants in ancient demesne' of whom we have been speaking, there can be no doubt. bracton and his followers lay down quite distinctly that their tenure is villainage though privileged villainage. the men of ancient demesne are men of free blood holding in villainage[ ]. and to take up the special point mentioned by mr. elton--conveyance by surrender and admittance is a quite necessary feature of the tenure[ ]: conveyance by charter makes the land freehold and destroys its ancient demesne condition[ ]. but although this is so clear in the authorities of the thirteenth century, there is undoubtedly a great deal of confusion in later law books, and reasons are not wanting which may account for this fact and for the doctrine propounded by mr. elton in conformity with certain modern treatises and decisions. [classes of tenantry.] we may start with the observation, that privileged villains or villain socmen are not the only people to be found on the soil of the ancient demesne. there are free tenants there and pure villains too[ ]. free socage is often mentioned in these manors, and it is frequently pleaded in order to get a trial transferred to the common law courts. when the question is raised whether a tenement is free or villain socage, the fact that it has been conveyed by feoffment and charter is treated, as has just been pointed out, as establishing its freehold character and subjecting it to the ordinary common law procedure[ ]. on the other hand, registers and extents of ancient demesne manors sometimes treat separately of 'nativi' or 'villani' as distinguished from the regular customary tenants, and describe their services as being particularly base[ ]. in trials it is quite a common thing for a lord, when accused of having altered the services, to plead that the plaintiffs were his villains to be treated at will. attempts were made in such cases to take advantage of the general term 'men of ancient demesne,' and to argue that all the population on the crown manors must be of the same condition, the difference of rank applying only to the amount and the kind of services, but not to their certainty, which ought to be taken for granted[ ]. but strictly and legally the lord's plea was undoubtedly good: the courts admitted it, and when it was put forward proceeded to examine the question of fact whether the lord had been actually seised of certain or of uncertain services[ ]. it is of considerable importance to note that the difference between villains pure and villains privileged was sometimes connected with the distinction between the lord's demesne and the tenant's land in the manor[ ]. the demesne proper was frank fee in the hands of the lord, and could be used by him at his pleasure. if he chose to grant it away to villains in pure villainage, the holdings thus formed could have no claim to rank as privileged land. it was assumed that some such holdings had been formed at the very beginning, as it were, that is at a time beyond memory of man, but tenements at will could be created at a later time on approved waste or on soil that had escheated to the lord and in this way passed through his demesne[ ]. one of the reasons of later confusion must be looked for in the fact that the pure villain holdings gradually got to be recognised at law as copyhold or base customary tenures. they were thus brought dangerously near to ancient demesne socage, which was originally nothing but base customary tenure. the very fact of copyhold thus gaining on villain socage may have pushed this last on towards freehold. already the old natura brevium does not know exactly how to make distinctions. it speaks of three species of socage--free, ancient demesne, and base. the line is soon drawn between the first two, but the third kind is said to be held by uncertain services, and sued by writ of 'monstraverunt' instead of having the writs of right and 'monstraverunt' of ancient demesne socage[ ]. probably what is meant is a species of copyhold which is not socage, and the writ of 'monstraverunt' attributed to it may perhaps be the plaint or petition which is the initial move in a suit for the protection of copyhold in the manorial court. [villain socage.] in the time of henry iii and of the edwards the nature of ancient demesne tenure was better understood. at the close of the thirteenth century the lawyers distinguish three kinds of men--free, villains, and socmen[ ]. in order to be quite accurate people spoke of _villain socmen_ or _little socage_[ ] in opposition to free. but even at that time there were several confusing features about the case. the certainty of condition made the tenure of the villain socmen so like a freehold that it was often treated as such in the manorial documents. in the stoneleigh register the peculiar nature of socage in ancient demesne is described fully and clearly. it is distinguished in so many words from tenancy at will, and a detailed description of conveyance by surrender in contrast with conveyance by charter seems to give the necessary material for the distinction between it and freehold[ ]. but still the fundamental notion of free men holding in villainage gets lost sight of. only some of the cottiers are said to hold in villainage. the more important tenants, the socmen holding virgates and half-virgates, are not only currently described as freeholders in the register, but they are entered as such on the warwickshire hundred roll[ ]. the term 'parva sokemanria' is applied in the stoneleigh register only to a few subordinate holdings which are undoubtedly above the level of pure villainage, but cannot be definitely distinguished from the other kinds of socage in the register. this may serve as an indication of the tendency of manorial communities to consider privileged villainage as a free tenure, but legal pleadings and decisions were also creating confusion for another reason, because they tended, as has been said, to consider the whole body of men on the ancient demesne in one lump as it were. the courts very often applied as the one test of tenure and service the question whether a person was a descendant by blood of men of ancient demesne or a stranger[ ]. in connexion with this the court rolls testify to the particular care taken to control any intrusion of strangers into the boundaries of a privileged manor[ ]. this was done primarily in the interests of the lord, but the tenantry also seem to have sometimes been jealous of their prerogatives[ ], and it is only in the course of the fourteenth century that they begin to open their gates to strangers, 'adventicii[ ].' however this may be, the practice of drawing the line between native stock and strangers undoubtedly countenanced the idea that all the tenants of native stock were alike, and in this way tended to confuse the distinction between freeholders, pure villains, and villain socmen. the courts made several attempts to insist on a firm classification, but some of these were conceived in such an unhappy spirit that they actually embroiled matters. the conduct of the king's judges was especially misdirected in one famous case which came up several times before the courts during the thirteenth century. the tenants of tavistock in devonshire were seeking protection against their lords, and appealing to the right of ancient demesne. the case was debated two or three times during henry iii's reign, and in judgment was given against the plaintiffs by an imposing quorum, as many as eight judges with the chief justice ralph hengham at their head. it was conceded that tavistock was ancient demesne, but the claimants were held to be villains and not villain socmen, and this on the ground that the domesday description did not mention socmen, but only villains[ ]. it seems strange to dispute a decision given with such solemnity by men who were much better placed to know about these things than we are, but there does not seem to be any possible doubt that hengham and his companions were entirely wrong. their decision is in contradiction with almost all the recorded cases; it was always assumed that the stiff domesday terminology was quite insufficient to show whether a man was a pure villain or a free man holding in villainage, which last would be the villain socman in ancient demesne. if hengham's doctrine had been taken as a basis for decision in these cases, no ancient demesne tenancy would have been recognised at all out of the danelaw counties, that is in far the greater part of england, as domesday never mentions socmen there at all. in the danelaw counties, on the other hand, the privilege would have been of no use, as those who were called socmen there were freeholders protected without any reference to ancient demesne. altogether the attempt to make domesday serve the purpose of establishing the mode of tenure for the thirteenth century must be called a misdirected one. it was quite singular, as the courts generally went back upon domesday only with the object of finding out whether a particular manor had been vested in the crown at the time of the conquest or not. it should be noted that bracton considered the case from a very different point of view, as one may judge by the note he jotted down on the margin of his note-book against a trial of - . he says: 'nota de villanis henrici de tracy de tawystoke qui nunquam fuerunt in manu domini regis nec antecessorum suorum et loquebantur de tempore regis edwardi coram w. de wiltona[ ].' wilton's decision must have been grounded on the assumption that the ancestors of the claimants were strangers to the manor, or else that the manor had never formed part of the ancient demesne. this would, of course, be in direct contradiction to the opinion that the tavistock tenants were descended from the king's born villains. i cannot help thinking that hengham's decision may have been prompted either by partiality towards the lord of the manor or by an ill-considered wish to compress the right of ancient demesne within the narrowest bounds possible. in any case this trial deserves attention by reason of the eminent authorities engaged in drawing up the judgment, and as illustrating the difficulties which surround the points at issue and lead to confusion both in the decisions and in the treatment of them by law writers. in order to gain firm ground we must certainly go back again to the fundamental propositions laid down with great clearness by bracton. it was not all the tenants on ancient demesne soil that had a right to appeal to its peculiar privileges--some had protection at common law and some had no protection at all. but the great majority of the tenants enjoyed special rights, and these men of ancient demesne were considered to be free by blood and holding in villainage. if the books had not noticed their personal freedom in so many words, it would have been proved by the fact that they were always capable of leaving their tenements and going away at pleasure. [bracton's historical explanation.] bracton does not restrict himself to this statement of the case; he adds a few lines to give a historical explanation of it. 'at the time of the conquest,' says he, 'there were free men holding their lands freely, and by free services or free customs. when they were ejected by stronger people, they came back and received the same lands to be held in villainage and by villain services, which were specified and certain[ ].' the passage is a most interesting one, but it calls for some comment. how is it that the special case of ancient demesne gets widened into a general description of the perturbations consequent upon the conquest? for a general description it is; by the 'stronger folk,' the 'potentiores,' are certainly not meant the king and his officers only. on the other hand, how can it be said of any but the ancient demesne tenants that they resumed their holdings by certain though base services? the wording is undoubtedly and unfortunately rather careless in this most important passage, still the main positions which bracton intended to convey are not affected by his rather clumsy way of stating them. ancient demesne tenure, notwithstanding its peculiarities, is one species of a mode of holding which was largely represented everywhere, namely of the status of free men holding in villainage; this condition had been strongly affected if not actually produced by the conquest. it is interesting to compare the description of the conquest, as given at greater length but in a looser way, in the dialogus de scaccario. it is stated there that those who had actually fought against the conqueror were deprived of their lands for ever after. those who for some reason had not actually joined in the contest were suffered to hold their lands under norman lords, but with no claim to hereditary succession. their occupation being uncertain, their lords very often deprived them of their lands and they had no means to procure restitution. their complaints gave rise to a discussion of the matter before the king, and it was held that nothing could be claimed by these people by way of succession from the time preceding the conquest, and that actionable rights could originate only in deeds granted by the norman lords[ ]. the dialogus as compared with bracton lays most stress on the opposite side of the picture; the disabilities of persons holding at will are set forth not only as a consequence of the state of things following conquest _de facto_, but as the result of a legal reconsideration of the facts. as a classification of tenures the passage would not be complete, of course, since neither the important species of free socage recognised by domesday nor the ancient demesne tenure appears. it is only the contrast between villainage and holding by charter that comes out strongly. but in one way the dialogus reinforces bracton, if i may be allowed to use the expression: for it traces back the formation of a very important kind of villainage to the conquest, and connects the attempts of persons entangled into it to obtain protection with their original rights before the conquest. [saxon origin of ancient demesne tenure.] reverting now to the question of ancient demesne, we shall have to consider what light these statements throw on the origin of the tenure. i have noticed several times that ancient demesne socage was connected in principle with the condition of things in saxon times, immediately before the conquest. the courts had to impose limitations in order to control evidence; the whole institution was in a way created by limitation, because it restricted itself to the t.r.e. of domesday as the only acceptable test of saxon condition. but, notwithstanding all these features imposed by the requirements of procedure, ancient demesne drew its origin distinctly from pre-conquest conditions. the manors forming it are taken as the manors of st. edward[ ]; the tenants, whenever they want to make a solemn claim, set forth their rights from the time of st. edward[ ], or even cnut[ ]. but does this mean that the actual privileges of the tenure were extant in saxon times? surely not. such things as freedom from common taxation, exemption from toll, separate jurisdiction, certainly existed in behalf of the king's demesnes before the conquest, but there is no intimation whatever that the king's tenants enjoyed any peculiar right or protection as to their holdings and services. the 'little writ of right' and the 'monstraverunt' are as norman, in a wide sense of the word, as the freedom from serving on assizes or sending representatives to parliament. but although there is no doubt that this tenure grew up and developed several of its peculiarities after the conquest, it had to fall back on saxon times for its substance[ ], which may be described in few words--legal protection of the peasantry. the influence of norman lawyers was exercised in shaping out certain actionable rights, the effect of conquest was to narrow to a particular class a protection originally conferred broadly, and the action of saxon tradition was to supply a general stock of freedom and independent right, from which the privileged condition of norman times could draw its nourishment, if i may put it in that way. it would be idle now to discuss in what proportion the saxon influence on the side of freedom has to be explained by the influx of men who had been originally owners of their lands, and what may be assigned to the contractual character of saxon tenant-right. this subject must be left till we come to examine the evidence supplied by saxon sources of information. my present point is that the ancient demesne tenure of the conquest is a remnant of the condition of things before the conquest[ ]. it may well be asked why the destructive effects of norman victory were arrested on ancient demesne soil? was not the king as likely to exercise his discretion in respect of the peasantry as any feudal lord, and is it likely that he would have let himself be fettered by considerations and obligations which did not bind his subjects? in view of such questions one is tempted to treat the protection of the tenants on the ancient demesne merely as a peculiar boon granted to the people whom the king had to give away. i need not say that such an interpretation would be entirely wrong. i hope i have been able to make out convincingly that legal protection given against private lords on manors which had been alienated was only an outgrowth from that certainty of condition which was allowed on the king's own lands. i will just add now that one very striking fact ought to be noticed in this connexion; certainty of tenure and service is limited to one particular class in the manor, although that class is the most numerous one. if this privilege came into being merely by the fixation of status at the time when a manor passed from the crown, the state of the villain pure would have got fixed in the same way as that of the villain socman. but it did not, and so one cannot shirk the difficult question, what gave rise to the peculiar protection against the lord when the lord happened to be king? i think that three considerations open the way out of the difficulty. to begin with, the king was decidedly considered as the one great safeguard of saxon tradition and the one defender against norman encroachments. he had constantly to hear the cry about 'the laws of edward the confessor,' and although the claim may be considered as a very vague one in general matters, it became substantiated in this case of tenure and services by the domesday record. then again, the proportion of free owners who had lapsed into territorial dependence must have been much greater on the king's land than anywhere else; it was quite usual to describe an allodial owner from the feudal point of view as holding under the king in a particular way, and villain socage was only one of several kinds of socage after all. last, but not least, the protection against exactions was in reality directed not against the king personally but against his officers, and the king personally was quite likely to benefit by it almost as much as his men. it amounted after all only to a recognition of definite customs in general, to a special judicial organisation of the manor which made it less dependent upon the steward, and to the facilities afforded for complaint and revision of judgments. as to this last it must be noted that the king's men were naturally enough in a better position than the rest of the english peasantry; the curse of villainage was that manorial courts were independent of superior organisation as far as the lower tenants were concerned. but courts in royal manors were the king's courts after all, and as such they could hardly be severed from the higher tribunals held in the king's name. i may be allowed to sum up the conclusions of this chapter under the following heads:-- . the law of ancient demesne is primarily developed in regard to the manors in the king's own hand. . the special protection granted to villain socmen in ancient demesne is a consequence of a certainty of condition as much recognised in manors which the king still holds as in those which he has alienated. . this certainty of condition is derived from the conquest as the connecting link between the norman and the saxon periods. chapter iv. legal aspect of villainage. conclusions. [method of investigation.] i have been trying to make out what the theories of the lawyers were with regard to villainage in its divers ramifications. were we to consider this legal part of the subject merely as a sort of crust superposed artificially over the reality of social facts, we should have to break through the crust in order to get at the reality. but, of course, the law regulating social conditions is not merely an external superstructure, but as to social facts is both an influence and a consequence. in one sense it is a most valuable product of the forces at play in the history of society, most valuable just by reason of the requirements of its formalism and of those theoretical tendencies which give a very definite even if a somewhat distorted shape to the social processes which come within its sphere of action. the formal character of legal theory is not only important because it puts things into order and shape; it suggests a peculiar and efficient method of treating the historical questions connected with law. the legal intellect is by its calling and nature always engaged in analysing complex cases into constitutive elements, and bringing these elements under the direction of principles. it is constantly struggling with the confusing variety of life, and from the historian's point of view it is most interesting when it succumbs in the struggle. there is no law, however subtle and comprehensive, which does not exhibit on its logical surface seams and scars, testifying to the incomplete fusing together of doctrines that cannot be brought under the cover of one principle. and so a dialectic examination of legal forms which makes manifest the contradictions and confused notions they contain actually helps us to an insight into the historical stratification of ideas and facts, a stratification which cannot be abolished however much lawyers may crave for unity and logic. [uncertainty and contradictions of legal theory.] in the particular case under discussion medieval law is especially rich in such historical clues. the law writers are trying hard to give a construction of villainage on the basis of the roman doctrine of slavery, but their fabric gives way at every point. it would be hardly a fair description to say that we find many survivals of an older state of things and many indications of a new development. everything seems in a state of vacillation and fermentation during the thirteenth century. as to the origin of the servile status the law of bastards gets inverted; in the case of matrimony the father-rule is driving the mother-rule from the ground; the influence of prescription is admitted by some lawyers and rejected by others. as to the means whereby persons may issue out of that condition, the views of glanville and bracton are diametrically opposed, and there are still traces in practice of the notion that a villain cannot buy his freedom and that he cannot be manumitted by the lord himself in regard to third persons. in their treatment of services in their reference to status the courts apply the two different tests of certainty and of kind. in their treatment of tenure they still hesitate between a complete denial of protection to villainage and the recognition of it as a mode of holding which is protected by legal remedies. and even when the chief lines are definitely drawn they only disclose fundamental contradictions in all their crudeness. in civil law, villains are disabled against their lords but evenly matched against strangers; even against a lord legal protection is lingering in the form of an action upon covenant and in the notion that the villain's wainage should be secure. in criminal and in police law villains are treated substantially as free persons: they have even a share, although a subordinate one, in the organisation of justice. the procedure in questions of status is characterised by outrageous privileges given to the lord against a man in 'a villain nest,' and by distinct favour shown to those out of the immediate range of action of the lord. the law is quite as much against giving facilities to prove a man's servitude as it is against granting that man any rights when once his servitude has been established. the reconciliation of all these contradictions and anomalies cannot be attempted on dogmatic grounds. the law of villainage must not be constructed either on the assumption of slavery, or on that of liberty, or on that of _colonatus_ or ascription. it contains elements from each of these three conditions, and it must be explained historically. [influence of lawyers.] the material hitherto collected and discussed enables us to distinguish different layers in its formation. to begin with, the influence of lawyers must be taken into account. this is at once to be seen in the treatment of distinctions and divisions. the common law, as it was forming itself in the king's court, certainly went far to smoothe down the peculiarities of local custom. even when such peculiarities were legally recognised, as in the case of ancient demesne, the control and still more the example of the common law courts was making for simplification and reducing them more or less to a generally accepted standard. the influence of the lawyers was exactly similar in regard to subdivisions on the vertical plane (if i may use the expression): for these varieties of dependence get fused into general servitude, and in this way classes widely different in their historical development are brought together under the same name. the other side of this process of simplification is shown where legal theory hardens and deepens the divisions it acknowledges. in this way the chasm between liberty and servitude increases as the notion of servitude gets broader. in order to get sharp boundaries and clear definitions to go by, the lawyers are actually driven to drop such traits of legal relations as are difficult to manage with precision, however great their material importance, and to give their whole attention to facts capable of being treated clearly. this tendency may account for the ultimate victory of the quantitative test of servitude over the qualitative one, or to put it more plainly, of the test of certainty of services over the discussion of kind of services. altogether the tendency towards an artificial crystallisation of the law cannot be overlooked. [roman law, norman law, and royal jurisdiction.] in the work of simplifying conditions artificially the lawyers had several strong reagents at their disposal. the mighty influence of roman law has been often noticed, and there can be no doubt that it was brought to bear on our subject to the prejudice of the peasantry and to the extinction of their independent rights. it would not have been so strong if many features of the vernacular law had not been brought half way to meet it. norman rules, it is well known, exercised a very potent action on the forms of procedure[ ]; but the substantive law of status was treated very differently in normandy and in england, and it is not the influx of norman notions which is important in our case, but the impetus given by them to the development of the king's courts. this development, though connected with the practice of the duchy, cannot be described simply or primarily as norman. once the leaven had been communicated, english lawyers did their own work with great independence as well as ingenuity of thought, and the decision of the king's court was certainly a great force. i need not point out again to what extent the law was fashioned by the writ procedure, but i would here recall to attention the main fact, that the opposition between 'free' and 'unfree' rested chiefly on the point of being protected or not being protected by the jurisdiction of the king's court. [social bias of legal theories.] if we examine the action of lawyers as a whole, in order to trace out, as it were, its social bias, we must come to the conclusion that it was exercised first in one direction and then in the opposite one. the refusal of jurisdiction may stand as the central fact in the movement in favour of servitude, although that movement may be illustrated almost in every department, even if one omits to take into account what may be mere instances of bad temper or gross partiality. but the wave begins to rise high in favour of liberty even in the thirteenth century. it does not need great perspicuity to notice that, apart from any progress in morals or ideas, apart from any growth of humanitarian notions, the law was carried in this direction by that development of the state which lays a claim to and upon its citizens, and by that development of social intercourse which substitutes agreement for bondage. is it strange that the social evolution, as observed in this particular curve, does not appear as a continuous _crescendo_, but as a wavy motion? i do not think it can be strange, if one reflects that the period under discussion embraces both the growth and the decay of feudalism, embraces, that is, the growth of the principle of territorial power on the ruins of the tribal system and also the disappearance of that principle before the growing influence of the state. [influence of conquest.] indirectly we have had to consider the influence of feudalism, as it was transmitted through the action of its lawyers. but it may be viewed in its direct consequences, which are as manifest as they are important. in england, feudalism in its definite shape is bound up with conquest[ ], and it is well known that, though very much hampered on the political side by the royal power, it was exceptionally complete on the side of private law by reason of its sudden, artificial, and enforced introduction. one of the most important results of conquest from this point of view was certainly the systematic way in which the subjection of the peasantry was worked out. if we look for comparison to france as the next neighbour of england and a country which has influenced england, we shall find the same elements at work, but they combine in a variety of modes according to provincial and local peculiarities. although the political power of the french baron is so much greater than that of an english lord, the _roturier_ often keeps his distance from the serf better than was the case in england. in france everything depends upon the changing equilibrium of local forces and circumstances. in england the norman conquest produced a compact estate of aristocracy instead of the magnates of the continent, each of whom was strong or weak according to the circumstances of his own particular case; it produced common law and the king's courts of common law; and it reduced the peasantry to something like uniform condition by surrounding the _liberi et legales homines_ with every kind of privilege. the national colouring given by the _dialogus de scaccario_ to the social question of the time is not without meaning in this light:--the peasants may be regarded as the remnant of a conquered race, or as the issue of rebels who have forfeited their rights. [english feudalism.] the feudal system once established produced certain effects quite apart from the conquest, effects which flowed from its own inherent properties. the conquest had cast free and unfree peasantry together into the one mould of villainage; feudalism prevented villainage from lapsing into slavery. i have shown in detail how the manor gives a peculiar turn to personal subjection. its action is perceivable in the treatment of the origin of the servile status. the villain, however near being a chattel, cannot be devised by will because he is considered as an annex to the free tenement of the lord. the connexion with a manor becomes the chief means of establishing and proving seisin of the villain. on the other hand, in the trial of _status_, manorial organisation led to the sharp distinction between persons in the power of the lord and out of it. this fact touches the very essence of the case. the more powerful the manor became, the less possible was it to work out subjection on the lines of personal slavery. without entering into the economic part of the question for the present, merely from the legal point of view it was a necessary consequence of the rise of a local and territorial power that the working people under its sway were subjected by means of its territorial organisation and within its limited sphere of local action. of course, the state upheld some of the lord's rights even outside the limits of the manor, but these were only a pale reflection of what took place within the manor, and they were more difficult to enforce in proportion as the barriers between the manors rose higher; it became very difficult for one lord to reclaim runaways who were lying within the manor of another lord. [survivals of pre-feudal condition.] if we remove those strata of the law of villainage which owe their origin to the action of the feudal system and to the action of the state, which rises on the ruins of the feudal system, we come upon remnants of the pre-feudal condition. they are by no means few or unimportant, and it is rather a wonder that so much should be preserved notwithstanding the systematic work of conquest, feudalism, and state. when i speak of pre-feudal condition i do not mean to say, of course, that feudalism had not been in the course of formation before the norman conquest. i merely wish to oppose a social order grounded on feudalism to a social order which was only preparing for it and developing on a different basis. the conquest brought together the free and unfree. our survivals of the state of things before the conquest group themselves naturally in one direction, they are manifestations of the free element which went into the constitution of villainage. it is not strange that it should be so, because the servile element predominated in those parts of the law which had got the upper hand and the official recognition. a trait which goes further than the accepted law in the direction of slavery is the difficulties which are put by glanville in the way of manumission. his statement practically amounts to a denial of the possibility of manumission, and such a denial we cannot accept. his way of treating the question may possibly be explained by old notions as to the inability of a master to put a slave by a mere act of his will on the same level with free men. [elements of freedom.] however this may be, our survivals arrange themselves with this single possible exception in the direction of freedom. perhaps such facts as the villain's capacity to take legal action against third persons, and his position in the criminal and police law, ought not to be called survivals. they are certain sides of the subject. they are indissolubly allied to such features of the civil law as the occasional recognition of villainage as a protected tenure, and the villain's admitted standing against the lord when the lord had bound himself by covenant. in the light of these facts villainage assumes an entirely different aspect from that which legal theory tries to give it. procedural disability comes to the fore instead of personal debasement. a villain is to a great extent in the power of his lord, not because he is his chattel, but because the courts refuse him an action against the lord. he may have rights recognised by morality and by custom, but he has no means to enforce them; and he has no means to enforce them because feudalism disables the state and prevents it from interfering. the political root of the whole growth becomes apparent, and it is quite clear, on the one hand, that liberation will depend to a great extent on the strengthening of the state; and, on the other hand, that one must look for the origins of enslavement to the political conditions before and after the conquest. one undoubtedly encounters difficulties in tracing and grouping facts with regard to those elements of freedom which appear in the law of villainage. sometimes it may not be easy to ascertain whether a particular trait must be connected with legal progress making towards modern times, or with the remnants of archaic institutions. as a matter of fact, however, it will be found that, save in very few cases, we possess indications to show us which way we ought to look. another difficulty arises from the fact that the law of this period was fashioned by kings of french origin and lawyers of norman training. what share is to be assigned to their formal influence? and what share comes from that old stock of ideas and facts which they could not or would not destroy? we may hesitate as to details in this respect. it is possible that the famous paragraph of the so-called laws of william the conqueror, prescribing in general terms that peasants ought not to be taken from the land or subjected to exactions[ ], is an insertion of the norman period, although the great majority of these laws are saxon gleanings. it is likely that the notion of _wainage_ was worked out under the influence of norman ideas; the name seems to show it, and perhaps yet more the fact that the plough was specially privileged in the duchy. it is to be assumed that the king, not because he was a norman but because he was a king, was interested in the welfare of subjects on whose back the whole structure of his realm was resting. but the influence of the strangers went broadly against the peasantry, and it has been repeatedly shown that norman lawyers were prompted by anything but a mild spirit towards them. the _dialogus de scaccario_ is very instructive on this point, because it was written by a royal officer who was likely to be more impartial than the feudatories or any one who wrote in their interest would be, and yet it makes out that villains are mere chattels of their lord, and treats them throughout with the greatest contempt. and so, speaking generally, it is to the times before the conquest that the stock of liberty and legal independence inherent in villainage must be traced, even if we draw inferences merely on the strength of the material found on this side of the conquest. and when we come to saxon evidence, we shall see how intimately the condition of the ceorl connects itself with the state of the villain along the main lines and in detail. [ancient demesne.] the case of ancient demesne is especially interesting in this light. it presents, as it were, an earlier and less perfect crystallisation of society on a feudal basis than the manorial system of common law. it steps in between the saxon _soc_ and _tun_ on the one hand, and the manor on the other. it owes to the king's privilege its existence as an exception. the procedure of its court is organised entirely on the old pattern and quite out of keeping with feudal ideas, as will be shown by-and-by. treating of it only in so far as it illustrates the law of status, it presents in separate existence the two classes which were fused in the system of the common law; villain socmen are carefully distinguished from the villains, and the two groups are treated differently in every way. a most interesting fact, and one to be taken up hereafter, is the way of treating the privileged group as the normal one. villain socmen are _the_ men of ancient demesne; villains are the exception, they appear only on the lord's demesne, and seem very few, so far as we can make a calculation of numbers. villain socmen enjoy a certainty of condition which becomes actual tenant-right when the manor passes from the crown into a private lord's hand. as to its origin there can be no doubt--ancient demesne is traced back to saxon times in as many words and by all our authorities. [clues as to the condition of saxon peasantry.] a careful analysis of the law of ancient demesne may even give us valuable clues to the condition of the saxon peasantry. the point just noticed, namely, that the number of villain socmen is exceedingly large and quite out of proportion to that of other tenants, gives indirect testimony that the legal protection of the tenure was not due merely to an influx of free owners deprived of their lands by conquest. this is the explanation given by bracton, but it is not sufficient to account for the privileged position of almost all the tenants within the manor. a considerable part of them surely held before the conquest not as owners and not freely, but as tenants by base services, and their fixity of tenure is as important in the constitution of ancient demesne as is the influx of free owners. if this latter cause contributed to keep up the standard of this status, the former cause supplied that tradition of certainty to which ancient demesne right constantly appeals. another point to be kept firmly in view is that the careful distinction kept up on the ancient demesne between villain socmen and villains, proves the law on this subject to have originated in the general distribution of classes and rights during the saxon period, and not in the exceptional royal privilege which preserved it in later days; i mean, that if certainty of condition had been granted to the tenantry merely because it was royal tenantry, which is unlikely enough in itself, the certainty would have extended to tenants of all sorts and kinds. it did not, because it was derived from a general right of one class of peasants to be protected at law, a right which did not in the least preclude the lord from using his slaves as mere chattels. and so i may conclude: an investigation into the legal aspect of villainage discloses three elements in its complex structure. legal theory and political disabilities would fain make it all but slavery; the manorial system ensures it something of the character of the roman _colonatus_; there is a stock of freedom in it which speaks of saxon tradition. chapter v. the servile peasantry of manorial records. [manorial documents.] it would be as wrong to restrict the study of villainage to legal documents as to disregard them. the jurisprudence and practice of the king's courts present a one-sided, though a very important view of the subject, but it must be supplemented and verified by an investigation of manorial records. with one class of such documents we have had already to deal, namely with the rolls of manorial courts, which form as it were the stepping-stone between local arrangements and the general theories of common law. so-called manorial 'extents' and royal inquisitions based on them lead us one step further; they were intended to describe the matter-of-fact conditions of actual life, the distribution of holdings, the amount and nature of services, the personal divisions of the peasantry; their evidence is not open to the objection of having been artificially treated for legal purposes. treatises on farming and instructions to manorial officers reflect the economic side of the system, and an enormous number of accounts of expenditure and receipts would enable the modern searcher, if so minded, to enter even into the detail of agricultural management[ ]. we need not undertake this last inquiry, but some comparison between the views of lawyers and the actual facts of manorial administration must be attempted. writers on common law invite one to the task by recognising a great variety of local customs; bracton, for instance, mentioning two notable deviations from general rules in the department of law under discussion. in cornwall the children of a villain and of a free woman were not all unfree, but some followed the father and others the mother[ ]. in herefordshire the master was not bound to produce his serfs to answer criminal charges[ ]. if such customs were sufficiently strong to counteract the influence of general rules of common law, the vitality of local distinctions was even more felt in those cases where they had no rules to break through. it may be even asked at the very outset of the inquiry whether there is not a danger of our being distracted by endless details. i hope that the following pages will show how the varieties naturally fall into certain classes and converge towards a few definite positions, which appear the more important as they were not produced by artificial arrangement from above. we must be careful however, and distinguish between isolated facts and widely-spread conditions. another possible objection to the method of our study may be also noticed here, as it is connected with the same difficulty. suppose we get in one case the explanation of a custom or institution which recurs in many other cases; are we entitled to generalise our explanation? this seems methodically sound as long as the contrary cannot be established, for the plain reason that the variety of local facts is a variety of combinations and of effects, not of constitutive elements and of causes. the agents of development are not many, though their joint work shades off into a great number of variations. we may be pretty sure that a result repeated several times has been effected by the same factors in the same way; and if in some instances these factors appear manifestly, there is every reason to suppose them to have existed in all the cases. such reflections are never convincing by themselves, however, and the best thing to test them will be to proceed from these broad statements to an inquiry into the particulars of the case. [terminological classification.] the study of manorial evidence must start from a discussion as to terminology. the names of the peasantry will show the natural subdivisions of the class. if we look only to the unfree villagers, we shall notice that all the varieties of denomination can easily be arranged into four classes: one of these classes has in view social standing, another economic condition, a third starts from a difference of services, and a fourth from a difference of holdings. the line may not be drawn sharply between the several divisions, but the general contrast cannot be mistaken. [terms to indicate social standing.] the term of most common occurrence is, of course, _villanus_. although its etymology points primarily to the place of dwelling, and indirectly to specific occupations, it is chiefly used during the feudal period to denote servitude. it takes in both the man who is personally unfree and stands in complete subjection to the lord, and the free person settled on servile land. both classes mentioned and distinguished by bracton are covered by it. the common opposition is between _villanus_ and _libere tenens_, not between _villanus_ and _liber homo_. it is not difficult to explain such a phraseology in books compiled either in the immediate interest of the lords or under their indirect influence, but it must have necessarily led to encroachments and disputes: it has even become a snare for later investigators, who have sometimes been led to consider as one compact mass a population consisting of two different classes, each with a separate history of its own. the latin 'rusticus' is applied in the same general way. it is less technical however, and occurs chiefly in annals and other literary productions, for which it was better suited by its classical derivation. but when it is used in opposition to other terms, it stands exactly as _villanus_, that is to say, it is contrasted with _libere tenens_[ ]. [villains personally unfree.] the fundamental distinction of personal status has left some traces in terminology. the hundred rolls, especially the warwickshire one[ ], mention _servi_ very often. sometimes the word is used exactly as _villanus_ would be[ ]. _tenere in servitute_ and _tenere in villenagio_ are equivalent[ ]. but other instances show that _servus_ has also a special meaning. cases where it occurs in an 'extent' immediately after _villanus_, and possibly in opposition to it, are not decisive[ ]. they may be explained by the fact that the persons engaged in drawing up a custumal, jotted down denominations of the peasantry without comparing them carefully with what preceded. a marginal note _servi_ would not be necessarily opposed to a _villani_ following it; it may only be a different name for the same thing. and it may be noted that in the hundred rolls these names very often stand in the margin, and not in the text. but such an explanation would be out of place when both expressions are used in the same sentence. the description of ipsden in oxfordshire has the following passage: _item dictus r. de n. habet de proparte sua septem servos villanos_. (rot. hundr. ii. , b: cf. , b, _servi custumarii_.) it is clear that it was intended, not only to describe the general condition of the peasantry, but to define more particularly their status. this observation and the general meaning of the word will lead us to believe that in many cases when it is used by itself, it implies personal subjection. the term _nativus_ has a similar sense. but the relation between it and _villanus_ is not constant; sometimes this latter marks the genus, while the former applies to a species; but sometimes they are used interchangeably[ ], and the feminine for villain is _nieve_ (_nativa_). but while _villanus_ is made to appear both in a wide and in a restricted sense, and for this reason cannot be used as a special qualification, _nativus_ has only the restricted sense suggesting status[ ]. in connection with other denominations _nativus_ is used for the personally unfree[ ]. when we find _nativus domini_, the personal relation to the lord is especially noticed[ ]. the sense being such, no wonder that the nature of the tenure is sometimes described in addition[ ]. of course, the primary meaning is, that a person has been born in the power of the lord, and in this sense it is opposed to the stranger--_forinsecus_, _extraneus_[ ]. in this sense again the domesday of st. paul's speaks of 'nativi a principio' in navestock[ ]. but the fact of being born to the condition supposes personal subjection, and this explains why _nativi_ are sometimes mentioned in contrast with freemen[ ], without any regard being paid to the question of tenure. natives, or villains born, had their pedigrees as well as the most noble among the peers. such pedigrees were drawn up to prevent any fraudulent assertion as to freedom, and to guide the lord in case he wanted to use the native's kin in prosecution of an action _de nativo habendo_. one such pedigree preserved in the record office is especially interesting, because it starts from some stranger, _extraneus_[ ], who came into the manor as a freeman, and whose progeny lapses into personal villainage; apparently it is a case of villainage by prescription. [free men holding villain land.] the other subdivision of the class--freemen holding unfree land[ ]--has no special denomination. this deprives us of a very important clue as to the composition of the peasantry, but we may gather from the fact how very near both divisions must have stood to each other in actual life. the free man holding in villainage had the right to go away, while the native was legally bound to the lord; but it was difficult for the one to leave land and homestead, and it was not impossible for the other to fly from them, if he were ill-treated by his lord or the steward. even the fundamental distinction could not be drawn very sharply in the practice of daily life, and in every other respect, as to services, mode of holding, etc., there was no distinction. no wonder that the common term _villanus_ is used quite broadly, and aims at the tenure more than at personal status. [terms to indicate economic condition.] terms which have in view the general economic condition of the peasant, vary a good deal according to localities. even in private documents they are on the whole less frequent than the terms of the first class, and the hundred rolls use them but very rarely. it would be very wrong to imply that they were not widely spread in practice. on the contrary, their vernacular forms vouch for their vitality and their use in common speech. but being vernacular and popular in origin, these terms cannot obtain the uniformity and currency of literary names employed and recognised by official authority. the vernacular equivalent for _villanus_ seems to have been _niet_ or _neat_[ ]. it points to the regular cultivators of the arable, possessed of holdings of normal size and performing the typical services of the manor[ ]. the peasant's condition is here regarded from the economical side, in the mutual relation of tenure and work, not in the strictly legal sense, and men of this category form the main stock of the manorial population. the rochester custumal says[ ] that neats are more free than cottagers, and that they hold virgates. the superior degree of freedom thus ascribed to them is certainly not to be taken in the legal sense, but is merely a superiority in material condition. the contrast with cottagers is a standing one[ ], and, being the main population of the village, _neats_ are treated sometimes as if they were the only people there[ ]. the name may be explained etymologically by the anglo-saxon _geneat_, which in documents of the tenth and eleventh century means a man using another person's land. the differences in application may be discussed when we come to examine the saxon evidence. another saxon term--_gebúr_--has left its trace in the _burus_ and _buriman_ of norman records. the word does not occur very often, and seems to have been applied in two different ways--to the chief villains of the township in some places, and to the smaller tenantry, apparently in confusion with the norman _bordarius_, in some other[ ]. the very possibility of such a confusion shows that it was going out of common use. on the other hand, the danish equivalent _bondus_ is widely spread. it is to be found constantly in the danish counties[ ]. the original meaning is that of cultivator or 'husband'--the same in fact as that of _gebúr_ and boor. feudal records give curious testimony of the way in which the word slid down into the 'bondage' of the present day. we see it wavering, as it were, sometimes exchanging with _servus_ and _villanus_, and sometimes opposed to them[ ]. another word of kindred meaning, chiefly found in eastern districts, is _landsettus_, with the corresponding term for the tenure[ ]; this of course according to its etymology simply means an occupier, a man sitting on land. [terms to indicate the nature of services.] several terms are found which have regard to the nature of services. agricultural work was the most common and burdensome expression of economical subjection. peasants who have to perform such services in kind instead of paying rents for them are called _operarii_[ ]. another designation which may be found everywhere is _consuetudinarii_ or _custumarii_[ ]. it points to customary services, which the people were bound to perform. when such tenants are opposed to the villains, they are probably free men holding in villainage by customary work[ ]. as the name does not give any indication as to the importance of the holding a qualification is sometimes added to it, which determines the size of the tenement[ ]. in many manors we find a group of tenants, possessed of small plots of land for the service of following the demesne ploughs. these are called _akermanni_ or _carucarii_[ ], are mostly selected among the customary holders, and enjoy an immunity from ordinary work as long as they have to perform their special duty[ ]. on some occasions the records mention _gersumarii_, that is peasants who pay a _gersuma_, a fine for marrying their daughters[ ]. this payment being considered as the badge of personal serfdom, the class must have consisted of men personally unfree. [terms to indicate the size of the holding.] those names remain to be noticed which reflect the size of the holding. in one of the manors belonging to st. paul's cathedral in london we find _hidarii_[ ]. this does not mean that every tenant held a whole hide. on the contrary, they have each only a part of the hide, but their plots are reckoned up into hides, and the services due from the whole hide are stated. _virgatarius_[ ] is of very common occurrence, because the virgate was considered as the normal holding of a peasant. it is curious that in consequence the virgate is sometimes called simply _terra_, and holders of virgates--_yerdlings_[ ]. peasants possessed of half virgates are _halfyerdlings_ accordingly. the expressions 'a full villain[ ]' and 'half a villain' must be understood in the same sense. they have nothing to do with rank, but aim merely at the size of the farm and the quantity of services and rents. _ferlingseti_ are to be met with now and then in connexion with the _ferling_ or _ferdel_, the fourth part of a virgate[ ]. the constant denomination for those who have no part in the common arable fields, but hold only crofts or small plots with their homesteads, is 'cotters' (_cotsetle_, _cottagiarii_, _cottarii_[ ], etc.). they get opposed to villains as to owners of normal holdings[ ]. exceptionally the term is used for those who have very small holdings in the open fields. in this case the authorities distinguish between greater and lesser cotters[ ], between the owners of a 'full cote' and of 'half a cote[ ].' the _bordarii_, so conspicuous in domesday, and evidently representing small tenants of the same kind as the cottagers, disappear almost entirely in later times[ ]. [results as to terminology.] we may start from this last observation in our general estimate of the terminology. one might expect to find traces of very strong french influence in this respect, if in any. even if the tradition of facts had not been interrupted by the conquest, names were likely to be altered for the convenience of the new upper class. and the domesday survey really begins a new epoch in terminology by its use of _villani_ and _bordarii_. but, curiously enough, only the first of these terms takes root on english soil. now it is not a word transplanted by the conquest; it was in use before the conquest as the latin equivalent of _ceorl_, _geneat_, and probably _gebúr_. its success in the thirteenth and fourteenth centuries is a success of latin, and not of french, of the half-literary record language over conversational idioms, and not of foreign over vernacular notions. the peculiarly french '_bordier_,' on the other hand, gets misunderstood and eliminated. looking to saxon and danish terms, we find that they hold their ground tenaciously enough; but still the one most prevalent before the conquest--_ceorl_-- disappears entirely, and all the others taken together cannot balance the diffusion of the 'villains.' the disappearance of _ceorl_ may be accounted for by the important fact that it was primarily the designation of a free man, and had not quite lost this sense even in the time immediately before the conquest. the spread of the latin term is characteristic enough in any case. it is well in keeping with a historical development which, though it cannot be reduced to an importation of foreign manners, was by no means a mere sequel to saxon history[ ]. a new turn had been given towards centralisation and organisation from above, and _villanus_, the latin record term, illustrates very aptly the remodelling of the lower stratum of society by the influence of the curiously centralised english feudalism. the position of the peasantry gets considered chiefly from the point of view of the lord's interests, and the classification on the basis of services comes naturally to the fore. the distribution of holdings is also noticed, because services and rents are arranged according to them. but the most important fact remains, that the whole system, though admitting theoretically the difference between personal freedom and personal subjection, works itself out into uniformity on the ground of unfree tenure. freemen holding in villainage and born villains get mixed up under the same names. the fact has its two sides. on the one hand it detracts from the original rights of free origin, on the other it strengthens the element of order and legality in the relations between lord and peasant. the peasants are _custumarii_ at the worst--they work by custom, even if custom is regulated by the lord's power. in any case, even a mere analysis of terminological distinctions leads to the conclusion that the simplicity and rigidity of legal contrasts was largely modified by the influence of historical tradition and practical life. [rights of the lord.] [classification.] our next object must be to see in what shape the rights of the lord are presented by manorial documents. all expressions of his power may be considered under three different heads, as connected with one of the three fundamental aspects of the manorial relation. there were customs and services clearly derived from the _personal subjection of the villain_, which had its historical root in slavery. some burdens again lay on the _land_, and not on the _person_. and finally, manorial exactions could grow from the _political sway_ conferred by feudal lordship. it may be difficult to distinguish in the concrete between these several relations, and the constant tendency in practice must have been undoubtedly directed towards mixing up the separate threads of subjection. still, a general survey of manorial rights has undoubtedly to start from these fundamental distinctions. [sale of villains.] there has been some debate on the question whether the lord could sell his villains. it has been urged that we have no traces of such transactions during the feudal period, and that therefore personal serfdom did not exist even in law[ ]. it can be pointed out, on the other side, that deeds of sale conveying villains apart from their tenements, although rare, actually exist. the usual form of enfranchisement was a deed of sale, and it cannot be argued that this treatment of manumission is a mere relic of former times, because both the frank and the saxon manumissions of the preceding period assume a different shape; they are not effected by sale. the existing evidence entitles one to maintain that a villain could be lawfully sold, with all his family, his _sequela_, but that in practice such transactions were uncommon[ ]. the fact is a most important one in itself; the whole aspect of society and of its work would have been different if the workman had been a saleable commodity passing easily from hand to hand. nothing of the kind is to be noticed in the medieval system. there is no slave market, and no slave trade, nothing to be compared with what took place in the slave states of north america, or even to the restricted traffic in russia before the emancipation. the reason is a curious one, and forcibly suggested by a comparison between the cases when such trade comes into being, and those when it does not. the essential condition for commercial transfer is a protected market, and such a market existed more or less in every case when men could be bought and sold. an organised state of some kind, however slightly built, is necessary as a shelter for such transfer. the feudal system proved more deficient in this respect than very raw forms of early society, which make up for deficiencies in state protection by the facilities of acquiring slaves and punishing them. the landowner had enough political independence to prevent the state from exercising an efficient control over the dependent population, and for this very reason he had to rely on his own force and influence to keep those dependents under his sway. personal dependence was locally limited, and not politically general, if one may use the expression. it was easy for the villain to step out of the precincts of bondage; it was all but impossible for the lord to treat his man as a transferable chattel. the whole relation got to be regulated more by internal conditions than by external pressure, by a customary _modus vivendi_, and not by commercial and state-protected competition. this explains why in some cases political progress meant a temporary change for the worse, as in some parts of germany and in russia: the state brought its extended influence to bear in favour of dependence, and rendered commercial transactions possible by its protection. in most cases, however, the influence of moral, economical, and political conceptions made itself felt in the direction of freedom, and we have seen already that in england legal doctrine created a powerful check on the development of servitude by protecting the actual possession of liberty, and throwing the burden of proof in questions of status on the side contending against such liberty. [merchet.] but not all the consequences of personal servitude could be removed in the same way by the conditions of actual life. of all manorial exactions the most odious was incontestably the _merchetum_, a fine paid by the villain for marrying his daughter[ ]. it was considered as a note of servile descent, and the man free by blood was supposed to be always exempted from it, however debased his position in every other respect. our authorities often allude to this payment by the energetic expression 'buying one's blood' (servus de sanguine suo emendo). it seems at first sight that one may safely take hold of this distinction in order to trace the difference between the two component parts of the villain class. in the status of the socman, developed from the law of saxon free-men, there was usually nothing of the kind. the _maritagium_ of military tenure of course has nothing in common with it, being paid only by the heiress of a fee, and resulting from the control of the military lord over the land of his retainer. the _merchetum_ must be paid for every one of the daughters, and even the granddaughters of a villain; it had nothing to do with succession, and sprang from personal subjection. when the bride married out of the power of the lord a new element was brought to bear on the case: the lord was entitled to a special compensation for the loss of a subject and of her progeny[ ]. when the case is mentioned in manorial documents, the fine gets heightened accordingly, and sometimes it is even expressly stated that an arbitrary payment will be exacted. the fine for incontinence naturally connects itself with the merchet, and a glastonbury manorial instruction enjoins the courts to present such cases to the bailiffs; the lord loses his merchet from women who go wrong and do not get married[ ]. [origin and modifications of merchet.] such is the merchet of our extents and court rolls. as i said, it has great importance from the point of view of social history. still it would be wrong to consider it as an unfailing test of _status_. although it is often treated expressly as a note of serfdom[ ], some facts point to the conclusion that its history is a complex one. in the first place this merchet fine occurs in the extents sporadically as it were. the hundred rolls, for instance, mention it almost always in buckinghamshire, and in some hundreds of cambridgeshire. in other hundreds of this last county it is not mentioned. however much we lay to the account of casual omissions of the compilers, they are not sufficient to explain the general contrast. it would be preposterous to infer that in the localities first mentioned the peasants were one and all descended from slaves, and that in those other localities they were one and all personally free. and so we are driven to the inference, that different customs prevailed in this respect in places immediately adjoining each other, and that not all the feudal serfs descended from saxon slaves paid merchet. if, on the one hand, not all the serfs paid merchet, on the other there is sufficient evidence to show that it was paid in some cases by free people. a payment of this kind was exacted sometimes from free men in villainage, and even from socage tenants. i shall have to speak of this when treating of the free peasantry; i advert to the fact now in order to show that the most characteristic test of personal servitude does not cover the whole ground occupied by the class, and at the same time spreads outside of its boundary. this observation leads us to several others which are not devoid of importance. as soon as the notion arose that personal servitude was implied by the payment of merchet,--as soon as such a notion got sanctioned by legal theory, the fine was extended in practice to cases where it did not apply originally. we have direct testimony to the effect that feudal lords introduced it on their lands in places where it had never been paid[ ], and one cannot help thinking that such administrative acts as the survey of - , the survey represented by the hundred rolls, materially helped such encroachments. the juries made their presentments in respect of large masses of peasantry, under the preponderating influence of the gentry and without much chance for the verification of particular instances. the description was not false as a whole, but it was apt to throw different things into the same mould, and to do it in the interest of landed proprietors. again, the variety of conditions in which we come across the merchet, leads us to suppose that this term was extended through the medium of legal theory to payments which differed from each other in their very essence: the commutation of the 'jus primae noctis,' the compensation paid to the lord for the loss of his bondwoman leaving the manor, and the fine for marriage to be levied by the township or the hundred, were all thrown together. last, but not least, the vague application of this most definite of social tests corroborates what has been already inferred from terminology, namely, that the chief stress was laid in all these relations, not on legal, but on economic distinctions. the stratification of the class and the determination of the lord's rights both show traits of legal status, but these traits lose in importance in comparison with other features that have no legal meaning, or else they spread over groups and relations which come from different quarters and get bound up together only through economic conditions. [servile customs.] the same observations hold good in regard to other customs which come to be considered as implying personal servitude[ ]. merchet was the most striking consequence of unfreedom, but manorial documents are wont to connect it with several others. it is a common thing to say that a villain by birth cannot marry his daughter without paying a fine, or permit his son to take holy orders, or sell his calf or horse, that he is bound to serve as a reeve, and that his youngest son succeeds to the holding after his death[ ]. this would be a more or less complete enumeration, and i need not say that in particular cases sometimes one and sometimes another item gets omitted. the various pieces do not fit well together: the prohibition against selling animals is connected with disabilities as to property, and not derived directly from the personal tie[ ]; as for the rule of succession, it testifies merely to the fact that the so-called custom of borough english was most widely spread among the unfree class. the obligation of serving as a reeve or in any other capacity is certainly derived from the power of a lord over the person of his subject; he had it always at his discretion to take his man away from the field, and to employ him at pleasure in his service. lastly, the provision that the villain may not allow his son to receive holy orders stands on the same level as the provision that he may not give his daughter in marriage outside the manor: either of these prohibited transactions would have involved the loss of a subject. [control over the movements of the peasantry.] we must place in the same category all measures intended to prevent directly or indirectly the passage of the peasantry from one place to the other. the instructions issued for the management of the abbot of gloucester's estates absolutely forbid the practice of leaving the lord's land without leave[ ]. still, emigration from the manor could not be entirely stopped; from time to time the inhabitants wandered away in order to look out for field-work elsewhere, or to take up some craft or trade. in this case they had to pay a kind of poll-tax (chevagium), which was, strictly speaking, not rent: very often it was very insignificant in amount, and was replaced by a trifling payment in kind, for instance, by the obligation to bring a capon once a year[ ]. the object was not so much to get money as to retain some hold over the villain after he had succeeded in escaping from the lord's immediate sway. there are no traces of a systematic attempt to tax and ransom the work of dependents who have left the lord's territory--nothing to match the thorough subjection in which they were held while in the manor. and thus the lord was forced in his own interest to accept nominal payments, to concentrate his whole attention on the subjects under his direct control, and to prevent them as far as possible from moving and leaving the land. in regulations for the management of estates we often find several paragraphs which have this object in view. sometimes the younger men get leave to work outside the lord's possessions, but only while their father remains at home and occupies a holding. sometimes, again, the licence is granted under the condition that the villain will remain in one of his lord's tithings[ ], an obligation which could be fulfilled only if the peasant remained within easy reach of his birth-place. special care is taken not to allow the villains to buy free land in order to claim their freedom on the strength of such free possession[ ]. every kind of personal commendation to influential people is also forbidden[ ]. notwithstanding all these rules and precepts, every page of the documents testifies to frequent migrations from the manors in opposition to the express will of the landowners. the surveys tell of serfs who settle on strange land even in the vicinity of their former home[ ]. it is by no means exceptional to find mention of enterprising landlords drawing away the population from their neighbours' manors[ ]. the fugitive villain and the settler who comes from afar are a well-marked feature of this feudal society[ ]. [limitations as to property.] the limitations of rights of property have left as distinct traces in the cartularies as the direct consequences of personal unfreedom. these two matters are connected by the principle that everything acquired by the slave is acquired by his master; and this principle finds both expression and application in our documents. on the strength of it the abbot of eynsham takes from his peasant land which had been bought by the latter's father[ ]. the case dates from the second half of the fourteenth century, from a time when the social conflict had become particularly acute in consequence of the black death, and of the consequent attempts on the part of landlords to stretch their rights to the utmost. but we have a case from the thirteenth century: the prior of barnwell quotes the above-mentioned rule in support of a confiscation of his villain's land[ ]. in both instances the principle is laid down expressly, but in other cases peasants were deprived of their property without any formal explanation. [heriot.] of course, one must look upon such treatment as exceptional. but an important and constant result of the general conception is to be found in some of the regular feudal exactions. the villain has no property of his own, and consequently he cannot transmit property. strictly speaking, there is no inheritance in villainage. as a matter of fact the peasant's property did not get confiscated after his death, but the heirs had to surrender a part of it, sometimes a very considerable one. a difference is made between chattels and land. as to the first, which are supposed to be supplied by the lord, the duty of the heir is especially onerous. on the land of the bishopric of lichfield, for instance, he has to give up as _heriot_ the best head of horned cattle, all horses, the cart, the caldron, all woollen cloth, all the bacon, all the swine except one, and all the swarms of bees[ ]. the villains of st. alban's have to give the best head of cattle, and all house furniture[ ]. but in most cases only the best beast is taken, and if there be no cattle on the tenement, then money has to be paid instead[ ]. the cartulary of battle is exceptionally lenient as to one of the abbey's manors[ ]: it liberates from all duty of the kind those who do not own any oxen. it sometimes happens, on the other hand, that the payment is doubled; one beast is taken from the late occupier by way of heriot, and the other from his widow for the life interest which is conceded to her after the death of her husband[ ]. such 'free bench' is regulated very differently by different customs. the most common requirement is, that the widow may not marry again and must remain chaste. in kent the widow has a right to half the tenement for life, even in case of a second marriage; in oxfordshire, if she marries without the lord's leave, she is left in possession only during a year and a day[ ]. in all these instances, when a second payment arises alongside of the heriot, such a payment receives also the name of heriot because of this resemblance, although the two dues are grounded on different claims. the true heriot is akin in name and in character to the saxon 'here-geat'--to the surrender of the military outfit supplied by the chief to his follower. in feudal times and among peasants it is not the war-horse and the armour that are meant, ox and harness take their place, but the difference is not in the principle, and one may even catch sometimes a glimpse of the process by which one custom shades off into the other. on the possessions of st. mary of worcester, for instance, we find the following enactment[ ]: each virgate has to give three heriots, that is a horse, harness, and two oxen; the half-virgate two heriots, that is a harnessed horse and one ox; other holdings give either a horse or an ox. in such connexion the payment has nothing servile about it, and simply appears as a consequence of the fact or assumption that the landlord has provided his peasant with the necessary outfit for agricultural work. and still the heriot is constantly mentioned along with the merchet as a particularly base payment, and though it might fall on the succession of a free man holding in villainage, it is not commonly found on free land. the fact that this old saxon incident of dependence becomes in the feudal period a mark of servile tenure, is a fact not without significance. [relief.] it is otherwise with the _relief_ (relevium), the duty levied for the resumption of the holding by the heir: it extends equally to military tenure and to villainage. although the heriot and relief get mixed up now and then, their fundamental difference is realised by the great majority of our documents and well grounded on principle. in one case the chattels are concerned, in the other the tenement; one is primarily a payment in kind, the other a money-fine. as to the amount of the relief the same fluctuations may be traced as in the case of the heriot. the most common thing is to give a year's rent; but in some instances the heir must settle with the lord at the latter's will, or ransom the land as a stranger, that is by a separate agreement in each single case[ ]. fixed sums occur also, and they vary according to the size and quality of the holding[ ]. [political rights.] on the boundary between personal subjection and political subordination we find the liability of the peasantry to pay _tallage_. it could be equally deduced from the principle that a villain has nothing of his own and may be exploited at will by his master or from the political grant of the power of taxation to the representative of feudal privilege. the payment of arbitrary tallage is held during the thirteenth century to imply a servile status[ ]. such tallage at will is not found very often in the documents, although the lord sometimes retained his prerogative in this respect even when sanctioning the customary forms of renders and services. now and then it is mentioned that the tallage is to be levied once a year[ ], although the amount remains uncertain. as a holder of political power the lord has a right to inflict fines and amercements on transgressors[ ]. the court-rolls are full of entries about such payments, and it seems that one of the reasons why very great stress was laid on attendance at the manorial courts was connected with the liability to all sorts of impositions that was enforced by means of these gatherings. tenants had to attend and to make presentments, to elect officers, and to serve on juries; and in every case where there was a default or an irregularity of any kind, fines flowed into the lord's exchequer. lastly, we may classify under the head of political exactions, monopolies and privileges such as those which were called _banalités_ in france: they were imposed on the peasantry by the strong hand, although there was no direct connexion between them and the exercise of any particular function of the state. english medieval documents often refer to the privileged mill, to which all the villains and sometimes the freemen of the soke were bound to bring their corn[ ]; there is also the manorial fold in which all the sheep of the township had to be enclosed[ ]. in the latter case the landlord profited by the dung for manuring his land. special attention was bestowed on supervising the making of beer: court-rolls constantly speak of persons fined for brewing without licence. every now and then we come across the wondrous habit of collecting all the villagers on fixed days and making them drink _scotale_[ ], that is ale supplied by the lord--for a good price, of course. [villain tenure.] let us pass now to those aspects of manorial usage which are directly connected with the mode of holding land. i may repeat what i said before, that it would be out of the question to draw anything like a hard and fast line between these different sides of one subject. how intimately the personal relation may be bound up with the land may be gathered, among other things, from the fact that there existed an oath of fealty which in many places was obligatory on villains when entering into possession of a holding. this oath, though connected with tenure, bears also on the personal relation to the lord[ ]. the oath of fealty taken by the tenant in villainage differed from that taken by the freeholder in that it contained the words, 'i will be justified by you in body and goods'; and again the tenant in villainage, though he swore fealty, did no homage; the relationship between him and his lord was not a merely feudal relationship; the words, 'i become your man,' would have been out of place, and there could be no thought of the lord kissing his villain. but however intimate the connexion between both aspects of the question, in principle the tenure was quite distinct from the status, and could influence the condition of people who were personally free from any taint of servility. the legal definition of villainage as unfree tenure does not take into account the services or economic quality of the tenure, and lays stress barely on the precarious character of the holding[ ]. the owner may take it away when he pleases, and alter its condition at will. the abingdon chronicle tells us[ ] that before the time of abbot faritius it was held lawful on the manors of the abbey to drive the peasants away from their tenements. the stewards and bailiffs often made use of this right, if anybody gave them a fee out of greed, or out of spite against the holder. nor was there any settled mode of succession, and when a man died, his wife and children were pitilessly thrown out of their home in order to make place for perfect strangers. an end was put to such a lawless condition of things by faritius' reforms: he was very much in want of money, and found it more expedient to substitute a settled custom for the disorderly rule of the stewards. but he did not renounce thereby any of his manorial rights: he only regulated their application. the legal feature of base tenure--its insecurity--was not abolished on the abingdon estates. our documents sometimes go the length of explaining that particular plots are held without any sort of security against dispossession. we find such remarks in the warwickshire hundred rolls for instance[ ]. sometimes the right is actually enforced: in the cartulary of dunstable priory we have the record of an exchange between two landlords, in consequence of which the peasants were removed from eight hides of land by one of the contracting parties[ ]. [control of the lord over the villain's land.] the villain is in no way to be considered as the owner of the plot of land he occupies; his power of disposing of it is stinted accordingly, and he is subjected to constant control from the real owner. he cannot fell timber; oaks and elms are reserved to the lord[ ]. he cannot change the cultivation of the land of his own accord; it would be out of the question, for instance, to turn a garden-close into arable without asking for a licence[ ]. he is bound to keep hedges and ditches in good order, and is generally responsible for any deterioration of his holding. when he enters into possession of it, he has to find a pledge that he will perform his duties in a satisfactory manner[ ]. there can be no thought of a person so situated alienating the land by an act of his own will; he must surrender it into the hand of the lord, and the latter grants it to the new holder after the payment of a fine. the same kind of procedure is followed when a tenement is passed to the right heir in the lifetime of the former possessor[ ]. a default in paying rents or in the performance of services, and any other transgression against the interests of the lord, may lead to forfeiture[ ]. the lord takes also tenements into his hand in the way of escheat, in the absence of heirs. court-rolls constantly mention plots which have been resumed in this way by the lord[ ]. the homage has to report to the steward as to all changes of occupation, and as to the measures which are thought necessary to promote the interests of the landowner and of the tenantry[ ]. [tenure by rent considered free; tenure by agricultural work, servile.] as to the treatment of tenure in manorial documents, it is to be noticed that a distinction which has no juridical meaning at all becomes all important in practice. at common law, as has been said repeatedly, the contrast between free land and servile land resolves itself into a contrast between precarious occupation and proprietary right. this contrast is noticed occasionally and as a matter of legal principle by manorial documents[ ] quite apart from the consequences which flow from it, and of which i have been speaking just now. but in actual life this fundamental feature is not very prominent; all stress is laid on the distinction between land held by rent and land held by labour. in the common phraseology of surveys and manorial rolls, the tenements on which the rent prevails over labour are called 'free tenements,' and those on the contrary which have to render labour services, bear the names of 'servile holdings.' this fact is certainly not to be treated lightly as a mere result of deficient classification or terminology. it is a very important one and deserves to be investigated carefully. in the ancient survey of glastonbury abbey, compiled in , the questions to be answered by the jury are enumerated in the following way: 'who holds freely, and how much, and by what services, and by whose warrant, and from what time? has land which ought to perform work been turned into free land in the time of bishop henry, or afterwards? by whose warrant was this change made, and to what extent is the land free? is the demesne land in cultivation, or is it given away in free tenure or villain tenure; is such management profitable, or would it be better if this land was taken back by the lord[ ]?' the contrast is between land which provides labour and land which does not; the former is unfree, and villain tenure is the tenure of land held by such services; portions of the demesne given away freely may eventually be reclaimed. the scheme of the survey made in answer to these questions is entirely in keeping with this mode of classification. all holdings are considered exclusively from the economic point of view; the test of security and precarious occupation is never applied. it is constantly noticed, on the other hand, whether a plot pays rent or provides labour, whether it can be transferred from one category into the other, on what conditions demesne land has been given to peasants, and whether it is expedient to alter them. let us take the following case as an instance: john clerk had in the time of bishop henry one virgate in domerham and holds it now, and another virgate in stapelham for ten shillings. when he farmed the domerham manor he left on his own authority the virgate in stapelham and took half a virgate in domerham, as it was nearer. this half virgate ought to work and is now free. and the virgate in stapelham, though it was free formerly, has to work now, after the exchange[ ]. the opposition is quite clear, and entirely suited to the list of questions addressed to the jury. the meaning of the terms _free_ and _freedom_ is also brought out by the following example. anderd budde holds half a virgate of demesne land, from the time of bishop henry, by the same services as all who hold so much. the village has to render as gift twenty-nine shillings and six pence. six pence are wanting (to complete the thirty shillings?) because anderd holds more freely than his ancestors used to[ ]. such phraseology is by no means restricted to one document or one locality. in a ramsey cartulary we find the following entry in regard to a huntingdonshire manor: 'of seven hides one is free; of the remaining six two virgates pay rent. the holder pays with the villains; he pays merchet and joins in the boon-work as the villains. the remaining five hides and three virgates are in pure villainage[ ].' the gradation is somewhat more complex here than in the somersetshire instance: besides free land and working land we have a separate division for mixed cases. but the foundation is the same in both documents. earlier surveys of ramsey abbey show the same classification of holding into free and working virgates (_liberae_, _ad opus_[ ]). [terra ad furcam et flagellum.] in opposition to free service, that is rent, we find both the _villenagium_[ ] and the _terra consuetudinaria_ or _customaria_[ ], burdened with the usual rural work. sometimes the document points out that land has been freed or exempted from the common duties of the village[ ]; in regard to manorial work the village formed a compact body. the notion which i have been explaining lies at the bottom of a curious designation sometimes applied to base tenure in the earlier documents of our period--_terra ad furcam et flagellum_[ ], fleyland. the latin expression has been construed to mean land held by a person under the lord's jurisdiction, under his gallows and his whip, but this explanation is entirely false. the meaning is, that a base holding is occupied by people who have to work with pitchfork and flail, and may-be other instruments of agriculture[ ], instead of simply paying rent. in view of such a phraseology the same tenement could alternately be considered as a free or a servile one, according to its changing obligations[ ]. some surveys insert two parallel descriptions of duties which are meant to fit both eventualities; when the land is _ad opus_, it owes such and such services; when it is _ad censum_, it pays so much rent. it must be added, that in a vast majority of cases rent-paying land retains some remnants of services, and, _vice versâ_, land subjected to village-work pays small rents[ ]; the general quality of the holding is made to depend on the prevailing character of the duties. the double sense in which the terms 'free tenure' and 'servile tenure' are used should be specially noticed, because it lays bare the intimate connexion between the formal divisions of feudal law and the conditions of economic reality. i have laid stress on the contrast between the two phraseologies, but, of course, they could not be in use at the same time without depending more or less on each other. and it is not difficult to see, that the legal is a modification of the economic use of terms, that it reduces to one-sided simplicity those general facts which the evidence of every day life puts before us in a loose and complex manner: that land is really free which is not placed in a constant working submission to the manor, in constant co-operation with other plots, similarly arranged to help and to serve in the manor. however heavy the rent, the land that pays it has become independent in point of husbandry, its dependence appears as a matter of agreement, and not an economic tie. when a tenement is for economic purposes subordinated to the general management of the manor, there is almost of necessity a degree of uncertainty in its tenure; it is a satellite whose motions are controlled by the body round which it revolves. on the other hand, mere payments in money look like the outcome of some sort of agreement, and are naturally thought of as the result of contract. [custom in the exercise of manorial rights.] everything is subject to the will and pleasure of the lord; but this will and pleasure does not find expression in any capricious interference which would have wantonly destroyed order and rule in village life. under cover of this will, customs are forming themselves which regulate the constantly recurring events of marriage, succession, alienation, and the like. curious combinations arise, which reflect faithfully the complex elements of village life. an instruction for stewards provides, for instance, that one person ought not to hold several tenements; where such agglomerations exist already they ought to be destroyed, _if it can be done conveniently and honestly_[ ]. in one of the manors of st. paul of london the plots held by the ploughmen are said to be resumable by the lord without any injury to hereditary succession[ ]. 'the rule of hereditary succession' is affirmed in regard to normal holdings by this very exception. we find already the phrase of which the royal courts availed themselves, when in later days they extended their protection to this base tenure: the tenants hold 'by the custom of the manor[ ].' on the strength of such custom the life of the unfree peasantry takes a shape closely resembling that of the free population; transactions and rights spring into being which find their exact parallel in the common law of the 'free and lawful' portion of the community. walter, a villain of st. alban's, surrenders into the hand of the monastery two curtilages, which are thereupon granted to his daughter and her husband for life, upon condition that after their death the land is to revert to walter or to his heirs[ ]. an essex villain claims succession by hereditary right, for himself and his heirs[ ]. i have already spoken of the 'free bench' to be found equally on free and unfree land. in the same way there exists a parallel to the so-called 'curtesy of england' in the practice of manorial courts; if the son inherits land from his mother during his father's life, the latter enjoys possession during his life, or, it may be, only until his son comes of age. in view of all this manorial documents have to draw a distinction between tenements in villainage and land held at the will of the lord, not in the general, but in the special and literal sense of the term[ ]. from a formal point of view, villain tenure by custom obtained its specific character and its name from a symbolical act performed in open court by the steward; a rod was handed over to the new holder by the lord's representative, and a corresponding entry made in the roll of the court. hence the expression _tenere per virgam aut per rotulum curie_[ ]. [customary duties of the lord in regard to the peasantry.] i ought perhaps to treat here of the different and interesting forms assumed by services and rents as consequences of manorial organisation. but i think that this subject will be understood better in another connexion, namely as part of the agrarian system. one side only of it has to be discussed here. everywhere customs arise which defend the villains from capricious extortions on the part of the lord and steward. these customs mostly get 'inbreviated[ ],' described in surveys and cartularies, and although they have no legally binding power, they certainly represent a great moral authority and are followed in most cases. a very characteristic expression of their influence may be found in the fact that the manorial rolls very often describe in detail, not only what the peasants are bound to do for the lord, but what the lord must do for the peasants; especially when and how he is to feed them. of course, the origin of such usage cannot be traced to anything like a right on the part of the villain; it comes from the landlord's concessions and good-will, but grace loses its exceptional aspect in this case and leads to a morally binding obligation[ ]. when the villain brings his yearly rent to his lord, the latter often invites him to his table[ ]. very common is the practice of providing a meal for the labourers on the _boon-days_, the days on which the whole population of the village had to work for the lord in the most busy time of the summer and autumn. such boon-work was considered as a kind of surplus demand; it exceeded the normal distribution of work. it is often mentioned accordingly that such service is performed out of affection for the lord, and sometimes it gets the eloquent name of 'love-bene.' in proportion as the manorial administration gets more work done in this exceptional manner, it becomes more and more gracious in regard to the people. 'dry requests' (siccae precariae) are followed by 'requests with beer' (precariae cerevisiae). but it was not beer alone that could be got on such days. here is a description of the customs of borle, a manor belonging to christ church, canterbury, in essex. 'and let it be known that when he, the villain, with other customers shall have done cutting the hay on the meadow in raneholm, they will receive by custom three quarters of wheat for baking bread, and one ram of the price of eighteen pence, and one pat of butter, and one piece of cheese of the second sort from the lord's dairy, and salt, and oatmeal for cooking a stew, and all the morning milk from all the cows in the dairy, and for every day a load of hay. he may also take as much grass as he is able to lift on the point of his scythe. and when the mown grass is carried away, he has a right to one cart. and he is bound to carry sheaves, and for each service of this kind he will receive one sheaf, called "mene-schef." and whenever he is sent to carry anything with his cart, he shall have oats, as usual, so much, namely, as he can thrice take with his hand[ ].' all such customs seem very strange and capricious at first sight. but it is to be noticed that they occur in different forms everywhere, and that they were by no means mere oddities; they became a real and sometimes a heavy burden for the landlord. the authorities, the so-called 'inquisitiones post mortem' especially, often strike a kind of balance between the expense incurred and the value of the work performed. by the end of the thirteenth century it is generally found that both ends are just made to meet in cases of extra work attended by extra feeding, and in some instances it is found that the lord has to lay out more than he gets back[ ]. the rise in the prices of commodities had rendered the service unprofitable. no wonder that such 'boon-work' has to be given up or to be commuted for money. [customs in the arrangement of agricultural work.] these regularly recurring _liberationes_ or _liberaturae_ as they are called, that is, meals and provender delivered to the labourers, have their counterpart in the customary arrangement of the amount and kind of services. i shall have to speak of their varieties and usual forms in another connexion, but it must be noticed now, that these peasants unprotected at law were under the rule of orderly custom. we have seen already that the payments and duties which followed from the subjection of the villains were for the most part fixed according to constant rules in each particular case. the same may be said of the economical pressure exercised in the shape of service and rent. it did not depend on the caprice of the lord, although it depended theoretically on his will. the villains of a manor in leicestershire are not bound to work at weeding the demesne fields unless by their own consent, that is by agreement[ ]. a baker belonging to glastonbury abbey is not bound to carry loads unless a cart is provided him[ ]. a survey of ely mentions that some peasants are made to keep a hedge in order as extra work and without being fed. but it is added that the jurors of the village protest against such an obligation, as heretofore unheard of[ ]. all these customs and limitations may, of course, be broken and slighted by the lord, but such violent action on his part will be considered as gross injustice, and may lead to consequences unpleasant for him--to riots and desertion. it is curious that the influence of custom makes itself felt slowly but surely among the most debased of the villains. the oxfordshire hundred roll treats for instance of the _servi_ of swincombe. they pay merchet; if any of them dies without making his will the whole of his moveable property falls to the lord. they are indeed degraded. and still the lord does not tallage them at pleasure--they are secure in the possession of their waynage (_salvo contenemento_)[ ]. we may sum up the results already obtained by our analysis of manorial documents in the following propositions:-- . the terminology of the feudal period and the treatment of tenure in actual life testify to the fact that the chief stress lay more on tenure than on status, more on economical condition than on legal distinctions. . the subdivisions of the servile class and the varieties of service and custom show that villainage was a complex mould into which several heterogeneous elements had been fused. . the life of the villain is chiefly dependent on custom, which is the great characteristic of medieval relations, and which stands in sharp contrast with slavery on the one hand and with freedom on the other. chapter vi. free peasantry. i hope the heading of this chapter may not be misunderstood. it would be difficult to speak of free peasantry in the modern sense at the time with which we are now dealing. some kind or form of dependence often clings even to those who occupy the best place among villagers as recognised free tenants, and in most cases we have a very strong infusion of subjection in the life of otherwise privileged peasants. but if we keep to the main distinctions, and to the contrast which the authorities themselves draw between the component elements of the peasant class, its great bulk will arrange itself into two groups: the larger one will consist of those ordinarily designated as _villains_; a smaller, but by no means an insignificant or scanty one, will present itself as _free_, more or less protected by law, and more or less independent of the bidding of the lord and his steward. there is no break between the two groups; one status runs continuously into the other, and it may be difficult to distinguish between the intermediate shades; but the fundamental difference of conception is clearly noticeable as soon as we come to look at the whole, and it is not only noticeable to us but was noticed by the contemporary documents. [general condition of england.] in very many cases we are actually enabled to see how freedom and legal security gradually emerge from subjection. one of the great movements in the social life of the thirteenth and fourteenth centuries is the movement towards the commutation of services for money rents. in every survey we find a certain number of persons who now pay money, whereas they used to do work, and who have thus emancipated themselves from the most onerous form of subjection[ ]. in the older documents it is commonly specified that the lord may revert to the old system, give up the rents, and enforce the services[ ]. in later documents this provision disappears, having become obsolete, and there is only a mention of certain sums of money. the whole process, which has left such distinct traces in the authorities, is easily explained by england's economic condition at that time. two important factors co-operated to give the country an exceptionally privileged position. england was the only country in europe with a firmly constituted government. the norman conquest had powerfully worked in the sense of social feudalism, but it had arrested the disruptive tendencies of political feudalism. the opposition between the two races, the necessity for both to keep together, the complexity of political questions which arose from conquest and settlement on the one hand, from the intercourse with normandy and france on the other,--all these agencies working together account for a remarkable intensity of action on the part of the centripetal forces of society, if i may use the expression: there was in england a constant tendency towards the concentration and organisation of political power in sharp contrast with the rest of europe where the state had fallen a prey to local and private interests. one of the external results of such a condition was the growth of a royal power supported by the sympathy of the lower english-born classes, but arranging society by the help of norman principles of fiscal administration. not less momentous was the formation of an aristocracy which was compelled to act as a class instead of acting as a mere collection of individuals each striving for his own particular advantage; as a class it had to reckon with, and sometimes represent, the interests and requirements of other classes. in all these respects england was much ahead of germany, where tribal divisions were more powerful than national unity, and the state had to form itself on feudal foundations in opposition to a cosmopolitan imperial power; it was not less in advance of france, where the work of unification, egotistically undertaken by the king, had hardly begun to get the upper hand in its conflict with local dynasties; not less in advance of italy, so well situated for economic progress, but politically wrecked by its unhappy connexion with germany, the anti-national influence of the papacy, and the one-sided development of municipal institutions. by reason of its political advantages england had the start of other european countries by a whole century and even by two centuries. the 'silver streak' acted already as a protection against foreign inroads, the existence of a central power insured civil order, intercourse between the different parts of the island opened outlets to trade, and reacted favourably on the exchange of commodities and the circulation of money. another set of causes operated in close alliance with these political influences. the position of england in relation to the european market was from the first an advantageous one. besides the natural development of seafaring pursuits which lead to international trade, and always tend to quicken the economic progress, there were two special reasons to account for a speedy movement in the new direction: the woollen trade with flanders begins to rise in the twelfth century, and this is the most important commercial feature in the life of north-western europe; then again, the possession of normandy and the occupation of aquitaine and other provinces of france by the english opened markets and roads for a very brisk commercial intercourse with the continent. as an outcome of all these political and economical conditions we find the england of the thirteenth century undoubtedly moving from _natural husbandry_ to the _money-system_. [commutation.] the consequences are to be seen on every side in the arrangements of state and society. the means of government were modified by the economic change. hired troops took the place of feudal levies; kings easily renounced the military service of their tenants and took scutages which give them the means of keeping submissive and well-drilled soldiers. the same process took place all through the country on the land of secular and ecclesiastical lords. they all preferred taking money which is so readily spent and so easy to keep, which may transform itself equally well into gorgeous pageants and into capital for carrying on work, instead of exacting old-fashioned unwieldly ploughings and reapings or equally clumsy rents in kind. on the other hand, the peasants were equally anxious to get out of the customary system: through its organisation of labour it involved necessarily many annoyances, petty exactions and coercion; it involved a great waste of time and energy. the landlord gained by the change, because he received an economic instrument of greater efficiency; the peasant gained because he got rid of personal subjection to control; both gained; for a whole system of administration, a whole class of administrators, stewards, bailiffs, reeves, a whole mass of cumbrous accounts and archaic procedure became unnecessary. in reality the peasantry gained much more than the lord. just because money rents displaced the ploughings and reapings very gradually, they assumed the most important characteristic of these latter--their customary uniformity; tradition kept them at a certain level which it was very difficult to disturb, even when the interests of the lord and the conditions of the time had altered a great deal. prices fluctuate and rise gradually, the buying strength of money gets lowered little by little, but customary rents remain much the same as they were before. thus in process of time the balance gets altered for the benefit of the rent payer. i do not mean to say that such views and such facts were in full operation from the very beginning: one of the chief reasons for holding the glastonbury inquest of was the wish to ascertain whether the rents actually corresponded to the value of the plots, and to make the necessary modifications. but such fresh assessments were very rare, it was difficult to carry them into practice, and the general tendency was distinctly towards a stability of customary rents. [social results of commutation.] the whole process has a social and not merely an economical meaning. commutation, even when it was restricted to agricultural services, certainly tended to weaken the hold of the lord on his men. personal interference was excluded by it, the manorial relation resolved itself into a practice of paying certain dues once or several times a year; the peasant ceased to be a tool in the husbandry arrangements of his master. the change made itself especially felt when the commutation took place in regard to entire villages[ ]: the new arrangement developed into the custom of a locality, and gathered strength by the number of individuals concerned in it, and the cohesion of the group. in order not to lose all power in such a township, the lords usually reserved some cases for special interference and stipulated that some services should still be rendered in kind[ ]. again, the conversion of services into rents did not always present itself merely in the form just described: it was not always effected by the mere will of the lord, without any legally binding acts. commutation gave rise to actual agreements which came more or less under the notice of the law. we constantly find in the hundred rolls and in the cartularies that villains are holding land by written covenant. in this case they always pay rent. sometimes a villain, or a whole township, gets emancipated from certain duties by charter[ ], and the infringement of such an instrument would have given the villains a standing ground for pleading against the lord. it happened from time to time that bondmen took advantage of such deeds to claim their liberty, and to prove that the lord had entered into agreement with them as with free people[ ]. to prevent such misconstruction the lord very often guards expressly against it, and inserts a provision to say that the agreement is not to be construed against his rights and in favour of personal freedom[ ]. [molmen.] [improvement of condition.] the influence of commutation makes itself felt in the growth of a number of social groups which arrange themselves between the free and the servile tenantry without fitting exactly into either class. our manorial authorities often mention mol-land and mol-men[ ]. the description of their obligations always points one way: they are rent-paying tenants who may be bound to some extra work, but who are very definitely distinguished from the 'custumarii,' the great mass of peasants who render labour services[ ]. kentish documents use 'mala' or 'mal' for a particular species of rent, and explain the term as a payment in commutation of servile customs[ ]. in this sense it is sometimes opposed to _gafol_ or _gable_--the old saxon rent in money or in kind, this last being considered as having been laid on the holding from all time, and not as the result of a commutation[ ]. etymologically there is reason to believe that the term _mal_ is of danish origin[ ], and the meaning has been kept in practice by the scotch dialect[ ]. what immediately concerns our present purpose is, that the word mal-men or mol-men is commonly used in the feudal period for villains who have been released from most of their services by the lord on condition of paying certain rents. legally they ought to remain in their former condition, because no formal emancipation has taken place; but the economical change reacts on their status, and the manorial documents show clearly how the whole class gradually gathers importance and obtains a firmer footing than was strictly consistent with its servile origin[ ]. in the bury st. edmund's case just quoted in a foot-note the fundamental principle of servility is stated emphatically, but the statement was occasioned by gradual encroachments on the part of the molmen, who were evidently becoming hardly distinguishable from freeholders[ ]. and in many cartularies we find these molmen actually enumerated with the freeholders, a very striking fact, because the clear interest of the lord was to keep the two classes asunder, and the process of making a manorial 'extent' and classifying the tenants must have been under his control. as a matter of fact, the village juries were independent enough to make their presentments more in accordance with custom than in accordance with the lord's interests. in a transcript of a register of the priory of eye in suffolk, which seems to have been compiled at the time of edward i, the molmen are distinguished from villains in a very remarkable manner as regards the rule of inheritance, borough english being considered as the servile mode, while primogeniture is restricted to those holding mol-land[ ]. borough english was very widely held in medieval england to imply servile occupation of land[ ], and the privilege enjoyed by molmen in this case shows that they were actually rising above the general condition of villainage, the economical peculiarities of their position affording a stepping-stone, as it were, towards the improvement of their legal status. it is especially to be noticed, that in this instance we have to reckon with a material difference of custom, and not merely with a vacillating terminology or a general and indefinite improvement in position. an interesting attempt at an accurate classification of this and other kinds of tenantry is displayed by an inquisition of edward i preserved at the record office. the following subdivisions are enumerated therein:-- liberi tenentes per cartam. liberi tenentes qui vocantur fresokemen. sokemanni qui vocantur molmen. custumarii qui vocantur werkmen. consuetudinarii tenentes acras terre. consuetudinarii tenentes acras terre[ ]. the difference between molmen and workmen lies, of course, in the fact that the first pay rent and the second perform week-work. but what is more, the molmen are ranged among the sokemen, and this supposes a certainty of tenure and service not enjoyed by the villains. in this way the intermediate class, though of servile origin, connects itself with the free tenantry. [censuarii and gavelmen.] the same group appears in manorial documents under the name of _censuarii_[ ]. both terms interchange, and we find the same fluctuation between free and servile condition in regard to the _censuarii_ as in regard to _molmen_. the thirteenth-century extent of the manor of broughton, belonging to the abbey of ramsey in huntingdonshire, when compared with domesday, shows clearly the origin of the group and the progress which the peasantry had made in two hundred years. the domesday description mentions ten sokemen and twenty villains; the thirteenth-century cartulary speaks in one place of _liberi_ and _villani_, sets out the services due from the latter, but says that the abbot can 'ponere omnia opera ad censum;' while in another place it speaks as though the whole were held by _liberi et censuarii_[ ]. a similar condition is indicated by the term _gavelmanni_, which occurs sometimes, although not so often as either of the designations just mentioned[ ]. it comes evidently from _gafol_ or _gafel_, and applies to rent-paying people. it ought to be noticed, however, that if we follow the distinction suggested by the kentish documents, there would be an important difference in the meaning. rent need not always appear as a result of commutation; it may be an original incident of the tenure, and there are facts enough to show that lands were held by rent in opposition to service even in early saxon time. should _mal_ be taken as a commutation rent, and _gafol_ strictly in the sense of original rent, the gavelmen would present an interesting variation of social grouping as the progeny of ancient rent-holding peasantry. i do not think, however, that we are entitled to press terminological distinctions so closely in the feudal period, and i should never enter a protest against the assumption that most gavelmen were distinguished from molmen only by name, and in fact originated in the same process of commutation. but, granting this, we have to grant something else. _vice versa_, it is very probable indeed that the groups of _censuarii_ and _molmen_ are not to be taken exclusively as the outcome of commutation. if _gafol_ gets to be rather indistinct in its meaning, so does _mal_, and as to _census_, there is nothing to show whether it arises in consequence of commutation or of original agreement. and so the kentish distinction, even if not carried out systematically, opens a prospect which may modify considerably the characteristic of the status on which i have been insisting till now. commutation was undoubtedly a most powerful agency in the process of emancipation; our authorities are very ready to supply us with material in regard to its working, and i do not think that anybody will dispute the intimate connexion between the social divisions under discussion and the transition from labour services to rent. yet a money rent need not be in every case the result of a commutation of labour services, although such may be its origin in most cases. we have at least to admit the possibility and probability of another pedigree of rent-paying peasants. they may come from an old stock of people whose immemorial custom has been to pay rent in money or in kind, and who have always remained more or less _free_ from base labour. this we should have to consider as at all events a theoretic possibility, even if we restricted our study to the terminology connected with rent; though it would hardly give sufficient footing for definite conclusions. but there are groups among the peasantry whose history is less doubtful. [hundredarii.] there are at the british museum two most curious surveys of the possessions of ely minster, one drawn up in and the other in [ ]. in some of the manors described we find tenants called 'hundredarii.' their duties vary a good deal, but the peculiarity which groups them into a special division and gives them their name is the suit of court they owe to the hundred[ ]. and although the name does not occur often even in the ely surveys, and is very rare indeed elsewhere[ ], the thing is quite common. the village has to be represented in the hundred court either by the lord of the manor, or by the steward, or by the reeve, the priest, and four men[ ]. the same people have to attend the county court and to meet the king's justices when they are holding an eyre[ ]. it is not a necessary consequence, of course, that certain particular holdings should be burdened with the special duty of sending representatives to these meetings, but it is quite in keeping with the general tendency of the time that it should be so; and indeed one finds everywhere that some of the tenants, even if not called 'hundredarii,' are singled out from the rest to 'defend' the township at hundred and shire moots[ ]. they are exempted from other services in regard to this 'external,' this 'forinsec' duty, which was considered as by no means a light one[ ]. [hundredors as villains.] and now as to their status. the obligation to send the reeve and four men is enforced all through england, and for this reason it is _prima facie_ impossible that it should be performed everywhere by freeholders in _the usual sense of the word_. there can be no doubt that in many, if not in most, places the feudal organisation of society afforded little room for a considerable class of freeholding peasants or yeomen[ ]. if every township in the realm had to attend particular judicial meetings, to perform service for the king, by means of five representatives, these could not but be selected largely from among the villain class. the part played by these representatives in the courts was entirely in keeping with their subordinate position. they were not reckoned among the 'free and lawful' men acting as judges or assessors and deciding the questions at issue. they had only to make presentments and to give testimony on oath when required to do so. the opposition is a very marked one, and speaks of itself against the assumption that the five men from the township were on an equal standing with the freeholders[ ]. again, four of these five were in many cases especially bound by their tenure to attend the meetings, and the reeve came by virtue of his office, but he is named first, and it does not seem likely that the leader should be considered as of lower degree than the followers. now the obligation to serve as reeve was taken as a mark of villainage. all these facts lead one forcibly to the conclusion that the hundredors of our documents represent the village people at large, and the villains first of all, because this class was most numerous in the village. this does not mean, of course, that they were all personally unfree: we know already, that the law of tenure was of more importance in such questions than personal status[ ]. it does not even mean that the hundredors were necessarily holding in villainage: small freeholders may have appeared among them. but the institution could not rest on the basis of legal freehold if it was to represent the great bulk of the peasantry in the townships. [hundredors as free tenants.] this seems obvious and definite enough, but our inquiry would be incomplete and misleading if it were to stop here. we have in this instance one of those curious contradictions between two well-established sets of facts which are especially precious to the investigator because they lead him while seeking their solution to inferences far beyond the material under immediate examination. in one sense the reeve and the four men, the hundredors, seem villains and not freeholders. in another they seem freeholders and not villains. their tenure by the 'sergeanty' of attending hundreds and shires ranks again and again with freehold and in opposition to base tenure[ ]. originally the four men were made to go not only with the reeve but with the priest; and if the reeve was considered in feudal times as unfree, the priest, the 'mass-thane,' was always considered as free[ ]. it is to be noticed that the attendance of the priest fell into abeyance in process of time, but that it was not less necessary for the representation of the township according to the ancient constitution of the hundred than the attendance of the reeve. this last fact is of great importance because it excludes an explanation which would otherwise look plausible enough. does it not seem at first sight that the case of the hundredors is simply a case of exemption and exactly on a parallel with the commutation of servile obligations for money? we have seen that villains discharged from the most onerous and opprobrious duties of their class rise at once in social standing, and mix up with the smaller freeholders. hundredors are relieved from these same base services in order that they may perform their special work, and this may possibly be taken as the origin of their freedom. should we look at the facts in this way, the classification of this class of tenants as free would proceed from a lax use of the term and their privileges would have to be regarded as an innovation. the presence of the priest warns us that we have to reckon in the case with a survival, with an element of tradition and not of mere innovation. and it is not only the presence of the priest that points this way. [the hundred courts.] at first sight the line seems drawn very sharply between the reeve and the four men on the one hand, and the freehold suitors of the hundred court on the other: while these last have to judge and to decide, the first only make presentments. but the distinction, though very clear in later times, is by no means to be relied upon even in the thirteenth century. in britton's account of the sheriff's tourn the two bodies, though provided with different functions, are taken as constituted from the same class: 'the free landowners of the hundred are summoned and the first step is to cause twelve _of them_ to swear that they will make presentment according to the articles. afterwards the _rest_ shall be sworn by dozens and by townships, that they will make lawful presentment to the _first twelve jurors_[ ].' the wording of the passage certainly leads one to suppose that both sets of jurors are taken from the freeholder class, and the difference only lies in the fact that some are selected to act as individuals, and the rest to do so by representation. the assize of clarendon, which mr. maitland has shown to be at the origin of the sheriff's tourn[ ], will only strengthen the inference that the two bodies were intended to belong to the same free class: the inquiry, says the assize, shall be made by twelve of the most lawful men of the county, and by four of the most lawful men of every township. what is there in these words to show that the two sets were to be taken from different classes? and does not the expression 'lawful,' extending to both sets, point to people who are 'worthy of their law,' that is to free men? the assize of clarendon and the constitution of the tourn are especially interesting because they give a new bearing to an old institution: both divisions of the population which they have in view appear in the ordinary hundred and county court, and in the 'law day' of the 'great' hundred instituted for the view of frankpledge. in the ordinary court the lord, his steward, and the reeve, priest, and four men, interchange, according to the clear statement of leg. henrici i. c. , that is to say, the vill is to be represented either by the lord, or by his steward, or again by the six men just mentioned. they are not called out as representing different classes and interests, but as representing the same territorial unity. if the landlord does not attend personally or by his personal representative, the steward, then six men from the township attend in his place. the question arises naturally, where is one to look for the small freeholders in the enactment? however much we may restrict their probable number, their existence cannot be simply denied or disregarded. it does not seem likely that they were treated as landlords (terrarum domini), and one can hardly escape the inference that they are included in the population of the township, which appears through the medium of the six hundredors: another hint that the class division underlying the whole structure did not coincide with the feudal opposition between freeholder and villain. again, in the great hundred for the view of frankpledge, which is distinguished from the ordinary hundred by fuller attendance, and not by any fundamental difference in constitution, all men are to appear who are 'free and worthy of their wer and their wite[ ]:' this expression seems an equivalent to the 'free and lawful' men of other cases, and at the same time it includes distinctly the great bulk of the villain population as personally free. [results as to hundredors.] i have not been able, in the present instance, to keep clear of the evidence belonging to the intermediate period between the saxon and the feudal arrangements of society; this deviation from the general rule, according to which such evidence is to be discussed separately and in connexion with the conquest, was unavoidable in our case, because it is only in the light of the laws of henry i that some important feudal facts can be understood. in a trial as to suit of court between the abbot of glastonbury and two lay lords, the defendants plead that they are bound to appear at the abbot's hundred court personally or by attorney only on the two law-days, whereas for the judgment of thieves their freemen, their reeves and ministers have to attend in order to take part in the judgment[ ]. it is clearly a case of substitution, like the one mentioned in leg. henrici, c. , and the point is, that the representatives of the fee are designated as reeves and freemen. altogether the two contradictory aspects in which the hundredors are made to appear can hardly be explained otherwise than on the assumption of a fluctuation between the conception of the hundred as of an assembly of freemen, and its treatment under the influence of feudal notions as to social divisions. in one sense the hundredors are villains: they come from the vill, represent the bulk of its population, which consists of villains, and are gradually put on a different footing from the greater people present. in another sense they are free men, and even treated as freeholders, because they form part of a communal institution intended to include the free class and to exclude the servile class[ ]. if society had been arranged consistently on the feudal basis, there would have been no room for the representation of the vill instead of the manor, for the representation of the vill now by the lord and now by a deputation of peasants, for a terminology which appears to confuse or else to neglect the distinction between free and servile holding. as it is, the intricate constitution of the hundred, although largely modified and differentiated by later law, although cut up as it were by the feudal principle of territorial service, looks still in the main as an organisation based on the freedom of the mass of the people[ ]. the free people had to attend virtually, if not actually, and a series of contradictions sprang up from the attempt to apply this principle to a legal state which had almost eliminated the notion of freedom in its treatment of peasantry on villain land. as in these feudal relations all stress lay on tenure and not on status, the manorial documents seem to raise the hundredors almost or quite to the rank of freeholders, although in strict law they may have been villains. the net results seem to be: ( ) that the administrative constitution of hundred and county is derived from a social system which did not recognise the feudal opposition between freeholder and villain; ( ) that we must look upon feudal villainage as representing to a large extent a population originally free; ( ) that this original freedom was not simply one of personal status, but actually influenced the conception of tenure even in later days[ ]. [socmen.] if in manorial documents these 'hundredors' occupy as it were an ambiguous position, the same may be said of another and a very important class--the _socmen_. the socage tenure has had a very curious terminological history. everybody knows that it appears in domesday as a local peculiarity of danish districts; in modern law it came to be a general name for any freehold that was neither knight service, frankalmoign, nor grand sergeanty. it became in fact the normal and typical free tenure, and as such it was treated by the act of charles ii abolishing military tenure. long before this--even in the thirteenth century--'free socage' was the name of a freehold tenure fully protected by the king's courts. very great men occasionally held land in free socage (per liberum socagium); they even held of the king in chief by free socage, and the tenure had many advantages, since it was free from the burdensome incidents of wardship and marriage. but no one would have called these men socmen (sokemanni, socomanni). on the other hand, the socmen, free socmen, were to be found all over england and not in the danish country only. it is of the tenure of these socmen that we have to speak now. in a trial of edward the first's time the counsel distinguish three manners of persons--free men, villains, and socmen. these last are said to occupy an intermediate position, because they are as _statu liberi_ in regard to their lords[ ]. the passage occurs in a case relating to ancient demesne, but the statement is made quite broadly, and the term 'socmen' is used without any qualification. as there were many socmen outside the king's possessions on the land of lay and spiritual lords, such usage may be taken as proof that the position of all these people was more or less identical. and so in our inquiry as to the characteristic traits of socage generally we may start from the ancient demesne. further, we see that the socman's tenure is distinguished from free tenure, socmen from freeholders. in the law books of the time the free but non-military tenure has to be characterised not merely as socage, but as _free_ socage: this fact will give us a second clue in analysing the condition. [charter and communal testimony.] there are two leading features in ancient demesne socage: it is certain in tenure and service, and it is held by the custom of the manor and not by feoffment. the certainty of the tenure severs the class of socmen from the villains, and is to be found as well in the case of socmen outside the crown demesne as in the case of socmen on the crown demesne. what is to be said of the second trait? it seems especially worthy of notice, because it cannot be said to belong to freehold generally. as to its existence on ancient demesne land i have already had occasion to speak, and it can hardly be doubted. i will just recall to the reader's mind the fundamental facts: that the 'little writ of right' was to insure justice according to the custom of the manor, and that our documents distinguish in as many words between the customary admittance of the socman and the feoffment of the freeholder. this means, that in case of litigation the one had warranty and charter to lean upon, while the other had to appeal to the communal testimony of his fellow-suitors in the court of the manor, and in later days to an entry on the court-roll. freehold appeared as chartered land (book-land), while socage was in truth copyhold secured by communal custom[ ]. the necessary surrender and admittance was performed in open court, and the presence of fellow-tenants was as much a requisite of it as the action of the lord or his steward. if we look now to the socmen outside the ancient demesne, we shall find their condition so closely similar, that the documents constantly confuse them with the tenants of the ancient demesne. the free men under soke in the east of england have best kept the tradition, but even their right is often treated as a mere variation of ancient demesne[ ]. for this reason we should be fairly entitled, i think, to extend to them the notion of customary freehold. there is direct evidence in this respect. in extents of manors socmen are often distinguished from freeholders[ ]. true, as already said, that in the king's courts 'free socage' came to be regarded as one of the freehold tenures, and as such (when not on the ancient demesne) was protected by the same actions which protected knight-service and frankalmoign; but we have only here another proof of the imperfect harmony between legal theory and manorial administration. what serves in the manorial documents to distinguish the 'socman' from the 'freeholder' is the fact that the former holds without charter[ ]. we are naturally led to consider him as holding, at least originally, by ancient custom and communal testimony in the same sense as the socmen of ancient demesne. in most cases only the negative side, namely the absence of a charter, is mentioned, but there are entries which disclose the positive side, and speak of tenants or even free tenants holding without charter by ancient tenure[ ]. it is to be added, that we find such people in central and western counties, that is outside of the danelagh. in domesday their predecessors were entered as villains, but their tenure is nevertheless not only a free but an ancient one. [bond socmen.] it must also be added that it is not only free socmen that one finds outside the ancient demesne; bond socmen are mentioned as well. now this seems strange at first sight, because the usual and settled terminology treats villain socage as a peculiarity of ancient demesne. my notion is that it is not 'bond' that qualifies the 'socmen,' but _vice versa_. to put it in a different way, the documents had to name a class which held by certain custom, although by base service, and they added the 'socman' to qualify the 'bond' or the 'villain.' two cases from the hundred rolls may serve as an illustration of this not unimportant point. the vill of soham in cambridgeshire[ ] was owned in partly by the king, partly by the earl marshall, and partly by the bishop of ely. there are two socmen holding from the king thirty acres each, fourteen socmen holding fifteen acres each, and twenty-six 'toftarii' possessed of small plots. no villains are mentioned, but the socmen are designated on the margin in a more definite way as bond socmen. the manor had been in the possession of the crown at the time of the conquest, and it is to be noticed, to begin with, that the chief population of the part which remained with the king appears as socmen--a good illustration of the principle that the special status did not originate when the manor was granted out by the crown. the sixteen peasants first mentioned are holders of virgates and half-virgates, and form as it were the original stock of the tenantry--it would be impossible to regard them as a later adjunct to the village. their status is not a result of commutation--they are still performing agricultural work, and therefore _bond_ socmen. the domesday survey speaks only of villains and 'bordarii,' and it is quite clear that it calls villains the predecessors of the 'bond socmen' of the hundred rolls. and now let us examine the portion of the manor which had got into the hands of the earl marshall. we find there several _free socmen_ whose holdings are quite irregular in size: they pay rent, and are exempted from agricultural work. then come five _bond socmen_, holding thirty acres each, and nine _bonds_ holding fifteen acres each: all these perform the same services as the corresponding people of the king's portion. and lastly come twenty-two tofters. two facts are especially worth notice: the free socman appears by the side of the bond socman, and the opposition between them reduces itself to a difference between rentpaying people and labourers; the holdings of the rentpayers are broken up into irregular plots, while the labourers still remain bound up by the system of equalised portions. the second significant fact is, that the term 'socman,' which has evidently to be applied to the whole population except the tofters, has dropped out in regard to the half-virgate tenants of the earl marshall. if we had only the fragment relating to his nine bondmen, we might conclude perhaps that there was no certain tenure in the manor. the inference would have been false, but a good many inferences as to the social standing of the peasantry are based on no better foundation. in any case the most important part of the population of soham, as far as it belonged to the king and to the earl, consisted of socmen who at the same time are called bondmen, and were called villains in domesday. soham is ancient demesne. let us now take crowmarsh in oxfordshire[ ]. two-thirds of it belonged to the earl of oxford in , and one-third to the lord de valence. at the time of the domesday survey it was in the hands of walter giffard, and therefore not ancient demesne. on the land of the earl of oxford we find in nine _servi socomanni_ holding six virgates, there are a few cotters and a few free tenants besides; the remaining third is occupied by two 'tenentes per servicium socomannorum,' and by a certain number of cotters and free tenants. it can hardly be doubted that the opposition between _servi_ and _liberi_ is not based on the certainty of the tenure; the socmen hold as securely as the free tenants, but they are labourers, while these latter are exempted from the agricultural work of the village. the terms are used in the same way as the 'terra libera' and the 'terra operabilis' of the glastonbury inquest. [servile duties of socmen and freeholders.] i need not say that the socmen of ancient demesne, privileged villains as bracton calls them, are sometimes subjected to very burdensome services and duties. merchet is very common among them; it even happens that they have to fine for it at the will of the lord[ ]. but all the incidents of base tenure are to be found also outside the ancient demesne in connexion with the class under discussion. if we take the merchet we shall find that at magna tywa, oxon[ ], it is customary to give the steward a sword and four pence for licence to give away one's daughter within twenty miles in the neighbourhood; in haneberg, oxon[ ], a spear and four pence are given in payment. the socmen of peterborough abbey[ ] have to pay five shillings and four pence under the name of merchet as a fine for incontinence (the legerwite properly so-called), and there is besides a marriage payment (redempcio sanguinis) equal for socmen and villains. the same payment occurs in the land of spalding priory, lincoln[ ]. the same fact strikes us in regard to tallage and aids, i.e. the taxes which the lord had a right to raise from his subjects. in stoke basset, oxon[ ], the socmen are placed in this respect on the same footing with the villains. the spalding cartulary adds that their wainage is safe in any case[ ]. on the lands of this priory the classes of the peasantry are generally very near to each other, so that incidents and terms often get confused[ ]. and not only socmen have to bear such impositions: we find them constantly in all shapes and gradations in connection with free tenantry. the small freeholder often takes part in rural work[ ], sometimes he has to act as a kind of overseer[ ], and in any case this base labour would not degrade him from his position[ ]. already in bracton's day the learned thought that the term 'socage' was etymologically connected with the duty of ploughing:--a curious proof both of the rapidity with which past history had become unintelligible, and of the perfect compatibility of socage with labour services. merchet, heriot, and tallage occur even more often[ ]. all such exactions testify to the fact that the conceptions of feudal law as to the servile character of particular services and payments were in a great measure artificial. tallage, even arbitrary tallage, was but a tax after all, and did not detract from personal freedom or free tenure in this sense. then heriot often occurs among free people in the old saxon form of a surrender of horse and arms as well as in that of the best ox[ ]. merchet is especially interesting as illustrating the fusion of different duties into one. it is the base payment _par excellence_, and often used in manorial documents as a means to draw the line between free and unfree men[ ]. nevertheless free tenants are very often found to pay it[ ]. in most cases they have only to fine in the case when their daughters leave the manor, and this, of course, has nothing degrading in it: the payment is made because the lord loses all claim as to the progeny of the woman who has left his dominion. but there is evidence besides to show that free tenants had often to pay in such a case to the hundred, and the lords had not always succeeded in dispossessing the hundred[ ]. such a fine probably developed out of a payment to the tribe or to a territorial community in the case when a woman severed herself from it. it had nothing servile in its origin. and still, if the documents had not casually mentioned these instances, we should have been left without direct evidence as to a difference of origin in regard to merchet or gersum. is it not fair to ask, whether the merchet of the villains themselves may not in some instances have come from a customary recompense paid originally to the community of the township into the rights of which the lord has entered? however this may be, one fact can certainly not be disputed: men entirely free in status and tenure were sometimes subjected to an exaction which both public opinion and legal theory considered as a badge of servitude. [feudal oppression in the direction of servitude.] the passage from one great class of society to the other was rendered easy in this way by the variety of combinations in which the distinguishing features of both classes appear. no wonder that we hear constantly of oppression which tended to substitute one form of subjection for another, and thus to lower the social standing of intermediate groups. the free socmen of swaffham prior, in cambridgeshire[ ], complain that they are made to bind sheaves while they did not do it before; they used to pay thirty-two pence for licence to marry a daughter, and to give a twofold rent on entering an inheritance, and now the lord fines them at will. one of the tenants of the bishop of lincoln[ ] declares to the hundred roll commissioners that his ancestors were free socmen and did service to the king for forty days at their own cost, whereas now the bishop has appropriated the royal rights. the same grievances come from ancient demesne people. in weston, bedfordshire[ ], the tenantry complain of new exactions on the part of the lord; in king's ripton[ ], hunts, merchet is introduced which was never paid before; in collecot, berks[ ], the lord has simply dispossessed the socmen. in some instances the claims of the peasantry may have been exaggerated, but i think that in all probability the chances were rather against the subjected people than for them, and their grievances are represented in our documents rather less than fairly[ ]. [law of kent.] in speaking of those classes of peasants who were by no means treated as serfs to be exploited at will, i must not omit to mention one group which appears, not as a horizontal layer spread over england, but in the vertical cut, as it were. i mean the kentish gavelkind tenantry. the domesday survey speaks of the population of this county quite in the same way as of the people of neighbouring shires; villains form the great bulk of it, socmen are not even mentioned, and to judge by such indications, we have here plain serfdom occupying the whole territory of the county. on the other hand the law of the thirteenth century puts the social standing of kentish men in the most decided opposition to that of the surrounding people. the 'consuetudines kanciae,' the well-known list of special kentish customs[ ], is reported to have been drawn up during an eyre of john of berwick in the twenty-first year of edward i. be its origin what it may, we come across several of its rules at much earlier times[ ], and they are always considered of immemorial custom. the basis of kentish social law is the assumption that every man born in the county is entitled to be considered as personally free, and the common law courts recognised the notion to the extent of admitting the assertion that a person was born in kent as a reply against the 'exceptio villenagii.' the contrast with other counties did not stop there. the law of tenure was as different as the law of status. it would be needless to enumerate all the points set forth as kentish custom. they show conclusively that the lord was anything but omnipotent in this county. interference with the proprietary right of the peasantry is not even thought of; the tenants may even alienate their plots freely; the lord can only claim the accustomed rents and services; if the tenants are negligent in performing work or making payments, distress and forfeiture are awarded by the manorial court according to carefully graduated forms; wardship in case of minority goes to the kin and not to the lord, and heiresses cannot be forced to marry against their wish. as a case of independence the kentish custom is quite complete, and manorial documents show on every page that it was anything but a dead letter. the rochester custumal, the black book of st. augustine, the customs of the kentish possessions of battle abbey, the registers of christ church, canterbury, all agree in showing the kentish tenantry as a privileged one, both as to the quantity and as to the quality of their services[ ]. and so the great bulk of the kentish peasantry actually appears in the same general position as the free socmen of other counties, and sometimes they are even called by this name[ ]. what is more, the law of kent thus favourable to the peasantry connects itself distinctly with the ancient customs of saxon ceorls: the quaint old english proverbs enrolled in it look like sayings which have kept it in the memory of generations before it was transmitted to writing. the peculiarities in the treatment of wardship, of dower, of inheritance, appear not only in opposition to the feudal treatment of all these subjects, but in close connexion with old saxon usage. it would be very wrong, however, to consider the whole population of kent as living under one law. as in the case of ancient demesne, there were different classes on kentish soil: tenants by knight-service and sergeanty on one side, villains on the other[ ]. the custom of kent holds good only for the tenantry which would have been called gavelmen in other places. it is a custom of gavelkind, of the rent-paying peasantry, the peasantry which pays _gafol_, and as such stands in opposition to the usages of those who hold their land by fork and flail[ ]. the important point is that we may lay down as certain in this case what was only put forward hypothetically in the case of molmen and gavelmen in the rest of england: the freehold quality of rent-paying land is not due to commutation and innovation alone--it proceeds from a pre-feudal classification of holdings which started from the contrast between rent and labour, and not from that between certain and uncertain tenure. again, the law of gavelkind, although not extending over the whole of kent, belongs to so important and numerous a portion of the population, that, as in the case of ancient demesne, it comes to be considered as the typical custom of the county, and attracts all other variations of local usage into its sphere of influence. the custumal published among the statutes speaks of the personal freedom of all kentish-men, although it has to concern itself specially with the gavelkind tenantry. the notion of villainage gets gradually eliminated from the soil of the province, although it was by no means absent from it in the beginning. thirteenth-century law evidently makes the contrast between kent and adjoining shires more sharp than it ought to have been, if all the varieties within the county were taken into account. but, if it was possible from the legal standpoint to draw a hard and fast line between kent on one side, sussex or essex on the other, it is quite impossible, from the historian's point of view, to grant that social condition has developed in adjoining places out of entirely different elements, without gradations and intermediate shades. is there the slightest doubt that the generalising jurisprudence of the thirteenth century went much too far in one direction, the generalising scribes of the eleventh century having gone too far in the other? domesday does not recognise any substantial difference between the state of kent and that of sussex; the courts of the thirteenth century admitted a complete diversity of custom, and neither one nor the other extreme can be taken as a true description of reality. the importance of the _custom of kent_ can hardly be overrated: it shows conclusively what a mistake it would be to accept without criticism the usual generalising statement as to the different currents of social life in mediaeval england. it will hardly be doubted moreover, that the kentish case proves that elements of freedom bequeathed by history but ignored by the domesday survey come to the fore in consequence of certain facts which remain more or less hidden from view and get recognised and protected in spite of feudalism. if so, can the silence of domesday or the absence of legal protection in the thirteenth century stand as sufficient proof against the admission of freedom as an important constitutive element in the historical process leading to feudalism? is it not more natural to infer that outside kent there were kindred elements of freedom, kindred remnants of a free social order which never got adequate recognition in the domesday terminology or left definite traces in the practice of the royal courts? [peasant freeholders.] one more subject remains to be touched upon, and it may be approached safely now that we have reviewed the several social groups on the border between freeholders and villains. it is this--to what extent can the existence of a class of freeholders among the peasantry of feudal england be maintained? it has been made a test question in the controversy between the supporters of the free and those of the servile community, and it would seem, at first sight, on good ground. stress has been laid on the fact, that such communities as are mentioned in domesday and described in later documents are (if we set aside the danish counties) almost entirely peopled by villains, that free tenants increase in number through the agency of commutation and grants of demesne land, whereas they are extremely few immediately after domesday, and that in this way there can be no talk of free village communities this side of the conquest[ ]. this view of the case may be considered as holding the field at the present moment: its chief argument has been briefly summarised by the sentence--the villains of domesday are not the predecessors in title of later freeholders[ ]. i cannot help thinking that a good deal has to be modified in this estimate of the evidence. without touching the subject in all its bearings, i may say at once that i do not see sufficient reason to follow the testimony of domesday very closely as to names of classes. if we find in a place many free tenants mentioned in the hundred roll, and none but villains in domesday, it would be wrong to infer that there were none but villains in the later sense at the time of the survey, or that all the free tenements of the hundred rolls were of later creation than the conquest. it would be especially dangerous to draw such an inference in a case where the freeholders of the thirteenth century are possessed of virgates, half-virgates, etc., and not of irregular plots of land. such cases may possibly be explained by sweeping commutation, which emancipated the entire village at one stroke, instead of making way for the freehold by the gradual enfranchisement of plot after plot. but it is not likely that all the many instances can be referred to such sweeping emancipation. in the light of kentish evidence, of free and villain socage, it is at least probable that the thirteenth-century freeholders were originally customary freeholders entered as villains in domesday, and rising to freedom again in spite of the influence of feudalism. such an assumption, even if only possible and hypothetical, would open the way for further proof and investigation on the lines of a decline of free village communities, instead of imposing a peremptory termination of the whole inquiry for the period after the conquest. if the domesday villains are in no case predecessors in title of freeholders, this fact would go a long way to establish the serfdom of the village community for all the period after the conquest, and we should have to rely only on earlier evidence to show anything else. our case would be a hard one, because the earlier evidence is scanty, scattered, obscure, and one-sided. but if the villains of domesday may be taken to include customary freeholders, then we may try to illustrate our conceptions of the early free village by traits drawn from the life of the later period. chapter vii. the peasantry of the feudal age. conclusions. [legal and manorial records.] i have divided my analysis of the condition of the feudal peasantry into two parts according to a principle forcibly suggested, as i think, by the material at hand. the records of trials in the king's court, and the doctrines of lawyers based on them, cannot be treated in the same way as the surveys compiled for the use of manorial administration. there is a marked difference between the two sets of documents as to method and point of view. in the case of legal records a method of dialectic examination could be followed. legal rules are always more or less connected between themselves, and the investigator has to find out, first, from the application of what principles they flow, and to find out, secondly, whether fundamental contradictions disclose a fusion of heterogeneous elements. the study of manorial documents had to proceed by way of classification, to establish in what broad classes the local variations of terms and notions arrange themselves, and what variations of daily life these groups or classes represent. it is not strange, of course, that things should assume a somewhat different aspect according to the point of view from which they are described. legal classification need not go into details which may be very important for purposes of manorial administration; neither the size of the holdings nor the complex variations of services have to be looked to in cases where the law of status is concerned. still it may be taken for granted that the distinctions and rules followed by the courts had to conform in a general way with matter-of-fact conditions. lawyers naturally disregarded minute subdivisions, but their broad classes were not invented at fancy; they took them from life as they did the few traits they chose from among many as tests for the purpose of laying down clear and convenient rules. a general conformity is apparent in every point. at the same time there is undoubtedly an opposition between the _curial_ (if i may use that term) and the _manorial_ treatment of status and tenure, which does not resolve itself into a difference between broad principle and details. just because the lawyer has to keep to distinct rules, he will often be behind his age and sometimes in advance of it. his doctrine, once established, is slow to follow the fluctuations of husbandry and politics: while in both departments new facts are ever cropping up and gathering strength, which have to fight their way against the rigidity of jurisprudence before they are accepted by it. on the other hand, notions of old standing and tenacious tradition cannot be put away at once, so soon as some new departure has been taken by jurists; and even when they die out at common law such notions persist in local habits and practical life. for these reasons, which hold good more or less everywhere, and are especially conspicuous in mediaeval history, the general relation between legal and manorial documents becomes especially important. it will widen and strengthen conclusions drawn from the analysis of legal theory. we may be sure to find in thirteenth-century documents of practical administration the foundations of a system which prevailed at law in the fifteenth. and what is much more interesting, we may be sure to find in local customaries the traces of a system which had its day long before the thirteenth century, but was still lingering in broken remains. [the will of the lord and the custom of the manor.] bracton defines villainage as a condition of men who do not know in the evening what work and how much they will have to perform next morning. the corresponding tenure is entirely precarious and uncertain at law. but these fundamental positions of legal doctrine we find opposed in daily life to the all-controlling rule of custom. the peasant knows exactly on what days he has to appear personally or by representative at ploughings and reapings, how many loads he is bound to carry, and how many eggs he is expected to bring at easter[ ]; in most cases he knows also what will be required from him when he inherits from his father or marries his daughter. this customary arrangement of duties does not find any expression in common law, and _vice versa_ the rule of common law dwindles down in daily life to a definition of power which may be exercised in exceptional cases. the opposition between our two sets of records is evidently connected in this case with their different way of treating facts. [movement towards free contract and money rents.] manorial extents and inquests give in themselves only a one-sided picture of mediaeval village life, because they describe it only from the point of view of the holding: people who do not own land are very seldom noticed, and among the population settled on the land only those persons are named who 'defend' the tenement in regard to the lord. only the chief of the household appears; this is a matter of course. he may have many or few children, many or few women engaged on his plot: the extent will not make any difference in the description of the tenement and of its services. but although very incomplete in this important respect, manorial records allow us many a glimpse at the process which was preparing a great change in the law. hired labourers are frequently mentioned in stewards' accounts, and the 'undersette' and 'levingmen' and 'anelipemen[ ]' of the extents correspond evidently to this fluctuating population of rural workmen and squatters gathering behind the screen of recognised peasant holders. the very foundation of the mediaeval system, its organisation of work according to equalised holdings and around a manorial centre, is in course of time undermined by the process of commutation. villains are released from ploughings and reapings, from carriage-duties and boon work by paying certain rents; they bargain with the lord for a surrender of his right of arbitrary taxation and arbitrary amercement; they take leases of houses, arable and meadows. this important movement is directly noticed by the law in so far as it takes the shape of an increase in the number of freeholders and of freehold tenements; charters and instruments of conveyance may be concerned with it. but the process is chiefly apparent in a standing contradiction with the law. legally an arrangement with a villain either ought not to bind the lord or else ought to destroy his power. even in law books, however, the intermediate form of a binding covenant with the villain emerges, as we have seen, in opposition to the consistent theory. in practice the villains are constantly found possessed of 'soclands,' 'forlands,' and freeholds. the passage from obligatory labour to proprietary rights is effected in this way without any sudden emancipation, by the gradual accumulation of facts which are not strictly legal and at the same time tend to become legal. [emancipation.] again, the royal courts do not know anything about 'molmen,' 'gavelmen,' or 'censuarii,' they keep to the plain distinction between free and bond. nevertheless, all these groups exist in practice, and are constantly growing in consequence of commutation. the whole law of status gets transformed by their growth as the law of tenure gets transformed by the growth of leases. molmen, though treated as villains by royal courts, are already recognised as more 'free' than the villains by manorial juries. the existence of such groups testifies to something more than a precarious passage from service to rent, namely to a change from servile subjection to a status closely resembling that of peasant freeholders, and actually leading up to it. in one word, our manorial records give ample notice of the growth of a system based on free contract and not on customary labour. but the old forms of tenure and service are still existent in law, and the contradiction involved in this fact is not merely a technical one: it lies at the root of the revolutionary movement at the close of the fourteenth century. in this manner facts were slowly paving the way towards a modification of the law. but now, turning from what is in the future, to what is in the past, let us try to collect those indications which throw light on the condition of things preceding feudal law and organisation. [contrast between labour and rent.] the one-sided conception of feudal law builds up the entire structure of social divisions on the principle of the lord's will. custom, however sacred, is not equivalent to actionable right, and a person who has nothing but custom to lean upon is supposed to be at the will and mercy of his lord and of base or servile condition. but we find even in the domain of legal doctrine other notions less convenient for the purpose of classification, and more adapted to the practice of daily life. servile persons and servile land are known from the nature of the services to which they are subject. this test is applied in two directions: ( ) regular rural work, 'with pitch-fork and flail,' is considered servile; and this would exclude the payment of rents and occasional help in the performance of agricultural labour; ( ) certain duties are singled out as marking servitude because they imply the idea of one person being owned by another, and this would exclude subjection derived from the possession of land, however burdensome and arbitrary such subjection might be. turning next to manorial records, we find these abortive features of feudal law resting on a very broad basis. only that land is considered servile which owes labour, if it renders nothing but rent it is termed free. we have here no mere commutation: the notion is an old one, and rather driven back by later law than emerging from it. it is natural enough that the holder of a plot is considered free if his relations with the lord are restricted to occasional appearances at court, occasional fines, and the payment of certain rents two or three times a year. it is natural enough that the holder of another plot should be treated as a serf because he is bound to perform work which is fitted as a part into the arrangement of his lord's husbandry, and constantly brought under the control and the coercive power of the steward. this matter-of-fact contrast comes naturally to the fore in documents which are drawn up as descriptions of daily transactions and not as evidence for a lawsuit. but the terms 'free' and 'servile' are not used lightly even in such documents. we may be sure that manorial juries and bailiffs would not have been allowed to displace at their pleasure terminological distinctions which might lead people to alter their legal position. the double sense of these terms cannot be taken as arranging society under the same two categories and yet in two entirely different ways: it must be construed as implying the two sides of one and the same thing, the substance in manorial records and the formal distinction in legal records. that is to say, when the test of legal protection was applied, the people who had to perform labour were deprived of it and designated as holding in villainage, and to the people who paid rent protection was granted and they were considered as holding freely. for this very reason the process of commutation creating mol-land actually led to an increase in the number of free tenancies[ ]. [personal subjection.] the courts made some attempts to utilise personal subjection as a distinctive feature of born villains. if it had been possible to follow out the principle, we should have been able to distinguish between villains proper and men of free blood holding in villainage. the attempt miscarried in practice, although the king's courts were acting in this case in conjunction with local custom and local juries. the reason of the failure is disclosed by manorial documents. merchet, the most debasing incident of personal villainage, appears so widely spread in the hundred rolls that there can be no question, at least at the close of the thirteenth century, of treating it as a sure test of personal subjection. we cannot admit even for one moment that the whole peasant population of entire counties was descended from personal slaves, as the diffusion of merchet would lead us to suppose. the appearance of the distinction is quite as characteristic as its gradual collapse. the original idea underlying it was to connect villain status with personal slavery, and it failed because the incidents of personal slavery were confused with other facts which were quite independent of it and which were expanded over a very large area instead of a very restricted one. [three tests of serfdom.] and now we have ready the several links of one chain. the three tests of serfdom applied by our documents are connected with each other by the very terms in which they are stated, and at the same time they present three consecutive stages of development. the notion of serfdom is originally confined to forms of personal subjection and to the possession of land under the bane of personal subjection: in this sense servitude is a narrow term, and the condition denoted by it is exceptional. in its second meaning it connects itself with rural labour and spreads over the whole class of peasants engaged in it. in its last and broadest sense it includes all the people and all the land not protected by the common law. we have no evidence as to the chronological landmarks between these several epochs, and it is clear that the passage from one to another was very gradual, and by no means implied the absolute disappearance of ancient terms. but it seems hardly doubtful that the movement was effected in the direction described; both the intrinsic evidence of the notions under discussion and their appearance in our documents point this way. [history of free peasantry.] this being so, we may expect to find some traces of the gradual spread of serfdom in the subdivisions of that comprehensive class called villainage. and, indeed, there are unmistakable signs of the fact that the flood was rising slowly and swamping the several groups of the peasantry which hitherto had been of very various conditions. the domesday classification will have to be discussed by itself, but it may be noticed even now that its fundamental features are the distinction between serfs and villains, and the very limited number of these first. judging by this, the bulk of the peasantry was not considered unfree. the inference is corroborated for the epoch of the early norman kings by the laws of henry i, in which the villain is still treated on the same footing as the ceorl of saxon times, is deemed 'worthy of his were and of his wite,' and is called as a free man to the hundred court, although not a landlord, 'terrarum dominus.' the hundredors of later times kept up the tradition: degraded in many ways, they were still considered as representatives of a free population. ancient demesne tenure is another proof of the same freedom in villainage; it is protected though base, and supposes independent rights on the part of the peasantry. the position of the group of socmen outside the ancient demesne points the same way: their tenure is originally nothing more and nothing less than a customary freehold or a free copyhold, if one may say so. the law of kent is constructed on this very basis: it is the law of free ceorls subjected to a certain manorial authority which has not been able to strike very deep roots in this soil. but the general current went steadily against the peasantry. the disruption of political unity at the time of the great civil war, and the systematic resumption of royal rights by henry ii, must have led to a settlement which impaired the social standing of the villain in the sense of feudal law. the immediate connexion between the lower class and the royal power could not be kept up during the troubled reign of stephen, when england all but lapsed into the political dismemberment of the neighbouring continental states. government and law were restored by henry ii, but he had to set a limit to his sphere of action in order that within that sphere he might act efficiently. the very growth of the great system of royal writs necessitated the drawing a sharp line between the people admitted to use them and those excluded from this benefit. one part of the revolution effected by the development of royal jurisdiction is very noticeable in our documents: the struggle between king and magnates as to the right of judging freeholders has left many traces, of which the history of the 'breve quod vocatur praecipe' is perhaps the most remarkable. but the victorious progress of royal jurisdiction in regard to freeholders was counterbalanced by an all but complete surrender of it in regard to villains. the celebrated tit. of william the conqueror's laws providing that the cultivators of the land are not to be subjected to new exactions, had lost its sense in the reign of henry ii, and so soon as it was settled that one class of tenants was to be protected, while another was to be unprotected in the king's court, the lawyers set themselves thinking over the problem of a definite and plain division of classes. their work in this direction bears all the marks of a fresh departure. they are wavering between the formal and the material test: instead of setting up at once the convenient doctrine that villainage is proved by stock, and that in regard to service and tenure the question is decided by their certainty or uncertainty, they try for a long time to shape conclusive rules as to the kind of services and incidents which imply villainage, and for a time distinction between rural labour and rent becomes especially important. on the whole, i think that an analysis of the legal and manorial evidence belonging to the feudal age leads forcibly to the conclusion that the general classification of society under the two heads of freeholders and villains is an artificial and a late one. a number of important groups appear between the two, and if we try to reduce them to some unity, we may say that a third class is formed by customary freeholders. another way of stating the same thing would be to say, that the feudal notion of a freehold from which the modern notion has developed must be supplemented from the point of view of the historian by a more ancient form which is hidden, as it were, inside the class distinction of villainage. by the side of the freeholder recognised by later law there stands the villain as a customary freeholder who has lost legal protection. i do not think that the problems resulting from the ambiguous position of the feudal villain can be solved better than on the supposition of this 'third estate.' second essay. the manor and the village community. chapter i. the open field system and the holdings. [structure of the manor.] my first essay has been devoted to the peasantry of feudal england in its social character. we have had to examine its classes or divisions in their relation to freedom, personal slavery, and praedial serfage. the land system was touched upon only so far as it influenced such classification, or was influenced by it. but no correct estimate of the social standing of the peasantry can stop here, or content itself with legal or administrative definitions. in no degree of society do men stand isolated, and a description of individual status alone would be thoroughly incomplete. men stand arranged in groups for economical and political co-operation, and these groups are composed according to the laws of the division and hierarchical organisation of labour, composed, that is, of heterogeneous elements, of members who have to fulfil different functions, and to occupy higher and lower positions. the normal group which forms as it were the constitutive cell of english mediaeval society is the _manor_, and we must try to make out in what way it was organised, and how it did its work in the thirteenth century, at the time of fully developed feudalism. the structure of the ordinary manor is always the same. under the headship of the lord we find two layers of population--the villains and the freeholders; and the territory occupied divides itself accordingly into demesne land[ ] and 'tributary land' (if i may use that phrase) of two different classes. the cultivation of the demesne depends to a certain extent on the work supplied by the tenants of the tributary land. rents are collected, labour supervised, and all kinds of administrative business transacted, by a set of manorial officers or servants. the entire population is grouped into a village community which centres round the manorial court or halimote, which is both council and tribunal. my investigation will necessarily conform to this typical arrangement. the _holding of the peasant_ is the natural starting-point: it will give us the clue to the whole agrarian system. next may come that part of the territory which is not occupied _in severalty_ but used _in common_. the _agrarian obligations_ with regard to the lord and the _cultivation of the demesne land_ may be taken up afterwards. the position of _privileged people_, either servants or freeholders, must be discussed by itself, as an exceptional case. and, lastly, the question will have to be put--to what extent were all these elements welded together in the _village community_, and under the sway of the _manorial court_? [field systems.] the chief features of the field-system which was in operation in england during the middle ages have been sufficiently cleared up by modern scholars, especially by nasse, thorold rogers, and seebohm, and there is no need for dwelling at length on the subject. everybody knows that the arable of an english village was commonly cultivated under a three years rotation of crops[ ]; a two-field system is also found very often[ ]; there are some instances of more complex arrangements[ ], but they are very rare, and appear late--not earlier than the fourteenth century. walter of henley's treatise on farming, which appears to belong to the first half of the thirteenth, mentions only the first two systems, and its estimate of the plough-land is based on them. in the case of a three-field rotation a hundred and eighty acres are reckoned to the plough; a hundred and sixty in a system of two courses[ ]. we find the same estimate in the chapters on husbandry and management of an estate which are inserted in the law-book known as fleta[ ]. the strips in the fields belonging to the several tenants were divided by narrow balks of turf, and when the field lay fallow, or after the harvest had been removed, the entire field was turned into a common pasture for the use of the village cattle. the whole area was protected by an inclosure while it was under crop. [inhoke.] a curious deviation is apparent in the following instance, taken from the cartulary of malmesbury. the abbey makes an exchange with a neighbour who has rights of common on some of the convent's land, and therefore does not allow of its being cultivated and inclosed (_inhoc facere_). in return for certain concessions on the part of the abbey, this neighbouring owner agrees that fallow pasture should be turned into arable on the condition that after the harvest it should return to common use, as well as the land not actually under seed. lastly comes a provision about the villains of the person entering into agreement with the abbey: if they do not want to conform to the new arrangement of cultivation, they will be admitted to their strips for the purpose of ploughing up or using the fallow[ ]. the case is interesting in two respects: it shows the intimate connexion between the construction of the inclosure (_inhoc_) and the raising of the crop; the special paragraph about the villains gives us to understand that something more than the usual rotation of crops was meant: the 'inhokare' appears in opposition either to the ordinary ploughing up of the fallow, or in a general sense to its use for pasture; it seems to indicate extra-cultivation of such land as ought to have remained uncultivated. these considerations are borne out by other documents. in a trial of edward i's time the 'inheche' is explained in as many words as the ploughing up of fallow for a crop of wheat, oats, or barley[ ]. the gloucester survey, in describing one of the manors belonging to the abbey, arranges its land into four fields (_campi_), each consisting of several parts: the first field is said to contain acres, the second , the third , the fourth acres. two-thirds of the whole are subjected to the usual modes of cultivation under a three-course system, and one-third remains for pasture. but out of this last third, acres of the first field (of acres) get inclosed and used for crop in one year, and acres of the second in another[ ]. in this way the ordinary three-course alternation becomes somewhat more complicated, and it will be hardly too bold a guess to suppose that such extra-cultivation implied some manuring of such patches as were deprived of their usual rest once in three years. in contradiction to the customary arrangement which did not require any special manuring except that which was incident to the use of arable as pasture for the cattle after the harvest, we find plots set apart for more intense cultivation[ ], and it is to be noticed that the reckoning in connexion with them does not start from the division according to three parts, but supposes a separate classification in two sections. [the 'campus.'] another fact worth noticing in the gloucester instance is the irregular distribution of acres in the 'fields,' and the division of the entire arable into four unequal parts. the husbandry is conducted on the three-course system, and still four fields are mentioned, and there is no simple relation between the number of acres which they respectively contain ( , , , ). it seems obvious that the expression 'field' (_campus_) is used here not in the ordinary sense suggested by such records as spring-field, winter-field, and the like, but in reference to the topography of the district. the whole territory under cultivation was divided into a number of squares or furlongs which lay round the village in four large groups. the alternation of crops distributed the same area into three according to a mode not described by the survey, and it looks probable at first glance that each of the 'fields' (_campi_) contained elements of all three courses. the supposition becomes a certainty, if we reflect that it gives the only possible explanation of the way in which the twofold alternation of the 'inhoc' is made to fit with the threefold rotation of crops: every year some of the land in each _campus_ had to remain in fallow, and could be inclosed or taken under 'inhoc.' had the _campus_ as a whole been reserved for one of the three courses, there would have been room for the 'inhoc' only every three years. i have gone into some details in connexion with this instance because it presents a deviation from ordinary rules, and even a deviation from the usual phraseology, and it is probable that the exceptional use of words depended on the exceptional process of farming. a new species of arable--the manured plot under 'inhoc'--came into use, and naturally disturbed the plain arrangement of the old-fashioned three courses; the lands had to be grouped anew into four sections which went under the accustomed designation of 'fields,' although they did not fit in with the 'three fields' of the old system. in most cases, however, our records use the word 'field' (_campus_) in that very sense of land under one of the 'courses,' which is out of the question in the case taken from the gloucester cartulary. the common use is especially clear when the documents want to describe the holding of a person, and mention the number of acres in each 'field,' the abbot of malmesbury, e.g., enfeoffs one robert with a virgate formerly held 'in the fields' by a., twenty-one acres in one field and twenty-one in another[ ]. the charter does not contain any description of _campi_ in the territorial sense, and it is evident that the expression 'in the fields' is meant to indicate a customary and well-known husbandry arrangement. the same meaning must be put on sentences like the following--r.a. holds a virgate consisting of forty-two acres in both fields[ ]. the question may be raised whether we have to look for 'both fields' in the winter and spring-field of the three courses rotation, or in the arable and fallow of the two courses. in the first of these eventualities, the third reserved for pasture and rest would be left out of the reckoning; it would be treated as an appurtenance of the land that was in cultivation. cases in which the portions in the several fields are unequal seem to point to the second sense[ ]. it was impossible to divide the whole territory under cultivation like a piece of paper: conformation of the soil had, of course, much to do with the shape of the furlongs and their distribution, and the courses of the husbandry could not impress themselves on it without some inequalities and stray remnants. it may happen for this reason that a man holds sixteen acres in one field and fourteen in the other. there is almost always, however, a certain correspondence between the number of acres in each field; instances of very great disparity are rare, and suppose some local and special reasons which we cannot trace. such disparities seem to point, however, to a rotation according to two courses, because the fallow of the three courses could have been left out of the reckoning only if all the parts in the fields were equal[ ]. i think that a careful inspection of the surveys from this point of view may lead to the conclusion that the two courses rotation was very extensively spread in england in the thirteenth century. [compulsory rotation of crops.] a most important feature of the mediaeval system of tillage was its compulsory character. the several tenants, even when freeholders, could not manage their plots at their own choice[ ]. the entire soil of the township formed one whole in this respect, and was subjected to the management of the entire village. the superior right of the community found expression in the fact that the fields were open to common use as pasture after the harvest, as well as in the regulation of the modes of farming and order of tillage by the township. even the lord himself had to conform to the customs and rules set up by the community, and attempts to break through them, although they become frequent enough at the close of the thirteenth century, and especially in the fourteenth, are met by a resistance which sometimes actually leads to litigation[ ]. the freeholders alone have access to the courts, but in practice the entire body of the tenantry is equally concerned. the passage towards more efficient modes of cultivation was very much obstructed by these customary rules as to rotation of crops, which flow not from the will and interest of single owners, but from the decision of communities. [intermixture of strips.] the several plots and holdings do not lie in compact patches, but are formed of strips intermixed with each other. the so-called open-field system has been treated so exhaustively and with such admirable clearness by seebohm, that i need not detain my readers in order to discuss it at length. i shall merely take from the eynsham cartulary the general description of the arable of shifford, oxon. it consists of several furlongs or areas, more or less rectangular in shape; each furlong divided into a certain number of strips (_seliones_), mostly half an acre or a rood (quarter acre) in width; some of these strips get shortened, however (_seliones curtae_), or sharpened (_gorae_), according to the shape of the country. at right angles with the strips in the fields lie the 'headlands' (_capitales_), which admit to other strips when there is no special road for the purpose[ ]. when the area under tillage abuts against some obstacles, as against a highway, a river, a neighbouring furlong, the strips are stunted (_buttae_). every strip is separated from the next by _balks_ on even ground, and _linches_ on the steep slopes of a hill. the holding of a peasant, free or villain, has been appropriately likened to a bundle of these strips of different shapes, the component parts of which lie intermixed with the elements of other holdings in the different fields of the township. there is e.g. in the alvingham cartulary a deed by which john aysterby grants to the priory of alvingham in lincolnshire his villain robert and half a bovate of land[ ]. the half-bovate is found to consist of twelve strips west of alvingham and sixteen strips east of the village; the several plots lie among similar plots owned by the priory and by other peasants. the demesne land of the priory is also situated not in compact areas, but in strips intermixed with those of the tenantry, in the 'communal fields' according to the phraseology of our documents. such a distribution of the arable seems odd enough. it led undoubtedly to very great inconvenience in many ways: it was difficult for the owner to look after his property in the several fields, and to move constantly from one place to another for the purposes of cultivation. a thrifty husbandman was more or less dependent for the results of his work on his neighbours, who very likely were not thrifty. the strips were not always measured with exactness[ ], and our surveys mention curious misunderstandings in this respect: it happens that as much as three acres belonging to a particular person get mislaid somehow and cannot be identified[ ]. it is needless to say that disputes among the neighbours were rendered especially frequent by the rough way of dividing the strips, and by the cutting up of the holdings into narrow strips involving a very long line of boundary. and still the open-field system, with the intermixed strips, is quite a prevalent feature of mediaeval husbandry all over europe. it covers the whole area occupied by the village community; it is found in russia as well as in england. [division of the land in segheho.] before we try to find an explanation for it, i shall call the attention of the reader to the following tale preserved by an ancient survey of dunstable priory. i think that the record may suggest the explanation with the more authority as it will proceed from well-established facts and not from suppositions[ ]. the story goes back to the original division of the land belonging to the wahull manor by the lords de wahull and de la lege. the former had to receive two-thirds of the manor and the latter one-third: a note explains this to mean, that one had to take twenty knight-fees and the other ten. the lord de wahull took all the park in segheho and the entire demesne farm in 'bechebury.' as a compensation for the surrender of rights on the part of his fellow parcener, he ordered the wood and pasture called northwood to be measured, as also the neighbouring wood called churlwood. he removed all the peasants who lived in these places, and had also the arable of segheho measured, and it was found that there were eight hides of villain land. of these eight hides one-fourth was taken, and it was reckoned that this fourth was an equivalent to the one-third of the park and of the demesne farm, which ought by right to have gone to the lord de la lege. on the basis of this estimation an exchange was effected. in the time of the war (perhaps the rebellion of ) the eight hides and other hides in segheho were encroached upon and appropriated unrighteously by many, and for this reason a general revision of the holdings was undertaken before walter de wahull and hugh de la lege in full court by six old men; it was made out to which of the hides the several acres belonged. at that time, when all the tenants in segheho (knights, freeholders, and others) did not know exactly about the land of the village and the tenements, and when each man was contending that his neighbours held unrighteously and more than they ought, all the people decided by common agreement and in the presence of the lords de wahull and de la lege, that everybody should surrender his land to be measured anew with the rood by the old men as if the ground had been occupied afresh: every one had to receive his due part on consideration of his rights. at that time r.f. admitted that he and his predecessors had held the area near the castle unrighteously. the men in charge of the distribution divided that area into sixteen strips (buttos), and these were divided as follows: there are eight hides of villain land in segheho and to each two strips were apportioned. [intermixture produced by the wish to equalise the shares.] the narrative is curious in many respects. it illustrates beautifully the extent to which the intermixture of plots was carried, and the inconveniences consequent upon it. although the land had been measured and divided at the time when the lord de wahull took the land, everything got into confusion at the time of the civil war, and the disputes originated not in violence from abroad but in encroachments of the village people among themselves: the owners of conterminous strips were constantly quarrelling. a new division became necessary, and it took place under circumstances of great solemnity, as a result of an agreement effected at a great meeting of the tenantry before both lords. the new distribution may stand for all purposes in lieu of the original parcelling of the land on fresh occupation. the mode of treating one of the areas shows that the intermixture of the strips was a direct consequence of the attempt to equalise the portions. instead of putting the whole of this area into one lot, the old men divide it into strips and assign to every great holding, to every hide, two strips of this area. many inconveniences follow for some of the owners, e.g. for the church which, it is complained, cannot put its plot to any use on account of its lying far away, and in intermixture with other people's land. but the guiding principle of equal apportionment has found a suitable expression. [possible modes of dividing the land.] we may turn now from the analysis of this case to general considerations. the important point in the instance quoted was, that the assignment of scattered strips to every holding depended on the wish to equalise the shares of the tenants. i think it may be shown that the treatment adopted in segheho was the most natural, and therefore the most widely-spread one. to begin with, what other form of allotment appears more natural in a crude state of society? to employ a simile which i have used already, the territory of the township is not like a homogeneous sheet of paper out of which you may cut lots of every desirable shape and size: the tilth will present all kinds of accidental features, according to the elevation of the ground, the direction of the watercourses and ways, the quality of the soil, the situation of dwellings, the disposition of wood and pasture-ground, etc. the whole must needs be dismembered into component parts, into smaller areas or furlongs, each stretching over land of one and the same condition, and separated from land of different quality and situation. over the irregular squares of this rough chess-board a more or less entangled network of rights and interests must be extended. there seem to be only two ways of doing it: if you want the holding to lie in one compact patch you will have to make a very complicated reckoning of all the many circumstances which influence husbandry, will have to find some numerical expression for fertility, accessibility, and the like; or else you may simply give every householder a share in every one of the component areas, and subject him in this way to all the advantages and drawbacks which bear upon his neighbours. if the ground cannot be made to fit the system of allotment, the system must conform itself to the ground. there can be no question that the second way of escaping from the difficulty is much the easier one, and very suitable to the practice of communities in an early stage of development. this second way leads necessarily to a scattering and an intermixture of strips. the explanation is wide enough to meet the requirements of cases placed in entirely different local surroundings and historical connexions; the tendency towards an equalising of the shares of the tenantry is equally noticeable in england and in russia, in the far west and in the far east of europe. in russia we need not even go into history to find it operating in the way described; the practice is alive even now. [individual occupation of arable and communal rights.] this intermixture of strips in the open fields is also characteristic in another way: it manifests the working of a principle which became obliterated in the course of history, but had to play a very important part originally. it was a system primarily intended for the purpose of equalising shares, and it considered every man's rights and property as interwoven with other people's rights and property: it was therefore a system particularly adapted to bring home the superior right of the community as a whole, and the inferior, derivative character of individual rights. the most complete inference from such a general conception would be to treat individual occupation of the land as a shifting ownership, to redistribute the land among the members of the community from time to time, according to some system of lot or rotation. the western village community does not go so far, as a rule, in regard to the arable, at least in the time to which our records belong. but even in the west, and particularly in england, traces of shifting ownership, 'shifting severalty,' may be found as scattered survivals of a condition which, if not general, was certainly much more widely spread in earlier times[ ]. the arable is sometimes treated as meadows constantly are: every householder's lot is only an 'ideal' one, and may be assigned one year in one place, and next year in another. the stubborn existence of intermixed ownership, even as described by feudal and later records, is in itself a strong testimony to the communal character of early property. the strips of the several holders were not divided by hedges or inclosures, and a good part of the time, after harvest and before seed, individual rights retreated before common use; every individualising treatment of the soil was excluded by the compulsory rotation of crops and the fact that every share consisted of a number of narrow strips wedged in among other people's shares. the husbandry could not be very energetic and lucrative under such pressure, and a powerful consideration which kept the system working, against convenience and interest, was its equalising and as it were communal tendency. i lay stress on the fact: if the open-field system with its intermixture had been merely a reflection of the original allotment, it would have certainly lost its regularity very soon. people could not be blind to its drawbacks from the point of view of individual farming; and if the single strips had become private property as soon as they ceased to be shifting, exchanges, if not sales, would have greatly destroyed the inconvenient network. the lord had no interest to prevent such exchanges, which could manifestly lead to an improvement of husbandry; and in regard to his own strips, he must have perceived soon enough that it would be better to have them in one compact mass than scattered about in all the fields. and still the open-field intermixture holds its ground all through the middle ages, and we find its survivals far into modern times. this can only mean, that even when the shifting, 'ideal,' share in the land of the community had given way to the permanent ownership by each member of certain particular scattered strips, this permanent ownership did by no means amount to private property in the roman or in the modern sense. the communal principle with its equalising tendency remained still as the efficient force regulating the whole, and strong enough to subject even the lord and the freeholders to its customary influence. by saying this i do not mean to maintain, of course, that private property was not existent, that it was not breaking through the communal system, and acting as a dissolvent of it. i shall have to show by-and-by in what ways this process was effected. but the fact remains, that the system which prevailed upon the whole during the middle ages appears directly connected in its most important features with ideas of communal ownership and equalised individual rights. [arrangement of holdings.] these ideas are carried out in a very rough way in the mediaeval arrangement of the holding, which is more complicated in england than on the continent. according to a very common mode of reckoning, the hide contains four virgates, every virgate two bovates, and every bovate fifteen acres. the bovate (oxgang) shows by its very name that not only the land is taken into account, but the oxen employed in its tillage, and the records explain the hide or carucate[ ] to be the land of the eight-oxen plough, that is so much land as may be cultivated by a plough drawn by eight oxen. the virgate, or yard-land, being the fourth part of a hide, corresponds to one-fourth part of the plough, that is, to two oxen, contributed by the holder to the full plough-team; the bovate or oxgang appears as the land of one ox, and the eighth part of the hide[ ]. such proportions are, as i said, very commonly found in the records, but they are by no means prevalent everywhere. on the possessions of glastonbury abbey, for instance, we find virgates of forty acres, and a hide of ; and the same reckoning appears in manors of wetherall priory, westmoreland[ ], of the abbey of eynsham, oxfordshire[ ], and many other places. the so-called domesday of st. paul's reports[ ], that in runwell eighty acres used to be reckoned to the hide, but in course of time new land was acquired (for tillage) and measured, and so the hide was raised to acres. altogether the supposition of an uniform acre-measurement of bovates, virgates, hides, and knights' fees all over england would be entirely misleading. the oxen were an important element in the arrangement, but, of course, not the only one. the formation of the holding had to conform also to the quality of the soil, the density of the population, etc. we find in any case the most varying figures. the knight's fee contained mostly four or five full ploughs or carucates, and still in lincolnshire sixteen carucates went to the knight's fee[ ]. the carucate was not identical with the hide, but carucate and hide alike had originally meant a unit corresponding to a plough-team. four virgates were mostly reckoned to the hide, but sometimes six, eight, seven are taken[ ]. the yardlands (virgates) or full lands, as they are sometimes called, because they were considered as the typical peasant holdings, consist of fifteen, sixteen, eighteen, twenty-four, forty, forty-eight, fifty, sixty-two, eighty acres, although thirty is perhaps the figure which appears more often than any other[ ]. bovates of ten, twelve, and sixteen acres are to be found in the same locality[ ]. we cannot even seize hold of the acre as the one constant unit among these many variables; the size of the acre itself varied from place to place. in this way any attempt to establish a normal reckoning of the holdings will not only seem hazardous, but will actually stand in contradiction with patent facts. [the holdings not strictly equal in acreage.] another circumstance seems of yet greater import: even within the boundaries of one and the same community the equality was an agrarian one and did not amount to a strict correspondence in figures. it was obviously impossible to cut up the land among the holdings in such a way as to make every one contain quite the same number of acres as the rest. in the cartulary of ramsey it is stated, that in one of the manors the virgate contains sometimes forty-eight acres and sometimes less[ ]. the huntingdon hundred rolls mentions a locality where some of the half-virgates have got houses on their plots and some have not[ ]. in the dorsetshire manor of newton, belonging to glastonbury, we find a reduction of the duties of one of the virgates because it is a small one[ ]. a curious instance is supplied by the same glastonbury survey as to the wiltshire manor of christian malford: one of the virgates was formed out of two former virgates, which were found insufficient to support two separate households[ ]. this last case makes it especially clear that the object was to make the shares on the same pattern in point of quality, and not of mere quantity. it is only to be regretted that manorial surveys, hundred rolls, and other documents of the same kind take too little heed of such variations, and consider the whole arrangement merely in regard to the interests of the landlord. for this purpose a rough quantitative statement was sufficient. they give very sparing indications as to the facts underlying the system of holdings; their aim is to reduce all relations to artificial uniformity in order to make them a fitter basis for the distribution of rents and labour services. but very little attention is required to notice a very great difference between such figures and reality. in most of the cases, when the virgate is described in its component parts, we come across irregularities. again, each component part is more or less irregular, because instead of the acres and half-acres the real ground presents strips of a very capricious shape. and so we must come to the conclusion, that the hide, the virgate, the bovate, in short every holding mentioned in the surveys, appears primarily as an artificial, administrative, and fiscal unit which corresponds only in a very rough way to the agrarian reality. [acre ware.] this conclusion coincides with the most important fact, that the reckoning of acres in regard to the plough-team is entirely different in the treatises on husbandry from what it is in the manorial records drawn up for the purpose of an assessment of duties and payments. walter of henley and fleta reckon acres to the plough in a three-field system, and in a two-field system. now these figures are quite exceptional in surveys, whereas acres is most usual without any distinction as to the course of rotation of crops. the relation between the three-field ploughland of acres and the hide of suggests the inference that the official assessment started from the prevalence of the three-field rotation, and disregarded the fallow. but the inference is hardly sufficient to explain the facts of the case. the way towards a solution of the problem is indicated by the terminology of the ely surveys in the british museum. these documents very often mention virgates and full yardlands of twelve acres _de ware_; on the other hand, the court rolls from edward i's time till elizabeth's, and a survey of the reign of edward iii, show the virgate to consist of twenty-four acres[ ]. the virgate _de ware_ corresponds usually to one-half of the real virgate; i say usually, because in one case it is reckoned to contain eighteen acres in the place of twenty-four mentioned in the rolls and the later survey[ ]. such 'acre ware' are to be found, though rarely, in other manors besides those of ely minster[ ]. the contradiction between the documents may be taken at first glance to originate in a difference between the number of acres under actual tillage and the number of acres comprised in the holding: perhaps the first reckoning leaves out the fallow. this explanation has been tried by mr. o. pell, the present owner of one of the ely manors: he started it in connexion with an etymology which brought together 'ware' and 'warectum': on this assumption twelve acres appeared instead of twenty-four, because the fallow of the two-field system was left out of the reckoning. but this reading of the evidence does not seem satisfactory; it is one-sided at the least. why should the holding from which the 'warectum' has been left out get its name from the 'warectum'? how is one to explain either from the two-field or from the three-field system the case when eighteen 'acre ware' correspond to twenty-four common acres, or the even more perplexing case when eighteen acres of 'ware' go to the full land and twelve to half-a-full land[ ]? in fact, this last instance does not admit of any explanation from natural conditions, because in the natural course of things twelve will never come to be one-half of eighteen. thus we are driven to assume that the 'ware' reckoning is an artificial one: as such it could, of course, treat the half-holdings in a different way from the full holdings. now the only possible basis for an artificial distribution seems to be the assessment of rents and labour. starting from this assumption we shall have to say that the virgate 'de wara' represents a unit of assessment in which twelve really existing acres have been left out of the reckoning. the assessment stretches only over half the area occupied by the real holding. the conclusion we have come to is corroborated by the meaning of the word 'wara.' the etymological connexion with _warectum_ is not sound; the meaning may be best brought out by a comparison with those instances where the word is used without a direct reference to the number of acres. we often find the expression 'ad inwaram' in domesday, and it corresponds to the plain 'ad gildam regis.' if a manor is said to contain seven hides _ad inwaram_, it is meant that it pays to the king for seven hides, although there may have been more than seven ploughteams and ploughlands. another expression of like import is, 'pro sextem hidis se defendit erga regem.' the burton cartulary, the earliest survey after domesday, employed the word 'wara' in the same sense[ ]. it is not difficult to draw the inference from the above-mentioned facts: the etymological connexion for 'wara' is to be sought in the german word for defence--'wehre.' the manor defends itself or answers to the king for seven hides. the expression could get other special significations besides the one discussed: we find it for the poll-tax, by which a freeman defends himself in regard to the state[ ], and for the weir, which prevents the fish from escaping into the river[ ]. [hides of assessment.] this origin and use of the term is of considerable importance, because it shows the artificial character of the system and its close connexion with the taxation by the state. this is a disturbing element which ought to be taken into account by the side of the agrarian influence. there cannot be the slightest doubt that the assessment started from actual facts, from existing agrarian conditions and divisions. the hide, the yardland, the oxgang existed not only in the geld-rolls, but in fact and on the ground. but in geld-rolls they appeared with a regularity they did not possess in real fact; the rolls express all modifications in the modes of farming and all exemptions, not in the shape of any qualification or lighter assessment of single plots, but by way of striking off from the number of these plots, or from the number of acres in them; the object which in modern times would be effected by the registration of a 'rateable value' differing from the 'actual value' was effected in ancient times by the registration of a 'rateable size' differing from the 'actual size'; lastly, the surveys and rolls of assessment do not keep time with the actual facts, and often reflect, by their figures and statistics, the conditions of bygone periods. the hides of the geld or of the 'wara' tend to become constant and rigid: it is difficult for the king's officers to alter their estimates, and the people subjected to the tax try in every way to guard against novelties and encroachments. the real agrarian hide-area is changing at the same time because the population increases, new tenements are formed, and new land is reclaimed. we find at every step in our records that the assessment and the agrarian conditions do not coincide. if a manor has been given to a convent in free almoign (in liberam et perpetuam eleemosynam), that is, free from all taxes and payments to the state, there is no reason to describe it in units of assessment, and in fact such property often appears in manorial records without any 'hidation' or reckoning of knight-fees[ ]. the ramsey cartulary tells us that the land in hulme was not divided into hides and virgates[ ]. there are holdings, of course, and they are equal, but they are estimated in acres. when the hidation has been laid on the land and taxes are paid from it, the smaller subdivisions are sometimes omitted: the artificial system of taxation does not go very deep into details. even if most part of the land has been brought under the operation of that system, some plots are left which do not participate in the common payments, and therefore are said to be 'out of the hide[ ].' such being the case, there can be no wonder that one of the ramsey manors answers to the king for ten hides, and to the abbot for eleven and a-half[ ]. it is to be noted especially, that although in a few cases a difference is made between the division for royal assessment and for the manorial impositions, in the great majority of cases no such difference exists, and the duties in regard to the king and to the lord are reckoned according to the same system of holdings. on the manors of ely, for instance, the _acreware_[ ] form the basis of all the reckoning of rents and work. and so if the royal assessment appear with the features of an artificial fiscal arrangement, the same observation has to be extended to the manorial assessment; and thus we reach by another way the same conclusion which we drew from an analysis of the single holding and of its component parts. no doubt the whole stands in close relation to the reality of cultivation and land-holding, but the rigidity, regularity, and correctness of the system present a necessary contrast to the facts of actual life. as the soil could not be made to fit into geometrical squares, even so the population could not remain without change from one age to the other within the same boundaries. thus in course of time the plough-land of and acres, which is the plough-land of practical farming, appears by the side of the statutory hide of acres; and so again inside every single holding there comes up the contrast between its real conformation and distribution, and the outward form it assumed in regard to the king, the lord, and the steward. [rules of inheritance.] the inquiry as to the relation between the holding and the population on it is, of course, of the utmost importance for a general estimate of the arrangement. from a formal point of view the question is soon solved: on the one hand, the holding of the villain remains undivided and entire; it does not admit of partition by sale or descent; on the other, the will of the lord may alter, if necessary, the natural course of inheritance and possession; the socage tenure is often free from the first of these limitations, and always free from the second. the indivisibility of villain tenements is chiefly conspicuous in the law of inheritance: all the land went to one of the sons if there were several; very often the youngest inherited; and this custom, to which mere chance has given the name of borough english, was considered as one of the proofs of villainage[ ]. it is certainly a custom of great importance, and probably it depended on the fact that the elder brothers left the land at the earliest opportunity, and during their father's life. where did they go? it is easy to guess that they sought work out of the manor, as craftsmen or labourers; that they served the lord as servants, ploughmen, and the like; that they were provided with holdings, which for some reason did not descend to male heirs; that they were endowed with some demesne land, or fitted out to reclaim land from the waste. we may find for all these suppositions some supporting quotation in the records. and still it would be hard to believe that the entire increase of population found an exit by these by-paths. if no exit was found, the brothers had to remain on their father's plot, and the fact that they did so can be proved, if it needs proof, from documents[ ]. the unity of the holding was not disturbed in the case; there was no division, and only the right heir, the {hestiopamôn} as they said in sparta, had to answer for the services; the lord looked to him and no further; but in point of fact the holding contained more than one family, and perhaps more than one household. however this may be, in regard to the lord the holding remained one and undivided. this circumstance draws a sharp line between the feudal arrangement of most counties and that which prevailed in kent. the gavelkind or tributary tenure there was subjected to equal partition among the heirs. [kentish system.] let us take a kentish survey, the black book of st. augustine's, canterbury, for instance: it describes the peasant holdings in a way which differs entirely from other surveys. it begins by stating what duties lie on each _sulung_, that is, on the kentish ploughland corresponding to the hide of feudal england. no regular sub-divisions corresponding to the virgates and bovates are mentioned, and the reckoning starts not from separate tenements, but from their combination into sulungs[ ]. then follow descriptions of the single sulungs, and it turns out that every one of them consists of a very great number of component parts, because the progeny of the original holders has clustered on them, and parcelled them up in very complicated combinations[ ]. the portions are sometimes so small, that an independent cultivation of them would have been quite impossible. in order to understand the description it must be borne in mind that the fact of the tenement being owned by several different persons in definite but undivided shares did not preclude farming in common; while on the other hand, in judging of the usual feudal arrangement of holdings we must remember that the artificial unity and indivisibility of the tenement may be a mere screen behind which there exists a complex mass of rights sanctioned by morality and custom though not by law. the surveys of the kentish possessions of battle abbey are drawn up on the same principle as those of st. augustine's; the only difference is, that the individual portions are collected not in sulungs, but in yokes (_juga_)[ ]. and so we have in england two systems of dividing the land of the peasant, of regulating its descent and its duties. in one case the tenant-right is connected with rigid holdings descending to a single heir; in another the tenements get broken up, and the heirs club together in order to meet the demands of the manorial administration. the contrast is sharp and curious enough. how is one to explain, that in conditions which were more or less identical, the land was sometimes partitioned and sometimes kept together, the people were dispersed in some instances and kept together in others? [connecting links between the two systems.] closer inspection will show that however sharp the opposition in law may have been, in point of husbandry and actual management the contrast was not so uncompromising. connecting links may be found between the two. the domesday of st. paul's, for instance, is compiled in the main in the usual way, but one section of it--the description of the essex manors of kirby, horlock, and thorpe--does not differ from the kentish surveys in anything but the terminology[ ]. the services are laid on hides, and not on the actual tenements. each hide includes a great number of plots which do not fall in with any constant subdivisions of the same kind as the virgates and bovates. some of these plots are very small, all are irregular in their formation. it happens that one and the same person holds in several hides. in one word, the kentish system has found a way for some unexplained reason into the possessions of st. paul's, and we find subjected to it some essex manors which do not differ much in their husbandry arrangements from other properties in essex, and have no claim to the special privileges of kentish soil. once apprised of the possible existence of such intermediate forms, we shall find in most surveys facts tending to connect the two arrangements. the gloucester cartulary, for instance, mentions virgates held by four persons[ ]. the plots of these four owners are evidently brought together into a virgate for the purpose of assessing the services. two peasants on the same virgate are found constantly. it happens that one gets the greater part of the land and is called the heir, while his fellow appears as a small cotter who has to co-operate in the work performed by the virgate[ ]. indications are not wanting that sometimes virgates crumbled up into cotlands, bordlands, and crofts. the denomination of some peasants in northumberland is characteristic enough--they are 'selfoders,' obviously dwelling 'self-other' on their tenements[ ]. on the other hand, it is to be noticed that the gavelkind rule of succession, although enacting the partibility of the inheritance, still reserves the hearth to the youngest born, a trace of the same junior right which led to borough english. [united and partible holdings.] i think that upon the whole we must say that in practice the very marked contrast between the general arrangement of the holdings and the kentish one is more a difference in the way of reckoning than in actual occupation, in legal forms than in economical substance. the general arrangement admitted a certain subdivision under the cover of an artificial unity which found its expression in the settlement of the services and of the relations with the lord[ ]. the english case has its parallel on the continent in this respect. in alsace, for instance, the holding was united under one 'träger' or bearer of the manorial duties; but by the side of him other people are found who participate with this official holder in the ownership and in the cultivation[ ]. the second system also kept up the artificial existence of the higher units, and obvious interests prevented it from leading to a 'morcellement' of land into very small portions in practice. the economic management of land could not go as far as the legal partition. in practice the subdivision was certainly checked, as in the virgate system, by the necessity of keeping together the cattle necessary for the tillage. virgates and bovates would arise of themselves: it was not advantageous to split the yoke of two oxen, the smallest possible plough; and co-heirs had to think even more when they inherited one ox with its ox-gang of land. the animal could not be divided, and this certainly must have stopped in many cases the division of land. when the documents speak of plots containing two or three acres, it must be remembered that such crofts and cotlands occur also in the usual system, and i do not see any reason to suppose that the existence of such subdivided rights always indicated a real dispersion of the economic unit: they may have stood as a landmark of the relative rights of joint occupiers. i do not mean to say, of course, that there was no real basis for the very great difference which is assumed by the two ways of describing the tenements. no doubt the hand of the lord lay heavier on the essex people than on the kentish men, their occupation and usage of the land was more under the control of the lord, and assumed therefore an aspect of greater regularity and order. again, the legal privileges of the kentish people opened the way towards a greater development of individual freedom and a certain looseness of social relations. still it would be wrong to infer too much from this formal opposition. in both cases the centripetal and the centrifugal tendency are working against each other in the same way, although one case presents the stronger influence of disruptive forces, and the other gives predominance to the collective power. in the history of socage and military tenure the system of unity arose gradually, and without any sudden break, out of the system of division. the intimate connexion between both forms is even more natural in peasant ownership, which had to operate with small plots and small agricultural capital, and therefore inclined naturally towards the artificial combination of divided interests. in any case there is no room in practice for the rigid and consequent operation of either rule of ownership, and, if so, there is no actual basis for the inference that the unification of the holding is to be taken as a direct consequence of a servile origin of the tenement and a sure proof of it. unification appears on closer inspection as a result of economic considerations as well as of legal disabilities, and for this reason the tendency operated in the sphere of free property as well as among the villains; among these last it could not preclude the working of the disruptive elements, but in many cases only hid them from sight by its artificial screen of rigid holdings. [the holding and the team.] we have seen that the size and distribution of the holdings are connected with the number of oxen necessary for the tillage, and its relation to the full plough. the hide appears as the ploughland with eight oxen, the virgate corresponds to one yoke of oxen, and the bovate to the single head. it need not be added that such figures are not absolutely settled, and are to be accepted as approximate terms. the great heavy plough drawn by eight or ten oxen is certainly often mentioned in the records, especially on demesne land[ ]. the dependent people, when they have to help in the cultivation of the demesne, club together in order to make up full plough teams[ ]. it is also obvious that the peasantry had to associate for the tilling of their own land, as it was very rare for the single shareholder to possess a sufficient number of beasts to work by himself. but it must be noticed that alongside of the unwieldy eight-oxen plough we find much lighter ones. even on the demesne we may find them drawn by six oxen. and as for the peasantry, they seem to have very often contented themselves with forming a plough team of four heads[ ]. it is commonly supposed by the surveys that the holder of a yardland joins with one of his fellows to make up the team. this would mean on the scale of the hide of acres that the team consists of four beasts[ ]. it happens even that a full plough is supposed to belong to two or three peasants, of which every one is possessed only of five acres; in such cases there can be no talk of a big plough; it is difficult to admit even a four-oxen team, and probably those people only worked with one yoke or pair of beasts[ ]. altogether it would be very wrong to assume in practice a strict correspondence between the size of the holding and the parts of an eight-oxen plough. the observation that the usual reckoning of the hide and of its subdivisions, according to the pattern of the big team, cannot be made to fit exactly with the real arrangement of the teams owned by the peasantry--this firmly established observation leads us once more to the conclusion that the system of equal holdings had become very artificial in process of time and was determined rather by the relation between the peasants and the manorial administration than by the actual conditions of peasant life. unhappily the artificial features of the system have been made by modern inquirers the starting-point of very far-reaching theories and suppositions. seebohm has proposed an explanation of the intermixture of strips as originating in the practice of coaration. he argues that it was natural to divide the land tilled by a mixed plough-team among the owners of the several beasts and implements. every man got a strip according to a certain settled and ever-recurring succession. i do not pretend to judge of the value of the interesting instances adduced by seebohm from celtic practices, but whatever the arrangement in wales or ireland may have been, the explanation does not suit the english case. a doubt is cast on it already by the fact that such a universal feature as the intermixture of strips appears connected with the occurrence of such a special instrument as the eight-oxen plough. the intermixture is quite the same in central russia, where they till with one horse, and in england where more or less big ploughs were used. the doubt increases when we reflect that if the strips followed each other as parts of the plough-team, the great owners would have been possessed of compact plots. every holder of an entire hide would have been out of the intermixture, and every virgater would have stood in conjunction with a sequence of three other tenants. neither the one nor the other inference is supported by the facts. the observation that the peasantry are commonly provided with small ploughs drawn by four beasts ruins seebohm's hypothesis entirely. one would have to suppose that most fields were divided into two parts, as the majority of the tenements are yardlands with half a team. the only adequate explanation of the open-field intermixture has been given above; it has its roots in the wish to equalise the holdings as to the quantity and quality of the land assigned to them in spite of all differences in the shape, the position, and the value of the soil. [terms of exceptional occurrence.] before i leave the question as to the holdings of the feudal peasantry, i must mention some terms which occur in different parts of england, although more rarely than the usual hides and virgates[ ]. of the _sulung_ i have spoken already. it is a full ploughland, and acres are commonly reckoned to belong to it. the name is sometimes found out of kent, in essex for instance. in tillingham, a manor of st. paul's of london, we come across six hides 'trium solandarum[ ].' the most probable explanation seems to be that the hide or unit of assessment is contrasted with the _solanda_ or _sulland_ (sulung), that is with the actual ploughland, and two hides are reckoned as a single solanda. the yokes (juga) of battle abbey[ ] are not virgates, but carucates, full ploughlands. this follows from the fact that a certain virgate mentioned in the record is equivalent only to one fourth of the yoke. in the norfolk manors of ely minster we find _tenmanlands_[ ] of acres in the possession of several copartitioners, _participes_. the survey does not go into a detailed description of tenements and rights, and the reckoning of services starts from the entire combination, as in the kentish documents. a commonly recurrent term is _wista_[ ]; it corresponds to the virgate: a great wista is as much as half-a-hide, or two virgates[ ]. the terms discussed hitherto are applied to the tenements in the fields of the village; but besides those there are other names for the plots occupied by a numerous population which did not find a place in the regular holdings. there were craftsmen and rural labourers working for the lord and for the tenants; there were people living by gardening and the raising of vegetables. this class is always contrasted with the tenants in the fields. the usual name for their plots is cote, cotland, or cotsetland. the so-called _ferdel_, or fourth part of a virgate, is usually mentioned among them because there are no plough-beasts on it[ ]. another name for the _ferdel_ is _nook_[ ]. next come the crofters, whose gardens sometimes extend to a very fair size--as much as ten acres in one enclosed patch[ ]. the cotters proper have generally one, two, and sometimes as much as five acres with their dwellings; they cannot keep themselves on this, as a rule, and have to look out for more on other people's tenements. a very common name for their plots is 'lundinaria[ ],' 'mondaylands,' because the holders are bound to work for the lord only one day in the week, usually on monday. although the absence of plough-beasts, of a part in coaration, and of shares in the common fields draws a sharp line between these men and the regular holders, our surveys try sometimes to fit their duties and plots into the arrangement of holdings; the cotland is assumed to represent one sixteenth or even one thirty-second part of the hide[ ]. the glastonbury survey of contains a curious hint that two cottages are more valuable than one half-virgate: two cotlands were ruined during the war, and they were thrown together into half a virgate, although it would have been more advantageous to keep two houses on them, that is two households[ ]. the _bordae_ mentioned by the documents are simply cottages or booths without any land belonging to them[ ]. the manorial police keeps a look-out that such houses may not arise without licence and service[ ]. a good many terms are not connected in any way with the general arrangement of the holdings, but depend upon the part played by the land in husbandry or the services imposed upon it. to mention a few among them. a plot which has to provide cheese is called cheeseland[ ]. those tenements which are singled out for the special duty of carrying the proceeds of the manorial cultivation get the name of _averlands_[ ]. the terms _lodland_[ ], _serland_[ ] or _sharland_, are also connected with compulsory labour. the first is taken from the duty to carry loads or possibly to load waggons; the second may be employed in reference to work performed with the sithe or reap-hook. a plot reserved for the leader of the plough-team, the akerman, was naturally called _akermanland_[ ]. sometimes, though rarely, the holding gets its name from the money rent it has to pay. we hear of _denerates_[ ] and _nummates_[ ] of land in this connexion. [conclusions.] all these variations in detail do not avail to modify to any considerable extent the chief lines on which the medieval system of holdings is constructed. i presume that the foregoing exposition has been sufficient to establish the following points:-- . the principle upon which the original distribution depended was that of equalizing the shares of the members of the community. this led to the scattering and to the intermixture of strips. the principle did not preclude inequality according to certain degrees, but it aimed at putting all the people of one degree into approximately similar conditions. . the growth of population, of capital, of cultivation, of social inequalities led to a considerable difference between the artificial uniformity in which the arrangement of the holdings was kept and the actual practice of farming and ownership. . the system was designed and kept working by the influence of communal right, but it got its artificial shape and its legal rigidity from the manorial administration which used it for the purpose of distributing and collecting labour and rent. . the holdings were held together as units, not merely by the superior property of the lord, but by economic considerations. they were breaking up under the pressure of population, not merely in the case of free holdings, but also where the holdings were servile. chapter ii. rights of common. [meadows.] the influence of the village community is especially apparent in respect of that portion of the soil which is used for the support of cattle. the management of meadows is very interesting because it presents a close analogy to the treatment of the arable, and at the same time the communal features are much more clearly brought out by it. we may take as an instance a description in the eynsham survey. the meadow in shifford is divided into twelve strips, and these are distributed among the lord and the tenantry, but they are not apportioned to any one for constant ownership. one year the lord takes all the strips marked by uneven numbers, and the next year he moves to those distinguished by even numbers[ ]. the tenants divide the rest according to some settled rotation. very often lots are drawn to indicate the portions of the several households[ ]. it must be added that the private right of the single occupiers does not extend over the whole year: as in the case of the arable all inclosures fall after the harvest, so in regard to meadows the separate use, and the boundaries protecting it, are upheld only till the mowing of the grass: after the removal of the hay the soil relapses into the condition of undivided land. the time of the 'defence' extends commonly to 'lammas day:' hence the expression 'lammas-meadow' to designate such land. it is hardly necessary to insist on the great resemblance between all these features and the corresponding facts in the arrangement of the arable. the principle of division is supplied by the tendency to assign an equal share to every holding, and the system of scattered strips follows as a necessary consequence of the principle. the existence of the community as a higher organising unit is shewn in the recurrence of common use after the 'defence,' and in the fact that the lord is subjected to the common rotation, although he is allowed a privileged position in regard to it. the connexion in which the whole of these rights arises is made especially clear by the shifting ownership of the strips: private right appears on communal ground, but it is reduced to a _minimum_ as it were, has not settled down to constant occupation, and assumes its definite shape under the influence of the idea of equal apportionment. of course, by the side of these communal meadows we frequently find others that were owned in severalty. [allotment of pasture.] land for pasture also occurs in private hands and in severalty, but such cases are much rarer[ ]. sometimes the pasture gets separated and put under 'defence' for one part of the year, and merges into communal ownership afterwards[ ]. but in the vast majority of cases the pasture is used in common, and none of the tenants has a right to fence it in or to appropriate it for his own exclusive benefit. it ought to be noted, that the right to send one's cattle to the pasture on the waste, the moors, or in the woods of a manor appears regularly and intimately connected with the right to depasture one's cattle on the open fields of the village[ ]. both form only different modes of using communal soil. as in the case of arable and meadow the undivided use cannot be maintained and gets replaced by a system of equalised shares or holdings, so in the case of pasture the faculty of sending out any number of beasts retires before the equalisation of shares according to certain modes of 'stinting' the common. we find as an important manorial arrangement the custom to 'apportion' the rights of common to the tenements, that is to decide in the manorial court, mostly according to verdicts of juries, how many head of cattle, and of what particular kind, may be sent to the divers pasture-grounds of the village by the several holdings. from time to time these regulations are revised. one of the glastonbury surveys contains, for instance, the following description from the th year of henry iii. each hide may send to the common eighteen oxen, sixteen cows, one bull, the offspring of the cows of two years, two hundred sheep with four rams, as well as their offspring of one year, four horses and their offspring of one year, twenty swine and their offspring of one year[ ]. according to a common rule the only cattle allowed to use the village pasture was that which was constantly kept in the village, _levant e couchant en le maner_. in order to guard against the fraudulent practice of bringing over strange cattle and thus making money at the expense of the township, it was required sometimes that the commonable cattle should have wintered in the manor[ ]. [pasture an adjunct to holding.] these last rules seem at first sight difficult of explanation: one does not see in what way the bringing in of strange cattle could damage the peasantry of the village, as nobody could drive more than a certain number of beasts to the common, and as the overburdening of it depended entirely on the excess of this number, and not on the origin of the beasts. and so one has to look to something else besides the apprehension that the common would get overburdened, in order to find a suitable explanation of the rule. an explanation is readily supplied by the notion that the use of the common was closely connected with the holding. strange cattle had nothing to do with the holding, and were to be kept off from the land of the community; it is as representatives of a community whose territory has been invaded that the individual commoners have cause to complain. in fact, the common pasture, as well as the meadows, were thought of merely as a portion of the holding. the arrangements did not admit of the same certainty or rather of the same kind of determination as the division of the arable, but the main idea which regulated the latter was by no means cut short in its operation, if one may say so: it was not bound up with the exact measurement of arable acres. the holding was the necessary agricultural outfit of a peasant family, and of this outfit the means of feeding the cattle were quite as important a part as the means of raising crops. it is only inaccurately that we have been speaking of a virgate of acres, and of a ploughland of or . the true expression would be to speak of a virgate of acres of arable and the corresponding rights to pasture and other common uses. and the records, when they want to give something like a full description, do not omit to mention the 'pertinencia,' the necessary adjuncts of the arable. the term is rather a vague one, quite in keeping with the rights which, though tangible enough, cannot be cut to so certain a pattern as in the case of arable[ ]. and for this reason the laxer right had to conform to the stricter one, and came to be considered as appendant to it. [common in special cases.] we have considered till now the different aspects assumed by common of pasture, when it arises within the manor, and as a consequence of the arrangement of its holdings. but this is not the only way in which common of pasture may arise. it may originate in an express and special grant by the lord either to a tenant or to a stranger[ ]; it may also proceed from continuous use from time beyond legal memory[ ]: it must have been difficult in many cases to prevent strangers from establishing such a claim by reason of long occupation in some part of a widely stretching moor or wood pasture[ ]. it was not less difficult in such cases to draw exact boundaries between adjoining communities, and we find that large tracts of country are used as a common pasture-ground by two villages, and even by more[ ]. neighbours deem it often advantageous to establish a certain reciprocity in this respect[ ]. by special agreement or by tacit allowance lords and tenants intercommon on each other's lands: this practice extends mostly to the waste only, but in some cases the arable and meadow are included after the removal of the crop and of the hay. the procedure of the writ 'quo jure' was partly directed to regulate these rights and to prevent people from encroaching wantonly upon their neighbours[ ]. when land held in one fee or one manor was broken up for some reason into smaller units, the rights of pasture were commonly kept up according to the old arrangements[ ]. these different modes of treating the pasture present rather an incongruous medley, and may be classified in several ways and deduced from divers sources. [modern classification of commons.] the chief distinctions of modern law are well known: 'common appendant is the right which every freehold tenant of the manor possesses, to depasture his commonable cattle, levant and couchant on his freehold tenement anciently arable, on the wastes of the manor, and originally on all (common) pasture in the manor. common appurtenant on the other hand is against common right, becoming appurtenant to land either by long user or by grant express or implied. thus it covers a right to common with animals that are not commonable, such as pigs, donkeys, goats, and geese; or a right to common claimed for land not anciently arable, such as pasture, or land reclaimed from the waste within the time of legal memory, or for land that is not freehold, but copyhold[ ].' common in gross is a personal right to common pasture in opposition to the praedial rights. mr. scrutton has shown from the year books that these terms and distinctions emerge gradually during the fourteenth century, and appear substantially settled only in littleton's treatise. bracton and his followers, fleta and britton, do not know them. these are important facts, but they hardly warrant the inferences which have been drawn from them. the subject has been in dispute in connexion with discussions as to the free village community. joshua williams, in his rights of common[ ], had assumed common appendant to originate in ancient customary right bestowed by the village community and not by the lord's grant; scrutton argues that such a right is not recognised by the documents. he lays stress on the fact, that bracton speaks only of two modes of acquiring common, namely, express grant by the lord, and long usage understood as constant sufferance on the part of the lord amounting to an express grant. but this is only another way of saying that bracton's exposition is based on feudal notions, that his land law is constructed on the principle 'nulle terre sans seigneur,' and that every tenement, as well as every right to common, is considered in theory as granted by the lord of the manor. it may be admitted that bracton does not recognise just that kind of title which later lawyers knew as appendancy, does not recognise that a man can claim common by showing merely that he is a freeholder of the manor. unless he relies on long continued user, he must rely upon grant or feoffment. but the distinction between saying 'i claim common because i am a freeholder of the manor' and saying 'i claim common because i or my ancestors have been enfeoffed of a freehold tenement of the manor and the right of common passed by the feoffment,' though it may be of juristic interest and even of some practical importance as regulating the burden of proof and giving rise to canons for the interpretation of deeds, is still a superficial distinction which does not penetrate deeply into the substance of the law. on the whole we find that the freeholder of bracton's time and of earlier times does normally enjoy these rights which in after time were described as 'appendant' to his freehold; and it is well worth while to ask whether behind the general assumptions of feudal theory there do not lie certain data which, on the one hand, prepare and explain later terminology, and are connected, on the other, with the historical antecedents of the feudal system. a little reflection will show that the divisions of later law did not spring into being merely as results of legal reasoning and casuistry. indeed, from a lawyer's point of view, nothing can be more imperfect than a classification which starts from three or four principles of division seemingly not connected with each other. common appendant belongs to a place anciently arable, common appurtenant may belong to land of any kind; the first is designed for certain beasts, the second for certain others; one is bound up with freehold, the other may go with copyhold; in one case the right proceeds from common law, in the other from 'specialty.' one may reasonably ask why a person sending a cow to the open fields or to the waste from a freehold tenement can claim common appendant, and his neighbour sending a cow to the same fields from a copyhold has only common appurtenant. or again, why does a plot of arable reclaimed from the waste confer common appurtenant, and ancient arable common appendant? or again, why are the goats or the swine of a tenement sent to pasture by virtue of common appurtenant, and the cows and horses by virtue of common appendant? and, above all, what have the several restrictions and definitions to do with each other? such a series of contrasted attributes defies any attempt to simplify the rules of the case according to any clearly defined principle: it seems a strange growth in which original and later elements, important and secondary features, are capriciously brought together. in order to explain these phenomena we have to look to earlier and not to later law. what seems arbitrary and discordant in modern times, appears clear and consistent in the original structure of the manor. [foundations of later classification in early law.] the older divisions may not be so definitely drawn and so developed as the later, but they have the advantage of being based on fundamental differences of fact. even when the names and terms do not appear well settled, the subject-matter arranges itself according to some natural contrasts, and it is perhaps by too exclusive study of names and terms that mr. scrutton has been prevented from duly appreciating the difference in substance. he says of the end of the thirteenth century: 'in the reports about this time it seems generally to be assumed that if the commoner cannot show an _especialté_ or special grant or title, he must show "fraunc tenement en la ville a ques commune est appendant." thus we have the question:--"coment clamez vous commune? com appendant, ou par especialté,' while hengham, j. says: 'prescription de terre est assez bon especialté"' (p. ). this is really the essence of all the rules regarding common of pasture, and, what is more, the contrast follows directly from arrangements which did not come into use in the fourteenth century, but were in full work at the time of bracton and long before it. what is called in later law common appendant, appears as the normal adjunct to the holding, that is, to a share in the system of village husbandry. if a bovate is granted to a person, so much of the rights of pasture as belongs to every bovate in the village is presumed to be granted with the arable. 'so much as belongs to every bovate in the village;' this means, that the common depends in this case on a general arrangement of the pasture in the village. such an arrangement exists in every place; it is regulated by custom and by the decisions of the manorial court or halimote, it extends equally over the free and over the unfree land, over the waste, the moor and wood, and over the fallow; it admits a certain number and certain kinds of beasts, and excludes others. only because such a general arrangement is supposed to exist, is the right to common treated in so vague a manner; the documents present, in truth, only a reference to relations which are substantiated in the husbandry system of the manor. but the right of common may exceed these lines in many ways: it may be joined to a tenement which lies outside the manorial system, or a plot freshly reclaimed from the waste, or to a holding belonging to some other manor. it may admit a greater number and other kinds of beasts than those which were held commonable in the usual course of manorial husbandry. in such cases the right to pasture had to proceed from some special agreement or grant, and, of course, had to be based on something different from the ordinary reference to the existing system of common husbandry. if there was no deed to go by, such a right could only be established by long use. [bracton's doctrine.] i think that all this must follow necessarily as soon as the main fact is admitted, that common is normally the right to pasture of a shareholder of the manor. the objection may be raised, that such _a priori_ reasoning is not sufficient in the case, because the documents do not countenance it by their classification. would the objection be fair? hardly, if one does not insist on finding in bracton the identical terms used in coke upon littleton. it is true that bracton speaks of common in general, and not of common appendant, appurtenant, and in gross, but the right of common which he treats as normal appears to be very peculiar on a closer examination of his rules. it is praedial and not personal; to begin with, it is always thought of as belonging to a tenement[ ]. what is more, it cannot belong to a tenement reclaimed from the waste[ ], and in this way the requirement of 'ancient arable' is established, that is, the pasture is considered as one of the rights conceded to the original shares of a manorial community. the use of the open field outside the time of reasonable defence[ ] is primarily meant, and the common pasture appears from this point of view as one of the stages in the process of common farming. to make up the whole, the right to common is defined by a 'quantum pertinet[ ],' which has a sense only in connexion with the admeasurement of claims effected by the internal organisation of the manor. such is evidently the normal arrangement presupposed by bracton's description, and his only fault is, that he does not distinguish with clearness between the consequences of the normal arrangement, and of grants or usurpations which supplement and modify it. it must be remembered that he only gives the substantive law about common rights in the course of a discussion of the pleadings in actions 'quo jure' and assizes of pasture. if we compare with bracton's text the rules and decisions laid down in the legal practice of the thirteenth century, we shall find that the same facts are implied by them. they all suppose a contrast between 'intrinsec' and 'forinsec' claims to common, that is between the rights of those who are members of the manorial group, and the rights, if any, of those who are outside it, and again a contrast between the normal rights of commoners and any more extensive rights acquired by special grant or agreement. only the freeholders are protected in the enjoyment of their commons; only the freeholders are protected in the enjoyment of their tenements; but their claims are based on arrangements in which the unfree land participates in everything with the free. it may be added that litigation mostly arises from the adjustment of 'forinsec' claims under the writ 'quo jure.' the intercommoning between neighbours gives rise to a good many disputes, and is much too frequent to be considered, as it was by later law, a mere 'excuse for trespassing[ ].' this common 'pur cause de vicinage' may be a relic of a time when adjoining villages formed a part of a higher unit of some kind, of the mark, of a hundred, for example. it may be explained also by the difficulty of setting definite boundaries in wide tracts of moor and forest. however this may be, its constant occurrence forms another germ of a necessary contrast between the two classes which afterwards developed into common appendant and common appurtenant. it could not be brought under the same rules as those which flowed from the internal arrangement of the manor. a special difficulty attended it as to admeasurement: the customary treatment of other holdings could not in this case serve as a standard. the very laxity of the principle naturally gave occasion to very different interpretations and deductions. and so we are justified in saying, that the chief distinctions of later law are to be found in their substance in the thirteenth century, and that although a good deal of confusion occurs in details, the earlier documents give even better clues than the later to the reasons which led to the well-known classification. [restrictions on the lord as to common pasture.] common appendant, if we may use the modern term for the sake of brevity, is indissolubly connected with the system of husbandry followed by the village community. a very noticeable feature of it is, that, in one sense, it towers over the lord of the manor as well as over the tenants. of course, legally the lord is considered as the owner of the waste[ ], but even from the point of view of pure law his ownership is restricted by his own grants. in so much as he has conceded freehold tenements to certain persons, he is bound by his own deed not to withhold from these persons the necessary adjuncts of such tenements, and especially the rights of pasture bound up with them. the free tenants share with the lord, if he wants to turn his common pasture to some special and lucrative use; if, for instance, strangers are admitted to it for money, one part of the proceeds goes to the tenantry[ ]. again, the lord may not overburden the common, and sometimes freeholders try their hand at litigation against the lord on the ground that he sends his cattle to some place where they ought not to go[ ]. the point cannot be overlooked, that the lord of the manor appears subjected to certain rules set up by custom and common decision in the meetings of his tenantry. the number and kind of beasts which may come to the common from his land is fixed, as well as the number that may come from the land of a cottager[ ]. the freeholders alone can enforce the rule against him, but it is set up not by the freeholders, but by the entire community of the manor, and practically by the serfs more than by the freeholders, because they are so much more numerous. [approvement.] as the common of pasture appears as an outcome of a system of husbandry set up by the village community, so every change in the use of the pasture ought in the natural course to proceed from a decision of this community. such a change may be effected in one of two manners: the customary rotation of crops may be altered, or else a part of the waste may be reclaimed for tillage. in the first case, a portion of the open arable and meadow, which ought to have been commonable at a certain time, ceases to be so; in the second, the right to send cattle to the waste is stinted in so much as the arable is put under defence, or the land is used for the construction of dwellings. by the common law the free tenants alone could obtain a remedy for any transgression in this respect. i have mentioned already that suits frequently arose when the old-fashioned rotation of crops was modified in accordance with the progress of cultivation. as to the right of approving from the waste, the relative position of lord and tenants was for a long time debateable, and, as everybody knows, the lord was empowered to approve by the statute of merton of henry iii, with the condition that he should leave sufficient pasture to his free tenants according to the requirements of their tenements. the same power was guaranteed by the statute of westminster ii against the claims of neighbours. it has been asked whether, before the statute of merton, the lord had power to enclose against commoners, if he left sufficient common to satisfy their rights. bracton's text in the passage where he treats of the statute is distinctly in favour of the view that this legislative enactment did actually alter the common law, and that previously it was held that a lord could not approve without the consent of his free-tenants[ ]. turning to the practice of the thirteenth-century courts, we find that the lawyers were rather doubtful as to this point. in a case of the jurors declare, that although the defendant has approved about two acres of land from the waste where the plaintiff had common, this latter has still sufficient pasture left to him. and thereupon the plaintiff withdraws[ ]. in a lord who has granted pasture everywhere, 'ubique,' and has inclosed part of it, succumbs in a suit against his tenant, and we are led to suppose that if the qualification 'ubique' had been absent, his right of approvement would have been maintained. it must be noticed, however, that the marginal note in bracton's note-book does not lay stress on the 'ubique,' and regards the decision as contrary to the law subsequently laid down by the constitution of merton[ ]. in a case of one of the counsel for the defendant took it for granted that the statute of merton altered the previously existing common law[ ]. the language of the statutes themselves is certainly in favour of such a construction: in the merton constitution it is stated as a fact that the english magnates were prevented from making use of their manors[ ], and the westminster statute is as positive as to neighbours; 'multi domini hucusque ... impediti extiterunt,' etc. it seems hardly possible to doubt that the enactments really represent a new departure, although the way towards it had been prepared by the collision of interests in open court. the condition negatively indicated by the documents in regard to the time before these enactments cannot be dismissed by the consideration that the lord would derogate from his grant by approving. although a single trial may bear directly on the relation between the lord and only one of the tenants or a few of them, every change in the occupation of the land touches all those who are members of the manorial community. the removal of difficulties as to approvement was, before the statute of merton, not a question of agreement between two persons, but a question as to the relative position of the lord and of the whole body of the tenantry. the lord might possibly settle with every tenant singly, but it seems much more probable that he brought the matter, when it arose, before the whole body with which the management of the village husbandry rested, that is, before the halimote, with its free and unfree tenants. in any case, the influence of the free tenants as recognised by the common law was decisive, and hardly to be reconciled with the usual feudal notions as to the place occupied by the lord in the community. it must be noted that even that order of things which came into being in consequence of the statute contains an indirect testimony as to the power of the village community. the act requires the pasture left to the free tenants to be sufficient, and it may be asked at once, what criterion was there of such a sufficiency, if the number of beasts was not mentioned in the instrument by which the common was held. of course, in case of dispute, a jury had to give a verdict about it, but what had the jury to go by? it was not the actual number of heads of cattle on a tenement that could be made the starting-point of calculation. evidently the size of the holding, and its relation to other holdings, had to be taken into account. but if so, then the legal admeasurement had to conform to the customary admeasurement defined by the community[ ]. and so again the openly recognised law of the kingdom had to be set in action according to local customs, which in themselves had no legally binding force. [rights of common in woods, etc.] besides the land regularly used for pasture, the cattle of the village were sent grazing along the roads[ ] and in the woods[ ]. these last were mostly used for feeding swine. in other respects, also, the wood was subjected to a treatment analogous to that of the pasture land. the right of hunting was, of course, subjected to special regulations, which have to be discussed from the point of view of forest law. but, apart from that right, the wood was managed by the village community according to certain customary rules. every tenant had a right to fell as many young trees as he wanted to keep his house and his hedges in order[ ]. it sometimes happens, that the lord and the homage enter into agreement as to the bigger trees, and for every trunk taken by the lord the tenantry are entitled to take its equivalent[ ]. whenever the right had to be apportioned more or less strictly, the size of the holdings was always the main consideration[ ]. it would be strange to my purpose to discuss the details of common of estovers, of turbary[ ], or of fishery. the chief points which touch upon the problems of social origins are sufficiently apparent in the subject of pasture. the results of our investigation may, i think, be summed up under the following heads:-- . rights of common are either a consequence of the communal husbandry of the manor, or else they proceed from special agreement or long use. . the legal arrangement of commons depends on a customary arrangement, in which free and unfree tenants take equal part[ ]. . the feudal theory of the lord's grant is insufficient to explain the different aspects assumed by rights of common, and especially the opposition between lord and free commoners. chapter iii. rural work and rents. [arrangement of work and rent.] our best means of judging of the daily work in an english village of the thirteenth century is to study the detailed accounts of operations and payments imposed on the tenants for the benefit of a manorial lord. surveys, extents, or inquisitions were drawn up chiefly for the purpose of settling these duties, and the wealth of material they afford enables us to form a judgment as to several interesting questions. it tells directly of the burden which rural workmen had to bear in the aristocratical structure of society; it gives indirectly an insight into all the ramifications of labour and production since the dues received by the lord were a kind of natural percentage upon all the work of the tenants; the combination of its details into one whole affords many a clue to the social standing and history of the peasant classes of which we have been treating. [operations:] [ploughing.] let us begin by a survey of the different kinds of labour duties performed by the dependent holdings which clustered round the manorial centre. foremost stands ploughing and the operations connected with it. the cultivation of the demesne soil of a manor depended largely on the help of the peasantry. by the side of the ploughs and plough-teams owned by the lord himself, the plough-teams of his villains are made to till his land, and manorial extents commonly mention that the demesne portion has to be cultivated by the help of village customs, 'cum consuetudinibus villae[ ].' the duties of every householder in this respect are reckoned up in different ways. sometimes every dependent plough has its number of acres assigned to it, and the joint owners of its team are left to settle between themselves the proportions in which they will have to co-operate for the performance of the duty[ ]. in most cases the 'extent' fixes the amount due from each individual holder. for instance, every virgater is to plough one acre in every week. this can only mean that one acre of the lord's land is reckoned on every single virgate in one week, without any reference to the fact that only one part of the team is owned by the peasant. if, for example, there were four virgaters to share in the ownership of the plough, the expression under our notice would mean that every team has to plough four acres in the week[ ]. but the ploughs may be small, or the virgaters exceptionally wealthy, and their compound plough team may have to cultivate only three acres or even less. the lord in this case reckons with labour-weeks and acres, not with teams and days-work. a third possibility would be to base the reckoning on the number of days which a team or a holder has to give to the lord[ ]. a fourth, to lay on the imposition in one lump by requiring a certain number of acres to be tilled, or a certain number of days of ploughing[ ]. it must be added, that the peasants have often to supplement their ploughing work by harrowing, according to one of these various systems of apportionment[ ]. the duties here described present only a variation of the common 'week-work' of the peasant, its application to a certain kind of labour. they could on occasion be replaced by some other work[ ], or the lord might lose them if the time assigned for them was quite unsuitable for work[ ]. there is another form of ploughing called _gafol-earth_, which has no reference to any particular time-limits. a patch of the lord's land is assigned to the homage for cultivation, and every tenant gets his share in the work according to the size of his holding. gafol-earth is not only ploughed but mostly sown by the peasantry[ ]. a third species of ploughing-duty is the so-called _aver-earth_ or _grass-earth_. this obligation arises when the peasants want more pasture than they are entitled to use by their customary rights of common. the lord may grant the permission to use the pasture reserved for him, and exacts ploughings in return according to the number of heads of cattle sent to the pasturage[ ]. sometimes the same imposition is levied when more cattle are sent to the commons than a holding has a right to drive on them[ ]. it is not impossible that in some cases the very use of rights of common was made dependent on the performance of such duties[ ]. a kindred exaction was imposed for the use of the meadows[ ]. local variations have, of course, to be taken largely into account in all such matters: the distinction between gafol-earth and grass-earth, for instance, though drawn very sharply in most cases, gets somewhat confused in others. manorial records mention a fourth variety of ploughing-work under the name of _ben-earth_, _precariae carucarum_. this is extra work in opposition to the common ploughings described before[ ]. it is assumed that the subject population is ready to help the lord for the tillage of his land, even beyond the customary duties imposed on it. it sends its ploughs three or four times a year 'out of love,' and 'for the asking.' it may be conjectured how agreeable this duty must have been in reality, and indeed by the side of its common denominations, as boon-work and asked-work, we find much rougher terms in the speech of some districts--it is deemed _unlawenearth_ and _godlesebene_[ ]. it must be said, however, that the lord generally provided food on these occasions, and even went so far as to pay for such extra work. other expressions occur in certain localities, which are sometimes difficult of explanation. _lentenearth_[ ], in the manors of ely minster, means evidently an extra ploughing in lent. the same ely records exhibit a ploughing called _filstnerthe_ or _filsingerthe_[ ], which may be identical with the lentenearth just mentioned: a _fastnyngseed_[ ] occurs at any rate which seems connected with the ploughing under discussion. the same extra work in lent is called _tywe_[ ] in the custumal of bleadon, somersetshire. when the ploughing-work is paid for it may receive the name of _penyearth_[ ]. the gloucester survey speaks of the extra cultivation of an acre called radacre, and the ely surveys of an extra rood 'de rytnesse[ ].' i do not venture to suggest an explanation for these last terms; and i need not say that it would be easy to collect a much greater number of such terms in local use from the manorial records. it is sufficient for my purpose to mark the chief distinctions. [reaping.] all the other labour-services are performed more or less on the same system as the ploughings, with the fundamental difference that the number of men engaged in them has to be reckoned with more than the number of beasts. the extents are especially full of details in their descriptions of reaping or mowing corn and grass; the process of thrashing is also mentioned, though more rarely. in the case of meadows (_mederipe_) sometimes their dimensions are made the basis of calculation, sometimes the number of work-days which have to be employed in order to cut the grass[ ]. as to the corn-harvest, every holding has its number of acres assigned to it[ ], or else it is enacted that every house has to send so many workmen during a certain number of days[ ]. if it is said that such and such a tenant is bound to work on the lord's field at harvest-time with twenty-eight men, it does not mean that he has to send out such a number every time, but that he has to furnish an amount of work equivalent to that performed by twenty-eight grown-up labourers in one day; it may be divided into fourteen days' work of two labourers, or into seven days' of four, and so forth. harvest-time is the most pressing time in the year for rural work; it is especially important not to lose the opportunity presented by fine weather to mow and garner in the crop before rain, and there may be only a few days of such weather at command. for this reason extra labour is chiefly required during this season, and the village people are frequently asked to give extra help in connexion with it. the system of _precariae_ is even more developed on these occasions than in the case of ploughing[ ]. all the forces of the village are strained to go through the task; all the houses which open on the street send their labourers[ ], and in most cases the entire population has to join in the work, with the exception of the housewives and perhaps of the marriageable daughters[ ]. the landlord treats the harvesters to food in order to make these exertions somewhat more palatable to them[ ]. these 'love-meals' are graduated according to a set system. if the men are called out only once, they get their food and no drink: these are 'dry requests.' if they are made to go a second time, ale is served to them (_precariae cerevisiae_). the mutual obligations of lords and tenantry are settled very minutely[ ]; the latter may have to mow a particular acre with the object of saying 'thanks' for some concession on the part of the lord[ ]. the same kind of 'requests' are in use for mowing the meadows. the duties of the peasants differ a great deal according to size of their holdings and their social position. the greater number have of course to work with scythe and sickle, but the more wealthy are called upon to supervise the rest, to ride about with rods in their hands[ ]. on the other hand, a poor woman holds a messuage, and need do no more than carry water to the mowers[ ]. [carriage duties.] a very important item in the work necessary for medieval husbandry was the business of carrying produce from one part of the country to the other. the manors of a great lord were usually dispersed in several counties, and even in the case of small landowners it was not very easy to arrange a regular communication with the market. the obligation to provide horses and carts gains in importance accordingly[ ]. these _averagia_ are laid out for short and long distances, and the peasants have to take their turn at them one after the other[ ]. they were bound to carry corn to london or bristol according to the size of their holdings[ ]. special importance was attached to the carriage of the 'farm,' that is of the products designed for the consumption of the lord[ ]. in some surveys we find the qualification that the peasants are not obliged to carry anything but such material as may be put on the fire, i.e. used in the kitchen[ ]. in the manor itself there are many carriage duties to be performed: carts are required for the grain, or for spreading the dung. the work of loading and of following the carts is imposed on those who are not able to provide the implements[ ]. and alongside of the duties of carriage by horses or oxen we find the corresponding manual duty. the 'averagium super dorsum suum' falls on the small tenant who does not own either horses or oxen[ ]. such small people are also made to drive the swine or geese to the market[ ]. the lord and his chief stewards must look sharp after the distribution of these duties in order to prevent wealthy tenants from being put to light duties through the protection of the bailiffs, who may be bribed for the purpose[ ]. it would be hard to imagine any kind of agricultural work which is not imposed on the peasantry in these manorial surveys. the tenants mind the lord's ploughs, construct houses and booths for him, repair hedges and dykes, work in vineyards, wash and shear the sheep[ ], etc. in some cases the labour has to be undertaken by them, not in the regular run of their services, but by special agreement, as it were, in consideration of some particular right or permission granted to them[ ]. also it happens from time to time that the people of one manor have to perform some services in another, for instance, because they use pasture in that other manor[ ]. such 'forinsec' labour may be due even from tenants of a strange lord. by the side of purely agricultural duties we find such as are required by the political or judicial organisation of the manor. peasants are bound to guard and hang thieves, to carry summonses and orders, to serve at the courts of the superior lord and of the king[ ]. [classification of labour-services.] in consequence of the great variety of these labour-services they had to be reduced to some chief and plain subdivisions for purposes of a general oversight. three main classes are very noticeable notwithstanding all variety: the _araturae_, _averagia_, and _manuoperationes_. these last are also called _hand-dainae_ or _daywerke_[ ]; and the records give sometimes the exact valuation of the work to be performed during a day in every kind of labour. sometimes all the different classes are added up under one head for a general reckoning, and without any distinction as to work performed by hand or with the help of horse or ox. among the manors of christ church, canterbury[ ], for instance, we find at borle ' work-days divided into weeks of labour from the virgaters, from the cotters, from the tofters holding small tenements in the fields.' in bockyng the work-days of weeks are reckoned to be . it must be added, that when such a general summing up appears, it is mostly to be taken as an indication that the old system based on labour in kind is more or less shaken. the aim of throwing together the different classes of work is to get a general valuation of its worth, and such a valuation in money is commonly placed by the side of the reckoning. the single day-work yields sometimes only one penny or a little more, and the landlord is glad to exchange this cumbrous and cheap commodity for money-rents, even for small ones. [payments in kind.] we must now proceed to examine the different forms assumed by payments in kind and money: they present a close parallel to the many varieties of labour-service. thirteenth-century documents are full of allusions to payments in kind--that most archaic form of arranging the relations between a lord and his subjects. the peasants give corn under different names, and for various reasons: as _gavelseed_, in addition to the money-rent paid for their land[ ]; as _foddercorn_, of oats for the feeding of horses[ ]; as _gathercorn_, which a manorial servant has to collect or gather from the several homesteads[ ]; as _corn-bole_, a best sheaf levied at harvest-time[ ]. of other provender supplied to the lord's household honey is the most common, both in combs and in a liquid form[ ]. ale is sometimes brewed for the same purpose, and sometimes malt and _braseum_ furnished as material to be used in the manorial farm[ ]. animals are also given in rent, mostly sheep, lambs, and sucking-pigs. the mode of selection is peculiar in some cases. in the christ church (canterbury) manor of monckton each sulung has to render two lambs, and the lord's servant has the right to take those which he pleases, whereupon the owner gets a receipt, evidently in view of subsequent compensation from the other co-owners of the sulung[ ]. if no suitable lamb is to be found, eight pence are paid instead of it as mail (_mala_). on one of the estates of gloucester abbey a freeman has to come on st. peter's and paul's day with a lamb of the value of _d._, and besides, pence in money are to be hung in a purse on the animal's neck[ ]. poultry is brought almost everywhere, but these prestations are very different in their origin. the most common reason for giving capons is the necessity for getting the warranty of the lord[ ]: in this sense the receipt and payment of the rent constitute an acknowledgment on the part of the lord that he is bound to protect his men, and on the part of the peasant that he is the lord's villain. 'wood hens' are given for licence to take a load of wood in a forest; similar prestations occur in connexion with pasture and with the use of a moor for turbary[ ]. at easter the peasantry greet their protectors by bringing eggs: in walton, a manor of st. paul's, london, the custom is said to exist in honour of the lord, and at the free discretion of the tenants[ ]. besides all those things which may be 'put on the fire and eaten,' rents in kind sometimes take the shape of some object for permanent use, especially of some implement necessary for the construction of the plough[ ]. trifling rents, consisting of flowers or roots of ginger, are sometimes imposed with the object of testifying to the lord's seignory; but the payers of such rents are generally freeholders[ ]. i need not dwell long on the enumeration of all the strange prestations which existed during the middle ages, and partly came down to our own time: any reader curious about them will find an enormous mass of interesting material in hazlitt's 'tenures of land and customs of manors.' [money-payments.] in opposition to labour and rents in kind we find a great many payments in money. some of these are said in as many words to have stept into the place of labour services; of mowing, carrying, making hedges[ ], etc. the same may be the case in regard to produce: _barlick-silver_ is paid instead of barley, _fish-silver_ evidently instead of fish, _malt-silver_ instead of malt; a certain payment instead of salt, and so on[ ]. but sometimes the origin of the money rent is more difficult to ascertain. we find, for instance, a duty on sheep, which is almost certainly an original imposition when it appears as _fald-silver_. even so the _scythe-penny_ from every scythe, the _bosing-silver_ from every horse and cart, the _wood-penny_, probably for the use of wood as fuel, must be regarded as original taxes and not quit-rents or commutation-rents[ ]. _pannage_ is paid in the same way for the swine grazing in the woods[ ]. _ward-penny_ appears also in connexion with cattle, but with some special shade of meaning which it is difficult to bring out definitely; the name seems to point to protection, and also occurs in connexion with police arrangements[ ]. [classification of money payments.] i must acknowledge that in a good many cases i have been unable to find a satisfactory explanation for various terms which occur in the records for the divers payments. an attentive study of local usages will probably lead to definite conclusions as to most of them[ ]. from a general point of view it is interesting to notice, that we find already in our records some attempts to bring all the perplexing variety of payments to a few main designations. annual rents are, of course, reckoned out under the one head of 'census.' very obvious reasons suggested the advisability of computing the entire money-proceed yielded by the estate[ ]. it sometimes happens that the general sum made up in this way, fixed as it is at a constant amount, is used almost as a name for a complex of land[ ]. a division of rents into old and new ones does not require any particular explanation[ ]. but several other subdivisions are worth notice. the rent paid from the land often appears separately as _landgafol_ or _landchere_. it is naturally opposed to payments that fall on the person as poll taxes[ ]. these last are considered as a return for the personal protection guaranteed by the lord to his subjects. of the contrast between _gafol_ as a customary rent and _mál_ as a payment in commutation i have spoken already, and i have only to add now, that _gild_ is sometimes used in the same sense as _mál_[ ]. another term in direct opposition to _gafol_ is the latin _donum_[ ]. it seems to indicate a special payment imposed as a kind of voluntary contribution on the entire village. to be sure, there was not much free will to be exercised in the matter; all the dependent people of the township had to pay according to their means[ ]. but the tax must have been considered as a supplementary one in the same sense as supplementary boon-work. it may have been originally intended in some cases as an equivalent for some rights surrendered by the lord, as a _mál_ or _gild_, in fact[ ]. in close connexion with the _donum_ we find the _auxilium_[ ], also an extraordinary tax paid once a year, and distinguished from the ordinary rent. it appears as a direct consequence of the political subjection of the tenantry[ ]: it is, in fact, merely an expression of the right to tallage. our records mention it sometimes as apportioned according to the number of cattle owned by the peasant, but this concerns only the mode of imposition of the duty and hardly its origin[ ]. as i have said already, the _auxilium_ is in every respect like the _donum_. one very characteristic trait of both taxes is, that they are laid primarily on the whole village, which is made to pay a certain round sum as a body[ ]. the burden is divided afterwards between the several householders, and the number of cattle, and more particularly of the beasts of plough kept on the holding, has of course to be taken into account more than anything else. but the manorial administration does not much concern itself with these details: the township is answerable for the whole sum. [payments to state and church.] it is to be added that the payment is sometimes actually mentioned as a political one in direct connexion with 'forinsec' duties towards the king. the burdens which lay on the land in consequence of the requirements of state and church appear not unfrequently in the documents. among those the _scutage_ and _hidage_ are the most important. the first of these taxes is so well known that i need not stop to discuss it. it may be noticed however that in relation to the dependent people scutage is not commonly spoken of; the tax was levied under this name from the barons and the armed gentry, and was mostly transmitted by these to the lower strata of society under some other name, as an aid or a tallage. hidage is historically connected with the old english danegeld system, and in some cases its amount is set out separately from other payments, and the tenants of a manor have to pay it to the bailiff of the hundred and not to the steward. a smaller payment called _ward-penny_ is bound up with it, probably as a substitute for the duty of keeping watch and ward[ ]. in the north the hidage is replaced by _cornage_[ ], a tax which has given rise to learned controversy and doubt; it looks like an assessment according to the number of horns of cattle, _pro numero averiorum_, as our latin extents would say. the church has also an ancient claim on the help of the faithful; the _churchscot_ of saxon times often occurs in the feudal age under the name of _churiset_ or _cheriset_[ ]. it is mostly paid in kind, but may be found occasionally as a money-rent. [questions suggested by a survey of work and rents.] a survey of the chief aspects assumed by the work and the payments of the dependent people was absolutely necessary, in order to enable us to understand the descriptions of rural arrangements which form the most instructive part of the so-called extents. but every survey of terms and distinctions (even if it were much more detailed than the one i am able to present), will give only a very imperfect idea of the obligations actually laid on the peasantry. it must needs take up the different species one by one and consider them separately, whereas in reality they were meant to fit together into a whole. on the other hand it may create a false impression by enumerating in systematic order facts which belonged to different localities and perhaps to different epochs. to keep clear of these dangers we have to consider the deviations of practical arrangements from the rules laid down in the books and the usual combinations of the elements described. [cases where the usual order was not adhered to.] when one reads the careful notices in the cartularies as to the number of days and the particular occasions when work has to be performed for the lord, a simple question is suggested by the minuteness of detail. what happened when this very definite arrangement came into collision with some other equally exacting order? one of the three days of week-work might, for instance, fall on a great feast; or else the weather might be too bad for out-of-doors work. who was to suffer or to gain by such casualties? the question is not a useless one. the manorial records raise it occasionally, and their ways of settling it are not always the same. we find that in some cases the lord tried to get rid of the inconveniences occasioned by such events, or at least to throw one part of the burden back on the dependent population; in barling, for instance, a manor of st. paul's, london[ ], of two feasts occurring in one week and even in two consecutive weeks, one profits to the villains and the other to the lord; that is to say, the labourer escapes one day's work altogether. but the general course seems to have been to liberate the peasants from work both on occasion of a festival and if the weather was exceptionally inclement[ ]. both facts are not without importance: it must be remembered that the number of church festivals was a very considerable one in those days. again, although the stewards were not likely to be very sentimental as to bad weather, the usual test of cold in case of ploughing seems to have been the hardness of the soil--a certain percentage of free days must have occurred during the winter at least. and what is even more to be considered--when the men were very strictly kept to their week-work under unfavourable circumstances, the landlord must have gained very little although the working people suffered much. the reader may easily fancy the effects of what must have been a very common occurrence, when the village householders sent out their ploughs on heavy clay in torrents of rain. the system of customary work on certain days was especially clumsy in such respects, and it is worth notice that in harvest-time the landlords rely chiefly on boon-days. these were not irrevocably fixed, and could be shifted according to the state of the weather. still the week-work was so important an item in the general arrangement of labour-services that the inconveniences described must have acted powerfully in favour of commutation. [relation between the customary system and the arbitrary authority of the lord.] of course, the passage from one system to the other, however desirable for the parties concerned, was not to be effected easily and at once: a considerable amount of capital in the hands of the peasantry was required to make it possible, and another necessary requirement was a sufficient circulation of money. while these were wanting the people had to abide by the old labour system. the facts we have been discussing give indirect proof that there was not much room for arbitrary changes in this system. everything seems ruled and settled for ever. it may happen, of course, that notwithstanding the supposed equality between the economic strength of the different holdings, some tenants are unable to fulfil the duties which their companions perform[ ]. as it was noticed before, the shares could not be made to correspond absolutely to each other, and the distribution of work and payments according to a definite pattern was often only approximate[ ]. again, the lord had some latitude in selecting one or the other kind of service to be performed by his men[ ]. but, speaking generally, the settlement of duties was a very constant one, and manorial documents testify that every attempt by the lord to dictate a change was met by emphatic protests on the part of the peasantry[ ]. the tenacity of custom may be gathered from the fact that when we chance to possess two sets of extents following each other after a very considerable lapse of time, the renders in kind and the labour-services remain unmodified in the main[ ]. one has to guard especially against the assumption that such expressions as 'to do whatever he is bid' or 'whatever the lord commands' imply a complete servility of the tenant and unrestricted power on the part of the lord to exploit his subordinate according to his pleasure. such expressions have been used as a test of the degree of subjection of the villains at different epochs; it has been contended, that the earlier our evidence is, the more complete the lord's sway appears to be[ ]. the expressions quoted above may seem at first glance to countenance the idea, but an attentive and extended study of the documents will easily show that, save in exceptional cases, the earlier records are by no means harder in their treatment of the peasantry than the later. the eleventh century is, if anything, more favourable to the subjected class as regards the imposition of labour-services than the thirteenth, and we shall see by-and-by that the observation applies even more to saxon times. in the light of such a general comparison, we have to explain the above-mentioned phrases in a different way. 'whatever he is bid' applies to the quality and not to the quantity of the work[ ]. it does not mean that the steward has a right to order the peasant about like a slave, to tear him at pleasure from his own work, and to increase his burden whenever he likes. it means simply that such and such a virgater or cotter has to appear in person or by proxy to perform his week-work of three days, or two days, or four days, according to the case, and that it is not settled beforehand what kind of work he is to perform. he may have to plough, or to carry, or to dig trenches, or to do anything else, according to the bidding of the steward. a similar instance of uncertainty may be found in the expression 'without measure[ ]' which sometimes occurs in extents. it would be preposterous to construe it as an indication of work to be imposed at pleasure. it is merely a phrase used to suit the case when the work had to be done by the day and not by a set quantity; if, for instance, a man had to plough so many times and the number of acres to be ploughed was not specified. it is true that such vague descriptions are mostly found in older surveys, but the inference to be drawn from the fact is simply that manorial customs were developing gradually from rather indefinite rules to a minute settlement of details. there is no difference in the main principle, that the dependent householder was not to be treated as a slave and had a customary right to devote part of his time to the management of his own affairs. [the holdings and the population.] another point is to be kept well in view. the whole arrangement of a manorial survey is constructed with the holding as its basis. the names of virgaters and cotters are certainly mentioned for the sake of clearness, but it would be wrong to consider the duties ascribed to them as aiming at the person. john newman may be said to hold a virgate, to join with his plough-oxen in the tillage of twenty acres, to attend at three boon-days in harvest time, and so forth. it would be misleading to take these statements very literally and to infer that john newman was alone to use the virgate and to work for it. he was most probably married, and possibly had grown-up sons to help him; very likely a brother was there also, and even servants, poor houseless men from the same village or from abroad. every householder has a more or less considerable following (_sequela_)[ ], and it was by no means necessary for the head of the family to perform all manorial work in his own person. he had to appear or to send one workman on most occasions and to come with all his people on a few days--the boon-days namely. the description of the _precariae_ is generally the only occasion when the extents take this into account, namely, that there was a considerable population in the village besides those tenants who were mentioned by name[ ]. i need not point out, that the fact has an important meaning. the medieval system, in so far as it rested on the distribution of holdings, was in many respects more advantageous to the tenantry than to the lord. it was superficial in a sense, and from the point of view of the lord did not lead to a satisfactory result; he did not get the utmost that was possible from his subordinates. the factor of population was almost disregarded by it, households very differently constituted in this respect were assumed to be equal, and the tenacity of custom prevented an increase of rents and labour-services in proportion to the growth of resource and wealth among the peasants. some attempts to get round these difficulties are noticeable in the surveys: they are mostly connected with the regulation of boon-works. but these exceptional measures give indirect proof of the very insufficient manner in which the question was generally settled. [stages in the arrangement of duties.] the liabilities of the peasantry take the shape of produce, labour, and money-rents. almost in every manor all three kinds of impositions are to be found split up into a confusing variety of customary obligations. it is out of the question to trace at the present time, with the help of fragmentary and later material, what the original ideas were which underlie these complicated arrangements. but although a reduction to simple guiding principles accounting for every detail cannot be attempted, it is easy to perceive that chance and fancy were not everything in these matters. the several duties are brought together so as to form a certain whole, and some of the aims pursued in the grouping may be perceived even now. [farm-system.] the older surveys often show the operation of a system which is adapted by its very essence to a very primitive state of society; it may be called the farm-system, the word _farm_ being used in the original sense of the saxon _feorm_, food, and not in the later meaning of fixed rent, although these two meanings appear intimately connected in history. the _farm_ is a quantity of produce necessary for the maintenance of the lord's household during a certain period: it may be one night's or week's or one fortnight's farm accordingly. a very good instance of the system may be found in an ancient cartulary of ramsey, now at the british museum, which though compiled in the early thirteenth century, constantly refers to the order of henry ii's time. the estates of the abbey were taxed in such a way as to yield thirteen full farms of a fortnight, and each of these was to be used for the maintenance of the monks through a whole month. the extension of the period is odd enough, and we do not see its reason clearly; it followed probably on great losses in property and income at the time of abbot walter. however this may be, the thirteen fortnights' farms were made to serve all the year round, and to cover fifty-two weeks instead of twenty-six. a very minute description of the single farm is given as it was paid by the manor of ayllington (i.e. elton). every kind of produce is mentioned: flour and bread, beer and honey, bacon, cheese, lambs, geese, chicken, eggs, butter, &c. the price of each article is mentioned in pence, and it is added, that four pounds have to be paid in money. by the side of the usual farm there appears a 'lent' farm with this distinction, that only half as much bacon and cheese has to be given as usual, and the deficiency is to be made up by a money payment. some of the manors of the abbey have to send a whole farm, some others only one half, that is one week's farm, but all are assessed to pay sixteen pence for every acre to be used as alms for the poor[ ]. this description may be taken as a standard one, and it would be easy to supplement it in many particulars from the records of other monastic institutions. the records of st. paul's, london, supply information as to a distribution of the farms at the close of the eleventh century, which covered fifty-two weeks, six days, and five-sixths of a day[ ]. the firmae of st. alban's were reckoned to provide for the fifty-two weeks of the year, and one in advance[ ]. the practice of arranging the produce-rents according to farms was by no means restricted to ecclesiastical management; it occurs also on the estates of the crown, and was probably in use on those of lay lords generally. every person a little conversant with domesday knows the _firmae unius noctis_, at which some of the royal manors were assessed[ ]. in the period properly called feudal, that is in the twelfth and thirteenth centuries, the food-revenue had very often become only the starting-point for a reckoning of money-rents. the st. alban's farms, for example, are no longer delivered in kind; their equivalent in money has taken their place. but the previous state of things has left a clear trace in the division by weeks. altogether it seems impossible to doubt that the original idea was to provide really the food necessary for consumption. one cannot help thinking that such practice must have come from the very earliest times when a saxon or a celtic chieftain got his income from the territory under his sway by moving from one place to another with his retinue and feeding on the people for a certain period. this very primitive mode of raising income and consuming it at the same time may occasionally strike our eye even in the middle of the thirteenth century. the tenants of the abbot of osulveston in donington and byker are bound to receive their lord during one night and one day when he comes to hold his court in their place. they find the necessary food and beverage for him and for his men, provender for his horses, and so forth. if the abbot does not come in person, the homage may settle about a commutation of the duties with the steward or the sergeant sent for the purpose. if he refuses to take money, they must bring everything in kind[ ]. [decay of the farm-system.] this is an exceptional instance: generally the farm has to be sent to the lord's residence, probably after a deduction for the requirements of the manor in which it was gathered. when it had reached this stage the system is already in decay. it is not only difficult to provide for the carriage, but actually impossible to keep some of the articles from being spoilt. bread sent to westminster from some worcestershire possession of the minster would not have been very good when it reached its destination. the step towards money-payments is natural and necessary. before leaving the food-rents we must take notice of one or two more peculiarities of this system. it is obvious that it was arranged from above, if one may use the expression. the assessment does not proceed in this case by way of an estimate of the paying or producing strength of each unit subjected to it, _i.e._ of each peasant household. the result is not made up by multiplying the revenue from every holding by the number of such holdings. the whole reckoning starts from the other end, from the wants of the manorial administration. the requirements of a night or of a week are used as the standard to which the taxation has to conform. this being the case, the correspondence between the amount of the taxes and the actual condition of the tax-payer was only a very loose one. manors of very different size were brought into the same class in point of assessment, and the rough distinctions between a whole farm and half-a-farm could not follow at all closely the variety of facts in real life, even when they were supplemented by the addition of round sums of money. [assessment under the farm-system.] these observations lead at once to important questions; how was the farm-assessment distributed in every single manor, and what was its influence on the duties of the single householder? it seems hardly doubtful, to begin with, that the food-rent changed very much in this respect. originally, when the condition of things was more or less like the osulvestone example, the farm must have been the result of co-operation on the part of all the householders of a township, who had to contribute according to their means to furnish the necessary articles. but the farm of st. paul's, london, even when it is paid in produce, is a very different thing: it is the result of a convention with the firmarius, or may be with the township itself in the place of a firmarius[ ]. it depends only indirectly on the services and payments of the peasantry. part of the flour, bread, beer, etc., may come from the cultivation of the demesne lands; another portion will appear as the proceed of week-work and boon-work performed by the villains, and only one portion, perhaps a very insignificant one, will be levied directly as produce. in this way there is no break between the food-rent system and the labour-system. one may still exist for purposes of a general assessment when the other has already taken hold of the internal arrangement of the manor. [labour-service system.] most of our documents present the labour arrangement in full operation. each manor may be regarded as an organised group of households in which the central body represented by the lord's farm has succeeded in subordinating several smaller bodies to its directing influence. every satellite has a movement of its own, is revolving round its own centre, and at the same time it is attracted to turn round the chief planet, and is carried away in its path. the constellation is a very peculiar one and most significant for the course of medieval history. regarded from the economic standpoint it is neither a system of great farming nor one of small farming, but a compound of both. the estate of the lord is in a sense managed on a great scale, but the management is bound up with a supply and a distribution of labour which depend on the conditions of the small tributary households. it would be impossible now-a-days to say for certain how much of the customary order of week-work and boon-work was derived from a calculation of the requirements of the manorial administration, and how much of it is to be regarded as a percentage taken from the profits of each individual tenant[ ]. both elements probably co-operated to produce the result: the operations performed for the benefit of the lord were ordered in a certain way partly because so many acres had to be tilled, so much hay and corn had to be reaped on the lord's estate; and partly because the peasant virgaters or cotters were known to work for themselves in a certain manner and considered capable of yielding so much as a percentage of their working power. but although we have a compromise before us in this respect, it must be noted that the relation between the parts and the whole is obviously different under the system of labour services from what it was under the farm-system. it has been pointed out that the food-rent arrangement was imposed from above without much trouble being taken to ascertain the exact value and character of the tributary units subjected to it. this later element is certainly very prominent in the customary labour-system, which on the whole appears to be constructed from below. is it necessary to add that this second form of subjection was by no means the lighter one? the very differentiation of the burden means that the aristocratical power of the landlord has penetrated deep enough to attempt an exact evaluation of details. [money-rents system.] i have had occasion so many times already to speak of the process of commutation, that there is no call now to explain the reasons which induced both landlords and peasants to exchange labour for money-rents. i have only to say now that the same remark which applied to the passage from produce 'farms' to labour holds good as to the passage from labour to money payments. there is no break between the arrangements. in a general way the money assessment follows, of course, as the third mode of settling the relation between lord and tenant, and we may say that _rentals_ are as much the rule from the fourteenth century downwards as _custumals_ are the rule in the thirteenth and earlier centuries. but if we take up the domesday of st. paul's of , or the glastonbury inquest of , or even the burton cartulary of the early twelfth century, in every one of these documents we shall find a great number of rent-paying tenants[ ], and even a greater number of people fluctuating, as it were, between labour and rent. in some cases peasants passed directly from the obligation of supplying produce to the payment of corresponding rents in money. the gradual exemption from labour is even more apparent in the records. it is characteristic that the first move is generally a substitution of the money arrangement with the tacit or even the expressed provision that the assessment is not to be considered as permanent and binding[ ]. it remains at the pleasure of the lord to go back to the duties in kind. but although such a retrogressive movement actually takes place in some few cases, the general spread of money payments is hardly arrested by these exceptional instances[ ]. one more subject remains to be discussed. is there in the surveys any marked difference between different classes of the peasantry in point of rural duties? [influence of social distinction on the distribution of duties.] an examination of the surveys will show at once that the free and the servile holdings differ very materially as to services, quite apart from their contrast, in point of legal protection and of casual exactions such as marriage fines, heriots, and the like. the difference may be either in the kind of duties or in their quantity. both may be traced in the records. if we take first the diversities in point of quality we shall notice that on many occasions the free tenants are subjected to an imposition on the same occasion as the unfree, but their mode of acquitting themselves of it is slightly different--they have, for instance, to bring eggs when the villains bring hens. the object cannot be to make the burden lighter; it amounts to much the same, and so the aim must have been to keep up the distinctions between the two classes. it is very common to require the free tenants to act as overseers of work to be performed by the rest of the peasantry. they have to go about or ride about with rods and to keep the villains in order. such an obligation is especially frequent on the boon-days (_precariae_), when almost all the population of the village is driven to work on the field of the lord. sometimes free householders, who have dependent people resident under them, are liberated from certain payments; and it may be conjectured that the reason is to be found in the fact that they have to superintend work performed by their labourers or inferior tenants[ ]. all such points are of small importance, however, when compared with the general opposition of which i have been speaking several times. the free and the servile holdings are chiefly distinguished by the fact that the first pay rent and the last perform labour. [free and servile duties as rent and labour.] whenever we come to examine closely the reason underlying the cases when the classification into servile and free is adopted, we find that it generally resolves itself into a contrast between those who have to serve, in the original sense of the term, and those who are exempted from actual labour-service. being dependent nevertheless, these last have to pay rent. i need not repeat that i am speaking of main distinctions and not of the various details bound up with them. in order to understand thoroughly the nature of such diversities, let us take up a very elaborate description of duties to be performed by the peasants in the manor of wye, kent, belonging to the abbey of battle[ ]. of the sixty-one yokes it contains thirty are servile, twenty-nine are free, and two occupy an intermediate position. the duties of the two chief classes of tenants differ in many respects. the servile people have to pay rent and so have the free, but while the first contribute to make up a general payment of six pounds, each yoke being assessed at seven shillings and five-pence, the free people have to pay as much as twenty-three shillings and seven-pence per yoke. both sets have to perform ploughings, reapings, and carriage duties, but the burden of the servile portion is so much greater in regard to the carriage-work, that the corresponding yokes sometimes get their very name from it, they are _juga averagiantia_, while the free households are merely bound to help a few times during the summer. every servile holding has a certain number of acres of wood assigned to it, or else corresponding rights in the common wood, while the free tenants have to settle separately with the lord of the manor. and lastly, the relief for every unfree yoke is fixed at forty pence, and for every free one is equal to the annual rent. this comparison of duties shows that the peasants called free were by no means subjected to very light burdens: in fact it looks almost as if they were more heavily taxed than the rest. still they were exempted from the most unpopular and inconvenient labour-services. altogether, the study of rural work and rents leads to the same conclusion as the analysis of the legal characteristics of villainage. the period from the conquest onwards may be divided into two stages. in later times, that is from the close of the thirteenth century downwards, the division between the two great classes of tenants and tenements, a contrast strictly legal, is regulated by the material test of the certainty or uncertainty of the service due, and the formal test of the mode of conveyance. in earlier times the classification depends primarily on the economic relation between the manorial centre and the tributary household, labour is deemed servile, rent held to be free. it is only by keeping these two periods clearly distinct, that one is enabled to combine the seemingly conflicting facts in our surveys. if we look at the most ancient of these documents, we shall have to admit that a rent-paying holding is free, nevertheless it would be wrong to infer that when commutation became more or less general, classification was settled in the same way. a servile tenement no longer became free because rent was taken instead of labour; it was still held 'at the will of the lord,' and conveyed by surrender and admittance. when all holdings were fast exchanging labour for rent, the old notions had been surrendered and a new basis for classification found in those legal incidents just mentioned. the development of copyhold belongs to the later period, copyhold being mostly a rent-paying servile tenure. again, if we turn to the earlier epoch we shall have to remember that the contrast between labour and rent is not to be taken merely as a result of commutation. local distinctions are fitted on to it in a way which cannot be explained by the mere assumption that every settlement of a rent appeared in the place of an original labour obligation. the contrast is primordial, as one may say, and based on the fact that the labour of a subject appears directly subservient to the wants and arrangements of the superior household, while the payment of rent severs the connexion for a time and leaves each body to move in its own direction till the day when the tributary has to pay again. [difference in quantity between the impositions of free and unfree population.] there can be no doubt also that the more ancient surveys disclose a difference in point of quantity between free and servile holdings, and this again is a strong argument for the belief that free socage must not be considered merely as an emancipated servile tenancy. where there has been commutation we must suppose that the labour services cannot have been more valuable than the money rent into which they were changed. the free rent into which labour becomes converted is nothing but the price paid for the services surrendered by the lord. it must have stood higher, if anything, than the real value of the labour exchanged, because the exchange entailed a diminution of power besides the giving up of an economic commodity. no matter that ultimately the quit-rents turned out to the disadvantage of the lord, inasmuch as the buying strength of money grew less and less. this was the result of a very long process, and could not be foreseen at the time when the commutation equivalents were settled. and so we may safely lay down the general rule, that when there is a conspicuous difference between the burdens of assessment of free and unfree tenants, such a difference excludes the idea that one class is only an emancipated portion of the other, and supposes that it was from the first a socially privileged one. the peterborough black book, which, along with the burton cartulary, presents the most curious instance of an early survey, describes the services of socmen on the manors of the abbey as those of a clearly privileged tenantry[ ]. the interesting point is, that these socmen are even subjected to week-work and not distinguishable from villains so far as concerns the quality of their services. nevertheless the contrast with the villains appears throughout the cartulary and is substantiated by a marked difference in point of assessment: a socman has to work one or two days in the week when the villain is made to work three or four. three main points seem established by the survey of rural work and rents. . notwithstanding many vexatious details, the impositions to which the peasantry had to submit left a considerable margin for their material progress. this system of customary rules was effectively provided against general oppression. . the development from food-farms to labour organisation, and lastly to money-rents, was a result not of one-sided pressure on the part of the landlords, but of a series of agreements between lord and tenants. . the settlement of the burdens to which peasants were subjected depended to a great extent on distinctions as to the social standing of tenants which had nothing to do with economic facts. chapter iv. the lord, his servants and free tenants. [medieval rural system.] descriptions of english rural arrangements in the age we are studying always suppose the country to be divided into manors, and each of these manors to consist of a central portion called the demesne, and of a cluster of holdings in different tributary relations to this central portion. whether we take the domesday survey, or the hundred rolls, or the custumal of some monastic institution, or the extent of lands belonging to some deceased lay lord, we shall again and again meet the same typical arrangement. i do not say that there are no instances swerving from this beaten track, and that other arrangements never appear in our records. still the general system is found to be such as i have just mentioned, and a very peculiar system it is, equally different from the ancient _latifundia_ or modern plantations cultivated by gangs of labourers working on a large scale and for distant markets, from peasant ownership scattered into small and self-dependent households, and even from the conjunction between great property and farms taken on lease and managed as separate units of cultivation. the characteristic feature of the medieval system is the close connexion between the central and dominant part and the dependent bodies arranged around it. we have had occasion to speak in some detail of these tributary bodies--it is time to see how the lord's demesne which acted as their centre was constituted. [the home-farm.] bracton mentions as the distinguishing trait of the demesne, that it is set aside for the lord's own use, and ministers to the wants of his household[ ]. therefore it is sometimes called in english 'board lands.' the definition is not complete, however, because all land occupied by the owner himself must be included under the name of demesne, although its produce may be destined not for his personal use, but for the market. 'board lands' are only one species of domanial land, so also are the 'husfelds' mentioned in a charter quoted by madox[ ]. this last term only points to its relation to the house, that is the manorial house. and both denominations are noteworthy for their very incompleteness, which testifies indirectly to the restricted area and to the modest aims of domanial cultivation. usually it lies in immediate connexion with the manorial house, and produces almost exclusively for home consumption. this is especially true as to the arable, which generally forms the most important part of the whole demesne land. there is no exit for a corn trade, and therefore everybody raises corn for his own use, and possibly for a very restricted local market. even great monastic houses hold only or acres in the home farm; very rarely the number rises to , and a thousand acres of arable in one manor is a thing almost unheard of[ ]. husbandry on a large scale appears only now and then in places where sheep-farming prevails, in wiltshire for instance. exceptional value is set on the demesne when fisheries are connected with it or salt found on it[ ]. [bockyng, essex.] the following description of bockyng in essex[ ], a manor belonging to the chapter of christ church, canterbury, may serve as an example of the distribution and relative value of demesne soil. the cartulary from which it is drawn was compiled in . the manorial house and close cover five acres. the grass within its precincts which may serve as food for cattle is valued at _d._ a year. corn is also sold there to the value of _d._ a year, sometimes more and sometimes less, according to the quantity sown. the orchard provides fruit and vegetables worth _s._ _d._ a year; the duty levied from the swine gives _d._ the pigeon-house is worth _d._ two mills, _l._ _s._ _d._ a fishery, _d._ a wood called brekyng park, containing acres, and the brushwood there is worth _s._ grass in the wood _d._, because it grows only in a few places. pannage duty from the swine, _s._ another wood called le flox contains acres, and the brushwood is worth _d._ pannage from the swine, _d._ grass, _d._ arable, in all fields, acres, the acre being assessed at _d._ all round. each plough may easily till one acre a day, if four horses and two oxen are put to it. two meadows, one containing eight acres, of which every single acre yields _s._ a year; the other meadow contains seven acres of similar value. pasture in severalty-- acres, at _d._ an acre. of these, acres are set apart for oxen and horses, and for cows. some small particles of pasture leased out to the tenants, _s._ the prior and the convent are lords of the common pasture in bockyng, and may send sheep to these commons, and to the fields when not under crop. value _s._ as important an item in the cultivation of the home farm as the soil itself is afforded by the plough-teams. the treatises on husbandry give very minute observations on their composition and management. and almost always we find the manorial teams supplemented by the _consuetudines villae_, that is by the customary work performed on different days by the peasantry[ ]. as to this point the close connexion between demesne and tributary land is especially clear; but after all that has been said in the preceding chapter it is hardly necessary to add that it was not only the ploughing-work that was carried on by the lord with the help of his subjects. [the demesne and the village.] as a matter of fact, villages without a manorial demesne or without some dependence from it are found only exceptionally and in those parts of england where the free population had best kept its hold on the land, and where the power of the lord was more a political than an economical one (norfolk and suffolk, lincoln, northumberland, westmoreland, etc.[ ]). and there are hardly any cases at all of the contrary, that is of demesne land spreading over the whole of a manor. tillingham, a manor of st. paul's, london, comes very near it[ ]: it contains acres as home farm, and only acres of villain land. but as a set-off, a considerable part of the demesne is distributed to small leaseholders. it must be noted that, as a general rule, the demesne arable of the manor did not lie in one patch apart from the rest, but consisted of strips intermixed with those of the community[ ]. this fact would show by itself that the original system, according to which property and husbandry were arranged in manorial groups, was based on a close connexion between the domanial and the tributary land. we might even go further and point out that the mere facilities of intercourse and joint work are not sufficient to account for this intermixture of the strips of the lord and of the homage. the demesne land appears in fact as a share in the association of the village, a large share but still one commensurate with the other holdings. in two respects this subjection to a higher unit must necessarily follow from the intermixture of strips: inasmuch as the demesne consists of plots scattered in the furlongs of the township, it does not appropriate the best soil or the best situation, but has to gather its component parts in all the varied combinations in which the common holdings have to take theirs. and besides this, the demesne strips were evidently meant to follow the same course of husbandry as the land immediately adjoining them, and to lapse into undivided use with such land when the 'defence' season was over. separate or private patches exempted from the general arrangement are to be found on many occasions, but the usual treatment of demesne land in the thirteenth century is certainly more in conformity with the notion that the lord's land is only one of the shares in the higher group of the village community. ['ministeriality.'] the management of the estate, the collection of revenue, the supervision of work, the police duties incumbent on the manor, etc., required a considerable number of foremen and workmen of different kinds[ ]. great lords usually confided the general supervision of their estates to a _seneschal_, steward or head manager, who had to represent the lord for all purposes, to preside at the manorial courts, to audit accounts, to conduct sworn inquests and extents, and to decide as to the general husbandry arrangements. in every single manor we find two persons of authority. the bailiff or beadle was an outsider appointed by the lord, and had to look to the interests of his employer, to collect rents and enforce duties, to manage the home farm, to take care of the domanial cattle, of the buildings, agricultural implements, etc. these functions were often conferred by agreement in consideration of a fixed rent, and in this case the steward or beadle took the name of _firmarius_[ ]. by his side appears the reeve, or _praepositus_, nominated from among the peasants of a particular township, and mostly chosen by them[ ]. manorial instructions add sometimes that no villain has a right to hold aloof from such an appointment, if it is conferred on him[ ]. the reeve acts as the representative of the village community, as well in regard to the lord as on public occasions. he must, of course, render help to the steward in all the various duties of the latter. the reeve has more especially to superintend the performance of labour imposed on the peasantry. manorial ploughings, reapings, and the other like operations are conducted by him, sometimes with the help of the free tenants in the place. of the public duties of the reeve we have had occasion to speak. four men, acting as representatives of the village, accompany him. next after the reeve comes, on large estates, the _messor_, who takes charge of the harvest, and sometimes acts as collector of fines imposed for the benefit of the lord[ ]. the _akermanni_ or _carucarii_ are the leaders of the unwieldy ploughs of the time[ ], and they are helped by a set of drivers and boys who have to attend to the oxen or horses[ ]. shepherds for every kind of cattle are also mentioned[ ], as well as keepers and warders of the woods and fences[ ]. in the suffolk manors of bury st. edmund's we find the curious term _lurard_ to designate a person superintending the hay harvest[ ]. by the side of a numerous staff busy with the economic management of the estate, several petty officers are found to be concerned with the political machinery of the manor. the duty to collect the suitors of the hundred and of the county court is sometimes fulfilled by a special 'turnbedellus[ ]'. a 'vagiator' (vadiator?) serves writs and distrains goods for rents[ ]. the carrying of letters and orders is very often treated as a service imposed on particular tenements. it must be noted that sometimes all these duties are intimately connected with those of the husbandry system and imposed on all the officers of the demesne who own horses[ ]. a third category is formed by the house-servants, who divide among themselves the divers duties of keeping accounts, waiting on the lord personally, taking charge of the wardrobe, of the kitchen, etc. the military system and the lack of safety called forth a numerous retinue of armed followers and guards. all-in-all a mighty staff of _ministeriales_, as they were called in germany, came into being. in england they are termed sergeants and servants, _servientes_. in glastonbury abbey there were sixty-six servants besides the workmen and foremen employed on the farm[ ]. such a number was rendered necessary by the grand hospitality of the monastery, which received and entertained daily throngs of pilgrims. in bury st. edmund's the whole staff was divided into five departments, and in each department the employments were arranged according to a strict order of precedence[ ]. [formation of the class.] the material for the formation of this vast and important class was supplied by the subject population of the estates. the gloucester manorial instruction enjoins the stewards to collect on certain days the entire grown-up population and to select the necessary servants for the different callings. it is also enacted that the men should not be left without definite work, that in case of necessity they should be moved from one post to the other[ ], etc. the requirements of the manorial administration and of the lord's household opened an important outlet for the village people. part of the growing population thus found employment outside the narrow channel of rural arrangements. the elder or younger brothers, as it might be, took service at the lord's court. the husbandry treatises of the thirteenth century go further and mention hired labourers as an element commonly found on the estate. we find, for instance, an elaborate reckoning of the work performed by gangs of such labourers hired for the harvest[ ]. in documents styled 'minister's accounts' we may also find proof, that from the thirteenth century downwards the requirements of the lord's estate are sometimes met by hiring outsiders to perform some necessary kind of work. these phenomena have to be considered as exceptional, however, and in fact as a new departure. [remuneration of the class.] the officers and servants were remunerated in various ways. sometimes they were allowed to share in the profits connected with their charges. the swine-herd of glastonbury abbey, for instance, received one sucking-pig a year, the interior parts of the best pig, and the tails of all the others which were slaughtered in the abbey[ ]. the chief scullion (_scutellarius_) had a right to all remnants of viands,--but not of game,--to the feathers and the bowels of geese[ ]. again, all the household and workmen constantly employed had certain quantities of food, drink, and clothing assigned to them[ ]. of one of the glastonbury clerks we hear that he received one portion (_liberacio_) as a monk and a second as a servant, and that by reason of this last he was bound to provide the monastery with a goldsmith[ ]. those of the foremen and labourers of estates who did not belong to the immediate following of the lord and did not live in his central court received a gratification of another kind. they were liberated from the labour and payments which they would have otherwise rendered from their tenements[ ]. the performance of the specific duties of administration took the place of the ordinary rural work or rent, and in this way the service of the lord was feudalised on the same principle as the king's service--it was indissolubly connected with land-holding. [importance of the 'ministeriality.'] in manorial extents we come constantly across such exempted tenements conceded without any rural obligations or with the reservation of a very small rent. it is important to notice, that such exemptions, though temporary and casual at first, were ultimately consolidated by custom and even confirmed by charters. a whole species of free tenements, and a numerous one, goes back to such privileges and exemptions granted to servants[ ]. and so this class of people, in the formation of which unfree elements are so clearly apparent, became one of the sources in the development of free society. such importance and success are to be explained, of course, by the influence of this class in the administration and economic management of the estates belonging to the secular and ecclesiastical aristocracy. it is very difficult at the present time to realise the responsibility and strength of this element. we live in a time of free contract, credit, highly mobilised currency, easy means of communication, and powerful political organisation. there is no necessity for creating a standing class of society for the purpose of mediating between lord and subject, between the military order and the industrial order. every feature of the medieval system which tended to disconnect adjoining localities, to cut up the country into a series of isolated units, contributed at the same time to raise a class which acted as a kind of nervous system, connecting the different parts with a common centre and establishing rational intercourse and hierarchical relations. the _libertini_ had to fulfil kindred functions in the ancient world, but their importance was hardly so great as that of medieval sergeants or _ministeriales_. we may get some notion of what that position was by looking at the personal influence and endowments of the chief servants in a great household of the thirteenth century. the first cook and the gatekeeper of a celebrated abbey were real magnates who held their offices by hereditary succession, and were enfeoffed with considerable estates[ ]. in glastonbury five cooks shared in the kitchen-fee[ ]. the head of the cellar, the gatekeeper, and the chief shepherd enter into agreements in regard to extensive plots of land[ ]. they appear as entirely free to dispose of such property, and at every step we find in the cartularies of glastonbury abbey proofs of the existence of a numerous and powerful 'sergeant' class. john of norwood, abbot of bury st. edmund's, had to resort to a regular _coup d'état_ in order to displace the privileged families which had got hold of the offices and treated them as hereditary property[ ]. in fact the great 'sergeants' ended by hampering their lords more than serving them. and the same fact of the rise of a 'ministerial' class may be noticed on every single estate, although it is not so prominent there as in the great centres of feudal life. the whole arrangement was broken by the substitution of the 'cash nexus' for more ancient kinds of economic relationship, and by the spread of free agreements: it is not difficult to see that both these facts acted strongly in favour of driving out hereditary and customary obligations. [free tenants in the manor.] we have considered the relative position of the unfree holdings, of the domanial land around which they were grouped, and of the class which had to put the whole machinery of the manor into action. but incidentally we had several times to notice a set of men and tenements which stood in a peculiar relation to the arrangement we have been describing: there were in almost every manor some free tenants and some free tenements that could not be considered as belonging to the regular fabric of the whole. they had to pay rents or even to perform labour services, but their obligations were subsidiary to the work of the customary tenants on which the husbandry of the manorial demesne leaned for support. from the economic point of view we can see no inherent necessity for the connexion of these particular free tenements with that particular manorial unit. the rent, large or small, could have been sent directly to the lord's household, or paid in some other manor without any perceptible alteration in favour of either party; the work, if there was such to perform, was without exception of a rather trifling kind, and could have been easily dispensed with and commuted for money. several reasons may be thought of to explain the fact that free tenements are thus grouped along with the villain holdings and worked into that single unit, the manor. it may be urged that the division into manors is not merely and perhaps not chiefly an economic one, but that it reflects a certain political organisation, which had to deal with and to class free tenants as well as servile people. it may be conjectured that even from the economic point of view, although the case of free tenants would hardly have called the manorial unit into existence, it was convenient to use that class when once created for the grouping of villain land and work: why should the free tenants not join the divisions formed for another purpose but locally within easy reach and therefore conveniently situated for such intercourse with the lord as was rendered necessary by the character of the tenement? again, the grouping of free tenants may have originated in a time when the connexion with the whole was felt more strongly than in the feudal period; it may possibly go back to a community which had nothing or little to do with subjection, and in which the free landowners joined for mutual support and organisation. it is not impossible to assume, on the other hand, that in many cases the free tenant was left in the manorial group because he had begun by being an unfree and therefore a necessary member of it. all such suppositions seem _prima facie_ admissible and reasonable enough, and at the same time it is clear, that by deciding in favour of one of them or by the relative importance assigned to each we shall very materially influence the solution of interesting historical problems. in order to appreciate rightly the position of the free tenements in the manor we have to examine whether these tenements are all of one and the same kind or not, and this must be done not from the legal standpoint whence it has already been reviewed, but in connexion with the practical management of the estate. i think that a survey of the different meanings which the term bears in our documents must lead us to recognise three chief distinctions: first there is free land which once formed part of the demesne but has been separated from it; then there is the land held by villagers outside the regular arrangements of the rural community, and lastly there are ancient free holdings of the same shape as the servile tenements, though differing from the latter in legal character. each class will naturally fall into subdivisions[ ]. [free tenements carved out of the demesne.] under the first head it is to be observed that domanial land very often lost its direct connexion with the lord's household, and was given away to dependent people on certain conditions. one of the questions addressed to the juries by the glastonbury inquest of was prompted by this practice: it was asked what demesne land had been given out under free agreement or servile conditions, and whether it was advantageous to keep to the arrangement or not. one of the reasons which lay at the root of the process has been already touched upon. grants of domanial land occur commonly in return for services rendered in the administration of the manor: reeves, ploughmen, herdsmen, woodwards are sometimes recompensed in this manner instead of being liberated from the duties incumbent on their holding. a small rent was usually affixed to the plot severed from the demesne, and the whole arrangement may be regarded as very like an ordinary lease. an attenuated form of the same thing may be noticed when some officer or servant was permitted to use certain plots of domanial land during the tenure of his office. it happened, for instance, that a cotter was entrusted to take care of a team of oxen belonging to the lord or obliged to drive his plough. he might be repaid either by leave to use the manorial plough on his own land on specified occasions, or else by an assignment to him of the crop on certain acres of the home farm[ ]. such privileges are sometimes granted to villagers who do not seem to be personally employed in the manorial administration, but such cases are rare, and must be due to special reasons which escape our notice. it is quite common, on the other hand, to find deficiencies in the normal holdings made up from the demesne, e.g. a group of peasants hold five acres apiece in the fields, and one of the set cannot receive his full share: the failing acres are supplied by the demesne. even an entire virgate or half-virgate may be formed in this way[ ]. sometimes a plot of the lord's land is given to compensate the bad quality of the peasant's land[ ]. of course, such surrenders of the demesne soil were by no means prompted by disinterested philanthropy. they were made to enable the peasantry to bear its burdens, and may-be to get rid of patches of bad soil or ground that was inconveniently situated[ ]. in a number of cases these grants of demesne are actual leases, and probably the result of hard bargains. [inland.] however this might be, we find alongside of the estate farmed for the lord's own account a great portion of the demesne conceded to the villagers. the term 'inland,' which ought properly to designate all the land belonging directly to the lord, is sometimes applied to plots which have been surrendered to the peasantry, and so distinguishes them from the regular customary holdings[ ]. such concessions of demesne land were not meant to create freehold tenements. their tenure was precarious, the right of resumption was more expressly recognised in the case of such plots than in that of any other form of rural occupation, but the rights thus acquired tended to become perpetual, like everything else in this feudal world; and as they were founded on agreement and paid for with money rents, their transformation into permanent tenures led to an increase of free tenements and not of villainage. we catch a glimpse of the process in the domesday of st. paul's. in a covenant was made between the chapter of the cathedral and its villagers of the manor of beauchamp in essex: in consequence of the agreement all the concessions of demesne land which had been made by the farmers were confirmed by the chapter. the inquests show that those who farmed the estates had extensive rights as to the use of domanial land, but their dealings with the customary tenants were always open to a revision by the landlords. a confirmation like this beauchamp one transferred the plot of demesne land into the class of free tenements, and created a tenure defensible at law[ ]. all such facts increase in number and importance with the increase of population: under its pressure the area of direct cultivation for the lord is gradually lessened, and in many surveys we find a sort of belt formed around the home farm by the intrusion of the dependent people into the limits of the demesne[ ]. the domesday of st. paul's is especially instructive on this point. every estate shows one part of the lord's land in the possession of the peasants; sometimes the 'dominicum antiquitus assisum' is followed by 'terrae de novo traditae[ ].' [leases.] a second group of free tenements consists of plots which did not belong either to the demesne or to the regular holdings in the fields, but lay by the side of these holdings and were parcelled out in varying quantity and under various conditions. we may begin by noticing the growth of leases. there is no doubt that the lease-system was growing in the thirteenth century, and that it is not adequately reflected in our documents. an indirect proof of this is given by the fact, that legal practice was labouring to discover means of protection for possession based on temporary agreement. the writ 'quare ejecit infra terminum' invented by william raleigh between and protected the possession of the 'tenant for term of years' who formerly had been regarded as having no more than a personal right enforceable by an action of covenant[ ]. manorial extents are sparing in their notices of leases because their object is to picture the distribution of ownership, and temporary agreements are beyond their range. but it is not uncommon to find a man holding a small piece of land for his life at a substantial rent. in this case his tenure is reckoned freehold, but still he holds under what we should now call a lease for life; the rent is a substantial return for the land that he has hired. that english law should regard these tenants under leases for life as freeholders, should, that is, throw them into one great class with tenants who have heritable rights, who do but military service or nominal service, who are in fact if not in name the owners of the land, is very remarkable; hirers are mingled with owners, because according to the great generalisation of english feudalism every owner is after all but a hirer. still we can mark off for economic purposes a class of tenants whom we may call 'life-leaseholders,' and we can see also a smaller class of leaseholders who hold for terms of years[ ]. they often seem to owe their existence to the action of the manorial bailiffs or the farmers to whom the demesne has been let. we are told that such and such a person has 'entered' the tenement by the leave of such and such a farmer or bailiff, or that the tenement does not belong to the occupier by hereditary right, but by the bailiff's precept[ ]. remarks of that kind seem to mean that these rent-paying plots, liberated from servile duties, were especially liable to the interference of manorial officers. limits of time are rarely mentioned, and leases for life seem to be the general rule[ ]. the tenure is only in the course of formation, and by no means clearly defined. one does not even see, for instance, how the question of implements and stock was settled--whether they were provided by the landlord or by the tenant. [forlands.] we feel our way with much greater security in another direction. the fields of the village contain many a nook or odd bit which cannot be squeezed into the virgate arrangement and into the system of work and duties connected with it. these '_subsecivae_,' as the romans would have said, were always distributed for small rents in kind or in money[ ]. the manorial administration may also exclude from the common arrangement entire areas of land which it is thought advantageous to give out for rent. those who take it are mostly the same villagers who possess the regular holdings, but their title is different; in one case it is based on agreement, in the other on custom[ ]. plots of this kind are called _forlands_[ ]. in close connexion with them we find the _essarts_ or _assarts_--land newly reclaimed from the waste, and therefore not mapped out according to the original plan of possession and service. the surveys often mark the different epochs of cultivation--the old and the new essarts[ ]. the documents show also that the spread of the area under cultivation was effected in different ways; sometimes by a single settler with help from the lord[ ], and sometimes by the entire village, or at any rate by a large group of peasants who club together for the purpose[ ]. in the first case there was no reason for bringing the reclaimed space under the sway of the compulsory rotation of crops or the other regulations of communal agriculture. in the second, the distribution of the acres and strips among the various tenants was proportioned to their holdings in the ancient lands of the village. the rents on essart land seem very low, and no wonder: everywhere in the world the advance of cultivation has been made the starting-point of privileged occupation and light taxation. the roman empire introduced the _emphyteusis_ as a contract in favour of the pioneers of cultivation, the french feudal law endowed the _hôtes_ (_hospites_) on newly reclaimed land with all kinds of advantages. english practice is not so explicit on this point, but it is not difficult to gather from the surveys that it was not blind to the necessity of patronising agricultural progress and encouraging it by favourable terms. of _mol-land_ i have already spoken in another chapter. i will only point out now that this class of tenements appears to have been a very common one. thirteenth-century surveys often describe certain holdings in two different ways--on the supposition of their paying rent, and also on that of their rendering labour-services; when they pay rent they pay so much, when they supply labour they supply so much. by the side of such holdings, which are wavering, as it were, between the two systems, we find the _terra assisa_ or _ad censum_. this class, to which molland evidently belongs, is distinguished from free tenure by the fact that its rent is regarded as a manorial arrangement; there is no formal agreement and no charter, and therefore no action before the king's courts to guard against disseisin or increase of services. in practice the difference is not felt very keenly, and these tenements gradually came to be regarded as 'free' in every sense. a characteristic feature of the movement may be noticed in the terms '_socagium ad placitum_' and '_socagium villani_[ ].' these expressions occur in the documents, although they are not very common. it would be hard to explain them otherwise than from the point of view indicated just now. the tenement is paying a fixed and certain rent and therefore _socage_, but it is not defended by feoffment and charter; it is not recognised by law, and therefore it remains _at the will_ of the lord and unfree[ ]. the grant of a charter would raise it to the legal standing of free land. [ancient freeholds.] every student of manorial documents will certainly be struck by one well-marked difference between villain tenements and free tenements as described in the extents and surveys. the tenants in villainage generally appear arranged into large groups, in which every man holds, works, and pays exactly as his fellows; so that when the tenement and services of some one tenant have been described we then read that the other tenants hold similar tenements and owe similar services. on the other hand, the freeholds seem scattered at random without any definite plan of arrangement, parcelled up into unequal portions, and subjected to entirely different duties. one man holds ten acres and pays three shillings for them; another has eight and a half acres and gives a pound of pepper to his lord; a third is possessed of twenty-three acres, pays _s._ _d._, and sends his dependants to three boonworks; a fourth brings one penny and some poultry in return for his one acre. the regularity of the villain system seems entirely opposed to the capricious and disorderly phenomena of free tenure. and this fact seems naturally connected with some remarkable features of social organisation. no wonder that free land is cut up into irregular plots: we know that it may be divided and accumulated by inheritance and alienation, whereas villain land is held together in rigid unity by the fact that it is, properly speaking, the lord's and not the villain's land. besides, all the variations of free tenure which we have discussed hitherto have one thing in common, they are produced by express agreement between lord and tenant as to the nature and amount of services required from the tenant. whether we take the case of a villain receiving a few acres in addition to his holding, or that of a servant recompensed by the grant of a privileged plot, or that of a peasant confirmed in the possession of soil newly reclaimed from the waste, or that of a bondman who has succeeded in liberating his holding from the burdensome labour service of villainage, in all these instances we come across the same fundamental notion of a definite agreement between lord and tenant. and again, the capricious aspect of free tenements seems well in keeping with the fact that they are produced by separate and private agreements, by consecutive grants and feoffments, while the villain system of every manor is mapped out at one stroke, and managed as a whole by the lord and his steward. this contrast between the two arrangements may even seem to widen itself into a difference between a communal organisation which is servile, and a system of freeholding which is not communal. all these inferences are natural enough, and all have been actually drawn. a close inspection of the surveys will, however, considerably modify our first impressions, and suggest conclusions widely different from those which i have just now stated. the importance of the subject requires a detailed discussion, even at the risk of tediousness. i shall take my instances from the hundred rolls, as from a survey which reflects the state of things in central counties and gives an insight into the organisation of secular as well as ecclesiastical estates. we need not dwell much on the observation that the servile tenements sometimes display no perfect regularity. sometimes the burdens incumbent on them are not quite equal. sometimes again the holdings themselves are not quite equal. in fulborne, cambridgeshire, e.g., the villains of alan de la zuche are assessed very irregularly[ ], although their tenements are described as virgates and half-virgates. of course, the general character of the virgate system remains unaltered by these exceptional deviations, which may be easily explained by the consideration that the social order was undergoing a process of change. the disruption of some of the villain holdings and the modification of certain duties are perhaps less strange than the fact that such alterations should be so decidedly exceptional. still, the occurrence of irregularities even within the range of villainage warns us not to be too hasty in our inferences about free tenements; it shows, at any rate, that irregularities may well arise even where there has once been a definite plan, and that it is worth while to enquire whether some traces of such an original plan may not still be discovered amidst the apparent disorder of free tenements. [free virgates.] and a little attention will show us many cases in which free tenements are arranged on the virgate system. there is hardly any need for quotations on this point: the hundred rolls of all the six counties of which we possess surveys, supply an unlimited number of instances. true, fundamental divisions of land and service may often be obscured and confused by the existence of plots which do not fit into the system; but as in the case of servile tenements we occasionally find irregularities, so in the case of free tenements we often see that below the superficial irregularities there lie traces of an ancient plan. the manor of ayllington (elton), huntingdonshire, belonging to the abbey of ramsey, presents a good example in point[ ]. it is reckoned to contain thirteen hides and a half, each hide comprising six virgates, and each virgate twenty-four acres. the actual distribution of the holdings squares to a fraction with this computation, if we take into the reckoning the demesne, the free and the villain tenements. three hides are in the lord's hand, one is held by a large tenant, john of ayllington, eleven virgates and a half by other freeholders, forty-two virgates and a half by the villains; the grand total being exactly thirteen hides. the numerous cotters are not taken into account, and evidently left 'outside the hides' (extra hidam); this is a very common thing in the surveys. if we neglect them, and turn to the holdings in the 'hidated' portion of the manor, we shall notice that the greater part of the free tenements are arranged on the same system as the servile tenements. we find six free tenants with a virgate apiece, one with half a virgate, three with a virgate and a half, and three jointly possessed of two virgates. in contrast with this principal body of tenants stand several small freeholders endowed with irregular plots reckoned in acres and so much varying in size that it is quite impossible to arrange them according to any plan, not to speak of the virgate system. but these small tenants are all sub-tenants enfeoffed by the principal freeholders whose own tenements are distributed into regular agrarian unity. it is easy to see that even when the stock of free tenancies stood arranged according to a definite plan, deviations from this plan would easily arise owing to new feoffments made by the lord out of the demesne land or out of the waste[ ]. what i am concerned to say is, not that the hundred rolls show a distribution of free holdings quite as regular as that of the servile tenements, but that amidst all the irregularities of the freehold plots we frequently come across unmistakable traces of a system similar to that which prevailed on villain soil. these traces are not always of the same kind, and present various gradations. in a comparatively small number of instances the duties imposed on the shareholders are equal, or nearly so; much more often the rent and labour rendered by them to the lord vary a great deal, although their tenements are equal. the ayllington instance, quoted above, belongs to the former class, but the proportionate distribution of duties is somewhat obscured by the fact that part of them is reckoned in labour. the normal rent is computed at six shillings per virgate[ ], though there are a few noticeable exceptions, but the duty of ploughing is imposed according to two different standards, and it is not easy to reduce these to unity. the freeholders of one group have to plough eight acres per virgate for the lord, while for the members of the other group the ploughing work is reckoned in the same way as in the case of the villains, each placing his team at the disposal of the lord one day of every week from michaelmas to the st of august, four weeks being excepted in honour of christmas, easter, and trinity[ ]. ravenston, in buckinghamshire, is a much clearer example. twelve villains hold of the prior of ravenston twelve acres each, and their service is worth eighteen shillings per holding; four villains hold six acres each, and their service is valued at nine shillings. one free tenant has twelve acres and pays sixteen shillings; six have six acres each, and pay seven shillings. there are three other tenants whose duties cannot be brought within the system[ ]. the portion of fulborne, in cambridgeshire, belonging to baldwin de maneriis, may also serve as an illustration of an almost regular distribution of land and service among the freeholders[ ]. instances in which the duties, although not exactly, are still very nearly equal, are very frequent. in radewelle, bedfordshire, the mean rent of the six is two shillings per half-virgate, although the villains perform service to the amount of eight shillings per virgate[ ]. bidenham, bedfordshire, also presents an assessment of four shillings per free virgate[ ]. in that part of fulborne which is owned by alan de la zuche the virgates and half-virgates of the free holders are variously rented; but twelve shillings per half-virgate is of common occurrence[ ], while in the fee of maud passelewe we find only four and five shillings as the rent for the half-virgate[ ]. papworth anneys exhibits a ferdel of seven and a half acres, for which ten to twelve shillings are paid[ ]. as to the cases in which the service varies a great deal, although the land is held in shares, i need not give quotations because they are to be found on every page of the printed hundred rolls. we may say, in conclusion, that the process of disruption acts much more potently in the sphere of free holding than it does in regard to villainage; but that it has by no means succeeded in destroying all regularity even there. [free shareholders.] thus, even among the freeholders, landholding is often what i shall take leave to call 'shareholding,' now, whatever ultimate explanation we may give of this fact, it has one obvious meaning. that part of the free population which holds in regular shares is not governed entirely by the rules of private ownership, but is somehow implicated in the village community. bovates and virgates exist only as parts of carucates or hides, and the several carucates or hides themselves fit together, inasmuch as they suppose a constant apportionment of some kind. two sets of important questions arise from this proposition, both intimately connected with each other, although they suggest different lines of enquiry. we may start from an examination of the single holding, and ask whether its regular shape can be explained by the requirements of its condition or by survivals of a former condition. or again, we may start from the whole and inquire whether the equality the elements of which we detect is equality in ownership or equality in service. let us take up the first thread of the inquiry. [origins of free shareholding.] how can we account for the occurrence of regular 'shareholding' among the freeholders? two possibilities have to be considered: the free character of the tenements may be newly acquired and the 'shareholding' may be a relic of a servile past; or, on the other hand, the freehold character of the tenements may be coeval with the 'shareholding,' and in this latter case we shall have to admit the existence of freeholds which from of old have formed an element in the village community. in the first of these cases again we shall have to distinguish between two suppositions:--servile tenements have become free; this may be due either to some general measure of enfranchisement, a lord having preferred to take money rents in lieu of the old labour services, and these money rents being the modern equivalent for those old services, or else to particular and occasional feoffments made in favour of those who, for one reason or another, have earned some benefit at the lord's hand. to put it shortly, we may explain the phenomenon either by a process of commutation such as that which turned 'workland' into 'molland,' or by special privileges which have exempted certain shares in the land from a general scheme of villainage; or, lastly, by the existence of freeholds as normal factors in the ancient village community. let us test these various suppositions by the facts recorded in our surveys. at first sight it may seem possible to account for the freehold virgates by reference to the process which converted 'workland' into 'molland.' we have seen above that if a lord began to demand money instead of work, the result might, in some cases, be the evolution of new tenures which gradually lost their villain character and became recognised as genuine freeholds. and no doubt one considerable class of cases can be explained by this process. but a great many instances seem to call for some other explanation. to begin with, the mere acceptance of rent in lieu of labour did not make the tenement a freehold; servile tenements were frequently put _ad censum_[ ], and it seems difficult to believe that many lords allowed a commutation of labour for rent to have the effect of turning villainage into freehold. another difficulty is found on the opposite side. what force kept the shares together when they had become free? why did they not accumulate and disperse according to the chances of free development? it may be thought that custom, and express conditions of feoffment, must have acted against disruption. i do not deny the possibility, but i say that it is not easy to explain the very widely diffused phenomenon of free shareholding by a commutation which tended to break up the shares and to make them useless for the purposes of assessment. still i grant that these considerations, though they should have some weight, are not decisive, and i insist chiefly on the following argument. the peculiar trait which distinguishes 'molland' is the transition from labour service to money rent, and the rent is undoubtedly considered as an equivalent for the right to labour services which the lord abandons. it must be admitted that in some cases the lord may have taken less than the real equivalent in order to get such a convenient commodity as money, or because for some reason or another he was in need of current coin. still i am not afraid to say that, in a general way, commutation supposes an exchange against an equivalent. indeed the demand for money rents was considered rather as increasing than as decreasing the burden incumbent on the peasantry[ ]. now, although it would be preposterous to try and make out in every single case whether the rent of the free virgate is an adequate equivalent for villain services or not, there is a very sufficient number of instances in which a rough reckoning may be made without fear of going much astray[ ]. and if we attempt such a reckoning we shall be struck by the number of cases in which the rent of the free virgate falls considerably short of what it yielded by the virgate of the villain. we have seen that in ravenston, bedfordshire, the villain service is valued at eight shillings per virgate, and that the free assessment amounts only to four shillings. in thriplow, cambridgeshire, the villains perform labour duties valued at _s._ _d._ per bovate, the freeholders are assessed variously; but there is a certain number among them which forms, as it were, the stock of that class, and their average rent is _s._ _d._ per bovate[ ]. in tyringham, buckinghamshire, the villain holding is computed at six acres and one rood, and its service at five shillings; the free virgates have a like number of acres and pay various rents, but almost without exception less than the villains[ ]. in croxton, cambridgeshire, there are customers with twenty acres, and others with ten acres; the first have to pay ten shillings and to assist at four boonworks. the free holders are possessed of plots of irregular size, and their rent is also irregular; but on the average much lower than that of the customers[ ]. let it be noted that the customary tenants have commuted their labour services into money payments, and, in fact, they are to be considered as molmen in the first stage of development. still, their payments are computed on a different scale from those of the free. in brandone, warwickshire, the typical villain, william bateman, pays for his virgate _s._ _d._, and sends one man to work twice a week from the th of june until the st of august, and thence onward his man has to work two days one week and three days the next. the free half-virgate merely pays five shillings, and does suit to the manorial court. this last point makes no difference, because the villain had to attend the manorial court quite as regularly as the freeholder, and indeed more regularly, because he was obliged to serve on inquests[ ]. in bathekynton, warwickshire, the difference in favour of the free is also noticeable, but not so great[ ]. and these are by no means exceptional cases. nothing is more common than to find free tenements held by trifling services, and whatever we may think of single cases, it would be absurd to explain such arrangements in the aggregate as the results of a bargain between lord and serfs. it is evident, therefore, that a reference to 'molland,' to a commutation of labour into rent, does not suit these cases[ ]. can we explain these cases of 'free shareholding' by feoffments made to favoured persons? we have seen that the lord used to recompense his servants by grants of land and that he favoured the spread of cultivation by exacting but a light rent from newly reclaimed land. such transactions would undoubtedly produce free tenements held on very advantageous terms, but still they seem incapable of solving our problem. tenements created by way of beneficial feoffment are in general easily recognised. the holdings of servants and other people endowed by favour are always few and interspersed among the plots of the regular occupiers of the land, be they free or serfs. the 'essarted' fields are sometimes numerous, but usually cut up into small strips and as it were engrafted on the original stock of tenements. altogether privileged land mostly appears divided into irregular plots and reckoned by acres and not by shares. and what we have to account for is a vast number of instances in which what seem to be some of the principal and original shares in the land are held freely and by comparatively light services. i do not think that we can get rid of a very considerable residue of cases without resorting to the last of the suppositions mentioned above. we must admit that some of the freeholders in the hundred rolls are possessed of shares in the fields not because they have emerged from serfdom, but because they were from the first members of a village community over which the lord's power spread. it would be very hard to draw absolute distinctions in special cases, because the terminology of our records does not take into account the history of tenure and only indicates net results. but a comparison of facts _en bloc_ points to at least three distinct sources of the freehold virgates. some may be due to commutation, others to beneficial feoffments, but there are yet others which seem to be ancient and primitive. the traits which mark these last are 'shareholding' and light rents. the light rents do not look like the result of commutation, the 'shareholding' points to some other cause than favours bestowed by the lord. we shall come to the same conclusion if we follow the other line of our inquiry. it may be asked, whether the community into which the share is made to fit should be thought of primarily as a community in ownership or a community in assessment, whether the shares are constructed for the purpose of satisfying equal claims or for the purpose of imposing equal duties? the question is a wide one, much wider than the subject immediately in hand, but it is connected with that subject and some of the material for its solution must be taken up in the course of our present inquiry. i have been constantly mentioning the assessment of free tenements, their rents and their labour services. the question of their weight as compared with villain services has been discussed, but i have not hitherto taken heed of the varying and irregular character of these rents and services. but the variety and irregularity are worthy of special notice. one of the most fundamental differences between the free and servile systems is to be found in this quarter. the villains are equalised not only as regards their shares in the fields, but also as regards their duties towards the lord; indeed, both facts appear as the two sides of one thing. the virgate of the villain is quite as much, if not more, a unit of assessment as it is a share of the soil. matters look more complex in the case of free land. as i have said before, there are instances in which the free people are not only possessed of equal shares but also are rented in proportion to those shares. in much the greater number of instances, however, there is no such proportion. all may hold virgates, but one will pay more and the other less; one will perform labour duties, and the other not; one will pay in money, and the other bring a chicken, or a pound of pepper, or a flower. whatever we may think of the gradual changes which have distorted conditions that were originally meant to be equal, it is impossible to get rid of the fact that, in regard to free tenements, equal shares do not imply equal duties or even duties of one and the same kind. one of two things, either the shares exist only as a survival of the servile arrangement out of which the free tenements may have grown, or else they exist primarily for the purpose not of assessing duties but of apportioning claims. in stating these possibilities i must repeat what i said before, that it would be quite wrong to bring all the observed phenomena under one head. i do not intend in the least to deny that the freer play of economic and legal forces within the range of free ownership must have produced combinations infinitely more varying, irregular and complicated than those which are to be found in villainage. a large margin must be allowed for such modifications which dispersed and altered the duties that were originally proportioned to shares. but a few simple questions will serve to show that other elements must be brought into the reckoning. why should the disruptive tendency operate so much more against proportionate assessment than against the distribution into shares itself; in other words, why are equal tenements so much commoner than equal rents? if shareholding and equal rents were indissolubly connected as the two sides of one thing, or even as cause and effect, why should one hold its ground when the other had disappeared, and how could the dependent element remain widely active when the principal one had lost its meaning? if the discrepancies between rent and shares had been casual, we might try to explain them entirely by later modifications. but these discrepancies are a standing feature of the surveys, and it seems to me that we can hardly escape the inference that shareholding has its _raison d'être_ quite apart from the duties owed to the lord, and in this case we have to look to the communal arrangement of proprietary rights for its explanation; it was a means of giving to every man his due. if this principle is granted, all the observable facts fall into their right places. one can easily imagine how free holdings came to exist within the village community in spite of their loose connexion with the manor. in regard to duties, they were practically outside the community; not so as to proprietary rights and the agricultural arrangements proceeding from them, for example such arrangements as affected the rotation of crops, the use of commons and fallow pasture, the setting up of hedges, the repair of dykes, etc. there is no real contradiction between the facts, that in relation to the lord every free shareholder was, as it were, bound by a separate and private agreement, while in relation to the village he had to conform to communal rule. this last remark may require some further development. the striking differences between the duties of the several freeholders of one manor seem to show that these people were not enfeoffed by the lord at the same time and under the same conditions. if a is in every respect a fellow of b, and still has to pay twice as much as b, it is clear that his relation to the lord has been settled under different circumstances from those which governed the settlement of b's position. now, from the point of view of later law this meant that the two freeholds were created each by a special feoffment. but this would be a very formal and inadequate way of considering the case. very often the differences might be produced by subsequent arrangements which, though not giving rise to new title, destroyed the original uniformity of condition. often again we may suspect that the relation between lord and tenant had its origin not really in a gift of land made by the former to the latter but in a submission made by the latter to the former. i make bold to prefer this view, chiefly on account of those trifling and indeed fictitious duties which are constantly found in the surveys[ ]. they can only have one meaning--that of 'recognitions[ ].' trifling in themselves, they establish the subordinate relation of one owner to the other; and although their imposition must be considered from the formal standpoint of feudal law as the result of a feoffment, it is clear that their real foundation must often have been a submission to patronage. the subject is a wide one and includes all kinds of free tenure, communal as well as other. when a knight was enfeoffed by a monastery in consideration of some infinitesimal payment, there might be several reasons for such a transaction. the abbot may have thought it good policy to acquire the support of a considerable person, he may have been forced to give the land and only glad to obtain some recognition, however trifling, of the gift; or again, he may have made a beneficial feoffment in return for a sum of ready money paid by way of gersuma or fine, but he may also have extended his supremacy over a piece of land which did not belong to him originally at all. even in feudal times this could be done by means of a fictitious lawsuit ending in 'a final concord'; or even simply by an instrument of quit claim and feoffment without any suit[ ]. at the time when feudalism was only settling itself, in the twelfth and thirteenth centuries, this must have been a common thing, even if we do not take into account the saxon practice of 'commendation.' however this may be, the trifling duties imposed on freeholds lead to the inference that the agreement between lord and tenant had been made on the basis of the latter's independent right, and not on that of the lord's will and power. they testify to a subjection of free people and not to the liberation of serfs. and as they are found constantly allied with shareholding, we have to say that they imply manorial relations superimposed on a community which, if not entirely free, contained free elements within it. the manorial duties are more varied and capricious than are the shares just because they are a later growth. i should not like to leave this intricate inquiry without testing its results by yet another standard. i have been trying to prove two things: that some of the feudal freeholds are ancient freeholds, not liberated from servitude but originally based on the recognised right of the holders; that such ancient freeholds were included in the communal arrangement of ownership, although the assessment of their duties was not communal. to what extent are these propositions supported by an analysis of that admittedly ancient tenure, the tenure of the socmen? we must look chiefly to the 'free' socmen; but i may be allowed, on the strength of the chapter on ancient demesne, to take the bond socmen also into account. let us take the manor of chesterton, in cambridgeshire[ ]. it is royal, but let out in feefarm to the prior of barnwell, and its men make use of the _parvum breve de recto_. there is one free tenant of eighty-eight acres holding _de antiquitate_ and the scholars of merton hold forty-four acres freely. they have clearly taken the place of some freeman, whether by purchase or by gift i do not know; they are bound to perform ploughings and to carry corn. both tenements are worthy of notice because charters are not mentioned and still the holdings are set apart from the rest. in the one case the tenure is expressly stated to be an ancient one, and presumably the title of the other tenement is of the same kind. the number of acres is peculiar and points to some agrarian division of which eighty-eight and forty-four were fractions or multiples. the bulk of the population are described as customers. they used to hold half-virgates, it is said, but some of them have sold part of their land according to the custom of the manor. and so their tenements have lost their original regularity of construction, although it seems possible to fix the average holdings at twelve or fifteen acres. anyhow, it is impossible to reduce them to fractions of eighty-eight; for some reason or another, the reckoning is made on a different basis. the duties vary a good deal, and it would be even more difficult to conjecture what the original services may have been than to make out the size of the virgate. the example is instructive in many ways. it is a stepping-stone from villainage to socage, or rather to socman's tenure. there can be no question of differences of feoffment. the manorial power is fully recognised, and on the other hand the character of ancient demesne is also conspicuous with its protection of the peasantry. and still the whole fabric is giving way--the holdings get dispersed and the service loses its uniformity. all these traits are a fair warning to those who argue from the irregularity of free tenements and the inequality of their rents against the possibility of their development out of communal ownership. here is a well-attested village community; its members hold by custom and have not changed their condition either for the better or for the worse in point of title. later agencies are at work to distort the original arrangement--a few steps more in that direction and it would be impossible to make out even the chief lines of the system. stanton, in cambridgeshire, is a similar case[ ]. i would especially direct the attention of the reader to the capricious way in which the services are assessed. and still the titles of the tenants are the result not of various grants but of manorial custom applied to the whole community. i repeat, that irregularity in the size of holdings and in the services that they owe is no proof that these holdings have not formed part of a communal arrangement or that their free character (if they have a free character) must be the result of emancipation; these irregularities are found on the ancient demesne where there has been no enfranchisement or emancipation, and where on the other hand the tenants have all along been sufficiently 'free' to enjoy legal protection in their holdings. if we have to say so much with regard to ancient demesne and bond socmen, we must not wonder that free socmen are very often placed in conditions which it would be impossible to reduce to a definite plan. on the fee of robert le noreys, in fordham[ ], we find some scattered free tenants burdened with entirely irregular rents, four villains holding eighteen acres each and subjected to heavy ploughing work, three socmen of twenty acres each paying a rent of _s._ _d._ per holding, and obliged to assist at reaping and to bring chicken, one socman of nine acres paying _d._, one of seven acres also assessed at _d._, two of eleven acres paying _d._, etc. it is no cause for wonder that such instances occur at the end of the thirteenth century. it is much more wonderful that, in a good many cases, we are still well able to perceive a great deal of the original regularity. swaffham prior, in cambridgeshire, is a grand example of an absolutely regular arrangement in a community of free socmen[ ]. the prior of ely holds it for three hides and has acres on his home-farm. the rest is divided among sixteen free socmen paying _s._ each and performing various labour services. these services have been considerably increased by the prior. mixed cases are much more usual--i mean cases in which the original regularity has suffered some modifications, though a little attention will discover traces of the ancient communal arrangement[ ]. on the whole, i think that the notices of socmen's tenure in the hundred rolls are especially precious, because they prove that the observations that we have made as regards freehold generally are not merely ingenious suggestions about what may conceivably have happened. there is undoubtedly one weak point in those observations, which is due to the method which we are compelled to adopt. it is difficult, if not impossible, to classify the actual cases which come before us, to say--in this case freehold is the result of commutation, in that case the lord has enfeoffed a retainer or a kinsman, while in this third case, the freehold virgate has always been freehold. the edge of the inquiry is blunted, if i may so say, by the vagueness of terminological distinctions, and we must rely upon general impressions. the socman's tenure, on the contrary, stands out as a clear case, and a careful analysis of it abundantly verifies the conclusions to which we have previously come by a more circuitous route. it seems to me that the general questions with which we started in our inquiry may now be approached with some confidence. the relation of free tenancies to the manorial system turns out to be a complex one. the great majority of such tenements appears as a later growth engrafted on the system when it was already in decay. commutation of services, the spread of cultivation over the waste, and the surrender of portions of the demesne to the increasing dependent population, must largely account for the contrast between domesday and the hundred rolls. but an important residue remains, which must be explained on the assumption that in many cases the shares of the community were originally distributed among free people who had nothing or little to do with manorial work. three conclusions have been arrived at in this chapter. . the home-farm, though the necessary central unit of the manorial group, did not, as a rule, occupy a large area, and the break-up of feudalism tended to lessen its extension in favour of the dependent population. . the peculiar feature of medieval husbandry--the grouping of small households round an aristocratic centre--entailed the existence of a large class engaged in collecting revenue, superintending work, and generally conducting the machinery by which the tributary parts were joined with their centre. . the position of free tenements within the manor may be ascribed to one of three causes: (_a_) they have been the tenements of serfs, but, in consequence either of some general commutation or of special feoffments, they have become free; or (_b_) their connexion with the manor has all along been rather a matter of jurisdiction than a matter of proprietary right, that is to say, they form part of the manor chiefly because they are within the scope of the manorial court; or (_c_) they represent free shares in a village community upon which the manorial structure has been superimposed. chapter v. the manorial courts. [the village community.] the communal organisation of the village is made to subserve the needs of manorial administration. we feel naturally inclined to think and to speak of the village community in opposition to the lord and to notice all points which show its self-dependent character. but in practice the institution would hardly have lived such a long life and played such a prominent part if it had acted only or even chiefly as a bulwark against the feudal owner. its development has to be accounted for to a great extent by the fact that lord and village had many interests in common. they were natural allies in regard to the higher manorial officers. the lord had to manage his estates by the help of a powerful ministerial class, but there was not much love lost between employers and administrators, and often the latent antagonism between them broke out into open feuds. if it is always difficult to organise a serviceable administration, the task becomes especially arduous in a time of undeveloped means of communication and of weak state control. it was exceedingly difficult to audit accounts and to remove bad stewards. the strength and self-government of the village group appeared, from this point of view, as a most welcome help on the side of the owner[ ]. he had practically to surrender his arbitrary power over the peasant population and their land, he had to conform to fixed rules as to civil usage, manorial claims and distribution of territory; but the common standards established by custom did not only hamper his freedom of disposition, they created a basis on which he could take his stand above and against his stewards. he had precise arrangements to go by in his supervision of his ministers, and there was something more than his own interest and energy to keep guard over the maintenance of these forms: the village communities were sure to fight for them from beneath. the facilities for joint action and accumulation of strength derived from communal self-government vouched indirectly for the preservation of the chief capital invested by the lord in the land: it was difficult for the steward to destroy the economic stays of the villainage. [the village and the manorial officers.] there are many occasions when the help rendered by the village communities to the lord may be perceived directly. i need hardly mention the fact that the surveys, which form the chief material of our study, were compiled in substance by sworn inquests, the members of which were considered as the chief representatives of the community, and had to give witness to its lore. the great monastic and exchequer surveys do not give any insight into the mode of selection of the jurors: it may be guessed with some probability that they were appointed for the special purpose, and chosen by the whole court of the manor. in some cases the ordinary jurors of the court, or chief pledges, may have been called upon to serve on the inquest. there is another point which it is impossible to decide quite conclusively, namely, whether questions about which there was some doubt or the jurors disagreed were referred to the whole body of the court. but, although we do not hear of such instances in our great surveys, it is surely an important indication that the extant court-rolls constantly speak of the whole court deciding questions when the verdict of ordinary jurors seemed insufficient. and such reserved cases were by no means restricted to points of law; very often they concerned facts of the same nature as those enrolled in the surveys[ ]. [village officers.] on a parallel with the stewards and servants appointed by the lord, although in subordination to them, appear officers elected by the village. as we have seen, the manorial beadle was matched by the communal reeve, and a like contrast is sometimes found on the lower degrees[ ]. in exceptional cases the lord nominates the reeve, although he still remains the chief representative of village interests and the chief collector of services. but in the normal course the office was elective, and curious intermediate forms may be found. for instance, the village selects the messarius (hayward), and the lord may appoint him reeve[ ]. this is a point, again, which shows most clearly the intimate connexion between the interests of the lord and those of the village. the peasants become guarantors for the reeve whom they chose. a formula which comes from gloucester abbey requires, that only such persons be chosen as have proved their capacity to serve by a good conduct of their own affairs: all shortcomings and defects are to be made good ultimately by the rural community that elected the officer, and no excuses are to be accepted unless in cases of exceptional hardship[ ]. the economic tracts of the thirteenth century state the same principle in even a more explicit manner. [communal liability.] from the manorial point of view the whole village is responsible for the collection of duties. there are payments expressly imposed on the whole. such is the case with the yearly auxilium or donum. the partition of these between the householders is naturally effected in a meeting of the villagers[ ]. most services are laid on the virgaters separately. but they are all held answerable for the regularity and completeness with which every single member of the community performs his duties. as to free holdings, it is sometimes noticed especially to what extent they are subjected to the general arrangement: whether they participate with the rest in payments, and whether the tenants have to work in the same way as the villains[ ]. very often the documents point out that such and such a person ought to take part in certain obligations but has been exempted or fraudulently exempts himself, and that the village community has to bear a relative increase of its burdens[ ]. a glastonbury formula orders the steward to make inquiries about people who have been freed from the performance of their services in such a way that their responsibility has been thrown on the village[ ]. but it would be very wrong to assume that the rural community could act only in the interest of the lord. its solidarity is recognised in matters which do not concern him, or even which call forth an opposition between him and the peasantry. [village and manor.] i have already spoken of the curious fact that the village is legally recognised as a unit, separated from the manor although existing within it. when the reeve and the four men attend the sheriff's tourn or the eyre, they do not represent the lord only, but also the village community. part of their expenses are borne by the lord and part by their fellow villagers[ ]. the documents tell us of craftsmen who have to work for the village as well as for the lord[ ]. on a parallel with services due to the landowner, we find sometimes kindred services reserved for the village community[ ]. if a person has been guilty of misdemeanours and is subjected to a special supervision, this supervision applies to his conduct in regard both to the lord and to the fellow villagers[ ]. no doubt the relations of the village to its lord are much more fully described in the documents than the internal arrangement of the community, but this could not be otherwise in surveys compiled for the use of lords and stewards. even the chance indications we gather as to these internal arrangements are sufficient to give an insight into the powerful ties of the village community. [the village as a juristic person.] indeed, the rural settlement appears in our records as a 'juridical person.' the court rolls of brightwaltham, edited for the selden society by mr. maitland, give a most beautiful example of this. the village of brightwaltham enters into a formal agreement with the lord of the manor as to some commons. it surrenders its rights to the lord in regard to the wood of hemele, and gets rid in return of the rights claimed by the lord in estfield and in a wood called trendale[ ]. nothing can be more explicit: the village acts as an organised community; it evidently has free disposition as to rights connected with the soil; it disposes of these rights not only independently of the lord, but in an exchange to which he appears as a party. we see no traces of the rightless condition of villains which is supposed to be their legal lot, and a powerful community is recognised by the lord in a form which bears all the traits of legal definition. in the same way the annals of dunstable speak of the seisin of the township of toddington[ ], and of a feoffment made by them on behalf of the lord. i have only to say in addition to this summing up of the subject, that the quasilegal standing of the villains in regard to the lord appears with special clearness when they stand arrayed against him as a group and not as single individuals. we could guess as much on general grounds, but the self-dependent position assumed by the 'communitas villanorum' of brightwaltham is the more interesting, that it finds expression in a formal and recorded agreement. [the village as a farmer.] we catch a glimpse of the same phenomenon from yet another point of view. it is quite common to find entire estates let to farm to the rural community settled upon them[ ]. in such cases the mediation of the bailiff might be dispensed with; the village entered into a direct agreement with the lord or his chief steward and undertook a certain set of services and payments, or promised to give a round sum. such an arrangement was profitable to both parties. the villains were willing to pay dearly in order to free themselves from the bailiff's interference with their affairs; the landowner got rid of a numerous and inconvenient staff of stewards and servants; the rural life was organised on the basis of self-government with a very slight control on the part of the lord. such agreements concern the general management of manors as well as the letting of domain land or of particular plots and rights[ ]. of course there was this great disadvantage for the lord, that the tie between him and his subjects was very much loosened by such arrangements, and sometimes he had to complain that the conditions under which the land was held were materially disturbed under the farmer-ship of the village. it is certain, that in a general way this mode of administration led to a gradual improvement in the social status of the peasantry. [the village and agricultural arrangements.] one great drawback of investigations into the history of medieval institutions consists in the very incomplete manner in which the subject is usually reflected in the documents. we have to pick up bits of evidence as to very important questions in the midst of a vast mass of uninteresting material, and sometimes whole sides of the subject are left in the shade, not by the fault of the inquirer, but in consequence of disappointing gaps in the contemporary records. even conveyancing entries, surrenders, admittances, are of rare occurrence on some of the more ancient rolls, and the probable reason is, that they were not thought worthy of enrolment[ ]. as for particulars of husbandry they are almost entirely absent from the medieval documents, and it is only on the records of the sixteenth and yet later centuries that we have to rely when we look for some direct evidence of the fact that the manorial communities had to deal with such questions[ ]. and so our knowledge of these institutions must be based largely on inference. but even granting all these imperfections of the material, it must be allowed that the one side of manorial life which is well reflected in the documents--the juridical organisation of the manor--affords very interesting clues towards an understanding of the system and of its origins. [collegiate decisions and seignorial power.] let us repeat again, that the management of the manor is by no means dependent on capricious and onesided expressions of the lord's will. on the contrary, every known act of its life is connected with collegiate decisions. notwithstanding the absolute character of the lord with regard to his villains taken separately, he is in truth but the centre of a community represented by meetings or courts. not only the free, but also the servile tenantry are ruled in accordance with the views and customs of a congregation of the tenants in their divers classes. there can be no doubt that the discretion of the lord was often stretched in exceptional cases, that relations based on moral sense and a true comprehension of interests often suffered from violence and encroachment. but as a general rule, and with unimportant exceptions, the feudal system is quite as much characterised by the collegiate organisation of its parts as by their monarchical exterior. the manorial courts were really meetings of the village community under the presidency of the lord or of his steward. [village courts.] it is well known that later law recognises three kinds of seignorial courts: the leet, the court baron, and the customary court. the first has to keep the peace of the king, the others are concerned with purely manorial affairs. the leet appears in possession of a police and criminal jurisdiction in so far as that has not been appropriated by the king's own tribunals--its parallel being the sheriff's tourn in the hundred. the court baron is a court of free tenants entrusted with some of the conveyancing and the petty litigation between them, and also with the exercise of minor franchises. the customary court has in its charge the unfree population of the manor. in keeping with this division the court baron consists according to later theory of a body of free suitors which is merely placed under the presidency of the steward, while in the customary court the steward is the true and only judge, and the copyholders, customary tenants or villains, around him are merely called up as presenters. [court leet.] the masterly investigations of mr. maitland, from which any review of the subject must start, have shown conclusively, that this latter doctrine, as embodied in coke, for instance, draws distinctions and establishes definitions which were unknown to earlier practice. the leet became a separate institution early enough, although its name is restricted to one province--norfolk--even at the time of the hundred rolls[ ]. the foundation of the court was laid by the frank-pledge system and the necessity of keeping it in working order. we find the leet court sometimes under the names 'curia visus franci plegii,' or 'visus de borchtruning[ ],' and it appears then as a more solemn form of the general meeting. it is held usually twice a year to register all the male population from twelve years upwards, to present those who have not joined the tithings, and sometimes to elect the heads or representatives of these divisions--the 'capitales plegii[ ].' sometimes the tithing coincides with the township, is formed on a territorial basis, as it were, so that we may find a village called a tithing[ ]. this leads to the inference, that the grouping into tens was but an approximate one, and this view is further supported by the fact that we hear of bodies of twelve along with those of ten[ ]. [view of frank-pledge.] as to attending the meeting, a general rule was enforced to that effect, that the peasantry must attend in person and not by reason of their tenure[ ]. but as it was out of the question to drive all the men of a district to the manorial centres on such days, exceptions of different kinds are frequent[ ]. besides the women and children, the personal attendants of the lord get exempted, and also shepherds, ploughboys, and men engaged in driving waggons laden with corn. servants and aliens were considered as under the pledge of the person with whom they were staying. [communal accusation.] the aim of its whole arrangement was to ensure the maintenance of peace, and therefore everybody was bound on entering the tithing to swear, not only that he would keep the peace, but that he would conceal nothing which might concern the peace[ ]. it is natural that such a meeting as that held for the view of frank-pledge should begin to assume police duties and a certain criminal jurisdiction. mr. maitland has shown how, by its intimate connexion with the sheriff's tourn, the institution of frank-pledge was made to serve the purpose of communal accusation in the time of henry ii. the assize of clarendon ( ) gave the impulse in regard to the sheriff's court, and private lords followed speedily on the same line, although they could not copy the pattern in all its details, and the system of double presentment described by britton and fleta proved too cumbersome for their small courts with only a few freeholders on them. in any case the jurisdiction of the court leet is practically formed in the twelfth century, and the quo warranto inquiries of the thirteenth only bring out its distinctions more clearly[ ]. [court baron and customary court.] the questions as to the opposition between court baron and customary court are more intricate and more important. mr. maitland has collected a good deal of evidence to prove that the division did not exist originally, and that we have before us in the thirteenth century only one strictly manorial court, the 'halimotum.' i may say, that i came to the same conclusion myself in the russian edition of the present work quite independently of his argument. indeed a somewhat intimate acquaintance with the early court rolls must necessarily lead to this doctrine. if some distinctions are made, they touch upon a difference between ordinary meetings and those which were held under exceptional circumstances and attended by a greater number of suitors than usual. the expression 'libera curia' which meets us sometimes in the documents is an exact parallel with that of 'free gallows,' and means a court held freely by the lord and not a court of free men. mr. maitland adds, that he has found mention of a court of villains and one of knights, but that he never came across a court of barons in the sense given in later jurisprudence to the term 'court baron.' here i must put in a trifling qualification which does not affect his main position in the least. the introduction to the selden society's second volume, which is our greatest authority on this subject, mentions a case when the halimot was actually divided on the principle laid down by coke and later lawyers generally. i mean the case of steyning, where the abbot holds a separate court for free tenants and another for his villains. the instance belongs to the time of the edwards, but it is marked as an innovation and a bad one[ ]. it shows, however, that the separation of the courts was beginning to set in. the steyning case is not quite an isolated one. i have found in the hundred rolls the expression _sockemanemot_ to designate a court attended by free sokemen[ ], and it may be suggested that the formation of the so-called court baron may have been facilitated by the peculiar constitution and customs of those courts where the unfree element was almost entirely absent. the danish shires and kent could not but exercise a certain influence on the adjoining counties. however this might be, the general rule is, undoubtedly, that no division is admitted, and that all the suitors and affairs are concentrated in the one manorial court--the _halimot_. [the halimot.] it met generally once every three weeks, but it happens sometimes that it is called together without a definite limit of time at the pleasure of the lord[ ]. cases like that of the manors of the abbey of ramsey, in which the courts are summoned only twice a year, are quite exceptional, and in the instance cited the fact has to be explained by the existence of an upper court for these estates, the court of the honour of broughton[ ]. the common suitors are the peasants living within the manor--the owners of holdings in the fields of the manor. in important trials, when free men are concerned, or when a thief has to be hanged, suitors are called in from abroad--mostly small free tenants who have entered into an agreement about a certain number of suits to the court[ ]. these foreign suitors appear once every six weeks, twice a year, for special trials upon a royal writ, for the hanging of thieves[ ], etc. the duty of attending the court is constantly mentioned in the documents. it involved undoubtedly great hardships, expense, and loss of time: no wonder that people tried to exempt themselves from it as much as possible[ ]. charters relating to land provide for all manner of cases relating to suit of court. we find it said, for instance, that a tenant must make his appearance on the next day after getting his summons, even if it was brought to him at midnight[ ]. when a holding was divided into several parts, the most common thing was that one suit remained due from the whole[ ]. all these details are by no means without importance, because they show that fiscal reasons had as much to do with the arrangement of these meetings as real interests: every court gave rise to a number of fines from suitors who had made default. [procedure of the halimot.] the procedure of the halimot was ruled by ancient custom. all foreign elements in the shape of advocates or professional pleaders were excluded. such people, we are told by the manorial instructions, breed litigation and dead-letter formalism, whereas trials ought to be conducted and judged according to their substance[ ]. another ceremonial peculiarity of some interest concerns the place where manorial courts are held. it is certain that the ancient gemóts were held in the open air, as mr. gomme shows in his book on early folk-mots. and we see a survival of the custom in the meeting which used to be held by the socmen of stoneleigh on motstowehill[ ]. but in the feudal period the right place to hold the court was the manorial hall. we find indeed that the four walls of this room are considered as the formal limit of the court, so that a man who has stept within them and has then gone off without sufficient reason is charged with contempt of court[ ]. indeed, the very name of 'halimot' can hardly be explained otherwise than as the moot held in the hall[ ]. the point is of some interest, because the hall is not regarded as a purely material contrivance for keeping people protected against the cold and the rain, but appears in close connexion with the manor, and as its centre and symbol. [the halimot and agriculture.] we hear very little of husbandry arrangements made by the courts[ ], and even of the repartition of duties and taxes[ ]. entries relating to the election of officers are more frequent[ ], but the largest part of the rolls is taken up by legal business of all sorts. [presentments.] the entire court, and sometimes a body of twelve jurors, present those who are guilty of any offence or misdemeanour. ploughmen who have performed their ploughing on the lord's land badly, villains who have fled from the fee and live on strange soil, a man who has not fulfilled some injunction of the lord, a woman who has picked a lock appended to the door of her cottage by a manorial bailiff, an inveterate adulterer who loses the lord's chattels by being fined in the ecclesiastical courts--all these delinquents of very different kinds are presented to be punished, and get amerced or put into the stocks, according to the nature of their offences. it ought to be noticed that an action committed against the interests of the lord is not punished by any onesided act of his will, or by the command of his steward, but treated as a matter of legal presentment. the negligent ploughman is not taken to task directly by the bailiff or any other overseer, but is presented as an offender by his fellow-peasants, and according to strict legal formality. on the other hand, the entries are worded in such a way that the part played by the court is quite clear only as to the presenting of misdeeds, while the amercement or punishment is decreed in some manner which is not specified exactly. we read, for instance, in a roll of the abbey of bec how 'the court has presented that simon combe has set up a fence on the lord's land. therefore let it be abated.... the court presented that the following had encroached on the lord's land, to wit, william cobbler, maud robins, widow (fined _d._), john shepherd (fined _d._).... therefore they are in mercy[ ].' who has ordered the fence to be thrown down, and who has imposed the fines on the delinquents? the most natural inference seems to be that the penalties were imposed by the lord or the presiding officer who represented him in the court. but it is by no means impossible that the court itself had to decide on the penalty or the amount of the amercement after first making the presentment as to the fact. its action would merely divide itself into two independent decisions. such a procedure would be a necessity in the case of a free tenant who could not be fined at will; and there is nothing to show that it was entirely different in regard to the servile tenantry. when the lord interferes at pleasure this is noted as an exceptional feature[ ]. it is quite possible, again, that the amercement was imposed on the advice or by a decision of certain suitors singled out from the rest as persons of special credit, as in a case from the same manorial rolls of bec[ ]. it is hardly necessary to draw very precise conclusions, as the functions of the suitors do not appear to have been sharply defined. but for this very reason it would be wrong to speak of the onesided right of the lord or of his representative to impose the penalty. [civil jurisdiction.] the characteristic mixture of different elements which we notice in the criminal jurisdiction of the manorial court may be seen also if we examine its civil jurisdiction. we find the halimot treating in its humble region all the questions of law which may be debated in the courts of common law. seisin, inheritance, dower, leases, and the like are discussed, and the pleading, though subject to the custom of the manor, takes very much the shape of the contentions before the royal judges. now this civil litigation is interesting from two points of view: it involves statements of law and decisions as to the relative value of claims. in both respects the parties have to refer to the body of the court, to its assessors or suitors. the influence of the 'country' on the judgment goes further here than in the common law courts, because there is no independent common law to go by, and the custom of the manor has generally to be made out by the manorial tenants themselves. and so a party 'puts himself on his country,' not only in order to decide some issue of fact, but also in regard to points of customary law. inquisitions are made and juries formed quite as much to establish the jurisprudence of the court as to decide who has the better claim under the said jurisprudence. theoretically it is the full court which is appealed to, but in ordinary cases the decision rests with a jury of twelve, or even of six. the authority of such a verdict goes back however to the supposed juridical sense or juridical knowledge of the court as a body. now it cannot be contested that such an organisation of justice places all the weight of the decision with the body of the suitors as assessors. the presiding officer and the lord whom he represents have not much to do in the course of the deliberation. if we may take up the comparison which mr. maitland has drawn with german procedure[ ], we shall say that the 'urtheilfinder' have all the best of it in the trial as against the 'richter.' this 'richter' is seemingly left with the duties of a chairman, and the formal right to draw up and pronounce a decision which is materially dependent on the ruling of the court. but a special reserve of equity is left with the lord, and in consequence of its operation we find some decisions and sentences altered, or their execution postponed[ ]. i have to endorse one more point of mr. mainland's exposition, namely, his view of the presentment system as of a gradual modification of the original standing of the manorial suitors as true assessors of the court. through the influence of the procedure of royal courts, on the one hand, of the stringent classifications of the tenantry in regard to status on the other, the presenters were gradually debased, and legal learning came to maintain that the only judge of a customary court was its steward. but a presentment of the kind described in the manorial rolls vouches for a very independent position of the suitors, and indeed for their prevalent authority in the constitution of the tribunal. [surrender and admittance.] the conveyancing entries, although barren and monotonous at first sight, are very important, in so far as they show, better perhaps than anything else, the part played by the community and by its testimony in the transmission of rights. it has become a common-place to argue that the practice of surrender and admittance characterises the absolute ownership that the lord has in the land held in villainage, and proceeds from the fact that every holder of servile land is in truth merely an occupier of the plot by precarious tenure. every change of occupation has to be performed through the medium of the lord who 're-enters' the tenement, and concedes it again as if there had been no previous occupation at all and the new tenant entered on a holding freshly created for his use. none the less, a theory which lays all the stress in the case on the surrender into the hand of the lord, and explains this act from the point of view of absolute ownership, is wrong in many respects. [meaning of surrender.] to begin with the legal transmission of a free holding, although the element of surrender has as it were evaporated from it, it is quite as much bound up with the fiction of the absolute ownership of the lord as is the surrender and admittance of villains and copyholders. the ceremony of investiture had no other meaning but that of showing that the true owner re-entered into the exercise of his right, and every act of homage for land was connected with an act of feoffment which, though obligatory, first by custom and then by law, was nevertheless no mere pageant, because it gave rise to very serious claims of service and casual rights in the shape of wardship, marriage, and the like. the king who wanted to be everybody's heir was much too consequent an exponent of the feudal doctrine, and his successors were forced into a gentler practice. but the fiction of higher ownership was lurking behind all these contentions of the upper class quite as much as behind the conveyancing ceremonies of the manorial court. and in both cases the fiction stretched its standard of uniformity over very different elements: allodial ownership was modified by a subjection to the 'dominium directum,' on the one hand; leases and precarious occupation were crystalised into tenure, on the other. it is not my object to trace the parallel of free and peasant holding in its details, but i lay stress on the principle that the privileged tenure involved the notion of a personal concession quite as much as did the base tenure, and that this fundamental notion made itself felt both in conveyancing formalities and in practical claims. [the rod and the festuca.] i am even inclined to go further: it seems to me that the manorial ceremony of surrender and admittance, as considered from the point of view of legal archæology, may have gone back to a practice which has nothing to do with the lord's ownership, although it was ultimately construed to imply this notion. the tenant enfeoffed of his holding on the conditions of base tenure was technically termed tenant by copy of court roll or tenant by the rod--_par la verge_. this second denomination is connected with the fact that, in cases of succession as well as in those of alienation, the holding passed by the ceremonial action of the steward handing a rod to the person who was to have the land. now, this formality looks characteristic enough; it is exactly the same as the action of the 'salman' in frankish law where the transmission of property is effected by the handing of a rod called 'festuca.' the important point is, that the 'salman' was by no means a representative of lordship or ownership, but the necessary middleman prescribed by customary law, in order to give the transaction its consecration against all claims of third persons. the salic law, in its title 'de affatomire,' presents the ceremony in a still earlier stage: when a man wants to give his property to another, he has to call in a middleman and witnesses; into the hands of this middleman he throws a rod to show that he relinquishes all claim to the property in question. the middleman then behaves as owner and host, and treats the witnesses to a meal in the house and on the land which has been entrusted to him. the third and last act is, that this intermediate person passes on the property to the donee designated by the original owner, and this by the same formal act of throwing the rod[ ]. the english practice has swerved from the original, because the office of the middleman has lapsed into the hands of the steward. but the characteristic handing of the rod has well preserved the features of the ancient 'laisuwerpitio' ('the throwing on to the bosom'), and, indeed, it can hardly be explained on any other supposition but that of a survival of the practice. i beg the reader to notice two points which look decisive to me: the steward when admitting a tenant does not use the rod as a symbol of his authority, because he does not keep it--he gives it to the person admitted. still more, in the surrender the rod goes from the peasant-holder to the steward. can there be a doubt that it symbolises the plot of land, or rather the right over the plot, and that in its passage from hand to hand there is nothing to show that the steward as middleman represents absolute ownership, while the peasants at both ends are restricted to mere occupation on sufferance[ ]? is it necessary to explain that these ceremonial details are not trifles from a historical point of view? their arrangement is not a matter of chance but of tradition, and if later generations use their symbols mechanically, they do not invent them at haphazard. symbols and ceremonies are but outward expressions of ideas, and therefore their combinations are ruled by a certain logic and are instinct with meaning. in a sense their meaning is deeper and more to be studied than that supplied by theories expressed in so many words: they give an insight into a more ancient order of things. it may be asked, in conclusion, why a frankish form should be found prevalent in the customary arrangement of the english manorial system? the fact will hardly appear strange when we consider, firstly, that the symbolical acts of investiture and conveyancing were very similar in old english and old frankish law[ ], and that many practices of procedure were imported into england from france, through the medium of normandy. it is impossible at the present date to trace conclusively the ceremonies of surrender and admittance in all their varieties and stages of development, but the most probable course of progress seems to have been a passage from symbolical investiture in the folk-law of free english ceorls through the frankish practice of 'affatomire,' to the feudal ceremony of surrender and admittance by the steward. [the court roll.] and now let us take up the second thread of our inquiry into the manorial forms of conveyancing. a tenant by the verge is also a tenant by copy of court roll. the steward who presided at the court had to keep a record of its proceedings, and this record had a primary importance for the servile portion of the community. while the free people could enter into agreements and perform legal acts in their own name and by charter, the villains had to content themselves with ceremonial actions before the court. they were faithful in this respect to old german tradition, while the privileged people followed precedents which may be ultimately traced to a roman origin. the court roll or record of manorial courts enabled the base tenant to show, for instance, that some piece of land was his although he had no charter to produce in proof of his contention. and we find the rolls appealed to constantly in the course of manorial litigation[ ]. but the rolls were nothing else than records of actions in the court and before the court. they could actually guide the decision, but their authority was not independent; it was merely derived from the authority of the court. for this reason the evidence of the rolls, although very valuable, was by no means indispensable. a claimant could go past them to the original fount, that is, to the testimony of the court. and here we must keep clear of a misconception suggested by a first-sight analysis of the facts at hand. it would seem that the verdict of neighbours, to which debateable claims are referred to in the manorial courts, stands exactly on a par with the verdicts of jurymen taken by the judges of the royal courts. this is not so, however. it is true that the striving of manorial officers to make the procedure of halimotes as much like the common law procedure as possible, went far to produce similarity between forms of actions, presentments, verdicts and juries, in both sets of tribunals. but nevertheless, characteristic distinctions remained to show that the import of some institutions brought near each other in this way was widely different. i have said already that the peasant suitors of the halimote are appealed to on questions of law as well as on questions of fact. but the most important point for our present purpose is this: the jurors called to substantiate the claim of a party in a trial are mere representatives of the whole court. the testimony of the court is taken indirectly through their means, and very often resort is had to that testimony without the intermediate stage of a jury. now this is by no means a trifle from the point of view of legal analysis. the grand and petty juries of the common law are means of information, and nothing more. they form no part of the tribunal, strictly speaking; the court is constituted by the judges, the lawyers commissioned by the king, who adopt this method in investigating the facts before them, because a knowledge of the facts at issue, and an understanding of local conditions surrounding them, is supposed to reside naturally in the country where the facts have taken place[ ]. historically the institution is evolved from examinations of witnesses and experts, and has branched off in france into the close formalism of inquisitorial process. the manorial jury, on the other hand, represents the court, and interchanges with it[ ]. for this reason, we may speak directly of the court instead of treating of its delegates. and if the verdict of the court is taken, it is not on account of the chance knowledge, the presumable acquaintance of the suitors with facts and conditions, but as a living remembrance of what took place before this same court, or as a re-assertion of its power of regulating the legal standing of the community. the verdict of the suitors is only another form of the entry on the rolls, and both are means of securing the continuity of an institution and not merely of providing information to outsiders. of course, claims may not be always reduced to such elementary forms that they can be decided by a mere reference to memory, the memory of the constituted body of the court. a certain amount of reasoning and inference may be involved in their settlement, a set of juridical doctrines is necessary to provide the general principles of such reasoning. and in both respects the manorial court is called upon to act. it is considered as the repository of legal lore, and the exponent of its applications. this means that the court is, what its name implies, a tribunal and not a set of private persons called upon to assist a judge by their knowledge of legal details or material facts[ ]. [communal testimony.] the whole exposition brings us back to a point of primary importance. the title by which land is held according to manorial custom is derived from communal authority quite as much as from the lord's grant. without stepping out of the feudal evidence into historical inquiry, we find that civil arrangements of the peasantry are based on acts performed through the agency of the steward, and before the manorial court, which has a voice in the matter and vouches for its validity and remembrance. the 'full court' is noticed in the records as quite as necessary an element in the conveyancing business as the lord and his steward, although the legal theory of modern times has affected to take into account only these latter[ ]. indeed, it is the part assumed by the court which appears as the distinctive, if not the more important factor. a feoffment of land made on the basis of free tenure proceeds from the grantor in the same way as a grant on the conditions of base tenure; freehold comes from the lord, as well as copyhold. but copyhold is necessarily transferred in court, while freehold is not. and if we speak of the presentment of offences through the representatives of townships, as of the practice of communal accusation, even so we have to call the title by which copyhold tenure is created a claim based on communal testimony. [courts on the ancient demesne.] all the points noticed in the rolls of manors held at common law are to be found on the soil of ancient demesne, but they are stated more definitely there, and the rights of the peasant population are asserted with greater energy. our previous analysis of the condition of ancient demesne has led us to the conclusion, that it presents a crystallisation of the manorial community in an earlier stage of development than in the ordinary manor, but that the constitutive elements in both cases are exactly the same. for this reason, every question arising in regard to the usual arrangements ought to be examined in the light of the evidence that comes from the ancient demesne. we have seen that it would be impossible to maintain that originally the steward was the only judge of the manorial tribunal; the whole court with its free and unfree suitors participates materially in the administration of justice, and its office is extended to questions of law as well as to issues of fact. on the other hand, it was clear that the steward and the lord were already preparing the position which they ultimately assumed in legal theory, that in the exercise of their functions they were beginning to monopolise the power of ultimate decision and to restrict the court to the duty of preliminary presentment. the same parties are in presence in the court of ancient demesne, but the right of the suitors has been summed up by legal theory in quite the opposite direction. the suitors are said to be the judges there; legal dogmatism has set up its hard and fast definitions, and drawn its uncompromising conclusions as if all the historical facts had always been arrayed against each other without the possibility of common origins and gradual development. is it necessary to say that the historical reality was very far from presenting that neat opposition? the ancient demesne suitors are villains in the main, though privileged in many respects, and the lord and steward are not always playing such a subordinate part that one may not notice the transition to the state of things that exists in common law manors. it is curious, anyhow, that later jurisprudence was driven to set up as to the ancient demesne court a rule which runs exactly parallel to the celebrated theory that there must be a plurality of free tenants to constitute a manor. coke expresses it in the following way: 'there cannot be ancient demesne unless there is a court and suitors. so if there be but one suitor, for that the suitors are the judges, and therefore the demandant must sue at common law, there being a failure of justice within the manor[ ].' we shall have to speak of this rule again when treating of classes in regard to manorial organisation. but let us notice, even now, that in this view of the ancient demesne court the suitors are considered as the cardinal element of its constitution. the same notion may be found already in trials of the fourteenth and even of the thirteenth century. a curious case is reported in the year books of / edw. iii[ ]. herbert of st. quentyn brought a writ of false judgment against john of batteley and his wife, the judgment having been given in the court of cookham, an ancient demesne manor. the suitors, or suit-holders as they were called there, sent up their record to the king's bench, and many things were brought forward against the conduct of the case by the counsel for the plaintiff, the defendant trying to shield himself by pleading the custom of the manor to account for all unusual practices. the judges find, however, that one point at least cannot be defended on that ground. the suitors awarded default against the plaintiff because he had not appeared in person before them, and had sent an attorney, who had been admitted by the steward alone and not in full court. stonor, c.j., remarks, 'that it is against law that the person who holds the court is not suffered to record an attorney for a plea which will be discussed before him.' the counsel for the plaintiff offer to prove that the custom of the manor did not exclude an attorney appointed before the steward, on condition that the steward should tell it to the suitors in the next court after receiving him. the case is interesting, not merely because it exhibits the suit-holders in the undisputed position of judges, but also because it shows the difficulties created by the presence of the second element of the manorial system, the seignorial element, which would neither fit exactly into an entirely communal organisation nor be ousted from it[ ]. the difficulty stands quite on the same line with that which meets us in the common law manor, where the element of the communal assessors has been ultimately suppressed and conjured away, as it were, by legal theory. the results are contradictory, but on the same line, as i say. and the more we go back in time, the more we find that both elements, the lord and the community, are equally necessary to the constitution of the court. in the thirteenth century we find already that the manorial bailiffs are made responsible for the judgment along with the suitors and even before them[ ]. the rolls of ancient demesne manors present a considerable variety of types, shading off from an almost complete independence of the suitors to forms which are not very different from those of common law manors. stoneleigh may be taken as a good specimen of the first class. [the court at stoneleigh.] the manor was divided into six hamlets, and every one of these consisted of eight virgates of land which were originally held by single socmen; although the regularity of the arrangement seems to have been broken up very soon in consequence of increase of population, extension of the cultivated area, and the sale of small parcels of the holdings. the socmen met anciently to hold courts in a place called motstowehill, and afterwards in a house which was built for the purpose by the abbot. the way in which the register speaks of the admission of a socman to his holding is very characteristic: 'every heir succeeding to his father ought to be admitted to the succession in his fifteenth year, and let him pay relief to the lord, that is, pay twice his rent. and he will give judgments with his peers the socmen; and become reeve for the collection of the lord's revenue, and answer to writs and do everything else as if he was of full age at common law.' the duty and right to give judgment in the court of stoneleigh is emphatically stated on several occasions, and altogether the jurisdictional independence of the court and of its suitors is set before us in the smallest but always significant details. if somebody is bringing a royal close writ of right directed to the bailiffs of the manor it cannot be opened unless in full court. when the bailiff has to summon anybody by order of the court he takes two socmen to witness the summons. whenever a trial is terminated either by some one's default in making his law or by non-defence the costs are to be taxed by the court. the alienation of land and admittance of strangers are allowed only upon the express consent of the court[ ]. in one word, every page of the stoneleigh register shows a closely and powerfully organised community, of which the lord is merely a president. [rolls of king's ripton.] the rolls of king's ripton are not less explicit in this respect. people are fined for selling land without the licence of the court, for selling it 'outside the court[ ].' the judgment depends entirely on the verdict given by the community of suitors or its representatives the jurors. when the parties rely on some former decision, arrangement, or statement of law, they appeal to the rolls of the court, which, as has been said already, present nothing else but the recorded jurisprudence of the body of suitors[ ]. the extent of the legal self-government of this little community may be well seen in the record of a trial in which the abbot of ramsey, the lord of the manor, is impleaded upon a little writ of right by one of his tenants[ ]. but it is hardly necessary to dwell on so normal an event. i should like to take up for once the opposite standpoint, and to show that in these very communities on the ancient demesne elements are apparent which have thrived and developed in ordinary manors to such an extent as to obscure their self-government. in the rolls of king's ripton we might easily notice a number of instances in which the influence of the lord makes itself felt directly or indirectly through the means of his steward. we come, for instance, on the following forms of pleading: an action of dower is brought, and the defendants ask that the laws and customs hitherto used in the court should be observed in regard to them--they have a right to three summonses, three distraints, and three essoins, and if they make default after that, the land ought to be taken into the lord's hand, when, but only if it is not replevied in the course of fifteen days, it will be lost for good and all. all these demands are granted by the steward, with whom the decision, at least formally, rests[ ]. again, when we hear that the whole court craves leave to defer its judgment till the next meeting, it is clear that it rests with the steward to grant this request[ ]. we may find now and then a consideration for the interests of the lord which transcends the limits of mere formal right, as in a case where a certain margery asks the court, without any writ of right or formal action, that an inquest may be held as to a part of her messuage which is detained in the hands of the abbot, although she performs the service due for it. the inquest is held, and apparently ends in her favour, but she is directed at the same time to go and speak with the lord about the matter. ultimately she gets what she wants after this private interview[ ]. the proceedings are irregular and interesting: the usual forms of action are disregarded; a verdict is given, but the material decision is left with the lord, and is to be sought for by private intercession. quite close to this entry we find an instance which is in flagrant contradiction with such a considerate treatment of all parties. the jurors of the court are called upon to decide a question of testament and succession. they say that none of them was present when the testament was made, and that they know nothing about it, and will say nothing about it. 'and so leaving their business undone, and in great contempt of the lord and of his bailiffs, they leave the court. and therefore it is ordered that the bailiffs do cause to be levied a sum of s. to the use of the lord from the property of the said jurors by distress continued from day to day[ ].' this case may stand as a good example both of the sturdy self-will which the peasantry occasionally asserted in their dealings with the lord, and of the opportunities that the lord had of asserting his superiority in a very high-handed manner. but we need not even turn to any egregious instances in which the lord's power is thus displayed. the usual forms of surrender are there to show that, as regards origins, we have the same thing here as in ordinary manors, although the peculiarities of the ancient demesne have brought forward the features of communal organisation in a very marked way, and have held the element of lordship in check. [free suitors in the halimot.] we have seen that there was only one halimot in the thirteenth and the preceding centuries, and that the division into customary court and court baron developed at a later time. we have seen, secondly, that this halimot was a meeting of the community under the presidency of the steward, and that the relative functions of community and steward became very distinct only in later days. it remains to be seen how far the fundamental class division between free tenants and villains affected the management of the court. as there was but one halimot and not two, both classes had to meet and to act concurrently in it. the free people now and then assert separate claims: a chaplain wages his law on the manor of brightwaltham that he did not defame the lord's butler, but when he gets convicted by a good inquest of jurors of having broken the lord's hedges and carried away the lord's fowls, he will not justify himself of these trespasses and departs in contempt, doubtless because he will not submit to the judgment of people who are not on a par with him[ ]. freeholders object to being placed on ordinary juries of the manor[ ], although they will serve as jurors on special occasions, and as a sort of controlling body over the common presenters[ ]. amercements are sometimes taxed by free suitors[ ]. but although some division is apparent in this way, and the elements for a separation into two distinct courts are gathering, the normal condition is one which does not admit of any distinction between the two classes. we come here across the same peculiarity that we have seen in police and criminal law, namely, that the fundamental line of civil condition seems disregarded. even when a court is mainly composed of villains, and in fact called curia villanorum, some of its suitors may be freeholders[ ]. even in a court composed of free people, like that of broughton, there may be villains among them[ ]. the parson, undoubtedly a free man, may appear as a villain in some rolls[ ]. altogether, the fact has to be noticed as a very important one, that whatever business the freeholders may have had in connexion with the manorial system, this business was transacted by courts which consisted chiefly of servile tenants[ ]. in fact the presenting inquests, on which the free tenants refused to serve, would not be prevented by their composition from attainting these free tenants. [requirement of free suitors.] this seems strange and indeed anomalous. one point remains to be observed which completes the picture: although the great majority of the thirteenth century peasantry are mere villains, although on some manors we hardly distinguish freeholders, there is a legal requirement that there should be at least a few freeholders on every manor. later theory does not recognise as a manor an estate composed only of demesne land and copyhold. freeholds are declared to be a necessary element, and should they all escheat, the manor would be only a reputed one[ ]. we have no right to treat this notion as a mere invention of later times. it comes forward again and again in the shape of a rule, that there can be no court unless there are some free tenants to form it. the number required varies. in henry viii's reign royal judges were contented with two. in john's time as many as twelve were demanded, if a free outsider was to be judged. the normal number seems to have been four, and when the record of the proceedings was sent up to the king's tribunal four suitors had to carry it. the difference between the statement of coke and the earlier doctrine lies in the substitution of the manor for the court. coke and his authorities, the judges of henry viii's reign, speak of the manor where the older jurisprudence spoke of the court. their rule involves the more ancient one and something in addition, namely, the inference that if there be no court baron there is no manor. now this part of the doctrine, though interesting by itself, must stand over for the present. let us simply take the assertion that free suitors are necessary to constitute a court, and apply it to a state of things when there was but one strictly manorial court, the halimot. in it is noted in the report of a trial that, 'in order that one may have a court he must have at least four free tenants, without borrowing the fourth tenant[ ].' now a number of easy explanations seem at hand: four free tenants at least were necessary, because four such tenants were required to take the record up to the king's court and to answer for any false judgment; a free tenant could protest against being impleaded before unfree people; some of the franchises could not be exercised unless there were free suitors to form a tribunal. but all these explanations do not go deep enough: they would do very well for the later court baron, but not for the halimot. it is not asserted that free suitors are necessary only in those cases where free tenants are concerned--it is the court as such which depends on the existence of such free suitors, the court which has largely, if not mostly, to deal with customary business, and consists to a great extent of customary tenants. and, curiously enough, when the court baron disengages itself from the halimot, the rule as to suitors, instead of applying in a special way to this court baron, for which it seems particularly fitted, extends to the notion of the manor itself, so that we are driven to ask why the manor is assumed to contain a certain number of free tenants and a court for them. why is its existence denied where these elements are wanting? reverting to the thirteenth century, we have to state similar puzzling questions: thus if one turns to the manorial surveys of the time, the freehold element seems to be relatively insignificant and more or less severed from the community; if one takes up the manorial rolls, the halimot is there with the emphatically expressed features and even the name of a court of villains; but when the common law is concerned, this same tribunal appears as a court of freeholders. the manors of the abbey of bec on english soil contained hardly any freeholders at all. had the abbey no courts? had it no manors from the standpoint of coke's theory? what were the halimots whose proceedings are recorded in the usual way on its manorial rolls? in presence of these flagrant contradictions i cannot help thinking that we here come across one of those interesting points where the two lines of feudal doctrine do not meet, and where different layers of theory may be distinguished. [free suitors and freeholders.] without denying in the least the practical importance of such notions as that which required that one's judges should be one's peers, or of such institutions as the bringing up of the manorial record to the king's court, i submit that they must have exercised their influence chiefly by calling forth occasions when the main principle had to be asserted. of course they could not create this principle: the idea that the halimot was a communal court constituted by free suitors meeting under the presidency of the steward, must have existed to support them. that idea is fully embodied in the constitution of the ancient demesne tribunal, where the suitors were admitted to be the judges, although they were villains, privileged villains and nothing else. might we not start from the original similarity between ancient demesne and ordinary manors, and thus explain how the rule as to the necessary constitution of the manorial court was formed? it seems to me a mere application of the higher rule that a court over free people must contain free people, to a state of things where the distinction between free and unfree was not drawn at the same level as in the feudal epoch, but was drawn at a lower point. we have seen that a villain was in many respects a free man; that he was accepted as such in criminal and police business; that he was free against everybody but his lord in civil dealings; that the frank-pledge system to which he belonged was actually taken to imply personal freedom, although the freeholders ultimately escaped from it. i cannot help thinking that a like transformation of meaning as in the case of frank-pledge did take place in regard to the free suitors of the manorial court. the original requirement cannot have concerned freeholders in the usual legal sense, but free and lawful men, 'worthy of were and wite'--a description which would cover the great bulk of the villains and exclude slaves and their progeny. when the definitions of free holding and villainage got to be very stringent and marked, the _libere tenentes_ assumed a more and more overbearing attitude and got a separate tribunal, while the common people fell into the same condition as the progeny of slaves. in a word, i think that the general movement of social development which obliterated the middle class of saxon ceorls or customary free tenants (leaving only a few scattered indications of its existence) made itself felt in the history of the manorial court by the substitution of exceptional freeholders for the free suitors of the halimot. such a substitution had several results: the diverging history of the ancient demesne from that of the ordinary manorial courts, the elevation of the court baron, the growth of the notion that in the customary court the only judge was the steward. one significant little trait remains to be observed in this context. it has been noticed[ ] that care seems to be taken that there should be certain freemen or franklains in every manor. the feature has been mentioned in connexion with the doctrine of free suitors necessary to a court. but these people are by no means free tenants; in the usual legal sense they are mostly holding in villainage, and their freedom must be traced not to the dual division of feudal times, but to survivals of the threefold division which preceded feudalism, and contrasted slave, free ceorl, and military landowner. [honorial courts.] before concluding this chapter i have to say a few words upon those forms of the manorial court which appear as a modification of the normal institution. of the ancient demesne tribunal i have already spoken, but there are several other peculiar formations which help to bring out the main ideas of manorial organisation, just because they swerve from it in one sense or another. mr. maitland has spoken so well of one of these variations, that i need not do anything more than refer the reader to his pages about the honour and its court[ ]. he has proved that it is no mere aggregate of manors, but a higher court, constructed on the feudal principle, that every lord who had free tenants under him could summon them to form a court for their common dealings. it ought to be observed, however, that the instance of broughton, though its main basis is undoubtedly this feudal doctrine, still appears complicated by manorial business, which is brought in by way of appeal and evocation, as well as by a mixture between the court of the great fief and the halimot of broughton. [the soke.] a second phenomenon well worth consideration is the existence in some parts of the country of a unit of jurisdiction and management which does not fall in with the manor,--it is called the _soke_, and comprises free tenantry dispersed sometimes over a very wide area. a good example of this institution is given by mr. clark's publication on the soke of rothley in lincolnshire[ ]. we need not go into the details of the personal status of the tenants, they clearly come under the description of free sokemen. our present concern is that they are not simply arranged into the manor of rothley as usual, but are distinguished as forming the soke of this manor. they are rather numerous-- twenty-three--and come to the lord's court, but their services are trifling as compared with those of the customers, and their possessions are so scattered, that there could be no talk of their joining the agrarian unit of the central estate. what unites them to the manor is evidently merely jurisdiction, although in feudal theory they are assumed to hold of the lord of rothley. but they are set apart as forming the soke, and this shows them clearly to be subjected to jurisdiction rather than anything else. it is interesting to note such survivals in the thirteenth century, and within the realm of feudal law the case of rothley is of course by no means the only one[ ]. if we contrast this exceptional appearance of the soke outside the manor with the normal arrangement by which all the free tenants are fitted into the manor, we shall come to the conclusion that originally the element of jurisdiction over freeholders might exist separately from the management of the estate, but that in the general course of events it was merged into the estate and formed one of the component elements of the manorial court. the case of rothley is especially interesting because the men of the soke or under the soke do not go to a court of their own, but simply join the manorial meetings. if they are still kept apart, it is evident that their relation to the court, and indeed to the manor, was what made them distinct from everybody else. in short, to state the difference in a pointed form, the other people were tenants and they were subjects. [the aston case.] one more point remains to be noticed. in order to make it clear we must by way of exception start from the arrangements of a later epoch than that which we have been discussing. the manor of aston and cote, which may have been carved out with several others from the manor of bampton, presents a very good instance of a village meeting which does not coincide with the manorial divisions, and appears constructed on the lines of a village community which has preserved its unity, although several manors have grown out of it. it was stated by the lord of the manor of aston and cote in , that 'there hath been a custom time out of mind that a certain number of persons called the _sixteen_, or the greater part of them, have used to make orders, set penalties, choose officers, and lot meadows, and do all such things as are usually performed or done in the courts baron of other manors.' all the details of this case are interesting, but we need not go into them, because they have been set out with sufficient care in the existing literature, and summed up by mr. gomme in his book on the village community[ ]. it is the main point which we must consider. here is an assembly meeting to transact legal and economic business, which acts on the pattern of manorial courts. and if not a manorial court, what is it? i think it is difficult to escape the conclusion that it is a meeting of the village community outside the lines of manorial division. the supposition that it represents the old manor of bampton, to which aston, cote, bampton pogeys, bampton priory are subordinated, is entirely insufficient to explain the case, because then we should not have had to recognise new manors in the fractions which were detached from bampton, and there would have been no call to speak of a peculiar assembly assuming the competence of a court baron--we should have had the manorial court and the lord of bampton, and not the sixteen to speak of. the fact is patent and significant. it shows by itself that there may have been cases where the village community and the manor did not coincide, and the village community had the best of it. [manor and township.] the first proposition does not admit of doubt. it was of quite common occurrence that the land of one village should be broken up between several manors, although its open field system and all its husbandry arrangements remained undivided. the question arises, how was that system to work? there could be express agreement between the owners[ ]; ancient custom and the interference of manorial officers chosen from the different parts could help on many occasions. but it is impossible to suppose, in the light of the bampton instance, that meetings might not sometimes exist in such divided villages which took into their hands the management of the many economic questions arising out of common husbandry: questions about hedges, rotation of crops, commonable animals, usage as to wood, moor, pasture, and so forth. a diligent search in the customs of manors at a later period, say in the sixteenth and seventeenth centuries, must certainly disclose a number of similar instances. our own material does not help us, because it passes over questions of husbandry, and touches merely jurisdiction, ownership, and tenant-right. and so we must restrict ourselves to notice the opening for an inquiry in that direction. [township and manor.] such an inquiry must also deal with the converse possibility, namely, the cases in which the manor is so large that several village units fit into it. we may find very frequently in some parts of the country large manors which are composed of several independent villages and hamlets[ ]. on large tracts of land these villages would form separate open field groups. although the economic evidence is not within our reach in early times, we have indications of separate village meetings under the manorial court even from the legal point of view taken by the court-rolls. in several instances the entries printed in the second volume of the selden society publications point to the action of townships as distinct from the manorial court, and placed under it. in broughton a man distrained for default puts himself on the verdict of the whole court and of the township of hurst, both villains and freemen, that he owes no suit to the court of broughton, save twice a year and to afforce the court. be it noted that the court of hurst is distinguished from the township, which appears subordinated to it, probably because there were other townships in the manor of hurst. at the same time the township is called upon to act as an independent unit in the matter. even so in the rolls of hemingford, the township which forms the centre of the manor and gives its name to it, is sometimes singled out from the rest of the court as an organised corporation[ ]. when township and tithing coincided, as in the case of brightwaltham, the tithing gets opposed to the general court in the same way[ ]. altogether the corporate unity of townships is well perceivable behind the feudal covering of the manor. mr. maitland says with perfect right, 'the manor was not a unit in the governmental system; the county was such a unit, so was the hundred. so again was the vill, for the township had many police duties to perform; it was an amerciable, punishable unit; not so the manor, unless it coincided with the vill[ ].' and then he proceeds to suggest that the true explanation of the manor is that it represents an estate which could be and was administered as a single economic and agrarian whole. i am unable to follow him entirely as to this last point, because it seems pretty clear that the open field arrangements followed the division into townships, and not those into manors. from the point of view of the services, of the concentration of duties of the tenantry in regard to the lord, the manor was a whole, and for this very reason it was a whole as regards geldability, but this is only one side of the economic structure of society, the upper side, if one may be allowed to say so. the arrangement of actual cultivation is the other side, and it is represented by the township with its communal open fields. now in a great many cases the estate and the community fitted into each other; and of these instances there is no need to speak any further. but if both did not fit, the agrarian unity is the township and not the manor. the open field system appears in this connexion as outside the manor, and proceeding from the rural community by itself. let us sum up the results obtained in this chapter. . the village communities contained in the manorial system are organised on a system of self-government which affords great help to the lord in many ways, but certainly limits his power materially, and reduces him to the position of a constitutional ruler. . the original court of the manor was one and the body of its suitors was one. the distinction between courts for free tenants and customary courts grows up very gradually in the fourteenth century, and later. . the steward was not the only judge of the halimot. the judgment came from the whole court, and its suitors, without distinction of class, were necessary judicial assessors. . the court of ancient demesne presents the same elements as the ordinary halimot, although it lays greater stress on the communal side of the organisation. . the conveyancing entries on the rolls do not prove the want of right on the part of the peasant holders. on the contrary, they go back to very early communal practice. . the rule which makes the existence of the manor dependent on the existence of free suitors is derived from the conception of the court as a court of free and lawful men, taking in villains and excluding slaves. . the manor by itself is the estate; the rural community and the jurisdiction of the soke are generally fused with it into one whole; but in some cases the two latter elements are seen emerging as independent growths from behind the manorial organisation. chapter vi. the manor and the village community. _conclusions._ if we look at the village life of mediaeval england, not for the purpose of dissecting it into its constitutive elements, but in order that we may detect the principles that hold it together and organise it as a whole, we shall be struck by several features which make it quite unlike the present arrangement of rural society. even a casual observer will not fail to perceive the contrast which it presents to that free play of individual interests and that undisputed supremacy of the state in political matters, which are so characteristic of the present time. and on the other hand there is just as sharp a contrast between the manorial system and a system of tribal relationships based on blood relationship and its artificial outgrowths; and yet again it may be contrasted with a village community built upon the basis of equal partnership among free members. it is evident, at the same time, that such differences, deep though they are, cannot be treated as primordial and absolute divisions. all these systems are but stages of development, after all, and the most important problem concerning them is the problem of their origins and mutual relations. the main road towards its solution lies undoubtedly through the demesne of strictly historical investigation. should we succeed in tracing with clearness the consecutive stages of the process and the intermediate links between them, the most important part of the work will have been done. this is simple enough, and seems hardly worth mentioning. but things are not so plain as they look. to begin with, even a complete knowledge of the sequence of events would not be sufficient since it would merely present a series of arrangements following upon each other in time and not a chain of causes and effects. we cannot exempt ourselves from the duty of following up the investigation by speculations as to the agencies and motives which produced the changes. but even apart from the necessity of taking up ultimately what one may call the dynamic thread of the inquiry, there is considerable difficulty in obtaining a tolerably settled sequence of general facts to start with. any one who has had to do with such studies knows how scanty the information about the earlier phenomena is apt to be, how difficult it is to distinguish between the main forms and the variations which mediate and lead from one to another. the task of settling a definite theory of development would not have been so arduous, and the conflicting views of scholars would not have suggested such directly opposite results, if the early data had not been so scattered and so ambiguous. the state of the existing material requires a method of treatment which may to some extent supplement the defects in the evidence. the later and well-recorded period ought to be made to supply additional information as to the earlier and imperfectly described ones. it is from this point of view that we must once more survey the ground that we have been exploring in the foregoing pages. the first general feature that meets our eye is the cultivation of arable on the open-field system: the land tilled is not parcelled up by enclosures, but lies open through the whole or the greater part of the year; the plot held and tilled by a single cultivator is not a compact piece, but is composed of strips strewn about in all parts of the village fields and intermixed with patches or strips possessed by fellow villagers. now, both facts are remarkable. they do not square at all with the rules and tendencies of private ownership and individualistic husbandry. the individual proprietor will naturally try to fence in his plot against strangers, to set up hedges and walls that would render trespassing over his ground difficult, if not impossible. and he could not but consider intermixture as a downright nuisance, and strive by all means in his power to get rid of it. why should he put up with the inconvenience of holding a bundle of strips lying far apart from each other, more or less dependent because of their narrowness on the dealings of neighbours, who may be untidy and unthrifty? instead of having one block of soil to look to and a comparatively short boundary to maintain, every occupier has a number of scattered pieces to care for, and neighbours, who not only surround, but actually cut up, dismember, invade his tenement. the open-field system stands in glaring contradiction with the present state of private rights in western europe, and no wonder that it has been abolished everywhere, except on some few tracts of land kept back by geographical conditions from joining the movement of modern civilisation. and even in mediaeval history we perceive that the arrangement does not keep its hold on those occasions when the rights of individuals are strongly felt: it gives way on the demesne farm and on newly reclaimed land. at the same time, the absence of perpetual enclosures and the intermixture of strips are in a general way quite prevalent at the present time in the east of europe. what conditions do they correspond to? why have nations living in very different climates and on very different soils adopted the open-field system again and again in spite of all inconveniences and without having borrowed it from each other? there is absolutely nothing in the manorial arrangement to occasion this curious system. it is not the fact that peasant holdings are made subservient to the wants of the lord's estate, that can explain why early agriculture is in the main a culture of open fields and involves a marvellous intermixture of rights. the absence of any logical connexion between these two things settles the question as to historical influence. the open-field arrangement is, i repeat it, no lax or indifferent system, but stringent and highly peculiar. and so it cannot but proceed from some pressing necessity. it is evidently communal in its very essence. every trait that makes it strange and inconvenient from the point of view of individualistic interests, renders it highly appropriate to a state of things ruled by communal conceptions. it is difficult to prevent trespasses upon an open plot, but the plot must be open, if many people besides the tiller have rights over it, pasture rights, for instance. it involves great loss of time and difficulty of supervision to work a property that lies in thirty separate pieces all over the territory of a village, but such a disposition is remarkably well adapted for the purpose of assigning to fellow villagers equal shares in the arable. it is grievous to depend on your neighbours for the proceeds and results of your own work, but the tangled web of rights and boundaries becomes simple if one considers it as the management of land by an agricultural community which has allotted the places where its members have to work. rights of common usage, communal apportionment of shares in the arable, communal arrangement of ways and times of cultivation--these are the chief features of open-field husbandry, and all point to one source--the village community. it is not a manorial arrangement, though it may be adapted to the manor. if more proof were needed we have only to notice the fact, that open-field cultivation is in full work in countries where the manor has not been established, and in times when it has not as yet been formed. we may take india or tribal italy as instances. the system as exhibited in england is linked to a division into holdings which gives it additional significance. the holding of the english peasant is distinguished by two characteristic features: it is a unit which as a rule does not admit of division; it is equal to other units in the same village. there is no need to point out at length to what extent these features are repugnant to an individualistic order of things. they belong to a rural community. but even in a community the arrangement adopted seems peculiar. we must not disregard some important contradictions. the holdings are not all equal, but are grouped on a scale of three, four, five divisions--virgates, bovates, and cotlands for instance. and the question may be put: why should an artificial arrangement contrived for the sake of equality start from a flagrant inequality which looks the more unjust, because instead of those intermediate quantities which shade off into each other in our modern society we meet with abrupt transitions? a second difficulty may be found in the unchangeable nature of the holding. the equal virgates are in fact an obstacle to a proportionate repartition of the land among the population, because there is nothing to insure that the differences of growth and requirements arising between different families will keep square with the relations of the holdings. in one case the family plot may become too large, in another too scanty an allowance for the peasant household working and feeding on that plot. and ultimately, as we have seen, the indivisible nature of the holding looks to some extent like an artificial one, and one that is more apparent than real. not to speak of that provincial variation, the kentish system of gavelkind, we notice that even in the rest of england large units are breaking into fractions, and that very often the supposed unity is only a thin covering for material division. why should it be kept up then? such serious contradictions and incongruities lead us forcibly to the conclusion that we have a state of transition before us, an institution that is in some degree distorted and warped from its original shape. in this respect the manorial element comes strongly to the fore. the rough scale of holdings would be grossly against justice for purely communal purposes, but it is not only the occupation of land, but also the incidence of services that is regulated by it. people would not so much complain of holding five acres instead of thirty, if they had to work and to pay six times less in the first case. again, a division of tenements fixed once and for all in spite of changes in the numbers and wants of the population, looks anything but convenient. at the same time the fixed scheme of the division offers a ready basis for computing rents and assessing labour services. and for the sake of the lord it was advisable to preserve outward unity even when the system was actually breaking up: for dealings with the manorial administration virgates remained undivided, even when they were no longer occupied as integral units. although the holdings are undoubtedly made subservient to the wants of the manor, it would be going a great deal too far to suppose that they were formed with the primary object of meeting those wants. if we look closer into the structure we find that it is based on the relation between the plough-team and the arable, a relation which is more or less constant and explains the gradations and the mode of apportionment. the division of the land is no indefinite or capricious one, because the land has to be used in certain quantities, and smaller quantities or fractions would disarrange the natural connexion between the soil and the forces that make it productive. the society of those days appears as an agricultural mass consisting not of individual persons or natural families, but of groups possessed of the implements for tilling the land. its unit of reckoning is not the man, but the plough-beast. as the model plough-team happens to be a very large one, the large unit of the hide is adopted. lesser quantities may be formed also, but still they correspond to aliquot parts of the full team of eight oxen. thus the possible gradations are not so many or so gentle as in our own time, but are in the main the half plough-land, the virgate, and the oxgang. what else there is can be only regarded as subsidiary to the main arrangement: the cotters and crofters are not tenants in the fields, but gardeners, labourers, craftsmen, herdsmen, and the like. if the country had not been mainly cultivated as ploughland, but had borne vines or olives or crops that required no cumbersome implements, but intense and individualistic labour, one may readily believe that the holdings would have been more compact, and also more irregular. the principles of coaration give an insight into the nature of these english village communities. they did not aim at absolute equality; they subordinated the personal element to the agricultural one, if we may use that expression. not so much an apportionment of individual claims was effected as an apportionment of the land to the forces at work upon it. this observation helps us to get rid of the anomalies with which we started: the holding was united because an ox could not be divided; the plots might be smaller or larger, but everywhere they were connected with a scheme of which the plough-team was the unit. an increasing population had to take care of itself, and to try to fit itself into the existing divisions by family arrangements, marriage, adoption, reclaiming of new land, employment for hire, by-professions, and emigration. the manorial factor comes in to make everything artificially regular and rigid. if we examine the open-field system and its relation to the holdings of individual peasants, we see, as it were, the framework of a peasant community that has swerved from the path of its original development. the gathering of scattered and intermixed strips into holdings points to practices of division or allotment: these practices are the very essence of the whole, and they alone can explain the glaring inconveniencies of scattered ownership coupled with artificial concentration. but redivision of the arable is not seen in the documents of our period. there is no shifting of strips, no changes in the quantities allotted to each family. everything goes by heredity and settled rules of family property, as if the husbandry was not arranged for communal ownership and re-allotment. i should like to compare the whole to the icebound surface of a northern sea: it is not smooth, although hard and immoveable, and the hills and hollows of the uneven plain remind one of the billows that rolled when it was yet unfrozen. the treatment of the arable gives the clue to all other sides of the subject. the rights of common usage of meadow and pasture carry us back to practices which must have been originally applied to arable also. when one reads of a meadow being cut up into strips and partitioned for a year among the members of the community by regular rotation or by lot, one does not see why only the grass land should be thus treated while there is no re-allotment of the arable plots. as for the waste, it does not even admit of set boundaries, and the only possible means of apportioning its use is to prescribe what and how many heads of cattle each holding may send out upon it. the close affinity between the different parts of the village soil is especially illustrated by the fact, that the open-field arable is treated as common through the greater part of the year. such facts are more than survivals, more than stray relics of a bygone time. the communal element of english mediaeval husbandry becomes conspicuous in the individualistic elements that grow out of it. the question has been asked whether we ought not to regard these communal arrangements as derived from the exclusive right of ownership, and the power of coercion vested in the lord of the soil. i think that many features in the constitution of the thirteenth century manor show its gradual growth and comparatively recent origin. the so-called manorial system consists, in truth, in the peculiar connexion between two agrarian bodies, the settlement of villagers cultivating their own fields, and the home-estate of the lord tacked on to this settlement and dependent on the work supplied by it. i take only the agrarian side, of course, and do not mention the political protection which stands more or less as an equivalent for the profits received by the lord from the peasantry. and as for the agrarian arrangement, we ought to keep it quite distinct from forms which are sometimes confused with it through loose terminology. a community paying taxes, farmers leasing land for rent, labourers without independent husbandry of their own, may be all subjected to some lord, but their subjection is not manorial. two elements are necessary to constitute the manorial arrangement, the peasant village and the home farm worked by its help. if we turn now to the evidence of the feudal period, we shall see that the labour-service relation, although very marked and prevalent in most cases, is by no means the only one that should be taken into account. in a large number of cases the relation between lord and peasants resolves itself into money payments, and this is only another way of saying that the manorial group disaggregates itself. the peasant holding gets free from the obligation of labouring under the supervision of the bailiff, and the home estate may be either thrown over or managed by the help of hired servants and labourers. but alongside of these facts, testifying to a progress towards modern times, we find survivals of a more ancient order of things, quite as incompatible with manorial husbandry. instead of performing work on the demesne, the peasantry are sometimes made to collect and furnish produce for the lord's table and his other wants. they send bread, ale, sheep, chicken, cheese, etc., sometimes to a neighbouring castle and sometimes a good way off. when we hear of the _firma unius noctis_, paid to the king's household by a borough or a village, we have to imagine a community standing entirely by itself and taxed to a certain tribute, without any superior land estate necessarily engrafted upon it; a home farm may or may not be close by, but its management is not dependent on the customary work of the vill (_consuetudines villae_), and the connexion between the two is casual. the facts of which i am speaking are certainly of rare occurrence and dying out, but they are very interesting from a historical point of view, they throw light on a condition of things preceding the manorial system, and characterised by a large over-lordship exacting tribute, and not cultivating land by help of the peasantry. we come precisely to the same conclusion by another way. the feudal landlord is represented in the village by his demesne land, and by the servants acting as his helpers in administration. now, the demesne land is often found intermixed with the strips of the peasantry. this seems particularly fitted for a time when the peasantry did not collect to work on a separate home farm, but simply devoted one part of the labour on their own ground to the use of the lord. what i mean is, that if a demesne consisted of, say, every fifth acre in the village fields, the teams of four virgaters composing the plough would traverse this additional acre after going over four of their own instead of being called up under the supervision of the bailiff, to do work on an independent estate. the work performed by the peasants when the demesne is still in intermixture with the village land, appears as an intermediate stage between the tribute paid by a practically self-dependent community, and the double husbandry of a manorial estate linked to a village. another feature of transition is perceivable in the history of the class of servants or ministers who collect and supervise the dues and services of the peasants. the feudal arrangement is quite as much characterised by the existence of these middlemen as modern life by the agreements and money dealings which have rendered it useless. in the period preceding the manorial age we see fewer officers, and their interference in the life of the community is but occasional. the gathering of tribute, the supervision of a few labour duties in addition, did not require a large staff of ministers. it was in the interest of the lord to dispense as much as possible with their costly help, and to throw what obligations there were to be performed on the community itself. it seems to me that the feudal age has preserved several traces of institutions belonging to that period of transition. the older surveys, especially the kentish ones, show a very remarkable development of carriage duties which must have been called forth by the necessity of sending produce to the lord's central halls or courts, while the home farms were still few and small. the riding bailiffs appear in ancient documents in a position which is gradually modified as time goes on. they begin by forming a very conspicuous class among the tenants, in fact the foremost rank of the peasantry. these radmen, radulfs, rodknights, riders, are privileged people, and mostly rank with the free tenants, but they are selected from among the villagers, and very closely resemble the hundredors, whose special duties have kept up their status among the general decay. in later times, in the second half of the thirteenth century and in the fourteenth, it would be impossible to distinguish such a class of riding tenants. they exist here and there, but in most cases their place has been taken by direct dependents of the lord. besides, as the home-farm has developed on every manor, their office has lost some of the importance it had at a time when there was a good deal of business to transact in the way of communicating between the villages and the few central courts to which rents had to be carried. and, lastly, i may remind the reader of the importance attached in some surveys to the supervision of the best tenants over the rest at the boon works. the socmen, or free tenants, or holders of full lands, as the case may be, have to ride out with rods in their hands to inspect the people cutting the corn or making hay. these customs are mostly to be found in manors with a particularly archaic constitution. they occur very often on ancient demesne. and i need hardly say that they point to a still imperfect development of the ministerial class. the village is already set to work for the lord, but it manages this work as much as possible by itself, with hardly any interference from foreign overseers. one part of the village population is altogether outside the manorial labour intercourse between village and demesne. the freeholders may perform some labour-services, but the home-farm could never depend on them, and when such services are mentioned, they are merely considered as a supplement to the regular duties of the servile holders. at the same time, the free tenants are members of the village community, engrained in it by their participation in all the eventualities of open field life, by their holdings in the arable, by their use of the commons. this shows, again, that the manorial element is superimposed on the communal, and not the foundation of it. i shall not revert to my positive arguments in favour of the existence of ancient freehold by the side of tenements that have become freehold by exemption from servile duties. but i may be allowed to point out in this place, that negatively the appearance of free elements among the peasantry presents a most powerful check to the theory of a servile origin of the community: it throws the burden of proof on those who contend for such an origin as against the theory of a free village feudalized in process of time. in a sense the partizans of the servile community are in the same awkward position in respect to the manorial court. its body of suitors may have consisted to a great extent of serfs, but surely it must have contained a powerful free admixture also, because out of serfdom could hardly have arisen all the privileges and rights which make it a constitutional establishment by the side of the lord. the suitors are the judges in litigation, the conveyancing practice proceeds from the principle of communal testimony, and in matters of husbandry, custom and self-government prevail against any capricious change or unprecedented exaction. and it has to be noticed that the will and influence of the lord is much more distinct and overbearing in the documents of the later thirteenth and of the fourteenth century, than in the earlier records; one more hint, that the feudal conception of society took some time to push back older notions, which implied a greater liberty of the folk in regard to their rulers. whichever way we may look, one and the same observation is forced upon us: the communal organisation of the peasantry is more ancient and more deeply laid than the manorial order. even the feudal period that has formed the immediate subject of our study shows everywhere traces of a peasant class living and working in economically self-dependent communities under the loose authority of a lord, whose claims may proceed from political sources and affect the semblance of ownership, but do not give rise to the manorial connexion between estate and village. appendix. i. see p. , n. . [y.b. pasch. edw. ii, pl. . f. .] [trans.] symon de paris porta breve de transgression vers _h._ bailliffe sire robert tonny et plusours autres, et se pleint, qe _w._ et _h._ certein jour luy pristrent et emprisonerent etc. a tort encountre la pees etc. _pass_ respond pur toutz, forspris le bailliffe, qe riens nount fait encountre la pees, et pour le bailliff yl avowea le restreinement par la resoun qe lavantdit _s._ si est villeine lavandit _r._ qi bailliffe yl est, et fuist trove a _n._ en soun mes, le quel vint a lui tendist office de provoist et il la refusa et ne se voilleit justicier etc. _tond._ rehercea le avowery, et dit qe a cele avowery ne doit il estre resceve pur ceo qe _s._ est fraunc citizene de londre, et ad este touz ceux diz anz, et ad este vicounte le roy en mesme la citee, et rend accounts al eschequer, et ceo voloms averrer par record, et uncore huy ceo jour est alderman et de la ville de londre, et demande jugement, sils puissent villenage en sa persone allegger. _herle._ a ceo qil dient qil est citezen de londre nous navoms qe faire, mes nous vous dioms, qil est villein _r._ de eve et de treve, et les auncestres ael et besayel et toux ces auncestres ses _terres tennantz deinz le manoire de n._ et ces auncestres seisitz des villeins services des auncestres _s._ come affaire rechat de char et de sank et de fille marier, et de euz tailler haut et bas, _etc._, et uncore est seisi de ces freres de mesme le piere et de mesme la mere et demande jugement si sour luy, come sour soun villein en soun mese trove, ne puisse avowere faire. _tond._ fraunc homme et de fraunc estat et eux nient seisi de luy, come de lour villein prest etc. _ber._ jeo ai oi dire qe un homme fuist prist en la bordel, et fuist prist et pendu, et sil eust demorre a lostiel, il neust en nul mal _etc._ auxient de ceste parte, sil eust este fraunc citezen pur qe neust il demorre en la citee? _ad alium diem_; _tond._ se tient qil ne fuist seisi de lui come de soun villein ne de ses villeins services etc. _pass._ la ou il dit qe nous ne sumes pas seisis de lui come de nostre villein, il nasquit en nostre villeinage, ou commence nostre seisine, et nous lui trova mese en soun mes, et la nostre seisine continue, jugement. _ber._ vous pledietz sour la seisine, et il pleident sour le droit issint naverrez james bon issue de plee. _herle._ seisi en la fourme qe nous avoms dit. _ber._ la court ne restreinera tiel travers sanz ceo qe vous dietz, que vous estez seisitz de lui _come de vostre villein et de ses villeinz services_, et sic fecit. _et alii e contra._ ii. see p. , n. . [y.b. trin. edw. iii, f. . i do not give a translation of this document because it has been explained with some detail in my text.] [sur l'estatut de labourer.] [op. curiae.] [op. curiae.] le servant suit par attorney, et le master in propre persone. que dit qe le servant fuit soun villein regardant al manoire de _c._ et dit qil avoit mestre de ses services et de luy, pur qe nous luy prisoms come nostre viliein, come list a nous. jugement si _etc._ tort in nostre party par tiel reteignement puit assigner. _et nota_, qil fist protestacion, qil ne conust pas qil fuit in le service le plaintiffe etc. _et nota_, qe le servant dit auxi, qil fuit le villein le master qi plede, et dit qil fuit distreint, et auxi les amis pur luy tanqe qil convensist par cohercion venir a ses seigneours. _burt._ le servant est par attorney, qe ne puit par soun ple faire sans master villein. purqe ceo ple ne gist in soun bouche. _et non allocatur_ par _wilb._ qi dit qe le ple nest pas al breve: car mesqe il fuit icy in propre persone, et voillet conustre qil fuit villein ce nabat pas vostre breve (le quel qil fuit frank ou villein) si vous poies maintenir qil fuit in vostre service, si ce ne fuit par autiel mattier (come il ad plede) ou autre semblable. et puis le servant weyva, et dit qil ne fist pas covenant etc. _et alii e contra._ _et nota_, qe l'opinion fuit, qe si villein fuit chace et distreint de venir a son seignour propre, qe ce luy excusera del' penance del l'estatut. _sed burt. negavit_, eo qe ce vient de sa folie qil voilleit faire covenant dautre servir, qant il fuit appris qil fuit autry villein. _et ideo quere._ qant al' plea le master _burt._ challange ceo qil navoit pas alleger qil fuit seisi de luy come de soun villein. _et non allocator_ par _wilb._ qui dit, sil soit soun villein, soun plee est assez fort: car seisi et nient seisi ne fera pas issue. _et sic nota._ puis _burt._ dit que l'on allege est quil est soun villein regardant a soun manoire de _c._ nous dioms qe mesme le manoire fuit in le seisin un _a._ que infeffa le defendant de mesme le manoire; et dioms qe tout le temps que il fuit allant et walkant a large a sa frank volunte come frankhome, sans ce qil fuit unque seisi de luy in son temps, et cety qe ad l'estat _a._ ne fuit unques seisi de luy, tanques ore qil de soun tort demesne luy pris hors de nostre service. purque nous nentendons pas que par tiel cause il nous puit ouster de nostre accord. _finch._ et nous jugement, depuis qil ne dedit pas qil nest nostre villein de nostre manoire de _c._ et le quel nous fuit seisis de luy devant, ou non, ou nostre feffor seisi, _etc._ ou ce ne puit my estre a purpose: car il alast alarge, purtant ne fuit il enfranchy. purque _etc._ _th._ si vostre feffor ne fuit unques seisi de luy, coment qil vous dona le manoire, jeo di que ce de que il navoit pas le possession ne puit pas vestir in vous. purque _etc._ _jer._ villeins regardants al' manoires sont de droit al' seignour de prendre les a sa volunte, et sil face don le manoire a un autre, a quel heur que l'autre les happa, il est asses bon. _th._ sir, uncre mesque il soit issint entre luy et le grantor ou le villein, nous qe sums estrange ne serrons pas ly purtant: car si home qi soit estrange veigne in pais, et demurges par _xx_ ou _xxx_ ans, et nul home met debat sur luy, ne luy claime come seruant, il list a moy de prendre soun service, et de luy recevoir in mon service pur le terme solonque nostre covenaunt: et il nest pas reason qe jeo soy perdant, depuis qe in moy default ne puit etre ajuge, _causa ut supra_. _gr._ per mesme le reason qe vous luy purrets retenir tanque al' fine de terme, si poit un autre: _et sic de singulis, et sic in infinitum_: issint le seignour ouste de soun villein a toujours, et ce ne seroit pas reason. puis _th._ n'osa pas demurrer; mes dit qil ne fuit pas soun villein de soun manoire de _c._ prest etc. _fiff._ ceo n'est pas respons: _car coment qil nest pas soun villein del' manoire, etc. sil fuit soun villein in gros, asses suffist_. _et non allocatur_ pur ce quel avoit traverse soun respons in le manere come ce fuit livere, etc. common pleas roll (record office). [trin. e. iii, r. , v. oxon.] thomas barentyn et radulfus crips shephird attachiati fuerunt ad respondendum tam domino regi quam priori hospitalis sancti iohannis ierusalem in anglia quare, cum per ipsum dominum regem et consilium suum pro communi utilitate regni regis anglie ordinatum sit, quod si aliquis seruiens in seruicio alicuius retentus ante finem termini concordati a dicto seruicio sine causa racionabili vel licencia recesserit, penam imprisonamenti subeat et nullus sub eadem pena talem in seruicio suo recipere vel retinere presumat, et predictus thomas predictum radulfum nuper seruientem predicti prioris in seruicio suo apud werpesgrave retentum qui ab eodem seruicio ante finem termini inter eos concordati sine causa racionabili et licencia predicti prioris recessit, in seruicium predicti thome quamquam memoratus thomas de prefato radulfo eidem priori restituendo requisitus fuerit admisit et retinuit in regis contemptum et predicti prioris grave dampnum ac contra ordinacionem predictam. et unde predictus prior per ricardum de fifhide attornatum suum queritur quod cum per ipsum regem et consilium suum etc. ordinatum sit quod si aliquis serviens in servicium alicuius retentus ante finem etc. a dicto seruicio sine causa etc. recesserit penam imprisonamenti subeat et nullus sub eadem pena talem in seruicio suo recipere vel retinere presumat, predictus thomas predictum radulfum nuper seruientem predicti prioris in seruicio suo apud werpesgrove retentum scilicet die lune proxima post festum sancti laurentii anno regni domini regis nunc anglie vicesimo octavo ad deseruiendum ei in officio pastoris etc. scilicet die lune in septimana pentecostes a festo sancti michaelis archangeli tunc proximo sequenti per unum annum proximum sequentem qui ab eodem seruicio ante finem termini ... recessit, in seruicium predicti thome quamquam idem thomas de prefato radulfo eidem priori restituendo requisitus fuerit admisit et retinuit in regis contemptum et predicti prioris grave dampnum ac contra ordinacionem etc. et predictus radulfus a seruicio predicti prioris ante finem sine causa etc. videlicet predicto die lune in septimana pentecostes recessit in regis contemptum ad predicti prioris grave dampnum ac contra ordinacionem etc. unde dicit quod deteriorates est et dampnum habet ad valenciam viginti librorum. et inde producit sectam. et predicti thomas et radulfus per stephanum mebourum attornatum suum veniunt. et defendunt vim et iniuriam quando etc. et quicquid etc. et protestantur quod ipsi non cognoscunt quod predictus radulfus fuit seruiens predicti prioris nec retentus cum eodem priore prout prior superius versus eos narravit et predictus thomas dicit quod predictus radulfus est _villanus suus ut de manerio suo de chalgrave_ per quod ipse seisivit eundem radulfum tanquam villanum suum prout ei bene licuit. et hoc paratus est verificare unde petit iudicium si predictus prior injuriam in persona sua assignare possit. et predictus radulfus dicit quod ipse est villanus predicti thome ut de manerio predicto et quia idem radulfus extra dominium predicti thome morabatur parentes ipsius radulfi districti fuerunt ad venire faciendum predictum radulfum ad predictum thomam dominum suum et ad eorum sectam et excitacionem idem radulfus venit ad predictum thomam absque hoc quod ipse retentus fuit cum predicto priore ad deseruiendum ei per tempus predictum prout idem prior superius versus eum narravit. et de hoc ponit se super patriam. et predictus prior similiter. et idem prior quo ad placitum predicti thome _dicit quod predictus radulfus non est villanus ipsius thome ut de manerio suo predicto_ prout idem thomas superius allegat. et hoc petit quod inquiratur per patriam. et predictus thomas similiter. preceptum etc. iii. see p. , n. , and p. , n. . the so-called mirror of justice is still in many respects an unsolved riddle, and a very interesting one, as it seems to me. the french edition of from which quotations are so frequently made presents a text perverted to such an extent, that the gentleman from gray's inn to whom we owe the english translation of took it upon himself to deal with his original very freely, and in fact composed a version of his own which turned out even less trustworthy than the french. ancient mss. of the work are very scarce indeed; the fourteenth century ms. at corpus college, cambridge, is the only one known to me; although there are also some transcripts of the seventeenth century. this means that the work had no circulation in its time. it is very unlike bracton, or britton in this respect, and indeed in every other. instead of giving a more or less learned or practical exposition of the principles of common law it appears as a commentary written by a partisan, acrimonious in form, almost revolutionary in character, full of stray bits of information, but fanciful in its way of selecting and displaying this information. 'wahrheit und dichtung' would have been a proper title for this production, and no wonder that it has excited suspicion. it has commanded the attention of the present generation of scholars notwithstanding the odd way in which the author, andrew horne, or whoever he may be, cites as authority fictitious decisions given by king alfred and by a number of legal worthies of saxon times who never gave judgment save in his own fruitful imagination. this may be accounted for by peculiar medieval notions as to the manner in which legal discussion may be most efficiently conducted, but altogether the mirror, as it stands, appears quite unique, quite unlike any other legal book of the feudal period. it must be examined carefully by itself before the information supplied by it can be produced as evidence on any point of english medieval history. such an examination should lead to interesting results, but i must reserve it for another occasion. what i have said now may be taken simply as a reason for the omission in my text of those passages of the mirror which bear on the question of villainage. i may be allowed to discuss these passages in the present appendix without anticipating a general judgment on the character of the book and on its value. the author of the mirror shows in many places, that he is hostile not only to monarchical pretensions, but also to the encroachments of the aristocracy. he is a champion of the lower orders and gladly endorses every rule set up by the courts 'in favour of liberty.' in this light he considers the action 'de nativitate' as conferring an advantage upon the defendant, the person claimed as a villain, but considered as free until the contrary has been proved[ ]. another boon consists in the fact, that the trial must be reserved for the decision of the royal courts and cannot be entertained in the county[ ]. so far the mirror falls in with the usual exposition of our authorities--it takes notice of two facts which are generally recognised as important features in trying a question of status. but the mirror does not stop there, but further formulates an assertion which cannot be considered as generally accepted in practice, though it may have emerged now and then in pleadings and even in decisions. it is well known, that the main argument in a trial of villainage turned on the question of kinship. as britton (pp. , , ed. nichols) states the matter, we are led to suppose that the plaintiff had to produce the villain kinsmen of the person claimed, and the defendant could except against them. glanville (v. ) says, that both parties had the right to produce the kindred and in case of doubt or collision a jury had to decide. if the fact of relationship were established on both sides, it was necessary to see on which side the nearer relatives stood. legal practice, so far as we can judge from the extant plea rolls, followed glanville, although questions arising from these suits were much more varied and complicated than his statement implied. (see, for instance, bracton's note book, , .) but in the mirror we find the distinct assertion, that if the defendant in a case of 'nativity' succeeded in proving a free stem in any generation of his ascendants, this was sufficient to prove him free[ ]. this connects itself with the view, that there can be no prescription against free blood, a view which, as we have seen in the text, was in opposition to the usual conception that people may fall into servitude in the course of several generations of debasement. the notion embodied in the mirror was lingering, as it were, in the background. in accordance with this liberal treatment of procedure, we find our author all in favour of liberty when treating of the ways by which bondage may be dissolved. he gives a very detailed enumeration of all such modes of enfranchisement, and at least one of his points appears unusual in english law. i mean his doctrine that a serf ejected from his holding by the lord becomes free, if no means of existence are afforded to him[ ]. the motive adduced is worthy of notice by itself. 'servus dicitur a servando,' a serf is a man under guardianship, like a woman in this respect[ ], and so, if the guardian forgets his duty of taking care of his subject, he forfeits his rights. the roman derivation 'a servando' is often met elsewhere, but instead of being applied to the bondman as a captive who has been kept alive instead of being slain, it is here made the starting point of a new conception and one very favourable to the bondman. it is not the only indication that the author of the mirror had been speculating about the origin of servitude. by the law of nature all men are free, of course, but yet, says he, there exists by human law a class of men to whom nothing belongs, and who are considered as the property of other people: an anomaly which he guesses may possibly come from the time when noah pronounced his malediction against canaan, the son of cham, or else from the defeat of goliath by david[ ]. it is curious too, and at first sight rather inconsistent, that our author sometimes speaks against those very serfs towards whom he seems, as a rule, so favourably disposed. he dwells on their disability, marks as an abuse that they are admitted to act in the courts without the help of their lords, although nothing can be owned by them[ ], and, what is more, he insists on the necessity of their being excluded from the system of frank-pledge, which ought to be restricted entirely to free men[ ]. all this seems rather strange at first, and certainly not in favour of liberty. it turns out, however, that these very qualifications are prompted by the same liberal spirit which we noticed from the first; they are suggested by a most characteristic attempt to draw a definite line between the serf and the villain. the villain is no serf, in any sense of the word. he is a free man[ ], his tenure is a free tenure[ ]. he is enfeoffed of his land, with the obligation to till it, as the knight is enfeoffed of his fee in return for military service; the burgess enfeoffed of his freehold in the borough for a rent[ ]. the right of ownership on the part of the villain is clearly recognised in the great charter, which prescribes the mode and extent of amercing villains, and thereby supposes their independent right of property, while the serf has nothing of his own, and could not be amerced in his own[ ]. the author undoubtedly hits here on a point where the usual feudal theory had been discountenanced by statute: it was certainly difficult to maintain at the same time that the villain, as serf, had nothing but what had been precariously entrusted to him by the lord, and at the same time that he must suffer for misdeeds in the character of an owner. strained in one sense the article of the charter could be made to mean that, at the time of the great charter, there was no such thing as the civil disability of servitude in england. strained in another sense suggested by the mirror, it would lead to a standing distinction between villains, as owners, and serfs, as people devoid of civil rights. we know that legal practice preferred a compromise which was anything but consistent in point of doctrine, but, as i have said in my text, the notion of the civil right of the villain, and especially in his so-called wainage, seems to have been deep-rooted enough to counterbalance in some respects the current feudal doctrine. it would have been difficult for the author of the mirror to maintain that practice was in accordance with his theory; and he falls out of his part now and then, as, for instance, when he speaks of the enfranchisement of the serf from whom the lord had received homage in addition to fealty--this is a case clearly applying to villains as well as to those whom he calls serfs, and it is not the only time that he forgets the distinction[ ]. but when his attention is not distracted by details he takes his ground on the assumption that the original rights of the villains were gradually falling into disuse through the encroachments of the stronger people. we even find in the mirror that the villains ought to have the assise of novel disseisin as a remedy in case of dispossession. if they were oppressively made to render other than the accustomed services they had to resort to the writ, 'ne injuste vexes,' and it is a sign of bad times that they are getting deprived of it. edward the confessor took good care that the legal rights of the villains should not be curtailed[ ]. it is needless again to point out that this view of villainage is well in keeping with the fundamental notion which i tried to bring out in my text, the notion, namely, that the law of villainage contained heterogeneous elements, and had been derived partly from the status of free ceorls. iv. see p. , n. . [coram rege henry iii, n. . m. . d.] assisa venit recognitura si iohannes cheltewynd iniuste etc. disseisiuit willelmum filium roberti de libero tenemento suo in cheltewynd post ultimum etc. et iohannes venit et dicit quod non disseisiuit eundem willelmum de aliquo libero tenemento quia villanus suus est et nullum habet liberum tenementum et quod robertus pater suus fuit villanus. et willelmus dicit quod tenementum illud liberum est et quod robertus pater suus libere tenuit de ada patre iohannis de chetewod et per cartam quam profert in haec verba quod adam de chetwud concessit roberto filio wourami patri willelmi et heredibus suis dimidiam virgatam terre cum pertinenciis in chetwud in feodum et hereditatem tenendam de eodem roberto et heredibus suis libere quiete cum omnibus consuetudinibus et libertatibus quas ceteri franci homines habent pro denariis per annum reddendo pro omni servicio et pro omnibus rebus ad eum et heredes suos pertinentibus. et iohannes bene cognoscit cartam illam et dicit quod idem robertus fuit villanus patris sui et per pecuniam domini sui redemptus fuit a seruitute et quod antequam esset liberatus a servitute fuit idem willelmus nativus, et petit judicium si per cartam quam pater suus ei fecerat debeat esse liber tempore iohannis cum redemptus esset per pecuniam patris iohannis et robertus nichil proprium habuit cum esset villanus. et dicit quod idem willelmus non fuit nisi custos patris sui de eadem terra dum pater suus fuit alibi manens. post uenit willelmus et retraxit se et ideo in misericordia pauper est. et iohannes dat ei iii marcas et willelmus remanet etc. ita quod idem willelmus ibit quocumque uoluerit. et iohannes quietum clamauit willelmum de omni seruitute. v. see p. , n. . [de banco roll, michaelmas, edw. ii, m. .] abbas de sancto edmundo attachiatus fuit ad respondendum rogero filio willelmi henri homini praedicti abbatis de manerio de mildenhale quod est de antiquo dominico corone anglie etc. de placito quare exigit ab eo alias consuetudines et alia servicia quam facere debent et antecessores sui tenentes de eodem manerio facere consueverunt temporibus quibus manerium illud fuit in manibus progenitorum regis quondam regum anglie contra prohibicionem regis etc. et unde idem rogerus per petrum de elyngham attornatum suum dicit quod ipse et antecessores sui et quilibet tenens unum messuagium et quindecim acras terre cum pertinenciis in eodem manerio sicut idem rogerus tenet tempore quo manerium illud fuit in manibus sancti edwardi regis quondam regis anglie progenitoris domini regis nunc tenuit tenementa sua per fidelitatem et servicium inveniendi unum hominem ad tenendum vel fugandum carucam domini singulis diebus anni quando caruce arare consueverunt tantum pro omni servicio et habere consuevit carucam domini qualibet altera septimana singulis annis per diem sabbati ad terram suam propriam arandam vel carucam illam aliis locandam et similiter sextam partem vesture unius acre ordei et medietatem vesture unius rode frumenti de melioribus tempore messis et prandium suum ad nonam singulis annis per sex dies in anno in aula domini sumptibus ejusdem domini scilicet in diebus sancti michaelis, omnium sanctorum, natalis domini, purificacionis beate marie, pasche et pentecostes et oblacionem suam singulis annis per quatuor dies in anno scilicet in diebus natalis domini, purificacionis beate marie, pasche et assumpcionis beate marie virginis scilicet quolibet die unum denarium et per hujusmodi certas consuetudines et servicia ipse et omnes antecessores sui tenementa quae ipse modo tenet tenuerunt a tempore quo non exstat memoria usque ad tempus istius abbatis quod idem abbas praeter praedicta servicia exigit ab eo singulis vicibus quibus aliquis abbas est de novo creatus finem ei praestandum pro capa sua ad voluntatem suam et pro filiis et filiabus suis maritandis et pro terris suis dimmittendis et pro ingressu habendo in hereditatem suam post obitum antecessoris sui finem similiter ad voluntatem suam ac idem rogerus die jovis proxima ante festum apostolorum simonis et jude anno regni domini regis nunc quartodecimo apud sanctum edmundum in praesencia thome de wridervill roberti tillote philippi de wangeford roberti de lyvermere et aliorum liberasset praedicto abbati breve regis de prohibicione et ei inhibuisset ex parte domini regis ne idem abbas exigeret ab eo alias consuetudines et alia servicia quam ipse et antecessores sui tenentes de eodem manerio facere consueverunt temporibus quibus manerium illud fuit in manibus progenitorum regis quondam regum anglie. idem abbas spreta regia prohibicione praedicta nihilominus postmodum exigit ab eo praedicta superonerosas consuetudines et ad ea sibi facienda per graves et intollerabiles districciones distringit quominus terram suam excolere potest unde dicit quod deterioratus est et dampnum habet ad valenciam centum librarum. et inde producit sectam etc. et abbas per willelmum de bakeham attornatum suum venit. et dicit quod non debet praedicto rogero ad hoc breve nec ad aliquod aliud breve respondere. quia dicit quod idem rogerus est villanus ipsius abbatis et villanus ecclesie sue sancti edmundi. et quod ipse seisitus est de ipso tanquam de villano suo unde petit judicium etc. et rogerus dicit quod ipse est homo ipsius abbatis de manerio de mildenhale quod est de antiquo dominico corone anglie. et quod mildenhale sit de antiquo dominico corone anglie paratus est verificare per librum domesday. et super hoc inspecto libro praedicto comperta sunt in eodem verba subscripta.--suffolk--inter terras stigandi quas willelmus denvers servat in manu regis.--lacforde hundred. mildenehalla dedit rex edwardus sancto edmundo et post tenuit stigandus sub sancto edmundo in vita regis edwardi pro manerio xij carucate terre tunc et post xxx uillani modo xxxiij. tunc viij. bordarii post et modo xv. semper xvj. servi semper vj caruce in dominio et viij caruce hominum et xx acre prati ecclesia xl acrarum et j molendinum et iij piscaciones et dimidiam xxxj eque silvatice xxxvij averia et lx porci et mille oves et viij socemanni xxx acrarum semper dimidia caruca. huic iacet i bervita--et quia ex verbis praedictis videtur curie quod mildenhale est de antiquo dominico corone etc. dictum est praedicto abbati quod respondeat quod sibi viderit expedire etc. et abbas dicit sicut prius quod praedictus rogerus est villanus suus et ecclesie sue praedicte et quod ipse seisitus est de ipso ut de villano suo et quod ipse et omnes abbates de sancto edmundo praedecessores ipsius abbatis ex tempore quo non extat memoria seisiti fuerunt de ipso rogero et antecessoribus suis ut de villanis suis talliando ipsos alto et basso pro voluntate sua et faciendo de ipsis praepositos et messores suos et capiendo ab eis merchetum pro filiis et filiabus suis maritandis et finem pro terris suis dimittendis et pro ingressu habendo in terris et tenementis post mortem antecessorum suorum ad voluntatem ipsorum abbatum. et hoc paratus est verificare etc. et rogerus dicit sicut prius quod ipse est homo de antiquo dominico corone anglie de praedicto manerio de mildenhale et quod ipse et omnes antecessores sui a tempore quo non exstat memoria tenuerunt tenementa sua praedicta de praedecessoribus praedicti abbatis et de progenitoribus domini regis regum anglie quondam dominis ejusdem manerii per praedicta certa servicia et consuetudines in narracione sua superius contenta absque hoc quod praedecessores praedicti abbatis fuissent seisiti de ipso rogero aut antecessoribus suis ut de villanis suis talliando ipsos alto et basso vel faciendo de ipsis praepositos et messores aut capiendo de ipsis incertas consuetudines et servicia sicut praedictus abbas dicit. et hoc petit quod inquiratur per patriam. et praedictus abbas similiter ideo praeceptum est vicecomiti quod venire faciat hic a die pasche in tres septimanas xij etc. per quos etc. et qui nec etc. ad recognicionem etc. quia tam etc. see p. , n. . the mildenhall trial just quoted may serve as an instance of litigation between lord and tenant of a manor in ancient demesne, when it took place before the royal courts. the rolls of king's ripton, hunts, now published by prof. f.w. maitland, for the selden society, give an insight into the working of the manorial court itself when it had to decide between lord and tenant in a question of right (pp. _et sqq._). jane the daughter of william of alconbury claims eight acres of land against the abbot of ramsey, lord of the manor. he does not choose to answer at once and takes advantage of all the procrastinations usual in such matters. three times he gets summoned and does not appear; the court proceeds to distrain him and after three distraints he essoins himself three times before making up his mind to answer by attorney and to ask a view of the land. pleadings follow in the usual course, and ultimately a sworn inquest has to decide on the question whether the plaintiff was of full age at the time of a transaction through which the land claimed came into the hands of the abbot. the point is, that the lord of the manor is placed entirely on the same footing in regard to the action of his tenant as any other suitor. in an action of dower occurs between a certain maud grayling and a number of persons holding land within the manor. it is opened by a _writ of right_ which is bound up with the roll, but has not been printed by mr. maitland as it does not contain anything of special interest. the beginning of this writ is typical--it does not mention the abbot, but only the bailiffs of the abbot: [edwardus dei gratia rex angliae] dux aquitaniae, ballivis abbatis de rameseye de riptone regis salutem. precipimus vobis quod sine dilacione et secundum con[suetudinem manerii de riptone regis ple]num rectum teneatis matildi que fuit uxor hugonis grayling de medietate sex messuagiorum sexaginta et qua[tuor acrarum] et unius rode [terre dimidia acra prati] cum pertinenciis in riptone regis, unde etc. (court of augmentation, portf. xxiii, n. , r. ). on pp. - mr. maitland gives the translation of two most valuable records of _monstraverunt_ in the court of king's bench between the men of king's ripton and the abbot. the suit is very similar to that of the men of mildenhall; and indeed all these ancient demesne trials turn on the same points. vi. see p. , n. . the stoneleigh register, in the possession of lord leigh, is certainly one of the most interesting surveys of a medieval manor extant, and gives a better insight into the condition of ancient demesne than any other document i know of. its publication would be particularly desirable in the interests of social history. this compilation is indeed a late one, but it has been made with great care and evident accuracy from the original records which go back even to henry ii's time. one part is especially important, because it gives selections from the court rolls of the manorial court. an extract from the compiler's introduction will show the nature and grouping of his material. f. , a: in quorum primo libro agitur de generacione nobilium regum anglie incipiendo modicum ante conquestum usque ad presens sumarie concepta. et de possessionibus et graciis per eos nobis factis et collatis, tam in monasterio de rademora quam in monasterio de stonleya. ac eciam de diversis memorandis consuetudinibus, placitis, feuffamentis, diuisionibus tenementorum in villa et hamelettis de stonle. et de bundis et peranbulacionibus dicti manerii de stonle. ac subsequenter de actis abbatum de stonle a tempore fundacionis quod infra intitulabitur _usque ad presens videlicet usque ad feriam quartam in festo sancti gregorii pape anno domini millesimo trecentesimo nonagesimo secundo_, anno vero domini regis anglie ricardi secundi post conquestum sexto decimo. in secundo libro continentur memoranda de villis de hartone, cobsitone.... erdyngtone.... in tertio libro continentur diversa memoranda tam nos quam alios tangencia et alia informatiua abbatum iuniorum consilia racionabilia secundum antiquas consuetudines, extentas, computaciones per quas poterit a nociuis abstineri, videlicet in diuisionibus possessionum et aliis faciendis pro bono et conseruacione juris monasterii. in quarto libro summarie scribuntur copie diuersorum priuilegiorum et diuersarum composicionum decimarum et placitorum. et de diuersis casibus et defensionibus super eisdem. item in casu quo facta esset commissio alicui abbati a curia romana et a generali capitulo. the following passage is characteristic of the conception of ancient demesne: ( , a) prefatus dominus edwardus rex habuit in dominico suo iure hereditario manerium de stonle cum membris, videlicet kenilworth, bakyngtone, ruytone et stratone, una cum aliis terris et maneriis. que quidem maneria existencia in possessione et manu domini regis edwardi per universum regnum vocantur antiquum dominicum corone regis anglie prout in libro de domusday continetur. see p. , n. . f. , a: henricus dei gracia rex ... venire facias coram nobis alexandrum de canle ... et hugonem le seynsterer, ita quod sint apud kenilworth in octabis sti edwardi ostensuri quo warranto subtraxerunt prefatis abbati et conventui quasdam consuetudines, libertates et jura ad sokam de stonle spectantes ... anno regis nostri quinquagesimo ... et unde predictus abbas pro se et rogero loueday _qui sequitur pro rege_ dicunt quod, cum manerium de stonle fuit antiquum dominicum domini regis ... quilibet tenens ipsius manerii unam virgatam terre _consuevit reddere ipsi domino regi per annum_ denarios et facere sectam ad curiam suam de stonle de tribus septimanis in tres ... predictus alexander qui unam virgatam terre de antiquo et tres rodas de assarto tenet, de quibus reddit roberto de canle predictum redditum et denarios pro predicta secta subtrahenda et pro predicto assarto denarium et obolum ... predictus robertus de canle tenet duas virgatas terre pro solidis et omnes tenentes predicti secundum tenuras suas detinent predicto abbati predictas sectas pro quibus dictus robertus de canle capit a predictis tenentibus secundum tenuras [_folio_ ] suas, scilicet pro una uirgata denarios et de maiori tenura plus et de minori minus. et de totis assartis capit totum seruicium.... et predictus alexander hugo et alii veniunt et defendunt vim et injuriam etc.... et bene cognoscunt, quod antecessores eorum tenuerunt tenementa sua in dicto hameletto de progenitoribus domini regis per seruicium denariorum pro virgata terre ... et bene cognoscunt quod ipsi reddunt predicto roberto de canle redditus suos, sed qualiter ipse uel antecessores sui huiusmodi seruicia perquisierint, ignorant.... jurati ... per sacramentum suum dicunt, quod tempore henrici regis avi domini regis nunc tenuerunt omnes.... faciendo inde domino regi seruicia et consuetudines ad tenementa sua pertinentes. quo tempore quidam ketelburnus antecessor roberti predicti et vicinus ipsorum tenencium qui tenuit de rege sicut alii vicini sui, et quia predicti tenentes domini regis fuerunt exiles in bonis et predictus ketelburnus fuit maior et discrecior eis, locuti fuerunt cum ipso quod ipse colligeret redditum eorum et illum deferret pro eis ad curiam regis, tanquam per manum ipsorum. et post mortem ipsius ketelburni quidam heres ipsius ketelburni accreuit et duxit in uxorem quandam sororem cuiusdam constabularii de castro de kenilworth. qui quidam heres ex permissione dicti constabularii atraxit ad se omnia servicia vicinorum suorum et reddidit antecessoribus domini regis pro qualibet virgata dicte ville denarios et fecit sectam pro eis ad curiam domini regis. et cepit pro secta predicta certum redditum et pro assartis predictis et ipsum redditum penes se retinuit ... [_folio_ ] dicunt eciam quod idem robertus de canle coram iusticiariis domini regis ultimo itinerantibus in comitatu isto tulit _breve de natiuitate versus predictum alexandrum hugonem et alios et petiit eos, ut natiuos suos, et tunc ibidem declaratum fuit quod liberi fuerunt et ipse ricardus remansit in misericordia. unde dicunt, quod ipsi sunt adeo liberi penes se, sicut predictus robertus penes se et tenere debent tenementa sua de domino rege in capite...._ et ideo consideratum est, quod dominus rex recuperet seysinam suam ... et predictus alexander hugo et alii sint _intendentes domino regi et balliuis suis uel illis quibus dominus rex eos dare voluerit..._ item coram eisdem justiciariis inquisicio facta fuit per preceptum domini regis quod ... tempore quo rex henricus avus domini regis henrici filii regis johannis contulit abbati manerium de stonle cum soka ... fuit idem rex in seysina de toto manerio integro de stonle ... et idem abbas similiter in seysina ... quousque petrus de canle qui fuit collector redditus de canle ad instanciam vicinorum suorum ad redditus illos deferendum domino regi et pro eis soluendum, subtraxit a se per diuturnam colleccionem suam et per remissionem et negligenciam dominorum sine impedimento et calumpnia sectas, relevia, escaetas octo tenencium qui tenebant _octo virgatas terre de domino rege et postea de abbate de stonle_ [_folio_ d] anno regni regis henrici ... quinquagesimo primo ... _dominus rex habuit seysinam dicti hameletti per duas ebdomadas et deinde dominus rex per vicecomitem suum posuit prefatum abbatem in plenam seysinam dicti hameletti de_ stonle die sti clementis eodem anno ad magnam crucem ville de stonle. see p. , n. . the stoneleigh register has the following entry on f. : memorandum quod tempore fundacionis fuerunt in manerio de stonle lx et xiij _villani_ quatuor _bordarii_ cum duobus presbyteris tenentes _xxx carucatas_ terre prout continetur in libro de domesday, fuerunt eciam tunc quatuor _natiui siue serui_ in le lone (_sic_) quorum quilibet unum mesuagium et unum quartronem terre tenebat per servicia subscripta, videlicet leuando furcas ... et debebant ... redimere sanguinem suum et dare auxilium domino ad festum sti michaelis scilicet ayde, et facere braseum et alia servicia seruilia, quorum nomina fuerunt henricus croud, cuius heres iohannes shukeburghe; secundus vocabatur robertus bedul, cuius heredes extincti sunt in prima pestilencia. tercius fuit galfridus dore cuius eciam heredes extincti sunt in eadem pestilencia. quartus fuit robertus stot qui eciam mortuus est sine herede. fuerunt eciam _quatuor liberi tenentes_ in villa de stonle qui tenuerunt hereditarie quinque mesuagia et quinque virgatas terre cum pertinenciis de rege in capite per seruicia sokemanrie, videlicet paganus de stonle qui tenuit duas virgatas terre, qui paganus abavus fuit iohannis de stonle, patris roberti le eyr. qui iohannes de stonle dedit unum quartronem terre iuliane filie sue et roberto carteri marito dicte iuliane, cuius heres est iohannes iulian. dedit eciam prefatus iohannes de stonle cum alia filia sua alicia nomine unum mesuagium et unum quartronem terre roberto filio reginaldi baugy, marito ipsius alicie et ipsorum heredibus. qui robertus et alicia dederunt dictum tenementum willelmo filio roberti staleworthe de flechamstede et heredibus suis prout inferius pleniter continetur. quorum heres est linealiter willelmus staleworthe qui modo ea tenet. predictus vero robertus le eyr dedit omnia residua tenementi sui cum redditibus et seruiciis ioanni sparry et iohanni hockele approwatoribus abbatis de stonle. et ipsi approwatores de licencia domini regis per breue ad quod dampnum predicta tenementa roberti le heyr dederunt roberto de hockele abbati de stonle et successoribus suis in perpetuum anno regni regis edwardi tercii post conquestum vicesimo.... fuerunt eciam duo liberi tenentes in parva sokemanria, qui tenuerunt hereditarie duo mesuagia et medietatem unius virgate terre cum pratio et pertinenciis de rege in capite. quorum heredes ea dederunt in feudo de licencia domini abbatis alexandro lynburgh, henrico rachel, ricardo sheperde et simoni malyn. et ipsi ea dederunt iohanni hockele approwatori thome pype abbatis de stonle. qui abbas ipsa tenementa una cum aliis tenementis amortizauit per breue ad quod dampnum, prout in carta regia inferius contenta plenius apparet. item fuerunt tenentes cottarii in predicta villa de stonle tempore fundacionis abbatii xxiv tenentes xxiv cotagia in villa de stonle pro certis redditibus. in the description just quoted the greater bulk of the tenants is described as villains according to the terminology of domesday and only a few (six in all) are said to be free socmen and little socmen. but a remarkable passage on the constitution of the court and the rights and duties of its suitors describes these very villains as socmen. f. . curia de stonle ad quam sokemanni faciebant sectam solebat ab antiquo teneri super montem iuxta uillam de stonle vocatam motstowehull. ideo sic dicta quia ibi placitabant. sed postquam abbates de stonle habuerunt dictam curiam et libertatem pro aysiamento tenencium et sectatorum fecerunt domum curie in medio ville de stonle. ad quam curiam veniunt et sectam faciunt omnes sokemanni manerii de stonle de tribus septimanis in tres. et quilibet eorum tenens unam virgatam terre solvet domino annuatim denarios, scilicet unum denarium per acram quia quelibet virgata continet acras et non plus. et in quolibet hameletto manerii sunt virgate terre. et si quod amplius habent, hoc utique habent de approvacione et assartacione vastorum. item quodlibet hamelletum dabit domino sextam porcionem ad communem finem bis per annum ad curiam visus franciplegii. ad quem finem prefati socemanni sectatores curiae nihil solvent sed inferiores tenentes, nisi in casu quod deficiant tenentes inferiores. item prefati sokemanni in obitibus suis dabunt herietum integrum, scilicet unum equum et hernesium et arma si habuerint. sin autem melius averium integrum quod habuerint. et quilibet heres patri succedens debet admitti ad hereditatem suam anno etatis sue quintodecimo et solvet domino releuium, scilicet dupplicabit redditum suum. et dabit iudicia cum aliis paribus suis sokemannis. et erit prepositus colligendo redditum domini quando eligetur per pares suos. et debet respondere brevibus et omnia alia facere ac si plene esset etatis per legem communem. item sokemanni habebunt in forinsecis boscis manerii per visum forestariorum estoverium, scilicet.... et omnes tenentes sokemannorum simul cum tenentibus domini venient cum faucillis ad bederipam domini ad metendum blada domini. et ipsi etiam sokemanni venient ad ipsam bederipam equitantes cum virgis suis ad videndum quod bene operantur, et ad praesentandum et ad amerciandum deficientes et male operantes. et si non venerint ad dictam bederipam in forma predicta, debent graviter amerciari. in the warwickshire roll (queen's remembrancer's miscellaneous books, n. ) villains are mentioned, but only exceptionally and in very small number. it looks as if they represented that class of the tenantry which in the register is described as _servi vel nativi_. it would be out of the question to print here the detailed account of the distribution and character of the holdings given in the hundred roll--this must be left to the future editor of that document. but i may say here, that the holdings are much scattered, and that it would be difficult to trace the original plan mentioned in the register. still the division into principal tenants, mesne tenants, and cotters is clearly discernible, and the principal tenants are called free in the manor itself as well as in the hamlets. in two cases they are also spoken of as socmen. vii. see p. , n. . [county placita, norfolk, no. , ed. iii.] edwardus dei gracia rex anglie et francie et dominus hibernie thesaurariis et camerariis suis salutem. volentes certis de causis cerciorari super tenore recordi et processus loquele que fuit inter willelmum de narwegate et quosdam alios homines rogeri bygod nuper comitis norfolk de manerio de haluergate quod est de antiquo dominico corone anglie ut dicitur, et ipsum comitem coram domino e. nuper rege anglie auo nostro anno regni sui vicesimo primo per breve ejusdem aui nostri de eo quod idem comes ostenderet quare a praefatis hominibus exigebat alias consuetudines et alia seruicia quam facere deberent et ipsi et antecessores sui tenentes de eodem manerio facere consueverunt temporibus quibus manerium illud fuit in manibus progenitorum nostrorum quondam regum anglie, vobis mandamus quod scrutatis rotulis praefati aui nostri de tempore praedicto qui sunt in thesauraria nostra sub custodia vestra (ut dicitur) tenorem recordi et processus praedictorum nobis in cancellaria nostra sub sigillo scaccarii nostri sine dilacione mittatis et hoc breve. teste leonello filio nostro carissimo custode anglie apud redyng vi die julii anno regni nostri anglie vicesimo primo regni vero nostri francie octavo. placita coram domino rege de termino sancti michaelis. anno regni regis edwardi filii regis henrici xxj finiente incipiente xxii^{o}. rogerus bygod comes norfolk et marescallus anglie attachiatus fuit ad respondendum willelmo de narwegate, henrico filio simonis de culyng, thome filio henrici de haluergate, ricardo atte howe, roberto sewyne et ricardo filio henrici margerie hominibus praedicti rogeri le bygod de manerio de haluergate quod est de antiquo dominico corone anglie de placito quare exigit a praefatis willelmo de narwegate et aliis alias consuetudines et alia seruicia quam facere debent et antecessores sui tenentes de eodem manerio facere consueverunt temporibus quibus manerium illud fuit in manibus praedecessorum regis regum anglie. et unde queruntur cum antecessores sui tenentes de eodem manerio tempore domini willelmi regis conquestoris quando praedictum manerium fuit in manum suam tenuerunt tenementa sua per certa seruicia videlicet pro qualibet acra terre quam in eodem manerio tenuerunt duos denarios per annum et qui plus tenuerunt plus dederunt et sectam ad curiam regis in eodem manerio de tribus septimanis in tres septimanas et quando aliquis eorum in curia praedicta pro aliqua transgressione esset amerciandus per sex denarios tantum amerciatus esse debet, et similiter per dupplicacionem firme sue minoris vel majoris post mortem antecessorum suorum et solent talliari quando dominus rex talliare fecit dominia sua anglie pro omni seruicio et per praedicta certa seruicia terras et tenementa sua tenuerunt a tempore regis willelmi praedicti usque ad tempus domini henrici regis patris domini regis nunc, quod rogerus bygod antecessor praedicti rogeri qui nunc est ab eis et antecessoribus suis alias consuetudines et alia seruicia exigebat et ad ea facienda distrinxit videlicet pro qualibet acra quam in praedicto manerio tenuerunt quatuor denarios per annum et tallagium alto et basso cariagium aueragium et merchettum pro filiis et filiabus suis maritandis et de eisdem propositum faciendum iniuste et pro voluntate sua distrinxit. et praedictus rogerus bygod qui nunc est illam iniuriam continuando a praefatis willelmo et aliis praedicta seruicia villana et incerta exigit et eos ad ea facienda distringit et inde producunt sectam etc. et praedictus rogerus bigod venit et defendit vim et iniuriam quando etc. dicit quod praedicti willelmi et alii non debent ad breve suum respondere. dicit enim quod ipsi in brevi suo dicunt se esse homines ipsius rogeri de manerio praedicto et tenentes de eodem manerio qui quidem willelmus et alii non sunt homines ipsius rogeri de manerio praedicto nec fuerunt die inpetracionis brevis sui videlicet xij die maij anno regni regis nunc xxj^{o} nec eciam aliqua tenementa tenent in praedicto manerio nec tenuerunt die praedicto nec antea per magnum tempus unde petit iudicium etc. et praedictus willelmus de narwegate dicit quod ipse est homo praedicti comitis de manerio praedicto et tenet in eodem manerio unum messuagium unum croftum et dimidiam acram marisci et tenuit die impetracionis brevis praedicti. et thomas filius henrici dicit quod ipse est homo praedicti comitis et tenet in praedicto manerio unum messuagium et octo acras marisci et tenuit die praedicto etc. et de hoc ponunt se super patriam. et praedictus comes similiter. ideo veniant inde jurati coram rege a die sancti hillarii in xv dies ubicumque etc. quia tam etc. et praedicti henricus ricardus atte howe robertus et ricardus filius henrici dicunt quod reuera ipsi iam viginti annis elapsis inpetrauerunt quoddam breve consimile etc. tempore quo ipsi fuerunt homines ipsius comitis et tenentes de manerio praedicto coram domino rege versus praedictum comitem et ab illo tempore usque nunc illud placitum sine interrupcione sunt prosecuti ita quod si aliquod breve amiserunt medio tempore statim breve consimile resussitauerunt. unde dicunt quod si praedictus comes pendente praedicto placito et diligenter prosecuta quod eis pro uno placito et pro uno et eodem brevi debeat reputari ipsos a tenementis suis in eodem manerio eiecit homines ipsos nunc ab agendo repellere non debet. et quod ita sit etc. offerunt verificare etc. tam per placita que secuntur dominum regem quam per placita de banco etc. et eciam per placita ultimi itineris salomonis de roffa in comitatu norffolk etc. et praedictus rogerus comes etc. dicit quod praedicti henricus ricardus, robertus et ricardus non continuauerunt placitum suum praedictum sine interruptione in forma praedicta etc. et hoc offert etc. ideo mandatum est thesaurariis et camerariis etc. quod scrutatis brevibus et rotulis de placitis que sequuntur dominum regem a die praedicto usque ad festum sancti michaelis anno regni regis nunc xij^{o} et eciam brevibus et rotulis de itinere praedicti salomonis. et similiter mandatum est elye de bekyngham quod scrutatis rotulis et brevibus de tempore thome de weylaund etc. que sunt sub custodia sua etc. et quid inde etc. scire faciant domino regi a die pasche in xv dies ubicumque etc. idem dies datus est partibus etc. ad quem diem venit praedictus comes et praedicti henricus filius simonis, ricardus atte howe, robertus sewyne et ricardus filius henrici non sunt prosecuti. ideo ipsi et plegii sui de prosequendo in misericordia videlicet adam atte gates, henricus de blafeld et eustachius hose de eadem. et praedictus comes inde sine die etc. postea in octabis sancti hillarii anno regni regis nunc vicesimo quarto venerunt praedicti willelmus de narugate et thomas filius henrici et praedictus rogerus bygod venit et similiter jurati venerunt qui dicunt super sacramentum suum quod praedicti willelmus et thomas praedictis die et anno non fuerunt homines praedicti comitis neque tenentes de praedicto manerio. ideo consideratum est quod praedicti willelmus et thomas nichil capiant per breve suum set sint in misericordia pro falso clamio. et praedictus rogerus comes inde sine die etc. [in dorso:] memorandum quod tenor recordi et processus infrascripti exemplificatus fuit sub magno sigillo domini regis sub hac forma videlicet. edwardus dei gracia rex anglie et francie et dominus hibernie omnibus ad quos etc. salutem. inspeximus tenorem recordi et processus cuiusdam placiti quod fuit coram domino e. quondam rege anglie auo nostro anno regni sui vicesimo primo inter willelmum de norwegate et quosdam alios et rogerum bygod nuper comitem norfolk quem coram nobis in cancellaria nostra venire facimus in hec verba placita coram domino rege etc. recitando totum tenorem praedictum usque in finem et tunc sic nos autem tenorem recordi et processus praedictorum tenore praesencium duximus exemplificandum. in cuius etc. teste leonello filio nostro carissimo custode anglie apud redyng xx die julii anno regni nostri anglie vicesimo primo regni vero nostri francie octauo que quidem brevia non irrotulantur aliter quam hic inseritur. viii. see p. , n. . [exch. memoranda q.r. edw. i, trin. m. d.] baronibus pro hominibus de manerio de costeseye. rex mittit baronibus peticionem hominum manerii de costeseye presentibus inclusam mandantes, quod audita intellecta et diligenter examinata peticione predicta de diversis gravaminibus et iniuriis per preceptum baronum et per ricardum athelwald de crek ballivum eiusdem manerii eisdem hominibus multipliciter illatis, predictis hominibus iusticie complementum inde exhiberi faciatis prout de iure et secundum legem et consuetudinem regni anglie fuerit faciendum ne oporteat ipsos homines ad regem iterato habere recursum ex causa praedicta. teste rege apud enleford vii die maii xx^{o}. _peticio hominum de manerio de costeseye._ a nostre seignur le rey e a sun conseil se pleynent les pours genz le rey de la basse tenure de le maner de costeseye ce est a sauer de la foreyn sokne com de colton, eston, hiningham, thodeham, rongelsunde, weston, tauerham, berford, wramplingham et dunholt ke richard de crek bailif le rey del maner avantdit a tort lur greve e distreynt e lur met hors de lur usages en dreyt de lur tenaunce uses del tens memore ne curt. ce est a sauer par la ou memes cele genz sa en arere en les tens les cuntes de bretayne, e en le tens le rey johan e le rey henri ke deus asoile e en le tens nostre seignur le rey edward ke deu gard e de tuz iceus a queus le maner avaunt dit a este done ou lesse a la volunte de reys avaunt nomes pur ke le cunte de bretayne e le viscunte de dohay mesnes le maner forfirent, unt vendu, done e lesse lur terres champestres per aper (?) saunz conge demaunder en curt, forpris lur mes e lur croftes, la vient mesme celuy richard bailif auant nome e lur terres saunz conge venduz per aper (?) ad seysi a greuuesement les ad amercie pur les tenemenz issi uendus solonc les usages de lur tenaunce. estre ce memes celuy richard a tort greve e distreint les genz auaunt nomes pur office de prouosterie e de coylure (collector) ne ils ne deyuent estre ne soleyent, mes les viles de costeseye et de banburg seruent et deyuent servir de tel office pur lur tenaunce charge de tel seruise. e priunt la grece lur seignur le rey ke il voyle fere enquere par pais si le plest coment ils deyuent tenir e ke la duresse fete a eus par le bailif auant dit seit redresse. estre ce les poure genz auant nomes sunt mut enpoureriz pur un taylage voluntref ke le bailif alianor reyne de engletere la mere nostre seignur le rey ke deus asoile nut pris a tort de an en an ce est a sauer xx markes de hom apele communage ke auaunt sun tens ne fut donc mes a la premere venue de nouel signur une conisaunce de cs. cum fu done a nostre seignur le rey edward kant le maner li fu done forpris les viles de costeseye e de banburg ke sunt taylables haut e bas a la volunte le rey cum costemers del maners. pur ce est ke les paure genz auaunt nome priunt la grace nostre seignur le rey si le plest pur le regard de pite ke il empreynt pite de eus e lur face suffrir lur usages del tens dunc memore ne curt e grace del torteuus taylage pur le quel il sunt mut empoairiz. ix. see p. , n. . [augmentation court rolls, xiv. .] (havering atte bower, essex.) curia ibidem tenta die iouis proxima ante festum s. iohannis ante portam latinam anno r. r. ricardi secundi post conquestum vicesimo. ricardus rex ballivis thome archiepiscopi ebor et edwardi comitis de hauering atte boure. precipio vobis quod sine dilatione et secundum consuetudinem manerii de hauering atte boure plenum rectum teneatis roberto merston de london et ricardo quylter de hauering etc. hec est finalis concordia facta in curia thome archiepiscopi cantuar et edwardi comitis roteland apud hauering atte boure--coram ricardo wytl ... tunc senescallo et ricardo wylde tunc ballivo et aliis domini regis fidelibus tunc ibi presentibus inter etc. curia thome archiepiscopi cantuarensis et edwardi comitis roteland tenta ibidem die iouis proxima ante festum s. bartholomaei apostoli anno r. r. ricardi secundi post conquestum vicesimo primo. inquisicio ex officio coram ricardo wythmerssh senescallo de haueryng atte boure per sacramentum walteri herstman----juratorum qui dicunt supra sacramentum suum quod alicia dyere que de domino rege tenuit duas acras terre in marisco obiit seisita. et quod thomas de donne filius predicte alicie est eius heres propinquior et plene etatis, ideo preceptum seisire dictam terram in manus domini et respondere de exitu quali etc. item dicunt quod idem thomas ingressus est feodum domini videlicet unum mesuagium cum pertinentiis in romford quod habuit ex dono et feofamento iohannis cole ideo preceptum ipsum distringere pro fidelitate et relevio etc. item predicta inquisitio onerata super sacramentum suum si aliquis homo nativus de sanguine ingressus fuerit feodum domini nec ne et quantum feodum illud valeat per annum dicit quod non est aliquis homo nativus de sanguine ingressus feodum domini. set dicunt quod est quidam iohannes shillyng qui sepius dictus fuerat fore nativus. et dicunt ultra quod quidam iohannes shillyng pater predicti iohannis fuit alienigena et quod predictus iohannes shillyng quo ad eorum cognitionem est liber et libere conditionis et non nativus. item prefata inquisitio dicit quod robertus clement de london sadelere ingressus est feodum domini videlicet unum mesuagium cum pertinenciis in romford quod habuit ex dono et concessione iohannis cole taillor ideo preceptum ipsum distringere pro fidelitate et relevio etc. item dicunt quod quidam homo veniens in comitiva domini regis dimisit quemdam equum in hospicio iohannis atte heth et cepit ibidem unum alium equum etc. et dimisit predictum equum ibidem stare per unum mensem absque aliquid clamando de predicto equo ideo preceptum dictum equum seisire ad opus domini regis et inde regi respondere. curia ibidem tenta die iouis proxima post festum s. martini anno r. r. ricardi secundi post conquestum vicesimo primo. compertum est per inquisicionem ex officio captam per sacramentum thome olyuere ... qui dicunt super sacramentum suum quod quidam iohannes pecok quondam tenuit unam peciam terre in marisco vocatam wattiscroft pro qua quidem terra reparabat et reparare tenebatur quoddam murum in marisco erga tamisiam in defensum aque inundantis. et idem iohannes pecok de terra predicta obiit seisitus. et quod quidam iohannes filius predicti iohannis pecok est eius heres propinquus. et dicunt quod predictus murus est wastatus pro defectu reparacionis ita quod aque tamisie inundans superfluit murum predictum et demergit mariscum predictum ad grave dampnum domini regis et tenencium suorum. et predictus iohannes filius iohannis pecok in propria persona sua dicit quod non supponitur per presentacionem predictam quod terra predicta vocata wattiscroft prefato iohanni filio predicti iohannis pecok descendebat post mortem iohannis pecok patris sui nec quod predictus iohannes filius iohannis pecok aliquo tempore fuit tenens terre predicte vocate wattiscroft. et si videtur curie quod protestacio est sufficiens, etc. dicit per protestacionem quod ipse non fuit heres predicti iohannis pecok patris sui tempore mortis sue, etc. et ulterius protestando dicit quod predicta terra vocata wattiscroft tenetur ad communem legem. et ulterius dicit pro placito quod ipse numquam habuit poscessionem manualem de terra predicta set dicit quod quidam iohannes harwere post decessum predicti iohannis patris sui et longo tempore ante inquisicionem predictam captam intravit in terram predictam ad usum cujusdam iohannis selman ... _et dictum est pro domino rege_ quod predictus iohannes filius predicti iohannis pecok fuit tenens terre predicte die quo inquisicio predicta capta fuit. et petitum est per dominum regem quod inquiratur per patriam. et pro predicto iohanne filio, etc. similiter. [jurati] dicunt super sacramentum suum quod predictus iohannes pecok vivente predicto iohanne patre suo occupavit predictam terram vocatam wattiscroft per voluntatem patris sui et cepit inde exitus et proficua. et postea predictus iohannes pecok pater, etc. obiit post cujus mortem predictus iohannes filius, etc. intrauit ut filius et heres et terram predictam ocupavit et inde cepit exitus proficua, etc. et dicunt quod est eorum consuetudo quod nullus homo adquireret sibi aliquam terram in marisco que oneratur ex reparacione alicuius muri in marisco erga tamisiam nisi haberet sufficientem tenuram in eodem dominio extra mariscum que poterit portare omnes reparaciones illius muri in marisco quum necesse fuerit. et dicunt esciam quod iohannes selman non fuit tenens terre predicte vocate wattiscroft die quo officium predictum captum fuit set quod predictus iohannes filius, etc. terram predictam occupavit usque in diem quo predictum officium captum fuit. et dicunt quod est ad dampnum domini regis quod murus predictus non fuit reparatus predicto die, etc. de triginta et octo solidis uno obolo. curia ibidem tenta die iouis in festo s. iohannis apostoli et evangeliste anno r. r. ricardi post conquestum vicesimo primo. dominus rex mandauit breue suum clausum ballivis edwardi ducis albemarle de haueryng atte boure ... precepimus vobis quod sine dilacione et secundum consuetudinem manerii de haueryng atte boure plenum rectum teneatis ricardo filio iohannis legati de uno mesuagio viginti et octo acris terre et una acra prati cum pertinenciis, etc.... et predictus ricardus invenit plegios ad prosequendum breue predictum ... et fecit protestacionem ad sequendum breue predictum in natura breuis de convencione. virtute cuius brevis preceptum ballivo quod summonere faciat per bonos summonitores secundum consuetudinem manerii de haueryng atte boure, etc.... curia tenta ibidem die iouis proxima ... vicesimo tercio. dominus rex mandauit breue suum clausum ballivis suis de haueryng atte boure. curia ibidem tenta die iouis proxima ante festum s. laurencii martiris anno r. r. ricardi secundi post conquestum vicesimo tercio.... ricardus dei gratia rex anglie ... ballivis suis de haueryng, etc. hec est finalis concordia facta in curia domini regis de haueryng atte boure die iouis ... coram ricardo withmerssh tunc senescallo et iohanne bokenham tunc balliuo et aliis domini regi fidelibus tunc presentibus inter w., etc. x. see p. , n. . exchequer q.r. ancient miscellanea. / (no date, about .) inquisitio: will's frere walt's michel joh'es broket } rob's diaconus elias de leyes thomas coker } rob's snellyng elias pany will's hardyng } joh'es longus godefrid' newman will's walysce } joh'es ordmar } qui dicunt subscripta per sacramentum suum. { estrelda } man' apud { maur' ate { agnes } machynge { neuthon' { { joh'es rotlonde } { joh'es { walt's rotlonde } man' { rotlonde { thomas rotlonde } london'. { { { joh'es pany { { will's pany { will's pany { ric's pany { { elias pany--modo tenens { { agnes pany { nativus-- { nich's ate { simon ate nullus ab eo. { neuthon' { neuthon' { { { ric's le couper { { thomas le { simon le couper { { couper { joh'es le couper { { { isabella la couper { { { { joh'es bate walt's ate neuthon'--modo { { tenens { { cristina will's { { { { wymarks nullus ab eo { pater extraneus { { will's woderove ignotus adhuc { joh'es galfr's { n. propter { woderove woderove { n. diurnitatem { temporis { will's nullus ab eo { vaccarius { steph's pistor { { will's pistor { { will's { rog's pistor { { pistor { joh'es pistor { { { cristina pistor nativus-- { rog's ate { { isabella neuthon' { cristina ate nullus ab eo (_sic_) { neuthon' { joh'es broket { { joh'es broket junior { agnes ate { matild' broket neuthon' { isabella broket { agnes broket nativus-- { alanus ate nullus ab eo { hache { { ric's ate hache junior { { nich's ate hache { { rog's ate hache { { will's ate hache { { will's ate hache { { adam ate { will's ate hache { { hache { joh'es ate hache { { { alic' ate hache { { { matild' ate hache { { { emmot' ate hache nativus-- { rog's ate { { marger' ate hache { hache { { { matild' ate nullus ab eo editha la daye { hache { orgor' ate nullus ab eo { hache { will's ate broke { { walt's ate broke { { walt's ate broke { { ranulfus ate { ric's ate broke--london' { { broke { cristin' ate broke { { { matild' ate broke nativus-- { walt's ate { { agnes ate broke hache { { { walterus mathy { { will's mathy { matheus ate { agnes mathy { broke { emmot' mathy { { mathild' ate nullus ab ea. broke xi. see p. , n. . the best way to form an opinion as to the position of the hundredors among other classes will be, i think, to start from a closer examination of the ely surveys, which give the term several times. they are peculiar in this respect, and only in this. a comparison with other cartularies will show at once, that the same thing is to be found elsewhere over and over again. both ely surveys--that of (tiberius, b. ii) and that of (claudius, c. xi)--are remarkably alike, and may serve as an illustration of the continuity of the fundamental organisation of a feudal village. i shall take the later cartulary because it is a trifle fuller, and coincides in time with the hundred rolls. it would not be sufficient to give only the entries relating to the hundredors, because the reader would not be able to judge of their position in relation to other classes. i may be allowed in consequence to present rather large extracts. in the manor of wilburton belonging to the ely minster we find the following classification of the tenantry[ ] [f. sqq.] _de hundredariis. et libere tenentibus._ philippus de insula tenet acras de mara et debet sectas ad curiam elyensem et ad curiam de wilbartone, _et in quolibet hundredo per totum annum_. et dat ad sixþepany et wardpany, et arabit cum caruca sua per duos dies in hyeme et habebit quolibet die unum denarium. et arabit in xl^{ma} per dies et habebit quolibet die unum denarium.... et inveniet omnes tenentes suos ad magnam precariam autumpni ad cibum episcopi. et dabit pro filia sua. ricardus filius rogeri tenet acras de ware et debet sectas ... (the same as philip). et dabit leirwite pro filia sua et gersumam cum ipsam maritare uoluerit, scilicet et den. et tallagium cum aliis. et de herieto meliorem bestiam uel et denarios, si non habeat bestiam. oues sue non iacebunt in faldo domini.... _de operariis et plenis terris._ samson filius jordani tenet acras terre de wara que faciunt unam plenam terram ... et sciendum quod tota villata, tam liberi quam alii, debent facere perticatas super calcetum de alderhe sine cibo et opere. in lyndon the division of the tenantry is somewhat more complex [f. sqq.]. _de militibus._ philippus de insula tenet tres carucatas in hinegeton per seruicium unius militis. et sciendum quod omnes tenentes sui ibidem debent uenire ad precariam carucarum episcopi cum quanto iungant per duos dies in hyeme et per dies in xl^{ma} ... et dominus philippus de insula debet sectam ad curiam elyensem. et ad curiam de lyndon, in aduentu senescalli. nigellus de cheucker tenet carucatas terre per seruicium unius militis cum terra sua de harefeud ... et liberi tenentes sui _qui tenent per soccagium debent unam sectam ad frendlese hundred_, scilicet ad diem sabbati proximum post festum s^{ti} michaelis. _de hundredariis._ robertus de aula tenet acras terre de wara per _seruicium sequendi curiam elyensem_. _et quodlibet hundredum et curiam de lyndon...._ et ueniet ad precarias cum caruca sua ... et inueniet omnes tenentes suos ad magnam precariam episcopi in autumpno ad cibum domini. et ipsemet ibit ultra eos eo die. et habebit cibum suum similiter cum balliuis domini. et _ueniet coram justiciariis ad custum suum proprium ... et sciendum quod iste et quilibet hundredarius_ dabit gersumam pro filia sua maritanda, scilicet denarios. et dominus episcopus habebit meliorem bestiam de domo sua pro herietto siue denarios, si bestiam non habuerit et operabitur super calcetum de alderhe sine cibo pro se et tenentibus suis. galfridus le sokeman tenet acras et dimidiam de wara.... _de consuetudinariis qui vocantur molmen._ patrik filius henrici le frankeleyn tenet acras terre in hylle pro duobus solidis ... et ueniet ad precariam carucarum cum caruca sua uel cum quanto iungit ... et debet sectas ad curiam de lyndon ... et dabit gersumam pro filia sua maritanda ad voluntatem domini. et in obitu suo dominus habebit meliorem bestiam domus pro hereto uel triginta duos denarios, si bestiam non habuerit. et dabit tallagium. et filius suus et heres dabit releuium. _de operariis qui tenent plenas terras._ radulfus filius osbern tenet unam plenam terram que continet acras de wara. the next survey is that of dudington (f. sqq.). _de libere tenentibus et hundredariis in dudlingtone et wimblingtone._ (the typical hundredor is made to pay merchet, leyrwite, and heriet as above.) _de consuetudinibus censuariorum in dudingtone._ radulfus filius willelmi tenet unum mesuagium quod continet dimidiam acram pro denariis.... et dabit gersumam pro filia sua et leyrwite ad voluntatem domini. et dupplicabit redditum suum pro suo releuio. _de consuetudinibus operariorum in dudington._ (they hold 'full lands' of acres, and perform all kinds of agricultural work.) if we turn now to the survey of wyvelingham (f. sqq.), we shall not find the heading '_hundredarii_,' but it will not be difficult to discern the tenants who correspond to the hundredors of the former surveys. _de libere tenentibus._ henricus torel tenet dimidiam virgatam terre pro decem et octo denariis equaliter. et ueniet in autumpno ad magnam precariam domini cum omnibus hominibus suis quot habuerit laborantes ad cibum domini. et dabit tallagium si dominus voluerit. et gersumam pro filia sua. et debet sectam curie et molendini. et ibit cum aliis extra uillam ad districtiones faciendum. willelmus nuncius tenet dimidiam virgatam pro denariis equaliter. et faciet omnia alia sicuti predictus henricus torel. thomas filius oliue tenet unam virgatam terre pro denariis equ. ad festum s^{ti} andreae. et arabit tres rodas terre per annum.... et herciabit cum equo suo ante natale per unum diem integrum sine cibo et per unum diem in quadragesima sine cibo ... et falcabit cum uno homine per unum diem integrum sine cibo. et adiuuabit fenum leuandum et cariandum sine cibo. et sarclabit per unum diem integrum sine cibo. et illud quod messuerit cariabit sine cibo. item portabit breuia domini episcopi uel senescalli usque ad dudington uel ad locum consimilem. et dabit tallagium, herietum et leyrwite, et gersumam pro filia sua. et _debet sectam comitatus hundredi, et curie_, et molendini. oues sue iacebunt in faldo domini ut supra.... _de operariis._ thomas wecheharm tenet dimidiam virgatam terre que continet acras terre. in shelford (f. sqq. cf. rot. hundr. ii. ) there are only two main headings: 'de militibus' and 'de consuetudinariis et censuariis;' but i think it is quite evident from the survey that the first ought to run 'de militibus et libere tenentibus,' or something to the same effect, and that it includes the hundredors. _de militibus._ johannes de moyne miles tenet unum mesuagium et unam rodam terre que fuit coteria operabilis in tempore galfridi de burgo elyensis episcopi pro duobus solidis equ. idem johannes tenet unum mesuagium quod fuit michaelis de la greue pro den. equ. et inueniet unum hominem ad quamlibet trium precariarum ad cibum domini. et metet dimidiam acram de loue-bene sine cibo. et inueniet unum hominem ad fenum leuandum et tassandum in curia domini episcopi. et dabit tallagium cum consuetudinariis pro tanta portione. johannes filius nicholai collogne tenet dimidiam hydam terre _per seruicium sequendi comitatum et hundredum_. idem tenet quartam partem curie sue pro uno niso (_sic_) uel duobus solidis.... in stratham the molmen are reckoned with the freeholders and hundredors (f. ). _de libere tenentibus et censuariis._ walterus de ely miles tenet acras de wara unde debet sectam _ad curiam de ely. et ad curiam de stratham. et in hundredum de wycheford...._ et faciet omnes consuetudines sicut johannes filius henrici subscriptus. johannes filius henrici folke tenet acras de wara. et debet _sectam hundredi per totum annum, scilicet ad quodlibet hundredum et sectam ad curiam de ely et de stratham_.... et dabit gersumam pro filia sua maritanda. _de consuetudinibus operariorum_, etc. the entries quoted are sufficient, it seems, to establish the following facts:-- . the hundredors of the ely minster are people holding tenements burdened with the obligation of representing the manor in the hundred and in the county. . the tenure may be quite distinct from the personal condition of the holder. a knight may possess the tenement of a hundredor in one place and a military fee in another (philip de insula in wilburton and in lyndon.) . a free tenant is not _eo ipso_ a hundredor. some holdings are singled out for the duty. (henry torel, william 'nuncius,' and thomas filius olive in wyvelingham. cf. lyndon.) . in many cases the hundredors are mentioned without being expressly so called, and such cases present the transition between the ely surveys and other cartularies which constantly speak of privileged tenants holding by suit to the hundred and to the county. (see the quotations on p. , n. , and p. , n. .) but there is another side to the picture. in the cases of which we have been speaking till now the obligation to attend the hundred and the county is treated as a service connected with tenure, and has to meet the requirements of the state which enforces the representation of the villages at the royal courts. such a system of representation follows from the conception of the county and of the hundred as political parts of the kingdom on the one hand, and as composed of manors and villages or vills, on the other. this may be called the _territorial_ system. but another conception is lingering behind it--that namely of the county, as a folk, and of the hundred, as an assembly of the free and lawful population. the great hundred is derived from it, but even in the ordinary meetings all the freeholders are entitled, if not obliged, to join. the manor and the vill have nothing to do with this right, which is not one of representation, but an individual one and extends to a whole class. this may be called the _personal_ system of the hundred. it is embodied in the so-called 'leges' of henry i. and therefore we find constantly in the documents, that the suit to the hundred, to the county, and also that to the sheriff's tourn and to meet the justices, are mentioned in connection with two different classes of people. on one hand stand the representatives of the township, on the other the free men, free tenants or socmen bound individually to attend the hundred and to perform other duties which are enforced on the same pattern. the hundred rolls give any number of examples. i. : liberi homines de witlisford et quatuor homines et prepositus solebant venire ad turnum vicecomitis set post bellum de evesham per baldewynum de aveny subtracta fuit illa secta, set nesciunt quo warranto. i. : idem abbas (de wauthan) subtraxit ad turnum vicecomitum sectam hominum et prepositi de manerio suo de esthorndone et de liberis hominibus suis in eadem villa et in villa de stanford. i. : omnes liberi tenentes et quatuor homines et prepositus de morton valence subtraxerunt sectam ad turnum vicecomitis bis in anno ad idem hundredum. in shropshire we find the question put to the jurors of the inquest (ii. ): si homines libere tenentes et homines et prepositus de singulis villis venerint ad summonicionem sicut preceptum est. ii. : dominus ricardus comes gloverniae subtraxit thethingas videlicet stockgiffard, estharpete stuctone et westone de hundredo de wintestoke et ipsas sibi appropriavit. item dicunt quod thomas de ban ... et ceteri libere tenentes predictarum thethingarum solebant sequi dictum hundredum et se subtraxerunt a termino predicto. ii. : dicunt quod una decena de borewyk et alia decena chyletone cum liberis hominibus subtrahuntur de hundredo domini regis de la hane. i. : manerium de collecote et liberi sokemanni tenentes in dicto manerio solebant facere sectam ad hundredum de kenoteburie et subtracti sunt a tempore alani de fornham quondam vicecomitis usque nunc. the last instances quoted do not speak directly of the four men and the reeve, but their meaning is quite clear and very significant. the suit of the tithing and of the manor is contrasted with the personal suit of the free tenants. we find often entries as to the attendance of the manor, the township, or the tithing. i. : dicunt quod abbas de theokesberie pro terra sua in codrinton ... episcopus wygorniensis pro manerio suo de clyve per quatuor homines et prepositum solebant facere sectam ad istum hundredum ad turnum vicecomitis bis in anno usque ad provisiones oxonienses. i. : villata de monston per annos et villata de stratton per annos subtraxerunt sectam hundredi. i. : dicunt quod idem walterus (de bathonia) removit villanos de sepwasse in forinsecum et feofavit liberos de eadem terra in quo terra quidam tuthinmannus (_corr._ quedam tethinga?) jungi solebat et sequi ad hundredum forinsecum predictum et est secta ejusdem tethinge subtracta de tempore regis henrici patris regis edwardi anno ejus quarto. it appears that the feoffment of free tenants was no equivalent for the destruction of the tithing. the entry is remarkable but not very clear. (cf. i. , ii. , and maitland, introduction to the selden soc. vol. ii, pp. xxxi, xxxiii.) in any case the main facts are not doubtful. the population of the kingdom was bound to attend the assemblies of the hundred and of the county by representatives from the villages or tithings, which sometimes, though not always, coincided with the manors. there were many exceptions of different kinds, but the crown was striving to restrict their number and to enforce general attendance at least for the tourn and the eyre. the representation in these last cases, though much wider and more regular than at the ordinary meetings of the hundred and of the shire, was constructed on the same principles, and the difference lay only in the measure in which the royal right was put into practice against the disruptive tendencies of feudalism. the inquest in the beginning of edward i's reign gives us a very good insight into the inroads from which the organisation had to suffer, especially in troubled times[ ]. this attendance of the township is mentioned in marked contrast with the suit of the free tenants or socmen, which is also falling into disuse on many occasions, and also supposes a general theory, that the free people ought to attend in person. an important point in the process which modified the representation of the vills in the hundred has to be noticed in the fact, that the suit from a single village was not considered as a unit which did not admit of any partition. when the village itself was divided among several landlords the suit was apportioned according to their parts in the ownership instead of remaining, as it were, outside the partition. we might well fancy that the township of dudesford, though divided between the abbots of buttlesden and of oseney, would send its deputies as a whole, and would designate them in a meeting of the whole. we find in reality, that the fee of one of the owners has to send three representatives, and the fee of the other two (rot. hundr. i. ; cf. i. , ). this gives rise to a difficulty in the reading of our evidence. the hundred rolls speak not only of suit due from the village, the tithing, or the manor, but also of the suit from the tenement. in one sense this may mean that the person holding a free tenement was bound to attend certain meetings of the commons of the realm. in another it was an equivalent to saying that a particular tenement was bound to join in the duty of sending representatives to such meetings. in a third acceptation of the words they might signify, that a particular tenement was charged to represent the village in regard to the suits, and for this reason privileged in other respects. a few extracts from the hundred rolls will illustrate the difficulty. i. : dicunt quod johannes de boneya tenuit quoddam tenementum in stocke quod solet facere sectam ad comitatum et hundredum, que secta postea subtracta fuit per regem alemanniae, etc. was john de boneya a socman bound to attend personally, or a hundredor, a hereditary representative of the village of stocke? ii. : prior de michulham subtraxit sectas et servicia tenencium in manerio suo de chyntynge qui solebant facere sectam et servicium hundredo de faxeberewe et sunt subtracti per annos ad dampnum dicti hundredi sol. per annum. the twenty-five tenants in question may be villains joining to send representatives in scot and in lot with the village (cf. i. , ), or free socmen personally bound to attend. ii. : prior de kenilworth subtraxit, etc., de una virgata terre in lillington annis elapsis et de virgatis in herturburie annis elapsis ... qui solent sequi ad hundredum de tribus septimanis in tres septimanas. here it would be difficult to decide whether the suit is apportioned between the tenements of the village on the principle of their contributing jointly to perform the services, or else bound up with these particular virgates as representing the village (cf. i. ). i notice this difficulty because it is my object in this appendix to treat the evidence as it is given in the documents, and to help those who may wish to study them at first hand. but as we are immediately concerned with the position of the 'hundredor,' i shall also point out that there are cases where a doubt is hardly possible. the tenant who is privileged on account of the duties that he performs in representing his village in the hundred court, may be easily recognised in the following examples. ii. : dicunt quod rogerus hunger de preston solebat sequi comitatum et hundredum _pro villa de preston_ in tempore henrici de audithelege tunc vicecomitis salop annis elapsis, mortuo vero predicto roberto hunger, abbas de lilleshul qui intratus fuit in predictam villam per donum roberti de budlers de mungomery extraxit (_corr._ subtraxit) predictam sectam ^{ti} annis elapsis nesciunt quo warranto, unde dominus rex dampnificatus est per illam subtraxionem, si idem abbas warrantum inde non habet de solidis. i. : johannes de grey subtraxit se de secta curie pro villata de chilton de uno anno et die (_corr._ et dimidio), unde dominus rex dampnificatus est in denariis. though the institution of the hundredors has found expression in the hundred rolls, the name is all but absent from them. the rare instances when it occurs are especially worthy of consideration. i have three times seen a contraction which probably stands for it, but in one case it applies distinctly to the hundred-reeve or to a riding bailiff of the hundred. i. (inquest of the hundred of hirstingstan, hunts): dicunt etiam quod homines ejusdem soke rescusserunt aueria que el. hundredarius ceperat pro debito domini regis levando et impedierunt eum ad summoniciones faciendum de assisis et juratis et equum ipsius el. duxerunt ad manerium de someresham et eum ibi detinuerunt quousque deliberavit omnia averia per ipsum capta. the case is different in regard to the description of aston and cote, oxfordshire. it is printed on p. of the second volume of the hundred rolls, but printed badly. the decisive headings are not given accurately, and i shall put it before the reader in the shape in which it stands in the ms. at the record office. the passage is especially interesting because of the peculiar constitution of the manor of bampton, to which aston and cote belong. (see gomme, village community.) hundred rolls, oxford. chancery series, no. , m. . § tenentes abbatis { § robertus le caus tenet in eadem j. mesuagium et in eadem. { ij. virgatas terræ de abbate de eygn', et reddit { per annum dicto abbati eygn' iij._s._ § hundr' in { § stephanus le niwe tenet in eadem j. mesuagium aston'. { et ij. virgatas terræ de eodem, et reddit per { annum dicto abbati xv._s._ vij._d._ ob. q. { § robertus de haddon' tenet in eadem j. mesuagium { [et] j virgatam terræ de domino w. de valencia, { et reddit per annum dicto w. de valencia j._d._ § servi. { § henricus toni tenet in eadem j. mesuagium [et] { j. virgatam terræ de abbate de eygn', et reddit { eidem pro redditu iiij._s._ pro opere iiij._s._ { iiij._d._ ob. q. { § willelmus toni tenet in eadem j. mesuagium [et] { j. virgatam terræ de dicto abbate, et reddit per { annum eidem pro redditu iiij._s._, pro opere { iiij._s._ ix._d._ ob. q. { § nicholaus toni tenet in eadem consimile { tenementum de eodem pro consimili servicio { faciendo eidem. { § emma lovel tenet in eadem j. mesuagium et { dimidiam virgatam terræ cum v. acras de eodem, { et reddit per annum dicto abbati xj._s._ iij._d._ { § johanna galard tenet in eadem dimidiam virgatam { terræ de dono willelmi fratris sui, et reddit { eidem per annum vj._d._; et idem willelmus tenet { de hereditate per defensum antecessorum suorum, § lib[ere] { qui dictam dimidiam virgatam terrae habuerunt tenentes. { de dono reg[is], cujus nomen ignoramus. { § thomas wyteman tenet in eadem j. virgatam terræ { de philippo de lenethale, et est de confirmatione { reg[is], ut dicta dimidia virgata terræ { præscripta; et tenetur de willelmo gallard { prædicto, et reddit per annum dicto philippo { xij._d._ [the abbot above mentioned was the abbot of eynsham.] the _hundr. in aston_ in the margin can hardly admit of any other extension but _hundredarius_ or _hundredarii_. it seems then, that the term is applied to three tenants named first. the reason for thinking so is, that all these three are assessed at certain rents without any mention of labour services, whereas the three tenants who are next mentioned pay so much as rent and so much more in commutation of labour service, 'pro servitio.' the inference would be, that the names in the beginning apply to people burdened with suit to the hundred and to the shire, and therefore exempted in other respects. their rents are very unequal, but in any case lower than those of the men immediately following. one very important feature admits of no dispute; the hundredors are described as _servi_, that is villains, in opposition to the free tenants of the abbot of eynsham. we know already from the text that the hundredors, if the name be applied here as in the ely surveys, occupied an intermediate position, and in one sense had certainly to rank with the villains, people of base tenure belonging to the townships. even a more difficult example is contained in the fragment of the warwickshire hundred roll. the oft-mentioned description of stoneleigh in that document begins of course with the demesne land of the abbot, then mentions two villains and thirty free cotters holding 'ad terminum vitae.' then follows a list of five more free cotters. on the margin between the two sets we read 'de hundred de stonle.' to whom does this phrase apply? there is nothing in the tenure which would enable us to make a positive distinction between the two sets, and it would seem that the expression has in view some duties assigned in the roll to the first thirty tenants in conjunction with the villains. it is written immediately in front of the following passage: 'omnes supradicti cotarii ipsius abbatis debent sectam ad curiam suam bis in anno. et si contingat quod aliquis captus sit in dicto manerio debet imprisonari apud stanle et tunc omnes villani et cotarii supradicti ipsum servabunt et in custodia eorum erit dum ibi fuerit sumptibus suis et sumptibus tocius manerii.' the uncertainty of terminology is not without its meaning: the word 'hundredarius' did not get into general use, but it was used in several places for different purposes. it may apply to a bailiff of the hundred, perhaps to the alderman, to the standing representative of a village at the hundred court, and possibly to all the free men who had to do personal suit to this court. it is not in order to impose a uniform sense upon it, that i have treated of it at this length. but in one of its meanings, in that which is given by the ely surveys, we find a convenient starting point for discussing the position of an important and interesting class in which the elements of freedom and servitude appear curiously mixed. xii. see p. , n. . it did not occur to the men of the thirteenth century that it would be important to distinguish between the different modes by which free tenements had been created. to draw the principal distinction was enough for all practical purposes. stray notices occur however that give some insight into the matter. very often we find tenements held _per cartam_, probably because this kind of title was rather exceptional and seemed to deserve a special mention, while commonly land was held without charter, on the strength of a ceremonial investiture by the lord. this last mode does not find uniform expression in the documents, but the implied opposition to holding by charter is sometimes stated in express terms which bring out one or the other feature of free land holding. one of the questions addressed to the jurors--from whose verdicts the hundred rolls were made, was--si aliquis liber sokemannus de antiquo dominico alii sokemanno vendiderit vel alio modo alienaverit aliquid tenendum libere per cartam[ ]? the _free_ sokeman's tenure is meant, although the inquest is taken on ancient demesne soil, and the point is that none of these persons can alienate by charter, but must use the ceremonial surrender in the court of ancient demesne according to the custom of the manor. i have already drawn attention to the remarkable opposition between free customary tenure and holding by charter. it is chiefly important because it discloses a traditional element in the formation of the socman's tenure. the same traditional element appears in other cases in which the special position of the socman is not concerned. in warwickshire a free tenant by sergeanty is said to hold his land without charter by warrant from ancient times, and the peculiar obligations of his sergeanty are described at some length[ ]. the charter appears here in contrast with ancient ownership, to the origin of which no date can be assigned. a similar case is that of over, cambs.[ ] robert de aula holds two virgates of the abbot of ramsey _de antiquo conquestu_ and seven virgates _de antiquo_. further on a certain robert mariot is mentioned holding five virgates of robert de aula _de antiquo feffamento_. the weight falls, in all these expressions, on the _de antiquo_, which may even appear without any further qualification. of these qualifications one is interesting in itself, i mean 'de conquestu.' in the language of those times it may stand either , for conquest in the sense in which that term is now commonly used, or , for purchase, or , for occupation. the first of these meanings is naturally out of the question in our case. the second does not apply if we take heed how the expressions interchange: it could be replaced by feoffamentum in the third instance, and could not have fallen out after de antiquo in the second. ancient occupation fits well, and such a construction is supported by other passages. in ayllington (elton), hunts, e.g., we find the chief free tenants all, with one exception, holding _de conquestu_ in contrast with the mesne tenants who are said to hold _per cartam_. the opposition is again clearly between traditional occupation and new feoffment settled by written instrument. in sawtrey beaumeys, on the other hand, the mode of holding de conquestu seems exceptional[ ]. another terminological opposition which finds expression in the surveys is that between men who hold _per homagium_ and those who hold _per fidelitatem_. it seems to be commonly assumed that free tenements owe homage, but without disputing the point in a general way i shall call attention to the description of kenilworth in the warwickshire roll, in which _libere tenentes_ are said to hold _per fidelitatem et nullum faciunt homagium_[ ]. the deviation must probably be accounted for by the fact that the castle of kenilworth was royal demesne and had been given to edmund, the brother of king edward i; the peculiar condition described was certainly a species of customary freehold or socman's tenure. the upshot is, that we find in the hundred rolls traces of freeholds possessed by ancient tenure, 'without charter and warrant,' according to customs which came down from the time of the conquest, or the original occupation of the land, or from a time beyond memory. the examples given are stray instances but important nevertheless, because we may well fancy that in many cases such facts escaped registration. and now how are all these traces of the 'traditional' element to be expressed in legal language? from what source did the right of such people flow? how did they defend it in case it was contested? the absence of a charter is not by itself a reason to consider this kind of tenure as separated from the usual freehold. a feoffment might well be made without a charter[ ]. as long as the form of the investiture by the lord had been kept, it was sufficient to create or to transmit the free tenancy. but the warranty of the lord and the feoffment were necessary as a rule. and here we find cases in which there is no warranty, and the lord is not appealed to as a feoffor. they must be considered as held by surrender and admittance in court and as being in this respect like the tenements of the sokemen. i do not see any other alternative. as to the sokemen we find indeed, that their right is contrasted with feoffment and at the same time considered as a kind of free tenancy, that it is defended by manorial writs, and at the same time well established in custom[ ]. but can we say that the warranty of the lord is less prominent in this case than in the _liberum tenementum_ created by the usual feudal investiture? surrender seems to go even further in the direction of a resumption by the lord of a right which he has conferred on the dependent. if surrender stood alone, one would be unable to see in what way this customary procedure could be taken as an expression of 'communal guarantee.' but the surrender is coupled with admittance. the action of the steward called upon to transmit by his rod the possession of a plot of land is indissolubly connected with the action of the court which has to witness and to approve the transaction. the suitors of the court in their collective capacity come very characteristically to the front in the admittance of the socman, and it is on their communal testimony that the whole transaction has to rest. the rolls of stoneleigh and of king's ripton give many a precious hint on this subject[ ]. i speak of the socmen in ancient demesne, but there can be no doubt that originally the different classes of this group called socmen were constantly confused and treated as one and the same condition. the free socmen and the base or bond socmen, the population of manors in the hands of the crown, of those which had passed from the crown to subjects, and, last but not least, a vast number of small proprietors who held in chief from the king without belonging to the military class, and without a clearly settled right to a free tenement--all these were treated more or less as variations of one main type. what held them together was the suit owed to some court of a royal manor which had 'soke' over them[ ]. ultimately classification became more rigid, and theoretically more clear; free and socman's tenure were fused into the one 'socage' tenure, well known to later law, but we must not forget that common law socage is derived historically from a very special relation, and that the socman appears even in terminology as distinct from the 'libere tenens.' i must admit, however, that it is only with the help of the documents of saxon times and of the conquest period, that it will be possible to establish conclusively the character of the tenure as that of a 'customary freehold.' xiii. see pp. , . the passage on which the text of these two pages is based may be found in a survey of the dunstaple priory. the portion immediately concerned is inscribed: 'notulae de terris in segheho' (ff. , ). the walter de wahull in question is probably the baron of that name (dugdale, baron. i. ), who joined the rebellion of along with the earl of leicester, and was made a prisoner (rad. de diceto i. , ; ann. dunstapl. ). harl. ms. , f. . § tempore conquestus terrae, dominus de wahull et dominus de la leie diviserunt inter se feudum de walhull', widelicet, dominus de walhull' habuit duas partes, et dominus de la lee, tertiam, scilicet, unus xx. milites, et alius x. volens autem dominus de wahull' retinere ad opus suum totum parcum de segheho, et totum dominicum de broccheburg', fecit metiri tertiam partem in bosco et in plano. postea, fecit metiri tantumdem terrae, ad mensuram praedictae tertiae partis, in loco qui nunc vocatur nortwde, et in bosco vicino, qui tunc vocabatur cherlewde; et abegit omnes rusticos qui in praedicto loco juxta praedictum boscum manebant. hiis ita gestis, mensurata est terra de segheho, et inventae sunt viii. ydae vilenagiae. de hiis viii. ydis conputata est quarta acra ad unam summam, et inventa est quod haec summa valebat tertiam partem parci et dominici. dedit ergo dominus de wahull' domino de la leie, scilicet, stephano, pro tertia parte quam debuit sortiri in bosco et in dominico, culturas praedictorum rusticorum, et boscum qui nunc vocabatur cherlewd', nunc nortwd'. dominus autem de la leie dedit hanc terram bald' militi suo, patri roberti de nortwd'. et inter terram praedictorum rusticorum habuimus de dono ecclesiae unam acram. pro hac acra robertus pater gileberti dedit nobis [in] escambium aliam acram quae abutiat ad fenmed', et jacet ad vest, juxta terram nigelli de chaltun'. de ista praedicta acra in nortwd' quae nostra fuit, jacet roda una ad lomputtes, scilicet, roda capitalis. alia roda jacet ad uest curiae roberti praedicti; quae curia ipsius roberti primo fuit ad uest, quam post obitum patris mutavit, transferendo horrea sua de uest usque hest. tres gorae jacent pro dimidia acra, et abutiant ex una parte versus viam quae dicitur via de nortwd', et ex alia parte versus edmundum filium uctred'. procedente tempore, tempore guerrae praedictae viii. ydae et ceterae de segheho fuerunt occupatae a multis injuste; et ob hoc recognitio fuit facta coram waltero de wahull', et coram hugone de leia, et in plena curia, per vi. senes, et per ipsum robertum, de hac nostra acra et de omnibus aliis terris, scilicet, quae acrae ad quas hidas pertineant: et per hanc recognitionem, restituit nobis robertus praedictam acram. uctredus drengus mansit ad uest de via de nortwde, et grangiae ejus fuerunt ex alia parte viae, scilicet, hest. tempore quo omnes tenentes de segheho, scilicet, milites, liberi homines, et omnes alii incerti et nescii fuerunt de terris et tenementis ville, et singuli dicebant alios injuste plus aliis possidere, omnes communi consilio, coram dominis de wahul' et de la leie, tradiderunt terras suas per provisum seniorum et per mensuram pertici quasi novus conquestus dividendas, et unicuique rationabiliter assignandas. eo tempore recognovit radulfus fretetot quod antecessores sui et ipse injuste tenuerant placiam quandam sub castello, que placia per distributores et per perticam mensurata est, et divisa in xvj buttos; et jacent hii butti ad fulevell', et abut[tant] sursum ad croftas ville. hii butti ita partiti sunt. octo yde sunt in segheho de vilenagio: singulis ydis assignati sunt ii. butti. ecclesiae vero dotata fuit de dimidia yda: ad hanc dimidiam ydam assignatus fuit unus buttus: sed postquam illum primum habuimus, bis seminatus fuit, et non amplius, quia ceteri omnes non excol[un]t ibi terram, sed ad pascua reservant: un[de] est, quia locus remotus est, nec pratum habemus nec bladum. he terre prenominate sunt in campo qui dicitur hestfeld. summa, xix acre et tres rode. xiv. see p. , n. . cotton ms. galba e. x. f. . hec est firma unius cuiusque uille que reddit plenam firmam duarum ebdomadarum. duodecim quarteria farine ad panem monachorum suorumque hospitum que singula faciunt quinque treias ramesie, et unaqueque treia appreciatur duodecim denariis precium uniuscuiusque quarterii fuit quinque sol. summa precii quarteriorum, sol. et millia panum uillarum uel quarteria ad usum seruientium. precium unius mille dimidiam marcam argenti. summa precii integra marca. ad potum missa de grut quarum singulas faciunt una treia ramesii et una ringa. appreciatur una missa den. summa precii de brasio sol. sunt et septaria mellis den. sunt summa precii sol. et den. ad compadium libre in denariis et decem pense lardi. precium unius pense sol. sunt. summa precii obol. et decem pense casei. precium unius pense solidi sunt. summa precii sol. et decem frenscengie peroptime. precium uniuscuiusque sunt den.--et agni. agnus pro denario--et galline, pro den.--et ovorum. precium unius mille sol. sunt.--et tine butiri. precium unius tine den.--et treie fabarum. prec. treie den. sunt. et misse prebende. precium unius misse den.--summa precii totius supradicte firme libre sunt et sol. et den. exceptis libris supradictis, que solummodo debent dari in denariis de unaquaque plena firma duarum ebdomadarum. et postquam hec omnia reddita fuerunt, firmarius persoluet solidos in denariis, uno denario minus, et sic implebuntur libre plenae in dica cellerarii et unum mille de allic sine dica et firmarius dabit present cellerario ter in anno sine dica. villa que reddit firmam plenam unius ebdomade, dimidium omnium supradictorum reddet. excepto quod unaqueque villa cuiuslibet firme sit, uel duarum ebdomadarum, uel unius plene firme, uel unius lente firme, dabit equaliter ad mandatum pauperum denarios de acra elemosin. villa que reddit lente firmam unius ebdomade, omnino sicut plena firma unius ebdomade reddet. exceptis quinque pensis lardis et pensis casei quas non dat set pro eis solidos in denariis et alios sol. sicut plena firma. xv. see p. , n. . ayllington or elton, hunts, is remarkable on account of the contrast between its free and servile holdings, as described in the hundred rolls. it would be interesting to know whether the former are to be considered as ancient free tenements, or as the outcome of modern exemptions. the hundred rolls point in the first direction (ii. ). some of the tenements under discussion are said to be held de conquestu, and it would be impossible to put any other interpretation on this term than that of 'original occupation.' it means the same as the 'de antiquo conquestu' of other surveys (sup. p. ). but when we compare the inquisition published in the ramsey cartulary (rolls ser. i. sqq.) we come upon a difficulty. there the holdings are constantly arranged under the two headings of _virgatae operariae_ and _virgatae positae ad censum_, the population is divided into _operarii_ and _censuarii_, and in one case we find even the following passage: 'item quaelibet domus, habens ostium apertum versus vicum, tam de malmannis, quam de cotmannis et operariis, inveniret unum hominem ad lovebone, sine cibo domini, praeter ricardum pemdome, henricum franceys, galfridum blundy, henricum le monnier.' and so most of the free people are actually called _molmen_, and this would seem to imply that they were _libere tenentes_ only in consequence of commutation. it seems to me that there is no occasion for such an inference. the _molmen_ in the passage quoted are evidently the same as the _censuarii_ of other passages, and although, in a general way, the expression _mal_ was probably employed of quit-rents, still it was wide enough to interchange with _gafol_, and to designate all kinds of rents, without any regard to their origin. and of course, this is even more the case with _census_. upon the whole, i do not see sufficient reason to doubt that we have freeholders before us who held their land and paid rent ever since the original occupation of the soil. index. agreement as the origin of free tenure, ; between lord and village, . akerman, . amercement, . ancient conquest, . ancient demesne, definition, , ; privileges, ; tenantry, ; saxon origin, , ; courts, . ancient freehold, , . anelipeman, . approvement, . assarts, . assessment, . assisa terra, . aston and cote, oxon, , . astrier, . auxilium, . averagium, , , . aver-earth, . aver-land, . ayllington (elton), hunts, , . bailiff, . balk, . barlick-silver, . beadle, . ben-earth, . birth, influence on status, . blackstone, view of english history, ; on copyholds, ; on ancient demesne tenure, . board-lands, . bockyng, essex, . bondus, . boonwork, . borda, . bordarius, , . borough english, , , . bosing-silver, . bovati, . bracton, on villainage, ; on status, ; on convention between villain and lord, ; on waynage, ; on villain tenure and villain services, ; on villain socage, , , ; on rights of common, . braseum, . britton, on prescription, ; on the prohibition against devising villains, ; on privileged villainage, . butta, . campus, . carriage duties, . carta, , . carucarius, . censuarius, . ceorls, palgrave on, ; connexion with villains, ; history of the term, . chevagium, . churchscot, . common, of pasture, ; appendant and appurtenant, ; intrinsec and forinsec, ; of wood, . communal liability, . communitas villanorum, . commutation, , . conquest, norman, , , , conquest, saxon, palgrave on, ; kemble on, ; freeman on, ; seebohm on, . conveyancing, , . copyhold, , , , . cornage, . cornbote, . costeseye, norfolk, . cotland, . cottarius, cotsetle, cottagiarius, . court baron, . court leet, . court of ancient demesne, . court roll, , . criminal law, . curia, plena curia, , . custom, , , , , . custumarius, consuetudinarius, , . day-work, . defence, . demesne, , ; free tenements carved out of it, ; its development, . denerata, . dialogus de scaccario, on villainage, ; on englishry, ; on the conquest, , . domesday survey of kent, ; on classes, . donum, . election of manorial officers, . elton, c.i., on ancient demesne tenure, ; on shifting ownership of arable, . ely surveys, . emphyteusis, . enfranchisement, by feoffment, ; modes of manumission, ; by convention, ; as gradual emancipation, , . essartum, . exemption from labour, , . extraneus, . fald-silver, . farm, feorm, , . fastnyng-seed, . fealty, , . feoffment, , . ferdel, . ferlingsetus, . festuca, . feudalism, kemble on, ; influence on villainage, ; oppression, . field systems, . filstnerthe, filsingerthe, . firmarius, . fish-silver, . fleta on the hide, . fleyland, . foddercorn, . food-rents, . forinsecus, . forland, . frank pledge, villains in, , ; and leet, . free bench, . freeman, edw., . french revolution, . fustel de coulanges, , . gafol, , . gafol-earth, . gathercorn, . gavelkind, . gavelman, . gavelseed, . gebur, . geneat, . gersumarius, . gild, . glanville, on status, ; on manumission, . gneist, r., . godlesebene, . gomme, on early folk-mots, . gora, . grass-earth, . hale, archdeacon, on the farm system, . halimote, , . hallam, his work on the middle ages, ; on villainage, . hand-dainae, . havering atte bower, essex, , . headland, . heriot, . hidage, . hide, , , ; kemble on, . hidarius, . hitchin, herts, . holding, , , , , ; origin, . homagium, . hundred, , , . hundredarius, , , , . hundred rolls, on merchet, ; on free tenements, . huntenegeld, . husfelds, . inheritance, . inhoc, . inland, . intermixture of strips, , , . jugum, , . juratores curiae, . kemble, . kentish custom, , . king's ripton, hunts, , , , . labourers, hired, . lammas-meadow, . landchere, . landgafol, . landsettus, . leases, of demesne land, ; for life and term of years, . legal theory, , . lentenearth, . levingman, . liberaciones, liberaturae, , . liber homo, ; as suitor of halimote, . libere tenens, , , , ; customary freeholder, , ; as overseer of labour, , ; subjected to the manorial arrangement, ; forinsecus, ; as suitor of halimote, . linch, . littleton, on villains regardant and in gross, . lodland, . lord, origin of his rights, ; amercements, ; control over villain land, will and pleasure, , ; as owner of the waste, ; equity, ; growth of his power, . lundinarium, . lurard, . maine, sir henry, . maitland, f.w., on john fitz geoffrey's case, ; on hundred and county courts, , ; on the leet, ; on the division of manorial courts, ; on manorial presentments, ; on court of honor, ; on the manor, . mal, , . malt-silver, . manor, blackstone's theory, , ; influence on status, , , ; general organisation, ; husbandry, ; in relation to the township, ; its elements, . manuoperationes, . mark, . marriage, , . martin of bertenover _v._ john montacute, . maurer, g.f. von, . maurer, konrad, . meadows, . mederipe, . men of halvergate _v._ roger bigod, earl of norfolk, . men of king's ripton _v._ abbot of ramsey, , . men of tavistock _v._ henry of tracy, . men of wycle _v._ mauger le vavasseur, , . merchet, , , . messarius, messor, . ministeriales, , , . mirror of justice, . molland, . molmen, . mondayland, . monopolies, manorial, . monstraverunt, writ of, , , , , . nasse, e., . nativus, , , . neat, niet, . ne injuste vexes, writ of, . nook, . note-book of bracton, on conventions of lord with villain, ; on martin of bestenover's case, ; on manumission, ; on the tavistock case, . nummata, . oath of fealty, . open field systems, , ; nasse on, ; seebohm on, ; origin, . operarius, . palgrave, sir francis, . pannage, . parvum breve de recto, , . pasture, . pedigree of villains, . pell, o., on acrewara, . penyearth, . petitions to the king, . ploughing work, . plough team, , . police, in relation to villainage, , . pollock, sir frederic, on conventions with villains, . precariae, , , . prepositus, . prescription, . presentments in the halimote, . prior of hospitalers _v._ ralph crips and thomas barentyn, , . prior of ripley _v._ thomas fitz-adam, . prohibition against selling animals, . quare ejecit infra terminum, writ of, . quit-rent, . quo jure, writ of, , . radacre, . reaping work, . recognition, . reeveship, . regular arrangement, of villain holdings, , ; of free holdings, ; of socmen's holdings, . relief, . remuneration of servants, . rent, , , ; trifling, ; of free tenants, . revision of procedure, . rofliesland, . roger fitz william _v._ abbot of bury st. edmunds, . rogers, j. thorold, on legal theory, ; on manorial documents, . roman influence, palgrave's view, ; french scholars, ; seebohm, . rotation of crops, . royal jurisdiction, . scrutton, t.e., . scutage, . scythepenny, . seebohm, f., . segheho, beds, , . self-government, communal, , . selio, . seneschal, . sequela, . serfdom, , . serland, . servientes, . services, implying villainage, ; uncertain, ; certain on ancient demesne, ; labour, , , . servus, , . shareholding, , . sixteen of aston and cote, . slavery, , . socagium ad placitum, . sockemanemot, . soke, . socmen, free, , , ; on ancient demesne, , , ; villain, , , ; nature of tenure, , . solanda, . status, . statute of labourers, , . statute of merton, . statute of westminster ii, , . steward, , . stoneleigh abbey, , , , , , . stubbs, w., . suitors of halimote, ; in ancient demesne court, ; free, . sulung, . surrender and admittance, , . symon of paris _v._ h. bailiff of sir r. tonny, . tallage, . tenmanland, tunmanland, . teutonic influence, palgrave on, ; german scholars, ; kemble, ; freeman, ; stubbs, ; gneist, . township, . turnbedellus, . tywe, . undersette, . unlawenearth, . vagiator, . village community, nasse on, ; maine, ; seebohm, ; acting in the interest of the lord, ; acting independently of the lord, ; as a farmer, ; its relation to the manor, . villain, sold, ; opposed to serf, ; civil disabilities, , , ; free as to third persons, ; convention with the lord, , ; waynage, , ; not to be devised, ; claimed by kinship, , ; on ancient demesne, ; in manorial documents, , . villainage, definitions, ; exception of, ; in gross and regardant, , , . villain tenure, , ; free man holding in villainage, , , ; held by labour services, . virga, , . virgata, virgatarius, , . walter of henley, on field systems, ; on the hide, . wara, . ward-penny, . waynage, , . week-work, . william fitz henry _v._ bartholomew fitz eustace, . william fitz robert _v._ john cheltewynd, . william taylor _v._ roger of sufford, . wista, . wood-penny, . workman, . wye, kent, . yerdling, . york powell, f., on manumission, . footnotes: [ ] miss lamond's edition of walter of henley did not appear until the greater part of my book was in type. i had studied the work in ms. so also i studied the cartulary of battle abbey in ms. without being aware that it had been edited by mr. scargill bird. had mr. gomme's village communities come to my hands at an earlier date i should have made more references to it. [ ] english historical review, no. . [ ] in his considérations sur l'histoire de france. [ ] history of boroughs. [ ] ancient rights of the commons of england. [ ] quoted by palgrave, english commonwealth, i. , from the second edition of . the first appeared in . [ ] the first edition of the commentaries appeared in . i have been using that of . [ ] 'es war eine zeit, in der wir unerhörtes und unglaubliches erlebten, eine zeit, welche die aufmerksamkeit auf viele vergessene und abgelebte ordnungen durch deren zusammensturz hinzog.' niebuhr in the preface to the first volume of his roman history, quoted by wegele, geschichte der deutschen historiographie, . [ ] enquiry into the rise and progress of the royal prerogative, . [ ] history of the english commonwealth, ; normandy and england, . [ ] i do not give an analysis of hallam's remarkable chapters on england in his work on the middle ages (first edition, ), because they are mostly concerned with constitutional history, and the notes on the classes of saxon and anglo-norman society are chiefly valuable as discussions of technical points of law. hallam's general position in historical literature must not be underrated; he is the english representative of the school which had guizot for its most brilliant exponent on the continent. in our subject, however, the turning-point in the development of research is marked by palgrave, and not by hallam. heywood (dissertation on ranks and classes of society, ) is sound and useful, but cannot rank among the leaders. [ ] histoire de la conquête de l'angleterre par les normands. [ ] histoire du tiers état. [ ] histoire du droit municipal. [ ] prolégomènes au polyptyque de l'abbé irminon. [ ] histoire des institutions de la france; recherches sur quelques problèmes d'histoire. [ ] gregor von tours und seine zeit. [ ] deutsche verfassungsgeschichte. [ ] geschichte des beneficialwesens, ; feudalität und unterthanenverband, . [ ] roth is very strong on this point. [ ] ueber angelsächsische rechtsverhältnisse, in the munich kritische ueberschau, i. sqq. ( ). [ ] k. maurer is very near waitz in this respect. [ ] see especially his englische verfassungsgeschichte. [ ] einleitung in die geschichte der hof-, dorf-, mark- und städteverfassung in deutschland, vol.; geschichte der frohnhöfe, vol.; geschichte der dorfverfassung, vol.; geschichte der markenverfassung, vol.; geschichte der städteverfassung, vol. [ ] collected in volumes of agrarhistorische untersuchungen. [ ] zur geschichte der mittelalterlichen feldgemeinschaft in england, . [ ] i do not mention some well-known books treating of medieval husbandry and social history, because i am immediately concerned only with those works which discuss the formation of the medieval system. thorold rogers, history of agriculture and prices, and six centuries of work and wages, begins with the close of the thirteenth century, and the passage from medieval organisation to modern times. ochenkovsky, die wirtschaftliche entwicklung englands am ende des mittelalters, and kovalevsky, england's social organisation at the close of the middle ages (russian), start on their inquiry from even a later period. [ ] is it necessary to say that i am speaking of general currents of thought and not of the position of a man at the polling booth? an author may be personally a liberal and still his work may connect itself with a stream of opinion which is not in favour of liberalism. again, one and the same man may fall in with different movements in different parts of his career. actual life throws a peculiar light on the past: certain questions are placed prominently in view and certain others are thrown into the shade by it, so that the individual worker has to find his path within relatively narrow limits. [ ] the last great german work on our questions, lamprecht, deutsches wirthschaftsleben im mittelalter, is nearer maurer than sternegg. [ ] thorold rogers, history of agriculture and prices, i. ; six centuries of work and wages, . cf. chandler, five court rolls of great cressingham in the county of norfolk, , pp. viii, ix. [ ] stubbs, seventeen lectures, , ; maitland, introduction to the note-book of bracton, sqq. [ ] dial. de scacc. ii. (select charters, p. ). cf. i. ; p. . [ ] glanville, v. ; bracton, , ; fleta, i. ; britton, ed. nichols, i. . [ ] bracton, ; britton, i, . pollock, land-laws, app. c, is quite right as to the fundamental distinction between status and tenure, but he goes too far, i think, in trying to trace the steps by which names originally applying to different things got confused in the terminology of the common law. annotators sometimes indulged in distinctions which contradict each other and give us no help as to the law. the same cambridge ms. from which nichols gives an explanation of _servus_, _nativus_, and _villanus_ (i. ) has a different etymology in a marginal note to bracton. 'nativus dicitur a nativitate--quasi in servitute natus, villanus dicitur a villa, quasi faciens villanas consuetudines racione tenementi, vel sicut ille qui se recognoscit ad villanum in curia quae recordum habet, servus vero dicitur a servando quasi per captivitatem, per vim et injustam detentionem villanus captus et detentus contra mores et consuetudines juris naturalis' (cambr. univers. mss. dd. vii. . i have the reference from my friend f.w. maitland). [ ] placita coram rege, easter, edw. i, m. : 'willelmus barantyn et radulfus attachiati fuerunt ad respondendum agneti de chalgraue de placito quare in ipsam agnetem apud chalgraue insultum fecerunt et ipsam verberaverunt, vulneraverunt et male tractaverunt, et bona et catalla sua in domibus ipsius agnetis apud chalgraue scilicet ordeum et avenam, argentum, archas et alia bona ad valenciam quadraginta solidorum ceperunt et asportaverunt; et ipsam agnetem effugaverunt de uno mesuagio et dimidia virgata terre de quibus fuit in seysina per predictum willelmum que fuerunt de antiquo dominico per longum tempus; nec permiserunt ipsam agnetem morari in predicta villa de chalgraue; et eciam quandam sororem ipsius agnetis eo quod ipsa soror eam hospitavit per duas noctes de domibus suis eiecit, terra et catalla sua abstulit. et predicti willelmus et radulfus veniunt. et quo ad insultacionem et verberacionem dicunt quod non sunt inde culpabiles. et quo ad hoc quod ipsa agnes dicit quod ipsam eiecerunt de domibus et terris suis, dicunt quod predicta agnes est natiua ipsius willelmi et tenuit predicta tenementa in villenagio ad voluntatem ipsius willelmi propter quod bene licebat eidem willelmo ipsam de predicto tenemento ammouere.--juratores dicunt ... quod predicta tenementa sunt villenagium predicti willelmi de barentyn et quod predicta agnes tenuit eadem tenementa ad voluntatem ipsius willelmi.' cf. y.b. / edw. iii (ed. pike), p. sqq., 'or vous savez bien qe par ley de terre tout ceo qe le vileyn ad si est a soun seignour;' sqq., 'qar cest sa terre demene, et il les puet ouster a sa volunte demene.' [ ] coram rege, mich., edw. i, m. : 'ricardus de assheburnham summonitus fuit ad respondendum petro de attebuckhole et johanni de eadem de placito quare, cum ipsi teneant quasdam terras et tenementa de predicto ricardo in hasseburnham ac ipsi parati sunt ad faciendum ei consuetudines et servicia que antecessores sui terras et tenementa illa tenentes facere consueverint, predictus ricardus diversas commoditates quam ipsi tam in boscis ipsius ricardi quam in aliis locis habere consueverint eisdem subtrahens ipsos ad intollerabiles servitutes et consuetudines faciendas taliter compellit quod ex sua duricia mendicare coguntur. et unde queruntur quod, cum teneant tenementa sua per certas consuetudines et certa servicia, et cum percipere consueverunt boscum ad focum et materiam de bosco crescente in propriis terris suis, predictus ricardus ipsos non permittit aliquid in boscis suis capere et eciam capit aueria sua et non permittit eos terram suam colere.--ricardus dicit, quod non debet eis ad aliquam accionem respondere nisi questi essent de vita vel membris vel de iniuria facta corpori suo. dicit eciam quod nativi sui sunt, et quod omnes antecessores sui nativi fuerunt antecessorum suorum et in villenagio suo manentes.' [ ] note-book of bracton, pl. : 'dominus rex non vult se de eis intromittere.' [ ] it occurs in the oldest extant plea roll, ric. i; rot. cur. regis, ed. palgrave, p. : 'thomas venit et dicit quod ipsa fuit uxorata cuidam turkillo, qui habuit duos filios qui clamabant libertatem tenementi sui in curia domini regis ... et quod ibi dirationavit eos esse villanos suos, et non defendit disseisinam ... et ipsi elilda et ricardus defendunt vilenagium et ponunt se super juratam,' etc. [ ] maitland, select pleas of the crown (selden soc. i), pl. : 'quendam nativum suum quem habuit in vinculis eo quod voluit fugere.' bract. notebook, pl. : 'petrus de herefordia attachiatus fuit ad respondendum r. fil. th. quare ipse cepit ricardum et eum imprisonauit et coegit ad redempcionem marce. et petrus venit alias et defendit capcionem et imprisonacionem set dicit quod villanus fuit,' etc. it must be noted, however, that in such cases it was difficult to draw the line as to the amount of bodily injury allowed by the law, and therefore the king's courts were much more free to interfere. in the trial quoted on p. , note , the defendants distinguish carefully between the accusation and the civil suit. they plead 'not guilty' as to the former. and so bishop stubbs' conjecture as to the 'rusticus verberatus' in pipe roll, henry i, p. (constit. hist. i. ), seems quite appropriate. the case is a very early one, and may testify to the better condition of the peasantry in the first half of the twelfth century. [ ] as to the actual treatment experienced by the peasants at the hands of their feudal masters, see a picturesque case in maitland's select pleas of the crown (selden soc.), . [ ] stubbs, constitutional history, ii. , ; freeman, norman conquest, v. ; digby, introduction to the law of real property, . [ ] sir thomas smith, the commonwealth of england, ed. , p. , shows that the notion of two classes corresponding to the roman _servus_ and the roman _adscriptus glebae_ had taken root firmly about the middle of the sixteenth century. 'villeins in gross, as ye would say immediately bond to the person and his heirs.... (the adscripti) were not bond to the person but to the mannor or place, and did follow him who had the mannors, and in our law are called villains regardants (sic), for because they be as members or belonging to the mannor or place. neither of the one sort nor of the other have we any number in england. and of the first i never knew any in the realme in my time. of the second so fewe there bee, that it is not almost worth the speaking, but our law doth acknowledge them in both these sorts.' [ ] section is not quite consistent with such an exposition, but i do not think there can be any doubt as to the general doctrine. [ ] i need not say that the work done by mr. horwood, and especially by mr. pike, for the rolls' series quite fulfil the requirements of students. but in comparison with it the old year books in rastall's, and even more so in maynard's edition, appear only the more wretchedly misprinted. [ ] for instance, liber assisarum, ann. , pl. (f. ): 'quil fuit son villein et il seisi de luy come de son villein come regardant a son maneir de b. en la counte de dorset.' [ ] y.b. hil. edw. ii: 'iohan de rose port son [ne] vexes vers labbe de seint bennet de holme, et il counta qil luy travaille, etc., e luy demande.' _migg._: 'defent tort et force, ou et quant il devera et dit qil fuist le vilein labbe, per qi il ne deveroit estre resceve.' _devom._: 'il covient qe vous disez plus qe vous estes seisi, ut supra,' etc. _migg._: 'il est nostre vileyn, et nous seisi de luy come de nostre vileyn.' _ber._: 'coment seisi come,' etc.? _migg._: 'de luy et de ces auncestres come de nos vileynes, en fesant de luy nostre provost en prenant de luy rechate de char et de saunk et redemption pur fille et fitz marier de luy et de ces auncestres et a tailler haut et bas a nostre volente, prest,' etc. (les reports des cases del roy edward le ii. london, ; f. .) [ ] i do not think it ever came into any one's mind to look at the plea rolls in this matter. even hargrave, when preparing his famous argument in somersett's case, carried his search no further than the year books then in print. and in consequence he just missed the true solution. he says (howell's state trials, xx. , ),'as to the villeins in gross the cases relative to them are very few; and i am inclined to think that there never was any great number of them in england.... however, after a long search, i do find places in the year books where the form of alledging villenage in gross is expressed, not in full terms, but in a general way; and in all the cases i have yet seen, the villenage is alledged in the ancestors of the person against whom it was pleaded.' and he quotes edw. ii, ; edw. ii, (corr. for ); edw. ii, , and edw. ii, . but all these cases are of edward ii's time, and instead of being exceptional give the normal form of pleading as it was used up to the second quarter of the fourteenth century. they looked exceptional to hargrave only because he restricted his search to the later year books, and did not take up the plea rolls. by admitting the cases quoted to indicate villainage in gross, he in fact admitted that there were only villains in gross before or thereabouts, or rather that all villains were alike before this time, and no such thing as the difference between _in gross_ and _regardant_ existed. i give in app. i the report of the interesting case quoted from edw. ii. [ ] y.b. / edw. i (horwood), p. : 'quant un home est seisi de son vilein, issi qil est reseant dans son vilenage.' fitzherbert, abr. vill. ( edw. iii): '... villeins sunt appendant as maners qe sount auncien demesne.' on the other hand, 'regardant' is used quite independently of villainage. y.b. / edw. iii (pike), p. : 'come services regardaunts al manoir de h.' [ ] y.b. hil. edw. ii, f. : 'r. est bailli ... del manoir de clifton ... deins quel manoir cesti j. est villein.' [ ] see app. i and ii. [ ] y.b. trin. edw. ii, f. : 'le manoir de h. fuit en ascun temps en la seisine hubert nostre ael, a quel manoir cest vileyn est regardant.' [ ] y.b. trin. edw. iii, f. . for the report of this case and the corresponding entry in the common pleas roll, see appendix ii. [ ] cf. annals of dunstaple, ann. mon. iii. : 'quia astrarius eius fuit,' in the sense of a person living on one's land. [ ] bracton, f. , b. [ ] bract. note-book, pl. , , . cf. spelman, gloss. v. astrarius. kentish custumal, statutes of the realm, i. . fleta has it once in the sense of the anglo-saxon heorð-fæst, i. cap. , § (f. ). [ ] bracton, f. . [ ] littleton, sect. . cf. fortescue, 'de laudibus legum angliae,' c. . [ ] littleton, sect. . [ ] bracton, ff. , , b. [ ] i need not say that there were very notable variations in the history of the roman rule itself (cf. for instance, puchta, institutionen, § ), but these do not concern us, as we are taking the roman doctrine as broadly as it was taken by medieval lawyers. [ ] mater certa est. gai. inst. i. . [ ] see fitz. abr. villenage, pl. ( edw. iii): 'ou il allege bastardise pur ceo qe si son auncestor fuit bastard il ne puit estre villein, sinon par connusance.' there was a special reason for turning the tables in favour of bastardy, which is hinted at in this case. the bastard's parents could not be produced against a bastard. he had no father, and his mother would be no proof against him because she was a woman [fitz. abr. vill. ( edw. i), par ce qe la feme ne puit estre admise pur prove par lour fraylte et ausi cest qi est demaunde est pluiz digne person qe un feme]. it followed strictly that he could be a villain by confession, but not by birth. the fact is a good instance of the insoluble contradictions in which feudal law sometimes involved itself. [ ] bracton, f. : 'servus ratione qui se copulaverit villanae in villenagio constitutae.' bract. note-book, : 'juratores dicunt quod predictus aluredus habuit duos fratres hugonem [medium] medio tempore natum et gilibertum postnatum qui nunc petit, set hugo cepit quamdam terram in uillenagio et duxit uxorem [uillanam] et in uillenagio illo procreauit quemdam filium qui ad huc superest.... et bene dicunt quod ... iste gilibertus propinquior heres eius est, ea racione quod filius hugonis genitus fuit in uillenagio.' [ ] y.b. / edw. i, p. sqq.: 'usage de cornwall est cecy qe la ou neyfe deyt estre marier hors de maner ou ele est reseant, qe ele trovera seurte ... de revenir a son _ny_ ov ses chateux apres la mort de son baroun.' bracton, f. , 'quasi avis in nido.' [ ] bract. note-book, pl. : 'nota quod libera femina maritata uillano non recuperat partem alicuius hereditatis quamdiu uillanus uixerit.' [ ] bract. note-book, pl. : 'nota quod mulier que est libera uel in statu libero saltem ad minus non debet disseisiri quin recuperare possit per assisam quamuis nupta fuerit uillano set hereditatem petere non poterit.' bract. note-book, pl. : 'et uillani mori poterunt per quod predicte sorores petere possint ius suum.' fitzherb. villen. (p. edw. ii.): 'les femmes sont sans recouverie _vers le seignior_ uiuant leur barons pur ce que ils sont villens.' cf. bracton, f. . [ ] another instance of the influence of marriage on the condition of contracting parties is afforded by the enfranchisement of the wife in certain cases. the common law was, however, by no means settled as to this point. y.b. / edw. i, p. sqq.: 'la ou le seygnur espouse sa neyfe, si est enfranchi pur toz jurs; secus est la ou un homme estrange ly espose, qe donk nest ele enfraunchi si non vivant son baroun, et post mortem viri redit ad pristinum statum.' fitzherb. vill. (p. edw. iii): 'si home espouse femme qe est son villein el est franke durant les espousailles. mes quand son baron est mort el est in statu quo prius, et issint el puis estre villein a son fils demesne.' it is quite likely that gentlemen sometimes got into a state of moral bondage to their own bondwomen, and were even led to marriage in a few instances, but the law had not much to feed upon in this direction, i imagine. [ ] fitzherbert, vill. (h. edw. iii; p. edw. iii, ): 'si home demurt en terre tenue en villenage de temps dount, etc., il sera villen, et est bon prescripcion et encountre tel prescripcion est bon ple a dire qe son pere ou ayle fuit adventiffe,' etc. i suppose _ayle_ here to be a simple error for _ayl_ or _ael_, grandfather. [ ] cambridge univ., dd. vij. , f. : 'nota de tempore quo servus dicere poterit quia fecerit consuetudines villanas racione tenementi non racione persone. et sciendum, quod quamdiu servus poterit verificare stipitem suam liberam non dicitur nativus, set quam citius dominus dicere poterit villicus noster est ex auo et tritauo, tunc primo desinit gaudere replicacione omnimoda et privilegio libertatis racione stipitis, ut si a. primo ingressus villenagium tenuerit de f. per villana servitia, deinde b. filius a., deinde c. filius b., deinde d. filius c., et sic tenuerint in villenagium de gradu in gradum usque ad quartum gradum de f. et heredibus suis, ille uillanus inuentus in quinto gradu descendente natiuus dicitur.' i am indebted for this passage to the kindness of prof. maitland. [ ] britton, i. , . [ ] hale, pleas of the crown (ed. ), ii. , gives an interesting record from edward i's reign, which shows that even the general theory was doubtful. [ ] dial. de scacc. i. . p. : 'ea propter pene quicumque sic hodie occisus reperitur, ut murdrum punitur, exceptis his quibus certa sunt ut diximus servilis condicionis indicia.' on the other hand the dialogus lays stress on the fact, that if a villain's chattels get confiscated they go to the king and not to the lord (ii. . p. ), but this is regarded as a breach of a general principle. [ ] glanville, xiv. : 'per ferrum callidum si fuerit homo liber, per aquam si fuerit rusticus.' [ ] lighter offences committed by the lord could not give rise to prosecution, but the _persona standi in iudicio_ was admitted in a general way even in this case. a curious illustration of the different footing of villains in civil and criminal cases is afforded by a trial of richard i's time. richard of waure brings an appeal against his man and reeve, robert thistleful, for conspiring with his enemies against his person. he offers to prove it against him, 'ut dominus, vel ut homo maimatus, sicut curia consideraverit.' reeves were mostly villains, and the duty of serving as a reeve was considered as a characteristic of base condition. the lord probably goes to the king's court because he wants his man subjected to more severe punishment than he could inflict on him by his own power. (rot. cur. regis ricardi, .) [ ] the lord had power over their property, but against everybody else they were protected by the criminal law. [ ] sometimes the system is used so as to enforce servitude. see court rolls of ramsey abbey. augmentation court rolls, edw. i, portf. , no. , m. d. (aylington): 'adhuc dicunt quod johannes filius ricardi dunning est tannator et manet apud heyham, set dat per annum pro recognicione duos capones. et quia potens est et habet multa bona, preceptum fuit hugoni achard et eius decennae ad ultimum visum ad habendum ipsum ad istam curiam, et non habuit. ideo ipse et decenna sua in misericordia.' (this case is now being printed in selden soc. vol. ii. p. .) [ ] bracton, b: 'quia omnis homo siue liber siue seruus, aut est aut debet esse in franco plegio aut de alicuius manupastu, nisi sit aliquis itinerans de loco in locum, qui non plus se teneat ad unum quam ad alium, vel quid habeat quod sufficiat pro franco plegio, sicut dignitatem vel ordinem vel liberum tenementum, vel in civitatem rem immobilem.' nichols, britton, i. , gives a note from cambr. ms. dd. vii. , to the effect that 'villeins and naifs ought not to be in tithings, secundum quosdam.' this is certainly a misunderstanding, but it can hardly be accounted for either by the enfranchisement of the peasant or the decay of the frank-pledge. i think the annotator may have seen the passages in leg. cnuti or leg. henrici i, which speak about free men joining the tithings, or speculated about the meaning of 'plegium liberale.' there could be no thought of excluding the villains in practice during the feudal period. as to the allusion in the mirror of justices, i shall refer to it in appendix iii. [ ] see below, essay i. chap. vi. [ ] bract. note-book, pl. : 'et ricardus dicit quod assisa non debet inde fieri quia predictus iohannes dedit terram illam cuidam uillano ipsius ricardi, et ipse uillanus reddidit terram illam domino suo sicut emptam catallis domini sui, et quod ita ingressum habuit per uillanum illum in terram illam ponit se super iuratam.' liber assisarum, ann. . pl. . f. , shows that the statute _de religiosis_ could be evaded by the lord entering into his villain's acquest. 'levesque d'exester port un assise de no. diss. vers le tenaunt et _persey_ pur leuesque en euidence dit, que un a. que fuit villeine le evesque come de droit de sa eglise purchase les tenements a luy et ses heyres et morust seisie, apres que mort entra b. come fitz et heire, sur que possession pur cause de villeinage entra leuesque.--_wich._ home de religion ne puit pas recoverer per assise terre si title de droit ne soit troue en luy, et ou le title que est trouue en leuesque est pur cause de la purchace de son villein, en quel cas leuesque ne fuit compellable de entre sil nust vola mes puit auer eu ses seruices, et le statute voit quod terrae et tenementa ad manum mortuam nullo modo deueniant, per que il semble que nous ne possomus pas doner iudgement pur leuesque en ceo cas. _sanke_: de son villein ne puit il pas leuer ses seruices, ne accepter lesse par sa maine, car a ceo que ieo entend par acceptacion de homage ou de fealty per sa maine il serra enfraunchi, per quey necessite luy arcte dentre, et le statut nestoit pas fait mes de restreindre purchaus a faire de nouel, et non pas a defaire ceo qe fuit launcien droit dez eglises. et sur ceo fuerent aiournes en common bank, et illonque le judgement done pur leuesque sans difficultie,' etc. (see also the report of the same case in y.b. mich. edw. iii, pl. . f. .) [ ] bracton, f. : 'si ... stipulatus sit servus sibi ipsi, et non domino, id non statim acquiritur domino, quamuis illud (corr. ille) sit sub voluntate et potestate sua, antequam dominus apprehensus fuerit possessionem. quod quidem impune facere poterit, si voluerit, propter exceptionem,' etc. fitz. abr. vill. pl. (pasch. edw. iii): 'si le villen le roy purchase biens ou chatteux le properte de eux est en le roy sauns seisier. mes auter est de auter home, etc. mes sil purchas terre le roy doit seisier, etc. car _thorp._ dit que terre demurt terre tout temps, mes biens come boefs ou vache puit estre mange.' [ ] bracton, f. b: 'sic constat, quod qui sub potestate alterius fuerit, dare poterit. sed qualiter hoc cum ipse, qui ab aliis possidetur, nihil possidere possit? ergo videtur quod nihil dare possit, quia non potest quis dare quod non habet, et nisi fuerit in possessione rei dandae. respondeo, dare potest qui seisinam habet qualemcunque, et servus dare potest,' etc. in case of an execution for debt due to the king the goods of the villain were to be taken only when the lord's goods were exhausted. dialog. de scacc. ii. . p. . [ ] bracton, f. : 'et non competit alicui hujusmodi exceptio de villenagio, praeterquam vero domino, nisi utrumque probet, scilicet quod villanus sit et teneat in villenagio, cum per hoc sequatur, quod ad ipsum non pertineat querela sive assisa, sed ad verum dominum, et ideo cadit assisa quantum ad personam suam et non quantum ad personam domini.' cf. britton, i. . [ ] britton, i. ; littleton, ; bract. note-book, pl. : 'assisa venit recognitura utrum una uirgata terre cum pertinenciis in r. sit libera elemosina pertinens ad ecclesiam magistri iohannis de r. de r. an laicum feodum gaufridi beieudehe. qui venit et dicit quod non debet inde assisa fieri quia antecessores sui _feoffati fuerunt a conquestu anglie_ ita quod tenerent de ecclesia illa et redderent ei per annum x. solidos.... iuratores dicunt quod terra illa est feodum eiusdem ecclesie ita quod idem g. et antecessores sui semper tenuerunt de ecclesia.... et dicunt quod idem gaufridus est natiuus comitis warenne et de eo tenet in uilenagio aliud tenementum. postea uenit gaufridus et cognouit quod est uillanus comitis warenne. postea concordati sunt,' etc. [ ] example, fitz. abr. villen. . the proper reply to such a plea is shown by bract. note-book, pl. : 'et iohannes dicit quod hoc ei nocere non debet, quia quicquid idem dicat de uillenagio, ipsemet ut liber homo sine contradiccione domini sui terram illam dedit iohanni del frid patri istius iohannis pro homagio et seruicio suo ... consideratum est quod predictus iohannes recuperauit seisinam suam, et richerus in misericordia.' liber assis. ann. . pl. . f. gives the contrary decision: 'lassise agarde et prise, per quel il fuit troue quil [le defendant] fuit villein al counte ... mes troue fuit ouster que le counte ne fut unques seisie de la terre, ne onques claima riens en la terre, et troue fuit que le plaintif fuit seisie et disseisie. et sur ceo, le quel le plaintif recouerer, ou que le brief abateroit sont ajornes deuant eux mesmes a westminster. a que jour per opinion de la court le briefe abatu, per que le plaintif fuit non sue,' etc. [ ] a different view is taken by stubbs, i. . [ ] digby, real property, rd ed. p. . i may say at once that i fail to see any connexion between copyhold tenure and any express agreements between lord and villain. [ ] bracton, b: 'si autem dominus ita dederit sine manumissione, servo et heredibus suis tenendum libere, presumi poterit de hoc quod servum voluit esse liberum, cum aliter servus heredes habere non possit nisi cum libertate et ita contra dominum excipientem de villenagio competit ei replicatio.' cf. b and britton, i. ; fleta, ; littleton, secs. , . [ ] bracton, b: 'si autem in charta hoc tantum contineatur, habendum et tenendum tali (cum sit servus) per liberum servitium huiusmodi verba non faciunt servum liberum nec dant ei liberum tenementum ... quia tenementum nichil confert nec detrahit personae, nisi praecedat, ut dictum est, homagium vel manumissio, vel quod tantundem valet de concessione domini, scilicet quod villanus libere teneat et quiete et per liberum servitium, _sibi et haeredibus suis_. si autem hoc solum dicatur, quod teneat per liberum servitium [sibi et heredibus suis], si ejectus fuerit a quocunque non recuperet per assisam noue disseisine, ut liberum tenementum, quia domino competit assisa et non villano. si tamen dominus ipsum ejecerit, quaeritur, an contra dominum agere possit de conventione, cum prima facie non habet personam standi in judicio ad hoc, quod dominus teneat ei conventionem, videtur quod sic, propter factum domini sui, ut si agat de conventione, et dominus excipiat de servitute, replicare poterit de facto domini sui, sicut supra dicitur de feoffamento. nec debent jura juvare dominum contra voluntatem suam, quia semel voluit conventionem, et quamvis damnum sentiat, non tamen fit ei injuria et ex quo prudenter et scienter contraxit cum servo suo, tacite renunciavit exceptionem villenagii.' [ ] the freehold would be given and still 'non recuperet per assisam no. diss. quia domino competit assisa et non villano.' [ ] see my article, 'the text of bracton,' in the law quarterly review, i. , et sqq.; and maitland, introduction to the note-book of bracton, sqq. [ ] the cambridge mss. have been inspected for me by mr. maitland. [ ] comp. bracton, f. b: 'quia ex quo mentionem fecit de heredibus praesumitur vehementer, quod dominus voluit servum esse liberum _quod quidem non esset, si de heredibus mentionem non fecerit_.' [ ] bracton, f. b: 'est etiam villenagium non ita purum, sive concedatur libero homini _vel villano_ ex conventione tenendum pro certis servitiis et consuetudinibus nominatis et expressis, quamvis servitia et consuetudines sunt villanae. et unde si liber ejectus fuerit vel villanus _manumissus vel alienatus_ (_corr. alienus_ best mss.) recuperare non poterunt ut liberum tenementum, cum sit villenagium et cadit assisa, vertitur tamen in juratam ad inquirendum de conventione propter voluntatem dimittentis et consensum, quia si quaerentes in tali casu recuperarint villenagium, non erit propter hoc domino injuriatum propter ipsius voluntatem et consensum, et contra voluntatem suam jura ei non subveniunt, quia si dominus potest _villanum manumittere et feoffare_ multo fortius poterit _ei quandam conventionem facere_, et quia si potest id quod plus est, potest multo fortius id quod minus est.' we have here another difficulty with the text. the wording is so closely allied to the passage on b. just quoted, and the last sentences seem to indicate so clearly that the case of a privileged villain is here opposed to manumission and feoffment, that the 'villanus manumissus vel alienus' looks quite out of place. is it a later gloss? even if it is retained, however, the passage points to a very material limitation of the lord's power. the holding in question can certainly not be described as being held 'at will.' to me the words in question look like a gloss or an addition, although very probably they were inserted early, perhaps by bracton himself, who found it difficult to maintain consistently a villain's contractual rights against the lord. another solution of the difficulty is suggested to me by sir frederick pollock. he thinks '_villanus manumissus vel alienus_' correct, and lays stress on the fact, that personal condition does not matter in this case: that even though the tenant be free or _quoad_ that lord as good as free, the assize lies not and there shall only be an action on the covenant. if we accept this explanation which saves the words under suspicion, we shall have to face another difficulty: the text would turn from _villanus (suus)_ to _villanus alienus_ and back to _villanus (suus)_ without any intimation that the subject under discussion had been altered. [ ] the later practice is well known. any agreement with a bondman led to a forfeiture of the lord's rights. it may be seen at a glance that such could not have been the original doctrine. otherwise why should the old books lay such stress on the mention of heirs? [ ] besides the case from the note-book which i discuss in the text, bracton, f. , is in point: 'item esto quod villanus teneat per liberum servitium sibi tantum, nulla facta mentione de heredibus, si cum ejectus fuerit proferat assisam, et cum objecta fuerit exceptio villenagii, replicet quod libere teneat et petat assisam, non valebit replicatio, ex quo nulla mentio facta est de heredibus, _quia liberum tenementum in hoc casu non mutat statum_, si fuerit sub potestate domini constitutus. ut in eodem itinere (in ultimo itinere martini de pateshull) in comitatu essex, assisa noue disseisine, si radulphus de goggenhal.' the villain fails in his assize and there has been no manumission, still it seems admitted that in this case the villain has acquired _liberum tenementum_ by the lord's act. how can this be except on the supposition that there is a covenant enforceable by the villain against the lord? [ ] bract. note-book, pl. : 'nota quod filius villani recuperat per assisam noue disseisine terram quam pater suus tenuit in villenagio quia dominus villani illam dedit filio suo per cartam suam eciam sine manumissione.' [ ] f.w. maitland tells me, that concanen's report of _rowe_ v. _brenton_ describes _bond conventioners_ in cornwall. [ ] bracton, f. : 'et in hoc legem habent contra dominos, quod stare possunt in judicio contra eos de vita et membris propter saevitiam dominorum, vel propter intollerabilem injuriam, ut si eos destruant, quod salvum non possit eis esse waynagium suum. [hoc autem verum est de illis servis, qui tenent de antiquo dominico coronae, sed de aliis secus est, quia quandocunque placuerit domino, auferre poterit a villano suo waynagium suum et omnia bona sua.] expedit enim reipublicae ne quis re sua male utatur.' [ ] see my article in the l.q.r., i. . [ ] bracton, f. - . [ ] coram rege, edw. i, m. : '... licet habeant alia averia per que distringi possent distringit eos per averia de carucis suis quod est contra statutum domini regis.' (record office.) [ ] spence, equitable jurisdiction, i. . [ ] the mirror of justices, p. , follows britton in this matter. this curious book is altogether very interesting on the subject of villeinage, but as its information is of a very peculiar stamp, i have not attempted to use it currently on the same level with other authorities. i prefer discussing it by itself in app. iii. [ ] bracton, f. b, . cf. bract. note-book, pl. : 'dicit quod tunc temporis scilicet in itinere iusticiariorum tenuit ipse quamdam terram in uillenagium quam emerat, et tunc cognouit quod terra illa fuit uillenagium, et precise defendit quod nunquam cognouit se esse uillanum.' [ ] britton, ii. ; y.b. / edw. i, p. : 'kar nent plus neit a dire, jeo tenk les tenements en vileynage de le deen etc. ke neit a dire ke jeo tenk les tenements ... a la volunte le deen etc.' [ ] bracton, f. . [ ] ibid., f. b. [ ] palgrave, rotuli curiae regis, ii. . [ ] placitorum abbrev. , ; note-book, pl. . (the father is called ailfricus in the plea roll divers terms john, d., at the record office.) [ ] bract. note-book, pl. . [ ] case : 'consideratum est quod terra illa est uilenagium ipsius hugonis (corr. johannis), et quod si martinus uoluerit terram tenere faciat consuetudines quas pater suus fecit, sin autem capiat terram suam in manum suam.' [ ] marginal remark in the note-book to pl. : 'nota quod liber homo potest facere uillanas consuetudines racione tenementi uillani set propter hoc non erit uillanus, quia potest relinquere tenementum.' comp. mr. maitland's note to the case. [ ] bracton, f. b: 'unde videtur per hoc, quod licet liber homo teneat villenagium per villanas consuetudines, contra voluntatem suam ejici non debet, dum tamen facere voluerit consuetudines quae pertinent ad villenagium, et quae praestantur ratione villenagii, et non ratione personae.' [ ] cf. blackstone's characteristic of copyholds: 'but it is the very condition of the tenure in question that the lands be holden only so long as the stipulated service is performed, quamdiu velint et possint facere debitum servitium et solvere debitas pensiones.' (law tracts, ii. .) [ ] bract, f. . [ ] bract. note-book, pl. : 'et ideo consideratum est quod willelmus conuictus est de uilenagio et si facere uoluerit predictas consuetudines teneat illam bouatam terre per easdem consuetudines, sin autem faciat bartholomeus de terra et de ipso willelmo uoluntatem suam ut de uillano suo et ei liberatur. cf. mr. maitland's note. [ ] i should like to draw attention to one more case which completes the picture from another side. bract. note-book, pl. : 'symon de t. petit versus adam de h. et thomam p. quod faciant ei consuetudines et recta seruicia que ei facere debent de tenemento quod de eo tenent in uillenagio in t. et ipsi ueniunt et cognoscunt quod uillani sunt. et symon concedit eis quod teneant tenementa sua faciendo inde seruicia quae pertinent ad uillenagium, ita tamen quod non dent plus in auxilium ad festum st. mich. nec per annum quam duodecim denarios scilicet quilibet ipsorum et hoc nomine tallagii.'--the writ of customs and services was out of place between lord and villain. the usual course was distraint. the case is clearly one of privileged villainage, but it is well to note that although the services are in one respect certain, the persons remain unfree. [ ] bracton, f. b. [ ] ibid., f. . [ ] bract. note-book, pl. : 'dicunt quod idem w. nullum habuit liberum tenementum quia ipse uillanus fuit et fecit omnimoda uilenagia quia non potuit filiam suam maritare nec bouem suum uendere. : r. de m. posuit se in magnam assisam dom. reg. in comitatu de consuetudinibus et seruiciis que th. b. petit uersus eum, unde idem th. exigebat ab eodem r. quod redderet ei de uillenagio per annum den. et aruram trium dierum et messuram trium dierum ... et gersumam pro filia sua maritanda et unam gallinam ad natale et tot oua ad pascha et tallagium et quod sit prepositus suus. set quia illa sunt servilia et ad uillenagium spectancia et non ad liberum tenementum, consideratum est quod magna assisa non iacet inter eos, set fiat inquisicio per xii,' etc. cf. , , , . [ ] bract. note-book, : 'et prior dicit quod in parte bene recordantur set in parte parum dicunt quia iuratores dixerunt quod debuit dare xii. den. pro filia sua maritanda, et debuit plures alias consuetudines et petierunt respectum ut assensum habere possent a domino roberto de lexintona utrum hoc esset liberum tenementum ex quo sciunt quid debuit facere et quid non et nullum respectum habere potuerunt.' [ ] example--bract. note-book, pl. . fitzherbert, abr. villen. ( ed. i): 'quia predictus j. nullam probacionem producit neque sectam et cognoscit quod ille est in seisina ... de patre predicti w. quem potuit produxisse ad probacionem, consideratum est quod predicti w. et r. liberi maneant.' [ ] bracton, f. . the jury came in only by consent of the parties. [ ] britton, i. ; fitzherbert, abr. villen. . [ ] court rolls of havering atte bower, essex, augment. off. rolls, xiv. . (curia--die jovis proxima ante festum st. bartholomaei apostoli anno r. r. ricardi ii, mo.) 'inquisicio ... dicit ... quod non est aliquis homo natiuus de sanguine ingressus feodum domini, set dicunt quod est quidam johannes shillyng qui sepius dictus fuerat natiuus. et dicunt ultra quod quidam johannes shillyng pater predicti johannis fuit alienigena et quod predictus johannes shillyng quod ad eorum cognitionem est liber et libere condicionis et non natiuus.' [ ] fitzherbert, abr. villen. (h. edw. ii). [ ] ibid. ( edw. i). [ ] fitzherbert, l. c.: 'e ce issu fuit trie par gents de paiis ou le maner est e nemi ou il nasquist par touts les justices.' [ ] rotuli parliam. ii. . hargrave's argument in the negro somerset's case is very good on all these points. howell, state trials, xx. , . [ ] bracton, ; britton, i. sq. [ ] bracton, f. , and on many other occasions. [ ] co. lit. , b. cf. king henry i's writ in favour of the monastery of abingdon. bigelow, placita anglo-normannica, : 'facias habere f. abbati omnes homines suos qui de terra sua exierunt propter herberiam curie mee.' henry ii puts it the other way, p. : 'nisi sunt in dominio meo.' [ ] a most curious pleading based on the conceptions of glanville occurs in a cor. rege case of henry iii, which was pointed out to me by f. maitland. see app. iv. mr. york powell suggests that the limitation may have originated in the fact, that in early times a man could no more give away a slave from his family estate without the consent of the family than he could give away the estate itself or part of it. there was no reason for such limitation in the case of a slave that had been bought with one's private money. hence the necessity of selling a slave in order to emancipate him. the conjecture seems a very probable one, but the question remains, how such ancient practice could have left a trace in the feudal period. the explanation in the text may possibly account for the tenacity of the notion. [ ] note-book, pl. , . [ ] bracton, f. , . bracton's text has been rendered almost unintelligible here by the careless punctuation of his editors, and sir travers twiss' translation is as wrong and misleading as usual. i will just give the passage in accordance with the reading of digby, (bodleian libr.), which is the best of all the mss. i have seen: 'quia esto quod seruus uelit manumitti et cum nichil habeat proprium eligat fidem alicuius qui eum emat quasi pro denariis suis, per talem emptionem non consequitur emptus aliquam libertatem nisi tantum quod mutat dominum. in re empta in primis solui debet pretium, postea sequitur traditio rei: soluitur hic pretium pro natiuo, set nulla subsequitur traditio, sed semper manet in uillenagio quo prius. si tenementum adquirat tenendum libere et heres manumissoris uel alius successor eum eiciat, si petat per assisam et heres opponat uillenagium, et villanus replicet de manumissione et emptione, heres triplicare poterit, quod imperfecta fuit emptio siue manumissio eo quod nunquam in uita uenditoris subsecuta fuit traditio, et ita talis semper remanebit sub potestate heredis.' [ ] note-book, pl. : 'iudicatum est quod liber sit quantum ad heredem manumittentis et non quantum ad alios, quod iudicium non est uerum.' [ ] bracton, ; cf. and . britton, ii. . [ ] bracton, : 'villenagium privilegiatum ... tenetur de rege a conquestu angliae.' cf. blackstone, law tracts, ii. . [ ] madox, history of the exchequer, i. : 'tallagium dominiorum et escaetarum et custodiarum.' [ ] bract. note-book, (the prior of st. swithin denies a manor to be ancient demesne): '... per cc annos ante conquestum anglie [terre] date fuerunt priori et conventui et ab aliis quam regibus.' [ ] y.b. trin. edw. iii, pl. (fitzherbert, abr. monstraver. ): '... touts les demesnes qui fuerent en la maine seint e. sont aunciens demesne, mesque ils fuerent aliens a estraunge mains quant le liver de domesday se fist, come il avient del manor de totenham qui fut en autre maine a temps de domesday fait, come en le dit livers fait mencion, que il fuit adonques al counte de cestre.' [ ] very curious pleadings occurred in . y.b. edw. ii, p. : '_ber(wick)_ ils dient en l'exchequer que serra (_corr._ terra) r. serra ecrit sur le margin en cas ou cest ancien demene en domesday, mes ceo fust escript sur le dyme foille apres sur un title terra r., mesine (_corr._ mes une _or_ mesqe?) r. fuit escript sur le margin de chescun foille apres, e tout ceo la est anciene demene a ceo quil nient (_corr._ dient), mes ascunes gens entendent que les terres qui furent les demenes le roy st. edward sont auncien demene, e autres dient fors les terres que le conquerour conquist, que furent en la seissin st. edward le jour quil mourust sont anciene demene.' although a difference of opinion is mentioned it is not material, for this reason, that the entry as _terra regis_, at least t.r.e., is absolutely required to prove a manor ancient demesne. i give the entry on the plea roll in app. v. [ ] i think only distress can be implied by the remark of bereford j. y.b. / edw. i, p. : 'quant vous vendrez a loustel, fetes de vostre archevileyn ceo qe vous vodrez.' the words are strange and possibly corrupt. [ ] blackstone, law tracts, ii. : 'they cannot alienate tenements otherwise than by surrender into the lord's hand.' bracton, . [ ] in a most curious description of the customs of villain sokemen of stoneleigh, warwick, in the register of stoneleigh abbey, i find the following entries: 'item sokemanni predicti filias suas non possunt maritare sine licencia domini prout patet anno viij regis e. filii regis e. per rotulum curie in quo continetur quod matildis de canle in plena curia fecit finem cum domino pro ij sol. quia maritauit filiam suam thome de horwelle sine licencia domini.... item anno regis h. lvj continetur in rotulo curie quod willelmus michel fuit in misericordia quia maritauit filiam suam sine licencia domini et similiter decenarii fuerunt in misericordia quia hoc concelauerunt.' as to the stoneleigh register, see app. vi. another instance of merchet in an ancient demesne manor is afforded by the ledecumbe (letcombe) regis court rolls of . chapter house, county bags, berks. no. , m. : 'johannes le jeune se redemit ad maritandum et fecit finem xij sol.... johannes atwel redemit filiam suam anno predicto' (record office). [ ] henry ii's charter to stoneleigh abbey: 'quieta de schiris et hundredis, et murdro et danegeldo, et placitis et querelis, et geldis et auxiliis, et omni consuetudine et exactione' (dugdale, monasticon, v. ). [ ] close roll, henry iii., m. , d: 'monstrauerunt domino regi homines de esindene et de beyford, quod occasione misericordiae c. librarum, in quam totus comitatus hertfordie incidit coram iusticiariis ultimo itinerantibus ... hidagium quoddam assedit vicecomes super eos ad auxilium faciendum ceteris de comitatu ad misericordiam illam acquietandam et inde eos distringit. quia vero predicti homines nec alii de dominicis domini regis sectam faciunt ad comitatum et ea racione non tenentur ad misericordiam ceterorum de comitatu illo acquietandam auxilium facere aut inde participes esse, mandatum est vicecomiti hertfordie quod homines predictos in hidagio et demanda pacem habere permittat' (record office). placita de quo warranto, , : 'non quieti de communi amerciamento nisi tantum in stonle.' [ ] viner, abr. v. anc. dem. c^ , ; cf. e, . madox, hist. of exch., i. , note _l_: 'quieti de auxilio vicecomitis et baillivorum suorum.' [ ] cor. rege, mich. e. ii, m. : '(juratores dicunt quod homines de wycle) in itinere respondent per quatuor et prepositum sicut cetere ville de corpore comitatus.' this against their claim to hold in ancient demesne. [ ] viner, abr. anc. dem. b. , , . [ ] madox, exch., i. , . [ ] stubbs, ii. , (libr. ed.); madox, exch., i. . [ ] cor. r. m. e. ii, m. : 'quando communitas comitatus talliatur ... predicti homines taxantur sicut ceteri villani ejusdem comitatus' (against the ancient demesne claim). [ ] fitzherbert, abr. monstauerunt, (h. e. iii): '... quant le roi taile les burghs a taunt come ils paia a taile pur tant il nous distreint.' _th._: 'entend qe les feoffes le roy auront taile?' quasi diceret non, 'car cest un regalte qui proprement attient al roy et a nul auter.' _clam._: 'tout aura il tail il serra leue en due maner sil auront breve hors del chauncerie al viconte, sc. quod habere facias racionable taile.' the men of king's ripton, hunts., who were constantly wrangling about their rights with the abbot of ramsey, the lord of the manor, maintained that they had never been tallaged nisi tantummodo ad opus regis, and their claim was corroborated by an inspection of the exchequer rolls (madox, exch., i. , n). before granting a writ of tallage to the abbot of stoneleigh in , henry iii had an inquisition made as to the precedents. it was found that 'nunquam predictum manerium de stonle talliatum fuit postquam johannes rex predictum manerium dedit predicti abbati et conventui' (stoneleigh reg., f. ). [ ] the law-books say so distinctly. britton, ii. : 'et pur ceo qe teus sokemans sount nos gaynours de nos terres, ne voloms mie qe teles gentz seint a nule part somouns de travailer en jurez ne en enquestes, for qe en maners a queus il appendent.' cf. fleta, p. . [ ] natura brevium, f. b (ed. pynson). [ ] y.b. h. e. iii, pl. (fitzherbert, abr. aunc. dem. , quotes pl. instead of by mistake): _belk(nap)_, 'verite est qe le terre est demandable par le briefe de droit patent en le court le seigniour apres la confirmacion (_sc._ par chartre) par ce qe le brief de droit serra commence en le court le seignior, mes apres la confirmacion il ne serra demande en auncien demesne par brief de droit close secundum consuetudinem,' etc. [ ] bracton actually calls the plea of ancient demesne an exception of villainage, f. : 'si autem in sokagio villano, sicut de dominico domini regis, licet servitia certa sunt, obstabit ei exceptio villenagii, quia talis sokmannus liberum tenementum non habet quia tenet nomine alieno.' cf. fitzherbert, abr. aunc. dem. . [ ] bract. note-book, pl. : 'non debent extra manerium illud placitare quia non possunt [ponere] se in magnam assisam nec defendunt se per duellum.' on the cases when an assize could be taken as to tenements in ancient demesne, see the opinion printed in horwood's introduction to y.b. / edw. i, p. xviii. [ ] stoneleigh reg., f. sqq: 'item in placito terre possunt partes si voluerint ponere jus terre sue in duello campionum vel per magnam assisam, prout patet in recordo rotuli de anno xlv regis henrici inter walterum h. et johannem del hul etc. et inter galfridum crulefeld et willelmum elisaundre anno xx regis edwardi filii regis henrici,' etc. [ ] bract. note-book, : 'nota quod si manerium quod solet esse de dominico domini regis datum fuerit alicui et postea semel capta fuerit assisa noue uel mortis de consuetudine, iterum capiantur assise propter consuetudinem.' [ ] britton, ii, . [ ] if the lord brings an action against the tenant, ancient demesne is no plea, viner, abr., anc. dem. g. . this was not quite clear however, because ancient demesne is a good plea whenever recovery in the action would make the land frank fee. [ ] y.b., m. edw. iii, : '_chold_: si le seigniour disseisie son tenaunt il est en eleccion del tenant de user accion en le court le seigniour ou en le court le roy' (fitzherbert, abr. aunc. dem. ). liber assis. edw. iii, pl. , f. : '_wichingham_: si le tenant en auncien demesne fuit disseisi par le seignior en auncien demesne il est a volunte le tenant de porter lassise al comen ley ou en auncien demesne mes e contra si le seignior soit disseisi par le tenant, il ne puit aillours aver son recoverie que en le court le roy.' [ ] stoneleigh register: 'item anno regni regis eduardi filii regis henrici vij ricardus peyto tulit breue de recto versus abbatem de stonle et alios de tenementis in fynham in curia de stonle.' there are several instances in the court rolls of king's ripton, hunts. see app. v. [ ] bract. note-book, : 'preceptum est vicecomiti quod preciperet ballivis manerii dom. regis de haueringes quod recordari facerent in curia dom. regis de h. loquelam que fuit in eadem curia per breue dom. regis inter,' etc.: is to the same point. i must say, however, that i do not agree with mr. maitland's explanation, vol. ii. p. , n. : 'john fitz geoffrey (the defendant pleading ancient demesne) cannot answer without the king. tenet nomine alieno. bract. f. . the privileges of tenants in ancient demesne are the king's privileges.' john fitz geoffrey is the king's _firmarius_, and the other defendants vouch him to warranty. after having pleaded to the jurisdiction of the court he puts in a second plea, 'salvo predicto responso,' namely, that the tenement claimed is encumbered by other and greater services than paying _s._ to hold freely. this is clearly the farmer's point of view, and as such, he cannot answer without the king. i lay stress on the point because a person pleading ancient demesne, although not holding _nomine proprio_ in strict law, is compelled to answer without the king in the manorial court and by the manorial writ. [ ] i need not say that the 'little writ' did not lie against the king himself. no writs did. cp. fleta, p. . [ ] y.b., / edw. iii, (rolls ser.). [ ] i shall have to speak of the constitution and usages of the court in another chapter. [ ] actions on statutes could not be pleaded in ancient demesne because, it was explained, the tenantry not being represented in parliament, were no parties in framing the statute; viner, abr. anc. dem. e. . another explanation is given in y.b., h. edw. ii, p. . [ ] as a matter of course, any question as to whether a manor was ancient demesne, and whether a particular tenement was within the jurisdiction of it, could be decided only in the high courts. [ ] viner, abr., i. . [ ] y.b., h. edw. iii, : '_caunt_: si le jugement soit une foitz revers, la court auncien demesne ad perdu conusance de ce ple a touts jours.' [ ] stoneleigh reg.: 'item si contingat quod error sit in iudiciis eorum et pars ex eorum errore gravetur contra consuetudines, pars gravata habebit breve regis, ad faciendum venire recordum et processum inter partes factos coram justiciariis domini regis de banco; qui justiciarii inspecto recordo et processu quod erratum est in processu iusto iudicio emendabunt et ipsos sokemannos propter errorem et falsum iudicium secundum quantitatem delicti ad multam condempnabunt.' [ ] bract. note-book, : 'et illi de curia qui veniunt quesiti, si unquam tale factum fuit judicium in prefata curia, et quod ostendant exemplum, et nichil inde ostendere possunt, nec exemplum nec aliud.' [ ] y.b., / edw. iii, p. (rolls ser.): '_stonore_: dit qe toutz les excepcions poent estre salve par usage del manoir forspris un, cest a dire qe la ou il egarde seisine de terre par defalte apres defalte la ou le tenant avait attourne en court qe respoundi pur lui.' cf. y.b., h. edw. iii, , and t. edw. iii, . [ ] bract. note-book, pl. and concern the royal manors of havering and kingston. [ ] i say against all men, because in the case of a stranger's interfering with the privileged villain's rights, it was for him to prove any exemption, e.g. conveyance by charter, which would take the matter out of the range of the manorial court. [ ] britton, ii. : 'et pur ceo qe nous voloms qe ils eyent tele quiete, est ordeyne le bref de droit clos pledable par baillif del maner de tort fet del un sokeman al autre, qe il tiegne les plaintifs a droit selom les usages del maner par simples enquestes.' [ ] natura brevium, f. b (ed. pynson). [ ] stoneleigh reg.: 'si dominus a sokemanis tenentibus suis exigat alias consuetudines quam facere consueuerunt quum manerium fuit in manibus progenitorum regis eos super hoc fatigando et distringendo, prefati tenentes habent recuperare versus dominum et balliuos suos per breve regis quod vocatur monstraverunt nobis homines de soka de stonle,' etc. [ ] viner, abr. anc. dem. c^ , . [ ] fitzherbert, abr. monstraverunt, (p. , edw. iii): '_seton_: cest un cas a par luy en cest breue de monstrauerunt qe un purra sue pur luy e tous les autres del ville tout ne soient pas nosmes en le breve e par la suite de un tous les autres auront auantage et cesty qe vient purra estre resceu e respondra par attourne pur touts les auters coment qe unque ne resceu lour attournement; issint qe cest suit ne breue nest semblable a auter.' [ ] as it was the peasants had the greatest difficulty in conducting these cases. in some norfolk men tried to get justice against roger bigod, the celebrated defender of english liberties. they say that they have been pleading against him for twenty years, and give very definite references. the jury summoned declares in their favour. the earl opposes them by the astonishing answer that they are not his tenants at all. it all ends by the collapse of the plaintiffs for no apparent reason; they do not come into court ultimately, and the jurors plead guilty of having given a false verdict; see app. vii. in the case of the men of wycle against mauger le vavasseur, to which i have referred several times, the trial dragged on for five years; the court adjourned the case over and over again; the defendant did not pay the slightest attention to prohibitions, but went on ill-treating the tenantry. at last he carried off a verdict in his favour; but the management of the trial certainly casts much suspicion on it. cf. placitorum abbreviatio, . [ ] madox, history of the exch., i. , c, d; , e; , f. [ ] bract. note-book, pl. : 'homines prioris s^{ti} swithini ... questi fuerunt dom. regi.' [ ] madox, exch., i. , u; the 'monstraverunt' of the men of king's ripton quoted above on the question of tallage. this matter of tallage could certainly be treated as an alteration of services, and sent for trial to the common bench. [ ] exch. memoranda, q.r. / henry iii, m. . the position of the castle of bamborough was certainly a peculiar one at the time. cf. close roll, henry iii, m. , d. [ ] exch. memoranda, q.r. trin. edw. i, m. , d. i give the documents in full in app. viii. the petitioners are not villains, but they are tenants of base tenure. they evidently belong to the class of villain socmen outside the ancient demesne, of which more hereafter. [ ] placitorum abbrev. : 'consideratum est quod constabularius de windesore de quo homines de bray questi fuerunt quod ipse vexabat eos de serviciis et consuetudinibus indebitis et tallagia insueta ab eis exigebat accipiat ab eis tallagia consueta et ipsi homines alia servicia et consuetudines quas facere solent faciant.' (pasch. et trin., john.) [ ] madox, exch. i. , u: 'homines de branton reddunt compotum de x libris, ut robertus de sachoill eis non distringat ad faciendum ei alias consuetudines quam regi facere consueverunt dum fuerunt in manu sua.' (pipe roll jo., , b, devenesc). [ ] dugdale, monasticon. v. ; stonleigh reg. f. b. cf. court rolls of ledecumbe regis (chapter house, county bags, berks, a. ): 'anno domini mcclxviii, solverunt homines de ledecumbe regis c. sol. ad scaccarium domini regis, pro redditu domini regis et predicti homines habent residuum in custodia sua excepta porcione prioris montis acuti de tempore suo et porcione prioris de bermundseye de tempore suo.' the manor had been let in fee farm to the monks of cluny, who demised it to the prior of montacute, who in his turn let it to the prior of bermondsey. [ ] stoneleigh reg. f. a: 'totam sokam de stonleya et omnes redditus et consuetudines et rectitudines quas henricus rex pater noster ibi habuit salua regali justicia nostra. uigore quarum chartarum prefatus abbas et conventus habent et possident totam sokam de stonle que quondam pertinuit ad le bury (_sic_) in dicta soka existens edificatum, ubi quidam comes quondam de licencia regis moram traxit. qui locus nunc edificiis carens vocatur le burystede iuxta crulefeld prout fossatis includitur, et est locus nemorosus.' [ ] stoneleigh reg. f. a: 'isti duo tenent (burgagia in warrwick) per seruicium sustinendi unum plumbum in manerio de stonle competens monasterio regis.' [ ] placita de quo warranto, : 'item clamat quod ballivus dom. regis in manerio de stonleye nullam faciet districtionem seu attachiamenta sine presencia ballivi abbatis.' [ ] see app. vi. [ ] stoneleigh reg. a: 'w.w. tenet unum burgagium per seruicium inveniendi domino regi seniori domino de stonle quartam partem unius tripodis.' [ ] king's ripton court rolls, augment. off. rolls, xxiii. , m. : 'dicta matildis optulit se versus margaretam greylaund de placito dotis, que non venit. ideo preceptum est capere in manum domini regis medietatem mesuagii etc.--pro defectu ipsius margarete. eadem matildis optulit se uersus willelmum vicarium--qui non uenit. ideo preceptum est capere in manum domini regis medietatem quinque acrarum terre etc. (curia de riptone regis die lune in festo sanctorum protessi et marciniani anno [r. r. e. xxiv. et j. abb. x]); m. , d.--qui venit et quantum ad aliam acram dicit, quod non est tenens set quod abbas seysiuit illam in manum suam. (curia--in festo assumpcionis--anno supra dicto).' in the first case the seizure corresponds to the 'cape in manum' of a freehold. as there could be no such thing in the case of villainage, and the procedural seizure was resumption by the lord, the point is worth notice and may be explained by the king's private right still lingering about the manor. the last case is one of escheat or forfeiture. [ ] stoneleigh reg. v: 'item si aliquis deforciatur de tenemento suo et tulerit breve regis clausum balliuis manerii versus deforciantes, dictum breve non debet frangi nisi in curia.' [ ] natura brevium, : 'balliuis suis.' [ ] britton, i. : 'rois aussi ne porrount rien aliener les dreits de lour coroune ne de lour reaute, qe ne soit repellable par lour successours.' [ ] stoneleigh reg. : 'nos attendentes, quod huiusmodi alienaciones et consuetudinum mutaciones eciam in nostri et heredum nostrorum preiudicium et exheredacionem cedere possent, si manerium illud in manus nostras aliquo casu deuenerit sustinere nolumus sicut nec debemus manerium illud aut ea que ad illud pertinent aliter immutari quam esse solebant temporibus predictis.' [ ] the writs are directed sometimes to the bailiffs of the archbishop of canterbury and of the duke of albemarle, who had the manor in custody for king richard ii, but in the twenty-third year they are inscribed to the king's bailiffs. (augmentation court rolls, xiv. ). as to the trial mentioned in the text see app. ix. [ ] stoneleigh reg. a: 'precipio tibi quod sine dilacione deliberes abbati de stonleia omnes terras et tenuras quas ego dedi et carta mea confirmaui. et de terra quam rustici uersus calumpniantur et quam ego ei dedi et concessi, inquire si rectum in ea habuerunt et si rectum in ea habent, dona eis rusticis alibi in terra mea excambium ad valenciam.' [ ] bracton, f. : 'ad quemcumque manerium peruenerit.' [ ] madox, firma burgi, ; pipe rolls, passim. cf. rot. cur. regis ric., p. : 'homines de kingestone--c. sol. ... pro respectu tenendi villam suam ad eandem firmam quam reddere solebant tempore henrici regis.' [ ] madox, exch. , z: 'homines de lechton x marcas pro habenda inquisicione per proxima halimota et per legales milites et alios homines de visneto, quas consuetudines ipsi fecerunt tempore henrici regis patris.' (pipe roll. john.) cf. , a: 'homines de stanleya reddunt compotum de uno palefrido, ut inquiratur per sacramentum legalium hominum, quas consuetudines et quae servitia homines de manerio de stanleia facere consueverunt regi henrico patri ricardi regis dum essent in manu sua.' (pipe roll, john.) [ ] y.b., trin., e. iii, pl. (fitzherbert, abr. monstrav. ): '_han._ mist auant record de domesday qui parla _ut supra_:--_terra sancti stephani_ en le title qui parla de ceo maner que il fuit en sa maine. et auxi il mist auant chartre le roy que ore est, par quel le roy reherse quil ave viewe la chartre le roy henri le primer, et reherce tout le chartre, et ceo chartre voilet que henri aue viewe par ceo parolle _inspeximus_ la chartre le roy william conquerour qui aue done graunte e confirme mesme le manor a un henri butle, a luy, et a ces heirs a ceo iour, quel chartre issint volent _inspeximus cartam domini edwardi regis anglie_ issint par le recorde et par les chartres est expressement reherce par le roy qui ore est, que william conquerour fuit en possession de ceo maner, seinct edward auxint, en quel cas ceo serra aiudge auncient demesne tantamont come si la terre ust estre en la main seint edward par expresse parolx en le domesday. _belknap_: le comen fesance de chartres est de faire parolle en le chartre _dedimus concessimus et confirmauimus_ et uncore le chartre est bon assets al part, mesque le roy nauer riens a ceo temps, issint que riens passe par ceo paroll _dedimus_ mes il auer par parole de confermement, issint que il nest my proue par ce chartre que ils auoient la possession, pur ceo que les chartres poient estre effectuels a auter entent, scilicet, en nature de confermement, et auxi ces chartres fait par seint e. et w. conquerour ne sont my monstres a ore pur record, issint que mesque il furent monstre, et auxi purroit estre proue que le maner fuit en lour possession, nous ne puissomus pas aiudger la terre auncien demesne, pur ceo que auncien demesne sera aiudge par le liuer de domesday qui est de record, et nemy en autre maner. et puis les plaintifs fuerent nonsues.' [ ] fitzherbert, abr. cause de remover ple, (y.b., m., edw. iii): '_wilby_: il conuient que il count en le _monstrauerunt_ que il luy distreint pur auters customes que ses auncestres ne fecerunt en temps w. conquerour, cas le _monstrauerunt_ ne gist pas forsque en cas ou plusiours services sont demandez que ces auncestres ne solent faire en cel temps.' [ ] coram rege, tr. edw. i, m. , d: 'et unde predicti homines (de kyngesripton) queruntur quod temporibus cnout regis quo manerium illud fuit in manu dicti antecessoris sui tenuerunt tenementa sua per seruicia subscripta, videlicet reddendi pro qualibet virgata terre solidos, etc. et omnes antecessores sui tenuissent tenementa sua per predicta seruicia usque ad conquestum anglie, et a conquestu usque ad tempus regis henrici aui regis johannis aui domini regis nunc, usque ad tempus cuiusdam abbatis de rameseye roberti dogge nomine qui tempore henrici regis distrinxit antecessores suos ad dandum relevium pro voluntate sua, etc. et abbas dicit quod non debet eis ad hoc breue respondere, quia desicut in narracione sua non faciunt mencionem quod ipsi extitissent in tali statu in quo fuerunt tempore regis knout, quem statum ipsi clamant habere, tempore aliorum regum de quo memoria haberi possit nec de quo breue de recto currit nec aliqua verificacio per patriam fieri possit.... et reginaldus et alii bene cognoscunt quod ipse abbas et predecessores sui exstiterunt in seysina percipiendi ab ipsis et antecessoribus suis predicta seruicia indebita a tempore predicti henrici regis. set desicut istud breue quod conceditur in fauorem dominicorum domini regis non habet prescriptionem temporis, petunt judicium si [racione?] alicujus longiqui termini debeant ab actione excludi sua.' [ ] y.b., m., edw. ii, p. : '_bereford_: coment puit cest brief vous servir la ou il (the defendant) dist qe luy et ces predecessors ont este de vous et de vos auncestres (seisi) de tout temps come, etc., et vos ont taille, etc. devoms nous enguerre (enquerre _corr._) si vos feistes touz services en temps le roy s^t. edward, ou non de temps que vos avez pris title? _devon_: sir navyl (nanyl _corr._), mais nous disons qe touz les tenants qui tindrent en temps s^t. edward tinderent, etc. (par certains services) ... tanqe a ore xv ans devant le brief purchace etc. e ceo puit home enquere.' [ ] y.b., / edw. i, et sqq. [ ] coram rege, pasch. edw. ii, m. : 'postquam idem manerium ad manus antecessorum predicti maugeri deuenit usque ad tempus memorie, videlicet temporibus regum ricardi, johannis et statum illum toto tempore predicto pacifice continuaverunt et habuerunt.' coram rege, m. edw. ii, m. : 'unde queruntur quod cum ipsi homines et eorum antecessores tempore regum anglie progenitorum domini regis nunc, videlicet tempore regis willelmi conquestoris et willelmi regis filii sui et eciam tempore regis henrici primi solebant tenere terras suas per quaedam certa seruicia videlicet,' etc. [ ] i will here cite bract. note-book, pl. , as an instance, although there is hardly any call for quotation on this point. [ ] law of copyhold, . cf. the same author's tenures in kent, . [ ] blackstone, law tracts, ii., especially pp. , . [ ] bracton: 'liberi de condicione ... tenentes villenagium.' britton: 'hommes de franc saunc.' [ ] stoneleigh reg., : 'item si quis de voluntate et assensu domini facto fine cum domino voluerit dare tenementum suum ad opus alicuius, ueniet in curia cum virga et sursum reddet huiusmodi tenementum ad manum domini sine carta ad opus ementis vel cui datur et ballivus domini habitis prius herietis et aliis de iure domino debitis dictum tenementum emptori seu cui dabitur et heredibus suis secundum consuetudinem manerii habendum et tenendum liberabit in (cum _corr._?) virga. et dictus recipiens tunc faciet finem cum domino prout possunt conuenire.... item extraneus non debet vocari ad warantum in placito terre in curia de stonle quia sokemanni non possunt feoffare alios per cartas cum ipsi nullas habeant de rege. set si quos feoffauerint de licencia domini sine carta, ipsos feoffant secundum consuetudinem manerii prout continetur in rotulo curie de anno xx regis edwardi filii regis edwardi in placito terre inter,' etc. [ ] placitorum abbrev. , berks. cf. britton, i. , note c. [ ] bracton, f. . [ ] jurate et assise, henry iii, placitorum abbr., p. : 'et galfridus de praule bene cognoscit quod predictum manerium est antiquum dominicum dom. regis set dicit quod predictum tenementum est liberum tenementum ita quod assisa debet inde fieri.... dicit enim quod ipse feofatus est de predicto tenemento de quodam willelmo harold per cartam suam quam profert.... et juratores quesiti si antecessores ejusdem willelmi feofati fuerunt per cartam vel si aliquis de tenura illa unquam placitaverunt per diversa brevia vel non, dicunt quod non recolunt.' [ ] stoneleigh reg., : 'fuerunt eciam tunc quatuor natiui siue serui in le lone quorum quilibet nouum mesuagium et unum quartronum terre cum pertinenciis per seruicia subscripta videlicet leuando furcas, etc. ... et debebant ... redimere sanguinem suum et dare auxilium domino ad festum s^{ti}. michaelis scilicet ayde et facere braseum domini et alia seruicia seruilia.' as to some details, see dugdale, antiquities of warwickshire, i. . [ ] coram rege, pasch. edw. ii, m. : '(maugerus) defendit vim et injuriam quando, etc. et dicit quod qualitercunque iidem homines asserant se et antecessores suos tenentes, etc. certa seruicia dominis de wycle antecessoribus ipsius maugeri et sibi fecisse et facere debere, quod omnes antecessores sui domini de eodem manerio extiterunt seisiti de predictis hominibus et eorum antecessoribus tenentibus tenementa quae ipsi modo tenent ibidem ut de uillanis suis taillabilibus alto et basso ad voluntatem ipsorum dominorum et redempcionem sanguinis et alia villana seruicia et incerta et villanas consuetudines faciendo a tempore quo non extat memoria.... et predicti homines dicunt quod ipsi sunt tenentes de antiquo dominico, etc., prout curie satis liquet et quod omnes tenentes in dominico regis per certa seruicia et certas consuetudines tenent et tenere debent, quidam per maiora et quidam per minora secundum consuetudinem, set semper per certa,' etc. coram rege, mich. edw. ii, m. , v: 'nec dedici potest quia tenentes de antiquo dominico certa seruicia et certas consuetudines tenentur facere et non ad voluntatem dominorum.' [ ] y.b., m., edw. ii, p. : '_bouser_: auxint bien sont tenans en auncien demesne ascuns vileins et ascuns autres come ailleurs et les sokemans plederent par le petit brief de droit et les vileyns nient. _herle_: il semble que assets est il traverse de votre brief, car vous dites que vous tenez par certeyn service ... et il dit que vous estes son vilein et que il et ses predecessors ont este seisiz de tailler vous et vos auncestres haut et bas, etc. et stetit verificare.' cf. bract. note-book, pl. . [ ] bracton, : 'item est manerium domini regis et dominicum in manerio, et sic plura genera hominum in manerio, vel quia ab initio vel quia mutato villenagio.' the meaning of this badly worded passage is made clearer by a comparison with f. : 'in dominico domini regis plura sunt genera hominum; sunt enim ibi servi sive nativi ante conquestum, in conquestu, et post, et tenent villenagia et per villana servitia et incerta qui usque in hodiernum diem villanas faciunt consuetudines et incertas et quicquid eis preceptum fuerit (dum tamen licitum et honestum).... est etiam aliud genus hominum in maneriis domini regis, et tenent de dominico et per easdem consuetudines et servitia villana, per quae supradicti (villani socmanni) et non in villenagio, nec sunt servi nec fuerunt in conquestu, ut primi, sed per quandam conventionem quam cum dominis fecerunt.' cf. elton, tenures of kent, . [ ] fitzherbert, abr. monstrav. (pasch. edw. iii). '_kirt_: les tenements queux ils teignent fuerent en auncien temps entre les maines les villeins queux deuirrent sans heire perque les tenements fuerent seisies en maine le seigneur et puis le senescal le seigneur lessa mesme ceux terres par rolle a mesme ceux ore tenants a tener a volunte del seigneur fesaunt certain services; issint ne sont ils forsque tenants a volunte le seigneur.' [ ] natura brevium, f. . cf. . [ ] y.b., / edw. i, p. : 'treis maners de gents.' [ ] bracton, f. : fitzherbert, monstrav. (pasch. edw. iii): '_belknap_: mesmes les tenementz en auncien temps fuerent en mains le petit sokmans, et eux fierent teux services comme gents de petits sokemans fierent en auncien temps et eux les teignent comme gents de petit sokmans.' [ ] stoneleigh reg., : 'et quod in eodem manerio sunt diuerse tenure secundum consuetudinem manerii illius totis temporibus retroactis usitatam, videlicet quidam tenentes eiusdem manerii tenent terras et tenementa sua in sokemanria de feodo et hereditate de qua quidem tenura talis habetur et omni tempore habebatur consuetudo, videlicet quod quando aliquis tenens eiusdem tenure terram suam alicui alienare uoluerit, veniet in curiam coram ipso abbate vel eius senescallo et per uirgam sursum reddat in manum domini terram sic alienandam.... et si aliquis terram aliquam huiusmodi tenure infra manerium predictum per cartam uel sine carta absque licentia dicti abbatis alienauerit aliter quam per sursum reddicionem in curia in forma predicta, quod terra sic extra curiam alienata domino dicti manerii erit forisfacta in perpetuum. dicunt eciam quod quidam sunt tenentes eiusdem manerii ad voluntatem eiusdem abbatis. et si quis eorundem tenencium terram sic ad voluntatem tentam alienauerit in feodo, quod liceat dicto abbati terram illam intrare et illam tanquam sibi forisfactam sibi in perpetuum retinere.' [ ] a comparison of the data in the stoneleigh register and in the roll is given in app. vi. cf. bract. note-book, pl. : 'legales homines de manerio de havering.' [ ] coram rege, mich. edw. i, m. : '(juratores) quesiti si predicti margeria et alii et omnes antecessores a tempore quo non extat memoria terras suas successiue de heredibus in heredes tenuerint uel ipsi aut aliquis antecessorum suorum sunt vel fuerint aduenticii, dicunt quod ignorant.' [ ] court rolls of king's ripton, augment. off. xxiii. , m. : 'memorandum quod concessum est rogero de kenlowe habendum introitum ad caterinam filiam thome prepositi cum uno quarterio terre in villa de ryptone regis pro duabus solidis in gersuma, ita tamen quod mortua dicta katerina ille qui propinquior est heres de sanguine predicte katerine gersumabit dictum quarterium terre secundum consuetudinem manerii et ville.' a. r. r. edw. xxiii, m. , v: 'nicholaus de aula reddit sursum unam dimidiam acram terre ad opus willelmi ad portam de broucton.... et preceptum preposito respondere de exitibus eiusdem terre quia est extraneus.... johannes arnold reddit sursum duas rodas terre ad opus hugonis palmeri.... et preceptum est quod ponatur in seysinam, quia est de sanguine de riptone regis.' [ ] court rolls of king's ripton, augment. off. xxiii. , m. : 'curia de kingsripton tenta die jovis proxima post translacionem s^{ti}. benedicti anno r. r. e. xxix^n et dom. joh. [abb. xv. venit] willelmus fil. thome unfroy de kingesripton et reddidit sursum in manibus senescalli totum jus quod [habuit] in illis tribus acris terre in campis de kingesriptone quondam willelmi capellani de eadem [villa ad opus filiorum] rogeri de kellawe _extranei_ legitime procreatorum de katerina filia thome prepositi que est de con[dicione sokemannorum?] _bondorum_ de kingesripton.... rogerus de kellawe extraneus qui se maritauit cuidam katerine filie thome prepositi de kingesripton que est de nacione et condicione eiusdem ville venit et petiit in curia nomine filiorum suorum ex legitimo matrimonio exeuntium de corpore prefate katerine illas vi acras terre.... (juratores dicunt) quod nichil inde sciunt nec aliquid super isto articulo presentare volunt ad presens. et sic infecto negocio maximo contemptu domini et balliuorum suorum extra curiam recesserunt. et ideo preceptum est balliuis quod die in ... faciant de eisdem juratis xl solidos ad opus domini.' [ ] stoneleigh reg., (edward ii injunction): 'et quidam forinseci qui sokemanni non sunt auctoritate sua propria et per negligenciam dicti abbatis et conuentus, ut dicitur, a quibusdam sokemannorum illorum quasdam terras et tenementa alienaverunt. nos igitur super premissis plenius certiorari uolentes assignavimus vos una cum his, quos vobis associaveritis, ad inquirendum qui sokemanni huiusmodi terras et tenementa ibidem alienauerunt huiusmodi forinsecis aut extrinsecis et quibus,' etc. cf. the statute of richard ii, stat. . cap. . it was altogether a dangerous transaction for the socmen, because they were risking their privileges thereby. it must have been lucrative. [ ] placitorum abbrev., p. (coram rege, mich. / edw. i): 'et eciam comperto in libro de domesday quod non fit aliqua mencio de sokemannis set tantummodo de villanis et servis et eciam comperto per inquisicionem quod multi eorum sunt adventicii quibus tenementa sua tradita fuerunt ad voluntatem dominorum suorum ... consideraverunt quod predictus galfridus eat inde sine die et quod predicti homines teneant tenementa predicta in predicto manerio per servilia servicia si voluerint, salvo statu corporum suorum, et quod de cetero non possunt clamare aliquod certum statum et sint in misericordia pro falso clameo.' [ ] bract. note-book, pl. . [ ] bracton, f. . [ ] dialogus de scaccario, i. : 'post regni conquisitionem, post justam rebellium subversionem, cum rex ipse regisque proceres loca nova perlustrarent, facta est inquisitio diligens, qui fuerint qui contra regem in bello dimicantes per fugam se salvaverint. his omnibus et item haeredibus eorum qui in bello occubuerunt, spes omnis terrarum et fundorum atque redituum, quos ante possederant, praeclusa est; magnum namque reputabant frui vitae beneficio sub inimicis. verum qui vocati ad bellum nec dum convenerant, vel familiaribus vel quibuslibet necessariis occupati negotiis non interfuerant, cum tractu temporis devotis obsequiis gratiam dominorum possedissent, sine spe successionis, sibi tantum pro voluptate (voluntate?) tamen dominorum possidere coeperunt. succedente vero tempore cum dominis suis odiosi passim a possessionibus pellerentur, nec esset qui ablata restitueret, communis indigenarum ad regem pervenit querimonia, quasi sic omnibus exosi et rebus spoliati ad alienigenas transire cogerentur. communicato tandem super his consilio, decretum est, ut quod a dominis suis exigentibus meritis interveniente pactione legitima poterant obtinere, illis inviolabili jure concederentur; ceterum autem nomine successionis a temporibus subactae gentis nihil sibi vendicarent.' [ ] stoneleigh reg., a: 'que quidem maneria existencia in possessione et manu domini regis edwardi per universum regnum vocantur antiquum dominicum corone regis anglie prout in libro de domesday continetur.' [ ] 'loquebantur de tempore s^{ti} edwardi regis coram w. de wilton.' [ ] the men of king's ripton. [ ] i do not think there is any ground for the suggestion thrown out by m. kovalevsky in the law quarterly, iv. p. , namely, that the law of ancient demesne was imported from normandy. whatever the position of the villains was in the duchy, norman influence in england made for subjection, because it was the influence of conquest. it must be remembered that in a sense the feudal law of england was the hardest of all in western europe, and this on account of the invasion. [ ] stubbs, const. hist. i. : 'in those estates, which, when they had been held by the crown since the reign of edward the confessor, bore the title of manors in ancient demesne, very much of the ancient popular process had been preserved without any change, and to the present day some customs are maintained in them which recall the most primitive institutions.' i shall have to speak about the mode of holding the courts in another chapter. [ ] brunner, entstehung der schwurgerichte, has made an epoch in the discussion of this phenomenon. [ ] i shall treat at length of the norman conquest in my third essay. [ ] leg. will. conq. i. (schmid, p. ). [ ] thorold rogers has made great use of this last class of manorial documents in his well-known books. [ ] bracton, b. [ ] bracton, . [ ] cartulary of malmesbury (rolls series), ii. : 'videlicet quod prefatus ricardus concessit praedictis abbati et conventui et eorum tenentibus, tam rusticis, quam liberis--quod ipsi terras suas libere pro voluntate sua excolant.' [ ] as to the warwickshire hundred roll in the record office, see my letter in the athenæum, , december . [ ] rot. hundred. ii. , a: '_libere tenentes_ prioris de swaveseia.... henricus palmer-- mesuagium et rodas terre reddens d. et precarias. _servi_ adam scot tenet acras reddens s. et precarias.... _cotarii_....' [ ] rot. hundred. ii. , a: 'in _servitute_ tenentes. assunt et ibidem tenentes qui tenent virgatas terre in _villenagio_ et operantur ad voluntatem domini et reddunt per annum s.' [ ] rot. hundred. ii. , : 'villani--servi--custumarii. et tenent ut villani, ut servi, ut libere tenentes.' rot. hundred. ii. , b: 'de custumariis johannes samar tenet mesuagium et croft ... per servicium sol. d. et secabit acras et dim., falcabit per diem. de servis. nicholaus dilkes tenet acras--et faciet per annum opera et metet acras. de aliis servis ... de cotariis ... de aliis cotariis.' [ ] rot. hundred. ii. , a: 'henr. de walpol habet latinos (_corr. nativos_), qui tenent acras terre et redd. libr. et sol. et d. et ob. nomina eorum qui tenent de henrico de walpol in _villenagio_.' chapter house, county boxes, salop. , c: 'libere tenentes ... coterelli ... nativi.' [ ] hale, in his introduction to the domesday of st. paul's, xxiv, speaks of the 'nativi a principio' of navestock, and distinguishes them from the villains. 'the ordinary praedial services due from the tenentes or villani were not required to be performed in person, and whether in the manor or out of it the villanus was not in legal language "sub potestate domini." not so the nativus.' hale's explanation is not correct, but the twofold division is noticed by him. [ ] domesday of st. paul's, (articuli visitationis): 'an villani sive custumarii vendant terras. item, an _nativi custumarii_ maritaverunt filias--vel vendiderint vitulum--vel arbores--succidant.' a suffolk case is even more clear. registrum cellararii of bury st. edmunds, cambridge university gg. iv. , f. , b: 'gersumarius vel custumarius qui _nativus_ est.... antecessor recognovit se nativum domini abbatis in curia domini regis.' [ ] cartulary of eynsham in oxfordshire, ms. of the chapter of christ church in oxford, n. , p. , a: 'in primis willelmus le brewester _nativus domini_ tenet de dictis prato et terris...' [ ] eynsham cartulary, . b: 'johannes kolyns nativus domini tenet virgatam terre cum pertinenciis in bondagio.' [ ] cartulary of st. mary of worcester (camden series), . a: 'nativi, cum ad aetatem pervenerint nisi immediate serviant patri--faciant benripas et forinsici similiter.' survey of okeburn, q.r. anc. miscell. alien priories, / : 'aliquis nativus non potest recedere sine licencia neque catalla amovere nec extraneus libertatem dominorum ad commorandum ingrediat sine licentia.' [ ] domesday of st. paul's, : 'nativi a principio. isti tenent terras operarias.' [ ] queen's remembrancer's miscellanies, - : 'rotuli de libertate de tynemouth, de liberis hominibus, non de nativis.' [ ] queen's remembrancer's miscellanies, - : 'nativi de sebrighteworth (proavus extraneus).' see app. x. [ ] warwickshire hundr. roll, queen's remembrancer's miscellaneous books, , , b: 'johannes le clerc tenet virg. terre pro eodem sed est libere condicionis.' augment. off., duchy of lancaster, court rolls, bundle , : 'unum mesuagium et acre terre in holand que sunt in manu domini per mortem w. qui eas tenuit in bondagio. ipse fuit liber, quia natus fuit extra libertatem domini.' [ ] glastonbury inquisitions of (roxburghe series), : 'radulfus niet tenet dimidiam virgatam.' [ ] glastonbury inquis. (roxburghe series), : 'rogerus p. tenet virg. terre: pro una medietate dat. xxx d. et pro alia medietate operatur sicut neth et seminat dimidiam acram pro churset et dat hueortselver.' ibid. : 'osbertus tenet virgatam terre medietatem pro ii sol. et dono et pro alia medietate operatur quecumque jussus fuerit sicut neth.' cartulary of abingdon (rolls series), ii. : 'illi sunt neti de villa. aldredus de brueria sol. pro dimidia hida et arat et varectat et seminat acram suo semine et trahit foenum et bladum.' ibid. ii. : 'bernerius et filius suus tenent unam cotsetland unde reddunt cellario monachorum sestaria mellis et camerae d.'--'_de netis._ robertus tenet dimidiam hidam unde reddit sol. et den. et arabit acram et seminabit semine suo et trahet foenum et bladum. hoc de netis.' [ ] black book of rochester cathedral (ed. thorpe), , a: 'consuetudines de hedenham et de cudintone. dominus potest ponere ad opera quemcumque voluerit de netis suis in die st. martini. et sciendum quod neti idem sunt quod neiatmen qui aliquantulum liberiores sunt quam cotmen, qui omnes habent virgatas ad minus.' [ ] cartulary of shaftesbury, harl. mss. , f. : 'et habebit unum animal quietum in pastura, si est net, et de aliis herbagium. et si idem fuerit cotsetle debet operari diebus.' ibid. : 'tempore henrici regis fuerunt in t. neti sed modo non sunt nisi et ex qui [non] sunt nicholaus tenet terram [trium] et sunt in dominico; et cotmanni fuerunt tempore henrici regis qui non sunt modo, quorum trium tenet terram nicholaus et sunt in dominico.' ibid. : 'cotsetle ... debet metere quantum unus nieth ... et debet collocare messem vel ... aliud facere ... dum neth messem attrahat ... pannagium sicut neth.' ibid. : 'si moriatur cotsetle pro diviso dabit d. et vidua tenebit pro illo id divisum tota vita sua. si moriatur neatus dabit melius catellum et pro hoc tenebit quietus.' [ ] glastonbury inquis. : 'et nieti tenent acras unde reddunt s.' ibid. : 'nieti habent unum pratum pro s.' [ ] glastonbury inquis. : 'ernaldus buriman dimidiam virgatam, iohannes burimannus dimidiam virgatam.' cf. custumal of bleadon, p. ; cartulary of shaftesbury, harl. mss. , f. . [ ] it is to be found sometimes out of the danish shires, e.g. in oxfordshire. rot. hundred. ii. , b: 'bondagium: johannes bonefaunt tenet unam virgatam terre de eodem roberto ... reddit ... sol. pro omni servicio et scutagium quando currit d.' of course there were isolated danish settlements outside the denelaw. [ ] rot. hundred. ii. , a: 'tenentes alicie la blunde. _bondi_, a. habet in eadem villa villanos, quorum quilibet tenet mesuagium cum a. id. al. hab. bondum qui ten. a. _custumarii_, id. al. habet villanum, qui tenet mes. cum a.' rot. hundred. ii. , a: 'de w. le blunde. _villani_, r. de badburnham. _bondi cotarii._' cf. ibid. , b; , a: 'libere tenentes ... custumarii ... bondi.' [ ] ramsey inquisitions, galba, e. x. : 'w.l. tenet in landsetagio a. pro den. et ob. r. a. de landsetagio et a. de novo.' cartulary of ramsey (rolls series), i. : 'g.c. dat dim. marcam ut k. filius suus fiat heusebonde de a. terrae de lancetagio.' registr. cellararii of bury st. edmund's, cambridge university, gg. iv. , f. , b: ' acre unde a. fuerunt libere et lancettagii.' cartulary of ramsey (rolls series), i. : 's. cl. recognovit, quod a., quas tenet, sunt in lanceagio dom. abbatis _salvo corpore suo_ et quod faciet omnes consuetudines serviles ... _lancectus nacione_.' [ ] domesday of st. paul's, : 'item omnes operarii dimidiae virgatae debent invenire vasa et utensilia ter in anno ad braciandum.' cf. . [ ] rot. hundred. ii. , . cf. , a: 'libere tenentes ... nicholaus trumpe a. terre cum mesuagio et red. per ann. d. custumarii ... nicholaus trumpe ten. a. terre et redd. sol.' [ ] exch. q.r. misc. alien priories, / . (chilteham): '... redditus villanorum de villanis libre, s. d. item sunt custumarii qui debent arare bis per annum cum carucis.... item sunt villani qui debent herciare quilibet eorum per dies,' etc. [ ] cartulary of st. peter of gloucester (rolls series), iii. : 'omnes consuetudinarii majores habebunt tempore falcationis prati unum multonem, farinam, et salem ad potagium. et minores consuetudinarii habebunt quilibet eorum panem et omnes caseum in communi, unam acr. frumenti pejoris campi de dominico et unum carcasium multonis, et unum panem ad natale.' [ ] cartulary of malmesbury (rolls series), i. , . cf. i. , . cartulary of st. mary of worcester (camden society), , b; rot. hundred. ii. , b. [ ] rot. hundred ii. , a. cf. exch. q.r. alien priories, / : 'item sunt in eadem villata de wardeboys dimidias virgatas--que vocantur akermannelondes, quorum w.l. tenet / virgatam pro qua ibit ad carucam abbatis si placeat abbati vel dabit sicut illi qui tenent maltlondes preter d.' rot. hundred, i. : 'utrum akermanni debent servicium suum vel servicii redempcionem.' [ ] registr. cellararii of bury st. edmund's, cambridge university, gg. iv. , f. : 'gersumarii (custumarii).... gersuma pro filia sua maritanda.' ibid. , b: 'tenentes acrarum custumarii--omnes sunt gersumarii ad voluntatem domini.' cartulary of bury st. edmund's, harl. mss. , f. , d: 'nichol. g gersumarius tenet a. pro sol. que solent esse custumarie.' i may add on the authority of mr. f. york powell that _landsettus_ (land-seti), as well as _akermannus_ (aker-maðr) and _gersuma_ (görsemi), are certainly danish loan-words, which accounts for their occurrence in danish districts. [ ] hale, introduction to the domesday of st. paul's, xxv: 'if we compare the services due from the hidarii with those of the libere tenentes on other manors, it will be evident, that the hidarii of adulvesnasa belonged to the ordinary class of villani, their distinction being probably only this, that they were jointly, as well as severally, bound to perform the services due from the hide of which they held part.' [ ] eynsham inquest, , a: 'summa (prati) xvi a. et iv perticas que dimidebantur xi virgatariis et rectori ut uni eorum et quia jam supersunt tantummodo virgatarii et rector, dominus habet in manu sua porciones dicti prati.' [ ] cartulary of battle, augmentation office, miscell. books, , f. , s: 'yherdlinges ... custumarii.' ibid. , b: 'majores erdlinges scil. virgarii. halferdlinges (majores cottarii) minores cottarii.' [ ] black book of peterborough, : 'in scotere et in scaletorp-- plenarii villani et dimidii villani--plenarii villani operantur diebus in ebdomada.' [ ] glastonbury inqu. (roxburghe series), : 'operatur ut alii ferlingseti.' [ ] glastonbury inqu. (roxburghe series), : 'cotsetle debent faldiare ab hoccade usque ad festum s. michaelis.' cartulary of st. peter of gloucester (rolls series), iii. : 'burgenses gloucestriae reddunt una cum aliis tenentibus ad manerium berthonae praedictae per annum de coteriis cum curtillagiis in suburbio gloucestriae quorum nomina non recolunt solidos d. de redditu assiso.' ibid. iii. : 'cotlandarii: johannes le waleys tenet unum mesuagium cum curtillagio et faciet bederipas et dies ad fenum levandum, et valent - / d.' [ ] norfolk feodary, additional mss. , a: 'et idem thomas tenet de predicto roberto de supradicto feodo per predictum servicium sexaginta mesuagia; villani de eodem thoma tenent. item idem thomas tenet de predicto roberto cotarios, qui de eo tenent in villenagio,' cf. rot. hundred, ii. , a. [ ] cartulary of battle, augment. office, misc. books, , f. , b: 'virgarii ... cotarii, qui tenent dimid. virgatam.' ibid. , b: 'cottarii majores et minores.' [ ] glastonbury inquis. (roxburghe series), : 'rad. forest. / cotsetland pro d. et operatur sicut dimidius cotarius sed non falcat.' [ ] glastonbury inquis. (roxburghe series), : 'predictus w. habet tres bordarios in auxilium officii sui. illi tres bord. habent corredium suum in aula abbatis, in qua laborant.' terrae templariorum, queen's rem. misc. books, , f. : 'unusquisque bordarius debet operari una die in ebdomada.' cf. , b. [ ] the history of the terms in saxon times and the terminology of the domesday survey will be discussed in the second volume. my present object is to establish the connexion between feudal facts and such precedents as are generally accepted by the students of saxon and early norman evidence. [ ] thorold rogers, history of agriculture and prices, i. p. . [ ] glastonbury cart., wood mss., i. f. , b (bodleian libr.): 'noverit universitas vestra me vendidisse domino ricardo vicario de domerham philippum hardyng nativum meum pro solidis sterling unde ego personam ipsius philippi ab omni nativitate et servitute liberavi.' cf. gloucester cartulary (rolls series), ii. . madox, formulare anglicanum, , gives several deeds of sale and enfranchisement by sale. dr. stubbs had some doubts about the time of these transactions, but deeds of sale of the twelfth and thirteenth centuries occur, and are preserved in the record office. see deputy keeper's reports, xxxvi. p. . [ ] glastonbury inquis., tempore abb. michaelis, addit. mss. , , f. : 'petrus filius margarete tenet virgatam terre .. nec potest filiam suam maritare sine licentia domini vel ballivorum.' cf. cartulary of newent, add. mss. , , f. : 'emit filiam suam.' cartulary of st. peter of gloucester (rolls series), iv. : 'item, quod quilibet praepositus habeat potestatem concedendi cuicunque nativae, ut possit se maritare tam extra terram domini quam infra, acceptis tamen salvis plegiis pro ea de fine faciendo ad proximam curiam; cum si forte praesentiam ballivi expectasset in partibus remotioribus agentis casu interveniente forte nunquam gauderet promotione maritali.' [ ] cartulary of christ church, canterbury, harl. mss. , f. : 'tenens de monday land, si filiam infra villam maritaverit d. et si extra homagium sol.' black book of coventry, ashmol. mss. , f. : 'radulfus bedellus de hidis tenet virgatam terre et prati. et dabit merchettam pro filia sua maritanda, si eam maritaverit extra villenagium episcopi.' [ ] cartulary of glastonbury, wood mss. i. (bodleian), f. . s: 'si nul de neffes folement se porte de son corps parque le seignour perd la vente de eux.' [ ] warwickshire hundred roll, queen's rem. misc. books, no. , f. , a: 'redempcio carnis et sanguinis et alia servicia ad voluntatem domini.' rot. hundred. ii. , b: 'in villenagio virgate terre quarum quelibet debet ei per annum s. vel opera ad valorem, tenentes etiam illarum sunt servi de sanguine suo emendo ad voluntatem dicti abbatis et ad alia facienda, que ad servilem condicionem pertinent. in cottariis cotagia de eadem servitute et condicione.' [ ] how very difficult it was sometimes to decide the question, whether merchet had been paid or not, may be seen from the following instances:--coram rege, henry iii, m. : 'et non possunt inquirere nec scire quod tempore johannis regis dederunt merchettum vel heryettum sed bene credunt quod hoc fuit ex permissione ipsius regis et non per aliquam convencionem, quam fecerat eis pro predictis libris.' cartulary of ramsey (rolls series), i. : 'de merchetto nesciunt sine majori consilio.' [ ] y.b. / edw. i, p. . [ ] note-book of bracton, pl. . [ ] gloucester cartulary (rolls series), iii. : 'item quod non permittitur, quod aliquis vendat equum masculum vel bovem sibi vitulatum sine licentia, nisi consuetudo se habeat in contrarium.' rot. hundred. ii. , a: 'si habeat equum pullanum, bovem vel vaccam ad vendendum, dominus propinquior erit omnibus aliis et vendere non debent sine licentia domini.' rochester cartulary (ed. thorpe), , a: 'si quis habuerit pullum de proprio jumento aut vitulum de propria vacca et pervenerit ad perfectam etatem, non poterit illos vendere, nisi prius ostendat domino suo et sciat utrum illos velit emere sicut alios.' rot. hundred. ii. , a: 'item si ipse habeat pullum vel boviculum et laboraverit cum illo non potest vendere sine licentia domini, sed si non laboraverit licitum.' [ ] cartulary of st. mary of beaulieu, nero, a. xii. f. . b: 'pro filio coronando et pro licencia recedendi faciet sicut illi.' cartulary of st. peter of gloucester (rolls series), iii. : 'item quod nullo masculo tribuatur licentia recedendi a terra domini sine licentia superioris hoc proviso, quod consuetudines a servis dominus debitas ad plenum recipiat, contradicentes attachiando ut inde respondeant ad curiam.' [ ] duchy of lancaster court rolls, bundle , no. (record office): 'et quia non sunt residentes dant chevagium.' lancaster court rolls, bundle , no. , m. : 'johannes le grust dat comiti ii solidos et ii capones ut possit manere ubi sibi placuerit.' [ ] lancaster court rolls, bundle , no. , m. : 'capones de reditu ut custumarii possint manere super terram radulfi de wernore sed dictus will. erit in visu franciplegii dom. comitis.' [ ] suffolk court rolls (bodleian), : 'preceptum inquirere nomina eorum qui terram servilem vendiderunt per cartam et quibus, et qui sunt qui terram liberam adquisierunt et ibi resident et prolem suscitant et ob hoc libertatem sibi vindicant.' cartulary of st. alban's, : 'ubi villani emunt terras liberorum de catallis nostris.' [ ] cart. glouc. (rolls ser.), iii. : 'item, inhibeatur nativis domini manerii ne aliquid alicui dent per annum in recognitione, ut aliquo gaudeant patrocinio.' [ ] lancaster court rolls, bundle , no. , m. : 'nativus receptatus apud latfeld sine licentia domini.' [ ] cartulary of shaftesbury, harl. mss. , f. : 'fugitivi domine, r. fil. al. manet in br. sub willelmo.' ramsey inqu., galba e. x. f. , b: 'isti sunt nativi abbatis: e. et o. manent apud gomcestre.' ibid. : 'a. est nativus domini abbatis, sed dicit se esse hominem episcopi.' cartulary of shaftesbury, harl. mss. , f. : 'nicholaus habet nativos domine, partim terram tenentes in calumpnia domine partim super terram nicholai.' [ ] coram rege, pasch. edw. i, m. : 'villanus fugitivus an in villenagio tenens et adventicius.' [ ] eynsham inqu. (chapter of christ church, oxford), , a: 'quas adam pater ipsius adquisivit et quia _quicquid servis adquiritur domino adquiritur_ faciat inde dominus quod sibi videatur expediens.' [ ] register of st. mary of barnwell, harl. mss. , f. : 'quidam villanus de bertone tenuit unum mesuagium de duobus dominis ... _quicquid servus acquirit acquiritur domino suo_.' [ ] black book of coventry, ashmol. mss. , f. : 'et cum obierit, dominus habebit suum melius animal et nihilominus habebit omnes equos masculos, carrectam ferratam, ollum eneum, pannum laneum integrum, bacones integros, omnes porcos excepta una sue, et omnes ruscos apium, si qua hujusmodi habuerit.' [ ] formulary of st. alban's, camb. univ., ee. iv. . [ ] lancaster court rolls, bundle , no. : 'petrus filius gerardi nativus domini defunctus est et habuit in bonis domino pertinentibus unam vaccam que appreciatur ad sol. et venditur w. instauratori.' cartulary of christ church, canterbury, addit. mss. , f. , b: 'et sciendum, quod si quis custumarius domini in ipso manerio obierit, dominus habebit de herietto meliorem bestiam. et si bestiam non habuerit, dabit domino pro herietto sol. d.' [ ] cartulary of battle, augment. off. misc. books, no. , f. , a: 'et post mortem cujuslibet predictorum nativorum dominus habebit pro herieto melius animal, si quod habuerit, si vero nullam vivam bestiam habeant, dominus nullum herietum habebit ut dicunt. filii vel filiae predictorum nativorum dabunt pro ingressu tenementi post mortem antecessorum suorum tantum sicut dant de redditu per annum. [ ] gloucester cartulary, iii. : 'et post decessum suum dominus habebit melius auerium ejus nomine herieti, et de relicta similiter. et post mortem ejus haeres faciet voluntatem domini, antequam terram ingrediatur.' [ ] gloucester cartulary (rolls series), iii. : 'dicunt etiam quod relicta sua non potest in dicta terra maritari sine licentia domini.' cartulary of christ church, canterbury, add. mss. , f. , b: 'si autem per licenciam domini se maritaverit, heredes predicti defuncti predictum tenementum per licenciam domini intrabunt et uxorem relictam dicti defuncti de medietate dicti tenementi dotabunt.' rot. hundred. ii. , b: 'item si obierit, dominus habebit melius auerium nomine herietti et per illum heriettum sedebit uxor ejus vidua per annum et unum diem et si ulterius vidua esse voluerit faciet voluntatem domini.'--the custom in some of the manors of st. peter of gloucester was peculiar. gloucester cartulary (rolls series), iii. : 'matilda relicta praepositi tenet dim. virg. contin. a. ( sol.)--et tenet ad terminum vitae abbatis.... et debet redimere filium et filiam ad voluntatem domini.... et si obierit, dominus habebit melius auerium nomine domini, et aliud melius auerium nomine rectoris, et de marito cum obierit similiter.' when the lord was an ecclesiastical corporation he not unfrequently got two beasts, one as a heriot and the other as a mortuary due to him as rector of the parish. [ ] worcester cartulary (camden series), : 'de antiquis consuetudinibus villanorum, quaelibet etiam virgata dabit iii heriet, sc. equum cum hernesio et duos boves, et dimidia virgata duos heriet, sc. equum cum hernesio et bovem. alii autem dabunt equum vel bovem.' [ ] glastonbury inqu. (roxburghe series), , a: 'item non vendet bovem vel equum de sua nutritura sine licencia domini, nec coronare faciet filium nec maritabit filiam sine licencia domini, dabit heriettum melius animal, faciet finem cum domino pro ingressu habendo ad voluntatem domini communiter per solidos et omnia alia faciet que nativo incumbunt.' the relief ought to be discussed in connexion with the obligations of the holding. i speak of it here because the documents mention it almost always with the heriot. [ ] cartulary of st. mary of beaulieu, nero, a. xx. f. , b: 'pro filio coronando, filia maritanda, fine terre ... secundum qualitatem personarum et quantitatem substancie et terre.' [ ] rot. hundred. ii. , a: 'debet talliari ad voluntatem domini quolibet anno.' [ ] ibid. ii. , b: 'et debet talliari ad voluntatem domini semel in anno et debet gersummare filiam et fieri prepositus ad voluntatem domini.' [ ] cartulary of battle, augment. off. misc. books, no. , f. , a: 'amerciamenta tenentium, qui redditum tempore statuto non persoluerunt.' reg. cellararii of bury st. edmund's, cambridge univ., gg. iv. . , b; cf. eynsham inqu. ii. a: (inquisitio de statu villani): 'subtraxerunt sectam curie a longo tempore dicendo se esse liberos.' [ ] formulary of st. alban's, cambridge univ., ee. iv. , f. , a: 'servilia--videlicet secta curie de tribus septimanis in tres et secta molendini.' we find it denied in the king's court that a free man can be bound to do suit to the lord's mill; bracton's note-book, p. : 'nota quod liber homo non tenetur sequi molendinum domini sui nisi gratis velit.' [ ] bury st. edmund's, registrum album, cambridge univ., ee. iii. , f. , b: 'liberi excepti a falda domini.' [ ] as to scotale, see stubbs, const. hist. § . [ ] reg. cellararii of bury st. edmund's, cambridge univ., gg. iv. . , b: 'per fidelitatem custumarii ... et per alias consuetudines serviles.' [ ] y.b. / edward i, p. : 'kar nent plus neit a dire, jeo tenk les tenements en vileynage, ke neit a dire ke, jeo tenk les tenements demendez ver moy a la volunte le deen,' etc. see above, chapter ii. [ ] chron. mon. de abingdon, ii. (rolls series). [ ] exch. q.r., misc. books, no. , f. , a: 'habet servos tenentes acras terre ad voluntatem domini in servagio.' f. , b: 'habet ibidem servos tenentes virgatas terre et dimidiam in servagio ... et possunt omnes removeri pro voluntate domini.' [ ] harl. mss. , f. : 'volens autem dominus de wahell retinere ad opus suum totum parcum de segheho ... abegit omnes rusticos qui in predicto loco iuxta predictum boscum manebant.' cf. cor. rege, pasch. edw. i, oxon. . [ ] battle abbey, augment. off. misc. books, , f. , a: 'et memorandum quod omnes supradicti nativi non possunt ... prostrare maremium crescens in tenementis que tenent sine licencia et visu ballivi vel servientis domini et hoc ad edificandum et non aliter.' add. charters, '(transgressiones stephani chenore) ... fecit vastum ... in boscis quos idem stephanus tenuit de domino in bondagio cum de quercis fraxinis pomariis et aliis arboribus vastos (ramos?) asportavit.' [ ] suffolk court rolls (bodleian), , a: 'rob. gl. assertavit pomaria sua et fecit wastum super vilenagium comitis.' [ ] suffolk court rolls (bodleian): 'quia henricus bercarius plegios non potuit invenire ad heredificandum mesuagium quod fuit w.c. et ibi attractum suum facere.' [ ] duchy of lancaster court rolls (record off.), bundle , no. : 'emma ... venit et sursum reddit cotagium et acras et dimidiam terre quas tenuit de domino in bondagio. et venit thomas filius ejus et capit dictam terram et dat ad ingressum solidos.' b. , no. : 'galfridus percarius venit et tradidit terram suam ... domino comiti pro paupertate. robertus filius eius postea venit et finem fecit pro habenda seisina dicte terre.' [ ] duchy of lancaster court rolls, b. , no. : 'dicit etiam quod dicta terra capta est in manu domini edmundi pro redditibus et serviciis inde a retro existentibus.' essex court rolls, (bodleian): 'preceptum est capere in manu prioris totam residuam terram custumariam quam matildis le someters predicta tenet de feodo prioris quia vendidit de terra sua custumaria ... libere per cartam contra consuetudinem manerii.' [ ] glastonbury inqu. (roxburghe series), ; gloucester cartulary (rolls series), iii. . [ ] capitula halimoti, bodleian mss., wood, i. f. , b: 'si nul soit en un graunt tenement e ne puisse les droitures de son tenement sustener e un aultre homme en un petit tenement que meutz tendroit le graunt tenement al prow le seigneur e le tenement.' [ ] rot. hundred, ii. , a: in villenagio tres virgatae et dimidia.... et sunt tenentes illarum servi de sanguine suo emendo.... in libere tenentibus _pro certis serviciis_ per annum,' etc. [ ] glastonbury inquis. (roxburghe series), : 'quantum quisque teneat, omne ejus servitium; quis tenet libere et quantum et quo servitio et quo guaranto et quo tempore; si aliqua terra fuerit facta libera in tempore henrici episcopi, vel postea, que debuit operari; quo guaranto hoc fuit, et in quantum sit libera; si dominicum sit occupatum vel foras positum in libertate vel vilenagio, et si ita fuerit domino utilius sicut est vel revocatum.' [ ] ibid. : 'j. clericus tenuit in tempore henrici episcopi apud domerham unam virgatam quam adhuc tenet et aliam virgatam apud stapelham pro solidis. recepta villa de domerham ad firmam, ipse propria auctoritate dimisit virgatam de stapelham et dimidiam virgatam in domerham in excambium cepit quia propinquior fuit. hec dimidia virgata operari solet, nunc autem est libera. virgata vero de stapelham post illud excambium operari solet que ante hoc libera fuit.' [ ] ibid. : 'de dono xxix solidi et vi denarii. et de anderdo deficiunt vj den. quia tenet liberius quam predecessores sui solebant tenere.' [ ] ramsey cartulary (rolls series), i. : 'de his septem hydis est una _hyda libera_. de sex hydis, quae restant, tenet marsilia filia a. de r. duas virgatas ad censum. quinque hydae et tres virgatae, quae restant, tenentur _in puro villenagio_.' [ ] galba, e. x. f. . [ ] extensio de terris roberti de sto. georgio (lincoln) inquis. p. mort. henry iii, no. : 'idem habuit in _villenagio_ bovatas terre et partes unius bovate que rustici tenent et quelibet bovata valet per annum sol. pro omni servicio ... habuit in _liberis serviciis_ unam bovatam quam radulfus filius g. de eo tenuit per cartam pro solidis per annum pro omni servicio.' [ ] bury st. edmund's, reg. cellararii, cambr. univ., gg. iv. , f. , a: 'w. de bruare tenet i rodam custumarie et per alias consuetudines serviles ... alteram libere et per servicium denariorum.' cf. gloucester cartulary (rolls series), iii. . [ ] battle abbey, reg. augment. off. misc. books, no. , f. , b: 'isti prenominati (liberi tenentes) sunt quieti per redditum suum de communibus servitiis, debent tamen herietum et relevium.' glastonbury cart., wood mss., i. p. iii.: 'si nul soit enfraunchi de ces ouveraignes dont la uile le est le plus charge.' [ ] ramsey inqu., galba, e. x. , d: 'walterus abbas fecit r. francum de terra patris sui que fuerat ad furcam et flagellum.... multos de servicio rusticorum francos fecit.' ramsey cartulary (rolls series), i. : '... quaelibet virgata de fleyland.' the same land appears as 'quaelibet virgata operaria quae non fuerit posita ad censum.' [ ] spalding priory, reg., cole mss., vol. , f. : 'de tenentibus terram operariam de priore in spalding: w. de a. tenet acras terre pro quibus debet operari qualibet die per annum ad voluntatem domini ad quocumque opus dominus voluerit, cum carecta, cortina, vanga, flagello, tribulo, furca, falce.' coram rege, mich., / henry iii, m. b: 'et similiter predictus petrus distringit eos pro consuetudinibus et servitiis que nec antecessores eorum nec ipsi facere consueverunt ut cum furcis et flagellis.' [ ] eynsham cartulary, christ church mss., no. , f. , a: 'willelmus f. tenet unum cotagium et quartam partem unius virgate terre qui facere consuevit pro rata porcione sicut virgatarius. modo ponitur ad firmam dum domina placet ad solidos, d.,' etc. cf. domesday of st. paul's (camden series), . this is in substance the difference between 'bondagium et husbandland,' inquis. p. mort. henry iii, no. ; hexham priory cartulary (surtees series), p. xx. [ ] domesday of st. paul's (camden series), . [ ] st. alban's formulary, cambridge univ., ee. iv. : 'ne uno homini plures terre tradantur, et si modo unus plures tenet, dividantur, si commode et honeste fieri poterit.' [ ] domesday of st. paul's (camden series), ; duchy of lancaster court rolls, b. , no. : 'et quia huiusmodi tenementum nullus potest vendicare hereditarie ut de aliis villenagiis successive.' [ ] hereford rolls, (bodleian): 'et concessum est ei tenere dictum mesuagium et unam acram terre sibi et heredibus suis secundum consuetudinem manerii per servicia inde debita et consueta.' essex rolls, (bodleian): 'amicia de r. que tenet ex consuetudine manerii.' [ ] extractus rotulorum de halimotis, cambridge univ, dd. vii. , f. , a. [ ] essex rolls, (bodleian), m. : 'johannes filius w.b. venit et clamavit unum mesuagium et quatuor acras terre cum pertinenciis ut jus et hereditatem suam post mortem dicti w. patris sui faciendo inde dominis predictis servicia debita et consueta nomine villenagii et dat domino ad inquirendum de jure suo et si sit plene etatis et heres dicti w. nec ne,' etc. [ ] eynsham cartulary, christ church mss., no. , f. , b: 'matildis b. tenet de domino unum cotagium cum curtilagio in voluntate domini.' cf. glastonbury inqu. (roxburghe series), ; gloucester cartulary (rolls series), iii. ; domesday of st. paul's (camden series), . [ ] reg. cellararii mon. bury st edmund's, cambridge univ., gg. iv. , f. , b: '(curia edw. ii) ... dicunt quod quidam robertus heth pater dictorum r.w. et j. tenuit de conventu per virgam in villa de berton magna ... et quia dedixerunt cepisse dictam terram per virgam ideo potest seisiri dicta terra in manum domini.' registr. album vestiarii abbatiae s. edmundi, cambridge univ., ee. iii. , f. , b: 'tenentes de mollond ... tenent per virgam in curia.' eynsham cartulary, christ church mss., no. : 'ricardus w. tenet unum cotagium et duas acras terrae campestres per rotulum curie pro sol.' cf. , a. [ ] note-book of bracton, pl. . [ ] ely register, cotton, claudius, c. xi. f. iii. b: 'habebit duas pugillatas avene ex gratia, ut juratores dicunt, per longum tempus usitata.' [ ] warwickshire roll, exch. q.r. no. , f. , b: 'servus ... cum fecerit exennium ... comedet cum domino.' [ ] christ church, canterbury, cartulary, add. mss. , f. , b. cf. gloucester cartulary (rolls series), iii. . [ ] custumal of battle abbey (camden ser.), : 'et debet herciare per duos dies ... pretium operis iiij. d. et recipiet de domino utroque die repastus pretii iij d. et sic erit dominus perdens j. d. et sic nichil valet illa herciatio ad opus domini.' [ ] coram rege, pasch., edw. i, lege, : 'villani circulare (sic) non consueverunt nisi ex voluntate.' [ ] glastonbury inqu. (roxburghe series), : 'sed non debet carriare nisi dominus prestaverit suum plaustrum.' [ ] cotton mss., claudius, c. xi, f. , b: 'sed juratores dicunt quod nunquam hoc fecerunt nec de iure facere debent.' [ ] rot. hundred. ii. , a: 'servi ... nec potest filiam maritare nec uxorem ducere sine licencia domini; debet et salvo contenemento suo talliari et ad omnia auxilia communia scottare et lottare secundum facultatem suam,' etc. [ ] rot. hundred. ii. , b: 'et modo omnia illa arrentata sunt et dant per annum sol. d.' [ ] exch. q.r. min. acc., bundle , no. : 'et solebant facere servicia consueta, sed per voluntatem et ad placitum domini extenta sunt in denariis.' cf. abingdon cartulary, ii. . rot. hundred. ii. , a: 'omnes isti prenominati nomine villenagii sunt ad voluntatem domini de operibus eorundem,' cf. ibid. , b. [ ] worcester cartulary (camden series), , b: 'haec villa tradita est ab antiquo villanis ad firmam, ad placitum cum omnibus ad nos pertinentibus.' cf. gloucester cartulary, iii. . [ ] worcester cartulary (camden series), l. c.: 'praeterea percipimus medietatem proventuum et herietum, praeterea debent metere, ligare et compostare bladum de antiquo dominico de hordewell ... et gersummabunt filias.' [ ] glastonbury cartulary, bodleian mss., wood, i., f. , a: 'jocelynus dei gratia bathoniensis episcopus.... noveritis nos quietos clamasse omnes homines abbatie glastonie de winterburne in perpetuam de arruris et aliis operacionibus quas facere debebant castro marleberghe de terra de winterburne, quos homines nostros henricus illustris rex anglie nobis concessit.' [ ] wartrey priory cartulary, fairfax mss. f. , a: 'et adam dicit quod predictus prior villenagium in persona ipsius ade allegare non potest quia dicit quod dudum convenit inter quemdam johannem dudum priorem de wartre ... et quendam henricum de w ... patrem ipsius ade videlicet quod isdem prior ... per quoddam scriptum indenturam concesserunt henrico ... quoddam toftum simul cum duabus bovatis terre.' [ ] malmesbury cartulary (rolls series), ii. : 'nos tradidisse ... roberto le h. de k. et helenae uxori suae, et agneti filiae eorum primogenitae nativis nostris, omnibus diebus vitae eorum, unam domum. ita quod non licet praedicto roberto alicui vendere nec occasione istius traditionis aliquam libertatem ipsis vendicare.' [ ] as to molmen, i shall follow in substance my article in the english historical review, , iv. p. . we already find the class in cartularies of the twelfth century, in the burton cartulary, and in the boldon book. see round in the english historical review, , v. , and stevenson, ibidem, vi. . [ ] any number of examples might be given. i referred in my article to a record office document, exch. treas, of rec. min. acc. / : 'rogerus prepositus tenet acras pro solidis solvendis ad terminos principales. et dat gallinas at natale domini de precio den., et ova ad pascham, et debet homines ad precarias ad cibum domini et non extenduntur eo quod nihil dabunt in argento si servicium illud dominus habere noluerit. item idem adiuvabit leuare fenum ad precariam domini quod nihil valet ut supra. item idem faciet averagia londinium que valent d.... _custumarii_. johannes cowe tenet acras et dimidiam pro d.... et debet opera qualibet septimana, scilicet per septimanas videlicet a festo natali beate marie usque ad gulam augusti que continet in operibus per predictum tempus vi^{xx}xii (i.e. ) et valet in denariis sol.' etc. [ ] black book of st. augustine, canterbury, cotton mss. faustina, a. i. : 'de quolibet sullung (_ploughland_) solidos de mala ad quatuor terminos quos antecessores nostri dederunt pro omnibus iniustis et incausacionibus (_sic_) quas uobis ore plenius exponemus.' [ ] rochester costumal (ed. thorpe), , b: 'f. habet jugum terre te gavelland unius servicii et unius redditus. unumquodque jugum reddit solidos ad terminos--hoc est _mal_. in media quadragesima d. hoc est _gable_.' the cartulary of christ church, canterbury, in the british museum (add. mss. ) always gives the rents under the two different headings of _gafol_ and _mal_. [ ] the etymology of the word is traced by stevenson, l. c. [ ] ashley, economic history, i. pp. , . [ ] registrum album abbatiae sancti edmundi de burgo, cambridge university, ee. iii. f.; , b: 'memorandum quod anno regni regis edwardi filii regis henrici --dominus johannes de norwold abbas sti. edmundi ad ulteriores portas manerii sui de herlawe, ad instanciam cecilie le grete de herlawe hereditatem suam de mollond infra campum dicte ville jacentem post mortem viri sui a pluribus tenentibus abbatis petentis coram eodem abbate, eo pretextu quod vir suus adventicius dictam hereditatem suam ipsa invita vendidit et alienauit, per subscriptos inquisivit, utrum ipse seu alii quicumque infra villam predictam mollond tenentes libere tenuerunt seu tenent, et per cartas aut alio modo.... qui omnes et singuli jurati dixerunt per sacramentum suum quod omnes _tenentes de molland solebant esse custumarii_ et fuerunt, sed abbas hugo primus et abbas sampson posterum et alii _abbates relaxarunt eis seruicia maiora et consuetudines pro certa pecunia_; modo arentati in aliquibus operibus ceteris, sed nihil habent inde nec tenent per cartas, sed per virgam in curia. et sunt geldabiles in omnibus inter custumarios et quod omnes sunt custumarie et servilis condicionis sicut et alii.' [ ] exch. treas. of rec. / . the classes follow each other in this way: 'liberi tenentes, molmen, custumarii.' cf. rot. hundred, ii. , a. [ ] harl. mss. , f. , b: 'inquisicio facta per totam socam de badefeud dicit quod si aliquis servus domini moritur et plures habuerit filios, si tota terra fuerit mollond primogenitus de iure et consuetudine debet eam retinere; si tota fuerit villana iunior; si maior pars fuerit mollond primogenitus, is maior pars fuerit villana iunior eam optinebit.' [ ] i cannot surrender this point (cf. stevenson, l. c.). that borough english existed in many free boroughs and among free sokemen is true, of course, and there it had nothing to do with servile status. it would have been wrong to treat the custom of inheritance as a sure test from a general point of view. but as a matter of fact it was treated as such a test from a local point of view by many, if not most, manorial arrangements. i refer again to the case from the note-book of bracton, pl. . the lord is adducing as proof of a plea of villainage: 'hoc bene patet, quia postnatus filius semper habuit terram patris sui sicut alii villani de patria.' i have said already that the succession of the youngest son appears with merchet, reeveship, etc., as a servile custom. [ ] q.r. min. acc. box . [ ] ramsey cartulary (rolls series), i. : 'decem hidae, ex quibus persona, liberi et censuarii tenent tres hidas et dimidiam, et villani tenent sex hidas.' [ ] domesday book, i. ; ramsey cartulary, i. , - . [ ] rochester cartulary (thorpe), , a: 'gavelmanni de suthflete.' [ ] cotton mss. tiberius b. ii, and claudius c. xi. [ ] cotton mss. claudius c. xi, f. , a: 'de hundredariis et libere tenentibus. philippus de insula tenet acras de wara et debet sectas ad curiam elyensem et ad curiam de wilburtone et in quolibet hundredo per totum annum,' etc. for a more detailed discussion of the position of hundredors, see appendix. [ ] in the description of aston and cote, a submanor of bampton, oxfordshire, _hundredarii_ are mentioned in rot. hundr. ii. . [ ] leg. henrici i, c. . the point has been lately elucidated by maitland, suitors of the county court, eng. hist. rev., july , and round, archaeological review, iv. [ ] gloucester cart. iii. : 'et dicunt quod predictus thomas et socii sui subscripti debent aquietare villam de quolibet hundredo cyrencestriae et de respethate praeterquam ad visum franciplegii bis in anno.' ramsey inqu., cotton mss. galba e. x, : 'sequebatur comitatum et hundredum pro dominico abbatis.' madox, hist. of the exchequer, i. : 'serviet eis nominatim in omnibus placitis ad quae convenienter summonitus erit et ad defensionem totius villae estone aderit in hundredis et scyris in quibus erit quantum poterit.' warwickshire hundr. roll, q.r. misc. books, no. , f. , a: 'seriancia ad comitatum et hundredum.' [ ] ramsey cart. i. : 'j.r. tenet dimidiam hydam de veteri feoffamento et non reddit per annum aliquem censum abbati, quia est una de quattuor virgatis quae defendunt totam villatam de secta comitatus et hundredi per annum.' [ ] gloucester cart. iii. : 'henricus de marwent tenet unam virgatam continentem acras ... et facit forinseca [servitia], scil. sectas comitatus et hundredi, et alia forinseca.' cf. cart. of shaftesbury, . '... defendebat terram suam de omnibus forinsecis avencionibus.' [ ] seebohm, village community, , ; scrutton, common fields, . [ ] see the instances collected by maitland, introduction to rolls of manorial courts, selden soc., ser. ii, p. xxix, note . [ ] maitland, op. c. [ ] a few instances among many: gloucester cart. iii. : 'radulfus de e. tenet unam virgatam terrae continentem acras et reddit inde per annum non reditum aliquem, sed sequetur comitatum warwici et hundredum de kingtone pro domino, et curiam de clifforde pro omni servitio.' there are four other 'virgatarii liberi' besides this one. domesday of st. paul's (camden soc.), : 'thomas arkarius (tenet) iv virgatas pro solidis et debet facere sectam sire et hundredi.' he is a freeholder. worcester cart. (camden soc.), , c: 'de liberis ricardus de salford tenet dimidiam hidam de priore, quam thomas de ruppe tenuit de eo, et facit regale servitium tantum, et debet esse coram justiciariis itinerantibus pro defensione villae ad custum suum.' the ely 'hundredarii' are distinguished from the villains, and form by themselves a group which ranks next to the 'libere tenentes' or with them. [ ] ramsey, inqu. cotton mss. galba, e. x, f. : 'ecclesia ipsius ville possidet dimidiam hidam liberam et presbiter debet esse quartus eorum qui sequuntur comitatum et hundredum cum custamento suo.' cf. , . instead of attending separately the priest comes to be included among the four hundredors. [ ] britton, i. sqq. see maitland's introd. to manorial rolls, p. xxvii. [ ] maitland, op. c. pp. xxix, xxx. [ ] leg. henrici i. c. .; cf. ely register, cotton mss., claudius, c. xi, , a: 'et libere tenentes sui qui tenent per socagium debent unam sectam ad frendlese hundred, scil. ad diem sabbati proximum post festum st. michaelis.' the expression 'friendless' is peculiar. it appears in other instances in the ely surveys. may it not mean, that all the free tenants, even the small ones, had to attend and could not be represented by their fellows or 'friends'? [ ] glastonbury cart., wood mss., i. f. , a: 'et n. et g. veniunt et defendunt vim et iniuriam et talem sectam qualem ab eis exigit et bene cognoscunt quod per attornatos suos debent ipsi facere duas sectas per annum ad duos lagedaios ... sed si aliquis latro fuerit ibi iudicandus tunc debent liberi homines sui et prepositi uel seruientes sui debent interesse ad predictum hundredum ad faciendum iudicium et non ipsi in propria persona sua.' cf. malmesbury cart. (rolls ser.), ii. : 'item recognouit sectam ad hundredum de malmesburia per se vel per sufficientem attornatum suum. item recognouit et concessit quod omnes liberi homines sui de estleye sequantur de hundredo in hundredum apud malmesburiam sicut aliquo tempore predecessorum suorum facere consueverunt.' [ ] this may possibly account for the curious fact, that in every manor there are some tenants called 'freeman,' 'frankleyn,' and the like. they seem to be there to keep up the necessary tradition of the free element. for instance: eynsham cart. mss. of the chapter of christ church, oxford, xxix. f. , a: 'iohannes freman de shyfford tenet unam virgatam per cartam ... facit sectam ad comitatum et hundredum et hac de causa tenet tenementum suum.' cf. coram rege henry iii, m. : 'dicunt quod non est aliquis liber homo in eodem manerio nisi willelmus filius radulfi qui respondet infra corpus comitatus.' the fact is well known to all those who have had anything to do with manorial records. [ ] cf. maitland, suitors of the county court, eng. hist. review, july, . [ ] is it not possible to explain by the 'hundredor' the following difficult passage in domesday, ii. ? 'hugo de montfort invasit tres liberos homines ... unus ex his jacet ad feudum sancti petri de westmonasterio testimonio hundredi, sed fuit liberatus hugoni in numero suorum hundredorum (_corr._ hundredariorum?) ut dicunt sui homines.' it is true that the term does not occur elsewhere in domesday, but the reading as it stands appears very clumsy, and the emendation proposed would seem the easiest way to get out of the difficulty. [ ] y.b. / edw. i. (ed. horwood), pp. xix, . [ ] i may be excused for again referring to the stoneleigh reg. f. , d: 'quidam tenentes eiusdem manerii tenent terras et tenementa sua in _sokemannia in feodo et hereditate_ de qua quidem tenura talis habetur et omne tempore habebatur consuetudo videlicet quod quando aliquis tenens eiusdem tenure terram suam alicui alienare voluerit veniat _in curiam_ coram ipso abbate vel eius senescallo et per vergam sursum reddat in manum domini terram sic alienandam ad opus illius qui terram illam optinebit ... et si aliquis terram aliquam huiusmodi tenure infra manerium predictum per cartam vel sine carta absque licentia dicti abbatis alienaverit aliter quam per sursum reddicionem _in curia_ in forma predicta, quod terra _sic extra curia_ alienata domino dicti manerii erit forisfacta in perpetuum.' [ ] madox, exch. i. , e: 'monstraverunt regi homines et tenentes de soca de oswald kirke in com. nottinghamiae, quod cum soka illa dudum fuisset antiquum dominicum coronae angliae et dominus henricus quondam rex angliae progenitor regis socam illam cum pertinenciis dedisset et concessisset henrico de hastyngges habendam et tenendam ad communem legem ... ac licet homines et tenentes predicti et antecessores sui homines et tenentes de soca illa inter homines communitatis comitatus nottinghamiae et non cum tenentibus de antiquis dominicis coronae regis a tempore escambii predicti talliari consueverunt, assessores tamen tallagii regis in dominicis in comitatu nottinghamiae praedicto ... (eos) una cum illis de dominicis regis praedictis talliari fecerunt.' cf. , b, c. [ ] rot. hundr. ii. , a: 'liberi tenentes ... liberi sokemanni.' cf. , a. [ ] inquisit. post mortem henry iii, n. (record office): 'libere tenentes ad voluntatem ... libere tenentes in socagio ... libere tenentes per cartam.' rot. hundr. ii. , a. see appendix xii. [ ] warwicksh. hund. roll. q.r. misc. books, xxix. p. , b: '(tenens) per antiquam tenuram sine carta.' gloucester cart. iii. : 'de liberis tenentibus dicunt quod haeredes o.g. tenent tres virgatas terrae de antiqua tenura.' cf. iii. , . christ church cart., canterbury, add. mss. , p. : 'isti tenent antiquo dominico ... isti tenent antiquum tenementum ... inferius notati sunt operarii.' domesday of st. paul's, , : 'de antiqua hereditate.' cf. pollock, land-laws ( nd ed), p. . [ ] rot. hundr. ii. , b. [ ] rot hundr. ii. . [ ] coram rege, hill. edw. i, m. '(servicia sokemannorum) ... merchet ad voluntatem.' [ ] rot. hundr. ii. , a. [ ] rot. hundr. ii. , b. [ ] peterborough cart., cotton mss., faustina, b. iii. f. , . [ ] spalding priory cart., cole mss., xliii. p. . [ ] rot. hundr. ii. b. [ ] spalding cart. p. . [ ] ibid. p. : '_bondus_ dat auxilium ... scil. omnes _sokemanni_ unam marcam.' cf. . [ ] ely inqu., cotton ms., claudius, c. xi. , b: 'tota villata tam liberi, quam alii debent facere perticatas super calcetum de _alderhe_ [aldreth's causeway] sine cibo et opere.' cf. domesday of st. paul's, . [ ] domesday of st. paul's, , ; rot. hundr. ii. , b. [ ] domesday of st. paul's, : 'omnes isti libere tenentes metunt et arant ad precarias domini et ad cibum eius sine forisfacto.' the general rule is, that freeholders join only in the boon-works (precariae) and not in the regular week-work. but socmen are found engaged in this latter also. [ ] ely inqu., cotton mss., claudius, c. xi. f. : 'de feodis militum et libere tenentibus ... heriet ... relevium ... sed non dabit tallagium et gersumam.' b: 'herietum ... relevium ... pannagium ... tallagium.' ramsey cart. i. . [ ] gloucester cart. iii. and ; battle cart., augm. off. misc. books, n. , f. , b. [ ] ely inqu., cotton mss., claudius, c. xi. f. , b: 'omnes custumarii preter liberos qui non dant gersumam pro filiis et filiabus ...' [ ] e. g. ibid. , a. [ ] bury st. edmund's registrum album, cambr. univ., ee. iii. , f. , b: 'et nota quod si prepositus hundredi capiat gersumam de aliquo libero, dominus habebit medietatem.' suffolk court rolls, (bodleian): 'gersuma si evenerit filii vel filie, finem faciet in hundredo, sed celerarius habebit medietatem finis.' [ ] rot. hundr. ii , b; , a. [ ] ibid. ii , b. [ ] ibid. i. . [ ] coram rege, trin., edw. i, m. , d. [ ] rot. hundr. i. . [ ] cf. a very definite case of oppression, placit. abbrev., . [ ] statutes of the realm, i. . [ ] notebook of bracton, pl. and . [ ] rochester cart. (thorpe), a: 'dominus non debet aliquem operarium injuste et sine judicio a terra sua ejicere.' ibid. , a: 'in crastino sancti martini non ponet eos (dominus) ad opera sine consensu eorundem.' black book of st. augustine, cotton mss., faustina, a. i. f. , d: '(consuetudines villanorum de plumsted) villani de p. tenent quatuor juga et debent inde arare quatuor acras et seminare ... et debent metere in autumpno acras de ivernagio vel acras de alio blado.... et debent falcare acras prati.... item debent duo averagia per annum a plumsted ad newenton et nihil debent averare ad tunc nisi res que sunt ad opus conventus et que poni debent super ripam.' [ ] notebook of bracton, pl. : '... et consuetudo est quod uxores maritorum defunctorum habeant francum bancum suum de terris sokemannorum.' rot. hundr. i. , : 'habent et vendunt maritagia sokemannorum aliter quam deberent, quia in kancia non est warda.' [ ] cf. elton, tenures of kent. [ ] notebook of bracton, pl. : 'et ipsi veniunt et dicunt quid nunquam cartam illam fecit nec facere potuit quia uillanus fuit et terram suam defendidit per furcam et flagellum.' [ ] seebohm, village community, ; followed by scrutton, commons and common fields, ; and ashley, economic history, i. . [ ] maitland, introduction to manorial rolls, lxix. [ ] chandler, court rolls of great cressingham, p. : ' solidi de toto homagio quia recusaverunt preparare fenum domini. debitum ponatur in respectum usque proximam curiam et interea scrutatur le domesday.' a manorial extent is evidently meant. comp. domesday of st. paul's. [ ] ely inq., cotton mss., claudius, c. xi. , a: 'anelipemen, anelipewyman et coterellus manens super terram episcopi vel terram alicuius custumariorum suorum metet unam sellionem in autumpno ex consuetudine que vocatur luuebene.' cp. , a, 'quilibet anlepiman et anlepiwyman et quilibet undersetle metet dimidiam acram bladi,' etc., and ramsey, cart. i. .--i have not been able to find a satisfactory etymological explanation of 'anelipeman'; but he seems a small tenant, and sometimes settled on the land of a villain. [ ] of course in later times the test applied in drawing the line between freehold and baser tenure was much rather the mode of conveyance than anything else. the commutation into money rent of labour services due from a tenement 'held by copy of court roll' (a commutation which in some cases was not effected before the fifteenth century), did not convert the tenement into freehold; had it done so, there would have been no copyhold tenure at the present day. but i am here speaking of the thirteenth century when this 'conveyancing test' could not be readily applied, when the self-same ceremony might be regarded either as the feoffment by subinfeudation of a freehold tenant or the admittance of a customary tenant, there being neither charter on the one hand nor entry on a court roll on the other hand. thus the nature of the services due from the tenement had to be considered, and, at least in general, a tenement which merely paid a money rent was deemed freehold. [ ] it should be observed that the word demesne (_dominicum_) is constantly used in two different senses, (_a_) the narrower sense in which it stands for the land directly occupied and cultivated by the lord or for his use, and excludes the land held by his villain tenants, and (_b_) the wider sense in which it includes these villain tenements. the first meaning is that which the word usually bears in manorial documents, in which the _dominicum_ is contrasted with the _villenagium_ or _bondagium_. but in legal pleadings and documents which state the doctrine of the common law and the king's courts the villain tenements are part of the lord's demesne, he is seised of them in his demesne (_in dominico suo_). this discrepancy between what i may call the manorial and the legal uses of the term deserves notice as an indication of the imperfect adjustment of law to fact. i shall use the term in its narrower sense. [ ] eynsham cartulary, mss. of christ church, oxford, n. , f. , a: 'est una cultura nuncupata shyppelond, et continet in toto septem acras dimidiam acram et dimidiam rodam, et valet acra d., et bis successive seminatur.' inqu. p. mortem henry iii, n. (record office): 'extensio manerii de remdun (lincoln). sunt ibidem acre terre et faciunt duas carucatas. et seminata sunt per annum acre ... de waracto per annum d.' [ ] glastonbury survey of (roxburghe ser.), : 'idem tenet de dominico tres acras a tempore henrici episcopi quas colit in uno anno et altero non.' [ ] eynsham cart., , a: 'est ibidem prope alia cultura nuncupata clay-furlong et continet cum capitali inferiore octo acras unam rodam tres perticas cum dimidia, et potest ter seminari successive, videlicet post warectum ordium, anno sequente cum grosso pulstro et anno tercio cum frumento, et valet acra d.... (alia cultura) et potest ter seminari ut supra mutato grosso pulstro in pisas.' [ ] two husbandry treatises were chiefly in use in mediaeval england. the fourteenth-century ms., merton college , contains both, and both mention the two systems. (modus qualiter balliui et prepositi debent onerari super compotum reddendum et qualiter manerium custodiri), f. : 'e la vu les chaumps sunt semez e parti en deus, le iuernage e le trameys sunt tous semez en un champ.'--(maior husbonderia, otherwise walter of henley's treatise), f. : 'si les terres seent partiz en iii, la une partie en le yuernage, lautre partie en le quaremel, e la tierce partie a warect, donqes est la charrue de terre de x^{xx} acres' (sic, corr. ix^{xx}). 'e si vos terres seent partez en ii, com sont en plusurs pays, la une partie a yuernage e a quaremel, e lautre partie a waret, donqes serra la charue de terre de viii^{xx} acres.' cf. thorold rogers, six centuries, . [ ] fleta, ii. . [ ] malmesbury cart. (rolls ser.), ii. : 'de terris inbladandis et inhoc faciendis in campis de brokeneberewe et de burestone, a ponte de jule-brocke usque ad halbrigge de bremelham, ubi dictus ricardus dicebat se habere communam, ita quod nec abbas et conventus, nec eorum tenentes possint inhoc facere sine consensu dicti ricardi, nec pro voluntate sua terras suas ibidem inbladare ... abbas et conventus concesserunt praedicto ricardo ... ut cum terrae prenominatae inbladatae fuerint et blada a terris amota, liberam et plenam communam in praefatis terris una cum abbate et suis hominibus (habeat) sicut ipse vel praedecessores sui unquam melius et plenius habere consueverunt.... ita quod si de campo predicto in quo factum est inhoc pars quaedam remaneat inculta sine blado, in eadem parte habebunt predictus ricardus et heredes sui communam cum abbate et conventu et suis. similiter si villani praedicti ricardi nolint inhokare terras suas infra praedictum inhoc sitas, habebunt liberum ingressum et egressum ad warectandum eas.' [ ] coram rege, hill. edw. i, m. , d: 'item quicumque facit inheche scilicet excolit warectum frumento, ordeo vel auena, dabit pro qualibet acra unum denarium, excepta una acra quam habere debet quietam.' see app. xii. [ ] gloucester cart. iii. , : 'omnes dictae particulae jacent pro uno campo, summa acre arabiles, etc.... et de predicto campo possunt inhokari quolibet secundo anno acre et valet inde commodum eo anno solidos.... de dictis acris possunt quolibet secundo anno inhokari acre, et valet inde commodum eo anno sol. d.... et est summa totalis omnium acrarum arabilium . et est summa dictarum acrarum in valore denariorum librae solidi. de quibus subtracta tertia parte pro campo jacente ad warectum, sol. scilicet, remanent ad extentam annuam de puro librae sol. et de commodo terrae quae singulis annis potest inhokari sol. d.'--cf. minor husbanderia, merton coll. ms. , f. : 'e si li ad inhom, i deit veer quele cuture i prent del inhom, e de quel ble est seme checune cuture, e tel semail deit il cuiler tut per ly e respondre tut per ly, hors des autres blees.' [ ] cart. of boxgrave, cotton mss., claudius, a. vi. p. : 'debet compostare unam helvam ad frumentum et aliam ad ordeum.' essex court rolls (bodleian), : 'milencia tegulatrix posuit fimos in communa ad nocumentum custumariorum.' glastonbury inquest of (roxburghe ser.), : 'a. de n. occupavit quendam mariscum per concessum roberti abbatis et illum marliavit et coluit.' cf. domesday of st. paul's (camden ser.), : 'dicunt eciam quod emendatum est manerium in acris marlatis per willelmum thesaurarium ad summam solidorum.' ib. . [ ] malmesbury cart. (rolls ser.), ii. : 'concessimus ... roberto filio roberti ... illam virgatam terre quam a. de c. tenuit in campis, scilicet in uno campo acras et in alio campo acras.' [ ] gloucester cart., iii. : 'robertus abovetun tenet unam virgatam terre continentem acras in utroque campo.' [ ] ramsey register, cotton mss., galba, e. x. , d: 'radulfus tenet seliones in uno campo et in alio de vilenagio.' worcester cart. (camden ser.), , a: 'henricus clericus tenet unam virgatam, acras in uno campo et in alio. item tenet aliam virgatam similiter. t.t. tenet unam virgatam, acras excepto dimidio furtendello in uno campo et in alio. o. le e. tenet unam virgatam a. et / in uno campo et et dimidiam in alio. t. le f. tenet unam virgatam, acras in uno campo et in alio.' [ ] as in gloucester cart., i. : 'ecclesiam omnium sanctorum ... cum omnibus pertinenciis suis, videlicet unam virgatam terrae, undecim acras terrae in campo lucrabili.' cf. . [ ] dunstable cart., harleian mss. , f. , d: 'postquam buttum habuimus bis seminatio fuerit et non amplius, quia omnes ceteri non excolunt ibi terram, sed at pascua reservant.' [ ] eynsham cart., christ church, oxford, mss., n. , f. , b: 'placitum de haneberge in recordo de banco de termino s^{ti} trinitatis anni xliij (edw. iii) ... est quidam hamelettus vocatus tilgerdesle infra bundos ville de eynesham, infra quem hamelettum tam in vastis quam in terris, pratis et pasturis eiusdem hameletti iidem johannes smyth et omnes alii habent communam cum omnibus averiis suis tanquam pertinens ad tenementa sua que ipsi separati tenent in hanberge, scilicet in vasto et pastura quolibet anno per totum annum et in terris arabilibus post blada messa et asportata quousque ... resemenentur et quolibet tercio anno tempore warecti per totum annum eo quod omnes terrae arabiles infra dictum hamelettum per duos annos continuos debent seminari et tercio anno warectari, et in pratis post fenum levatum et asportatum usque ad festum purificacionis beate marie.... et dicunt quod diversis vicibus quibus predictus abbas nunc queritur etc. diuerse parcelle terrarum arabilium in hameletto predicto que tunc temporis warectare debuissent per predictum abbatem et alios seminate fuerunt per quod ipsi tam in parcellis illis sic seminatis que tunc temporis warectare debuerunt quam in aliis vastis, pratis et pascuis hameletti predicti in communa sua cum aueriis suis prout eis bene licuerit usi fuerunt ... et predictus abbas non cognoscit quod terre arabiles infra hamelettum predictum quolibet tercio anno debent warectari, immo protestando quod eedem terre per tres annos continuos debent seminari et quarto anno warectari.' the case is a rather complicated one, because the persons claiming common are not tenants of the abbot but of the king. still, their pretensions are grounded on the customary order of farming in a hamlet belonging to the manor of eynsham, and this is the point which concerns us. cf. coram rege, pascha, henry iii: 'abbas ... partitus fuit terras suas in tres partes quae antea partitae fuerunt in duas partes.' see also placit. abbrev. . the case is quoted by scrutton, common fields, . [ ] some of these expressions are interesting. _balk_ is the o.n. _bálkr_; _gora_ is the spear-head or its long triangular shape, o.e. _gár_, o.n. _geírr_. these linguistic affinities have been pointed out to me by mr. f. york powell. [ ] alvingham priory cart., laud mss. (bodleian), f. . cf. malmesbury cart. ii. ; madox, history of the exchequer, . [ ] eynsham cart., , a: 'i.i. virgatarius ... idem tenet unam selionem terre apud blakelond non mensuratam.' [ ] domesday of st. paul's, : 'laurencius de hospitale dimidiam virgatam pro denariis; tres acre quas tenuit laurencius sine servicio inveniri non possunt.' [ ] dunstable priory cart., harleian mss. , f. , d. see appendix xiii. [ ] elton, english historical review, i. . [ ] the expressions are not identical, but they ought both to correspond to the ploughteam. [ ] as to all this, see seebohm, village community. [ ] glastonbury inqu. (roxburghe ser.), . v. hide, virgate. [ ] eynsham cart., , a. [ ] domesday of st. paul's: 'manerium istud secundum dictum juratorum continet octo hidas, et hida continet sexcies viginti acras, set antiqua inquisicio dixit, quod non consuevit continere nisi quater viginti, quia postmodum exquisite sunt terre et mensuratae.' [ ] inqu. post mort. henry iii, n. : 'extensio de terris roberti de sancto georgio (in com. lincoln.) ... tenuit in capite de domino rege bovatas terre et dimidiam pro servicio sexte partis unius feodi militis.... et robertus de drayton tenet bovatas et quartam partem unius bovate terre de dicto roberto per forinsecum servicium tantum, unde carucate terre faciunt feodum militis.' [ ] rot. hundred. ii. , b: '... et ad dictam villam pertinent sex hide quarum quelibet continet virgatas terre et quelibet virgata continet acras.' ramsey survey, galba, e. x. : 'in una hydarum istarum ... septem virgatae acris minus.' eynsham cart., , a: 'et abbas habet in eodem manerio carucatas terre et continent virgatas terre in dominico et in villenagio virgatas terre.' [ ] ramsey cart. (rolls ser.), i. , , , , , , ; ely inqu., claudius, xi. , , , , , ; gloucester cart., iii. , , , ; coram rege, hill. edw. i, , b; eynsham cart., , a; , a; rot. hundr., ii. , b. [ ] chapter-house boxes, a. / , m. - . [ ] ramsey cart. (rolls ser.), i. : 'aliquando acre faciunt virgatam et aliquando pauciores.' [ ] rot. hundr., ii. , b. [ ] glastonbury inqu. (roxburghe ser.), : '... r. de w. unam virgatam pro solidis pro omni servicio quia terra parva est.' [ ] ibid., : 'super hanc virgatam terre fuerunt olim domus et pro duabus virgatis computata fuit terra illa, sed quia non potuerant homines ibi vivere, redacte ille virgate ad unam, et sicut audierant dicere solidi reddebantur, sed nunquam hoc viderunt et facit idem servitium quod alii faciunt virgarii.' [ ] o.c. pell in the transactions of the cambridge archaeological society, vi. sqq., sqq. [ ] ely inqu., claudius, c xi. , a. [ ] duchy of lancaster court rolls, b^{le} , n. ; , b. burton cartulary, transactions of the staffordshire william salt society, pp. , . [ ] ely inqu., , b. [ ] burton cart. (william salt ser.), , . compare peoples, ranks and laws, cap. (schmid, p. ). [ ] peterborough cart., cotton mss., faustina, b. iii. : 'libera wara est unus redditus et est talis condicionis quod si non solvatur ... dupplicabitur in crastino et sic in dies.' [ ] beaulieu cart., : 'et inveniet hominem ad gurgitem faciendum et waram.' [ ] rot. hundr., ii. : 'tenementum quod non est hidatum nec feodatum.' [ ] ramsey cart. (rolls ser.), i. : 'terrae de hulmo non sunt distinctae per hydas vel per virgatas.' : 'nescitur quot virgatae faciunt hidam, nec quot acrae faciunt virgatam.' cf. . glastonbury inqu. (roxburghe ser.), : '... nescit quantum amuntat in hida.' [ ] ramsey cart. i. : 'terrae quae sunt extra hydam et quae non dant hydagium.' : 'virgatam extra hydam firmarius appropriavit.' : 'ponere extra hydam.' [ ] ibid. : 'villata defendit, etc. versus regem pro hydis et versus abbatem pro hydis et dimidia.' [ ] ely inqu., cotton mss., claudius, c. xi. , b: 'plena terra que facit acras de ware.' [ ] st. alban's formulary, cambridge univ., e. e. iv. ; f. , a: 'item dicunt quod quando predictus robertus fuerit mortuus quod dominus habebit melius animal suum pro herieto et carettam suam ferro ligatam, omnes pullos suos, omnes porculos suos, omnes pannos suos laneos, omnia vasa sua argentea, aenea et ferrea. et quod filius suus postnatus habebit terram quam pater suus tenuit et dabit pro ingressu habendo tantum quantum unus alius extraneus et faciet eadem seruilia (sic) que et pater suus fecit.' ramsey cart., i. : 'erit dicta terra post mortem patris vel matris gersummata filio juniori vel propinquiori de sanguine secundum consuetudinem ville.' [ ] duchy of lancaster, b^{le} , n. , m. : 'siwardus cepit unam hidam cum dimidia virgata terre et illam tenuit usque ad obitum uxoris sue; postea venit idem siwardus et rogauit hugonem fratrem suum ut auderet remanere in terra patris sui prenominati, quia fuit sine terra. et idem hugo sibi concessit, saluo iure suo. item siwardus cepit uxorem ... de qua habuit robertum, radulfum et gunnildam. post obitum dicti siwardi venit rogerus qui fuit filius hugonis et exigebat terram prenominatam et per consideracionem curie fuit seisitus in predicta terra, set quia uxor dicti siwardi pauper fuit, consideratum sibi fuit ut haberet iv acras de predicta terra, quantum sibi custodiret. postea maritata fuit et revertebant predicte acre terre dicto rogero ut de jure suo pertinentes ad dictam virgatam terre.' cf q.r. misc. / . [ ] black book of st. augustine's, cotton mss., faustina, a. i. , a: 'in taneto sunt sullung acre reddentes gablum denariorum. in festo s^{ti} martini videlicet de unoquoque sullung reddunt de gabulo solidos denarios, summa quorum facit libras solidos denarios obolum. ipsi qui tenent predictos sullung reddunt in equinoctio autumpnae de unoquoque sullung pro horsarer den. et de acris den. ipsi idem arant pro anererthe in purificacione de unoquoque sullung unam acram et acris virgatas. ipsi idem reddunt in festo s^{ti} johannis de unoquoque sullung agnos separabiles et de acris agnum et valenciam dimidii agni. ipsi idem reddunt in natali de unoquoque sullung unum ferendel ordei,' etc. [ ] ibid. ; suolinga de ores: 'heredes salomonis de ores tenent acras ... heredes willelmi de ores tenent acras ... jacobus tenet acras et dimidiam perchatam ... thomas filius g. de hores tenet acras ... ricardus et salomon filius augustini ... et willelmus filius ricardi tenent acras et dimidiam,' etc. [ ] augment. off. misc. books, n. , f. , a: 'johannes bairot heredes hamoni daniel, heredes johannis hugheleyn, heredes roberti atte mede, heredes walteri et willelmi ram et gilbertus le rome tenent unum jugum et dimidium de cukulycumbe.' [ ] domesday of st paul's, sqq. comp. ramsey cart., i. . [ ] gloucester cart., iii. : 'robertus altegreue, willelmus godere, johannes abraham, isabella relicta lucae tenent unam virgatam, scilicet quilibet eorum unum quarterium et faciunt conjunctim in omnibus sicut unus virgatarius.' comp. . hereford court rolls (bodleian), , b: 't. hake, ricardus de poluchulle et muriel filius galfridi pyoner tenent unam dimidiam virgatam terre consuetudinarie.' [ ] bury st. edmund's cart., cambridge university, g. g. iv. . f. , a: 'johannes knop tenet cotagium et contribuit heredi qui tenet maiorem partem tenementorum.' [ ] inqu. post mort. henry iii, n. : 'redditarii qui vocantur selfoders.' [ ] exch. q.r. anc. misc. court rolls, xxi. . : 'dicunt quod aliquis habens virgatam terre et vendiderit omnes partes excepto capitati domo et loco focarii, tenentes locum focarii erunt sectatores curie et alteri non. similiter de tenentibus dimidiam virgatam et codsetlestoftes: semper tenentes locum focarii colligent firmam et erunt liberi de pannagio et de aliis tallagiis et alteri tenentes partes erunt geldabiles.' (curia de brigstock tenta die veneris proxima ante festum sancti andree apostoli anno [r. r. edw. xxvij]). [ ] see hanauer, les paysans de l'alsace au moyen age. [ ] domesday of st. paul's, xv. ; gloucester cartulary, iii. , ; cartulary of christ church, canterbury, add. mss. , f. , b. [ ] battle cart. augm. off. books, n. , f. , a: 'aratra uertuntur in terram domini.' ely inqu., claudius, c. xi. b, b, etc. [ ] ely inqu., b; comp. , b; gloucester cart., iii. . [ ] eynsham reg., , b: 'robertus tony tenet de domino unam virgatam terre in bondagium ... idem semel arabit cum vicino adiuncto.' ramsey cart., i. . comp. q.r. min. acc., b^{le} , n. : 'estimatur quod communiter tres custumarii possunt facere unam carucam (tenent acras).' [ ] rot. hundr., ii. , b: 'robertus de tony habet in villenagio scil. reginaldum toni qui tenet acras ... item si ipse habeat cum uno vel cum duobus sociis unam carucam, arabit unam selionem terre domini.' comp. , a. add. mss. , f. , b: 'w.j. tenet de domino in villenagio unum mesuagium et acras terre.... et arabit cum caruca sua sive jungat sive non acras.' [ ] black book of st. augustine's, . [ ] domesday of st. paul's, . [ ] augm. off. misc. books, n. , f. , b. see cartulary of battle abbey (camd. soc.), p. . [ ] ely inqu., , a: '... tenent dimidium tenmanland, scilicet acras terre ... al. et m. et eorum participes tenent unum tenmanland, scilicet acras terre.' the expression may be corrupted from t_u_nmanland, or else it may be a mark of a beginning of cultivation in danish times. [ ] chapter-house books, a. / , p. : 'custumarii tenent virgatas quas vocant wistas.' [ ] battle abbey cart., augment. off. misc. books, n. , f. , a; comp. , b. [ ] glastonbury inqu. (roxburghe ser.), , . [ ] worcester cart., , b. [ ] glastonbury inqu., , ; rot. hundr., ii. , b. [ ] gloucester cart., iii. . [ ] abingdon cart., ii. : 'in dominio camerae sunt hidae uno cotsettel minus.' [ ] glastonbury inqu., : 'robertus blundus tenet dimidiam virgatam eodem servicio. hec terra solet esse divisa in duo cotsetlanda, set in tempore werre deciderunt, eo ex his duabus terris facta fuit dimidia virgata. si esset divisa utilius esset domino.' [ ] domesday of st. paul's, ; ramsey cart. (rolls ser.), i. . [ ] gloucester cart., iii. . [ ] black book of st. augustine's, . [ ] ibid. [ ] domesday of st. paul's, . [ ] gloucester cart., ii. . [ ] exch. q.r. anc. misc., xxi. / (curia de brigstock, friday after annunciation, edw. i): 'ille due dimidie rode prati ... pertinent ad hakermannislond, et nemo potest habere seysinam predictarum sine breui domini regis.' [ ] glastonbury inqu., : 'in marisco acras terrae et quoddam molendinum, et octo deneratas terrae secus molendinum.' [ ] madox, exch., i. , n. : 'duodecim tamen nummatas quas ordurcus tenuit ... usque ad annos debemus tenere, singulis annis reddentes ei denarios ad festum s^{ti} michaelis.' [ ] eynsham cart. , c: 'est quoddam pratum nuncupatum clayhurste et continet de prato et pastura acras dimidiam rodam perticas. est ibidem ex parte australi una pecia prati et pasture et continet acras et perticas et nuncupatur twelueacres que annuatim diuiditur in parcellas per virgam equales, unde dominus habet uno anno i, iii, v, vii, ix et xi, heredes le freman et walterus le reue eodem anno habent parcellas ii, iv, vi, viii, x et xii. alio anno habet dominus parcellas quas tenentes habuerunt et tenentes parcellas domini. et sic annuatim habet dominus quinque acras, tres perticas et dimidiam perticam.' cf. , c: 'memorandum quod in prato de landemede sunt sex parcelle bundate quarum prima parcella nuncupata stubbefurlong continet acras et dimidiam rodam et est domini anno incarnacionis domini impari et tenencium anno incarnacionis domini pari. quandovero est tenencium, diuiditur per sortem.' [ ] a very good instance is supplied by williams, rights of common, , . cf. birkbeck, sketch of the distribution of land in england, . [ ] gloucester cart. iii. (extenta de berthona regis): 'de pastura separabili dicunt quod rex habet quandam moram quae continet - / acras et valet solidos et potest sustinere boves per nouem menses. item de pastura inseparabili dicunt quod abbas gloucestriae debet invenire pasturam ad boves domini regis, et ad vaccas, et afros, a vigilia pentecostes quousque prata sint falcata, levata et cariata.' exch. q.r. treas. of rec. / : 'item dicunt quod sunt ibi de pastura separabili acrae et valet acra d.' [ ] eynsham cart. , b: 'dicunt eciam quod omnia prata pasture domini et omnes culture non seminate et [que] deberent seminari sunt separalia per tempus predictum.' , b: 'et sunt dicte pasture separales quousque blada circumcrescentia asportentur.' a curious case is the following; ibid., , b: 'dicunt eciam quod dominus tenetur pratum suum de langenhurst custodire nec potest attachiare malefactores in eodem a solis ortu usque ad occasum, aliis temporibus ... licet, et est separale a festo annunciacionis beate marie usque gulam augusti.' [ ] domesday of st. paul's, : 'non est ibi certa pastura nisi quando terre dominice quiescunt alternatim inculte.' cf. : 'non est ibi pastura nisi cum quiescit dominicum per wainnagium ... possunt ibi esse sues cum uno verre et suis fetibus et vacce cum suis fetibus si quiescunt pasture dominice alternatim.' rot. hundr. ii. , b: 'item porci eius et aliorum vicinorum suorum pascent in campis dominicis extra tassum dum bladum domini stat in campis, et post bladum domini cariatum ibunt in campis per totum et omnes alie bestie ejus et aliorum vicinorum suorum pascent per totum in stipulo domini sine imparcamento.' [ ] glastonbury cart., wood mss. (bodleian), f. , b. cf. f. , : 'memorandum anni de amensuratione pasture ... dicunt precise quod ad quamlibet hidatam terre in eadem villa pertinent boues ad terram excolendam, vacce, averia, bidentes et porci ... ad unam virgatam terre pertinent boues, et vacce, et auerium, et porci et bidentes ad tantam terram colendam et sustinendam.' leigerbook of kirkham priory, yorkshire, fairfax mss. , f. a: 'amensuratio pasture de sexendale facta anno regni regis henrici filii regis iohannis ^{to} ... qui dicunt per sacramentum suum quod quelibet bouata terre in sexendale potest sustinere duo grossa animalia, oues cum sequela unius anni, duos porcos sine sequela et aucas cum sequela dimidii anni, et non amplius.' [ ] in a case of (note-book of bracton, ) it is complained,--'cum idem robertus non possit aliena aueria in pasturam illam recolligere, scil. hominum alterius religionis,' etc. [ ] note-book of bracton, pl. : 'dicunt eciam quod in manerio de billingiheie, sicut inquirere possunt, sunt carucate terre tam in certa terra quam in marisco predicto, scilicet sex carucate de certa terra et sex carucate in marisco, et in northkime sunt sex carucate terre et quatuor bouate tam in certa terra quam in marisco predicto, set nesciunt aliquam distinctionem quantum sit in certa terra et quantum in marisco nec aliquid inquirere potuerunt de metis infra mariscos illos.' [ ] note-book of bracton, pl. : 'robertus de spraxtona summonitus fuit ad warantizandum abbati de riuallibus acras terre et pasturam ad uaccas cum uno tauro et boues et oues cum pertinenciis in sproxtona que tenet et de eo tenere clamat, et unde cartam simonis de s. auunculi sui cuius heres ipse est habet,' etc. [ ] note-book of bracton, pl. : 'et saherus et matillis per attornatos suos ueniunt et dicunt quod semper, a conquestu anglie usque nunc communicauerunt cum eodem roberto et antecessoribus suis in locke, et idem robertus et antecessores semper communicauerunt in terris ipsorum s. et m. in gaham ... et unde dicunt quod si idem robertus uelit se retrahere de communa quam habet in terris ipsorum, ipsi nolunt se retrahere et dicunt quod semper communicauerunt horn underhorn ... et robertus uenit et dicit quod nec ipse nec antecessores unquam communam habuerunt in locke nisi post gwerram et per vim etc. scil. post gwerram motam inter regem s. et homines suos.' spelman renders the _horn unherhorn_ by 'horn with horn,' but the editor of bracton's note-book thinks, and i believe rightly, that the phrase means a common for all manner of horned beasts. brunner has translated it by 'gemeinschaftlich--durcheinander.' [ ] rot. hundr. ii. , e: 'in dicto manerio magnus boscus qui continet acras in quo quidem bosco homines propinquarum villarum ut wardeboys, wodehirst, woldhirst, s^{ti} ivonis, niddingworth et halliwell communicant omnes bestias suos pascendo cum sokna de sumersham.' note-book of bracton, : 'iuratores dicunt quod mora illa ampla est et magna et nesciunt aliquas divisas quantum pertinet ad unam uillam, quantum ad aliam.' in the case of forest land many villages enjoyed and still enjoy rights of intercommoning over a wide space. the case of epping is the familiar example. [ ] eynsham cart. , b: 'dicunt eciam quod dominus et villata de shyfford intercommunicant cum villatis de stanlake, brytlamptone et herdewyk a gula augusti usque festum s^{ti} martini, cum villatis vero de astone cote et elcforde a festo s^{ti} michaelis usque dictum festum s^{ti} martini.' [ ] note-book of bracton, pl. : 'et thomas venit et dicit quod nullam communam clamat in oure, set uerum uult dicere. certe diuise et mete continentur inter terram prioris de oure et terram ipsius thome de merkwrthe et quamdiu placuit eidem priori habere aesiam in terra ipsius thome in markwrthe habuit ipse thomas aesiam in terra ipsius prioris de oure, et si prior uult subtrahere se, ipse libenter subtrahet se.' [ ] the relation between this writ and the action 'quod reddat ei tantam pasturam' is well illustrated by a case of (note-book of bracton, pl. ): 'ricardus de willeye et iohanna de willeye summoniti fuerunt ad respondendum willelmo de kamuilla quo iure communam pasture exigunt in terra ipsius w. in arewe, desicut idem willelmus nullam communam habet in terris ipsorum ricardi et iohanne, nec ipsi ricardus et johanna seruicium faciunt quare communam habere debeant,' etc.... 'et quia willelmus cognoscit quod habet communam quantamcumque licet paruam, consideratum est quod nichil capiat per breue istud et sit in misericordia pro falso clamore et perquirat sibi per aliud breue sicut per breue quod reddat ei tantam pasturam,' etc. one may say that the _quo jure_ was an 'actio negatoria.' [ ] note-book of bracton, pl. : 'et quia simon non potest dedicere quin terra illa ubi communa est sit de feodo et una uilla, consideratum est quod ipsa communicet cum eodem simone in terra ipsius simonis,' etc. [ ] scrutton, commons and common fields, . [ ] page . [ ] bracton, f. , a: 'non debet dici communia quod quis habuerit in alieno ... cum tenementum non habeat ad quod possit communia pertinere, sed potius herbagium dici debet quam communia, cum hoc posset esse personale quid.' [ ] bracton, f. , b: 'item dicere potest quod nulla communia pertinet ad tale tenementum, quia illud fuit aliquando foresta, boscus, et locus vastae solitudinis et communia, et iam inde efficitur assartum, vel redactum est in culturam, et non debet communia pertinere ad communiam, et ubi omnes de patria solebant communicare.' [ ] bracton, f. , a: 'hoc non erit intelligendum quod omni tempore, nisi tantum temporibus competentibus, scilicet post blada asportata et fena levata, vel quando tenementum iacet incultum et ad waractum.' [ ] bracton, f. , b: 'item eodem modo si ita feoffatus fuerit quis, sine expressione numeri vel generis, sed ita, cum pastura quantum pertinet ad tantum tenementum in eadem villa, talem ligat constitutio sicut prius cum expressione: quia cum constet de quantitate tenementi, de facili perpendi poterit de numero aueriorum, et etiam de genere, _secundum consuetudinem locorum_.' [ ] scrutton, . [ ] cartulary of christ church, harl. mss. , p. : 'prior et conventus est capitalis dominus commune pasture de b.' [ ] ely cart., cotton mss. claudius, xi, f. iii, a: 'in l. debet villata communicare cum suis averiis propriis cum domino episcopo. et si dominus voluerit, ibidem possunt habere extranei bestias pro denariis. set inde habebunt liberi homines de w. quemlibet septimum denarium preter decimum.' [ ] registrum cellararii of bury st. edmunds, cambr. univ., gg. iv. , f. , b: 'et notandum quod inquisitio super calumpnia egidii de neketona clamantis quod abbas non haberet communam infra precinctum villate de bertone scribitur in forma (tali),' etc. [ ] cart. of christ church, canterbury, add. mss. , f. , b: 'sciendum quod dominus potest habere in communia pasture de bosco cum aisiamento friscorum et dominicorum domini tempore apto e bidentes per maius centum.' [ ] bracton, f. , b: 'inprimis videndum est qualiter constitutio illa sit intelligenda, ne male intellecta trahat utentes ad abusum ... non omnes nec in omnibus per constitutionem restringuntur, et ideo videndum erit utrum feoffati fuerint large, scilicet per totum, et ubique, et in omnibus locis, et ad omnia averia et sine numero ... tales non ligat constitutio memorata, quia feoffamentum non tollit licet tollat abusum.' [ ] note-book of bracton, . [ ] note-book of bracton, . the marginal note runs: 'nota quod nichil includi poterit de forestis et moris licet minimum quid et quamuis quaerens extra clausum habere possit ad sufficientiam.' and a little higher the decision is marked as 'contra constitutionem de merton.' [ ] see scrutton, , . [ ] bracton, f. , b: 'quia multi sunt magnates qui feoffauerunt milites et libere tenentes suos in maneriis suis de paruis tenementis, et qui impediti sunt per eosdem quod commodum suum facere non possunt de residuo maneriorum suorum.' reference may also be made to a note on a plea roll of (printed in l.q.r. iv. ), which shows that some years before the statute the magnates complained that they were prevented from assarting their pasture land by the claims of virgaters. [ ] this is directly stated by bracton, f. , b; vide supra. [ ] cartulary of christ church, canterbury, addit. mss. , f. , b: 'pastura ... de herbagiis cuiusdam vie inter curiam et ecclesiam de pritelwelle.' domesday of st. paul's, : 'nulla est ibi pastura nisi in boscis et viis.' [ ] rot. hundr. , b: 'et omnes libere tenentes ... communicant in bosco de a. cum omnibus bestiis suis libere per totum annum.' [ ] eynsham cart. , b: 'est ibidem unus boscus ... cuius valor non appreciatur pro eo quod minister regis non permittit includi si fiat copicium, sufficiens tamen est pro housebote et heybote.' gloucester cart. iii. : 'de boscis dicunt quod rex habet quandam costeram bosci de fago juvene quae continet ad aestimationem acras, unde rex poterit approbare per annum dimidiam marcam, scilicet in subbosco et virgis ad clausturam, et meremium ad carucas et alia facienda sine destructione, et ille boscus est communis omnibus vicinis in herbagio.' [ ] cart. of christ church, canterbury, add. mss. , f. , b: 'boscus ibi est cuius medietas est ecclesie et medietatem clamant tenentes illius denne, ut si dominus arborem unam accipiat, ipsi aliam accipient.' [ ] worcester cart. (camden ser.), , b: 'quaelibet virgata tenet feorthendels de bruera, et dimidia virgata feorthendel et dimidium.' [ ] for instance, madox, exch. , , n. : 'habebunt turbas sufficientes in predicta mora ad focalium fratrum ... secundum quantitatem terrarum suarum in eadem villa.' [ ] a very remarkable instance of the way in which rights of common were divided and arranged between lords and villains is afforded by the court rolls of brightwaltham. maitland, manorial rolls, selden soc. ii. . i shall have to discuss the case in the fifth chapter of this essay. [ ] domesday of st. paul's, : 'potest wainnagium fieri cum bobus et quatuor stottis cum consuetudinibus ville.' : 'item (juratores) dicunt quod potest fieri wainnagium totius dominici cum carucis bonis habentibus capita in jugo et herciatoribus cum consuetudinibus operariorum.' [ ] add. mss. , f. , a: '(leyesdon) ... debet quelibet caruca coniuncta arrare unam acram et habebunt denarios pro acra et quadrantem.' [ ] glastonbury inqu. of (roxburghe ser.), : '(virgatarius) a festo s^{ti} michaelis qualibet ebdomada arat unam acram donec tota terra domini sit culta.' [ ] ely inqu., cotton mss. claudius, c. xi. f. : 'unusquisque arabit per tres dies, si habeat sex boves; per duos, si habeat quatuor boves; per unum, si habeat duos boves; per dimidium, si habeat unum bovem.' [ ] add. mss. , f. , a: 'item debent predicte virgate terre arrare ad frumentum, ad auenam et ad warectum acras et valent solidos denarios.' [ ] gloucester cart. iii. : 'et quicquid araverit debet herciare tempore seminis. et faciet unam hersuram que vocatur landegginge et valet den.' iii. : 'et debet herciare quotidie si necesse fuerit quousque semen domini seminetur, et allocabitur ei pro operacione manuali, et valet ultra obolum. et quia non est numerus certus de diebus herciandis, aestimant juratores dies.' [ ] ramsey cart. i. : 'qualibet autem septimana, a festo s^{ti} michaelis usque ad tempus sarclationis tribus diebus operatur, quodcunque opus sibi fuerit injunctum; et quarto die arabit unum sellionem, sive jungatur cum alio, sive non.' [ ] glastonbury inqu. of , p. : 'a die circumcisionis similiter, excepta ebdomada pasche, si possit per gelu, et si gelu durat per dies, quietus debet esse. si amplius durat, restituet araturam.' [ ] add. mss. , f. , b: 'idem tenentes de predictis et dimidia (terris) debent arrare ad seysonam frumenti acras de gable et de qualibet terra acras.' , b: '_gauilherth_: willelmus de bergate debet arrare dimidiam acram; nicholaus de jonebrigge et socii ejus unam virgam; heredes johannis pedes; ricardus cutte pedes ... summa acrarum acre pes. hec debent arrare et seminare.' [ ] rot hundred, ii. , b: 'item si habeat carucam integram vel cum sociis conjunctam, illa caruca arabit domino acras terre ad yvernagium et herciabit quantum illa caruca araverit in die, et istud servicium appellatur greserthe, pro quo servicio ipse w. et omnes alii consuetudinarii habebunt pasturas dominicas ad diem (_sic. corr._ a die) ad vincula s^{ti} petri usque ad festum beate marie in marcio et prata dominica postquam fenum fuerit cariatum.' [ ] glastonbury cart., wood mss. , f. , b: 'tenens dimidiam hidam habet animalia in pascius quieta, et si plus habuerit--arabit et herciabit pro unoquoque dimidiam acram.' [ ] add. mss. , f. , b: 'de qualibet caruca arant unam acram de averherde; et si per negligenciam alicujus remanserit acra non arata, tunc mittet dominus semen quod sufficiat ad unam acram ad domum illius et oportebit illum reddere bladum ad mensuram propinque acre et habebit tum herbagium de acra assignata.' cart. of beaulieu, cotton mss. nero, a. xii, f. , b: 'et si habeat bovem vel vaccam iunctam, arabit pro quolibet virgo dimidiam acram ad festum s^{ti} martini sine cibo.' glastonbury inqu. of , f. : 'de qualibet carruca debent arare ad seminandum acras, et ad warectum acras, ut boves possint ire cum bobus domini in pastura.' [ ] exch. q.r. min. acc. bk. ; t.g. , : '(extenta manerii de burgo) medwelond ... debent arare tantam terram quantum habent de prato.' [ ] exch. q.r. min. acc. bk. , : 'beinerth: custumarii arabunt acras terre ad semen yemale. grasherthe: arabunt cum quanto iungunt per unum diem ad semen yemale.' ely inqu., cotton mss. claudius, c. xi. f. , a: 'arabit de beneerthe si habeat carucam integram rodas, et si iungat cum aliis ipse et ille cum quo iungit assidue arabunt rodas.' domesday of st. paul's, : 'et ad precariam carucarum arabit unam rodam scil. quartam partem acre sine cibo.' glastonbury inqu. of , p. : 'r. de wttone tenet dimidiam hidam pro una marca et debet habere ad preces per annum homines et bis arare ad preces.' [ ] gloucester cart. iii. : 'johannes barefoth tenet dimidiam virgatam terre continentem acras ... et debet arare qualibet secunda septimana a festo s^{ti} michaelis usque ad festum beati petri ad vincula uno die ... et praeterea debet quater arare in terra domini, et vocantur ille arurae unlawenherþe.' black book of st augustine's, cotton mss. faustina, a. i. f. : '... arare acras ad frumentum de godlesebene.' [ ] ely inqu., cotton mss. claudius, c. xi, f. , a: 'preterea idem arabit de lentenerþe dimidiam acram.' [ ] ibid., , b: 'item iste cum quanto iungit arabit de filstnerthe eodem tempore (ante natale) per unum diem ... item arabit in quadragesima tres acras et rodas et araturam de filsingerhe (_sic_). item arabit in estate acras et de beneerthe rodas ut in hyeme, set nihil arabit de filsingerþe.' [ ] ibid., , a: 'item per idem tempus arabit (ante natale) dimidiam acram pro fastningsede sine cibo et opere si habeat carucam integram. et si iungat cum aliis, tunc iste et socenarii sui cum quibus iunget arabunt tantum et non amplius.' [ ] custumal of bleadon, . [ ] gloucester cart. ii. : 'et facit unam aruram que vocatur peniherþe et valet tres denarii, quia recipiet de bursa domini quartum denarium.' cf. ii. : 'et praeterea faciet unam aruram que vocatur yove (yoke?), scil. arabit dimidiam acram, et recipiet de bursa domini unum denarium obolum, et valet ultra unum denarium obolum.' [ ] gloucester cart. iii. : '(dimidius virgatarius) debet unam aruram que vocatur radaker, scil. arare unam acram ad semen yemale, et triturare semen ad eamdem acram, scil. duos bussellos frumenti.' on iii. we have another reading for the same thing: 'et arabit unam acram quae vocatur eadacre et [debet] triturare semen ad eamdem acram, et valet arura cum trituracione seminis denarios.' what is the right term?--ely inqu., cotton mss. claudius, c. xi. f. , a: 'et arabit qualibet die a festo s^{ti} michaelis usque ad gulam augusti dimidiam rodam, que faciunt per totum quinque acras.... et praeterea arabit unam rodam de rytnesse.' [ ] add. mss. , f. , b: 'item tota villata de bocayng debet falcare acras prati et dimidiam, et valet solidos.' [ ] domesday of st. paul's, : 'et preter hec unaquaque domus hide debet metere dimidias acras avene et colligere unum sellionem fabarum.' [ ] gloucester cart. iii. , : 'ricardus bissop tenet unum messuagium et acras terre ... (operabitur) in messe domini cum hominibus.' [ ] eynsham cart. , b: 'idem metet dimidiam acram bladi domini sine cibo domini et valet opus denarios et vocatur la bene. idem faciet cum uno homine beripam sine cibo domini et vocatur mederipe, et valet opus den.... idem veniet ad magnam bederipam domini ad cibum domini cum omnibus famulis suis et ipse supervidebit operari in propria persona sua. quod si famulos non habuerit, tunc operabitur in propria (persona).' [ ] ramsey cart. i. : 'quaelibet domus habens ostium apertum versus vicum tam de malmannis quam de cotmannis et operariis inveniet unum hominem ad louebone.' [ ] ely inqu., cotton mss. claudius, c. xi. f. , b: 'ad precariam ceruisie inveniet omnem familiam preter uxorem domus et filiam maritabilem.... quod si voluerint metere propria blada metent in suis croftis et non alibi.' [ ] domesday of st. paul's, , : 'et falcare dimidiam acram sumptibus suis et postmodum falcare cum tota villata pratum domini ita quod totum sit falcatum, et qualibet falx habebit unum panem ... et ad siccas precarias in autumpno inveniet unum hominem, et ad precarios ceruisie veniet cum quot hominibus habuerit ad cibum domini.' cf. . [ ] cart. of battle, augment. off. misc. books, n. , f. , a: 'quilibet virgarius ... debet invenire ad quemlibet precarium autumpnalem ad metendum homines et habebunt singuli singulos panes ponderis librarum cere et duo unum ferchulum carnis precii unius denarii, si sit dies carnis et potagium ad primum precarium. ad secundum uero erit panis medietas de frumento et medietas ordei et cetera alia ut supra. ad terciam precariam erit panis totus de frumento et cetera ut prenotatur. ad quartam precariam quod vocatur hungerbedrip quilibet de tenentibus domini preter henricum de chaus inveniet unum hominem ad metendum et habebunt semel in die cibum, scil. panem et potum et unum ferculum secundum quod serviens illius loci providere placuerit, et caseum.' [ ] ely inqu., cotton mss. claudius, c. xi. , b: 'metet dimidiam acram que vocatur þanc alfaker.' the name may possibly mean, that the peasant earned the gratitude of the lord by ploughing the half-acre. this construction would be supported by other instances of 'sentimental' terminology. cf. warwickshire hundr. roll, q.r. misc. books, n. , f. , b: 'love-bene.' cartul. of okeburn, al. prior. / , : 'post precarias consuetudinarias debet de gratia, ut dicitur, quocienscumque precatus fuerit, (operare) per unum hominem.' roch. custum., ed. thorp, , b: 'et pro prato de dodecote falcando, pro amore, non pro debito, habebunt unum multonem et unum caseum de d.' [ ] gloucester cart. i. : 'idem thomas cum virga sua debet interesse operationibus quo ad metebederipas.' [ ] glastonbury inqu. of , p. : 'editha tenet unam mesuagium et unam croftam pro d. et fert aquam falcatoribus.' [ ] add. mss. , f. , a: 'item sunt in dicto manerio virgate et debent invenire in proxima septimana post festum s^{ti} michaeli, per unum diem a mane usque ad horam meridianam carecta, ad fima domini cariandum.' domesday of st. paul's, : 'quod si boves non habuerit vel alia animalia ad arandum faciet aliud opus quod jussum fuerit et educet plaustra de fimo post pascha et habebit dignerium de domino et infra hundredum portabit unum plaustrum vel duas carectatas.' [ ] ely inqu., cotton mss. claudius c. xi. , b: 'averagium secundum turnum vicinorum suorum curtum et longum.' [ ] domesday of st. paul's, : 'rogerus dives ... cum villata ad firmam portandam londinium facit quantum requiritur de acris.' glastonbury inqu. of , f. : 'quater faciet summagium apud bristolliam.' domesday of st. paul's, : 'preterea debet hida portare summagia et dimidiam per totum ab horreo domini usque ad navem ter in anno divisim.' [ ] add. mss. , f. , a: 'item de predictis cotariis unusquisque habet unum horsacram et de ista acra debet unusquisque invenire unum equum ad ducendum cum aliis frumentum de firma ad cantuariam, et pisas, et sal, et presencia portare.' [ ] black book of st. augustine's, cotton mss. faustina, a. , f. : 'nihil debent averare ad tunc, nisi res que sunt ad opus conventus et que poni debent super ignem.' [ ] glastonbury inqu. of , f. : 'w. sp. tenet unum fordil pro den. et operatur quolibet die lune per totum annum et (debet) ladiare cum alio ferdilario sicut dimidii virgatarii.' domesday of st. paul's, : 'omnes isti (cotarii) debent operari semel ... debent eciam portare et chariare.' [ ] rot. hundr. ii. , b: 'et faciet averagium super dorsum suum ad voluntatem domini.' [ ] glastonbury inqu. of , f. : 'portat et fugat aucas, et gallinas, et porcos glastonie.' domesday of st. paul's, : '(cotarii) isti debent singulis diebus lune unam operacionem et portare et fugare porcos londoniam.' [ ] gloucester cart. iii. : 'item, quod nullus prepositus aliquid ab aliquo recipiat, ut ipsum ad firmam esse permittat vel ad levem ponat operationem mutando cariagia summagia debita in operibus manualibus.' [ ] see, for instance, glastonbury inqu. of , pp. , ; gloucester cart. iii. ; domesday of st. paul's, . [ ] cart. of bury st. edmunds, harl. mss. , f. : '(debet) metere pro porcis quilibet dimidiam acram siliginis.' [ ] black book of st. augustine's, cotton mss. faustina, a. , f. : 'aratum hominum de n.' cartul. of battle, augm. off. miscell. books, n. , f. , a: 'forinseca servicia ... arant ... seminant.' [ ] domesday of st. paul's, : '... et furem captum in curia custodiet et iudicatum suspendet et sparget fimum ad cibum domini.' ibid. : 'g.g. tenet acras ... (debet) qualibet septimana opera et sequitur precarias in autumpno ... r.h. acras per idem servicium et preterea defendit eas versus regem.' [ ] gloucester cart. iii. : 'debet a festo s^{ti} michaelis usque ad festum s^{ti} petri ad vincula qualibet septimana per dies operari opus manuale cum uno homine, et valet quolibet dieta obolum.' glastonbury inqu. : 'si est ad opus a festo s^{ti} petri ad vincula usque ad festum s^{ti} michaelis nisi festum intercurrat qualibet die faciet unam dainam.' [ ] add. mss. , f. , a; , b. [ ] domesday of st. paul's, : 'singule virgate debent per annum ... de gavelsed mensuras quarum faciunt mensuram de colcester.' black book of st. augustine's, cotton mss., faustina, a. i, , d: 'sunt praeterea sullungi et acre in eadem hamiletto qui debent bladum de gabulo.' [ ] domesday of st. paul's, : 'et unum quarterium de auena ad foddercorn.' [ ] add. mss. , , b: 'et de gadercorn reddunt de quolibet swlinge coppas de puro ordeo et de presenti gallum et gallinam de qualibet domo ... quas serviens curie debet circumeundo querere.' [ ] ely inqu., cotton mss., claudius, c. xi. , b; bury st. edmunds cart., harl. mss. , f. , b. [ ] glastonbury inqu. of , p. (cf. ): 'henricus wlde tenet acras de prato pro stacha mellis. utilius quod esset in manu domini.' gloucester cart. ii. : 'honilond t.t. tenet acras terre pro lagenis mellis vel pretio.' [ ] ramsey cart. i. : 'faciet etiam unam mutam (leg. mittam) et dimidiam braesii, quam recipiet in curia pro voluntate sua bene mundatam, et per se ipsum, et illam carriabit apud rameseiam. quae si refutetur, defectum ejus propriis sumptibus in omnibus supplebit, nisi mensura sibi tradita sit minor.' [ ] add. mss. , f. , b: 'de quolibet swlinge duos agnos reddunt in estate. ita quidem quod serviens curie, si invenerit agnum in sulungis illis qui ei placuerit, accipiat eum cuiuscumque sit, et ille ad quem pertinebit adquietacionem. quod si agnus inventus non fuerit den. dabit quando mala persolvat.' [ ] gloucester cart. iii. : 'walterus fremon tenet acras terrae cum mesuagio et reddit inde per annum die apostolorum petri et pauli unum multonem pretii den. vel ultra, cum den. circa collum suum ligatis.' [ ] exch. q.r. treas. of rec. : 'capones ... pro warentia.' [ ] gloucester cart. iii. : 'propter illam gallinam conquererunt habere de bosco domini regis unam summam bosci, quae vocatur dayesen.' exch. q.r. min. acc. bk. , n. : 'wodehennus ... ad natale.' suffolk rolls (bodleian), : 'dicet curia quod r. debet facere domino sicut alii custumarii, scil. oues et gallinas, quia fodit etsi non pascat.' ely inqu., cotton mss., claudius, c. xi, f. , a: 'redditus caponum per annum pro aueriis tenmino pasche.' [ ] domesday of st. paul's, : 'et ad pascha ova ad libitum tenencium et ad honorem domini.' [ ] glastonbury inqu. of , p. : 'hoc est accrementum redditus tempore roberti; ordricus pro retiis terre altero anno soccum.' gloucester cart. iii. : 'walterus de hale tenet unam acram terre et reddit inde per annum unum vomerem ad festum s^{ti} michaelis pretii den. pro omni servitio.' [ ] warwickshire hundr. roll, exch. q.r. misc. books, n. , f. , a: 'per servicium unius radicis gyngibrii ... unius rose.' [ ] gloucester cart. iii. : 'omnes praedicti consuetudinarii ... debent cariare molas, scil. petras molares ad molendinum domini, vel dabunt in communi den. quadrantem.' rot. hundr. ii. , b: 'et modo eorum servicia convertuntur in denariis.' [ ] add. mss. , f. , a: 'barlicksilver. item debet willelmus de b. per annum quarteria ordei et quarteria auene,' etc. [ ] roch. custum. , a: 'dabunt eciam denarium pro falce quod anglice dicunt sithpeni.' glastonbury inqu. of , p. : 'et dabit stacas et dimidiam frumenti ad consuetudinem et eadem die denarium illi qui colligit fualia.' ely reg., cotton mss., claudius, c. xi. f. , b: 'de bosingsiluer denarium ad festum s^{ti} martini si habeat equum et carectam.' [ ] add. charters, , : '(stephanus) retraxit et abduxit porcos suos tempore pannagii.' [ ] rot. hundr. ii. , a: 'memorandum quod omnes isti prenominati tam liberi quam villani qui habent bestias precii den. dant domino predicto per annum den. pro quadam consuetudine que vocatur wartpenny.' [ ] what may be, for instance, the explanation of the _huntenegild_, which not unfrequently appears in the records. e.g. gloucester cart. iii. : 'johannes carpentarius et relicta kammock tenent dimidiam virgatam terrae et faciunt idem quod praescripti, exceptis huntenesilver et gallina.' add. mss. , f. , a: 'ricardus atte mere tenet de domino in villenagio acras terre; reddit inde per annum de unthield ad festum purificacionis sol. den. ob. et ad pascham d. et ad festum s^{ti} michaelis denarios.' the payment is a very important one and hardly connected with hunting. [ ] domesday of st. paul's, (inqu. of ): 'keneswetha ... summa denariorum libre et sol. et obolus.' cf. xx. [ ] battle cart., augment. off. misc. books, n. , f. , a: 'juga que sunt in sex libris in wy.' [ ] christ church reg., harl. mss. , f. : 'newerentes.' [ ] domesday of st. paul's, : 'inferius notati tenentes terras dant landgablum. et si habent uxores denarios de havedsot quia capiunt super dominium boscum et aquam et habent exitum, et si non habent uxorem vel uxor virum, dabit unum denarium. galfridus filius ailwardi pro terra quondam theodori cui non attinet denarios landgabuli.' ramsey inqu., cotton mss., galba e. x. f. , b: 's. de w. dat pro terra sua denarios et denarios pro se et uxore sua.' exch. q.r. min. acc. bk. , t.p.r. : 'denarii ... ad existendum in warentia.' [ ] archaeologia, xlvii. : '(soke of rothley) gildi hoc est quietum de consuetudinibus servilibus quae quondam dare consueverint sicuti hornchild et hiis similibus.' [ ] glastonbury inqu. of , p. : '... unam virgatam et dimidiam et acras pro solidis de gabulo et denariis de dono.' [ ] glastonbury inqu. of , p. : 'omnes simul dant de dono solidos secundum terras quas tenent.' ibid. : 'debet dare de dono quantum pertinet de quinque libris.' ramsey cart. i. : 'de denariis qui vocantur solidi dat dimidius virgatarius denarios.' [ ] ramsey cart. i. : 'villa dat solidos, qui dantur quod cum aliquis in misericordia domini, det ante judicium sex denarios, et post, si expectet judicium, duodecim denarios, nisi sit pro furto, vel aliqua maxima transgressione.' [ ] gloucester cart. iii. : 'dicta terra consuevit dare de auxilio denarios et obolum qui modo allocantur consuetudinario in solutione octo marcarum.' [ ] exch. q.r. treas. rec. / : 'item debent domino ad festum s^{ti} michaelis auxilium ad placitum suum et ad forinsecum servitium.' [ ] gloucester cart. iii. : 'et dabit pro terra denarios ad auxilium. dabit etiam auxilium pro averiis suis secundum numerum eorundem.' iii. : 'et dabit auxilium secundum numerum animalium.' iii. : 'et si impositum fuerit eidem quod in taxatione auxilii aliquod animal concelaverit, potest cogi ad sacramentum praestandum et se super hoc purgandum. et si per vicinos suos convictus fuerit super hoc, puniendus est pro voluntate domini.' [ ] gloucester cart. iii. : '... omnes isti consuetudinarii de colne dant in communi ad auxilium solidos denarios.' rochester custumal, , a: 'de omnibus decem jugis debent scotare ad donum domini ville et ad servicium domini regis.' [ ] domesday of st. paul's, : 'dicunt quod manerium de berlinge defendit se versus regem pro duabus hidis et dimidia ... reddunt ... pro hidagio baillivo hundredi de reilee denarios et denarios de wardpeni, de quibus dominicum reddit de acris den. et obolem pro hidagio et denarios pro wardpeni.' [ ] exch. esch. ultra trentam, / : 'pro cornagio de feodis militum sol. den.' [ ] glastonbury inqu. of , p. : 'in die s^{ti} martini debet dimidiam dainam frumenti de cheriset.' [ ] domesday of st. paul's, : 'beatrix relicta osberti casse tenet acras et a festo s^{ti} michaelis usque ad vincula qualibet septimana debet operaciones nisi festum impedierit; quod si festum feriabile evenerit in septimana die lune et aliud die mercurii, unum festum erit ei utile, aliud domino. quod si festum evenerit eadem septimana die veneris, addito alio festo in alia septimana veniente, dividentur illi duo dies inter dominum et operarium ut supradictum est.' [ ] glastonbury inqu. of , p. : 'a festo s^{ti} petri ad vincula debent qualibet ebdomada metere uel aliud opus facere usque ad festum s^{ti} michaelis nisi festum intercurrat, die lune, die martis et die mercurii.' ibid. : 'ab hoccadei usque ad festum s^{ti} johannis qualibet ebdomada arabit dimidiam acram, si possit propter duritiem.' [ ] glastonbury inqu. of , p. : 'willelmus filius osanore (tenet) unam virgatam eodem servitio, sed non potest perficere servitium.' [ ] domesday of st. paul's, : 'et omnes alii similiter operabuntur sive plus teneant sive minus, pro racione acrarum.' glastonbury inqu. of , p. : 'w. de h. tenet unam virgatam pro dimidia virgata ... pro alia virgata facit sicut pro quarta parte dimidie hide.' [ ] gloucester cart. iii. : 'et sciendum quod dominus potest eligere utrum voluerit habere servitium predictum de johanne spere, uel quod duplicet servitium r. de a. inferius inter akermannos scripti.' [ ] rot. hundr. ii. , a: 'set isti tenentes memorati ut asserunt ad alias consuetudines et servitia antiquitus esse consueverunt.' [ ] e.g. a comparison of the inquests contained in the ramsey cartulary published in the rolls series with the earlier extents contained in cotton ms., galba, e. x, and with the hundred rolls of huntingdonshire and cambridgeshire, will support the opinion expressed in the text. [ ] seebohm, village community. [ ] the meaning of the expression may be gathered from the following extracts from the ramsey cartulary, i. : 'die autem jovis proxima ante pascha et die jovis contra festum s^{ti} benedicti quodcunque opus sibi fuerit injunctum operabitur.' cf. : 'et si opus fuerit, faciet hayam in campis, habentem longitudinem duarum perticarum, et allocabitur ei pro opere unius diei. et die quo carriare fenum debet, ducet unam carrectatam domi de alio feno abbatis, uel aliud carriagium cum carrecta faciet, si sibi fuerit injunctum.' : 'a gula autem augusti usque ad festum sancti michaelis qualibet septimana operabitur per unum diem integrum, qualecunque opus sibi praecipiatur.' : 'et operatur quaelibet virgata a festo sancti michaelis usque ad festum translationis sancti benedicti qualibet septimana tribus diebus ... _quodcumque opus praeceptum fuerit_; videlicet, si flagellare oportet, flagellabit infra villam viginti quatuor garbas de frumento et siligini, de hordeo triginta garbas, de avena triginta garbas. extra villam flagellabit de frumento viginti garbas, de avena viginti quatuor garbas. nec exibit extra hundredum ad flagellandum _nisi ex gratia_. quodcunque _aliud genus operis facere_ debeat, operabitur tota die si ballivus voluerit; praeterquam in bosco, ubi si secare debeat, operabitur usque ad nonam; et si pascere eum dominus voluerit, operabitur usque ad vesperam. si debeat spinas vel virgas colligere, colliget unum fesciculum, et portabit usque ad curiam pro opere unius diei. in quadragesima autem nullum genus operis faciet ad cibum proprium usque nonam nisi quod herciabit tota die.' it seems quite clear that the lord has in some cases the choice between different kinds of work, but the amount to be required is settled once for all. when we find in the glastonbury inquisition of the sentence, 'operabitur quodcumque ei praeceptum fuerit sicut neth,' it means evident, that the peasant's work, whatever it is, is settled according to the standard of the neat's holding. [ ] glastonbury inqu. of , p. : 'et herciat semel sine mensura aliqua ei assignata cum hoc quod habet in carruca.' [ ] placitorum abbreviatio, p. : 'alia carta eiusdem eidem elie facta et heredibus suis de dicta bovata terre una cum dicto rogero villano suo et secta et sequela sua.' ramsey cart. i. : 'prior de sancto ivone habet ingressum in una virgata terrae per henricum de kylevile, in qua tres sunt mansiones, et unus pro caeteris facit servitium debitum manerio.' [ ] ramsey inqu., cotton mss., galba, e. x. f. : 'quicumque acceperit pro mercede sua denarios debet operari cum domino suo tribus diebus vel dare unum denarium.' cf. rot. hundr. ii. , b: '_servi_: dabit ad exennium contra natale panes ... et venit ad prandium domini pro predicto exennio sexta manu si voluerit.' [ ] cotton mss., galba, e. x. f. . see appendix xiv. [ ] domesday of st. paul's, hale's introduction, pp. xxxviii, xxxix. [ ] gesta abbatum (rolls ser.), . cf. glastonbury inqu. of , p. . [ ] see, for instance, the beginning of the description of dorsetshire. [ ] exch. q.r. min. acc. bk. , t.p.r. : 'sciendum quod tenentes abbatis de osoluestone in donington et byker cum pertinentiis fuerunt semel in anno pro voluntate abbatis ad curiam suam tenendum ibidem et invenient eidem abbati et toti familie sue quam secum duxerit omnia necessaria sufficientia in adventu suo per unum diem integrum et noctem sequentem, vel noctem precedentem et diem sequentem in esculentis et poculentis tam vino quam cervisia, feno et prebenda pro equis eorum et equis carucariorum salem querencium, una cum candela et ceteris costis omnimodis inter necessaria computandis. et si abbas non venerit facient finem cum celerario si voluerit vel cum alii quem abbas nomine suo miserit ad minus solidis. et si is qui nomine abbatis missus ibidem fuit et finem recusauit, procurabitur ut premittitur. et si aliquid de necessariis in administrando defuerit, omnes tenentes qui comestum contribuere debent die crastino in plena curia super necessariorum defectu per senescallum calumpniabuntur et graviter amerciabuntur. et talis fuit consuetudo ab antiquo et habetur quolibet anno pro certo redditu, et de quo petrus de thedingworth quondam abbas de osoluestone et predecessores sui a tempore quo non extat memoria sub forma predicta fuerunt seisiti.' [ ] see about this point, hale's introduction. it is generally very good on the subject of the farm. [ ] domesday of st. paul's, : 'potest wainagium fieri cum tribus caruciis octo capitum cum consuetudinibus villate.' [ ] the templar's book of at the record office (q.r. misc. books, n. ) is already a rental in substance. [ ] glastonbury inqu. of , p. : 'nigellus capellanus tenet unam virgatam, sed illa virgata non solet ad operacionem redigi. cum dominus voluerit operabitur sicut alie.' rot. hundr. ii. , a: '... dabit solidos per annum pro operibus suis qui solidi poterunt mutari in aliud servicium ad valorem pro voluntate domini.' [ ] glastonbury inqu. of , p. : 'g. de p. (tenet) unum mesuagium et tres acras et dimidiam pro solidis et facit sicut homines de mera quando sunt ad gabulum. hoc tenementum non solet esse ad opus.' : 'leviva vidua tenet dimidiam hidam; unam virgatam tenet eodem servitio; aliam tenet pro gabulo et non potest ad operationem poni sicut alia.' [ ] bury st. edmund's reg., harl. mss. , f. , d: 'omnes liberi et non liberi dabunt festivales exceptis illis liberis qui habent residentes sub illos.' glastonbury cart., wood mss. i. f. , b: 'abbas et conventus remiserunt r. de w. ... omnia carriagia ... nec non et illas custodias quae predictus r. et antecessores sui personaliter facere consueverunt cum virga sua super bederipas ipsorum ... et super arruras precarias que ei fieri debent in manerio de pultone.' [ ] custumals of battle abbey (camd. soc), p. . [ ] black book of peterborough (camden ser.), : 'in scotere et scaletoys sunt undecim carrucatae ad geldum regis et plenarii villani ... plenarii villani operantur duobus diebus in ebdomada ... et ibi sunt sochemanni et operantur uno die in ebdomada per totum annum et in augusto duobus diebus. et isti villani et omnes sochemanni habent carrucas et omnes arant una vice ad hyvernage et una ad tremeis.' [ ] bracton, iv. . , f. : 'est autem dominicum quod quis habet ad mensam suam et proprie, sicut sunt bordlands anglice.' [ ] madox, history of the exchequer, i. : 'concessisse unam virgatam terrae in husfelds, scilicet acras uno anno et acras alio.' [ ] in beauchamp, a manor of st. paul's, london, the home farm is one of the largest. domesday of st. paul's, : 'in dominico tam de wainagio veteri quam de novo essarto acre terre arabilis et de prato acre et de pastura acras [_sic_] et in magno bosco bene vestito quinquies acre et in duabus granis dorile et langele acras.' [ ] as to the economic aspects of the subject, see thorold rogers, history of agriculture and prices; ashley, introduction to the study of economic history; and cunningham, growth of industry and commerce ( nd ed.). [ ] harl. mss. , f. . [ ] ramsey cart. (rolls series), i. : 'quae culturae coli possunt sufficienter cum tribus carucis propriis et consuetudine carrucarum ville et duabus precariis carucis (corr. carucarum?), quae consuetudo ad valentiam trium carucarum aestimatur.' domesday of st. paul's, , : 'potest ibidem fieri wainagium cum carucis quarum tres habent boves et equos et due singule equos cum consuetudinibus villate propter (corr. praeter?) dominicum de luffehale et alia quae remota sunt, que tamen sunt in dispositione firmarii.' cf. glastonbury inqu. of , pp. , . [ ] as an instance, bury st. edmund's register, harl. mss. , f. : '(bucham) abbas s^{ti} edmundi capitalis dominus ... tenet in eadem villa preter homagium liberorum nihil.' [ ] domesday of st. paul's, . [ ] eynsham inqu., chapter of christ church, oxford, n. , f. , a: 'robertus clement ... tenet de dominicis superius mensuratis dum domino placet unam selionem apud weylond atte wyche, unam selionem apud blechemanfurlong, tres seliones in wellefurlong, et unam selionem apud groueacres pro solidis per annum.' [ ] it is well known that the second book of fleta contains a sketch of the functions of manorial officers. in thirteenth-century mss. we find also a special tract on the matter entitled de senescalcia. see cunningham, growth of industry and commerce ( nd ed.), p. . let it be understood that i do not attempt an exhaustive survey of the subject, but only a general indication of its bearings. [ ] domesday of st. paul's, ; forms of agreement by which the manors were let to farm in the twelfth century: 'haec est conventio inter capitulum lundoniensis ecclesiae beati pauli et robertum filium alwini sacerdotis. capitulum concedit ei wicham manerium suum ad firmam quamdiu vixerit et inde bene servierit. primo quidem anno pro solidis et _d._ et pro una parva firma panis et cervisiae cum denariis elemosine. deinceps vero singulis annis pro duabus firmis brevibus panis et cervisiae.' [ ] exch. q.r. miscell.: 'consuetudines de aysle: memorandum quod homagium debet eligere prepositum et dominus manerii potest eum retinere.... et memorandum quod homines debent habere pastorem ovilis per electionem curie.' [ ] the duty of serving as reeve is therefore often treated as one of the characteristic marks of serfdom; e.g. cambr. univ., gg. iv. , f. . [ ] harl. mss. , f. : 'debet esse messor ad frumentum et amerciamenta domini colligendum.' [ ] shaftesbury inqu., harl. mss. , f. : 'arator ... debet invenire omnia instrumenta aratri ante rotas.' [ ] ibid., f. : 'bubulci et gadince.' glastonbury inqu. of : 'petras bovarius ... custodit boves domini et vadit ad aratrum.' [ ] 'hereward,' glastonbury inqu., , , etc.; domesday of st. paul's, . [ ] cartul. of battle (camden ser.), f. , b: 'wodeward.' [ ] bury st. edmund's reg., cambr. univ., gg. iv. , f. , a: 'ad istud pertinet tenementum falcacio claustri sed cum falce lurardi.' [ ] glastonbury inqu. of , p. : 'reginaldus thernebedellus tenet dimidiam virgatam terre et summonet homines ad comitatum et hundredum.' [ ] ibid., ; cf. . [ ] ely cart., cotton mss., claudius, c. xi, f. , d: 'debet namiare cum bedello et ceteris avermannis' (men provided with horses). glastonbury inqu. of , p. : 'robertus de eadwic sequitur hundredum et comitatum ad suum costum.... custodit preces arature et messis et debet adjuvare ad namia capienda infra hundredum et est quietus de pannagio.' [ ] glastonbury cart., wood mss., i. f. , ; compoti of nicholas de wedergrave, who had charge of the monastery from the st of november, edward ii, till the th of march, edw. ii, as to the liberaciones et conredia servientium: 'et quod retinuit et necessarie oportuit retinere in eadem abbathia ministros et servientes pro hospitalitate et aliis obsequiis faciendis in eadem abbathia.' [ ] bury st. edmund's register, harl. mss., , f. : 'scriptum johannis northwold abbatis de quinque servanciis' (a.d. ); f. , d: '... de minutis officiis.' [ ] gloucester cart. (rolls ser.), iii. , : 'hoc intellecto quod quandocumque placuerit loci ballivo amoveantur ab uno loco usque ad alium ad commodum domini infra terminum, salvis eisdem liberationibus et stipendiis prius provisis. nec aliquis admittatur ad servitium domini sine saluis plegiis de fideliter serviendo et de omittenda satisfaciendo. et moraturi tunc praemuniantur quod sibi provideant ad morandum ... item quod nullus famulus sit in curia cui plenum non deputetur officium. ita quod si unum officium suo statui sit insufficiens in alio suppleatur defectus.' [ ] merton college mss., , f. : 'coment hom deyt alower oueraygnes en feyneson e en aust. vous purrez bien auer sarcler acres pur un dener e auer fauche lacre de pre pur deners.... e vous devez sauer qe hommes poent bien lyer et syer acres le iour checune manere de ble qe luns plus e lautre mens.... e la ou les prenent d. ob. le iour e le quint pur ceo qil est lyour le iour d., donqe devez donner pur lacre den. e pur ceo qen mouz de pays i ne sevent nient sier par lacre si poet hom sauer par siours e par les jurnees ceo qil fount. mesqe vous reteignez les siours par les eez ceo est a sauer qe hommes ou femmes le quel qe vous voudrez que home apele home font un eez, e hommes font eez, e poent hommes shyer e lier acres le iour entiers ouerables.... e si il accunte plus de jurnees qe ne fiert solon ceste acounte, si ne lor deuez pas alower.' [ ] glastonbury inqu. of , , . [ ] glastonbury inqu. of , , cf. : 'ernaldus c. tempore episcopi henrici habuit de quolibet preposito et quolibet firmario unum denarium ad natale pro taliis quas inveniet eis et morsuras candelarum.' [ ] bury st edmund's registrum album, cambr. univ., ee. iii. , f. , a: 'isti habent biscum panem ... grangiator, bedellus, lurard.' glastonbury cart., wood mss., , f. : 'et quod habeat ... quolibet anno de tota vita sua unam robam de secta armigerorum nostrorum et unam robam competentem vel duas marcas pro uxore sua.' f. : 'concessisse thome de panis redditum unius robe annuatim recipiendi apud glastoniam de secta armigerorum nostrorum videlicet quartam partem panni cum furrura agnina precii solidorum uel duos solidos et si aliquo anno armigeris nostris robas non dederimus, volumus et concedimus ... capiat illo anno ... solidos.' f. , d: '... tres panes, videlicet unum panem uocatum priestlof et alterum panem uocatum bastardlof et tercium panem uocatum seriauntlof de panetria predicti abbatis.... et redditum unius robe ... videlicet quartam partem unius panni de lecta officiariorum cum furrura agnina. et pro predicta aluecia uxore sua unam robam videlicet et octo virgas panni de secta secundorum clericorum cum furrura de scurellis.' [ ] glastonbury inqu. of , p. . cf. : 'vinitor habet talem liberacionem sicut prepositus grangie.' [ ] cellarer's register of bury st. edmund's, cambr. univ., gg. iv. , f. , b: 'inquisitio generalis dicit quod omnes gersumarii debent esse prepositi vel heywardi ad voluntatem domini nec se excusare possint racione alicuius tenementi ut patet in curia ibidem tenta anno regis henrici ^{to}. et notandum quod quicumque est prepositus aule de bertone magna habebit infra manerium unum equum sumptibus domini cum una stotte et dimidiam acram ordei de meliore post terram compostatam et habebit stipulam pisei vel fabarum sine diminucione. et si tenet duas terras custumarias plenas erit quietus pro operibus suis pro una terra et habebit ad natale domini den. ad oblacionem, die purificacionis unam candelam precii quarterii et ad carnipriuium debet participari una perna baconis inter omnes famulos curie et ad pascham habebit d. pro oblacione sua.' eynsham inqu. : 'et quis eorum fuerit prepositus manerii, liber erit et quietus de omnibus servitiis et consuetudinibus quas facit johannes mareys predictus, auxiliis, pannagiis et denario s^{ti} petri exceptis.' [ ] suffolk court rolls (bodleian), : 'terra debuit custodiam clauium conuentus.' ely inqu., cotton mss., claudius, c. xi. f. , a: 'ad idem tenementum pertinet esse coronarium et replegiare homines episcopi ... et facere capciones et disseisinas infra insulam et extra.' shaftesbury cart., harl. mss., , f. : 'iacobus tenet acras et servabit boves excepta pestilencia et violencia.' [ ] glastonbury cart., wood mss., , f. : 'carta abbatis galfridi facta willelmo pasturel (pistori) de terris et tenementis in glastonia:... reddendo inde per annum nobis et successoribus nostris unam rosam ad festum nativitatis beati johannis baptiste pro omni seruicio saluo seruicio regali quantum pertinet ad tantam terram et salvo nobis et successoribus nostris sectis curiarum nostrarum glastonie sicut alii liberi eiusdem uille nobis faciunt.' glastonbury inqu. of , p. : 'galterus portarius tenet tenementum suum scilicet portam hereditarie cum his pertinentiis.' shaftesbury cart., harl. mss., , f. : 'maria dei gratia abbatissa ecclesie s^{ti} eadwardi.... cum dilectus noster thurstanus portarius portam nostram cum omnibus ad eam pertinentibus toto tempore vite sue libere et quiete et iure hereditario possedisset et robertus filius et heres eius, dum post eum contigit thomam heredem eiusdem roberti post decessum patris eius eo quod minoris esset etatis in custodiam nostram deuenire ... cumque ipsum diucius tenuissemus in custodia pensatis predecessorum suorum obsequiis qui nobis fideliter et laudabiliter ministrauerunt ... iura ad ipsum et ad heredes eius racione custodie dicte porte pertinencia ... presenti pagina duximus exprimenda.' [ ] glastonbury inqu. of , p. . [ ] glastonbury cart., wood mss., , f. : 'carta murielle pasturel facta galfrido abbati glastoniensi de tenementis et redditibus pertinentibus (ad) servanciam de la lauandrie.' [ ] bury st. edmund's reg., harl. mss., , f. sqq.: '... ita tamen quod nullus obedienciariorum predictorum potestatem habeat seu auctoritatem conferendi aliquod officium seu servanciam alicui ad terminum vite nec statum liberi tenementi alicui in premissis de cetero concedendi, set huiusmodi seruientes officia predicta necessaria ex collacione predictorum obedienciariorum habentes ad voluntatem obedienciariorum predictorum removeantur quociens necesse fuerit (a.d. ).' [ ] a fourth class would be composed of tenements belonging to people personally strange to the manor. such 'forinsec' tenants were often high and mighty persons who had nothing to do with the agrarian arrangements of the place. i do not speak of this class, because its position is evidently an artificial one and of no importance for the internal organisation of the manor, though interesting from the legal point of view. [ ] shaftesbury inqu., harl. mss., , f. , d: 'bubulci et gadinci habent sabbatum per ordinem carucarum donec eorum aretur terra.' glastonbury inqu. of , p. : 'habebit etiam unam acram in autumpno uno anno apud strete et alio anno aliam acram apud waltonam.' [ ] glastonbury inqu. of , p. : 'stephanus fil. b.... de dominico acras ad implementum terre sue.' cf. : ' acras ad perficiendum suas acras.' ibid. : 'norman de pola dimidiam virgatam. totum tenementum suum est de dominico.' [ ] ibid. : 'unam acram pro d. ad emendacionem terre sue.' [ ] ibid. : 'robertus prepositus unam acram pro quodam soc quam magister alured tenuit, et dicunt juratores sic esse utilius quam esset in cultura, quia longe est a dominico.' [ ] domesday of st. paul's, p. : 'anno domini hugone de s^{to} eadmundo existente custode manerii de bello campo homines infrascripti tenentes terras de dominico quas vocant inlandes sine auctoritate capituli augmentaverunt redditum assizum, ut auctoritas capituli interveniret.' [ ] ibid., p. : 'ricardus a. non feffatus nisi per firmarium consuevit dare annuatim solidos; de cetero dabit sol. den. et ob.' cf. : 'subscripti sunt feffati de pasturis et frutectis usque ad titulum in proximum.' add. mss. , f. : 'robertus cob tenet acras pro d. per capitulum ut sit perpetuum.' domesday of st. paul's, : 'ricardus wor acras de terra arabili et unum mariscum acrarum pro sol. et d. et per cartam capituli.' [ ] ramsay inqu., cotton mss., galba e. x. fol. : 'de nova purprestura acras ... quas homines de dominico tenent.' cf. domesday of st. paul's, . . [ ] glastonbury inqu. of , : 'homines tenent septem virgatas terre de dominico de terra superius nominata, in parte erat liberata in tempore henrici episcopi et in parte postea cum acris quas johannes clericus tenet.' domesday of st. paul's, : 'tenentes de dominico antiquitus assiso.' : 'dicunt eciam quod terre de dominico de novo tradite satis utiliter tradite sunt.' [ ] bracton, f. . see f.w. maitland in the harvard law review, iii. . [ ] rot. hundr. ii. , a: 'in firmariis johannes clericus tenet unam dimidiam virgatam terre ad terminum vitae suae pro solidis per annum pro omni servicio.' cf. , . add. mss. , p. : 'hanc terram tenuit postmodum thomas de retendon et cum esset conventus a capitulo super ingressu in illa eo quod aliquando dixisset quod tenuit eam in feodo et non posset illud monstrare et recognovit se non habere ius in illa et reddidit eam quietam decano et capitulo qui postmodum concesserunt eandem terram cum manso ipsi thomae tenendum de ipsis ad vitam suam tantum pro sol. et d. per annum.' glastonbury cart., wood mss., , , a: 'magister nicholaus de malmesburi rector ecclesie de cristemalforde ... quod cum ego recepissem terram ricardi de leyweye in manerio de cristemalforde ... ad terminum annorum et uiri religiosi glastonie se opposuissent dicentes (dicenti?) me esse infeodatum de terra predicta, presenti scriptura confiteor me post predictos annos in dicta terra non posse vendicare feodum nec liberum tenementum.' [ ] glastonbury inqu. of , p. : 'johannes clericus ... idem tenet unum cotsetle pro d. pro omni servitio ex presto firmariorum reginaldi scilicet de waltona.' domesday of st. paul's, : 'gilbertus filius n. tenet tres virgatas in quas gilbertus avus suus habuit ingressum per theodoricum firmarium et modo reddit pro illis solidos,' etc. ibid. : 'thomas filius godrici acras pro d. cuius medietas quondam stephani, set habet eam per ricardum firmarium,' ibid. : 'walterus de mora acras pro solidis et d. quondam elvine, cui non attinet, cuius ingressus ignoratur.' [ ] warwickshire hundred roll, q.r. misc. books, , f. , b: 'unde willelmus de wexton tenet unum cotagium libere ad terminum vite sue pro solidis metens in autumpno per diem.' a peculiar case is found in glastonbury inqu. of , p. : 'godwin palmer ... dimidiam virgatam ... ex tempore roberti abbatis per thomam cameriarum in cujus custodia fuit tunc manerium.' (later hand): 'iste godwin dedit henrico abbati dimidiam marcam et acrevit gabulum de d. hec convencio durabit dum dominus abbas erit.' [ ] domesday of st. paul's, : 'robertus filius roger filii mercatoris unam acram et dimidiam pro d. item paruum augmentum pro d.' [ ] rot. hundr. i. : 'item andreas prepositus tenet tantum terre sicut dictus goscelinus villanus in omnibus. et preter hoc tenet acras pro libra cimini. item rogerus doning facit sicut dictus goscelinus in omnibus et debet domino suo pro uno seillione terre d. per annum. willelmus mathew tenet eodem modo et preter hoc dat domino suo pro una acra capones precii den.' [ ] worcester cart., , a: 'de forlandis. de thoma de g. pro acris.... de acra quam symon carpenter tenuit. de alicia vidua pro dimidia acra. de johanne roberti pro buttis in crofta,' etc. [ ] domesday of st. paul's, p. sqq.: '(kenesworthe) isti tenent de dominico et de essarto.' sqq.: '(erdelege) isti tenent de essarto veteri.' : '(nastox) nova essarta.' [ ] worc. cart., : 'idem tenet assartum pro medietate fructus et prior invenit medietatem seminis.' [ ] the essarts of st. paul, london, are divided into small portions among the peasantry, and the same men own them who are possessed of the regular holdings--all indications that the clearing was made according to a general plan and by the whole village. [ ] worcester cart., , : 'de soccagiis et forlandis villanorum.' cf. . [ ] a curious species of land tenure is the so-called _rofliesland_ (rough lease?). glastonbury inqu. of , : 'w. de w. tenet unum rofliesland eodem servicio; tota terra est in voluntate domini.' : 'w. tenet acras et filius suus acras; unus eorum tenet carucam domini, alter fugat boves. terra quam filius eius tenet est rofles.' : 'r. fil. a. tenet unum ferdel de rofliesland pro solidis pro omni servicio per camerarium.' : 'idem tenet dimidiam virgatam de rofliesland pro duobus solidis, quod utilius esset edificari.' cf. , sub voce roflesland. the name is found often in old leases in wilts and somerset as a 'rough lease' or a 'rowlease.' i think the term must indicate one of those informal agreements of which i speak in the text. see also reg. malmesbur. ii. , . [ ] rot. hundr. ii. : 'symon et petrus ... tenent de eodem alano unam virgatam terre et solvunt per annum s. et debent arare tres dimidias acras terre ... adam swetcoc tantum tenet de predicto alano et solvit sol. d. et facit per omnia sicut predicti simon et petrus et tantum plus quod debet metere ... thomas alwyne tantum tenet de predicto alano et solvit s. et debet arare acras avene et metere duas acras,' etc. cf. , . [ ] rot. hundr. ii. . [ ] in sawtrey le moyne and sawtrey beaumeys ( , ) the free tenants are partly virgaters and half-virgaters, partly holders of small plots. i need not say that all my quotations are of cases which might be multiplied to any extent. [ ] the undated survey of the ramsey cartulary (ii. ) has a different reckoning: 'item omnes positi ad censum qui tenent virgatam, vel dimidiam virgatam, dabunt per annum pro virgata octo solidos, vel pro dimidia virgata quatuor solidos.' there are several other small discrepancies with the hundred roll description. the document endorsed in the cartulary seems the earlier one, and the differences have to be explained in all probability by some attempt on the part of the monastery to set up a higher rent at the time of its compilation. one does not see the slightest ground for any reduction of the rent in process of time. generally speaking, the conditions described in the hundred roll are more irregular than those mentioned in the cartulary. [ ] the ramsey cartulary has simply: 'et virgatarius arabit et herciabit qualibet septimana per unum diem sicut operarius.' [ ] rot. hundr. ii. . [ ] ib. , . isabel, the daughter of william le frend, is taken as a typical half-virgater. [ ] rot. hundr. ii. . [ ] ib. ii. . [ ] ib. ii. . [ ] ib ii. . [ ] ib. ii. . [ ] rot. hundr. : '(villani) quilibet istorum tenet dimidiam virgatam terre de predicta elena de quibus xxx et operantur in uno anno et alii xxxij operantur in alio anno et in eodem anno quo operantur dant domine per annum d. et alii qui non operantur dant per annum quilibet dimidius virgatarius s. d. et auxilium vicecomitis d. obolum et quilibet dat obolum, quadrantem ad festum st. michaelis.' [ ] maitland, select pleas in manorial courts, vol. i. : a reeve complains that richer jocelin's son and richard reeve and his wife have insulted him, by saying among other things '... quod cepisse debuit munera de divitibus ne essent censuarii et pauperes ad censum posuisse debuit.' [ ] it might perhaps be objected that the difference in favour of the free people ought to be explained by a depreciation of money which in process of time lowered the value of quit rents. but the explanation would hardly suit the age in which the hundred rolls were compiled. the phenomenon mentioned in the text may be observed in all the cartularies, and there is no reason to think that the free rents which occur in them are already antiquated survivals of agreements which had lost their economic sense. [ ] rot. hundr. ii. . [ ] ib. . [ ] ib. . [ ] exch. q.r. misc. books, n , f. a. [ ] exch. q.r. misc. books, n , f. : 'idem thomas habet ibidem villanos tenentes virgatas terre et dimidiam in villenagio, unde johannes aylind tenet dimidiam virgatam terre pro s. d. faciens fenum domini per unum diem cum uno homine, metens blada eiusdem domini per diem cum uno homine, etc. idem thomas habet ibidem liberos tenentes virgatas terre et dimidiam. unde willelmus en la nurne tenet dimidiam virgatam et acras terre pro solidis faciens sectam ad curiam de bathekynton bis per annum pro omni demanda.' [ ] bodekesham, cambs. (r.h. ii. ), is probably a case of molland. the often-quoted instance of ayllington is doubtful, although the ramsey cartulary speaks of the _liber tenentes_ as _malmanni_. the expression was probably in use for all rent-paying people, although properly a designation of those who had commuted their services. see _appendix xv_. [ ] r.h. ii. , : 'in weston, bucks, the service of the villain virgater is estimated at s. d.... elyas clericus tenet dim. virgatam et reddit johanni de patishull d. willelmus fil. willelmi de ravenestone tenet dim. virgatam de eodem feodo et reddit per annum d. thomas acpelard tenet dimidiam virgatam terre et reddit dicto willelmo de nodaris d. stephanus elys tenet dimidiam virgatam et solvit eodem willelmo d. thomas thebaud tenet dimidiam virgatam et reddit eidem willelmo d.... item robertus le cobeler tenet dimidiam virgatam terre et solvit eodem libram cimini. omnes isti prescripti dant per annum forinsecum et scutagium domino willelmo de nodaris quando currit.' cf. torrington, bucks, r.h. ii. . [ ] r.h. ii. (stanton, oxon.): 'ad alternacionem cujuslibet domini de stanton debet recognoscere eundem dominum de uno spervario et dabit dimidiam marcam eidem domino.' [ ] see e.g. ramsey cartul. i. , . [ ] r.h. ii. , . [ ] r.h. ii. . cf. . [ ] r.h. ii. . [ ] r.h. ii. , . [ ] r.h. , , . [ ] a good specimen of the accusations which might be made against a manorial agent is afforded by the court-rolls of the abbey of ramsey. seld. soc. ii. p. . [ ] seld. soc. ii. : 'et dicit curia quod tenementum et una acra servilis condicionis sunt et una acra libere.' [ ] coram rege, pascha edw. i, , : 'messarius abbatis et messarius villate.' [ ] okeburn inqu. (add. mss. ): 'eligere debent unum messarium de se ipsis et domini de ipso electo poterunt facere prepositum.' [ ] gloucester cart. iii. : 'prepositus eligetur per communitatem halimoti qui talem eligant qui ad suam terram propriam excolendum et cetera bona sua discrete et circumspecte tractanda idoneus merite notatur et habeatur, pro cuius defectibus et abmittendis totum halimotum respondeat, nisi ubi urgens necessitas aut causa probabilis illud halimotum coram loci ballivo rationabilem praetendere poterit excusationem.' cf. walter of henley, ed. lamond, pp. , , . [ ] seld. soc. ii. : 'nicholaus filius sacerdotis ... et robertus de magedone ... in misericordia quia contradixerunt tallagium quod positum fuit super eos per vicinos suos.' glastonb. inqu. of , p. : 'totum manerium reddit de dono solidos et den. sicut homines ville illud statuunt.' [ ] ramsey cart. i. : 'sunt in scot et in lot et in omnibus cum villata.' spalding priory reg., cole mss. xliii. p. : 'libere tenens facit fossatum maris et omnes communas ville secundum quantitatem bouatae.' [ ] ramsey cart. i. : 'henricus le freman solebat esse in communa villatae, ut in tallagio et similibus. nulla inde facit.' p. (a villager does not pay his part of the tallage), 'quod quidem tallagium tota villata et ad magnum ipsorum gravamen hucusque persolvit.' [ ] glastonbury cart., wood mss. i. f. : 'si nul soit enfraunchi de ses ouvrages dont la ville est le plus charge.' [ ] add. mss. , f. , b: 'dominus debet invenire duos homines sumptibus suis coram eisdem justiciariis et villata de rode sumptibus suis tres homines invenient. et hoc per consuetudinem a tempore quo non extat memoria ut dicitur.' cf. domesday of st. paul's, : 'alanus filius alexandri de cassingburne tres virgatas pro solidis et preter haec acras de villata et de dominico propter sectam sire et hundredi quam modo non facit.' [ ] custumal of bleadon, : 'invenit fabrum pro ferdello domino et toti villae.' [ ] shaftesbury cart., harl. mss. , f. : 'ibit ad scotaliam domine sicut ad scotaliam vicinorum.' [ ] ramsey cart. i. : 'ponitur in respectu quousque videatur quomodo se gerat versus dominum abbatem et suos vicinos.' [ ] seld. soc. ii. : 'ad istam curiam venit tota communitas villanorum de bristwalton et de sua mera et spontanea voluntate sursum reddidit domino totum jus et clamium quod idem villani habere clamabant racione commune in bosco domini qui vocatur hemele et landis circumadjacentibus, ita quod nec aliquid juris vel clamii racione commune in bosco predicto et landis circumadjacentibus exigere, vendicare vel habere poterint in perpetuum. et pro hac sursum reddicione remisit eis dominus de sua gracia speciali communam quam habuit in campo qui vocatur estfeld,' etc. [ ] annals of dunstable (annales monast.) iii. , : 'et prior dicit, quod praedicta tenementa aliquo tempore fuerunt in seisina hominum villate de thodingdone, qui quidem homines, unanimi voluntate et assensu, feofaverunt praedictum simonem, praedecessorem praedicti prioris, de praedictis tenementis, tenendum eidem simoni et successoribus suis in perpetuum. jurati dicunt ... quod praedicta tenementa aliquo tempore fuerunt in seisina praedictorum hominum villatae de thodingdone et quod omnes illi, qui aliquid habuerunt in praedictis duabus placiis terrae, congregati in uno loco ad quandam curiam apud thodingdone tentam, unanimi assensu concesserunt praedicto symoni, quondam priori de dunstaple, praedecessori prioris nunc, praedictas placeas terrae, cum pertinentiis, tenendum eidem et successoribus suis in perpetuum, reddendo inde eisdem hominibus et eorum haeredibus per annum sex denarios temporibus falcacionis prati.' [ ] madox, firma burgi, , f: '... statim visis litteris capiat in manum regis maneria de cochame et bray, quae sunt in manibus hominum praedictorum maneriorum, et salvo custodiat, ita quod deinceps regi possit respondere de firma praedictorum maneriorum ad scaccarium.' , g: 'miramur quamplurimum quod _s._ quos monachi de lyra de elemosyna nostra constituta singulis annis per manus ballivorum villae vestrae, antequam predictam villam caperitis ad firmam recipere.' cf. exch. i. , a, , b; rot. hundr. ii. : 'benmore juxta langport fuit de dominico domini regis pertinens ad sumerton ubi omnes homines domini regis de sumerton, sutton, puttem et merne solebant communicare cum omnimodis averiis suis, set per negligenciam villanorum de sumertone qui manerium tunc temporis ad firmam tenuerunt et henricus de urtiaco vetus eandem moram sibi appropriavit.' [ ] gloucester cart. iii. : 'omnes isti villani tenent de dominio quoddam pratum quod vocatur hay continens acras et reddunt inde per annum solidos denarios.' [ ] cf. prof. maitland's introduction to the rolls of the abbey of ramsey. seld. soc. ii. . [ ] see the record of proceedings in the court of the manor of hitchin, printed by mr. seebohm at the end of his volume on the 'village community.' [ ] introduction to seld. soc. ii. p. xvi. [ ] add. mss. , f. , a: 'visus de borchtruning.' [ ] gloucester cart. iii. ; malmesbury cart. ii. . cf. kovalevsky, 'history of police administration in england' (russian), . [ ] glastonbury inqu. of , p. : 'de tidinga estone solidos vel placita que orientur.' cf. maitland, introduction to seld. soc. ii. pp. xxx, xxxiii. [ ] rot. hundr. ii. , b: 'et predicti radulfus et robertus habent suas duodenas.' [ ] y.b. - edw. i, : 'presence a vewe de franc pledge demande par la reson de la persone, non de la tenure.' [ ] glastonbury cart., wood mss. i. f. , b: 'predictus abbas consensit quod omnes homines eorum de predictis villis qui fuerint duodecim annorum et amplius faciant sectam ad predictum hundredum bis in annis perpetuum ... exceptis omnibus bercariis, carrucariis predictarum villarum et carrectariis cuiuscumque hominis fuerint et omnibus aliis hominibus tam de predictis villis quam aliunde qui sunt de manupastis ipsius abbatis qui nullam sectam facient ad predictum hundredum nisi ibidem fuerint implacitati vel alios implacitent.' [ ] glastonbury cart., wood mss. i. f. : '... ne soit a la peis le roi come tere tenaunt en diseine ou en fraunche pleivine.' f. : 'serment de ceux qui entrent en diseine ... ne celeras chose qe apent a la pei le roi de engleterre.' [ ] introduction to seld. soc. ii. p. xviii. [ ] seld. soc. ii. p. lxx. [ ] rot. hundr. ii. : 'ermoldus de boys dominus de asynton solebat facere sectam ad boxford ad sockomanemot pro terra ricardi serle in cornerche, nunc illa secta subtracta per annos.' the expression 'frank-halimote' occurs often, but it is evidently an equivalent to 'libera curia,' and interchanges with 'liberum manerium.' see rot. hundr. ii. , , . [ ] eynsham inqu., christ church mss. , a: 'curia debet ibi teneri si dominus voluerit.' [ ] seld. soc. ii. , etc. [ ] beaulieu cart., harl. mss. , f. : 'de sectatoribus intrinsecis ... et qui habent terram in campis ... et ad forciamentum curie omnes predicti tam liberi quam alii cum burgensibus vel pluribus venient ad curiam per racionabilem summonicionem.' glastonb. cart., wood mss. i. , d: 'ipse et heredes et homines sui de acforde facient bis in anno sectam ad hundredum abbatis de nywentone et ad afforciamentum curie.' [ ] rot. hundr. ii. , a; ramsey cart. i. . [ ] warwick hundred roll, exch. q.r. misc. books, , p. : 'quidam de tenentibus dicunt quod nunquam fecerunt sectam.' [ ] gloucester cart. iii. . [ ] chapter-house box , no. : 'hereditas de qua una secta debetur.' [ ] ramsey cart. i. : 'prohibitum est in plena curia, ne quis ducat placitatores in curiam abbatis ad impediendum vel prorogandum judicium domini abbatis.' gesta abbatum (st. alban's), : 'non permittatur quod in halimotis adventicii placitatores partes cum sollemnitate sustineant sed communiter per bundos (i.e. bondos) de curia veritas inquiratur, sine callumnia verborum.' [ ] stoneleigh reg. f. : 'curia de stonle ad quam sokemanni faciebant sectam solebat ab antiquo teneri super montem iuxta villam de stonle vocatam motstowehull, ideo sic dictum quia ibi placitabant sed postquam abbates de stonle habuerunt dictam curiam et libertatem pro aysiamento tenencium et sectatorum fecerunt domum curie in medio ville de stonle.' [ ] selden soc. ii. p. . [ ] introduction to seld. soc. vol. ii. p. . [ ] the durham halimot books (surtees society) supply some instances. [ ] glastonbury inqu. of , p. : 'de dono solidos sicut homines ville illud statuunt.' [ ] selden soc. ii. , . [ ] selden society, vol. ii. , , . [ ] ibid. : 'johannes smert ... henricus coterel maritavit se sine licencia domini, ideo distringantur ad faciendum voluntatem domini.' [ ] ibid. p. : 'postea taxata fuit dicta misericordia per rogerum de suhtcote, willelmum de scaccario, hugonem de cumbe liberos sectatores curie usque ad duas marcas.' [ ] introduction to seld. soc. ii. p. lxv. [ ] ibid. pp. , . [ ] comp. heussler, institutionen des deutschen privatrechts, i. ; ii. ; but i cannot agree with him as the ceremony being employed only where there was to be a 'donatio mortis causa.' in connexion with this the part played by the salman is misunderstood, as it seems to me. [ ] the court rolls of common law manors do not think it necessary to give the particulars about the transmission of the rod. but the description of the practice at stoneleigh, which, though ancient demesne, presents manorial customs of the same character as those followed on ordinary estates, leaves no doubt as to the course of the proceedings. see above the passage quoted on pp. - . comp. a parallel ceremony as to freehold, madox, formulare, p. . the instance has been pointed out to me by prof. maitland. [ ] see pollock, land-laws, , ( nd ed.). [ ] seld. soc. ii. ; insertion of a lease in the roll; p. : 'lis conquievit inter ipsos ita quod concordati fuerunt in hac forma de voluntate domini et in plena curia ita videlicet quod predictus willelmus de baggemere concessit, remisit et quietum clamavit pro se et heredibus suis ... et hoc paratus est verificare per recordum rotulorum seu juratores ejusdem curie per voluntatem domini et senescalli.' p. : 'et sciatis quod si haberem ad manus rotulos curie tempore willelmi de lewes ego vobis certificarem et vobis monstrarem multa mirabilia non opportune facta.' [ ] these points have been conclusively settled by the masterly investigations of brunner, zeugen- und inquisitions-beweis (abhandlungen der wiener akademie) and entstehung der schwurgerichte. [ ] seld. soc. ii. : 'quod talis sit consuetudo manerii et quod dicta augnes sic venit in plena curia cum marito suo et totum jus et clamium quod haberet vel aliquo modo habere poterit in toto vel in parte hujus burgagii in manus domini ad opus ejusdem r. reddidit ponit super curiam ... et juratores curie,' etc. [ ] i do not mean to say that the analytical distinctions which we make between fact and law, between presenters to a tribunal and assessors of a tribunal, were clearly perceived or consequently carried out in the twelfth or thirteenth centuries. on the contrary there was a good deal of confusion in details, and the instinctive logic of facts had more to do in dividing and settling institutions than conscious reasoning. juries and assizes of the royal courts might be called upon incidentally to decide legal questions, but, in the aggregate, there can be hardly a doubt that the sworn inquests before the royal judges were working to provide the courts with a knowledge of local facts and perhaps conditions, while the manorial court gave legal decisions. [ ] seld. soc. ii. : 'et juratores curie ... dicunt super sacramentum suum quod predicta agnes venit in _plena curia_ et totum jus et clamium quod aliquo modo habere potuit in dicto burgagio in manus domini reddidit.' : 'et juratores ... dicunt super sacramentum suum quod juliana per quam dicta matildis petit hujusmodi messuagium nunquam fuit seisita de ipso mesuagio, set willelmus ponfrayt maritus ipsius juliane, unde secundum consuetudinem manerii juliana post mortem w. mariti sui nichil poterit clamare nisi dotem in huiusmodi mesuagium _nisi fuerit in plena curia_ una cum marito suo de huiusmodi _perquisito conjunctim seisita_.' cf. p. : 'unde willelmus pro _premissis in plena curia recordatis et inrotulatis_ dat domino solidos.' [ ] inst. , cap. . [ ] y.b. / edw. iii (rolls ser.), p. , sqq.: '... les suters de cokam firent venir plein record ... les suiters agarderent seisine de terre ... ila firent faux judgement.... _stonore_: cest usage est molt encontre la ley, qe cesti qe doit tenir les plees ne poet pas recorder un attourne en ple qe serra plede devant lui mesme. _trew_: nous voloms averer qe les usages sont tiels, qe le seneschal de la court poet resceivir un attourne, issint qil dei entre les suiters coment il ad resceu un tiel attourne en tiel ple a la proschein court apres la resceite, et vous dions qe cesti adam qe respondi par attourne fut resceu attourne en la manere.' cf. lysons, magna brit. i. . y.b. edw. iii. : 'rob. le w. porta son brief de faux judgement devers un home et sa feme, et apres le record avowe par les suters de la court de bloxham ... les suters agarderent qe robert et ses plegis fuerent in le mercie, et quod narratio sua fuit iniqua, et recordarent un nonsuit la ou la partie fust en court, per qe nous prioms qe cel record soit revers.' viner, abr. ii. a. , o. . [ ] y.b. / edw. iii (rolls ser.), p. : '_trew._ le brief suppose qe le defendant tint le ple et qil fut baillif, ou seuters tenent le ple qe ont record; jugement de bref. et non allocetur, quia ipse tenet curiam et ei dirigitur breve.' [ ] note book of bracton, pl. : 'preceptum fuit ballivis de kingestona quod in plena curia sua de kingestona recordari facerent loquelam ... et recordum venire facerent per quatuor qui recordo illi interfuerunt, etc.... ideo balliui inde sine die et radulfus in misericordia.' : 'preceptum fuit vicecomiti quod preciperet balliuis manerii domini regis de haueringes quod recordari facerent in curia domini regis de haueringes loquelam que fuit in eadem curia per breve domini regis ... unde predicte agnes et dyonisia queste fuerunt falsum sibi factum fuisse iudicium in eadem curia et quod diligenter inquirerent qui fuerunt illi de maneriis domini regis de writele, neuport et hatfeuld qui interfuerunt predicto iudicio faciendo simul cum hominibus domini regis de haueringes et illos venire facerent aput aueringe ad diem quem predicti homines et balliui haueringe predicti loquelam recordari facerent, ita quod tam predicti ballivi et homines de haueringe quam predicti homines de predictis maneriis recordum illud haberent coram justiciariis aput westmonasterium per legales homines de manerio de aueringes et de maneriis de writele, de neuport et de hatfeuldia ex illis qui recordo illi interfuerunt.... consideratum est quod illi de predictis maneriis falsum fecerunt iudicium et ideo omnes de manerio in misericordia preter willelmum dun ... qui _noluerunt consentire judicio_.' [ ] stoneleigh reg., f. : 'item si aliquis deforciatur de tenemento suo et tulerit breve regis clausum ballivis manerii versus deforciantes, dictum breve non debet frangi nisi in curia ... item quando ballivus aliquem summoneat ex precepto curie, tunc assumet secum duos sokemannos quos voluerit pro testanda summonicione predicta ... item qualitercumque placitum terminetur in curia sive in deficiendo in lege vadiata sive per non defensionem dampna sunt semper taxanda per curiam ... item debent sokemanni respondere per coram justiciariis et coronatore domini regis. et ipsi dabunt iudicia curie de stonle ... item nullus adiudicabitur tenens terre nisi qui a curia tenens acceptatur per fidelitatem et alias consuetudines licet tenens extra curiam aliquem feoffaverit per cartam vel sine carta.' [ ] selden soc. ii. : 'capiatur in manum domini quarta pars unius rode prati jacens in smalemade quam rogerus greylong vendidit nicholao le neuman sine licencia curie.' cf. : 'praesentatum est quod hugo graeleng solvit sursum extra curiam ad opus thome aspelon de broucton liberi unam portionem cuiusdam mesuagii ... ideo preceptum quod capiatur in manum domini.' [ ] we hear constantly such phrases as the following: 'quod iuncta est secum vocat rotulos ad warrantum; ponit se super rotulos.' but we have also: 'et partes pecierunt quod inquiratur per villatam que dixit quod sufficientem duxit sectam. postea testificatum fuit per totam villatam quod dictus nicolaus tenebatur dicto bartholomeo in predictis _d._' (seld. soc. ii. ). in one case the party relies on the evidence of the register of ramsey (p. ), which was compiled, of course, on the basis of sworn inquests held in the different manors. [ ] seld. soc. ii. . [ ] augment. court rolls, portf. xxiii. no. , m. : 'quod quidem per senescallum concessum est eisdem' (the entry is omitted in mr. maitland's publication). [ ] seld. soc. ii. . [ ] augment. court rolls, portf. xxiii. no. , m. v. (the entry is not in the selden volume): 'margeria que fuit uxor nicholai de aula de kingesripton venit et petit unum parvum mesuagium existens in manu domini quod quondam fuit de mesuagio suo proprio et quod ipsa margeria singulis annis defendit versus dominum abbatem, unde petit quod ius suum super hoc inquiratur per bonam inquisicionem. que venit et dicit ... et ideo preceptum eidem quod inde habeat colloquium cum domino. et postea colloquio habito cum domino concessum est ei quod pacifice habeat faciendo seruicia inde debita et consueta.' [ ] selden soc. ii. . [ ] selden soc. ii. . [ ] ibid. : 'reginaldus fil. benedicti injuste dedicit esse unus de juratoribus allegando libertatem ... dicunt eciam quod willelmus de bernewell injuste allegat libertatem propter quam contradicit esse unus de juratis.' cf. cor. rege incerti anni johann. : 'predecessores sui et ipse tenuerunt liberum tenementum et quod quidam ex juratis sunt consuetudinarii monialium.' cor. rege pascha, edw. i, , b: '(amerciamentum sochemanni) per pares vel per liberos de curia et vicinos ad curiam venientes.' [ ] hereford rolls (bodleian), : 'compertum per libere tenentes quod custumarii falso presentant ... ideo custumarii in misericordia.' rot. hundr. ii. : 'quatuor homines et prepositus presentabant defaltas predictis liberis hominibus et ipsi liberi presentabant ballivis.' [ ] seld. soc. ii. . [ ] introduction to seld. soc. ii. p. lxx. [ ] seld. soc. ii. . [ ] ibid. . [ ] see as to all this mr. maitland's introduction to the selden volume (ii), pp. lxix, lxx. [ ] introd. to selden soc. ii. p. lxi, and following. comp. coram rege, henry iii, : 'dicunt quod non est aliquis liber homo in eodem manerio nisi willelmus filius radulfi qui respondet infra corpus comitatus.' [ ] y.b. - edw. i, (rolls series). [ ] comp. mr. maitland in his often-quoted introduction, p. lxxi. [ ] introduction to seld. soc. ii. p. lxvi. [ ] archaeologia, vol. , p. , and following. [ ] rot. hundr., cartulary of ramsey, i. [ ] gomme, village community, , etc. [ ] cart. of malmesbury (rolls ser.), ii. . [ ] a very good case in point is presented by hitchin, because the boundaries and the jurisdiction of the manor comprise a great number of villages and hamlets which managed their open fields quite independently of the central township of hitchin, and could not but do so, as they lay quite apart and a good way from it, as may be seen on the ordnance map. and still the manor comprises 'the township of hitchin and the hamlet of walsworth, the lesser manors of the rectory of hitchin, of moremead, otherwise charlton, and of the priory of the biggin, being comprehended within the boundaries of the said manor of hitchin, which also extends into the hamlets of langley and preston in the said parish of hitchin, and into the parishes of ickleford, ipolitts, kimpton, kingswalden, and offley.' (seebohm, village community, , .) as mr. seebohm tells me, the contrast between the central portion, that of the township, managed in one open field system, and the outlying parts, is probably reflected in the curious denominations of the manor as portman and foreign. it is well known how frequently our surveys mention hamlets; in many cases these annexes of townships are so widely scattered, that it would be impossible to suppose one open field system for them. [ ] seld. soc. ii. , . [ ] ibid. , . [ ] introd. to seld. soc. ii. p. xxxix. [ ] 'cest action est mixte en favour de franchise car rarement se sustreit nul del fief de son seiniur, s'il ne soy claime frank' (p. ). [ ] p. . [ ] p. : 'si le defendant puisse monstrer frank cep de ses anncestres en la conception ou en la nativity ou puis, y' ert le defendant tenable pur frank a touts jours tout y soyent present pere et mere frere et cosins et tout son parenter que soy coynossent estre serfs al actor, et tesmoignent le defendant estre serf. le autre notability est, que nient pluis ne fait long tenure de villeinage franchome serf que long tenure de frank fieu ne fait home serf frank, car franchise ne soy defait jammes par prescription de temps.' p. : 'servage est un subjection issuant de cy grand antiquite, que nul frank ceppe ne purra estre trouve par human remembrance.' cf. britton, i. . [ ] p. : 'ou si son seignior luy eject de son fief, et luy done sustenance (_corr._ ne luy done sustenance).' : 'abusion est que home puisse challenger celuy pur son naife a que il ne trova unque sustenance, de sicome serf nest _my serf forsque tant come il est en gard_, et de sicome nul ne poet challenger son serf pur serf tout soit il en sa garde s'il retrouve (_corr._ ne trouve) sustenance a son serf que luy vault mees et terre en son fief, ou il purra gaigner sa sustenance, ou autrement luy retient en son service.' cf. . [ ] cf. p. . [ ] p. . [ ] p. . [ ] ib. p. . 'abusion est que serfs sont frank pledges ou pledges de frank home.' cf. . [ ] p. . 'nota que villeins ne sont my serfs car serfs sont dits de garder sicom est dit.' : 'abusion est a tenir villeins serfs, et ceste abusion merust grand destruction de poor people, grand poverty, et grand peche.' [ ] p. : 'abusion est que lon dit que villenage neste my frank tenement ... car villein et serf ne sont my en (_corr._ un) voice, ne en (_corr._ un) signification, eins poet chascun frank home tenir villenage a luy et a ses heires fesant le servage et le charge del fiew.' [ ] p. : 'ascuns receverent fiefs assoubs de chescun obligation sicome per service faire ou en pure almoigne, ascuns a tenir par homage, et en service al defense del realme, et ascuns par villeins customes d'arrer, over charrier, sarclir, franchir, seier, tasser, batre ou tilt autres manners de services, et ascun foits sans reprise de manger; et dont plusors fines sont troves levees en le tresore que font mencion de ceux services et viles customes faire, aussi bien come autres de pluis curtoise services, et dount tout soit que tiels gents _ne eient point de chartres, ne monuments_ sils soient nequident engettes ou disturbes de lour possessions a tort, _droit les succort per l'assize de novel disseisine_ attenir en le state come devant per cy que ils puissent _averrer que ils scavoient lour certaintie de services et doveraignes per an come ceux que auncestres avant eux furent astrers de pluis longe temps per case que les disseisors nen furent seigniors_.' [ ] : 'villeins sont cultivers de fief demorants en villages uplande, car de vile est dit villeins, de burgh bourghois, et de cite cittizens, et de villeins est mencion fait en le chartre de franchise, ou est dit, que villein ne soit mie cy grivement amercie que sa gaigneur ne soit a luy salve, car de serf ne fait il my mention pur ceo que ils ount rien propre que perdrent. et de villeins sont lour gaignures appelle villenages.' [ ] . on the other hand it is mentioned, that serfs cannot be devised because they are astriers and annexed to the free tenement of the lord. [ ] : 'et de _ceo soy entremist seint edward_ en son temps d'enquirer de toutes les ... que luy fesoit a tiel gaignors oustre lour droit et en fist grande vengeance. et puis pargents que meins doulent pecheir que faire ne duissent sont plusiours ceux villeins _par tortious distresses chasses a faire a lour seignours le service de rechat de sank_, et plusors autre customes voluntaries pur mener les en servage a lour poiar, dont _lour remedie per le ne injuste vexes per les negligence des royes_' (the end of the sentence is evidently omitted or 'is falling into disuse' must have been meant).--p. : '_abusion est que le briefe de ne injuste vexes va issint en decline_.' [ ] it ought to be mentioned that the hundreds to which suit is due belonged to the church of ely. [ ] rot hundr. ii. : 'walterus de pedecorthin est dominus (de ingwethin), in qua est una virgata terre et facit sectam ad hundredum bis in anno, set non ad parva hundreda nec ad comitatum, nesciunt quo warranto.' ii. : 'decena de larncynge solebat facere sectam ad dictum hundredum de bretford set de consensu w. de breuse dicta decena divisa fuit in duas partes. ita quod una pars secta ad curiam domini de brawatere et alia medietas ad dictum hundredum de bretford ad dampnum domini dicti hundredi solidorum per annum:' ii. : ' homines de homagio johannis le butiler in stones et boxham qui debent facere sectam ad predictum hundredum subtraxerunt sectam suam ad duo hundreda generalia per annum et unus predictorum hominum retraxit sectam suam per totum annum debitam.' [ ] r.h. ii. . cf. , . [ ] exch. q.r. misc. books a. , f. , b: 'nota--predictus ricardus (de loges) dicit se _non habere warentum aliquem nisi per antiquam tenuram sine carta...._ idem ricardus habet visum franci plegii unde vocat ad warantum le domesday (!) ... idem ricardus tenet quicquid tenet in soume de comite cestrie, ut idem ricardus dicit, per seruicium ducendi comitem cestrie usque curiam regis per medietatem foreste predicte de kanoke, obviando ei ad pontem de rocford ad mandatum comitis et idem comes dabit unam sagittam barbatam dicto ricardo et capiat in foresta unam feram si voluerit eundo et aliam redeundo si voluerit, et in redeundo obviabit ei ad pontem de repelwas ad mandatum comitis et dabit ei aliam sagittam.' cf. rot. hundr. ii. : '[libere tenentes] johanna galard tenet in eadem dimidiam virgatam terrae de dono willelmi fratris sui et reddit eidem per annum d. et idem willelmus tenet _de hereditate per defensum antecessorum suorum qui dictam dimidiam virgatam terrae habuerunt de dono regis cujus nomen ignoramus_.' thomas wyteman tenet in eadem i virgatam terrae de philippo de lenettale, _et est de confirmacione regis, ut dicta dimidia virgata terrae prescripta_. i have already quoted this passage in the note on the hundredors. i give it as corrected according to the ms. in the record office. in the printed version of the hundred rolls it has lost its meaning. [ ] r.h. ii. , . '_libere tenentes._ robertus de aula tenet in predicta villa duas virgatas terre de abbate de ramesaye de antiquo conquestu et supradictas septem virgatas similiter de antiquo et facit sectam curie bis per annum et si brevis domini regis ibi sit faciet sectam de tribus septimanis.... robertus mariot tenet virgatas terre de roberto de aula de feodo episcopi elyensis de antiquo feffamento.' [ ] rot. hundr. ii. , . cf. as to the meaning of antiqua tenura, etc. rot. hundr. i. , . [ ] exch. q.r. misc. books, no. , f. : 'idem edmundus habet libere tenentes subscriptos. ricardus de hulle tenet unum mesuagium et acras terre pro solidis et secta ad curiam suam ibidem de tribus septimanis in tres septimanas (about ten similar holdings) et sciendum quod omnes predicti debent sectam predictam et tenent _per fidelitatem et nullum faciunt homagium_.' [ ] bracton, f. b. madox, formulare anglicanum. [ ] coram rege, pascha edw. i, f. , : 'et requisitus si aliquid scit dicere quare predictum mesuagium quod est infra predictum manerium esse non debeat de condicione antiqui dominici regis, utpote per feoffamentum domini regis vel antecessorum suorum,' etc. cf. placit. abbrev. (quoted p. , n. ). [ ] besides the extracts from the stoneleigh register quoted on p. , n. , and p. , n. , i may be allowed to call attention to f. : 'item nullus adiudicabitur tenens terre nisi _quia curia tenens acceptatur_ per fidelitatem et alias consuetudines licet tenens extra curiam aliquem feoffaverit per cartam vel sine carta.' maitland, manorial rolls of king's ripton (selden soc. ii). p. : 'capiatur in manum domini quarta pars unius rode prati jacens in smalemade quam rogerus greyling vendidit nicholao le neuman _sine licencia curie_.' cf. as to the references to the court-roll in case of doubt and contention. augmentation off. court rolls, ripton regis, xxiii, n. , f. : 'et quod iuncta est secum vocat _rotulos ad warantum_. et predicta mathildis dicit quod uxor eius non est iuncta et ponit se super rotulos.' now the importance of the roll is derived from the authority of the court of which it records the proceedings. [ ] rot. hundr. i. p. : 'sokemanni _domini regis de soka de_ piclinton tenere solebant carucatas terre et unam bovatam in brunneby de antecessoribus radulfi de lacely et ipso radulfo. de quibus hospitalarii habent unam bovatam de dono antecessorum dicti radulfi.... item prior de elreton bovatas ... que sunt de tenura sokemannorum.' these are free men under soke, but there is not much to distinguish them from people on ancient demesne soil. cf. maddox, exch. , c: 'liberi sokemanni de askebi et tinton reddunt compotum de marcis et i palefridi ut henricus de nevill eos juste deducat de tenementis quae tenent in eisdem villis, nec ab eis exigat consuetudines vel servitia quae facere non solebant tempore henrici regis patris regis,' etc. transcriber's notes: {a single greek word has been transliterated} pg . n . [ ] 'see appendix x' changed to 'see appendix xii'. generously made available by the internet archive/american libraries.) the affecting case of the unfortunate _thomas daniels_. _london_ _thomas daniels_, the person named in the pamphlet hereunto annexed, intitled, "_the affecting case of the unfortunate thomas daniels_ &c." maketh oath and saith that the said pamphlet (containing twenty-four pages) is a just and faithful narrative of his case; and that the same is published at his particular desire of having the public truly informed of the whole and every circumstance of his case, with a view to the removing all unfavourable prejudices against him. _thomas daniells._ sworn this d of _november_, , before me _w. alexander._ the affecting case of the unfortunate _thomas daniels_, who was tried at the sessions held at the old bailey, _september_, , for the supposed murder of his wife; by casting her out of a chamber window: and for which he was sentenced to die, but received his majesty's most gracious and free pardon. in which is contained, a circumstantial account of the behaviour of that unhappy woman, from her husband's first acquaintance with her, to the day of her death. drawn up and authenticated by the said daniels himself; and faithfully prepared for the press, by an impartial hand. london: printed for e. cabe, in _ave-mary-lane_. mdcclxi. the affecting case of the unfortunate _thomas daniels_. the calamitous circumstance of having been condemned to death by the laws of his country, for the most hateful of all crimes; and his most extraordinary deliverance from an ignominious fate, and being restored to liberty unconditionally and free! will naturally render the case of _thomas daniels_ a subject of eager curiosity and warm debate. that persons in the superior stations of life should sometimes find means to evade the punishments incurred by infringing the laws of their country, and by disturbing the order of society, does not greatly excite our wonder; an experience of the manners and customs of the world, occasions our hearing such instances as things of course; we make a natural reflection or two on the occasions, and think no more of them. but when a person in one of the lowest classes of mankind, by a fatal accident, appears before a court of justice with apparent evidences of guilt, sufficient to influence a jury of his impartial countrymen to sentence him to the most severe penalty the law can inflict; when this man, meerly from the advantage of a good character in the narrow circle of his acquaintance, and from a re-examination into the probability of the fact, for which he was condemned, shall have the inferences drawn from the depositions on his trial, totally invalidated, so that the sentence passed on him is freely remitted! it is _such a sanction_ of his innocence, that it would be cruel and unjust, in particulars, afterward to retain any suspicions injurious to him. it ought to be principally attended to in this affair, that his majesty, whose regal virtues are so generally known and acknowledged, cannot appear in a more amiable view, than in the attention with which he is said to have endeavoured to discover the merits of the intercession made for this poor convict. an instance which, as it may be deemed too trivial to engage any particular share of princely consideration, yet is certainly one of the truly parental duties of a monarch, and will endear him in the hearts of many of his useful subjects, who are beneath caring for the retention of _guadalupe_ or _canada_. and it is doing justice to the poor fellow, to own, that he seems to retain a grateful, if not a politely expressed, sensibility of the great obligation he owes to the royal parent of this his second period of existence. but as an imputation of so base a nature, confirmed by a court of justice, would naturally prejudice female minds universally against him, too strongly for any after testimony in his favour easily to efface; and as mr. _daniels_ is not yet old enough to relinquish all thoughts of matrimony, and seems to possess too happy a share of vivacity to be totally depressed by his past misfortunes, however severe they have been; it is probable he may be hardy enough yet to venture on a second trial of that state, can he find any good girl candid enough _to venture on him_: but however this may be, from many important considerations the poor man is willing to give the world all the satisfaction in his power, relating to the unhappy woman who was lately his wife, and on whose account he has gone through so much trouble and anxiety from his first connexion with her: and it is charitably hoped, that, as he has so solemnly authenticated the particulars of it, the same degree of credibility will be allowed _him_, which would be granted to any other person of fair character and good estimation. the following particulars concerning this unfortunate couple, were penned by _thomas daniels_ himself, since his enlargement; and are faithfully exhibited with no other alterations than what were absolutely necessary, with regard to spelling, style, and disposition, to render the narrative in some measure clear and fit for perusal. this dressing was not intended to give any undue colouring to facts, but simply to supply the deficiencies of the writer; whose laborious situation in life has denied him those literary advantages indispensable to the writing his story with tolerable propriety. thus much being premised, it is time to let the principal offer his plea, as candidate for the favourable opinion of his readers. "it was in the year that i first became acquainted with _sarah carridine_, by living in the same neighbourhood. she was a very pretty girl; and i had a great affection for her, as i imagined her to be a good industrious person. i made my friends acquainted with my regard for her, but they were entirely against my having her, because of her living in a public-house: but i was obstinate, and told them i loved her and would marry her at all adventures, as i believed she would make a good wife: upon this they said i might have another far preferable to her, but that if i was resolved not to listen to their advice, they would have nothing more to say to me, and i should never come near them more. finding therefore it was in vain to hope for my father's consent in this affair, i consulted with her what to do, and at her desire i agreed that she should take a lodging for us both, and her mother took one accordingly. i then left my former lodging and lived with her; but as i still worked with my father as before, he soon found that i had changed my lodging, and upon what account. this discovery made him very angry, and we had a quarrel about it, which made me resolve not to work with him any more. this laid me under a necessity of seeking for business elsewhere; and in my walks for this purpose, i met with some acquaintance, who told me they had entered on board the _britannia_ privateer, and that she was a fine ship. by their encouragement i entered myself also. i went home, and told _sarah carridine_ what i had done; she cried sadly, but i begged her to make herself easy, for that the cruize was but for six months, that we were going to make our fortunes, and that i would marry her when i came back; and in the mean time would advise her to go to service. this pacified her, and she promised so to do. "we sailed on the th of _august_, on our cruize, but had very bad luck, and i returned home in _april_, . as soon as i came to _london_, i went to my master, mr. _archer_, who keeps the sign of the _white bear_, the corner of _barbican_ in _aldersgate street_; there i sent for my father and mother, and we spent the evening together very agreeably, much rejoiced at our meeting again. i enquired of my mistress where i could find _sarah carridine_? she referred me to mr. _john jones_ the founder, who she said could inform me. _jones_ took me over the water to an alehouse at the bridge foot, where i saw her. i used in the evenings to go and sup with her, at her mother's, after my day's work; and mr. _jones_, lodging in the same house with me, frequently went with me. _jones_ and i had been old acquaintance for some years; he pretended great friendship for me and _sarah carridine_, and offered to be father to her and give her away. this was very agreeable to me, and i fixed upon _st. james's_ day for our marriage. i informed my friends of my intention, but i could not obtain their consent. i asked my master to lend me a guinea to defray the wedding charges; but being refused, _jones_ advised me not to be beholden to any of them, but to raise some money upon my watch: i therefore put it in his hands, and he pawned it for me. this will serve to shew how officious he was in this transaction. "we lived for some time after our marriage in ready-furnished lodgings, until my wife's mother persuaded us to come and lodge with her; she lived in _catharine-wheel alley, whitechapel_. this we did until i procured some goods of my own. while we lived there, she used to be frequently abroad when i came home from my work. i cannot but take notice in this place, that, however wrong it may be esteemed by others, and however disagreeable to me, to speak ill of the dead; yet the peculiarity of my situation will, i hope, excuse the obligation i am under of declaring the truth, this being now the discharge of a duty i owe to myself. whenever i asked her mother where she was gone? she would tell me she was gone to see some young women in _spital fields_. when she came home she was often in liquor, and i would then say, '_sally_, what makes you drink so much?' her mother would reply, 'lord, a little matter gets in her head, for she is a poor drinker.' i then resolved to take a little shop to employ her: i did so, and put her in a little shop in the _minories_, to sell pork, greens, and other articles; and she might have done very well there if she had minded her business, and not have gone to see the young women so often as she pretended. at last however i went to see where these young women lived, but they had not seen her a long time. as i was returning back, i saw my wife with mr. _jones_, going before me, whom i followed until i saw they turned into a public-house. on this i went back to her mother, and enquired whether she was returned? she replied, 'lord, i suppose they will not let her come yet.' with that i said, it is very odd, but i believe i know where she is; i will go and see. when i went back there they were both together. so, said i, this is your going to see _bett reed_! she replied, i am but just come back. pray, said i, how came mr. _jones_ here? she answered, she found him there, and believed he came to see me. i then said, i rather believe he came to see you; i saw you both come in, arm in arm. she was then drunk, which made me send her home. i told him he had no business to keep my wife from me; but if he was a man he would come out, and try who had the best right to her. he would not, but went away. "when i came home, my wife and her mother and i, quarelled, and i had them both upon me at once: she then ran away, and staid all night. the next day by her mother's persuasions we made it up, and agreed that she should go and mind her shop, and never go into _jones_'s company more. after this he did not come near us until the next lord mayor's day, when he knew, i suppose, that i was gone to my master's hall. my shopmate and i went to carry my master's great coat; my master gave us a bottle of wine, and we went into the kitchin and got some victuals to it; this we carried home to my wife, thinking to enjoy it quietly there. i asked her mother where _sally_ was? she said she was gone to the _three kings_, and bid me go and call her. before i went i heard a noise upon the stairs, and, upon taking a candle to see what was the matter, there stood my wife; and hearing somebody going down to the cellar, there stood _john jones_! "my wife and i had a great quarrel on this occasion; she pretended that he came only to give her some ribbons, as he had been a whiffler in the procession. perceiving what a loose disposition she was of, i resolved she should keep shop no more; i therefore shut it up. there are people enough in that neighbourhood sufficiently acquainted with these transactions; and with my wife's general behaviour. "i then thought we should be rather more quiet if i moved her from her mother's, for we were always quarrelling. i got some goods of my own, and my wife and _my_ mother took a room for me in the _little minories_, when for some time we lived more loving than before. however she quickly began her old irregularities again, which occasioned fresh quarrels, to the great uneasiness of our landlady, for the people of the house were very good sort of people. she would often talk to my wife, and give her wholesome advice, but all to no purpose; which determined me to leave her. i again entered on board the _britannia_ privateer as carpenter's mate, without acquainting any body with my intention, and went down to _greenhithe_ where the ship lay, to work on board her. before i had been there many days, to my great surprize down came my wife with _john jones_! they staid on board all night, my wife crying bitterly to persuade me to come home again, promising an entire reformation in her conduct. i said i could not come back now, because i had entered myself; but she lamenting and behaving like a mad woman, i was persuaded to return home with her. to do this, i obtained leave of our lieutenant to go to _london_, to bring my tools down, when my wife prevailed on me to stay at home. i then went to work again in town, and my wife said if i would try her once more, by putting her in a shop, she would be very good. then it was i took a house, at the corner of _hare court, aldersgate street_, where, for some time, she managed very well, but soon returned to her old ways again. by our frequent quarrels the neighbours were at first inclined to think i used her ill, but had they then known how affairs were circumstanced, they would not have blamed me; for her temper grew so unaccountable, that she would frequently come after me, where ever i happened to be at work, or at the alehouse, and abuse me for nothing. when i came home at nights from my work, thinking to pass the evenings comfortably with her, she would constantly find some pretence to quarrel with me, and to render my life uneasy. one time, in particular, when i came home, she threw the pewter quart pot, she had been drinking out of, at my head; and then running out of the house, she, in the violence of her rage, dashed her elbow through the glass window of our shop, and then ran up to my master _archer_ with her bloody arm, crying out,----'see here what your rogue has done'--thus she endeavoured to prejudice me in the minds of all my friends and acquaintance; when afterward she confessed to mr. _moses owen_, a barber in _old street_, who compleated the cure of her arm, _that she did it herself purposely_. "another time, when i worked at _st. mary axe_, she, and one of her acquaintance, having been to _billingsgate_ to buy oysters for her shop, came to me to the _crown_ alehouse in _camomile street_, where i was then at dinner with my shopmates: there she wanted me to treat her with drink, which, as i observed her to be already in liquor, i refused, and would have gone back quietly to my work; she then snatched off my hat and wig to detain me, but finding that not to answer her intention, she abused me in a most vile manner, and with a small cod which she had with the oysters, beat me in a most ridiculous manner about my head and face; and, as all my brother journeymen may well remember, obliged me to go back to my labour bareheaded! "one day, when my business carried me to the other end of the town for the whole day, my wife gave _jones_ notice of it, and quickly after i was gone dressed herself, shut up her shop, and went out with him to spend the day. he was that day dressed in a new suit of cloaths. at night when i came home, not being able to get into my house, i went to her mother's in _whitechapel_, expecting to meet with her there. by the way as i was coming back, who should i see before me but my wife and _john jones_! i followed them into an alehouse, where i quarrelled with them both, and in my passion threw some beer in her face, on which she ran out to her mother's. i challenged _jones_ to fight me, but he would not. but meeting with him afterward, he then challenged me, for reporting the familiarity between him and my wife. on this we stripped, and had two or three blows; he fell against a table, and, as he says, broke two of his ribs, for which he took me up, but i was bailed out by my mistress. as my wife thought proper not to come nigh me, i lett the shop which she kept and lodged at my master's. she continued away about seven weeks, only calling upon me now and then to abuse me; and going home to my house to scold and threaten my lodgers, whom i had admitted upon her deserting me. "at length she and her mother came together to me; her mother threatened, if i would not take my wife home again, to arrest me for her board; upon this i urged her bad treatment of me while she was at home, her neglect of her family affairs, and her scandalous attachment to this _john jones_; and lastly, her voluntary elopement. however we entered into a treaty of pacification, in the course of which, she confessed her intimacy with _jones_, and the terms on which it had subsisted. it seems their connexion began while i was on my cruize in the _britannia_ privateer; he promised to marry her if i should not return, and if i did, that he would still continue his kindness to her, and that in case he was to die, to leave her all his goods, and all his interest in the capital of a box-club, of which he was a member. this confession, though it was an odd one for me to hear, yet, as it was accompanied with what appeared to me sincere promises of amendment, i, in an evil hour, agreed to live with her once more. accordingly i moved my bed into the two pair of stairs room, which one of my lodgers then quitted; this was about nine months before her unhappy death. "when she came home again, though i believe she did not continue her acquaintance with _jones_, yet her behaviour was otherwise so disorderly as rendered me very unhappy. for at times, when i came from work, expecting my breakfast, dinner, or supper, i frequently found the door locked, and so was drove to the necessity of eating my meals at an alehouse; a very disagreeable resource to a man, who, having a wife and a home, naturally expected the comforts resulting from such seeming advantages. but this was not all; she sometimes coming home in the interim, would seek me through all the public-houses in the neighbourhood, and when she found me, would strike me with whatever lay next her, raving at me for not coming home, and denying her having been out. once, in particular, having bought a piece of veal for my _sunday's_ dinner, when the morning came, truly she would not dine at home, she would go to her mother's, though i convinced her that the weather, being hot, would spoil the meat by the next day. i then went to my shoemaker to fetch me a pair of shoes, and they in friendship asked me to eat, as i found them at dinner; i was soon followed by my wife, who, finding me eating, was hardly withheld from stabbing me, first with a knife, and afterward with a fork. "one _sunday_, with a view to entertain her, i took her down to _ilford_, that we might spend the day agreeably. we dined at the _white-horse_ there, and after dinner she drank very freely. when the reckoning came to be paid, she threw herself in a great passion with the landlord, on account of his charge; and i unluckily attempting to moderate matters between them, drew all her rage upon myself. she was so violent in her resentment, that she declared she would not go home with me, but would go with the first person who should ask her, or even with the next man who went by. just at this time, a man dressed like an officer stopped in a chaise to drink; my wife soon entered into discourse with him, and asked him to let her ride home in his chaise: the man agreed, and away they drove together! this now was a measure she was not under any necessity of taking, because, not believing she would be able to walk home, i had offered her a place in the stage, which was quickly to pass the door. "thus abandoned by her, i walked home, and after waiting due time went to bed. about two o'clock in the morning i was roused by a knocking at the door: there was my wife so drunk as hardly to be able to stand, attended by her mother! the mother made what excuses she could for her daughter, to induce me to let her in, pleading, for the lateness of the hour, that, after the man had carried her a long way out of her road on the forest, he, at last, left her to walk home alone. i let her in, but her mother was obliged to stay and put her to bed, as she was entirely incapable of undressing herself. "though her intimacy with _jones_ was discontinued, yet she was not destitute of a gallant: one _william charlton_, a man of my own business, was now her paramour; but as he was a married man, i had the additional mortification of having his wife come to scold me for suffering my wife to decoy away her husband! after having been with this _charlton_, about a fortnight before her death, she came home very drunk, and abused me sadly. she beat me over the shoulder with a pair of tongs; i wrested them from her, and, as i purpose to speak the truth, i will confess, that, in my passion, as she ran down stairs, i followed her and gave her a blow with them on the head. upon this she ran directly to mr. _clark_ the constable, the same who since apprehended me on the occasion of her death, to get me taken into custody. mrs. _clark_ kindly wiped her forehead where the skin was broke, and advised her to go home peaceably, and make up the difference between us. this enraged her so that she gave mrs. _clark_ many foul words, so that mr. _clark_ came to expostulate with me, not on the blow i had given my wife, but on the ill language she had bestowed on his wife! mr. _clark_ and i talked the matter over a tankard of beer, but i saw no more of my wife that night. "there was also one _stroud_, a _smith_, in the number of her intimates, but i knew little of their concerns, more than what i understood from his wife, who came frequently to me, enquiring after him, and complaining greatly of my wife, for enticing him away from his family and his work. "these few instances i have been able to recollect, may, in some measure, serve to give the reader of my unhappy tale, an idea of my wife's character and conduct, which i solemnly declare, i am not solicitous to expose, as the poor creature is dead, more than is absolutely needful, to shew what sort of person she was, and as it may tend to clear me in the opinion of the world. so quarrelsome was she by nature, that we never went out together, but she would find some occasion to abuse either me, some of the company, or even passengers in the street; if any one casually happened to brush her in passing, she would give them a blow in the face, and then call upon me to stand kick and cuff for her, while she having stirred up the mischief, ran away, unconcerned at my fate in the mob: and in our private disputes, i have been beat by her, her mother, and a servant girl of her mother's, all at one time. nay, she has frequently threatened both to destroy herself, and to murder me. a threat, she has since very nearly accomplished. "the night before this melancholy accident, i came home, to be sure not entirely sober: where not finding my wife, i went directly to her mother's, where i found her very drunk. it being night, her mother said it would not be proper to attempt taking her home in that condition; and therefore advised me to lie there that night, while she and her girl would go and sleep at my lodging. we did so. "being now come to the unlucky day of my wife's death, i propose to be as particular in all my actions that day as recollection will enable me. "in the morning, after my wife's mother came back, we all breakfasted together at her lodgings. after breakfast, i went to mr. _clark_, timber merchant, in _st. mary axe_, to solicit for some _india company's_ work: from whence i went to the _mansion house_ alehouse, and drank a pint of beer. i then intended to go to work at mr. _perry's_ in _noble-street_, but it being near dinner time, i stopped at the _bell_, opposite his house, for another pint of beer, where meeting some acquaintance eating beef-stakes, i dined with them. as i was eating, in came my wife and her mother; she at first abused me for being at the alehouse, but they afterward, in great seeming good humour, drank with me, and as they wanted money, i gave my wife two shillings, and lent her mother a six and ninepenny piece, which i had just received in change for half a guinea, from the master of the public house. as the day was now far spent, and as i was pleased with the prospect of working for the _east-india company_, i thought it not worth while to begin a day's work so late. i therefore went to _smithfield_, to see how the horse-market went. from thence i went to _warwick-lane_, to see for a young man, whom i had promised to get to work for the company also. i took him to mr. _clark_, in _st. mary axe_; and afterward went with him to two or three places more, the last place was the _nagg's head_ in _hounsditch_; and about half an hour after nine o'clock went home. "when i came there, i went in at the back door, which is under the gateway; and which used to be only on a single latch, for the conveniency of my lodgers: i went up to my room door, but finding it fast, came down stairs again. there was then some disturbance over the way in _aldersgate-street_, which i walked over to see the meaning of, imagining my wife might chance to be engaged in it. not finding her in the croud, i returned, and went up stairs again; while i was on the stairs, i heard my wife cough, by which i knew she was at home. finding my door still fast, i knocked and called again; still she would not answer. i then said "_sally_, i know you are at home, and i desire you would open the door, if you will not i will burst it open." nobody yet answering, i set my back against the door, and forced it open. upon this she jumped out of bed; i immediately began to undress me, by slipping off my coat and waistcoat, saying at the same time "_sally_, what makes you use me so? you follow me wherever i go to abuse me, and then lock me out of my lodging; i never serve you so." on this she flew upon me, called me a scoundrel dog, said she supposed i had been with some of my whores; and so saying, tore my shirt down from the bosom: on this, i pushed her down. she then ran to the chimney corner, and snatched up several things, which i successively wrested from her: in the skuffle a table and a screen tumbled down. at length she struck me several blows with a hand-brush; and while i was struggling to get it from her, she cried out several times----"indeed, indeed, i will do so no more."----when i got the brush from her, which i did with some difficulty, i gave her a blow with it, and then concluded she would be easy. she sat down on the floor by the cupboard door, tearing her shift from her back, which had been rent in the skirmish; i sat down on the opposite side of the bed, with my back towards her, preparing to go into it; and seeing her fling the remnants of her shift about in so mad a manner, i said, '_sally_, you are a silly girl, why don't you be easy?' on that she suddenly rose up, and with something gave me a blow on the head, which struck me down. i fell on the bedstead with my head against the folding doors of it. i imagine she was then afraid she had killed me, for i heard her cry two or three times----_o save me, save me, save me!_ how she went out of the window it is impossible for me to say, in the condition she left me in; but from her cries i supposed her gone that way; and in my consternation when i rose, i ran down one pair of stairs, where, not knowing how to behave, i went up again, and sat me down on the bed from whence i rose. in this position mr. _clark_, the constable, and the numbers who followed him, found me. he said, _daniels you have stabbed your wife, and flung her out of the window_. i replied, _no, mr. clark, i have not, she threw herself out_. mr. _clark_ took a candle, and examined all the room in search of blood, but found none; and lucky it was for me that neither of our noses happened to bleed in the fray, though mine was subject to bleed on any trifling occasion. he then went to the window, where he found a broken piece of a saucer, and asked what it was? i said, i did not know; but recollected afterward, that it was what i fed my squirrel in; though i know not how it came broke; it was whole that day. "from thence i was taken to the _compter_, and the public are already acquainted with the proceedings on my trial: when i was condemned for the supposed fact. "i am informed that the next morning they found a pair of small watchmaker's plyers bloody in the window, which were then considered as a great proof of my guilt. these plyers were what i have mended my squirrel's chain with whenever he broke loose, which was sometimes the case. how they should be bloody, as god is my saviour, i cannot answer; but as no wound was perceived on the body, they were not produced as evidence against me. however, when my wife was brought up from the street, it is said she was blooded, and that the bason was put in the window where these plyers were found. it is therefore possible that, in such confusion, a drop or two might accidentally be spilt upon them; more especially when we consider the tumult of a morning's exhibition of the dead body, for penny gratuities, by the unprincipled mother of it. "in the course of my trial, the coroner laid some stress on the absence of _charles hilliard_, the lodger under my room; but mr. _hilliard_ appeared however before the sessions were concluded, to save his recognizances: he then deposed before the judges, all he knew relative to the accident; which being materially the same with the evidence he gave at the coroner's inquest, and as i have no reason to wish it suppressed, i made it my business to request mr. _hilliard_ to recollect the whole of it, which he was kind enough to give me in writing; and here it is. "_charles hilliard_ gave evidence before the coroner as follows. "that mrs. _daniels_ came into his apartment about eight o'clock in the evening to light her candle, and then went up to bed: that about ten mr. _daniels_ came home, and knocked at the door, calling _sally_, two or three times: that not being admitted, he broke the door open: that then he thought he heard a knocking to make good the breach, after which some words ensued between the parties, and blows followed: that he heard mrs. _daniels_ ask forgiveness, saying, she would never do the like again: that _daniels_ should say--_damn my breeches, what do you shut me out for? don't i pay my rent?_ after which he heard a rumbling in the room, but did not distinguish any thing more, to the best of his knowledge, till mrs. _daniels_ fell from the window. "i lived in mr. _daniel's_ apartment but little time, in which i heard many quarrels and debates between them, which frequently happened by her aggravation and ill-treatment of him." "i was sentenced to be executed on _monday, september _; the coronation-day was to be the day following, which led some persons into a conjecture, that this august solemnity was the cause of the first respite, which made way for my pardon. this however was a mistaken opinion, for i owed the redemption from my hard fate entirely to the kind christian offices of my friends who, from a persuasion of my innocence, applied to the worthy magistrates of _london_; from whom, the circumstances of my situation were represented to his majesty. the gracious condescension of this best of kings, in attending to the representations made to him on my account, will never be forgotten, while i enjoy that remnant of life i now owe to his goodness! "i was condemned on the _friday_; on the _saturday_ i was comforted with the news of a respite until the _friday_ following: i then heard of a farther respite, and was appointed to die with _campbel_ and _gurnet_; before the execution of whom, i was again granted a longer time: and then my execution was to be forborn until farther orders. i received my pardon on _thursday, october _, and was discharged from confinement _sunday, november _. "from the time of receiving sentence, to the time of my receiving a full pardon was six weeks close confinement in the cells of _newgate_; where, by the terms of sentence, i was to be subsisted on bread and water only. i can however affirm with truth, that, conscious of my own integrity, not all the terrors of so ignominious a death, and the stamp of infamy attending it, ever could depress my spirits from the first to the last. i relied on the justice of god, who could penetrate beyond the ken of short-sighted man; and with the utmost reverence would i acknowledge the extension of his providence toward me, in protecting me in this life, from the consequences of premature judgment. i have been frail in common with the rest of mankind; and i have severely suffered. however, as my misfortunes in marriage drove me into carelessness and excesses, which, together with them, have been the ruin of me; i hope that so remarkable a deliverance from the brink of the precipice of eternity, has called home my scattered thoughts, and will make me more sober and industrious than i have heretofore been. i now conclude this narrative with the most thankful acknowledgments to all whose kindness has been instrumental in my deliverance, from the awful fate from which i so hardly escaped." the reader has now seen what the poor fellow had to offer for his own justification. it may not be improper just to add a few remarks, first, on the probabilities and improbabilities of the alledged fact, and then to compare the fair result of such examination with the tenor of the depositions on his trial; these will tend greatly to clear our conceptions with regard to the man. the window of _daniels's_ room has two casements folding against each other, with garden pots before them. one of these casements only, used to be opened; the other being in general kept shut. these casements were each about sixteen or seventeen inches wide, and the window was about a yard and a quarter high. when this accident happened, one casement was open, the other shut, as usual; consequently the opening _then_ through the window, was about sixteen or seventeen inches wide, and a yard and quarter high. through this space a man was to thrust a woman nearly as strong as himself! if such a thing had been attempted, the following consequences must be incontestably allowed to ensue. i. the woman would resist the attempt. ii. when persons struggle to avoid imminent danger, and are driven to despair, they are capable of a surprising degree of exertion, beyond their ordinary abilities. iii. this woman would therefore have continued in so narrow a gap a very considerable while before she could have been forced through, and would all that time have uttered cries, intreaties, and exclamations, too expressive of her situation to have been mistaken by the neighbours and spectators. iv. her resistance would have overturned the before-mentioned garden-pots, and would have shattered the glass of the casement that was shut, and even forced open, or broke the casement itself, which obstructed her passage. v. in breaking the glass of the window, her skin must have been greatly scratched and torn, and her limbs, naked as she was, have been otherwise greatly maimed and bruised. vi. the man who undertook to force her out, as he must have been greatly agitated himself by his passions; as he was very closely employed, on no very easy job; and as the actions of the suffering party cannot be supposed to be meerly defensive through the whole course of the fray; he must probably have been observed by some of the spectators at the instant of his effecting his purpose; and must positively have borne some very conspicuous marks of his helpmate's reciprocal assaults. the two first of these propositions will be universally granted. the third is contradicted by all the evidence on the trial, who unanimously agree, that the moment the woman was seen, she came through the window? and was only then heard to use expressions which _daniels_ accounts for better than any one else. in reply to the fourth, the pots were not discomposed, nor the window broke, except one pane; and it does not appear that even that pane might not have been broke before. in answer to the fifth; the body, by the evidence of the surgeon, did not appear to have received any other damage than the natural consequences of so great a fall. as to the last; the man was not seen at the window at all: and as to any wounds or bruises sustained by him, the constable, when asked, whether he saw the blow on his head, which he affirmed to be given him by his wife? declared he did not. but he was not asked whether he looked for it; a question, it may be presumed, he would have answered in the negative. in such a situation, it is to be concluded, the poor fellow was little heard and less regarded, concerning whatever he might alledge in his own behalf. a man may be stunned by a blow that might not perhaps exhibit any remarkable appearance; and had it been seen, his account of it would have weighed but little. it is not even probable, had he knocked this woman on the head first, that he could have sent the body through the window so compleatly, as either by fright, or design, she accomplished, herself. but that she came there living, is past doubt. to conclude: the evidence against this unfortunate man, was only presumptive at most; and upon clear scrutiny is really presumptive of _nothing_: so that as he is discharged by royal authority, so has he also a just claim to an acquittal in the minds of all judicious and candid people. _finis._ generously made available by the internet archive.) the trial of oscar wilde issued for private circulation only and limited to copies on japanese vellum and five hundred copies on handmade paper numbered from one to five hundred and fifty. no the trial of oscar wilde from the shorthand reports then gently scan your brither man, still gentler, sister woman, though they may gang a' kennin' wrang, to step aside is human. robt. burns. paris privately printed preface "_it is wrong for us during the greater part of the time to handle these questions with timidity and false shame, and to surround them with reticence and mystery. matters relating to sexual life ought to be studied without the introduction of moral prepossessions or of preconceived ideas. false shame is as hateful as frivolity. it is a matter of pressing concern to rid ourself of the old prejudice that we "sully our pens" by touching upon facts of this class. it is necessary at all costs to put aside our moral, esthetic, or religious personality, to regard facts of this nature merely as natural phenomena, with impartiality and a certain elevation of mind._" preface _i blame equally as much those who take it upon themselves to praise man, as those who make it their business to blame him, together with others who think that he should be perpetually amused; and only those can i approve who seek for truth with tear-filled eyes._ pascal. in "_de profundis_," that harmonious and last expression of the perfect artist, wilde seems, in a single page to have concentrated in guise of supreme confession, all the pain and passion that stirred and sobbed in his soul. "_this new life, as through my love of dante i like sometimes to call it, is of course no new life at all, but simply the continuance, by means of development, and evolution, of my former life. i remember when i was at oxford saying to one of my friends as we were strolling round magdalen's narrow bird-haunted walks one morning in the year before i took my degree, that i wanted to eat of the fruit of all the trees in the garden of the world, and that i was going out into the world with that passion in my soul. and so, indeed, i went out, and so i lived. my only mistake was that i confined myself so exclusively to the trees of what seemed to me the sun-lit side of the garden, and shunned the other side for its shadow and its gloom. failure, disgrace, poverty, sorrow, despair, suffering, tears even, the broken words that come from lips in pain, remorse that makes one walk on thorns, conscience that condemns, self-abasement that punishes, the misery that puts ashes on its head, the anguish that chooses sack-cloth for its raiment and into its own drink puts gall:--all these were things of which i was afraid. and as i had determined to know nothing of them, i was forced to taste each of them in turn, to feed on them, to have for a season, indeed no other food at all._" further on, he tells us that his dominant desire was to seek refuge in the deepest shade of the garden, for his mouth was full of the bitterness of the dead-sea fruit that he had tasted, adding that this tomb-like aroma was the befitting and necessary outcome of his preceding life of error. we are inclined to think he deceived himself. the day wherein he was at last compelled to face the horror of his tragical destiny his soul was tried beyond endurance. he strode deliberately, as he himself assures us, towards the gloomiest nook of the garden, inwardly trembling perhaps, but proud notwithstanding ... hoping against hope that the sun's rays would seek him out even there ... or in other words, that he would not cease to live that _bios theoretikos_, which he held to be the greatest ideal. "_from the high tower of thought we can look out at the world. calm, and self-centred, and complete, the æsthetic critic contemplates life, and no arrow drawn at a venture can pierce between the joints of his harness._" we all know what arrows struck him, arrows that he himself had sharpened, and that society had not forgotten to tip with poison. "neither his own heedlessness nor the envious and hypocritical anger of his enemies, nor the snobbish cruelty of social reprobation were the true cause of his misfortunes. it was he himself who, after a time of horrible anguish, consented to his punishment, with a sort of supercilious disdain for the weakness of human will, and out of a certain regard and unhealthy curiosity for the sportfulness of fate. here was a voluptuary seeking for torture and desiring pain after having wallowed in every sensual pleasure.... could such conduct have been due to aught else but sheer madness?" the true debauchee has no such object. he seeks only for pleasure and discounts beforehand the conditions that life dictates for the same; the conditions laid down containing no guarantee that the pleasure will be actually grasped except only in promise and anticipation. later, too proud to acknowledge his cruel disappointment, he will gravely assure us that the bitterness left in the bottom of the goblet whose wine he has quaffed, has indeed the sweet taste that he sought after. certain minds are satisfied with the fantasmagoria of their intelligence, whereas the voluptuary finds happiness only in the pleasure of realisation. in his heart he concocts for himself a prodigious mixture of sorrow and of joy, of suffering and of ecstacy, but the great world, wotting naught of this secret alchemy and judging only according to the facts which lie upon the surface, slices down to the same level, with the same stupid knife, the strange, beautiful flower, as well as the evil weed that grew apace. remy de gourmont said of the famous author, paul adam, that he was "a magnificent spectacle." wilde may be pronounced a painful problem. he seems to escape literary criticism in order to fall under the keen scalping knife of the analytical moralist, by the paradoxical fact of his apparently imperious purpose to hew out and fashion forth his life as a work of art. "save here and there, in _intentions_ and in his poems, the _poem of reading gaol_, nothing of his soul has he thrown into his books; he seemed to desire, one can almost postulate as a certainty, the stupendous tragedy that blasted his life. from the abyss where his flesh groaned in misery, his conscience hovered above him contemplating his woeful state whilst he thus became the spectator of his own death-throes."[ ] that is the reason why he stirs us so deeply. those who might be tempted to search in his work for an echo however feeble, of a new message to mankind, will be grievously disappointed. the technical cleverness of wilde is undeniable, but the magnificent dress in which he has clothed it appears to us to have been borrowed. he has brought us neither remedy nor poison; he leads us nowhere, but at the same time we are conscious that he has been everywhere. no companion of ours is he, but all the companions we hold dear he has known. true he sat at the feet of the wise men of greece in the gardens of academus, but the eurythmy of their gests fascinated him more than the soberness of their doctrines. dante he followed in all his subterranean travels and peregrinations, but all that he has to relate to us after his frightful journeyings is merely an ecstatic description of the highly-wrought scenery that he had witnessed. "i packed all my genius, said he, into my life, i have put only my talent into my works." unfaithful to the principle which he learnedly deduced in _intentions_, viz: that the undivided soul of a writer should incorporate itself in his work, even as shakespeare pushing aside the "_impulses that stirred so strongly within him that he had, as it were perforce, to suffer them to realize their energy, not on the lower plane of actual life, where they would have been trammelled and constrained and so made imperfect, but on that of the imaginative plane of art_," ... he came to confound the intensity of feeling with the calmness of beauty. possessed of a mind of rare culture, he nevertheless only evoked, when he touched art, harmonious vibrations perhaps, but vibrations which others, after all said and done, had already created before him. he succeeded in producing nothing more than a splendid and incomparable echo. the most that can be said is that the music he had in his soul he kept there, living all the time a crowded, ostentatious life, and distinguishing himself as a superlative conversationalist. be this as it may, posterity cannot judge us according to those possibilities of our nature which were never developed. however numerous may be the testimonies in our favour, she cannot pronounce excepting on the works, or at least, the materials left by the workman. it is this which renders so precarious the actor's fleeting glory, as it likewise dissipates the golden halo that hovers over the brilliant society _causeur_. nothing remains of mallarmé excepting a few cunningly wrought verses, inferior to the clearer and more profound poems of his great master, baudelaire. of wilde nothing will remain beyond his written works which are vastly inferior to his brilliant epigrammatic conversation. in our days, the master of repartee and the after-dinner speaker is fore-doomed to forgetfulness, for he always stands alone, and to gain applause has to talk down to and flatter lower-class audiences. no writer of blood-curdling melodramas, no weaver of newspaper novels is obliged to lower his talent so much as the professional wit. if the genius of mallarmé was obscured by the flatterers that surrounded him, how much more was wilde's talent overclouded by the would-be witty, shoddy-elegant, and cheaply-poetical society hangers-on, who covered him with incense? one of his devoted literary courtezans, who has written a life of wilde, which is nothing more than a rhapsodidal panegyric of his intimacy with the poet, tells us that the first attempts of the sparkling conversationalist were not at all successful in paris drawing-rooms. in the house of victor hugo seeing he had to let the veteran sleep out his nap whilst others among the guests slumbered also, he made up his mind to astonish them. he succeeded, but at what a cost! although he was a verse writer, most sincerely devoted to poetry and art, and one of the most emotional and sensitive and tender-hearted amongst modern wielders of the pen he succeeded only in gaining a reputation for artificiality. we all know his studied paradoxes, his five or six continually repeated tales, but we are tempted to forget the charming dreamer who was full of tenderness for everything in nature. "it is true that mallarmé has not written much, but all he has done is valuable. some of his verses are most beautiful whilst wilde seemed never to finish anything. the works of the english aesthete are very interesting, because they characterize his epoch; his pages are useful from a documentary point of view, but are not extraordinary from a literary standpoint. in the _duchess of padua_, he imitates hugo and sardou; the _picture of dorian grey_ was inspired by huysmans; _intentions_ is a _vade-mecum_ of symbolism, and all the ideas contained therein are to be found in mallarmé and villiers de l'isle-adam. as for wilde's poetry, it closely follows the lines laid down by swinburne. his most original composition is _poems in prose_. they give a correct idea of his home-chat, but not when he was at his best; that no doubt, is because the art of talking must always be inferior to any form of literary composition. thoughts properly set forth in print after due correction must always be more charming than a finely sketched idea hurriedly enunciated when conversing with a few disciples. in ordinary table-talk we meet nothing more than ghosts of new-born ideas fore-doomed to perish. the jokes of a wit seldom survive the speaker. when we quote the epigrams of wilde, it is as if we were exhibiting in a glass case, a collection of beautiful butterflies, whose wings have lost the brilliancy of their once gaudy colours. lively talk pleases, because of the man who utters it, and we are impressed also by the gestures which accompany his frothy discourse. what remains of the sprightly quips and anecdotes of such celebrated _hommes d'esprit_, as scholl, becque, barbey d'aurevilly! some stories of the xviiith. century have been transmitted to us by chamfort, but only because he carefully remodelled them by the aid of his clever pen."[ ] these opinions of rebell questionable though they may be, show us plainly something of the charm and the weakness of wilde. a perfect artist desiring to leave his mark on the temple-columns of fame must not live among his fellow men ambitious to taste the bitterness and the sweetness alike of every caress of existence, but submit himself pitilessly to the thraldom of the writing desk. some authors may produce masterpieces amidst the busy throng; but there are others who lose all power of creation unless they shut themselves up for a time and live severely by rote. when wilde was dragging out a wretched life in the sordid room of a cheap, furnished hotel, where he eventually died, did he ever remember while reading balzac by the flickering light of his one candle that the great master of french literature often sought solitude and wrestled for eighteen hours at a stretch with the demon of severe toil? did he ever repeat the doleful wail of the author of _la comédie humaine_ who was sometimes heard to exclaim in sad tones: "_i ought not to have done that.... i ought to have put black on white, black on white...._" few experiments are really necessary for the literary creator who seeks to analyse the stuff of which life is composed in order to dissolve for us all its elements and demonstrate its ever-present underlying essence. the romance writer must stand away from the crowd, if only for a time, and reflect deeply upon what he has seen and heard. the power of thought, to be free and fruitful, cannot flourish without the strength of ascetism. we must yield to that law which decrees that action may not be the twin-sister of dreams. those who live a life of pleasure can only give us colourless falsehoods when they try to depict sincerity of feeling. the confessions of sensualists resemble volcanic ashes. wilde himself gives us the key to his errors and his weakness: "_human life is the one thing worth investigating. compared to it there is nothing else of any value. it is true that as one watches life in its curious crucible of pain and pleasure, one cannot wear over one's face a mask of glass nor keep the sulphurous fumes from troubling the brain and making the imagination turbid with monstrous fancies and misshappen dreams. there are poisons so subtle that to know their properties one has to sicken of them. there are maladies so strange that one has to pass through them if one seeks to understand their nature. and yet what a great reward one receives! how wonderful the whole world becomes to one! to note the curious, hard logic of passion and the emotional, coloured life of the intellect--to observe where they meet, and where they separate, at what point they are in unison and at what point they are in discord--there is a delight in that! what matter what the cost is? one can never pay too high a price for any sensation._"[ ] the brain becomes dulled at this sport, which it would be illusory to call a study. he who uses his intellect to serve only his sensuality can produce nothing elaborate but what is artificial. such is the dilemma of wilde, whose collections of writings is like a painted stage-scene, mere garish canvas, behind which there is never anything substantial. "when i first saw wilde, he had not yet been seared by the brand of general reprobation. often i changed my opinion of him, but at first i felt the enthusiasm which young literary aspirants always feel for those who have made their mark; then the law-suit took place, followed by the dramatic thunderclap of a criminal prosecution; and my soul revolted as if some great iniquity had been consummated. later on, it seemed to me that the man of fashion had swallowed up the literary god, his baggage seemed light, and his brilliant butterfly-life had perhaps been of more importance to him than the small pile of volumes bearing his name. "to-day, i seem clearly to understand what sort of a man he was--extraordinary beyond a doubt; but never has artificial sentiment been so cunningly mingled with seemingly natural simplicity and pulsating pleasure in one and the same man."[ ] "_i must say to myself that i ruined myself and that nobody great or small can be ruined except by his own hand. i am quite ready to say so. i am trying to say so, though they may not think it at the present moment. this pitiless indictment i bring without pity against myself. terrible as was what the world did to me, what i did to myself was far more terrible still._ _i was a man who stood in symbolic relations to the art and culture of my age. i had realised this for myself at the very dawn of my manhood, and had forced my age to realise it afterwards. few men hold such a position in their own lifetime, and have it so acknowledged. it is usually discerned, if discerned at all, by the historian, or the critic, long after both the man and his age have passed away. with me it was different. i felt it myself, and made others feel it. byron was a symbolic figure, but his relations were the passion of his age and its weariness of passion. mine were to something more noble, more permanent, of more vital issue, of larger scope._ _the gods had given me almost everything. but i let myself be lured into long spells of senseless and sensual ease. i amused myself with being a_ flâneur, _a dandy, a man of fashion. i surrounded myself with the smaller natures and the meaner minds. i became the spendthrift of my own genius, and to waste an eternal youth gave me a curious joy. tired of being on the heights, i deliberately went to the depths in the search for new sensation. what the paradox was to me in the sphere of thought, perversity became to me in the sphere of passion. desire, at the end, was a malady, or a madness, or both. i grew careless of the lives of others. i took pleasure where it pleased me, and passed on. i forgot that every little action of the common day makes or unmakes character, and that therefore what one has done in the secret chamber one has some day to cry aloud on the housetop. i ceased to be lord over myself. i was no longer the captain of my soul, and did not know it. i allowed pleasure to dominate me. i ended in horrible disgrace. there is only one thing for me now, absolute humility._"[ ] this confession of irreparable defeat while being exceedingly dolorous, is unfortunately, rendered still further painful by other pages which contradict it, and almost tempt us to doubt its sincerity, in spite of the fact that wilde was always sincere for those who knew how to read between the lines and enter into his spirit. "there is no doubt that he was truly a most extraordinary man, endowed with striking originality, but a man who at the same time took more than uncommon care to hide his gifts under a cloak bought in some conventional bazaar which made a point of keeping abreast with the fashions of the day."[ ] what brought about his downfall was the mad idea that possessed him of the possibility of employing in the service of noble aspirations all, without exception, all the passions that moved and agitated his human soul. everyone of us is, no doubt, peopled at times with mysterious spirits, ephemeral apparitions, which like the wild beasts that christ long ago cast out of the gadarene swine, tear themselves to pieces in internecine warfare. it is with such soldiers as these, who very seldom obey the superior orders of the higher intellect, or desert and rebel against us at the opportune moment, that we are called upon to withstand the onslaught of a thousand enemies. wilde made the grand mistake of trying to understand them all. he believed that they were capable of adapting themselves to that powerful instinct which animated him, and which directed him, wherever he wandered or wherever he went, towards the spirit of beauty. this error lasted long enough perhaps to convince him of the power that was born in him, but unfortunately, the revelation of his error came too late. my object in this preface is not to write the life of wilde. i have only to do with the writer, for the man is yet too much alive and his wounds have scarcely ceased bleeding! in the presence of still living sorrow, crimson-tinged, respect commands us to stand bareheaded; before the scarred face of woe the voice is dumb; we should, above all, endeavour rather to ignore the accidents that thrust themselves into a life and try to discover the great, calm soul, beautiful in its melancholy, which though pained and suffering, has never ceased to be nobly inspired. to prove that this was true in the case of wilde, we may have recourse to some of those who knew him well and who form a great "cloud of witnesses," testifying to the veracity of the things we have laid down. mr. arthur symons, a keen and large-minded critic, a friend of wilde's, and an elegant and forcible writer to boot, in his recent volume: "_studies in prose and verse_," characterizes wilde as a "poet of attitudes," and we cannot do better than quote a few lines from the fine article which he consecrated to our author: "_when the "ballad of reading gaol" was published, he said, it seemed to some people that such a return to, or so startling a first acquaintance with, real things, was precisely what was most required to bring into relation, both with life and art an extraordinary talent so little in relation with matters of common experience, so fantastically alone in a region of intellectual abstractions. in this poem, where a style formed on other lines seems startled at finding itself used for such new purposes, we see a great spectacular intellect, to which, at last, pity and terror have come in their own person, and no longer as puppets in a play. in its sight, human life has always been something acted on the stage; a comedy in which it is the wise man's part to sit aside and laugh, but in which he may also disdainfully take part, as in a carnival, under any mask. the unbiassed, scornful intellect, to which humanity has never been a burden, comes now to be unable to sit aside and laugh, and it has worn and looked behind so many masks that there is nothing left desirable in illusion. having seen, as the artist sees, further than morality, but with so partial an eyesight as to have overlooked it on the way, it has come at length to discover morality in the only way left possible, for itself. and, like most of those who, having "thought themselves weary," have made the adventure of putting thought into action, it has had to discover it sorrowfully, at its own incalculable expense. and now, having become so newly acquainted with what is pitiful, and what seems most unjust, in the arrangement of human affairs, it has gone, not unnaturally, to an extreme, and taken, on the one hand, humanitarianism, on the other realism, at more than their just valuation, in matters of art. it is that odd instinct of the intellect, the necessity of carrying things to their furthest point of development, to be more logical than either life or art, two very wayward and illogical things, in which conclusions do not always follow from premises._ _his intellect was dramatic, and the whole man was not so much a personality as an attitude...._ _and it was precisely in his attitudes that he was most sincere. they represented his intentions; they stood for the better, unrealised part of himself. thus his attitude, towards life and towards art, was untouched by his conduct; his perfectly just and essentially dignified assertion of the artist's place in the world of thought and the place of beauty in the material world being in nowise invalidated by his own failure to create pure beauty or to become a quite honest artist. a talent so vividly at work as to be almost genius was incessantly urging him into action, mental action._ _realising as he did, that it is possible to be very watchfully cognisant of that "quality of our moments as they pass," and so shape them after one's own ideal much more continuously and consciously than most people have ever thought of trying to do, he made for himself many souls, souls of intricate pattern and elaborate colour, webbed into infinite tiny cells, each the home of a strange perfume, perhaps a poison. "every soul had its own secret, and was secluded from the soul which had gone before it or was to come after it. and this showman of souls was not always aware that he was juggling with real things, for to him they were no more than the coloured glass balls which the juggler keeps in the air, catching them one after another. for the most part the souls were content to be playthings; now and again they took a malicious revenge, and became so real that even the juggler was aware of it. but when they became too real he had to go on throwing them into the air and catching them, even though the skill of the game had lost its interest for him. but as he never lost his self-possession, his audience, the world, did not see the difference._"[ ] thus not wishing to live for himself, wilde was surprised into living mainly for others, and his ever-present desire to astonish was one of the prime causes that led to his overthrow. yet, in spite of this, what riches of the mind, one easily divines him to possess, if for a moment we peer beyond the mobile curtain of his paradoxes. those who listened to him, this modern st. chrysostom, on whose lips there was ever an ambiguous smile, could not fail to see that he spoke to himself, was occupied in translating that which was passing in his mind, trying in a sense, to ravish his auditors and plunge them even into greater, though only ephemeral, ravishment, whilst ushering them into an absolutely unreal and immaterial kingdom of capricious fantasy, and they will remember that he was sometimes astonishingly profound and grave, and always charming, paradoxical, and eloquent. his mind constantly dwelt upon the questions of art and aesthetics. in _intentions_ he laid down serious problems, which in themselves bore every appearance of contradiction, and which any attempt to resolve would, at the outset, appear puerile and ambitious. for instance:--is lying a fundamental principle of art, that is to say, of every art? is it possible for there to be perfect concordance between a finely ordered and pure life, and the worship of beauty; or, are we to consider such a consummation as utterly impossible and chimerical? must there be a permanent and necessary divorce between ethics and aesthetics? ought we, beneath the flowery mask of a borrowed smile, allow ourselves to be carried away by all the waves of instinct? the art of criticism, is it superior to art? the interpreter can he be superior to the creator? must we modify the profound axiom, "to understand is to equal," not by reducing it to that other axiom, more profound perhaps, "to understand is to achieve," but by modifying it with that, which, at the first glance looks at least passingly strange "to understand is to surpass?" such are the questions which wilde postulated in _intentions_ and worked out with great audacity, but with no higher object than to win admiration, and all this with the indifferent suppleness of a conjuror of words. _intentions_ is a study of artificial genius, culture, and instinct, and, for this reason, it forms a most curious production. in itself it can hardly be termed a magistral work, inasmuch as all the theories enunciated in it are, at least, twenty years old, and appear to us to-day quite worn out and decrepit. as much may be said, also, for the theories put forward by our young, contemporaneous artists who undertake to discuss all things in heaven and earth, and whose vapourings on life, nature, social art and other things--especially other things--are no more guaranteed against mortality than the doctrines above specified. let them remember, in reading wilde's work, that their aesthetical doctrines will soon become as antiquated, and that it is no bid for lasting fame to write flashy novels, pretty verses, high-flown or realistic dramas, pessimistic or optimistic plays, imbued with schopenhaurian and nitzschien principles, since the crying need of the time is for sincere work. all the doctrines ever invented are mere tittle-tattle, only fit to amuse brainless ladies wanting in beauty, or minds stricken with positive sterility. it is not inexact that in _intentions_ one meets with a profound truth now and again, but the dressing of it is so paradoxical that we run a risk of misinterpreting all that may animate it of genuine fitness and sincerity. wilde may truly be denominated the last representative of that english art of the xixth. century, which beginning with shelley, continuing with the pre-raphaelites and culminating with the american painter, whistler, endeavours purposely to set forth an ideal and elegant expression of the world. the mistake of these men lies in the belief that art was made for life; whereas it is, as a matter of fact, quite the contrary. life has no other value, except as subject-matter, for poet and painter. these are excentric theories, certainly, but then, what on earth, does it matter about theories? do not they serve the great artist to make his genius more puissant, and enable him to concentrate all his forces in the same direction by uniting instead of scattering them? with, or in spite of his theories, shelley wrote his poems and whistler painted his pictures; if their æsthetic basis was bad, one, at least, cannot pretend that it was dangerous, since it enabled them to accomplish their masterpieces. wilde, unfortunately, was an æsthete before he was a poet, and produced his works somewhat in the spirit of bravado. he had been told that he could not create aught of good: the reply, triumphant and crushing was, the _picture of dorian grey_. he is a literary problem; and in considering him, we are struck with the unwarranted corruption, by his acquaintances, of a fine artistic sensibility. the fashionable drawing-rooms of the west-end brought about his downfall, or rather, and it amounts to the same thing: his frank and undisguised desire to please and to dazzle them proved his undoing. possibly the same misfortune would have overtaken merimée, had it not been for his lofty and vigorous intelligence; as it was, he lost more than once, most precious time in composing "_chambres bleues_," when he was undoubtedly capable of producing another "_colomba_," and other variations of "_vases étrusques_." with all this, let us be thoroughly just; _intentions_ is far from containing anything but mere paradoxes. those that we find there are at any rate of very diverse kinds. some are pure verbal amusements, and may be thrust aside after the moment's attention that they snatched from our surprise. others belong to a nobler family of ideas and awaken in us the lasting and fecund astonishment of the paradox which is born sound and healthy, because it concerns a new truth. into the mental landscape, these paradoxes introduce that sudden change of perspective, which forces the mind to rise or to descend, and thus causes us to discover other horizons. what a grievous error would it be on our part not to feel something of that immense and exhaustive love of beauty which haunted the soul of wilde until the bitter end? however artificial his work may appear at the first glance, there is still sufficient left of the man which was incomparable. we instinctively feel that he belonged to the chosen race of those upon whom the "spirit of the hour" had laid his magic wand, and who give forth at the cunning touch of the magician some of the finest notes of which our stunted human nature is capable. men thus endowed, enjoy the rare privilege of being unable to proffer a single word, without our perceiving however confusedly, the splendid harmony of an almost universal accompaniment of ideas. the choir, their eyes fixed upon the eyes of the master-musician, follows his inspired gestures with jealous care, and seeks to interpret his every nod and movement. none but an artist could have written the admirable pages on shakespeare, greek art, and other elevated themes that are to be found in the works of oscar wilde. more than an artist was he, who noted down the suggestive thought: that the humility of the matter of a work of art is an element of culture. if therefore, we hear him exclaim that "thought is a sickness," we must bear in mind that this is simply an analysis of the phrase: "_we live in a period whose reading is too vast to allow it to become wise, and which thinks too much to be beautiful._" our eyes can no longer penetrate the esoteric meaning of the statues of the olden times, beautiful with glorified animality, and which have alas, become for us little more than the tongue-tied offspring of the inspiring god pan, dead beyond all hope of rebirth. our brains have become stupified through the heaviness of the flesh, and this, perhaps, because we have treated the flesh as a slave. "_the worship of the senses, wrote wilde, has often, and with much justice, been decried; men feeling a natural instinct of terror about passions and sensations that seem stronger than themselves, and that they are conscious of sharing with the less highly-organised forms of existence. but it is probable the true nature of the senses has never been understood, and that they have remained savage and animal merely because the world has sought to starve them into submission or to kill them by pain, instead of aiming at making them elements of a new spirituality, of which a fine instinct for beauty will be the dominant characteristic._"[ ] in these lines, we may perhaps find the key of a certain metamorphosis in the poet's life, before circe, that terrible sorceress, had passed his way. "_who knows not circe, the daughter of the sun, whose charmed cup whoever tasted lost his upright shape, and downward fell into a grovelling swine?_" (_milton: comus, - ._) the infant king of rome, we are told, looking out from a window of the louvre one day, at the muddy street where young children were playing,--sad in the midst of a perfumed and divinely flattering court,--cried out: "i too, would like to roll myself in that beautiful mud." we are inclined to think from a sentimental outlook, that wilde also had the same morbid desire; but, he was worth better things; and there were times in his life when serene aspirations moved his heart before he sat down to the festive board of sin. he had a pronounced tendency towards the _discipulat_; used to question youths about their studies and their mind, showing as much interest in them as a spiritual confessor, inebriating himself with their enthusiasm, and surrounding himself more and more with a medley of different friends. a vigorous pagan, ardent, intoxicated with souvenirs of antiquity, heart-sick of his worldly successes, he dreamed perhaps of living over again: _ces héröiques jours où les jeunes pensées allaient chercher leur miel aux lèvres d'un platon._ but this _artificiel de l'art_ was, although he wotted it not, a man who rioted in the good things of life. he sought to inculcate in himself a quiet spirit which believes itself invulnerable. "_and when we reach the true culture that is our aim, we attain to that perfection of which the saints have dreamed, the perfection of those to whom sin is impossible, not because they make the renunciations of the ascetic, but because they can do everything they wish without hurt to the soul, and can wish for nothing that can do the soul harm, the soul being an entity so divine that it is able to transform into elements of a richer experience, or a finer susceptibility, or a newer mode of thoughts, acts or passions that with the common would be commonplace, or with the uneducated ignoble, or with the shameful vile._"[ ] this passage shows us a state of things very far removed from the old dream of antiquity. he forgot, alas! the puritanism and sublime discourses of diotime, which have been so finely pictured for us by plato, to wallow in the orgies of the island of capria. before that criminal court, where he vainly struggled so as "not to appear naked before men," we hear him proclaim what he had himself desired and perhaps attained. what interpretation, asked the judge, can you give us of the verse: _i am the love which dares not tell its name_ "the love referred to," replied wilde, "is that which exists between a man of mature years and a young man; the love of david and of jonathan. it is the same love that plato made the basis of his philosophy; it is that love which is sung in the sonnets of shakespeare and of michael-angelo; it is a profound spiritual affection, as pure as it is perfect. it is beautiful, pure and noble; it is intellectual, the love of a man possessing full experience of life, and of a young man full of all the joy and all the hope of the future." there in that struggle in the midst of thick darkness, this must have been the cry of his tormented soul, a breath of pure air as he passed, a perfumed memory ... then there came a few arrow flights badly winged which only wounded his own heart. he defended himself in an indifferent way according to some people, although it must be admitted that he gave the answers that were necessary and becoming, and, in some cases, compelled his judges, who were no better than the mouth-pieces of the crowd, to confess the hatred that the worship of beauty had inspired. "however strange may have been his attitude, that attitude could not have been indifferent to anyone. those who have been fortunate enough to laugh at the portrait that rené boylesve has drawn of the æsthete in his fine novel "le parfum des iles borromées," would find it difficult to make a mock of the man who accepted with superb disinterestedness, the torture that he knew beforehand the judges would inevitably inflict upon him. although he may not have been a great poet, although the pretext of his equivocal mode of living was taken to condemn him, we cannot lose sight of the art and of the literary craftsman that were condemned at the same time with him."[ ] _we know no spectacle so ridiculous as the british public in one of its periodical fits of morality. in general, elopements, divorces, and family quarrels, pass with little notice. we read the scandal, talk about it for a day, and forget it. but once in six or seven years our virtue becomes outrageous. we cannot suffer the laws of religion and decency to be violated. we must make a stand against vice. we must teach libertines that the english people appreciate the importance of domestic ties. accordingly some unfortunate man, in no respect more depraved than hundreds whose offences have been treated with lenity, is singled out as an expiatory sacrifice. if he has children, they are to be taken from him. if he has a profession, he is to be driven from it. he is cut by the higher orders, and hissed by the lower. he is, in truth, a sort of whipping-boy, by whose vicarious agonies all the other transgressors of the same class are, it is supposed, sufficiently chastised._[ ] this bitter denunciation of english mock-modesty by the brilliant essayist rests upon thoroughly justifiable grounds. once again in the dolorous history of humanity, the grotesque farce was enacted of chasing forth the scapegoat into the wilderness to bear away the sins of the people. but, in this instance, the unhappy creature was not only laden with the sins of the tribe; a heavier burden still had been added to all the others: the fearful burden of the mad, unreasoned hatred of the sinners. indeed he, whose share in the general load of sin was the greatest, sought to add more hatred than all the others to the great fardel under which the victim staggered, and believing himself so much the more innocent that the abjection of the unfortunate wretch was complete, would have been glad had it been in his power to help even the public hangman in the execution of his nefarious task. we have observed that through some diabolical strain in human nature, the evil joy which creates scandal and gives rise to a man's downfall, increases in intensity if the victim happens to be a man of superior rank and talent. _on voit briller au fond des prunelles haineuses, l'orgueil mystérieux de souiller la beauté._ how great must have been the delighted intoxication of numberless weak minds when they were impelled, in the midst of a silence that braver and clearer spirits dared not break, to screech out vociferations against art and thought, denouncing these as the accomplices of the momentary aberrations of him who erstwhile worshipped at their shrine. here in france at least, men knew better how to restrain themselves, and there were even a few courageous wielders of talented pens who did not hesitate to use their abilities in favour of their anglo-saxon colleague. hugues rebell published in the _mercure de france_ that _défense d'oscar wilde_, the calm and tempered logic of which is still fresh to many minds. a number of writers and artists even held a meeting of protestation; but, of course, all this had not the slightest effect on the judicial position of wilde. it was generally felt that the ferocious outcry raised against the unhappy man "who had been found out" was because that man was a poet, and not so much because he had gone counter to the manners of his time. amongst all the mingled shouting and laughter, the arguments for and the arguments against, the voice of one man was heard stentorian and clear above all the rest, that voice belonged to octave mirbeau, a puissant master of the french tongue, and a brilliant writer and dramatist. the following lines of suppressed anger and large-minded charity emanated from his pen: "_a great deal has been heard about the paradoxes of oscar wilde upon art, beauty, conscience and life! paradoxes they were, it is true, and we know that some laid themselves open to the charge of exaggeration, and vaulted over the threshold of the forbidden. but after all, what is a paradox if not, for the most part of the time, the exaltation of an idea in a striking and superior form? as soon as an idea overleaps the low-level of ordinary popular understanding, having ceased to drag behind it the ignoble stumps gathered in the swamps of middle-class morality, and seeks with strong, steadfast wing, to attain the lofty heights of philosophy, literature or art, we at once stigmatize it as a paradox, because, unable ourselves to follow it into those regions which are inaccessible to us, through the weakness of our organs, and we make haste to scotch it and put it under ban by flinging after it curse-laden cries of blame and contempt._ _and yet, strange as it may seem, progress cannot be made save by way of paradox, whilst much vaunted common sense--the prized virtue of the imbecile--perpetuates the humdrum routine of daily life. the truth is, we refuse to allow anyone to come and outrage our intellectual sluggishness, or our morality, ready-made like second-hand clothes in a dealer's shop, or the stupid security of our sheepish preconceptions._ _looked at squarely, that was the veritable crime in the minds of those who sat in judgment on oscar wilde._ _they could not forgive him for being a thinker, and a man of superior intellect--and for that self-same reason eminently dangerous to other men. wilde is young and has a future before him, and he has proved by the strong and charming works which he has already given us that he can still do much more in the cause of beauty and art. must we not then admit that it is an abominable thing to risk the killing of something far above all laws, and all morality: the spirit of beauty, for the sake of repressing acts which are not really punishable_ per se. _for laws change and morality becomes transformed with the transformations of time, with the changeing of latitude and longitude, but beauty remains immaculate, and sheds her light far over the centuries that she alone can rescue from obscurity._" with these magnificent words of one of the great masters of french prose, we would gladly terminate the present study; but it remains for us to cite the following from the pen of our lately deceased friend, hugues rebell, who possessed not only acumen and erudition, but employed a brilliant style and ready wit in the expression of his thoughts: "will a day ever come, wrote he, when the deeds of men will be no more judged in the name of religion and morality, but from the point of view of their social importance? when the misdemeanours of a man of wit and of genius, or a clever, elegant man of fashion, shall no longer be judged by the same law as that which condemns a stolid navvy or a dockyard hand? far from believing in our much belauded progress, i am inclined alas, to think that we are really far behind our forefathers in tolerance, and above all in the ideas that govern our idea of social equality. the downfall of the sentiment of hierarchy seriously compromises the existence of some of the best men amongst us. it is not crime merely which is tracked and hounded down, but all that strays aside for a moment from every-day habits and customs. so-and-so, because he is not like other people inspires aversion, even horror on the part of those who take off their hats most respectfully to the successful swindler; and whilst the police complacently allow the perpetration in our great cities of robberies and murders, they make a raid on the unfortunate bookseller who happens to have stowed away carefully in his back-shop, a few illustrations where the high deeds and gestures of venus are too faithfully reproduced. these paltry persecutions would only serve to bring a smile to our lips were it not that everyone is more or less exposed to their arbitrary measures. men are far less free to-day than they formerly were, because they are too much dominated by a large number of ignorant and groundless prejudices. ferocious gaolers fetter and imprison their minds for their greater overthrow; no longer do they believe in god, whilst giving implicit faith to vain science which, making small account of the great diversity of character and temperament amongst human beings, holds up for unique example, a healthy and virtuous individual who never had any real existence except in the imagination of fools; and whilst no longer following any of the old religions, they submit themselves with equanimity to the condemnation of so-called human justice, which more often than not is radically venal, and impresses them far more than did in olden times, the ex-communicating _bulls_ of popes who had usurped the authority of god." as for the sentence of hard labour passed upon wilde, a description would fail to convey to the inexperienced reader a full idea of its barbarous severity. sir edward clarke, the counsel for the defense, gave substantially the following reply to the representative of a paris newspaper: "my opinion is that oscar wilde will work out his sentence. he has received the heaviest punishment that it was possible to inflict upon him. you cannot possibly form any notion of the extreme severity of "hard labour" which is implacable in its _régime_ of absorbing and exigent regularity. "oscar wilde, who wore his hair long like the esthete he was, was obliged to undergo the indignity of having it cut close, and wearing the sack-cloth suit bearing the broad-arrow mark of the convict. thrust into a small narrow cell with only a bed, or rather a wooden plank in guise of a bed, for all his furniture,--a bed without a matress, and with a bolster made of wood, this talented man was made to pass the long weary months of his martyrdom. "the "labour" given him to do was absolutely ridiculous for a man of his bent; first of all for a certain number of hours, he had to sit on a stool in his cell and disentangle and reduce to small quantities ship-rope of enormous size used for docking ocean liners, the only instruments allowed him to effect the work being a nail and his own fingers. the result of this painful and atrocious penitence was to tear and disfigure his hands beyond all hope. "after that he was conducted into a court where he had to displace a certain number of cannon-balls, carrying them from one place to another and arranging them in symmetrical piles. no sooner was this edifying labour terminated, than he had himself to undo it all and carry back the cannon-balls one by one to the place from whence he had first taken them. "then finally, he was made to work the tread-mill which is a harder task than those even that we have endeavoured faintly to describe. imagine if you can, an enormous wheel in the interior of which exist cunningly arranged winding steps. wilde, mounting on one of the steps, would immediately set the wheel in motion by the movement of his feet; then the steps follow each other under the feet in rapid and regular evolution, thus forcing the legs to a precipitous action which becomes laborious, enervating, and even maddening after a few minutes. but this enervating fatigue and suffering the convict is obliged to overcome, whilst continuing to move his legs for all they are worth, if he would escape being knocked down, caught up and thrown over, by the revolving movement of the wheel. this fantastical exercise lasts a quarter of an hour, and the wretch obliged to indulge in it, is allowed five minutes rest before the silly game recommences. "the convict is always kept apart and not allowed to speak even to his gaoler except at certain moments. all correspondence and reading is forbidden, save for the bible and prayer book placed at the head of the wooden plank, which serves him for a bed; and relatives are not admitted to see him excepting at the end of the year. "his food consists of meat and black bread, and of course only water is allowed. the meal-times take place at fixed hours, for naturally he has to follow a regular _régime_, in order to accomplish the hard labours that are incumbent upon him. "many of the convicts have been known to say, on coming out of prison, that they would have far more preferred to pass ten years in penal servitude than work out two years of hard labour. the moral suffering men like oscar wilde are forced to undergo is probably superior even to their physical distress, and i can only repeat that this labour is the severest which the laws of england impose." * * * * * wilde endured this martyrdom to the bitter end, the only favour allowed him being permission, towards the end of the time, to read a few books and to write. he read dante in his entirety, dwelling longer over the poet's description of hell than anything else, because here he recognized himself "at home." before the doors of the gaol had been bolted on him, he wrote with a pen that had been dipped in colourless ink, letters of tears, sobs and pains, which were issued to the world only after the unhappy man had winged his flight for another planet. those letters bear every mark of the deepest sincerity. they are not so much literature as the wail of a broken heart, which had attached itself to the only human affection he believed was still faithful to him. it is impossible to treat lightly the passionate anguish which refrains from expressing itself with the same intensity as the sorrows it had suffered, stricken with infinite sadness at the utter shipwreck of all hope and the cowardice of the human nature that had brought him to such low estate. that he should have conjured up the happy times he had seen decked out in all the charming graces of youth, and which smiled back his visage from the limpid mirror of his marvellously artistic intelligence, is only perfectly natural; and this evocation of happier times took on a new and horribly strange beauty, just as the feeblest ray of light stealing through prison walls gains in puissance from the sheer opacity of enveloping darkness. i will not stop here to enquire whether he found later the consolation he so much desired, a haven of peace in the friendship of the aristocratic adolescent, who had unwittingly caused him to become cast-a-way. it is highly probable that the bitter words which andré gide heard him utter, referred to that unfortunate intimacy: "no, he does not understand me; he can no longer understand me. i repeat to him in each letter; we can no more follow together the same path; you have yours, and it is certainly beautiful; and i have mine. his path is the path of alcibiade, whilst mine henceforth must be that of st. francis of assisi." his last most important work in prose: _de profundis_, which reveals him to us under an entirely different aspect, although, practically always the same man, shows that he is still engrossed with the perpetual love of attitudinizing, dreaming perhaps, that in spite of his sorrow and repentance, he will be able to take up again and sing, although in an humbler tone, the pagan hymn that had been strangled in his throat. in this connection, we cannot help thinking of the gesture of the great talma, who whilst he lay a-dying, although he knew it not, took the pendant skin of his thin neck, between his fingers, and said to those who stood around: "here is something which would suit finely to make up a visage for an old tiberius." it seems to us that the chief characteristic of wilde's book is not so much its admirable accent as its subtle irony, through which there seems to thrill the reply of destiny to the haughty resolutions that he had undertaken. it is as though death itself rose up from each page to sneer and chuckle at the master-singer; and few things are more bitter on the part of this poet--who had with his own hands ensepulchred himself as a willing holocaust to the deceitful gods of factitious art,--than the constant appeals that he makes to nature. the song no longer rings with the old regal note; there is none of the trepidating joy of a whitman, or the yielding sweetness of an emerson; our ear detects only the melopoeia of a heart which had been wounded in its innermost recess. "_i tremble with pleasure when i think that on the very day of my leaving prison both the laburnum and the lilac will be blooming in the gardens, and that i shall see the wind stir into restless beauty the swaying gold of the one, and make the other toss the pale purple of its plumes so that all the air shall be arabia for me._"[ ] these are the words of a convalescent; of a man newly risen from a bed of sickness anticipating a richer and fuller life, unknowing that the uplifted hand of death suspended just above him, was destined to strike him down at brief delay. in the darkness of his prison cell, he dreams of the mysterious herbs that he will find in the realms of nature; of the balms that he shall ferret out amongst the plants of the earth, and which will bring peace for his anguish, and deep-seated joy for the suffering that racked his brain. "_but nature, whose sweet rains fall on the unjust and just alike, will have clefts in the rocks where i may hide, and secret valleys in whose silence i may weep undisturbed. she will hang the night with stars so that i may walk abroad in the darkness without stumbling, and send the wind over my footprints so that none may track me to my hurt: she will cleanse me in great waters, and with bitter herbs make me whole._"[ ] in presence of this beautiful passage, it is painful to remember how his hopes were fated to be shattered by the cruellest of disappointments, and how he was doomed to die in the grey desolation of a poverty-haunted room. before drawing this notice to a close, it were not unfitting to recall another name, borne by a poet of wayward genius, who likewise wandered astray in a forest of more than dantean darkness, because the right way he had for ever lost from view. that poet was a poet of france, and the voice of his glory and the echo of the songs he chanted resounded with that proud and melodious note of genius which can never weary human ears. although this poet led a life which can be compared only to the life of oscar wilde, he belonged to an order of mentality which differs too greatly in its essential features to allow the accidents of the career of the two men being used as a basis for comparing them closely together on the intellectual plane. verlaine belonged to that race of poets who distinguish themselves by their perfect spontaneity; he was a veritable poet of instinct, and had heard voices which no other mortal had heard before him on earth. in place of the metallic verses of his predecessors, the verses that for the most part are spoken by linguistic artists, he created a sort of ethereal music, a song so sweet and so penetrating that it haunts us eternally like the low, passionate, whisperings of a lover's voice. he gave us more than royal largesse of a wonderful and delicious soul, that had no part or lot in time, a music that was created for his soul alone; and we have willingly forgotten many a haughtier voice for the bewitching strains that this baptised faun played for us with such artless joy on his forest-grown reed. the english poet was more complex and perhaps less sheerly human; and even his errors have no other origin than the perpetual effort to astonish us; whilst above all, that which staggers us most and stirs us so profoundly is that these self-same errors, which had come into life under such innocent conditions, became terribly real in virtue of that imperious law which compels certain minds to render their dreams incarnate. as for his work, however finely polished, however exquisite it may be and undoubtedly is, we have to confess that it has no power to move our souls into high passion and lofty endeavour; although it might easily have sufficed to conquer celebrity for more than one ambitious literary craftsman. but we feel, with regard to wilde, that we had a legitimate right to insist on the accomplishment of far greater things, a more sincere and genuine output, and are so much more dissatisfied because we clearly see the great discord between the man who palpitated with intense life, and the esthetic dandy whose cleverness overreached itself when he tried to work out that life on admittedly artificial lines. this extraordinary divorce between intelligence and will-power was that which gave rise to the striking drama of wilde's career; albeit the word drama looks strange and out of place, if applied only to the sorrow-filled period that crowned with thorns the latter end of his brilliant existence, if it be used for no other reason than to particularize the great catastrophe that took place in the sight of all the world. the fact is, the man's entire life was one perpetual drama. throughout the whole course of his existence, he persistently sought after and that with impunity, all sorts of excitants that could at last no longer be disguised under the name of experiences--and no doubt, others more terrible still that fall under no human laws, would have come finally to swell the ranks of their forerunners--and then, had the hand of destiny not arrested him in his course, he would have wound up by descending so low that the artistic life of his soul would have been forever extinguished. that, when all is said and done, would have been the veritable, the irremediable tragedy. fortunately, royal intellects such as these, can never utterly die, and therein consists their greatest chastisement. spasmodic movements agitate them, revealing beneath their mendacious laughter the secret agony of their souls; and we are suddenly called upon to witness the heart-rending spectacle of the slow death-agony of a haughty, talented poet, a petronius self-poisoned through fear of cæsar or a wilde whom a vicious and over-wrought public had only half assassinated, raising his poor, glazed eyes towards the marvellous light of truth, whose glorious vision, we know by the sure voice that comes "from the depths," he had caught at last.... * * * * * oscar wilde had desired to live a pagan's free and untramelled life in twentieth-century england, forgetful of the enormous fact that no longer may we live pagan-wise, for the shadow of the cross has shed a steadily increasing gloom over the conditions that enlivened the joyous existence of olden times. c. g. the trial of oscar wilde. "in all men's hearts a slumbering swine lies low", says the french poet; so come ye, whose porcine instincts have never been awakened, or if rampant successfully hidden, and hurl the biggest, sharpest stones you can lay your hands on at your wretched, degraded, humiliated brother, _who has been found out_. the trial of oscar wilde the life and death of oscar wilde, poet, playwright, _poseur_ and convict, can only fittingly be summarised as a tragedy. every misspent life is a tragedy more or less; but how much more tragic appear the elements of despair and disaster when the victim to his own vices is a man of genius exercising a considerable influence upon the thought and culture of his day, and possessing every advantage which birth, education, talent and station can bestow? oscar wilde was more than a clever and original thinker. he was the inventor of a certain literary style, and, though his methods, showy and eccentric as they were, lent themselves readily to imitation, none of his followers could approach their "master" in the particular mode which he had made his own. there can be two opinions as to the merits of his plays. there can be only one judgment as to their daring and audacious originality. of the ordinary and the commonplace wilde had a horror, which with him was almost a religion. he was unmercifully chaffed throughout america when he appeared in public in a light green suit adorned with a large sunflower; but he did not don this outrageous costume because he preferred such startling clothing. he adopted the dress in order to be original and assumed it because no other living man was likely to be so garbed. he was consumed, in fact, with overpowering vanity. he was possessed of a veritable demon of self-esteem. he ate strange foods, and drank unusual liquors in order to be unlike any of his contemporaries. his eccentricities of dress continued to the end. on the first night of one of his plays--it was a brilliant triumph--he was called upon by an enthusiastic audience for the customary speech. he was much exercised in his mind as to what he could say that would be unconventional and sensational. no mere platitudes or banalities for the author of "lady windermere's fan," who made a god of the spirit of epigram and almost canonized the art of repartee. he said, "ladies and gentlemen: i am glad you like my play. i like it very much myself too," which, if candid, was hardly the remark of a modest and retiring author. the leopard cannot change his spots and neither can the lion his skin. even in his beautiful book, "de profundis"--surely the most extraordinary volume of recent years--the man's character is writ so plainly that he who runs may read. man of letters, man of fashion, man of hideous vices, oscar wilde remained to the last moment of his murdered life, a self-conscious egotist. "gentlemen," he gasped on his death-bed, hearing the doctors express misgivings as to their fees, "it would appear that i am dying beyond my means!" it was a brilliant sally and one can picture the startled faces of the medical attendants. a genius lay a-dying and a genius he remained till the breath of life departed. genius we know to be closely allied to insanity and it were charitable to describe this man as mad, besides approaching very nearly to the truth. something was out of gear in that finely attuned mind. some thorn there was among the intellectual roses which made him what he was. he pined for strange passions, new sensations. his was the temperament of the roman sybarite. he often sighed for a return of the days when vice was deified. he spoke of the glories of the devastation, the awful woman and the alexandrian school at which little girls and young boys were instructed in all the most secret and unthinkable forms of vice. modern women satisfied him not. perverted passions consumed the fire of his being. he had had children of his wife, but sexual intercourse between him and that most unfortunate lady was more honoured in the breach than in the observance. they had their several rooms. on many occasions wilde actually brought the companions of his abominable rites and sinful joys to his own home, and indulged in his frightful propensities beneath the roof of the house which sheltered his own sons and their most unhappy mother. could the man capable of this atrocity possess a normal mind? can oscar wilde, who committed moral suicide and made of himself a social pariah, be regarded as a sane man? london society is not so strict nor straight-laced that it will not forgive much laxity in its devoted votaries. rumour had been busy with the name of oscar wilde for a long time before the whole awful truth became known. he was seen, constantly, at theatres and restaurants with persons in no way fit to be his associates and these persons were not girls or women. he paraded his shameful friendships and flaunted his villainous companions in society's face. people began to look askance at the famous wit. doors began to be closed to him. he was ostracised by all but the most bohemian coteries. but even those who were still proud to rank him among their friends did not know how far he had wilfully drawn himself into the web of disgrace. much that seemed strange and unaccountable was attributed to his well-known love of pose. men shrugged their shoulders and declared that "wilde meant no harm. it was his vainglorious way of showing his contempt for the opinion of the world. men of such parts could not be judged by ordinary standards. intellectually wilde was fit to mix with the immortals. if he preferred the society of miserable, beardless, stunted youths destitute alike of decency or honour--it was no affair of theirs," and so on _ad nauseam_. meanwhile, heedless of the warnings of friends and the sneers of foes, wilde went his own way--to destruction. he was addicted to the vice and crime of sodomy long before he formed a "friendship" which was destined to involve him in irretrievable ruin. in london, he met a younger son of the eccentric marquis of queensbury, lord alfred douglas by name. this youth was being educated at cambridge. he was of peculiar temperament and talented in a strong, frothy style. he was good-looking in an effeminate, lady-like way. he wrote verse. his poems not being of a manner which could be acceptable to a self-respecting publication, his efforts appeared in an eccentric and erratic magazine which was called "the chameleon." in this precious serial appeared a "poem" from the pen of lord alfred dedicated to his father in these filial words: "to the man i hate." oscar wilde at once developed an extraordinary and dangerous interest in this immature literary egg. a being of his own stamp, after his own heart, was lord alfred douglas. the love of women delighted him not. the possession of a young girl's person had no charm for him. he yearned for higher flights in the realms of love! he sought unnatural affection. wilde, experienced in all the symptoms of a disordered sexual fancy, contrived to exercise a remarkable and sinister influence over this youth. again and again and again did his father implore lord alfred douglas to separate himself from the tempter. lord queensberry threatened, persuaded, bribed, urged, cajoled: all to no purpose. wilde and his son were constantly together. the nature of their friendship became the talk of the town. it was proclaimed from the housetops. the marquis, determined to rescue him if it were humanly possible, horsewhipped his son in a public thoroughfare and was threatened with a summons for assault. on one occasion--it was the opening night of one of the wilde plays--he sent the author a bouquet of choice--vegetables! three or four times he wrote to him begging him to cancel his friendship with lord alfred. once he called at the house in tite street and there was a terrible scene. the marquis fumed; wilde laughed. he assured his lordship that only at his son's own request would he break off the association which existed between them. the marquis, driven to desperation, called wilde a disgusting name. the latter, with a show of wrath, ordered the peer from his door and he was obliged to leave. at all costs and hazards, at the risk of any pain and grief to himself, lord queensberry was determined to break off the disgraceful _liaison_. he stopped his son's allowance, but wilde had, at that time, plenty of money and his purse was his friend's. at last the father went to the length of leaving an insulting message for oscar wilde at that gentleman's club. he called there and asked for wilde. the clerk at the enquiry office stated that mr. wilde was not on the premises. the marquis then produced a card and wrote upon it in pencil these words, "oscar wilde is a bugger." this elegant missive he directed to be handed to the author when he should next appear at the club. from this card--lord queensberry's last resource--grew the whole great case, which amazed and horrified the world in . oscar wilde was compelled, however reluctantly, to take the matter up. had he remained quiescent under such a public affront, his career in england would have been at an end. he bowed to the inevitable and a libel action was prepared. one is often compelled to wonder if he foresaw the outcome. one asks oneself if he realized what defeat in this case would portend. the stakes were desperately high. he risked, in a court of law, his reputation, his position, his career and even his freedom. did he know what the end to it all would be? whatever wilde's fears and expectations were, his opponent did not under-estimate the importance of the issue. if he could not induce a jury of twelve of his fellow-countrymen to believe that the plaintiff was what he had termed him, he, the marquis of queensberry, would be himself disgraced. furthermore, there would, in the event of failure, be heavy damages to pay and the poor man was not over rich. wilde had many and powerful friends. for reasons which it is not necessary to enlarge upon, lord queensberry was not liked or respected by his own order. the ultimate knowledge that he was a father striving to save a loved son from infamy changed all that, and his lordship met with nothing but sympathy from the general public in the latter stages of the great case. sir edward clarke was retained for the plaintiff. it is needless to refer to the high estimation in which this legal and political luminary is held by all classes of society. from first to last he devoted himself to the lost cause of oscar wilde with a whole-hearted devotion which was beyond praise. the upshot of the libel action must have pained and disgusted him; yet he refused to abandon his client, and, in the two criminal trials, defended him with a splendid loyalty and with the marked ability that might be expected from such a counsel. the acute, energetic, silver-spoken mr. carson led on the other side. it is not necessary to make more than passing mention of the conspicuous skill with which the able lawyer conducted the case for the defendant. even the gifted plaintiff himself cut a sorry figure when opposed to mr. carson. extraordinary interest was displayed in the action; and the courts were besieged on each day that the trial lasted. remarkable revelations were expected and they were indeed forthcoming. enormous pains had been taken to provide a strong defence and it was quite clear almost after the first day that wilde's case would infallibly break down. he made some astonishing admissions in the witness-box and even disgusted many of his friends by the flippancy and affected unconcern of his replies to questions of the most damaging nature. he, apparently, saw nothing indecorous in facts which must shock any other than the most depraved. he saw nothing disgusting in friendships of a kind to which only one construction could be put. he gave expensive dinners to ex-barmen and the like: ignorant, brutish young fools--because they amused him! he presented youths of questionable moral character with silver cigarette-cases because their society was pleasant! he took young men to share his bedroom at hotels and saw nothing remarkable in such proceedings. he gave sums of thirty pounds to ill-bred youths--accomplished blackmailers--because they were hard-up and he felt they did not deserve poverty! he assisted other young men of a character equally undesirable, to go to america and received letters from them in which they addressed him as "dear oscar," and sent him their love. in short, his own statements damned him. out of his own mouth--and he posing all the time--was he convicted. the case could have but one ending. sir edward clarke--pained, surprised, shocked--consented to a verdict for the marquis of queensberry and the great libel case was at an end. the defendant left the court proudly erect, conscious that he had been the means of saving his son and of eradicating from society a canker which had been rotting it unnoticed, except by a few, for a very long time. oscar wilde left the court a ruined and despised man. people--there were one or two left who were loyal to him--turned aside from him with loathing. he had nodded to six or seven friends in court on the last day of the trial and turned ashen pale when he observed their averted looks. all was over for him. the little supper-parties with a few choice wits; the glorious intoxication of first-night applause; the orgies in the infamous dens of his boon companions--all these were no more for him. oscar wilde, _bon vivant_, man of letters, arbiter of literary fashion, stood at the bar of public opinion, a wretch guilty of crimes against which the body recoils and the mind revolts. oh! what a falling-off was there! * * * * * if any reader would care to know the impression made upon the opinion of the london world by the revelations of this lawsuit, let him turn to the "daily telegraph" of the morning following the dramatic result of the trial. in that great newspaper appeared a leading article in reference to oscar wilde, the terms of which, though deserved, were most scathing, denunciatory, and bitter. yet a general feeling of relief permeated the regret which was universally expressed at so terrible a termination of a distinguished career. society was at no pains to hide its relief that the augean stable has been cleansed and that a terrible scandal had been exorcised from its midst. it now becomes a necessary, albeit painful task, to describe the happenings incidental or subsequent to the wilde & queensberry proceedings. it was certain that matters could not be allowed to rest as they were. a jury in a public court had convinced themselves that lord queensberry's allegations were strictly true and the duty of the public prosecutor was truly clear. the law is not, or should not be, a respector of persons, and oscar wilde, genius though he were, was not less amenable to the law than would be any ignorant boor suspected of similar crimes. the machinery of legal process was set in action and the arrest of wilde followed as a matter of course. a prominent name in the libel action against lord queensberry had been that of one alfred taylor. this individual, besides being himself guilty of the most infamous practices, had, it would appear, for long acted as a sort of precursor for the apostle of culture and his capture took place at nearly the same time as that of his principal. the latter was arrested at a certain quiet and fashionable hotel whither he had gone with one or two yet loyal friends after the trial for libel. his arrest was not unexpected, of course; but it created a tremendous sensation and vast crowds collected at bow street police station and in the vicinity during the preliminary examinations before the magistrate. the prisoner wilde bore himself with some show of fortitude, but it was clear that the iron had already entered into his soul and his old air of jaunty indifference to the opinion of the world had plainly given way to a mental anxiety which could not altogether be hidden, though it could be controlled. on one occasion as, fur-coated, silk-hatted, he entered the dock, he nodded familiarly to the late sir augustus harris, but that magnate of the theatrical world deliberately turned his back upon the playwriting celebrity. the evidence from first to last was followed with the most intense interest and the end of it was that oscar wilde was fully committed for trial. the case came on at the old bailey during the month of april, , and it was seen that the interest had in no wise abated. mr. justice charles presided and he was accompanied by the customary retinue of corporation dignitaries. the court was crowded in every part and hundreds of people were unsuccessful in efforts to obtain admission. a reporter for a sunday newspaper wrote: "wilde's personal appearance has changed little since his committal from bow street. he wears the same clothes and continues to carry the same hat. he looks haggard and worn, and his long hair that was so carefully arranged when last he was in the court, though not then in the dock, is now dishevelled. taylor, on the other hand, still neatly dressed, appears not to have suffered from his enforced confinement. but he no longer attempts to regard the proceedings with that indifference which he affected when first before the magistrate." as soon as wilde and his confederate took their places in the dock, each held a whispered consultation with his counsel and the clerk of arraigns then read over the indictments. both prisoners pleaded "not guilty," taylor speaking in a loud and confident tone. wilde spoke quietly, looked very grave and gave attentive heed to the formal opening proceedings. mr. c. f. gill led for the prosecution and he rose amidst a breathless silence, to outline the main facts of the case. after begging the jury to dismiss from their minds anything that they might have heard or read in regard to the affair, and to abandon all prejudice on either side, he described at some length the circumstances which led up to the present prosecution. he spoke of the arrest and committal of the marquis of queensberry on a charge of criminal libel and of the collapse of the case for the prosecution when the case was heard at the old bailey. he alluded to the subsequent inevitable arrest of wilde and taylor and of the committal of both prisoners to take their trial at the present sessions. wilde, he said, was well-known as a dramatic author and generally, as a literary man of unusual attainments. he had resided, until his arrest, at a house in tite street, chelsea, where his wife lived with the children of the marriage. taylor had had numerous addresses, but for the time covered by these charges, had dwelt in little college street, and afterwards in chapel street. although wilde had a house in tite street, he had at different times occupied rooms in st. james's place, the savoy hotel and the albermarle hotel. it would be shown that wilde and taylor were in league for certain purposes and mr. gill then explained the specific allegations against the prisoners. wilde, he asserted, had not hesitated, soon after his first introduction to taylor, to explain to him to what purpose he wished to put their acquaintance. taylor was familiar with a number of young men who were in the habit of giving their bodies, or selling them, to other men for the purpose of sodomy. it appeared that there was a number of youths engaged in this abominable traffic and that one and all of them were known to taylor, who went about and sought out for them men of means who were willing to pay heavily for the indulgence of their favorite vice. mr. gill endeavoured to show that taylor himself was given to sodomy and that he had himself indulged in these filthy practices with the same youths as he agreed to procure for wilde. the visits of the latter to taylor's rooms were touched upon and the circumstances attending these visits were laid bare. on nearly every occasion when wilde called, a young man was present with whom he committed the act of sodomy. the names of various young men connected with these facts were mentioned in turn and the case of the two parkers was given as a sample of many others on which the learned counsel preferred to dwell with less minuteness. when taylor gave up his rooms in little college street and took up his abode in chapel street, he left behind him a number of compromising papers, which would be produced in evidence against the prisoners; and he should submit in due course that there was abundant corroboration of the statements of the youths involved. mr. gill pointed out the peculiarities in the case of frederick atkins. this youth had accompanied the prisoner wilde to paris, and there could be no doubt whatever that the latter had in the most systematic way endeavoured to influence this young man's mind towards vicious courses and had endeavoured to mould him to his own depraved will. the relations which had existed between the prisoner and another lad, one alfred wood, were also fully described and the learned counsel made special allusion to the remarkable manner in which wilde had lavished money upon wood prior to the departure of that youth for america. mr. gill referred to yet another of wilde's youthful familiars--namely: sidney mavor--in regard to whom, he said, the jury must form their own conclusions after they had heard the evidence. among other things to which he would ask them to direct careful attention was a letter written in pencil by taylor, the prisoner, to this youth. the communication ran: "dear sid, i cannot wait any longer. come at once and see oscar at tite street. i am, yours ever, alfred taylor." the use of the christian name of wilde in so familiar a way suggested the nature of the acquaintance which existed between mavor and wilde, who was old enough to be his father. in conclusion, mr. gill asked the jury to give the case, painful as it must necessarily be, their most earnest and careful consideration. both wilde and taylor paid keen attention to the opening statement. they exchanged no word together and it was observed that wilde kept as far apart from his companion in the dock, as he possibly could. the first witness called was charles parker. he proved to be a rather smartly-attired youth, fresh-coloured, and of course, clean-shaven. he was very pale and appeared uneasy. he stated that he had first met taylor at the st. james' restaurant. the latter had got into conversation with him and the young fellows with him, and had insisted on "standing" drinks. conversation of a certain nature passed between them. taylor called attention to the prostitutes who frequent piccadilly circus and remarked: "i can't understand sensible men wasting their money on painted trash like that. many do, though. but there are a few who know better. now, you could get money in a certain way easily enough, if you cared to." the witness had formerly been a valet and he was at this time out of employment. he understood to what taylor alluded and made a coarse reply. mr. gill.--"i am obliged to ask you what it was you actually said." witness.--"i do not like to say." mr. gill.--"you were less squeamish at the time, i daresay. i ask you for the words." witness.--"i said that if any old gentleman with money took a fancy to me, i was agreeable. i was terribly hard up." mr. gill.--"what did taylor say?" witness.--"he laughed and said that men far cleverer, richer and better than i preferred things of that kind." mr. gill.--"did taylor mention the prisoner wilde?" witness.--"not at that time. he arranged to meet me again and i consented." mr. gill.--"where did you first meet wilde?" witness.--"at the solferino restaurant." mr. gill.--"tell me what transpired." witness.--"taylor said he could introduce me to a man who was good for plenty of money. wilde came in later and i was formally introduced. dinner was served for four in a private room." mr. gill.--"who made the fourth?" witness.--"my brother, william parker. i had promised taylor that he should accompany me." mr. gill.--"what happened during dinner?" witness.--"there was plenty of champagne and brandy and coffee. we all partook of it." mr. gill.--"of what nature was the conversation?" witness.--"general, at first. nothing was then said as to the purposes for which we had come together." mr. gill.--"and then?" witness.--"wilde invited me to go to his rooms at the savoy hotel. only he and i went, leaving my brother and taylor behind. wilde and i went in a cab. at the savoy we went to his--wilde's--sitting-room." mr. gill.--"more drink was offered you there?" witness.--"yes; we had liqueurs." mr. gill.--"let us know what occurred." witness.--"he committed the act of sodomy upon me." mr. gill.--"with your consent?" the witness did not reply. further examined, he said that wilde on that occasion had given him two pounds and asked him to call upon him again a week later. he did so, the same thing occurred and wilde then gave him three pounds. the witness next described a visit to little college street, to taylor's rooms. wilde used to call there and the same thing occurred as at the savoy. for a fortnight or three weeks the witness lodged in park-walk, close to taylor's house. there too he was visited by wilde. the witness gave a detailed account of the disgusting proceedings there. he said, "i was asked by wilde to imagine that i was a woman and that he was my lover. i had to keep up this illusion. i used to sit on his knees and he used to play with my privates as a man might amuse himself with a girl." wilde insisted in this filthy make-believe being kept up. wilde gave him a silver cigarette case and a gold ring, both of which articles he pawned. the prisoner said, "i don't suppose boys are different to girls in acquiring presents from them who are fond of them." he remembered wilde having rooms at st. james's place and the witness visited him there. mr. gill.--"where else have you been with wilde?" witness.--"to kettner's restaurant." mr. gill.--"what happened there?" witness.--"we dined there. we always had a lot of wine. wilde would talk of poetry and art during dinner, and of the old roman days." mr. gill.--"on one occasion you proceeded from kettner's to wilde's house?" witness.--"yes. we went to tite street. it was very late at night. wilde let himself and me in with a latchkey. i remained the night, sleeping with the prisoner, and he himself let me out in the early morning before anyone was about." mr. gill.--"where else have you visited this man?" witness.--"at the albemarle hotel. the same thing happened then." mr. gill.--"where did your last interview take place?" witness.--"i last saw wilde in trafalgar square about nine months ago. he was in a hansom and saw me. he alighted from the hansom." mr. gill.--"what did he say?" witness.--"he said, 'well, you are looking as pretty as ever.' he did not ask me to go anywhere with him then." the witness went on to say that during the period of his acquaintance with wilde, he frequently saw taylor, and the latter quite understood and was aware of the motive of the acquaintance. at the little college street rooms he had frequently seen wood, atkins and scaife, and he knew that these youths were "in the same line, at the same game," as himself. in the august previous to this trial he was at a certain house in fitzroy square. orgies of the most disgraceful kind used to happen there. the police made a raid upon the premises and he and the taylors were arrested. from that time he had ceased all relationship with the latter. since that event he had enlisted, and while away in the country he was seen by someone representing lord queensberry and made a statement. the evidence of this witness created a great sensation in court, and it was increased when sir edward clarke rose to cross-examine. this began after the adjournment. sir edward clarke.--"when were you seen in the country in reference to this case?" witness.--"towards the end of march." sir edward.--"who saw you?" witness.--"mr. russell." sir edward.--"was there no examination before that?" witness.--"no." sir edward.--"did you state at bow street that you received £ not to say anything about a certain case?" witness.--"yes." sir edward.--"now, i do not ask you to give me the name of the gentleman from whom this money was extorted, but i ask you to give me the name of the agents." witness.--"wood & allen." sir edward.--"where were you living then?" witness.--"in cranford street." sir edward.--"when did the incident occur in consequence of which you received that £ ?" witness.--"about two weeks before." sir edward.--"where?" witness.--"at camera square." sir edward.--"i'll leave that question. you say positively that mr. wilde committed sodomy with you at the savoy?" witness.--"yes." sir edward.--"but you have been in the habit of accusing other gentlemen of the same offence?" witness.--"never, unless it has been done." sir edward.--"i submit that you blackmail gentlemen?" witness.--"no, sir, i have accepted money, but it has been offered to me to pay me for the offence. i have been solicited. i have never suggested this offence to gentlemen." sir edward.--"was the door locked during the time you describe?" witness.--"i do not think so. it was late and the prisoner told the waiter not to come up again." the next witness was william parker. this youth corroborated his brother's evidence. he said he was present at the dinner with taylor and wilde described by the last witness. wilde paid all his attention to his--witness's--brother. he, wilde, often fed his brother off his own fork or out of his own spoon. his brother accepted a preserved cherry from wilde's own mouth--he took it into his and this trick was repeated three or four times. his brother went off with the prisoner to his rooms at the savoy and the witness remained behind with taylor, who said, "your brother is lucky. oscar does not care what he pays if he fancies a chap." ellen grant was the landlady of the house in little college street at which taylor lodged. she gave evidence as to the visits of various lords and stated that wilde was a fairly frequent caller. he would remain for hours and one of the lads was generally closeted with him. once she tried the door and found it locked. she heard whispering and laughing and her suspicions were aroused though she did not like to take steps in the matter. lucy rumsby, who let a room to charles parker at chelsea, gave rather similar evidence, but wilde does not appear to have called there more than once and that occasion it was to take out parker, who went away with him. sophia gray, taylor's landlady in chapel street, also gave evidence. she amused the court by the emphatic and outspoken way in which she explained that she had no idea of the nature of what was going on. several young men were constantly calling upon taylor and were alone with him for a long time, but he used to say that they were clerks for whom he hoped to find employment. the prisoner wilde was a frequent visitor. but all this latter evidence paled as regards sinister significance beside that furnished by a young man named alfred wood. this young wretch admitted to acts of the grossest indecency with oscar wilde. he said, "wilde saw his influence to induce me to consent. he made me nearly drunk. he used to put his hand inside my trousers beneath the table at dinner and compel me to do the same to him. afterwards, i used to lie on a sofa with him. it was a long time, however, before i would allow him to actually do the act of sodomy. he gave me money to go to america." sir edward clarke submitted this self-disgraced witness to a very vigorous cross-examination. sir edward.--"what have you been doing since your return from america?" witness.--"well, i have not done much." sir edward.--"have you done anything?" witness.--"i have had no regular employment." sir edward.--"i thought not." witness.--"i could not get anything to do." sir edward.--"as a matter of fact, you have had no respectable work for over three years?" witness.--"well, no." sir edward.--"did not you, in conjunction with allen, succeed in getting £ from a gentleman?" witness.--"yes; but he was guilty with allen." sir edward.--"how much did you receive?" witness.--"i advised allen how to proceed. he gave me £ ." sir edward.--"who else got any of this money?" witness.--"parker. charles parker got some and also wood." thos. price was the next witness. this man was a waiter at a private hotel in st. james's and he testified to wilde's visits there and to the number of young men, "of quite inferior station," who called to see him. then came frank atkins, whose evidence is given in full. mr. avory.--"how old are you?" witness.--"i am years old." mr. avory.--"what is your business?" witness.--"i have been a billiard-marker." mr. avory.--"you are doing nothing now?" witness.--"no." mr. avory.--"who introduced you to wilde?" witness.--"i was introduced to him by schwabe in november, ." mr. avory.--"have you met lord alfred douglas?" witness.--"i have. i dined with him and wilde on several occasions. they pressed me to go to paris." mr. avory.--"you went with them?" witness.--"yes." mr. avory.--"you told wilde on one occasion while in paris that you had spent the previous night with a woman?" witness.--"no. i had arranged to meet a girl at the moulin rouge, and wilde told me not to go. however, i did go, but the woman was not there." mr. avory.--"you returned to london with wilde?" witness.--"yes." mr. avory.--"did he give you money?" witness.--"he gave me a cigarette-case." mr. avory.--"you were then the best of friends?" witness.--"he called me fred and i addressed him as oscar. we liked each other, but there was no harm in it." mr. avory.--"did you visit wilde on your return?" witness.--"yes, at tite street. wilde also called upon me at osnaburgh street. on the latter occasion one of the parkers was present." mr. avory.--"you know most of these youths. do you know sidney mavor?" witness.--"only by sight." sir edward clarke.--"were you ill at osnaburgh street?" witness.--"yes, i had small-pox and was removed to the hospital ship. before i went i wrote to parker asking him to write to wilde and request him to come and see me, and he did so." sir edward.--"you are sure you returned from paris with mr. wilde?" witness.--"yes." sir edward.--"did any impropriety ever take place between you and wilde?" witness.--"never." sir edward.--"have you ever lived with a man named burton?" witness.--"yes." sir edward.--"what was he?" witness.--"a bookmaker." sir edward.--"have you and this burton been engaged in the business of blackmailing?" witness.--"i have a professional name. i have sometimes called myself denny." sir edward.--"has this man burton, to your knowledge, obtained money from gentlemen by accusing them or threatening to accuse them of certain offences?" witness.--"not to my knowledge." sir edward.--"not in respect to a certain birmingham gentleman?" witness.--"no." sir edward.--"that being your answer, i must particularize. on june th, , did you and burton obtain a large sum of money from a birmingham gentleman?" witness.--"certainly not." sir edward.--"then i ask you if in june, ' , burton did not take rooms for you in tatchbrook street?" witness.--"yes; and he lived with me there." sir edward.--"you were in the habit of taking men home with you then?" witness.--"not for the purposes of blackmail." sir edward.--"well, for indecent purposes." witness.--"no." sir edward.--"give me the names of two or three of the people whom you have taken home to that address?" witness.--"i cannot. i forget them." sir edward.--"now i am going to ask you a direct question, and i ask you to be careful in your reply. were you and burton ever taken to rochester road police station?" witness.--"no." sir edward.--"well, was burton?" witness.--"i think not--at least, he was not, to my knowledge." sir edward.--"did the birmingham gentleman give to burton a cheque for £ drawn in the name of s. denis or denny, your own name?" witness.--"not to my knowledge." sir edward.--"about two years ago, did you and someone else go to the victoria hotel with two american gentlemen?" witness.--"no, i did not. never." sir edward.--"i think you did. be careful in your replies. did burton extort money from these gentlemen?" witness.--"i have never been there at all." sir edward.--"have you ever been to anderton's hotel and stayed a night with a gentleman, whom you threatened the next morning with exposure?" witness.--"i have not." sir edward.--"when did you go abroad with burton?" witness.--"i think in february, ." sir edward.--"when did you last go with him abroad?" witness.--"last spring." sir edward.--"how long were you away?" witness.--"oh! about a month." sir edward.--"where did you stay?" witness.--"we went to nice and stayed at gaze's hotel." sir edward.--"you were having a holiday?" witness.--"yes." sir edward.--"which you continued with business in your usual way?" the witness did not reply. sir edward.--"what were you and burton doing at nice?" witness.--"simply enjoying ourselves." sir edward.--"during this visit of enjoyment you and burton fell out, i think." witness.--"oh, dear, no!" sir edward.--"yet you separated from this burton after that visit?" witness.--"i gave up being a bookmaker's clerk." sir edward.--"what name did burton use in the ring?" witness.--"watson was his betting name." sir edward.--"did you blackmail a gentleman at nice?" witness.--"no." sir edward.--"are you sure there was no quarrel between you and burton at nice?" witness.--"there may have been a little one, but i don't remember anything of the kind." mr. grain then put some questions to the witness. mr. grain.--"did you go to scarbro' about a year ago?" witness.--"yes." mr. grain.--"did burton go with you?" witness.--"yes." mr. grain.--"what was your business there?" witness.--"i was engaged professionally. i sang at the aquarium there." mr. grain.--"did you get acquainted while there with a foreign gentleman, a count?" witness.--"not acquainted." at this moment mr. grain wrote a name on a piece of paper and handed it up to the witness, who read it. mr. grain.--"do you know that gentleman?" witness.--"no, i heard his name mentioned at scarborough." mr. grain.--"then you never spoke to him?" witness.--"no." mr. grain.--"was not a large sum--about £ --paid to you or burton by that gentleman about this time last year?" witness.--"no." mr. grain.--"had you any engagement at the scarborough aquarium?" witness.--"yes." mr. grain.--"how much did you receive a week?" witness.--"i was paid four pounds ten shillings." mr. grain.--"how long were you there?" witness.--"three weeks." mr. grain.--"have you ever lived in buckingham palace road?" witness.--"i have." mr. grain wrote at this stage on another slip of paper and it was handed up to the witness-box. mr. grain.--"look at that piece of paper. do you know the name written there?" witness.--"i never saw it before." mr. grain.--"when were you living in buckingham palace road?" witness.--"in ." mr. grain.--"do you remember being introduced to an elderly man in the city?" witness.--"no." mr. grain.--"did you take him to your room, permit him to commit sodomy with and upon you, rob him of his pocket-book and threaten him with exposure if he complained?" witness.--"no." mr. grain.--"did you threaten to extort money from him because he had agreed to accompany you home for a foul purpose?" witness.--"no." mr. grain.--"did you ever stay at a place in the suburbs on the south western railway with burton?" witness.--"no." mr. grain.--"what other addresses have you had in london during the last three years?" witness.--"none but those i have told you." this concluded the evidence of this witness for the time being. mary applegate, employed as a housekeeper at osnaburgh street, said atkins used to lodge there and left about a month ago. wilde visited him at this house on two occasions that she was cognisant of. she stated that one of the housemaids came to her and complained of the state of the sheets of the bed in which atkins slept after wilde's first visit. the sheets were stained in a peculiar way. it may be explained here, in order to make the witness's evidence understood, that the sodomistic act has much the same effect as an enema inserted up the rectum. there is an almost immediate discharge, though not, of course, to the extent produced by the enema operation. the next witness called was sidney mavor, a smooth-faced young fellow with dark hair and eyes. he stated that he was now in partnership with a friend in the city. he first made the acquaintance of the prisoner taylor at the gaiety theatre in . he afterwards visited him at little college street. taylor was very civil and friendly and introduced him to different people. the witness did not think at that time that taylor had any ulterior designs. one day, however, taylor said to him, "i know a man, in an influential position, who could be of great use to you, mavor. he likes young men when they're modest and nice in manners and appearance. i'll introduce you." it was arranged that they should dine at kettner's restaurant the next evening. he called for taylor, who said, "i am glad you've made yourself pretty. mr. wilde likes nice, clean boys." that was the first time wilde's name was mentioned. arrived at the restaurant, they were shown into a private room. a man named schwabe and wilde and another gentleman came in later. he believed the other gentleman to be lord alfred douglas. the conversation at dinner was, the witness thought, peculiar, but he knew wilde was a bohemian and he did not think the talk strange. he was placed next to wilde, who used occasionally to pull his ear or chuck him under the chin, but he did nothing that was actually objectionable. he, wilde, said to taylor, "our little lad has pleasing manners; we must see more of him." wilde took his address and the witness soon after received a silver cigarette-case inscribed "sidney, from o. w. october ." "it was," said the innocent-looking witness, "quite a surprise to me!" in the same month he received a letter making an appointment at the albemarle hotel and he went there and saw wilde. the witness explained that after he saw mr. russell, the solicitor, on march th, he did not visit taylor, nor did he receive a letter from taylor. sir edward clarke.--"with regard to a certain dinner at which you were present. was the gentleman who gave the dinner of some social position?" witness.--"yes." mr. grain.--"taylor sent or gave you some cheques, i believe?" witness.--"he did." mr. grain.--"were they in payment of money you had advanced to him, merely?" witness.--"yes." mr. c. f. gill.--"the gentleman--'of position'--who gave the dinner was quite a young man, was he not?" witness.--"yes." mr. gill.--"was taylor, and wilde also, present?" witness.--"yes." mr. gill.--"in fact, it was their first meeting, was it not?" witness.--"so i understand." mavor being dismissed from the box, edward shelley was the next witness. he gave his age as twenty-one and said that in he was employed by a firm of publishers in vigo street. at that time wilde's books were being published by that firm. wilde was in the habit of coming to the firm's place of business and he seemed to take note of the witness and generally stopped and spoke to him for a few moments. as wilde was leaving vigo street one day he invited him to dine with him at the albemarle hotel. the witness kept the appointment--he was proud of the invitation--and they dined together in a public room. wilde was very kind and attentive, pressed witness to drink, said he could get him on and finally invited him to go with him to brighton, cromer, and paris. the witness did not go. wilde made him a present of a set of his writings, including the notorious and objectionable "dorian gray." wilde wrote something in the books. "to one i like well," or something to that effect, but the witness removed the pages bearing the inscription. he only did that after the decision in the queenberry case. he was ashamed of the inscriptions and felt that they were open to misconception. his father objected to his friendship with wilde. at first the witness thought that the latter was a kind of philanthropist, fond of youth and eager to be of assistance to young men of any promise. certain speeches and actions on the part of wilde caused him to alter this opinion. pressed as to the nature of the actions he complained of, he said that wilde once kissed him and put his arms round him. the witness objected vigorously, according to his own statement, and wilde later said he was sorry and that he had drank too much wine. about two years ago--in --he wrote a certain letter to wilde. sir edward clarke.--"on what subject?" witness.--"it was to break off the acquaintance." sir edward.--"how did the letter begin?" witness.--"it began 'sir'." sir edward.--"give me the gist of it." witness.--"i believe i said i have suffered more from my acquaintance with you than you are ever likely to know of. i further said that he was an immoral man, and that i would never, if i could help it, see him again." sir edward.--"did you ever see him again after that?" witness.--"i did." sir edward.--"why did you go and dine with mr. wilde a second time?" witness.--"i suppose i was a young fool. i tried to think the best of him." sir edward.--"you seem to have put the worst possible construction on his liking for you. did your friendly relations with mr. wilde remain unbroken until the time you wrote that letter in march, ?" witness.--"yes." sir edward.--"have you seen mr. wilde since then?" witness.--"yes." sir edward.--"after that letter?" witness.--"yes." sir edward.--"where did you see him?" witness.--"i went to see him in tite street." sir edward clarke then proceeded to question the witness with regard to letters which he had written to wilde both before and after the visits to the albemarle hotel, and in the course of his replies the witness said that he formed the opinion that "wilde was really sorry for what he had done." sir edward clarke.--"what do you mean by 'what he had done'?" witness.--"his improper behaviour with young men." sir edward.--"yet you say he never practised any actual improprieties upon you?" witness.--"because he saw that i would never allow anything of the kind. he did not disguise from me what he wanted, or what his usual customs with young men were." sir edward.--"yet you wrote him grateful letters breathing apparent friendship?" witness.--"for the reason i have given." sir edward.--"well, we'll leave that question. now, tell me, why did you leave the vigo street firm of publishers?" witness.--"because it got to be known that i was friendly with oscar wilde." sir edward.--"did you leave the firm of your own accord?" witness.--"yes." sir edward.--"why?" witness.--"people employed there--my fellow-clerks--chaffed me about my acquaintance with wilde." sir edward.--"in what way?" witness.--"they implied scandalous things. they called me 'mrs. wilde' and 'miss oscar.'" sir edward.--"so you left?" witness.--"i resolved to put an end to an intolerable position." sir edward.--"you were in bad odour at home too, i think?" witness.--"yes, a little." sir edward.--"i put it to you that your father requested you to leave his house?" witness.--"yes. he strongly objected to my friendship with wilde." sir edward.--"you were uneasy in your mind as to wilde's object?" witness.--"that is so." sir edward.--"when did your mental balance, if i can put it so, recover itself?" witness.--"about october or november last." sir edward.--"and have you remained well ever since?" witness.--"i think so." sir edward.--"yet i find that in january of this year you were in serious trouble?" witness.--"in what way?" sir edward.--"you were arrested for an assault upon your father?" witness.--"yes, i was." sir edward.--"where were you taken?" witness.--"to the fulham police station." sir edward.--"you were offered bail?" witness.--"yes." sir edward.--"did you send to wilde and ask him to bail you out?" witness.--"yes." sir edward.--"what happened?" witness.--"in an hour my father went to the station and i was liberated." this witness now being released, the previous witness, atkins, was recalled and a very sensational incident arose. during the luncheon interval, mr. robert humphreys, wilde's solicitor, had been busy. not satisfied with atkins's replies to the questions put to him in cross-examination, he had searched the records at scotland yard and rochester road and made some startling discoveries. a folded document was handed up to the judge. mr. justice charles, who read it at once, assumed a severe expression. the document was understood to be a copy of a record from rochester road. atkins, looking very sheepish and uncomfortable, re-entered the witness-box and the court prepared itself for some startling disclosures. sir edward clarke.--"now, i warn you to attend and to be very careful. i am going to ask you a question; think before you reply." the judge.--"just be careful now, atkins." sir edward.--"on june th, , you were living at tatchbrook street?" witness.--"yes." sir edward.--"in pimlico?" witness.--"yes." sir edward.--"james burton was living there with you?" witness.--"he was." sir edward.--"were you both taken by two constables, a & a--you may have forgotten the officer's numbers--to rochester road police station and charged with demanding money from a gentleman with menaces. you had threatened to accuse him of a disgusting offence?" witness.--(huskily)--"i was not charged with that." sir edward.--"were you taken to the police station?" witness.--"yes." sir edward.--"you, and burton?" witness.--"yes." sir edward.--"what were you charged with?" witness.--"with striking a gentleman." sir edward.--"in what place was it alleged this happened?" witness.--"at the card-table." sir edward.--"in your own room at tatchbrook street?" witness.--"yes." sir edward.--"what was the name of the gentleman?" witness.--"i don't know." sir edward.--"how long had you known him?" witness.--"only that night." sir edward.--"where had you met him?" witness.--"at the alhambra." sir edward.--"had you seen him before that time?" witness.--"not to speak to." sir edward.--"meeting him at the alhambra, did he accompany you to tatchbrook street?" witness.--"yes, to play cards." sir edward.--"not to accuse him, when there, of attempting to indecently handle you?" witness.--"no." sir edward.--"was burton there?" witness.--"yes." sir edward.--"anyone else?" witness.--"i don't think so." sir edward.--"was the gentleman sober?" witness.--"oh, yes." sir edward.--"what room did you go into?" witness.--"the sitting-room." sir edward.--"who called the police?" witness.--"i don't know." sir edward.--"the landlady, perhaps?" witness.--"i believe she did." sir edward.--"did the landlady give you and burton into custody?" witness.--"no; nobody did." sir edward.--"some person must have done. who did?" witness.--"all i can say is, i did not hear anybody." sir edward.--"at any rate you were taken to rochester road, and the gentleman went with you?" witness.--"yes." police constable a was here called into court and took up a position close to the witness-box. he gazed curiously at atkins, who wriggled about and eyed him uneasily. sir edward.--"now i ask you in the presence of this officer, was the statement made at the police-station that you and the gentleman had been in bed together?" witness.--"i don't think so." sir edward.--"think before you speak; it will be better for you. did not the landlady actually come into the room and see you and the gentleman naked on or in the bed together?" witness.--"i don't remember that she did." sir edward.--"you may as well tell me about it. you know. was that statement made?" witness.--"well, yes it was." sir edward.--"you had endeavoured to force money out of this gentleman?" witness.--"i asked him for some money." sir edward.--"at the police-station the gentleman refused to prosecute?" witness.--"yes." sir edward.--"so you and burton were liberated?" witness.--"yes." sir edward.--"about two hours ago, atkins, i asked you these very questions and you swore upon your oath that you had not been in custody at all, and had never been taken to rochester road police station. how came you to tell me those lies?" witness.--"i did not remember it." atkins looked somewhat crestfallen and abashed. yet some of his former brazen impudence still gleamed upon his now scarlet face. he heaved a deep sigh of relief when told to leave the court by the judge, who pointed sternly to the doorway. of all the creatures associated with wilde in these affairs, this atkins was the lowest and most contemptible. for some years he had been in the habit of blackmailing men whom he knew to be inclined to perverted sexual vices, and his was a well-known figure up west. he constantly frequented the promenades of the music-halls. he "made up" his eyes and lips, wore corsets and affected an effeminate air. he was an infallible judge of the class of man he wished to meet and rarely made a mistake. he would follow a likely subject about, stumble against him as though by accident and make an elaborate apology in mincing, female tones. once in conversation with his "mark," he speedily contrived to make the latter aware that he did not object to certain proposals. he invariably permitted the beastly act before attempting blackmail, partly because it afforded him a stronger hold over his "victim" and partly because he rejoiced in the disgusting thing for its own sake. he was the butt of the ladies of the pavement round piccadilly circus, who used to shout after him, enquire sarcastically "if he had got off last night," and if his "toff hadn't bilked him." he would affect to laugh and pass the thing off with a joke; but, to his intimates, he assumed a great loathing for women of this class, whom he appeared to regard as dangerous obstacles to the exercise of his own foul trade. on several occasions he was assaulted by these women. to return to the trial of wilde and taylor. as soon as the enquiry was resumed, mr. charles mathews went down into the cells and had an interview with the prisoner wilde, and on his return entered into serious consultation with his leader, sir edward clarke. in the meanwhile, taylor conversed with his counsel, mr. grain, across the rail of the dock. it was felt that an important announcement bearing on the conduct of the case was likely to be made. it came from mr. gill, representing the prosecution. as soon as mr. justice charles had taken his seat, the prosecuting counsel rose and said that having considered the indictment, he had decided not to ask for a verdict in the two counts charging the prisoners with conspiracy. subdued expressions of surprise were audible from the public gallery when mr. gill delivered himself of this dramatic announcement, and the sensation was strengthened a little later when sir edward clarke informed the jury that both the prisoners desired to give evidence and would be called as witnesses. these matters having been determined upon, sir edward clarke rose and proceeded to make some severe criticisms upon the conduct of the prosecution in what he referred to as the literary part of the case. hidden meanings, he said, had been most unjustly "read" into the poetical and prose works of his client and it seemed that an endeavour, though a futile one, was to be made to convict mr. wilde because of a prurient construction which had been placed by his enemies upon certain of his works. he alluded particularly to "dorian gray," which was an allegory, pure and simple. according to the rather musty and far-fetched notions of the prosecution, it was an impure and simple allegory, but wilde could not fairly be judged, he said, by the standards of other men, for he was a literary eccentric, though intellectually a giant, and he did not profess to be guided by the same sentiments as animated other and less highly-endowed men. he then called mr. wilde. the prisoner rose with seeming alacrity from his place in the dock, walked with a firm tread and dignified demeanour to the witness-box, and leaning across the rail in the same easy and not ungraceful attitude that he assumed when examined by mr. carson in the libel action, prepared to answer the questions addressed to him by his counsel. wilde was first interrogated as to his previous career. in the year , he had married a miss lloyd, and from that time to the present he had continued to live with his wife at , tite street, chelsea. he also occupied rooms in st. james's place, which were rented for the purposes of his literary labours, as it was quite impossible to secure quiet and mental repose at his own house, when his two young sons were at home. he had heard the evidence in this case against himself, and asserted that there was no shadow of a foundation for the charges of indecent behaviour alleged against himself. mr. gill then rose to cross-examine and the court at once became on the _qui vive_. wilde seemed perfectly calm and did not change his attitude, or tone of polite deprecation. mr. gill.--"you are acquainted with a publication entitled 'the chameleon'?" witness.--"very well indeed." mr. gill.--"contributors to that journal are friends of yours?" witness.--"that is so." mr. gill.--"i believe that lord alfred douglas was a frequent contributor?" witness.--"hardly that, i think. he wrote some verses occasionally for the 'chameleon,' and, indeed, for other papers." mr. gill.--"the poems in question were somewhat peculiar?" witness.--"they certainly were not mere commonplaces like so much that is labelled poetry." mr. gill.--"the tone of them met with your critical approval?" witness.--"it was not for me to approve or disapprove. i leave that to the reviews." mr. gill.--"at the trial queensberry and wilde you described them as 'beautiful poems'?" witness.--"i said something tantamount to that. the verses were original in theme and construction, and i admired them." mr. gill.--"in one of the sonnets by lord a. douglas a peculiar use is made of the word 'shame'?" witness.--"i have noticed the line you refer to." mr. gill.--"what significance would you attach to the use of that word in connection with the idea of the poem?" witness.--"i can hardly take it upon myself to explain the thoughts of another man." mr. gill.--"you were remarkably friendly with the author? perhaps he vouchsafed you an explanation?" witness.--"on one occasion he did." mr. gill.--"i should like to hear it." witness.--"lord alfred explained that the word 'shame' was used in the sense of modesty, _i. e._ to feel shame or not to feel shame." mr. gill.--"you can, perhaps, understand that such verses as these would not be acceptable to the reader with an ordinarily balanced mind?" witness.--"i am not prepared to say. it appears to me to be a question of taste, temperament and individuality. i should say that one man's poetry is another man's poison!" (loud laughter.) mr. gill.--"i daresay! there is another sonnet. what construction can be put on the line, 'i am the love that dare not speak its name'?" witness.--"i think the writer's meaning is quite unambiguous. the love he alluded to was that between an elder and younger man, as between david and jonathan; such love as plato made the basis of his philosophy; such as was sung in the sonnets of shakespeare and michael angelo; that deep spiritual affection that was as pure as it was perfect. it pervaded great works of art like those of michael angelo and shakespeare. such as 'passeth the love of woman.' it was beautiful, it was pure, it was noble, it was intellectual--this love of an elder man with his experience of life, and the younger with all the joy and hope of life before him." the witness made this speech with great emphasis and some signs of emotion, and there came from the gallery, at its conclusion, a medley of applause and hisses which his lordship at once ordered to be suppressed. mr. gill.--"i wish to call your attention to the style of your correspondence with lord a. douglas." witness.--"i am ready. i am never ashamed of the style of any of my writings." mr. gill.--"you are fortunate--or shall i say shameless? i refer to passages in two letters in particular." witness.--"kindly quote them." mr. gill.--"in letter number one. you use this expression: 'your slim gilt soul,' and you refer to lord alfred's "rose-leaf lips." witness.--"the letter is really a sort of prose sonnet in answer to an acknowledgement of one i had received from lord alfred." mr. gill.--"do you think that an ordinarily-constituted being would address such expressions to a younger man?" witness.--"i am not, happily, i think, an ordinarily constituted being." mr. gill.--"it is agreeable to be able to agree with you, mr. wilde." (laughter). witness.--"there is, i assure you, nothing in either letter of which i need be ashamed." mr. gill.--"you have heard the evidence of the lad charles parker?" witness.--"yes." mr. gill.--"of atkins?" witness.--"yes." mr. gill.--"of shelley?" witness.--"yes." mr. gill.--"and these witnesses have, you say, lied throughout?" witness.--"their evidence as to my association with them, as to the dinners taking place and the small presents i gave them, is mostly true. but there is not a particle of truth in that part of the evidence which alleged improper behaviour." mr. gill.--"why did you take up with these youths?" witness.--"i am a lover of youth." (laughter). mr. gill.--"you exalt youth as a sort of god?" witness.--"i like to study the young in everything. there is something fascinating in youthfulness." mr. gill.--"so you would prefer puppies to dogs, and kittens to cats?" (laughter). witness.--"i think so. i should enjoy, for instance, the society of a beardless, briefless, barrister quite as much as that of the most accomplished q. c." (loud laughter). mr. gill.--"i hope the former, whom i represent in large numbers, will appreciate the compliment." (more laughter). "these youths were much inferior to you in station?" witness.--"i never enquired, nor did i care, what station they occupied. i found them, for the most part, bright and entertaining. i found their conversation a change. it acted as a kind of mental tonic." mr. gill.--"you saw nothing peculiar or suggestive in the arrangement of taylor's rooms?" witness.--"i cannot say that i did. they were bohemian. that is all. i have seen stranger rooms." mr. gill.--"you never suspected the relations that might exist between taylor and his young friends?" witness.--"i had no need to suspect anything. taylor's relations with his friends appeared to me to be quite normal." mr. gill.--"you have attended to the evidence of the witness mavor?" witness.--"i have." mr. gill.--"is it true or false?" witness.--"it is mainly true, but false inferences have been drawn from it as from most of the evidence. truth may be found, i believe, at the bottom of a well. it is, apparently difficult to find it in a court of law." (laughter.) mr. gill.--"nevertheless we endeavour to extract it. did the witness mavor write you expressing a wish to break off the acquaintance?" witness.--"i received a rather unaccountable and impertinent letter from him for which he afterwards expressed great regret." mr. gill.--"why should he have written it if your conduct had altogether been blameless?" witness.--"i do not profess to be able to explain the motives of most of the witnesses. mavor may have been told some falsehood about me. his father was greatly incensed at his conduct at this time, and, i believe, attributed his son's erratic courses to his friendship with me. i do not think mavor altogether to blame. pressure was brought to bear upon him and he was not then quite right in his mind." mr. gill.--"you made handsome presents to these young fellows?" witness.--"pardon me, i differ. i gave two or three of them a cigarette-case. boys of that class smoke a good deal of cigarettes. i have a weakness for presenting my acquitances with cigarette-cases." mr. gill.--"rather an expensive habit if indulged in indiscriminately." witness.--"less extravagant than giving jewelled-garters to ladies." (laughter). when a few more unimportant questions had been asked, wilde left the witness-box, returning to the dock with the same air of what may be described as serious easiness. the impression created by his replies was not, upon the whole, favorable to his cause. his place was taken by the prisoner taylor. he said that he was thirty-three years of age and was educated at marlborough. when he was twenty-one he came into £ , . in a few years he ran through this fortune, and at about the time he went to chapel street, he was made a bankrupt. the charges made against him of misconduct were entirely unfounded. he was asked point-blank if he had not been given to sodomy from his early youth, and if he had not been expelled from a public-school for being caught in a compromising situation with a small boy in the lavatory. taylor was also asked if he had not actually obtained a living since his bankruptcy by procuring lads and young men for rich gentlemen whom he knew to be given to this vice. he was also asked if he had not extracted large sums of money from wealthy men by threatening to accuse them of immoralities. to all these plain questions he returned in direct answer, "no." after the luncheon interval, sir edward clark rose to address the jury in defence of oscar wilde. he began by carefully analysing the evidence. he declared that the wretches who had come forward to admit their own disgrace were shameless creatures incapable of one manly thought or one manly action. they were, without exception, blackmailers. they lived by luring men to their rooms, generally, on the pretence that a beautiful girl would be provided for them on their arrival. once in their clutches, these victims could only get away by paying a large sum of money unless they were prepared to face and deny the most disgraceful charges. innocent men constantly paid rather than face the odium attached to the breath even of such scandals. they had, moreover, wives and children, daughters, maybe or a sister whose honour or name they were obliged to consider. therefore they usually submitted to be fleeced and in this way, this wretched wood and the abject atkins had been able to go about the west-end well-fed and well-dressed. these youths had been introduced to wilde. they were pleasant-spoken enough and outwardly decent in their language and conduct. wilde was taken in by them and permitted himself to enjoy their society. he did not defend wilde for this; he had unquestionably shown imprudence, but a man of his temperament could not be judged by the standards of the average individual. these youths had come forward to make these charges in a conspiracy to ruin his client. was it likely, he asked, that a man of wilde's cleverness would put himself so completely in the power of these harpies as he would be if guilty of only a tenth of the enormities they alleged against him? if wilde practised these acts so openly and so flagrantly--if he allowed the facts to come to the knowledge of so many--then he was a fool who was not fit to be at large. if the evidence was to be credited, these acts of gross indecency which culminated in actual crime were done in so open a manner as to compel the attention of landladies and housemaids. he was not himself--and he thanked heaven for it--versed in the acts of those who committed these crimes against nature. he did not know under what circumstances they could be practised. but he believed that this was a vice which, because of the horror and repulsion it excited, because of the fury it provoked against those guilty of it, was conducted with the utmost possible secrecy. he respectfully submitted that no jury could find a man guilty on the evidence of these tainted witnesses. take the testimony, he said, of atkins. this young man had denied that he had ever been charged at a police station with alleging blackmail. yet he was able to prove that he had grossly perjured himself in this and other directions. that was a sample of the evidence and atkins was a type of the witnesses. the only one of these youths who had ever attempted to get a decent living or who was not an experienced blackmailer was mavor, and he had denied that wilde had ever been guilty of any impropriety with him. the prosecution had sought to make capital out of two letters written by wilde to lord alfred douglas. he pointed out a fact which was of considerable importance, namely, that wilde had produced one of these letters himself. was that the act of a man who had reason to fear the contents of a letter being known? wilde never made any secret of visiting taylor's rooms. he found there society which afforded him variety and change. wilde made no secret of giving dinners to some of the witnesses. he thought that they were poorly off and that a good dinner at a restaurant did not often come their way. on only one occasion did he hire a private room. the dinners were perfectly open and above-board. wilde was an extraordinary man and he had written letters which might seem high-flown, extravagant, exaggerated, absurd if they liked; but he was not afraid or ashamed to produce these letters. the witnesses charles parker, alfred wood and atkins had been proved to have previously been guilty of blackmailing of this kind and upon their uncorroborated evidence surely the jury would not convict the prisoner on such terrible charges. "fix your minds," concluded sir edward earnestly, "firmly on the tests that ought to be applied to the evidence as a whole before you can condemn a fellow-man to a charge like this. remember all that this charge implied, of implacable ruin and inevitable disgrace. then i trust that the result of your deliberations will be to gratify those thousand hopes that are waiting upon your verdict. i trust that verdict will clear from this fearful imputation one of the most accomplished and renowned men-of-letters of to-day." at the end of this peroration, there was some slight applause at the back of the court, but it was hushed almost at once. wilde had paid great attention to the speech on his behalf and on one or two occasions had pressed his hands to his eyes as if expressing some not unnatural emotion. the speech concluded, however, he resumed his customary attitude and awaited with apparent firmness all that might befall. mr. grain then rose to address the jury on behalf of taylor. he submitted that there was really no case against his client. an endeavour had been made to prove that taylor was in the habit of introducing to wilde youths whom he knew to be amenable to the practices of the latter and that he got paid for this degrading work. the attempt to establish this disgusting association between taylor and wilde had completely broken down. he was, it is true, acquainted with parker, wood and atkins. he had seen them constantly in restaurants and music-halls, and they had at first forced themselves upon his notice and thus got acquainted with a man whom they designed for blackmail. all the resources of the crown had been unable to produce any corroboration of the charges made by these witnesses. how had taylor got his livelihood, it might be asked? he was perfectly prepared to answer the question. he had been living on an allowance made him by members of his late father's firm, a firm with which all there present were familiar. was it in the least degree likely that such scenes as the witnesses described, with such apparent candour and such wealth of filthy detail, could have taken place in taylor's own apartments? it was incredible that a man could thus risk almost certain discovery. in conclusion, he confidently looked for the acquittal of his client, who was guilty of nothing more than having made imprudent acquaintances and having trusted too much to the descriptions of themselves given by others. mr. gill then replied for the prosecution in a closely-reasoned and most able speech, which occupied two hours in delivery and which created an enormous impression in the crowded court. he commented at great length upon the evidence. he contended that in a case of this description corroboration was of comparatively minor importance, for it was not in the least likely that acts of the kind alleged would be practised before a third party who might afterwards swear to the fact. therefore, when the witnesses described what had transpired when they and the prisoners were alone, he did not think that corroboration could possibly be given. there was not likely to be an eye-witness of the facts. but in respect to many things he declared the evidence was corroborated. whatever the character of these youths might be, they had given evidence as to certain facts and no cross-examination, however adroit, however vigorous, had shaken their testimony, or caused them to waver about that which was evidently firmly implanted in their memories. a man might conceivably come forward and commit perjury. but these youths were accusing themselves, in accusing another, of shameful and infamous acts, and this they would hardly do if it were not the truth. wilde had made presents to these youths and it was noticeable that the gifts were invariably made after he had been alone, at some rooms or other, with one or another of the lads. in the circumstances, even a silver cigarette-case was corroboration. his learned friend had protested against any evil construction being placed upon these gifts and these dinners; but, in the name of common-sense, what other construction was possible? when they heard of a man like wilde, presumably of refined and cultured tastes, who might if he wished, enjoy the society of the best and most cultivated men and women in london, accompanying to nice and other places on the continent, uninformed, unintellectual and vulgar, ill-bred youths of the type of charles parker, then, in heaven's name what were they to think? all those visits, all those dinners, all those gifts, were corroboration. they served to confirm the truth of the statements made by the youths who confessed to the commission of acts for which the things he had quoted were positive and actual payment. in the case of the witness sidney mavor, it was clear that wilde had, in some way, continued to disgust this youth. some acts of wilde, either towards himself, or towards others, had offended him. was not the letter which mavor had addressed to the prisoner, desiring the cessation of their friendship, corrobation? (at this moment his lordship interposed, and said that although the evidence of this witness was clearly of importance, he had denied that he had been guilty of impropriety, and he did not think the count in reference to mavor could stand. after some discussion this count was struck out of the indictment). before concluding mr. gill stated that he had withdrawn the conspiracy count to prevent any embarrassment to sir edward clarke, who had complained that he was affected in his defence by the counts being joined. mr. gill said, in conclusion, that it was the duty of the jury to express their verdict without fear or favour. they owed a duty to society, however sorry they might feel themselves at the moral downfall of an eminent man, to protect society from such scandals by removing from its heart a sore which could not fail in time to corrupt and taint it all. mr. justice charles then commenced his summing-up. his lordship at the outset said he thought mr. gill had taken a wise course in withdrawing the conspiracy counts and thus relieving them all of an embarrassing position. he did not see why the conspiracy counts need have been inserted at all, and he should direct the jury to return a verdict of acquittal on those charges as well as upon one other count against taylor, to which he would further allude, and upon which no sufficient evidence had been given. he, the learned judge, asked the jury to apply their minds solely to the evidence which had been given. any pre-conceived notion which they might have formed from reading about the case he urged them to dismiss from their minds, and to deal with the case as it had been presented to them by the witnesses. his lordship went on to ask the jury not to attach too much importance to the uncorroborated evidence of accomplices in such cases as these. had there been no corroboration in this case it would have been his duty to instruct the jury accordingly; but he was clearly of opinion that there was corroboration to all the witnesses; not, it is true, the conspiracy testimony of eye-witnesses, but corroboration of the narrative generally. three of the witnesses, chas. parker, wood and atkins, were not only accomplices, but they had been properly described by sir edward clarke as persons of bad character. atkins, out of his own mouth, was convicted of having told the most gross and deliberate falsehoods. the jury knew how this matter came before them as the outcome of the trial of lord queensberry for alleged libel. the learned judge proceeded to outline the features of the queensberry trial, commenting most upon what was called the literary part of wilde's examination in that case. the judge said that he had not read "dorian gray", but extracts were read at the former trial and the present jury had a general idea of the story. he did not think they ought to base any unfavourable inference upon the fact that wilde was the author of that work. it would not be fair to do so, for while it was true that there were many great writers, such for instance as sir walter scott and charles dickens, who never penned an offensive line, there were other great authors whose pens dealt with subjects not so innocent. as for wilde's aphorisms in the "chameleon", some were amusing, some were cynical, and some were, if he might be allowed to say so, simple, but there was nothing _in per se_, to convict wilde of indecent practices. however, the same paper contained a very indecent contribution; "the priest and the acolyte." mr. wilde had nothing to do with that. in the "chameleon" also appeared two poems by lord alfred douglas, one called "in praise of shame", and the other called "two loves." it was said that these sonnets had an immoral tendency and that wilde approved them. he was examined at great length about these sonnets, and was also asked about the two letters written by him to lord alfred douglas--letters that had been written before the publication of the above mentioned poems. in the previous case mr. carson had insisted that these letters were indecent. on the other hand, wilde had told them that he was not ashamed of them, as they were intended in the nature of prose poems and breathed the pure love of one man for another, such a love as david had for jonathan, and such as plato described as the beginning of wisdom. he would next deal with the actual charges, and would first call their attention to the offence alleged to have been committed with edward shelley at the beginning of . shelley was undoubtedly in the position of an accomplice, but his evidence was corroborated. he was not, however, tainted with the offences with which parker, wood and atkins were connected. he seemed to be a person of some education and a fondness for literature. as to shelley's visit to the albemarle hotel, the jury were the best judges of the demeanour of the witness. wilde denied all the allegations of indecency though he admitted the other parts of the young man's story. his lordship called attention to the letters written by shelley to wilde in , and . it was, he said, a very anxious part of the jury's task to account for the tone of these letters, and for shelley's conduct generally. it became a question as to whether or no his mind was disordered. he felt bound to say that though there was evidence of great excitability, to talk of either shelley or mavor as an insane youth was an exaggeration, but it would be for the jury to draw their own conclusions. passing to the case of atkins, the judge drew attention to his meeting with taylor in november , to the dinner at the café florence, at which wilde, taylor, atkins and lord a. douglas were present, and to the visit of atkins to paris in company with wilde. after dwelling on the circumstances of that visit, his lordship referred to wilde's two visits to atkins in osnaburgh street in december . wilde explained the paris visit by saying that schwabe had arranged to take atkins to paris, but being unable to leave at the time appointed he asked wilde to take charge of the youth, and he did so out of friendship for schwabe. wilde further denied that he was much in atkins' company when in paris. atkins certainly was an unreliable witness and had obviously given an incorrect version of his relations with burton. he told the grossest falsehoods with regard to their arrest, and was convicted out of his own mouth when recalled by sir e. clarke. it was for the jury to decide how much of atkins's evidence they might safely believe. then there were the events described as having occured at the savoy hotel in march . he would ask the jury to be careful in the evidence of the chamber-maid, jane cotter, and the interpretation they put upon it. if her evidence and that of the masseur mijji, were true, then wilde's evidence on that part of the case was untrue, and the jury must use their own discretion. he did not wish to enlarge upon this most unpleasant part of the whole unpleasant case, but it was necessary to remind the jury as discreetly as he could that the chamber-maid had objected to making the bed on several occasions after wilde and atkins had been in the bed-room alone together. there were, she had affirmed, indications on the sheets that conduct of the grossest kind had been indulged in. he thought it his duty to remind the jury that there might be an innocent explanation of these stains, though the evidence of jane cotter certainly afforded a kind of corroboration of these charges and of atkins's own story. in reference to the case of wood, he contrasted wood's account with that of wilde. it seemed that lord alfred douglas had met wood at taylor's rooms. in response to a telegram from the former, wood went to the café royal and there met wilde for the first time, wilde speaking first. on the other hand, wilde represented that wood spoke first. the jury might think that, in any case, the circumstances of that meeting were remarkable, especially when taken in conjunction with what followed. there was no doubt that wood had fallen into evil courses and he and allen had extracted the sum of £ in blackmail. the interview between wilde and wood prior to the latter's departure for america was remarkable. a sum of money, said to be £ , was given by wilde to wood, and wood returned some of wilde's letters that had somehow come into his possession. wood, however, kept back one letter which got into allen's possession. wood got £ more on the following day, went to america, and while there wrote to taylor a letter in which occured the passage. "tell oscar if he likes he can send me a draft for an easter egg." it would be for the jury to consider what would have been the inner meaning of these and other transactions. as to the prisoner taylor, he had, on his own admission, led a life of idleness, and got through a fortune of £ , . it was alleged that the prisoner had virtually turned his apartments into a bagnio or brothel, in which young men took the place of prostitutes, and that his character in this regard was well known to those who were secretly given to this particular vice. one of the offences imputed to taylor had reference to charles parker, who had spoken of the peculiar arrangement of the rooms. there were two bedrooms in the inner room with folding doors between and the windows were heavily draped, so that no one from the opposite houses could possibly see what was going on inside. heavy curtains, it was said, hung before all the doors, so that it could not be possible for an eave's-dropper to hear what was proceeding inside. there was a curiously shaped sofa in the sitting-room and the whole aspect of the room resembled, it was asserted, a fashionable resort for vice. wilde was undoubtedly present at some of the tea parties given there, and did not profess to be surprised at what he saw there. it had been shown that both the parkers went to these rooms, and further, that charles parker had received £ of the blackmail extorted by wood and allen. charles parker's evidence was therefore doubly-tainted like that of wood and atkins, but his evidence was to some extent confirmed by that of his brother william. some parts of charles parker's evidence were also corroborated by other witnesses, as for instance, by marjorie bancroft, who swore that she saw wilde visit charles parker's rooms in park walk. it was admitted that this parker visited wilde at st. james' place. charles parker had been arrested with taylor in the fitzroy square raid and this went to show that they were in the habit of associating with those suspected of offences of the kind alleged. both, however, were on that occasion discharged and parker enlisted in the army. it was quite manifest that charles parker was of a low class of morality. that concluded the various charges made in this case and he had very little to add. mavor's evidence had little or no value with reference to the issues now before the jury, except as showing how he became acquainted with wilde and taylor. so far as it went, mavor's evidence was rather in favour of wilde than otherwise and nothing indecent had been proved against that witness. in conclusion, his lordship submitted the case to the jury in the confident hope that they would do justice to themselves on the one hand, and to the two defendants on the other. the learned judge concluded by further directing the jury as to the issues, and asked them to form their opinions on the evidence, and to give the case their careful consideration. the judge left the following questions to the jury:-- first, whether wilde committed certain offences with shelley, wood, with a person or persons unknown at the savoy hotel, or with charles parker? secondly, whether taylor procured the commission of those acts or any of them? thirdly, did wilde or taylor, or either of them attempt to get atkins to commit certain offences with wilde, and fourthly, did taylor commit certain acts with either charles parker or wood? the jury retired at . , the summing-up of the judge having taken exactly three hours. at three o'clock a communication was brought from the jury, and conveyed by the clerk of arraigns to the judge, and shortly afterwards the jury had luncheon taken in to them. at . the judge sent for the clerk of arraigns, mr. avory, who proceeded to his lordship's private room. subsequently, mr. avory went to the jury, apparently with a communication from the judge and returned in a few minutes to the judge's private room. shortly before five o'clock the usher brought a telegram from one of the jurors, and after it had been shown to the clerk of arraigns it was allowed to be despatched. eventually the jury returned into court at a quarter past five o'clock. the verdict the judge.--"i have received a communication from you to the effect that you are unable to arrive at an agreement. now, is there anything you desire to ask me in reference to the case?" the foreman.--"i have put that question to my fellow-jurymen, my lord, and i do not think there is any doubt that we cannot agree upon three of the questions." the judge.--"i find from the entry which you have written against the various subdivisions of no. that you cannot agree as to any of those subdivisions?" the foreman.--"that is so, my lord." the judge.--"is there no prospect of an agreement if you retire to your room?" the foreman.--"i fear not." the judge.--"you have not been inconvenienced; i ordered what you required, and there is no prospect that, with a little more deliberation, you may come to an agreement as to some of them?" the foreman.--"my fellow-jurymen say there is no possibility." the judge.--"i am very unwilling to prejudice your deliberations, and i have no doubt that you have done your best to arrive at an agreement. on the other hand i would point out to you that the inconveniences of a new trial are very great. if you thought that by deliberating a reasonable time you could arrive at a conclusion upon any of the questions i have asked you, i would ask you to do so." the foreman.--"we considered the matter before coming into court and i do not think there is any chance of agreement. we have considered it again and again." the judge.--"if you tell me that, i do not think i am justified in detaining you any longer." sir edward clarke.--"i wish to ask, my lord, that a verdict may be given in the conspiracy counts." mr. gill.--"i wish to oppose that." the judge.--"i directed the acquittal of the prisoners on the conspiracy counts this morning. i thought that was the right course to adopt, and the same remark might be made with regard to the two counts in which taylor was charged with improper conduct towards wood and parker. it was unfortunate that the real and material questions which had occupied the jury's attention for such a length of time were matters upon which the jury were unable to agree. upon these matters and upon the counts which were concerned with them, i must discharge the jury." sir edward clarke.--"i wish to apply for bail, then for m. wilde." mr. hall.--"and i make the same application on behalf of taylor." the judge.--"i don't feel able to accede to the applications." sir edward.--"i shall probably renew the application, my lord." the judge.--"that would be to a judge in chambers." mr. gill.--"the case will assuredly be tried again and probably it will go to the next sessions." the two prisoners, who had listened to all this very attentively, were then conducted from the dock. wilde had listened to the foreman of the jury's statement without any show of feeling. it was stated that the failure of the jury to agree upon a verdict was owing to three out of the twelve being unable upon the evidence placed before them to arrive at any other conclusion than that of "not guilty." the following day mr. baron pollock decided that oscar wilde should be allowed out on bail in his own recognisances of £ , and two sureties of £ , each. wilde was brought up at bow street next day and the sureties attended. after a further application, bail in his case was granted and he went out of prison, for the present a free man, but with nemesis, in the shape of the second trial, awaiting him! * * * * * the second trial of oscar wilde, with its dramatic finale, for no one thought much of its consequences to alfred taylor, came on in the third week of may at the old bailey. it was agreed to take the cases of the prisoners separately, taylor's first. sir edward clarke, who still represented wilde, stated that he should make an application at the end of taylor's trial that wilde's case should stand over till the next sessions. his lordship said that application had better be postponed till the end of the first trial, significantly adding, "if there should be an acquittal, so much the better for the other prisoner." meanwhile wilde was to be released on bail. sir francis lockwood, who now represented the prosecution, then went over all the details of the intimacy of the parkers and wood with taylor and wilde and called charles parker, who repeated his former evidence, including a very serious allegation against the prisoner. he stated in so many words that taylor had kept him at his rooms for a whole week during which time they rarely went out, and had repeatedly committed sodomy with him. the witness unblushingly asserted that they slept together and that taylor called him "darling" and referred to him as "my little wife." when he left taylor's rooms the latter paid him some money, said he should never want for cash and that he would introduce him to men "prepared to pay for that kind of thing." cross-examined; charles parker admitted that he had previously been guilty of this offence, but had determined never to submit to such treatment again. taylor over-persuaded him. he was nearly drunk and incapable, the first time, of making a moral resistance. alfred wood also described his acquaintance with taylor and his visits to what he termed the "snuggery" at little college street, but which quite as appropriately could have been designed by a name which would have the additional merit of strictly describing it and of rhyming with it at the same time! it was not at all clear, however, that taylor was responsible, at least directly, for the introduction of alfred wood to wilde as the indictment suggested. this was effected by a third person, whose name had not as yet been introduced into the case. mrs. grant, the landlady at little college street, described taylor's rooms. she was not aware, she said, that they were put to an improper use, but she had remarked to her husband the care taken that whatever went on there should be hidden from the eyes and ears of others. young men used to come there and remain some time with taylor, and wilde was a frequent visitor. taylor provided much of his own bed-linen and she noticed that the pillows had lace and were generally elaborate and costly. the prosecution next called a new witness, emily becca, chambermaid at the savoy hotel, who stated that she had complained to the management of the state in which she found the bed-linen and the utensils of the room. when pressed for particulars the witness hesitated, and after stating that she refused to make the bed or empty the "chamber," she said she handed in her notice but was prevailed upon to withdraw it. then by a series of adroit questions counsel obtained the particulars. the bed-linen was stained. the colour was brown. the towels were similarly discoloured. one of the pillows was marked with face-powder. there was excrement in one of the utensils in the bedroom. wilde had handed her half a sovereign but when she saw the state of the room after he had gone she gave the coin to the management. evidence with regard to wilde's rooms at st. james' place was given by thomas price, who was able to identify taylor as one of the callers. mrs. gray--no relation, haply, to the notorious "dorian"--of chapel street, chelsea, deposed that taylor stayed at her house from august to the end of that year. formal and minor items of evidence concluded the case for the prosecution of taylor, and mr. grain proceeded to open his defence by calling the prisoner into the witness-box. mr. grain examined him. mr. grain.--"what is your age?" witness.--"i am thirty-three." mr. grain.--"you are the son of the late henry taylor, who was a manufacturer of an article of food in large demand?" witness.--"i am." mr. grain.--"you were at marlborough school?" witness.--"till i was seventeen." mr. grain.--"you inherited £ , i believe?" witness.--"yes." mr. grain.--"and spent it?" witness.--"it went." mr. grain.--"since then you have had no occupation?" witness.--"i have lived upon an allowance made me." mr. grain.--"is there any truth in the evidence of charles parker that you misconducted yourself with him." witness.--"not the slightest." mr. grain.--"what rooms had you at little college street?" witness.--"one bedroom, but it was sub-divided and i believe there was generally a bed in each division." mr. grain.--"you had a good many visitors?" witness.--"oh, yes." sir frank lockwood.--"did charles mavor stay with you then?" witness.--"yes, about a week." sir frank.--"when?" witness.--"when i first went there, in ." sir frank.--"what is his age?" witness.--"he is now or ." sir frank.--"do you remember going through a form of marriage with mavor?" witness.--"no, never." sir frank.--"did you tell parker you did?" witness.--"nothing of the kind." sir frank.--"did you not place a wedding-ring on his finger and go to bed with him that night as though he were your lawful wife?" witness.--"it is all false. i deny it all." sir frank.--"did you ever sleep with mavor?" witness.--"i think i did the first night--after, he had a separate bed." sir frank.--"did you induce mavor to attire himself as a woman?" witness.--"certainly i did not." sir frank.--"but there were articles of women's dress at your rooms?" witness.--"no. there was a fancy dress for a female, a theatrical costume." sir frank.--"was it made for a woman?" witness.--"i think so." sir frank.--"perhaps you wore it?" witness.--"i put it on once by way of a lark." sir frank.--"on no other occasion?" witness.--"i wore it once, too, at a fancy dress ball." sir frank.--"i suggest that you often dressed as a woman?" witness.--"no." sir frank.--"you wore, and caused mavor afterwards, to wear lace drawers--a woman's garment--with the dress?" witness.--"i wore knicker-bockers and stockings when i wore it at the fancy dress ball." sir frank.--"and a woman's wig, which afterwards did for mavor?" witness.--"no, the wig was made for me. i was going to a fancy-ball as 'dick whittington'." sir frank.--"who introduced you to the parkers?" witness.--"a friend named harrington at the st. james's restaurant." sir frank.--"you invited them to your rooms?" witness.--"i did." sir frank.--"why?" witness.--"i found them very nice." sir frank.--"you were acquainted with a young fellow named mason?" witness.--"yes." sir frank.--"he visited you?" witness.--"two or three times only, i think." sir frank.--"did you induce him to commit a filthy act with you?" witness.--"never." sir frank.--"he has written you letters?" witness.--"that's very likely." sir frank.--"the solicitor general proposes to read one." the letter was as follows:-- "dear alf, let me have some money as soon as you can. i would not ask you for it if i could get any myself. you know the business is not so easy. there is a lot of trouble attached to it. come home soon, dear, and let us go out together sometimes. have very little news. going to a dinner on monday and a theatre to-night. with much love, yours always, charles." the solicitor general.--(severely) "i ask you, taylor, for an explanation, for it requires one, of the use of the words "come home soon, dear", as between two men." taylor.--(laughing nervously) "i do not see anything in it." the solicitor general.--"nothing in it?" witness.--"well, i am not responsible for the expressions of another." the solicitor general.--"you allowed yourself to be addressed in this strain?" witness.--"it's the way you read it." the summing-up followed and after a consultation of three-quarters of an hour, the jury returned a verdict against taylor on the indecency counts, not agreeing, however, as to the charges of procuration. sentence was postponed, pending the result of the trial of oscar wilde, which began next day. * * * * * wilde had meanwhile been at large on bail. the one charge of "conspiring with alfred taylor to procure" had been dropped, and the indictment of misdemeanour alleged that the prisoner unlawfully committed various acts with charles parker, alfred wood, edward shelley, and certain persons unknown. the plea of "not guilty" was recorded. the case for the prosecution was opened by calling edward shelley, the young man who had been employed by the vigo street publishers. shelley repeated the story of the beginning and the progress of his intimacy with wilde. it began, he said, in ; in march , they quarrelled. the witness had been subjected by the prisoner to attempts at improper conduct. oscar had, to be plain, on several occasions, placed his hand on the private parts of the witness and sought to put his, witness's, hand in the same indelicate position as regards wilde's own person. witness resented these acts at the time; had told wilde not to be 'a beast', and the latter expressed his sorrow. "but i am so fond of you, edward," he had said. the witness wrote wilde that he would not see him again. he spoke in the letter of these and other acts of impropriety and made use of the expression, "i was entrapped." witness explained to the court, "he knew i admired him very much and he took advantage of me--of my admiration and--well, i won't say innocence. i don't know what to call it." these are some of the letters which shelley wrote to wilde: october , . oscar: will you be at home on sunday evening next? i am most anxious to see you. i would have called this evening, but i am suffering from nervousness, the result of insomnia and am obliged to remain at home. i have longed to see you all through the week. i have much to tell you. do not think me forgetful in not coming before, because i shall never forget your kindness, and am conscious that i can never sufficiently express my thankfulness. another letter ran: october , . oscar: i want to go away and rest somewhere--i think in cornwall for two weeks. i am determined to live a truly christian life, and i accept poverty as part of my religion, but i must have health. i have so much to do for my mother. sir edward clarke.--"now, mr. shelley, do you mean to tell the jury that having in your mind, that this man had behaved disgracefully towards you, you wrote that letter of october , ?" witness.--"yes. because after those few occurrences he treated me very well. he seemed really sorry for what he had done." sir edward.--"he introduced you to his home?" witness.--"yes, to his wife. i dined with them and he seemed to take a real interest in me." sir edward.--"you have met lord alfred douglas?" witness.--"yes, at his rooms at the 'varsity'." sir edward.--"he was kind to you?" witness.--"yes. he gave me a suit of clothes while i was there." sir edward.--"and you found two letters in one of the pockets?" witness.--"yes." sir edward.--"who from?" witness.--"from mr. wilde to lord alfred." sir edward.--"how did they begin?" witness.--"one was addressed, "dear alfred", and the other to "dear bogie." solicitor-general.--"when did you first meet lord alfred?" witness.--"at taylor's rooms in little college street." solicitor-general.--"then you visited him at the university?" witness.--"yes." the solicitor-general then proceeded to ask the witness as to the terms upon which wilde and lord alfred appeared to be; but this has been a prohibited topic from first to last and was now successfully objected to. charles parker was called and he repeated his evidence at great length, relating the most disgusting facts in a perfectly serene manner. he said that wilde invariably began his "campaign"--before arriving at the final nameless act--with indecencies. he used to require the witness to do what is vulgarly known as "tossing him off", explained parker quite unabashed, "and he would often do the same to me. he suggested two or three times that i should permit him to insert "it" in my mouth, but i never allowed that." he gave other details equally shocking. a few other witnesses were examined, and the rest of the day having been spent in the reading over of the evidence, sir edward clarke submitted that in respect of certain counts of the indictment there was no evidence to go to the jury. the solicitor-general submitted that there was ample evidence to go to the jury, who alone could decide as to whether or not it was worthy of belief. the judge said he thought the point in respect to the savoy hotel incident was just on the line, but he thought that the wiser and safer course was to allow the count in respect of this matter to go to the jury. at the same time, he felt justified, if the occasion should arise, in reserving the point for the court of appeal. he was inclined to think it was a matter, the responsibility of deciding which, rested with the jury. sir edward clarke submitted next that there was no corroboration of the evidence of this witness. the letters of shelley pointed to the inference that the latter might have been the victim of delusions, and, judging from his conduct in the witness-box, he appeared to have a peculiar sort of exaltation in and for himself. the solicitor-general maintained that shelley's evidence was corroborated as far as it could possibly be. of course, in a case of this kind there was an enormous difficulty in producing corroboration of eye-witnesses to the actual commission of the alleged act. the judge held that shelley must be treated on the footing of an accomplice. he adhered, after a most careful consideration of the point, to his former view, that there was no corroboration of the nature required by the act to warrant conviction, and therefore he felt justified in withdrawing that count from the jury. sir edward clarke made the same submission in the case of wood. the solicitor general protested against any decision being given on these questions other than by a verdict of the jury. in his opinion the case of the man wood could not be withheld from the jury. he submitted that there was every element of strong corroboration of wood's story, having regard especially to the strange and suspicious circumstances under which wilde and wood became acquainted. sir edward clarke quoted from the summing-up of mr. justice charles on the last trial relative to the directions which he gave the jury in the law respecting the corroboration of the evidence of an accomplice. the judge was of opinion that the count affecting wood ought to go to the jury, and he gave reasons why it ought not to be withheld. sir edward clarke after a private passage of arms with the solicitor-general in respect to the need for corroborative evidence, then began a brief, but able appeal to the jury on behalf of his client, after which wilde entered the witness-box. he formally denied the allegations against him. sir frank lockwood, in cross-examination: "now, mr. wilde, i should like you to tell me where lord a. douglas is now?" witness.--"he is in paris, at the hotel des deux mondes." sir frank.--"how long has he been there?" witness.--"three weeks." sir frank.--"have you been in communication with him?" witness.--"certainly. these charges are founded on sand. our friendship is founded on a rock. there has been no need to cancel our acquaintance." sir frank.--"was lord alfred in london at the time of the trial of the marquis of queensberry?" witness.--"yes, for about three weeks. he went abroad at my request before the first trial on these counts came on." sir frank.--"may we take it that the two letters from you to him were samples of the kind you wrote him?" witness.--"no. they were exceptional letters born of the two exceptional letters he sent to me. it is possible, i assure you, to express poetry in prose." sir frank.--"i will read one of these prose-poem letters. do you think this line is decent, addressed to a young man? "your rose-red lips which are made for the music of song and the madness of kissing." witness.--"it was like a sonnet of shakespeare. it was a fantastic, extravagant way of writing to a young man. it does not seem to be a question of whether it is proper or not." sir frank.--"i used the word decent." witness.--"decent, oh yes." sir frank.--"do you think you understand the word, sir?" witness.--"i do not see anything indecent in it, it was an attempt to address in beautiful phraseology a young man who had much culture and charm." sir frank.--"how many times have you been in the college street 'snuggery' of the man taylor?" witness.--"i do not think more than five or six times." sir frank.--"who did you meet there?" witness.--"sidney mavor and schwabe--i cannot remember any others. i have not been there since i met wood there." sir frank.--"with regard to the savoy hotel witnesses?" witness.--"their evidence is quite untrue." sir frank.--"you deny that the bed-linen was marked in the way described?" witness.--"i do not examine bed-linen when i arise. i am not a housemaid." sir frank.--"were the stains there, sir?" witness.--"if they were there, they were not caused in the way the prosecution most filthily suggests." sir edward clarke, after a slight "breeze" with the solicitor-general as to the right to the last word to the jury, then addressed that devoted band of men for the third time, and asked for the acquittal of his client on all the counts. sir frank lockwood also addressed the jury and the court then adjoined. next day the solicitor-general, resuming his speech on behalf of the crown dealt in details with the arguments of sir e. clarke in defence of wilde, and commented in strong terms on observations that he made respecting the lofty situation of wilde, with his literary accomplishments, for the purpose of influencing the judgment of the young. he said that the jury ought to discard absolutely any such appeal, to apply simply their common-sense to the testimony; and to form a conclusion on the evidence, which he submitted fully established the charges. he was commenting on another branch of the case, when sir e. clarke interposed on the ground that the learned solicitor-general was alluding to incidents connected with another trial. the solicitor-general maintained that he was strictly within his rights, and the judge held that the latter was entitled to make the comments objected to. "my learned friend does not appear to have gained a great deal by his superfluity of interruption", remarked the solicitor-general suavely, and the court laughed loudly. the judge said that this sort of thing was most offensive to him. it was painful enough to have to try such a case and keep the scales of justice evenly balanced without the court being pestered with meaningless laughter and applause. if such conduct were repeated he would have the court cleared. the solicitor-general then criticised the answers given by wilde to the charges, which explanations he submitted, were not worthy of belief. the jury could not fail to put the interpretation on the conduct of the accused that he was a guilty man and they ought to say so by their verdict. the judge, in summing-up, referred to the difficulties of the case in some of its features. he regretted, that if the conspiracy counts were unnecessary, or could not be established, they should have been placed in the indictment. the jury must not surrender their own independent judgment in dealing with the facts and ought to discard everything which was not relevant to the issue before them, or did not assist their judgment. he did not desire to comment more than he could help about lord alfred douglas or the marquis of queensberry, but the whole of this lamentable enquiry arose through the defendant's association with lord a. douglas. he did not think that the action of the marquis of queensberry in leaving the card at the defendant's club, whatever motives he had, was that of a gentleman. the jury were entitled to consider that these alleged acts happened some years ago. they ought to be the best judges as to the testimony of the witnesses and whether it was worthy of belief. the letters written by the accused to lord a. douglas were undoubtedly open to suspicion, and they had an important bearing on wood's evidence. there was no corroboration of wood as to the visit to tite street, and if his story had been true, he thought that some corroboration might have been obtained. wood belonged to the vilest class of person which society was pestered with, and the jury ought not to believe his story unless satisfactorily corroborated. their decision must turn on the character of the first introduction of wilde to wood. did they believe that wilde was actuated by charitable motives or by improper motives? the foreman of the jury, interposing at this stage, asked whether a warrant had been issued for the arrest of lord alfred douglas and if not, whether it was intended to issue one. the judge said he could not tell, but he thought not. it was a matter they could not now discuss. the granting of a warrant depended not upon the inferences to be drawn from the letters referred to in the case, but on the production of evidence of specific acts. there was a disadvantage in speculating on this question. they must deal with the evidence before them and with that alone. the foreman said, "if we are to deduce from the letters it applies to lord alfred douglas equally as to the defendant." the judge.--"in regard to the question as to the absence of lord a. douglas, i warn you not to be influenced by any consideration of the kind. all that they knew was that lord a. douglas went to paris shortly after the last trial and had remained there since. he felt sure that if the circumstances justified it, the necessary proceedings could be taken." his lordship dealt with each of the charges, and the evidence in support of them, and he then, after thanking the jury for the patient manner in which they had attended to the case, left the issues in their hands. the jury retired to consider their verdict at half past three o'clock and at half past five they returned into court. _the verdict_ amidst breathless excitement, the foreman, in answer to the usual formal questions, announced the verdict, "guilty." sir edward clarke.--"i apply, my lord, for a postponement of sentence." the judge.--"i must certainly refuse that request. i can only characterise the offences as the worst that have ever come under my notice. i have, however, no wish to add to the pain that must be felt by the defendants. i sentence both wilde and taylor to two years imprisonment with hard labour." the sentence was met with some cries of "shame", "a scandalous verdict", "unjust," by certain persons in court. the two prisoners appeared dazed and wilde especially seemed ready to faint as he was hurried out of sight to the cells. * * * * * thus perished by his own act a man who might have made a lasting mark in british literature and secured for himself no mean place in the annals of his time. he forfeited, in the pursuit of forbidden pleasures, if pleasures they can be called, all and everything that made life dear. he entered upon his incarceration bankrupt in reputation, in friends, in pocket, and had not even left to him the poor shreds of his own self-esteem. he went into gaol, knowing that if he emerged alive, the darkness would swallow him up and that his world--the spheres which had delighted to honour him--would know him no more. he had covered his name with infamy and sank his own celebrity in a slough of slime and filth. he would die to leave behind him what?--the name of a man who was absolutely governed by his own vices and to whom no act of immorality was too foul or horrible. oscar wilde emerged from prison in every way a broken man. the wonderful descriptive force of the _ballad of reading gaol_; the perfect, torturing self-analysis of _de profundis_ speak eloquently of powers unimpaired; but they were the swan-songs of a once great mind. all his abilities had fled. he seemed unable to concentrate his mind upon anything. he took up certain subjects, played with them, and wearied of them in a day. french authors did not ostracise the erratic english genius when he hid himself amongst them and they honestly endeavoured to find him employment. but his faculties had been blunted by the horrors of prison life. his epigrams had lost their edge. his aphorisms were trite and aimless. he abandoned every subject he took up, in despair. his mind died before his body. he suffered from a complete mental atrophy. a nightingale cannot sing in a cage. a genius cannot flourish in a prison. he died in two years and is now--the merest memory! let us remember this of him: if he sinned much, he suffered much. peace to his ashes! his last book and his last years in paris _by_ "_a_" (lord alfred douglas?) the following three articles, two of them from the "st. james's gazette" and one from the "motorist", are marked with so much good sense and dissipate so many errors touching oscar wilde's last years in paris that the publisher deemed it a duty to reproduce them here as a permanent answer to the wild legends circulated about the subject of this book. oscar wilde his last book and his last years _the publication of oscar wilde's last book, "de profundis," has revived interest in the closing scenes of his life, and we to-day print the first of two articles dealing with his last years in paris from a source which puts their authenticity beyond question._ _the one question which inevitably suggested itself to the reader of "de profundis," was, "what was the effect of his prison reflections on his subsequent life?" the book is full not only of frank admissions of the error of his ways, but of projects for his future activity. "i hope," he wrote, in reply to some criticisms on the relations of art and morals, "to live long enough to produce work of such a character that i shall be able at the end of my days to say, "yes, that is just where the artistic life leads a man!" he mentions in particular two subjects on which he proposed to write, "christ as the precursor of the romantic movement in life" and "the artistic life considered in its relation to conduct." these resolutions were never carried out, for reasons some of which the writer of the following article indicates._ _oscar wilde was released from prison in may, . he records in his letters the joy of the thought that at that time "both the lilac and the laburnum will be blooming in the gardens." the closing sentences of the book may be recalled: "society, as we have constituted it, will have no place for me, has none to offer; but nature, whose sweet rains fall on unjust and just alike, will have clefts in the rocks where i may hide, and secret valleys in whose silence i may weep undisturbed. she will hang the night with stars so that i may walk abroad in the darkness without stumbling, and send the wind over my footprints so that none may track me to my hurt: she will cleanse me in great waters, and with bitter herbs make me whole."_ _he died in november, , three years and a half after his release from reading gaol._ * * * * * monsieur joseph renaud, whose translation of oscar wilde's "intentions" has just appeared in paris, has given a good example of how history is made in his preface to that work. he recounts an obviously imaginary meeting between himself and oscar wilde in a bar on the boulevard des italiens. he concludes the episode, such as it is, with these words: "nothing remained of him but his musical voice and his large blue childlike eyes." oscar wilde's eyes were curious--long, narrow, and green. anything less childlike it would be hard to imagine. to the physiognomist they were his most remarkable feature, and redeemed his face from the heaviness that in other respects characterised it. so much for m. joseph renaud's powers of observation. the complacent unanimity with which the chroniclers of oscar wilde's last years in paris have accepted and spread the "legend" of his life in that city is remarkable, and would be exasperating considering its utter falsity to anyone who was not aware of their incompetence to deal with the subject. scarcely one of his self-constituted biographers had more than the very slightest acquaintance with him, and their records and impressions of him are chiefly made up of stale gossip and secondhand anecdotes. the stories of his supposed privations, his frequent inability to obtain a square meal, his lonely and tragic death in a sordid lodging, and his cheap funeral are all grotesquely false. true, oscar wilde, who for several years before his conviction had been making at least £ , a year, found it very hard to live on his rather precarious income after he came out of prison; he was often very "hard up," and often did not know where to turn for a coin, but i will undertake to prove to anyone whom it may concern that from the day he left prison till the day of his death his income averaged at least £ a year. he had, moreover, far too many devoted friends in paris ever to be in need of a meal provided he would take the trouble to walk a few hundred yards or take a cab to one of half a dozen houses. his death certainly was tragic--deaths are apt to be tragic--but he was surrounded by friends when he died, and his funeral was not cheap; i happen to have paid for it in conjunction with another friend of his, so i ought to know. he did not become a roman catholic before he died. he was, at the instance of a great friend of his, himself a devout catholic, "received into the church" a few hours before he died; but he had then been unconscious for many hours, and he died without ever having any idea of the liberty that had been taken with his unconscious body. whether he would have approved or not of the step taken by his friend is a matter on which i should not like to express a too positive opinion, but it is certain that it would not do him any harm, and, apart from all questions of religion and sentiment, it facilitated the arrangements which had to be made for his interment in a catholic country, in view of the fact that no member of his family took any steps to claim his body or arrange for his funeral. having disposed of certain false impressions in regard to various facts of his life and death in paris, i may turn to what are less easily controlled and examined theories as to that life. without wishing to be paradoxical, or harshly destructive of the carefully cherished sentiment of poetic justice so dear to the british mind (and the french mind, too, for that matter), i give it as my firm opinion that oscar wilde was, on the whole, fairly happy during the last years of his life. he had an extraordinarily buoyant and happy temperament, a splendid sense of humour, and an unrivalled faculty for enjoyment of the present. of course, he had his bad moments, moments of depression and sense of loss and defeat, but they were not of long duration. it was part of his pose to luxuriate a little in the details of his tragic circumstances. he harrowed the feelings of many of those whom he came across; words of woe poured from his lips; he painted an image of himself, destitute, abandoned, starving even (i have heard him use the word after a very good dinner at paillard's); as he proceeded he was caught by the pathos of his own words, his beautiful voice trembled with emotion, his eyes swam with tears; and then, suddenly, by a swift, indescribably brilliant, whimsical touch, a swallow-wing flash on the waters of eloquence, the tone changed and rippled with laughter, bringing with it his audience, relieved, delighted, and bubbling into uncontrollable merriment. he never lost his marvellous gift of talking; after he came out of prison he talked better than before. everyone who knew him really before and after his imprisonment is agreed about that. his conversation was richer, more human, and generally on a higher intellectual level. in french he talked as well as in english; to my own english ear his french used to seem rather laboured and his accent too marked, but i am assured by frenchmen who heard him talk that such was not the effect produced on them. he explained to me his inability to write, by saying that when he sat down to write he always inevitably began to think of his past life, and that this made him miserable and upset his spirits. as long as he talked and sat in cafés and "watched life," as his phrase was, he was happy, and he had the luck to be a good sleeper, so that only the silence and self-communing necessary to literary work brought him visions of his terrible sufferings in the past and made his old wounds bleed again. my own theory as to his literary sterility at this period is that he was essentially an interpreter of life, and that his existence in paris was too narrow and too limited to stir him to creation. at his best he reflected life in a magic mirror, but the little corner of life he saw in paris was not worth reflecting. if he could have been provided with a brilliant "entourage" of sympathetic listeners as of old and taken through a gay season in london, he would have begun to write again. curiously enough, society was the breath of life to him, and what he felt more than anything else in his "st. helena" in paris, as he often told me, was the absence of the smart and pretty women who in the old days sat at his feet! a. oscar wilde's last years in paris.--ii the french possess the faculty, very rare in england, of differentiating between a man and his work. they are utterly incapable of judging literary work by the moral character of its author. i have never yet met a frenchman who was able to comprehend the attitude of the english public towards oscar wilde after his release from prison. they were completely mystified by it. an eminent french man-of-letters said to me one day: "you have a man of genius, he commits crimes, you put him in prison, you destroy his whole life, you take away his fortune, you ruin his health, you kill his mother, his wife, and his brother (_sic_), you refuse to speak to him, you exile him from your country. that is very severe. in france we should never so treat a man of genius, but _enfin ça peut se comprendre_. but not content with that, you taboo his books and his plays, which before you enjoyed and admired, and _pour comble de tout_ you are very angry if he goes into a restaurant and orders himself some dinner. _il faut pourtant qu'il mange ce pauvre homme!_" if i had been representing the british public in an official capacity i should have probably given expression to its views and furnished a sufficient repartee to my voluble french friend by replying: "_je n'en vois pas la nécessité_." fortunately for oscar wilde, the french took another view of the attitude to adopt towards a man who has offended against society, and who has been punished for it. never by a word or a hint did they show that they remembered that offence, which, in their view, had been atoned for and wiped out. oscar wilde remained for them always _un grand homme, un maître_, a distinguished man, to be treated with deference and respect and, because he had suffered much, with sympathy. it says a great deal for the innate courtesy and chivalry of the french character that a man in oscar wilde's position, as well known by sight, as he once remarked to me, as the eiffel tower, should have been able to go freely about in theatres, restaurants, and cafés without encountering any kind of hostility or even impertinent curiosity. it was this benevolent attitude of paris towards him that enabled him to live and, in a fashion, to enjoy life. his audience was sadly reduced and precarious, and except on some few occasions it was of inferior intellectual calibre; but still he had an audience, and an audience to him was everything. nor was he altogether deprived of the society of men of his own class and value. many of the most brilliant young writers in france were proud to sit at his feet and enjoy his brilliant conversation, chief among whom i may mention that accomplished critic and essayist, monsieur ernest lajeunesse, who is the author of what is perhaps the best posthumous notice of him that has been published in france in that excellent magazine, the "revue blanche"; among older men who kept up their friendship with him, octave mirbeau, moréas, paul fort, henri bauer, and jean lorrain may be mentioned. in contrast to this attitude taken up towards him by so many distinguished and eminent men, i cannot refrain from recalling the attitude adopted by the general run of english-speaking residents in paris. for the credit of my country i am glad to be able to put them down mostly as americans, or at any rate so americanised by the constant absorption of "american drinks" as to be indistinguishable from the genuine article. these gentlemen "guessed they didn't want oscar wilde to be sitting around" in the bars where they were in the habit of shedding the light of their presence, and from one of these establishments oscar wilde was requested by the proprietor to withdraw at the instance of one of our "american cousins" who is now serving a term of two years penal servitude for holding up and robbing a bank! oscar wilde, to do him justice, bore this sort of rebuff with astonishing good temper and sweetness. his sense of humour and his invincible self-esteem kept him from brooding over what to another man might have appeared intolerable, and he certainly possessed the philosophical temperament to a greater extent than any other man i have ever come across. every now and then one or other of the very few faithful english friends left to him would turn up in paris and take him to dinner at one of the best restaurants, and anyone who met him on one of these occasions would have found it difficult to believe that he had ever passed through such awful experiences. whether he was expounding some theory, grave or fantastic, embroidering it the while with flashes of impromptu wit or deepening it with extraordinary and intimate learning (for, as ernest lajeunesse says, _he knew everything_), or whether he was "keeping the table in a roar" with his delightfully whimsical humour, summer-lightning that flashed and hurt no one, he was equally admirable. to have lived in his lifetime and not to have heard him talk is as though one had lived for years at athens without going to look at the parthenon. i wish i could remember one-hundredth part of the good things he said. he was extraordinarily quick in answer and repartee, and anyone who says that his wit was the result of preparation and midnight oil can never have heard him speak. i remember once at dinner a friend of his who had formerly been in the "blues," pointing out that in the opening stanza of "the ballad of reading jail" he had made a mistake in speaking of the "scarlet coat" of the man who was hanged; he was, as the dedication of the poem says, a private in the "blues," and his coat would therefore naturally not be scarlet. the lines go-- he did not wear his scarlet coat, for blood and wine are red. "well, what could i do," said oscar wilde plaintively, "i couldn't very well say he did not wear his azure coat, for blood and wine are blue-- could i?" the last time i saw him was about three months before he died. i took him to dinner at the grand café. he was then perfectly well and in the highest spirits. all through dinner he kept me delighted and amused. only afterwards, just before i left him, he became rather depressed. he actually told me that he didn't think he was going to live long; he had a presentiment, he said. i tried to turn it off into a joke, but he was quite serious. "somehow," he said, "i don't think i shall live to see the new century." then a long pause. "if another century began, and i was still alive, it would be really more than the english could stand." and so i left him, never to see him alive again. just before he died he came to, after a long period of unconsciousness and said to a faithful friend who sat by his bedside, "i have had a dreadful dream; i dreamt that i dined with the dead." "my dear oscar," replied his friend, "i am sure you were the life and soul of the party." "really, you are sometimes very witty," replied oscar wilde, and i believe those are his last recorded words. the jest was admirable and in his own _genre_; it was prompted by ready wit and kindness, and because of it oscar wilde went off into his last unconscious phase, which lasted for twelve hours, with a smile on his lips. i cherish a hope that it is also prophetic, death would have no terrors for me if only i were sure of "dining with the dead."[ ] "de profundis" _a criticism by_ "_a_" (lord alfred douglas?) "the english are very fond of a man who admits he has been wrong." (_the ideal husband_). "de profundis" _a criticism by_ lord alfred douglas in a painful passage in this interesting posthumous book (it takes the form of a letter to an unnamed friend), oscar wilde relates how, on november the th, , he stood for half an hour on the platform of clapham junction, handcuffed and in convict dress, surrounded by an amused and jeering mob. "for a year after that was done to me," he writes, "i wept every day at the same hour and for the same space of time." that was before he had discovered or thought he had discovered that his terrible experiences in prison, his degradation and shame were a part, and a necessary part, of his artistic life, a completion of his incomplete soul. after he had learnt humility in the bitterest school that "man's inhumanity to man" provides for unwilling scholars, after he had drained the cup of sorrow to the dregs, after his spirit was broken--he wrote this book in which he tried to persuade himself and others that he had learnt by suffering and despair what life and pleasure had never taught him. if oscar wilde's spirit, returning to this world in a malicious mood, had wished to devise a pleasant and insinuating trap for some of his old enemies of the press, he could scarcely have hit on a better one than this book. i am convinced it was written in passionate sincerity at the time, and yet it represents a mere mood and an unimportant one of the man who wrote it, a mood too which does not even last through the pages of the book. "the english are very fond of a man who admits he has been wrong," he makes one of his characters in "the ideal husband" say, and elsewhere in this book he compares the advantages of pedestals and pillories in their relation to the public's attitude towards himself. well here he is in the pillory, and here also is mr. courtney in the "daily telegraph" getting quite fond of him for the very first time. here is oscar wilde, "a genius," "incontestably one of the greatest dramatists of modern times" as he is now graciously allowed to be, turning up unexpectedly with an admission that he was in the wrong, and telling us that his life and his art would have been incomplete without his imprisonment, that he has learnt humility and found a new mode of expression in suffering. he is "purged by grief," "chastened by suffering," and everything, in short, that he should be, and mr. courtney is touched and pleased. what mr. courtney and others have failed to realise, and what wilde himself did realise very soon after he wrote this interesting but rather pathetically ineffective book, is that the mood which produced it was no other than the first symptom of that mental and physical disease generated by suffering and confinement which culminated in the death of its gifted and unfortunate author a few years later. as long as the spirit of revolt was left in oscar wilde, so long was left the fire of creative genius. when the spirit of revolt died, the flame began to subside, and continued to subside gradually with spasmodic flickers till its ultimate extinction. "i have got to make everything that has happened good for me." he writes, "the plank bed, the loathsome food, the hard rope shredded into oakum till one's finger tips grow dull with pain, the menial offices with which each day begins, the harsh orders that routine seems to necessitate, the dreadful dress that makes sorrow grotesque to look at, the silence, the solitude, the shame--each and all these things i have to transform into a spiritual experience. there is not a single degradation of the body which i must not try and make into a spiritualising of the soul." but, alas! plank beds, loathsome food, menial offices, and oakum picking do not spiritualise the soul; at any rate, they did not spiritualise oscar wilde's soul. the only effect they had was to destroy his magnificent intellect, and even, as some passages in this book show to temporarily cloud his superb sense of humour. the return of freedom gave him back the sense of humour, and the wreck of his magnificent intellect served him so well to the end of his life that, although he had hopelessly lost the power of concentration necessary to the production of literary work, he remained to the day of his death the most brilliant and the most intellectual talker in europe. it must not be supposed, however, that this book is not a remarkable book and one which is not worth careful reading. there are fine prose passages in it, and occasional felicities of phrase which recall the oscar wilde of "the house of pomegranates" and the "prose-poems," and here and there rather unexpectedly comes an epigram like this for example: "there were christians before christ. for that we should be grateful. the unfortunate thing is that there have been none since." true, he spoils the epigram by adding, "i make one exception, st. francis of assisi." a concession to the tyranny of facts and the relative importance of sincerity to style, which is most uncharacteristic of the "old oscar." nevertheless, the trace of the master hand is still visible, and the book contains much that is profound and subtle on the philosophy of christ as conceived by this modern evangelist of the gospel of life and literature. one does not travel further than the rd page of the book before finding glaring and startling inconsistencies in the mental attitude of the writer towards his fate, for whereas on page in a rather rhetorical passage he speaks of the "eternal disgrace" he had brought on the "noble and honoured name" bequeathed him by his father and mother, on page "reason" tells him "that the laws under which he was convicted are wrong and unjust laws, and the system under which he has suffered a wrong and unjust system." but this is the spirit of revolt not quite crushed. he says that if he had been released a year sooner, as in fact he very nearly was, he would have left his prison full of rage and bitterness, and without the treasure of his new-found "humility." i am unregenerate enough to wish that he had brought his rage and bitterness with him out of prison. true, he would never have written this book if he had come out of prison a year sooner, but he would almost certainly have written several more incomparable comedies, and we who reverenced him as a great artist in words, and mourned his downfall as an irreparable blow to english literature would have been spared the rather painful experience of reading the posthumous praise now at last so lavishly given to what certainly cannot rank within measurable distance of his best work. a. from "_the motorist and traveller_" (march , ). list of privately issued historical, artistic, and classical works in english thaïs _romance of the byzantine empire (fourth century)_ from the french of anatole france with twenty copper-plate etchings by martin van maele price _s._ "thaÏs" is a work of religious mysticism. the story of the priest-hero who sought to stamp out the flames of nature is told with a delicacy and realism that will at once charm and command the reader's attention. anatole france is one of the most brilliant literary men in the world, and stands foremost amongst giants like daudet, zola, and maupassant. the book before us is a historical novel based on the legend of the conversion of the courtesan thaïs of alexandria by a monk of the thebaïd. thaïs may be described as first cousin to the pelagia of charles kingsley "hypatia;" indeed, the two books, dealing as they do with the same place and period, alexandria in the fourth century, offer points of resemblance, as well as of difference, many and various, and sufficiently interesting to be commended to the notice of students of comparative criticism. there is, however, a subtle and profound moral lesson about the work of mr. anatole france which is wanting in kingsley's shallower and more commonplace conception of human motive and passion. the keynote is struck in the warning which an old schoolfellow of the monk paphnutius addresses to him when he learns of his intention to snatch thaïs as a brand from the burning: "beware of offending venus. she is a powerful goddess; she will be angry with you if you take away her chief minister." the monk disregards the warning of the man of the world, and perseveres with his self-imposed task, and that so successfully that thaïs forsakes her life of pleasure, and ultimately expires in the odour of sanctity. _custodes, sed quis custodiet ipsos?_ paphnutius has deceived himself, and has failed to perceive that what he took for zeal for a lost soul was in reality but human desire for a fair face. the monk, who has won heaven for the beautiful sinner, loses it himself for love of her, and is left at the end, baffled and blaspheming, before the dead body of the woman he has loved all the time without knowing that he loved her. it is impossible for the reviewer to convey any adequate notion of the subtle skill with which the author deals with a delicate but intensely human theme. alike as a piece of psychical analysis and as a picture of the age, this book stands head and shoulders above any that we have ever read about the period with which it deals. it is a work of rare beauty, and, we may add, of profound moral truth, albeit not written precisely _virginibus puerisque_. it is emphatically the work of a great artist.--(from a notice in "_the pall mall gazette_"). the well of santa clara this work is, from the deep interest of its contents, the beauty of its typography and paper, and the elegance and daring of the illustrations, one of the finest works in _édition de luxe_ yet offered to the collectors of rare books. apart from the other stories, all of them written with that exquisite grace and ironical humour for which anatole france is unmatched, "the human tragedy," forming half of the book, is alone worthy to rank amongst the master-efforts of literature. the dominant idea of "the human tragedy" is foreshadowed by the quotation from euripedes: _all the life of man is full of pain, and there is no surcease of sorrow. if there be aught better elsewhere than this present life, it is hid, shrouded in the clouds of darkness._ the english rendering of this work is, from its purity and strength of style, a veritable _tour de force_. the book will be prized and appreciated by scholars and lovers of the beautiful in art. new grasset characters have been used for this work, limited to numbered copies on handmade paper; each page of text is contained in an artistic green border, and the work in its entirety constitutes a volume of rare excellence. twenty-one clever copper-plate engravings (in the most finished style) by martin van maele. the well of santa clara _contents_ pages prologue.--the reverend father adone doni i. san satiro ii. messer guido cavalcanti iii. lucifer iv. the loaves of black bread v. the merry-hearted buffalmacco i. the cockroaches ii. the ascending up of andria tafin iii. the master iv. the painter vi. the lady of verona vii. the human tragedy i. fra giovanni ii. the lamp iii. the seraphic doctor iv. the loaf on the flat stone v. the table under the fig-tree vi. the temptation vii. the subtle doctor viii. the burning coal ix. the house of innocence x. the friends of order xi. the revolt of gentleness xii. words of love xiii. the truth xiv. giovanni's dream xv. the judgment xvi. the prince of this world viii. the mystic blood ix. a sound security x. history of doña maria d'avalos and the duke d'andria xi. bonaparte at san miniato price: one guinea. oscar wilde's works. poems in prose: the artist the doer of good the disciple the master the house of judgment, etc. limited edition of five hundred copies on superior english vellum paper, and printed in grasset characters in red and black. price s. fifty copies on japanese paper. price s. oscar wilde: what never dies (ce qui ne meurt pas) one volume small crown vo., bound in white parchment. nearly pages. price s. d. translated into english by 'sebastian melmoth' (oscar wilde), from the french of barbey d'aurevilly. a strange and powerful romance of love and passion in a country house, similar to the plot unfolded in guy de maupassant's "lady's man," but told in even more lordly and brilliant language; the wonderful french of "barbey" being rendered into yet more wonderful english by oscar wilde. the picture of dorian gray by oscar wilde sole authorized version _limited edition of one hundred copies on real hand-made english paper, price s._ translated from the latin by oscar wilde the satyricon of petronius a literal and complete translation with notes and introduction. circular free for - / d. _price_, £ . _s._ _d._ _fifteen copies on papier de chine, price_ £ . s. this edition is not only the ... most complete and brilliant ever done into english, but it constitutes also a typographical _bijou_, being printed in a limited number on handmade paper in red and black throughout. unknown poems by lord byron don leon a poem by the late lord byron author of childe harold, don juan, etc. and forming part of the private journal of his lordship, supposed to have been entirely destroyed by thos. moore. "_pardon, dear tom, these thoughts on days gone by; me men revile and thou must justify. yet in my bosom apprehensions rise (for brother poets have their jealousies), lest under false pretences thou shoudst turn a faithless friend, and these confessions burn._" "don juan" is generally spoken of as a composition remarkable for its daring gallantry; but here is a long connected poetical work by the same author which far outdistances "don juan" both in audacity of conception and licence of language. these poems were issued _sub rosâ_ in , and owing to the fact that interested persons bought up immediately on its appearance and burnt the entire output, any stray copies that chanced to escape the general destruction, when they turn up nowadays, fetch from five to ten guineas each. _the size of the book is small crown octavo, pp., in artistic paper wrappers._ this issue has been limited to two hundred and fifty copies as follows: price: on ordinary vellum paper s. d. on french hand-made paper £ . s. detailed circular on demand for d. curious by-paths of history studies of louis xiv; richelieu; mdlle de la vallière; madame de pompadour; sophie arnould's sickness; the true charlotte corday; a savage "hound;" in the hands of the "charcutiers;" napoleon's superstitions; the affair of madame récamier and queen elizabeth of england, etc. followed by a fascinating study of flagellation in france from a medical and historical standpoint with special foreword by the editor, dealing with the reviewers of a previous work, and sundry other cognate matters good to be known; particularly concerning the high-handed proceedings of british philistinism, which here receives "a rap on the knuckles." a fine realistic frontispiece after a design by daniel vierge, etched by f. massÉ. the whole (in two volumes), price s. with this book is given away (undercover) a fine plate entitled _conjugal correction_, reproduced in aquatint by the maison goupil, of paris, after the famous oil painting of correggio. fascinating historical studies by a french physician. the secret cabinet of history peeped into by a doctor (dr. cabanès) translated by w. c. costello, and preceded by a letter from the pen of m. victorien sardou (de l'académie française). one stout volume of pages. edition limited to copies, on fine quality dutch (van gelder) azure paper, with wide margins and untrimmed edges, specially manufactured for this edition; cloth bound. price s. d. _the "get up" of the book will please all who like beautiful printing and choice paper._ although the bizarre character of some of the subjects may tempt us to imagine that it is all a fiction, torn from the "arabian nights," and placed in an eighteenth century setting, the references and authorities marshalled by dr. cabanès will quickly convince the sceptically inclined that the whole is based on unimpeachable documents. "les cent nouvelles nouvelles" (louis xi.) done now for the first time into english. one hundred merrie and delightsome stories right pleasaunte to relate in all goodly compagnie by way of joyaunce and jollity two volumes demy vo., over pages on fine english antique deckle-edged paper, with fifty coloured illustrations by lÉon lebÈque, the whole strongly bound in english water-coloured silk cloth. price £ . s. numbered copies printed for england and america also large numbered copies printed on japanese vellum price: £ . s. net although this work has been published many times in french during the last four-and-a half centuries, it has never hitherto been done into english, and in fact is little known in england at all on account of its archaic form, which renders the reading of the original impossible to any but a student of old french. very little inferior to boccaccio and far superior to the heptameron, the stories possess a brightness and gaiety entirely their own; moreover they are of high literary merit. illustrated circular free by post for d. the ... evolution and dissolution of the sexual instinct ... by ... doctor charles fÉrÉ of the bicêtre hospital, (paris) price: s. "truth and science are never immoral; but it cannot be denied that the narration of facts relating to sexual physiology and pathology, if their real significance is not pointed out, may be the cause of perversion in the case of predisposed subjects. the danger appears more serious to those who think that normal individuals may be perverted under the influence of environment, and yet more serious when the sexual instinct is represented as an uncontrollable instinct, which nobody can resist, however abnormal the form in which the instinct may reveal itself." the only worthy translation into french oscar wilde intentions traduction française de hugues rebell préface de charles grolleau _orné d'un portrait_ un volume in- o carré. impression de luxe sur _antique vellum_. prix: francs. il a été tiré _trente_ exemplaires sur japon impérial. prix: francs. paris charles carrington, libraire-editeur , faubourg montmartre, notice "intentions" est un des ouvrages les plus curieux qui se puisse lire. on y trouve tout l'esprit, si paradoxal, toute l'étonnante culture du brillant écrivain que fut oscar wilde. des cinq _essais_ que contient ce livre, trois sont sous forme de dialogue et donnent l'impression parfaite de ce qui fut le plus grand prestige de wilde: la causerie. la traduction que nous publions aujourd'hui, outre sa fidélité scrupuleuse et son incontestable élégance, offre cet attrait particulier d'être le dernier travail d'un des jeunes maîtres de la prose française, hugues rebell, qui l'acheva peu de jours avant sa mort. la préface de m. charles grolleau, écrite avec une délicatesse remarquable et une émotion pénétrante, constitue la plus subtile étude psychologique que l'on ait jamais publiée sur oscar wilde. sous presse: _du même auteur_: poèmes en prose. la duchesse de padoue. la maison des grenades. l'oeuvre d'oscar wilde demande à être traduite à la fois avec précision et avec art. les phrases ont des significations si ténues et le choix des mots est si habile qu'une traduction défectueuse, abondante en contre-sens ou en coquilles, risquerait de décevoir grandement le lecteur. car il faut bien compter que ceux qui se soucient de connaître oscar wilde ne peuvent être ni des concierges ni des cochers de fiacre; ils n'appartiennent certainement pas à ce «grand public» qui se délecte aux émouvants feuilletons de nos quotidiens populaires ou qui savoure avidement les élucubrations égrillardes de certains fabricants de prétendue littérature. c'est ce qu'avait compris l'éditeur carrington quand il chargea hugues rebell de lui traduire _intentions_. ces essais d'oscar wilde représentent plus particulièrement le côté paradoxal et frondeur de sa personalité. il y exprime ses idées ou plutôt ses subtilités esthétiques; il y «cause» plus qu'ailleurs, à tel point que trois de ces essais sur cinq sont dialogués; l'auteur s'entretient avec des personnages qu'il suppose aussi cultivés, aussi beaux esprits que lui-même: «s'entretient» est beaucoup dire, car ce sont plutôt des contradicteurs auxquels il suggère les objections dont il a besoin pour poursuivre le développement et le triomphe de ses arguments. la conversation vagabonde à plaisir et le causeur y fait étalage de toutes les richesses de son esprit, de son imagination, de sa mémoire. au milieu de ces citations, de ces allusions, de ces exemples innombrables empruntés à tous les temps et à tous les pays, le traducteur a chance de s'égarer s'il n'est lui-même homme d'une culture très sûre et très variée. hugues rebell pouvait, sans danger de paraître ignorant ou ridicule, entreprendre de donner une version d'_intentions_. il n'avait certes pas fait de la littérature anglaise contemporaine, non plus que d'aucune époque, l'objet d'études spéciales. mais il connaissait cette littérature dans son ensemble beaucoup mieux que certains qui s'autorisent de quelques excursions à londres pour clamer à tout venant leur compétence douteuse. j'ai souvenir de maintes occasions où rebell, avec cet air mystérieux qu'il ne pouvait s'empêcher de prendre pour les choses les plus simples, m'attirait à l'écart de tel groupe d'amis, où la conversation était générale, pour me parler de tel jeune auteur sur qui l'une de mes chroniques avait attiré son attention. et, chaque fois, il faisait preuve, en ces matières, d'un savoir très étendu. hugues rebell fit donc cette nécessaire traduction, et, dit l'éditeur dans une note préliminaire, «c'est le dernier travail auquel il put se livrer. il nous en remit les derniers feuillets peu de jours avant sa mort». rebell devait préfacer ce travail d'une étude sur la vie et les oeuvres du poète anglais, étude qu'il ne put qu'ébaucher, malheureusement, car, avec gide,--mais celui-ci d'un point de vue différent et peut-être opposé,--il était exclusivement qualifié pour saisir, démêler et interpréter l'étrange personnalité de wilde. quelques fragments de cette étude nous sont donnés cependant et ils nous font très vivement regretter que le vigoureux et paradoxal auteur de l'_union des trois aristocraties_ n'ait pu achever son travail. mais ce regret bien légitime se mitige grandement à mesure qu'on lit la belle préface de m. charles grolleau. prenant pour épigraphe cette pensée de pascal: «je blâme également et ceux qui prennent le parti de louer l'homme, et ceux qui le prennent de le blâmer, et ceux qui le prennent de se divertir; et je ne puis approuver que ceux qui cherchent en gémissant», m. grolleau s'efforce de comprendre et de résoudre ce «douloureux problème» que fut wilde. et il le fait avec cette réserve et ce parfait bon goût que doivent s'imposer les véritables amis et les sincères admirateurs d'oscar wilde. il y a plus, dans ces cinquante pages: il y a l'une des meilleures études qui aient jamais été faites du brillant dramaturge. bien qu'il s'en défende, m. grolleau, dans cette langue élégante et harmonieuse que lui connaissent ceux qui ont lu ses beaux vers, réussit a discerner mieux et à mieux révéler que certaines diatribes «l'âme et la passion» de l'auteur de _de profundis_. je me suis interdit d'écrire une biographie. je ne connais que l'écrivain, et l'homme est trop vivant encore et si blessé! j'ai la dévotion des plaies, et le plus beau rite de cette dévotion est le geste qui voile. toute «cette meditation sur une âme très belle» est écrite avec ce tact délicat et cette tendre sympathie. ainsi, après avoir admiré ces émouvantes pages, le lecteur peut aborder dans un état d'esprit convenable les essais parfois déconcertants qui sont réunis sous le titre significatif d'_intentions_. c'est dans cette belle édition qu'il faut les lire. on sait avec quel souci d'artiste m. carrington établit ses volumes; il n'y laisse pas de ces incroyables coquilles, de ces épais mastics qui ressemblent si fort à des contre-sens, et, sachant quel public intelligent et éclairé voudrait ce livre, il n'a pas eu l'idée saugrenue d'abîmer ses pages par d'inutiles notes assurant le lecteur par exemple que dante a écrit la divine comédie, que shelley fut un grand poète, que keats mourut poitrinaire, que george eliot était femme de lettres et lancret peintre. un portrait de l'auteur est reproduit en tête de cette excellente édition. henry-d. davray. _(extrait du "mercure de france," septembre )._ footnotes: [ ] hugues rebell. [ ] hugues rebell. [ ] sebastian melmoth (oscar wilde). [ ] hugues rebell. [ ] _de profundis._ [ ] hugues rebell. [ ] _studies in prose & verse_, by arthur symons. (lond. ). [ ] sebastian melmoth. [ ] _intentions._ [ ] hugues rebell. [ ] _macaulay._ [ ] de profundis, . [ ] de profundis, . [ ] both of the articles given above appeared for the first time in the st. james's gazette. transcriber's notes: in this version, the oe ligature has been replaced by the two letters, e.g. dioececis. text enclosed by underscores is in italics (_italics_). text enclosed by equal signs is in bold face (=bold=). the original text contained greek letters which have been transliterated in this version and enclosed in asterisks, e.g. *paroikia*. minor punctuation errors in the original text have been corrected in this version. handbooks for the clergy edited by arthur w. robinson, b.d. vicar of allhallows barking by the tower the legal position of the clergy the legal position of the clergy by p. v. smith, ll.d. chancellor of the diocese of manchester author of "the law of churchwardens and sidesmen in the twentieth century," etc. longmans, green, and co. paternoster row, london new york and bombay _all rights reserved_ preface in the following pages an endeavour has been made to give a succinct sketch of the legal position of the parish clergy of the church of england in respect both of spiritualities and of temporalities. the book, being intended for their use, does not touch upon the subject of ordination by which they acquired the status of deacons or priests. nor does it deal with the episcopate or the non-parochial clergy, except so far as these subjects are connected with the parochial system. like all other human arrangements, our english church law is, of course, far from being ideally perfect. it may be safely affirmed that there has never been either a church or a state in which the law has actually been what it ideally ought to have been. it is important to recognise the difference between the two positions; for there has sometimes been a disposition on the part of individuals to confuse them, and to treat what they consider to be the ideal law, as if it were the actual law, and as if, as such, it demanded their loyal obedience. such an attitude, whether in ecclesiastical or civil matters, is anarchical in its tendency; for it sets up private judgment instead of the constituted authority as the criterion of what ought or ought not to be done. it can only be justified where the actual law is absolutely inconsistent with the fundamental principles of morality or of christian truth. the object of the present treatise is to state succinctly what the law is,--not what it ought to be; and no opinion is expressed or suggestion offered as to points in which amendment would be proper or expedient. within the limited compass of the book it is obviously impossible to enter into details; and the reader who desires information as to these will find them in the authorities to which reference is made. it must also be borne in mind that the general law on the subject of buildings, property, and pecuniary rights is, in various places, modified by special local enactments or customs. these can only be ascertained on the spot, or by consulting the acts of parliament in which they are embodied or recorded. one other word of caution is desirable. in explaining the legal position of the parochial clergy, it is, of course, necessary to indicate the exact limits of their rights. if they venture beyond these limits, they are manifestly in the wrong. but no community, either ecclesiastical or civil, could maintain its well-being, or even its coherence, if every individual were on all occasions to take advantage of the full tether of his legal rights. it will frequently be wise and proper for the clergy, in their relations with their ecclesiastical superiors or with the lay officials and other laity of the parish, not to adopt the most uncompromising attitude which the letter of the law permits to them. the dictates of love and of christian forbearance, and of consideration for the claims of others, as well as of expediency, will not warrant the infringement by an individual of the ordinances of either the church or the state. but they will more than justify him in refraining from taking up a position of defiance which these ordinances may strictly entitle him to assume. p. v. smith. _easter, _. contents list of abbreviations pages xxi-xxiv chapter i general legal position . spiritual, ecclesiastical, and civil status of the clergy. . sources of church law. . written and unwritten law--foreign canon law--pre-reformation canons--acts of parliament--canons of --canons of --other canons. . decisions of church courts--distinction between judicial and legislative action. . legal status of the ancient parish--rector or parson--patronage or advowson--vicar--perpetual curate. . dissolution of the monasteries--impropriate rectories--new churches and ecclesiastical parishes--assistant parochial clergy--titular vicars--incumbent--curate. . minister in charge--lecturer. . status of clergy ordained elsewhere than in england or ireland, or ordained for service in the colonies or foreign countries--scottish clergy. . benefices--beneficed and unbeneficed clergy. . bishops, their relation to the clergy--suffragan bishops--chancellors. . archdeacons. . rural deans. . judicial procedure--church discipline act, --public worship regulation act, --clergy discipline act, . . abstinence of clergy from secular pursuits. . civil exemptions--municipal and parliamentary qualifications and disqualifications. . restrictions as to labour, business, and trade--lawful exceptions--penalties for unlawful trading. . protection in performance of religious rites--act against brawling. . indelibility of orders--relinquishment of clerical status pages - chapter ii beneficed clergy . admission by bishop on presentation of patron--lapse to bishop, archbishop, or crown. . transfers of advowsons or rights of presentation--next presentations--power of patron to present himself--restrictions under benefices act, . . qualification for admission--grounds for refusal by bishop--testimony as to fitness. . procedure in case of refusal by bishop. . publication of notice of intended admission. . mode of admission--institution--licence--collation--declarations of assent and against simony--oaths of allegiance and canonical obedience--reading of thirty-nine articles. . effect of admission--induction. . fees on admission. . cure of souls--duties laid down in ordination service--residence--divine service--marriages--burials--private ministrations. . exclusive right of administration--superior right of bishop--modern comity as between town parishes. . private ministrations--service in unconsecrated buildings--meetings for worship. . private chapels--chapels of institutions--unconsecrated proprietary chapels. . formation of new parishes--approval or otherwise of incumbent. . holding of two benefices. . neglect of duty--commission of inquiry--procedure on adverse report of commission. . residence on benefice--forfeitures for non-residence--bishop's licence of non-residence--grounds for licence. . monition, sequestration, and avoidance of benefice for non-residence. . performance of duties where incumbent is non-resident. . restrictions on interfering with duties during period of non-residence. . reckoning of time as to residence. . vacation of benefice by death, resignation, admission to other preferment, or deprivation. . resignation; unconditional except upon an exchange--engagement to resign illegal except under clergy resignation bonds act, --corrupt resignations and exchanges--pensions under incumbents resignation acts. . vacation of benefice on admission to other preferment. . deprivation _ipso facto_--declaration of vacancy by bishop on conviction of incumbent in certain cases--sentences of deprivation under acts of and pages - chapter iii unbeneficed clergy . classes of unbeneficed clergy--bishop's licence--declaration of assent--examination and admission by bishop--discretion of bishop--revocation of licence. . curates or ministers in charge--(_a_) on vacancy of benefice--(_b_) on sequestration of benefice for incumbent's bankruptcy or debt--(_c_) on incumbent's non-residence--(_d_) on incumbent's neglect of duties--(_e_) on formation of peel district. . assistant curates--stipend--notice to quit or relinquish curacy--discretion of incumbent as to employment--appointment where duties are inadequately performed; or where circumstances of parish require it. . performance of duty by other clergy--discretion of incumbent--licence of bishop--production of licence and entry of names of preachers in a book. . lecturers and preachers--performance of other ministerial duties pages - chapter iv laity of the parish . relations between incumbent and lay officials. . the vestry--constitution, meetings, and voting in ancient parishes, and in new parishes--vestries act, --present functions--select vestries. . churchwardens--election in ancient and new parishes--admission. . parson's or vicar's and people's wardens--duties: (_a_) care of fabric and ornaments of the church and of the churchyard--(_b_) seating of parishioners--(_c_) provision of requisites for service--(_d_) maintenance of order in church and churchyard--(_e_) collection and concurrence in disposal of offertory money--(_f_) charge of church and benefice during vacancy, if appointed sequestrators--restrictions on powers. . sidesmen. . church trustees. . parish clerk--appointment and removal. . sexton. . beadle. . organist and choristers. . officiating of lay readers and other laymen. . other lay work--visiting of poor and sick--sunday schools--church elementary schools. . parochial church councils pages - chapter v divine service . duty of clergy as to uniformity of service--divergence by lawful authority--liberty under act of . . morning and evening prayer--litany--bishop may order two full services, and a third service, with sermon. . notices during divine service--notices on church door--banns. . offertory--other collections in a church or chapel--duty of incumbent as to money entrusted to him. . questions as to the legality of various church ornaments, vestments, and ceremonies--legal decisions as to (_a_) stone holy table--crucifix--cross--candlesticks-- flower-vases--pictures--sculptures--credence table--second holy table-- chancel gates--baldacchino--voice of parishioners in vestry--(_b_) attire of clergy at holy communion--surplice--hood--albe--vestment or chasuble--tunicle--stole--chaplain's scarf--biretta--black gown--(_c_) incense--processions with lighted candles--lighted candles at holy communion--mixed chalice--wafers--agnus dei and other hymns--position of minister--genuflexions--elevation--sign of the cross--ablutions--reservation. . baptism not to be refused--time for the ceremony--private baptism in urgent cases--godparents--reception in church after private baptism--conditional baptism--immersion or affusion--notice to bishop in cases of adult baptism--deacon may baptize--lay baptism. . times for and notice of holy communion--communion not to be unlawfully refused--who are to be repelled from it--procedure in such cases--jenkins _v_. cook--persons coming from other parishes--persons attending dissenting places of worship--persons baptized in another communion and not confirmed. . sermons and homilies--provisions of rubrics, canons, and acts of parliament. . catechising. . churching of women pages - chapter vi marriage . duty of minister to solemnise marriage between persons legally competent--unlawful solemnisation, when a felony--marriage, when void. . original places for banns and marriages--churches of new parishes--licences for banns and marriages in chapels--parishes having no regular services in parish church--where parish church is being rebuilt or repaired--no reconsecration necessary where church is rebuilt or enlarged and position of holy table altered. . persons legally competent to intermarry--religion or absence of religion of the parties no ground for refusal to solemnise marriage. . _minimum_ age--consent of parents or guardians in case of unions--marriage without consent, in absence of notice--marriage below lawful age. . marriage of lunatic or _non compos_, void. . absence, unheard of, for seven years--relief from punishment for bigamy--invalidity of remarriage. divorce abroad--divorce in england under act of --remarriage of divorced persons. . marriage of foreigners--requirements of laws of foreign states--precautions to be observed. . prohibited degrees of kindred and affinity. . publication of banns--time and form--seven days' notice--publication and marriage without notice and due inquiry--publication where parties dwell in different parishes or districts--where one dwells in scotland, or in ireland--what constitutes dwelling--correct names to be published--status need not be published--publication to be from book and signed--forbidding of banns. . marriage, with consent of minister, on registrar's certificate--not permitted on registrar's licence. . marriage on licence of bishop or archbishop of canterbury--grant of bishop's licence--previous affidavit before surrogate--duty of minister on production of licence--names in licence--grant of licence a favour and not a right. . marriage, where and when to be solemnised--priest or deacon may marry--penalty for solemnising marriage at improper place or time. . reading of service after marriage at a registry office--second solemnisation of marriage. . fees for banns, certificate of banns, and marriage. . marriage register books--certificate of marriage. . presumption of marriage of persons coming to holy communion--proof of no marriage--validity of marriage governed by law of place of solemnisation--capacity to contract marriage governed by law of domicile---marriage between british subjects in a foreign country or on board ship pages - chapter vii burial . right of burial by clergyman of the parish where death occurs--bells to be rung--burial in case of death in another parish--relief in case interment is refused--no right to particular hour or spot of burial--incumbent or churchwardens cannot sell or grant grave-spaces in perpetuity or brick graves--reservation of exclusive right of burial on grant of addition to churchyard--faculty for exclusive grave space in other cases--burial of non-parishioners not dying within the parish. . burial of bodies cast up by the sea or tidal or navigable water. . burial of person dying unbaptized or excommunicate and of _felo de se_--burial of child of dissenter or person who has received lay baptism--interment cannot be required without convenient warning. . bringing of corpse into church and burial under church. . fees--prepayment not enforceable--customary amount--on burial of non-parishioners--tables of fees--special fees for brick graves, iron coffins, and other extras--fees and rights of burial where new ecclesiastical parish has its own burial ground. . use of burial service in unconsecrated ground--use of special form--permission of burial without church rites and with or without some other service on notice under act of --day and time for burial--fee. . delivery of registrar's certificate of death or order of coroner at funeral. . fees on interments in cemeteries under cemeteries clauses act, . . burial acts--consecrated and unconsecrated parts of burial grounds--chapels--fees of incumbents, clerks, and sextons--sale of rights to vaults and monuments--burial act, --tables of fees--restrictions on future fees to incumbents, churchwardens, and sextons--commutation of fees. . cremation--burial of cremated remains. . faculty for removal of body from one unconsecrated place of interment to another--licence of home secretary for removal in other cases pages - chapter viii private ministrations . visitation and communion of the sick---canon --order for the visitation--confession and absolution of the sick--regulations as to communion. . preparation for confirmation. . spiritual advice and comfort--confession--absolution. . ordinary visitation and intercourse pages - chapter ix temporalities . possessions and revenues of benefices of ancient parishes and new ecclesiastical parishes. . incumbent a corporation sole--restrictions on his acquisition and holding of landed property--licence in mortmain--mortmain and charitable uses acts--school sites acts--inability to hold as a corporation land upon trusts. . freehold of church and churchyard of ancient parish in rector--chancel repairable by rector--enforcement of repairs--possession and custody of church in incumbent and churchwardens--right of incumbent to keys and control of organ and bells--canon --right of rector to profits of soil of churchyard--felling of trees in churchyard--freehold of church and churchyard of new parish in incumbent--exemption from rates and contributions to making new streets--removal of part of church as a dangerous structure. . rights of bishop and parishioners in church and churchyard--power of incumbent as to ordinary tombstone sand inscriptions in churchyard--glass shades for wreaths--appeal to consistory and higher courts--faculties for monuments in church and other alterations and additions in church and churchyard--application by incumbent and churchwardens after resolution of vestry--consent of rector to alteration in chancel--faculty for vault or space for exclusive burial--removal of earth or bones from churchyard, or other desecration--faculty for diversion of ancient footpath through churchyard, and for throwing part of churchyard into highway--restoration of wall wilfully thrown down--easement of light and air over churchyard--laying out of closed churchyard as a garden and removal of gravestones--restrictions as to building on closed or disused burial-grounds. . glebe, rectorial and vicarial--exemption from tithe--waste--cultivation of glebe--cutting down of trees--opening and working of mines and quarries and gravel pits. . statutory facilities for parsonage houses and other buildings and repair of chancels--gilbert acts--loans by, and mortgages to queen anne's bounty--purchase of land--building and improving of farm buildings and labourers' dwellings--gifts and bequests of parsonage houses and glebe--sale and exchange of parsonage houses and glebe. . letting of parsonage house where incumbent has licence to reside elsewhere. . farming or letting of glebe--agricultural, building, and mining leases. . repair of parsonage house and glebe buildings--ecclesiastical dilapidations act, . . diocesan surveyors--proceedings (_a_) on vacancies in benefices and (_b_) in other cases--exemption from liability for five years after certificate of surveyor. . (_a_) inspection and report by surveyor on a vacancy--objections to report--order of bishop--debt from late incumbent, or his estate, to new incumbent--payment of amount recovered to queen anne's bounty--loan of amount not recovered--balance to be paid by new incumbent--dilapidation account--liability where a vacancy occurs between inspection of buildings and certificate of completion of works. . (_b_) inspection of buildings on complaint of archdeacon, rural dean, or patron, or on request of incumbent--inspection after and during sequestration of benefice--report--objections--decision of bishop--loans--dilapidation account--execution of repairs---charge of cost on income in case of benefice under sequestration--vacancy before execution of works--liability of sequestrator spending excessive amount on repairs. . payment of money out of dilapidation account on certificate of surveyor--liability and duty of incumbent--rebuilding or remodelling instead of repairing. . insurance of parsonage house, glebe buildings, and chancel against fire--production of receipts for premiums at visitations--payment and application of insurance money and reinstatement of buildings in the event of fire--sequestration of benefice to raise any requisite balance. . exemption from act of of buildings let on lease under which tenant is liable--inspection by surveyor. . faculty or consent of bishop and patron to alterations in buildings--liability of incumbent for alterations not so sanctioned--power of bishop to authorise removal of unnecessary buildings--movable sheds or garden frames. . vacation of benefice--cesser of rights of former incumbent--right of widow to two months' residence in parsonage house--inspection of premises pending settlement of dilapidations--emblements--apportionment of rents, tithe rentcharge, and other income. . tithe commutation rentcharge under act of and amending acts--assessment in lieu of great or rectorial tithes and small or vicarial tithes--extraordinary tithe rentcharge in respect of hop and other gardens and orchards--act of --assessment of tithe rentcharge with regard to prices of wheat, barley, and oats--variation according to septennial average prices. . payment of tithe rentcharge and recovery by distress on appointment of receiver--recovery from railway company. . dues (i.) ordinary and (ii.) special--variety by law and custom--payments on the customary four offering days--easter offerings--rights of vicar of new ecclesiastical parish. . mortuaries. . dues for special services or concessions. . pew rents under special or general acts of parliament--under church building and new parishes acts--recovery of pew rents. . first fruits and tenths--exemption of small benefices--number of benefices remaining liable. . income or property tax--on parsonage house, glebe lands, and tithe rentcharge--on landed property in occupation of incumbent--on other stipend, fees, perquisites, and profits--legal deductions--test as to whether receipts are or are not liable to tax--voluntary contributions to minister in respect of his office--grants from curates' augmentation fund--grants from queen victoria clergy fund pages - index pages - list of abbreviations _a. c._ law reports (house of lords and privy council) onwards. _a. & e._ adolphus & ellis's reports (king's bench) - . _add._ addam's reports (ecclesiastical) - . _ambl._ ambler's reports (chancery) - . _app. ca._ law reports (house of lords and privy council) - . _atk._ atkyn's reports (chancery) - . _ayl. par._ ayliffe's _parergon juris canonici anglicani_, . _b. & c._ barnewall & cresswell's reports (king's bench) - . _b. & ad._ barnewall & adolphus' reports (king's bench) - . _b. & ald._ barnewall & alderson's reports (king's bench) - . _b. & sm._ best & smith's reports (queen's bench) - . _beav._ beavan's reports (chancery) - . _bl. comm._ blackstone's commentaries on the laws of england. _burn._ burn's ecclesiastical law, vols. _canon._ one of the constitutions and canons ecclesiastical agreed upon in the canterbury convocation begun in . _c. b._ common bench reports, - . _c. b. n. s._ common bench reports, new series, - . _c. & k._ carrington & kirwan's reports (nisi prius) - . _c. p. d._ law reports (common pleas division) - . _ch._ law reports, chancery division, onwards. _ch. d._ law reports, chancery division, - . _cl. & f._ clark & finnelly's reports (house of lords) - . _clarke, proxis_ francis clarke's _proxis in curiis ecclesiasticis,_ , . _co. inst._ coke's institutes of the laws of england, second part. _co. litt._ coke upon littleton (with notes by hargrave and butler). _co. rep._ coke's reports, - . _com. dig._ comyn's digest. _cowp._ cowper's reports (king's bench) - . _cripps._ cripps's law relating to the church and clergy, th ed., . _cro. jac._ croke's reports (temp. james i.) - . _curt._ curteis's ecclesiastical reports, - . _degge._ sir simon degge's parson's counsellor. _dr. & sm._ drewry & smale's reports (chancery) - . _e. & b._ ellis & blackburn's reports (queen's bench) - . _eccl. & adm._ ecclesiastical & admiralty reports (spinks) - . _el. & el._ ellis & ellis' reports (queen's bench) - . _ex._ exchequer reports, - . _ex. d._ law reports (exchequer division) - . _geary_ geary's law of marriage and family relations (a. & c. black, ). _gibs. cod._ gibson's _codex juris ecclesiastici anglicani_. _hag. cons._ haggard's consistory reports, - . _hag. eccl._ haggard's ecclesiastical reports, - . _h. & c._ hurlstone & coltman's reports (exchequer) - . _h. l. c._ house of lords cases, - . _hob._ hobart's reports, - . _ir. ch. rep. app._ irish chancery reports (appendix). _j. & h._ johnson & hemming's reports (chancery) - . _j. p._ justice of the peace, onwards. _johns._ john johnson's clergyman's vade mecum, th ed., . _jur._ jurist (reports) - . _jur. n. s._ jurist, new series (reports) - . _k. b._ law reports (king's bench) onwards. _l. j. (ch., c.p.,_ law journal - ; new series onwards _ ex. q.b.)_ (chancery, common pleas, exchequer, queen's bench). _l. j. eccl._ ditto (ecclesiastical cases). _l. j. m. c._ ditto (magistrates' cases). _l. j. p. m. & a._ ditto (probate, matrimonial, and admiralty cases). _l. r. a. & e._ law reports, - (admiralty and ecclesiastical). _l. r. c. p. ex. q. b._ ditto (common law). _l. r. ch._ ditto (chancery appeals). _l. r. eq._ ditto (equity). _l. r. h. l._ ditto (house of lords). _l. r. h. l. sc._ ditto (scotch and divorce appeals). _l. r. p. c._ ditto (privy council). _l. t. n. s._ law times (new series) reports, onwards. _m. & s._ maule & selwyn's reports (king's bench) - . _m. & w._ meeson & welsby's reports (exchequer) - . _marsh._ marshall's reports (common pleas) - . _mer._ merivale's reports (chancery) - . _moo. p. c._ moore's privy council reports, - . _moo. p. c. n. s._ ditto, new series, - . _n. r._ new reports (equity and common law) - . _not. of ca._ notes of cases (ecclesiastical and maritime) - . _p._ law reports, probate division, onwards. _p. d._ law reports, probate division, - . _phill._ phillimore's reports (ecclesiastical) - . _phill. eccl. law_ phillimore's ecclesiastical law of the church of england, vols., nd ed., . _p. wms._ peere williams' reports (chancery) - . _q. b._ queen's bench reports (adolphus & ellis) - . _q. b._ law reports (queen's bench) - . _q. b. d._ law reports (queen's bench division) - . _rob. eccl._ robertson's reports (ecclesiastical) - . _sc. l. r._ scottish law reporter, onwards. _sm. churchw._ smith's law of churchwardens and sidesmen in the twentieth century (wells, gardner, & co., s.). _str._ strange's reports, - . _strype's annals_ john strype's annals of the reformation (ed. ) vols. _sw. & tr._ swabey & tristram's reports (probate and divorce) - . _taun._ taunton's reports (common pleas) - . _times law rep._ times law reports, onwards. _t. r._ durnford & east's term reports (king's bench) - . _trist. cons. judgm._ tristram's consistory judgments, - . _ventr._ ventris' reports (king's bench) - . _ves._ vesey junior's reports (chancery) - . _wats._ watson's clergyman's law, th ed., . _willes_ willes reports (common pleas) - . _wils._ wilson's reports (common law) - . _w. r._ weekly reporter, onwards. _yo. & jer._ younge & jervis's reports (exchequer) - . chapter i general legal position . in every country where a christian church is permitted to exist, the power and authority of her clergy to exercise their functions will rest upon a triple basis and be subject to twofold restrictions and limitations. in the first place, (i.) they derive their spiritual authority from their ordination, and this authority is independent of the particular church to which they belong. but, in the next place, they are bound on the one hand (ii.) to obey the regulations of the church of which they are the ministers, and must also, on the other hand, (iii.) conform to the laws of the country in which they labour. for they can only actively exercise their functions by the licence or permission of the ruling power of that country, and subject to any conditions which it may choose to impose. these principles apply equally whether the church is what we call established or not. the only difference is that if the church is established, her own regulations are part of the law of the land; whereas, if she is not established, the law of the land sanctions or suffers the existence of these regulations as a private contract or arrangement between the ministers and other members of the church. but even in the case of an established church, her ministers will obviously be restricted in the exercise of their functions by civil regulations which do not form part of the ecclesiastical law. thus there may be nothing in the law of his church to prevent a clergyman from holding a religious service or preaching in a crowded thoroughfare. but in england and other civilised countries any attempt to do so would be checked by the existing laws against the obstruction of highways. in the following pages no attempt will be made to point out the non-ecclesiastical laws and limitations to which a parish priest is subject. for though they necessarily affect himself and his spiritual work, they do so only indirectly. they touch him not as a minister or even as a christian, but as a citizen; and they touch his spiritual work only in so far as that work has a material and civil element. . confining then our attention to the ecclesiastical law under which the parish priest holds his position and acts in this country, we note in the first place, that the church being here established, this ecclesiastical law is equally the law of the church and the law of the state. this is true whatever be its origin, and however it came into force; and it has always had this double aspect, since (with the exception of the brief interval of the commonwealth--a period which is not recognised in our jurisprudence as having had any legal existence) there never has been a time in our history when the church of england has not been the established church of the nation. portions of our church system and church law have had an exclusively ecclesiastical origin, by canon or otherwise, and have been adopted or acquiesced in by the state. further portions have been created by the joint or concurrent action of the church and the state. other portions again have been due to the sole action of the civil legislature, which has received the tacit assent of the church but has never been confirmed by any formal ecclesiastical ratification. from whichever of these three sources any particular point of our church law may have been derived, its validity and obligation is the same. it binds the church and her ministers and members irrespectively of its origin, and is at present in force unless it has either been formally repealed or become obsolete and fallen into desuetude. . again, like our civil law, our ecclesiastical law is in part written and in part unwritten or customary. foreign canon or conciliar law or papal law is only binding in england so far as it has been received by immemorial custom, and has thus become part of our unwritten law, or has been incorporated into our written law by the ratification of an act of parliament, or a canon or constitution of our own church; and the binding force of the english pre-reformation canons, ordinances, and provincial constitutions stands on the same footing. for the commission authorised by the act for the submission of the clergy of to examine the english canons and constitutions, and, with the king's assent, declare which of them should be in force and which should be abrogated, was never appointed, although the time for its appointment was extended by acts of and , and the scope of its inquiry was extended by the latter act so as to include foreign canons and ordinances.[ ] consequently the only written church law is to be found in acts of parliament and the prayer-book,[ ] and in post-reformation canons, which, however, except so far as they are confirmed by act of parliament, or declare the unwritten law of the church, are only binding on the clergy.[ ] of these the chief are those known as the canons of , which were agreed upon at the sitting of the canterbury convocation begun in that year, and were separately passed two years afterwards by the york convocation. many portions of them are, however, now obsolete; and canon and the last words of canon have been superseded by new canons made in - and . the canons of were passed after the dissolution of parliament, which, according to the custom of the realm, put an end also to the existence of convocation, and they have no legal force.[ ] . much discussion has arisen upon a fourth source of church law, namely, the decisions of our ecclesiastical courts. it is important to draw a clear distinction between legislative and judicial functions. a court, whether ecclesiastical or civil, has nothing to do with enacting laws. its province is confined to interpreting them, when their meaning is obscure or disputed. no doubt, in the course of this interpretation, it will sometimes make law by deciding in a particular way a point on which the legislature has left the matter in doubt, and has not itself clearly laid down the law. many questions affecting the clergy and the church have, in fact, been thus determined by our civil as well as by our ecclesiastical tribunals. but if one of our civil courts, in interpreting the civil law, delivers a decision which does not commend itself to the common sense of the nation, it is recognised that the remedy lies not in altering the constitution of the court and endeavouring to obtain a fresh legal decision which shall upset the other, but in obtaining an act of parliament expressly overruling the unsatisfactory decision. if this is not done, the law may have been technically judge-made, but it is acquiesced in and assented to by parliament and the nation. the same principle applies to the decisions of ecclesiastical courts. the natural way of getting rid of an obnoxious decision is not by fresh adjudication, but by legislation. until it has been reversed by one or other of these means, the decision of a court, which _de facto_ possesses ecclesiastical jurisdiction, is binding upon the church as part of her law for the time being. we have somewhat lost sight of this principle, owing to the extreme difficulty of obtaining any definition or alteration of church law by a legislative process. but the true remedy lies in a healthy revival of the exercise of ecclesiastical legislation, and not in an endeavour to make the ecclesiastical judicature, whether as now existing or after a reform of the courts, discharge legislative functions which are wholly outside its proper province. . the legal position of the parochial clergy depends for its ultimate origin upon the legal status of the ancient _parish_. the word is the english form of the greek *paroikia* (habitation), and the latin _parochia_, an expression originally synonymous with diocese (gr. *dioikêsis*, _i.e._ administration; lat. _dioecesis_, used of a district or part of a province in the roman empire), and applied to the territory assigned to the jurisdiction of a bishop, which was served by him and a college of clergy under him. but under archbishop theodore ( - ) or shortly after his time the process was begun of encouraging the lords of manors and great landowners to build churches for themselves and their dependants, and devote the tithes of their manors or estates to the maintenance of divine worship in these churches, and the performance of religious duties among the residents on the estates. this process was gradually extended throughout the country, and, wherever it was adopted, the tithes were assigned either to the priest for the time being in charge of the church, who was in that case called the _rector_ (governor of the church) or _parson_ (lat. _persona_)[ ] or to a monastery, the members of which were then expected to serve the church. the manor or estate, including any detached and outlying portions, became the parish of the church, and developed into a territorial unit not only for ecclesiastical but also for many civil purposes. where the church was served by a single rector, the landowner who had endowed it and his successors after him were given in return the right of nominating to the bishop a clerk in holy orders to become rector of the church, or, in other words, they acquired the _patronage_ or _advowson_[ ] of the benefice. the frequent cases of neglect in the service of the parish, where a monastery was rector, led, in the thirteenth century, to the requirement that in such cases a succession of individual priests should be appointed to discharge the duty, with a definite portion of the endowments of the benefice as their stipend for so doing. as a rule the great tithes, being those of corn, grain, hay, and wood, were reserved to the monastery, and were in consequence styled rectorial tithes, while the officiating priest, who was styled a _vicar_, was endowed with the remaining or small tithes, which consequently were called vicarial. but in a few instances the officiating priest, instead of becoming entitled to the small tithes, only received a fixed monetary stipend. where this occurred, he was called a _perpetual curate_. it was the rule that rectories, whether in the hands of a monastery or a succession of individual priests, should be endowed not only with the tithes of the parish, but also with a house and lands, which are called glebe; and sometimes these houses and lands, or a part of the lands, were assigned towards the stipend of the vicar. . towards the close of henry viii.'s reign the monasteries were dissolved, and their rectories and the rectorial tithes of the parishes and other endowments attached thereto, and the right of nominating vicars or perpetual curates to the parishes passed, with the rest of the monastic property, in some cases into the hands of the crown or of private individuals who received grants of them from the crown, while in other cases they went to the endowment of episcopal sees or of colleges, hospitals, or other public institutions. whichever happened, the rectory and rectorial tithes became thenceforth _impropriate_, and the vicar or perpetual curate was left with the vicarial tithes and other endowments, or a stipend, as the case might be, to serve the parish as the beneficed parish priest. later on, and particularly during the nineteenth century, the growth of the population and the rapid increase of our urban centres, owing to the steady migration from the villages to the towns, has rendered the building of new churches and the creation of new ecclesiastical areas a matter of pressing importance; and the same causes have necessitated the employment in the larger parishes of additional clergy, whether stipendiary or voluntary. in some cases an old parish has been divided into distinct and separate parishes, each of which has received a portion of the old church endowments, and has become a rectory, vicarage, or perpetual curacy, according to the _status_ of the old parish;[ ] or a vicarage has been converted into a rectory upon a surrender of the rectorial tithes by the impropriator.[ ] but, as a rule, new ecclesiastical districts or parishes have been formed and churches built without resorting to the old endowments; and the church building and new parishes acts provided that the ministers put in charge of these new districts or parishes and churches should be perpetual curates, and should, like the old rectors, vicars, and perpetual curates, be corporations, with perpetual succession.[ ] but in it was enacted that the incumbent of every parish and new ecclesiastical parish, who was authorised to publish banns, and solemnise marriages, churchings, and baptisms in his church, and was not a rector, should, for the purpose of designation only, be styled a vicar, and his benefice should for the same purpose be styled a vicarage.[ ] the modern generic title, which includes every beneficed parish priest, is _incumbent_. the proper and ancient term for rectors, vicars, and all other parochial clergy, whether beneficed or unbeneficed, is _curate_, as having the cure of souls within the parish.[ ] but in modern practice this term, when used by itself, is generally applied to the unbeneficed or assistant curates in a parish. . two other classes of parochial clergy remain to be mentioned. where, for any reason, the incumbent is for a prolonged period disabled from performing the duties of his office, a substitute will be appointed under the designation of minister in charge. again, in some parishes, lectureships have been endowed, and are held by a lecturer, who, in respect of his duties as such, is independent of the incumbent. . under the colonial clergy act, , a priest or deacon (i.) not ordained by an english or irish or scottish bishop, or a bishop acting on the request and under the commission of an english bishop, or (ii.) ordained for service out of the british dominions or for service in the colonies by either of the two archbishops or the bishop of london,[ ] (_a_) cannot, unless he holds or has held preferment or a curacy in england, officiate in any church or chapel in england without the written permission of the archbishop of the province, and without making and subscribing a declaration similar to the declaration of assent prescribed by the clerical subscription act, ;[ ] and (_b_) is not entitled to be admitted to any preferment or to act as curate in england without the previous consent in writing of the bishop of the diocese. but a person who holds preferment or a curacy in an english diocese under the act of , and who has held preferment or acted as curate for a period or periods exceeding in the aggregate two years, may, with the written consent of the bishop, request from the archbishop of the province a licence to exercise his clerical office according to the provisions of the act; and this licence, if issued by the archbishop and registered in the provincial registry, will place him in the same position as if he had been ordained for service in england by an english bishop.[ ] moreover, a clergyman ordained by a bishop of the scottish episcopal church, unless he holds or has previously held preferment in england or ireland, (_a_) is liable to a penalty if he officiates in england more than once within three months without notification to the bishop of the diocese, or if he officiates contrary to an injunction of the bishop; and (_b_) is not entitled to be admitted to any preferment in england without the bishop's consent, which he may withhold without assigning any reason; and (_c_) before being admitted or licensed to any preferment or curacy in england, must make and subscribe before the bishop of the diocese, the declaration of assent prescribed by the clerical subscription act, .[ ] . all rectories, vicarages, and perpetual curacies, whether ancient or established under the church building and new parishes acts, or under any special act of parliament, fall within the term _benefice_, and are of freehold tenure. the term is also applied to non-parochial ecclesiastical offices of a like tenure, such as a deanery, canonry, and archdeaconry. but in the present treatise, which deals only with the parochial clergy, it will be used exclusively of the above-named parochial benefices (which are in popular language called _livings_); and the clergy who hold these benefices will be called beneficed clergy or incumbents. the other parochial clergy will be referred to as unbeneficed clergy or curates. the legal position of the unbeneficed clergy as regards status and property is so different from that of incumbents that it will be convenient to treat of them separately. but the spiritual duties of the two classes, and the discipline to which they are amenable, are similar and can be discussed together. they are alike subject to the same superior ecclesiastical officials and to the same judicial proceedings; and their civil privileges and disabilities in respect of their clerical office are identical. by virtue of their position as parochial clergy they are brought into certain relations with the bishop of the diocese, the archdeacon of the archdeaconry, and the rural dean of the deanery in which their parish is situate. . the bishop is not only the ruler and administrator, but also the chief pastor of the whole of his diocese. as such, he, assisted by his chaplain, has the right whenever he pleases, without the consent of the incumbent, to conduct service or preach in the church of any parish in such lawful manner as he thinks proper. this right extends to consecrating a church within the parish[ ] and, of course, to holding ordinations and confirmations. moreover, he can require from the clergy all reasonable information respecting their parish and parishioners. they owe to him canonical obedience,[ ] and deference in matters which do not fall within the limits of obedience. with the exception that his withdrawal of a licence from a curate is subject to an appeal to the archbishop, he possesses absolute control over the unbeneficed clergy in his diocese, having the right to inhibit them from officiating within it. but he has no such power over the beneficed clergy in respect of their services in their own church and other matters involved in the cure of souls attaching to their benefice. in respect of these matters, their office being a freehold for life, they are independent of him except in such particulars and to such extent as the law has expressly prescribed, and they can only be constrained by him against their will through the instrumentality of legal proceedings. but, equally with the unbeneficed clergy of the diocese, it is their duty to attend the bishop's triennial visitations; and their absence without sufficient cause renders them liable to ecclesiastical censure and punishment. moreover, as will be noticed in the course of this treatise, the bishop has been given, by express enactments, divers powers in relation to both beneficed and unbeneficed clergy on matters of detail, subject in many cases to an appeal to the archbishop of the province. by law and custom part of the administrative functions of the bishop and almost the whole of his judicial functions are discharged by his chancellor, who is at once his vicar-general and the official principal of his consistory court. suffragan bishops, where they are appointed, have no independent authority or jurisdiction, but simply so much as the diocesan bishop, in his discretion, from time to time delegates to them. . the archdeacon is in his archdeaconry next in point of dignity after the bishop and the suffragans (if any) and the chancellor of the diocese.[ ] he is sometimes called _oculus episcopi_, being the bishop's vicar, charged with the duty of inspecting that portion of the diocese which is under his charge and of reporting to the bishop anything which is amiss. besides this general supervision, he holds an annual visitation of his archdeaconry, and admits the churchwardens and sidesmen, except in years of episcopal visitation, when he is inhibited from performing his functions, and these are exercised instead by the bishop in person, or, as regards the admission of churchwardens and sidesmen, by the chancellor.[ ] at his annual visitation, and at other times, as occasion arises, it is the business of the archdeacon to satisfy himself that churches, and especially chancels, are in a proper condition, and to require that any necessary repairs be executed; to take note of the ornaments and utensils of churches, and to ascertain that the services and offices of the church are everywhere duly performed and administered. the clergy are bound to assist the archdeacon in his inspection and inquiries and to attend his visitations.[ ] various duties assigned to him by statute are noticed in subsequent chapters. . rural deans have within their deaneries the same functions and powers of inspection and report as an archdeacon in his archdeaconry. it is their duty to hold from time to time chapters consisting of the beneficed clergy of the deanery or their curates as proxies for them. in the present day these chapters are usually attended not only by the incumbents but also by all the licensed unbeneficed clergy of the deanery.[ ] . judicial procedure in the case of clerical offences is regulated by three statutes of the last century: (i.) the church discipline act, ,[ ] provides that on a complaint or the existence of evil report against a clergyman the bishop may, with the consent of the parties, at once pronounce sentence, and, in the absence of such consent, may, if he thinks fit, issue a commission of inquiry. if the commission reports that there is _primâ facie_ ground for proceedings, the bishop may either try the case in person with assessors, or else send it by letters of request direct to the provincial court. the latter course has in practice been generally adopted, and an appeal may be carried to the judicial committee of the privy council. (ii.) the public worship regulation act, ,[ ] introduced an alternative procedure in matters of ornament and ritual. on the representation of the archdeacon or a churchwarden or any three parishioners, the bishop, unless he is of opinion that no proceedings should be taken upon it, is to require the parties to state whether they are willing to submit to his directions in the matter, and if they assent he is to hear the case and pronounce judgment as he thinks proper, and no appeal is to lie from his judgment. but if they decline to submit the case to the bishop, it is to be heard by the judge appointed under the act, who is in fact the same person as the judge of the two provincial courts, and an appeal lies from his decision to the judicial committee. (iii.) the clergy discipline act, ,[ ] prescribed a new mode of dealing with offences against morality. in certain cases where the offence is proved by a conviction and sentence or an order of a temporal court, the offending clergyman is to be incapable of holding preferment, and the bishop is to declare vacant any preferment which he holds without any further trial. but in all other cases proceedings are to be taken in the consistory court before the chancellor of the diocese, with the addition of four assessors to try any question of fact, if either party demands them. either party may appeal against the judgment of the consistory court on a question of law, and the accused clergyman may, with the leave of the appellate court, appeal on a question of fact. the appeal may at the option of the appellant be either to the provincial court or to the judicial committee of the privy council, but if it is made to the provincial court the decision of that court is final. the net result of the three acts is that (i.) offences of the clergy in respect of morality can only be dealt with under the act of ; (ii.) proceedings for offences in respect of ritual and the ornaments of the church or the minister may be taken either under the act of or under that of ; and (iii.) offences in respect of doctrine, as well as all other offences which do not come under (i.) or (ii.), must be dealt with under the act of . . priests, at their ordination, are reminded of their duty to forsake and set aside, as much as possible, all worldly cares and studies, and are exhorted to apply themselves wholly to their sacred office, and draw all their cares and studies that way; and they promise, among other things, to lay aside the study of the world and the flesh. no similar expressions occur in the form for the making of deacons; but our law recognises no distinction between the two orders of clergy in respect of their civil privileges and disabilities. . a clergyman, whether priest or deacon, is not compellable to serve on a jury, though it is not illegal for him to do so. he may be appointed a justice of the peace or guardian of the poor, may be a member of a parish or district council, and may act as chairman, alderman, or councillor of a county council, and as mayor, alderman, or councillor of any of the metropolitan boroughs. but he is disqualified from being mayor, alderman, or councillor of any other municipal borough;[ ] and he cannot be elected a member of the house of commons;[ ] though, if he is a peer, he may sit in the house of lords. . canon not only forbids ecclesiastical persons to resort, except for their honest necessities, to taverns or alehouses, or to board or lodge therein, or to spend their time in drinking or riot or playing at dice, cards, or tables, or any other unlawful games, but also prohibits them from engaging in any base or servile labour. and a clergyman who holds any cathedral preferment, benefice, curacy, or lectureship, or is licensed or is otherwise allowed to perform the duties of any ecclesiastical office, is subject to certain specific legal restrictions as to engaging in business or trade. (_a_) he may not acquire for occupation, use, or cultivation more than eighty acres of land without the written permission of the bishop, which must be restricted to a specified number of years not exceeding seven. (_b_) he may not engage in any trade or dealing for profit except where it is carried on by more than six partners, or by a company, or where the concern, or a share in it, has devolved on him under a will or settlement, or by inheritance or marriage or bankruptcy; and in none of the excepted cases may he act as a director or managing partner, or carry on the concern in person. these restrictions, however, do not extend to keeping a school or seminary, or being employed as a schoolmaster or tutor, or being concerned in education for profit, or buying or selling or otherwise acting in relation to such school, seminary, or employment. nor of course do they prevent an incumbent from farming, if he pleases, his own glebe lands. nor do they interfere with the sale, even at an enhanced price, of goods which a clergyman actually buys for the use of his household, but afterwards does not want to keep, nor with the sale of books to or through a bookseller or publisher. he may also be a manager, director, partner, or shareholder in any benefit society, or fire or life assurance society, and may sell minerals from mines on his own lands, and also (provided he do not do so in person at a market or other public sale) may buy and resell for profit cattle, corn, and other things required for the occupation, cultivation, and improvement of glebe or other lands lawfully held by him. the penalties for unlawfully trading are, for the first offence, suspension for not exceeding one year, for the second offence suspension for a longer period, and for the third offence deprivation _ab officio et beneficio_.[ ] . both clergymen and other ministers of religion are specially protected in the performance of religious rites, including rites of burial, in a church or other place of worship, or a churchyard or burial-place. it is a misdemeanour punishable by imprisonment with or without hard labour, to offer violence to them or arrest them upon any civil process while engaged in or going to or returning from the performance of these rites, or to obstruct or endeavour to obstruct them in the performance.[ ] the maintenance of order in a church or other place of worship, whether divine service is being performed or not, and in a churchyard or burial-place, is also provided for by the act against brawling passed in .[ ] . a clergyman cannot divest himself of his orders;[ ] and canon prohibited him from forsaking his calling or conducting himself as a layman under pain of excommunication. but now, by statute, after resigning all preferments held by him, he can surrender all clerical rights and powers, and free himself from all clerical disabilities, if he executes a deed of relinquishment in the prescribed form, and causes it to be enrolled in the central office of the supreme court of judicature, and delivers an office copy of the enrolment to the bishop of the diocese in which he last held preferment, or (if he has never held preferment) in which he resides, and gives notice of having done so to the archbishop of the province in which the diocese is situate. and a clergyman who takes this course is relieved from all censures or other proceedings for so doing, but is rendered incapable of afterwards officiating or acting as a minister of the church of england or taking or holding any preferment therein.[ ] footnotes [ ] bl. comm. , - , and n. ( ) by j. t. coleridge (afterwards judge) in th ed. ( ); ( ) hen. , c. , ss. - ; c. (preamble); ( ) hen. , c. ; ( ) hen. , c. . [ ] _i.e._ "the book of common prayer and administration of the sacraments and other rites and ceremonies of the church, according to the use of the church of england, together with the psalter or psalms of david, pointed as they are to be sung or said in churches, and the form or manner of making, ordaining, and consecrating of bishops, priests, and deacons," which is annexed to the act of uniformity of ( cha. , c. ). similarly the thirty-nine articles of religion are enjoined on the clergy by ( ) eliz. c. , the clerical subscription act, ( & vict. c. ), and the canon made in and ratified by the crown in . [ ] middleton _v._ crofts ( ) str. ; atk. ; bp. of exeter _v._ marshall ( ) l. r. h. l. . [ ] gibs. cod. . the act of ( cha. , st. , c. ), which restored the ecclesiastical jurisdiction of archbishops, bishops, and other spiritual judges and officers, contained a proviso that nothing therein contained should extend to confirm "the canons made in the year , nor any of them, nor any other ecclesiastical laws or canons not formerly confirmed, allowed, or enacted by parliament or by the established laws of the land as they stood in the year of our lord ." [ ] so called "because by his person the church, which is an invisible body, is represented: and he is in himself a body corporate in order to protect and defend the rights of the church (which he personates) by a perpetual succession." bl. comm. . the term _parson_ is often popularly, but incorrectly, applied to vicars and other clergymen. [ ] the owner of this right was called the _patronus_ or _advocatus_ on account of his duty to patronise, advocate, or defend the privileges of the church and benefice. hence his right to nominate the rector was styled _advocatio_ or advowson. [ ] ( ) geo. , c. , ss. - . [ ] ( ) geo. , c. , ss. , . [ ] ( ) geo. , c. , s. ; ( ) & will. , c. , s. ; ( ) & vict. c. , ss. , ; ( ) & vict. c. , ss. , . the churches provided under the church building acts and new parishes acts may be classified as follows: i. church of a distinct and separate parish formed under the church building act, ( geo. , c. , s. ); ii. church of a district parish formed under geo. , c. , s. ; iii. church or chapel of a consolidated chapelry formed under the church building act, ( geo. , c. , s. ); iv. church or chapel of a district chapelry formed under geo. , c. , s. ; v. church or chapel built or appropriated under the church building act, ( & will. , c. , s. ), with or without a particular district formed under s. of that act; vi. chapel of ease constituted the church of a separate spiritual parish under & will. , c. , s. ; vii. church of a peel parish formed under the new parishes act, ( & vict. c. , s. ); viii. church of a new parish formed under the new parishes act, ( & vict. c. , ss. , ); ix. church of a district parish, consolidated district chapelry, or particular district, which under & vict. c. , s. , has become a separate ecclesiastical parish in consequence of the ecclesiastical commissioners having authorised in such church the publication of banns and the solemnisation of marriages, churchings, and baptisms; x. church, without a district, built on a site the conveyance of which has been accepted by the ecclesiastical commissioners ( & vict. c. , s. ). [ ] & vict. c. , s. . under the parish of manchester division act, ( & vict. c. , s. ), the benefice of every new parish within the area of the ancient parish of manchester is a rectory. [ ] see the prayer for the clergy and people in morning and evening prayer and the prayer for the church militant. [ ] ( ) geo. , sess. , c. , s. ; ( ) geo. , c. , s. . [ ] & vict. c. , s. . see ch. ii. § (i.) below. [ ] ( ) & vict. c. . [ ] ( ) & vict. c. . see ( ) & vict. c. , s. ; ch. ii. § (i.) below. [ ] bp. of winchester _v._ rugg ( ) l. r. p. c. , . [ ] as to this, see ch. ii. § (iv.) and note. [ ] ayl. par. . the dean of the cathedral has an independent position and dignity in respect of the cathedral church, which is outside the general diocesan and archidiaconal jurisdiction; _ib._ [ ] reg. _v._ sowter ( ) k. b. ; rev., . [ ] phill. eccl. law, pt. i. ch. v. pp. - ; pt. iv. ch. xi. § , pp. - ; burn, - . according to a table of fees settled under the authority of the act & vict. c. , and published in the _london gazette_ of march , , the fees to be paid by each parish at either an episcopal or an archidiaconal visitation are s.; viz. s. to the chancellor or archdeacon (as the case may be), s. d. to the registrar, and s. d. to the apparitor. [ ] ayl. par. ; gibs. cod. - ; burn, - ; dansey's _horæ decanicæ rurales_ ( nd ed., ), pts. iv, v. [ ] & vict. c. . [ ] & vict. c. . [ ] & vict. c. . [ ] cripps, , ; ( ) & vict. c. , ss. ( ) (_b_), ( ); ( ) & vict. c. , s. ( ) (_a_); ( ) & vict. c. , s. ( ), ( ). [ ] ( ) geo. (u. k.), c. . [ ] ( ) & vict. c. , ss. , ; ( ) & vict. c. . [ ] ( ) & vict. c. (offences against the person), s. . [ ] & vict. c. . [ ] barnes _v._ shore ( ) q. b. ; rob. eccl. . [ ] & vict. c. (the clerical disabilities act, ). chapter ii beneficed clergy . in the case of all benefices, admission is granted by the bishop, as primarily charged with the cure of souls throughout his diocese; but, unless there is good legal reason to the contrary, he is bound to admit the clerk who is presented by the patron of the benefice, if the presentation is made within six calendar months after the benefice became vacant. if that period passes without a presentation being made, the right of appointment lapses to the bishop. if he does not appoint within a further like period, it goes to the archbishop of the province, and if he fails to appoint within another period of six calendar months, it devolves finally on the crown.[ ] the period for lapse dates from the day of the vacation of the benefice if it occurred by death or acceptance of another living.[ ] but if the vacancy was created by resignation or deprivation or avoidance of the benefice for non-residence, or if a clerk who is presented is rejected for want of ability or moral character, the period will only begin to run from the time when notice of the fact is given by the bishop to the patron,[ ] except in the case of an ecclesiastical patron who (unless the case comes under the benefices act, , ss. , ) is not entitled to such notice.[ ] moreover, in reckoning the period for lapse, no account is to be taken, in the case of the first and second presentations by a patron in respect of the same vacancy, of the time between a presentation and the bishop's refusal to admit the presentee, or of the period between that refusal and a decision of a court upon it, nor, in the case of a collation by the bishop, of the time between the service of the prescribed notice on the churchwardens and the expiration of a month from that service.[ ] . the original connection of advowsons or rights of presentation with manors or estates[ ] led to their passing by devolution or devise on death, or by gift or sale during life, to the heir of the patron, or to a devisee, donee, or purchaser of the manor or estate; and it soon became recognised in law that they could be alienated by themselves like any other property, apart from the manors to which they were originally appendant. moreover, until the law allowed a patron to grant or sell the right of next presentation, or the right of presentation during his lifetime, or any other limited interest in the patronage, reserving the fee-simple of the advowson to himself. by an act of ,[ ] a clergyman was prohibited from purchasing a next presentation and then presenting himself; but this has been held not to prevent him from presenting himself after purchasing an estate in fee, or even an estate for life in the advowson.[ ] and if the benefice is vacant at the time of the transfer, the transfer does not carry with it the right to present a clerk to fill up the existing vacancy.[ ] this, however, was, until , frequently got over by an agreement that the transferor should present such clerk as the transferee might nominate. but the benefices act, ,[ ] introduced several salutary restrictions on the transfer of advowsons. under sect. of that act:-- (_a_) a transfer of an advowson (otherwise than on marriage, death, or bankruptcy, or on the appointment of a new trustee) is invalid unless it (i.) transfers the whole interest of the transferor in the advowson (except that he may reserve to himself a life interest in making a family settlement, and the equity of redemption in making a mortgage); (ii.) is made more than twelve months after the last filling up of the benefice; and (iii.) is registered in the diocesan registry within one month after its date, or such extended period as the bishop may under special circumstances permit. (_b_) the advowson must not be put up to auction unless sold with a manor or not less than acres of land belonging to the same owner in the same or an adjoining parish. (_c_) subsection ( ) of the same section also makes invalid any agreement to exercise patronage in favour of or on the nomination of a particular person, and also, in connection with the transfer of an advowson, any agreement (i.) to retransfer the advowson; (ii.) to postpone payment of any part of the purchase money, or to pay interest until a vacancy in the living, or for more than three months; (iv.) to make any payment in respect of the date at which the vacancy may occur; or (v.) that the living shall be resigned in favour of any person. if the patron of a benefice is a roman catholic, the university of oxford or of cambridge has the right to present.[ ] a jew who owns an advowson may present; but if a jew holds an office under the crown to which a right of presentation is attached, the right passes to the archbishop of canterbury.[ ] . every clerk in priest's orders, who has not relinquished the rights and privileges attaching to those orders under the clerical disabilities act, ,[ ] or become incapable of holding preferment under the clergy discipline act, ,[ ] is qualified to be appointed to a benefice. but, unless he has been so ordained by a bishop of the church of england or of the church of ireland, or by a commissary of an english bishop under & vict. c. , he is subject to the provisions of the colonial clergy act, ,[ ] or, if ordained in scotland, of the episcopal church (scotland) act, ,[ ] as to the previous consent or licence of the archbishop of the province or bishop of the diocese; and a clerk ordained priest as an alien or for service in the colonies under the ordination of aliens act, , or the ordinations for colonies act, , is subject to the same provisions.[ ] the bishop may, however, independently of the benefices act, , refuse to admit him on the ground of insufficient learning,[ ] or of vicious conduct, heresy, or offences against ecclesiastical law in matters of ritual--anything, in short, which, if it occurred after admission, might be a ground for depriving him of the benefice.[ ] and, under sect. of that act, the bishop may do so, (_a_) if at the date of the vacancy not more than a year has elapsed since a transfer within the purview of sect. [ ] of the right of patronage of the benefice, unless the transfer is proved not to have been effected in view of the probability of a vacancy within the year; or (_b_) if not more than three years have elapsed since the presentee was ordained deacon; or (_c_) if the presentee is unfit owing to physical or mental infirmity, serious pecuniary embarrassment, grave misconduct, or neglect of duty in an ecclesiastical office, evil life, or scandal caused by his moral conduct since ordination; or (_d_) if he has, with reference to the presentation, been knowingly party or privy to a transaction or agreement invalid under the act.[ ] the th canon lays down that a bishop shall not institute to a benefice a clergyman who has been ordained by another bishop, without production of his letters of orders and a sufficient testimony of his former good life and behaviour if the bishop requires it,[ ] and his appearing on due examination to be worthy of his ministry. what this examination covers is not clearly definable; but it has not such a wide scope as the examination contemplated in canon , which does not apply to presentees to livings.[ ] under the th canon a bishop is allowed twenty-eight days for inquiry as to the fitness of a presentee; but this is merely directory, and he is not precluded from continuing the inquiry after their expiration.[ ] . if a bishop refuses to admit a presentee on a ground specified in sect. of the act of , or on account of any other unfitness or disqualification sufficient in law, not having reference to doctrine or ritual, he is to signify in writing his refusal, and the ground for it, to the patron and the presentee; and either of them may within one month thereafter require that the matter be heard by a court consisting of the archbishop of the province (or if it was the archbishop who refused to admit, the archbishop of the other province) and a judge of the supreme court, nominated by the lord chancellor. the judge is to decide all questions of law and fact, and if the judge finds that there is no fact sufficient in law to constitute unfitness or disqualification, the archbishop is to direct the admission of the presentee. but if the judge finds that such fact does exist, the archbishop is to decide whether the presentee is actually in consequence unfit to serve the benefice, and adjudge whether admission ought under the circumstances to be refused. in either case his judgment is to be final.[ ] when the bishop has refused to admit a presentee, the patron cannot present him again in respect of the same vacancy.[ ] if the bishop refuses to admit the presentee of a clerical patron and the refusal is upheld by the court, the patron has the same right of further presentation as if he were a lay patron.[ ] if a bishop refuses to admit a presentee on the ground of doctrine or ritual, the old alternative remedies remain, either (_a_) of a suit of _duplex querela_ by the presentee in the ecclesiastical court of the province, or (_b_) of an action of _quare impedit_ by the patron in the high court of justice.[ ] . before the bishop admits a clerk to a vacant benefice, he must send to the churchwardens in a registered letter a formal notice of his intention so to do, with a statement of the ecclesiastical preferments which the clerk has held, and a direction that the notice is to be fixed for one month on the principal door or notice-board of the church; after which it is to be returned to the bishop with a certificate, signed by the churchwardens, that the direction has been complied with.[ ] the object of this proceeding is to give to the parishioners the opportunity of communicating to the bishop the existence of any fact known to them which would constitute a valid and legal ground for the bishop to refuse the presentee. . the bishop admits a presentee by formal institution in the case of a rectory or vicarage (the presentee kneeling before him), and by licence in the case of a perpetual curacy. in the case of admission to the benefices of new ecclesiastical parishes, which though by law perpetual curacies, are titular vicarages,[ ] the practice varies. admission by licence is the correct course; but by the desire of the presentee himself institution is sometimes granted. where the bishop is himself the patron, he cannot present, and therefore admits by collation, which corresponds to the two processes of presentation and institution.[ ] before institution, collation, or admission by licence, the clerk makes two declarations and takes two oaths.[ ] (i.) a declaration of assent, namely-- i assent to the thirty-nine articles of religion, and to the book of common prayer, and of the ordering of bishops, priests, and deacons. i believe the doctrine of the church of england as therein set forth, to be agreeable to the word of god; and in public prayer and administration of the sacraments i will use the form in the said book prescribed and none other, except so far as shall be ordered by lawful authority.[ ] (ii.) a declaration against simony, namely-- i, a. b., hereby solemnly and sincerely declare in reference to the presentation made of me to the rectory (or vicarage, &c.) of ---- as follows: . i have not received the presentation of the said rectory (or vicarage, &c.) in consideration of any sum of money, reward, gift, profit, or benefit directly or indirectly given or promised by me, or by any person to my knowledge or with my consent, to any person whatsoever; and i will not at any time hereafter perform or satisfy any payment, contract, or promise made in respect of that presentation by any person without my knowledge or consent. . i have not entered, nor, to the best of my knowledge and belief, has any person entered, into any bond, covenant, or other assurance or engagement, otherwise than as allowed by sections one and two of the clergy resignation bonds act, ,[ ] that i should at any time resign the said rectory (or vicarage, &c.). . i have not by myself, nor, to my knowledge, has any person on my behalf, for any sum of money, reward, gift, profit, or advantage, or for or by means of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly procured the now existing avoidance of the said rectory (or vicarage, &c.) . i have not, with respect to the said presentation, been party or privy to any agreement which is invalid under section one, subsection three, of the benefices act, .[ ] (iii.) the oath of allegiance, namely-- i, a. b., do swear that i will be faithful and bear true allegiance to his majesty king edward the seventh, his heirs and successors according to law. so help me god he oath of canonical obedience, namely-- i, a. b., do swear that i will perform true and canonical obedience to the bishop of c. and his successors in all things lawful and honest. so help me god.[ ] moreover, on the first lord's day on which he officiates in church in his benefice, or such other lord's day as the ordinary allows, he is to read publicly the thirty-nine articles, and make the declaration of assent, adding after "articles of religion," the words, "which i have now read before you."[ ] . a clerk who has been admitted to a benefice by either institution, collation, or licence is thereby invested with the cure of souls of the parish, and with the right to the temporalities; and, in the case of admission by licence, nothing more is requisite to place him in full enjoyment of the benefice. but, in the case of institution or collation, the further process of induction is necessary to invest him with the actual possession of its temporalities. the bishop issues his mandate for the purpose to the archdeacon or some other person, who, in obedience thereto, goes to the church, and, placing the clerk's hand upon the key or ring of the door, inducts him into the real, actual, and corporal possession of the church, with all its rights, profits, and appurtenances.[ ] . the following fees in connection with the admission to benefices were settled in june , under the acts & vict. c. , and & vict. c. :[ ] key for column z below. a: collation to a benefice b: institution to a benefice c: licence to a perpetual curacy d: induction to a benefice (whether of one parish, or of two or more united parishes) -+-----------+----------+----------+----------------------------------+ | |registrar | | | |vicar |or other |secretary |during existing vested interests. | |general |officer |of arch- +----------+-----------+-----------+ z|or |by usage |bishop | | | record | |chancellor.|performing|or bishop.|apparitor | sealer. | keeper. | | |the duty. | | | | | -+-----------+----------+----------+----------+-----------+-----------| |£ _s. d._ |£ _s. d._|£ _s. d._|£ _s. d._|£ _s. d._ |£ _s. d._ | a| | | | | | | b| | | | | | | | | | | | | | c| | | | | | | +-----------+----------+ | | | | |arch- |arch- | | | | | |deacon's |deacon's | | | | | |official. |registrar.| | | | | +-----------+----------+ | | | | |£ _s. d._ |£ _s. d._| | | | | d| | | | | | | -+-----------+----------+----------+----------+-----------+-----------| . admission to a benefice confers the right and imposes the duty of the cure (lat. _cura_) or care of souls within the parish attached to the benefice. the nature of this duty can be gathered from the form of ordering of priests, the rubrics and provisions of the book of common prayer, and the canons of . every clergyman, at the time of his ordination as priest, solemnly promises (_a_) so to minister the doctrine and sacraments and the discipline of christ as the lord has commanded, and as the church and realm of england have received the same, and to teach the people committed to his cure and charge with all diligence to keep and observe the same; (_b_) to be ready to banish and drive away all erroneous and strange doctrines contrary to god's word, and to use both public and private exhortations, as well to the sick as to the whole, within his cure, as need requires and occasion is given; (_c_) to be diligent in prayers and in reading of the holy scriptures, and in such studies as help to the knowledge of the same, laying aside the study of the world and the flesh; (_d_) to frame and fashion himself and his family according to the doctrine of christ, and to make both himself and them wholesome examples and patterns to the flock of christ; (_e_) to maintain and set forward quietness, peace, and love among all christian people, and especially among those committed to his charge; and (_f_) reverently to obey his ordinary and other chief ministers, following with a glad mind and will their godly admonitions, and submitting himself to their godly judgments. while the cure of souls thus embraces the general care of the spiritual and moral welfare of the people, it includes the following particulars, which will be separately considered: (i.) residence; (ii.) performance of divine service, including the administration of the sacraments, preaching and catechising; (iii.) solemnisation of marriage; (iv.) burial of the dead; and (v.) private ministrations, including the visitation of the sick. . speaking generally, and with the exceptions and under the restrictions to be presently mentioned, the incumbent and clergymen permitted by him have the sole right of ministering within his parish; and a clergyman who intrudes and performs any clerical function in it without his permission, commits an ecclesiastical offence.[ ] but the bishop, as the chief pastor, has the right to officiate in any church and parish within his diocese whenever he pleases. and an incumbent cannot authorise another clergyman to officiate in his church or parish without the licence of the bishop; but this rule has been held not applicable in its absolute strictness to merely occasional and isolated acts of ministration.[ ] the few cases in which two or more incumbents have had the cure of souls within the same parish, have been dealt with by recent legislation.[ ] the th and th canons prohibited the practice of persons leaving their own parish church and communicating or causing their children to be baptized elsewhere. but this prohibition is not now in force; and by a general understanding and comity, especially in towns subdivided into several ecclesiastical parishes, not only do church people frequent at will the particular church which they prefer, but the incumbent of that church pays spiritual visits in sickness and at other times to regular members of his congregation who reside in another parish. . the ministrations of the incumbent himself are restricted by canon , under which, except where a person is prevented from going to church by infirmity or sickness, no minister may preach or administer the holy communion in any private house in which there is not a chapel dedicated and allowed by the ecclesiastical law of the realm, nor, where there is such a chapel, in any other place but the chapel, and even there only seldom on sundays and holy-days in order that the lord or master of the house and his family may at other times resort to their own parish church and there receive the holy communion at least once every year. an incumbent can perform divine service in any consecrated building in his parish without a licence from the bishop; but, strictly speaking, he requires the bishop's licence to authorise him to do so in any unconsecrated building, whether within or outside his parish, or anywhere in another diocese; and a bishop can inhibit an incumbent of his diocese from officiating within the diocese elsewhere than in the consecrated buildings within his own parish. if an incumbent transgresses in any of these respects he is liable to be sued for an ecclesiastical offence.[ ] moreover, strangely enough, the acts which legalised the worship of dissenters not only withdrew them from the care of the incumbent of the parish but also restricted his action among church people. for these acts prohibited any meeting for protestant religious worship of more than twenty persons, besides the family and servants of the house where it was held, except at a place duly certified for the purpose.[ ] but in it was enacted that these prohibitions should not apply to any assembly for religious worship either (_a_) conducted by the incumbent or curate in charge of the parish or any person authorised by him, or (_b_) meeting in private premises, or (_c_) meeting occasionally in a building not usually appropriated to religious worship.[ ] . there are also special cases in which the right of an incumbent to officiate and exercise the cure of souls is actually superseded in favour of a chaplain appointed without his consent. where a nobleman has a chapel within or attached to his residence he has the right to appoint a chaplain to serve it.[ ] the chapels of public and endowed schools under the acts of and are free from the jurisdiction and control of the incumbent of the parish in which they are situate.[ ] moreover, a bishop may license a clergyman to administer the lord's supper and perform services other than the solemnisation of marriage, and, subject to the direction of the ordinary, to dispose of the offertory and collections, in the chapel of any college, school, hospital, asylum, or public or charitable institution within his diocese; and where this is done, the institution and chapel are withdrawn from the cure of souls and control of the incumbent of the parish.[ ] during the eighteenth and first part of the nineteenth century, before the church building and new parishes acts had afforded facilities for creating new parishes, unconsecrated proprietary chapels were built in various places, with the consent of the bishop of the diocese and incumbent of the parish, to meet the wants of overgrown town populations. these chapels can only be served by ministers acting under the licence of the bishop, (which he can at any time revoke),[ ] and with the consent of the incumbent, which, though he cannot himself revoke it, is not binding on his successors.[ ] unless the incumbent waives the right to the alms collected in the chapel, they must be accounted for to him. the chapel is private property, and no one can claim to attend it as of right.[ ] . the right to the cure of souls in a parish naturally carries with it the right of the incumbent to a voice in the erection of a new church in the parish and the severance of any portion of the parish from his benefice and its formation into a new ecclesiastical district or parish. the various modes in which these objects may be effected are mentioned in the note to ch. i. § above. the enactments on the subject provide opportunities for the incumbents of the existing parishes, which would be affected by any contemplated action in the matter, to lay their views and objections, if any, before the bishop and the ecclesiastical commissioners; but their views need not necessarily be accepted and their objections may be overruled. . an incumbent cannot hold more than one benefice at the same time, except that upon a certificate of the bishop as to the facts, and with a licence or dispensation from the archbishop of the province (from the refusal of which there is an appeal to the king in council), he may hold a second, the church of which is within four miles of that of the first by the nearest road, if the annual value of one of the benefices does not exceed the net sum of £ , after deducting rates, taxes, tenths, dues, and permanent charges, but not the stipend of a curate. but where the population of one of the parishes is over , the joint holding will only be lawful if that of the other is under .[ ] . the bishop is invested with certain specific powers in case of the inadequate performance of the ecclesiastical duties of a benefice, including not only the regular and due performance of divine service on sundays and holy days at the usual hours, but also all such duties as the incumbent is bound by law to perform, or the performance of which was solemnly promised by him at his ordination,[ ] and the performance of which has been required of him in writing by the bishop; and including also, in the four welsh dioceses and the county of monmouth, such ministrations in welsh as the bishop directs to be performed by him, not being more than one service in welsh on every sunday in any church, and without interfering with due provision for the english-speaking portion of the people. if the bishop has reason to believe that these duties are inadequately performed by an incumbent, he may issue a commission of inquiry to four commissioners, viz. the archdeacon or rural dean of the archdeaconry or deanery in which the benefice is situate; the canon residentiary, prebendary, or honorary canon of the cathedral church of the diocese elected triennially for the purpose by the dean and chapter; the beneficed clergyman elected triennially for the purpose by and out of the beneficed clergy of the archdeaconry; and a lay justice of the peace of the county nominated on the requisition of the bishop by the chairman of quarter sessions or lord-lieutenant of the county; and the incumbent may, if he desires, add a beneficed clergyman of the diocese or a justice of the peace as a fifth commissioner. if the commissioners or a majority of them report that the duties are inadequately performed, the procedure may be different, according as they do or do not add that this is due to the negligence of the incumbent. if they do not report negligence, the bishop has only power to require the incumbent to nominate one or more curates to perform or assist in performing the duties, and to make the appointment himself if the incumbent fails to do so, subject to an appeal to the archbishop.[ ] but if they report negligence, the bishop may make the appointment without previously requiring the incumbent to nominate, and may inhibit the incumbent from performing all or any of the duties, subject to an appeal by him to the tribunal constituted by the benefices act, .[ ] evidence given before the commissioners is privileged.[ ] . an incumbent is ordinarily bound to reside in his benefice, or in one of them if he holds two, or in the parsonage or vicarage house (if any);[ ] and, even though he keeps a curate, it is his duty, unless excused for some valid reason by the bishop, to read the prayers and administer the sacraments at least once a month.[ ] if he is absent in any year more than days altogether, he is liable to forfeit, by way of penalty, one-third; if more than days, one-half; if more than days, two-thirds; and, if for the whole time, three-fourths of the year's income of the benefice; unless he has the bishop's licence, or if the bishop has refused it, the archbishop's licence, for non-residence.[ ] this licence may be granted on account of (i.) mental or physical infirmity; (ii.) the dangerous illness of the incumbent's wife or child residing with him (but in that case for six months only, renewable from time to time by leave of the archbishop on the recommendation of the bishop); (iii.) the absence or unfitness of a house of residence; (iv.) the occupation by the incumbent of a house of his own in the parish, provided he keeps the house of residence in good repair.[ ] exceptions are made in favour of incumbents holding certain official positions;[ ] and the bishop, with the sanction of the archbishop, may grant a licence to reside outside the benefice, where he thinks it expedient so to do. a licence for non-residence is only valid until the st of december in the year next after that in which it was granted; and it may at any time be revoked, subject, in the case of a bishop's licence, to an appeal to the archbishop.[ ] . in lieu of or after proceeding for pecuniary penalties, the bishop may issue a monition and order requiring a non-resident incumbent to reside on and perform the duties of his benefice, and in case of non-compliance with the order may, subject to an appeal to the archbishop, sequester the revenues of the benefice until residence is resumed, and direct their application in payment of the penalties, the expenses of the monition and sequestration, the repair and upkeep of the chancel, house of residence, and other property of the benefice, the satisfaction of any creditor's sequestration, and the augmentation or improvement of the benefice or its property, allowing, if he pleases, a certain proportion to the incumbent.[ ] if a benefice continues for a year under sequestration for non-residence or an incumbent incurs two sequestrations for non-residence within two years, and is not relieved in respect of either on appeal, it becomes void as if the incumbent were dead.[ ] . the law also makes provision for the performance of the ecclesiastical duties of a benefice by curates in the case of an incumbent who does not reside thereon for nine months in each year and does not with the consent of the bishop perform the ecclesiastical duties while residing on another benefice of which he is the incumbent, or while holding a licence not to reside on the benefice or not to reside in the parsonage house thereof.[ ] . incumbents who are non-resident with the bishop's licence cannot without the bishop's permission resume the duties of their benefice before the expiration of their licence; nor can they, if non-resident for more than twelve months, interfere during that period with the curate entrusted with those duties by the bishop.[ ] . in reckoning the periods prescribed by law as to non-residence, a month is a calendar month, except where it is to be made up of an aggregate of lesser periods, in which case thirty days are to be deemed a month. a year is to be reckoned as commencing on january , and ending on the following december , both inclusive.[ ] . an incumbent vacates his benefice by (i.) death, (ii.) resignation, (iii.) admission to other preferment which he cannot by law hold therewith, or (iv.) deprivation. . resignation must be tendered to the bishop, and unless made in view of an exchange must be unconditional. it should be made either in person or by a deed attested by two witnesses. the presence and attestation of a notary in addition are usual but are not essential. the resignation may be made at the request of the bishop to avoid scandal and legal proceedings, and he may agree to postpone the declaration of the vacancy to a fixed date in the future in order to enable the incumbent to receive the tithe rentcharge accruing before that date. its acceptance by the bishop need not be signified in any particular form or even in writing, and is implied if the resignation was tendered at the bishop's request. it cannot be revoked after its acceptance by the bishop. whether it can, under any circumstances, be revoked previously to acceptance by him is not clear.[ ] if, however, it is made for the purpose of an exchange, it does not take effect unless the exchange is carried out; so that if either of the exchanging incumbents dies before being inducted to his new living, both resignations are void, as well as the institution and induction of the other to the deceased's old living, if that has taken place.[ ] the benefices act, , precludes an incumbent, when he is presented, from entering into any engagement for resigning the benefice except under the clergy resignation bonds act, , sects. , , which allow such an engagement with a view to the appointment to the benefice, when resigned, of a single specified individual whomsoever, or of one of two specified individuals, each of whom is by blood or marriage an uncle, son, grandson, brother, nephew, or great-nephew of the person or one of the persons entitled in equity to the patronage of the benefice, or of a married woman whose husband is in her right the patron or one of the patrons.[ ] the corrupt taking of any pension money or other benefit for the resignation or exchange of a benefice is prohibited by eliz. c. , s. . but under the incumbents resignation acts, and , a pension may be awarded out of the revenue of the benefice to an incumbent who, after a continuous holding of the benefice for not less than seven years, retires therefrom on the ground of incapacity to perform the duties by reason of permanent mental or bodily infirmity. the bishop, if he thinks fit, on the representation of the incumbent, appoints a commission to inquire and report as to the expediency of the resignation, and, if the majority of the commissioners consider it expedient, as to the amount of the pension; which must not exceed one-third of the net annual value of the benefice, exclusive of the house of residence. if the patron refuses consent to the resignation, the question of its acceptance is to be decided by the archbishop. if the incumbent is a lunatic, found such by inquisition or certificate of a master of lunacy, the resignation may be carried out in his name by the committee of his estate; but no provision exists for effecting the resignation of an incumbent of unsound mind, not so found. if any part of the income of the benefice is derived from tithe rentcharge or glebe lands, the pension is to vary like the tithe rentcharge with the corn averages; but it will not otherwise be affected by a change in the value of the benefice.[ ] it will cease if the pensioner relinquishes the rights and privileges of holy orders under the clerical disabilities act, , or is admitted to another benefice; and if he undertakes clerical duties for a remuneration elsewhere than in the benefice which he resigned, the bishop may decide that his pension shall cease or be diminished altogether or for a limited time; and the archbishop, on appeal, may confirm, annul, or vary the bishop's decision.[ ] a sum due from the retiring incumbent to his successor for dilapidations may be deducted out of the pension, so that the deductions do not without the bishop's consent exceed in any year one-half of the pension; but no other debt can be set off against it.[ ] . except in the case already mentioned of an incompleted exchange,[ ] an incumbent _ipso facto_ vacates his benefice on admission to another preferment which cannot at law be held with it.[ ] . deprivation is either (_a_) by operation of law or (_b_) by sentence. (_a_) it takes place _ipso facto_ (i.) if the presentation or admission to the benefice has been simoniacal, or if a person who has been corruptly ordained is admitted to the benefice within seven years afterwards;[ ] (ii.) if the incumbent is convicted a third time of a breach of the provisions of the acts of uniformity as to using the book of common prayer and no other, and as to not preaching in derogation thereof;[ ] (iii.) if the incumbent wilfully omits to read publicly the thirty-nine articles and his declaration of assent after his admission to the benefice;[ ] (iv.) if the benefice continues a whole year under sequestration for disobedience to the bishop's monition or order requiring the incumbent to reside on the benefice, or if he incurs two such sequestrations within two years, and is not relieved as to either of them on appeal;[ ] (v.) if an inhibition for enforcing obedience by the incumbent to a monition or order under the public worship regulation act, , remains in force for more than three years, or a second inhibition for the same purpose is issued within three years from the relaxation of a former inhibition, and the bishop does not intervene;[ ] or (vi.) in the case of an incumbent presented or collated since , if within a year after his admission his benefice is sequestrated on his bankruptcy or in aid of an execution against his property, or if such a sequestration, issued after that period, continues for a year, or if he incurs two such sequestrations within two years, unless the bishop otherwise directs.[ ] moreover (vii.) the bishop is to declare a benefice vacant if the incumbent is convicted of treason or felony or, on indictment, of a misdemeanour, and is sentenced to imprisonment with hard labour or any greater punishment, or he has a bastardy order made against him, or in a divorce or matrimonial cause he is either found to have committed adultery or an order for judicial separation is made against him; but if, after being so convicted, he receives a free pardon from the crown before the benefice is filled up, he is to be reinstated in it.[ ] (_b_) sentence of deprivation is pronounced in suitable cases in proceedings against an incumbent for a serious offence against morality under the clergy discipline act, , or for an offence in respect of doctrine or ritual or other matter of ecclesiastical cognisance under the church discipline act, .[ ] footnotes [ ] wats. ch. xii. pp. - ; gibs. cod. - . [ ] wats. ch. ii. pp. , ; gibs. cod. . [ ] wats, ch ii. p. ; gibs. cod. ; ( ) eliz. c. , s. ; ( ) & vict. c. , s. . [ ] burn, . [ ] benefices act, ( & vict. c. ), s. . comp. §§ , below. [ ] see ch. i. § . [ ] ann. c. ( ann. st. , c. ), s. . [ ] walsh _v._ bp. of lincoln ( ) l. r. c. p. . [ ] alston _v._ atlay ( ) a. & e. . [ ] & vict. c. . [ ] ( ) ja. , c. , ss. - ; ( ) will. & mar. sess. , c. ; ( ) & vict. c. , s. . [ ] ( ) & vict. c. , s. . [ ] & vict. c. . [ ] & vict. c. , ss. , . [ ] & vict. c. . see ch. i. § . [ ] & vict. c. . see ch. i. § . [ ] geo. , sess. , c. ; geo. , c. ; & vict. c. , s. . [ ] willis _v._ bp. of oxford ( ) p. d. . this includes, in the four welsh dioceses, inability to preach, administer the sacraments, perform other pastoral duties, and converse in welsh, subject to an appeal to the archbishop; ( ) & vict. c. , s. ; marquis of abergavenny _v._ bp. of llandaff ( ) q. b. d. . [ ] ayl. par. - ; heywood _v._ bp. of manchester ( ) q. b. d. . [ ] see § above. [ ] the "sufficient testimony" consists, by long-established practice, of a testimonial by three beneficed clergymen, countersigned by the bishops of their dioceses if they are not beneficed in the diocese of the bishop to whom the testimonial is given, that the presentee has been personally known to them for three years last past; that they have had opportunities of observing his conduct, and during the whole of that time they verily believe that he has lived piously, soberly, and honestly, and that they have not heard anything to the contrary thereof, nor that he has at any time held, written, or taught anything contrary to the doctrine or discipline of the church, and that they believe him to be, as to his moral conduct, a person worthy to be admitted to the benefice. [ ] bp. of exeter _v._ marshall ( ) l. r. h. l. . [ ] gorham _v._ bp. of exeter ( ) rob. eccl. ; jur. . [ ] ( ) & vict. c. , s. . [ ] _ib._ s. ( ). [ ] _ib._ s. ( ). [ ] ayl. par. - . [ ] benefices act, ( & vict. c. ), s. ( ); benefices rules, , ru. , , sch. form ( ). [ ] ( ) & vict. c. . [ ] gibs. cod. . [ ] & vict. c. (clerical subscription act, ), ss. , , ; & vict. c. (promissory oaths act, ), ss. , , , ; & vict. c. (benefices act, ), s. ( ) sch. [ ] this may be the authority of the king in council, under which the names of the sovereign and members of the royal family are changed in the prayers for them (gibs. cod. ), and other forms are from time to time prescribed; or that of the archbishop or bishop, so far as they have power in the matter. see below, ch. v. § . [ ] see below, § . [ ] see above, § (_c_). [ ] clarke proxis, tit. xci.; gibs. cod. . this oath does not mean that the clerk will obey all the commands of the bishop against which there is no law, but that he will obey all such commands as the bishop by law is authorised to impose; long _v._ bp. of capetown ( ) moo. p. c. n. s. , at p. . [ ] ( ) & vict. c. , s. . [ ] johns, vol. i. p. ; wats. ch. xv. p. , sq. [ ] _london gazette_, july , . [ ] duke of portland _v._ bingham ( ) hag. cons. , ; carr _v._ marsh ( ) phill. , ; farnworth _v._ bp. of chester ( ) b. & c. , ; bliss _v._ woods ( ) hag. eccl. , - ; nesbitt _v._ wallace ( ) p. . [ ] canon ; yates _v._ chambers ( ) add. , . [ ] ( ) & vict. c. ; ( ) & vict, c. , s. ; ( ) & vict. c. , s. . [ ] cripps, ; moysey _v._ hillcoat ( ) hag. eccl. , ; bp. of down _v._ miller ( ) ir. ch. rep. app. i., ix.; l. t. n. s. ; kitson _v._ drury ( ) jur. n. s. . [ ] ( ) will. & mar. sess. , c. ; ( ) geo. , c. . [ ] & vict. c. (liberty of religious worship act). [ ] degge, (pt. i. ch. ). [ ] & vict. c. , s. ; & vict. c. , s. . [ ] & vict. c. (private chapels act, ). [ ] hodgson _v._ dillon ( ) curt. . [ ] richards _v._ fincher ( ) l. r. a. & e. . [ ] bosanquet _v._ heath ( ) w. r. ; l. t. n. s. . [ ] ( ) & vict. c. , ss. , , , , ; ( ) & vict. c. , ss. - ; ( ) & vict. c. , s. . [ ] see § above. [ ] ( ) & vict. c. , ss. , - , ; ( ) & vict. c. , ss. - . [ ] & vict. c. , s. . [ ] barratt _v._ kearns ( ) k. b. . [ ] gibs. cod. ; ( ) & vict. c. , ss. , , ; bluck _v._ rackham ( - ) rob. eccl. ; moo. p. c. ; not. of ca. , ; jur. ; _ib._ ; q. b. . [ ] ( ) cha. . c. (act of uniformity) s. . [ ] ( ) & vict. c. , ss. , , - . [ ] ( ) & vict. c. , ss. , - , . [ ] _ib._ ss. - . [ ] _ib._ ss. , . [ ] ( ) & vict. c. , ss. - . [ ] _ib._ ss. , , . [ ] see below, ch. iii. §. (_c_). [ ] ( ) & vict. c. , s. . [ ] ( ) & vict. c. , ss. , . [ ] reichel _v._ bp. of oxford ( ) ch. d. ; aff. ( ) app. ca. ; comp. _ib._ . [ ] gibs. cod. ; wats. ch. iv. p. ; colt _v._ bp. of coventry and lichfield ( ) hob. , . [ ] geo. , c. ; & vict. c. , s. ( ), sch. [ ] robinson _v._ dand ( ) q. b. d. . [ ] ( ) & vict. c. ; ( ) & vict. c. ; maning _v._ hardy ( ) times law rep. . [ ] gathercole _v._ smith ( ) ch. d. ; q. b. d. ; ( ) & vict. c. . s. . [ ] § above. [ ] ( ) & vict. c. , s. ; ( ) & vict. c. , s. . [ ] ( ) eliz. c. , ss. - , . [ ] ( ) eliz. c. , s. ; ( ) cha. , c. , s. . [ ] ( ) cha. , c. , ss. , ; ( ) & vict. c. , s. . see § above. [ ] ( ) & vict. c. , ss. , . [ ] & vict. c. , s. . [ ] & vict. c. (benefices act, ), s. . [ ] ( ) & vict. c. , s. ; ( ) & vict. c. (clergy discipline), s. . [ ] & vict. c. ; & vict. c. . chapter iii unbeneficed clergy . the unbeneficed clergy engaged in parochial work may be divided into (i.) curates or ministers in charge; (ii.) assistant licensed curates; (iii.) unlicensed assistants; and (iv.) lecturers or preachers. an unbeneficed clergyman has no recognised legal status unless he obtains a licence from the bishop of the diocese, for which the fee is s.[ ] at the time of being licensed (unless, having been ordained the same day, he has already done so) he must make and subscribe the declaration of assent prescribed by the clerical subscription act, ; and on the first lord's day on which he officiates in the parish to which he is licensed he must publicly repeat the same declaration in the presence of the congregation during divine service.[ ] canon requires that before a curate or minister is permitted to serve in any place he must be examined and admitted by the bishop, having respect to the greatness of the cure and the meetness of the party. nor, if he removes from one diocese to another, is he to be admitted to serve without the testimony of the bishop of that from which he came, as to his honesty, ability, and conformity to the ecclesiastical laws of the church of england. but this canon gave no absolute right to stipendiary curates to be admitted to serve after examination and upon good episcopal testimony. they might, notwithstanding, "be placed and displaced at the bishop's discretion without any process at law." he is under no obligation to grant a licence to a curate, and cannot be compelled to do so.[ ] it is now, however, enacted, with respect to the removal of curates, that the bishop, after giving him sufficient opportunity of showing reason to the contrary, may summarily revoke the licence granted to any curate and remove him for any cause which appears good and reasonable to the bishop. but the curate may within one month after service upon him of the revocation appeal to the archbishop of the province, who may confirm or annul the revocation as he thinks proper.[ ] . curates or ministers in charge are appointed in a variety of cases. (_a_) if a benefice is vacant, the sequestration of it is granted by the bishop to the churchwardens or some one or more other persons; and subject to the direction of the bishop, if he gives any, the sequestrators are charged with the selection of the person or persons to serve the cure during the vacancy, and the bishop may assign to him or them a stipend not greater in the case of each than at the rate of £ per annum, and so that the aggregate amount assigned do not exceed the net annual income of the benefice. the sequestrators pay the costs of serving the cure out of the revenue of the benefice, and account for the balance to the succeeding incumbent, upon whom on the other hand any deficiency falls if these costs exceed the net revenue received by the sequestrators.[ ] (_b_) where under the bankruptcy of the incumbent, or under a judgment recovered against him, a benefice remains under sequestration for six months, the bishop from the expiration of the six months till the close of the sequestration is to take order for the services in the church of the benefice, and may appoint and license for the purpose one or more curates or additional curates to reside in and serve the parish, subject to revocation at any time, and with such stipends out of the revenue of the benefice as he thinks fit within certain prescribed limits according to the population of the parish, and not exceeding in the whole two-thirds of the annual value of the benefice.[ ] (_c_) where an incumbent is absent from his benefice for a period or periods exceeding altogether three months in any one calendar year, he must leave a curate or curates licensed or approved by the bishop to perform the ecclesiastical duties of the benefice. if he fails to do so, or if after the death, resignation, or removal of any such curate he does not within one month notify the fact to the bishop, or does not within four months nominate another proper curate to the bishop, the bishop may appoint and license a proper curate, with directions as to residence and with a stipend according to a prescribed scale, varying with the value of the benefice and the population of the parish and the grounds of the non-residence of the incumbent. a curate who is appointed to serve in a benefice on which the incumbent does not reside during four months in the year is to be required by the bishop to reside within the parish, or within three miles of the church of the benefice, if no convenient residence can be procured within the parish, except in cases of necessity approved by the bishop. if the population of the benefice exceeds , the bishop may require the incumbent to nominate two or more curates, and, if this is not done, may himself appoint them. a scale of curates' stipends where the incumbent is non-resident is provided by law, varying according to the annual value of the benefice and other circumstances, and the bishop may direct that the curate shall reside in the parsonage house.[ ] (_d_) where a commission appointed to inquire into the matter has reported that the ecclesiastical duties of a benefice are inadequately performed owing to the negligence of the incumbent, the bishop may either require the incumbent to nominate a curate or curates with sufficient stipend to be licensed to perform or assist in performing the duties, or may himself appoint a curate or curates to perform all or any of the duties, subject to an appeal to the court constituted under the benefices act, .[ ] a minister in charge has the rights and powers of an incumbent in certain particulars, such as the choice of a churchwarden, and, if the benefice is vacant, but not if the incumbent is bankrupt, the appointment of the parish clerk.[ ] (_e_) where under the new parishes act, , what is called a peel district is constituted, and a minister is licensed to it by the bishop, he occupies a somewhat ambiguous position during the interval before it becomes a separate ecclesiastical parish upon the consecration of a church within its area. he is in many respects in the position of a perpetual curate, being a corporation sole, subject to the jurisdiction of the bishop and archdeacon, and independent of the incumbent of the parish so far as his licence extends. but he has no power to take marriages or burials, and the inhabitants of the district retain their ecclesiastical position as parishioners of the parish out of which the district is formed.[ ] . assistant unbeneficed clergy are contemplated by the canons, in which they are styled curates; and with the licence of the bishop any incumbent may employ one or more curates to assist him in serving the parish. a curate frequently comes in the first instance on probation without being licensed, and his tenure of office is then entirely dependent on the will of the incumbent.[ ] but after he is licensed it becomes more secure; and, in the meantime, if a difficulty occurred about the remuneration for his services, the law would give it to him upon a _quantum meruit_. in order to obtain a licence, the curate must present to the bishop a declaration by the incumbent undertaking to pay to him a specified annual sum as his stipend and a declaration of his own intention to receive the whole of that stipend; and the licence will specify the amount of the stipend.[ ] any dispute between an incumbent and a curate respecting the curate's stipend is to be decided by the bishop, who may enforce payment of it by monition and sequestration of the benefice.[ ] if the benefice becomes vacant, a curate must quit upon six weeks' notice from the new incumbent, if given within six months from the date of admission to the benefice. but in other cases, unless the bishop revokes his licence (see § above), a curate can only be required to quit after six months' notice given by the incumbent with the previous written permission of the bishop, or of the archbishop, if the bishop refuses it and the archbishop grants it upon an appeal to him within one month after the bishop's refusal. on the other hand, unless he obtains the express written consent of the bishop, a curate before relinquishing a curacy to which he has been licensed must give three months' notice of his intention to the incumbent and the bishop, upon pain of forfeiting to the incumbent, as a debt retainable out of his stipend or recoverable at law, such sum not exceeding half a year's stipend as the bishop may in writing direct.[ ] ordinarily, an incumbent who is himself resident and performing the duties of his cure has complete discretion whether he will employ any, and, if so, how many curates, and what duties shall from time to time be performed by any whom he employs. but, besides the cases of the incumbent's non-residence and negligence in the performance of duties noticed above (§ (_c_), (_d_)), the bishop has power, if a commission issued by him reports that the duties of a benefice are inadequately performed, to require the incumbent, although himself engaged in performing them, to nominate an assistant curate or curates; and, if he fails to do so within three months, the bishop may himself appoint one or more, as the case may require, with a stipend proportionate to the value of the benefice and the population of the parish. the incumbent has an appeal to the archbishop, who may confirm or amend the bishop's action.[ ] moreover, where the annual value of a benefice exceeds £ , and either the population amounts to , or there is a second church or chapel with a hamlet containing persons, the bishop may require the incumbent to nominate an assistant curate, and, on his failing to do so within three months, may himself appoint one with a stipend not exceeding £ ; subject to a similar appeal to the archbishop as in the case where the duties have been inadequately performed.[ ] . an incumbent has an absolute discretion as to permitting or refusing any other clergyman, not being licensed as a curate to the parish, to officiate within his parish, with this qualification, that he has no right to permit any clergyman to officiate in his parish who by law is debarred from taking duty in the diocese. with regard to this, no unbeneficed clergyman has, strictly speaking, a right to officiate publicly in a diocese, either in church or elsewhere, without the licence or consent of the bishop, and his doing so is an ecclesiastical offence.[ ] but if the bishop has not actually inhibited him from officiating, a clergyman may take merely temporary duty without obtaining the formal licence of the bishop.[ ] if, without being either beneficed or licensed to a curacy in the diocese, he frequently takes duty therein, he should obtain a general licence from the bishop for the purpose. canons and direct incumbents and churchwardens not to suffer any one to preach in their churches without showing his licence to preach, and require the names of strangers who preach with the date of their preaching and the name of the bishop by whom they were licensed, to be entered in a book for the information of the bishop of the diocese. . in some parishes provision has been made for the election or appointment of lecturers or preachers for the sole purpose of delivering lectures or preaching sermons. in any such parish the bishop, if he thinks fit, with the assent of the incumbent, may require the lecturer or preacher to perform other ministerial duties as assistant curate or otherwise, and may vary the duties from time to time. if the duties so prescribed are not performed, the defaulter may be removed from his office.[ ] footnotes [ ] ( ) & vict. c. , s. . for the stamp duty on licences, and exemptions therefrom, see ( ) & vict. c. , sch. "licence." [ ] & vict. c. , ss. , ; see ch. ii. § (i.). [ ] johns, vol. i. p. ; see ex parte carlyon ( ) _times_, dec. ; s.c. nom. r. _v._ bp. of liverpool ( ) _times_, may . [ ] ( ) & vict. c. , s. ; poole _v._ bp. of london ( ) jur. n. s. ; ( ) moo. p. c. ; jur. n. s. . [ ] ( ) hen. , c. ; ( ) & vict. c. , ss. - ; dakins _v._ seaman ( ) m. & w. ; ( ) & vict. c. , s. . [ ] & vict. c. (sequestration act, ). [ ] canon ; ( ) & vict. c. , ss. , , - , - , ; ( ) & vict. c. , s. . [ ] see ch. ii. § ; ( ) & vict. c. , ss. , - , ; ( ) & vict. c. , ss. - ; ( ) & vict. c. , s. . [ ] hubbard _v._ penrice ( ) str. ; reg. _v._ allen ( ) l. r. q. b. ; pinder _v._ barr ( ) e. & b. ; lawrence _v._ edwards ( ) ch. ; ch. . [ ] & vict. c. , ss. - . [ ] martyn _v._ hind ( ) cowp. , . [ ] ( ) & vict. c. , ss. , . [ ] ( ) & vict. c. , s. . [ ] ( ) & vict. c. , ss. , . the notices require no special formalities; tanner _v._ scrivener ( ) p. d. . [ ] ( ) & vict. c. , s. ; ( ) & vict. c. , ss. - . [ ] ( ) & vict. c. , s. . [ ] trebec _v._ keith ( ) atk. ; barnes _v_. shore ( ) rob. eccl. ; freeland _v._ neale ( ) _ib._ . as to beneficed clergy, see above, ch. ii. § . [ ] gates _v._ chambers ( ) add. . [ ] & vict. c. (lecturers and parish clerks act, ), ss. , . chapter iv laity of the parish . there is no general law as to the relations between an incumbent and the lay officers of a parish. they vary in ancient and in new ecclesiastical parishes, and in particular places are modified by custom. . the vestry in an ancient parish consists of the ratepayers who are inhabitants of the parish or who, though not residents therein, are rated for the relief of the poor in respect of the parish, and of occupiers of hereditaments so rated. a meeting of the vestry is called by the incumbent and churchwardens by a notice in print or writing, and signed by the incumbent or a churchwarden or overseer, and affixed on or near the doors of all the churches and chapels in the parish in which the service of the church is performed, on some sunday at least three clear days before the meeting is to be held.[ ] the incumbent is _ex officio_ chairman of every vestry meeting. in case of his absence, or of there being no incumbent, the members of the vestry present elect one of themselves as chairman. in case of an equality of votes the chairman, as such, has a casting vote in addition to his previous right to vote as a member of the vestry.[ ] in the event of a poll being demanded, it is taken by open voting, and the members of the vestry have from one to six votes, according to the amount of their assessment, those assessed at an annual value of under £ having one vote, and those assessed at £ and upwards having one vote for every complete £ of their assessment up to £ ; all at or above that figure having six votes and no more. in a new ecclesiastical parish or district a meeting in the nature of a vestry is composed of the same persons as would, if the parish or district were an ancient parish, be entitled to vote in the vestry thereof. but the vestries act, ,[ ] only applies to ancient parishes. consequently there is no plural voting in the quasi-vestry of a new parish, nor need the notice summoning a vestry meeting be given on a sunday three clear days before the meeting.[ ] but in other respects a vestry or a meeting in the nature of a vestry in a new parish is regulated by the same procedure as in an ancient parish. since the abolition of compulsory church rates in , and the transfer of their secular duties to other bodies, the functions of these vestries or meetings, whether in old or in new parishes, have been for the most part confined to the election of churchwardens and the approval, or the contrary, of applications for faculties.[ ] in some places under a local act or by the adoption of the vestries act, ,[ ] the functions of the vestry are exercised by a select vestry consisting of a limited number of householders elected by the parishioners. . with regard to churchwardens, the general law as to their appointment in ancient parishes is declared by the th and th canons. they are to be chosen, if possible, by the joint consent of the minister and parishioners. but if these cannot agree upon the choice, the minister is to choose one and the parishioners another. a stipendiary curate being at the time in charge of the cure stands in the place of the incumbent in the choice of churchwardens.[ ] the election is to be annual, in easter week; but the same persons are re-eligible for any number of years. by custom, however, there may be only one churchwarden or more than two; and, as is the case in the city of london, both may by custom be elected by the parishioners, or by the lord of the manor, or one by the incumbent and the other by the outgoing churchwardens. the election ordinarily takes place at the easter vestry, but an election at another time is valid.[ ] the election of both churchwardens is the act of the whole vestry, whether the minister and parishioners agree in their choice, or the minister chooses one and the parishioners the other. in the latter alternative, therefore, the vote of the minister is exhausted in choosing his own warden, and he cannot also vote as a parishioner in the election of the other warden; though if there is an equality of votes in this election, he apparently can, as chairman of the vestry, decide it by a casting vote.[ ] in the case of all churches built under the church building or new parishes acts, except those which have no district attached to them, two churchwardens are to be annually chosen at eastertide, one by the minister and the other by the persons entitled to attend and vote at a meeting in the nature of a vestry for the parish or district attached to the church.[ ] if the church has no district attached to it, the choice of the second warden is vested in the pewrenters, or, if there are no rented pews, the minister selects both wardens.[ ] churchwardens, after their appointment, have no legal right to exercise their office until they have been admitted by the archdeacon at his visitation, or by the bishop or his chancellor during the years of episcopal visitation, when the archdeacon is inhibited and cannot act. till then, their predecessors remain in office, notwithstanding that their year has expired, and their successors have been appointed.[ ] . the two churchwardens are sometimes distinguished as the parson's or vicar's warden and the people's warden. but there is no legal precedence or seniority between the two, and though chosen differently their duties are identical.[ ] these may be enumerated as follows: (_a_) the care of the fabric of the church, with its ornaments and furniture, and of the churchyard; and the duty of keeping them in proper repair and condition and of adequately insuring against fire so far as funds are in hand for the purpose, except, as regards the chancel, where the rector is liable for its repair.[ ] they have no proprietary rights in the church or its fixtures or in the churchyard, but the movable articles in the church, including the bells and bell-ropes, and sums of money given to the church, belong to them as a corporation for that purpose.[ ] (_b_) the seating of the parishioners and other churchgoers in the church, including the chancel, subject, however, as regards the chancel of an old parish church, to the right of the rector, whether spiritual or lay, and his family, to the chief seat, and to his disposal of the other chancel seats if the bishop or churchwardens take no action respecting them. in this duty the churchwardens act as the officers of the bishop, and are subject to his control if any complaint is made against them. neither the vestry nor the incumbent, nor any individual parishioner, can interfere with their discretion in the matter, except by appealing to the bishop. (_c_) the provision at the expense of the parish of sacramental bread and wine and a surplice for the minister, as required by canons and . (_d_) the maintenance of order in the church and churchyard during divine service. (_e_) the collection of the money at the offertory, and concurrence with the minister in its disposal to pious and charitable uses. (_f_) the charge of the church and benefice and of providing for the cure of souls during a vacancy in the living, if, as is usually the case, they are appointed sequestrators, but not otherwise.[ ] churchwardens can neither add to, alter, or remove any part of the church or its fittings without a faculty, nor can they interfere with the clergyman in his ministrations unless his conduct is such as to be riotous, violent, or indecent within the meaning of the act of against brawling.[ ] the rights and duties of the incumbent on the one hand, and of the churchwardens on the other, in respect of the church and churchyard and the money and property of the church, are so interlaced, that on many points friction cannot be avoided without that harmonious co-operation which should always exist between them, or, if this is unfortunately impossible, at any rate without mutual forbearance and concession. . the th canon directs that the minister and parishioners in every parish, if they can agree, shall yearly in easter week choose two or three or more discreet persons as sidemen (or, as they are now called, sidesmen) to assist the churchwardens in performing the duties of their office. if no agreement is come to, they are to be appointed by the bishop. this canon only applies to ancient parishes, and therefore sidesmen appointed, as is frequently the case, in new ecclesiastical parishes have, strictly speaking, no legal status. they are, however, frequently treated as if they possessed it, and in these, as well as in ancient parishes, assist the churchwardens in seating the people and taking the collections in church. no practical harm is likely to result from this unless they undertook such a duty as, for instance, the forcible ejection of a person misbehaving in church, in which case their right to do so might be called in question. . in addition to the churchwardens a body of church trustees may now be appointed in any parish to accept contributions and hold funds for certain defined ecclesiastical purposes.[ ] they are to consist of the incumbent and two householders or owners or occupiers of land in the parish, chosen in the first instance and on the happening of a vacancy, one by the patron and the other by the bishop, the incumbent being chairman. they are a body corporate under the name of the church trustees of the parish in which they are appointed, with perpetual succession and a common seal, and power to sue and be sued in their corporate name. as circumstances from time to time require, they may pay over funds in their hands to the churchwardens to be applied to the defined ecclesiastical purposes of the parish generally or to one or more of them specifically, due regard being had to any particular directions of the donors. funds not so paid over may be invested in government or real securities and accumulated, with a view to the capital or income being applied at a subsequent time. at least once a year the trustees must lay before the vestry all accounts and particulars of their receipts and expenditure during the preceding year, and of the balance of funds in their hands.[ ] . the appointment and duties of the parish clerk vary in old and new parishes, and depend in some cases on custom. in old parishes the office is a freehold, and the right of appointment usually rests with the incumbent, who can exercise it even when the living is sequestrated owing to his bankruptcy; but in case of his being under suspension, it devolves on the curate in charge. the right, however, may by custom belong to the parishioners in vestry. an old writer compared the parish clerk to a bat, as being half-bird, half-beast, or half-clerical and half-lay, though he considered that his clerical wings outbalanced his lay body. but it is now held that the office is temporal, and not spiritual.[ ] a person in holy orders may, however, with the consent of the bishop, be appointed parish clerk under the lecturers and parish clerks act, , and, if so appointed, he is removable in the same way as a stipendiary curate. the same act provides for the suspension or removal by the archdeacon, of a parish clerk not in holy orders, who has been guilty of neglect or misbehaviour in his office, or of misconduct which renders him unfit to hold it.[ ] in all new ecclesiastical parishes, on the other hand, the appointment of the clerk rests with the incumbent, and, in the case of churches and chapels provided under the church building acts of and , is made annually; while in the case of those provided under the new parishes acts of , , and , the clerk does not vacate his office at the end of each year, but may at any time be removed by the incumbent, with the consent of the bishop, for misconduct.[ ] . there is no universal rule as to the appointment, duties, and tenures of office of the sexton or sacristan. where, in accordance with the etymology of his name, his duties are confined to the custody of the sacred vessels and vestments, the care and cleaning of the church, the opening and closing of the doors, and the ringing of the bells, his appointment, in the absence of a contrary practice, will naturally rest with the churchwardens. where, on the contrary, he has only to do with the churchyard and grave-digging, his appointment will be presumed to be in the hands of the incumbent. if, however, he is charged with both sets of functions, the incumbent and the churchwardens jointly will be presumed to have the right of appointing him. on the other hand, in some few ancient parishes he is elected by the vestry. the office may be held by a woman, and in some places is a freehold for life; but usually it is held during pleasure, and the power of removal rests in the same hands as that of the appointment.[ ] in new ecclesiastical parishes the sexton is to be appointed by the incumbent, and, with the consent of the bishop, is removable by him for misconduct.[ ] . another old parochial office was that of beadle--the bidder, crier, or messenger of the parish--whose duty was to attend in that capacity on the incumbent, churchwardens, and vestry. his position and duties were rather civil than ecclesiastical, but the vestry could sanction his salary being paid out of the church rate. he was also frequently employed to keep order in the church and churchyard during divine service; and the church building act, , enumerates the payment of the salaries of beadles and pew-openers as well as of the clerk, as one of the expenses incidental to the performance of divine service, to be paid out of the rents of pews in churches built under that act.[ ] . the organist and choristers, and any other lay officials beyond those already mentioned, who may be employed in or about the church or churchyard, are under the exclusive control and direction of the incumbent, and, as a rule, are appointed by him. but in some parishes the organist is, or was, when paid out of the church rate, selected by the vestry. whether he is appointed by them or by the incumbent, his office is not a freehold; but he as well as the other officials now under consideration may be dismissed from office on proper notice, the length of which should be laid down at the time of appointment. if no time is then fixed, the proper length of notice may, in case of dispute, be a very difficult question to decide. it will depend in part on the terms of the engagement, and of the salary. if the salary be so much per month, probably one month's notice of dismissal would suffice. not less than three months' notice would be requisite if the salary is so much per quarter; while if the salary is an annual sum, even this notice might perhaps be insufficient. whatever be the mode of appointment and terms of the engagement of the organist, the incumbent has, within the bounds of legality, and so far as he does not voluntarily surrender it, the absolute right to control the use of the organ and the performance of music in the church, both during divine service and at other times.[ ] but, unless he is prepared to defray the cost out of his own pocket, this right must, of course, in practice, be limited by the extent to which the parishioners or congregation are willing to give the necessary financial support to his arrangements. . the old rank of reader, which was formerly one of the minor orders, was temporarily revived after the reformation to supplement the lack of clergy, and seems to have been continued in some remote districts till the close of the eighteenth century.[ ] it has in recent times been resuscitated as a lay office.[ ] moreover, the practice has of late years increased of the lessons being read in church by laymen at the request of the incumbent, without the express sanction of the bishop. but an incumbent ought not, without that sanction, to permit a layman to take any other part in any service in a consecrated building. the officiating of a layman in an unconsecrated building does not stand quite on the same footing; but, as a matter of church order and regularity, the approval of it by the bishop should be procured, through the layman being expressly authorised as a lay reader, or in some other manner, especially if the building is licensed for divine worship. all such laymen must, of course, act with the consent, and under the direction, of the incumbent of the parish. . laymen and women engaged in less formal kinds of parochial work (among which is the visiting of the poor and sick contemplated by canon as one of their occupations on sundays and other holy days) are responsible to the incumbent alone, and should act with his permission and under his directions. the sunday schools, with their superintendents and teachers, are under his sole control. his powers with regard to the religious instruction given in any church elementary school in the parish depend upon the terms of the trust-deed or scheme (if any) regulating the school, and upon the subsection in the education act, , that religious instruction given in a public elementary school not provided by the local authority shall, as regards its character, be in accordance with the provisions (if any) of the trust-deed relating thereto, and shall be under the control of the managers; provided that nothing in the subsection is to affect any provision in a trust-deed for reference to the bishop or superior ecclesiastical or other denominational authority, so far as such provision gives to the bishop or authority the power of deciding whether the character of the religious instruction is or is not in accordance with the provisions of the trust deed.[ ] . parochial church councils, where they exist, like ruridecanal and diocesan conferences, rest at present on a purely voluntary basis. whatever, therefore, may be their advantages, and however desirable may be their incorporation into our regular church system, the parish clergy stand as yet in no legal relation to them. footnotes [ ] ( ) geo. , c. ; ( ) will. & vict. c. ; ( ) & vict. c. , ss. , ; dawe _v._ williams ( ) add. , ; ormerod _v._ chadwick ( ) m. & w. ; l. j. m. c. ; burnley _v._ methley overseers ( ) el. & el. ; rand _v._ green ( ), jur. n. s. ; c. b. n. s. ; l. j. c. p. . [ ] ( ) geo. , c. , s. ; wilson _v._ m'math ( ) phill. ; b. & ald. ; reg. _v._ d'oyly ( ) a. & e. ; jur. ; r. _v._ bp. of salisbury ( ) k. b. , , aff. k. b. . [ ] geo. , c. (commonly called sturges bourne's act). [ ] reg. _v._ barrow ( ) l. r. q. b. . [ ] see § , and ch. v. § (a), ix. § . [ ] & will. , c. . [ ] hubbard _v._ penrice ( ) str. . [ ] butt _v._ fellowes ( ) curt. . [ ] stoughton _v._ reynolds ( ) str. ; r. _v._ bp. of salisbury ( ) k. b. ; aff. k. b. . [ ] ( ) geo. , c. , s. ; ( ) & will. , c. , s. ; ( ) & vict. c. , s. ; ( ) & vict. c. , ss. , ; ( ) & vict. c. , ss. , . [ ] ( ) & will. c. , s. ; ( ) & vict. c. , s. . [ ] canon ; bray _v._ somer ( ) b. & sm. : jur. n. s. ; bremner _v._ hull ( ) l. r. c. p. ; reg. _v._ sowter ( ) k. b. ; rev. _ib._ . for further particulars as to the qualifications and election of churchwardens of ancient parish churches and the churches enumerated in the note to ch. i. § above, see sm. churchw. - . [ ] sm. churchw. , - . [ ] stat. edw. (_circumspecte agatis_); canon ; ch. ix. § below. [ ] att.-gen. _v._ ruper ( ) p. wms. . [ ] sm. churchw. pt. iii. ch. i.-iii.; pp. - . [ ] & vict. c. . a clergyman can be proceeded against for brawling either under that act or in the church courts as an ecclesiastical offender. [ ] viz. "the building, rebuilding, enlargement, and repair of any church or chapel, and any purpose to which by common or ecclesiastical law a church rate is applicable." ( ) & vict. c. , s. . besides necessary church repairs, sacramental bread and wine, and other articles needed for divine service, a church rate could, with the consent of a majority of the vestry, be applied to provide an organ and other church furniture, and to pay the salaries of organist, pew-openers, and other lay officials, but not the stipend of the incumbent or a curate. burn, _a_, _b_. [ ] ( ) & vict. c. , s. . [ ] canon ; the parish clerk's case ( ) co. rep. ; pinder _v._ barr ( ) e. & b. ; lawrence _v._ edwards ( ) ch. ; ch. . [ ] & vict. c. . [ ] ( ) geo. , c. , s. ; ( ) & vict. c. , s. ; reg. _v._ ossett ( ) q. b. ; jackson _v._ courtenay ( ) e. & b. . [ ] ile's case ( ) ventr. ; r. _v._ thame (churchwardens) ( ) str. ; olive _v._ ingram ( ) str. ; r. _v._ taunton st. james (churchwardens) ( ) cowp. ; r. _v._ minister, &c., of stoke damerel ( ) a. & e. , , sq.; cansfield _v._ blenkinsop ( ) ex. . [ ] ( ) & vict. c. , s. . [ ] & will. , c. , s. . [ ] wyndham _v._ cole ( ) p. d. . [ ] burn, ; strype's annals, vol. i. ch. xiii., xxx. pp. - , , sq.; (ed. , pp. - , - ); martyn _v._ hind ( ) cowp. , - , . [ ] particulars as to readers and their powers and functions in consecrated buildings and elsewhere will be found in another handbook of the present series: _lay work and the office of reader_, by dr. yeatman-biggs, afterwards made bishop of worcester. [ ] edw. , c. , s. ( ). chapter v divine service . every deacon and priest before his ordination, and, as mentioned above, every incumbent, before he is admitted to his benefice, and every stipendiary curate, on entering upon his curacy, declares that in public prayer and administration of the sacraments he will use the form prescribed in the book of common prayer and none other except so far as ordered by lawful authority.[ ] this uniform use is enjoined by the acts of uniformity and the prayer book itself, which has legal force as part of the act of , and by the th canon, except so far as modifications are permitted under the act of uniformity amendment act of , which, like the act of , was passed at the instance of convocation.[ ] no clergyman, therefore, may alter, add to, or diminish the form of worship therein prescribed, including the lessons.[ ] the expression "lawful authority" occurs in the act of , which directs that in those portions of the prayer book which relate to the king, queen, or royal progeny the names shall be altered from time to time as occasion requires according to the direction of lawful authority. this is explained by bishop gibson to mean, according to practice, the authority of the sovereign in council.[ ] the archbishops and bishops have no authority, combined or singly, to order modifications of or additions to the forms of divine service, except to the extent permitted by the act of . the preface to the prayer book "concerning the service of the church" expressly contemplates that in lieu of diversity of use in different dioceses and parts of the realm, all shall henceforth have but one use. the only function of the prelates which it recognises in the matter is the power of the bishop to set at rest any doubts which may arise as to the construction of the prayer book and the proper practice thereunder, with liberty to him, if he is himself in doubt, to refer to the archbishop. but the act of permits (_a_) the use, upon a special occasion approved by the ordinary, of a special form of service approved by him, and containing nothing except anthems or hymns, which does not form part of the holy scriptures or book of common prayer, and also (_b_) the use, on any sunday or holy day, as supplementary to the services prescribed by the prayer book, of an additional form of service, approved by the ordinary as to its form and mode of use, and containing no portion of the communion service and nothing except anthems or hymns which does not form part of the holy scriptures or book of common prayer. the same act authorises the use of a shortened order for morning or evening prayer on any day except sunday, christmas day, ash wednesday, good friday, and ascension day; and the use of the morning prayer, the litany, and the communion service, in varying order as separate services,[ ] and the saying of the litany after the third collect in evening prayer, without prejudice to any legal powers vested in the ordinary, and either with or without a sermon, lecture, or homily; and also the preaching of a sermon without being preceded by a service appointed by the prayer book, provided that it be preceded by a service authorised by the act, or by a collect from the prayer book with or without the lord's prayer. . the prayer book contains an "order for morning and evening prayer daily to be said and used throughout the year"; and under the prefatory heading "concerning the service of the church," it is directed that all priests and deacons are to say daily the morning and evening prayer either privately or openly, not being let by sickness or some other urgent cause. and the curate who ministers in a parish church, being at home and not being otherwise reasonably hindered, is to say the same in the church, after summoning the people by a bell to come and hear god's word and pray with him. a bishop, however, has no power to enforce daily services;[ ] and daily service has been held not to be requisite under a trust to perform the service "in strict and literal accordance with the order of the book of common prayer."[ ] but the act of uniformity of , s. , expressly enacts that the morning and evening prayers contained in that book shall, on every lord's day, and on all other days and occasions, and at the times therein appointed, be openly read by every minister or curate in every church, chapel, or other place of public worship.[ ] and the th and th canons direct that the common prayer shall be said or sung distinctly and reverently upon such days as are appointed to be kept holy by the prayer book and their eves, and that the litany shall be said or sung when and as prescribed in the prayer book; and in particular on wednesdays and fridays weekly, though they be not holy days, the minister at the accustomed hours of service is to resort to the church and say the litany after warning the people by tolling a bell. a later enactment empowers the bishop, at his discretion, to order two full services (each, if he so directs, to include a sermon or lecture) on every sunday throughout the year or any part of the year in the church or chapel of any benefice, whatever its annual value or population, and also in certain cases where a benefice is composed of more than one parish or chapelry, in the church or chapel of each of them.[ ] and where he considers that the population requires it, he may direct the celebration on sundays and the great festivals of a third service, being either the morning or evening service with a third sermon, and for the performance of this third service may insist on a curate being nominated, whose salary is to be provided by the pews being specially let for the service or by subscription.[ ] it is rarely necessary in the present day to put in force these powers, since in most parishes the number of services considerably exceeds the legal _minimum_. . under the rubrics following the nicene creed and at the beginning of the marriage service, as modified by the parish notices act, ,[ ] the minister is alone authorised to give out notices during divine service; and he may not publish either during or after divine service notices of proceedings in ecclesiastical courts, or of vestry meetings, or of any other matter except banns of matrimony, announcements of the communion, and of holy days and fasting days during the ensuing week, and of anything else prescribed by the prayer book or enjoined by the king or the ordinary. other notices must be put up at or near the church door. banns are to be published at the time of morning service (or of evening service if there is no morning service) immediately after the second lesson. other lawful notices are to be given at the close of the nicene creed. . the only rubrical provision for the collection of money during divine service is at the time when the offertory sentences are read, whether a communion follows or not. the money is then to be received by the deacons, churchwardens, or other fit person,[ ] and is to be disposed of to such pious and charitable uses as the minister and churchwardens think fit; wherein if they disagree, it is to be disposed of as the ordinary shall appoint. money collected at other times during divine service ought to be brought up to the minister to be placed on the holy table, like the offertory money; but, unlike this, it is under the sole control and disposal of the incumbent; unless it is collected for church expenses or repairs for which the churchwardens are responsible, in which case it should be handed over to them.[ ] and if the purpose for which the collection is made is announced beforehand, there is, of course, a legal as well as moral obligation to apply the money collected to that purpose. offertory alms collected in a chapel are at the disposal of the incumbent and wardens of the parish church.[ ] . questions arose during the last century as to (_a_) the legality of certain ornaments of the church, (_b_) the dress of the clergy, and (_c_) ceremonies in connection with divine service, and especially with the holy communion; having regard, among other considerations, to the ornaments rubric in the prayer book. according to the legal decisions on these questions:[ ] (_a_) the holy table must be of wood and, according to canon , should be covered during divine service with a carpet of silk or other decent stuff, and with a fair linen cloth at the time of the ministration.[ ] a crucifix, except as a mere architectural decoration or as part of an historical representation of the crucifixion, is illegal; but a cross is legal, provided it be not upon or in actual or apparent contact or connection with the holy table.[ ] candlesticks and vases of flowers are legal even in such contact or connection,[ ] and so are pictures or sculptures of an historical or allegorical character, whether in a reredos or elsewhere in the church, except those known as the stations of the cross, which have been held liable to superstitious abuse.[ ] the legality of isolated figures, whether painted or sculptured, depends on whether from their character and position there is no likelihood of their being superstitiously reverenced.[ ] a credence table is legal and proper.[ ] a second holy table is only legal if placed in a part of the church closed in, by lattice work or otherwise, as a separate place of worship for services attended by few worshippers.[ ] chancel gates are permitted, if required for the protection of the chancel when the church is accessible for private prayer; but they must be always kept open during divine service.[ ] the erection of a baldacchino or canopy over the holy table is not permissible.[ ] but the introduction of legal ornaments and additions into a church will not ordinarily be sanctioned without the approval of the parishioners, expressed by a resolution of the vestry.[ ] (_b_) the legal attire of the ministering clergy at the holy communion, as well as in other ministrations, has been decided to be that laid down by the advertisements of , which are followed in canons , , and , and prescribe the wearing of a surplice with the proper hood of the university degree (if any); except that in cathedral and collegiate churches the celebrant and gospeller and epistler shall wear copes. the rubric of the first prayer book of edward vi., had directed that the celebrant should wear a white albe plain with a vestment (_i.e._ a chasuble) or cope, and any assistant priests or deacons should wear albes with tunicles.[ ] stoles, as distinguished from the scarves of chaplains, have no legal authority.[ ] a biretta (the foreign form of a college cap) must not be worn during the communion service.[ ] in preaching (except, possibly, during the communion office) the surplice or the black gown are equally legal.[ ] (_c_) the ceremonial use of incense and processions with lighted candles are illegal,[ ] but a celebration of holy communion with two lighted candles on or above the table is permissible.[ ] the administration of the mixed chalice is legal, but the wine and water must not be ceremonially mixed during the service.[ ] wafers, not consisting of bread "such as is usual to be eaten," have been held illegal.[ ] the singing of the agnus dei or of any other hymns during the administration of the elements is permissible.[ ] a minister may stand either on the north or the west side of the table during the service; but not so as to hide the manual acts from the people.[ ] he must not kneel or bow before the elements during the prayer of consecration, or elevate them above his head during administration; nor may he use the sign of the cross during the absolution or benediction.[ ] ablutions of the paten and chalice after the benediction, being no part of the service, are not illegal.[ ] reservation of any parts of the consecrated elements at the close of the communion service is illegal.[ ] . no minister is to refuse or delay to christen according to the form of the book of common prayer any child brought to him to the church for that purpose on a sunday or holy day, after notice given to him overnight or in the morning before the beginning of morning prayer. the ceremony should take place immediately after the second lesson at either morning or evening prayer. the congregation can then testify the receiving of the newly baptized into the number of christ's church, and all present are reminded of their own profession made to god in their baptism. but if necessity requires, children may be baptized on any other day.[ ] the law is the same as regards children of church people and of dissenters, and as regards legitimate and illegitimate children. if a minister is duly informed of the weakness and danger of death of an unbaptized infant in the parish, and is desired to go and baptize him, he must not refuse or so delay that the infant dies through his fault unbaptized.[ ] but in every other case a male child must have two godfathers and one godmother, and a female child one godfather and two godmothers; and a minister will, of course, not admit as a sponsor a person notoriously leading an immoral life or otherwise manifestly unfit for the office. godparents must have received the holy communion, and a father cannot be godfather for his own child.[ ] in the canterbury convocation, with the royal licence, framed a new canon repealing this prohibition; but the canon was never ratified by the crown, nor was any similar canon passed by the york convocation. the form for the ministration of private baptism in houses contains a service for the public reception in church, as one of the flock of true christian people, of a child who, in case of emergency, has been baptized at home, and also a formula of conditional baptism to be substituted for the words of actual baptism in cases where there is a doubt whether the essential parts of the sacrament were observed in the private performance of the ceremony. the rubrics direct immersion in the case of the public baptism of infants, if the godparents certify that the child can endure it, and affusion, if they certify that the child is weak. naturally, affusion alone is directed in the case of private baptism. in the case of the baptism of adults, immersion or affusion are directed as alternatives, the discretion being left with the minister and not with the godparents. the rubric directs that, before adult persons are to receive baptism, not less than one week's previous notice shall be given to the bishop, or a person appointed by him, by the parents or some other discreet persons, in order that due care may be taken for their examination as to their knowledge of the principles of the christian religion, and that they may be exhorted to prepare with prayers and fasting for the reception of that holy sacrament. the baptismal services throughout contemplate the performance of the ceremony by a priest; but in the form of making of deacons a deacon is expressly authorised to baptize infants in the absence of the priest. lay baptism is valid in case of emergency; but, of course, a layman is not at liberty to use the baptismal service. . the holy communion is to be administered in every parish church and chapel so often and at such times as that every parishioner may communicate at least twice in the year (whereof the feast of easter shall be one).[ ] warning is to be given to the parishioners "publicly in church at morning prayer" on the sunday before every time of administering the holy communion,[ ] and the present rubric requires that so many as intend to be partakers of the sacrament shall signify their names to the curate, meaning the incumbent, at least some time the day before. in the first prayer book of edward vi. this rubric ran: "so many as intend to be partakers of the holy communion shall signify their names to the curate overnight or else in the morning afore the beginning of matins or immediately after."[ ] the incumbent must not deny the sacrament, without lawful cause, to any person that devoutly and humbly desires to receive it.[ ] but he is directed both by the canons and by the rubric to repel from communion, until repentance, open and notorious evil livers, and those who have wronged their neighbours by word or deed so as to offend the congregation, and those between whom he perceives malice and hatred to reign. the canons add to the list common and notorious depravers of the book of common prayer, or the ordering of bishops and priests, or the thirty-nine articles, or depravers of the sovereign authority of the king in causes ecclesiastical, and those who refuse to kneel when receiving the communion or to be present at public prayers according to the order of the church of england. when any one is so repelled, the incumbent must report the matter to the ordinary within fourteen days, or sooner if required by the offending person or by the ordinary himself, and must obey his order and direction in reference to it. the rubric directs that the ordinary shall proceed against the offender according to the canon, that is to say, by such ecclesiastical censures and punishments as can be inflicted.[ ] in jenkins _v._ cook[ ] the meaning of a "common and notorious depraver of the book of common prayer" was discussed, and the judicial committee of the privy council held that it did not include a person who omitted certain parts of the bible from his family reading because he held them, in their generally received sense, to be incompatible with religion or decency. but while they assumed that being a depraver of the prayer book would be as valid a cause for denying communion as being an open and notorious evil liver, they did not actually decide whether the canons, which do not as such bind the laity, can of their own authority prescribe causes, sufficient or lawful, for denying communion within the meaning of the act of .[ ] it would not be expedient in the present day for an incumbent, under canons and , to refuse the communion to persons merely because they came from outside his parish to communicate in his church instead of in their own parish church. nor can he lawfully refuse it to a person who occasionally attends or even communicates in a dissenting place of worship.[ ] the question of admitting to communion persons who have been baptized in another communion or christian body, and have not been confirmed in the church of england, is one of more difficulty. the rubrics in the communion office itself are silent on the subject. but the exhortation at the close of the public baptism of infants directs that the child shall be brought to the bishop to be confirmed without delay after a sufficient course of instruction. the rubric at the close of the baptismal service for adults declares the expediency of every person so baptized being confirmed by the bishop with all convenient speed after baptism, that so he may be admitted to the communion; and the rubric at the end of the order of confirmation prescribes that there shall none be admitted to the communion until such time as he be confirmed, or be ready and desirous to be confirmed. these rubrics must be read together, and are clearly framed with a view to persons baptized in the church of england. in fact the prayer book nowhere contemplates the case of a person who, having been validly baptized in another communion or body, afterwards joins the church of england, or the case of a person belonging to some other communion who, while temporarily resident in england, desires, without forsaking his own communion, to communicate with his fellow christians of our church. as the rubrics stand, such persons, unless and until actually confirmed, have no right to require a clergyman to admit them to communion, and he commits no legal offence by refusing to do so. on the other hand, a considerable number of such persons do, as a matter of fact, communicate in our church without having been confirmed or being desirous to be confirmed; and a clergyman who admits them, in the absence of any direction of the bishop to the contrary,[ ] may be acting in a wise and christian manner. . the rubrics of the communion office prescribe that a sermon or one of the authorised homilies shall follow the nicene creed whenever that portion of the office is used, whether a communion actually takes place afterwards or not. and the th canon enjoins the preaching of one sermon every sunday of the year. the power of the bishop to require a second and even, in certain cases, a third sermon has already been noticed.[ ] but, inasmuch as the prayer book contains no direction that sermons shall follow matins or evensong, such sermons may be regarded as in the nature of separate or additional services. the th canon prescribes that all sermons, lectures, and homilies shall be preceded by what is called the bidding prayer and the lord's prayer. but this rule is not in practice observed in the case of sermons in the middle of the communion service or immediately following some other service. under the act of uniformity amendment act of , morning and evening prayer, the litany, and holy communion may any of them be used with or without the preaching of a sermon or lecture or the reading of a homily; and a sermon or lecture may be preceded either by one of the services appointed by the prayer book or by a service authorised by that act, or by a collect taken from the prayer book, with or without the lord's prayer.[ ] . regular catechising is enjoined both by the canons and by the prayer book. but the direction in the th canon, that it shall take place for half-an-hour or more before evening prayer, is superseded by the rubric at the end of the catechism, which requires the incumbent of every parish diligently upon sundays and holy days, after the second lesson at evening prayer, openly in the church to instruct and examine so many children of his parish sent to him as he shall think convenient, in some part of the catechism. . the churching of women is regulated by the rubrics at the commencement and close of the service for the occasion in the prayer book. it is contemplated as the first service in which a woman takes part after recovery from childbirth; but no specific time is prescribed for it beyond the recommendation that she should receive the holy communion if there be a communion. in former times a woman was not to be churched after an illegitimate birth unless she had previously done penance or acknowledged her fault before the congregation at the time of her churching. since penance has fallen into disuse, a clergyman must exercise his own discretion in such cases; but he will, of course, neither church nor admit to communion a woman who impenitently continues a sinful life. the rubric directs that "accustomed offerings" shall be offered at a churching, but their amount is not regulated by any general or well-established rule.[ ] footnotes [ ] ch. ii. § (i.); ch. iii. § ; ( ) & vict. c. , ss. , - . [ ] ( ) eliz. c. ; ( ) cha. , c. ; ( ) & vict. c. ; westerton _v._ liddell ( ) moore's special report, ; martin _v._ mackonockie ( ) l. r. p. c. , at p. ; l. j. eccl. , at p. . [ ] newbery _v._ goodwin ( ) phill. . [ ] gibs. cod. ; see note to ch. ii. § (i.) above. [ ] as to the normal order independently of the act, see the rubrics and note to § below. [ ] cripps, . [ ] _re_ hartshill endowment ( ) beav. . [ ] this applies only to a church served by a distinct minister, and not where there are two churches in one parish. but even in such a case the incumbent has no right wholly to close one church and hold all the sunday services in the other; rugg _v._ bp. of winchester ( ) l. r. p. c. ; l. j. eccl. . [ ] ( ) & vict. c. , s. . [ ] ( ) geo. , c. , ss. , . [ ] will, & vict. c. . [ ] the appointment of such person rests with the incumbent or principal officiating minister; a clergyman in priest's orders is not a "fit" person to collect the offertory money. cope _v._ barber ( ) l. r. c. p. . [ ] sm. churchw. ; reg. _v._ o'neill ( ) j. p. ; howell _v._ holdroyd ( ) p. . an incumbent often takes sole charge not only of money collected in church but of money collected by appeals within and outside the parish. he should in all such cases lodge it at a bank on a separate account, and notify in his appeal that this will be done. he cannot otherwise reasonably expect to be entrusted with money by strangers; and if the money is mixed with his own, it may be difficult or impossible to disentangle it in the event of his sudden illness and death. [ ] moysey _v._ hillcoat ( ) hag. eccl. , at p. . [ ] as stated in ch. i. § , these decisions are part of our church law, until reversed or altered by future judicial decisions or by legislation. as intimated in the preface, no opinion is here expressed as to their correctness, or as to what the law ought to be on the points with which they deal. it has been questioned whether in the ornaments rubric and in the act of uniformity of ( eliz. c. ), from which it is derived, the mention of such ornaments as were in the church by authority of parliament in the second year of edward vi. refers to the ornaments sanctioned by the first prayer book of edward vi., the use of which was enjoined by the act of uniformity of ( & edw. , c. ), or to those previously in use. it may be observed that this act is referred to as made in the second year of the reign in the later act of uniformity of ( & edw. , c. , s. ), and the book itself is associated with that year in the th article. in the bp. of winchester's case ( ) co. rep. a, the payment of tithes act of the same session ( & edw. , c. ) is referred to as made in the parliament holden in the second year of edward vi. see also westerton _v._ liddell ( ) moore's special report, , ; martin _v._ mackonockie ( ) l. r. p. c. , at p. ; elphinstone _v._ purchas ( ) l. r. a. & e. , . [ ] faulkner _v._ litchfield ( ) rob. eccl. ; westerton _v._ liddell ( ) moore's special report, - . a variety of embroidered cloths is permissible; _ib._ . but the decision in _re_ st. luke's, chelsea ( ) p. , that marble is "stuff" within canon , seems open to question. [ ] phill. eccl. law, - ; liddell _v._ beal ( ) moo. p. c. , ; durst _v._ masters ( ) p. d. ; ridsdale _v._ clifton ( ) p. d. ; bradford _v._ fry ( ) p. d. , ; _re_ st. matthias, richmond ( ) p. ; _re_ st. ethelburga ( ) p. ; _re_ st. john baptist, paignton ( ) p. . [ ] liddell _v._ beal, _ubi sup._; elphinstone _v._ purchas ( ) l. r. a. & e. . [ ] boyd _v._ phillpotts ( ) l. r. a. & e. ; ( ) p. c. ; hughes _v._ edwards ( ) p. d. ; _re_ st. mark, marylebone ( ) p. ; davey _v._ hinde ( ) p. ; ( ) p. . [ ] _re_ st. lawrence, pittington ( ) p. d. ; _re_ st. john, pendlebury ( ) p. . [ ] westerton _v._ liddell ( ) moore's special report , ; overruling faulkner _v._ litchfield ( ) rob. eccl. . [ ] _re_ holy trinity, stroud green ( ) p. d. ; _re_ st. mark, marylebone ( ) p. . [ ] _re_ st. agnes, toxteth park ( ) p. d. ; _re_ st. john baptist, timberhill ( ) p. . [ ] white _v._ bowron ( ) l. r. a. & e. ; l. j. eccl. . [ ] groves _v._ rector of hornsey ( ) hag. cons. ; clayton _v._ deane ( ) not. of ca. , ; vicar of tottenham _v._ venn ( ) l. r. a. & e. ; peek _v._ trower ( ) p. d. ; nickalls _v._ briscoe ( ) p. . see also note ( ) on p. below. [ ] ridsdale _v._ clifton ( ) p. d. . see note ( ) on p. . [ ] elphinstone _v._ purchas ( ) l. r. a. & e. . [ ] enraght's case ( ) l. r. q. b. d. ; ( ) a. c. . [ ] _re_ robinson: wright _v._ tugwell ( ) ch. . [ ] sumner _v._ wix ( ) l. r. a. & e. ; the archbishops on incense and lights in processions: hearing at lambeth ( ) _times_, aug. (also published by macmillan & co., , price s.) [ ] read _v._ bishop of lincoln ( ) p. ; ( ) a. c. . [ ] ridsdale _v._ clifton ( ) p. d. . the first prayer book of prescribed unleavened wafers, but directed that each must be divided and distributed in two or more pieces, in order, no doubt, that the symbolism indicated in cor. x. might not be wholly lost. [ ] read _v._ bishop of lincoln, _ubi sup._ the legality of the usual hymns and music has been long recognised; hutchins _v._ denziloe ( ) hag. cons. . [ ] martin _v._ mackonockie ( ) l. r. p. c. ; ( ) l. r. p. c. ; read _v._ bishop of lincoln, _ubi sup._ [ ] read _v._ bishop of lincoln, _ubi sup._ [ ] archbishops' hearing at lambeth ( ) _times_, may . see ch. viii. § . [ ] canon ; prayer book rubric. [ ] canon . [ ] canon . [ ] canon ; prayer book rubric. [ ] canon . [ ] this rubric, with the substitution of "morning prayer" for "matins," was repeated in the prayer books of and . on the other hand, in our present prayer book, where the allusion to morning prayer is omitted from the rubric, the intention that it shall, in the ordinary course, precede the holy communion is indicated by the fact that matt. xxvi. and john xviii. have been removed from the gospels for palm sunday and good friday, where they had previously stood with the succeeding passages which form our present gospels for those days, and have been made the second lessons at morning prayer. in the earlier prayer books no special second lessons were assigned for those two days. but as to the use of morning prayer, the litany, and the holy communion together, or in varying order as separate services, see now § above. the prayer book does not seem to contemplate communion more than once in the day. where the office is used oftener, it must be repeated entire on each occasion. [ ] ( ) edw. , c. , s. . [ ] canons , , ; prayer book rubric. [ ] ( ) l. r. a. & e. , rev. on app. ( ) p. d. . [ ] see p. above, and note ( ) on that page. [ ] swayne _v._ benson ( ) times law rep. . [ ] the passage in the statement _concerning the service of the church_ at the beginning of the prayer book, respecting the bishop taking order for the appeasing of doubts concerning the manner of understanding and carrying out the contents of the book, might apply to the treatment of such persons. [ ] § above. [ ] & vict. c. , ss. , . [ ] phill. eccl. law, pt. iii. ch. viii. pp. - . chapter vi marriage . with the exceptions mentioned in § below, the incumbent or minister of the church of an ancient or new ecclesiastical parish, or of a church or chapel specially authorised for the publication of banns and solemnisation of marriages, is bound, in the case of persons who are legally competent to be married in that church or chapel, to publish or permit the publication of banns and solemnise or permit the solemnisation of marriage, either after due publication of banns or under a licence from the bishop or the archbishop of canterbury, and he may consent to the solemnisation of the marriage upon a proper registrar's certificate. if he improperly refuses publication of banns or solemnisation of marriage, it is an ecclesiastical offence for which he is liable to be punished under the clergy discipline act, , but it is a question whether he would be liable to a civil action or an indictment for the refusal.[ ] on the other hand, a clergyman who knowingly and wilfully solemnises a marriage in an unauthorised building or outside the lawful hours (unless under special licence from the archbishop of canterbury), or without due publication of banns (unless under licence from him or from the bishop, or upon a proper registrar's certificate), will be guilty of felony; and a marriage solemnised with the knowledge of the parties thereto elsewhere than in an authorised building or without publication of banns or the registrar's certificate, unless with a sufficient licence, will be void.[ ] . the ancient parish churches were the original places for the publication of banns and solemnisation of marriages;[ ] but the churches of new ecclesiastical parishes now stand upon the same footing in that respect as those of ancient parishes; and where a portion of an ancient parish has been formed into a new ecclesiastical parish, residents in the new parish are not deemed for those purposes to be within the old parish.[ ] moreover, if, besides the church, there is a public chapel in a parish, and the bishop thinks it necessary so to do for the convenience of the inhabitants, he may grant a licence, with such qualifications as he may deem fit, for banns and marriages in the chapel, in the case of residence within a district specified in the licence; subject to an appeal on the part of either patron or incumbent to the archbishop of the province, who may confirm, revoke, or vary the licence. but the licence will not preclude residents in the district from having their banns published and marriages solemnised in the parish church, if they prefer this course.[ ] in the case of parishes having no parish church in which divine service is usually performed every sunday, and in the case of extra-parochial places, the church or chapel of an adjoining parish or chapel may be resorted to for banns and marriages.[ ] but the bishop may license for banns and marriages in extra-parochial places and chapelries any church or chapel situate within their limits.[ ] where the church of a parish is pulled down or disused for divine service owing to being rebuilt or repaired, the publication of banns and solemnisation of marriages may take place in any building within the parish licensed by the bishop for the performance of divine service during the rebuilding or repair of the church, or if there is no such building, then in the church of an adjoining parish; or, if there is a consecrated chapel within the parish, the bishop may direct that they shall take place within that chapel, and may, with the consent of the incumbent, give directions respecting the fees. licences for marriages in the church of the parish are to be construed as licences for marriages in the building, church, or chapel in which they may be temporarily solemnised.[ ] where a church has been rebuilt, repaired, or enlarged, and the position of the holy table altered, the validity of marriages and other ceremonies is not affected by the fact, if such is the case, of there having been no re-consecration.[ ] . persons are legally competent to intermarry who (_a_) are of a legal age to contract marriage, (_b_) are of sound mind, (_c_) have not at the time a wife or husband living with whom they have contracted a marriage which is recognised by english law and has not been declared void or been dissolved by a divorce a _vinculo_ recognised by english law, and (_d_) are not within the prohibited degrees of consanguinity or affinity. a christian and a non-christian may be married in church, as well as christians of different denominations; and a clergyman cannot make religion or absence of religion a ground for refusing to perform the ceremony.[ ] . the _minimum_ legal age for contracting marriage is fourteen for the husband and twelve for the wife. in the case of minors the consent of parents or guardians is necessary to their marriage after banns. in the case of the marriage by licence of a minor who is not a widower or widow, the consent to the marriage must be obtained from the father if living, and if he is dead, from some one guardian of the minor (if any). the mother, whether still a widow or remarried, is by law a guardian of the minor unless she has been removed from the office by the high court of justice. if she has been so removed and she remains a widow, and there is no guardian in existence, her consent to the marriage is necessary. where no requisite consenting party is in existence, the marriage may be solemnised without consent. if the father, mother, or other guardian is of unsound mind, or abroad, or unreasonably withholds consent, the lord chancellor or some other chancery judge may on petition make declaration that the marriage is proper, which will supersede the necessity for the consent.[ ] this consent of parents is not required in the case of a minor who is illegitimate.[ ] a clergyman is not punishable who, without notice of the fact, solemnises the marriage of a party under the lawful age, or the marriage of a minor without the consent of parent or guardian; and the marriage of a minor above the marriageable age without such consent, if it actually takes place, is valid, and cannot be made void.[ ] but the marriage of a person under the lawful age can be declared void by him or her on attaining that age. if, however, he or she then consents to the union, no remarriage is necessary.[ ] . the marriage of a person who is a lunatic or of unsound mind is void, since such a person is not capable of consenting to the ceremony.[ ] on the same principle, if a person is forced to go through the ceremony against his or her will, it is no marriage and void.[ ] . where a married person is absent and unheard of for seven years, a presumption of death arises, and the other party marrying again after the lapse of that time is not punishable for bigamy.[ ] but the remarriage will of course be void if it subsequently appears that the absent party was actually alive at the time when it was solemnised. . a divorce decreed by a competent christian tribunal between persons domiciled in the country where it is obtained is regarded as valid in england, if valid according to the law of that country.[ ] but if a person domiciled in england obtains a divorce in another country to which he has gone for the purpose, that divorce will not be recognised as legal here.[ ] if persons obtain a dissolution of marriage by a judicial decree in england, the divorce act, , authorises them to marry again after the time for appealing against the decree has expired, or after the marriage has, on appeal, been declared to be dissolved, in like manner as if the marriage had been dissolved by death. a person divorced in england has, therefore, a legal right to require his or her banns to be published and marriage to be solemnised in church in like manner as if he or she were a widower or widow, with the exception that no clergyman is by law bound to marry a person whose marriage has been dissolved on account of the person's own adultery; but in case of his refusal to do so he must permit any other clergyman willing to perform the ceremony to use his church for the purpose.[ ] in the banns in such cases the person has to be described, if at all (see § ), as "unmarried." in the case of a person whose divorce elsewhere than in england is valid according to english law, it would seem that although he or she can legally remarry in england, yet a clergyman is under no legal obligation to publish the banns or perform the ceremony or permit it to be performed in his church. the practice as to granting marriage licences in the case of divorced persons varies in different dioceses.[ ] . although marriages duly solemnised in england according to english law between foreigners, or between a foreigner and a british subject, are valid throughout the british empire, these marriages will not necessarily be valid in countries to which the foreigners belong, unless the legal requirements of these countries are complied with. under arrangements made with france and belgium, the french consul and the belgian minister respectively will, on application, ascertain in any particular case that the legal requirements of their country have been complied with, and will furnish a certificate to that effect. no similar arrangement has as yet been made with any other foreign state. the following instructions have therefore been issued in the diocese of london, and may, with advantage, be observed elsewhere, namely:--(_a_) where both parties to an intended marriage are foreigners, or one of them is a foreigner of any nationality except french or belgian, or is a foreigner without a permanent residence in england, the marriage should in all cases be by licence, which will only be granted if the chancellor of the diocese is satisfied that the law of the country, to which the foreigners concerned belong, is complied with.[ ] (_b_) where a foreigner of french or belgian nationality, whose permanent residence is in england, is a party to an intended marriage after banns with an english subject, the incumbent of the parish should require before solemnising it the production of a certificate from the french consul or belgian minister, as the case may be, that all the legal requirements necessary to the recognition of the marriage as valid in france or belgium have been complied with. . marriages of persons within the prohibited degrees of kindred and affinity specified in the table set forth by the authority of archbishop parker in the year are unlawful and void.[ ] the degrees include illegitimate as well as legitimate relatives and connections; but an illegitimate _liaison_ with a woman or a man does not make her or him a wife or a husband within the meaning of the table. thus a man cannot marry his wife's illegitimate daughter or her half-sister, whether legitimate or illegitimate; but he can marry the daughter or sister of a woman with whom he has had unlawful connection.[ ] . under the marriage act, , which slightly differs in language from canon and the rubrics in the prayer book, banns must be published on three sundays (without an alternative of holy-days), and after the second lesson (instead of after the nicene creed) in morning service or in evening service if there is no morning service,[ ] according to the form of words prescribed by the rubric. a slight deviation from this form will not invalidate the publication. a clergyman is not obliged to publish banns, unless the parties, at least seven days before the time required for the first publication, deliver or cause to be delivered to him a notice in writing bearing the date of the delivery, and setting forth their true christian names and surnames, and the house or houses of their respective abodes within the parish or other district over which his authority as to banns and marriages extends, and the time during which they have respectively dwelt or lodged therein.[ ] it is not imperative upon him to require this seven days' notice, nor is he punishable for publishing the banns without it, or previously to its expiration. but he is liable to ecclesiastical censure if he dispenses with it, and, without due inquiry, publishes banns between persons not entitled to have their banns published, and then proceeds to marry such persons, even though his action was not knowing and wilful.[ ] where the parties dwell in different parishes or other definite districts for banns and marriages, the banns must be published in the church or chapel of both parishes or districts.[ ] if one of the parties resides in scotland, his or her banns may be published there according to scottish law or custom, in contemplation of a marriage in england, after publication of the banns of the other party here.[ ] and if one of the parties resides in england and the other in ireland, the banns may be published in each country according to the law or custom prevailing there, although it may differ from the manner required in that part of the united kingdom in which the marriage is to be solemnised.[ ] a person dwells where he eats, drinks, and sleeps. he can only be said to dwell at the place where he temporarily sojourns if he has no permanent abode. but he may dwell in more than one place, if he has a permanent abode in each.[ ] the true christian names and surnames, in which the banns are to be published, mean the full christian name and surname of each party, and the omission of part of the christian name, no less than the substitution of a wrong name, by the fraud of both parties, will render the marriage void. but where a party has abandoned his baptismal and family names and is known by repute by different names, his banns ought to be published in his acquired names; and publication in his original names, if intended to deceive, will be improper, and will invalidate the marriage.[ ] there is no legal requirement that the status of the parties should be published, and the description of the woman as a widow, when she was, in fact, a spinster, is not an undue publication.[ ] the banns must be published from a book and not from loose papers, and after publication must be signed by the officiating minister or some person under his direction.[ ] if, in the case of a minor, a parent or guardian openly forbids the banns at the time of their publication by declaring or causing to be declared his or her dissent to the marriage, the publication will be void, and no marriage can be lawfully solemnised upon it.[ ] no other forbidding of the banns will render the publication void. it can, at the utmost, only furnish a ground for caution and inquiry as to further proceeding with the matter. . on the production and delivery of a certificate of the superintendent registrar of births, deaths, and marriages of the district in which a church or chapel is situate, that due notice of an intended marriage in that church or chapel has been given, and also, if one of the parties resides in another district, of a similar certificate of the superintendent registrar of that district, the marriage may be solemnised in such church or chapel, with the consent of the minister thereof, but not otherwise, in like manner as after due publication of banns. but a superintendent registrar cannot grant a licence for a marriage in a church or chapel of the church of england.[ ] . a marriage may be solemnised, without banns or registrar's certificate, under a licence of the bishop of the diocese or the archbishop of canterbury for that purpose. a bishop's licence is granted by the chancellor of the diocese, through the diocesan registry, for the marriage of the parties in the church or chapelry of the parish in which one of the parties has dwelt for fifteen days immediately preceding. the licence, and also the form of affidavit leading to it, together with all information on the subject, can be obtained either direct from the diocesan registry or through a clergyman who is a chancellor's surrogate. before it is issued, an affidavit must be made before a surrogate by one of the parties to the intended marriage that there is no legal impediment to it, and that one of the parties has for fifteen days immediately preceding the issue of the licence had his or her usual place of abode in the parish or other district for banns and marriages, in the church or chapel of which the marriage is to be solemnised.[ ] an ordinary or special licence can also be granted by the archbishop of canterbury. his ordinary licence is issued under the same conditions and has the same effect as a bishop's licence. but his special licence may authorise the parties to be married in any church and at any time, irrespectively of their places of residence and of the canonical hours. on production of a licence for a marriage in a specified church, it is the duty of the incumbent to perform the ceremony, unless he knows that the licence has been fraudulently obtained; and it is not his business to ascertain that one of the parties has actually resided within the parish.[ ] the requirement as to correctness of the names of the parties is not so strict in the case of a licence as in the case of banns; and the suppression in the affidavit leading to the licence of part of the name of one of the parties for the purpose of concealment has been held not to invalidate the marriage.[ ] the grant of a marriage licence is a matter of favour and not of right.[ ] . the marriage must be solemnised in the church or chapel, or one of the churches or chapels, in which the banns have been published, or in the church or chapel named in the registrar's certificate or in the marriage licence, within due time after the requisite preliminary formalities have been gone through. it should not be solemnised on the same day as the last publication of the banns; but if it does not take place within three months after the complete publication of banns or grant of the licence (as the case may be), it is not to be solemnised until after the banns have been duly republished on three sundays, or a new licence has been duly obtained.[ ] similarly if a marriage intended to be sanctioned by a registrar's certificate does not take place within three calendar months after notice has been entered by the superintendent registrar, it is not to be solemnised until a new notice has been given and the entry duly made, and a certificate thereof given, as required by the marriage act, .[ ] except under the authority of a special licence, it must be solemnised between the hours of eight in the forenoon and three in the afternoon, but the incumbent may appoint his own time for it within those hours.[ ] it may be solemnised by either a priest or a deacon,[ ] but a clergyman cannot solemnise his own marriage.[ ] by canon and statute it must not take place in a private place, but in a church or chapel, and in time of divine service, and before at least two witnesses. but the canonical regulation as to marriages being solemnised during divine service is now, by custom, universally disregarded; and even a marriage celebrated in the vestry of a church and in the presence of one witness only has been held to be valid, though such a precedent ought not to be followed.[ ] a clergyman who knowingly and wilfully solemnises a marriage elsewhere than in a church or chapel where banns may be lawfully published, or at any other time than between eight in the forenoon and three in the afternoon (unless by special licence from the archbishop of canterbury), or without due publication of banns, unless under a marriage licence or on a registrar's certificate, is guilty of felony and punishable accordingly.[ ] . on production of a certificate of marriage at a registry office, and payment of the customary fees (if any), a clergyman may, if he sees fit, read or celebrate the marriage service over the parties in his church; but this is not to invalidate the previous marriage, nor is the reading or celebration to be entered as a marriage in the parish register.[ ] there have, however, been cases of a subsequent marriage in church, not only after a marriage before a registrar, but also after a marriage out of england, the wife's maiden name being used on the occasion.[ ] . the right to fees for publication of banns, giving a certificate of banns where the marriage takes place in the other church in which they were published, and the marriage itself, can only depend in ancient parishes upon custom, presumed to date from time immemorial. a claim to a marriage fee of s. ( s. for the rector and s. for the clerk) was disallowed on the ground that the amount was unreasonably large and could not have been paid in the time of richard i.[ ] in new ecclesiastical parishes a claim for these fees can only be enforced if they have been set out in a table of fees settled by the church building commissioners or their successors, the ecclesiastical commissioners, under the church building act, , or by the chancellor of the diocese under the new parishes acts, and .[ ] . marriage register books in duplicate are furnished by the registrar-general to the incumbent of every church or chapel in which marriages may be solemnised; and it is the duty of every clergyman who solemnises a marriage to enter immediately afterwards in duplicate in two of the books the prescribed particulars of the marriage; and the entry is to be signed by him and by the parties married and by two witnesses. an incumbent is to allow searches in all marriage register books in his custody at a fee of s. for one year and d. for every additional year to which the search extends, and s. d. for a certificate (besides d. for the stamp). in every january and succeeding third month he must send in to the superintendent registrar of births, deaths, and marriages for the district, either directly or through a subordinate registrar, a certified copy of all the entries made by him since his last return, and will receive d. for every such entry. and whenever a register book is filled, he is to send one copy to the same registrar and keep the other copy with the registers of baptisms and burials of his parish or chapelry.[ ] . if persons residing in the parish present themselves for holy communion as married, a clergyman has no right, (_a_) in the absence of any ground for suspicion to the contrary, to demand proof of their marriage before admitting them, or (_b_) to refuse to admit them on a mere suspicion that they are not married and therefore living in sin. if he refuses them communion, he must be prepared to show either (_a_) that they actually are not married, or (_b_) that he had good grounds for believing this to be the case. he is bound to recognise as man and wife persons who have been duly married according to the law affecting them at the time of the marriage, whether ecclesiastically or civilly, and whether in this country or elsewhere; provided that the law was christian and monogamous; for a marriage according to a law, custom, or rite which contemplates polygamous unions is void in our law.[ ] if there is any doubt as to the validity of their marriage, he will always be on the safe side in adopting the affirmative view and acting upon the assumption of their being validly married. in the absence of evidence to the contrary, the law will presume a valid marriage from the fact of long reputation and cohabitation as man and wife, without actual proof of the ceremony having taken place.[ ] a marriage is legally valid if performed according to the mode and with the formalities required by the law of the place where it is solemnised.[ ] but the capacity of the parties to contract marriage is governed by the law of their domicile; and therefore persons domiciled in this country between whom a marriage would be illegal here, cannot contract a lawful marriage by going for the purpose into another country where such a marriage is legal, and there going through the ceremony.[ ] under the english common law a marriage between british subjects in a foreign country or on board ship, where no statute law binding upon them imposes any further formalities, is recognised as valid in this country if solemnised without banns or licence in the presence of a clergyman of the church of england, whether priest or deacon (not being one of the parties to it).[ ] a marriage between british subjects may also be solemnised outside the united kingdom in accordance with the regulations of the foreign marriage act, ( & vict. c. ), before a person authorised thereunder to act as a marriage officer, as it might have been before that act under the acts thereby repealed. footnotes [ ] davis _v._ black ( ) q. b. ; reg. _v._ james ( ) c. & k. . [ ] ( ) geo. , c. , ss. , . [ ] _ib._ s. . [ ] ( ) geo. , c. , ss. - ; ( ) geo. , c. , ss. , , ; ( ) geo. & will. , c. , s. ; ( ) & vict. c. , s. ; ( ) & vict. c. ; ( ) & vict. c. , s. ; ( ) & vict. c. , s. ; tuckniss _v._ alexander ( ) l. j. ch. ; w. r. ; fuller _v._ alford ( ) q. b. d. . [ ] ( ) & will. , c. , ss. - ; ( ) will. & vict. c. , ss. , ; _re_ st. george's proprietary chapel ( ) tristr. cons. judg. . [ ] ( ) geo. , c. , s. . [ ] _ib._ ss. - ; ( ) vict. c. , s. ; ( ) & vict. c. . [ ] ( ) geo. , c. , s. ; ( ) geo. , c. ; ( ) geo. & will. , c. , s. . [ ] ( ) & vict. c. , s. . [ ] jones _v._ robinson ( ) phill. ; reg. _v._ james ( ) c. & k. . [ ] canons , , ; ( ) geo. , c. , ss. , , , read with ( ) & vict. c. , ss. , , , . [ ] horner _v._ liddiard ( ) hag. cons. . [ ] ( ) geo. , c. , ss. , . [ ] co. litt. a. b. n. ( ). [ ] ( ) geo. , c. . a lunatic cannot marry until he has been judicially declared sane; _ib._ [ ] scott _v._ sebright ( ) p. d. ; geary, - . [ ] ( ) & vict. c. , s. . [ ] harvey _v._ farnie ( ) app. ca. . [ ] dolphin _v._ robins ( ) h. l. c. ; briggs _v._ briggs ( ) p. d. . [ ] ( ) & vict. c. , ss. , ; ( ) & vict. c. . s. . [ ] as to marriage licences, see § below. [ ] for an epitome of the foreign requirements for the validity of marriages in europe and north and south america, see a summary of foreign marriage law, by canon glendinning nash, , published by the s.p.c.k., price d. [ ] ( ) hen. , c. ; canon ; ( ) & will. , c. . as to the table, see co. litt. a. n. ( ); co. inst. ; gibs. cod. - ; burn, - ; cardwell's documentary annals of the church of england, vol. i. pp. - (no. lxiv); sherwood _v._ ray ( ) moo. p. c. , note on pp. - . [ ] r. _v._ brighton ( ) b. & sm. ; wing _v._ taylor ( ) sw. & tr. . [ ] geo. , c. , s. ; wynn _v._ davies ( ) curt. , at p. . [ ] ( ) geo. , c. , s. . [ ] canon ; ( ) geo. , c. , s. ; priestley _v._ lamb ( ) ves. ; nicholson _v._ squire ( ) ves. ; warter _v._ yorke ( ) ves. ; wynn _v._ davies ( ) curt. , at pp. , . [ ] ( ) geo. , c. , s. ; ( ) will. & vict. c. , s. ; ( ) & vict. c. . [ ] ( ) & vict. c. . [ ] ( ) & vict. c. . [ ] macdougall _v._ paterson ( ) c. b. ; l. j. c. p. ; att.-gen. _v._ mclean ( ) h. & c. ; alexander _v._ jones ( ) l. r. ex. ; l. j. ex. . [ ] tongue _v._ allen ( ) curt. ; ( ) moo. p. c. ; midgley _v._ wood ( ) l. j. p. m. & a. ; r. _v._ billingshurst ( ) m. & s. . where the woman was an illegitimate child, and had the banns published in the name of her mother, which she had never in fact borne, sir john dodson, in adjudging the marriage void, said that he had some doubt whether, in the case of an illegitimate child, the publication of the banns in the name of its mother, instead of the name of notoriety and repute, would necessarily be such an undue publication as would nullify the marriage. no doubt the name which a person under such circumstances had fully acquired was that in which the publication of banns should take place; but there might be a case in which, without fraudulent intent, and from an innocent misapprehension of what was correct, the name of the mother might be used instead of that subsequently acquired; tooth _v._ barrow ( ) eccl. & adm. , at p. . [ ] mayhew _v._ mayhew ( ) m. & s. . [ ] ( ) geo. , c. , s. . [ ] _ib._ s. . [ ] ( ) & will. , c. , ss. , , , ; ( ) will. & vict. c. , s. ; ( ) & vict. c. , s. . [ ] canons - ; ( ) geo. , c. , s. . [ ] tuckness _v._ alexander ( ) dr. & sm. ; l. j. ch. . [ ] bevan _v._ m'mahon ( ) l. j. p. m. & a. . [ ] prince of capua _v._ count de ludolf ( ) l. j. p. m. & a. (n.). [ ] ( ) geo. , c. , ss. , . it is safest to construe this period as lunar months, _i.e._ twelve weeks; see bl. comm. ; lacon _v._ hooper ( ) t. r. . [ ] & will. , c. , s. . [ ] ( ) & vict. c. ; canons of . [ ] wats. ch. xiv. p. ; reg. _v._ millis ( ) cl. & f. , , . [ ] beamish _v._ beamish ( ) h. l. c. . [ ] canon ; ( ) geo. , c. , s. ; wing _v._ taylor ( ) sw. & tr. ; jur. n. s. . [ ] ( ) geo. , c. , s. . [ ] ( ) & vict. c. , s. . [ ] phill. eccl. law. ; piers _v._ piers ( ) h. l. c. ; jur. . [ ] bryant _v._ foot ( ) l. r. q. b. ; aff. ( ) _ib._ . [ ] geo. , c. , s. ; & vict. c. , s. ; & vict. c. , ss. , . [ ] ( ) & will. . c. , ss. , , , , - , sch. (c); ( ) will. & vict. c. , ss. - . [ ] hyde _v._ hyde ( ) l. r. p. & d. ; _re_ bethell ( ) ch. d. . [ ] goodman _v._ goodman ( ) l. j. ch. ; the breadalbane case ( ) l. r. h. l. sc. ; geary, - . [ ] ruding _v._ smith ( ) hag. cons. , at pp. , . [ ] brook _v._ brook ( ) h. l. c. ; l. t. n. s. . [ ] reg. _v._ millis ( ) cl. & f. ; jur. ; culling _v._ culling ( ) p. . chapter vii burial . every person dying in this country and not within the exceptions mentioned below (§ ) has a common law right to be buried in the churchyard or burial ground of the parish in which he dies, by the clergyman of the parish.[ ] canon prescribes that besides the passing bell (see ch. viii. § below) there shall be rung after a person's death no more than one short peal, and one other before the burial and one other after the burial. if he dies out of his own parish, the persons who are responsible for his burial may claim that he be buried in his own parish.[ ] if the clergyman or the persons having charge of the ground refuse interment, the ecclesiastical court is the proper tribunal to give relief, and it will compel the interment. the high court would also compel it by mandamus.[ ] but a parishioner has no right to be buried at a particular hour or (except in the case of a private vault or a prescriptive right to a special spot) in a particular part of the churchyard. the incumbent can fix his own time for the funeral, and he and the churchwardens can exercise a discretion as to where each body shall be buried.[ ] and neither incumbent nor churchwardens, nor both together, can make a valid sale or grant to individuals or families of a grave-space in the churchyard for their use in perpetuity. any such attempted transaction is worthless in point of law. an exclusive right of burial in not more than one-sixth part of land given as an addition to a churchyard may be reserved by the donor to himself, his heirs, and assigns in perpetuity,[ ] but with this exception no such exclusive right can be acquired in a spot within a churchyard except by faculty.[ ] a person not a parishioner and not dying within the parish can only be buried in the parish churchyard, otherwise than in a private vault, by the favour and with the permission of the incumbent and churchwardens,[ ] or under a faculty obtained from the ecclesiastical courts.[ ] . as regards the burial of bodies cast up on the shore of the sea or of any tidal or navigable water, the rights and duties are the same as if they were the bodies of parishioners of the parish in which they were cast up.[ ] . persons are excluded from a right to christian burial who have not been baptized, or die excommunicate, or have committed suicide and been found _felo-de-se_.[ ] under the interments (felo de se) act, ,[ ] the remains of a person on whom a verdict of _felo de se_ has been passed are to be buried under the direction of the coroner in the ground in which they would be rightfully interred if there had been no such verdict, and in one of the ways prescribed or authorised by the burial laws amendment act, .[ ] a clergyman has no right to refuse interment with the full burial service to the child of a dissenter,[ ] or a person who has only received lay baptism,[ ] or has died in a state of intoxication.[ ] but a refusal to bury is no offence if the clergyman has not received convenient warning of the intended interment.[ ] . the incumbent may refuse to allow a corpse to be carried into church;[ ] and, in the absence of a faculty or prescriptive right, the absolute discretion as to permitting or refusing burial under the church itself rests, in the case of an ancient parish church, with the rector, whether lay or spiritual, as regards the chancel, and with the incumbent as regards the rest of the church.[ ] this discretion, for sanitary reasons, is now practically in abeyance. and no burial is permissible beneath a church built under the church building acts or within twenty feet of its external walls.[ ] . a clergyman cannot make the burial of a parishioner conditional on the payment of a fee.[ ] and, in cases not provided for by some local or general statute or by a legally established table of fees, any subsequent right to recover a fee must depend on the immemorial custom of the particular parish.[ ] but on the burial of non-parishioners special fees may be previously stipulated for;[ ] and the churchwardens may by custom have a right to a portion of the fees for the benefit of the parish or the poor.[ ] in the absence of such custom it is reasonable that part of these fees should go to the churchwardens for the benefit of the parish; since the burial of non-parishioners diminishes the space available for the interment of parishioners. except where there is an ancient custom to that effect or under the provisions of the burial or cemetery acts, no fee is payable to the incumbent of a parish in which a person dies who is buried in another parish.[ ] the church building act, , enabled the church building commissioners and their successors, the ecclesiastical commissioners, to fix a table of burial and other fees for a parish with the consent of the bishop and the vestry, and also for any extra parochial place or district chapelry or parochial chapelry,[ ] but this power is not now usually exercised. the chancellor of the diocese is empowered and required to fix the fees for burials and other offices in the churchyards and churches of new parishes,[ ] and, sitting as ordinary in the consistory court, he can prescribe the fees to be demanded in an ancient parish for any matter connected with burial which is in excess of the bare common law right of burial, as, for instance, for the privilege of being buried in a brick vault or in an iron coffin.[ ] where a new ecclesiastical parish is formed, and has a churchyard or burial ground, either of its own, or in which its residents have a right to be interred, whether provided ecclesiastically or by a burial authority, it becomes for the purposes of burial a distinct parish from the mother parish, so that the residents in each have no rights of burial in the churchyard or burial ground of the other, and the incumbent of the mother parish has no right to fees in respect of interments in the churchyard or burial ground of the new parish.[ ] . a clergyman may use the burial service in unconsecrated ground,[ ] and in cases where the burial service is not permissible, or where the persons responsible for the burial request it, he may use instead a special form prescribed or approved by the ordinary.[ ] on receiving forty-eight hours' previous notice in writing to that effect from a relative, friend, or legal representative of a deceased person entitled to burial in a churchyard or burial ground, the incumbent of the parish or chaplain of the ground must permit the interment of the deceased without the performance of the rites of the church of england, and either without any service at all or with some other christian and orderly religious service conducted by a person or persons not in holy orders of the church of england. the notice must state the proposed day and hour of the interment, which may be varied if inconvenient to the person receiving the notice; and he may, on stated grounds, object altogether to its taking place on a sunday, good friday, or christmas day. on every such interment the incumbent or chaplain is entitled to the same fee, if any, as he would have received if it had been accompanied by the burial service.[ ] . when a clergyman performs a funeral service, the certificate of the registrar of having registered or received notice of the death, or (where there has been a coroner's inquest) the order of the coroner authorising the burial, is to be delivered to him by the person who obtained it; and a clergyman who performs a funeral service without the delivery of such a certificate or order must, within seven days, give written notice of the fact to the registrar of births and deaths for the sub-district in which the death took place; and if he fails to do so, he is liable to a penalty not exceeding £ . in the case of a burial under the act of (see § above) the certificate or order is to be delivered to the relative or friend or legal representative of the deceased who has charge of or is responsible for the burial; and a similar obligation, under a similar penalty, lies on him of giving notice in case no certificate or order is delivered to him.[ ] . in the case of interments in cemeteries established by special acts which incorporate the cemeteries clauses consolidation act, ,[ ] or contain similar provisions, the incumbent and clerk of the ecclesiastical parish from which any bodies are removed for burial are entitled to receive such fees as are prescribed by the special act. they are to be accounted for and paid by the cemetery company half-yearly.[ ] . owing to the insufficiency of existing burial accommodation and the importance of closing churchyards in the centres of large towns, a series of burial acts, together with an act known as the public health (interments) act, ,[ ] have been passed from onwards, enabling burial boards and other local authorities to provide burial grounds. the acts contemplate that parts of these grounds shall be consecrated and parts remain unconsecrated, and the earlier acts contemplated the erection of chapels on each of these parts. but questions having arisen as to the amount of discretion possessed by a local burial authority with regard to procuring the consecration of any and what portion of a burial ground acquired by them, an act was passed in which, after authorising burial authorities to apply to the bishop for the consecration of any part of their burial ground approved by the home secretary, added that if a burial authority do not so apply within a reasonable time after being requested to apply, and the home secretary is satisfied that a reasonable number of persons within the burial district desire that a portion of the ground be consecrated, and that the consecration fees have been paid or reasonably secured, he may himself apply to the bishop for the consecration of an approved portion of the ground, and the bishop may consecrate it, and the burial authority will be bound to make the necessary arrangements for the consecration.[ ] and with regard to chapels, burial authorities are empowered to erect at their own cost, on any part of their burial ground not consecrated or set apart for a particular denomination, a chapel for the joint common use of all denominations. they may also, at the request and cost of residents within the burial district of a particular denomination, erect and maintain a chapel for the funeral services of that denomination on ground appropriated for their use. if a burial authority fail to do this within a reasonable time after the request has been made and the cost has been tendered or adequately secured, the home secretary may, if he thinks fit, order and compel the burial authority to erect and maintain the chapel or give facilities for its being done.[ ] where a burial ground has been provided by a local authority under the burial acts, the incumbents, clerks and sextons, of the ecclesiastical parishes for which the ground has been provided, had, in respect of the burial of inhabitants of those parishes in the consecrated part of the ground, the same right to fees as they had in the churchyard for which the ground is substituted, or would have had in that churchyard if it had been the parochial burying place for their respective parishes.[ ] and the burial authority were empowered to sell rights of burial in vaults and permit the erection of monuments, with a reservation of such fees to the incumbent of each parish as he would have been entitled to in the old churchyard, or as might be fixed by the vestry of the parish with the approval of the bishop.[ ] but the law as to fees in these burial grounds was considerably modified by the burial act, . under this act (i.) burial authorities are to submit to the home secretary for his approval, either with or without modification, a table of fees to be received by them (of the same amount in the consecrated and unconsecrated parts of their burial ground) in respect of services rendered by any minister of religion or sexton; and if an authority fails to submit a table, the home secretary may himself make one. the fees are to be collected by and payable to the burial authority with their other fees, and are to be paid over to the minister or sexton in such manner as may be agreed upon, or as may be directed by the home secretary in default of agreement. (ii.) in the ground of a burial authority no fee in respect of any right of exclusive burial or the erection of a monument or any matter other than services rendered by the incumbent[ ] is to be payable either to the incumbent or to the churchwardens, or any trustees or other persons to which fees were previously payable by law or custom for any parochial purpose or the discharge of any debt or liability, with the following exceptions, namely: (_a_) where on th july fees other than for services rendered were paid in a burial ground attached to or used for the purposes of a parish, the like fees are to continue payable during the incumbency of the then incumbent or during fifteen years from that date, whichever is the longer period, or if they were not paid to the incumbent or to a person claiming through him, then during fifteen years from that date; and the burial authority are to collect and pay them in like manner as fees for services rendered; and (_b_) the ecclesiastical commissioners may, at the request and with the approval of the incumbent or other interested person, agree with a burial authority for a periodical or other payment in commutation of the fees other than for services rendered; and where the fees are paid to an incumbent or a person claiming through him, the ecclesiastical commissioners are to apply the commutation money in the first instance in compensating the existing incumbent, and the residue in augmenting the benefice. (iii.) no fee other than fees payable to a sexton for services rendered by him, is to be paid to any clerk or other ecclesiastical officer in respect of interments in the ground of a burial authority; except that a clerk or other ecclesiastical officer who, on th july , was entitled to fees in respect of interments in any such ground, might apply to the burial authority for compensation for their abolition, and they were to pay him such equitable amount of compensation as might be agreed upon or be directed by the home secretary in default of agreement. (iv.) the foregoing provisions extend to cases where an annual sum had been substituted for fees under & vict. c. , s. .[ ] . a body may be cremated instead of being buried;[ ] and a faculty has been granted for the interment of an urn containing the ashes of a cremated body below the floor of a church, in spite of the church and churchyard having been closed for burials under the burial acts.[ ] and there is no reason why, upon the committal of cremated ashes to consecrated ground, the burial service should not be used as fully as over an uncremated body. but the disinterment, for the sake of being cremated, of a body which has been once buried is not permitted.[ ] . a body which has been buried in consecrated ground cannot be disinterred for reinterment elsewhere in consecrated ground, except under the authority of a faculty, which will be granted in proper cases upon the petition of the representatives of the deceased, with the consent of the incumbent and churchwardens and a certificate of the local medical officer of health that the proceeding will not be dangerous from a sanitary point of view.[ ] and except in the case of removal from one consecrated spot for reinterment in another, a body, or the remains of a body, which has been interred in any place of burial may not be removed without the licence of the home secretary and with such precautions as he may prescribe.[ ] footnotes [ ] com. dig. tit. cemetery (b); gilbert _v._ buzzard ( ) hag. cons. ; r. _v._ coleridge ( ) b. & ald. ; r. _v._ stewart ( ) a. & e. , . [ ] cripps, . [ ] canon ; ex pte. blackmore ( ) b. & ad. ; r. _v._ coleridge, _ubi sup._ [ ] ex pte. blackmore ( ) b. & ad. ; fryer _v._ johnson ( ) wils. . [ ] ( ) & vict. c. , ss. - ; ( ) & vict. c. . [ ] the churchyard is not merely the property of a single departed generation, but is also the common property of the living and of generations yet unborn, and is subject only to temporary appropriations. an exclusive title to a portion of it is sometimes given by faculty to some family or individual possessing a good claim to be favoured by such a distinction. but even a bricked grave, in the absence of a faculty, is an aggression upon the common interests of the parishioners, and carries the pretensions of the dead to an extent which violates the rights of the living. per sir w. scott (afterwards lord stowell), gilbert _v._ buzzard ( ) hag. cons. , at p. . [ ] bardin _v._ calcott ( ) hag. cons. , ; littlewood _v._ williams ( ) taun. ; sm. churchw. . [ ] _re_ sargent ( ) p. d. . [ ] ( ) geo. , c. ; ( ) & vict. c. ; sm. churchw. . [ ] canon and prayer book rubric. [ ] & vict. c. . [ ] & vict. c. . [ ] kemp _v._ wickes ( ) phill. . [ ] mastin _v._ escott ( ) curt. ; aff. ( ) moo. p. c. ; jur. . [ ] cooper _v._ dodd ( ) jur. . [ ] titchmarsh _v._ chapman ( ) jur. ; ( ) _ib._ , ; ( ) _ib._ . [ ] burn, . [ ] frances _v._ ley ( ) cro. jac. . but the rector cannot grant the exclusive right to a vault; bryan _v._ whistler ( ) b. & c. . [ ] ( ) geo. , c. , s. . [ ] gilbert _v._ buzzard ( ) hag. cons. . [ ] andrews _v._ cawthorne ( ) willes ; gibs. cod. ; spry _v._ marylebone ( ) curt. , ; spry _v._ gallop ( ) m. & w. ; bryant _v._ foot ( ) l. j. q. b. . [ ] nevill _v._ bridger ( ) l. r. ex. ; l. j. ex. . [ ] littlewood _v._ williams ( ) taun. ; marsh. . [ ] gibs. cod. . [ ] geo. , c. , s. . [ ] ( ) & vict. c. , s. ; see ( ) & vict. c. , ss. , . [ ] gilbert _v._ buzzard ( ) hag. cons. . [ ] cronshaw _v._ wigan burial board ( ) l. r. q. b ; hughes _v._ lloyd ( ) q. b. d. . [ ] burial laws amendment act, ( & vict. c. ), s. . [ ] _ib._ s. . [ ] burial laws amendment act, ( & vict. c. ), ss. - . [ ] ( ) & vict. c. , ss. , ; ( ) & vict. c. , s. ; ( ) & vict. c. . [ ] & vict. c. . [ ] _ib._ sects. - ; vaughan _v._ south metropolitan cemetery co. ( ) j. & h. ; l. j. ch. ; bowyer _v._ stantial ( ) ex. d. . [ ] & vict. c. . [ ] & vict. c. (burial), s. . [ ] & vict. c. (burial), s. . [ ] ( ) & vict. c. , s. ; ( ) & vict. c. , s. ; st. margaret's rochester burial board _v._ thompson ( ) l. r. c. p. ; gell _v._ mayor of birmingham ( ) l. t. n. s. ; day _v._ barnsley burial board ( ) n. r. ; cronshaw _v._ wigan burial board ( ) l. r. q. b. ; l. j. q. b. ; ormerod _v._ blackburn burial board ( ) w. r. ; white _v._ norwood burial board ( ) q. b. d. ; stewart _v._ west derby burial board ( ) ch. d. ; wood _v._ headingley-cum-burley burial board ( ) q. b. . [ ] ( ) & vict. c. , s. . [ ] this will include services rendered by a clergyman acting for the incumbent, as well as by the incumbent himself. see & vict. c. , s. . [ ] & vict. c. , s. . [ ] reg. _v._ price ( ) q. b. d. . [ ] _re_ kerr ( ) p. . [ ] _re_ dixon ( ) p. . [ ] gibs. cod. ; reg. _v._ sharpe ( ) l. j. m. c. . [ ] ( ) & vict. c. (burial), s. . chapter viii private ministrations . the only private ministration for which detailed directions are provided in the prayer book (other than private baptism, which has been already noticed in ch. v. § ) is the visitation of the sick with the communion of the sick in appropriate cases. with reference to this the th canon directs that when any person is dangerously sick in the parish, the minister or curate having knowledge thereof shall resort to the sick person (if the disease is not known or reasonably suspected to be infectious) to administer instruction and comfort according to the order of the communion book if he be no preacher; or if he be a preacher, then as he shall think most needful and convenient. and when any one is passing out of this life a bell is to be tolled, and the minister shall not then be slack to do his duty. the order for the visitation contains several alternative forms to suit different circumstances. among these is the provision for confession and absolution. the minister is in all cases to examine the sick person whether he repent him truly of his sins and be in charity with all the world, and is to exhort him to forgive from the bottom of his heart all who have offended him. this direction does not contemplate any confession either particular or general, except so far as profession of repentance involves admission of sins to be repented of. but the minister is further to move the sick person to make a special confession of his sins if he feel his conscience troubled with any weighty matter; and after this confession, if he humbly and heartily desires it, the priest is to pronounce a prescribed form of absolution. it appears, therefore, that confession is only contemplated if the sick person's conscience is troubled with some weighty matter, and absolution is only to be pronounced if (_a_) there has been confession, and (_b_) the sick person desires it. communion of the sick may take place either along with or apart from the visitation. in either case there must be three, or at least two, in addition to the minister, to communicate with him, except in time of plague or similar contagious illness, when the minister may communicate with the sick person alone. in every case he must receive the communion himself first, and then administer to the sick person's friends, and to the sick person last. after a special collect, epistle, and gospel, the order of holy communion is to be followed from the words "ye that do truly and earnestly repent you of your sins" onwards. the church of england at present permits no administration of any reserved sacrament to the sick nor any further abbreviation of the service.[ ] if the sick person is too ill to receive the communion in the prescribed way, or is otherwise impeded, he is to be instructed that, without doing so with his mouth, he eats and drinks the body and blood of christ to his soul's health if he truly repents of his sins, and steadfastly and thankfully believes in the redemption wrought by christ's death on the cross for him. . the prayer book requires the incumbent of every parish to bring or certify in writing to the bishop all persons within the parish whom he thinks fit to be presented to the bishop for confirmation. no special mode of preparation for that rite is prescribed beyond public instruction in the catechism (see above, ch. v. § ). but this _minimum_ is rightly in the present day not considered sufficient. special confirmation classes and private interviews with intending confirmees are now almost universal, and form one of the most responsible and important parts of the pastoral duties of the clergy. . besides the ordinary occasions of confirmation and sickness, the minister may be called upon to give spiritual advice or comfort to persons whom he knows to be living evil lives or to be at enmity with their neighbours, or who are troubled in conscience about coming to holy communion, or generally about their spiritual state. in the first prayer book of edward vi. the exhortation to be said in giving previous notice of holy communion where the people were negligent in coming to it, contained injunctions to reconciliation and charity among neighbours and restitution of wrongs, without which "neither the absolution of the priest can anything avail them nor the receiving of this holy sacrament doth anything but increase their damnation." and it then referred to confession and absolution in these terms:-- "and if there be any of you whose conscience is troubled and grieved in anything lacking comfort or counsel, let him come to me or to some other discreet and learned priest taught in the law of god, and confess and open his sin and grief secretly, that he may receive such ghostly counsel, advice, and comfort that his conscience may be relieved, and that of us (as of the ministers of god and of the church) he may receive comfort and absolution to the satisfaction of his mind and avoiding of all scruple and doubtfulness: requiring such as shall be satisfied with a general confession not to be offended with them that do use, to their further satisfying, the auricular and secret confession to the priest; nor those also which think needful or convenient, for the quietness of their own consciences, particularly to open their sins to the priest, to be offended with them that are satisfied with their humble confession to god and the general confession to the church: but in all things to follow and keep the rule of charity, and every man to be satisfied with his own conscience, not judging other men's minds or consciences where as he hath no warrant of god's word to the same." in the present prayer book, all allusion to "auricular" confession is omitted. the minister simply exhorts that if any person cannot by his own confession to god, with full purpose of amendment of life and by reconciliation with any neighbours whom he may have offended, quiet his own conscience with a view to receiving holy communion, he should come to the incumbent of the parish, or to some other discreet and learned minister of god's word, and open his grief, "that by the ministry of god's holy word he may receive the benefit of absolution together with ghostly counsel and advice to the quieting of his conscience and avoiding of all scruple and doubtfulness." the procedure is clearly contemplated as exceptional, as respects (_a_) the persons who have recourse to it, (_b_) the occasions on which they do so, and (_c_) the sins or stumbling-blocks on which they consult the minister. . in addition to these more formal ministrations, a diligent clergyman will pay frequent visits to his parishioners, and hold interviews or correspondence with them on any questions of intellectual perplexity or of practical difficulty in their daily life in reference to which they may desire his counsel or assistance; but his action in these matters is not regulated by law, and lies outside the scope of the present treatise. footnote [ ] archbishops' hearing at lambeth ( ) _times_, may . the prayer book of directed that if on the same day there was a celebration in church, the priest should reserve (at the open communion) so much of the sacrament of the body and blood as should serve the sick person and so many, if any, as should communicate with him, and so soon as convenient after the open communion should go and minister the same first to any appointed to communicate with the sick person, and last of all to the sick person himself, after having previously made the general confession and added the absolution and the comfortable words of scripture as in the communion office; and after the administration he was to say the collect "almighty and everliving god, we most heartily thank," &c. but if the day were not appointed for the open communion, then the curate should come and visit the sick person afore noon and celebrate the holy communion according to the order for the communion of the sick. but these directions were omitted in , and have not since been restored. chapter ix temporalities . the legal possessions and revenues of the benefice of an ancient parish consist of (i.) the church and churchyard (subject to the use of both for the benefit of the people), (ii.) the parsonage house and glebe lands and buildings, (iii.) the tithe, (iv.) any modern endowments, including perpetual annuities granted by the ecclesiastical commissioners, (v.) ordinary dues and offerings, (vi.) mortuaries, and (vii.) fees; and some of these possessions and revenues are also attached to the benefice of a new ecclesiastical parish, which has, moreover, in certain cases a further source of revenue in (viii.) pew-rents. . the incumbent for the time being, whether of an ancient or new parish, has a freehold interest for his life, if he so long remains incumbent, in the possessions of the benefice, and for the purpose of holding them is a corporation sole, with a continuous succession in himself and all future incumbents. as such, he is subject to the general laws respecting corporations, and also to those which regulate the acquisition and holding of landed property for charitable purposes, except so far as the law has made special exemptions in his favour. accordingly, except to the extent expressly permitted by statute, he cannot in his corporate capacity, with perpetual devolution to his successors in office, (_a_) acquire or hold additional landed property without a licence in mortmain or in a manner inconsistent with the provisions of the mortmain and charitable uses acts, and ,[ ] or (_b_) hold landed property upon any trust or for any purpose other than as part of the possessions of the benefice.[ ] . the rights of an incumbent in the church and churchyard differ according as the benefice is an ancient or a new parish, and in the former case according as it is a rectory or a vicarage. the freehold of the whole church in an ancient parish (except where a chapel or aisle or a pew belongs to a private individual), and of the churchyard, belongs to the rector, whether he be the incumbent or not;[ ] and the chancel is repairable by him, except where there is a custom for the parishioners to keep it in repair. his duty in this respect can be enforced by suit in the ecclesiastical court, and the churchwardens cannot safely repair the chancel themselves and then sue him for the cost.[ ] but the incumbent and churchwardens (subject to the rights of the bishop) have the possession and custody of the whole church, including the chancel, and a lay rector cannot interfere with their proper use of it; nor can any person claim to enter it, when not open for divine service, without their permission.[ ] and the incumbent has the paramount right to keep the keys of the church and to control the use of the organ and the ringing of the bells.[ ] but ringers are not liable to criminal proceedings in the ecclesiastical court for ringing the church bells without his consent, unless it was done against his express desire.[ ] moreover, canon contemplates that the churchwardens and sidesmen should have some control over the bellringing; for it enjoins upon them not to allow the bells to be rung superstitiously upon holy-days or eves abrogated by the prayer book, nor at any other times without good cause to be allowed by the incumbent and by themselves. and as regards the churchyard, unless there is a special provision to the contrary in connection with his endowment, a vicar, as against the rector impropriate, is only entitled to the possession of the churchyard for spiritual purposes. the rector has a right to the profits of the soil, and he or his tenants can depasture it with sheep.[ ] but a rector is only at liberty to fell the trees in the churchyard when they are required for the repair of the chancel, or when the body of the church requires repair and he voluntarily allows the parishioners to use them for the purpose.[ ] in new parishes the freehold of the church and churchyard and of the vaults belonging thereto is vested in the incumbent, except where it has been vested in the vestry under a local act and they have not consented to part with it.[ ] neither incumbents nor rectors impropriate are liable in respect of the church and churchyard to rates, nor to contributions towards the expense of making and paving new streets.[ ] so, too, an incumbent was held not liable as owner for expenses incurred by a local authority under a statute in removing a part of the church which had become a dangerous structure.[ ] . the rights of the incumbent are, moreover, qualified and controlled by the rights of the bishop on the one hand and of the parishioners on the other. he has a general authority from the bishop to decide as to allowing or disallowing the erection in the churchyard of tombstones with inscriptions, not being of an unusual character in respect of size or otherwise, as well as glass shades for wreaths and other additions to the contents of the churchyard.[ ] but any person interested may appeal against his decision to the bishop's court, which has power to determine the matter, subject to appeal to the higher tribunals.[ ] he cannot, however, authorise the erection of monuments or tablets in the church itself, nor monuments of abnormal size in the churchyard. these, as well as other additions to or alterations in the church or churchyard, require the sanction of a faculty either from the bishop's consistory court or, if there refused, from the provincial court or the judicial committee of the privy council. a faculty for the purpose will, in proper cases, be granted on the application of the incumbent and churchwardens supported by a resolution of the vestry.[ ] if there is a rector impropriate, his consent will be necessary to any proposed change in the chancel. as already noticed (ch. vii. § above), the incumbent cannot validly, on his own authority, sell grave spaces in perpetuity in the churchyard; and a faculty will not be granted for a vault or space for exclusive burial unless it is clearly improbable that it will inconveniently diminish the available ground for the burial of the parishioners.[ ] it is an offence on the part of any one to remove earth and bones from the churchyard[ ] or to desecrate it in any other way; but a faculty will in a proper case be granted for diverting the course of an ancient footpath through a churchyard when necessary for the enlargement of the church;[ ] and for throwing a portion of a churchyard, which is not required for interments, into a highway.[ ] a wall of a churchyard which has been wilfully pulled down does not require a faculty for its restoration.[ ] a faculty has been granted to secure for ninety-nine years an easement of light and air to the lower windows of an adjoining house through the railings of a churchyard, on payment of an annual rent of £ to the rector for the time being.[ ] where a churchyard or other burial ground has been closed or is no longer used for burials, a faculty may be obtained for laying it out as a garden with footpaths, and removing the tombstones and placing them against the walls of the church or churchyard;[ ] but the erection upon it of any building, except for the purpose of enlarging a church, chapel, or other place of worship, is unlawful, and no faculty can be granted for it.[ ] . every ancient church ought of right to have glebe as well as a manse or parsonage house attached to it.[ ] in a parish where there is an impropriate rectory and a vicarage, glebe may be attached to both or either. rectorial glebe is not liable to pay vicarial tithe to the vicar, nor is vicarial glebe liable to rectorial tithe to the rector.[ ] since the interest of the incumbent in the house of residence and glebe is limited to his life or tenure of the benefice, he cannot deal with them in a way prejudicial to the rights of the patron or of his successors in the incumbency. his powers of selling, exchanging, and leasing are strictly defined by statute. he must not commit what is technically called "waste"--that is to say, any spoiling or destruction of houses, gardens, or other glebe of the benefice, or of the trees thereon, to the detriment of his successors. in cultivating the glebe lands himself, he is not restricted to any particular mode of cultivation, nor accountable to his successors for neglect or mismanagement.[ ] but he must not cut down trees, except so far as they may be required for the repairs of the buildings of the benefice, including the chancel of the church, if he is the rector and is liable to repair it.[ ] he may not on his own account open mines, quarries, or gravel-pits under or upon the glebe land, nor work those which have been unlawfully opened; but he may work those which are already lawfully open;[ ] and even as regards minerals or gravel unlawfully taken by him, if he is not restrained at the time, his successor cannot maintain an action for damage against his representatives after his death.[ ] . in modern times the provision of parsonage houses and of other necessary buildings on glebe lands, and the repairs of chancels liable to be repaired by rectors, have been facilitated by special legislation. in and the gilbert acts were passed,[ ] which, as amended by acts of and ,[ ] enabled an incumbent, with the consent of the bishop and patron, or, during a vacancy in the living, the bishop, to borrow money for the purpose of providing a parsonage house, or rebuilding it in case of its having become ruinous, upon the security of a mortgage of the income of the benefice for thirty-five years. the loan was not to exceed the amount of the gross net income of the benefice, and was to be repayable with interest by thirty yearly instalments. the governors of queen anne's bounty were empowered to lend money for the purposes of the acts; and, in practice, the loans are generally obtained from them. a later statute[ ] extended these provisions to the purchase of land convenient to be used with the parsonage house or existing glebe land, and to the repair of the chancel in cases where it is repairable by the incumbent, and to the building or improving of farm houses or buildings or labourers' dwelling-houses on the glebe land; and subsequent acts have extended the time for repayment of the loans.[ ] another series of enactments has specially sanctioned gifts and bequests for providing parsonage houses and glebe;[ ] and under a third series incumbents are empowered to sell the parsonage houses and glebe lands of benefices, or exchange them for others of greater value or more conveniently situated, and to acquire new parsonage houses and additional glebe lands.[ ] . when an incumbent has a licence from the bishop to reside elsewhere than in the parsonage house, he may let the house, subject to an obligation on the part of the tenant to give up possession on the bishop ordering the incumbent to resume residence therein.[ ] . an incumbent may either himself farm his glebe (see ch. . § above) or let it to tenants. the tenants, however, will have no rights against his successors unless the leases to them are made in accordance with the statutory provisions for the purpose. these provisions enable an incumbent, subject to certain restrictions and with the consent of the bishop and patron, to let the glebe on farming leases for fourteen years or, in some cases, for twenty years,[ ] and under special conditions to grant leases of it for longer periods for building and mining purposes.[ ] . an incumbent, as having an interest in the parsonage house and other buildings of the benefice only during his incumbency, was always bound to keep them in repair for the benefit of his successors.[ ] his exact liability in this respect and also in respect of insuring against fire is now regulated by the ecclesiastical dilapidations act, .[ ] . under this act diocesan surveyors are appointed in every diocese to inspect and report as to requisite repairs and to certify as to their due execution. the proceedings vary according as they take place (_a_) upon a vacancy in the benefice, or (_b_) at other times. but in either case, after they have taken place, a certificate of the diocesan surveyor that the requisite works have been completed in the parsonage house and other buildings (including walls and fences, and, in the case of a rector liable for its repair, the chancel of the church) will (in the absence of wilful waste or of loss or damage by fire where the incumbent has not kept up a sufficient fire insurance) confer exemption from liability for dilapidations, in respect of those buildings, for the next five years. . (_a_) within three months after a benefice has become vacant,[ ] unless the late incumbent was for the time being free, in respect of all the buildings of the benefice, from liability to dilapidations, the diocesan surveyor will inspect the buildings or such of them as have not been included in the exempting certificate, and will report to the bishop what works and what sum, if any, are required for making good the dilapidations. either the new incumbent, or the late incumbent or his executors or administrators, may send to the bishop objections to the report, and the bishop will make an order specifying the repairs to which the late incumbent or his estate is liable and the cost of them. the amount of the cost thereupon becomes a debt from the late incumbent or his estate to the new incumbent and may be recovered as such.[ ] any money received in respect of it is to be paid to the governors of queen anne's bounty, and they, with the consent of the bishop and patron, may lend on the security of the possessions of the benefice, any part of the cost which they have not received from the new incumbent. any additional balance required to make up the total amount of the cost of the repairs must be paid to them by the new incumbent, and in case of non-payment may be raised by sequestration of the profits of the benefice. all the sums received or lent by them are to be placed in the first instance to a dilapidation account. if a vacancy occurs in a benefice between the time of an inspection of the buildings and the certifying of the completion of the works, the former incumbent or his estate will be liable for any portion of the cost of the required repairs remaining unpaid by him, as a debt due to the new incumbent. but the new incumbent, whether he recovers that portion or not, will be under the same liability to pay for the outstanding cost of the repairs as the former incumbent would have been had he continued to hold the benefice; and any amount which he fails to recover from the former incumbent or his estate may with the consent of the bishop and patron be lent to him by the governors of queen anne's bounty on the security of the profits of the benefice. . (_b_) on a written complaint of the archdeacon, the rural dean, or the patron, that the buildings of a benefice are dilapidated, or at the request of the incumbent himself, the bishop, although no vacancy has occurred, may direct the diocesan surveyor to inspect the buildings, unless, in the case of a complaint on the subject, the incumbent is himself ready to put the buildings in proper repair, and the bishop is satisfied that this is actually done. such inspection may also be directed within six months after the sequestration of a benefice, and is to be renewed in every fifth year while the sequestration continues. the surveyor, in like manner as in the case of a vacancy, will report to the bishop the works needed and their probable cost. the incumbent or the sequestrator may state objections to the report, and the bishop will give his decision in writing. if the benefice is not under sequestration, the governors of queen anne's bounty may, with the consent of the bishop and patron, lend on the security of the possessions of the benefice the whole or any part of the cost of the required works. the amount of the loan will be placed to a dilapidation account, and it will be the duty of the incumbent to execute the required works in the prescribed manner. if he fails to do so, the cost may be raised by sequestration of the benefice, and the same course will be taken as if that had occurred before the dilapidation proceedings had commenced. in the case of a benefice under sequestration, the cost of the required works is to be a charge on the income of the benefice which comes into the hands of the sequestrator, and out of that income, after providing for the performance of the duties of the benefice, he is to pay the amount of the cost to the governors of queen anne's bounty, to be placed by them to a dilapidation account. the proceedings are not to be affected by any vacancy occurring in the benefice before the works are executed, except so far as modification may be made in them as the result of the report of the surveyor after his inspection consequent on the vacancy, and except that if the benefice was under sequestration, any unexpended amount standing to the dilapidation account of the sequestrator is to be carried to the dilapidation account of the new incumbent in reduction of the amount payable by the former incumbent or his estate. a sequestrator who spends more on the repairs than is authorised by the surveyor's report is personally liable for the excess.[ ] . when the surveyor certifies from time to time, until the whole of the repairs have been executed, that a certain sum ought to be paid in respect of the required works, such sum is payable out of the money standing to the dilapidation account, and when all this money is exhausted, must be paid by the incumbent himself. it is his duty to cause the repairs to be executed, unless with the consent of the bishop and patron he decides to rebuild or to alter or remodel any structure. in that case, if the repairs are superseded or rendered unnecessary, the money standing to the dilapidation account may be applied towards the cost of the new work. . it is the duty of an incumbent to keep the parsonage house and other buildings of the benefice (including the chancel of the church in the case of a rector liable for its repairs) insured against loss or damage by fire to the satisfaction of the governors of queen anne's bounty, in the joint names of the incumbent and themselves, in at least three-fifths of the value of the buildings; and the receipt for the current year's premium in respect of the insurance must be exhibited at the next visitation of the bishop or archdeacon. the money received in respect of any destruction or damage of a building which the insurance office does not cause to be reinstated at its own expense, is to be paid to queen anne's bounty, and dealt with in the same manner as money standing to a dilapidation account. if the building cannot be reinstated for the amount for which it was insured, the diocesan surveyor is to certify the additional sum required for the purpose, with the same liberty to the incumbent or sequestrator to object and the same final order of the bishop as in the case of a report as to dilapidations. the prescribed sum is to be paid to queen anne's bounty, if the benefice is not sequestrated, by the incumbent (with power to the bishop, in default of payment, to raise the amount by sequestration of the benefice), or, if the benefice is under sequestration, by the sequestrator, in the same way as dilapidation money is payable by the incumbent or the sequestrator, as the case may be; and the money so paid to queen anne's bounty will be paid out on certificates of the surveyor during the progress of the works, as in the case of dilapidation repairs.[ ] . the provisions of the act do not apply to buildings let on lease where the lessee is liable to insure, rebuild, and repair; but the diocesan surveyor has power to inspect any such buildings.[ ] . although there is no positive rule of law on the subject, an incumbent should, as a matter of prudence, obtain a faculty, or at any rate the written consent of the bishop and patron, before making any substantial alteration in the parsonage house or other buildings of the benefice. if he fails to do so, he proceeds at the risk of himself and his estate; and if his action is afterwards challenged, it will lie upon him or his executors to prove that it was justifiable.[ ] the precaution should never be omitted in the case of removing a building without erecting another in its place. with regard to any building belonging to or forming part of a parsonage house which appears to be unnecessary, the bishop, on the application of the incumbent, and with the written consent of the patron, is expressly empowered to authorise its removal; and any net proceeds of the removal will be applied to the improvement of the benefice in such manner as the bishop and patron may agree.[ ] the foregoing remarks do not apply to structures such as movable sheds or garden frames, which are not regarded in law as affixed to the soil and therefore hereditaments like the land on which they stand, nor to fancy structures with which the succeeding incumbents ought not to be burdened.[ ] . upon the vacation of a benefice, the incumbent or his estate ceases to be entitled to the income and house of residence of the benefice. but on the death of a married incumbent who was at the time occupying the house of residence, his widow has a right to remain in occupation for two months after his death;[ ] and in every case, until the question of dilapidations is settled, the late incumbent or his executors or administrators may, at reasonable hours, with a surveyor, enter upon the premises of the vacated benefice.[ ] if the vacancy occurs otherwise than by resignation, the late incumbent or his executors or administrators have a right to emblements, that is to say, to reap and enjoy any crops which he sowed before the vacancy occurred but which have not ripened until afterwards.[ ] where, however, the glebe land is not cultivated by the incumbent himself, but is let to tenants, the current rents are in all cases apportionable between the late incumbent, or his estate, and the new incumbent, up to and from the date of the occurrence of the vacancy; and the same rule applies to tithe rentcharge and to any other income from endowments.[ ] subject to these rights and to provision being made out of the revenue of the benefice for the service of the cure during the vacancy,[ ] the new incumbent, on his admission, becomes entitled to the temporalities of the benefice as from the date when the vacancy took place. . under the tithe act, ,[ ] and various amending acts, a tithe commutation rentcharge has now been substituted for all the ancient tithes, except tithes of fish or of fishing, personal tithes (other than the tithes of mills), mineral tithes, payments instead of tithes within the city of london, permanent rentcharges or other payments in lieu of tithes calculated on the rent or value of houses or lands in a city or town under a custom or private act, and tithes commuted or extinguished under a previous act. and any of the excepted tithes and payments, as well as easter offerings, mortuaries, and surplice fees, could be brought within the operation of the acts by special provisions inserted in the parochial agreements framed under the acts and approved by the tithe commissioners.[ ] where the rectory is impropriate and there is a vicarage, the tithe commutation rentcharge payable to the rector has been assessed in lieu of the rectorial or great tithes, namely, those on corn, hay and wood, and the rentcharge payable to the vicar has been assessed in lieu of the vicarial or small tithes, those on fruits, herbs, live stock, poultry, milk, cheese, and eggs. under the earlier acts an extraordinary tithe rentcharge was leviable on lands for the time being cultivated as hop gardens, orchards, fruit plantations, and market gardens; but this special rentcharge has since been abolished, the lands which had been in practice liable to it having been made liable to a fixed additional rentcharge instead.[ ] the ordinary tithe rentcharge varies with the average prices of wheat, barley, and oats during the preceding seven years. it was originally assessed on the footing that £ , s. d. would buy . bushels of wheat, or . bushels of barley, or . bushels of oats; so that £ of rentcharge was equivalent to those amounts of the three grains. the actual amount of £ nominal rentcharge in any year is accordingly the sum which would buy those amounts of the three grains at the septennial average prices published in the _london gazette_ at the beginning of the year.[ ] . tithe commutation rentcharge is payable half-yearly by the owner of the land on which it is assessed. if it is in arrear for more than three months, it may be recovered on application to the county court, (_a_) if the owner is in occupation of the land, by distress, or, if there is no sufficient distress, by proceedings to obtain possession of the land under section of the tithe act, , and (_b_) in other cases, by the appointment of a receiver of the rents and profits of the land.[ ] special facilities are given for the recovery of tithe rentcharge payable in respect of land in the hands of a railway company which is in arrear for twenty-one days or upwards, by distress upon the goods of the company on any part of its line.[ ] . the dues payable to the clergy are of two kinds: (i.) ordinary dues and offerings, and (ii.) dues or fees payable for special services or special concessions. both kinds vary considerably by law or custom in different places, and, as regards the former, an act of provides that all persons who by the laws or customs of the realm ought so to do, shall yearly pay their offerings to the parson or vicar of the parish in which they dwell at the accustomed four offering days, or in default thereof at the next following easter. generally speaking, easter offerings are the only offerings of this description which are still payable.[ ] they are enjoined by the rubric at the end of the communion office and are due of right, and are recoverable under the small tithes recovery act, ,[ ] before two justices, subject to an appeal to quarter sessions. their legal amount, in the absence of custom to the contrary, is twopence per head, or, in london, fourpence per house.[ ] but these sums were fixed when the value of money and the wealth of the country were very different from what they are at present; and it is reasonable that voluntary easter offerings should now be made on quite another scale. the vicar of a new ecclesiastical parish has the same right to easter offerings as the incumbent of the ancient parish out of which it was carved.[ ] . mortuaries or offerings at the time of a person's death are due in certain places by custom, and, where so due, are recoverable in the ecclesiastical courts. but by an act of , they were limited to s. as the maximum and to small amounts where the deceased died worth less than £ in movable goods, none being payable if the deceased was not a householder and worth at least ten marks in movable goods, and a penalty was attached to demanding an illegal amount.[ ] . dues or fees payable for special services or concessions have already been mentioned in connection with churchings, marriages and burials, including in the last mentioned category those payable for the funeral itself, for the grave, and for any tombstone or monument to be erected upon it.[ ] . in some cases the incumbent's stipend depends wholly or in part upon pew rents. they can only legally be taken where authorised by a special or general act of parliament. in some churches they have been sanctioned by a special act, which prescribes their application, and the proportion (if any) which shall go towards the incumbent's stipend. they are also sanctioned in certain cases by the church building acts and new parishes acts. where pew rents are fixed under these acts, the incumbent is entitled to such portion of them as may be settled in the manner therein prescribed;[ ] and he can recover that portion from the churchwardens by an action at law.[ ] an incumbent, who has a vote for a parliamentary borough as a resident therein, and who receives for his own use part of the pew rents of the church, which is also situate in the borough, but which is his freehold, has a parliamentary vote for the county as a freeholder, since he does not occupy the church within the meaning of & will. , c. , s. .[ ] . the incumbents of certain ancient benefices above the yearly value of £ are liable to the payment to queen anne's bounty of first fruits in the first year of their incumbency and tenths in succeeding years. the first fruits are the amount of one year's value of the benefice as recorded in the _valor beneficiorum_ or king's books compiled in the sixteenth century, and the tenths are one-tenth of the same amount. they were originally paid to the pope, and were annexed by henry viii. to the crown, until queen anne bestowed them on the bounty which bears her name, to form a fund for the augmentation of poor livings. where they are payable, first fruits are due three months after admission to the benefice, and tenths annually at christmas. an incumbent is only chargeable with the whole of the first fruits if he remains incumbent at the end of two years from the occurrence of the vacancy which he was appointed to fill. he is liable to none, or to one-fourth, one-half or three-fourths, if he dies or is removed within the first, second, third, or fourth half-year after that event.[ ] two acts passed in and [ ] discharged from the payment of first fruits and tenths all benefices which at the time were under the annual value of £ , except that those of which the tenths had been previously granted away by the crown to other parties were still to continue liable to tenths only. other exemptions have been granted in favour of particular benefices at different times; and in , out of , benefices with and without cure of souls, only remained liable to tenths, of that number being also liable to first fruits.[ ] . income or property tax is payable by an incumbent under schedule (a) in respect of his house of residence, glebe lands, and tithe rentcharge.[ ] in respect of any landed property (other than a house of residence) actually occupied by him, income tax is also payable on one-third of its annual value, except that if he occupies it for the sole purpose of husbandry and can show that his profits fell short of that one-third, the tax is payable on the actual amount of the profits.[ ] the tax is also payable by him in respect of all other stipend, fees, perquisites and profits accruing to him by reason of his incumbency. but in estimating these a clergyman or other minister of religion may deduct money paid and expenses incurred wholly, exclusively, and necessarily in the performance of his ministerial duties. in two scotch cases these deductions were held to include the expense of visiting members of his congregation, attending church meetings enjoined on him as part of his duty, outlay on stationery, and communion expenses; but no deduction was allowed in respect of part of the manse used as an office for his clerical business, or for the cost of books or for a voluntary contribution made by him towards the stipend of an assistant minister.[ ] there is sometimes a difficulty in determining whether sums of money which are granted or given to a clergyman, but are not part of his legal or recognised stipend, are taxable perquisites or profits accruing to him by reason of his office or not. the true test, namely, whether the gift is made to him in respect of his office or is personal to himself, is not easy to apply in particular instances. in another scotch case it was held that a voluntary contribution made by parishioners to their minister, and received by him in respect of the discharge of the duties of his office, was taxable.[ ] a grant to a curate by the curates' augmentation fund in recognition of upwards of fifteen years' faithful service is not taxable, not being made in respect of performing present duties. but a grant to an incumbent from the queen victoria clergy fund, being made in respect of the poverty of his benefice, was decided by the court of appeal to be taxable, although the divisional court below had held the contrary.[ ] footnotes [ ] & vict. c. ; & vict. c. . [ ] under the school sites acts, , and ( & vict. c. , & vict. c. , & vict. c. ), land may under certain restrictions be conveyed to the minister and churchwardens and overseers of the poor, or to the ministers and churchwardens, of a parish, for the purpose of the education of the poor, and when so conveyed will remain vested in them and their successors as if they were a corporate body; but, except where authorised by a special local act, it cannot be conveyed to the incumbent and churchwardens, or to the churchwardens alone, in perpetuity for any other purpose. (in the city of london, however, churchwardens can, by custom, acquire and hold land as a corporation for ecclesiastical or parochial purposes.) the bodies corporate (joint tenancy) act, ( & vict. c. ), does not give any further power to an incumbent to hold property as a corporation jointly with another corporation or with individuals upon any ecclesiastical or charitable trusts; since the holding authorised by the act is to be subject to the same conditions and restrictions as attach to its holding by a body corporate in severalty; and an incumbent as above mentioned could not, without a licence in mortmain, hold as a corporation by himself any property upon similar trusts, unless empowered to do so by express statutory authority. [ ] jones _v._ ellis ( ) yo. & jer. , , ; batten _v._ gedye ( ) ch. d. . [ ] morley _v._ leacroft ( ) p. ; neville _v._ kirby ( ) p. . [ ] jarratt _v._ steele ( ) phill. ; jones _v._ ellis _ubi sup._; griffin _v._ dighton ( ) b. & sm. , aff. ; l. j. q. b. , aff. . [ ] harrison _v._ forbes ( ) jur. n. s. ; redhead _v._ wait ( ) l. t. n. s. . [ ] daunt _v._ crocker ( ) l. r. a. & e. ; l. j. eccl. . [ ] greenslade _v._ darby ( ) l. r. q. b. ; b. & sm. . [ ] stat. (_temp incert._) _ne rector prosternat arbores in cemiterio._ [ ] ( ) & vict. c. , s. . [ ] ( ) & will. , c. ; angell _v._ paddington vestry ( ) b. & sm. ; l. r. q. b. . [ ] reg. _v._ lee ( ) q. b. d. . [ ] m'gough _v._ lancaster burial board ( ) q. b. d. ; j. p. . [ ] keet _v._ smith ( ) l. r. a. & e. ; rev. ( ) p. d. . the bishop himself decides disputes as to monumental inscriptions on stones in the consecrated portion of a burial ground provided under the burial acts; ( ) & vict. c. , s. . as to the consecrated parts of cemeteries established by companies under the cemeteries clauses act, , see & vict. c. , s. . [ ] sm. churchw. - . a faculty is not necessary for mere repairs or redecoration where no alteration is made in the structure or the design, nor for trifling additions such as movable seats or hassocks. but a change in the mode of lighting or heating the church ought to be sanctioned by faculty. the grant of a faculty, besides ensuring that all is done legally and carefully, prevents any ill-feeling being cherished in the parish on the score of the alteration having been made without the knowledge or consent of some of the parishioners; since the application for the faculty affords to all who are interested in the matter an opportunity for submitting their views upon it. the regular mode of obtaining the approval of the parishioners to it is by a resolution of the vestry. but the opinion of the vestry is not conclusive; and a distinction will sometimes be made between the votes of those members of the vestry who are church people and those who are not; see note ( ) on p. above. [ ] rosher _v._ vicar of northfleet ( ) add. ; pitcher _v._ the same ( ) _ib._ . [ ] adlam _v._ colthurst ( ) l. j. eccl. . [ ] vicar of tottenham _v._ venn ( ) l. r. a. & e. , . [ ] _re_ bideford parish ( ) p. . [ ] rector of st. stephen's, wallbrook _v._ sun fire office trustees ( ) trist. cons. judgm. . [ ] _re_ st. martin's orgars ( ) _ib._ . comp. rector of st. stephen's, wallbrook _v._ sun fire office trustees, _ubi sup._ [ ] _re_ st. george in the east ( ) p. d. . [ ] ( ) & vict. c. ; ( ) & vict. c. , s. . [ ] com. dig. tit. "dismes" (b. ). [ ] burn, . [ ] bird _v._ relph ( ) b. & ad. . [ ] degge, ch. viii.; sowerby _v._ fryer ( ) l. r. eq. . the right to cut timber for the purpose of repairs includes the right to sell timber at a distance from the site of the repairs and buy other timber with the proceeds of the sale; wither _v._ dean of winchester ( ) mer. . [ ] holden _v._ weekes ( ) j. & h. ; ecclesiastical commissioners _v._ wodehouse ( ) ch. . [ ] ross _v._ adcock ( ) l. r. c. p. . [ ] geo. , c. ; geo. , c. . [ ] geo. , c. ; & vict. c. ; & vict. c. , s. . [ ] ( ) & vict. c. . [ ] ( ) & vict. c. ; ( ) & vict. c. ; ( ) & vict. c. . [ ] ( ) geo. . c. , s. ; ( ) geo. , c. ; ( ) geo. , c. ; ( ) geo. , c. , s. ; ( ) & vict. c. , s. ; ( ) & vict. c. , s. . as to the consent of the board of agriculture being requisite to a grant of common land, see ( ) & vict. c. , s. . [ ] ( ) geo. , c. ; ( ) geo. , c. ; ( ) geo. , c. ; ( ) geo. , c. ; ( ) geo. , c. ; ( ) & vict. c. ; c. ; ( ) & vict. c. ; ( ) & vict. c. ; ( ) & vict. c. , s. ; ( ) & vict. c. ; ( ) & vict. c. , s. ; ( ) & vict. c. , s. ; ( ) & vict. c. ; ( ) & vict. c. . see also the sale of glebe land rules (weekly notes ( ) p. ); ecclesiastical commissioners _v._ pinney ( ) ch. ; ch. ; aff. ( ) ch. . [ ] ( ) & vict. c. , ss. , . [ ] ( ) & vict. c. . [ ] ( ) & vict. c. ; ( ) & vict. c. ; ( ) & vict. c. ; ecclesiastical commissioners _v._ wodehouse ( ) ch. . [ ] wise _v._ metcalfe ( ) b. & c. ; martin _v._ roe ( ) e. & b. . [ ] & vict. c. . the act is amended so far as respects the rates of fees thereunder by ( ) & vict. c. ; and so far as respects mortgages for loans, by that act and ( ) & vict. c. and the intermediate acts specified in the schedule thereto, and, in the case of extraordinary tithe redemption, by ( ) & vict. c. , s. . [ ] the time is not essential, caldow _v._ pixell ( ) c. p. d. . [ ] _re_ monk: wayman _v._ monk ( ) ch. d. . consequently if on an incumbent's death the benefice is under sequestration, the sequestrator is not liable for the dilapidations; jones _v._ dangerfield ( ) ch. . on an exchange, the claim for dilapidations may be waived on both sides, with a view to their falling, in the case of each benefice, on the incoming instead of on the outgoing incumbent; wright _v._ davies ( ) c. p. d. . [ ] kimber _v._ paravicini ( ) q. b. d. . [ ] ( ) & vict. c. , ss. - . [ ] _ib._ ss. , . [ ] huntley _v._ russell ( ) q. b. ; jur. ; l. j. q. b. . [ ] ( ) & vict. c. , s. . [ ] huntley _v._ russell, _ubi sup._; martin _v._ roe ( ) e. & b. ; jur. n. s. ; l. j. q. b. . [ ] ( ) & vict. c. , s. . [ ] ( ) & vict. c. , s. . [ ] ( ) hen. , c. , s. ; bulwer _v._ bulwer ( ) b. & ald. . [ ] ( ) geo. , c. , s. ; ( ) & will. , c. ; ( ) & will. , c. , s. ; ( ) & vict. c. . [ ] see ch. iii. § (_a_) above. [ ] & will. , c. . [ ] & will. , c. , s. . the statutory powers of the tithe commissioners are now vested in the board of agriculture. [ ] ( ) & vict. c. , s. ; ( ) & vict. c. , ss. , ; ( ) & vict. c. ; ( ) & vict. c. . [ ] ( ) & vict. c. (corn returns). [ ] ( ) & vict. c. . [ ] ( ) & vict. c. , s. . [ ] & edw. , c. , s. (see ( ) & vict. c. , sch.). the four offering days are christmas, easter, whitsuntide, and the feast of the dedication of the parish church; gibs. cod. . [ ] & will. , c. . [ ] wats. ch. iii. p. ; carthew _v._ edwards ( ) ambl. ; ( ) l. r. q. b. ; phill. eccl. law, pt. v. ch. iv. § , pp. - . [ ] ( ) & vict. c. , s. . [ ] ( ) edw. , st. _circumspecte agatis_; ( ) hen. , c. ; wats. ch. iiii. pp. - ; phill. eccl. law, pt. iii. ch. x. § , pp. - . [ ] see above, ch. v. § ; ch. vi. § ; ch. vii. §§ , , , . [ ] sm. churchw. - ; ( ) geo. , c. , ss. - , - ; ( ) geo. , c. , ss. , , , - ; ( ) geo. , c. , ss. - ; ( ) geo. , c. , ss. , , ; ( ) & will. , c. , ss. , , ; ( ) & vict. c. , s. ; ( ) & vict. c. , s. ; ( ) & vict. c. , ss. - ; ( ) & vict. c. , s. . [ ] lloyd _v._ burrup ( ) l. r. ex. . [ ] wolfe _v._ clerk of surrey county council; reeve _v._ the same ( ) k. b. . [ ] ( ) eliz. c. , s. ; wats. ch. xv. pp. - ; phill. eccl. law, pt. v. ch. viii. pp. - . [ ] ann. cc. , . [ ] report of select committee on first fruits and tenths and administration of queen anne's bounty (presented to the house of commons and ordered to be printed th june ), p. iv. [ ] in estimating the value of tithe rentcharge, the necessary cost of collection may be deducted, stevens _v._ bishop ( ) q. b. d. ; aff. ( ) q. b. d. . [ ] & vict. c. (finance act, ) ss. , . [ ] & vict. c. (income tax act, ) s. ; charlton _v._ inland revenue commissioners ( ) sc. l. r. ; lothian _v._ macrae ( ) sc. l. r. . [ ] inland revenue _v._ strang ( ) sc. l. r. . [ ] turner _v._ cuxon ( ) q. b. d. ; herbert _v._ m'quade ( ) k. b. ; rev. on app. ( ) k. b. . index ablutions, absolution, _sq._, - admission to benefice, - ; to curacy, ; of churchwardens, advowson, ; sale and transfer of, - agnus dei, albe, allegiance, oath of, apportionment of income on vacancy, archbishop, , , , _sq._, , , archdeacon, _sq._, , , articles, thirty-nine, , , , (n.) authority, lawful, , baldacchino, bankruptcy, , banns, , , - , baptism, - ; lay, , beadle, _sq._ bells, , , , , _sq._ benefice, ; admission to, - ; holding of two, , beneficed clergy, - , - benefices act, - , bigamy, biretta, bishop, - , , , _sq._, , , , ; suffragan, body, cast up by sea, ; removal of, _sq._, brawling, , brick grave, (n.), buildings, - ; removal of, _sq._ burial, - burial acts, - ; act of , , _sq._; act of , - candles, candlesticks, , canons, canon law, - canonical obedience, , catechising, _sq._ cemetery, , (n.), _sq._ ceremonies, , , certificate of surveyor, _sq._; of registrar for marriage, , - chalice, mixed, chancel, - ; seats in, ; gates, chancellor, _sq._, , , _sq._ chapel, private, ; of school or institution, ; proprietary, _sq._; of burial-ground, _sq._ chasuble, choristers, church, rights in, - , - ; burial under, ; of new parish, , , church discipline act, - , church trustees, _sq._ churching, churchwardens, , , - , _sq._, _sq._, (n.) churchyard, - , - clergy, civil privileges and disabilities, - ; duties, - , _sq._; ordained for service abroad, _sq._, ; protection, , ; relinquishment of office, ; secular occupations, - ; unbeneficed, , - clergy discipline act, _sq._, , clergy resignation bonds act, clerical disabilities act, clerk, parish, , _sq._, - collation, - collection of money, _sq._, _sq._ colonial clergy act, _sq._, commission of inquiry, , _sq._, communion service, , _sq._; administration, - ; refusal of, - , - ; of sick, _sq._ confession, _sq._, - confirmation, _sq._, _sq._ consecration, ; of burial-ground, - conviction, cope, coroner's order, _sq._ corporate status of incumbent, _sq._ council (borough, county, district, parish), ; parochial church, courts, ecclesiastical, - credence table, cremation, cross, ; sign of, crucifix, curate, , - ; assistant, , , , - ; in charge, , - ; perpetual, _sq._ curates' augmentation fund, cure of souls, dangerous structure, deacon, _sq._, , dean, (n.); rural, , declaration of assent, _sq._, deprivation, , - dilapidations, - diocese, _dioececis_, dissenters, , _sq._, _sq._, , _sq._ divorce, _sq._ dues, _sq._ easter offerings, _sq._ ecclesiastical dilapidations act, - elevation, emblements, established church, - exchange, , excommunicate, burial of, faculty, , , _sq._, , - farming, _sq._, fees, _sq._, , , - , - , fire insurance, _sq._, first fruits, _sq._ flower vases, foreigner, marriage of, _sq._; ordination of, _sq._, genuflexions, gilbert acts, _sq._ glass shades, glebe, _sq._, _sq._, _sq._, godparents, gown, black, grave, private, _sq._, , guardian of poor, ; of minor, _sq._ homily, _sq._ hood, house, parsonage, - house of commons, ; of lords, hymns, , , and note illegitimate child, baptism of, ; marriage of, , (n.) images, immersion, incense, income tax, _sq._ incumbent, ; rights and duties of, - , _sq._, - incumbents' resignation acts, _sq._ induction, _sq._ institution, - ireland, banns in, ; clergy of, _sq._, judicial decisions, - , (n.); procedure, - jury, exemption from, justice of the peace, keys of church, laity, - ; baptism by, , lapse, _sq._ leases, of glebe, _sq._; of buildings, , lecture, lecturer, , , lecturers and parish clerks act, , licence, admission by, - ; for marriage, _sq._, - ; in mortmain, ; to officiate, - ; for unconsecrated building, , , litany, , lunatic, resignation of, ; marriage of, marriage, - ; validity of, , - mines, minister in charge, , - minor, marriage of, _sq._ money, collection of, _sq._, _sq._ monument, _sq._ mortmain and charitable uses acts, mortuaries, neglect of duties, - , , non-parishioner, burial of, - non-residence, - , _sq._, notices, offertory, _sq._, _sq._ orders, indelibility of, organ, organist, _sq._, ornaments, - ; rubric, , (n.) parish, _parochia_, ; new, _sq._, , , parson, parsonage house, - patronage, , - peel district and parish, (n.), _sq._ pension on resignation, _sq._ pew, private, ; rents, _sq._ pictures, prayer, morning and evening, - prayer book, , - ; first of edward vi., (n.), , _sq._, (n.), _sq._ preaching, _sq._, _sq._. presentation, - ; next, private ministrations, _sq._, - prohibited degrees, , _sq._ property tax, _sq._ public worship regulation act, _sq._, quarries, queen victoria clergy fund, rates, reader, _sq._ rector, rectory, - , - register of marriages, _sq._ registrar, certificate of, , - ; licence of, _sq._; service after marriage before, religious worship, liberty of, _sq._ removal of body, _sq._, reservation, , residence, - , _sq._, ; house of, _see_ parsonage house; for marriage, , resignation, , - roman catholic patron, rural dean, , sacristan, _see_ sexton scarf, school sites acts, schools, _sq._ scotland, banns in, ; clergy of, _sq._, sculptures, seats (_see also_ pew), sequestration, _sq._, , _sq._, , - sermon, , , _sq._ service, divine, - sexton, _sq._, - sick, visiting of, ; visitation of, _sq._; communion of, _sq._ sidesmen, _sq._ simony, , ; declaration against, _sq._ stole, sturges bourne's act, - suicide, surplice, , _sq._ surrogate, surveyor, diocesan, , _sq._ table, holy, ; second, tax, income, _sq._ tenths, _sq._ testimonials, _sq._, tithes, - , , - tombstone, _sq._; removal of, _sq._ trading, _sq._ trustees, church, tunicle, unbaptized, burial of, unbeneficed clergy, - , - unconsecrated buildings, - uniformity, acts of, , - , (n.), vacancy, - , _sq._, , _sq._, vault, _sq._, , , vestments, , _sq._ vestry, - , , ; marriage in, vicar, vicarage, , , visitation, , , ; of sick, _sq._ wafers, waste, _sq._ welsh language, _sq._ widow, occupation of parsonage house by, the end printed by ballantyne, hanson & co. london & edinburgh =handbooks for the clergy= edited by the rev. arthur w. robinson, b.d., vicar of allhallows barking by the tower. _price s. d. net._ =the personal life of the clergy.= by the editor. =patristic study.= by the rev. h. b. swete, d.d., regius professor of divinity in the university of cambridge. =the ministry of conversion.= by the rev. a. j. mason, d.d., master of pembroke college, cambridge, and canon of canterbury. =foreign missions.= by the right rev. h. h. montgomery, d.d., formerly bishop of tasmania, secretary of the society for the propagation of the gospel in foreign parts. =the study of the gospels.= by the very rev. j. armitage robinson, d.d., dean of westminster. =a christian apologetic.= by the very rev. wilford l. robbins, dean of the general theological seminary, new york. =pastoral visitation.= by the rev. h. e. savage, m.a., vicar of halifax. =authority in the church.= by the very rev. t. b. strong, d.d., dean of christ church, oxford. =the study of ecclesiastical history.= by the right rev. w. e. collins, d.d., bishop of gibraltar. =religion and science.= by the rev. p. n. waggett, m.a., of the society of st. john the evangelist, cowley. =lay work and the office of reader.= by the right rev. huyshe yeatman-biggs, d.d., bishop of worcester. =church music.= by a. madeley richardson, mus. doc., organist of st. saviour's collegiate church, southwark. =intemperance.= by the right rev. h. h. pereira, d.d., bishop of croydon. =elementary schools.= by the rev. w. foxley norris, m.a., rector of barnsley and hon. canon of wakefield. =charitable relief.= by the rev. clement f. rogers, m.a. =the legal position of the clergy.= by p. v. smith, ll. d., chancellor of the diocese of manchester. longmans, green, and co. london, new york, and bombay. oxford library of practical theology edited by the rev. w. c. e. newbolt, m.a., canon and chancellor of st. paul's; 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(lond.), licentiate of the royal college of physicians; associate of king's college, london; physician to the west of london hospital; formerly medical superintendent of st. luke's hospital, and physician to the surrey dispensary, etc. london: john churchill, new burlington street. . printed by taylor and francis, red lion court, fleet street. to the right honourable the earl of shaftesbury, chairman of the commission of lunacy, whose long-continued and untiring efforts in behalf of the insane have earned for him the highest esteem and admiration of all who feel interested in the welfare of that class of the afflicted, this treatise is, by permission, respectfully dedicated by his lordship's most obedient humble servant, the author. preface. the writer of a book is usually expected to show cause for its production,--a custom which, however commendable as a sort of homage to his readers for challenging their attention to his lucubrations, must often put the ingenuity of an author to the test. indeed the writer of this present treatise would feel some embarrassment in accounting for its production, did he not entertain the conviction that he has, in however imperfect a manner, supplied a work on several important subjects which have never before been so placed before the public, and which, moreover, occupy just now a most prominent position among the topics of the day. in the last parliament, up to the period of its dissolution, a special committee of the house of commons was engaged in examining into the condition of lunatics and the laws of lunacy; and the present government has re-appointed the committee, in order to resume the inquiry preparatory to the introduction of new enactments into the legislature. the subjects treated of in the following pages relate to the same matters which have engaged the attention of parliament, and elicited the special inquiry mentioned, viz. the present state of lunacy and of the legal provision for the insane with reference to their future wants. in order to a better appreciation of the existing provision for the insane, and of its defects, the author has introduced certain preliminary chapters on the number of the insane, on the increase of insanity, on the inadequacy of the existing public provision for the insane, and on the curability of insanity. in reviewing the character and extent of the provisions for the insane, the course adopted has been to regard them in reference to their effects on recovery, and to discover the conditions inimical to it, whether without or within asylums. hence the evils of private treatment and of workhouse detention of lunatics, particularly of the latter, have largely claimed attention. the condition of pauper lunatics boarded with their friends or with strangers demanded special notice, as did the long-complained-of evils of sending unfit cases to the county asylums, often to the exclusion of recent and curable ones, which might by proper treatment be restored to health and society. turning to the consideration of our public asylums, considered as curative institutions, the disposition to extend them to an unmanageable size, and to substitute routine for treatment, has called for animadversion, as an error pregnant with numerous evils to their afflicted inmates. another error pointed out is that of appointing too small a medical staff to asylums; and in proving this, as well as in estimating the proper size of asylums, the experience and opinions of both english and foreign physicians are copiously referred to. the future provision for the insane forms an important chapter, which, in order to consider the several schemes proposed, is divided into several sections, viz. concerning the propriety of building separate asylums for recent and for chronic cases--of constructing distinct sections--of distributing certain patients in cottage homes--of erecting separate institutions for epileptics and for idiots. the registration of lunatics has appeared to the author's mind of so great necessity and value that he has devoted several pages to unfold his views and to meet probable objections; and, in order to render the plan effectual, he has propounded as a complementary scheme the appointment of district medical officers, and entered into detail respecting the duties to be imposed upon them. viewing the commission of lunacy as the pivot upon which any system of supervising and protecting all classes of lunatics must turn, it became necessary to examine into the capability of the present board for its duties; and the result of that examination is, that this board is inadequate to the effectual performance of the duties at present allotted to it, and that it would be rendered still more so by the adoption of any scheme for a thoroughly complete inspection and guardianship of all lunatics. this conclusion suggests the proposition to enlarge the commission, chiefly or wholly, by the appointment of assistant commissioners, charged particularly with the duties of inspectors. the concluding chapter, on asylum construction, may be considered supplementary. its chief intent is to develope a principle generally ignored, although (unless the arguments in support of it fail) one of great importance if asylums are to serve, not as simple refuges for lunatics, but as instruments for treating them. this _résumé_ of the heads of subjects discussed in the ensuing pages will, on the one hand, show that the present is not to be reckoned as a medical treatise, but as one addressed to all who are interested either in the legislation for lunatics or in their well-being and treatment; and, on the other, make good, it is trusted, the assertion that it occupies an untrodden field in the literature of insanity, and that its matter is good, even should its manner be thought not so. assuming the publication of the book to be justifiable, it only remains for the author to add that he has not undertaken its composition without bringing to the task thirteen years' study and practical experience among the insane, treated in private houses, in licensed houses, and in public asylums, together with the fruits of observation gathered from the visitation of most of the principal asylums of france, germany, and italy. in conclusion, he hopes that this small volume may in some measure contribute towards the amelioration of the condition of the insane, who have such especial claims on public sympathy and aid. j. t. a. kensington, july . contents. preliminary observations. importance of an inquiry relative to the number of the insane, and the legal provision for them, . chap. i.--of the number of the insane. official returns imperfect, .--divergence of returns of lunacy commissioners and of poor-law board, .--unreported 'private' lunatics, .--criminal lunatics in prisons, .--inadequate estimate of the number of the insane, .--illustration of the difficulty of discovering the true statistics of lunacy, .--number of pauper lunatics in workhouses, .--paupers not enumerated in official returns, .--estimate of the total number of the insane on st of january , .--causes of apparent increase, . chap. ii.--on the increase of insanity. materials for calculation unsatisfactory, .--rate of accumulation of the insane in asylums, .--estimate of increase made by the commissioners, .--table of number of lunatic paupers in workhouses, .--calculation of their rate of increase, .--increase of pauper lunatics not in workhouses or asylums, .--total increase and accumulation of lunatics, .--positive increase of insanity by new cases, .--table of admissions in four years, .--total number of new cases added yearly, .--expenditure on account of the pauper insane, .--proportion of the insane to the population, .--cause of accumulation of the insane, .--suggestions for obtaining improved statistics of pauper lunatics, . chap. iii.--state of the present provision for the insane in asylums.--its inadequacy. commissioners' calculation of asylum accommodation wanted, .--their conclusion that the present provision is inadequate, .--on the accuracy of the commissioners' conclusions, .--pauper lunatics accommodated in workhouses, and boarded out, .--their unsatisfactory condition, .--colony of insane at gheel, in belgium, .--character of lunatics in workhouses, .--unfit cases of insanity in workhouses, .--commissioners' estimate that one-half of lunatic inmates of workhouses are improperly detained, .--estimate of asylum accommodation required, . chap. iv.--on the curability of insanity. insanity a very curable disorder, .--experience of american physicians, .--exceptional circumstances in american asylums, .--experience of st. luke's hospital, london, .--experience of the derby county asylum, .--advantages of early treatment, . chap. v.--on the causes diminishing the curability of insanity, and involving the multiplication of chronic a. _causes external to asylums._ § _detention of patients in their own homes._ absence of all curative influences at home, .--causes of delay in submitting patients to treatment, .--impediments to transmission to county asylums, .--evils of pauper test in public asylums, .--characters of continental asylums, .--practice followed in america, .--scheme of assessment of means of those applying for admission to public asylums, .--failure of the pauper test to protect the rate-payers, .--its demoralizing and degrading effects, .--suggestion as to conditions and mode of admission into county asylums, .--act in force to recover the costs of maintenance objectionable and inefficient, . § _detention of patients in workhouses._ detention practised on economical considerations, .--examination of the value of such considerations, .--estimated cost in asylums and in workhouses includes different items in the two, .--illustration from the devon asylum report, .--children constitute above two-thirds of workhouse inmates, .--material effect of this on the cost of maintenance, .--inmates of asylums almost all adult, .--fluctuations among inmates of workhouses greater than in asylums, .--mode of estimating the rate per head of cost in workhouses, .--population of workhouses, sane and insane mixed, ;--that of asylums of insane especially, .--those insane who involve increased cost rejected from workhouses, .--remarks on this point by dr. bucknill, .--economy of workhouses for the insane doubtful, .--cost of asylums contrasted with that of workhouses, .--system of asylum structure hitherto adopted unnecessarily expensive, .--workhouses and asylums not fairly comparable as to cost, .--plan to diminish cost of asylums one-half, .--chronic lunatics can be provided with asylum accommodation at a rate not exceeding that for workhouses, .--internal cost of asylums and workhouses compared, .--mistaken policy of constructing lunatic wards, .--unfitness of workhouses for insane patients, , .--evils attending presence of lunatics in workhouses, .--american experience in the matter, .--workhouses unfit by structure and organization, , .--workhouse detention especially prejudicial to recent cases, , .--deficiency of medical care and of nursing in workhouses, , .--the dietary of workhouses insufficient for lunatics, , .--injurious effects of workhouse wards upon lunatics, , .--lunacy commissioners' remarks thereon, .--dr. bucknill's remarks on the same subject, .--characters of the lunatic inmates of workhouses, .--the majority of them imbecile and idiotic, .--proportion especially claiming asylum care, .--epileptics and paralytics unfit inmates of workhouses, .--old demented cases badly provided for in workhouses, .--imbecile patients are, as a rule, unfit inmates, .--idiots improperly detained in workhouses, .--none but a few imbeciles permissible in workhouses, .--on the class of supposed 'harmless' lunatics, .--remarks by dr. bucknill on this class, .--experience of the surrey magistrates on transferring 'harmless' patients to workhouses, .--degradation of the patients' condition in workhouses, .--legality of workhouse detention examined, .--remarks on this subject by the lunacy commissioners, .--clauses of the lunacy asylums act bearing on the subject, .--defects of the law in protecting the pauper insane, .--remarks of the lunacy commissioners on the anomalies of the law, .--objections to the powers conferred upon parochial officers, .--the law obscure, and open to evasion, .--duties of the parish medical officers ill-defined, .--proposal of a district medical officer, .--contravention of the law by boards of guardians, , .--the further construction of lunatic wards should be stopped, .--necessity for the supervision of the lunacy commissioners over workhouses, .--several amendments of the lunacy laws suggested, .--proposed regulations for supervision of workhouses containing lunatics, , .--lunatics in workhouses should be under certificates, .--proposal to increase powers of lunacy commissioners over workhouses, .--on the supplement to the 'twelfth report' ( ) 'of the commissioners in lunacy,' on workhouses, .--abstract of its contents:--unfitness of workhouses for lunatics, .--workhouses in large towns most objectionable, .--lunatic wards more objectionable than the intermixture of the insane with the other inmates, .--miserable state of the insane in lunatic wards, , .--no efficient visitation of workhouse lunatics, .--insufficiency of the dietary for insane inmates, .--medical treatment and nursing most defective, .--fearful abuse of mechanical restraint in workhouses, .--wretched neglect and want in the internal arrangements for lunatics in workhouses, .--abuse of seclusion in workhouses, .--varieties of mechanical restraint employed, .--absence of all means for exercise and occupation, .--lunatics in workhouses committed to gaol, .--neglect and contravention of the law by parish officers, .--amendments in the law suggested by the lunacy commissioners, .--proposal to erect asylums for chronic cases, , .--visiting justices of asylums to supervise workhouse lunatic inmates, , . § _pauper lunatics living with relatives or strangers._ number of such lunatics, .--neglect of their condition, .--question of insanity should be left to the district medical officer, , .--this officer should visit and report on their condition, , .--indications of the unsatisfactory state of this class of pauper lunatics, .--evidence from dr. hitchman's reports, .--wretched state of 'single' pauper patients in scotland, .--neglect of poor-law medical officers towards such patients, .--objections to boarding pauper lunatics with strangers, .--district medical officer to select their residence, , .--advantage of keeping them in lodgings near asylums, , .--distribution of lunatics in cottage homes, , .--notice of the colony of insane at gheel, , . § _unfit cases sent to asylums.--improper treatment prior to admission._ recklessness and cruelty in transmitting patients, .--non-lunatic cases sent to asylums, .--cases of very aged persons sent, .--previous horrible neglect of patients, and their moribund state on admission, .--extracts from reports of asylum superintendents illustrative of the facts, - .--transfer of lunatics to asylums must be committed to some competent and independent officer, .--want of instruction for medical men in insanity, ;--errors committed owing to the want of it, .--neglect of psychological medicine in medical education, .--law regulating transfer of weak cases to asylums, .--an amendment of the law requisite, . chap. vi.--causes operating within asylums to diminish the curability of insanity, and involving a multiplication of chronic lunatics. § _magisterial interference_ and § _excessive size of asylums_. defective medical staff in large asylums, .--efficient treatment impossible, , .--degeneration of management into routine, .--exclusive estimation of so-called 'moral treatment,' .--a very large asylum especially prejudicial to recent cases, .--delegation of medical duties to attendants, .--evils of absence of medical supervision over individual patients, .--evils of large asylums upon character of attendants, .--routine character of medical visits, , .--necessity of medical supervision being complete, , , .--distinction of asylum attendants into two classes--attendants proper, or nurses, and cleaners, .--objections advanced by the lunacy commissioners to large lunatic asylums, .--the erection of large asylums supposed to be economical, .--the supposition fallacious, .--commissioners' remarks on these topics, .--rate of maintenance higher in the largest asylums, .--inadequate remuneration of medical superintendents, .--lord shaftesbury's advocacy of improved salaries, . § _limit to be fixed to the size of asylums._ proper number to be accommodated in an asylum, , , _et seq._--estimate of american physicians, .--estimate of french and german physicians, .--peculiar organization of german asylums, , . § _increase of the medical staff of asylums._ opinions of foreign physicians on the subject, .--estimate of the medical staff requisite, .--erroneous views prevalent in some asylums, .--illustration furnished by the middlesex asylums, .--jacobi's views of asylum organization, .--advantages of unity in the organization of asylums, .--appointment of a chief physician, paramount in authority, .--circumstances affecting the selection of asylum superintendents, . chap. vii.--on the future provision for the insane. rapid extension in the demand for accommodation, .--illustrated by reference to the middlesex asylums, . § _separate asylums for the more recent and for chronic cases._ objections to such separate establishments, .--examination of the value of these objections, .--cases to be transferred from one institution to the other, how determined, .--mixture of recent with chronic cases undesirable, , .--examination of the present relative position of acute and chronic cases, .--separate treatment of recent cases desirable, .--influence of distance on the utility of an asylum as a place of treatment, .--borough asylums, .--many chronic cases removable from asylums, .--less expensive buildings needed for chronic cases, .--views of the lunacy commissioners on these points, .--evidence of lord shaftesbury, .--french system of dividing asylums into 'quarters,' .--permissive power of lunacy act to build distinct asylums for chronic cases, .--on the powers of the home secretary to control asylum construction, .--amendment of present act proposed, .--on mixed asylums, for recent and chronic cases together, .--conditions under which distinct institutions are desirable, .--advantages of an hospital for recent cases, .--number of inmates proper in such an hospital, .--regulations required in it, .--organization of asylums for chronic cases, .--union of counties for the purpose of constructing joint asylums, . § _construction of distinct sections to asylums._ german system of 'relative connexion' of asylums for recent and chronic cases, .--proposition of lunacy commissioners to place industrial classes of patients in distinct wards, .--advantages of separate sections, .--objections to a purely 'industrial classification' of patients, . § _distribution of the chronic insane in cottage homes._ subdivision of asylums for chronic cases, .--illustration of cottage provision for the insane at gheel, .--the system at gheel impracticable as a whole, .--the 'cottage system' deserving of trial under proper restrictions, .--suggestions as to the arrangements required, .--'cottage system' supplementary to asylums, .--economy of 'cottage system,' . § _separate provision for epileptics and idiots._ epileptics need separate provision, .--idiots not fit inmates of lunatic asylums, .--idiots require special asylum provision, .--removal of idiots from workhouses, . chap. viii.--registration of lunatics. necessity of registering the insane, .--large number of insane at present unprotected, .--legal advantages of registration, .--desirability of correct statistics of insanity, .--lord shaftesbury's evidence on this point, .--registration as a means of discovering the existence and condition of lunatics, .--registration would promote early treatment, .--should be accompanied by visitation, .--enactment necessary to regulate the sending of lunatics abroad, .--practice pursued in sardinia, .--suggestions offered, .--all patients removed uncured from asylums ought to have the place of their removal reported, .--objections raised to registration, .--their validity examined, .--principle of a compulsory registration and visitation of all lunatics recognized in belgium, .--english enactments respecting 'single' patients, .--their failure, .--lunatics secluded under the name of 'nervous' patients, .--lord shaftesbury's observations on defects in the lunacy laws respecting 'single' cases, .--clauses to act, proposed by his lordship, to deal with 'nervous' patients, .--clauses open to some objections, .--lord shaftesbury's proposal to report every 'nervous' patient, .--compulsory powers of lunacy act defective, .--suggestions made, .--proposition to report all lunatics to a district medical officer, who should visit, .--additional certificate granted by this officer, .--lunatics well protected, .--modification of present form of certificates of insanity, .--objections to two forms of certificates, .--determination of the nature of certificate to be given, .--clause in scotch asylums act respecting 'single' cases, .--need of mitigated certificates and of intermediate asylums for certain cases of mental disturbance, . chap. ix.--appointment of district medical officers. district physicians appointed in italy and germany, .--recognition of principle of appointing district officers in england, in the instance of sanitary medical officers, .--district medical officers need to be independent, .--extent of districts, .--such officers to register and visit reported cases of lunacy, .--their reports of cases valuable, .--idiots also should be registered, .--district officer might sign order for admission to an asylum, .--better qualified for the duty than magistrates, , .--illustrations from evidence of lord shaftesbury and mr. gaskell, .--suggestions respecting signature of orders, .--objections to clergymen signing orders, .--magistrate's order not required for private patients, .--remarks on proposition of commissioners to leave selection of cases in workhouses for asylum treatment to the union medical officer, .--district officer best qualified for this duty, .--additional protection afforded to lunatics by the appointment of district medical officers, .--district officer to inspect lunatics in workhouses, .--regulations for his guidance, .--lunatics in workhouses should be under certificate, .--medical officer best judge of the wants of cases, .--no removal of lunatics from workhouses without supervision, .--committee of visiting magistrates for workhouses, .--principles of action of the lunacy commission, .--commissioners' recommendation of visiting committees, .--workhouses licensed to receive lunatics, .--lunatics in workhouses reported by district officer, .--visitation of pauper lunatics by parish authorities, .--no such visitation of county lunatics, .--desirability that county lunatics should have a visitor, .--determination of question of lunatics chargeable best left to district officer, .--duties of district officer with outdoor pauper lunatics, .--need of inspection of singly-placed lunatics, .--cost of such inspection, .--district officer to visit single cases in lodgings, &c., .--to visit private asylums as the physician, joined in inspection with the magistrates, .--position and remuneration of district officers, .--such officers to be met with, .--district officers engaged in medico-legal inquiries, .--such a class of officers much needed, .--neglect of organization in state medical matters, .--a proper organization not necessarily costly, . chap. x.--on the lunacy commission. centralization dreaded as an evil, .--importance of a central and independent body to the interests of the insane, , .--want of power in the hands of commissioners, .--reasons for a central board, .--more frequent visitation of asylums desired, .--value of commissioners' opinion on lunatic cases, .--inquiries of commissioners respecting the payment for patients, .--divided authority of commissioners and magistrates in the case of private asylums, .--anomaly of this state of things, .--lunacy commissioners too few, .--magistrates not effectual as asylum visitors, .--jurisdiction of the commission should be the same throughout the country, .--licensing powers of magistrates, .--duties of office of masters in lunacy, .--commissioners should visit all lunatics, whether chancery or not, .--proposed division of lunacy commission, , .--advantages of the division proposed, .--reasons for increasing commission, .--want of commissioners' supervision of lunatics in gaols, .--inadequacy of the present number of commissioners, .--appointment of assistant commissioners, . chap. xi.--of some principles in the construction of public lunatic asylums. principles of construction in general use, .--authorities on asylum construction, .--examination of the 'ward system,' .--sketch of the conditions of life in a 'ward,' .--disadvantages of the arrangements, .--the arrangements of a ward vary widely from those of ordinary life, .--day and night accommodation should be quite separate, .--advantages of this plan, .--salubrity, warming, and ventilation promoted, .--economy resulting therefrom, .--means of communication facilitated, .--supervision facilitated, .--classification improved, .--domestic arrangements facilitated, .--management facilitated, .--a smaller staff of attendants required, .--the cost of construction diminished, .--objections to a third story removed, . the state oe lunacy, and the legal provision for the insane. preliminary observations. the number of the insane, and the legal provision requisite for their protection, care, and treatment, are subjects which will always recommend themselves to public attention and demand the interest alike of the political economist, the legislator, and the physician. to the first, the great questions of the prevalence of insanity in the community, its increase or decrease, its hereditary character, and others of the same kind, possess importance in relation to the general prosperity and advance of the nation; to the second devolves the duty of devising measures to secure the protection both of the public and the lunatic, with due regard to the personal liberty, and the proper care and treatment, of the latter; to the last belongs the practical application of many of the provisions of the law, besides the exercise of professional skill in the management and treatment of the insane. moreover it will not be denied that, owing to the intimate manner in which he is concerned with all that relates to the lunatic, with all the details of the laws regulating his custody and general treatment, as well as with the institutions in which he is detained, with the features of his malady, and with all his wants, the physician devoted to the care of the insane is well qualified to offer suggestions and recommendations to the legislator. hence the present pages, in which the aim is to examine the present state of lunacy; the advantages to be gained by early treatment; and the adequacy of the existing legal provision for the insane; and to offer some suggestions for improving the condition, and for amending the laws relating to the care and treatment, of this afflicted class of our fellow-creatures. the whole subject of the efficiency of the lunacy laws and of their administration, occupies just now a prominent place in public attention, owing to the rapid multiplication of county asylums and the constantly augmenting charges entailed by them; to the prevalent impression that insanity is rapidly increasing; to recent agitation in our law courts respecting the legal responsibility of the insane and the conditions under which they should be subjected to confinement, and still more to the proposed legislation on the matter during the present session of parliament. it would be a great desideratum could the lunacy laws be consolidated, and an arrest take place in the almost annual additions and amendments made to them by parliament; but, perhaps, this is next to impracticable, owing to the attempts at any systematic, effectual, and satisfactory legislation for the insane, being really of very recent date, and on that account subject to revisions enforced by experience of its defects and errors. however, the present time appears singularly suited to make the attempt at consolidation, so far as practicable, inasmuch as the appointment of a special committee of the house of commons on the lunacy laws, furnishes the means for a complete investigation into existing defects, and for receiving information and suggestions from those practically acquainted with the requirements of the insane, and with the operations of existing enactments. to fulfil the objects taken in hand, and, in the first place, to sketch the present state of lunacy in this country, it will be necessary to investigate the number of the insane, and the annual rate of their increase; then to examine the extent of the present provision for them in asylums and of probable future wants. this done, after a brief essay on the curability of insanity, as a means of judging what may be done to mitigate the evil, we shall review the present provision for lunatics, point out its defects, and suggest various remedial measures, calculated in our opinion to improve the condition of the insane, diminish the evil of the accumulation of chronic cases, and render asylums more serviceable and efficient. in carrying out our design, we shall be found in some measure occupying ground already taken up by the commissioners in lunacy, and by some able essayists in the medical journals. we do not regret this, although it may deprive us somewhat of the merit of originality of conception and elucidation, as it will strengthen our positions and enhance the value of our remarks. fortunately, too, we coincide generally with the opinions from time to time put forth by the lunacy commissioners, to whom so great merit is due for their labours in the interests of the insane, and for the character and position our county asylums enjoy in the estimation of our own people and of foreign nations. to attempt the character of a reformer when the affairs of lunacy and lunatic asylums are in such good hands may be deemed somewhat ambitious; yet as sometimes an ordinary looker-on may catch sight of a matter which has eluded the diligent observer, and, as the views and suggestions advanced are the result of mature and independent thought, aided by experience of considerable length, and very varied, the undertaking may, we trust, be received with favour. at all events, we flatter ourselves that the representation of the state of lunacy in england and wales; the estimate of its increase and of the provision made for it; the evils of workhouses as primary or permanent receptacles for the insane; the ill consequences of large asylums, and some of the legal amendments proposed, are in themselves subjects calculated to enlist the attention of all interested in the general welfare of our lunatic population, and in the administration of the laws and institutions designed whether for its protection or for its care and treatment. chap. i.--of the number of the insane. this inquiry must be preliminary to any consideration of the provision made or to be made for the insane. in carrying it out, we have chiefly to rely upon the annual reports of the commissioners in lunacy along with, so far as pauper lunatics are concerned, those of the poor-law board. however, these reports do not furnish us with complete statistics, and the total number of our insane population can be only approximately ascertained. the lunacy commission is principally occupied with those confined in public asylums and hospitals, and in licensed houses, and publishes only occasional imperfect returns of patients detained in workhouses or singly in private dwellings. on the other hand, the poor-law board charges itself simply with the enumeration of pauper lunatics supported out of poor-rates, whether in asylums or workhouses, or living with friends or elsewhere. hence the returns of neither of these public boards represent the whole case; and hence, too, the chief apparent discrepancies which occur when those returns are compared. to show this, we may copy the tables presented in appendix h of the report of the commissioners in lunacy for , p. . "increase of lunatics of all classes during the last five years, according to commissioners' reports paupers , , private patients , , ------ ------ , , "according to returns published by poor law board during same period county and borough asylums , , licensed houses , , workhouses , , with friends or elsewhere , , ------ ------ , , ." this very considerable difference of patients between the two estimates is mainly due--as reference to the summary (at p. ) proves--to the omission, on the part of the lunacy commissioners, of those resident in workhouses and "with friends, or elsewhere," reckoned in the table of the poor-law board. this explanation, however, is only partial, for, after allowing for it, the two estimates are found to diverge very considerably. thus, on adding the numbers in the categories last named, viz. + = , in ,--and + = , , in to the total given by the commissioners in each of those years, viz. to , and , , respectively, we obtain a total of , in , and one of , in ; a variation of in the former, and of in the latter year, from the results given in the table presented by the poor-law board. much of this wide difference is explicable by the board last mentioned not having reckoned the private patients, who amounted in to , and in to . still, after all attempts to balance the two accounts, there is a difference unaccounted for, of in , and of in . no clue is given in the official documents to the cause of this discrepancy, and we are left in doubt which estimate of our lunatic population is the more correct. the excess occurs in the commissioners' returns; for on adding together, in each year in question, the numbers reported by the poor-law board, as detained in county and borough asylums and in licensed houses, we find that the totals respectively are less than the whole number of paupers as calculated by the lunacy commissioners, by the precise difference we have made out, viz. in and in . of the two returns before us, we accept that of the lunacy commission, viz. that there were, including those in workhouses, and with friends or elsewhere, , reported lunatics in , and , in ; and account for this larger total by the fact that the poor-law board returns apply only to unions and omit the lunacy statistics of many single parishes, under local acts, and some rural parishes under 'gilbert's act,'--containing in them together above a million and a half people more than are found in unions. moreover, the poor-law board returns do not include county and borough patients. looking to these facts, the excess of in , and of in , over and above the totals quoted from the summary of the poor-law board, is not surprising; indeed, taking the average usually allowed of one lunatic in every , the number in one million and a half would be above ; that is, more than half as many again as ; a result, which would indicate the commissioners' total to be within the truth. we have just used the term 'reported lunatics,' for, besides those under certificates and those returned as chargeable to parishes, comprised in the foregoing numbers, there are very many of whom no public board has cognizance. most such are private patients supported by their own means, disposed singly in the residences of private persons, throughout the length and breadth of the country, and, with few exceptions, without the supervision, in reference to their accommodation and treatment, of any public officer. the lunacy commissioners justly deplore this state of things; lament their inability, under existing acts, to remedy it, and confess that not a tithe of such patients is reported to them, according to the intention of the law ( & vict. cap. . sect. xvi.). it would appear that less than such cases are known to them; and it would not be an extravagant or unwarrantable estimate to calculate their whole number at about half that of the inmates of licensed houses, viz. at . this number would comprise those found lunatic by inquisition, not enumerated in the commissioners' summary, although under the inspection of the "medical visitors of lunatics." according to the returns moved for by mr. tite "of the total number of lunatics in respect of whom commissions in lunacy are now in force," there were, on the th july, , such lunatics, and of them were, according to the commissioners' tables, detained in asylums or licensed houses, leaving not reckoned upon. in addition to this class of the insane there is an unascertained small number of persons of unsound mind in the horde of vagrant paupers, alluded to occasionally in the lunacy commissioners' reports. the number of criminal lunatics in asylums is noted in the returns, but that of those in jails is not reckoned. although this is comparatively small, owing to the usual custom of transferring prisoners, when insane, to asylums, yet, at any one period, a proportion sufficient to figure in a calculation of the whole insane population of the country will always be found. nay more, besides such scattered instances in county prisons, there is a very appreciable number in the government jails and reformatories, as appears from the returns presented to parliament (reports of the directors of convict prisons, .) the prisons included in these reports are:--pentonville, millbank, portland, portsmouth, dartmoor, parkhurst, chatham, brixton, fulham refuge, and lewes. in the course of , persons of unsound mind were confined, some for a longer or shorter period, others for the whole of the year, in one or other of those prisons. making allowance for those of the who by removal from one prison to another (a transfer apparently of common occurrence, the rationale of which we should find it difficult to explain), might be reckoned twice, it may be safely stated that at least were in the prison-infirmaries in question the whole year. in fact, the infirmary of dartmoor prison has wards specially appropriated to insane patients, and actually constitutes a criminal asylum of no insignificant magnitude. for instance, the report tells us that on the st of january, , there remained in that prison cases; that were received during the year; discharged (where, or how, we are not told, except of , who were sent to bethlem hospital); and remained on the st of january . it is also worth noting that in this dartmoor prison infirmary, epileptics remained on january st, ; were admitted, discharged, and remained on january st, . the total of epileptics coming under notice in the infirmaries of the several prisons in question, in the course of , amounted to . the remarks on some of these cases of epilepsy by the medical officers, are sufficient to show that the convulsive malady has seriously affected the mental health, and that they might rightly be placed in the category of the insane. however, having no wish to enhance the proportion of the subjects for lunatic asylums, we will deal only with those enumerated as mentally disordered. these amounted, according to the preceding calculations, in the government prisons, to , and it would seem no exaggerated estimate to assert that an equal number may be found in the various other prisons and reformatories throughout the country. to put the matter in another form, lunatics are to be found in english prisons at any date that a census may be taken. consequently this sum of must be added in calculating the total of insane persons in this kingdom. to establish still further the proposition with which we set out, that our public statistics of insanity are incomplete, the history of every county asylum might be adduced: for, notwithstanding very considerable pains have been taken, on the proposition to build a new asylum, to ascertain the probable number of claimants, and a wide margin over and above that estimate has been allowed in fixing on the extent of accommodation provided, yet no sooner has the institution got into operation, than its doors have been besieged by unheard-of applicants for admission, and within one-half or one-third of the estimated time, its wards have been filled and an extension rendered imperative. such is a _résumé_ of the general history of english county asylums, attested in the strongest manner by that of the middlesex, the lancashire, and the montgomery asylums; and confirmatory of the fact of the augmentation of insanity in the country at a rate exceeding, more or less, that collected from county returns and public statistics. it is, moreover, to be observed, that the official statistics represent the total of lunatics existing on one particular day, usually the first of january, in each year, and take no account of those many who are admitted and discharged within the year, and who rightly should be reckoned in an estimate of the total number of the insane belonging to that period. the average daily number resident in asylums would be a more correct representation of their insane population than the total taken on any one day, although it would fail to show the lunacy of the year. lastly, to illustrate the point discussed, to indicate how imperfect our present estimate of the prevalence of insanity most probably is, and to show the difficulties and defects of any ordinary census, we may appeal to the experience of the special commission charged by the legislature of massachusetts to examine the statistics of lunacy and the condition of asylums in that state, as recorded in their report, published in . "in " (they write, p. ), "a committee of the legislature, appointed to 'consider the whole subject connected with insanity within the commonwealth,' ascertained and reported the number of insane in this state to be , of whom were able to furnish the means of their own support, and were unable to do so, and the pecuniary condition of was not ascertained. "in making that survey in , the commissioners addressed their letters of inquiry 'to the municipal authorities of every city and town in the commonwealth.' "these public officers had direct means of knowing the number and condition of the pauper insane, and probably this part of the report was complete; but they had no other facilities of knowing the condition of those lunatics who were in private families, and supported by their own property or by their friends, than other men not in office, and could only speak of those who were within their circle of personal acquaintance. consequently the report included only a part of the independent insane who were then actually in, or belonged to, the state." "in (p. ), the marshals, the agents of the national government who were appointed to take the census, visited every family; and, among other items of information, they asked for the insane and idiots in the household. "by this personal and official inquiry, made of some responsible member of every family, the marshals obtained the account of only insane persons and idiots, which is but little more than two-thirds of the number ascertained by this commission. "making all due allowance for the increase of population, and consequently of the insane and idiots, these figures undoubtedly show far less than the real amount of lunacy and idiotcy at that time, and render it extremely probable that many concealed the facts that the law required them to state to the marshals." thus the marshals discovered the number of insane to be in nearly double that returned in , and from their apparently searching inquiry, it might have been presumed that they had made a near approximation to the truth in the figures they published. however, the most pains-taking and varied investigations of the special commissioners in , prove the marshals to have much underrated the number, for the result arrived at was, that in the autumn of the year just named, there were lunatics, of whom were idiots, in the state of massachusetts. the partial explanation of the divergence in numbers, viz.:--"that it is probable that many of the families refused or neglected to report to the marshals the insane and idiots who were in their households,"--is of itself an indication of one of the impediments to a correct enumeration of the insane members of a community, even when such is attempted under favourable circumstances. it is one likewise which, however operative in the united states, where the public asylums are open to, and resorted to by, all classes of the community, must be still more so in this country, where family pride endeavours in every way to ignore and keep secret the mental affliction of a member, as though it were a plague spot. besides this, in no english census yet taken, has the enumeration of the insane constituted a special subject of inquiry. this illustration from american experience, coupled with the considerations previously advanced, suffice to demonstrate that the published statistics of insanity in england and wales are incomplete and erroneous, and that the machinery hitherto employed for collecting them has been imperfect. the corollary to this conclusion is, that the number of lunatics mentioned in the public official papers is much below the real one. however, the facts and figures in hand justify the attempt to fix a number which may be taken to represent _approximatively_ the total insane population of this kingdom. in their last report ( ), the english commissioners in lunacy state that, on january st, , there were confined in asylums, hospitals, and licensed houses, , pauper, and private patients, exhibiting an increase of pauper and of private cases upon the returns of the year preceding. pauper lunatics in workhouses are stated ( th annual report of the poor law board, ) to have numbered , and those receiving out-door relief , ; making a total of , . by the kindness of mr. purdy, the head of the statistical department of the poor-law office, we are enabled to explain that it is the custom of the office to reckon pauper lunatics in asylums and licensed houses among those receiving out-door relief; consequently the sum of , comprises both those patients provided for as just specified, and others boarded with their friends or elsewhere. we, however, learn further, from the same excellent authority, that, owing to the imperfection of the periodical returns, only a comparatively small portion of the pauper insane confined in asylums and licensed houses is included in that total. indeed, the fact of its being very much smaller than that of the lunatics in asylums and licensed houses, clearly enough shows that the latter are not reckoned in it except partially. considering that the poor law board obtain no record of the pauper insanity in one million and a half of the population of england and wales, nor of the number of insane belonging to counties and boroughs,--for this reason, that their cost of maintenance is not directly defrayed out of the poor-rates, there must necessarily be a much greater number in workhouses at large than the mentioned, and no inconsiderable proportion of poor lunatics dispersed abroad in the country not enumerated in the counted as existing in january st, . on these grounds, we assume as an approximative figure to represent the total of insane poor not under confinement in asylums and workhouses, believing fully that it will be found, on the publication of the returns for this year ( ), within the mark. private patients not in asylums, or licensed houses, often confined without certificates, and the majority unknown to the lunacy commissioners, we have put down, at a moderate estimate, at . the present state of the law does not enable the commissioners or others to discover these, often, we fear, neglected patients: and, on the other hand, the operation of the laws regulating asylums, and the feeling evoked by certain public trials of individuals confined in licensed houses, have, together, combined to render them more numerous, by inducing friends to keep them at home, to send them abroad to continental institutions, or to place them under the care of private persons or attendants in lodgings. this completes our enumeration; and the figures stand thus, on the st of january, :-- _pauper._ _private._ _total._ in asylums and licensed houses , , , in workhouses , ... , with friends, or elsewhere , , , in prisons, vagrants, &c. ... ------- ------- ------- , , , to extend the estimate to the commencement of the present year ( ), we require to add the gross increase of lunatics during to the total just arrived at: , . what this increase may be cannot be decisively stated; but to anticipate the estimate of it, which we shall presently arrive at, viz. per annum, the result is, that _on the st of january_ there were in england and wales, in round numbers, , persons of unsound mind, or, to employ the legal phraseology, lunatics and idiots. it perhaps should be explained, and more particularly with reference to those detained in workhouses or supported by their parishes at their own houses, that besides idiots, or those congenitally deficient, a very large proportion of them is composed of weak and imbecile folk, who would, in olden times, have been considered and called "fools," and not lunatics, and been let mix with their fellow-men, serve as their sport or their dupes, and exhibit their hatred and revenge by malicious mischief and fiendish cruelty. but, thanks to modern civilization and benevolence, these poor creatures are rightly looked upon as proper objects for the supervision, tending and kindness of those whom providence has favoured with a higher degree of intelligence. this act of philanthropy, effected at a great cost, elevates at the same time, very materially, the ratio of insane persons to the population, and thereby gives cause of alarm at the prevalence of mental disorder, and makes our sanitary statistics contrast unfavourably with those of foreign lands, where the same class of the sick poor has not been so diligently sought out and brought together with a view to their moral and material well-being. chap. ii.--on the increase of insanity. the only data at hand to calculate the gross increase of the insane in this country, year by year, or over a series of years, are those contained in the official reports of the commissioners in lunacy and of the poor-law board. these, as we have just shown in the preceding chapter, are incomplete as records of the state of lunacy, since they take no notice of numerous patients not in recognized asylums. moreover, the annual summary of the returns made by the commissioners of insane patients confined in asylums and licensed houses, represents a compound quantity, made up of the increment by accumulation in past years, and of the fresh cases admitted in any particular year, and remaining at its close. the same is true of the figures supplied by the poor-law board. now, though these summaries are useful to show the rate of accumulation of the insane in the various receptacles for them, annually or over any fixed period, they do not tell us how many persons are attacked by madness in any year, or other space of time; or, in other words, they do not inform us whether there is an actual increase, or a decrease in the annual number of persons becoming insane. this question of the simple increase or decrease of insanity cannot be correctly answered. it is elucidated in some measure, so far as licensed institutions for the insane are concerned, by the tables of admission for different years furnished by the reports of the lunacy commissioners; and it may be assumed to be partially answered by the returns of the number of lunatics in workhouses published by the poor-law board, after an allowance made for the diminution caused by deaths which have taken place in the twelvemonth; but no means whatever exist of discovering the number of persons annually attacked with mental disorder, who do not fall under the cognizance of the public boards. with the materials in hand, let us in the first place examine the results which follow from a comparison of the lunacy statistics of the commissioners, instituted at intervals of more or fewer years. by this course we shall attain, not indeed an estimate of the progressive increase of our insane population, but a valuable comparative return of the number of those enjoying the advantages of asylum care and management in different years. the summary presented in each annual report shows that there were in _males._ _females._ _total._ --private patients , , = , } pauper patients , , = , } = , --private patients , , = , } pauper patients , , = , } = , --private patients , , = , } pauper patients , , = , } = , from these tables it therefore appears that the accumulation of insane persons in asylums in the ten years between and , equalled ; and in the five years between and , ; or progressed at the rate of per annum in the ten years, and of · (or in round numbers ) per annum in the five years under review, or upwards of per cent. faster in the latter space of time. in their twelfth report ( ) the commissioners in lunacy attempt to calculate the probable demands for asylum accommodation on the st of january , from the increased number of lunatics in the space of one year, from january st, , to january st, , amounting to . but as we have pointed out in a paper in the "journal of mental science" (vol. v. , p. ), the conclusion drawn from such data must be fallacious. for instance, a calculation on the result of one year's statistics is evidently worth little. there are many causes at work in asylums which materially affect the relative number of admissions and discharges, and consequently produce an inequality in the rate of increase viewed year by year. moreover, where the same plan of calculation has been adopted in determining what asylum accommodation was necessary, experience has soon exhibited the fallacy, and both the admissions and the demands for admission have far exceeded the total reckoned upon. to arrive at a nearer approximation to the truth, the augmentation in the number of lunatics ought to be noted for a space of several years; and to make the deduction more satisfactory, the increase of the general population, the conditions of the period affecting the material prosperity of the people, and its political aspects; and, lastly, the mere circumstance of the opening of new asylums,--a circumstance always followed by an unexpected influx of patients, need be taken into account. in the preceding considerations only the returns of lunatics in asylums, hospitals, and licensed houses are discussed; but, as we have seen, there is an almost equally large number detained in workhouses, or boarded with their relatives, or other persons, at the expense of their parishes, whose increase or decrease is a matter of kindred importance. on reviewing the returns of their numbers at periods when they have been taken cognizance of by the lunacy commission, we find that there were in workhouses and elsewhere, together, in , _in workhouses._ _with friends and elsewhere._ , , = , , , = , exhibiting an increase of in the ten years between and , and a decrease in the four between and of , owing, doubtless, to the opening of new asylums during that space of time. the returns of the two classes of pauper lunatics together being both so infrequently made, and, as before shown (p. ), open to criticism on account of their incompleteness, we shall attempt to arrive at a more correct estimate of increase than that just made. in the first place, with respect to union workhouses, the summary of indoor paupers, published by the poor law commission ( th report, p. ), affords the necessary data. according to this tabular statement, we find, that, there were on the st of january in each of the ensuing years the following numbers of pauper lunatics:-- , , , , , , , , , , , these columns show, that since the minimum number of insane, at a corresponding date in each year, occurred in . once indeed since, but at a different period of the year, viz. on july st, , the number fell to , or less than at the date before named. two or three years excepted, the increment has been progressive; at one time, indeed, much more rapidly so than at another. the fluctuations observable are, in the first place, due to the opening of new, or the repletion of existing, asylum accommodation; and in a lesser degree, to the rise or fall of pauperism in the community at large, or to an increased mortality at times, as, for example, in , when cholera prevailed--an event which in part, at least, explains the smaller figure of insane inmates in . but whatever the fluctuations observable year by year may be, there is a most distinct increase in the space of any five or ten years selected from the list, suggestive of the unwelcome fact that, notwithstanding the very large augmentation of asylum accommodation and the reduction of numbers by death, the rate of accumulation has proceeded in a ratio exceeding both those causes of decrease of workhouse inmates combined. thus, to take the decennial period between and , we discover an increase of just , or an average annual one of ; and, what is remarkable, as large a total increase, within a few units, is met with in the quinquennial period between and , and consequently the yearly average on the decennial period is doubled; viz. instead of . this doubling of the average in the last five years would be a more serious fact, were it not that in the number of workhouse inmates had been reduced upon , and had only slightly advanced above that of . rejecting the maximum rate of accumulation, we will calculate the average of the last three years cited, from to , a period during which there has been no notable cause of fluctuation, and no such increase of population as materially to affect the result, and for these reasons better suited to the purpose. in this space of time the increment equalled , or an average of per annum; which may fairly be considered to represent the rate of accumulation of lunatics in union workhouses at the present time. the absence of returns of lunatics in the workhouses of parishes under local acts, is an obstacle to a precise computation of them; however, on the assumption that the proportion of lunatics in those workhouses to the population ( , , ) of the parishes they belong to, is equal to that of those in union workhouses to the estimated population ( , , ) of the unions, and that the average increase is proportionate in the two cases, this increase should equal / th of , or somewhat more than , per annum; making the total average rate of accumulation in workhouses at large annually. unfortunately, no separate record is regularly kept of those poor insane persons who are boarded with friends or others, and their number has been only twice published, viz. in and , when, as seen in a preceding page, it was, respectively, and . these two sums exhibit an increase of to have accrued in the ten years included between those dates, or an average one of per annum. we have, above, calculated the average annual increase on those in union workhouses and those with friends, at annually; and consequently that of the latter being , the yearly increase of the former stands, according to the returns employed, at . however, we have proved that the average increase, in union workhouses, has reached in the last three years the amount of , and in workhouses at large , which, added to , produces , or in round numbers, , as the sum-total of accumulation of pauper lunatics not in asylums, hospitals, or licensed houses. adding the annual rate of increase of the insane in asylums, viz. , to that among paupers, unprovided with asylum accommodation, , we obtain the total accumulation per annum of lunatics reported to the public boards. to this sum there should rightly be added the accumulative increase among insane persons not known to those boards, and which, in the absence of any means to ascertain its amount, may be not extravagantly conceived to raise the total to . we come now to the second part of our present task, viz. to discover the comparative number of new cases in several past years, so as to obtain an answer to the question,--has there been an increase of the annual number of persons attacked with lunacy during that period? for previous figures leave no doubt there is an augmented ratio of insane persons in the population of the country. at the outset of this inquiry an insuperable difficulty to a correct registration of the number arises from the circumstance that, during any term of years we may select, the accommodation for the insane has never, even for one year, been fixed, but has been progressively increased by the erection of new, and the enlargement of old asylums. this occurrence, necessarily, very materially affects the returns made by the commissioners of the number of admissions into asylums and licensed houses. even if the comparison of the annual admissions into any one county asylum only, were of value to our purpose, the same difficulty would ensue by reason of the enlargement of the institution from time to time, and of the circumstance that, as it progressively filled with chronic cases, the number of admissions will have grown smaller. likewise, the farther that the inquiry is extended back, the more considerable will this difficulty in the desired computation be. in short, it may be stated generally, that the proportion of admissions will vary almost directly according to the accommodation afforded by asylums, and the inducements offered to obtain it. on the other hand, the consequences of the variations in asylum accommodation upon the total of admissions are to a certain extent compensated for by the fluctuations they produce upon the number of lunatics not provided for in asylums; for this reason, that where a county asylum opens for the reception of patients, the majority of these are withdrawn from licensed houses and workhouses, and thereby a reduction is effected in the number of inmates of those establishments. after the above considerations, it is clear that an estimate of the number of insane persons in any year, as gathered from the statistics of those brought under treatment in asylums or elsewhere, can be only an approach to the truth. still it is worth while to see what results follow from an examination of the returns of admissions, as collected by the commissioners in lunacy. it would be of no service to extend the inquiry far backward in time, on account of the rapidity with which asylum accommodation has been enlarged; we will therefore compare the admissions over the space of four years, viz. , , , and , during which the changes in asylums have been less considerable. _table of admissions._ --county and borough asylums , hospitals licensed houses , ----- total , ----- --county and borough asylums , hospitals licensed houses , ----- total , ----- --county and borough asylums , hospitals licensed houses , ----- total , ----- --county and borough asylums , hospitals licensed houses , ----- total , ----- there is a remarkable degree of uniformity in the sum of admissions in each of these four years; and if each several sum could be taken to represent the accession of new cases of insanity in the course of the year, there would appear no actual progressive increase of the disease in the community during the four years considered. the average of the admissions for that period is ; those therefore of and are in excess, and those of and are within it. the widest difference is observed in , when a sudden rise takes place, which, by the way, is not explicable by the greater provision of asylum accommodation in that year than in the three preceding. yet this increase is not so striking when viewed in relation to the totals of other years; for it exceeds the average only by , a sum little greater than that expressing the decrease of upon the total of . it is difficult to decide what value should be assigned to these results, deducible from a comparison of the yearly admissions, in determining the question of the increase of insanity, viewed simply as that of the comparative number attacked year by year,--it would, however, seem a not unreasonable deduction from them, that the proportion of persons attacked by mental disorder advances annually at a rate little above what the progressive increase of population is sufficient to explain. if this be so, the increase by accumulation of chronic and incurable cases becomes so much the more remarkable, and an investigation of the circumstances promoting, and of those tending to lessen, that accumulation, so much the more important. there are, as heretofore remarked, very many insane persons who are not sent to asylums or private houses, at least to those in this country, and whose relative number yearly it is impossible, in the absence of all specific information, to compute. although the agitation of the public mind respecting private asylums, and the facility and economy of removing insane persons abroad, may have latterly multiplied the number of such unregistered patients, yet there is no reason to assume that their yearly positive increase is other than very small. the pauper lunatics living in workhouses have as yet been omitted from the present inquiry. their yearly number is affected not only by the introduction of fresh cases, but also by removals to asylums and by deaths; or, in other words, it is a compound quantity of new inmates received and of the accumulation of old. however, the returns above quoted (p. ) show that between and there was an increase of almost exactly , or, as before calculated, an average of annually. the poor law board report unfortunately gives no returns of the annual admissions; hence we do not possess the means of discovering what proportion of the growing increase observed is due year by year to the accession of fresh inmates. the advancing growth in numbers of those pauper insane receiving out-door relief is not clearly discoverable: from the few data in possession, as before quoted (p. ), about are annually added. it appears pretty clearly, then, that there are at least reported lunatics added to the insane population of the country yearly, and of this increase only , or in · , are supported out of their own resources in asylums; the remainder, with some few exceptions, falling upon the rates for their entire maintenance. it would therefore be difficult to exaggerate the importance of the question of the provision for the insane poor in this country, both to the political economist and to the legislator. there are certainly more than persons yearly so affected in mind as to be unfit or unable to take care of themselves, and to obtain their own livelihood, and who, under this distressing infliction of providence, demand the care and charity of their neighbours, and the succour of the state, properly to protect and provide for them. to perform this duty at the least cost, compatible with justice to these afflicted individuals, involves a tax upon the community of which few persons have any adequate conception. supposing, by way of illustration, that the number mentioned required the accommodation of an asylum, the cost of providing it, according to the system hitherto in vogue, would nearly equal that incurred in the establishment and maintenance of the middlesex county asylum at colney hatch, or a sum of £ , for land, buildings, and fittings (equal, at per cent. to a yearly rental of £ , ), and an annual charge of £ , for maintenance. the example of colney hatch, chosen for illustration, is a very fair one, and the figures used in round numbers are actually within the average expenditure in and for the establishment of county asylums in this country, as may be seen on reference to appendix d. (commissioners' report, ), and to the table of asylums in course of erection, printed at p. of their twelfth report ( ). on applying these results to the total number of pauper lunatics in asylums, which, according to the return on the st of january , amounted to , , the sum of £ , , (not including interest) will have been expended in providing them accommodation, and an annual charge incurred of £ , for their care and maintenance. all this, too, is independent of the cost on account of those maintained in licensed houses, in workhouses, and in lodgings with friends or others, the amount of which we do not possess sufficient information to determine. the commissioners in lunacy, in their elaborate report in , took the population of england and wales at , , , and reckoned on the existence of , lunatics on the st january of that year, of whom , were paupers. the latter, they calculated, stood in the proportion of to in the population, or, more correctly, in ; and the total lunatics as to . on the st of january , they found the pauper lunatics to be in the proportion of in ; whilst pauper and private together equalled in , to the estimated population, , , . adopting the figures arrived at in the preceding discussion, viz. that there are , insane persons in this country, and assuming the population on the st of january, , to have been , , , the proportion of the insane would be as high as in persons. this much-enlarged ratio of insanity to the population admits of several explanations, without a resort to the belief that the disease is actually and fearfully on the increase. as before said, we regard the accumulation of chronic and incurable lunatics to be the chief element in raising the total number, and this accumulation is favoured by all causes operating against the cure of insanity; by the increased attention to the disease, and by all those conditions improving the value of life of the insane, supplied, at the present day, in accordance with the improved views respecting their wants, and the necessity of placing them under conditions favourable for their health, care and protection. on the operation of these causes, favouring the multiplication of insane persons in the community, we shall, however, not at present further enter, but proceed to inquire how far the existing provision for the insane is adequate to their requirements. before entering on this inquiry, a few words are wanting to convey a suggestion or two respecting the collection of the statistics of pauper lunatics. it is most desirable we should be able to discover, from the official returns of the public boards, with precision, what number of insane persons is wholly or partially chargeable to the poor rates, what to borough, and what to county rates. the returns of the poor-law office ought not to be marred by the omission of the statistics of parishes, which by local or special acts escape the direct jurisdiction of the board. if the central board be denied a direct interference in their parochial administration, it ought to be informed of the number of their chargeable poor, including lunatics. it is equally unsatisfactory, that the pauper registry kept by the poor-law board is not rendered complete by the record of all those chargeable to counties and boroughs, as this could be so readily done by the clerks of county and borough magistrates. an amendment, too, is desirable in the practice of the poor-law office of reckoning together in their tables pauper lunatics in asylums among the recipients of out-door relief with those boarded with their friends or elsewhere, whence it is impossible to gather the proportion of such class. this technicality of considering workhouse inmates as the only recipients of _in-door_ relief, to the exclusion of asylum patients who are in reality receiving it in an equal degree, although in another building than the workhouse, is an official peculiarity we can neither explain nor approve; and it appears to us most desirable that lunatic paupers in asylums should be arranged in a distinct column, and that the same should be done with those living with their friends or others. by the adoption of this plan the questions of the number of the pauper insane, of their increase and decrease, whether in asylums or elsewhere, and of the adequacy of accommodation for them, could be ascertained by a glance at the tables. we would likewise desire to see those paupers belonging to parishes not in union and under local acts, and those chargeable to counties and boroughs, tabulated in a similar manner. a practical suggestion, connected with the statistics of insanity, we owe to mr. purdy, viz. that section of the "lunatic asylums' act, " ( & vict. cap. ) should be amended by the insertion of a few words requiring the clerks of unions to make the returns of the number of chargeable lunatics on a specified day, as on the first of january in each year. this practice was formerly enjoined, and probably its omission from the act now in force was accidental. the present enactment requires that the clerks of unions "shall, on the first day of january in every year, or as soon after as may be, make out and sign a true and faithful list of all lunatics chargeable to the union or parish;" and the only alteration required is the addition of two or three words at the end of this paragraph, such as:--'on the first day of january of that year.' the want of a fixed date of this kind, mr. purdy says, imposes great trouble in getting the clerks to make their returns with reference to the same day in the several unions and parishes. chap. iii.--state of the present provision for the insane in asylums.--its inadequacy. in their report for , the commissioners in lunacy have presented us with a memorandum of the present accommodation afforded in county asylums, and of that in course of being supplied, and have attempted further a calculation of the probable requirements on the st of january . the former may be accepted as nearly correct, but the latter affords, as before noticed, a rough, and not sufficiently accurate, estimate. their statement is, that on the st of january, , , beds were provided in public asylums; that, by the projected enlargement of existing institutions, others would be obtained, and, by the completion of eight asylums in course of erection, there would be added more--a total of , on or before january . of the increase in additional buildings, beds, or thereabouts, would not be ready at so early a date as that named; and in calculating existing provision, need be deducted from the total of , ; consequently the accommodation in county asylums would, according to the commissioners, in this year, , reach , , and in , , . the county asylum accommodation on january st, , expressed by the sum of , , exceeded the total of pauper lunatics returned as actually partaking its advantages at that date, viz. , , by the large number of ; showing a surplus to that amount, including beds, in infirmary wards. what may be the precise number of the last, or, in other words, of those generally inapplicable to ordinary cases, labouring under no particular bodily infirmity, we cannot tell, but we feel sure that of them would be available; in fact, the whole number by classification might be rendered so. be this so or not, the commissioners have omitted any reference to this present available accommodation, in calculating what may be necessary in . on the other hand, they have rather over-estimated the future provision in asylums, by adding together that in the beds., herts., and hunts. asylum now in use, viz. , with that to be secured in the new one, viz. , instead of counting on the difference only, , as representing the actual increase obtained,--for the intention is to disuse the old establishment as a county institution. to proceed. the commissioners calculate on an addition of beds to the number provided in january (according to our correction, in round numbers, ), and proceed to say, that "if to this estimate ... we apply the ratio of increase in the numbers requiring accommodation observable during the last year, some conclusion may be formed as to the period for which these additional beds are likely to be found sufficient to meet the constantly increasing wants of the country, and how far they will tend towards the object we have sought most anxiously to promote ever since the establishment of this commission, namely, the ultimate closing of licensed houses for pauper lunatics. on the st of january, , the number of pauper lunatics in county and borough asylums, hospitals, and licensed houses, amounted to , . on the st of january, , this number had increased to , , showing an increase during the year of patients; and of the total number were confined in the various metropolitan and provincial licensed houses. "assuming, then, that during the next two years the progressive increase in the number of pauper lunatics will be at least equal to that of the year , it follows, that on the st of january, , accommodation for additional patients will be required; and if to this number be added the patients who are now confined in licensed houses, there will remain, to meet the wants of the ensuing year, only vacant beds. it is obvious, therefore, that if licensed houses are to be closed for the reception of pauper lunatics, some scheme of a far more comprehensive nature must be adopted in order to provide public accommodation for the pauper lunatics of this country." this conclusion must indeed be most unwelcome and discouraging to the rate-payers, and to the magistracy, in whose hands the government reposes the duty of providing for the due care of pauper lunatics in county asylums. to the latter it must be most dispiriting, when we reflect on the zeal and liberality which have generally marked their attempts to secure, not merely the necessary accommodation, but that of the best sort, for the insane poor of their several counties. it is, indeed, an astounding statement for the tax-payer to hear, that, after the expenditure of one or two millions sterling to secure the pauper lunatics of this country the necessary protection, care, and treatment, and the annual burden for maintenance, that a far more comprehensive scheme is demanded. no wonder that the increase of insanity is viewed as so rapid and alarming; no wonder that every presumed plan of saving expense by keeping patients out of asylums should be readily resorted to. the value of the conclusion, and of the facts whereon it rests, certainly merit careful examination; and after the investigation made as to the number of the insane, and their rate of increase and accumulation, such an examination can be more readily accomplished. to revert to the figures put forward by the commissioners, of the number of beds existing in asylums on the st of january, , and of that to be furnished by . they reckoned on , beds at the former date, and on the addition of by the year , or a total of , . we have, however, shown, that in january there were vacant beds, and that there was an over-estimate of the future increase by about , leaving, without reckoning the number in progress, to meet coming claims. this sum being therefore added, gives a total of , to supply the wants of the pauper insane between the st of january, , and the completion of the new asylums in . using the average increase adopted by the commissioners, viz. per annum, there would be at the commencement of the year , applicants for admission, to be added to the confined in licensed houses, whom the lunacy commissioners are so anxious to transfer to county institutions, making in all . but according to our corrected valuation, there would be in the course of , room for patients, that is, a surplus accommodation for . it must be admitted as incorrect on the part of the commissioners, in the report just quoted, to calculate on the whole number of beds obtained by new buildings, as available in january , when, in all probability, of them will not be ready much before the close of the year; still, after making allowance for the increased number of claimants accruing between that date and the opening of the new asylums, there would, according to the data used, remain vacancies for some thousand or more, instead of the reckoned upon by the commissioners. our review, therefore, is thus far favourable, and suggestive of the possibility of a breathing time before the necessity of a scheme of a "far more comprehensive nature" need be adopted. but, alas! the inquiries previously gone into concerning the number and increase of the insane render any such hope fallacious, and prove that the commissioners have very much underestimated the number to be duly lodged and cared for in asylums; unless indeed, after having secured the transfer of those now in licensed houses to county asylums, they should consider their exertions on behalf of the unfortunate victims of mental disorder among the poor brought to a close. such an idea, however, is, we are persuaded, not entertained by those gentlemen, who have, on the contrary, in their reports frequently advocated the provision of asylums for all the pauper insane with few exceptions, and distinctly set forth the objections to their detention in workhouses. in fact, every well-wisher for the lunatic poor, is desirous to see workhouses disused as receptacles for them, and it naturally appears more important to transfer some of their inmates to proper asylums than to dislodge those detained in licensed houses, where, most certainly, the means of treatment and management available are superior to those existing in workhouse wards. but our efforts on behalf of the insane poor must not cease even when those in workhouses are better cared for, since there then remains that multitude of poor mentally disordered patients scattered among the cottagers of the country, indifferently lodged, and not improbably, indifferently treated, sustained on a mere pittance unwillingly doled out by poor-law guardians, and under no effectual supervision, either by the parish medical officers or by the members of the lunacy board. some provision surely is necessary for this class of the insane; some effectual watching over their welfare desirable; for the quarterly visits required by law ( & vict. cap. , sect. ) to be made to them by the overworked and underpaid union medical officers cannot be deemed a sufficient supervision of their wants and treatment. these visits, for which the noble honorarium of _s._ _d._ is to be paid, whatever the distance the medical officer may have to travel,--are intended by the clause of the act to qualify the visitor to certify "whether such lunatics are or are not properly taken care of, and may or may not properly remain out of an asylum;" but practically nothing further is attained by them than a certificate that the pauper lunatic still exists as a burden upon the parish funds; and even this much, as the commissioners in lunacy testify, is not regularly and satisfactorily obtained. a proper inquiry into the condition of the patient, the circumstances surrounding him, the mode of management adopted, and into the means in use to employ or to amuse him, cannot be expected from a parish medical officer at the remuneration offered, engaged as he is in arduous duties; and, more frequently than not, little acquainted with the features of mental disease, or with the plans for its treatment, alleviation, or management. even in the village of gheel in belgium, which has for centuries served as a receptacle for the insane, where there is a well-established system of supervision by a physician and assistants, and where the villagers are trained in their management, those visitors who have more closely looked into its organization and working, have remarked numerous shortcomings and irregularities. but compared with the plan of distributing poor demented patients and idiots, as pursued in this country, in the homes of our poorer classes and peasantry, unused to deal with them, too often regarding them as the subjects of force rather than of persuasion and kindness, and under merely nominal medical oversight four times a year, gheel is literally "a paradise of fools." indeed a similar plan might with great advantage be adopted, particularly in the immediate vicinity of our large county asylums. but to return to the particular subject in question, viz. the proportion of insane poor in workhouses and elsewhere who should rightly find accommodation in asylums, a class of lunatics, as said before, not taken into account by the commissioners in their estimate of future requirements. we let pass the inquiry, what should be done for the poor imbecile and idiotic paupers boarded in the homes of relatives or others, and confine our observations to the inmates of workhouses. now, although we entertain a strong conviction of the evils of workhouses as receptacles for the insane, with very few exceptions,--a conviction we shall presently show good grounds for, yet, instead of employing our own estimate, we shall endeavour to arrive at that formed by the lunacy commissioners, of the proportion of lunatics living in them, for whom asylum accommodation should be provided. the principal and special report on workhouses, in relation to their insane inmates, was published in , and in it the commissioners observe (p. ), that they believe they "are warranted in stating, as the result of their experience, that of the entire number of lunatics in workhouses,--two-thirds at the least--are persons in whom, as the mental unsoundness or deficiency is a congenital defect, the malady is not susceptible of cure, in the proper sense of the expression, and whose removal to a curative lunatic asylum, except as a means of relieving the workhouse from dangerous or offensive inmates, can be attended with little or no benefit. a considerable portion of this numerous class, not less perhaps than a fourth of the whole, are subject to gusts of passion and violence, or are addicted to disgusting propensities, which render them unfit to remain in the workhouse.... but although persons of this description are seldom fit objects for a curative asylum, they are in general capable of being greatly improved, both intellectually and morally, by a judicious system of training and instruction; their dormant or imperfect faculties may be stimulated and developed; they may be gradually weaned from their disgusting propensities; habits of decency, subordination, and self-command may be inculcated, and their whole character as social beings may be essentially ameliorated." in their ninth report ( ), speaking of those classed in the workhouse in-door relief lists, under the head of lunatics or idiots, they observe:--"these terms, which are themselves vague and comprehensive, are often applied with little discrimination, and in practice are made to include every intermediate degree of mental unsoundness, from imbecility on the one hand, to absolute lunacy or idiotcy on the other; and, in point of fact, a very large proportion of the paupers so classed in workhouses, especially in the rural districts, and perhaps four-fifths of the whole, are persons who may be correctly described as harmless imbeciles, whose mental deficiency is chronic or congenital, and who, if kept under a slight degree of supervision, are capable of useful and regular occupation. in the remainder, the infirmity of mind is for the most part combined with and consequent upon epilepsy or paralysis, or is merely the fatuity of superannuation and old age; and comparatively few come within the description of lunatics or idiots, as the terms are popularly understood." lastly, in the eleventh report ( ), the class of pauper insane, whose detention in workhouses is allowable, is indicated in the following paragraph:--"they (workhouses) are no longer restricted to such pauper lunatics as requiring little more than the ordinary accommodation, and being capable of associating with the other inmates, no very grave objection rests against their receiving.... but these are now unhappily the exceptional cases." these extracts are certainly not precise enough to enable us to state, except very approximatively, what may be the estimate of the lunacy commissioners of the numbers who should be rightly placed in asylums. that first quoted appears to set aside one-third as proper inmates of a curative asylum, and amenable to treatment; and then to describe a fourth of the remaining two-thirds, that is, one-sixth, as proper objects of asylum care. on adding these quantities, viz. one-third to one-sixth, we get as the result, one-half as the proportion of workhouse insane considered to be fit subjects for asylums. the second quotation by itself is of little use to our purpose, except in conjunction with the third one and with the context, as printed in the report from which it is taken, relative to the general question of the evils of workhouses as receptacles for the insane. so examined in connection, the published statements and opinions of the commission, lead to the conclusion that the great majority of the insane in workhouses should rightly enjoy the advantages of the supervision, general management, nursing, and dietary of asylums. however, to escape the possible charge of attempting to magnify the deficiency of asylum accommodation, we will, for the time, assume that only one-half of the lunatic inmates of workhouses require asylum treatment; even then we had some to be provided with it at the beginning of , and should have at the least by january . having now reduced the estimate of the demands for asylum care to figures, it is practicable to calculate how far those demands can be met by the existing provision in asylums and what may be its deficiency. on the one side, there will be, at the most moderate computation, made as far as possible from data furnished by the reports of the lunacy commissioners, inmates of workhouses, who should, on or before january st, , obtain asylum care and treatment. on the other, there will be, as above shown, about beds unoccupied at the date mentioned, after accommodation is afforded to the pauper residents in licensed houses, and to the number of insane resulting from accumulation and increase in the course of two years from january . the consequence is, that in january , there will remain some pauper lunatics unprovided for in proper asylums. in the course of the preceding arguments, we have kept as closely as possible to data furnished by the lunacy commissioners' reports, and withal have made out, satisfactorily we trust, that the provision supplied by existing asylums and by those now in progress of erection, is inadequate to the requirements of the insane population of this country. the idea of its inadequacy would be very greatly enhanced by the employment of the statistical conclusions we have arrived at respecting the number of the insane and their rate of accumulation, and by the reception of the views we entertain against their detention, with comparatively few exceptions, in other receptacles than those specially constructed and organized for their care and treatment. the truth of our opinions we shall endeavour to establish in subsequent pages; and respecting the rate of accumulation of pauper cases, we feel confident that per annum is within the truth. to meet this increase, both the asylums in existence and those in course of erection are undoubtedly inadequate, and, as the necessary result, workhouse pauper inmates must continue to multiply. if the opinion were accepted that public asylum accommodation should be provided for all the pauper poor, not many more than one-half are at present found to be in possession of it, that is, , of the , in the country. hence it would be required, to more than double the present provision in asylums for pauper lunatics, to give room for all and to meet the rapid annual rate of accumulation. chap. iv.--on the curability of insanity. an inquiry into the curability of insanity forms a natural pendent to that concerning the provision required for the insane, and is at the same time a fitting prelude to an investigation of the insufficiency and defects of the present organization of asylums: for it is important to satisfy ourselves as to what extent we may hope to serve the insane, by placing them under the most advantageous circumstances for treatment, before incurring the large expenditure for securing them. now it may be most confidently stated that insanity is a very curable disorder, if only it be brought early under treatment. american physicians go so far as to assert, that it is curable in the proportion of per cent., and appeal to their asylum statistics to establish the assertion. the lunacy commission of the state of massachusetts (_op. cit._ p. ) thus write:--"in recent cases the recoveries amount to the proportion of to per cent. of all that are submitted to the restorative process. yet it is an equally well-established fact, that these disorders of the brain tend to fix themselves permanently in the organization, and that they become more and more difficult to be removed with the lapse of time. although three-fourths to nine-tenths may be healed if taken within a year after the first manifestation of the disorder, yet if this measure be delayed another year, and the diseases are from one to two years' standing, the cures would probably be less than one-half of that proportion, even with the same restorative means; another and a third year added to the disease diminishes the prospect of cure, and in a still greater ratio than the second; and a fourth still more. the fifth reduces it so low, as to seem to be nothing." dr. kirkbride, physician to the pennsylvania hospital for the insane, in his book "on the construction and organization of hospitals for the insane," says (p. ):--"of recent cases of insanity, properly treated, between and per cent. recover. of those neglected or improperly managed, very few get well." this is certainly a very flattering estimate, and, inasmuch as it is founded on experience, cannot fairly be questioned. however, before comparing it with the results arrived at in this country, there are some circumstances which call for remark. in the first place, american public asylums are not branded with the appellation 'pauper,' they are called 'state asylums,' and every facility is offered for the admission of cases, and particularly of recent ones, whatever their previous civil condition. again, there is not in the united states the feeling of false pride, of imaginary family dishonour or discredit, to the same extent which is observed in this country, when it pleases providence to visit a relative with mental derangement,--to oppose the transmission to a place of treatment. from these two causes it happens that in america the insane ordinarily receive earlier attention than in this country. lastly, the united states' institutions, by being more accessible, admit a certain proportion of cases of temporary delirium, the consequence of the abuse of alcoholic drinks, of overwrought brain and general excitement,--causes more active in that comparatively new, changing, and rapidly-developing country than in ours. but such cases, which for the most part get well, do not find their way into the asylums of this kingdom. such are some of the circumstances influencing favourably the ratio of cures in america, which need be remembered when comparing it with that which is attained in our own land. the proportion of recoveries above stated, is calculated upon cases of less than a year's duration. let us see what can be effected in england under conditions as similar as practicable, though not equally advantageous. the most satisfactory results we can point to are those obtained at st. luke's hospital, london, where the cures have averaged per cent. upon the admissions during the last ten years. at this and likewise at bethlehem hospital, the rules require that the disorder be not of more than one year's duration at the time of application for admission, and that it be not complicated with epilepsy or paralysis, maladies which so seriously affect its curability. such are the conditions favourable to a high rate of recoveries enforced by rule. on the other hand, there are at st. luke's not a few circumstances in operation prejudicial to the largest amount of success possible. its locality is objectionable, its general construction unfavourable, its grounds for exercise and amusement very deficient, and the means of employment few. but apart from these disadvantages, so prejudicial to its utility and efficiency, there are other causes to explain its ratio of success being less than that estimated by our american brethren to be practicable. though the rule excludes patients the benefit of the hospital if their disease be of more than a year's duration, yet from the great difficulties attending in many cases the inquiry respecting the first appearance of the insanity; its sometimes insidious approach; the defect of observation, or the ignorance, and sometimes the misrepresentations of friends, resorted to in order to ensure success in their application to the charity, older cases gain admission. again, of those admitted in any year, there are always several whose disorder is known to be of nine, ten, or eleven months' duration, and at least a fourth in whom it is of six months' date and upwards. further, although the rules exclude epileptics and paralytics, yet at times the history of fits is withheld by the patients' friends, or the fits are conceived to be of a different character, or the paralysis is so little developed as not to be very recognizable; and as in all ambiguous cases,--whether it be the duration or the complication of the mental disorder which is in doubt, the committee of the hospital give the benefit of the doubt to the patient,--the consequence is, that several such unfavourable cases are received annually. on referring to the statistical tables of the institution, these "unfit" admissions are found to amount to per cent. we have thought these details desirable, on the one hand, to account for the difference in the ratio of cures attained in st. luke's compared with that fixed by american writers; and on the other, to show that though the rate of recoveries at that london hospital is highly gratifying, it might be rendered yet more so if certain impediments to success were removed, and that similar benefits could be realized elsewhere if due provision were made for the early and efficient treatment of the malady. were we at all singular in the assertion of the curability of insanity, we should endeavour to establish it by an appeal to the statistics of recoveries among recent cases in the different english asylums; but instead of advancing a novel opinion, we are only bearing witness to a well-recognized fact substantiated by general experience. this being so, it would be fruitless to occupy time in quoting many illustrations from asylum reports: one will answer our purpose. at the derby county asylum, under the charge of dr. hitchman, a high rate of cures has been reached. in the third report that able physician writes (p. ),--"it cannot be too often repeated, that the date of the patient's illness at the time of admission is the chief circumstance which determines whether four patients in a hundred, or seventy patients in a hundred, shall be discharged cured. of the cases which have been admitted into the asylum during the past year, eleven only have been received within a week of the onset of their malady; of these eleven, ten have been discharged cured,--the other has been but a short time under treatment." in his sixth report ( , p. ), the same gentleman observes,--"the cures during the past year have reached per cent. upon the admissions; but the most gratifying fact has been, that of twenty patients, unafflicted with general paralysis, who were admitted within one month of the primary attack of their maladies, sixteen have left the asylum cured,--three are convalescent, and will probably be discharged at the next meeting of the committee, and the other one was in the last stage of pulmonary consumption when she came to the asylum, and died in three weeks after her admission." after this review of what may be effected in restoring the subjects of mental disorder to reason and society, to their homes and occupations, by means of early treatment, it is discouraging to turn to the average result of recoveries on admissions obtained in our county asylums at large. this average may be taken at per cent., and therefore there will remain of every patients admitted, sixty-five, or, after deducting per cent. of deaths, fifty-five at the end of the year. this number, fifty-five, might fairly be taken to represent the annual per centage of accumulation of the insane in asylums, were the data employed sufficient and satisfactory. but so far as we have yet examined the point, this proportion is larger than a calculation made over a series of years, and may be approximatively stated at per cent. on the admissions. how great would be the gain, alike to the poor lunatic and to those chargeable with his maintenance, could this rapid rate of accumulation be diminished, by raising that of recoveries, or, what is tantamount to it, by securing to the insane prompt and efficient care and treatment! how does it happen that this desideratum is not accomplished by the asylums in existence? what are the impediments to success discoverable in their organization and management, or in the history of their inmates prior to admission? and what can be done to remedy discovered defects, and to secure the insane the best chances of recovery? such are some of the questions to be next discussed. chap. v.--on the causes diminishing the curability of insanity, and involving the multiplication of chronic lunatics. in the preliminary chapters on the number and increase of the insane in this country, we limited ourselves to determine what that number and that increase were, and entered into no disquisition respecting the causes which have operated in filling our asylums with so many thousands of chronic and almost necessarily incurable patients. nor shall we now attempt an investigation of them generally, for this has been well done by others, and particularly by the lunacy commissioners in their ninth report, ; but shall restrict ourselves to intimate that the increase of our lunatic population, mainly by accumulation, is due to neglect in past years; to the alteration of the laws requiring the erection of county asylums for pauper lunatics generally; to the collection and discovery of cases aforetime unthought of and unknown; to the extension of the knowledge of the characters and requirements of the insane both among professional men and the public; and, lastly, to the advantages themselves of asylum accommodation which tend to prolong the lives of the inmates. such are among the principal causes of the astounding increase in the number of the insane of late years, relatively to the population of the country, some of which fortunately will in course of time be less productive. those, however, which we now desire to investigate, are such as directly affect the curability of insanity, either by depriving its victims of early and efficient treatment, or by lessening the efficiency and usefulness of the public asylums. the history of an insane patient is clearly divisible into three portions: st, that before admission into an asylum; nd, that of his residence in an asylum; and rd, of that after his discharge from it. the last division we have at present nothing to do with; and with reference to the causes influencing his curability, these group themselves under two heads parallel to the first two divisions of the patient's history; viz. , those in operation external to, and , those prevailing in, asylums. a. _causes external to asylums._ the chief cause belonging to this first class is that of delay in submitting recent cases to asylum care and treatment. this delay, as we have sufficiently proved, operates most seriously by diminishing the curability of insanity, and thereby favours the accumulation of chronic lunatics. it takes place in consequence either of the desire of friends to keep their invalid relatives at their homes; or of the economical notions of poor-law officers, who, to avoid the greater cost of asylums, detain pauper lunatics in workhouses. other causes of incurability and of the accumulation of incurables are found in injudicious management and treatment before admission, and in the transmission of unfit cases to asylums. to discuss the several points suggested in these considerations will require this chapter to be subdivided; and first we may treat of the detention of patients in their own homes. § _detention of patients in their own homes._ although the immense importance of early treatment to recent cases of insanity is a truth so well established and so often advocated, yet the public generally fail to appreciate it, and from unfortunate notions of family discredit, from false pride and wounded vanity, delay submitting their afflicted relatives to efficient treatment. unless the disorder manifest itself by such maniacal symptoms that no one can be blind to its real character, the wealthier classes especially will shut their eyes to the fact they are so unwilling to recognize, and call the mental aberration nervousness or eccentricity; and as they are unwilling to acknowledge the disorder, so are they equally indisposed to subject it to the most effectual treatment, by removing the patient from home, and the exciting influence of friends and surrounding circumstances in general, to a properly organized and managed asylum. usually a patient with sufficient resources at command, is kept at home as long as possible, at great cost and trouble; and if he be too much for the control of his relatives and servants, attendants are hired from some licensed house to manage him; the only notion prevailing in the minds of his friends being that means are needed to subdue his excitement and to overcome his violence. there are, in fact, no curative agencies at work around him, but on the contrary, more or fewer conditions calculated to exalt his furor, to agitate and disquiet his mind, and to aggravate his malady. the master of the house finds himself checked in his will; disobeyed by his servants; an object of curiosity, it may be, of wonder and alarm; and sadly curtailed in his liberty of action. the strange attendants forced upon him are to be yielded to only under passionate protests, and probably after a struggle. in all ways the mental disorder is kept up if not aggravated, and every day the chances of recovery are diminished. perhaps matters may grow too bad for continued residence at home, or the malady have lasted so long, that the broken-up state of family and household can no longer be tolerated, and a transfer from home is necessitated. yet even then removal to an asylum,--the only step which can hold out a fair prospect of recovery, is either rejected as quite out of the question, or submitted to usually after still longer delay,--a "trial" being made of a lodging with a medical man or other person, probably with an asylum attendant. by this plan certainly the patient is saved from the presence and excitement of his family, and placed under altered conditions, calculated to exercise in some respects a salutary influence on his mind; still many others are wanting, and no guarantee is attainable of the manner in which he is treated; for as a single patient, and as is usually the case, restrained without certificates, he is almost invariably unknown to the commissioners, and virtually unprotected, even though a medical man be paid to attend him occasionally. at last, however, except for a few, the transfer to the asylum generally becomes inevitable, and too often too late to restore the disordered reason; and years of unavailing regret fail to atone for time and opportunity lost. the same unwillingness to subject their insane friends to asylum care and treatment pervades, moreover, the less wealthy classes, and even the poorer grades of the middle class of society. madness, to their conceptions likewise, brings with it a stigma on the family, and its occurrence must, it is felt, be kept a secret. hence an asylum is viewed as an evil to be staved off as long as possible, and only resorted to when all other plans, or else the pecuniary means, are exhausted. if it be the father of the family who is attacked, the hope is, that in a few days or weeks he may resume his business or return to his office, as he might after ordinary bodily illness, without such loss of time as shall endanger his situation and prospects, and without the blemish of a report that he has been the inmate of a madhouse. if it be the wife, the hope is similar, that she will shortly be restored to her place and duties in her family. should progress be less evident than desired, a change away from home will probably be suggested by the medical attendant, and at much expense and trouble carried out. but too frequently, alas! the hopes are blighted and the poor sufferer is at length removed with diminished chance of cure to an asylum. for the poorer members of the middle class, and for many moving in a somewhat higher circle of society, whom the accession of mental disorder impoverishes and cuts off from independence, there are, it is most deeply to be regretted, few opportunities of obtaining proper asylum care and treatment. in very many instances, the charges of even the cheapest private asylum can be borne for only a limited period, and thus far, at the cost of great personal sacrifices and self-denial. sooner or later no refuge remains except the county asylum, where, it may be, from the duration of his disorder, the patient may linger out the remainder of his days. how happy for such a one is it--a person unacquainted with the system of english county asylums, might remark--that such an excellent retreat is afforded! to this it may be replied, that the public asylum ought not to be the _dernier ressort_ of those too poor to secure the best treatment and care in a well-found private establishment, and yet too respectable to be classed and dealt with as paupers entirely and necessarily dependent on the poor's rate. yet so it is under the operation of the existing law and parochial usages, there is no intermediate position, and to reap the benefits of the public asylum, the patient must be classed with paupers and treated as one. his admission into it is rendered as difficult, annoying, and degrading as it can be. his friends, worn out and impoverished in their charitable endeavours to sustain him in his independent position as a private patient, are obliged to plead their poverty, and to sue as paupers the parish officials for the requisite order to admit their afflicted relative to the benefits of the public asylum as a pauper lunatic. in short, they have to pauperize him; to announce to the world their own poverty, and to succumb to a proceeding which robs them of their feelings of self-respect and independence, and by which they lose caste in the eyes of their neighbours. as for the patient himself, unless the nature and duration of his malady have sufficiently dulled his perception and sensibilities, the consciousness of his position as a registered pauper cannot fail to be prejudicial to his recovery; opposed to the beneficial influences a well-regulated asylum is calculated to exert, and to that mental calm and repose which the physician is anxious to procure. in the class of cases just sketched, we have presumed on the ability of the friends to incur the cost of private treatment for a longer or shorter period; but many are the persons among the middle classes, who if overtaken by such a dire malady as insanity, are almost at once reduced to the condition of paupers and compelled to be placed in the same category with them. as with the class last spoken of, so with this one, the law inflicts a like injury and social degradation, and at the same time operates in impeding their access to proper treatment. no one surely, who considers the question, and reflects on the necessary consequences of the present legal requirement that, for a lunatic to enjoy the advantages of a public asylum, towards which he may have for years contributed, he must be formally declared chargeable to the rates as a pauper,--can deny the conclusion that it is a provision which must entail a social degradation upon the lunatic and his family, and act as a great impediment to the transmission of numerous recent cases to the county asylum for early treatment. it will be urged as an apology for it, that the test of pauperism rests on a right basis; that it is contrived to save the rate-payer from the charge of those occupying a sphere above the labouring classes, who fall, as a matter of course, upon the parochial funds whenever work fails or illness overtakes them. it is, in two words, a presumed economical scheme. however, like many other such, it is productive of extravagance and loss, and is practically inoperative as a barrier to the practice of imposition. if it contributes to check the admission of cases at their outbreak into asylums, as no one will doubt it does, it is productive of chronic insanity and of permanent pauperism; and, therefore, besides the individual injury inflicted, entails a charge upon the rates for the remaining term of life of so many incurable lunatics. if, on the contrary, our public asylums were not branded by the appellation "pauper;" if access to them were facilitated and the pauperizing clause repealed, many unfortunate insane of the middle class in question, would be transmitted to them for treatment; the public asylum would not be regarded with the same misgivings and as an evil to be avoided, but it would progressively acquire the character of an hospital, and ought ultimately to be regarded as a place of cure, equivalent in character to a general hospital, and as entailing no disgrace or discredit on its occupant. the commissioners in lunacy, in their ninth report ( , p. ), refer to the admissions into county asylums, of patients from the less rich classes of society reduced to poverty by the occurrence of the mental malady, and hint at their influence in swelling the number of the chronic insane, owing to their transfer not taking place until after the failure of their means and the persistence of their disorder for a more or less considerable period. this very statement is an illustration in point; for the circumstance deplored is the result of the indisposition on the part of individuals to reduce their afflicted relatives to the level of paupers by the preliminaries to, and by the act of, placing them in an asylum blazoned to the world as the receptacle for paupers only; an act, whereby, moreover, they advertise to all their own poverty, and their need to ask parish aid for the support of their poor lunatic kindred. on the continent of europe and in the united states of america we obtain ample evidence that the plan of pauperizing patients in order to render them admissible to public asylums, is by no means necessary. most continental asylums are of a mixed character, receiving both paying and non-paying inmates, and care is taken to investigate the means of every applicant for admission, and those of his friends chargeable by law with his maintenance. those who are paid for are called "pensioners" or boarders, and are divided into classes according to the sum paid, a particular section of the asylum being assigned to each class. besides those pensioners who pay for their entire maintenance, there are others whose means are inadequate to meet the entire cost, and who are assessed to pay a larger or smaller share of it. lowest in the scale of inmates are those who are entirely chargeable to the departmental or provincial revenue, being devoid of any direct or indirect means of support. probably the machinery of assessment in the continental states might not accord with english notions and be too inquisitorial for adoption _in toto_; but at all events, on throwing open public asylums for the reception of all lunatics who may apply for it, without the brand of pauperism being inflicted upon them, some scheme of fairly estimating the amount they ought to contribute to their maintenance should be devised. for the richer classes a plan of inquisition into their resources is provided, and there seems no insuperable difficulty in contriving some machinery whereby those less endowed with worldly goods might, at an almost nominal expense, have their means duly examined and apportioned to their own support and that of their families. overseers and relieving officers are certainly not the persons to be entrusted with any such scheme, nor would we advocate a jury, for in such inquiries few should share; but would suggest it as probably practicable that the amount of payment might be adjudged by two or three of the committee of visitors of the asylum with the clerk of the guardians of the union or parish to which the lunatic belonged. in the united states of america, every tax-payer and holder of property is entitled as a tax-payer, when insane, to admission into the asylum of the state of which he is a citizen. he is considered as a contributor to the erection and support of the institution, and as having therefore a claim upon its aid if disease overtake him. the cost of his maintenance is borne by the township or county to which he belongs, and the question of his means to contribute towards it is determined by the county judge and a jury. most of the asylums of the republic also receive boarders at fixed terms, varying according to the accommodation desired; hence there are very few private asylums in the states. in the state of new york there is a special legal provision intended to encourage the early removal of recent cases to the asylum; whereby persons not paupers, whose malady is of less than one year's duration, are admitted without payment, upon the order of a county judge, granted to an application made to him, setting forth the recent origin of the attack and the limited resources of the patient. such patients are retained two years, at the end of which time they are discharged, their friends being held responsible for the removal. their cost in the asylum is defrayed by the county or parish to which they belong. we have said above, that the requirement of the declaration of pauperism is ineffectual in guarding the interests of the rate-payer against the cost of improper applicants. indeed, the proceeding adopted to carry it out is both absurd and useless, besides being, as just pointed out, mischievous in its effects. in the interpretation clause of "the lunatic asylums' act, ," it is ordered that a "pauper shall mean every person maintained wholly or in part by, or chargeable to, any parish, union, or county." hence when insanity overtakes an unfortunate person who is not maintained by a parish or union, it is required that he be made chargeable to one, or, as we have briefly expressed the fact, that he be pauperized. to effect this object, the rule is, that the patient shall reside at least a day and a night in a workhouse. this proceeding, we repeat, carries absurdity on the face of it. either it may be a mere farce privately enacted between the parish officers and the friends of the patient, to the complete frustration of the law so far as the protection of the rate-payers is contemplated; or, it may be made to inflict much pain and annoyance on the applicants by the official obstructiveness, impertinent curiosity, obtuseness, and possible ill-feeling of the parish functionaries in whose hands the law has practically entrusted the principal administration of the details regulating the access to our public asylums. it is no secret among the superintendents of county asylums, that by private arrangements with the overseers or guardians of parishes, cases gain admission contrary to the letter and spirit of the law, and to the exclusion of those who have legally a prior and superior claim. we have, indeed, the evidence of the lunacy commissioners, to substantiate this assertion. in their ninth report ( , p. ) they observe,--"in some districts a practice has sprung up, by which persons, who have never been themselves in receipt of parochial relief, and who are not unfrequently tradesmen, or thriving artisans, have been permitted to place lunatic relations in the county asylums, as pauper patients, under an arrangement with the guardians for afterwards reimbursing to the parish the whole, or part, of the charge for their maintenance. this course of proceeding is stated to prevail to a considerable extent in the asylums of the metropolitan counties, and its effect in occupying with patients, not strictly or originally of the pauper class, the space and accommodations which were designed for others who more properly belong to it, has more than once been made the subject of complaint." desiring, as we do, to see our county asylums thrown open to the insane generally, by the abolition of the pauper qualification, it is rather a subject of congratulation that cases of the class referred to do obtain admission into them, even when contrary to the letter of the law. but we advance the quotation and assertion above to show, that the pauperizing provision of the act is ineffective in the attainment of its object; and to remark, that the opportunities at connivance it offers to parochial officials, must exercise a demoralizing influence and be subversive of good government. if private arrangements can be made between the applicants for an assumed favour, and parish officers, who will undertake to say that there shall not be bribery and corruption? sufficient, we trust, has been said to demonstrate the evils of the present system of pauperizing patients to qualify them for admission into county asylums, and the desirability of opening those institutions to all lunatics of the middle classes whose means are limited, and whose social position as independent citizens is jeopardized by the existence of their malady. this class of persons, as before said, calls especially for commiseration and aid; being so placed, on the one hand, that their limited means must soon fail to afford them the succour of a private asylum; and on the other, with the door of the public institution closed against them, except at the penalty of pauperism and social degradation. what we would desire is, that every recent case of insanity should at once obtain admission into the public asylum of the county or borough, if furnished with the necessary medical certificates and with an order from a justice who has either seen the patient or received satisfactory evidence as to his condition (see remarks on duties of district medical officers), and obtained from the relatives an undertaking to submit to the assessment made by a commission as above proposed, or constituted in any other manner thought better; or the speedy admission of recent cases might otherwise be secured by prescribing their attendance and that of their friends before the weekly committee of the visitors of the asylum, by whom the order for reception might be signed on the requisite medical certificates being produced, and the examination for the assessment of the patient's resources formally made, with the assistance possibly of some representative of the parish interests,--such for instance as the clerk to the board of guardians. in the county courts the judges are daily in the habit of ordering periodical payments to be made in discharge of debts upon evidence offered to them of the earnings or trade returns of the debtor; and there seems no _a priori_ reason against the investigation of the resources of a person whose friends apply for his admission into a county asylum. it is for them to show cause why the parish or county should assume the whole or the partial cost of the patient's maintenance, and this can be done before the committee of the asylum or any private board of inquiry with little annoyance or publicity. rather than raise an obstacle to the admission of the unfortunate sufferer, it would be better to receive him at once and to settle pecuniary matters afterwards. we must here content ourselves with this general indication of the machinery available for apportioning the amount of payment to be made on account of their maintenance by persons not paupers, or for determining their claim upon the asylum funds. yet we cannot omit the opportunity to remark that the proceedings as ordered by the existing statute with a similar object are incomplete and unsatisfactory. these proceedings are set forth in _sects._ xciv. and civ. ( & vict. cap. ). the one section of the act is a twin brother to the other, and it might be imagined by one not "learned in the law," that one of the two sections might with little alteration suffice. be this as it may, it is enacted that if it appear to two justices (_sect._ xciv.) by whose order a patient has been sent to an asylum, or (_sect._ civ.) "to any justice or justices by this act authorized to make any order for the payment of money for the maintenance of any lunatic, that such lunatic" has property or income available to reimburse the cost of his maintenance in the asylum, such justices (_sect._ xciv.) shall apply to the nearest known relative or friend for payment, and if their notice be unattended to for one month, they may authorize a relieving officer or overseer to seize the goods, &c. of the patient, whether in the hands of a trustee or not, to the amount set forth in their order. _sect._ civ. makes no provision for applying to relatives or friends in the first instance, but empowers the justice or justices to proceed in a similar way to that prescribed by _sect._ xciv., to repay the patient's cost; with the additional proviso that, besides the relieving officer or overseer, "the treasurer or some other officer of the county to which such lunatic is chargeable, or in which any property of the lunatic may be, or an officer of the asylum in which such lunatic may be," may proceed to recover the amount charged against him. concerning these legal provisions, we may observe, that the state of the lunatic's pecuniary condition is left to accidental discovery. the justices signing the order of admission (_sect._ xciv.) have no authority given them to institute inquiries, although they may learn by report that the patient for whom admission is solicited is not destitute of the means of maintenance. nor are the justices who make the order for payment (_sect._ civ.) in any better position for ascertaining facts. there is, in short, no authorized and regular process for investigating the chargeability of those who are not actually in the receipt of parochial relief on or before application for their admission into the county asylum, or who must necessarily be chargeable by their social position when illness befalls them. again, according to the literal reading of the sections in question, no partial charge for maintenance can be proposed; no proportion of the cost can be assessed, where the patient's resources are unequal to meet the whole. lastly, the summary process of seizing the goods or property of any sort, entrusted to those who are most probably the informers of the justices, namely overseers and relieving officers; and, by _sect._ civ., carried out without any preliminary notice or application, and without any investigation of the truth of the reports which may reach the justices, is certainly a proceeding contrary to the ordinary notions of equity and justice. § _detention of patients in workhouses._ in the case of the insane poor, whose condition, circumstances, and social position have been such that whenever any misfortune, want of work, or sickness has overtaken them, the workhouse affords a ready refuge, the requirement of pauperization to qualify for admission to the county asylum is in itself no hardship and no obstacle to their transmission to it. probably the prevailing tactics of parish officers may at times contribute to delay the application for relief, but the great obstacle to bringing insane paupers under early and satisfactory treatment in the authorized receptacle for them--the county asylum, is the prevalence of an economical theory respecting the much greater cheapness of workhouse compared with asylum detention. the practical result of this theory is, that generally where a pauper lunatic can by any means be managed in a workhouse, he is detained there. if troublesome, annoying, and expensive, he is referred to the county asylum; this is the leading test for the removal; the consideration of the recent or chronic character of his malady is taken little or no account of. in fresh cases the flattering hope is that the patients will soon recover, and that the presumed greater cost of asylum care can be saved; in old ones the feeling is that they are sufficiently cared for, if treated like the other pauper inmates, just that amount of precaution being attempted which may probably save a public scandal or calamity. to the prevalence of these economical notions and practice may be attributed the large number of lunatics detained in workhouses (nearly ), and the equally large one living with their friends or others. now it is very desirable to inquire whether these theories of the superior economy of workhouses compared with asylums as receptacles for the insane, are true and founded on facts. this question is in itself twofold, and leaves for investigation, first, that of the mere saving in money on account of maintenance and curative appliances; and secondly, that of the comparative fitness or unfitness, the advantages or disadvantages, the profit or loss, of the two kinds of institutions in relation to the welfare, the cure, and the relief of the poor patients placed in them. these questions press for solution in connexion with the subject of the accumulation of lunatics and the means to be adopted for its arrest, or, what is equivalent to this, for promoting the curability of the insane. on making a comparative estimate of charges, it is essential to know whether the same elements of expenditure are included in the two cases; if the calculated cost per head for maintenance in workhouses and asylums respectively comprises the same items, and generally, if the conditions and circumstances so far as they affect their charges are rightly comparable. an examination we are confident, will prove that in no one of these respects are they so. in the first place, the rate of maintenance in an asylum is calculated on the whole cost of board, clothing, bedding, linen, furniture, salaries, and incidental expenditure; that is, on the total disbursements of the establishment, exclusive only of the expenditure for building and repairs, which is charged to the county. on the contrary, the "in-maintenance" in workhouses comprises only the cost of food, clothing, and necessaries supplied to the inmates (see poor-law board tenth report, p. ). the other important items reckoned on in fixing the rate of cost per head in asylums are charged to the "establishment" account of the workhouse, and are omitted in the calculation of the rate of maintenance. reference to the tables given in the poor-law board returns (tenth report, p. , sub-column _e_ and a portion of _f_) will prove that the expenditure on account of those other items must be nearly or quite equal to that comprehended under the head of "in-maintenance" cost. we have no means at hand to calculate with sufficient precision what sum should be added to the "in-maintenance" cost of paupers per head in workhouses, but it is quite clear that the figures usually employed to represent it, cannot be rightly compared with those exhibiting the weekly charge of lunatics in asylums. at the very least half as much again must be added to a workhouse estimate before placing it in contrast with asylum cost. since the preceding remarks were written, dr. bucknill has favoured us with the thirteenth report of the devon asylum, in which he has discussed this same question and illustrated it by a special instance. to arrive at the actual cost of an adult sane pauper in a union-house, he gathered "the following particulars relative to the house of the st. thomas union in which this asylum is placed; a union, the population of which is , , and which has the reputation of being one of the best managed in the kingdom. the cost of the maintenance of paupers in this union-house is _s._ _d._ per head, per week, namely, _s._ _d._ for food and _d._ for clothing. the establishment charges are _s._ - / _d._ per head, per week, making a total of _s._ - / _d._ for each inmate. the total number of pauper inmates during the twelfth week of the present quarter was ; and of these were infants and children, and youths above sixteen and adults. a gentleman intimately acquainted with these accounts, some time since calculated for me that each adult pauper in the st. thomas's union-house cost _s._ a week. now the average cost of all patients in the devon asylum at the present time is _s._ _d._, but of this at least _s._ must be set down to the extra wages, diet, and other expenses needful in the treatment of the sick, and of violent and acute cases, leaving the cost of the great body of chronic patients at not more than _s._ _d._ a week. now if a sane adult pauper in a union-house costs even _s._ _d._ a week, is it probable that an insane one would cost less than _s._ _d._? for either extra cost must be incurred in his care, or he must disturb the discipline of the establishment, and every such disturbance is a source of expense." this quotation is really a reiteration of dr. bucknill's conclusions as advanced in , in an excellent paper in the 'asylum journal' (vol. iv. p. ), and as a pendent to it the following extract from this paper is appropriate; viz. "that the cost of a chronic lunatic properly cared for, and supplied with a good dietary, in a county asylum, is not greater than that of a chronic lunatic supplied with a coarse and scanty dietary, and detained in neglect and wretchedness as the inmate of a union workhouse." another most important circumstance to be borne in mind when the cost of workhouses and asylums is contrasted, is that in the former establishments more than two-thirds of the inmates are children. thus the recipients of in-door relief on the st of january, , consisted, according to the poor-law returns, of , adults, and , children under sixteen years of age. now as the rate of maintenance is calculated on the whole population of a workhouse, adults and children together, it necessarily follows that it falls much within that of asylums, in which almost the whole population is adult. this very material difference in the character of the inmates of the two institutions may fairly be valued as equivalent to a diminution of one-fourth of the expense of maintenance in favour of workhouses; and without some such allowance, the comparison of the cost per head in asylums and union-houses respectively is neither fair nor correct. again, there is another difference between asylums and workhouses, which tells in favour of the latter in an economical point of view, whilst it proves that the expenditure of the two is not rightly comparable without making due allowance for it along with the foregoing considerations. this difference subsists in the character of the two institutions respectively; namely, that in the asylum the movements of the population are slight, whereas in the workhouse they are very considerable by the constant ingress and egress of paupers; driven to it by some passing misfortune or sickness, it may be for a week or two only or even less, and discharging themselves so soon as the temporary evil ceases to operate or the disorder is overcome: for the poor generally, except the old and decrepit who cannot help themselves, both dread a lodging in the workhouse, and escape from it as soon as possible; in fact, even when they have no roof of their own to shelter them, they will often use the union accommodation only partially, leaving it often by day and returning to it by night. all this implies a large fluctuation of inmates frequently only partially relieved, whether in the way of board or clothing; and consequently when the average cost per head of in-door paupers is struck, it appears in a greater or less degree lower than it would have done had the same constancy in numbers and in the duration and extent of the relief afforded prevailed as it does in asylums. the effect of the fluctuations in population in union-houses ought, we understand, to be slight, if the "orders in council" laid down to guide parochial authorities in the calculation of the cost of their paupers, were adhered to; viz. that for all those belonging to any one parish in union, who may have received in-door relief during the year or for any less period of time, an equivalent should be found representing the number who have been inmates throughout the year; or the total extent of relief be expressed by estimating it to be equal to the support of one hypothetical individual for any number of years equivalent to the sum of the portions of time the entire number of the paupers of the particular parish received the benefits of the establishment. we do not feel sure that these plans of calculating the cost per head are faithfully and fully executed; the rough method of doing so, viz. by taking the whole cost of "in-maintenance" at the end of the year and dividing it by the number of its recipients, and assuming the quotient to represent the expenditure for each. whether this be the case or not, these daily changes among its inmates, the frequent absence of many for a great part of the day and the like, are to be enumerated among the circumstances which tend to keep down expenditure of workhouses; and which are not found in asylums. there is yet another feature about workhouses which distinguishes them from asylums, and is of considerable moment in the question of the comparative cost of maintenance in the two: this is, the circumstance of the population of workhouses being of a mixed character, of which the insane constitute merely a small section; while, on the contrary, that of asylums is entirely special, and each of its members to be considered a patient or invalid demanding particular care and special appliances. therefore, _a priori_, no comparison as to their expenditure can justly be drawn between two institutions so dissimilar. yet even this extent of dissimilarity between them is not all that exists; for the union-house is so constituted by law as to serve as a test of poverty; to offer no inducements to pauperism, and to curtail the cost of maintenance as far as possible. it has properly no organization for the detention, supervision, moral treatment and control, nor for the nursing or medical care of the insane; and when its establishment is attempted it is a step at variance with its primary intention, and involves an extra expenditure. consequently, before overseers or guardians can with any propriety contrast the workhouse charges of maintenance with those of asylums, it is their business to estimate what an adult pauper lunatic costs them per week, instead of, as usual, quoting the cost per head calculated on the whole of the inmates, old and young, sane and insane. once more, even after a fair estimate of the cost of an adult insane inmate of a workhouse is obtained, there is still another differential circumstance favourable to a less rate than can be anticipated in asylums; for this reason:--that in the former institutions the practice is to reject all violent cases, the major portion of recent ones, and, generally, all those who give particular annoyance and trouble; whilst the latter is, as it rightly should be, regarded as the fitting receptacle for all such patients;--that is, in other words, those classes of patients which entail the greatest expense are got rid of by the workhouses and undertaken by the asylums. dr. bucknill has well expressed the same circumstances we have reviewed, in the following paragraph (report, devon asylum, , p. ):--"in estimating the cost of lunatic paupers in asylums, the important consideration must not be omitted, that the charge made for the care and maintenance of lunatics in county asylums is averaged upon those whose actual cost is much greater, and those whose actual cost is less than the mean; so that it would be unfair for the overseers of a parish to say of any single patient that he could be maintained for a smaller sum than that charged, when the probability is that there are or have been patients in the asylum from the same parish, whose actual cost to the asylum has been much greater than that charged to the parish. i have shown, that the actual cost of chronic patients in an asylum exceeds that of adult paupers in union-houses to a much smaller extent than has been stated: but if all patients of this description were removed from the asylum, the inevitable result must be that the average cost of those who remained would be augmented, so that the pecuniary result to the parishes in the county would be much the same. the actual cost of an individual patient, if all things are taken into calculation, is often three or four times greater than the average. leaving out of consideration the welfare of the patients, it would be obviously unfair to the community, that a parish having four patients in the asylum, the actual cost of two of whom was _s._ a week, and of the other two only _s._ a week, should be allowed to remove the two who cost the smaller sum, and be still permitted to leave the other two at the average charge of _s._" the conclusion of the whole matter is, that _cæteris paribus_, _i. e._ supposing workhouses to be equally fitting receptacles for the insane as asylums, the differential cost of the two can only be estimated when it is ascertained that the items of maintenance are alike in the two, and after that an allowance is made for the different characters of their population and of their original purpose; that is, in the instance of workhouses, for the very large number of juvenile paupers; for the great fluctuations in the residents; for the mixed character of their inmates, of sane and insane together, and the small proportion of insane, and for the exclusion of the most expensive classes of such patients. let these matters be fairly estimated, and we doubt much if, even _primâ facie_, it can be shown that the workhouse detention of pauper lunatics is more economical than that of properly constructed and organized asylums. should we even be so far successful as to make poor-law guardians and overseers perceive that the common rough-and-ready mode of settling the question of relative cost in asylums and workhouses, by contrasting the calculated rate per head for in-door relief with that for asylum care, is not satisfactory; we cannot cherish the flattering hope that they will be brought to perceive that, simply in an economical point of view, no saving at all is gained by the detention of the insane in workhouses. those poor-law officials generally are so accustomed to haggle about fractional parts of a penny in voting relief, to look at an outlay of money only with reference to the moment, forgetful of future retribution for false economy, and to handle the figures representing in their estimate the economical superiority of the workhouse for the insane, when they desire to silence an opponent;--that the task of proving to them that their theory and practice are wrong, is equivalent to the infelicitous endeavour to convince men against their will. still, however unpromising our attempt may appear, it is not right to yield whilst any legitimate arguments are at hand; and our repertory of them, even of those suited to a contest concerning the pounds, shillings, and pence of the matter, is not quite exhausted; for we are prepared to prove, that asylum accommodation can be furnished to the lunatic poor at an outlay little or not at all exceeding that for workhouses. now this point to be argued, the cost of asylum construction, is not, like the foregoing considerations, chiefly the affair of poor-law guardians and overseers, but concerns more particularly the county magistrates, inasmuch as it is defrayed out of the county instead of the poor rate. but although this is the case, there is no doubt that the very great expense of existing asylums has acted as an impediment to the construction of others, and has seemed to justify, to a certain extent, the improper detention of many insane persons in workhouses: for, on one side, asylums are found to have cost for their construction and fittings, £ , £ , and upwards per head, whilst on the other, workhouses are built at the small outlay, on an average, of eighty-six such establishments, of £ per head. the "return" made to the house of commons, june , , "of the cost of building workhouses in england and wales, erected since ," shows indeed a very wide variation of cost in different places, from £ per head for the congleton union house; £ for the erpingham; £ for the stockton and tenterden, to £ for the kensington; £ for the dulverton; £ for the city of london; £ for st. margaret westminster; and £ for the paddington. this enormous difference of expenditure on workhouse lodging,--for, unlike asylum costs, it does not include fittings, extending from £ to £ per inmate,--is really inexplicable, after allowing for the varying ideas of parish authorities as to what a workhouse should be, and for the slight differences in the cost of building materials and labour in some parts of the country than in others. either some workhouses must be most miserable and defective habitations even for paupers, or others must be very extravagant and needlessly expensive in their structure. there is this much to be said in explanation of the contrast of cost in different workhouses, that in those belonging to large town populations, infirmary accommodation becomes an item of importance and involves increased expenditure, whilst in those situated in agricultural districts, this element of expense is almost wanting. moreover it is in town workhouses generally that lunatic inmates are found, who, if not in the infirmary, are lodged in special wards, often so constructed as to meet their peculiar wants, and therefore more costly than the rest of the institution occupied by the ordinary pauper inmates. this is the same with saying that where workhouses are used as receptacles for the insane, it greatly enhances the cost of their construction. it will be evident to every thinking person that the costs of asylum and of workhouse construction are not fairly comparable. the asylum is a special building; an instrument of treatment; peculiarly arranged for an invalid population, affording facilities for classification, recreation, and amusements; and fitted with costly expedients for warming and ventilation; whereas the workhouse is essentially a refuge for the destitute, necessarily made not too inviting in its accommodation and internal arrangements; suited to preserve the life of sound inmates who need little more than the shelter of a roof and the rude conveniences the majority of them have been accustomed to. now these very characteristics of workhouses are among the best arguments against the detention of lunatics within these buildings; but of these hereafter. there is doubtless a permissible pride in the ability to point to a well-built asylum, commanding attention by its dimensions and architectural merits, and we would be the last to decry the beauties and benefits of architecture, and know too, that an ugly exterior may cost as much or more than a meritorious one; yet we must confess to misgivings that there has been an unnecessary and wasteful expenditure in this direction. nevertheless it is with asylums as with railways, the present race of directors are reaping instruction from the extravagances and errors its predecessors fell into. the change of opinion among all classes respecting the character and wants of the insane and their mode of treatment, is of itself so great, that many of the structural adaptations and general dispositions formerly made at great cost, are felt to be no longer necessary, and the very correct and happy persuasion daily gains ground, that the less the insane are dealt with as prisoners, and treated with apprehension and mistrust, the more may their accommodation be assimilated to that of people in general, and secured at a diminished outlay. all this suggests the possibility of constructing asylums at a much less cost than formerly, and of thereby lessening the force of one of the best pleas for using workhouses as receptacles for the insane. the possibility of so doing has been proved both theoretically and practically. in an essay 'on the construction of public asylums,' published in the "asylum journal" for january (vol. iv. p. ), we advocated the separation of the day- from the night-accommodation of patients, and the abolition of the system of corridors with day- and sleeping-rooms, or, as we briefly termed it, "the ward-system," and showed that by so doing a third of the cost of construction might be saved, whilst the management of the institution would be facilitated, and the position of the patients improved. by a careful estimate, made by a professional architect, with the aid of the necessary drawings, for a building of considerable architectural pretension, it was calculated that most satisfactory, cheerful, and eligible accommodation could be secured, including farm-buildings, and fittings for warming, ventilation, drainage, gas, &c., at the rate of £ per head for patients of all classes, or at one-half of the ordinary cost. experience has shown that chronic lunatics, at least, can be accommodated in an asylum at a lower rate, in fact, at little more than half the expense that we calculated upon. like other county asylums, the devon became filled with patients; still they came, and after attempts to cram more into the original edifice, by slight alterations, and by adding rooms here and there, it was at length found necessary to make a considerable enlargement. instead of adding floors or wings to the old building, which would have called for a repetition of the same original expensive construction of walls, and of rooms and corridors, the committee, with the advice of their excellent physician, wisely determined to construct a detached building on a new plan, which promised every necessary convenience and security with wonderful cheapness; and, for once in a way, an architect's cheap estimate was not exceeded. instead of £ or £ per head, as of old, accommodation was supplied at the rate of £ : _s._ per patient, including fittings for all the rooms and a kitchen:--a marvel, certainly, in asylum construction, and one which should have the effect of reviving the hopes and wishes of justices, once at least so laudably entertained, to provide in county asylums for _all_ pauper lunatics of the county. it is only fair to remark, that, as dr. bucknill informs us (asylum journal, , p. ), this new section of the devon asylum is dependent on the old institution for the residences of officers, for chapel, dispensary, store-rooms, &c. "it is difficult," writes dr. bucknill, "to estimate the proportion which these needful adjuncts to the wards of a complete asylum bear to the expense of the old building; they can scarcely, however, be estimated at so high a figure as one-eighth of the whole." but, as a set-off against the increased cost per patient involved in supplying the necessary offices described by dr. bucknill, we may mention that there are twenty single sleeping-rooms provided in the building, and that a greater cost was thereby entailed, than many would think called for, where only chronic, and generally calm patients, were to be lodged. these illustrations of what may be done in the way of obtaining good asylum accommodation for pauper lunatics at no greater rate, we are persuaded, than that incurred in attempting to provide properly for them in workhouses, furnish a most valid reason for discontinuing their detention in the latter, and the more so, if, as can be demonstrated, they are unfit receptacles for them. the possibility of constructing cheap asylums being thus far proved, the question might be put, whether the internal cost of such institutions could not be lessened? we fear that there is not much room for reform in this matter, if the patients in asylums are rightly and justly treated, and the officers and attendants fairly remunerated. in producing power, an asylum exceeds a workhouse, and therein derives an advantage in diminishing expenditure and the cost of maintenance. on the other hand, the expenditure of a workhouse is much less in salaries, particularly in those given to its medical officer and servants, a form of economy which will never repay, and, we trust, will never be tried in asylums. warming, ventilation, and lighting are less thought of, little attempted, and therefore less expensive items in workhouse than in asylum accounts. with respect to diet and clothing, workhouses ought to exhibit a considerable saving; but this saving is rather apparent than real, and certainly in the wrong direction; for lunatics of all sorts require a liberal dietary, warm clothing, and, from their habits frequently, more changes than the ordinary pauper inmates; yet these are provisions, which, except there is actual sickness or marked infirmity, the insane living in a workhouse do not enjoy; for they fare like the other inmates, are clothed the same, and are tended or watched over by other paupers; the saving, therefore, is at the cost of their material comfort and well-being. excepting, therefore, the gain to be got by the labours of the patients, there is no set-off in favour of asylum charges; in short, in other respects none can be obtained without inflicting injury and injustice. on the other hand, workhouse expenditure need be raised if the requisite medical and general treatment, nursing, dietary, employment, and recreation are to be afforded; which is the same as saying, that workhouses, if receptacles for the insane at all, should be assimilated to asylums,--a principle, which, if admitted and acted upon, overturns at once the only argument for their use as such, viz. its economy. the perception on the part of parochial authorities, that something more than the common lodging and attendance of the workhouse is called for by the insane inmates, has led to the construction of "lunatic wards" for their special accommodation, a scheme which may be characterized as an extravagant mistake, whether viewed in reference to economical principles or the welfare of the patients. if structurally adapted to their object, they must cost as much as a suitable asylum need; and if properly supervised and managed, if a sufficient dietary be allowed, and a proper staff of attendants hired, no conceivable economical advantage over an asylum can accrue. on the contrary, as dr. bucknill has remarked (asylum journal, vol. iv. p. ), any such attempts at an efficient management of the insane in small and scattered asylums attached to union workhouses, will necessarily increase their rate of maintenance above that charged in a large central establishment, endowed with a more complete organization and with peculiar resources for their management. dr. bucknill returns to the discussion of this point in his just published report (rep. devon asylum, , p. ). he puts the question, "would a number of small asylums, under the denomination of lunatic wards, be more economical than one central asylum?" and, thus proceeds to reply to it:--"the great probability is that they would not be; st, on account of the larger proportion of officials they would require; nd, on account of the derangement they would occasion to the severe economy which is required by the aim and purpose of union-houses as tests of destitution. where lunatics do exist in union-houses in consequence of the want of accommodation in the county asylum, the commissioners in lunacy insist upon the provision of what they consider things essential to the proper care of insane persons wherever they be placed. the following are the requirements which they insisted upon as _essential_ in the liverpool workhouse:--a sufficient staff of responsible paid nurses and attendants; a fixed liberal dietary sanctioned by the medical superintendent of the asylum; good and warm clothing and bedding; the rooms rendered much more cheerful and better furnished; the flagged court-yards enlarged and planted as gardens; the patients frequently sent to walk in the country under proper care; regular daily medical visitation; and the use of the official books kept according to law in asylums. if the direct cost of such essentials be computed with the indirect cost of their influence upon the proper union-house arrangements, it will require no argument to prove that workhouse lunatic wards so conducted would effect no saving to the ratepayers. the measures needed to provide in the union-house kitchen a liberal dietary for the lunatic wards and a restricted one for the sane remainder, to control the staff of paid attendants, to arrange frequent walks into the country for part of the community, while the other part was kept strictly within the walls;--these would be inevitable sources of disturbance to the proper union-house discipline, which would entail an amount of eventual expenditure not easily calculated." if, on economical grounds, the system of lunatic wards has no evident merit, none certainly can be claimed for it on the score of its adaptation to their wants and welfare. indeed, the argument for workhouse accommodation, on the plea of economy, loses all its weight when the well-being of the insane is balanced against it. for, if there be any value in the universally accepted opinions of enlightened men, of all countries in europe, of the requirements of the insane, of the desirability for them of a cheerful site, of ample space for out-door exercise, occupation and amusement, of in-door arrangements to while away the monotony of their confinement and cheer the mind, of good air, food and regimen, of careful watching and kind nursing, of active and constant medical supervision and control, or to sum up all in two words, of efficient medical and moral treatment,--then assuredly the wards of a workhouse do not furnish a fitting abode for them. the unfitness of workhouses for the detention of the insane, and the evils attendant upon it, have been repeatedly pointed out by the commissioners in lunacy in their annual reports, and by several able writers. we were also glad to see from the report of his speech, on introducing the lunatic poor (ireland) bill into the house of commons, that lord naas is strongly opposed to the detention of the insane in workhouses, and therein agrees with the irish special lunacy commissioners ( , p. ), who have placed their opinion on record in these words:--"it appears to us that there can be no more unsuitable place for the detention of insane persons than the ordinary lunatic wards of the union workhouses." this is pretty nearly the same language as that used by the english commissioners in , viz. "we think that the detention in workhouses of not only dangerous lunatics, but of all lunatics and idiots whatever, is highly objectionable." to make good these general statements, we will, at the risk of some repetition, enter into a few particulars. on the one hand, the presence of lunatics in a workhouse is a source of annoyance, difficulty, and anxiety to the official staff and to the inmates, and withal of increased expense to the establishment. if some of them may be allowed to mix with the ordinary inmates, there are others who cannot, and whose individual liberty and comfort must be curtailed for the sake of the general order and management, and of the security and comfort of the rest. some very pertinent observations occur in the report of the massachusetts lunacy commission (_op. cit._ p. ), on the mixing of the sane and insane together in the state almshouses, which correspond to our union workhouses. they report that the superintendents "were unanimous in their convictions that the mingling of the insane with the sane in these houses operated badly, not only for both parties, but for the administration of the whole institution." further on, the commissioners observe (p. ), "by this mingling the sane and insane together, both parties are more disturbed and uncontrollable, and need more watchfulness and interference on the part of the superintendent and other officers.... it has a reciprocal evil effect in the management of both classes of inmates. the evil is not limited to breaches of order; for there is no security against violence from the attrition of the indiscreet and uneasy paupers with the excitable and irresponsible lunatics and idiots. most of the demented insane, and many idiots, have eccentricities; they are easily excited and disturbed; and nothing is more common than for inmates to tease, provoke, and annoy them, in view of gratifying their sportive feelings and propensities, by which they often become excited and enraged to a degree to require confinement to ensure the safety of life.... the mingling of the state paupers, sane and insane, makes the whole more difficult and expensive to manage. it costs more labour, watchfulness, and anxiety to take care of them together than it would to take care of them separately." these sketches from america may be matched in our own country; and they truthfully represent the reciprocal disadvantages of mixing the sane and insane together in the same establishment. even supposing the presence of insane in workhouses involved, on the one hand, no disadvantages to the institutions, or to the sane inmates; yet on the other, the evils to the lunatic inhabitants would be condemnatory of it; for the insane necessarily suffer in proportion as the workhouse accommodation differs from that of asylums; or, inversely, as the economical arrangements and management of a workhouse approach those of an asylum. they suffer from many deficiencies and defects in locality and organization, in medical supervision and proper nursing and watching, in moral discipline, and in the means of classification, recreation, and employment. workhouses are commonly town institutions; their locality often objectionable; their structure indifferent and dull; their site and their courts for exercise confined and small, and their means of recreation and of occupation, especially out of doors, very limited. petty officers of unions so often figure before the world, and have been so admirably portrayed by dickens and other delineators of character, on account of their peculiarities of manner and practice, that no sketch from us is needed to exhibit their unfitness as guardians and attendants upon the insane. as to workhouse nurses, little certainly can be expected from them, seeing that they are only pauper inmates pressed into the service; if aged, feeble and inefficient; if young, not unlikely depraved or weak-minded; always ignorant, and it may be often cruel; without remuneration or training, and chosen with little or no regard to their qualifications and fitness. however satisfactory the structure of the ward and its supervision might be rendered, its connexion with a union workhouse will be disadvantageous to the good government and order of the establishment, as above noticed, and detrimental to the welfare of the insane confined in it. thus it must be remembered that very many of the lunatic inmates have been reduced to seek parochial aid solely on account of the distressing affliction which has overtaken them; before its occurrence, they may have occupied an honourable and respectable position in society, and, consequently, where consciousness is not too much blunted, their position among paupers--too often the subjects of moral degradation--must chafe and pain the disordered mind and frustrate more or less all attempts at its restoration. to many patients, therefore, the detention in a workhouse is a punishment superadded to the many miseries their mental disorder inflicts upon them; and consequently, when viewed only in this light, ought not to be tolerated. of all cases of lunacy, the wards of a workhouse are least adapted to recent ones, for they are deficient of satisfactory means of treatment, whether medical or moral, and the only result of detention in them to be anticipated, must be to render the malady chronic and incurable. yet although every asylum superintendent has reported against the folly and injury of the proceeding, and notwithstanding the distinct and strong condemnation of it by the commissioners in lunacy, the latter, in their report for , have to lament an increasing disposition, on the part of union officers, to receive and keep recent cases in workhouses. moral treatment we hold to be impossible in an establishment where there are no opportunities of classification, no proper supervision and attendance, and no means for the amusement and employment of the mind; but where, on the contrary, the place and organization are directly opposed to it, and the prospects of medical treatment are scarcely less unfavourable. an underpaid and overworked medical officer, in his hasty visits through the wards of the workhouse daily, or perhaps only three or four times a week, very frequently without any actual experience among the insane, cannot be expected to give any special attention to the pauper lunatics, who are mostly regarded as a nuisance in the establishment, to be meddled with as little as possible, and of whose condition only unskilled, possibly old and unfeeling pauper nurses, can give any account. indeed, unless reported to be sick, it scarcely falls into the routine of the union medical officer regularly to examine into the state and condition of the pauper lunatics. these remarks are confirmed by the statement of the lunacy commissioners, in their 'further report,' (p. ), that pauper inmates, "in their character of lunatics merely, are rarely the objects of any special medical attention and care," and that it "was never found (except perhaps in a few cases) that the medical officer had taken upon himself to apply remedies specially directed to the alleviation or cure of the mental disorder. nor was this indeed to be expected, as the workhouse never can be a proper place for the systematic treatment of insanity." it would unnecessarily extend the subject to examine each point of management and organization affecting the well-being of the insane in detail, in order to show how unsuitable in all respects a workhouse must be for their detention; yet it may be worth while to direct attention to one or two other matters. except when some bodily ailment is apparent, the lunatic fare like the ordinary inmates; that is, they are as cheaply fed as possible, without regard to their condition as sufferers from disease, which, because mental, obtains no special consideration. it is in the power of the medical officer, on his visits, to order extra diet if he observes any reason in the general health to call for it; but the dependent position of this gentleman upon the parish authorities, and his knowledge that extra diet and its extra cost will bring down upon him the charge of extravagance and render his tenure of office precarious, are conditions antagonistic to his better sentiments concerning the advantages of superior nutriment to his insane patients. moreover, the cost of food is a principal item in that of the general maintenance of paupers, and one wherein the guardians of the poor believe they reap so great an economical advantage over asylums. but this very gain, so esteemed by poor-law guardians, is scouted as a mistake and proved an extravagance, _i. e._ if the life and well-being of the poor lunatics are considered, by the able superintendents of county asylums. dr. bucknill has well argued this matter in a paper "on the custody of the insane poor" (asylum journal, vol. iv. p. ), and in the course of his remarks says,--"the insane cannot live on a low diet; and while they continue to exist, their lives are rendered wretched by it, owing to the irritability which accompanies mental disease. the assimilating functions in chronic insanity are sluggish and imperfect, and a dietary upon which sane people would retain good health, becomes in them the fruitful source of dysentery and other forms of fatal disease." in his just published report, already quoted, the same excellent physician remarks (p. ),--"a good diet is essential to the tranquil condition of many idiots and chronic lunatics, and is, without doubt, a principal reason why idiots are easily manageable in this asylum, who have been found to be unmanageable in union houses. the royal commission which has recently reported on the lunatic asylums in ireland states this fact broadly, that 'the ordinary workhouse dietary is unsuited and insufficient for any class of the insane.' it is therefore my opinion, founded upon the above considerations, that neither the lunatics nor the idiots in the list presented are likely to retain their present state of tranquillity, and to be harmless to themselves and others, if they are placed in union houses, unless they are provided with those means which are found by experience to ensure the tranquillity of the chronic insane, and especially with a sufficient number of trustworthy attendants, and with a dietary adapted to their state of health. i have thought it desirable to ascertain the practice of charitable institutions especially devoted to the training of idiots, and i find that a fuller dietary is used in them than in this asylum." until a recent date, it was the custom in workhouses, with few exceptions, to allow most of their insane inmates to mingle with the ordinary pauper inmates of the same age and sex, and in general to be very much on the same footing with them "in everything that regards diet, occupation, clothing, bedding, and other personal accommodation" (report, , p. ). this mingling of the sane and insane, having been found subversive of good order and management, gave rise first to the plan of placing most of the latter class in particular wards, many of them in the infirmary, and, subsequently, owing to the advance of public opinion respecting the wants of the insane, to the construction, in many unions, of special lunatic wards, emulating more or less the character and purposes of asylums. the false economy of this plan has been already exposed; and although the lunacy commissioners have always set their faces against lunatic wards, yet their construction has of late been so rapid as to call forth a more energetic denunciation of it:--"impressed strongly (the commissioners write, report, , p. ) with a sense of their many evils, it became our duty, during the past year, to address the poor-law board against the expediency of affording any encouragement or sanction to the further construction, in connexion with union workhouses, of lunatic wards." the evils of lunatic wards, alluded to in the last-quoted paragraph, are thus enlarged upon in another page of the same report (p. ):--"it is obvious that the state of the workhouses, as receptacles for the insane, is becoming daily a subject of greater importance. they are no longer restricted to such pauper lunatics as,--requiring little more than the ordinary accommodation, and being capable of associating with the other inmates,--no very grave objection rests against their receiving. indeed it will often happen that residence in a workhouse, under such conditions, is beneficial to patients of this last-mentioned class; by the inducements offered, from the example of those around them, to engage in ordinary domestic duties and occupations, and so to acquire gradually the habit of restraining and correcting themselves. but these are now unhappily the exceptional cases. many of the larger workhouses, having lunatic wards containing from to inmates, are becoming practically lunatic asylums in everything but the attendance and appliances which ensure the proper treatment, and above all, in the supervision which forms the principal safeguard of patients detained in asylums regularly constituted. "the result is, that detention in workhouses not only deteriorates the more harmless and imbecile cases to which originally they are not unsuited, but has the tendency to render chronic and permanent such as might have yielded to early care. the one class, no longer associating with the other inmates, but congregated in separate wards, rapidly degenerate into a condition requiring all the attendance and treatment to be obtained only in a well-regulated asylum; and the others, presenting originally every chance of recovery, but finding none of its appliances or means, rapidly sink into that almost hopeless state which leaves them generally for life a burthen on their parishes. nor can a remedy be suggested so long as this workhouse system continues. the attendants for the most part are pauper inmates, totally unfitted for the charge imposed upon them. the wards are gloomy, and unprovided with any means for occupation, exercise, or amusement; and the diet, essential above all else to the unhappy objects of mental disease, rarely in any cases exceeds that allowed for the healthy and able-bodied inmates." the subject had previously received their attention, and is thus referred to in their ninth report (p. ):--"they are very rarely provided with any suitable occupation or amusement for the inmates. the means of healthful exercise and labour out of doors are generally entirely wanting, and the attendants (who are commonly themselves paupers) are either gratuitous, or so badly organized and so poorly requited, that no reliance can be placed on the efficiency of their services. in short, the wards become in fact places for the reception and detention of lunatics, without possessing any of the safeguards and appliances which a well-constructed and well-managed lunatic asylum affords. your lordship, therefore, will not be surprised to learn that while we have used our best endeavours to remedy their obvious defects and to ameliorate as far as possible the condition of their inmates, we have from the first uniformly abstained from giving any official sanction or encouragement to their construction." they further make this general observation:--"so far as the lunatic and idiotic inmates are concerned, the condition of the workhouses which have separate wards expressly appropriated to the use of that class, is generally inferior to that of the smaller workhouses, and in some instances extremely unsatisfactory." dr. bucknill, whose excellent remarks on lunatic wards in their economical aspect we have already quoted, has very ably canvassed the question of their fitness as receptacles for the insane, and, in a paper in the 'asylum journal' (vol. iii. p. ), thus treats on it:--"it is deserving of consideration, whether the introduction of liberally-conducted lunatic wards into a union workhouse would not interfere with the working of the latter in its legitimate scope and object. a workhouse is the test of destitution. to preserve its social utility, its economy must always be conducted on a parsimonious scale. no luxuries must be permitted within its sombre walls; even the comforts and conveniences of life must be maintained in it below the average of those attainable by the industry of the labouring poor. how can a liberally-conducted lunatic ward be engrafted upon such a system? it would leaven the whole lump with the taint of liberality, and the so-called pauper bastile would, in the eyes of the unthrifty and indolent poor, be deprived of the reputation which drives them from its portals." there is a general concurrence among all persons competent to form any opinion on the matter, that workhouses are most unfit places for the reception of recent cases of insanity. on the other hand, there is a prevalent belief that there is a certain class of the insane, considered "harmless," for whom such abodes are not unsuitable. the lunacy commissioners, in the extract from the eleventh report above quoted, partake in this opinion: let us therefore endeavour to ascertain, as precisely as we can, the class of patients intended, and the proportion they bear to the usual lunatic inmates of union workhouses. in their 'further report' for , the commissioners enter into a particular examination of the characters of the lunatics found in workhouses, and class them under three heads (p. ):-- st, those who, from birth, or from an early period of life, have exhibited a marked deficiency of intellect as compared with the ordinary measure of understanding among persons of the same age and station; ndly, those who are demented or fatuous; that is to say, those whose faculties, not originally defective, have been subsequently lost, or become greatly impaired through the effects of age, accident, or disease; and rdly, those who are deranged or disordered in mind, in other words, labouring under positive mental derangement, or, as it is popularly termed, "insanity." those in whom epilepsy or paralysis is complicated with unsoundness of mind, although their case requires a separate consideration, do not in strictness constitute a fourth class, but may properly be referred, according to the character of their malady and its effects upon their mental condition, to one or other of these three classes. further on in the report, after remarking on the difficulties besetting their inquiry, they write (p. ):-- "we believe, however, we are warranted in stating, as the result of our experience thus far, that of the entire number of lunatics in workhouses, whom we have computed at or thereabouts, two-thirds at the least, or upwards of , would be properly placed in the first of the three classes in the foregoing arrangement; or, in other words, are persons in whom, as the mental unsoundness or deficiency is a congenital defect, the malady is not susceptible of cure, in the proper sense of the expression; and whose removal to a curative lunatic asylum, except as a means of relieving the workhouse from dangerous or offensive inmates, can be attended with little or no benefit. "a considerable portion of this numerous class, not less, perhaps, than a fourth of the whole, are subject to gusts of passion and violence, or are addicted to disgusting propensities, which render them unfit to remain in the workhouse; and it is the common practice, when accommodation can be procured, to effect the removal of such persons to a lunatic asylum, where their vicious propensities are kept under control, and where, if they cannot be corrected, they at least cease to be offensive or dangerous. but although persons of this description are seldom fit objects for a curative asylum, they are in general capable of being greatly improved, both intellectually and morally, by a judicious system of training and instruction; their dormant or imperfect faculties may be stimulated and developed; they may be gradually weaned from their disgusting propensities; habits of decency, subordination, and self-command may be inculcated, and their whole character as social beings may be essentially ameliorated." the conclusion to be deduced from these extracts is, that one-fourth or two-thirds, that is, one-sixth of the whole number of occupants in workhouses of unsound mind, found in , were unfit for those receptacles, and demanded the provision of institutions in which a moral discipline could be carried out, and their whole condition, as social beings, ameliorated and elevated. a further examination of the data supplied in the same report will establish the conviction that, besides the proportion just arrived at, requiring removal to fitting asylums, there is another one equally large demanding the same provision. in this number are certainly to be placed all those of the third class "labouring under positive mental derangement," and who, although reported as "comparatively few" in , have subsequently been largely multiplied, according to the evidence of the 'eleventh report' (_ante_, p. ). those, again, "in whom epilepsy or paralysis is complicated with unsoundness of mind," are not suitable inmates for workhouse wards. no form of madness is more terrible than the furor attendant on epileptic fits; none more dangerous; and, even should the convulsive affection have so seriously damaged the nervous centres that no violence need be dreaded, yet the peril of the fits to the patient himself, and their painful features, render him an unfit inmate of any other than an establishment provided with proper appliances and proper attendants. as to the paralytic insane, none call for more commiseration, or more careful tending and nursing--conditions not commonly to be found in workhouses. the commissioners in lunacy have not omitted the consideration of workhouses as receptacles for epileptics and paralytics, and have arrived at the following conclusions:--after treating, in the first place, of epileptics whose fits are slight and infrequent, and the mental disturbance mild and of short duration, they observe that, as such persons "always require a certain amount of supervision, and as they are quite incompetent, when the fits are upon them, to take care of themselves, and generally become violent and dangerous, it would seem that the workhouse can seldom be a suitable place for their reception, and that their treatment and care would be more properly provided for in a chronic hospital especially appropriated to the purpose." concerning paralytics, they state that they are far less numerous than epileptics, and being for the most part helpless and bedridden, are treated as sick patients in the infirmary of the workhouse. their opinion is, however, that a chronic hospital would be a more appropriate receptacle for them,--a conclusion in which all must coincide, who know how much can be done to prolong and render more tolerable their frail and painful existence, by good diet and by assiduous and gentle nursing,--by such means, in short, as are not to be looked for in establishments where rigid economy must be enforced, and pauper life weighed against its cost. to turn now to the second class of workhouse lunatic inmates, the demented from age, accident, or disease: these, we do not hesitate to say, are not suitably accommodated in workhouses, for, like the paralytic, they require careful supervision, good diet and kind nursing; they are full-grown children, unable to help or protect themselves, to control their habits and tendencies; often feeble and tottering, irritable and foolish, and, without the protection and kindness of others, the helpless subjects of many ills. for such, the whole organization of the workhouse is unsuited; even the infirmary is not a fitting refuge; for, on the one hand, they are an annoyance to the other inmates, and, on the other, pauper nurses--whose office is often thrust upon them without regard to their fitness for it,--are not fitting guardians for them. in fine, where age, accident or disease has so deteriorated the mental faculties, we have a complication of physical and mental injury to disqualify the patient from partaking with his fellow-paupers in the common accommodation, diet, and nursing. in the reverse order which we have pursued, the first class of congenital, imbecile, and idiotic inmates comes to be considered last. this happens by the method of exclusion adopted in the argument; for the second and third classes have been set aside as proper inmates of some other institution than a workhouse, and it now remains to inquire, who among the representatives of the first class are not improperly detained in workhouses. this class includes, as already seen, some two-thirds of the whole number of inmates mentally disordered; and among whom, we presume, are to be found those individuals who may, in the commissioners' opinion, mix advantageously with the general residents of the establishment. the number of the last cannot, we believe, be otherwise than very small; for the very supposition that there is imbecility of mind, is a reason of greater or less force, according to circumstances, for not exposing them to the contact of an indiscriminate group of individuals, more especially of that sort to be generally found in workhouses. the evils of mingling the sane and insane in such establishments have already been insisted upon; and besides these, such imbecile patients as are under review, lack in workhouses those means of employment and diversion which modern philanthropy has suggested to ameliorate and elevate their physical and moral condition. lastly, if the remaining members of this class be considered, in whom the imbecility amounts to idiocy, the propriety of removing them from the workhouse will be questioned by few. indeed, will any one now-a-days advocate the "_laissez faire_" system in the case of idiots? experience has demonstrated that they are improveable, mentally, morally, and physically; and if so, it is the duty of a christian community to provide the means and opportunities for effecting such improvement. it cannot be contended that the workhouse furnishes them; on the contrary, it is thoroughly defective and objectionable by its character and arrangements, and, as the commissioners report, (_op. cit._ p. ) a very unfit abode for idiots. on looking over the foregoing review of the several classes of lunatic inmates of workhouses distinguished by the commissioners in lunacy, the opinion to be collected clearly is, that only a very few partially imbecile individuals among them are admissible into workhouses, if their bodily health, their mental condition, their due supervision and their needful comforts and conveniences are to be duly attended to and provided for. in accordance with the views we entertain, as presently developed, of the advantages of instituting asylums for confirmed chronic, quiet, and imbecile patients, we should permit, if any at all, only such imbecile individuals as residents in workhouses, who could pass muster among the rest, without annoyance, prejudice or discomfort to themselves or others, and be employed in the routine occupations of the establishment. so much is heard among poor-law guardians and magistrates about a class of "harmless patients" suitably disposed of in workhouses and rightly removeable from asylums, that a few remarks are called for concerning them. to the eye of a casual visitor of an asylum, there does certainly appear a large number of patients, so quiet, so orderly, so useful and industrious, that, although there is something evidently wrong about their heads, yet the question crosses the mind, whether asylum detention is called for in their case. the doubt is not entertained by the experienced observer, for he knows well that the quiet, order, and industry observable are the results of a well-organized system of management and control; and that if this fails, the goodly results quickly vanish to be replaced by the bitter fruits generated by disordered minds. the "harmless" patient of the asylum ward becomes out of it a mischievous, disorderly, and probably dangerous lunatic. in fact, the tranquillity of many asylum inmates is subject to rude shocks and disturbances, even under the care and discipline of the institution; and the inoffensive-looking patient of to-day may, by his changed condition, be a source of anxiety, and a subject for all the special appliances it possesses, to-morrow. any asylum superintendent would be embarrassed to select a score of patients from several hundred under his care whom he could deliberately pronounce to be literally "harmless" if transferred to the workhouse. he might be well able to certify that for months or years they have gone on quietly and well under the surrounding influences and arrangements of the asylum, but he could not guarantee that this tranquillity should be undisturbed by the change to the wards of the workhouse; that untrained attendants and undesirable associates should not rekindle the latent tendency to injure and destroy; that defective organization and the absence of regular and regulated means of employment and recreation should not revive habits of idleness and disorder; or that a less ample dietary, less watchfulness and less attention to the physical health, should not aggravate the mental condition and engender those disgusting habits, which a good diet and assiduous watching are known to be the best expedients to remedy. dr. bucknill has some very cogent remarks on this subject in his last report of the devon asylum (p. ). "the term 'harmless patients,' or in the words of the statute, those 'not dangerous to themselves or others' (he writes), i believe to be inapplicable to any insane person who is not helpless from bodily infirmity or total loss of mind: it can only with propriety be used as a relative term, meaning that the patient is not so dangerous as others are, or that he is not known to be refractory or suicidal. it should not be forgotten, that the great majority of homicides and suicides, committed by insane persons, have been committed by those who had previously been considered harmless; and this is readily explained by the fact, that those known to be dangerous or suicidal are usually guarded in such a manner as to prevent the indulgence of their propensities; whilst the so-called harmless lunatic or idiot has often been left without the care which all lunatics require, until some mental change has taken place, or some unusual source of irritation has been experienced, causing a sudden and lamentable event. in an asylum such patients may truly be described as not dangerous to themselves or others, because they are constantly seen by medical men experienced in observing the first symptoms of mental change or excitement, and in allaying them by appropriate remedies; they are also placed under the constant watchfulness and care of skilful attendants, and they are removed from many causes of irritation and annoyance to which they would be exposed if at large, in villages or union houses. "it not unfrequently happens that idiots who have lived for many years in union houses, and have always been considered harmless and docile, under the influence of some sudden excitement, commit a serious overt act, and are then sent to an asylum. one of the most placid and harmless patients in this asylum, who is habitually entrusted with working tools, is a criminal lunatic, of weak intellect, who committed a homicide on a boy, who teased him while he was breaking stones on the road. if this is the case with those suffering only from mental deficiency, it is evidently more likely to occur in those suffering from any form of mental disease, which is often liable to change its character, and to pass from the form of depression to one of excitement. for these reasons i am convinced that all lunatics, and many strong idiots, can only be considered as 'not dangerous to themselves or others,' when they are placed under that amount of superintendence and care which it has been found most desirable and economical to provide for them in centralized establishments for the purpose. "for the above reasons, i am unable to express the opinion that any insane patients who are not helpless from bodily infirmity or total loss of mind are _unconditionally_ harmless to themselves and others. i have, however, made out a list of sixty patients who are incurable, and who are likely, _under proper care_, to be harmless to themselves and others. "of the patients in this list who are lunatic, only nine have sufficient bodily strength to be engaged in industrial pursuits. the remaining twenty-three are so far incapacitated by the infirmities of old age, or by bodily disease, or by loss of mental power, that they are unable to be employed, and require careful nursing and frequent medical attendance. the patients who have sufficient bodily strength to be employed, are also with the least degree of certainty to be pronounced harmless to themselves and others. as the result of long training, they willingly and quietly discharge certain routine employments under proper watch; but it is probable, that if removed from their present position, any attempts made to employ them by persons unaccustomed to the peculiarities of the insane, will be the occasion of mental excitement and danger. "the twenty-eight idiots have, with few exceptions, been sent to the asylum from union houses, where it has been found undesirable to detain them, on account either of their violent conduct, or of their dirty habits, or some other peculiarity connected with their state of mental deficiency; habits of noise or indecency for instance." probably the following extract from the report of the committee of the surrey asylum ( ) may have more weight with some minds than any of the arguments and illustrations previously adduced, to prove that the detention of presumed "harmless patients" in workhouses will not answer. the declaration against the plan on the part of the surrey magistrates is the more important, because they put it into practice with the persuasion that it would work well. but to let them speak for themselves, they write,--"the committee adverted at considerable length in their last annual report to the circumstance of the asylum being frequently unequal to the requirements of the county, and of their intention to attempt to remedy the defect by discharging all those patients, who, being harmless and inoffensive, it was considered might be properly taken care of in their respective union houses. "the plan has been tried, and has not been successful. patients who, under the liberal and gentle treatment they experience in the asylum, are quiet and tractable, are not necessarily so under the stricter regulations of a workhouse; indeed, so far as the experiment has been tried, the reverse has been found to be the case; most of the patients so discharged having been shortly afterwards returned to the asylum, or placed in some other institution for the insane, in consequence of their having become, with the inmates of the workhouse, 'a mutual annoyance to each other.' any arrangement, short of an entire separation from the other inmates of the workhouse, will be found to be inefficient." this is the same as saying that if lunatics are to reside in workhouses, a special asylum must be instituted in the establishment for their care, and the comfort and safety of the other inmates. if the well-being of the insane were the only question to be settled, no difficulty would attend the solution, for experience has most clearly evidenced the vast advantages of asylums over workhouses as receptacles for insane patients, whatever the form or degree of their malady. dr. bucknill has some very forcible remarks in his paper on "the custody of the insane poor" (asylum journal, vol. iv. p. ), with illustrative cases; and in his report last quoted, reverts to this subject of the relative advantages of asylums and workhouses; but we forbear to quote, if only from fear of being thought to enlarge unduly upon a question which has been decided long ago by the observation and experience of all those concerned in the management of the pauper insane; viz. that whatever the type and degree of mental disorder and of fatuity, its sufferers become improved in properly managed asylums, as intellectual, moral, and social beings upon removal from workhouses; and by a reverse transfer, are deteriorated in mind, and rendered more troublesome and more costly. to the workhouse the lunatic ward is an excrescence, and its inmates an annoyance: in its organization, there is an absence or deficiency of almost all those means conducive to remedy or remove the mental infirmity, and the very want of which contributes as much as positive neglect and maltreatment to render the patient's condition worse, by lowering his mental and moral character. but such deterioration or degradation is not an isolated evil, or the mere negation of a better state; for it acts as a positive energy in developing moral evil, and brings in its train perverseness, destructiveness, loss of natural decency in habits, conversation and conduct, and many other ills which render their subjects painfully humiliating as human beings, and a source of trouble, annoyance, and expense to all those concerned with them. in a previous page we have sought to determine what was the proportion of lunatic inmates found by the lunacy commissioners in workhouses considered to be not improperly detained in them, and have estimated it at one-half of the whole number. the foregoing examination, however, of the adaptation of workhouses for the several classes of lunatics distinguishable, leads to the conviction that a very much less proportion than one-half ought to be found in those establishments. for our own part, we would wish to see the proportion reduced by the exclusion of most of its component members, reckoned as "harmless" patients; a reduction which would well nigh make the proportion vanish altogether. what is to be done with the lunatics removed from workhouses, is a question to be presently investigated. but before proceeding further, some consideration of the legal bearings of workhouse detention of lunatics is wanting, for it has been advanced by some writers that such detention is illegal. now, in the first place, it must be admitted that a workhouse is not by law, nor in its intent and purpose, a place of imprisonment or detention. its inmates are free to discharge themselves, and to leave it at will when they no longer stand in need of its shelter and maintenance. whilst in it, they are subject to the general rules of workhouse-government, and to a superior authority, empowered, if not by statute, yet by orders of the poor-law board, or by bye-laws of the guardians, to exercise discipline by the enforcement of penalties involving a certain measure of punishment. temporary seclusion in a room may be countenanced, although not positively permitted by law; but prolonged confinement, the deprivation of liberty, and a persistent denial of free egress from the house, are proceedings opposed to the true principles of english law. yet it may be that a plea for their detention might be sustained in the case of sick or invalid patients (with whom the insane would be numbered) under certificate of the parochial medical officer, provided no friend came forward to guarantee their proper care, or that they could not show satisfactorily the means of obtaining it; for, of such cases, the workhouse authorities may be considered the rightful and responsible guardians, required in the absence of friends to undertake their charge and maintenance. upon such grounds, probably, cause might be shown for the detention of the greater part of workhouse lunatic inmates, although there is no act of parliament explicitly to sanction it. should such a plea be admitted, the notion, entertained by dr. bucknill, that an action would lie for false imprisonment against the master and guardians of the workhouse, would be found erroneous. the lunacy commissioners presented some remarks on this question, indicating a similar view to that just advanced in their 'further report,' . for instance (p. , _op. cit._), they observed:-- "how far a system of this kind, which virtually places in the hands of the masters, many of whom are ignorant, and some of whom maybe capricious and tyrannical, an almost absolute control over the personal liberty of so many of their fellow men, is either warranted by law, or can be wholesome in itself, are questions which seem open to considerable doubt. probably if the legality of the detention came to be contested before a judicial tribunal in any individual case, the same considerations of necessity or expediency which originally led to the practice, might be held to justify the particular act, provided it were shown that the party complaining of illegal detention could not be safely trusted at large, and that his detention, therefore, though compulsory, instead of being a grievance, was really for his benefit as well as that of the community." again, in the second place, the law, without direct legislation to that effect, yet admits,--by the provisions it makes for pauper lunatics not in asylums or licensed houses, and by the distinction it establishes between persons proper to be sent to an asylum, and lunatics generally so-called,--that insane patients may be detained elsewhere than in asylums. for instance, by _sect._ lxvi. & vict. cap. , , provision is made for a quarterly visit by the union or parish medical officer to any pauper lunatic _not being_ in a workhouse, asylum, registered hospital, or licensed house, in order that he may ascertain how the lunatic is treated, and whether he "may or may not properly remain out of an asylum." so likewise by _sect._ lxiv. of the same act, the clerk or overseers are required to "make out and sign a true and faithful list of all lunatics chargeable to the union or parish in the form in schedule (d)." this form is tabular, and presents five columns, under the heading of "where maintained," of which three are intended for the registry of the numbers not confined in asylums, hospitals, and licensed houses, but who are ( ) in workhouses, ( ) in lodgings, or boarding out, or ( ) residing with relatives. further, the law distinguishes, by implication, a class of lunatics as specially standing in need of asylum care, and as distinct from others. by the poor-law amendment act ( & will. iv. cap. . sect. ), it is ordered that nothing in that act "shall authorize the detention in any workhouse of any dangerous lunatic, insane person, or idiot for any longer period than fourteen days; and every person wilfully detaining in any workhouse any such lunatic, insane person, or idiot for more than fourteen days, shall be deemed guilty of a misdemeanour." this section is still in force, is constantly acted upon by the poor-law board, and is legally so read as if the word 'dangerous' were repeated before the three divisions of mentally-disordered persons referred to, viz. lunatics, insane persons, and idiots. so, likewise, by _sect._ lxvii. ( & vict. cap. )--the "lunatic asylums' act, ," now in operation,--the transmission of an insane individual to an asylum is contingent on the declaration that he is "a lunatic and a _proper person to be sent to an asylum_." moreover, by _sect._ lxxix. of the same act, it is competent to any three visitors of an asylum, or to any two in conjunction with the medical officer of the asylum, to discharge on trial for a specified time "any person detained in such asylum, whether such person be recovered or not;" and by the following section (lxxx.) it is ordered, that, upon receipt of the notice of such discharge, "the overseers or relieving officers respectively shall cause such lunatic to be forthwith _removed to_ their parish, or to the _workhouse of the union_." by the th section it is further provided, that "in case any person so allowed to be absent on trial for any period do not return at the expiration of such period, and a medical certificate as to his state of mind, certifying that his detention in an asylum is no longer necessary, be not sent to the visitors, he may, at any time, within fourteen days after the expiration of such period, be retaken, as herein provided in the case of an escape." on the other hand, simple removal from an asylum is by the th section, curiously enough interdicted except to another asylum, a registered hospital, or a licensed house. this intent, too, of the section is not changed by the amendment, _sect._ viii. & vict. cap. . lastly, no other place than an asylum, registered hospital, or licensed house, is constituted lawful by _sect._ lxxii. for the reception of any person found lunatic and under "order by a justice or justices, or by a clergyman and overseer or relieving officer, to be dealt with as such." but this section has to be read in connexion with preceding ones, for instance, with _sect._ lvii., by which it is laid down that the justices or other legal authority must satisfy themselves not only that the individual is a lunatic, but also that he is "a proper person to be sent to an asylum." these quotations indicate the state of the law respecting the detention of lunatics elsewhere than in asylums. this state cannot be held to be satisfactory: it evidently allows the detention of lunatics in workhouses, while at the same time it affords them little protection against false imprisonment, and makes no arrangement for their due supervision and care, except by means of the visits of the lunacy commissioners, which are only made from time to time, not oftener than once a year, and rarely so often. the alleged lunatics are for the most part placed and kept in confinement without any legal document to sanction the proceeding; without a certificate of their mental alienation, and without an order from a magistrate. within the workhouse, they are, unless infirm or sick, treated like ordinary paupers, save in the deprivation of their liberty of exit; they may be mechanically restrained, or placed in close seclusion by the order of the master, who is likely enough to appreciate the sterner means of discipline and repression, but not the moral treatment as pursued in asylums; and, lastly, they live deprived of all those medical and general measures of amelioration and recovery as here before sketched. an extract from the 'further report' of the commissioners in lunacy will form a fitting appendix to the observations just made. it occurs at p. (_op. cit._), and stands thus:-- "it certainly appears to be a great anomaly, that while the law, in its anxiety to guard the liberty of the subject, insists that no persons who are insane--not even dangerous pauper lunatics--shall be placed or kept in confinement in a lunatic asylum without orders and medical certificates in a certain form, it should at the same time be permitted to the master of a workhouse forcibly to detain in the house, and thus to deprive of personal liberty, any inmate whom, upon his own sole judgment and responsibility, he may pronounce to be a person of unsound mind, and therefore unfit to be at large." it is unsatisfactory that the law recognizes the distinction between dangerous and other lunatics, designated as "harmless;" for we have pointed out that no such rigid separation can be made; that it is with very few exceptions impracticable to say with certainty what patients are harmless and what not, inasmuch as their state is chiefly determined by surrounding conditions, by the presence or absence of moral control and treatment. it is likewise to be regretted that so much is left to the discretion of relieving officers and overseers, in the determination of the lunatics "proper to be sent to an asylum;" for those parish functionaries nearly always display a proclivity, where relief is to be afforded, to any plan which at first sight promises to be the most cheap; and hence it is, as remarked in previous pages, they think to serve the rate-payers best by keeping, if practicable, the insane in workhouses. the expediency of asylum treatment for those who claim it, is surely not a question to be determined by such officers. yet the wording of the act (_sect._ lxvii.), that, if they have notice from the parish medical officer of any pauper who "is, or is deemed to be a lunatic, and a proper person to be sent to an asylum," or if they in any other manner gain knowledge of a pauper "who is, or is deemed to be a lunatic, and a proper person to be sent to an asylum, they shall within three days" give notice thereof to a magistrate,--seems to put the solution of the question pretty much in their hands. although when they receive a notice of a pauper lunatic from the union medical officer, they would appear by _sect._ lxx. to be bound to apprise a justice of the matter, yet, in the absence of such a notice, an equal power in determining on the case is lodged in their hands as in those of the medical officer, by the phrase "is, or is deemed to be a lunatic, and a proper person to be sent to an asylum;" for this clause respecting the fitness of the case, reads with the parts of the sentence as though it stood thus in full--'is a lunatic and a proper person to be sent to an asylum, or is deemed a lunatic and a proper person to be sent to an asylum;' and there is nothing in _sect._ lxx. to enforce, under these circumstances, a notice being sent to a justice. it is, indeed, evidently left to the discretion of the overseer or relieving officer to report a case of lunacy falling within his own knowledge to a justice, for he is empowered to assume the function of deciding whether it is or is not a proper one for an asylum. moreover, we cannot refrain from thinking that a parochial medical officer is not always sufficiently independent, as a paid _employé_, to certify to the propriety of asylum care so often as he might do, where the guardians or other directors of parish affairs are imbued with rigid notions of economy, and hold the asylum cost for paupers in righteous abhorrence. in fine, were this enactment for reporting pauper lunatics to county and borough justices, in order to obtain a legal sanction for their detention, sufficiently clear and rigidly enforced, there would not be so many lunatics in workhouses, and none of those very unfit ones animadverted upon by the commissioners in lunacy (see p. , and th rep. c. l. ). the first clause of _sect._ lxvii. is ambiguous; for though it is evidently intended primarily to make the union medical officer the vehicle of communicating the knowledge of the existence of pauper lunatics in his parish, yet it is neither made his business to inquire after such persons, nor when he knows of their existence, to visit and ascertain their condition. it is left open for him to act upon a report that such a pauper "is deemed to be a lunatic, and a proper person to be sent to an asylum," without seeing the individual; but generally he will officially hear first of such patients through the channel of the relieving officer, by receiving an order to visit them. indeed, the relieving officer is legally the first person to be informed of a pauper requiring medical or other relief; and, as we have seen, it is competent for him to decide on the question of asylum transmission or not for any case coming directly to his knowledge. hence, in the exercise of his wisdom, he may order the lunatic forthwith into the union-house, and call upon the medical officer there to visit him. the consignment of the lunatic to the workhouse being now an accomplished fact, it becomes a hazardous enterprise, and a gratuitous task on the part of the medical officer (for no remuneration is offered for his report), to give the relieving officer or overseer a written notice that the poor patient should rightly be sent to the asylum, when he knows that those parish authorities have made up their minds that it is not a proper case to be sent there. in fact, the law makes no demand of a notice from the medical officer of the union necessary where the knowledge of a lunatic pauper first reaches the relieving officer or overseer, or where the patient is already in the workhouse; and no report will be sought from him under such circumstances, unless the parochial authorities decide that they will not take charge of the case in the workhouse. the object of the th and five following sections is evidently to promote the discovery of pauper lunatics, and to ensure the early transmission of all those amenable to treatment to county asylums; but these advantages are not attained, the legal machinery being defective. to fulfil the intention, it should be made imperative on the part of the relatives or friends to make known the occurrence of a case of lunacy at its first appearance to a duly-appointed medical man, who should visit and register it, and, with the concurrence of a magistrate, order detention in a properly-constituted asylum. such a medical officer would have a district assigned to him; of his duties at large we shall have occasion hereafter to speak; to allude further to them in this place will cause us to diverge too widely from the subject under consideration. the th section of the "lunatic asylums' act," which has above been submitted to criticism, we find referred to in the lunacy commissioners' eleventh report, wherein it is spoken of as disregarded by parochial authorities; its ambiguity and the loophole to a contravention of its meaning being, however, unnoticed. the reference occurs in the following passage (_op. cit._ p. ), which censures a practice we have already animadverted upon:-- "and here we take occasion to remark, that if the law were more strictly carried out in one particular, the same temptation to a mistaken and ill-judged economy would not so frequently present itself to boards of guardians; nor could it so often occur to them as an advantage, that they should themselves manage their insane poor by the resources at their own disposal. a custom prevails, very generally, of sending all pauper lunatics to the workhouses in the first instance, instead of at once procuring an order for their transmission to an asylum; and nothing has more contributed to the many recent and acute cases improperly so detained. the practice, it is hardly necessary to say, is in direct contravention of the law applicable to insane paupers. assuming that they come ordinarily at first under the care of the district parish surgeon, he is bound to give notice (under the th section of the lunatic asylums' act) to the relieving officer, by whom communication is to be made to the magistrate, upon whose order they are to be conveyed to an asylum; but in effect these provisions are disregarded altogether. and thus it follows, that the patient, if found to be manageable in the workhouse, is permanently detained there; or even should he ultimately find his way to an asylum, it is not until so much valuable time has been lost that his chances of cure are infinitely lessened. for, although it is our invariable habit, on the occasion of visiting workhouses, to recommend the removal to asylums of all whom we consider as curable, or exposed to treatment unsuited to their state, we find nothing so difficult as the enforcement of such recommendations; and for the most part the report of the medical officer of the union, to the effect that the patient is 'harmless,' is suffered to outweigh any opinion we can offer." in this quotation, therefore, we have an official proof that the defective and ambiguous legislation above commented upon is practically not without its mischievous fruits to the well-being of the insane poor. to amend it, some such scheme as we have sketched is called for to secure the reporting of lunatics, their examination and registration, and the legal sanction to their detention for the purposes of their own safety and that of others, and of their treatment; and were it not that at the present moment asylum accommodation cannot be afforded to all the pauper lunatics of the kingdom, their confinement in workhouses ought to be at once rendered illegal. convinced as we are, that asylums for the insane could be erected, fitted, organized, and maintained at a cost which would leave no pecuniary advantage economically on the side of workhouses; and that, even were the primary expenditure of the latter considerably less, they would in the long run be more expensive on account of their unfitness for lunatic patients, whatever the type of their malady, the injuries they entail on the well-being of all, and the chronic insanity they produce and foster,--it is with much reluctance we are forced to endorse the statement made by the commissioners in lunacy, in their th report (p. ), that workhouse "lunatic wards will have to be continued for some time longer," until, we may add, a more comprehensive, and withal a modified scheme be brought into operation, to cherish, to succour, and to cure those suffering under the double evil of poverty and insanity. though a remedy to meet the whole case must unfortunately be delayed, yet the lunacy commissioners nevertheless need continue energetically to discourage the plan of building special lunatic wards to workhouses, as one, according to their own showing, indeed, fraught with very many evils to their inmates. such erections ought, in fact, to be rendered illegal; the money spent on them would secure proper accommodation in connexion with a duly organized and managed asylum, as demonstrated in previous pages (p. ), for all those classes of pauper lunatics, which, under any sort of plea or pretence, can be detained in workhouses. lastly, we must look to the commissioners to maintain an active supervision over workhouse inmates,--to hold, at least, an annual "jail delivery" of every union-house, to order the immediate transfer of evidently improper inmates, and to remove others, so to speak, for trial. the "leading principles," as laid down by the commissioners in (report, p. ), and to which, in subsequent reports, they state their continued adhesion, are as good as the present state of lunacy and lunatic asylums permit to be enforced; but they can be enforced only by the commissioners themselves, or others possessing equal authority; for workhouse officials will interpret them through the medium of their own coloured vision; and if magistrates were entrusted with the task, we have no confidence that it would be efficiently performed by them as inexperienced, non-medical men, with whom economical considerations will hold the first place. the principles referred to are expressed in the following paragraph:-- "we have invariably maintained that the permanent detention in a workhouse of any person of unsound mind, whether apparently dangerous or not, whose case is of recent origin, or otherwise presents any hope of cure through the timely application of judicious treatment, or who is noisy, violent, and unmanageable, or filthy and disgusting in his habits, and must therefore be a nuisance to the other inmates, is an act of cruelty and injustice, as well as of great impolicy; and we have on all occasions endeavoured, so far as our authority extends, to procure the speedy removal of persons of that description to a lunatic asylum." the following practical suggestions, calculated to improve the condition of the insane poor, are deducible from the foregoing remarks on workhouses considered as receptacles for lunatics. . the county asylums should afford aid to all insane persons unable to procure proper care and treatment in private asylums; and , such patients should be directly transmitted to them; the circumstance of their entire or partial liability to the poor-rates being, if necessary, subsequently investigated. . as a corollary to the last suggestion, the primary removal of patients to a workhouse should, save in very exceptional cases, such as of distance from the asylum and unmanageable violence at home, be rendered illegal; or, what is nearly tantamount to it, for the future no alleged lunatic should be suffered to become an inmate of a workhouse, except with the written authority of the district medical officer or inspector proposed to be appointed. . without the sanction of this officer, likewise, no lunatic should be permitted to be discharged or removed from a workhouse. this is necessary for the patient's protection, for securing him against confinement in any house or lodging under disadvantages to his moral and physical well-being, to check improper discharges, and to protect the asylum against the transfer to it of unfit cases, a circumstance which will presently be shown to be of frequent occurrence. . no person should be detained as a lunatic or idiot, or as a person of unsound mind in a workhouse, except under a similar order as that required in the case of asylum detention, and a medical certificate to the fact of his insanity. . if workhouses need be used, whether as temporary or as permanent receptacles for the insane, they should be directly sanctioned by law, placed under proper regulations, and under effective supervision, not only of the lunacy commissioners, but also of a committee of visitors, and of the district medical officer, whose duty it would be to watch over the welfare of the insane inmates, their treatment, diet, occupation, and amusement. the visitors should be other than guardians or overseers of the poor of the union or parish in which the workhouse is situated, although every union should be represented on the committee; and they might be selected from the magistrates, and from the respectable classes among the rate-payers. if the county were large, it might be advantageously divided into districts, a committee of visitors of workhouses being appointed in each district. . every workhouse containing lunatics should be licensed as a place of detention for them by the committee of visitors, who should have authority to revoke the license. this power of revoking the license should be also vested in the commissioners in lunacy. . every such workhouse, and the number of its insane inmates, should be reported to the lunacy commissioners. according to our scheme, the district medical officer would do this, as well as report generally to the lunacy board, the condition and circumstances both of the workhouse and of its insane inmates. . for the future, the erection or the appropriation of distinct lunatic wards to workhouses should be interdicted by law. by the preceding suggestions reforms are, indeed, proposed to render confinement in workhouses legal; to make it more satisfactory; to provide for effectual supervision, and in general to assimilate the wards of union-houses more closely to those of asylums. yet all this is done only on the ground of the necessity for some legislation on these matters, and more particularly under the pressing circumstances of the time. the present state of lunacy compels acquiescence in the lunacy commissioners' statement, that workhouse-wards must for some time longer be used for the detention of insane paupers; and this fact alone supplies an apology for making suggestions to improve them. moreover, apart from it, the workhouse will at times necessarily be the temporary refuge for some few cases, and may be occupied as a permanent dwelling by those rare instances of imbecility of mind which can be allowed to intermingle with the other inmates, and be usefully occupied; and for these reasons it need be rendered both a legal and not unsuitable abode. at the same time, it is most desirable that the lunacy commissioners should be able not only to discourage, but also to veto the construction of lunatic-wards for the future, on the grounds already so largely pointed out; and for this reason, moreover, that where such wards exist, they are thought good enough for their poor inmates, and are looked upon as asylums over which the county institution has little preference. the existence, therefore, of any specially erected or adapted ward, may always be urged against the proposition for further expenditure in providing for pauper lunatics elsewhere in suitable asylums;--a plea, which should consequently be set aside by overturning the foundation whereon it rests. since the preceding observations on the detention of pauper lunatics in workhouses were in print, a most important supplementary report on the subject has been put forth by the commissioners in lunacy (supplement to the twelfth report; ordered to be printed th of april, ). we have read this report with pleasure, so far as it confirms the views we have taken, but with surprise and pain at the details it unfolds of practices the most revolting to our better feelings, and, in general, of a state of things discreditable to a civilized and christian country. by being confirmatory of the opinions and statements advanced by us, it may be said to give an official sanction to them; and as it is one of the most important documents ever issued by the board, we shall attempt an analysis of its contents. in the first place, the commissioners resort to some recent corrected returns of the poor-law board, and discover that the number of pauper lunatics in workhouses was, on the st of january, , , _i. e._ upwards of above that returned in the tenth report of the same board, and referred to in the foregoing pages; and on the st of july in that same year it amounted to . they then proceed to describe the "character and forms of insanity most prevalent in workhouses," and show that their insane inmates all require protection and control; that "some, reduced to poverty by their disease, are of superior habits to those of ordinary paupers, and require better accommodation than a workhouse affords. many are weak in body, and require better diet. many require better nursing, better clothing, and better bedding; almost all (and particularly those who are excitable) require more healthful exercise, and, with rare exceptions, all require more tender care and more vigilant superintendence than is given to them in any workhouse whatsoever." on turning to the "design and construction of union buildings," they rightly point out that the stringent conditions to ensure economy, and to check imposition and abuse, the "reduced diet, task labour, confinement within the narrow limits of the workhouse premises," the plan of separating the inmates into classes, the scanty means of out-door exercise, &c., are inimical to the well-being of the insane residents. in the "modes of workhouse direction and administration" there is great unfitness. the rules under which the officers act "are mainly devised to check disorderly conduct in ordinary paupers; and it is needless to say with how much impropriety they are extended to the insane. any increase of excitement, or outbreak of violence, occurring in the cases of such patients, instead of being regarded as a manifestation of diseased action requiring medical or soothing treatment, has subjected the individual to punishment, and in several instances led to his imprisonment in a jail. in addition to these hardships, the lunatic patient is for the most part precluded from leaving the workhouse at his own will. in effect he becomes a prisoner there for life, incapable of asserting his rights, often of signifying his wants, yet amenable to as much punishment as if he were perfectly sane, and a willing offender against the laws or regulations of the place. nor, as will hereafter be seen, is his lot much bettered in the particular cases where it is found convenient to the authorities to relax those restrictions, and give him the power at will to discharge himself." rural workhouses of small size are generally preferable abodes for the insane than those of larger dimensions, since their "arrangements have a more homely and domestic character, and there are more means of occupation and of free exercise in the open air;" and where their imbecile inmates can be associated with the ordinary paupers, and regularly employed, their condition is not unfavourable; "but these form only the exceptions." workhouses in the metropolis and in large towns generally, are for the most part "of great size, old, badly constructed, and placed in the midst of dense populations. the weak-minded and insane inmates are here generally crowded into rooms of insufficient size, sometimes in an attic or basement, which are nevertheless made to serve both for day and sleeping accommodation. they have no opportunity of taking exercise; and, from the want of space and means of separation, are sometimes associated with the worst characters, are subjected unnecessarily to seclusion and mechanical restraint, and are deprived of many of the requisites essential to their well-being." "of the workhouses in england and wales, somewhat more than a tenth part are provided with separate lunatic and idiot wards." the "objections to intermixture of inmates" are briefly stated. "there is no mode of complying with suggestions for" the peculiar benefit of insane inmates, "without disturbing the general economy of the house,--a fact which shows how important it is that no lunatic or idiot should be retained for whom any special arrangements are necessary." separate lunatic wards are declared to be more objectionable than the intermixture of the pauper inmates. only occasionally are such wards found at all tolerable; and even then, the constant medical supervision, proper attendants and nursing, sufficient diet, exercise, occupation, and other needful provisions, are deficient. the majority are thus sketched:--"in some of the wards attached to the old workhouses the rooms are crowded, the ventilation imperfect, the yards small and surrounded by high walls; and in the majority of instances the bed-rooms are used also as day-rooms. in these rooms the patients are indiscriminately mixed together; and there is no opportunity for classification. there is no separation where the association is injurious; and no association where such would be beneficial. in fact, patients of all varieties of character,--the weak, the infirm, the quiet, the agitated, the violent and vociferous, the dirty and epileptic,--are all mingled together, and the excitement or noise of one or more injures and disturbs the others. the restless are often confined to bed to prevent annoyance to the other patients, and the infirm are thus disposed of for the want of suitable seats. their condition when visited in the daytime is obviously bad, and at night must be infinitely worse. even in workhouses where the wards are so constructed as to provide day-rooms, these are often gloomy, much too small in size, and destitute of ordinary comforts; while the furniture is so poor and insufficient, that in some instances, there being no tables whatever, the patients are compelled to take their meals upon their knees. other cases to be hereafter mentioned will indeed show that it is reserved for lunatic wards of this description, and now happily for them only, to continue to exhibit some portion of that disregard of humanity and decency, which at one time was a prevailing characteristic in the treatment of insanity." not only, again, are there no sufficiently responsible authorities in the house, and no qualified responsible attendants, but also no records of restraint, of seclusion, of accident, or injury, or of medical or other treatment. "above all, there is no efficient and authoritative official visitation. the visiting justices never inspect the lunatic wards in workhouses, and our own visits are almost useless, except as enabling us to detect the evil that exists at the time of our visit, and which, after all, we have no power to remove." the "results of neglect in deteriorating the condition of patients" of all classes are ably portrayed. in the absence of attentive and experienced persons to watch and to supply their wants, many of the insane suffer unheeded and without complaint, to the prejudice of their mental and bodily state; or become inattentive to natural wants, and prone to violence and mischief. "in a very recent case of semi-starvation at the bath union, when the frauds and thefts of some of the attendants had, for a considerable time, systematically deprived the patients of a full half of their ordinary allowance of food, the only complaint made was by the wan and wasted looks of the inmates." in the two next sections the commissioners insist that the duty of distinguishing the cases in workhouses to be classified as "lunatics, insane persons and idiots," should be performed by the medical man independently of the master; and that, without examination and sanction from that officer, no person of weak mind should be discharged, or allowed to discharge himself. very ample cause for this latter proposition is shown in the illustrations appended, particularly in the case of imbecile females, who not unfrequently become, when at large, the prey to the vicious, further burden the parish by their illegitimate offspring, and often by an idiotic race. "the diet necessary for the insane" is required to be more liberal than for other inmates; yet the commissioners have "in very numerous instances" animadverted upon its inadequacy, both in quantity and quality, but without result, except "in very few instances:" for, notwithstanding that "the medical officer of a union has full power" (by the consolidated order , art. no. ) "to give directions, and make suggestions as to the diet, classification and treatment of the sick paupers, and paupers of unsound mind," yet, we are sorry to learn, that "the power thus given, although backed by our constant recommendations, is rarely exercised by the medical officer." this circumstance is so far confirmatory of a view we have above taken, that the medical officer of a parish or union is neither sufficiently independent, as the paid _employé_ of the guardians, to carry out measures that may be necessary for the alleviation of the condition of lunatics in workhouses, where such means involve increased cost (we regret to entertain the notion); nor always sufficiently acquainted with the wants of the insane. considering the disadvantages of workhouses as receptacles for them, the general statement follows naturally, that as a class of workhouse inmates, the lunatics "are manifestly lower in health and condition than the same class in asylums. hence," add the commissioners, "the patients' bodily health and mental state decline upon removal from asylums to workhouses--an effect chiefly due to the inferior diet." there are great "variations in workhouse dietaries,"--from one spare meat dinner in the week to a meat dinner daily. this latter provision is furnished "in a very small number of houses." these dietaries are indeed much inferior to those considered necessary for criminals in jails; a fact that affords a sad comment on english consistency, which is thus found dealing with more favour and consideration towards those who have transgressed the laws of their country, than to those whose only crime is poverty, or poverty complicated with disease or infirmity. medical treatment would, in truth, seem to be not legally provided at all for lunatics in workhouses: no clause makes a visit of the union medical officer to the lunatic-ward of a workhouse imperative. as examples of the slight esteem in which medical supervision is held, the leicester and the winchcombe houses are quoted. in the former, the visits of the medical officer were only made quarterly; in the latter, by stipulation three times a week, but in practice very irregularly. attendance and nursing are, as might be expected, on a par with medical treatment. even imbeciles have been found exercising the functions of nurses, and, generally speaking, the selection of attendants is made from old and feeble people, having no experience, no aptness for the duties, no particular qualities of intellect or temper to recommend them, and receiving such a mere pretence, if any at all, in the way of remuneration for their trouble, that no painstaking efforts can be looked for from them. "yet to such individuals, strait waistcoats, straps, shackles, and other means of restraining the person are not unfrequently entrusted; and they are, moreover, possessed of the power of thwarting and punishing at all times, for any acts of annoyance or irregular conduct, which, although arising from disease, are nevertheless often sufficient to provoke punishment from an impatient and irresponsible nurse." the interior accommodation, fittings, and furniture are, if not abominably bad, excessively defective: and on reaching this part of the report, where the details of internal fittings and management come under review, the impression derivable from its perusal is akin to that gathered from the revelations of madhouses made by the parliamentary committees of and . the sketch of the evils suffered by lunatics in workhouses, which we have ourselves attempted in past pages, tells a flattering tale compared with the realities unfolded to us by the commissioners, and adds a tenfold force to the arguments against the detention of lunatics in such places. to continue the practice would be to perpetuate a blot upon the internal polity, the philanthropy and the christianity of the country. let those who would know the whole case refer to the report in question; it is sufficient for our purpose to attempt a mere outline of its revelations. patients are frequently kept in bed because there are no suitable seats for them; a tub at times answers the double purpose of a urinal and a wash-basin; a privy is partitioned off in a small dormitory; baths are almost unknown; a trough or sink common to all supplies the want of basins for washing, and an outhouse or the open air furnishes the appropriate place for personal ablutions. clothing, again, is often ragged and insufficient; in an unwarmed dormitory, a single blanket, or only a coverlet, is all the covering afforded by night; loose straw in a trough bedstead usually constitutes the bed for wet and dirty patients to nestle in; and whether the bed be straw or not, the practice of using it night after night, when "filthy with dirt, and often rotting from frequent wetting, has been many times animadverted upon." in some workhouses two male patients are constantly placed in the same bed; nor is the character of the bedfellows much heeded; for a sane and insane, two idiots, one clean and one dirty, and even two dirty inmates, have been found associated together in the same bed, occasionally in a state of complete nudity. further, the want of exercise and employment, the absence of supervision and control, and the entrusting of means of coercion to irresponsible and unfit attendants, lead to the most shocking abuse of restraint, and to cruel seclusion. "the requirement occasionally made by the visiting commissioner, that the master shall make a written record of such proceedings, is utterly neglected. the dark, strong cells, constructed for the solitary confinement of refractory paupers, are used for the punishment of the insane, merely to prevent trouble; quiet helpless creatures, from whom no violence could be apprehended, are kept in bed during the daytime, or coerced; and even the dead-house has been made to serve the purpose of a seclusion-room." "the examples of restraint practised," as adduced in the report, recall to mind all those barbarities which civilized men of the present day are in the habit of congratulating themselves as matters of the past, and the subject of history. the catalogue of appliances for restraint reappears once more on the scene; and we read of straps, leather muffs, leg-locks, hobbles, chains and staples, strait-jackets, and other necessary paraphernalia, as of yore, worn for days, or weeks, or months. excellent matter, indeed, in all this, to garnish a discourse on the advancement of civilization, on the prevalence of improved notions respecting the treatment of the insane, or on some similar topic addressed to the vanity of the present generation! but the chapter does not end here. "it would be difficult to select places so entirely unfit for the purpose of exercise, or so prejudicial to the mental or bodily state of the person confined," as the yards or spaces set apart for it; and yet "of all the miseries undergone by this afflicted class, under the manifold disadvantages before described, and of all the various sources of irritation and discomfort to which we have shown that they are exposed, there is probably none which has a worse effect than the exclusion from all possibility of healthy movement. nothing more powerfully operates to promote tranquillity than the habit of extensive exercise; and in its absence, the patients often become excited, and commit acts of violence more or less grave, exposing them at once to restraint or seclusion, and not unfrequently to punishment. in not a few instances the outbreak has been looked upon as an offence or breach of discipline, and as the act of a responsible person; and the patient has been taken before a magistrate and committed to prison. "a very grave injustice, it is hardly necessary to add, is thus committed, in punishing by imprisonment individuals who are recognized and officially returned as being of unsound mind. these persons in no respect differ from the class of the insane usually met with in asylums, and are equally entitled to the same protection, and the same exemption from punishment. instead of such protection, however, the patient is exposed to double injury:--first, he is subjected to various sources of irritation while confined in the workhouse, directly occasioning excitement; and, secondly, the mental disturbance resulting therefrom is regarded as a crime, and is punished by imprisonment." the commissioners in lunacy next direct attention to the principal cause of the evils described, which they discover in the neglect and evasion of the duties imposed by the law on the officers of parishes and unions, in the interests of the pauper insane. thus, as remarked in previous pages,--"instead of causing the patient to be dealt with as directed by the th and th sections of the lunatic asylums' act, , and immediate steps to be taken for his direct removal to the asylum, workhouses have been to a great extent made use of primarily as places for the reception, and (in many instances) for the detention of recent cases of insanity. "the workhouse is thus illegally made to supply the place of a lunatic establishment, and the asylum, with its attendant comforts and means of cure, which the law has provided for the insane poor, is altogether disregarded; or it comes into operation only when the patient, by long neglect, has become almost hopelessly incurable. we should remark that this occurs most frequently in the larger workhouses, and in those having insane wards." ... "how totally unfit even workhouses having insane wards are for the proper treatment of recent curable cases, we have endeavoured to exhibit in some detail. nevertheless, the practice of making use of them for all classes of insane patients is rapidly increasing, and our efforts to check it have proved hitherto quite ineffectual." after further adverting to the influence of the neglect of the laws in increasing pauper lunacy, they very briefly discuss the comparative cost of lunatics in workhouses and in asylums, but their examination adds nothing to what we have much more fully put forward on this subject. their "conclusion" contains some valuable suggestions, more or less identical with those we have ourselves independently advanced, and which may be briefly summed up as follows:-- "to remedy many of the evils adverted to would, in our opinion, be impracticable, so long as insane patients are detained in workhouses, whether mixed with other inmates or placed in distinct wards. "the construction and management of workhouses present insurmountable obstacles to the proper treatment of the disease of insanity; and therefore the removal of the majority of the patients, and the adoption of stringent measures to prevent the admission of others, have become absolutely necessary." the notions of parish authorities of the very great comparative economy of workhouses over asylums rest, say the commissioners, on a false basis; and to place the question fairly before them, "it is essential that the mode of keeping the accounts should be assimilated in each, and that in the asylum only food and clothing should be charged to the parishes, and all other expenses to the county. in such case, we believe it would be found that the charges in each would be brought so nearly to a level, that there would exist little or no inducement on the plea of economy to tempt the guardians to keep their insane patients in workhouses, instead of sending them at once to a county asylum." to provide proper accommodation for the insane poor in workhouses, inasmuch as many asylums are on "so large a scale as not to admit of the necessary extension, whilst some are of a size much beyond that which is compatible with their efficient working," the commissioners propose "the erection of inexpensive buildings, adapted for the residence of idiotic, chronic, and harmless patients, in direct connexion with, or at a convenient distance from, the existing institutions. these auxiliary asylums, which should be under the management of the present visiting justices, would be intermediate between union workhouses and the principal curative asylums. the cost of building need not, in general, much exceed one-half of that incurred in the erection of ordinary asylums; and the establishment of officers and attendants would be upon a smaller and more economical scale than those required in the principal asylums." "whether or not such additional institutions as we recommend be provided, we think it essential that visiting justices of asylums should be invested with full power, by themselves or their medical officers, to visit workhouses, and to order the removal of insane inmates therefrom to asylums at their discretion. they should also be empowered, upon the report of the commissioners, to order the removal into the asylum of pauper patients boarded with strangers." "and in the event of our obtaining your lordship's approval of such suggestions for legislative enactment, we would further recommend that it should include the following provisions:-- "no lunatic, or alleged lunatic, to be received into or detained in a workhouse, unless he shall have been duly taken before a justice or officiating clergyman, and adjudged by him as not proper to be sent to an asylum. "in any case, however, wherein an order for a lunatic's reception into an asylum shall be made by a justice or officiating clergyman, it shall be competent to him, if, for special reasons to be set forth in his order, he shall deem it expedient, to direct that such lunatic be taken, _pro tempore_, to the workhouse, and there detained for such limited period, not exceeding two clear days, as may be necessary, pending arrangements for his removal to the asylum. "a list of all inmates of unsound mind to be kept by the medical officer of a workhouse, and left accessible to the visiting commissioners. "the medical officer to specify, in such list, the forms of mental disorder, and to indicate the patients whom he may deem curable, or otherwise likely to benefit by, or in other respects proper for, removal to an asylum. "the visiting commissioner, and the poor-law inspector, to be empowered to order and direct the relieving officer to take any insane inmate before a justice, under the provisions of the th section of the lunatic asylums' act, . "in all cases of inmates of unsound mind temporarily detained in workhouses, the medical officer to be invested with full powers as respects classification, diet, employment, and medical and moral treatment, and otherwise." of some of these suggestions we shall take a future opportunity to speak, and at present pass from the consideration of the state and wants of lunatics in workhouses to notice, briefly, the condition of those living with their friends or elsewhere. § _pauper lunatics living with their relatives or with strangers._ in the previous chapter "on the state of the present provision for the insane," some remarks have been made on the class of lunatic poor living with their relatives or strangers, calculated to arrest attention to their numbers and their neglected position. the commissioners in lunacy have as a rule, and in the absence of particular information, calculated that they are about equal in number to those resident in workhouses. considering the imperfect nature of the statistical records of them, and the fact that they escape official observation and inquiry to a much greater extent than even the lunatic inmates of workhouses, we have assumed them to be more numerous, and that there are so distributed in the homes of our industrial classes. of these , more or less, poor persons, dependent, on account of distinct imbecility or idiocy, upon others for protection and support, no one outside their abodes, it may be generally said, thoroughly knows their condition, although a partial knowledge may be possessed by the parochial authorities of the union or parish to which they are chargeable. to these authorities, however, they possess no interest; they are regarded as burdens upon the public purse, to be arranged for on the cheapest terms. the only person at all responsible for their condition is the parish medical officer, who is required by sect. ( & vic. cap. ) to visit them quarterly, and to certify "whether such lunatics are or are not properly taken care of, and may or may not remain out of an asylum." in the first place, the matter of deciding what pauper reported as insane, imbecile, or idiotic is actually so, is not by law given to any parochial officer; hence it frequently happens that differences of opinion and divisions arise between the medical officer on the one hand, and the poor-law guardians on the other, as to the chargeability of this and that pauper to the parish as insane; and the decision acquires intensified importance from the fact that one half-crown per quarter is at stake on each pauper chattle in dispute; for if the medical man gain the day, just that sum has to be squeezed out of the rate-payers to compensate him for his quarterly call upon the admitted lunatic. we leave the reader to imagine the battlings of the vestrymen on the knotty point; sane or not insane, that is the question, the solution of which must cause the consumption of much time and breath yearly to many an honourable board of guardians, to animated discussions, bold definitions and fine-drawn distinctions, lost to the _profanum vulgus_ enjoying no seat in the conclave. here, then, appears a duty which, in our opinion, should be performed by a duly appointed officer, such as a district medical inspector or examiner; for we would deprive the guardians of the poor of all voice in deciding on the sanity or insanity of any individual. the law might with equal or with greater propriety leave the decision of the success or non-success of the operation of vaccination to a vestry, as that of the question under remark. further, since many might argue, that to leave the determination of the question to an officer like the parish medical man, directly interested in settling it in one way, and who might saddle the parish with an annual charge for every poor person in it who did not come up to his standard of mental strength, would be unfair to the rate-payers; an independent opinion, given by an officer in no way interested in the decision of the point at issue, would seem to afford the very best means of settling the point, and a sufficient guarantee against any supposable irregularities. we would suggest, therefore, that the district inspector should visit every poor person wholly or partially chargeable, or proposed to be made chargeable to any parish, as being of unsound mind, and make a return to the parochial authorities and to the poor-law board, and that the certificate of this officer should be held to be a sufficient proof of the insanity of the individual. but the duties of this officer, in relation to the lunatic poor under consideration, would not stop here. in his visit we would require him to investigate more narrowly than a union medical officer can be expected to do at the remuneration offered, and amid his many other arduous engagements,--into the condition and the circumstances by which the poor patient is surrounded, to report thereon to the lunacy board and to the proper union officials, and in general to state, in the words of the act, whether he is or is not properly taken care of, and is or is not a fit subject for asylum care. the officer we propose, would approach the inquiry independently of the parish authorities, and indifferent to their censure, having no position and no pay to lose by his decision; whilst as an experienced physician, understanding the varying features of mental disorder, and the conditions necessary to its amelioration or cure, his opinions would claim greater respect. inasmuch as it is impossible, owing to their small number, for the lunacy commissioners, without totally neglecting their other duties, to make themselves acquainted with the condition of these pauper lunatics, scattered here and there over the country, in cottages and lodgings, we really possess, as before said, under the existing system, no information worth having, what that condition really is. judging from the state in which workhouse lunatic inmates are found, the impression is unavoidable, that the pauper lunatics under notice must be in a worse one, since there is not only no sort of supervision over them equivalent to that provided in workhouses, but also the sums allowed towards their maintenance are most scanty, and, where they are lodged with strangers, no care and no sustenance beyond what is felt to be actually paid for, can be presumed to be given. now and then a glimpse of the actual state of things is casually afforded by the report of a county asylum; and such are the glimpses we have got through this medium, that, except to arouse public attention by their recital, in order to bring about a reform, it were well, for the sake of the reputation of the country, that the revelations were unrecorded. asylum superintendents could, indeed, more frequently raise the veil upon scenes of wretchedness and cruelty undergone by our lunatic poor in the habitations where parish officials place or keep them; but they generally forbear to do so in their reports, although enough is shown by the description of the state in which patients are admitted into the asylums, and of the length of time that has been suffered to elapse since the commencement of their sad malady. dr. hitchman, in the reports of the derby county asylum, has more than once referred to the state of patients on admission from their homes or lodgings. thus, in , he narrates the case of a poor woman who had been demented for five years, and "kept at home until she fell into the fire and became extensively and severely burnt;" and not till after this accident was she taken to the asylum. a little way further on, in the same report, he observes,--"those only who have lived in public asylums know the misery, the wretchedness, and the wrong which are constantly inflicted upon lunatics in obscure places, even by their relatives and 'friends,' and which cease only with the life of the patient, unless he be conveyed to a well-conducted institution. it is, moreover, a remarkable phenomenon, that many individuals who perpetrate these enormities upon their kith and kin, who have habitually fastened them with cords, who have deprived them of a proper supply of clothing or of food, who have, in short, rendered them permanent cripples in body, as well as hopeless idiots in mind, have done so without malice, as a general rule, without passion, by slow degrees, and with no conception whatever of the present suffering or ultimate mischief effected by their proceedings. they affect no secrecy among their neighbours while these things are going on. familiarity to the spectacle blinds their perceptions and blunts their feelings.... others there are, who, from penurious and selfish motives, inflict much wrong upon the lunatic. of such a kind appears the following:--'t. g., removed from the custody of his relatives by the order of the magistrates. has been insane thirty-eight years, under the management of his relatives, who have generally had him confined in an out-building.' 'he is stated to have been unclothed for many years. when brought into the asylum he was naked, except that around his pelvis were the remains of an article of dress; his hands were tightly bound to each other by ligatures passing around the wrists. when in the cart he was covered with a blanket, but this fell from him during his struggles on being removed. he roared hideously as he was being conveyed to the wards. he is a person of lofty stature and great size. his head and neck are very large; one side of his forehead is greatly disfigured by scars, and he has lost an eye. his ears have been deprived of their normal shape, and their lobes much thickened by the deposition of fibrine or other matter. his lips are large and pouting. his beard has been long unshaven, but has been recently cut with a pair of scissors. the bones and muscles of his arms are of great size; his lower extremities are red, swollen, and 'pit,' under pressure; one of his toes is deprived of its nail, and the whole foot appears to have suffered from the effects of cold. he walks with a stooping gait, and appears unable to retain the erect posture without support. he resists powerfully all attempts to clothe him, and appears to be entirely ignorant of the use of a bedstead. he whines after the manner of a dog that has lost its home. he dreads all who approach him; on being taken from his room in the evening, he hurried back to it with all the haste he could, and on all occasions he shrinks from observation. he is lost to every sense of decency; nakedness is congenial to him, but he will sometimes coil himself in a blanket for the sake of its warmth. he is guided by the lowest instincts only, and his whole appearance and manner, his fears, his whines, his peculiar skulking from observation, his bent gait, his straight hair, large lips, and gigantic fore-arm painfully remind one of the more sluggish of the anthropoid apes, and tell but too plainly to what sad depths the human being can sink under the combined influence of neglect and disease.'" the same excellent physician reverts to these cases in his fourth report ( ), and laments the sad condition of health, and the horrible state of neglect of many patients on their admission. he says, "one or two patients had been confined by manacles in their own cottages until rescued by charitable interference, and were brought to the asylum with their wrists and ankles excoriated by the ligatures deemed necessary for their proper control." one such case had been confined twenty-five years in his cottage-home. these illustrations will suffice for our purpose. they indicate the existence of abuses and wrongs here in england, too similar, alas! to those the special lunacy commission of scotland brought to light by their well-known inquiry in (report, edinburgh, ), and such as the general description in their report, and the particulars in appendix k, too amply demonstrate. it is referred to as "the wretched state" of single patients living with their friends or others, and well merits the designation. they found these poor afflicted beings generally in a state of moral and physical degradation, ill-fed, ill-treated, ill-clothed, miserably lodged, shockingly dirty, abused, restrained by all sorts of mechanical contrivances of the coarser kind, or left to wander unheeded and uncared for; whilst among the imbecile or fatuous women, many were the instances where they had become the mothers of an illegitimate and often idiotic offspring. judging from the specimens before us, we repeat, we have great misgivings lest a similar searching inquiry into the condition of pauper lunatics in england distributed in the homes of our cottagers and labouring classes, should reveal a state of things no less disgraceful to a civilized country. to recall a conviction before expressed, additional legislative provision is demanded for this class of pauper insane. the quarterly visit of the hard-worked and underpaid union medical officer or of his assistant, affords no sufficient guarantee, even when regularly made, that they are duly taken care of, and not improperly deprived of the advantages of asylum treatment. but if we accept official statements, these visits are irregularly made and much neglected, and the reports of them far from properly attended to. in the report of the hants asylum for , the committee took occasion to remark on the extended neglect and the inefficiency of these legal visits and reports; and though the commissioners in lunacy admit that of late matters have improved, yet they say that they are far from satisfactory. from these and other considerations adverted to, we have suggested that the inspection of the lunatic poor in question should be specially undertaken by the district medical officer, and that a report on them should after each visit be made to the lunacy commission, and, with advantage, also to the poor-law board. this officer should be informed of every pauper or other lunatic living with friends or others, and should investigate, as said above, all the circumstances surrounding him, and decide whether or not a transference to an asylum would be for the better. it would consequently be for him to select and recommend the removal to an asylum of all such patients as afforded a prospect of recovery; and since good food and proper nursing improve not only the body, but also the mind and the moral feelings, and promote the lasting relief of the mental disorder,--it should also devolve upon him to signify the extent and mode of out-door relief to be afforded. defective and faulty nutrition concurs powerfully to produce insanity, and, when it is induced, to make it permanent; the best policy must therefore be to nourish pauper lunatics sufficiently;--a policy, which we see, however, under existing circumstances, no prospect of being acted upon by the guardians of the poor. the allowance made to out-door lunatic paupers differs much; for it may be intended to supply almost all the moderate wants of the recipient, or only a small part of them. it is always, however, very limited, and less than the calculated cost of in-door paupers per head, and can never suffice to procure the poor patient adequate nourishment and suitable attendance and clothing. its amount, moreover, is regulated by no definite principles, but is left very much to the caprice of the relieving officers, and to the liberal or the opposite sentiments in the ascendant among the parochial guardians. it is contributed as a grant in aid to the relatives of the patient, and to those not related as a compensation for the outlay and trouble incurred on his account. the former are naturally liable to the maintenance of their lunatic kinsman, and no sufficient objection obtains to his being detained among them, provided his condition is not prejudiced by his exclusion from an asylum, and is duly watched over by competent medical officers, and that those relatives are able to afford him proper control, food and clothing, with or without parochial assistance. but the case is different in respect of those not related to the patient, who as strangers can have little interest in him; but who, on the contrary, have to make his detention serve their own purposes so far as possible, and cannot be expected to do or supply more than they are paid for. now, as the weekly allowance from the parish is to be by rule kept as low as it can be, the lowest offers possess the highest recommendation for acceptance, and the comforts and well-being of the poor imbecile or idiotic people are almost necessarily sacrificed at the shrine of economy. the whole system, therefore, of boarding pauper lunatics in the homes of the poor unconnected with them by blood, as now pursued without restrictions or method, appears fraught with injury to those helpless beings. what sort of attention, food, and lodging can be expected for some or shillings a week? what sort of supervision and control can be looked for from a poor, illiterate labourer or artisan? even a patient's own relatives may and do grudge the cost and the trouble he puts them to, or they may be very imperfectly able to furnish in their cottage-home the means needed to ensure his protection and the conveniences and comforts of others, and be ill-adapted by character and education to act as his directors and guardians. but these difficulties and defects are augmented manifold when the patient becomes a dweller among strangers. only under very peculiar circumstances indeed would we tolerate the boarding of pauper lunatics with strangers; when, for instance, their comforts and safety are hedged round by legal provisions sufficiently ample, and by systematized arrangements to secure them. these ends are to be attained by taking the selection of the abode and the pecuniary details from the hands of parochial officers, and by entrusting them to some competent medical man, who should be responsible that the patients are properly cared for and treated. it should be for him to select the residence, and in so doing to seek out those who by character and condition are best fitted for the charge. if the law were so amended that asylum relief should be afforded to all on the appearance of their malady, the majority of those to be provided for in lodgings would come from the class of chronic, imbecile patients, accounted harmless, whose discharge from the asylum under proper surveillance might be recommended. hence it would render the scheme more perfect and satisfactory, to retain these chronic lunatics in homes within a moderate distance of the county asylum they were previously placed in, so that they might be under the supervision of the medical staff of that institution, and that the propriety of their prolonged absence from it, or of their return to it, might be therefore determinable by those best qualified to judge from past experience of their case. yet, in all probability, this restriction as to the district for receiving patients as boarders, would not always be practicable; and frequently, where the insane poor had near relatives capable and willing to receive them under their care, though at a distance from the asylum, it would not be desirable to sacrifice the advantages of the guardianship of friends to those obtainable by vicinity to the asylum; and, from these or other causes, many poor insane people would be found distributed here and there throughout a county under the charge of cottagers and others. in their cases we would make the district medical inspector the special protector and guardian of their interests and well-being provided by law, and require him to visit them at least twice a quarter, report on their condition, and on the fitness or unfitness of the persons boarding them. in all cases, he should as a preliminary proceeding inquire into the accommodation and general circumstances of the persons proposing to receive an individual of unsound mind into their family, and should reject the application of those who are unable to afford suitable conveniences and adequate management. could a properly-organized system of supervision and control be established, the disposal of poor insane persons in the homes of the industrious classes would not be open to the objections it is at present, when no adequate legal provision to ensure their inspection and welfare is in existence. indeed, it would be an improvement and blessing to many of the chronic lunatics in our great asylums, could they so far be set at liberty, and have their original independence restored to them by a distribution in the cottage-homes of our country, where, under sufficient control, they could exercise useful employments, and relieve the rates of part of their cost. we have used the term 'cottage-homes' advisedly, because it is evident, that, except in very small towns, a town-residence would be most unsuitable. the example of the great colony of insane persons at gheel, in belgium, has suggested this plan of boarding lunatics in the homes of the working classes, chiefly of agriculturists, to the minds of many english philanthropists desirous to ameliorate the condition of our pauper insane, and to lessen the large costs of asylum provision. the only attempt, however, as far as we are aware, partaking at all of the conditions calculated to render such a scheme satisfactory and successful, hitherto made, is that on a small scale at the devon asylum under the direction of dr. bucknill, and we are happy to find from this gentleman's report that the arrangement has hitherto worked well. we shall return to this subject in a subsequent section,--"on the distribution of the chronic insane in cottage-homes." § _transmission of unfit cases to asylums--improper treatment prior to admission._ in preceding pages it has been remarked that the transfer of lunatics to asylums is regulated not by the nature of their case, and its amenability to treatment or amelioration, but by the circumstance of their being refractory and troublesome, annoying by their habits, or so infirm and sick as to require attentive nursing; or, in general, in such a state that their residence involves an increased and unworkhouse-like cost. the question of the recency of the attack is treated as of far less moment; for if the poor sufferer have what are called harmless delusions, or if he is only so melancholic that suicide is not constantly apprehended, then under these and such similar conditions, the economical theory of the establishment commonly preponderates over every consideration of the desirability of treatment in the presumedly expensive asylum, and the patient is retained. in course of time his malady becomes chronic, and in all probability incurable, and his condition so deteriorated in all respects by the absence of proper measures for his mental and moral treatment, that sooner or later his physical health gives way, or his habits grow inconveniently annoying and troublesome, and then it is that workhouse officials discover that the county asylum is his suitable abode. by this system of 'clearance' the workhouses are relieved of their most burdensome and costly inmates, who fall to the charge of asylums, in which their presence necessarily keeps down the rate of recoveries, multiplies the proportion of chronic lunatics, and increases the expenses and the rate of mortality. the medical superintendents of our asylums bear witness to the recklessness, and to the cruelty, at times, which often mark the doings of workhouse authorities when they wish to rid themselves of the cost and trouble of any of the lunatic poor in their keeping. the illustrations at hand, obtained from county asylum reports, are so numerous, that we must content ourselves with a selection of a few of the more striking. dr. boyd, the distinguished physician of the somerset county asylum, makes the following statement in his sixth report ( ):--"several aged persons, and many others in a feeble state, have been admitted during the year, so that the mortality, although less than in the preceding year, has still been considerable. for example, two cases have been recently admitted: one that of a man with dropsy, and broken down in constitution, who is reported to have been given to excess in drinking ardent spirits, and to have been subject to epileptic fits; he was disappointed at not being admitted into a general hospital, became violent, and was sent as a patient here; he has been free from fits since his admission, is rational, but apparently in the last stage of bodily disease. the other case is that of a woman about seventy, paralysed, and unable to sit up in the arm-chair without support. she was troublesome in the union workhouse, and was reported _as dangerous_, and so was sent to the asylum. there have been four males with paralysis recently sent in from being dirty in their habits.... one female was improperly sent with _delirium_ attending on _fever_: she died a fortnight after admission." in his ninth report, this same superintendent says,--"some are sent to the asylum in a state of paralysis, some are aged and in a state of fatuity, and others when they become troublesome, or are in a diseased and feeble state of bodily health, and require more nurse-tending than they receive in the workhouses.... under the existing arrangements, lunatic asylums are gradually losing their proper character of hospitals for the recovery of the insane, and sinking down to be mere auxiliaries to workhouses." out of eighty admissions at the worcester county asylum, fourteen were between sixty and eighty years of age, and for the most part "the subjects of organic disease of the brain, lungs, and heart, or suffered from long-continued mental disease, or from the superannuation of old age, and deficient nutrition of the brain and nervous centres. four of them died during the year.... during the early part of the year some correspondence was entered into with several unions, from which patients had been sent in a dying or exhausted state; and the impropriety of such proceeding was pointed out by your committee.... it is not supposed that those unfortunate cases are wilfully detained with improper intentions at their homes or elsewhere, but from ignorance; and from want of the necessary appliances, and the assistance of those accustomed to the insane, proper measures cannot be adopted for their care and recovery," and various injuries are inflicted. the experienced superintendent of the beds., herts., and hunts. asylum reports, in , that of , as many as twelve died within three months of their being admitted; five did not survive a fortnight. "one male, an epileptic seventy-nine years of age, and having been bedridden for years from contracted limbs, and nearly exhausted from the journey, died on the twelfth day. a female, aged sixty-eight, with disease of the heart, died on the fourth day from exhaustion, having been some time without rest, and having refused her food previous to admission. a female in the last stage of pulmonary consumption, lived but seventeen days; and one very distressing case of a female ... was brought to the asylum, who, worn out from constant excitement, and having a large wound on the leg, with ulcerations from ligatures on the wrists and ankles, sank on the fourteenth day. the two last-mentioned patients were reported to have refused food for nearly a week, but took every kind of nourishment offered to them from the moment they were in the asylum." the report of the suffolk county asylum records the admission of ten poor persons in "nearly seventy years of age, nine over seventy, three over eighty; sixteen in a state of bodily exhaustion; nine either idiots from birth, or imbeciles for a very long period; one child with well-known disease of the heart, and a woman, a cripple, scrofulous, blind and deaf." "what," asks dr. kirkman, the venerable superintendent, "can be done more than good nursing to support a peevish mind in a patient eighty-four, admitted only a few days ago?" he adds, "to give other instances, one man was received some time back on a very qualified certificate, and upon whose case a qualified certificate only could be given; and another (somewhat experimentally) with the notice that his mania, if such it were, existed only in the want of a slight resistance to a wayward will; and another, a girl of sixteen, subsequently found not to be insane, but suffering from aggravated cataleptic hysteria, supposed to have been caused by fright, having spinal disease, and deformed throughout the body." dr. hitchman, whose reports we have found so valuable in former sections of this work, has repeatedly called attention to the subject now under notice. in he writes:--"it is with feelings of deepest sorrow that your physician is compelled to state, that patients continue to be sent to the asylum in very advanced stages of bodily and mental disease.... so long as no violent or overt act has been perpetrated; so long as the sufferer can be 'managed' in the privacy of his miserable home, or by the 'cheap' resources of a workhouse, he is often detained from the lunatic hospital. disease, aggravated by neglect, continues its direful course, the 'harmless' lunatic becomes very dirty in his habits, or very violent in his conduct, windows are broken, clothes are torn, persons are injured, and the strap, the strait-waistcoat, and the chain are brought into service to control for a time the ravings and the mischief of the patient. steps are now taken for his removal--bound, bruised, dirty, and paralysed, the poor creature is taken to an asylum. one glance is sufficient to reveal to the experienced eye that _cure_ is hopeless; that while every resource of the institution will be needed to sustain the exhausted energies of the patient--to preserve him from the sufferings consequent upon the loss of his self-control over the excretions of his body, yet for two or three years he may survive to swell the list of incurables--to diminish the per-centage of cures--to crowd the hospital, and, worse than all, to perpetuate this popular belief, and to encourage the pernicious practice, which are now leading to the moral death and social extinction of hundreds of our fellow-creatures." speaking of the admissions in , he says:--"several were in advanced stages of bodily disease; thus, i. c. expired in eight hours after his arrival at this hospital. he was removed from the vehicle in which he was brought to his bed, where he remained tranquil until the moment of his decease. the state of great prostration in which he was brought, forbade the employment of the usual washing-bath; nor was he subjected to the fatigue of being shaved (of which he stood in much need) in consequence of his exhaustion. f. g., aged years, admitted with the marks of restraint round her wrists, survived eighteen days--only by the administration of wine and warmth. s. c., brought bound by straps and a strait-waistcoat in the afternoon of the th, was so convulsed and epileptic, that she died on the morning of the th, having scarcely spoken during the time she was in the asylum. others were in advanced stages of dropsy, phthisis, and general paralysis, and, although in a hopeless condition, lived on for several weeks under the fostering care of the institution. one poor girl, admitted from lincolnshire, in a perfectly helpless condition (the delirium of fever having been mistaken for the ravings of insanity), was conveyed from the vehicle to a water-bed, where she has remained in a state of great suffering for upwards of twelve weeks, and is never likely again to recover the use of her limbs." the experience of the kent asylum is similar. the age of eleven persons admitted in averaged , and twelve were from to . "in many of these the malady was simply decay of mind, or was due to apoplectic seizures, and attended by palsy." in the report for - , dr. huxley goes more at large into the question of unfitness for asylum admission, and the vigour and clearness of his remarks induces us to quote them at length. he observes:--"it seems difficult to understand on what principle patients are sometimes sent. one man, for an intemperate threat uttered under considerable provocation, is hastened off to the asylum. he can then only be deemed insane in a constructive sense, and in reliance on the undoubted good faith of the whole proceedings for his removal. he is seen to be sane; he remains so, and merely awaits the next discharging-day. in the interval he has had time to reflect on the danger of uncontrolled speech; but perhaps he and his family ought not to have incurred the reproach (as it is held) of insanity in the blood. perhaps, also, he ought not to have swelled the list of persons insane, adding his mite to the evidence which supports the general belief in an actual increase of disorders of the mind. "again, the facility with which a drunken prostitute finds admission and re-admission is astonishing. the delirium, rather than insanity proper, produced by excessive drinking, has, indeed, some alarming modes of expression; but it is a different thing from true mental derangement, and is transient, the patient being generally nearly all right again on arrival. i confess to a feeling which grudges to such patients the benefits of an asylum and association with the inmates who are truly unfortunate. their detention is wholly unsatisfactory; it leads to nothing. long or short, it proves no warning against a return to former bad courses; whilst the presence of people (i do not call them patients) of this sort seriously injures the interior comfort of the wards. ought such cases to swell the returns of lunacy? then, in estimating the supposed growth of insanity among the people, let the fact be remembered, that here is one contributing element, which was not represented until of late years. once again, the extent to which strongly-marked senility is now made the reason for admission to the asylum is, i think, unprecedented. to grow childish, wilful, and intractable; to lose memory, and forget the good habits of a life; to take no note of times and seasons; to wake by night and be restless, and to become generally incapable, are the rule rather than the exception at the close of an extended life. i do not think these natural ills ought to be the cause so frequently as they are found to be, for sending the subjects of them to an asylum. workhouses may not contain the little special accommodation needful for such cases; but it would not be a good argument to hold, that because they _do_ not, the asylum must be the proper receptacle. "poverty is, truly, the great evil; it has no friends able to help. persons in middle society do not put away their aged relatives because of their infirmities, and i think it was not always the custom for worn-out paupers to be sent to the asylum. may not this practice be justly regarded as an abuse of the asylum? it is one more of the ways in which, at this day, the apparent increase of insanity is sustained. it is not a real increase, since the aged have ever been subject to this sort of unsoundness. "decayed persons, once placed in an asylum, are ever after held to have been rightfully deemed insane. if any of their descendants, therefore, become mentally afflicted, the hereditary taint is straightway accounted to them. this is, indeed, to show cause why all the world should be mad! i hold it to be wrong to send persons to an asylum merely on account of second childhood, and a wrong operating to general disparagement. in the first place, the practice is only an indirect consequence of poverty; next, it helps improperly to force asylums to a size inconsistent with their best management; and thirdly, it is one amongst other apparent, but not real grounds, for that increase of mental disorder, which is apprehended with such general alarm. "we received at least twelve persons, who, in my judgment, needed not, and therefore ought not to have been sent, viz. seven aged, being of , , , , , , and years; three children, of , , and years; and two adults. one of the children was not insane, but suffering from chorea (st. vitus's dance) affecting the whole body. this disorder had, apparently, been mistaken for mania." we will close these quotations by one from dr. bucknill's report for :-- "there can be little doubt that those asylums, the admission into which is restricted by legal formalities alone, are not unfrequently made use of as hospitals for the treatment of bodily disease and for the care of the bodily infirm. to such asylums patients are sent suffering from serious and troublesome bodily diseases, whose mental condition would never have been considered a sufficient cause for removal had it existed alone. the number of patients has not been small, who, from time to time, have been admitted into the devon asylum with serious disease of the several organs of the body, and with no greater amount of mental disturbance than is the frequent result of such disease. "patients have been admitted suffering from heart disease, aneurism, and cancer, with scarcely a greater amount of melancholy than might be expected to take place in many sane persons at the near and certain prospect of death. some have been received in the last stages of consumption, with that amount only of cerebral excitement so common in this disorder; others have been received in the delirium or the stupor of typhus; while in several cases the mental condition was totally unknown after admission, and must have been unknown before, since the advanced condition of bodily disease prevented speech, and the expression of intelligence or emotion, either normal or morbid. "these observations are made in no spirit of complaint. the capabilities of these institutions to treat all ailments of mind or body are indeed felt to be a source of satisfaction and pride. it ought, however, to be known, that this county asylum is, to some extent, made use of as a public infirmary, and that the result of such employment must be expected in an obituary somewhat lengthened, if not also in a list of cures somewhat abbreviated." sufficient proofs are surely furnished in the above extracts, selected from many similar ones, to establish the general statements advanced at the beginning of the present subject, viz. that both recklessness and cruelty not unfrequently mark the proceedings of workhouse officials in their transmission of patients to the county asylums. they, moreover, supply facts to prove that the neglect in transferring proper cases for asylum treatment, and the inexcusable folly of sending to asylums the victims of second childishness, the imbecile paralytics, the peevish and perverse sufferers from chronic organic disease, such as poor consumptives, whose days are measured by the shortest span, tend to promote the accumulation of incurable inmates, to raise the mortality, and to increase the expenditure of these institutions. in fact, the annual returns of county asylum experience demonstrate that the transmission to asylums is regulated by no rule, and is attended by great abuses. the practical lesson deducible from this is, that the matter must be placed in other hands, and guided according to some rational principles. the insane poor must no longer be left to pine in neglect and misery in their own homes, until their friends tire of the trouble of them, or some casual circumstance class them, in a relieving officer's opinion, as proper candidates for an asylum; nor must their presence in the workhouse be, for the future, regulated by the mere circumstance of the care, attention and expense they involve, in the estimation of workhouse governors. there need be some specially appointed officer, whose business it should be to know both the existence of every insane person in his district and his condition and treatment, and to report those who require the care of a curative asylum, those who only need the nursing and supervision of a chronic one, and those who can be duly and efficiently tended and cherished in the homes of their families. by the exertions of such an officer, we should no longer read of the removal of dying patients, only to die in the asylums; or of the victims of neglect and wretchedness detained in workhouses or their homes, until the advance of their mental malady, the complication of organic disease, or some casualty, has rendered them hopelessly incurable, and burdensome in cost,--a cause of a decreased rate of cures and of an augmentation of deaths in the asylum. but there is yet another lesson to be learned from the foregoing extracts, confirmatory of our own experience, which we might well wish to ignore, viz. the want of knowledge, both of the characters of insanity and of the treatment it demands, among our professional brethren. undoubtedly a vast stride has been made of late years in diffusing correct views of insanity and its treatment, yet much remains to be done; and it is humiliating to read of cases of delirium from fever, or from organic disease, affecting other organs than the brain; of patients afflicted with chorea; of others delirious from exhaustion or from alcoholic drinks, sent to asylums as cases of insanity. for it is to be remembered, that a medical certificate is a necessary preliminary to the entrance of every person into an asylum; and where the nature of the cases indicates no flagrant error of diagnosis, it at all events exhibits a carelessness or recklessness of the medical man, or his want of moral courage and of official independence, where, for example, he acts as the agent in sending to asylums the aged imbecile of fourscore years, or the poor restless, irritable victim of consumption or other fatal organic bodily disease. moreover, it speaks ill of union medical officers, who are entrusted with the supervision, medical care and treatment, and with the dietary of the lunatic poor, to read of the neglected and wretched state in which they are too often found, both in workhouses and in their own homes, and of the condition in which they sometimes are when received into asylums. the bonds and bands, the physical exhaustion from want of food, are matters rightly placed, in a greater or less measure, in their hands. the treatment by cupping, leeches, general bleeding, blistering and purging, and by other depressing means, lies wholly at their door; and such treatment, we regret to say, is still, by some medical practitioners, deemed proper, although experience has for years shown that madness is a disease of debility, and that to use debilitating means is the most direct way to render it incurable. there is yet another indication of the deficiency of information among medical men in general, often noticed by asylum physicians, viz. their inability to recognize the peculiar form of paralysis attended with disordered mind, known as "general paralysis." where, as at st. luke's hospital, at bethlem, and at hanwell, under the recent regulation for promoting the early treatment of recent cases, the existence of general paralysis disqualifies an applicant from admission, the rejection of patients, on the ground of its presence, often gives rise to disappointment and to irritation on the part of the medical men signing the certificates, who will stoutly deny the justice of the exclusion, because they see no such loss of motion or sensation as they do in hemiplegia or paraplegia, or those forms of palsy to which they are accustomed to restrict the appellation. this defective knowledge of insanity and its treatment ought not to be found, were medical instruction complete. but whilst the medical curricula make no requirement of instruction in mental disease necessary to medical qualifications, they are expanded so as to comprehend almost every branch of human knowledge, under the heads of 'preliminary education' and of 'collateral sciences,' and yet ignore psychological medicine, as though human beings were without minds, or, at least, without minds subject to disorder. the consequence is, as facts above illustrate, medical men enter into practice with no conception of the varied phenomena of mental disorder; unable to diagnose it; unfit to treat it, and glad to keep out of the way of its sufferers. some, as before intimated, associate it, in their views, with inflammatory or congestive disease, and treat it accordingly, by blood-letting and the other parts of the so-called antiphlogistic regimen, to the speedy destruction of the patient, by increased maniacal excitement and concurrent exhaustion, or to his extreme detriment in relation to his prospects of recovery. let us hope that this state of things may ere long be entirely amended, and that medical practitioners may be required to understand disorders of the mind as perfectly as those of the lungs. before quitting the subject of this section, a brief comment on the state of the law regulating the transference of weak cases to asylums will not be misplaced. according to _sect._ lxvii. & vict. cap. , providing for the examination of alleged lunatics prior to removal to an asylum, it is enacted, "that in case any pauper deemed to be lunatic, cannot, on account of his health or other cause, be conveniently taken before a justice, such pauper may be examined at his own abode;" and that, if found lunatic, he shall be conveyed to an "asylum, hospital, or house...; provided also, that if the physician, surgeon, or apothecary by whom any such pauper shall be examined shall certify in writing that he is not in a fit state to be removed, his removal shall be suspended until the same or some other physician, surgeon, or apothecary shall certify in writing that he is fit to be removed; and every such physician, surgeon, and apothecary is required to give such last-mentioned certificate as soon as in his judgment it ought to be given." a similar provision is made in the case of "lunatics wandering at large, not being properly taken care of, or being cruelly treated" or neglected by their relatives, by the section next following (_sect._ lxviii). further, by _sect._ lxxvii., empowering the visitors of asylums to remove patients, it is provided "that no person shall be removed under any such order without a medical certificate signed by the medical officer of the asylum, or the medical practitioner, or one of the medical practitioners, keeping, residing in, or visiting the hospital, or licensed house, from which such person is ordered to be removed, certifying that he is in a fit condition of bodily health to be removed in pursuance of such order." from the clauses above quoted, it is evidently the intent of the law to shield the unfortunate sufferers from mental disease, where prostrated by exhaustion or by organic lesions, against hasty and injudicious removal detrimental to their condition, or dangerous to life; yet, as already seen, these provisions are inoperative in preventing the evil. those, indeed, regulating the transfer or removal of patients to or from an asylum are to a certain extent obligatory, and are probably attended to; but it is not so with those designed to protect lunatics from injurious removals under the direction of parochial authorities, as enacted by _sect._ lxvii. for by this section it is left to the discretion of the medical practitioner called in, to examine the patient, and to certify, in writing, to his unfitness for removal; but much too commonly, according to the testimony of every asylum superintendent, the humane intentions of the law are neglected. this th section need, therefore, to be assimilated to the th, so far as to make it imperative on the part of the medical man who examines the patient, to certify "that he is in a fit state of bodily health to be removed." this is but a slight amendment, but it might save many a poor creature in a totally broken-down, exhausted, or moribund state, from being carried to an asylum far away, only to pine away and die. it is hard to write against the members of one's own profession, but the details put forth by asylum physicians of the manner in which patients are conveyed to the public institutions, and of the state in which they are received, demand, on the score of humanity, a condemnation of the indifference and negligence which sometimes mark the performance of duties rightly chargeable to parochial medical officers. partial excuses for these officers may be found in abundance, on account of their usual wretched remuneration, and the too dependent position they occupy in reference to the parish boards appointing them; but no sufficient explanation appears for their withholding a certificate allowed by law, which might prevent the removal of a patient delirious with fever, of one perishing from heart disease or consumption, or of one dying from the exhaustion of cerebral excitement and defective nutrition. chap. vi.--causes diminishing the curability of insanity, and involving the multiplication of chronic lunatics. other causes than those already examined are in existence, sending to diminish the curability and to multiply the permanent sufferers of insanity, to be found unfortunately in the character and constitution of the very establishments constructed to afford requisite care and treatment for our pauper lunatics. according to the division of our subject (p. ), these causes belong to the second head; or are-- b. _causes in operation within asylums._ § _magisterial interference. excessive size of asylums. insufficient medical supervision._ there are in too many asylums grave errors of construction, government, and management, which detract from their utility, and damage the interests of both superintendents and patients. in several there is too much magisterial meddling, subversive of that unity of action and management which should prevail in an asylum, as it must do in a ship, and prejudicial to the position and authority of the superintendents, by diminishing their responsibility, their self-respect and independence, and their importance in the estimation of those under their direction. the visiting justices of an asylum mistake their office when they descend from matters of general administration and supervision to those of superintendence and internal management. when they exchange their legal position as occasional visitors of the wards for that of weekly or more frequent inspectors; when they directly occupy themselves with the details of the establishment, with the circumstances affecting the patients, with their occupations and amusements, irrespective of the medical officer; when they suffer themselves to be appealed to, and to act as referees in matters of internal discipline; when they assume to themselves the hiring and discharging of attendants; and when, without taking counsel with the medical superintendent, they determine on alterations and additions to their asylum,--they are most certainly pursuing a policy calculated to disturb and destroy the government and the successful operation of the establishment. a meddling policy is in all ways mischievous and bad; it irritates honourable minds, and deters them in their praiseworthy and noble endeavours to merit approval and reward; whilst it at the same time acts as an incentive to apathy, indolence, and neglect: for freedom and independence of action, a feeling of trust reposed, and of merit appreciated, are necessary to the cheerful, energetic and efficient performance of duties. so soon as the zeal of any man of ordinary moral sensibility is doubted, so soon as his competency for his office is so far questioned by the activity and interference of others in his particular field of labour, so soon is a check given to his best endeavours in the discharge of his duties, his interest in them abates, and a blow is inflicted upon his feelings and self-respect. in short, it cannot be disputed, that if an asylum have a duly qualified and trustworthy superintendent, the less a committee of visitors interferes with its internal organization and the direction of its details, the more advantageous is it for the well-being of the institution. again, many asylums have grown to such a magnitude, that their general management is unwieldy, and their due medical and moral care and supervision an impossibility. they have grown into lunatic colonies of eight or nine hundred, or even of a thousand or more inhabitants, comfortably lodged and clothed, fed by a not illiberal commissariat, watched and waited on by well-paid attendants, disciplined and drilled to a well-ordered routine, gratified by entertainments, and employed where practicable, and, on the whole, considered as paupers, very well off; but in the character of patients, labouring under a malady very amenable to treatment, if not too long neglected, far from receiving due consideration and care. although the aggregation of large numbers of diseased persons, and of lunatics among others, is to be deprecated on various grounds, hygienic and others, yet the objections might be felt as of less weight, contrasted with the presumed economical and administrative advantages accruing from the proceeding, were the medical staff proportionately augmented, and the mental malady of the inmates of a chronic and generally incurable character. but, in the instance of the monster asylums referred to, neither is the medical staff at all proportionate to the number of patients, nor are their inmates exclusively chronic lunatics. the medical officer is charged with the care and supervision of some three, four, or five hundred insane people, among whom are cases of recent attack, and of bodily disease of every degree of severity, and to whom a considerable accession of fresh cases is annually made; and to his duties as physician are added more or fewer details of administration, and all those of the internal management of the institution, which bear upon the moral treatment of its inmates, and are necessary even to an attempt at its harmonious and successful working. now, little reflection is needed to beget the conviction, that a medical man thus surcharged with duties cannot efficiently perform them; and the greater will his insufficiency be, the larger the number of admissions, and of recent or other cases demanding medical treatment. he may contrive, indeed, to keep his asylum in good order, to secure cleanliness and general quiet, to provide an ample general dietary, and such like, but he will be unable to do all that he ought to do for the cure and relief of the patients entrusted to him as a physician. to treat insane people aright, they must be treated as individuals, and not _en masse_; they must be individually known, studied, and attended to both morally and medically. if recent insanity is to be treated, each case must be closely watched in all its psychical and physical manifestations, and its treatment be varied according to its changing conditions. can a medical man, surrounded by several hundred insane patients, single-handed, fulfil his medical duties to them effectively, even had he no other duties to perform, and were relieved from the general direction of the asylum? can he exercise a vigilant and efficient superintendence over the inmates? can he watch and personally inform himself of their mental, moral and bodily condition, prescribe their appropriate treatment, diagnose disease and detect its many variations; secure the due administration of medicines and of external appliances; order the necessary food and regimen; feed those who would starve themselves; attend to casualties and to sanitary arrangements; judiciously arrange the classification, the employments and recreations; keep the history of cases, make and record autopsies, and watch the carrying out of his wishes by the attendants? can, we repeat, an asylum superintendent properly perform these, and those many other minor duties of his office, conceivable to all those who experimentally understand the matter, though not readily conveyed by description? can any person perform these duties, if they were separable, without injury to the working of the institution, from the many details of general management which the position of superintendent has attached to it? can he be justly held accountable, if the huge and complex machine goes wrong in any part? can he feel sure that his patients are well looked after, attended to according to his wishes, and kindly treated? can he do justice, lastly, as a physician, to any one afflicted patient, whose restoration to health and to society depends on the efficient exercise of his medical skill, and do this without neglecting other patients and other duties? to these questions, surely, every thinking, reasoning man will reply in the negative. the consequence is, that asylum superintendents, who thus find themselves overburdened with multifarious and onerous duties, and feel the hopelessness of a personal and efficient discharge of all of them, are driven to a system of routine and general discipline, as the only one whereby the huge machine in their charge can work, and look upon recoveries as casual successes or undesigned coincidences (_see further_, p. ). the inadequacy of the medical staff of most asylums is a consequence, in part, of the conduct of superintendents themselves, and in part of the notions of economy, and of the little value in which medical aid is held by visiting justices in general. the contrast of a well-ordered asylum at the present day, with the prison houses, the ill-usage and neglect of the unhappy insane at a period so little removed from it, has produced so striking an effect on mankind at large, that public attention is attracted and riveted to those measures whereby the change has been brought about; in other words, to the moral means of treatment,--to the liberty granted, the comforts of life secured, the amusements contrived, and the useful employment promoted,--all which can, to a greater or less extent, be carried out equally by an unprofessional as by a professional man. it is therefore not so surprising that the importance of a medical attendant is little appreciated, and that the value of medical treatment is little heeded. there has, in fact, been a revulsion of popular feeling in favour of the moral treatment and employment of the insane; and, as a popular sentiment never wants advocates, so it has been with the one in question; and by the laudation by physicians of the so-called moral means of treatment, and the oblivion into which medical aid has been allowed to fall, magistrates, like other mortals, have had their convictions strengthened, that medical superintendents, considered in their professional capacity, are rather ornamental than essential members of an asylum staff; very well in their way in cases of casual sickness or injury, useful to legalize the exit of the inmates from the world, and not bad scape-goats in misadventures and unpleasant investigations into the management, and in general not worse administrators, under the safeguard of their own magisterial oversight, than would be members of most other occupations and professions. as before remarked, the magnitude of an asylum, and the paucity of its medical officers, are matters of much more serious import where recent cases of insanity are under treatment. in a colossal refuge for the insane, a patient may be said to lose his individuality, and to become a member of a machine so put together as to move with precise regularity and invariable routine;--a triumph of skill adapted to show how such unpromising materials as crazy men and women may be drilled into order and guided by rule, but not an apparatus calculated to restore their pristine condition and their independent self-governing existence. in all cases admitting of recovery, or of material amelioration, a gigantic asylum is a gigantic evil, and, figuratively speaking, a manufactory of chronic insanity. the medical attendant, as said before, is so distracted by multitudinous duties, that the sufferer from the acute attack can claim little more attention than his chronic neighbour, except at the sacrifice of other duties. no frequent watching several times a day, and no special interest in the individual case, can be looked for. there is such a thing as a facility in observing and dealing with the phenomena of acute mental disorder, acquired by experience; but it would be well nigh unjust to expect it in a medical officer, in whose field of observation a case of recent attack is the exception, and chronic insanity the rule, among the hundreds around. the practical result of this state of things is, that the recently attacked patient almost inevitably obtains less attention than he needs from the physician, who, from lack of sufficient personal observation, must trust to the reports of others, to the diligence, skill and fidelity of his attendants, and who, in fine, is compelled to repose work in others' hands which should rightly fall into his own. this being the case, the character of the attendants for experience, knowledge, tact and honesty acquires importance directly proportionate to the size of asylums, and the degree of inability of the medical superintendents to perform his duties personally. now, though we need testify to the excellent qualities of some asylum attendants, yet, notwithstanding any admissions of this sort, it is a serious question how far such agents should be employed to supply the defects and omissions of proper medical supervision and treatment. the class of society from which they are usually derived; their common antecedents, as persons unsuccessful or dissatisfied with their previous calling, or otherwise tempted by the higher wages obtainable in asylums, are circumstances not calculated to prepossess the feelings in favour of their employment in that sort of attendance on the insane alluded to. they have no preliminary instruction or training, but have to learn their duties in the exercise of them. many are their failures, many their faults, and often are they very inefficient, as the records of every asylum testify; yet, on the whole, considering their antecedents, and the nature of the duties imposed upon them, their success is remarkable. however, whatever their character as a body, as individuals they require the direct and ever-active oversight and control of the superintendent. the institution of head-attendants is a great relief to the labour of the latter, but rightly affords him no opportunity to relax his own inspection and watchfulness. in a large asylum there must be general routine: it can be conducted only by routine; and the attendants are the immediate agents in carrying it out. their duties necessarily partake largely of a household character; they are engaged in cleaning and polishing, in bed-making and dressing, in fetching and carrying, and in serving meals. but along with these they are entrusted with certain parts of the 'moral treatment' of the patients,--in enforcing the regulations as to exercise, employment, amusement, the distribution of meals, and the general cleanliness and order both of the wards and their inmates; and in the exercise of these functions acquire much knowledge respecting the character and habits of those under their care. yet withal, they are not fit and efficient persons to have medical duties delegated to them. they are not qualified to observe and record the symptoms of disease, to note its changes, nor, except under close surveillance, to apply remedies externally or internally. such is the onset or the serious march of bodily sickness not unfrequently, that even the experienced medical observer is prone to overlook it. this is true where disease attacks those sound in mind, and able to express their sufferings, and to lend the aid of their intelligence towards the discovery of the nature and seat of their malady; but the danger of oversight is increased tenfold when the insane are the subjects of bodily lesion. where the mind is enfeebled and sensibility blunted, and where melancholy broods heavily over its victim, disease is to be discovered only by a watchful and experienced practitioner of medicine; for the unfortunate patient will make no complaint, and the fatal malady may evince itself to the ordinary uninstructed observer by no sufficient symptom to awaken attention; and even where the mind is not imbecile, nor weighed down by its fears and profound apathy, yet the features of its disorder will interfere, in most instances, with the appreciation and interpretation of the symptoms which may reach the knowledge of those about the sufferer, and thereby mask the disease from the non-professional looker-on, and render its diagnosis even difficult to the medical examiner. with respect to the female attendants of asylums, it may also be observed, that they are frequently young women without experience in disease, and rarely qualified as nurses conversant with certain medical matters; and, from our own observation, they are found to be often backward and shy in reporting particulars respecting the female patients, and badly qualified in administering to their wants when sick. moreover, equally with the male attendants, there is, by their education and training, no security for a well-governed temper, for long suffering, patience and sympathy. indeed, the wages given in most asylums are not sufficient to induce a higher class of young women to accept the onerous and often painful and disagreeable duties of attendants on the insane, than that which furnishes housemaids and kitchenmaids to respectable families. if, therefore, their origin be only looked to, it would be contrary to experience to expect from the nurses of asylums, as a body, the possession of high moral principle and sensibility, of correct notions of duty, and of a hearty interest in their duties. we make these remarks, with no intention to censure the whole race of asylum nurses, among whom are many meritorious women; but merely to enforce the opinion that something may be done to improve their character and condition, and that, as a class, they are not rightly chargeable with duties of the kind and to the extent we are engaged in pointing out. on the contrary, their history, position, and education conspire to make them servants in tone and character, unfit often to exercise the discipline and authority entrusted to them; whilst the general duties connected with the cleanliness and order of their wards and rooms, and the observation of the universal routine of the asylum, contribute to the same effect, and the more so in large establishments, where the almost constant supervision of the superintendent is wanting, where individual interest in patients is all but dead, and where their number renders the inmates mere automatons, acted on in this or that fashion according to the rules governing the great machine. from the necessity of the case, the medical superintendent of a colossal asylum is compelled mainly to trust to the observation of his attendants to discover disease, and to report mishaps. he has his mile or upwards of wards and offices to perambulate daily, and, to keep up some connexion with their four or five hundred inmates, must adopt some general plan. for instance, he refers to the attendant of each ward he enters, demands from him if he has anything to report, wends his way through the apartment, looks right and left, remarks if the floor and rooms are duly swept and garnished; now and then inspects the bed and bedding, bids good morning to more or fewer of the patients who may be present, and unless brown or jones has something to report of any one of them, bids good day to all, to recommence the same operation in the next ward. now brown or jones might have had something to report had they medical eyes, and information to detect the first symptoms of disease in one of their patients; but as they have not, the disorder has a fair opportunity to steal a march upon the doctor, and possibly to take such firm possession of its victim before this or that attendant is persuaded something is going wrong, that the doctor only commences his professional operations against it in time to render his certificate of death satisfactory, and the result explicable without a coroner's inquest. we do not blame the medical men for not doing more, but we deprecate the system which places it out of their power to do so. no one can gainsay the possibility, nay, the actual occurrence, of avoidable deaths in the large asylums we condemn; and those who know the working of such institutions, know also that the duties are performed much after the sketch delineated, and could be got through in no greatly improved fashion. but it must not be supposed, that it is only when disease exists or has to be discovered, that the delegation of the principal part of the supervision of patients to ordinary asylum attendants operates injuriously to their well-being; far from it, for many are the cases which require the presence of a more instructed and more sympathizing mind; of a person to appreciate their moral and mental condition; to overrule by his official position disorderly manifestations, to pacify the excitable, to encourage and cheer the melancholy; to espy and anticipate the wants of all; to hear the complaints of some, and to be the confidant of others; to mark the mental changes of individuals, and to adapt surrounding circumstances, their occupations and amusements accordingly. to give such superintendence, or, in other words, to apply such moral and mental treatment, the medical officer is the only fitting person; from him the patients will and do naturally look for it. let any one follow a medical superintendent in his ordinary visits through the wards; and he will observe how ardently the visit is anticipated by many; how numerous are the little troubles and ailments they wish to disclose to the physician, and only to him; how often he can arrest excitement and calm irritation, only aggravated by the interposition of attendants; how often he can recognize mental and bodily symptoms demanding attention, and, in general, how largely he can supply those minutiæ of treatment, insignificant as they appear, and unthought of as they are by others, whose moral feelings, whose intellectual acumen, whose education and manners, and whose position are deficient to conceive them, and insufficient to put them in force. there is no question, it must be granted, but that whatever medical supervision may be supplied, yet that the carrying out of most of the details of management must always devolve upon the attendants; it becomes, therefore, a matter of paramount importance to render that class of asylum functionaries as efficient as possible. they need be encouraged by good wages and good treatment; and, what is of great moment, these should be sufficiently good, to induce persons of a better class than that which usually furnishes attendants, to accept such posts. this idea will probably be scouted by the stickler to "a due regard for economy," at first sight; but we think his economical penchant might be gratified by the plan of carrying out more fully in the wards the distinction of attendants upon the insane and of household servants. for is it not practicable to import the system adopted in the large london hospitals, where the office of 'sisters,' to nurse the patients, is separated from that of under-nurse, to whom the cleanliness of the wards is committed? if so, the immediate attendants on the insane might receive higher wages without increasing the general expenditure of the asylum; for those concerned in the cleaning of the wards would only earn the wages of common household servants. we throw out this suggestion, in passing, for the nature of our treatise forbids our enlarging upon such matters of asylum organization; otherwise, much might be written respecting the duties and the remuneration of attendants, and the advantages of pensions for them after a certain term of faithful service. to conclude this topic, we may remark that it would be easy, did the subject stand in need of proof, to multiply illustrations, showing that, to transfer the work of medical and moral supervision to attendants, in any similar extent and measure to that which must of necessity prevail in the excessively large asylums which county magistrates rear in opposition to the decided opinion of those best able to judge, is to frustrate the object of those institutions as curative asylums, and to detract from their advantages as refuges for the incurable. the evils of overgrown asylums have not, as might be expected, escaped the observation and reprobation of the commissioners in lunacy, who have referred to them in several of their annual reports, but more at large in that of , wherein they detail their contest with the middlesex magistrates respecting the further enlargement of the enormous asylums of hanwell and colney hatch, and their strange defeat, the magistrates having contrived to influence the home secretary in opposition to the decided opinion of the commissioners, though seconded by experience, by the general assent of all asylum physicians, and by their position as the referees appointed by the state in all matters touching the erection and management of asylums. with this acquiescence in the erroneous scheme of a county magistracy in opposition to a government commission, we have at present no immediate concern, and may content ourselves with reporting it as an anomalous proceeding which ought never to have occurred: but to revert to the sentiments of the commissioners, they are expressed in the following quotation from the report mentioned. "it has always been the opinion of this board that asylums beyond a certain size are objectionable: they forfeit the advantage which nothing can replace, whether in general management or the treatment of disease, of individual and responsible supervision. to the cure or alleviation of insanity, few aids are so important as those which may be derived from vigilant observation of individual peculiarities; but where the patients assembled are so numerous that no medical officer can bring them within the range of his personal examination and judgment, such opportunities are altogether lost, and amid the workings of a great machine, the physician as well as the patient loses his individuality. when to this also is added, what experience has of late years shown, that the absence of a single and undivided responsibility is equally injurious to the general management, and that the rate of maintenance for patients in the larger buildings has a tendency to run higher than in buildings of a smaller size, it would seem as if the only tenable plea for erecting them ought to be abandoned. to the patients, undoubtedly, they bring no corresponding benefit. the more extended they are, the more abridged become their means of cure; and this, which should be the first object of an asylum, and by which alone any check can be given to the present gradual and steady increase in the number of pauper lunatics requiring accommodation, is unhappily no longer the leading characteristic of colney hatch or of hanwell." as may be supposed, the disposition to build huge asylums is due to the same cause as that of the detention of insane persons in workhouses, viz. to the plea of economy; a plea, which we believe to be about as fallacious in the one case as in the other. the economy is supposed to arise from the saving in commissariat matters and in the governing staff; and it is no doubt proportionately cheaper to provision persons than , other things being the same. but, on the one hand, very competent persons assert that the cost of officers and servants for a population of insane is more than double that for one of half that amount, when proportionately compared. the multiplication of inferior officers beyond a certain point entails that of superior ones in a higher ratio to overlook them; there is not the same amount of productive labour considering the number employed. the capability of the superintendent to supervise his attendants and the patients stops at a certain point, and he need call to his aid a head attendant at superior wages, and so add an extra person to the staff; if the extent of his charge is farther increased by additional patients and their necessary attendants, then an officer of a higher grade is called for, and other overlookers of attendants and of the _régime_ of the house. but figures showing the relative costs presently appealed to will do more to convince the reader of the fact under notice than any 'aids to reflection' we can supply. there can be no question, that to build asylums for the insane above a certain size is a fallacy when viewed even in an economical aspect; but when regarded in relation to its ulterior consequences, the plan is not only erroneous, but reprehensible. were it really the case that a pecuniary saving resulted from the aggregation of large masses of mentally disordered folk, according to the figures in the ledger of the institution, yet no positive gain could be boasted of until it was proved that every case was placed in the most favourable conditions for recovery. can it be pretended that the very extensive asylums of this country, with their present corps of medical officers, furnish such conditions? certainly not, if there be any truth in the account we have published of their evils and defects. and if those conditions are not supplied, the primary object of these institutions, _i. e._ the cure of the insane, is frustrated, and chronic lunacy increased. where, then, is the economy, if patients, failing to receive the means of recovery, by reason of the constitution of the asylum on so large a scale, fall into chronic disease, and become permanent burdens on its funds? where is the economy of a system, which, by standing in the way of efficient treatment, reduces the proportion per cent. of recoveries to twenty or thirty, when under different arrangements that proportion may equal per cent. or upwards? it will be a happy day for the insane, and for the contributors to their maintenance, when visiting justices arrive at the conviction, that they have not done all they can on behalf of the poor disordered people under their guardianship, when they have provided good lodging, board and clothing for them, and such a system of routine and discipline as to check the manifestation of their mental vagaries; and that it is not enough for a recent case, to introduce it into an asylum and the companionship of lunatics, with practically no positive provision for its medical treatment. it will be well, too, for the insane, when the truth becomes more generally assented to, that their malady is no mythical, spiritual alteration, but the consequence of a material lesion of the brain, the marvellous instrument, the subject and servant of the immortal soul, which can by its divine essence know no disorder. this is perhaps, strictly speaking, a digression from the subject; yet erroneous ideas are the parents of erroneous practices, and those we have hinted at form no exception to the rule. but, to return, we have some excellent illustrative remarks on the fallacy of the belief in the economy of very large asylums, contained both in the report of the american and of the english lunacy commissioners. the former thus write in their report (_op. cit._ p. ):-- "the policy which has built large establishments for the insane is a questionable one as applied to economy. after having built a house sufficiently large, and gathered a sufficient number of patients for their proper classification and for the employment of a competent corps of officers and attendants, and allowing each to receive just as much attention as his case requires, and providing no more, any increase of numbers will either crowd the house, or create the necessity of building more rooms; and their management must be either at the cost of that attention which is due to others, or must create the necessity of employing more persons to superintend and to watch them. "if the house be crowded beyond the appropriate numbers, or if the needful attention and the healing influences due to each individual are diminished, the restorative process is retarded, and the recovery is rendered more doubtful; and if additional provision, both of accommodations and professional and subsidiary attendance, is made to meet the increase of patients beyond the best standard, it would cost at least as much per head as for the original number. dr. kirkbride thinks it would cost more, and that the actual recoveries of the curable, and the comfortable guardianship of the incurable, are not so easily attained in large hospitals as in such as come within the description herein proposed. 'it might be supposed that institutions for a much larger number of patients than has been recommended could be supported at a less relative cost; but this is not found to be the case. there is always more difficulty in superintending details in a very large hospital; there are more sources of waste and loss; improvements are apt to be relatively more costly; and, without great care on the part of the officers, the patients will be less comfortable.' "besides the increased cost of maintaining and the diminished efficiency of a large establishment, there is the strong objection of distance and difficulty of access, which must limit the usefulness of a large hospital in the country, and prevent its diffusing its benefits equally over any considerable extent of territory to whose people it may open its doors." having pointed out the evils of large asylums to their inmates, the english commissioners, in their eleventh report (p. ), remark, "that the rate of maintenance for patients in the larger buildings has a tendency to run higher than in buildings of a smaller size," ... and that it therefore "would seem as if the only tenable plea for erecting them ought to be abandoned." to substantiate this assertion, they appeal to the table of weekly charges of the several county asylums, set forth in the appendix c.c. of the same report, which certainly shows that the cost per head is at its maximum in those which receive the largest number of patients. this being so, surely no one can withhold assent to the just conclusion of the commissioners, that the system of erecting asylums above certain dimensions ought to be abandoned, inasmuch as the only plea that can be urged in its behalf, that, namely, of its economy,--a bad plea, by the way, if the real interests of patients and ratepayers are concerned,--is founded in error. one more topic needs a few words, viz. the very inadequate remuneration of the medical superintendents in some asylums,--a circumstance, confirmatory of the small value assigned by their committees of visitors to professional qualifications. the worst instances of underpayment are, in fact, met with in those very asylums where the number of inmates attains its maximum, and the medical provision for their care is at its minimum; where the administrative power of the medical men is the most limited and most interfered with, and their ability to discharge their duties conscientiously and efficiently, utterly crippled by the multitude of claimants upon their attention surrounding them; and where, in fine, they are merely accessory officials, useful in cases of sickness and accident. it must, indeed, be gratifying to the advocates of the rights of women to know, that in one asylum, at least, female labour is rated as equal to male professional labour; that the matron is as well paid as the medical officers, and more valued in the estimation of the committee of visitors. but, however this circumstance may be viewed by the partisans of the interests of the fair sex, we venture to believe that to most people it will appear a gross anomaly. for our own part, we consider also that it would be to the interests both of patients and rate-payers to elevate the position of the medical superintendents of asylums, and to pay them liberally. as this section of our work is passing through the press, we have got the report, just printed, "from the select committee on lunatics," and are most happy in being able to extract from its pages a very decided opinion expressed by the earl of shaftesbury respecting the scanty salaries of medical superintendents. his lordship, in reply to the question ( ), "have you any other remedies to apply to county asylums?" said,--"i do not know whether it is a matter that could be introduced into the bill, but i think the attention of the public should be very much drawn to the state of the medical superintendents in these asylums. it is perfectly clear, that to the greater proportion of the medical superintendents in these asylums, very much larger salaries should be given; and unless you do that, you cannot possibly secure the very best service.... the great object must be to raise the status and character of the superintendents to the highest possible point." in the course of further examination on this subject, his lordship repeats and adds to the opinion just recorded. for instance, he remarks,--"one of the great defects of the present system is, that the salaries of the medical officers are much too low for the service they perform. i think that the county ought to secure the very best talent and responsibility that can be found, and they ought to raise their salaries higher. i believe in some of the asylums the salaries are higher, but i hardly know one where the salary is adequate to the work done.... i cannot think that any superintendent ought to receive much less than from £ to £ a year, besides a house and allowances." in this matter, we hope the liberal views of the noble chairman of the lunacy commission will sooner or later be reciprocated by the visitors of asylums; in the mean time, the thanks of the medical profession are heartily due to his lordship for his able advocacy of its just claims. § _limit to be fixed to the size of asylums._ one remedy against extending the evil consequences of large asylums, is to restrict the size of future buildings within certain limits. we do not hope to persuade the advocates of gigantic asylums, by any representation we can offer of their ill-effects to the patients and their false economy, to abandon their notions; but we do hope that there will be a parliamentary interdiction to their perpetuation, or that the commissioners in lunacy will have sufficient authority lodged in their hands to limit the size of future asylums. although all persons conversant with the treatment and requirements of the insane concur in condemning such huge asylums as hanwell and colney hatch, yet there is some difference in opinion, of no very great extent indeed, among them with regard to the number of patients who should be assigned to the care of a single superintendent. moreover, the number who may be treated in the same building and by one physician, will differ according to the nature of the cases--whether all acute, or all chronic, or mixed, acute and chronic together. in this country all the asylums are of a mixed character, but, excepting two or three hospitals for the insane, contain a large preponderance of chronic cases. they are, moreover, all spoken of by the lunacy commissioners as curative asylums. let us now examine the opinions of some of the best authorities upon the subject, so that a tolerably accurate judgment may be formed of the limits within which the size of asylums should be restricted. in , the metropolitan commissioners in lunacy laid it down as a rule that "no asylum for curable lunatics should contain more than patients, and is, perhaps, as large a number as can be managed with the most benefit to themselves and the public in one establishment."--report, , p. . the present commissioners have expressed similar views, which also were clearly stated before the special committee of the house of commons this year, by the noble chairman, the earl of shaftesbury. if we look to american opinion, we find (rep. commiss. massachus. , p. ) that "it is the unanimous opinion of the american association of medical superintendents of insane asylums that not more than patients should be gathered into one establishment, and that is a better number. when this matter was discussed, there was no dissent as to the maximum; yet those who had the charge of the largest hospitals, and knew the disadvantages of large numbers, thought that a lower number should be adopted. "taking the average of the patients that now present themselves in massachusetts, of whom per cent. are supposed to be curable, and need active treatment, and per cent. incurable, and require principally general management and soothing custodial guardianship, and having 'due regard to the comfort and improvement of the patients,' this limit of should not be exceeded. "the principal physician is the responsible manager of every case, and should therefore be personally acquainted with the character and condition of his patients, the peculiarities of the diseased mind, as manifested in each one, and the sources of trouble and depression, or exaltation and perversity. this knowledge is necessary, in order that he should be able to adapt his means of medical or of moral influence with the best hope of success." dr. kirkbride, in his special treatise on the construction and organization of asylums, thus expresses his views (p. ):--"whatever differences of opinion may have formerly existed on this point (the size of the institution), i believe there are none at present. all the best authorities agree that the number of insane confined in one hospital, should not exceed , and it is very important that at no time should a larger number be admitted than the building is calculated to accommodate comfortably, as a crowded institution cannot fail to exercise an unfavourable influence on the welfare of its patients. the precise number that may be properly taken care of in a single institution, will vary somewhat, according to the ratio of acute cases received, and of course to the amount of personal attention required from the chief medical officer. in state institutions, when full, at least one half of all the cases will commonly be of a chronic character, and require little medical treatment. even when thus proportioned, will be found to be as many as the medical superintendent can visit properly every day, in addition to the performance of his other duties. when the proportion of acute or recent cases is likely to be much greater than that just referred to, the number of patients should be proportionately reduced, and will then be found to be a preferable maximum. while no more patients should be received into any hospital than can be visited daily by the chief medical officer, it is desirable that the number should be sufficiently large to give an agreeable company to each class, and to permit a variety of occupations and amusements that would prove too costly for a small institution, unless filled with patients paying a very high rate of board, or possessed of some permanent endowment. it might be supposed that institutions for a much larger number of patients than has been recommended, could be supported at a less relative cost; but this is not found to be the case. there is always more difficulty in superintending details in a very large hospital--there are more sources of waste and loss; improvements are apt to be relatively more costly; and without great care on the part of the officers, the patients will be less comfortable. "whenever an existing state institution built for patients, contains that number, and does not meet the wants of the community, instead of crowding it, and thereby rendering all its inmates uncomfortable, or materially enlarging its capacity by putting up additional buildings, it will be found much better at once to erect an entirely new institution in another section of the state; for under any circumstances, the transfer of acute cases from a great distance, is an evil of serious magnitude, and constantly deplored by those who have the care of the insane." french authorities take the same views. m. ferrus, who wrote so long back as , and is now one of the inspectors of asylums in france, says, in his book, 'des aliénés,' that an asylum for the treatment of mental disorder ought not to contain above , or at most patients; but that one having a mixed population of cases requiring treatment of incurables and idiots, may receive or even such inmates, provided the physician is afforded sufficient medical assistance. however, his brother inspector, m. parchappe, whose able work, 'des principes à suivre dans la fondation et la construction des asiles d'aliénés' (published so recently as ), forms the most valuable treatise on those subjects, does not approve so large a number of inmates to be collected in an asylum as m. ferrus would sanction. he writes:--"after taking every consideration into account, i think the minimum of patients ought to be fixed at , and the maximum at . below , the economical advantages decline rapidly without a compensatory benefit; above , although the economical advantages augment, it is at the detriment of the utility of the institution in its medical character." m. guislain, the eminent belgian physician, in his grand work on insanity, remarks (vol. iii. p. ), "it would be absurd to attempt to bring together in the same place a very large population; it would tend to foster an injurious degree of excitement; would render the management difficult or impossible; would destroy the unity of plan, and neutralize all scientific effort. the maximum ought not to exceed or insane persons. this limit cannot be exceeded without injury to the well-being of the inmates; but unfortunately this has been but too often disregarded, under the plea of certain views of organization or of economy." jacobi placed the maximum of asylum population at (ueber die anlegung und errichtung von irren-heil-anstalten, p. ); roller expressed his opinion (grundsätze für errichtung neuer irren-anstalten, p. ) that one instituted for the treatment of cases (heil-anstalt) should not at the most receive above ; but that an asylum for chronic cases (pflege-anstalt), connected with the other, may admit from to , making a total population, under the same general direction, of or ; and damerow (ueber die relative verbindung der irren-heil-und pflege-anstalten) unites in the same opinion. it would be useless to multiply quotations; for, in short, there is complete unanimity among all those concerned in the direction of asylums, that such institutions, when of large size, are prejudicial to their inmates and withal not economical. there is likewise a very near coincidence of opinion perceptible with reference to the question of the number of patients which ought to be placed in the same building. supposing the asylum to be specially devoted to the reception of recent cases, it is agreed that it ought to accommodate not more than , and that the smaller number of inmates would be preferable. if a receptacle for both acute and chronic mental disease, some would limit the population to , whilst others would extend it to , provided the medical officers were increased in proportion. the example of the german asylums under the direction of damerow and roller is peculiar; for the curable and chronic cases are not mixed, but placed separately in two sections or two institutions under a general medical direction within the same area. this is the system of 'relative connexion' of the "heil-anstalt,"--institution for treatment, or the hospital, and the "pflege-anstalt," the 'nursing' institution, or the asylum; to the former they would allot , and to the latter as a maximum, making a total of inmates under the same physician in chief and the same general administration, but each division separately served by its own staff and specially organized. § _increase of the medical staff of asylums._ in the next place, the medical staff of an asylum should be large enough to secure daily medical observation and attendance for each individual patient, along with a complete supervision of his moral condition, his amusements and employment. we have said that this provision is deficient in many english asylums, a statement amply confirmed by the opinions of others. dr. kirkbride (_op. cit._ p. ) lays it down as a rule, that "where there are patients, especially if there is a large proportion of recent cases, besides the chief physician, two assistant physicians will be required, one of whom should perform the duties of apothecary. in some institutions, one assistant physician and an apothecary will be sufficient. if the full time of two assistant physicians, however, is taken up by their other duties among the patients, an apothecary may still be usefully employed in addition; and to him, other duties among the male patients may with propriety be assigned." french writers coincide in these views. m. parchappe assigns to an asylum containing to patients, a physician with an assistant, besides a dispenser; to one having to inmates, a physician, two assistants and a dispenser, besides a director to superintend the general administration, who in some institutions is also a medical man. in germany, and generally in italy, the medical staff is still larger in proportion to the number of patients. jacobi apportions to an asylum for or lunatics, a chief physician, a second, and an assistant, besides the dispenser. roller coincides with this, and the asylum at illenau under his superintendence, consisting of two divisions, one for recent, the other for chronic cases, and containing in all patients, has three physicians besides two assistants or 'internes.' so at leubus, in silesia, there are three physicians, although the inmates are only in number; and the rule is, in other german asylums, containing inmates, to have two physicians, besides one or two internes and a dispenser (pharmacien). allowing the opinions and practice of the eminent men quoted, and which in truth are shared in by every asylum superintendent, their due weight, it would seem no extravagant arrangement to allot to an asylum accommodating from to patients (recent and chronic cases together), a physician superintendent and an assistant; and a similar medical staff to an institution for or inmates, all in a state of confirmed chronic insanity, imbecility, and dementia. if the population in an asylum for chronic cases is further augmented to or ,--the latter number we hold to represent the maximum which can economically and with a just regard to efficient government and supervision and to the interests of the patients, be brought together in one establishment,--the medical superintendent will require the aid of two assistants and a dispenser. such aggregations as of to insane people are unwieldy and unmanageable with the best appointed medical staff, unless this be so numerous as utterly to invalidate the plea of economy, the only one, fallacious as it is, that can be produced by the advocates for their existence. and not only are they unmanageable, but also hygienically wrong; for it is a well-recognized fact, that the accumulation of large numbers of human beings in one place, tends to engender endemic disease, uniformly deteriorates the health, and favours the onset, progress, and fatality of all disorders. the history of large asylums bears testimony to the truth of this; for cholera has scourged more than one most severely, and dysentery and chronic or obstinate diarrhoea are pretty constant visitants in their wards. the contrast between the opinions and practice of the distinguished men referred to and those of some committees of visitors respecting the value of medical attendance on the insane, the nature of the duties to be performed, and the amount of labour the superintendent of an asylum may accomplish, is most remarkable. what those of the former are, is stated already; what those held by the latter are, we have an illustration in the administration of the colney hatch and of the hanwell asylums. in the latter establishment we find two medical men appointed to superintend insane inmates, besides nearly persons employed about it. true, we are informed by the committee, that the superintendent of the female department, who has the larger number, some , under his charge, is _assisted_ by the _matron_; and we are sure he must be thankful for any assistance rendered him; yet it is the first time that we have been called upon to recognize a matron as an assistant medical officer. however, we must accept it as a fact,--gratefully we cannot,--but with a protest against placing a subordinate officer on such an independent footing, against entrusting her with duties incompatible with her education and position, and with the relations which should subsist between her and the superintendent, and against making her his equal in the remuneration for her services. did occasion offer, we might ponder over this new development of the matronly office; inquire respecting the medical qualifications demanded, and the manner in which the hanwell committee have ascertained them; and meditate at length on the notions which govern the visiting justices in organizing and directing an asylum; but for the present, we will, for further example's sake, note some of their opinions and doings in the management of the sister 'refuge for lunatics' at colney hatch. we shall, for this purpose, appeal to the report for , and to make the quotations used intelligible, will premise, that the steward, at that date, had turned architect, and produced a plan for the extensive enlargement of the asylum as proposed by the magistrates; and that, very naturally, when writing about it, he was intent to prove that his plan was the best, the cheapest and the most convenient even to the medical superintendents who would be called upon to officiate in it when completed. this much being premised, we will quote the steward's own words. "i must also remind the committee," he observes, "that some three years since it was with them a matter of serious deliberation, whether it was advisable that the male and female departments should be placed under the care of one medical superintendent, and, in fact, whether _one medical officer_ should have the _supervision and direction of inmates_, and an extended range of building; or whether the two departments should continue, as they are at present, separate and distinct." what an excellent insight does this revelation of the cogitations of the committee-room of the middlesex magistrates afford us of the sentiments these gentlemen entertain of the requirement and value of medical skill in an asylum; of the capacity, bodily and mental, of a superintendent for work! but, without waiting to fill up a sketch of the wondrous virtues and faculties which the superintendent of the insane patients need to possess in order to know all, supervise them, direct them, and attend to the multitudinous duties of his office as a physician and director, we will by a further extract gather clearer notions of the extent of the work thought to be not too much for him. the gist of the ensuing paragraph is, that the steward strives to prove that by adding a new story here and there, besides spurs from the previous building, he will increase greatly the accommodation without much augmenting the ambulatory labours of the medical officer. and alluding to one, the male division of the establishment, he proceeds to argue, that "if it is considered feasible for one person to superintend patients of both sexes in a _building extending_ from one extreme to the other, _nearly two-thirds of a mile_, would it not be equally feasible to superintend patients in a building one half the extent [here mr. steward forgets to count the number of furlongs added by his proposed new wards], provided they are conveniently and safely located, although these patients are all males?" to this we may be allowed to subjoin some remarks we penned in a critique published in the 'asylum journal' (vol. ii. p. ) for , and in which many of the observations contained in the present work were briefly sketched. "who, we ask, can dispute the feasibility of a medical or of any other man superintending , , or two or three thousand patients, collected in an asylum or in a town, in the capacity of a director or governor, if subordinate agents in sufficient number are allowed him? but we think the question in relation to asylums is not, how we can govern our insane population most easily and at the least possible cost, but by what means can we succeed in curing the largest number of cases of insanity as they arise, and thus permanently keep down expenditure and save the rates. these results are certainly not to be attained by persevering in the old scheme of congregating lunatics by tens of hundreds, but by making suitable provision for the immediate treatment of the pauper insane in asylums properly organized for it, and under the direction of a sufficient medical staff." how totally different, too, are the views of jacobi to those of the middlesex magistrates concerning the office of superintendent, and the extent of work of which he is capable! in his treatise on asylum construction (tuke's translation, p. ), he presents the following sensible remarks:--"it is not that i should consider a more numerous family (than ) incompatible with the right management of the farming and household economy, nor with the domestic care of the patients; both these might perhaps be organized in an establishment containing a number equal to the largest just named (four or six hundred), in such a manner as to leave nothing to be desired; but it is in regard to the higher government of the establishment, and the treatment of the patients as such, in its widest signification, which must rest upon the shoulders of a single individual,--the director of the establishment,--that i am convinced the number of patients should not exceed two hundred. for when it is considered that the duties of the governor embrace the control of all the economical and domestic arrangements, as well as of the whole body of officers and servants; that he must devote a great share of his time to the writing, correspondence, and consultations connected with his office; that as first physician, he is entrusted with the personal charge and medical treatment of every individual committed to his care; that he must daily and hourly determine, not only the general outlines, but the particular details of the best means for promoting the interests of the collective community, as well as of every separate person composing it; and that, besides all this, he is responsible to science for the results of his medical observations in the establishment over which he presides; nor less so for the promotion of his own advancement as a man and a philosopher;--it will be readily granted, that the given maximum of two hundred patients for a single establishment ought never to be exceeded. indeed, a man of even extraordinary abilities would find himself unequal to the task of discharging these duties, in an establishment containing two hundred patients, were he not supported by such assistance as will hereafter be described; and were there not a great number amongst even this multitude of patients requiring not constant, or at least, a less degree of medical attention." many writers on asylum organization, particularly those of the continent, insist very strongly on so far limiting the size of asylums for the insane, that they may be superintended by one chief medical officer, aided indeed by assistants, but without colleagues of coordinate powers. the venerable jacobi took this view, and desired that the director of an asylum should be the prime authority in all its details of management, and insisted that the institution should not by its size overmatch his powers to superintend it and its inmates as individuals. thus, after reviewing the nature of the duties devolving on the chief physician, he observes (p. , tuke's translation), "it follows as a necessary consequence that one man must be placed at the head of the establishment," ... and that "his mind must pervade the whole establishment." likewise m. parchappe joins in the same opinion; and after speaking (des principes, p. ) of the impossibility of proper medical supervision in a very large asylum, observes, "that to divide the medical direction among two or more physicians is extremely detrimental to the superiority which the medical superintendent ought to hold in the general administration of asylums, and to that unity of purpose and opinions required in the interests of the patients." without citing other foreign writers to substantiate the view under consideration, we may call attention to the fact, that the lunacy commissioners, who have always so stoutly advocated the position of the medical officer as the superintendent of an asylum, likewise appear to accept the same principle; for in their eleventh report (p. ), they remark, that besides the direct injury inflicted upon patients when congregated in excessive numbers in the same institution, "experience has of late years shown, that the absence of a single and undivided responsibility is equally injurious to the general management." lastly, the committee of visitors of the surrey county asylum appear,--judging from their recent appointment of a chief physician to their institution, paramount to the medical officers of the divisions, and invested with full powers as director,--to have arrived at the just conviction that there must be unity and uniformity in the management of an institution. however, we regret to say that this conviction is unaccompanied by that other which jacobi and parchappe would associate with it, viz. that the size of the asylum should be no larger than will admit of the chief physician acquainting himself with every case individually, and treating it accordingly. whilst, indeed, by their proceeding, they constitute the chief physician a governor of a large establishment, and the director of the household and of its economy, they at the same time deprive him of his professional character by removing the opportunities of exhibiting it beyond his reach, both by the relations they place him in to the other medical officers, and by the enormous aggregation of patients they surround him with. few objections, we presume, are to be found to the principle of having a chief medical officer paramount to all others engaged in the work of an asylum; and although, considered as a _medical superintendent_, his professional qualities are not in much requisition in so large an institution as the surrey county asylum, yet we regard such an appointment as most desirable, and as preferable to the system of dividing the management between two medical officers, as pursued in the middlesex county asylums. indeed, the value of the principle of concentrating power in the hands of a chief officer, under the name of governor, or of some equivalent term, is recognized by its adoption in large institutions of every sort in the country. such enormous asylums as those referred to, partake rather of the nature of industrial than of medical establishments. their primary object is to utilize the population as far as practicable, and this end can be attained in a large majority of the inmates; consequently an able director is of more consequence than a skilful physician; for the latter is needed by a very small minority, by such a section, in fact, as is represented by the inmates of a workhouse infirmary only compared with its entire population. therefore, since the enormous asylums in existence are not to be got rid of, it is desirable to give them an organization as perfect as practicable; and it is under this aspect that we approve the plan of the surrey magistrates in appointing a director paramount to every other officer. the approval of this proceeding, however, does not minish aught from our objections to such enormous institutions, considered as curative asylums for the insane. as a refuge for chronic lunatics, an asylum so organized and superintended as is the surrey, may subserve a useful purpose; but we hold it to be an unsuitable place for recent cases demanding treatment as individuals suffering from a curable disease, and requiring the exercise of the skill and experience of a _medical_ man _specially_ directed to it. while the system of congregating so many hundreds of lunatics in one establishment, and the magisterial principle of providing for the care and maintenance and of non-intervention in the individual treatment of the insane prevail, no objection can be taken to the practice of committees of visitors in according the first merit when candidates come forward for the office of medical superintendent of an asylum, to qualifications for the routine government of large masses, for the allotment of labour, for the regulation of the domestic economy of a house, for the profitable management of the farm; in short, for qualities desirable in a governor of a reformatory-school or prison. indeed, they are right in so doing, when they wish to have a well-disciplined and profitably worked asylum; and when their institution attains the dignity of a lunatic colony, it is the best course they can adopt, for medical qualifications in such an establishment sink into insignificance amidst the varied details of general administration, which fall to the lot of the superintendent. but the case would be materially changed were the primary object of an asylum the successful treatment of its inmates, and were its dimensions within the limit to afford its superintendent the opportunity to know all, and to treat all its patients as individuals to be benefited by his professional skill. in selecting the physician of such an asylum, the administrative and agricultural qualifications he might possess, though far from being unnecessary or unimportant, should occupy a secondary place in the estimation of committees of visitors; and the primary requirement should be the possession of properly certified medical skill, of experience in the nature and treatment of insanity, in the wants and management of the insane, and of asylums for them; of evident interest and zeal in his work, and of those intellectual and moral endowments adapted to minister to the mind diseased, to rule by kindness and forbearance, and at the same time with the firmness of authority. chap. vii.--on the future provision for the insane. the only apology permissible for detaining lunatics in workhouses, is that there is no asylum accommodation for them to be had; and the only one attempted on behalf of the construction of colossal asylums is, that the demands for admission and the existing numbers are so many, and the majority of cases chronic and incurable, that the most economical means of providing for them must be adopted, which means are (so it is supposed) found in aggregating masses under one direction and one commissariat. now, whilst we have, on the one hand, contended that workhouses should be as soon as possible disused as receptacles for the insane, we have, on the other hand, endeavoured to prove that very large asylums are neither economical nor desirable, especially if the cure of lunatics, and not their custody only, is contemplated by their erection. indeed the attempt to keep pace in providing accommodation for the insane poor with their multiplication by accumulation and positive increase or fresh additions, has failed, according to the mode in which the attempt has hitherto been made. new asylums have been built and old ones enlarged throughout the country, and between and the end of , the accommodation in them had been increased threefold; whilst, at the same time, pauper lunatics had so multiplied, that their number in licensed houses remained almost the same, and the inmates of workhouses and chargeable imbeciles and idiots residing with their friends or with strangers, had very largely increased. the history of pauper lunacy in middlesex furnishes one of the most striking commentaries upon the system pursued to provide for its accumulation, and on its failure. "when (we quote the th report of the commissioners in lunacy, , p. ), in , hanwell was built for patients, it was supposed to be large enough to meet all the wants of the county. but, two years later, it was full; after another two years, it was reported to contain patients more than it had been built for; after another two years, it had to be enlarged for more; and at this time (colney hatch having been meanwhile constructed for the reception of lunatic paupers belonging to the same county) hanwell contains upwards of patients. colney hatch was opened in ; within a period of less than five years, it became necessary to appeal to the rate-payers for further accommodation; and the latest returns show that, at the close of , there were more than pauper lunatics belonging to the county unprovided for in either of its asylums." at this conjuncture the commissioners proposed a third asylum, so that they might, "by a fresh classification and redistribution of the patients, not only deal with existing evils universally admitted, but guard against a recurrence of evils exactly similar, by restoring to both asylums their proper functions of treatment and care." however, instead of adopting this wise policy, the committee of visitors insisted on following out their old scheme of adding to the existing asylums, in the vain hope of meeting the requirements of the county; and have proceeded to increase the accommodation of hanwell to upwards of , and that of colney hatch asylum to nearly beds. yet let them be assured they have taken a very false step, and that though they heap story on story and add wing to wing, they will be unable to keep pace with the demands of the pauper lunatics of the county; nor will they succeed in the attempt, until they make the curative treatment of the insane the first principle in their official attempts to put into execution those lunacy laws confided to their administration by the legislature. perceiving that this scheme of adding to asylums until they grow into small towns defeats the object of such institutions as places of treatment and cure, and that it will continue to fail, as it has hitherto failed, to supply the demands for accommodation, the commissioners remarked in their last ( th) report, that "a scheme of a far more comprehensive nature" is called for to meet increasing events. they have not hinted in that report at any scheme, but we may gather from other similar documents, especially from that of , that one important plan they have in view is to remove a large number of chronic, imbecile and idiotic patients from the existing, expensively built and organized asylums, and to place them in others erected, adapted and organized for their reception at a much less cost. by this means they count both on rendering the asylums generally, now in existence, available as curative institutions for the reception of new cases as they arise, and on arresting the tendency and the need to erect such enormous edifices as do discredit to the good sense of the magistrates of the counties possessing them. we agree with the commissioners in the general features of the plan advanced, and indeed, in our notice of the reports of the middlesex county asylums, in (asylum journal, vol. ii. p. _et seq._), advocated the establishment in that county of a third asylum especially for the treatment of the recent cases as they occurred. now the adoption of any such plan implies the recognition of a principle which has been very much discussed, viz. that of separating one portion of a number of insane people from another, as less curable or incurable. however, the commissioners in lunacy avoid discussion, and treat the matter in its practical bearings; still a brief critical examination of it will not be here misplaced. § _separate asylums for the more recent and for chronic cases._ the proposition of placing recent and chronic cases of lunacy in distinct establishments is often so put as to beg the question. it is asked if any one can undertake to say categorically that any case of insanity is incurable, and thereupon to transfer it to an asylum for incurables? to the question thus put every humane person will reply in the negative; he will start at the idea of consigning an afflicted creature, conscious of his fate, to an abode, which, like dante's inferno, bears over its portal the sentence, "abandon hope all ye who enter here." but a solution thus extorted is in no way a reply to the question of the expediency or inexpediency of making a distinction in place and arrangement for the treatment of recent and of chronic cases of lunacy severally; for this is a matter of classification, and one particularly and necessarily called for, where the insane are aggregated in large numbers, and the conditions of treatment required for the great mass of chronic cases are insufficient for the well-being of the acute. the real practical questions are,-- , cannot the subjects of recent insanity be separated advantageously, and with a view to their more effectual and successful treatment, from a majority of the sufferers from chronic insanity, imbecility and fatuity, and particularly so where the total number of the asylum inmates exceeds the powers of the medical officer to study and treat them as individuals? and, , does not the separation of the very chronic, and according to all probability, the incurable, afford the opportunity to provide suitably for the care of that vast multitude of poor lunatics, at present denied asylum accommodation; and to effect this at such an expenditure, as renders it practicable to do so, and thereby to meet the present and future requirements of the insane? several eminent psychologists have taken up the question of separating recent and probably curable cases from others found in asylums, in an abstract point of view, as if it were equivalent to forming an absolute decision on the grand question of the curability or incurability of the patients dealt with; and, as a matter of course, their adverse view of the subject has found numerous abettors. the subject is, however, well deserving of examination _de novo_, in the present juncture, when some decided scheme must be agreed to for the future provision of the insane, and for repairing the consequences of past errors. in the first place, let us ask, are the harrowing descriptions of the deep depression and despair felt by patients on their removal after one or two or more years' residence in a curative asylum to another occupied by chronic cases, true and sketched from nature? we think not. writers have rather portrayed the sensations they would themselves, in the possession of full consciousness and of high sensibility, experience by a transfer to an institution as hopelessly mad, and have overlooked both the state of mental abasement and blunted sensibility which chronic insanity induces in so many of its victims, and still more the fact that no such absolute and universal separation of acute and chronic, as they picture to their minds, is intended. indeed, we believe that, even among patients who retain the consciousness and the powers of reflection to appreciate the transfer, no such lively despair as authors depict is felt. in the course of our experience at st. luke's hospital, we have seen many patients discharged 'uncured' after the year's treatment in that institution, and transferred to an asylum, without noting the painful and prejudicial effects on their mental condition supposed. disappointment too is felt by patients rather at discovering that on their discharge from one asylum they are to be transferred to another, instead of being set at liberty and returned to their homes; for few of the insane recognize their malady, and they will think much less about the character of the asylum they are in, than their confinement and restricted liberty. again, it is not at all necessary to contrast the two institutions, by calling the one an asylum for curables, and the other an asylum for incurables; indeed, such a class as incurables should never be heard of, for we are not called upon to define it. the two asylums might be spoken of as respectively intended for acute and for chronic cases; or the one as an hospital, the other as an asylum for the insane; or better still, perhaps, the one as the primary (for primary treatment), and the other as the secondary institution. the removal, and the date at which it should take place, should be left to the discrimination of the medical officer. no period need be fixed at which treatment in the primary institution should be given up; the nature, the prospects, and the requirements of a case must determine when treatment therein should be replaced by treatment in the secondary asylum. moreover, no barrier should be opposed to a reversed transfer; a trial in another institution is often beneficial, and it would be an advantage to have the opportunity of making it. in the removal from the hospital to the asylum there would be no declaration that the patient was incurable, but only that his case was such as not longer to require the special appliances of the former, although it still needed the supervision of an asylum, and a perseverance in a course of treatment and nursing fully and particularly supplied by the resources of the latter. the determination of the cases proper for the secondary asylum lodged in the physician's hands would always enable him to retain those in the primary one, whose state, though chronic, would in his opinion be injuriously affected by a transfer, and any such others besides whose presence in the wards he might deem an advantage in the management. we mention the latter, because the opponents to separation insist on the benefits to an asylum accruing from the admixture of recent and chronic cases. and although we are not prepared to deny an opinion held by so many eminent men, yet we are on the other side not at all persuaded that the presence of old inmates is of any such real advantage, as supposed, to newly-introduced ones. we can assert, from experience, that recent cases can be very satisfactorily treated without the company of old ones; and we must, moreover, confess to certain misgivings that the actual presence of a long-standing case, often eloquent on the injustice of his detention, a job's comforter to the new-comer, by his remarks on the severity of his disorder, with the assertion added, that there was nothing the matter with the speaker's self when he came into the house; full of gossip about all the mishaps of the place, and often exercising an annoying superiority and authority assumed on account of his position as one of the oldest inhabitants. to the statement of the value of their service in aiding the attendants and in watching their neighbours, we rejoin, there should be attendants enough to perform the duties of supervision; that many recent are equally serviceable as chronic cases, and stand in need of being encouraged by the attendants in taking part in those many minor details which characterize life in the wards of an asylum. however this question of the utility of mixing chronic and recent patients together may be solved, we do not contemplate the existence of a primary asylum without the presence of more or fewer chronic cases, retained in it for the best medical and moral reasons. likewise, on the other hand, the secondary asylum will not so exclusively be the abode of incurables. the lapse of time in a case of insanity most potently affects its chances of recovery, but it is not an invariable obstacle to it; for experience decidedly demonstrates that recovery may take place years after every hope of it has passed away, and that patients rally from their affliction, not after four or five years only, but even after ten and twenty; consequently, among the large number of chronic patients under treatment, there would doubtless be every year some restored to reason and to liberty; and the dreaded foreboding of perpetual confinement and hopeless incurability could not take possession of the minds even of those whose perceptions rendered them conscious of their condition and position. to arrive at a correct judgment on this matter, let us look into it from another point of view, and compare the condition of a lunatic in the proposed chronic asylum with that of one in a large county asylum, conducted according to the prevailing system. look to the fact, that in some of the existing large curative (?) asylums, not more than from to per cent. of their six or eight hundred, or one thousand inmates, are deemed curable, and say in what respect a patient introduced into an establishment of the sort, surrounded on every side by crowds of chronic lunatics, enjoys any superiority over one transmitted to a secondary asylum of the description we contemplate. call such an institution what we may, announce it as a curative asylum, or as an hospital for curables, it matters not; to a fresh-comer it has all the drawbacks of a chronic asylum; for if he be alive to his condition, and can reflect on the position and circumstances in which he is placed, he may well find grounds for discouragement and despair on looking round the gigantic building, overflowing with the victims of chronic insanity, many of appearance, habits, and manners, repugnant to the higher and better feelings of any thinking, reflecting mortal; who count their residence there by years and even tens of years, with no prospect of release, and who, it may be in his imagination, are not, or have never been, so afflicted as himself. can such a spectacle be otherwise than injurious to a recent case, sufficiently well to perceive it on admission, or coming to appreciate it during convalescence? and must not the recognition of his position by the patient be most painful and discouraging as one of a multitude, eliciting personally, except perhaps for the few first days, no more attention than the most crazy old inmate near him; submitted to the same daily routine, and having no superior with sufficient time on hand to hear at large his tale of woe, to soothe his irritated spirit, or to encourage him in his contest with his delusions and fears? if the case of the new-comer be chronic, the conditions he finds himself placed in are sufficiently distressing and annoying; but if it be recent and curable, they are damaging to his chance of recovery. the comparison just drawn tells in favour of the system of separation. recent cases would not, in the primary institution or hospital, find themselves an insignificant few surrounded by a host of chronic patients, and they would accordingly escape the evils of such a position; on the contrary, they would be placed under the most favourable conditions for recovery, be individually and efficiently attended to, and encouraged by the many convalescents around them to hope and strive after their own restoration to health and liberty. the sketch presented of the evils of the companionship of long-disordered inmates with new-comers, especially when those are melancholic, is not an imaginary one, but drawn from experience. often will a desponding patient observe, 'i shall become like such or such moping, demented lunatic'; and superintendents, if they would, might often record the ill-effects of example of older inmates upon those newly admitted. attempts by means of classification somewhat mitigate, where made, the evils of large asylums for recent cases, by keeping these to a certain measure apart from most of the other lunatics; but nothing can do away with the injurious impression on a mind sufficiently awake to receive it (on such a one, in short, as the question of the place of treatment can alone concern),--of being one member of many hundreds who have for years and years known no other residence than the huge house of detention they are in: and there is no compensation to be had for the loss of those special appliances, and that individual treatment, which only a properly-organized hospital can supply. the last clause suggests another important argument for the treatment of recent cases in a distinct establishment or in separate sections. it is, that they require a peculiar provision made for them, involving greater expense, a more complete medical staff, a physician accustomed to their supervision and management, unfettered by that host of general duties which the presence of a multitude of chronic patients entails, and a staff of attendants disciplined to their care, and possessing many of the qualifications of nurses. moreover, the building itself for this class of patients need be more expensively constructed and fitted than one for chronic inmates. there is yet another reason against largely extending the size of a county asylum, and in favour of building, in the place of so doing, a distinct structure. this reason is to be found in the influence of distance as an obstacle to the transmission of the insane to an asylum for treatment, and to the visits of their friends to them during their confinement. the lunacy commissioners of the state of massachusetts particularly remarked the operation of distance in debarring insane patients from treatment, and illustrated it by a table showing the numbers received from different places within the district it served, and in relation to their population, into the asylum. likewise in this country, where the distance of the asylum is considerable, it is a reason for delay on the part of the parochial officers, who wish to avoid incurring the expense of removing the case, if they can in any way manage it in the workhouse. but the evil of remoteness operates more frequently, and with much cruelty, against the visits of poor persons to see their afflicted relatives in asylums. many can neither undertake the cost, nor spare the time required for the journey, notwithstanding the modern facilities of travelling. the same evil is likewise an impediment to the visits of parochial officers, who rightly possess a sort of legal guardianship over their lunatic poor in asylums. lord shaftesbury, in his evidence before the select committee, , very properly dwelt upon the advantages of visits from their friends to lunatics in asylums, and even proposed to make their visits compulsory by act of parliament. the commissioners in lunacy also, in their twelfth report ( ), gave examples of the distress not unfrequently attending on the separation of the patient in an asylum at a long distance from his friends. such distress operates to the disadvantage of the patient, and increases the sorrow of his relatives. admitting there are advantages attending the multiplication of asylums instead of aggregating lunatics in very large ones, it would appear the correct policy for boroughs to build asylums for the refuge of their own insane; or, where small, to unite with other boroughs in the county for the same purpose, in place of contributing to the county-establishment, and inducing the magistrates to extend its size injuriously. in a case such as that of middlesex, where the county asylums have attained such an unwieldy size as to be past acting as curative institutions, it would seem no improper extension of the law to make it imperative upon the large metropolitan boroughs to build apart for their own pauper lunatics. of this we are persuaded, that it would soon be found to the profit of the boroughs to undertake to provide for their own pauper insane. we regret that, in advocating the separation of chronic from recent cases, we place ourselves in antagonism to many distinguished men who have devoted themselves to the care of the insane, and among others to our former teacher and respected friend dr. conolly, from whose clinical visits and lectures at the hanwell asylum, many years ago, we derived our first lessons, in the management and treatment of the insane. but although regretting some divergence of opinion on this point, we are confident of his readiness to subscribe to that maxim of a liberal philosophy, expressed by the latin poet, "_nullius addictus jurare in verba magistri_." to return from this digression: there are two propositions to be established, viz.-- . that there are many cases of chronic mental disorder to be found in every county asylum, which encumber it, to the prejudice and exclusion of recent cases, and which could, without mental pain or damage, or any tangible disadvantage, be removed from the institution considered as a curative one. . that less elaborate structural adaptations, and a less expensive organization, would suffice for the proper care and treatment of a large number of chronic cases. let it be understood, however, that neither in past nor future remarks is it our intention to argue against the existence of mixed asylums altogether,--for by careful classification in a moderately-sized establishment, a zealous physician, properly assisted, may contrive to do his duty, both towards the comparatively few acute, and the many chronic cases under his charge; but against the pretence of admitting recent patients for curative treatment in monster institutions filled with chronic cases, where individual daily recognition is all but impracticable, efficient medical supervision unattainable, and proper medical and moral treatment impossible. deferring for the present the inquiry, under what conditions of the insane population of a county should distinct asylums be constructed, let us see what are the views of the lunacy board bearing upon the two propositions put forth, and examine further into the means of providing for the future wants of the insane. so long since as , the then metropolitan commissioners in lunacy advised the institution of distinct asylums for the more chronic cases of insanity (report, p. ), and thus expressed themselves:--"it seems absolutely necessary that distinct places of refuge should be provided for lunatic patients who have become incurable. the great expenses of a lunatic hospital are unnecessary for incurable patients: the medical staff, the number of attendants, the minute classification, and the other requisites of a hospital for the cure of disease, are not required to the same extent. an establishment, therefore, upon a much less expensive scale would be sufficient." an exception might be taken to the wording of this paragraph, as assumptive of incurability being an absolute condition, and as countenancing the scheme of a refuge distinctly provided for incurables; both of them ideas repugnant to the humane mind, instructed by experience, that insanity, at almost any lapse of time, and under most forms, is not to be pronounced absolutely incurable, or beyond the hope of cure. the scope of the argument adduced can, however, not be objected to, for it will be generally admitted that less expensive institutions are needed for very chronic cases in general, and that it is an important object to clear the present curative asylums of such cases, so as to facilitate the admission and the early treatment of recent patients. the present lunacy board, in their tenth report, , repeated these views, and pointed out the importance of erecting detached buildings in connexion with the offices used for the different occupations pursued in the establishment, instead of adding new stories, or new wings, to the main building. in the report for the following year ( ), the commissioners returned to the subject, in connexion with the proposed enlargement of the middlesex county asylums; and, having remarked on the rapid accumulation and crowding of those refuges with chronic cases, so soon after that at colney hatch was opened, thus write (p. ):--"manifestly the remedy now was, not to exaggerate the mistake already committed, by additions on the same costly scale for purposes to which they would be as inappropriate; but, by a fresh classification and redistribution of the patients, not only to deal with existing evils, universally admitted, but to guard against a recurrence of evils exactly similar, by restoring to both asylums their proper functions of treatment and care. it had become not more matter of justice to the lunatics themselves, than of consideration for the rate-payers, to urge, that the additional accommodation required being for classes of patients, as to whom, for the most part, small hope of cure remained, might be supplied in an asylum much better suited to them, and of a far less costly character." at a subsequent page (p. ), they recur to the theme. after pointing out that the plan of placing chronic, and presumed harmless patients taken out of asylums, in workhouses and "in their private homes," had signally failed, they observe:--"we are, therefore, brought back to the conclusion already stated ..., to which we find all reasoning upon the subject necessarily converge, and which we desire to impress as strongly as possible upon every one to whom the care of the insane is committed, that a new, and less costly kind of provision is now very generally required for large classes of pauper lunatics, to whom the existing expensive structures are unsuited. "our last report directed attention to the fact, that in providing, not merely for the harmless and demented, but for the more orderly and convalescing, the most suitable was also the least expensive mode; that they might satisfactorily be placed in buildings more simple in character, and far more economically constructed; and that therefore it was advisable, wherever the necessity for enlarging one of the existing asylums presented itself, that the question should be considered in reference to these two kinds of patients. and whether the mode adopted may be, for the convalescing, by simple and cheerful apartments detached from the main building, and with opportunity for association with the officials engaged in industrial pursuits; or, for harmless and chronic cases, by auxiliary rooms near the out-buildings, of plain or ordinary structure, without wide corridors or extensive airing-court walls, and simply warmed and ventilated; it is, we think, become manifest that some such changes of structure must be substituted for the system now pursued, if it be desired to retain the present buildings in their efficiency, and to justify the outlay upon them by their continued employment as really curative establishments. in this way only, as it seems to us, can justice be done to the rate-payer as well as to the pauper." lastly, in their supplementary report on lunatics in workhouses ( ), they repeat their recommendations to erect distinct inexpensive buildings for chronic cases. the paragraph containing their suggestion has already been quoted (p. ), and need not be repeated here. the noble chairman of the lunacy board, according to his valuable evidence given before the special committee of lunatics, just printed, appears to have been an early and constant advocate for constructing distinct receptacles for chronic and acute cases. in reply to query, no. , his lordship has more particularly enlarged upon the utility of the plan, and referred to the distinct proposition of the board in , that it should be carried out by the committees of asylums. the scheme of separately providing for many chronic lunatics has also received the valued support of dr. boyd (seventh report, somerset asylum, p. ), who appears to contemplate the erection of the proposed building contiguous to the existing asylum, so as to make use of the patients' labour "in preparing stone and lime, and in doing all the heavy part of the work," and to unite the two establishments under a common administration and commissariat, as a plan attended with considerable economical advantages. we do not deem it necessary to quote other authorities at large, in support of the system advocated; otherwise we might adduce many continental writers, especially among the germans. it is fair to add, however, that in france generally "mixed asylums" are the rule, and that a few of these contain five or six hundred inmates, but none, we are happy to say, have acquired the prodigious dimensions of several of our english asylums. moreover, the french system is to erect a number of detached buildings, or sections within the general area of the establishment, adapted to the different classes of the insane, according to the character of their disease, or to their condition as pensioners or paupers. we cannot here discuss the advantages or disadvantages of this plan, but it certainly obviates some of the evils of aggregation evidenced in english asylums, consisting of one continuous structure. it has just been said, that in no french asylum are so many lunatics congregated as in some english institutions; yet it is true, that the great parisian hospices contain similar numbers; for instance, la salpêtrière holds as many as ; but in this case the arrangement is such, that each of the five sections it is divided into, constitutes practically a distinct hospital for the insane, structurally separated, or quite detached; with subordinate quarters or sections, to provide for a proper classification of the inmates, and having its own grounds for exercise, &c., and its own medical staff. thus, to the patients there are five physicians, having equal power and privileges, each one the head of his own section. we would not in any way adduce this extensive parisian hospice as an example to follow, either in structure or organization; and have alluded to it in so many words only to show, that though equally large in its population, it is comparable in no other respect to the huge receptacles for the insane to be found in this country. of the prevailing system in germany we shall presently find occasion to speak. lastly, the th & th vict. cap. , gave express powers to provide for the chronic insane in distinct establishments; in order, according to the marginal abstract to sect. xxvii., "to prevent exclusion from asylums of curable lunatics; separate provision to be made for chronic lunatics." the chronic asylums were again referred to in sect. xlii. and in sect. lvi., which conferred the necessary powers on the visitors to remove the patients from one asylum to another. it is not worth while to repeat the clauses referred to, since the act was repealed by the th & th vict. cap. , and no re-enactment of them took place. nevertheless, it is to be observed, that the last quoted act contemplated the provision of asylum accommodation for the whole of the lunatics of each county, and with this object, by sect. xxx., empowered the justices, at any general or quarter sessions, to cause, or to direct the committee of visitors of the county asylum to erect an additional asylum, or to enlarge the existing building, to supply the requisite accommodation; and further, put it into the power of a secretary of state, "upon the report of the commissioners in lunacy," to call upon the magistrates of any county or borough to do the same. this enactment may be enforced by the lunacy board so far as the secretary of state can prevail with a body of magistrates to accede to it, "in such manner as the said secretary of state may see fit, and direct." but this high official has no direct power to compel a committee of visitors under any sort of penalty. "it shall be lawful for such secretary of state," says the clause, "to require" such additional asylum alteration or enlargement; but the history of the contest between that public officer and the middlesex 'committee of visitors' appears to prove that his requisition may be neglected and set aside. "he found" (as lord shaftesbury tells us in his evidence, rep. select comm., query, no. ), "that the passive resistance offered was beyond his power." we coincide with his lordship, that this ought never to have happened, and think, that the secretary of state, acting under the representations and advice of the lunacy commissioners, ought to be armed with full powers to enforce the provision for pauper lunatics in asylums being rendered equal to the demand for it, according to some plan agreed to by them, in every county, in harmony with the true intent and purpose of the act now in force. in order to facilitate the carrying out of this design, and to limit the scope for the passive resistance and attempted delay of some county magistrates, the re-enactment of the sections of the th & th vict. sect. , as quoted, appears desirable, viz. to sanction and promote the erection of distinct retreats for chronic cases. we are, indeed, glad to find, that in this recommendation we are also in accord with the noble lord at the head of the lunacy commission. looking at the matter in a general point of view, therefore, we appear to find, in the plan of separating the more chronic and most unpromising cases of lunacy from the recent and hopeful, so as to leave these in smaller numbers for the purpose of more direct and effectual treatment, one mode of improving and extending the future provision of the insane. however, to elucidate the scheme, we need go into further detail, so as to define more particularly the classes to be separately accommodated, and the extent to which the separation should be carried. the grand distinction, above employed, in discussing the question of separation, has been that of recent and chronic cases, and it has been sought to ignore that of curable and incurable, as not only undesirable, but actually mischievous. by recent cases, we understand all those where the malady is of less than one year's duration, which form a class that demands the more active and constant attention and treatment of the physician, more purely medical care, more consideration and watching from the attendants, ampler measures for moral treatment, and for exercising salutary impressions on the mind; and withal, special arrangements and fittings in the asylum building itself. all these particular conditions for treatment and management are not to be obtained by recent cases of insanity, as we have insisted on throughout this chapter, in asylums which have grown beyond the size which a chief medical officer can personally supervise in all its details, and, so to speak, animate the whole machine. if this be admitted, and if the cure of the insane be treated as the primary and essential object of asylum detention, then surely the necessity of special provision for recent cases will be recognized. in moderately sized asylums acute and chronic cases may be, as said before, received and treated together; for instance, in such as accommodate from to patients, provided that the physician-superintendent is properly assisted, for the proportion returned "as deemed curable" in the english county asylums,--a proportion which represents pretty nearly that of the recent cases, rarely exceeding or per cent.; consequently, the or demanding special supervision and medical care may be undertaken by the superintendent, if he be sufficiently assisted in the management of the chronic cases and in the carrying out of the general details of the establishment. on the other hand, a small, and perfectly distinct asylum for or patients could not be established or conducted so advantageously, and still less so economically; a circumstance, which will always avail to perpetuate the system of mixed asylums for acute and chronic cases together. nevertheless, it must be borne in mind, that the or patients in the population of or , do not constitute the whole number of recently attacked cases which may be admitted for treatment, but, so to say, the residue at a particular date; for instance, the first day of the year. moreover, if the improvements in the law, and in its administration, suggested, are carried out, and the admission of patients immediately on the occurrence of their malady be facilitated, then, as a matter of course, the proportion of those "deemed curable" would be immensely increased; so much so, that it would be a very moderate estimate to reckon on recent, to every chronic cases; or, what is equivalent to this statement, the plan of placing patients under immediate treatment would cause the progressive decrease of chronic cases, and raise the standard of the asylum as a curative institution; a happy result, which, whilst it would necessitate a more complete medical staff, would at the same time well repay its cost. passing now to asylums which exceed the limits assigned as falling within the compass of the abilities of any physician to superintend effectually for the greatest benefit to its inmates, we hold the opinion, that where these amount to or , the most just and humane, and in the end the most economical policy, is, to divide the establishment. yet even here, according to the present system regulating admissions, and the natural consequence of this, the small per-centage of acute cases under care at any one time, viz. from about to per cent. in the whole population, would perhaps be held to furnish too small a number to justify the cost of erection and maintenance of a wholly distinct hospital for their treatment. still we are confident that, if in any county where the pauper lunatics in asylums attained the number mentioned, a distinct institution for the reception of recently afflicted persons were erected, and the admission of such patients were promoted, if that institution were free as a public one for the insane other than paupers, such as those from among the middle classes, unable to meet the costs of a proper private asylum--it would secure to itself the number of patients needed to warrant its establishment as a distinct institution, succeed even as an economical arrangement, and confer an immense boon both on pauper lunatics and their more unfortunate fellows in affliction, who are too rich for the "pauper," and too poor for the "private" asylum. lastly, we come to the consideration of those overgrown establishments where from to lunatics are congregated under one roof. such monstrosities ought never to have been constructed; they are nevertheless looked upon by their promoters with admiration, and spoken of with pride, though there is nothing in them to admire besides their magnitude and pseudo-military discipline, and no more in them to be proud of as county institutions than in enormous prisons; for as the latter indicate the neglected morality of the county, so do the vauntedly large asylums prove the neglected treatment of insanity. however, as the erection of these unmanageable structures is an accomplished fact, nothing is left than to deplore the fatal mistake; to take care that it is not repeated in other instances, and to insist on the construction of distinct hospitals for recent cases. the very existence of such an hospital would invite resort to it, and bring within its agency many cases which do not find their way into the existing institutions until, most probably, all hope of cure is well nigh gone. moreover, just as mentioned above in reference to a proposed county hospital for lunatics, the law should intervene to secure the early transmission of all cases for treatment, and admission be granted to others besides paupers, under certain stipulations, by the payment of more or less of their cost. in counties with a population of lunatics of the extent named, the difficulty of placing the chronic and recent cases of insanity in separate asylums vanishes; for the latter will always be forthcoming in sufficient number to justify a distinct institution for their treatment both on medical and economical grounds; and the former, we apprehend, will always be found numerous enough to occupy the accommodation provided. as refuges for old cases, the evils of the existing gigantic establishments would happily be mitigated, although not removed, by appropriating them solely to the use of long-standing cases of lunacy. where the construction of a distinct hospital for recent cases of lunacy is decided on as necessary, it should certainly accommodate not more than . all patients should be admitted whose disease is of less than one year's duration; but this limitation should not be so absolute as to prevent the physician to admit, after the lapse of a longer period, any cases which might appear to him amenable to successful treatment;--a point in prognosis, taught, and only taught, by experience in dealing with recent insanity. although the great majority of the insane who recover, do so within the first year of their attack, yet statistics show that about per cent. are restored in the course of the second year of treatment; it would therefore seem that two years would constitute a fair and sufficient period for the duration of residence in the primary asylum. here again the knowledge and experience of the physicians must be allowed scope, both to discharge certain cases within the period named, and to retain others beyond it. we should not consider it expedient to reject all cases of epilepsy and general paralysis forthwith upon their application, although insanity so complicated is generally very hopeless; for an asylum with special appliances for treatment would at least be desirable to the victims of those sad maladies in their early stages. it is unnecessary to define the classes of lunatics who would occupy the secondary asylums. as said before, we do not contemplate these institutions as mere places of refuge; we do not consider the attempt and the hope of cure relinquished in their wards, but that the means of treatment are diligently persevered with. we would have them to be neither hopeless retreats for patients, nor institutions calculated to encourage supineness or apathy on the part of their medical officers. indeed a slender objection we have met with against the separation of the recent from chronic patients, involves a slur upon the medical profession in supposing a lack of interest and energy as incumbent upon the superintendent of an asylum for chronic lunatics;--a supposition, which reflects unfairly upon, and is untrue with respect to many superintendents of asylums actually in existence. are not interest and zeal, we may ask, exercised for the benefit of those deemed incurable; are they not exercised on account of idiots even, for whom their absence might be esteemed not surprising? if cure is not attainable, the physician to the insane, unless unfit for his calling, seeks and finds his reward in ameliorating their condition; in elevating their mental and moral, and in improving their physical being. in those counties in which the number of the insane and the prevalence of insanity are not sufficiently extended as to justify the institution of a distinct curative asylum, the plan of the union of counties, as followed for the provision of the ordinary asylums, suggests itself to the mind. practically, however, we believe, it is a plan which would not answer, since it would render arrangements between counties in possession of asylums difficult, and their accounts complicated. the only way in which it could be made feasible would be by the levying of a general rate throughout the country for the maintenance of lunatics, and by dividing the country into districts, as is the practice in scotland and ireland, apportioned in size to the population, to each of which an asylum for chronic, and one for recent cases of insanity, might be assigned. such a scheme of a general rate, however, we do not expect to see realized, although many arguments are adducible in support of it. sir charles wood, when chancellor of the exchequer, made the proposition to contribute on behalf of the maintenance of asylums a portion of the proceeds of the general taxation of the country; but the scheme met with little favour, and was dropped. the principal objections advanced against it were, that it was wrong in principle, a novel and uncalled for attempt to interfere with local government, and no more to be justified than would be a contribution from the revenue of the country towards providing for the relief of any other form of disease. respecting the last objection, it is worth noting, that district dispensaries throughout ireland are partially supported by parliamentary grants; surely, therefore, if the principle of subsidizing hospitals or dispensaries is admitted in one part of the united kingdom, there can be nothing unreasonable in a proposition to extend it to another. where to provide for the lunatic population of a county considerably exceeds the legitimate dimensions of a single asylum, and yet the proportion of recent cases is too small to warrant the construction of a distinct institution for them, we have proposed the establishment of two asylums, each of a mixed character. under such circumstances, and likewise where a single asylum threatens to outgrow a manageable size, there are certain very advantageous arrangements to be made, adapted to secure much more efficient treatment, particularly of recent cases, than is usually provided under the present system of aggregating all under one roof to be subjected to one course of routine and discipline. these arrangements are effected by the § _construction of distinct sections to asylums._ the french system of asylum construction, as before noticed, is to divide the building into several, more or less, sometimes quite distinct sections, having a general administration and offices in common. the number of sections and the character of their residents is a matter of medical classification, and in each one there is a mixture of acute and chronic cases, just as in our asylum wards; the combination being regulated by the similarity in the phases of their malady, as, for instance, if refractory; if epileptic; if clean and orderly; or demented, paralytic and dirty. in germany, on the contrary, although this same medical classification is carried out, there is a primary separation of the insane of the province or state into acute and chronic. but in the mode of providing for the treatment of the two classes apart, two plans are pursued, one termed that of "absolute separation," and the other of "relative connexion" (relativ verbindung); the former consists in placing recent and chronic cases in buildings completely detached; each one having its own staff, organization and management; the latter, whilst keeping the chronic and recent cases apart, possesses a common medical and general administration in a building composed of two principal sections, either forming parts of the same structure (as at illenau, in baden), or detached, but within the same area (as at halle, in saxon prussia). damerow is the most able advocate of the system of relative connexion, on which he has largely written, and it is one which appears to be gaining ground in germany. now, except in the case of the overgrown middlesex asylums, where the lunacy commissioners distinctly recommended a third asylum to be erected, the plans propounded by that board for affording additional accommodation in institutions already large enough, are in principle much that of the "relative connexion" system as proposed by the germans. the reports above quoted, in connexion with the question of separating recent from chronic cases, show generally what the plans of the commissioners are. they would erect "detached day-rooms and associated dormitories near the wash-houses on the women's side, and the workshops and farm-buildings on the men's side." ( th report, , p. .) to prove the advantages of the plan, they go on to say, "in making our visitations to the larger county asylums, we have repeatedly observed that a considerable portion of time is occupied by the servants, who have charge of the wash-house and workshop department, in merely collecting the patients in the wards, and in conducting them to and from their respective places of employment. in one asylum, we ascertained by minute inquiries that not less than one hour and a half was thus every day wasted by the servants, and was passed unprofitably and unpleasantly by the patients themselves. "in addition to the saving of cost and time obtained by adopting the plan we now recommend, we have the best reason for believing that the patients derived a direct benefit, in many ways, from residing in cheerful airy apartments detached from the main building, and associated with officials engaged in conducting industrial pursuits. a consciousness that he is useful, and thought worthy of confidence, is necessarily induced in the mind of every patient, by removal from the ordinary wards, where certain restrictions are enforced, into a department where he enjoys a comparative degree of freedom; and this necessarily promotes self-respect and self-control, and proves highly salutary in forwarding the patient's restoration. as a means of treatment, we consider this species of separate residence of the utmost importance, constituting in fact a probationary system for patients who are convalescing; giving them greater liberty of action, extended exercise, with facilities for occupation; and thus generating self-confidence, and becoming not only excellent tests of the sanity of the patient, but operating powerfully to promote a satisfactory cure. "the want of such an intermediate place of residence is always much felt; and it often happens, that a patient just recovered from an attack of insanity, and sent into the world direct from a large asylum, is found so unprepared to meet the trials he has to undergo, by any previous use of his mental faculties, that he soon relapses, and is under the necessity of being again returned within its walls." (p. , rep. .) the proposition of the commissioners has been carried out to a certain extent in several large asylums; for instance, at the leicester, the wakefield, and the devon. at the last it has been most fully developed in the construction of a detached building for patients; respecting the excellence and cheapness of which, we have spoken in a previous page (p. ). the views of the commissioners will meet with general approval. the prevalent system in france of breaking up an asylum into sections, more or less detached, we hold as preferable to the close aggregation of wards under one roof, with continuous corridors, seen in the majority of english asylums. the correct principle to be pursued in an asylum is, to assimilate its character and arrangements as far as possible to those of the homes of the classes of persons detained in them. can this be effected in a large building constructed as much unlike ordinary houses as it well can be; recalling in its general character that of an extensive factory, workhouse, or barrack, of somewhat more ornate architecture indeed, and with better "belongings" within and without, where the patients live by day in long corridors, and sleep by night in boxes opening out of the same, and where perhaps they are mustered and marched in great force into a great hall to eat their meals? certainly all this is not home-like, however excellent to the lovers of routine or the admirers of military discipline. but the separation into sections greatly lessens this objectionable state of things; the population becomes thereby divided, so to speak, into families, overlooked and controllable as such. the advantage of transferring an improving patient from one ward to another is considerable; but it would be much more so, if the transfer were from one section to another; for the construction of separate sections admits of the architectural arrangements, the fittings, &c., being varied to a much greater extent than they can be in the case of wards, forming mere apartments of one large building, constructed, as it must be, on a nearly uniform plan. from the same grounds likewise follow the economical advantages of distinct sections; for the more expensive building arrangements required for acute cases need not be repeated in the section for quiet, orderly, chronic, or for convalescent patients, where accommodation may be beneficially made to accord as nearly as possible with that of their cottage homes. if detached sections were adopted, the elaborate, complicated and costly systems of warming and ventilation would not be needed; there would be less to cherish the feeling of imprisonment; and, lastly, to recal the valuable observation of the commissioners before quoted (p. ), this species of separate residence would be a means of treatment "of the utmost importance, constituting in fact a probationary system," and a most excellent addition to the means of 'moral treatment' now in operation. there is one subsidiary recommendation made by the lunacy commissioners, which we cannot so freely subscribe to, that, viz. of classifying the patients in sections according to their occupations. those of the same trade or employment must, as a matter of course, be associated together, during the hours of labour; but at the expiration of those hours we would wish to see that association broken up. the congregation of the same mentally disordered persons always together is not desirable; the insane are selfish enough--absorbed in self, from the effects of their malady; and it should always be a point in treatment, to disturb this condition, to arouse the attention to others, and to other things; an effort which would be the more difficult in a small knot of people always accustomed to meet together, knowing each other's ways and whims, and each thinking the other mad, though not himself. again, if the workers are entirely separated from the drones in the hive, the latter are likely to remain drones still: they lose the benefit of example, which operates, as among children, so strongly with the insane. to apply these observations to one class of workers, for example, to the laundresses: it seems to us scarcely merciful to keep these poor patients to the wash-tub all day; at the close of their labour to turn them into an adjoining room, and at night consign them to sleep over it. instead of being thus scarcely allowed to escape the sphere and atmosphere of their toil, they should have their condition varied as far as possible, be brought into new scenes, mixed with others who have been otherwise engaged, and made to feel themselves patients in an asylum, and not washer-women. is it, in short, not a radical error in the direction of an asylum, to place the inmates in such a position and under such circumstances, as to make them feel themselves workmen under compulsion, regularly employed, dealt with only as labourers and artisans, by being kept all day in their workshops, and in the evening and night brought together, because they are workers, and unlike the other residents of the asylum, who will in their opinion come to be regarded, as unlike themselves,--as the fitting occupants, and the only patients? treated apart in the manner under notice, there would be nothing in the position or circumstances around the industrious inmate to suggest to him that he was a patient, except in name, as called so by the officials. we are, therefore, opposed to this _industrial system_ of classification, and regard medical classification as the only proper one. the division into quarters or sections is a plan more applicable to an asylum for chronic than to one for acute cases. in the latter, patients are to be treated specially and individually; and as sufferers from acute disease must be classified medically rather than with reference to any matters of management, occupation, and discipline, and are on the whole less conformable to general orders and plans: yet certain principal sections are wanted in them; as, for example, for the refractory and violent, for the quiet and orderly, and the convalescent. to some of the last named, a separate section, of a home-like character, regulated less as an asylum than as a family residence, and where the highest amount of liberty compatible with safety and order is the rule, would afford a most valuable means of treatment. § _distribution of the chronic insane in cottage homes._ the subdivision of an asylum for chronic cases could be carried very far. not only might sections be appropriated specially to idiots, to epileptics, to imbeciles, and to the very aged and infirm in an infirmary, but also to several classes of the chronic insane not falling under either of those categories, distinguishable by the greater or less amount of trust to be reposed in them, by their dispositions and tendencies, and by their industrious and moral habits. however, there must be at some point a limit to the utility of subdividing an establishment necessitated by the requirements of its administration and of an effective and easy supervision; and as yet, in this country, the system of aggregation prevails most largely over that of segregation. english asylums have, some of them, detached wards and a few farm-buildings, affording lodging to patients engaged in industrial pursuits; but the plan of segregating their residents has not been pushed farther, except to a small extent by dr. bucknill, who has placed some selected pauper lunatics in the homes of cottagers living in the vicinity of the county asylum; for we cannot call the boarding out of the imbecile poor--scattered, as it were, broad-cast over the country, disposed of in cottages, according to the notions of the inferior parochial officers, and watched over only nominally,--a system of providing for them. if system at all, it is merely one for putting them out of the way, of escaping responsibility, and of hiding them from observation. the colony of insane at gheel, in belgium, is the only one where the segregation of the insane has been systematically carried out. it presents most of the elements of success in its constitution and government. it has an organized medical staff; it is a naturally secluded locality; its sane inhabitants have been for ages accustomed to act as the guardians and nurses of the insane, and to receive them as boarders into their families. yet, notwithstanding the eulogiums of many visitors to this village, others who have more minutely examined into it have detected many irregularities, and pointed out weighty objections against its management. the questions may be fairly put,--are the irregularities inevitable? are the objections inseparable from the system? to discuss these points in detail would carry us far beyond the limits we must observe; but we may express our belief in the value of the system, considered as such, although we do not see how or where it can be applied to a similar extent as found at gheel. the irregularities which have been remarked are remediable, and the objections generally removeable. it is a defect at gheel, that there is no central establishment of the character of an asylum and infirmary, and it is a mistake to undertake the charge of recent and violent cases, and of epileptics for the most part, and likewise of paralytics, in cottages under cottagers' supervision only. other classes of patients might be pointed out as unfit residents in peasants' families. the system, in short, is pushed to an extreme in this place; but this error does not invalidate it as a system. objectionable cases for the cottage home could be collected in a central establishment, and there would be plenty left to partake of the "air libre et la vie de famille," which a recent physician of the colony of gheel, m. parigot, commended in his _brochure_ addressed to the consideration of the friends of the insane. many who have become acquainted with the system pursued at gheel have been enraptured by its many apparent advantages, the liberty it affords, and the great cheapness of its management, and have wished to import it as a whole into this country. such a scheme we regard as both impracticable and undesirable; yet we at the same time believe something may be attempted in the same direction most beneficially (see p. ). the attempt should first be made in connexion with some of our county asylums of a moderate size. a similar secluded district as that of the commune of gheel is, thanks to providence, not to be found perhaps in england; but this is of no such primary importance: a moderate distance from considerable towns, or from large villages, is all that is strictly requisite, and several asylums are so situated. the difficulty of place being encountered, a more serious one appears, viz. that of finding suitable cottagers to undertake the charge of patients. at first, a suitable class could not be reckoned on; but, according to the laws of supply and demand, it would only require time to form such a class. sufficient inducements only are wanting, and probably those supplied would be found so. it is an advantage to a cottager to have a constant lodger, to receive a certain weekly payment; and it would constitute a greater one to have as an inmate one who could assist in certain labours of the house and garden. we might hope to see old attendants of the asylum settled around, after retirement from their employment, with a pension; and to the care of such two or three, or even more, selected patients might be entrusted. if the land belonging to the asylum were of sufficient extent, the patients boarding around might still be employed upon it; or, if they were artisans, they might daily resort to its workshops, its bakehouse or brewhouse, just as the ordinary peasant labourer goes to and fro to his place of employment. the asylum would thus still reap the benefit of the patients' labour, and this arrangement, we believe, would work better than one providing for their employment with strangers at a distance from the institution. by limiting the area inhabited by patients in lodgings to that immediately surrounding the asylum, a satisfactory supervision could be exercised by the authorities; and on the occurrence of illness, or a change in the mental condition, a transfer to the asylum could be speedily accomplished. again, by keeping the insane within a moderate range of the asylum, and by retaining them as labourers on its grounds, the advantages of a central general administration would be found in the provision and distribution of food and clothing. in previous pages we have advocated, under certain conditions, the erection of distinct asylums for chronic cases of insanity; to this plan the system just developed, of boarding out a certain number in cottages, must be held as supplementary. a chronic, or a moderate, manageable-sized, mixed asylum must form the nucleus of the 'cottage system' of providing for the insane. the cases must be selected from the asylum-residents, and the selection be left with the medical superintendent. the persons receiving patients must be held responsible to the superintendent, and to the members of the lunacy board, for their proper care and management, and they must enter into some sort of covenant with the visitors of the asylum. to carry out the scheme under notice, many matters of detail are required, but these it would be out of place here to enter upon. there is this evident general and economical advantage about this 'cottage system,' that it would obviate the necessity of constructing large asylums for chronic lunatics at an inevitably heavy outlay, and also of instituting so large a staff of officers and servants as is called for to govern and conduct an expensive special establishment. in country districts, agricultural labourers and other small householders might be found willing to board, lodge, and look after patients for or shillings per week each; or, according to the plan we prefer, the asylum would provide board, and receive the benefit of the patients' labour, and only some small sum would be payable for his lodging and care. having only in view at the time the amelioration of the present condition of the insane boarded out with friends or strangers, we have proposed in a preceding page (p. ), their frequent supervision, and the arrangements necessary to their welfare, being entrusted to a distinct medical officer under the central control of the lunacy board. this plan would still hold good with reference to all those lunatics not living within the fixed radius around the asylum; within which the superintendent would be the directing authority, the supervisor and protector. moreover, as we have remarked (p. ), residence with their immediate relatives would be frequently preferable to their severance from them in order to be brought within the sphere of the asylum; and such patients would derive benefit from the inspection proposed. § _separate provision for epileptics and idiots._ the extent to which the separation of epileptics and idiots, but more particularly of the former, from other classes of mentally disordered persons should be carried, is a matter much discussed. the rule is to have epileptic wards in large asylums, although there are some epileptics in whom violence and dementia are such prominent features, as to justify their position severally with the refractory or with the demented. however, the painful features of their malady, the special provisions needed in the apartments occupied by epileptics, and the precautionary measures to be observed in their clothing and food, the ill effects of the sight of their paroxysms upon others, and other reasons well known to medical men, constitute sufficient grounds for the ordinary practice pursued of keeping epileptic lunatics generally in particular wards. this plan answers well in moderately-sized asylums; where their number is considerable, as in large establishments, we should prefer their location in a distinct section; and if the county possessed one asylum for recent, and another for chronic cases, the majority of the epileptics should be residents in a section of the latter. of the great value of separate provision for idiots we think there can be no doubt. indeed, the association of idiots with lunatics is an accident of legal origin rather than a proceeding dictated by science and medicine. the law places together idiots and lunatics under similar protection, and treats them as nearly in the same position socially. hence it has come to pass that their legal claim to care and protection has brought them within the walls of the county asylums. their presence there, however, we regard as a mistake prejudicial to their own welfare and an onus upon the asylum authorities. of old, all that was considered necessary for idiots, was to provide food and lodging for them, and to keep them out of harm's way. but, thanks to modern philanthropy, the prospects of the idiot are much improved; the amelioration of his condition is attempted; his moral, mental and physical powers are found to be improveable, and it is sought to elevate his status as a social being, and to foster his capacity for amusement and for useful employment. contrasted with previous neglect, the care and management afforded in an asylum render the poor idiots an infinite service; yet withal a lunatic asylum is not the proper abode for them. within its walls they are unfit associates for the rest of the inmates, and it is therefore felt to be necessary to place them in a special ward. too frequently this ward is in the worst placed and most forgotten section of the building, sometimes with little open space about it, and devoid of those conditions calculated to evolve the little cerebral power possessed. whatever their claims upon the attention of the medical superintendent, and however zealous he may be to discharge all his duties, yet amidst the multifarious occupations pressing upon him, and specially occupied as he is in treating insanity, that officer finds himself unable to do more than watch over the health of the idiotic inmates, and attend to the improvement of their habits: he is not in a position, and has not the opportunities to superintend the education of idiots; and we are certain that every asylum-physician would rejoice, both for his own sake and for the interests of the idiots themselves, to see them removed to a special institution, or to a section of the asylum specially organized for their care. not only are idiots in the way in a lunatic asylum, and their ward an excrescence upon it, but the organization and arrangements are not adapted for them. idiots require a schoolmaster as much as a doctor; the latter can see that all those means are provided for them to improve their habits and their physical condition; but it must devolve on a patient instructor to operate more immediately upon the relic of mental power which is accorded to them. the sooner they are brought under the teacher's care the better: experience shows that much more may be effected with idiots during their childhood than when they have arrived at a more mature age, and the developmental changes in the brain have so far ceased, that an increased production of nervous power can be scarcely looked for. this is a theme we cannot further enter upon; and to conclude this section, we may remark, that the number of idiots is so large as to justify the erection of several distinct institutions for their care and improvement. several counties might unite in the establishment of an idiot asylum, the parishes being charged for the number belonging to them in it; an arrangement, which would no more complicate parochial accounts, than where one charge has to be met (as often is the case at present) for the maintenance of a certain number of lunatics in the county asylum; a second for that of another portion in a licensed house; and a third for some others in the workhouse wards. there is another matter worth noting. the county asylums for the most part being filled to the exclusion of recent cases of insanity, and the condition of idiots being held in still less importance than that of the insane by workhouse authorities, it is not to be wondered at that, on the one hand, the admission of idiots into asylums is not promoted, and that, on the other, so many idiotic paupers are found in workhouses. to provide, therefore, cheaply for idiots in distinct institutions, and to facilitate and enforce their transfer to them, will be a means of ridding union-houses of a portion of their inmates, for which they are so entirely unfitted. to the genuine philanthropist and the truly humane, no hesitation would arise as to securing every necessary provision, and the best means for ameliorating the fate of any sufferers, and particularly that of the poor helpless idiots. but to the majority of mankind the question of cost is preliminary to the exercise of philanthropy; and some perhaps think it enough to feed and clothe, to watch and keep clean the miserable drivelling idiot, since all the money that could be spent upon one would only produce after all a poor, weak-minded creature, of little or no service in the world. this argument cannot be gain-said, though it must be condemned by every christian animated by the leading principle of his religion, that of "love." to the sticklers for economy, the proposition may be propounded for consideration, whether, on the adoption of the plan of erecting distinct asylums for the chronic insane, the idiots could be less expensively provided for in a section or "quarter" of such an asylum, properly furnished with the means of improving their condition, than in an establishment reared specially for the purpose? we content ourselves with putting the question. chap. viii.--registration of lunatics. we are fain to look upon a complete registration as a remedy to many admitted evils affecting the welfare of lunatics, and we may add, of idiots also. lunacy may be regarded as a form of "civil death;" it deprives its sufferer of his rights as a citizen; subjects him to the loss or restriction of liberty; disqualifies him from many civil privileges, and invalidates his powers of dealing with property and of executing legal documents. yet not unfrequently are lunatics, particularly among the more wealthy classes, placed under the penalties of their condition without the knowledge and authority of the officers of the state, by whom alone can such penalties be legally enforced. an individual, we say, is often deprived of his liberty and of the control over his affairs, at the hands of relatives or friends, and often indeed transferred to the house of a stranger, and there subjected to surveillance and repression; and all this done against his will, and, what is more, against the principles of english law and english freedom. elaborate provision is made and still further attempted to prevent the unnecessary detention of persons in asylums, whose cases have been regularly reported to the public authorities; but no steps have as yet been taken to discover unreported cases of alleged lunacy or private cases treated singly; no enactment contrived to bring within the knowledge of any government-board the number of persons, year by year attacked with insanity, and thereby, for a longer or shorter period, disqualified from the exercise of their civil rights. to our mind, this state of things proves a grievous defect in the law of lunacy. every person has an inherent right to the protection of the law; yet practically, if insane, he does not at all, as a matter of course, obtain it: his malady and position may very probably be unknown, and he may be helpless, or otherwise debarred from making it known. were a machinery contrived to report it to legally constituted authorities, the sufferer would have the satisfaction of feeling that he was dealt with according to law in the process of the treatment he was subjected to. were each case of lunacy systematically registered, it would, we believe, frequently save legal contests. documents dealing with property are often matters of litigation, on the plea of the insanity of the person executing them, and enormous costs are incurred on the one side to substantiate, and on the other to overthrow the plea. evidence collateral and direct is hunted up, probably years after the date of the alleged state of insanity; and often enough it comes out, or is decided by the jury, that the individual was once insane, or was so at the date of executing the document in dispute. now, in such a case, had the insanity which has been so laboriously, tediously and expensively established as having occurred, been registered in a public office at the time of its occurrence, how great would have been the gain to the feelings, the interests, and the convenience of every person concerned in the suit! if the document had been executed during the period the individual was registered as of unsound mind, the production of the register alone would have availed in proof of its invalidity. the whole litigation, indeed, might have been prevented by a search of the register before the action was begun. in the introductory chapters on the statistics of insanity, we have remarked on the very incomplete records of the prevalence of the disease, and on the consequent impossibility of discovering the actual number of the insane, and of determining the question of their increase in the community. yet it will be granted that such statistics are of great importance in a civilized country, and have bearings upon several questions in social economy. the earl of shaftesbury, in his valuable evidence before the 'select committee on lunatics' ( ), observes, in answer to query , "i think it would be very desirable if we could have proper statistics upon insanity drawn up and put upon a good footing. it would require great trouble and expense; but i think it would be worth the trouble and expense, if it could be put in the hands of some competent persons; and i have no doubt that some remarkable results would be brought out." every one, who knows how defective are the existing statistics of the disease, will cheerfully second his lordship's wish. this, however, does not go so far as our own; for lord shaftesbury appears, as far as we can judge from his words, solicitous only to take a sort of census of the insane and to deduce from it certain facts; whereas we desire not only an accurate census at present, but also a well-arranged scheme for keeping up the correctness of the statistics of the insane for the future, by making every instance of insanity returnable to the lunacy board. our desire, in short, is to bring every lunatic in the kingdom within the cognizance of the commissioners in lunacy, either directly or by some recognized agent acting in their place, so that protection and proper care may be assured to every such afflicted individual. a necessary supplementary provision to placing a name on the register would be required for removing it on certified recovery; the return of which should be made through the same channels as the report of the attack. should the registration proposed be enforced by law,--as it must be to render it at all perfect, under a penalty,--it would afford a remedy against the wide-spread plan of placing lunatics where they are unheard of, and unknown to all except those concerned in their detention. it would make the commissioners acquainted with all those very numerous patients who often drag on a painful and neglected existence in lodgings, under the control of persons of all sorts, with many of whom, it is to be apprehended, the gain to be got by their detention is the ruling motive in their actions. another advantage obtainable by a system of registration, so conducted as to ensure the reporting of cases immediately, or almost so, on their occurrence, is, that it would prepare the way for early treatment, more particularly so perhaps in the case of pauper lunatics. in the instance of the last-named class of insane, the law might render their removal to an asylum imperative, on the report of the onset of their disorder, by refusing their friends the attendance of the parochial medical officer on the patient at home as well as parochial relief, and by holding them responsible on the ground of culpable neglect for anything untoward that may happen to the patient or others. we anticipate that such an arbitrary interference of the law would be but very seldom required, for the poor mostly would be only too happy to rid themselves of a troublesome and useless member of the family. moreover, in the case of those raised above poverty and competent to provide for their insane relatives, it would be no undue stretch of legal authority to require them to satisfy some duly appointed and experienced officer, that the provisions contemplated or furnished by them for the patient were of a satisfactory character and calculated to favour recovery. the existing law, indeed, goes so far as to interfere with the friends of a lunatic and to deprive them of his care, if there be evidence to show that he is cruelly treated or neglected. it moreover imposes upon the friends all costs incurred on behalf of the patient. the section cited is _sect._ lxviii. and vict. cap. , and the suggestion we offer is but an amendment of this, so far as to require the friends of every insane person not placed in a licensed house or asylum, to show that such lunatic is properly treated and taken care of. the registration must be accompanied by visitation. the appointed medical registrar must be a witness to the fact he is called upon to register; and a case once registered should be visited at least once in three months, until recovery or death takes place, when in either case the return of the patient as a lunatic would be cancelled under a certificate to the fact supplied by the registrar. these remarks apply specially where patients are placed out singly. this plan of registration, coupled with that of visitation, would not only give security that the patient was properly treated, but would also prevent secret removals to lodgings or other uncertified receptacles for lunatics, or to a foreign country. with reference to the last-named proceeding, there ought assuredly to be some stringent legal provisions, if not to prevent it entirely, at least to place it under great restrictions. the lunacy law in its intent and administration is both stringent and minute where it deals with asylum provision for the insane in this country; but it is impotent if the friends of a lunatic choose to send him out of the country. the act cuts him off from all protection of the laws he was born under and has never forfeited. certainly it must be granted, that in every civilized country of the world lunacy laws are enacted for the protection of the insane; yet even where those laws are good, we know of no realm, and we believe there is none, where the interests of the insane are so well watched over and so adequately provided for, as in our own. this opinion we assert as the result of personal observation in most of the countries of europe, and the perusal of the reports on the state of the insane in those countries. where english lunatics are transferred to foreign public asylums--and there are many sent to such, particularly to those in france--there is often very excellent treatment and moderate state supervision; but it must be borne in mind, that the poor patients are thrust among strangers by nation, by habits, and by laws; there is no security against their being placed among the lowest classes of pensioners, who are less tenderly dealt with than our asylum paupers; and they are besides entirely at the mercy of their relatives or friends, who may as far as possible ignore their existence, prey upon their substance at home, and allow only some pittance for their maintenance in the foreign land. we are persuaded that the allusion to this defect in the laws of lunacy is sufficient to extort attention to it, and obtain its redress. the project of the law of lunacy for sardinia, which we translated for the pages of the 'journal of psychological medicine' (vol. x. p. ), contained the two following clauses:--"art. . it shall be incumbent on all individuals who shall place an insane person in a foreign asylum, to present, every thirty days, to the minister of the interior a precise report of the physical and mental condition of the patient, prepared by the physician of the asylum. art. . it shall be in the power of the minister of the interior, by previous concert with his colleague for foreign affairs, to cause any patient confined in a foreign asylum to be brought back to his own country, provided that this can be done without injury to the patient, and that he can be readily provided for in his own family, and is in possession of sufficient pecuniary means for his maintenance." some such clauses need be added to any new act of parliament for the care and treatment of lunatics in this kingdom. the commissioners in lunacy would be the right persons to move first in the matter by calling upon friends for information respecting their lunatic relatives abroad; and the foreign minister, acting upon their recommendation, would, we presume, be the proper official to arrange with the authorities abroad for the transfer of the patient to his own country. it may not be possible so to limit individual liberty as to interdict the removal of lunatics from their native country; but it is undoubtedly consonant with english law, and a matter of justice to the poor lunatic, when so dealt with by his friends as a commodity to barter about, that the legal protection due to him in his own land should be so far extended to him in a foreign state, that some public authority should be satisfied that he is duly cared for, and treated in the asylum he occupies, and has that allowance set aside for his maintenance, which his pecuniary means will justify. likewise, it would be no illegal stretch of power to call upon the friends of a lunatic, whose condition abroad was unsatisfactory, to bring him back to his native country; or, in case of their refusing to do so, to have the order carried out by others, and its costs levied upon the recusant friends. after all, however, before any such law could be effectual, the opportunities of ascertaining the existence of lunatics must be gained by the adoption of the system of registration; for, otherwise, the commissioners could derive no knowledge of the cases sent abroad, even of such as might have at one time been under their jurisdiction in licensed asylums. this remark leads us to notice another default in the lunacy code, viz. that of not enforcing a return in the case of all patients removed from asylums uncured, of the place to which they are removed. at present it is possible for the friends of a lunatic in an asylum or licensed house, to order his discharge, and to remove him where they please, to some spot unknown, if they so choose, to any but themselves. the superintendents of the asylums make a return to the lunacy commissioners that such a patient has been discharged by order of the relative or friend who authorized his admission, and that he has gone out uncured or relieved, but no information is required of the place and manner in which the lunatic is to be disposed of for the future. this circumstance is true of all cases of lunacy not found so by inquisition; that is, all except those put under the jurisdiction of the lord chancellor, or of his representatives in lunacy affairs, the masters in lunacy. for these so-called 'chancery lunatics' the sanction of the masters is required, both to the removal, to the locality, and to the persons proposed for the patient's reception. similar protection should be extended to all insane persons. the power of removal cannot be taken out of the hands of a lunatic's immediate relatives, but it may be hedged about by the restriction, that the removal of an uncured patient shall be reported to the commissioners in lunacy, who shall, after acquainting themselves with the place, the persons, and the provisions intended for the welfare of the patient, have the power to permit or to refuse it. the registration of all lunatics, particularly on the accession of their malady, is exposed to certain objections, none of which, however, are, in our opinion, of sufficient weight to militate against the plan. one great impediment to its adoption, among most persons above the condition of paupers, and in some degree among the poor also, is the desire of secrecy on the part of friends, who endeavour in every way to restrict the knowledge of their relative's mental disorder to the circle of his own family, and, if possible, to ignore its being actual insanity. on the one hand, the insanity is treated as if it brought discredit on all related to the afflicted person; and on the other, relations dread its recognition by any public authority, and set themselves in array against any inquiry which seems to trench on their private affairs. the self-same feelings and prejudices, as before shown (p. ), operate against the early and successful treatment of private patients; and as obstacles to registration they are equally to be regretted. the attempt to keep secret an attack of insanity is virtually impracticable; and though it is, in truth, a dire misfortune to both patient and family, yet is an attack of mental disorder a less discredit than one of gout, which our forefathers, in their folly, courted as a pledge of good manners and good breeding. the mischief of these notions, however, is, that they operate inimically to the interests of the patient: they stand in the way of early and appropriate treatment, and thereby tend to prolong the malady, or to render it inveterate. could the friends bring themselves boldly to face the whole truth, and admit the fact that their relative was insane, and were they encouraged by their medical man to take this true view of the matter, and to act upon it, by submitting the patient to the necessary treatment, they would very often escape the evil of exposure they dread, and soon have their relative restored to them again, instead of having, by various subterfuges, to hide his condition, and to account for his long disappearance from society and from home. besides, the hollowness of the pretences or excuses for absence must some day be found out, when the impression upon acquaintances will be the more profound, and the self-respect of the relatives suffer the wound inflicted by the exposure of the vain deception they have essayed to practise. again, the recording of the occurrence of insanity in a member of a family, which we hold to be as important to the patient and his friends as to the state, need not be regarded as an inquisitorial proceeding. it can be effected with every attention to secrecy;--the registrar would be sworn to secrecy, and the register in the central office would be a sealed book, except under certain conditions authorized by the courts of law. there is no public declaration of the fact of the insanity involved by its being recorded in the books of an office under the security of its functionaries. allowing that family prejudices and pride were of more moment than we are willing to admit, yet they should not suspend the enforcement of registration; for it must be remembered that the insane stand in a different class to patients suffering from any bodily infirmity. they forfeit by their malady the power to act in their own affairs; or their actions, if their mental disorder has been as far as possible concealed, are at any time during their life or after their death, liable to be called in question on the plea of insanity. it is undoubtedly, then, the province of the law to interpose on their behalf for the interests both of themselves and of others. the law is remiss if it permit a mentally unsound person to act on his own behalf, or others to act for him, without its sanction; and is it, we ask, consonant with english jurisprudence to detain a man against his will, in other words, to imprison him, even in his own house, and under the authority of his own immediate relatives? as soon as insanity has declared itself, so soon, we maintain, should both the person and the property of the sufferer come under the protection of the law; and this protection ought to be promptly and cheaply afforded. interference with a mentally disordered individual had better be premature than be delayed until by some actions his interests, his property, or his condition suffer. it is better for him to be found a lunatic, or, to avoid a painful and objectionable term, be adjudged to be unable properly to take care of himself and his affairs, and to be deprived for a time of liberty of action,--than that he should be treated as a sound man, and be suffered to damage his own prospects and property, and to expose himself or family to future litigation on account of his actions. when a violent or sudden death, or a suicide occurs, be it in whatever class of society it may, there is no escaping the requirement of the law, however painful be the circumstances the inquiry evokes; the coroner must hold an inquest, and the whole matter be publicly investigated before a jury. family pride and prejudice, however much they may be offended, are not allowed to stay the inquiry. why should they then be suffered to stand in the way of a simple recognition, made not through the intervention of a public court, but as secretly as possible, of a disorder, which places the sufferer in a state of social and civil death, and perhaps more seriously deranges his pecuniary affairs than even natural death itself? to repeat, the law is bound to watch over the interests of the insane, by seeing that they are properly provided for, whether in their own houses or elsewhere. no difference of opinion will occur to the proposition where the insane are placed with those who are directly or indirectly advantaged by their detention. to meet the case of such, indeed, an attempt to secure a legal recognition and protection has been made by and vict. cap. . but the same unanimity will be wanting when it is proposed to demand a return, and to sanction the supervision by public functionaries, of patients residing in their own homes: and although we have endeavoured to show good reasons why such a requirement should be made,--and the arguments could be enforced by illustrations proving that, both among rich and poor, insane persons are not satisfactorily, nay more, not even kindly treated by their own relatives,--yet lord shaftesbury stated it to be his persuasion (evid. of com. p. ) that public opinion is not ripe to introduce a new power to enter domestic establishments. nevertheless, if public opinion be not ripe for such an innovation, "it would seem (to employ sir erskine perry's query, no. , as an affirmation) that whenever a person is put under surveillance, it is not too much for the legislature to require information of that fact;" that is to say, if "domestic rights" must yet for a time be allowed to hide domestic wrongs to the helpless victims of mental disease, by denying them the protection of the law they live under, they should not avail against their being reported or registered. however, in the case of those who are obliged to seek for parochial aid, the domestic impediments to the institution of a public officer to inspect the condition of their lunatic relatives, could not be suffered to operate. now the principle of requiring a compulsory return and visitation of all insane persons confined in their own homes or in lodgings, is not new. the belgian lunacy commissioners recommended in their report on the amelioration of the lunacy laws, in , that no person should be confined in his own home, excepting after an examination by two physicians, and a certificate from them of the necessity of the restraint upon his liberty. the certificate was to be handed to the "juge de paix," who might order other visits; and if dissatisfied with the arrangements for the care and treatment of the patient, might require others to be entered into. the family medical man was likewise charged, under a penalty for non-performance, to send in a quarterly report of the state and condition of the patient. with the same object in view of obviating abuses in the domiciliary treatment of the insane, m. bonacossa, the chief physician of the turin asylum, proposed the following clause to the sardinian lunacy code:--"that, as patients are often kept in confinement in their own homes or in the houses of private persons to their detriment, it shall be made imperative on all individuals retaining an insane person in their house, to report the fact to the syndic of the commune, or to the intendant of the province." the british legislature has taken some steps in the same direction, but the fear of encroachment upon individual liberty has conspired to render its comparatively feeble attempts to provide for the due protection of single patients nugatory. by the act of , every medical man who had been in charge of a private patient for eleven months was required to send the name of the patient, under a sealed cover, to the lunacy commission; but this document could only be opened upon application to the lord chancellor. moreover, the fixing of the period of eleven months led to the transfer of the poor lunatics from one person to another within that period, so as to render the requirement of notice of his existence and detention null and void. by the and vict. cap. , this enactment was repealed, and by _sect._ xc. it was ordered that no person, except one who derived "no profit from the charge, or a committee appointed by the lord chancellor," should receive a lunatic into his house, to board or lodge, without the legal order and medical certificates, as required for admission into a registered house or asylum; and that within seven days after the reception of a lunatic, the person receiving him should transmit to the commissioners copies of the order and medical certificates, together with a notice of the situation of the house, and the name both of the occupier and of the person taking charge of the patient. it further ordered that every such patient should be visited at least once in every two weeks, by a duly qualified medical man, who should also enter a statement after each visit of the state of the patient's health, both bodily and mental, and of the condition of the house. with a view to secrecy, the same act ordained (_sect._ lxxxix.) the institution of a private committee of three of the lunacy commissioners,--to whom alone the register (_sect._ xci.) of such patients was to be submitted for inspection,--who should visit those registered single lunatics, report upon them in a private book (_sect._ xcii.), and, if desirable, send this report to the lord chancellor, who could order the removal of the patient elsewhere (_sect._ xciii.), if his state was proved to be unsatisfactory. this legal apparatus completely failed to attain the desired object: it was left open for the person receiving the patient to consider him a lunatic or not, and to report him or not at discretion; for no penalty hung over his head for disobedience to the act. so, again, the three members of the "private committee" could neither derive official knowledge of the single patients they ought to visit, nor find time or opportunity to carry out the visitation of those reported to them, living as they did scattered throughout the country. the last-named act, having thus failed in its objects, was much varied by that of ( and vict. cap. ), the last enacted, which was less ambitious in its endeavours to deal with the single private lunatics. by this act the private committee was abolished, and any member of the lunacy commission was empowered to visit those single cases reported to the board; at least one visit a year being required. but the provisions under this act are very ineffectual, both for the discovery and for the protection of the patients. the commissioners are directed to visit those only who are placed under certificate and known to them; and although every person taking charge of a lunatic or an alleged lunatic is required (by _sect._ viii.), before receiving the patient, to be furnished with the usual order and medical certificates, and (by _sect._ xvi.) to make an annual report of his mental and bodily condition to the commissioners during his residence in his house, yet there are, in the first place, no means provided for discovering the existence of the lunatic unless the person receiving him choose to report it; and again, the requirement as to the certificates and order may be complied with, but no copy be sent to the commissioners; and lastly, it is left to the will and pleasure, or to the honesty of the individual receiving the case, whether it is to be considered as one of lunacy or not. it is needless to attempt to prove that a law so loosely framed must be inoperative. no person who has given a thought to the subject but knows that there are many hundred, nay, in all probability some two thousand--as we have surmised in our estimate (p. ), single private (not pauper) patients in england: yet, as lord shaftesbury acquaints us in his evidence (committee on lunatics, p. ), only such patients are known to the lunacy board. some few of the many others may be under certificates, though unreported; still the great majority are, there is no doubt, detained without attention to any legal formalities or legal sanction, and for the most part treated as "nervous patients," and as therefore not amenable to the commissioners in lunacy. the existence of the lunacy is thus disguised under the term of 'nervousness,' and the patients robbed of the protection which the law has rightly intended, and yet signally failed to afford. the noble chairman of the lunacy commission, in the course of his able evidence before the "committee on lunatics" ( ), has given some admirable suggestions for the amendment of the law in order to bring the so-called "nervous patients" under the cognizance of the commission, and to obtain a more complete knowledge of the number and position of the many lunatics detained in private houses. according to the existing law (evid. comm. p. ), it is only, says lord shaftesbury, "where a patient is put out to board with some person who is benefited by the circumstance that the commissioners can, upon application to the chancellor, obtain access to a house where they have reasonable ground to believe there is a patient restrained, and who ought to be under certificate. but not only, in the first place, is it difficult to ascertain where such patients are, but it is also difficult afterwards, as we must have good testimony to induce the chancellor to give us a right to enter a private house, and make an examination accordingly." in reply to queries , , , , and , his lordship insists on the necessity of the law interposing to compel persons who receive any patients whatever for profit, whether styled nervous or epileptic patients, to give notice of their reception to the commissioners in lunacy, who should have the power to visit and ascertain their state of mind, and determine whether they should or should not be put under certificate as lunatic. if they were found to be only 'nervous' persons, the commissioners would have nothing to do with them. to give these suggestions a legal force, his lordship produced the following clauses as additions to the lunacy act (evid. comm. query , p. ):-- "whereas many persons suffer from nervous disorders and other mental affections of a nature and to an extent to incapacitate them from the due management of themselves and their affairs, but not to render them proper persons to be taken charge of, and detained under care and treatment as insane; and whereas such persons are frequently conscious of their mental infirmity, and desirous of submitting themselves to medical care and supervision, and it is expedient to legalize and facilitate voluntary arrangements for that object, so far as may be compatible with the free agency of the persons so affected, be it enacted, as follows:-- "subject to the provisions hereinafter contained, it shall be lawful for any duly-qualified medical practitioner or other person, by his direction, to receive and entertain as a boarder or patient any person suffering from a nervous disorder, or other mental affection requiring medical care and supervision, but not such as to justify his being taken charge of and detained as a person of unsound mind. no person shall be received without the written request in the form, schedule --., to this act, of a relative or friend who derives no profit from the arrangement, and his own consent, in writing, in the form in the same schedule, the signatures to which request and consent respectively shall be witnessed by some inhabitant householder. "the person receiving such patient shall, within two days after his reception, give notice thereof to the commissioners in lunacy, and shall at the same time transmit to the commissioners a copy of the request and consent aforesaid. it shall be lawful for one or more commissioners, at any time after the receipt of such notice aforesaid, and from time to time, to visit and examine such patient, with a view to ascertain his mental state and freedom of action; and the visiting commissioner or commissioners shall report to the board the result of their examination and inquiries. no such patient shall be received into a licensed house." lord shaftesbury proceeds to say that by this plan "every person, professional or not, who receives a patient into his house, or attends a patient in such circumstances, should notify it to the commissioners; but we should not require them to notify it until after three months should have elapsed, because a patient might be suffering from brain fever, or a temporary disorder; but i would say that any person accepting or attending a patient in these circumstances should notify it to the commissioners, after three months shall have elapsed from the beginning of the treatment." in the after part of his evidence (query , p. ), his lordship desired to supply an omission in the preceding clause, viz. to make it compulsory on a medical man attending a nervous patient, and not only the person receiving one, to communicate the fact to the commissioners, so that they might go and see him, and form their own judgment whether he should or should not be placed under certificate. there is much that is excellent in the clauses suggested, yet some improvement is needed in their wording. thus it is provided that a medical practitioner, or a person under his direction, may receive a 'nervous' patient, and the subsequent provisions are made in accordance with this principle, as though only medical men could receive such patients, or that they alone were amenable to the laws regulating their detention. sir erskine perry detected this oversight (query ), and lord shaftesbury admitted the want of sufficient technicality in the drawing up of the clause. again, we do not conceive there is adequate reason for postponing the report of a case until three months after the commencement of the treatment; a delay, not imposed, indeed, under the clause as propounded, but implied in his lordship's subsequent remarks. to refer to the class of patients mentioned as properly exempt from a return to the lunacy commission until after three months have elapsed:--a case of so-called 'brain fever' is not likely to be sent from home to board with a medical man or other person during the existence of the acute malady commonly known under that term. on the other hand, genuine cases of acute mania get called by the same name, and such certainly ought to be reported to the commissioners before the expiration of three months. besides, the delay to notify 'temporary disorder' for so long a time is likely to be injurious and to defeat the object of the clause. delirium or mental aberration lasting for three months is something more than a symptom of any one commonly recognized bodily disease, and rightly deserves the designation of madness; and, if this be the case, it also claims the supervision of the commissioners or other duly appointed officers over its management, particularly when this is undertaken, with the object of profit to the person treating it. moreover, the delay proposed involves an idea not flattering to the discernment and the powers of diagnosis of the members of the medical profession; for its intent, we take it, is solely to prevent giving unnecessary trouble and distress to all concerned, in having to send a notification of the disorder, while yet unconfirmed, to the commissioners: an annoyance which ought never to happen; for every medical man should be able to distinguish the delirium of fever, of drinking, or of other corporeal conditions it is sometimes linked with, from insanity; and it would be very discreditable to the medical skill of any one not to find out the true nature of the case long before the expiration of three months. further, for the sake of promoting early and efficient treatment, the notification of disorder, whether called 'nervous' or mental, should be given before the end of three months. the change from home to board with a medical man may be all that is desired for a 'nervous' patient; but if it be a case of recent insanity, something more than solitary treatment at home or in a private lodging is essential. the evils of the last-named plan are largely illustrated in the evidence of lord shaftesbury himself, and of other witnesses before the select committee. it is consequently desirable to have cases, under what designation soever they are received, reported before the close of three months, so that the commissioners may see them and determine whether or not the conditions under which they are placed are conducive to their well-being and recovery, and may give their recommendations accordingly. the proposition appended by the noble earl, to the effect that every medical man attending a 'nervous' patient should communicate the fact to the lunacy commissioners, is most important, and in its scope approaches that of enforcing a registration, as advocated by ourselves: for we presume that his lordship would desire the paragraph to be so worded, that the notice should be demanded from the medical attendant, as well in the case of a lunatic or alleged lunatic as in that of a so-called 'nervous' patient. a similar defect attaches to the clauses proposed as to those actually in force under existing acts; that is to say, the want of means of enforcing them. by the act th and th vict. cap. , _sect._ xlv., it is made a misdemeanour to receive or detain a person in a house without a legal order and medical certificates; and by _sect._ xliv. it is declared a misdemeanour to receive two or more lunatics into any unlicensed house. these clauses are, however, valueless in preventing the abuses they aim at checking; for, as so often said before, alleged and undoubted lunatics are perpetually received by persons into their private houses as 'nervous' patients, mostly without certificates, or, if under certificates, unreported to the commissioners. no solid argument is conceivable, why a person having two lunatics under charge should be liable to punishment for a misdemeanour, whilst another may detain one with impunity. the penalty should be similar in each case. the same legal infliction, too, should, we think, be visited alike upon the friends putting away a relative under private care and upon the individual receiving him. it might also be rendered competent for any relative or friend to call upon those concerned in secluding, or in removing the patient from home under restraint, to show cause for so doing; and the production of the medical certificates and of a copy of the notification sent to the commissioners, with or without a certificate from such an officer as we propose as a district medical inspector, should serve to stay proceedings. the detention or the seclusion of a person, whether at home or elsewhere, contrary to his will, and at the sacrifice of his individual liberties and civil rights, appears to us tantamount to false imprisonment, and an act opposed to the principles of english liberty, whether it be perpetrated by relatives or strangers, if done without the knowledge and sanction of the law and of its administrators. but whatever amendments be introduced, we hold them to be secondary to a complete system of registration of lunatics and 'nervous' patients rendered compulsory upon the medical men attending them, or taking them under their charge, and likewise upon the relatives, or, in the case of paupers, upon the relieving officers or overseers of their parish. the family medical attendant appears the most fitting person to make a return of the sort: his professional knowledge must be called in to testify to, or to decide on, the nature of the disease, and the fact can be best communicated by him in his medical capacity. the lunacy commissioners of massachusetts had recourse to the physicians living in every town and village of the state; and it was only by so doing that they were enabled to arrive at an accurate knowledge of the number of the insane, and to correct the statistics gathered through other channels, which might, at first sight, have appeared ample to their discovery. further, as already noted, we advocate another step in conjunction with registration; for we would convey the notification of the existence of the alleged insane or nervous patient primarily to the district medical officer, and then call upon this gentleman to visit the patient, with every deference to family sensitiveness and necessary privacy, in order that he may make a report on the nature and character of the malady, and the conditions surrounding the patient, to the commissioners in lunacy. the immediate visitation of a reported case by such a skilled officer would be of advantage to the patient, to his friends, and to the commissioners. without overruling or controlling the medical attendant or others, his advice on the wants of the case would be useful, and he could fulfil one purpose proposed to be effected by a visit from the commissioners, viz. that of signifying whether the patient should be placed under certificates or not; his opinion being subject to revision by the visiting commissioners, should the nature of his report appear to them to call for their personal examination of the case. if, again, medical certificates were required, these might be countersigned by the district officer in question, after a separate examination, and an additional protection be thus applied against illegality in the legal documents required to sanction the patient's restriction or detention. this plan would likewise afford a check to the transmission to the lunacy board of those insufficient certificates which at the present time involve such frequent trouble. but, although the district officer's signature or certificate might by its presence be held to increase the validity of the evidence for a patient's insanity, yet its absence, where his opinion differed from that of the medical men called in to sign the legal certificates, should not operate as a bar to dealing with the alleged lunatic as such, until an examination by one of the board of commissioners could be had; and therefore the registrar should be bound to transmit the order and certificates, when properly filled up, accompanied by his own report of the case. supposing these provisions just sketched to be carried out, and that an individual is found lunatic by his immediate medical attendants, by the official registrar, a perfectly disinterested person, and, sooner or later by the commissioners, there certainly appears no reason why the lunatic himself, or any officious friend or sharp lawyer in search of business, should be able to challenge by legal proceedings a decision so cautiously arrived at by so many competent persons. the determination of a trial by jury we hold to be less satisfactory, and less likely to be in accordance with fact; so easy is it in some instances for a clever counsel to frighten witnesses, to get fallacious evidence, and to represent his client's cause, and appeal to the passions of the jurors of very miscellaneous mental calibre, often with more feeling than judgment, and generally to use all those arts which are thought legitimate by the practitioners of the law to win a verdict. there is one subject well deserving notice; one which acts as a stumbling-block to the treatment of mentally disordered persons, and will also do so, more or less, to registration; viz. the present legal necessity of placing all in the category of lunatics. the practical questions are, whether this proceeding is necessary, and if not, whether the present form of the order and medical certificates cannot be so modified, as to lessen the objections of friends to place their suffering relatives under the protection of the law and its officers; we should add, to remove the objections of patients themselves; for it is irritating to the minds of certain classes of the insane to know that they are accounted lunatics by law equally with the most degraded victims of mental disorder with whom they may find themselves associated; and it offers an impediment at times, as those conversant with the management of asylums know, to patients voluntarily submitting themselves to treatment. the adoption of two forms of certificate, one for persons found to be of unsound mind, and the other for the class of 'nervous' patients, would undoubtedly involve some disadvantages. it would be the aim of all those in a position to influence opinion, to obtain the registration of their insane friends under the ambiguous appellation of 'nervous' patients; and this could be met only by placing it in the power of an officer attached to the lunacy commission to make the decision, after an examination of the patient, respecting the nature of the certificate required. perhaps the examination to be made by a commissioner, according to the scheme propounded by lord shaftesbury (p. ), is intended, though not said to be so, to serve the purpose referred to; otherwise it would be a defect in his lordship's plan, that no person is empowered to discriminate the individuals he would legislate for as 'nervous' patients not properly the subjects for asylum treatment, from those mentally disordered persons who are so. although the introduction of a modified or mitigated form of certificate of mental unsoundness, besides the one now in use, may be open to the objection mentioned, and to others conceivable, yet it would, on the other hand, possess certain advantages, and would, among others, be certainly an improvement upon the present state of things, by promoting the registration of numerous cases now unknown to the administrators of the lunacy laws. it would be impossible to draw the line rigidly between really insane persons and those suffering from temporary delirium, or 'nervousness.' no ready cut and dried definitions of insanity would serve the purpose, and the discrimination of cases in order to their return as 'lunatic,' or as 'nervous,' must within certain limits rest upon definitions imposed by law, and beyond these to common sense and professional experience. with such criteria to guide, no sufferers from the delirium of fever, of alcoholism, or other kindred morbid state, and no eccentric personages whose peculiarities are not necessarily injurious to themselves, to others, or to their property, should be brought within the operation of the laws contrived to protect positive mental disorder. they would not occupy the same legal position as those classes proposed to be under one or other form of certificate; for, in our humble opinion, all those under certificate, whether as insane or as 'nervous' patients, should be under like legal disabilities in the management of themselves and their affairs, and partake of equal legal protection. in the preamble to the clauses suggested by lord shaftesbury, the nervous disorder or other mental affection is very properly supposed to be of a nature and extent to incapacitate the sufferers from the due management of themselves and their affairs; that is, that they are to be rightly placed under similar civil disabilities with the insane;--a position, which could, moreover, not be relaxed even in favour of those voluntarily placing themselves under treatment, without giving rise to much legal perplexity and quibbling. but this last-named result we have some apprehension might ensue, if the next sentence of the clause to those quoted were retained: forasmuch as, farther to define the class of persons to be legislated for, this sentence requires that their disorder shall not render them proper persons to be taken charge of and detained under care and treatment as insane; a condition, which seems to exclude them from the catalogue of insane persons in the eye of the law, and therefore to relieve them from the legal disabilities attaching to lunatics; but, perhaps, it is from ignorance of law that we cannot conceive how it is proposed to provide for the care and official supervision of persons alleged to be incapacitated from the management of themselves and their affairs, and at the same time to pronounce them unfit to be dealt with as insane. the scotch asylums act ( ) contains a clause ( st) to authorize the detention of persons labouring under mental aberration, in its earlier stages, in private houses, under a form of certificate set forth in schedule g, wherein the medical man certifies that the individual in question is suffering from some form of mental disorder, not as yet confirmed, and that it is expedient to remove him from his home for temporary residence in a private house (not an asylum), with a view to his recovery. this plan of disposing of a patient is permitted to continue for six months only. by some such scheme as this, it seems possible to bring the sufferers from disordered mental power within the cognizance of the public authorities appointed to watch over their interests, and at the same time to rescue them from being classed with the inmates of lunatic asylums, and from the frequently painful impression, in their own minds, that they are publicly considered to be lunatics. to avoid disputes and litigation, however, such patients should, even when under that amount of surveillance intimated, be debarred from executing any acts in reference to property, which might be subsequently called into question on the plea of their insanity. according to the present state of the law, there is no intermediate position for a person suffering from any form of cerebral agitation or of mental disturbance; he must be declared by certificate a lunatic, or his insanity must be called 'nervousness.' under the latter designation of his malady, he cannot receive treatment in an asylum or licensed house; and yet, all his acts in behalf of his own affairs, that is, where his friends do not arbitrarily assume the power to act for him, may at any future time be disputed as those of a lunatic. yet, as noticed more than once before, all the probable disadvantages of this anomalous position are risked in very many cases, and the best chances of recovery thrown away, because the friends (and the patient too very often) are unwilling to have him certified as a lunatic. an alteration, therefore, of the law seems much required in this matter. the earl of shaftesbury has met this want partially by the clause he has proposed in favour of 'nervous' patients, and his lordship, in a preceding portion of his evidence (queries - ), expressed himself in favour of mitigating the wording of the medical certificates required. we have also heard dr. forbes winslow express sentiments to a similar effect, that the law ought to recognise the legality of placing certain patients suffering from some varieties of mental disturbance under treatment in licensed houses, and especially those who will voluntarily submit themselves to it, without insisting on their being certified as lunatics. this is not an improper place in our remarks to direct attention to the proposition to legalize the establishment of intermediate institutions, of a character standing midway, so to speak, between the self-control and liberty of home and the discipline of the licensed asylum or house, to afford accommodation and treatment for those who would be claimants for them under the mitigated certificates above considered. such institutions would be very valuable to the so-called 'nervous patients,' and to the wretched victims of 'dipsomania'--the furor for intoxicating drinks; for there are many advantages attending the treatment of these, as of insane patients, in well-ordered and specially arranged establishments, over those which can be afforded in private houses. it may likewise be added, that the facilities of supervision by the appointed public functionaries are augmented, and greater security given to the patients when so associated in suitable establishments. we add this because, although the certificates are mitigated in their case, and they are not accounted lunatics, yet we regard that degree of visitation by the commissioners, indicated by lord shaftesbury, to be in every way desirable. it is not within the compass of this work to enter into the details for establishing and organizing these retreats: they have been discussed by several physicians, and more particularly in scotland, where, it would seem, examples of drunken mania are more common than in england. chap. ix.--appointment of district medical officers. throughout the preceding portion of this book we have pointed out numerous instances wherein the legal provision for the insane fails in its object from the want of duly-appointed agents, possessing both special experience and an independence of local and parochial authorities; and we have many times referred to a district medical officer, inspector or examiner, as a public functionary much needed in any systematic scheme to secure the necessary supervision and protection of the insane, particularly of such as are paupers. we will now endeavour to specify somewhat more precisely the position and duties of that proposed officer; but, before doing so, we may state that the appointment of district medical officers is not without a parallel in most of the continental states. in italy there are provincial physicians, and in germany kreis-artzte, or district-physicians, who exercise supervision over the insane within their circle, besides acting in all public medico-legal and sanitary questions. in our humble opinion, the institution of a similar class of officers would be an immense improvement in our public medical and social system. the want of public medical officers to watch over the health and the general sanitary conditions of our large towns has been recognised and provided for; although the machinery for supplying it is much less perfect than could be wished: for to entrust the sanitary oversight and regulation of populous districts to medical men engaged in large general practice, often holding union medical appointments, and rarely independent of parish authorities, is not a plan the best calculated to secure the effectual performance of the duties imposed; for, as a natural result, those duties must rank next after the private practice of the medical officer, and constitute an extraneous employment. in the establishment of a class of district medical officers,--chiefly for the examination, supervision and registration of all lunatics or alleged lunatics and 'nervous' patients not in asylums, but placed, or proposed to be placed, under surveillance, accompanied with deprivation of their ordinary civil and social rights,--we would protest against the commission of such an error in selecting them, as has, in our opinion, occurred in the appointment of sanitary medical officers generally: for the performance of the duties which would devolve on the district medical officer, it would indeed be essential that he should be perfectly independent of local authorities, that he should not hold his appointment subject to them, and that his position among his professional brethren should be such as to disarm all sentiments of rivalry or jealousy among those with whom his official duties would bring him in contact. what should be his position and character will, however, be better estimated after the objects of his appointment are known. the extent of the district assigned to this official would necessarily vary according to the density of population; so that some counties would constitute a single district, and others be divided into several. in the instance of a county so small as rutland, the services of a separate district medical officer would hardly be required, and the county might be advantageously connected with an adjoining one. one principal purpose of his office would be to receive notice of every case of insanity, of idiocy, or of 'nervousness' (as provided for by lord shaftesbury's proposal), and to register it; the notice to be sent to him by the medical attendant upon the patient. upon receiving such notice, he should forthwith, except under certain contingences hereafter indicated, visit the case, and determine whether it should be rightly placed under certificates as one of lunacy, or as one of 'nervous' disorder, amenable to treatment without the seclusion of an asylum; and should transmit the result of his examination and the report of the case to the lunacy board. it might supply an additional protection to the lunatic, and be satisfactory otherwise, if the signature of this officer were required to the original certificates (see p. ) before their transmission to the central office in london. the return made by the district medical officer to the commissioners in lunacy would be of much service to them in determining their future course with reference to the visitation of the patient (in carrying out lord shaftesbury's proposal, p. ), supposing him to be detained at home, or in lodgings with strangers, instead of being transferred to an asylum or licensed house. so again, if the patient were removed to an asylum, he would furnish a report of his history and condition to the physician or proprietor, and thereby render a valuable service, particularly in the case of paupers, of whom next to nothing can frequently be learnt from the relieving officers who superintend their removal to the county asylum. the want of a medical report of cases on admission is, in fact, much felt and deplored by medical superintendents; and, since it is proposed that the district officer should visit the patient at his own home, or, in exceptional cases, elsewhere, and inquire into his mental and bodily state, and into the history of his disorder, before his removal to the asylum, and as soon as possible after the onset of the attack, he would be well-qualified to render a full account of his case. we have spoken of a notice of idiots within his district being sent to the district inspector, and of his duty to register them. this matter we regard as certainly calling for attention, for, as remarked in a previous page (p. ), idiots need be submitted to appropriate educational and medical means at an early age to derive the full benefits of those measures; and among the poor, they certainly should not be left uncared for and unnurtured in the indifferent and needy homes of their friends, until, probably, their condition is almost past amelioration. again, with reference to the transmission of pauper lunatics to county asylums, we are disposed to recommend that the order for it be signed by the district medical officer, without recourse to a justice, in those cases where he can visit them, and in comparison of which indeed others ought to be exceptional. where, for instance, by reason of the remoteness of the patient's home, or of the workhouse or other building wherein he is temporarily detained, the district medical officer's visit could not be specially made except at great cost, the removal of the patient to the asylum might be carried out under the order of a magistrate, and the examination made by the district officer, as soon after his reception as possible; or better, at his own residence, which ought to be in a town not far from the county asylum. we advocate the delegation of the authority to the district officer to make an order in lieu of a justice, on the production of the legal medical certificate required, because we consider him much better qualified to administer that portion of the lunacy law, particularly as that law at present stands, which puts it in the power of a justice to impede the transmission of a lunatic for treatment, if, in his opinion, the patient's malady do not require asylum care: and it is a fact, that the clause permitting a justice this influence over a patient's future condition is often exercised; at times, contrary to the decided advice of medical men, and to the detriment of the poor patient. lord shaftesbury refers to such an occurrence in his evidence (_op. cit._, query ). having in view private patients especially, his lordship remarks that nothing could be worse than to take them before a magistrate: "there would be a degree of publicity about it that would be most painful ..., and to have the matter determined by him whether the patient should or should not be put under medical treatment. in ninety-nine cases out of one hundred, the magistrate knows little or nothing about the matter. a case occurred the other day of a poor man who was taken before a magistrate, and he refused to certify, because the man was not in an infuriated state. 'a quiet person like him,' he said, 'ought not to be put into an asylum; take him back.' he was in a low, desponding state, and if he had been sent to a curative asylum, he might have been cured and restored to society." mr. gaskell also adds his evidence to that of the noble chairman of the board, in reply to query (_op. cit._ p. ) put by sir george grey:--"is the magistrate to be quite satisfied on the evidence that the pauper is a proper person to be taken charge of in the county asylum?" mr. gaskell replies, "yes, as i said, on the medical gentleman giving a certificate. then it is his duty to make an order, and if he is not satisfied by his own examination, or the medical evidence is not sufficient to justify the order, he declines. i am sorry to say that they frequently do." it is also to be remembered that the existing law allows the justice's order to be dispensed with, if it cannot be readily obtained, or if the patient cannot be conveniently taken before him, and admits as a substitute an order signed by an officiating clergyman and an overseer or a relieving officer, upon the production of a medical certificate. moreover, by the interpretation clause, the chaplain of a workhouse is to be deemed an officiating clergyman within the meaning of the act. now, these conditions seem to us to frustrate the undoubted intent of the law in requiring a magistrate's order, viz. to guard against the unnecessary detention of an alleged lunatic; for they place the liberty of the pauper entirely in the hands of parish officers and paid servants, who will naturally act in concert; and it is conceivable that workhouse authorities might be anxious to get rid of a refractory pauper, and could together with the relieving officer influence in a certain degree the opinions and sentiments of the salaried chaplain and medical officer, in order to sanction his removal to the county asylum. we have, indeed, in previous pages (p. , _et seq._), shown that unfit and occasionally non-lunatic patients are sent to asylums; but, even did such an event never happen, we should still hold that the protection to the alleged lunatic intended by the requirement of an order signed by the officials designated, is very little worth, and would be advantageously replaced by the order of a district medical officer appointed and authorized by the scheme we propose. it is also worthy of note, that patients sent to asylums under the order of the chaplain and relieving officer feel themselves sometimes much aggrieved that no magistrate or other independent authority has had a voice in the matter. they regard the relieving officer or the overseer, as the case may be, to be directly interested in their committal to the asylum, and only look upon the chaplain of the union as a paid officer, almost bound to append his signature to any document matured at the board of guardians, when called upon to do so. moreover, they can recognise in him, in his professional capacity as a clergyman, no especial qualifications for deciding on the question whether they are proper persons to be confined on the ground of their insanity. this remark, too, extends to every other clergyman called upon to act in the matter. nay, more, there is another more potent objection at times to a clergyman signing the order; viz. when the patient is of a different faith, or when perhaps animated by strong prejudices against the clergy of the english church, and when, consequently, it is possible for him to imagine himself the victim of religious persecution or of intolerance. even lord shaftesbury, who is so identified with the interests of religion and of its ministers, manifests no disposition to entrust to the clergy the interests of the insane. in reply to the query (no. , evid. com.), whether he would desire ministers of religion to pronounce on the fitness or unfitness of persons for confinement as of unsound mind, he replies, "i should have more distrust of the religious gentleman than i should have of the medical man; and i say that with the deepest respect for the ministers of religion. the difficulty of it would be incalculable, if you were to throw the duty on the parochial clergy in the neighbourhood, who are already overburdened." in truth, there is no more reason for assigning to the clergy the determination of the question of sanity or insanity of an alleged lunatic, than for entrusting it to any other respectable and educated class of society. we have seen that magistrates sometimes exercise their privilege of deciding the question in an arbitrary and injudicious manner, and it is permissible to suppose the clergy not to be always in the right in exercising the same function. indeed, we have at least one instance on record that they are not, in the supplement to the twelfth report of the commissioners in lunacy; viz. in the case of an epileptic woman, subject to paroxysms of dangerous violence and destructiveness,--such as are common to the epileptic insane in asylums, and reported by the master of the workhouse "as unsafe to be associated with the other inmates. for these offences she had been subjected to low diet, restraint, and seclusion, and on three occasions had been sent to prison. the medical officer of the workhouse considered her of unsound mind, not fit to be retained in the workhouse, and improperly treated by being sent to prison. in march , and february , he had given certificates to this effect, and steps were taken to remove her to the asylum. when taken on those occasions, however, before the vicar of the parish, he refused to sign the order, and she was consequently treated as refractory, and sent to prison." taking the foregoing remarks into consideration, the only circumstances under which we would call upon an officiating clergyman, not being the chaplain of the union, to make the order, would be where no magistrate resided in the neighbourhood, and where, from the remoteness of the locality, the district medical examiner could scarcely be expected to visit the individual case,--an event that would be of rare occurrence in this country. there are indeed cases, such as of acute mania, where the justification of the confinement of a lunatic, by the order of a magistrate or clergyman, is a mere formality, and might be altogether dispensed with, and all legal protection guaranteed by the medical certificate, and an order signed by a parish officer to authorize the asylum authorities to receive the patient at the charge of the parish sending him. but if this were objected to, then assuredly the examination of the lunatic immediately upon or just before his admission into the asylum by the district medical officer, would supply every desideratum in the interests of the patient, and such an examination would, according to our scheme, be always made at this stage of the patient's history. lastly, let it be remembered that a magistrate's order is not required for the admission of a private patient into an asylum or licensed house. a relative or friend may sign the order and statement, and the alleged lunatic is thought to be sufficiently protected by the two medical certificates. now, were a magistrate's or a clergyman's order any real security against the commission of a wrong to an individual, it would be much more necessary in the instance of private patients possessing property, and whose confinement might serve the interests of others, than in the case of paupers, for whose confinement in an asylum no inducement, but rather the contrary feeling, exists. in fact, the confirmation given to the propriety of placing a pauper lunatic in an asylum by the district medical officer, as proposed, might be considered supererogatory, considering that a certificate is required from the superintendent of the asylum shortly after admission, had it no other purpose in view. according to the proposition advanced by us, an experienced opinion by an independent authority would be obtained in lieu of one formed by an inexperienced magistrate (who would generally prefer escaping an interview with a madman, mostly act upon the medical opinion set forth, or if not, be very likely to make a blunder in the case), or of one certified by two inexperienced, paid, and therefore not sufficiently independent, workhouse functionaries. the clause proposed by the commissioners (supp. rep. , p. ), "that the medical officer of the workhouse shall specify, in the list of lunatic inmates kept by him, the forms of mental disorder, and indicate the patients whom he may deem curable, or otherwise likely to benefit by, or be in other respects proper for, removal to an asylum," is virtually unobjectionable; but, with due submission, we would advocate that, whether with or without this list and those expressions of opinion, the district medical officer's report should be considered the more important document whereon to act. the evidence given before the late committee of the house of commons ( ) shows that we must not expect much book-keeping or reporting from the parochial medical officers, and that many misconceptions and erroneous views prevail, and will damage results collected from them. the union medical officer will necessarily have his own opinions respecting the nature and prospects of the lunatics under his observation, and no great objection can be taken to his recording them, if thought worth while: yet they would be sure to be given, even without any legal requisition; and might often help, when privately expressed, the district examiner in his inquiries; and it would, besides, be better to avoid the chances of collision between the written opinions of two officers who should work together harmoniously. also, in the instance of private patients to be placed in an asylum, licensed house, or elsewhere with strangers, we look upon the visitation and examination of such a medical officer as we suggest as a valuable additional protection and security to them. he would constitute an authority in no way interested in the detention, and, by the nature of his office, bring to bear upon any doubtful cases an unusual amount of special knowledge and experience. we cannot help thinking that such a functionary would be much more efficient and useful than a magistrate (to whom some have proposed an appeal), as a referee to determine on the expediency of placing a person under certificate as of unsound mind. another class of duties to devolve on a district medical officer comprises those required to watch over the interests and welfare of pauper lunatics sent to, or resident in, workhouses. at p. , we have advanced the proposition, that, in future, no alleged lunatics should be removed to a workhouse, except as a temporary expedient under particular conditions, such as of long distance from the asylum or unmanageable violence at home; and that in all cases a certificate to authorize any length of detention in a workhouse should emanate from the district medical officer. the object of this proposal is to prevent the introduction of new, and particularly of acute cases of insanity, into workhouses; for, as we have shown in the section 'on the detention of patients in workhouses' (p. , _et seq._), the tendency is, when they are once received, to keep them there. according to our scheme, the district officer would receive notice of all fresh cases from the medical practitioner in attendance upon them, and, in general, visit them at their homes before removal to the workhouse or elsewhere. with respect to the actual inmates of the workhouse, it would be equally his duty to ascertain their mental and bodily state, to suggest measures to ameliorate their condition, and to report on those whom he might consider fit for removal either to the county asylum or to lodgings out of the union-house. he would make his report both to the committee of visitors of the workhouse, hereafter spoken of, and to the lunacy commissioners. it should devolve primarily upon the committee to act upon the reports, or, on their omission so to do, the commissioners in lunacy, either with or without a special examination made by one or more of their number, should be empowered to enforce those changes which might in their opinion be absolutely necessary. again, by suggestion (p. ), we provide that no person shall be detained as a lunatic or idiot, or as a person of unsound or weak mind, except under an order and a medical certificate to the existence of mental derangement, just such as is needed to legalize confinement in an asylum. the order would best come from the district medical examiner, whilst the certificate would, as usual, be signed by the union medical officer. now, by one of the propositions contained in the supplementary report of the commissioners in lunacy ( , p. ), it is sought to render a similar protection by another expedient; viz. that the alleged lunatic "shall be taken before a justice or officiating clergyman, and adjudged by him as not proper to be sent to an asylum." by the next paragraph, it is further proposed that, "in any case wherein an order for a lunatic's reception into an asylum shall be made by a justice or officiating clergyman, it shall be competent for him, if, for special reasons, to be set forth in his order, he shall deem it expedient, to direct that such lunatic be taken, _pro tempore_, to the workhouse, and there detained for such limited period, not exceeding two clear days, as may be necessary, pending arrangements for his removal to the asylum." now, with all becoming deference to the position and experience of the commissioners, we must confess to a predilection for our own plan, which, indeed, was drawn out before the appearance of the supplemental report. this preference we entertain for the reasons shown when speaking of the relative qualifications of magistrates and clergymen to make the order for admission into asylums; viz. that on the one hand there are no à priori grounds for supposing their discrimination of insanity, and of its wants and requisite treatment, to be better than that of other people; that some direct objections attach to clergymen, and that experience proves that neither justices nor clergymen have hitherto so performed the duty as to afford any inducement to increase its extent; and, on the other, that in the district medical officer we have an independent and skilled person to accomplish the work. nevertheless the suggestion offered by the commissioners is a great improvement upon the practice in vogue, which leaves the determination of the place and means of treatment, and of the capability of a patient to be discharged or removed, to the parish authorities. on this matter we have commented in previous pages, and illustrated at large in the history of the condition of the insane in workhouses, or boarded with their friends outside. by suggestion (p. ), we propose that no lunatic or other person of unsound mind in a workhouse should be allowed to be discharged or removed without the sanction of the district medical officer. this proposition we regard as of great importance; for we have seen (p. , _et seq._) with what recklessness, contempt of common sense, and cruelty, poor lunatics are removed from workhouses to asylums under the operation of existing arrangements. again, some directing, experienced and independent authority is needed (p. ) to overrule the removal of imbecile and other inmates to the houses of their relatives or of strangers; to indicate the cases to be sent, and to examine the accommodation, and ascertain the character and fitness of the persons offering to receive them. these functions also we would delegate to the district medical officer. once more, imbecile, partially idiotic, and occasionally patients more rightly called lunatic, are sent away, or allowed to discharge themselves from, the workhouse, with the sanction of the authorities of the house and of the guardians. the terrible evils of this proceeding are alluded to at p. , and more fully entered into in the commissioners' supplementary report ( ), and in the evidence before the committee on lunatics ( , queries - ). the district medical officer would here again come into requisition, and, under a distinct enactment of the law, resist the discharge, unless satisfied that the relatives of the disordered or imbecile paupers, particularly when females, could afford proper supervision and accommodation, and exercise due control over them. the sixth suggestion we have made (p. ) contemplates the visitation of lunatics in workhouses, not only by the lunacy commissioners, as heretofore, but also by a committee of magistrates, and the district medical officer. the powers committed to the lunacy commissioners by existing acts to inspect workhouses are very inadequate and unsatisfactory; for, as the commissioners observe, they can make recommendations, but have no authority to enforce attention to them, and the only course open to them is, to get their views represented through the medium of the poor law board; and, although this board co-operates most readily in their recommendations, yet it has no positive power to enforce them. the result is, the commissioners find that the circuitous and troublesome proceeding to which they are restricted renders their endeavours in behalf of workhouse lunatics almost nugatory. to rectify this objectionable state of things, the first principle to be recognised is, that the lunacy board shall be charged with the custody of all lunatics, whose interests it shall watch over and have the necessary power to promote, however and wherever they may be found. it should not have to exercise its authority, to enforce its orders and regulations, through the medium or by the agency of any other board. no competing authority should exist. all lunatics should be reported to the commissioners; all should be subject to their visitation, or to that of any assistants appointed under them; and the power of release should be lodged in their hands in respect of all classes of patients when they see reason to exercise it. in the instance of pauper lunatics in workhouses, they should be able to interpose in their behalf, to require every necessary precaution to be taken for their security, and due accommodation and treatment provided. the district medical officer would be their local representative; would make frequent inspections, and report to them and act under their direction. he would indeed be responsible to them in all duties connected with the interests of the insane. we have (p. ) proposed a committee of visitors of workhouses, for each county or for each division of the county, selected from the magistrates and from the respectable classes of ratepayers, not being guardians or overseers, although chosen with a view to represent parochial interests. this committee should visit, at least once a quarter, every workhouse containing a person of unsound mind or an idiot, in the district under its jurisdiction; and it would be desirable that the district medical inspector should visit in company with the committee, besides making other visits by himself at other times. we are happy to find that this suggestion tallies in general with one made by the commissioners in lunacy in their recent supplementary report, as well as with the views of dr. bucknill. but we conceive it rather a defect in the commissioners' scheme that they propose that "the visiting commissioner and the poor law inspector be empowered to order and direct the relieving officer to take any insane inmate before a justice, under the provision of the th section of the lunatic asylums act, ." for, according to the principle enunciated in the last page, the lunacy commissioners, as the special guardians of the insane, should alone be concerned in the direct administration of the laws of lunacy, and on this ground we object to the power proposed to be conferred on the poor law inspectors; and we take a further objection to their being called upon to form an opinion respecting the lunatics who require asylum treatment, and those who do not. there is truly no impediment, in the abstract, to their forming an opinion; yet, on the other hand, we would not have them to act upon it, but desire them to report the circumstances falling under their notice to the lunacy commissioners, who would thereupon examine into them, and decide on the steps to be taken. by the plan, however, which we have drawn out, and by the functions proposed to be entrusted to the district medical officer, the whole clause last discussed would be rendered superfluous. the seventh suggestion (p. ) submitted to consideration is, that every workhouse containing lunatics should, under certain necessary regulations, be licensed as a place of detention for them, by the committees of visitors of workhouses when situated in the provinces, and by the lunacy commissioners when in the metropolitan district, and that the licence should be revoked by the committees, after reference to the lunacy board, in the case of workhouses licensed by them, and by the commissioners solely in the instance of any workhouse whatever. this plan confers the requisite power on the commissioners to control the accommodation and management of workhouse wards for lunatics, and resembles the one pursued at present with regard to asylums. it would likewise permit them to order the closure of lunatic wards, and the removal of all lunatics from a workhouse, when they were persuaded that proper asylum or other accommodation was available for the insane inmates. whatever course they adopted, or whatever decision they arrived at on such matters, they would be chiefly guided by the results of the inspection and the reports thereon made by the district medical officer, and further established by their own visitation. the present number of commissioners is far too small for them to visit each workhouse even once a year; and, if our views respecting the necessity of a complete examination of every one of such institutions, at least four times a year, be correct, it would still be impossible to get this work done by them, even though their number was trebled; therefore, as just said, the inspection made by the district medical officer would afford the chief materials for their guidance in dealing with workhouse lunatics, and save them an immense amount of labour. our eighth suggestion (p. ) is to the effect that all lunatics in workhouses should be reported to the lunacy commissioners, and that this should be done by the district medical officer (p. ). the number, age, sex, form and duration of malady, previous condition in life and occupation, and all particulars touching the mental and bodily condition of the patients, would be thus duly registered. the advantages of such a system of reporting are obvious, and, as this branch of the district officer's work has partially come under notice before, it need not be enlarged upon here. the law provides for the occasional visitation of pauper lunatics in asylums chargeable to parishes, by a certain number of the officers, and among them the medical officer of the parish to which, as paupers, they are chargeable; and something, by way of remuneration for their trouble, is allowed out of the funds of the union or parish. this arrangement keeps up a connexion between a parish and the lunatics chargeable to it in the county asylum, which in various respects is desirable, and probably satisfactory to the ratepayers. but the lunatic inmates of an asylum chargeable to the county do not receive the benefit of any such wise provision: when once in the asylum, they find none interested in their condition save the staff of the asylum, its visitors, and the commissioners. the last-named, in their annual visit, can have no time to consider them apart,--not even to discover and distinguish them from the rest. very many of them are foreigners, and their condition is consequently more deserving commiseration, as being, most likely, without friends, to interest themselves in their behalf. if the inquiry were made of the superintendents of county asylums, we believe it would be found that the omission of the law in providing for the more immediate watching of these poor lunatics is attended with disadvantages and injuries to them. to supply this want, we are disposed to recommend the district medical inspector as their special visitor; for he would be identified, on the one hand, with the county in which his duties lie, and, on the other, with the lunacy board, in such a manner as to be able to lay before it, in the readiest and best manner, any circumstances respecting these county pauper lunatics which it might seem desirable to report, and, when they were foreigners, to bring about a communication with the foreign office, and secure their removal to their own country. the visitation of these lunatics would rightly entitle the district officer to remuneration, which might be the same as that now paid per head for the visitation of out-door pauper lunatics, viz. half-a-crown per quarter. this amount would be payable by the county to which the patients were chargeable, and would add to the fund applicable for the general purposes of the lunacy board. the supplementary report of the lunacy commissioners ( , p. - ) contains some observations relative to the decision, in the instance of workhouse inmates, of the question who among them are to be reckoned as "lunatics, insane persons, and idiots" on the parish books? it is at present a task left to the guardians, the master, or to the parish medical officer; but the commissioners rightly recommend that it should be entrusted to the last-named officer. however, we should prefer to see the duty delegated to the district medical inspector, as better qualified, in general, by experience, and, what would be of more importance, as being independent of parochial functionaries: for the duty is a delicate and responsible one; and, the disposition of guardians being economical where money is to be expended on the poor, they always desire to escape the heavier charge entailed by lunatics, and, where they can manage it, are pleased to witness the discharge of imbecile paupers, and of others more correctly called insane, whom they may choose for the time to consider as sane enough to be at large. the difficulties besetting this question of determining what paupers are to be considered insane, and what not, is remarked upon by the scotch lunacy commissioners in their recently-published first report ( ), and was referred to in the english commissioners' report for (p. & p. ). the enormous evils attending the present loose mode of deciding the question are sketched in the supplementary report quoted, and in previous pages of this book. we now come to the duties of the district medical officer in reference to the pauper insane not in workhouses or asylums, but boarded with relatives or strangers: as, however, we have, treated of them at some length in the section on the condition of those lunatics (p. , _et seq._), we will refer the reader back to that portion of the book. suffice it here to say, that the district medical officer is very much needed as an independent and competent functionary to supervise and regulate the state and circumstances of this class of poor patients. he should visit every poor person wholly or partially chargeable, or proposed to be made chargeable, to the parish, as being of unsound mind (p. ), and make a quarterly return to the parochial authorities and to the lunacy board (p. ). he should also take in hand the selection of the residence and the examination into the circumstances surrounding the patient (p. ). if the scheme of boarding the pauper insane in the vicinity of the county asylums, in cottage-homes (see p. , and p. ), were carried out, the extent of the duties of the district inspector would be much curtailed, inasmuch as a majority of such lunatics would fall within the sphere of the asylum superintendents in all matters of supervision. the subsequent publication of the "evidence before the select committee on lunatics," , enables us to refer the reader to other illustrations of much weight, to show the pressing demand for an efficient inspection of single cases, and for securing satisfactory returns of their condition, particularly when paupers. the necessity for inspection is proved by lord shaftesbury's exposure of the wretched state of single patients (at p. , _et seq._), and the want of returns by the evidence of mr. gaskell (p. , _et seq._). the passages bearing on these points are too long for quotation at this part of our work, and are very accessible (blue book above-mentioned) to every reader desirous of seeing other evidence than that adduced in preceding pages. the appointment of the district medical officer would have this further benefit with reference to out-door pauper lunatics, that it would set aside discussions respecting the persons who should receive relief as such; a circumstance, upon which turns, as noticed before (p. ), the question of the quarterly payment of two shillings and sixpence for each lunatic visited. the district officer would possess an entire independence of parish officials, and could not be suspected of any interested motive in making his decision. in undertaking the inspection of this class of pauper lunatics, he would certainly displace the parish medical officers, and the small fee payable to these last would fall into the treasury of the lunacy board; yet the loss to an individual union medical officer would be scarcely appreciable; for the number of lunatics boarded out in any one parish or portion of a parish coming under his care, would, in every case, be very small; whilst, on the other hand, the sum in the aggregate paid into the hands of the commissioners, on account of all such patients in the kingdom, would,--supposing, for example, our estimate of to be tolerably correct,--form a not inconsiderable sum; taking the number mentioned, it would amount to £ per annum,--a useful contribution to the fund for meeting the expenses of district medical inspectors, and sufficient to pay the salary of eight such officers. but the fee might be doubled without being burdensome to any parish. although the commissioners in lunacy might occasionally visit private lunatics in their own homes, and more especially those boarded with strangers, yet it would be impossible for them, even if their number were doubled, to exercise that degree of supervision which is called for. this would particularly be the case, were the system of registration, or of reporting all persons under restraint on account of mental disorder or mental weakness, carried out; and the only plan that appears for securing the desired inspection of their condition, and of the circumstances and propriety of their detention, is that of imposing the duty upon the district medical officer. we have already suggested that this officer should see all such cases when first registered; by so doing, he would be brought into contact with the patients and their families, and would, as a county physician, also constitute a less objectionable inspector than even the commissioners themselves in their character as strangers and as members of a public board. the medical inspector's visit should be made at least four times a year, and a moderate fee be paid on account of it to the general fund of the lunacy board. if it were only half-a-guinea per quarter for each patient, it would produce a considerable sum available for the purposes of the commission. there is yet one other duty we would delegate to the district medical officer, viz. that of visiting the private asylums not in the metropolitan district, in company with the committee of visiting justices, who, according to the requirement of the present law, must join with themselves a physician, in making their statutory visits. we conceive that the assistance of such a physician as we would wish appointed in the capacity of district medical officer, would render the magisterial visits more satisfactory, and establish a desirable connexion between the visiting justices and the lunacy board. we do hear, at times, of a species of rivalry or of opposition between the visitors of private asylums and the commissioners, to the detriment of proprietors. if such an evil prevails, one means of checking it would, we believe, be found in the position and authority of the district medical officer when called on, as suggested, to act as the visiting physician with the magistracy as well as the local representative of the commissioners in lunacy. on reviewing the duties to be undertaken by a district medical officer, the propriety of the remarks with which we began this chapter will appear:--viz. that he should occupy as independent a position as possible; that, as a medical man, he should be free from all sentiments of rivalry, and therefore not be engaged in practice,--or at least not in general practice. it would be much better that he should not practise at all on his own account, but should be so remunerated that he might devote all his time and attention to the duties of his office. he should receive a fixed annual stipend, and not be dependent on fees. by this course, he could not be accused of having any interest in the seclusion of the insane under his supervision. so, again, in order to confer on him the necessary independence in the discharge of his duties, his appointment should be made by the lunacy board with the concurrence of the home secretary or of the lord chancellor,--not by the magistrates, nor by any parochial authorities. it should also be a permanent appointment, held during good behaviour, and revocable by the commissioners only, after an investigation of any charges of misconduct, and upon conviction. the acquisition of the services of suitable and competent medical men might be started as a difficulty in carrying out our scheme; yet it is really of so little moment that it scarcely needs discussion. the development of the country perpetually opens up new offices and creates a demand for fitting men to fill them; but, by the law of political economy, that where there is a demand there will be a supply, individuals rapidly come forward who are adapted, or soon become adapted, to the new class of duties. and so it would be on instituting the post of district medical officer in each county or division of a county; for it is to be remembered that the rapid extension of asylums has raised up a class of medical practitioners specially conversant with the insane; so that, when a vacancy occurs in any one such institution, qualified candidates spring up by the dozen, and the difficulty is, not to find a suitable man, but to decide which of many very suitable applicants is the most so. moreover, the anxiety, the mental wear and tear, and the greater or less seclusion of an asylum superintendent's life, are such, that his retirement after some fifteen or twenty years' service is most desirable, although his age itself may not be so far advanced but that many years of active usefulness are before him: to many such a retired superintendent, the post of district medical inspector, even at a very moderate salary, would be acceptable, whilst its duties would be most competently performed by him. our business has been to point out wherein a necessity appears for the appointment of a district medical officer in the interests of the insane, and to indicate, in general, the duties which would devolve upon him in regard to them; but we may be allowed to hint at another set of duties which, we are of opinion, might most advantageously be allotted to him, and afford an additional argument in favour of creating him a public servant, so paid as legitimately to demand his withdrawal from private medical practice. the duties we mean are in connexion with medico-legal investigations in cases of sudden and of violent death, of criminal injuries, and of alleged lunacy; duties, by the way, which are exercised by the district or provincial physicians in continental states. we should, by such an arrangement, obtain the services of a medical man expert in all those inquiries and trials which come before the coroner's court and the higher courts of law; we should obtain a skilled and experienced physician, occupying a position perfectly independent of either side, in any trial or investigation where a medical opinion or the result of medical observation was called for. medical witnesses, in a legal inquiry, are not unfrequently blamed, and still oftener criticized, and perhaps unfairly so, by their professional brethren, respecting the manner in which they may have made an autopsy, or conducted the examination in other ways, touching the cause of death, or an act of criminal violence; and they are always exposed to the rivalry of their neighbours; and wishes that some skilled individual had been sent for in their stead to conduct the investigation, find their way into the public papers. again, it should be remembered that a medico-legal inquiry is an exceptional event in the practice of most medical men: they bring to it no particular experience, and generally they would much prefer to escape such investigations altogether, as they seriously interfere with their ordinary avocations, and obtain for them no adequate remuneration. yet withal, the plan proposed would far from entirely prevent their being engaged in the subjects comprehended in the term 'medical jurisprudence,' or deprive them of fees. as the actual practitioners of the country and always near at hand, they would be the first sent for in any case, the history or termination of which might involve a judicial inquiry; whilst, on the other hand, the district medical officer would have to be summoned and would act in the case only as the representative of the public interests and of the public security. lastly, the district medical officer in the discharge of his duties would not render the services of special medical jurists unnecessary; the chemist, for instance, would be as important in his special calling as he is at the present time, wherever death by poisoning was suspected. it would be beside our purpose in this treatise to enlarge upon the medico-legal duties which would devolve on the district medical officer in the position in which we would place him, or on the benefits that would accrue from his labour to public justice, and to the interests of the state. reflection upon the plan will, we believe, convince any reader, who knows how matters now are, that it would lead to an immense improvement. it appears to be a feature of our countrymen, both in public and private affairs, that they will avoid, as long as possible, recourse to a system or to a plan of organization; they seem to prefer letting matters go on as long as they will in their own way, and only awake to a consciousness that something is wanting when errors and grievances have reached their culminating point, and a continuation in the old course becomes practically impossible. then, when the evil has attained gigantic dimensions, when much injury has been inflicted, and an enormous waste in time and money has occurred, committees of inquiry and special commissioners are hastily appointed, a sort of revelry indulged in the revelations of past misadventures and past folly and neglect; and some scheme is seen to be imperatively necessary, the costliness of which must be endured; and, perhaps, the conviction all at once arises, that the cost of the needed plan of organization, which can be estimated, is in fact much less than what has been submitted to, without attempting an estimate, for a long time before. we lag behind most countries on the continent in our state medical organization; our individual instruments are better, yet they are not co-ordinated in any general system. we trust that this has been in some measure shown in the preceding pages, and that it has been made out, that if the insane, and more particularly those in private houses and those who are paupers, are to be efficiently looked after, and their protection from injuries and their proper care and treatment secured, some such scheme as we have indicated is now called for. surely evils have sufficiently culminated, when at least one-half of the insane inhabitants of this country have either no direct legal protection, are unknown to the publicly-appointed authorities under whose care they ought to be, or are so situated that their protection and their interests are most inadequately provided for. did not a necessity for an improved and extended organization on behalf of the interests of the insane exist, the plea of its cost would probably defeat an attempt to establish it, notwithstanding the plainest proofs of its contingent advantages, and of the fact that sooner or later its adoption would be imperative. but, looking at the question merely with reference to the cost entailed, we believe, that this would not be considerable, and that, as a new burden, it would indeed be very small: for, as we have pointed out, there are certain moneys now paid under acts of parliament, which would, by the organization advocated, become available towards defraying its expenses. for instance, the fee of ten shillings per annum, payable for the quarterly visits to every pauper lunatic not in asylums, would revert to the district officers; as likewise would the fee payable to the physician called upon by the visitors to the licensed houses in every county. we have also proposed a fee to be paid for a quarterly visit to all county patients in lunatic asylums, and to all private patients provided for singly, and are of opinion that a payment should be made for each lunatic or 'nervous' patient, when registered as such, whether pauper or not; the sum, in the case of a pauper, however, of a smaller amount than that for a private lunatic. considering the character and extent of the supervision and attention proposed to be rendered, and the numerous advantages, direct and indirect, which would necessarily accrue from the establishment of the organization suggested, there are certainly good grounds for enforcing payment for services rendered, so as to make the whole scheme nearly, or quite, self-supporting. to repeat one observation before concluding this chapter,--it should be so ordered, that all moneys levied on account of the visits of district medical officers, and of registration, should be paid to the credit of the lunacy board, through the medium of which those officers would receive their salaries. chap. x.--on the lunacy commission. we put forward our remarks upon this subject with all becoming deference; yet it was impossible to take a review of the state of lunacy and of the legal provision for the insane without referring to it. indeed, in previous pages several observations have fallen respecting the duties and position of the commission of lunacy, and the operation and powers of this board have also formed the topic of many remarks and discussions in other books, as well as in journals, and elsewhere. there appears to be in the english character such an aversion to centralization as to constitute a real impediment to systematic government. various questions in social science are allowed, as it were, to work out their own solution, and are not aided and guided towards a correct one by an attempt at system or organization. confusion, errors, and miseries must prevail for a time, until by general consent an endeavour to allay them is agreed upon, and a long-procrastinated scheme of direction and control is submitted to, and slowly recognized as a long-deferred good. such is the history of the care and treatment of the insane. after ages of neglect, evils had so accumulated and so loudly cried for redress, that some plan of conveying relief became imperative; and it is only within our own era, that the first systematic attempt at legislation for the insane was inaugurated. from time to time experience has shown the existence of defects, and almost every parliament has been called upon to amend or to repeal old measures, and to enact new ones, to improve and extend the legal organization for the care and treatment of lunatics and of their property. one most important part of this organization was the establishment of the lunacy commission, which has given cohesion and efficacy to the whole. to the energy and activity of this board are mainly due the immense improvements in the treatment of the insane which characterize the present time, and contrast so forcibly with the state of things that prevailed before this central authority was called into power. the official visitation by its members of all the asylums of the country has imparted a beneficial impulse to every superintendent; the commissioners have gone from place to place, uprooting local prejudices, overturning false impressions, and transplanting the results of their wide experience and observation on the construction and organization of asylums, and on the treatment of the insane, by means of their written and unwritten recommendations, and by their official reports, which form the depositories of each year's experience. an attempt to show the manifold advantages of this central board would be here out of place; but we may, for example's sake, adduce the recent investigation into the condition of lunatics in workhouses, as one of many excellent illustrations of the benefits derived from an independent central authority. but, whilst illustrating how much and how long the supervision of independent visitors has been, and, in fact, still is needed over lunatics in those receptacles, it also proves that the existing staff is inadequate to fulfil the task. we have, indeed, suggested the appointment of a class of district medical officers who would relieve the commissioners from the greatest part of the labour of inspecting workhouse lunatic wards, but we would not thereby entirely absolve them from this duty. an annual visit from one commissioner to each union-house containing more than a given number of lunatics would not be too much; and, to make this visit effectual, the commissioner should be armed with such plenary powers as to make his recommendations all but equivalent to commands, though subject to appeal. at present the lunacy commissioners are practically powerless; the law orders their visits to be made, and sanctions their recommendations, but gives neither to them nor to the officers of the poor law board the power to insist on their advice being attended to if no reasonable grounds to the contrary can be shown. in this matter, therefore, a reform of the law is called for. the court of appeal from the views of the commissioners might be formed of a certain number of the members of the poor law board and of the lunacy commission, combined for the purpose when occasion required. the proposition has been made (p. ) to institute a committee of visitors of workhouses, chiefly selected from the county magistracy; and it is one that will no doubt be generally approved. but to the further proposition, that the supervision of workhouse lunatics should be entirely entrusted to these committees, and that the commissioners in lunacy should not be at all concerned in it, we do not agree; for, in the first place, we wish to see the lunacy commissioners directly interested in every lunatic in the kingdom, and acquainted with each one by their own inspection or by that of special officers acting immediately under their authority; and, in the second place, we desire to retain the visitation of the members of the commission in the capacity of independent and experienced inspectors. the advantages of an independent body of visitors, as stated in the commissioners' 'further report,' (p. ), chiefly with reference to asylums (see p. ), have much the same force when applied to the visitors of workhouses,--that is, if the insane in these latter receptacles are to be placed on an equality, as far as regards public protection and supervision, with their more fortunate brethren in affliction detained in asylums. but, besides the arguments based on the advantages accruing from an independent and experienced body of visitors, there is yet another to be gathered from the past history of workhouses and their official managers: for among the members of boards of guardians, to whom the interests of the poor in workhouses are confided, are to be found, in a large number of parishes, magistrates holding the position of ordinary or of honorary guardians; and, notwithstanding this infusion of the magisterial element, we find that almost incredible catalogue of miseries revealed to us by the lunacy commissioners to be endured by the greater number of lunatics in workhouses. in fact, to assign the entire supervision of workhouse lunatic inmates to a committee of visiting justices is merely to transfer the task to another body of visitors, who have little further recommendations for the office than the boards of guardians as at present constituted. from these and other considerations, we advocate not only the visitation of lunatics in workhouses by the district medical officers proposed, but also, at longer intervals, by one or more of the commissioners or of their assistants; and, if this idea is to be realized, an increase of the commission will be necessary, at least until union-houses are evacuated of their insane inmates. the beneficial results flowing from the visitation of asylums by the lunacy commissioners is a matter of general assent; and the opinion is probably as widely shared, that this visitation should be rendered more frequent. a greater frequency of visits would allay many public suspicions and prejudices regarding private asylums, and would, we believe, be cheerfully acquiesced in by asylum proprietors, who usually desire to meet with the countenance and encouragement of the commissioners in those arrangements which they contrive for the benefit of their patients. the proceeding in question would, likewise, furnish the commissioners with opportunities for that more thorough and repeated examination of cases, particularly of those which are not unlikely to become the subject of judicial inquiries. the ability to do this might, indeed, often save painful and troublesome law processes; for, surely, the careful and repeated examinations of the commissioners, skilled in such inquiries, when terminating in the conclusion that the patient is of unsound mind, and rightly secluded, should be accounted a sufficient justification of the confinement, and save both the sufferer and his friends from a public investigation of the case. the decision of the lunacy commissioners, we are of opinion, should be held equivalent to that of a public court, and should not be set aside except upon appeal to a higher court, and on evidence being shown that there are good reasons for supposing the original decision to be in some measure faulty. is not, it may be asked, the verdict of a competent, unprejudiced body of gentlemen, skilled in investigating lunacy cases, of more value than that of a number of perhaps indifferently-instructed men, of no experience in such matters, under the influence of powerful appeals to their feelings by ingenious counsel, and confounded by the multiplicity and diversity of evidence of numerous witnesses, scared or ensnared by cross-examination in its enunciation? again, the more frequent visitation of the insane by the commissioners would be productive of the further benefit of obviating the imputation that patients are improperly detained after recovery; and it would also, in some cases, be salutary to the minds of patients, fretting under the impression of their unnecessary seclusion; for the inmates of asylums naturally look to the commissioners for release, anticipate their visits with hope, and regret the long interval of two, three, or more months, before they can obtain a chance of making their wants known, particularly since they are conscious how many affairs are to be transacted during the visit, and that only one or two of their number can expect to obtain special consideration. there is, moreover, a new set of duties the commissioners propose to charge themselves with, involved in the clause of the bill introduced in the last session of parliament (clause ), requiring information to be given them of the payment made for patients in asylums, in order to their being able to satisfy themselves that the accommodation provided is equivalent to the charges paid. this task will necessarily entail increased labour on the commission, and lead, not only to inquiries touching the provision made for the care and comfort of the patients within the asylum, but also to others concerning the means in the possession of their friends, and the fair proportion which ought to be alloted for their use. in short, we cannot help thinking that the duties proposed will frequently lead the commissioners to take the initiative in a course of inquiries respecting the property of lunatics available for their maintenance. according to present arrangements, although every asylum in the country is under the jurisdiction of the commissioners in lunacy, yet, beyond the metropolitan district, their jurisdiction is divided, and the county magistrates share in it. indeed, provincial asylums are placed especially under the jurisdiction of the magistrates, by whom the plans of licensed houses are approved, licences granted or revoked, and four visitations made in the course of each year; whilst the commissioners, although they can, by appeal to the chancellor, revoke licences in the provinces, are not concerned in granting them, and make only two visits yearly to each licensed house beyond the metropolitan district. this variety in the extent of the jurisdiction of the lunacy board in town and country, is, to our mind, anomalous, and without any practical advantage. if the magisterial authority is valuable in the regulation of asylums at one portion of the country, it must be equally so at another; the 'non-professional element' (evid. com., query ), if of importance in the country, must be equally so in the neighbourhood of the metropolis. we do not argue against the introduction of magisterial visitation of asylums, but against the anomaly of requiring it in the country and not in town, and against treating provincial asylums as not equally in need of the supervision of the central board with the metropolitan. we perceive a distinction made, but cannot recognize a difference. there is a single jurisdiction in the instance of one set of asylums, and a divided one in that of another; and yet the circumstances are alike in the two. the real explanation of this anomaly in the public supervision and control of asylums, is, we believe, to be found in the fact of the inadequacy of the lunacy commission to undertake the entire work. the superiority of the commissioners, as more efficient, experienced, and independent visitors, will be generally admitted; but they are too few in number to carry out the same inspection of all the private asylums in the country, as they do of those in the metropolitan district. the commissioners are free from local prejudices, unmixed in county politics, and constitute a permanent, unfluctuating board of inspection and reference; whereas county and borough magistrates owe their appointment usually to political considerations and influence: politics are a subject of bitter warfare among them in most counties; local and personal prejudices and dislikes are more prone to affect them as local men; and, withal, the committees of visiting justices are liable to perpetual change, and, out of the entire number elected on a committee, the actual work is undertaken only by a few, who therefore wield all the legal powers entrusted to the whole body. a passage from the 'further report' of the lunacy commissioners ( ) recently referred to (p. ) may be serviceably quoted in this place. speaking of the extracts selected by them for publication in the report, "to show that occasions are continually arising, where the intervention of authority is beneficial," the commissioners proceed to remark that "the defects adverted to in the extracts may sometimes appear to be not very important; but they are considerable in point of number, and, taken altogether, the aggregate amount of benefit derived by the patients from their amendment, and from the amendment of many other defects only verbally noticed by the commissioners, has been very great. it is most desirable that no defect, however small, which can interfere with the comfort of the patient, should at any time escape remark. a careful and frequent scrutiny has been found to contribute more than anything else to ensure cleanliness and comfort in lunatic establishments, and good treatment to the insane. these facts will tend to show how advantageous, and indeed how necessary, is the frequent visitation of all asylums. it is indispensable that powers of supervision should exist in every case; that they should be vested in persons totally unconnected with the establishment; and that the visitations should not be limited in point of number, and should be uncertain in point of time: for it is most important to the patients that every proprietor and superintendent should always be kept in expectation of a visit, and should thus be compelled to maintain his establishment and its inmates in such a state of cleanliness and comfort as to exempt him from the probability of censure. we are satisfied, from our experience, that, if the power of visitation were withdrawn, all or most of the abuses that the parliamentary investigations of , , and brought to light, would speedily revive, and that the condition of the lunatic would be again rendered as miserable as heretofore." we have in past pages referred to magisterial authority in relation with the pauper insane, as frequently exercised prejudicially, and with reference to asylum construction and organization, as sometimes placed in antagonism to acknowledged principles and universal practice, much to the injury of the afflicted inmates. its operation is not more satisfactory when extended to the duties of inspection. we have heard complaints made that magistrates sometimes act very arbitrarily in their capacity of visitors to asylums, and that it is not uncommon for them, instead of acting in concert with the commissioners in lunacy, to place themselves in opposition to their views. in fact, the annual reports of the commissioners testify to the not unfrequent want of harmony between the visiting magistrates and the commissioners in lunacy; and the very facts, that the latter have to make special yearly reports to the lord chancellor on the neglect or unfitness of certain private houses, and that they have sometimes to apply to him to revoke licences, demonstrate that the magisterial authorities are at times backward and negligent in their duties. indeed, the impression to be gathered from the annual reports of the commission is, that almost the only efficient supervision and control of provincial asylums are exercised by the lunacy commissioners. the publication of the evidence before the select committee ( ) adds fresh proofs that magistrates make but indifferent visitors of asylums, and but imperfectly protect the interests of the insane; and that an extension of the jurisdiction and of the inspection by the lunacy commissioners is much needed. we would refer for particulars to queries and answers numbered from to , and from to . we have commented in previous pages on the manner in which the visiting justices of public asylums perform their duties, and need not repeat the statements already made; yet we may here remark that the visitation of the wards of county asylums is often so very carelessly made, that it has little or no value, and that it is frequently difficult to get the quorum of two justices to make it, the majority objecting on personal and other grounds. from the foregoing considerations we would advocate the extension of the commissioners' jurisdiction, and its assimilation to that in force within the metropolitan district. to extend it merely to thirty miles around the metropolis, as some have proposed, would be only to increase the anomaly complained of. the lunatics, and those in whose charge they live, in every district in england, should be under one uniform jurisdiction, with the authority and protection of one set of public officers and one code of rules. if magisterial supervision have a real value, let it be superadded to a complete scheme of inspection and control exercised by the lunacy commissioners; and if it exist anywhere, let no district be exempt from it; for the existence of any such exemption furnishes a standing argument against the value attributed to its presence. for instance, it may be fairly asked,--are the metropolitan licensed houses any the worse for the absence of magisterial authority, or, otherwise, are the provincial any better for its presence? according to lord shaftesbury's evidence,--and his lordship is favourable to the authority of the justices being perpetuated,--the system of licensing provincial houses is sometimes loosely conducted; the house is only known to the licensing magistrates by the plan presented, and its internal arrangements must be virtually unknown, inasmuch as no inspection is made of the premises. this furnishes an argument for handing over the licensing power to the commissioners in lunacy, who exercise this portion of their duties with the greatest care and after the most minute examination. but, besides this, the position of a magistrate does not afford in itself any guarantee of capacity for estimating what the requirements of the insane ought to be, or of judging of the fitness of a house for their reception. the act of licensing should certainly be conducted upon one uniform system and set of regulations; and the revocation of licences should likewise be in the hands of one body. no division of opinion should arise between a public board and a committee of justices respecting the circumstances which should regulate the granting or the refusing, the continuation or the revocation of a licence. a divided, and therefore jarring jurisdiction, cannot be beneficial; and the arguments for the introduction of the magisterial element depend on the popular plea for the liberty of local government,--a liberty, which too often tends to the annihilation of all effectual administration. if our views are correct, and if the jurisdiction of the commissioners in lunacy ought to be increased, then, as a result, the number of commissioners must also be augmented. in the need of this increase, very many, indeed the large majority of persons acquainted with the legal provisions made for the care and treatment of lunatics, concur; and reasons for it will still further appear upon a review of the other functions assigned to the commissioners, and of those with which we would charge them. by existing arrangements there are two state authorities concerned with lunatics, one particularly charged with their persons, whether rich or poor,--the lunacy commission;--the other with their estates, and therefore, with those only who have more or less property,--the office of the masters in lunacy. here, then, is another instance of divided jurisdiction, although it is one wherein there are no cross-purposes, the distinction of powers and duties being accurately defined in most respects. perhaps the separation of the two authorities is too distinct and too wide, and a united jurisdiction might work better; but on this point we forbear to speak, not having the knowledge of the laws of property and of their administration necessary to guide us to a correct conclusion. yet we may thus far express an opinion, that the visitation of lunatics, whether found so by inquisition or not, should devolve on the members of the lunacy commission. we can perceive no reason for having distinct medical visitors to chancery lunatics; as it is, a large number of such lunatics is found in asylums and licensed houses, and comes therefore under the inspection of the commissioners. thus, according to the returns moved for by mr. tite ( ), it appears there are lunatics, in respect of whom a commission of lunacy is in force, and of these, are inmates of asylums; therefore one-half of the entire number of such lunatics is regularly inspected by the lunacy commissioners, and the visits of the "medical visitors of lunatics" are nothing else than formal; we would therefore suggest that two assistant commissioners should be added to the lunacy board, who should receive the salaries now payable to the chancery lunatics' medical visitors, be disallowed practice, and be entirely engaged as medical inspectors under the direction of the board; or that, in other words, the moneys derived from the lunacy masters' office should be paid over to the commission for its general purposes, upon its undertaking to provide for the efficient protection and visitation of all lunatics, so found on inquisition. the plan of bringing all lunatics and all so-called 'nervous' patients, whether placed out singly or detained in asylums of any sort under the cognizance and care of the commission, as enlarged upon in previous pages, would materially augment the labours of the central office; and, in our humble opinion, a greater division of labour than has hitherto marked the proceedings of the commission would greatly facilitate the work to be done. at present, the members of the commission perform a threefold function; viz. of inspectors, reporters, and judges. the task of inspecting asylums and their insane inmates, of ascertaining the treatment pursued and examining the hygienic measures provided, is peculiarly one falling within the province of medical men, and should be chiefly performed by medical commissioners. on the other hand, the business of the board, in its corporate capacity, is only indirectly and partially medical. lord shaftesbury, indeed, goes so far as to say (query , evid. com.) "that the business transacted at the board is entirely civil in ninety-nine cases out of one hundred. a purely medical case does not come before us once in twenty boards." these considerations certainly appear to indicate a natural and necessary division of the board into a deliberative central body, sitting _en permanence_, once, twice, or oftener in the week, if necessary, and a corps of visitors and reporters to examine the state of asylums and the insane throughout the country. this division of the commission would obviate the chief objection to an increase of the number of members; viz. that a larger number of commissioners than at present would render the board unwieldy, and rather impede than facilitate its business as a deliberative assembly. we entertain, moreover, the opinion that it would be more satisfactory to those who sought instructions, or whose affairs or conduct were in any way the subject of investigation, to have to deal with such a permanent deliberative or judicial body as proposed, than with one combining, like the members of the present board, the various functions of inspectors, reporters, and judges; a condition, whereby any question agitated must, to a certain extent, be prejudged by the official reports of the very same persons called upon to examine it. again, if this proposed division of the lunacy board took place, it would furnish a better justification for increasing certain of its powers, as these would be wielded by a permanent deliberative body, instead of, as at present, by a commission exercising mingled functions. the value of the board would be increased as a court of reference in all matters, such as the construction and the size of asylums, where the authority of the state, by duly ordered channels, is called for to overrule the decisions of local administrative bodies. lastly, this arrangement would facilitate the amalgamation, proposed by some persons, of the office of the masters with the commission in lunacy; or it would, at least, render the co-operation and combined action of the two offices more simple and easy. there are other reasons for an increase of the staff of the lunacy commission, following from the amount of work which, by any revision of existing statutes, must fall within the compass of its operations. for instance, we regard the suggestion that we have made, that no uncured lunatic or 'nervous' patient should be removed from an asylum or other establishment, without the sanction of the commissioners and their approval of the place and conditions to which the removal is intended,--as very important for the protection of the insane. to carry out this duty will involve a certain amount of labour, particularly as it would often require some member of the commission to examine the patient and the locality in which it is proposed to place him, and to report on the expediency of his removal. often, perhaps, this business might be entrusted to the district medical officer, particularly in the country. on the other hand, in the metropolitan district, the work of district medical officers might be advantageously performed,--at least in all that concerns the insane,--by a couple of the assistant commissioners hereafter spoken of, in addition to their other duties elsewhere. another piece of evidence, to our apprehension, that the present commission is inadequate to the multifarious duties imposed upon it, is, that the commissioners have never hitherto effectually inspected gaols, nor succeeded in getting imbecile and lunatic criminals reported to them with the least approach to accuracy. the inspection of workhouses proved that it did not suffice to receive the reports of workhouse officials respecting the existence and number of insane inmates, but that, to ascertain these facts, personal examination by the commissioners was necessary; and there is no satisfactory reason for supposing the discrimination of insane prisoners to be much better effected than that of workhouse lunatics, in the many prisons distributed over the country. it comes out, in the course of the evidence before the select committee, , that the commissioners know little about the insane inmates of gaols, and that reports of the presence of such inmates are but rarely supplied them. the law requires the commissioners to visit gaols where any lunatics are reported to them to exist; but the duty of reporting is made the business of no particular individual, and therefore, as a natural consequence, no one attends to it. in the evidence referred to, the case of ten alleged lunatics, committed to york castle and imprisoned there for a series of years, as criminals acquitted on the ground of insanity, elicited much attention, and lord shaftesbury alluded to the interference of the lunacy commission on behalf of several lunatics in different prisons. the fact we have brought to light from one government report, as stated at p. of this treatise, is of much moment in discussing the present subject; viz. that there were as many as persons of unsound mind in the ten convict prisons under the immediate control of the government, in the course of one year, and that of these the dartmoor prison wards contained as many as such inmates. there is no allusion, in the commissioners' reports or in the printed evidence of the select committee, to show that these insane prisoners were visited by, or known to, any members of the lunacy board. but, besides these insane inmates thus distinctly made known to us to exist in so few prisons, there must be many more detained in the numerous houses of detention throughout the kingdom. these facts render it an obvious duty on the part of the commission of lunacy to ascertaining the number and condition of this unhappy class of lunatics, and to order suitable provision to be made for them. there is a disposition on the part of some visitors of gaols to erect, or set apart, special wards for lunatic prisoners; a system to be much more deprecated than even the establishment of lunatic wards in connexion with workhouses, and one which will require the active interposition of the lunacy board to discourage and arrest. it were easy to take up the duties of the commissioners in lunacy in detail, and to show that they cannot be efficiently performed by the existing staff; but the fact will be patent to any attentive reader of this chapter and of the foregoing dissertations on the provisions necessary for the care and supervision of lunatics in general. the scheme which we have, with all due deference to established authorities, sketched in outline, to increase the jurisdiction and usefulness of the lunacy commission, provides for a division of its staff; in the first place, by altering to a greater or less extent the character and position of the present board, so as to constitute it a fixed central commission or council, chiefly charged with adjudging and determining questions put before it; with superintending the public arrangements for the interests of the insane generally, and with providing for the good and regular management, organization, and construction of lunatic asylums; and in the next place, by instituting, in connexion with this head deliberative body (which need not, by the way, consist of so many members as the present commission), a corps of assistant commissioners, specially charged with the duties of visitation, inspection, and reporting, and with the carrying out of the resolutions determined on by the deliberative council. at the same time, the power of visiting and reporting might still be left with some commissioners under certain circumstances, as well as in making special investigations, and in examining matters of dispute raised upon the reports of the assistants. though differing from so high an authority as the noble chairman of the lunacy board, we must say that we cannot conceive of it as at all a necessary consequence, that, if the work of visitation to asylums and lunatics is performed by a class of inspectors or assistant commissioners, and not by the present members of the commission, it must be indifferently done, and prove a source of dissatisfaction:--that is, we have no such apprehensions, provided always that proper men are appointed, and that their official status is made what it ought to be, both in remuneration and in independence of position. nor can we agree to the giving up of the proposed plan on the score of its expense. if the whole of the lunatic and 'nervous' people suffering confinement in this country are to be brought within the knowledge and under the supervision of the lunacy commissioners, if the enlarged provisions of the law necessary for their proper care and treatment,--and even those only among them proposed by the commissioners themselves are to be carried into effect,--the commission must be increased. and, instead of adding new commissioners on the same footing and salary as the existing ones, we believe the public would be better served by the appointment of assistant commissioners with the duties we have proposed,--two of whom could be remunerated at the same outlay as one full commissioner. moreover, we have proposed that the sum payable out of the masters' office to medical visitors be devoted to the purposes of the commission; and, if our notion of a central deliberative body were accepted, one legal and one medical member of the present commission could well be spared to undertake more especially the duties of visiting commissioners. lastly, if the jurisdiction and powers of the commission were extended to all lunatics living singly and to so-called 'nervous patients,' a considerable addition to the treasury would be obtained, even by a small tax, or per-centage on income. probably six assistant commissioners, constantly employed in the work of inspection, with the aid of two visiting chief commissioners from the present board, would suffice for the discharge of the duties to be entrusted to them. if so, the cost of six such additional officers would be very trifling, covered as it would be by increased funds passing into the hands of the central office in the administration of the improved legislation. if precedent be a recommendation to a plan, it can be found in favour of appointing assistant commissioners in the example of the scotch lunacy commission, and in the constitution of the poor law board, which has a distinct class of officers known as inspectors. in fact, every other government board or commission, except that of lunacy, has a staff of assistants or of inspectors. chap. xi.--on some principles in the construction of public lunatic asylums. in the preceding pages of this book we have had occasion to discuss many important points respecting the organization of public asylums; and, as we entertain some views at variance with the prevalent system of asylum construction, a supplementary chapter to elucidate them cannot be misplaced. the substance of the following remarks formed the subject of a chapter on asylum construction published by us in the 'asylum journal' (vol. iv. , p. ) above a year since, and, as we then remarked, the principles put forward had been adopted by us some five or six years previously, and were strengthened and confirmed by the extended observations we had personally made more recently on the plans and organization of most of the principal asylums of france, germany, and italy. all the public asylums of this country are, with slight variations, constructed after one model, in which a corridor, having sleeping-rooms along one side, and one or more day-rooms at one end,--or a recess (a sort of dilatation or offset of the corridor at one spot), in lieu of a room, constituting a section or apartment fitted for constant occupation, day and night, forms--to use the term in vogue--a 'ward.' an asylum consists of a larger or smaller number of these wards, united together on the same level, and also superposed in one, two, three, and occasionally four stories. there are, indeed, variations observed in different asylums, consisting chiefly in the manner in which the wards are juxtaposed and disposed in reference to the block and ground plans, or in the introduction of accessory rooms, sometimes on the opposite side of the corridor to the general row of small chambers, to be used as dormitories or otherwise; but these variations do not involve a departure from the principle of construction adopted. those who have perambulated the corridors of monastic establishments will recognize in the 'ward-system' a repetition of the same general arrangements,--a similarity doubtless due in part to the fact of ancient monasteries having been often appropriated to the residence of the insane, and in part to the old notions of treatment required by the insane, as ferocious individuals, to be shut apart from their fellow-men. whilst the ideas of treatment just alluded to prevailed, there was good reason for building corridors and rows of single rooms or cells; but, since they have been exploded, and a humane system of treating the insane established in their place, the perpetuation of the 'ward-system' has been an anomaly and a disastrous mistake. the explanation of the error is to be found in the facts,--that medical men in england, engaged in the care of the insane, have contented themselves with suggesting modifications of the prevailing system,--than which indeed they found no other models in their own country; and that the usual course has been, to seek plans from architects, who, having no personal acquaintance with the requirements of the insane, and the necessary arrangements of asylums, have been compelled to become copyists of the generally-approved principle of construction, which they have only ventured to depart from in non-essential details, and in matters of style and ornamentation. the literature of asylum architecture in this country evidences the little attention which has been paid to the subject. the only indigenous work on asylum-building--for the few pages on construction in tuke's introduction to his translation of jacobi's book, and the still fewer pages in dr. brown's book on asylums, published above twenty years ago, do not assume the character of treatises--is the small one by dr. conolly, and even this is actually more occupied by a description of internal arrangements in connexion with the management of lunatics, than by an examination of the principles and plans of construction. this bald state of english literature on the subject of construction contrasts strongly with the numerous publications produced on the continent, and chiefly by asylum physicians, the best-qualified judges of what an asylum ought to be in structure and arrangements. however, to resume the consideration of the 'ward-system' as it exists, let us briefly examine it in its relations to the wants and the treatment of the insane. every day adds conviction to the impression, that the less the insane are treated as exceptional beings, the better is it both for their interests and for those who superintend them. in other words, the grand object to be kept in view when providing for the accommodation of the insane, is to assimilate their condition and the circumstances surrounding them as closely as possible to those of ordinary life. now, though it is clearly impracticable to repeat all the conditions of existence prevailing in the homes of the poorer middle and pauper classes of society who constitute the inmates of our public asylums, when these persons are brought together to form a large community for their better treatment and management, yet we may say of the 'ward-system,' that it is about as wide a departure from those conditions as can well be conceived. it is an inversion of those social and domestic arrangements under which english people habitually live. the new-comer into the asylum is ushered into a long passage or corridor, with a series of small doors on one side, and a row of peculiarly-constructed windows on the other; he finds himself mingled with a number of eccentric beings, pacing singly up and down the corridor, or perhaps collected in unsocial groups in a room opening out of it, or in a nondescript sort of space formed by a bulging-out of its wall at one spot, duly lighted, and furnished with tables, benches, and chairs, but withal not a room within the meaning of the term, and in the patient's apprehension. presently, he will be introduced through one of the many little doors around him into his single sleeping-room, or will find himself lodged in a dormitory with several others, and by degrees will learn that another little door admits him to a lavatory, another to a bath, another to a scullery or store-closet, another to a water-closet (with which probably he has never been before in such close relation), another to a _sanctum sanctorum_--the attendant's room, within which he must not enter. within this curiously constructed and arranged place he will discover his lot to be cast for all the purposes of life, excepting when out-door exercise or employment in a workroom calls him away: within it he will have to take his meals, to find his private occupation or amusement, or join in intercourse with his fellow-inmates, to take indoor exercise, and seek repose in sleep; he will breathe the same air, occupy the same space, and be surrounded by the same objects, night and day. this sketch may suffice to illustrate the relations of a ward as a place of abode for patients, and to exhibit how widely different are all the arrangements from those they have been accustomed to. let us now notice briefly the relations of the ward-system to the treatment required for insane inmates. the monotonous existence is unfavourable: the same apartment and objects night and day, and the same arrangements and routine, necessitated by living in a ward, are not conducive to the relief of the disordered mind. where access to the sleeping-rooms is permitted by day, the torpid and indolent, the melancholic, the morose and the mischievous, will find occasion and inducement to indulge in their several humours; opportunity is afforded them to elude the eye of the attendants, to indulge in reverie, and to cherish their morbid sentiments. when the rules of the institution forbid resort to their rooms by day, the idea of being hardly dealt with by the refusal will probably arise in their minds, since the inducement to use them is suggested by their contiguity; the doors, close at hand, will ever create the desire to indulge in the withheld gratification of entering them. how many insane are animated with a desire to lounge, to mope unseen, and to lie in bed, needs not to be told to those conversant with their peculiarities; and, surely, the removal of the temptation to indulge would be a boon both to physician and patients. again, the corridor and its suite of rooms present obstacles to ventilation and warming, and, as the former in general serves, besides the purpose of a covered promenade, that of a passage of communication between adjoining wards, it is less fitted for the general purposes of daily life, and the passage to and fro of persons through it is a source of disturbance to its occupants, and often objectionable to the passer-by. as a place of indoor exercise, the corridor has little real value, especially when considered in relation to the other objects it has to serve. those who desire to sit still, to read, to amuse or to employ themselves, feel it an annoyance to have one or more individuals walking up and down, and often disposed to vagaries of various sorts; few of the whole number care for perambulating it if they can get out of doors for exercise (and there are not many days when they cannot), and, as far as concerns the health of those few who use the corridor for exercise, it would be better to encourage them to walk in the grounds, than, by having such a space within doors, to induce their remaining there. when casual sickness or temporary indisposition overtakes a patient, and a removal to the infirmary ward is not needed, though repose is required, it is a great disadvantage to have an exercising corridor in such immediate contiguity with the bedroom, and to have the room open into the corridor; for it is an arrangement more or less destructive of quiet, and exposes the poor sufferer to the intrusion of the other inmates of the ward, unless the room-door be locked,--a proceeding rarely advisable under the circumstances supposed. the introduction of the plan of building an open recess in a corridor as a sitting apartment instead of an ordinary room was a consequence of the difficulties experienced in exercising an efficient supervision of the inmates when dispersed, some in the corridor, and others in the day or dining rooms. yet, although the plan in question partially removes these difficulties, no one could wish to exchange the advantages in comfort and appearance of a sitting-room with the greater approximation it affords to the ordinary structure of a house, for a recess in a corridor, if effectual supervision could in any other way be attained. but the plan of a corridor with an offset in lieu of a room does not secure a completely effective oversight, control, and regulation of the occupants, since it presents many opportunities, in its large space, and by the disposition of its parts, for those to mope who may be so disposed, and for the disorderly to annoy their neighbours, without arresting the attention of the one or two attendants. in the construction and arrangements of a ward, it is necessary to provide for all the wants of the inmates both by day and night, to supply the fittings and furniture needed by the little community inhabiting it; and all such arrangements and conveniences have consequently to be repeated in every one of the many wards found in the asylum, at a very large cost. again, by the ward-system, the patients are lodged on each floor of the building, and therefore the service of the asylum becomes more difficult, just in proportion to the number of stories above the ground-floor, or the basement, where the kitchen and other general offices are situated. it is chiefly to obviate this difficulty that the elevation of our public asylums has been limited to two stories, and a greater expenditure thereby incurred for their extension over a larger area. (see p. .) from whatever point of view the ward-system may be regarded, there is in it, to our view, an absence of all those domestic and social arrangements and provisions which give a charm to the homes of english people. the peculiar combination of day and night accommodation is without analogy in any house; whilst the sitting, working, or reading, and, occasionally, the taking of meals, in a corridor, a place used also for exercise, and for the passage of persons from one part of the asylum to another, represent conditions of life without parallel among the domestic arrangements of any classes of the community. the principle of construction we contend for is, the separation, as far as practicable, of the day from the night accommodation. instead of building wards fitted for the constant habitation of their inmates, we propose to construct a series of sitting or day rooms on the ground-floor, and to devote the stories above entirely to bedroom accommodation. not that we would have none to sleep on the ground-floor, for we recognise the utility of supplying accommodation there, both by night and day, for certain classes of patients, such, for instance, as the aged and infirm, who can with difficulty mount or descend stairs; the paralytics; some epileptics, and others of dirty habits, and the most refractory and noisy patients. the last-named are, in our opinion, best lodged in a detached wing, particularly during their paroxysms of noise and fury, according to the plan adopted in several french asylums. and we may, by the way, remark, that if such patients were so disposed of, one reason assigned for internal corridors as places requisite for indoor exercise, would be set aside, inasmuch as these are supposed practically to be most useful to that class of asylum inmates. in our paper on construction in the 'asylum journal,' before referred to, we illustrated (_op. cit._ p. ) our views by reference to a rough outline of a part of a plan for a public asylum we had some years before designed; but it seems unnecessary to reproduce that special plan here, since, if the principle advocated be accepted, it becomes a mere matter of detail to arrange the disposition, the relative dimensions, and such like particulars, whether of the day-rooms below or of the chambers above. there is this much, however, worth noting, that, by the construction of adjoining capacious sitting-rooms, it is easy so to order it, that any two, or even three, may, by means of folding-doors, be thrown into one, and a suite of rooms obtained suited for public occasions, for dancing, for lectures, or theatricals. so again, even in the case of those who may be placed together in the same section of the establishment, and who join at meals, the construction of two or more contiguous sitting-rooms affords an opportunity for a more careful classification, in consideration of their different tastes, and of their capability for association, for employment, or for amusement. however, without delaying to point out the advantages accruing in minor details of internal arrangements when the principle is carried out, let us briefly examine its merits abstractedly, and in relation to the system in vogue. . it assimilates the condition of the patients to that of ordinary life, as far as can be done in a public institution. they are brought together by day into a series of sitting-rooms adapted to the particular class inhabiting them, and varied in fittings and furniture according to the particular use to which they are applied,--as, for instance, for taking meals, or for the lighter sorts of work, indoor amusements, and reading. for the sections, indeed, inhabited by the more refractory and the epileptic, a single day-room would suffice. when thus brought together in rooms, instead of being distributed along a corridor and its divergent apartments, association between the several patients can be more readily promoted; and this is a matter worth promoting, for the insane are morbidly selfish and exclusive. likewise, it becomes more easy for the attendants to direct and watch them in their amusements or occupations, and to give special attention or encouragement to some one or more of their number without overlooking the rest. besides this, rooms admit of being arranged and furnished as such apartments should be; whilst, whatever money may be laid out in furnishing and ornamenting corridors, they can never be rendered like any sort of apartment to be met with in the homes of english people. the separation of the sleeping-rooms from the day accommodation also has the similar advantage of meeting the wishes and habits of our countrymen, who always strive to secure themselves a sitting and a bed room apart: and, altogether, it may be said, that in a suite of day-rooms disposed after the plan advocated, and in the perfectly separated bedroom accommodation, there is, to use a peculiarly english word, a _comfort_ completely unattainable by the ward-system, however thoroughly developed. . greater salubrity and greater facilities for warming and ventilation are secured. it will be universally conceded that sleeping-rooms are more healthy when placed above the ground-floor, so as to escape the constant humidity and exhalations from the earth, particularly at night. the system suggested secures this greater salubrity for the majority of the population, who occupy the upper floors during the night; those only being excepted, whom, for some sufficient reason, it is desirable not to move up and down stairs, or not to lodge at night in the immediate vicinity of the rest of the patients. again, the separation of the apartments for use by day from those occupied at night favours the health of the establishment by rendering ventilation more easy and complete. in a ward occupied all day and all night, the air is subject to perpetual vitiation, and, whilst patients are present, it is, especially in bad weather, difficult or quite unadvisable to attempt thorough ventilation by the natural means of opening windows and doors,--a means which we believe to be preferable to all the schemes of artificial ventilation of all the ingenious engineers who have attempted to make the currents of air and the law of diffusion of gases obedient to their behests. but "the wind bloweth where it listeth," and all the traps set to catch the foul exhalations, and all the jets of prepared fresh air sent in from other quarters, will not serve their bidding: the airy currents will disport themselves pretty much as they please, and intermingle in spite of the solicitations of opposing flues to draw them different ways. but if, on our plan, the apartments for day use are kept completely distinct from those used by night, each set being emptied alternately, a most thorough renewal of air may be obtained by every aperture communicating with the external atmosphere. the actual construction of a ward creates an impediment to the perfect ventilation of all its apartments. there is a wide corridor, and along one side a series of small chambers, the windows of which are necessarily small, and sometimes high up; the windows, too, both in rooms and corridor, must be peculiarly constructed, and the openings in them for ventilation small. although it is easy in this arrangement to get a free circulation of air along the corridor, it is not so to obtain it for each room opening out of it. by the scheme of construction we propose, these difficulties are mostly removed. the day-rooms on the ground-floor need no corridor alongside, and, as a single series or line of apartments, are permeated by a current of air traversing them from side to side. but if, for the convenience of the service of the house, some passage were thought necessary, it would be external to the rooms, and in designing the asylum it should be an object to prevent such corridors of communication interfering with the introduction of windows on the opposite sides of each sitting-room. on the bedroom-floor above, a corridor, where necessary, would not be a wide space for exercise, such as is required for a ward, but merely a passage, giving access from one part of the building to another. so, with respect to the windows, except those in the single bedrooms, it would be perfectly compatible with security to construct them much after the usual style adopted in ordinary houses, and thereby allow large openings for the free circulation of air. further, when the patients inhabit ordinarily-constructed sitting-rooms, the warming of these may be effected by the common open fires, which are dear to the sight and feelings of every englishman, and impart a cheerful and home-like character. likewise, there would be no need of keeping the whole building constantly heated at an enormous expense; for only one half of it would be occupied at a time, nor would those most costly and complicated systems of heating be at all required. the saving in large public asylums would be something very large in this one item,--that of fuel to burn, without counting the expenditure which is generally incurred for the heating apparatus, flues, furnaces, and shafts. as with the warming, so with the lighting of an institution constructed on our model,--only one-half would require illumination at the same time, and much gas-fitting would be saved by the diminution of the number of small apartments, repeated, after the prevailing model, in every ward, and requiring to be lighted. . access to the airing courts, offices, workshops, &c., becomes easier to all the inmates. according to the established system of construction, the half, or upwards, of the patients have to descend from the wards on the upper floors for exercise or for work, and to ascend again to them for their meals, or to retire to rest. this ascent and descent of stairs may have to be repeated several times daily; and it must be remembered that it cannot take place without the risk of various inconveniences and dangers necessarily dependent on stairs, and that it must frequently entail trouble and anxiety upon the attendants, particularly in mischievous and in feeble cases. the plan advocated obviates all these evils, so far as practicable. the patients would have to go up and down stairs only once a-day, and the attendants, therefore, escape much of the constantly occurring trouble of helping the feeble, or of inducing the unwilling to undertake the repeated ascent and descent,--a task ever likely to be neglected, and to lead to patients being deprived, to a greater or less extent, of out-door exercise and amusement. . it facilitates supervision. supervision, both by the medical officers and by the attendants, becomes much more easy and effectual when the patients are collected in rooms, affording them no corners or hiding-places for moping and indulging in their mental vagaries, their selfishness and moroseness. when the medical officer enters the day-room, all the inmates come at once under his observation, and this affords him the best opportunity of noting their cases, and of discovering their condition and progress. by the attendants similar advantages are to be gained; the patients will be more immediately and constantly under their eye than when distributed in a corridor and connected rooms; their requirements will be sooner perceived, and more readily supplied; their peculiarities better detected and provided against; their insane tendencies more easily controlled and directed; whilst, at the same time, the degree and mode of association will call forth feelings of interest and attachment between the two. just as supervision becomes more easy by day, so does watching by night; for almost the whole staff of attendants would sleep on the same floor with the patients, and thereby a more immediate communication between them be established, and a salutary check on the conduct of the latter, from the knowledge of the attendants being close at hand, more fully attained. perhaps these advantages will appear more clear when it is understood that the subdivision of the bed-room floor into several distinct wards, cut off from each other by doors, stair-landings, &c., would not be at all necessary on the principle of construction recommended. the comparatively few noisy patients in a well-regulated asylum would occupy the sleeping-rooms of the ground-floor wings, if not placed in a distinct section; and therefore, the inhabitants of the floor above being all quiet patients, no partitions need separate their section of the building into distinct portions or wards, and act as impediments to the freedom of communication and ventilation. this matter of the partitions needed is, however, a point of detail, which would have to be determined pretty much by the general design adopted. . classification is more perfect. owing to the sleeping apartments being quite distinct from those occupied by day, the rule usually observed in a ward, as a matter of necessary convenience, of keeping the same group of occupants in it both night and day, need not at all be followed. on retiring from their sitting-rooms, where they have been placed according to the principles of classification pursued, the day association would be broken up, and their distribution in the sleeping-rooms might be regulated according to their peculiar requirements at night. this valuable idea, of arranging patients differently by day and by night, was put forward by dr. sankey, of hanwell ('asylum journal,' vol. ii. , p. ), in the following paragraph:--"whatever the basis of the classification, it will not hold good throughout the twenty-four hours: why, therefore, should it be attempted to make it do so? at night the classification should be based on the requirement of the patient during the night; and during the day, the patient should be placed where he can be best attended during the day." let us add, that the more perfectly dr. sankey's principle could be carried out, the more easy would supervision be rendered. since mechanical restraint has been set aside, seclusion in a specially-constructed chamber, or in the patient's own room, has in some measure taken its place, and been frequently abused; for it is more difficult to control the employment of seclusion than of instrumental restraint, and in a ward there is almost a temptation to employ it where a patient is inconveniently troublesome to the attendant; the single room is close at hand, and it is a simple matter to thrust the patient into it, and an easy one to release him if the footstep of the superintendent is heard approaching. the plan of construction we would substitute for the ward-system would almost of itself cure the evil alluded to. furthermore, since sitting-rooms and other apartments to meet the exigencies of daily use are excluded from the upper floors, it would become easier for the architect to dispose the single rooms and dormitories, and more especially the attendants' rooms, with a view to the most effectual supervision. we may, in fine, state under the two last heads, generally, that access to the patients, their quiet and comfort, their watching and tending and their classification will be more readily and also more efficiently secured by the arrangement pointed out, than by the system of construction hitherto pursued in this country. . domestic arrangements will be facilitated in various ways.--the patients, in the first place, will be less disturbed by the necessary operations of cleaning, which every superintendent knows are apt to be a source of irritation and annoyance, both to patients and attendants. the ground-floor may be prepared for the day's use before the patients leave their bedrooms; and in the same way the latter may be cleaned during the occupation of the ground-floor. by the present constitution of a ward for use both night and day, considerable inconvenience, and many irregularities in management constantly result. the cleaning has to be hurried over, or to be done at awkward hours, to avoid alike the interruption of patients, or the being interrupted by them; and, at the best, it will from time to time happen that patients are excluded from their day or their bedrooms, or from the corridors, during the operation. another advantage will accrue from the system proposed. the amount of cleaning will be much diminished, for the two floors will be used only alternately, and not only the wear and tear of the entire building, but also the exposure to dirt will be greatly lessened; above all, the small extent of corridor will make an immense difference in the labour of the attendants in cleaning, compared with that which now falls to their lot. again, the drying of floors after they have been washed is always a difficulty, particularly in winter, and is the more felt in the case of the bedrooms, which have, when single-bedded or small, but a slight current of air through them, and consequently dry slowly. this difficulty is augmented, when, as it often happens, it is necessary for them to be kept locked, to prevent the intrusion of their occupants or of others. the ill effects of frequently wetted floors in apartments constantly occupied, and therefore dried during occupation, have been fully recognized and admitted by hospital surgeons, and have impressed some so strongly, that, to escape them, they have substituted dry rubbing and polished floors to avoid the pail and scrubbing-brush. by the arrangements submitted, however, this difficulty in washing the floors is removed, since there is no constant occupancy of the rooms, and therefore ample time for drying permitted. further, by the plan in question, the distribution of food, of medicine, and of stores, becomes more easy and rapid; the collection, and the serving of the patients at meals, are greatly simplified and expedited. a regularity of management in many minor details will likewise be promoted. as the majority of the patients are quite removed from proximity to their sleeping-rooms, the temptation and inducement to indulge in bed by day, or before the appointed hour at night, will be removed, as will also the irregularity frequently seen in wards some time before the hour of bed, of patients prematurely stowed away in their beds, and of others disrobing, whilst the remainder of the population is indulging in its amusements, its gossips, or in the 'quiet pipe,' before turning in. . management facilitated.--our own experience convinces us that there is no plan so effectual for keeping otherwise restless and refractory patients in order as that of bringing them together into a room, under the immediate influence and control of an attendant, who will do his best to divert or employ them. we are, let it be understood, only now speaking of their management when necessarily in-doors; for, where there is no impediment to it, there is nothing so salutary to such patients as out-door exercise, amusement, and employment. on the contrary, to turn refractory patients loose into a large corridor, we hold to be generally objectionable. its dimensions suggest movement; the patient will walk fast, run, jump, or dance about, and will, under the spur of his activity, meddle with others, or with furniture, and the like; and if an attendant follow or interfere, irritation will often ensue. but in a room with an attendant at hand, there are neither the same inducements nor similar opportunities for such irregularities. some would say, such a patient is well placed in a corridor, for he there works off his superabundant activity. but we cannot subscribe to this doctrine; for we believe the undue activity may be first called forth by his being placed in a corridor; and that it is besides rare that a patient, particularly if his attack be recent, has any actual strength to waste in such constant abnormal activity as the existence of a space to exercise it in encourages. and, lastly, it is better to restrict the exhibition of such perverted movement to the exercising grounds, or better still to divert it to some useful purpose by occupation; for in a ward such exhibitions are contagious. these remarks bear upon the question of the purpose and utility of corridors as places for exercise, concerning which we have previously expressed ourselves as having a poor opinion, and have throughout treated corridors mainly as passages or means of communication. . a less staff of attendants required.--if the foregoing propositions, relative to the advantages of the system propounded, be admitted, the corollary, that a less staff of attendants will suffice, must likewise be granted, and needs not a separate demonstration. there is this much, however, to be said, that the proposition made in a former page to distinguish attendants upon the insane from the cleaners or those more immediately concerned in the domestic work of the house, would be an easier matter when the construction followed the principles recommended. the attendants upon the occupants of the sitting-rooms need be but few, for their attention would not be distracted from their patients by domestic details; for the cleaners would prepare the apartments ready for occupation, would be engaged in fetching and carrying meals, fuel, and other things necessary for use, and the attendants would thereby be deprived of numerous excuses for absence from their rooms, and for irregularities occurring during their occupation with household duties. . the actual cost of construction of an asylum on the plan set forth would be greatly diminished.--it has just been shown that the proposed plan will ensure a more ready and economical management; and if structural details could be here entered upon, in connexion with an estimate of costs for work and materials, it could without difficulty be proved, that the cost of accommodation per head, for the patients, would fall much under that entailed by the plan of building generally followed. the professional architect who assisted us made a most careful estimate of the cost of carrying out the particular plan we prepared (designed to accommodate patients), and calculated that every expense of construction, including drainage of the site, gas apparatus, farm-buildings, &c., would be covered by £ , , _i. e._ at the rate of less than £ (£ ) per head. that a considerable saving must attend the system propounded will be evident from the fact, that, instead of a corridor, on the first floor, at least twelve feet wide, as constructed on the prevailing plan, one of six feet, or less, simply as a passage for communication, is all that is required, and thus a saving of about that number of feet in the thickness or depth of the building, in each story above the ground-floor, is at once gained. a similar, though smaller, economical advantage is likewise obtained on the ground-floor, for the corridor there need be nothing more than an external appendage, and of little cost to construct. a further saving would attend the construction of an asylum on the plan set forth, both from the concentration of the several parts for night and day use respectively, and generally from the rejection of the ward-system. the construction of almost all the sleeping accommodation on one floor would render many provisions for safety and convenience unnecessary,--for instance, in the construction of the windows. so the substitution of what may be termed divisions, or quarters in lieu of wards, would do away with the necessity of many arrangements requisite for apartments, when intended for use, both by night and day. as constructed commonly, each ward is a complete residence in itself, replete with all the requisites for every-day life, except indeed in the cooking department; and the consequence is, there is a great repetition throughout the institution of similar conveniences and appurtenances. indeed, in the plan we designed, the influence of example or general usage led us to introduce many repetitions of several accessory apartments, which were, in fact, uncalled for, and added much to the estimate. for instance, we assigned a bath-room to each division, although we consider that a room, well-placed, to contain several baths (_i. e._ in french phrase, a 'salle des bains'), would more conveniently serve the purpose of the whole ground-floor inmates, and be much cheaper to construct and to supply. yet, if this notion of a 'bath-house' be unacceptable to english asylum superintendents, a smaller number of bath-rooms than was either provided in the particular plan alluded to, or is usually apportioned to asylums, would assuredly suffice. the same may be said of the lavatories, sculleries, and store-rooms. . the plan removes most of the objections to the erection of a second-floor or third-story. these objections generally owe their force to the difficulty of assuring the inmates of a third-story their due amount of attention, and their fair share of out-door exercise, and of much indoor amusement, without entailing such trouble upon all parties concerned, that a frequent dereliction or negligence of duty is almost a necessary consequence. dr. bucknill ('asylum journal,' vol. iii., , p. , _et seq._) has well argued against the erection of a third-story, on economical grounds; and remarks that "practically, in asylums built with a multiplicity of stories, the patients who live aloft, are, to a considerable extent, removed from the enjoyment of air and exercise, and the care and sympathy of their fellow-men. they are less visited by the asylum officers, and they less frequently and fully enjoy the blessings of out-door recreation and exercise. those below will have many a half-hour's run from which they are debarred; the half-hours of sunshine on rainy days, the half-hours following meals, and many of the scraps of time, which are idly, but not uselessly spent, in breathing the fresh air." the foregoing considerations are certainly sufficient to condemn the appropriation of a third story for the day and night uses of patients, according to the 'ward-system' in operation; but they have no weight when the floor is occupied only for sleeping. we must confess we cannot appreciate the chief objection of dr. bucknill (_op. cit._ pp. , ,) to the use of a third floor for sleeping-rooms only, for we do not see the reason why "the use of a whole story for sleeping-rooms renders the single-room arrangement exceedingly inconvenient;" for surely, on the common plan of construction, a row of single rooms might extend the whole length of a third floor on one side of a corridor, equally well as on the floors beneath. without desiring to enter on the question of the relative merits of single-room and of dormitory accommodation, to examine which is the special object of the paper quoted, we may remark, that the addition of a third story, when the plan we have advocated is carried out, obviates the generally admitted objections to such a proceeding. the same arrangement of apartments may obtain in it as on the bedroom-floor below, and the proportion of single rooms to dormitories, viz. one-third of the whole sleeping accommodation to the former, insisted upon by dr. bucknill, can be readily supplied. attention would only be required to allow in the plan sufficient day-room space on the ground-floor,--a requirement to be met without difficulty. the existence of a third story is no necessary feature to an asylum constructed on the principle discussed, and we have adverted to it for the sole purpose of showing that the ordinary objections to it are invalid, when the arrangement and purposes of its accommodation are rendered conformable to the general principles of construction advocated in this chapter. a hint from dr. bucknill's excellent remarks on the advantage of being able to utilize spare half-hours must not be lost. two flights of stairs, he well states, constitute a great obstacle to a frequent and ready access to the open air, and we are sure he would allow even one to be a considerable impediment to it; and, consequently, that an asylum with no stairs interposing between the patients and their pleasure-grounds would possess the advantage of facilitating their enjoyment of them. these remarks on the advantages of the principle of construction we advise for adoption would admit of extension, but sufficient has been advanced, we trust, to make good our views. we have taken in hand to write a chapter on some principles in the construction of public asylums, but we must stop at the point we have now reached; for it would grow into a treatise, did we attempt to examine the many principles propounded, and entirely surpass the end and aim of this present work. the end. printed by taylor and francis, red lion court, fleet street. state trials _first impression, march _ _second impression, september _ _all rights reserved_ [illustration: william lord russell.] state trials political and social selected and edited by h. l. stephen in two volumes vol. ii [illustration] london duckworth and co edinburgh: t. and a. constable, printers to her majesty contents page lord russell, the earl of warwick, spencer cowper and others, samuel goodere and others, index, lord russell lord russell's trial marks the moment in the latter part of charles ii.'s reign when his power reached its highest point. the exclusion bill was thrown out by the house of lords in , and though stafford was tried and executed at the end of the year, the dissolution of the short-lived oxford parliament in april left the country party, who had just acquired the name of whigs, in a temporarily hopeless position. on the nd of july in the same year shaftesbury was arrested on a charge of suborning witnesses in the popish plot, but the bill presented against him was thrown out by the grand jury, which had been packed in his favour by a friendly sheriff, and he was liberated in november. an unscrupulous exercise of the power of the court led to north (brother of the chief-justice of the common pleas, soon to become lord keeper) and rich being sworn in as sheriffs in june , and shaftesbury, no longer being able to rely on his city friends, retired into hiding and entered on the illegal practices described in russell's trial. the security afforded to the opponents of the court was further diminished in by the suppression of the charter of the city by a writ of quo warranto, which, although it was too late to have any effect on russell's conduct, may help to justify it. the position of the country party thus appeared desperate. the king had contrived to overcome all constitutional means of opposition; shaftesbury's unscrupulous policy had alienated most of his natural adherents; his violent disposition made it impossible for his remaining followers to take advantage of the difficulties which the king was preparing for himself and his successor; and by anticipating the crisis of , shaftesbury, essex, and russell brought down destruction on themselves. lord russell was tried at the old bailey on the th of july before the lord chief-justice, sir francis pemberton,[ ] the lord chief-baron, mr. william montague, and nine other judges. there appeared for the prosecution the attorney-general, sir robert sawyer[ ], the solicitor-general, mr. finch[ ], serjeant jeffreys[ ], mr. north[ ]. the charge against lord russell was that he was guilty of high treason in conspiring to depose and kill the king, and to stir up rebellion against him. to this he pleaded not guilty. he objected that he ought not to be arraigned and tried on the same day, to which it was replied that he had had more than a fortnight's notice of his trial and the facts alleged against him by having questions put to him when he was in custody in the tower. on the first juror being called, lord russell objected that he was not a s. freeholder in the city. he was allowed to have counsel assigned to him to argue as to whether this was a good ground of objection; the counsel he chose were pollexfen[ ], holt[ ], and ward. the question was whether the statute hen. v. c. , which enacted that in the case of capital offences the jurors must have lands of the yearly value of s., applied to trials for treason or to trials in the city. it was decided by all the judges that it did not,[ ] the objection was overruled, and a jury was sworn without any challenges being made. _north_ then shortly opened the case. he alleged that in the previous october and november a council consisting of russell, the duke of monmouth, lord grey,[ ] sir thomas armstrong, and one ferguson, were plotting a rising in conjunction with the earl of shaftesbury. the earl was anxious that the opportunity of the celebration of queen elizabeth's birthday on the th of november should be used for the purpose. the conspirators objected to this on the ground that trenchard, who was to have headed a rising in the west, was not ready. on this shaftesbury and ferguson left the country, and the so-called council was re-organised by armstrong and grey being left out, and lord howard,[ ] lord essex,[ ] colonel algernon sidney,[ ] and mr. hampden,[ ] being taken in. frequent consultations were held at russell's house, and aaron smith was despatched to scotland to arrange a rising on the part of the malcontents there. _rumsey_[ ] was called, and being sworn deposed that at the end of october or the beginning of november shaftesbury had sent for him to his lodgings in wapping, where he was hiding, and told him to go to the house of one sheppard, where he could find monmouth, russell, grey, armstrong, and ferguson, and to ask what resolution they had come to as to the rising at taunton. he took this message accordingly, and received an answer that trenchard had promised foot and horse, but had failed them. most of this answer was delivered by ferguson, but others, including russell, were in the room at the time. attorney-general--was there nothing of my lord shaftesbury to be contented? rumsey--yes, that my lord shaftesbury must be contented; and upon that he took his resolution to be gone. lord chief-justice--did you hear any such resolution from him? rumsey--yes, my lord. shaftesbury told him of the meeting; he was not there more than a quarter of an hour; he heard something of a declaration to be made, either there, or on a report of ferguson's. jeffreys--to what purpose was the declaration? lord chief-justice--we must do the prisoner that right; he says he cannot tell whether he had it from him or mr. ferguson. there was some discourse begun by armstrong as to the posture of the guards at the savoy and at the mews. monmouth, grey, and armstrong, in russell's presence, undertook to see the guards, with what care and vigilance they did guard themselves at the savoy and mews, whether they might be surprised or not. the rising was to be on the th of november. it was arranged by shaftesbury that he himself was to go to bristol, in what capacity it was not stated. jeffreys--if my lord russell pleases to ask him any questions he may. lord russell--i have very few questions to ask him for i know little of the matter; for it was the greatest accident in the world i was there, and when i saw that company was there i would have been gone again. i came there accidentally to speak with mr. sheppard; i had just come to town, but there was no discourse of surprising the guards, nor no undertaking of raising an army. lord chief-justice--we will hear you to anything by and by, but that which we desire to know of your lordship is, as the witnesses come, to know if you would have any particular questions asked of them. on being pressed by russell, rumsey repeated that russell 'did discourse of the rising' at taunton and consented to it. _sheppard_ was called, and deposed that in october ferguson came to him in monmouth's name, and desired the conveniency of my house, for him and some other persons of quality to meet there. as soon as i had granted it, in the evening the duke of monmouth, my lord grey, my lord russell, sir thomas armstrong, col. rumsey and mr. ferguson came. sir t. armstrong desired me that none of my servants might come up, but they might be private; so what they wanted i went down for, a bottle of wine or so. he confirmed rumsey's evidence as to the discourse about surprising the guards; monmouth, grey, and armstrong went out to view them at the mews; the next time they met armstrong reported the guards were very remiss in their places, and not like soldiers, and the thing was feasible, if they had strength to do it. there were two meetings: he had notice of them; the company came in the evening; he saw no coaches; lord russell came both times. jeffreys--do you remember that col. rumsey at the first time had any discourse about any private business relating to my lord russell? sheppard--no, i do not remember it. attorney-general--besides the seizing of the guards did they discourse about rising? sheppard--i do not remember any further discourse, for i went several times down to fetch wine, and sugar, and nutmeg, and i do not know what was said in my absence. he remembered that a paper was read 'somewhat in the nature of a proclamation,' setting forth the grievances of the nation 'in order to a rising.' it was read by ferguson, but he could not say whether they were all present or not. cross-examined by lord russell, he could not be positive as to the time of the meetings; they were at the time that lord shaftesbury was absent from his house, and he absented himself about michaelmas day. lord russell--i never was but once at your house, and there was no such design as i heard of. i desire that mr. sheppard may recollect himself. sheppard--indeed my lord i can't be positive in the times. my lord i am sure was at one meeting. lord chief-justice--but was he at both? sheppard--i think so; but it was eight or nine months ago, and i can't be positive. lord russell--i can prove i was then in the country. col. rumsey said there was but one meeting. col. rumsey--i do not remember i was at two; if i was not, i heard mr. ferguson relate the debates of the other meeting to my lord shaftesbury. lord russell--is it usual for witnesses to hear one another? lord chief-justice--i think your lordship need not concern yourself about that; for i see the witnesses are brought in one after another. lord russell--there was no design. jeffreys--he hath sworn it. attorney-general--swear my lord howard (which was done). pray will your lordship give an account to the court, what you know of a rising designed before my lord shaftesbury went away, and afterwards how it was continued on. lord howard--my lord, i appear with some confusion. let no man wonder that it is troublesome to me. my lord as to the question mr. attorney puts to me, this is the account i have to give: it is very well known to every one, how great a ferment was made in the city, upon occasion of the long dispute about the election of sheriffs; and this soon produced a greater freedom and liberty of speech one with another, than perhaps had been used formerly, though not without some previous preparations and dispositions made to the same thing. upon this occasion among others, i was acquainted with captain walcot[ ], a person that had been some months in england, being returned out of ireland, and who indeed i had not seen for eleven years before. but he came to me as soon as he came out of ireland, and when these unhappy divisions came, he made very frequent applications to me; and though he was unknown himself, yet being brought by me, he soon gained a confidence with my lord shaftesbury, and from him derived it to others. when this unhappy rent and division of mind was, he having before got himself acquainted with many persons of the city, had entered into such counsels with them, as afterwards had the effect, which in the ensuing narrative i shall relate to your lordship. he came to me, and told me, that they were now sensible all they had was going, that this force put upon them---- lord chief-justice--pray my lord, raise your voice, else your evidence will pass for nothing. one of the jury--we cannot hear my lord. lord howard--there is an unhappy accident happened that hath sunk my voice: i was but just now acquainted with the fate of my lord of essex. my lord, i say, he came to me, and did acquaint me, that the people were now so sensible that all their interest was going, by that violence offered to the city in their elections, that they were resolved to take some course to put a stop to it, if it were possible: he told me there were several consults and meetings of persons about it, and several persons had begun to put themselves into a disposition and preparation to act; that some had furnished themselves with very good horses, and kept them in the most secret and blind stables they could. that divers had intended it, and for his own part he was resolved to imbark himself in it. and having an estate in ireland, he thought to dispatch his son thither (for he had a good real estate, and a great stock, how he disposed of his real estate, i know not); but he ordered his son to turn his stock into money to furnish him for the occasion: this i take to be about august, his son was sent away. soon after this the son not being yet returned, and i having several accounts from him wherein i found the fermentation grew higher and higher, and every day a nearer approach to action i told him i had a necessity to go into essex to attend the concerns of my own estate; but told him how he might by another name convey letters to me, and gave him a little cant, by which he might blind and disguise the matter he wrote about when i was in the country. i received two or three letters from him, that gave me an account in that disguised style, but such as i understood, that the negotiation which he had with my correspondents was going on, and in good condition; and it was earnestly desired i would come to town; this was the middle of september. i notwithstanding, was willing to see the result of that great affair, upon which all men's eyes were fixed, which was the determination of the shrivalty about that time. so i ordered it to fall into town, and went to my own house saturday night which was michaelmas day. on sunday he came to me and dined with me, and told me (after a general account given me of the affairs of the times) that my lord shaftesbury was secreted and withdrawn from his own house in aldersgate street; and that though he had a family settled, and had absconded himself from them, and divers others of his friends and confidents; yet he did desire to speak with me, and for that purpose sent him to shew me the way to his lodging: he brought me to a house at the lower end of wood street, one watson's house, and there my lord was alone. he told me he could not but be sensible, how innocent soever he was, both he and all honest men were unsafe, so long as the administration of justice was in such hands as would accommodate all things to the humour of the court. that in the sense of this he thought it but reasonable to provide for his own safety by withdrawing himself from his own house into that retirement. that now he had ripened affairs to that head, and had things in that preparation, that he did not doubt but he should be able, by those men that would be in readiness in london, to turn the tide, and put a stop to the torrent that was ready to overflow. but he did complain to me, that his design, and the design of the public, was very much obstructed by the unhandsome deportment of the duke of monmouth, and my lord russell, who had withdrawn themselves not only from his assistance, but from their own engagements and appointments: for when he had got such a formed force as he had in london, and expected to have it answered by them in the country, they did recede from it, and told him they were not in a condition or preparation, in the country, to be concurrent with him at that time. this he looked upon but as an artificial excuse, and as an instance of their intentions wholly to desert him: but notwithstanding there was such preparation made in london, that if they were willing to lose the honour of being concurrent with him, he was able to do it himself, and did intend speedily to put it into execution. i asked him what forces he had? he said he had enough. says i, what are you assured of? says he, there is above ten thousand brisk boys are ready to follow me, whenever i hold up my finger. says i, how have you methoded this, that they should not be crushed, for there will be a great force to oppose you? yes, he answered, but they would possess themselves of the gates; and these ten thousand men in hours would be multiplied into five times the number, and be able to make a sally out, and possess themselves of whitehall, by beating the guards. i told him this was a fair story, and i had reason to think a man of his figure would not undertake a thing that might prove so fatal, unless it were laid on a foundation that might give a prudent man ground to hope it would be successful. he said he was certain of it, but confessed it was a great disappointment that these lords had failed him. i told him, i was not provided with an answer at that time; that he well knew me, and knew the general frame and bent of my spirit. but i told him, i looked upon it as dangerous, and ought to be laid deep, and to be very well weighed and considered of: and did not think it a thing fit to be entered upon, without the concurrence of those lords. he did consent, with much ado, but, says he, you will find they will wave it, and give doubtful and deferring answers, but you will find this a truth. i went to moor park next day, where the duke of monmouth was, and told him the great complaint my lord shaftesbury had made, that he failed him. says he, i think he is mad; i was so far from giving him any encouragement, that i did tell him from the beginning, and so did my lord russell, there was nothing to be done by us in the country at that time. i did not then own that i had seen my lord, but spake as if this were brought me by a third person, because he had not given me liberty to tell them where his lodging was. says i, my lord, i shall be able to give a better account of this in a day or two: shall i convey it to my lord, that you are willing to give a meeting? yes, says he, with all my heart. this was the nd, rd, or th of oct. i came to town on saturday, and was carried to him on monday; and i suppose this was tuesday the nd of october. on wednesday i think i went to him again (but it is not very material) and told him i had been with the duke of monmouth and given him a punctual account of what i had from him; and the duke did absolutely disown any such thing, and told me, he never did give him any encouragement to proceed that way, because the countries were not in a disposition for action, nor could be put in readiness at that time. says my lord shaftesbury, it is false: they are afraid to own it. and, says he, i have reason to believe, there is some artificial bargain between his father and him, to save one another: for when i have brought him to action, i could never get him to put on, and therefore i suspect him: and, says he, several honest men in the city have puzzled me, in asking how the duke of monmouth lived: says he, they puzzled me, and i could not answer the question; for i know he must have his living from the king; and says he, we have different prospects; we are for a commonwealth and he hath no other design but his own personal interest, and that will not go down with my people now (so he called them), they are all for a commonwealth: and then, says he, it is to no purpose for me to see him; it will but widen the breach, and i dare not trust him to come hither. says i, my lord, that's a good one indeed! dare not you trust him, and yet do you send me to him on this errand? nay, says he, it is because we have had some misunderstanding of late; but i believe he is true enough to the interest. says i, it is a great unhappiness to take this time to fall out, and i think it is so great a design, that it ought to be undertaken with the greatest strength and coalition in the kingdom. says he, my friends are now gone so far, that they can't pull their foot back again without going further; for, says he, it hath been communicated to so many that it is impossible to keep it from taking air, and it must go on. says he, we are not so unprovided as you think for; there are so many men, that you will find as brisk men as any in england. besides we are to have or horse, that are to be drawn by insensible parties into town, that when the insurrection is, shall be able to scour the streets and hinder them from forming their forces against us. my lord, after great inlargement upon this head, and heads of the like nature, i told him i would not leave him thus, and that nothing should satisfy me, but an interview between him and the lords. no, i could not obtain it: but if i would go and tell them what a forwardness he was in, and that, if they would do themselves right, by putting themselves upon correspondent action in their respective places, and where their interest lay, well; otherwise he would go away without them: so i went again to the duke of monmouth, i spake to him only (i never spake to my lord russell then, only we were together, but i had never come to any close conjunction of counsels in my life with him at that time). says i to the duke, this man is mad, and his madness will prove fatal to us all; he hath been in a fright by being in the tower, and carries those fears about him that cloud his understanding. i think his judgment hath deserted him, when he goes about with those strange sanguine hopes that i can't see what should support him in the ground of them. therefore says i, pray will you give him a meeting? god-so says the duke, with all my heart, and i desire nothing more. now i told him, i had been with my lord shaftesbury, with other inlargements that i need not trouble your lordship with; well, says he, pray go to him, and try if it be possible to get a meeting; so i went to him and told him; says i, this is a great unhappiness and it seems to be a great absurdity, that you are so forward to act alone in such a thing as this. pray, says i, without any more to do, since you have this confidence to send for me, let me prevail with you to meet them, and give them an interview, or else you and i must break. i will no longer hold any correspondence, unless it be so. says he, i tell you they will betray me. in short he did with much importunity yield that he would come out the next night in a disguise. by this time it was saturday, i take it to be the th of oct.: an almanac will settle that: so the next night being sunday and the shops shut, he would come out in a concealment, be carried in a coach, and brought to his own house, which he thought then was safest. i came and gave the duke of monmouth an account of it; the duke i suppose conveyed the same understanding to my lord russell; and i suppose both would have been there accordingly, to have given the meeting: but next morning i found colonel rumsey had left a note at my house, that the meeting could not be that day. then i went to the duke of monmouth and he had had the account before, that my lord shaftesbury did apprehend himself to be in some danger in that house, and that the apprehension had occasioned him to remove; but we should be sure to hear from him in two or three days. we took it as a waiver, and thought he did from thence intend to abscond himself from us, and it proved so to me, for from that time i never saw him. but captain walcot came to me, and told me, that he was withdrawn, but it was for fear his lodging might be discovered, but he did not doubt but in a week he would let me know where his lodging was: but told me within such a time, which i think was eight or ten days, there would be a rising; and i told the duke of monmouth and i believe he told my lord russell; and we believed his frenzy was now grown to that height, that he would rise immediately and put his design into execution: so we endeavoured to prevent it, upon which my lord russell (i was told) and the duke of monmouth, did force their way to my lord shaftesbury's and did persuade him to put off the day of his rendezvous. i had not this from my lord russell, for i had not spoke a word to him: but the duke told me my lord russell had been with him (i had indeed an intimation, that he had been with him but the duke told me, says he, i have not been with him, but my lord russell was, having been conveyed by colonel rumsey). after this day was put off, it seems it was put off with this condition, that those lords and divers others should be in a readiness to raise the country about that day fortnight, or thereabouts; for there was not above a fortnight's time given: and, says the duke of monmouth, we have put it off but now we must be in action, for there is no holding it off any longer. and says he, i have been at wapping all night, and i never saw a company of bolder and brisker fellows in my life; and says he, i have been round the tower and seen the avenues of it; and i do not think it will be hard, in a little time, to possess ourselves of it; but says he, they are in the wrong way, yet we are engaged to be ready for them in a fortnight, and therefore, says he, now we must apply ourselves to it as well as we can. and thereupon i believe they did send into the country and the duke of monmouth told me he spake to mr. trenchard, who was to take particular care of somersetshire, with this circumstance; says he, i thought mr. trenchard had been a brisker fellow; for when i told him of it, he looked so pale, i thought he would have swooned, when i brought him to the brink of action; and said, i pray go and do what you can among your acquaintance; and truly i thought it would have come then to action. but i went the next day to him, and he said it was impossible, they could not get the gentlemen of the country to stir yet. lord russell--my lord, i think i have very hard measure, here is a great deal of evidence by hearsay. lord chief-justice--this is nothing against you, i declare it to the jury. attorney-general--if you please, my lord, go on in the method of time. this is nothing against you, but it's coming to you, if your lordship will have patience, i assure you. lord howard--this is just in the order it was done. when this was put off, then they were in a great hurry; and captain walcot had been several times with me, and discoursed of it. but upon this disappointment they said, it should be the dishonour of the lords, that they were backward to perform their parts; but still they were resolved to go on. and this had carried it to the latter end of october. about the th or th captain walcot came to me, and told me, now they were resolved positively to rise, and did believe that a smart party might perhaps meet with some great men[ ]. thereupon i told the duke of it; i met him in the street and went out of my own coach into his, and told him there was some dark intimation, as if there might be some attempt upon the king's person; with that he struck his breast with a great emotion of spirit, and said, god-so, kill the king! i will never suffer that. then he went to the play-house to find sir thomas armstrong and send him up and down the city to put it off, as they did formerly; and it was done with that success, that we were all quieted in our minds, that at that time nothing would be done: but upon the day the king came from newmarket, we dined together; the duke of monmouth was one, and there we had a notion conveyed among us, that some bold action should be done that day; which comparing it with the king's coming, we concluded it was designed upon the king. and i remember my lord grey, says he, by god, if they do attempt any such thing, it can't fail. we were in great anxiety of mind, till we heard the king's coach was come in, and sir thomas armstrong not being there, we apprehended that he was to be one of the party (for he was not there). this failing, it was then next determined (which was the last alarum and news i had of it), to be done upon the th of november, the anniversary of queen elizabeth; and i remember it by this remark i made myself, that i feared it had been discovered, because i saw a proclamation a little before forbidding public bonfires without leave of my lord mayor. it made some impressions upon me that i thought they had got an intimation of our intention, and had therefore forbid that meeting. this therefore of the th of november being also disappointed, and my lord shaftesbury, being told things were not ripe, in the country, took shipping and got away: and from that time i heard no more of him till i heard he was dead. now, sir, after this, we all began to lie under the same sense and apprehensions that my lord shaftesbury did, that we had gone so far, and communicated it to so many, that it was unsafe to make a retreat; and this being considered, it was also considered, that so great an affair as that was, consisting of such infinite particulars, to be managed with so much fineness, and to have so many parts, it would be necessary, that there should be some general council, that should take upon them the care of the whole. upon these thoughts we resolved to erect a little cabal among ourselves, which did consist of six persons; and the persons were the duke of monmouth, my lord of essex, my lord russell, mr. hambden junr., algernone sidney, and myself. attorney-general--about what time was this, when you settled this council? lord howard--it would have been proper for me in the next place to tell you that, and i was coming to it. this was about the middle of jan. last (as near as i can remember); for about that time we did meet at mr. hambden's house. attorney-general--name those that met. lord howard--all the persons i named before; that was the duke of monmouth, my lord of essex, my lord russell, col. sidney; mr. hambden junr., and myself; when we met there, it was presently agreed what their proper province was, which was to have a care of the whole; and therefore it was necessary some general things should fall under our care and conduct which could not possibly be conducted by individual persons. the things that did principally challenge this care, we thought were these: whether the insurrection was most proper to be begun in london, or in the country, or both at one instant. this stood upon several different reasons: it was said in the country; and i remember the duke of monmouth insisted upon it, that it was impossible to oppose a formed, well-methodized and governed force, with a rabble hastily got together; and therefore whatever number could be gathered in the city, would be suppressed quickly, before they could form themselves: therefore it would be better to begin it at such a distance from the town, where they might have an opportunity of forming themselves, and would not be subject to the like panic fear, as in the town, where half an hour would convey the news to those forces that in another half hour would be ready to suppress them. it was further suggested that if the meeting was remote from london, the king must either give an opportunity for a rising there by withdrawing troops, or else give the insurgents time to gather head. other questions discussed were what counties and towns were the fittest for action, what arms were necessary, how the £ , or £ , which the duke of monmouth considered necessary for the rising were to be raised; lastly and chiefly how to 'order it, as to draw scotland into a consent with us.' another meeting was held ten days afterwards at lord russell's, when the same persons were present. it was then decided to send messengers to lord argyle 'to settle an understanding with him, and others to invite to england persons' that were judged most able to understand the state of scotland, and give an account of it. aaron smith[ ] was accordingly sent to sir john cochram[ ], lord melvile[ ], and sir ---- campbell, and received sixty guineas from algernon sidney for his expenses. it was agreed that the conspirators should not meet together again till aaron smith's return. his absence for a month caused some apprehensions; 'but if his letters had miscarried, it could have done no great hurt, for it carried only a kind of cant in it; it was under the disguise of a plantation in carolina.' attorney-general--you are sure my lord russell was there? lord howard--yes, sir; i wish i could say he was not. attorney-general--did he sit there as a cypher? what did my lord say? lord howard--every one knows my lord russell is a person of great judgment, and not very lavish in discourse. serjeant jeffreys--but he did consent? lord howard--we did not put it to the vote, but it went without contradiction, and i took it that all there gave their consent. solicitor-general--the raising of money you speak of, was that put into in any way? lord howard--no, but every man was to put themselves upon thinking of such a way, that money might be collected without administering jealousy. attorney-general--were there no persons to undertake for a fund? lord howard--no, i think not. however it was but opinion, the thing that was said was jocosely, rather than anything else, that my lord of essex had dealing in money, and therefore he was thought the most proper person to take care of those things; but this was said rather by way of mirth, than otherwise. howard then withdrew to essex to see after some private affairs; on returning to town he heard that smith had returned with sir john cochram but did not see them. he then went to bath and had nothing more to do with the conspiracy. lord chief-justice--my lord russell, now if your lordship pleases, is the time for you to ask him any questions. lord russell--the most he hath said of me, my lord, is only hearsay; the two times we met, it was upon no formed design, only to talk of news, and talk of things in general. lord chief-justice--but i will tell you what it is he testifies, that comes nearest your lordship, that so you may consider of it, if you will ask any questions. he says after my lord shaftesbury went off (all before is but inducement, as to anything that concerns your lordship, and does not particularly touch you; after his going away he says) the party concerned with my lord shaftesbury did think fit to make choice of six persons to carry on the design of an insurrection or rising, as he calls it, in the kingdom; and that to that purpose, choice was made of the duke of monmouth, my lord of essex, your lordship, my lord howard, colonel sidney, and mr. hambden. lord russell--pray my lord, not to interrupt you, by what party (i know no party) were they chosen? lord howard--it is very true, we were not chosen by community, but did erect ourselves by mutual agreement, one with another, into this society. lord russell--we were people that did meet very often. lord chief-justice--will your lordship please to have any other questions asked of my lord howard? lord russell--he says it was a formed design, when we met about no such thing. lord chief-justice--he says that you did consult among yourselves, about the raising of men, and where the rising should be first, whether in the city of london, or in more foreign parts, that you had several debates concerning it; he does make mention of some of the duke of monmouth's arguments for its being formed in places from the city; he says you did all agree, not to do anything further in it, till you had considered how to raise money and arms: and to engage the kingdom of scotland in this business with you, that it was agreed among you that a messenger should be sent into the kingdom of scotland. thus far he goes upon his own knowledge, as he saith; what he says after, of sending a messenger, is by report only. attorney-general--i beg your pardon, my lord. lord chief-justice--it is so, that which he heard concerning the sending of aaron smith. attorney-general--will you ask him any questions? lord russell--we met, but there was no debate of any such thing, nor putting anything in method. but my lord howard is a man that hath a voluble tongue, talks very well, and is full of discourse, and we were delighted to hear him. attorney-general--i think your lordship did mention the campbells? lord howard--i did stammer it out, but not without a parenthesis, it was a person of the alliance, and i thought of the name of the argyles. _atterbury_ was called, and swore that sir hugh campbell was in his custody; was captured 'making his escape out of a woodmonger's house, both he and his son'; he owned that he had been in london four days, and that he and his son and bailey came to town together. _west[ ] was then called and sworn._ attorney-general--that which i call you to, is to know whether or no, in your managery of this plot, you understand any of the lords were concerned, and which. mr. west--my lord, as to my lord russell, i never had any conversation with him at all, but that i have heard this, that in the insurrection in november, mr. ferguson and colonel rumsey did tell me that my lord russell intended to go down and take his post in the west, when mr. trenchard had failed them. lord chief-justice--what is this? attorney-general--we have proved my lord privy to the consults; now we go about to prove the under-actors did know it. west--they always said my lord russell was the man they most depended upon, because he was a person looked upon as of great sobriety. lord russell--can i hinder people from making use of my name? to have this brought to influence the gentlemen of the jury, and inflame them against me, is hard. lord chief-justice--as to this, the giving evidence by hearsay will not be evidence; what colonel rumsey, or mr ferguson told mr. west, is no evidence. attorney-general--it is not evidence to convict a man, if there were not plain evidence before; but it plainly confirms what the other swears: but i think we need no more. jeffreys--we have evidence without it, and will not use anything of garniture; we will leave it as it is, we won't trouble your lordship any further. i think, mr. attorney, we have done with our evidence. the lord chief-justice then recapitulated the evidence given against lord russell, dwelling particularly on the traitorous character of rumsey's message, russell's privity to trenchard's rising, the alleged written declaration, and the consultations as to the best method of effecting a rising, and finally called on lord russell to make his defence. lord russell--my lord, i cannot but think myself mighty unfortunate, to stand here charged with so high and heinous a crime, and that intricated and intermixed with the treasons and horrid practices and speeches of other people, the king's counsel taking all advantages, and improving and heightening things against me. i am no lawyer, a very unready speaker, and altogether a stranger to things of this nature, and alone, and without counsel. truly, my lord, i am very sensible, i am not so provided to make my just defence, as otherwise i should do. but, my lord, you are equal, and the gentlemen of the jury, i think, are men of consciences; they are strangers to me, and i hope they value innocent blood, and will consider the witnesses that swear against me, swear to save their own lives; for howsoever legal witnesses they may be accounted, they can't be credible. and for col. rumsey, who it is notoriously known hath been so highly obliged by the king, and the duke, for him to be capable of such a design of murdering the king, i think nobody will wonder, if to save his own life, he will endeavour to take away mine; neither does he swear enough to do it; and then if he did, the time by the th of this king, is elapsed, it must be as i understand by the law, prosecuted within six months; and by the edw. iii. a design of levying war is no treason, unless by some overt-act it appear.[ ] and, my lord, i desire to know, what statute i am to be tried upon; for generals, i think, are not to be gone upon in these cases. the _attorney-general_ replies that they are proceeding under the statute of edward iii.; that he does not contend that a design to levy war is treason, but to prepare forces to fight against the king is a design within the statute to kill the king; 'to design to depose the king, to imprison the king, to raise the subjects against the king, these have been settled by several resolutions to be within that statute, and evidences of a design to kill the king.'[ ] a man cannot be convicted of treason by one witness only, but several witnesses to several acts which manifest the same treason are sufficient. jeffreys--if my lord will call his witnesses---- lord russell--this is tacking of two treasons together; here is one in november by one witness, and then you bring in another with a discourse of my lord howard, and he says the discourse passed for pleasure. the lord chief-justice and jeffreys point out that it has been settled that the two witnesses required in treason may be witnesses to different acts, and that if lord russell admits the facts his counsel may be heard on the point of law. lord chief-justice--my lord, to hear your counsel concerning this fact, that we cannot do, it was never done, nor will be done. if your lordship doubts whether this fact is treason or not, and desires your counsel may be heard to that, i will do it. solicitor-general--will your lordship please to call any witness to the matter of fact? lord russell--it is very hard a man must lose his life upon hearsay. colonel rumsey says he brought a message which i will swear i never heard nor knew of. he does not say he spake to me, or i gave him any answer. mr. sheppard remembers no such thing; he was gone to and again. here is but one witness, and seven months ago. attorney-general--my lord, if there is anything that is law, you shall have it lord russell--my lord, colonel rumsey, the other day before the king [the information of rumsey is signed by the duke of abermarle and sir leoline jenkins, secretary of state] could not say that i heard it, i was in the room, but i came in late, they had been there a good while; i did not stay above a quarter of an hour tasting sherry with mr. sheppard. here some of the judges desired that edw. iii. c. should be read, which was done. the material parts of it declare 'that whereas divers opinions have been before this time, in what case treason shall be said, and in what not ... when a man doth compass or imagine the death of our lord the king ... or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be provable attainted of open deed by people of their condition,' it is treason. on this the point of law is re-discussed with the same result as before. lord russell--i do not know how to answer it. the points methinks must be quite otherwise, that there should be two witnesses to one thing at the same time. attorney-general--your lordship remembers, in my lord stafford's case, there was but one witness to one act in england, and another to another in france. lord russell--it was to the same point. attorney-general--to the general point, the lopping point. lord russell--i can prove i was out of town when one of these meetings was; but mr. sheppard cannot recollect the day, for i was out of town all that time. i never was but once at mr. sheppard's and there was nothing undertaken of viewing the guards while i was there. col. rumsey, can you swear positively, that i heard the message, and gave any answer to it? lord chief-justice (to col. rumsey)--sir, did my lord russell hear you when you delivered the message to the company? were they at the table, or where were they? colonel rumsey--when i came in they were standing at the fireside; but they all came from the fireside to hear what i said. lord russell--col. rumsey was there when i came in. colonel rumsey--no, my lord. the duke of monmouth and my lord russell went away together; and my lord grey, and sir thomas armstrong. lord russell--the duke of monmouth and i came together, and you were standing at the chimney when i came in; you were there before me. my lord howard hath made a long narrative here of what he knew. i do not know when he made it, or when he did recollect anything; 'tis but very lately, that he did declare and protest to several people, that he knew nothing against me, nor of any plot i could in the least be questioned for. lord chief-justice--if you will have any witnesses called to that, you shall, my lord. lord russell--my lord anglesey, and mr. edward howard. my lord anglesey stood up. lord chief-justice--my lord russell, what do you ask my lord anglesey? lord russell--to declare what my lord howard told him about me, since i was confined. lord anglesey--my lord, i chanced to be in town the last week; and hearing my lord of bedford was in some distress and trouble concerning the affliction of his son, i went to give him a visit, being my old acquaintance, of some years' standing, i believe; for my lord and i were bred together at maudlin college in oxon; i had not been there but a very little while, and was ready to go away again, after i had done the good office i came about; but my lord howard came in, i don't know whether he be here. lord howard--yes, here i am to serve your lordship. lord anglesey--and sat down on the other side of my lord of bedford, and he began to comfort my lord; and the arguments he used for his comfort, were, my lord, you are happy in having a wise son, and a worthy person, one that can never sure be in such a plot as this, or suspected for it, and that may give your lordship reason to expect a very good issue concerning him. i know nothing against him, or any body else, of such a barbarous design, and therefore your lordship may be comforted in it. i did not hear this only from my lord howard's mouth, but at my own home on the monday after, for i used to go to totteridge for fresh air; i went down on saturday, this happened to be on friday (my lord being here, i am glad, for he cannot forget this discourse); and when i came to town on monday i understood that my lord howard upon that very sunday had been church with my lady chaworth. my lady has a chaplain it seems that preaches there and does the offices of the church; but my lady came to me in the evening. this i have from my lady---- lord chief-justice--my lord, what you have from my lady is no kind of evidence at all. lord anglesey--i don't know what my lord is, i am acquainted with none of the evidence, nor what hath been done; but my lady chaworth came to me, and acquainted me there was some suspicion---- jeffreys--i don't think it fit for me to interrupt a person of your honour, my lord, but your lordship knows in what place we stand here: what you can say of anything you heard of my lord howard, we are willing to hear, but the other is not evidence. as the court will not let us offer hearsays, so neither must we that are for the king permit it. lord anglesey--i have told you what happened in my hearing. _mr. howard_ was then called, and after describing steps he took to prevail on lord howard to come over to the king's side, when 'i sometimes found my lord very forward and sometimes softened him'; and continuing-- lord chief-justice--pray apply yourself to the matter you are called for. mr. howard--this it may be is to the matter, when you have heard me: for i think i know where i am, and what i am to say. lord chief-justice--we must desire you not to go on thus. mr. howard--i must satisfy the world, as well as i can, as to myself, and my family, and pray do not interrupt me. after this, my lord, there never passed a day for almost---- lord chief-justice--pray speak to this matter. howard--sir, i am coming to it. lord chief-justice--pray, sir, be directed by the court. howard--then now, sir, i will come to the thing. upon this ground i had of my lord's kindness, i applied myself to my lord in this present issue, on the breaking out of this plot. my lord, i thought certainly, as near as i could discern him (for he took it upon his honour, his faith, and as much as if he had taken an oath before a magistrate), that he knew nothing of any man concerned in this business, and particularly of my lord russell, whom he vindicated with all the honour in the world. my lord, it is true, was afraid of his own person, and as a friend and a relation i concealed him in my own house, and i did not think it was for such a conspiracy, but i thought he was unwilling to go to the tower for nothing again;[ ] so that if my lord has the same soul on monday, that he had on sunday, this cannot be true, that he swears against my lord russell. lord russell--call dr. burnet.[ ] lord russell--pray, dr. burnet, did you hear anything from my lord howard, since the plot was discovered, concerning me? dr. burnet--my lord howard was with me the night after the plot broke out, and he did then, as he had done before, with hands and eyes lifted up to heaven, say he knew nothing of any plot, nor believed any; and treated it with scorn and contempt. lord howard--my lord, may i speak for myself? jeffreys--no, no, my lord, we don't call you. lord chief-justice--will you please to have any other witnesses called? lord russell--there are some persons of quality that i have been very well acquainted and conversed with. i desire to know of them, if there was anything in my former carriage to make them think me like to be guilty of this? my lord cavendish. lord cavendish--i had the honour to be acquainted with my lord russell a long time. i always thought him a man of great honour, and too prudent and wary a man to be concerned in so vile and desperate a design as this, and from which he would receive so little advantage; i can say nothing more, but that two or three days since the discovery of this plot upon discourse about col. rumsey my lord russell did express something, as if he had a very ill opinion of the man, and therefore it is not likely he would entrust him with such a secret. lord russell--dr. tillotson.[ ] lord chief-justice--what questions would you ask him, my lord? lord russell--he and i happened to be very conversant. to know whether he did ever find anything tending to this in my discourse. lord chief-justice--my lord calls you as to his life, and conversation and reputation. dr. tillotson--my lord, i have been many years last past acquainted with my lord russell, i always judged him a person of great virtue and integrity, and by all the conversation and discourse i ever had with him, i always took him to be a person very far from any such wicked design he stands charged with. lord russell--dr. burnet, if you please to give some account of my conversation. dr. burnet--my lord, i have had the honour to be known to my lord russell several years, and he hath declared himself with much confidence to me, and he always upon all occasions expressed himself against all risings; and when he spoke of some people would provoke to it, he expressed himself so determined against that matter that i think no man could do more. _dr. thomas cox_ was then called and said that having seen a great deal of lord russell during the six weeks 'before this plot came out,' he had always found him against all kind of risings; he expressed distrust of rumsey. he said, for my lord howard, he was a man of excellent parts, of luxuriant parts, but he had the luck not to be much trusted by any party. the _duke of somerset_ spoke shortly as to lord russell's honour, loyalty, and justice. foreman of the jury--the gentlemen of the jury desire to ask my lord howard something upon the point my lord anglesey testified, and to know what answer he makes to lord anglesey. lord chief-baron--my lord, what say you to it, that you told his father that he was a discreet man, and he needed not to fear his engagement in any such thing? lord howard--my lord, if i took it right my lord anglesey's testimony did branch itself into two parts, one of his own knowledge, and the other by hearsay; as to what he said of his own knowledge, when i waited upon my lord of bedford, and endeavoured to comfort him concerning his son, i believe i said the words my lord anglesey has given an account of, as near as i can remember, that i looked upon his lordship as a man of that honour, that i hoped he might be secure, that he had not entangled himself in anything of that nature. my lord, i can hardly be provoked to make my own defence, lest this noble lord should suffer, so willing i am to serve my lord, who knows i cannot want affection for him. my lord, i do confess i did say it; for your lordship well knows under what circumstances we were: i was at that time to outface the thing, both for myself and my party, and i did not intend to come into this place, and act this part. god knows how it is brought upon me, and with what unwillingness i do sustain it; but my duty to god, the king, and my country requires it; but i must confess i am very sorry to carry it on thus far. my lord, i do confess i did say so, and if i had been to visit my lord pemberton, i should have said so. there is none of those that know my lord russell, but would speak of my lord russell, from those topics of honour, modesty and integrity, his whole life deserves it. and i must confess that i did frequently say, there was nothing of truth in this, and i wish this may be for my lord's advantage. my lord, will you spare me one thing more, because that leans hard upon my reputation; and if the jury believe that i ought not to be believed, for i do think the religion of an oath is not tied to a place, but receives its obligation from the appeal we therein make to god, and, i think, if i called god and angels to witness to a falsehood, i ought not to be believed now; but i will tell you as to that; your lordship knows that every man that was committed, was committed for a design of murdering the king; now i did lay hold on that part, for i was to carry my knife close between the paring and the apple; and i did say that if i were an enemy to my lord russell, and to the duke of monmouth, and were called to be a witness, i must have declared in the presence of god and man, that i did not believe either of them had any design to murder the king. i have said this, because i would not walk under the character of a person that would be perjured at the expense of so noble a person's life, and my own soul. _lord clifford_, _mr. suton gore_, _mr. spencer_, and _dr. fitz-williams_ then all gave evidence as to lord russell's character in general terms. lord chief-justice--my lord, does your lordship call any more witnesses? lord russell--no, my lord, i will be very short. i shall declare to your lordship, that i am one that have always had a heart sincerely loyal and affectionate to the king, and the government the best government in the world. i pray as sincerely for the king's happy and long life as any man alive; and for me to go about to raise a rebellion, which i looked upon as so wicked and unpracticable, is unlikely. besides, if i had been inclined to it, by all the observation i made in the country, there was no tendency to it. what some hot-headed people have done there, is another thing. a rebellion cannot be made now as it has been in former times; we have few great men. i was always for the government, i never desired anything to be redressed, but in a parliamentary and legal way, i have always been against innovations and all irregularities whatsoever; and shall be as long as i live, whether it be sooner or later. gentlemen, i am now in your hands eternally, my honour, my life, and all; and i hope the heats and animosities that are amongst you will not so bias you, as to make you in the least inclined to find an innocent man guilty. i call to witness heaven and earth, i never had a design against the king's life, in my life, nor never shall have. i think there is nothing proved against me at all. i am in your hands. god direct you. the _solicitor-general_ then proceeds to sum up the case against lord russell. the treason alleged against the prisoner is conspiring the death of the king; the overt act proving the conspiracy is the assembling in council to raise arms against the king and raise a rebellion here. rumsey was sent by shaftesbury to sheppard's house to ask for news of trenchard's rising at taunton; the message was delivered in russell's presence and an answer was given as from them all that they were disappointed there, and were not ready to rise. monmouth, grey, and armstrong went out to inspect the guards and reported that it was feasible to surprise them. russell was present and discussed a rising with the rest; the rising was to be on the th of november. sheppard speaks to ferguson engaging his rooms on behalf of monmouth; there was consequently a private meeting there which russell attended. he confirms rumsey as to the inspecting of the guards, and speaks to the reading of a paper, though he does not say that russell was there when it was read. lord howard 'gives you an account of many things, and many things that he tells you are by hearsay. but i cannot but observe to you that all this hearsay is confirmed by these two positive witnesses.' shaftesbury told howard of the disappointment he had met with from noble persons who would not join with him; howard went from shaftesbury to monmouth to expostulate with him; 'and monmouth said he had always told him (? howard or shaftesbury) he would not engage at that time.' this, says the solicitor-general, is confirmed by rumsey's account of the delivery of his message. then follows the abandonment of the rising on the th of november in consequence of the proclamation forbidding the usual rejoicings on that occasion, and shaftesbury's departure, leading to the formation of the committee of six, of whom lord russell was one, and who at one meeting discussed the proper place for the rising and at another how best to obtain assistance from scotland. lord russell states that he only came to sheppard's house by accident, about some other business, but he came with monmouth, and monmouth came by appointment. surely this designed and secret meeting must have been intended for the purposes for which it was used. lord russell objects that this evidence proves no more than a conspiracy to levy war, which is not treason within edw. iii., and though it is treason within car. ii., that statute does not apply because the prosecution has not taken place within six months of the offence. but the case is one of high treason under edw. iii., because 'to conspire to levy war, is an overt-act to testify the design of the death of the king'; as to which see lord cobham's case, jac.[ ] a conspiracy to levy war against the king's person tends to seizing the king, which has always been taken to be treason. it may be different in the case of a conspiracy to levy war by such an act as overthrowing all inclosures (which is levying war), which by construction only is against the king, but such cases are to be distinguished from the levying of war against the king himself; see the case of dr. story. as was seen in plunket's[ ] case, to invite a foreign invasion is to conspire the death of the king. coke, in the passage before that relied on by lord russell, admits that this is the law. when coke says that to levy war is not an overt act for compassing the death of the king (that is, is not evidence of such an intention), sir henry vane's case shows he is wrong. as to the killing of the king, i am apt to think that was below the honour of the prisoner at the bar ... but this is equal treason; if they designed only to bring the king into their power, till he had consented to such things as should be moved in parliament, it is equally treason as if they had agreed directly to assassinate him. lord howard, it is true, testified repeatedly to lord russell's innocence, but was not this the best way of concealing his own guilt? surely dr. burnet would look on himself as the last person to whom conspirators would confess their crimes. _jeffreys_ followed, recapitulating a few of the facts, but adding nothing to the solicitor-general's argument. lord chief-justice--gentlemen of the jury, the prisoner at the bar stands indicted before you of high treason in compassing and designing the death of the king, and declaring of it by overt-acts endeavouring to raise insurrections, and popular commotions, in the kingdom here. to this he hath pleaded, not guilty. you have heard the evidence that hath been against him; it hath been at large repeated by the king's counsel which will take off a great deal of my trouble in repeating it again. i know you cannot but take notice of it, and remember it, it having been stated twice by two of the king's counsel to you; 'tis long, and you see what the parties here have proved. there is first of all col. rumsey, he does attest a meeting at mr. sheppard's house, and you hear to what purpose he says it was; the message that he brought, and the return he had; it was to enquire concerning a rising at taunton; and that he had in return to my lord shaftesbury was, that mr. trenchard had failed them, and my lord must be contented; for it could not be that time. you hear that he does say, that they did design a rising; he saith there was a rising designed in november, i think he saith the seventeenth, upon the day of queen elizabeth's birth.[ ] you hear he does say there was at that meeting some discourse concerning inspecting the king's guards, and seeing how they kept themselves, and whether they might be surprised, and this he says was all in order to a rising. he says, that at this my lord russell was present. mr. sheppard does say, that my lord russell was there; that he came into this meeting with the duke of monmouth and he did go away with the duke of monmouth he believes. he says there was some discourse of a rising or insurrection that was to be procured within the kingdom: but he does not tell you the particulars of any thing, he himself does not. my lord howard afterwards does come and tell you of a great discourse he had with my lord shaftesbury, in order to a rising in the city of london; and my lord shaftesbury did value himself mightily upon , men he hoped to raise; and a great deal of discourse, he had with my lord shaftesbury. this he does by way of inducement to what he says concerning my lord russell. the evidence against him is some consults that there were by six of them, who took upon them, as he says, to be a council for the management of the insurrection, that was to be procured in this kingdom. he instances in two that were for this purpose, the one of them at mr. hambden's house, the other at my lord russell's house. and he tells you at these meetings, there was some discourse of providing treasure, and of providing arms; but they came to no result in these things. he tells you that there was a design to send for some of the kingdom of scotland, that might join with them in this thing. and this is upon the matter, the substance of the evidence, that hath been at large declared to you by the king's counsel, and what you have heard. now gentlemen, i must tell you some things it lies upon us to direct you in. my lord excepts to these witnesses, because they are concerned, by their own shewing, in this design. if there were any, i did direct (some of you might hear me) yesterday, that that was no sufficient exception against a man's being an evidence in the case of treason, that he himself was concerned in it; they are the most proper persons to be evidence, none being able to detect such counsels but them. you have heard my lord russell's witnesses that he hath brought concerning them, and concerning his own integrity and course of life, how it has been sober and civil, with a great respect to religion, as these gentlemen do all testify. now the question before you will be, whether upon this whole matter you do believe my lord russell had any design upon the king's life, to destroy the king, or take away his life, for that is the material part here. it is used and given you (by the king's counsel) as an evidence of this, that he did conspire to raise an insurrection, and to cause a rising of the people, to make as it were a rebellion within the nation, and to surprise the king's guards, which, say they, can have no other end, but to seize and destroy the king; and 'tis a great evidence (if my lord russell did design to seize the king's guards, and make an insurrection in the kingdom) of a design to surprise the king's person. it must be left to you upon the whole matter: you have not evidence in this case as there was in the other matter that was tried in the morning or yesterday,[ ] against the conspirators to kill the king at the rye. there was a direct evidence of a consult to kill the king, that is not given you in this case: this is an act of contriving rebellion, and an insurrection within the kingdom, and to seize his guards, which is urged an evidence, and surely is in itself an evidence, to seize and destroy the king. upon this whole matter, this is left to you. if you believe the prisoner at the bar to have conspired the death of the king and in order to that, to have had these consults, that these witnesses speak of, then you must find him guilty of this treason that is laid to his charge. then the court adjourned till four o'clock in the afternoon, when the jury brought the said lord russell in guilty of the said high treason. on july th lord russell was brought up before the recorder for sentence, and, demanding to have the indictment read, pleaded that no intention to kill the king had been proved. the recorder, however, pointed out that the point had already been taken, and that he was bound by the verdict of the jury. he then condemned the prisoner in the usual way to be drawn, hanged, and quartered. this sentence was commuted to beheading, and was carried out on st july. lord russell was accompanied from newgate to lincoln's inn fields, where the execution took place, by tillotson and burnet. he spoke a few words on the scaffold, expressing his affection for the protestant religion, and denying knowledge of any plot against the king's life, or the government. he left a paper of considerable interest from a general point of view justifying his action in relation to the popish plot and the exclusion bill. as to his trial, he asserts that he never saw sheppard but once, and then there was no undertaking as to seizing the guards and no one appointed to view them. it may have been discoursed of then and at other times, but he never consented to it, and once at shaftesbury's he strongly protested against it. he had an intention to try some sherry when he went to sheppard's; but when he was in town the duke of monmouth came to me and told me he was extremely glad i had come to town, for my lord shaftesbury and some hot men would undo us all, if great care be not taken; and therefore for god's sake use your endeavours with your friends to prevent anything of this kind. he told me there would be company at mr. sheppard's that night, and desired me to be at home in the evening, and he would call me, which he did: and when i came into the room i saw mr. rumsey by the chimney, although he swears he came in after; and there were things said by some with much more heat than judgment, which i did sufficiently disapprove, and yet for these things i stand condemned. it is, i know, inferred from thence, and was pressed to me, that i was acquainted with these heats and ill designs, and did not discover them; but this is but misprision of treason at most. so i die innocent of the crime i stand condemned for, and i hope nobody will imagine, that so mean a thought could enter into me, as to go about to save myself by accusing others; the part that some have acted lately of that kind has not been such as to invite me to love life at such a rate.... i know i said but little at the trial, and i suppose it looks more like innocence than guilt. i was also advised not to confess matter of fact plainly, since that must certainly have brought me within the guilt of misprision[ ]. and being thus restrained from dealing frankly and openly, i chose rather to say little, than to depart from ingenuity, that by the grace of god i had carried along with me in the former parts of my life; so could easier be silent, and leave the whole matter to the conscience of the jury, than to make the last and solemnest part of my life so different from the course of it, as the using little tricks and evasions must have been. lord russell's attainder was reversed by a private act of will. and mary on the ground that the jury were not properly returned, that his lawful challenges to them for want of freehold were refused, and that he was convicted 'by partial and unjust constructions of the law.' footnotes: [ ] sir francis pemberton was born , entered emmanuel college , entered the inner temple , was called , was made a bencher , a serjeant , and was imprisoned by the house of commons for an alleged breach of privilege in the same year. he was made a judge of the king's bench in , and took part as such in several trials connected with the popish plot; he was discharged in , returned to the bar, and replaced scroggs as chief-justice of the king's bench in . he was moved to the common pleas in , to allow sir edmund saunders, who had advised in the proceedings against the city of london, to act as judge in the case. he was dismissed from his office of judge in the same year, about five weeks after lord russell's trial. returning to the bar, he helped to defend the seven bishops, but was imprisoned by the convention parliament for a judgment he had given six years before against topham, the serjeant-at-arms, who had claimed to be without his jurisdiction. he bore on the whole a high character for independence and honesty; and it is curious to learn that he lived to advise the earl of bedford whether lord russell's attainder would prevent his son succeeding to the earldom. [ ] sir robert sawyer was born in , entered magdalene college, cambridge, in , where he was chamber-fellow with pepys, joined the inner temple and went the oxford circuit. he was elected to the house of commons for chipping wycombe in , and assisted in drafting the exclusion bill. he appeared for the crown in most of the state trials of this period. he afterwards led in the defence of the seven bishops, took part in the convention parliament, and was expelled from the house on account of his conduct in armstrong's case. he was re-elected and became chief-justice of the king's bench in , and died in . [ ] heneage finch, first earl of aylesford, was born about : he was educated at westminster and christ church. he entered the inner temple, became solicitor-general in , being elected to the house of commons for the university of oxford in the same year. he was deprived of office in , and defended the seven bishops. he sat in the house of commons in , in all parliaments from the convention parliament ( ) till he became a peer in , under the title of baron guernsey. he was made earl of aylesford on the accession of george i. ( ), and died in . [ ] see vol. i. p. . [ ] francis north, lord guilford ( - ), the third son of the fourth lord north, was educated at various presbyterian schools and st. john's college, cambridge. he was called to the bar in , and with the help of the attorney-general, sir geoffrey palmer, soon acquired a large practice. after holding various provincial posts, he became solicitor-general in . he entered parliament in , and became attorney-general the same year, becoming chief-justice of the common pleas in . he always strongly supported charles ii.'s government, temporising during the popish plot, and being chiefly responsible for the execution of colledge. he became lord keeper in , and was raised to the peerage in : but during his tenure of office was much vexed by intrigues, particularly by the conduct of jeffreys, who had succeeded him in the common pleas. he is now chiefly remembered on account of the very diverting and interesting life of him written by his brother roger. [ ] pollexfen. see note in alice lisle's trial, vol. i. p. . [ ] sir john holt ( - ) was called to the bar in . he appeared for danby on his impeachment in , and was assigned to be counsel for lords powys and arundell of wardour, who were impeached for participation in the popish plot in , but against whom the proceedings were stopped after stafford's conviction. he appeared for the crown in several trials preceding that of lord russell, and having expressed an opinion in favour of the quo warranto proceedings against the city of london was appointed recorder, knighted, and called as a serjeant in . he was deprived of the recordership after a year on refusing to pass sentence of death on a deserter, a point which owed its importance to charles ii.'s attempts to create a standing army; but as he continued to be a serjeant, he was unable thenceforward to appear against the crown. he acted as legal assessor to the convention called after the flight of james ii., as a member of the house of commons took a leading part in the declaration that he had abdicated, and was made chief-justice in . [ ] this decision and unspecified 'partial and unjust constructions of law' were the professed ground on which russell's attainder was subsequently reversed: see _post_, p. . sir james stephen (_hist. crim. law_, vol. i. p. ) expresses an opinion that the law upon the subject at the time was 'utterly uncertain.' [ ] lord grey was the eldest son of the second baron grey of werk. he succeeded his father in : he voted for stafford's conviction, and was a zealous exclusionist. he was convicted of debauching his sister-in-law, lady henrietta berkeley, in , and consequently took no part in russell's plot. he was arrested in connection with the rye house plot, but escaped to holland, whence he returned to take part in monmouth's rising. he was captured after sedgemoor, but his life was spared on his being heavily fined and compelled to give evidence against his friends. he left england, but returned with william iii., during whose reign he filled several offices. he was created earl of tankerville in , and died in . [ ] lord howard, the third lord howard of escrick, was born about . he entered corpus college, cambridge. he served in cromwell's life-guards. as a sectary he seems to have favoured the restoration. he was committed to the tower for secret correspondence with holland in . after succeeding to the peerage he furthered the trial of his kinsman stafford. after giving evidence in this trial (see p. ), he gave similar evidence against algernon sidney, was pardoned, and died in obscurity at york in . [ ] the earl of essex was the son of the lord capel who was one of charles i.'s most devoted adherents and lost his life after his vain defence of colchester in . the younger lord capel was made earl of essex at the restoration. though opposed to the court party by inclination, he served on various foreign missions, and was lord-lieutenant of ireland from to . on his return to england he associated himself with the country party, and on danby's fall was placed at the head of the treasury commission, and thereafter followed halifax and sunderland in looking to the prince of orange for ultimate assistance rather than shaftesbury, who favoured the duke of monmouth. he left the treasury in , supported shaftesbury in on the exclusion bill, and appeared as a 'petitioner' at oxford in . he voted against stafford. he was arrested as a co-plotter with russell on howard's information, and committed suicide in the tower on the day of his trial (see p. ). [ ] algernon sidney ( - ) was the son of the second earl of leicester, and commanded a troop in the regiment raised by his father, when he was lord-lieutenant in ireland, to put down the irish rebellion of . he afterwards came over to england, joined the parliamentary forces, and was wounded at marston moor. he continued serving in various capacities, returning for a time to ireland with his brother, lord lisle, who was lord-lieutenant. he was appointed one of the commissioners to try charles i., but took no part in the trial. he was ejected from parliament in , and adopted a position of hostility to cromwell. he remained abroad after the restoration, though not excepted from the act of indemnity, and lived a philosophic life at rome and elsewhere. he tried to promote a rising against charles in holland in , and opened negotiations with louis xiv. during the french war. he returned to england in to settle his private affairs, and stayed on making friends with the leaders of the opposition, and vainly trying to obtain a seat in the house of commons. he quarrelled with shaftesbury, who denounced him as a french pensioner (which he probably was), and seems to have had no connection with his plots. he was arrested on th june, tried by jeffreys on th november, condemned, and executed on th december . [ ] john hampden ( - ) was the second son of richard hampden. after travelling abroad in his youth he became the intimate friend of the leaders of the opposition on his return to england in . he was arrested with them and tried in , when he was imprisoned on failing to pay an exorbitant fine. after monmouth's rising he was tried again for high treason. as lord grey was produced as a second witness against him, lord howard, who had testified before, being the first, he pleaded guilty, implicating russell and others by his confession. he was pardoned, and lived to sit in parliament after the revolution; but falling into obscurity failed to be elected for his native county in , and committed suicide. [ ] rumsey had been an officer in cromwell's army, and had served in portugal with distinction. he obtained a post by shaftesbury's patronage; and with west, a barrister, was responsible for the rye house plot. according to his own account, he was to kill the king, whilst walcot was to lead an attack on the guards. he appeared as a witness in the trials of walcot and algernon sidney, as well as in the present one. his last appearance before the public was as a witness against henry cornish, one of the leaders of the opposition of the city to the court party, whom he and one goodenough accused of participation in russell's plot, and who was tried and executed in . he had offered to give evidence against cornish before, in , but the second witness necessary to prove treason was not then forthcoming. the unsatisfactory nature of rumsey's evidence led to cornish's property being afterwards restored to his family, while, according to burnet, 'the witnesses were lodged in remote prisons for their lives.' cornish was arrested, tried and executed within a week. [ ] walcot was an irish gentleman who had been in cromwell's army. he frequented west's chambers, where he met west and rumsey, who were the principal witnesses against him. rumsey's story was that though walcot objected to killing the king, he promised to attack the guards. he was tried and convicted earlier on the same day. [ ] the following passages seem to give a true account of the measure of the complicity of russell and his friends with the rye house plot. [ ] aaron smith is first heard of as an obscure plotter in association with oates and speke. he was prosecuted in for supplying seditious papers to colledge, and sentenced to fine and imprisonment. he managed to escape, however, before sentence was pronounced, and was arrested in connection with the present trial, when, as nothing could be proved against him, he was sentenced for his previous offence. after the revolution he was appointed solicitor to the treasury; but failing to give a good account of various prosecutions which he set on foot, he was dismissed in . [ ] sir john cochram or cochrane was the second son of william cochrane, created earl of dundonald in . he escaped to holland at the time of russell's trial, took part in argyle's insurrection in , turned approver, and farmed the poll tax after the revolution, but was imprisoned in on failing to produce proper accounts. [ ] george melville was the fourth baron and the first earl of melville. he supported the royalist cause in scotland, and tried to induce a settlement with the covenanters before the battle of bothwell bridge. he escaped from england after the discovery of the rye house plot, and appeared at the court of the prince of orange. after the revolution he held high offices in scotland till the accession of anne, when he was dismissed. he died in . [ ] west was a barrister at whose chambers in the temple rumsey, ferguson, and other plotters used to meet, and it was alleged that the rye house plot was proposed: said by burnet to have been 'a witty and active man, full of talk, and believed to be a determined atheist.' [ ] as to what is treason under edward iii., see _post_, p. . under car. ii. c. it is treason, _inter alia_, to devise the deposition of the king; but the prosecution must be within six months of the commission of the offence. [ ] the question was, 'what is included in the expressions "imagine the king's death" and "levying war against the king"?' the attorney-general was evidently placing a gloss on them, which was perhaps justified from a wider point of view than a merely legal one. however that may be, the same process was continued till it culminated in the theory of 'constructive treason,' according to which it was laid down in that a man who intended to depose the king compassed and imagined his death. the matter was eventually decided in by a statute which made such an intent and others of the same kind treason of themselves. see further stephen's _history of criminal law_, vol. ii. pp. - . [ ] he had been twice sent to the tower: once in in consequence of the discovery of a secret correspondence with holland; once in on a false charge by edward fitzharris of writing the _true englishman_, a pamphlet advocating the deposition of charles ii. and the exclusion of the duke of york, which was in fact written by fitzharris, it is suggested with the purpose of imputing its authorship to the whigs. it is no doubt the second of these occasions that is referred to. [ ] burnet had at this time retired into private life, having lost the court favour which he had gained at an earlier period. he had been an intimate friend of stafford, and was living on terms of the closest intimacy with essex and russell at the time of their arrest. after russell's execution he left the country, and eventually found his way to the hague just before the revolution, where he performed services for william and mary requiring the utmost degree of confidence. he landed at torbay with william, soon became bishop of salisbury, and until the end of william's life remained one of his most trusted councillors. he retained a position of great influence under anne, and died in . in relation to his evidence in this case, it is interesting to read in his history that russell was privy to a plot for promoting a rebellion in the country and for bringing in the scotch. he says further: 'lord russell desired that his counsel might be heard to this point of seizing the guards; but that was denied unless he would confess the fact, and he would not do that, because as the witnesses had sworn it, it was false. he once intended to have related the whole fact just as it was; but his counsel advised him against it'; in fact russell admitted that he knew of a traitorous plot, and did not reveal it. 'he was a man of so much candour that he spoke little as to the fact; for since he was advised not to tell the whole truth, he could not speak against that which he knew to be true, though in some particulars it had been carried beyond the truth.' see too _post_, p. . [ ] john tillotson ( - ) was the son of a weaver of sowerby. he entered clare hall in , and became a a fellow of the same college in . he received an early bias against puritanism from chillingworth's _religion of protestants_, and his intercourse with cudworth and others at cambridge. he became tutor to the son of prideaux, cromwell's attorney-general in ; he was present at the savoy conference in , and remained identified with the puritans till the passing of the act of uniformity in ; afterwards he became curate of cheshunt in hertfordshire and rector of keddington in suffolk. in he was known as a celebrated preacher, and was appointed preacher in lincoln's inn. in and he preached sermons to the house of commons and the king respectively, exhorting the former to legislation against popery, and pointing out to the latter that whilst catholics should be tolerated, they should not be allowed to proselytise. he attended russell on the scaffold, and with burnet was summoned before the council on a suspicion of having helped to compose russell's published speech. he acquired great influence after the revolution; and having exercised the archiepiscopal jurisdiction of the province of canterbury during sancroft's suspension, became himself archbishop in . [ ] henry brooke, the eighth lord cobham, after losing court favour on the death of elizabeth, was accused in of plotting with aremberg, the spanish ambassador, to place arabella stuart on the throne, and to kill the king. his evidence contributed largely to the conviction of sir walter raleigh of the same treason, and he was tried and convicted the next day. he was kept in prison till , when he was allowed to go to bath on condition that he returned to prison; but he was struck by paralysis on his way back and died in . see vol. i. pp. - . [ ] oliver plunket ( - ) was roman catholic bishop of armagh and titular primate of ireland. he attained these positions in ; in he went into hiding when the position of the catholics in england drew attention to their presence in ireland. he was arrested, on a charge of complicity with the popish plot in , and eventually tried in the king's bench for treason in by sir francis pemberton, when the law was laid down as stated above. he was convicted, hung, beheaded and quartered. [ ] rumsey says the th, howard the th. the th was the anniversary of the queen's accession. [ ] thomas walcot and william hone, tried for and convicted of participation in the rye house plot. [ ] see _ante_, p. . the earl of warwick march , . about eleven of the clock the lords came from their own house into the court erected in westminster hall, for the trials of edward, earl of warwick and holland, and charles lord mohun[ ], in the manner following. the lord high steward's gentleman attendants, two and two. the clerks of the house of lords, with two clerks of the crown in the courts of chancery and king's bench. the masters of chancery, two and two. then the judges. the peers' eldest sons, and peers minors, two and two. four serjeants at arms with their maces, two and two. the yeoman usher of the house. then the peers, two and two, beginning with the youngest barons. then four serjeants at arms with their maces. then one of the heralds, attending in the room of garter, who by reason of his infirmity, could not be present. and the gentleman usher of the black rod, carrying the white staff before the lord high steward. then the lord chancellor, the lord high steward, of england, alone. when the lords were seated on their proper benches, and the lord high steward on the wool-pack; the two clerks of the crown in the courts of chancery and king's bench, standing before the clerk's table with their faces towards the state; the clerk of the crown in chancery having his majesty's commission to the lord high steward in his hands, made three reverences towards the lord high steward, and the clerk of the crown in chancery on his knees presented the commission to the lord high steward, who delivered it to the clerk of the crown in the king's bench (then likewise kneeling before his grace) in order to be opened and read; and then the two clerks of the crown making three reverences, went down to the table; and the clerk of the crown in the king's bench commanded the serjeant at arms to make proclamation of silence; which he did in this manner. serjeant-at-arms--o yes, o yes, o yes, my lord high steward his grace does straitly charge and command all manner of persons here present, to keep silence, and hear the king's majesty's commission to his grace my lord high steward of england directed, openly read, upon pain of imprisonment. then the lord high steward[ ] asked the peers to be pleased to stand up uncovered, while the king's commission was read. and the peers stood up, uncovered, and the king's commission was read in latin, by which it was set out that the grand jury of the county of middlesex had found a true bill of murder against the earl of warwick and lord mohun, which the peers were commissioned to try. proclamation that all persons there present should be uncovered, was then made, and the return of _certiorari_, bringing the indictment before the house of lords, was read in latin. order was then made that the judges might be covered, and the governor of the tower was ordered to produce the earl of warwick; and he was brought to the bar by the deputy-governor, having the axe carried before him by the gentleman gaoler, who stood with it at the bar, on the right hand of the prisoner, turning the edge from him. the lord high steward then informed the prisoner that he had been indicted of murder by the grand jury for the county of middlesex, on which indictment he would now be tried; and proceeded-- your lordship is called to answer this charge before the whole body of the house of peers as assembled in parliament. it is a great misfortune to be accused of so heinous an offence, and it is an addition to that misfortune, to be brought to answer as a criminal before such an assembly, in defence of your estate, your life, and honour. but it ought to be a support to your mind, sufficient to keep you from sinking under the weight of such an accusation, that you are to be tried before so noble, discerning, and equal judges, that nothing but your guilt can hurt you. no evidence will be received, but what is warranted by law; no weight will be laid upon that evidence, but what is agreeable to justice; no advantage will be taken of your lordship's little experience in proceedings of this nature; nor will it turn to your prejudice, that you have not the assistance of counsel in your defence, as to the fact (which cannot be allowed by law), and their lordships have already assigned you counsel if any matter of law should arise. after a little more to the same effect the indictment was read, first in latin, then in english, and the earl of warwick pleaded not guilty. the indictment was then opened by serjeant wright,[ ] to the effect that the prisoner was accused of murdering richard coote on the th of october, by stabbing him, together with lord mohun, richard french, roger james, and george dockwra. the _attorney-general_[ ] then opened the case, as follows:-- attorney-general--may it please your lordships, i am of counsel in this cause for the king against this noble lord, edward earl of warwick and holland, the prisoner at the bar, who stands indicted by the grand jury of the county of middlesex, has been arraigned, and is now to be tried before your lordships for the felonious killing and murdering of mr. coote, in the indictment named; the evidence to make good this charge against this noble lord, it comes to my turn to open to your lordships. my lords, the case, as to the fact, according to my instructions, is this: upon saturday, the th of october last, at night, my lord of warwick, my lord mohun, mr. french, mr. dockwra, and mr. coote, the unfortunate gentleman who was killed, met together at one locket's who kept the greyhound-tavern in the strand, and there they staid till it was very late; about twelve of the clock at night, or thereabouts, a messenger was sent by the company to fetch another gentleman, mr. james; and mr. james coming to them, in what condition your lordships will be told by the witnesses; about one of the clock in the morning, on sunday, the th of october, they all came down out of the room where they had been so late, to the bar of the house, and there, as the witnesses will tell your lordships, swords were drawn, and the chairs were called for, and two chairs which were nearest at hand came, and two of the company went into those chairs; who they were, and what past at that time, the witnesses will tell your lordships; those that got into those chairs came out again, and more chairs were called for. but i must acquaint your lordships, that my lord mohun, when the two gentlemen that went into the chairs ordered the chairmen to take them up, and carry them away, spoke to them to stop and go no further, for there should be no quarreling that night, and that he would send for the guards and secure them, and after this they came out of the chairs again; it will appear there were swords drawn amongst all of them, and some wounds given: more chairs being called for, and brought, this noble lord that is here at the bar, my lord of warwick, my lord mohun, and the other four gentlemen, went all into the chairs, and gave the chairmen directions, whither they should carry them, at leastwise the foremost had directions given them, and the rest were to follow them; it was a very dark night, but at last they came all to leicester-square; and they were set down a little on this side the rails of the square, and when the chairmen had set them down they went away; but immediately some of them heard my lord of warwick calling for a chair again, who came towards the rails, and there they found two of the gentlemen, that had been carried in some of the other chairs, holding up mr. coote between them, and would have had the chairmen carried him away to a surgeon's, but they found he was dying, and so would not meddle with him; afterwards my lord of warwick and mr. french were carried by two of the chairs to mr. amy's, the surgeon at the bagnio in long-acre, where mr. french being wounded, was taken care of particularly by the recommendation of my lord of warwick, and the master of the house was called up, it being very late; mr. coote's sword was brought to that place, but by whom it was brought we cannot exactly say. while my lord of warwick and captain french were there, and my lord of warwick had given orders for the denying of himself, and forbid the opening of the door, there came the other two gentlemen, mr. james and mr. dockwra, and upon their knocking at the door they were let in by my lord's order, after he had discovered who they were, looking through the wicket. mr. james had his sword drawn, but it was broken. my lord of warwick's hand was slightly wounded, and his sword bloody up to the hilt when he came in, as will be proved by the testimony of the servants in the house. there was a discourse between my lord, mr. james and mr. dockwra, about going into the country; but before they went, the swords were all called for to be brought to them, and upon enquiry, there was no blood found upon mr. french's sword, but a great deal upon my lord of warwick's, of which great notice was taken at that time. mr. coote, who was killed, had received one wound in the left side of his breast, half an inch wide, and five deep, near the collar bone; he had likewise another wound upon the left side of his body; both which your lordships will hear, in the judgment of the surgeon, were mortal wounds, and the evidence will declare the nature of them. my lords, the evidence does chiefly consist of, and depend on circumstances, the fact being done in the night, and none but the parties concerned being present at it; we shall lay the evidence before your lordships, as it is, for your judgment, and call what witnesses we have on behalf of the king, against this noble peer the prisoner at the bar, and take up your lordships' time no further in opening; and we shall begin with samuel cawthorne; he is a drawer at the tavern where those lords and gentlemen were together, and he will give you an account of the time they came there, how long they staid, what happened in the house during their being there, and what time they went away. lord high steward--give him his oath. (which the clerk did.) attorney-general--my lords, i doubt the witness is so far off, that it will be difficult for him to hear the questions that we are to ask him, unless we could have him nearer to us. lord high steward--mr. attorney, my lords seem to be of opinion that it will be more for your advantage and theirs that the witnesses stand at the distance they do; which will oblige you to raise your voice so loud, that they may hear the witnesses and you too. attorney-general--is your name samuel cawthorne? cawthorne--yes, my lord. attorney-general--where do you live? cawthorne--with mr. locket at charing-cross. attorney-general--did you live with him at the greyhound tavern in the strand the latter end of october last? cawthorne--yes, i did. attorney-general--well, pray will you acquaint my lords with the time when my lord of warwick, my lord mohun, and mr. coote were at that house, how long they stayed, what happened while they were there, and when they went away? cawthorne--it was saturday night, the th of october last. attorney-general--pray tell my lords the whole of your knowledge in the matter. cawthorne--there came my lord of warwick, my lord mohun, captain coote, capt. french, and captain dockwra, the th of october last, in the evening, to my master's house at the greyhound tavern in the strand. attorney-general--how long were they there, and what time of night came they in? cawthorne--about o'clock at night, my lord warwick, my lord mohun, capt. french, and capt. coote, came in. attorney-general--what day do you say it was? cawthorne--saturday, the th of october last. attorney-general--how long did they continue there? cawthorne--it was between one and two the next morning before they went away. attorney-general--was any body sent for to come to them there? cawthorne--yes, mr. james. attorney-general--what time was that? cawthorne--about twelve of the clock. attorney-general--did he stay with them till they went away? cawthorne--yes. attorney-general--what did you observe pass in the company while they were there? cawthorne--i did not observe any thing of quarrel, not so much as an angry word amongst them, till they came down to the bar and were going away; when they came down to the bar they ordered me to call them chairs, or coaches; and there were no coaches to be had, and so i went for chairs, and two chairs came; for the porter that went to call the coaches was a great while before he came back; and, as i said, i going for chairs, there came two; but that they said was not enough; so more chairs were called for, and at length there were more chairs gotten; in the first three chairs, my lord of warwick, my lord mohun, and captain coote went away in; and my lord warwick and my lord mohun bid the chairmen carry them home. attorney-general--were there then any other chairs at the door? cawthorne--there were two more chairs at the door, and another was called for. attorney-general--did you hear any directions given where they should carry them? cawthorne--my lord warwick and my lord mohun bid them carry them home. attorney-general--did you hear my lord warwick or my lord mohun particularly, and which, say whither they would be carried? cawthorne--i did hear my lord mohun say, captain coote should go and lie with him, or he would go and lie with capt. coote that night, for there should be no quarrelling. attorney-general--did they upon that go away? cawthorne--mr. french and mr. coote were in chairs before my lord mohun or my lord warwick, or any of the rest. attorney-general--what then happened upon their going into the chairs? cawthorne--my lord mohun came out to them and swore there should be no quarrel that night, but he would send for the guards and secure them. attorney-general--what happened then? cawthorne--upon that, both of them came out of their chairs and came into the house, and there they came to the bar three of them in the passage by the bar, and three of them behind that passage. attorney-general--pray, will you tell what did really pass throughout the whole transaction? what was done after they came in again into the house? cawthorne--after that, i was bid to call for six chairs, if i could get no coaches, and so i did; and when i had brought what chairs i could get, and returned to the bar i heard the swords clash; when the swords were drawn i cannot say, nor by whom, it might be by all the six, for aught i know, because i was in the street to call the chairs, and when i came back to the house, i was in hopes all had been quieted, for their swords were putting up: and when they went away in the chairs, i did hope they went away friendly. attorney-general--pray, how did they go away? who went together? cawthorne--my lord of warwick, my lord mohun, and captain coote went in the first three chairs, them three together, and bid the chairmen go home; the sixth chair was not then come. attorney-general--when that chair came, pray what directions were given to it? cawthorne--i did not hear them give the chairmen any directions at all. attorney-general--do you know any thing more that was done after this time? cawthorne--no, my lord, not after they went away; after i returned with the chairs, it was in two minutes' time that they went away. attorney-general--my lords, i suppose he knows no more of the matter. lord high steward--will you then ask him no more questions, mr. attorney? attorney-general--no, my lords, unless this noble lord shall ask him any questions, upon which we shall have occasion to examine him. lord high steward--my lord, has your lordship any questions to ask this witness? for now is your time, the king's counsel having done examining him. earl of warwick--i desire to ask him, whether i did not bid the chairmen go home? lord high steward--if your lordship please to propose your question to me, i will require an answer to it from the witness, and it will be the better heard by my lords. earl of warwick--my lord, i desire to know of this man, whether, when i went away in the chair from his master's house i did not bid the chairmen go home? lord high steward--witness, you hear my lord's question, what say you to it? cawthorne--yes; my lord of warwick did bid the chairmen go home. earl of warwick--my lord, i have another question to ask him. whether he knows of any quarrel there was between me and mr. coote at that time, or any other time; because we both used to frequent that house? cawthorne--no, my lords, i never heard any angry words between my lord warwick and mr. coote in my life. [then the lords towards the upper end of the house complaining that they did not hear his grace, the lord high steward was pleased to repeat the question thus:] lord high steward--when my lord of warwick bid the chairmen go home, or at any other time, did you observe that there had been any quarrel between his lordship and mr. coote? earl of warwick--my lord, i desire he may be asked, since we both used that house, whether that night, when i went away, or before or after, i had any quarrel with mr. coote? lord high steward--the question my lord desires you, that are the witness, to answer, is, whether you did hear any quarrelling or angry words to pass between my lord warwick and mr. coote that night before or after they came down, or when they went away, or at any other time? cawthorne--no, my lord, i never heard any angry words pass between them then, nor ever at any time before in all my life, but i always looked upon them to be very good friends. earl of warwick--i desire he may be asked, whether mr. coote did not come to that house in my company, and whether he did not frequently come to that house? cawthorne--yes; they used to be there every day almost, and they came that night together in company. earl of warwick--i desire he may be asked, whether i have not been frequently in his company there? cawthorne--yes; i say very frequently, every day almost, sometimes twice a-day. lord high steward--would your lordship ask him any other question? earl of warwick--my lord, i desire he may be asked this question, whether he knows of any particular kindness between mr. coote and me? lord high steward--do you know of any particular kindness between my lord warwick and mr. coote, the gentleman that was killed? cawthorne--yes, my lord, there was always a great kindness between them, as i observed: it ever was so, and i never heard angry words pass between them, but they were very good friends constantly; i waited upon them generally when they were at my master's house, which was every day almost. earl of warwick--i desire to know of this witness, whether he does not remember, or can name, some particular kindnesses that passed between mr. coote and me? lord high steward--can you specify any particular instances of kindness that passed between my lord warwick and mr. coote? cawthorne--yes; my lord of warwick used generally to pay the reckoning for mr. coote, and he did so at this time. earl of warwick--my lord, i desire he may be asked, between whom he apprehended the quarrel to be at this time? lord high steward--you say, friend, there were swords drawn and a quarrelling at the bar; can you tell between whom the quarrel was? cawthorne--my lord warwick, my lord mohun, and capt. coote, were all on one side, and the other three were on the other side. earl of warwick--who were the two persons that it was apprehended the quarrel was between? i desire he may be asked. lord high steward--you say, there were three on the one side, and three on the other; pray, between whom did you apprehend the quarrel to be? cawthorne--i believe the quarrel was between mr. coote and mr. french. earl of warwick--my lord, i desire to know of this witness, what words he heard mr. coote say after he and mr. french returned into the house and came out of the chairs. lord high steward--what do you say to the question my lord proposes? cawthorne--i heard mr. coote say, he would laugh when he pleased, and he would frown when he pleased, god damn him. earl of warwick--my lord, i desire to know, who he thinks those words were addressed to? lord high steward--to whom did mr. coote speak these words? cawthorne--whether he spoke them particularly to mr. french or to the other two gentlemen who were on the other side of the bar, i cannot directly tell. earl of warwick--i desire to know of him, whether mr. coote was not one of the three that was on the outside of the bar? cawthorne--yes, my lord of warwick, my lord mohun, and capt. coote, were of the outside of the bar. earl of warwick--was capt. coote with me in the beginning of the night at that house? cawthorne--yes, he came at the beginning of the night with my lord of warwick. earl of peterborough--my lords, i desire to ask this witness one question. lord high steward--i think it is proper, my lords, in point of method, to let both sides have done before any questions be asked by any of my noble lords. earl of peterborough--i did apprehend my lord of warwick had done. lord high steward--no, my lord, not as yet; pray, my lord of warwick, what other questions has your lordship to ask of this witness? earl of warwick--my lord, i desire he may be asked particularly this question, whether he perceived any quarrel particularly between me and capt. coote when we went out of the house? lord high steward--you hear the question, did you perceive any quarrel between my lord warwick and mr. coote before they went out of the house? cawthorne--no, i did not; nor ever saw any quarrel between them in my life. earl of warwick--i desire to know who paid the reckoning that night? cawthorne--the reckoning was called for before i came in to take it; and though i think my lord of warwick paid for mr. coote, yet i cannot so directly tell, because it was collected before i came into the room to receive it. lord high steward--my lord, have you any thing more to ask this witness? earl of warwick--no, my lord, at present, that i think of. lord high steward--my lord peterborough, your lordship desired to ask a question, will you please to propose it now? the earl of peterborough reminded the witness that he had said that there were two sides, and that coote and lord warwick were on the same side. he asked what cawthorne meant by this, and he explained that all six had their swords drawn; that mohun, warwick, and coote were on one side of the bar, and the three captains, james, french, and dockwra on the other: the cause of quarrel must have occurred above stairs, but he heard nothing pass between them. lord high steward--but you have not given a satisfactory answer to that question which the noble lord, my lord peterborough, asked you, what reason you had to apprehend that the noble lord the prisoner at the bar, and capt. coote were of a side? cawthorne--my lord mohun came to the chairside, when capt. coote and capt. french were got into the two first chairs, and told capt. coote, that there should be no quarrel that night but that they three, my lord warwick, my lord mohun, and he, should go home together; and i took them three to be of a side, because they were on the outside of the bar together; and when they all went away, their three chairs went away first, all three together. lord high steward--is that all the reason you can give why you say, they were three and three of a side? cawthorne--yes, my lord, i did apprehend it so. attorney-general--if my noble lords have done with their questions i desire to ask this witness another question; my lords, i think this person says, that there was a quarrel at the bar of the house, and swords drawn, and as he apprehended, three were on the one side, and three on the other; but if i take him right, i do not see that he has given your lordships any manner of satisfaction, what reason he had to apprehend there were three and three of a side; or, which will be very material in this case, if your lordships can get to the knowledge of it, which three were on the one side, and which three were on the other; or indeed, whether there were three and three of a side, as your lordships will have reason by-and-bye to enquire a little further into that matter. my lords, i desire he may be asked this plain question, what words or other passages he did perceive, that made him apprehend there was a quarrel between them, and they were three and three of a side? cawthorne--i apprehended it from the words that mr. coote said, that he would laugh when he pleased, and frown when he pleased. attorney-general--pray, my lord, i desire he may be asked, who those words were spoken to, and who they were applied to? cawthorne--they were spoke to mr. james, mr. french, and mr. dockwra, who were within side of the bar. attorney-general--did he apply those words to all those particular persons? cawthorne--yes, as i thought, for they three were within the bar; my lord warwick, my lord mohun, and mr. coote, were without the bar. attorney-general--pray, my lord, i desire he may be asked this question. was that before the swords were drawn, or afterwards? cawthorne--it was before. attorney-general--then i desire he may be asked, whether the swords were drawn upon those words? cawthorne--no, my lord; the time of drawing the swords was when i went out to call chairs and coaches; and i know not who drew the swords first, or when they were drawn; but when i came back i found them all drawn, and i heard them clashing. attorney-general--upon the oath you have taken, was those words that you speak of mr. coote's that he would laugh when he pleased, and frown when he pleased, before the swords were drawn, or after the swords were drawn? cawthorne--before the swords were drawn; for i did not see the swords drawn till i came back. in answer to lord wharton, the witness said that mohun and warwick had threatened to send for a file of musketeers, and mohun had done all he could to pacify the quarrellers, and he 'particularly had his finger pricked with endeavouring to cross their swords, and keeping them from fighting; which was all he got from it.' his hand was bloody; but the witness did not see him hurt, as he was outside at the time. he received their reckoning just before they came down to the bar and stayed there two or three minutes afterwards. it was after coote came out of his chair that he heard him speak the words he had deposed to; no reply was made to them. mohun, warwick, and james had all tried to stop the quarrel and threatened to send for the guard; this was before the swords were drawn downstairs. attorney-general--pray, my lord, let him be asked this question, was it after they were three on the one side, and three on the other, that my lord mohun and my lord warwick spoke those words? cawthorne--i apprehend the words were spoke by mr. coote, that he would laugh when he pleased, and frown when he pleased, before the swords were drawn. lord high steward--but that which my lords desire to know is, what the time was when my lord warwick and my lord mohun declared their desire to part them and make them friends; whether before or after the swords drawn? cawthorne--before and after; for i was absent when the swords were drawn. earl rivers--he says, that after my lord mohun and my lord warwick threatened to send for the musqueteers, they promised to be quiet. i desire to know who he means by they? cawthorne--mr. james called to me, and said, i need not go and call for the guards, for the quarrel was over. there is one thing more that i forgot, my lord: after my lord mohun and my lord warwick were gone away in their chairs, and mr. coote, i heard mr. dockwra say to capt. james and capt. french, they did not care a farthing for them, they would fight them at any time. lord high steward--who were together then? cawthorne--capt. james, mr. french, and mr. dockwra, after my lord mohun and my lord warwick were gone with capt. coote. lord high steward--then mr. french was with them? mr. dockwra said so? cawthorne--yes, my lord. lord wharton--if i apprehend him aright, as to what he says now, my lord of warwick, my lord mohun, and capt. coote, were gone away at that time. cawthorne--yes, they were gone away in the three first chairs, which my lord mohun bid go home. lord wharton--who does he say spoke those words? lord high steward--you hear my noble lord's question, who spoke those words? repeat them again. cawthorne--when my lord warwick, my lord mohun, and capt. coote, were gone, i heard mr. dockwra say to mr. french and mr. james, we don't care a farthing for them, we will fight them at any time. attorney-general--i desire to know, whether this witness testified any thing of this matter when he was examined before the coroner? cawthorne--no; i forgot those words when i was examined before the coroner. attorney-general--how soon after your examination did you recollect yourself as to what you now speak? cawthorne--the next day after. he had not mentioned the words he now said were spoken by dockwra either at the inquest or at the trial at the old bailey. _thomas browne was sworn._ lord high steward--what question do you ask this witness, mr. attorney? attorney-general--that he would acquaint your lordships, whether he carried mr. richard coote, the person that was slain, upon the th or th of october, from the greyhound tavern in the strand, and to what place he carried him? lord high steward--you hear the question; pray speak so loud that my lords may all hear what you say. browne--my lords, i was between the hours of one and two in the morning, on sunday the th of october last, with my fellows and our chair, at the buffler's head tavern at charing-cross, and i heard some people at locket's, at the greyhound in the strand, calling coach coach, a pretty while; but there were no coaches in the street, nor that came to them; when they could not get coaches then they called out for chairs; and we coming to the door with our chair, there were four other chairs there, and six gentlemen stood in the passage; and then it was said, there was not chairs enough, and there wanted one more, and they stood discoursing; and the first man came into my chair, who was capt. coote, and my lord of warwick he got into another; when the door of the chair was shut up, we asked whither we should go; but my lord mohun came and bid open the chair again; and we did so, and he returned into the house, and there was some discourse between them standing at the bar in the entry. mr. coote came out again and came into my chair, and my lord mohun and my lord of warwick went into two others; mr. coote bid me carry him into leicester fields, and to make all the haste i could; my lord of warwick and my lord mohun being in the next chairs, asked him, whither are you a-going, and called out twice, and he said, to leicester fields; pray do not, says my lord of warwick, but come along with us, and let it alone till to-morrow; but he bid us go on; and as we were turning up st. martin's lane, by the cross keys tavern, my lord mohun, and my lord warwick called out to us to stop, and their chairs came up to the back door of the cross keys tavern, and there all the three chairs were set on a-breast in st. martin's lane, and while they were talking together, there came by three chairs on the other side of the way; and mr. coote bid us take up and make all the haste we could to get before them into leicester fields, so taking up the chair again, mr. coote bid us make haste, and if we could go no faster, he swore, damn him, he would run his sword in one of our bodies: there were two chairs before me, and my lord mohun and my lord warwick followed in two chairs after me; and when we came to the corner of leicester fields, at green street end, all the three chairs were set down a-breast again, and mr. coote put his hand in his pocket, and took out half a guinea to pay, and said he had no silver; and my lord of warwick spoke to my lord mohun, who took out three shillings out of his pocket, who said, there was for my lord warwick, captain coote, and himself; and when they were gone out, i took my box and my pipe, and filled my pipe, and took the lanthorn and lighted it, and by that time i had lighted my pipe, i heard a calling out, chair, chair, again, towards the upper end of the square; so i took my chair, and there was one of the chairs that was not gone; and so we came up to the upper end of the fields, and they called to us to bring the chairs over the rails; we told them we did not know how to do that, for we should not be able to get them back again; at last we did get over the rails, and made up close to the place where we heard the noise, for we could see nothing, it being a very dark night; and when we came up close to them, by our lanthorn there were two gentlemen holding up mr. coote under their arms, and crying out, my dear coote, my dear coote! attorney-general--pray, who were those two gentlemen? browne--i did not know them, one was in red cloaths, and the other had gold lace, and they would have had me have taken mr. coote into my chair; but seeing him bloody, and not able to help himself, i said i would not spoil my chair, and so would not meddle with him; but they said they would make me any satisfaction for my chair, and desired me to take him in; but he gave himself a spring from them, and we found he was too heavy for us to lift over the rails, and all we could do could not make him sit in the chair, but the chair was broken with endeavouring to place him there; and they said if we would carry him to a surgeon's, they would give us £ security; but we finding it impossible, the watch was called for, but nobody would come near, for they said it was out of their ward, and so they would not come anigh me; and i staid about half an hour with my chair broken, and afterwards i was laid hold upon, both i and my partner, and we were kept till next night eleven a-clock; and that is all the satisfaction that i have had for my chair and every thing. attorney-general--pray, my lord, i desire he may recollect himself; for we do apprehend it is very material, who it was that desired to take mr. coote into the chair. browne--i cannot tell who they were, it was so very dark i could only see their cloaths. attorney-general--did you see the earl of warwick there? browne--no, sir, he was not there; one of them, i tell you, had officers' cloaths on, red lined with blue, and the other had gold lace on; there was nobody there that held him up but them two. marquis of normanby--he says he saw two persons holding up mr. coote; it would be very well to have that matter very well settled, who those two persons were; i desire to know how he is sure my lord of warwick was not one of them two? browne--i know my lord of warwick very well, and i am sure he was neither of the two. duke of leeds--i would know what light he had to discern it so well by, that he can be sure my lord of warwick was not there; for he says it was a very dark night, and yet he describes the particular persons that held mr. coote up. browne--yes, my lord, i am sure my lord of warwick was none of them. duke of leeds--how could you distinguish in so dark a night, the colours of people's cloaths? browne--with the candle that i had lighted in my lanthorn. duke of leeds--he could not know any of the persons unless he held a lanthorn to their faces, or knew them very well before. lord high steward--my lord warwick, will your lordship ask this witness any questions? earl of warwick--my lord, i desire he may be asked, whether i did not bid him stop at st. martin's-lane end, and do all that i could to hinder mr. coote from going any further, but to go home? browne--the earl of warwick, and my lord mohun, as they turned up the lane, asked mr. coote, whither he was going? and when he said to leicester-fields, they desired him to let it alone till to-morrow; and my lord mohun said he should go home with him; but the other bid us go on, and said he would not go to his lodgings, but that they would make an end of it that night; still they called to him again, dear coote, let us speak a word with you; and as the chairs came to the back-door of the cross-keys tavern, there they stood all of a breast, and they both of them spoke to him, and stood a pretty while there, and in the mean time three chairs passed by on the other side; he commanded us to take up, and carry him away to leicester-fields immediately, and overtake the other chairs, or he would run one of us into the body. lord high steward--would your lordship ask him any more questions? earl of warwick--no, my lord. attorney-general--my lord, i observe, he says they discoursed some time together while they stopped in st. martin's-lane; i desire that he may be asked, whether he can tell what that discourse was? browne--i could not well hear, they whispered together, but i could hear my lord mohun, and my lord of warwick, desire capt. coote to go home, and let the business alone till another time. attorney-general--i desire he may explain himself, what that business was that they would have put off till to-morrow. browne--i know not what it was; i heard of no anger betwixt them, but they were as good friends, for anything i know to the contrary, as ever they were in their lives or as ever i see any men. attorney-general--our next witness is william crippes. [who was sworn.] lord high steward--what do you ask this man, mr. attorney? attorney-general--pray, will you give my lords here an account who you carried to leicester-fields, the th or th of october, and what happened in your knowledge at that time? crippes--captain coote was the first man that went into the chair when we came to the greyhound tavern; afterwards he came out again, and when we took him up the second time, he was the first man that set out; and he bid us carry him to leicester-fields; and when we came to the corner of st. martin's-lane, we turned up that way; and my lord of warwick, and my lord mohun, called to us, being in chairs behind, to know whither we were going, and desired to speak with captain coote; and he said he was going to leicester-fields; and when they asked, what to do? he said, to end the business: they desired him to put it off till to-morrow; and while they were discoursing about it in st. martin's-lane, there passed by other three chairs, which, when captain coote saw, he bid us take up and overtake them, and go faster, or he would run one of us into the body: so we went on, and at the lower end of leicester-fields we set him down; and the other two gentlemen, my lord warwick and my lord mohun, were there set down, and went lovingly together, for any thing that i saw, up the pavement of the square, towards the upper end; and in a little time we heard a noise of calling for chairs towards the upper end, and when we came there with the chair, we were bid to lift over the chair within the rails; and when we said it was hard to be done, they insisted upon it, and we did come in; and when we came there we saw two gentlemen holding up captain coote, and would have had us taken him into the chair; we saw there was a great deal of blood, but i never heard how it came, and they would have had us carried him to a french surgeon's, and proffered any money. attorney-general--my lord, i desire to know, who they were that desired him to be carried to the surgeon? lord high steward--you hear the question, what say you? crippes--i cannot tell, my lord; one of them had something of lace upon him, but it was so dark that i could hardly see my hand, and therefore i cannot tell who they were; and when there was an objection made, that the chairs would be spoiled, they said we need not question our chair, they would give us £ security to answer any damages, if we would but carry him; so we endeavoured to put him into the chair, but could not; and so we called out to the watch, to have had some help; but they said it was none of their ward, and so they would not come to us; so the gentlemen went away, and we left them, and went and called a surgeon, who, when he came, said, he was a dead man, and we were secured till the next day. attorney-general--pray, my lord, i desire he may be asked, were there not other chairs in that place at the time? crippes--there was one in the field besides, and no more that i could see; they all went away but us two. attorney-general--what distance of time was there between their setting down in leicester-fields, and their calling the chairs again? crippes--not a quarter of an hour. attorney-general--what became of the three chairs that passed by you in st. martin's-lane? crippes--they got before us; but what became of them afterwards i cannot tell. attorney-general--did they come from the same place, the tavern in the strand that you were at? crippes--yes, i believe they did, my lord; for capt coote bid us follow them, and threatened us if we did not make greater haste. attorney--general--do you know my lord of warwick? crippes--yes, he had whitish cloaths on; and none but he had such clothes on as those were. lord high steward--will your lordship ask this witness any questions? earl of warwick--my lord, i desire he may be asked, whether i did not bid him stop? and, whether i did not say, they should not go to quarrel that night? attorney-general--my lord, i desire to know of him, directly and downright, whether my lord of warwick was not one of them that held him when he was within the rails of the fields? crippes--no, he was not; he was neither of them; for the one of them was too big for him, and the other was too little for my lord mohun. attorney-general--now we call the chairman that carried the earl of warwick into leicester-fields, james crattle. (he was sworn.) attorney-general--will you tell my lords what you know of any person that you carried the th or th of october last, from the greyhound tavern in the strand, and who it was, and whither you carried him? crattle--i was going along charing-cross, between one and two in the morning, the th of october, last, and i heard a chair called for at locket's at the dog tavern; and thither i and my partner went, and we took up the gentleman, and carried him to leicester-fields. attorney-general--who was that gentleman? crattle--it was my lord of warwick. attorney-general--what time of night do you say it was? crattle--it was about one or two in the morning. attorney-general--what day of the week was it? crattle--it was saturday night and sunday morning. attorney-general--whither did you carry him? crattle--into green-street, towards the lower end of leicester-square. attorney-general--what chairs were there more there? crattle--there was one that captain coote was in, and another that my lord mohun was in, and we went away all together. attorney-general--were there no other chairs? crattle--i did not know who went in the other chairs, but there were three other chairs that passed by us at st martin's-lane, and we followed after them to leicester-fields. attorney-general--pray what became of you after you had set down your fare? crattle--we were discharged and paid; the other three went up towards my lord of leicester's; but we were coming away, and in a little time we heard the noise of calling chairs! chairs! again, and there were two chairs did come up, thomas browne's and ours; my lord of warwick called our chair, and we took him into it, and he bid us carry him to the bagnio in long-acre; and when we came there we knocked at the door, and his hand was bloody, and he asked us if we had any handkerchief to bind up his hand. attorney-general--was there any other chairs at the door of the bagnio, at the same time when you came there? crattle--yes, there was another chair there at the door at the same time, and we set down both together. attorney-general--pray whence came that chair? crattle--indeed, i do not know. attorney-general--who were the chairmen that carried that chair? crattle--indeed, my lord mohun and my lord warwick were the only persons that i knew of all the company. attorney-general--what sort of gentleman was the other, that went out of the other chair into the house? crattle--he was a pretty tall man; when he was in we went away; i only can say, i saw my lord of warwick go into the house. attorney-general--did you take any notice of any sword that my lord of warwick had in his hand at that time? crattle--no; i cannot say i did take any notice of any sword, only that there was a handkerchief desired. attorney-general--pray, did you hear no noise at all in the field, till you heard chairs called for again? crattle--no; i cannot say i heard any noise in the field. attorney-general--did you apprehend there was any fighting? crattle--no, i knew nothing at all of it; but upon the calling of chairs again, and my lord warwick coming along, we took him in, and he bid us go to the bagnio, and thither we went. attorney-general--my lord, we have done with this witness. lord high steward--my lord warwick, will you ask this witness any questions? earl of warwick--no, my lord. _gibson_, the other chairman who carried the earl of warwick, was then called, and gave substantially the same evidence as the last witness. _applegate_ carried lord mohun to leicester fields, and corroborated the account of the journey thither given by the other witnesses. attorney-general--what then happened afterwards, can you tell? applegate--i cannot tell whether i had lighted my pipe, or was just lighting it, when i heard chairs called again; upon which we run up with our chairs towards the upper end of the fields, and there i did see my lord of warwick within the rails, who bid us put over our chair into the fields; but we told him, if we did, we could not get it over again; and so we went with our chair to the corner of the fields; and when we came there, there came out captain french, who bid us open our chairs, and let him in, for he did believe he was a dead man; and upon that we did take him in, and he bid us carry him with all the speed we could to the bagnio in long-acre, and my lord of warwick got into another chair behind; so we went to long-acre; and when we came to the door of the bagnio and captain french came out of the chair, he was so weak that he fell down upon his knees; and when he came out, i asked who should pay me, and desired to be discharged; and the earl of warwick said, damn ye, call for your money to-morrow; so they both went in at the bagnio door together. attorney-general--pray, who called for the chair first, captain french, or my lord of warwick, in the fields? applegate--i cannot tell; but when i brought up my chair, i first saw my lord of warwick, and he would have had me lifted the chair over the rails, and i told him we could not get it over again, and so went up to the upper end of the fields. attorney-general--if you first spoke with my lord of warwick, why did you not carry my lord of warwick? applegate--indeed i cannot tell; but i suppose it was because he did not come so soon out of the fields as captain french, or did not come the same way. attorney-general--pray, do you remember anything that happened just at their carrying capt. french away? applegate--before he went into the chair, he stopped and would have pulled off his cloaths, but we would not let him. attorney-general--did you see any sword capt. french had? applegate--i did see no sword that i can say directly was a sword; but capt. french had something in his hand, but what it was i cannot tell. attorney-general--what was it that he said to you, when he first went into the chair? applegate--he desired to be carried to the bagnio; for he said he believed he was a dead man. attorney-general--pray friend, recollect yourself, if you heard him say any thing at all when he first went into the chair at the greyhound tavern? applegate--i did not hear him mention any thing at all. attorney-general--pray what did you hear my lord of warwick say at that time? applegate--truly, i cannot say i heard him mention any thing at all neither; but i did hear my lord mohun say, when he could not prevail, in st. martin's-lane, with captain coote to go home, that if they did go he would go and see it. attorney-general--if they did go; who did he mean by they? applegate--my lord warwick and captain coote that were in the other chairs; there was nobody else to speak to. attorney-general--was there any talk of fighting or quarrelling? applegate--no, indeed, i do not know of any difference there was between them. lord high steward--my lord warwick, will your lordship ask this witness any questions? earl of warwick--my lord, i desire he may be asked, whether i did not endeavour to put off the going into leicester-fields, and to have all things let alone till to-morrow. applegate--my lord, i cannot say any thing of that; but i did hear my lord mohun beg heartily of captain coote to go home, and let the business alone till another time; and indeed i think, i never heard a man beg more heartily for an alms at a door, than he did, that they might not go into the fields then; but i cannot say that i heard any thing that my lord of warwick said about it. lord high steward--will your lordship ask him any other questions? earl of warwick--no, my lord. catro, who was the second chairman who carried lord mohun's chair, corroborated applegate's evidence. palmer, jackson, and edwards were three chairmen who had helped to carry french, james, and dockwra to leicester fields; but they had nothing to add to the evidence already given. _pomfret_ was a servant at the bagnio in long acre. in answer to the attorney-general he said:-- my lord, on sunday the th of october last, between two and three in the morning, there came to my master's door the earl of warwick, and knocked at the door, and there was capt. french with him; and when they were let in, my lord of warwick told me that capt. french was wounded, and he himself had a wound, and he desired that my master might be called up for to dress the wounds; especially, because capt. french was very much wounded; which accordingly was done in about a quarter of an hour after they were brought in. attorney-general--did he desire to be concealed when he was come in? lord high steward--of whom do you speak, mr. attorney? attorney-general--my lord of warwick. pomfret--he did desire, that if any body asked for him, it should be said he was not there. attorney-general--pray in what condition did my lord of warwick seem to be in at that time? pomfret--he seemed to be very much concerned at that time, and his right hand, in which he had his sword, and which was drawn, was very much bloody. attorney-general--was the sword bloody that he had in his hand? pomfret--the blade was bloody; but whether it was all over bloody, i cannot tell; there was besides some blood upon the shell; it was very near all over bloody, as i remember. attorney-general--pray, friend, consider what you swore at the coroner's inquest about the blood upon the sword. pomfret--indeed i cannot say it was bloody all along the blade; but there was blood upon the shell, and there was blood upon the inside: it was so, to the best of my remembrance. attorney-general--what condition was mr. french's sword in? pomfret--he had a drawn sword in his hand, but i did not perceive it had any blood upon it; it was a large blade. attorney-general--how do you know what sort of sword mr. french's was, and in what condition it was? pomfret--he desired me to take notice of it next morning, and i did so; and there was no blood upon it. attorney-general--how came you to be desired to take notice of what passed there about the swords? pomfret--my lord, there was three of them the next day, and one, it was said, was mr. coote's, and another of them was my lord of warwick's, which i do believe was bloody from the point upwards, very near; but i cannot directly say but that was afterwards. attorney-general--who brought in that sword that you say was mr. coote's? pomfret--to the best of my remembrance, capt. dockwra brought it in; it was almost half an hour after my lord warwick and capt. french came in to the house, when they came thither. attorney-general--they, who do you mean? pomfret--captain james and he. attorney-general--were they let in presently? pomfret--no, my lord of warwick had desired that they might be private there; but when they knocked at the door, my lord of warwick desired to know who they were; and when it was understood that they were mr. james and mr. dockwra, they were let in by my lord's order. attorney-general--pray, which of all the four brought in any sword in a scabbard? pomfret--it was captain dockwra. attorney-general--pray, did they appear to be all of a party? pomfret--they were glad to see one another; and they talked a pretty while together; but indeed i cannot say i heard what they talked. attorney-general--pray, do you remember my lord of warwick's sword, and what there was upon it? pomfret--it was a steel sword, water-gilt, and as near as i can remember, there was blood upon it for the most part from the point upward. attorney-general--and what did appear upon mr. french's sword? pomfret--there was water and dirt, but there was no blood at all. attorney-general--how long did they stay there? pomfret--they all continued about half an hour; and then went away, all but mr. french, who staid there. attorney-general--what then became of the others? pomfret--mr. james, mr. dockwra, and my lord of warwick went away; and my lord of warwick desired particularly, that we would all take care of mr. french, for he was his particular friend; and mr. french continued there till sunday about one of the clock. attorney-general--was there any discourse at that time about mr. coote? pomfret--not that i heard of, one word. attorney-general--was there any notice taken of any quarrel that happened between any body, and who? pomfret--no, indeed, i did not hear them take notice of any quarrel at all between any body. attorney-general--you say mr. french, when he came into your house, was wounded, and there was care particularly taken of him because he was wounded. pomfret--yes; my lord of warwick desired to take care of him. attorney-general--then pray, was there no discourse how he came to be wounded? pomfret--indeed i do not know how he came to be wounded; nor did i hear one word of discourse about it; indeed i cannot say any thing who wounded him. attorney-general--pray will you recollect yourself, and tell my lords what sort of handle had my lord of warwick's sword when you saw it? pomfret--it had a steel handle. attorney-general--pray, can you tell whether the shell was open or close? pomfret--i cannot tell justly; i saw it, and that was all. attorney-general--if i apprehend you, you say my lord had a wound in his hand. pomfret--yes, my lord, he had so. attorney-general--pray, in what hand was it that he was wounded? pomfret--to the best of my remembrance, it was in his right hand. attorney-general--pray, did there appear much blood there? pomfret--yes, my lord, indeed there did. serjeant wright--you talk of mr. james and mr. dockwra's swords; pray in what condition were they? pomfret--mr. dockwra's sword was by his side, and not drawn. serjeant wright--what did you observe of captain james's sword? pomfret--his sword was naked, and he had lost his scabbard; but how that came i cannot tell; and there was dirt on one side of the sword; and he said he had left his scabbard behind him. attorney-general--was there any blood upon his sword? pomfret--no, there was no blood that i did see upon it. attorney-general--pray did you see any blood upon mr. dockwra's sword? pomfret--no, indeed, i did not see mr. dockwra's sword, it was in the scabbard by his side. warwick's was 'a pretty broad sword': he did not take notice what length or breadth the other swords were of; french's sword was not a broad sword; he saw the swords at about three in the morning. james broke his sword on the floor after he came in. _goodall_, a servant in the bagnio, and his wife were called. they spoke to warwick coming in with his sword drawn in his hand and bloody; his hand was wounded. there was blood on the hilt of his sword, which was a close one. french may have come in with warwick; james and dockwra came in half an hour afterwards. warwick gave orders that nobody was to be admitted; but he opened the door for james and dockwra when they knocked and he saw who they were. warwick, james, and dockwra went away in a little time, warwick ordering that particular care should be taken of french, who was his friend. _henry amy_, the surgeon who lived at the bagnio, was called, and said that he was called up at two in the morning of the th of october to attend the lord warwick and captain french. the latter was seriously wounded, the former on the first joint of his fore-finger. while french's wound was being dressed there was a knocking at the door; warwick ordered that nobody should be admitted, but when he found it was james and dockwra ordered that they should be let in. they and warwick went away in a little time, the latter telling the witness to take particular care of french. warwick's sword was very bloody; french called for his sword the next morning, when the witness saw it, and it was a little dirty, but not with blood. there was no talk of any quarrel; the witness asked no questions; he did not then hear anything about coote being killed. french's sword was a middle-sized one; it was not a broad blade. lord high steward--mr. attorney, who is your next witness? attorney-general--captain loftus duckinfield. (who was sworn). attorney-general--this gentleman will acquaint your lordships what discourse past between these gentlemen the next day; pray, sir, acquaint my lords what you heard about mr. coote's death, and when and where. captain duckinfield--early in the morning i was told of this accident. attorney-general--by whom? captain duckinfield--one of the company, i cannot tell who, i think they were all together then, my lord of warwick, capt. james, capt. dockwra, and nobody else. attorney-general--what was their discourse? captain duckinfield--they said, they believed captain coote was killed. attorney-general--did they tell you by whom? captain duckinfield--by mr. french, every body did say he was his adversary. attorney-general--what account was given of the action? captain duckinfield--they said it was done in the dark, and capt. french was his adversary. attorney-general--was there any notice taken of any duel? captain duckinfield--yes, there was, between those two, and the other persons on both sides; and it was said my lord of warwick was friend to mr. coote, and my lord mohun. attorney-general--who were on the other side? captain duckinfield--mr. dockwra and mr. james. attorney-general--was there any discourse, who actually fought? captain duckinfield--it was said, that capt. french fought with capt. coote, as they believed, and mr. james with my lord of warwick. attorney-general--did you see my lord of warwick's sword? captain duckinfield--some time of the day i did; but i cannot tell whether it was in the morning, or no. attorney-general--in what condition was it? was it bloody or not? captain duckinfield--it was a steel sword. attorney-general--how long did they stay with you? captain duckinfield--about half an hour. attorney-general--did they come publicly? captain duckinfield--we went away in a hackney coach together. attorney-general--pray, what discourse was there about consulting to go into the country together? captain duckinfield--that might be discoursed, but by whom i cannot tell. attorney-general--did my lord of warwick talk of going into the country? captain duckinfield--whether the company talked of it, or my lord of warwick in particular, and the rest assented to it, i cannot well tell. attorney-general--whither did they go? captain duckinfield--i cannot directly tell. attorney-general--what time of the day was it? captain duckinfield--it was about six of the clock. attorney-general--cannot you tell whither they went? captain duckinfield--capt. james and capt. dockwra went to the ship and castle in cornhill about five o'clock or six, as near as i can remember. attorney-general--can you tell what time my lord of warwick went away? captain duckinfield--no, i cannot tell what time he went away, not directly. attorney-general--can you tell of any agreement amongst them, whither they were to go? captain duckinfield--no i cannot. attorney-general--what discourse or concern did you observe past between them, concerning capt. coote? captain duckinfield--my lord of warwick shewed a great deal of concern for his friend mr. coote. attorney-general--had you any notice of mr. coote's death amongst you? captain duckinfield--we had notice before we went away; but i cannot tell whether it was before my lord of warwick was gone. attorney-general--was it after the discourse of going into the country, or before? captain duckinfield--indeed, i cannot directly say when it was. attorney-general--pray, what reason was there for their going into the country before he was dead? captain duckinfield--they believed he was dead. attorney-general--cannot you tell the reason why they would go into the country? captain duckinfield--no, indeed, i cannot tell the reason. attorney-general--did you observe my lord of warwick's sword? was there any blood upon it? captain duckinfield--i cannot say his sword was bloody at the point; the whole blade and shell was bloody, to the best of my remembrance. attorney-general--what sort of a sword was it? captain duckinfield--it was a pretty broad blade, a hollow blade, and a hollow open shell. attorney-general--was there any discourse concerning capt. french? captain duckinfield--yes, they thought he was very ill wounded. attorney-general--was there any, and what, discourse who should give my lord of warwick his wound? captain duckinfield--it was said, they believed capt. james gave my lord his wound. attorney-general--pray, was there any blood upon mr. james's sword, or was he wounded? captain duckinfield--i saw no wound upon capt. james, that i know of. lord high steward--do you believe that my lord warwick's sword was bloodied with the hurt of his own hand, or any otherwise? captain duckinfield--i cannot tell; it was a cut shell, and the outside bloody as well as the in. lord high steward--my lord warwick, will your lordship ask this witness any questions? earl of warwick--no, my lord. lord high steward--mr. attorney, if you have any other witness, pray call them. another witness was produced, that belonged to the ship and castle in cornhill. attorney-general--this man will give you an account what passed at his house at that time, and between whom; pray, will you tell my lords who was at your house the th of october last, and what past there then? witness--my lord of warwick, capt. james and capt. dockwra; and when my lord of warwick came in i thought my lord was in a very great concern, and called for pen, ink and paper, and i feared there was some quarrel in hand; but they said no, the quarrel was over, and says my lord of warwick, i am afraid poor coote is killed. attorney-general--did you observe any desire to be private? witness--no, indeed, i cannot tell that. attorney-general--how long did they continue there? witness--about six a-clock my lord of warwick, and capt. james, and capt. dockwra, and capt. duckinfield went away. attorney-general--can you tell who went with my lord warwick? witness--no, indeed, i cannot tell who went with my lord warwick; there came in a gentleman in black, whom i knew to be my lord of warwick's steward, and he came and spoke some words to my lord of warwick, about a quarter of an hour after they came in, and then they went away, for after that i did not hear any further discourse. attorney-general--what became of the rest of the company? witness--they went away; i do not know what became of them, nor whither they went; some of them went in and out of one room into another several times, two or three times, and came out again. attorney-general--my lord, we have done with the witness. lord high steward--my lord warwick, will you ask him any questions? earl of warwick--no, my lord. _mr. salmon_, the surgeon who, by the coroner's orders, examined coote's wounds, was called. there were two wounds: one on the left breast, near the collar-bone, running down four or five inches. he could not guess what sort of a sword made it; the wound was about half an inch broad. there was another wound under the last rib on the left side, an inch broad, six inches deep. they were both mortal. in answer to lord warwick, he said that neither could be given by a sword run up to the hilt. he could not say that they must have been given by the same weapon: but they might have been. _stephen turner_, coote's servant, identified his master's sword; he believed he fenced with his right hand, but had never seen him fence at all. earl of warwick--i desire he may be asked, whether he has not observed a particular kindness and friendship between his master and me? turner--yes, my lord; i have several times waited upon my master, when my lord and he was together, and they were always very civil and kind one to another; and i never heard one word of any unkindness between them. earl of warwick--whether he knows of any quarrel that was between us? turner--no, i never did. earl of warwick--whether he did not use to lie at my lodgings sometimes? lord high steward--you hear my lord's question: what say you? did your master use to lie at my lord of warwick's lodgings at any time? turner--yes; very often. attorney-general--pray call pomfret again, and let him see the sword. [then he came in, and two swords were shewn him.] attorney-general--i desire he may acquaint your lordships what he knows of those two swords. pomfret--these two swords were brought in by some of the company that came to my master's house; and when they were shewn to captain french in the morning he owned this to be his, and the other to be mr. coote's; and he desired that notice might be taken, that his sword was dirty but not bloody; and there was some blood upon the other. attorney-general--who brought in mr. coote's sword? pomfret--indeed i cannot tell. _white_, the coroner, was called, and said that he had asked salmon whether the two wounds on coote's body were given by the same weapon, and he said he could not say. attorney-general--we have done with our evidence, until we hear what my lord of warwick says to it. lord high steward--my lord of warwick, will you ask this witness any questions? earl of warwick--no, my lord. lord high steward--make proclamation for silence. clerk of the crown--serjeant at arms, make proclamation. serjeant-at-arms--o yes, o yes, o yes! his grace, my lord high steward of england, does strictly charge and command all manner of persons here present to keep silence, upon pain of imprisonment. lord high steward--my lord of warwick, the king's counsel have made an end of giving evidence for the king; now is the proper time for you to enter upon your defence. earl of warwick--may it please your grace, and you my noble lords, my peers. i stand here before your lordships, accused of the murder of mr. coote, of which i am so innocent, that i came and voluntarily surrendered myself so soon as i heard your lordships might be at leisure to try me; and had sooner done it, but that the king was not then here, nor your lordships sitting, and had no mind to undergo a long confinement; and now i think i might well submit it to your lordships' judgment, even on the evidence that has been offered against me, whether there hath been any thing proved of malice prepense, or my being any actor therein, so as to adjudge me guilty. and i think i may with humble submission to your lordships say, that my innocence appeareth even from several of the witnesses who have been examined against me, which i will not trouble your lordships to repeat, but submit to your memory and observation. but, my lords, the safety of my life does not so much concern me in this case, as the vindication of my honour and reputation from the false reflections to which the prosecutor has endeavoured to expose me; and i shall therefore beg your lordships' patience to give a fair and full account of this matter: in which the duty i owe to your lordships, and to justice in general, and the right i owe to my own cause in particular, do so oblige me, that i will not in the least prevaricate, neither will i conceal or deny any thing that is true. my lords, i must confess i was there when this unfortunate accident happened, which must be a great misfortune in any case, but was more so to me in this, because mr. coote was my particular friend; and i did all i could to hinder it, as your lordship may observe by the whole proceedings. it was on the saturday night when my lord mohun and i, and several other gentlemen, met at locket's, where the same company used often to meet; and in some time after several of us had been there, mr. coote came unexpectedly, and for some time he and we were very friendly, and in good humour, as we used to be with each other; but then there happened some reflecting expressions from mr. coote to mr. french, who thereupon called for the reckoning; and it being paid, we left the upper room, and i proposed to send three bottles of wine to my own lodging, and to carry him thither to prevent the quarrel. but while the company stopped to call for a glass of ale at the bar below, mr. coote (whose unfortunate humour was sometimes to be quarrelsome) did again provoke mr. french to such degree, that they there drew their swords; but we then prevented them of doing any mischief: then mr. coote still insisting to quarrel further with mr. french, my lord mohun and i proposed to send for the guards to prevent them: but they had got chairs to go towards leicester-fields; and my lord mohun and i, as friends to mr. coote, and intending to prevent any hurt to him, did follow him in two other chairs; and as he was going up st. martin's-lane, stopped him, and i extremely there pressed him to return and be friends with mr. french, or at least defer it, for that the night was very dark and wet; and while we were so persuading of him, mr. french in one chair, and mr. james and mr. dockwra in two other chairs past by us (which we guessed to be them), on which mr. coote made his chairmen take him up again, and because the chairmen would not follow mr. french faster, threatened to prick him behind; and when we were gone to green-street and got out of our chairs, mr. coote offered half a guinea to be changed to pay for all our three chairs, but they not having change, he desired lord mohun to pay the three shillings, which he did. and in a few minutes after, mr. coote and mr. french engaged in the fields, whither i went for the assistance and in defence of mr. coote, and received a very ill wound in my right hand; and there this fatal accident befel mr. coote from mr. french whom mr. coote had dangerously wounded, and i must account it a great unhappiness to us all who were there: but so far was i from encouraging of it, that i will prove to your lordships that i did my utmost endeavours to prevent it; so far from any design upon him, that i exposed my own life to save his; so far from prepense malice, that i will, by many witnesses of good quality and credit, prove to your lordships a constant good and uninterrupted friendship from the first of our acquaintance to the time of his death; which will appear by many instances of my frequent company and correspondence with him, often lending him money, and paying his reckonings; and about two months before his death lent him an hundred guineas towards buying him an ensign's place in the guards, and often, and even two nights before this, he lodged with me, and that very night i paid his reckoning. and when i have proved these things, and answered what has been said about the sword and what other objections they have made, i doubt not but that i shall be acquitted to the entire satisfaction of your lordships, and all the world that hear it. before i go upon my evidence, i will crave leave further to observe to your lordships, that at the old bailey, when i was absent, mr. french, james, and dockwra, have been all tried on the same indictment now before your lordships; and it was then opened and attempted, as now it is, to prove it upon me also; and by most of them the same witnesses who have now appeared; and they were thereupon convicted only of manslaughter, which could not have been, if i had been guilty of murder. and on that trial it plainly appeared that mr. french was the person with whom he quarrelled, and who killed him. and now i will call my witnesses. lord high steward--will your lordship please to go on to call your witnesses, for the proof of what you have said; that is the method, and then you are to make such observations as you please. earl of warwick--my first witness is capt. keeting, who was with me at locket's, but went away before capt. coote or any of them came; and he will tell you i was with him a while. [then captain keeting stood up.] lord high steward--capt. keeting, you are not upon your oath, because the law will not allow it. in cases of this nature the witnesses for the prisoner are not to be upon oath; but you are to consider that you speak in god's presence, who does require the truth should be testified in all causes before courts of judicature; and their lordships do expect, that in what evidence you give here, you should speak with the same regard to truth as if you were upon oath; you hear to what it is my lord of warwick desires to have you examined, what say you to it? captain keeting--my lord, i will tell your lordship all the matter i know of it. i met with my lord of warwick that evening at tom's coffee-house, and we continued there till about eight at night; i went away to see for a gentleman that owed me money, and afterwards i went to locket's; and while i was there, the drawer came up and told me, my lord of warwick desired to speak with me; and when he came up into the room, he said he was to meet with my lord mohun there, and capt. coote, and he asked me if i knew where capt. french and capt. james were; i told him i dined with capt. coote at shuttleworth's; and in a while after, capt. coote came in, and about an hour and an half, i think, i continued there, and capt. french came in; capt. dockwra and we drank together for an hour and an half, and they admired, about ten o'clock that my lord mohun was not come; and i payed my reckoning, not being very well, and away i went home; mr. james came in just before i went away; but there was no quarrelling, nor any thing like it before i went away. earl of warwick--my lord, i desire he may be asked, whether we did not usually meet there as friends, especially capt. coote and i? captain keeting--captain coote and my lord of warwick used to be almost every day together at that place. earl of warwick--pray, did he ever know or observe any difference or quarrel between capt. coote and me? captain keeting--no, my lord, i never saw any thing but the greatest friendship between my lord of warwick and captain coote that could be; i was with them, and saw them together almost every day. lord high steward--have you any thing further to examine this witness to? earl of warwick--no, my lord, i have no further question to ask him. lord high steward--who is your next witness, my lord? earl of warwick--my lord, i suppose i shall not need to trouble you to examine the chairmen over again; your lordships have heard what they can say: i desire colonel stanhope may be called. [who it seems stood by the chair of state, and it was some while before he could get round to come to the place the witnesses were to stand.] lord high steward--while this witness gets round, if your lordship has any other witness ready to stand up, pray let him be called. earl of warwick--to prove the kindness between capt. coote and me, i desire col. blisset may be called. [who stood up.] lord high steward--what is it your lordship asks this witness or calls him to? earl of warwick--to testify what he knows of any kindness or unkindness between capt. coote and me; whether he has not been often in our company? lord high steward--have you been often in company with my lord of warwick and capt. coote? colonel blisset--yes, my lord, i was very well acquainted with both of them for a twelve-month past before this accident and i have often been in their company, and always observed that there was a great deal of friendship and kindness between them. earl of warwick--my lord, i desire he may tell any particular instance that he knows or can remember. colonel blisset--i remember when capt. coote had his commission in the regiment of guards, he was complaining of the streightness of his circumstances; he was to pay for his commission guineas, and said he had but for to pay for it: and my lord of warwick did then say to him, do not trouble yourself about that, or let not that disturb you, for i will take care you shall have guineas, and he said he would give order to his steward to pay him so much; and i was told afterwards that he did so. earl of warwick--i desire he may tell, if he knows of any other particular instances of my friendship to mr. coote? colonel blisset--once when he was arrested by his taylor for £ , my lord lent him five guineas, and used very frequently to pay his reckoning for him. earl of warwick--i desire he may tell, if he knows any thing else; and whether he has not lain at my lodgings, and particularly but some small time before this accident happened. colonel blisset--about ten days before this unhappy accident happened, i was at my lord of warwick's lodgings, and when i came there i found capt. coote a-dressing himself; and i asked him how that came to pass, and they told me they had been up late together, and that he had sent home for his man to dress himself there, upon which i did observe that they had been a-rambling together over night; and there was a very great familiarity between them. earl of warwick--did you observe any quarrel between us? colonel blisset--no, none at all; i never knew of any quarrel between my lord of warwick and capt. coote, but i observed there was a particular kindness between them; and a great deal of friendship i know my lord of warwick shewed to him, in paying of reckonings for him, and lending him money when he wanted. earl of warwick--my lord, i desire he may be asked, whether he does not know that capt. coote was straitened for money? colonel blisset--i did hear capt. coote say, that he had not received any thing from his father for months, and his father was angry with him, and would not send him any supply, because he would not consent to cut off the entail, and settle two or three hundred pounds upon a whore he had. attorney-general--pray, sir, will you consider with yourself, and though you are not upon your oath, answer the questions truly, for you are obliged to speak the truth, though you are not sworn, whenever you come to give your testimony in a court of judicature; pray, acquaint my noble lords here, whether you did never hear my lord warwick complain of capt. coote? colonel blisset--no, i never did hear him complain of him. attorney-general--did you never hear the least word of any quarrel between them? colonel blisset--no, indeed, i did never hear of any quarrel between them. attorney-general--did you never hear of any unkindness at all? colonel blisset--no, indeed, my lord, not i: i never so much as heard of the least unkindness whatsoever. lord high steward--well then, my lord, who do you call next? earl of warwick--now colonel stanhope is here, i desire he may be asked the same question, whether he does not know the particular friendship that was between capt. coote and me, and what instances he can give of it? lord high steward--you are to consider, sir, though you are not upon your oath you are in a great court, and under no less restriction to testify the truth, and nothing but the truth: you hear what my noble lord asks you. colonel stanhope--my lord, i have known my lord of warwick and capt coote for about a twelve-month, and i did perceive that they did always profess a great kindness for one another. earl of warwick--i desire to know of him, whether he observed any particular friendship between capt. coote and me, much about the time of this business? colonel stanhope--about eight or ten days before this unhappy accident, i went to wait upon my lord of warwick twice at his lodgings: once i found capt. coote there, one of them was in bed, and the other was dressing of himself; i thought they were very good friends that were so familiar, and i had good reason to think so, because of that familiarity: both the times that i was there, when i found them together, was within eight days before the accident happened. earl of warwick--the next witness i shall call will be mr. disney. attorney-general--but before colonel stanhope goes, i desire to ask him this question, whether he did never hear or know of any unkindness between my lord of warwick and capt. coote? colonel stanhope--no, indeed i did not; i always thought them to be very good friends. lord high steward--will your lordship go on to your next witness? earl of warwick--yes, my lord, there he is, mr. disney; i desire he may be asked what he knows of any expressions of kindness and friendship between me and capt. coote. _disney_ spoke to lord warwick lending coote guineas towards the price of his commission; he had observed great kindness between the two, and had several times seen lord warwick pay coote's reckoning. _colonel whiteman_ was then called. he had constantly seen lord warwick and coote together; they dined together almost every day for half a year's time almost; and as to this time, when this business had happened, i went to my lord of warwick, being sent for by him, and found him at a private lodging, where he expressed a great deal of concern for the death of his dear friend mr. coote; and he shewed me the wound he had received in his hand, and he desired he might be private, and he told me he believed people would make worse of it than it was, because he did not appear; but he did but intend to keep himself out of the way till he could be tried; and i took what care i could to get him a convenience to go to france. attorney-general--pray, what reason did he give for his going away? colonel whiteman--the king being at that time out of england, and so the parliament not sitting, he said he did not love confinement, and had rather be in france till the parliament should meet, and he might have a fair trial, which he thought he should best have in this house. he had never seen any unkindness or quarrel between them. _edmund raymund_, lord warwick's steward, knew of the loan of guineas by him to coote, and provided the money paid on that occasion. lord warwick then stated that he wished to call french as a witness, and desired that counsel might be heard on his behalf as to whether he could be guilty of the death of a man on whose side he was fighting equally with those who were fighting on the other side, and who had already been convicted of manslaughter. after a brief discussion, it was decided that counsel should be heard on the question whether french was a competent witness. the facts were that he had been indicted for murder, and convicted of manslaughter; he claimed the benefit of clergy,[ ] which was allowed him; the burning on his hand was respited, and a pardon remitting the burning altogether had been delivered to the lord high steward under the privy seal, but had not passed the great seal. lord warwick had accordingly to maintain that french was a good witness without having been burnt on his hand, or having been pardoned. the _attorney-general_ first proceeded to argue that an allowance of clergy did not make a felon convict a competent witness.[ ] it did not discharge him from his offence, set him _rectus in curia_, and 'make him in all respects a person fit to have the benefit and privileges of a "probus et legalis homo"' till he had passed through those methods of setting himself right in the eye of the law, that the law had prescribed. the burning in the hand under the statute of henry vii. was not a punishment; it only showed that the branded person was not to have his clergy again. purgation was abolished by the statute of elizabeth, but satisfaction was not made to the law, the convict was not fully discharged from its operation, and his credit was not restored, till he was branded or pardoned. till then 'the conviction remains upon him,' and he was not capable of being a witness. _the solicitor-general_, sir john hawles,[ ] followed to the same effect, and, by the order of the court _powys_[ ] was then heard on behalf of the prisoner. he agreed with the attorney-general that the branding under the statute of henry vii. was only for the purpose of showing that the branded man has had his clergy once, and was not a punishment; the punishment still remained to be inflicted by the process of purgation. but purgation was abolished after the reformation by the statute of elizabeth 'because it was only an outward appearance and shew of purgation, and was often the occasion of very great perjuries.' the court had power to imprison the convicted man for a year; but that was not any more a punishment and a means of restoring a man to credit than was the branding.[ ] 'what we insist on is this, that the allowance of clergy sets him right in court, since purgation is abolished, and is the same thing as if he had undergone the ceremonial parts of a formal purgation'; the prisoner was to have the same benefit of his clergy as purgation would have given him before the statute, and on being allowed his clergy is to be in the same condition as if he had undergone purgation or been pardoned. the respiting of the burning of the hand till the king's pardon could be obtained was not to put him in a worse condition than he would have been in had he been actually burnt. cases were quoted, one of which was afterwards fairly distinguished, and it was urged that the burning was only a condition precedent to the accused getting out of prison, not to his being restored to his credit. _serjeant wright_ replied for the crown. he admitted that a pardon would restore a convict to credit as a witness, and that an allowance of clergy, followed by a burning of the hand, would have the same effect: now that purgation was abolished, the burning had taken its place; 'that is the very terms of the statute on which he is to be discharged; that must actually be done before he can be put into the same condition that he was in before the conviction, and consequently make him capable of being a witness.' one of the cases quoted by powys was distinguished, and hale was quoted to support the argument for the crown. _lord chief-justice treby_[ ] was then called on for his opinion, and gave it that french was not a competent witness. he had not yet actually been pardoned, for pardons were not operative till they had passed the great seal. by his conviction he had forfeited his liberty, his power of purchasing chattels or holding land, and his credit. these losses formerly might be restored by purgation; but purgation was now replaced by burning in the hand. the imprisonment under the statute was not a necessary condition to a restoration of credit, because it was 'a collateral and a new thing'; the party was not imprisoned 'by virtue of his conviction, but by a fresh express order of the judges, made upon the heinousness of the circumstances appearing on the evidence. they may, and generally do, forbear to commit at all; and when they do, it may be for a month or two, at their discretion.' in any case the burning was a condition precedent to a restoration to credit. 'to me the law is evident. a peer shall have this benefit without either clergy or burning. a clerk in orders, upon clergy alone, without burning. a lay-clerk, not without both.' _lord chief-baron ward_[ ] and _nevill, j._,[ ] expressed themselves as of the same opinion; and it was decided that french should not be admitted as a witness. it was then suggested that counsel should be heard on the point whether, supposing that lord warwick had been on coote's side in the fight, he was guilty of his death; but it was decided that as there was still a question whether the facts were as alleged this could not be done. lord warwick was then invited to sum up his evidence, 'which is your own work, as not being allowed counsel as to matter of fact,' and to make any observations he liked. he preferred, however, to say nothing. _the solicitor-general_ then proceeded to sum up for the crown, and since he could not be heard by some lords at the upper end of the house, the _duke of leeds_ moved either that 'any person that has a stronger voice should sum up the evidence,' or that 'you will dispense with the orders of the house so far, as that mr. solicitor may come to the clerk's table, or some other place within the house, where he may be heard by all.' _the earl of rochester_ opposed the second alternative on the ground that 'in point of precedent many inconveniences' would occur were such a course adopted. _the earl of bridgewater_ suggested that the difficulty might be met by sending the guard to clear the passages about the court, which was accordingly done, apparently with success. _the solicitor-general_ then continued his summing up the evidence; his only original comment on the case being that as there was no evidence as to whose hand it was by which coote was wounded, 'until that can be known, every person that was there must remain under the imputation of the same guilt, as having a hand, and contributing to his death.' then the lords went back to their own house in the same order they came into the court in westminster hall, and debated the matter among themselves, what judgment to give upon the evidence that had been heard; and in about two hours' time they returned again into the court, erected upon a scaffold in westminster-hall; and after they were seated in their places, the lord high steward being seated in his chair before the throne, spoke to the lords thus: lord high steward--will your lordships proceed to give your judgment? lords--ay, ay. then the lord high steward asked this question of every one of the lords there present, beginning with the puisne baron, which was the lord bernard. lord high steward--my lord bernard, is edward earl of warwick guilty of the felony and murder whereof he stands indicted, or not guilty? the lord bernard stood up in his place uncovered, and laying his right hand upon his breast pronounced his judgment thus: lord bernard--not guilty of murder, but guilty of manslaughter, upon my honour. the same question was asked severally of all the lords, who in the same form delivered the same opinion. then the lord high steward reckoned up the number of peers present, and the opinions that were given, and announced that there were present, and that they had all acquitted lord warwick of murder, but had found him guilty of manslaughter. lord warwick was then called in, the judgment was announced to him, and he was asked what he had to say why judgment of death should not be pronounced against him according to law. and he claimed the benefit of his peerage, under the statute of edward the th. lord high steward--my lord, your lordship has demanded the benefit of your peerage upon the statute of edward the th, and you must have it by law; but i am directed by their lordships to acquaint you that you cannot have the benefit of that statute twice; therefore, i am likewise directed by their lordships to say that they hope you will take a more than ordinary care of your behaviour for the future, that so you may never hereafter fall into such unfortunate circumstances as you have been now under; my lords hope this will be so sensible a warning, that nothing of this kind will ever happen to you again; your lordship is now to be discharged. lord high steward--is it your lordships' pleasure to adjourn to the house of lords? lords--ay, ay. lord high steward--this house is adjourned to the house of lords. then the lords went in procession, in the same order that they came into the court. the next day lord mohun was tried on a similar indictment before the same court. and most of the same witnesses having given the same evidence again, he was acquitted and discharged. he then expressed himself thus: lord mohun--my lords, i do not know which way to express my great thankfulness and acknowledgment of your lordships' great honour and justice to me; but i crave leave to assure your lordships, that i will endeavour to make it the business of the future part of my life, so to behave myself in my conversation in the world, as to avoid all things that may bring me under any such circumstances, as may expose me to the giving your lordships any trouble of this nature for the future. then proclamation was made dissolving the commission, and the court adjourned. * * * * * as is well known, the duel described in this trial is the original of that described in _esmond_ between lord castlewood and lord mohun; it may therefore be of interest to transcribe a few passages out of the latter work, premising only that there seems to be some faint relationship between captain macartney, lord mohun's second in his duel with lord castlewood, and the lord macartney who afterwards assisted him in the same capacity in his final meeting with the duke of hamilton. lord castlewood, as will be remembered, had come up to london to fight lord mohun, really on account of his relations with lady castlewood, nominally as the result of a quarrel at cards, which it was arranged should have all the appearance of taking place. lord castlewood, jack westbury, and harry esmond all meet together at the 'trumpet,' in the cockpit, whitehall. when we had drunk a couple of bottles of sack, a coach was called, and the three gentlemen went to the duke's playhouse, as agreed. the play was one of mr. wycherley's--_love in a wood_. harry esmond has thought of that play ever since with a kind of terror, and of mrs. bracegirdle, the actress who performed the girl's part in the comedy. she was disguised as a page, and came and stood before the gentlemen as they sat on the stage, and looked over her shoulder with a pair of arch black eyes, and laughed at my lord, and asked what ailed the gentleman from the country, and had he had bad news from bullock fair? between the acts of the play the gentlemen crossed over and conversed freely. there were two of lord mohun's party, captain macartney, in a military habit, and a gentleman in a suit of blue velvet and silver, in a fair periwig with a rich fall of point of venice lace--my lord the earl of warwick and holland. my lord had a paper of oranges, which he ate, and offered to the actresses, joking with them. and mrs. bracegirdle, when my lord mohun said something rude, turned on him, and asked him what he did there, and whether he and his friends had come to stab anybody else, as they did poor will mountford? my lord's dark face grew darker at this taunt, and wore a mischievous, fatal look. they that saw it remembered it, and said so afterward. when the play was ended the two parties joined company; and my lord castlewood then proposed that they should go to a tavern and sup. lockit's, the 'greyhound,' in charing cross was the house selected. all three marched together that way, the three lords going a-head.' at the 'greyhound' they play cards, and esmond tries in vain to quarrel with mohun himself. my lord mohun presently snuffed a candle. it was when the drawers brought in fresh bottles and glasses and were in the room--on which my lord viscount said, 'the deuce take you, mohun, how damned awkward you are. light the candle, you drawer.' 'damned awkward is a damned awkward expression, my lord,' says the other. 'town gentlemen don't use such words--or ask pardon if they do.' 'i'm a country gentleman,' says my lord viscount. 'i see it by your manner,' says my lord mohun. 'no man shall say damned awkward to me.' 'i fling the words in your face, my lord,' says the other; 'shall i send the cards too?' 'gentlemen, gentlemen! before the servants?' cry out colonel westbury and my lord warwick in a breath. the drawers go out of the room hastily. they tell the people below of the quarrel upstairs. 'enough has been said,' says colonel westbury. 'will your lordships meet to-morrow morning?' 'will my lord castlewood withdraw his words?' asks the earl of warwick. 'my lord castlewood will be ---- first,' says colonel westbury. 'then we have nothing for it. take notice, gentlemen, there have been outrageous words--reparation asked and refused.' 'and refused,' says my lord castlewood, putting on his hat. 'where shall the meeting be? and when?' 'since my lord refuses me satisfaction, which i deeply regret, there is no time so good as now,' says my lord mohun. 'let us have chairs, and go to leicester field.' 'are your lordship and i to have the honour of exchanging a pass or two?' says colonel westbury, with a low bow to my lord of warwick and holland. 'it is an honour for me,' says my lord, with a profound congée, 'to be matched with a gentleman who has been at mons and namur.' 'will your reverence permit me to give you a lesson?' says the captain. 'nay, nay, gentlemen, two on a side are plenty,' says harry's patron. 'spare the boy, captain macartney,' and he shook harry's hand for the last time, save one, in his life. at the bar of the tavern all the gentlemen stopped, and my lord viscount said, laughing, to the bar-woman, that those cards set people sadly a-quarrelling; but that the dispute was over now, and the parties were all going away to my lord mohun's house, in bow street, to drink a bottle more before going to bed. a half-dozen of chairs were now called, and the six gentlemen stepping into them, the word was privately given to the chairmen to go to leicester field, where the gentlemen were set down opposite the 'standard tavern.' it was midnight, and the town was a-bed by this time, and only a few lights in the windows of the houses; but the night was bright enough for the unhappy purpose which the disputants came about; and so all six entered into that fatal square, the chairmen standing without the railing and keeping the gate, lest any persons should disturb the meeting. all that happened there hath been matter of public notoriety, and is recorded, for warning to lawless men, in the annals of our country. after being engaged for not more than a couple of minutes, as harry esmond thought (though being occupied at the time with his own adversary's point, which was active, he may not have taken a good note of time) a cry from the chairmen without, who were smoking their pipes, and leaning over the railings of the field as they watched the dim combat within, announced that some catastrophe had happened, which caused esmond to drop his sword and look round, at which moment his enemy wounded him in the right hand. but the young man did not heed this hurt much, and ran up to the place where he saw his dear master was down. my lord mohun was standing over him. 'are you much hurt, frank?' he asked in a hollow voice. 'i believe i'm a dead man,' my lord said from the ground. 'no, no, not so,' says the other; 'and i call god to witness, frank esmond, that i would have asked your pardon, had you but given me a chance. in--in the first cause of our falling out, i swear that no one was to blame but me, and--and that my lady----' 'hush!' says my poor lord viscount, lifting himself on his elbow and speaking faintly. 'twas a dispute about the cards--the cursed cards. harry, my boy, are you wounded too? god help thee! i loved thee, harry, and thou must watch over my little frank--and--and carry this little heart to my wife.' and here my dear lord felt in his breast for a locket he wore there, and, in the act, fell back fainting. we were all at this terrified, thinking him dead; but esmond and colonel westbury bade the chairmen come into the field; and so my lord was carried to one mr. aimes, a surgeon, in long acre, who kept a bath, and there the house was wakened up, and the victim of this quarrel carried in. footnotes: [ ] charles, fifth baron mohun ( ?- ), was the eldest son of the fourth baron, who died from a wound received in a duel when his son was about two years old. he fought his first duel in , breaking out of his lodgings, where he was confined in consequence of a quarrel over dice, for the purpose, with the assistance of the earl of warwick of the present case, the grandson of the lord holland of the civil war. this encounter ended in both combatants being disarmed. two days later he abetted in the murder of mountfort, an actor. one captain hill was in love with mrs. bracegirdle, the famous actress, and supposed that he had cause to be jealous of the attentions she received from mountfort, the equally eminent actor. accordingly hill and mohun formed a plan (estimated to cost £ in all) to carry off the lady as she came out of the theatre: and providing themselves with a coach-and-six and a body of soldiers set out on the enterprise. they missed mrs. bracegirdle at the theatre, but found her by chance coming out of a house in drury lane where she had supped. the attempt to carry her off in the coach failed, owing to the vigorous resistance made by her friends. hill and mohun, however, were allowed to escort her to her lodgings in howard street, where they saw her safely home. mountfort lived in norfolk street, at the bottom of howard street; and as he was passing down the latter some two hours later, he was accosted by mohun in a more or less friendly way; but while they were talking together, he was attacked and killed by hill, who did not give him time to draw his sword. hill fled, but mohun was tried by his peers in westminster hall, january - . the trial excited great interest partly owing to the youth of the prisoner, and on a question being raised as to the degree of complicity necessary to constitute his guilt, he was acquitted. a report of the trial will be found in _state trials_, xii. . there are also some picturesque references to it in chapter xix. of macaulay's _history_. mohun fought another duel in , served for two years in flanders, returned to england, and fought a duel with captain bingham in st. james's park, which was interrupted by the sentries. the same year he was present at the death of captain hill, in the rummer tavern. the present case occurred in , and seems to have closed his career as a rake. he was sent under lord macclesfield on a mission to present the electress-dowager sophia with a copy of the act of succession, and he frequently took part in debates in the house of lords. after lord macclesfield's death he became entangled in a long course of litigation with the duke of hamilton; and on their meeting in master's chambers, remarks passed between them which led to a duel, when both were killed. the tories suggested that the whigs had arranged the duel in order to get rid of mohun because they were tired of him, and hamilton, because they wanted to prevent his projected embassy to france. [ ] john lord somers ( - ) was born at whiteladies, near worcester, educated at trinity college, oxford, and called in . he appeared as junior counsel in the trial of the seven bishops, at the instance of pollexfen (see vol. i. p. ), and took a conspicuous part in the settlement of the monarchy after the revolution, being an influential member of the committee which drafted the declaration of rights. he became solicitor-general in , and attorney-general in , in which capacity it is curious to notice that he conducted the prosecution of lord mohun for the murder of mountfort (see _ante_, p. ). he became william iii.'s first lord keeper in - , and lord chancellor in . during all this time he was one of william's most trusted advisers, and was consulted by him on the most confidential questions relating to foreign policy. he was also familiar with the leading literary and scientific men of his time, being responsible for addison's pension, and receiving the dedication of the _tale of a tub_ from swift. he also conferred favours on rymer and madox. he resigned the great seal in after a motion for his perpetual exclusion from the presence of the king had been defeated by a small majority in the house of commons; having already lost the king's confidence by the position he adopted in regard to william's propositions for a standing army, and attracted the hostility of the country partly by his opposition to the bill for the resumption of the grants of forfeited irish estates. he played a conspicuous part in the reign of queen anne as the head of the whig junto formed at the beginning of that reign, but never resumed office. [ ] sir nathan wright ( - ), born of an essex family, was educated at emmanuel college, and was called in . he was junior counsel for the crown in the trial of the seven bishops, and opened the pleadings. he became serjeant in . on the retirement of lord somers in , a difficulty was found in providing a successor, and eventually the post of lord chancellor was offered to, and accepted by, wright. he enjoyed no reputation, good or bad, as a judge, except that he was very slow, and generally considered unfit for the place. after holding office for five years he was dismissed on the accession to power by the whigs in . speaking of his appointment as lord chancellor, lord campbell says, 'the occasional occurrence of such elevations seems wisely contrived by providence to humble the vanity of those who succeed in public life, and to soften the mortification of those who fail.' [ ] thomas lord trevor ( ?- ) was the son of a secretary of state of charles ii. he was called in , became a bencher in , solicitor-general in , attorney-general in . he refused to succeed lord somers in ; but in succeeded sir george treby as chief-justice of the common pleas. he was re-appointed by queen anne, and was one of the twelve peers created by her in to create a majority in the house of lords. he was removed from office in on the accession of george i.; but leaving the tory party, which he had joined in anne's reign, became lord privy seal in , and president of the council in , but died six weeks afterwards. he enjoyed a reputation as a good judge; but is chiefly remembered for his proper conduct of crown prosecutions as attorney-general after the revolution. [ ] benefit of clergy was originally the right of the clergy to be exempt from the jurisdiction of the lay courts, and to be handed over to the ordinary to make 'purgation.' this the accused clerk did by swearing to his own innocence and producing twelve compurgators who swore to the same effect. he was then 'usually acquitted' by a jury of twelve clerks; but otherwise he was degraded and put to penance. the right itself was gradually restricted: partly by a construction of the statute of westminster the first ( ), by which it was held to be necessary that the clerk should be indicted before he could claim his benefit; partly by the practice prevailing in the time of henry vi. that he must first be convicted. meanwhile its scope had been largely increased by its extension in to all lay clerks, who were taken to mean persons capable of reading. the law, however, which was applicable to the present case depended on two statutes, henry vii., c. , and elizabeth, c. ; by the former any person allowed his clergy was to be branded, and was not to be allowed it again unless he was actually in orders; by the latter purgation was abolished, and any person taking benefit of clergy was to be discharged from prison subject to the power of the judge to imprison him for a year. by a statute of edward _vi._ also, a peer ('though he cannot read') was allowed a privilege equivalent to benefit of clergy, but was not to be branded. a certain number of offences were excluded from benefit of clergy during earlier times, and a great number during the eighteenth century, at the beginning of which the privilege was extended to all prisoners. finally, the system was abolished in . how this system, occupying as it did an important position in the criminal procedure of this country till a comparatively modern date, impresses a lawyer of the present day, may best be described in the words of sir james stephen:--'of this branch of the law, blackstone characteristically remarks that the english legislature "in the course of a long and laborious process, extracted by noble alchemy rich medicines out of poisonous ingredients." according to our modern views it would be more correct to say that the rule and the exception were in their origin equally crude and barbarous, that by a long series of awkward and intricate changes they were at last worked into a system which was abolished in a manner as clumsy as that in which it was constructed' (_history of the criminal law_, vol. i. p. ).... 'the result of this was to bring about, for a great length of time, a state of things which must have reduced the administration of justice to a sort of farce. till any one who knew how to read might commit murder as often as he pleased, with no other result, than that of being delivered to the ordinary to make his purgation, with the chance of being delivered to him _absque purgatione_. that this should have been the law for several centuries seems hardly credible, but there is no doubt that it was. even after , a man who could read could commit murder once with no other punishment than that of having m. branded on the brawn of his left thumb, and if he was a clerk in orders he could, till , commit any number of murders apparently without being branded more than once' (_ibid._, vol. i. p. ). [ ] convicted felons were incompetent as witnesses till the passing of lord denman's act in . [ ] sir john hawles ( - ) was born in salisbury of a dorsetshire family. he was educated at winchester and queen's college, oxford. in he sat in the house of commons for old sarum; he succeeded sir thomas trevor as solicitor-general in and so remained till . he afterwards represented various western boroughs in parliament, most of them cornish. he was one of the managers of sacheverell's impeachment in . he died at upwinborne. [ ] sir thomas powys ( - ), of a shropshire family, was educated at shrewsbury, and was called in . he became solicitor-general in , and as a supporter of the dispensing power became attorney-general in . as such he conducted the prosecution of the seven bishops. he frequently appears for the defence in state trials during the reign of william iii. he represented ludlow in parliament from to , was made a serjeant at the beginning of anne's reign, and a judge of the queen's bench in . he was, however, removed from the bench on the accession of george i. [ ] to a modern practitioner to whom benefit of clergy is merely an archæological puzzle, it would seem that the proper argument was that the imprisonment was a punishment, and that as french had not been imprisoned he was quit of the law; but two centuries make a great deal of difference in arguments on points of law. [ ] sir george treby ( - ), the son of a devon gentleman, entered exeter college in , and was called in . he represented his native town of plympton in the house of commons in both parliaments in , and was a manager in the impeachment of lord stafford. he succeeded jeffreys as recorder of london in , but was removed after the success of the _quo warranto_ proceedings. he sat in the oxford parliament of , and resumed his seat as recorder after the arrival of the prince of orange. he afterwards re-entered parliament, succeeded pollexfen as solicitor-general in , as attorney-general in the same year, and as lord chief-justice of the common pleas in . [ ] edward ward was called in , and was engaged to assist lord russell in his trial. he was a candidate for the office of sheriff of london in the famous election of (_ante_, pp. , ). he refused a judgeship at the revolution; became attorney-general in , and chief baron in . he died in . he was an ancestor of the late mr. g. ward hunt. [ ] sir edward nevill was called in . he was knighted in , on presenting an address to charles ii. as recorder of bath. he became serjeant in , and a baron of the exchequer in . he was dismissed six months afterwards for refusing to support the royal assumption of the dispensing power. fosse gives a striking extract from his evidence before parliament in , to show how the power of the executive was actually brought to bear on the stewart judges. he was restored to his office after the revolution, removed to the common pleas in , and died in . spencer cowper and others spencer cowper,[ ] a barrister; ellis stephens and william rogers, attorneys; and john marston, a scrivener, were indicted at the hertford summer assizes in for the murder of sarah stout, on the th of the previous march. they were tried at the same assizes, before baron hatsell,[ ] on the th of july. the indictment alleged that they had murdered sarah stout by strangling her, and had then thrown her body into the priory river to conceal the body. to this, all the prisoners pleaded not guilty. _jones_ appeared for the prosecution; cowper defended himself, and practically the other prisoners as well. the prisoners agreed that cowper's challenges should be taken to be the challenges of all of them; and enough jurors were then challenged to exhaust the panel. accordingly, after some discussion, jones was called upon to show cause for his challenges. clerk of arraigns--call daniel clarke. hatsell, baron--mr. jones, if you can say any juryman hath said anything concerning the cause, and given his verdict by way of discourse, or showed his affection one way or the other, that would be good cause of challenge. jones--my lord, then we should keep you here till to-morrow morning. hatsell, baron--if there hath been any great friendship between any juryman and the party, it will look ill if it is insisted upon. cowper--my lord, i do not insist upon it, but i profess i know of no friendship, only that mr. clarke in elections hath taken our interest in town; i know i have a just cause, and i am ready to be tried before your lordship and any fair jury of the county; therefore i do not insist upon it. a jury was then sworn, and _jones_ opened the case for the prosecution. jones--may it please your lordship, and you gentlemen that are sworn, i am of counsel for the king in this cause, and it is upon an indictment by which the gentlemen at the bar stand accused for one of the foulest and most wicked crimes almost that any age can remember; i believe in your county you never knew a fact of this nature; for here is a young gentlewoman of this county strangled and murdered in the night time. the thing was done in the dark, therefore the evidence cannot be so plain as otherwise might be. after she was strangled and murdered, she was carried down into a river to stifle the fact, and to make it supposed she had murdered herself; so that it was indeed, if it prove otherwise, a double murder, a murder accompanied with all the circumstances of wickedness and villainy that i remember in all my practice or ever read of. this fact, as it was committed in the night time, so it was carried very secret, and it was very well we have had so much light as we have to give so much satisfaction; for we have here, in a manner, two trials; one to acquit the party that is dead, and to satisfy the world, and vindicate her reputation, that she did not murder herself, but was murdered by other hands. for my part, i shall never, as counsel in the case of blood, aggravate; i will not improve or enlarge the evidence at all; it shall be only my business to set the fact as it is, and to give the evidence, and state it as it stands here in my instructions. my lord, for that purpose, to lead to the fact, it will be necessary to inform you, that upon monday the th of march, the first day of the last assizes here, mr. cowper, one of the gentlemen at the bar, came to this town, and lighted at mr. barefoot's house, and staid there some time, i suppose to dry himself, the weather being dirty, but sent his horse to mrs. stout's, the mother of this gentlewoman. some time after he came thither himself, and dined there, and staid till four in the afternoon; and at four, when he went away, he told them he would come and lodge there that night, and sup. according to his word he came there, and had the supper he desired; after supper mrs. stout, the young gentlewoman, and he sat together till near eleven o'clock. at eleven o'clock there was orders given to warm his bed, openly to warm his bed in his hearing. the maid of the house, gentlemen, upon this went up stairs to warm his bed, expecting the gentleman would have come up and followed her before she had done; but it seems, while she was warming his bed, she heard the door clap together; and the nature of that door is such, that it makes a great noise at the clapping of it to, that any body in the house may be sensible of any one's going out. the maid upon this was concerned, and wondered at the meaning of it, he promising to lie there that night; she came down, but there was neither mr. cowper nor mrs. stout; so that we suppose, and for all that we can find and learn, they must go out together. after their going out, the maid and mother came into the room; and the young gentlewoman not returning, nor mr. cowper, they sat up all night in the house, expecting what time the young gentlewoman would return. the next morning, after they had sat up all night, the first news of this lady was, that she lay floating and swimming in water by the mill dam. upon that there was several persons called; for it was a surprize how this should come to pass. there she lay floating with her petticoats and apron, but her night rail and morning gown were off, and one of them not found till some time after; and the maid will give you an account how it came to be found. this made a great noise in the country; for it was very extraordinary, it happening that from the time the maid left mr. cowper and this young gentlewoman together, she was not seen or heard of till next morning, when she was found in this condition, with her eyes broad open, floating upon the water. when her body came to be viewed, it was very much wondered at; for in the first place, it is contrary to nature, that any persons that drown themselves should float upon the water. we have sufficient evidence, that it is a thing that never was; if persons come alive into the water, then they sink; if dead, then they swim; that made some more curious to look into this matter. at first, it was thought that such an accident might happen, though they could not imagine any cause for this woman to do so, who had so great prosperity, had so good an estate, and had no occasion to do an action upon herself so wicked and so barbarous, nor cannot learn what reason she had to induce her to such a thing. upon view of the body, it did appear there had been violence used to the woman; there was a crease round her neck, she was bruised about her ear; so that it did seem as if she had been strangled either by hands or a rope. gentlemen, upon the examination of this matter, it was wondered how this matter came about, it was dark and blind. the coroner at that time, nor these people, had no evidence given, but the ordinary evidence, and it passed in a day. we must call our witnesses to this fact, that of necessity you must conclude she was strangled, and did not drown herself. if we give you as strong a proof as can be upon the nature of the fact, that she was strangled, then the second matter under that enquiry will be, to know who, or what persons, should be the men that did the fact. i told you before, it was, as all wicked actions are, a matter of darkness, and done in secret to be kept as much from the knowledge of men as was possible. truly, gentlemen, as to the persons at the bar, the evidence of the fact will be very short, and will be to this purpose. mr. cowper was the last man unfortunately in her company; i could wish he had not been so with all my heart; it is a very unfortunate thing, that his name should upon this occasion be brought upon the stage: but then, my lord, it was a strange thing, here happens to be three gentlemen; mr. marson, mr. rogers, and mr. stephens. as to these three men, my lord, i do not hear of any business they had here, unless it was to do this matter, to serve some interest or friend that sent them upon this message; for, my lord, they came to town (and in things of this nature it is well we have this evidence; but if we had not been straightened in time, it would have brought out more; these things come out slowly), these persons, mr. stephens, mr. rogers, and mr. marson, came to town here on the thirteenth of march last, the assize day. my lord, when they came to town, they came to an house, and took lodgings at one gurrey's; they took a bed for two, and went out of their lodging, having taken a room with a large bed in it; and afterwards they went to the glove and dolphin, and then about eight o'clock one marson came to them there; in what company they came, your lordship and the jury will know by and by; they staid there, my lord, at the glove from eight to eleven, as they say. at eleven these three gentlemen came all into their lodging together to this gurrey's. my lord, when they came in, it was very observable amongst them, unless there had been a sort of fate in it, first, that they should happen to be in the condition they were; and, secondly, fall upon the discourse they did at that time; for, my lord, they called for fire, and the fire was made them; and while the people of the house were going about, they observed and heard these gentlemen talk of mrs. sarah stout; that happened to be their discourse; one said to the other, marson, she was an old sweetheart of yours: ay, saith he, but she cast me off, but i reckon by this time a friend of mine has done her business. another piece of discourse was, i believe a friend of mine is even with her by this time. they had a bundle of linen with them, but what it was is not known, and one takes the bundle and throws it upon the bed; well, saith he, her business is done, mrs. sarah stout's courting days are over; and they sent for wine, my lord; so after they had drank of the wine they talked of it, and one pulled out a great deal of money; saith one to another, what money have you spent to-day? saith the other, thou hast had or pounds for thy share: saith the other, i will spend all the money i have, for joy the business is done. my lord, this discourse happened to be among them; which made people of the house consider and bethink themselves; when the next day they heard of this mrs. stout's being found in the water, this made them recollect and call to mind all these discourses. my lord, after these gentlemen had staid there all night, next morning, truly, it was observed (and i suppose some account will be given of it) that mr. cowper and they did meet together, and had several discourses, and that very day went out of town; and i think as soon as they came to hoddesden, made it all their discourse and business to talk of mrs. stout. my lord, we will call our witnesses, and prove all these facts that i have opened to your lordship; and then i hope they will be put to give you some account how all these matters came about. _call sarah walker_ (_who was sworn_). jones--mrs. walker, pray give an account to my lord and the jury, of mr. cowper's coming to your house the th of march, and what was done from his coming there at night to his going out? walker--may it please you, my lord, on friday before the last assizes, mr. cowper's wife sent a letter to mrs. stout, that she might expect mr. cowper at the assize time; and therefore we expected mr. cowper at that time, and accordingly provided; and as he came in with the judges, she asked him if he would alight? he said no; by reason i come in later than usual, i will go into the town and show myself, but he would send his horse presently. she asked him, how long it would be before he would come, because they would stay for him? he said, he could not tell, but he would send her word; and she thought he had forgot, and sent me down to know, whether he would please to come? he said, he had business, and he could not come just then; but he came in less than a quarter of an hour after, and dined there, and he went away at four o'clock: and then my mistress asked him, if he would lie there? and he answered yes, and he came at night about ; and he sat talking about half an hour, and then called for pen, ink and paper, for that, as he said, he was to write to his wife; which was brought him, and he wrote a letter; and then my mistress went and asked him, what he would have for supper? he said milk, by reason he had made a good dinner; and i got him his supper, and he eat it; after she called me in again, and they were talking together, and then she bid me make a fire in his chamber; and when i had done so, i came and told him of it, and he looked at me, and made me no answer; then she bid me warm the bed, which accordingly i went up to do as the clock struck eleven, and in about a quarter of an hour i heard the door shut, and i thought he was gone to carry the letter, and staid about a quarter of an hour longer, and came down, and he was gone and she; and mrs. stout the mother asked me the reason why he went out when i was warming his bed? and she asked me for my mistress, and i told her i left her with mr. cowper, and i never saw her after that nor did mr. cowper return to the house. she sat up all night; she next saw sarah stout when she had been taken out of the water the next morning. on being pressed, she was certain that it was a quarter after eleven by their clock when cowper left the house; their clock was half an hour faster than the town clock. cowper--pray, what account did you give as to the time before my lord chief-justice holt? walker--i gave the account that it was eleven, or quarter of an hour after. cowper--in her depositions there is half an hour's difference; for then she said it was half an hour after ten. hatsell, baron--which clock was earliest, yours or the town clock? walker--ours was half an hour faster than theirs. cowper--how came you to know this? walker--by reason that dinner was dressed at the cook's, and it was ordered to be ready by two o'clock, and it was ready at two by the town clock, and half an hour after two by ours. cowper--when you came down and missed your mistress, did you enquire after her all that night? walker--no, sir, i did not go out of the doors; i thought you were with her, and so i thought she would come to no harm. cowper--here is a whole night she gives no account of. pray, mistress, why did not you go after her? walker--my mistress would not let me. cowper--why would she not let you? walker--i said i would see for her? no, saith she, by reason if you go and see for her, and do not find her, it will make an alarm over the town, and there may be no occasion. cowper--did your mistress use to stay out all night? walker--no, never. cowper--have not you said so? walker--i never said so in my life. cowper--pray, mrs. walker, did you never take notice that your mistress was under melancholy? walker--i do not say but she was melancholy; she was ill for some time; and i imputed it to her illness, and i know no other cause. cowper--have you not often told people that your mistress was a melancholy person, upon your oath? walker--i have said she hath been ill, and that made her melancholy. the witness admitted that she had bought poison twice within the last six months; she bought it at her own instance, and not at the order of mrs. stout, or of mrs. crooke. she asked for white mercury. she bought it to poison a dog with; the dog used to come about the house and do mischief. it was another maid who gave it to the dog; she swore at the inquest that she had given it because she had seen it given; it was given in warm milk which did not seem discoloured. hatsell, baron--you said just now your mistress was ill, and that made her melancholy; what illness was it? walker--my lord, she had a great pain in her head. hatsell, baron--how long had she been troubled with it? walker--ever since last may was twelve months was the beginning of it. jones--did you ever find her in the least inclined to do herself a mischief? walker--no, i never did. cowper--you bought poison twice, did you give all the poison you bought to the dog? walker--yes. cowper--the first and the last? walker--yes, the whole. cowper--how much did you buy? walker--i am not certain how much i bought. cowper--pray, what mischief did it do the dog? walker--i cannot tell, he may be alive till now for aught i know. cowper--what mischief did the dog do? walker--a great deal, he threw down several things and broke them. jones--did mr. cowper, upon your oath, hear mistress stout give you order to make his fire, and warm his bed? walker--he knows best, whether he heard it or no; but he sat by her when she spake it. jones--did she speak of it so as he might hear? walker--yes, she did; for he was nearer than i. jones--and did not he contradict it? walker--not in the least. jones--was it the old or young woman that gave you the order? walker--the young woman. cowper--pray did the dog lap it, or did you put it down his throat, upon your oath? walker--no, he lapt it, upon my oath. jones--did mr. cowper send for his horse from your house the next day? walker--i cannot say that; i was not in the way. jones--did he come to your house afterwards? walker--no, i am sure he did not. jones--was the horse in your stable when it was sent for? walker--yes, sir. jones--and he did not come to your house again, before he went out of town? walker--no, sir. jones--do you know which way he went out of town? walker--no, sir. hatsell, baron--did mr. cowper use to lodge at your house at the assizes? walker--no, my lord, not since i came there; the sessions before he did. cowper--where did you come to invite me to dinner? walker--at mr. barefoot's. cowper--then you knew i was to lodge there? hatsell, baron--who wrote the letter on friday, that mr. cowper would lodge there? walker--i know not who wrote it, his wife sent it. jones--did he tell you he would lodge there that night before he went away? walker--when he went from dinner he said so. _james berry_ could not remember exactly which day it was that sarah stout was found in his mill; but he went out at six o'clock to shoot a flush of water and saw something floating in the water, and on going to see what it was, saw that it was part of her clothes. he did not see her face; no part of her body was above the water, only part of her clothes. the water might be about five foot deep and she might be about five or six inches under the water. she lay upon her side; when she was taken out her eyes were open. jones--was she swelled with water? berry--i did not perceive her swelled; i was amazed at it; and did not so much mind it as i should. jones--but you remember her eyes were staring open? berry--yes. jones--did you see any marks or bruises about her? berry--no. cowper--did you see her legs? berry--no, i did not. cowper--they were not above the water? berry--no. cowper--could you see them under the water? berry--i did not so much mind it. cowper--did she lie straight or double, driven together by the stream? berry--i did not observe. cowper--did you not observe the weeds and trumpery under her? berry--there was no weeds at that time thereabouts. jones--was the water clear? berry--no, it was thick water. jones--was there anything under her in the water to prevent her sinking? berry--no, i do not know there was; she lay on her right side, and her right arm was driven between the stakes, which are within a foot of one another. jones--did anything hinder her from sinking? berry--not that i saw. cowper--mr. berry, if i understand you right, you say her arm was driven between the stakes, and her head between the stakes; could you perceive her right arm, and where was her left arm? berry--within a small matter upon the water. hatsell, baron--did you see her head and arm between the stakes? berry--yes, her arm by one stake and her head by another. jones--did her arm hang down or how? berry--i did not mind so much as i might have done. _john venables_ and _leonard dell_ corroborated berry's account of the position of the body, the latter asserting that the right arm did not reach to the ground. _dell_ also helped to carry the body to land, but saw no bruises. hatsell, baron--when you took her out of the water, did you observe her body swelled? dell--we carried her into the meadow, and laid her on the bank-side, and there she lay about an hour, and then was ordered to be carried into the miller's. hatsell, baron--did you observe that any water was in the body? dell--none at all that i could see; but there was some small matter of froth came from her mouth and nostrils. juryman--my lord, i desire to know whether her stays were laced. dell--yes, she was laced. cowper--how was she taken out of the water? dell--my lord, we stood upon the bridge, i and another man, where she lay, and he laid hold of her and took her out. jones--and did you not perceive she was hung? dell--no, my lord. _john ulfe_ saw mrs. stout when she was taken out of the water; she lay there on one side; there was nothing at all to hold her up; she lay between a couple of stakes, but the stakes could not hold her up. _katherine dew, edward blackno, william edmunds, william page, william how, and john meager_ all gave the same account of the position and state of the body, dew and ulfe adding that her shoes and stockings were not muddy. jones--now, my lord, we will give an account how she was when she was stript, and they came to view the body. call john dimsdale, junior. (who was sworn.) dimsdale--my lord, i was sent for at night on tuesday the last assizes. cowper--my lord, if your lordship pleases, i have some physicians of note and eminency that are come down from london; i desire that they may be called into court to hear what the surgeons say. hatsell, baron--ay, by all means. cowper--my lord, there is dr. sloane, dr. garth, dr. morley, dr. gilstrop, dr. harriot, dr. wollaston, dr. crell, mr. william cowper, mr. bartlett, and mr. camlin. [who respectively appeared in court.] jones--give an account how you found mrs. stout. hatsell, baron--you are a physician, i suppose, sir? dimsdale[ ]--a surgeon, my lord. when i was sent for to mrs. stout's, i was sent for two or three times before i would go; for i was unwilling after i heard mrs. stout was drowned; for i thought with myself, what need could there be of me when the person was dead? but she still sent; and then i went with mr. camlin, and found a little swelling on the side of her neck, and she was black on both sides, and more particularly on the left side, and between her breasts up towards the collar-bone; and that was all i saw at that time, only a little mark upon one of her arms, and i think upon her left arm. jones--how were her ears? dimsdale--there was a settling of blood on both sides the neck, that was all i saw at that time. jones--how do you think she came by it? dimsdale--truly i only gave an account just as i say now to the gentlemen at that time, i saw no more of it at that time, but about six weeks after the body was opened by dr. phillips---- cowper--my lord, he is going to another piece of evidence and i would ask him---- jones--let us have done first; how was her ears? dimsdale--there was a blackness on both ears, a settling of blood. jones--call sarah kimpson. hatsell, baron--mr. cowper, now you may ask him anything, they have done with him. cowper--i would ask him, whether he was not employed to view these particular spots he mentions at the coroner's inquest? dimsdale--i was desired to look upon the face and arms, and breast, because they said there was a settling of blood there. cowper--when you returned to the coroner's inquest, what did you certify as your opinion? dimsdale--i did certify that there was a settling of blood; but how it came i could not tell. cowper--i ask you, sir, did not you say it was no more than a common stagnation usual in dead bodies? dimsdale--i do not remember a word of it. cowper--sir, i would ask you; you say the spot was about the collar-bone; was it above or below? dimsdale--from the collar-bone downwards. cowper--had she any circle about her neck? dimsdale--no; not, upon my oath. _sarah kimpson_ saw the body examined; she saw a great bruise behind the ear, as big as her hand, and another under her collar-bone. jones--did you see nothing about her neck? kimpson--nothing round her neck; on the side of her neck there was a mark. jones--was there any other part bruised? kimpson--only her left wrist, and her body was very flat and lank. she saw the body the day it was found; it was not swollen; she did not see any water about it. she had seen a child which was drowned in the same place about ten weeks before; it was drowned at night and found the next morning; it was found at the bottom of the river, the eyes were shut, and the body was very much swelled. _sarah peppercorn_ saw the body of sarah stout when it was brought to mrs. stout's house. she saw bruises on the head and near the ear. mrs. stout asked her whether her daughter had been with child, and she said she had not; she was a midwife. _elizabeth husler_ was sworn. jones--had you the view of the body of mrs. sarah stout the day you heard she was drowned? husler--she was not drowned, my lord; i went thither and helped to pull off her clothes. jones--in what condition was her body? husler--her body was very lank and thin, and no water appeared to be in it. there was no water about her mouth and nose; there were bruises at the top of the collar-bone and upon both her ears. _ann pilkington_ saw the body, and gave the same evidence as to its general condition as the other witnesses. cowper--had she any circle about her neck? pilkington--no, not that i did see. cowper--pray, did you not make some deposition to that purpose that you know of? pilkington--sir, i never did, and dare not do it. cowper--it was read against me in the king's bench, and i will prove it; was not mr. mead with you at the time of your examination? pilkington--yes. cowper--did he not put in some words, and what were they? pilkington--not that i know of. cowper--but you never swore so, upon your oath? pilkington--no, i do not believe i did; if i did it was ignorantly. jones--here is her examination, it is 'cross her neck.' _mr. coatsworth_, a surgeon, was called and deposed that in april he had been sent for, by dr. phillips, to come to hertford to see the body of mrs. stout, who had been six weeks buried. various parts of the body were examined; the woman had not been with child; the intestines and stomach were full of air, but there was no water in them, or the breast, or lobes of the lungs; there was no water in the diaphragm. then i remember i said, this woman could not be drowned, for if she had taken in water, the water must have rotted all the guts; that was the construction i made of it then; but for any marks about the head or neck, it was impossible for us to discover it, because they were so rotten. the inspection was made on the th of april, and the woman was drowned on the th of march. the doctor had offered to examine the skull, to see if it had been injured, 'but they did not suspect a broken skull in the case, and we did not examine it.' all the other parts were sound. jones--call john dimsdale. cowper--my lord, i would know, and i desire to be heard to this point; i think where the coroner's inquest have viewed the body, and the relations have been heard, and the body buried, that it is not to be stirred afterwards for any private inspection of parties, that intend to make themselves prosecutors; but if it is to be taken up, it is to be done by some legal authority; for if it should be otherwise, any gentleman may be easily trepanned: for instance, if they should have thought fit, after the coroner's view, to have broken the skull into a hundred pieces, this was a private view altogether among themselves. certainly, if they intended to have prosecuted me, or any other gentleman upon this evidence, they ought to have given us notice, that we might have had some surgeons among them, to superintend their proceedings. my lord, with submission, this ought not to be given in evidence. hatsell, baron--mr. cowper, i think you are not in earnest; there is no colour for this objection: if they did take up the body without notice, why should not that be evidence? unless you think they had a design to forswear themselves. cowper--had you a _melius inquirendum_, or any lawful warrant for making this inspection? coatsworth--no, there was not. hatsell, baron--suppose they did an ill thing in taking up the body without some order, though i do not know any more ill in taking up that body than any other; but, however, is that any reason why we should not hear this evidence? coatsworth--mr. camblin, sir wm. cowper's surgeon, was there by. _mr. dimsdale, senior_, a surgeon, was sworn and deposed that he had been sent for on the th of april by mrs. stout, to view the body of her daughter. finding her head so much mortified, down to her neck, we thought all the parts were seized, and had a consultation, whether we should open her or not; but mrs. stout was very enraged, because a great scandal had been raised, that her daughter was with child; and she said she would have her opened to clear her reputation. the body was examined, with the same result that the other witness had described, no water being found either in the stomach or the lungs. after this we had a consultation, to consider whether she was drowned or not drowned; and we were all of opinion that she was not drowned; only mr. camblin desired he might be excused from giving his opinion whether she was drowned or not; but all the rest of us did give our opinions that she was not drowned. the grounds for this opinion were the absence of water from the lungs and intestines; and this was a sign which would show whether she had been drowned or not weeks after her death. in answer to cowper he admitted that he had never seen a body opened which had been drowned six weeks. if a body had been drowned a fortnight, the bowels would be so rotten that it would be impossible to come near it. _john dimsdale, junior_, believed that the body had not been drowned, and signed a certificate to that effect after looking at the body; he believed it, because he found no water in the body. he had seen the child that was drowned the morning after it was drowned, and had found abundance of water in the body then. _dr. dimsdale_ saw the body after it was opened, and on finding no water in the thorax or abdomen, signed the certificate. had the woman been drowned he would have expected to find water in the thorax. cowper--is it possible there should be water in the thorax according to your skill? dimsdale--yes, we did think there would have been, if she had been drowned. he would have expected to find traces of it after six weeks. cowper--pray by what passage does the water go into the thorax? dimsdale--it will be very difficult for me to describe the manner here; but we should have found some in the stomach and intestines. cowper--pray, sir, how should it go into the thorax? dimsdale--by the lymphæduct, if carried by any means. no water would come into a body after it was dead, but he questioned whether or not it might come into the windpipe. cowper--sir, i would ask you, was you not angry that mr. camblin would not join with you in opinion? dimsdale--no. cowper--did you not tell him that you were a graduate physician, and was angry he would not join you? dimsdale--suppose i did? hatsell, baron--but did you so or no? dimsdale--yes, my lord, we had some words about it. jones--swear dr. coatsworth. (which was done.) now, my lord, we call these gentlemen that are doctors of skill, to know their opinions of them that are found floating without water in them, how they came by their death. dr. coatsworth--i have not seen many drowned bodies to make observation upon; but it is my opinion, that every body that is drowned, is suffocated by water passing down the windpipe into the lungs upon respiration; and at the same time, the water pressing upon the gullet, there will be a necessity of swallowing a great part of it into the stomach; i have been in danger of being drowned myself, and i was forced to swallow a great quantity of water. if a person was drowned, and taken out immediately, as soon as the suffocation was effected, i should not wonder if there were but little water in the stomach and guts; but if it lay in the water several hours, it must be very strange if the belly should not be full of water; but i will not say, it is impossible it should be otherwise. cowper--i desire to know, whether this gentleman attempted to drown himself, or was in danger of being drowned by accident? dr. coatsworth--it was by accident: i was passing up the ship-side, and took hold of a loose rope instead of the entering rope, which failing me, i fell into the water. cowper--but you struggled to save yourself from drowning? dr. coatsworth--i did so; i have seen several persons that have been drowned, and they have lain several days, until by fermentation they have been raised; but i never made my observations of any persons that have been drowned above six hours. jones--did you ever hear of any persons that, as soon as they were drowned, had swam above water? dr. coatsworth--i have not known such a case. cowper--did you ever know, sir, a body that was otherwise killed, to float upon the water? dr. coatsworth--i never made any observation of that. hatsell, baron--dr. browne has a learned discourse, in his _vulgar errors_, upon this subject, concerning the floating of dead bodies; i do not understand it myself, but he hath a whole chapter about it.[ ] _then dr. nailor was sworn._ jones--we ask you the same question that dr. coatsworth was asked, what is your opinion of dead bodies? if a body be drowned, will it have water in it or no? dr. nailor--my lord, i am of opinion, that it will have a quantity if it be drowned; but if there be no water in the body, i believe that the person was dead before it was put into the water. cowper--i would ask the doctor one question, my lord, whether he was not a constant voter against the interest of our family in this corporation? dr. nailor--i never did come to give a vote but sir william cowper, or his son, opposed me, and said i had no right to vote. cowper--i would have asked the same question of the dimsdales, if i had remembered it; they are of another party, as this gentleman is. hatsell, baron--it is not at all material, as they are witnesses. then call mr. babington. (who was sworn.) jones--pray, what is your opinion of this matter? babington--i am of opinion, that all bodies that go into the water alive and are drowned, have water in them, and sink as soon as they are drowned, and do not rise so soon as this gentlewoman did. cowper--pray, what is your profession, sir? babington--i am a surgeon. cowper--because mr. jones called you doctor. hatsell, baron--did you ever see any drowned bodies? babington--yes, my lord, once i had a gentlewoman a patient that was half an hour under water, and she lived several hours after, and in all that time she discharged a great quantity of water; i never heard of any that went alive into the water, and were drowned, that floated so soon as this gentlewoman did; i have heard so from physicians. hatsell, baron--i have heard so too, and that they are forced to tye a bullet to dead bodies thrown into the sea, that they might not rise again. cowper--the reason of that is, that they should not rise again, not that they will not sink without it. but i would ask mr. babington, whether the gentlewoman he speaks of went into the water voluntarily, or fell in by accident? babington--by accident, but i believe that does not alter the case. _dr. burnet_ was called, and expressed an opinion that if a person jumped into the water or fell in by accident they would swallow and inhale water as long as they were alive, but not afterwards; and that they would sink. _dr. woodhouse_ expressed the same opinion. if a person had swallowed water in drowning, signs of it would be visible some time afterwards. jones--call edward clement. (who was sworn.) are not you a seaman? clement--yes, sir. jones--how long have you been so? clement--man i have writ myself but six years, but i have used the sea nine or ten years. jones--have you known of any men that have been killed, and thrown into the sea, or who have fallen in and been drowned? pray tell us the difference as to their swimming and sinking. clement--in the year ' or ' , in beachy fight, i saw several thrown overboard during the engagement, but one particularly i took notice of, that was my friend, and killed by my side; i saw him swim for a considerable distance from the ship; and a ship coming under our stern, caused me to lose sight of him, but i saw several dead bodies floating at the same time; likewise in another engagement, where a man had both his legs shot off, and died instantly, they threw over his legs; though they sunk, i saw his body float: likewise i have seen several men who have died natural deaths at sea, they have when they have been dead had a considerable weight of ballast and shot made fast to them, and so were thrown overboard; because we hold it for a general rule, that all men swim if they be dead before they come into the water; and on the contrary, i have seen men when they have been drowned, that they have sunk as soon as the breath was out of their bodies, and i could see no more of them. for instance, a man fell out of the _cornwall_, and sunk down to rights, and seven days afterwards we weighed anchor, and he was brought up grasping his arm about the cable, and we have observed in several cases, that where men fall overboard, as soon as their breath is out of their bodies they sink downright; and on the contrary, where a dead body is thrown overboard without weight, it will swim. jones--you have been in a fight; how do bodies float after a battle? clement--men float with their heads just down, and the small of their back and buttocks upwards; i have seen a great number of them, some hundreds in beachy-head fight, when we engaged the french. i was in the old _cambridge_ at that time. i saw several (what number i will not be positive, but there were a great number, i cannot guess to a score) that did really swim, and i could see them float for a considerable distance. jones--have you seen a shipwreck? clement--yes; the _coronation_, in september . i was then belonging to the _dutchess_, under the command of captain clement; we looked out and see them taking down their masts; we saw the men walking up and down on the right side, and the ship sink down, and they swam up and down like a shoal of fish one after another; and i see them hover one upon another and see them drop away by scores at a time; and there was an account of about nineteen that saved themselves, some by boats, and others by swimming; but there were no more saved out of the ship's complement, which was between five and six hundred, and the rest i saw sinking downright, some twenty at a time. there was a fisherman brought our captain word, that in laying in of his nets he drew up some men close under the rocks that were drowned belonging to the _coronation_. we generally throw in bags of ballast with them. jones--i suppose all men that are drowned, you sink them with weights? clement--formerly shot was allowed for that purpose; there used to be threescore weight of iron, but now it is a bag of ballast that is made fast to them. jones--then, you take it for a certain rule, that those that are drowned sink, but those that are thrown overboard do not? clement--yes; otherwise why should the government be at that vast charge to allow threescore or fourscore weight of iron to sink every man, but only that their swimming about should not be a discouragement to others? _then richard gin was sworn._ jones--you hear the question; pray what do you say to it? gin--i was at sea a great while, and all the men that i see turned overboard had a great weight at their heels to sink them. jones--then will they swim otherwise? gin--so they say. jones--are you a seaman? gin--i went against my will in two fights. jones--then, gentlemen of the jury, i hope we have given you satisfaction that mrs. stout did not drown herself, but was carried into the water after she was killed. that was the first question; for if it be true that all dead bodies when they are put into the water do swim, and the bodies that go alive into the water and are drowned do sink, this is sufficient evidence that she came by her death not by drowning, but some other way. now, my lord, as to the second matter, and that is to give such evidence as we have against these gentlemen at the bar. mr. cowper, it appears, was the last man that any one give an account of was in her company. what became of her afterwards, or where they went, nobody can tell; but the other witnesses have given you evidence that he was the last man that was with her. i shall only give this further evidence as to mr. cowper, that notwithstanding all the civility and kindnesses that passed between him and this family, when the bruit and noise of this fact was spread abroad, mr. cowper did not come to consider and consult with old mrs. stout what was to be done; but he took no manner of notice of it, and the next day he rode out of town, without further taking notice of it. call _george aldridge_ and _john archer_. _john archer was sworn._ jones--do you know anything of mr. cowper's going out of town about this business of mrs. stout's being drowned? archer--yes, i did see him go out of town afterwards. jones--which way did he go? archer--he went the way back from the glove; i suppose he came that way. cowper--what day was it i went? is it not the way that i used to go when i go the circuit into essex? archer--yes, i believe so. cowper--i lodged at mr. barefoot's, and he has a back-door to the glove, where my horse was, and i went the direct way into essex, and it was wednesday morning: what day was it you see me go? archer--it was on the wednesday morning. cowper--that was the very day i went into essex. _then george aldridge was sworn._ jones--when did mr. cowper go out of town the last assizes? aldridge--on wednesday. jones--which way did he go? aldridge--he went the way to chelmsford. jones--did you not fetch his horse from stout's? aldridge--yes, sir. jones--how often did you go for it? aldridge--three times. jones--when? aldridge--on tuesday night i sent once, and went twice myself; the first time there was nobody at home to deliver the horse; so i went to mr. stout's, and asked him about the horse, and he said he could not deliver him till the maid went home; and then i went about eleven o'clock and had the horse. hatsell, baron--was it eleven at night? aldridge--yes, my lord. cowper--when i sent you to fetch my horse, what directions did i give you? aldridge--you gave me directions to fetch your horse, because you said you should have occasion to go out next morning betimes with the judge. cowper--the reason i sent for my horse was this; when i heard she had drowned herself, i think it concerned me in prudence to send a common hostler for him, for fear the lord of the manor should seize all that was there as forfeited.[ ] hatsell, baron--there was no danger of that, for she was found _non compos mentis_. cowper--no, my lord, i sent before the verdict. jones--it seems you did not think fit to go and take horse there yourself, though you put your horse there. now, my lord, we will go on, and give the other evidence that we opened concerning these three other gentlemen that came to town; two of them took lodgings at gurrey's at five in the afternoon, but did not come in till between eleven and twelve, and then they brought another in with them; and though he had been in town five or six hours, his feet were wet in his shoes, and his head was of a reeky sweat; he had been at some hard labour i believe, and not drinking himself into such a sweat. call _john gurrey_, _matthew gurrey_, and _elizabeth gurrey_. _john gurrey was sworn._ jones--do you know any of the gentlemen at the bar? j. gurrey--yes. jones--name who you know. j. gurrey--there is mr. stephens, mr. rogers, and mr. marson. jones--pray do you remember when they took lodging at your house? j. gurrey--the last assizes; when they first came, there was only mr. stephens and mr. rogers. jones--at what time did they take it? j. gurrey--i was at church, and cannot tell that, they hired the lodgings of my wife. jones--what can you say more? j. gurrey--i was in at night when they came; there came three of them at eleven at night, whereof mr. marson was the third person and he said he was destitute of a lodging and he asked for a spare bed; my wife told him she had one, but had let it; whereupon mr. stevens and mr. rogers said he should lodge with them; so they went up altogether, and they called for a fire to be kindled, and asked for the landlord, which was i, and they asked me to fetch a bottle of wine, and i told them i would fetch a quart, which i did, and then they asked me to sit down and drink with them, which i did; and then they asked me if one mrs. sarah stout did not live in the town, and whether she was a fortune? i said yes. then they said they did not know how to come to the sight of her; and i said i would shew them her to-morrow morning, not questioning but i might see her sometime as she was coming down the street; so they said they would go to see her. mr. rogers and mr. stephens charged mr. marson with being her old sweet-heart; saith mr. marson, she hath thrown me off, but a friend of mine will be even with her by this time. hatsell, baron--what o'clock was it then? j. gurrey--i reckon eleven of the clock when they came in. hatsell, baron--did you observe in what condition mr. marson was in? j. gurrey--i did not observe, only that he was hot, and put by his wig; i see his head was wet, and he said he was just come from london, and that made him in such a heat. jones--had he shoes or boots on? j. gurrey--i did not observe that. jones--what did they do the next day? j. gurrey--the next morning i heard this party was in the water; i sat up all night, and was fain to wait till my daughter came down to look after the shop; and then i went to see her, and she removed into the barn, and they were wiping her face, closing her eyes, and putting up her jaws; and as i came back these persons were walking, and i met mr. marson and mr. stephens, and told them the news; said i, this person has come to a sad accident: say they, so we hear; but nevertheless we will be as good as our word, and go and see her. i went with them and overtook mr. rogers; and marson said we are going to see mrs. stout. 'o landlord!' said rogers, 'you may take up that rogue' (pointing at mr. marson) 'for what he said last night'; but i did not think, they speaking so jocularly, that there was any suspicion of their being concerned in the murder. a second time i went, the barn-door was locked; i knocked, and they opened it, and let us in, and they uncovered her face to let me see her, and i touched her; and looking about for them they were gone, and i cannot say they see her or touched her: then mr. marson and they were consulting how to send a great-coat to london, and i directed them to a coachman at the bell-inn; but i did not hear he went to enquire after the coachman; then they went to your lordship's chamber, and i went home; and about eleven o'clock i saw mr. marson and mr. stephens coming down with mr. spencer cowper. marson--i did not go out that night after i came in. jones--no; we agree that. did you see mr. cowper and these gentlemen together? j. gurrey--only at eleven o'clock on tuesday noon, mr. cowper, mr. marson, and mr. stephens were coming down to the market place. jones--did not they take their leave of you when they went away from you that forenoon? j. gurrey--no; only in the morning they told me they would send me word at noon if they intended to lodge there. marson--i desire to know of mr. gurrey, if his sister was not in the room when we came in? j. gurrey--she was in our house that day; but whether when they came in i cannot tell. cowper--pray, have you not had some discourse with your sister, the widow davis, concerning some suspicion that you had of sarah walker, that hath been produced as a witness? j. gurrey--i do not remember any such. cowper--then did not you say these words, we must not concern ourselves with sarah walker, for she is the only witness against the cowpers? j. gurrey--i cannot remember any such thing. hatsell, baron--you may answer according to the best of what you remember; if you say you have forgot when you have not, you are forsworn. cowper--if your lordship pleases to give leave to mr. gurrey to recollect himself, i ask him, whether he did not talk with his sister davis about some suspicion his wife and he had about sarah walker, the maid-servant of the deceased? j. gurrey--i believe there might be some talk of a person that was seen to go into the churchyard at some distance with sarah walker. cowper--did your wife say that she did suspect that person? j. gurrey--yes. cowper--did your wife say they behaved themselves strangely, and that she would have persuaded the widow blewit to have watched her? j. gurrey--there was something of that. cowper--was there not some such words, that they must not meddle with sarah walker, for she is the witness against the cowpers? j. gurrey--i said, do not concern yourself with sarah walker, for fear of taking off her evidence. cowper--pray did not the widow davis warm the sheets for these gentlemen? j. gurrey--she was with my wife, but i cannot say whether she warmed the sheets. cowper--when they came home, had you any lodgers that wanted to come home? had not you one gape? j. gurrey--i cannot say whether he was in before or after them. cowper--did not you say to your sister davis, now these gentlemen are in bed, if mr. gape would come home, our family would be quiet? j. gurrey--i do not remember that. cowper--pray, did not you go to look for mr. gape? j. gurrey--yes, i went to hockley's. cowper--who did you employ to speak to mr. gape? j. gurrey--mrs. hockley. cowper--when you came home to your own house, and after you had been at hockley's to speak with mr. gape, what account did you give of the time of night, and other particulars? j. gurrey--i gave no account of the time. cowper--not to mrs. davis? j. gurrey--i cannot tell whether i did or no. cowper--did not you say, mr. gape asked mrs. hockley what a-clock it was? j. gurrey--no, i do not remember that; but mrs. hockley went in, and told him what time of night it was; it was eleven or twelve of the clock, which i cannot say. jones--call martha gurrey. (who was sworn.) which of these gentlemen do you know? mrs. gurrey--mr. marson, mr. rogers, and mr. stephens. jones--what time of the night was it when they came to your house? give an account of it, and what you heard them say. mrs. gurrey--it was a little after five, or thereabouts that they came. jones--who came? mrs. gurrey--mr. stephens, and mr. rogers, and there was one mr. gilbert, that married a first cousin of mine; he came and asked me for my husband; and i asked him his business, and he said he wanted to speak to him. jones--pray come to these men; when did they come to your house? mrs. gurrey--they hired the lodging at five of the clock. when they first came to see them i was not at home; mr. gilbert brought them, and as i was coming along the street i saw mr. gilbert walking off, and would not look at me. jones--when did they go out? mrs. gurrey--they never staid there. jones--when did they come in again? mrs. gurrey--between eleven and twelve. hatsell, baron--what did they do when they came again? mrs. gurrey--i was laying on some sheets two pairs of stairs when they came, and then there was three of them; so they saw me a little after, and begged my excuse for bringing in another, for they said it was so late that they could not get a lodging any where else: and said, if i thought fit, the gentleman should lie with them: and i told them i liked it very well. jones--what firing had they? mrs. gurrey--the firing i laid on in the morning, and they sent for my husband to fetch them some wine. jones--what did you hear them talk on? mrs. gurrey--they discoursed with my husband, and asked him if he knew mrs. sarah stout; and one of them said to mr. marson, i think she was an old sweetheart of yours; ay, said he, but she turned me off, but a friend of mine is even with her: and mr. rogers said he was in with her; and afterwards said, her business was done. they had a bundle, that was wrapt up in pure white cloth, like to an apron, but i cannot say it was an apron; and there was a parcel hanging loose by it; and when he laid it down he said, he would pass his word mrs. sarah stout's courting days were over; and i said, i hoped it was no hurt to the gentlewoman; and then i looking upon mr. marson, saw him put his peruke aside, and his head reeked, and he told them he was but just come from london that night, which made him disappointed of a lodging. jones--what did you hear them say about any money? mrs. gurrey--i asked them how they would have their bed warmed? and mr. marson answered, very hot: with that i went down to send my daughter up, and she could not go presently; i told her then she must go as soon as she could. hatsell, baron--pray, do not tell us what passed between you and your daughter: what do you know of these gentlemen? mrs. gurrey--i went to the next room, to see if every thing was as it should be; i hearkened, and they had some discourse about money, and i heard somebody (i do not know who it should be except it were mr. stephens) answer and say, the use money was paid to-night; but what money they meant i cannot tell. jones--what did you find when they were gone? mrs. gurrey--sir, i found a cord at the end of the trunk. jones--was it there in the morning, or before they came? mrs. gurrey--no, it could not have been, for i swept my room, and wiped down the dust. jones--was the cord white? mrs. gurrey--no, it was more dirty than it is now, for my husband and i have worn it in our pockets. cowper--pray, who brought the cord down from above stairs? mrs. gurrey--my daughter that lived with me, and she laid it upon the shelf. cowper--did not you hear there was a coroner's inquest sitting? mrs. gurrey--the next day at night i did hear of it. cowper--why did not you go to the coroner's inquest and give an account of it there? mrs. gurrey--i told my husband of it, and i asked my husband if he did not hear what they said concerning mrs. sarah stout? and he answered, yes, they ought to be taken up for the words they said last night: why, saith i, do not you take notice of it? i think you ought to take them up. but he went out of doors, and i saw no more of him till the afternoon. when i heard the words, i thought somebody had stole away and got to bed to her. cowper--pray, if your husband heard these words, why did not he go to the coroner's inquest? mrs. gurrey--i did speak to him to have them taken up. cowper--why did he not do it? mrs. gurrey--he said he would not do it, he did not know but it might cost him his life. jones--how came you after this to discover it? mrs. gurrey--because i was so troubled in mind i could not rest night nor day; and i told him if he would not tell of it, i would tell of it myself, for i was not able to live. _elizabeth gurrey was sworn._ jones--pray, do you know mr. rogers, mr. stephens, and mr. marson? e. gurrey--i know mr. marson, and these are the other gentlemen, i reckon. jones--what discourse did you hear from them? e. gurrey--mr. marson asked the other gentlemen how much money they had spent? the other answered, what was that to him? you have had forty or fifty pounds to your share. then the other asked him, whether the business was done? and he answered, he believed it was; but if it was not done, it would be done to-night. then, my lord, he pulled a handful of money out of his pocket, and swore he would spend it all for joy the business was done. jones--was mr. cowper's name mentioned? e. gurrey--i heard them mention mr. cowper's name, but not mrs. sarah stout's. jones--what condition was the gentleman's shoes in? e. gurrey--i think it was mr. marson, his shoes were very wet and dirty; one of them was very hot, and he wiped his head with his handkerchief. jones--now, my lord, we have done as to our evidence. mr. marson pretended he was just then alighted and come from london, and was in a great heat, and his shoes were wet: for when he was examined, he said, he came to town about eight of the clock, and went to the glove and dolphin inn, and stayed there till he came to his lodging. now it was a wonderful thing that he should come wet shod from a tavern, where he had been sitting four or five hours together. _then the examination of mr. john marson was read_: the examination of john marson, taken before me, this th day of april, . 'who being examined where he was on monday the th of march last, saith, that he was at the borough of southwark (he being an attorney of the said court) till past of the clock in the afternoon; and saith, that he set out from southwark for hertford soon after, and came to hertford about eight the same afternoon, and put up his horse at the sign of , an inn there, and then went to the hand and glove, together with godfrey gimbart, esq., ellis stephens, william rogers, and some others, where they stayed till about eleven of the clock at night, and then this examinant went thence directly to the house of john gurrey, with the said stephens and rogers, who lay together in the said gurrey's house all that night. and being asked what he said concerning the said mrs. sarah stout, deceased, this examinant saith, that on sunday the th of march last, this examinant being in company with one thomas marshall, and telling him that this examinant intended the next day for hertford, with the marshal of the king's bench, the said thomas marshall desired this examinant and the said stephens, who was then also in company, that they would go and see the said sarah stout (his sweetheart). he confesseth, that he did ask the said gurrey, if he would shew this examinant where the said stout lived; telling the said gurrey that his name was marshall, and asked him if he never heard of him before; and jocularly said, that he would go and see her the next morning, but doth not believe that he said any thing that any friend was even with the said sarah stout, or to such like effect. and doth confess, that he did the next day, upon the said gurrey's telling him that the said stout was drowned, say, that he would keep his word, and would see her. and saith, that meeting with mr. cowper (who is this examinant's acquaintance) he believes he did talk with him concerning the said stout's being drowned, this examinant having seen her body that morning. john marson. '_cogn. die et anno antedict. coram j. holt._' jones--all that i observe from it, is this: that he had been five hours in town, and when he came to his lodging, he came in wet and hot, and said he was just come from london. marson--i had rid forty miles that day, and could not be soon cold. hatsell, baron--they have done now for the king; come, mr. cowper, what do you say to it? jones--if your lordship please, we will call one witness more, mary richardson. mrs. richardson, do you know mr. marson, or any of these gentlemen? mrs. richardson--they came on tuesday night to the bell at hoddesdon, and lay there, and one of the gentlemen, when i was warming the sheets, asked me if i knew mrs. sarah stout? and i said yes. he asked me if i knew which way she came to her end? and i told him i could not tell. jones--is that all? what did they say more? mrs. richardson--they did desire and wish it might be found out how it came about; and one gentleman took no notice of her at all. they had a little bundle, but what was in it i cannot tell, but there i saw it bound up in some coloured stuff or other, but what it was i cannot tell. jones--is that all you can say? mrs. richardson--yes, that is all. jones--then we have done. hatsell, baron--come, mr. cowper, what do you say to it? cowper--now they have done on the part of the king, my lord, and you gentlemen of the jury, i must beg your patience for my defence. i confess it was an unfortunate accident for me (as mr. jones calls it) that i happened to be the last person (for aught appears) in the company of a melancholy woman. the discourse occasioned by this accident had been a sufficient misfortune to me, without any thing else to aggravate it; but i did not in the least imagine that so little, so trivial an evidence as here is, could possibly have affected me to so great a degree, as to bring me to this place to answer for the worst fact that the worst of men can be guilty of. my lord, your lordship did just now observe, that i have appeared at the bar for my clients; but i must say too, that i never appeared for myself under this, or the like circumstances, as a criminal, for any offence whatsoever. he then goes on to point out that there is no positive evidence against him, but only suppositions and inferences--what to-day would be called circumstantial evidence; and that even admitting the evidence of the prosecution, it is as strong to show that the deceased woman was not murdered as that she was. even if the evidence proved that mrs. stout was murdered, there was nothing to show that he or his fellow-prisoners were guilty of the murder. the body was not floating when it was found, as could be shown by the parish officers who were employed by the coroner to take it out of the water. it in fact had sunk, and had then been carried by the force of the stream sideways up the stakes which were about a foot apart pointing down stream; and yet the alleged fact that the body was floating was the only evidence produced to prove that the woman was not drowned. evidence would be given to prove that the fact that the body contained little or no water was immaterial, for drowning takes place when only a very little water is received into the lungs; and in a case of suicide it is probable that water would enter the lungs sooner than it would in cases of accident. as to the evidence derived from the examination of the body after exhumation, it ought not to have been given, as the exhumation was itself an offence; 'but as it is i have no reason to apprehend it, being able to make it appear that the gentlemen who spoke to this point have delivered themselves in that manner either out of extreme malice, or a most profound ignorance; this will be so very plain upon my evidence, that i must take the liberty to impute one or both of these causes to the gentlemen that have argued from their observations upon that matter.' it had been suggested that he had an interest in the death of the deceased by reason of holding money of hers which he had received as her trustee or guardian. he had been concerned in investing some £ in a mortgage for the deceased the previous december; he had paid over this money to the mortgagees, and the mortgage had been found by the prosecutors among the papers of the deceased after her death. this was the only money transaction he had ever had with her. the prosecution had proved that there was no concealment of shame to induce him to murder her; and that, though they had no inclination to favour him. he would produce evidence to show that the dead woman committed suicide, though he only did so most unwillingly and under compulsion. the prosecution had shown that she was melancholy, and he could show that she had reason for making away with herself. this he would do by producing letters of hers, which were he alone concerned he would not allude to; but as he was in honour bound to make the best defence he could for his fellow-prisoners, he had no choice in the matter. the maid walker was the only person who gave any direct evidence against him, and she said that she heard the door shut at a quarter past eleven, and that on going downstairs directly afterwards she found that both he and the deceased had left the house. but he would prove that he had entered the glove inn as the town clock struck eleven, that he had stayed there a quarter of an hour, that after he had done several things at his lodgings he had gone to bed by twelve, and had not gone out again that night. he had sent to fetch his horse from mrs. stout's house on tuesday morning, as was only prudent, but he had told the man whom he sent that he would not want it till the next day, when he was going into essex with the rest of the circuit, which he did. he had not heard that his name was connected with mrs. stout's death till two months after the event; and the prosecution had in fact been set on foot by the quakers, who were scandalised at the idea of one of their number committing suicide, and the political opponents of his father and brother in the town. cowper went on to explain that he always had the offer of a share in his brother's lodgings, which were some of the best in the town, whenever the latter went circuit, 'which out of good husbandry i always accepted.' at the time of the last circuit, when the present case arose, parliament was sitting, and his brother 'being in the money chair,' could not attend. as cowper had been invited to lodge with mrs. stout during the assizes and wished to accept the invitation, he asked his brother to ask barefoot, the keeper of his lodgings, to dispose of them if he could. the brother said he would do so 'if he could think on it,' and accordingly cowper went down to hertford intending to lodge with mrs. stout unless his brother had failed to write to barefoot. on arriving at hertford he found that his brother had not written to barefoot, and that the rooms there were ready for him. he accordingly stayed there, sent to the coffee-house for his bag, and took up his lodging at barefoot's as usual. as soon as he had done this, the maid walker came round from mrs. stout's to invite him to dinner there. he accepted the invitation, and also a further invitation to come again in the evening; but he did not agree to sleep there. when he came the second time he paid the deceased the interest on her mortgage, some six pounds odd, in guineas and half-guineas, which money was found in her pocket after she was drowned. he wrote a receipt for the money, which she refused to sign; she pressed him to stay there that night, which he refused to do. he then went on:-- 'my lord, i open my defence shortly, referring the particulars to the witnesses themselves, in calling those who will fully refute the suppositions and inferences made by the prosecutor, whom first, my lord, i shall begin with, to show there is no evidence of any murder at all committed; and this i say again, ought to be indisputably made manifest and proved, before any man can be so much as suspected for it. hatsell, baron--do not flourish too much, mr. cowper; if you have opened all your evidence, call your witnesses, and when they have ended, then make your observations. mr. cowper--then, my lord, i will take up no more of your time in opening this matter. call robert dew. (who appeared.) when mrs. sarah stout drowned herself, was not you a parish officer? dew--i was. i was next house to the coach and horses; and about six o'clock came a little boy (thomas parker's boy), and said there was a woman fallen into the river. i considered it was not my business, but the coroner's, and i sent the boy to the coroner, to acquaint him with it, and the coroner sent word by the boy, and desired she might be taken out; so i went to the river, and saw her taken out: she lay in the river (as near as i could guess) half a foot in the water; she was covered with water; she had a striped petticoat on, but nothing could be seen of it above water. i heaved her up, and several sticks were underneath her, and flags; and when they took her out, she frothed at the nose and mouth. cowper--how was she? was she driven between the stakes? dew--she lay on the right side, her head leaning rather downwards: and as they pulled her up, i cried, 'hold, hold, hold, you hurt her arm'; and so they kneeled down and took her arm from the stakes. cowper--did you see any spot upon her arm? dew--yes, sir. cowper--what sort of spot was it? dew--it was reddish; i believe the stakes did it; for her arm hit upon the stake where she lay. cowper--pray, how do these stakes stand about the bridge of the mill? dew--i suppose they stand about a foot asunder; they stand slanting, leaning down the stream a little. cowper--could you discern her feet? dew--no, nothing like it, nor the striped petticoat she had on. cowper--might not her knees and legs be upon the ground, for what you could see? dew--truly, if i were put upon my oath whether they were so, or not, i durst not swear it; sometimes the water there is four feet, sometimes three and a-half; i believe her feet were very near the bottom. cowper--are not the stakes nailed with their head against the bridge? dew--they are nailed to the side of the bridge. cowper--pray, describe the manner in which they took her up. dew--they stooped down, and took her up. cowper--did they take her up at once? dew--they had two heavings, or more. cowper--what was the reason they did not take her up at once? dew--because i cried out, 'they hurt her arm.' cowper--was she not within the stakes? dew--no, this shoulder kept her out. cowper--when you complained they hurt her arm, what answer did they make you? dew--they stooped down and took her arm out from between the stakes; they could not have got her out else. cowper--after she was taken out, did you observe any froth or foam come from her mouth or nose? dew--there was a white froth came from her, and as they wiped it away, it was on again presently. cowper--what was the appearance of her face and upper parts at that time? dew--she was so much disfigured, i believe that scarce any of her neighbours knew her, the slime of the water being upon her. cowper--did you see her maid sarah walker at that time? dew--no. hatsell, baron--mr. cowper, do you intend to spend so much time with every witness? i do not see to what purpose many of these questions are asked. cowper--i have done with him: call young. hatsell, baron--mr. cowper, i would not have you straiten yourself, but only ask those questions that are pertinent. cowper--pray, give an account of what you know of the matter. young--on tuesday morning between five and six o'clock, last assizes---- cowper--what officer did you say? young--i was constable. cowper--was you employed by the coroner? young--not by him in person. between five and six o'clock some of the men that came into my yard to work, told me a woman was drowned at the mill; i staid a little and went down to see, and when i came there, i saw a woman, as they had told me, and i saw part of her coat lie on the top of the water to be seen, and i looked strictly and nicely within the bridge and saw the face of a woman, and her left arm was on the outside the stakes, which i believe kept her from going through; so i looked upon her very wishfully, and was going back again; and as i came back i met with r. dew and two of my neighbours, and they asked me to go back with them, and said they were going to take her up; and being constable, i told them i thought it was not proper to do it, and they said they had orders for it; so i being constable went back with them, and when i came there i found her in the same posture as before; we viewed her very wishfully; her coat that was driven near the stakes was seen, but none of her coats, or her legs; and after we had looked a little while upon her, we spake to dell and ulse to take her up, and one of them took hold of her coat till he brought her above water; and as her arm drew up, i saw a black place, and she laid sideway, that he could not take her up till they had let her down again, and so they twisted her out sideway; for the stakes were so near together that she could not lie upon her belly, or upon her back; and when they had taken her up, they laid her down upon a green place, and after she was laid down, a great quantity of froth (like the froth of new beer) worked out of her nostrils. hatsell, baron--how much do you call a great quantity? young--it rose up in bladders, and run down on the sides of her face, and so rose again; and seeing her look like a gentlewoman, we desired one ulse to search her pockets, to see if there were any letters, that we might know who she was; so the woman did, and i believe there was twenty or more of us that knew her very well when she was alive, and not one of us knew her then; and the woman searched her pockets, and took out six guineas, ten shillings, three pence halfpenny, and some other things; and after that i desired some of my neighbours to go with me and tell the money; for when it came to be known who she was, i knew we must give an account on it, and i laid it upon a block and told it, and they tyed it up in a handkerchief, and i said i would keep the money, and they should seal it up to prevent any question about it; and during all this while of discourse, and sealing up the money, the froth still worked out of her mouth. cowper--have you measured the depth of the water? what depth is it there? young--i measured the water this morning, and it was so high that it ran over the floodgate, and the height of it was about four foot two inches; but sometimes it is pent up to a greater height than it is to-day. cowper--was it higher to-day than when the body was found? young--to the best of my remembrance, it was as high to-day as it was then. cowper--was any part of the body above water? young--no, nor nothing like the body could be seen. cowper--could you see where her legs lay? young--no, nor nothing but her upper coats, which were driven against the stakes. cowper--pray give an account how long she lay there, and when she was conveyed away? young--i stayed a quarter of an hour, and then i went and sealed up the money at my own house, so that i did not see her removed. jones--was anybody there besides yourself at this time? young--yes; twenty people at the least. jones--now here is ten of them that have sworn that the body was above the surface of the water. hatsell, baron--no, her cloaths, they say, were, but the body was something under the water. cowper--now i will trouble your lordship no more with that fact, but i will give you an account of the coroner's inquest, how diligent they were in their proceedings, and produce a copy of the inquisition itself, that she was found to have drowned herself. hatsell, baron--mr. cowper, that is no evidence if it be produced in order to contradict what these witnesses have said, that have been examined for the king; but if you will prove that they have sworn otherwise before the coroner than they now do, then you say something, otherwise the coroner's inquest signifies nothing as to the present question. cowper--call thomas wall. i am loth to be troublesome; but, if you please to favour me, i desire to know of them whether they do admit there was an inquisition, and that she was found _non compos mentis_ and did kill herself. jones--we do admit it. juryman--we desire it may be read. hatsell, baron--why, will not you believe what they agree to on both sides? juryman--if they do agree so, i am satisfied. _wall_ was one of the coroner's jury, and saw the marks on the body which he described; mr. camlin and the younger dimsdale were requested to examine them, which they did, and reported that they were no more than were usual in such cases. wall refreshed his memory from his notes, and said that sarah walker had said that it was about eleven when she had taken the coals up to warm cowper's bed, but she could not say when it was that cowper went out, for she took up some more coals, and then tarried a little, and then went down and found that cowper and her mistress had gone out. hatsell, baron--the woman said the same thing. cowper--it is necessary in this particular as to time. hatsell, baron--she told you the clocks did differ. _bowden_ and _shute_ gave evidence as to the finding of the body and as to its state when found, corroborating the other witnesses. cowper--my lord, i am very tender how i take up your lordship's time, and therefore i will not trouble you with any more witnesses on this head; but with your lordship's leave i will proceed to call some physicians of note and eminence, to confront the learning of the gentlemen on the other side. _dr. sloane_[ ] said he had not heard the other witnesses very distinctly, because of the crowd; but that cases of the present kind were very uncommon, and that none of them had fallen under his own knowledge. it was plain that a great quantity of water might be swallowed without suffocation; drunkards, who swallow freely a great deal of liquor, and those who are forced by the civil law to drink a great quantity of water, which in giving the question (as it is called) is poured into them by way of torture to make them confess crimes,[ ] have no suffocation or drowning happen to them. but on the other hand, when any quantity comes into the windpipe, so it does hinder or intercept the inspiration, or coming in of the air, which is necessary for the respiration, or breathing, the person is suffocated. such a small quantity will do, as sometimes in prescriptions, when people have been very weak, or forced to take medicines, i have observed some spoonfuls in that condition (if it went the wrong way) to have choaked or suffocated the person. he took drowning to be when water got into the windpipe or lungs, and believed that whether a person fell into the water alive or dead, some quantity would find its way there. he inclined to believe that the general condition of the body was consistent with the woman having been drowned. _dr. garth_ gave reasons for disagreeing with the doctors called for the prosecution in considering that the general state of the body proved that the woman had not been drowned, pointing out that it was as unnatural for a human body to float on its side, as for a shilling to rest on its edge, or for a deal board to float edgewise rather than otherwise. in spite of what had been said about the seamen, he believed that dead bodies would generally sink. hatsell, baron--but you do not observe my question; the seamen said that those that die at sea and are thrown overboard, if you do not tye a weight to them, they will not sink; what say you to that? dr. garth--my lord, no doubt in this they are mistaken. the seamen are a superstitious people, they fancy that whistling at sea will occasion a tempest. i must confess i have never seen anybody thrown overboard, but i have tried some experiments on other dead animals, and they will certainly sink; we have tried this since we came here hither. now, my lord, i think we have reason to suspect the seaman's evidence; for he saith that three-score pound of iron is allowed to sink the dead bodies, whereas six or seven pounds would do as well. i cannot think the commissioners of the navy guilty of so ill husbandry; but the design of tying weights to their bodies, is to prevent their floating at all, which otherwise would happen in some few days; therefore what i say is this, that if these gentlemen had found a cord, or the print of it, about the neck of this unfortunate gentlewoman, or any wound that had occasioned her death, they might then have said something. _dr. morley_ was called, and supported the view that a drowned body need not necessarily have much water in it, and that it need not float. he had tried experiments on two dogs the night before; he drowned them both, and dissecting one found no water in its stomach, while the other sank to the bottom of the water. _dr. woollaston_ and _dr. gelstrop_ both gave evidence to the same effect as the preceding witnesses. cowper--now, my lord, i would call mr. william cowper; and because of his name, i must acquaint your lordship that he is not at all acquainted with me, though i should be proud to own him if he were so; he is a man of great learning, and i believe, most people admit him to be the best anatomist in europe. mr. cowper, will you give your opinion of this matter? _mr. w. cowper_[ ] accordingly, premising that he would not only 'speak, from reason,' but give an account of experiments, stated that the symptoms described were consistent with drowning; this is a truth that no man can deny who is acquainted with any thing of this nature, that when the head of an animal is under water, the first time it is obliged to inspire (or draw in air) the water will necessarily flow into its lungs, as the air would do if it were out of the water; which quantity of water (if the dimensions of the windpipe and its branches in the lungs be considered), will not amount to three inches square, which is about three ounces of water. and this quantity of water would be sufficient to cause suffocation, and after suffocation, swallowing would become impossible. this he said, not by way of conjecture or hypothesis, but as the result of experiment. i shall by the bye, tell you how fallacious the first experiment was, when i proposed to satisfy myself whether a dead body would float in water. it happened that a spaniel, that had a great deal of long hair was hanged for this purpose, which i found to float on the surface of the water; but when i considered that his hair might buoy him up, i caused another dog, which had shorter and less hair, to be hanged and put into the water, which (according to what i had always conceived of the human body) sunk directly to the bottom. in order to satisfy myself what quantity of water was necessary to enter the body of an animal, and cause suffocation in water, i caused three dogs, when alive, to be suddenly plunged under water till they were stifled; the result was that about three ounces of water were found in their lungs, and none in their stomachs. dead bodies generally sank; weights were attached to dead bodies, not so much to make them sink at the time, as to prevent them floating afterwards. cowper--with your lordship's favour, i now think it a proper time to make this observation. the witnesses that have given evidence for the king do say they believe she was not drowned; but they have not pretended to say how she died otherwise. hatsell, baron--that is very true. _dr. crell_ was generally of the same opinion as that expressed by the last witness, and, in spite of the suggestion of the judge that he should confine his evidence to matters within his own experience, quoted the opinion of ambrose parey ('who was chief surgeon to francis the st, employed by him in most of his sieges and battles against emperor charles the th, and consequently must observe, and could not be ignorant of such like casualties in such great bodies of men'), as expressed in his chapter of renunciations, to the effect that the certain sign of a man being drowned was an appearance of froth about his nostrils and mouth. altogether his firm opinion was that the woman was drowned. _mr. harriot_, who had been a surgeon in the fleet; and _bartlet_, who had been in several naval engagements, both swore that dead bodies when thrown overboard sank at first, though they floated again afterwards. _mr. camlin_ was called at the coroner's inquest, and examined the body. he found certain marks on the head and breast which mr. dimsdale said were only the result of drowning; he had seen more decided marks on the body of the child that was drowned. he saw no indications that mrs. stout had been strangled. bowd--it was much about this time twelvemonth i had some business in london; and she [mrs. stout] sent to me, to know when i should go to london; and i waited upon her before i went, and she desired me to do some business for her; and when i returned, i acquainted her with what i had done; and sitting together in the hall, i asked her, what is the matter with you? said i, there is something more than ordinary; you seem to be melancholy. saith she, you are come from london, and you have heard something or other: said i, i believe you are in love. in love! said she. yes, said i, cupid, that little boy, hath struck you home: she took me by the hand; truly, said she, i must confess it; but i did think i should never be guilty of such a folly: and i answered again, i admire that should make you uneasy; if the person be not of that fortune as you are, you may, if you love him, make him happy and yourself easy. that cannot be, saith she: the world shall not say i change my religion for a husband. and some time after i had been in london, having bought some india goods, she came to my shop and bought some of me for a gown, and afterwards she came to pay me for it; and i asked her, how do you like it? have you made it up? no, said she, and i believe i shall never live to wear it. cowper--pray how long is it since? bowd--it was about february or january before her death. i asked her, why she did not come to my house oftener she said, she had left off all company, and applied herself to reading; and company was indifferent to her. several other witnesses were then called to prove that they had recently seen the deceased woman in a state of melancholy, and that she had admitted that she was in love, though she would not say with whom. cowper--mrs. cowper, what do you know of mrs. stout's melancholy? cowper--my lord, this is my brother's wife. mrs. cowper--about spring was twelve month, she came to london, and i believe it was not less than once or twice a week i saw her; and i never had an opportunity to be an hour alone with her at any time, but i perceived something in her melancholy. i have asked her the reason of it several times, and sometimes she seemed to dislike her profession, being a quaker; and sometimes she would say, that she was uneasy at something that lay upon her spirits, which she should never outlive; and that she should never be well while she was in this world. sometimes i have endeavoured to persuade her out of it seriously, and sometimes by raillery, and have said are you sure you shall be better in another world? and particularly i remember i have said to her, i believe you have mr. marshall in your head: either have him, or do not trouble yourself about him; make yourself easy either one way or another; and she hath said no, in an indifferent way, i cannot make myself easy: then i have said, marry him: no, saith she, i cannot. sometimes with company she would be diverted, and had frequently a way of throwing her hands, and shewed great disturbance and uneasiness. this time twelvemonth, at the summer assizes, i was here six days, and i saw her every day; and one time, among other discourse, she told me she had received great disturbance from one theophilus, a waterman and a quaker, who coming down to old mrs. stout, that was then lame, she had gathered about or people together to hear him preach; and she said he directed his discourse to her, and exasperated her at the rate that she had thoughts of seeing nobody again, and said, she took it heinously ill to be so used, and particularly, that he had told her that her mother's falling outwardly in the flesh should be a warning that she did not fall inwardly; and such 'canting stuff,' as she called it; and she said, that theophilus had so used her, that she was ashamed to show her head. another time, the same week, she had a fever, and she said, she was in great hopes it would end her days, and that she neglected herself in doing those things that were necessary for her health, in hopes it would carry her off, and often wished herself dead. another time, which i think was the last time i saw her, it was at my sister's lodgings, and i sent for her to drink a dish of tea with us, and she came in a great toss and melancholy: said i, what is the matter? you are always in this humour. saith she, i cannot help it, i shall never be otherwise. saith my sister, for god's sake keep such thoughts out of your head as you have had, do not talk any more of throwing yourself out of window: saith she, i may thank god that ever i saw your face, otherwise i had done it, but i cannot promise i shall not do it. hatsell, baron--what is your name, madam? cowper--it is my brother's wife, my lord. i desire mrs. toller may give an account of what she knows as to her being melancholy. mrs. toller--my lord, she was once to see me, and she looked very melancholy, and i asked her what was the matter? and she said, something had vexed her that day; and i asked her the cause of it, and she stopped a little while, and then said, she would drown herself out of the way. hatsell, baron--how long ago was this? mrs. toller--about three quarters of a year ago. john stout--i desire to know whether she has always said so, or not told another story. mrs. toller--i told you no story; it may be i did not say so much to you, but i said she talked something of drowning. i have been with her when mr. cowper's conversation and name has been mentioned, and she said she kept but little company; that sometimes she went to mrs. low's, and that she kept none but civil modest company, and that mr. cowper was a civil modest gentleman, and that she had nothing to say against him. cowper--this is mrs. eliz. toller, my lord. elizabeth toller--my lord, she came to see me some time after christmas, and seemed not so cheerful as she used to be; said i, what is the matter? why are you not so merry as you used to be? why do you not come often to see me? saith she, i do not think to go abroad so much as i used to do, and said, it would be as much a rarity to see her go abroad, as to see the sun shine by night. cowper--mrs. grub, what do you know concerning mrs. stout's pulling out a letter at her brother, mr. john stout's? give an account of it, and what she said upon that occasion. mrs. grub--i have a daughter that lives at guernsey, and she sent me a letter, and i prayed mrs. sarah stout to read the letter; and while she was reading it i cried; saith she, why do you cry? said i, because my child is so far off. said she, if i live till winter is over, i will go over the sea as far as i can from the land. hatsell, baron--what was the occasion of her saying so? mrs. grub--i was washing my master's study, mrs. sarah stout came in, and i had a letter from my daughter at guernsey, and i prayed mrs. sarah stout to read it, and she read my letter, and i cried, and she asked me, why i cryed? said i, because my child is so far off: saith she, if i live to winter, or till winter is over, i will go over sea as far as i can from the land. cowper--now, my lord, to bring this matter of melancholy to the point of time, i will call one witness more, who will speak of a remarkable instance that happened on saturday before the monday when she did destroy herself. call mr. joseph taylor. pray will you inform the court and jury of what you observed on saturday before the monday on which mrs. stout destroyed herself. joseph taylor--i happened to go in at mr. firmin's shop, and there she sat the saturday before this accident happened, the former assizes, and i was saying to her, madam, i think you look strangely discontented; i never saw you dressed so in my life: saith she, the dress will serve me as long as i shall have occasion for a dress. cowper--in what posture did she appear in the shop? joseph taylor--she appeared to be very melancholy. cowper--what part of her dress did you find fault with? joseph taylor--it was her head cloaths. cowper--what was the matter with them? joseph taylor--i thought her head was dawbed with some kind of grease or charcoal. cowper--what answer did she make? joseph taylor--she said, they would serve her time. cowper--as to this piece of evidence, if your lordship pleases, i desire it may be particularly taken notice of; it was her head-dress that she said would serve her time. pray, mr. taylor, was you at mr. barefoot's when i came there on monday morning? joseph taylor--yes; i went up stairs with you into your chamber. cowper--pray, what did i say to mr. barefoot? joseph taylor--you asked him if they had received a letter from your brother, and he said, no, not that he knew of, but he would call his wife, and he did call his wife, and asked her if she had received a letter, and she said, no; then said you, i will take up this lodging for mine; and accordingly you went up stairs, and i went with you, and staid there about four times as long as i have been here. cowper--are you very sure that i said, i would take up my lodgings there? joseph taylor--yes, i am very sure of it. hatsell, baron--what time of the day was it? joseph taylor--it was the fore part of the day; while i was there, my lord, mrs. sarah stout's maid came to invite mr. cowper to her house to dinner. cowper--did you know anything of my sending to the coffee-house? joseph taylor--you sent to the coffee-house for your things. hatsell, baron--did mr. cowper use to lie at mrs. barefoot's? joseph taylor--his brother did, but i do not know whether this gentleman did, but at that time he took up that place for his lodging; and said, it was all one, my brother must pay for it, and therefore i will take it up for myself. cowper--call mrs. barefoot and her maid. [but they not presently appearing,] cowper--my lord, in the meantime i will go on to the other part of my evidence, in opening of which i shall be very short. my lord, my wife lodging at hertford, occasioned me frequently to come down. mrs. stout became acquainted with her; when business was over in the long vacation, i resided pretty much at hertford, and mr. marshall came down to pay me a visit, and this introduced his knowledge of mrs. stout. when she was first acquainted with him she received him with a great deal of civility and kindness, which induced him to make his addresses to her, as he did, by way of courtship. it happened one evening that she and one mrs. crook, mr. marshall and myself, were walking together, and mr. marshall and mrs. crook going some little way before us, she took this opportunity to speak to me in such terms, i must confess, as surprized me. says she, mr. cowper, i did not think you had been so dull. i was inquisitive to know in what my dulness did consist. why, says she, do you imagine i intend to marry mr. marshall? i said i thought she did, and that if she did not, she was much to blame in what she had done: no, says she, i thought it might serve to divert the censure of the world, and favour our acquaintance. my lord, i have some original letters under her own hand which will make this fully manifest; i will produce the letters after i have called mr. marshall. mr. marshall. mr. marshall--if your lordship pleases, it was in the long vacation i came down to spend a little of my leisure time at hertford; the reason of my going thither was, because mr. cowper was there at that time. the first night when i came down i found mrs. sarah stout visiting at mr. cowper's lodgings and there i first came acquainted with her; and she afterwards gave me frequent opportunities of improving that acquaintance; and by the manner of my reception by her, i had no reason to suspect the use it seems i was designed for. when i came to town, my lord, i was generally told of my courting mrs. stout, which i confess was not then in my head; but it being represented to me as a thing easy to be got over, and believing the report of the world as to her fortune, i did afterwards make my application to her; but upon very little trial of that sort, i received a very fair denial, and there ended my suit; mr. cowper having been so friendly to me, as to give me notice of some things, that convinced me i ought to be thankful i had no more to do with her. hatsell, baron--when did she cast you off? mr. marshall--i cannot be positive as to the time, my lord, but it was in answer to the only serious letter i ever writ to her; as i remember, i was not over importunate in this affair, for i never was a very violent lover. hatsell, baron--well, but tell the time as near as you can. mr. marshall--i believe it was a second or third time i came down to hertford, which is about a year and a half since; and, during the whole of my acquaintance with her, i never till then found her averse to any proposal of mine; but she then telling me her resolution was not to comply with what i desired, i took her at her word, having, partly by my own observation, but more by mr. cowper's friendship, been pretty well able to guess at her meaning. cowper--because what you say may stand confirmed beyond contradiction, i desire you to say whether you have any letters from her to yourself? mr. marshall--yes, i have a letter in my hand which she sent me, upon occasion of some songs i sent her when i came to town, which she had before desired of me; and this is a letter in answer to mine; it is her hand-writing, and directed to me. hatsell, baron--how do you know it is her hand-writing? mr. marshall--i have seen her write, and seen and received several letters from her. cowper--pray shew it mr. beale. mr. beale--i believe it to be her hand; i have seen her write, and have a receipt of hers. clerk of arraigns--it is directed to mr. thomas marshall at lyons-inn, and dated sept. , . '_sept. , ._ 'sir, 'yours came very safe; but i wish you had explained your meaning a little more about the accident you speak of; for have been puzzling my brains ever since; and without i shall set myself to conjuring, i cannot imagine what it should be, for i know of nothing that happened after you went away, nor no discourse about you, only when we were together, the company would sometimes drink your health, or wish you had been there, or the like; so that i fancy it must be something mr. has invented for diversion; though i must confess we have a sort of people here, that are inspired with the gift of foreknowledge, who will tell one as much for nothing as any astrologer will have a good piece of money for. but to leave jesting, i cannot tell when i shall come to london, unless it be for the night and away, about some business with my brother, that i must be obliged to attend his motions; but when i do, i shall remember my promise, although i do not suppose you are any more in earnest than myself in this matter. i give you thanks for your songs and your good wishes, and rest, your loving duck.' cowper--have you any more letters? mr. marshall--yes, i have another letter here, but before it is read, i think it will be proper to give the court an account of the occasion of its being writ. i waited on mrs. stout one evening at her lodgings in houndsditch, and at our parting she appointed to meet me the next day; and to excuse her not coming according to that appointment, she sent me this letter. clerk of arraigns--it is directed to mr. thomas marshall; it is without date. 'mr. marshall, i met unexpected with one that came from h----d last night, who detained me so long with relating the most notorious inventions and lyes that are now extant amongst those people, that i could not possible come till it was late; and this day was appointed for business, that i am uncertain when it will be finished; so that i believe i cannot see you whilst i am in town. i have no more at present, but that i am your obliged friend.' cowper--now, my lord, if your lordship please, i proceed to shew you, that i went not so much voluntarily as pressed by her to come to this house, and for that i will produce one letter from her to myself; and, my lord, i must a little inform you of the nature of this letter. it is on the outside directed to mrs. jane ellen, to be left for her at mr. hargrave's coffee-house. for her to direct for me at a coffee-house, might make the servants wonder and the post-man might suspect, and for that reason she directed it in that manner. there was mr. marshall by whom i received it, and i can prove the hand by mr. beale. mr. marshall--my lord, i verily believe i was by, and that mr. cowper shewed me this letter immediately on receipt of it, as he had done several others from the same hand. clerk of arraigns--this is directed for mrs. jane ellen. it is dated march the th, without any year. _'march the th._ sir, i am glad you have not quite forgot that there is such a person as i in being; but i am willing to shut my eyes, and not see anything that looks like unkindness in you, and rather content myself with what excuses you are pleased to make, than be inquisitive into what i must not know. i should very readily comply with your proposition of changing the season, if it were in my power to do it, but you know that lies altogether in your own breast; i am sure the winter has been too unpleasant for me to desire the continuance of it; and i wish you were to endure the sharpness of it but for one hour, as i have done for many long nights and days; and then i believe it would move that rocky heart of yours, that can be so thoughtless of me as you are; but if it were designed for that end, to make the summer the more delightful, i wish it may have the effect so far, as to continue it to be so too, that the weather may never overcast again; the which if i could be assured of, it would recompense me for all that i have ever suffered, and make me as easy a creature as i was the first moment i received breath. when you come to h----d pray let your steed guide you, and do not do as you did the last time; and be sure order your affairs to be here as soon as you can, which cannot be sooner than you will be heartily welcome to your very sincere friend.' '_for mrs. jane ellen, at mr. hargrave's, near temple-bar, london._' cowper--though it is directed to mrs. jane ellen, it begins in the inside 'sir,' and it is dated the th march next before the th. hatsell, baron--what march was it? mr. marshall--i kept no account of the time, but i am very positive, by the contents, that mr. cowper shewed me this letter and i read it, but by my now remembrance, it should be longer since than march last. cowper--it was march last. that which will set mr. marshall's memory to rights is this other letter, which i received at the rainbow, when he was by, and he read it; and it importuning me to a matter of this kind, i did produce it to my brother and him; they both knew of it; and both read it, and that will refresh his memory concerning the date of the other. mr. marshall--my lord, i was in the coffee-house with mr. cowper when he received this letter; and he afterwards shewed it to mr. william cowper, at the covent-garden tavern, when i was by. clerk of arraigns--this is dated the th of march, and directed to mrs. jane ellen, at mr. hargrave's. '_march ._ sir, i writ to you by sunday's post, which i hope you have received; however, as a confirmation, i will assure you i know of no inconveniency that can attend your cohabiting with me, unless the grand jury should thereupon find a bill against me; but i won't fly for it, for come life, come death, i am resolved never to desert you; therefore according to your appointment i will expect you and till then i shall only tell you, that i am 'yours,' etc. '_for mrs. jane ellen, at mr. hargrave's, near temple-bar, london._' cowper--if your lordship please, i will further prove this letter by my brother. _william cowper_ said that about a year and a half since, when mrs. stout was in london, his brother came to his chamber in the temple, and told him that he had received a letter from mrs. stout, saying that she intended to visit him in his chamber that day. his brother told the witness that because of her connection with marshall, as well as for other reasons, he would not receive her there; and it was arranged that as she intended first to dine with their father at his house in hatton garden, where the witness was then living, he should take the opportunity for casually remarking that the prisoner was that day gone to deptford, as he in fact intended to do. this plan was carried out, with the result that mrs. stout left the room fainting. the witness then went on to give an account of how his brother showed him the last letter mentioned, at the covent garden tavern-- saith he, the occasion of my shewing it, is not to expose a woman's weakness, but i would not willingly lie under too many obligations, nor engage too far; nor on the other hand would i be at an unnecessary expence for a lodging. it was accordingly arranged that the witness should write to barefoot to dispose of his lodgings, as cowper had already related. i said i would write the next day, being saturday; but when i should have writ, it was very late, and i was weary, being then tied down to the business of parliament; and partly for that reason, and partly in point of discretion, which i had upon my second thoughts, that it would be better for my brother to be at mr. barefoot's, which is near the court, and in the market place, i did neglect writing; and though i thought of it about eleven o'clock, yet, as i said, partly for one reason, and partly for another, i did not write that time.' _beale_ was then called to prove the hand-writing of the letters, and the jury declared themselves satisfied. hatsell, baron--i believe you may ask her mother, she will tell you whether it be her daughter's hand. mrs. stout--how should i know! i know she was no such person; her hand may be counterfeited. hatsell, baron--but if it were written in her more sober stile, what would you say then? mrs. stout--i shan't say it to be her hand unless i saw her write it. mr. stout--it is like my sister's hand. hatsell, baron--do you believe it to be her hand? mr. stout--no, i don't believe it; because it don't suit her character. _mrs. barefoot_ had expected cowper at her lodgings, and had prepared a bed for him. cowper came to her house as usual, and sent to the coffee-house for his bag. mrs. stout sent her maid over to invite cowper to dine at their house. cowper came back to her house about eleven, by the town clock, and did not go out again. _hanwell_, the last witness's maid, made some preparations in cowper's room before he went to bed, which he did a little before twelve. referring to the last-quoted letter of the deceased woman, cowper says: 'i had rather leave it to be observed, than make the observation myself, what might be the dispute between us at the time the maid speaks of. i think it was not necessary she should be present at the debate; and therefore i might not interrupt her mistress in the orders she gave; but as soon as the maid was gone i made use of these objections; and i told mrs. stout by what accident i was obliged to take up my lodgings at mrs. barefoot's, and that the family was sitting up for me; that my staying at her house under these circumstances, would in probability provoke the censure of the town and country; and that therefore i could not stay, whatever my inclination might otherwise be; but, my lord, my reasons not prevailing, i was forced to decide the controversy by going to my lodging; so that the maid may swear true, when she says i did not contradict her orders.' _spurr_ proved that cowper came to the glove and dolphin inn as the clock struck eleven, and stayed there about a quarter of an hour. the glove and dolphin was a little less than a quarter of a mile from mrs. stout's house. cowper then pointed out that, according to sarah walker's evidence, he left mrs. stout's house at a quarter to eleven by the real time; that if, as he should prove, it took half an hour to go from there to the place where mrs. stout was drowned, he could not, according to the evidence he had just called, have been there. _sir w. ashurst_ said it took him half an hour and one minute to walk to the place where the deceased was drowned. _sir t. lane_ said it took him about three-quarters of an hour, 'and we did not stay at all by the way, except just to look upon the hospital.' _kingett_ and _man_, two servants at the glove and dolphin, confirmed spurr's evidence as to the time when cowper arrived there and the time he stayed there; adding that he came there to ask about an account for his horse. hatsell, baron--pray, wherein hath sarah walker said anything that is false? cowper--in this: i asked her when she gave evidence, whether she went out to see for her mistress all that night, and whether her mistress did not use to stay out at nights, and whether she herself had not used to say so? if your lordship pleases to remember, she said no. pray, mrs. mince, what have you heard mrs. stout's maid say concerning her mistress, particularly as to her staying out all night? mrs. mince--she hath said, that her mistress did not love to keep company with quakers; and that she paid for her own board and her maid's; and that, when she entertained any body, it was at her own charge. and she hath said, that mrs. stout used to ask, who is with you, child? and she would not tell her; and that she did entertain her friends in the summer house now and then with a bottle of wine; and when her mother asked who was there? her mistress would say, bring it in here, i suppose there is none but friends; and after the company was gone, she used to make her mother believe that she went to bed: but she used to go out and take the key with her, and sometimes she would go out at the window, and she said particularly, one time she went out at the garden window, when the garden door was locked, and that she bid her not sit up for her, for she would not come in at any time. hatsell, baron--did ever sarah walker tell you that mrs. stout staid out all night? mrs. mince--she hath said, she could not tell what time she came in, for she went to bed. _cowper_ offered to prove that gurrey, at whose house the other prisoners had stayed, had said that if he had gone to visit mrs. stout, meaning apparently, if he had gone to visit the mother after the daughter's death, the prosecution would not have taken place. to this he would answer that he never had gone to see her in his life. now, for a man officiously to make a new visit in the time of the assizes, one engaged in business as i was, and especially upon so melancholy an occasion; i say for me to go officiously to see a woman i never had the least knowledge of, would have been thought more strange (and justly might have been so) than the omission of that ceremony. for my part, i cannot conceive what mr. gurrey could mean, this being the case, by saying, that if i had visited mrs. stout, nothing of this could have happened. hatsell, baron--mr. cowper, he is not the prosecutor, i think it is no matter what he said. _sir w. ashurst, sir t. lane, and mr. thompson_ were then called to cowper's character, and described him as a humane, upright, and capable man. this concluded the case against cowper, and the case of marson was next considered. in reply to a question from the judge, he explained that stephens was the clerk of the paper in the king's bench; that rogers was steward of the king's bench; and that it was their duty to wait upon the lord chief-justice of the king's bench out of town. on monday they all went to the lord chief-justice's house in lincoln's inn fields, according to their custom, and all set out from there. marson, being only an attorney in the borough court, could not go further with the others than kingsland, and returned from there to his business in southwark, where he attended the court, as was his duty, and set out again at past four in the afternoon. on arriving at waltham he met one mr. hanks, a clergyman, who was returning from attending the lord chief-justice to hertford, whom he persuaded to return with him to hertford, on the plea that he did not know the way. they galloped all the way, and did not arrive at hertford till eight. there they found the marshal, stephens, rogers, rutkin, and others of the marshal's acquaintance at the coffee-house, from which they went to the glove and dolphin, and stayed there till eleven o'clock. rogers and the witness had a dispute about which of them should lie with stephens at gurrey's house, and they all went to gurrey's to see what could be arranged, and to drink a glass of wine. eventually stephens, rogers, and marson, all stayed at gurrey's; while hanks and rutkin went back to the marshal's. the party at gurrey's drank three bottles of wine, and afterwards, in jocular conversation, i believe mr. stephens might ask mr. gurrey if he knew of one mrs. sarah stout? and the reason why he asked that question our witness will explain. i believe he might likewise ask what sort of woman she was? and possibly i might say the words, my friend may be in with her, though i remember not i did say anything like it; but i say there is a possibility i might, because i had heard she had denied marshall's suit, and that might induce me to say, my friend may be in with her, for all that i remember. i confess mr. rogers asked me what money i had got that day, meaning at the borough court? i answered fifty shillings; saith he, we have been here a-spending our money, i think you ought to treat us, or to that purpose. as to the bundle mentioned i had no such, except a pair of sleeves and a neck-cloth. as to the evidence which goes to words spoken, the witnesses have fruitful inventions; and as they have wrested and improved the instances i have been particular in, so they have the rest, or otherwise forged them out of their own heads. hatsell, baron--mr. rogers, what do you say to it? rogers--we came down with the marshal of the king's bench, it rained every step of the way, so that my spatter-dashes and shoes were fain to be dried; and it raining so hard, we did not think mr. marson would have come that day, and therefore we provided but one bed, though otherwise we should have provided two, and were to give a crown for our night's lodging. we went from the coffee-house to the tavern, as mr. marson has said, and from the tavern the next way to our lodging, where there was some merry and open discourse of this gentlewoman; but i never saw her in my life, nor heard of her name before she was mentioned there. stephens--we never stirred from one another, but went along with the marshal of the king's bench, to accompany my lord chief-justice out of town, as is usual. hatsell, baron--i thought it had been as usual for him to go but half the way with my lord chief-justice. rogers--they generally return back after they have gone half the way, but some of the head officers go throughout. stephens--it was the first circuit after the marshal came into his office, and that is the reason the marshal went the whole way. hatsell, baron--did not you talk of her courting days being over? prisoners--not one word of it; we absolutely deny it. stephens--i never saw her. jones--mr. marson, did you ride in boots? marson--yes. jones--how came your shoes to be wet? marson--i had none. _hunt_ gave an account of how he was at the old devil tavern at temple bar, on sunday night, and marson and three or four others of clifford's inn being there at the same time, discoursing of the marshal's attending the lord chief-justice to hertford, marson said he too might be required to go; on which one of the company said, 'if you do go to hertford, pray enquire after mr. marshall's mistress, and bring us an account of her;' and it was this discourse that gave occasion to talk of mrs. stout at gurrey's house, which was done openly and harmlessly. this story was corroborated by one foster, who had been at the devil; and stephens offered to call another witness to the same purpose, but was stopped by the judge. _hanks_ was called, and gave the same account of his arrival in hertford as marson had already given. he was in marson's company from the time he met him till he left him at his lodgings, at about eleven o'clock. _rutkin_ was called by marson to give an account of his coming to hertford. rutkin--my lord, i came to wait on the marshal of the king's bench to hertford, and when we were come to hertford we put up our horses at the bull, and made ourselves a little clean; we went to church, and dined at the bull, and then we walked in and about the court, and diverted ourselves till about seven o'clock; and between seven and eight o'clock came mr. marson and dr. hanks to town, and then we agreed to go to the dolphin and glove to drink a glass of wine; the marshal went to see an ancient gentleman, and we went to the dolphin and glove, and staid there till past ten o'clock, and after the reckoning was paid we went with them to their lodging, with a design to drink a glass of wine; but then i considered i was to lie with the marshal, and for that reason i resolved not to go in, but came away, and went to the bull inn, and drank part of a glass of wine and afterwards went to the next door to the bull inn, where i lay with the marshal. _marson_ called witnesses to character, who swore that they had always had a good opinion of him, that they had never seen him but a civilised man, that he had been well brought up amongst them, and that they had never seen him given to debauchery. _cowper_ said that he was concerned to defend the other prisoners as much as himself, and that there was something he wished to say in their behalf. 'the principal witness against them is one gurrey; and i will prove to you, that since he appeared in this court, and gave his evidence, he went out in a triumphant manner, and boasted that he, by his management, had done more against these gentlemen than all the prosecutor's witnesses could do besides. to add to that i have another piece of evidence that i have just been acquainted with; my lord, it is the widow davis, gurrey's wife's sister, that i would call. _mrs. davis_ was asked by her sister to help her lay the sheets for the men in gurrey's house, and while she was doing so the gentlemen came into the room; it was then about ten, or something later. they had three quarts of wine and some bread and cheese, and then went to bed; and after that gurrey went to fetch gape, who lodged at his house, from hockley's. cowper--i only beg leave to observe that gurrey denied that he went for him. hatsell, baron--ay; but this signifies very little, whether it be true or false. various other witnesses were called, who gave all the prisoners excellent characters in their private and professional capacities. jones--my lord, we insist upon it, that mr. cowper hath given a different evidence now, from what he did before the coroner; for there he said he never knew any distraction, or love fit, or other occasion she had to put her upon this extravagant action. now here he comes, and would have the whole scheme turned upon a love-fit. call john mason. _mason_, in answer to questions put to him by mr. stout and jones, said that cowper, before the coroner, had said that he knew no cause for mrs. stout's suicide; and that she was a very modest person. he was asked whether he knew any person she was in love with, and he said he knew but of one, and his name was marshall, and he was always repulsed by her. _archer_ was present at the inquest, and heard cowper say that he knew no occasion of mrs. stout's death, nor of any letters. cowper--then i must call over the whole coroner's inquest, to prove the contrary. hatsell, baron--did they ask him concerning any letters? archer--they asked him, if he knew of any thing that might be the occasion of her death? hatsell, baron--i ask you again, if they asked him if he knew of any letters? archer--my lord, i do not remember that. mr. stout--i would have called some of the coroner's inquest but i was stopped in it. juryman--we have taken minutes of what has passed; if your lordship pleases we will withdraw. hatsell, baron--they must make an end first. _mrs larkin_ was called, and said that rutkin came to her house between nine and ten, and that the marshal did not come in till an hour afterwards. _mr. stout_ desired to call witnesses to his sister's reputation; and _jones_ said that the whole town would attest to that. _hatsell, baron_, then summed up. he said that the jury could not expect that he should sum up fully, but that he would notice the most material facts, and that if he omitted any thing, jones or cowper would remind him of it. he then recapitulated sarah walker's evidence, very briefly; and then went on:-- the other witnesses that came afterwards, speak concerning the finding of the body in the river, and tell you, in what posture it was. i shall not undertake to give you the particulars of their evidence; but they tell you she lay on her right side, the one arm up even with the surface of the water, and her body under the water; but some of her cloaths were above the water. you have also heard what the doctors and surgeons said on the one side and the other, concerning the swimming and sinking of dead bodies in the water; but i can find no certainty in it; and i leave it to your consideration. further, there were no signs of water in the body, and it was said that this was a sign that she was not drowned; but then it was answered that it might show that she had drowned herself, because if she wished to drown herself she would choke herself without swallowing any water. the doctors and surgeons have talked a great deal to this purpose, and of the water's going into the lungs or the thorax; but unless you have more skill in anatomy than i you would not be much edified by it. i acknowledge i never studied anatomy; but i perceive that the doctors do differ in their notions about these things.... gentlemen, i was very much puzzled in my thoughts, and was at a loss to find out what inducement there could be to draw in mr. cowper, or these three other gentlemen, to commit such a horrid, barbarous, murder. and on the other hand, i could not imagine what there should be to induce this gentlewoman, a person of plentiful fortune, and a very sober good reputation, to destroy herself.' but if they believed the letters that had been produced to be in her hand, there was evidence to show that although she was a virtuous woman, a distemper might have turned her brains, and discomposed her mind. as to these three other gentlemen that came to this town at the time of the last assizes, what there is against them, you have heard; they talked at their lodging at a strange rate, concerning this mrs. sarah stout, saying, her business is done, and that there was an end of her courting days, and that a friend of theirs was even with her by this time. what you can make of this, that i must leave to you; but they were very strange expressions; and you are to judge whether they were spoken in jest, as they pretend, or in earnest. there was a cord found in the room, and a bundle seen there, but i know not what to make of it. as to mrs. stout, there was no sign of any circle about her neck, which, as they say, must have been if she had been strangled; some spots there were; but it is said, possibly these might have been occasioned by rubbing against some piles or stakes in the river. truly, gentlemen, these three men, by their talking, have given great cause of suspicion; but whether they, or mr. cowper, are guilty or no, that you are to determine. i am sensible i have omitted many things; but i am a little faint, and cannot remember any more of the evidence. the jury then retired, and in half an hour returned with a verdict of not guilty as to all the prisoners. the acquittal in this case led to an appeal of murder, the most curious survival of the earliest english criminal procedure, which was not finally abolished till . the effect of such a proceeding was that after an acquittal on an indictment for murder, the prosecutor might challenge the accused to an ordeal by battle. accordingly, in the long vacation following the trial, mrs. stout, the mother of the dead woman, sued a writ of appeal out of chancery, against cowper, in the name of an infant who was her daughter's heir. the sealing of the writ was delayed, it is said to nearly the last possible day, a year after the alleged murder, for the purpose of keeping the matter in suspense as long as possible; and the consent of the mother of the infant to mrs. stout's being named as his guardian for the purpose, was obtained from her by a fraudulent representation that the object of the proceeding was to obtain the deceased woman's property for him. on discovering what its real effect was, she and her friends applied to one toler, the under-sheriff of hertfordshire, for the writ, and on his giving it up to them, burnt it. on a rule being obtained for the return of the writ, and it appearing that toler had delivered it to the infant's mother, he was adjudged guilty of a gross contempt, and heavily fined. holt, lord chief-justice, said on this occasion that he wondered that it should be said that an appeal is an odious prosecution. he said he esteemed it a noble remedy, and a badge of the rights and liberties of an englishman. the court of king's bench, to show their resentment, committed toler to the prison of the king's bench for his fine, though the clerk in court would have undertaken to pay it. and holt, chief-justice, said to toler, that he had not been in prison long enough before, and that he might now, if he pleased, go to hertford and make his boast that he had got the better of the king's bench. afterwards mrs. stout petitioned the lord keeper for another writ; the infant and his mother presenting a counter-petition disowning their former writ as sued forth without their consent. after an argument before a full court it was decided that the court had power to grant a new writ, but that it would be unjust to grant one under the present circumstances, because, among other reasons, the appellant and his mother had renounced the writ as soon as they understood its nature, and there was no proof that the appellees had been privy to their action. footnotes: [ ] spencer cowper ( - ) was the younger brother of earl cowper, who was the first lord chancellor of great britain. he was educated at westminster, and made controller of the bridge house estates in . at the time of this trial his brother was the member for hertford. in and he represented beeralston in parliament; he was one of the managers in sacheverell's trial, and lost his seat in consequence, but was afterwards elected for truro in . in he became attorney-general to the prince of wales, and in chief-justice of chester. on the accession of george the second he was made attorney-general of the duchy of chester, and a judge of the common pleas in . he died the same year. he was the grandfather of william cowper the poet. [ ] sir henry hatsell ( - ) was the son of an active roundhead who sat in the house of commons during the commonwealth. he was educated at exeter college, was called to the bar in , and became a baron of the exchequer in . the present trial was the most conspicuous with which he was connected, from which fact it may be supposed that he never enjoyed a very high reputation. he was removed from the bench soon after queen anne's accession. [ ] this john dimsdale was apparently the father of the first baron dimsdale, who inoculated catharine of russia and the grand duke paul, her son, for smallpox in . john's father was william, who accompanied william penn to america in ; so that it is not clear who the mr. dimsdale, senior, and dr. robert dimsdale of this trial were. the family is, however, one which has long been settled in hertfordshire. [ ] _vulgar errors_, book iv., ch. vi., 'of swimming and floating.' [ ] the lord of the manor might have a right to the forfeited goods of a felon. [ ] sir hans sloane ( - ) was born in co. down. he studied medicine abroad, and was elected a member of the royal society in . in he went to the west indies as secretary to the duke of albemarle, and made valuable scientific collections. he was elected secretary of the royal society in , and succeeded sir isaac newton as president of the same body in . he was physician to queen anne and george the second, and founded the botanical garden at chelsea for the society of apothecaries. he left his collections to the nation, and they formed part of the original nucleus of the british museum. sloane street and hans square derive their names from him. [ ] the lay reader must observe that sloane is talking of the 'civil law.' [ ] william cowper ( - ) was a leading surgeon at the time of this trial, having been elected a member of the royal society in , and in having published a treatise on anatomy, which led to a vigorous controversy between him and a dutch doctor of the name bidloo, whose anatomical plates he seems to have adopted for his own work. he subsequently published a variety of papers on surgery, and was the discoverer of cowper's glands. samuel goodere and others on the th of march , at the bristol gaol-delivery, samuel goodere,[ ] matthew mahony, and charles white were indicted for the murder of sir john dineley goodere, the brother of the first-named prisoner. they were tried before serjeant michael foster.[ ] the trial was adjourned to the th on account of goodere's health, when there appeared for the prosecution _vernon_, and for the prisoner _goodere_, _shepard_ and _frederick_. the other prisoners were undefended. _vernon_ opened the case. he began-- may it please you, mr. recorder, and you, gentlemen that are sworn on the jury, i am counsel for the king against the prisoners at the bar, who stand indicted for the murder of sir john dineley goodere; they are also charged on the coroner's inquest with the same murder; and though it is impossible for human nature not to feel some emotions of tenderness at so affecting a sight as now presents itself at the bar; yet, gentlemen, should the guilt of this black and frightful murder be fixed upon the prisoners (as from my instructions i fear it will be), pity must then give way to horror and astonishment at the baseness and barbarity of the fact and circumstances; and our sorrow ought to be that, through the lenity of the laws, the unnatural author and contriver of so shocking a piece of cruelty, and this, his brutal accomplice in the ruffianly execution of it, should be to share the common fate of ordinary malefactors. he then proceeds to point out that the indictment alleges that mahony strangled the deceased, and that goodere was present aiding and abetting him in the act; that therefore it would be immaterial for the jury which of the two actually committed the act, if they were acting together; and that it would not be material whether they strangled the deceased with a rope, a handkerchief, or their hands, 'so the kind of death be proved.' goodere was sir john's brother, and there had long been a quarrel between them owing to various causes, particularly because sir john had cut off the entail of a property in worcestershire, to which goodere would otherwise have been the heir in default of sir john's issue. he had recently been appointed captain of the _ruby_ man-of-war, and in january last she was lying in the king's road, within the county of bristol. sir john had been ordered to bath for his health, and had made an engagement to call, on his way there, at the house of mr. jarrit smith, in bristol, to transact some business. goodere had asked smith to arrange a meeting between him and his brother to effect a reconciliation, and accordingly this visit, which was to take place on tuesday the th of january, had been fixed upon for the purpose. on monday the th, goodere and mahony called at the white hart inn, near the foot of college green, in view of, and almost opposite to, smith's house; and goodere, commending the view from a closet above the porch, ordered breakfast to be prepared for him there the next day. on tuesday, goodere, accompanied by mahony, and a gang of men belonging to a privateer called the _vernon_, whom he had hired to assist him in seizing sir john, 'but whom one would have thought, the name of that gallant admiral should have inspired with nobler sentiments,' came to the white hart, where goodere went upstairs to the closet he had ordered, and the others posted themselves below to watch for sir john. he soon arrived, armed with pistols, and followed by a servant, but only made a short stay at mr. smith's, promising to come again the next sunday. he was too well protected for it to be advisable to interfere with his movements, but goodere's men, at his order, followed him a little way down the hill as he left the house. mr. smith afterwards told goodere that his brother would return the next sunday, and advised him to be in the way, that he might bring them together. goodere accordingly made all his arrangements to effect his purpose. he ordered one williams, a midshipman, to bring up the man-of-war's barge on sunday, to leave it at a point a little below bristol, with two or three men in charge of her, and to bring on the rest of the crew to meet him at the white hart, explaining that he was going to bring some one on board. accordingly, on the sunday, goodere, the barge-men, and the privateersmen, all met at the white hart; and at three in the afternoon goodere went across to mr. smith's. there he met his brother, with whom he spent some time, conversing and drinking with him apparently on perfectly friendly terms. after half an hour, however, sir john rose to go, followed by his brother; as soon as they got into the street goodere made a sign to his men in the white hart, who immediately seized sir john, and partly led him, and partly carried him towards the boat which was waiting for them, as goodere had ordered. sir john made what resistance he could, calling out that he was ruined, and that his brother was going to take his life; his captors, however, explained to bystanders who tried to interfere that he was a murderer, whom they were arresting, and kept off the crowd by means of the bludgeons and truncheons with which they were armed. they could not prevent sir john, however, from calling out, as he was being put into the barge, that he was going to be murdered, that the people by were to tell mr. smith, and that his name was sir john dineley. the privateersmen were landed lower down the river, and at about seven in the evening sir john was brought on board the _ruby_. there his brother pretended to the crew that he was a madman, and shut him up in the purser's cabin, on to the door of which he had two new bolts fitted. a sentry was posted outside the door, but at some time after midnight he was relieved by goodere himself, who admitted mahony and white, keeping back another man from approaching it. a struggle was heard in the cabin, and sir john calling out, 'murder! must i die! help, for god's sake! save my life, here are twenty guineas, take it!' then mahony called for a light, which was handed in to him by goodere, while he still kept another man away from the cabin door by his cutlass. goodere then withdrew to his cabin, and mahony and white were put ashore in the ship's yawl. in the morning the ship's cooper, who had heard sir john calling out, and in fact seen a part of the attack on him through a chink, broke open the door of the purser's cabin and found the dead body. goodere was then arrested by the crew, and brought before the mayor of bristol, where he denied all knowledge of the matter. _shepard_ asked that the witnesses for the prosecution should be ordered out of court. _vernon_ replied that he had no right to this, and that as it would seem to cast a slur upon their honesty he objected to it being done. _shepard_ admitted that he had no right to it, but asked it as a favour; on which all witnesses were ordered to leave the court, an exception being made in favour of mr. jarrit smith, who claimed a right to be present as he was prosecuting solicitor as well as a witness. _chamberlayn_ was called, and said that about three weeks before the death of sir john he was asked by goodere to interpose with mr. jarrit smith to bring about a reconciliation between him and sir john. he went to mr. smith as he was asked to, and he promised to do all he could in the matter. the brothers had been at law a long while, and spent a great deal of money, and that was why goodere wanted mr. smith to bring about a reconciliation between them. _jarrit smith_ was then called, and deposed that mr. chamberlayn had brought him the message he had described, and had brought goodere to his house, and that he had promised him to do what he could to bring about a reconciliation. some little time after they were gone, i saw sir john, and told him that mr. goodere had applied to me to do all i could to reconcile them. sir john seemed to speak much against it at first, and thought it would be to no purpose; for that he had been a real friend to the captain, who had used him very ill; but at last he was pleased to pass a compliment on me, and said, i cannot refuse anything you ask of me. he then mentioned several things the captain had said; and in particular told me that at the death of sir edward goodere, his father, mr. goodere, the prisoner, had placed several persons in the house where sir edward lay dead, in order to do him some mischief, and he apprehended to take away his life. shepard--i must submit it to the court, that what sir john said at that time is not a matter of evidence. the recorder--it is not evidence, but perhaps it is introductory to something mr. smith has further to say; if it be not, it should not have been mentioned. smith--and that he had endeavoured to set aside a common recovery, and made strong application to the court of common pleas for that purpose. shepard--whether this be evidence, i insist upon it that in point of law it is not, and it may have an effect on the jury. the recorder--i will take notice to the jury what is not evidence. go on, mr. smith. smith--after sir john had repeated several stories of this sort, he concluded at last (as i told you before), and why, mr. smith, if you ask it of me, i can't refuse. i saw mr. goodere soon after, and told him i had seen sir john and talked with him, and he was pleased to tell me, that he would see him, and bid me contrive a convenient place to bring them together. i told mr. goodere about the attempt to set aside the recovery. i wonder, said mr. goodere, he should mention anything of that, for i can set it aside when i please. i told him, i thought he could not; for, said i, i have a good opinion on it, and am to lend a large sum of money on the worcestershire estate. he said, i wonder that any body will lend him money on that estate; i am next in remainder, and they will run a risk of losing their money, i do assure you; and he cannot borrow a shilling on it without my consent: but if my brother was reconciled, then, if we wanted money, we might do it together, for he cannot secure it alone. he told me, that he should take it as a great favour, if i could fix a time as soon as i could to bring them together. soon after i saw sir john, and he told me he was very deaf, and was advised to go to bath, and then appointed to be with me on tuesday, the th of january last, in the morning, when he would talk with me about the business of advancing the money on his estate. after this i saw mr. goodere, and told him that i had seen his brother; that he was to be with me on tuesday, the th of january last, and desired him to be in the way, for sir john was always very punctual to his appointment; and if business or anything happened to prevent him he always sent me a letter. mr. goodere thanked me, and told me he would be in the way; and on the tuesday morning sir john came to me on horseback, just alighted and came into my office. i asked him to sit down, which he refused, saying his head was bad; that he must go for bath, having been advised to go there for some time, and then he did not doubt but he should be better. i told sir john, that his brother knew he was to be in town therefore hoped he would sit down a little, for that i had promised him to bring them together. he said, i can't now, but you shall see me again soon, and then i may do it. i asked him, when shall i see you again, to finish the business you and i are upon? the writings are ready, name your own time, the money will be paid. he appointed to be with me on monday morning to settle that business; and said, i shall come to town the saturday or sunday before, and when i come i will let you know it: he then mounted his horse and rid off. shortly after (as i was going to the tolzey) at, or under blind-gate, i met mr. goodere, and told him i was glad to see him and that his brother had been in town. he said he had seen him and thought he looked better than he used to do. i told mr. goodere that his brother had appointed to be with me on monday morning next on business, and i expected him to be in town either the saturday or sunday before. i then had many compliments from mr. goodere, and he said, how good it would be to make up the matter between him and his brother. i heard nothing of sir john being in town till sunday the th of january last, in the morning, when he sent me a letter to let me know that he came to town the night before, and would be glad to call upon me at any time i would appoint. i sent him for answer, that i was to dine from home, but would return and be at home at three o'clock that afternoon. and as i was passing by, i stopt the coach at captain goodere's lodgings in princes street. i asked if he was at home? found him alone, and then shewed him sir john's letter. he read it, and asked the time i appointed. i told him three o'clock that afternoon. said he, i think my brother writes better than he used to do. i said, mr. goodere, i think it would be best for you to be accidentally on purpose at that time at my house. no, says he, i don't think that will be so well, i think it would be better for you to send for me. i returned to my house, and my servant told me that sir john had called, and that he would be here again presently. whilst my servant was telling this, sir john came in; i took him by the hand, and asked him how he did? i thank god, says he, i am something better; and after i have settled this affair with you, i will go to bath for some time, and then, i hope, i shall be better. i said, captain goodere is waiting, i beg you will give me leave to send for him; you know you said you would see him. with all my heart, says sir john, i know i gave you leave. i then sent down a servant to captain goodere's lodgings, to let him know sir john was with me, and desired him to come up. the servant returned, and said, here is captain goodere; on which i said, sir john, please to give me leave to introduce your brother. he gave me leave: captain goodere came in, went directly and kissed him as heartily as ever i had seen any two persons who had real affection one for the other. i desired them to sit down. sir john sat on one side of the fire, and captain goodere on the other, and i sate between them. i called for a table and a bottle of wine, and filling a full glass, i said, sir john, give me leave to drink love and friendship. ay, with all my heart, says sir john; i don't drink wine, nothing but water; notwithstanding, i wish love and friendship. captain goodere filled a bumper, and pledged it, spoke to his brother, and drank love and friendship with his brother's health. we sate some time, all seemed well, and i thought i could have reconciled them. the cork lying out of the bottle, captain goodere takes up the cork in his hand, put it into the mouth of the bottle and struck it in very hard. i then said, though sir john will not drink wine, you and i will. no, says captain goodere, i will drink water too, if i drink any more; and there was no more drank. after they had talked several things (particularly captain goodere of the pleasantness of the situation of the estate in herefordshire and goodness of the land) in a very pleasant and friendly way, sir john rose up, and said, mr. smith, what time would you have me be with you to-morrow morning? i appointed nine o'clock. he said, brother, i wish you well; then said to me, i will be with you half an hour before. sir john went down the steps; the captain was following; i stopt him, and said, pray don't go, captain, let you and i drink a glass of wine. no more now, i thank you, sir, said he. i think, said i, i have done great things for you. he paused a little and said, by god, it will not do; and in a very short time the captain went very nimbly down the steps. i followed him to the door, and observed him to go after sir john down the hill; and before he turned the churchyard wall, to be out of my sight, i observed some sailors come out of the white hart ale-house, within view of my door, and they ran up to captain goodere. i heard him say, is he ready? (i thought he meant the boat), they said, yes. he bid them make haste. then they ran very fast towards the lower-green, one of them having a bottle in his hand; captain goodere went very fast down the hill, and had it not been by mere accident i should have followed him (but some people think it was well i did not), for i promised my wife to return to the house where we dined in queen's-square, where i went soon after. mr. recorder--mr. smith, did they all go toward the lower green? smith--no, sir; but some towards the butts on st. augustine's back. sir john went that way, and captain goodere followed him; but the men who came out of the ale-house went toward the lower green some of them. about o'clock in the evening, as i was riding up the hill towards the college-green i observed a soldier looked hard at me into the coach, as if he had something to say, and seemed to be in a confusion. i walked into the court, the soldier with me, and then he said, i am informed, sir, your name is mr. jarrit smith. yes, says i, it is. (what i am now going to say, mr. recorder, is what the soldier told me.) he told me, that as he was drinking with a friend at the king's head ale-house at the lime-kilns, he heard a noise, and ran out to see what was the matter, when he saw a person dressed (as he described) like sir john's dress. vernon--pray, sir, how was sir john dressed? smith--sir john was dressed in black clothes, he had a ruffled shirt on, a scarlet cloak, a black velvet cap (for the sake of keeping his ears warm) and a broad-brimmed hat flapping. he described this exactly, and told me likewise, that the captain of the man-of-war and his crew had got the person into custody, and by force had put him on board the man-of-war's barge or boat lying near the slip, by the king's head; that the gentleman cried out, for god's sake if you have any pity or compassion upon an unfortunate man, go to mr. jarrit smith, and tell him how i am used: and that the captain hearing him cry out, stopt his mouth with his hand. mr. recorder--what did the soldier desire of you? smith--the soldier desired me to enquire into it, for that he did not know the intention of taking off a gentleman in that way. mr. recorder--did you do any thing on that request of the soldier? smith--yes, sir; it immediately occurred to me, that sir john, when he left my house, told me that he was going to his lodgings. i went to his lodgings (which was at one mr. berrow's near the mint), i there asked for him, and related the story i had heard; they told me they had not seen him since he went to my house. vernon--mr. smith, sir, will you inform us by what name the unfortunate gentleman (you are speaking of) was commonly called? smith--sir john dineley goodere; his mother was a dineley, and there came a great estate from her side to him, which occasioned his being called by the name of dineley. vernon--when sir john went from your house on tuesday, was he alone, or had he any attendants with him? smith--sir john was well guarded; he had pistols, and i think his servant had pistols also. vernon--i think you told us but now, that sir john was to be with you on sunday; pray, when did you let mr. goodere know it, sir? smith--i met captain goodere that very day at blind-gate, and told him of it; and he said, he had met his brother himself. vernon--pray, sir, did mr. goodere tell you, to whom the estate would go on sir john's death? smith--yes, he has often said he was the next remainder man, and that the estate would come to himself on his brother's death. mr. recorder--well, mr. goodere, you have heard what mr. smith hath said, have you any questions to ask him? mr. shepard--mr. recorder, what i have to ask of you, with submission, in behalf of mr. goodere, is, that you will indulge counsel to put his questions for him to the court, and that the court will then be pleased to put them for him to the witnesses. it is every day's practice at the courts of westminster, old bailey, and in the circuit. _vernon_ replied that the matter was entirely in the discretion of the court, and that shepard could ask for nothing as a matter of right. the judges, i apprehend, act as they see fit on these occasions, and few of them (as far as i have observed) walk by one and the same rule in this particular; some have gone so far as to give leave for counsel to examine and cross-examine witnesses, others have bid counsel propose their questions to the court; and others again have directed that the prisoner should ask his own questions; the method of practice in this point is very variable and uncertain; but this we certainly know, that by the settled rule of law the prisoner is allowed no other counsel but the court in matters of fact, and ought either to ask his own questions of the witnesses, or else propose them himself to the court. he then asked jarrit smith one more question, to which he replied. vernon--sir, i think you were present when mr. goodere was brought to bristol after his brother's being killed; i'd be glad to know whether you then heard him say anything, and what, concerning this foul business? smith--i was present when mr. goodere was brought to bristol after this murder happened, when he was asked (before the justices) about the seizing, detaining and murdering sir john dineley; and he then directly answered that he did not know that his brother was murdered or dead. he was then asked in relation to the manner of seizing him, and carrying him away; he said he knew nothing of it till he came to the boat, and when he came there he saw his brother in the boat; but he did not know that his brother had been used at that rate. shepard--mr. smith, sir, you are speaking about sir john; by what name did you commonly call him? smith--sir john dineley goodere. the recorder--mr. goodere, have you any questions to ask mr. smith? goodere--yes, sir. mr. smith, i ask you what sir john dineley's business was with you, and how much money were you to advance? smith--five thousand pounds, sir; and i told him that i was satisfied that it was a good title. goodere--i ask you if you knew him to be a knight and a baronet? smith--i can't tell; i never saw the letters patent. goodere--can't you tell how you styled him in the writings? _vernon_ objected to this, because baronetage must be derived from letters-patent, and therefore could not be properly proved by mr. smith's personal knowledge; and added that it was not material, because the indictment alleged that the person murdered was sir john dineley goodere, and the prosecution would prove that he usually went by that name. to this _shepard_ answered that if the person killed was a baronet, and was not so described, there was a misdescription, and the prisoners could not be convicted on that indictment. _vernon_ then argued at some length that the necessity of setting out a personal description in an indictment applied only to the defendant, and that all that the law required in the description of the person on whom the offence was committed was a convenient certainty; and that a description by the christian and surname sufficed. besides, this was all begging the question, for as it did not appear in proof that the deceased was a baronet, he might, for all that appeared judicially, have been christened sir john. had we called the deceased in the indictment sir john dineley goodere baronet, then, sir, we should probably have been told that we had failed in proof of the identity of the person, for that the baronetage was in its creation annexed to, and made a concomitant on, the patentee's name of goodere, and waited only on that name; and that the deceased, considered as a baronet, was not of the maternal name of dineley, and so upon the matter no such person as sir john dineley goodere baronet ever existed _in rerum natura_.[ ] _shepard_ pointed out that they could not be expected to produce letters-patent to show that the deceased was a baronet, because the prisoner had not been allowed to see, or to have a copy of his indictment; and that it was only on hearing it read that the defence became aware that the deceased was not described as a baronet. he therefore hoped that goodere might be allowed to ask the question he proposed of mr. smith, who having been familiar with sir john, and seen all his papers and title-deeds, must know the certainty of his title and degree. _the recorder_ held that it was sufficient if the deceased was described by his christian and surname; and that the question proposed to the witness was improper, for that it was not material whether the deceased was a baronet or not.[ ] _morris hobbs_ was the landlord of the white hart. he could see mr. jarrit smith's house from his windows; and had seen the prisoners before. vernon--i would not lead you in your evidence, but would be glad you'd give an account to mr. recorder, and the jury, whether mr. goodere (the gentleman at the bar) applied to you about coming to your house; if so, pray tell us when it was, and upon what occasion? hobbs--the th of january (which was on monday) captain goodere and mahony came to my house; captain goodere asked my wife, have you good ale here? she said, yes; he also asked, what place have you over-head? i answered, a closet, a place where gentlemen usually sit to look out. will you please to let me see it, says he? yes, sir, said i. i went up to shew it, he and mahony went up; the captain said it was a very fine prospect of the town; he asked for a pint of ale, i drawed it, and he gave it to mahony, he drank it: and then the captain asked my wife, whether he might have a dish of coffee made to-morrow morning? sir, said she, it is a thing i don't make use of in my way; but, if you please, i will get it for you. then he told her, he would be there to-morrow morning by about nine o'clock. mahony was by then. vernon--did you hear this discourse pass between your wife and mr. goodere? hobbs--yes, i did, and then the captain paid for his pint of ale, and went away; and the next morning (being tuesday the th of january) he came again to my house before my wife was up, and i was making the fire (for i keep no servant). i did not know him again, i thought he was another man; says he, landlord, can't you open them windows in the parlour? i told him, i would, and so i did; he looked out, and i thought that he had been looking for somebody coming from college prayers. he asked where my wife was? says i, she is a-bed: because, said he, i talked with her about having some coffee for breakfast. i told him, she should come down presently, but i had much rather he would go down to the coffee-house, where he would have it in order. no, says he, i will have it here. my wife came down, he asked if he might go upstairs where he was before; he went up, and by and by mahony and three men more came in; i did not know mahony's name; when they came in, the captain was above stairs; he directed me to make his men eat and drink whatever they would, and he would pay for it; i brought them bread and cheese, they eat what they pleased; mahony went backwards and forwards, up stairs and down several times; he went out, but where, or what for, i did not know. vernon--did mahony, when he went up stairs, go in to mr. goodere? hobbs--yes, several times; mahony put the coffee, and some bread and butter, and made the toast, and did everything for the captain, i thought he had been his footman. when the captain had breakfasted, and had made the men welcome, he shifted himself (some porter brought fresh clothes to him). by and by a man rid along, who, i believe, was sir john goodere's man, with pistols before him; i heard somebody say that it was his man: and soon after the captain had shifted himself, mahony went out about a quarter of an hour, and came back sweating, and went up to the captain; and i looking out of the window saw the man on horseback, and leading another horse (which i took to be his master's) and by and by sir john mounted, and rid down between my house and the church; and i had some glimpse of him, and heard the captain say, look well at him, but don't touch him. the recorder--this you heard the gentleman above stairs say to the four men below? hobbs--yes, sir, he spoke these words to the four who came in. vernon--did sir john and his man appear to have any arms? hobbs--yes, sir, they had both pistols before them. vernon--those men that were along with mahony, do you know what ship they belonged to? hobbs--there was a young man, i believe something of an officer, came to my wife, and asked her, is the captain of the man-of-war here? she answered that she did not know; but there was a gentleman above, and there were six other men besides in the other room in another company, which i did not know belonged to the captain, until he ordered six pints of ale for them. the captain ordered entertainment for ten men. vernon--where were those six men? hobbs--in the kitchen; they did not belong to the man-of-war, nor were not in company with the other four. vernon--now, will you proceed to give an account what followed upon mr. goodere's saying, look well at him, but don't touch him. hobbs--as soon as sir john went down the hill, this mahony stept up to the captain and came down again, and he and the other three in his company went down the hill, and the captain followed them; the clothes which the captain pulled off were left in the room; when the captain was going out at the door with his sword and cloak, i thought i was pretty safe of my reckoning, because of his clothes being left. the captain said at the door, landlady, i will come back and pay you presently. vernon--how long was it before mr. goodere returned to your house? hobbs--he came again in about a quarter of an hour: when he came again, he went upstairs, changed a guinea, he asked what was to pay? i told him four shillings and one penny half-penny, and then went away. about an hour and a half after mahony and the other came again, sweating, and said they had been a mile or two out in the country. mahony asked credit for a tankard of ale, and said his master would come up on saturday following, and then he would pay for it: well, said i, if he is to come up on saturday, i will not stand for a tankard of ale; but if he don't come, how shall i have my reckoning? says mahony, i live at the scotch arms in marsh-street. well, said i, i will not deny drawing you a tankard of ale, if you never pay me. said he, you had best get the room ready against saturday, and make a fire, and just dust it. vernon--pray, when mr. goodere went away from your house was he in the same dress as when he came that day? hobbs--no, sir. when he came there he had a light-coloured coat, and he looked like a country farmer at his first coming in; but when he was out, he had a scarlet cloak on, wore a sword, and had a cane in his hand; a porter brought him the things. vernon--do you know any thing of what happened on the sunday following? hobbs--yes, sir; the sunday morning mahony came to my house, having trousers, a short jacket and leather cap on, asked for a quart of ale, this was sunday: my wife said, don't draw any more upon tick. mahony gave a sixpence and paid for it, and said, see that the room be clear, the captain will be up in the afternoon, and then he will be here; and as he was going out of the house, he said to me, if you fortune to see that gentleman go up with the black cap before that time, do you send a porter to me to the scotch arms. i told him i had no porter, and could not send. about o'clock in the afternoon when he came again with a person who had a scalled face, and one or two more, a man who lodged in the house came and told me, that they wanted to go up stairs; but i would not let them, because it was in service-time. they all went into the parlour, and had a quart of ale, and when that was drunk, mahony called for another; and then eight or nine men more came and called for ale, and went into the parlour, but still kept looking out; and one of them being a little fellow, i don't know his name, kept slamming the door together, ready to break the house down. says i, don't break my house down about my ears, don't think you are in marsh-street; then the little fellow came up as if he was going to strike me, as i was coming up out of the cellar with a dobbin of ale in my hand, for a gentleman going to the college; i saw this gentleman (pointing to the prisoner samuel goodere) and the deceased walk down the hill, i looked after them, and so did mahony; and then all those men rushed out, and followed them. mahony paid the reckoning, and went away: i ran in to see after my tankard for i was more afraid of losing that than the reckoning. and that is all i do know from the beginning to the end. vernon--how long did he continue at your house on the sunday? hobbs--i believe, sir, an hour and a half; and there was some or other of them still looking out and waiting at the door. the recorder--you say that mahony desired you that if you saw the gentleman in the black cap go by, to send a porter; who did you apprehend that gentleman to be? hobbs--the gentleman that rode down the tuesday. one of the jury--to what place were you to send the porter? hobbs--to the scotch arms in marsh-street, where mahony lodged, if the gentleman in the black cap did go up to mr. smith's. vernon--i think, you say, you saw mr. goodere on the sunday go down the hill, after the gentleman in the black cap? hobbs--i did, sir; but nobody at all was with him. goodere--did you see me at all that day? hobbs--yes, sir, i saw you go into mr. jarrit smith's; and when you came down the hill, after the gentleman in the black cap, you called out to mahony and his company, and bid them to look sharp. goodere--did you see anybody with me that day? i was not at your house that day. hobbs--i did not say you were; but as you was going to mr. jarrit smith's, i heard one of your men say, there goes our captain, or else i had not looked out. mahony--i beg leave, my lord, to ask him, who it was that the captain bid mahony to look sharp to? hobbs--the gentleman with the black cap. the recorder--was the gentleman in the black cap, at whose going by they all rushed out, the same gentleman whom you had seen before go to mr. jarrit smith's? hobbs--yes, sir, but mahony gave half-a-crown for my reckoning, and as they rushed out so hastily, i was afraid they had taken away my tankard; for which reason i went to look after it, and saw no more. _thomas williams, sworn._ vernon--mr. williams, i think you belonged to the _ruby_ at the time when this melancholy affair happened? williams--yes, sir. vernon--what station were you in? williams--i was ordered to walk the quarter-deck. vernon--will you give an account of what you know in relation to the ill-treatment of sir john dineley goodere? tell all you know about it. williams--i came up on sunday the th day of january last for my commander, went to his lodgings, he was not at home. i was told there that he dined that day at dr. middleton's and he was just gone there. i went to dr. middleton's after him, and he was just gone from thence; i then returned to his lodgings and found him there; i told him the barge was waiting for his honour. he asked me if i knew the river, and if i knew the brick-yard at the lime-kilns? i told him that i knew the lime-kilns, and at last i recollected that i did remember the brick-yard he meant. that is well enough, says he. while i was there, mahony came up to him, and the captain desired of me to go down stairs, for he wanted to speak to mahony in private. i went down stairs, by and by mahony came down and went away; then i went up to captain goodere again, when he directed me to get all the hands together, and go down into the barge, and, says he, let it be landed at the brick-yard. he asked me, if i knew the white hart in the college green? i told him, i did, and he directed me to take eight men up with me to the white hart, and let two remain in the boat for i have a gentleman coming on board with me. i did as i was ordered; and when i came to the white hart, i saw mahony and some of the privateer's men with him there in a room; i did not like their company; i went into the kitchen; i asked the landlord to make me a pint of toddy; he asked me, whether i would have it hot or cold; i told him a little warm; he was going about it but before it was made, mahony and the privateer's men rushed out of the house: i seeing that, followed them; they had the gentleman in possession before i came to them, and were dragging him along. i asked them what they were at? one of the privateer's men told me, if i did not hold my tongue he would throw me over the key into the river, and immediately captain goodere came there himself; the privateer's men asked what they should do with him, and he directed them to take him on board the barge. i followed them down the butts, the gentleman cried out murder, murder! mr. stephen perry, the anchor-smith, came out of his house, and asked me what was the matter; i told him i did not know: mahony said he was a murderer, he had killed a man on board the man-of-war, and that he had run away; they had carried him before a magistrate, and he was ordered back to the man-of-war to be tried by a court-martial. the recorder--was the captain within hearing at the time mahony said that? williams--he was just behind. the recorder--was he within hearing? williams--he was; and when they had brought him into the barge captain goodere desired to have the cloak put over sir john to keep him from the cold, but sir john said he did not want a cloak, neither would he have it. the privateer's men wanted me to put them on the other side the water, but i said i would not without the captain's orders. they asked the captain, and he directed me to do it, and i put them ashore at the glass-house, and just as we came over against the hot-wells, there was a gentleman standing whom sir john knew, to whom sir john cried out, sir, do you know mr. jarrit smith? but before he could speak any more, the cloak was thrown over him to prevent his crying out, and the captain told me to steer the barge on the other side, until we got clear of the noise of the people; and when we were got clear, he directed me to steer the boat in the middle, as i ought to do. i obeyed his orders. the recorder--who threw the cloak over him? williams--the captain. and the captain being as near to sir john as i am to your lordship, sir john asked the captain what he was going to do with him? says the captain, i am going to carry you on board, to save you from ruin, and from lying rotting in a gaol. vernon--and what reply did sir john make to that? williams--he said, i know better things, i believe you are going to murder me; you may as well throw me overboard, and murder me here right, as carry me on board ship and murder me. no, says the captain, i am not going to do any such thing, but i would have you make your peace with god. as i steered the boat, i heard all that passed. we brought sir john on board between and o'clock, he could hardly go up into the ship, he being so benumbed with cold; he did go up of his own accord, with the men's assistance. vernon--how was he treated on board the man-of-war? williams--sir, i don't know how they treated him after he went on board the ship. i was excused from watching that night so i went to my hammock; but after i was got out of my first sleep, i heard some people talking and walking about backwards and forwards: i was surprised; at last i peeped out of my hammock, and asked the centinel what was o'clock. he said, between two and three. and then i saw captain goodere going down the ladder from the deck towards the purser's cabin, but for what intention i know not. i believe he came from his own cabin. the recorder--whereabout is the purser's cabin? williams--the purser's cabin is in a place called the cockpit, the lower steps of the ladder is just by the door of the purser's cabin. the recorder--and it was that ladder you saw the captain go down, was it? williams--yes, sir, it was. vernon--mr. williams, you have not told us all the particulars of sir john's treatment between the seizing and carrying him to the barge. williams--one of the men had hold of one arm, and another the other, and a third person was behind shoving him along. vernon--where was captain goodere then? williams--he was just behind him. vernon--how near was he to him? williams--sometimes he was as near to him as i am to you. the recorder--how many were there in the company, do you think, in the rope-walk, when they were carrying sir john along? williams--there were five of the privateer's men, and mahony made six, and there were nine belonging to the barge; about sixteen in all. recorder--at what distance were you? williams--at a pretty great distance; i walked just before them; i saw them take him along in the manner i have said; i heard sir john cry out murder several times as he went, as they took him along the rope-walk. in answer to goodere, the witness said that he slept on the starboard side of the gun-room, and that he could see people coming down into the cockpit, because the gun-room came unusually far out; there was no other cabin but the purser's in the cockpit. he did not know where the ship lay, being but a foremast man. _samuel trivett, sworn._ vernon--will you give an account to mr. recorder and the jury of what you know relating to this business? trivett--on sunday the th of january last, i was at a public meeting in the rope-walk; i heard a noise of people cried, damn ye, stand off, or else we will knock your brains out; i stepped up, and asked what right they had to carry a man along after that manner? i followed them: their answer was, it was a midshipman who had committed murder, and they were taking him down to the ship to do him justice; other people likewise followed, enquiring what was the matter the gentleman was behind, and ordered them to make more haste. vernon--look upon the prisoner at the bar, mr. goodere; is that the gentleman that ordered them to make more haste? trivett--i believe that is the man, my lord. on the gentleman's ordering them to make more haste, five or six of them caught him up in their arms, and carried him along; and as they were got down about the corner of mr. brown's wall, he insisted upon their making more dispatch, and then they hurried him as far as captain osborn's dock. by that time his clothes were ruffled and shoved up to his arm-pits; they put him down, and settled his clothes, and then i saw his face, and knew him to be sir john dineley: he cried out murder several times, and said, they were taking him on board to kill him, he believed. as they were going with him along, he cried out to mrs. darby, for god's sake assist me, they are going to murder me. i told mrs. darby it was sir john dineley: she said she knew him; the cloak was then over his face. as they got him further, he called out to a little girl, to get somebody to assist him, for they were going to murder him. they pushed him along to mrs. new's house, and made a little stop there, and then they brought him to the water-side, where was a boat; they put out a plank with ledges nailed across: he was ordered to go on board the boat; they got him on board, and put him to sit down in the stern-sheet: then he cried out, for god's sake, gentlemen, if any of you know mr. jarrit smith in the college-green, tell him my name is sir john dineley. one of the men put his cloak and covered him, and before he could say any more, that gentleman (pointing to the prisoner goodere) took his hand and put it on his mouth, and would not let him speak any further, and ordered the boat to be pushed off, which was done; and the tide making up strong, the boat got almost to the other side. i heard that gentleman (pointing as before) say, have you not given the rogues of lawyers money enough already? do you want to give them more? i will take care that they shall never have any more of you; now i'll take care of you. the recorder--prisoners, will either of you ask this witness any questions? goodere--no, i never saw the man before in my life. _thomas charmsbury, sworn._ charmsbury--on sunday the th of january last, between the hours of four and five in the afternoon, i was on board the ship called the _levant_, lying in mr. thompson's dock; i heard a noise coming over the bridge of the dock, and i saw a man in a scarlet cloak, and a parcel of people, some before and some behind, guarding of him, and he made a noise. i went towards them, to see what was the matter, and at mr. stephen perry's counting-house (they rested) i asked, what was the matter? they said, he had killed a man on board a man-of-war; that he had run away; and they had had him before a magistrate, and he was ordered on board the king's ship to be carried round to london to take his trial. mr. perry (on hearing the noise) came out and saw him; says mr. perry, gentlemen, do you know what you are about? i would not be in your coats for a thousand pounds, for it is 'squire goodere. they threatened to knock down any that should come near; a fellow, i take him to be mahony, came up to me, and threatened to knock me down several times. they took and carried him as far as captain james day's lofts and warehouse, where he keeps his hemp; and there they rested him again, and threatened to knock down any that should come near them. then said mahony, damn ye, here comes the captain. immediately i turned about, and saw a gentleman with his cane poised in one hand, and his sword in the other; he had a dark shag coat and yellow buttons, whom i take to be that gentleman the prisoner at the bar. they took up the man in the scarlet cloak again, and carried him so far as coming out from the lower college-green into the rope-walk: the prisoner goodere came up to them and ordered them to mend their pace; they took him up again, and carried him as far as brown's garden, at the lower end of the rope-walk, as fast as they could well carry him, where they settled his clothes, and in the meanwhile the prisoner goodere came up to them again, and ordered them to mend their pace. with much difficulty they got him between the gate and stile, and carried him as far as the warehouse at the corner of the glass-house, there they rested and settled his clothes again; then they took him up, and carried him down to the lime-kilns, as far as the lower part of the wall below madam new's; and then brought him down to a place opposite to the king's-head, and then they put him on board a boat (i take it the man-of-war's barge) having ten oars, and they handed him in. after, the prisoner goodere went into the boat after him, and set sir john on the starboard-side, and the prisoner goodere on the larboard-side; then sir john cried out, murder! you gentlemen that are on shore, pray tell mr. jarrit smith that my name is dineley, and before he could say goodere the gentleman took up the flap of the cloak, threw it over the face of sir john, and stopped his mouth; and says he, i will take care of you, that you shall not spend your estate; and ordered the barge to be put off; and then he took the gentleman's cloak from his shoulders, and put it on his own. the recorder--who was it that stopped his mouth with his cloak? charmsbury--that gentleman the prisoner at the bar. the boat was so full, had so many people in it, that they were obliged to row but with eight oars: and when they proceeded down the river, it being about three quarters flood, and the gentleman continually crying out, they went out of sight, and i saw no more of them. _mrs. darby_, who lived at the limekilns, saw sir john forced along between two men; he was crying out, murder, murder! for the lord's sake save me, save me, for they are going to kill me. she knew sir john very well; she had mended his chair for him last summer; she was told that the gentleman at the bar was the captain of the man-of-war; he was dressed in a dark drab-coloured coat, and his waistcoat was trimmed with gold. she heard sir john cry out something as he was being hurried into the boat, but she could not hear what. _william dupree_ was drinking at the king's head with a friend, and a young woman who was reading at the window said she heard a great noise, on which they went out, and saw a company of men forcing a gentleman along, the prisoner goodere coming behind them. they said that he had murdered a man, and that they were taking him on board for justice. they put him on the yawl, while captain goodere stood by. he cried out, 'for god's sake! go and acquaint mr. jarrit smith, for i am undone, they will murder me.' the witness went back to the king's head, where the people advised him to go to mr. jarrit smith and inform him of it, which he did. when sir john cried out he saw goodere put his hand on his mouth. _theodore court, master of the ship, sworn._ vernon--will you tell mr. recorder and the jury what you know concerning the death of sir john dineley goodere? t. court--on the th of january last, being sunday, the barge went up to fetch captain goodere from bristol, and about seven of the clock in the evening he came on board, and when he came into the gangway, says he, how do you all do, gentlemen? excuse me, gentlemen, from going the right way to-night, for i have brought an old mad fellow on board and i must take care of him. i saw a gentleman with a black cap coming up the ship's side, and his groans shocked me, so that i could not help him; he looked much surprised as a person used ill; as soon as he was on board he was taken into custody, and carried by the captain's orders down to the cockpit, and put into the purser's cabin, and a centinel ordered upon him; and i saw him no more at that time. next morning i was told that the captain's brother was murdered, and that the captain had given charles white and mahony leave to go on shore. the recorder--by whose direction was he put into the purser's cabin? t. court--the captain himself went down and saw them put him in. vernon--whereabout in the ship is the purser's cabin? t. court--in the cock-pit. vernon--was it a place where gentlemen who came on board commonly lay? t. court--no, nobody had laid in it for a considerable time. the next morning the cooper met me, and said, here is fine doings to-night, mr. court! why, what is the matter? said i. why, said he, about three o'clock this morning they went down and murdered sir john. the ship was in an uproar; the cooper said, if mr. perry (the lieutenant) did not secure the captain, he would write to the board; we had several consultations in the ship about it. the captain sent for me to breakfast with him: i accepted his invitation; i can't say but he behaved with a very good name to all the people on board. about ten o'clock mr. perry, myself, and the other officers, with the cooper, consulted about securing the captain. mr. perry cautioned us not to be too hot; for, said he, if we secure the captain before we know sir john is dead, i shall be broke, and you too. we send for the carpenter, and desired him to go down and open the cabin-door, the centinel who stood there having said it was lock'd; the carpenter went down, opened the cabin-door, and came up, and said sir john was murdered; and that he lay on his left side, with his leg up crooked. i told them, gentlemen, there is nothing to be done before the coroner comes; and therefore we must not touch him: whereupon the door was ordered to be fastened up; we then consulted how to take the captain, and a method was agreed on for that purpose. and as soon as the captain was taken, he declared he was innocent of it, that he knew not that his brother was murdered. when the coroner came, i saw the deceased, and my heart ached for him. the recorder--who was it put the centinel upon sir john? t. court--the captain ordered it to be done. vernon--is it usual to place a centinel at the purser's cabin-door? t. court--no, it is not; unless there be somebody there under confinement. vernon--is there any other cabin near the purser's? t. court--yes, there is the slop-room just by; there the cooper and his wife lay that night: there is just a little partition of about half-inch deal, parting the slop-room from the place where sir john lay confined. vernon--pray, will you tell us whether any and what discourse passed between mr. goodere and you, about sailing, and when it was? t. court--sir, in the morning he asked me, will the wind serve to sail? he said, he had another pressing letter from the lords of the admiralty to sail as soon as possible. i told him that the wind was west-south-west, and that we could not go out to sea; for no pilot would take charge of the ship i believed. and as this is a harbour where a pilot is allowed, i don't pass for this place; otherwise i must have observed his orders. vernon--did he acquaint you how far or to what part, he would have you sail? t. court--yes, he said, if he got no further than the holmes, he did not care; and asked me if it was safe riding there. i told him it was not; for it was foul ground for such a ship as ours. the recorder--mr. goodere, will you ask this witness any questions? goodere--what cabins are there in the cock-pit? t. court--i know no cabins there but the purser's cabin and the slop-room, etc. vernon--call mr. williams. _william williams_ produced a watch which he had found in a vault in back street. culliford, who kept the brockware boat on the back, had reported at the council house, when he was examined there, that a watch and some money had been left at his house; but his wife, when asked for them, denied the watch, but afterwards admitted that she had thrown it into the vault where the witness afterwards found it. _t. court_ said that the captain had had a watch like the one produced. in answer to goodere, he said that there were in the cockpit the steward's room, the purser's cabin, and the slop-room. the ship had been moored on thursday the th of january. when sir john was murdered she lay in the king road; the witness then described the position of the ship with greater detail. _vernon_ interposed to state that the ship was in the king road, which was well known to be within the franchise of the city: the sheriffs of the city continually executed writs there; and such a serious matter ought not to be decided on a side wind. _duncan buchanan_, one of the crew of the _ruby_, was ordered to go to the white hart on tuesday the th of january, and there were mahony and the privateer's men drinking hot flip. he saw a gentleman come out of mr. smith's; he was mounted, and had pistols before him; he was followed by a servant, also armed. some of the men ran out, and goodere followed them and ordered them to follow the gentleman. on the th, the barge came alongside the ship, about seven in the evening, with the gentleman in it. the witness stood in the gangway to receive him. when he came up, i heard him make a moan, and the captain said, i have brought a madman on board, bring him along, i will bring him to his senses by-and-by. i saw them take him along the gangway. you must not mind what he says, said the captain; and he was ordered down to the purser's cabin: i was ordered centinel there. about twelve o'clock the captain sent for me to come up to him, and i laid down my sword and went up, and mahony was there with him; and there was a bottle of rum and a glass before them: the captain asked me to drink a dram, i thanked him and drank. he asked me how his brother was? i told him he groaned a little; says the captain, i know the reason of that, he is wet, and i am coming down by-and-by to shift him with dry stockings: so i left the captain and mahony together. some time after the captain came down to me as i was at my post at the purser's cabin; he asked if his brother made a noise; i told him no; upon which the captain listened a little time at the door, and then said, give me the sword, and do you walk upon deck, for i want to speak to my brother in private. soon after this mahony went down, and very soon after mahony was down, i heard a great struggling in the cabin, and the gentleman cry out murder! i then thought the gentleman had been in one of his mad fits; but now i suppose they were then strangling him. as i was walking to-and-fro in the gun-room, i looked down, and saw the captain take the candle out of the lanthorn, which was hanging up there, and he gave the candle into the cabin. the recorder--where was mr. goodere when you heard the cry of murder? buchanan--in the cock-pit by the purser's cabin-door, with the sword in his hand. the recorder--what time of the night was this? buchanan--between two and three o'clock; i lighted a candle at the lanthorn in the gun-room, and was going down to the captain with it, as supposing him to be without light; and as i was going down with it, the captain held up his sword, waved it, and said, go back, and stay where you are. the recorder--you said that sir john dineley cried out murder! was that before you offered the candle to the captain? buchanan--yes, sir; it was before. the recorder--how long? buchanan--about a quarter of an hour. the recorder--how long did the cry of murder continue? buchanan--about three or four minutes; soon after the captain had ordered me to keep back, he called for a candle, and i carried one down, and he gave me the sword, and bid me stand upon my post; and said he, if my brother makes any more noise, let him alone and send for me; and he locked the purser's cabin-door, and took the key away with him; and in the morning the doctor's mate, the cooper, and i consulted together about it; and i was willing to know, if sir john was dead or not: and when we peeped into the cabin, we saw him lying in a very odd sort of posture, with his hat over his face, and one of his legs lay crooked; upon which we concluded he was dead. the recorder--how long were you off your post from first to last? buchanan--i can't tell exactly. the recorder--recollect as well as you can. buchanan--about three quarters of an hour. the recorder--and could you see who was at the purser's cabin-door all that time? buchanan--yes, sir; i saw the captain stand at the foot of the ladder at the door, with a drawn sword, from the time i went up to the time i came down again; he locked the door, and carried the key away with him. vernon--pray, were there any bolts on the purser's cabin-door? buchanan--yes, there were bolts on the door; they were put on soon after sir john came on board: sir john was in that cabin when they were put on. vernon--you say you heard a noise and outcry of murder; how far were you from the cabin-door when you heard that cry of murder? buchanan--i was walking to-and-fro the gun-room. vernon--how far is that from the purser's cabin-door? buchanan--as far as i am from you. vernon--whom did you see go into the purser's cabin to sir john? buchanan--i saw mahony go in there. vernon--did you see any other person go in besides mahony? buchanan--no, i did not; i saw mahony go in just before the cry of murder, but no other person. vernon--do you know any thing about securing the captain? buchanan--yes, i will tell you what happened then. we went and secured him. as soon as he was laid hold of, he cried out, hey! hey! what have i done? we told him his brother was murdered, and that he had some concern in it. he said, what if the villains have murdered my brother, can i help it? i know nothing of it. goodere--did you see me in the cabin at all? buchanan--no, sir, i don't say you were in the cabin. the recorder--mr. goodere, the witness does not say he saw you in the cabin, but at the door, and with a sword in your hand, and that you handed in a light after the cry of murder was over. goodere--i could not have been in the cabin without buchanan's seeing me go in, because he stood at the bulkhead of the gun-room. the recorder--mahony, will you ask this witness any questions? mahony--are you certain that i was in the cabin when you heard the groans? buchanan--i am positive you were there in the purser's cabin when i heard the murder cried out. _daniel weller, sworn._ vernon--i think you are the carpenter belonging to the _ruby_ man-of-war? weller--yes, sir, i am. vernon--give an account to mr. recorder and the jury of what you know relating to this business. weller--the th of january last, about seven o'clock in the evening, the captain came on board in the barge; as i attended him, i observed he seemed in a pleasant humour, he came upon the deck at once, and said he had brought a poor crazy man on board, who had been the ruin of himself and family, and that he had now brought him on board to take care of him: he took him down to the cock-pit, and having been there a little while, one of my people came and asked for some bolts; i asked, what for? he told me it was to put on the outside of the purser's cabin-door, to bolt the crazy gentleman in. i gave him a bolt; after he had nailed it on, he came and wanted another: i had another, gave it to him, and went down to see the bolts put on. sir john cried out, what are you doing, nailing the door up? i answered, no. i ordered the door to be opened, to turn the points of the nails. the door being opened, sir john asked whether the carpenter was there? i told him i was the man. the centinel told me no-body must go in there; however, i went in, while they turned the points of the nails. sir john bid me sit down, and asked me, what does my brother mean by bringing me on board in this manner, to murder me? no, sir, says i, i hope not, but to take care of you. he asked me, if his brother told me that he was mad? i saw no more of him till next morning. vernon--and what did you see then? weller--next morning the lieutenant sent me down to see if sir john was dead. i went down and asked the centinel for the key; he told me the captain had been there in the night, and had taken away the key in his pocket. i broke open the cabin-door, and sir john was lying on one side dead, with his right leg half up bent, his hat was over his face, with blood bespattered about his mouth and nose. i went directly up, and told the lieutenant of it. the recorder--by whose orders did you put the bolts on the door? weller--one of my people came to me for bolts, and told me he was ordered by the captain to put the bolts on; and none of them ever came for any thing to be done, without an order of an officer. _edward jones, sworn._ vernon--mr. jones, i think you are the cooper of the ship _ruby_? jones--yes, sir. vernon--were you on board upon sunday the th of january last? jones--yes, sir, i was. vernon--in what cabin did you lie that night? jones--i had no cabin, but i made bold to lie in the slop-room that night, having my wife on board. vernon--pray what is that you call the slop-room? jones--it is like a cabin. vernon--how near is the slop-room to the purser's cabin? jones--nothing but a thin deal-partition parts it from the purser's cabin. vernon--will you relate to mr. recorder and the jury what you know about the murder of mr. goodere's brother; tell the whole you know concerning it. jones--about wednesday or thursday before this happened, the captain said to me, cooper, get this purser's cabin cleaned out, for he said he expected a gentleman shortly to come on board. i cleaned it out; and on sunday evening the gentleman came on board, when the people on deck cried, cooper, shew a light. i brought a light, saw the captain going down the cock-pit ladder, the gentleman was hauled down: he complained of a pain in his thigh by their hauling him on board. the captain asked him, if he would have a dram? he said no; for he had drank nothing but water for two years. the captain ordered mahony a dram; he drank it; he also ordered one jack lee to put two bolts on the purser's cabin-door. the gentleman walked to-and-fro the purser's cabin while they were nailing the bolts on. he wanted to speak with one of the officers. the carpenter told him he was the carpenter. says the gentleman, do you understand what my brother sam is going to do with me? and said, his brother had brought him on board to murder him that night. the carpenter said, he hoped not, but what was done was for his good. the captain said, they must not mind what his brother said, for he had been mad for a twelvemonth past. and the captain went up again, and went into the doctor's room. i went to bed about eight o'clock. some time about eleven o'clock at night i heard the gentleman knock, and said, he wanted to ease himself; to which the centinel gave no manner of heed. is it not a shame, said he, to keep a gentleman in, after this manner? at last, some other person spoke to the centinel, and says, why don't you go up and acquaint the captain of it, that the gentleman may ease himself? soon after mahony comes down with a bucket, for the gentleman to ease himself. mahony sat down in the cabin, and he and the gentleman had a great deal of discourse together; the gentleman said he had been at the east-indies, and told what he had got for his merit; and mahony said, some by good friends. i heard the gentleman, after mahony was gone, pray to god to be his comforter under his affliction. he said to himself, he knew that he was going to be murdered, and prayed that it might come to light by one means or another. i took no notice of it, because i thought him a crazy man. i slept a little, and about two or three o'clock my wife waked me. she said, don't you hear the noise that is made by the gentleman? i believe they are killing him. i then heard him kick, and cry out, here are twenty guineas, take it; don't murder me; must i die! must i die! o my life! and gave several kecks with his throat, and then he was still. i got up in my bed upon my knees: i saw a light glimmering in at the crack, and saw that same man, mahony, with a candle in his hand. the gentleman was lying on one side. charles white was there, and he put out his hand to pull the gentleman upright. i heard mahony cry out, damn ye, let us get his watch out; but white said he could not get at it. i could not see his pockets. white laid hold of him, went to tumbling him up to get out his money, unbuttoned his breeches to get out his watch; i saw him lay hold of the chain; white gave mahony the watch, who put it in his pocket; and white put his hand into one of the gentleman's pockets, and cursed that there was nothing but silver: but he put his hand in the other pocket, and there he found gold. white was going to give mahony the gold: damn ye, says mahony, keep it till by-and-by. the recorder--in what posture did sir john lie at that time? jones--he lay in a very uneasy manner, with one leg up; and when they moved him, he still remained so, which gave me a suspicion that he was dead. white put his hand in another pocket, took out nothing but a piece of paper, was going to read it. damn ye, said mahony, don't stand to read it. i saw a person's hand on the throat of this gentleman, and heard the person say, 'tis done, and well done. the recorder--was that a third person's hand, or the hand of mahony or white? jones--i cannot say whether it was a third person's hand or not. i saw but two persons in the cabin, i did not see the person, for it was done in a moment. i can't swear i saw any more than two persons in the cabin. the recorder--did you take notice of the hand that was laid on sir john's throat? jones--i did. the recorder--did it appear to you like the hand of a common sailor? jones--no; it seemed whiter. vernon--you have seen two hands held up at the bar. i would ask you to which of them it was most like in colour? jones--i have often seen mahony's and white's hands, and i thought the hand was whiter than either of theirs; and i think it was neither of their hands by the colour of it. the recorder--was sir john on the floor, or on the bed? jones--on the bed; but there was no sheets: it was a flock-bed, and nobody had lain there a great while. vernon--how long did the cries and noise which you heard continue? jones--not a great while: he cried like a person going out of the world, very low. at my hearing it, i would have got out in the mean time, but my wife desired me not to go, for she was afraid there was somebody at the door that would kill me. vernon--what more do you know concerning this matter, or of mahony and white's being afterwards put on shore? jones--i heard some talking that the yaul was to go to shore about four of the clock in the morning, and some of us were called up, and i importuned my wife to let me go out. i called, and asked who is centinel? duncan buchanan answered, it is i. oh, says i, is it you? i then thought myself safe. i jumpt out in my shirt, went to him; says i, there have been a devilish noise to-night in the cabin, duncan, do you know any thing of the matter? they have certainly killed the gentleman, what shall us do? i went to the cabin-door where the doctor's mate lodged, asked him if he had heard any thing to-night? i heard a great noise, said he. i believe, said i, they have killed that gentleman. he said, he believed so too. i drawed aside the scuttle that looked into the purser's cabin from the steward's room, and cried, sir, if you are alive, speak. he did not speak. i took a long stick, and endeavoured to move him, but found he was dead. i told the doctor's mate that i thought he was the proper person to relate the matter to the officer, but he did not care to do it then. if you will not, i will, said i. i went up to the lieutenant and desired him to come out of his cabin to me. what is the matter, said he? i told him i believed there had been murder committed in the cock-pit, upon the gentleman who was brought on board last night. oh! don't say so, says the lieutenant. in that interim, whilst we were talking about it, mr. marsh the midshipman came, and said, that there was an order to carry white and mahony on shore. i then swore they should not go on shore, for there was murder committed. the lieutenant said, pray be easy, it can't be so; i don't believe the captain would do any such thing. that gentleman there, mr. marsh, went to ask the captain if mahony and white must be put on shore? and mr. marsh returned again, and said, that the captain said they should. i then said, it is certainly true that the gentleman is murdered between them. i did not see mahony and white that morning, because they were put on shore. i told the lieutenant, that if he would not take care of the matter, i would write up to the admiralty, and to the mayor of bristol. the lieutenant wanted the captain to drink a glass of wine: the captain would not come out of his cabin; then the lieutenant went in first; i followed him. i told the captain that my chest had been broke open, and i desired justice might be done. then i seized him, and several others came to my assistance. the recorder--mr. goodere, do you ask mr. jones any questions? goodere--do you know whether the midshipman was sent away on the king's business, or else only to put those two men on shore? jones--i know not, you were the captain of the ship. the recorder--mahony, will you ask this witness any questions? mahony--did you see me lay hands on the gentleman? jones--yes, i did, as i have already related. _margaret jones, sworn._ vernon--mrs. jones, pray acquaint mr. recorder and the jury what you know about the murder of sir john dineley goodere (the gentleman ordered by mr. goodere into the purser's cabin). mrs. jones--about seven o'clock in the evening, the th of last january, the captain (having been on shore) came on board, and came down into the cock-pit, and asked if the cabin was clean? my husband answered, yes. on which the captain gave orders to bring down the gentleman; and the captain said to the doctor, doctor, i have got an old mad fellow here, you must doctor him up as well as you can. they brought the gentleman into the cabin, the captain asked him how he did now? the gentleman complained that he had a great pain in his thigh, he was hurted by the men's hauling him as they had done. the captain asked him if he would drink a dram of rum? he answered, no; for he said he had drank nothing but water for two years past. the captain gave a dram to several persons there; and he gave orders for some sheets to be brought; and he said to mahony, as his clothes are wet, do you pull them off. and the gentleman said to mahony, don't strip me, fellow, until i am dead. the gentleman said, brother sam, what do you intend to do with me? the captain told him that he brought him there to save him from rotting in a gaol. about ten o'clock mahony was left there; the gentleman desired him to go; but mahony said, i have orders to abide here, to take care of you. the gentleman said to mahony, i can abide by myself. before the captain went away, he bid mahony to see if his brother had any knife about him. the gentleman gave up his knife to mahony, desired him to take care of it, for it was his son's knife. the gentleman asked about the knife several times in the night. about twelve o'clock i went to sleep; about two o'clock i wakened again: i heard the gentleman talk to mahony, but mahony advised the gentleman to go to sleep. he said, i cannot sleep. they talked together a great while. mahony said, i am to go on shore in the morning, and if you have any letters to send to bristol, i will carry them for you. i heard somebody say to the gentleman, you must lie still, and not speak a word for your life. some minutes after i heard a great struggling; who it was, i don't know. the gentleman cried out, murder; help for god's sake! and made several kecks in his throat, as though somebody was stifling him. i shook my husband, told him that somebody was stifling the gentleman. i heard two people in the cabin whispering; i don't know who they were. the gentleman cried out murder again, help for god's sake! he said, i have twenty guineas in my pocket, here take it; must i die! oh, my life! and just about that time, before he was dead, somebody from the outside offered to come into the cabin, but i heard one of the persons on the inside say, keep out, you negro; and then a great noise was made; i thought the cabin would have been beat down. some few minutes after the gentleman had done struggling, a candle was brought: i soon got up, and looked through the crevice: i saw a man, who i believe to be white, take the gentleman by the coat, and pulled him upright. i saw mahony with a candle in his hand; i observed the other to put his hand in the gentleman's pocket. one of them said, damn ye, pull out his watch. then i saw the person take hold of the watch-string and pull it out, and he said to the other, here 'tis, take it, and put it into thy pocket. then one of them put his hand in another pocket, and took it out, said, here's nothing but silver; and then he searched another pocket, and said, here it is; and pulled out a green purse: soon after that, the door was unbolted, i heard a person say, where shall i run? who i believe was mahony; and the other, charles white, said, follow me, boy. and they went to go upon deck through the hatch-hole, which is an uncommon way; and that is all i know. the recorder--mr. goodere and mahony, do either of you ask this witness any questions? goodere--no. mahony--no. _james dudgeon, sworn._ vernon--mr. dudgeon, i think you are the surgeon's mate belonging to the _ruby_? dudgeon--yes, sir. vernon--give mr. recorder and the jury an account what you know relating to this matter. dudgeon--i am very sorry that i should come on this occasion against captain goodere, because he ever behaved towards me in a genteel manner. the week before this happened, i was told by one of the officers, that the captain was going to bring his brother on board; and on sunday the th of january, about the dusk of the evening, the barge came down to the ship. i was at that time walking the quarter-deck; some of our people seeing the barge a-coming they said, our captain is coming on board with his brother sure enough: but instead of coming up the quarter-deck, the captain went down upon the main-deck, and i still kept walking on the quarter-deck, expecting to see the gentleman when he went into the great cabin, but i afterwards found that he was ordered down to the cock-pit. soon after, i went down there myself; and the captain being there, said, doctor, i have brought a madman to you, i don't know what we shall do with him, but we must make the best of him that we can; and mahony came down likewise. the captain sent his steward for a bottle of rum, mahony had a dram of it. the captain asked sir john if he would have one? sir john replied, no; for, said he, i have not drank any thing of that nature for two years past; he groaned several times. there was then one cole at the foot of the ladder, to whom also the captain gave a dram; then there was a centinel put upon the cabin-door; but cole asked the captain if he might go in, and the captain said he might. the old gentleman made a noise as the captain went up the ladder; the captain told him, we have now brought you on board, and will take care you shall want for nothing. after the captain was gone, cole wanted to go in, but the centinel would not let him; telling him that his orders were to let none in but mahony: however, cole went up and got leave of the captain to go in, and he did go in. soon after this the captain came down again to the cock-pit, and came into my place, and sat down; and after talking of things promiscuously, he said, he believed it would be proper for me to go and feel his brother's pulse; or else, doctor, he said, do you chuse to leave it alone till to-morrow morning? i made answer, that to-morrow morning might be the best time; because the gentleman may be much confused by being brought down on the water. come, said he, let us go in now; for i believe it will be as well. if you please, sir, said i, i will; so the centinel opened the door, and we both went in. immediately after, the captain went out again, and forthwith the door was shut upon me: which very much surprised me, to think that the captain should leave me with a madman, and i observed the captain to peep through; i then asked the gentleman what he mostly complained of? and felt his pulse. he then made some groans, and told me, that he had got a great cold last week at bath, and that he felt a severe pain in his head. i was going to ask him some more questions, but the captain called me, and said, don't ask him any more questions, but only feel his pulse. then the centinel opened the door, and i came out, and the captain and i went into my place again. well, doctor, said he, how do you find his pulse? why, sir, said i, his pulses are very regular. why, said he, i believe he was pretty much hurried upon the water. then the captain went up the ladder, and a little while after he came down again; there were two midshipmen with me in my place, and when the captain came in, they went to go out, but he desired one of them to stay, for he had something to say to him, because he was to go up for letters in the morning; so we sat down, and talked of various things; but i informed the captain that the old gentleman have had hard lodging to-night. why, said he, i would put another bed in there, and have given him clean sheets, but he would not hear anything of this kind. then said he to me, doctor, i believe it will not be amiss to take an inventory of everything he has about him, for fear it should be reported that he is robbed. i replied, sir, it may not be amiss. by-and-by, cole came tumbling down the ladder, the midshipman opened the curtain to see who it was; captain, said he, that is cole, and i then told that cole had been drunk a great part of that day. soon after that the captain opens the curtain, and sees mahony stand by the centry. mahony, said he, i thought you had been about the thing which i sent you to do; which i take to be getting the money out of the gentleman's pocket. no, sir, said he, i chuse to do it after he is asleep. very well, said the captain. then the captain spoke to the midshipman, and said, mr. marsh, you are to go up for letters to-morrow, and if anyone takes notice of what was done to-day, you may tell the people that it is my brother, and he is very much disordered in his brains, and i have got him on board in hopes of getting relief for him. sometimes, doctor, says he, he can talk as well as you or i; but at other times, he is very much out of order. about eight o'clock i was for going to bed, but did not till an hour and a half after; and about that time sir john was making a great noise, and asking who is without the door, what must i do my affairs in the cabin? what a shame is it? will not you let me have anything to do it in? but nobody made any reply. upon which i said to the centinel, why don't you answer the gentleman? are not you ashamed of it? upon which, i suppose, one went up to the captain and he came down, and said, he was sorry that the gentleman should make such a disturbance; but he hoped, that the first night would be the worst: upon which the captain went up, and mahony went in; and i heard the gentleman and him talking together, and he asked mahony, what his brother was going to do with him? what, says he, does he say i am mad? formerly i used to be so, but now i have not tasted any thing stronger than water these two years. but, said he, to be sure these fellows are not sailors who attacked me this day; they are not sailors, for, if so, they are sadly degenerated from what sailors were formerly, for i myself have been at sea, and might have been a commander. about half an hour after ten, i fell asleep, but was very uneasy. about twelve the centinel was sent for to go up to the captain, but soon came down again; and about half an hour after two i awaked, hearing some stir in the cock-pit; and i heard mahony's voice in the cabin, saying, lie still and sleep, sir. in a short time after that i heard a struggle, and sir john cried out, here is guineas for you, take it; must i die? and it seemed to me, by his speaking, that they were stifling his mouth. upon which the person who stood centry upon the cabin turned the key, whereupon mahony cried out in a terrible pucker, damn ye, keep the door fast. upon which i spake, and said, what is the matter? what a noise is that? and the person who stood centinel made answer, nothing at all, nothing at all; so i lay still a while, and all was pretty quiet. a little time after that, mahony called for a light, and the cabin-door was opened, and a light handed in; the cock-pit was then in darkness, so all was quiet again for some time. soon after that the cabin-door was opened again, and i heard as if two or three people were coming out of the cabin, and heard mahony say, which way shall i go? and somebody made answer, you may go through the hatch-hole. he repeated the question, which way shall i go? and the other answered, by the ship-side. i then thought somebody had been murdering sir john sure enough, and they are carrying off his body that way; at the same time a person stept up the cock-pit ladder, and i heard the captain's voice, and he said, centry, if he makes any more noise, let me know it; but i thought within myself, that he was past that. after this was past, all was pretty quiet, and the centinel kept walking without my room: i was cautious of speaking to him, not knowing who he was; but soon after, one of the captain's servants came down to the store-room for liquor, and he asked the centry whether he had made any noise lately? to which he replied, you may tell the captain that the gentleman hath been at the lock. about half an hour after, the person who was upon the watch came to me, and asked, if i had any commands on shore, for the boat was going up? i told him, no; but perceiving by his voice who it was, i called him to come to me in the dark, and i whispered, and said to him, mr. heathorne, here hath been a hellish cabal to-night, i believe they have murdered the gentleman; doth mahony go on shore? he answered, that he did; then, said i, the thing is done. i then asked who was the centry without my door? and he told me; whereupon i called the centry to me, and asked him, what noise and cabal is this that hath been here to-night? he said, he did not know; but the captain, said he, hath been down several times to-night, and that he had taken the sword from him. just after this, in came edward jones, the cooper, and his wife shaking and trembling; and said, white and mahony had murdered the gentleman sure enough. i told them, i did believe they were both going on shore; and i would, said i, have you tell the lieutenant what you saw of the matter, and let him know that i am of the same opinion with you: but do you first go into the steward's room, and draw the scuttle, and then you'll see whether he is dead, or no. upon which they went and drawed the scuttle, and a cat fled in their face, and they found the gentleman lay in the same posture as white and mahony left him. i then bid them go and tell the lieutenant the matter, that those fellows might be prevented from going ashore; but yet, said i, we can't stop them neither, seeing they have the captain's orders. then went jones up forthwith, and i believe, told the lieutenant; and i also stept up to him just after, and told him, that i believed sir john was actually murdered; for, said i, there have been a terrible noise in the cock-pit to-night, and the captain himself was there this morning when 'twas almost three o'clock, and the men that were with him are going on shore. the lieutenant answered, that he could not stop these men from going ashore, because the captain hath given them leave; so, said he, we must let it alone till morning, to see whether the gentleman is dead, or no. about eight o'clock in the morning i went to him again; but he told me it was best to defer it till we did see whether the captain sends down to him, or not. it is, said he, no way proper for us to think of seizing the captain, till we see that the gentleman is actually dead, and have reason to think he is murdered. when the captain's breakfast was ready, he sent for the lieutenant and me to come and breakfast with him: accordingly we did; and soon after there was a shore-boat came towards us, and then mr. chamberlayn came on board, and went to the lieutenant's cabin; and the lieutenant told that gentleman, that they were then going to seize the captain, for it was believed that he had been accessary to the murder of his brother. immediately a message was brought by one of the men, that sir john was dead: upon which the captain was forthwith seized by eight or ten men. vernon--how far was your cabin from the purser's? dudgeon--i can't say certainly, but believe about three yards. vernon--did you view the body of the deceased whilst he lay dead in the purser's cabin? dudgeon--i did. vernon--and did you find any visible marks of violence upon him? dudgeon--sir, i saw no rope, but he had a neck-cloth about his neck, and there were some marks in his neck, which looked like the scratching of nails; and i believe that he was strangled, the blood came out of his nose and mouth. _william macguinis_ was in his hammock when sir john was brought aboard, but was called up at twelve o'clock to stand sentinel in the gun-room. i had not been long on my post before i saw the captain come down; and soon after i saw mahony, that man there (pointing at the prisoner mahony), also come down. i stopt him, and asked him where he was going? damn your blood, you son of a bitch, what is that to you? how busy you make yourself. and when he came to the bottom of the cock-pit ladder i heard him say to another man, come here, this is the way. but who it was he spake to, i know not. this was a little after two o'clock. the captain espied me, he made towards me, and waved his naked cutlass, and said, stand back! stand back! the captain was down in the cockpit then. buchanan had been sentinel in the cockpit, but had been released by the captain. the witness saw mahony go into the purser's cabin, and afterwards saw the captain and mahony come up again from the cockpit; it was then about three o'clock. _walker_ found a watch in the necessary house in the brockware boat, a public-house on the back, kept by culliford. he searched for it by the order of the justices; when he found it, the watch was in one place, and the case in another, about a yard off. _sarah culliford_, of the brockware boat, received the watch from mahony. she had it in her possession about two hours before and two hours after he was taken up. this young man (meaning the prisoner mahony) was drinking in my house, he pulled out the watch, delivered it to me, and desired me to keep it for him until he did call for it; some time after i had business to go out, i went into town, and had the watch in my pocket; when i came back, my children told me that the constable had been there to search the house for it, which much surprised me; i went and threw the watch into the necessary house for fear i should come into trouble. john fussell--i had this handkerchief from mahony on the th of january last, the night when we took him, i found it on his neck; when he was seized he took it off; i took it out of his hand, it was bloody then as it is now, i put it into my pocket. _john mitchel_, the chief clerk to the town clerk, produced the examination of matthew mahony, taken before the mayor, voluntarily signed by mahony in the mayor's presence, and signed by the mayor. _clerk reads the examination in these words:_ city and county of bristol, to wit. the voluntary examination and confession of matthew mahony, a native of ireland, aged about years. this examinant confesseth and saith, that about sixteen or seventeen days ago, and several times since, he was desired by mr. goodere, captain of the _ruby_ man-of-war, now lying at king-road, in the county of the city of bristol, to seize his, the captain's, brother, sir john dineley goodere, bart., and bring him on board the said man-of-war; and that on tuesday last, this examinant, and the crew belonging to the man-of-war's barge, and edward mac-daniel, john mac-graree, and william hammon, privateer's men, were placed by the said captain at the white-hart alehouse, opposite st. augustine's church, in order to seize sir john dineley goodere that day; but it so happened that the captain forbid them to do it then. and that on sunday last, this examinant, the said barge's crew, or the greatest part of them, and george best, cock-stern of the barge, the said edward mac-daniel, john mac-graree, william hammon, and one charles bryer, privateer's men as aforesaid, were again placed at the white-hart aforesaid, to seize the said sir john dineley goodere, and waited there for some time; and he coming out of mr. jarrit smith's house, and coming under st. augustine's church-yard wall, this examinant and his comrades pursued him, and near the pump there they came up with him, and told him there was a gentleman wanted to speak with him; and he, asking where the gentleman was, was answered, a little way off, and he went quietly a little way; but no one appearing, he resisted and refused to go; whereupon this examinant and comrades sometimes forcibly hauled and pushed, and at other times carried him over st. augustine's butts, captain day's rope-walk, and along the road to the hot-well (captain goodere being sometimes a little behind, and sometimes amongst the crowd all the way), till they came to the slip where the barge lay. but sir john was very unwilling to go, made the utmost resistance, and cried out murder a great many times; and when he was put into the barge, called out and desired somebody would go to mr. jarrit smith, and tell him of his ill-usage, and that his name was sir john dineley; whereupon the captain clapt his hand on sir john's mouth to stop him speaking, and told him not to make such a noise, he had got him out of the lion's mouth (meaning the lawyer's hands), and would take care he should not spend his estate; and bid the barge men row away, which they did; and in their passage to the man-of-war, the two brothers bickered all the way. but when they came to the man-of-war, sir john went on board as well as he could, and the captain took him down into the purser's cabin, and stayed a little time with him, and treated him with a dram of rum, and then left him for a considerable time; and in the interim sent for this examinant into his, the captain's cabin, and there told this examinant he must murder his brother, for that he was mad, and should not live till four o'clock in the morning; and this examinant reasoning with him, and telling him he would not be concerned and that he thought he had brought him there with intent only to bring him to reason, and take care that he should not spend his estate in law, and to have a perfect reconciliation: but the captain still insisting, that this examinant had taken him, he should do it; and this examinant then saying, he was not able to do it of himself, the captain replied, if this examinant could get nobody else, he and this examinant must do it themselves. and then ordered him to call one elisha cole; and he being too drunk to undertake such an affair, bid this examinant call one charles white, a very stout lusty fellow, and the captain gave him a dram, and bid him sit down, and soon gave other drams, and asked him if he could fight, and told him, here is a madman, he must be murdered and thou shalt have a handsome reward. and this examinant, the said charles white, and the captain, all being agreed to murder the said sir john dineley goodere, the captain then proposed the method, and produced a piece of half-inch rope about nine foot long, and charles white having made a noose in the rope, the captain said, applying himself to this examinant and the said charles white, you must strangle him with this rope, and at the same time gave the handkerchief now produced, that in case he made a noise, to stop his mouth; and said, i will stand sentinel over the door whilst you do it; and accordingly instantly went out of his own cabin, and turned the centinel from the purser's cabin-door, and let this examinant and white into the purser's cabin, where sir john dineley goodere was lying in his clothes on a bed. the captain having pulled to the door, and standing centinel himself, the said white first strangled sir john with his hands, and then put the rope about sir john's neck and hauled it tight, and sir john struggled, and endeavoured to cry out, but could not. and this examinant confesses, that whilst white was strangling sir john, this examinant took care to keep him on the bed, and when one end of the rope was loose, this examinant drew and held it tight; and thus each bore a part till sir john was dead; and they having rifled the deceased of his watch and money, knocked at the door to be let out; and the captain called out, have you done? they replied, yes. he opened the door, and asked again, is he dead? and being answered in the affirmative, and having a light, swore, by god, he would be sure he was dead; and then went in himself, and returning, locked the door, and put the key in his pocket, and they all went together to the captain's cabin again, and there this examinant gave the captain sir john's watch, and the captain gave this examinant his own watch in lieu of it; and then the captain gave them both some money, and white afterwards gave this examinant eight guineas as part of the money he took out of the deceased's pocket, and then the captain ordered them to be put on shore in his own boat. and further this examinant confesses and saith, that before and after the murder was committed, the captain, charles white, and this examinant consulted what to do with the corpse; and the captain proposed to keep it two or three days in the ship, and, as he expected to go to sea, would sew it up in a hammock, or something else, and there throw it over-board. and that before this examinant and his comrades were sent to seize sir john, as is before set forth, they were ordered by captain goodere, that, if they met with any resistance, they should repel force by force, and were prepared with short heavy sticks or bludgeons for that purpose. matthew mahony. the recorder cautioned the jury that this statement was evidence against mahony only, and was not to be taken as evidence against goodere. _vernon_ said that this concluded his evidence as to the facts; but that as goodere had made a point as to the position of the ship, he would call evidence to show that the king road had always been taken to lie within the city and county of bristol; and that the sheriff's officers of bristol had always used to execute both city and county process in the king road. _john wint_ and _lowden_ were called, and proved that they had served process out of the mayor's and the piepowder court, and process issued out of the king's bench, and the common pleas, and the admiralty court, in the king road. _goodere_ being called on for his defence, said that he would call witnesses to prove that sir john was a lunatic, and that he was doing his best to take care of him. _mrs. gethins_ said that goodere had asked her for a garret to keep his brother in, for he was a madman; he made no secret of it. she had heard nothing about mahony having five pounds a month to take care of him. she had heard goodere talk with his own doctor about his brother. _mr. marsh, sworn._ goodere--did you go ashore in the morning about the king's business, or what business did you go about? marsh--i had an order about eight o'clock the night sir john was brought on board, to go up in the morning to bristol for the letters from the admiralty, and about four of the clock in the morning i was called up to go: but the lieutenant seemed much disordered, and bid me come to him before i set out. i waited on the lieutenant, and told him, that white and mahony said they had liberty to go on shore, that the captain had given them liberty to go; the lieutenant said, he knew nothing of it. but as it is always my way, before i carry anybody off, i said, i would go to the captain and ask leave. i went to the captain, and asked him, if white and mahony had liberty from him to go on shore? and he said, yes, let them go. goodere--mr. marsh, did you go upon the king's business, or on purpose to take up these men? marsh--i went about the king's business. vernon--but it was after sir john was brought on board, that mr. goodere ordered you to go up? marsh--yes, sir, it was. vernon--did anybody else go up with you, besides mahony and white? marsh--no, there did not. vernon--did mr. goodere give you orders to put them on shore in any particular place? marsh--i will do justice between man and man: the captain did not give me orders to put them on shore in any particular place. vernon--were they landed publicly or privately? marsh--i put them on shore at the gibb, about six of the clock in the morning. goodere--now, may it please you, sir, i shall show that mahony had business at bristol that day by appointment, to receive some wages that was due to him; for which purpose i shall call mr. dagg. _abel dagg_, the keeper of newgate, had had one mervin in his house as a prisoner for debt. mahony had a claim against him for wages due to him before he was pressed, and mervin wished to settle the matter with him. accordingly dagg had seen goodere on the tuesday or wednesday before this matter, and he said that he would meet dagg to accommodate the difference on the monday following. the captain made the appointment to meet him on the monday, but he told taylor, an attorney, that mahony would come on shore on monday. he did not know that white had any business on shore on monday. _bridget king_ was sworn. goodere--mrs. king, will you give the court an account of what you know of the lunacy of my brother sir john dineley? mrs. king--please you, my lord, i think he was mad; for he would get up at two or three of the clock in the morning, and call his servants up, and fall a-singing; and then he would go to bed again, and swear it was but twelve o'clock at night, and lie a-bed all day. he would send his boy out all over his grounds to pick up stones, and have the wheel-barrow rattling about the streets on a sunday: he hath ringed the bell to call his servants up to his bedside, and when they were come up, he would ask them what they did there, and swear they were come to shoot him? he himself hath gone over all his grounds on a sunday to pick sticks, and hath sent his servants to market when there was none; and he would be busy in every thing, and hang on the pot himself; and he hath been quite raving mad. vernon--did you live as a servant to sir john? mrs. king--i lived as a servant with him in london, and he came down for the air to tockington; he brought me down to go to bath. vernon--how long did you continue with him? mrs. king--a twelve-month, sir. vernon--and how durst you venture to live so long with a madman? he did not go mad for love of you, i hope? have you lived any time in bristol? mrs. king--no. vernon--then i suppose you came but now from london? mrs. king--yes, i did. goodere--do you believe he was a madman? mrs. king--in the actions that i have seen by him, i have reason to think he was a madman. _mrs. mary stafford, sworn._ goodere--mrs. stafford, will you tell his lordship and the jury what you know of sir john's being a lunatic? mrs. stafford--sir john hired me for a housekeeper in london, and told me he had a great many servants, and he wanted a housekeeper. when he brought me down, he ordered me to his seat at tockington; where, he said, he had a great deal of company frequently. when i came there, i found there was nothing in what he had told me; for, instead of a great many servants, he had but one: a poor old shattered house, ready to tumble down about one's ears, and the household goods all to pieces: he was a madman, for if i had followed his directions in any thing i should have done mischief. he hath sent me and the rest of his servants to thornbury market, when there was none; he hath ringed the bell to call his servants to come to his bedside to him, and when we have come up to him, he hath asked us, what we did there? sir, said i, you called me up; he hath said he did not: and after we had been there a quarter of an hour, he would take a knife, fork, glass-bottle, or anything that came in his way, to throw at us, asking of us, what did we come to rob him? and i was afraid of my life, to live with him. i do believe he was a madman, or else he would never have acted as he did; he would go into the kitchen, and take the pot, and hang it on the fire. i style him a madman by his actions. vernon--and must he therefore be hanged himself like a mad dog, think you? mrs. stafford--i know nothing of that, sir. vernon--how long did you live with sir john? mrs. stafford--three months, sir. goodere--call mr. robert cock. the recorder--what do you call him to prove? goodere--my lord, in order to prove sir john dineley a lunatic. mr. cock, will you give an account to my lord and the jury what you know of the lunacy of sir john dineley? _robert cock, sworn._ cock--my lord, i have known mr. dineley at charlton for some years; i have been several times in his company; i have seen him do several acts of lunacy, as a madman. vernon--where do you live? cock--i live in cumberland, when i am at home. vernon--are you of any business? cock--i am an officer belonging to his majesty. vernon--what kind of officer? cock--a salt officer. goodere--i will not give your lordship and the jury much more trouble. i am entirely innocent; they have not proved that i was present at the death of sir john dineley. the recorder--don't deceive yourself; though they have not proved you was actually in the cabin, when sir john was murdered, yet they have given evidence of that, which (if the jury give credit to) will amount to presence in the eye of the law. goodere--i shall now call some witnesses to my character, and likewise to shew how improbable it is that i should be guilty of the murder of my brother. call mr. pritchard. _mr. pritchard_ had known goodere many years; he always bore the character of a good husband, a good neighbour, and a kind friend. _the rev. mr. watkins_, three months or half a year before sir john's death, had told goodere that sir john had told him that he had made his will and cut his brother off from everything, and had given his estate to the footes. the witness had found sir john a good neighbour, and a kind friend; he was a man of strong passions, and if any one affronted him, he would let the party know that he did resent it. his tenants, and those the witness had conversed with, said that he was one of the best of landlords. vernon--i don't ask you, sir, concerning his moral character; but whether he was in his senses or not? watkins--in his senses! i saw him last christmas, he was making up his accounts with several of his tenants; he was then in very good understanding. i take him to have been a man that always had his senses in a regular exercise. vernon--what have you heard the prisoner mr. goodere say in relation to sir john's making his will? watkins--i believe he told me that sir john had not the power to make a will; i told him it was my opinion, if they would be reconciled together, sir john's will would not stand. _mr. thomas_ and _mr. ashfield_ and the _rev. mr. rogers_ spoke in general terms to goodere's good character. _george forcevil_ had known him for fourteen or fifteen years; he had a very good character in the neighbourhood; he constantly attended his church twice a day sundays, and would be there at prayers almost every day. he thought him to be a good man. _goodere_ said he would not trouble the court with any more evidence as to his character; he was deprived of some evidence by reason of his sickness in gaol, which prevented his friends from coming to advise him about his defence; also there were witnesses on board the ship who might have been of great service to him, but the ship had sailed before he got an order from the admiralty ordering them to stay on shore. _frederick_ drew the recorder's attention to the fact that there had been several aspersions in the newspapers to the prejudice of goodere, and that a pamphlet had been published in bristol called _the bristol fratricide_; but he hoped that the jury would not be influenced by such matters against the prisoner. the jury declared that they had never seen any such pamphlet or newspapers. vernon--mr. recorder, we must beg leave to ask mr. jarrit smith's opinion, as to sir john's being a lunatic or not? smith--i am surprised to hear it said by some of mr. goodere's witnesses that sir john dineley goodere was mad. i knew him fourteen or fifteen years, and conversed with him both in person and by letter; but never discovered that he was in the least disordered in his senses, i always took him to be a man of sound understanding. on the sunday before his death, he expressed himself with a great deal of good nature and affection at the sight of his brother. _shepard_ proposed to call evidence to show that the place where the ship lay was not in the city and county of bristol. _the recorder_ said that the evidence that had been given as to the service of writs, proved that the king's road was within the jurisdiction, and it was admitted that the ship lay within the road. if, however, the prisoner could show that any part of the road was, or ever had been esteemed to be, within any other county than the county of the city of bristol, he would hear him. he then asked mahony if he had anything to say. mahony--i hope your lordship will consider that i was a poor, pressed servant, and that i was drunk when i made the confession, and i was frightened out of my wits. mr. recorder--you say you were drunk when you made the confession; it is possible, that night when you were taken and brought before the magistrates you were in liquor, but it seems your confession was not taken until the next day. _vernon_ then replied on the whole case; confining himself to pointing out that if goodere was abetting mahony in killing sir john, it made no difference that he was not in the cabin at the time that he was killed. _shepard_ replied, trying to distinguish goodere's case from those which had been cited by vernon, and suggesting that goodere only brought his brother on board the ship in order that he might take proper care of him; but the recorder stopped him, pointing out that he was going off from the point of law to matter of fact. he said that he should tell the jury that if they believed that goodere stood at the cabin door to prevent any persons coming who might prevent the murder, or to encourage those within in the business they were about, they must find him guilty on the indictment. he then recapitulated the facts in some detail, but did not add any comment. he concluded by laying down the law as to whether goodere was an accessory to what was done, in the sense already indicated, and told the jury that, in such a case as the present, they would be well-advised not to attach much weight to the evidence given as to goodere's character. the jury thereupon retired, and after a short space returned, and found both the prisoners guilty. the next day charles white was tried on a separate indictment for the same murder. he pleaded not guilty, but was convicted, chiefly on the evidence of jones the cooper and his wife, and his own confession. on the next day all three prisoners were brought up, and having nothing to say for themselves were all sentenced to death. they were all hung at bristol on the th of april, having confessed the fact. 'the body of mahony is hung in chains near the place where the horrid fact was committed.' footnotes: [ ] samuel goodere ( - ) entered the navy in , served through the war of spanish succession, but in was found guilty by a court-martial of having been very much wanting in the performance of his duty in the attack on st. sebastian in the same year. he was temporarily appointed to another ship for rank in . he was then living with his father, who had quarrelled with john; and apparently john had quarrelled with his wife, who was supported against him by samuel. the father's will disappointed both sons, and john, having cut off the entail of his estate during his son's life, after his death announced his intention of leaving it to one of the footes, a cousin of the actor, which probably led to his murder. samuel left two sons; it seems doubtful whether they succeeded to the baronetcy. the elder died insane. the younger became a poor knight at windsor, and dropped the name of goodere. he made himself conspicuous by the oddity of his behaviour. he believed that a small sum of money expended in law-proceedings would realise a fortune, and that that money would be obtained through a wife. he therefore frequented crowded places, and on seeing any woman or girl he did not know would present her respectfully with a printed proposal of marriage. he died in . [ ] sir michael foster ( - ) entered exeter college , was called to the bar in , and practised locally at his native town of marlborough. he became recorder of bristol in , and a puisne judge of the king's bench in . he enjoyed a great reputation as a master of crown law, and was the author of the well-known _discourses_ on that subject. [ ] after mentioning certain obsolete rules relating to indictments, sir james stephen says:--'i do not think that anything has tended more strongly to bring the law into discredit than the importance attached to such technicalities as these. as far as they went, their tendency was to make the administration of justice a solemn farce. such scandals do not seem, however, to have been unpopular. indeed, i have some doubt whether they were not popular, as they did mitigate, though in an irrational, capricious manner, the excessive severity of the old criminal law' (_hist. crim. law_, vol. i. p. ). [ ] it is curious that shepard did not take the point that the prisoner was not described as a baronet, which he in fact became on his brother's murder. till recently such an objection would have been fatal. index albemarle, duke of, takes information in lord russell's case, ii. . albert, archduke, sends embassy to james i., i. ; cobham's connection with, . aldridge, george, witness against cowper, how he left the town, ii. , . aleyn, sir thomas, witness against col. turner, i. - , , , , . amy, henry, wounds of french and lord warwick; arrival at the bagnio of other duellists; condition of their swords, ii. . anderson, lord chief-justice, i. . andrews, doctor, i. . anglesey, lord, gives evidence in favour of lord russell, ii. , . applegate, chairman, witness against lord warwick, ii. - ; carried lord mohun to leicester fields, ; carried french to the bagnio, ; mohun tried to stop quarrel, . arabella. _see_ stewart, lady arabella. aremberg, duke of, ambassador of henry iv., i. ; overtures to, , , , , , ; raleigh's account of, , , , . argyle, duke of, and lord russell's plot, ii. . armstrong, sir thomas, and lord russell, ii. , , , ; and the rye house plot, . arundel, lord, at raleigh's execution, i. , . atterbury, a witness in lord russell's trial, ii. . axtel, daniel, regicide, i. , ; statement by, as to hulet, . babington, dr., witness against cowper, ii. . barefoot, mrs., witness for cowper, ii. . barter, witness against lady lisle, i. , ; re-examined as to dunne's statements, . beavor, witness against peters, i. , . berry, james, found sarah stout drowned, ii. , . blisset, col., witness for lord warwick, ii. - ; warwick gives coote guineas, ; friendship between them, . blunt, charles, earl of devon, i. . bocking, jane, bewitched, i. , . bowd, witness for cowper, as to sarah stout's melancholy, ii. , . bownes, john, regicide, i. . bradshaw, john. _see_ charles i., i. - , ; discusses authority of court, - ; asks the king to plead, , ; declares sentence settled, king to be heard, , ; final speech by, - . brandon, george, the executioner of charles i., i. , , . bridgman, sir orlando. _see_ harrison, peters, and hulet, i. , ; tries col. turner, . brook, george, i. - , ; and the 'bye,' , ; cecil's examination of, ; pension to, , ; and copley, ; examination of, ; book given to, , ; and arabella stewart, . browne, sir thomas, witness against the suffolk witches, i. . browne, thomas, chairman, witness against lord warwick, ii. - ; carried coote to leicester fields, ; tried to carry coote to the surgeon, ; cross-examined, , . buchanan, david, witness against goodere, ii. - ; goodere and mahony at sir john's cabin, , . burnet, dr., gives evidence in favour of lord russell, ii. - ; accompanies him to the scaffold, . campbell, sir ----, and lord russell's plot, ii. . campian, edmund, jesuit, i. . capel, lord, execution of, i. . carew, advises raleigh to escape, i. . ---- john, regicide, i. . carpenter, dunne's evidence as to, ii. , ; witness against lady lisle, . castlewood, lord, duel with lord mohun, ii. - . cavendish, lord, gives evidence in favour of lord russell, ii. . cawthorne, witness against lord warwick, ii. - ; french and coote start from locket's and return, , ; quarrel at locket's, ; party leave locket's, , ; cross-examination, - ; heard no quarrel between warwick and coote, ; quarrel at locket's, - . chamberlain, sir t., witness against turner, i. , , . chandler, susan, bewitched, i. ; state of, at the assizes, ; evidence as to, ; recovers on verdict, . charles, prince of wales, i. . charles i., trial of, i. - : assembling of the high court, - ; charge read, , ; authority of court discussed, - ; the court adjourns and re-assembles, ; king charged, authority of court discussed, and king refuses to plead, - ; court adjourns and re-assembles, ; solicitor-general demands judgment, - ; king charged and refuses to plead, - ; court adjourns and re-assembles, ; sentence agreed on, king to be heard, , ; king demands to be heard by lords and commons and is refused, - ; bradshaw's speech, - ; sentence on the king, . charles ii. and the regicides, i. - . clement, seaman, witness against cowper, as to corpses floating, ii. - . clifford, lord, witness for lord russell, ii. . coatsworth, surgeon, witness against cowper, ii. , , , . cobham, lord. _see_ raleigh, i. - ; in opposition, ; overtures to french and spanish, ; raleigh accuses, ; avows raleigh's guilt; ; not a witness, , - , - ; takes message to aremberg, ; letter to, from raleigh, ; raleigh's instigation of, , ; examination of, , , , ; raleigh's reply to, , ; second examination of, , , , ; cecil's examination of, , ; coke's argument as to raleigh's complicity with, - ; raleigh's confession as to, ; letter to the lords, , ; to raleigh, , . cochram, sir john, and lord russell's plot, ii. , . coke. _see_ raleigh's trial, i. - ; opening speech by, - ; on raleigh's connection with cobham, - ; on cobham's letter, - ; final sentence of raleigh by, . cook, john, solicitor to the commonwealth, i. , , . coote, opening as to, in lord warwick's case, ii. - ; leaves locket's first and returns, ; leaves with warwick and lord mohun, , ; no quarrel with warwick, , , , , , , , ; quarrel with french, ; conversation of, with warwick and mohun in st. martin's lane, , , ; wounded in leicester square, , ; death of, ; killed by french, ; news of his death, ; warwick's account of the death of, , ; receives money from warwick, , . copley, i. ; his confession, , . corriton, prosecutes lady lisle, i. . cotton, sir robert, king charles taken to his house, i. , , . court, theodore, witness against goodere, master of the _ruby_, ii. - , . cowper, dr. w., witness for spencer cowper, ii. . ---- spencer, trial of, ii. - ; opening of case against, - ; at sarah stout's house, walker's evidence, - ; sarah stout's melancholy, - ; the finding of sarah stout's body, - ; medical evidence for the prosecution, - ; evidence as to dead bodies floating, - ; how cowper left hertford, , ; cowper's defence, - ; the finding of the body, - ; medical evidence, evidence of sir hans sloane, etc., - ; sarah stout's melancholy, - ; sarah stout and mr. marshall, - ; letters to marshall, - ; letters to cowper, - ; cowper's connection with sarah stout, - ; summing up, - ; acquittal and appeal proceedings, , . cowper, william, witness for spencer cowper, ii. - . ---- mrs., evidence of, for spencer cowper, as to sarah stout's melancholy, ii. , . cox, dr. thomas, witness for lord russell, ii. . ---- william, witness against hulet, i. . crattle, james, witness against lord warwick, ii. - ; carried him to leicester square, ; and to the bagnio, . creed, witness for lady lisle, i. . crippes, william, witness against lord warwick, ii. - ; helped to carry coote to leicester fields, ; conversation in st. martin's lane, , ; coote wounded, . cromwell, oliver, and peters, i. - , , . cullender, rose, trial of, i. - ; indictment, ; bewitched the pacys, ; , ; and the durents, ; and susan chandler, ; touches the children in court, ; bewitches soam's cart, ; and sherringham's beasts, ; defence of, ; summing up and verdict as to, . dew, robert, witness for cowper, as to finding sarah stout's body, ii. - . dimsdale, john (senior), surgeon, witness against cowper, ii. - . ---- ---- surgeon, witness against cowper, ii. - , . dockwra, opening as to, in lord warwick's case, ii. ; arrival at the bagnio, ; tried for murder of coote, and convicted of manslaughter, . doncaster, lord, at raleigh's execution, i. , . duckinfield, captain loftus, witness against lord warwick, ii. - ; interview with warwick, james, and dockwra, ; french killed coote, ; warwick fought with james, ; duellists to leave london, ; condition of warwick's sword, . dunne, james, witness against lady lisle, i. ; examination in chief, - ; cross-examination of, - ; re-examined as to what he told lady lisle, - ; re-examined as to arrests at moyles court, - ; final examination of, - . duny, amy, trial of, for witchcraft, i. - ; indictment, ; bewitches william durent, , ; and elizabeth durent, ; and dorothy durent, ; touches elizabeth pacy, ; bewitches elizabeth pacy, - ; admission by, ; bewitches diana booking, ; present while a child is touched by another, ; bewitches geese, a chimney, and a firkin of fish, , ; defence by, ; summing up as to, and verdict, . durent, ann, bewitched, i. , ; state of, at the assizes, . durent, elizabeth, bewitched, i. ; bewitched by amy duny, , . ---- william, bewitched, i. ; bewitched by amy duny, . esmond, henry, present at duel between lord castlewood and lord mohun, ii. - . essex, earl of, i. , , , . ---- ---- and lord russell, ii. ; howard's evidence as to, , . fairfax, lady, interrupts charles i.'s trial, i. . fane, guides dunne to moyles court, i. . ferguson, and lord russell, ii. , . finch, sir heneage, i. ; prosecutes russell when solicitor-general, ; speech of, - . fleetwood, george, i. . ford, sir richard, sheriff, complaint against, in turner's trial, i. ; at turner's execution, . foster, sir richard, tries goodere, ii. . foster, sir robert, i. . french, opening as to, in lord warwick's case, ii. - ; leaves locket's first, and returns, ; quarrel with coote, ; wounded, ; arrival at the bagnio, ; condition of his sword, , ; killed coote, ; tried for murder of coote, and convicted of manslaughter, . fry, elizabeth, witness against turner, i. , . garland, austin, regicide, i. . garth, dr., witness for cowper, ii. , . gin, richard, seaman, witness against cowper as to corpses floating, ii. , . gittens, witness against hulet, i. - . glover, cornelius, witness against peters, i. , . goodall, witness against lord warwick, arrival of the duellists at the bagnio, ii. . goodere, sir john. _see_ goodere, samuel. ---- samuel, trial of, ii. - ; vernon opens the case, - ; sir john at jarrit smith's house, , ; meets goodere there, , ; counsel's right to cross-examine, ; description of sir john in the indictment, , ; goodere visits the white hart, - ; sir john carried to the _ruby_, - ; sir john on the _ruby_, - ; sir john murdered, - ; mahony's confession, - ; question of jurisdiction, ; sir john's madness, - ; goodere's character, ; defence, ; summing up, verdict and sentence, . gore, mr. sutton, witness for lord russell, ii. . gregory, clement, regicide, i. . grey, lord, connection with raleigh, i. - , , ; cecil arrests, . grey of werk, lord, and lord russell, ii. , , , , . gunter, witness against peters, i. , . gurrey, john, mrs., and elizabeth, witnesses against stephens, etc., their conduct and conversation in hertford, ii. - . hacker, francis, regicide, i. . hale, sir matthew, trial of suffolk witches by, i. ; lord campbell on, _n._ hamilton, duke of, execution of, i. . hampden, john, and lord russell, ii. ; howard's evidence as to, . harrison, colonel thomas, trial of, i. - ; pleads after discussion, , ; present in the high court, ; and at a committee meeting, , ; conducted the king from hurst castle to london, , ; defence of, - ; sentence on, , . hatsell, sir henry, tries spencer cowper, ii. . hawles, sir john, prosecutes lord warwick when solicitor-general, ii. - . heale, serjeant, i. . henry, prince of wales, raleigh's pupil, i. . henry iv. of france, i. . hevingham, william, regicide, i. . hewson, colonel, and king charles's execution, i. , , . hicks, and lady lisle, i. ; tried and hanged, ; lady lisle agrees to receive, ; journey with dunne, ; discovered at moyles court, ; message to, and reception by, lady lisle, - . hide, sir robert, i. ; tries colonel turner, i. ; summing up of, , . hill, william, witness against turner, i. , , . hobbs, morris, witness against goodere, landlord of the white hart, ii. - ; goodere's first visit, - ; his second visit, - . holland, earl of, execution of, i. . hollis, denzil, i. , . holt, john, defends lord russell, ii. . howard, thomas, earl of suffolk, i. . ---- henry, earl of northampton, i. . ---- of escrick, lord, and lord russell, ii. ; witness against lord russell, ii. - ; declarations of russell's innocence, - , - , , . ---- mr., gives evidence in favour of lord russell, ii. - . hulet, william, trial of, i. - ; on the scaffold of charles i., i. ; statements by, and reports as to, - ; sentence on, , . ireton, general, and peters, i. , , . james, opening as to, in lord warwick's trial, ii. - ; sent for to locket's, ; tries to stop the quarrel, ; arrival at the bagnio, ; condition of his sword, ; fought with warwick, ; tried for murder of coote, and convicted of manslaughter, . jeffreys, lord chief-justice, tries lady lisle, i. - ; summing up of, - ; and the jury, - ; prosecutes lord russell when a serjeant, ii. . jenkins, sir leoline, takes information in lord russell's case, ii. . jones, conducts prosecution of cowper, ii. . ---- edward, witness against goodere, ii. - ; saw murder of sir john, ; helped to arrest captain, . ---- mrs., witness against goodere, saw murder of sir john, ii. , . ---- john, regicide, i. . keeting, captain, witness for lord warwick, ii. , . kelyng, sir john, i. ; action in trial of suffolk witches, i. , . kemish, francis, i. , . la chesnee, i. , . lawrency, raleigh plots with, i. , , ; examination of, . le clerc, i. , . leeds, duke of, cross-examination by, in lord warwick's trial, ii. , . lilburne, robert, i. . lisle, john, husband of lady lisle, i. . ---- lady alice, trial of, i. - ; agrees to receive hicks, , ; dunne's first account of her reception of hicks, etc., - ; barter's account of the same, ; dunne's second account, - ; denial of, as to hicks and nelthorp, ; dunne's third account, - ; defence of, , ; summing up as to, - ; verdict, ; sentence, , ; execution of, ; reversal of attainder of, , . macartney, captain, second to lord castlewood, ii. - . mallett, sir robert, tries the regicides, i. . manchester, lord, tries the regicides, i. . markham, sir griffen, and the 'bye,' i. , , . marshall, witness for cowper, acquaintance with sarah stout, ii. , ; letters from sarah stout, , . marson, john (see cowper, spencer, trial of, ii. - ); leaves london and arrives at hertford, , ; conversation at gurrey's, ; at the devil, ; character of, , ; summing up, - ; verdict, . marten, henry, regicide, i. , . masterson, witness against harrison, i. . melvile, lord, and lord russell's plot, ii. . meyn, simon, regicide, i. . millington, gilbert, regicide, i. . ---- witness against turner, i. , . milton, john, i. . mohun, lord, ii. ; true bill against, ; opening as to, - ; tries to stop quarrel at locket's, , , , ; leaves with lord warwick and coote, , ; conversation of, with coote and warwick in st. martin's lane, , ; trial and acquittal of, ; duel with lord castlewood, - . monmouth, duke of, and lord russell, ii. , , ; connection with lord howard, - , , , . montague, lord chief-baron, tries russell, ii. . mortimer, dr., witness against peters, i. , . mosely, witness for turner, i. . mundy, prosecutes lady lisle, i. . nailor, dr., witness against cowper, ii. . nelson, lieut.-col., witness against hulet, i. . nelthorpe, brought to lady lisle by dunne, i. ; discovered at moyles court, ; reception by lady lisle, - . nevill, sir edward, opinion of, in lord warwick's case, ii. . newburgh, lord, witness against harrison, i. . normanby, marquis of, cross-examination by, in lord warwick's trial, ii. . northampton, lord, at raleigh's execution, i. . north, sir dudley, appointed sheriff of london, ii. . ---- francis, prosecutes lord russell, ii. ; opens the case, . northumberland, earl of, i. , . nunnelly, richard, witness against peters, i. , . nutley, witness against harrison, i. . pacy, deborah, bewitched, i. ; too ill to be brought to the assizes, ; evidence as to, - . ---- elizabeth, bewitched, i. ; state of, at the assizes, ; being unconscious at the assizes, recognises and assaults amy duny, ; evidence as to, - . palmer, sir geoffrey, i. . payton, sir john, i. . pemberton, sir francis, lord chief-justice, tries russell, ii. . pennington, isaac, i. . penruddock, john, i. . ---- col., i. ; witness against lady lisle, as to at moyles court, arrests - . peterborough, earl of, cross-examines in lord warwick's case, ii. . peters, hugh, trial of, i. - ; pleads, , ; in pembrokeshire, , ; escape from london with cromwell, ; replies to dr. young, , ; consultations with cromwell, , ; with ireton and others at windsor, , ; in the painted chamber, ; rode before the king into london, ; at the trial and execution, , ; his preachings, , ; his defence, , ; summing up and sentence, - . phillips, serjeant, in raleigh's trial, i. , . pollexfen, defends lord russell, ii. ; prosecutes lady lisle, . pomfret, witness against lord warwick, servant at the bagnio, ii. - ; arrival of warwick and french, ; and dockwra and james, ; state of the swords, - . popham, lord chief-justice, i. , ; examination by, of lord cobham, . potter, vincent, regicide, i. . powys, sir thomas, appears for lord warwick, ii. , . preston, sir amyas, i. . pretty, account of hulet by, i. . raleigh, sir walter, trial of, i. - ; position on accession of james i., ; overtures of, to french and spaniards, , ; examination and arrest, ; indictment, - ; coke's opening, - ; cobham's examination, , ; raleigh's answer, , ; cobham's second examination, , ; raleigh's answer, , ; his connection with cobham, , ; two witnesses required, - ; examinations of watson, etc., ; of raleigh, ; cobham not called, - , - ; examinations of raleigh, cobham, and others, - ; book against the title of the king, - ; letter to cobham, ; lady arabella stewart, , ; dyer's evidence, ; phillip's speech, ; cobham's letter to the lords, , ; to raleigh, , ; verdict, ; sentence, - ; life in the tower and the guiana expedition, - ; condemnation, ; letter to the king, , ; to his wife, - ; execution, , . raymund, edmund, witness for lord warwick, ii. . regicides. _see_ harrison, thomas; peters, hugh; hulet, william; and note i. p. . rich, appointed sheriff of london, ii. . ---- col., and peters, i. , . richardson, thomas, witness against peters, i. . ---- mrs., evidence against marson, ii. . roe, owen, regicide, i. . rogers, william (_see_ cowper, spencer, trial of, ii. - ); leaves london and arrives at hertford, - ; conversation at gurrey's, ; summing up, - ; verdict, . rumsey, witness against lord russell, takes message from shaftesbury to the conspirators, ii. - , , , , , , . russell, lord, trial of, ii. - ; charges against, ; objections to jurors, , , ; north opens case against, - ; rumsey's evidence against, as to meetings in sheppard's house, - ; sheppard's evidence as to the same, - ; lord howard's evidence against, as to shaftesbury's plot, - ; and russell's plot, - ; west's evidence as to connection of with trenchard, , ; speech of, on question of law, , ; replies thereto, - ; reply of, to rumsey's evidence, , ; evidence as to declarations by howard, - ; evidence as to character, , ; howard's reply, - ; conclusion of speech of, , ; reply by solicitor-general, - ; summing up, - ; verdict and sentence, ; execution of, and statement by, - ; reversal of attainder of, . salisbury, earl of (_see_ raleigh); connection with raleigh's trial, i. - ; judge in raleigh's trial, ; plots revealed to, . salmon, witness against lord warwick; describes coote's wounds, ii. . sandeswell, ann, witness against the suffolk witches, i. . savoy, duke of, and raleigh, i. . sawyer, sir robert, prosecutes lord russell when attorney-general, ii. . scot, thomas, regicide, i. . scroope, adrian, regicide, i. . shaftesbury, earl of, connection with lord russell's trial, ii. - ; message of, to conspirators, ; connection with howard, - , , , , . sheppard, conspiracy at the house of, ii. , , ; witness as to meetings of conspirators, , . sherringham, robert, witness against the suffolk witches, i. . sidney, col. algernon, and lord russell, ii. ; howard's evidence as to, . simpson, holland, witness against peters, i. . sloane, sir hans, witness for cowper, ii. , . smith, aaron, conspires with lord russell, ii. , , . ---- abraham, watchman, witness against hulet, i. , . ---- jarrit, witness against goodere; two visits of sir john to, and reconciliation of brothers at his house, ii. - . soam, john, witness against the suffolk witches, i. somers, lord john, ii. . somerset, duke of, and the guiana expedition, i. . ---- ---- witness for lord russell, ii. . spencer, mr., witness for lord russell, ii. . stanhope, col., witness for lord warwick, ii. , . starkey, witness against peters, i. , . stephen, sir james, on coke, i. ; on validity of lord russell's objection to the jury, ii. ; on benefit of clergy, , ; on indictments, . stephens, ellis (_see_ cowper, spencer, trial of, ii. - ); leaves london and arrives at hertford, ; conversation at gurrey's house, ; journey to hertford, ; summing up, - ; verdict, . stewart, charles. _see_ charles i. and charles ii. ---- lady arabella, i. ; accusations against raleigh as to, ; raleigh's denial, , , , , ; statement on behalf of, . stout, mrs., takes proceedings for an appeal against turner, ii. , . ---- sarah. _see_ cowper. stringer, justice's visit to turner, i. . stubbards, col., and trial of charles i., i. . stukely, vice-admiral, i. - , . suffolk witches, i. - . _see_ cullender, rose; and duny, amy. sully, duke of, ambassador to james i., i. . tasker, major ralph, witness against turner, i. , . temple, james, regicide, i. . ---- peter, regicide, i. . tench, and charles i.'s scaffold, i. . thomlinson, col., in charge of charles i., i. . tichburne, robert, regicide, i. , . tillotson, dr., witness for lord russell, ii. , ; accompanies him to the scaffold, . toogood, witness as to admissions by hulet, i. . treby, lord chief-justice, opinion of, in lord warwick's case, ii. , . trenchard, the rising of, ii. , , . trevor, thomas lord, prosecutes the earl of warwick when attorney-general, ii. ; speech of, . tryon, witness against turner, i. , , , . turner, sir edward, i. ; opens the case against hulet, . turner, ely, trial of, i. - ; was to bring money to fry's house, , ; examined by sir t. aleyn, ; acquitted, . ---- james, trial of, i. - ; aleyn's evidence, - ; turner suspected, ; found in possession of money, , ; account of money and jewels by, ; arrest by aleyn, , ; his wife sent for money and jewels, ; wife's account of them, ; committed to newgate, , ; his account of his money to aleyn, ; tryon's account of the burglary, - ; turner's account to hill, , ; as to forging tryon's will, , ; deposits money with fry and ball, , ; account given by, of robbery to cole, ; examined by chamberlain and aleyn, , ; defence of, - ; summing up and verdict, , ; confession by, ; dying speech and execution of, , . ---- john, trial of, i. - ; flies from sir t. aleyn, , , ; carried money to fry's house, , , , , ; acquitted, . ---- mary, trial of, i. - ; sent for jewels and money by turner, , , ; visit to fry's house, , ; produced money and jewels, ; examined by chamberlain, ; acquitted, . turner, stephen, witness against lord warwick, coote's servant, ii. ; coote friendly with warwick, . ---- william, trial of, i. - ; arrest and examination of, ; identified by tryon, ; denial by, ; acquittal and confession of, , . vanden anchor, witness against turner, i. . villiers and the guiana expedition, i. . wade, sir thomas, i. . wait, thomas, and raleigh's trial, i. . walcot, connection with lord shaftesbury and lord howard, ii. , - . walker, sir clement, on omissions in charles i.'s trial, i. _n._ ---- sarah, witness against cowper, his arrival and conduct at mrs. stout's, ii. - ; evidence contradicted, , . wall, witness for cowper, ii. . waller, sir hardress, i. . ward defends lord russell, ii. ; opinion of, in lord warwick's case when lord chief-baron, . warwick and holland, earl of, trial of, ii. - ; preliminaries, - ; opening speech, - ; guests leave locket's, - ; course of quarrel between coote and french, - ; the journey to leicester fields and the bagnio, - ; arrival and proceedings at the bagnio, - ; warwick's defence as to the facts, - ; friendship between warwick and coote, , - ; capacity of french to give evidence, benefit of clergy, - ; verdict, , ; sentence, . watcher, witness against turner, i. . watson, and the 'bye' plot, i. , , , , . weller, daniel, witness against goodere, ship's carpenter, i. - . westmoreland, i. . whichcot, sir jeremy, witness against peters, i. . whiteman, colonel, witness for lord warwick, ii. . williams, thomas, witness against goodere, capture of sir john, ii. - . wilson, sir thomas, i. . windham, wadham, i. . winwood and the guiana expedition, i. . witches, suffolk, the. _see_ cullender, rose; and duny, amy. woodhouse, dr., witness against cowper, ii. . wotton, lord, of morley, i. . wright, sir nathan, prosecutes the earl of warwick when a serjeant, ii. ; speech of, . wroth, sir robert, i. . young, sir edward, opens peters' case, i. . ---- dr. william, witness against peters, i. , , ; peters' reply to, , . ---- witness for cowper, finder of sarah stout's body, ii. - . printed by t. and a. constable, printers to her majesty at the edinburgh university press transcribers' notes page : algernone as in the original page : abermarle as in the original page : beleive corrected to believe after "whether upon this whole matter you do" page : paragraph ending "their faces towards the state;" as in the original page : th as in the original. should perhaps be th. page : fergusson standardised to ferguson, as in the text page : inconsistent spelling of nelthorp(e) as in original page : find- changed to finder in entry for young, witness for cowper footnote : algernon sidney. year corrected from to in "executed on th december " footnote : rumsey. year corrected from to in "executed in ." year corrected from to in "before, in ," footnote : "became a a fellow" corrected to "became a fellow" general : the following have been inconsistently hyphenated in the original: ale(-)house, church(-)yard, cock(-)pit, half(-)penny, lime(-)kilns, no(-)body, over(-)board, sweet(-)heart, three(-)score, twelve(-)month. these have not been standardised. general : no attempt has been made to standardise or modernise spelling. corrections to punctuation have not been individually noted. index : volume numbers omitted in the original have been added for cowper, william; howard, thomas; howard, henry; northampton, lord; suffolk witches transcriber's notes three minor typographical errors were found and corrected, none of which affected the sense of the text. the foreword is in latin. for the reader's convenience it is repeated at the end of the text with a free english translation inserted. * * * * * [illustration: title page with decoration ] de mortuis nil nisi bona: by spicer & pegler illustrated by e. t. reed * * * * * _by the same authors_ by spicer and pegler. book-keeping and accounts. (third edition.) practical auditing. (second edition.) audit programmes. (third edition.) practical book-keeping and commercial knowledge. income tax in relation to accounts. (third edition.) examination note book for accountant students. (second edition) underwriters' accounts. (second edition.) table a: a comparative analysis. (second edition.) income tax problems. key to income tax problems. the motor account book and register. by ernest evan spicer, f.c.a. an outline of the money market. the accounts of an executor. (third edition.) internal check in relation to a manufacturers' business. (second edition.) reserves, annuities and sinking funds. (second edition.) income tax claims and appeals. (second edition.) a summary of the income tax provisions of the finance ( - ) act, . (second edition.) income and super-tax, and its legal evasion. dissolution, amalgamation and reconstruction accounts. divisible profits and dividends. the exportation of british capital. the depreciation of gilt-edged securities. by ernest c. pegler, f.c.a. some notable frauds in accounts. (second edition.) an audit of trust accounts. stock exchange transactions. the principles of auditing. comparative and interim accounts. by ranking, spicer and pegler. executorship law and accounts. (third edition.) partnership law. arbitration and awards. mercantile law. bankruptcy and deeds of arrangement act. . by ranking and spicer. a primer of company law * * * * * de mortuis nil nisi bona being a series of problems in executorship law and accounts by spicer & pegler chartered accountants , watling street, london, e.c. with a foreword in the latin tongue by d. f. de l'hoste ranking, m.a., ll.d. illustrated by e. t. reed price /- net. london: h. foulks lynch & co. , fenchurch street, e.c. * * * * * to all spinster aunts and bachelor uncles who do their duty by their nephews and nieces in matters testamentary this book is affectionately dedicated. * * * * * preface. no one can say that our motives are unworthy, for our object is to instruct. but there are some who may object to our methods, and it is to such that we offer, not an apology, but an explanation. a very large section of the public cling to the belief that law must be as dry as dust, and accounting as tedious as the treadmill. the truth is, it is not the practice of law or of accounting that is uninteresting, but rather is it the theory which is often rendered so by teachers whom providence never ordained to teach. if, therefore, the employment of unorthodox methods helps to interest the student in his subject, and to stimulate him to further effort, any apology would be out of place. ernest evan spicer. ernest c. pegler. , watling street, london, e.c. january, . foreword. by d. f. de l'hoste ranking, m.a., ll.d. de mortuo illo quid dicam? "nilnisi bonum" ut aiunt. sed quid si nil boni fecit? de bonis licet loqui. at si nulla bona reliquit? de eo tacere decet: si neque bonum fecit nec bona acquisivit nil valet. sed si bona reliquit in sermonem hominum semper venit; vitia operta sunt; pecuniam fecit, illa quidem "non olet." quem heredem instituit? extraneis haec omnia livori proxima videntur. te autem si tu aut cognatione aut affinitate propinquus exspectatio tenet. an mea interest? si sic habet, quanti? suave est ex magno tollere acervo; ejus pecunia quid non facere possim? siste, amice; aliquantulum cogita; supersunt multi cognati; fieri potest ut aut cum aliis bona partire debeas, aut exheredatus sis. gerrae! sine dubio testamentum fecit: et cum ratione constat me alicuius rei legatarium esse. nemo enim magis eum fovit; alii omnes cognati asseclae; solus eum amavi. insipiens, inter os et offam multa intervenire possunt. audi de gente fulvia fabellam: de multis mutato nomine narratur. (in scena est coenatio georgii fusci, argentariorum interpretis. fuscus, bene coenatus, alterum cyathum falerni sorbillat. accurrit uxor, commota; in manu litteras resignatas tenet). u. georgi! f. quid tibi nunc est? num quid novi est? u. amita mea maria decessit! f. bene! nunquam postea illud vile sabinum necesse erit obsorbere: magnum est solatium. u. at tu georgi semper id laudasti! f. et tu simul filiaeque semper miratae estis persicam illam detestabilem et psittacum dissonum, et laudibus extulistis: pretium fuit vetulae placere. u. esto: illa vero suavia erant. at hic mihi litterae a cognitore ejus semaureo allatae: dicit se hodie vesperi te conventurum. f. demiror si testamentum fecit! sin minus omnia ad te perveniunt, tu heres ex asse; cognati alii desunt. u. est quidem mariti nepos iste. f. nullus: tu sola heres: si intestata omnia ad te. u. tabulas vere fecit: cognitor scribit se te conventurum quia testamentum ad rem tuam maxime pertinet. f. mihi crede igitur! aliquid magni tibi legavit: haud verisimile illam quidquam juveni albo legasse: nunquam iliam observavit; homo nil est nisi pictor ignotus aut aliquid simile: uxorem quoque duxit quamdam inopem, et eis saepe amita tua subvenire debuit. u. fores pulsantur: advenit cognitor! f. dic famulae ut alteram cyathum ponat. (ingreditur dominus semaureus.) quid agis vir doctissime? mea uxor dixit te venturum; nonne ob testamentum amitae ejus? s. sic res habet, fusce; venio ad te quod hoc res tua maxime refert; et scio te onus suscepturum. f. an sic habet? vetulae illi multa bona provenere ut opinor. s. permulta: super haec te consulendum putavi. hic mecum tabulas attuli ut eas inspicias. f. bene est; dignissima erat; cui semper plurimum tribui. falerni sume cyathum. s. benigne dicis; dimidium: bona venia uxoris tuae est mihi in animo summas testamenti reddere; ad illam quoque pertinet. (testamenta allata resignat.) post nonnulla famulis legata ita instituit: "fratris filiae mariae lego persicam et psittacum quae animalia tantopere admirata est, certa fiducia se illis hospitium praebituram; eidem etiam lego annulum meum gemmatum. nepoti ejusdem mariae viro georgio fusco lego omne quod in hypogaeo superest vinum illud falernum quod semper laudabat." f. (in malam rem.) s. "quod ad ceteras possessiones georgius fuscus heres esto ex asse: (subridet fuscus et uxori in aurem susurrat "ita ut dixi.") s. (conversa tabula) "et rogo eum ut cum primum potuerit haereditatem adire, omnibus et fundis et mobilibus venditis, pecunias in cautionibus publica auctoritate factis collocet et fructus reddat nepoti mariti mei jacobo albo et uxori suae in aetatem aut utri eorum vita superarit: eis mortuis ut inter liberos eorum caput dividat: aut liberis sine prole defunctis caput reddat ad sodalitatem anthropophagis africanis informandis et nutriendis institutam: praemio sint fiduciario viginti in annum librae." f. anus odiosa et malefica! at enitar ut testamentum rescindatur; inofficiosi testamenti querelam instituam! delira fuit! s. immo mentis omnino compos fuit, improbe: sic summa fide clamabo et testabor. verba tua pro tempore et re indecora. tui piget me: evado. f. maria! u. georgi! uterque. exsecrabilis illa! (aulaeum tollitur.) [illustration: charles augustus algernon de jones "... he gave five thousand pounds to london's home for lost and straying hounds."] problem no. . within st. dunstan's churchyard rest the bones of charles augustus algernon de jones, who left, besides a widow, tall and fair, four infant daughters all with ginger hair. the worldly goods of which he died possessed were valued, net, twelve thousand of the best. he died intestate, left no real estate, broke his neck hunting at a five-barred gate. two years before he left this vale of tears, he justified his wife's most anxious fears, he spent ten thousand on a rope of pearls, a gift to one of daly's chorus girls. this was a falling from the narrow course which lasted but a fortnight; then remorse o'ercame him, and he gave five thousand pounds to london's home for lost and straying hounds. this good deed mollified his jealous wife, and two years later, when he quitted life, the widow buried anger with the bones of charles augustus algernon de jones. * * * * * and now as everyone knows this tragedy comes to a close, with fallings and failings and funeral wailings 'mid sighings and sobbings and woes. do not think that this story is lax or of improbability smacks; i tell you it's true, and i'm waiting for you to say what did the revenue tax. problem no. . and when joseph was dead his son benjamin took unto himself a wife and they had issue, two boys and one girl. now the elder of these two sons was comely to gaze upon and when he was yet two years from man's estate his father said unto him, "my son, your father's brother is old and nearing death. take heed, therefore, lest his wealth be scattered amongst the gentiles." and the son answered, "fear not, my father, from henceforth i will be unto my father's brother as a son." but after seven days had passed away the uncle died and all his flocks and herds were left to his brother benjamin's children. and on the seventh day after the brother's death, the woman, whom benjamin had taken to wife, gave birth to twin children, and after seven more days had passed, the male child sickened and died. and benjamin wept for his son and looked not upon the child that lived, and refused all meat, so that he weakened, and after seven more days he was buried in the tomb of his fathers (near shepherd's bush). * * * * * n.b.--there were fortunately no further deaths in benjamin's family, and the uncle's legacy to his "brother's children," which was valued for probate at £ , , was duly divided between them. how much did each receive? problem no. . sir hazel knut, bart., died, and the whole of his estate, after the payment of estate duty, debts, and all expenses, amounted to exactly £ , . he bequeathed the following legacies, all free of duty except the settled property. _lady knut_, his widow, £ , . lady knut also had the use of a governess cart, together with a shetland pony, for life, with remainder over to the toddington cottage hospital. these were valued for probate at £ , and the value of the life interest was computed at £ . _george filbert_ (aged ), a son of lady knut by a former husband, £ . _selina knut_, daughter (aged ), £ , . _george lightfoot_, son-in-law, who married sir hazel's charming daughter rose, £ , . rose predeceased sir hazel by years, but the twins survived. to each of these children sir hazel left one thousand guineas. _mrs. gubbins_, sir hazel's aged mother, £ , . _mr. gubbins_, stepfather to sir hazel, the racehorse "fleetfoot," aged , by footrest out of fleet rabbit, valued at £ s. d. _rev. stirling knut_, nephew, £ . and £ each to the following: _cutforth crawley_, lady knut's sister's son. _lady augusta ramsbotham_ (sister-in-law, lady knut's eldest sister). _dorothy smith_, who married robert, sir hazel's eldest son, months after the funeral. the residue of the estate was left absolutely to robert. * * * * * show how much sir robert knut inherited. [illustration: the racehorse, "fleetfoot." by "footrest" out of "fleet rabbit." aged .] problem no. . mr. mordecai moribund was a pessimist during life and died a violent death. his facial appearance was much disfigured by a sad squint, and this affliction to his eyes contributed in no small degree to the tragedy which at once deprived mrs. moribund of a husband and a son. the son, a bright youth of twenty summers, had been sent down from oxford university by the authorities rather as a warning to others than for any great offence which he had committed. nevertheless, the disgrace was keenly felt by his mother, and it was for this reason that mr. moribund decided to take him for a trip to india, until time had healed the wound. arrived in india, mr. moribund promised his son, morton, to arrange for a tiger shooting expedition. this fatal promise caused all the trouble, for mr. moribund, owing to his visual defects, thought he observed a tiger approaching from the west and forthwith discharged his rifle. the bullet missed the tiger and passed through the head of the unfortunate morton, who was thereby killed on the spot. mr. moribund, horrified by the accident, moved his position and slid from the back of the elephant right into the jaws of the infuriated animal. assistance was rendered immediately, and mr. moribund was rescued from his unfortunate position, but not before he had sustained injuries from which he succumbed four days subsequently. mr. moribund, by his will, left everything of which he was possessed to his widow absolutely. this property, after deducting debts, amounted to £ , , but an examination of his affairs disclosed the fact that two years previously he had conveyed as an absolute gift to his son, morton, the sum of £ , . this money had been invested by morton in bearer bonds of the royal japanese steamship company at an average price of £ %, but on the date of morton's death these bonds stood at £ %. morton, by will, had left his entire fortune to a miss flossie teazle, an actress whom he had met at oxford. [illustration: the death of mr. mordecai moribund.] show what duties were payable to the state as a direct consequence of the tragedy. * * * * * note.--the following epitaph, shamelessly copied from one in malmesbury abbey, was inscribed on mr. moribund's tomb:-- in bloom of life he's snatched from hence, he had not room to make defence; for tyger fierce took life away, and here he lies in bed of clay until the resurrection day. problem no. . it is a strange circumstance that little men with red hair usually have large families. at any rate septimus hawkins had red hair and twelve children, of whom eleven were living, but strangest of all he died intestate worth £ , subject to the payment of estate duty, and of which the real property was valued at £ , . [illustration: "mrs. hawkins had been very beautiful in her younger days."] mrs. hawkins had been very beautiful in her younger days, but time and children had robbed her of her rosy cheeks; and realising that widow's weeds did not become her, she withdrew shortly after the funeral to the seclusion of a country life, where she spent her time ministering to the sick, and looking after her late daughter pearl's two small children. the names of her children in chronological order were as follows:-- . p earl. died . e dward. . r ebecca. . s elina. . e mma. . v era. . e velyn. . r ichard. . a melia. . n athaniel. . c hlotilde. . e rmyntrude. how should the property of the late septimus hawkins be distributed, and how much did the respective beneficiaries receive? problem no. . very few men can state with any degree of accuracy how long they will live, but nathaniel hibbert told his wife he would die at o'clock in the morning of tuesday, the nd april, , and he did die at that very time on that very day. he was standing on some scaffolding when a platform gave way under his very feet, and he broke his spinal cord. in other words he was hanged. his solicitor urged him to make a will and the prison chaplain added his earnest entreaties, but mr. hibbert turned a deaf ear to all such suggestions. even the sight of his wife and only child did not affect his determination, and he died intestate. * * * * * what happened to the £ , of which he died possessed? [illustration: "mr. chicory loved his wife almost as much as mrs. chicory loved her husband."] problem no. . mr. chicory loved his wife almost as much as mrs. chicory loved her husband. they had lived together for nearly forty years, and every saturday morning throughout that long time mr. chicory had faithfully handed over to his wife his entire earnings, which were not much, and deducted only s. per week, which served as pocket money for mr. chicory, and enabled him to provide coals during the winter months, collection money at church, oil for the lamps, and sundry presents from time to time to his children, to say nothing of the lame crossing sweeper. each week a small sum was deposited in the post office savings bank, and when mr. chicory died, not only had he to the credit of this account a balance of £ s. d., but his cottage, which was valued at £ , was his own freehold property. he had made a will and paid the solicitor s. d. for drawing it up, and nobody could have read what he said about his old wife, to whom he left everything, without feeling a lump in the throat. on the day of his funeral not one blind was undrawn in all the cottages round about, and mr. michaelmas, the carriage builder, sent a landau specially for mrs. chicory. at least one hundred people went to the church, where the good old vicar read the service, and the lame crossing sweeper painted his broom-handle black. mrs. chicory, some weeks later, paid the solicitor another s. d., as a fee, and asked him to do the rest. * * * * * what did he do? problem no. . men who are mean during life and who would grudge a present of s. to the postman at christmas, or who would spend a whole day in another man's motor car and fail to tip the chauffeur at the end of the journey, often prove very generous with their money when they die and can no longer enjoy the satisfaction of possession, which during lifetime they cherished so dearly. such creatures usually bequeath their property to charitable institutions at the expense of deserving relatives, who have, at any rate, in equity, a claim to at least some small share thereof. the law of italy corrects this injustice, and no man can will away at death the whole of his property to strangers, if he leaves a widow or relatives living of a nearer kinship than a first cousin. now vincentio dorando was an italian subject, whose nearest living relative was a first cousin once removed. he had been educated at oxford and had spent the greater portion of his life in england, but at the time of his death he was domiciled in france. he left no property of any sort in italy or france, and no duties were found to be payable in either of these countries. he had property in england, however, which consisted of £ , japanese - / per cent. bonds at , a freehold house valued at £ , , and some furniture and pictures which were stored at messrs. hudson's repository, and which were valued for probate at £ . the only debt due at death was a tailor's bill for £ . he had made a perfectly valid will in england, by which he bequeathed all his property, with the exception of his real estate, to his old oxford friend, mr. james duncan, for life, with remainder over to mr. duncan's eldest son. he left the freehold house to another oxford friend, mr. wallstone. * * * * * show what duties were payable to the inland revenue authorities upon the death of mr. vincentio dorando. [illustration: the jollybuck twins--as they appeared, no doubt, to mrs. jollybuck and the nurse--prospective world-geniuses.] problem no. . the nurse described them as the most wonderful twins she had ever seen; but then monthly nurses always speak in this way! the mother said that she had never known children exhibit such intelligence at so early an age; but then mothers always think in that way, especially of their first! the father wanted to drown the yelling little brats, and had turned on both taps in the bathroom; but then fathers always want to do something rash! altogether it was a very merry little family, and when the twins were three months old and had been duly christened and vaccinated, mr. jollybuck called on his solicitor and altered his will so as to provide for the family which had been so anxiously hoped for and so long in coming. but alas for mrs. jollybuck, for whom widow's weeds were to be so soon necessary, and a plague on all false chemists who fail to label their blue bottles "with care." mr. jollybuck swallowed carbolic acid instead of ipecacuanha wine, and after the payment of estate duty, debts and all expenses, except legacy duty, his estate consisted of £ , cash on deposit at the london, city and midland bank, £ , india - / % stock at , and furniture valued at £ . by his will he left: (a) india stock and the furniture to his widow, free of duty. (b) £ , to his widow. (c) £ , and the residue of his estate to his only son. (d) £ , to his brother. (e) £ to his only daughter. * * * * * draw up a statement showing the amount each beneficiary under mr. jollybuck's will is entitled to receive. problem no. . family trees are almost as interesting to study as bradshaw, and, at any rate in this case, quite as instructive. in fact, without a tree it is almost impossible to remember who mrs. gubbins really was. the following, which eliminates all irrelevant matters, gives the descendants of george gubbins, the founder of the family:-- genealogical tree of the gubbins family george gubbins _____________________|___________________ | | | | george john charles oscar | | | | john george oscar charles | | | ____________|_____________ | | | | | | | george john charles rose violet daisy poppy now john gubbins, the grandson of george gubbins, founder of the gubbins family, married elizabeth greatheart, on christmas-day, and on the anniversary of their wedding day little george gubbins first saw the light. but little george knew not his father, for john gubbins died when george was but two months old. in his will john gubbins appointed his cousin, george gubbins, to be his executor, and thus it was that george gubbins was brought into close touch with the widow gubbins. friendship ripened into love and resulted in mrs. john gubbins becoming mrs. george gubbins. in due course mrs. george gubbins presented her husband with a little boy, who was christened john after his first cousin once removed. little john grew in grace and played very prettily with little george gubbins, who was his stepbrother and second cousin rolled into one, and altogether it was a very happy little party, until one day little john's father, george gubbins, was knocked down by a steam roller just in front of his own house, and was rolled into his own gravel drive. now the steam roller belonged to a company, of which oscar gubbins, son of charles gubbins and grandson of george gubbins the founder of the family, was a director. hearing of the accident he hastened to comfort the widow in her affliction, and succeeded so well that after a decent interval had elapsed mrs. george gubbins became mrs. oscar gubbins. a child was born two years later, three months prior to the death of oscar gubbins, the father. the little boy was christened charles, and after the funeral of oscar gubbins, mrs. gubbins took her three little boys, george, john and charles, to ventnor, in the isle of wight, for a change of air. it was in the lounge of the sea view hotel at ventnor that mrs. gubbins met mr. charles gubbins, first cousin to her three late husbands. now mr. gubbins had ofttimes heard of the much-weeded widow, but when he saw her for the first time with the naked eye, he realised what happy men john, george and oscar gubbins must have been. [illustration: "when mr. charles gubbins saw her for the first time with the naked eye, he realised what happy men john, george and oscar gubbins must have been."] and when mrs. gubbins first saw mr. charles gubbins she thought how empty widowhood really was, and what fine men were the grandsons of george gubbins, founder of the gubbins family. such feelings were not to be denied, and after three months of courtship mr. charles gubbins and mrs. oscar gubbins were declared man and wife by the rev. stephen collins. for years mr. and mrs. charles gubbins lived together as happily as a married couple could, and four beautiful daughters, rose, violet, daisy and poppy were born to them. and then mrs. gubbins died intestate leaving personal property valued for probate at £ , , and real property valued at £ , . * * * * * how was this divided? problem no. . some people say there is no romance in business and that a brass plate never brings clients. don't you believe that for one moment. why, jones owed all his misfortunes in life to a brass plate and a motor 'bus! it happened as follows:-- mrs. james wardle's husband died on the th april, . he was always called mrs. wardle's husband, and he very properly left her his entire fortune, which, at his death, consisted of the following property:-- freehold property valued at £ , , subject to a mortgage of £ , at % per annum. the interest was paid up to the st march, . £ , local loans % stock quoted at - . £ , - / % annuities quoted at - . £ , caledonian railway consolidated % stock quoted at - cum. div. £ % bradford corporation stock quoted at - / - - / cum. div. life policies and bonuses £ , . household furniture £ . £ , loan at % per annum. the interest had been received up to st december, . sundry debts due to testator, £ . sundry debts due by testator, £ . funeral expenses, £ . mr. wardle had for many years left his affairs entirely in the hands of his solicitor, but mrs. wardle, who was sole executrix, thought--and very properly too--that the combination of a solicitor and a professional accountant was to be preferred. she therefore journeyed to the city with the intention of consulting her stockbroker on the matter, but by a curious providential dispensation, the motor omnibus broke down just opposite jones' office, and his brass plate attracted the sweet lady's attention! he prepared the estate duty account, the affidavit being delivered on the st july, , and he is now mrs. james wardle's second husband. * * * * * do as jones did, but ignore income tax, and beware of widows. [illustration: "julius jones was a poet."] problem no. . julius jones was a poet, and although he died prematurely on the th june, , his name will be remembered by posterity as the author of the beautiful hymn, of which the first line runs "farewell, old buck, we part to meet again!" he left the following estate:-- cash at bank £ , household furniture life policies , securities valued at death at , freehold property , ------- £ , liabilities at death were £ , and funeral expenses amounted to £ . legal expenses were also paid, amounting to £ . the securities and the furniture realised £ , and £ respectively. a legacy of £ was left to his nephew (free of duty). the eldest son of the testator (patrick) was given the option by the will to take over the freehold property at £ , , which he elected to do. the residue of the estate was to be divided equally between the three children of the testator:-- patrick, peter, paul, but he directed that the amounts of £ , , £ , and £ , advanced to them respectively on the st june, , were to be brought into hotchpot. * * * * * prepare an account showing the division of the residue, taking into account the duties payable, but ignoring interest on advances. [illustration: "duly witnessed by his aged housekeeper, mrs. uskins, and the gardener."] problem no. . it would be indelicate to indicate the exact portion of mr. hobson's anatomy that was so fiercely attacked by the mad dog, but it is sufficient to say that the bite was the indirect cause of his death. he anticipated the end, for shortly before he passed away he called in his solicitor, mr. crawley, and made a fresh will, which was duly witnessed by his aged housekeeper, mrs. uskins, and the gardener. the estate, which consisted entirely of personal property, comprised:-- ( ) share in the firm of hobson bros., £ , . ( ) bonds to bearer valued at £ , . ( ) cash at bank £ . the debts due by deceased, including a loan from the bank secured on the bonds to bearer, amounted to £ , , and the funeral expenses came to £ . the property was bequeathed as follows:-- mrs. hobson (widow), £ , . george hobson (son, aged ), £ , . selina hobson (daughter, aged ), £ , . wickham crawley (solicitor), £ . maria hawkins (niece, aged ), £ , . george hobson, junr. (grandson, aged ), £ , . mrs. uskins (housekeeper), £ . mrs. rumbolt (deceased brother's wife), £ . mrs. hobson, senr. (deceased's mother), £ , , and the residue to the widow absolutely. prepare a distribution account. [illustration: "london and north western consolidated stock."] problem no. . solomon solfar was a solemn man, and his will was proved in solemn form. he died quietly in his bed on the st april, , leaving a widow, two sons (matthew and mark), and one daughter (mary). on the st april, , after all debts, testamentary and other expenses had been paid, the estate consisted as follows:-- £ , - / % annuities at - / . £ , swansea corporation % stock at (interest payable st january and st july). £ , london and north western consolidated % stock at (dividends payable th february and th august). , birmingham small arms cum. % preference shares of £ each at £ - / (dividends payable st march and st september). £ , british westinghouse % debenture stock at (interest payable st january and st july). mr. solfar made during his lifetime advances of £ to each of his sons, which at his death were brought into hotchpot, and interest charged thereon at % per annum. he directed his estate to be left in trust, the income to be applied, first in payment of £ a quarter to mrs. solfar, and the balance to be distributed half-yearly in equal shares to matthew, mark and mary. write up the books of the trust, ignoring income tax, for the year ending st march, , the balance of income in hand on st april, (after making all necessary payments to the beneficiaries) being £ s. d. [illustration: mr. hopkins' bodyguard, the pride of bristol.] problem no. . the life of hezekiah hopkins had been a warning rather than an example to others, and the administration of his affairs at death caused his executors and trustees to use words which are only permissible amongst gentlemen when the ladies have withdrawn from the dinner table. mr. hopkins died on the th june, . his will had been proved, estate duty and legacy duty had been paid, but the trust could not be closed owing to the fact that the residuary estate had been left to nathaniel hopkins, a nephew, for life with remainder over to the said nathaniel's eldest god-son walter blackside, subject to an annuity of £ which the testator had covenanted to pay to the "pride of bristol," a prize fighter, who had acted as bodyguard to mr. hopkins during that gentleman's earthly peregrinations. the residuary estate consisted of the following property:-- ( ) leasehold property having years to run, producing £ per annum. the property, which was valued for probate at £ , , and which was subject to a ground rent of £ per annum, was sold on on the th june, , for £ , and the proceeds invested on the following day in consols at , including brokerage, &c. ( ) deceased's share in the firm of hezekiah hopkins & co. this amounted to £ , upon the death of mr. hopkins, and, according to the partnership deed, was to be paid out by instalments of £ , a year including interest at % on the unpaid balances. the first instalment was to be paid on the first anniversary of deceased's death. ( ) a reversionary interest in the estate of his uncle mr. john oppit, the life interest of which was being enjoyed by mrs. oppit. this reversionary interest was valued, at the death of mr. hopkins for probate purposes, at £ , and was retained until the th june, , when it fell into possession. it then consisted of £ , india - / % at . ( ) £ , invested in a loan redeemable on the th june, , with interest at % per annum payable half-yearly on the th december and the th june in each year. the trustees decided on their own responsibility to retain this investment, which was redeemed on the due date and the interest paid in the meanwhile. ( ) £ , india % stock at , purchased by deceased on th june, . upon the th june in each year the balance of corpus realised was to be placed on deposit with the hong kong and shanghai bank at %, less any fraction of £ which was to be retained on current account at the union of london and smith's bank. mr. nathaniel hopkins died on the th june, . * * * * * write up the books showing the position of affairs when mr. blackside came into the property, ignoring income tax. problem no. . mrs. wiggins was the life tenant and mr. gilbert gunter was the remainderman of the property left by the late ebenezer wiggins. mr. gunter had begun to despair of ever enjoying the fruits of mr. wiggins' generous intentions, when, fortunately for him, on the th march, , mrs. wiggins got a fish bone lodged in her gullet and died two hours later. the accounts had been prepared regularly on the st september each year, the anniversary of mr. wiggins' death, and the following is the balance sheet, dated st september, :-- ebenezer wiggins decd. dr. balance sheet, st september, . cr. £ s. d. | £ s. d. to estate account , |by investments: " income " | india per cent.: | £ , at , | chili per cent.: | £ , at , | london united | tramways: | £ , per cent. | debentures at , | west african | trading co., ltd.: | , shares £ | each fully paid , |" freehold house , |" furniture and | effects |" cash at bank ------------ | ----------- £ , | £ , mr. gunter requires accounts to be prepared, showing the position of affairs at the th july, , and volunteers the following information:-- ( ) the investments remain unaltered, with the exception of the india % stock, which was sold on the th january, , and the proceeds, viz., £ , , were invested in a mortgage at % interest payable half-yearly on the th july and th january each year. ( ) the coupons on the chili % bonds are payable on the st april and st october, and the interest on the london united tramway debenture stock on the st january and st july in each year. ( ) on rd july, , a final dividend at the rate of % per annum, free of tax, was declared by the west african trading company, ltd., and paid on the th july, , making, with the interim dividend paid on the th january, , % for the year ended th june, , free of tax. ( ) the freehold house was let on a full repairing lease at an annual rental of £ , the assessment was also £ . the rent is payable quarterly on the usual quarter days. ( ) the trustees had paid to the late mrs. wiggins £ on account of income on the th day of each month, including march, . ( ) the professional accountant's fee for writing up the books from the nd september, , to th july, , and making the necessary adjustments was agreed at guineas, and this fee was to be apportioned between mr. gunter and the estate of mrs. wiggins deceased equally. * * * * * write up the accounts for the period, making the necessary adjustments, and prepare balance sheet dated th july, , showing the amount due. problem no. . mr. montagu summers had a conscientious objection to the income tax, and a positive loathing of the super-tax, and the trouble lay in the fact that he had amassed a considerable fortune in the city of london. something had to be done, however, to relieve mr. summers of a portion of this scandalous taxation, and so, converting as much of his property into cash as he could spare, he invested the same in various ways in other countries. he bought russian - / % bonds in holland of the nominal value of , guilders, and a freehold farm near amsterdam, which cost in english money about £ , . he bought freehold land in canada, for which he paid £ , , and deposited with the calgary investment & security trust $ , at %. he lent on mortgage in new zealand £ , , and he had a balance of fcs. , to his credit at the swiss bankverein, berne. [illustration: "mr. montagu summers had a conscientious objection to the income tax, and a positive loathing of the super-tax."] on the th november, , mr. summers died of blood poisoning, the result of cutting a corn with a blunt razor. his property in england consisted of his furniture and effects valued at £ , , cash balance at the london, city & midland bank, queen victoria street, £ , and his interest as a partner in the firm of montagu summers & nephew, which was agreed at £ , . the russian bonds were sold on the amsterdam exchange for , guilders, the farm was valued at , guilders, and the land in canada was estimated for duty purposes at $ , . assuming the death duties in holland to be %, in switzerland nil, and the rates in the colonies to be similar to what they are in this country, show what estate duty would be payable in england. the rates of exchange can be taken as follows:-- holland-- guilders = £ switzerland-- francs = £ canada-- dollars = £ all accruing income to be ignored. problem no. . mr. harold wimpole died in his opera hat, and was buried in willesden cemetery. his will had been proved, estate duty had been paid, and the widow, who was the sole beneficiary, had found considerable consolation in the £ , which had come to her. this £ , represented the gross estate, less debts due by mr. wimpole at his death £ , , funeral expenses £ s. d. which were regarded by all, including the inland revenue authorities, as most reasonable, estate duty, interest on estate duty £ s. d., testamentary expenses £ s. d. and legacy duty. [illustration: "the curate looked at the widow, and the widow looked at the curate."] eight months had passed away and the rules of society permitted mrs. wimpole to smile occasionally; the curate, who took an extraordinary interest in mrs. wimpole's salvation and the carving of an ancient japanese cabinet, had called for tea. the reverend gentleman, with a sandwich in his hand, was recording the incidents connected with the birth of buddha, when his fingers happened to touch the spring of a secret drawer in the aforementioned cabinet. the curate looked at the widow, and the widow looked at the curate, and there they stood together, hand in hand, like two young children, in silent amazement, for the secret drawer in the japanese cabinet disclosed - / % foreign government bonds to bearer, of the nominal value of £ each, and several memoranda of stock exchange dealings between mr. wimpole and his broker. the coupons were payable on the th march, and the th september in each year, and the last coupon which had been cut off was dated th september, , exactly months previous to the death of mr. wimpole. mrs. wimpole consulted the reverend oscar veritas long and earnestly over the matter, and the reverend oscar admitted that it was a case necessitating very great firmness of character and honesty of purpose. ultimately, however, he arrived at the conclusion that mrs. wimpole would be unworthy to bear his name in the future, unless she did her duty in the present instance. what was the pecuniary value of the good man's conclusions to the inland revenue in the matter of estate and legacy duty, bearing in mind the fact that the bonds stood at on the day of mr. wimpole's death, and , ten months later when mrs. wimpole's solicitor finally settled the matter? * * * * * note.--the honeymoon was spent in japan. problem no. . sir robert rushforth, j.p., was a big man with a big heart and a wooden leg. he had inherited a fortune, gone bankrupt, and married a widow, and if anyone had told him he wasn't a sportsman he would have called that individual a liar, and opened a second bottle. he died on the th june, leaving all his property to his widow, with the exception of his wooden leg, which he directed to be handed over to the royal hospital for incurables, at putney. such was the man, and the contents of his will so exactly reflected the character of her husband that lady rushforth at once had recourse to the smelling salts on reading the document. he directed the debts, from which he had obtained a legal discharge in bankruptcy, to be paid in full, he forgave all his debtors, and instructed his widow, whom he had appointed sole executrix and residuary legatee, to meet in full all his gaming debts. he further directed that a certain debt, in respect of which he had pleaded in his younger days the statutes of limitation, should be paid in full. the name of this latter creditor was gunter, and the debt, amounting to £ , was in respect of repairs to certain pig-sties. the discharge from bankruptcy had been obtained by sir robert eight years previous to his death. his liabilities had amounted to £ , , and he had paid s. d. in the £. he owed his bookmaker, mr. hollins, of houndsditch, £ . he had lent his vicar, the rev. aaron cranium, £ , his sister blanche £ , and his intimate but impecunious friend, mr. algernon o'gizzard, £ . this latter loan was rendered necessary by reason of the fact that mr. o'gizzard had stood bail for a friend who had got into trouble with the police, and who failed to put in an appearance before the magistrates on the day appointed. now, sir robert happened to be on the bench that morning, and ordered the bail to be estreated before he realised with whom he was dealing. apart from the above property sir robert left personal estate valued at £ , . there was no real property. show what estate duty and legacy duty were payable upon sir robert's death. * * * * * note.--the wooden leg was returned by the secretary of the royal hospital for incurables at putney, and being found to be of no intrinsic value was eventually deposited in the family mausoleum at norwood. problem no. . mr. james hotchkiss died in the autumn of age on the morning of his rd birthday. during his protracted life he had always surrounded himself with every comfort, and was reputed to be an exceedingly rich man. no wonder then that his death should occasion an unparalleled outburst of grief and hatbands on the part of his weeping relatives. after the funeral, the chief mourners met in the library and the family solicitor, with a glass of wine within easy reach, read out the last will and testament of james hotchkiss deceased. this interesting document brought a ray of comfort to bleeding hearts, for several substantial legacies were mentioned, all free of duty, and two at least of the prospective legatees were observed to make rapid calculations on the left shirt cuff. [illustration: "to rachel and joyce proudfoot (my sister's little girls, aged and respectively), £ , each." joyce: "think of it, rachel!! ten thousand pounds!!! why the young fellows will simply chase us!!!"] to sophia hotchkiss ("my own dear wife") the deceased left his horses, carriages, motor car, household furniture, pictures, including the landscape by earp, linen, plate, glass, &c., absolutely. to george proudfoot ("my dear sister's only son") the deceased left his hornèd cattle, i.e., cows, and £ , . to rachel and joyce proudfoot ("my sister's little girls"), the deceased bequeathed £ , each. the misses proudfeet were aged and respectively. to richard, william and algernon hotchkiss ("my never-to-be-forgotten brother's sons") the deceased left £ , each, and to john willett ("my faithful valet"), £ , . the residue of the estate was bequeathed absolutely to the widow. the executors lost no time in having the property valued and the debts due by the deceased at his death, ascertained, and their efforts disclosed "a very lamentable state of affairs," at least, such was the opinion expressed by the reverend stephen collins who had called to comfort the widow in her affliction. the horses, carriages, motor car, &c., including the landscape by earp, were valued at £ , ; the hornèd cattle, i.e., the cows, were put down at £ , and the rest of the property at £ , s d. the debts due by the deceased amounted to £ , s. d., and the funeral expenses to £ s. d. these latter were considered unreasonable by the inland revenue authorities, and in spite of several very eloquent appeals addressed to them by the executors, including a touching letter from the reverend stephen collins dealing with the blameless life of the deceased, the amount allowed was fixed at £ s. d. the testamentary expenses, exclusive of estate duty, amounted to £ s. d. * * * * * what amount was eventually received by each legatee? [illustration: "at the age of he made the acquaintance of miss harriett hopkins. in the following spring he had successfully reached the 'walking-out' stage."] problem no. . mr. and mrs. turvey were justly proud of their son "'erbert." he was their only child, and always wore a frock coat, brown boots and white spats on sunday. in fact, as everyone said, he gave a tone to bethnal green. but the ways of providence are strange, and it is futile to seek for explanations where none are vouchsafed. it is enough to say that mr. herbert's anatomy came into violent contact with a brewer's dray one thursday afternoon, and that a promising young life was cut short at the early age of . his life story has yet to be written, and it is but the barest outline that can be here recorded. at the age of he made the acquaintance of miss harriett hopkins. in the following spring he had successfully reached the "walking out" stage. he was formally engaged at the age of and at he was married. six weeks before he died he made two very remunerative investments. he borrowed from his employers--without worrying them about so small a matter--the sum of £ , which he converted into £ by successfully backing "hump back" at to for the "cesarewitch." he also insured his life for £ . having satisfactorily adjusted the small matter of the loan without in any way arousing his employers' suspicions, he joined a burial club, made a will, and died ten days later. by his will he appointed his widow sole executrix, and divided his estate as to one-fourth part to his father oliver turvey, as to one-sixth part to a former landlady mrs. korphdrop, and the residue to his widow. the estate consisted of the following:-- cash £ . insurance policy, £ . burial club money £ . household furniture and effects £ . the funeral expenses amounted to £ . mr. herbert turvey was buried on the third thursday after guy fawkes' day, and on the following tuesday fortnight the widow gave birth to a son. both mother and child progressed amazingly and everybody called to visit harriett, but chiefly to satisfy their curiosity as to the amount which she inherited. * * * * * don't keep them waiting. problem no. . mrs. george dumpkins was very vexed that any estate duty at all should be payable, and when she was told that a corrective affidavit would have to be presented she threatened to change her solicitors. as she very properly said she had sufficient troubles already without having to pay for more, and the chancellor of the exchequer, whoever he was, ought to be ashamed of himself for taxing widows so scandalously. she entirely disagreed with the opinion of her solicitor as to the necessity of presenting this corrective affidavit, and insisted upon having counsel's opinion on the matter. the following facts were therefore submitted to the learned gentleman:-- mr. dumpkins' estate had been proved for probate purposes at £ , , but during the year after death the following assets were realised and liabilities settled, viz.:-- £ , - / % india stock valued for probate at - / , realised - / . share in ship valued at £ , , realised £ , . sundry liabilities estimated for probate at £ , , were subsequently found to be £ , . (this included £ cost of bringing deceased's body from abroad.) stock-in-trade valued at £ , , realised £ , . £ , mortgage debentures valued at £ , were sold at par. the opinion of counsel was received in due course, and the solicitor smiled. * * * * * by what amount was the estate duty increased or decreased? ignore any adjustment in respect of interest on estate duty. problem no. mr. william wiggins made all his money out of pickles, and when he died his body was embalmed. to use the widow's words, "'e 'opped it" on the th june, . he left his fortune to mrs. wiggins, his nephew herbert huggins (commonly known as 'erb 'uggins), and his cousin joe gubbins, in equal portions. the will was duly proved, estate duty at % was paid, and the interest on the estate duty amounting to £ s. d. was paid on the th november, . * * * * * what was the value of the net legacy received by each beneficiary? there was no real estate. [illustration: "for nearly years he had been a judge of the probate division."] problem no. . mr. justice oats died in harness. he worked like a horse throughout his long career on the bench, and was universally regarded as a thoroughbred sportsman. for nearly years he had been a judge of the probate division of the high court of justice, and like many others in a similar position, died intestate. not that this was the intention of the learned judge, for he had prepared a will on the back of an envelope, but forgetting that even he was subject to the laws of the land, had entirely overlooked the necessity for signing it. he died, therefore, intestate. his net estate, after the payment of the estate duty on the personal property, amounted to £ , , of which the real property was valued at £ , . for many years the judge had been a widower, and his only child had died in infancy. his youngest brother, alfred, was living, however, and he had a nephew, the son of his deceased brother charles. the judge had, in addition, three first cousins, one of whom was a lady who had thrice refused offers of marriage, the acceptance of any one of which would have made her lady oats. she was, however, a quakeress, and her enemies hinted that she refused the judge lest the combination of the name of her religious faith and her marriage name should bring upon her the nickname of "lady porridge." * * * * * how was the judge's property divided? problem no. . the following letter was received by the rev. stephen collins on the nd march, :-- , eaton avenue, w. st march, . my dear mr. collins, as an old and much honoured friend of my late husband may i implore you to be with us at breakfast on tuesday, the st april, at a.m.? my son montgomery comes of age on that day and i feel that it would be a particularly appropriate occasion for his vicar to say a few words on the seriousness of life, and the responsibilities of riches. perhaps you do not know that my husband left everything to me except £ , india - / % stock which he bequeathed (in my opinion misguidedly) to our two boys, montgomery and algernon, in equal shares. at the date of the colonel's death, six years ago, these were valued at , but now, alas, are worth no more than . the income up to the th january last has been regularly handed over to the boys in accordance with their father's wishes, but on the st april, £ , of the stock will have to be sold and handed over to monty. mr. crawley, my solicitor, has promised to be present, and i have sent invitations to my stockbroker, professional accountant, and the bank manager. do come, dear mr. collins, and believe me to remain, yours very sincerely, augusta mawstone. note.--the breakfast was a great success. everybody turned up and the rev. stephen collins spoke for minutes. the £ , stock was sold at net, and the necessary entries were made in the books of the trust, showing the settlement of montgomery's interest in the estate. * * * * * what was it? [illustration: "the rev. stephen collins spoke for minutes."] problem no. . sir john hopper, bart., died on the day set apart for the feast of st. valentine. he had been a widower for some years, and the age of his only daughter was . the family consisted of four sons and one daughter, whose names in order of age were:-- john long, george rhode, oscar truclod, charles grarze, rose marie. sir john died intestate, possessed of the following estate:-- net residue of personalty, £ , . real property: freehold estate miles outside canterbury, kent, £ , . delightful situation, reception rooms, bed and dressing rooms, bathrooms, modern kitchen apartments, including servants' hall, usual offices, good stabling and acres of garden. caretaker within. freehold estate, mile outside guildford, surrey, £ , . freehold estate in the city of nottingham, £ , . * * * * * show how the estate of sir john hopper will be divided. problem no. . colonel filbert, stepson to the late sir hazel knut, paid a brief visit to the brazils, and died on the voyage home on the st january, . he left a considerable estate, and bequeathed many useful legacies, all free of duty, to deserving relations and friends. one of the provisions in his will was to the effect that a sum of £ , should be placed on deposit at the bank to be paid over by instalments at regular intervals to his two executors, john bunting and nathaniel whittel, and was to be regarded by them as a salary for their services. each was to receive a starting salary at the rate of £ per annum, but whereas john bunting's salary was to be increased by £ per annum, nathaniel whittel's salary was to be increased by £ half-yearly. as soon as the £ , was exhausted the salaries were to cease, and in the meanwhile the interest on the deposit was to be paid over to the general estate. the salaries were to be drawn half-yearly, the first to be payable exactly six months from the date of colonel filbert's death. * * * * * write up a cash account, showing how the legacy of £ , was divided between the executors. [illustration: "miss tulip's heart was forthwith pierced."] problem no. . every sportsman will admit that it is immoral to bet upon a certainty, and most business men will endorse the maxim that only fools speculate without inside information. now mr. hunter never gambled, but he was open, like most other men, to a sound speculation, and when he learned in his capacity of clerk to a well-known solicitor that miss rose tulip had inherited a fortune of £ , odd, he naturally felt interested. many obstacles separated mr. hunter from the object of his choice, but he persevered, and on one particularly sunny afternoon he let loose a chance arrow with such well-directed aim that miss tulip's heart was forthwith pierced. the engagement caused some little flutter in the dove cot, and lady tulip, miss rose's widowed mother, at once changed her solicitors in spite of a promise on their part to decorate mr. hunter with the "order of the boot," a promise which was promptly converted into an accomplished fact. every effort was made to induce miss rose to reconsider her decision, but this only seemed to lead to further complications, for on the th july mr. george tulip announced his engagement to mr. hunter's only sister, rebecca. this was the last straw and the lamentations of the proud tulip family were only exceeded by the rejoicings of the family hunter. the prospective bridegrooms met and made all the necessary arrangements, and mr. hunter, who had had a legal training, drew up four simple wills whereby each left to the widow, or widower, all the worldly goods of which he, or she, was possessed. these documents were signed and witnessed, and four days later the double wedding was solemnized quietly at the church of saint augustine. after the ceremony mr. and mrs. hunter and mr. and mrs. tulip journeyed to liverpool street station and caught the o'clock train to clacton, where the honeymoon was to be spent. they arrived comfortably in time for tea, and mr. hunter insisted on treating the whole party to winkles. now, whether it was the winkles or whether it was the pins, is a matter upon which the two london specialists who were called in failed to agree, but the fact remains that within a very short time of devouring the aforementioned delicacies, the whole party became alarmingly ill, and two days later mr. tulip and mrs. hunter died. mr. tulip's estate, which consisted entirely of personalty, was valued for probate at £ , , and mrs. hunter's estate, which consisted entirely of realty, was valued at £ , . * * * * * what legacy and succession duty was payable on behalf of mrs. tulip, and by mr. hunter? problem no. . the rev. stephen collins delivered a very moving address on total abstinence at the mothers' meeting on the th june, , and three weeks later mr. gunter died. now some of the parishioners were inclined to connect the two events, particularly as mrs. gunter happened to form one of the band of mothers on that memorable occasion, and was known to have given her husband toast and water for supper on the following evening. be that as it may, it is an undoubted fact that mr. gunter, in a codicil to his will, nominated the rev. stephen collins in place of mrs. gunter as life tenant of the income arising from the property of which he (mr. gunter) died possessed. after the payment of all duties, debts and expenses, this property consisted of assets producing income as follows:-- ( ) £ per annum, free of tax, payable quarterly on the usual quarter days. ( ) £ per annum, free of tax, payable half-yearly, on the th june and st december. ( ) £ per annum, free of tax, payable yearly, on the th september. the income was received regularly on the due dates and the reverend gentleman had given a formal receipt for everything due up to and including the st december, . on the th april, , stock no. was sold cum. div. at a profit of £ , and the proceeds were re-invested in a security, the income from which was £ per annum, free of tax, payable half-yearly on the th june and st december. on the th june, , stock no. was sold ex. div. at a loss of £ , and the proceeds were re-invested in a stock ex. div. bringing in £ per annum, free of tax, payable quarterly on the usual quarter days. the rev. stephen collins recognises that the trustees are honourable men and that their intentions are worthy, but nevertheless he is anxious and wishes to be in a position to reassure mrs. collins as to the income which he will receive for the year ending st december, . it is interesting to note that mr. collins has now published the address delivered at the mothers' meeting on the th june, , trusting that the seed sown broadcast may find its way into fruitful soil. problem no. . a prosperous solicitor usually occupies very dirty offices, and his furniture is mostly mid-victorian and rickety. mr. john storalore was no exception to this rule and never seemed to object to such surroundings, but on the contrary always appeared to be surrounded by such objects. he was sitting in his office one june afternoon and was dozing over some particularly dusty documents when his clerk announced sir pufferby pawstone. now sir pufferby was an important client who always had his hair cut and called on his solicitor when he found himself with nothing better to do. it is not surprising, therefore, that mr. storalore should receive him with open arms and assume a very profound expression. after the usual courtesies had been exchanged, and lady pawstone's health touched upon, sir pufferby announced that he desired to make a will. mr. storalore was all attention and took elaborate notes of sir pufferby's testamentary wishes, which were extensive and complicated. this done, sir pufferby begged mr. storalore to give him a brief and concise account of the steps which it is necessary for executors and trustees to take in the administration of the affairs of a deceased person from the moment of death up to the final distribution of the residue. * * * * * do not worry about what mr. storalore actually said to sir pufferby, for sir pufferby was an old woman, and mr. storalore knew his client, but say what he would have said to you in answer to such a question. problem no. . mr. george huggins died on the st october, , and with the exception of a few legacies, bequeathed free of duty, he left the whole of his property to his widow for life with remainder over to his friend mr. giblets, provided that gentleman outlived mrs. huggins. now this arrangement placed mr. giblets in an embarrassing predicament, especially as mrs. huggins' health improved so wonderfully after her husband's death. it appeared to mr. giblets, therefore, that matrimony was the only safe solution of the difficulty, and so he went on his knees before the widow. but the lady grasped the situation immediately, and declined the honour. friendship being thus early at an end mr. giblets resolved to worry the widow, bearing in mind the saying that "worry kills." so he set himself to quibble about every detail in the administration of the late mr. huggins' estate, particularly as regards the apportionment of revenue between capital and income. but the widow would not worry, and wisely suggested to the solicitors that all matters involving accounts should be left to some first-class firm of professional accountants to settle. this was done, and the following are the cash receipts and payments made by the trustees up to the th june, . * * * * * what amount was paid to mrs. huggins on the th june, ? _receipts._ . £ s. d. oct. cash at bank and in house nov. yorkshire coal co., dividends half-year ending th september, , free of tax . jan. dividends on india stock, less tax " " sale of investments , feb. caledonian railway dividends, half-year ending st december, march sale of furniture " " quarter's rent of property to date, less tax at s. d. " " north british investment trust dividends, months to date, free of tax " west ham gas co., half-year's debenture interest, less tax apr. dividends on india stock, less tax june sale of jewellery " " quarter's rent of property _payments._ . nov. medical attendance and nursing fees " " mrs. huggins, on account dec. estate duty " " interest thereon . jan. valuation fees feb. widow, further on account " " funeral expenses march half-year's ground rent, due this day, less tax " " debts due at death apr. widow, further on account " " legacies may duty thereon " " executorship expenses june solicitor's costs re probate " " mason's expenses, restoring, &c, tombstone " " paid widow balance due to her. problem no. . mr. nathaniel soworthy, a great breeder of prize pigs, had the misfortune to be knocked down one day by his favourite berkshire boar, and his head was cut open on the corner of the pig-sty. notwithstanding the fact that mr. soworthy prided himself exceedingly on the extreme cleanliness of his pig-sties, where, as he was often heard to say, he would be quite ready to eat his own dinner, he discovered on that lamentable occasion what must have been the sole surviving microbe on the premises which, entering his circulation, set up blood poisoning with the result that he passed away a few days later, viz., at p.m. on the evening of the st january, . mr. soworthy was a man of many hobbies, and in addition to his prize pigs he possessed a unique collection of silver salt-cellars reputed to be one of the finest in the country. this was valued for probate at £ , , while the pigs were estimated to be worth £ , . in addition he died possessed of the following property:-- £ , india % quoted at - / - / . , ordinary shares of £ each in the improved pork pie factory, ltd., valued at /- per share. £ , mortgage at - / % on the farm known as "little watchem," interest payable th september and st march, paid to th september, . cash in the house, £ . cash at the bank £ on current account and £ , on deposit at %, interest payable th june and st december. £ , policy in the live stock breeders' mutual assurance society, upon which the bonus at the date of death amounted to £ . household goods, horses, and motor car, £ , . implements of husbandry, £ . the freehold estate, comprising mansion house, park, and home farm known as "the piggeries," valued at £ , , subject to a mortgage of £ , at - / %, interest payable th november and st may, paid to th november, . he was also life tenant of real property producing £ , per annum, in respect of which there was income accrued due but not received prior to death amounting to £ . by his will he left the following bequests: £ , in trust to the president for the time being of the royal society for the propagation and improvement of pigs, to be invested and the interest awarded annually in prizes for the best sucking pigs. £ to the perennial society of whole hoggers, of the local branch of which he was the esteemed and honorary president; and his famous white sow, known as the "soworthy sow," to his lifelong friend the celebrated judge of pigs, mr. anthony golightly wackenbath. the prize pigs were directed to be sold and realised £ , . the collection of silver salt-cellars was bequeathed to the victoria and albert museum on condition that it should be shown as a whole and named the soworthy collection. this bequest was accepted. [illustration: "his famous white sow, known as the 'soworthy sow.'"] the debts due at death amounted to £ , and the funeral expenses to £ . within a week of the funeral the famous soworthy sow died in giving birth to a fine litter of ten little pigs, two of which unfortunately pre-deceased their mother. the result of this event had been awaited before sending the sow to mr. wackenbath, who was thus deprived of this mark of the deceased gentleman's affection. the value of the sow alive had been £ , but dead she was not worth more than £ s. d., while the litter, whose father was the same berkshire boar that had been the unwitting cause of mr. soworthy's death, were worth £ a-piece. * * * * * prepare the estate duty account, the affidavit being brought in on the st march, . show the amount of duty and interest payable. problem no. . referring to the preceding problem, all bequests were left free of duty and the residue of the estate was left in equal shares to mr. soworthy's grand-daughter, his brother, and his adopted son. the india stock was sold on the th march, , at ; the shares in the improved pork pie factory, ltd., realised /- per share net on the th may, , after receipt on the st may of a final dividend of /- per share paid in respect of the year ending st march, , an interim dividend of d. per share having been received by mr. soworthy prior to his decease. the mortgage on "little watchem" farm was called in and paid off on the th june, , while "the piggeries" was directed to be sold and realised £ , after payment of all expenses, completion being made on st may. the household goods and implements of husbandry were sold at the same time and produced £ , and £ respectively. the policy money with bonus was received on february th and the proceeds of the sale of pigs on march th, while the income from the real estate was received on february th. estate and legacy duties were paid on march st, and the debts, funeral expenses and legacies were also paid on the same date. executorship expenses amounting to £ were paid on june th. on the last day of each month such portion of the cash balance as was available in round thousands was placed on deposit at %. * * * * * prepare residuary account as at june th, , and state the duties payable on the residue. problem no. . referring to the two preceding problems, prepare an account to be rendered by the executors to the residuary beneficiaries, showing the realisation and distribution of the estate, the final payment to the residuary beneficiaries taking place on july st, . problem no. . to anyone not in the secret, the conduct of mr. pipkin would appear inexplicable, for on march rd, , he very deliberately entered a tobacconist's shop, ordered a threepenny cigar, and afterwards resigned his position as assistant book-keeper in messrs. macfarlane's grocery establishment. the secret, however, lay in the fact that mrs. pipkin had come into money, and mr. pipkin very naturally felt himself independent of other people and yearned for the ease and comfort appertaining to the position of a retired gentleman of means. mrs. pipkin's fortune consisted of a life interest in the property left by mr. austen friars, who died on the th february, . this property was represented by the following assets:-- £ , - / % hongkong stock, interest payable half-yearly, on the st april and st october. shares of £ each (£ s. d. called up and paid) in the commercial banking co., ltd. freehold house bringing in £ a year, payable quarterly, on the usual quarter days. this house was assessed at £ , and the income tax was paid by the tenant on the th january, . £ shares, fully paid, in the perpetual rays co., ltd. april, , was the very happiest month in mr. pipkin's whole life, and he spent most of his time smoking his pipe in his back garden, or improving his mind by contemplating the educative pictures of the local cinema. the months of may and june, however, did not prove quite so pleasant, and by the middle of july mr. pipkin actually threatened mrs. pipkin that unless she kept the baby quiet he would look out for another job. and then august came round which proved to be the most miserable month of mr. pipkin's whole life, for mrs. pipkin was suddenly taken ill after consuming a liberal portion of tinned salmon. never before did he realise how much he loved his wife or what a blow to his heart her death would be. he never left her bedside and he spared no expense, but, in spite of all, mrs. pipkin passed away on the th august, . it would be idle to attempt to depict mr. pipkin's feelings; it is enough to say that he became a poorer but a wiser man. on the rd april, , a dividend for the year ending st january, , at the rate of - / % was declared on the shares in the commercial banking co., ltd., and a similar dividend was declared on the th april, , in respect of the year ending st january, . on the th august, , a final dividend at the rate of % per annum, free of tax, was declared on the shares in the perpetual rays co., ltd., for the half year ending th june, . an interim dividend had been received on the st january, , in respect of the half year ending st december, , at the rate of % per annum, free of tax. no interim dividend was paid during the company's year ending th june, ; but on the st july, , a dividend at the rate of %, free of tax, was declared in respect of the year ending th june, . * * * * * show the exact amount payable to mrs. pipkin and her estate in respect of her life interest under the will of mr. austen friars. [illustration: "two sons, who, if the truth was told, drank much more than they ought'er."] problem no. . on lady day the death occurred of hubert henry huckett, who fell beneath a brewers' dray and promptly kicked the bucket. he left a very charming wife, and one enchanting daughter, two sons, who, if the truth was told, drank much more than they ought'er. his will was proved and it was found he'd left as weird collection of stocks and shares as e'er was known within man's recollection. he'd (£) bags and coils common can. pacs., and (£) berthas, lions and brazil tracs. he'd knackers, breads and just (£) saras, (£) , middies, tanks, and (£) claras. chinas (£) megs, virgins (£) doras, (£) , vestas, matches , bones and (£) noras, the cash at bank was £ , the cash in house was seven, the furniture was valued at four hundred pounds eleven. debts due at death were £ , and no one in their senses can say that £ was much for funeral expenses. the trustee read the will with care and studied it minutely, and found that all was left unto the widow absolutely, except some legacies, which made the worthy man feel dizzy, he read "i hereby leave my bags unto my daughter lizzie." "i leave the virgins to my son, advising him to hold them, unless it proves upon my death i've previously sold them." "i solemnly bequeath my bones unto my second sonny, although i know they'll quickly be converted into money." "i also feel in duty bound to leave my brother's kiddies a legacy, so let his girls take over all the middies." "my trustee gets a hundred pounds for trouble and attention, all legacies are duty free, perhaps i ought to mention." "those whom i leave will thus receive, a generous provision, and when all's paid, they'll see i've made a very just division." _the following lines were addressed by the trustee to the professional accountant:_-- you are a man, to law and figures bred, i am a layman, and i fear to tread the unknown way. you know the course executors should take to carry out their trust, without mistake, without delay. give me then help to ascertain the rate of duty payable on the estate; the residue, which goes to mrs. huckett, and which may be challenged by her lawyer; and i'll pay a fee to you. particulars of investments left by h. h. huckett, deceased. --------------------------------------------------------------------- |short name |full name of investment. |amount left |cum. div price | |of | |by deceased. |at date of | |investment.| | |death | --------------------------------------------------------------------- |bags |buenos ayres gt. southern |£ stock | - | | | rly. ordinary stock | | | --------------------------------------------------------------------- |coils |californian oilfields | shares £ | - / - - / | | | ordinary shares |each | | --------------------------------------------------------------------- |can. pacs. |canadian pacific rly. | shares | - / - - / | | | common stock |$ each |($ =£ ) | --------------------------------------------------------------------- |berthas |london, brighton & south |£ stock | - / - - / | | | coast rly. deferred stock| | | --------------------------------------------------------------------- |lions |j. lyons & co., ltd., | shares £ | - / - - / | | | ordinary shares |each | | --------------------------------------------------------------------- |brazil |brazil traction light and | shares | - ($ =£ ) | |tracs. | power |$ each | | --------------------------------------------------------------------- |knackers |harrison, barber & co., | shares £ | - / - | | | ltd. |each | | --------------------------------------------------------------------- |breads |aerated bread co., ltd. | shares £ | - / - - / | | | |each | | --------------------------------------------------------------------- |saras |great central rly. |£ stock | - / - - / | | | deferred stock | | | --------------------------------------------------------------------- |middies |midland rly. deferred |£ , stock | - / - | | | ordinary stock | | | --------------------------------------------------------------------- |tanks |tanganyika concessions | shares £ | - / - - / | | | |each | | --------------------------------------------------------------------- |claras |caledonian rly. deferred |£ stock... | - / - - / | | | converted ordinary stock | | | --------------------------------------------------------------------- |chinas |eastern extension | shares | - / - - / | | | telegraph co. ordinary | £ each | | | | shares | | | --------------------------------------------------------------------- |megs |mexican rly. st |£ stock | - | | | preference stock | | | --------------------------------------------------------------------- |virgins |virginia new funded bonds | bonds $ | - ($ =£ ) | | | |each | | --------------------------------------------------------------------- |doras |south eastern rly. |£ stock... | - / - | | | deferred stock | | | --------------------------------------------------------------------- |vestas |railway investment co. |£ stock | - / - - / | | |deferred stock | | | --------------------------------------------------------------------- |matches |bryant & may, ltd., | shares £ | / - - / | | |ordinary shares |each | | --------------------------------------------------------------------- |bones |wickens, pease & co. | shares £ | / - - / | | |ordinary shares |each | | --------------------------------------------------------------------- |noras |great northern rly. |£ stock... | - / - - / | | |deferred stock | | | --------------------------------------------------------------------- problem no. . the late mr. john bunyon died in affluent circumstances after having, by the exercise of keen business instincts, overcome those obstacles which confront every great philanthropist who combines the cause of humanity with the desire to achieve wealth and fame. in his early days he vended to a suffering but suspicious public, a commodity known as "bunyon's specific"; and it was his custom at this time to commence his nightly oration to his potential patients at the street corner with the words, "ladies and gentlemen, i have extracted corns from all the crowned heads of europe." in later years, when by the aid of judicious advertising he had convinced the public that no home was complete without his famous specific, mr. bunyon sold his business to a limited company, and on then calculating his wealth, found himself rich beyond the dreams of avarice. he thereupon decided to enter society, and after some difficulty procured an introduction to mr. james rooker, who obtained for him--for a consideration--the entrée into that sphere of social life which he was so eminently fitted to adorn. on mr. rooker's advice, he purchased a freehold house in a favourable quarter of the west end of london, but owing to a desire not to disturb certain investments, he raised £ , of the purchase price by mortgage, which at the time of his decease had not been repaid. in view of the great services rendered to him by mr. james rooker, mr. bunyon promised to remember him and his family in his will; which led mr. rooker to be very solicitous concerning mr. bunyon's health until he was certain that a will had been executed, and subsequently caused him much speculation as to whether an early decease of his patron might not be more beneficial than the advantages to be gained from him whilst alive. mr. bunyon's death put an end to these speculations, and it occurred under the following circumstances. having met mr. rooker by appointment at that gentleman's house, they spent a merry hour at the card table, much to mr. rooker's advantage. they then sallied forth in a taxi-cab; when suddenly remembering that he had parted with all his ready cash, and knowing that mr. rooker never paid for cabs on principle, mr. bunyon ordered the chauffeur to drive to attenborough's and there placed his diamond pin in pledge for the sum of £ . feeling somewhat faint after this exertion, he instructed the chauffeur to drive to a chemist's where he ordered a pick-me-up. the chemist not knowing his customer, considered his symptoms a fit case for a dose of "bunyon's specific," of which mr. bunyon unwittingly partook, and so met his death. mr. bunyon's will was found to contain the following legacies and devises in favour of the rooker family:-- mr. james rooker, my diamond pin. mr. tracey rook rooker, , shares in "bunyon, ltd." mr. ricardo rook rooker, my freehold house in london. miss christabel rook rooker, £ of consols out of my £ , consols. miss emmeline rook rooker, £ payable out of my £ , consols. it was found that both the shares in "bunyon, ltd." and the consols, had been sold shortly before mr. bunyon's death. the freehold house was valued at £ , , the diamond pin at £ . * * * * * the net value of his estate when aggregated was £ , . what did the rooker family receive, and what duties were payable by them? [illustration: by appointment to h.m. the king j. miles & co ltd printers & . wardour st, london, w. ] [transcriber's note: in the following, the original text of the foreword is repeated with an informal english translation by proofer "lucy " (louise hope). this was not in the original text, but is provided by the transcribers for the convenience of the reader. the english text below is placed in the public domain.] foreword. by d. f. de l'hoste ranking, m.a., ll.d. de mortuo illo quid dicam? what shall i say about the deceased? "nilnisi bonum" ut aiunt. "nothing but good" as they say. sed quid si nil boni fecit? but what if he didn't do any(thing) good? de bonis licet loqui. one can talk about his goods. at si nulla bona reliquit? but what if he left no goods? de eo tacere decet: one should keep quiet about that: si neque bonum fecit nec bona acquisivit nil valet. if he neither did good nor acquired goods, he is worthless. sed si bona reliquit in sermonem hominum semper venit; but if he left property, people always talk about him; vitia operta sunt; his faults are concealed; pecuniam fecit, illa quidem "non olet." he made money, and it "doesn't smell". quem heredem instituit? whom did he name as heir? extraneis haec omnia livori proxima videntur. to outsiders all these seem next door to envy. te autem si tu aut cognatione aut affinitate propinquus exspectatio tenet. but you--if you are close, either by acquaintance or relationship, expectation grips you. an mea interest? si sic habet, quanti? but does it concern me? if that's how it is, how much? suave est ex magno tollere acervo; it's pleasant to receive a big heap; ejus pecunia quid non facere possim? with his money, what couldn't i do? siste, amice; aliquantulum cogita; stop, friend; think a little; supersunt multi cognati; there remain many friends; fieri potest ut aut cum aliis bona partire debeas, aut exheredatus sis. it may be that either you have to share the goods with others, or you are disinherited. gerrae! sine dubio testamentum fecit: nonsense! without a doubt he made a will: et cum ratione constat me alicuius rei legatarium esse. and it's reasonable to think i was left something. nemo enim magis eum fovit; for nobody took better care of him; alii omnes cognati asseclae; solus eum amavi. all his other friends only cared about his money; i alone loved him. insipiens, inter os et offam multa intervenire possunt. o fool, many things can come "between the mouth and the morsel" [latin idiom, like "many a slip between cup and lip"?] audi de gente fulvia fabellam: i've heard the story of the fulvian people: de multis mutato nomine narratur. it is told of many, with the name changed. (in scena est coenatio georgii fusci, argentariorum interpretis. (setting: the dining room of george black, assayer of money. fuscus, bene coenatus, alterum cyathum falerni sorbillat. black, having dined well, is enjoying his second glass of port. accurrit uxor, commota; his wife runs in, excited; in manu litteras resignatas tenet). in her hand she holds a signed paper.) u. georgi! george! f. quid tibi nunc est? num quid novi est? what's the matter with you? what's happening? u. amita mea maria decessit! my aunt mary has died! f. bene! nunquam postea illud vile sabinum necesse erit obsorbere: good! i will never again have to drink her vile claret: magnum est solatium. that's a great solace. u. at tu georgi semper id laudasti! but george, you always praised it! f. et tu simul filiaeque semper miratae estis persicam illam detestabilem and you and your daughter always admired that detestable persian et psittacum dissonum, et laudibus extulistis: and the raucous parrot, and sang their praises: pretium fuit vetulae placere. that's the cost of pleasing old women. u. esto: illa vero suavia erant. never mind: they were really agreeable. at hic mihi litterae a cognitore ejus semaureo allatae: but this letter was sent to me by her solicitor [semaureus]: dicit se hodie vesperi te conventurum. he says he is coming to [see] you this evening. f. demiror si testamentum fecit! i'll be amazed if she made a will! sin minus omnia ad te perveniunt, if not, everything goes to you; tu heres ex asse; you are the [default/intestate] heir; cognati alii desunt. there are no other relatives u. est quidem mariti nepos iste. there's that nephew of her husband. f. nullus: tu sola heres: that's nothing: you alone are the heir: si intestata omnia ad te. if she [died] intestate, everything goes to you. u. tabulas vere fecit: she really made an accounting: cognitor scribit se te conventurum quia her solicitor writes that he is coming to you because testamentum ad rem tuam maxime pertinet. her will greatly concerns your business. f. mihi crede igitur! then believe me! aliquid magni tibi legavit: she left you something big: haud verisimile illam quidquam juveni albo legasse: it's hardly likely that she left anything to young white: nunquam illam observavit; he never paid any attention to her; homo nil est nisi pictor ignotus aut aliquid simile: he is nobody except an unknown painter or something like that: uxorem quoque duxit quamdam inopem, he also married some penniless woman, et eis saepe amita tua subvenire debuit. and your aunt always had to come to their assistance. u. fores pulsantur: advenit cognitor! there's a knock at the door: her solicitor has arrived! f. dic famulae ut alteram cyathum ponat. tell the maid to bring another glass. (ingreditur dominus semaureus.) (enter mr [semaureus].) quid agis vir doctissime? how are you, my esteemed friend? mea uxor dixit te venturum; my wife said you were coming; nonne ob testamentum amitae ejus? is it about the will of her aunt? s. sic res habet, fusce; that's how it is, black; venio ad te quod hoc res tua maxime refert; i come to you because this concerns you greatly; et scio te onus suscepturum. and i know you will take up the burden. f. an sic habet? is that how it is? vetulae illi multa bona provenere ut opinor. the old lady left a large property, i think. s. permulta: super haec te consulendum putavi. very large: i thought to consult you about it. hic mecum tabulas attuli ut eas inspicias. i have brought the accounting with me so you can study it. f. bene est; dignissima erat; cui semper plurimum tribui. good; she was a worthy lady; i always said so. falerni sume cyathum. have a glass of port. s. benigne dicis; dimidium: you are very kind; half a glass; bona venia uxoris tuae est mihi in animo with the permission of your wife i am thinking of telling you summas testamenti reddere; the amounts in the will; ad illam quoque pertinet. it concerns her too. (testamenta allata resignat.) (opens the will he has brought.) post nonnulla famulis legata ita instituit: after several bequests to servants, it states: "fratris filiae mariae lego persicam et psittacum to my brother's daughter mary i leave the persian and the parrot, quae animalia tantopere admirata est, which animals she greatly admired, certa fiducia se illis hospitium praebituram; in the full confidence that she will provide a good home for them; eidem etiam lego annulum meum gemmatum. to her i also leave my diamond ring. nepoti ejusdem mariae viro georgio fusco lego omne to my niece mary's husband george black i leave quod in hypogaeo superest vinum illud falernum all the wine that remains in my cellar because quod semper laudabat." he always praised it. f. (in malam rem.) (black is unhappy.) s. "quod ad ceteras possessiones as to my remaining possessions, georgius fuscus heres esto ex asse: let george black inherit all: (subridet fuscus et uxori in aurem susurrat "ita ut dixi.") (black smiles and whispers in his wife's ear "as i said.") s. (conversa tabula) (turning the page) "et rogo eum ut cum primum potuerit haereditatem adire, "and i ask him to go to the inheritance as soon as possible, omnibus et fundis et mobilibus venditis, to sell both real property and chattel, pecunias in cautionibus publica auctoritate factis to deposit the money in a bank collocet et fructus reddat nepoti mariti mei and give the interest to my husband's nephew jacobo albo et uxori suae in aetatem john white and his wife for their lifetimes aut utri eorum vita superarit: or to whichever of them outlives the other: eis mortuis ut inter liberos eorum caput dividat: when they die, the capital is to be divided among their children: aut liberis sine prole defunctis or if their children die without offspring caput reddat ad sodalitatem anthropophagis africanis the capital goes to the african cannibal mission informandis et nutriendis institutam: established to educate and provide for them: praemio sint fiduciario viginti in annum librae." let the executor's pay be twenty pounds a year." f. anus odiosa et malefica! hateful and malicious old woman! at enitar ut testamentum rescindatur; i will try to overturn the will; inofficiosi testamenti querelam instituam! i will make a complaint about this useless will! delira fuit! she was mad! s. immo mentis omnino compos fuit, improbe: on the contrary she was of completely sound mind, unworthy man: sic summa fide clamabo et testabor. i will affirm and witness to this. verba tua pro tempore et re indecora. your words are spontaneous and unfitting. tui piget me: evado. i am ashamed of you: i shun you. f. maria! mary! u. georgi! george! uterque. exsecrabilis illa! both. detestable woman! (aulaeum tollitur.) (curtain.) transcriber's note. apparent typographical errors have been corrected. the use of hyphens has been rationalised. italics are indicated by _underscores_. small capitals have been replaced by full capitals. square brackets, which indicate sidenotes and footnotes, are also present in the text. there are several words in anglo-saxon script. these are indicated by =equal signs=. the individual characters have been replaced by their modern equivalents: "wynn" by "w", and so on. the office of bailiff of a liberty. by joseph ritson, esq. barrister at law, late high bailiff of the savoy. ballivus cujuscunque manerii esse debet in verbo verax, et in opere diligens ac fidelis, ac pro discreto appruatore cognitus, plegiatus, & electus, qui de communioribus legibus pro tanto officio sufficienter se cognoscat, et quòd sit ita justus, quòd ob vindictam vel cupiditatem non quærat versus tenentes domini, vel aliquos sibi subditos, occasiones injustas, per quas destrui debent, seu graviter amerciari. fleta. _l. . c. ._ london: printed by a. strahan, law-printer to the kings most excellent majesty; for j. butterworth, law-bookseller, fleet-street. . advertisement. the little work now offered to the public was originally compiled by mr. ritson about the same period as similar treatises, on _the office of constable_, and _the jurisdiction of the court-leet_, published in his lifetime. the author's attachment to the subject, it is believed, induced him to defer the publication of the present digest, in the hope of increasing its value by ampler information or more diligent research; and this object appears to have been sufficiently pursued, during the latter years of the author's life, to answer his wishes, as the work was left by him in every respect ready for the press. the editor feels it due to the memory of his much honored and lamented uncle to add, that the recent publications to which mr. ritson's name, from interested motives, has been, very unwarrantably, affixed, are not intitled to any credit. joseph frank. stockton-upon-tees, st february . preface. the subject of the following digest is not, as may be hastily imagined, a matter of mere curiosity or antiquarian research. the officer of whom it treats exercises his function in many parts of the kingdom, in its fullest extent, at this day; though the attention requisite in certain branches of his duty may in some places, no doubt, have induced him to neglect them. the want of such a compilation as the present must have been more or less felt by every one who has acted in the execution of this office; and indeed it ought to seem much more extraordinary (considering the multitude of similar publications on other subjects) that it should not have been attempted long ago, than that it appears at present. little can, and less need be said in favour of a work which has no obligations either to genius or to judgement: some labour, however, has undoubtedly been exerted in the compilation, which, should it have the good fortune to prove so far serviceable to those whom it most concerns, as to render the discharge of an ancient and honorable office an object of less difficulty or hazard, the 'compiler' will not have reason to regret. contents. page introduction xi book i. of a franchise or liberty chap. i. of franchises in general ---- ii. of the liberty of _retorna brevium_, or return of writs book ii. of the bailiff of a franchise or liberty chap. i. of his quality ---- ii. of his creation or appointment, and interest in his office ---- iii. of his qualification ---- iv. of his power and capacity; i. e. what he may or may not do or be ---- v. of his duty, i. e. what he must or shall do or not do ---- vi. of his indemnity and protection ---- vii. of his responsibility and punishment ---- viii. of his fees ---- ix. pleadings appendix introduction. bailiff (_baillif_, or _baillie_ french; _ballivus_, latin; from _balliare_ to deliver, intrust, or commit,) is the name given by the normans to those ministers of the law whom the saxons called =gerefa=, _greve_ or _reve_[ ]: an appellation which, however corruptly, we still retain in the word _sheriff_, (=scyre-gerefa=, or _shire-reve_,) and by which the bailiff of a manor is in many parts of the kingdom known to this day. the sheriff himself did not, it is true, long continue to enjoy the title of bailiff, which gave place to the more honorable one of _vicecomes_ or _viscount_ (_qui fungitur vice comitis_,) by which name alone he was constantly stiled in all judicial proceedings, till the progressive ascendency of the english tongue restored to him his ancient and original appellation. his county, however, is still called his _bailiwick_[ ], he is often mentioned in _magna charta_ and ancient statutes along with _alii ballivi_, and is himself frequently included under that title[ ]. between this officer and the bailiff of a hundred, manor or liberty, such a perfect resemblance appears to have subsisted, in all respects, that there cannot be a doubt that both were the produce, if not of the same hand, at least, of the same system. the division of the kingdom into counties, hundreds and tithings, is well known to be owing to the wise policy of the great Ælfred[ ]; each county, hundred or tithing is agreed to have been subjected to an officer known by the common name of the =gerefa=; he who presided over the county at large being usually, by way of distinction, called the =heh= or =scyre-gerefa= and sometimes the =scyr=-man, as the others were stiled the =hundred= and =tything-gerefa= or the hundreder, and tithingman[ ]. we are but imperfectly acquainted with the duty of this officer till after the conquest. it is said, indeed, that the sheriff, in the time of the saxons, was not the minister of the king, but the officer of the =ealderman= or =eorl=[ ]. and what this alderman or earl was to the county, the lord or thain was, no doubt, to his manor or liberty, and what the sheriff was to the former, the inferior =gerefa= or bailiff was to the latter. certain it is that not only the several courts of which we shall have occasion to speak, but what we now call manors or liberties, existed from a very early period, nor was it possible for the norman kings to enlarge, in favour of their own countrymen, the amazing powers which almost every petty saxon thain or lord exercised in his jurisdiction, either from the nature of the constitution and ordinary course of law, or the liberal grants of the saxon monarchs: powers which the norman jurists never found themselves able to express in a different language[ ]. the sheriff was originally elected by the freeholders or suitors of the great court baron of the county, commonly called the county court; the bailiff by the freeholders of the hundred or manor, suitors to the court baron of each division[ ]: and when the right of election in the former case was wrested from the people by the norman tyrants[ ], the same right in the latter case was usurped by the lord of the hundred or manor. the sheriff presided as judge in the folkmote or leet of the county, the bailiff in that of the hundred or manor. the former sat as principal executive officer of the county court; the bailiff, of the court baron; the freeholders or suitors being the judges in each to this day: and though both seem to have been anciently considered as the kings courts, yet offences were in one alledged to be _contra pacem ballivi_, and in the other _contra pacem vicecomitis_[ ]. the fines and amerciaments imposed in these courts were levied, and the process of the court executed by the sheriff and bailiff in the same manner; each having his serjeants or inferior officers to assist him: and in the proceedings of the above courts, or others nearly similar, and held by or before the same persons, was comprehended the whole system, as well of the civil as of the criminal law of that age, not only before the institution of judges itinerant, but (in many cases at least) long after. the revenue of the crown was collected and accounted for by the sheriff and bailiff within their respective jurisdictions: and as each of them governed the tenants in peace, so he led them forth to war when necessity required[ ]. each of them had likewise his proper _aid_ or _scot_, which he assessed upon the landholders within his bailiwick, who frequently complained of it as an intolerable grievance, and as such it was at length abolished. the kings writ is thought not to have run as it now does till about the institution of the eyre or iter of the justices by k. _h. _.[ ] how his commands were signified before this invention does not clearly appear[ ]; but certainly after it took place, the execution of the writ (though necessarily directed to the sheriff) was as much the duty of the bailiff within the franchise, as of the sheriff without; nor could the latter, without a special authority, interfere in the most trivial matter which belonged to the other. in short, whatever the sheriff did or could do in the county at large the bailiff could do and did within his franchise, whether hundred[ ] or manor. such was the ancient constitution, and such in a great measure will appear from the following sheets to be the law at this day. [ ] from =gerefen= _tollere_, _rapere_, _exigere_. _exactor regis (sc. mulctarum & jurium suorum). ideo scil. quod mulctas regias et delinquentium facultates, in fiscum raperent, exigerent, deportarent._ spelman, _voce_ reve. [ ] see _co. lit. , b._ whenever the sheriff in any judicial proceedings speaks or is spoken to of his county, the law in fact has regularly no other name for it; _in comitatu meo_ or _tuo_ for instance has (frequently at least) a very different meaning. [ ] _ inst. ._ blount, _voce_ bailiff. and see _fortescue on monarchy_, . _sed quia_ vicecomes ... _fuit_ ... magnus domini regis ballivus. _m. paris._ . the governors of the city of london were originally called portreves, then bailiffs, then sheriffs, and at last mayors. _stows survey_, by strype. _b. v. c. ._ [ ] _ingulphus (apud scriptores post bedam)._ . _gul. malmesburiensis de gestis regum. ibi._ . camdens _britannia. clxvii._ _seldeni analecta, opera, ii._ . notes upon draytons polyolbion. song xi. (works. iv. .) shires, however, it is certain there were before this time. see bradys hist. of eng. i. . . and sir j. spelmans life of Ælfred. . [ ] the _præpositus villæ_, or bailiff of a manor, was also called the =tungerefa= or tungreve. _vide_ spelman, _voce_ grafio. [ ] hickes. dis. epis. . [ ] infangtheof, outfangtheof, thol, theam, soc, sac, blodwite, fythewite, flyhtewite, fledwite, ferdwite, hengewite, leirwite, childwite, wardwite, grithbrech, hamsocn, forstall, ordel, oreste, flemenefrith, miskennyng, burgbruch, &c. &c. [ ] kennet, par. ant. glos. v. _præpositus_. another title common to sheriff, bailiff, and reve. [ ] this privilege was restored to the people by the _articuli super chartas_; _ e. . c. ._ but resumed in the following reign, and has ever since continued in the crown. _ e . st. . jenk._ . they enjoy the right of electing the coroner still; chiefly, it is supposed, because it has not been thought worth taking from them. [ ] _fleta. l. . c. ._ § . the _steward_ has been in possession of this branch of the bailiffs office for many centuries. when this transfer took place would be scarcely possible to discover. it should seem, however, to have been gradual, and might possibly have its rise from the _senescallus_, the =styweard= or _major-domo_ being sometimes more conversant in forensic matters than the bailiff, whose office chiefly concerned the management of the lords demesne and other out-of-door concerns. the _mirror_ (written in the time of _e. ._) constantly speaks of the bailiff as judge of the court leet; see also ken. _par. ant._ p. . and thus finch, speaking of the county court and court baron, says "the suitors are the judges and the _bailiff_ and sheriff are but ministers." _law._ . and hence, perhaps, it has been held that both offices might be enjoyed by one and the same person. _cro. jac._ . (cites _ h. ._) and it should seem from bracton that writs were indifferently directed to either the steward, or the bailiff, _ballivo vel senescallo_. _l. . c. ._ about the time that this separation took place, the lowest branches of the bailiffs office were transfered to an inferior minister, named a _reve_, of whom we read at large in _fleta. l. . c. ._ but possibly this was only the case in extensive manors and demesnes, where a single person was found unequal to the discharge of the united functions of _steward_, _bailiff_, and _reve_. [ ] lambards _perambulation of kent._ p. . [ ] _v._ prynne, animad. on inst. p. . _hickes. dis. ep._ p. . . see however in madox, his. ex. p. . an instance of justices itinerant in the time of k. stephen. writs unknown to the saxons. _hickes. u. s._ p. . [ ] a collection of all the writs and charters that can be met with of the first three or four norman kings would be a useful, curious, and interesting work. [ ] most hundreds have, by statute or otherwise, been united to the body of the county and power of the sheriff. but many of them, having been granted in fee, still exist as independent franchises. the office of bailiff of a liberty. book i. of a franchise or liberty[ ]. chapter i. of franchises in general. [sidenote: royal privilege.] [sidenote: forfeiture.] a franchise is a royal privilege in the hands of a subject; and is forfeited by misusing it. _finch_, . [sidenote: record.] if a franchise be of record in any court of the king it is sufficient. _ h. . ._ [sidenote: _quo warranto._] allowance of franchises in _quo warranto_ or in eyre shall conclude the king, for this is the suit of the king to try franchise; _contra_ of allowance in the common bench or other court. _ h. . ._ _br. fraunches & liberties_, . [sidenote: general statute.] franchise bound by general statute, _tam_ within _quam_ without the franchise. _ h. . ._ franchise or other special liberty or privilege shall not be defeated by general statute. _ h. . ._[ ] [sidenote: prisons.] albeit divers lords of liberties have custody of the prisons and some in fee, yet the prison itself is the kings _pro bono publico_; and therefore it is to be repaired at the common charge; for no subject can have the prison itself. _ inst._ . none can claim a prison as a franchise, unless they have also a jail-delivery of felony, which the dean and chapter of westminster hath not, and therefore ought to send a calendar of 'prisoners' to newgate, or return the _habeas corpus_ to _b. r._ with a claim of their franchise. _ salk._ . [sidenote: _magna charta._] by _mag. char._ c. ., are saved to all archbishops, &c. earls, barons, and all others, all liberties and free customs which they had enjoyed before. in the preamble to many of the old statutes it is stipulated that all the lords spiritual and temporal, and the other lieges of the king having liberties and franchises, shall have and enjoy all their liberties and franchises which they have of the grant of the kings progenitors and of his own grant and confirmation. this is the constant preface to the petition rolls to which the king always answers "_le roy le voet_." _rot. parl._ _passim_. and that all persons and corporations may fully enjoy their liberties, [and] franchises, [was] one prime cause of calling parliaments, and so declared, and the conservation of them one chief petition of the commons when violated. _abridgement of the records_[ ]. _table_, _voce_ liberties. [ ] note, that these words are in this work used in two different senses, but both equally common: viz. . for the privilege itself, as the franchise or liberty of _retorna brevium_: . for the manor or territory in or over which that privilege is exercised, as the liberty or franchise of the savoy. there will seldom, if ever, be any confusion or obscurity on this account. [ ] vide _co. lit._ . and the case of the king against pugh. _douglas_ . [ ] published by prynne under the name of sir robert cotton, but said to have been actually compiled by william bowyer, keeper of the records in the tower in the time of queen elizabeth. chapter ii. of the liberty of _retorna brevium_, or return of writs. [sidenote: roll of liberties.] [sidenote: _non omittas._] by _w. . c. ._ the treasurer of the exchequer shall deliver in a roll all the liberties in all shires that have return of writs. and if the sheriff answer that he hath made return to the bailiffs of any other liberty than is contained in the said roll, the sheriff shall be forthwith punished as a disheritor of the king and his crown[ ]. and if peradventure he answer that he hath returned the writ to the bailiffs of some liberty that indeed hath return who hath done nothing therein[ ], the sheriff shall be commanded that he shall not omit by reason of the aforesaid liberty, but that the kings precept shall be executed; and that he make known to the bailiffs to whom he returned the writ that they be at a day contained in the writ to answer why they have not made execution of the kings precept. and if they come at the day and acquit themselves that return of the writ was not made to them, the sheriff shall be forthwith condemned to the lord of the same liberty, and likewise the party grieved by the delay in restitution of damages. and if the bailiffs come not at the day, or come and do not acquit themselves in manner aforesaid, in every judicial writ, so long as the plea endureth, the sheriff shall be commanded that he omit not because of the liberty, &c. that the statute, in this respect, was little more than a declaration of the common law, appears from _bracton. l. . c. ._ [sidenote: indenture.] by _ e. . c. ._ of returns which shall be made to sheriffs by bailiffs of such franchises as have full return of the kings writs, an indenture shall be made between the bailiff of the franchise by his proper name, and the sheriff by his proper name. and if any sheriff change the return so delivered to him by indenture, and thereof be convicted at the suit of the lord of the franchise, of whom he shall have received such return, if the lord shall have sustained any damage, or his franchise be imblemished, and at the suit of the party who shall have sustained damage by that occasion, he shall be punished on behalf of the king for his false return, and render to the lord and to the party double damages. [sidenote: prescription.] return of writs may be claimed by prescription as appertaining to a manor. but more especially may it be claimed as appertaining to an honour. _hardres._ . [sidenote: escheat,] where a man hath _retorna brevium_, which liberty comes to the hands of the king by escheat _vel aliter_, this unity in the king shall not extinguish the liberty. _keilwey._ .[ ] [sidenote: a dangerous liberty!] this liberty of retorna brevium (saith c. b. hale) is a dangerous liberty for him that hath it; for he is to be responsible for all the defaults of his bailiffs, as escapes, &c. and if the bailiff do not account for the collection of the kings revenue he is responsible for it; 'tis a feather in his cap, but a thorn in his foot. _ vent._ . [sidenote: sheriff.] this liberty though it carries an exemption, yet it doth not exclude, but that the sheriff may execute writs within it. but then it is a wrong for which the lord of the liberty may have his action: but in some cases the sheriff may lawfully do it, as in the case of the king. a _non omittas_, _&c._ in case of execution of a writ of waste, whereto he is particularly empowered by the statute, and sometimes where the thing is divided[ ]. (by hale c. b.) _ vent._ . [sidenote: warrant.] if an action be brought in a county, and the place where, _&c._ is the franchise of another who hath return and execution of writs within the said franchise, yet the writ shall issue to the sheriff, and he ought to make over a warrant to the bailiff of the franchise to execute the same writ; and the writ shall not be directed to the bailiff, &c. for he is not officer to the court. and moreover it shall be intended that all vills in the county are within the power of the sheriff till the contrary be made appear by return of the sheriff. _ h. . ._ to the sheriff the writ must be directed, though it be for a thing done in a franchise, and he shall send to a [_l._ the] bailiff of the franchise who shall serve it as a servant to the sheriff[ ], and the sheriff return it _finch._ . [sidenote: service by sheriff.] and though the sheriff serve an execution in a franchise, yet it is good. and the lord of the franchise is driven to his action upon the case against the sheriff, for the sheriff is immediate officer. _id._ _ib._ where the sheriff makes execution in franchise it is good, for he is immediate officer to the court; otherwise where bailiff makes execution in the guildable; and the lord of the franchise in the first case shall have his remedy for infringing the franchise. _ h. . br. execution._ . [sidenote: the king party.] if the sheriff without _non omittas_ serve process within liberty or franchise that hath return of writs it is good. _ h. . ._ _ h. . ._ but the lord of the franchise shall have action upon the case against him. _fitz. nat. bre._ .[ ] but if the king be party the lord hath no remedy, for the writ for the king is always _non omittas_ in law. _ lib. ass._ . _cromp. j. p._ .[ ] where the king is party the _venire facias_ shall make mention of _non omittas_; for where the king is party the sheriff shall not write to the bailiff of the franchise, but serve the process himself. _ ass._ p. . _br. fraunches & liberties_, . the king hath no other minister than the sheriff, and where the king is a party no franchise shall be allowed. _fitz. chal._ . where the king is party as against felon or otherwise in action, the franchise shall not take place, but the sheriff ought to enter the franchise and serve the process, unless this clause _licet fuerimus pars_ be in the charter, in which case it seems otherwise. _ ass._ p. . _br. fraunches & liberties_, . if the king grant _returna omnium brevium_, yet he shall not have return of the summons of the exchequer. _ ass._ p. . _br. patentes_, . [sidenote: arrest by sheriff.] _per glynn_ ch. j. mich. ; if one be arrested by the sheriff of the county within a liberty, without a _non omittas_, yet the arrest is good; for the sheriff is sheriff of the whole county, but the bailiff of the liberty may have his action against the sheriff for entering his liberty[ ]; but upon a _quo minus_, a sheriff may enter any liberty, and execute it _impune_. _r. s. l._ . _cites_ _pract. reg._ . _viner, franchises_, (_b._) . [sidenote: _non omittas_, _capias utlagatum_, _quo minus_.] the sheriff, upon a _non omittas_, _capias utlagatum_, or _quo minus_, may enter and make an arrest in any franchise. _l. p. r._ . _viner, franchises_, (_b._) . [sidenote: _non omittas._] in the county of suffolk are two liberties, one of st. edmund bury, and the other of st. ethelred of ely: suppose a _capias_ comes at the suit of _a._ to the sheriff of suffolk, to arrest the body of _b._ the sheriff makes a mandate to the bailiff of the liberty of st. ethelred, who makes no answer; in that case the plaintiff shall have a writ of _non omittas_, and by force thereof he may arrest the defendant within the liberty of bury, although no default was in him [_sci._ in the bailiff of that liberty.] _ rep._ . but this is to be understood of the process of the kings bench; for common pleas recites the _capias_, the sheriffs return, that he has made his mandate to the bailiff, who has given no answer, and then gives the sheriff power to enter the liberty; but in the kings bench, on the sheriffs return on the _latitat_, the authority is general, _non omittas propter aliquam libertatem_, which gives the sheriff power to enter not only that liberty, but all the liberties within the county: and this seems to be grounded on the words of the _latitat_, (viz.) _latitat_ and _discurrit_, so that the defendant is supposed to skulk and run from one place to another; and therefore the _non omittas_ was made general, that he might not run from one liberty to another. _gilb. hist. c. p._ .[ ] [sidenote: justice of peace.] a warrant of a justice of peace to arrest for felony may be executed in a franchise within the county, for it is the kings suit, in which a _non omittas_ is virtually included. _ hale p. c._ .[ ] [sidenote: process.] by _ g. . c. ._ § ., in particular franchises and jurisdictions the proper officer there shall execute such process [i. e. where cause of action in superior court is under l. in inferior court under s.] [made perpetual by g. ii. c. .][ ] [sidenote: sheriffs deputy.] by _ g. . c. ._ § ., for the better and more speedy execution of process within particular franchises or liberties, the sheriff of every shire, being no city or town made a shire, within which there is any franchise or liberty, the lord or proprietor whereof is of right intitled to the return of writs within such franchise or liberty, shall (if required by any such lord or proprietor) within one month next after such request made to him for that purpose, nominate and appoint one or more sufficient deputy or deputies, at the proper costs and charge of such lord or proprietor, to be resident at some convenient town or place in or near such franchise or liberty, to be for that purpose appointed by the lord high chancellor of great britain, and the chief justices of his majestys courts of kings bench and common pleas for the time being, or any one of them, who is and are hereby authorized and impowered to appoint such convenient town or place as to him or them shall seem meet, and to settle and direct what costs and charges shall be paid therefore by such lord or proprietor; and such deputy or deputies shall reside at such town or place so to be appointed as aforesaid, and shall have authority in the sheriffs name, and is and are respectively authorized and impowered to receive and open all such writs and process (the execution or return whereof doth of right belong to the lord or proprietor of any such franchise or liberty) and thereupon in the name, and under the seal of the sheriff, to make and issue out such warrant or warrants to such lord or proprietor, as by law is requisite, for the due execution of such writs or process; and every such deputy or deputies is and are hereby required, upon tender of any such writ or process, to receive and open the same, and to issue out such warrant thereon, without delay, in such manner and form as the sheriff himself may or ought to do, without taking any further or other fee than what is now due and accustomed for such warrant; upon pain that every such sheriff or deputy respectively, who shall be guilty of any wilful neglect or default in the premises shall be liable to be punished for the same, as for a contempt of one of his majestys said courts of chancery, kings bench, or common pleas (as the case shall require), and shall likewise make satisfaction to the party or parties that shall receive damage thereby. [sidenote: _ca._ and _non om._] _note._ it is now usual to take out the _capias_ and _non omittas_ together, without staying for the sheriffs return[ ]. _gilb. hist. c. p._ . _note_, if any of your defendants live within a liberty where the sheriff may not enter, you must get the sheriff to direct his warrant on your writ to the bailiff of such liberty, who may execute it; but if the bailiff of such liberty do not execute it, then you must at the return of your writ, get the sheriff to return a _mandavi ballivo_ thereon, and thereupon you make out a writ called a _non omittas_, directed to the sheriff, and upon that writ the sheriffs officers may, upon the sheriffs warrant made out thereon, enter and execute the warrant within such liberty. _ instructor clericalis._ . and _note_, the usual practice in such case is if the defendant dwells in the country, to send down a _non omittas_ with the _latitat_ for dispatch. _ib._ scac. e. . _l. digby_ v. _meech_ et al. bill to establish plaintiffs right to the manor, &c. of sherborn castleton in the county of dorset, to greenwax fines, &c., and also poundage fees on executions and _retorna brevium_, &c. by virtue of a grant jac. . the bill was brought against three succeeding sheriffs of the county, and templeman, who had been the undersheriff for three or four years, and as to him to have an account of what poundage fees, &c. he had received within the liberty: the title set forth by plaintiff was, that king james i. granted to sir john digby (after earl of bristol), from him they descended to george, from him to john earl of bristol, _and on his death vested in plaintiff_. it was objected at the hearing that here was not a sufficient title set forth, it not appearing how the premises vested in plaintiff, whether by descent, settlement, or how. and _per tot' cur'_ the bill ought to be dismissed for that reason; the bill being to establish a right, as well as for an account; and upon this the cause went off, but plaintiff had liberty to amend his bill. _hanbury_, . [ ] in the kings bench the sheriff returned _mand' ballivo' libertatis de d._ and it was said that he hath not such a franchise, and if it be inrolled in the chancery that a. hath _retorna brevium_, yet if it be not inrolled in the exchequer, as the statute of _w. . c. ._ and if the sheriff return other liberty he shall be punished as a disinheritor of the crown by such statute, and the justices may send _certiorari_ out of chancery to the treasurer, that he bring the roll of liberties in his hand, and shew it to the justices. _ e. . ._ _br. retorne de briefe._ . this roll of liberties is supposed to be lost; at least the clerks of the _treasurers remembrancers office_, on inquiry there, could give no account of it; any more than the bag-bearer of the _kings_ could of the "little booke," mentioned by powell to be in the _kings remembrancers office_, "intituled, _liber de ball. pro angl._ of all the bailiwicks throughout england," which he calls "an ancient booke, made _anno_ ." _per curiam_, where the bailiff makes insufficient return, the sheriff may return _quod nullum dedit responsum_, for an insufficient return is as no return; and in _præcipe_ against two, the bailiff returns the one summoned and the other not, this is no answer, and if the sheriff return this, he shall be amerceo, but by _vavisour_ if the bailiff make dubious return and the sheriff return it over he shall not be amerced, _quære_. _ h. . ._ _br. retorne de briefe._ . in _præcipe quod reddat_, to the grand capias the sheriff returned _quod mandavi ballivo, libertatis_, who returns that he hath taken the land into the hands of the king, and says nothing that he hath summoned the tenant. _martin_, another summons with _non omittas_ shall be awarded, and the sheriff shall not be amerced, for the bailiff hath not served the writ; for as much as he had in commandment to do two things, and he has done but one; and so it is as if he had said nothing either of one or the other. _babb_, a _non omittas_ shall not be awarded but where the bailiff hath not given any return, but here he hath given a return which is not sufficient, and for this he shall be amerced. _t. h. . [ .]_ _fitz. amercement._ . in trespass the sheriff returned the _capias quod mandavit ballivo libertatis, qui sic respondit quod cepit corpus_; but the bailiff does not bring in the body; but the defendant would have answered by attorney, and was not received. and the plaintiff prayed _sicut alias_ to the sheriff, and _non omittas_. and for that the writ was served he could have nothing but a writ to the sheriff to distrain the bailiff to send the body, &c. _ e. . ._ [ ] this _nihil_ is to be understood, not only where nothing at all is done, but also where the bailiff of the liberty maketh an insufficient return, for that is _nihil_ in law, and therefore a _non omittas_, &c. _ inst._ . [ ] ( .) the king may have liberties by the suppression of abbeys (_ h. ._) or by other means. and a liberty shall not be intended to be extinct, unless it be so shewn, but shall be said to be still in _esse_. _cro. jac._ . when the king grants any privileges, liberties, franchises, &c. which were privileges, liberties, or franchises in his own hands as parcel of the flowers of his crown, as _bona et catalla felonum fugitivorum utlagatorum_ &c. _bona et catalla waviata, extrahur; deodanda, wreccum maris_, &c. within such possessions, there if they come again to the king, they are merged in the crown, and he has them again in _jure coronæ_; and if the wreck, or goods waifed, estrays, &c. were appendant before to possessions, now the appendancy is extinct, and the king is seised of them in _jure coronæ_. but when a privilege, liberty, franchise or jurisdiction was at the beginning erected and created by the king, and was not any such flower before in the garland of the crown, there, by the accession of them again to the crown they are not extinct nor the appendancy of them severed from the possessions; as if a fair, market, hundred, leet, park, warren, _et similia_, are appendants to manors, or in gross, and afterwards they come back to the king, they remain as they were before, in _esse_, not merged in the crown, for they were at first created and newly erected by the king, and were not in _esse_ before, and time and usage have made them appendant. _ rep. , h._ [ ] writ issued to the sheriff to enquire of waste, who returned _quod mandavi ballivo libertatis qui mihi nullum dedit responsum_, and for this he was amerced, and _sicut alias_ awarded, because by the writ he is judge and hath power to enter the franchise. _t. h. . ( .)_ _fitz. retourne del vicount._ . but note, that sometimes the sheriff is judge, as in redisseisin, waste, and admeasurement, and the process shall be served by the baily as is said. _diversite des courts._ _court baron._ _ejectione custodiæ_ [under _w. . c. ._], at the distress with proclamation the sheriff returned _mandavi ballivo libertatis_, &c.; and by _thirning_ and _markham_, the sheriff shall be amerced, for the proclamation is to be made by the sheriff by the statute. therefore because the distress with proclamation is a thing entire, he ought to have entered the franchise and served the whole writ himself: and _rikhill_ and _tirwit e contra_ and that he did well, as in a _præcipe quod reddat_ of land, part in guildable, and part in franchise, the sheriff shall make precept for parcel, and shall serve the rest himself. _ h. . ._ _br. ejectione custodie._ . if a distress with a proclamation be granted, and the defendant hath nothing but within a franchise, the sheriff shall make proclamations in the county, and the baily of the liberty shall distrain him. _ inst._ . where the issue is of land part gildable and part in franchise, the panel shall be returned part by the sheriff and part by the bailiff of the franchise, and they may join [in the return]; and the distress [shall be] by the sheriff only if the bailiff be slack. _ h. . _, _ _. _br. retorne de briefe._ . if assise be brought of tenements in two franchises the sheriff shall write to each bailiff, and both shall serve. _abr. ass._ , _b._ assise was brought of tenements in two vills, one vill was within the franchise and the other in gildable, and the bailiff of franchise made the panel, and for this it was challenged; for those of a franchise cannot have the view by commandment of bailiff of land out of the franchise, &c. and so the court thought. _h. . e. ._ _quære_, how the writ shall be served? it seems that the writ shall abate, and that he shall be put to several writs, and namely where he may sever the thing, &c. for otherwise it will follow that the bailiff of the franchise shall never serve a writ, for a man may always put in the writ, part of the land gildable, &c. _quære_. _abr. ass._ . [ ] he is not servant to the sheriff, nor is any way subject to him (having as good authority in his office, and being as ancient an officer as himself). upon an issue the sheriff returned to the _venire facias_, and to the distress, as to jurors he returned the writ served, and as to the remainder he returned _mandavi ballivo de b. qui nullum_, &c. fortescue prayed that the sheriff should be amerced, for no writ may be returned by two ministers _s._ part by the sheriff and part by the bailiff. newton, _e contra_. and afterwards, by advice of all the justices, the sheriff was amerced. _h h. ._ _abr. ass._ . . it was assigned for error that in assize it appeared by the return of the sheriff, that he had found pledges before himself, and the bailiff of the franchise, to whom the return belonged, served all the rest of the writ; and the return adjudged good. _ h. . ._ [ ] _h._ _e._ . _b. r. rot._ . _linc._ proces _per_ attachement _per billam versus vicecomitem_ directed _al coroner_ for the disturbing a lord of a liberty. l. c. j. hales discourse concerning the courts of k. b. and c. p. (hargraves tracts, vol. i. p. .) [ ] in the _auctarium additamentorum_ to watts's edition of matthew paris is a warrant from the sheriff of essex and hertford to the bailiffs of the liberty of st. albans, reciting a writ to the sheriff to summon the knights and freeholders of the said counties, &c. to be before the kings commissioner with an express _non omittas_ in case of the default of the bailiffs of liberties; which proves that the writ for the king was not at that time ( h. .) a _non omittas_ of itself. [ ] it seems that the sheriff ought to take notice of such a liberty at his peril, without the party shewing his grant to him but merely upon his saying that he hath one, because it is a matter of record. _ roll r._ . _town of derby_ v. _foxley_. [ ] rule to shew cause why a writ of _non omittas capias ad respondendum_, should not be quashed, discharged. the objection to the writ was, that it recited a mandate to have been issued forth by the sheriff to the bailiff of a liberty without naming what liberty, but leaving a blank for the same. the court held the objection to be valid, and that the proper way to take advantage of the defect is by motion; but it appearing that bail was put in to this writ before a judge, the objection now comes too late. _barnes._ . [ ] where the sheriff serves the process once of a thing local or permanent, as in _præcipe_ of land and such like, he cannot after return _mandavi ballivo_; but _e contra_ of a thing transitory which may remove. _ h. . ._ _br. ret. de briefe._ . thus in _alias summons_ in dower the sheriff can't return _mandavi ballivo_, for he ought to have made this return upon the first writ, that so the court might have awarded a _non omittas_; but if it relates to matters transitory, then the sheriff may return _mandavi ballivo_ on the issuing of the second process, as on an _alias capias_, for the body might be in the liberty on the issuing of the second process, though it was in the guildable in the first; and therefore the return of the first process does not conclude him from returning the liberty to the second process. _gilb. hist. c. p._ . [ ] _urlin_ moved to stay proceedings, the process being served within the franchise of bury st. edmonds, and not by the proper officer, contrary to the late act of parliament. _per cur'_: the act only preserves and saves the jurisdiction of particular liberties. the person injured must bring his action, the court cannot stay proceedings. _barns._ . [ ] how far such a practice is consistent with the rights of the lord of the liberty or with the law of the land (and particularly with the act just above recited) is submitted to those whose duty it is to support both. in yorkshire it is usual for the sheriff to direct the warrant as well to the bailiff of the liberty as to one or more of his own bailiffs, who may take defendant if found _extra libertatem_. this method is unobjectionable, it prevents delay and answers all the purposes of a _non omittas_. book ii. of the bailiff of a franchise or liberty. chapter i. of his quality. the bailiff of a franchise or liberty is he who in a free place, or portion of a county, taken away from the power of the sheriff, executes the business of the sheriff. _spelman._ [sidenote: minister to the king.] the bailiff of the franchise is not minister to the sheriff but to the king. _ e. . ._ [sidenote: officer _per se_.] the bailiff of a franchise is an officer by himself, and hath not to do with the sheriff. _ h. . ._ the bailiff of a liberty is not servant to the sheriff, for the sheriff cannot make other return but according to that which the bailiff of the liberty certifies him. _keilwey_, . [sidenote: kings bailiff.] the kings bailiff of his manor is immediate officer to the king. _ h. . ._ the bailiff of a liberty is such an officer as the court will take notice of. _pasch. car. b. r. q. s. p. r._ . chapter ii. of his creation or appointment, and interest in his office [sidenote: parol, patent or inheritance.] one may be bailiff by a simple grant [i. e. by parol] or patent or inheritance. _h. h. . [ .]_ _fitz. monstrauns de faitz, &c._ . [sidenote: bailiff of the king.] a man may be bailiff of the king without patent or writing. _ h. . ._ _br. bailie. & v. & ._ a man may be made bailiff to the king by naked matter of fact as well as to a common person. _keilwey_, , b. if the king make one his bailiff of his manor, to which manor waif, stray and leet are appendant, by patent, in this case the bailiff shall have the waif, stray and leet, because he occupies in right of the king, and he shall account to the king; and therefore this is an advantage of the king, for which reason the bailiff shall have all. _ h. . ._ [sidenote: corporation.] corporation having return of writs may make bailiff (to execute them) without writing, by parol. _moor_, . [sidenote: bailiff for life.] but a man may not make bailiff or steward for life, or in fee, without deed. _ h. . ._ [sidenote: discharge by purchaser.] bailiff of a manor[ ] for life, with fee or other profits for the execution of his office, cannot be discharged by a purchaser of the manor (_contra_ if no fee or profit). _cro. eliz._ . [ ] whatever is said of the bailiff of a manor is in general applicable to the bailiff of a liberty, every liberty being likewise a manor; though every manor be not a liberty. chapter iii. of his qualification. [sidenote: sufficient land.] by _ e. . c. ._, no sheriff, bailiff of hundred, wapentake, or franchise, shall be henceforth if they have not land sufficient in the places where they are ministers whereof to answer the king and his people, in case any man will complain against them. re-enacted by _ e. . c. ._ [sidenote: oaths.] by _ eliz. c. ._ § ., all persons that shall be admitted to or take upon them the executing of the office of an undersheriff, before he intermeddle with the use or exercise of the said office, shall receive and take a corporal oath upon the holy evangelists, before the justices of assise, or one of them, of the same circuit wherein that county is whereof he shall be undersheriff, or before the _custos rotulorum_, or two justices of the peace whereof one to be of the _quorum_ of the said county, for and concerning the supremacy, in such manner and form as that oath is expressed and declared in one act of parliament made and ordained in the first year of the reign of our sovereign lady the queen's majesty[ ], together with which oath he shall in like sort, before the same person or persons, receive and take another corporal oath as followeth, (that is to say) i _a. b._ shall not use or exercise the office of undersheriff corruptly during the time that i shall remain therein, neither shall or will accept, receive or take, by any colour, means or device whatsoever, or consent to the taking any manner of fee or reward of any person or persons for the impanelling or returning of any inquest, jury or _tales_, in any court of record for the queen, or betwixt party and party, above two shillings or the value thereof, or such fees as are allowed and appointed for the same by the laws and statutes of this realm, but will, according to my power, truly and indifferently, with convenient speed, impanel all jurors, and return all such writ or writs touching the same as shall appertain to be done by my duty or office, during the time that i shall remain in the said office. so help me god. by § ., every bailiff of franchises, deputy and clerk of every sheriff and undersheriff, and every other person and persons which shall have authority, or take upon him to impanel or return any inquest, jury or _tales_, or to intermeddle with execution of process in any court of record, shall before he or they intermeddle with any further execution thereof, receive and take the oaths aforesaid corporally before the person or persons appointed by this act to minister the same, or before the head officer of the place (if it be a town corporate), changing only the words (the office of the undersheriff) contained in the oath expressed in this act, to such words as are convenient for the deputation, office, or place in which the party which taketh the oath is to be exercised in: and if any the said persons limited to take the oath aforesaid, do take upon him to impanel or return any inquest, jury or _tales_, or to intermeddle with the execution of process not having before taken the oaths aforesaid, every [such] person shall lose and forfeit the sum of forty pounds of current english money, the one moiety to be to the use of our sovereign lady the queen, the other to him or them that will sue for the same. [ ] by _ w. and m. stat. . c. ._, the oath of supremacy is taken away, and certain other oaths substituted in lieu thereof. chapter iv. of his power and capacity; _i. e._ what he may or may not do or be. [sidenote: steward.] a bailiff may be steward of the same manor; for they may well stand both together. (_ h. ._ in _bro._) _cro. jac._ . [sidenote: deputy.] bailiff of a liberty may well have a deputy. _cro. jac._ .[ ] [sidenote: lease of land.] bailiff of lord may lease the land, and good, at will, for he is accountable, and debt lies for the lord. _ e. . ._ _br. bailie_, . _lease_, . [sidenote: rent.] but if he reserve no rent the lease is void. _ roll. rep._ . [sidenote: lease of piscary.] bailiff of a manor may lease the piscary for years. _ h. b._ _ roll abr._ . [sidenote: lease of manor.] bailiff cannot make lease of the manor, nor of parcel of the manor, without especial command for that purpose. _m. e. . ._ _fitz. bayllyff._ . _br. bailie_, . [sidenote: lease of land.] a bailiff cannot by any usage make lease of the land of his master [for] an estate of freehold. _ ass._ . _ roll. abr._ . [sidenote: payments.] bailiff of a manor may pay rents issuing out of the manor, and shall have allowance, but _e contra_ where he pays debts of the lord due by contract or obligation, for this is out of his power. _ h. . ._ _br. bailie._ . [sidenote: cutting trees, &c.] bailiff may justify cutting the great trees for repair of a house, or the covering of it as it was before, but not with more costly covering, and the same law is of amending pale, hedge, or such like, without command of his lord; but he cannot cover with tile what was before thatch, nor make new house, nor make pale where hedge was before, unless by special commandment of his master. _ h. . ._ _br. baillie_, . & _vide plenius trespas._ . [sidenote: licence to walk over ground.] a bailiff may give licence to another to walk over the ground, for this is a trespass to the possession only, and the bailiff hath the disposition of the profits of the possession. (_dub._) _ roll. abr._ . [sidenote: damage feasant.] a bailiff of a manor may himself or command another to take beasts _damage feasant_ on the land, for he hath the care of all things within the manor. _ roll. abr._ . [sidenote: general acts.] he may do any thing for his masters benefit, but not to his prejudice without his assent. _cro. jac._ . and therefore he cannot give seisin of rent, nor exchange the lords land. (_ e. . _) _cro. jac._ . [sidenote: distress for amerciament.] bailiff without special warrant from the steward cannot distrain for amerciament in a leet. _moore_, . . _popham_ said, that defendant as bailiff of the manor cannot distrain for amerciament by reason of his office without an especial warrant from the steward or lord, no more than a sheriff may levy amerciaments of _b. r._ without warrant. but _gawdy_, _e contra_, that he may distrain for lawful amerciaments by reason of the office. _cro. eliz._ . bailiff cannot distrain _ex officio_ for amerciaments. _cro. eliz._ . bailiff cannot distrain for amerciament by command of the lord of the manor, nor otherwise than by virtue of a precept directed to him by the steward of the court. _carth._ .[ ] [sidenote: arrest.] bailiff of a franchise which hath _retorna brevium_ cannot arrest a man without warrant to him made by the sheriff upon the writ in his hands. _keilwey_, _b._[ ] [sidenote: delivery of prisoner.] bailiff of a liberty may deliver his prisoner to the sheriff without more circumstance; as he may be discharged by his parol from keeping him any longer. _cro. car._ .[ ] [sidenote: process.] bailiff of a franchise cannot execute a process within his franchise, but by the precept of the sheriff. _ e. . ._ _coron._ . _ hale p. c._ .[ ] [sidenote: writ of inquiry.] case, judgement by _nil dicit_, writ of inquiry of damages to the sheriff of norfolk, who returns a _mandavi ballivo_, and sets down an inquisition before bailiff and l. damages. upon writ of error, agreed by all the judges that the return was insufficient, for it was apparently untrue, and against law, because the warrant was directed to the sheriff himself to be executed in any part of the shire, and no venue contained in this inquest of office, as there is in other writs which intitles the bailiffs of liberties. but yet the court would not reverse the judgement, because there were divers of the like both in the k. b. and c. p. especially in suffolk and norfolk in later times. _hobart._ . [sidenote: _elegit._] bailiff of a liberty may make an inquisition and extent upon an _elegit_ by warrant from the sheriff, and shall deliver the moiety, and not the jury. _cro. car._ . [sidenote: bail-bond.] bailiff of a franchise [under _ h. . c. ._] has power to take a bail bond, and must take it to himself, and by the name of his office. _comyns._ . bailiff of a franchise may take bond in sheriffs name. _ keble_, . . . [sidenote: waiver of franchise.] baily of hundred[ ] may waive his franchise and arrest as sheriffs baily[ ]. _ keble_, . [sidenote: capias against two.] capias or distress against two, sheriff may serve as to one and bailiff as to the other. _ h. . ._ where process issues, and the sheriff or bailiff is plaintiff, yet he may serve the process; and the sheriff is not bound to take conusance if the bailiff be plaintiff or not, for it may be another of the same name. _ h. . ._ _br. retorne de briefe._ .[ ] by _ e. . c. ._ lords of franchises, and their bailiffs in the same, shall have power to execute this act; which prohibits all men, except the kings servants in his presence, and his ministers in executing his precepts, &c. from coming before the kings justices, or other the kings ministers doing their office, with force and arms, or bringing force in affray of the peace, or going or riding armed by night or by day in fairs, markets, or in the presence of the justices or other ministers, or in any part elsewhere, upon pain to forfeit their armour to the king, and their bodies to prison to the kings pleasure. [sidenote: attorney.] by _ h. . c. ._, no steward, bailiff or minister of lords of franchises which have return of writ shall be attorney in any plea within the franchise or bailiwick whereof he is such officer or minister. [ ] and such deputy it should seem ought to be made by writing (_ rep._ , b.). though it is said _ h. . ._ that the sheriff or a steward may make deputy without deed. [ ] it is an old rule of the duchy court that the bailiffs of the liberties of the duchy may distrain for fines and amerciaments for the king, and keep the same fifteen days, and if the party distrained refuse to pay his fine or amerciament, then the bailiff may sell the same, unless the party distrained will enter into bond to pay the said fine or amerciament at a day prefixed in the duchy court, or else shew good cause; but in this case there is no replevy to be granted against the king. and all this it seemeth the bailiff shall do _ex officio_. the fines and amerciaments within the liberties of the duchy are, however, usually levyed by writ of _levari facias & capias_ out of the duchy court. and, by keble, precept to bailiff by nude parol is as effectual in court _baron_ as by writing, because the trial shall be all _per pais_ and not by the record: for all is but matter _in fait_. _quod fuit concessum._ _ h. . ._ [ ] _per_ levinz serjeant. in fact the sheriffs make no warrants to the bailiffs of liberties, but they only send the writ to them; and they execute it upon some general warrant, which they have from the sheriffs to execute all writs according to the agreement between the sheriffs and bailiffs. but (_per curiam_) this general warrant serves for a warrant to every particular case, for there must be a warrant in writing, because a command by parol to the bailiff of a liberty is not sufficient, _ l. ray._ . _hammon_ v. _jermyn_. _n. b._ this assertion of the learned serjeant, though founded it is possible on some instance within his knowledge, can never be understood as true with respect to general practice. [ ] bailiff of a liberty arrested the party, and delivered him to the sheriffs deputy, from whom he was rescued, and judgement for the plaintiff. _burgh_ v. _appleton, sheriff of essex_, cited _cro. jac._ . see the pleadings _declarations in the upper bench_, . see also c. vi, (pl. .) c. ix (fo. .) but in _boothman_ v. _earl of surry_, _t. g. . b. r._ defendant being bailiff of the liberty of hallamshire, in the county of york took his prisoner to york jail and there delivered him into the custody of the sheriff, and upon action of debt brought against him for an escape, judgement for the plaintiff. _n. b._ neither of the cases in croke was cited by defendants council. [ ] in the _register_ are divers examples of original writs directed to bailiffs of liberties: as for instance; writs of right patent, writs _de warrantia diei_, writs of trespass, writs of _supersedens_, writs _de cartis reddendis_, writs _de attornato pro custode_, writs _de attornato pro secta facienda_, writs _de statuto_: the duchy court constantly issues writs of _levari facias_ to bailiffs of the duchy liberties; in all these cases the bailiff is immediate officer to the court, and hath nothing to do with the sheriff, contrary to the argument in _skin._ , and _vide_ _f. n. b._ _passim_. [ ] this must be understood of a hundred in fee with _retorna brevium_ in the hands of a private person, of which there are several instances; every other bailiff of hundred being a mere servant to the sheriff. and note, that, where a man is _bailiff of fee_ in a county (_i. e._ a bailiff itinerant, who hath the execution only of writs within the county or hundred in fee) the sheriff shall not write to him as to _bailiff of franchise_, and for his act _non omittas_ shall not issue, nor shall he make mention of him in his return. _ ass._ p. . _br. retorne de briefe_, . [ ] the sheriff of a county made a warrant _ballivis suis_ to arrest the body of such a man, and the bailiffs of the liberty return a rescous; and exception was taken to it, because the warrant was _ballivis suis_, and the return was made by those who were not his bailiffs; and it was adjudged good, for the liberty might be within his bailiwick, and so are all the precedents. _march._ . [ ] but the defendant himself shall never take advantage of a liberty, as if the bailiff of a liberty be defendant in any action, and process of _cap'_ or _feri fiac'_ comes to the sheriff against him, the sheriff shall execute the process against him; for a liberty is always for the benefit of a stranger to the action. _ rep._ . chapter v. of his duty _i. e._ what he must or shall do or not do. [sidenote: return of precept.] baily of a liberty must return his precept [to the sheriff]. _ keble_, . where the sheriff returned capias _quod mandavi ballivo de d. qui respondit quod cepit corpus, &c._ and hath not the body at the day, the bailiff is bound to bring in the body, and not the sheriff, by _hill_; but by _hank_ he ought to deliver it to the sheriff, and he to bring it in as officer immediate, as upon _fieri facias_ the sheriff commands the bailiff to levy the money, he delivers it to the sheriff, so that the sheriff may have it at the day: _contra_ _thirn_, and agreed with _hill_. _ h. . _ _br. retorne de briefe_, [ ]. [sidenote: bail.] by _w. . ( e. .) c. ._, such as be indicted of larceny, by inquests taken before sheriffs or bailiffs by their office, or of light suspicion, or for petty larceny which amounteth not above the value of d. if they be not guilty of other larceny before that time, or guilty of the receit of felons or of commandment or of force, or of aid of felony done, or guilty of some other trespass for which a man ought not to lose life or member, and a man appealed by the prover after the death of the prover, if they be not known common thieves, shall be let out by sufficient surety, whereof the sheriff will be answerable. and if sheriffs or others let go upon surety any that is not replevisable, if he be sheriff, constable, or other bailiff of fee, and who hath keeping of prisons, and thereof be attainted, he shall lose his fee and bailiwick for ever. and if undersheriff, &c. do it contrary to the will of his lord, he shall be imprisoned three years, and be fined at the kings pleasure. and if any withhold prisoners replevisable after the prisoner hath offered sufficient surety he shall be in the grievous mercy of the king; and if he take reward for delivering him he shall render double to the prisoner, and moreover shall be in the grievous mercy of the king. by _ h. . c. ._ sheriffs, undersheriffs, bailiffs of franchises, &c. shall let out of prison all manner of persons by them arrested or being in their custody by force of any writ, bill or warrant in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient persons, having sufficient within the counties where such persons be so let to bail or mainprise, to keep their days in such place as the said writs, bills or warrants shall require: such person or persons which shall be in their ward by condemnation, execution, capias _utlagat'_ or _excommunicatum_, surety of the peace, and all such persons which shall be committed to ward by special commandment of any justice, and vagabonds refusing to serve according to the form of the statute of labourers, only except. and that no sheriff, nor any of the officers or ministers aforesaid shall take or cause to be taken, or make any obligation for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor for any person which shall be in their ward by the course of the law, but by the name of their office, and upon condition written, that the said prisoners shall appear at the day contained in the said writ, bill or warrant, and in such places as the said writ, bill or warrant shall require. and if any of the said sheriffs, or other officers or ministers aforesaid, take any obligation in other form by colour of their offices, that it shall be void; and that he shall take no more for the making of any such obligation but d. (penalty, treble damages to the party grieved and l. half to the king and half to the party suing.) and justices of assises, of the bench and of the peace, to enquire, hear and determine, &c. by _ c. . st. . c. ._ § ., no person or persons who shall happen to be arrested by any sheriff, undersheriff, coroner, steward, or bailiff of any franchise or liberty, &c. by force or colour of any writ, bill or process issuing out of his majestys courts of the kings bench and common pleas, or either of them, in which said writ, bill or process, the certainty and true cause of action is not expressed particularly, and for which the defendant or defendants in such writ, bill or process named, is and are bailable by the statute in that behalf made in the three and twentieth year of the reign of the late king henry the sixth, shall be forced or compelled to give security, or to enter into bond with sureties, for the appearances of such person or persons so arrested, at the day and place in the said writ, bill or process specifyed or contained in any penalty or sum or sums of money exceeding the sum of forty pounds to be conditioned for such appearances; and all sheriffs and other officers and ministers aforesaid, shall let to bail and deliver out of prison, and from their and every of their custodies respectively, all and every person and persons whatsoever, by them or any of them arrested upon any such writ, bill or process wherein the certainty and true cause of action is not particularly expressed, upon security in the sum of forty pounds and no more, given for appearance of such person or persons so arrested unto the said sheriff or officer aforesaid, according to the said statute in the said three and twentieth year of the reign of the said late king henry the sixth in that behalf made and provided. [sidenote: treatment of person arrested.] by _ g. . c. ._ § ., no sheriff, undersheriff, bailiff, serjeant at mace, or other officer or minister whatsoever, shall convey or carry, or cause to be conveyed or carried any person or persons by him or them arrested, or being in his or their custody by virtue or colour of any action, writ, process or attachment to any tavern, alehouse or other public victualling or drinking house, or to the private house of any such officer or minister, or of any tenant or relation of his, without the free and voluntary consent of the person or persons so arrested or in custody; nor charge any such person or persons with any sum of money for any wine, beer, ale, victuals, tobacco or any other liquor or things whatsoever, save what he, she or they shall call for, of his, her or their own free accord; nor shall cause or procure him, her or them to call or pay for any such liquor or things, except what he, she or they shall particularly and freely ask for; nor shall demand, take or receive, or cause to be demanded, taken or received directly or indirectly, any other or greater sum or sums of money than is or shall be by law allowed to be taken or demanded for any arrest or taking, or for detaining or waiting till the person or persons so arrested or in custody shall have given an appearance or bail, as the case shall require, or agreed with the person or persons at whose suit or prosecution he, she or they shall be taken or arrested, or until he, she or they shall be sent to the proper gaol belonging to the county, riding, division, city, town or place where such arrest or taking shall be; nor shall exact or take any reward, gratuity or money for keeping the person or persons so arrested or in custody out of the gaol or prison; nor shall carry any such person to any gaol or prison within four and twenty hours from the time of such arrest, unless such person or persons so arrested shall refuse to be carried to some safe and convenient dwelling-house of his, her or their own nomination or appointment within a city, borough, corporation or market-town, in case such person or persons shall be there arrested; or within three miles from the place where such arrest shall be made, if the same shall be not the house of the person arrested, and be within the county, riding, division or liberty in which the person under arrest was arrested; and then and in any such case, it shall be lawful to and for any such sheriff or other officer or minister to convey or carry the person or persons so arrested and refusing to be carried to such safe and convenient dwelling-house as aforesaid, to such gaol or prison as he, she or they may be sent to by virtue of the action, writ or process against him, her or them. [sidenote: expences of persons arrested.] by § ., no sheriff, undersheriff, bailiff, serjeant at mace, or other officer or person, shall at any time or times hereafter take or receive any other or greater sum or sums for one or more nights lodging, or for a days diet, or other expences of any person or persons under arrest, on any writ, action, attachment, or process other than what shall be allowed as reasonable in such cases by some order or orders made by the justices of the peace at some general or quarter-sessions which shall be held for the county, riding, division, city, town or place where such arrest or taking shall be. [sidenote: printed copy of clauses.] by § ., every sheriff, undersheriff, and bailiff of any liberty, &c. shall deliver a printed copy of the several clauses contained in this act relating to bailiffs, serjeants and other officers and persons who shall be employed under them respectively to execute any writ, process or attachment, or who shall arrest any person on any action which shall be entered or otherwise within their respective sheriffwicks or jurisdictions, to every such bailiff, serjeant, officer, and other person, and shall make it part of the condition of every security or bond which shall be given or made to any such sheriff or undersheriff, or bailiff of any liberty, by any bailiff, serjeant at mace, or other officer or person who shall be employed or intrusted to execute any such writ or process as aforesaid under him, them or any of them, that every such bailiff, serjeant at mace, or officer and other person respectively, shall and will shew and deliver a copy of the said clauses to every person he shall arrest by virtue of any process, action, writ or attachment, or under any warrant made out thereon, and carry or go with to any public or other house where any liquor shall be sold, and also shall and will permit every such person who shall be so arrested, or any friend of him or her to read over the same clauses, before any liquor, meat or victuals shall be at any such public or other house called for or brought to any such person who shall be so under arrest there; and in case any bailiff, serjeant at mace, or other officer or person shall in any respect offend in the premises, every such offence besides the breach of the condition of every such security bond, shall be accounted and deemed a misdemeanor in the execution of the process or action on which any such person was arrested, and shall be punishable as such by virtue of this act. [sidenote: privilege of persons arrested in sending for necessaries.] by § ., every sheriff, undersheriff, bailiff of any liberty, gaoler and keeper of any prison or gaol, and other person and persons, to whose custody or keeping any one shall be arrested, taken, committed or charged in execution, by virtue of any writ, process, or action, or attachment, shall permit and suffer every such person and persons, during his, her and their respective continuance under arrest or in custody or in execution for any debt, damages, costs or contempt, at his, her and their free will and pleasure, to send for or have brought to him, her or them, at seasonable times in the day-time, any beer, ale, victuals or other necessary food, from what place he, she or they shall think fit, or can have the same; and also to have and use such bedding, linen or other necessary things, as he, she or they shall have occasion for and think fit, or shall be supplied with during his, her or their continuance under any such arrest or commitment, without purloining or detaining the same, or any part thereof, or inforcing or requiring him, her or them to pay for the having or using thereof, or putting any manner of restraint or difficulty upon him, her or them, in the using thereof, or relating thereto; and no such prisoner or prisoners shall pay any thing in respect thereof to any such sheriff, undersheriff, bailiff of any liberty, gaoler, keeper, or other person as aforesaid. [sidenote: certificate of felons.] by _ h. . c. ._ every sheriff, bailiff of franchise, and every other person having authority or power of keeping of gaol or of prisoners for felony, shall certify the names of every such prisoner in their keeping, and of every prisoner to them committed, &c. at the next general gaol-delivery in every county or franchise where any such gaol or gaols have been or shall be, there to be kalendered before the justices of the deliverance of the same gaol, upon pain to forfeit for every default an hundred shillings. [sidenote: felons goods.] by _ r. . c. ._ no sheriff, &c. nor bailiff of franchise shall take or seize the goods of any person arrested or imprisoned for suspicion of felony before that the same person be convicted or attainted of such felony according to law, or else the same goods otherwise lawfully forfeited; upon pain to forfeit double the value of the goods so taken, to him that is so hurt in that behalf. [sidenote: return of jurors.] by _w. . ( e. .) c. ._ in one assise no more shall be summoned than four and twenty; and old men, above three score and ten years, being continually sick, or being diseased at the time of the summons, or not dwelling in that county, shall not be put in juries or petty assises. nor shall any be put in assises or juries though they ought to be taken in their own county who have less tenement than to the value of twenty shillings by the year. and if such assises and juries ought to be taken out of the county, none shall be put in them who hath less tenement than to the value of forty shillings by the year, those except who are witnesses in charters or other writings whose presence is necessary, so long as they are able to travel. nor ought this statute to be extended to great assises in which sometimes it behoveth to put knights not resident in the county by reason of the scarcity of knights, so long as they have tenement in the county. by _ e. . st. ._ no sheriff, _&c._ stewards or bailiffs of liberties shall put in any recognisances of juries, inquests, assises, and attaints, out of their proper counties to be made, any of their bailiwicks,[ ] unless he have lands or tenements to the value of a hundred shillings by the year at least. by the _articuli super chartas_, _ e. . c. ._ no sheriff nor bailiff shall put in inquests nor in juries more people or others, or in other manner than is ordained by statute and shall put in such inquests and juries the most near, most sufficient and least suspicious. by _ e. . c. ._ as to the return or answer of bailiffs of franchises they shall make their answer to the sheriffs six days before their session upon the pain of l. and in all manner of panels arrayed by sheriffs, or bailiffs within franchise, shall be put the most sufficient and worthy of faith and not suspected who have the best knowledge of the truth and [are] the most near. by _ h. . c. ._ no indictment shall be made but by inquest of the kings lawful liege people returned by the sheriffs or bailiffs of franchises, without any denomination to the said sheriffs or bailiffs of franchises before made by any person of the names which by him should be impanelled, except it be by the officers of the said sheriffs or bailiffs sworn and known to make the same.[ ] by _ h. . st. . c. ._ bailiffs of franchises shall cause to be impanelled sufficient persons [who have lands, _&c._ to the 'value' of l. a year, to inquire of riots before the kings commissioners] upon pain to lose to the king l. in case such sufficient persons may be found within the same franchises. by _ h. . st. . c. ._ no person shall be admitted to pass in any inquest upon trial of the death of a man, nor in any inquest betwixt party and party in plea real nor in plea personal, whereof the debt or the damage declared amounts to marks, if the same person have not lands or tenements of the yearly value of s. above the reprises thereof. by _ h. . c. ._ bailiffs of franchises shall make their returns or answer to the sheriffs in special assizes [_i. e._ as to panels between demandant and tenant] eight days before the session, upon pain of l. by _ h. . c. ._ when the justices or justice [of the peace] make enquiries [of forcible entries], they shall make their warrants and precepts to the sheriff of the county, commanding him on the kings behalf to cause to come before them sufficient and indifferent persons dwelling about the lands entered, to enquire of such entries, of whom every one who shall be impanelled to enquire in this behalf shall have land or tenement of the annual value of s. at least above reprises. and that the sheriff return issues upon every of them at the day of the first precept returnable s. and at the second day s. and at the third time s. and at every day after double. and if any sheriff or bailiff within a franchise having return of the kings writ be slack and make not execution duly of the said precepts to him directed to make such enquiries, he shall forfeit to the king l. for every default and moreover shall make fine and ransom to the king. by _ h. . c. ._ no sheriff, bailiff of franchise, or coroner in actions or writs of attaint of plea of land of the yearly value of s. or more, or action of detinue of deeds concerning lands or tenements of like value or more, or personal, whereof the judgement of the recovery shall extend to the sum of l. shall return or impanel in any inquisition or inquest, any persons but such as be inhabiting within his bailiwick, which have estate of fee simple, fee tail or freehold in lands and tenements of the yearly value of l. or more, nor shall return in the kings court less issues in the said action of attaint than s. at the first writ of distress, and s. at the second writ of distress, and the double of every other writ of distress against the persons impaneled and returned to be sworn in the same actions (upon pain of l. to the king and l. to the plaintiffs. remedy if there be not sufficient men in the franchise who have lands of the yearly value of l.) by _ h. . c. ._ sheriffs, undersheriffs, bailiffs of franchises, nor any other bailiff, shall return upon any writ or precept to them directed for returning any inquests or any panels thereupon to be made, any bailiffs, officers, or servants to any of the officers aforesaid, in any panel by them to be made; nor shall take any thing by colour of his office for the making of any return or panel, and for the copy of any panel but d. by _ eliz. c. ._ § . in all cases where any jurors to be returned for trial of any issue joined in any of the queens courts of kings bench, common pleas and the exchequer, or before justices of assise ought to have estate of freehold in lands, &c. of the clear yearly value of s. the jurors shall every of them have estate of freehold in lands, _&c._ to the clear yearly value of l. at the least, (penalty on sheriff, _&c._ for returning that cannot dispend so much, l.) by § . upon every first writ of _habeas corpora_ or _distringas_ with a _nisi prius_ delivered of record to the sheriff or other minister or ministers to whom the making of the return shall appertain, [such sheriff, _&c._] shall return in issues upon every person impanelled and returned upon any such writ at the least s. and at the second writ s. at the least, and at the third writ s. and upon every writ further double the issues last afore specified, until a full jury be sworn, or the process otherwise determined, upon pain of l. by _ eliz. c. ._ no bailiff of any liberty, nor any his or their deputy or deputies, shall of himself return any juror, or deliver to the sheriff, his undersheriff, deputy or deputies, the names of any persons to be returned upon any panel or jury, without the true addition certified under his or their hands to the sheriff, of the place of dwelling or abode of every person so to be returned at the time of the said return, or within one year next before the said return, or some other addition by which the party returned may be known. by _ & w. & m. c. ._ § . all jurors (other than strangers upon trials _per medietatem linguæ_) who are to be returned for trials of issues joined in any of the courts of kings bench, common pleas, or exchequer, or before justices of assize, or _nisi prius_, _oyer and terminer_, gaol delivery, or general quarter-sessions of the peace in any county of the realm, shall have in their own names, or in trust for them within the same county, ten pounds by the year at least above reprizes, of freehold or copyhold lands or tenements, or of lands and tenements of ancient demesne, or in rents, in feesimple, feetail, or for the life of themselves or some other person; and that upon every writ of _venire facias_ the sheriff, coroner, and other ministers, unto whom the making of the panel shall appertain, shall not return in any such panel any person unless he then have l. by the year at least as aforesaid, in the same county where the issue is to be tried; upon pain to forfeit for every person, &c. the sum of l. by § . no sheriff or bailiff of any liberty or franchise, or any of their ministers, shall return any such person or persons as aforesaid, to have been summoned by them, unless such person and persons shall have been duly summoned, by the space of six days at least before the day on which they ought to make their appearance; nor shall directly or indirectly take money or other reward to excuse the appearance, of any juror, by any of them to be summoned or returned, upon pain to forfeit for every such offence the sum of l. [continued by _ & w. . c. ._ _ g. . c. ._ § . exp.] by _ & w. . c. ._ § . all constables, tything-men and headboroughs of towns in each county, or their deputies, shall yearly at the general quarter-sessions of the peace to be holden for each county, riding or division, in the week after the feast of st. michael the arch-angel, upon the first day of the said sessions, or upon the first day that the said sessions shall be held by adjournment at any other particular division or place, return and give a true list in writing of the names and places of abode of all persons within the respective places for which they serve, qualifyed to serve upon juries, with their titles and additions, between the age of one and twenty and the age of years, to the justices of the peace in open court; which said justices, or any two of them, at the said sessions, shall cause to be delivered a duplicate of the aforesaid returned list, by the clerks of the peace of every county or riding, to the sheriffs or their deputies, on or before the first day of january next following, and cause the said lists to be fairly entered into a book, by the clerk of the peace, to be by him provided and kept for that purpose, amongst the records of the said court of sessions; and no sheriff shall impanel or return any person or persons to try any of the issues joined in any of the courts [of k. b. c. p. or e.] or to be or serve in any jury at the assizes, sessions of _oyer_ and _terminer_, gaol delivery, or sessions of the peace that shall not be named or mentioned in the said list. by § . every summons of any person qualifyed to any of the aforesaid services shall be made by the sheriff, his officer or lawful deputy, six days before at the least, shewing to every person so summoned the warrant under the seal of the office wherein they are nominated and appointed to serve; and in case any juror so to be summoned be absent from the usual place of his habitation at the time of such summons, notice of such summons shall be given by leaving a note in writing, under the hand of such officer, containing the contents thereof, at the dwelling-house of such juror, with some person there inhabiting the same[ ]. [made perpetual by _ g. . c. ._] by _ ann. c. ._ § . every _venire facias_ for the trial of any issue in any action or suit in any of her majestys courts of record at westminster shall be awarded of the body of the proper county where such issue is triable. but by § . nothing in this act contained shall extend to any writ, declaration or suit of appeal of felony or murder, or to any indictment or presentment of treason, felony or murder or other matter, or to any process upon any of them or to any writ, bill, action or information upon any penal statute.[ ] [sidenote: view.] by § . in any actions brought in any of her majestys courts of record at westminster, where it shall appear to the court that it will be proper and necessary that the jurors who are to try the issues in any such actions, should have the view of the messuages, lands or place in question, in order to their better understanding the evidence that will be given upon the trials of such issues, in every such case the respective courts in which such actions shall be depending, may order special writs of _distringas_ or _habeas corpora_ to issue, by which the sheriff or such other officer to whom the said writs shall be directed, shall be commanded to have six out of the first twelve of the jurors named in such writs, or some greater number of them, at the place in question some convenient time before the trial, who then and there shall have the matters in question shewn to them by two persons in the said writs named to be appointed by the court; and the said sheriff or other officer who is to execute the said writs shall by a special retorn upon the same, certify that the view hath been had according to the command of the said writs.[ ] by _ g. . c. ._ § . duplicates of the lists [made according to _ & w. . c. ._ _ & ann. c. ._ and this act] when delivered in at the quarter sessions of the peace, and entered in 'the' book to be kept by the clerk of the peace for that purpose, shall, during the continuance of such quarter-sessions, or within ten days after, be delivered or transmitted by the clerk of the peace to the sheriff of each county, or his undersheriff, in order for his returning of juries out of the said lists; and such sheriff or undersheriff shall immediately take care that the names of the persons contained in such duplicates shall be faithfully entered alphabetically, with their additions and places of abode, in some book or books to be kept by him or them for that purpose. by § . no persons shall be returned as jurors to serve on trials at any assizes or _nisi prius_, or at the great sessions, or at the sessions for the counties palatine, who have served within the space of one year before in the county of rutland, or four years in the county of york, or of two years before in any other county, not being a county of a city or town[ ]. by § . the sheriff, undersheriff, or other officer to whom the return of juries shall belong, shall from time to time enter or register in a book to be kept for that purpose, the names of such persons as shall be summoned, and shall serve as jurors on trials at any assizes or _nisi prius_; or in the said courts of great sessions or sessions for the counties palatine, together with their additions and places of abode alphabetically, and also the times of their services; and every person so summoned, and attending or serving as aforesaid, shall (upon application by him made to such sheriff, undersheriff or other officer) have a certificate testifying such his attendance or service done, which certificate the said sheriff, _&c._ is to give without fee or reward; and the said book shall be transmitted by such sheriff, _&c._ to his successor from time to time. by § . no sheriff, undersheriff, bailiff or other officer or person whatsoever shall directly or indirectly take or receive any money or other reward to excuse any person from serving or being summoned to serve on juries; and no bailiff or other officer appointed by any sheriff or undersheriff to summon juries, shall summon any person to serve thereon other than such whose name is specifyed in a mandate signed by such sheriff or undersheriff, and directed to such bailiff or other officer. by § . every sheriff or other officer to whom the return of the _venire facias juratores_, or other process for the trial of causes before justices of assize or _nisi prius_ in any county in england shall belong, shall, upon his return of every such writ of _venire facias_ (unless in causes to be tried at bar, or in case where a special jury shall be struck by order or rule of court) annex a panel to the said writ, containing the christian [names] and surnames, additions and places of abode of a competent number of jurors named in such lists as qualified to serve on juries, the names of the same persons to be inserted in the panel annexed to every _venire facias_, for the trial of all issues at the same assizes in each county; which number of jurors shall not be less than in any county, nor more than , without direction of the judges appointed to go the circuit and sit as judges of assize or _nisi prius_ in such county, or one of them. by § . any person or persons having an estate in possession in land, in their own right, of the yearly value of l. or upwards, over and above the reserved rent payable thereout, such lands being held by lease or leases for the absolute term of years or more, or for years or any other term determinable on one or more life or lives, the names of such persons shall be inserted in the respective lists as aforesaid, in order to their being inserted in the freeholders book[ ]. by § . the sheriffs or other officers to whom the returning of juries doth or shall belong, for any county, city or place, shall not impanel or return any person or persons to serve on any jury for the trial of any capital offence, who at the time of such return would not be qualifyed in such county, city or place, to serve as jurors in civil causes for that purpose. [made perpetual by _ g. . c. ._ § .] [sidenote: distress.] by _ h. . st. ._ (_de districtione scaccarii_) when a sheriff or other the kings bailiff doth take the beasts of another for the kings debt, or any other cause, they to whom the beasts belong may feed them without disturbance so long as they be impounded, without giving any thing for their keeping. and the beasts, nor no other distress taken for the kings debt, nor for any other cause be given, nor sold within fifteen days after the taking. and if any bring the tally of a payment made in the exchequer the distress shall cease. and if he bring the tally of any sheriff or bailiff of payment made to him of the thing demanded, and will find pledges to be at the exchequer at the next account, to do what shall be right, then the distress shall cease. but no man of religion nor other shall be distrained by his beasts that gain his land nor by his sheep, for the kings debt or the debt of another, nor for any other cause, by the kings bailiff nor by any other man, but until they can find another distress or other chattels sufficient whereof they may levy the debt or that is sufficient for the demand, except impounding of beasts when a man finds them doing damage according to the law and usage of the land. and that the distresses be reasonable after the amount of the debt or demand according to reason and not outrageous. howbeit all sheriffs and bailiffs who have received the kings debts of the summons of the exchequer, and have not acquitted the debtors thereof at their next account, shall be punished according to the statutes lately made. [sidenote: replevin.] by _stat. de marleberge_ _ h. . c. ._[ ] if the beasts of any man be taken and wrongfully withholden, the sheriff after complaint made to him thereof, may deliver them without let or gainsaying of him that took the said beasts, if they were taken out of liberties. and if they were taken within liberties and the bailiffs of the liberty will not deliver them, then the sheriff for default of those bailiffs shall cause them to be delivered. by _w. . c. ._ if any take the beasts of others and cause them to be driven to a castle or fortress[ ], and there within the close of such castle or fortress detain them against gage and pledge, after the beasts shall be solemnly demanded by the sheriff or by the kings bailiff, at the suit of the plaintiff, the sheriff or bailiff taking with him the power of his county or of his bailiwick[ ] shall assay to make the replevin of the beasts from him that took them or from his lord, or from others of the men of his lord whatsoever they be, found in the place where the beasts were chased; and if any deforce him of the deliverance of the beasts, or that no man be found for the lord, or for him that took them, to answer and make the deliverance after the lord or taker shall be admonished thereof by the sheriff or bailiff, if he be in the country or near or there whereas he may be conveniently warned by the taker or any other of his, to make deliverance, if he were out of the country when the taking was, and did not cause the beasts to be delivered incontinent, that the king for the trespass and despite shall cause the said castle or fortress to be beaten down without recovery; and it is to wit, that where the sheriff ought to return the kings writ to the bailiff of the lord of the castle or fortress or other to whom the return belongeth, if the bailiff of the franchise will not make deliverance after that the sheriff hath made his return unto him, then shall the sheriff do his office without further delay as is aforesaid and upon the aforesaid pain; and in like manner, deliverance shall be made by attachment of plaint made without writ, and upon the same pain. [sidenote: hue and cry.] by _w. . c. ._ all generally are to be ready and appareled at the commandment and summons of sheriffs, and at the cry of the country to pursue and arrest felons, when need shall be, as well within franchises as without. and if default be found in the lord of the franchise, the king shall take the franchise to himself; and if the default be in the bailiff he shall be imprisoned one year, and after be grievously fined, and if he hath not whereof to be fined he shall be imprisoned two years: and if sheriffs, coroners, or other bailiffs, within franchise or without, conceal or consent or procure to conceal the felonies done in their bailiwicks, or that they will not attach or arrest the misdoers where they can, _&c._ and be attainted thereof, they shall be imprisoned for one year and after be grievously fined, and if they have not whereof to be fined, shall be imprisoned for three years. by _stat. de wynton_ _ e. . st. . c. ._ sheriffs and bailiffs within franchises and without, higher or lower, and that have any bailiwick or forestry in fee or otherwise are to take good heed that they follow the cry with the country, and that they have horses and armour to do it. if bailiffs of liberties have come at the hue levyed according to this statute is one of the articles of inquiry thereupon. _ e. . st. ._ [sidenote: names to returns.] by _ e. . c. ._ sheriffs and other bailiffs who receive the kings writs returnable in his court shall put their proper names with their returns, so that the court may know of whom they took such returns if need be. [sidenote: roberdesmen, &c.] by _ e. . c. ._ if any man have suspicion of evil of roberdesmen, wastours and drawlatches, be it by night or day, they shall be incontinently arrested by the constables of the towns. and if they be arrested within franchises, they shall be delivered to the bailiffs of the franchises, and kept in prison till the coming of the justices assigned to deliver the gaols. and in the mean time the bailiffs of the franchises shall inquire of such arrests and at the coming of the justices return their inquests before them and that which they have found, and the causes of taking, with the bodies, and the justices shall proceed to the deliverance of those arrested according to the law. and in case bailiffs of franchises have not enquired of such arrests they shall be amerced. [sidenote: decayed bridges.] by _ h. . c. ._ § . the justices of peace of the shire, city or town corporate, within which any decayed bridges, or any part thereof, shall happen to be, shall have power to enquire, hear and determine all annoyances being within the limits of their commissions or authorities, and if the annoyance be presented, then to make process into every shire against such as owen to make or amend any such bridges. and all sheriffs and bailiffs of liberties and franchises shall truly serve and execute such process as shall come to their hands from the said justices of peace afore whom any presentment shall be had for any such annoyance, according to the tenour and effect of the said process to them directed, without favour, affection or corruption, upon pain to make such fine as shall be set upon them, or any of them, by the discretion of the said justices. [sidenote: attendance on the justices.] all lords that have franchises, or their bailiffs, shall attend upon the justices of assise and gaol delivery, upon pain of forfeiture of their franchises. _ e. . ._ _br. forfeiture de terres_, _&c._ . by _ h. . c. ._ § . all stewards, bailiffs, and other ministers of any liberties or franchises which in times past have used or ought to attend upon the justices of assise, justices of gaol delivery, and justices of the peace at large in any county, shall be attendant to the justices of assise, justices of gaol delivery, and justices of peace of the same shires wherein such liberties and franchises be, and make due execution of all process to them to be directed, for ministration of justice within such liberties or franchises; and all such bailiffs or their deputies or deputy shall give their attendance and assistance upon the sheriff, together with the sheriff's bailiffs at all courts of gaol-delivery from time to time, for execution of prisoners according to justice. [sidenote: inquiry at sessions.] it was an article of inquiry at the sessions if the bailiffs of liberties and franchises had duly executed their office, which consists in three points _viz._ in due execution of the precepts to them sent, and in due returns to be made to the sheriff of those precepts, and that they took nothing for doing their office, except the fees to them assigned and due by course of law. _fitz. iust. p. fol. ._ (_crompton._ .) and this inquiry was by virtue of _ e. . c. ._ whereby it is ordained, that the justices assigned to take assises shall have commissions sufficient to inquire in their sessions of sheriffs, escheators, bailiffs of franchises, and their under-ministers, &c. and of the gifts, rewards, and other profits, which the said ministers do take of the people to execute their office, and that which pertaineth to their office, and for making the array of panels, putting in the same suspect jurors and of evil fame, &c. and to punish all them which thereof shall be found guilty according as law and reason requireth, as well at the kings suit as at the partys. [sidenote: account.] by _stat. de scac._ _ h. . st. ._ § . all sheriffs, fermors, bailiffs of franchises, and other who ought to come to the profer in the exchequer the morrow of st. michael and the morrow of the clause of easter, to pay their farms, rents and issues which belong to the king, shall come at the aforesaid terms, and there bring in full the aforesaid farms, rents and issues, and pay them into the exchequer. and if any fail to pay fully what he ought to pay as before is said, his body to remain without departing till he have paid or made agreement. and he who shall not come at the aforesaid terms shall be amerced according to the usages of the exchequer. and at the same terms the sheriffs and bailiffs shall bring their monies, and shall pay into the exchequer what they have received at the summons of the exchequer and the other debts of the king, and of all the things aforesaid, shall be ready and prepared to make account. by § . all the bailiffs of franchises who ought to levy the debts of the king, and shall be answerable to the sheriffs at their commandment according to the estreats of the summons of the exchequer, shall come and answer sufficiently. and those who shall not, their bodies shall remain in custody of the sheriffs; and the sheriffs, for their defaults, shall send to levy the debts by their own bailiffs wherever they can, as they have used to do in time passed. and if the bailiffs do not come to answer at the day, the sheriffs shall let them know, the sheriffs shall enter into the franchise, and cause the debts to be levyed by their own bailiffs. by § . when a sheriff or bailiff hath begun to account, no other shall be received to account until the first that is appointed hath fully accounted, and that the sum be received. by § . about the feast of st. margaret before the exchequer be closed, they shall every year narrowly search and see if a sheriff or other bailiff who ought to have accounted that year have not. and if he be a sheriff, _&c._ and if he be another bailiff he shall be summoned or distrained that he come at a certain day to account, so that no account be suffered to sleep. [sidenote: estreats.] by _ e. . c. ._ estreats shall not be doubled by the sheriffs, but the copy of the estreats wherein they touch the franchises of lords shall be delivered to the bailiffs of the franchises under the seal of the sheriff, and the same bailiffs shall yield their account in the exchequer by the same copies and no other. [sidenote: bailiffs of the savoy, and borough of southwark.] by _ & w. . c. ._ § . it shall and may be lawful for any person or persons, who have or hath any debt or debts, sum or sums of money due or owing to him from any person or persons who shall be and reside within the white-friers, savoy, salisbury court, ram alley, mitre court, fullers rents, baldwins gardens, montague close, or the minories, mint, clink, or deadmans place, upon legal process taken out against such person or persons, to demand and require the sheriffs of london and middlesex, head bailiff of the liberty of the duchy of lancaster, or high sheriff of the county of surrey, or bailiff of the liberty of the borough of southwark for the time being (as the case shall require, if the plaintiff think it requisite) or their respective deputy or deputies, officer or officers, to take and they are thereby enabled respectively to take the _posse comitatus_ or such other power as to them shall seem requisite, and enter the said pretended privileged places, and to arrest, and in case of resistance or refusal to open the doors, to break open any door or doors to arrest such person or persons upon any mesne or other process, extent or execution, or to seize the goods of any such person or persons upon any execution or extent. (penalty on the officer, for neglect or refusal to execute process, l. and on those who resist him l. each, commitment to gaol, and, on conviction, imprisonment and pillory, and for rescuing a prisoner l. and, on nonpayment within one month after judgement, transportation, and on inhabitants concealing any guilty of rescous, transportation, unless they pay the whole debt and costs.) [ ] see before, p. . in yorkshire, when bailiff of the liberty has no prison of his own, the usage is for him to bring the body to the sheriff, who makes out an ordinary commitment to the county jail. [ ] _de ballivis suis_; the printed translation reads "any of their _bailiffs_;" but this is only one out of numberless instances of its gross and shameful inaccuracy. [ ] this act extends to inquests before coroners. _cro. car._ . [ ] by § . the inhabitants of westminster are exempted from serving in any jury at the sessions before the justices of the peace for the county of middlesex. [ ] this proviso, with respect to actions or informations upon penal statutes, is taken away by _ g. . c. ._ § . [ ] by _ & ann. c. ._ §§ , , particular directions are given relative to the return of jurors within the county of _york_. see also _ ann. st. . c. ._ § . and _ & w. . c. ._ §§ , . [ ] by _ g. . c. ._ § . this clause not to extend to the county of _middlesex_. and by § . no person shall be returned to serve as a juror at any session of _nisi prius_ in the said county, who has been returned at any such session, in the two terms or vacations immediately preceding. [ ] by _ g. . c. ._ all leaseholders in the county of _middlesex_, upon leases where the improved value shall amount to l. or upward _per annum_, over and above all ground rents or other reservations, shall be liable and obliged to serve upon juries. [ ] that this statute was made in a parliamentary council at _westminster_, in the _forty-third_ year of this king, and not at _marleberge_, in the _fifty-second_, is proved by mr. prynne in his _animadversions_ on _ inst._ p. . [ ] and so it is if he that distrain chase the distress into any other house, park or other place of strength. _ inst._ . [ ] _note_, every man is bound by the common law to assist not only the sheriff in his office for the execution of the kings writs, but also his baily that hath the sheriffs warrant, &c. and if they do it not, being required they shall be fined and imprisoned. _ inst._ . chapter vi. of his indemnity and protection. [sidenote: arrest, and non-return of writ.] if the sheriff command the bailiff of the franchise, who arrests the defendant and sends him to the sheriff, if the sheriff return no writ, the bailiff shall not be charged, for the arrest of the bailiff of the franchise was lawful, and it shall be against reason that the non-return of the sheriff should prejudice him. _ e. . ._ and see also _ h. . ._ _keilwey_ . . [sidenote: mandate.] if the sheriff write to a bailiff of franchise in such form, _ballivo libertatis, &c. salutem, mandatum domini regis recepi in hæc verba_, and rehearse how the king commands by writ to take the body of such a one, where no writ comes to the sheriff, this is a good excuse to the bailiff of the franchise, and the party shall have his remedy against the sheriff. _dalton. sheriff._ .[ ] [sidenote: old bailiff and new bailiff.] if upon a _fieri facias_ against an administrator, the sheriff makes a warrant to the bailiff of a franchise to execute it, and afterward the bailiff is removed, and another bailiff elected, and afterward the old bailiff returns in his own name to the sheriff that the administrator had not any goods _preterquam_, &c. which is false, and afterward the sheriff makes the return accordingly to the court, yet no action for this false return lies against the old bailiff, for the return ought to be made in the name of the new bailiff, and so the sheriff has accepted a return as of a mere stranger, which is void; and he ought to take conusance of the right ministers of the law, and therefore the old bailiff for this false return is not punishable, but the sheriff. _ roll. abr._ . [sidenote: false return of sheriff.] upon writ to the sheriff he first made warrant to bailiff of liberty, and after to his own bailiff, who arrested the party and suffered him to escape; and then sheriff returned _mandavi ballivo_; upon affidavit of fact sheriff was ordered to attend. and agreed action lay against sheriff for false return as _non est invent._ _&c._ and his amerciaments were estreated. _ mod._ . action upon the case is maintainable against the sheriff for making the return of a bailiff who was not bailiff at the time of the return, and who had not executed the writ. _moore_, . rule for the bailiff of the [liberty of the] duchy of lancaster to return the sheriffs mandate on a _fi. fa._ discharged, the warrant having been directed to officers of plaintiffs nomination, and not to the officers of the bailiff of the [liberty of the] duchy. _barnes_, . [sidenote: escape from gaoler of liberty.] an attachment of contempt issued forth against defendant, for not bringing waldrons body into court, pursuant to a peremptory rule; and defendant having been examined upon interrogatories, it was referred to the prothonotary (as usual) to examine whether he had cleared himself of the contempt, or not. the prothonotary reported the matter specially; and the fact appeared to the court to be, that waldron being confined in the gatehouse prison, westminster, for a criminal matter, was, by leave of a judge, charged there with a bailable action, in the following manner: a _capias ad respondendum_ was directed to the sheriff of middlesex, who made a _mandate_ to the high bailiff of westminster, and defendant was charged in custody therewith, and afterwards escaped from the keeper of the gatehouse, which is the prison for the liberty of westminster, to which prison the high bailiff is obliged to carry his prisoners within hours after arrest. the high bailiff being called upon for a return of the _mandate_, returned _cepi corpus_, and that waldron remained in the custody of the keeper of the gatehouse. both the chief bailiff and the keeper of the gatehouse are appointed by, and hold their places under, the dean and chapter of westminster, and both give security to the dean and chapter; but the keeper gives no security to the high bailiff. the court were of opinion, that the high bailiff had cleared himself of the contempt, and ordered the attachment to be discharged. the high bailiff did every thing in his power to secure the prisoner, and ought not to be criminally punished. _respondeat superior_ extends to civil matters only. the prosecutor may bring his action for the escape. _barnes_, . [sidenote: escape.] if prisoner taken by a bailiff of a franchise escapes from the bailiff, the sheriff shall not have action upon the case against him, because he is not chargeable _ouster_, but the bailiff is only chargeable. _ roll. abr._ . j. s. was taken in execution by _ca. sa._ by the bailiffs of a liberty in suffolk, by warrant of the sheriff of the county. the bailiffs before the return of the _ca. sa._ brought him to westminster in the county of middlesex, and from thence, at the plaintiffs request, carried him to lambeth in surrey, where he remained under their custody till the day of the return of the writ, when they delivered him to the kings bench according to the writ; this, by the advice of all the justices, was adjudged no escape; for they thought that in whatever county in the way or out of the way to westminster, the sheriff detains or brings the prisoner, if it be before the return of the writ it is no escape. _moore_, . _burton_ [_boyton_] v. _andrews_. _ rep._ . _s. c._ if a bailiff of a manor pays the relief of his master to the lord to whom it is due, he shall be allowed this upon his account, though he had no warrant from his master so to do, because this is a casual thing of common course. (_contra_, of a thing that is not casual of common course.) _ e. . account. ._ [sidenote: rescous.] if the kings bailiff distrain for rent and rescous is made, the bailiff shall have the writ of rescous and not the king. _f. n. b._ . if the sheriff send unto the bailiff of the liberty to levy fines and amercements for the king, and the bailiff distrain, and rescous is made, the lord of the liberty shall have a writ of rescous, for the rescous, the battery, and assault, and loss of service, all in one. _f. n. b._ . if a man sue forth execution, and hath _capias_ directed to the sheriff to arrest the party, and the sheriff make his warrant to the baily of the kings liberty to arrest him, and he doth arrest him, and others rescue him from the bailiff, he who sued forth the execution shall have the writ of rescous; but yet it seems reasonable that the bailiff shall have a writ of rescous in such case, for some say he shall be chargeable, &c. _f. n. b._ . a warrant was from the sheriff to the bailiff of the 'liberty' of pomfret, who executed it, and rescue was made, and the bailiff brought the action against the rescuers to recover damages: and it was held that the bailiff may have this action in his own name, to recover damages for this. _clay._ . _foster_ v. _legerd_. (_viner, rescous. a._ .) [sidenote: inquest by the sheriff.] if bailiff of franchise return certain names to the sheriff, and the sheriff return other names, though the inquest returned by the sheriff shall be taken, yet bailiff shall have action against him. _ ass. p._ . _br. retorne de briefe_. . [sidenote: return by _ & w. . c. ._ § .] by _ & w. . c. ._ § . the return to the justices [directed by this act] shall be a good excuse and bar in law for the sheriff, for such summons and returns [as thereby directed]: and if any action or information shall be brought or prosecuted against any sheriff for such return, the said sheriff may plead the general issue, and give this act in evidence; and if the plaintiff be nonsuited, discontinue his action, or if a verdict be given for the defendant, or a _noli prosequi_ be entered in any information, or a verdict pass for the defendant thereupon, the plaintiff or informer shall pay treble costs, to be awarded by the court in which such action or information was prosecuted, and levyed by usual process. _note_, that although the word _sheriff_ be alone made use of in this clause, yet it seemeth that the bailiff of the franchise shall in such case be intitled to the full benefit thereof. [ ] this case is printed by mr. dalton as an extract in french, and he refers to _ h. . ._ but there is no such folio in that year. mr. dalton has certainly the appearance of having been a very industrious man, but the most gross inaccuracy is perhaps the least of his faults. he is therefore to be read and quoted (if at all) with great caution. and it might not be amiss if the same caution were extended to master kitchin, who deserves the title of an authority little better than mr. dalton. chapter vii. of his responsibility and punishment [sidenote: omission of name in return.] by _ e. . c. ._ if any sheriff or other bailiff in his returns leave out his name he shall be grievously amerced to the kings use. [sidenote: false returns.] by _ e. . st. . c. ._ against the false return of bailiffs of franchises, which have full return of writs, a man shall have averment, and recover as well against them as against the kings sheriff, as well of too little issues returned as in other cases, so that it fall not in prejudice of the lords in imblemishment of their franchises. and all the punishment [shall] fall only upon the bailiffs by punishment of their bodies if they have not whereof to answer. an action is maintainable against bailiff of a franchise who makes false return, and not against the sheriff. _moore_, . if the bailiff of a franchise makes a false return to the sheriff, and the sheriff returns it to the court accordingly, an action upon the case lyes against the bailiff, and not against the sheriff, for no default is in him. _ roll. abr._ . for the sheriff ought to accept the return of the bailiff if it be sufficient in law, and not to examine the truth of it. _ roll. abr._ . [sidenote: writ _ad distringendum ballivum_.] _debt_, the sheriff returned _capias, quod mandavi ballivo, &c. qui respondit quod cepit corpus_, and the person does not come, and the sheriff was amerced [q. _for what reason?_] and writ awarded _ad distringendum ballivum ad habendum corpus, &c._ _ e. . ._ _br. retorne de briefe._ . but yet [in] _replevin_ [where] the sheriff returned the _capias, quod mandavi ballivo, qui mihi respondit quod haberet corpus ejus hic ad hunc diem_, and the body did not come, _non omittas_ was awarded, and not _distringas ballivum ad habendum corpus_. _ e. . ._ _br. retorne de briefe._ . _case_; for that upon a capias directed to him against j. s. he _made a warrant to a bailiff of a franchise to arrest_ the said j. s. which was done accordingly, and yet the sheriff returned _non est inventus_. resolved _per tot. cur._ that the action well lay; and anderson said, that if the sheriff had returned that he had sent to the bailiff of the liberty, who had given this answer, that he had arrested the body, it had been good, and the sheriff had been discharged, and the process should have issued against the bailiff of the liberty to bring in the body. _cro. eliz._ . [sidenote: bailiff plaintiff, hath not the body at the day.] where sheriff returned _quod mandavi ballivo, &c._ who is plaintiff, if the bailiff returns _quod cepit corpus_ of the defendant, and hath him not at the day, &c. the bailiff shall be amerced, and not the sheriff; and the sheriff is not bound to take conusance if the bailiff be plaintiff or not, for it may be another of the same name. _ h. . ._ _br. retorne de briefe._ . [sidenote: false return for extortion.] _capias_, the sheriff returned _mandavi ballivo, & quod ipse cepit corpus, sed illud hic habere non potest quia languidus est, &c._ and defendants wife came and said that he is not sick but detained by the bailiff for extortion, and prayed remedy. whereupon a writ issued to the bailiff to return the body, and to appear; and upon examination it was found that the party was not sick, whereupon the bailiff was committed to the fleet to make fine, and the writ against the bailiff was _subpoena_ l. to appear and bring the body, &c. _ h. . ._ _br. retorne de briefe._ . [sidenote: escape.] if a writ of execution comes to the sheriff, and he makes mandate to the bailiff of franchise, who takes him, and after suffers him to escape, action lyes against the bailiff of the franchise, and not against the sheriff. _ e. . b. ._ _brook, escape_ . _ roll. abr._ . _noy._ . _buller. n. p._ . if a man be in prison for execution in a county or in a liberty, the gaoler cannot bring him out of the county or liberty, unless in special case; and if he does it the prisoner may have action of false judgment, unless he has special authority, as by privy seal to be at westminster, or the like. _ h. . ._ _br. escape_, _pl._ . if a warrant out of a _fieri facias_ to levy a debt at the suit of j. s. be directed to an under-bailiff of a liberty, and he by force thereof levys the debt, and afterwards conceals the writ, nor makes any certificate thereof, an action upon the case lyes against the under-bailiff, because he has made a personal tort. _ roll. abr._ . [sidenote: non-return of the warrant.] if the bailiff of the franchise arrest the party, and do not return the warrant to the sheriff, action of false imprisonment lyes against him for the party. _keilwey_, , _b._[ ] eyres sued a writ out of _c. b._ _versus_ smith, directed to the sheriff of york, who sent a warrant to simpson, the bailiff of the liberty of pomfret, who did not return the writ [warrant]: upon which he was amerced l. (_viz._ time after time) and that was estreated into the exchequer: afterwards eyres and smith agreed, and upon producing a certificate from the attorney for the plaintiff that the debt was satisfied, these amerciaments were discharged upon motion to the barons. _note_, there ought to be a constat of the estreats, and, as the clerks said, the court uses not to discharge the amerciaments, but 'allows' you to compound them. _ salk._ . rule made for an attachment of contempt against the bailiff of the liberty of holderness, in the county of york, for not returning a _mandate_ made by the sheriff, on an attachment of privilege, pursuant to a peremptory rule to return the same within six days notice, without any return of a _mandavi ballivo_, antecedent to the said peremptory rule; on an affidavit of service of that rule, and an affidavit of searching the sheriff's office, after the expiration of the six days, and that the _mandate_ was not returned; all the officers present reporting this to be the practice. _barnes_, . though by agreement between a bailiff of a franchise and his deputy, the deputy is restrained to serve process beyond such a sum, yet if he serves process of a greater sum without other warrant, and after levies the money, the bailiff shall be chargeable. _litt._ . _viner, actions [case. disceit.] f. c. ._ [sidenote: escape of felon.] if the bailiff of a franchise that hath a gaol, hath the custody of a felon, he is chargeable for his escape, and not the sheriff or his gaoler. _ hale p. c._ . [sidenote: king to have fines on bailiff.] [sidenote: amerciaments for insufficient returns.] by _ h. . c. ._ § . the king, his heirs and successors, shall have all manner of fines, issues, amerciaments and forfeitures that shall be lost, forfeit or assessed by or upon any stewards, bailiffs or other ministers or officers of any franchises or liberties, for non-execution, mis-execution or insufficient returns of such writs, warrants, precepts or other process, which to them or to their deputies shall be directed, or for any contempt or other misdemeanor whatsoever it be, concerning their offices, in and for the due execution or administration of justice. and the amerciaments for insufficient returns of writs or other process made by stewards or bailiffs of liberties or franchises, having returns of writs and execution of the same, shall be put and set upon the heads of such stewards or bailiffs, and not upon the sheriffs[ ]. [sidenote: acts against sheriffs extended to bailiffs.] by § . every statute and act theretofore made and being in force against sheriffs, their undersheriffs, bailiffs or other ministers, for making or returning of panels or juries, or for due execution or serving of any writs or other process, or for taking of fees, or for reformation of extortions, or for any other thing or things concerning their offices, and all pains and penalties contained in every such statute shall be extended to all stewards, bailiffs and other ministers and officers of liberties and franchises having returns of writs and executions thereof, in like manner, form and condition as they extend to the sheriffs, their undersheriffs, bailiffs or other ministers. (but by § . this article not to be prejudicial to any steward, bailiffs of franchises or to their deputies or clerks for exercising and occupying their offices above one year.) [sidenote: returning persons not summoned.] by _ eliz. c. ._ § . if any sheriff, undersheriff, bailiff or other minister do return any person or persons to be summoned to appear in any jury, wherein he shall for default of his appearance lose or forfeit any issues, where in truth such person shall not be lawfully summoned, the same sheriff, &c. shall forfeit, lose and pay unto the said person or persons so returned double the value of the issues by such juror or jurors lost or forfeited for his [or their] default of appearance. [sidenote: taking money, _&c._ for not returning jurors.] by § . if any sheriff, &c. or any bailiff of franchise, shall receive, take, or have by himself or by any other, any sum of money, reward or any other profit, directly or indirectly, or do take any promise, make any agreement, or assent to have any sum of money, reward or other profit, directly or indirectly, of any person or persons, for the sparing, not warning, or not returning of any person to be sworn as juror, for the trial of any issue joined or to be joined in any of the queens majestys courts [of k. b. c. p. or e.], or before any justices, every sheriff, _&c._ or bailiff of franchise so offending, to forfeit for every such offence the sum of l. (half to the queen, and half to the person suing.) [sidenote: offences against _ eliz. c. ._] by _ eliz. c. ._ § . if any undersheriff or other person mentioned in this act, shall do or commit any act or acts contrary to the oaths aforesaid, or either of them (see b. ii. c. .) or contrary to the true intent and meaning of this act, every such person so offending shall forfeit and lose for every such offence, to the party or parties grieved, his or their treble damages. [sidenote: summoning persons contrary to _ & w. . c. ._] by _ & w. . c. ._ § . if the sheriff, his deputy or deputies, bailiff or bailiffs, shall summon and return any freeholder or copyholder, to 'try any issues joined in any of the courts [of k. b. c. p. or e.] or to be or serve on any jury at the assizes, sessions of _oyer_ and _terminer_, gaol delivery or sessions of the peace', otherwise than as 'directed by this act,' (see b. ii. c. .) or in any ways neglect his or their duty or duties in the service or services of them required by this act, or excuse any person or persons for favour or reward, or allow of any writ of _non ponendis in assizis & juratis_, or other writ, to excuse or exempt any person or persons from the service of any jury or juries, under the age of years, such sheriff, deputy or bailiff shall for every transgression forfeit the sum of l. to be recovered by the party or parties grieved or injured, or whom else will sue for the same. [sidenote: summoning persons contrary to _ g. . c. ._ § .] by _ g. . c. ._ § . in case any sheriff, undersheriff, bailiff or other officer to whom the return of juries shall belong, shall summon and return any person or persons to serve on any jury in any cause to be tryed before the justices of assize or _nisi prius_ or judges of the great sessions, or the judge or judges of the sessions for the counties palatine, whose name is not inserted in the duplicates delivered or transmitted to him or them by the clerk of the peace, if any such duplicate shall be delivered or transmitted, any judge or justice of assize or _nisi prius_ or judge or judges of the said great sessions, or the judge or judges of the sessions for the said counties palatine, shall and may, upon examination in a summary way, set such fine or fines upon such sheriff, _&c._ for every such person so summoned and returned as aforesaid as the said judge or justice of assize, _nisi prius_, _&c._ shall think meet not exceeding l. and not less than s. [sidenote: wilful transgression contrary to _ g. . c. ._ § .] by § . if any sheriff shall wilfully transgress [in returning any persons as jurors to serve on trials at any assizes or _nisi prius_, or at the great sessions, or at the sessions for the counties palatine who have served within the space of one year before in the county of rutland, or four years in the county of york, or of two years before in any other county, not being a county of a city or town,] any judge or justice of assize, or _nisi prius_, _&c._ may and is required, on examination and proof of such offence, in a summary way, to set a fine or fines upon every such offender as he shall think meet, not exceeding l. for any one offence. [sidenote: wilful transgression contrary to _ g. . c. ._ § .] by § . if any sheriff, undersheriff, bailiff or other officer shall wilfully transgress [in taking or receiving any money or other reward to excuse any person from serving or being summoned to serve on juries; or any bailiff or other officer appointed by any sheriff or undersheriff to summon juries, in summoning any person to serve thereon other than such whose name is specifyed in a mandate signed by such sheriff or undersheriff, and directed to such bailiff or other officer], any judge or justice of assize, _nisi prius_, _&c._ may and is required, on examination and proof of such offence, in a summary way, to set a fine or fines upon any person or persons so offending as he shall think meet, not exceeding l. according to the nature of the offence. [sidenote: offences against _ g. . c. ._] by _ g. . c. ._ § . every sheriff, undersheriff, bailiff of any liberty, bailiff, serjeant at mace, gaoler and other officer and person as aforesaid, who shall in anywise offend against this act (see before c. .) shall, for every such offence (over and above such penalties and punishments as he or they shall be liable unto by the laws now in force) forfeit and pay to the party thereby aggrieved the sum of l. to be recovered with treble costs of suit, by action of debt, bill, plaint or information, in any of his majestys courts of record at westminster. [sidenote: account.] by _stat. de marleberge_ (_ h. . c. ._) if bailiffs which ought to make account to their lords do withdraw themselves and have no lands nor tenements whereby they may be distrained, they shall be attached by their bodies, so that the sheriff in whose bailiwick they be found shall cause them to come to make their account. [sidenote: wreck and stray, &c.] account lies of wreck and stray though the bailiff does not seize it; for he shall account of all that he received and might have received. _br. accompt._ _pl._ . (_cites_ _ h. . ._) so of toll, and of the profits of a common pound. _ibid._ [ ] if execution be directed to a sheriff to arrest any man or to make execution within a liberty, and the sheriff directs his warrant to a [_l._ the] bailiff of the liberty for to make execution of the process, 'who' makes it, and after is a fugitive, and not able to answer for that, the lord of the franchise shall answer for that, and shall be liable to answer for his bailiff by all the justices. _ brownlow._ . [ ] before this statute, when the return which the bailiff of the franchise made to the sheriff was not sufficient, the court has refused to amerce the bailiff, because he was not minister to the court. _t. e. ._ _fitz. retourne del vicount._ . chapter viii. of his fees. [sidenote: arrest.] by _ h. . c. ._ sheriffs, undersheriffs, bailiffs of franchises, nor any other bailiff, by occasion or under colour of their office, shall take any other thing of any person by them to be arrested or attached for the omitting of any arrest or attachment, for fine, fee, suit of prison, mainprise, letting to bail, or shewing any ease or favour to any such person, for their reward or profit, but such as follow, _viz._ for the sheriff, d.; the bailiff which maketh the arrest or attachment, d.; and the gaoler, if the prisoner be committed to his ward, d.; nor for the making of any return or panel, and for the copy of any panel, but d. (penalty treble damages and l.) [sidenote: extent or execution.] by _ eliz. c. ._ it shall not be lawful to or for any sheriff, undersheriff, bailiff of franchises or liberties, nor for any of their officers, ministers, servants, bailiffs or deputies, by reason or colour of their office or offices, to have, receive or take of any person or persons whatsoever directly or indirectly for the serving and executing of any extent or execution, upon the body, lands, goods or chattels of any person or persons whatsoever, more or other consideration or recompence than d. for every s. where the sum exceedeth not l. and d. for every s. being over and above the said sum of l. that he or they shall so levy or extend, and deliver in execution, or take the body in execution for, by virtue and force of any such extent or execution, upon pain to lose and forfeit to the party grieved his treble damages, and to forfeit the sum of l. (half to the queen and half to the informer or plaintiff.) the bailie of the franchise on _ eliz. cap. ._ takes all execution fees. _ keble_. . [sidenote: _habere facias possessionem aut seisinam._] by _ g. . c. ._ § . it shall not be lawful for any sheriff, _&c._ or for the bailiff of any franchise or liberty, by reason or colour of their office or offices, or by reason or colour of their executing of any writ or writs of _habere facias possessionem aut seisinam_, to demand, ask, or receive any other or greater consideration, fee, gratuity or reward, than is hereafter mentioned (which shall be lawful to be demanded and taken); that is to say, the sum of d. for every s. of the yearly value of any manor, messuage, lands, tenements and hereditaments, whereof possession or seisin shall be by them or any of them given, where the whole exceedeth not the yearly value of l. and the sum of d. only for every s. _per annum_, over and above the said yearly value of l. (penalty l.) [sidenote: extent and _liberate_, &c.] by _ g. . c. ._ § . no sheriff to take for the extent and _liberate_ & _habere facias possessionem_ or _seisinam_ on the real estate, by virtue of such extent, any more than the above fees. (same penalty.) [sidenote: process, under l. &c.] by _ g. . c. ._ § . no attorney, bailiff or other person, shall have, take, charge, or demand more than s. for the making and serving a copy of such process issuing out of any superior court [where cause of action is under l.], or more than s. for the making and serving a copy of such process, issuing out of any inferior court [where cause of action is under s.] [sidenote: english notice.] by § . no fee or reward shall be taken for the english notice by this act required to be written upon every copy of process [where cause of action in superior court is under l. in inferior court under s.] to be served upon any defendant.[ ] [ ] this notice is to the effect following, _viz._ _a. b. you are served with this process, to the intent that you may by your attorney appear in his majestys court of ---- at the return thereof, being the ---- day of ---- in order to your defence in this action._ chapter ix. pleadings. [sidenote: creation.] one may be bailiff by a simple grant (_i. e._ by parol) or patent or inheritance, and therefore no need to shew how. _h. . h. . [ .]_ _fitz. monstrauns de faitz, &c._ . and _br. bailie_. . [sidenote: patent.] [sidenote: duchy.] [sidenote: aid of the king.] where a man justifies distress as the kings bailiff of his manor, for rent or services arrear, and prays aid of the king, he shall have it without shewing patent how he is made bailiff, for he claims to the use of the king; but where he claims to his own use by the king, there he ought to shew patent; and it was held by the serjeants, that if a man justify as bailiff of the king by reason of his manor which he hath by reason of the duchy of lancaster, that the defendant shall not have aid of the king before issue joined. _ h. . ._ _br. ayde del roy_, . [sidenote: corporation.] bailiffs of a corporation (in avowry for beasts taken _damage feasant_) need not shew how the corporation was incorporated, nor say by their precept, nor need precept be in writing for such a matter as this. _ lev._ . [sidenote: distress.] bailiff who distrains ought to shew in what right he distrains. _ h. . ._ _br. distresse_, . [sidenote: distress for amerciament.] to bailiff justifying distress for amerciament, it sufficeth to take conusance of the presentment and no more and _non refert_ as to him, whether it be true or not. _ ed. . ._ _ ed. . ._ _cro. eliz._ . bailiff justifying distress for amerciament, in trespass ought to set out some estreat of the court or warrant from the steward, and justify under that. _ salk._ . bailiff justifying distress for amerciament in leet in trespass may plead _presentatum fuit_ without averring the fact, for _non refert_ as to him whether the offence was done or not since there was a presentment: a difference between replevin and trespass; in the first the bailiff is an actor, and is to recover, which shall be upon the merits; in trespass he is only to excuse the wrong. _ salk. ._ _ salk. ._ [sidenote: exchequer.] if a man be amerced in the kings leet, and upon process out of the exchequer the bailiff distrains him for the amercement, and he brings trespass, he ought to bring this action of trespass in the office of pleas of the exchequer, for the bailiff levyed it as officer of this court. _ roll. abr._ . and _vide_ _lane_, . [sidenote: averment.] if bailiff do any thing which touches his bailiwick, as payment of rents and such like, which are due in right of the manor, it is reasonable that he should have the averment, but of a thing which doth not touch his bailiwick it is not reasonable that he should have the averment without warrantry. _ e. . ._ _br. accompt._ . where bailiff of franchise [under _ h. . c. ._] takes bailbond, to himself, by the name of his office, sufficient in pleading to shew generally that he is such a person as had authority to take bail. _comyns_, . debt upon bond by the plaintiff who was chief bailiff of the liberty of pontefract in yorkshire, but he did not declare as _capital' ballivus_, but yet by the whole court it was held good; for otherwise the defendant might have craved _oyer_, and have [had] it entered _in hæc verba_, and then have pleaded the statute of _ h. ._ that it was taken _colore officii_, but now it shall be intended good upon the demurrer to the declaration. and _ellis, j._ said, that so it was lately resolved in this court in the case of one conquest. and judgement was given for the plaintiff. _ mod._ . [sidenote: inferior court.] bailiff of an inferior court the process whereof he executes, must shew the jurisdiction of that court in pleadings. _ keble_, . [sidenote: trial.] cary bailiff of westminster _v._ buckhurst for entering his liberty and executing a _fi. fa._ demurrer that it doth not appear how plaintiff was seized of the office. judgement for plaintiff, inquiry of damages to l. affirmed in error. upon a trial the right must have been proved if the defendant had taken issue, and no inconvenience in this form of declaring. _ show_, . _comb._ . _s. c._ [sidenote: tort.] where a bailiff is charged directly with a tort, it ought to be shewn that he is bailiff of a liberty, who has _returna brevium_. _comyns_, . [sidenote: declaration v. bailiff.] declaration against bailiff of westminster, because plaintiff doth not say of what liberty he is bailiff, and whether he hath execution and return, bad; because otherwise no colour to charge him, and therefore ought to be specially shewn. _cro. car._ . [sidenote: pernor.] [sidenote: quo warranto.] against a _pernor_ the plaintiff need not shew how he claims the privilege of return of writs; but in a _quo warranto_ where the defendant must make a title he ought to shew it. _hardres_, . [sidenote: return of the writ.] bailiff of a liberty in justification need not shew the return of the writ. _cro. car._ . [sidenote: sheriffs return.] _debt_, to the _capias_ the sheriff returned _non est inventus_, the plaintiff shewed that the sheriff made a precept to the bailiff of the franchise to take the body, who took him and delivered him to the sheriff, which he would aver, _&c._ _tota curia_, you shall not have this averment against the return of the sheriff. nor in any case, but too little issues by the statute. _h. h. . ._ _fitz. averment_, . in case against a bailiff for the false return of _nulla bona_ upon a _fieri facias_, the question was upon the evidence at the trial, whether the bailiff of a liberty shall be concluded in point of evidence by the return of the sheriff? and _per curiam_, he is concluded; and if the sheriff makes any other return than that which the bailiff makes to him, he may have his action against the sheriff; and it was said that holt, chief justice, was of this opinion. see _ hen. . [ .]_ _l. raym._ . [sidenote: mandate.] upon a demurrer, powel said that the plea was naught, because it sets forth a mandate to the bailiff of the liberty, and did not shew that it was under the hand and seal of the sheriff. _ vent._ . but see _ ventris_, . that on motion to quash a return of a rescous, because it was _mandavi ballivis_, who took him _virtute warr' præd'_, and it was said, _mandavi_ did not imply that it was in writing, the exception was disallowed by the court.[ ] [sidenote: county.] where any thing is shewed to be done within a liberty or a franchise, there it is not necessary to shew within what county that liberty or franchise doth lie. _trin. . car. b. r._ for the franchise hath no relation to the county. _s. p. r._ . [ ] and quære whether mandate be ever pleaded to be under the _hand_ of the sheriff. _nota_, that _mandavi_ does not mean, and of course should not be translated, _i have commanded_, but _i have sent to_. the sheriff cannot _command_ the bailiff of the franchise, having no sort of authority over him in any case whatever. appendix. no. i. capias bill. _middlesex._ the sheriff is commanded that he take _a. b._ if he may be found in his bailiwick, and him safely keep, so that he may have his body before the lord the king, on wednesday next after fifteen days from the day of easter, to answer _c. d._ gentleman, of a plea of trespass; and also to a bill of the said _c._ against the aforesaid _a._ for one hundred pounds of debt, according to the custom of the court of the said lord the king, before the king himself to be exhibited, and that he have there then this precept. no. ii. warrant to the bailiff of the liberty. to the bailiff of the liberty [of the lord the king] [of his duchy of _l._] of _e._ _middlesex._ by virtue of the kings writ issued out of his majestys court of kings bench at westminster, to me directed, i command you that you take _a. b._ if he may be found in your liberty and him safely keep, so that you may have his body before the lord the king, on wednesday next after fifteen days from the day of easter, to answer _c. d._ gentleman of a plea of trespass; and also to a bill of the said _c._ against the aforesaid _a._ for one hundred pounds of debt, according to the custom of the court of the said lord the king, before the king himself to be exhibited. dated the ---- day of ---- --. _r._ (the attorneys name.) oath for l. and upwards. before you arrest the defendant, beware he is not an ambassador or servant to an ambassador, or in some other way priviledged or protected. precept signed ---- inst. _f. g._ } sheriff. _h. i._ } no. iii. bailiffs warrant to his under-bailiffs. _j. k._ esquire, bailiff of the liberty of [the lord the king] of _e._ in the county of middlesex, to _l. m. n. o._ and _john doe_, my deputies, greeting. by virtue of a precept in writing, under the seal of the sheriff of the said county, to me directed, i command you and every of you jointly and severally, that you, some or one of you take _a. b._ if he shall be found in my bailiwick, and him safely keep, so that i may have his body before the lord the king, on wednesday next after fifteen days from the day of easter, to answer _c. d._ gentleman of a plea of trespass; and also to a bill of the said _c._ against the aforesaid _a._ for one hundred pounds of debt, according, &c. to be exhibited. dated the ---- day of ---- --. _r._ by the same bailiff. before you arrest, &c. (_as above_.) oath for l. and upwards. precept signed ---- inst. no. iv. chief bailiffs return. to _f. g._ and _h. i._ esquires, sheriff of the county of middlesex. _j. h._ esquire, bailiff of the liberty [of the lord the king] of _e._ in the said county, doth hereby certify and return, that by virtue of a warrant in writing under the seal of the said sheriff to him the said bailiff directed, he hath taken the body of _a. b._ which he is ready to have before the lord the king, (_&c._ _as in the warrant_) as by the said warrant he is commanded. (_or thus_: that _a. b._ whom, _&c._ _see the indenture post._) by the same bailiff. no. v. form of an indenture of return between the bailiff of a liberty and the sheriff, according to the statute of york[ ]. this indenture made, &c. between _j. k._ esquire, bailiff of the liberty of the lord the king of _e._ in the county of _m._ of the one part, and _f. g._ and _h. i._ esquires, sheriff of the said county, of the other part, witnesseth, that the said bailiff hath certified and returned unto the said sheriff, that by virtue of a certain warrant in writing under the seal of the said sheriff to him the said bailiff directed, he the said bailiff hath taken the body of _g. h._ gentleman, which he will have ready before the lord the king at westminster, at the day therein contained. _or thus_: which he hath delivered to the said sheriff. _or thus_: that _g. h._ gentleman, whom the said bailiff was lately, by a certain warrant in writing, under the seal of the said sheriff, to him the said bailiff directed, commanded by the said sheriff to arrest, is not found in his bailiwick. (_and so of other returns_). in witness, _&c._ no. vi. sheriffs return. by virtue of this writ to me directed, i have commanded _j. k._ esquire, bailiff of the liberty [of the lord the king] of _e._ in the county of middlesex, who hath the full return of all writs, and the execution thereof within the liberty aforesaid, and to whom the execution of this writ doth wholly belong to be done, for that no execution in any other place in my bailiwick out of the said liberty could be made, which said bailiff answereth that he hath taken the body of the within named _a. b._ which he hath ready at the time and place within mentioned. _or thus_: that the within named _a. b._ is not found in his bailiwick. _or thus_: who hath given me no answer. no. vii. non omittas. george the third, by the grace of god, of great britain, france and ireland, king, defender of the faith, and so forth. to the sheriff of middlesex, greeting: we command you that you omit not by reason of any liberty of your county, but that you take _a. b._ if he may be found in your bailiwick, and him safely keep, so that you may have his body before us on ---- next after five weeks of easter, to answer _c. d._ gentleman, of a plea of trespass and also to a bill of the said _c._ against the aforesaid _a._ for one hundred pounds of debt, according to the custom of our court, before us to be exhibited, and have you then there this writ. witness, lloyd lord kenyon at westminster, the ---- day of ---- in the th year of our reign. [ ] the 'compiler' not finding an example of this indenture in any book, has been tempted to frame something resembling what he conceives it has been. it is, however, more for curiosity than use, as the bailiff seems completely deprived of the benefit of the statute by the modern stamp acts. the effect may nevertheless be attained by a simple memorandum as follows: be it remembered, that _j. k._ esquire, bailiff _&c._ hath certifyed and returned unto _f. g._ and _h. i._ sheriff, _&c._ that by virtue, _&c._ witness the hands of the said bailiff and sheriff, the ---- day of ---- . finis. printed by a. strahan, law printer to his majesty, printers-street, london. the law's lumber room _of this edition copies have been printed for england and america._ the law's lumber room by francis watt london john lane, the bodley head, vigo st. chicago: a. c. mcclurg & co. mdcccxcv to william ernest henley flotsam and jetsam from his old journal prefatory to the lumber room you drag furniture no longer fit for daily use, and there it lies, old fashioned, cumbrous, covered year by year with fresh depths of dust. is it fanciful to apply this image to the law? has not that its lumber room of repealed statutes, discarded methods, antiquated text-books--"many a quaint and curious volume of forgotten lore"? but law, even when an actual part of the life of to-day is like to prove a tedious thing to the lay reader, can one hope to find the dry bones of romance in its antiquities? i venture to answer, "yes." among all the rubbish, the outworn instruments of cruelty, superstition, terror, there are things of interest. "benefit of clergy," the "right of sanctuary," bulk large in english literature; the "law of the forest" gives us a glimpse into the life of mediæval england as actual as, though so much more sombre than, the vision conjured up in chaucer's magic _prologue_. "trial by ordeal" and "wager of battle" touch on superstitions and beliefs that lay at the very core of the nation's being. "as full of fictions as english law," wrote macaulay in the early part of the century; but we have changed that, we are more practical, if less picturesque, and john doe and all his tribe are long out of date. between the reign of james i. and that of victoria all the subjects here discussed have suffered change, with one exception. the "press-gang" is still a legal possibility, but how hard to fancy it ever again in actual use! i fear that these glimpses of other days may seem harsh and sombre; there is blood everywhere; the cruel consequences of law or custom are pushed to their logical conclusions with ruthless determination. the contrast to the almost morbid sentimentalism of to-day is striking. so difficult it seems to hit the just mean! but the improvement is enormous. gibes at the law are the solace of its victims, and no one would deprive them of so innocent a relief, yet if these cared to enquire they would often find that the mark of their jest had vanished years ago to the lumber room. the plan of these papers did not permit a detailed reference to authorities, but i have mentioned every work from which i derived special assistance. i will only add that this little book originally appeared as contributions to the _national observer_ under mr w. e. henley's editorship. i have made a few additions and corrections. contents page benefit of clergy peine forte et dure a passage in shakespeare (fines and recoveries) the custom of the manor deodands the law of the forest par nobile fratrum (john doe and richard roe) sanctuary trial by ordeal wager of battle the press gang sumptuary laws benefit of clergy "benefit of clergy" is a phrase which has entered into english literature and english thought. the thing itself exists no longer, though the last traces of it were only removed during the present reign; but it so strikingly illustrates certain peculiarities of english law-making, it has, moreover, so curious a history as to be interesting even to-day. it took its rise in times when the pretensions of the church, high in themselves, were highly favoured by the secular power. the clergy was a distinct order, and to subject its members to the jurisdiction of the secular courts was deemed improper; so, when a clerk was seized under a charge of murder, or some other crime, the ordinary stepped forth and claimed him for the "court christian," whereto the whole matter was at once relegated. there the bishop or his deputy sat as judge. there was a jury of twelve clerks before whom the prisoner declared his innocence on oath. he was ready with twelve compurgators (a species of witnesses to character) who, after their kind, said more good of him than they had any warrant for; after which, on the question of fact, some witnesses were examined for, but none against him. this curious proceeding, which was not abolished till the time of elizabeth, soon became a sham. nearly every accused got off, and the rare verdict of guilty had no worse result than degradation or imprisonment. now, so far, the system is intelligible, but in the succeeding centuries it lost this quality. english legal reformers have ever shown a strong disinclination to make a clean sweep of a system, but they keep tinkering at it year after year with a view of making it more rational or better adapted to current needs. they did so here, and the result was a strange jumble of contradictions. first, the privilege was confined to such as had the clerical dress and tonsure, afterwards it was extended to mere assistants, the very door-keepers being held within the charmed circle; yet the line had to be drawn somewhere, and how to decide when every ruffian at his wits' end for a defence was certain with blatant voice to claim the privilege? well, could he read? if so, ten to one he was an ecclesiastic of some sort, and therefore entitled to his clergy. and it soon came that this was the only test demanded. if you could read you were presumed a parson, and had your right to at least one crime free. as no woman could possibly be ordained, she could not "pray her clergy"--(an exception was made in the case of a professed nun)--nor might a _bigamus_, who was not a man who had committed bigamy, but one who "hath married two wives or one widow." however, a statute ( edw. vi., c. , s. , _temp._ ) made an end of this latter distinction by declaring, with quaint tautology that _bigami_ were to have their clergy, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." before this it might well be that your chance of saving your neck depended on whether you had married a widow or not; which species was dangerous in a sense undreamt of by mr weller. as regards the reading, it must not be supposed that a difficult examination was passed by the prisoner before he escaped. you had but to read what came to be significantly called the neck-verse from the book which the officer of court handed you when you "prayed your clergy." the neck-verse was the first verse of the fifty-first psalm in the vulgate. it was only three words--_miserere mei, deus_: "have mercy on me, o god." it seems strange that it was ever recorded of anyone that he did not read, and was therefore condemned to be hanged; for surely it were easy to get these words by heart and to repeat them at the proper time? this must have been done in many cases, and yet sometimes criminals were so densely ignorant and stupid, or it might be merely bewildered, that they failed; then the wretch paid the penalty of his life. "_suspendatur_," wrote the scribe against his name, and off he was hauled. the endless repetition of this word proved too much for official patience, and with brutal brevity the inscription finally appears, "sus." or "s." and now the neck-verse was free to everyone were he or were he not in holy orders, and he claimed the privilege after conviction, but in the reign of henry vii. ( ) an important change was made. a person who claimed clergy was to be branded on the crown of his thumb with an "m" if he were a murderer, with a "t" if he were guilty of any other felony; if he "prayed his clergy" a second time this was refused him, unless he were actually in orders. of course the mark on the thumb was to record his previous escape from justice. it was with this "tyburn t" (as it was called in elizabethan slang) that ben jonson was branded. it is only within the last few years that careful mr cordy jeaffreson has exhumed the true story from the middlesex county records. the poet quarrelled and fought a duel with gabriel spencer, an actor, and probably a former colleague. the affair came off at shoreditch. jonson, with his rapier, which the indictment (for a reason explained in the chapter on "deodands") values at three shillings, briskly attacked his opponent, and almost immediately gave him a thrust in the side, whereof spencer died then and there. ben was forthwith seized and thrown into prison. whilst waiting his trial he said that spies were set on him, but he was too much for them, and afterwards all the judges got from him was but "ay" and "no." why spies should have been necessary in so plain a case is far from clear. it is more significant that a devoted priest succeeded in converting him for the time to roman catholicism, and he afterwards confessed to drummond of hawthornden that he had come near the gallows. however, what he said, or did not say, is of little weight as compared with the evidence of contemporary judicial records. the fact is clear that the poet of _every man in his humour_, the cunning artist of _queen and huntress_, and _drink to me only with thine eyes_, had a true bill found against him by the grand jury, who sat, by the way, in a tavern, for as yet hicks hall, the predecessor of the session's-house on clerkenwell green, was not. in october , he was taken to the old bailey to stand his trial. he pleaded guilty, asked for the book, read like a clerk ("jonson's learned sock," forsooth!), and as the strangely abbreviated latin of the record has it, "_sign' cum lra' t et del_," that is, marked with the letter "t," and set at large to repair to "the sun," "the bolt," "the triple tun," or some other of those dim, enchanting elizabethan taverns, there to give such an account of the transaction as sufficed to dissemble it till this age of grubbers and dictionaries wherein you are destined to nose every ancient scandal as you go up the staircase of letters. it has been suggested that the officer, moved to inexplicable tenderness, touched him with a cold iron. the only ground for this is that dekker, in his savage satiro mastix; or, _the untrussing of the humourous poet_, makes no reference to the "tyburn t." one fancies that ben speedily acquired a trick of carrying his hand so that the mark was not readily seen, or he may have cut or burnt it out as others did. all the same, the best evidence shows it to have been there. in the reign of james i. another change was made. women got the benefit of clergy in certain cases, and afterwards they were put on the same footing as men. then in the necessity for reading was abolished, and in so was branding. but another process was going on all this time. a great and ever-increasing number of crimes were declared to be without benefit of clergy. the selection was somewhat capricious. among the exempted felonies were abduction with intent to marry, stealing clothes off the racks, stealing the kings' stores, and so on. naturally the whole subject fell into inextricable confusion, and when it was abolished in , even pedants must have given a sigh of relief. one detail escaped the reformer: since the time of edward vi. every peer ("though he cannot read," saith the statute) enjoyed a privilege akin to that of clergy, and it was not till that this last vestige of the system vanished from the statute-book. i will only add that, in its details, "benefit of clergy" was even more grotesque and fantastic than it has here been possible to set forth. peine forte et dure in england during many centuries a prisoner was called to the bar before trial and enjoined to hold up his right hand, by which act he was held to admit himself the person named in the indictment. the clerk then asked him, "how say you, are you guilty or not guilty?" if he answered, "not guilty," the next question was: "culprit, how will you be tried?" to which he responded, "by god and my country." "god send you a good deliverance," rejoined the official, and the trial went forward. if the accused missed any of these responses, or would not speak at all, and if the offence were treason or a misdemeanour, his silence was taken for confession of guilt, and sentence was passed forthwith. if the charge were felony, a jury was empanelled to try whether he stood "mute of malice," or "mute by the visitation of god." if this last were found, the trial went on; if the other, he was solemnly warned by the judges of the terrible consequences summed up by lord coke (trial of sir richard weston in , for sir thomas overbury's murder) in the three words--_onere, frigore, et fame_. the proceedings were most commonly adjourned to give him time for reflection; but if after every exhortation he remained obdurate, then he was adjudged to suffer the _peine forte et dure_. the judgment of the court was in these words: "that you return from whence you came, to a low dungeon into which no light can enter; that you be stripped naked save a cloth about your loins, and laid down, your back upon the ground; that there be set upon your body a weight of iron as great as you can bear--and greater; that you have no sustenance, save on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day; till you be pressed to death; your hands and feet tied to posts, and a sharp stone under your back." there is but one rational way to discuss an institution of this sort. let us trace out its history, for thus only can we explain how it came to have an existence at all. for the prisoner himself there was usually a very strong reason why _he_ should stand mute. if he were convicted of felony his goods were forfeited; while in case of capital felony, the result of attainder was corruption of blood so that he could neither inherit nor transmit landed property. often he must have known that conviction was certain. had he fondness enough for his heirs--children or other--to make him choose this hideous torture instead of milder methods whereby the law despatched the ordinary convict from this world? well, very many underwent the punishment. between - the number was thirty-two (three of them women) in rural middlesex alone. "_mortuus en pen' fort' et dur'_," so the clerk wrote for epitaph against each name, and something still stranger than the penalty itself is revealed to us by an examination of the original records. many of the culprits were evidently totally destitute, and these underwent the _peine forte et dure_ from stupidity, obstinacy, or sheer indifference to mortal suffering and death. the custom of pressing did not obtain its full development at once, and there is some difficulty as to how it began. a plausible explanation is given in pike's "history of crime," and is supported by the authority of the late mr justice stephen. at one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. thus, when the accused was asked how he would be tried, his answer originally ran, "by god" (equal to by ordeal), or "by my country" (equal to by jury), since to put yourself on the country meant to submit yourself to this last. but trial by ordeal was abolished about , and the alternative was a privilege to be claimed, not a necessity to be endured. offenders soon discovered that by standing mute and declining to claim this privilege, they put the court in a difficulty. the ideas of those distant days were simple exceedingly, and a legal form had strange force and efficacy. to put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? at first the knot was rather cut than loosened. thus, in some cases, the accused were put to death right off for not consenting to be tried "according to the law and custom of the realm." then this was held too severe, and under edward i., in the proceedings of the parliament of westminster, occurs the earliest definite mention of the punishment. it was enacted that notorious felons refusing to plead should be confined in the _prison forte et dure_. here they went "barefooted and bareheaded, in their coat only in prison, upon the bare ground continually night and day, fastened down with irons," and only eating and drinking on alternate days as already set forth. it was bad enough, no doubt, but not of necessity fatal. so the authorities perceived, and they again cut the knot by a policy of starvation. so one infers from the case of cecilia, wife of john rygeway, in the time of edward iii. cecilia was indicted for the murder of her husband; she refused to plead. being committed to prison, she lived without meat or drink for forty days; and this being set down to the virgin mary, she was thereupon allowed to go free. this procedure seems to have been found too slow, and the increase of business at the assizes seemed like to end in a hopeless block. were the judges to encamp in a country town while the prisoners made up their mind as to pleading? something was wanted to "mend or end" the stubborn rascals; and under henry iv., in the beginning of the fifteenth century, the "prison" _forte et dure_ became the "peine" _forte et dure_: with the consequence that, if the accused declined to plead, there was an end of him in a few hours, the provision of bread and water being a mere remnant of the older form of sentence. this procedure lasted till , when the geo. iii., c. made "standing mute in cases of felony equivalent to conviction." in it was enacted by and geo. iv., c. , "that in such cases a plea of not guilty should be entered for the person accused." the curious formal dialogue between the clerk and the prisoner was abolished that same year. something stronger than exhortation was now and again used before the obdurate prisoner was sentenced to pressing, thus at the old bailey in , the thumbs of one john durant were tied together with whipcord, which the executioner strung up hard and tight in presence of the court; he was promised the _peine forte et dure_ if this did not answer, but upon a little time being given him for reflection, he speedily made up his mind to plead not guilty. it is difficult to explain the distinction drawn between ordinary felony on the one hand and treason and misdemeanours on the other. perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the state, a sort of necessity compelled the judge to proceed in the most summary manner. no student of english history needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. nor, as already noted, were women. perhaps it were unreasonable to expect a criticism of the system from contemporary judges or text writers; but what they did say was odd enough; they did not condemn pressing, but they highly extolled the clemency of the law which directed the court to reason with and admonish the accused before it submitted him to this dread penalty. i shall now give some examples of practice. fortunately (or unfortunately you may think as you read) we have at least one case recorded in great detail, though, curiously enough, it has escaped the notice of an authority so eminent as mr justice stephen. margaret clitherow was pressed to death at york on lady day, march th, , and the story thereof was written by john mush, secular priest, and her spiritual director. margaret's husband was a protestant, though his brother was a priest, and all his children appear to have been of the older faith. accused of harbouring jesuit and seminary priests, of hearing mass, and so on, she was committed to york castle, and in due time was arraigned in the common hall. in answer to the usual questions, she said that she would be tried "by god and by your own consciences," and refused to make any other answer. it was sheer obstinacy: she was a married woman, and she could have lost nothing by going to trial. but she coveted martyrdom, which everybody concerned appears, at first at any rate, to have been anxious to deny her. it was plainly intimated that if she would let herself be tried she would escape: "i think the country," said clinch, the senior judge, "cannot find you guilty upon the slender evidence." the proceedings were adjourned, and the same night "parson whigington, a puritan preacher," came and argued with her, apparently in the hope of persuading her to plead; but he failed to change her purpose; the next day she was brought back to the hall. something of a wrangle ensued between herself and clinch, and in the end the latter seemed on the point of pronouncing sentence. then whigington stood up and began to speak; "the murmuring and noise in the hall would not suffer him to be heard;" but he would not be put off, and "the judge commanded silence to hear him." he made a passionate appeal to the court ("did not perhaps god open the mouth of balaam's ass?" is the somewhat ungracious comment of father mush.) "my lord," said he, "take heed what you do. you sit here to do justice; this woman's case is touching life and death, you ought not, either by god's law or man's, to judge her to die upon the slender witness of a boy;" with much more to the same effect. clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "good woman, i pray you put yourself to the country. there is no evidence but a boy against you, and whatsoever they (the jury) do, yet we may show mercy afterwards." she was moved not a whit; and then rhodes, the other judge, broke in: "why stand we all day about this naughty, wilful woman?" yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." she was carried back to prison through the crowd, of whom some said, "she received comfort from the holy ghost;" others, "that she was possessed of a merry devil." when her husband was told of her condemnation, "he fared like a man out of his wits, and wept so vehemently that the blood gushed out of his nose in great quantity." some of the council suggested that she was with child. there seems to have been some foundation for the remark, at any rate, clinch caught eagerly at the idea. "god defend she should die if she be with child," said he several times, when the sheriff asked for directions, and others of sterner mould were pressing for her despatch. kind-hearted whigington tried again and again to persuade her; and the lord mayor of york, who had married her mother ("a rich widow which died before this tragedy the summer last"), begged her on his knees, "with great show of sorrow and affection," to pronounce the words that had such strange efficacy. it was all in vain, so at last even whigington abandoned his attempt, and "after he had pitied her case awhile, he departed and came no more." her execution was fixed for friday, and the fact was notified to her the night before. in the early morning of her last day on earth she quietly talked the matter over with another woman. "i will procure," the woman said, "some friends to lay weight on you, that you may be quickly despatched from your pain." she answered her that it must not be. at eight the sheriffs came for her, and "she went barefoot and barelegged, her gown loose about her." the short street was crowded with people to whom she dealt forth alms. at the appointed place, one of the sheriffs, "abhorring the cruel fact, stood weeping at the door;" but the other, whose name was fawcett, was of harder stuff. he "commanded her to put off her apparel," whereupon she and the other woman "requested him, on their knees, that she might die in her smock, and that for the honour of womankind they would not see her naked." that could not be granted, but they were allowed to clothe her in a long habit of linen she had herself prepared for the occasion. she now lay down on the ground. on her face was a handkerchief. a door was laid upon her. "her hands she joined towards her face"; but fawcett said they must be bound, and bound they were to two posts, "so that her body and her arms made a perfect cross." they continued to vex the passing soul with vain words, but at last they put the weights on the door. in her intolerable anguish she gave but a single cry: "jesu! jesu! jesu! have mercy upon me!" then there was stillness; though the end was not yet. "she was in dying one quarter of an hour. a sharp stone as much as a man's fist put under her back, upon her was laid a quantity of seven or eight hundredweight to the least, which, breaking her ribs, caused them, to burst forth of the skin." it was now nine in the morning, but not till three of the afternoon were the braised remains taken from the press. stories of violence and cruelty serve not our purpose unless they illustrate some point, and i shall but refer to two other cases. major strangeways was arraigned in (under the commonwealth be it noted) for the murder of his brother-in-law. in presence of the coroner's jury he was made to take the corpse by the hand and touch its wounds, for it was supposed that, if he were guilty, these would bleed afresh. there was no bleeding, but this availed him nothing, and he was put on his trial at the old bailey in due course. he refused to plead, and made no secret of his motive; he foresaw conviction, and desired to prevent the forfeiture of his estate. he was ordered to undergo the _peine forte et dure_. the press was put on him angle-wise; it was enough to hurt, but not to kill, so the bystanders benevolently added their weight, and in ten minutes all was over. the dead body was then displayed to the public. again, in , a man named burnworth was arraigned at kingston for murder. at first he refused to plead, but after being pressed for an hour and three-quarters with four hundredweight of iron, he yielded. he was carried back to the dock, said he was not guilty, and was tried, convicted, and hanged. there was at least one case in the reign of george ii.--but enough of such horrors. a passage in shakespeare fines and recoveries "is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dust? will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" thus the prince of denmark moralising in the graveyard scene in hamlet over the skull of a supposed lawyer: with more to the same effect, all showing that shakespeare had a knowledge of law terms remarkable in a layman, and that he used them with curious precision. in the huge body of shakespearian literature there are special works (one by lord chancellor campbell) on the fact, which has been used to buttress up the baconian authorship theory (indeed, it is the only positive fact at all in point). again, it has been conjectured that the dramatist spent some time in a lawyer's office, and that phrases from the deeds he engrossed stuck in his memory. it is far more likely that, being the man of his age he was, he would read in and round the law as well as much else for its own sake, and that fines and recoveries were so odd in themselves, and so excellently illustrative of english history and procedure, that they fairly took his mighty fancy. recoveries were already some two hundred years old in his time, and, to judge from the tone of the passage, people must even then have held them in derision. but they were to last full two hundred years more; for not till did they vanish from the scene. recoveries were methods of disentailing an estate by means of a complicated series of fictions. they arose in this way:--before , when land was given to a man and the heirs of his body, the judges ruled that, the moment a son was born, the father held the estate as a simple freehold, which he could sell or make away with very much as he chose. the great landowners were ill-content at this; they meant their tenants to enjoy their estates only as long as they rendered useful service in return, and if issue failed a man, they thought the land should revert to his lord on his death. hence in that year an act procured by their influence, called _de donis conditionalibus_, or the statute of westminster the second ( ed. i., c. ), created the estate tail (_i.e._ _taillé_, or restricted). it provided that land given to a man and his heirs as above, reverted to the original donor on failure of the donee's issue. blackstone waxes eloquent over the evils that ensued. children declined obedience to a father who could not disinherit; farmers lost their leases, which had no force against the heir; and creditors were defrauded of their debts, which constituted no charge on the land, nay, treasons were fostered, insomuch as the traitor's interest lapsing at his death, nothing was left for the king to seize. yet it was not till the reign of edward iv. that a device was found to evade the statute. _taltarum's case_ was decided in . it is loosely said that this established the validity of recoveries, but they were in use some time before, and sir frederick pollock will have it that it was the oddity of the name which made a landmark of the decision. a recovery was a sort of friendly or fictitious action, whereby the estate was adjudged to an outsider, whose claim, though baseless--if one did not look beyond the four corners of the action--was acquiesced in by the nominal defendant. the mediæval lawyer was usually a priest, and he had found those entails grievous obstacles in the way of the church's aggrandisement. perhaps, too, as the country grew in wealth, so rigid a law of settlement bore hard on an ever-waxing commercial class. to repeal the statute seemed impossible, but the great landowners, while proof against force and impermeable to argument, were not hard to outwit. a legal complication passed their understanding; and this one, however brazen, had the patronage of many powerful interests. thus, and thus only, may the fact of their acquiescence be explained. and now let us trace out the steps in a common recovery with "double voucher." the judges had already made one preparatory breach in the law. a tenant in tail could dispose of his estate if he left other lands of the same value; for these his heirs held under the same conditions as the original property. the principle of this decision was ingeniously used as a lever to overthrow the system. suppose a, tenant in tail, had contracted to sell his land to b: he began by formally disposing of it to c, usually his attorney, and technically called "tenant to the _præcipe_," or writ. then b commenced an action in the common pleas against c to recover the estate in question, which, he asserted, had been wrongfully taken from him. c, instead of defending the action, "vouched to warranty" a: that is, he called in a to defend, on the ground that the said a had covenanted to support his title; but a, instead of defending the action, "vouched to warranty" d. this last, called the "common vouchee" (in the form in blackstone he appears as "jacob morland"), was always the "crier to the court," and for playing his part received the modest fee of fourpence on each recovery. at first he (jacob) made a great show at fight; he denied all b's statements, and "put himself upon the country:" _i.e._ he demanded that the case should go before a jury for trial. b then craved leave "to imparl" (_i.e._ to have a private conference with jacob), and the proceedings were solemnly adjourned. when they were resumed jacob was not to be found: "he hath (it was adjudged) departed in contempt of the court." evidently, or so it seemed, he had no answer to make. then b's claim was allowed; c was to have of the lands of a a quantity equal to what he had nominally lost; whilst a, in his turn, was to have the same remedy against jacob, who, having no means at all, cheerfully accepted much paper responsibility. then a writ was issued to the sheriff of the county wherein the lands were situate, directing him to give possession to b, whose title was constituted by a record of all the aforesaid transactions. as the centuries went by the proceedings became ever less substantial, the action was always commenced by the issue of a writ in the usual way, but most of the other steps were only taken on paper. sir frederick pollock says, that if the disentailer were a peer, a sergeant was actually briefed to move the court in the matter: also, one must note that lands held from the crown were never subject to this process (nor can they now be disentailed without a special act of parliament). by another barefaced fiction, colonial property might be disentailed in england. the deed roundly asserted that the island of antigua (or wherenot) lay in the parish of st mary, islington--the operation of this geographical miracle giving jurisdiction to the court of common pleas. one would suppose that something simpler might have served; but though laymen jeered, lawyers regarded these quaint formalities with strange reverence. my lord coke mentions with solemn reprobation a counsel named hoord who scoffed thereat in the house of lords, and whom a judge gravely rebuked as not worthy to be of the profession of the law, for that he "durst speak against common recoveries;" and as late as , thomas coventry, esq., of lincoln's inn, concludes his learned treatise on the subject with an eloquent if slightly confused protest against any change, "which could know no end but an apparent confusion, or clearing away a path for the access of some modern pretender to strip the ivy from the venerable oak of our boasted constitution, the only emblem that remains of its antiquity and endurance." and now for a word on fines. these were so called for that they made an end of a controversy. they were simpler and even more ancient than recoveries. a fictitious action was begun by the purchaser against the vendor of an estate, wherein the latter soon gave in: the case was compromised, a fine was paid to the crown, upon the court giving its consent to this termination of the proceedings, and the record thereof became the purchaser's title. they were likewise used to bar entails, though they were not so effectual as recoveries. one of the first acts of the reform parliament of was the statute for the abolition of fines and recoveries. it was a mere question of procedure, for the law itself remained unaltered: but disentailment was effected by the enrolment of a deed in chancery. and now the dust lies thick on shelves of text-books--a whole system of learning, full of intricate details, the creation of centuries of perverse ingenuity. and the land-owners? these, too, long since availed themselves of the dark and subtle devices of the conveyancer. sir orlando bridgman, a great lawyer of the commonwealth, and finally chief justice of the common pleas under charles ii., invented and perfected the system of family settlements which to-day secures the secular interests of our great historic houses, as well as, if less directly than, any enactment could do. the custom of the manor has chance or necessity ever opened to you the charter-chest of the respectable solicitor in some country town? then, among his records, you have noted an interminable series of parchment volumes--very thick, very closely written, some centuries old, and one in current use. these are the court-rolls of the manor of wherenot. if you can spell out the beautifully written mediæval characters, you are sure to light on many a quaint record of by-gone folk and their ways, for, better than aught else, the manor and its muniments preserve for us the english past. manors, they used to say, arose in this fashion. a great lord obtained a piece of land from the king; part he disposed of to tenants who held of him in freehold (this sub-infeudation was stopped by the statute _quia emptores_ in ); the rest was his domain, on part of which he built the manor house, another part was cultivated by villeins, then the cotters had dwellings with portions of land, and the residue was waste, where the folk of the manor pastured their cattle, gathered fuel, and made their ways. sometimes these villeins were slaves, but each had his patch of soil, wherefor he rendered some servile office to his lord, ploughing his land, garnering his crops, or such like. the business of the manor was transacted in two courts, the court baron and the customary court. the first was attended by the freeholders, who themselves constituted the court; the second by the villeins, who merely hearkened to and witnessed the doings of the lord or his steward. when a villein died, the fact that the new tenant had such and such a field on condition of rendering so many days' labour yearly was noted in the records or roll of the customary court, and this roll, or a copy of it, becoming his title, he was dubbed a copyholder. in theory he was a mere tenant at the will of the lord, but time fettered the lord's will, until the principle was evolved that it must be exercised according to the custom of the manor, for "custom" as lord coke put it, "is the life of the manor," and so it came about that the holder had fixity of tenure while he did his service. his position steadily improved, the slave became free, the servile toil a money payment, and now the court agenda merely register changes of title. this account of the manor may serve for description, but does not represent the real origin, which has not yet been exactly ascertained. it was a fragment of old england, with a lord usually of norman race as head, and the relations between head and members elaborated and controlled by the theories and devices of the mediæval lawyer. as manorial law was custom, old local usages were preserved unaltered; thus, whilst the root idea of feudalism was that the eldest son should inherit his father's land, and the manor itself did so descend, within it an extraordinary diversity of usage obtained. by a custom similar to that of gavelkind (in kent), the copyholder's estate was sometimes parted equally among all his sons. in other places, borough-english prevailed, that is, the youngest son took everything, to the exclusion of his elder brothers; nay, by an odd application of the maxim "better late than never," a posthumous child ousted the brother already in possession; or, again, the widow or widower inherited. when the tenant died, the lord had a right to seize his best chattel (usually a beast), this was called a heriot, and it is yet here and there exacted. many customs are old saxon, many customs were invented, or at any rate twisted into fantastic rights from mere whim or a not very cleanly sense of humour, but here one must often merely accept the fact, for to try it by the rule of right reason were absurd. most manors were held of the crown, in return for services sometimes of the oddest character; thus, solomon de campis (or solomon at-field) had land in kent on condition that, "as often as our lord the king would cross the sea, the said solomon and his heirs should go along with him to hold his head on the sea, if it was needful;" and certain jurors solemnly present on their oath that "the aforesaid solomon fully performed the aforesaid service." our early kings provided against every possible contingency. one tenant enjoyed land by the service of holding the king's stirrup when he mounted his horse at cambridge castle. another must make _hastias_ in the king's kitchen on the day of his coronation. the glossaries are dumb as to this mysterious dish, though the learned darkly hint at haggis! or was it "a certain potage called the mess of _giron_," which, being enriched with lard, was called _maupygernon_--which last is possibly mediæval welsh for a haggis? thomas bardolf, who died, lord of addington, in edward iii., was pledged to compound three portions of this dainty dish against coronation day, and serve them up smoking hot, one to the king, one to his grace of canterbury, and the third "to whomsoever the king would." other manors were held on the tenure of presenting to the king a white young brach ("lady the brach" of _king lear_) with red ears; of delivering a hundred herrings baked in twenty pasties; of finding the king a penny for an oblation, whenever he came to hear mass at maplescamp, in kent: gifts of roses, falcons, capons (which last dainties your mediæval sovereign held in special favour), were abundant. but how to riddle this one? the manor of shrivenham, in berks, was held (_temp._ edward iii.) by the family of becket, whose head, whenever the king passed over a certain bridge in those parts, must present himself with two white capons, whereto he directed the royal attention in choice mediæval latin, "behold," he said, "my lord, these two capons, which you shall have another time, but not now," which pleasantry reminds one of the current vulgarism, "will you have it now, or wait till you get it?" the service of the dymocks, owners of scrivelsby in lincoln, as king's champions, and of the duke of norfolk, as earl marshal of england, curious enough in themselves, are too notorious for this crowded page. a few quaint tenures are of quite modern origin. thus the honour of woodstock (an honour was a lordship over several manors: so "waverley honour" in scott's great romance) is held by the tenure of presenting a banner each second of august at windsor castle; that being the anniversary of blenheim, fought in ; and on each th of june the duke of wellington must likewise send to the same place, for the estate of strathfieldsay, a tri-coloured flag to commemorate waterloo. the last century legal antiquary pricked up his ears at a fine scandal which he fondly imagined in connection with the manors of poyle and catteshill, both near guildford. their holders were bound to provide a certain number (twelve in one instance) of young women, called _meretrices_, for the service of the royal court. dry-as-dust shook his solemn head, invented pimp-tenure (a "peculiarly odious kind of tenure" he explained), and the forerunner of the man who writes to _the times_ (it was then to the _gentleman's magazine_) cracked some not particularly choice jokes on the subject. a wider knowledge restored the moral character of the king, his lords, and the much-slandered young women, whose decent dust may now repose in peace. in mediæval latin the word was widely used for the female servant general or special, and these were, it seems, neither more nor less than laundry-maids. manors of an early date were ofttimes held under other manors on equally whimsical conditions. a snowball at summer and a red rose at christmas are extravagantly picturesque. a hawk was a common rent; but in one case it was carried to the earl of huntingdon's house, by the yielder, attended by his wife, three boys, three horses, and three greyhounds; and these must be housed for forty days at the earl's expense, while his countess must give the lady her second best gown. again, the tenant of brindwood in essex, upon every change, must come with his wife, his man, and his maid, all a-horseback to the rectory, "with his hawke on his fist and his greyhound in his slip"; he blows three blasts with his horn, and then receives curious gifts, and thereafter departeth. the lord of the manor of essington, in stafford, must bring a goose every new year's day to the head manor-house at hilton. here he drives it about the fire, which jack of hilton blows furiously, and (one regrets to add) most improperly. but jack may be forgiven, for he is but "an image of brass about twelve inches high," whose description you read at length in old thomas blount, the great recorder of all these mad pranks. the holding of pusey in berks by the pusey horn, gifted, it is said, by king canute, is well-known. sir philip de somerville, knight, was bound to hunt and capture the earl of lancaster's _greese_ (wild swine) for my lord's larder upon st peter's day in august. this he did till holy-rood day, when he dined with the steward, and after dinner "he shall kiss the porter and depart." this same sir philip de somerville held the manor of whychenover at half terms from the earl on condition that there ever hung in his hall one bacon flitch to be assigned to a happy married couple yearly in lent, after a variety of ceremonies like those in the more famous case of dunmow: the disposal of the flitch there being likewise according to "the custom of the manor." in the customs that made up the inner life of the manor one finds a diversity too great for classification. however, those old english folk were a merry lot; with usages not sad nor savage, but having much sensible joy in good meat and drink. at baldock, in hertfordshire, the customary court was holden at dinner-time, whereto every baker and vintner within the bounds must send bread and ale which the steward and his jury "cam' to pree," and presently gave their verdict "if these be wholesome for man's body or no." to the manor of hutton conyers there was attached a great common, where many townships pastured their sheep; and the shepherd of each township "did fealty by bringing to the court a large apple pie, and a twopenny sweet cake." for refreshment, "furmity and mustard, well mixed in an earthen pot, is placed before the shepherds, which they sup with spoons provided by themselves, and if any forget his spoon then, for so the customary law wills it, he must lay him down upon his belly, and sup the furmity with his face to the pot or dish." and the custom further permits the bystanders "to dip his face into the furmity," to the great delight of all present. to finer issues is the money provided by magdalen college, oxford, for certain manors of theirs in hampshire, _pro mulieribus hockantibus_, as the dog latin of the college accounts hath it. on hock day, annually, "the women stop the ways with ropes, and pull passengers to them, desiring something to be laid out in pious uses": the men having hocked the women after the same fashion the day before. there are traces of this usage further afield than hampshire. not less jovial were the tenants of south malling, in kent, who were bound to pay scot-ale, which fund they agreeably expended in "drink with the bedel of the lord archbishop." the case of stamford, in lincoln, is noteworthy as showing the origin of one peculiar custom. in the time of king john, william, earl warren, was lord of the place. one day he saw from his castle wall "two bulls fighting for a cow in the castle meadow;" their bellowing attracted all the butcher's dogs in the place; and these, in company with a host of rag-tag and bobtail, chased one of the champions in and out the town till he went mad; all which so delighted earl warren, that he forthwith gifted the common to the butchers on condition that they provided a mad bull six weeks before christmas day, "for the continuance of that sport for ever." it is impossible even to conjecture the origin of other customs. in most manors, when a copy-holder died, his widow had in free-bench (or what the common law calls dower) the whole or part of his lands. there was one restriction: she must remain "sole and chaste." yet, if she forgot herself, her case was not altogether past praying for in the manor of enborne in berkshire. at the next customary court she appeared strangely mounted upon a black ram, her face to the tail, the which grasping in her hand, she recited, sure the merriest, maddest rhyme it ever entered into the heart of man to conceive-- "here i am riding upon a black ram"---- alas, that the rest must be silence! the _spectator_, greatly daring, gives it in full; but that was as far back as november st, . a like custom ruled the manor of kilmersdon, in somerset, where the doggerel, if briefer and blunter, is at least equally gross. and here one must refer to the _jus primæ noctis_, that lewd historic jest which, in england at any rate, was ever a sheer delusion. true that on the marriage of a villein's daughter a fine was paid to the lord, but this was not to spare her blushes, but as compensation to him for the loss of her services--inasmuch as she took the domicile of her husband. nay, the custom of the manor usually made for morality. there was a fine called child-wit exacted on the birth of an illegitimate child, sometimes from the infant's father, or, again, from the father of its mother. nay, in one or two places the unlucky lover forfeited all his goods and chattels. on the other hand a curious privilege attached to an oak in knoll wood in the manor of terley in staffordshire: "in case oath were made that the bastard was got within the umbrage or reach of its boughs," neither spiritual nor temporal power had ought to say, and the man got off scot free. the curious tenacity of the manorial custom is well shown in the case of pomber in hampshire: the annual court, in accordance with immemorial usage, must be held in the open air, but the inconvenience of this was obviated by an immediate adjournment of the proceedings to the nearest tavern. the records were not kept on parchment, but "on a piece of wood called a tally, about three feet long and an inch and a half square, furnished every day by the steward." in time these strange muniments became worm-eaten and illegible; and, as occupying much needed room, were thrown to the flames by the dozen. (it will be remembered that the old houses of parliament were set on fire and destroyed on the burning of the exchequer tallies, october .) some of the survivors were produced as evidence in a case heard at winchester, which fact provoked "a counsellor on the opposite side of the question" to dub it "a wooden cause." the obvious retort--that his was a wooden joke--seems lacking; but possibly this gem of legal humour emanated from the bench: how often one has seen its like! still stranger was the lawless court of the honour of raleigh: it was held in the darkness of cockcrow; the steward and the suitors (i.e., those bound to attend the court) mumbled their words in scarce audible fashion; candles, pens, ink, were all forbidden; for, as the authorities vaguely put it, "they supply that office with a coal." to ensure a punctual attendance, the suitor "forfeits to his lord double his rent every hour he is absent." the learned camden affirms it was all to punish the aboriginal tenants for a conspiracy hatched in the darkness of the night; again he sees in it a remnant of an old teutonic custom; and in the end you suspect that he knows as little as yourself. then there was the white bull which the tenants of the monks of bury st edmunds were bound by their leases to provide, that childless women might present it to the shrine of the martyred king of east anglia; there was the fine called "thistletake," which the owner of beasts crossing the common, and snatching at the "symbol dear," must pay to the lord of the manor of halton; there are the "three clove-gillieflowers" which the tenants of hame in surrey shall render at the king's coronation; there are all sorts of minute details as to house-bote and fire-bote, and common of piscary and turbary. one more custom and we have done. in the time of richard the lion-heart, randal blundeville, earl of chester, was on one occasion sore pressed by the flintshire welsh. he summoned to his aid his constable of cheshire, one roger lacy, "for his fierceness surnamed hell." it was fair-time at chester, and roger, putting himself at the head of the motley crowd marched off to his relief. the welsh heard, saw, and bolted, and the grateful earl there and then promulgated a charter granting to roger and his heirs for ever, "power over all fiddlers, lechers, light ladies (the charter has a briefer and stronger term), and cobblers in chester." under henry vii. we find the then grantee exacting from the minstrels (_inter alia_) "four flagons of wine and a lance," whilst each of the aforesaid ladies must pay fourpence on the feast of st john the baptist. under elizabeth, various acts were aimed at rogues, vagabonds, and sturdy beggars, but always with a saving provision as to this chester jurisdiction, and in later times the vagrant act ( george ii., cap. ) had a like reservation. deodands at one time or other you have looked, one supposes, into that huge collection of curiosities and horrors known as the state trials. you may possibly have noted the form of indictment in the murder cases; and if so, one odd detail must have impressed you. having set forth the weapon used by the murderer, the document invariably goes on to estimate its money value: for, having been instrumental in taking human life, it was forfeit to the crown, and it or its price had to be duly accounted for. it was called a deodand, but the name was applied to many things besides arms used with malice aforethought. thus, a man died by misadventure: then was the material cause active or passive? for instance, his end might come because a tree fell on him, or because he fell from a tree, in either case the wood was a deodand, and so forfeited. the name is from _deo dandum_--a thing that must be offered to god, and this because in early mediæval times the church or the poor had the ultimate benefit. for the origin of the custom one must go far back. in hebrew, greek, and roman legislation, the physical object that caused the loss of human life was held accursed, and hence was destroyed or forfeited. in england a thing became a deodand only when the coroner's jury (or more rarely some other authority) had found it the cause of death; which death, moreover, must happen within a year and a day of the accident. if it did, the thing was seized, no matter where it was, or who had it. in default of delivery the township was liable, and it was the sheriff's duty to get the value therefrom. if a man had _per infortunium_ (or without blame) used the article, the jury found that as a fact, and he was acquitted, or rather pardoned; but in strict law his goods were forfeit as late as . and not everything causing death was a deodand. if a man fell into the water, was carried under a mill-wheel, and perished, the wheel was forfeit but not the mill. the distinction was sometimes difficult. here are two actual examples. a cart and a waggon came into collision; the man in the cart was pitched out under the waggon-wheels and died. the two vehicles, all they held, the horses that drew them, were adjudged deodands, "because they all moved _ad mortem_." again, a ship was hauled up for repairs, toppled over on a shipwright at work, and was declared forfeit. your mediæval lawyer was nothing if not subtle, and he soon raised doubts enough to gravel a schoolman. he questioned if things fixed to the freehold could become deodands. suppose a man were ringing a church bell, and the rope, getting twisted round his windpipe in some strange fashion, choked the life out of him: how then? the rope seemed past praying for, but what about the bell? the learned differed, yet all agreed that if the timber holding the bell got loose, and came crashing down on the sexton, the royal treasury, of clear right, pounced on rope, and bell, and timber. how furiously, with what a wealth of legal learning and invention, one fancies the utter barristers must have "mooted" those fascinating points after supper in the halls of their ancient inns! the decisions were hard to reconcile. thus, in edward the third's time, it was held that if a man fall to his death from his horse against the trunk of a tree, the horse is forfeit, but not the tree. but in the same reign a distinction was drawn. one william daventry, a servant to john blaburgh, engaged in watering a horse, was grievously hurt. he was carried to his master's house "_apud fleet street in suburbio london_", and there at even he died. at first the horse was adjudged a deodand, but blaburgh got the inquisition quashed on the ground that the horse had not thrown his rider. again, if a lad under fourteen fell from a cart and was killed, there was no deodand: as some opined, because the masses might be dispensed with, in the case of one presumed sinless from his tender age, and the proper end of deodands was to procure masses; but others urged it was "because he was not of discretion to look to himself." the further question--what possible difference this could make--was not raised; for even a mediæval lawyer's speculation must stop somewhere. but how if the slayer were a lad? a cornish case, _temp._ , supplies an answer. jack of burton, a boy of twelve, had a mind to draw the bow. he rigged up a target in a house, and shot thereat from the outside. one arrow missed the mark, and, glancing off a hook, transfixed a woman called rose. rose died forthwith, and jack fled in horror. it was held that _le hoke_ was a deodand, but that the boy, on account of his age, was no whit to blame, and (with a touch of kindliness) a proclamation was made far and wide that he might return in safety. in this connection one recalls the awkward misadventure of abbot, archbishop of canterbury, in the reign of james i., who, being out a-hunting, killed, by pure accident, peter hawkins, his keeper. he had many enemies, and all sorts of ecclesiastical and temporal penalties were threatened: at least, it was said, let all his goods be confiscate. but the king turned a deaf ear to these suggestions: he comforted the unlucky prelate with kindly words, and a full pardon, dated th september , removed all possible danger from his reverend person. if a man met his death afloat, there was deodand or no deodand as the water was fresh or salt, for these rules had no force on the high seas or in tidal rivers: because, said some, "there were so many deaths at sea." "nay," said others, "how forfeit the ocean?" "but at least," it was replied, "one could take the ship"----but here again speculation must stop. although deodands first went to the crown, and were properly applied to pious or charitable uses, yet they were often granted to lords of manors: so often, indeed, that one of the few references to them in english literature--a couplet in samuel butler's _hudibras_--treats this as the general rule. "for love should, like a deodand, still fall to the owner of the land." this owner was not seldom exacting, and his claim was met in characteristic english fashion. the coroner's jury returned the value of the deodand at next to nothing, _e.g._, "a horse, value three shillings," and the court of "king's bench" refused to disturb the finding. hence one absurdity balanced another, and the doctrine was long defended. in , joseph chitty, in his standard work on _prerogatives_, maintains that "the forfeiture is rational so far as it strengthens the natural sensation of the mind at the sudden destruction of human life." but in later years these mediæval ghosts began to walk again to some purpose. in the london and birmingham railway company was amerced in £ as a deodand! railway directors were no doubt convinced that and vic., c. , which in made an end of the whole business, came not a day too soon. had the law of twenty years before that been restored, there might have been some warrant for stripping those same directors of all their property after each railway accident, and one shudders to think of the consequences had the coroner's jury found the plant used not _per infortunium_. one thing must be added, many held that the instruments of a murder, though forfeited to the crown, were not, properly speaking, deodands, and they quoted as illustration the curious case of one rempston, who forced his boat's crew to row under london bridge _invitis corum dentibus_ in dangerous weather. he was thrown out and drowned, and the jury, it was said, brought in a verdict of _felo de se_, to save the boat from forfeiture. but the weight of authority was emphatically against this view. the law of the forest "a stretch of land, thick planted with trees;" so you picture a forest to yourself, but old english law held otherwise. there were miles of woodland that were not forest at all, and acres of pasture that were. john manwood, the elizabethan lawyer, still our chief authority on the subject, defines it as "a certain territory of woody grounds and fruitful pastures, privileged for wild beasts and fowls of forest, chase, and warren, to rest and abide in under the safe protection of the king." such a preserve was exactly delimited, and might contain villages, churches, and so forth, within its bounds, as the new forest does to-day. the king had certain rights over all, yet it was mainly private property; nay, there might be spaces in it, but not of it,--within its bounds, but not within its regard, as the phrase ran,--and so exempt from its peculiar laws. manwood gives a picturesque, though quite erroneous derivation of the term: it was _for rest_ of the wild beasts; but a sounder etymology traces the word to _foris_ (= outside), for that it was outside the jurisdiction of the common law, and had codes, courts, and officers of its own. the whole business was for centuries alike insult and wrong to the commons of england. hunting was not merely the chief amusement of our early kings: it was a necessary pursuit for the keeping down of the wild beasts then a real danger to the fields and their cultivators. the forest charter of canute the dane (dated ) is a myth; but it is certain that, before the conquest, the sovereign had a peculiar--howbeit, an undefined--property in the woodland. the conqueror, who, according to the saxon chronicle, loved the tall deer as if he had been their father, devastated far and wide to make the new forest; and he and his immediate successors punished hurt done to the deer with loss of life or limb. the great charter contained provisions against this odious abuse of power, and under henry iii. a special charter of the forest enacted that no man should lose life or limb for killing deer, at the same time that it disafforested (_i.e._, removed from the forest to which they had been improperly joined) vast tracts of country. after the new there was but one other forest made in england, that was the land round hampton court, afforested under henry viii. by act of parliament. an attempt to revive royal rights over the woodland hastened the fall of charles the first, and then the commonwealth gave the forest system its death-blow, though it was not till the time of george iii. that the great mass of enactments was formally repealed. a court of swainmote lingers in the new forest and elsewhere, and its officials, called verderers, albeit shorn of their ancient power and splendour, do their quaint antics still; but by an odd, though happily not singular inversion, those old popular wrongs are now become popular privileges; epping forest, for instance, could never have become a public park but for the crown rights, and these same rights over the woodlands throughout the country now yield an income which more than covers the cost of the whole civil list. had the crown looked more sharply to its own, the profit to ourselves had been still vaster. the forest laws, however complex in detail, were all inspired by one consistent idea--the preservation, to wit, of the king's venison. even under edward i.'s comparatively humane rule the verderer held an inquest upon a deer found dead in the regard, just as the coroner did upon a man's body, and the jury found how the creature came to its end. the very arrows gleaned there were entered in the verderer's role. the freeholder within that charmed ground might not fell his own timber without leave, lest he should spoil the _cover_: nor could he turn out his goats to browse, for they would taint the pasture; whilst he must feed his sheep in moderation, else he committed the grievous offence of _surcharging_ the forest. the forest had a huge staff of officers. first was a multitude of subordinates; foresters--who, if they kept ale-houses in the regard, and encouraged folk to drink therein, committed a special crime called _scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and what not. these haled trespassers before the court of attachments, which was held every forty days. in command of them were the verderers, constituting, with representatives from the forest townships, the court of swainmote, which met thrice a year for (_inter alia_) the trial of the more important offences. judgment on its findings was given at the court of justice seat, held but once in the three years, under the presidency of a lord chief justice in eyre of the forest. there were but two--one for the north, the other for the south of the trent; and inasmuch as this officer was commonly some great noble--"a man," says my lord coke, with a touch of irony, "of greater dignity than of knowledge of the laws of the forest"--some skilled professional folk were joined with him in the commission. the last court of justice seat was held in by the earl of oxford. it was a mere form: the last but one (in ) had created a fine pother by its exactions. offences were either trespasses _in vert_ or trespasses _in venison_. the vert (= green) was of course the cover; and the destruction thereof was called _waste_, while _assart_ was stubbling it up to make ploughland: and _purpestre_ (a most grievous business) was building on or enclosing part of the forest. (as late as the reign of charles i., sir sampson darnell was heavily fined for erecting a windmill on his own ground in windsor chase). moreover, vert might be _over vert_ or _hault-bois_, or it might be _nether-vert_ or _sous-bois_, according as it was underwood or not; and in either case it was _special vert_ if it bore fruit, such as pears, crabs, hips, and haws, whereon the deer might feed. venison, as lawyers understood it, was composed of beasts of forest--to wit, the hart, the hind, the hare, the boar, and the wolf--and beasts of chase. a chase, which was like a park, but was not enclosed, might be held by a subject; but every forest was likewise a chase and a warren, and the beasts of chase were the buck, the doe, the martern, and the roe. these were described with wondrous detail. the hart--"the most stately beast which goeth on the earth, having as it were a majesty both in its gait and countenance"--was in his first year a calf, in his second a broket, in his third a spayad, in his fourth a staggard, in his fifth a stag, and in his sixth a hart. if he escaped the pursuit of king or queen he became a hart royal, which no subject might molest. in , richard coeur-de-lion hunted a noble beast out of the forest of sherwood into barnsdale in yorkshire, and there losing him, made proclamation "that no person should kill, hunt, or chase the said hart, but that he might safely return into the forest again." an animal thus honoured was called a hart royal proclaimed, and in the st of king henry vii., a man was indicted for taking so precious a life, but the case apparently went off for want of technical proof of proclamation. your precise woodman talked of a bevy of roes, a richesse of marterns, a lease of bucks. he said that a hart harboureth, whilst a buck lodgeth, and a hare was seated. he dislodged the buck, but he started the hare. he would tell you that the hart belloweth, the buck groaneth, the boar freameth; and whilst the hart had a tail, the roe had a single, the boar a wreath, and the fox a bush (not brush be it noted) or holy water sprinkle. their amours (_e.g._ a fox went to clicketing), their young, their very excrements were dignified in a long array of special terms, the divisions and subdivisions of the deers' antlers being enough of themselves to gravel the tyro in woodcraft. the peace of those precious animals was elaborately safeguarded, and it was specially forbidden "to haunt the forest" during the _fence moneth_, which was fifteen days before and after midsummer. most forests were surrounded by purlieus, that is, territory which had been disafforested. officers called rangers patrolled this debateable territory to drive back the errant deer, and whilst the purlieu-man (namely, the freeholder therein) might hunt on his own lands, he must call off his dogs if the beast once touched the forest. and every three years there was a special drift of the forest, which was a sort of census of the venison. a man taken _with the manner_ (main ouverte), that is, in the act of doing for the deer, was attached without bail. the offender might thus be caught red-handed in four ways:--( ) in _dog-draw_ he was chasing a wounded beast with hounds; ( ) in _stable-stand_ he was drawing his bow in ambush; ( ) in _back-bare_ he was carrying off his quarry; ( ) in _bloudy-hand_ he bore the red marks of his spoil. divers statutes put a yet keener edge upon the common law, as that under henry vii., whereby hunting in the forest at night with painted vizards was made a felony. and what of the dogs? the forest freeholders might keep mastiffs for the protection of home and homestead; but a court of regards was held every three years for their lawing or expeditation. thereat your mastiff was made to place one of his paws upon a billet of wood, "then one with a mallet, setting a chisel of three inches broad upon the three claws of his forefoot, at one blow doth smite them clean off." other dogs of any size were summarily banished the precincts. royalty was ever jealous of these rights. a fee-buck and a fee-doe were allotted to every verderer yearly (but these were but wages in kind); and every lord of parliament going or returning through the forest, on summons from the king, might take one or two beasts, but if no forester was at hand, he must sound his horn, lest the kill might seem done in secret. but all the king's horses and all the king's men could not quench english love of sport. robin hood and his merry band are but the glorified types of a very multitude who chased the deer night and day, for the forest stretched mile after mile over hill and dale, and the tall deer were fair to look on, and the taste of their flesh was as sweet to the wanderer and the outlaw as to the noble or the monarch; and the law, albeit cruel, was weak, and a touch of danger but gave zest to the pursuit. to take a later instance, was not shakespeare himself the most illustrious of poachers? not on such rovers but on the poor hard-working folk within the regard did the forest laws press with cruel weight, and yet old manwood highly extols their sweet reasonableness--"the king," he says, "wearied with his anxious care for the weal of his subjects, is given by law these forests that he may delight his eye at sight of the vert, and mind and body by the hunting of the wild beasts," and so he finds it in his heart to regret that in his day the forests were somewhat diminished. and since the sovereign's good is now the peoples' good, we may agree with him, though not for the same reason. par nobile fratrum john doe and richard roe old english law being full of fictions, had pressing need ever and anon of imaginary characters to play imaginary parts. sometimes a name was picked at random from the street, and smith, you hear without surprise, was in great request, or, as those shadows came and went in couples, you find richard smith as often as not paired with william styles. but your ancient scribe lusted after quaintness. he loved a jingle, so names like john den and richard fen--rare in actual life--peopled his parchment, and strove for mastery in his mock combats. but his prime favourites were doe and roe, nor would he raise den or fen or any other ghost, excepting he had need of more than two. here is a simple instance of their use. in early times a man who commenced an action had to give surety that he would go on with it; nowadays, if he discontinue, he must pay the costs of the other side, but costs, incredible as it may sound, were not always the necessary shadow, or perhaps the substance, of law; and hence the need for the pledge. under edward iii. the practice went out of use, but the form of it, as legal forms are apt to do, lingered on for centuries in this style:-- _pledges of prosecution_ { john doe. { richard roe. in the old action of ejectment the pair were most active. so strange were their gambols that even the lay world was impressed. in the early years of victoria john and richard were common butts of popular satire. nothing seemed more gratuitous, more idly superfluous; but, turn to their history, and you find how important and how serviceable were the parts they once played. one must begin far back. in early feudal times the cultivator of another's land was either a serf or a person of no importance, holding at his lord's will. the tenant's position improved with the times, leases were granted, and if their conditions were broken, a writ of covenant, as the form of action was called, secured him in possession, and gave him damages for his wrongs. but this action lay, as the technical term is, between the original parties alone; so that if he were turned out by a complete stranger, or by a person claiming through another grant of the same landlord, his remedy was merely pecuniary. in the time of henry iii. a writ was invented giving him full protection against anyone interfering under colour of another lease from his lord: but the case of an ouster (or dispossession) by an utter stranger was not adequately provided for until the beginning of edward iii.'s reign, when the writ of _ejectio firmæ_, or ejectment, was adapted from the proceeding in trespass. it called upon the wrong-doer of every species to show why, "with force and arms," he had entered on and taken possession of the plaintiff's land. but, again, the result was only money damages: so that he was driven for relief to the equitable jurisdiction of the chancellor, who, by injunctions and so forth, secured him in, or restored him to, possession of the very land itself. presently the common law courts took it ill that so much of their legitimate business should go elsewhere; and, at the end of the fifteenth century, they allowed the term itself, as well as damages for the ouster, to be recovered under a writ of ejectment, and this remedy was held proper against every species of wrong-doer. and if, not the tenant, but the landlord himself, were deprived of his property? or, if anyone not in possession claimed a piece of land as his freehold? these forms of procedure were not available, since they were personal actions, and a claimant to the freehold must proceed by a real action. these last were in early times the most important of all. but their forms were numerous and varied (the assizes of _morte d'ancestor_ and _novel disseisin_, as they were called in old law french, were two of the best known), and their cumbersome and complicated technicalities were cause of much expense, irritation, and delay. at last it occurred to some ingenious, though forgotten, jurist so to twist this writ of ejectment, which had all the last improvements, as to make it available in an action for the recovery of the freehold. that was done in this way. a. was (let us suppose) the legal and rightful owner of an estate occupied in fact by b.; he entered on the land with c., to whom he, then and there, signed, sealed, and delivered a lease for the property in question; to them so engaged entered b., attracted by their manoeuvring, and speedily kicked both into the boundary ditch. here were all the materials for the action of ejectment, since c. might truly declare himself dispossessed _vi et armis_ by b. from land whereof he held a lease from a. in this action the main point evidently was: had a. a right to grant c. the lease? in other words, was a. the real owner of the land? if the jury said "yes," then judgment for possession followed for c., who, being merely the nominee of a., forthwith passed the property over to him. improvements were speedily suggested. actual ejection was like to prove unpleasant, so a. and c., instead of ostentatiously soliciting b.'s attention, took with them a confederate d., who, in a friendly and affable manner, performed the function of a chucker-out, and this casual ejector (as they named him) was made nominal defendant in the action wherein c. was nominal plaintiff. lest b. should be condemned unheard, it was provided that the casual ejector must give him notice of the proceedings, whereupon he was let in to defend in place of d. this device was a brilliant practical success. real actions pure and simple fell speedily into disuse, though it was not till that, with a few exceptions further tampered with in , they were legally abolished. the commonwealth was a time of legal as well as political change. the lord protector had, with quaint emphasis, described the court of chancery as "an ungodly jumble," and rolle, his lord chief justice of the upper bench, before and since known as the king's bench, laid violent hands on the action of ejectment. "what," urged he in effect, "was the use of actual entry, lease and ouster? let all be held as done: so that the court may apply itself at once to the real question at issue." finally, the action was in name _doe_ against _roe_, but the writ as a mere form was suppressed, and the first step was the declaration and notice to appear, both served on the real defendant or his tenant. the declaration stated that the land in question had been demised by a. (the real claimant) to john doe; but that richard roe had entered thereon by force and arms and ejected him, "to the great damage of the said john doe, and against the peace of our lord the now king;" and that therefore he brought this action. to this there was appended a letter, signed "your loving friend richard roe," addressed to b., the real defendant, and informing him that the sender, hearing that he claimed the land, must now tell him that he (richard), being sued "as a casual ejector only, and having no title to the same," he advised him (b.) to enter appearance as defendant, "otherwise i shall suffer judgment therein to be entered against me by default, and you will be turned out of possession." now, to succeed in his action, the plaintiff must clearly prove four things--title, lease, entry, and ouster; and the three last he could not do, since they never happened. this little difficulty was got over by a consent rule: the courts allowed b. to take richard roe's place as defendant, only on condition that he would confess those three things to have happened which never did happen: whereupon the real question of title alone remained. so strangely had this action varied from its first use--which was to recover damages for wrongful possession of land--that in the result these were nominally estimated at a shilling; and if a. really wished to make b. disgorge the spoils of possession, he sued him again for mesne profits. although the action was nominally "_doe_ against _roe_," the cases are usually cited as "_doe on the demise of a._" (the real plaintiff) "against b." (the real defendant), and whilst john and richard were the favourite styles, we have occasionally "_good title_ against _bad title_": a comically impudent begging of the question at issue. if the outside public mocked these venerable figures, _par nobile fratrum_, the suitor did so at his peril. a certain unitt (_temp._ george i.), being served with a copy of a declaration in ejectment, "pronounced contemptuous words on the delivery of it," and the judges in solemn conclave held that he was in contempt, and was deserving of punishment therefor. so the masque of shadows went on till , when the common law procedure act removed an obstacle which lawyers had walked round for centuries, and consigned john doe and richard roe to that limbo where so much legal rubbish lies buried under ever-thickening clouds of dust. sanctuary your old-world lawyer was an ardent, if uncritical, antiquary. he began at the beginning, and where facts ran short his fancy filled up the blank. in discussing sanctuary he started with the biblical cities of refuge. he had something to say of romulus and the foundation of rome. geoffrey of monmouth supplied him with the name of a sovereign--dunwallo molmutius to wit--who flourished in druidical britain (b.c. it was said), under whom cities and even ploughs were arks of refuge for the despairing fugitive. it might have been objected that the ancient britons had neither ploughs nor cities; but such criticism was not yet in the land. we touch firmer ground in the centuries immediately preceding the conquest. in early english legislation churches safeguarded the criminal from hasty vengeance, and so allowed time to settle the money compensation payable for his offence. sanctuary was among the privileges that the conqueror conferred upon his foundation of battle abbey--one of many cases wherefrom the norman lawyers built up a system for mediæval england. that system was not always consistent or clear, but its main outlines were as follows:--sanctuaries were of two kinds--general, as all churches and churchyards; special, as st martin's le grand and westminster. no doubt these last had originally also a religious sanction. such places were twice consecrate: pope and king, the canon and the common law united in their favour. they protected felons, but not those guilty of sacrilege or (some held) of treason. they were not properly for debtors, whose reception was nevertheless justified by an ingenious quibble. imprisonment might endanger life, and therefore (so the learned argued) the runaway debtor must be received. a man took sanctuary thus--having stricken (let us say) his fellow, he fled to the cathedral and knocked (with how trembling a hand!) at the door of the galilee. over the north porch were two chambers where watchers abode night and day. on the instant the door swung open, and had scarce closed behind the fugitive when the galilee bell proclaimed to the town that another life was safe from them that hunted. then the prior assigned him a gown of black cloth marked on the left shoulder with the yellow cross of st cuthbert, and therewith a narrow space where he might lie secure of life, though ill at ease. so it was at durham. at westminster the sanctuary man bore the cross keys for a badge, and walked in doleful state before the abbot at procession times; and there were, no doubt, countless variations. a phrase of the time reveals how close the watch was now and again. under edward ii. it was complained that the sanctuary man might not remove so much as a step beyond the precincts, _causâ superflui deponendi_, without being seized and haled to prison. he was fed and lodged in some rough sort for forty days, within which time he must confess his crime before the coroner at the churchyard gate, and so constitute himself the king's felon. then he swore to abjure the realm. the coroner assigned him a port of embarcation (chosen by himself), whither he must hasten with bare head, carrying in his hand a cross, not departing, save in direst need, from the king's highway. he might tarry on the shore but a single ebb and flow of the tide, unless it were impossible to come by a ship, in which case he must wade up to his knees in the sea every day. he was thus protected for another forty days, when, if he could not find passage, he returned whence he came, to try his luck elsewhere. he who refused to confess and abjure was not driven forth, but if, after much spiritual admonition, he still refused to conform, he had neither meat nor drink given him, and so was ended, if not mended. a man unjustly deprived of sanctuary could plead the right before his judges. it was a declinatory plea, and must be urged before he answered as to his guilt or innocence; it availed him nothing to do so after, for he was strung up forthwith. this system, however harsh, had two very plain advantages. it was a short and easy method with a rascal, and it powerfully made for scientific accuracy in pleading. if a fugitive were caught and condemned ere he "took westminster," as the town phrase ran, it was no advantage for him to escape on the way to execution, inasmuch as he was promptly haled forth to the gallows. a curious case in the eighth of edward ii. perplexed the ancient student. a woman was condemned to death, but a jury of matrons had no doubt as to her condition, and she was reprieved. she escaped to sanctuary before the arrival of the hangman's cart, and when the gaoler dragged her out, the judges bade him put her back again, whereat the learned shook their heads, opining that hard cases make bad law, and the jade should have swung like other folk. on the whole the privilege was strictly respected. for instance, the king's justices were wont to hold session in st martin's gate. they sat on the very border. the accused were placed on the other side of the street; a channel ran between them and their judges, and if they once got across _that_ they claimed sanctuary, and all proceedings against them were annulled. and one sees the reason why perkin warbeck took such care "to squint one eye upon the crown and the other on the sanctuary" (as bacon curiously phrases it); yet the great case of beckett is there to show that nothing was absolutely sacred in these violent years. nor does it stand alone. in , jeffrey, archbishop of york, and son of henry ii., was seized at the altar of st martin's priory, dover; and dragged, episcopal robes and all, through dirty streets to the castle: this, too, by order of william longchamp, bishop of ely, and papal legate. in , archbishop sudbury complained in parliament that one robert hawley had been slain at the high altar even while the priest was saying a mass. it was rumoured indeed that one thurstian, a knight, chasing a sanctuary man with drawn sword, was of a sudden stricken with grievous ailments. but this and other like stories did not deter the citizens of london (_circa_ ) from assembling at supper time in a great crowd, and dragging forth a soldier who had escaped on the way from newgate to guildhall, where he was being taken for trial. in another case (_temp._ henry vi.), where a youth had taken sanctuary after having foully slain a kind mistress, the good women about st martin's broke in and despatched him with their distaffs. of those who took sanctuary to good purpose the most famous was elizabeth, widow of edward iv., who, in , registered herself a sanctuary woman in westminster, and there sat, in sir thomas more's phrase, "alow in the rushes." but you have read the tragic story in shakespeare. and in a later age "beastly skelton" (as pope will have him), from that same westminster safely lampooned the mighty wolsey, though for that he needs must live and die there. to catalogue the evils of the sanctuary system were to show lack of historical sympathy, nay, even of humour. the former days were not as these; it had its place with the shrine and the pilgrimage, the knight errant, and the trial by ordeal in the strange economy of a vanished world. as the times grew modern its practical inconvenience was felt for the first time. yet the occasion of the first assault on the privilege of sanctuary was one where the benefits were conspicuous, and the assailant had the worst of motives. it was the case just noted of edward iv.'s widow; she had the young duke of york as yet safe with her. her enemies were at a loss for the moment, and buckingham, then the sworn ally of richard of gloucester, took occasion in the privy council to attack her place of refuge. "there were two chief plague-spots in london," he snarled: "one at the elbows of the city (westminster), the other in the very bowels thereof (st martin's le grand). these places were the refuge of theeves, murtherers, and malitious, heynous traytors! nay," he added, "men's wives ran hither with their husbands' plate, and say they dare not abide their husbands for beating," with more to the same effect. had not elizabeth yielded, westminster might have witnessed a violation as affecting as that of canterbury. under henry viii. the old order was broken up, and sanctuary law, like much else, was changed and amended again and again. first, all special places save wells, westminster, and six others, lost the privilege. divers classes of criminals --as traitors, and pirates (and afterwards) egyptians--were formally rendered incapable of its enjoyment. before the sanctuary man abjured the realm he was burned on the crown of the thumb "with the signe of an a," and if he did not depart on the instant, he had no further protection. but it occurred to over-anxious legislators that such a fugitive might carry beyond seas precious hints of the mysteries of trade or politics, or that, making as if for the nearest port, he might but proceed to infest another place. so he was ordered to abjure the liberty of the realm, but not the realm itself; and being branded, was confined under a governor in one or other of the sanctuaries. whenever he ventured forth--as he might in the daytime--he must wear the prescribed badge of the refuge. he dare carry no weapon save a meat-knife, and that but at meal-times. he must likewise answer to the daily roll-call. if he committed another felony--and crimes done _sub spe redeundi_ had been a sore grievance of late--he was to lose his rights. the governor was empowered to hold courts for debt and minor offences within his bounds. and so "the sanctuary person abjured," as the tudor lawyers phrased him, spent the last days of his evil life. i need not dwell on minor tinkerings of the system under henry's children. in the statute james i., c. , s. made a legal end of the right of sanctuary. the last of our story is not yet. certain places still assumed the right of giving shelter against civil process. when the bailiffs invaded the liberty, the whole population forthwith set on, and pommelled them so lustily that they were fortunate if they escaped sound in limb. the precincts of whitefriars and the savoy were the worst places in london. the first, renowned in slang, nay, in literature, as alsatia, because (some explained) it neighboured the temple on the east, as alsace did france, was a base and villainous bohemia. ram alley (now mitre court), a local lombard street, salisbury court (now salisbury square) were its chief ways, though probably all between fleet street and the river, which was not the temple, held of this lawless republic. a bully or bravo, or squire of alsatia was a cant name for a penniless and violent fellow of the time. he is pictured by otway in his _soldier's fortune_ with flopping hat pinned up on one side, with a tawdry weather-beaten peruke, dirty linen, and a long scandalous iron sword jangling at his heels. the sheriff with the _posse comitatus_ did on occasion raid alsatia, but his prey, if too weak to fight, had ever timely warning to escape by land or water to some other like burrow. _the fortunes of nigel_ tells as much of the place as the general cares to know, and there is much curious matter mined out by the zealous antiquary as to other like places of refuge in the capital. thus fullwood's, sometime fuller's rents, was related to gray's inn as alsatia to the temple. in the gentlemen of that ancient house so far forgot themselves as to engage in "pumping" some bailiffs who attempted to take goods from out the rents upon an execution. "they were charged with a body of thirty lusty bailiffs," and a "strong ryot" ensued. possibly they recollected that their most illustrious fellow-member, "broad-browed verulam," had taken refuge there some sixty years before, a circumstance which gave my lord coke occasion to "gall the kibe"--as indeed he never lost any chance to do--of his great contemporary. then there was the mint in southwark, whereto an ex-poet laureate, "poor nahum tate," as dr. johnson calls him, was driven by extreme poverty. pope's cruel satire pictures it half grub street half bedlam, the last refuge of the hack and the poetaster. the clink and deadman's place are now forgotten, whilst baldwin's gardens and the minories have a more commonplace reputation. about a century after james's act, parliament again interfered, and professed to strip the "pretended privileged places" of every shred of exemption, but it required two other statutes, the geo. i. c. , , and the geo. i. c. , , to make the law's process as effectual there as elsewhere. trial by ordeal before the conquest, and for long after, local justice in england was administered by two courts--that of the hundred and that of the shire. the first nominally consisted of the freeholders of the district, but the real business was done by a committee of twelve. the second was made up of the chief men of the district, and representatives from each township; but here, again, the work was left to a select few. if a man were charged with (say) theft before either court, he was tried in a fashion vastly different from that obtaining to-day. the complainant was sworn on the holy relics: "by the lord i accuse not this man either for hatred, or for envy, or for unlawful lust of gain." this solemn accusation made out a _primâ facie_ case against the suspect, who instantly rebutted oath with oath. "by the lord i am guiltless, both in deed and in counsel of this charge." then he produced twelve compurgators, who swore by the lord, "the oath is clean and unperjured which this man hath sworn"; then the prisoner went free. these compurgators were witnesses to character. their testimony had no reference to the particular facts of the case; they simply alleged their belief in accused's innocence, but sometimes their oath "burst" (as the curious technical phrase ran), that is, he could not find compurgators, or those he produced said little good of him; or he was a stranger of whom nothing was known; or a welshman whose veracity has never been an article of faith; or the accused was caught with his booty; or was a woman; or the charge was peculiarly odious, as treason, or witchcraft; then in all these cases there was an appeal to the _judicium dei_, the creator was called upon to prove beyond dispute the guilt or innocence of the accused. trial by ordeal was more ancient than the church itself. there are traces of it in the old testament; it is discussed in great detail in the laws of manu; a famous passage in the _antigone_ (verses - ) reveals it as well known to the greeks, and before augustine came, or st columba preached, it prevailed in some form or other in britain. yet the higher ecclesiastical powers continually thundered against it, and finally brought about its disuse. there were several varieties, but many forms were common to all. first, there was the ordeal of cold water, chiefly reserved for the baser fellow. as a preliminary the accused submitted to a fast of three days, during which he was watched by a priest, then he was taken to church to hear mass; and was adjured by father, son, and holy ghost, by the gospels and relics of the saints, by everything held most sacred, not to partake of communion if he were guilty. next came the _adjuratio aquæ_, wherein the water was enjoined to cast him forth if he were guilty, but to receive him into its depths if innocent. and now, having been stripped, he kissed the book and the cross, was sprinkled with holy water and was cast in, to float if he were guilty, to sink if he were not. but there was the rub--how about death by suffocation? sir james stephen suggests that it was all a mode of happy despatch! or (one fancies) it might be an elementary form of the famous verdict "not guilty, but don't do it again," with the chance of doing it again effectually provided against. on the other hand, a recipe for immersion in a thirteenth century ms. of the monastery of becca reduces the proceedings to the level of farce. the hands of the accused were tied, and a rope was put round his waist; "and let a knot be made in the rope as high up as the longest hair of the man's head will reach, and then in this way let him be gently lowered into the water; and if he sinks down to the knot, let him be pulled out as innocent; if not, let him be adjudged guilty." how _not_ to sink under such conditions? the practice of testing witches by throwing them, securely tied, into the nearest pond was clearly a survival of this form of ordeal. in the ordeal by hot water the accused, plunging his hand to the wrist in the boiling fluid, brought forth a stone suspended therein by a cord. (this was the single ordeal, and it became the triple when the plunge was up to the elbow.) the arm was done up in bandages not to be removed till after three days; if the scald had healed the man was innocent, if it still festered he was guilty. in the ordeal by hot iron, a piece of red-hot metal was carried a distance of nine feet; it was then dropped and the hand was bandaged as already set forth. a knight had to thrust his fist into a glowing gauntlet; another form was a walk with naked feet over a sequence of red-hot ploughshares. we have a picturesque circumstantial and absolutely untrustworthy monkish account of how emma, mother of edward the confessor, being suspected of an all too intimate acquaintance with alwyn, bishop of winchester, underwent this trial. she took nine steps for herself and five for the bishop, fixing her eyes the while on heaven. "when shall we reach these ploughshares?" queried she. how agreeable a surprise to find her little promenade already past and done with! no need to swathe _her_ feet, the red-hot iron had marked them not at all! the last mode was the _corsnæd_, or cursed morsel--a piece of barley-bread (or cheese), one ounce in weight. this "creature of sanctified bread" was adjured, in terms terrible enough to make the sinner quake, to stick in the guilty throat, and cause the guilty jaws to be clenched and locked up. if in spite of all it went softly down, who dared to refuse belief in the man's innocence? it was chiefly for the clergy, and from every point of view must have been the most agreeable of the three, though a legend as untrustworthy as that of emma ascribes to it the death of earl godwin, father of harold. as he sat at meat with edward the confessor, the king brought up an old scandal about his brother's murder, "may god cause this morsel to choke me," passionately exclaimed the earl, "if i am guilty of the crime!" edward blessed the bread; godwin made an effort to swallow, choked and died. "take away that dog," said the monarch in what would seem an outburst of savage glee. this was on april th, , thirteen years before the conquest. godwin in truth died of a fit. it soon was the policy of the monkish chroniclers to write down the national party of which he had been the head, a fact which explains the fable were it worth serious examination. more interesting to note the survival of the rite in the still current rustic formula, "may this bit choke me if i lie!" if the ordeal proved a man guilty, the punishment was fine, death or outlawry, but even if he escaped, the assize of clarendon ( ) ordered that, in certain cases, he should abjure the realm. by that time compurgation was gone; in the lateran council issued a solemn decree against trial by ordeal; and soon after it had vanished from english law. there is a curious reference to it in the state trials as late as . john govan, a jesuit priest, was indicted in that year at the old bailey for an alleged share in the popish plot. with some hesitation he claimed the right of trial by ordeal as an ecclesiastical privilege of a thousand years' standing, but scroggs and north peremptorily refused to listen to his plea. "we have no such law now," said the latter. sir james stephen assures us that the formula, "by god and by my country," wherein, till , a prisoner must answer the question how he would be tried, sets forth a memory of it. of the customs akin to trial by ordeal only one can find mention here. it was held that if the murderer touched, nay, even approached, the body of his victim, the wounds gushed forth blood, thus in _richard the third_, "dead henry's wounds" are seen "to open their congealed mouths and bleed afresh" as gloucester draws near the bier. and according to one of the picturesque legends of english history, when richard the lion-heart encountered at fontevrault his father's body, the blood gushed from the nostrils of the dead king, a proceeding which, as richard's offence was at the worst but unkindness, showed a somewhat excessive sensibility on the part of the royal clay. the oddest and latest case of all is from scotland. in philip stanfield was tried for parricide at edinburgh; one count of the indictment stated how his father's body had bled at his sacrilegious touch. the lord advocate, sir george mackenzie of rosehaugh, the "bluidy mackenzie" of covenanting legend and tradition, conducted the prosecution, and philosophic and cultured jurist as he was, he yet dwelt with much emphasis on the portentous sign. there was no lack of more satisfactory if more commonplace evidence, and young stanfield assuredly merited the doom in the end meted out to him. wager of battle judicial combat is a fascinating yet perplexing subject, having many side-issues whereupon the writer must sternly refrain. the case of david and goliath was gravely urged (a.d. ) as a precedent to pope nicholas i., and by him disdainfully put aside. the thing itself was unknown in roman law, though the old legend of the horatii and curatii was part of its lore. but it was of the essence of chivalry, and the duel and the prize-fight were its legitimate offspring. "where the hazel grew," so mr george nelson, our chief modern authority, picturesquely defines its region, but our attention here must be limited to england. that it was _not_ with us before the conquest moves bishop stubbs to something of the scholar's mild amazement. the normans, it seems clear, brought it with them from their continental home. a native accused of a serious crime by one of the invaders was tried by ordeal of battle, but a norman had choice of the oath as well, and it was also used to decide which of the claimants should have a disputed piece of land. after the legal reforms of henry ii., it became an alternative proceeding in a limited class of actions. these were the writ of right (the most solemn method of trying title to land), accusations of murder, and treason. it had place only in appeals, in actions, that is to say, brought not in the king's name, but by an interested subject here called the appellor, against whom the accused or appellee might offer to prove his innocence by his body. the appellor must accept the challenge unless he were maimed by age or wound. likewise he could "oust the battle" (_i.e._ prove this mode of trial improper) if the accused were caught red-handed. the parties exchanged gloves, and gave pledges or wads (_vadiare bellum_); whence came wager of battle, afterwards the technical term for the whole process. in civil cases, if the litigants came to terms, the judge exacted a fine, called the concord, while he who fought and lost must pay the mulct of recusancy. in criminal matters he who resisted not till the stars shone forth was branded as recreant or craven and was forthwith strung up, and all his goods were declared forfeit. the charters of exemption purchased from overlord or king show how hateful the system was to the old english citizen. henry i. enacted for a consideration that no londoner should do battle, and in due course the men of winchester, lincoln, and northampton obtained the like privilege. the story of leicester is worth the telling. in the time of henry i. earl robert of mellant ruled the town. it chanced that two burghers, nicholas and jeffrey, waged battle on a plea of land. for nine long hours they mauled each other with varying fortune, when one of them took to flight, and staggered, all unwitting, on the edge of a pit. the other saw his danger, and remembered that they twain were kinsmen. "'ware o' the pit," he shouted; "turn back, lest thou fall therein." the spectators so lustily roared their approval, that the earl heard it in his castle, and he, after due enquiry, granted that in time coming twenty-four jurors of leicester should determine all civic disputes. one strange product of trial by combat was the approver: a rascal who turned king's evidence, and fought with his late companions. sometimes he accused other malefactors, and if he came off victor in five combats he was released, and banished the country. this system fell into gross abuse, for the approver, greedy of freedom or hush-money, appealed honest men right and left. in the chronicle of william gregory the skinner ( ) we have an account of a duel fought by one thomas whitehorne, a criminal, caught in the new forest, and lodged in prison at winchester, where he remained for about three years, fighting ever and anon. "and that fals and untrewe peler (= appelar) hadde of the kynge every day d. ob." at last a proposed victim retorted the lie in his throat, and said that "he wold prove hyt with hys handys and spende hys lyfe and blode a-pone hys fals body." then the judge "fulle curtesly informed this sympylle man" that "he and the peler moste be clothyed all in whyte schepys leter." also each must have a stave of green ash, three feet long, the point thereof "a horne of yryn i-made lyke unto a rammy's horne;" and if these ash-plants broke, then they "moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys." moreover, they must strive fasting on the "moste sory and wrechyd greene about the town;" but "huyt ys to schamfulle to reherse alle the condycyons of thys foule conflycte." and we must follow gregory's precept rather than his example. the appellee, asking for inquiry as to his character, was reported "a fyscher and tayler of crafte," and therewith the "trewyste laborer and the moste gentellyte." the peler, with brazen insolence, offered _his_ character for inspection. there was much dubiety as to where and how he had lived when at large, but "hange uppe thome whythorne" was the response of every reference he tendered. at last the day came. the appellee, as became an innocent man, told his beads, and prayed long and earnestly, and wept full sore, and all present prayed for and with him. the "fals peler" scoffed thereat. "thou fals trayter," yelled he; "why arte thou soo longe in fals bytter beleve?" the defendant's sole answer was so lusty a thwack that his staff flew all to pieces. thereupon the peler's stave was taken away from _him_; "ande thenn they wente togedyr by the neckys," so using teeth and fist, "that the lethyr of clothing and fleshe was alle to rente in many placys of hyr bodys." it fared ill at first with the "meke innocent." his opponent had him down on the ground, and near choked the life out of him. but presently the meek one got up on his knees, and (the combat not being under queensberry rules), "toke that fals peler by the nose with hys tethe, and put hys thombe in hys yee, that the peler cryde owte ande prayde hym of marcy, for he was fals unto god and unto hym." the peler's subsequent record is of the briefest, but, one is thankful to add, of the most edifying description. "and thenn he was confessyd and hanggyd, of whose soule god ha' marcy." amen. "_victus est et susp_," so for epitaph wrote the official scribe against his name. and the exchequer parchments knew him and his "_ d. ob. per diem_" no more. the champion, now but the shadow of a name, was a nobler offshoot of the system. originally a witness, he was finally indispensable in civil cases wherein--for a legal reason not here to be discussed--the parties themselves must not engage. he was the proper advocate for churchmen, for women, and for the crown; and his last appearance for royalty was in , at the coronation of george iv. the dymocks have held the manor of scrivelsby in lincolnshire for centuries by this tenure, and possibly their representative claimed a part in the pageant on the two subsequent occasions, but to have him ride up westminster hall in full armour and clang his gauntlet on the floor (as he did of old) would have savoured too much of drury lane pantomime for the taste of a cynical age. the champion's dress and bearing were minutely ordered. his head (_e.g._) was shaven, but whether this was to give no hold to his foe, or to fulfil some old superstition, is still in debate among the learned. in the end he was usually a hireling, which fact may very well have accentuated the absurdity of the system. at any rate, towards the close of the thirteenth century it was only kept alive by the approvers. then chivalry came with its treason duel, and by the time of richard ii. the chivalry court was in full swing. its forms, mainly imported, were after this wise. upon the accusation and the exchange of gloves, time and place were assigned for the duel, and here the lists were set and staked. there were two gates, and hard by each a pavilion--one eastward for the appellant, and the other westward for the defendant. to the south was the judge's seat; and right and left were benches for the high-born, while the commons were made free of the unenclosed field. near the judge an altar was decked with relics; and not far off there stood a gibbet and a scaffold. men-at-arms were stationed between the palisades. there were heralds in gay tabards, a priest in full canonicals stood at the altar--but it were wearisome to enumerate all the officials. the trial was held not less than forty days after the challenge; and the time being come, the heralds demanded silence; and the appellant was summoned three times by voice and by sound of trumpet. as he marched forward he was addressed by the constable, "who art thou, and wherefore comest thou armed to the door of these lists?" his answer given, he was taken to his pavilion, and afterwards was made to swear on the altar that his cause was just. the other did in like fashion. then the pavilions were replaced by chairs whereon the combatants might take an occasional rest. napkins holding a loaf and a bottle of water were hung on opposite ends of the lists. the marshal cried three times "_laissez les aller_," and the pair went at it. far better death than defeat. if either yielded, the marshal cried "hoo," to declare the combat at an end. then the wretch was taken to the scaffold on which his shield was hung reversed, his sword was broken, and his spurs hacked from his heels. he was now taken to the church where a mass for the dead was sung over him, and at last he was haled to the gibbet where the hangman claimed his prey. this is the form of judicial combat that caught the fancy of our great writers. in chaucer's _knight's tale_ there is the elaborate set to between palamon and arcite. in shakespeare's _richard ii._ there is the fiasco of norfolk and hereford. in _lear_ we have the fight to the death between edmund and edgar, and "every schoolboy knows" the templar's duel in _ivanhoe_. chivalry passed, yet not the half-forgotten wager of battle. a claim so to determine a civil dispute was made in , to the great perplexity of the lawyers. elaborate preparations were made, but the case was settled in other fashion. under james i. bills were introduced into parliament to abolish it, but they fell through, and in , at the beginning of the north american troubles, when it was proposed to punish the new englanders by depriving them of the appeal of murder, dunning, afterwards lord ashburton, described it as that great pillar of the constitution. burke concurred, and the motion was lost. perhaps they have it yet in the states, at least dr cooper, in editing, in , the statutes at large of south carolina, treats wager of battle as an existing fact. in england the end came in dramatic fashion. in may mary ashford--a young woman of langley in warwickshire, was found drowned under suspicious circumstances. a certain abram thornton was suspected of the murder; he was tried and acquitted, but there was much evidence against him, and he had played so ill a part in a horrid though vulgar tragedy that the relatives of the dead girl cast about to carry the matter further. now, an old act provided that no acquittal by jury should bar an appeal of murder, so william ashford, mary's brother, appealed thornton in the court of king's bench. he was attached, and when called upon pleaded "not guilty, and am ready to defend the same by my body." he then threw down his glove on the floor of the court. it was a curious turn; for no doubt men thought that he would put himself upon the country, and stand a second trial by jury. there was much legal argument (set forth at great length in the reports of the time), for the prosecuting counsel tried hard to "oust his battle," but to no purpose, and in the end thornton was set free. in , two years after the drowning of mary ashford, the appeal of murder act ( geo. iii. c. ) abolished the last remnant of wager of battle. the press-gang smollett, galt, marryatt, and the other naval novelists, not those well-nigh forgotten dry-as-dusts whose works encumber the back shelves of our law libraries, are the authorities for the press-gang of popular imagination. the sea-port invaded, the house surrounded at dead of night by man-o'-war's men with stout cudgels, and by naval officers with cutlasses; the able-bodied mariner knocked down _first_ and _then_ bid stand in the king's name; the official shilling thrust into his reluctant palm before he is hauled off in irons--who has not devoured with joy this wild romance, with its tang of the sea, its humour and rough frolic, the daring and exciting prelude to much more daring and more exciting achievements? but how far can we trust these entertaining authors? and what was the legal status of the press-gang? we are like to get nearest the truth in a law case with its official documents and sifted evidence and considered decision. the trial of one alexander broadfoot for the murder of one calahan is the best available. in the april of h.m.s. _mortar_ lay at anchor off bristol. the captain held a warrant of impressment, but he could delegate his authority only to a commissioned officer, whose name must be inserted in his order; and the only one aboard was the lieutenant. on the th the ship's boat was sent down channel, _with neither captain nor lieutenant_ to look for men. she had no luck till evening, when she came across the _bremen factor_, a homeward bound merchantman, still some leagues from port, but beating thitherward up channel. the man-o'-war's men having boarded her, were proceeding to search the hold, when they were confronted by broadfoot, the boatswain, armed to the teeth. he demanded what they came for. "for you and your comrades," was the plain and honest, though no doubt irritating answer. "keep back, i have a blunderbuss loaded with swan shot," said broadfoot, levelling his piece. the press-gang stopped. "where is your lieutenant?" he went on. (evidently this boatswain knew a little of the law.) "he is not far off," was the evasive answer, showing that the man's acts and words had impressed his assailants. did broadfoot grasp the fact that they were trespassers? at any rate, he let fly, killed calahan on the spot, and wounded two others. he was tried at bristol, and acquitted of the capital charge--for the action of the man-o'-war's men was plainly irregular; but he was found guilty of manslaughter, for that he had used more force than was necessary. another case is that of robert goldswain, a small freeholder at marlow, in bucks. in the march of he was a bargeman on the thames, engaged in carrying timber to the king's yard; with a protection order from the navy board to him by name so long as he should continue in that service. but these were troubled times, the french had just declared for the revolted american colonists and our war-ships were frightfully undermanned; so, on the th of march, the admiralty fixed the next night for a general press on the thames, with direction to seize--despite protection orders--on all sailors and watermen whatsoever, saving and excepting merchant skippers and men exempted by special acts. goldswain was in the net, and was passed from ship to ship down to the nore, where his captors were overtaken by an order from the court requiring a return to a writ of habeas corpus issued on his behalf. counsel's argument for the admiralty--that the device of first issuing protection orders to lure sea and watering men from their lurking-places, and then pouncing on them under the authority of a general press, was excellent--did not commend itself to the court, which, in the battle over poor goldswain's body, suspected some antagonism between the admiralty and the naval board. in the end my lords gave way, and marlow received again her ravished freeholder. during the strain and stress of our eighteenth century war-making, when we had every need of seamen to man our battle-ships, and could not afford the market price for them, there was much impressment, and through frequent appeals to the courts the law on the subject was exactly determined. it was a prerogative of the crown, a remnant of larger rights which at one time took in soldiers and ships, or their equivalent in cash (hampden's famous trial scarce needs mention); it could not be justified (it was allowed) by reason, but only by public necessity. on command of the king all sea and river-faring men were liable to naval service in time of war. the right to impress was founded on immemorial usage, for, though given by no statute, it was recognised by many. it was so held on the authority of a case in queen elizabeth's reign: the sole customary exception was a ferryman; but merchant captains were in practice likewise allowed to go free. only in charles i.'s reign, when all the crown prerogatives were jealously overhauled, was there any serious questioning of its legality, but it was exercised by the commonwealth as well as by the monarchy. given up in fact some fifty years since, it has never been so in law. you find in horner's _crown practice_ ( ) a form of _habeas corpus ad subjiciendum_ for impressed men, with the comment that it is little needed now. of the enormous number of commissions and statutes relating to impressment, an example taken here and there must suffice. the acts express amazement and virtuous indignation at mariners unwilling to serve. one (_temp._ henry vii.) sets forth that such as are chosen, and have received their wages, shall, if they give leg-bail, be amerced in double, and go to prison for a year--when they are caught. another (_temp._ philip and mary) reproves the thames watermen who, in pressing time, "do willingly and obstinately withdraw, hide, and convey themselves into secret places and outcovers; and, after the said time of pressing is o'erpassed, return to their employments." after the revolution an attempt was made to establish a naval reserve by means of a voluntary register, and so do away with impressment, but this was a complete failure. then, to foster the coal and other trades, certain exceptions were granted; and still later, sailors in outward bound merchantmen were exempted because of the hardship inflicted on their employers (the hardship of the sailor impressed in sight of port after a long voyage was not considered). when a warship fell in with a merchantman on the high seas she impressed what men she would. british sailors found on board american vessels were hauled out forthwith, and this was one cause of the war of . press-gang stories, more or less authentic, are numerous. here are samples which serve to show that the searchers did not nicely discriminate between those who were and were not legally subject to impressment. a well-dressed man was seized. he protested that he was a gentleman of position. "the very boy we want," gleefully replied his captors; "for we've such a set of topping blackguards aboard the tender, that we wanted a gentleman to teach 'em manners." sham press-gangs for the black-mailing of honest citizens were common. in one case a couple had given all their money to go free, when the real gang coming up made booty of both parties, and had them aboard in no time. the quarrymen at denny bowl, sixty strong, were heard to brag in their cups what _they_ would do did the press-gang dare to molest _them_, whereupon "three merry girls" got into breeches, put cockades in their hats, took sword and pistol, and advanced, when the quarrymen ran like hares. and to conclude, there is the legend of the gang that raided "the cock and rummer" in bow street. they seized the cook. the customers, fearing for their dinner, or themselves, rushed to the rescue. long the strife hung dubious, when the constable (he ought to have been a bow street runner) stalked in. the gang, with a fine sense of humour, let the cook go, seized _him_, and away at a great rate, though not fast enough to get clear. sumptuary laws "act of parliament" is a term apt to mislead. to-day it is enforced by so powerful a machinery that practice conforms to precept; but in mediæval england much law was dead letter. statutes were often mere admonitions; they expressed but an ideal, a pious intention. this was specially true of the sumptuary laws, whereby the dress and food of the king's subjects were nicely regulated. if you turn over a book of costumes you find that man's attire has varied more than woman's. the sorts and conditions of men were marked by rigid lines. this fact was shown forth in their dress, and that again re-acted on their modes of thought and habits of life. "men's apparel," says edmund spenser, "is commonly marked according to their condition, and their conditions are often-times governed by their garment, for the person that is gowned is by his gown put in mind of gravity, and also restrained from lightness by the very unaptness of his tweed." of old time man's dress was rich and varied, but how to catch its vanished effect? in courts of justice there is still the splendid, if occasional, bravery of the judge. see the same man in private, gaze on divinity disrobed, and the disenchantment measures for you what is lost in the splendid garb of other days. in mediæval europe the church first condemned a too ornate appearance. thus, under our early norman kings, long hair was much in vogue. in bishop serlo, preaching before henry i. and his court in normandy, attacked this fashion roundly, compared his hearers to "filthy goats," and moved them by his eloquence to tears of contrition. he saw and seized that softer hour. descending from the pulpit he then and there clipped the polls of them that heard him till he must fain sheath his shears for lack of argument. this rape of the locks was followed by a royal edict against long hair. alas! for this story. rochester cathedral still bears the effigies of henry and maud his queen; each is adorned even as absalom, and time, whilst it has mauled their faces in cruel fashion, has with quaint irony preserved intact those stone tresses. two centuries pass ere the sumptuary laws proper begin. the edward iii. c. ( ) ordered that no man was to have more than two courses at dinner, nor more than two kinds of meat, with potage in each course; but on eighteen holidays in the year the lieges might stuff at will. next parliament common folk were forbidden to wear furs; but the edward iii. was the great session for such work, made needful (it was thought) by the sudden increase of luxury from the plunder of the french wars. some half-dozen acts prescribed to each rank, from peers to ploughmen, its wear; nay, the very price of the stuff was fixed; whilst all wives were to garb themselves according to their husbands' means--a pious wish, repeated a century afterwards, in an act of the scots james ii. the veils of the baser sort were not to cost more than d. apiece: embroidery or silk was forbidden to servants, and these were to eat of flesh or fish but once a day. cloth merchants were to make stuff enough, and shopkeepers to have stock enough, to supply the anticipated demand. such apparel as infringed the statute was forfeit to the king. the knight's dress will serve for sample of what was required. it was to be cloth of silver, with girdles reasonably embellished with silver, and woollen cloth of the value of six marks the piece. under richard ii. monstrous sleeves were much affected. a monkish scribe inveighs bitterly against these "pokys, like bag-pipes." some hung down to the knees; yea, even to the feet. servants were as bad as their masters! when potage is brought to table, "the sleeves go into them and get the first taste." nay, they are "devil's receptacles," since anything stolen is safely lodged therein. and so a statute of the time prohibited any man below a banneret from wearing large hanging sleeves, open or closed. the fashion changed to _dagges_, a term explained by the th of henry iv., which forbade "gown or garment cut or slashed into pieces in the form of letters, rose-leaves, and posies of various kinds, or any such devices." the fantastic peaked shoes of the fifteenth century, sometimes only held up by a chain from the girdle, were fair mark for the lawgiver, and under edward iv. no less person than a lord was allowed peaks exceeding two inches. an act in the same reign banned the costly head-gear of women. henry viii. saw to men's garb as well as their beliefs. his first parliament forbade costly apparel, and there is preserved in the record office a letter from wolsey enclosing to the king, at his request, the act of apparel, with an abstract, for examination and correction. exemptions were not unknown: thus, in , henry conway of bermondsey obtained license to wear "camlet, velvet, and sarcenet, satin and damask, of green, black, or russet colour in his clothing." under queen mary common folk who wore silk on "hat, bonnet, girdle, scabbard, hose, shoes, or spur-leathers," were grievously amerced. under elizabeth the regulations were numberless: thus there is an act for "uttering of caps, and for true making of hats and caps." no one was to engage in this business unless he had been "a prentice or covenant servant" by the space of seven years. no one under the degree of knight was to wear a cap of velvet. but these were not pure sumptuary regulations: they were for protection of home industries. a statute of the previous reign had declared that no man was to buy more than twelve hats or caps, be it out of this realm; and a previous act of elizabeth had strangely provided that if anyone sold foreign apparel on credit for longer than eight days to persons not having £ a year he should be without legal remedy against his debtor. on the th june , an elaborate proclamation complained of "the wasting and undoying of a great number of young gentlemen" who were "allured by the vayne shewe of those thyngs." a schedule was appended in which the costumes prescribed for all sorts and conditions of men were set forth. in the star chamber on june th, , my lord keeper gravely admonished the judges to look to all sorts of abuses--"solicitors and pettifoggers," "gentlemen that leave hospitality and housekeeping and hide in cities and borough towns," "masterless men that live by their sword and their wit, meddlers in princes' matters and libellers," and last, but not least, "to the vanity and excess of woman's apparel." all was in vain, if we are to believe the fierce invective of stubb's _anatomie of abuses_. "there is now," he groans, "such a confused mingle-mangle of apparel, and such preposterous excess thereof as every one is permitted to flaunt it out in whatever apparel he listeth himself, or can get by any kind of means." it was horrible to hear that shirts were sold at £ a piece, and "it is a small matter now to bestow twenty nobles, ten pound, twenty pound, forty pound, yea, a hundred pound, of one pair of breeches (god be merciful to us!)" after this aught else were anti-climax, and so for the women he can only say they were worse than the men. a new order of things came in with the next reign, for the act jac. i. c. , sec. , repealed at one stroke all statutes against apparel. in scotland they kept up the game some time longer, but one need not pursue the subject there, though a curious statute of the scots james ii. ( ) must have a word. it provided that "na woman cum to kirk nor mercat with her face mussled that she may nocht be kenn'd under the pain of escheit of the curchie" (forfeiture of the hood). in ireland there was a law (says spenser) which "forbiddeth any to weare theyre beardes on the upper lip and none under the chinn:" another "which putteth away saffron shirtes and smockes," and so forth; but these were of english importation. in the north american colonies sumptuary legislation has a history of its own. in massachusetts an edict of september , declaims against the "much waste of the good creatures (not the tipplers, but the tipple) by the vain drinking of healths," which practice is straightway forbidden. excess or bravery of apparel is condemned, and no one is to wear a dress "with any lace on it, silver, gold silk, or thread under the penalty of forfeiture." again, it is provided that children or servants are not to have ornamental apparel. here is an individual case. robert coles, in march , for drunkenness is disfranchised and condemned for a whole year to "wear about his neck, and so to hang upon his outward garment a d made of red cloth and set upon white"--a very unromantic scarlet letter! these things, too, passed away, but in the maine liquor law of , one traces the revival of the old idea. in england the thing lived not again. under the commonwealth public opinion enforced a "sober garb." charles ii. had some idea of a national costume, but he was too wise or too careless to attempt legislation. in the wearing of the highland dress was forbidden, but that was policy, just as centuries before the jews had a special garb ordained for them. also a number of laws were passed to promote home manufactures: so under charles i. and charles ii. the entry of foreign bone-lace was prohibited, though the second monarch granted licence for importing same to john eaton for the use of the royal family. it would also serve, he coolly remarked, for patterns. there is one other curious example. too much foreign linen was used, and so the th of charles ii. c. ordered the dead (save the plague-stricken) to be buried in woollen shrouds. the relatives must file an affidavit with the clergyman as to this, and £ was the fine for _him_ if he neglected his part. did the vision of that unseemly shroud really disturb poor nance oldfield's last moments, as pope would have us believe? "odious! in woollen! 'twould a saint provoke!" were the last words that poor narcissa spoke. "no: let a charming chintz and brussels lace wrap my cold limbs and shade my lifeless face!" "narcissa" had her wish: the "brussels lace" of her head-dress, her "holland shift," a "pair of new kid gloves on her cold hands," were the talk of the town; so they tricked her out for westminster abbey. almost up to waterloo the act lingered on the statute book, till some ingenious rascal brought an action against various clergymen for the £ penalty, for that they had not certified to churchwardens the cases of non-compliance. and so, in , the th george iii. c. swept away the strange provision. printed by turnbull and spears, edinburgh transcriber's notes: text in italics is surrounded with underscores: _italics_. obvious typographical errors have been corrected. inconsistencies in spelling, punctuation, and hyphenation have been standardized. a note from michael hart, preparer of the . version. this file contains a number of versions of the magna carta, some of which were a little mangled in transit. i am sure our volunteers will find and correct errors i didn't catch, and that version . - . will have significant improvements, as well as at least one more version in latin. version . may contain a dozen different versions. the text of magna carta john, by the grace of god king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, greeting. know that before god, for the health of our soul and those of our ancestors and heirs, to the honour of god, the exaltation of the holy church, and the better ordering of our kingdom, at the advice of our reverend fathers stephen, archbishop of canterbury, primate of all england, and cardinal of the holy roman church, henry archbishop of dublin, william bishop of london, peter bishop of winchester, jocelin bishop of bath and glastonbury, hugh bishop of lincoln, walter bishop of worcester, william bishop of coventry, benedict bishop of rochester, master pandulf subdeacon and member of the papal household, brother aymeric master of the knighthood of the temple in england, william marshal earl of pembroke, william earl of salisbury, william earl of warren, william earl of arundel, alan de galloway constable of scotland, warin fitz gerald, peter fitz herbert, hubert de burgh seneschal of poitou, hugh de neville, matthew fitz herbert, thomas basset, alan basset, philip daubeny, robert de roppeley, john marshal, john fitz hugh, and other loyal subjects: ( ) first, that we have granted to god, and by this present charter have confirmed for us and our heirs in perpetuity, that the english church shall be free, and shall have its rights undiminished, and its liberties unimpaired. that we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by pope innocent iii. this freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity. to all free men of our kingdom we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs: ( ) if any earl, baron, or other person that holds lands directly of the crown, for military service, shall die, and at his death his heir shall be of full age and owe a `relief', the heir shall have his inheritance on payment of the ancient scale of `relief'. that is to say, the heir or heirs of an earl shall pay for the entire earl's barony, the heir or heirs of a knight s. at most for the entire knight's `fee', and any man that owes less shall pay less, in accordance with the ancient usage of `fees' ( ) but if the heir of such a person is under age and a ward, when he comes of age he shall have his inheritance without `relief' or fine. ( ) the guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. he shall do this without destruction or damage to men or property. if we have given the guardianship of the land to a sheriff, or to any person answerable to us for the revenues, and he commits destruction or damage, we will exact compensation from him, and the land shall be entrusted to two worthy and prudent men of the same `fee', who shall be answerable to us for the revenues, or to the person to whom we have assigned them. if we have given or sold to anyone the guardianship of such land, and he causes destruction or damage, he shall lose the guardianship of it, and it shall be handed over to two worthy and prudent men of the same `fee', who shall be similarly answerable to us. ( ) for so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. when the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear. ( ) heirs may be given in marriage, but not to someone of lower social standing. before a marriage takes place, it shall be' made known to the heir's next-of-kin. ( ) at her husband's death, a widow may have her marriage portion and inheritance at once and without trouble. she shall pay nothing for her dower, marriage portion, or any inheritance that she and her husband held jointly on the day of his death. she may remain in her husband's house for forty days after his death, and within this period her dower shall be assigned to her. ( ) no widow shall be compelled to marry, so long as she wishes to remain without a husband. but she must give security that she will not marry without royal consent, if she holds her lands of the crown, or without the consent of whatever other lord she may hold them of. ( ) neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. a debtor's sureties shall not be distrained upon so long as the debtor himself can discharge his debt. if, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. if they so desire, they may have the debtor's lands and rents until they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them. ( ) if anyone who has borrowed a sum of money from jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. if such a debt falls into the hands of the crown, it will take nothing except the principal sum specified in the bond. ( ) if a man dies owing money to jews, his wife may have her dower and pay nothing towards the debt from it. if he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. the debt is to be paid out of the residue, reserving the service due to his feudal lords. debts owed to persons other than jews are to be dealt with similarly. ( ) no `scutage' or `aid' may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. for these purposes only a reasonable `aid' may be levied. `aids' from the city of london are to be treated similarly. ( ) the city of london shall enjoy all its ancient liberties and free customs, both by land and by water. we also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs. ( ) to obtain the general consent of the realm for the assessment of an `aid' - except in the three cases specified above - or a `scutage', we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. to those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. in all letters of summons, the cause of the summons will be stated. when a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared. ( ) in future we will allow no one to levy an `aid' from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. for these purposes only a reasonable `aid' may be levied. ( ) no man shall be forced to perform more service for a knight's `fee', or other free holding of land, than is due from it. ( ) ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place. ( ) inquests of novel disseisin, mort d'ancestor, and darrein presentment shall be taken only in their proper county court. we ourselves, or in our absence abroad our chief justice, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets. ( ) if any assizes cannot be taken on the day of the county court, as many knights and freeholders shall afterwards remain behind, of those who have attended the court, as will suffice for the administration of justice, having regard to the volume of business to be done. ( ) for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. in the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. none of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood. ( ) earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence. ( ) a fine imposed upon the lay property of a clerk in holy orders shall be assessed upon the same principles, without reference to the value of his ecclesiastical benefice. ( ) no town or person shall be forced to build bridges over rivers except those with an ancient obligation to do so. ( ) no sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices. ( ) every county, hundred, wapentake, and tithing shall remain at its ancient rent, without increase, except the royal demesne manors. ( ) if at the death of a man who holds a lay `fee' of the crown, a sheriff or royal official produces royal letters patent of summons for a debt due to the crown, it shall be lawful for them to seize and list movable goods found in the lay `fee' of the dead man to the value of the debt, as assessed by worthy men. nothing shall be removed until the whole debt is paid, when the residue shall be given over to the executors to carry out the dead man's will. if no debt is due to the crown, all the movable goods shall be regarded as the property of the dead man, except the reasonable shares of his wife and children. ( ) if a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the church. the rights of his debtors are to be preserved. ( ) no constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this. ( ) no constable may compel a knight to pay money for castle-guard if the knight is willing to undertake the guard in person, or with reasonable excuse to supply some other fit man to do it. a knight taken or sent on military service shall be excused from castle-guard for the period of this service. ( ) no sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent. ( ) neither we nor any royal official will take wood for our castle, or for any other purpose, without the consent of the owner. ( ) we will not keep the lands of people convicted of felony in our hand for longer than a year and a day, after which they shall be returned to the lords of the `fees' concerned. ( ) all fish-weirs shall be removed from the thames, the medway, and throughout the whole of england, except on the sea coast. ( ) the writ called precipe shall not in future be issued to anyone in respect of any holding of land, if a free man could thereby be deprived of the right of trial in his own lord's court. ( ) there shall be standard measures of wine, ale, and corn (the london quarter), throughout the kingdom. there shall also be a standard width of dyed cloth, russett, and haberject, namely two ells within the selvedges. weights are to be standardised similarly. ( ) in future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. it shall be given gratis, and not refused. ( ) if a man holds land of the crown by `fee-farm', `socage', or `burgage', and also holds land of someone else for knight's service, we will not have guardianship of his heir, nor of the land that belongs to the other person's `fee', by virtue of the `fee-farm', `socage', or `burgage', unless the `fee-farm' owes knight's service. we will not have the guardianship of a man's heir, or of land that he holds of someone else, by reason of any small property that he may hold of the crown for a service of knives, arrows, or the like. ( ) in future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. ( ) no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. ( ) to no one will we sell, to no one deny or delay right or justice. ( ) all merchants may enter or leave england unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. this, however, does not apply in time of war to merchants from a country that is at war with us. any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. if our own merchants are safe they shall be safe too. ( ) in future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. people that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision. ( ) if a man holds lands of any `escheat' such as the `honour' of wallingford, nottingham, boulogne, lancaster, or of other `escheats' in our hand that are baronies, at his death his heir shall give us only the `relief' and service that he would have made to the baron, had the barony been in the baron's hand. we will hold the `escheat' in the same manner as the baron held it. ( ) people who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence. ( ) we will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well. ( ) all barons who have founded abbeys, and have charters of english kings or ancient tenure as evidence of this, may have guardianship of them when there is no abbot, as is their due. ( ) all forests that have been created in our reign shall at once be disafforested. river-banks that have been enclosed in our reign shall be treated similarly. ( ) all evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. but we, or our chief justice if we are not in england, are first to be informed. ( ) we will at once return all hostages and charters delivered up to us by englishmen as security for peace or for loyal service. ***here were some strange characters, not completely removed ( ) we will remove completely from their offices the kinsmen of gerard de ath, peter, guy, and andrew de chanceaux, guy de cigogne, and in future they shall hold no offices in england. the people in question are engelard de cigogn, geoffrey de martigny and his brothers, philip marc and his brothers, with geoffrey his nephew, and all their followers. * as soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, their attendants, and the mercenaries that have come to it, to its harm, with horses and arms. * to any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. in cases of dispute the matter shall be resolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace. in cases, however, where a man was deprived or dispossessed of something without the lawful judgement of his equals by our father king henry or our brother king richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the cross as a crusader. on our return from the crusade, or if we abandon it, we will at once render justice in full. * we shall have similar respite in rendering justice in connexion with forests that are to be disafforested, or to remain forests, when these were first aforested by our father henry or our brother richard; with the guardianship of lands in another persons fee, when we have hitherto had this by virtue of a fee held of us for knights service by a third party; and with abbeys founded in another persons fee, in which the lord of the fee claims to own a right. on our return from the crusade, or if we abandon it, we will at once do full justice to complaints about these matters. * no one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband. * all fines that have been given to us unjustly and against the law of the land, and all fines that we have exacted unjustly, shall be entirely remitted or the matter decided by a majority judgement of the twenty-five barons referred to below in the clause for securing the peace together with stephen, archbishop of canterbury, if he can be present, and such others as he wishes to bring with him. if the archbishop cannot be present, proceedings shall continue without him, provided that if any of the twenty-five barons has been involved in a similar suit himself, his judgement shall be set aside, and someone else chosen and sworn in his place, as a substitute for the single occasion, by the rest of the twenty-five. * if we have deprived or dispossessed any welshmen of lands, liberties, or anything else in england or in wales, without the lawful judgement of their equals, these are at once to be returned to them. a dispute on this point shall be determined in the marches by the judgement of equals. english law shall apply to holdings of land in england, welsh law to those in wales, and the law of the marches to those in the marches. the welsh shall treat us and ours in the same way. * in cases where a welshman was deprived or dispossessed of anything, without the lawful judgement of his equals, by our father king henry or our brother king richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the cross as a crusader. but on our return from the crusade, or if we abandon it, we will at once do full justice according to the laws of wales and the said regions. * we will at once return the son of llywelyn, all welsh hostages, and the charters delivered to us as security for the peace. * with regard to the return of the sisters and hostages of alexander, king of scotland, his liberties and his rights, we will treat him in the same way as our other barons of england, unless it appears from the charters that we hold from his father william, formerly king of scotland, that he should be treated otherwise. this matter shall be resolved by the judgement of his equals in our court. * all these customs and liberties that we have granted shall be observed in our kingdom in so far as concerns our own relations with our subjects. let all men of our kingdom, whether clergy or laymen, observe them similarly in their relations with their own men. ***strange characters may have ended here. since we have granted all these things for god, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security: * the barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter. * if we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us - or in our absence from the kingdom to the chief justice - to declare it and claim immediate redress. if we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. having secured the redress, they may then resume their normal obedience to us. * any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. we give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command. * if one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were. * in the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear. * the twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power. * we will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party. we have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. we have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between easter ad and the restoration of peace. in addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of stephen archbishop of canterbury, henry archbishop of dublin, the other bishops named above, and master pandulf. it is accordingly our wish and command that the english church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fulness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever. both we and the barons have sworn that all this shall be observed in good faith and without deceit. witness the above mentioned people and many others. given by our hand in the meadow that is called runnymede, between windsor and staines, on the fifteenth day of june in the seventeenth year of our reign. *** [there were many missing spaces in this one, not sure i got them all] magna carta john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou, to the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greeting. know that, having regard to god and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of god and the advancement of holy church, and for the reform of our realm, by advice of our venerable fathers, stephen archbishop of canterbury, primate of all england and cardinal of the holy roman church, henry archbishop of dublin, william of london, peter of winchester, jocelyn of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, benedict of rochester, bishops; of master pandulf, subdeacon and member of the household of our lord the pope, of brother aymeric (master of the knights of the temple in england), and of the illustrious men william marshall earl of pembroke, william earl of salisbury, william earl of warenne, william earl of arundel, alan of galloway (constable of scotland), waren fitz gerald, peter fits herbert, hubert de burgh (seneschal of poitou), hugh de neville, matthew fitz herbert, thomas basset, alan basset, philip d'aubigny, robert of roppesley, john marshall, john fitz hugh, and others, our liegemen. . in the first place we have granted to god, and by this our present charter confirmed for us and our heirs for ever that the english church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the english church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, pope innocent iii., before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs for ever. we have also granted to all freemen of our kingdom, for us and our heirs for ever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs for ever. . if any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be of full age and owe "relief" he shall have his inheritance on payment of the ancient relief, namely the heir or heirs of an earl, pounds for a whole earl's barony; the heir or heirs of a baron, pounds for a whole barony; the heir or heirs of a knight, shillings at most for a whole knight's fee; and whoever owes less let him give less, according to the ancient custom officers. . if, however, the heir of any of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age. . the guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonably produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waste of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has there in made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid. . the guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, fishponds, stanks, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and "waynage," according as the season of husbandry shall require, and the issues of the land can reasonably bear. . heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice. . a widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for fourty days after his death, within which time her dower shall be assigned to her. . no widow shall be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another. . neither we nor our bailiffs shall seize any land or rent for any debt, so long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties. . if one who has borrowed from the jews any sum, great or small, die before that loan can be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond. . and if any one die indebted to the jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left underage, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than jews. . no scutage nor aid shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. in like manner it shall be done concerning aids from the city of london. . and the city of london shall have all its ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. . and for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally by our letters; and we will moreover cause to be summoned generally, through our sheriffs and bailiffs, all others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. and when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come. . we will not for the future grant to any one license to take an aid from his own free tenants, except to ransom his body, to make his eldest son a knight, and once to marry his eldest daughter; and on each of these occasions there shall be levied only a reasonable aid. . no one shall be distrained for performance of greater service for a knight's fee, or for any other free tenement, than is due therefrom. . common pleas shall not follow our court, but shall be held in some fixed place. . inquests of novel disseisin, of mort d'ancester, and of darrein presentment, shall not be held elsewhere than in their own county courts and that in manner following,--we, or, if we should be out of the realm, our chief justiciar, will send two justiciars through every county four times a year, who shall, along with four knights of the county chosen by the county, hold the said assize in the county court, on the day and in the place of meeting of that court. . and if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less. . a freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his "contentment;" and a merchant in the same way, saving his "merchandise;" and a villein shall be amerced in the same way, saving his "wainage"--if they have fallen into our mercy: and none of the aforesaid amercements shall be impsed except by the oath of honest men of the neighborhood. . earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense. . a clerk shall not be amerced in respect of his lay holding except after the manner of the others aforesaid; further, he shall not be amerced in accordance with the extent of his ecclesiastical benefice. . no village or individual shall be compelled to make bridges at river-banks, except those who from of old were legally bound to do so. . no sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our crown. . all counties, hundreds, wapentakes, and trithings (except our demesne manors) shall remain at old rents, and without any additional payment.***here may be an error . if any one holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed to us, it shall be lawful for our sheriff or bailiff to attach and catalogue chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law-worthy men, provided always that nothing whatever be then be removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfil the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares. . if any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under supervision of the church, saving to every one the debts which the deceased owed to him. . no constable or other bailiff of ours shall take corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller. . no constable shall compel any knight to give money in lieu of castle-guard, when he is willing to perform it in his own person, or (if he cannot do it from any reasonable cause) then by another responsible man. further, if we have led or sent him upon military service, he shall be relieved from guard in proportion to the time during which he has been on service because of us. . no sheriff or bailiff of ours, or other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman. . neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood. . we will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs. . all kiddles for the future shall be removed altogether from thames and medway, and throughout all england, except upon the seashore. . the writ which is called praecipe shall not for the future be issued to any one, regarding any tenement whereby a freeman may lose his court. . let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, "the london quarter;" and one width of cloth (whether dyed, or russet, or "halberget"), to wit, two ells within the selvages; of weights also let it be as of measures. . nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied. . if any one holds of us by fee-farm, by socage, or by burgage, and holds also land of another lord by knight's service, we will not (by reason of that fee-farm, socage, or burgage) have the wardship of the heir, or of such land of his as is of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight's service. we will not by reason of any small serjeanty which any one may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir of the land which he holds of another lord by knight's service. . no bailiff for the future shall, upon his own unsupported complaint, put any one to his "law," without credible witnesses brought for this purpose. . no freeman shall be taken or imprisoned or disseised or exiled or in anyway destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. . to no one will we sell, to no one will we refuse or delay, right or justice. . all merchants shall have safe and secure exit from england, and entry to england, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. and if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land. . it shall be lawful in future for any one (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as is above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy--reserving always the allegiance due to us. . if any one holding of some escheat (such as the honor of wallingford, nottingham, boulogne, lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron, if that barony had been in the baron's hand; and we shall hold it in the same manner in which the baron held it. . men who dwell without the forest need not henceforth come before our justiciars of the forest upon a general summons, except those who are impleaded, or who have become sureties for any person or persons attached for forest offenses. . we will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well. . all barons who have founded abbeys, concerning which they hold charters from the kings of england, or of which they have long-continued possession, shall have the wardship of them, when vacant, as they ought to have. . all forests that have been made such in our time shall forthwith be disafforested; and a similar course shall be followed with regard to river-banks that have been placed "in defense" by us in our time. . all evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river-banks and their wardens, shall immediately be inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in england. . we will immediately restore all hostages and charters delivered to us by englishmen, as sureties of the peace or of faithful service. . we will entirely remove from their bailiwicks, the relations of gerard athee (so that in future they shall have no bailiwick in england); namely, engelard of cigogne, peter, guy, and andrew of chanceaux, guy of cigogne, geofrrey of martigny with his brothers, philip mark with his brothers and his nephew geoffrey, and the whole brood of the same. . as soon as peace is restored, we will banish from the kingdom all foreign-born knights, cross-bowmen, serjeants, and mercenary soldiers, who have come with horses and arms to the kingdom's hurt. . if any one has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five-and-twenty barons of whom mention is made below in the clause for securing the peace. moreover, for all those possessions, from which any one has, without the lawful judgment of his peers, be endisseised or removed, by our father, king henry, or by our brother, king richard, and which we retain in our hand (or which are possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised, or an inquest made by our order, before our taking of the cross; but as soon as were turn from our expedition (or if perchance we desist from the expedition) we will immediately grant full justice therein. . we shall have, moreover, the same respite and in the same manner in rendering justice concerning the disafforestation or retention of those forests which henry our father and richard our brother afforested, and concerning wardship of lands which are of the fief of another (namely, such wardships as we have hitherto had by reason of a fief which any one held of us by knight's service), and concerning abbeys founded on other fiefs than our own, in which the lord of the fief claims to have right; and when we have returned, or if we desist from our expedition, we will immediately grant full justice to all who complain of such things. . no one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband. . all fines made with us unjustly and against the law of the land, and all amercements imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall be done concerning them according to the decision of the five-and-twenty barons of whom mention is made below in the clause for securing the peace, or according to the judgment of the majority of the same, along with the aforesaid stephen, archbishop of canterbury, if he can be present, and such others as he may wish to bring with him for this purpose, and if he cannot be present the business shall nevertheless proceed without him, provided always that if any one or more of the aforesaid five-and-twenty barons are in a similar suit, they shall be removed as far as concerns this particular judgment, others being substituted in their places after having been selected by the rest of the same five-and-twenty for this purpose only, and after having been sworn. . if we have disseised or removed welshmen from lands or liberties, or other things, without the legal judgment of their peers in england or in wales, they shall be immediately restored to them; and if a dispute arise over this, then let it be decided in the marches by the judgment of their peers; for tenements in england according to the law of england, for tenements in wales according to the law of wales, and for tenements in the marches according to the law of the marches. welshmen shall do the same to us and ours. . further, for all those possessions from which any welshman has, without the lawful judgment of his peers, been disseised or removed by king henry our father or king richard our brother, and which we retain in our hand (or which are possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised or an inquest made by our order before we took the cross; but as soon as we return (or if perchance we desist from our expedition), we will immediately grant full justice in accordance with the laws of the welsh and in relation to the foresaid regions. . we will immediately give up the son of llywelyn and all the hostages of wales, and the charters delivered to us as security for the peace. . we will do toward alexander, king of scots, concerning the return of his sisters and his hostages, and concerning his franchises, and his right, in the same manner as we shall do toward our other barons of england, unless it ought to be otherwise according to the charters which we hold from william his father, formerly king of scots; and this shall be according to the judgment of his peers in our court. . moreover, all these aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us toward our men, shall be observed by all of our kingdom, as well clergy as laymen, as far as pertains to them toward their men. . since, moreover, for god and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance for ever, we give and grant to them the underwritten security, namely, that the barons choose five-and-twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault toward any one, or shall have broken any one of the articles of the peace or of this security, and the offense be notified to four barons of the foresaid five-and-twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. and if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five-and-twenty barons, and those five-and-twenty barons shall, together with the community of the whole land, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us. and let whoever in the country desires it, swear to obey the orders of the said five-and-twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to every one who wishes to swear, and we shall never forbid any one to swear. all those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty-five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect aforesaid. and if any one of the five-and-twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty-five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. further, in all matters, the execution of which is intrusted to these twenty-five barons, if perchance these twenty-five are present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty-five had concurred in this; and the said twenty-five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. and we shall procure nothing from any one, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such thing has been procured, let it be void and null, and we shall never use it personally or by another. . and all the ill-will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned every one. moreover, all trespasses occasioned by the said quarrel, from easter in the sixteenth year of our reign till the restoration of peace, we have fully remitted to all, both clergy and laymen, and completely forgiven, as far as pertains to us. and, on this head, we have caused to be made for them letters testimonial patent of the lord stephen, archbishop of canterbury, of the lord henry, archbishop of dublin, of the bishops aforesaid, and of master pandulf as touching this security and the concessions aforesaid. . wherefore it is our will, and we firmly enjoin, that the english church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places for ever, as is aforesaid. an oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. given under our hand--the above-named and many others being witnesses--in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june, in the seventeenth year of our reign. *** the text of the magna carta the magna carta (the great charter): preamble: john, by the grace of god, king of england, lord of ireland, duke of normandy and aquitaine, and count of anjou, to the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings. know that, having regard to god and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of god and the advancement of his holy church and for the rectifying of our realm, we have granted as underwritten by advice of our venerable fathers, stephen, archbishop of canterbury, primate of all england and cardinal of the holy roman church, henry, archbishop of dublin, william of london, peter of winchester, jocelyn of bath and glastonbury, hugh of lincoln, walter of worcester, william of coventry, benedict of rochester, bishops; of master pandulf, subdeacon and member of the household of our lord the pope, of brother aymeric (master of the knights of the temple in england), and of the illustrious men william marshal, earl of pembroke, william, earl of salisbury, william, earl of warenne, william, earl of arundel, alan of galloway (constable of scotland), waren fitz gerold, peter fitz herbert, hubert de burgh (seneschal of poitou), hugh de neville, matthew fitz herbert, thomas basset, alan basset, philip d'aubigny, robert of roppesley, john marshal, john fitz hugh, and others, our liegemen. . in the first place we have granted to god, and by this our present charter confirmed for us and our heirs forever that the english church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the english church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, pope innocent iii, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever. we have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever. . if any of our earls or barons, or others holding of us in chief by military service shall have died, and at the time of his death his heir shall be full of age and owe "relief", he shall have his inheritance by the old relief, to wit, the heir or heirs of an earl, for the whole baroncy of an earl by l ; the heir or heirs of a baron, l for a whole barony; the heir or heirs of a knight, s, at most, and whoever owes less let him give less, according to the ancient custom of fees. . if, however, the heir of any one of the aforesaid has been under age and in wardship, let him have his inheritance without relief and without fine when he comes of age. . the guardian of the land of an heir who is thus under age, shall take from the land of the heir nothing but reasonable produce, reasonable customs, and reasonable services, and that without destruction or waste of men or goods; and if we have committed the wardship of the lands of any such minor to the sheriff, or to any other who is responsible to us for its issues, and he has made destruction or waster of what he holds in wardship, we will take of him amends, and the land shall be committed to two lawful and discreet men of that fee, who shall be responsible for the issues to us or to him to whom we shall assign them; and if we have given or sold the wardship of any such land to anyone and he has therein made destruction or waste, he shall lose that wardship, and it shall be transferred to two lawful and discreet men of that fief, who shall be responsible to us in like manner as aforesaid. . the guardian, moreover, so long as he has the wardship of the land, shall keep up the houses, parks, fishponds, stanks, mills, and other things pertaining to the land, out of the issues of the same land; and he shall restore to the heir, when he has come to full age, all his land, stocked with ploughs and wainage, according as the season of husbandry shall require, and the issues of the land can reasonable bear. . heirs shall be married without disparagement, yet so that before the marriage takes place the nearest in blood to that heir shall have notice. . a widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her. . no widow shall be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another. . neither we nor our bailiffs will seize any land or rent for any debt, as long as the chattels of the debtor are sufficient to repay the debt; nor shall the sureties of the debtor be distrained so long as the principal debtor is able to satisfy the debt; and if the principal debtor shall fail to pay the debt, having nothing wherewith to pay it, then the sureties shall answer for the debt; and let them have the lands and rents of the debtor, if they desire them, until they are indemnified for the debt which they have paid for him, unless the principal debtor can show proof that he is discharged thereof as against the said sureties. . if one who has borrowed from the jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond. . and if anyone die indebted to the jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than jews. . no scutage not aid shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. in like manner it shall be done concerning aids from the city of london. . and the city of london shall have all it ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs. . and for obtaining the common counsel of the kingdom anent the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally by our letters; and we will moveover cause to be summoned generally, through our sheriffs and bailiffs, and others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. and when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come. . we will not for the future grant to anyone license to take an aid from his own free tenants, except to ransom his person, to make his eldest son a knight, and once to marry his eldest daughter; and on each of these occasions there shall be levied only a reasonable aid. . no one shall be distrained for performance of greater service for a knight's fee, or for any other free tenement, than is due therefrom. . common pleas shall not follow our court, but shall be held in some fixed place. . inquests of novel disseisin, of mort d'ancestor, and of darrein presentment shall not be held elsewhere than in their own county courts, and that in manner following; we, or, if we should be out of the realm, our chief justiciar, will send two justiciaries through every county four times a year, who shall alone with four knights of the county chosen by the county, hold the said assizes in the county court, on the day and in the place of meeting of that court. . and if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less. . a freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his "contentment"; and a merchant in the same way, saving his "merchandise"; and a villein shall be amerced in the same way, saving his "wainage" if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood. . earls and barons shall not be amerced except through their peers, and only in accordance with the degree of the offense. . a clerk shall not be amerced in respect of his lay holding except after the manner of the others aforesaid; further, he shall not be amerced in accordance with the extent of his ecclesiastical benefice. . no village or individual shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so. . no sheriff, constable, coroners, or others of our bailiffs, shall hold pleas of our crown. . all counties, hundred, wapentakes, and trithings (except our demesne manors) shall remain at the old rents, and without any additional payment. . if anyone holding of us a lay fief shall die, and our sheriff or bailiff shall exhibit our letters patent of summons for a debt which the deceased owed us, it shall be lawful for our sheriff or bailiff to attach and enroll the chattels of the deceased, found upon the lay fief, to the value of that debt, at the sight of law worthy men, provided always that nothing whatever be thence removed until the debt which is evident shall be fully paid to us; and the residue shall be left to the executors to fulfill the will of the deceased; and if there be nothing due from him to us, all the chattels shall go to the deceased, saving to his wife and children their reasonable shares. . if any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest kinsfolk and friends, under supervision of the church, saving to every one the debts which the deceased owed to him. . no constable or other bailiff of ours shall take corn or other provisions from anyone without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller. . no constable shall compel any knight to give money in lieu of castle-guard, when he is willing to perform it in his own person, or (if he himself cannot do it from any reasonable cause) then by another responsible man. further, if we have led or sent him upon military service, he shall be relieved from guard in proportion to the time during which he has been on service because of us. . no sheriff or bailiff of ours, or other person, shall take the horses or carts of any freeman for transport duty, against the will of the said freeman. . neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood. . we will not retain beyond one year and one day, the lands those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs. . all kydells for the future shall be removed altogether from thames and medway, and throughout all england, except upon the seashore. . the writ which is called praecipe shall not for the future be issued to anyone, regarding any tenement whereby a freeman may lose his court. . let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, "the london quarter"; and one width of cloth (whether dyed, or russet, or "halberget"), to wit, two ells within the selvedges; of weights also let it be as of measures. . nothing in future shall be given or taken for a writ of inquisition of life or limbs, but freely it shall be granted, and never denied. . if anyone holds of us by fee-farm, either by socage or by burage, or of any other land by knight's service, we will not (by reason of that fee-farm, socage, or burgage), have the wardship of the heir, or of such land of his as if of the fief of that other; nor shall we have wardship of that fee-farm, socage, or burgage, unless such fee-farm owes knight's service. we will not by reason of any small serjeancy which anyone may hold of us by the service of rendering to us knives, arrows, or the like, have wardship of his heir or of the land which he holds of another lord by knight's service. . no bailiff for the future shall, upon his own unsupported complaint, put anyone to his "law", without credible witnesses brought for this purposes. . no freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. . to no one will we sell, to no one will we refuse or delay, right or justice. . all merchants shall have safe and secure exit from england, and entry to england, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us. and if such are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information be received by us, or by our chief justiciar, how the merchants of our land found in the land at war with us are treated; and if our men are safe there, the others shall be safe in our land. . it shall be lawful in future for anyone (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as if above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy- reserving always the allegiance due to us. . if anyone holding of some escheat (such as the honor of wallingford, nottingham, boulogne, lancaster, or of other escheats which are in our hands and are baronies) shall die, his heir shall give no other relief, and perform no other service to us than he would have done to the baron if that barony had been in the baron's hand; and we shall hold it in the same manner in which the baron held it. . men who dwell without the forest need not henceforth come before our justiciaries of the forest upon a general summons, unless they are in plea, or sureties of one or more, who are attached for the forest. . we will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well. . all barons who have founded abbeys, concerning which they hold charters from the kings of england, or of which they have long continued possession, shall have the wardship of them, when vacant, as they ought to have. . all forests that have been made such in our time shall forthwith be disafforsted; and a similar course shall be followed with regard to river banks that have been placed "in defense" by us in our time. . all evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officers, river banks and their wardens, shall immediately by inquired into in each county by twelve sworn knights of the same county chosen by the honest men of the same county, and shall, within forty days of the said inquest, be utterly abolished, so as never to be restored, provided always that we previously have intimation thereof, or our justiciar, if we should not be in england. . we will immediately restore all hostages and charters delivered to us by englishmen, as sureties of the peace of faithful service. . we will entirely remove from their bailiwicks, the relations of gerard of athee (so that in future they shall have no bailiwick in england); namely, engelard of cigogne, peter, guy, and andrew of chanceaux, guy of cigogne, geoffrey of martigny with his brothers, philip mark with his brothers and his nephew geoffrey, and the whole brood of the same. . as soon as peace is restored, we will banish from the kingdom all foreign born knights, crossbowmen, serjeants, and mercenary soldiers who have come with horses and arms to the kingdom's hurt. . if anyone has been dispossessed or removed by us, without the legal judgment of his peers, from his lands, castles, franchises, or from his right, we will immediately restore them to him; and if a dispute arise over this, then let it be decided by the five and twenty barons of whom mention is made below in the clause for securing the peace. moreover, for all those possessions, from which anyone has, without the lawful judgment of his peers, been disseised or removed, by our father, king henry, or by our brother, king richard, and which we retain in our hand (or which as possessed by others, to whom we are bound to warrant them) we shall have respite until the usual term of crusaders; excepting those things about which a plea has been raised, or an inquest made by our order, before our taking of the cross; but as soon as we return from the expedition, we will immediately grant full justice therein. . we shall have, moreover, the same respite and in the same manner in rendering justice concerning the disafforestation or retention of those forests which henry our father and richard our brother afforested, and concerning the wardship of lands which are of the fief of another (namely, such wardships as we have hitherto had by reason of a fief which anyone held of us by knight's service), and concerning abbeys founded on other fiefs than our own, in which the lord of the fee claims to have right; and when we have returned, or if we desist from our expedition, we will immediately grant full justice to all who complain of such things. . no one shall be arrested or imprisoned upon the appeal of a woman, for the death of any other than her husband. . all fines made with us unjustly and against the law of the land, and all amercements, imposed unjustly and against the law of the land, shall be entirely remitted, or else it shall be done concerning them according to the decision of the five and twenty barons whom mention is made below in the clause for securing the pease, or according to the judgment of the majority of the same, along with the aforesaid stephen, archbishop of canterbury, if he can be present, and such others as he may wish to bring with him for this purpose, and if he cannot be present the business shall nevertheless proceed without him, provided always that if any one or more of the aforesaid five and twenty barons are in a similar suit, they shall be removed as far as concerns this particular judgment, others being substituted in their places after having been selected by the rest of the same five and twenty for this purpose only, and after having been sworn. . if we have disseised or removed welshmen from lands or liberties, or other things, without the legal judgment of their peers in england or in wales, they shall be immediately restored to them; and if a dispute arise over this, then let it be decided in the marches by the judgment of their peers; for the tenements in england according to the law of england, for tenements in wales according to the law of wales, and for tenements in the marches according to the law of the marches. welshmen shall do the same to us and ours. . further, for all those possessions from which any welshman has, without the lawful judgment of his peers, been disseised or removed by king henry our father, or king richard our brother, and which we retain in our hand (or which are possessed by others, and which we ought to warrant), we will have respite until the usual term of crusaders; excepting those things about which a plea has been raised or an inquest made by our order before we took the cross; but as soon as we return (or if perchance we desist from our expedition), we will immediately grant full justice in accordance with the laws of the welsh and in relation to the foresaid regions. . we will immediately give up the son of llywelyn and all the hostages of wales, and the charters delivered to us as security for the peace. . we will do towards alexander, king of scots, concerning the return of his sisters and his hostages, and concerning his franchises, and his right, in the same manner as we shall do towards our other barons of england, unless it ought to be otherwise according to the charters which we hold from william his father, formerly king of scots; and this shall be according to the judgment of his peers in our court. . moreover, all these aforesaid customs and liberties, the observances of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed b all of our kingdom, as well clergy as laymen, as far as pertains to them towards their men. . since, moveover, for god and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. and if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us. and let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. all those, moveover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. and if any one of the five and twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. further, in all matters, the execution of which is entrusted to these twenty five barons, if perchance these twenty five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty five had concurred in this; and the said twenty five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. and we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such things has been procured, let it be void and null, and we shall never use it personally or by another. . and all the will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned to everyone. moreover, all trespasses occasioned by the said quarrel, from easter in the sixteenth year of our reign till the restoration of peace, we have fully remitted to all, both clergy and laymen, and completely forgiven, as far as pertains to us. and on this head, we have caused to be made for them letters testimonial patent of the lord stephen, archbishop of canterbury, of the lord henry, archbishop of dublin, of the bishops aforesaid, and of master pandulf as touching this security and the concessions aforesaid. . wherefore we will and firmly order that the english church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. an oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. given under our hand - the above named and many others being witnesses - in the meadow which is called runnymede, between windsor and staines, on the fifteenth day of june, in the seventeenth year of our reign. *** http://www.archive.org/details/lifeofsirjamesfi stepuoft transcriber's note: minor punctuation errors have been corrected without notice. printer's errors have been corrected and are listed at the end of the book. all other inconsistencies are as in the original. in this e-book a carat character (^) indicates that the following character(s) is (are) a superscript. sir james fitzjames stephen [illustration: _walker & boutalls ph. sc._ j f stephen _from a drawing by g. f. watts. r. a. ._] london. published by smith elder & c^o. waterloo place. the life of sir james fitzjames stephen, bart., k.c.s.i. a judge of the high court of justice by his brother leslie stephen with two portraits london smith, elder, & co., waterloo place [all rights reserved] preface in writing the following pages i have felt very strongly one disqualification for my task. the life of my brother, sir j. f. stephen, was chiefly devoted to work which requires some legal knowledge for its full appreciation. i am no lawyer; and i should have considered this fact to be a sufficient reason for silence, had it been essential to give any adequate estimate of the labours in question. my purpose, however, is a different one. i have wished to describe the man rather than to give any history of what he did. what i have said of the value of his performances must be taken as mainly a judgment at second hand. but in writing of the man himself i have advantages which, from the nature of the case, are not shared by others. for more than sixty years he was my elder brother; and a brother in whose character and fortunes i took the strongest interest from the earliest period at which i was capable of reflection or observation. i think that brothers have generally certain analogies of temperament, intellectual and moral, which enable them, however widely they may differ in many respects, to place themselves at each other's point of view, and to be so far capable of that sympathetic appreciation which is essential to satisfactory biography. i believe that this is true of my brother and myself. moreover, as we were brought up under the same roof, i have an intimate knowledge--now, alas! almost peculiar to myself--of the little home circle whose characteristics had a profound influence upon his development. i have thought it desirable to give a fuller account of those characteristics, and of their origin in previous circumstances, than can well be given by any one but myself. this is partly because i recognise the importance of the influence exerted upon him; and partly, i will admit, for another reason. my brother took a great interest, and, i may add, an interest not unmixed with pride, in our little family history. i confess that i share his feelings, and think, at any rate, that two or three of the persons of whom i have spoken deserve a fuller notice than has as yet been made public. what i have said may, i hope, serve as a small contribution to the history of one of the rivulets which helped to compose the great current of national life in the earlier part of this century. i could not have attempted to write the life of my brother without the approval and the help of my sister-in-law, lady stephen. she has provided me with materials essential to the narrative, and has kindly read what i have written. i am, of course, entirely responsible for everything that is here said; and i feel the responsibility all the more because i have had the advantage of her suggestions throughout. i have also to thank my brother's children, who have been in various ways very helpful. my nephews, in particular, have helped me in regard to various legal matters. to my sister, miss stephen, i owe a debt of gratitude which--for reasons which she will understand--i shall not attempt to discharge by any full acknowledgment. i have especially to thank sir h. s. cunningham and lady egerton, lady stephen's brother and sister, for permitting me to read my brother's letters to them, and for various suggestions. some other correspondence has been placed in my hands, and especially two important collections. lady grant duff has been good enough to show me a number of letters written to her, and lady lytton has communicated letters written to the late lord lytton. i have spoken of these letters in the text, and have in the last chapter given my reasons for confining my use of them to occasional extracts. they have been of material service. i have acknowledged help received from other persons at the points where it has been turned to account. i will, however, offer my best thanks to them in this place, and assure them of my sincere gratitude. mr. arthur coleridge, the rev. dr. kitchin, dean of durham, the rev. h. w. watson, rector of berkeswell, coventry, the rev. j. llewelyn davies, vicar of kirkby lonsdale, prof. sidgwick and mr. montagu s. d. butler, of pembroke college, cambridge, have given me information in regard to early years. mr. franklin lushington, mr. justice wills, lord field, mr. justice vaughan williams, sir francis jeune, sir theodore martin, the right hon. joseph chamberlain, mr. h. f. dickens, and the late captain parker snow have given me information of various kinds as to the legal career. sir john strachey, sir robert egerton, and sir h. s. cunningham have given me information as to the indian career. mr. george murray smith, mr. james knowles, mr. frederick greenwood, and mr. longman have given me information as to various literary matters. i have also to thank mrs. charles simpson, mr. f. w. gibbs, mrs. russell gurney, mr. horace smith, sir f. pollock, prof. maitland, mr. voysey, and mr. a. h. millar, of dundee, for help on various points. leslie stephen. may, . contents chapter i family history page i. james stephen, writer on imprisonment for debt ii. james stephen, master in chancery iii. master stephen's children iv. the venns v. james stephen, colonial under-secretary chapter ii early life i. childhood ii. eton iii. king's college iv. cambridge v. reading for the bar chapter iii the bar and journalism i. introductory ii. first years at the bar iii. the 'saturday review' iv. education commission and recordership v. progress at the bar vi. 'essays by a barrister' vii. defence of dr. williams viii. 'view of the criminal law' ix. the 'pall mall gazette' x. governor eyre xi. indian appointment chapter iv india i. personal history ii. official work in india iii. indian impressions iv. last months in india chapter v last years at the bar i. first occupations in england ii. 'liberty, equality, fraternity' iii. dundee election iv. codification in england v. the metaphysical society vi. the criminal code vii. ecclesiastical cases viii. correspondence with lord lytton ix. appointment to a judgeship note on residence in ireland chapter vi judicial career i. history of criminal law ii. 'nuncomar and impey' iii. judicial characteristics iv. miscellaneous occupations v. james kenneth stephen vi. conclusion bibliographical note index * * * * * _illustrations_ portrait from a drawing by g. f. watts, r.a., _frontispiece_ " " photograph by bassano, _to face p. _ life of sir james fitzjames stephen chapter i _family history_ i. james stephen, writer on imprisonment for debt during the first half of the eighteenth century a james stephen, the first of the family of whom i have any knowledge, was tenant of a small farm in aberdeenshire, on the borders of buchan.[ ] he was also engaged in trade, and, though it is stated that smuggler would be too harsh a name to apply to him, he had no insuperable objection to dealing in contraband articles. he was considered to belong to the respectable class, and gave his sons a good education. he had nine children by his wife, mary brown. seven of these were sons, and were said to be the finest young men in the country. alexander, the eldest, was in business at glasgow; he died when nearly seventy, after falling into distress. william, the second son, studied medicine, and ultimately settled at st. christopher's, in the west indies, where he was both a physician and a planter. he probably began life as a 'surgeon to a guineaman,' and he afterwards made money by buying 'refuse' (that is, sickly) negroes from slave ships, and, after curing them of their diseases, selling them at an advanced price. he engaged in various speculations, and had made money when he died in , in his fiftieth year. his career, as will be seen, was of great importance to his relations. the other sons all took to trade, but all died before william. the two sisters, mrs. nuccoll and mrs. calder, married respectably, and lived to a great age. they were able to be of some service to nephews and nieces. my story is chiefly concerned with the third son, james, born about . after studying law for a short time at aberdeen, he was sent abroad, when eighteen years old, to holland, and afterwards to france, with a view to some mercantile business. he was six feet three inches in height, and a man of great muscular power. family traditions tell of his being attacked by two footpads, and knocking their heads together till they cried for mercy. another legend asserts that when a friend offered him a pony to carry him home after dinner, he made and won a bet that he would carry the pony. in the year this young giant was sailing as supercargo of a ship bound from bordeaux to scotland, with wine destined, no doubt, to replenish the 'blessed bear of bradwardine,' and its like. the ship had neared the race of portland, when a storm arose, and she was driven upon the cliffs of purbeck island. james stephen, with four of the crew, escaped to the rocks, the rest being drowned. stephen roped his companions to himself, and scaled the rocks in the dark, as lovel, in the 'antiquary,' leads the wardours and edie ochiltree up the crags of the halket head. next day, the outcasts were hospitably received by mr. milner, collector of customs at poole. stephen had to remain for some time on the spot to look after the salvage of the cargo. the drowned captain had left some valuable papers in a chest. he appeared in a dream to stephen, and gave information which led to their recovery. the news that his ghost was on the look-out had, it is said, a wholesome effect in deterring wreckers from interference with the cargo. mr. milner had six children, the youngest of whom, sibella, was a lovely girl of fifteen. she had a fine voice, and had received more than the usual education of the times. she fell in love with the gallant young stranger, and before long they were privately married. this event was hastened by their desire to anticipate the passage of the marriage act (june ), which was expected to make the consent of parents necessary. the poor girl, however, yielded with much compunction, and regarded the evils which afterwards befell her as providential punishments for her neglect of filial duty. james stephen was a man of many prepossessing qualities, and soon became reconciled to his wife's family. he was taken into partnership by one of his brothers-in-law, a william milner, then a merchant at poole. here his two eldest children were born, william on october , , and james on june , . unfortunately the firm became bankrupt; and the bankruptcy led to a lifelong quarrel between james stephen and his elder brother, william, who had taken some share in the business. james then managed to start in business in london, and for some time was fairly prosperous. unluckily, while at poole he had made a great impression upon sir john webbe, a roman catholic baronet, who had large estates in the neighbourhood. sir john had taken up a grand scheme for developing his property at hamworthy, close to poole. stephen, it seems, had discovered that there were not only brick earth and pipeclay but mineral springs and coal under the barren soil. a town was to be built; a trade started with london; sir john's timber was to be turned into ships; a colliery was to be opened--and, in short, a second bristol was to arise in dorsetshire. sir john was to supply the funds, and stephen's energy and ability marked him out as the heaven-sent manager. stephen accepted the proposals, gave up his london business, and set to work with energy. coal was found, it is said, 'though of too sulphureous a kind for use;' but deeper diggings would, no doubt, lay bare a superior seam. after a year or two, however, affairs began to look black; sir john webbe became cool and then fell out with his manager; and the result was that, about , james stephen found himself confined for debt in the king's bench prison.[ ] stephen, however, was not a man to submit without knowing the reason why. he rubbed up his old legal knowledge, looked into the law-books, and discovered that imprisonment for debt was contrary to magna charta. this doctrine soon made converts in the king's bench. three of his fellow prisoners enjoy such immortality as is conferred by admission to biographical dictionaries. the best known was the crazy poet, christopher smart, famous for having leased himself for ninety-nine years to a bookseller, and for the fine 'song of david,' which browning made the text of one of his later poems.[ ] another was william jackson, an irish clergyman, afterwards known as a journalist on the popular side, who was convicted of high treason at dublin in , and poisoned himself in the dock.[ ] a third was william thompson, known as 'blarney,' a painter, who had married a rich wife in , but had apparently spent her money by this time.[ ] mrs. stephen condescended to enliven the little society by her musical talents. the prisoners in general welcomed stephen as a champion of liberty. a writ of 'habeas corpus' was obtained, and stephen argued his case before lord mansfield. the great lawyer was naturally less amenable to reason than the prisoners. he was, however, impressed, it is reported, by the manliness and energy of the applicant. 'it is a great pity,' he said, 'but the prisoner must be remanded.' james stephen's son, james, a boy of twelve, was by his side in court, and a bystander slipped five shillings into his hand; but the father had to go back to his prison. he stuck to his point obstinately. he published a pamphlet, setting forth his case. he wrote letters to the 'public advertiser,' to which junius was then contributing. he again appealed to the courts, and finally called a meeting of his fellow prisoners. they resolved to break out in a body, and march to westminster, to remonstrate with the judges. stephen seized a turnkey, and took the keys by force; but, finding his followers unruly, was wise enough to submit. he was sent with three others to the 'new jail.' the prisoners in the king's bench hereupon rose, and attacked the wall with a pickaxe. soldiers were called in, and the riot finally suppressed.[ ] stephen, in spite of these proceedings, was treated with great humanity at the 'new jail;' and apparently without much severity at the king's bench to which he presently returned. 'blarney' thompson painted his portrait, and i possess an engraving with the inscription, 'veritas à quocunque dicitur à deo est.' not long ago a copy of this engraving was given to my brother by a friend who had seen it in a shop and recognised the very strong family likeness between james and his great-grandson, james fitzjames. stephen soon got out of prison. sir john webbe, at whose suit he had been arrested, agreed to pay the debts, gave him _l._ and settled an annuity of _l._ upon mrs. stephen. i hope that i may infer that sir john felt that his debtor had something to say for himself. the question of making a living, however, became pressing. stephen, on the strength, i presume, of his legal studies, resolved to be called to the bar. he entered at the middle temple; but had scarcely begun to keep his terms when the authorities interfered. his letters to the papers and attacks upon lord mansfield at the very time when junius was at the height of his power (i do not, i may observe, claim the authorship of the letters for james stephen) had, no doubt, made him a suspicious character. the benchers accordingly informed him that they would not call him to the bar, giving as their reasons his 'want of birth, want of fortune, want of education, and want of temper.' his friend, william jackson, hereupon printed a letter,[ ] addressing the benchers in the true junius style. he contrasts stephen with his persecutors. stephen might not know law latin, but he had read bracton and glanville and coke; he knew french and had read latin at aberdeen; he had been educated, it was true, in some 'paltry principles of honour and honesty,' while the benchers had learnt 'more useful lessons;' he had written letters to wilkes copied in all the papers; he had read locke, could 'harangue for hours upon social feelings, friendship, and benevolence,' and would trudge miles to save a family from prison, not considering that he was thereby robbing the lawyers and jailors of their fees. the benchers, it seems, had sworn the peace against him before sir john fielding, because he had made a friendly call upon a member of the society. they mistook a card of introduction for a challenge. jackson signs himself 'with the profoundest sense of your masterships' demerits, your masterships' inflexible detestor,' and probably did not improve his friend's position. stephen, thus rejected, entered the legal profession by a back door, which, if not reputable, was not absolutely closed. he entered into a kind of partnership with a solicitor who was the ostensible manager of the business, and could be put forward when personal appearance was necessary. stephen's imposing looks and manner, his acquaintance with commercial circles and his reputation as a victim of mansfield brought him a certain amount of business. he had, however, to undertake such business as did not commend itself to the reputable members of the profession. he had a hard struggle and was playing a losing game. he became allied with unfortunate adventurers prosecuting obscure claims against government, which, even when admitted, did not repay the costs incurred. he had to frequent taverns in order to meet his clients, and took to smoking tobacco and possibly to other indulgences. his wife, who was a delicate woman, was put to grievous shifts to make both ends meet. her health broke down, and she died at last on march , . she had brought him six children, of whom the eldest was nineteen and the youngest still under four.[ ] i shall speak directly of the two eldest. two daughters were taken in charge by their grandmother stephen, who was still living in scotland; while the two little ones remained with their father at stoke newington, where he now lived, ran about the common and learnt to ride pigs. james stephen himself lived four years more, sinking into deeper difficulties; an execution was threatened during his last illness, and he died in , leaving hardly enough to pay his debts.[ ] ii. james stephen, master in chancery i have now to tell the story of the second son, james, my grandfather, born in . his education, as may be anticipated, was desultory. when four or five years old, he was sent to a school at vauxhall kept by peter annet ( - ), the last of the deists who (in ) was imprisoned for a blasphemous libel. the elder stephen was then living at lambeth, and the choice of a schoolmaster seems to show that his opinions were of the free-thinking type. about the boy was sent to a school near his mother's family at poole. there at the early age of ten he fell desperately in love with his schoolmaster's daughter, aged fifteen, and was hurt by the levity with which his passion was treated. at the same period he became a poet, composed hymns, and wrote an epigram upon one of his father's creditors. he accompanied his father to the king's bench prison, and there christopher smart and others petted the lad, lent him books, and encouraged his literary aspirations. during his father's later troubles he managed to keep up a subscription to a circulating library and would read two volumes a day, chiefly plays and novels, and, above all, the 'grand cyrus' and other old-fashioned romances. his mother tried to direct him to such solid works as rapin's history, and he learnt her favourite young's 'night thoughts' by heart. he had no schooling after leaving poole, until, about , he was sent to a day school on kennington green, kept by a cheesemonger who had failed in business, and whose sole qualifications for teaching were a clerical wig and a black coat. here occurred events which profoundly affected his career. a schoolfellow named thomas stent, son of a stockbroker, became his warm friend. the parent stents forbade the intimacy with the son of a broken merchant. young stephen boldly called upon mrs. stent to protest against the sentence. she took a liking to the lad and invited him to her house, where the precocious youth fell desperately in love with anne stent, his schoolfellow's sister, who was four months his senior. the attachment was discovered and treated with ridicule. the girl, however, returned the boy's affection and the passion ran its course after the most approved fashion. the hero was forbidden the house and the heroine confined to her room. there were clandestine meetings and clandestine correspondence, in which the schoolboy found the advantage of his studies in the 'grand cyrus.' at last in the affair was broken off for the time by the despatch of james stephen to winchester, where one of his milner uncles boarded him and sent him to the school. his want of preparation prevented him from profiting by the teaching, and after the first half year his parents' inability to pay the bills prevented him from returning. he wrote again to miss stent, but received a cold reply, signifying her obedience to parental authority. for the next two years he learnt nothing except from his studies at the circulating library. his mother, sinking under her burthens, did what she could to direct him, and he repaid her care by the tenderest devotion. upon her death he thought for a moment of suicide. things were looking black indeed. his elder brother william now took a bold step. his uncle and godfather, william, who had quarrelled with the family after the early bankruptcy at poole, was understood to be prospering at st. christopher's. the younger william, who had been employed in a mercantile office, managed to beg a passage to the west indies, and threw himself upon the uncle's protection. the uncle received the boy kindly, promised to take him into partnership as a physician, and sent him back by the same ship in order to obtain the necessary medical training at aberdeen. he returned just in time. james had been thinking of volunteering under washington, and had then accepted the offer of a 'book-keeper's' place in jamaica. he afterwards discovered that a 'book-keeper' was an intermediate between the black slave-driver and the white overseer, and was doomed to a miserable and degrading life. it was now settled that he should go with william to aberdeen, and study law. he entered at lincoln's inn, and looked forward to practising at st. christopher's. the uncle refused to extend his liberality to james; but a student could live at aberdeen for _l._ a year; the funds were somehow scraped together; and for the next two sessions, - and - , james was a student at the marischal college. the town, he says, was filthy and unwholesome; but his scottish cousins were cordial and hospitable, the professors were kindly; and though his ignorance of latin and inability even to read the greek alphabet were hindrances, he picked up a little mathematics and heard the lectures of the great dr. beattie. his powers of talk and his knowledge of london life atoned for his imperfect education. he saw something of aberdeen society; admired and danced with the daughters of baillies, and was even tempted at times to forget his passion for anne stent, who had sent a chilling answer to a final appeal. in , stephen returned to london, and had to take part of his father's dwindling business. he thus picked up some scraps of professional knowledge. on the father's death, kind scottish relations took charge of the two youngest children, and his brother william soon sailed for st. christopher's. james was left alone. he appealed to the uncle, george milner, with whom he had lived at winchester, and who, having married a rich wife, was living in comfort at comberton, near cambridge. the uncle promised to give him _l._ a year to enable him to finish his legal education. he took lodgings on the strength of this promise, and resolved to struggle on, though still giving an occasional thought to washington's army. isolation and want of money naturally turn the thoughts of an energetic young man to marriage. james stephen resolved once more to appeal to anne stent. her father's doors were closed to him; but after long watching he managed to encounter her as she was walking. he declared his unaltered passion, and she listened with apparent sympathy. she showed a reserve, however, which was presently explained. in obedience to her parents' wishes, she had promised to marry a young man who was on his return from the colonies. the avowal led to a pathetic scene: anne stent wept and fainted, and finally her feelings became so clear that the couple pledged themselves to each other; and the young gentleman from the colonies was rejected. mr. stent was indignant, and sent his daughter to live elsewhere. the young couple, however, were not forbidden to meet, and found an ally in james stephen's former schoolfellow, thomas stent. he was now a midshipman in the royal navy; and he managed to arrange meetings between his sister and her lover. stent soon had to go to sea, but suggested an ingenious arrangement for the future. a lovely girl, spoken of as maria, was known to both the stents and passionately admired by the sailor. she lived in a boarding-house, and stent proposed that stephen should lodge in the same house, where he would be able both to see anne stent and to plead his friend's cause with maria. this judicious scheme led to difficulties. when, after a time, stephen began to speak to maria on behalf of stent, the lady at last hinted that she had another attachment, and, on further pressure, it appeared that the object of the attachment was stephen himself. he was not insensible, as he then discovered, to maria's charms. 'i have been told,' he says, 'that no man can love two women at once; but i am confident that this is an error.' the problem, however, remained as to the application of this principle to practice. the first consequence was a breach with the old love. miss stent and her lover were parted. maria, however, was still under age, and stephen was under the erroneous impression that a marriage with her would be illegal without the consent of her guardians, which was out of the question. while things were in this state, thomas stent came back from a cruise covered with glory. he hastened at once from portsmouth to his father, and persuaded the delighted old gentleman to restore his daughter to her home and to receive james stephen to the house as her acknowledged suitor. he then sent news of his achievement to his friend; and an interview became necessary, to which james stephen repaired about as cheerfully, he says, as he would have gone to tyburn tree. he had to confess that he had broken off the engagement to his friend's sister because he had transferred his affections to his friend's mistress. stent must have been a magnanimous man. he replied, after reflection, that the news would break his father's heart. the arrangement he had made must be ostensibly carried out. stephen must come to the elder stent's house and meet the daughter on apparently cordial terms. young stent's friendship was at an end; but stephen felt bound to adopt the prescribed plan. meanwhile stephen's finances were at a low ebb. his uncle, milner, had heard a false report, that the nephew had misrepresented the amount of his father's debts. he declined to pay the promised allowance, and stephen felt the insult so bitterly that, after disproving the story, he refused to take a penny from his uncle. he was once reduced to his last sixpence, and was only kept afloat by accepting small loans, amounting to about _l._, from an old clerk of his father's. at last, towards the end of a chance offered. the 'fighting parson,' bate, afterwards sir henry bate dudley, then a part proprietor of the 'morning post,' quarrelled with a fellow proprietor, joseph richardson, put a bullet into his adversary's shoulder and set up a rival paper, the 'morning herald.' a vacancy was thus created in the 'morning post,' and richardson gave the place to stephen, with a salary of two guineas a week. stephen had to report debates on the old system, when paper and pen were still forbidden in the gallery. at the trial of lord george gordon (february and , ) he had to be in westminster hall at four in the morning; and to stand wedged in the crowd till an early hour the next morning,[ ] when the verdict was delivered. he had then to write his report while the press was at work. the reporters were employed at other times upon miscellaneous articles; and stephen acquired some knowledge of journalism and of the queer world in which journalists then lived. they were a rough set of bohemians, drinking, quarrelling, and duelling, and indulging in coarse amusements. fortunately stephen's attendance upon the two ladies, for he still saw something of both, kept him from joining in some of his fellows' amusements. in there came a prospect of relief. the uncle in st. christopher's died and left all his property to his nephew william. william at once sent home supplies, which enabled his brother james to give up reporting, to be called to the bar (january , ) and in the next year to sail to st. christopher's. his love affair had unravelled itself. he had been suspended between the two ladies, and only able to decide that if either of them married he was bound to marry the other. miss stent seems to have been the superior of maria in intellect and accomplishments, though inferior in beauty. she undoubtedly showed remarkable forbearance and good feeling. ultimately she married james stephen before he sailed for the west indies. maria not long afterwards married someone else, and, to the best of my belief, lived happily ever afterwards. my grandfather's autobiography, written about forty years later, comes to an end at this point. it is a curious document, full of the strong religious sentiment by which he came to be distinguished; tracing the finger of providence in all that happened to him, even in the good results brought out of actions for which he expresses contrition; and yet with an obvious pleasure in recalling the vivid impressions of his early and vigorous youth. i omit parts of what is at times a confession of error. this much i think it only right to say. although he was guilty of some lapses from strict morality, for which he expresses sincere regret, it is also true that, in spite of his surroundings and the temptations to which a very young man thrown upon the london world of those days was exposed, he not only showed remarkable energy and independence and a strong sense of honour, but was to all appearance entirely free from degrading vices. his mother's influence seems to have impressed upon him a relatively high standard of morality, though he was a man of impetuous and ardent character, turned loose in anything but a pure moral atmosphere. james stephen had at this time democratic tendencies. he had sympathised with the rebellious colonists, and he had once covered himself with glory by a speech against slavery delivered in coachmakers' hall in presence of maria and miss stent. he had then got up the subject for the occasion. he was now to make practical acquaintance with it. his ship touched at barbadoes in december ; and out of curiosity he attended a trial for murder. four squalid negroes, their hands tied by cords, were placed at the bar. a planter had been found dead with injuries to his head. a negro girl swore that she had seen them inflicted by the four prisoners. there was no jury, and the witnesses were warned in 'the most alarming terms' to conceal nothing that made against the accused. stephen, disgusted by the whole scene, was glad to leave the court. he learnt afterwards that the prisoners were convicted upon the unsupported evidence of the girl. the owner of two of them afterwards proved an _alibi_ conclusively, and they were pardoned; but the other two, convicted on precisely the same evidence, were burnt alive.[ ] stephen resolved never to have any connection with slavery. during his stay at st. christopher's he had free servants, or, if he hired slaves, obtained their manumission. no one who had served him long remained in slavery, except one man, who was so good and faithful a servant that his owner refused to take even the full value when offered by his employer.[ ] other facts strengthened his hatred of the system. in he was engaged in prosecuting a planter for gross cruelty to two little negroes of and years of age. after long proceedings, the planter was fined _s._ a lawyer's practice at st. christopher's was supposed to be profitable. the sugar colonies were flourishing; and nelson, then captain of the 'boreas,' was giving proof of his character, and making work for the lawyers by enforcing the provisions of the navigation act upon recalcitrant american traders and their customers. stephen earned enough to be able to visit england in the winter of - . there he sought the acquaintance of wilberforce, who was beginning his crusade against the slave trade. information from a shrewd observer on the spot was, of course, of great value; and, although prudence forbade a public advocacy of the cause, stephen supplied wilberforce with facts and continued to correspond with him after returning to st. christopher's. the outbreak of the great war brought business. during - the harbour of st. christopher's was crowded with american prizes, and stephen was employed to defend most of them in the courts. his health suffered from the climate, and he now saved enough to return to england at the end of . he then obtained employment in the prize appeal court of the privy council, generally known as the 'cockpit.' he divided the leading business with dallas until his appointment to a mastership in chancery in . stephen was now able to avow his anti-slavery principles and soon became one of wilberforce's most trusted supporters. he was probably second only to zachary macaulay, who had also practical experience of the system. stephen's wife died soon after his return, and was buried at stoke newington on december , . he was thrown for a time into the deepest dejection. wilberforce forced himself upon his solitude, and with the consolations of so dear a friend his spirits recovered their elasticity. four years later the friendship was drawn still closer by stephen's marriage to the only surviving sister of wilberforce, widow of the rev. dr. clarke, of hull. she was a rather eccentric but very vigorous woman. she spent all her income, some _l._ or _l._ a year, on charity, reserving _l._ for her clothes. she was often to be seen parading clapham in rags and tatters. thomas gisborne, a light of the sect, once tore her skirt from top to bottom at his house, yoxall lodge, saying 'now, mrs. stephen, you _must_ buy a new dress.' she calmly stitched it together and appeared in it next day. she made her stepchildren read butler's 'analogy' before they were seven.[ ] but in spite of her oddities and severities, she seems to have been both respected and beloved by her nearest relations. the marriage probably marked stephen's final adhesion to the evangelical party. he maintained till his death the closest and most affectionate alliance with his brother-in-law wilberforce. the nature of their relations may be inferred from wilberforce's 'life and letters.' wilberforce owed much of his influence to the singular sweetness of his disposition and the urbanity of his manners. his wide sympathies interested him in many causes, and even his antagonists were not enemies. stephen, on the other hand, as mr. henry adams says, was a 'high-minded fanatic.' to be interested in any but the great cause was to rouse his suspicions. 'if you,' he once wrote to wilberforce, 'were wellington, and i were masséna, i should beat you by distracting your attention from the main point.' any courtesies shown by wilberforce to his opponents or to his old friend pitt seemed to his ardent coadjutor to be concessions to the evil principle. the continental war, he held, was a divine punishment inflicted upon england for maintaining the slave trade; and he expounded this doctrine in various pamphlets, the first of which, 'the crisis of the sugar colonies,' appeared in . yet stephen owes a small niche in history to another cause, upon which he bestowed no little energy. his professional practice had made him familiar with the course of the neutral trade. in october , almost on the day of the battle of trafalgar, he published a pamphlet called 'war in disguise.' the point of this, put very briefly, was to denounce a practice by which our operations against france and spain were impeded. american ships, or ships protected by a fraudulent use of the american flag, sailed from the hostile colonies, ostensibly for an american port, and then made a nominally distinct but really continuous voyage to europe. thus the mother countries were still able to draw supplies from the colonies. the remedy suggested in stephen's pamphlet was to revive the claims made by england in the seven years' war which entitled us to suppress the trade altogether. the policy thus suggested was soon embodied in various orders in council. the first was made on january , , by the whig government before they left office and a more stringent order followed in november. the last was drawn by perceval, the new chancellor of the exchequer. perceval was a friend of wilberforce and sympathised both with his religious views and his hatred of the slave trade. he soon became intimate with stephen, to whose influence the orders in council were generally attributed. brougham, the chief opponent of the policy, calls 'war in disguise' 'brilliant and captivating,' and says that its statement of facts was undeniable. i cannot say that i have found it amusing, but it is written with vigour and impressive earnestness. brougham calls stephen the 'father of the system'; and, whether the system were right or wrong, it had undoubtedly a great influence upon the course of events. i fear that my grandfather was thus partly responsible for the unfortunate war with the united states; but he clearly meant well. in any case, it was natural that perceval should desire to make use of his supporter's talents. he found a seat in parliament for his friend. stephen was elected member for tralee on feb. , , and in the parliament which met in was returned for east grimstead. stephen thus entered parliament as an advocate of the government policy. his revolutionary tendencies had long vanished. he delivered a speech upon the orders in council on may , , which was reprinted as a pamphlet.[ ] he defended the same cause against the agitation led by brougham in . a committee of the whole house was granted, and stephen was cross-examining one of brougham's witnesses (may , ), when a shot was heard in the lobby, and perceval was found to have been murdered by bellingham. stephen had just before been in perceval's company, and it was thought, probably enough, that he would have been an equally welcome victim to the maniac. he was made ill by the shock, but visited the wretched criminal to pray for his salvation. stephen, according to brougham, showed abilities in parliament which might have given him a leading position as a debater. his defective education, his want of tact, and his fiery temper, prevented him from rising to a conspicuous position. his position as holding a government seat in order to advocate a particular measure, and the fact that politics in general were to him subsidiary to the one great end of abolishing slavery, would also be against him. two incidents of his career are characteristic. the benchers of lincoln's inn had passed a resolution--'after dinner' it was said by way of apology--that no one should be called to the bar who had written for hire in a newspaper. a petition was presented to the house of commons upon which stephen made an effective speech (march , ). he put the case of a young man struggling against difficulties to obtain admission to a legal career and convicted of having supported himself for a time by reporting. then he informed the house that this was no imaginary picture, but the case of 'the humble individual who now addresses you.' immense applause followed; croker and sheridan expressed equal enthusiasm for stephen's manly avowal, and the benchers' representatives hastened to promise that the obnoxious rule should be withdrawn. when the allied sovereigns visited london in another characteristic incident occurred. they were to see all the sights: the king of prussia and field-marshal blücher were to be edified by hearing a debate; and the question arose how to make a debate conducted in so august a presence anything but a formality. 'get whitbread to speak,' suggested someone, 'and stephen will be sure to fly at him.' the plan succeeded admirably. whitbread asked for information about the proposed marriage of the princess charlotte to the prince of orange. stephen instantly sprang up and rebuked the inquirer. whitbread complained of the epithet 'indecent' used by his opponent. the speaker intervened and had to explain that the epithet was applied to mr. whitbread's proposition and not to mr. whitbread himself. stephen, thus sanctioned, took care to repeat the phrase; plenty of fire was introduced into the debate, and field-marshal blücher had the pleasure of seeing a parliamentary battle.[ ] whitbread was obnoxious to stephen as a radical and as an opponent of the orders in council. upon another question stephen was still more sensitive. when the topic of slavery is introduced, the reporters describe him as under obvious agitation, and even mark a sentence with inverted commas to show that they are giving his actual words. the slave-trade had been abolished before he entered parliament; but government was occasionally charged with slackness in adopting some of the measures necessary to carry out the law, and their supporters were accused of preserving 'a guilty silence.' such charges stung stephen to the quick. 'i would rather,' he exclaimed (june , ), 'be on friendly terms with a man who had strangled my infant son than support an administration guilty of slackness in suppressing the slave trade.' 'if lord castlereagh does not keep to his pledges,' he exclaimed (june , , when romilly spoke of the 'guilty silence'), 'may my god not spare me, if i spare the noble lord and his colleagues!' the government declined to take up a measure for the registration of slaves which stephen had prepared, and which was thought to be necessary to prevent evasions of the law. thereupon he resigned, in spite of all entreaties, accepting the chiltern hundreds, april , . brougham warmly praises his independence, and wishes that those who had spoken slightingly of his eloquence would take to heart his example. stephen had in been rewarded for his support of the orders in council by a mastership in chancery. romilly observes that the appointment was questionable, because stephen, though he was fully qualified by his abilities, was not sufficiently versed in the law. his friends said that it was no more than a fair compensation for the diminution of the prize business which resulted from the new regulations. he held the office till , when failing health caused his retirement. he lived for many years at kensington gore on the site of the present lowther lodge; and there from to wilberforce was his neighbour. his second wife, wilberforce's sister, died in october . after leaving parliament, he continued his active crusade against slavery. he published, it is said, four pamphlets in ; and in brought out the first volume of his 'slavery of the british west india colonies delineated.' this is an elaborate digest of the slave laws; and it was followed in by a second volume describing the actual working of the system. from about stephen had a small country house at missenden, bucks.[ ] here he was occasionally visited by his brother-in-law, and a terrace upon which they used to stroll is still known as 'wilberforce's walk.' stephen had a keen love of country scenery and had inherited from his father a love of long daily walks. i record from tradition one story of his prowess. in the early morning of his seventieth birthday, it is said, he left missenden on foot, walked twenty-five miles to hampstead, where he breakfasted with a son-in-law, thence walked to his office in london, and, after doing his day's work, walked out to kensington gore in the evening. it was a good performance, and i hope not injurious to his health, nor can i accept the suggestion that the old gentleman may have taken a lift in a pony carriage by which he used to be followed in his walks. he certainly retained his vigour, although he had suffered from some serious illnesses. he was attacked by yellow fever in the west indies, when his brother william and another doctor implored him to let them bleed him. on his obstinate refusal, they turned their backs in consultation, when he suddenly produced a bottle of port from under his pillow and took it off in two draughts. next day he left his bed and defended a disregard of professional advice which had been suggested by previous observations. he became a staunch believer in the virtues of port, and though he never exceeded a modest half-bottle, drank it steadily till the last. he was, i am told, and a portrait confirms the impression, a very handsome old man with a beautiful complexion, masses of white hair, and a keen thoughtful face. he died at bath, october , . he was buried at stoke newington by the side of his mother. there wilberforce had promised to be buried by his friend; but for him westminster abbey was a fitter resting-place.[ ] the master and his elder brother had retrieved the fortunes of the family. william returned to england, and died about . he left a family by his wife, mary forbes, and his daughter mary became the wife of archdeacon hodson and the mother of hodson of 'hodson's horse.' the master's younger brother, john, also emigrated to st. christopher's, practised at the bar, and ultimately became judge of the supreme court of new south wales in . he died at sydney in . john's fourth son, alfred, born at st. christopher's, august , , was called to the bar at lincoln's inn in , became in solicitor-general of tasmania, in judge, and in chief justice, of new south wales. he retired in , and was for a time lieutenant-governor of the colony. he received many honours, including the grand cross of the order of st. michael and st. george, and a seat in the privy council; and, from all that i have heard, i believe that he fully deserved them. he took an important part in consolidating the criminal law of the colonies, and near the end of his long career (at the age of ) became conspicuous in advocating a change in the law of divorce. the hardships suffered by women who had been deserted by bad husbands had excited his sympathy, and in spite of much opposition he succeeded in obtaining a measure for relief in such cases. sir alfred died on october , . he was twice married, and had five sons and four daughters by one marriage and four sons and five daughters by the other. one of his sons is a judge in the colony, and i believe that at the period of his death he had considerably more than a hundred living descendants in three generations. he was regarded with universal respect and affection as a colonial patriarch, and i hope that his memory may long be preserved and his descendants flourish in the growing world of australia. to the very end of his life, sir alfred maintained his affectionate relations with his english relatives, and kept up a correspondence which showed that his intellectual vigour was unabated almost to the last. iii. master stephen's children i have now to speak of the generation which preceded my own, of persons who were well known to me, and who were the most important figures in the little world in which my brother and i passed our infancy. james stephen, the master, was survived by six children, of whom my father was the third. i will first say a few words of his brothers and sisters. the eldest son, william, became a quiet country clergyman. he was vicar of bledlow, bucks (for nearly sixty years), and of great stagsden, beds, married a miss grace, but left no children, and died january , . i remember him only as a mild old gentleman with a taste for punning, who came up to london to see the great exhibition of , and then for the first time had also the pleasure of seeing a steamboat. steamboats are rare in the buckinghamshire hills, among which he had vegetated ever since their invention. henry john, the second son, born january , , was at the chancery bar. he married his cousin, mary morison, and from till he lived with his father at kensington gore. a nervous and retiring temper prevented him from achieving any great professional success, but he was one of the most distinguished writers of his time upon legal subjects. his first book, 'treatise on the principles of pleading in civil actions,' originally published in , has gone through many editions both in england and america. chancellor kent, as allibone's dictionary informs me, calls it 'the best book that ever was written in explanation of the science,' and many competent authorities have assured me that it possesses the highest merits as a logical composition, although the law of which it treats has become obsolete. the reputation acquired by this book led to his appointment to a seat in the common law commission formed in ; and in the same year he became serjeant-at-law. his brother commissioners became judges, but his only promotion was to a commissionership of bankruptcy at bristol in .[ ] in he published a 'summary of the criminal law,' which was translated into german. his edition of blackstone's commentaries first appeared in . it contained from the first so much of his own work as to be almost an independent performance. in later editions he introduced further changes to adapt it to later legislation, and it is still a standard book. he lived after the bristol appointment at cleevewood in the parish of mangotsfield. he retired in february , and lived afterwards in clifton till his death on november , . i remember him as a gentle and courteous old man, very shy, and, in his later years, never leaving his house, and amusing himself with speculating upon music and the prophecies. he inherited apparently the nervous temperament of his family with less than their usual dash of the choleric.[ ] my uncle, sir george, declares that the serjeant was appointed to a judgeship by lord lyndhurst, but immediately resigned, on the ground that he felt that he could never bear to pass a capital sentence.[ ] i record the anecdote, not as true (i have reasons for thinking it erroneous), but as indicating the impression made by his character. the fourth brother, george, born about , was a man of very different type. in him appeared some of the characteristics of his irascible and impetuous grandfather. his nature was of coarser fibre than that of his sensitive and nervous brothers. he was educated at magdalene college, cambridge; and was afterwards placed in the office of the freshfields, the eminent firm of solicitors. he had, i have been told, an offer of a partnership in the firm, but preferred to set up for himself. he was employed in the rather unsavoury duty of procuring evidence as to the conduct of queen caroline upon the continent. in he undertook an inquiry ordered by the house of commons in consequence of complaints as to the existence of a slave trade in mauritius. he became acquainted with gross abuses, and resolved thereupon to take up the cause with which his family was so closely connected. he introduced himself to o'connell in order to learn some of the secrets of the great art of agitation. fortified by o'connell's instructions, he proceeded to organise the 'celebrated agency committee.' this committee, headed by zachary macaulay, got up meetings and petitions throughout the country, and supported buxton in the final assault upon slavery. for his services in the cause, george stephen was knighted in . he showed a versatile ability by very miscellaneous excursions into literature. he wrote in 'adventures of a gentleman in search of a horse,' which became popular, and proved that, besides understanding the laws relating to the subject, he was the only one, as i believe, of his family who could clearly distinguish a horse from a cow. a very clever but less judicious work was the 'adventures of an attorney in search of practice,' first published in , which gave or was supposed to give indiscreet revelations as to some of his clients. besides legal pamphlets, he proved his sound evangelicalism by a novel called 'the jesuit at cambridge' ( ), intended to unveil the diabolical machinations of the catholic church. an unfortunate catastrophe ruined his prospects. he had founded a society for the purchase of reversions and acted as its solicitor. it flourished for some years, till misunderstandings arose, and sir george had to retire, besides losing much more than he could afford. he then gave up the profession which he had always disliked, was called to the bar in and practised for some years at liverpool, especially in bankruptcy business. at last he found it necessary to emigrate and settled at melbourne in . he found the colonists at least as perverse as the inhabitants of his native country. he wrote a 'life of christ' (not after the plan of renan) intended to teach them a little christianity, and a (so-called) life of his father, which is in the main an exposition of his own services and the ingratitude of mankind. the state of australian society seemed to him to justify his worst forebodings; and he held that the world in general was in a very bad way. it had not treated him too kindly; but i fear that the complaints were not all on one side. he was, i suppose, one of those very able men who have the unfortunate quality of converting any combination into which they enter into an explosive compound. he died at melbourne, june , .[ ] the master's two daughters were sibella, born , and anne mary, whose birth caused the death of her mother in december . sibella married w. a. garratt, who was second wrangler and first smith's prizeman in . he was a successful barrister and a man of high character, though of diminutive stature. 'mr. garratt,' a judge is reported to have said to him, 'when you are addressing the court you should stand up.' 'i am standing up, my lord.' 'then, mr. garratt, you should stand upon the bench.' 'i am standing upon the bench, my lord.' he had been disinherited by his father, i have heard, for preferring a liberal profession to trade, but upon his father's death his brothers made over to him the share which ought to have been left to him. he was for many years on the committee of the church missionary society, and wrote in defence of evangelical principles.[ ] his houses at hampstead and afterwards at brighton were among our youthful resorts; and my aunt remains in my memory as a gentle, kindly old lady, much afflicted by deafness. mr. garratt died in , aged , and his wife at the same age on february , . anne mary, my other aunt, married thomas edward dicey. he was a schoolfellow and college friend of my father. i may observe, for the sake of cambridge readers, that, after passing his first year of university life at oxford, he came to cambridge ignorant of mathematics and in delicate health, which prevented him from reading hard. in spite of this, he was senior wrangler in --a feat which would now be impossible for a newton. he was the calmest and gentlest of human beings, and to his calmness was attributable the fact that he lived till , although when he was twenty the offices refused to insure his life for a year on any terms. those who knew him best regarded him as a man of singular wisdom and refinement. he lived, till he came to london for the later education of his boys, in a small country house at claybrook, near lutterworth, and was proprietor of the 'northampton mercury,' one of the oldest papers in england, founded, i believe, by his grandfather. this claybrook house was the scene of some of our happiest childish days. my aunt was a most devoted mother of four sons, whose early education she conducted in great part herself. in later years she lived in london, and was the most delightful of hostesses. her conversation proved her to possess a full share of the family talents, and although, like her sister, she suffered from deafness, a talk with her was, to my mind at least, as great a treat as a talk with the most famous performers in the social art. after her husband's death, she was watched by her youngest son, frank, who had become an artist, with a tender affection such as is more frequently exhibited by a daughter to an infirm father. she died on october , , and has been followed by two of her sons, henry and frank. the two surviving sons, edward and albert venn dicey, vinerian professor of law at oxford, are both well known in the literary and political world. i must now tell so much as i know, and is relevant to my purpose, of my father's life. james stephen, fourth at least of the name, and third son of the master, was born january , , at lambeth, during his father's visit to england. he had an attack of small-pox during his infancy, which left a permanent weakness of eyesight. the master's experience had not taught him the evils of desultory education. james, the younger, was, i believe, under various schoolmasters, of whom i can only mention john prior estlin, of st. michael's hill, bristol, a unitarian, and the rev. h. jowett, of little dunham, norfolk, who was one of the adherents to evangelicalism. the change probably marks the development of his father's convictions. he entered trinity hall, cambridge, in . at that time the great evangelical leader at cambridge was isaac milner, the president of queens' college. milner's chief followers were william farish, of magdalene, and joseph jowett, of trinity hall, both of them professors. farish, as i have said, married my grandfather's sister, and the colleges were probably selected for my father and his brother george with a view to the influence of these representatives of the true faith. the 'three or four years during which i lived on the banks of the cam,' said my father afterwards,[ ] 'were passed in a very pleasant, though not a very cheap, hotel. but had they been passed at the clarendon, in bond street, i do not think that the exchange would have deprived me of any aids for intellectual discipline or for acquiring literary and scientific knowledge.' that he was not quite idle i infer from a copy of brotier's 'tacitus' in my possession with an inscription testifying that it was given to him as a college prize. he took no university honours, took the degree of ll.b. in , and was called to the bar at lincoln's inn november , . his father had just become master in chancery, and was able to transfer some of his clients to the son. james the younger thus gained some experience in colonial matters, and 'employed himself in preparing a digest of the colonial laws in general.'[ ] he obtained leave from the third earl bathurst, then and for many years afterwards the head of the colonial department, to examine the official records for this purpose. in lord bathurst, who was in general sympathy with the opinions of the clapham sect, appointed james stephen counsel to the colonial department. his duties were to report upon all acts of colonial legislature. he received a fee of three guineas for each act, and the office at first produced about _l._ a year. after a time the post became more laborious. he was receiving , _l._ a year some ten years after his appointment, with, of course, a corresponding increase of work.[ ] the place was, however, compatible with the pursuit of the profession, and my father in a few years was making , _l._ a year, and was in a position which gave him as fair a prospect of obtaining professional honours as was enjoyed by any man of his standing. the earliest notice which i have found of him from an outsider is a passage in crabb robinson's diaries.[ ] robinson met him on july , , and describes him as a 'pious sentimentalist and moralist,' who spoke of his prospects 'with more indifference than was perhaps right in a layman.' the notice is oddly characteristic. from my father was for nine years a member of the committee of the church missionary society, after which time his occupations made attendance impossible. i have already indicated the family connection with the clapham sect, and my father's connection was now to be drawn still closer. on december , , he married jane catherine venn, second daughter of the rev. john venn, of clapham. iv. the venns my brother was of opinion that he inherited a greater share of the venn than of the stephen characteristics. i certainly seem to trace in him a marked infusion of the sturdy common sense of the venns, which tempered the irritable and nervous temperament common to many of the stephens. the venns were of the very blue blood of the party. they traced their descent through a long line of clergymen to the time of elizabeth.[ ] the troubles of two loyalist venns in the great rebellion are briefly commemorated in walker's 'sufferings of the clergy.' the first venn who is more than a name was a richard venn, who died in . his name occasionally turns up in the obscurer records of eighteenth-century theology. he was rector of st. antholin's, in the city of london, and incurred the wrath of the pugnacious warburton and of warburton's friend (in early days) conyers middleton. he ventured to call middleton an 'apostate priest'; and middleton retorted that if he alluded to a priest as the 'accuser,' everyone would understand that he meant to refer to mr. venn. in fact, venn had the credit of having denounced thomas bundle, who, according to pope, 'had a heart,' and according to venn was a deist in disguise. bundle's reputation was so far damaged that his theology was thought too bad for gloucester, and, like other pieces of damaged goods, he was quartered upon the irish church. richard venn married the daughter of the jacobite conspirator john ashton, executed for high treason in . his son henry, born march , , made a more enduring mark and became the chief light of the movement which was contemporaneous with that led by wesley and whitefield, though, as its adherents maintained, of independent origin. he was a sturdy, energetic man. as a boy he had shown his principles by steadily thrashing the son of a dissenting minister till he became the terror of the young schismatic. he played (his biographer says) in for surrey against all england, and at the end of the match gave his bat to the first comer, saying, 'i will never have it said of me, well struck, parson!' he was ordained a few days later, and was 'converted by law's "serious call."' while holding a curacy at clapham he became a friend of john thornton, father of the better known henry thornton. john was a friend of john newton and of the poet cowper, to whom he allowed money for charitable purposes, and both he and his son were great lights at clapham. from to venn was vicar of huddersfield, and there became famous for eloquence and energy. his 'complete duty of man'--the title is adopted in contrast to the more famous 'whole duty of man'--was as the sound of a trumpet to the new party. for three generations it was the accepted manual of the sect and a trusted exposition of their characteristic theology. venn's health suffered from his pastoral labours at huddersfield; and from till near his death (june , ) he was rector of yelling, in huntingdonshire. there his influence extended to the neighbouring university of cambridge. the most eminent cambridge men of the day, paley, and watson, and hey, were tending to a theology barely distinguishable from the unitarianism which some of them openly adopted. but a chosen few, denounced by their enemies as methodistical, sought the spiritual guidance of henry venn. the most conspicuous was charles simeon ( - ), who for many years was the object of veneration and of ridicule for his uncouth eloquence in the pulpit of trinity church. even to my own day, his disciples and disciples' disciples were known to their opponents as 'sims.'[ ] john venn, son of this henry venn, born at clapham in , was brought up in the true faith. he was a pupil of joseph milner, elder brother of the more famous isaac milner, and was afterwards, like his father, at sidney sussex college. simeon was one of his intimate friends. in venn became rector of clapham; and there provided the spiritual food congenial to the thorntons, the shores, the macaulays, the wilberforces, and the stephens. the value of his teaching may be estimated by any one who will read three volumes of sermons published posthumously in . he died july , ; but his chief claim to remembrance is that he was the projector and one of the original founders of the church missionary society, in , which was, as it has continued to be, the most characteristic product of the evangelical party.'[ ] john venn's children were of course intimate with the stephens. in later life the sons, henry and john, had a great influence upon my father; henry in particular was a man of very remarkable character. he was educated by his father till , when he was sent to live with farish, then lucasian professor and resident at chesterton, close to cambridge. he was at queen's college, then flourishing under the patronage of evangelical parents attracted by milner's fame; was nineteenth wrangler in , and for a time was fellow and tutor of his college. in wilberforce gave him the living of drypool, a suburb of hull, and there in he married martha, fourth daughter of nicholas sykes, of swanland, yorkshire. in he became vicar of st. john's, holloway, in the parish of islington. about he became subject to an affection of the heart caused mainly by his efforts in carrying his wife upstairs during her serious illness. the physician told him that the heart might possibly adapt itself to a new condition, but that the chances were greatly in favour of a fatal end to the illness. he was forced to retire for two years from work, while his wife's illness developed into a consumption. she died march , . venn's closest relations used to speak with a kind of awe of the extraordinary strength of his conjugal devotion. he was entreated to absent himself from some of the painful ceremonials at her funeral, but declined. 'as if anything,' he said, 'could make any difference to me now.' his own health, however, recovered contrary to expectation; and he resolutely took up his duties in life. on october , he was appointed honorary secretary to the church missionary society, having been on the committee since , and he devoted the rest of his life to its service with unflagging zeal. he gave up his living of _l._ a year and refused to take any remuneration for his work. he was appointed by bishop blomfield to a prebend at st. paul's, but received and desired no other preferment. he gradually became infirm, and a few months before his death, january , , was compelled to resign his post. henry venn laboured through life in the interests of a cause which seemed to him among the highest, and which even those who hold entirely different opinions must admit to be a worthy one, the elevation that is, moral and spiritual, of the lower races of mankind. he received no rewards except the approval of his conscience and the sympathy of his fellows; and he worked with an energy rarely paralleled by the most energetic public servant. his labours are described in a rather shapeless book[ ] to which i may refer for full details. but i must add a few words upon his character. venn was not an eloquent man either in the pulpit or on paper; nor can i ascribe him any power of speculative thought. he had been from youth steeped in the evangelical doctrine, and was absolutely satisfied with it to the last. 'i knew,' he once said, 'as a young man all that could be said against christianity, and i put the thoughts aside as temptations of the devil. they have never troubled me since.' nor was he more troubled by the speculative tendencies of other parties in the church. his most obvious mental characteristic was a shrewd common sense, which one of his admirers suggests may have been caught by contagion in his yorkshire living. in truth it was an innate endowment shared by others of his family. in him it was combined with a strong sense of humour which is carefully kept out of his writing, and which, as i used to fancy, must have been at times a rather awkward endowment. the evangelical party has certain weaknesses to which, so far as i know, my uncle contrived to shut his eyes. the humour, however, was always bubbling up in his talk, and combined as it was with invariable cheeriness of spirit, with a steady flow of the strongest domestic affection, and with a vigorous and confident judgment, made him a delightful as well as an impressive companion. although outside of the paths which lead to preferment or to general reputation, he carried a great weight in all the counsels of his party. his judgment, no doubt, entitled him to their respect. though a most devoted clergyman, he had some of the qualities which go to make a thoroughly trustworthy lawyer. he was a marked exception to the famous observation of clarendon that 'the clergymen understand the least, and take the worst measure of human affairs of all mankind that can write and read.' henry venn's example showed that the clergyman's gown need not necessarily imply disqualification for a thorough man of business. he was a man to do thoroughly whatever he undertook. 'what a mercy it is,' said his sister emelia, 'that henry is a good man, for good or bad he could never repent.' his younger brother, john, was a man of much less intellectual force but of singular charm of character. in he became incumbent of a church at hereford in the gift of the simeon trustees, and lived there till his death in , having resigned his living about . he had the simplicity of character of a dr. primrose, and was always overflowing with the kindliest feelings towards his relatives and mankind in general. his enthusiasm was, directed not only to religious ends but to various devices for the physical advantage of mankind. he set up a steam corn mill in hereford, which i believe worked very successfully for the supply of pure flour to his parishioners, and he had theories about the production of pigs and poultry upon which he could dilate with amusing fervour. he showed his principles in a public disputation with a roman catholic priest at hereford. i do not know that either of them converted anybody; but john venn's loveableness was not dependent upon dialectical ability. he was accepted, i may say, as the saint of our family; and aylstone hill, hereford, where he lived with his unmarried sister emelia, (a lady who in common sense and humour strongly resembled her brother henry), was a place of pilgrimage to which my father frequently resorted, and where we all found a model of domestic happiness. the youngest sister, caroline, married the rev. ellis batten, a master at harrow school. he died young in , and she was left with two daughters, the elder of whom, now mrs. russell gurney, survives, and was in early years one of the most familiar members of our inner home circle. i must now speak of my mother. 'in one's whole life,' says gray, 'one can never have any more than a single mother'--a trite observation, he adds, which yet he never discovered till it was too late. those who have made the same discovery must feel also how impossible it is to communicate to others their own experience, and indeed how painful it is even to make the attempt. almost every man's mother, one is happy to observe, is the best of mothers. i will only assert what i could prove by evidence other than my own impressions. my mother, then, must have been a very handsome young woman. a portrait--not a very good one--shows that she had regular features and a fine complexion, which she preserved till old age. her beauty was such as implies a thoroughly good constitution and unbroken health. she was too a rather romantic young lady. she knew by heart all such poetry as was not excluded from the sacred common; she could repeat cowper and wordsworth and campbell and scott, and her children learnt the 'mariners of england' and the 'death of marmion' from her lips almost before they could read for themselves. she accepted, of course, the religious opinions of her family, but in what i may call a comparatively mild form. if she had not the humour of her brother henry and her sister emelia, she possessed an equal amount of common sense. her most obvious characteristic as i knew her was a singular serenity, which indicated a union of strong affection and sound judgment with an entire absence of any morbid tendencies. her devotion to her husband and children may possibly have influenced her estimate of their virtues and talents. but however strong her belief in them, it never betrayed her to partiality of conduct. we were as sure of her justice as of her affection. her servants invariably became attached to her. our old nurse, elizabeth francis, lived with us for forty-three years, and her death in was felt as a deep family sorrow. the quaint yorkshire cook, whose eccentricities had given trouble and whose final parting had therefore been received with equanimity on the eve of a journey abroad, was found calmly sitting in our kitchen when we returned, and announcing, truly as it turned out, that she proposed to stay during the rest of my mother's life. but this domestic loyalty was won without the slightest concession of unusual privileges. her characteristic calmness appeared in another way. she suffered the heaviest of blows in the death of her husband, after forty-five years of unbroken married happiness, and of her eldest son. on both occasions she recovered her serenity and even cheerfulness with marked rapidity, not certainly from any want of feeling, but from her constitutional incapacity for dwelling uselessly upon painful emotions. she had indeed practised cheerfulness as a duty in order to soothe her husband's anxieties, and it had become part of her character. the moral equilibrium of her nature recovered itself spontaneously as wounds cure by themselves quickly in thoroughly sound constitutions. she devoted her spare time in earlier years and almost her whole time in later life to labours among the poor, but was never tempted to mere philanthropic sentimentalism. a sound common sense, in short, was her predominant faculty; and, though her religious sentiments were very strong and deep, she was so far from fanatical that she accepted with perfect calmness the deviations of her children from the old orthodox faith. my brother held, rightly as i think, that he inherited a large share of these qualities. to my father himself, the influence of such a wife was of inestimable value. he, the most nervous, sensitive of men, could always retire to the serene atmosphere of a home governed by placid common sense and be soothed by the gentlest affection. how necessary was such a solace will soon be perceived. v. james stephen, colonial under-secretary the young couple began prosperously enough. my father's business was increasing; and after the peace they spent some summer vacations in visits to the continent. they visited switzerland, still unhackneyed, though byron and shelley were celebrating its charms. long afterwards i used to hear from my mother of the superlative beauties of the wengern alp and the staubbach (though she never, i suspect, read 'manfred'), and she kept up for years a correspondence with a monk of the hospital on the st. bernard. her first child, herbert venn stephen, was born september , ; and about this time a change took place in my father's position. he had a severe illness, caused, it was thought, by over-work. he had for a time to give up his chancery business and then to consider whether he should return to it and abandon the colonial office, or give up the bar to take a less precarious position now offered to him in the office. his doubts of health and his new responsibilities as a father decided him. on january , , he was appointed counsel to the colonial office, and on august following counsel to the board of trade, receiving , _l._ a year for the two offices, and abandoning his private practice. a daughter, frances wilberforce, was born on september , , but died on july following. a quaint portrait in which she is represented with her elder brother, in a bower of roses, is all that remains to commemorate her brief existence. for some time herbert was an only son; and a delicate constitution made his education very difficult. my father hit upon the most successful of several plans for the benefit of his children when, at the beginning of , he made arrangements under which frederick waymouth gibbs became an inmate of our family in order to give my brother a companion. although this plan was changed three years later, frederick gibbs became, as he has ever since remained, a kind of adopted brother to us, and was in due time in the closest intimacy with my brother james fitzjames. after his acceptance of the permanent appointment my father's energies were for twenty-two years devoted entirely to the colonial office. i must dwell at some length upon his character and position, partly for his sake and partly because it is impossible without understanding them to understand my brother's career. my brother's whole life was profoundly affected, as he fully recognised, by his father's influence. fitzjames prefixed a short life of my father to a posthumous edition of the 'essays in ecclesiastical biography.' the concluding sentence is significant of the writer's mood. 'of sir james stephen's private life and character,' he says, 'nothing is said here, as these are matters with which the public has no concern, and on which the evidence of his son would not be impartial.' my brother would, i think, have changed that view in later years. i, at any rate, do not feel that my partiality, whatever it may be, is a disqualification for attempting a portrait. and, though the public may have no right to further knowledge, i think that such part of the public as reads these pages may be the better for knowing something more of a man of whom even a son may say that he was one of the conspicuously good and able men of his generation. the task, however, is no easy one. his character, in the first place, is not one to be defined by a single epithet. 'surely,' said his friend sir henry taylor to him upon some occasion, 'the simple thing to do is so and so.' he answered doubtfully, adding, 'the truth is i am _not_ a simple man.' 'no,' said taylor, 'you are the most composite man that i have met with in all my experience of human nature.'[ ] taylor entered the colonial office in the beginning of , and soon formed an intimate and lifelong friendship with his colleague. his autobiography contains some very vivid records of the impression made by my father's character upon a very fine observer in possession of ample opportunities for knowledge. it does something, though less than i could wish, to diminish another difficulty which encounters me. my father's official position necessarily throws an impenetrable veil over the work to which his main energies were devoted. his chief writings were voluminous and of great practical importance: but they repose in the archives of the colonial office; and even such despatches of his as have seen the light are signed by other names, and do not necessarily represent his opinions. 'the understanding,' says my brother in the 'life,' 'upon which permanent offices in the civil service of the crown are held is that those who accept them shall give up all claim to personal reputation on the one hand and be shielded from personal responsibility on the other.' of this compact, as fitzjames adds, neither my father nor his family could complain. his superiors might sometimes gain credit or incur blame which was primarily due to the adoption of his principles. he was sometimes attacked, on the other hand, for measures attributed to his influence, but against which he had really protested, although he was precluded from any defence of his conduct. to write the true history of our colonial policy in his time would be as much beyond my powers as it is outside my purpose; to discriminate his share in it would probably be now impossible for anyone. i can only take a few hints from sir henry taylor and from my brother's account which will sufficiently illustrate some of my father's characteristics. 'for a long period,' says taylor,[ ] 'stephen might better have been called the "colonial department" itself than "counsel to the colonial department."' during lord glenelg's tenure of office ( - ), and for many years before and after, 'he literally ruled the colonial empire.'[ ] this involved unremitting labour. taylor observes that stephen 'had an enormous appetite for work,' and 'rather preferred not to be helped. i,' he adds, humorously, 'could make him perfectly welcome to any amount of it.' for years he never left london for a month, and, though in the last five years preceding his retirement in , he was absent for rather longer periods, he took a clerk with him and did business in the country as regularly as in town. his duties were of the most various kind. the colonies, as my brother observes, were a collection of states varying from youthful nations like canada down to a small settlement of germans on the rock of heligoland; their populations differed in race, laws, religion, and languages; the authority of the crown varied from absolute power over an infant settlement to supremacy over communities in some essential respects independent. my father's duty was to be familiar with every detail of these complicated relations, to know the state of parties and local politics in each colony, and to be able to advise successive secretaries of state who came without special preparation to the task. he had to prepare drafts of all important despatches and of the numerous acts of parliament which were required during a period of rapid and important changes. 'i have been told,' says my brother, elsewhere,[ ] that 'he was a perfectly admirable under-secretary of state, quick, firm, courageous, and a perfect master of his profession and of all the special knowledge which his position required, and which, i believe, no other man in england possessed to anything like the same extent.' a man of long experience, vast powers of work, and decided views naturally obtained great influence with his superiors; and that such an influence was potent became generally believed among persons interested in and often aggrieved by the policy of the government. stephen was nicknamed as 'king stephen,' or 'mr. over-secretary stephen,' or 'mr. mother-country stephen.' the last epithet, attributed to charles buller, meant that when the colonies were exhorted to pay allegiance to the mother country they were really called upon to obey the irrepressible under-secretary. i dimly divine, though i am not much of a politician, that there is an advantage in criticising the permanent official in a department. he cannot answer an attack upon him, and it is also an attack upon the superior who has yielded to his influence. at any rate, though my father received the warmest commendation from his official superiors, he acquired a considerable share of unpopularity. for this there were other reasons, of which i shall presently speak. little as i can say of the details of this policy in which he was concerned, there are one or two points of which i must speak. my father had accepted the appointment, according to taylor, partly with the view of gaining an influence upon the slavery question. in this, says taylor, he was eminently successful, and his success raised the first outcry against him.[ ] his family and friends were all, as i have shown, deeply engaged in the anti-slavery agitation. as an official he could of course take no part in such action, and his father had to give solemn assurances that the son had given him no information. but the power of influencing the government in the right direction was of equal importance to the cause. the elaborate act, still in force, by which previous legislation against the slave trade was finally consolidated and extended was passed in ( george iv. cap. ). it was drawn by my father and dictated by him in one day and at one sitting.[ ] it fills twenty-three closely printed octavo pages. at this time the government was attempting to adopt a middle course between the abolitionists and the planters by passing what were called 'meliorating acts,' acts, that is, for improving the treatment of the slaves. the colonial assemblies declined to accept the proposals. the colonial office remonstrated, obtained reports and wrote despatches, pointing out any abuses discovered: the despatches were laid before parliament and republished by zachary macaulay in the 'anti-slavery reporter.' agitation increased. an insurrection of slaves in jamaica in , cruelly suppressed by the whites, gave indirectly a death blow to slavery. abolition, especially after the reform bill, became inevitable, but the question remained whether the grant of freedom should be immediate or gradual, and whether compensation should be granted to the planters. the problem had been discussed by stephen, taylor, and lord howick, afterwards earl grey ( - ), and various plans had been considered. in march , however, mr. stanley, afterwards lord derby, became head of the colonial office; and the effect was at first to reduce stephen and taylor to their 'original insignificance.' they had already been attacked in the press for taking too much upon themselves, and stanley now prepared a measure without their assistance. he found that he had not the necessary experience for a difficult task, and was soon obliged to have recourse to stephen, who prepared the measure which was finally passed. the delay had made expedition necessary if slavery was not to continue for another year. my father received notice to draw the act on saturday morning. he went home and completed his task by the middle of the day on monday. the act ( & william iv. c. ) contains sixty-six sections, fills twenty-six pages in the octavo edition of the statute-book, and creates a whole scheme of the most intricate and elaborate kind. the amanuensis to whom it was dictated used to tell the story as an illustration of his own physical powers. at that time, as another clerk in the office tells my brother, 'it was no unusual thing for your father to dictate before breakfast as much as would fill thirty sides of office folio paper,' equal to about ten pages of the 'edinburgh review,' the exertion, however, in this instance was exceptional: only upon one other occasion did my father ever work upon a sunday; it cost him a severe nervous illness and not improbably sowed the seed of later attacks.[ ] i can say little of my father's action in later years. on september , , he was appointed to the newly created office of assistant under-secretary of state. he had, says taylor, for many years done the work of the under-secretary, and he objected to doing it any longer on the same terms. the under-secretary complained to lord melbourne that his subordinate desired to supplant him, and got only the characteristic reply, 'it looks devilishly like it.'[ ] in he had to retire, and my father became under-secretary in his place, with a salary of , _l._ a year, on february of that year, and at the same time gave up his connection with the board of trade. he was actively concerned in the establishment of responsible government in canada. the relations with that colony were, as my brother says, 'confused and entangled in every possible way by personal and party questions at home and by the violent dissensions which existed in canada itself.' the difficulty was aggravated, he adds, by the fact that my father, whatever his personal influence, had no authority whatever; and although his principles were ultimately adopted he had constantly to take part in measures which he disapproved. 'stephen's opinions,' says taylor, 'were more liberal than those of most of his chiefs, and at one period he gave more power than he intended to a canadian assembly from placing too much confidence in their intentions.'[ ] upon this matter, however, taylor admits that he was not fully informed. i will only add that my father appears to have shared the opinions then prevalent among the liberal party that the colonies would soon be detached from the mother country. on the appointment of a governor-general of canada, shortly before his resignation of office, he observes in a diary that it is not unlikely to be the last that will ever be made.[ ] i have already noticed my father's unpopularity. it was a not unlikely result of exercising a great and yet occult influence upon a department of government which is likely in any case to be more conspicuous for its failures than for its successes. there were, however, more personal reasons which i think indicate his peculiar characteristics. i have said enough to illustrate his gluttony of work. i should guess that, without intending it, he was also an exacting superior. he probably over-estimated the average capacity for work of mankind, and condemned their indolence too unsparingly. certainly his estimate of the quantity of good work got out of officials in a public office was not a high one. nor, i am sure, did he take a sanguine view of the utility of such work as was done in the colonial office. 'colonial office being an impotency' (as carlyle puts it in his 'reminiscences,' 'as stephen inarticulately, though he never said or whispered it, well knew), what could an earnest and honest kind of man do but try to teach you how not to do it?'[ ] i fancy that this gives in carryle's manner the unpleasant side of a true statement. my father gave his whole life to work, which he never thought entirely satisfactory, although he did his duty without a word of complaint. once, when advising taylor to trust rather to literature than to government employment, he remarked, 'you may write off the first joints of your fingers for them, and then you may write off the second joints, and all that they will say of you is, "what a remarkably short-fingered man!"'[ ] but he had far too much self-respect to grumble at the inevitable results of the position. my father, however, was a man of exquisitely sensitive nature--a man, as my mother warned his children, 'without a skin,' and he felt very keenly the attacks of which he could take no notice. in early days this had shown itself by a shyness 'remarkable,' says taylor, beyond all 'shyness that you could imagine in anyone whose soul had not been pre-existent in a wild duck.'[ ] his extreme sensibility showed itself too in other ways. he was the least sanguine of mankind. he had, as he said in a letter, 'a morbidly vivid perception of possible evils and remote dangers.' a sensitive nature dreads nothing so much as a shock, and instinctively prepares for it by always anticipating the worst. he always expected, if i may say so, to be disappointed in his expectations. the tendency showed itself in a general conviction that whatever was his own must therefore be bad. he could not bear to have a looking-glass in his room lest he should be reminded of his own appearance. 'i hate mirrors vitrical and human,' he says, when wondering how he might appear to others. he could not bear that his birthday should be even noticed, though he did not, like swift, commemorate it by a remorseful ceremonial. he shrank from every kind of self-assertion; and in matters outside his own province often showed to men of abilities very inferior to his own a deference which to those who did not know him might pass for affectation. the life of a recluse had strong attractions for him. he was profoundly convinced that the happiest of all lives was that of a clergyman, who could devote himself to study and to the quiet duties of his profession. circumstances had forced a different career upon him. he had as a very young man taken up a profession which is not generally supposed to be propitious to retiring modesty; and was ever afterwards plunged into active business, which brought him into rough contact with politicians and men of business of all classes. the result was that he formed a manner calculated to shield himself and keep his interlocutors at a distance. it might be called pompous, and was at any rate formal and elaborate. the natural man lurked behind a barrier of ceremony, and he rarely showed himself unless in full dress. he could unbend in his family, but in the outer world he put on his defensive armour of stately politeness, which even for congenial minds made familiarity difficult if it effectually repelled impertinence. but beneath this sensitive nature lay an energetic and even impetuous character, and an intellect singularly clear, subtle, and decisive. his reasons were apt to be complicated, but he came to very definite results, and was both rapid and resolute in action. he had 'a strong will,' says taylor, 'and great tenacity of opinion. when he made a mistake, which was very seldom considering the prodigious quantity of business he despatched, his subordinates could rarely venture to point it out; he gave them so much trouble before he could be evicted from his error.' in private life, as taylor adds, his friends feared to suggest any criticisms; not because he resented advice but because he suffered so much from blame. another peculiarity was oddly blended with this. among his topics of self-humiliation, sufficiently frequent, one was his excess of 'loquacity.' a very shy man, it is often remarked, may shrink from talking, but when he begins to talk he talks enormously. my father, at any rate, had a natural gift for conversation. he could pour out a stream of talk such as, to the best of my knowledge, i have never heard equalled. the gift was perhaps stimulated by accidents. the weakness of his eyes had forced him to depend very much upon dictation. i remember vividly the sound of his tread as he tramped up and down his room, dictating to my mother or sister, who took down his words in shorthand and found it hard to keep pace with him. even his ordinary conversation might have been put into print with scarcely a correction, and was as polished and grammatically perfect as his finished writing. the flow of talk was no doubt at times excessive. taylor tells of an indignant gentleman who came to his room after attempting to make some communication to the under-secretary. mr. stephen, he said, had at once begun to speak, and after discoursing for half an hour without a moment's pause, courteously bowed the gentleman out, thanking him for the valuable information which still remained unuttered. sir james stephen, said lord monteagle to carlyle, 'shuts his eyes on you and talks as if he were dictating a colonial despatch.'[ ] this refers to a nervous trick of shyness. when talking, his eyelids often had a tremulous motion which concealed the eyes themselves, and gave to at least one stranger the impression that he was being addressed by a blind man. the talk, however, was always pointed and very frequently as brilliant as it was copious. with all the monotony of utterance, says taylor, 'there was such a variety and richness of thought and language, and often so much wit and humour, that one could not help being interested and attentive.' on matters of business, he adds, 'the talk could not be of the same quality and was of the same continuity.' he gives one specimen of the 'richness of conversational diction' which i may quote. my father mentioned to taylor an illness from which the son of lord derby was suffering. he explained his knowledge by saying that lord derby had spoken of the case to him in a tone for which he was unprepared. 'in all the time when i saw him daily i cannot recollect that he ever said one word to me about anything but business; and _when the stupendous glacier, which had towered over my head for so many years, came to dissolve and descend upon me in parental dew, you may imagine, &c., &c._[ ] my brother gives an account to which i can fully subscribe, so far as my knowledge goes. our father's printed books, he says, show his mind 'in full dress, as under restraint and subject to the effect of habitual self-distrust. they give no idea of the vigour and pungency and freedom with which he could speak or let himself loose or think aloud as he did to me. macaulay was infinitely more eloquent, and his memory was a thing by itself. carlyle was striking and picturesque, and, after a fashion, forcible to the last degree. john austin discoursed with the greatest dignity and impressiveness. but my father's richness of mind and union of wisdom, good sense, keenness and ingenuity, put him, in my opinion, quite on the same sort of level as these distinguished men; and gave me a feeling about him which attuned itself with and ran into the conviction that he was also one of the very kindest, most honourable, and best men i ever knew in my whole life.' from my recollection, which is less perfect than was my brother's, i should add that one thing which especially remains with me was the stamp of fine literary quality which marked all my father's conversation. his talk, however copious, was never commonplace; and, boy as i was when i listened, i was constantly impressed by the singular skill with which his clear-cut phrases and lively illustrations put even familiar topics into an apparently new and effective light. the comparison made by my brother between my father's talk and his writings may be just, though i do not altogether agree with it. the 'essays in ecclesiastical biography,' by which he is best known, were written during the official career which i have described. the composition was to him a relaxation, and they were written early in the morning or late at night, or in the intervals of his brief holidays. i will not express any critical judgment of their qualities; but this i will say: putting aside macaulay's 'essays,' which possess merits of an entirely different order, i do not think that any of the collected essays republished from the 'edinburgh review' indicate a natural gift for style equal to my father's. judging from these, which are merely the overflowing of a mind employed upon other most absorbing duties, i think that my father, had he devoted his talents to literature, would have gained a far higher place than has been reached by any of his family.[ ] my father gave in his essays a sufficient indication of his religious creed. that creed, while it corresponded to his very deepest emotions, took a peculiar and characteristic form. his essay upon the 'clapham sect'[ ] shows how deeply he had imbibed its teaching, while it yet shows a noticeable divergence. all his youthful sympathies and aims had identified him with the early evangelicals. as a lad he had known granville sharp, the patriarch of the anti-slavery movement; and till middle life he was as intimate as the difference of ages permitted with wilberforce and with thomas gisborne, the most refined if not most effective preacher of the party. he revered many of the party from the bottom of his heart. his loving remembrance of his intercourse with them is shown in every line of his description, and to the end of his life he retained his loyalty to the men, and, as he at least thought, to their creed. the later generation, which called itself evangelical, repudiated his claim. he was attacked in their chief organ. when some remonstrance was made by his brother-in-law, henry venn, he wrote to the paper (i quote from memory), 'i can only regret that any friend of mine should have stooped to vindicate me from any censure of yours'; and declined further controversy. the occasion of this was an attack which had been made upon him at cambridge, where certain learned dons discovered on his appointment to the professorship of history that he was a 'cerinthian.' i do not pretend to guess at their meaning. anyhow he had avowed, in an 'epilogue' to his essays, certain doubts as to the meaning of eternal damnation--a doctrine which at that time enjoyed considerable popularity. the explanation was in part simple. 'it is laid to my charge,' he said, 'that i am a latitudinarian. i have never met with a single man who, like myself, had passed a long series of years in a free intercourse with every class of society who was not more or less what is called a latitudinarian.' in fact, he had discovered that clapham was not the world, and that the conditions of salvation could hardly include residence on the sacred common. this conviction, however, took a peculiar form in his mind. his essays show how widely he had sympathised with many forms of the religious sentiment. he wrote with enthusiasm of the great leaders of the roman catholic church; of hildebrand and st. francis, and even of ignatius loyola; and yet his enthusiasm does not blind him to the merits of martin luther, or baxter, or wesley, or wilberforce. there were only two exceptions to his otherwise universal sympathy. he always speaks of the rationalists in the ordinary tone of dislike; and he looks coldly upon one school of orthodoxy. 'sir james stephen,' as was said by someone, 'is tolerant towards every church except the church of england.' this epigram indicated a fact. although he himself strenuously repudiated any charge of disloyalty to the church whose ordinances he scrupulously observed, he was entirely out of sympathy with the specially anglican movement of later years. this was no doubt due in great part to the intensely strong sympathies of his youth. when the oxford movement began he was already in middle life and thoroughly steeped in the doctrines which they attacked. he resembled them, indeed, in his warm appreciation of the great men of catholicism. but the old churchmen appealed both to his instincts as a statesman and to his strong love of the romantic. the church of the middle ages had wielded a vast power; men like loyola and xavier had been great spiritual heroes. but what was to be said for the church of england since the reformation? henry martyn, he says, in the 'clapham sect,' is 'the one heroic name which adorns her annals since the days of elizabeth. her apostolic men either quitted or were cast out of her communion. her _acta sanctorum_ may be read from end to end with a dry eye and an unquickened pulse.' he had perhaps heard too many sermons. 'dear mother church,' he says after one such experience, 'thy spokesmen are not selected so as to create any danger that we should be dazzled by human eloquence or entangled by human wisdom.' the church of england, as he says elsewhere ('baxter'), afforded a refuge for three centuries to the great, the learned, and the worldly wise, but was long before it took to the nobler end of raising the poor, and then, as he would have added, under the influence of the clapham sect. the church presented itself to him mainly as the religious department of the state, in which more care was taken to suppress eccentricity than to arouse enthusiasm; it was eminently respectable, but at the very antipodes of the heroic. could he then lean to rome? he could not do so without damning the men he most loved, even could his keen and in some ways sceptical intellect have consented to commit suicide. or to the romanising party in the church? the movement sprang from the cloister, and he had breathed the bracing air of secular life. he was far too clear-headed not to see whither they were tending. to him they appeared to be simply feeble imitations of the real thing, dabbling with dangerous arguments, and trying to revive beliefs long sentenced to extinction. and yet, with his strong religious beliefs, he could not turn towards the freethinkers. he perceived indeed with perfect clearness that the christian belief was being tried by new tests severer than the old, and that schools of thought were arising with which the orthodox would have to reckon. occasional intimations to this effect dropped from him in his conversations with my brother and others. but, on the whole, the simple fact was that he never ventured to go deeply into the fundamental questions. his official duties left him little time for abstract thought; and his surpassingly ingenious and versatile mind employed itself rather in framing excuses for not answering than in finding thorough answers to possible doubts. he adopted a version of the doctrine _crede ut intelligas_, and denounced the mere reasoning machines like david hume who appealed unequivocally to reason. but what the faculty was which was to guide or to overrule reason in the search for truth was a question to which i do not think that he could give any distinct answer. he was too much a lover of clearness to be attracted by the mysticism of coleridge, and yet he shrank from the results of seeing too clearly. i have insisted upon this partly because my father's attitude greatly affected my brother, as will be presently seen. my brother was not a man to shrink from any conclusions, and he rather resented the humility which led my father, in the absence of other popes, to attach an excessive importance to the opinions of henry and john venn--men who, as fitzjames observes, were, in matters of speculative inquiry, not worthy to tie his shoes. meanwhile, as his health became weaker in later years, my father seemed to grow more weary of the secular world, and to lean more for consolation under anxiety to his religious beliefs. whatever doubts or tendencies to doubt might affect his intellect, they never weakened his loyalty to his creed. he spoke of christ, when such references were desirable, in a tone of the deepest reverence blended with personal affection, which, as i find, greatly impressed my brother. often, in his letters and his talk, he would dwell upon the charm of a pious life, free from secular care and devoted to the cultivation of religious ideals in ourselves and our neighbours. on very rare occasions he would express his real feelings to companions who had mistaken his habitual reserve for indifference. we had an old ivory carving, left to him in token of gratitude by a gentleman whom he had on some such occasion solemnly reproved for profane language, and who had at the moment felt nothing but irritation. the effect of these tendencies upon our little domestic circle was marked. my father's occupations naturally brought him into contact with many men of official and literary distinction. some of them became his warm friends. besides henry taylor, of whom i have spoken, taylor's intimate friends, james spedding and aubrey de vere, were among the intimates of our household; and they and other men, younger than himself, often joined him in his walks or listened to his overflowing talk at home. a next-door neighbour for many years was nassau senior, the political economist, and one main author of the poor law of . senior, a very shrewd man of the world, was indifferent to my father's religious speculations. yet he and his family were among our closest friends, and in habits of the most familiar intercourse with us. with them was associated john austin, regarded by all the utilitarians as the profoundest of jurists and famous for his conversational powers; and mrs. austin, a literary lady, with her daughter, afterwards lady duff gordon. i think of her (though it makes me feel old when i so think) as lucy austin. she was a brilliant girl, reported to keep a rifle and a skull in her bedroom. she once startled the sense of propriety of her elders by performing in our house a charade, in which she represented a dying woman with a 'realism'--to use the modern phrase--worthy of madame sarah bernhardt. other visitors were occasionally attracted. my father knew john mill, though never, i fancy, at all intimately. he knew politicians such as charles greville, the diarist, who showed his penetration characteristically, as i have been told, by especially admiring my mother as a model of the domestic virtues which he could appreciate from an outside point of view. we looked, however, at the world from a certain distance, and, as it were, through a veil. my father had little taste for general society. it had once been intimated to him, as he told me, that he might find admission to the meetings of holland house, where, as macaulay tells us, you might have the privilege of seeing mackintosh verify a reference to thomas aquinas, and hearing talleyrand describe his ride over the field of austerlitz. my father took a different view. he declined to take advantage of this opening into the upper world, because, as he said, i don't know from what experience, the conversation turned chiefly upon petty personal gossip. the feasts of the great were not to his taste. he was ascetic by temperament. he was, he said, one of the few people to whom it was the same thing to eat a dinner and to perform an act of self-denial. in fact, for many years he never ate a dinner, contenting himself with a biscuit and a glass of sherry as lunch, and an egg at tea, and thereby, as the doctors said, injuring his health. he once smoked a cigar, and found it so delicious that he never smoked again. he indulged in snuff until one day it occurred to him that snuff was superfluous; when the box was solemnly emptied out of the window and never refilled. long sittings after dinner were an abomination to him, and he spoke with horror of his father's belief in the virtues of port wine. his systematic abstemiousness diminished any temptation to social pleasures of the ordinary kind. his real delight was in quieter meetings with his own family--with stephens, and diceys, and garratts, and above all, i think, with henry and john venn. at their houses, or in the country walks where he could unfold his views to young men, whose company he always enjoyed, he could pour out his mind in unceasing discourse, and be sure of a congenial audience. our household must thus be regarded as stamped with the true evangelical characteristics--and yet with a difference. the line between saints and sinners or the church and the world was not so deeply drawn as in some cases. we felt, in a vague way, that we were, somehow, not quite as other people, and yet i do not think that we could be called pharisees. my father felt it a point of honour to adhere to the ways of his youth. like jonadab, the son of rechab, as my brother observes, he would drink no wine for the sake of his father's commandments (which, indeed, is scarcely a felicitous application after what i have just said). he wore the uniform of the old army, though he had ceased to bear unquestioning allegiance. we never went to plays or balls; but neither were we taught to regard such recreations as proofs of the corruption of man. my father most carefully told us that there was nothing intrinsically wrong in such things, though he felt strongly about certain abuses of them. at most, in his favourite phrase, they were 'not convenient.' we no more condemned people who frequented them than we blamed people in hindostan for riding elephants. a theatre was as remote from us as an elephant. and therefore we grew up without acquiring or condemning such tastes. they had neither the charm of early association nor the attraction of forbidden fruit. to outsiders the household must have been pervaded by an air of gravity, if not of austerity. but we did not feel it, for it became the law of our natures, not a law imposed by external sanctions. we certainly had a full allowance of sermons and church services; but we never, i think, felt them to be forced upon us. they were a part, and not an unwelcome part, of the order of nature. in another respect we differed from some families of the same creed. my father's fine taste and his sensitive nature made him tremblingly alive to one risk. he shrank from giving us any inducement to lay bare our own religious emotions. to him and to our mother the needless revelation of the deeper feelings seemed to be a kind of spiritual indelicacy. to encourage children to use the conventional phrases could only stimulate to unreality or actual hypocrisy. he recognised, indeed, the duty of impressing upon us his own convictions, but he spoke only when speaking was a duty. he read prayers daily in his family, and used to expound a few verses of the bible with characteristic unction. in earlier days i find him accusing himself of a tendency to address 'homiletical epistles' to his nearest connections; but he scrupulously kept such addresses for some adequate occasion in his children's lives. we were, indeed, fully aware, from a very early age, of his feelings, and could not but be continuously conscious that we were under the eye of a father governed by the loftiest and purest motives, and devoting himself without stint to what he regarded as his duty. he was a living 'categorical imperative.' 'did you ever know your father do a thing because it was pleasant?' was a question put to my brother, when he was a small boy, by his mother. she has apparently recorded it for the sake of the childish answer: 'yes, once--when he married you.' but we were always conscious of the force of the tacit appeal. i must not give the impression that he showed himself a stern parent. i remember that when his first grandchild was born, i was struck by the fact that he was the most skilful person in the family at playing with the baby. once, when some friends upon whom he was calling happened to be just going out, he said, 'leave me the baby and i shall be quite happy.' several little fragments of letters with doggerel rhymes and anecdotes suited for children recall his playfulness with infants, and as we grew up, although we learnt to regard him with a certain awe, he conversed with us most freely, and discoursed upon politics, history, and literature, and his personal recollections, as if we had been his equals, though, of course, with a width of knowledge altogether beyond our own. the risk of giving pain to a 'skinless' man was all that could cause any reserve between us; but a downright outspoken boy like my brother soon acquired and enjoyed a position on the most affectionate terms of familiarity. we knew that he loved us; that his character was not only pure but chivalrous; and that intellectually he was a most capable guide into the most delightful pastures. i will conclude by a word or two upon his physical characteristics. no tolerable likeness has been preserved. my father was rather above middle height, and became stout in later years. though not handsome, his appearance had a marked dignity. a very lofty brow was surmounted by masses of soft fine hair, reddish in youth, which became almost white before he died. the eyes, often concealed by the nervous trick i have mentioned, were rather deeply set and of the purest blue. they could flash into visibility and sparkle with indignation or softer emotion. the nose was the nose of a scholar, rather massive though well cut, and running to a sharp point. he had the long flexible lips of an orator, while the mouth, compressed as if cut with a knife, indicated a nervous reserve. the skull was very large, and the whole face, as i remember him, was massive, though in youth he must have been comparatively slender. his health was interrupted by some severe illnesses, and he suffered much at times from headache. his power of work, however, shows that he was generally in good health; he never had occasion for a dentist. he was a very early riser, scrupulously neat in dress, and even fanatical in the matter of cleanliness. he had beautiful but curiously incompetent hands. he was awkward even at tying his shoes; and though he liked shaving himself because, he said, that it was the only thing he could do with his hands, and he shaved every vestige of beard, he very often inflicted gashes. his handwriting, however, was of the very best. he occasionally rode and could, i believe, swim and row. but he enjoyed no physical exercise except walking, a love of which was hereditary. i do not suppose that he ever had a gun or a fishing-rod in his hand. and now, having outlined such a portrait as i can of our home, i begin my brother's life.[ ] footnotes: [footnote : i learn by the courtesy of mr. james young stephen that this james stephen was son of a previous james stephen of ardenbraught, whose brother thomas was provost of dundee and died in . james stephen of ardenbraught had a younger son john, who was great-grandfather of the present mr. oscar leslie stephen. mr. o. l. stephen is father of mr. james young stephen, mr. oscar leslie stephen, junior, and sir alexander condie stephen, k.c.m.g.] [footnote : my friend, professor bonney, kindly refers me to conybeare and philips' _outlines of geology of england and wales_, p. , where there is an account of certain beds of lignite, or imperfect coal, in the neighbourhood of poole. they burn with an odour of bitumen, and, no doubt, misled my great-grandfather. geology was not even outlined in those days.] [footnote : 'parleyings with certain people'--_works_ ( ) xvi. - .] [footnote : see _dictionary of national biography_.] [footnote : redgrave's _dictionary of painters_.] [footnote : i have copies of two pamphlets in which these proceedings are described:--one is entitled 'considerations on imprisonment for debt, fully proving that the confining of the bodies of debtors is contrary to common law, magna charta, statute law, justice, humanity, and policy; and that the practice is more cruel and oppressive than is used in the most arbitrary kingdoms in europe, with an account of various applications, &c.; by james stephen, .' the other pamphlet, to which is prefixed a letter by w. jackson, reprints some of stephen's letters from the new jail, wants a title and is imperfect. see also the _annual register_ for (chronicle), november , for (chronicle), january .] [footnote : that mentioned in the previous note. see also the 'chronicle' of the _annual register_ for november , , and january and november , .] [footnote : the children were william and james (already mentioned); sibella, born about , afterwards married to william maxwell morison, editor of _decisions of court of session_ ( - ); hannah, born about , afterwards married to william farish ( - ), jacksonian professor at cambridge; elizabeth, born about , afterwards married to her cousin, william milner, of comberton, near cambridge; and john, born about .] [footnote : the parish register records his burial on september , .] [footnote : see the trial reported by gurney in _state trials_, pp. - . it lasted from a.m. on monday till . a.m. on tuesday morning.] [footnote : see _slavery delineated_ (preface to vol. i.), where other revolting details are given.] [footnote : _slavery delineated_, i. , .] [footnote : sir george stephen's _life of j. stephen_, p. .] [footnote : reprinted in _hansard's debates_, app. xxv.-cxxii.] [footnote : _hansard's debates_, june , ; and _abbot's diary_, ii. .] [footnote : it is now occupied by my friend dr. robert liveing.] [footnote : for the life of my grandfather, i have relied upon his autobiography and upon the following among other works: _life of the late james stephen_ by his son, sir george stephen, victoria, (this little book, written when the author's memory was failing, is full of singular mistakes, a fact which i mention that i may not be supposed to have overlooked the statements in question but which it is needless to prove in detail); _jottings from memory_ (two interesting little pamphlets privately printed by sir alfred stephen in and ); and wilberforce's _life and letters_ (containing letters and incidental references). in colquhoun's _wilberforce, his friends and his times_ ( ), pp. - , is an account of stephen's relations to wilberforce, chiefly founded upon this. see also roberts' _hannah more_ (several letters); brougham's _speeches_ ( ), i. pp. - (an interesting account partly quoted in sir j. stephen's _clapham sect_, in _essays in ecclesiastical biography_); henry adam's _history of the united states_ ( ), iii. pp. - and elsewhere; walpole's _life of perceval_.] [footnote : he served also in upon a commission of inquiry into the forgery of exchequer bills.] [footnote : serjeant stephen's wife and a daughter died before him. he left two surviving children: sarah, a lady of remarkable ability, author of a popular religious story called _anna; or, the daughter at home_, and a chief founder of the 'metropolitan association for befriending young servants,' who died unmarried, aged , on january , ; and james, who edited some of his father's books, was judge of the county court at lincoln, and died in november . a short notice of the serjeant is in the _law times_ of december , .] [footnote : _life of james stephen_, p. .] [footnote : by his wife, a miss ravenscroft, he had seven children, who all emigrated with him. the eldest, james wilberforce stephen, was fourth wrangler in and fellow of st. john's college, and afterwards a judge in the colony of victoria.] [footnote : his _constitution of a christian church_ ( ) was republished, in , as _churches the many and the one_, with additional notes by his son, the rev. samuel garratt, now rector of st. margaret's, ipswich, and canon of norwich.] [footnote : _lectures_, vol. i. preface.] [footnote : preface to _slavery delineated_, i. pp. lix.-lxx. my grandfather takes some trouble to show--and, as i think, shows conclusively--that the appointment mentioned in the text was not a job, and that it involved a considerable saving of public money. but this matter will interest no one at present.] [footnote : i have to thank mr. bryce, now president of the board of trade, for kindly procuring me the dates of my father's official appointments.] [footnote : communicated by my friend mr. j. dykes campbell.] [footnote : my cousin, dr. john venn, informs me that the first traceable venn was a farmer in broad hembury, devonshire, whose son, william venn, was vicar of otterton from to .] [footnote : _henry venn's life_, published by his grandson, henry venn, in , has gone through several editions.] [footnote : a short life of john venn is prefixed to his _sermons_. he married catherine king on october , , and left seven children:-- . catherine eling, born dec. , , died unmarried, april , . . jane catherine, lady stephen, b. may , , d. february , . . emelia, b. april , , d. feb. . . henry, b. february , , d. january , . . caroline, mrs. ellis batten, b. , d. jan. , . . maria, who died in infancy. . john, b. april , , d. may , .] [footnote : _missionary secretariat of henry venn, b.d._, by the rev. william knight, with introductory chapter by his sons the rev. john venn and the rev. henry venn, .] [footnote : sir h. taylor's _autobiography_ ( ), ii. . taylor was b. october , , and d. october , .] [footnote : _autobiography_, i. .] [footnote : p. .] [footnote : autobiographical fragment.] [footnote : _taylor_, ii. .] [footnote : stephen's _history of the criminal law_, iii. . my brother was generally accurate in such statements, though i cannot quite resist the impression that he may at this time have been under some confusion as to the time employed upon this occasion and the time devoted to the bill of to be mentioned directly.] [footnote : _taylor_, i. - . sir henry taylor says that stanley prepared a measure with sir james graham which was introduced into the house of commons and 'forthwith was blown into the air.' i can find no trace of this in hansard or elsewhere, and as stanley only became colonial secretary (march ) six weeks before introducing the measure which passed, and no parliamentary discussion intervened, i fancy that there must be some error. the facts as stated above seem to be at any rate sufficiently proved by taylor's contemporary letter. according to taylor, stanley's great speech (may , ) upon introducing the government measure was founded upon my father's judicious cramming, and the success of the measure was due to stephen's putting his own design into enactments and mr. stanley's into a preamble. taylor at the time thought that my father had been ill treated, but i have not the knowledge necessary to form any opinion. my brother's _life_ is the authority for the circumstances under which the measure was prepared, and rests on sufficient evidence.] [footnote : _taylor_, i. .] [footnote : _ibid._ ii. .] [footnote : i think it right to notice that in the first edition of t. mozley's _reminiscences_ ( ), i. , there appeared an anecdote of my father in his official capacity which was preposterous on the face of it. it was completely demolished in a letter written by my brother which appeared in the _times_ of july , , and withdrawn in a later edition.] [footnote : _reminiscences_, ii. .] [footnote : _taylor_, i. .] [footnote : _taylor_, ii. .] [footnote : _reminiscences_, ii. .] [footnote : _taylor_, ii. .] [footnote : some of my father's letters are given in macvey napier's correspondence. i think that they are the best in a collection which includes letters from many of the most eminent men of the time. a few others are in the collection of sir h. taylor's correspondence, edited by professor dowden in .] [footnote : the title, of course, was given by sydney smith.] [footnote : my father's children were:-- . herbert venn, b. september , , d. october , . . frances wilberforce, b. september , , d. july , . . james fitzjames, b. march , , d. march , . . leslie, born november , . . caroline emelia, born december , .] chapter ii _early life_ i. childhood in the beginning of my father settled in a house at kensington gore--now hyde park gate. there his second son, james fitzjames, was born on march , . james was the name upon which my grandfather insisted because it was his own. my father, because the name was his own, objected as long as he could, but at last compounded, and averted the evil omen, by adding fitzjames. two other children, leslie and caroline emelia, were born in and at the same house. the kensington of those days was still distinctly separate from london. a high wall divided kensington gardens from the hounslow road; there were still deer in the gardens; cavalry barracks close to queen's gate, and a turnpike at the top of the gloucester road. the land upon which south kensington has since arisen was a region of market gardens, where in our childhood we strolled with our nurse along genuine country lanes. it would be in my power, if it were desirable, to give an unusually minute account of my brother's early childhood. my mother kept a diary, and, i believe, never missed a day for over sixty years. she was also in the habit of compiling from this certain family 'annals' in which she inserted everything that struck her as illustrative of the character of her children. about my brother himself began a fragment of autobiography, which he continued at intervals during the next two or three years. for various reasons i cannot transfer it as a whole to these pages, but it supplies me with some very important indications.[ ] a comparison with my mother's contemporary account of the incidents common to both proves my brother's narrative to be remarkably accurate. indeed, though he disclaimed the possession of unusual powers of memory in general, he had a singularly retentive memory for facts and dates, and amused himself occasionally by exercising his faculty. he had, for example, a certain walking-stick upon which he made a notch after a day's march; it served instead of a diary, and years afterwards he would explain what was the particular expedition indicated by any one of the very numerous notches. although i do not wish to record trifles important only in the eyes of a mother, or interesting only from private associations, i will give enough from these sources to illustrate his early development; or rather to show how much of the later man was already to be found in the infant. it requires perhaps some faith in maternal insight to believe that before he was three months old he showed an uncommon power of 'amusing himself with his own thoughts,' and had 'a calm, composed dignity in his countenance which was quite amusing in so young a creature.' it will be more easily believed that he was healthy and strong, and by the age of six months 'most determined to have his own way.' on august , , wilberforce was looking at the baby, when he woke up, burst into a laugh, and exclaimed 'funny!' a declaration which wilberforce no doubt took in good part, though it seems to have been interpreted as a reflection upon the philanthropist's peculiar figure. my brother himself gives a detailed description of his grandfather from an interview which occurred when the old gentleman was seventy-six and the infant very little more than three years old. he remembers even the room and the precise position of the persons present. he remembers too (and his mother's diary confirms the fact) how in the same year he announced that the reform bill had 'passed.' it was 'a very fine thing,' he said, being in fact a bill stuck upon a newsboy's hat, inscribed, as his nurse informed him, with the words 'reform bill.' although his memory implies early powers of observation, he did not show the precocity of many clever children. he was still learning to read about his fifth birthday, and making, as his mother complains, rather slow progress. but if not specially quick at his lessons, he gave very early and, as it seems to me, very noticeable proofs of thoughtfulness and independence of character. he was, as he remained through life, remarkable for that kind of sturdy strength which goes with a certain awkwardness and even sluggishness. to use a modern phrase, he had a great store of 'potential energy,' which was not easily convertible to purposes of immediate application. his mind swarmed with ideas, which would not run spontaneously into the regulation moulds. his mother's influence is perceptible in an early taste for poetry. in his third year he learnt by heart 'sir john moore's burial,' 'nelson and the north,' wordsworth's 'address to the winds,' and lord f. l. gower's translation of schiller ('when jove had encircled this planet with light') from hearing his brother's repetition. he especially delighted in this bit of schiller and in 'chevy chase,' though he resisted watts' hymns. in the next two or three years he learns a good deal of poetry, and on september , , repeats fifty lines of henry the fifth's speech before agincourt without a fault. 'pilgrim's progress' and 'robinson crusoe' are read in due course as his reading improves, and he soon delights in getting into a room by himself and surrounding himself with books. his religious instruction of course began at the earliest possible period, and he soon learnt by heart many simple passages of the bible. he made his first appearance at family prayers in november , when the ceremony struck him as 'funny,' but he soon became interested and was taught to pray for himself. in his elder brother has nicknamed him the 'little preacher,' from his love of virtuous admonitions. in he confides to his mother that he has invented a prayer for himself which is 'not, you know, a childish sort of invention'; and in he explains that he has followed the advice given in a sermon (he very carefully points out that it was only _advice_, not an order) to pray regularly. avowals of this kind, however, have to be elicited from him by delicate maternal questioning. he is markedly averse to any display of feeling. 'you should keep your love locked up as i do' is a characteristic remark at the age of four to his eldest brother. the effect of the religious training is apparently perceptible in a great tendency to self-analysis. his thoughts sometimes turn to other problems;--in october, , for example, he asks the question which has occurred to so many thoughtful children,'how do we know that the world is not a dream?'--but he is chiefly interested in his own motives. he complains in january that he has naughty thoughts. his father tells him to send them away without even thinking about them. he takes the advice, but afterwards explains that he is so proud of sending them away that he 'wants to get them that he may send them away.' he objects to a reward for being good, because it will make him do right from a wrong motive. he shrinks from compliments. in october he leaves a room where some carpenters were at work because they had said something which he was sorry to have heard. they had said, as it appeared upon anxious inquiry, that he would make a good carpenter, and he felt that he was being cajoled. he remarks that even pleasures become painful when they are ordered, and explains why his sixth birthday was disappointing; he had expected too much. his thoughtfulness took shapes which made him at times anything but easy to manage. he could be intensely obstinate. the first conflict with authority took place on june , , when he resolutely declared that he would not say the 'busy bee.' this event became famous in the nursery, for in september he has to express contrition for having in play used the words 'by the busy bee' as an infantile equivalent to an oath. one difficulty was that he declined to repeat what was put into his mouth, or to take first principles in ethics for granted. when his mother reads a text to him (may ), he retorts, 'then i will not be like a little child; i do not want to go to heaven; i would rather stay on earth.' he declines (in ) to join in a hymn which expresses a desire to die and be with god. even good people, he says, may prefer to stay in this world. 'i don't want to be as good and wise as tom macaulay' is a phrase of , showing that even appeals to concrete ideals of the most undeniable excellence fail to overpower him. he gradually developed a theory which became characteristic, and which he obstinately upheld when driven into a logical corner. a stubborn conflict arose in , when his mother was forced to put him in solitary confinement during the family teatime. she overhears a long soliloquy in which he admits his error, contrasts his position with that of the happy who are perhaps even now having toast and sugar, and compares his position to the 'last night of pharaoh.' 'what a barbarian i am to myself!' he exclaims, and resolves that this shall be his last outbreak. on being set at liberty, he says that he was naughty on purpose, and not only submits but requests to be punished. for a short time he applies spontaneously for punishments, though he does not always submit when the request is granted. but this is a concession under difficulties. his general position is that by punishing him his mother only 'procures him to be much more naughty,' and he declines as resolutely as jeremy bentham to admit that naughtiness in itself involves unhappiness, or that the happiness of naughtiness should not be taken into account. he frequently urges that it is pleasanter while it lasts to give way to temper, and that the discomfort only comes afterwards. it follows logically, as he argues in , that if a man could be naughty all his life he would be quite happy. some time later ( ) he is still arguing the point, having now reached the conclusion to which the emperor constantine gave a practical application. the desirable thing would be to be naughty all your life, and to repent just at the end. these declarations are of course only interpolations in the midst of many more edifying though less original remarks. he was exceedingly conscientious, strongly attached to his parents, and very kind to his younger brother and sister. i note that when he was four years old he already thought it, as he did ever afterwards, one of the greatest of treats to have a solitary talk with his father. he was, however, rather unsociable and earned the nickname of 'gruffian' for his occasionally surly manner. this, with a stubborn disposition and occasional fits of the sulks, must have made it difficult to manage a child who persisted in justifying 'naughtiness' upon general principles. he was rather inclined to be indolent, and his mother regrets that he is not so persevering as frederick (gibbs). his great temptation, he says himself, in his childhood was to be 'effeminate and lazy,' and 'to justify these vices by intellectual and religious excuses.' a great deal of this, he adds, has been 'knocked out of him'; he cannot call himself a sluggard or a hypocrite, nor has he acted like a coward. 'indeed,' he says, 'from my very infancy i had an instinctive dislike of the maudlin way of looking at things,' and he remembers how in his fifth year he had declared that guns were not 'dreadful things.' they were good if put to the proper uses. i do not think that there was ever much real 'effeminacy' to be knocked out of him. it is too harsh a word for the slowness with which a massive and not very flexible character rouses itself to action. his health was good, except for a trifling ailment which made him for some time pass for a delicate child. but the delicacy soon passed off and for the next fifty years he enjoyed almost unbroken health. in he explains some bluntness of behaviour by an argument learnt from 'sandford and merton' that politeness is objectionable. in august occurs a fit of obstinacy. he does not want to be forgiven but to be 'happy and comfortable.' 'i do not feel sorry, for i always make the best of my condition in every possible way, and being sorry would make me uncomfortable. that is not to make the best of my condition.' his mother foresees a contest and remarks 'a daring and hardened spirit which is not natural to him.' soon after, i should perhaps say in consequence of, these outbreaks he was sent to school. my mother's first cousin, henry venn elliott, was incumbent of st. mary's chapel at brighton and a leading evangelical preacher. at brighton, too, lived his sister, miss charlotte elliott, author of some very popular hymns and of some lively verses of a secular kind. fitzjames would be under their wing at brighton, where elliott recommended a school kept by the rev. b. guest, at sussex square. my mother took him down by the brighton coach, and he entered the school on november , .[ ] the school, says fitzjames, was in many ways very good; the boys were well taught and well fed. but it was too decorous; there was no fighting and no bullying and rather an excess of evangelical theology. the boys used to be questioned at prayers. 'gurney, what's the difference between justification and sanctification?' 'stephen, prove the omnipotence of god.' many of the hymns sung by the boys remained permanently in my brother's memory, and he says that he could give the names of all the masters and most of the boys and a history of all incidents in chronological order. guest's eloquence about justification by faith seems to have stimulated his pupil's childish speculations. he read a tract in which four young men discuss the means of attaining holiness. one says, 'meditate on the goodness of god'; a second, 'on the happiness of heaven'; a third, 'on the tortures of hell'; and a fourth, 'on the love of christ.' the last plan was approved in the tract; but fitzjames thought meditation on hell more to the purpose, and set about it deliberately. he imagined the world transformed into a globe of iron, white hot, with a place in the middle made to fit him so closely that he could not even wink. the globe was split like an orange; he was thrust by an angel into his place, immortal, unconsumable, and capable of infinite suffering; and then the two halves were closed, and he left in hideous isolation to suffer eternal torments. i guess from my own experience that other children have had similar fancies. he adds, however, a characteristic remark. 'it seemed to me then, as it seems now, that no stronger motive, no motive anything like so strong, can be applied to actuate any human creature toward any line of conduct. to compare the love of god or anything else is to my mind simply childish.' he refers to mill's famous passage about going to hell rather than worship a bad god, and asks what mill would say after an experience of a quarter of an hour. fitzjames, however, did not dwell upon such fancies. they were merely the childish mode of speculation by concrete imagery. he became more sociable, played cricket, improved in health, and came home with the highest of characters as being the best and most promising boy in the school. he rose steadily, and seems to have been thoroughly happy for the next five years and a half. in my mother observed certain peculiarities in me which she took at first to be indications of precocious genius. after a time, however, she consulted an eminent physician, who informed her that they were really symptoms of a disordered circulation. he added that i was in a fair way to become feeble in mind and deformed in body, and strongly advised that i should be sent to school, where my brain would be in less danger of injudicious stimulation. he declared that even my life was at stake. my father, much alarmed, took one of his prompt decisions. he feared to trust so delicate a child away from home, and therefore resolved to take a house in brighton for a year or two, from which i might attend my brother's school. the kensington house was let, and my mother and sister settled in sussex square, a few doors from mr. guest. my father, unable to leave his work, took a lodging in town and came to brighton for sundays, or occasionally twice a week. in those days the journey was still by coach. when the railway began running in the course of , i find my father complaining that it could not be trusted, and had yet made all other modes of travelling impossible. 'how many men turned of fifty,' asks my brother, 'would have put themselves to such inconvenience, discomfort, and separation from their wives for the sake of screening a delicate lad from some of the troubles of a carefully managed boarding school?' my brother was not aware of the apparent gravity of the case when he wrote this. such a measure would have pushed parental tenderness to weakness had there been only a question of comfort; but my father was seriously alarmed, and i can only think of his conduct with the deepest gratitude. to fitzjames the plan brought the advantage that he became his father's companion in sunday strolls over the downs. his father now found, as my mother's diary remarks, that he could already talk to him as to a man, and fitzjames became dimly aware that there were difficulties about mr. guest's theology. he went with my father, too, to hear mr. sortaine, a popular preacher whose favourite topic was the denunciation of popery. my father explained to the boy that some able men really defended the doctrine of transubstantiation, and my brother, as he remarks, could not then suspect that under certain conditions very able men like nonsense, and are even not averse to 'impudent lying,' in defence of their own authority. incidentally, too, my father said that there were such people as atheists, but that such views should be treated as we should treat one who insulted the character of our dearest friend. this remark, attributed to a man who was incapable of insulting anyone, and was a friend of such freethinkers as austin and j. s. mill, must be regarded as representing the impression made upon an inquisitive child by an answer adapted to his capacity. the impression was, however, very strong, and my brother notes that he heard it on a wettish evening on the cliff near the south end of the old steine. fitzjames had discussed the merits of mr. guest's school with great intelligence and had expressed a wish to be sent to rugby. he had heard bad accounts of the state of eton, and some rumours of arnold's influence had reached him. arnold, someone had told him, could read a boy's character at a glance. at easter , my father visited the diceys at claybrook, and thence took his boy to see the great schoolmaster at rugby. fitzjames draws a little diagram to show how distinctly he remembers the scene. he looked at the dark, grave man and wondered, 'is he now reading my character at a glance?' it does not appear that he was actually entered at rugby, however, and my father had presently devised another scheme. the inconveniences of the brighton plan had made themselves felt, and it now occurred to my father that he might take a house in windsor and send both fitzjames and me to eton. we should thus, he hoped, get the advantages of a public school without being exposed to some of its hardships and temptations. he would himself be able to live with his family, although, as things then were, he had to drive daily to and from the slough station, besides having the double journey from paddington to downing street. we accordingly moved to windsor in easter . fitzjames's last months at school had not been quite so triumphant as the first, partly, it seems, from a slight illness, and chiefly for the characteristic reason, according to his master, that he would occupy himself with 'things too high for him.' he read solid works (i find mention of carlyle's 'french revolution') out of school hours and walked with an usher to whom he took a fancy, discoursing upon absorbing topics when he should have been playing cricket. fitzjames left brighton on the day, as he notes, upon which one mister was hanged for attempting murder--being almost the last man in england hanged for anything short of actual murder. he entered eton on april , , and was placed in the 'remove,' the highest class attainable at his age. ii. eton the eton period[ ] had marked effects. fitzjames owed, as he said, a debt of gratitude to the school, but it was for favours which would have won gratitude from few recipients. the boys at a public school form, i fancy, the most rigidly conservative body in existence. they hate every deviation from the accepted type with the hatred of an ancient orthodox divine for a heretic. the eton boys of that day regarded an 'up-town boy' with settled contempt. his motives or the motives of his parents for adopting so abnormal a scheme were suspect. he might be the son of a royal footman or a prosperous tradesman in windsor, audaciously aspiring to join the ranks of his superiors, and if so, clearly should be made to know his place. in any case he was exceptional, and therefore a pariah, to associate with whom might be dangerous to one's caste. mr. coleridge tells me that even the school authorities were not free from certain suspicions. they wisely imagined, it appears, that my father had come among them as a spy, instigated, no doubt, by some diabolical design of 'reforming' the school and desecrating the shrine of henry's holy shade. the poor man, already overpowered by struggling with refractory colonists from heligoland to new zealand, was of malice prepense stirring up this additional swarm of hornets. i can hardly suppose, however, that this ingenious theory had much influence. mr. coleridge also says that the masters connived at the systematic bullying of the town boys. i can believe that they did not systematically repress it. i must add, however, in justice to my school-fellows, that my personal recollections do not reveal any particular tyranny. such bullying as i had to endure was very occasional, and has left no impression on my memory. yet i was far less capable than fitzjames of defending myself, and can hardly have forgotten any serious tormenting. the truth is that the difference between me and my brother was the difference between the willow and the oak, and that i evaded such assaults as he met with open defiance. my brother, as has been indicated, was far more developed in character, if not in scholarship, than is at all common at his age. his talks with my father and his own reading had familiarised him with thoughts lying altogether beyond the horizon of the average boyish mind. he was thoughtful beyond his years, although not conspicuously forward in the school studies. he was already inclined to consider games as childish. he looked down upon his companions and the school life generally as silly and frivolous. the boys resented his contempt of their ways; and his want of sociability and rather heavy exterior at the time made him a natural butt for schoolboy wit. he was, he says, bullied and tormented till, towards the end of his time, he plucked up spirit to resist. of the bullying there can be no doubt; nor (sooner or later) of the resistance. mr. coleridge observes that he was anything but a passive victim, and turned fiercely upon the ringleaders of his enemies. 'often,' he adds, 'have i applauded his backhanders as the foremost in the fray. he was only vanquished by numbers. his bill for hats at sanders' must have amounted to a stiff figure, for my visions of fitzjames are of a discrowned warrior, returning to windsor bareheaded, his hair moist with the steam of recent conflict.' my own childish recollections of his school life refer mainly to pugilism. in october , as i learn from my mother's diary, he found a big boy bullying me, and gave the boy such a thrashing as was certain to prevent a repetition of the crime. i more vividly recollect another occasion, when a strong lad was approaching me with hostile intent. i can still perceive my brother in the background; when an application of the toe of his boot between the tails of my tyrant's coat disperses him instantaneously into total oblivion. other scenes dimly rise up, as of a tumult in the school-yard, where fitzjames was encountering one of the strongest boys in the school amidst a delighted crowd, when the appearance of the masters stopped the proceedings. fitzjames says that in his sixteenth year (i.e. - ) he grew nearly five inches, and instead of outgrowing his strength became a 'big, powerful young man, six feet high,'--and certainly a very formidable opponent. other boys have had similar experiences without receiving the same impression. 'i was on the whole,' he says, 'very unhappy at eton, and i deserved it; for i was shy, timid, and i must own cowardly. i was like a sensible grown-up woman among a crowd of rough boys.' after speaking of his early submission to tyranny, he adds: 'i still think with shame and self-contempt of my boyish weakness, which, however, did not continue in later years. the process taught me for life the lesson that to be weak is to be wretched, that the state of nature is a state of war, and _væ victis_ the great law of nature. many years afterwards i met r. lowe (lord sherbrooke) at dinner. he was speaking of winchester, and said with much animation that he had learnt one great lesson there, namely, that a man can count on nothing in this world except what lies between his hat and his boots. i learnt the same lesson at eton, but alas! by conjugating not _pulso_ but _vapulo_.' as i have intimated, i think that his conscience must have rather exaggerated his sins of submission; though i also cannot doubt that there was some ground for his self-humiliation. in any case, he atoned for it fully. i must add that he learnt another lesson, which, after his fashion, he refrains from avowing. the 'kicks, cuffs, and hat smashing had no other result,' says mr. coleridge, 'than to steel his mind for ever against oppression, tyranny, and unfairness of every kind.' how often that lesson is effectually taught by simple bullying i will not inquire. undoubtedly fitzjames learnt it, though he expressed himself more frequently in terms of indignation against the oppressor than of sympathy for the oppressed; but the sentiment was equally strong, and i have no doubt that it was stimulated by these acts of tyranny. the teaching at eton was 'wretched'; the hours irregular and very unpunctual; the classes were excessively large, and the tutorial instruction supposed to be given out of school frequently neglected. 'i do not believe,' says my brother, 'that i was ever once called upon to construe at my tutor's after i got into the fifth form.' an absurd importance, too, was already attached to the athletic amusements. balston, our tutor, was a good scholar after the fashion of the day and famous for latin verse; but he was essentially a commonplace don. 'stephen major,' he once said to my brother, 'if you do not take more pains, how can you ever expect to write good longs and shorts? if you do not write good longs and shorts, how can you ever be a man of taste? if you are not a man of taste, how can you ever hope to be of use in the world?'--a _sorites_, says my brother, which must, he thinks, be somewhere defective. the school, however, says fitzjames, had two good points. the boys, in the first place, were gentlemen by birth and breeding, and did not forget their home training. the simple explanation of the defects of the school was, as he remarks, that parents in this class did not care about learning; they wished their children to be gentlemen, and to be 'bold and active, and to make friends and to enjoy themselves, and most of them had their wish.' the second good point in the school is more remarkable. 'there was,' says fitzjames, 'a complete absence of moral and religious enthusiasm. the tone of rugby was absolutely absent.' chapel was simply a kind of drill. he vividly remembers a sermon delivered by one of the fellows, a pompous old gentleman, who solemnly gave out the bidding prayer, and then began in these words, 'which ring in my ears after the lapse of more than forty years.' 'the subject of my discourse this morning, my brethren, will be the duties of the married state.' when balston was examined before a public schools commission, he gave what fitzjames considers 'a perfectly admirable answer to one question.' he had said that the provost and fellows did all the preaching, and was asked whether he did not regret that he could not, as headmaster, use this powerful mode of influencing the boys? 'no,' he said; 'i was always of opinion that nothing was so important for boys as the preservation of christian simplicity.' 'this put into beautiful language,' says my brother, 'the truth that at eton there was absolutely no nonsense.' the masters knew that they had 'nothing particular to teach in the way of morals or religion, and they did not try to do so.' the merits thus ascribed to eton were chiefly due, it seems, to the neglect of discipline and of teaching. my brother infers that good teaching at school is of less importance than is generally supposed. i shall not enter upon that question; but it is necessary to point out that whatever the merits of an entire absence of moral and religious instruction, my brother can hardly be taken as an instance. at this time the intimacy with his father, already close, was rapidly developing. on sunday afternoons, in particular, my father used to walk to the little chapel near cumberland lodge, in windsor park, and on the way would delight in the conversations which so profoundly interested his son. the boy's mind was ripening, and he was beginning to take an interest in some of the questions of the day. it was the time of the oxford movement, and discussions upon that topic were frequent at home. frederick gibbs held for a time a private tutorship at eton while reading for a fellowship at trinity, and brought news of what was exciting young men at the universities. a quaint discussion recalled by my brother indicates one topic which even reached the schoolboy mind. he was arguing as to confirmation with herbert coleridge ( - ) whose promising career as a philologist was cut short by an early death. 'if you are right,' said fitzjames, 'a bishop could not confirm with his gloves on.' 'no more he could,' retorted coleridge, boldly accepting the position. political questions turned up occasionally. o'connell was being denounced as 'the most impudent of created liars,' and a belief in free trade was the mark of a dangerous radical. to the eton time my brother also refers a passionate contempt for the 'sentimental and comic' writers then popular. he was disgusted not only by their sentimentalism but by their vulgarity and their ridicule of all that he respected. one influence, at this time, mixed oddly with that exerted by my father. my eldest brother, herbert, had suffered from ill health, due, i believe, to a severe illness in his infancy, which had made it impossible to give him a regular education. he had grown up to be a tall, large-limbed man, six feet two-and-a-half inches in height, but loosely built, and with a deformity of one foot which made him rather awkward. the delicacy of his constitution had caused much anxiety and trouble, and he diverged from our family traditions by insisting upon entering the army. there, as i divine, he was the object of a good deal of practical joking, and found himself rather out of his element. he used to tell a story which may have received a little embroidery in tradition. he was at a ball at gibraltar, which was attended by a naval officer. when the ladies had retired this gentleman proposed pistol shooting. after a candelabrum had been smashed, the sailor insisted upon taking a shot at a man who was lying on a sofa, and lodged a bullet in the wall just above his head. herbert left the army about and entered at gray's inn. he would probably have taken to literature, and he wrote a few articles not without promise, but his life was a short one. he was much at windsor, and the anxiety which he had caused, as well as a great sweetness and openness of temper, made him, i guess, the most tenderly loved of his parents' children. he had, however, wandered pretty widely outside the limits of the clapham sect. he became very intimate with fitzjames, and they had long and frank discussions. this daring youth doubted the story of noah's flood, and one phrase which stuck in his brother's mind is significant. 'you,' he said, 'are a good boy, and i suppose you will go to heaven. if you can enjoy yourself there when you think of me and my like grilling in hell fire, upon my soul i don't envy you.' one other little glance from a point of view other than that of clapham impressed the lad. he found among his father's books a copy of 'state trials,' and there read the trial of williams for publishing paine's 'age of reason.' the extracts from paine impressed him; though, for a time, he had an impression from his father that coleridge and other wise men had made a satisfactory apology for the bible; and 'in his inexperience' he thought that paine's coarseness implied a weak case. 'there is a great deal of truth,' he says, 'in a remark made by paine. i have gone through the bible as a man might go through a wood, cutting down the trees. the priests can stick them in again, but they will not make them grow.' for the present such thoughts remained without result. fitzjames was affected, he says, by the combined influence of his father and brother. he thought that something was to be said on both sides of the argument. meanwhile the anxiety caused to his father by herbert's unfortunately broken, though in no sense discreditable, career impressed him with a strong sense of the evils of all irregularities of conduct. he often remembered herbert in connection with one of his odd anniversaries. 'this day eighteen years ago,' he says (september , ), 'my brother herbert and i killed a snake in windsor forest. poor dear fellow! we should have been great friends, and please god! we shall be yet.' meanwhile fitzjames had done well, though not brilliantly, at school. he was eighth in his division, of which he gives the first twelve names from memory. the first boy was chenery, afterwards editor of the 'times,' and the twelfth was herbert coleridge. with the exception of coleridge, his cousin arthur, and w. j. beamont ( - ), who at his death was a fellow at trinity college, cambridge, he had hardly any intimates. chitty, afterwards his colleague on the bench, was then famous as an athlete; but with athletics my brother had nothing to do. his only amusement of that kind was the solitary sport of fishing. he caught a few roach and dace, and vainly endeavoured to inveigle pike. his failure was caused, perhaps, by scruples as to the use of live bait, which led him to look up some elaborate recipes in walton's 'compleat angler.' pike, though not very intelligent, have long seen through those ancient secrets. one of these friendships led to a characteristic little incident. in the christmas holidays of fitzjames was invited to stay with the father of his friend beamont, who was a solicitor at warrington. there could not, as i had afterwards reason to know, have been a quieter or simpler household. but they had certain gaieties. indeed, if my memory does not deceive me, fitzjames there made his first and only appearance upon the stage in the character of tony lumpkin. my father was alarmed by the reports of these excesses, and, as he was going to the diceys, at claybrook, wrote to my brother of his intentions. he hinted that fitzjames, if he were at liberty, might like a visit to his cousins. upon arriving at rugby station he found fitzjames upon the platform. the lad had at once left warrington, though a party had been specially invited for his benefit, having interpreted the paternal hint in the most decisive sense. my father, i must add, was shocked by the results of his letter, and was not happy till he had put himself right with the innocent beamonts. under balston's advice fitzjames was beginning to read for the newcastle. before much progress had been made in this, however, my father discovered his son's unhappiness at school. although the deep designs of reform with which the masters seem to have credited him were purely imaginary, my father had no high opinion of eton, and devised another scheme. fitzjames went to the school for the last time about september , , and then tore off his white necktie and stamped upon it. he went into the ante-chapel and scowled, he says, at the boys inside, not with a benediction. it was the close of three years to which he occasionally refers in his letters, and always much in the same terms. they were, in the main, unhappy, and, as he emphatically declared, the only unhappy years of his life, but they had taught him a lesson. iii. king's college on october , , he entered king's college, london. lodgings were taken for him at highgate hill, within a few doors of his uncle, henry venn. he walked the four miles to the college, dined at the colonial office at two, and returned by the omnibus. he was now his own master, the only restriction imposed upon him being that he should every evening attend family prayers at his uncle's house. the two years he spent at king's college were, he says, 'most happy.' he felt himself changed from a boy to a man. the king's college lads, who, indeed called themselves 'men,' were of a lower social rank than the etonians, and, as fitzjames adds, unmistakably inferior in physique. boys who had the strand as the only substitute for the playing-fields were hardly likely to show much physical prowess. but they had qualities more important to him. they were industrious, as became the sons of professional and business men. their moral tone was remarkably good; he never knew, he says, a more thoroughly well-behaved set of lads, although he is careful to add that he does not think that in this respect eton was bad. his whole education had been among youths 'singularly little disposed to vice or a riot in any form.' but the great change for him was that he could now find intellectual comradeship. there was a debating society, in which he first learnt to hear his own voice, and indeed became a prominent orator. he is reported to have won the surname 'giant grim.' his most intimate friend was the present dr. kitchin, dean of durham. the lads discussed politics and theology and literature, instead of putting down to affectation any interest outside of the river and the playing-fields. fitzjames not only found himself in a more congenial atmosphere, but could hold his own better among youths whose standard of scholarship was less exalted than that of the crack latin versemakers at eton, although the average level was perhaps higher. in he won a scholarship, and at the summer examination was second in classics. in he was only just defeated for a scholarship by an elder boy, and was first, both in classics and english literature, in the examinations, besides winning a prize essay. here, as elsewhere, he was much interested by the theological tone of his little circle, which was oddly heterogeneous. there was, in the first place, his uncle, henry venn, to whom he naturally looked up as the exponent of the family orthodoxy. long afterwards, upon venn's death, he wrote, 'henry venn was the most triumphant man i ever knew.' 'i never,' he adds, 'knew a sturdier man.' such qualities naturally commanded his respect, though he probably was not an unhesitating disciple. at king's college, meanwhile, which prided itself upon its anglicanism, he came under a very different set of teachers. the principal, dr. jelf, represented the high and dry variety of anglicanism. i can remember how, a little later, i used to listen with wonder to his expositions of the thirty-nine articles. what a marvellous piece of good fortune it was, i used dimly to consider, that the church of england had always hit off precisely the right solution in so many and such tangled controversies! but king's college had a professor of a very different order in f. d. maurice. his personal charm was remarkable, and if fitzjames did not become exactly a disciple he was fully sensible of maurice's kindness of nature and loftiness of purpose. he held, i imagine, in a vague kind of way, that here might perhaps be the prophet who was to guide him across the deserts of infidelity into the promised land where philosophy and religion will be finally reconciled. of this, however, i shall have more to say hereafter. i must now briefly mention the changes which took place at this time in our family. in my brother herbert made a tour to constantinople, and on his return home was seized by a fever and died at dresden on october . my father and mother had started upon the first news of the illness, but arrived too late to see their son alive. fitzjames in the interval came to windsor, and, as my mother records, was like a father to the younger children. the journey to dresden, with its terrible suspense and melancholy end, was a severe blow to my father. from that time, as it seems to me, he was a changed man. he had already begun to think of retiring from his post, and given notice that he must be considered as only holding it during the convenience of his superiors.[ ] he gave up the house at windsor, having, indeed, kept it on chiefly because herbert was fond of the place. we settled for a time at wimbledon. there my brother joined us in the early part of . a very severe illness in the autumn of finally induced my father to resign his post. in recognition of his services he was made a privy councillor and k.c.b. his retirement was at first provisional, and, on recovering, he was anxious to be still employed in some capacity. the government of the day considered the pension to which he was entitled an inadequate reward for his services. there was some talk of creating the new office of assessor to the judicial committee of the privy council, to which he was to be appointed. this proved to be impracticable, but his claim was partly recognised in his appointment to succeed william smyth (died june , ) as regius professor of modern history at cambridge.[ ] i may as well mention here the later events of his life, as they will not come into any precise connection with my brother's history. the intimacy between the two strengthened as my brother developed into manhood, and they were, as will be seen, in continual intercourse. but after leaving king's college my brother followed his own lines, though for a time an inmate of our household. the kensington house having been let, we lived in various suburban places, and, for a time, at cambridge. my father's professorship occupied most of his energies in later years. he delivered his first course in the may term of . another very serious illness, threatening brain fever, interrupted him for a time, and he went abroad in the autumn of . he recovered, however, beyond expectation, and was able to complete his lectures in the winter, and deliver a second course in the summer of . these lectures were published in as 'lectures on the history of france.' they show, i think, the old ability, but show also some failure of the old vivacity. my father did not possess the profound antiquarian knowledge which is rightly demanded in a professor of the present day; and, indeed, i think it is not a little remarkable that, in the midst of his absorbing work, he had acquired so much historical reading as they display. but, if i am not mistaken, the lectures have this peculiar merit--that they are obviously written by a man who had had vast practical experience of actual administrative work. they show, therefore, an unusual appreciation of the constitutional side of french history; and he anticipated some of the results set forth with, of course, far greater knowledge of the subject, in tocqueville's 'ancien régime.' tocqueville himself wrote very cordially to my father upon the subject; and the lectures have been valued by very good judges. nothing, however, could be more depressing than the position of a professor at cambridge at that time. the first courses delivered by my father were attended by a considerable number of persons capable of feeling literary curiosity--a class which was then less abundant than it would now be at cambridge. but he very soon found that his real duty was to speak to young gentlemen who had been driven into his lecture-room by well-meant regulations; who were only anxious to secure certificates for the 'poll' degree, and whose one aim was to secure them on the cheapest possible terms. to candidates for honours, the history school was at best a luxury for which they could rarely spare time, and my father had to choose between speaking over the heads of his audience and giving milk and water to babes. the society of the cambridge dons in those days was not much to his taste, and he soon gave up residence there. about the beginning of he took a house in westbourne terrace, which became his headquarters. in he accepted a professorship at haileybury, which was then doomed to extinction, only to hold it during the last three years of the existence of the college. these lectures sufficiently occupied his strength, and he performed them to the best of his ability. the lectures upon french history were, however, the last performance which represented anything like his full powers. iv. cambridge in october my brother went into residence at trinity college, cambridge. 'my cambridge career,' he says, 'was not to me so memorable or important a period of life as it appears to some people.' he seems to have extended the qualification to all his early years. 'few men,' he says, 'have worked harder than i have for the last thirty-five years, but i was a very lazy, unsystematic lad up to the age of twenty-two.' he would sometimes speak of himself as 'one of a slowly ripening race,' and set little value upon the intellectual acquirements attained during the immature period. yet i have sufficiently shown that in some respects he was even exceptionally developed. from his childhood he had shared the thoughts of his elders; he had ceased to be a boy when he had left eton at sixteen; and he came up to cambridge far more of a grown man than nine in ten of his contemporaries. so far, indeed, as his character was concerned, he had scarcely ever been a child: at cambridge, as at eton, he regarded many of the ambitions of his contemporaries as puerile. even the most brilliant undergraduates are sometimes tempted to set an excessive value upon academical distinction. a senior wranglership appears to them to be the culminating point of human glory, instead of the first term in the real battle of life. fitzjames, far from sharing this delusion, regarded it, perhaps, with rather too much contempt. his thoughts were already upon his future career, and he cared for university distinctions only as they might provide him with a good start in the subsequent competition. but this marked maturity of character did not imply the possession of corresponding intellectual gifts, or, as i should rather say, of such gifts as led to success in the senate house. fitzjames had done respectably at eton, and had been among the first lads at king's college. he probably came up to cambridge with confidence that he would make a mark in examinations. but his mind, however powerful, was far from flexible. he had not the intellectual docility which often enables a clever youth to surpass rivals of much greater originality--as originality not unfrequently tempts a man outside the strait and narrow path which leads to the maximum of marks. 'i have always found myself,' says fitzjames, in reference to his academical career, 'one of the most unteachable of human beings. i cannot, to this day, take in anything at second hand. i have in all cases to learn whatever i want to learn in a way of my own. it has been so with law, with languages, with indian administration, with the machinery i have had to study in patent cases, with english composition--in a word, with everything whatever.' for other reasons, however, he was at a disadvantage. he not only had not yet developed, but he never at any time possessed, the intellectual qualities most valued at cambridge. the cambridge of those days had merits, now more likely to be overlooked than overvalued. the course was fitted to encourage strenuous masculine industry, love of fair play, and contempt for mere showy displays of cleverness. but it must be granted that it was strangely narrow. the university was not to be despised which could turn out for successive senior wranglers from to such men as leslie ellis, sir george stokes, professor cayley, and adams, the discoverer of neptune, while the present lord kelvin was second wrangler and first smith's prizeman in . during the same period the great latin scholar, munro ( ), and h. s. maine ( ), were among the lights of the classical tripos. but, outside of the two triposes, there was no career for a man of any ability. to parody a famous phrase of hume's, cambridge virtually said to its pupils, 'is this a treatise upon geometry or algebra? no. is it, then, a treatise upon greek or latin grammar, or on the grammatical construction of classical authors? no. then commit it to the flames, for it contains nothing worth your study.' now, in both these arenas fitzjames was comparatively feeble. he read classical books, not only at cambridge but in later life, when he was pleased to find his scholarship equal to the task of translating. but he read them for their contents, not from any interest in the forms of language. he was without that subtlety and accuracy of mind which makes the born scholar. he was capable of blunders surprising in a man of his general ability; and every blunder takes away marks. he was still less of a mathematician. 'i disliked,' as he says himself, 'and foolishly despised the studies of the place, and did not care about accurate classical scholarship, in which i was utterly wrong. i was clumsy at calculation, though i think i have, and always have had, a good head for mathematical principles; and i utterly loathed examinations, which seem to me to make learning all but impossible.' a letter from his friend, the rev. h. w. watson, second wrangler in , who was a year his senior, has given me a very interesting account of impressions made at this time. the two had been together at king's college. fitzjames's appearance at trinity was, writes mr. watson, 'an epoch in my college life. a close intimacy sprung up between us, and made residence at cambridge a totally different thing from what it had been in my first year. your brother's wide culture, his singular force of character, his powerful but, at that time, rather unwieldy intellect, his johnsonian brusqueness of speech and manner, mingled with a corresponding johnsonian warmth of sympathy with and loyalty to friends in trouble or anxiety, his sturdiness in the assertion of his opinions, and the maintenance of his principles, disdaining the smallest concession for popularity's sake ... all these traits combined in the formation of an individuality which no one could know intimately and fail to be convinced that only time was wanting for the achievement of no ordinary distinction.' 'yet,' says mr. watson, 'he was distanced by men immeasurably his inferiors.' nor can this, as mr. watson rightly adds, be regarded as a condemnation of the system rather than of my brother. 'i attempted to prepare him in mathematics, and the well-known dr. scott, afterwards headmaster of westminster, was his private tutor in classics; and we agreed in marvelling at and deploring the hopelessness of our tasks. for your brother's mind, acute and able as it was in dealing with matters of concrete human interest, seemed to lose grasp of things viewed purely in the abstract, and positively refused to work upon questions of grammatical rules and algebraical formulæ.' when they were afterwards fellow-students for a short time in law, mr. watson remarked in fitzjames a similar impatience of legal technicalities. he thinks that the less formal system at oxford might have suited my brother better. at that time, however, cambridge was only beginning to stir in its slumbers. the election of the prince consort to the chancellorship in (my brother's first year of residence) had roused certain grumblings as to the probable 'germanising' of our ancient system; and a beginning was made, under whewell's influence, by the institution of the 'moral sciences' and 'natural sciences' triposes in . the theory was, apparently, that, if you ask questions often enough, people will learn in time to answer them. but for the present they were regarded as mere 'fancy' examinations. no rewards were attainable by success; and the ambitious undergraduates kept to the ancient paths. i may as well dispose here of one other topic which seems appropriate to university days. fitzjames cared nothing for the athletic sports which were so effectually popularised soon afterwards in the time of 'tom brown's school days.' athletes, indeed, cast longing eyes at his stalwart figure. one eminent oarsman persuaded my brother to take a seat in a pair-oared boat, and found that he could hardly hold his own against the strength of the neophyte. he tried to entice so promising a recruit by offers of a place in the 'third trinity' crew and ultimate hopes of a 'university blue.' fitzjames scorned the dazzling offer. i remember how ritson, the landlord at wastdale head, who had wrestled with christopher north, lamented in after years that fitzjames had never entered the ring. he spoke in the spirit of the prize-fighter who said to whewell, 'what a man was lost when they made you a parson!' his only taste of the kind was his hereditary love of walking. his mother incidentally observes in january , that he has accomplished a walk of thirty-three miles; and in later days that was a frequent allowance. though not a fast walker, he had immense endurance. he made several alpine tours, and once (in ) he accompanied me in an ascent of the jungfrau with a couple of guides. he was fresh from london; we had passed a night in a comfortless cave; the day was hot, and his weight made a plod through deep snow necessarily fatiguing. we reached the summit with considerable difficulty. on the descent he slipped above a certain famous bergschrund; the fall of so ponderous a body jerked me out of the icy steps, and our combined weight dragged down the guides. happily the bergschrund was choked with snow, and we escaped with an involuntary slide. as we plodded slowly homewards, we expected that his exhaustion would cause a difficulty in reaching the inn. but by the time we got there he was, i believe, the freshest of the party. i remember another characteristic incident of the walk. he began in the most toilsome part of the climb to expound to me a project for an article in the 'saturday review.' i consigned that journal to a fate which i believe it has hitherto escaped. but his walks were always enjoyed as opportunities for reflection. occasionally he took a gun or a rod, and i am told was not a bad shot. he was, however, rather inclined to complain of the appearance of a grouse as interrupting his thoughts. in sport of the gambling variety he never took the slightest interest; and when he became a judge, he shocked a liverpool audience by asking in all simplicity, 'what is the "grand national"?' that, i understand, is like asking a lawyer, what is a _habeas corpus_? he was never seized with the athletic or sporting mania, much as he enjoyed a long pound through pleasant scenery. in this as in some other things he came to think that his early contempt for what appeared to be childish amusements had been pushed rather to excess. i return to cambridge. my brother knew slightly some of the leading men of the place. the omniscient whewell, who concealed a warm heart and genuine magnanimity under rather rough and overbearing manners, had welcomed my father very cordially to cambridge and condescended to be polite to his son. but the gulf which divided him from an undergraduate was too wide to allow the transmission of real personal influence. thompson, whewell's successor in the mastership, was my brother's tutor. he is now chiefly remembered for certain shrewd epigrams; but then enjoyed a great reputation for his lectures upon plato. my brother attended them; but from want of natural platonism or for other reasons failed to profit by them, and thought the study was sheer waste of time. another great cambridge man of those days, the poetical mathematician, leslie ellis, was kind to my brother, who had an introduction to him probably from spedding. ellis was already suffering from the illness which confined him to his room at trumpington, and prevented him from ever giving full proofs of intellectual powers, rated by all who knew him as astonishing. i may quote what fitzjames says of one other contemporary, the senior classic of his own year: 'lightfoot's reputation for accuracy and industry was unrivalled; but it was not generally known what a depth of humour he had or what general force of character.' lightfoot's promotion to the bishopric of durham removed him, as my brother thought, from his proper position as a teacher; and he suffered 'under the general decay of all that belongs to theology.' i do not find, however, that lightfoot had any marked influence upon fitzjames. the best thing that the ablest man learns at college, as somebody has said, is that there are abler men than himself. my brother became intimate with several very able men of his own age, and formed friendships which lasted for life. he met them especially in two societies, which influenced him as they have influenced many men destined to achieve eminence. the first was the 'union.' there his oratory became famous. the 'gruffian' and 'giant grim' was now known as the 'british lion'; and became, says mr. watson, 'a terror to the shallow and wordy, and a merciless exposer of platitudes and shams.' mr. watson describes a famous scene in the october term of which may sufficiently illustrate his position. 'there was at that time at trinity a cleverish, excitable, worthy fellow whose mind was a marvellous mixture of inconsistent opinions which he expounded with a kind of oratory as grotesque as his views.' tradition supplies me with one of his flowers of speech. he alluded to the clergy as 'priests sitting upon their golden middens and crunching the bones of the people.' these oddities gave my brother irresistible opportunities for making fun of his opponent. 'one night his victim's powers of endurance gave way. the scene resembled the celebrated outburst of canning when goaded by the invectives of brougham. the man darted across the room with the obvious intention of making a physical onslaught, and then, under what impulse and with what purpose i do not know, the whole meeting suddenly flashed into a crowd of excited, wrangling boys. they leapt upon the seats, climbed upon the benches, vociferated and gesticulated against each other, heedless of the fines and threats of the bewildered president, and altogether reproduced a scene of the french revolutionary assembly.' mr. llewelyn davies was the unfortunate president on this occasion, and mentions that my brother commemorated the scene in a 'heroic ballad' which has disappeared. from the minutes of the society[ ] 'i learn further details of this historic scene. the debate (november , ) arose upon a motion in favour of cobden. his panegyrist made 'such violent interruptions' that a motion was made for his expulsion, but carried by an insufficient majority. another orator then 'became unruly' and was expelled by a superabundant majority, while the original mover was fined _l._ the motion was then unanimously negatived, 'the opener not being present to reply.' from the records of other debates i learn that fitzjames was in favour of the existing church establishment as against advocates of change, whether high churchmen or liberationists. he also opposed motions for extension of the suffrage, without regard to education or property, moved by sir w. harcourt. he agrees, however, with harcourt in condemning the game laws. his most characteristic utterance was when the admirer of cobden had moved that 'to all human appearance we are warranted in tracing for our own country through the dim perspective of coming time an exalted and glorious destiny.' fitzjames moved as an amendment 'that the house, while it acknowledges the many dangers to which the country is exposed, trusts that through the help of god we may survive them.' this amendment was carried by to . the other society was one which has included a very remarkable number of eminent men. in my undergraduate days we used to speak with bated breath of the 'apostles'--the accepted nickname for what was officially called the cambridge conversazione society. it was founded about , and had included such men as tennyson (who, as my brother reports, had to leave the society because he was too lazy to write an essay), the two younger hallams, maurice, sterling, charles buller, arthur helps, james spedding, monckton milnes, tom taylor, charles merivale, canon blakesley, and others whom i shall have to mention. the existence of a society intended to cultivate the freest discussion of all the great topics excited some suspicion when, about , there was a talk of abolishing tests. it was then warmly defended by thirlwall, the historian, who said that many of its members had become ornaments of the church.[ ] but the very existence of this body was scarcely known to the university at large; and its members held reticence to be a point of honour. you might be aware that your most intimate friend belonged to it: you had dimly inferred the fact from his familiarity with certain celebrities, and from discovering that upon saturday evenings he was always mysteriously engaged. but he never mentioned his dignity; any more than at the same period a warrington would confess that he was a contributor to the leading journals of the day. the members were on the look-out for any indications of intellectual originality, academical or otherwise, and specially contemptuous of humbug, cant, and the qualities of the 'windbag' in general. to be elected, therefore, was virtually to receive a certificate from some of your cleverest contemporaries that they regarded you as likely to be in future an eminent man. the judgment so passed was perhaps as significant as that implied by university honours, and a very large proportion of the apostles have justified the anticipations of their fellows. my brother owed his election at an unusually early period of his career to one of the most important friendships of his life. in the summer vacation of f. w. gibbs was staying at filey, reading for the trinity fellowship, which he obtained in the following october. fitzjames joined him, and there met henry sumner maine, who had recently ( ) taken his degree at cambridge, when he was not only 'senior classic' but a senior classic of exceptional brilliancy. both maine and gibbs were apostles and, of course, friends. my brother's first achievement was to come near blowing out his new friend's brains by the accidental discharge of a gun. maine happily escaped, and must have taken a liking to the lad. in maine was appointed to the regius professorship of civil law in cambridge. the study which he was to teach had fallen into utter decay. maine himself cannot at that time have had any profound knowledge of the civil law--if, indeed, he ever acquired such knowledge. but his genius enabled him to revive the study in england--although no genius could galvanise the corpse of legal studies at the cambridge of those days into activity. maine, as fitzjames says, 'made in the most beautiful manner applications of history and philosophy to roman law, and transfigured one of the driest of subjects into all sorts of beautiful things without knowing or caring much about details.' he was also able to 'sniff at bentham' for his ignorance in this direction. 'i rebelled against maine for many years,' says fitzjames, 'till at last i came to recognise, not only his wonderful gifts, but the fact that at bottom he and i agreed fundamentally, though it cost us both a good deal of trouble to find it out.' i quote this because it bears upon my brother's later development of opinion. for the present, the personal remark is more relevant. maine, says fitzjames, 'was perfectly charming to me at college, as he is now. he was most kind, friendly, and unassuming; and, though i was a freshman and he a young don,[ ] and he was twenty-six when i was twenty--one of the greatest differences of age and rank which can exist between two people having so much in common--we were always really and effectually equal. we have been the closest of friends all through life.' i think, indeed, that maine's influence upon my brother was only second to that of my father. maine brought fitzjames into the apostles in his first term.[ ] maine, says my brother, 'was a specially shining apostle, and in all discussions not only took by far the first and best part, but did it so well and unpretentiously, and in a strain so much above what the rest of us could reach, that it was a great piece of education to hear him.' other members of the little society, which generally included only five or six--the name 'apostles' referring to the limit of possible numbers--were e. h. stanley (afterwards lord derby), who left in march , vernon harcourt (now sir william), h. w. watson, julian fane,[ ] and the present canon holland. old members--monckton milnes, james spedding, henry fitzmaurice hallam, and w. h. thompson (the tutor)--occasionally attended meetings. the late professor hort and the great physicist, clerk maxwell, joined about the time of my brother's departure. he records one statement of maxwell's which has, i suspect, been modified in transmission. the old logicians, said maxwell, recognised four forms of syllogism. hamilton had raised the number to , but he had himself discovered . this, however, mattered little, as the great majority could not be expressed in human language, and even if expressed were not susceptible of any meaning. this specimen would give a very inaccurate notion of the general line of discussion. by the kindness of professor sidgwick, i am enabled to give some specimens of the themes supported by my brother, which may be of interest, not merely in regard to him, but as showing what topics occupied the minds of intelligent youths at the time. the young gentlemen met every saturday night in term time and read essays. they discussed all manner of topics. sometimes they descended to mere commonplaces--is a little knowledge a dangerous thing? is it possible _ridentem dicere verum_? (which fitzjames is solitary in denying)--but more frequently they expatiate upon the literary, poetical, ethical, and philosophical problems which can be answered so conclusively in our undergraduate days. fitzjames self-denyingly approves of the position assigned to mathematics at cambridge. in literary matters i notice that he does not think the poetry of byron of a 'high order'; that he reads some essays of shelley, which are unanimously voted 'unsatisfactory'; that he denies that tennyson's 'princess' shows higher powers than the early poems (a rather ambiguous phrase); that he considers adam, not satan, to be the hero of 'paradise lost'; and, more characteristically, that he regards the novels of the present day as 'degenerate,' and, on his last appearance, maintains the superiority of miss austen's 'emma' to miss brontë's 'jane eyre.' 'jane eyre' had then, i remember, some especially passionate admirers at cambridge. his philosophical theories are not very clear. he thinks, like some other people, that locke's chapter on 'substance' is 'unsatisfactory'; and agrees with some 'strictures' on the early chapters of mill's 'political economy.' he writes an essay to explode the poor old social contract. he holds that the study of metaphysics is desirable, but adds the note, 'not including ontological inquiries under the head of metaphysics.' he denies, however, the proposition that 'all general truths are founded on experience.' he thinks that a meaning can be attached to the term 'freewill'; but considers it impossible 'to frame a satisfactory hypothesis as to the origin of evil.' even the intellect of the apostles had its limits. his ethical doctrines seem to have inclined to utilitarianism. the whole society (four members present) agrees that the system of expediency, 'so far from being a derogation from the moral dignity of man, is the only method consistent with the conditions of his action.' he is neutral upon the question whether 'self-love is the immediate motive of all our actions,' and considers that question unmeaning, 'as not believing it possible that a man should be at once subject and object.' he writes an essay to show that there is no foundation 'for a philosophy of history in the analogy between the progressive improvement of mankind and that of which individuals are capable,' and he holds (in opposition to maine) that carlyle is a 'philosophic historian.' the only direct reference to contemporary politics is characteristic. fane had argued that 'some elements of socialism' should be 'employed in that reconstruction of society which the spirit of the age demands.' maine agrees, but fitzjames denies that any reconstruction of society is needed. theological discussions abound. fitzjames thinks that there are grounds independent of revelation for believing in the goodness and unity of an intelligent first cause. he reads an essay to prove that we can form a notion of inspiration which does not involve dictation. he thinks it 'more agreeable to right reason' to explain the biblical account of the creation by literal interpretation than 'on scientific principles,' but adds the rider, 'so far as it can be reconciled with geological facts.' he denies that the pentateuch shows 'traces of egyptian origin.' he thinks that paley's views of the 'essential doctrines of christianity' are insufficient. he approves the 'strict observance of the sabbath in england,' but notes that he does not wish to 'confound the christian sunday with the jewish sabbath.' the instinct which leads a young man to provide himself with a good set of dogmatic first principles is very natural; and the free and full discussion of them with his fellows, however crude their opinions may be, is among the very best means of education. i need only remark that the apostles appear to have refrained from discussion of immediate politics, and to have been little concerned in some questions which were agitating the sister university. they have nothing to say about apostolical succession and the like; nor are there any symptoms of interest in german philosophy, which hamilton and mansel were beginning to introduce. at cambridge the young gentlemen are content with locke and mill; and at most know something of coleridge and maurice. mr. watson compares these meetings to those at newman's rooms in oxford as described by mark pattison. there a luckless advocate of ill-judged theories might be crushed for the evening by the polite sentence, _very likely_. at the cambridge meetings, the trial to the nerves, as mr. watson thinks, was even more severe. there was not the spell of common reverence for a great man, in whose presence a modest reticence was excusable. you were expected to speak out, and failure was the more appalling. the contests between stephen and harcourt were especially famous. though, says mr. watson, your brother was 'not a match in adroitness and chaff' for his great 'rival,' he showed himself at his best in these struggles. 'the encounters were veritable battles of the gods, and i recall them after forty years with the most vivid recollection of the pleasure they caused.' when sir william harcourt entered parliament, my brother remarked to mr. llewelyn davies, 'it does not seem to be in the natural order of things that harcourt should be in the house and i not there to criticise him.' fitzjames's position in regard both to theology and politics requires a little further notice. at this time my brother was not only a stern moralist, but a 'zealous and reverential witness on behalf of dogma, and that in the straitest school of the evangelicals.' mr. watson mentions the death at college of a fellow-student during the last term of my brother's residence. in his last hours the poor fellow confided to his family his gratitude to fitzjames for having led him to think seriously on religious matters. i find a very minute account of this written by my brother at the time to a common friend. he expresses very strong feeling, and had been most deeply moved by his first experience of a deathbed; but he makes no explicit reflections. though decidedly of the evangelical persuasion at this period, and delighting in controversy upon all subjects, great and small, his intense aversion to sentimentalism was not only as marked as it ever became, but even led to a kind of affectation of prosaic matter of fact stoicism, a rejection of every concession to sentiment, which he afterwards regarded as excessive. the impression made upon him by contemporary politics was remarkable. the events of stirred all young men in one way or the other; and although the apostles were discussing the abstract problems of freewill and utilitarianism, they were no doubt keenly interested in concrete history. no one was more moved than fitzjames. he speaks of the optimistic views which were popular with the liberals after , expounded by cobden and bright and supposed to be sanctioned by the exhibition of . it was the favourite cant that captain pen 'had got the best of captain sword, and that henceforth the kindly earth would slumber, lapt in universal law. i cannot say how i personally loathed this way of thinking, and how radically false, hollow and disgusting it seemed to me then, and seems to me now.' the crash of came like a thunderbolt, and 'history seemed to have come to life again with all its wild elemental forces.' for the first time he was aware of actual war within a small distance, and the settlement of great questions by sheer force. 'how well i remember my own feelings, which were, i think, the feelings of the great majority of my age and class, and which have ever since remained in me as strong and as unmixed as they were in . i feel them now ( ) as keenly as ever, though the world has changed and thinks and feels, as it seems, quite differently. they were feelings of fierce, unqualified hatred for the revolution and revolutionists; feelings of the most bitter contempt and indignation against those who feared them, truckled to them, or failed to fight them whensoever they could and as long as they could: feelings of zeal against all popular aspirations and in favour of all established institutions whatever their various defects or harshnesses (which, however, i wished to alter slowly and moderately): in a word, the feelings of a scandalised policeman towards a mob breaking windows in the cause of humanity. i should have liked first to fire grapeshot down every street in paris, till the place ran with blood, and next to try louis philippe and those who advised him not to fight by court martial, and to have hanged them all as traitors and cowards. the only event in which gave me real pleasure was the days of june, when cavaignac did what, if he had been a man or not got into a fright about his soul, or if he had had a real sense of duty instead of a wretched consciousness of weakness and a false position, louis philippe would have done months before.' he cannot, he admits, write with calmness to this day of the king's cowardice; and he never passed the tuileries in later life without feeling the sentiment about louis xvi. and his 'heritage splendid' expressed by thackeray's drummer, 'ah, shame on him, craven and coward, that had not the heart to defend it!' 'i have often wondered,' adds fitzjames, 'at my own vehement feelings on these subjects, and i am not altogether prepared to say that they are not more or less foolish. i have never seen war. i have never heard a shot fired in anger, and i have never had my courage put to any proof worth speaking of. have i any right to talk of streets running with blood? is it not more likely that, at a pinch, i might myself run in quite a different direction? it is one of the questions which will probably remain unanswered for ever, whether i am a coward or not. but that has nothing really to do with the question. if i am a coward, i am contemptible: but louis philippe was a coward and contemptible whether i am a coward or not; and my feelings on the whole of this subject are, at all events, perfectly sincere, and are the very deepest and most genuine feelings i have.' fitzjames's only personal experience of revolutionary proceedings was on the famous th of april, when he was in london, but saw only special constables. the events of the day confirmed him in the doctrine that every disorganised mob is more likely to behave in the spirit of the lowest and most contemptible units than in the spirit of what is highest in them. i can only add one little anecdote of those days. a friend of my brother's rushed into his rooms obviously to announce some very exciting piece of news. is the mob triumphant in paris? 'i don't know,' was the reply, 'but a point has been decided in the gorham case.' good evangelical as fitzjames then was, he felt that there were more important controversies going on than squabbles over baptismal regeneration. a curious set of letters written in his first vacation to his friend dr. kitchin show, however, that he then took an eager interest in this doctrine. he discusses it at great length in the evangelical sense, with abundant quotations of texts. while interested in these matters, winning fame at the union and enjoying the good opinion of the apostles, fitzjames was failing in a purely academical sense. he tried twice for a scholarship at trinity, and both times unsuccessfully, though he was not very far from success. the failure excluded him, as things then were, from the possibility of a fellowship, and a degree became valueless for its main purpose. he resolved, therefore, to go abroad with my father, who had to travel in search of health. he passed the winter of - in paris, where he learnt french, and attended sittings of the legislative assembly, and was especially interested by proceedings in the french law-courts. he kept the may term of at cambridge, and went out in the 'poll.' judging from the performances of his rivals, he would probably have been in the lower half of the first class in the classical tripos. although his last months at cambridge were not cheering, he retained a feeling for the place very unlike his feeling towards eton. he had now at least found himself firmly on his own legs, measured his strength against other competitors, and made lasting friendships with some of the strongest. it had been, he says, 'my greatest ambition to get a fellowship at trinity, but i got it at last, however, for i was elected an honorary fellow in the autumn of . i have had my share of compliments, but i never received one which gave me half so much pleasure.' he visited cambridge in later years and was my guest, and long afterwards the guest of his friend maine, at certain christmas festivities in trinity hall. he speaks in the warmest terms of his appreciation of the place, 'old and dignified, yet fresh and vigorous.' nearly his last visit was in the autumn of , when he gave a dinner to the apostles, of whom his son james was then a member. fitzjames's friends were naturally surprised at his throwing up the game. most of them set, as i have intimated, a higher value upon academical honours, considered by themselves, than he ever admitted to be just. possibly they exaggerated a little the disgust which was implied by his absolute abandonment of the course. and yet, i find the impression among those who saw most of him at the time, that the disappointment was felt with great keenness. the explanation is given, i think, in some remarks made by my father to mr watson. my father held that the university system of distributing honours was very faulty. men, he said, wanted all the confidence they could acquire in their own powers for the struggle of life. whatever braced and stimulated self-reliance was good. the honour system encouraged the few who succeeded and inflicted upon the rest a 'demoralising sense of failure.' i have no doubt that my father was, in fact, generalising from the case of fitzjames. what really stung the young man was a more or less dim foreboding of the difficulties which were to meet him in the world at large. he was not one of the men fitted for easy success. the successful man is, i take it, the man with an eye for the line of least resistance. he has an instinct, that is, for the applying his strength in the direction in which it will tell most. and he has the faculty of so falling in with other men's modes of thinking and feeling that they may spontaneously, if unconsciously, form a band of supporters. obstacles become stepping-stones to such men. it was fitzjames's fate through life to take the bull by the horns; to hew a path through jungles and up steep places along the steepest and most entangled routes; and to shoulder his way by main strength and weight through a crowd, instead of contriving to combine external pressures into an agency for propulsion. at this time, the contrast between his acceptance with the ablest of his contemporaries in private and his inability to obtain the public stamp of merit perplexed and troubled him. maine and thompson could recognise his abilities. why could not the examiners? might not his ambition have to struggle with similar obstacles at the bar or in the pulpit? i quote from a letter written by my father during fitzjames's academical career to show what was the relation at this time between the two men. my father dictates to my mother a letter to fitzjames, dated january , .[ ] 'you well know,' he says, 'that i have long since surmounted that paternal ambition which might have led me to thirst for your eminence as a scholar. it has not pleased god to give you that kind of bodily constitution and mental temperament which is essential to such success.' he proceeds to say that, although success in examinations is 'not essential to the great ends of fitzjames's existence, it is yet very desirable that he should become a good scholar from higher motives--such,' he adds, 'as are expounded in bacon's "de augmentis."' he solemnly recommends regular prayer for guidance in studies for which the lower motives may be insufficient. it then occurs to my mother that the advice may be a little discouraging. 'i am reminded by my amanuensis that i have left you in the dark as to my opinion of your probable success in the literary labours to which i have exhorted you. you must be a very mole if the darkness be real. from your childhood to this day i have ever shown you by more than words how high an estimate i entertain both of the depth and the breadth of your capacity. i have ever conversed with you as with a man, not as with a child; and though parental partiality has never concealed from me the fact of your deficiency in certain powers of mind which are essential to early excellence in learning, yet i have never been for a moment distrustful of your possessing an intellect which, if well disciplined and well cultured, will continue to expand, improve, and yield excellent fruit long after the mental faculties of many of your more fortunate rivals will have passed from their full maturity into premature decay. faith in yourself (which is but one of the many forms of faith in god) is the one thing needful to your intellectual progress; and if your faith in yourself may but survive the disappointment of your academical ambition, that disappointment will be converted into a blessing.' the letter shows, i think, under the rather elaborate phraseology, both the perspicuity with which the father had estimated his son's talents and the strong sympathy which bound them together. the reference to fitzjames's 'want of faith in himself' is significant. if want of faith is to be measured by want of courage in tackling the difficulties of life, no man could be really less open to the charge than fitzjames. but my father, himself disposed to anticipate ill fortune, had certain reasons for attributing to his son a tendency in the same direction. fitzjames's hatred of all exaggeration, his resolute refusal to be either sentimental or optimistic, led him to insist upon the gloomy side of things. moreover, he was still indolent; given to be slovenly in his work, and rather unsocial in his ways, though warmly attached to a few friends. my father, impressed by these symptoms, came to the conclusion that fitzjames was probably unsuited for the more active professions for which a sanguine temper and a power of quickly attaching others are obvious qualifications. he therefore looked forward to his son's adoption of the clerical career, which his own deep piety as well as his painful experience of official vexations had long made him regard as the happiest of all careers. circumstances strengthened this feeling. my father's income had been diminished by his resignation, while the education of his two sons became more expensive, and he had to contribute to the support of his brother george. no human being could have made us feel more clearly that he would willingly give us his last penny or his last drop of blood. but he was for a time more than usually vexed and anxious; and the fact could not be quite concealed. fitzjames's comparative failure at cambridge suggests to him a significant remark. after speaking of his 'unteachableness,' he observes that his mind was over-full of thoughts about religion, about politics, about morals, about metaphysics, about all sorts of subjects, except art, literature, or physical science. for art of any kind i have never cared, and do not care in the very least. for literature, as such, i care hardly at all. i like to be amused and instructed on the particular things i want to know; but works of genius, as such, give me very little pleasure, and as to the physical sciences, they interest me only so far as they illustrate the true method of inquiry. they, or rather some of them, have the advantage of being particularly true, and so a guide in the pursuit of moral and distinctively human truth. for their own sake, i care very little about them.' v. reading for the bar my brother had definitely to make the choice of a profession upon which he had been reflecting during his college career. he set about the task in an eminently characteristic way. when he had failed in the last scholarship examination, he sat down deliberately and wrote out a careful discussion of the whole question. the result is before me in a little manuscript book, which fitzjames himself re-read and annotated in , , and . he read it once more in . both text and commentary are significant. he is anxious above all things to give plain, tangible reasons for his conduct. he would have considered it disgraceful to choose from mere impulse or from any such considerations as would fall under the damnatory epithet 'sentimental.' he therefore begins in the most prosaic fashion by an attempt to estimate the pecuniary and social advantages of the different courses open to him. these are in reality the church and the bar; although, by way of exhibiting the openness of his mind, he adds a more perfunctory discussion of the merits of the medical profession. upon this his uncle, henry venn, had made a sufficient comment. 'there is a providential obstacle,' he said, 'to your becoming a doctor--you have not humbug enough.' the argument from these practical considerations leads to no conclusion. the main substance of the discussion is therefore a consideration of the qualities requisite for the efficient discharge of clerical or legal duties. a statement of these qualities, he says, will form the major of his syllogism. the minor will then be, 'i possess or do not possess them'; and the conclusion will follow, 'i ought to be a clergyman or a lawyer.' although it is easy to see that the 'major' is really constructed with a view to its applicability to his own character, he does not explicitly give any opinions about himself. he digested the results of the general discussions into thirteen questions which are not stated, though it is clear that they must have amounted to asking, have i the desirable aptitudes? he has, however, elaborately recorded his answers, 'yes' or 'no,' and noted the precise time and place of answering and the length of time devoted to considering each. he began the inquiry on june , . on september he proceeds to answer the questions which he, acting (as he notes) as judge, had left to himself as jury. questions and can be answered 'immediately'; but no. takes two hours. the th, th, and th were considered together, and are estimated to have taken an hour and a half, between and . p.m.; though, as he was in an omnibus for part of the time and there fell asleep, this must be conjectural. the th question could not be answered at all; but was luckily not important. he had answered the th and th during a railway journey to paris on october , and had thereupon made up his mind. one peculiarity of this performance is the cramped and tortuous mode of expressing himself. his thoughts are entangled, and are oddly crossed by phrases clearly showing the influence of maurice and coleridge, and, above all, of his father. 'maurice's books,' he notes in , 'did their utmost to make me squint intellectually about this time, but i never learnt the trick.' a very different writer of whom he read a good deal at college was baxter, introduced to him, i guess, by one of his father's essays. 'what a little prig i was when i made all these antitheses!' he says in . 'i learnt it of my daddy' is the comment of . 'was any other human being,' he asks in , 'ever constructed with such a clumsy, elaborate set of principles, setting his feelings going as if they were clockwork?' this is the comment upon a passage where he has twisted his thoughts into a cumbrous and perfectly needless syllogism. he makes a similar comment on another passage in , but 'i think,' he says in , 'that i was a heavy old man thirty years ago. fifteen years ago i was at the height of my strength. i am beginning to feel now a little more tolerant towards the boy who wrote this than the man who criticised it in ; but he was quite right.' the critic of , i may note, is specially hard upon the lad of for his ignorance of sound utilitarian authorities. he writes against an allusion to hobbes, 'ignorant blasphemy of the greatest of english philosophers!' the lad has misstated an argument from ignorance of bentham and austin. 'i had looked at bentham at the period (says ), but felt a holy horror of him.' harcourt, it is added, 'used to chaff me about him.' admits that ' , though a fine fellow, was rather too hot in his benthamism; takes it easier, and considers that was fairly right, and that his language if not pharisaically accurate, was plain enough for common-sense purposes.' in fact, both critics admit, and i fully agree with them, that under all the crabbed phraseology there was a very large substratum of good sense and sound judgment of men, to which i add of high principle. among the special qualifications of a lawyer, the desire for justice takes a prominent place in his argument. looking at the whole document from the vantage-ground of later knowledge, the real, though unconscious, purpose seems to be pretty evident. fitzjames had felt a repugnance to the clerical career, and is trying to convince himself that he has reasonable grounds for a feeling which his father would be slow to approve. there is not the least trace of any objection upon grounds of dissent from the articles; though he speaks of responsibility imposed by the solemn profession required upon ordination. his real reason is explained in a long comparison between the 'simple-minded' or 'sympathetic' and the 'casuistical' man. they may both be good men; but one of them possesses what the other does not, a power of at once placing himself in close relations to others, and uttering his own thoughts eloquently and effectively without being troubled by reserves and perplexed considerations of the precise meaning of words. he thinks that every clergyman ought to be ready to undertake the 'cure of souls,' and to be a capable spiritual guide. he has no right to take up the profession merely with a view to intellectual researches. in fact, he felt that he was without the qualifications which make a man a popular preacher, if the word may be used without an offensive connotation. he could argue vigorously, but was not good at appealing to the feelings, or offering spiritual comfort, or attracting the sympathies of the poor and ignorant. substantially i think that he was perfectly right not only in the conclusion but in the grounds upon which it was based. he was a lawyer by nature, and would have been a most awkward and cross-grained piece of timber to convert into a priest. he points himself to such cases as swift, warburton, and sydney smith to show the disadvantage of a secular man in a priest's vestments. when his mind was made up, fitzjames communicated his decision to his father. the dangerous illness of had thrown his father into a nervous condition which made him unable to read the quaint treatise i have described. he appears, however, to have argued that a man might fairly take orders with a view to literary work in the line of his profession. fitzjames yielded this ground but still held to the main point. his father, though troubled, made no serious objection, and only asked him to reconsider his decision and to consult henry venn. henry venn wrote a letter, some extracts from which are appended to the volume with characteristic comments. venn was too sensible a man not to see that fitzjames had practically made up his mind. i need only observe that fitzjames, in reply to some hints in his uncle's letter, observes very emphatically that a man may be serving god at the bar as in the pulpit. his career was now fixed. 'i never did a wiser thing in my life,' says , 'than when i determined not to be a clergyman.' 'amen!' says , and i am sure that no other year in the calendar would have given a different answer. 'if anyone should ever care to know what sort of man i was then,' says fitzjames in , 'and, _mutatis mutandis_, am still, that paper ought to be embodied by reference in their recollections.' fitzjames took a lodging in london, for a year or so, and then joined my father at westbourne terrace. he entered at the inner temple, and was duly called to the bar on january , . his legal education, he says, was very bad. he was for a time in the chambers of mr. (now lord) field, then the leading junior on the midland circuit, but it was on the distinct understanding that he was to receive no direct instruction from his tutor. he was also in the chambers of a conveyancer. i learnt, he says, 'a certain amount of conveyancing, but in a most mechanical, laborious, wooden kind of way, which had no advantage at all, except that it gave me some familiarity with deeds and abstracts. my tutor was a pure conveyancer; so i saw nothing of equity drafting. i worked very hard with him, however, but i was incapable of being taught and he of teaching.' the year was memorable for the act which altered the old system of special pleading. 'the new system was by no means a bad one.... i never learnt it, at least not properly, and while i ought to have been learning, i was still under the spell of an unpractical frame of mind which inclined me to generalities and vagueness, and had in it a vast deal of laziness. when i look back on these times, i feel as if i had been only half awake or had not come to my full growth, though i was just under twenty-five when i was called. how i ever came to be a moderately successful advocate, still more to be a rather distinguished judge, is to me a mystery. i managed, however, to get used to legal ways of looking at things and to the form and method of legal arguments.' he was at the same time going through an apprenticeship to journalism, of which it will be more convenient to speak in the next chapter. it is enough to say for the present that his first efforts were awkward and unsuccessful. after he was called to the bar, he read for the ll.b. examination of the university of london; and not only obtained the degree but enjoyed his only university success by winning a scholarship. one of his competitors was the present sir mountstuart grant duff. this performance is connected with some very important passages in his development. he had made some intimate friendships beyond the apostolic circle, of whom grant duff was one of the first. they had already met at the rooms of charles henry pearson, one of my brother's king's college friends.[ ] grant duff was for a long time in very close intimacy, and the friendship lasted for their lives, uninterrupted by political differences. they were fellow-pupils in field's chambers, were on circuit together for a short time till grant duff gave up the profession; and their marriages only brought new members into the alliance. i must confine myself to saying that my brother's frequent allusions prove that he fully appreciated the value of this friendship. another equally intimate friendship of the same date was with henry john stephen smith.[ ] smith was a godson of my uncle, henry john stephen. he and his sister had been from very early years on terms of especial intimacy with our cousins the diceys. where and when his friendship with my brother began i do not precisely know, but it was already very close. as in some later cases, of which i shall have to speak, the friendship seemed to indicate that fitzjames was attracted by complementary rather than similar qualities in the men to whom he was most attached. no two men of ability could be much less like each other. smith's talents were apparently equally adapted for fine classical scholarship and for the most abstract mathematical investigations. if it was not exactly by the toss of a shilling it was by an almost fortuitous combination of circumstances that he was decided to take to mathematics, and in that field won a european reputation. he soared, however, so far beyond ordinary ken that even europe must be taken to mean a small set of competent judges who might almost be reckoned upon one's fingers. but devoted as he was to these abstruse studies, smith might also be regarded as a typical example of the finest qualities of oxford society. his mathematical powers were recognised by his election to the savilian professorship in , and the recognition of his other abilities was sufficiently shown by the attempt to elect him member for the university in . he would indeed have been elected had the choice been confined to the residents at oxford. smith could discourse upon nothing without showing his powers, and he would have been a singular instance in the house of commons of a man respected at once for scholarship and for profound scientific knowledge, and yet a chosen mouthpiece of the political sentiments of the most cultivated constituency in the country. the recognition of his genius was no doubt due in great part to the singular urbanity which made him the pride and delight of all oxford common rooms. with the gentlest of manners and a refined and delicate sense of humour, he had powers of launching epigrams the subtle flavour of which necessarily disappears when detached from their context. but it was his peculiar charm that he never used his powers to inflict pain. his hearers felt that he could have pierced the thickest hide or laid bare the ignorance of the most pretentious learning. but they could not regret a self-restraint which so evidently proceeded from abounding kindness of heart. smith's good nature led him to lend too easy an ear to applications for the employment of his abilities upon tasks to which his inferiors would have been competent. i do not know whether it was to diffidence and reserve or to the gentleness which shrinks from dispelling illusions that another peculiarity is to be attributed. on religious matters, says his biographer, he was 'absolutely reticent'; he would discuss such topics indeed, but without ever mentioning his own faith. i mention this because it is relevant to his relations with my brother. fitzjames was always in the habit of expressing his own convictions in the most downright and uncompromising fashion. he loved nothing better than an argument upon first principles. his intimacy with smith was confirmed by many long rambles together; and for many years he made a practice of spending a night at smith's house at oxford on his way to and from the midland circuit. there, as he says, 'we used to sit up talking ethics and religion till or a.m.' i could not however, if i wished, throw any light upon smith's views; smith, he says in , is a most delightful companion when he has got over his 'reserve'; and a year later he says that smith is 'nearly the only man who cordially and fully sympathises with my pet views.' what were the pet views is more than i can precisely say. i infer, however, from a phrase or two that smith's conversation was probably sceptical in the proper sense; that is, that he discussed first principles as open questions, and suggested logical puzzles. but my brother also admits that he never came to know what was smith's personal position. he always talked 'in the abstract' or 'in the historical vein,' and 'seemed to have fewer personal plans, wishes and objects of any kind than almost any man i have ever known.' these talks at any rate, with distinguished oxford men, must have helped to widen my brother's intellectual horizon. they had looked at the problems of the day from a point of view to which the apostles seem to have been comparatively blind. another influence had a more obvious result. fitzjames had to read stephen's commentaries and bentham[ ] for the london scholarship. bentham now ceased to be an object of holy horror. my brother, in fact, became before long what he always remained, a thorough benthamite with certain modifications. it was less a case of influence, however, than of 'elective affinity' of intellect. the account of fitzjames's experience at cambridge recalls memories of the earlier group who discussed utilitarianism under the leadership of charles austin and looked up to james mill as their leader. the hatred for 'sentimentalism' and 'vague generalities' and the indifference to mere poetical and literary interests were common to both. the strong points of benthamism may, i think, be summed up in two words. it meant reverence for facts. knowledge was to be sought not by logical jugglery but by scrupulous observation and systematic appeals to experience. whether in grasping at solid elements of knowledge benthamists let drop elements of equal value, though of less easy apprehension, is not to my purpose. but to a man whose predominant faculty was strong common sense, who was absolutely resolved that whatever paths he took should lead to realities, and traverse solid ground instead of following some will-o'-the-wisp through metaphysical quagmires amidst the delusive mists of a lawless imagination, there was an obvious fascination in the bentham mode of thought. it must be added, too, that at this time j. s. mill, the inheritor of bentham's influences, was at the height of his great reputation. the young men who graduated in and the following ten years found their philosophical teaching in mill's 'logic,' and only a few daring heretics were beginning to pick holes in his system. fitzjames certainly became a disciple and before long an advocate of these principles. i find one or two other indications of disturbing studies. he says in a letter that greg's 'creed of christendom' (published in ) was the first book of the kind which he read without the sense that he was trespassing on forbidden ground. he told me that he had once studied lardner's famous 'credibility of the gospel history,' to which greg may not improbably have sent him. the impression made upon him was (though the phrase was used long afterwards) that lardner's case 'had not a leg to stand upon.' from the benthamite point of view, the argument for christianity must be simply the historical evidence. paley, for whom fitzjames had always a great respect, put the argument most skilfully in this shape. but if the facts are insufficient to a lawyer's eye, what is to happen? for reasons which will partly appear, fitzjames did not at present draw the conclusions which to many seem obvious. it took him, in fact, years to develope distinctly new conclusions. but from this time his philosophical position was substantially that of bentham, mill, and the empiricists, while the superstructure of belief was a modified evangelicism. my father's liberality of sentiment and the sceptical tendencies which lay, in spite of himself, in his intellectual tendencies, had indeed removed a good deal of the true evangelical dogmatism. fitzjames for a time, as i have intimated, seems to have sought for a guide in maurice. he had been attracted when at king's college by maurice's personal qualities, and when, in , maurice had to leave king's college on account of his views about eternal punishment, fitzjames took a leading part in getting up a testimonial from the old pupils of his teacher. when he became a law student he naturally frequented maurice's sermons at lincoln's inn. nothing could be more impressive than the manner of the preacher. his voice often trembled with emotion, and he spoke as one who had a solemn message of vast importance to mankind. but what was the message which could reach a hard-headed young 'lawyer by nature' with a turn for benthamism? fitzjames gives a kind of general form of maurice's sermons. first would come an account of some dogma as understood by the vulgar. tom paine could not put it more pithily or expressively. then his hearers were invited to look at the plain words of scripture. do they not mean this or that, he would ask, which is quite different to what they had been made to mean? my answer would have been, says fitzjames, that his questions were 'mere confused hints,' which required all kinds of answers, but mostly the answer 'no, not at all.' then, however, came maurice's own answers to them. about this time his hearer used to become drowsy, with 'an indistinct consciousness of a pathetic quavering set of entreaties to believe what, when it was intelligible, was quite unsatisfactory.' long afterwards he says somewhere that it was 'like watching the struggles of a drowning creed.' fitzjames, however, fancied for a time that he was more or less of a mauricean. from one of his friends, the rev. j. llewelyn davies, i have some characteristic recollections of the time. mr. davies was a college friend, and remembers his combativeness and his real underlying warmth of feeling. he remembers how, in , fitzjames was confident that the 'haves' could beat the 'have nots,' 'set his teeth' and exclaimed, 'let them come on.' mr. davies was now engaged in clerical work at the east-end of london. my brother took pleasure in visiting his friend there, learnt something of the ways of the district, and gave a lecture to a limehouse audience. he attended a coffee-house discussion upon the existence of god, and exposed the inconclusiveness of the atheistic conclusions. on another occasion he went with 'tom,' now judge hughes, to support mr. davies, who addressed a crowd in leman street one sunday night. hughes endeavoured to suppress a boy who was disposed for mischief. the boy threw himself on the ground, with hughes holding him down. fitzjames, raising a huge stick, plunged into the thick of the crowd. no one, however, stood forth as a champion of disorder; and mr. davies, guarded by his stalwart supporters, was able to speak to a quiet audience. fitzjames, says mr. davies, was always ready for an argument in those days. he did not seek for a mere dialectical triumph; but he was resolved to let no assumption pass unchallenged, and, above all, to disperse sentiment and to insist upon what was actual and practical. he wrote to mr. davies in reference to some newspaper controversies: 'as to playing single-stick without being ever hit myself, i have no sort of taste for it; the harder you hit the better. i always hit my hardest.' 'some people profess,' he once said to the same friend, 'that the sermon on the mount is the only part of christianity which they can accept. it is to me the hardest part to accept.' in fact, he did not often turn the second cheek. he said in the same vein that he should prefer the whole of the church service to be made 'colder and less personal, and to revive the days of paley and sydney smith.' (the church of the eighteenth century, only without the disturbing influence of wesley, was, as he once remarked long afterwards, his ideal.) 'after quoting these words,' says mr. davies in conclusion, 'i may be permitted to add those with which he closed the note written to me before he went to india (november , ), "god bless you. it's not a mere phrase, nor yet an unmeaning or insincere one in my mouth--affectionately yours."' i shall venture to quote in this connection a letter from my father, which needs a word of preface. among his experiments in journalism, fitzjames had taken to writing for the 'christian observer,' an ancient, and, i imagine, at the time, an almost moribund representative of the evangelical party. henry venn had suggested, it seems, that fitzjames might become editor. fitzjames appears to have urged that his theology was not of the desired type. he consulted my father, however, who admitted the difficulty to be insuperable, but thought for a moment that they might act together as editor and sub-editor. my father says in his letters (august and , ): 'i adhere with no qualifications of which i am conscious to the theological views of my old clapham friends. you, i suppose, are an adherent of mr. maurice. to myself it appears that he is nothing more than a great theological rhetorician, and that his only definite and appreciable meaning is that of wedding the gospel to some form of philosophy, if so to conceal its baldness. but paul of tarsus many ages ago forbade the banns.' in a second letter he says that there does not seem to be much real difference between fitzjames's creed and his own. 'it seems to me quite easy to have a theological theory quite complete and systematic enough for use; and scarcely possible to reach such a theory with any view to speculation--easy, i mean, and scarcely possible for the unlearned class to which i belong. the learned are, i trust and hope, far more fixed and comprehensive in their views than they seem to me to be, but if i dared trust to my own observation i should say that they are determined to erect into a science a series of propositions which god has communicated to us as so many detached and, to us, irreconcilable verities; the common link or connecting principle of which he has not seen fit to communicate. i am profoundly convinced of the consistency of all the declarations of scripture; but i am as profoundly convinced of my own incapacity to perceive that they are consistent. i can receive them each in turn, and to some extent i can, however feebly, draw nutriment from each of them. to blend them one with another into an harmonious or congruous whole surpasses my skill, or perhaps my diligence. but what then? i am here not to speculate but to repent, to believe and to obey; and i find no difficulty whatever in believing, each in turn, doctrines which yet seem to me incompatible with each other. it is in this sense and to this extent that i adopt the whole of the creed called evangelical. i adopt it as a regulator of the affections, as a rule of life and as a quietus, not as a stimulant to inquiry. so, i gather, do you, and if so, i at least have no right to quarrel with you on that account. only, if you and i are unscientific christians, let us be patient and reverent towards those whose deeper minds or more profound inquiries, or more abundant spiritual experience, may carry them through difficulties which surpass our strength.' my brother's reverence for his father probably prevented him from criticising this letter as he would have criticised a similar utterance from another teacher. he has, however, endorsed it--i cannot say whether at the time--with a tolerably significant remark. 'this,' he says, 'is in the nature of a surrebutter; only the parties, instead of being at issue, are agreed. my opinion as to his opinions is that they are a sort of humility which comes so very near to irony that i do not know how to separate them. fancy old venn and simeon having had more capacious minds than sir james (_credat christianus_).' the 'christian observer' was at this time edited by j. w. cunningham, vicar of harrow, who was trying to save it from extinction. he had been educated at mr. jowett's, at little dunham and at cambridge, and had been a curate of john venn, of clapham. he belonged, therefore, by right, to the evangelical party, and had been more or less known to my father for many years. his children were specially intimate with my aunt, mrs. batten, whose husband was a master at harrow. emelia batten, now mrs. russell gurney, was a friend of cunningham's children, and at this time was living in london, and on very affectionate terms with fitzjames. he used to pour out to her his difficulties in the matter of profession choosing. there were thus various links between the cunninghams and ourselves. mr. cunningham happened to call upon my father at norwich, in the summer of . with him came his eldest daughter by his second wife, mary richenda cunningham, and there my brother saw her for the first time. he met her again in company with miss batten, on march , , as he records, and thereupon fell in love, 'though in a quiet way at first. this feeling has never been disturbed in the slightest degree. it has widened, deepened, and strengthened itself without intermission from that day to this' (january , ). the connection with the 'christian observer' was of value, not for the few guineas earned, but as leading to occasional visits to harrow. fitzjames says that he took great pains with his articles, and probably improved his style, though 'kind old mr. cunningham' had to add a few sentences to give them the proper tone. they got him some credit from the small circle which they reached, but that was hardly his main object. 'this period of my life closed by my being engaged on november , , at brighton, just eighteen years to the day after i went to school there, and by my being married on april , , at harrow church, where my father and mother were married forty years before.' the marriage, he says, 'was a blessed revelation to me. it turned me from a rather heavy, torpid youth into the happiest of men, and, for many years, one of the most ardent and energetic. it was like the lines in tennyson-- a touch, a kiss, the charm was snapped . . . . . . . and all the long-pent stream of life dashed downward in a cataract. i am surprised to find that, when i look back to that happiest and most blessed of days through the haze of upwards of thirty-two years, i do not feel in the least degree disposed to be pathetic over the lapse of life or the near approach of old age. i have found life sweet, bright, glorious. i should dearly like to live again; but i am not afraid, and i hope, when the time comes, i shall not be averse to die.' at this point the autobiographical fragment ceases. i am glad that it has enabled me to use his own words in speaking of his marriage. no one, i think, can doubt their sincerity, nor can anyone who was a witness of his subsequent life think that they over-estimate the results to his happiness. i need only add that the marriage had the incidental advantage of providing him with a new brother and sister; for henry (now sir henry) stewart cunningham, and emily cunningham (now lady egerton), were from this time as dear to him as if they had been connected by the closest tie of blood relationship. footnotes: [footnote : i have quoted a few phrases from it in the previous chapter.] [footnote : he says the th, and mentions more than once a date which afterwards became interesting for another reason. the date given by my mother at the time must be accepted; but this is the only error i have found in my brother's statements--and it is not of profound importance.] [footnote : i have to thank mr. arthur d. coleridge, my brother's schoolfellow and lifelong friend for a letter containing his recollections of this period.] [footnote : macvey napier correspondence.] [footnote : my father was sworn of h. m. privy council october , , and on april , , appointed by her majesty in council member of the committee of privy council for the consideration of all matters relating to trade and foreign plantations (sir james stephen and sir edward ryan were the last two appointed under that form and title); made k.c.b. april , , and finally retired on pension may , , having been on sick leave since october .] [footnote : kindly sent to me by mr. montague butler, of pembroke college, cambridge.] [footnote : see an article by w. d. christie in _macmillan's magazine_ for november .] [footnote : maine was born august , , and therefore six years and a half older than fitzjames.] [footnote : he was proposed by maine on october , and elected november , .] [footnote : _the life of julian fane_, by his intimate friend lord lytton, was published in . it includes some account of the 'apostles.'] [footnote : it refers, i suppose, to the son's failure to get into the first class in the college examination at christmas .] [footnote : pearson died in , after a career in england and australia much troubled by ill health. his book upon _national character_, published in , first made his remarkable abilities generally known, though he had written very ably upon history.] [footnote : born november , , d. february , . see the memoir by c. h. pearson prefixed to the collection of smith's _mathematical papers_ ( ).] [footnote : i guess dumont's 'principles.'] chapter iii _the bar and journalism_ i. introductory i have traced at some length the early development of my brother's mind and character. henceforward i shall have to describe rather the manifestation than the modification of his qualities. he had reached full maturity, although he had still much to learn in the art of turning his abilities to account. his 'indolence' and 'self-indulgence,' if they had ever existed, had disappeared completely and for ever. his life henceforward was of the most strenuous. he had become a strong man--strong with that peculiar combination of mental and moral force which reveals itself in masculine common sense. his friends not unfrequently compared him to dr. johnson, and, much as the two men differed in some ways, there was a real ground for the comparison. fitzjames might be called pre-eminently a 'moralist,' in the old-fashioned sense in which that term is applied to johnson. he was profoundly interested, that is, in the great problems of life and conduct. his views were, in this sense at least, original--that they were the fruit of his own experience, and of independent reflection. most of us are so much the product of our surroundings that we accept without a question the ordinary formulæ which we yet hold so lightly that the principles which nominally govern serve only to excuse our spontaneous instincts. the stronger nature comes into collision with the world, disputes even the most current commonplaces, and so becomes conscious of its own idiosyncrasies, and accepts only what is actually forced upon it by stress of facts and hard logic. the process gives to the doctrines which, with others, represent nothing but phrases, something of the freshness and vividness of personal discoveries. probably ninety-nine men in a hundred assume without conscious inconsistency the validity both of the moral code propounded in the sermon on the mount, and of the code which regulates the actual struggle for life. they profess to be at once gentlemen and christians, and when the two codes come into conflict, take the one which happens to sanction their wishes. they do not even observe that there is any conflict. fitzjames could not take things so lightly. even in his infancy he had argued the first principles of ethics, and worked out his conclusions by conflicts with schoolboy bullies. it is intelligible, therefore, that, as mr. davies reports, the sermon on the mount should be his great difficulty in accepting christianity. its spirit might be, in a sense, beautiful; but it would not fit the facts of life. so, he observes, in his autobiographical fragment, that one of his difficulties was his want of sympathy for the kind of personal enthusiasm with which his father would speak of jesus christ. he tried hard to cultivate the same feelings, but could not do so with perfect sincerity. a man with such distinct and vivid convictions in the place of mere conventional formulæ was naturally minded to utter them. he was constantly provoked by the popular acceptance of what appeared to him shallow and insincere theories, and desired to expose the prevailing errors. but the 'little preacher' of three years old had discovered at one and twenty that the pulpit of the ordinary kind was not congenial to him. his force of mind did not facilitate a quick and instinctive appreciation of other people's sentiments. when he came into contact with a man whose impressions of the world were opposed to his own, he was inclined to abandon even the attempt to account for the phenomenon. a man incapable of seeing things in the proper light was hardly worth considering at all. fitzjames was therefore not sympathetic in the sense of having an imagination ready to place him at other men's point of view. in another sense his sympathies were exceedingly powerful. no man had stronger or more lasting affections. once attached to a man, he believed in him with extraordinary tenacity and would defend him uncompromisingly through thick and thin. if, like johnson, he was a little too contemptuous of the sufferings of the over-sensitive, and put them down to mere affectation or feeblemindedness, he could sympathise most strongly with any of the serious sorrows and anxieties of those whom he loved, and was easily roused to stern indignation where he saw sorrow caused by injustice. i shall mention here one instance, to which, for obvious reasons, i can only refer obscurely; though it occupied him at intervals during many years. shortly after being called to the bar he had agreed to take the place of a friend as trustee for a lady, to whom he was then personally unknown. a year or two later he discovered that she and her husband were the objects of a strange persecution from a man in a respectable position who conceived himself to have a certain hold over them. fitzjames's first action was to write a letter to the persecutor expressing in the most forcible english the opinion that the gentleman's proper position was not among the respectable but at one of her majesty's penal settlements. his opinion was carefully justified by a legal statement of the facts upon which it rested, and the effect was like the discharge of the broadside of an old ship of the line upon a hostile frigate. the persecutor was silenced at once and for life. fitzjames, meanwhile, found that the money affairs of the pair whose champion he had become were deeply embarrassed. he took measures, which were ultimately successful, for extricating them from their difficulties; and until the lady's death, which took place only a year or two before his own, was her unwearied counsellor and protector in many subsequent difficulties. though i can give no details, i may add that he was repaid by the warm gratitude of the persons concerned, and certainly never grudged the thought and labour which he had bestowed upon the case. fitzjames having made up his mind that he was a 'lawyer by nature,' had become a lawyer by profession. yet the circumstances of his career, as well as his own disposition, prevented him from being absorbed in professional duties. for the fifteen years which succeeded his call to the bar he was in fact following two professions; he was at once a barrister and a very active journalist. this causes some difficulty to his biographer. my account of his literary career will have to occupy the foreground, partly because the literary story bears most directly and clearly the impress of his character, and partly because, as will be seen, it was more continuous. i must, however, warn my readers against a possible illusion of perspective. to fitzjames himself the legal career always represented the substantive, and the literary career the adjective. circumstances made journalism highly convenient, but his literary ambition was always to be auxiliary to his legal ambition. it would, of course, have been injurious to his prospects at the bar had it been supposed that the case was inverted; and as a matter of fact his eyes were always turned to the summit of that long hill of difficulty which has to be painfully climbed by every barrister not helped by special interest or good fortune. this much must be clearly understood, but i must also notice two qualifications. in the first place, though he became a journalist for convenience, he was in some sense too a journalist by nature. he found, that is, in the press a channel for a great many of the reflections which were constantly filling his mind and demanding some outlet. he wrote for money, and without the least affectation of indifference to money; but the occupation enabled him also to gratify a spontaneous and powerful impulse. and, in the next place, professional success at the bar was in his mind always itself connected with certain literary projects. almost from the first he was revolving schemes for a great book, or rather for a variety of books. the precise scheme changed from time to time; but the subject of these books is always to be somewhere in the province which is more or less common to law and ethics. sometimes he is inclined to the more purely technical side, but always with some reference to the moral basis of law; and sometimes he leans more to philosophical and theological problems, but always with some reference to his professional experience and to legal applications. so, for example, he expresses a desire (in a letter written, alas! after the power of executing such schemes had disappeared) to write upon the theory of evidence; but he points out that the same principles which underlie the english laws of evidence are also applicable to innumerable questions belonging to religious, philosophical, and scientific inquiries. now the position of a judge or an eminent lawyer appeared to him from the first to be desirable for other reasons indeed, but also for the reason that it would enable him to gain experience and to speak with authority. at moments he had thoughts of abandoning law for literature; although the thoughts disappeared as soon as his professional prospects became brighter. his ideal was always such a position as would enable him to make an impression upon the opinions of his countrymen in that region where legal and ethical speculation are both at home. ii. first years at the bar i will begin by some general remarks upon his legal career, which will thus be understood as underlying his literary career. fitzjames was called to the bar of the inner temple on january , . he had his first brief soon afterwards at the central criminal court, where twenty-five years later he also made his first appearance as a judge. in the same year he joined the midland circuit. he had no legal connections upon that or any other circuit. his choice was determined by the advice of kenneth macaulay, then leader of the midland circuit. he afterwards referred to this as one of the few cases in which good advice had really been of some use. in a letter written in july he observes that the midland is the nearest approach to the old circuits as they were before the days of railways. it was so far from london that the barristers had to go their rounds regularly between the different towns instead of coming down for the day. he describes the party who were thus brought together twice a year, gossiping and arguing all day, with plenty of squabbling and of 'rough joking and noisy high spirits' among the idler, that is, much the larger part. he admits that the routine is rather wearisome: the same judgments and speeches seem to repeat themselves 'like dreams in a fever,' and 'droves of wretched over-driven heavy people come up from the prison into a kind of churchwardens' pew,' when the same story is repeated over and over again. and yet he is profoundly interested. matters turn up which 'seem to me infinitely more interesting than the most interesting play or novel,' and you get strange glimpses of the ways of thinking and living among classes otherwise unknown to you. these criminal courts, he says in another letter, are a 'never-ending source of interest and picturesqueness for me. the little kind of meat-safe door through which the prisoners are called up, and the attendant demon of a gaoler who summons them up from the vasty deep and sends them back again to the vasty deep for terms of from one week to six years, have a sort of mysterious attraction.' mr. franklin lushington, who was my brother's contemporary on the circuit and ever afterwards an intimate friend, has kindly given me his impressions of this period. it would have been difficult, he says, to find a circuit 'on which the first steps of the path that opens on general eminence in the profession were slower to climb than on the midland.' it was a small circuit, 'attended by some seventy or eighty barristers and divided into two or three independent and incompatible sets of quarter sessions, among which after a year or so of tentative experience it was necessary to choose one set and stand by it. fitzjames and i both chose the round of the lincolnshire, nottinghamshire, and derbyshire sessions; which involved a good deal of travelling and knocking about in some out-of-the-way country districts, where the sessions bar is necessarily thrown into circumstances of great intimacy. even when a sessions or assize reputation was gained, it was and remained intensely local. the intricate points relative to settlements and poor-law administration, which had provided numerous appeals to the higher courts in a previous generation, had dwindled gradually to nothing. even the most remarkable success, slowly and painfully won in one county, might easily fail to produce an effect in the next, or to give any occasion for passing through the thickset hedge which parts provincial from metropolitan notoriety. the most popular and admired advocate in the lincolnshire courts for many years was our dear friend f. flowers, afterwards a police magistrate, one of the wittiest, most ingenious, and most eloquent of the bar. though year after year he held every lincolnshire jury in the hollow of his hand, and frequently rose to a strain of powerful and passionate oratory which carried away himself and his hearers--not lincolnshire folk only--in irresistible sympathy with his cause, flowers remained to his last day on circuit utterly unknown and untried in the adjacent shires of derby and nottingham.' a circuit bar, adds mr. lushington, 'may be roughly divided into three classes: those who are determined to make themselves heard; those who wish to be heard if god calls; and those who without objecting to be heard wish to have their pastime whether they are heard or not. fitzjames was in the first category, and from the first did his utmost to succeed, always in the most legitimate way.' no attorney, looking at the rows of wigs in the back benches, could fail to recognise in him a man who would give his whole mind to the task before him. 'it was natural to him to look the industrious apprentice that he really was; always craving for work of all kinds and ready at a moment's notice to turn from one task to another. i used to notice him at one moment busy writing an article in complete abstraction and at the next devouring at full speed the contents of a brief just put into his hand, and ready directly to argue the case as if it had been in his hand all day.' fitzjames not long afterwards expressed his own judgment of the society of which he had become a member. the english bar, he says,[ ] 'is exactly like a great public school, the boys of which have grown older and have exchanged boyish for manly objects. there is just the same rough familiarity, the same general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner.' it would astonish outsiders if they could hear the remarks sometimes addressed by the british barrister to his learned brother--especially on circuit. the bar, he concludes, 'are a robust, hard-headed, and rather hard-handed set of men, with an imperious, audacious, combative turn of mind,' sometimes, though rarely, capable of becoming eloquent. their learning is 'multifarious, ill-digested and ill-arranged, but collected with wonderful patience and labour, with a close exactness and severity of logic, unequalled anywhere else, and with a most sagacious adaptation to the practical business of life.' fitzjames's position in this bigger public school had at any rate one advantage over his old etonian days. there was no general prejudice against him to be encountered; and in the intellectual 'rough and tumble' which replaced the old school contests his force of mind was respected by everyone and very warmly appreciated by a chosen few. among his closest intimates were mr. lushington and his old schoolfellow mr. arthur coleridge, who became clerk of assize upon the circuit. at starting he had also the society of his friend grant duff. they walked together in the summer of , and visited the trappist monastery in charnwood forest. there they talked to a shaven monk in his 'dreary white flannel dress,' bound with a black strap. they moralised as they returned, and fitzjames thought on the whole that his own life was wholesomer than the monastic. he hopes, however, that the monk and his companions may 'come right,' as 'no doubt they will if they are honest and true.' 'i suppose one may say that god is in convents and churches as well as in law courts or chambers--though not to my eyes so palpably.' sir m. grant duff left the circuit after a year or two; but fitzjames found a few other congenial companions with whom he could occasionally walk and often argue to his heart's content. among his best friends was kenneth macaulay, who became a leader on the circuit, and who did his best to introduce fitzjames to practice. mr. arthur coleridge, too, was able to suggest to the judges that fitzjames should be appointed to defend prisoners not provided with counsel. this led by degrees to his becoming well known in the crown court, although civil business was slow in presenting itself. several of the judges took early notice of him. in he has some intercourse with lord campbell, then chief justice, and with chief baron pollock, both of them friends of his father. he was 'overpowered with admiration' at campbell's appearance. campbell was 'thickset as a navvy, as hard as nails,' still full of vigour at the age of seventy-six, about the best judge on the bench now, and looking fit for ten or twelve years' more of work.[ ] pollock was a fine lively old man, thin as a threadpaper, straight as a ramrod, and full of indomitable vivacity. the judges, however, who formed the highest opinion of him and gave him the most encouragement were lord bramwell and willes. in he observes that he was about to take a walk with alfred wills of the 'high alps.' this was the present mr. justice wills; who has also been kind enough to give me some recollections which are to the purpose in this place. wills was called to the bar in and joined the midland circuit, but attended a different set of quarter sessions. he saw a good deal of fitzjames, however, at the assizes; and though not especially intimate, they always maintained very friendly relations. the impression made upon wills in these early years was that fitzjames was a solitary and rather unsocial person. he was divided from his fellows, as he had been divided from his companions at school and college, by his absorption in the speculations which interested him so profoundly. 'he was much more learned, much better read, and had a much more massive mind than most of us, and our ways and talks must have seemed petty and trivial to him.' though there were 'some well-read men and good scholars among us, even they had little taste for the ponderous reading in which fitzjames delighted.' wills remembers his bringing hobbes' 'leviathan' with him, and recreating himself with studying it after his day's work. to such studies i shall have to refer presently, and i will only say, parenthetically, that if mr. justice wills would read hobbes, he would find, though he tells me that he dislikes metaphysics, that the old philosopher is not half so repulsive as he looks. still, a constant absorption in these solid works no doubt gave to his associates the impression that fitzjames lived in a different world from theirs. he generally took his walks by himself, coleridge being the most frequent interrupter of his solitude. he would be met pounding along steadily, carrying, often twirling, a 'very big stick,' which now and then came down with a blow--upon the knuckles, i take it, of some imaginary blockhead on the other side--muttering to himself, 'immersed in thought and with a fierce expression of concentrated study.' he did not often come to mess, and when he did found some things of which he did not approve. barristers, it appears, are still capable of indulging in such tastes as were once gratified by the game of 'high jinks,' celebrated in 'guy mannering.' the circuit court was the scene of a good deal of buffoonery. it was customary to appoint a 'crier'; and fitzjames, 'to his infinite disgust, was elected on account of his powerful voice. he stood it once or twice, but at last broke out in a real fury, and declared he would never come to the circuit court again, calling it by very strong names. if he had been a less powerful man i am sure that there would have been a fight; but no one cared to tackle that stalwart frame, and i am not sure that the assailant would have come out of the fray alive if he had.' the crisis of this warfare appears to have happened in , when yorkshire was added to the midland circuit, and an infusion of barristers from the northern circuit consequently took place. it seems that the manners and customs of the northerners were decidedly less civilised than those of their brethren. a hard fight had to be fought before they could be raised to the desired level. in i find that fitzjames proposed the abolition of the circuit court. he was defeated by twenty votes to fifteen; and marvels at the queer bit of conservatism cropping up in an unexpected place. in spite of these encounters, fitzjames not only formed some very warm friendships on circuit, but enjoyed many of the social meetings, and often recurred to them in later years. he only despised tomfoolery more emphatically than his neighbours. nobody, indeed, could be a more inconvenient presence where breaches of decency or good manners were to be apprehended. i vividly remember an occasion upon which he was one of a little party of young men on a walking tour. a letter read out by one of them had the phrase, 'what a pity about mrs. a.!' someone suggested a conjectural explanation not favourable to mrs. a.'s character. he immediately came in for a stern denunciation from fitzjames which reduced us all to awestruck silence, and, i hope, gave the speaker an unforgetable lesson as to the duty of not speaking lightly in matters affecting female reputation. he collapsed; and i do not recollect that he ventured any comment upon a letter of the next morning which proved his conjecture to be correct. the principle was the same. these characteristics, as i gather both from mr. justice wills and from mr. lushington, caused fitzjames to be the object rather of respect than of general popularity. his friends could not fail to recognise the depth of his real kindness of heart. mr. justice wills refers to one little incident of which my brother often spoke. fitzjames visited him at the 'eagle's nest,' in , and there found him engaged in nursing auguste balmat, the famous guide, who was dying of typhoid fever. the natives were alarmed, and the whole labour of nursing fell upon mr. and mrs. wills. fitzjames, on his arrival, relieved them so far as he could, and enabled them to get some nights' sleep. i remember his description of himself, sitting up by the dying man, with a volume of 'pickwick' and a vessel of holy water, and primed with some pious sentences to be repeated if the last agony should come on. it was a piece of grim tragedy with a touch of the grotesque which impressed him greatly. 'i never knew anyone,' says mr. justice wills, 'to whom i should have gone, if i wanted help, with more certainty of getting it.' when fitzjames was on the bench, he adds, and he had been himself disappointed of reaching the same position under annoying circumstances, he had to appear in a patent case before his friend. fitzjames came down to look at a model, and wills said, 'your lordship will see,' &c. 'he got hold of the hand next his own, gave me a squeeze which i did not forget in a hurry, and whispered, "if you ever call me 'my lordship' again, i shall say something!"' that hand-grip, indeed, as wills remarks, was eminently characteristic. it was like the squeeze of a vice, and often conveyed the intimation of a feeling which shrank from verbal expression. it is plain enough that a man of such character would not find some difficulties smoothed for him. he could not easily learn the lesson of 'suffering fools gladly.' he formed pretty strong views about a man and could express them frankly. the kind of person whom carlyle called a windbag, and to whom he applied equally vigorous epithets, was especially obnoxious to him, however dexterous might be such a man's manipulation of difficult arguments. his talent, too, scarcely lent itself to the art of indirect intimations of his opinions. he remarks himself, in one of his letters, that he is about as clever at giving hints as the elder osborne in 'vanity fair'; of whom thackeray says that he would give what he called a 'hint' to a footman to leave his service by kicking the man downstairs. and, therefore, i suspect that when fitzjames considered someone--even a possible client--to be a fool or a humbug, his views might be less concealed than prudence would have dictated. 'when once he had an opportunity of showing his capacities,' says mr. lushington, 'the most critical solicitor could not fail to be satisfied of his vigour and perseverance; his quick comprehension of, and his close attention to detail; and his gift in speaking of clear common-sense and forcible expression, free from wearisome redundancy or the suggestion of an irony that might strike above the heads of the jury. he gained the confidence of clients of all sorts--some of curious, impulsive, and not over-strict character, who might, perhaps, have landed a weaker or less rigidly high-principled advocate in serious blunders; and i do not think that he ever lost a client whom he had once gained.' but the first step was not easy. his solitary ways, his indifference to the lighter pursuits of his companions, and his frequent absorption in other studies, made him slow to form connections and prevented him from acquiring early, if he ever fully acquired, the practical instinct which qualifies a man for the ordinary walk of law courts. when, says mr. justice wills, 'he got you by yourself in a corner--with no opportunity of dancing round him--in a single combat of stroke for stroke, real business, conditions defined and mastered, he was a most formidable antagonist, mercilessly logical, severely powerful, with the hand of a giant.' but he was, says the same critic, rather too logical for the common tricks of the trade, which are learnt by a long and persistent handling of ordinary business. he did not understand what would 'go down,' and what was of 'such a character that people would drive a coach and six through precedents and everything else in order to get rid of it.' he was irritated by an appeal to practical consequences from what he considered to be established principles. then, too, his massive intellect made him wanting in pliability. 'he could not change front in presence of the enemy'; and rather despised the adaptations by which clever lawyers succeed in introducing new law under a pretence of applying old precedents. as i have already said, he was disgusted with the mere technicalities of the law, and the conversion of what ought to be a logical apparatus for the discovery of truth into an artificial system of elaborate and superfluous formalities. his great ambition was (in his favourite expression) to 'boil down' the law into a few broad common-sense principles. he was, therefore, not well qualified for some branches of legal practice, and inclined to regard skill of the technical kind with suspicion, if not with actual dislike. upon this, however, i shall have to dwell hereafter. meanwhile, he was deeply interested in the criminal cases, which were constantly presenting ethical problems, and affording strange glimpses into the dark side of human nature. such crimes showed the crude, brutal passions, which lie beneath the decent surface of modern society, and are fascinating to the student of human nature. he often speaks of the strangely romantic interest of the incidents brought to light in the 'state trials'; and in these early days he studied some of the famous cases, such as those of palmer and dove, with a professional as well as a literary interest. in later life he avoided such stories; but at this period he occasionally made a text of them for newspaper articles, and was, perhaps, tempted to adopt theories of the case too rapidly. this was thought to be the case in regard to one bacon, who was tried in lincoln in the summer of . the case was one to which fitzjames certainly attached great importance, and i will briefly mention it before passing to his literary career. bacon and his wife were tried at london in the spring of for the murder of their two young children. it was sufficiently proved upon that occasion that mrs. bacon (who had already been in a madhouse) committed the crime in a fit of insanity. bacon, however, had endeavoured to manufacture some evidence in order to give countenance to a theory that the murder had been committed by housebreakers during his absence. he thus incurred suspicion, and was placed upon trial with his wife. it also came out that he had been tried (and acquitted) a year before for setting fire to his own house, and reasons appeared for suspecting him of an attempt to poison his mother at stamford three years previously. upon these facts fitzjames wrote an article in the 'saturday review.'[ ] he declared that the crime was as interesting, except for the want of dignity of the actors, as the events which gave the plot of some of the tragedies of Ã�schylus. it reminded him, too, of the terrible story of 'jane eyre.' for we had to suppose either that bacon suffered by his marriage to a mad woman who had poisoned his mother, burnt his house, and cut his children's throats; or else that the wife's last outbreak had been the incidental cause of the discovery of his own previous crimes. in the last case we had an instance of that 'retributive vengeance' which, though it cannot be 'reduced to a very logical form, speaks in tones of thunder to the imaginations of mankind.' the case came, as it happened, to the midland circuit. bacon was tried in lincoln on july for poisoning his mother. fitzjames writes from the court, where he is waiting in the hope that he may be asked by the judge to defend the prisoner. while he writes, the request comes accordingly, and he feels that if he is successful he may make the first step to fortune. he was never cooler or calmer, he says, in his life, and has always, 'in a way of his own,' 'truly and earnestly trusted in god to help him in all the affairs of life.' he made his speech, and suggested the theory already noticed, that the poisoning might have been the act of the mad wife. the judge paid him a high compliment, but summed up for a conviction, which accordingly followed. fitzjames himself thought, though he was not 'quite sure,' that the man was guilty. he commented upon the case in another article in the 'saturday review,' not, of course, to dispute the verdict, but to draw a characteristic inference. is it not, he asks, very hard upon a poor prisoner that he should have no better means of obtaining counsel than the request of the judge at the last moment to some junior barrister? they manage these things, he thinks, better in france; though 'we have no reason to speak with disrespect of the gentleman who conducted the case.' whatever may have been thought of fitzjames's judgment in this case, he gradually, as i have said, came to be regularly employed upon similar occasions. by slow degrees, too, more profitable briefs came to him; but he was in the trying position of appearing on a good many occasions which excited much interest, while more regular work still declined to present itself in corresponding proportions. now and then a puff of wind filled his sails for the moment, but wearying calms followed, and the steady gale which propels to fortune and to the highest professional advancement would not set in with the desired regularity. iii. the 'saturday review.' here therefore i leave the story of his main profession to take up his work in other capacities. when he left cambridge, the 'morning chronicle' was passing through a short phase of unprofitable brilliancy. it had been bought by the 'peelites,' who are reported to have sunk as much as , _l._ upon it. john douglas cook was editor, and among his contributors were maine and others of fitzjames's college friends. naturally he was anxious to try his hand. he wrote several articles in the winter of - . 'the pay,' says fitzjames, 'was very high-- _l._ _s._ an article, and i thought that i was going to make a fortune. i was particularly pleased, i remember, with my smartness and wit, but, alas and alas! cook found me out and gradually ceased to put in my articles. i have seldom felt much keener disappointment, for i was ardently desirous of standing on my own legs and having in my pocket a little money of my own earning. i took heart, however, and decided to try elsewhere. i wrote one or two poor little articles in obscure places, and at last took (as already stated) to the "christian observer." 'i took great pains,' he says, 'with my articles, framing my style upon conveyancing and special pleading, so that it might be solid, well-connected, and logical, and enable me to get back to the paradise of _l._ _s._ an article, from which, as i strongly suspected, my flippancy had excluded me.' 'flippancy' was clearly not in his line. besides the 'christian observer,' i find that the 'law magazine' took a few articles from him, but there is no trace of other writings until . in that year was published the first number of 'cambridge essays,' which, in alliance with a series of 'oxford essays,' lived for a couple of years and contained some very good work. maine became first known to the public by an article upon roman law contributed in , and a study of coleridge's philosophy by professor hort, another apostle, is one of the best extant discussions of a difficult subject. fitzjames, in , wrote a characteristic article upon 'the relation of novels to life,' and in one upon 'characteristics of english criminal law.' the articles roused some interest and helped to encourage him. meanwhile the 'morning chronicle' had changed hands, and its previous supporters set up the 'saturday review,' of which the first number appeared on november , . john douglas cook, who took command of the new adventure and brought some followers from the 'morning chronicle,' was a remarkable man in his way. he was one of the innumerable young scots who go out to seek their fortune abroad. he had received some appointment in india, quarrelled with his employers, and came home on foot, or partly on foot, for his narratives of this period were generally, it was thought, marked rather by imaginative fervour than by a servile adherence to historic accuracy. he found work on the 'times,' supported mr. walter in an election, was taken up by the duke of newcastle, and was sent by him to inquire into the revenues of the duchy of cornwall. he then appeared as an editor, and, if he failed in the 'morning chronicle,' made ample amends by his guidance of the 'saturday review.' he was a man of no particular education, and apparently never read a book. his language and manners were such as recalled memories of the old days of maginn and other bohemians whose portraits are drawn in 'pendennis.' but besides other qualities which justified the friendship and confidence of his supporters, cook had the faculty of recognising good writing when he saw it. newspapers have occasionally succeeded by lowering instead of raising the standard of journalism, but the 'saturday review' marked at the time as distinct an advance above the previous level as the old 'edinburgh review.' in his fifteen years' editorship of the 'saturday review,' cook collected as distinguished a set of contributors as has ever been attracted to an english newspaper. many of them became eminent in other ways. maine and sir w. harcourt were, i believe, among the earliest recruits, following cook from the 'morning chronicle.' others, such as professor freeman, mark pattison, mr. goldwin smith, mr. john morley, the late lord justice bowen, and many other well-known writers, joined at different periods and with more or less regularity, but from the first the new journal was wanting neither in ability nor audacity.[ ] two of the chief contributors who became close friends of fitzjames's enjoyed a reputation among their friends altogether out of proportion to their public recognition. the first was george stovin venables. he was a fellow of jesus college, cambridge. he had been a first-classman in the classical tripos of , when he was placed next to w. h. thompson, afterwards master of trinity. he too was an apostle and an intimate both of tennyson and thackeray. indeed, the legend ran that it was his fist which, at charterhouse school, had disfigured thackeray's nose for life. he was tall, strikingly handsome, and of singularly dignified appearance. though recognised as an intellectual equal by many of the ablest men of his time, he chose paths in which little general reputation could be won. he made a large income at the parliamentary bar, and amused himself by contributing regularly to the 'saturday review.'[ ] stories used to be current of the extraordinary facility with which he could turn out his work, and i imagine that the style of the new periodical was determined more by his writing than by that of any of his colleagues. the political utterances were supposed to be supercilious, and were certainly not marked by any fiery enthusiasm. venables had an objection to the usual editorial 'we,' and one result was that the theories of the paper were laid down with a certain impersonal pomp, as gnomic utterances of an anonymous philosopher. i need not, however, discuss their merit. venables wrote, if i am not mistaken, some admirable literary criticisms, and claimed to have been one of the first to recognise the poetical merits of his friend tennyson, and, after a long interval, those of mr. swinburne, whom he regarded as the next legitimate heir to the throne. venables was warmly beloved by his intimates, and fitzjames through life frequently declared that he felt for him a kind of filial affection. the other saturday reviewer with whom he became specially intimate was thomas collett sandars. he was a balliol scholar and a fellow of oriel, and is known as an editor ( ) of justinian's 'institutes.' it is, i am told, a useful textbook, but the editor makes no special pretensions to original research. sandars was at one time a professor of constitutional law in the inns of court, but he was much occupied in various financial undertakings and did little to make himself known to the outside world. he was a man, however, of great literary taste, and overflowing with humorous and delightful conversation. he survived my brother by a few months only, and in the interval spoke to me with great interest of his memories of the old 'saturday review' days. he was in early days on most intimate terms with fitzjames; they discussed all manner of topics together and were for some time the two principal manufacturers of what were called 'middles'--the articles which intervened between the political leaders and the reviews of books. these became gradually one of the most characteristic facts of the paper, and, as i shall presently explain, gave an opportunity of which fitzjames was particularly glad to avail himself. the first contribution from fitzjames appeared in the second number of the paper. for a short time its successors are comparatively rare, but in the course of the following spring he begins to contribute regularly two articles a week, and before long there are sufficient indications that the editor looks upon him with favour. articles running to a length of four columns, for example, show that he was not only pouring himself out pretty freely, but that his claims upon space were not grudgingly treated. in march he says that he is 'very nervous' about his articles and doubtful of cook's approval, but in the same month he is greatly cheered by a conversation upon the subject with maine, and begins to perceive that he has really got a permanent footing. he used to tell a story which i cannot perfectly recollect, but which was to the following effect. he had felt very doubtful of his own performances; cook did not seem at first to be cordial, and possibly his attempts to 'form a style' upon the precedents of conveyancing were not altogether successful. feeling that he did not quite understand what was the style which would win approval, he resolved that, for once, he would at least write according to his own taste and give vent to his spontaneous impulses, even though it might be for the last time of asking. to his surprise, cook was delighted with his article, and henceforward he was able to write freely, without hampering himself by the attempt to satisfy uncongenial canons of journalism.[ ] however this may be, he was certainly writing both abundantly and vigorously during the following years. the 'saturday review,' like the old 'edinburgh,' was proud beyond all things of its independence. it professed a special antipathy to popular humbugs of every kind, and was by no means backward in falling foul of all its contemporaries for their various concessions to popular foibles. the writers were for the most part energetic young men, with the proper confidence in their own infallibility, and represented faithfully enough the main current of the cultivated thought of their day. the paper had occasionally to reflect the high church proclivities of its proprietor, but the articles showing that tendency were in odd contrast to the general line of argument, which more naturally expressed the contempt of the enlightened for every popular nostrum. fitzjames, in particular, found occasions for energetically setting forth his own views. he had, of course, a good many chances of dealing with legal matters. he writes periodical articles upon 'the assizes' or discusses some specially interesting case. he now and then gets a chance of advocating a codification of the laws, though he admits the necessity of various preliminary measures, and especially of a more philosophical system of legal education. he denounces the cumbrous and perplexed state of the law in general so energetically, that the arguments have to be stated as those of certain reformers with whom the paper does not openly identify itself. as became a good saturday reviewer, he fell foul of many popular idols. one regular chopping-block for irreverent reviewers was dr. cumming, who was then proving from the apocalypse that the world would come to an end in . his ignorance of greek and of geography, his audacious plagiarisms from e. b. elliott (a more learned though not a much wiser interpreter), and his insincerity, are denounced so unsparingly as to suggest some danger from the law of libel. dr. cumming, however, was wise in his generation, and wrote a letter of such courteous and dignified remonstrance that the 'saturday review' was forced to reply in corresponding terms, though declining to withdraw its charges. the whole world of contemporary journalism is arraigned for its subserviency to popular prejudices. the 'record' is lashed for its religious rancour, and the 'reasoner' for its vapid version of popular infidelity, though it is contemptuously preferred, in point of spirit, to the 'record.' fitzjames flies occasionally at higher game. the 'times,' if he is to be believed, is conspicuous for the trick of spinning empty verbiage out of vapid popular commonplaces, and, indeed, good sense and right reason appear to have withdrawn themselves almost exclusively to the congenial refuge of the 'saturday review.' there is, however, no shrine sacred to the vulgar in which the writer delights in playing the part of iconoclast so heartily as in that represented by the comic literature of the day. this sentiment, as i have said, had grown up even in eton schooldays. there was something inexpressibly repugnant to fitzjames in the tone adopted by a school of which he took dickens and douglas jerrold to be representatives. his view of the general literary question comes out oddly in the article upon 'the relation of novels to life,' contributed to the 'cambridge essays.' he has no fear of modern æsthetes before his eyes. his opinion is that life is too serious a business for tomfoolery and far too tragic for needless ostentation of sentiment. a novel should be a serious attempt by a grave observer to draw a faithful portrait of the actual facts of life. a novelist, therefore, who uses the imaginary facts, like sterne and dickens, as mere pegs on which to hang specimens of his own sensibility and facetiousness, becomes disgusting. when, he remarks, you have said of a friend 'he is dead,' all other observations become superfluous and impertinent. he, therefore, considers 'robinson crusoe' to represent the ideal novel. it is the life of a brave man meeting danger and sorrow with unflinching courage, and never bringing his tears to market. dickens somewhere says, characteristically, that 'robinson crusoe' is the only very popular work which can be read without a tear from the first page to the last. that is precisely the quality which commends it to this stern reader, who thought that in fiction as in life a man should keep his feelings under lock and key. in spite of his rather peculiar canons of taste, fitzjames was profoundly interested, even in spite of himself, in some novels constructed on very different principles. in these early articles he falls foul of 'mdme. de bovary,'[ ] from the point of view of the simple-minded moralist, but he heartily admires balzac, whom he defends against a similar charge, and in whose records of imaginary criminals--records not so famous in england at that time as they now are--he found an interest almost equal to that of the 'state trials' and palmer's case. he could also, i must add, enjoy dickens's humour as heartily as any one. he was well up in 'pickwick,' though i don't know whether he would have been equal to calverley's famous examination-paper, and he had a special liking for the 'uncommercial traveller.' but when dickens deserted his proper function fitzjames was roused to indignation. the 'little nell' sentimentalism and the long gallery of melodramatic deathbeds disgusted him, while the assaults upon the governing classes generally stirred his wrath. the satire upon individuals may be all very well in its place, but a man, he said, has no business to set up as the 'regenerator of society' because he is its most 'distinguished buffoon.' he was not picking his words, and 'buffoon' is certainly an injudicious phrase; but the sentiment which it expressed was so characteristic and deeply rooted that i must dwell a little upon its manifestation at this time. the war between the saturday reviewers and their antagonists was carried on with a frequent use of the nicknames 'prig' and 'cynic' upon one side, and 'buffoon' and 'sentimentalist' upon the other. phrases so employed soon lose all definite meaning, but it is, i think, easy to see what they meant as applied either by or to fitzjames. the 'comic writers' for him were exponents of the petty and vulgar ideals of the lower middle classes of the day. the world of dickens's novels was a portrait of the class for which dickens wrote. it was a world of smug little tradesmen of shallow and half-educated minds, with paltry ambitions, utter ignorance of history and philosophy, shrinking instinctively from all strenuous thought and resenting every attack upon the placid optimism in which it delighted to wrap itself. it had no perception of the doubts and difficulties which beset loftier minds, or any consciousness of the great drama of history in which our generation is only playing its part for the passing hour. whatever lay beyond its narrow horizon was ignored, or, if accidentally mentioned, treated with ignorant contempt. this was the spirit which revealed itself in the pæans raised over the exhibition of , accepted by the popular voice of the day as the inauguration of a millennium of peace and free trade. but all its manifestations were marked by the same narrowness. the class had once found a voice for its religious sentiments in puritanism, with stern conceptions of duty and of a divine order of the universe. but in its present mood it could see the puritan leaders represented by a wretched stiggins--a pothouse tartufe just capable of imposing upon the friends of mrs. gamp. its own religion was that kind of vapid philanthropic sentiment which calls itself undenominational; a creed of maudlin benevolence from which all the deeper and sterner elements of religious belief have been carefully purged away, and which really corresponds to the moods which mr pickwick stimulated by indulgence in milk-punch. when it came face to face with death, and sin, and suffering, it made them mere occasions for displays of sentimentalism, disgusting because such trifling with the most awful subjects shows a hopeless shallowness of nature. dickens's indulgence in deathbeds meant an effeminate delight in the 'luxury of grief,' revolting in proportion to the solemnity of the topic. this was only another side of the levity with which he treated serious political and social problems. the attitude of mind represented is that of the ordinary newspaper correspondent, who imagines that a letter to the 'times' is the ultimate remedy for all the evils to which flesh is heir. dickens's early novels, said fitzjames, represented an avatar of 'chaff'; and gave with unsurpassable vivacity the genuine fun of a thoroughbred cockney typified by sam weller. sam weller is delightful in his place; but he is simply impertinent when he fancies that his shrewd mother wit entitles him to speak with authority upon great questions of constitutional reform and national policy. dickens's later assaults upon the 'circumlocution office,' the court of chancery, were signal instances of this impatient, irritable, and effeminate levity. fitzjames elaborated this view in an article upon 'the license of novelists' which appeared in the 'edinburgh review' for july . he fell foul of 'little dorrit'; but the chief part of the article referred to charles reade's 'never too late to mend.' that novel was briefly a travesty of a recent case in which a prisoner had committed suicide in consequence, as was suggested, of ill-treatment by the authorities of the gaol. the governor had been tried and punished in consequence. fitzjames gives the actual facts to show how reade had allowed himself, as a writer of fiction, to exaggerate and distort them, and had at the same time taken the airs of an historian of facts and bragged of his resolution to brand all judges who should dare to follow the precedent which he denounced. this article, i may notice, included an injudicious reference to the case of the post office and rowland hill, which was not, i believe, due to fitzjames himself, and which enabled dickens to reply with some effect in 'household words.' dickens's attacks upon the 'circumlocution office' and its like were not altogether inconsistent with some opinions upon the english system of government to which, as i shall have to show, fitzjames himself gave forcible expression in after years. they started, however, from a very different point of view, and for the present he criticised both dickens and some of the similar denunciations contained in carlyle's 'past and present,' and 'latter-day pamphlets.' the assault upon the 'circumlocution office' was, i doubt not, especially offensive because 'barnacle tite,' and the effete aristocrats who are satirised in 'little dorrit,' stood for representatives of sir james stephen and his best friends. in fact, i think, dickens took the view natural to the popular mind, which always embodies a grievance in a concrete image of a wicked and contemptible oppressor intending all the evils which result from his office. a more interesting and appropriate topic for art of a serious kind would be the problem presented by a body of men of the highest ability and integrity who are yet doomed to work a cumbrous and inadequate system. but the popular reformer, to whom everything seems easy and obvious, explains all abuses by attributing them to the deliberate intention of particular fools and knaves. this indicates fitzjames's position at the time. he was fully conscious of the administrative abuses assailed, and was as ardent on law reform as became a disciple of bentham. but he could not accept the support of men who thought that judicious reform could be suggested by rough caricatures, and that all difficulties could be appreciated by the first petty tradesmen who encountered an incidental grievance or by such summary remedies as were to be suggested off-hand by anonymous correspondents. the levity, the ignorance, the hasty and superficial irritability of these reformers, their enormous conceit and imperturbable self-complacency revolted him. english life he declared in the 'edinburgh review' is 'too active, english spheres of action too wide, english freedom too deeply rooted, to be endangered by a set of bacchanals drunk with green tea and not protected by petticoats. boundless luxury,' he thought, 'and thirst for excitement, have raised a set of writers who show a strong sympathy for all that is most opposite to the very foundations of english life.' the 'saturday review' articles enlarge upon the same theme. he will not accept legislators whose favourite costume is the cap and bells, or admit that men who 'can make silly women cry can, therefore, dictate principles of law and government.' the defects of our system are due to profound historical causes. 'freedom and law and established rules have their difficulties,' not perceptible to 'feminine, irritable, noisy minds, always clamouring and shrieking for protection and guidance.' the end to which dickens would really drive us would be 'pure despotism. no debates to worry effeminate understandings, no laws to prevent judges from deciding according to their own inclination, no forms to prevent officials from dealing with their neighbours as so many parcels of ticketed goods.'[ ] these utterances show the combination of the old puritanic leaven, to which all trifling and levity is hateful, and the strong patriotic sentiment, to which dickens in one direction and the politics of cobden and bright in the other, appeared as different manifestations of a paltry and narrow indifference to all the great historic aims of the national life. now, and to some degree always, he strongly sympathised with the patriotism represented by macaulay. i need only notice at present certain theological implications. the positivists were beginning to make themselves known, and, for various reasons, were anything but attractive to him. he denounces a manifesto from mr. congreve in january , and again from the patriotic side. mr. congreve had suggested, among other things, the cession of gibraltar to spain, in accordance with his view of international duties. the english nation, exclaims fitzjames, 'cannot be weighed and measured, and ticketed, and classified, by a narrow understanding and a cold heart.' the 'honest and noble passions of a single nation would blow all mr. congreve's schemes to atoms like so many cobwebs. england will never be argued out of gibraltar except by the _ultima ratio_.' these doctrines, he thinks, are the fruits of abandoning a belief in theology. 'we, too, have a positive philosophy, and its fundamental maxim is that it is wise for men and nations to mind their own business, and do their own duty, and leave the results to god.' the argument seems to be rather questionable; and perhaps one which follows is not altogether satisfactory, though both are characteristic. the indian mutiny had moved him deeply, and, in an article called 'deus ultionum'[ ] he applies one of his doctrines to this case. he holds that a desire for revenge upon the perpetrators of the atrocities (of which, i may observe, exaggerated accounts were then accepted) was perfectly legitimate. revenge, he urges, is an essential part of the true theory of punishment--a position which he defends by the authority of bishop butler. the only alternative is the theory of simple 'deterrence,' which, as he holds, excludes every moral element of punishment, and supposes man to be a mere 'bag of appetites.' i have dwelt upon these utterances, not, of course, to consider their value, or as representing his permanent conviction, but simply as illustrating a very deeply rooted sentiment. his work in the 'saturday review' did not exhaust all his literary activity. between and he contributed a few articles to the 'edinburgh review,' of which i have already mentioned one. he very naturally turned to the organ in which his father's best-known writings had appeared, and which still enjoyed a high reputation. i believe that the 'edinburgh review' still acted upon the precedent set by jeffrey, according to which a contributor, especially, of course, a young contributor, was regarded as supplying raw material which might be rather arbitrarily altered by the editor. i express no opinion as to the wisdom of that course; but i think that, as a matter of fact, it alienated this contributor in particular. meanwhile, the father in whose steps he was treading was constantly giving him advice or taking counsel with him during these years. he praised warmly, but with discrimination. the first article in the 'edinburgh review' was upon cavallier, the leader of the protestant revolt in the cevennes. the subject, suggested, i fancy, by a trip to the country taken in , was selected less with a view to his own knowledge or aptitudes than by the natural impulse of a young writer to follow the models accepted in his organ. he had selected a picturesque bit of history, capable of treatment after the manner of macaulay. 'i have read it,' says my father, in words meant to be read to fitzjames, 'with the pleasure which it always gives me to read his vigorous sense, clear and manly style, right-minded and substantially kind-hearted writings. my respect for his understanding has been for a long time steadily increasing, and is very unlikely to be ever diminished.... but i shall best prove that respect by saying plainly that i do not like this paper as well as those in which he writes argumentatively, speculatively, and from the resources of his own mind. his power consists in reasoning, in the exposition of truth and fallacies. i will not say, for i do not know, that he wants the art of story-telling, but, taking this as a specimen, it seems to me deficient in the great art of linking together a series of facts in such a manner that the connection between them shall be at once perceptible to the most ignorant and inattentive reader, and shall take easy and irresistible possession of the mind. that is macaulay's pre-eminent gift.' he goes on to apply this in detail. it may be useful to point out faults now; though his criticisms upon anything which fitzjames may publish in shall be 'all saccharine.' in a letter of april , , he shows an alarm which was certainly not unnatural. fitzjames has been writing in the 'saturday review,' in 'fraser,' the 'national review,' and elsewhere, besides having on hand a projected law-book. is he not undertaking too much? 'no variety of intemperance is more evidently doomed to work out its own ill-reward than that which is practised by a bookseller's drudge of the higher order.' he appeals to various precedents, such as southey, whose brain gave way under the pressure. editors and publishers soon find out the man who is dependent upon them for support, and 'since the abolition of west india slavery the world has known no more severe servitude than his.' 'can a man of your age,' he asks, 'have the accumulated capital of knowledge necessary to stand such a periodical expenditure?' 'what i have read of your writing seems to me to be singularly unequal. at times it is excellent in style and in conception, and evidently flowing from springs pure, copious, and active, and giving promise of great future eminence. at other times the marks of haste, of exhaustion, and being run out of breath, are perceptible to an eye so sensitive as mine is on this subject. i see no reason why you should not become a great writer and one of the teachers of your country-folk, if you will resolve never to write except from a full mind--which is just as essential to literary success as it is to success in singing never to sing but out of well inflated lungs.' he ends by the practical application of an entreaty to make use of the family purse. the reference to a law-book is explained by a correspondence which is going on at the same period in regard to various literary proposals. my father sketches several plans; he disapproves of a technical treatise, in which he thinks that fitzjames would be at a disadvantage from the inevitable comparison with his uncle, the serjeant; but he advises some kind of legal history, resembling hallam's history inverted. in the proposed book the legal aspect should be in the foreground and the political in the background. he expounds at length a scheme which has not been executed, and which would, i think, be exceedingly valuable. it was suggested by his own lectures on french history, though it must be 'six times longer and sixty times more exact and complete.' it is to be a history of the english administrative system from feudal times downwards, giving an account of the development of the machinery for justice, revenue, ecclesiastical affairs, war, trade, colonies, police, and so forth. each chapter should expound the actual state of things, and trace the historical development of one department, and would involve a variety of parenthetical inquiries, which should be carefully subordinated to the main purpose. various hints are given as to the course of investigation that will be necessary. fitzjames began to work upon this scheme; and his opening chapters fill two or three large manuscript books. the plan was abandoned for one more suitable to his powers. meanwhile, the literary activity which had alarmed his father was not abated, and, indeed, before very long, was increased. iv. education commission and recordership another employment for a time gave him work, outside both of his professional and his literary career, though it remained something of a parenthesis. on june , , a royal commission was appointed to investigate the state of popular education. the duke of newcastle was chairman and the other members were sir j. t. coleridge, w. c. lake (afterwards dean of durham), professor goldwin smith, nassau senior, edward miall, and the rev. william rogers, now rector of st. botolph, bishopsgate.[ ] the duke of newcastle was, as i have said, the patron of the editor of the 'saturday review,' and perhaps had some interest in that adventure as in the 'morning chronicle.' he probably knew of my brother through this connection, and he now proposed him, says mr. rogers,[ ] as secretary to the commission. the commission began by sending out assistant-commissioners to the selected districts: it afterwards examined a number of experts in educational matters; it sent mark pattison and matthew arnold to report upon the systems in germany, france, and switzerland; it examined all the previous reports presented to the committee of the privy council; it collected a quantity of information from the various societies, from the managers of government, naval and military schools, from schools for paupers and vagrants, and from reformatories; it made an investigation into the state of the charitable endowments, and it compiled a number of statistical tables setting forth the results obtained. 'the man to whom more than to anyone else the country owed a debt of gratitude,' says mr. rogers, 'was fitzjames stephen.... though under thirty, he brought to the task a combination of talents rarely found in any one individual. to his keen insight, wide grasp, accurately balanced judgment, and marvellous aptitude for details, was due much of the success with which we were able to lay down the future lines of popular education. i have often thought it strange that this recognition has not in time past been more publicly made.' the commission lasted till june , . it published six fat volumes of reports, which are of great value to the historian of education. the progress made in subsequent years gives an appearance of backwardness to what was really a great advance upon previous opinion. the plan of compulsory or free education was summarily dismissed; and a minority of the commission were of opinion that all state aid should be gradually withdrawn. the majority, however, decided that the system rather required development, although the aim was rather to stimulate voluntary effort than to substitute a state system. they thought that the actual number of children at school was not unsatisfactory, and that the desire for education was very widely spread. many of the schools, however, were all but worthless, and the great aim should be to improve their quality and secure a satisfactory teaching of elementary subjects. they proposed that provision should be made for allowing the formation of boards supported by rates in towns and counties; and that the national grant should be distributed on better principles, so as to secure more efficient results. as mr. rogers points out, the 'revised code' soon afterwards issued by mr. lowe, and the principles adopted in mr. forster's act a few years later, carried out, though they greatly extended, the proposals of the commission. it is impossible to say precisely what share my brother had in these results. i find, however, from a correspondence with his old friend nassau senior, that he was an advocate of the view finally adopted by the commission. he also prepared the report, of course under the direction of his superiors, and the labour thrown upon him during the three years of this occupation must have been considerable. he was, however, writing with his old regularity for the 'saturday review,' and was attending sessions and circuits with slowly improving prospects. in a letter written at this time i find him remarking that he is at work all the day and half the night. this is in reference to a case with which he was much occupied during - , and which is characteristic enough to deserve a few words. his articles in the 'saturday review' show the keen interest to which he was aroused by any touch of heroism. he is enthusiastic about arctic adventure, and a warm review of kane's narrative of the american expedition in search of franklin brought him the friendship of the author, who died during a visit to england soon afterwards. another arctic explorer was captain parker snow, who sailed in the search expedition sent out by lady franklin in . the place in which the remains were afterwards discovered had been revealed to him in a dream; and but for the refusal of his superior officer to proceed he would have reached the spot. in the year captain snow was sent out by the patagonian missionary society to the place where the unfortunate allen gardiner had been starved to death. his crew consisted entirely of 'godly' sailors, who, he says, showed their principles by finding religious reasons for disobeying his orders. finally captain snow was dismissed by an agent of the society, and, as he maintained, illegally. he published an account of his explorations in tierra del fuego, which fitzjames reviewed enthusiastically. it was long, he said, since he had seen a 'heartier, more genuine, nobler book'; he was tempted to think that captain marryat and kingsley had 'put their heads together to produce a sort of missionary "peter simple."' this led to a long correspondence with captain snow, who was trying to enforce his claims against the missionary society. fitzjames strongly advised him against legal proceedings, which would, he thought, be fruitless, although captain snow had a strong moral claim upon the society. captain snow, however, was not easy to advise, and fitzjames, thinking him ill-treated, obtained help from several friends and subscribed himself to the captain's support. after long negotiations the case finally came into court in december , when fitzjames consented to appear as the captain's counsel, although he had foreseen the unsuccessful result. he continued to do what he could for the sufferer, to whose honourable, though injudicious conduct he bears a strong testimony, and long afterwards ( ) obtained for him a pension of _l._ from the civil list, which is, i fear, captain snow's only support in his old age.[ ] in august fitzjames was made recorder of newark. the place, which he held till he went to india in , was worth only _l._ a year; but was, as he said, a 'feather in his cap,' and a proof of his having gained a certain footing upon his circuit. it gave him his first experience as a judge, and i may mention a little incident of one of his earliest appearances in that character. he had to sentence a criminal to penal servitude, when the man's wife began to scream; he was touched by her grief, and left a small sum with the mayor to be given to her without mention of his name. the place was, it seems, practically the gift of the duke of newcastle; and bethell, then attorney-general, wrote to him in favour of fitzjames's appointment. i am not aware how bethell came to have any knowledge of him; but fitzjames had formed a very high opinion of the great lawyer's merits. he showed it when bethell, then lord westbury, was accused of misconduct as lord chancellor. he thought that the accusations, if not entirely unfounded, were grossly exaggerated for party purposes. he could not persuade the 'pall mall gazette,' for which he was then writing, to take this view; but upon westbury's resignation he obtained the insertion of a very cordial eulogy upon the ex-chancellor's merits as a law reformer. the appointment to the recordership was one of the last pieces of intelligence to give pleasure to my father. fitzjames had seen much of him during the last year. he had spent some weeks with him at dorking in the summer of , and had taken a little expedition with him in the spring of . my father injured himself by a walk on his seventieth birthday (january , ), and his health afterwards showed symptoms of decline. in the autumn he was advised to go to homburg; and thence, on august , he wrote his last letter, criticising a draft of a report which fitzjames was preparing for the education commission, and suggesting a few sentences which would, he thinks, give greater clearness and emphasis to the main points. immediately afterwards serious symptoms appeared, due, i believe, to the old break-down of . my father was anxious to return, and started homewards with my mother and sister, who had accompanied him. they got as far as coblenz, where they were joined by fitzjames, who had set out upon hearing the news. he was just in time to see his father alive. sir james stephen died september , , an hour or two after his son's arrival. he was buried at kensal green, where his tombstone bears the inscription: 'be strong and of a good courage; be not afraid, neither be thou dismayed: for the lord thy god is with thee whithersoever thou goest.' the words (from joshua i. ) were chosen because a friend remembered the emphasis with which my father had once dwelt upon them at his family prayers. with the opening words of the same passage my brother concluded the book which expressed his strongest convictions,[ ] and summed up his practical doctrine of life. what he felt at the time may be inferred from a striking essay upon the 'wealth of nature,' which he contributed to the 'saturday review' of september , .[ ] it may be considered as a sermon upon the text of gray's reflections in the 'elegy' upon the 'hearts once pregnant with celestial fire' which lie forgotten in the country churchyard. what a vast work has been done by the unknown! what must have been the aggregate ability of those who, in less than thirty generations, have changed the england of king alfred into the england of queen victoria! and yet how few are remembered! how many actions even, which would be gladly remembered, are constantly forgotten? 'the indian empire,' he says characteristically, 'is the most marvellous proof of this that the world can supply. a man died not long ago who, at twenty-five years of age, with no previous training, was set to govern a kingdom with absolute power, and who did govern it so wisely and firmly that he literally changed a wilderness into a fruitful land. probably no one who reads these lines will guess to whom they allude.' i can, however, say that they allude to james grant duff ( - ), author of the 'history of the mahrattas,' and father of his friend sir mountstuart. fitzjames had visited the father in scotland, and greatly admired him. his early career as resident of sattara sufficiently corresponds to this statement. it is well, as fitzjames maintained, that things should be as they are. fame generally injures a man's simplicity; and this 'great reserve fund of ability' acts beneficially upon society at large, and upon the few conspicuous men who are conscious of their debt to their unknown colleagues. it would be a misfortune, therefore, if society affected to class people according to their merits; for, as it is, no one need be ashamed of an obscurity which proves nothing against him. we have the satisfaction of perceiving everywhere traces of skill and power, proving irrefragably that there are among us men 'who ennoble nearly every walk of life, and would have ennobled any.' a similar tone appears in the short life of his father, written in the following year. true success in life, he says, is not measured by general reputation. sir james stephen's family will be satisfied by establishing the fact that he did his duty. it was an instance of 'prosperity' that his obscurity 'protected him, and will no doubt effectually protect his memory against unjust censure and ignorant praise.' the deaths of two old friends of his father's and his own marked the end of the year. on december , , he hears of the death of john austin, and proposes to attend the funeral, 'as there were few men for whom i had more respect or who deserved it more.' his admiration for austin was at this time at its warmest.[ ] macaulay died on december , ; and on january , , fitzjames writes from derby, where he has been all night composing a 'laudation' of the historian for the 'saturday review.'[ ] it is . a.m., and he has just washed and dressed, as it is too late to go to bed before court. 'tom macaulay,' as has been seen, had been a model held up to him from infancy, and to the last retained a strong hold upon his affectionate remembrance. fitzjames was now completing his thirty-first year, and was emerging into a more independent position. he was in the full flow of energetic and various work, which was to continue with hardly an intermission until strength began to fail. at this period he was employed in the education commission, which for some time was meeting every day; he was writing for the 'saturday review' and elsewhere; he was also beginning to write an independent book; and he was attending his circuit and sessions regularly and gradually improving his position.[ ] the story thus becomes rather complicated. i will first say a little of his professional work during the next few years, and i will then mention three books, which appeared from to , and were his first independent publications; they will suggest what has to be said of his main lines of thought and work. v. progress at the bar his practice at the bar was improving, though not very steadily or rapidly. 'those cases, like snow's or bacon's,' he observes (dec. , ), 'do me hardly any good.... i am making a reputation which would be very useful for an older man who already had business, but is to me glory, not gain. i am like a man who has good expectations and little or no income.' still his position is better: he has made _l._ this year against _l._ the year before; he is beginning to 'take root,' especially at sessions; and he 'thoroughly delights in his profession.' in march he reports some high compliments from mr. justice willes in consequence of a good speech; and has had inquiries made about him by attornies. but the attornies, he thinks, will have forgotten him before next circuit. there never was a longer hill than that which barristers have to climb; but 'it is neither a steep nor an unpleasant hill.' in july he was appointed to a revising barristership in north derbyshire by chief baron pollock, and was presented with a red bag by his friend kenneth macaulay, now leader of the circuit. he makes _l._ on circuit, and remarks that this is considered to mark a kind of turning-point. in things improve again. in july he is employed in three cases of which two were 'glorious triumphs,' and the third, the 'great grimsby riot,' which is 'at present a desperate battle,' is the biggest case he has yet had on circuit. the circuit turns out to be his most profitable, so far. on october he reports that he has got pretty well 'to the top of the little hill' of sessions, and is beginning, though cautiously, to think of giving them up and to look forward to a silk gown. in he has 'a wonderful circuit' (march ) above _l._, owing partly, it would seem, to macaulay's absence, and too good to be repeated. in the summer, however, he has the first circuit in which there has been no improvement. on october he is for once out of spirits. he has had 'miserable luck,' though he thinks in his conscience that it has been due not to his own fault, but to the 'stupidity of juries.' 'there is only one thing,' he says, 'which supports me in this, the belief that god orders all things, and that therefore we can be content and ought to take events as they come, be they small or great. whenever i turn my thoughts that way it certainly does not seem to me very important whether in this little bit of a life i can accomplish all that i wish--so long as i try to do my best. i have often thought that perhaps one's life may be but a sort of school, in which one learns lessons for a better and larger world, and if so, i can quite understand that the best boys do not get the highest prizes, and that no boy, good or bad, ought to be unhappy about his prizes. there are things i long to do; books i long to write; thoughts and schemes that float before me, looking so near and clear, and yet being, as i feel, so indistinct or distant that i shall never make anything of them. small ties and little rushings of the mind, briefs and magazine articles, and their like, will clog my wheels day after day and year after year. yet i cannot altogether blame myself. looking back on my life, i cannot seriously regret any of the principal steps i have taken in it. still i do feel more or less disquieted or perturbed--i cannot help it.' some uncomfortable thoughts could hardly fail to intrude at times when the compliments which he received from the highest authorities failed to be backed by a corresponding recognition from attornies; and at times, i suspect, his spirits were depressed by over-work, of which he was slow to acknowledge the possibility. to work, indeed, he turned for one chief consolation. he refers incidentally to various significant performances. 'last night,' he writes from derby, april , , 'i finished a middle at two; and to-day i finished "superstition"' (an article in the 'cornhill') 'in a six hours' sitting, during which i had written thirty-two ms. pages straight off. i don't feel at all the worse for it.' on nov. following he observes that he is 'in first-rate health.' he wrote all night from six till three, got up at . , and walked thirty-one miles; after which he felt 'perfectly fresh and well.' on jan. , , he has a long drive in steady rain, sits up 'laughing and talking' till one; writes a review till . , and next day writes another article in court. on july , , he finishes an article upon newman at a.m., having written as much as would fill sixteen pages of the 'edinburgh review'--the longest day's work he had ever done, and feels perfectly well. on march , , he gets up at six, writes an article before breakfast, is in court all day, and has a consultation at nine. early rising was, i think, his commonest plan for encountering a pressure of work; but he had an extraordinary facility for setting to work at a moment's notice. he had a power of eating and sleeping at any time, which he found, as he says, highly convenient. he was equally ready to write before breakfast, or while other people were talking and speechifying all round him in court, or when sitting up all night. and, like a strong man, he rejoiced in his strength, perhaps a little too unreservedly. if he now and then confesses to weariness, it never seemed to be more than a temporary feeling. of the cases in which he was engaged at this period i need only mention two--the case of dr. rowland williams, of which i shall speak directly in connection with his published 'defence'; and the case of a man who was convicted of murder at warwick in december . the fellow had cut the throat of a girl who had jilted him. the facts were indisputable, and the only possible defence was insanity. kenneth macaulay and fitzjames were counsel for the defence, but failed, and, as fitzjames thought, rightly failed, to make good their case. he was, however, deeply moved by the whole affair--the most dramatic, he says, in which he had been engaged. the convict's family were respectable people, and behaved admirably. 'the poor mother sat by me in court and said, "i feel as if i could cling to anyone who could help him," and she put her hand on my arm and held it so that i could feel every beat of her pulse. her fingers clutched me every time her heart beat. the daughters, too, were dreadfully moved, but behaved with the greatest natural dignity and calmness.' after the conviction fitzjames felt that the man deserved to be hanged; but felt also bound to help the father in his attempts to get the sentence commuted. he could not himself petition, but he did his best to advise the unfortunate parents. he used to relate that the murderer had written an account of the crime, which it was proposed to produce as a proof of insanity. to fitzjames it seemed to be a proof only of cold-blooded malignity which would insure the execution of the sentence. he was tormented by the conflict between his compassion and his sense of justice. ultimately the murderer was reprieved on the ground that he had gone mad after the sentence. fitzjames had then, he says, an uncomfortable feeling as if he were partly responsible for the blood of the murdered girl. the criminal soon afterwards committed suicide, and so finished the affair. vi. 'essays by a barrister' i turn now to the literary work which filled every available interstice of time. in the summer of fitzjames published 'essays by a barrister' (reprinted from the 'saturday review'). the essays had appeared in that paper between the end of and the beginning of . from february , , to february , , he did not write in the 'saturday review.' a secession had taken place, the causes of which i do not precisely know. i believe that the editor wished to put restrictions, which some of his contributors, including fitzjames, resented, upon the services to be rendered by them to other periodicals. the breach was eventually closed without leaving any ill-feeling behind it. fitzjames at first felt the relief of not having to write, and resolved to devote himself more exclusively to his profession. but before long he was as hard at work as ever. during he wrote a good many articles for the 'london review,' which was started as a rival of the 'saturday review.' he found a more permanent outlet for his literary energies in the 'cornhill magazine.' it was started by messrs. smith & elder at the beginning of with thackeray for editor; and, together with 'macmillan's magazine'--its senior by a month--marked a new development of periodical literature. fitzjames contributed a couple of articles at the end of ; and during , , and , wrote eight or nine in a year. these articles (which were never reprinted) continue the vein opened in the 'essays by a barrister.' his connection with the 'magazine' led to very friendly relations with thackeray, to whose daughters he afterwards came to hold the relation of an affectionate brother. it also led to a connection with mr. george smith, of smith, elder & co., which was to be soon of much importance. the articles represented the development of the 'middles,' which he considered to be the speciality of himself and his friend sandars. the middle, originally an article upon some not strictly political topic, had grown in their hands into a kind of lay sermon. for such literature the british public has shown a considerable avidity ever since the days of addison. in spite of occasional disavowals, it really loves a sermon, and is glad to hear preachers who are not bound by the proprieties of the religious pulpit. some essayists, like johnson, have been as solemn as the true clerical performer, and some have diverged into the humorous with charles lamb, or the cynical with hazlitt. at this period the most popular of the lay preachers was probably sir arthur helps, who provided the kind of material--genuine thought set forth with real literary skill and combined with much popular sentiment--which served to convince his readers that they were intelligent and amiable people. the 'saturday reviewers,' in their quality of 'cynics,' could not go so far in the direction of the popular taste; and their bent was rather to expose than to endorse some of the commonplaces which are dear to the intelligent reader. probably it was a sense of this peculiarity which made fitzjames remark when his book appeared that he would bet that it would never reach a second edition. he would, i am sorry to say, have won his bet; and yet i know that the 'essays by a barrister,' though never widely circulated, have been highly valued by a small circle of readers. the explanation of their fate is not, i think, hard to give. they have, i think, really great merits. they contain more real thought than most books of the kind; they are often very forcibly expressed; and they unmistakably reflect very genuine and very strong convictions. unluckily, they maintain just the kind of views which the congregation most easily gathered round such a pulpit is very much inclined to regard with suspicion or with actual dislike. an essay, for example, upon 'doing good' is in fact a recast of the paper which decided his choice of a profession. it is intended to show that philanthropists of the exeter hall variety are apt to claim a monopoly of 'doing good' which does not belong to them, and are inclined to be conceited in consequence. the ordinary pursuits are equally necessary and useful. the stockbroker and the publican are doing good in the sense of being 'useful' as much as the most zealous 'clergyman or sister of mercy.' medicine does good, but the butcher and the baker are still more necessary than the doctor. we could get on without schools or hospitals, but not without the loom and the plough. the philanthropist, therefore, must not despise the man who does a duty even more essential than those generally called benevolent, though making less demand on the 'kindly and gentle parts of our nature.' a man should choose his post according to his character. it is not a duty to have warm feelings, though it may be a misfortune not to have them; and a 'cold, stern man' who should try to warm up his feelings would either be cruelly mortified or become an intolerable hypocrite. it is a gross injustice to such a man, who does his duty in the station fittest to his powers, when he is called by implication selfish and indifferent to the public good. 'the injustice, however, is one which does little harm to those who suffer under it, for they are a thick-skinned and long-enduring generation, whose comfort is not much affected one way or the other by the opinion of others.' this, like fitzjames's other bits of self-portraiture, is not to be accepted too literally. so taken, it confounds, i think, coldness and harshness with a very different quality, a want of quick and versatile sympathy, and 'thickness of skin' with the pride which would not admit, even to itself, any tendency to over-sensibility. but it represents more or less the tone which came naturally to him, and explains the want of corresponding acceptability to his readers. he denounces the quality for which 'geniality' had become the accepted nickname. the geniality, whether of dickens or kingsley, was often, he thought, disgusting and offensive. it gives a false view of life. 'enjoyment forms a small and unimportant element in the life of most men.' life, he thinks, is 'satisfactory' but 'enjoyment casual and transitory.' 'geniality,' therefore, should be only an occasional element; habitually indulged and artificially introduced, it becomes as nauseous as sweetmeats mixed with bread and cheese. to the more serious person, much of the popular literature of the day suggests solomon's words: 'i said of laughter, it is mad; and of mirth what doeth it?' so the talk of progress seems to him to express the ideal of a moral 'lubberland.' six thousand years of trial and suffering, according to these prophets, are to result in a 'perpetual succession of comfortable shopkeepers.' the supposition is 'so revolting to the moral sense that it would be difficult to reconcile it with any belief at all in a divine providence.' you are beginning, he declares after carlyle's account of robespierre, 'to be a bore with your nineteenth century.' our life, he says elsewhere ('christian optimism'), is like 'standing on a narrow strip of shore, waiting till the tide which has washed away hundreds of millions of our fellows shall wash us away also into a country of which there are no charts and from which there is no return. what little we have reason to believe about that unseen world is that it exists, that it contains extremes of good and evil, awful and mysterious beyond human conception, and that these tremendous possibilities are connected with our conduct here. it is surely wiser and more manly to walk silently by the shore of that silent sea, than to boast with puerile exultation over the little sand castles which we have employed our short leisure in building up. life can never be matter of exultation, nor can the progress of arts and sciences ever fill the heart of a man who has a heart to be filled.' the value of all human labours is that of schoolboys' lessons, 'worth nothing at all except as a task and a discipline.' life and death are greater and older than steam engines and cotton mills. 'why mankind was created at all, why we continue to exist, what has become of all that vast multitude which has passed, with more or less sin and misery, through this mysterious earth, and what will become of those vaster multitudes which are treading and will tread the same wonderful path?--these are the great insoluble problems which ought to be seldom mentioned but never forgotten. strange as it may appear to popular lecturers, they do make it seem rather unimportant whether, on an average, there is a little more or less good nature, a little more or less comfort, and a little more or less knowledge in the world.' such thoughts were indeed often with him, though seldom uttered. the death of a commonplace barrister about this time makes him remark in a letter that the sudden contact with the end of one's journey is not unwelcome. the thought that the man went straight from the george iv. hotel to 'a world of ineffable mysteries is one of the strangest that can be conceived.' i have quoted enough from the essays to indicate the most characteristic vein of thought. they might have been more popular had he either sympathised more fully with popular sentiment or given fuller and more frequent expression to his antipathy. but, it is only at times that he cares to lay bare his strongest convictions; and the ordinary reader finds himself in company with a stern, proud man who obviously thinks him foolish but scarcely worth denouncing for his folly. sturdy common sense combined with a proud reserve which only yields at rare intervals, and then, as it were, under protest, to the expression of deeper feeling, does not give the popular tone. some of the 'cornhill' articles were well received, especially the first, upon 'luxury' (september ), which is not, as such a title would now suggest, concerned with socialism, but is another variation upon the theme of the pettiness of modern ideals and the effeminate idolatry of the comfortable. these articles deal with many other topics: with the legal questions in which he is always interested, such as 'the morality of advocacy' and with the theory of evidence, with various popular commonplaces about moral and social problems, with the 'spirit-rapping' then popular, with various speculations about history, and with some of the books in which he was always interested. one is the 'laudation' of macaulay which i have noticed, and he criticises carlyle and speaks with warm respect of hallam. here and there, too, are certain philosophical speculations, of which i need only say that they show his thorough adherence to the principles of mill's 'logic' he is always on the look-out for the 'intuitionist' or the believer in 'innate ideas,' the bugbears of the mill school. in an article upon mansel's 'metaphysics' he endeavours to show that even the 'necessary truths' of mathematics are mere statements of uniform experience, which may differ in another world. this argument was adopted by mill in his 'examination of sir w. hamilton's philosophy.'[ ] i cannot say that i think it a fortunate suggestion; and i only notice it as an indication of fitzjames's intellectual position. the 'cornhill' articles had to be written under the moral code proper to a popular magazine, the first commandment of which is 'thou shalt not shock a young lady.' fitzjames felt this rather uncomfortably, and he was not altogether displeased, as he clearly had no right to be surprised, when mr. george smith, the proprietor of the magazine, suggested to him in december the superior merits of 'light and amusing' articles, which, says fitzjames, are 'just those which give me most trouble and teach me least.' they are 'wretched' things to occupy a man of 'any sort of mind.' mr. smith, as he says a year afterwards, is the 'kindest and most liberal of masters,' but he feels the drudgery of such work. reading bossuet (february , ), he observes that the works are so 'powerful and magnificent in their way' that they make me feel a sort of hatred for 'the trumpery that i pass my time in manufacturing.' it makes him 'sad to read great books, and it is almost equally sad not to read them.' he feels 'tied by the leg' and longs to write something worth writing; he believes that he might do more by a better economy of his time; but 'it is hopeless to try to write eight hours a day.' he feels, too (july , ), that the great bulk of a barrister's work is 'poor stuff.' it is a 'good vigorous trade' which braces 'the moral and intellectual muscles' but he wishes for more. no doubt he was tired, for he records for once enjoying a day of thorough idleness a month later, lying on the grass at a cricket match, and talking of prize-fighting. he is much impressed soon afterwards by a sermon on the text, 'i will give you rest'; but his spirits are rapidly reviving. in march be says, 'i cannot tell you how happy and prosperous i feel on the whole.... i have never felt so well occupied and so thoroughly fearless and happy on circuit before.' this was partly due to improvement in other respects. circuits were improving. he had given up the 'cornhill,' and was finding an outlet in 'fraser' for much that had been filling his mind. other prospects were opening of which i shall soon have to speak. vii. defence of dr. williams i go back to another book which was closely connected with his professional prospects and his intellectual interests. his 'defence of dr. rowland williams' appeared in the spring of , and represented some very energetic and to him intensely interesting work. certain clergymen of the church of england had discovered--what had been known to other people for several generations--that there were mistakes in the bible. they inferred that it was desirable to open their minds to free criticism, and that the bible, as jowett said, should be read 'like any other book.' the result was the publication in of 'essays and reviews,' which after a time created a turmoil which seems a little astonishing to the present generation. orthodox divines have, indeed, adopted many of the conclusions which startled their predecessors, though it remains to be seen what will be the results of the new wine in the old bottles. the orthodoxy of , at any rate, was scandalised, and tried, as usual, to expel the obnoxious element from the church. the trial of dr. rowland williams in the arches court of canterbury in december was one result of the agitation, and fitzjames appeared as his counsel. he had long been familiar with the writings of the school which was being assailed. in he is reading jowett's 'commentary on the epistle to the romans,' and calls it a 'kind, gentle christian book'--far more orthodox than he can himself pretend to be. characteristically he is puzzled and made 'unhappy' by finding that a good and honest man claims and 'actually seems to possess a knowledge of the relations between god and man,' on the strength of certain sensibilities which place a gulf between him and his neighbours. he probably met jowett in some of his visits to henry smith at oxford. at the end of and afterwards he speaks of meetings with jowett and stanley, for both of whom he expresses a very warm regard. during the latter part of he was hard at work upon the preparation of his speech on behalf of dr. williams, which was published soon after the trial. without dwelling at any length upon the particular points involved, i may say that the main issue was very simple. the principal charge against dr. williams was that he had denied the inspiration of the bible in the sense in which 'inspiration' was understood by his prosecutors. he had in particular denied that jonah and daniel were the authors of the books which pass under their names, and he had disputed the canonicity of the epistle to the hebrews. fitzjames lays down as his first principle that the question is purely legal; that is, that it is a question, not whether dr. williams's doctrines were true, but whether they were such as were forbidden by law to be uttered by a clergyman. secondly, the law was to be found in the thirty-nine articles, the rubrics, and formularies, not, as the prosecutors alleged, in passages from scripture read in the services--a proposition which would introduce the whole problem of truth or error. thirdly, he urged, the articles had designedly left it open to clergymen to hold that the bible 'contains' but does not 'constitute' the revelation which must no doubt be regarded as divine. in this respect the articles are contrasted with the westminster confession, which affirms explicitly the absolute and ultimate authority of the bible. no one on that assumption may go behind the sacred record; and no question can be raised as to the validity of anything once admitted to form part of the sacred volume. the anglican clergy, on the contrary, are at liberty to apply criticism freely in order to discriminate between that part of the bible which is and that which is not part of divine revelation. finally, a long series of authorities from hooker to bishop hampden is adduced to prove that, in point of fact, our most learned divines had constantly taken advantage of this liberty; and established, so to speak, a right of way to all the results of criticism. of course, as fitzjames points out, the enormous increase of knowledge, critical and scientific, had led to very different results in the later period. but he argues that the principle was identical, and that it was therefore impossible to draw any line which should condemn dr. williams for rejecting whole books, or denying the existence of almost any genuine predictions in the hebrew prophecies without condemning the more trifling concessions of the same kind made by hooker or chillingworth. if i may remove one stone from the building, am i not at liberty to remove any stone which proves to be superfluous? the argument, though forcible and learned, was not in the first instance quite successful. dr. williams was convicted upon two counts; though he afterwards ( ) succeeded in obtaining an acquittal upon them also on an appeal to the committee of the privy council. lord westbury gave judgment, and, as was said, deprived the clergy of the church of england of their 'last hopes of eternal damnation.' on the last occasion dr. williams defended himself. the case increased fitzjames's general reputation and led to his being consulted in some similar cases, though it brought little immediate result in the shape of briefs. for my purpose the most important result is the indication afforded of his own religious position. he argues the question as a matter of law; but not in the sense of reducing it to a set of legal quibbles or technical subtleties. the prosecutors have appealed to the law, and to the law they must go; but the law secures to his client the liberty of uttering his conscientious convictions. dr. williams, he says, 'would rather lose his living as an honest man than retain it by sneaking out of his opinions like a knave and a liar.'[ ] he will therefore take a bold course and lay down broad principles. he will not find subterfuges and loopholes of escape; but admit at once that his client has said things startling to the ignorant, but that he has said them because he had a right to say them. the main right is briefly the right to criticise the bible freely. fitzjames admits that he has to run the risk of apparently disparaging that 'most holy volume, which from his earliest infancy he has been taught to revere as the choicest gift of god to man, as the guide of his conduct here, the foundation of his hopes hereafter.'[ ] he declares that the articles were framed with the confidence which has been 'justified by the experience of three centuries,' and will, he hopes, be justified 'so long as it pleases god to continue the existence of the human race,' that the scripture stands upon a foundation irremovable by any efforts of criticism or interpretation.[ ] the principle which he defends, (that the bible contains, but does not constitute revelation) is that upon which the divines of the eighteenth century based their 'triumphant defence of christianity against the deists' of the period. i am certain that fitzjames, though speaking as an advocate, was also uttering his own convictions in these words which at a later period he would have been quite unable to adopt. i happened at the time to have a personal interest in the subject, and i remember putting to him a question to this effect: your legal argument may be triumphant; but how about the moral argument? a clergyman may have a right to express certain opinions; but can you hold that a clergyman who holds those opinions, and holds also what they necessarily imply, can continue, as an honest man, to discharge his functions? as often happens, i remember my share in our talk much more clearly than i remember his; but he was, i know, startled, and, as i fancied, had scarcely contemplated the very obvious application of his principles. i have now seen, however, a very full and confidential answer given about the same time to a friend who had consulted him upon the same topic. as i have always found, his most confidential utterances are identical in substance with all that he said publicly, although they go into more personal applications.[ ] the main purpose of this paper is to convince a lady that she may rightfully believe in the doctrines of the church of england, although she does not feel herself able to go into the various metaphysical and critical problems involved. the argument shows the way in which his religious beliefs were combined with his benthamism. he proves, for example, that we should believe the truth by the argument that true belief is 'useful.' conversely the utility of a belief is a presumption that it contains much truth. hence the prolonged existence of a church and its admitted utility afford a presumption that its doctrines are true as the success of a political constitution is a reason for believing the theory upon which it is built. this is enough to justify the unlearned for accepting the creed of the church to which they belong, just as they have to accept the opinions of a lawyer or of a physician in matters of health and business. they must not, indeed, accept what shocks their consciences, nor allow 'an intelligible absurdity' to be passed off as a 'sacred mystery.' the popular doctrines of hell and of the atonement come under this head; but he still refers to coleridge for an account of such doctrines, which appears to him 'quite satisfactory.' the church of england, however, lays so little stress upon points of dogmatic theology that its yoke will be tolerable. combined with this argument is a very strong profession of his own belief. the belief in a moral governor of the universe seems to him as ennobling as all other beliefs 'put together,' and 'more precious.' although the difficulty suggested by the prevalence of evil is 'inimical to all levity,' yet he thinks that it would be 'unreasonable and degrading' not to hold the doctrine itself. and, finally, he declares that he accepts two doctrines of 'unspeakable importance.' he prays frequently, and at times fervently, though not for specific objects, and believes that his prayers are answered. and further, he is convinced of a 'superintending providence' which has throughout affected his life. no argument that he has ever read or heard has weighed with him a quarter as much as his own personal experience in this matter. the paper, written with the most evident sincerity, speaks so strongly of beliefs which he rarely avowed in public that i feel it almost wrong to draw aside his habitual veil of reticence. i do so, though briefly, because some of his friends who remember his early orthodoxy were surprised by the contrast of what they call his aggressive unbelief in later life. it is therefore necessary to show that at this period he had some strong positive convictions, which indeed, though changed in later years, continued to influence his mind. he was also persuaded that the church of england, guarded by the decisions of lawyers, could be kept sufficiently open to admit the gradual infusion of rational belief. i must further remark that his belief, whatever may be thought of it, represented so powerful a sentiment that i must dwell for a little upon its general characteristics. for this reason i will speak here of the series of articles in 'fraser' to which i have already referred. during the next few years, to , he wrote several, especially in - , which he apparently intended to collect. the most significant of these is an article upon newman's 'apologia,' which appeared in september . fitzjames had some personal acquaintance with newman. he had been taken to the oratory, i believe by his friend grant duff; and had of course been impressed by newman's personal charm. fitzjames, however, was not the man to be awed by any reputation into reticence. he had a right to ask for a serious answer to serious questions. newman represented claims which he absolutely rejected, but which he desired fully to understand. he had on one occasion a conversation which he frequently mentioned in later years. the substance, as i gather from one of his letters, was to this effect: 'you say,' said fitzjames, 'that it is my duty to treat you and your church as the agents and mouthpiece of almighty god?' 'yes.' 'then give me anything like a reasonable ground for believing that you are what you claim to be.' newman appears to have replied in substance that he could not argue with a man who differed so completely upon first principles. fitzjames took this as practically amounting to the admission that newman had 'nothing to say to anyone who did not go three-fourths of the way to meet him.' 'i said at last,' he proceeds, '"if jesus christ were here, could he say no more than you do?" "i suppose you to mean that if he could, i ought to be able to give you what you ask?" "certainly, for you profess to be his authorised agent, and call upon me to believe you on that ground. prove it!" all he could say was, "i cannot work miracles," to which i replied, "i did not ask for miracles but for proofs." he had absolutely nothing to say.' i need hardly say that newman's report of the conversation would probably have differed from this, which gives a rough summary from fitzjames's later recollections. i do not hesitate, however, to express my own belief that it gives a substantially accurate account; and that the reason why newman had nothing to say is simply that there was nothing to be said. persons who suppose that a man of newman's genius in stating an argument must have been a great logician, and who further imagine that a great logician shows his power by a capacity of deducing any conclusions from any premises, will of course deny that statement. to argue the general question involved would be irrelevant. what i am concerned to point out is simply the inapplicability of newman's argument to one in fitzjames's state of mind. the result will, i think, show very clearly what was his real position both now and in later years. his essay on the 'apologia' insists in the first place upon a characteristic of newman's writings, which has been frequently pointed out by others; that is, that they are essentially sceptical. the author reaches orthodox conclusions by arguments which are really fatal to them. the legitimate inference from an argument does not depend upon the intention of the arguer; and the true tendency of newman's reasonings appears simply by translating them into impartial language. fitzjames dwells especially upon newman's treatment of the fundamental doctrine of the existence of a god. newman, for example, defends a belief in transubstantiation by dwelling upon the antinomies involved in the argument for a deity. as, in one case, we cannot give any meaning to an existence without a beginning, so, in the other, we can attach no meaning to the word 'substance.' if the analogy be correct, the true inference would be that both doctrines are meaningless aggregations of words, and therefore not capable of being in any true sense either 'believed' or 'disbelieved.' so again the view of the external world suggests to newman 'atheism, pantheism, or polytheism.' almighty benevolence has created a world of intelligent beings, most of whom are doomed to eternal tortures, and having become incarnate in order to save us, has altogether failed in his purpose. the inference is, says fitzjames, that 'if dr. newman was thoroughly honest he would become an atheist.' the existence of evil is, in fact, an argument against the goodness of god; though it may be, as fitzjames thinks it is in fact, overbalanced by other evidence. but if it be true that god has created an immense proportion of men to be eternally tormented in hell fire, it is nonsense to call him benevolent, and the explanation by a supposed 'catastrophe' is a mere evasion. in spite of this, newman professes himself, and of course in all sincerity, as much convinced of the existence of god as he is of his own existence. the 'objections,' as he puts it, are only 'difficulties'; they make it hard to understand the theory, but are no more reasons for rejecting it than would be the difficulty which a non-mathematical mind finds in understanding the differential calculus for rejecting 'taylor's theorem.' and, so far, the difference is rather in the process than the conclusion. newman believes in god on the testimony of an inner voice, so conclusive and imperative that he can dismiss all apparently contradictory facts, and even afford, for controversial purposes, to exaggerate them. fitzjames, as a sound believer in mill's logic, makes the facts the base of his whole argumentative structure, though he thinks that the evidence for a benevolent deity is much stronger than the evidence against it. when we come to the narrower question of the truth of christianity the difference is vital. newman's course had, in fact, been decided by a belief, however generated, in the 'principle of dogma,' and on the other hand by the gradual discovery of the unsatisfactory nature of the old-fashioned protestant argument as interpreted by paley and the evidence writers. for that argument, as has been seen, fitzjames had still a considerable respect. but no one had insisted more energetically upon its practical insufficiency, at any rate, than newman. he had declared man's reason to be so corrupt, that one who becomes a protestant is on a slope which will inevitably lead through socinianism to atheism. to prove his claims, therefore, to a protestant by appealing to such grounds as the testimony of the gospels, was obviously impossible. that evidence, taken by itself, especially as a sound utilitarian lawyer would take it, was, on his own showing, practically insufficient to prove the truth of the alleged facts, and, much more, to base upon them the claim of the infallible church. it is precisely the insufficiency of this view that gives force to the demand for a supernatural authority. how, then, was newman to answer an inquirer? obviously, on his own ground, he must appeal to the _à priori_ arguments afforded by the instinctive desire of men for an authoritative body, and to the satisfaction of their conscience by the dogmas revealed through its agency. then the question occurs: is this a logical argument, or an appeal from argument to feeling? is it not, as fitzjames thinks, a roundabout way of saying, 'i believe in this system because it suits my tastes and feelings, and because i consider truth unattainable'? if so, persuasion is substituted for reasoning: and the force of persuasion depends upon the constitution of the person to be persuaded. now the arguments, if they be called arguments, which newman could address to fitzjames upon this topic were obviously inapplicable. the dogmas, says newman, are congenial to the conscience. the conscience demands an avenging deity, and therefore a doctrine of sacrifice. but such an appeal fails if, in point of fact, a man's conscience rises against the dogma. this was fitzjames's position. 'large parts of the (catholic) theology,' he says in a letter, 'are not only silly, but, i think, cruel and immoral to the last degree. i think the doctrine of eternal damnation so wicked and so cruel that i would as soon teach my children to lie and steal as to believe in it.' this was to express one of his strongest convictions. in a review of theodore parker's works,[ ] written shortly before, he had to deal with an advocate of that 'intuitional' theory which he always repudiated. but parker at least appealed to reason, and had, by a different path, reached moral conclusions with fitzjames thoroughly agreed. doctrines, says fitzjames, which _prima facie_ conflict with our belief in a benevolent creator, such as the theory of vicarious suffering, are not indeed capable of being refuted by parker's summary method; but he fully agrees that they could only be established by very strong evidence, which he obviously does not believe to exist. to appeal, then, to the conscience on behalf of the very doctrine which has been destroyed by the revolt of our moral feelings is obviously impossible. newman, when he notices that the modern world rejects the sacrifice theory, explains it by saying that the conscience of the modern world has decayed. but it is a mere playing fast and loose with logic when you deny the authority of the court to which you appeal as soon as it decides against you. to fitzjames, at any rate, who regarded these doctrines as radically immoral, the argument could have no application. finally, the desire for some infallible guide in the midst of our doubts and difficulties is equally wide of the mark. it is so because, though the desire for truth is perfectly natural or highly commendable, there is not the slightest ground for supposing that it implies any royal road to truth. in all other matters, political, social, and physical, we have to blunder slowly into truth by harsh experience. why not in religious matters? upon this fitzjames frequently insists. deny any _à priori_ probability of such guidance, he says, and the catholic argument vanishes. moreover, as he argues at length in his review of the 'apologia,' it is absolutely inconsistent with facts. what is the use of saying that man's nature demands an infallible guide, when, as a matter of admitted fact, such a guide has only been granted to one small fraction of mankind? for thousands of years, and over the great majority of the present world, you admit yourselves that no such guide exists. what, then, is the value of an _à priori_ argument that it must exist? when newman has to do with the existence of the greek church, he admits it to be inconsistent with his theory, but discovers it to be a 'difficulty' instead of an 'objection.' that is to say that an argument which you cannot answer is to be dismissed on pretence of being only a 'difficulty,' as nonsense is to be admitted under the name of a 'mystery.' if you argued in that way in a court of justice, and, because you had decided a case one way, refused to admit evidence for the other view, what would be the value of your decision? i cannot here argue the justice of this view of newman's theories, though personally i think it just. but it is, in any case, eminently characteristic. fitzjames, like newman, had been much influenced by butler. both of them, after a fashion, accept butler's famous saying that 'probability is the guide of life.' newman, believing in the necessity of dogma, holds that we are justified in transmuting the belief corresponding to probability into such 'certitude' as corresponds to demonstration. he does so by the help of appeals to our conscience, which, for the reasons just given, fail to have any force for his opponent. fitzjames adhered steadily to butler's doctrine. there is, he says, a probability of the truth of the great religious doctrines--of the existence of a god and a soul; and, therefore, of the correctness of the belief that this world is a school or a preparation for something higher and better. no one could speak more emphatically than he often did of the vast importance of these doctrines. to hold them, he says, makes all the difference between a man and a beast. but his almost passionate assertion of this opinion would never lead him to over-estimate the evidence in its favour. we do not know the truth of these doctrines; we only know that they are probably true, and that probability is and must be enough for us; we must not torture our guesses into a sham appearance of infallible reasoning, nor call them self-evident because we cannot prove them, nor try to transfer the case from the court of reason to the court of sentiment or emotion. i might say, if i wished to be paradoxical, that this doctrine seems strange precisely because it is so common. it is what most people who think at all believe, but what nobody likes to avow. we have become so accustomed to the assertion that it is a duty for the ignorant to hold with unequivocal faith doctrines which are notoriously the very centres of philosophical doubt, that it is hard to believe that a man can regard them as at once important and incapable of strict proof. fitzjames naturally appears to the orthodox as an unbeliever, because he admits the doubt. he replies to one such charge that the 'broad general doctrines, which are the only consolation in death and the only solid sanction of morality, never have been, and, please god, never shall be, treated in these columns in any other spirit than that of profound reverence and faith.'[ ] yet he would not say, for he did not think, that those doctrines could be demonstrated. it was the odd thing about your brother, said his old friend t. c. sandars to me, that he would bring one face to face with a hopeless antinomy, and instead of trying, like most of us, to patch it up somehow, would conclude, 'now let us go to breakfast.' some of us discover a supernatural authority in these cases; others think that the doubt which besets these doctrines results from a vain effort to transcend the conditions of our intelligence, and that we should give up the attempt to solve them. most men to whom they occur resolve that if they cannot answer their doubts they can keep them out of sight, even of themselves. fitzjames was peculiar in frankly admitting the desirability of knowledge, which he yet admitted, with equal frankness, to be unattainable. and, for various reasons, partly from natural pugnacity, he was more frequently engaged in exposing sham substitutes for logic than in expounding his own grounds for believing in the probability. his own view was given most strikingly in a little allegory which i shall slightly condense, and which will, i think, sufficiently explain his real position in these matters. it concludes a review of a pamphlet by william thomson, then archbishop of york, upon the 'limits of philosophical enquiry.'[ ] i dreamt, he says, after bunyan's fashion, that i was in the cabin of a ship, handsomely furnished and lighted. a number of people were expounding the objects of the voyage and the principles of navigation. they were contradicting each other eagerly, but each maintained that the success of the voyage depended absolutely upon the adoption of his own plan. the charts to which they appealed were in many places confused and contradictory. they said that they were proclaiming the best of news, but the substance of it was that when we reached port most of us would be thrown into a dungeon and put to death by lingering torments. some, indeed, would receive different treatment; but they could not say why, though all agreed in extolling the wisdom and mercy of the sovereign of the country. saddened and confused i escaped to the deck, and found myself somehow enrolled in the crew. the prospect was unlike the accounts given in the cabin. there was no sun; we had but a faint starlight, and there were occasionally glimpses of land and of what might be lights on shore, which yet were pronounced by some of the crew to be mere illusions. they held that the best thing to be done was to let the ship drive as she would, without trying to keep her on what was understood to be her course. for 'the strangest thing on that strange ship was the fact that there was such a course.' many theories were offered about this, none quite satisfactory; but it was understood that the ship was to be steered due north. the best and bravest and wisest of the crew would dare the most terrible dangers, even from their comrades, to keep her on her course. putting these things together, and noting that the ship was obviously framed and equipped for the voyage, i could not help feeling that there was a port somewhere, though i doubted the wisdom of those who professed to know all about it. i resolved to do my duty, in the hope that it would turn out to have been my duty, and i then felt that there was something bracing in the mystery by which we were surrounded, and that, at all events, ignorance honestly admitted and courageously faced, and rough duty vigorously done, was far better than the sham knowledge and the bitter quarrels of the sickly cabin and glaring lamplight from which i had escaped. i need add no exposition of a parable which gives his essential doctrine more forcibly than i could do it. i will only add that he remained upon good terms with newman, who had, as he heard, spoken of his article as honest, plain-spoken, and fair to him. he hopes, as he says upon this, to see the old man and talk matters over with him--a phrase which probably anticipates the interview of which i have spoken. newman afterwards (september , ) writes to him in a friendly way, and gives him a statement of certain points of catholic moral theology. they seem to have met again, but without further argument. fitzjames wrote various articles in 'fraser' attacking manning, and criticising among other writings mr. lecky's 'rationalism' (very favourably), and professor seeley's then anonymous 'ecce homo.' he thinks that the author is a 'sheep in wolf's clothing,' and that his views dissolve into mist when closely examined. i need not give any account of these articles, but i may notice a personal connection which was involved. at this time mr. froude was editor of 'fraser,' a circumstance which doubtless recommended the organ. at what time he became acquainted with fitzjames i am unable to say; but the acquaintanceship ripened into one of his closest friendships. they had certain intellectual sympathies; and it would be hard to say which of them had the most unequivocal hatred of popery. here again, however, the friendship was compatible with, or stimulated by, great contrasts of temperament. no one could be blind to froude's great personal charm whenever he chose to exert it; but many people had the feeling that it was not easy to be on such terms as to know the real man. there were certain outworks of reserve and shyness to be surmounted, and they indicated keen sensibilities which might be unintentionally shocked. but to such a character there is often a great charm in the plain, downright ways of a masculine friend, who speaks what he thinks without reserve and without any covert intention. froude and fitzjames, in any case, became warmly attached; froude thoroughly appreciated fitzjames's fine qualities, and fitzjames could not but delight in froude's cordial sympathy.[ ] fitzjames often stayed with him in later years, both in ireland and devonshire: he took a share in the fishing, shooting, and yachting in which froude delighted; and if he could not rival his friend's skill as a sportsman admired it heartily, delighted in pouring out his thoughts about all matters, and, as froude told me, recommended himself to such companions as gamekeepers and fishermen by his hearty and unaffected interest in their pursuits. along with this friendship i must mention the friendship with carlyle. carlyle had some intercourse with my father in the 'fifties.' my father, indeed, had thought it proper to explain, in a rather elaborate letter after an early conversation, that he did not sympathise with one of carlyle's diatribes against the church of england, though he had not liked to protest at the moment. carlyle responded very courteously and asked for further meetings. his view of my father was coloured by some of his usual severity, but was not intentionally disparaging. fitzjames, on his first call, had been received by mrs. carlyle, who ordered him off the premises on suspicion of being an american celebrity hunter. he submitted so peacefully that she relented; called him back, and, discovering his name, apologised for her wrath. i cannot fix the dates, but during these years fitzjames gradually came to be very intimate with her husband. froude and he were often companions of the old gentleman on some of his walks, though fitzjames's opportunities were limited by his many engagements. i may here say that it would, i think, be easy to exaggerate the effects of this influence. in later years fitzjames, indeed, came to sympathise with many of carlyle's denunciations of the british constitution and parliamentary government. i think it probable that he was encouraged in this view by the fiery jeremiads of the older man. he felt that he had an eminent associate in condemning much that was a general object of admiration. but he had reached his own conclusions by an independent path. from carlyle he was separated by his adherence to mill's philosophical and ethical principles. he was never, in carlyle's phrase, a 'mystic'; and his common sense and knowledge of practical affairs made many of carlyle's doctrines appear fantastic and extravagant. the socialistic element of carlyle's works, of which mr. ruskin has become the expositor, was altogether against his principles. in walking with carlyle he said that it was desirable to steer the old gentleman in the direction of his amazingly graphic personal reminiscences instead of giving him texts for the political and moral diatribes which were apt to be reproductions of his books. in various early writings he expressed his dissent very decidedly along with a very cordial admiration both of the graphic vigour of carlyle's writings and of some of his general views of life. in an article in 'fraser' for december , he prefaces a review of 'frederick' by a long discussion of carlyle's principles. he professes himself to be one of the humble 'pig-philosophers' so vigorously denounced by the prophet. carlyle is described as a 'transcendentalist'--a kind of qualified equivalent to intuitionist. and while he admires the shrewdness, picturesqueness, and bracing morality of carlyle's teaching, fitzjames dissents from his philosophy. nay, the 'pig-philosophers' are the really useful workers; they have achieved the main reforms of the century; even their favourite parliamentary methods and their democratic doctrines deserve more respect than carlyle has shown them; and carlyle, if well advised, would recognise the true meaning of some of the 'pig' doctrines to be in harmony with his own. their _laissez-faire_ theory, for example, is really a version of his own favourite tenet, 'if a man will not work, neither let him eat.' although fitzjames's views changed, he could never become a thorough carlylean; and after undertaking to write about carlyle in mr. morley's series he abandoned the attempt chiefly because, as he told me, he found that he should have to adopt too frequently the attitude of a hostile critic. meanwhile carlyle admired my brother's general force of character, and ultimately made him his executor, in order, as he put it, that there might be a 'great molossian dog' to watch over his treasure. viii. view of the criminal law i come now to the third book of which i have spoken. this was the 'general view of the criminal law of england,' published in . fitzjames first begins to speak of his intention of writing this book in . he then took it up in preference to the history of the english administrative system, recommended by his father. that book, indeed, would have required antiquarian researches for which he had neither time nor taste. he thought his beginning too long and too dull to be finished at present. he was anxious, moreover, at the time of the education commission to emphasise the fact that he had no thoughts of abandoning his profession. a law-book would answer this purpose; and the conclusion of the commission in , and the contemporary breach with the 'saturday review,' gave him leisure enough to take up this task. the germ of the book was already contained in his article in the 'cambridge essays,' part of which he reproduces. he aspired to make a book which should be at once useful to lawyers and readable by every educated man. the 'view' itself has been in a later edition eclipsed by the later 'history of the english criminal law.' in point of style it is perhaps better than its successor, because more concentrated to a single focus. although i do not profess to be a competent critic of the law, a few words will explain the sense in which i take it to be characteristic of himself. the book, in the first place, is not, like most law-books, intended for purely practical purposes. it attempts to give an account of the 'general scope, tendency, and design of an important part of our institutions of which surely none can have a greater moral significance, or be more closely connected with broad principles of morality and politics, than those by which men rightfully, deliberately, and in cold blood, kill, enslave, or otherwise torment their fellow-creatures.'[ ] the phrase explains the deep moral interest belonging in his mind to a branch of legal practice which for sufficiently obvious reasons is generally regarded as not deserving the attention of the higher class of barristers. fitzjames was always attracted by the dramatic interest of important criminal cases, and by the close connection in various ways between criminal law and morality. he had now gained sufficient experience to speak with some authority upon a topic which was to occupy him for many years. in his first principles he was an unhesitating disciple of bentham[ ] and austin. bentham had given the first great impulse to the reforms in the english criminal law, which began about ; and austin had put bentham's general doctrine into a rigid form which to fitzjames appeared perfectly satisfactory. austin's authority has declined as the historical method has developed; fitzjames gives his impression of their true relations in an article on 'jurisprudence' in the 'edinburgh review' of october . he there reviews the posthumously published lectures of austin, along with maine's great book upon 'ancient law,' which in england heralded the new methods of thought. his position is characteristic. he speaks enthusiastically of austin's services in accurately defining the primary conceptions with which jurisprudence is conversant. the effect is, he says, nothing less than this; that jurisprudence has become capable of truly scientific treatment. he confirms his case by the parallel of the political economy founded by adam smith and made scientific by ricardo. i do not think that fitzjames was ever much interested in economical writings; and here he is taking for granted the claims which were generally admitted under the philosophical dynasty of j. s. mill. political economy was supposed to be a definitely constituted science; and the theory of jurisprudence, which sprang from the same school and was indeed its other main achievement, was entitled to the same rank. fitzjames argues, or rather takes for granted, that the claims of the economists to be strictly scientific are not invalidated by the failure of their assumptions to correspond exactly to concrete facts; and makes the same claim on behalf of austin. his view of maine's work is determined by this. he of course cordially admires his friend; but protests against the assumption by which maine is infected, that a history of the succession of opinions can be equivalent to an examination of their value. maine shows, for example, how the theory of the 'rights of man' first came up in the world; but does not thereby either prove or disprove it. it may have been a fallacy suggested by accident or a truth first discovered in a particular case. maine, therefore, and the historical school generally require some basis for their inquiries, and that basis is supplied by the teaching of bentham and austin. i will only observe in connection with this that fitzjames is tempted by his love of such inquiries to devote a rather excessive space in his law-book to inquiries about the logical grounds of conviction which have the disadvantage of not being strictly relevant, and the further disadvantage, i think, of following j. s. mill in some of the more questionable parts of his logic. the writings of bentham consisted largely in denunciations of the various failings of the english law; and here fitzjames takes a different position. one main point of the book was the working out of a comparison already made in the 'cambridge essays' between the english and the french systems. this is summed up in the statement that the english accepts the 'litigious' and the french the 'inquisitorial' system. in other words, the theory of french law is that the whole process of detecting crime is part of the functions of government. in france there is a hierarchy of officials who, upon hearing of a crime, investigate the circumstances in every possible way, and examine everyone who is able, or supposed to be able, to throw any light upon it. the trial is merely the final stage of the investigation, at which the various authorities bring out the final result of all their previous proceedings. the theory of english law, on the contrary, is 'litigious': the trial is a proceeding in which the prosecutor endeavours to prove that the prisoner has rendered himself liable to a certain punishment; and does so by producing evidence before a judge, who is taken to be, and actually is, an impartial umpire. he has no previous knowledge of the fact; he has had nothing to do with any investigations, and his whole duty is to see that the game is played fairly between the ligitants according to certain established rules. neither system, indeed, carries out the theory exclusively. 'an english criminal trial is a public inquiry, having for its object the discover of truth, but thrown for the purposes of obtaining that end into the form of a litigation between the prosecutor and the prisoner.'[ ] on the other hand, in the french system, the jury is really an 'excrescence' introduced by an afterthought. now, says fitzjames, the 'inquisitorial theory' is 'beyond all question the true one.' a trial ought obviously to be a public inquiry into a matter of public interest. he holds, however, that the introduction of the continental machinery for the detection of crime is altogether out of the question. it practically regards the liberty and comfort of any number of innocent persons as unimportant in comparison with the detection of a crime; and involves an amount of interference and prying into all manner of collateral questions which would be altogether unendurable in england. he is therefore content to point out some of the disadvantages which result from our want of system, and to suggest remedies which do not involve any radical change of principle. this brings out his divergence from bentham, not in principle but in the application of his principles. one most characteristic part of the english system is the law of evidence, which afterwards occupied much of fitzjames's thoughts. upon the english system there are a great number of facts which, in a logical sense, have a bearing upon the case, but which are forbidden to be adduced in a trial. so, to make one obvious example, husbands and wives are not allowed to give evidence against each other. why not? asks bentham. because, it is suggested, the evidence could not be impartial. that, he replies, is an excellent reason for not implicitly believing it; but it is no reason for not receiving it. the testimony, even if it be partial, or even if false, may yet be of the highest importance when duly sifted with a view to the discovery of the truth. why should we neglect any source from which light may be obtained? such arguments fill a large part of bentham's elaborate treatise upon the 'rationale of evidence,' and support his denunciations of the 'artificial' system of english law. english lawyers, he held, thought only of 'fee-gathering'; and their technical methods virtually reduced a trial from an impartial process of discovering truth into a mere struggle between lawyers fighting under a set of technical and arbitrary rules. he observes, for example, that the 'natural' mode of deciding a case has been preserved in a few cases by necessity, and especially in the case of courts-martial.[ ] bentham was not a practical lawyer; and fitzjames had on more than one occasion been impressed in precisely the opposite way by the same case.[ ] he had pointed out that the want of attention to the rules of evidence betrayed courts-martial into all manner of irrelevant and vexatious questions, which protracted their proceedings beyond all tolerable limits. but, on a larger scale, the same point was illustrated by a comparison between french and english trials. to establish this, he gives careful accounts of four english and three french trials for murder. the general result is that, although some evidence was excluded in the english trials which might have been useful, the advantage was, on the whole, greatly on their side. the french lawyers were gradually drawn on into an enormous quantity of investigations having very little relation to the case, and finally producing a mass of complicated statements and counter-statements beyond the capacity of a jury to bring to a definite issue. the english trials, on the other hand, did, in fact, bring matters to a focus, and allowed all really relevant matters to be fairly laid before the court. a criminal trial has to be more or less of a rough and ready bit of practical business. the test by which it is decided is not anything which can be laid down on abstract logical principles, but reduces itself to the simple fact that you can get twelve men to express a conviction equal to that which would decide them in important business of their own. and thus, though the english law is unsystematic, ill-arranged, and superficially wanting in scientific accuracy, it does, in fact, represent a body of principles, worked out by the rough common sense of successive generations, and requires only to be tabulated and arranged to become a system of the highest excellence. the greatest merit, perhaps, of the english system is the attitude naturally assumed by the judge. no one, says fitzjames, 'can fail to be touched' when he sees an eminent lawyer 'bending the whole force of his mind to understand the confused, bewildered, wearisome, and half-articulate mixture of question and statement which some wretched clown pours out in the agony of his terror and confusion.' the latitude allowed in such cases is highly honourable. 'hardly anything short of wilful misbehaviour, such as gross insults to the court or abuse of a witness, will draw upon (the prisoner) the mildest reproof.'[ ] the tacit understanding by which the counsel for the crown is forbidden to press his case unfairly is another proof of the excellence of our system, which contrasts favourably in this respect with the badgering and the prolonged moral torture to which a french prisoner is subject. reforms, however, are needed which will not weaken these excellences. the absence of any plan for interrogating the prisoner avoids the abuses of the french system, but is often a cruel hardship upon the innocent. 'there is a scene,' he says, 'which most lawyers know by heart, but which i can never hear without pain.' it is the scene when the prisoner, confused by the unfamiliar surroundings, and by the legal rules which he does not understand, tries to question the adverse witness, and muddles up the examination with what ought to be his speech for the defence, and, not knowing how to examine, is at last reduced to utter perplexity, and thinks it respectful to be silent. he mentions a case by which he had been much impressed, in which certain men accused of poaching had failed, from want of education and familiarity with legal rules, to bring out their real defence. an unlucky man, for example, had asked questions about the colour of a dog, which seemed to have no bearing upon the case, but which, as it afterwards turned out, incidentally pointed to a fact which identified the really guilty parties. he thinks that the interrogation of the prisoner might be introduced under such restrictions as would prevent any unfair bullying, and yet tend both to help an innocent man and to put difficulties in the way of sham or false defences of the guilty. this question, i believe, is still unsettled. i will not dwell upon other suggestions. i will only observe that he is in favour of some codification of the criminal law; though he thinks that enough would be done by re-enacting, in a simpler and less technical form, the six 'consolidation acts' of . he proposes, also, the formation of a ministry of justice which would in various ways direct the administration of the law, and superintend criminal legislation. briefly, however, i am content to say that, while he starts from bentham, and admits bentham's fundamental principles, he has become convinced by experience that bentham's onslaught upon 'judge-made law,' and legal fictions, and the 'fee-gathering' system, was in great part due to misunderstanding. the law requires to be systematised and made clear rather than to be substantially altered. it is, on the whole, a 'generous, humane, and high-minded system, eminently favourable to individuals, and free from the taint of that fierce cowardice which demands that, for the protection of society, somebody shall be punished when a crime has been committed.' though english lawyers are too apt to set off 'an unreasonable hardship against an unreasonable indulgence,' 'to trump one quibble by another, and to suppose that they cannot be wrong in practice because they are ostentatiously indifferent to theory,' the temper of the law is, in the main, 'noble and generous.' 'no spectacle,' he says, 'can be better fitted to satisfy the bulk of the population, to teach them to regard the government as their friend, and to read them lessons of truth, gentleness, moderation, and respect for the rights of others, especially for the rights of the weak and the wicked, than the manner in which criminal justice is generally administered in this country.'[ ] the book produced many of those compliments to which he was becoming accustomed, with a rather rueful sense of their small value. he could, he says, set up a shop with the stock he had received, though, in common honesty, he would have to warn his customers of the small practical value of his goods. two years hence, he thinks that a report of his being a legal author of some reputation may have reached an attorney. among the warmest admirers was willes, who called the 'view' a 'grand book,' kept it by him on the bench, and laid down the law out of it. willes remarks in a murder case at the same time (march ) that the prisoner has been defended 'with a force and ability which, if anything could console one for having to take part in such a case, would do so.' 'it is a great consolation to me,' remarks fitzjames. the local newspaper observes on the same occasion that fitzjames's speech for the prisoner kept his audience listening 'in rapt attention' to one of the ablest addresses ever delivered under such circumstances. in the beginning of he 'obtained the consent' of his old tutor field, now leader on the circuit, to his giving up attendance at sessions except upon special retainers. altogether he is feeling more independent and competent for his professional duties. ix. the 'pall mall gazette' at this time, however, he joined in another undertaking which for the following five years occupied much of his thoughts. it involved labours so regular and absorbing, that they would have been impossible had his professional employments been equal to his wishes. towards the end of he informs mr. smith that he cannot continue to be a regular contributor to the 'cornhill magazine.' he observes, however, that if mr. smith carries out certain plans then in contemplation, he will be happy to take the opportunity of writing upon matters of a more serious kind. the reference is to the 'pall mall gazette,' of which the first number appeared on february , , upon the opening day of the parliamentary session. the 'pall mall gazette' very soon took a place among daily papers similar to that which had been occupied by the 'saturday review' in the weekly press. many able writers were attached, and especially the great 'jacob omnium' (matthew james higgins), who had a superlative turn for 'occasional notes,' and 'w. r. g.' (william rathbone greg), who was fond of arguing points from a rather paradoxical point of view. 'i like refuting w. r. g.,' says fitzjames, though the 'refutations' were on both sides courteous and even friendly.[ ] mr. frederic harrison was another antagonist, who always fought in a chivalrous spirit, and on one occasion a controversy between them upon the theory of strikes actually ends by a mutual acceptance of each other's conclusions. a sharp encounter with 'historicus' of the 'times' shows that old cambridge encounters had not produced agreement. fitzjames was one of the writers to whom mr. smith applied at an early stage of the preparatory arrangements. fitzjames's previous experience of mr. smith's qualities as a publisher made him a very willing recruit, and he did his best to enlist others in the same service. he began to write in the second number of the paper, and before very long he took the lion's share of the leading articles. the amount of work, indeed, which he turned out in this capacity, simultaneously with professional work and with some other literary occupations, was so great that these years must, i take it, have been the most laborious in a life of unflagging labour. i give below an account of the number of articles contributed, which will tell the story more forcibly than any general statement. a word or two of explanation will be enough.[ ] the 'pall mall' of those days consisted of a leading article (rarely of two) often running to a much greater length than is now common; of 'occasional notes,' which were then a comparative novelty; of reviews, and of a few miscellaneous articles. the leading article was a rather more important part of the paper, or at least took up a larger proportion of space than it does at the present day. making allowance for sundays, it will be seen that in fitzjames wrote two-thirds of the leaders, nearly half the leaders in , and not much less than half in the three other years ( , , and ). the editor was mr. f. greenwood, who has kindly given me some of his recollections of the time. that mr. greenwood esteemed his contributor as a writer is sufficiently obvious from the simple statement of figures: and i may add that they soon formed a very warm friendship which was never interrupted in later years. i have said that fitzjames valued his connection with the paper because it enabled him to speak his mind upon many important subjects which had hitherto been forbidden to him. in the 'saturday review' he had been confined to the 'middles' and the reviews of books. he never touched political questions; and such utterances as occurred upon ecclesiastical matters were limited by the high church propensities of the proprietor. in the 'cornhill' he had been bound to keep within the limits prescribed by the tastes of average readers of light literature. in the 'pall mall gazette' he was able to speak out with perfect freedom upon all the graver topics of the day. his general plan, when in town, was to write before breakfast, and then to look in at the office of the 'pall mall gazette,' northumberland street, strand, in the course of his walk to his chambers. there he talked matters over with mr. greenwood, and occasionally wrote an article on the spot. when on circuit he still found time to write, and kept up a steady supply of matter. i find him remarking, on one occasion, that he had written five or six leaders in the 'pall mall gazette' for the week, besides two 'saturday review' articles. everyone who has had experience of journalism knows that the time spent in actual writing is a very inadequate measure of the mental wear and tear due to production. an article may be turned out in an hour or two; but the work takes off the cream of the day, and involves much incidental thought and worry. fitzjames seemed perfectly insensible to the labour; articles came from him as easily as ordinary talk; the fountain seemed to be always full, and had only to be turned on to the desired end. the chief fault which i should be disposed to find with these articles is doubtless a consequence of this fluency. he has not taken time to make them short. they often resemble the summing-up of a judge, who goes through the evidence on both sides in the order in which it has been presented to him, and then states the 'observations which arise' and the 'general result' (to use his favourite phrases). a more effective mode of presenting the case might be reached by at once giving the vital point and arranging the facts in a new order of subordination. the articles, however, had another merit which i take to be exceedingly rare. i have often wondered over the problem, what constitutes the identity of a newspaper? i do not mean to ask, though it might be asked, in what sense is the 'pall mall gazette' of to-day the same newspaper as the 'pall mall gazette' of ? but what is meant by the editorial 'we'? the inexperienced person is inclined to explain it as a mere grammatical phrase which covers in turn a whole series of contributors. but any writer in a paper, however free a course may be conceded to him, finds as a fact that the 'we' means something very real and potent. as soon as he puts on the mantle, he finds that an indefinable change has come over his whole method of thinking and expressing himself. he is no longer an individual but the mouthpiece of an oracle. he catches some infection of style, and feels that although he may believe what he says, it is not the independent outcome of his own private idiosyncrasy. now fitzjames's articles are specially remarkable for their immunity from this characteristic. when i read them at the time, and i have had the same experience in looking over them again, i recognised his words just as plainly as if i had heard his voice. a signature would to me and to all in the secret have been a superfluity. and, although the general public had not the same means of knowledge, it was equally able to perceive that a large part of the 'pall mall gazette' represented the individual convictions of a definite human being, who had, moreover, very strong convictions, and who wrote with the single aim of expressing them as clearly and vigorously as he could. fitzjames, as i have shown sufficiently, was not of the malleable variety; he did not fit easily into moulds provided by others; but now that his masterful intellect had full play and was allowed to pour out his genuine thought, it gave the impress of individual character to the paper in a degree altogether unusual. i have one anecdote from mr. greenwood which will sufficiently illustrate this statement. lord palmerston died on october , . on october he was buried in westminster abbey. fitzjames came to the 'pall mall gazette' office and proposed to write an article upon the occasion. he went for the purpose into a room divided by a thin partition from that in which mr. greenwood sat. mr. greenwood unintentionally became aware, in consequence, that the article was composed literally with prayer and with tears. no one who turns to it will be surprised at the statement. he begins by saying that we are paying honour to a man for a patriotic high spirit which enabled him to take a conspicuous part in building up the great fabric of the british empire. but he was also--as all who were taking part in the ceremony believed in their hearts--a 'man of the world' and 'a man of pleasure.' do we, then, disbelieve in our own creed, or are we engaged in a solemn mockery? palmerston had not obeyed the conditions under which alone, as every preacher will tell us, heaven can be hoped for. patriotism, good nature, and so forth are, as we are told, mere 'filthy rags' of no avail in the sight of heaven. if this belief be genuine, the service must be a mockery. but he fully believes that it is not genuine. the preachers are inconsistent, but it is an honourable inconsistency. if good and evil be not empty labels of insincere flattery, it is 'right, meet, and our bounden duty' to do what is being done even now--to kneel beside the 'great, good, and simple man whom we all deplore,' and to thank god that it has pleased him to remove our brother 'out of the miseries of this sinful world.' 'our miserable technical rules reach but a little way into the mystery' which 'dimly foreshadows that whatever we with our small capacities have been able to love and honour, god, who is infinitely wiser, juster, and more powerful, will love and honour too, and that whatever we have been compelled to blame, god, who is too pure to endure unrighteousness, will deal with, not revengefully or capriciously, but justly and with a righteous purpose. whatever else we believe, it is the cardinal doctrine of all belief worth having that the judge of all the earth will do right; that his justice is confined to no rules; that his mercy is over all the earth; and that revenge, caprice, and cruelty can have no place in his punishments.' few leading articles, i take it, have been written under such conditions or in such a spirit. the reader must have felt himself face to face with a real man, profoundly moved by genuine thoughts and troubled as only the most able and honest men are troubled, by the contrast between our accustomed commonplaces and our real beliefs. most of his articles are written in a strain of solid and generally calm common sense; and some, no doubt, must have been of the kind compared by his father to singing without inflated lungs--mere pieces of routine taskwork. yet, as i have already shown, by his allegory of the ship, there was always a strong vein of intense feeling upon certain subjects, restrained as a rule by his dislike to unveiling his heart too freely and yet making itself perceptible in some forcible phrase and in the general temper of mind implied. the great mass of such work is necessarily of ephemeral interest; and it is painful to turn over the old pages and observe what a mould of antiquity seems to have spread over controversies so exciting only thirty years ago. we have gone far in the interval; though it is well to remember that we too shall soon be out of date, and our most modern doctrines lose the bloom of novelty. there are, however, certain lights in which even the most venerable discussions preserve all their freshness. without attempting any minute details, i will endeavour to indicate the points characteristic of my brother's development. there was one doctrine which he expounds in many connections, and which had a very deep root in his character. it appears, for example, in his choice of a profession; decided mainly by the comparison between the secular and the spiritual man. the problem suggested to him by lord palmerston shows another application of the same mode of thought. what is the true relation between the church and the world; or between the monastic and ascetic view of life represented by newman and the view of the lawyer or man of business? to him, as i have said, god seemed to be more palpably present in a court of justice than in a monastery; and this was not a mere epigram expressive of a transitory mood. various occurrences of the day led him to apply his views to questions connected with the established church. after the 'essays and reviews' had ceased to be exciting there were some eager discussions about colenso, and his relations as bishop of natal to the bishop of capetown. controversies between liberal catholics and ultramontanes raised the same question under different aspects, and fitzjames frequently finds texts upon which to preach his favourite sermon. it may be said, i think, that there are three main lines of opinion. in the first place, there was the view of the liberationists and their like. the ideal is a free church in a free state. each has its own sphere, and, as macaulay puts it in his famous essay upon mr. gladstone's early book, the state has no more to do with the religious opinions of its subjects than the north-western railway with the religious opinions of its shareholders. this, represented a view to which fitzjames felt the strongest antipathy. it assumed, he thought, a radically false notion, the possibility of dividing human life into two parts, religious and secular; whereas in point of fact the state is as closely interested as the church in the morality of its members, and therefore in the religion which determines the morality. the state can only keep apart permanently from religious questions by resigning all share in the most profoundly important and interesting problems of life. to accept this principle would therefore be to degrade the state to a mere commercial concern, and it was just for that reason that its acceptance was natural to the ordinary radical who reflected the prejudices of the petty trader. a state which deserves the name has to adopt morality of one kind or another, in its criminal legislation, in its whole national policy, in its relation to education, and more or less in every great department of life. in his view, therefore, the ordinary cry for disestablishment was not the recognition of a tenable and consistent principle, but an attempt to arrange a temporary compromise which could only work under special conditions, and must break up whenever men's minds were really stirred. however reluctant they may be, they will have to answer the question, is this religion true or not? and to regulate their affairs accordingly. he often expresses a conviction that we are all in fact on the eve of such a controversy, which must stir the whole of society to its base. we have, then, to choose between two other views. the doctrine of sovereignty expounded by austin, and derived from his favourite philosopher hobbes, enabled him to put the point in his own dialect. the difference between church and state, he said, is not a difference of spheres, but a difference of sanctions. their commands have the same subject matter: but the priest says, 'do this or be damned'; the lawyer, 'do this or be hanged.' hence the complete separation is a mere dream. since both bodies deal with the same facts, there must be an ultimate authority. the only question is which? will you obey the pope or the emperor, the power which claims the keys of another life or the power which wields the sword in this. so far he agrees with the ultramontanes as against the liberal catholics. but, though the ultramontanes put the issue rightly, his answer is diametrically opposite. he follows hobbes and is a thorough-going erastian. he sympathised to some degree with the doctrine of coleridge and dr. arnold. they regarded the church and the state as in a sense identical; as the same body viewed under different aspects. fitzjames held also that state and church should be identical; but rather in the form that state and church were to be one and that one the state. for this there were two good reasons. in the first place, the claims of the church to supernatural authority were altogether baseless. to bow to those claims was to become slaves of priests and to accept superstitions. and, in the next place, this is no mere accident. the division between the priest and layman corresponds to his division between his 'sentimentalist' and his 'stern, cold man of common sense.' now the priest may very well supply the enthusiasm, but the task of legislation is one which demands the cool, solid judgment of the layman. he insists upon this, for example, in noticing professor seeley's description of the 'enthusiasm of humanity' in 'ecce homo.' such a spirit, he urges, may supply the motive power, but the essence of the legislative power is to restrict and constrain, and that is the work not of the enthusiast, but of the man of business. during this period he seems to have had some hopes that his principles might be applied. the lawyers had prevented the clergy from expelling each section of the church in turn: and the decision in the 'essays and reviews' cases had settled that free-thinking should have its representatives among ecclesiastical authorities. at one period he even suggests that, if an article or two were added to the thirty-nine, some change made in the ordination service, and a relaxation granted in the terms of subscription, the church might be protected from sacerdotalism; and, though some of the clergy might secede to rome, the church of england might be preserved as virtually the religious department of the state. he soon saw that any realisation of such views was hopeless. he writes from india in to a friend, whom he had advised upon a prosecution for heresy, saying that he saw clearly that we were drifting towards voluntaryism. any other solution was for the present out of the question; although he continued to regard this as a makeshift compound, and never ceased to object to disestablishment. fitzjames's political views show the same tendencies. he had not hitherto taken any active interest in politics, taken in the narrower sense. our friend henry fawcett, with whom he had many talks on his christmas visits to trinity hall, was rather scandalised by my brother's attitude of detachment in regard to the party questions of the day. fitzjames stood for harwich in the liberal interest at the general election of ; but much more because he thought that a seat in parliament would be useful in his profession than from any keen interest in politics. the harwich electors in those days did not, i think, take much interest themselves in political principles. both they and he, however, seemed dimly to perceive that he was rather out of his element, and the whole affair, which ended in failure, was of the comic order. his indifference and want of familiarity with the small talk of politics probably diminished the effect of his articles in so far as it implied a tendency to fall back upon principles too general for the average reader. but there was no want of decided convictions. the death of palmerston marked the end of the old era, and was soon succeeded by the discussions over parliamentary reform which led to disraeli's measure of . fitzjames considered himself to be a liberal, but the liberals of those days were divided into various sections, not fully conscious of the differences which divided them. in one of his 'cornhill' articles[ ] fitzjames had attempted to define what he meant by liberalism. it meant, he said, hostility to antiquated and narrow-minded institutions. it ought also to mean 'generous and high-minded sentiments upon political subjects guided by a highly instructed, large-minded and impartial intellect, briefly the opposite of sordidness, vulgarity, and bigotry.' the party technically called liberal were about to admit a larger popular element to a share of political power. the result would be good or bad as the new rulers acted or did not act in the spirit properly called liberal. unluckily the flattery of the working-man has come into fashion; we ignore his necessary limitations, and we deify the 'casual opinions and ineffectual public sentiments' of the half-educated. 'the great characteristic danger of our days is the growth of a quiet, ignoble littleness of character and spirit.' we should aim, therefore, at impressing our new masters 'with a lofty notion not merely of the splendour of the history of their country, but of the part which it has to play in the world, and of the spirit in which it should be played.' he gives as an example a topic to which he constantly turns. the 'whole fabric' of the indian empire, he says, is a monument of energy, 'skill and courage, and, on the whole, of justice and energy, such as the world never saw before.' how are we to deal with that great inheritance bequeathed to us by the courage of heroes and the wisdom of statesmen? india is but one instance. there is hardly an institution in the country which may not be renewed if we catch the spirit which presided over its formation. liberals have now to be authors instead of critics, and their solution of such problems will decide whether their success is to be a curse or a blessing. this gives the keynote of his writings in the 'pall mall gazette.' he frankly recognises the necessity, and therefore does not discuss the advisability, of a large extension of the franchise. he protests only against the view, which he attributes to bright, that the new voters are to enter as victors storming the fortress of old oppressors, holding that they should be rather cordially invited to take their place in a stately mansion upheld for eight centuries by their ancestors. when people are once admitted, however, the pretext for admission is of little importance. fitzjames gradually comes to have his doubts. there is, he says, a liberalism of the intellect and a liberalism of sentiment. the intellectual liberal is called a 'cold-hearted doctrinaire' because he asks only whether a theory be true or false; and because he wishes for statesmanlike reforms of the church, the educational system, and the law, even though the ten-pound householder may be indifferent to them. but the sentimental liberal thought only of such measures as would come home to the ten-pound householder; and apparently this kind of liberal was getting the best of it. the various party manoeuvres which culminated in the reform bill begin to excite his contempt. he is vexed by the many weaknesses of party government. the war of suggests reflections upon the military weakness of england, and upon the inability of our statesmen to attend to any object which has no effect upon votes. the behaviour of the conservative government in the case of the hyde park riots of the same year excites his hearty contempt. he is in favour of the disestablishment of the irish church, and lays down substantially the principles embodied in mr. gladstone's measure. but he sympathises more and more with carlyle's view of our blessed constitution. we have the weakest and least permanent government that ever ruled a great empire, and it seems to be totally incapable of ever undertaking any of the great measures which require foresight and statesmanship. he compares in this connection the construction of legal codes in india with our inability to make use of a great legal reformer, such as lord westbury, when we happen to get him. sentiments of this kind seem to grow upon him, although they are not expressed with bitterness or many personal applications. it is enough to say that his antipathy to sentimentalism, and to the want of high patriotic spirit in the manchester school of politics, blends with a rather contemptuous attitude towards the parliamentary system. it reveals itself to him, now that he is forced to become a critic, as a petty game of wire-pulling and of pandering to shallow popular prejudices of which he is beginning to grow impatient. i may finish the account of his literary activity at this time by saying that he was still contributing occasional articles to 'fraser' and to the 'saturday review.' the 'saturday review' articles were part of a scheme which he took up about . it occurred to him that he would be employing himself more profitably by writing a series of articles upon old authors than by continuing to review the literature of the day. he might thus put together a kind of general course of literature. he wrote accordingly a series of articles which involved a great amount of reading as he went through the works of some voluminous authors. they were published as 'horæ sabbaticæ' in , in three volumes, without any serious revision. it is unnecessary to dwell upon them at any length. it would be unfair to treat them as literary criticism, for which he cared as little as it deserves. he was very fond, indeed, of sainte-beuve, but almost as much for the information as for the criticism contained in the 'causeries.' he had always a fancy for such books as gibbon's great work which give a wide panoramic view of history, and defended his taste on principle. these articles deal with some historical books which interested him, but are chiefly concerned with french and english writers from hooker to paley and from pascal to de maistre, who dealt with his favourite philosophical problems. their peculiarity is that the writer has read his authors pretty much as if he were reading an argument in a contemporary magazine. he gives his view of the intrinsic merits of the logic with little allowance for the historical position of the author. he has not made any study of the general history of philosophy, and has not troubled himself to compare his impressions with those of other critics. the consequence is that there are some very palpable misconceptions and failure to appreciate the true relation to contemporary literature of the books criticised. i can only say, therefore, that they will be interesting to readers who like to see the impression made upon a masculine though not specially prepared mind by the perusal of certain famous books, and who relish an independent verdict expressed in downright terms without care for the conventional opinion of professional critics. his thoughts naturally turned a good deal to various projects connected with his writing. in july he writes that he has resolved to concentrate himself chiefly upon the 'pall mall gazette' for the present. he is, however, to complete some schemes already begun. the 'fraser' articles upon religious topics will make one book; then there are the 'horæ sabbaticæ' articles, of which he has already written fifty-eight, and which will be finished in about twenty more. but, besides this, he has five law-books in his mind, including a rewriting of the book on criminal law and a completion of the old book upon the administrative history. others are to deal with martial law, insanity, and the relations of england to india and the colonies. beyond these he looks at an 'awful distance' upon a great book upon law and morals. he is beginning to doubt whether literature would not be more congenial than law, if he could obtain some kind of permanent independent position. law, no doubt, has given him a good training, but the pettiness of most of the business can hardly be exaggerated; and he hardly feels inclined to make it the great aim of his life. he had, however, risen to a distinctly higher position on his circuit; and just at this time he was engaged in one of the cases which, as usual, brought more in the way of glory than of gain. x. governor eyre the troubles in jamaica had taken place in october . the severity of the repressive measures excited indignation in england; and discussions arose conducted with a bitterness not often paralleled. the gordon case was the chief topic of controversy. governor eyre had arrested gordon, whom he considered to be the mainspring of the insurrection, and sent him to the district in which martial law had been proclaimed. there he was tried by a court-martial ordered by general nelson, and speedily hanged. the controversy which followed is a curious illustration of the modes of reasoning of philosophers and statesmen. nobody could deny the general proposition that the authorities are bound to take energetic measures to prevent the horrors of a servile insurrection. nor could anyone deny that they are equally bound to avoid the needless severities which the fear of such horrors is likely to produce. which principle should apply was a question of fact; but in practice the facts were taken for granted. one party assumed unanimously that governor eyre had been doing no more than his duty; and the other, with equal confidence, assumed that he was guilty of extreme severity. a commission, consisting of sir henry storks, mr. russell gurney, and mr. maule, the recorder of leeds, was sent out at the end of to inquire into the facts. meanwhile the jamaica committee was formed, of which j. s. mill was chairman, with mr. p. a. taylor, the radical leader, as vice-chairman.[ ] the committee (in january ) took the opinions of fitzjames and mr. edward james as to the proper mode of invoking the law. fitzjames drew the opinion, which was signed by mr. james and himself.[ ] after the report of the commission (april ), which showed that excesses had been committed, the committee acted upon this opinion. from fitzjames's letters written at the time, i find that his study of the papers published by the commission convinced him that governor eyre had gone beyond the proper limits in his behaviour towards gordon. the governor, he thought, had been guilty of an 'outrageous stretch of power,' and had hanged gordon, not because it was necessary to keep the peace, but because it seemed to be expedient on general political grounds. this was what the law called murder, whatever the propriety of the name. fitzjames made an application in january before sir thomas henry, the magistrate at bow street, to commit for trial the officers responsible for the court-martial proceedings (general nelson and lieutenant brand) on the charge of murder. in march he appeared before the justices at market drayton, in shropshire, to make a similar application in the case of governor eyre. he was opposed by mr. (the late lord) hannen at bow street, and by mr. giffard (now lord halsbury) at market drayton. the country magistrates dismissed the case at once; but sir thomas henry committed nelson and brand for trial. mr. lushington tells me that sir thomas henry often spoke to him with great admiration of fitzjames's powerful argument on the occasion. on april , , the trial of nelson and brand came on at the old bailey, when chief justice cockburn delivered an elaborate charge, taking substantially the view of the law already expounded by fitzjames. the grand jury, however, threw out the bill. the law, as understood by fitzjames, comes, i think, substantially to this. the so-called 'martial law' is simply an application of the power given by the common law to put down actual insurrection by force. the officers who employ force are responsible for any excessive cruelty, and are not justified in using it after resistance is suppressed, or the ordinary courts reopened. the so-called courts-martial are not properly courts at all, but simply committees for carrying out the measures adopted on the responsibility of the officials; and the proclamation is merely a public notice that such measures will be employed. it is clear from fitzjames's speeches that he felt much sympathy for the persons who had been placed in a position of singular difficulty, and found it hard to draw the line between energetic defence of order and over-severity to the rebels. he explains very carefully that he is not concerned with the moral question, and contends only that the legal name for their conduct is murder. in fact, he paid compliments to the accused which would be very inappropriate to the class of murderers in the ordinary sense of the term. the counsel on the opposite side naturally took advantage of this, and described his remarks as a 'ghastly show of compliment.' it must be awkward to say that a man is legally a murderer when you evidently mean only he has lost his head and gone too far under exceedingly trying circumstances. the jamaica committee did not admit of any such distinction. to them governor eyre appeared to be morally as well as legally guilty of murder. fitzjames appears to have felt that the attempt to proceed further would look like a vindictive persecution; and he ceased after this to take part in the case. he congratulated himself upon this withdrawal when further proceedings (in ) led to abortive results. one result was a coolness between my brother and j. s. mill, who was displeased by his want of sufficient zeal in the matter. they had been on friendly terms, and i remember once visiting mill at blackheath in my brother's company. there was never, i think, any cordial relation between them. fitzjames was a disciple of mill in philosophical matters, and in some ways even, as i hold, pushed mill's views to excess. he complains more than once at this time that carlyle was unjust to the utilitarian views, which, in his opinion, represented the true line of advance. but carlyle was far more agreeable to him personally. the reason was, i take it, that carlyle had what mill had not, an unusual allowance of the quality described as 'human nature.' mill undoubtedly was a man of even feminine tenderness in his way; but in political and moral matters he represented the tendency to be content with the abstractions of the unpractical man. he seemed to fitzjames at least to dwell in a region where the great passions and forces which really stir mankind are neglected or treated as mere accidental disturbances of the right theory. mill seemed to him not so much cold-blooded as bloodless, wanting in the fire and force of the full-grown male animal, and comparable to a superlatively crammed senior wrangler, whose body has been stunted by his brains. fitzjames could only make a real friend of a man in whom he could recognise the capacity for masculine emotions as well as logical acuteness, and rightly or wrongly mill appeared to him to be too much of a calculating machine and too little of a human being. this will appear more clearly hereafter. xi. indian appointment in the meantime fitzjames was obtaining, as usual, some occasional spurts of practice at the bar, while the steady gale still refused to blow. he had an influx of parliamentary business, which, for whatever reason, did not last long. he had some arbitration cases of some importance, and he was employed in a patent case in which he took considerable interest. he found himself better able than he had expected to take in mechanical principles, and thought that he was at last getting something out of his cambridge education. mr. chamberlain has kindly sent me his recollections of this case. 'i first made the acquaintance of sir j. f. stephen' (he writes) 'in connection with a very important and complicated arbitration in which the firm of nettlefold & chamberlain, of which i was then a partner, was engaged. sir james led for us in this case, which lasted nearly twelve months, and he had as junior the late lord bowen. the arbitrator was the present baron pollock, assisted by mr. hick, m.p., the head of a great engineering firm. from the first i was struck with sir james stephen's extraordinary grasp of a most complicated subject, involving as it did the validity of a patent and comparison of most intricate machinery, as well as investigation of most elaborate accounts. he insisted on making himself personally acquainted with all the processes of manufacture, and his final speech on the case was a most masterly summary of all the facts and arguments. in dealing with hostile witnesses he was always firm but courteous, never taking unfair advantage or attempting to confuse, but solely anxious to arrive at the truth. he was a tremendous worker, rising very early in the morning, and occupying every spare moment of his time. i remember frequently seeing him in moments of leisure at work on the proofs of the articles which he was then writing for the "pall mall gazette." in private he was a most charming companion, full of the most varied information and with a keen sense of humour. our business relations led to a private friendship, which lasted until his death.' in he took silk, for which he had applied unsuccessfully two years before. in the autumn of the same year he sat for the first time in the place of one of the judges at leeds, and had the pleasure of being 'my lord,' and trying criminals. 'it appears to me,' he says, 'to be the very easiest work that ever i did.' the general election at the end of brought him some work in the course of the following year. he was counsel in several election petitions, and found the work contemptible. 'it would be wearisome,' he says, 'to pass one's life in a round of such things, even if one were paid _l._ a day.' advocacy in general is hardly a satisfactory calling for a being with an immortal soul, and perhaps a mortal soul would have still less excuse for wasting its time. the view of the ugly side of politics is disgusting, and he acknowledges a 'restless ambition' prompting him to look to some more permanent results. these reflections were partly suggested by a new turn of affairs. i have incidentally quoted more than one phrase showing how powerfully his imagination had been impressed by the indian empire. he says in his last book[ ] that in his boyhood macaulay's 'essays' had been his favourite book. he had admired their manly sense, their 'freedom from every sort of mysticism,' their 'sympathy with all that is good and honourable.' he came to know him almost by heart, and in particular the essays upon clive and warren hastings gave him a feeling about india like that which other boys have derived about the sea from marryat's novels. the impression, he says, was made 'over forty years ago,' that is, by . in fact the indian empire becomes his staple illustration whenever he is moved to an expression of the strong patriotic sentiment, which is very rarely far from his mind. he speaks in of recurring to an 'old plan' for writing a book about india. i remember that he suggested to me about that date that i should take up such a scheme, and was a good deal amused by my indignation at the proposal. james mill, he argued, had been equally without the local knowledge which i declared to be necessary to a self-respecting author. several circumstances had strengthened the feeling. his friend maine had gone to india in as legal member of council, and was engaged upon that work of codification to which he refers admiringly in the 'view of the criminal law.' in november fitzjames's brother-in-law, henry cunningham, went to india, where he was appointed public prosecutor in the punjab. his sister, then miss emily cunningham, joined him there. their transplantation caused a very important part of fitzjames's moorings (if i may say so) to be fixed in india. it became probable that he might be appointed maine's successor. in this was suggested to him by maine himself, when he regarded it on the whole unfavourably; but during the question came to need an answer. against accepting the post was the risk to his professional prospects. although not so brilliant as could be wished, they presented several favourable appearances; and he often hoped that he was at last emerging definitely from his precarious position. his opinion varied a little with the good or bad fortune of successive circuits. he felt that he might be sacrificing the interests of his family to his own ambition. the domestic difficulty was considerable. he had at this time seven children; and the necessity of breaking up the family would be especially hard upon his wife. upon the other hand was the desire for a more satisfying sphere of action. 'i have been having a very melancholy time this circuit' (he writes to miss cunningham, march , ). 'i am thoroughly and grievously out of spirits about these plans of ours. on the whole i incline towards them; but they not unfrequently seem to me cruel to mary, cruel to the children, undutiful to my mother, quixotic and rash and impatient as regards myself and my own prospects.... i have not had a really cheerful and easy day for weeks past, and i have got to feel at last almost beaten by it.' he goes on to tell how he has been chaffed with the characteristic freedom of barristers for his consequent silence at mess. it is 'thoroughly weak-minded of me,' he adds, but he will find a 'pretty straight road through it in one direction or another.' gradually the attractions of india became stronger. 'it would be foolish,' he says, 'when things are looking well on circuit, to leave a really flourishing business to gratify a taste, though i must own that my own views and henry cunningham's letters give me almost a missionary feeling about the country.' he reads books upon the subject and his impression deepens. india, he declares, seems to him to be 'legally, morally, politically, and religiously nearly the most curious thing in the world.' at last, on may , while he is attending a 'thoroughly repulsive and disgusting' trial of an election petition at stafford, he becomes sick of his indecision. he resolves to take a two hours' walk and make up his mind before returning. he comes back from his walk clear that it is 'the part of a wise and brave man' to accept such a chance when it comes in his way. next day he writes to grant duff, then indian under-secretary, stating his willingness to accept the appointment if offered to him. he was accordingly appointed on july . a fortnight later the chief justiceship of calcutta, vacant by the resignation of sir barnes peacock, was offered to him; but he preferred to retain his previous appointment, which gave him precisely the kind of work in which he was most interested. he was pleased to recollect that the post on its first creation had been offered to his father. among his earliest memories were those of the talks about india which took place at kensington gore on that occasion, when macaulay strongly advised my father to take the post of which he soon became himself the first occupant. fitzjames spent the summer at a house called drumquinna on the kenmare river. froude was his neighbour at dereen on the opposite bank, and they saw much of each other. in november, after various leave-takings and the reception of a farewell address on resigning the recordership of newark, he set out for india, his wife remaining for the present in england. footnotes: [footnote : 'bars of france and england,' _cornhill magazine_, p. , august .] [footnote : he died june , .] [footnote : may , .] [footnote : i see from a contemporary note that fitzjames attributes an article upon goethe in one of the first numbers to 'froude, who wrote the _nemesis of faith_'; but this appears to be only his conjecture.] [footnote : i believe also that for many years he wrote the annual summary of events in the _times_.] [footnote : a list was preserved by fitzjames of his contributions to the _saturday review_ and other periodicals of his time, which enables me to speak of his share with certainty.] [footnote : december , .] [footnote : see e.g. _saturday review_, january and july , , 'mr. dickens as a politician,' and 'the _saturday review_ and light literature.'] [footnote : october , .] [footnote : mr. rogers's _reminiscences_ ( ), - , gives a full and interesting account of this commission.] [footnote : p. .] [footnote : captain parker snow has sent me the correspondence and some other documents. an account of his remarkable career will be found in the _review of reviews_ for april . the case is reported in the _times_ of december , .] [footnote : _liberty, equality, fraternity._] [footnote : reprinted in _essays by a barrister_.] [footnote : see especially his article upon 'jurisprudence' in the _edinburgh review_ for october .] [footnote : reprinted in _essays by a barrister_.] [footnote : it is characteristic that although in april i find him saying that he is at the end of 'two years of as hard and unremitting work as ever he did in his life,' i am quite unable to make out why the years should be limited to two: and certainly the work became no lighter afterwards.] [footnote : chap. vi. in first edition, p. .] [footnote : dr. williams printed privately some _hints to my counsel in the court of arches_, of which mrs. williams has kindly sent me a copy. he declares that he 'accepts the articles as they are, and claims to teach them with fidelity and clearness unsurpassed by living man.' no one, i think, can doubt his perfect sincerity. the 'hints' probably suggested some of the quotations and arguments in my brother's defence'; but there is no close coincidence. dr. williams cordially expressed his satisfaction with his counsel's performance.] [footnote : _defence_, pp. , .] [footnote : _defence_, p. .] [footnote : the substance of much of this paper is given in an article called 'women and scepticism' in _fraser's magazine_ for december .] [footnote : _fraser's magazine_, february .] [footnote : _pall mall gazette_, october , . i shall speak of his contributions to this paper presently.] [footnote : _pall mall gazette_, november , .] [footnote : mr. froude promised me some recollections of this intimacy; but the promise was dissolved by his death in .] [footnote : preface.] [footnote : see 'bentham' in _horæ sabbaticæ_, iii. - , published originally about this time.] [footnote : _view of criminal law_, p. .] [footnote : e.g. _works_, vii. , &c.] [footnote : see articles on courts-martial in _cornhill_ for june .] [footnote : _view of criminal law_, p. .] [footnote : _view of criminal law_, p. .] [footnote : one of his smartest phrases was occasioned by mr. greg declaring himself to be a christian. he was such a christian, said fitzjames, as an early disciple who had admired the sermon on the mount, but whose attention had not been called to the miracles, and who had died before the resurrection.] [footnote : contributions of james fitzjames stephen to the _pall mall gazette_ (kindly sent to me by mr. george smith):-- dates articles occasional notes correspondence -- -- -- -- -- --] [footnote : 'liberalism,' january .] [footnote : mr. charles buxton was the first chairman, but resigned because he thought a prosecution of governor eyre inexpedient, though not unjust. see j. s. mill's _autobiography_, pp. - .] [footnote : it is substantially given in his _history of the criminal law_ ( ), i. - .] [footnote : _nuncomar and impey_, ii. .] chapter iv _india_ i. personal history fitzjames reached calcutta upon december , . henry cunningham had made the long journey from lahore to pay him a few days' visit. the whole time was devoted to an outpour of talk productive of boundless satisfaction to one--i suppose that i may say to both--of them. fitzjames stayed in india until the middle of april , and his absence from england, including the homeward and outward journeys, lasted for two years and a half. they were in some ways the most important years of his life; but they were monotonous enough in external incidents. i may briefly say that his wife joined him at calcutta in the beginning of march , and accompanied him to simla. they diverged to pay a visit on the way to the cunninghams at lahore. they stayed at simla till the end of october, where, for five or six weeks in may and june, fitzjames was laid up with a sharp attack of fever. this was his only illness in india, and the only interruption to work of more than a day or two's duration. on his return to calcutta he visited delhi, whence his wife returned to england for the winter. in april he went again to simla, and on the way thither was rejoined at allahabad by his wife. in the following november she returned to england, while he remained to spend the winter of - in calcutta and finish his official work. he started in the best of health and in a sanguine frame of mind. he wrote his first letter to his mother from boulogne (nov. , ). 'i cannot tell you,' he says, 'how perfectly happy i feel in all my prospects. i never was more sure in my life of being right.... a whole ocean of small cares and worries has taken flight, and i can let my mind loose on matters i really care about.' he writes a (fourth) letter to his mother between paris and marseilles in the same spirit. 'i don't know whether you understand it,' he says, 'but if i had said "no" to india, i should feel as if i had been a coward and had lost the right to respect myself or to profess the doctrines i have always held and preached about the duty of doing the highest thing one can and of not making an idol of domestic comfort.' he continued to write to his mother regularly, dictating letters when disabled from writing by his fever, and the whole series, carefully numbered by her from to , now lies before me. he wrote with almost equal regularity to other members of his family, of which he considered my sister-in-law, then miss thackeray,[ ] to be an adopted member; and occasionally to other friends, such as carlyle, froude, and venables. but to his mother he always devoted the first part of the time at his disposal. the pressure of work limits a few of these letters to mere assertions of his continued health and happiness; but he is always anxious to tell her any little anecdotes likely to interest her. i will give one of these, because it is striking in itself, and his frequent references to it showed how much it had impressed him. an english party, one of whom told him the story, visited a wild gorge on the brahmapootra, famous for a specially holy shrine. there they fell in with a fakeer, who had wandered for twenty years through all the holy places between the himalayas and cape comorin. he had travelled on foot; he had never lain down, and only rested at night by putting his arms through the loop of a rope. his body was distorted and his legs and arms wasted and painful. he came with a set of villagers to the shrine which was to be the end of all his wanderings; 'did poojah,' and so finished his task. the villagers worshipped him, and prepared a feast and a comfortable bed; but the fakeer looked sad and said, 'no! when i began my journey the goddess kali appeared to me and told me what i was to do. had i done it rightly, she would have appeared again to tell me that she was satisfied. now i must visit all the shrines once more,' and in spite of all persuasion he set out for another twenty years' penance. 'i assure you,' said the narrator, 'that i thought it very sad and did not laugh in the least.' 'was not that,' says fitzjames, 'a truly british comment?' these and other letters have one peculiarity which i shall not exemplify by quotations. there are some feelings, as i find my father observing in one of his own letters, which it is desirable 'rather to intimate than to utter.' among them many people, i think, would be inclined to reckon their tender affections for members of their own family. they would rather cover their strongest emotions under some veil of indirect insinuation, whether of playful caress or ironical depreciation, than write them down in explicit and unequivocal assertions. that, however, was not fitzjames's style in any case. his words were in all cases as straightforward and downright as if he were giving evidence upon oath. if he thinks ill of a man, he calls him bluntly a 'scoundrel' or 'a poor creature,' and when he speaks of those who were nearest and dearest to him he uses language of corresponding directness and energy. this method had certainly an advantage when combined with unmistakable sincerity. there could be no sort of doubt that he meant precisely what he said, or that he was obeying the dictates of one of the warmest of hearts. but point-blank language of this kind seems to acquire a certain impropriety in print. i must ask my readers, therefore, to take it for granted that no mother could have received more genuine assurances of the love of a son; and that his other domestic affections found utterance with all the strength of his masculine nature. 'i think myself,' as he sums up his feelings on one occasion, 'the richest and happiest man in the world in one of the greatest elements of richness and happiness'--that is, in the love of those whom he loves. that was his abiding conviction, but i shall be content with the general phrase. one other topic must be just touched. his daughter rosamond was at this time an infant, just learning to speak, and was with her mother at simla in both summers, where also his youngest daughter, dorothea, was born in . many of the letters to his mother are filled with nursery anecdotes intended for a grandmother's private reading, and certainly not to be repeated here. i mention the fact, however, because it was really significant. when his elder children were in the nursery, fitzjames had seen comparatively little of them, partly because his incessant work took him away from home during their waking hours, and partly because he had not been initiated into the charm of infantile playfulness, while, undoubtedly, his natural stiffness and his early stoicism made the art of unbending a little difficult. under the new conditions, however, he discovered the delightfulness of the relation between a bright little child and a strong grown-up man--at any rate when they are daughter and father. henceforward he cultivated more directly an affectionate intercourse with his children, which became a great source of future happiness. his correspondence, though active enough, did not occupy all his leisure on the journey. parting from home, he says in a letter written in the train near calcutta to his old friend venables, was 'like cutting the flesh off my bones'; and ten minutes after beginning his solitary journey from boulogne, he had sought distraction by beginning an article in the train. this was neither his first nor his last performance of that kind during the journey. he goes on to say that he had written twenty articles for the 'pall mall gazette' between the days of leaving england and of landing at bombay. 'with that and law i passed the time very pleasantly, and kept at bay all manner of thoughts in which there was no use in indulging myself.' to pour himself out in articles had become a kind of natural instinct. it had the charm, if i may say so, of a vice; it gave him the same pleasure that other men derive from dramdrinking. 'if i were in solitary confinement,' he says, 'i should have to scratch newspaper articles on the wall with a nail. my appetite, natural or acquired, has become insatiable.' when he had entered upon his duties at calcutta he felt that there were objections to this indulgence, and he succeeded in weaning himself after a time. for the first three or four months he still yielded to the temptation of turning out a few articles on the sly; but he telegraphs home to stop the appearance of some that had been written, breaks off another in the middle, and becomes absorbed in the official duties, which were of themselves quite sufficient to satiate any but an inordinate appetite for work. work, he says, is 'the very breath of my nostrils'; and he fell upon his official work greedily, not so much in the spirit of a conscientious labourer as with the rapture of a man who has at last obtained the chance of giving full sway to his strongest desires. the task before him surpassed his expectations. his functions, he says, are of more importance than those discharged by the lord chancellor in england. he compares himself to a schoolboy let loose into a pastrycook's shop with unlimited credit. the dainties provided, in the way of legislative business, are attractive in kind and boundless in quantity. the whole scene impresses him beyond expectation and calls out all his powers. one frequent subject of remark is the contrast between the work and the men who have to do it. the little body of englishmen who have to rule a country, comparable in size and population to the whole of europe without russia, seem to him to combine the attributes of a parish vestry and an imperial government. the whole civil service of india, he observes, has fewer members than there are boys at one or two of our public schools. imagine the eton and harrow boys grown up to middle age; suppose them to be scattered over france, spain, italy, germany, and england; governing the whole population, and yet knowing all about each other with the old schoolboy intimacy. they will combine an interest in the largest problems of government with an interest in disputes as petty as those about the rules of eton and harrow football. the society is, of course, very small and mainly composed, as every society must be composed, of commonplace materials. writing to miss thackeray during the outward voyage, he says that he will trespass upon her province and try to describe his companions. among them are a set of 'jolly military officers 'who play whist, smoke and chaff, and are always exploding over the smallest of jokes. they are not like the people with whom he has hitherto associated, but he will not depreciate them; for they know all kinds of things of which he is ignorant, and are made, as he perceives, just of the 'right kind of metal to take india and keep it.' in a letter to venables, written a few months later, he describes his position as a sort of 'benthamee lycurgus,' and sets forth the problem which he is trying to solve in an official document then in course of preparation: 'given corrupt natives, incompetent civilians, and a sprinkling of third-rate barristers, how to get perfect judges.' his estimate, indeed, of the merits of the indian services, considered collectively, was the highest possible. he speaks of them not merely with appreciation but with an enthusiasm such as might have been generated in other men by a life passed in india. in his last speech to the council he said (and it was no more than he said in private), 'i have seen much of the most energetic sections of what is commonly regarded as the most energetic nation in the world; but i never saw anything to equal the general level of zeal, intelligence, public spirit and vigour maintained by the public service of this country.' nothing could gratify him so much as the belief that he had in some degree lightened their labours by simplifying the rules under which they acted. still, taken individually, they were average englishmen, with rather less than the average opportunities for general intellectual culture; and, like every other small society, given to personal gossip, which was not very interesting to a grave and preoccupied outsider. i find him on one occasion reduced to making remarks upon a certain flirtation, which appears to have occupied the minds of the whole society at simla; but as the prophecy upon which he ventures turned out to be wrong, there is a presumption that he had not paid proper attention to the accessible evidence. he naturally, therefore, found little charm in the usual distractions from work. the climate, though it did not positively disagree with him, was not agreeable to him; and he found the material surroundings anything but comfortable. 'i have here found out what luxury is,' he said to a friend in calcutta on his first arrival; 'it is the way in which i used to live at home.' the best that could be done in india was by elaborate and expensive devices to make up a bad imitation of english comforts. 'as for the light amusements,' he says, they are for the most part 'a negative quantity.' when he is passing the winter by himself in calcutta, he finds evening parties a bore, does not care for the opera, and has nobody with whom to carry on a flirtation--the chief resource of many people. he has, therefore, nothing to do but to take his morning ride, work all day, and read his books in the evening. he is afraid that he will be considered unsociable or stingy, and is indeed aware of being regarded as an exceptional being: people ask him to 'very quiet' parties. he sticks to his 'workshop,' and there he finds ample employment. he was, indeed, too much in sympathy with sir g. cornewall lewis's doctrine that 'life would be tolerable but for its amusements' not to find a bright side to this mode of existence. a life of labour without relaxation was not far from his ideal. 'the immense amount of labour done here,' he says, 'strikes me more than anything else. the people work like horses, year in and year out, without rest or intermission, and they get hardened and toughened into a sort of defiant, eager temper which is very impressive.... i am continually reminded of the old saying that it is a society in which there are no old people and no young people. it certainly is the most masculine middle-aged, busy society that ever i saw, and, as you may imagine, i don't like to fall behind the rest in that particular.' he laboured, therefore, hard from the first--even harder as time went on; and came to feel the strongest sympathy with the energetic spirit of the body of which he was a member. he made some valued friends in india; chief among whom, i think, was sir john strachey, of whom he always speaks in the warmest terms, and whose friendship he especially valued in later years. another great pleasure was the renewed intercourse with the cunninghams, who were able, in one way or another, to be a good deal with him. but he had neither time nor inclination for much indulgence in social pleasures. it will be seen, therefore, that the indian part of my story must be almost exclusively a record of such events as can take place within the four walls of an office. i shall have nothing to say about tiger-shooting, though fitzjames was present, as a spectator, at one or two of lord mayo's hunting parties; nor of such social functions as the visit of the duke of edinburgh, though there, too, he was a looker-on; nor of indian scenery, though he describes the distant view of the himalayas from simla, by way of tantalising an old alpine scrambler. he visited one or two places of interest, and was especially impressed by his view of the shattered wall of delhi, and of the places where his second cousin, hodson, had seized the king and shot the princes. he wrote a description of these scenes to carlyle; but i do not think that he was especially strong in descriptive writing, and i may leave such matters to others. what i have to do is to give some account of his legislative work. i recognise my incompetence to speak as one possessing even a right to any opinion upon the subject. my brother, however, has left in various forms a very full account of his own performances,[ ] and my aim will be simply to condense his statements into the necessary shape for general readers. i shall succeed sufficiently for the purpose if, in what follows, i can present a quasi-autobiographical narrative. i will only add that i shall endeavour to observe one condition, which i know would have been scrupulously observed by him--i mean the condition of not attributing to him any credit which would properly belong to others. his work formed part of a process, carried on both by his predecessors and successors; and it is not always possible to distinguish his share from that of others.[ ] ii. official work in india a demand for codification was among the traditions of the utilitarians. bentham, born in , had preached to deaf ears during the eighteenth century; but in the first quarter of the nineteenth he had gathered a little band of disciples, the foremost of whom was james mill. the old philosopher had gradually obtained a hearing for his exhortations, echoed in various forms by a growing, confident, and energetic body, and his great watchword was 'codify.' he had found hearers in foreign countries, especially in russia, spain, and various american states; but his own countrymen had been among the last to listen. gradually, however, as the passion and prejudice of the war period passed away and the movement which culminated in the reform bill of gathered strength, it became apparent that the stubborn conservatism, even of the great tacit corporation of lawyers, would have to yield. the supremacy of eldon was beginning to be shaken. sir robert peel began to reform the criminal law about , taking up the work upon which bentham's friend and disciple, romilly, had laboured for years with infinitesimal results. commissions were appointed to work upon legal reforms. with parliamentary reform an era of rapid and far-reaching changes set in, though bentham died on the eve of entering the land of promise. when, therefore, the charter of the last india company was renewed in , it was natural that some place should be found for codification. james mill, upon whom bentham's mantle had fallen, held a leading position at the india house, and his evidence before a parliamentary committee had an important influence in determining the outlines of the new system. one of the four members of the council of the governor-general was henceforth to be appointed from persons not servants of the company. he was to attend only at meetings for framing laws and regulations. macaulay, the first holder of this office, went to india in and prepared the penal code. one of his assistants, c. h. cameron, was an ardent benthamite, and the code, in any case, was an accomplishment of benthamite aspirations. this code, says fitzjames, 'seems to me to be the most remarkable, and bids fair to be the most lasting monument of its principal author. literary fashions may change, but the penal code has triumphantly stood the ordeal of twenty-one years' experience; and, though composed by a man who had scarcely held a brief, has been more successful than any other statute of comparable dimensions.'[ ] the code, however, slept for many years in a pigeon-hole--a fact which fitzjames considers[ ] to be a most striking proof of the reluctance of the english government to interfere in any way with native institutions. we rubbed on, it seems, with a sort of compromise between english and mahommedan criminal law until , when the code, after a careful revision by sir barnes peacock, was finally passed into law. that, says fitzjames, was a singular piece of good fortune. 'an ideal code ought to be drawn by a bacon and settled by a coke'; it should combine the highest qualities of literary skill and technical knowledge. thus drawn, the code became the first specimen of an 'entirely new and original method of legislative expression.' it served as a model for all the later indian codes. its method is first to state the 'leading idea' in the most pointed and explicit form; then to give a definite explanation of any terms which admit of a possible doubt; then to give equally definite exceptions; and, finally, to illustrate the whole by applying it to a number of concrete cases.[ ] in macaulay's hands the legal document, freed from the endless verbiage, circumlocution and technicality of english statutes, became a model of logical precision, and was even entertaining as a piece of literature. the passage of this code was part of a systematic process of codification. an indian law commission, sitting in england, had been appointed in to carry on the work of consolidating the law. the suppression of the mutiny and the dissolution of the company were naturally followed by various administrative and legislative reforms. a code of civil procedure was passed in , and a code of criminal procedure, as a necessary supplement to the penal code, in . in maine went out as legislative member of the indian council, and carried on the work of codification in combination with a new law commission, appointed in . the commission ultimately fell out with the indian government, and finally resigned in . they seem to have been of opinion that there was undue delay in passing the bills which they prepared. meanwhile, fitzjames took up various measures which had been left incomplete, and carried them to completion. before specifying them so far as will be desirable, i must say something of the machinery by which they were converted into law. this, as will be seen, greatly impressed fitzjames by its total dissimilarity to the process of legislation under our own parliamentary system. the legislative council consisted, under an act passed in , of the viceroy, the commander-in-chief, the governor of the province in which the council sits, of five ordinary members, and of additional members--not less than six and not more than twelve in number--half of whom must be non-official. the maximum number possible would therefore be twenty. the viceroy, the commander-in-chief, and the five ordinary members conducted the whole executive government of the country. the 'legislative department' consisted of a 'secretary to the council of the viceroy, for the purpose of making laws and regulations.' the secretary during fitzjames's tenure of office was mr. whitley stokes, who had already served under maine. during mr. stokes's absence on leave for the last year of fitzjames's service, his place was taken by henry cunningham. the member of council and the secretary drew almost all the bills required. it must be noticed that proposals for legislation were not initiated by the department itself. this principle, says fitzjames, 'was scrupulously observed both by sir henry maine and myself.' they did not originate a single measure, except those which repealed, consolidated, and re-enacted existing laws. when a bill had been drawn and introduced into council, it was circulated to be criticised by the local governments and by district officers, or by persons whose interests might be affected. a special committee was appointed to go through the act, clause by clause, and consider the suggestions and criticisms which had been received. in the case of one act, it is mentioned that the materials thus collected formed a volume of closely printed pages of minute criticism upon every section of the bill. the committee made such changes as appeared desirable in view of these comments, and the bill, after being in some cases reprinted, published, and circulated, was again brought before the council. a discussion then took place and amendments might be proposed. when these had been accepted or rejected, the bill was passed and became law upon receiving the assent of the viceroy, though it might still be disallowed by the secretary of state in council. a code, or even a measure which is to form part of a code, should be a work of art--unequivocal in language, consistent in its logic, and luminous in its arrangement. like other works of art, therefore, it must be essentially the product of a single mind. it is as impossible, as fitzjames often repeats, for a number of people to make a code as for a number of artists to paint a picture. the legal artist requires, indeed, to receive information from numerous sources, and to be carefully and minutely criticised at every point by other experts and by the persons whose interests are affected. but the whole can only be fused into the necessary unity by passing through a single understanding. these conditions were sufficiently secured by the preliminary processes just described. nor was there any risk that a measure should lose its symmetry in the process of passing through the council. the council was composed of men capable, on the one hand, of judging of the expediency of the general policy involved, and willing, on the other hand, to trust for details to the official in charge of the measure, without any desire for captious interference with details. it consisted largely of men, each of whom had important duties to discharge, and was anxious to facilitate the discharge of duties by his colleagues. it was emphatically a body which meant business, and had no temptation to practise the art of 'not doing it.' there is a quaint contrast, therefore, between the reports of the debates in council and those which fill the multitudinous pages of hansard. the speeches, instead of being wordy appeals to constituents, are (so far as one can judge from the condensed official reports) brief logical expositions of the leading principles involved, packing the essential arguments into the briefest possible space. when a body such as the british parliament undertakes to legislate, it has certain weaknesses too familiar to require much exposition. if a measure is not adapted to catch the popular ear, it is lucky, however great may be its real importance, in obtaining a hearing at all. it may be thrust aside at any moment by some of the storms of excitement characteristic of a large body agitated by endless party quarrels. many of the legislators are far less anxious to get business done than to get the doing of business. everyone who is crotchety, or enthusiastic, or anxious for notoriety, or desirous to serve a party or please a constituency, may set a hand to the work. a man, from the best of motives, may carry some impulsive suggestion. the measure may be tortured and worried out of shape by any number of alterations, moved without clear apprehension of the effect upon the whole. trifling details will receive an excessive amount of elaboration, and the most important proposals be passed over with precipitation, because the controversy becomes too heated and too complicated with personal interests to be decided upon reasonable grounds. the two evils of procrastination and haste may thus be ingeniously combined, and the result may be a labyrinth of legislative enactments through which only prolonged technical experience can find its way. i need not inquire what compensations there may be in the english system, or how far its evils might be avoided by judicious arrangements. but it is sufficiently clear what impression will be made upon anyone who tests a piece of legislative machinery by its power of turning out finished and coherent work which will satisfy legal experts rather than reflect the wishes of ignorant masses. i must now try to indicate more precisely the nature of the task in which fitzjames had to take a share. he gives a preliminary sketch in one of his first speeches.[ ] the law of british india was composed of different elements, corresponding to the process by which the trading company had developed into a sovereign power and extended its sway over an empire. there were, in the first place, the 'regulations' made in the three presidencies, bengal, madras, and bombay, before the formation of the legislative council in . then there were the acts of the legislative council which had since legislated for the whole of british india; and the acts of the subordinate legislatures which had been formed in the two presidencies in . besides these there were executive orders passed by the governor-general in council for the 'non-regulation' provinces (the north-western provinces, the punjab, oudh, the central provinces, and burmah). these had more or less introduced the same laws into the regions successively annexed, or such an approximation to those laws as was practicable, and dictated according to an accustomed formula by 'justice, equity, and good conscience.' certain doubts existed as to the precise legal character of these orders. their validity had been confirmed by the act of , but for the future all legislation was to be carried on by the councils. the laws were less numerous and complex than might be inferred from this enumeration. some were temporary in their nature and others repealed previous legislation. the first thing to be done was to ascertain what laws were actually operative; to repeal the useless and obsolete; and confirm others which, though useful, might be of doubtful validity. it would then become possible to consolidate and codify; so that for every subject there might be a single enactment, and for every province a single body of laws. much had been already accomplished in this direction under lord lawrence when maine was the legal member of council; and preparations had been made for carrying the process further. the measures in which fitzjames was more or less concerned were made necessary by these conditions. the old bengal regulations, made from to , are said to have been 'eminently practical and useful.' but they were made from time to time with a view to particular cases; and their language presupposed familiarity with a variety of facts, as to the position and mutual relations of the different members of the service, and so forth, which were constantly changing as the company developed, acquired new functions, and redistributed the duties of its subordinates. such a process naturally left room for gaps in the system which might reveal themselves with awkward results at critical moments. thus it turned out in the course of investigations made by the legislative department that nearly every criminal trial which had taken place in bengal and the north-western provinces since had been irregular. the result was that 'people had gone on being hung, transported, and imprisoned illegally for a period of probably nearly forty years.' no substantial injury had resulted, but as legal proceedings multiplied it was possible that awkward questions might be raised. an act was therefore passed in a day (may , ) sanctioning the system which had actually grown up, and confirming the previous acts. another illustration of the intricacy of the existing system was given by the law as to the civil courts in bengal. to discover what was the constitution of these courts you would have, says fitzjames (feb. , ) to begin by reading regulations iii. and iv. of , and to find out that, though most of them had been repealed, little bits of each remained in force. you would then have to note that, although these bits applied only to a certain small district, they had been extended in to certain other specified places, and in to the district ceded by the nawab nazim. what that district was might be ascertained from historical records. continuing such inquiries, you might discover, after consulting thirteen acts and regulations, what was the actual state of things. people, of course, really learnt such points by practice and conversation, though their knowledge would probably be in a nebulous condition. the whole system was put upon a clear footing in an act of thirty-eight sections, prepared by mr. cockerell, which was passed on february , . in these cases i imagine that the effect of the legislation was mainly to clear up the existing order and substitute a definite accessible law for a vague rule of thumb. elsewhere more serious problems were involved. upon the annexation of the punjab in it was necessary to establish at once a vigorous and cheap system of government. lord lawrence, with his brother henry and mr. mansel, were formed into a board of administration, and entrusted with dictatorial power. they were instructed to adopt as nearly as possible the system of law which has existed in the north-western provinces. that system, however, was vague and cumbrous, and it was impracticable to introduce it into the new province, which required far more rough and ready methods. lord lawrence and his colleagues proceeded therefore to draw up regulations. though these were necessarily crude and imperfect in the eyes of a thorough lawyer, they made it possible to introduce settled order and government, and were the first approach to codes in india. there remained, however, serious differences of opinion as to the degree of legal authority to which they were entitled. two of these codes were of great importance. in sir richard temple had prepared a handbook, under the direction of lord lawrence, which came to be known as the 'punjab civil code.' it was a lucid statement, although made by one who was not a specially trained lawyer, of the law supposed to exist in the punjab, with expositions of parts of the hindoo and mohammedan law. the question however, had never been finally settled whether it was merely a text-book or had acquired the force of law by the use made of it and by incidental references in official despatches. it included, for example, a kind of bankruptcy law, under which large amounts of property had been distributed; although, according to some opinions, the whole process was illegal. conflicting views were held by high authorities. 'as many as six or seven degrees of inspiration had been attributed to different parts of the code,' said fitzjames (march , ), 'as to the relation in which they stood to the rest.' in short, a book originally intended as a guide to administrators of the law had come to be a 'sort of semi-inspired volume,' with varying degrees of 'infallibility.' moreover, as it led to much litigation and many discussions, it had swelled from a small volume into 'one of those enormous receptacles of notes, comments, sections of acts, and general observations which pass in england under the name of legal text-books.' (september , .) in order to clear up the confusion, mr. d. g. barkley had been directed by the lieutenant-governor of the punjab to prepare a volume containing all the regulations which were supposed to have actually the force of law. many of these were only accessible in official archives. this volume filled closely printed pages, besides various schedules. when carefully examined by fitzjames this was reduced to an act of fifty-eight sections, and the question as to authority finally set at rest. a still more important part of the punjab administration dealt with the land revenue. this, of course, touches the most vital part of the whole system of british government. a famous 'regulation, vii. of ,' had laid down the general principles of land-revenue law. but it was in itself ambiguous, and there were great doubts as to whether it extended to the punjab, or whether the administrators of the punjab had full power to lay down such rules as they pleased, subject only to the direction to take the regulation for a model as far as applicable. different views were taken by the courts of law and by the governors; some opinions would tend to show that the whole series of administrative acts had been illegal, and out of this difficulty had arisen an acrimonious controversy in upon punjab tenancy. meanwhile various 'instructions' had been issued by the executive, and two books, written by mr. thomason, gave directions to 'settlement officers' and 'collectors.' these, says fitzjames, were 'almost if not quite the best law-books that have ever come under my notice.' they were, however, written from an administrative, not from a legal point of view. in order to ascertain the actual state of things mr. robert cust was instructed to draw up a revenue-code, and forwarded his draft to the legislative department in . the law, as mr. cust stated in this document, was 'in a state of lamentable and, to those not trained to the study, unintelligible confusion.' his draft contained sections, filling quarto pages of small type. it was swelled, however, by a large quantity of detail, dealing with matters which might be left to the discretion of executive officers. the draft was carefully considered by a committee, including the most experienced officials, and in consultation with the actual revenue authorities in the punjab. a measure of moderate dimensions was framed in accordance with their views and passed on october , . one of the critics of the bill observed that it had been thus reduced to a 'set of affecting commonplaces.' fitzjames replies that, in point of fact, the bill was meant precisely to lay down general principles, leaving details to be settled by the local authorities. one proposal made by him which, as sir r. temple observed, showed his 'breadth of view and root and branch grasp of the subject,' indicates the importance of the matter. substantially it was to make the record of rights, established for the purposes of the revenue, a conclusive evidence (under certain precautions) of the titles of the various persons interested in the land. this was modified on the ground that it was not suited to the tastes of the natives; who, it was said, rather preferred that matters should be left 'at a loose end,' instead of being definitely wound up once for all. this act, together with the act previously mentioned, put an end to 'one of the strangest pieces of intricacy and confusion to be found in indian law.'[ ] another enactment curiously illustrates some practical results of the undefined degree of authority of the laws in the punjab. four hundred years ago--so runs a possibly mythical legend--a certain man was ploughing in a field. the wife of a rich banker was bathing not far off, and laid her necklace of pearls on the bank. a crow took it up and dropped it in the ploughman's field. he presented it to his wife, and proceeded to reason upon the phenomenon. the fowls of the air, he reflected, neither ploughed nor sowed, but they managed to pick up valuables. why should he not show a similar trust in providence? he resolved to set up as a freebooter, made proselytes, and finally became the ancestor of a clan. his tribe were moral and decent people at home; they had their religious rites, initiated their children solemnly, and divided their earnings on system. after setting aside - / per cent. for the gods, per cent. was divided between the chief and the thief, while the remainder went to the tribe at large. their morality, however, was conterminous with the limits of the clan. they considered themselves to be in hobbes's 'state of nature,' with regard to other men. they wandered far and wide through india, and made enough to live in greater comfort than could be got out of legitimate occupations. they were only one among other more important and dangerous tribes of criminals, who adopted the same judicious principle of carrying on their operations at a distance from their homes. the punjab government had dealt with these tribes by registering them, compelling them to live within certain limits, and settling them upon waste lands. it had been discovered, however, that these regulations were beyond the powers of the executive. the system had to be abandoned and the tribes promptly returned to their old practices. when members of another well-known criminal tribe were arrested on the eve of one of their operations, they were set at liberty by a judicial decision. the proof, it appears, ought to have conformed to the precedent set by certain trials of fenians in england. a measure was therefore introduced giving power to restore the system which had been previously successful; and sanctioning similar measures in regard to a more atrocious set of criminals, certain eunuchs who made a system of kidnapping children for the worst purposes. it was passed october , . the case illustrates the most obvious difficulties of our position in india. i suppose that the point of view of thugs and of these respectable robbers seems perfectly obvious and natural to them; but the average englishman cannot adopt it without a considerable mental effort. in such cases, however, we might at least reckon upon the support of those who suffered from predatory tribes. but there was another department of legislation in which we had to come into conflict with the legal and religious ideas of the great mass of the population. the british rulers of india had been, with sufficient reason, exceedingly cautious in such matters. their power might crumble to pieces, if it were once believed that we intended to assail directly the great religions of the country, and in india law, custom, and religion are only different aspects of the same thing. in certain cases we had at last resolved to suppress practices which offended the european code of morals. under the bengal regulations, the practice of burning widows had been forbidden. another series of acts began by the passage of an act in which provided that no one should suffer any legal forfeiture of rights for having ceased to belong to any religious community. this act was passed in face of vehement opposition and petitions signed by , natives in and around calcutta. it practically pledged us to maintain freedom of conscience in matters of religion. it was followed by other measures involving the same principle. in , the re-marriage of hindoo widows was legalised, and in , native converts to christianity were enabled to obtain a divorce from wives or husbands who abandoned them in consequence of their religious change. another act of , drawn by the indian law commission, regulated the law as to succession to property and the testamentary powers of persons who were not members of any of the native religious communities, and thus recognised that such people had a legitimate legal status. from another application of the same principles arose a proposal in regard to which fitzjames had to take a conspicuous part. it formed the subject of a very warm debate in the council, the only debate, indeed, which faintly recalls english parliamentary discussions. fitzjames, in particular, made two speeches which suggest that he might have been an effective party-leader, and are, in various ways, so characteristic that i must notice them at some length. the sect of brahmos, founded by ram mohun roy, was one result of the influence of european ideas on india. it had come to be the most important movement of the kind. it roughly corresponds, i imagine, to english unitarianism, being an attempt to found a pure theistic religion without the old dogmatic system. like almost all religious movements, it might be considered either as an innovation or as an attempt to return to a primitive creed by throwing off the corrupt accretions. the sect, like others, had split into two bodies, the conservative brahmos, who wanted to put new wine into old bottles, and the progressive brahmos, who desired new bottles as well as new wine. both of them disapproved in different degrees of the hindoo ceremonials. the question had arisen whether they could form legal marriages, and the doubts had been rather increased than diminished by an opinion obtained by the progressive brahmos from the advocate-general, mr. cowie. thereupon they applied to government. maine, who was then ( ) in office, came to the conclusion that they had had a real grievance. their creed, briefly, would disqualify them from marrying, whereas we were committed to the principle that varieties of creed should entail no civil disqualifications. maine accordingly prepared a bill to remove the injustice. he proposed to legalise the marriage of all persons (not christian) who objected to conform to the rites of the various religions of the country. the knot would be cut by introducing civil marriage into india generally for all who preferred it. this proposal, however, met with general disapproval when the draft was circulated among the local authorities. the ground of objection was that it would introduce too great a change into native customs. it would enable a man to 'play fast and loose' with his religion; to cease, for example, to be a hindoo for the purpose of marrying, and to be a hindoo again when he had married. the government admitted that this objection was conclusive. when fitzjames became member of council, the matter was still under discussion, and it became his duty to prepare a bill, which he introduced to the council in march . this measure avoided the difficulty by providing a form of marriage for the brahmos alone. to this, however, he found to his surprise that the conservative brahmos objected. the essential difficulty was that of every 'denominational' system. the bill would give a certain legal status to a particular sect. we should then be bound to provide similar measures for any new sects that might arise and for marriages between adherents of different creeds. there would have to be a 'jungle of marriage acts.' and besides this there would be the difficulty of defining by law what a brahmo precisely was--whether the progressives or the conservatives were the real brahmos, and so forth. finally, fitzjames resolved to bring in an act resembling maine's, but with this difference, that anyone who took advantage of it must declare that he (or she) was neither a hindoo, nor a mohammedan, nor a parsee, nor a sikh, nor a jaina, nor a buddhist, nor a christian, nor a jew.[ ] this measure would be applicable to any persons whatever who might hereafter abandon their traditional religion, but it would not enable anyone to break the laws of a religion to which he still professed to belong. fitzjames explained his views very fully upon introducing the measure on january , . the debate was then adjourned, and upon march other members of the council made various criticisms to which he again replied at some length. these two speeches give the fullest statement of his views upon a very important question. they deal in part with some purely legal questions, but i shall only try to give the pith of the views of policy which they embody. i may briefly premise that the ground taken by his opponents was substantially the danger of shocking native prejudices. the possibility that the measure would enable rash young men to marry dancing-girls out of hand was also noticed, but, i fancy, by way of logical makeweight. it was admitted that the brahmos had a claim, but it was strongly urged that it would be enough if, in accordance with the former proposal, an act were passed dealing with them alone. one member of the council, i notice, complains that the demand is associated with talk about 'nationality,' 'fraternity,' and 'equality'--a kind of talk for which fitzjames had remarkably little sympathy. it is of the more importance to point out what were the principles which he did admit. his main contention was simple. maine, he said, was absolutely right in deciding that, where an injustice was proved to exist, we should not shrink from applying a remedy. 'i think that one distinct act of injustice, one clear instance of unfaithfulness to the principles upon which our government of india depends, one positive proof that we either cannot or will not do justice to all classes, races, creeds or no-creeds, in british india would in the long run shake our power more deeply than even financial or military disaster. i believe that the real foundation upon which the british empire in this country rests is neither military force alone, as some persons cynically assert' (though such power is no doubt an indispensable condition of our rule), 'nor even that affectionate sympathy with the native population, on which, according to a more amiable, though not, i think, a truer view of the matter, some think our rule ought to rest--though it is hardly possible to overrate the value of such sympathy, where it can by any means be obtained. i believe that the real foundation of our power will be found to be an inflexible adherence to broad principles of justice common to all persons in all countries and all ages, and enforced with unflinching firmness in favour of, or against, everyone who claims their benefit or who presumes to violate them, no matter who he may be. to govern impartially upon these broad principles is to govern justly, and i believe that not only justice itself, but the honest attempt to be just, is understood and acknowledged in every part of the world alike.' in the next place the principle of religious equality, 'properly understood, is just as much one of these principles as the principle of suppressing war, famine, and crime.' properly understood it means that all sects are to be encouraged and, if necessary, are to be compelled to live in peace with each other; and not to injure those who change their religion. this is the principle, moreover, which we have practically adopted, and which is indeed necessary under the circumstances. the native marriage law is 'personal,' not territorial. it depends upon a man's religion, not upon the place of his abode. hence you must choose between forbidding a man to change his religion and permitting him to change his law. but to forbid conversion would be obviously impossible, and we in fact allow christian converts to change their legal status. why is not a similar liberty to be granted to others who have abandoned their religion? because christianity is true and all other religions false? that would be the only relevant answer, and many people would really like to give it; but it is refuted by stating it. we cannot attack the hindoo or mohammedan religions. if, therefore, we took this ground, we should simply have a conspiracy of four or five dominant sects, each denouncing the others as false, but all agreeing to worry and oppress all outsiders. such a position is impossible for us. the real objection to the bill was simply that it recognised the fact that many persons had abandoned their religion; and also recognises the fact that they had a right to abandon it. here, then, is one of the cases in which the argument from native opinion must be faced. 'it is a grave thing to legislate in opposition to the wishes of any section of the native community; but it is also a grave, a very grave thing for the government of india deliberately to abstain from doing that which it has declared to be just and right.' if you help the brahmos alone, what will you say to the 'radical league,' which repudiates all religious belief? when they ask to have their marriages legalised, will you reply, 'you are a small body, and therefore we will do you an injustice'? this is one of the ultimate points which we are forced to decide upon our own convictions. religious liberty and equality can be no more reconciled with hindoo and mohammedan orthodoxy than with some forms of catholicism. but it is impossible to say that we will not do that which we admit to be urgent because we are afraid of orthodox mohammedans and hindoos. and here is the answer to one member who made light of telling a converted young man of enlightened mind that, unless he saw his way to being a christian, he might be ordered to conform to the customs of his forefathers. it was better that he should make the sacrifice, than that the minds of the masses should be disquieted. was there, he asked, any real hardship in that? yes, replies fitzjames, there would be the greatest and most cruel injustice. 'it would be a disgrace to the english name and nation.' a young man goes to england and wins a place in the civil service. he learns from an english education to disbelieve in his old creeds; and when he goes back you tell him that he shall not be capable of marriage unless he will either falsely pretend to be a christian, or consent to have his tongue burned with a red-hot iron and drink cow's urine in order to regain his caste. one of the native correspondents had complained rather naïvely that the law would be used to enable a man to escape these 'humiliating expiations.' would they not be far more humiliating for english legislation? what did you mean, it would be asked, by your former profession that you would enforce religious equality? what of the acts passed to secure the immunity of all converts from legal penalties? were they all hypocritical? i would rather submit to the displeasure of orthodox hindoos, says fitzjames, than have to submit to such taunts as that. 'the master objection against the bill, of which the rest are but shadows, and which unites in opposition to it men who mutually denounce each other's creeds, and men who despise those who care enough about religion to be unwilling to call that sacred which they hold to be a lie, is that it will encourage unbelief.' that may be a fair argument from hindoos and mohammedans; but it is strange in the mouths of those who maintain missionary societies and support schools and colleges--english education 'leads straight away from all points of native orthodoxy.' 'how can we sow the seed and refuse to recognise the crop?' when we have shut up our schools, renounced our famous legislation, permitted infanticide and _suttee_, we may get credit for sincerity in the objection; 'till then people will say that what we really fear is not the spread of unbelief, but the hostility of believers.' for such hypocrisy fitzjames could never feel anything but a righteous contempt. i must now turn to the important legislative measures which were more essentially a part of the general system of codification. a code of civil procedure had been passed in , and codes of criminal law and criminal procedure in and . the indian law commission had also prepared laws upon contract and evidence, which were still under consideration; fitzjames had to carry the process one stage further. in regard to the famous penal code, of which he always speaks with enthusiasm, his action was confined to filling up a few omissions. the case of a convict in the andaman islands, for example, who had made a desperate attempt to murder a gaoler, and could receive no further punishment because he was already sentenced to imprisonment for life, the maximum penalty for attempts to murder, suggested a flaw. such offences were henceforth to be punishable by death. the only point of general interest was the case of seditious libels. a clause, prepared for the original bill, had been omitted by an unaccountable accident. maine had already been in correspondence with sir barnes peacock upon this subject in . when, however, in the summer of , fitzjames proposed the insertion of a clause, it was supposed that he had hastily prepared it in consequence of certain reported disturbances in the previous spring. he was, therefore, taunted with having been a member of the 'fourth estate,' and now desiring to fetter the liberty of the press. he therefore confessed, and it must be admitted that it required less courage in him than it had required in his grandfather to confess, to the sin of having written for the newspapers. in point of fact, however, as he pointed out, the proposed section, which was from the original draft of the case as framed by the commission, was less severe than the english law. briefly, a man was to be punishable for writings of which it was the obvious intention to produce rebellion. a journalist might freely abuse officials and express disapproval of a particular measure, such, for example, as a tax. the disapproval, again, might tend to general disaffection. but unless there were a direct intention to stimulate resistance to the law, he would not be guilty. fitzjames thought that to invoke the phrase 'liberty of the press' in order to permit direct provocatives to crime, whether against the public or against individuals, was a grave misapplication of popular phrases. upon another closely connected subject, fitzjames, if he originated little, spent a very great deal of labour. the penal code had been necessarily followed by a code of criminal procedure, which defined the whole system of the english administration of justice in india.[ ] courts of justice had been gradually introduced when the british establishments were mere factories, and had gradually grown up, as our power increased and the borders of the empire widened, into a most elaborate and complex organisation. although, in a general way, the english institutions had served as a model, it had diverged very far from its originals. the different classes of indian magistrates are carefully graded; there is a minute system for subordinating the courts to each other; they are superintended in every detail of their procedure by the high courts; and, in brief, the 'indian civilians are, for the discharge of all their judicial and other duties, in the position of an elaborately disciplined and organised half-military body.' such words would obviously be inapplicable to the english magistrate. while, therefore, the penal code was in the main a version of english law, the code of criminal procedure defined the various relations and processes of an official body entirely unlike anything existing in england. the code originally passed in had been amended by an act of , and fitzjames observed (june , ) that he proposed a reform which was 'almost typographical.' the two laws might, as the law commission had suggested, be combined in one by slightly altering their arrangement; though the opportunity might be taken of introducing 'a few minor alterations.' on december following, however, he announces that he has now examined the code and had never read 'a more confused or worse-drawn law' in his life. he proceeds to show by various illustrations that the subjects treated had been mixed up in such a way as to make the whole unintelligible. he had been obliged to put off the attempt to understand it till he could get information from outside. he had, however, prepared a draft of the bill, and a committee was appointed to consider it. the measure did not finally come before the council until april , . he then observes that he has not had the presumption to introduce 'modifications of his own devising into a system gradually constructed by the minute care and practical experience of many successive generations of indian statesmen.' he has regarded himself 'less as the author of the bill than as the draftsman and secretary of the committee by whom all the important working details have been settled.' he has been in the position of the editor of a law-book, arranging as well as he could, but not introducing any new matter. to attempt any sudden changes in so complex a machinery, which already strains so severely the energies of the small number of officials employed in working it, would be inevitably to throw the whole out of gear. this committee, he says,[ ] which included men of the widest indian experience, such as sir g. campbell, sir r. temple, and sir john strachey, met five days in the week and usually sat five hours a day, and the process continued for 'some months.' they discussed both substance and style of every section, and examined all the cases decided by the courts which bore upon the previous code. these discussions were all carried on by conversations round a table in a private room. 'the wonderfully minute and exact acquaintance with every detail of the system' possessed by the civilians 'made an ineffaceable impression' upon his mind. they knew, 'to a nicety, the history, the origin and object of every provision in the code.' the discussions were consequently an 'education not only in the history of british india but in the history of laws and institutions in general. i do not believe,' he says, 'that one act of parliament in fifty is considered with anything approaching to the care, or discussed with anything approaching to the mastery of the subject with which indian acts are considered and discussed.' when the committee had reported, the code was passed into law 'after some little unimportant speaking at a public meeting of the council,' (which turned, i may say, principally upon the question of the policy of allowing native members of the service to sit in judgment upon europeans). 'this was possible, because in india there are neither political parties nor popular constituencies to be considered, and hardly any reputation is to be got by making speeches. moreover, everyone is a man under authority, having others under him.' a condensed account of the code and the institutions which it regulates will be found in fitzjames's 'history of the criminal law,' from which i quote these words: 'if it be asked,' he says, 'how the system works in practice, i can only say that it enables a handful of unsympathetic foreigners (i am far from thinking that if they were more sympathetic they would be more efficient) to rule justly and firmly about , , persons of many races, languages, and creeds, and, in many parts of the country, bold, sturdy, and warlike. in one of his many curious conversations with native scholars, mr. monier williams was addressed by one of them as follows: "the sahibs do not understand us or like us; but they try to be just and do not fear the face of man." i believe this to be strictly true.' 'the penal code, the code of criminal procedure, and the institutions which they regulate, are somewhat grim presents for one people to make to another, and are little calculated to excite affection; but they are eminently well calculated to protect peaceable men and to beat down wrongdoers, to extort respect and to enforce obedience.' the code was re-enacted in under the care of mr. whitley stokes. it was then extended to the high courts, which had been previously omitted, and alterations were made both in arrangement and in substance. of these alterations fitzjames says that he does not consider them to be improvements; but upon that point i am not competent to form any opinion. closely connected with the subject of procedure was another which was treated in his most original and valuable piece of legislation. the indian law commission had in sent out the draft of an 'evidence act,' which was circulated among the local governments. it was unanimously disapproved as unsuitable to the country. it presupposed a knowledge of english law, and would not relieve indian officials from the necessity of consulting the elaborate text-books through which that law was diffused. fitzjames, therefore, prepared a new draft, which was considered by a committee in the winter of - , and after their report at the end of march was circulated as usual. it was finally passed on march , , and a full account of the principles is given in his speeches of march , , and march , . i have already spoken of his treatment of the law of evidence in the 'view of the criminal law.' i will here point out the special importance of the subject under the conditions of indian legislation. in the first place, some legislation was necessary. an evidence act, already in existence, embodied fragments of english law. it would still be in force, inasmuch as english officials were directed, according to the sacred formula, to decide by 'equality, justice, and good conscience.' these attractive words meant practically 'an imperfect understanding of an imperfect recollection of not very recent editions of english text-books.' something might be said for shrewd mother-wit, and something for a thorough legal system. but nothing could be said for a 'half and half system,' in which a vast body of half-understood law, without arrangement and of uncertain authority, 'maintains a dead-alive existence.' we had therefore to choose between a definite code, intelligible to students, who would give the necessary attention, and no code at all. the evidence bill, said one eminent colleague, ought to consist of one clause: 'all rules of evidence are hereby abolished.' against this attractive proposal fitzjames argues substantially as he had argued in the 'view.' rules of some sort have always been found necessary. daniel's feeble 'cross-examination of the elders in the case of susannah' illustrates the wonder with which people once regarded methods of testing evidence now familiar to every constable. in later periods all manner of more or less arbitrary rules had been introduced into simple codes, prescribing, for example, the number of witnesses required to prove a given fact. the english system, although the product of special historical developments, had resulted in laying down substantially sound and useful rules. they do in fact keep inquiries within reasonable limits, which, in courts not guarded by such rules, are apt to ramble step by step into remoter or less relevant topics, and often end by accumulating unmanageable masses of useless and irritating scandals. moreover, they would protect and guide the judges, who, unless you prohibited all rules whatever, would infallibly be guided by the practice of english courts. to abolish the rules of evidence would be simply to leave everything 'to mere personal discretion.' moreover, the rules have 'a real though a negative' value as providing solid tests of truth. the best shoes will not enable a man to walk nor the best glasses to see; and the best rules of evidence will not enable a man to reason any better upon the facts before him. it is a partial perception of this which has caused the common distrust of them. but they do supply 'negative' tests, warranted by long experience, upon two great points. the first is that when you have to make an inference from facts, the facts should be closely connected in specified ways with the fact to be decided. the second is, that whatever fact has to be proved, should be proved by the best evidence, by the actual document alleged, or by the man who has seen with his own eyes or heard with his own ears the things or the words asserted to have occurred. if, however, these rules are substantially the expressions of sound common sense, worked out by practical sagacity, it is equally true that 'no body of rules upon an important subject were ever expressed so loosely, in such an intricate manner, or at such intolerable length.' the fact is that the intricate and often absurd theory by which they are connected came after the 'eminently sagacious practice' which the theory was intended to justify. english lawyers, by long practice in the courts, acquire an instinctive knowledge of what is or is not evidence, although they may have hardly given a thought to the theory. the english text-books, which are meant for practical purposes, are generally 'collections of enormous masses of isolated rulings generally relating to some very minute point.' they are arranged with reference to 'vague catchwords,' familiar to lawyers, rather than to the principles really invoked. one of the favourite formulæ, for example, tells us, 'hearsay is no evidence.' yet 'hearsay' and 'evidence' are both words which have been used in different senses ('evidence,' for example, either means a fact or the statement that the fact exists), and the absence of any clear definitions has obscured the whole subject. now as indian officials have to manage very difficult investigations, with no opportunity for acquiring the lawyer's instinct, and without the safeguard afforded in england by a trained bar, thoroughly imbued with the traditions of the art, they were in special need of a clear, intelligible code. by 'boiling down' the english law, and straining off all the mere technical verbiage, it would be possible to extract a few common-sense principles and to give their applications to practice in logical subordination and coherence. that which seems to be a labyrinth in which it is hopeless to find the way until experience has generated familiarity with a thousand minute indications at the various turning points, may be transformed, when the clue is once given, into a plan of geometrical neatness and simplicity. this was what fitzjames endeavoured to do for the indian law of evidence. when the draft was circulated the utility of the work was generally admitted in the reports returned, but some hostile criticisms were also made. one gentleman, who had himself written upon the subject, remarked that it had been apparently constructed by going through 'taylor on evidence,' and arbitrarily selecting certain portions. to this fitzjames replied that every principle, applicable to india, contained in the royal octavo pages of taylor, was contained in the sections of his bill, and that it also disposed fully of every subject treated in his critic's book. he accounts for the criticism, however, by pointing out that the limits of the subject had been very ill defined, and that many extraneous matters belonging properly, for example, to the law of procedure, had been introduced. a code which diverges from the general principles into the particular kind of evidence required in various cases, might spread into every department of law. fitzjames, however, partly met his critic by admitting certain additions of too technical a nature to be mentioned. i may observe that one source of the intricacy of the english law was avoided. in england, at that time, the erroneous admission or rejection of a single piece of evidence might have made it necessary to try the whole tichborne case over again. in india this had never been the case, and it was provided that such errors should not be ground for a new trial unless it were proved that they had caused a substantial failure of justice. i will only add that fitzjames, as before, endeavoured in an 'introduction' to connect his legal theory with the logical doctrines of mill. he was criticised in a pamphlet by mr. g. c. whitworth which he admits to be judicious, and afterwards corrected his definitions accordingly.[ ] he did not think his principle wrong, but considered the form to be inconvenient for practical application. upon this, however, i need not here dwell.[ ] two other important measures of codification were passed during fitzjames's tenure of office. the 'limitation of suits' act, passed march , , was, as he stated, entirely due to mr. whitley stokes. fitzjames expressed his high admiration for it in a speech in which he takes occasion to utter some characteristic denunciations of the subtleties of english law, connected with the subject of this act. did human memory run to the year , when richard i. set out on the third crusade, or to , when he returned? that was one of the problems propounded by lord wensleydale, who for many years devoted extraordinary powers of mind to quibbles altogether unworthy of him. there is no more painful sight for a man who dislikes the waste of human energy than a court engaged in discussing such a point. four judges, with eminent counsel and attorneys, will argue for days whether parliament, if it had thought of something of which it did not think, would have laid down an unimportant rule this way or that. it would have been better for the parties to the suit to toss up, and leave the most convenient rule to be adopted for the future. the 'contract act' had been prepared by the indian law commission, and had been under discussion for five years. the final revision had taken place in the winter of - , and fitzjames specially acknowledges the help of two colleagues in the legislative council, messrs. bullen smith and stewart, gentlemen engaged in business at calcutta. the subject is too technical for me to approach it. one point may just be mentioned: if a man steals a cow, and sells it to an innocent purchaser, who is to suffer the loss when the theft is discovered? the original owner, said the law commission. the purchaser, said the legislative council. stealing cows is one of the commonest of indian offences--so much so that it is a regular profession to track stolen cattle. but if the buyer has a good title to the cow, unless he knows it to be stolen, the recovery would be generally impossible. cattle-stealers would flourish, and would find an asylum in our territory, where the law would differ from that of the native states. this appears to indicate one of the subjects of discontent of the law commission, who desired to pass measures unsuitable, according to the indian government, to the conditions of the country. i have now mentioned, i think, the most important measures in which fitzjames was concerned, whether as having framed the original draft or simply as officially responsible for the work of others. he had, of course, more or less share in many other acts, some of much importance. little more than a month after his arrival he had to introduce a bill upon hindoo wills; and, in speaking on the occasion, elaborately discussed its relation to hindoo theories as to property, and especially as to the right of creating perpetuities. this speech appears to have made a very strong impression upon his hearers. in the last months of his residence he had charge of a bill upon oaths and declarations, which suggests some curious points of casuistry. what, for example, is to be done in regard to people who believe that they will be damned if their sworn statements are inaccurate, unintentionally or otherwise, and who, inferring that damnation is tolerably certain, argue that they may as well tell a big lie as a small one? how, again, is a european to appreciate the value of an oath made upon a cow's tail or a tiger's skin? i will not go into such discussions, noting only that he seems to have been profoundly interested in them all. fitzjames, of course, served upon many committees, and had to attend to the current business of his office. in the last three or four months of his stay, the larger measures which i have mentioned were finally passed into law. the punjab land revenue act was passed on october , ; the evidence act on march , ; the native marriages act on march ; the punjab laws on march ; the contract act on april ; and the criminal procedure act on april . in proposing the passage of the contract act he took occasion to give his view of the result which had so far been reached in the direction of codifying the indian laws. it might be said, in a summary way, that consolidation was nearly satisfactory in regard to 'current legislation,' that is, legislation required with a view to particular cases. in regard to 'procedure,' the process of codification was complete, with two or three exceptions. it would be complete when the code of civil procedure had been re-enacted; when the revenue procedure in the central provinces had been regulated, and another measure or two passed. finally, the 'substantive law' includes many most important subjects--the laws of inheritance, for example, and the land laws, which are determined by the native customs, and which, for obvious reasons, we cannot touch. when two or three gaps to which he pointed (the law of 'torts,' for example) had been filled, we should have as much codification as 'would be required for a length of time.' the statute law of india would then be comprised in four or five octavo volumes, and the essential part of it in five or six acts, which might be learnt in a year of moderate industry. a young civilian who knew the penal code, the succession act, the contract act, the two procedure codes, the evidence acts, the limitation act, and the land revenue acts of his province would know more than nineteen barristers out of twenty when they are called to the bar; and all this would go into a moderately sized octavo volume. his successor, he thought, would be able to accomplish all that was required. he observes, however, emphatically, that a process of re-enactment would be always required. it is necessary to keep laws steadily up to date, having regard to decisions of the courts upon new cases, and to any legislative changes. no important act should be left without amendments for more than ten or twelve years. a constant process of repairing is as necessary to a system of legislation as it is to the maintenance of a railway. i am, as i have already said, incompetent to form any opinion as to the intrinsic value of these codes. one able critic, sir c. p. ilbert, in the 'law quarterly,' observes that their real merit is that they were 'suitable and sufficient for the needs which they were intended to meet. what was urgently needed for india was a guide for the judge or magistrate who has had no legal training, who derives little or no assistance from the bar, and who has to work at a distance from a law library.' fitzjames's legislation, he thinks, was 'admirably adapted' for advancing the previous indian system a step further; although his codes might not meet the requirements of the present generation of english lawyers. sir c. p. ilbert, i may add, speaks very strongly of the 'educational value' of the contract act in particular, as shown by his experience of indian civil service examinations. he thinks that fitzjames's other writings and codes have a similar merit. a gentleman of high judicial position and very great indian experience has expressed to me his high admiration of the evidence act. it is, he says, 'a wonderful piece of work, boiling down so much into so small a compass.' it is 'an achievement to be proud of,' although parts of it, he adds, are open to criticism, and especially to the criticism that it is 'over the heads of those who have to deal with it.' it presupposes outside knowledge which they often do not possess. these criticisms do not altogether coincide, and i shall not endeavour to reconcile or discriminate. i am content to say that i have heard on all hands, from persons qualified to express an opinion here, that fitzjames's work made a marked impression upon indian legislation, and, with whatever qualifications, is admitted to have been of very great service to the administrators of the country. i shall venture, however, to add a word or two upon the qualities, mental and moral, thus displayed. sir c. p. ilbert says that fitzjames was a 'cyclopean builder. he hurled together huge blocks of rough-hewn law. it is undeniable that he left behind him some hasty work,' which his successors had to remove and replace. in half the ordinary term of office he did work enough for five law members, and 'left the legislative council breathless and staggering,' conscious of having accomplished 'unprecedented labours,' but with some misgivings as to the quality of parts of the work. fitzjames, that is, was a man of enormous energy, who fulfilled only half of the famous maxim; he laboured 'without rest,' but not 'without haste.' as for the energy displayed, there can, i imagine, be only one opinion.[ ] and if unflagging zeal in doing the duty which lies nearest, and an entire devotion of a man's whole powers of mind to what he sincerely believes to be a great and worthy task, be not virtues deserving of all respect, i do not know what qualities are entitled to that name. a vigorous constitution of mind and body applied to the discharge of appropriate duties describes a most felicitous combination of circumstances, and indicates a character which i, at least, cannot regard without cordial admiration. it is true that he loved his work; but that is just what constitutes his merit. i might express my feeling more strongly if i were less closely connected with its object. the direction, though not the extent, of the shortcomings of such an intellectual force may be easily imagined. if there was one thing which fitzjames hated it was needless subtlety, and the technicalities which are the product of such subtlety--the provision of a superfluous logical apparatus, which, while it gives scope for ingenuity, distracts the mind from the ends for which it is ostensibly designed. i have quoted enough to show the intensity of his longing for broad, general, common-sense principles, which was, indeed, his most prominent intellectual characteristic. now a code should, as i take it, like the scientific classification of any other subject-matter, combine this with intellectual excellence at the opposite pole. the scientific classification, when once made, should appear, as the botanists say, to be natural, not artificial. if fully successful, it should seem as if it could not but have been made, or as if it made itself. every subdivision should fall spontaneously into its right place without violence or distortion. the secret of achieving such a result is, i suppose, the selection of the right principles of division and subdivision from the first. when it appears that any given object refuses to fit itself conveniently into any one of our pigeon-holes, its obstinacy may betray a defect in the original system; and the code, like other artistic wholes in which every part has some definite relation to every other, may require a remanipulation throughout. now, if i understand fitzjames's intellectual temperament rightly, this indicates the point at which his patience might begin to fail. when he met with some little specimen which would not go of itself upon any of his previous arrangements, he would be apt to treat it with disrespect, and possibly to jam it in with too rough and ready a hand into the nearest compartment. in so doing he might really be overlooking the indication of a fault in the system, reaching further than he suspected. an apparent subtlety may really correspond to an important distinction, and an outward simplicity be attained at the cost of some internal discord. in short, the same kind of defect which prevented him from becoming an accurate classical scholar, or from taking a sufficient interest in the more technical parts of his profession, would show itself in the delicate work of codification by a tendency to leave raw edges here and there in his work, and a readiness to be too easily satisfied before the whole structure had received the last possible degree of polish. thus i find, from various indications which i need not specify, that some of his critics professed to have discovered flaws in his work, while he honestly thought the criticism superfine, and the errata pointed out such as concerned a mere corrector of the press rather than a serious legislator for practical purposes. but i must not even attempt to conjecture which was right and which was wrong, nor how far there might be right and wrong upon both sides. iii. indian impressions these rather vague presumptions must take the place of any deliberate estimate of the value of fitzjames's achievements in india. i must, however, say something more of the impression made upon his own mind. i have already indicated some of the convictions suggested to him by his experience, and i shall have to speak in the next chapter of the book in which he endeavoured to set forth their application to political principles in general. here i will summarise his view of the special principles of indian legislation. it is given very emphatically in sir w. w. hunter's 'life of lord mayo,' and will, i think, materially elucidate his position in regard to certain wider problems. he observes, in the first place, that the legislative department had been accused of over-activity and of a desire to introduce english law with too little regard to native ideas. the chief legislative reform required for india, he was often told, was the abolition of the legislative department--an assertion which, i should guess, when made in his presence, must have given rise to some rather lively discussions. he thought that this view rested mainly upon certain prejudices very generally entertained though not often stated in precise words. many civilians really objected to government by law, holding that in india law should be overridden by 'equity,' or, briefly, that the district officers should decide by their own views of each particular case. such persons, again, frequently held that the british rule had succeeded to the absolute power of the old native states, and that the vigour of the executive should be fettered by as few laws as possible. this feeling had been strengthened by the fact that the old supreme courts were originally established as a check upon the powers of the government. the two powers came to be regarded as in a position of natural antagonism, and nothing struck him more than the conviction of the older members of the service that lawyers were their natural enemies, and the law a mysterious power with the special function of trammelling executive action. various little encounters in the legislative council testify to this difference of sentiment. when he explained to a military officer of rank the power conferred by the criminal tribes act, mentioned above, the officer replied, 'it is quite a new idea to me that the law can be anything but a check to the executive power.' the same sentiment underlay the frequent complaints of the want of 'elasticity' of the law. when brought to a point these complaints always related to certain regulations for taking down and recording evidence. what was really desired by the persons concerned was elasticity in the degree of attention which they might pay to their most important duties. so an officer complained that he could not punish certain persons whom he knew to be murderers, though witnesses were afraid to appear. what he really wanted, it was implied, was power to put people to death on the secret information of irresponsible witnesses. hence, the first question is whether india should be governed by law or by merely personal discretion. baseless as the 'discretion' theory may be, it has a strong unavowed influence. and yet it is the very specific difference of our rule that it is rule by law and not despotism. englishmen could have no desire simply to set up a new despotism differing from the old only in being administered by englishmen instead of natives. the moral difference is unmistakable. decisive government by law gives the only real security for life or property, and is the indispensable condition for the growth of wealth. nor is a compromise more possible between law and despotism than between straight and crooked. the essence of one system is that no one shall suffer in person or property except according to law. the essence of the other is that security of person and property is dependent upon the will of the ruler. nowhere is this shown more clearly than in india. the remedy of the poorest peasant in the country against any wrongful action of the government in india is far clearer and more simple than the remedy of the richest and most influential man against the government in england.[ ] the absolute necessity of government by law is shown, however, most strikingly by a process going on throughout the country--the growth of private rights, and especially of rights in land. under the old despotic systems, the place of law was taken by a number of vague and fluctuating customs, liable to be infringed at every moment by the arbitrary fancies of the rulers. society was 'worn to the bone.' it had become an aggregate of villages, each forming a kind of isolated units. in some districts even the villages had been broken up and no political organisation remained except that between landholders and individual husbandmen, which was really a relation between oppressors and oppressed. elsewhere, there was a chaos of village communities, dominated by the most inorganic and ill-defined of aristocracies and monarchies. the village communities are decaying, and, in spite of regrets prompted by various reasons, they decay because they represent a crude form of socialism, paralysing to individual energy and inconsistent with the fundamental principles of our rule. the cardinal duty which we have to discharge in india is to keep the peace. the villages formed self-contained communities, each regulating its own affairs, and bound by loose customs, leading to quarrels which could only be settled by blood-feuds and the strong hand. strict laws and a rigid administration of justice are incompatible with such modes of determining disputes between man and man and village and village. the communities, therefore, break up when the law admits of no coercive action except its own. if we will not allow a man to gather his friends, arm them with bludgeons, and march out to settle a boundary dispute with a neighbouring village, we must settle the boundary ourselves, and we must settle it by distinct rules--that is, we must enforce laws. peace and law go together, as violence and elastic custom go together. now we must keep the peace, and, therefore, we must rule by law. rule by law, however, though necessary, is not a necessary evil but an invaluable benefit. laws are necessary to vigorous administration. when lawrence and his colleagues undertook to rule the punjab, it was a popular notion that they ruled by mere personal discretion. the fact, as already noticed, was the very reverse. their first step was to establish far better, simpler, and more scientific systems of law than were in force in the older provinces. moreover, and this is one of fitzjames's most characteristic theories, 'the establishment of a system of law which regulates the most important part of the daily life of a people constitutes in itself a moral conquest, more striking, more durable, and far more solid than the physical conquest which renders it possible. it exercises an influence over the minds of the people in many ways comparable to that of a new religion.' this is the more significant because the instructed natives who study the laws, both mohammedan and hindoo, have been accustomed to identify law and religion. 'our law is, in fact, the sum and substance of what we have to teach them. it is, so to speak, the gospel of the english, and it is a compulsory gospel which admits of no dissent and of no disobedience.' finally, if government does not make laws, each officer or group of officers will have to make their own. practically they will buy a few english law-books and apply them in a servile way to the cases which turn up. india, then, must be ruled by law. by what law? shall we endeavour to govern on native principles and by native agency? to this theory, which has attracted many friends, he replies, no; first, because indian ideas about government are wrong; they are proved to be wrong by experience, which shows that they led to anarchy and demoralisation; and, secondly, because they have produced men and institutions unfit for government. if, therefore, we tried to rule by oriental methods and agents, we should either make ourselves responsible for their oppressions, or we should have to keep them in order, and that is to rule by law. we should, again, have to watch perpetually over the mass of personal intrigue which is the 'curse of every despotic state.' we should require a large native army and live under a perpetual threat of mutiny. in fact, the mutiny of really represented the explosion and the collapse of this policy. finally, we should have to choose between mohammedans and hindoos, and upon either alternative a ruler not himself belonging to the religion comes into inevitable conflict with their fundamental principles. we have, then, no choice but to rule by law and to frame laws upon european principles. here, it is necessary to guard against misunderstandings which have given rise to the charge of over-legislation. 'european principles' mean those principles which have been shown by our experience to be essential to peace, order, wealth, and progress in arts and sciences. 'no one,' says fitzjames, 'can feel more strongly than i do the madness of the smallest unnecessary interference with the social habits and religious opinions of the country. i would not touch one of them except in cases of extreme necessity.' but the simple introduction of peace, law, order, free competition for wealth and honour, with an education to match, will inevitably cause a social revolution. by merely suppressing violence and intestine war, you produce such a revolution in a country, which has for centuries been the theatre of disorder and war, as surely as by damming a river you produce a lake. you must look after the security of your dams under penalty of fearful disasters. hence the great problem of the english in india is to see that this inevitable revolution, at the head of which they have been placed, shall run in the proper channels and produce good results. what will be the ultimate result passes the wit of man to say. that india should reproduce europe in religious morals and law seems highly improbable; but whatever changes take place will depend upon other causes than legislation. the law can only provide a convenient social framework. the utmost that we are entitled to say is that the maintenance of peace, order, and the supremacy of a law, which leaves all religious inquiries to find their own level, and is founded upon temporal expediency, is an indisputable condition of the only kind of benefits which it is in our power to confer upon india. the conclusion, then, follows that so much legislation is not only justifiable but necessary as will provide for the following objects:--the firm establishment of our power; the recognition and enforcement of the principles which it represents; and the vigorous administration of the government. such legislation should be earned out, however much opposed either to european or to native principles. but all legislation, not required for these purposes, is mischievous and dangerous. the limits thus defined in general terms can only be precisely marked out by experience. but 'no law should be made till it is distinctly perceived and felt to be necessary. no one can admit more fully or feel more strongly than i do the evils and dangers of mere speculative legislation in india.' fitzjames proceeds to argue that these principles have in fact guided our indian legislation. no government was 'ever less justly chargeable with enacting laws merely for the sake of legislation.' the faults have arisen from defects of style and from the peculiar conditions of indian administration. the unwritten law of india is mainly personal; and many difficulties have arisen from the mixture of english law with the mohammedan and hindoo laws and other native customs. all cases not otherwise provided for were to be decided by justice, equity, and good conscience. much latitude of decision was thus left to the indian judges upon matters not included in the written law. the practical result of thus 'throwing the reins on the neck of judges,' the first body of whom had no professional training, was to produce a vague uncertain feeble system,' combining the defects of 'a weak grasp of principle with a great deal of occasional subservience to technicality.' english professional lawyers occasionally seem to acquire a specially vigorous grasp of principles, to which they have had to force their way through a mass of confused precedent and detail. but the 'unprofessional judge seldom gets beyond a certain number of illustrations and rules, more or less imperfectly understood.' hence the special necessity in india of reducing the laws to the clearest and most explicit shape possible, or, in other words, for the codifying process in which he had played his part. sir w. w. hunter remarks in a note that the evils indicated here have been remedied to some extent, 'partly through the influence which his (fitzjames's) views have exercised' in india, by a greater separation between the judicial and the executive branches of the service. one of fitzjames's most remarkable pieces of work is a 'minute on the administration of justice in british india,' containing his remarks upon the subject mentioned by sir w. w. hunter. it was originally written in the summer of , as a comment upon a large mass of opinions obtained from the local governments. it was revised in , and published[ ] just before he left india in . the desirability of separating the judicial from the executive functions of the civilians had been long under discussion, and very various opinions had been held. in this minute fitzjames summarises these, and gives his own view of the points on which he considered himself able to form an opinion. many of the questions raised could only be answered to any purpose by men who had had long practical experience of administration. fitzjames, however, gives a careful account of the actual systems of the various provinces: discusses how far it is possible or desirable to separate the functions; whether a 'special judicial branch of the civil service' should be created; whether any modification would be desirable in the systems of civil or criminal procedure; and what practical suggestions should be followed, having regard to economy and to an increased employment of natives. i cannot even attempt to describe his arguments. i will only say that the minute appears to me to be a very remarkable production, not only as indicating the amount of labour bestowed, amid so many other occupations, upon the important questions discussed; but as one of his best performances as a very clear and terse account of a complicated system with a brief but exceedingly vigorous exposition of what he thought should be the governing principles of any reforms. he held, i may say, in a general way that there were some evils which required a remedy; especially those resulting from the frequency of appeals in the indian system and the elaborate supervision of the magistrates by the high courts. he recognises imperfections inherent and excusable in the attempt to administer justice to so vast a population by a small body of foreigners with very imperfect legal training; though he shows his usual admiration for the general results of british government, and thinks that the efficiency of the service may be secured by moderate reforms. incidentally he goes over many of the points already noticed as touched in his speeches. i have, however, said as much as is desirable in regard to his general principles as expounded in the minute and in the 'life of lord mayo.' every one of the legislative measures in which he was concerned might be regarded as an illustration of one or more of these propositions. to me it seems that they represent at least a definite policy, worthy of his common sense and general vigour of mind. a generalisation from these principles came to constitute his political creed in later years. iv. last months in india i must now speak of an event which made a very strong impression upon him. he concludes the chapter from which i have been quoting by declaring that of the many public men whom he had met in england and india, there was none to whom he 'felt disposed to give such heartfelt affection and honour' as to lord mayo. lord mayo, he says, though occupied in many other ways, had shown the 'deepest personal interest' in the work of the legislative department, and, when difficulties arose, had given to it the warmest, most ardent, and most effective support. it was chiefly due to lord mayo that the government was able to pass the important acts of the beginning of , especially the three great measures: the 'civil procedure code,' the 'contract act,' and the 'evidence code.' i hope, says fitzjames to sir w. w. hunter, that you will be able to make people understand 'how wise and honest and brave he was, and what freshness, vigour, and flexibility of mind he brought to bear upon a vast number of new and difficult subjects.' on january , , lord mayo left calcutta in h.m.s. 'glasgow' to visit, among other places, the convict settlement at the andaman islands. he landed there on february , and while getting into his boat to return was murdered by a convict. the body was brought back to calcutta on february , where it lay in state for two days at government house, before being sent for burial to his native country. in one of his last letters to his mother, fitzjames gives an account of the ceremonies at calcutta, which incidentally illustrates, i think, more forcibly than anything else, the impression produced upon him by india generally. i shall therefore give most of it, omitting a few comparatively irrelevant details. i will only observe that nobody had less taste for public performances of this kind in general--a fact which shows the strength of his feelings on this particular occasion. 'i never expected,' he writes (february , ), 'to be impressed by a mere ceremonial; but there were some things almost oppressive from their reality and solemnity.... the coffin was brought up on a gun-carriage. it was of enormous size and weight, (near two tons, i believe). the gun-carriage, drawn by twelve artillery horses, made a strangely impressive hearse. it looked so solid, so businesslike, so simple, and so free from all the plumes and staves and rubbish of undertakers. about thirty picked sailors from the "daphne" and "glasgow" walked behind and by the side; all dressed in clean white trousers and jerseys, and looking like giants, as indeed they were. they were intensely fond of lord mayo, who had won their hearts by the interest he took in them and in the little things they got up to amuse him.... he passed the last evening of his life sitting with lady mayo on the bridge of the "glasgow," and laughing at their entertainment with the greatest cordiality. they wanted to be allowed to carry the coffin on their own shoulders; they said they were ready and willing to do it, and i believe they would have been able, ready, and willing to do anything that strength and skill and pluck could do. behind them walked the procession, which was nearly three-quarters of a mile long, and contained every englishman of any importance in calcutta and a considerable number of natives. the whole road was lined with troops on both sides: but they stood at intervals of several yards, and there was an immense crowd close behind and, in some places in between them.... if there had been any other fanatics in the crowd, there was nothing to prevent them from making a rush and giving a stab.... if there had been any attempt of the kind, i cannot say what might not have happened. people were in such an excited and half-electric state that there might have been a general riot, which would soon have become very like a massacre. one man told me that on his way home, he felt possessed by such fury against anyone who might be connected with the murder, that he walked with a kind of charge through a group of people, who looked as if they enjoyed "the show," and gave a shove to a big mohammedan who looked insolent, at which, he said, "the man went down like a bag of feathers." i saw some suspicious-looking fellows grinning and sneering and showing their teeth myself, and i felt as if i could have killed them. no one who has not felt it can imagine how we all feel out here in regard to such matters. when lord mayo was stabbed, i think every man in the country felt as if he had been more or less stabbed himself. 'the procession went on with the most overwhelming solemnity (nothing short of these words can describe it), till we got to government house. there was a dead silence nearly all the way; the natives standing or squatting in their apathetic way, and the europeans as grim as death. all that was to be heard was the rattle of the gun-carriage, and the tramping of the horses, and the minute-guns from the fort and ships. the housetops, the windows, the fort were all crowded with people, but all as still as death. i think the ships looked as sad as anything. there were two miles of noble ships in the hooghly. their flags were all flying half-mast high, and they had all "tossed their yards."' (he draws a rough diagram to explain the phrase). 'the yards are all in disorder, and the effect is forlorn and dishevelled to a degree you would not imagine. when we got to government house, the coffin had to be lifted off the gun-carriage and pulled up a long flight of wide stone steps.... the sailors and a few artillerymen did it all in perfect silence, and with an amount of strength that looked almost marvellous.' the coffin was placed on a truck, to which the sailors harnessed themselves, and dragged it up an inclined plane (formed over the steps) with no apparent effort in spite of the enormous weight. it was taken along a suite of rooms, 'hung with black, and lighted with a curious simplicity and grandeur.' here, again, the coffin had to be lifted, and 'it was most striking to see the absolute silence with which the men moved the monstrous weight at a sign from the captain's hand.' the only sound was when a spar snapped in the hands of a 'giant of a fellow, who was lifting with it. there was a respectful delicacy in every motion of these men which combined beautifully with their immense, quiet, controlled strength, and impressed me very much. after a few prayers we left.' on wednesday, the st, the coffin was again removed to the ship. the imprudence of the former procession had struck everyone. the streets were cleared and no one admitted to the jetty except the procession. 'you cannot imagine the awful solemnity which all this precaution gave the whole thing. it was like marching through a city half-dead and half-besieged.' nothing was to be seen but troops; and, 'when we got into dalhousie square, there was a battery of artillery firing minute-guns, and drawn up on the road just as if they were going to fight. two or three bands played the dead march the whole way, till i felt as if it would never get out of my ears. at the end of the jetty lay the "daphne." ... the sailors, with infinite delicacy and quiet, draped the coffin carefully with its flags ... and it was raised and lowered by a steam-crane, which, somehow or other, they managed to work without any sound at all. when the ship steamed off down the river, and the minute-guns stopped, and i drove home with henry cunningham, i really felt as i suppose people feel when an operation is over. there was a stern look of reality about the whole affair, quite unlike what one has seen elsewhere. troops and cannon and gun-carriages seem out of place in england, ... but it is a very different matter here, where everything rests upon military force. the guns and the troops are not only the outward and visible marks of power, but they are the power itself to a great extent, and it is very impressive to see them. 'it gives a sort of relief to one,' he adds, 'that after all lord mayo was, in a sense, going home: that he (so far as one can speak of his dead body) was leaving this country with all its various miseries, to return to his own native place. if one is to have fancies on such a matter, it is pleasant to think that he is not to lie here in a country where we can govern and where we can work and make money and lead laborious lives; but for which no englishman ever did, or ever will, or can feel one tender or genial feeling.[ ] the work that is done here is great and wonderful; but the country is hateful.' one singular incident was connected with this event. the murderer had been tried on the spot and sentenced to death. the sentence had to be confirmed by the high court at calcutta. it was there discovered that the judge had by some mistake recorded that the european witnesses had 'affirmed' according to the form used for native religions, instead of being sworn according to the christian formula. fitzjames was startled to hear of this intrusion of technicality upon such an occasion; and held, i think, that in case of need, the government of india should manage to cut the knot. ultimately, however, some of the witnesses who were at calcutta made affidavits to the effect that they had really been sworn, and the sentence was confirmed and executed. otherwise, said fitzjames in one of his last indian speeches (upon the oaths and declaration act) a grievous crime might have escaped punishment, because five english gentlemen had made statements 'in the presence of almighty god,' instead of kissing the bible and saying 'so help me god.' i must mention one other incident which occurred at the end of fitzjames's stay in india. one ram singh was the spiritual and political chief of a sect called the kookas. his disciples showed their zeal by murdering butchers as a protest against cow-killing. they were animated by prophecies of a coming kingdom of heaven, broke into rioting and were suppressed, and, as the indian government held, punished with an excess of severity. although fitzjames was not officially responsible in this business, he was consulted on the occasion; and his opinions are represented by an official despatch. i need only say that, as in the case of governor eyre, he insisted that, while the most energetic measures were allowable to suppress actual resistance, this was no excuse for excessive punishment after the danger was over. the ordinary law should then be allowed to take its course. meanwhile, ram singh was shown to be more or less implicated in the disorders and was deported to burmah. fitzjames was greatly impressed by the analogy between english rulers in india and roman governors in syria some eighteen centuries ago, when religious sects were suspected of political designs. to this i shall refer presently. fitzjames attended the legislative council for the last time on april , . he left calcutta the next day on his return to england. he had thus been in office for only half the usual period of five years. his reasons for thus cutting short his time were simple. he felt very strongly that he was exacting a sacrifice on the part of his wife and his family which could only be justified by a very distinct advantage. the expenses were more than he had anticipated, and he saw at an early period that he would be in any case compelled to return to his profession. gaps at the bar are soon filled up. the more prolonged his absence, the greater would be the difficulty of regaining the position which he had slowly reached. i have some reason to think that the authorities at the india office were not altogether pleased at what they considered to be a premature relinquishment of his post. he could, however, reply that if he had been only half the usual time in india, he had done fully twice the average amount of work. he left india without regrets for the country itself; for to him the climate and surroundings of english life seemed to be perfection. but he left with a profound impression of the greatness of the work done by englishmen in india; and with a warm admiration for the system of government, which he was eager to impart to his countrymen at home. how he endeavoured to utter himself upon that and kindred subjects shall be told in the next chapter. footnotes: [footnote : his first letter to miss thackeray, i notice, is written upon the back of a quaint broadsheet, bought at boulogne. on the other side is a woodcut of the gallant 'tulipe' parting from his mistress, and beneath them is the song 'tiens, voici ma pipe, voilà mon briquet!' which montcontour used to sing at the 'haunt' to the admiration of pendennis and warrington. see the _newcomes_, vol. i. chap. xxxvi.] [footnote : i depend chiefly upon the official reports of the debates in the legislative council; my brother's own summary of indian legislation in a chapter contributed to sir w. w. hunter's _life of the earl of mayo_ ( ), ii. pp. - ; and a full account of indian criminal legislation in chap, xxxiii. of his _history of criminal law_. he gave a short summary of his work in an address to the social science association on november , , published in the _fortnightly review_ for december . i may also refer to an article upon 'sir james stephen as a legislator' in the _law quarterly review_ for july , by sir c. p. ilbert, one of his successors.] [footnote : i may say that he especially acknowledges the share of the work done in his own time by mr. whitley stokes, secretary to the council, by sir h. s. cunningham, for some time acting secretary, and by mr. cockerell, a member of the council.] [footnote : _history of criminal law_, iii. .] [footnote : _life of lord mayo_, ii. .] [footnote : _history of criminal law_, ii. - .] [footnote : 'obsolete enactments bill,' february , .] [footnote : _mayo_, ii. .] [footnote : the parties had also to be of certain ages, not already married, and not within certain degrees of relationship.] [footnote : see the account of this in _history of criminal law_, iii. - .] [footnote : _history of criminal law_, iii. .] [footnote : _digest of the law of evidence._ fourth edition, , pp. - .] [footnote : an edition of the _evidence code_, with notes by sir h. s. cunningham, reached a ninth edition in . it gives the changes subsequently made, which are not numerous or important.] [footnote : sir c. p. ilbert, however, is mistaken in supposing that fitzjames wrote his _liberty, equality, fraternity_ during his official labours.] [footnote : _life of mayo_, ii. .] [footnote : in _selections from the records of the government of india_, no. lxxxix., published by authority. calcutta, .] [footnote : i do not feel that it would be right to omit this remark, although i am certain that, taken by itself, it would convey a totally inaccurate impression of my brother's sentiments about india. i have, i hope, said enough to indicate his sympathetic interest in indian matters and the work of indian officials. i must trust my readers to understand that the phrase expresses a mood of intense excitement and must be taken only as indicating the strength of the passing emotion.] chapter v _last years at the bar_ i. first occupations in england fitzjames had passed the winter of - in calcutta with henry cunningham; his wife having returned to england in november. he followed her in the spring, sailing from bombay on april , . to most people a voyage following two years and a half of unremitting labour would have been an occasion for a holiday. with him, however, to end one task was the same thing as to begin another, and he was taking up various bits of work before india was well out of sight. he had laid in a supply of literature suitable both for instruction and amusement. the day after leaving bombay he got through the best part of a volume of sainte-beuve. he had also brought a 'faust' and auerbach's 'auf der höhe,' as he was anxious to improve himself in german, and he filled up odd spaces of time with the help of an italian grammar. he was writing long letters to friends in india, although letter-writing in the other direction would be a waste of time. with this provision for employment he found that the time which remained might be adequately filled by a return to his beloved journalism. he proposes at starting to write an article a day till he gets to suez. he was a little put out for the first twenty-four hours because in the place which he had selected for writing his iron chair was too near the ship's compasses. he got a safe position assigned to him before long and immediately set to work. he takes his first text from the may meetings for an article which will give everybody some of his reflections upon missionaries in india. our true position in india, he thinks, is that of teachers, if only we knew what to teach. hitherto we have not got beyond an emphatic assertion of the necessity of law and order. he writes his article while the decks are being washed, and afterwards writes a 'bit of a letter,' takes his german and italian lessons, and then turns to his travelling library. this included mill's 'utilitarianism' and 'liberty'; which presently provide him with material not only for reflection, but for exposition. on april he reports that he has been 'firing broadsides into john mill for about three hours.' he is a little distracted by the heat, and by talks with some of his fellow-travellers; but as he goes up the red sea he is again assailing mill. it has now occurred to him that the criticisms may be formed into a series of letters to the 'pall mall gazette,' which will enable him to express a good many of his favourite doctrines. 'it is curious,' he says, 'that after being, so to speak, a devoted disciple and partisan (of mill) up to a certain point i should have found it impossible to go on with him. his politics and morals are not mine at all, though i believe in and admire his logic and his general notions of philosophy.' he reached suez on may , and on the way home resolved at last to knock off work and have a little time for reflection on the past and the future. india, he says, has been 'a sort of second university course' to him. 'there is hardly any subject on which it has not given me a whole crowd of new ideas, which i hope to put into shape,' and communicate to the world. on may he reached paris, where he met his wife; and on the th was again in england, rejoicing in a cordial reception from his family and his old friends. the same evening he sees his cousin mrs. russell gurney and her husband; and his uncle and aunt, john and emelia venn. froude met him next day in the pleasantest way, and maine and he, as he reports, were 'like two schoolboys.' on the th he went to his chambers and called upon greenwood at the 'pall mall gazette' office. he had written an article on the way from paris which duly appeared in next day's paper. not long after his return he attended a dinner of his old cambridge club, with maine in the chair. in proposing maine's health he suggested that the legislation passed in india during the rule of his friend and himself should henceforth be called the 'acts of the apostles.' one of the greatest pleasures upon reaching home was to find that his mother showed less marks of increasing infirmity than he had expected from the accounts in letters. she was still in full possession of her intellectual powers, and though less able than of old to move about, was fully capable of appreciating the delight of welcoming back the son who had filled so much of her thoughts. i may here note that fitzjames's happiness in reviving the old bonds of filial affection was before long to be clouded. his uncle, henry venn, died on january , , and he writes on the th: 'somehow his life was so bold, so complete, and so successful, that i did not feel the least as if his death was a thing to be sad about,' sad as he confesses it to be in general to see the passing away of the older generation. 'my dear mother,' he adds, 'is getting visibly weaker, and it cannot now be a very long time before she goes too. it is a thought which makes me feel very sad at times, but no one ever had either a happier life or a more cheerful and gallant spirit. she does not care to have us to dinner now; but we all see her continually; i go perhaps every other day, and mary nearly every day.' his mother was to survive two years longer. her strong constitution and the loving care of the daughter who lived with her supported her beyond the anticipation of her doctors. there are constant references to her state in my brother's letters. the old serenity remained unchanged to the last. she suffered no pain and was never made querulous by her infirmities. slowly and gradually she seemed to pass into a world of dreams as the decay of her physical powers made the actual world more indistinct and shadowy. the only real subject for regret was the strain imposed upon the daughter who was tenderly nursing her, and doing what could be done to soothe her passage through the last troubles she was to suffer. it was as impossible to wish that things should be otherwise as not to feel the profound pathos of the gentle close to long years of a most gentle and beautiful life. fitzjames felt what such a son should feel for such a mother. it would be idle to try to put into explicit words that under-current of melancholy and not the less elevating thought which saddened and softened the minds of all her children. her children must be taken to include some who were children not by blood but by reverent affection. she died peacefully and painlessly on february , . she was buried by the side of her husband and of two little grandchildren, fitzjames's infant daughter and son, who had died before her. i now turn to the work in which fitzjames was absorbed almost immediately after his return to england. he had again to take up his profession. he was full of accumulated reflections made in india, which he had not been able to discharge through the accustomed channel of journalism during his tenure of office; and besides this he entertained hopes, rather than any confident belief, that he would be able to induce english statesmen to carry on in their own country the work of codification, upon which he had been so energetically labouring in india. before his departure he had already been well known to many distinguished contemporaries. but he came home with a decidedly higher reputation. in the natural course of things, many of his contemporaries had advanced in their different careers, and were becoming arbiters and distributors of reputation. his indian career had demonstrated his possession of remarkable energy, capable of being applied to higher functions than the composition of countless leading articles. he was henceforward one of the circle--not distinguished by any definite label but yet recognised among each other by a spontaneous freemasonry--which forms the higher intellectual stratum of london society; and is recruited from all who have made a mark in any department of serious work. he was well known, of course, to the leaders of the legal profession; and to many members of government and to rising members of parliament, where his old rival sir w. harcourt was now coming to the front. he knew the chief literary celebrities, and was especially intimate with carlyle and froude, whom he often joined in sunday 'constitutionals.' his position was recognised by the pleasant compliment of an election to the 'athenæum' 'under rule ii.,' which took place at the first election after his return ( ). he had just before (november ) been appointed counsel to the university of cambridge. before long he had resumed his place at the bar. his first appearance was at the old bailey in june , where he 'prosecuted a couple of rogues for government.' he had not been there since he had held his first brief at the same place eighteen years before, and spent his guinea upon the purchase of a wedding ring. he was amused to find himself after his dignified position in india regarded as a rather 'promising young man' who might in time be capable of managing an important case. the judge, he says, 'snubbed' him for some supposed irregularity in his examination of a witness, and did not betray the slightest consciousness that the offender had just composed a code of evidence for an empire. he went on circuit in july, and at warwick found himself in his old lodgings, writing with his old pen, holding almost the same brief as he had held three years before, before the same judge, listening to the same church bells, and taking the walk to kenilworth castle which he had taken with grant duff in . although the circuit appears to have been unproductive, business looked 'pretty smiling in various directions.' john duke coleridge, afterwards lord chief justice, was at this time attorney-general. fitzjames differed from him both in opinions and temperament, and could not refrain from an occasional smile at the trick of rather ostentatious self-depreciation which coleridge seemed to have inherited from his great-uncle. there was, however, a really friendly feeling between them both now and afterwards; and coleridge was at this time very serviceable. he is 'behaving like a good fellow,' reports fitzjames july , and is 'sending government briefs which pay very well.' by the end of the year fitzjames reports 'a very fair sprinkling of good business.' all his old clients have come back, and some new ones have presented themselves. there were even before this time some rumours of a possible elevation to the bench; but apparently without much solid foundation. meanwhile, he was also looking forward to employment in the direction of codification. he had offered, when leaving india, to draw another codifying bill (upon 'torts') for his successor hobhouse. this apparently came to nothing; but there were chances at home. 'i have considerable hopes,' he says (june , ), 'of getting set to work again after the manner of simla or calcutta.' there is work enough to be done in england to last for many lives; and the government may perhaps take his advice as to the proper mode of putting it in hand. he was soon actually at work upon two bills, which gave him both labour and worry before he had done with them. one of these was a bill upon homicide, which he undertook in combination with russell gurney, then recorder of london. the desirability of such a bill had been suggested to gurney by john bright, in consequence of a recent commission upon capital punishment. gurney began to prepare the work, but was glad to accept the help of fitzjames, whose labours had made him so familiar with the subject. substantially he had to adapt part of the penal code, which he must have known by heart, and he finished the work rapidly. he sent a copy of the bill to henry cunningham on august , , when it had already been introduced into parliament by r. gurney and read a first time. he sees, however, no chance of getting it seriously discussed for the present. one reason is suggested in the same letter. england is a 'centre of indifference' between the two poles, india and the united states. at each pole you get a system vigorously administered and carried to logical results. 'in the centre you get the queerest conceivable hubblebubble, half energy and half impotence, and all scepticism in a great variety of forms.' the homicide bill was delayed by russell gurney's departure for america on an important mission in the following winter, but was not yet dead. one absurd little anecdote in regard to it belongs to this time. fitzjames had gone to stay with froude in a remote corner of wales; and wishing to refer to the draft, telegraphed to the recorder of london: 'send homicide bill.' the official to whom this message had to be sent at some distance from the house declined to receive it. if not a coarse practical joke, he thought it was a request to forward into that peaceful region a wretch whose nickname was too clearly significant of his bloodthirsty propensities. fitzjames mentions in the same letter to cunningham that he has just finished the 'introduction' to his indian evidence act. this subject brought him further occupation. he had more or less succeeded in making a convert of coleridge. 'if this business with coleridge turns out right,' he says (october ), 'i shall have come home in the very nick of time, for there is obviously going to be a chance in the way of codification which there has not been these forty years, and which may never occur again.' had he remained in india, he might have found the new viceroy less favourable to his schemes than lord mayo had been, and would have at any rate missed the chance of impressing the english government at the right time. on november he writes again to cunningham, and expresses his disgust at english methods of dealing with legislation. he admits that 'too much association with old carlyle, with whom i walk most sundays,' may have made him 'increasingly gloomy.' but 'everything is so loose, so jarring, there is such an utter want of organisation and government in everything, that i feel sure we shall have a great smash some day.' a distinguished official has told him--and he fully believes it--that the admiralty and the war office would break down under a week's hard pressure. he observes in one article of the time that his father had made the same prophecy before . he often quotes his father for the saying, 'i am a ministerialist.' men in office generally try to do their best, whatever their party. but men in opposition aim chiefly at thwarting all action, good or bad, and a parliamentary system gives the advantage to obstruction. part of his vexation, he admits, is due to his disgust at the treatment of the codification question. coleridge, it appears, had proposed to him 'months ago' that he should be employed in preparing an evidence bill. difficulties had arisen with lowe, the chancellor of the exchequer, as to the proper fee. fitzjames was only anxious now to get the thing definitively settled on any terms and put down in black and white. the government might go out at any moment, and without some agreement he would be left in the lurch. it was 'excessively mortifying, ... and showed what a ramshackle concern our whole system' was. definite instructions, however, to prepare the bill were soon afterwards given. on december he writes that the english evidence bill is getting on famously. he hopes to have it all ready before parliament meets, and it may probably be read a second time, though hardly passed this year. it was in fact finished, as one of his letters shows, by february , . ii. 'liberty, equality, fraternity' meanwhile, however, he had been putting much energy into another task. he had for some time delivered his tale of articles to the 'pall mall gazette' as of old. he was soon to become tired of anonymous journalism; but he now produced a kind of general declaration of principles which, though the authorship was no secret and was soon openly acknowledged, appeared in the old form, and, as it turned out, was his last work of importance in that department. it was in some ways the most characteristic of all his writings. he put together and passed through the 'pall mall gazette' during the last months of and january the series of articles already begun during his voyage. they were collected and published with his name in the following spring as 'liberty, equality, fraternity.' i confess that i wondered a little at the time that the editor of a newspaper should be willing to fill his columns with so elaborate a discourse upon first principles; and i imagine that editors of the present day would be still more determined to think twice before they allowed such latitude even to the most favoured contributor. i do not doubt, however, that mr. greenwood judged rightly. the letters were written with as much force and spirit as anything that fitzjames ever produced. i cannot say how they affected the paper, but the blows told as such things tell. they roused the anger of some, the sympathy of others, and the admiration of all who liked to see hard hitting on any side of a great question. the letters formed a kind of 'apologia' or a manifesto--the expression, as he frequently said, of his very deepest convictions. i shall therefore dwell upon them at some length, because he had never again the opportunity of stating his doctrines so completely. those doctrines are far from popular, nor do i personally agree with them. they are, however, characteristic not merely of fitzjames himself, but of some of the contemporary phases of opinion. i shall therefore say something of their relation to other speculations; although for my purpose the primary interest is the implied autobiography. the book was perhaps a little injured by the conditions under which it was published. a series of letters in a newspaper, even though, as in this case, thought out some time beforehand, does not lend itself easily to the development of a systematic piece of reasoning. the writer is tempted to emphasise unduly the parts of his argument which are congenial to the journalistic mode of treatment. it is hard to break up an argument into fragments, intended for separate appearance, without somewhat dislocating the general logical framework. the difficulty was increased by the form of the argument. in controverting another man's book, you have to follow the order of his ideas instead of that in which your own are most easily expounded. fitzjames, indeed, gives a reason for this course. he accepts mill's 'liberty' as the best exposition of the popular view. acknowledging his great indebtedness to mill, he observes that it is necessary to take some definite statement for a starting point; and that it is 'natural to take the ablest, the most reasonable, and the clearest.' mill, too, he says, is the only living author with whom he 'agrees sufficiently to argue with him profitably.' he holds that the doctrines of mill's later books were really inconsistent with the doctrines of the 'logic' and 'political economy.' he is therefore virtually appealing from the new utilitarians to the old. 'i am falling foul,' he says in a letter, 'of john mill in his modern and more humane mood--or, rather, i should say, in his sentimental mood--which always makes me feel that he is a deserter from the proper principles of rigidity and ferocity in which he was brought up.' fitzjames was thus writing as an orthodox adherent of the earlier school. he had sat at the feet of bentham and austin, and had found the most congenial philosophy in hobbes. and yet his utilitarianism was mingled with another strain; and one difficulty for his readers is precisely that his attack seems to combine two lines of argument not obviously harmonious. still, i think that his main position is abundantly clear. fitzjames--as all that i have written may go to prove--was at once a puritan and a utilitarian. his strongest sympathies and antipathies were those which had grown up in the atmosphere of the old evangelical circle. on this side, too, he had many sympathies with the teaching of carlyle, himself a spiritual descendant of the old covenanters. but his intellect, as i have also remarked, unlike carlyle's, was of the thoroughly utilitarian type. respect for hard fact, contempt for the mystical and the dreamy; resolute defiance of the _à priori_ school who propose to override experience by calling their prejudices intuitions, were the qualities of mind which led him to sympathise so unreservedly with bentham's legislative theories and with mill's 'logic.' let us, before all things, be sure that our feet are planted on the solid earth and our reason guided by verifiable experience. all his studies, his legal speculations, and his application of them to practice, had strengthened and confirmed these tendencies. how were they to be combined with his earlier prepossessions? the alliance of puritan with utilitarian is not in itself strange or unusual. dissenters and freethinkers have found themselves side by side in many struggles. they were allied in the attack upon slavery, in the advocacy of educational reforms, and in many philanthropic movements of the early part of this century. james mill and francis place, for example, were regarded as atheists, and were yet adopted as close philanthropic allies by zachary macaulay and by the quaker william allen. a common antipathy to sacerdotalism brought the two parties together in some directions, and the protestant theory of the right of private judgment was in substance a narrower version of the rationalist demand for freedom of thought. protestantism in one aspect is simply rationalism still running about with the shell on its head. this gives no doubt one secret of the decay of the evangelical party. the protestant demand for a rational basis of faith widened among men of any intellectual force into an inquiry about the authority of the bible or of christianity. fitzjames had moved, reluctantly and almost in spite of himself, very far from the creed of his fathers. he could not take things for granted or suppress doubts by ingenious subterfuges. and yet, he was so thoroughly imbued with the old spirit that he could not go over completely to its antagonists. to destroy the old faith was still for him to destroy the great impulse to a noble life. he held in some shape to the value of his creed, even though he felt logically bound to introduce a 'perhaps.' this, however, hardly gives the key to his first difference with the utilitarians, though it greatly affects his conclusions. he called himself, as i have said, a liberal; but there were, according to him, two classes of liberals, the intellectual liberals, whom he identified with the old utilitarians, and the liberals who are generally described as the manchester school. which of those was to be the school of the future, and which represented the true utilitarian tradition? here i must just notice a fact which is not always recognised. the utilitarians are identified by most people with the (so-called) manchester doctrines. they are regarded as advocates of individualism and the _laissez-faire_ or, as i should prefer to call it, the let-alone principle. there was no doubt a close connection, speaking historically; but a qualification must be made in a logical sense, which is very important for my purpose. the tendency which fitzjames attacked as especially identified with mill's teaching--the tendency, namely, to restrict the legitimate sphere of government--is far from being specially utilitarian. it belonged more properly to the adherents of the 'rights of man,' or the believers in abstract reason. it is to be found in price and paine, and in the french declaration of the rights of man; and mr. herbert spencer, its chief advocate (in a new form) at the present day remarks himself that he was partly anticipated by kant. bentham expressly repudiated this view in his vigorous attack upon the 'anarchical fallacies' embodied in the french declaration. in certain ways, moreover, bentham and his disciples were in favour of a very vigorous government action. bentham invented his panopticon as a machine for 'grinding rogues honest,' and proposed to pass paupers in general through the same mill. his constitutional code supposes a sort of omnipresent system of government, and suggests a national system of education and even a national church--with a very diluted creed. as thorough-going empiricists, the utilitarians were bound to hold, and did, in fact, generally declare themselves to hold, not that government interference was wrong in general, but simply that there was no general principle upon the subject. each particular case must be judged by its own merits. historically speaking, the case was different. the political economy of ricardo and the mills was undoubtedly what is now called thoroughly 'individualistic.' its adherents looked with suspicion at everything savouring of government action. this is in part one illustration of the general truth that philosophies of all kinds are much less the real source of principles than the theories evoked to justify principles. their course is determined not by pure logic alone, but by the accidents of contemporary politics. the revolutionary movement meant that governments in general were, for the time, the natural enemies of 'reason.' philosophers who upon any ground sympathised with the movement took for their watchword 'liberty,' which, understood absolutely, is the antithesis to all authority. they then sought to deduce the doctrine of liberty from their own philosophy, whatever that might be. the _à priori_ school discovered that kings and priests and nobles interfered with a supposed 'order of nature,' or with the abstract 'rights of man.' the utilitarian's argument was that all government implies coercion; that coercion implies pain; and therefore that all government implies an evil which ought to be minimised. they admitted that, though 'minimised,' it should not be annihilated. bentham had protested very forcibly that the 'rights of man' doctrine meant anarchy logically, and asserted that government was necessary, although a necessary evil. but the general tendency of his followers was to lay more stress upon the evil than upon the necessity. the doctrine was expounded with remarkable literary power by buckle,[ ] who saw in all history a conflict between protection and authority on the one hand and liberty and scepticism on the other. j. s. mill had begun as an unflinching advocate of the stern old utilitarianism of his father and ricardo. he had become, as fitzjames observes, 'humane' or 'sentimental' in later years. he tried, as his critics observe, to soften the old economic doctrines and showed a certain leaning to socialism. in regard to this part of his teaching, in which fitzjames took little interest, i shall only notice that, whatever his concessions, he was still in principle an 'individualist.' he maintained against the socialists the advantages of competition; and though his theory of the 'unearned increment' looks towards the socialist view of nationalisation of the land, he seems to have been always in favour of peasant proprietorship, and of co-operation as distinguished from state socialism. individualism, in fact, in one of its senses, for like other popular phrases it tends to gather various shades of meaning, was really the characteristic of the utilitarian school. thus in philosophy they were 'nominalists,' believing that the ultimate realities are separate things, and that abstract words are mere signs calling up arbitrary groups of things. politically, they are inclined to regard society as an 'aggregate,' instead of an 'organism.' the ultimate units are the individual men, and a nation or a church a mere name for a multitude combined by some external pressure into a collective mass of separate atoms.[ ] this is the foundation of mill's political theories, and explains the real congeniality of the let-alone doctrines to his philosophy. it gives, too, the key-note of the book upon 'liberty,' which fitzjames took for his point of assault. mill had been profoundly impressed by tocqueville, and, indeed, by an order of reflections common to many intelligent observers. what are to be the relations between democracy and intellectual culture? many distinguished writers have expressed their forebodings as to the future. society is in danger of being vulgarised. we are to be ground down to uniform and insignificant atoms by the social mill. the utilitarians had helped the lower classes to wrest the scourge from the hands of their oppressors. now the oppressed had the scourge in their own hands; how would they apply it? coercion looked very ugly in the hands of a small privileged class; but when coercion could be applied by the masses would they see the ugliness of it? would they not use the same machinery in order to crush the rich and the exalted, and take in the next place to crushing each other? shall we not have a dead level of commonplace and suffer, to use the popular phrase, from a 'tyranny of the majority,' more universal and more degrading than the old tyranny of the minority? this was the danger upon which mill dwelt in his later works. in his 'liberty' he suggests the remedy. it is nothing less than the recognition of a new moral principle. mankind, he said, individually or collectively, are justified in interference with others only by the need of 'self-protection.' we may rightfully prevent a man from hurting his neighbour, but not from hurting himself. if we carefully observe this precaution the individual will have room to expand, and we shall cease to denounce all deviations from the common type. here fitzjames was in partial sympathy with his antagonist. he reviewed 'liberty' in the 'saturday review' upon its first appearance; and although making certain reservations, reviewed it with warm approbation. mill and he were agreed upon one point. a great evil, perhaps the one great evil of the day, as fitzjames constantly said, is the prevalence of a narrow and mean type of character; the decay of energy; the excessive devotion to a petty ideal of personal comfort; and the systematic attempt to turn our eyes away from the dark side of the world. a smug, placid, contemptible optimism is creeping like a blight over the face of society, and suppressing all the grander aspirations of more energetic times. but in proportion to fitzjames's general agreement upon the nature of the evil was the vehemence of his dissent from the suggested remedy. he thought that, so far from meeting the evil, it tended directly to increase it. to diminish the strength of the social bond would be to enervate not to invigorate society. if mill's principles could be adopted, everything that has stimulated men to pursue great ends would lose its interest, and we should become a more contemptible set of creatures than we are already. i have tried to show how these convictions had been strengthened by circumstances. fitzjames's strong patriotic feeling, his pride in the british race and the british empire, generated a special antipathy to the school which, as he thought, took a purely commercial view of politics; which regarded the empire as a heavy burthen, because it did not pay its expenses, and which looked forward to a millennium of small shopkeepers bothered by no taxes or tariffs. during the 'pall mall gazette' period he had seen such views spreading among the class newly entrusted with power. statesmen, in spite of a few perfunctory attempts at better things, were mainly engaged in paltry intrigues, and in fishing for votes by flattering fools. the only question was whether the demagogues who were their own dupes were better or worse than the demagogues who knew themselves to be humbugs. carlyle's denunciations of the imbecility of our system began to be more congenial to his temper, and encouraged him in his heresy. carlyle's teachings were connected with erroneous theories indeed, and too little guided by practical experience. but the general temper which they showed, the contempt for slovenly, haphazard, hand-to-mouth modes of legislation, the love of vigorous administration on broad, intelligible principles, entirely expressed his own feeling. finally, in india he had, as he thought, found his ideal realised. there, with whatever shortcomings, there was at least a strong government; rulers who ruled; capable of doing business; of acting systematically upon their convictions; strenuously employed in working out an effective system; and not trammelled by trimming their sails to catch every temporary gust of sentiment in a half-educated community. his book, he often said, was thus virtually a consideration of the commonplaces of british politics in the light of his indian experience. he wished, he says in one of his letters, to write about india; but as soon as he began he felt that he would be challenged to give his views upon these preliminary problems: what do you think of liberty, of toleration, of ruling by military force, and so forth? he resolved, therefore, to answer these questions by themselves. i must add that this feeling was coloured by fitzjames's personal qualities. he could never, as i have pointed out, like mill himself; he pronounced him to be 'cold as ice,' a mere 'walking book,' and a man whose reasoning powers were out of all proportion to his 'seeing powers.' if i were writing about mill i should think it necessary to qualify this judgment of a man who might also be described as sensitive to excess, and who had an even feminine tenderness. but from fitzjames's point of view the judgment was natural enough. the two men could never come into cordial relations, and the ultimate reason, i think, was what i should call mill's want of virility. he might be called 'cold,' not as wanting in tenderness or enthusiasm, but as representing a kind of philosophical asceticism. whether from his early education, his recluse life, or his innate temperament, half the feelings which moved mankind seemed to him simply coarse and brutal. they were altogether detestable--not the perversions which, after all, might show a masculine and powerful nature. mill's view, for example, seemed to be that all the differences between the sexes were accidental, and that women could be turned into men by trifling changes in the law. to a man of ordinary flesh and blood, who had grounded his opinions, not upon books, but upon actual experience of life, such doctrines appear to be not only erroneous, but indicative of a hopeless thinness of character. and so, again, fitzjames absolutely refused to test the value of the great patriotic passions which are the mainsprings of history by the mere calculus of abstract concepts which satisfied mill. fitzjames, like henry viii., 'loved a man,' and the man of mill's speculations seemed to be a colourless, flaccid creature, who required, before all things, to have some red blood infused into his veins. utilitarianism of the pedantic kind--the utilitarianism which substitutes mere lay figures for men and women--or the utilitarianism which refuses to estimate anything that cannot be entered in a ledger, was thus altogether abhorrent to fitzjames. and yet he was, in his way, a utilitarian in principle; and his reply to mill must be given in terms of utilitarianism. to do that, it was only necessary to revert to the original principles of the sect, and to study austin and bentham with a proper infusion of hobbes. then it would be possible to construct a creed which, whatever else might be said of it, was not wanting in vigour or in danger of substituting abstractions for concrete realities. i shall try to indicate the leading points of this doctrine without following the order partly imposed upon fitzjames by his controversial requirements. nor shall i inquire into a question not always quite clear, namely, whether his interpretation of mill's principles was altogether correct. one fundamental ground is common to fitzjames and his antagonist. it is assumed in austin's analysis of 'law,' which is accepted by both.[ ] law properly means a command enforced by a 'sanction.' the command is given by a 'sovereign,' who has power to reward or punish, and is made effectual by annexing consequences, painful or pleasurable, to given lines of conduct. the law says, 'thou shalt not commit murder'; and 'shalt not' means 'if you commit murder you shall be hanged.' nothing can be simpler or more obviously in accordance with common sense. abolish the gaoler and the hangman and your criminal law becomes empty words. moreover, the congeniality of this statement to the individualist point of view is obvious. consider men as a multitude of independent units, and the problem occurs, how can they be bound into wholes? what must be the principle of cohesion? obviously some motive must be supplied which will operate upon all men alike. practically that means a threat in the last resort of physical punishment. the bond, then, which keeps us together in any tolerable order is ultimately the fear of force. resist, and you will be crushed. the existence, therefore, of such a sanction is essential to every society; or, as it may be otherwise phrased, society depends upon coercion. this, moreover, applies in all spheres of action. morality and religion 'are and always must be essentially coercive systems.'[ ] they restrain passion and restrain it by appealing to men's hopes and fears--chiefly to their fears. for one man restrained by the fear of the criminal law, a vast number are restrained by the 'fear of the disapprobation of their neighbours, which is the moral sanction, or by the fear of punishment in a future state of existence, which is the religious sanction, or by the fear of their own disapprobation, which may be called the conscientious sanction, and may be regarded as a compound case of the other 'two.'[ ] an objection, therefore, to coercion would be an objection to all the bonds which make association possible; it would dissolve equally states, churches, and families, and make even the peaceful intercourse of individuals impossible. in point of fact, coercion has built up all the great churches and nations. religions have spread partly by military power, partly by 'threats as to a future state,'[ ] and always by the conquest of a small number of ardent believers over the indifferent mass. men's lives are regulated by customs as streams are guided by dams and embankments. the customs like the dams are essentially restraints, and moreover restraints imposed by a small numerical minority, though they ultimately become so familiar to the majority that the restraint is not felt. all nations have been built up by war, that is, by coercion in its sternest form. the american civil war was the last and most striking example. it could not ultimately be settled by conveyancing subtleties about the interpretation of clauses in the constitution, but by the strong hand and the most energetic faith.[ ] war has determined whether nations are to be and what they are to be. it decides what men shall believe and in what mould their religion, laws, morals, and the whole tone of their lives shall be cast.[ ] nor does coercion disappear with the growth of civilisation. it is not abolished but transformed. lincoln and moltke commanded a force which would have crushed charlemagne and his paladins and peers like so many eggshells.[ ] scott, in the 'fair maid of perth,' describes the 'devil's dick of hellgarth' who followed the laird of wamphray, who rode with the lord of johnstone, who was banded with the earl of douglas, and earl, and lord, and laird, and the 'devil's dick' rode where they pleased and took what they chose. does that imply that scotland was then subject to force, and that now force has disappeared? no; it means that the force that now stands behind a simple policeman is to the force of douglas and his followers as the force of a line of battle ship to the force of an individual prize-fighter.[ ] it works quietly precisely because it is overwhelming. force therefore underlies and permeates every human institution. to speak of liberty taken absolutely as good is to condemn all social bonds. the only real question is in what cases liberty is good, and how far it is good. buckle's denunciation of the 'spirit of protection' is like praising the centrifugal and reviling the centripetal force. one party would be condemning the malignity of the force which was dragging us all into the sun, and the other the malignity of the force which was driving us madly into space. the seminal error of modern speculation is shown in this tendency to speak as advocates of one of different forces, all of which are necessary to the harmonious government of conduct.[ ] this insistence upon the absolute necessity of force or coercion, upon the theory that, do what you will, you alter only the distribution, not the general quantity of force, is the leading principle of the book. compulsion and persuasion go together, but the 'lion's share' of all the results achieved by civilisation is due to compulsion. parliamentary government is a mild and disguised form of compulsion[ ] and reforms are carried ultimately by the belief that the reformers are the strongest. law in general is nothing but regulated force,[ ] and even liberty is from the very nature of things dependent upon power, upon the protection, that is, of a powerful, well-organised intelligent government.[ ] hobbes's state of war simply threw an unpopular truth 'into a shape likely to be misunderstood.' there must be war, or evils worse than war. 'struggles there must always be unless men stick like limpets or spin like weathercocks.'[ ] hence we have our problem: liberty is good, not as opposed to coercion in general, but as opposed to coercion in certain cases. what, then, are the cases? force is always in the background, the invisible bond which corresponds to the moral framework of society. but we have still to consider what limits may be laid down for its application. the general reply of a utilitarian must of course be an appeal to 'expediency.' force is good, says fitzjames, following bentham again, when the end to be attained is good, when the means employed are efficient, and when, finally, the cost of employing them is not excessive. in the opposite cases, force of course is bad. here he comes into conflict with mill. for mill tries to lay down certain general rules which may define the rightful limits of coercive power. now there is a _prima facie_ ground of suspicion to a sound utilitarian about any general rules. mill's rules were of course regarded by himself as based upon experience. but they savoured of that absolute _à priori_ method which professes to deduce principles from abstract logic. here, therefore, he had, as his opponent thought, been coquetting with the common adversary and seduced into grievous error. a great part of the argument comes to this: mill advocates rules to which, if regarded as practical indications of certain obvious limitations to the utility of government interference, fitzjames has no objection. but when they are regarded as ultimate truths, which may therefore override even the principle of utility itself, they are to be summarily rejected. thus, as we shall see, the practical differences are often less than appears. it is rather a question of the proper place and sphere of certain rules than of their value in particular cases. yet at bottom there is also a profound divergence. i will try to indicate the main points at issue. mill's leading tenet has been already stated; the only rightful ground of coercing our neighbours is self-protection. using the benthamite terminology, we may say that we ought never to punish self-regarding conduct, or again interpolating the utilitarian meaning of 'ought' that such punishment cannot increase the general happiness. fitzjames complains that mill never tries to prove this except by adducing particular cases. any attempt to prove it generally, would, he thinks, exhibit its fallacy. for, in brief, the position would really amount to a complete exclusion of the moral element from all social action. men influence each other by public opinion and by law. now if we take public opinion, mill admits, though he disputes the inference from the admission, that a man must suffer the 'inconveniences strictly inseparable from the unfavourable opinion of others.' but men are units, not bundles of distinct qualities, some self-regarding, and others 'extra-regarding.' everyone has the strongest interest in the character of everyone else. a man alone in the world would no more be a man than a hand without a body would be a hand.[ ] we cannot therefore be indifferent to character because accidentally manifested in ways which do or do not directly and primarily affect others. drunkenness, for example, may hurt a man's health or it may make him a brute to his wife or neglectful of his social duties. as moralists we condemn the drunkard, not the results of his conduct, which may be this or that according to circumstances. to regard mill's principle as a primary moral axiom is, therefore, contradictory. it nullifies all law, moral or other, so far as it extends. but if mill's admission as to the 'unfavourable opinions' is meant to obviate this conclusion, his theory merely applies to positive law. in that case it follows that the criminal law must be entirely divorced from morality. we shall punish men not as wicked but as nuisances. to fitzjames this position was specially repulsive. his interest in the criminal law was precisely that it is an application of morality to conduct. make it a mere machinery for enabling each man to go his own way, virtuous or vicious, and you exclude precisely the element which constituted its real value. mill, when confronted with some applications of his theory, labours to show that though we have no right to interfere with 'self-regarding' vice, we may find reasons for punishing conspiracies in furtherance of vice. 'i do not think,' replies fitzjames, 'that the state ought to stand bandying compliments with pimps.' it ought not to say that it can somehow find an excuse for calling upon them to desist from 'an experiment in living' from which it dissents. 'my feeling is that if society gets its grip on the collar of such a fellow, it should say to him, "you dirty fellow, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion should be printed by the lash on your bare back. that question will be determined without the smallest reference to your wishes or feelings, but as to the nature of my opinion about you there can be no doubt."'[ ] hence the purely 'deterrent' theory of punishment is utterly unsatisfactory. we should punish not simply to prevent crime, but to show our hatred of crime. criminal law is 'in the nature of a persecution of the grosser forms of vice, and an emphatic assertion of the principle that the feeling of hatred and the desire of vengeance above mentioned, (i.e. the emotion, whatever its proper name, produced by the contemplation of vice on healthily constituted minds) 'are important elements in human nature, which ought in such cases to be satisfied in a regular public and legal manner.[ ] this is one of the cases in which fitzjames fully recognises the importance of some of mill's practical arguments, though he disputes their position in the theory. the objections to making men moral by legislation are, according to him, sufficiently recognised by the benthamite criterion condemning inadequate or excessively costly means. the criminal law is necessarily a harsh and rough instrument. to try to regulate the finer relations of life by law, or even by public opinion, is 'like trying to pull an eyelash out of a man's eye with a pair of tongs: they may pull out the eye, but they will never get hold of the eyelash.'[ ] but it is not the end, but the means that are objectionable. fitzjames does not object in principle even to sumptuary laws. he can never, he says, look at a lace machine, and think of all the toil and ingenuity wasted, with patience.[ ] but he admits that repressive laws would be impossible now, though in a simpler age they may have been useful. generally, then, the distinction between 'self-regarding' and 'extra-regarding' conduct is quite relevant, so far as it calls attention to the condition of the probable efficacy of the means at our disposal. but it is quite irrelevant in a definition of the end. the end is to suppress immorality, not to obviate particular inconveniences resulting from immorality; and one great use of the criminal law is that, in spite of its narrow limitations, it supplies a solid framework round which public opinion may consolidate itself. the sovereign is, in brief, a great teacher of the moral law so far as his arm can reach. the same principles are applied in a part of the book which probably gave more offence than any other to his liberal opponents. the state cannot be impartial in regard to morals, for morality determines the bonds which hold society together. can it, then, be indifferent in regard to religions? no; for morality depends upon religion, and the social bond owes its strength to both. the state can be no more an impartial bystander in one case than in the other. the 'free church in a free state' represents a temporary compromise, not an ultimate ideal. the difference between church and state is not a difference of provinces, but a difference of 'sanctions.' the spiritual and the secular sanctions apply to the same conduct of the same men. both claim to rule all life, and are ultimately compelled to answer the fundamental questions. to separate them would be to 'cut human life in two,' an attempt ultimately impossible and always degrading. to answer fundamental questions, says mill, involves a claim to infallibility. no, replies fitzjames, it is merely a claim to be right in the particular case, and in a case where the responsibility of deciding is inevitably forced upon us. if the state shrinks from such decisions, it will sink to be a mere police, or, more probably, will at last find itself in a position where force will have to decide what the compromise was meant to evade. once more, therefore, the limits of state action must be drawn by expediency, not by an absolute principle. the benthamite formula applies again. is the end good, and are the means adequate and not excessively costly? mill's absolute principle would condemn the levy of a shilling for a school, if the ratepayer objected to the religious teaching. fitzjames's would, he grants, justify the inquisition, unless its doctrines could be shown to be false or the means of enforcing them excessive or inadequate--issues, he adds, which he would be quite ready to accept.[ ] has, then, a man who believes in god and a future life a moral right to deter others from attacking those doctrines by showing disapproval? yes, 'if and in so far as his opinions are true.'[ ] to attack opinions on which the framework of society depends is, and ought to be, dangerous. it should be done, if done at all, sword in hand. otherwise the assailant deserves the fate of the wanderer in scott's ballad: curst be the coward that ever he was born that did not draw the sword before he blew the horn.[ ] such opinions seem to justify persecution in principle. fitzjames discusses at some length the case of pontius pilate, to which i may notice he had often applied parallels from ram singh and other indian experiences. pontius pilate was in a position analogous to that of the governor of a british province. he decides that if pilate had acted upon mill's principles he would have risked 'setting the whole province in a blaze.' he condemns the roman persecutors as 'clumsy and brutal'; but thinks that they might have succeeded 'in the same miserable sense in which the spanish inquisition succeeded,' had they been more systematic, and then would at least not have been self-stultified. had the roman government seen the importance of the question, the strife, if inevitable, might have been noble. it would have been a case of 'generous opponents each working his way to the truth from opposite sides,' not the case of a 'touching though slightly hysterical victim, mauled from time to time by a sleepy tyrant in his intervals of fury.'[ ] still, it will be said, there would have been persecution. i believe that there was no man living who had a more intense aversion than fitzjames to all oppression of the weak, and, above all, to religious oppression. it is oddly characteristic that his main precedent is drawn from our interference with indian creeds. we had enforced peace between rival sects; allowed conversion; set up schools teaching sciences inconsistent with hindoo (and with christian?) theology; protected missionaries and put down suttee and human sacrifices. in the main, therefore, we had shown 'intolerance' by introducing toleration. fitzjames had been himself accused, on the occasion of his native marriages bill, with acting upon principles of liberty, fraternity, and equality. his point, indeed, is that a government, even nervously anxious to avoid proselytism, had been compelled to a upon doctrines inconsistent with the religions of its subjects. i will not try to work out this little logical puzzle. in fact, in any case, he would really have agreed with mill, as he admits, in regard to every actual question of the day. he admitted that the liberal contention had been perfectly right under the special circumstances. their arguments were quite right so long as they took the lower ground of expediency, though wrong when elevated to the position of ultimate principles, overruling arguments from expediency.[ ] toleration, he thinks, is in its right place as softening and moderating an inevitable conflict. the true ground for moral tolerance is that 'most people have no right to any opinion whatever upon these subjects,' and he thinks that 'the ignorant preacher' who 'calls his betters atheists is not guilty of intolerance, but of rudeness and ignorance.'[ ] i must confess that this makes upon me the impression that fitzjames was a little at a loss for good arguments to support what he felt to be the right mode of limiting his principles. the difficulty was due, i think, to the views which he shared with mill. the utilitarian point of view tends to lower the true ground of toleration, because it regards exclusively the coercive elements of law. i should hold that free thought is not merely a right, but a duty, the exercise of which should be therefore encouraged as well as permitted; and that the inability of the coarse methods of coercion to stamp out particular beliefs without crushing thought in general, is an essential part of the argument, not a mere accident of particular cases. our religious beliefs are not separate germs, spreading disease and capable of being caught and suppressed by the rough machinery of law, but parts of a general process underlying all law, and capable of being suppressed only at the cost of suppressing all mental activity. the utilitarian conception dwells too much upon the 'sanctions,' and too little on the living spirit, of which they are one expression. fitzjames's view may so far be summed up by saying that he denies the possibility of making the state a neutral in regard to the moral and religious problems involved. morality, again, coincides with 'utility '; and the utility of laws and conduct in general is the criterion which we must apply to every case by the help of the appropriate experience. we must therefore reject every general rule in the name of which this criterion may be rejected. this applies to mill's doctrine of equality, as well as to his doctrine of non-interference. i pass over some comparatively commonplace remarks upon the inconsistency of 'liberty' and 'equality.' the most unequivocal contradiction comes out in regard to mill's theory of the equality of the sexes. there was no dogma to which mill was more attached or to which fitzjames was more decidedly opposed. the essence of the argument, i take it, is this:[ ] a just legislator, says mill, will treat all men as equals. he must mean, then, that there are no such differences between any two classes of men as would affect the expediency of the applying the same laws to both. what is good for one must therefore be good for another. now, in the first place, as fitzjames urges, there is no presumption in favour of this hypothesis; and, in the next place, it is obviously untrue in some cases. differences of age, for example, must be taken into account unless we accept the most monstrous conclusions. how does this apply to the case of sex? mill held that the difference in the law was due simply to the superiority of men to women in physical strength. fitzjames replies that men are stronger throughout, stronger in body, in nerve and muscle, in mind and character. to neglect this fact would be silly; but if we admit it, we must admit its relevance to legislation. marriage, for example, is one of the cases with which law and morality are both compelled to deal. now the marriage contract necessarily involves the subordination of the weaker to the stronger. this, says fitzjames, is as clearly demonstrable as a proposition of euclid.[ ] for, either the contract must be dissoluble at will or the rule must be given to one, and if to one, then, as every one admits, to the husband. we must then choose between entire freedom of divorce and the subordination of the wife. if two people are indissolubly connected and differ in opinions, one must give way. the wife, thinks fitzjames, should give way as the seaman should give way to his captain; and to regard this as humiliating is a mark not of spirit but of a 'base, unworthy, mutinous disposition.'[ ] if, to avoid this, you made marriage dissoluble, you would really make women the slaves of their husbands. in nine cases out of ten, the man is the most independent, and could therefore tyrannise by the threat of dismissing his wife. by trying to forbid coercion, you do not really suppress it, but make its action arbitrary. he apologises to a lady in a letter referring to another controversy upon the same subject in which he had used rather strong language about masculine 'superiority.' 'when a beast is stirred up,' he says, 'he roars rather too loud,' and 'this particular beast loves and honours and worships women more than he can express, and owes most of the happiness of his life to them.' by 'superior' he only meant 'stronger'; and he only urges a 'division of labour,' and a correspondence between laws and facts. this was, i think, strictly true, and applies to other parts of his book. partly from pugnacity and partly from contempt of sentimentalism, he manages to put the harsher side of his opinions in front. this appears as we approach the ultimate base of his theory. i have spoken more than once of fitzjames's respect for hobbes. for hobbes's theory of sovereignty, and even its application by the ultramontane de maistre, had always an attraction for him. hobbes, with his logical thoroughness, seems to carry the foundations of policy down to the solid rock-bed of fact. life is a battle; it is the conflict of independent atoms; with differing aims and interests. the strongest, in one way or other, will always rule. but the conflict may be decided peacefully. you may show your cards instead of playing out the game; and peace may be finally established though only by the recognition of a supreme authority. the one question is what is to be the supreme authority? with de maistre it was the church; with fitzjames as with hobbes it was the state. the welfare of the race can only be secured by order; order only by the recognition of a sovereign; and when that order, and the discipline which it implies, are established, force does not cease to exist: on the contrary, it is enormously increased in efficacy; but it works regularly and is distributed harmoniously and systematically instead of appearing in the chaotic clashing of countless discordant fragments. the argument, which is as clear as euclid in the case of marriage, is valid universally. society must be indissoluble; and to be indissoluble must recognise a single ultimate authority in all disputes. peace and order mean subordination and discipline, and the only liberty possible is the liberty which presupposes such 'coercion.' the theory becomes harsh if by 'coercion' we mean simply 'physical force' or the fear of pain. a doctrine which made the hangman the ultimate source of all authority would certainly show brutality. but nothing could be farther from fitzjames's intention than to sanction such a theory. his 'coercion' really includes an appeal to all the motives which make peace and order preferable to war and anarchy. but it is, i also think, a defect in the book that he does not clearly explain the phrase, and that it slips almost unconsciously into the harsher sense. he tells us, for example, that 'force is dependent upon persuasion and cannot move without it.'[ ] nobody can rule without persuading his fellows to place their force at his disposal; and therefore he infers 'persuasion is a kind of force.' it acts by showing people the consequences of their conduct. he calls controversy, again, an 'intellectual warfare,' which, he adds, is far more searching and effective than legal persecution. it roots out the weaker opinion. and so, when speaking of the part played by coercion in religious developments, he says that 'the sources of religion lie hid from us. all that we know is that now and again in the course of ages someone sets to music the tune which is haunting millions of ears. it is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords, and to force the unmusical mass to listen to them.'[ ] the word 'force' in the last sentence shows the transition. undoubtedly force in the sense of physical and military force has had a great influence in the formation both of religions and nations. we may say that such force is 'essential'; as a proof of the energy and often as a condition of the durability of the institutions. but the question remains whether it is a cause or an effect; and whether the ultimate roots of success do not lie in that 'kind of force' which is called 'persuasion'; and to which nobody can object. if coercion be taken to include enlightenment, persuasion, appeals to sympathy and sentiment, and to imagination, it implies an ultimate social groundwork very different from that generally suggested by the word. the utilitarian and individualist point of view tends necessarily to lay stress upon bare force acting by fear and physical pain. the utilitarian 'sanctions' of law must be the hangman and the gaoler. so long as society includes unsocial elements it must apply motives applicable to the most brutal. the hangman uses an argument which everyone can understand. in this sense, therefore, force must be the ultimate sanction, though it is equally true that to get the force you must appeal to motives very different from those wielded by the executioner. the application of this analogy of criminal law to questions of morality and religion affects the final conclusions of the book. fitzjames's whole position, if i have rightly interpreted him, depends essentially upon his moral convictions. the fault which he finds with mill is precisely that mill's theory would unmoralise the state. the state, that is, would be a mere association for mutual insurance against injury instead of an organ of the moral sense of the community. what, then, is morality? how are we to know what is right and wrong, and what are our motives for approving and disapproving the good and the bad? fitzjames uses phrases, especially in his letters, where he is not arguing against an adversary, which appear to be inconsistent, if not with utilitarianism, at least with the morality of mere expediency. lord lytton, some time after this, wrote to him about his book, and he replies to the question, 'what is a good man?'--'a man so constituted that the pleasure of doing a noble thing and the pain of doing a base thing are to him the greatest of pleasures and pains.' he was fond, too, of quoting, with admiration, kant's famous saying about the sublimity of the moral law and the starry heavens. the doctrine of the 'categorical imperative' would express his feelings more accurately than bentham's formulæ. but his reasoning was different. he declares himself to be a utilitarian in the sense that, according to him, morality must be built upon experience. 'the rightness of an action,' he concludes, 'depends ultimately upon the conclusions at which men may arrive as to matters of fact.'[ ] this, again, means that the criterion is the effect of conduct upon happiness. here, however, we have the old difficulty that the estimate of happiness varies widely. fitzjames accepts this view to some extent. happiness has no one definite meaning, although he admits, in point of fact, there is sufficient resemblance between men to enable them to form such morality as actually exists. but is such morality satisfactory? can it, for example, give sufficient reasons for self-sacrifice--that is, neglect of my own happiness? self-sacrifice, he replies, in a strict sense, is impossible; for it could only mean acting in opposition to our own motives of whatever kind--which is an absurdity.[ ] but among real motives he admits benevolence, public spirit, and so forth, and fully agrees that they are constantly strong enough to overpower purely self-regarding motives. so far, it follows, the action of such motives may be legitimately assumed by utilitarians. he is, therefore, not an 'egoistic' utilitarian. he thinks, as he says in a letter referring to his book, that he is 'as humane and public-spirited as his neighbours.' a man must be a wretched being who does not care more for many things outside his household than for his own immediate pains and pleasures. had he been called upon to risk health or life for any public object in india, and failed to respond, he would never have had a moment's peace afterwards. this was no more than the truth, and yet he would sometimes call himself 'selfish' in what i hold to be a non-natural sense. he frequently complains of the use of such words as 'selfishness' and 'altruism' at all. selfishness, according to him, could merely mean that a man acts from his own motives, and altruism would mean that he acted from somebody else's motives. one phrase, therefore, would be superfluous, and the other absurd. he insists, however, that, as he puts it, 'self is each man's centre, from which he can no more displace himself than he can leap off his own shadow.'[ ] since estimates of happiness differ, the morality based upon them will also differ.[ ] and from selfishness in this sense two things follow. first, i have to act upon my own individual conception of morality. if, then, i meet a person whose morality is different from mine, and who justifies what i hold to be vices, i must behave according to my own view. if i am his ruler, i must not treat him as a person making a possibly useful experiment in living, but as a vicious brute, to be restrained or suppressed by all available means. and secondly, since self is the centre, since a 'man works from himself outwards,' it is idle to propose a love of humanity as the guiding motive to morality. 'humanity is only "i" writ large, and zeal for humanity generally means zeal for my notions as to what men should be and how they should live.'[ ] this, therefore, leads to the ultimate question: what, in the utilitarian phrase, is the 'sanction' of morality? here his answer is, on one side at least, emphatic and unequivocal. mill and the positivists, according to him,[ ] propose an utterly unsatisfactory motive for morality. the love of 'humanity' is the love of a mere shadowy abstraction. we can love our family and our neighbours; we cannot really care much about the distant relations whom we shall never see. nay, he holds that a love of humanity is often a mask for a dislike of concrete human beings. he accuses mill of having at once too high and too low an opinion of mankind.[ ] mill, he thinks, had too low an estimate of the actual average englishman, and too high an estimate of the ideal man who would be perfectly good when all restraints were removed. he excused himself for contempt of his fellows by professing love for an abstraction. to set up the love of 'humanity,' in fact, as a governing principle is not only impracticable, but often mischievous. a man does more good, as a rule, by working for himself and his family, than by acting like a 'moral don quixote,[ ] who is capable of making love for men in general the ground of all sorts of violence against men in particular.' indeed, there are many men whom we ought not to love. it is hypocrisy to pretend to love the thoroughly vicious. 'i do not love such people, but hate them,' says fitzjames; and i do not want to make them happy, because i could only do so by 'pampering their vices.'[ ] here, therefore, he reaches the point at which his utilitarian and his puritanical prepossessions coincide. all law, says the utilitarian, implies 'sanctions'--motives equally operative upon all members of society; and, as the last resort, so far as criminal law is concerned, the sanction of physical suffering. what is the corresponding element in the moral law? to this, says fitzjames, no positivist can give a fair answer. he has no reply to anyone who says boldly, 'i am bad and selfish, and i mean to be bad and selfish.'[ ] the positivists can only reply, 'our tastes differ.' the great religions have answered differently. we all know the christian answer, and 'even the buddhists had, after a time, to set up a hell.' the reason is simple. you can never persuade the mass of men till you can threaten them. religions which cannot threaten the selfish have no power at all; and till the positivists can threaten, they will remain a mere 'ritualistic social science association.' briefly, the utilitarian asks, what is the sanction of morality? and the puritan gives the answer, hell. here, then, apparently, we have the keystone of the arch. what is the good of government in general? to maintain the law? and what is the end of the law? to maintain morality. and why should we maintain morality? to escape hell. this, according to some of his critics, was fitzjames's own conclusion. it represents, perhaps in a coarse form, an argument which fitzjames was never tired of putting since the days when he worked out the theory of hell at school. it would, however, be the grossest injustice to him if i left it to be supposed for a moment that he accepted this version of his doctrine. he repudiated it emphatically; and, in fact, he modifies the doctrine so much that the real question is, whether he does not deprive it of all force. no one was more sensible of the moral objections to the hell of popular belief. he thought that it represented the creator as a cruel and arbitrary tyrant, whose vengeance was to be evaded by legal fictions. still, the absolute necessity of some 'sanction' of a spiritual kind seemed clear to him. without it, every religion would fall to pieces, as every system of government would be dissolved without 'coercion.' and this is the final conclusion of his book in chapters with which he was, as i find from his letters, not altogether satisfied. he explains in the preface to his second edition that the question was too wide for complete treatment in the limits. briefly the doctrine seems to be this. the utilitarian or positivist can frame a kind of commonplace morality, which is good as far as it goes. it includes benevolence and sympathy; but hardly gets beyond ordering men to love their friends and hate their enemies. to raise morality to a higher strain, to justify what it generally called self-sacrifice, to make men capable of elevated action, they require something more. that something is the belief in god and a future world. 'i entirely agree,' he says, 'with the commonplaces about the importance of these doctrines.'[ ] 'if they be mere dreams life is a much poorer and pettier thing, and mere physical comfort far more important than has hitherto been supposed. morality, he says, depends on religion. if it be asked whether we ought to rise beyond the average utilitarian morality, he replies, 'yes, if there is a god and a future state. no, if there is no god and no future state.'[ ] and what is to be said of those doctrines, the ultimate foundation, if not of an average morality, yet of all morality above the current commonplaces? here we have substantially the religious theory upon which i have already dwelt. he illustrates it here by quotations from mill, who admits the 'thread of consciousness' to be an ultimate inexplicability, and by a passage from carlyle, 'the greatest poet of the age,' setting forth the mystery of the 'me.' he believes in a being who, though not purely benevolent, has so arranged the universe, that virtue is the law prescribed to his creatures. the law is stern and inflexible, and excites a feeling less of love than of 'awful respect.' the facts of life are the same upon any theory; but atheism makes the case utterly hopeless. a belief in god is inextricably connected with a belief in morality, and if one decays the other will decay with it. still it is idle to deny that the doctrines are insusceptible of proof. 'faith says, i will, _though_ i am not sure; doubt says, i will not, _because_ i am not sure; but they both agree in not being sure.'[ ] he utterly repudiates all the attempts made by newman and others to get out of the dilemma by some logical device for transmuting a mere estimate of probabilities into a conclusion of demonstrable certitude. we cannot get beyond probabilities. but we have to make a choice and to make it at our peril. we are on a pass, blinded by mist and whirling snow. if we stand still, 'we shall be frozen to death. if we take the wrong road, we shall be dashed to pieces. we do not certainly know whether there is any right one. what must we do? "be strong and of a good courage." act for the best, hope for the best, and take what comes. above all let us dream no dreams and tell no lies, but go our way, wherever we may land, with our eyes open and our heads erect. if death ends all, we cannot meet it better. if not, let us enter the next scene with no sophistry in our mouths and no masks on our faces.'[ ] a conclusion of this kind could commend itself neither to the dogmatist who maintains the certainty of his theories, nor to the sceptic who regards them as both meaningless and useless. i have dwelt upon them so long because they seem to me to represent a substantially logical and coherent view which commended itself to a man of very powerful intellect, and which may be presumed to represent much that other people hold less distinctly. the creed of a strong man, expressed with absolute sincerity, is always as interesting as it is rare; and the presumption is that it contains truths which would require to be incorporated in a wider system. at any rate it represents the man; and i have therefore tried to expound it as clearly as i could. i may take it for granted in such references as i shall have to make in the following pages to my brother's judgment of the particular events in which he took part. mill himself said, according to professor bain,[ ] that fitzjames 'did not know what he was arguing against, and was more likely to repel than to attract.' the last remark, as professor bain adds, was the truest. mill died soon afterwards and made no reply, if he ever intended to reply. the book was sharply criticised from the positivist point of view by mr. harrison, and from mill's point of view by mr. john morley in the 'fortnightly review' (june and august ). fitzjames replied to them in a preface to a second edition in . he complains of some misunderstandings; but on the whole it was a fair fight, which he did not regret and which left no ill-feeling. iii. dundee election the last letter of the series had hardly appeared in the 'pall mall gazette,' when fitzjames received an application to stand for liverpool in the liberal interest. he would be elected without expense to himself. he thought, as he observes, that he should find parliamentary life 'a nuisance'; but a seat in the house might of course further both his professional prospects and his schemes of codification. he consulted coleridge, who informed him that, if government remained in office, a codification commission would be appointed. coleridge was also of opinion that, in that event, fitzjames's claims to a seat on the commission would be irresistible. as, however, it was intended that the commissioners should be selected from men outside parliament and independent of political parties, fitzjames would be disqualified by an election for liverpool. upon this he at once declined to stand. a place in a codification commission would, he said, 'suit him better than anything else in the world.' coleridge incidentally made the remark, which seems to be pretty obvious, that the authorship of the letters upon 'liberty, equality, fraternity' would be a rather awkward burthen for a liberal candidate to carry. for some time fitzjames might hope, though he hoped with trembling, that something would come of his various codifying projects. it was reported that mr. bruce (lord aberdare) would introduce the homicide bill during russell gurney's absence. coleridge was able after many delays to introduce the evidence bill. but it was crowded out of sight by more exciting measures, and it was only upon its final withdrawal on the last day of the session (august , ) that he could say a few words about it.[ ] the bill was apparently ordered to be printed, but never became public. it went to the parliamentary limbo with many of its brethren. in the session of the government was beginning to totter. the ministerial crisis of march, upon the defeat of the irish university bill, was followed by mr. gladstone's resignation. he returned to office, but had to attend to questions very different from codification. 'my castle of cards has all come down with a run,' writes fitzjames (march , ); 'gladstone is out of office; coleridge is going out; my evidence act and all my other schemes have blown up--and here am i, a briefless, or nearly briefless, barrister, beginning the world all over again.... i have some reason to think that, if gladstone had stayed in, i should, in a few weeks, have been solicitor-general, and on my way to all sorts of honour and glory.' however, he comforts himself with various proverbs. his favourite saying on these occasions, which were only too common, was 'patience, and shuffle the cards.' the gladstone ministry, however, was patched up, and things looked better presently. 'i am,' he says in may, 'in the queerest nondescript position--something between solicitor-general and mr. briefless--with occasional spurts of business' which look promising, but in frequency resemble angelic visits. on june he announces, however, that a whole heap of briefs 'has come in, and, to crown all, a solemn letter came yesterday from the lord chancellor, offering to appoint me to act as circuit judge in the place of lush, who stays in town to try that lump of iniquity, the claimant.' he was, accordingly, soon at the winchester assizes, making a serious experiment in the art of judging, and finding the position thoroughly congenial. he is delighted with everything, including chief baron kelly, a 'very pleasant, chatty old fellow,' who had been called to the bar fifty years before, and was still bright and efficient. fitzjames's duties exactly suit him. they require close attention, without excessive labour. he could judge for nine hours a day all the year round without fatigue. he gets up at . , and so secures two or three hours, 'reading his books with a quiet mind.' then there is the pleasure of choosing the right side, instead of having to take a side chosen by others; while 'the constant little effort to keep counsel in order, and to keep them also in good humour, and to see that all things go straight and well, is to me perfectly exquisite.' his practice in journalism has enabled him to take notes of the evidence rapidly, without delaying the witnesses; and he is conscious of doing the thing well and giving satisfaction. the leader of the circuit pays him 'a most earnest compliment,' declaring that the 'whole bar are unanimous in thinking the work done as well as possible. this,' he says, 'made me very happy, for i know, from knowing the men and the bar, it is just the case in which one cannot suspect flattery. if there are independent critics in this world, it is british barristers.' briefly, it is a delicious 'pisgah sight of palestine.' if, in indian phrase, he could only become 'pucka' instead of 'kucha'--a permanent instead of temporary judge--he would prefer it to anything in the world. he feels less anxious, and declares that he has 'not written a single article this week'; though he manages when work is slack, to find time for a little writing, such as the chapter in hunter's 'life of lord mayo.' the assizes were being held at salisbury soon afterwards, when fitzjames was summoned to london by a telegram from coleridge. coleridge had to tell him that if he could stand for dundee, where a vacancy had just occurred, he would probably be elected; and that, if elected, he would probably, though no pledge could be given, be made solicitor-general. lord romilly had retired from the mastership of the rolls in march. the appointment of his successor was delayed until the judicature act, then before parliament, was finally settled. as, however, coleridge himself or the solicitor-general, sir g. jessel, would probably take the place, there would be a vacancy in the law offices. fitzjames hesitated; but, after consulting lord selborne, and hearing coleridge's private opinion that he would be appointed solicitor-general even if he failed to win the seat, he felt that it would be 'faint-hearted' to refuse. he was to sit as judge, however, at dorchester, and thought that it would be improper to abandon this duty. the consequent delay, as it turned out, had serious effects. from dorchester he hurried off to dundee. he writes from dundee on sunday, july , , giving an account of his proceedings. he had been up till a.m. on the morning of the previous tuesday, and rose again at eight. he did not get to bed till a.m. on wednesday. he was up at six, went to dorchester, and attended a 'big dinner,' without feeling sleepy. on thursday he tried prisoners for four hours; then went to london, and 'rushed hither and thither' from p.m. till a.m. on friday. he was up again at six, left by the . train, reached dundee at . , and was worried by deputations till past twelve. part of the liberal party had accepted another candidate, and met him with a polite request that he would at once return to the place whence he came. he preferred to take a night's rest and postpone the question. on saturday he again 'rushed hither and thither' all day; spoke to , people for nearly two hours, was 'heckled' for another hour in stifling heat, and had not 'the slightest sensation of fatigue,' except a trifling headache for less than an hour. he was 'surprised at his own strength,' feeling the work less than he had felt the corresponding work at harwich in . the struggle lasted till august , the day of polling. fitzjames had to go through the usual experience of a candidate for a large constituency: speaking often six times a day in the open air; addressing crowded meetings at night; becoming involved in a variety of disputes, more or less heated and personal in their nature; and seeing from the inside the true nature of the process by which we manufacture legislators. it was the second election in dundee affected by disraeli's extension of the suffrage, and, i believe, the first election in the country which took place under the provisions of the ballot act. the work was hard and exciting, especially for a novice who had still to learn the art of speaking to large public meetings; but it was such work as many eager politicians would have enjoyed without reserve. to fitzjames it was a practical lesson in politics, to which he submitted with a kind of rueful resignation, and from which he emerged with intensified dislike of the whole system concerned. dundee was a safe liberal seat; the working classes under the new system had an overwhelming majority; and no tory candidate had ventured to offer himself.[ ] fitzjames was virtually the government candidate. one of his opponents, mr. yeaman, had been provost of dundee, but his fame does not appear to have spread beyond his native town. while fitzjames was lingering at dorchester another candidate had come forward, mr. edward jenkins, known as the author of 'ginx's baby.' this very clever little book, which had appeared a couple of years previously, had struck the fancy of the public, and run through a great number of editions. it reflected precisely the school of opinion which fitzjames most cordially despised. the morality was that of dickens's 'christmas carol,' and the political aim that of sentimental socialism. thus, though all three candidates promised to support mr. gladstone's government, one of fitzjames's rivals represented the stolid middle-class prejudices, and a second the unctuous philanthropic enthusiasm, which he had denounced with his whole force in 'liberty, equality, fraternity.' no combination could have been contrived which would have set before him more clearly the characteristics of the party of which he still considered himself to be a member. from the beginning he felt himself to be, in some respects, in a false position. 'my dislike of the business,' he says at starting, 'is not the least due to weakness or over-delicacy, but to a deep-rooted disgust at the whole system of elections and government by constituencies like this.' three days' experience do not change his view. it is, he says, 'hateful work--such a noise, such waste of time, such unbusinesslike, raging, noisy, irregular ways, and such intolerable smallness in the minds of the people, that i wonder i do not do it even worse.' he could scarcely stand a month of it for a certainty of the solicitor-generalship. on the day before the poll he observes that 'it is wretched, paltry work.' a local paper is full of extracts from his 'liberty, equality, fraternity,' which, he fears, will not help him. however, 'it was very good fun writing it.' and meanwhile, mr. jenkins was making speeches which showed that 'his heart beat in unison with the people's,' and speaking 'earnest words' on sunday afternoon to boys on a training ship. even an enthusiastic speech from one of fitzjames's supporters at a large meeting, which was followed by a unanimous vote of approval, 'nearly made him sick--it was so unspeakably fulsome.' it was no wonder that he should be inclined to be disgusted with the whole business. considering the general uncongeniality of the surroundings, the most remarkable thing was that he made so good a fight as he did. he was encouraged by the presence of his brother by adoption and affection, frederick gibbs. 'no one,' he reports, 'could be kinder or more sensible; and he is as cool as a cucumber, and not shocked by my cynical heresies.' from frederick gibbs, as he afterwards reports, he has received the 'best and wisest' advice on every point. the 'cynical heresies' to which he refers were simply those already expounded in his book. he said precisely what he thought, and as vigorously as he could say it. a campaign paper, called the 'torch,' published by some of his supporters, sums up the difference between him and mr. jenkins. 'mr. stephen's liberalism,' says the 'torch,' 'is much nearer to radicalism than the liberalism of mr. jenkins. mr. stephen's liberalism is the liberalism of self-help, of individualism, of every form of conscious industry and energy. it is the only liberalism which has the smallest chance of success in scotland. the liberalism of mr. jenkins is the liberalism of state aid, of self-abasement, of incapacity and indolence'; and leads straight to sentimental communism. according to a 'working man' who writes to the paper, mr. jenkins virtually proposes that the industrious part of the working classes are to support the children of the lazy, idle, and improvident--a principle which many people now seem inclined to regard as defensible. fitzjames's accounts of his own speeches are to the same purpose. he has repeated, he says, what he has always and everywhere maintained--that people must 'help themselves, and that every class of society is bound together, and is in one boat and on one bottom.' i have read the reports in the local newspapers, which fully confirm this statement; but i need only notice one point. he manages to get in a good word for codification, and illustrates his argument by an ingenious parallel with bradshaw's 'railway guide.' that 'code' is puzzling enough as it is; but what would be our state if we had to discover our route by examining and comparing all the orders given by the directors of railways from their origin, and interpreting them in accordance with a set of unwritten customs, putting special meanings upon the various terms employed? the educated classes, as the 'torch' asserts, and as his supporters told him, were entirely in his favour; and, had the old suffrage remained unaltered, no one else would have had a chance against him. not only so, but they declared that every speech he made was converting the working classes. he is told that, if he had longer time, he would be able to 'talk them all round.' his speeches obviously impressed his hearers for the time. 'you cannot imagine,' he says on august , 'how well i get on with the people here, working men as well as gentry. they listen with the deepest attention to all i say, and question me with the keenest intelligence.' he admits, indeed, that there is no political sympathy between him and his hearers. they want a 'thorough-going radical,' and he cannot pretend to be one--'it is forced out on all occasions.' in fact, he was illustrating what he had said in his book. he heartily liked the individual working man; but he had no sympathy with the beliefs which find favour with the abstract or collective working man, who somehow manages to do the voting. they seem to have admired his force, size, and manliness. 'eh, but ye're a wiselike mon ony way,' says a hideous old woman (as he ungratefully calls her), which, he is told, is the highest of scottish compliments to his personal appearance. this friendly feeling, and the encouragement of his supporters, and the success of his speeches, raised his hopes by degrees, and he even 'felt a kind of pride in it,' though 'it is poor work educating people by roaring at them.' towards the end he even thinks it possible that he may win, and, if so, 'it will be an extraordinary triumph, for i have never asked one single person to support me, and i have said the most unpopular things to such an extent that my supporters told me i was over-defiant, or, indeed, almost rude.' however, it was not to be. whether, as his friends said, he was too good for the place, or whether less complimentary reasons alleged by his opponents might be justified, he was hopelessly behind at the polls. he received , votes; mr. jenkins, , ; and mr. yeaman, , --or rather more than both his opponents together. fitzjames comforts himself by the reflection that both he and mr. jenkins had shown their true colours; that the respectable people had believed in him 'with a vengeance,' and that the working men were beginning to like him. but mr. jenkins's views were, and naturally must be, the most popular. fitzjames's chief supporter gave a dinner in his honour, when his health was drunk three times with boundless enthusiasm, and promises were made of the heartiest support on a future occasion. the fulfilment of the promises was not required; and fitzjames, in spite of occasional overtures, never again took an active part in a political contest. in , lord beaconsfield wrote to lord lytton: 'it is a thousand pities that j. f. stephen is a judge; he might have done anything and everything as leader of the future conservative party.' lord beaconsfield was an incomparably better judge than i can pretend to be of a man's fitness for such a position. the opinion, too, which he thus expressed was shared by some of fitzjames's friends, who thought that his masculine force of mind and downrightness of character would have qualified him to lead a party effectively. i shall only say that it is idle to speculate on what he might haw done had he received the kind of training which seems to be generally essential to success in political life. he might, no doubt, have learnt to be more tolerant of the necessary compromises and concessions to the feelings engendered by party government. as it was, he had, during his early life, taken so little interest in the political movements of the day, and, before he was dragged for a time into the vortex, had acquired so many prepossessions against the whole system, that i cannot but think that he would have found a difficulty in allying himself closely with any party. he considered the tories to be not much, if at all, better than the radicals; and he would, i fancy, have discovered that both sides had, in lowell's phrase, an equal facility for extemporising lifelong convictions. upon this, however, i need not dwell. in any case, i think that the dundee defeat was a blessing in disguise; for, had he been elected and found himself enlisted as a supporter of mr. gladstone, his position would have been almost comically inappropriate. a breach would, doubtless, have followed; and perhaps it would have been an awkward business to manage the transition with delicacy. fitzjames, in fact, discovered at dundee that he was not really a 'liberal' in the sense used in modern politics. his 'liberalism,' as the 'torch' said, meant something radically opposed to the ideas which were becoming dominant with the party technically called by the name. his growing recognition of a fact which, it may perhaps be thought, should have already been sufficiently obvious, greatly influenced his future career. meanwhile, he went back to finish his duties as commissioner at the assizes, and to reflect upon the lessons which, as he said, he had learnt at dundee. he had fresh ideas, he said, as to politics and the proper mode of treating them. he propounded some of his doctrines in a couple of lectures upon 'parliamentary government,' delivered to the edinburgh philosophical society in the following november.[ ] he describes some of the familiar consequences; shows how our administrative system has become an 'aggregate of isolated institutions'; and how the reduction of the royal power to a cipher has led to the substitution of a set of ministers, each a little king in his own department, and shifted backwards and forwards in obedience to popular sentiment. one result is the subordination to party purposes of important interests not essentially connected with them. at the present moment, he says, a disaster on the west coast of africa would affect the prospects of popular education. that is as rational as it would be to change your lawyer because you have had to discharge your cook. fitzjames, however, was under no illusions. he fully admits that parliamentary government is inevitable, and that foreign systems are in some respects worse, and, in any case, incapable of being introduced. he confines himself to suggesting that some departments of administration and legislation might be withdrawn from the influence of our party system. iv. codification in england fitzjames had returned to act again as commissioner at wells. there he had to listen to a vehement sermon from archdeacon denison, in favour of auricular confession, and glancing, as his hearer fancied, at a certain article in the 'pall mall gazette.' he had afterwards a pleasant chat with freeman, 'not a bad fellow at all,' though obviously a 'terrible pedant.' he hears from coleridge, who has finally decided against accepting the mastership of the rolls, and hopes that fitzjames may still be his colleague. the old chief baron is still charming, and says ('though i don't believe it') that he never knew what mental fatigue meant, and that when he was solicitor-general he was never in bed for more than two or three hours for four or five nights a week ('which, again, i do not believe'). however, it is undeniable that he can still do his work as well as many younger men. the chance of the solicitor-generalship was soon extinguished. coleridge was friendly, but explained that political considerations might prevent any attention being paid to his personal wishes. in september, in fact, sir henry james was appointed to the vacant post and the hope finally disappeared. there was still, however, a possibility of a seat on the bench, which would please him still better. he feels that his proper place is out of parliament. he could exercise more influence 'than all the solicitor-generals in the world' by simply devoting himself to writing, and he is full of plans for books. but he would like to be a judge for the sake both of the money and the work. 'the administration of justice is really the best thing which is going on in the nation.' on january , , however, he announces that his little 'bubble about the judgeship, which looked a very bright bubble indeed, has gone where all bubbles go.' twenty people had congratulated him upon his appointment and three judges had written to recommend clerks. last night he had heard decisively that he was not to have it. coleridge, too, had become lord chief justice and the government business had gone elsewhere. well, he will 'put on some extra work to keep hold of the wolf's ears which he has held so long.' coleridge, i may add, still took an interest in fitzjames's codification schemes, and they even agreed, or rather vaguely proposed, to act the parts of 'moses and aaron,' fitzjames inspiring measures of which coleridge was to take charge in the house of lords. this dream, however, vanished like others. the dissolution of parliament in january, , was followed by a general election. proposals were made to fitzjames to stand at several places; including dundee, where, however, mr. jenkins was elected. for one reason or other he declined the only serious offers, and was 'not sorry.' he could not get over 'his dislike to the whole affair.' he 'loathed elections,' and 'could not stand the idea of parliament.' disraeli soon came into office, and 'the new ministry knew not joseph.' fitzjames had quite got over his disappointment about the judgeship, though he admits that he had at first felt it 'bitterly.' he has not known how to find favour with chancellors or ministers. he therefore resolves to make his own way; he cares more for what he is in himself than for the position he holds; and he reconciles himself 'to the prospect which obviously lies before him,' of obscure hard 'labour for a good many years.' he 'puts away all his fair hopes in his pocket, and resolves to do three things: a good bit of codifying,' whether on his own account or for government; a little book about india; and finally the _magnum opus_ which he had so long meditated, which he thought that he ought to begin when he was fifty (he was at this time just forty-five), and which might take about fifteen years. the little book about india is afterwards frequently mentioned in his letters under its proposed title, 'the english in india.' it was, i think, to be more or less historical, and to occupy some of the ground covered by sir alfred lyall's 'british dominion in india.' it never took definite shape, but led to the work upon impey, of which i shall have to speak hereafter. meanwhile he is not without some good professional omens. he feels that he will have to 'restrict his circuiteering,' and not to go to most of the towns without special retainers. good work is coming to him in london, though not so frequently as might be wished. the codifying, in fact, took up much of his time. the 'homicide bill' was introduced into parliament this year ( ) by russell gurney, and referred to a select committee. they consulted cockburn, bramwell, and blackburn, who appear to have been on the whole hostile. bramwell, however, declared that the bill was 'excellently drawn,' and in a friendly letter to fitzjames condemned the spirit of hostility in which it had been received by other judges. the main objection put forward by cockburn and accepted by the committee was the objection to a partial measure. the particular question of homicide involved principles applying to other parts of the criminal law; and a partial treatment would only serve to introduce confusion and doubt. the committee accordingly recommended that the bill should be dropped. fitzjames accepted this not as a reason for abandoning the attempt but for extending the scope of the proposed measure. the result will appear presently. the change of government was not altogether unfavourable. early in march he received instructions from lord salisbury, who had succeeded the duke of argyll at the india office, to consolidate the acts relating to the government of india. he set to work with his usual energy, and a statement prefixed to the printed draft of the bill is dated june , . in less than three months he had done a big piece of work. the consolidation of these laws had been in contemplation in england and india for some time. various preparations had been made by government, including a draft of the proposed act by mr. herman merivale, then permanent undersecretary at the india office. fitzjames, however, had to go through the whole, and, as he laments, without such help as he could have commanded from his subordinates in india. he prepared an elaborate schedule showing every unrepealed section of every act relating to india since . the 'kernel of the law' was contained in eight acts; the 'regulating act' of , the acts upon the successive renewal of the company's charter, and the acts passed upon the transference of the company's powers to the crown. as each of these had been superposed upon its predecessors without repealing them, it was necessary to go through them all to discover what parts were still in force; how far any law had been modified by later enactments, and what parts of the law it might be desirable to leave unaltered; and then to fuse the whole into unity. fitzjames proposes to repeal forty-three acts with the exception of certain sections, and to substitute for the repealed portions a single act of sections, shorter, as he remarks, than some of those repealed. the result would be to save a great deal of labour to hard-worked indian officials, who required to know the precise limits of their authority; and the act would form a complete constitutional code, determining the powers and the mutual relations of the whole indian administrative and legislative system. the draft was carefully criticised by the authorities. fitzjames himself went through it again in the following january with maine and sir erskine perry, and it was finally made ready to be laid before parliament. lord salisbury introduced in the following session a preparatory measure which would be incidentally required. this, however, was withdrawn in consequence, it seems, of objections made by the legislative council in india, and the whole code went to the usual limbo. i do not know what was the precise nature of the objection, but probably it was thought that the new law might stir up questions which it was better to leave in repose. anyhow, nothing came of it. 'you have done your work and got your fee, and what more do you want?' observed a cynical friend. to which fitzjames could only reply, ruefully enough, 'true, o king.' this task interrupted another upon which he had been engaged, and which he took up again as soon as it was finished. he writes upon july , , that his prospects have improved, and that he has therefore 'turned his mind to his books in real earnest.' they are a 'large family' and rather crowd upon him. however, his first enterprise will be 'a codification of the english law of contracts, founded upon the indian act, but larger and more elaborate in every way.' if the country takes to codifying (the dream had not yet vanished), this might become his profession. anyhow, he will be able to give his mind to what he really cares for. he had been already hard at work upon his 'contract book' in the winter before he was instructed to prepare the acts for the government of india. this task, i may observe, had led him to study some of the german jurists. he had perfected his german with the help of a master in the summer of his return, and was now able to read the language comfortably. he expresses at first sight anything but acquiescence in german claims to philosophical pre-eminence, but after a time he comes to understand the respect which austin professed for savigny. his study of the law of contracts was apparently broken off by a renewed call to take up once more the criminal law. of this i shall have to speak presently. the reference just quoted to improved prospects is to be explained by an influx of parliamentary business which took place at this time. he was leading counsel in the session of for the london, chatham and dover railway company, and appeared for them in several cases. the impression which he made upon professional observers has been reported to me by more than one competent witness. it is such as may be foreseen. 'you are bringing your steam hammer to crack a nut again,' was the remark made to one of them by a friend. admiration for his 'close reasoning, weighty argument, and high tone of mind,' is cordially expressed. he never threw a word away, always got to the core of a question, and drove his points well home. and yet he did not seem to be in the field best adapted for his peculiar gifts. he was too judicial, too reluctant to put a good face upon a bad cause, not enough of a rhetorician, and not sufficiently alert in changing front, or able to handle topics with the lightness of touch suitable to the peculiar tastes of a parliamentary committee. thus, though he invariably commanded respect, he failed to show the talent necessary for the more profitable, if not more exalted lines of professional success. business still continued to present itself in the most tantalising form; it came in gushes and spurts, falling absolutely dead at one moment and then unexpectedly reviving. he had occasionally successful circuits; but failed to step into the vacant place made by the elevation to the bench of his old tutor, lord field, in , and gradually went his rounds less regularly. meanwhile a good deal of business of a different kind presented itself. at the end of , i find him mentioning that he had eleven cases before the judicial committee of the privy council. he appeared in a good many colonial and indian appeals, and afterwards, as i shall have occasion to notice, in certain ecclesiastical cases. i do not think, however, that i need dwell upon this part of his career. one remark must be made. fitzjames was still doomed to be an illustration of the curious disproportion which may exist between a man's intrinsic power and his fitness for professional success. still, as at college, he was distanced in the race by men greatly his inferiors in general force of mind, but better provided with the talent for bringing their gifts to market. such a position was trying, for it was inevitable that he should be himself more conscious of his abilities than of his limitations. his incapacity for acquiring the dexterities by which men accommodate themselves to their neighbours' wants implied a tendency rather to under-estimate the worth, whatever it may be, of such dexterities. the obstacle to his success was just the want of appreciation of certain finer shades of conduct, and therefore remained unintelligible to himself. he was like a painter of very keen and yet narrowly limited vision, who could not see the qualities which lead people to prefer the work of a long-sighted man. yet he not only never lost heart, but, so far as i can discover, was never for a moment querulous or soured. he was never for an instant in danger of becoming a 'man with a grievance.' he thought, of course, that his views were insufficiently appreciated; but he complained, not of individuals, but of general causes which were practically irremovable, and against which it was idle to fret. if, in writing to his closest friends, he indulges in a momentary grumble over the 'bursting of a bubble,' he always adds that he is ashamed of himself for the feeling, and emphatically declares himself to be one of the happiest and most fortunate of men. when, therefore, i report his various disappointments, i must be understood to imply that they never lowered his courage even in the most trifling degree, or threw over his course more than such passing fits of shadow as even the strongest man must sometimes traverse. nobody could have been cheerier, more resolute, or more convinced that his lines had fallen in pleasant places. v. the metaphysical society here i shall notice some of the employments in which he found distraction from the various worries of his career. in the first place, he had a boundless appetite for books. when he returned from india he rubbed up his old classical knowledge; and, though he had far too much sense to despise the help of 'cribs,' he soon found himself able to get on pretty well without them. he mentions a number of authors, homer, for example, and Ã�schylus, who supplied a motto for 'liberty, equality, fraternity '; he reads demosthenes, partly with a view to greek law; dips into plato and aristotle, and is intensely interested by cicero's 'de natura deorum.' he declares, as i have said, that he cared little for literature in itself; and it is no doubt true that he was generally more interested in the information to be got from books than in the mode of conveying it. this, however, increases his appetite for congenial works. he admires gibbon enthusiastically; he has read the 'decline and fall' four or five times, and is always wishing to read it again. he can imagine no happier lot than to be able to devote oneself to the completion of such a book. he found it hard, indeed, to think of a novel or a poem as anything but a trifling though fascinating amusement. he makes an unfavourable criticism upon a novel written by a friend, but adds that it is 'not really unfavourable.' 'a great novel,' he explains, 'a really lasting work of art, requires the whole time and strength of the writer, ... and x. is too much of a man to go in for that.' after quoting milton's 'lycidas' and 'christmas hymn,' which he always greatly admired, he adds that he is 'thankful that he is not a poet. to see all important things through a magnifying glass of strange brilliant colours, and to have all manner of tunes continually playing in one's head, and i suppose in one's heart too, would make one very wretched.' a good commonplace intellect satisfied with the homely food of law and 'greedily fond of pastry in the form of novels and the like, is--well, it is at all events, thoroughly self-satisfied, which i suppose no real poet or artist ever was.' besides, genius generally implies sensitive nerves, and is unfavourable to a good circulation and a thorough digestion. these remarks are of course partly playful, but they represent a real feeling. a similar vein of reflection appears to have suggested a comment upon las casas' account of napoleon at st. helena. it is 'mortifying' to think that napoleon was only his own age when sent to st. helena. 'it is a base feeling, i suppose, but i cannot help feeling that to have had such gifts and played such a part in life would be a blessing and a delight greater than any other i can think of. i suppose the ardent wish to be stronger than other people, and to have one's own will as against them, is the deepest and most general of human desires. if it were a wish which fulfilled itself, how very strong and how very triumphant i should be;--but it does not.' for this atrocious wish, i must add, he apologises amply in a later letter. it is merely a passing velleity. in truth it represents his version of carlyle's doctrine about the superiority of silence to speech, or rather of the active to the contemplative life. the career of a great conqueror, a great legislator, a man who in any capacity has moulded the doctrines of the race, had a charm for his imagination which he could not find in the pleasant idlers, who beguile our leisure by singing songs and telling stories. men who affect the religions of mankind belong rather to the active than the contemplative class. nobody could estimate more highly the importance of philosophical speculations upon the great problems of life. to write a book which should effectively present his own answer to those problems was his permanent ambition. even in going to india, he said, he had been moved partly by the desire of qualifying himself by fresh experience for such a work, which had been consciously before him ever since he left college. he was never able to carry out the plan which was very frequently in his thoughts. certain articles, however, written about this time, sufficiently indicate his general conclusions, and i therefore shall here give some account of them. they were all more or less connected with that curious body called the 'metaphysical society.' a description of this institution was given in the 'nineteenth century' for august by mr. r. h. hutton, who represents the discussions by an imaginary conversation between the chief debaters. mr. knowles prefixed a brief historical account. the society was founded in consequence of a conversation between tennyson and mr. knowles, and held its first meeting on april , . fitzjames joined it after his return from india. the scheme of the founders was to provide an arena in which the most important religious problems should be discussed with the same freedom with which other problems are, or ought to be discussed in the learned and scientific societies. perhaps some light might be thrown upon the question whether we have immortal souls, in which tennyson was much interested. many very distinguished men became members, and after a friendly dinner discussed papers which had been circulated for consideration. cardinal manning, w. g. ward, and father dalgairns were the chief representatives of catholicism; professors huxley, tyndall, and w. k. clifford of a scientific agnosticism; mr. frederic harrison of positivism; and dr. martineau, mr. ruskin, mr. r. h. hutton, of various shades of rational theology. there were others, such as mark pattison and professor henry sidgwick, whom i should shrink from putting into any definite class. mr. gladstone, lord selborne, and fitzjames may perhaps be described as intelligent amateurs, who, though occupied with more practical matters, were keenly interested in philosophical speculations. these names are enough to show that there was no lack of debating talent. fitzjames took the liveliest interest in these discussions, to which at various times he contributed papers upon 'necessary truths,' 'mysteries,' the 'proof of miracles,' the 'effect upon morality of a decline in religious faith,' and the 'utility of truth.' he enjoyed some vigorous encounters with various opponents: and according to mr. hutton his 'mighty bass' exercised 'a sort of physical authority' over his hearers. the meetings were of course strictly private; and reports of the debates, had reports been possible, would have been a breach of confidence. yet as the society has excited a certain interest, i will venture to record part of my impressions. i was not a member of the society in its early, and, as i take it, most flourishing days; and i only once, for example, heard a few words from w. g. ward, who was then one of the more conspicuous interlocutors. but i had the honour of membership at a later period, and formed a certain estimate of the performances. i remarked, in the first place, what was not strange, that nobody's preconceived opinions were changed, nor even, so far as i know, in the smallest degree affected by the discussions. nor were they calculated to affect any serious opinions. had any young gentleman been present who had sat at the feet of t. h. green or of professor sidgwick, and gained a first class at either university, he would, as i always felt, have remarked that the debaters did not know what they were talking about. so far as the discussions were properly metaphysical, the remark would have been more than plausible. with certain conspicuous exceptions, which i shall not specify, it was abundantly clear that the talk was the talk of amateurs, not of specialists. i do not speak from conjecture when i say, for example, that certain eminent members of the society had obviously never passed that 'asses' bridge' of english metaphysics, the writings of bishop berkeley, and considered his form of idealism, when it was mentioned, to be a novel and startling paradox. it was, i fancy, a small minority that had ever really looked into kant; and hegel was a name standing for an unknown region wrapped in hopeless mist. this would be enough to disenchant any young gentleman fresh from his compendiums of philosophy. persons, he would think, in so hopeless a state of ignorance could no more discuss metaphysics to any purpose than men who had never heard of the teaching of newton or darwin could discuss astronomy or biology. it was, in fact, one result of the very varying stages of education of these eminent gentlemen that the discussions became very ambiguous. some of the commonest of technical terms convey such different meanings in different periods of philosophy that people who use them at random are easily set at hopelessly cross-purposes.... 'object' and 'subject,' 'intuition,' 'experience,' and so forth, as used by one set of thinkers, are to others like words in an unknown language which they yet do not know to be unknown. if metaphysics were really a separate and independent science upon which experts alone had a right to speak, this remark would be a sufficient criticism of the society. it called itself metaphysical, and four out of five of its members knew nothing of metaphysics. a defence, however, might be fairly set up. some of the questions discussed were independent of purely metaphysical inquiries. and it may be denied, as i should certainly deny, that experts in metaphysics have any superiority to amateurs comparable to that which exists in the established sciences. recent philosophers have probably dispersed some fallacies and cleared the general issues; but they are still virtually discussing the old problems. to read plato, for example, is to wonder almost equally at his entanglement in puerile fallacies and at his marvellous perception of the nature of the ultimate and still involved problems. if we could call up locke or descartes from the dead in their old state of mind, we might still be instructed by their conversation, though they had never heard of the later developments of thought. and, for a similar reason, there was a real interest in the discussion of great questions by political, or legal, or literary luminaries, who had seen men and cities and mixed in real affairs and studied life elsewhere than in books, even though as specialists they might be probably ignorant. the difference was rather, perhaps, a difference of dialect than of substance. their weapons were old-fashioned; but the main lines of attack and defence were the same. another criticism, however, was obvious, and is, i think, sufficiently indicated in mr. hutton's imaginary conversation. the so-called discussions were necessarily in the main a series of assertions. each disputant simply translated the admitted facts into his own language. the argument came to saying, i say ditto to hume, or to comte, or to thomas aquinas. after a brief encounter, one man declared that he believed in god, and his opponent replied, i don't. it was impossible really to get further. it was not a difference between two advocates agreed upon first principles and disputing only some minor corollary, but a manifestation of different modes of thought, and of diverging conceptions of the world and of life, which had become thoroughly imbedded in the very texture of the speaker's mind. when it is a question of principles, which have been the battle-ground of generations; when every argument that can be used has been worked out by the subtlest thinkers of all times, a dispute can really come to nothing but saying, i am of this or that turn of mind. the real discussion of such questions is carried on by a dialectical process which lasts through many generations, and is but little affected by any particular champion. thus the general effect necessarily was as of men each securely intrenched in his own fastness, and, though they might make sallies for a little engagement in the open, each could retreat to a position of impregnable security, which could be assaulted only by long siege operations of secular duration. it was, i fancy, a gradual perception of these difficulties which led to the decay of the society. meanwhile there were many pleasant meetings, and, if the discussions came to be little more than a mutual exhibition to each other of the various persons concerned, i hope and believe that each tended to the conviction that his antagonist had neither horns nor hoofs. the discussions, moreover, produced a considerable crop of magazine articles; and helped to spread the impression that certain very important problems were being debated, upon the decision of which immense practical consequences might depend. it might be curious to inquire how far the real interest in these arguments extended, and whether the real state of the popular mind is a vivid interest in the war between scientific theories and traditional beliefs, or may more fitly be described as a languid amusement in outworn problems. fitzjames, at any rate, who always rejoiced, like cromwell's pikemen, when he heard the approach of battle, thought, as his letters show, that the forces were gathering on both sides and that a deadly struggle was approaching. the hostility between the antagonists was as keen as it had been in the sixteenth and seventeenth centuries, though covered for the present by decent pretences of mutual toleration. he contributed during this period a paper upon newman's 'grammar of assent' to 'fraser's magazine'; and he wrote several articles, partly the product of the metaphysical society, in the 'contemporary review' and the 'nineteenth century,' both under the editorship of mr. knowles. i shall speak of them so far as they illustrate what was, i think, his definite state of mind upon the matters involved. his chief encounters were with cardinal manning ('contemporary review,' march and may ), and with w. g. ward ('contemporary review,' december ), and with mr. gladstone ('nineteenth century,' april ). the controversy with mr. gladstone turned upon certain points raised in sir g. c. lewis's book upon 'authority in matters of opinion.' the combatants were so polite, and their ultimate difference, which was serious enough, was so mixed up with discussions of lewis's meaning, that a consideration of the argument would be superfluous. the articles directed against manning, to which his antagonist replied in succeeding numbers of the review, were of more interest. the essence of fitzjames's argument was a revival of his old challenge to newman. he took occasion of a pamphlet by manning to ask once more the very pertinent question: you claim to represent an infallible and supernatural authority which has indefeasible rights to my allegiance; upon what grounds, then, is your claim based? to establish it, you have first to prove that we have such a knowledge of god as will enable us to draw special inferences as to particular institutions; next, that christ was an incarnation of that god; then, that christ founded a particular institution; and, finally, that the institution was identical with the catholic church. the argument covers a very wide ground; and i think that fitzjames never wrote with more concentrated vigour. i have a certain difficulty in speaking of manning's reply; because it has apparently come to be understood that we are bound to pay insincere compliments to a good man's understanding when he disagrees with our views. now i am quite willing to admit that manning was a most amiable and well-meaning person; but i am unable to consider him seriously as a reasoner. the spectacle which he presented on this occasion, at least, was that of a fluent popular preacher, clutched by a powerful logician, and put into a witness-box to be thoroughly cross-examined. the one quality i can discover in his articles is a certain dexterity in evading plain issues and covering inconsistencies by cheap rhetoric. the best suggestion to be made on his side would be that he was so weak an advocate that he could not do justice to the argument. the controversy with w. g. ward was of different character. ward, with his usual courtesy to intellectual antagonists, had corresponded with fitzjames, in whose writings he was much interested. he now challenged his opponent to republish a paper upon 'necessary truths,' which had been read to the metaphysical society. fitzjames accordingly reproduced it with a comment, and ward replied in the next number. ward was undoubtedly a man of much dialectical ability, and, i think, in some directions more familiar than his opponent with metaphysical subtleties. fitzjames considered himself to have had the best of the argument, and says that the 'tablet' admitted his superiority. i presume, however, that ward would have returned the opposite verdict. i am the less inclined to pronounce any opinion because i believe that most competent people would now regard the whole discussion as turning upon a false issue. in fact, it was the old question, so eagerly debated by j. s. mill and ward, as to the existence of intuitions and 'necessary truths.' neither mill's empiricism nor ward's belief in intuitions 'in the sense required' would, i fancy, be now regarded as satisfactory. i think that fitzjames was greatly superior in vigour of expression; but the argument is not one to be answered by a single yes or no. i cannot even touch such controversies here. my only desire is to indicate fitzjames's intellectual attitude. it is sufficiently manifest in these articles. he argues that ward's position is really suicidal. certain things are pronounced by ward to be impossible even for omnipotence--as, for example, to make a trilateral figure which shall not be also triangular. carry out this view, says fitzjames, and you make our conceptions the measure of reality. mysteries, therefore, become nonsense, and miracles an impossibility. in fact, ward's logic would lead to spinoza, not to the deity of catholic belief. ward might retort that fitzjames's doctrines would lead to absolute scepticism or atheism. fitzjames, in fact, still accepts mill's philosophy in the fullest sense. all truth, he declares, may be reduced to the type, 'this piece of paper is blue, and that is white.' in other words, it is purely empirical and contingent. the so-called intuitive truths 'two and two make four' only differ from the truth, 'this paper is white' in that they are confirmed by wider experience. all metaphysical verbiage, says fitzjames, whether coleridge's or ward's, is an attempt to convert ignorance into superior kind of knowledge, by 'shaking up hard words in a bag.' since all our knowledge is relative to our faculties, it is all liable to error. all our words for other than material objects are metaphors, liable to be misunderstood--a proposition which he confirms from horne tooke's nominalism. all our knowledge, again, supposes memory which is fallible. all our anticipations assume the 'uniformity of nature,' which cannot be proved. and, finally, all our anticipations also neglect the possibility that new forces of which we know nothing may come into play. such convictions generally imply agnosticism as almost a necessary consequence. they might seem to show that what i have called the utilitarian element in his thoughts had effectually sapped the base of the puritanic element. i certainly think that this was to some extent the case. fitzjames had given up the belief that the gospel narrative could be proved after the paley method, and that was the only method which, according to him, was legitimate. he had, therefore, ceased to believe in the historical truth of christianity. after going to india he did not take part in church services, and he would not, i am sure, have used such language about his personal convictions as he used in all sincerity at the time of the 'essays and reviews' controversy. in short, he had come to admit that no belief in a supernatural revelation could be maintained in the face of modern criticism. he often read renan with great interest; renan, indeed, seemed to him to be sentimental, and too favourable to the view that a religion might have a certain artistic value independent of its truth. but he was as far as renan or as the most thorough-going of historical critics from believing in the divinity of christ or the truth of the christian inspiration. but, in spite of this, he still held to his version of the doctrine of probability. it is summed up in pascal's famous _il faut parier_. we can neither put aside the great religious questions nor give a positive answer to them. we must act on the hypothesis that one answer or the other is true; but we must not allow any juggling to transmute a judgment of probability into an undoubting conviction of truth. there are real arguments on both sides, and we must not ignore the existence of either. in the attack upon manning he indicates his reasons for believing in a god. he accepts the argument from final causes, which is, of course, the only argument open to a thorough empiricist, and holds that it is not invalidated, though it is, perhaps, modified by recent scientific inquiries. it is probable, therefore, that there is a god, though we cannot regard the point as proved in such a sense as to afford any basis for expecting or not expecting a revelation. on the contrary, all analogy shows that in theological, as in all other matters, the race has to feel its way gradually to truth through innumerable errors. in writing to a friend about the manning article he explains himself more fully. such articles, he says, give a disproportionate importance to the negative side of his views. his positive opinions, if 'vague, are at least very deep.' he cannot believe that he is a machine; he believes that the soul must survive the body; that this implies the existence of god; that those two beliefs make 'the whole difference between the life of a man and the life of a beast.' the various religions, including christianity, try to express these beliefs, and so long as they are honestly and simply believed are all good in various degrees. but when the creeds are held on the ground of their beauty or utility, not on the ground of their demonstrable truth, they become 'the most corrupt and poisonous objects in the world, eating away all force, and truth, and honour so far as their influence extends.' to propose such beliefs on any ground but the ground of truth, 'is like keeping a corpse above ground because it was the dearest and most beloved of all objects when it was alive.' he does not object to authority as such. he has no objection to follow a doctor's directions or to be loyal to an official superior, and would equally honour and obey anyone whom he could trust in religious questions. but he has never found such a guide. 'a guide is all very well if he knows the way, but if he does not, he is the most fatal piece of luggage in the world.' to use his favourite language, therefore, he still regarded a 'sanction' as absolutely necessary to the efficacy of moral or religious teaching. his constant criticism upon positivists and agnostics is that their creeds afford no satisfactory sanction. they cannot give to the bad man a reason for being good. but he was equally opposed to sham sanctions and sham claims to authority. as a matter of fact, his attack upon such claims led most people to classify him with the agnostics. nor was this without reason. he differed less in reality, i think, from professor huxley or mr. harrison than from ward or cardinal manning. in the arguments at the 'metaphysical society' he was on the left wing as against both catholics and the more or less liberal theologians, whose reasoning seemed to him hopelessly flimsy. his first principles in philosophy were those of the agnostics, and in discussing such principles he necessarily took their part. he once told mr. harrison that he did not wish to have any more controversies with him, because dog should not fight dog. he sympathised as heartily as any man could do in the general spirit of rationalism and the desire that every belief should be the outcome of the fullest and freest discussions possible. every attempt to erect a supernatural authority roused his uncompromising antagonism. so long as people agreed with him upon that point, they were at one upon the main issue. his feeling was apparently that expressed in the old phrase that he would go with them as far as hounslow though he did not feel bound to go to windsor. writing a few months later to the same correspondent, he observes that the difference between them is partly a difference of character. circumstances have developed in him a 'harsh and combative way of thinking and writing in these matters.' yet he had felt at times that it required so much 'effort of will to face dreary and unpleasant conclusions' that he could hardly keep his mind in the direction, or what he thought the direction, of truth without much pain. he could happily turn to neutral subjects, and had (i rather doubt the accuracy of the phrase) 'a peculiarly placid turn of mind.' he admits that a desire for knowledge is right and inevitable, but all experience shows our fallibility and the narrow limits of our knowledge. we know, however, that 'we are bound together by innumerable ties, and that almost every act of our lives deeply affects our friends' happiness.' the belief again (in the sense always of belief of a probability) in the fundamental doctrines of god and a future state imposes an 'obligation to be virtuous, that is, to live so as to promote the happiness of the whole body of which i am a member. is there,' he asks, 'anything illogical or inconsistent in this view?' at any rate, it explains his 'moral indignation' against roman catholicism. in the first place, catholicism claims 'miraculous knowledge' where there should be an honest confession of ignorance. this original vice has made it 'to the last degree dishonest, unjust, and cruel to all real knowledge.' it has been the enemy of government on rational principles, of physical science, of progress in morals, of all knowledge which tends to expose its fundamental fallacies. its theological dogmas are not only silly but immoral. the doctrines of hell, purgatory, and so forth, are not 'mysteries,' but perfectly unintelligible nonsense, first representing god as cruel and arbitrary, and then trying to evade the consequence by qualifications which make the whole 'a clumsy piece of patchwork.' god the father becomes a 'stern tyrant,' and god the son a 'passionate philanthropist.' practically his experience has confirmed this sentiment. he does 'really and truly love, at all events, a large section of mankind, though pride and a love of saying sharp things have made me, i am sorry to say, sometimes write as if i did not,' and whatever he has tried to do, he has found the roman catholic church 'lying straight across his path.' men who are intellectually his inferiors and morally 'nothing at all extraordinary,' have ordered him to take for granted their views upon law, morals, and philosophy, and when he challenges their claim can only answer that he is wicked for asking questions. he fully admits the beauty of some of the types of character fostered by the roman catholic church, although they imply a false view of certain cardinal points of morality, and argues that to some temperaments they may have a legitimate charm. but that does not diminish the strength of his convictions that the dogmas are radically absurd and immoral, or that the whole claim to authority is opposed to all rational progress. in the manning articles he ends by accepting the issue as between the secular view and the claims of a priesthood to authority. in the last resort it is a question whether state or church shall rule. he prefers the state, because it has more rational aims, uses more appropriate means, has abler rulers, produces verifiable results, and has generally 'less nonsense about it.' the clergy are 'male old maids'; often very clever, charitable, and of good intentions, but totally devoid of real wisdom or force of mind or character, and capable on occasions of any amount of spite, falsehood, and 'gentle cruelty.' it is impossible to accept the claims of the priesthood to supernatural authority. if ultimately a division has to be made, human reason will have to decide in what shape the legal sanction, 'or, in other words, disciplined and systematic physical force,' shall be used. we shall then come to the _ultima ratio_, after all compromises have been tried. there may be an inevitable conflict. the permanent principles of nature and society, which are beyond all laws, will decide the issue. but manning's is a mere quack remedy. this represents one aspect of fitzjames's character. the struggle which is going on is a struggle between priest and layman, mysticism and common sense, claims to supernatural authority and clear downright reasoning from experience, and upon all grounds of theory and practice he is unequivocally on the side of reason. i need only add a remark or two. in the first place, i think that he never materially altered this position, but he was rather less inclined after a time to take up the cudgels. he never lost a conviction of the importance of his 'sanction.' he always held to the necessity of some kind of religious belief, although the precise dogma to be maintained became rather more shadowy. but, as the discussion went on, he saw that in practice his own standing-ground was becoming weaker. the tendency of men who were philosophically on his own side was to regard the whole doctrine of a future life as not only beyond proof but beyond all legitimate speculation. hence he felt the force of the dilemma to which he was exposed. a genuine religion, as he says in a remarkable letter, must be founded, like all knowledge, on facts. now the religions which include a theology rest on no facts which can stand criticism. they are, therefore, doomed to disappear. but the religions which exclude theology--he mentions buddhism and positivism as examples--give no adequate sanction. hence, if theology goes, the moral tone of mankind will be lowered. we shall become fiercer, more brutal, more sensual. this, he admits, is a painful and even a revolting conclusion, and he therefore does not care to enlarge upon it. he is in the position of maintaining that a certain creed is at once necessary to the higher interests of mankind, and incapable of being established, and he leaves the matter there. i may just add, that fitzjames cared very little for what may be called the scientific argument. he was indifferent to darwinism and to theories of evolution. they might be of historical interest, but did not affect the main argument. the facts are here; how they came to be here is altogether a minor question. oddly enough, i find him expressing this opinion before the 'origin of species' had brought the question to the front. reviewing general jacob's 'progress of being' in the 'saturday review 'of may , , he remarks that the argument from development is totally irrelevant. 'what difference can it make,' he asks, 'whether millions of years ago our ancestors were semi-rational baboons?' this, i may add, is also the old-fashioned empirical view. mill, six years later, speaks of darwin's speculations, then familiar enough, with equal indifference. in this, as in other important matters, fitzjames substantially adhered to his old views. to many of us on both sides theories of evolution in one form or other seem to mark the greatest advance of modern thought, or its most lamentable divergence from the true line. to fitzjames such theories seemed to be simply unimportant or irrelevant to the great questions. darwin was to his mind an ingenious person spending immense labour upon the habits of worms, or in speculating upon what may have happened millions of years ago. what does it matter? here we are--face to face with the same facts. fitzjames, in fact, agreed, though i fancy unconsciously, with comte, who condemned such speculations as 'otiose.' to know what the world was a billion years ago matters no more than to know what there is on the other side of the moon, or whether there is oxygen in the remotest of the fixed stars. he looked with indifference, therefore, upon the application of such theories to ethical or political problems. the indication is, i think, worth giving; but i shall say nothing as to my own estimate of the importance of the theories thus disregarded. vi. the criminal code i return to the sphere upon which fitzjames spent his main energies, and in which, as i think, he did his most lasting work. three months of the spring of had been spent in consolidating the laws relating to the government of india. about the same time, i may observe parenthetically, he had a scheme for publishing his speeches in the legislative council; and, at one period, hoped that maine's might be included in the volume. the publishers, however, declined to try this experiment upon the strength of the english appetite for indian matters; and the book was dropped. he returned for a time to the contract law; but must soon have given up the plan. he writes on september , , that macmillan has applied to him for a new edition of his 'criminal law'; and that he has been reading for some time with a view to it. he has been labouring through , royal vo. pages of 'russell on crimes.' they are full of irrelevant illustrations; and the arrangement is 'enough to make one go crazy.' the 'plea of _autrefois acquit_ comes at the end of a chapter upon burglary'--a fact to make even the ignorant shudder! he would like to put into his book a penal code, a code of criminal procedure, and an evidence code. 'i could do it too if it were not too much trouble, and if a large part of the law were not too foolish to be codified.' he is, however, so convinced of the impracticability of parliamentary help or of a commission that he is much inclined to try. a fortnight later (october ) he has resolved to convert his second edition into a draft penal code and code of criminal procedure. the work grew upon his hands.[ ] he found crudities in the earlier work and a difficulty in stating the actual law from the absence of any adequate or tolerably arranged text-book. hence he resolved to make such a book for himself, and to this task he devoted nearly all of what he humorously called his leisure during the later part of and the whole of and . moreover, he thought for a time that it would be desirable to add full historical notes in order to explain various facts of the law. these, however, were ultimately set aside and formed materials for his later history. thus the book ultimately took the form simply of a 'digest of the criminal law,' with an explanatory introduction and notes upon the history of some of the legal doctrines involved. it was published in the spring of ,[ ] and, as he says in a letter, it represented the hardest work he had ever done. it coincided in part with still another hard piece of work. in december he was appointed professor of common law at the inns of court. he chose for the subject of his first course of lectures the law of evidence. his indian code and the bill introduced by coleridge in had made him thoroughly familiar with the minutiæ of the subject. here again he was encountered by the same difficulty in a more palpable shape. a lecturer naturally wishes to refer his hearers to a text-book. but the only books to which he could refer his hearers filled thousands of pages, and referred to many thousands of cases. the knowledge obtained from such books and from continual practice in court may ultimately lead a barrister to acquire comprehensive principles, or at least an instinctive appreciation of their application in particular cases. but to refer a student to such sources of information would be a mockery. he wants a general plan of a district, and you turn him loose in the forest to learn its paths by himself. fitzjames accordingly set to work to supply the want by himself framing a 'digest' of the english law of evidence. here was another case of 'boiling down,' with the difficulty that he has to expound a law--and often an irrational law--instead of making such a law as seems to him expedient. he undoubtedly boiled his materials down to a small size. the 'digest' in a fourth edition contains articles filling moderate pages, followed by a modest apparatus of notes. i believe that it has been found practically useful, and an eminent judge has told me that he always keeps it by him. fitzjames held his office of professor until he became a judge in . he had certainly one primary virtue in the position. he invariably began his lecture while the clock was striking four and ceased while it was striking five. he finally took leave of his pupils in an impressive address when they presented him with a mass of violets and an ornamental card from the students of each inn, with a kindly letter by which he was unaffectedly gratified. his class certainly had the advantage of listening to a teacher who had the closest practical familiarity with the working of the law, who had laboured long and energetically to extract the general principles embedded in a vast mass of precedents and technical formulas, and who was eminently qualified to lay them down in the language of plain common sense, without needless subtlety or affectation of antiquarian knowledge. i can fully believe in the truth of sir c. p. ilbert's remark that whatever the value of the codes in other respects, their educational value must be considerable. they may convince students that law is not a mere trackless jungle of arbitrary rules to be picked up in detail, but that there is really somewhere to be discovered a foundation of reason and common sense. it was one of fitzjames's favourite topics that the law was capable of being thus exhibited; and that fifty years hence it would be a commonplace that it would be treated in a corresponding spirit, and made a beautiful and instructive branch of science. the publication of these two books marked a rise in his general reputation. in the introduction to the 'digest of the criminal law' he refers to the rejection of his 'homicide bill.' the objections then assigned were equivalent to a challenge to show the possibility of codifying. he had resolved to show the possibility by actually codifying 'as a private enterprise.' the book must therefore be regarded as 'an appeal to the public at large' against the judgment passed upon his undertaking by parliament and by many eminent lawyers. he does not make the appeal 'in a complaining spirit.' the subject, he thinks, 'loses nothing by delay,' and he hopes that he has improved in this book upon the definitions laid down in his previous attempts. in connection with this i may mention an article which he contributed to the 'nineteenth century' for september upon a scheme for 'improving the law by private enterprise.' he suggests the formation of a council of 'legal literature,' to co-operate with the councils for law-reporting and for legal education. he sketches various schemes, some of which have been since taken up, for improving the law and legal knowledge. digests of various departments of the law might be of great service as preparing the way for codification and illustrating defects in the existing state of the law. he also suggests the utility of a translation of the year-books, the first sources of the legal antiquary; a continuation of the state trials, and an authentic collection of the various laws of the british empire. sir c. p. ilbert has lately drawn attention to the importance of the last; and the new state trials are in course of publication. the selden society has undertaken some of the antiquarian researches suggested. meanwhile his codification schemes were receiving a fresh impulse. when preparing the 'digest,' he reflected that it might be converted into a penal code. he communicated this view to the lord chancellor (cairns) and to sir john holker (afterwards lord justice holker), then attorney-general. he rejoiced for once in securing at last one real convert. sir john holker, he says, appreciated the scheme with 'extraordinary quickness.' on august , , he writes that he has just received instructions from the lord chancellor to draw bills for a penal code, to which he was soon afterwards directed to add a code of criminal procedure. he set to work, and traversed once more the familiar ground. the 'digest,' indeed, only required to be recast to be converted into a code. the measure was ready in june and was introduced into parliament by sir john holker in the session of . it was received favourably, and he reports that the chancellor and the solicitor-general, as well as the attorney-general, have become 'enthusiastic' in their approbation. the house of commons could not spare from more exciting occupations the time necessary for its discussion. a commission, however, was appointed, consisting of lord blackburn, mr. justice barry, lord justice lush, and himself to go into the subject. the commission sat from november to may , and signed a report, written by fitzjames, on june , . they met daily for over five months, discussed 'every line and nearly every word of every section,' carefully examined all the authorities and tested elaborately the completeness of the code. the discussions, i gather, were not so harmonious as those in the indian council, and his letters show that they sometimes tried his temper. the ultimate bill, however, did not differ widely from the draft produced by fitzjames, and he was glad, he says,[ ] that these thorough discussions brought to light no serious defect in the 'digest' upon which both draft-codes were founded. the report was too late for any action to be taken in the session of . cockburn wrote some observations, to which fitzjames (now a judge) replied in the 'nineteenth century' of january . he was studiously courteous to his critic, with whom he had some agreeable intercourse when they went the next circuit together. i do not know whether the fate of the measure was affected by cockburn's opinion. in any case the change of ministry in put an end to the prospects of the code for the time. in , to finish the story, the part relating to procedure was announced as a government measure in the queen's speech. that, however, was its last sign of life. the measure vanished in the general vortex which swallows up such things, and with it vanished any hopes which fitzjames might still entertain of actually codifying a part of english law. vii. ecclesiastical cases fitzjames's professional practice continued to be rather spasmodic; important cases occurring at intervals, but no steady flow of profitable work setting in. he was, however, sufficiently prosperous to be able to retire altogether from journalism. the 'pall mall gazette' during his absence had naturally got into different grooves; he had ceased to sympathise with some of its political views; and as he had not time to throw himself so heartily into the work, he could no longer exercise the old influence. a few articles in and were his last contributions to the paper. he felt the unsatisfactory nature of the employment. he calculates soon afterwards that his collected works would fill some fifty volumes of the size of 'liberty, equality, fraternity,' and he is anxious to apply his energy to less ephemeral tasks. his profession and his codes gave him work enough. his most remarkable professional employment arose out of certain ecclesiastical cases. sir francis jeune, who was concerned in some of them, has kindly described his impressions to me. fitzjames's connection with certain prosecutions directed against the ritualists arose from a conversation between sir f. jeune, who was then junior counsel to the english church union, and its secretary the late sir charles young. a counsel was required who should unite 'plenty of courage' to an intimate knowledge of the criminal law and power of appreciating the results of historical research. fitzjames 'combined these requirements in a wonderful way.' sir f. jeune makes reservations similar to those which i have had to notice in other applications, as to fitzjames's want of the subtlety and closeness of reasoning characteristic of the greatest lawyers. he saw things 'rather broadly,' and his literary habits tended to distract him from the precise legal point. 'i always thought of his mind,' says sir francis, 'as of a very powerful telescope pulled out just a little too much.' the sharp definitions, perceptible sometimes to inferior minds, were in his a little blurred. these peculiarities, however, were even advantages in this special class of business. the precedents and principles involved were rather vague, and much of the work within the province rather of the historian than of the lawyer. it involved questions as to the spirit in which the articles and rubrics had been composed by their authors. the requirement of 'courage' was amply satisfied. 'i shall never forget,' says sir francis, 'one occasion' in which fitzjames was urged to take a course which he thought improper, though it was not unnaturally desired by irritated clients fighting against what they considered to be harsh legal restraint. fitzjames at once made it clear that no client should make him deviate from the path of professional propriety. he had, in fact, indignantly refused, as i find from one of his letters, to adopt a position which implied distrust of the impartiality of the judges. of the cases themselves i must say generally that they often provoked a grim smile from the advocate. when, in earlier days, he had defended dr. williams he had spoken not merely as an advocate, but as a man who had felt that he was vindicating the intellectual liberty of the church of which he was a member. the cases in which he was now concerned could appeal to him only as an advocate. the first in which he appeared, february , , was sufficiently grotesque.[ ] a clergyman had refused to administer the sacrament to a gentleman who had published a volume of 'selections' from the bible--implying, it was suggested, that he did not approve of the part not selected--and who had his doubts about the devil. the clergyman was reported to have said, 'let him sit down and write a calm letter, and say he believes in the devil, and i will give him the sacrament.' the only legitimate causes in a legal sense for refusing the sacrament would be that a man was an 'open and notorious evil liver,' or a 'common and notorious depraver of the book of common prayer.' the court of arches apparently held that the gentleman came under this description; but the judicial committee of the privy council, after hearing fitzjames, decided that he did not. a man might disbelieve in the devil, without being a 'notorious evil liver,' however irrational may be his scepticism. the most important of his appearances was in the folkestone case.[ ] his 'opening argument, and even more his reply' (upon the appeal), 'were masterpieces, and they obtained from the privy council a judgment in very marked contrast to those which had preceded it.' his argument, as sir f. jeune thinks, induced the privy council to some extent 'to retrace, or at least seem to retrace, its steps.' the judgment sanctioned what is known as the 'eastern position,' and certain other ritualistic practices. in another case,[ ] it was decided, in accordance with fitzjames's argument, that a sculptured representation of the crucifixion, as opposed to the exhibition of a crucifix, was lawful. fitzjames, in his letters at this time, gives his own view pretty emphatically. while you, he says to lord lytton, (i shall speak of this correspondence directly) 'are fighting with famine in india, i am struggling over albs and chasubles, and superstitions not more reasonable than those about vishnu and shiva.' 'i have been passionately labouring for the last nine days' (he says a little later in regard to the folkestone case) 'for the liberty of the clergy to dress themselves in certain garments and stand in particular attitudes. all my powers of mind and body were devoted to these important objects, till i dreamed of chasubles and wafers.' some years ago, he remarks, certain natives of india, having an interest in an appeal to the privy council, caught an idiot and slew him on a hill-top as a sacrifice to the deity who presides over the deliberations of that body. a being capable of being propitiated in that fashion might take an interest in squabbles over wafers and chasubles. 'it is a foolish subject to joke about,' he adds, 'for beyond all manner of doubt my clients' real object is to get as much idolatry as possible into the poor old church of england, and i believe that they will sooner or later succeed in making the whole thing look absurd and breaking it up.' whether that would be a good thing or not is a matter upon which he feels unable to make up his mind. amid these various occupations, fitzjames, however fully occupied, showed no symptoms of being over-worked or over-worried. he had, in a remarkable degree, the power of taking up and dismissing from his mind the matters in each of which he was alternately absorbed. he could throw himself into codifying, or speculating, or getting up briefs at any moment and in any surroundings, and dismiss each occupation with equal readiness. he found time, too, for a good deal of such society as he loved. he heartily enjoyed little holiday tours, going occasionally to the continent, and more frequently to some of the friends to whom he always adhered and to whom he could pour out his opinions frankly and fully. maine was almost his next-door neighbour, and frequently consulted him upon indian matters. he took his sunday walks with carlyle; and he went to stay with froude, in whose society he especially delighted, in a summer residence in devonshire. he frequently visited his old friend venables in wales, and occasionally spent a few days with members of his own family. although ready to take up a bit of work, literary or professional, at any moment, he never appeared to be preoccupied; and could discourse with the utmost interest upon his favourite topics, though he sometimes calls himself 'unsociable'--by which he apparently means that he cared as little as might be for the unsociable kind of recreation. he was a member of the 'cosmopolitan'; he belonged also to 'the club' and to the 'literary society,' and he heartily enjoyed meeting distinguished contemporaries. in he paid a visit to his friends the stracheys, who had taken for the summer a house at anaverna, near ravensdale, co. louth, in ireland. he liked it so much that he resolved to become their successor. he took the house accordingly, and there spent his holidays in the summer of and the succeeding years so long as his strength lasted. anaverna is a village about five miles of dundalk, at the foot of a range of grassy hills rising to a height of some , feet, within a well-wooded country below. the house stood in grounds of about sixty acres, including a wood and traversed by a mountain-stream. fitzjames enjoyed walks over the hills, and, in the last years, drives in the lower country. to this place, and the quiet life there, fitzjames and his family became most warmly attached. his letters abound in enthusiastic remarks about the scenery, and describe his pleasure in the intercourse with neighbours of all classes, and in the visits of old friends who came to stay with him. a good deal of his later writing was done there. viii. correspondence with lord lytton i have now to speak of a new friendship which played a very important part in his life from this time. in january , lord lytton[ ] was appointed governor-general of india. in february, fitzjames dined in his company at lord arthur russell's. they went afterwards to the 'cosmopolitan,' and by the end of the evening had formed a close friendship, which was only to end with their lives. some of fitzjames's friends were surprised at the singular strength of attachment between two men so conspicuously different in mind and character. some contrasts, as everyone observes, rather facilitate than impede friendship; but in this case the opposition might seem to be too decided. the explanation is not, i think, difficult. lord lytton, in the first place, was a singularly charming person. he was not only a delightful companion, but he was delightful because obviously open-hearted, enthusiastic, and exceedingly affectionate. to such charms fitzjames was no more obdurate than his fellows. lord lytton, it is true, was essentially a man of letters; he was a poet and a writer of facile and brilliant prose; and fitzjames acknowledged, or rather claimed, a comparative insensibility to excellence of that kind. upon some faults, often combined with a literary temperament, he was perhaps inclined to be rather too severe. he could feel nothing but hearty contempt for a man who lapped himself in æsthetic indulgences, and boasted of luxurious indifference to the great problems of the day. such an excess of sensibility, again, as makes a man nervously unwilling to reveal his real thoughts, or to take part in a frank discussion of principles, would be an obstacle to intimacy. fitzjames might not improbably decline to take the trouble necessary to soothe the vanity, or thaw the shyness of such a person, and might perhaps too hastily set him down for a coward or a 'poor creature.' but when, as was often the case, the sensitive person was encouraged to openness by fitzjames's downright ways, the implied compliment would be fully recognised. lord lytton, as an accomplished man of the world, was of course free from any awkward bashfulness; and at the very first interview was ready to meet fitzjames half-way. his enthusiasm accordingly met with a rapid return. one of fitzjames's favourite assertions was that nobody but a humbug could deny the pleasantness of flattery; and, in fact, i think that we all like it till we discover it to be flattery. what he really meant was that he liked downright, open-hearted and perfectly sincere praise; and both parties to this alliance could praise each other both sincerely and heartily. there was, however, another reason which helps to explain the great value which fitzjames attached from the first to this intercourse. it comes out in almost every letter in his part of their correspondence. fitzjames calls himself 'self-contained'; and the epithet is quite appropriate if it is taken as not implying any connotation of real selfishness. he was, that is, sufficient for himself; he was contented so long as he could feel, as he always had a right to feel, that he was doing his work thoroughly to the very best of his abilities. he could dispense with much appreciation from outside, though it was unaffectedly welcome when it came from competent persons. he had too much self-reliance to be dependent upon any endorsement by others. but, though this might be perfectly true, he was at bottom sensitive enough, and it was also true that he felt keenly certain consequences of his position. his professional career, as i have so often said, had been a series of tantalising half-successes; he was always being baffled by cross winds at the harbour-mouth. although his courage never failed for an instant, he could not but have a certain sense of isolation or want of support. this was especially true of the codification schemes which occupied so much of his thought. he had been crying in the market-place and no man heeded him. yet his voice was powerful enough morally as well as physically. he had the warmest of friends. some of them were devoted to pursuits which had nothing to do with law and could only express a vague general sympathy. they admired his general vigour, but were not specially interested in the ends to which it was applied. others, on the contrary, were politicians and lawyers who could have given him effectual help. but they almost unanimously refused to take his plans seriously. the british barrister and member of parliament looked upon codification as at best a harmless fancy. 'a jurist,' fitzjames sometimes remarks in a joke, which was not all joking, is a 'fool who cannot get briefs.' that represents the view generally taken of his own energy. it was possibly admirable, certainly unobjectionable, but not to the purpose. the statesman saw little chance of gaining votes by offers of a code, and the successful lawyer was too much immersed in his briefs to care about investigating general principles of law. at last, as i have said, fitzjames got a disciple or two in high places, but even then his most telling argument seems to have been less that codification was good in itself than that success in passing a code would be a feather in the government cap. up to he had not even got so far. russell gurney, indeed, had helped him, and coleridge had shown an interest in his work; but the general answer to his appeals was even more provoking than opposition; it was the reply of stolid indifference. in india his hands had been free. there he had really done a genuine and big stroke of work. the contrast to english methods, and the failure of his attempts to drive his ideas into the heads of any capable allies, had strengthened his antipathy to the home system, though it had not discouraged him from work. but now at last he had made a real and enthusiastic convert; and that convert a governor-general, who would be able to become an effective agent in applying his ideas. the longing for real sympathy, scarcely perhaps admitted even to himself, had been always in existence, and its full gratification stimulated his new friendship to a rapid growth. lord lytton left for india on march , . before he left, fitzjames had already written for him an elaborate exposition of the indian administrative system, which lytton compared to a 'policeman's bull's-eye.' it lighted up the mysteries of indian administration. fitzjames writes to him on the day of his departure: 'you have no conception of the pleasure which a man like me feels in meeting with one who really appreciates and is willing to make use of the knowledge which he has gained with great labour and much thought. i have had compliments of all sorts till i have become almost sick of them, but you have paid me the one compliment which goes straight to my heart--the compliment of caring to hear what i have to say and seeing the point of it.' 'you have managed,' he afterwards says, 'to draw me out of my shell as no one else ever did.' three years later he still dwells upon the same point. you, he says (january , ) 'are the only prominent public man who ever understood my way of looking at things, or thought it in the least worth understanding.' 'others have taken me for a clever fellow with dangerous views.' 'you have not only understood me, but, in your warm-hearted, affectionate way, exaggerated beyond all measure the value of my sayings and doings. you have not, however, exaggerated in the least my regard for you, and my desire to be of service to you.' these words give the key-note of the correspondence, and may help to explain the rapid growth and singular strength of the friendship between two men whose personal intercourse had been limited to less than a month. fitzjames threatened, and the 'threat' was fully executed, to become a voluminous correspondent. i cannot say, indeed, which correspondent wrote most frankly and abundantly. the letter from which i have quoted the last passage is in answer to one from lord lytton, filling thirty sheets, written, as he says, 'in a hurry,' but, as fitzjames declares, with 'only two slips of the pen, without an "erasure," in a handwriting which fills me with helpless admiration,' and in a style which cannot be equalled by any journalist in england. 'and this you do by way of amusing yourself while you are governing an empire in war-time,' and yet compliment me for writing at leisure moments during my vacations! fitzjames, however, does his best to keep pace with his correspondent. some of his letters run to fourteen and fifteen sheets; and he snatches intervals from worrying labours on his codes, or on the bench or on commissions, or sitting up at nights, to pour out discourses which, though he wrote very fast, must often have taken a couple of hours to set down. the correspondence was often very confidential. some of lytton's letters had to be kept under lock and key or put in the fire for safer guardianship. lytton had a private press at which some of his correspondent's letters were printed, and fitzjames warns him against the wiles of editors of newspapers in a land where subordinates are not inaccessible to corruption. it would, however, not be in my power, even if i had the will, to reveal any secrets of state. fitzjames's letters indeed (i have not seen lord lytton's), so far as they are devoted to politics, deal mainly with general considerations. it would be idle to go far into these matters now. it is indeed sad to turn over letters, glowing with strong convictions as well as warm affection and showing the keenest interest in the affairs of the time, and to feel how completely they belong to the past. some of the questions discussed might no doubt become interesting again at any moment; but for the present they belong to the empire of dryasdust. historians will have to form judgments of the merits of lord lytton's policy in regard to afghanistan; but i cannot assume that my readers will be hankering for information as to the special views taken at the time by a man who was, after all, a spectator at some distance. i therefore give fair warning to historical inquirers that they will get no help from me. when the earlier letters were written the afghan troubles had not become acute. fitzjames deals with a variety of matters, some of which, as he of course recognises, lie beyond his special competence. he writes at considerable length, for example, upon the depreciation of the rupee, though he does not profess to be an economist. he gives his views as to the right principles not only of civil, but of military organisation; and discusses with great interest the introduction of natives into the civil service. 'in the proper solution of that question,' he says, 'lies the fate of the empire.' our great danger is the introduction of a 'hidebound' and mechanical administrative system worked by third-rate europeans and denationalised natives. it is therefore eminently desirable to find means of employing natives of a superior class, though the precise means must be decided by men of greater special experience. he writes much, again, upon the famine in madras, in regard to which he had many communications with his brother-in-law, cunningham, then advocate-general of the presidency. he was strongly impressed by the vast importance of wise precautions against the future occurrence of such calamities. naturally, however, he dilates most fully upon questions of codification, and upon this head his letters tend to expand into small state-papers. soon after lord lytton's departure there was some talk of fitzjames's resuming his old place upon the retirement of lord hobhouse, by whom he had been succeeded. it went so far that maine asked him to state his views for the information of lord salisbury. fitzjames felt all his old eagerness. 'the prospect,' he says, 'of helping you and john strachey to govern an empire,' and to carry out schemes which will leave a permanent mark upon history, is 'all but irresistibly attractive.' he knew, indeed, in his heart that it was impossible. he could not again leave his family, the elder of whom were growing beyond childhood, and accept a position which would leave him stranded after another five years. he therefore returned a negative, though he tried for a time to leave just a loophole for acceptance in case the terms of the tenure could be altered. in fact, however, there could be no real possibility of return, and mr. whitley stokes succeeded to the appointment. towards the end of lord lytton's governorship there was again some talk of his going out upon a special mission in regard to the same subject. but this, too, was little more than a dream, though he could not help 'playing with' the thought for a time. meanwhile he corresponded with lord lytton upon various measures. he elaborately annotated the drafts of at least one important bill; he submitted remarks to be laid before the council at lord lytton's request, and finally he wrote an elaborate minute upon codification generally. i need only say that, in accordance with what he had said in his last speeches at calcutta, he held that nearly enough had been done in the way of codifying for india. he insists, too, upon the danger of dealing with certain branches of legislation, where the codification might tend to introduce into india the subtleties and intricacies of some points of english law. part of this correspondence was taking place during the exciting events in afghanistan; and he then observes that after all codification is 'only a luxury,' and must for the present give way to more important matters. fitzjames, of course, followed the development of the government policy in regard to russia and the afghans with extreme interest. he looked with contempt upon the various fluctuations of popular sentiment at the period of the bulgarian atrocities, and during the russian war with turkey; and he expresses very scanty respect for the policy of the english government at that period. he was occasionally tempted to take to his old warfare in the press; but he had resolved to give up anonymous journalism. he felt, too, that such articles would give the impression that they were inspired by the indian government; and he thought it better to reserve himself for occasions on which he could appear openly in his own person. such occasions offered themselves more than once, and he seized them with all his old vigour. a speech made by bright provoked the first noticeable utterance. fitzjames wrote two letters to the 'times,' which appeared december , , and january , , with the heading 'manchester in india.' bright represented the political school which he most detested. according to bright (or fitzjames's version of bright, which was, i dare say, accurate), the british rule in india was the result of 'ambition, conquest, and crime.' we owed, therefore, a heavy debt to the natives; and, instead of paying it, we kept up a cumbrous system of government, which provided for members of the british upper classes, and failed to promote the material welfare of our subjects. the special instance alleged was the want of proper irrigation. to this fitzjames replied in his first letter that we had, in fact, done as much as could be done, and possibly more than was judicious; and he accuses his antagonist of gross ignorance of the facts. his wrath, however, was really aroused by the moral assumptions involved. bright, he thought, represented the view of the commonplace shopkeeper, intensified by the prejudices of the quaker. to him ambition and conquest naturally represented simple crimes. ambition, reports fitzjames, is the incentive to 'all manly virtues'; and conquest an essential factor in the building up of all nations. we should be proud, not ashamed, to be the successors of clive and warren hastings and their like. they and we are joint architects of the bridge by which india has passed from being a land of cruel wars, ghastly superstitions, and wasting plague and famine, to be at least a land of peace, order, and vast possibilities. the supports of the bridge are force and justice. force without justice was the old scourge of india; but justice without force means the pursuit of unattainable ideals. he speaks 'from the fulness of his heart,' and impressed by the greatest sight he had ever seen. fitzjames kept silence for a time, though it was a grief to him, but he broke out again in october , during the first advance into afghanistan. party feeling was running high, and fitzjames had to encounter lord lawrence, lord northbrook, sir w. harcourt, and other able antagonists. he mentions that he wrote his first letter, which fills more than two columns of the 'times,' four times over. i should doubt whether he ever wrote any other such paper twice. the sense of responsibility shown by this excessive care led him also to confine himself to a single issue, upon which he could speak most effectively, out of several that might be raised. he will not trespass upon the ground of military experts, but, upon the grounds of general policy, supports a thesis which goes to the root of the matter. the advance of the russian power in central asia makes it desirable for us to secure a satisfactory frontier. the position of the russians, he urges, is analogous to our own position in india in the days of wellesley. it is idle to denounce them for acting as we acted; but it is clear that the two empires will ultimately become conterminous; and it is, therefore, essential for us that the dividing line should be so drawn as to place us in perfect security. though fitzjames declined to draw any specific moral, his antagonists insisted upon drawing one for him. he must be meaning to insinuate that we were to disregard any rights of the afghans which might conflict with our alleged interests. this point was touched in a letter by lord lawrence, to which fitzjames felt bound to reply. he was reluctant to do so, because he was on terms of personal friendship with lawrence, whose daughter had recently become the wife of henry cunningham. 'i have seldom,' says fitzjames (october , ), 'met a more cheery, vivacious, healthy-minded old hero.' lawrence, he is glad to think, took a fancy to him, and frequently poured himself out abundantly upon indian topics. their friendship, happily, was not interrupted by the controversy, in which fitzjames was scrupulously respectful. this, again, raised the old question about international law, which fitzjames, as a good austinian, regarded mainly as a figment. the moral point, however, is the only one of general interest. are we bound to treat semi-barbarous nations on the same terms as we consider to govern our relations with france or germany? or are we morally entitled to take into account the fact that they are semi-barbarous? fitzjames's view may be briefly defined. he repudiates emphatically the charge of immorality. he does not hold the opinion imputed to him by his antagonists that we may take what territory we please, regardless of the interests of barbarous natives. he repeats his assertion that our rule rests upon justice as well as force. he insists upon the same point, i may add, in his private letters to lytton, and declares that it is even more important to be straightforward and to keep our word sacredly with afghans than with civilised races. he writes very warmly upon the danger of exacting excessive punishment for the murder of cavagnari. we ought to prove to the natives that our rule is superior to theirs, and that we are strong enough to keep our heads and be merciful even in the face of insults. but then, we have to act upon our own conceptions of morality, and must not be hampered by regarding nations as fictitious persons with indisputable rights. when we have to do with semi-savages, we may have to enforce our own views upon them by the strong hand. some one, for example, had maintained that the eighth commandment forbade us to interfere with independent tribes; fitzjames observes (december , ) that they have just the same right to be independent as the algerine pirates to infest the straits of gibraltar. a parcel of thieves and robbers who happen to have got hold of the main highway of the world have not, therefore, a right to hold it against all comers. if we find it necessary to occupy the passes, we shall have to give them a lesson on the eighth commandment. nobody will ever persuade him that any people, excepting 'a few strapping fellows between twenty and forty,' really prefer cruel anarchy and a life of murder and plunder to peace and order. nor will anyone persuade him that englishmen, backed by sikhs and ghoorkas, could not, if necessary, reduce the wild tribes to order, and 'sow the first seeds of civilisation' in the mountains. to some people it may seem that the emphasis is laid too much upon force and too little upon justice. i am only concerned to say that fitzjames's whole theory is based upon the view--sufficiently expounded already--that force, order, and justice require a firm basis of 'coercion'; and that, while we must be strictly just, according to our own views of justice, we must not allow our hands to be tied by hollow fictions about the 'rights' of races really unfit for the exercise of the corresponding duties. on this ground, he holds it to be possible to have an imperial 'policy which shall yet be thoroughly unjingo-like.' upon this i need insist no further. i shall only say that he always regarded the british rule in india as the greatest achievement of the race; that he held it to be the one thoroughly satisfactory bit of work that we were now doing; and, further, that he held lytton to be a worthy representative of our true policy. a letter which strikingly illustrates his enthusiasm was written in prospect of the great durbar at delhi when the queen was proclaimed empress of india (january , ). no man, he thinks (september , ), ever had before or ever will have again so splendid an opportunity for making a great speech and compressing into a few words a statement of the essential spirit of the english rule, satisfactory at once to ourselves and to our subjects. 'i am no poet,' he says, 'as you are, but delhi made my soul burn within me, and i never heard "god save the queen" or saw the union jack flying in the heart of india without feeling the tears in my eyes, which are not much used to tears.' he becomes poetical for once; he applies the lines of 'that feeble poem maud' to the englishmen who are lying beneath the cashmire gate, and fancies that we could say of hastings and clive, and many another old hero, that their hearts must 'start and tremble under our feet, though they have lain for a century dead.' then he turns to his favourite 'christmas hymn,' and shows how, with certain easy emendations, milton's announcement of the universal peace, when the 'kings sate still with awful eye,' might be applied to the _pax britannica_ in india. he afterwards made various suggestions, and even wrote a kind of tentative draft, from which he was pleased to find that lytton accepted some suggestions. a rather quaint suggestion of a similar kind is discussed in a later letter. why should not a 'moral text-book' for indian schools be issued in the queen's name? it might contain striking passages from the bible, the koran, and the vedas about the divine being; with parables and impressive precepts from various sources; and would in time, he thinks, produce an enormous moral effect. in regard to lytton himself, he was never tired of expressing the warmest approbation. he sympathises with him even painfully during the anxious times which followed the murder of cavagnari. he remarks that, what with famine and currency questions and afghan troubles, lytton has had as heavy a burthen to bear as lord canning during the mutiny. he has borne it with extraordinary gallantry and cool judgment, and will have a place beside hastings and wellesley and dalhousie. he will come back with a splendid reputation, both as a statesman and a man of genius, and it will be in his power to occupy a unique position in the political world. fitzjames's letters abound with such assurances, which were fully as sincere as they were cordial. i must also say that he shows his sincerity on occasions by frankly criticising some details of lytton's policy, and by discharging the still more painful duty of mentioning unfavourable rumours as to his friend's conduct as viceroy. the pain is obviously great, and the exultation correspondingly marked, when lytton's frank reply convinces him that the rumours were merely the echo of utterly groundless slander. i will only add that the letters contain, as might be expected, some downright expressions of disapproval of some persons, though never without sufficient reason for speaking his mind; and that, on the other hand, there are equally warm praises of the many friends whom he heartily admired. he can never speak warmly enough of sir john strachey, sir robert egerton, and others, in whom he believed with his usual fervour. fitzjames's belief in his friends and his estimate of their talents and virtues was always of the most cordial. i will quote a few phrases from one of his letters, because they refer to a friendship which i shall elsewhere have no opportunity of mentioning. alfred lyall, he says, 'is one of the finest fellows i ever knew in my life. if you cultivate him a little you will find him a man of more knowledge, more imagination (in the lofty and eminently complimentary sense of the word), more intelligent interest in the wonders of india, than almost anyone else in the country.' 'i talked to him last sunday for nearly two hours incessantly on indian matters and on religion and morals, and left off at last only because i could not walk up and down any longer in common duty to my wife, who was waiting dinner. it will be, as byron says of pope, a sin and a shame and a damnation if you and he don't come together. he is the one man (except maine) i ever met who seemed to me to see the splendour of india, the things which have made me feel what i have so often said to you about it, and which make me willing and eager to do anything on earth to help you.' i have dwelt at length upon these letters, because they seem to me eminently characteristic, and partly also because they explain fitzjames's feelings at the time. he was becoming more and more conscious of his separation from the liberal party. 'why are you,' asked one of his friends, who was a thorough partisan, 'such a devil in politics?' it was because he was becoming more and more convinced that english political life was contemptible; that with some it was like a 'cricket-match'--a mere game played without conviction for the sake of place or honour; that even where there were real convictions, they were such as could be adapted to the petty tastes of the vulgar and commonplace part of society; and that it was pitiable to see a body of six or seven hundred of the ablest men in the country occupied mainly in thwarting each other, making rational legislation impossible, and bowing more and more before the 'sons of zeruiah,' who would be too strong for them in the end. for behind all this was arising a social and religious revolution, the end of which could be foreseen by no one. i dread, he says, the spread of my own opinions. the whole of society seems to be exposed to disintegrating influences. young men have ceased to care for theology at all. he quotes a phrase which he has heard attributed to a very clever and amiable undergraduate whose tutor had spoken to him about going to chapel. if, said the pupil, there be really such a deity as you suppose, it appears to me that to praise him would be impertinent and to pray to him superfluous. what is to happen when such opinions are generally spread, and when the populace discovers that their superiors do not really hold the creeds which they have declared to be essential to society? ix. appointment to a judgeship meanwhile, fitzjames had been receiving various proofs of rising reputation. in january he was made k.c.s.i. he expresses his pleasure at having the name of india thus 'stamped upon him'; and speaks of the very friendly letter in which lord salisbury had announced the honour, and of his gratitude for lord lytton's share in procuring it. the university of oxford gave him the honorary d.c.l. degree in . he was member of a commission upon fugitive slaves in , and of a commission upon extradition in .[ ] he was also a member of the copyright commission appointed in october , which reported in . he agreed with the majority and contributed a digest of the law of copyright. he had occasional reasons to expect an elevation to the bench; but was as often disappointed. upon the death of russell gurney (may , ) there was some talk of his becoming recorder of london; but he did not much regret the speedy disappearance of this prospect, though it had its attractions. he was three times ( , , and ) appointed to act as judge upon circuit. when at last he was entrusted with the preparation of the criminal code in , the attorney-general expressed the opinion that a satisfactory execution of the task would entitle him to a judgeship, but could not give any definite pledge. when, however, in july , it was determined to appoint a commission to prepare a code for parliament, fitzjames said that he would be unable to undertake a laborious duty which would make practice at the bar impossible for the time, without some assurance of a judgeship. the chancellor thereupon wrote a letter, which, though an explicit promise could not be made, virtually amounted to a promise. in accordance with this he was appointed on january , , to a judgeship which had become vacant by the resignation of sir anthony cleasby. a notorious journalist asserted that the promise had been made on consideration of his writing in the papers on behalf of the indian government. the statement is only worth notice as an ingenious inversion of the truth. so far from requiring any external impulse to write on lytton's behalf, fitzjames could hardly refrain from writing when its expediency was doubtful. when the occasion for a word in season offered itself, hardly any threats or promises could have induced him to keep silence. 'judge or no judge,' he observes more than once, 'i shall be forced to write' if certain contingencies present themselves. i give the letter in which he announced his appointment to his sister-in-law (january , ):--'my dearest emily, i write to tell you that i am out of all my troubles. cleasby has unexpectedly resigned, and i am to succeed him. i know how this news will delight you, and i hasten to send it, though i hope to see you to-morrow. it gives me a strange, satisfied, and yet half-pathetic feeling. one great battle is won, and one great object obtained; and now i am free to turn my mind to objects which have long occupied a great part of it, so far as my leisure will allow. i hope i have not been anxious to any unworthy or unmanly extent about the various trials which are now over. 'in such moments as this, one's heart turns to those one loves. dearest emily, may all good attend you, and may i and mine be able to do our shares towards getting you the happiness you so pre-eminently deserve. i don't know what to wish for; but i wish for all that is best and most for your good in the widest sense which the word can have. ever your loving brother, j. f. s.' * * * * * in giving the news to lord lytton, he observes that he feels like a man who has got into a comfortable carriage on a turnpike road after scrambling over pathless mountain ranges. his business since his return has been too irregular and capricious to allow him to feel himself at his ease. that being over, he is resolved to make the bench a 'base of operations' and 'not a mere shelf.' the hint about 'leisure' in the letter to lady egerton will be understood. leisure in his mouth meant an opportunity for doing more than his duties required. he calculated on a previous occasion that, if he were a judge, he should have at his disposal three or, by good management, four working hours at his own disposal. i find him, characteristically enough, observing in an article of about the same date that the puisne judges have quite enough work without imposing any extra labour whatever upon them. but he tacitly assumed that he was to carry a double burthen. how he turned his time to account will appear directly. i need only say here that he unfeignedly enjoyed his new position. he often said that he could imagine nothing more congenial to all his wishes. he observes frequently that the judicial work is the only part of our administrative system which is still in a thoroughly satisfactory state. he felt as one who had got into a safe place of refuge, from which he could look out with pity upon those who were doomed to toil and moil, in an unhealthy atmosphere, as politicians, public officials, and journalists. he could learn to be philosophical even about the fate of his penal code. note ***my nephew, sir herbert stephen, has kindly sent me the enclosed note in regard to my brother's life in ireland. l. s. in my father took for the long vacation a house called dromquina, on the northern bank of the kenmare river, about three miles from kenmare. the 'river' is an arm of the sea, something like forty miles long, and at dromquina, i suppose, not above half a mile wide. he had heard of the place by reason of his friend, mr. froude, living at that time at lord lansdowne's house, derreen, in killmakalogue harbour, about fifteen miles lower down on the opposite shore. in a thickly populated country this would not constitute a near neighbourhood, but we made excursions to derreen, either in a boat or in mr. froude's yacht, several times in the course of the summer. it is in the neighbourhood of the kenmare river and bantry bay that mr. froude laid the scene of 'the two chiefs of dunboy.' dromquina stands close to the water's edge, and we had several boats and the services of some half-dozen fishermen at our command. my father had learnt to row at eton, and during this summer he always took an oar--and did good service with it--upon our frequent excursions on the water. i remember, by the way, that many years later, after he had been for some time a judge, he was one day rowing in a boat with a party of friends on the thames, and was much gratified by my telling him what hard work i had found it, while steering, to keep the boat straight, because he pulled so much harder than the man who was rowing bow, a sturdy athlete, twenty years his junior, but no waterman. he liked the life at dromquina so much that in , after his return from india, he took the bishop of limerick's house, parknasilla, in sneem harbour, just opposite derreen. that year, if i remember right, he took some shooting, to which we had to drive a considerable distance. in one year or the other i went out shooting with him two or three times. i do not think he ever had any shooting later: though, considering how little practice he can have had, he was a decidedly good shot. the country was rough, and the bags, though not heavy in quantity--we were lucky if we saw ten brace of grouse--presented a rather extensive variety of kind. during these two summers my father indulged himself freely in his favourite amusement of taking long walks, but also did a good deal of rowing and sailing. he had had my brothers and me taught to swim in a previous summer at the sea-side, and at dromquina decided that we ought to be able to swim confidently in our clothes. in order to test our possession of this accomplishment, he one day took us out himself in a boat, and told me to sit on the gunwale, after which he artfully engaged me in conversation until he saw that i was not expecting my plunge, when he suddenly shoved me overboard. we all passed the ordeal with credit. in he meditated building a house on the kenmare river, but in the course of that summer he went to visit sir john strachey, who was then living at anaverna house, at ravensdale in county louth. the stracheys left it not long after, and we went there for the first time in . some years later my father took a lease of it, and there he spent every long vacation till inclusive, and the greater part of . for this place my father in particular, as well as his family generally, had from the first a strong affection. the house stands rather high, on the extreme southern slope of the mourne mountains, just within the border of the county of louth and the province of leinster. behind and above the house to the north, the 'mountains' (moors varying in height from , to , feet) stretch for many miles, enclosing the natural harbour known as carlingford lough. southwards there is a view across a comparatively level plain as far as the wicklow mountains, just beyond dublin, and about sixty miles away. the sea is visible at no great distance on the east, and on fine days we could always see the isle of man, about eighty miles to the north-east, from any of several hill-tops within an hour's walk of the house. my father was therefore able to take to his heart's content the long walks that had always been his favourite amusement. he also devoted himself with the greatest enthusiasm to the improvement of the house and grounds. for many years before the stracheys' short tenancy it had been unoccupied, and the grounds--of which there were about seventy acres--were at first very much overgrown, especially with laurels, which, when neglected, grow in that country in almost disgusting luxuriance. my father therefore occupied himself a good deal with amateur forestry, and became, considering that he first turned his attention to the subject at the age of forty-six, a rather expert woodsman. a good deal of tree-felling was necessary, both in the interest of the trees and for the improvement of the views from the house and its immediate neighbourhood. my father had a canadian axe, given to him by frederick gibbs, of which he was extremely fond, and with which he did a great deal of work. he was never reduced to cutting down a tree merely for exercise, but always first satisfied himself with much care that its removal would be an improvement. another point in his wood-cutting that i always admired was that, when the more amusing part of the operation--which is cutting the tree down--was over, he invariably took personally his full share of the comparatively uninteresting work of sawing up the trunk, and disposing in an orderly manner of the branches. he also took great pains to cut his trees as close to the ground as possible, so as not to sacrifice the good timber at the butt, or leave a tall or ragged stump to disfigure the ground afterwards. another labour in which he took much interest was the making of paths through a little wood running up the hill-side behind the house, and the engineering of a stream which descended through it, and, being flooded two or three times every year, required a good deal of management, the more so as the house was supplied by it with water through an artificial streamlet made for the purpose. in these pursuits my father was always assisted by the village post-master, an old man named morton, of picturesque appearance and conversation, and the consultations between the two used to be full of interest. morton spoke with a strong brogue, and combined several other pursuits with that of post-master, the universality of his aptitudes making him an interesting companion, and my father had a great regard for him. he died a few months ago, being then, i believe, over eighty years of age. another out-door amusement that my father enjoyed was shooting at a mark with a snider rifle. the nature of the grounds made it easy to get a safe hundred yards' range within three minutes' walk of the front door, and three or four hundred yards by going a little farther. we practised in this way pretty often, and i think the judge was, on the whole, a better shot than any of his sons. in the year the household was increased, a good deal to my father's annoyance, by two policemen. at the liverpool summer assizes he had tried a gang of dynamiters, i think for treason-felony. they, or most of them, were convicted and sentenced to long terms of penal servitude. some of my father's friends, not understanding that if anybody wanted to murder him it was quite as likely to be done, and quite as easy to do, in england as in ireland, and perhaps entertaining the fantastic idea that the population of louth had more regard for dynamiters than the population of london, suggested to the irish government that he was in some danger. the only thing that could be done was to order police protection, and this sir george trevelyan did. accordingly two constables took up their abode in a room which happened to be available in the stable-yard, and mounted guard all day over the hall-door, following my father wherever he went during the day. though their continued escort troubled him a good deal, there was no escape from it, and he got used to it to some extent. he made great friends with the men personally--like other people, he had the highest admiration for the force to which they belonged--and sometimes challenged them to a shooting match, either with their own rifles or with his, and was much gratified when he got the better of them. with the people generally he became after a time extremely popular. i say after a time, because the inhabitants of that country do not, any more than country people in most parts of england, take strongly to strangers before they know anything about them. they never showed the least disposition to incivility, but for the first year or two my father had not many acquaintances among them. later he came to be well known, and when he was taking his walks in the fields or on the mountains, there was hardly a man for a good many miles round who did not hail him by name. i have known them shout across two fields, 'it's a fine evening, sir james'; and when they did so he invariably stopped and entered into conversation about the crops and the weather, or other topics of universal interest. with some of them whom he had frequently met while walking, or whom he had helped with advice or small loans (about the repayment of which they were, to his great delight, singularly honest), he was on particularly friendly terms, and made a point of visiting them in their houses at least once every year. they have remarkably good manners, and attracted him particularly by their freedom from awkwardness, and their combination of perfect politeness with complete self-respect. i have reason to know that they have not forgotten him. he once made a short expedition with one of my sisters to achill, clifden, and galway. they stayed two nights at achill, which sufficed for him to make friends with mr. sheridan, the landlord of the inn there. they never met again, but there were communications between them afterwards which showed that my father retained as long as he lived a kindly recollection of the people he had met in that particular holiday. it was naturally during the summer holidays, and when one of us used to go circuit as his marshal, that my brothers and i saw most of him. i think that during the years of his judgeship i came to know all his opinions, and share most of them. one result of his strong memory, and the immense quantity of talking and reading that he had done in his life, was that he was never at a loss for conversation. but to attempt to give an idea of what his intimate talk was like when he conversed at his ease about all manner of men and things is not my business. it was, of course, impossible to live in the house with him without being impressed by his extraordinary industry. the mere bulk of the literary work he did at anaverna would make it a surprising product of fifteen long vacations, and there was not a page of it which had not involved an amount of arduous labour which most men would regard as the antithesis of holiday-making. this, however, as the present biography will have shown, was his normal habit, and these notes are designed to indicate that it did not prevent him from enjoying, when away from books and pens and ink, a happy and vigorous life. footnotes: [footnote : the first volume of his _civilization in europe_ appeared in .] [footnote : mill elaborately argues that the social sciences are possible precisely because the properties of the society are simply the sum of the properties of the individuals of which it is composed. his view of the importance of this theory is given in his _autobiography_ (first edition), p. . and see especially his _logic_, bk. vi. chap. vii.] [footnote : _liberty, equality, fraternity_, p. . (my references are to the second edition.)] [footnote : p. .] [footnote : p. . this is almost literally from bentham, who gives several similar classifications of 'sanctions.'] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : pp. , .] [footnote : p. .] [footnote : pp. , .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. . the quotation is not quite accurate.] [footnote : pp. - .] [footnote : p. .] [footnote : p. . in the first edition the 'ignorant preacher' was a 'wretched little curate.' a rougher but more graphic phrase.] [footnote : there is here a discussion as to the relations between 'justice' and 'utility' upon which fitzjames agreed with mill. i dissent from both, and think that fitzjames would have been more consistent had he agreed with me. i cannot, however, here try to unravel a rather knotty point.] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : i repeat that i do not ask whether his interpretation be correct.] [footnote : pp. - .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : p. .] [footnote : bain's _j. s. mill_, p. .] [footnote : _digest of law of evidence_, preface.] [footnote : i have to thank mr. a. h. millar, of dundee, for some papers and recollections referring to this election.] [footnote : they were substantially republished in the _contemporary review_ for december and january .] [footnote : see prefaces to _history of the criminal law_ and to the _digest of the criminal law_.] [footnote : the introduction is dated april .] [footnote : preface to _history of criminal law_.] [footnote : 'jenkins _v._ cook,' _law reports_, probate division, i. - .] [footnote : 'clifton v. ridsdale,' _law reports_, probate division, i. - ; and ii. - .] [footnote : 'hughes v. edwards,' _law reports_, probate division, ii. - .] [footnote : b. november , . d. november , .] [footnote : some account of the reports of these commissions is given in the _history of criminal law_, ii. - , - . the fugitive slave commission was appointed in consequence of a case in which the commander of an english ship in a mohammedan port was summoned to give up a slave who had gone on board. a paper laid before the committee by fitzjames is reprinted in the first passage cited. he thinks that international law prescribes the surrender of the slave; and that we should not try to evade this 'revolting' consequence by a fiction as to the 'exterritoriality' of a ship of war, which might lead to unforeseen and awkward results. we ought to admit that we are deliberately breaking the law, because we hold it to be unjust and desire its amendment. he signs the report of the commission understanding that it sanctions this view.] chapter vi _judicial career_ i. history of criminal law the commission upon the criminal code occupied fitzjames for some time after his appointment to a judgeship. his first appearance in his new capacity was in april at the central criminal court, where he had held his first brief, and had made his first appearance after returning from india. he had to pass sentence of death upon an atrocious scoundrel convicted of matricide. a few months later he describes what was then a judge's business in chambers. it consists principally, he says, in making a number of small orders, especially in regard to debtors against whom judgment has been given. 'it is rather dismal, and shows one a great deal of the very seamy side of life.... you cannot imagine how small are the matters often dealt with, nor how important they often are to the parties. in this dingy little room, and under the most undignified circumstances, i have continually to make orders which affect all manner of interests, and which it is very hard to set right if i go wrong. it is the very oddest side of one's business. i am not quite sure whether i like it or not. at any rate it is the very antithesis of "pomp and 'umbug."' [illustration: _from a photograph by bassano, _ london. published by smith elder & co . waterloo place.] the last phrase alludes to a conversation overheard at the assizes between two workmen. one of them described the judge, the late lord chief justice cockburn, as a 'cheery swine' who, as he affirmed, had gone to church and preached a sermon an hour and a half long. the sheriff, too, was there in a red coat, and had no doubt got his place by interest. 'pomp and 'umbug i calls it, and we poor chaps pays for it all.' fitzjames heartily enjoyed good vernacular embodiments of popular imagination. he admitted that he was not quite insensible to the pleasures of pomp and humbug as represented by javelin men and trumpeters. his work, as my quotation indicates, included some duties that were trivial and some that were repulsive. in spite of all, however, he thoroughly enjoyed his position. he felt that he was discharging an important function, and was conscious of discharging it efficiently. there are few greater pleasures, certainly few were greater to him, than the exercise of a craft which one has so mastered as to have lost all the embarrassment of a beginner. he felt that he was not only up to his duties but had superfluous energy to direct elsewhere. the pleasantest hours of the day were those before and after business hours, when he could devote himself to his literary plans. in some of his letters to lord lytton about the time of his appointment, i find unusual confessions of weariness. he admits that there is a difference between forty and fifty; and thinks he has not quite the old elasticity. i believe, however, that this refers to the worry caused by his work on the commission, and the daily wrangle over the precise wording of the code, while the judgeship was not yet a certainty. at any rate there is no more mention of such feelings after a time; and in the course of the summer he was once more taking up an important literary scheme which would have tasked the energies of the youngest and strongest. he seems to have contemplated for a time a series of books which should cover almost the whole field of english law and be a modern substitute for blackstone. the only part of this actually executed--but that part was no trifle--was another book upon the english criminal law. it was, in truth, as he ventured to say, 'a remarkable achievement for a busy man to have written at spare moments.' we must, of course, take into account his long previous familiarity with the law. the germ of the book is to be found in the essay of ; and in one way or other, as a writer, a barrister, a codifier, and a judge, he had ever since had the subject in his mind. it involved, however, along with much that was merely recapitulation of familiar topics, a great amount of laborious investigation of new materials. he mentions towards the end of the time that he has been working at it for eight hours a day during his holiday in ireland. the whole was finished in the autumn of , and it was published in the following spring. fitzjames explains in his preface how the book had come to be written. he had, as i have said, laid aside the new edition of the original 'view' in order to compile the 'digest,' which he had felt to be its necessary complement. i may add that he also wrote with the help of his eldest son--now sir herbert stephen--a 'digest of the law of criminal procedure,' which was published contemporaneously with the 'history.' the 'digest' had led to the code and to the commission. when the commission was over, he returned to the proposed new edition of the 'view.' but fitzjames seems to have had an odd incapacity for producing a new edition. we, who call ourselves authors by profession, are sometimes tempted, and we do not always resist the temptation, to describe a book as 'revised and corrected' when, in point of fact, we have added a note or two and struck out half a dozen obvious misprints. when fitzjames said that his earlier treatise might be described as 'in some sense a first edition' of the later, he meant that he had written an entirely new book upon a different aspect of the old subject. the 'view' is in one volume of about pages, nearly a third of which ( pages) consists of reports of typical french and english trials. these are reprinted in the 'history.' of the remainder, over pages are devoted to the law of evidence, which is not discussed in the 'history.' consequently the first pages of the 'view' correspond to the whole of the three volumes of the 'history,' which, omitting the reported trials given in both books, contain , pages. that is, the book has swelled to six times the original size, and i do not think that a single sentence of the original remains. with what propriety this can be called a 'new edition' i will not try to decide. the cause of this complete transformation of the book is significant. fitzjames, in his preface, observes that much has been said of the 'historical method' of late years. it has, he agrees, 'thrown great light upon the laws and institutions of remote antiquity.' less, however, has been done for modern times; although what is called 'constitutional history' has been 'investigated with admirable skill and profound learning.' as i have noticed, his original adherence to the theories of bentham and austin had tended to make him comparatively indifferent to the principles accepted and illustrated by the writings of maine. he had looked at first with some doubts upon those performances and the brilliant generalisations of 'ancient law' and its successors. he quotes somewhere a phrase of his friend bowen, who had said that he read maine's works with the profoundest admiration for the genius of the author, but with just a faint suspicion somewhere in the background of his mind that the results might turn out to be all nonsense. fitzjames had at any rate no prepossessions in favour of the method, and may be said to have been recruited, almost in spite of himself, by the historical school. but it was impossible for anyone to discuss the peculiarities of english criminal law without also being plunged into historical investigations. at every point the system is determined by the circumstances of its growth; and you can no more account for its oddities or its merits without considering its history than you can explain the structure of a bat or a seal without going back to previous forms of life. the growth of the criminal law, as fitzjames remarks, is closely connected with the development of the moral sentiments of the community: with all the great political and social revolutions and with the changes of the ecclesiastical constitution and the religious beliefs of the nation. he was accordingly drawn into writing a history which may be regarded as complementary to the great constitutional histories of hallam and dr. stubbs. he takes for granted many of their results, and frankly acknowledges all his obligations. but he had also to go through many investigations of his own special topics, and produced a history which, if i am not mistaken, is of the highest interest as bringing out certain correlative processes in the legal development of our institutions, which constitutional historians naturally left in the background. his early work upon the similar book suggested by his father had made him more or less familiar with some of the original sources. he now had to plunge into various legal antiquities, and to study, for example, the six folio volumes called _rotuli parliamentorum_; to delve in year-books and old reports and the crabbed treatises of ancient lawyers, and to consider the precise meaning and effect of perplexed and obsolete statutes. he was not an antiquary by nature, for an antiquary, i take it, is one who loves antiquity for its own sake, and enjoys a minute inquiry almost in proportion to its minuteness. fitzjames's instinct, on the contrary, was to care for things old or new only so far as they had some distinct bearing upon living problems of importance. i could not venture to pronounce upon the value of his researches; but i am happily able to give the opinion of professor maitland, who can speak as one having authority. 'about the excellence of your brother's history of english criminal law,' he writes to me, 'there can, i suppose, be but one opinion among those who are competent to speak of such a matter. but i think that he is scarcely likely to get all the credit that is due to him for certain parts of the work which are especially interesting to me, and which i have often read--i mean those parts which deal with the middle ages. they seem to me full of work which is both good and new. i take it that he had no great love for the middle ages, and wrote the chapters of which i am speaking as a disagreeable task. i do not think that he had from nature any great power of transferring himself or his readers into a remote age, or of thinking the thoughts of a time very different from that in which he lived: and yet i am struck every time i take up the book with the thoroughness of his work, and the soundness of his judgments. i would not say the same of some of his predecessors, great lawyers though they were, for in dealing with mediæval affairs they showed a wonderful credulity. to me it seems that he has often gone right when they went wrong, and that his estimate of historical evidence was very much sounder than theirs. the amount of uncongenial, if not repulsive labour that he must have performed when he was studying the old law-books is marvellous. he read many things that had not been used, at all events in an intelligent way, for a very long time past; and--so i think, but it is impertinent in me to say it--he almost always got hold of the true story.' to write three thick volumes involving such inquiries within three years and a half; and to do the work so well as to deserve this praise from an accomplished legal antiquary, was by itself an achievement which would have contented the ambition of an average author. but when it is remembered that the time devoted to it filled only the interstices of an occupation which satisfies most appetites for work, and in which he laboured with conscientious industry, i think that the performance may deserve professor maitland's epithet, 'marvellous.' he was greatly interested in the success of the book, though his experience had not led him to anticipate wide popularity. it was well received by competent judges, but a book upon such a topic, even though not strictly a 'law-book,' can hardly be successful in the circulating-library sense of the word. fitzjames, indeed, had done his best to make his work intelligible to the educated outsider. he avoided as much as possible all the technicalities which make the ordinary law-book a hopeless bewilderment to the lay reader, and which he regarded on all grounds with natural antipathy. the book can be read, as one outsider at least can testify, with strong and continuous interest; though undoubtedly the reader must be prepared to endure a little strain upon his attention. there are, indeed, certain drawbacks. in spite of the abundant proofs of industry and knowledge, there are indications that a little more literary polish might have been advantageous. some of the materials are so crabbed that hardly any skill could have divested them of their natural stiffness. as professor maitland's remarks indicate, fitzjames did not love the old period for its own sake. he liked, as i have noticed, general histories, such as gibbon's, which give a bird's-eye view of long periods and, in a sense, codify a great mass of knowledge. but he had not the imaginative power of reconstructing ancient states of society with all their picturesque incidents which was first exemplified by scott. he was always interested in books that reveal human nature, and says in the 'history,' for example, that some of the state trials are to him 'much more impressive than poetry or fiction.'[ ] but the incidents do not present themselves to him, as they did to scott or to macaulay, as a series of vivid pictures with all their material surroundings. he shrank, more advisedly, perhaps, from another tendency which has given popularity to a different school. though he gradually became an admirer of maine's generalisations, founded upon cautious inquiries and recommended by extraordinary literary skill, his own intellectual aptitudes did not prompt him to become a rival. briefly, his attitude of mind was in the strictest sense judicial. he asks always for distinct proofs and definite issues. he applies his canons of evidence to every statement that comes up, and, after examining it as carefully as he can, pronounces his conclusions, unequivocally but cautiously. he will not be tempted to a single step beyond the solid ground of verifiable fact. this undoubtedly gives confidence to the tolerably patient reader, who learns to respect the sobriety and impartiality of his guide. but it also fails to convince the hasty reader that he has seen the event precisely as it happened, or that he is in possession of a philosophical key to open all historical problems. i do not wish for a moment to underrate the value of work which has different qualities; but i do think that fitzjames's merits as a solid inquirer may be overlooked by readers who judge a writer by the brilliance of his pictures and the neatness of his theories. the book covers a very large field. a brief indication of its general plan will show how many topics are more or less treated. he begins with a short account of the roman criminal law; and then of english law before the conquest. he next takes up the history of all the criminal courts, including the criminal jurisdiction of the extraordinary courts, such as parliament and the privy council. this is followed by a history of the procedure adopted in the courts, tracing especially the development of trial by jury. the second volume opens a discussion of certain principles applicable to crime in general, such as the theory of responsibility. next follows a history of the law relating to crime in general. he then takes up the history of the principal classes of crime, considering in separate chapters offences against the state, treason, sedition, and seditious libels; offences against religion, offences against the person (this opens the third volume), especially homicide; offences against property, such as theft and forgery; offences relating to trade and labour and 'miscellaneous offences.' this finishes the history of the law in england, but he adds an account of the extension of the english criminal law to india; and this naturally leads to an exposition of his views upon codification. the exposition is mainly a reproduction of the report of the commission of - , which was chiefly his own composition. finally, the old reports of trials, with a few alterations, are appended by way of pointing the contrast between the english and the french methods, upon which he has already introduced some observations. mr. justice stephen's book, said sir f. pollock in a review of the day, is 'the most extensive and arduous' undertaken by any english lawyer since the days of blackstone. so large a framework necessarily includes many subjects interesting not only to the lawyer but to the antiquary, the historian, and the moralist; and one effect of bringing them together under a new point of view is to show how different branches of inquiry reciprocally illustrate each other. the historian of the previous generation was content to denounce scroggs and jeffreys, or to lament the frequency of capital offences in the eighteenth century, and his moral, especially if he was a whig, was our superiority to our great-grandfathers. there was plenty of room for virtuous indignation. but less attention was generally paid to the really interesting problems, how our ancestors came to adopt and to be content with these institutions; what precisely the institutions were, and how they were connected with other parts of the social framework. when an advance is made towards the solution of such problems, and when we see how closely they connect themselves with other problems, social, ecclesiastical, and industrial, as well as political, we are making also a step towards an intelligent appreciation of the real meaning of history. it is more than a collection of anecdotes, or even, as carlyle put it, than the essence of a multitude of biographies; it becomes a study of the growth of an organic structure; and although fitzjames was reluctant, even to excess, to put forward any claim to be a philosophical historian, a phrase too often applied to a dealer in 'vague generalities,' i think that such work as his was of great service in providing the data for the truly philosophical historian who is always just on the eve of appearing. i venture to touch upon one or two points with the purpose of suggesting in how many ways the history becomes involved in topics interesting to various classes of readers, from the antiquary to the student of the development of thought. the history of trial by jury had, of course, been already unravelled by previous historians. fitzjames was able, however, to produce quaint survivals of the old state of things, under which a man's neighbours were assumed to be capable of deciding his guilt or innocence from their own knowledge. there was the gibbet law of halifax, which lasted till the seventeenth century. the jurors might catch a man 'handhabend, backbarend, or confessand,' with stolen goods worth - / _d._ in his possession and cut off his head on a primitive guillotine without troubling the judges. even in there existed (and i presume there still exists) a certain 'liberty of the savoy,' under the shadow of the new courts of justice, which can deal with keepers of disorderly houses after the same fashion.[ ] from this primitive institution fitzjames has to grope his way by scanty records to show how, during the middle ages, the jury ceased to be also witnesses and became judges of fact informed by witnesses. emerging into the period of the tudors and the early stuarts, he comes to trials full of historic interest; to the dramatic scenes in which sir thomas more, and throckmorton, and raleigh played their parts. he has to show how in a period of overpowering excitement, when social organisation was far weaker, and the power of the rulers more dependent upon personal vigour, the government dealt out sharp and short justice, though juries still had to be cajoled or bullied; how the system was influenced by the growth of the star chamber, with a mode of procedure conforming to a different type; and how, when the tyranny of such courts had provoked indignation, they were swept away and left to the jury its still undisputed supremacy. from the time when honest john lilburne wrangled successfully against cromwell's judges, it began to assume a special sanctity in popular belief. then we come to the popish plots and the brutalities of scroggs and jeffreys, when the jury played a leading part, though often perverted by popular or judicial influence, and without any sound theory of evidence. the revolution of swept away the grosser abuses; the administration of justice became decorous and humane; a spirit of fair play showed itself; the laws of evidence were gradually worked out; and, instead of political tragedies, we have a number of picturesque cases throwing the strangest gleams of light into all manner of odd dark social corners. within the last century, finally, the mode of investigating crime has become singularly dignified, impartial, and substantially just. a survey of this long history, bringing out at every step picturesque incidents and curious illustrations of social and political constitutions, lights up also the real merits and defects of the existing system. fitzjames, with much fuller knowledge and longer experience, adheres substantially to his previous opinion. he has not, of course, the old-fashioned worship for the 'palladium of our liberties'; jurors could be 'blind and cruel' under charles ii., and as severe as the severest judge under george iii. they are not more likely to do justice than a single judge. but the supreme advantages of placing the judge in his proper position as mediator and adviser, and of taking the public into confidence as to the perfect impartiality of the proceedings, outweigh all objections. again we have the curious history of the 'benefit of clergy.' before , a man who could read and write might commit murder as often as he pleased, subject to an indefinite chance of imprisonment by the 'ordinary.' at a later period, he could still murder at the cost of having m branded on the brawn of his thumb. but women and men who had married two wives or one widow did not enjoy this remarkable privilege. the rule seems as queer and arbitrary as any of the customs which excite our wonder among primitive tribes. the explanation, of course throws a curious light upon the struggle between church and state in the middle ages; and in the other direction helps to explain the singularities of criminal legislation in the eighteenth century. our grandfathers seem to have thought that felony and misdemeanour were as much natural classes as mammal and marsupial, and that all that they could do was to remove the benefit of clergy when the corresponding class of crime happened to be specially annoying. they managed to work out the strange system of brutality and laxity and technicality in which the impunity of a good many criminals was set off against excessive severity to others. the spiritual courts, again, give strange glimpses into the old ecclesiastical system. the records show that from the time of the conquest to that of the stuarts a system prevailed which was equivalent to the spanish inquisition, except that it did not use torture. it interfered with all manner of moral offences such as that of eleanor dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a perfect of _utinam_) 'se fuisse in inferno quamdiu deus erit in cælo, ut potuisset uncis infernalibus vindicare se de quodam johanne gybbys mortuo.' the wrath provoked by this and more vexatious interferences makes intelligible the sweeping away of the whole system in . with this is connected the long history of religious persecution, from the time when ( ) the clergy forged an act of parliament to give the bishops a freer hand with heretics. strange fragments and shadows of these old systems still remain; and according to fitzjames it would still in strict law be a penal offence to publish renan's 'life of christ.'[ ] the attempt to explain the law as referring to the manner, not the matter, of the attack is, he thinks, sophistical and the law should be simply repealed. a parallel case is that of seditious libels; and there is a very curious history connected with the process by which we have got rid of the simple, old doctrine that all attacks upon our rulers, reasonable or otherwise, were criminal. these are some of many cases in which fitzjames has to give a side of history generally left in comparative obscurity. upon some matters, as, for example, upon the history of impeachments, he thought that he had been able to correct or clear up previous statements. i have only wished to show how many interesting topics come into his plan; and to me, i confess, the most interesting of all is the illustration of the amazing nature of the so-called intellectual process involved. people seem to begin by making the most cumbrous and unreasonable hypotheses possible, and slowly and reluctantly wriggling out of them under actual compulsion. that is not peculiar to lawyers, and may have a meaning even in philosophy. fitzjames's comments upon the actual state of the law brings him to many important ethical problems. the discussion of the conditions of legal responsibility is connected with that of moral responsibility. fitzjames once more insists upon the close connection between morality and law. 'the sentence of the law,' he says, 'is to the moral sentiment of the public what a seal is to hot wax. it converts into a permanent final judgment what might otherwise be a transient sentiment.' the criminal law assumes that 'it is right to hate criminals.' he regards this hatred as a 'healthy natural feeling'; for which he again quotes the authority of butler and bentham. the legal mode of expressing resentment directs it to proper applications in the same way as the law of marriage gives the right direction to the passion of love. from his point of view, as i have already indicated, this represents the necessary complement to the purely utilitarian view, which would make deterrence the sole legitimate end of punishment. the other, though generally consistent, end is the gratification of the passion of moral indignation.[ ] hence arise some difficult questions. fitzjames insists, in agreement with bentham, and especially with james mill, that the criminal law is concerned with 'intentions,' not with 'motives.' all manner of ambiguities result from neglecting this consideration. the question for the lawyer is, did the prisoner mean to kill?--not, what were his motives for killing? the motives may, in a sense, have been good; as, for example, when a persecutor acts from a sincere desire to save souls. but the motive makes no difference to the sufferer. i am burnt equally, whether i am burnt from the best of motives or the worst. a rebel is equally mischievous whether he is at bottom a patriot or an enemy of society. the legislator cannot excuse a man because he was rather misguided than malignant. it is easy to claim good motives for many classes of criminal conduct, and impossible to test the truth of the excuse. we cannot judge motives with certainty. the court can be sure that a man was killed; it can be sure that the killing was not accidental; but it may be impossible to prove that the killer had not really admirable motives. but if so, what becomes of the morality? the morality of an act is of course affected (if not determined) by the motive.[ ] we can secure, no doubt, a general correspondence. crimes, in nine cases out of ten, are also sins. but crimes clearly imply the most varying degrees of immorality: we may loathe the killer as utterly vile, or be half inclined very much to applaud what he has done. the difficulty is properly met, according to fitzjames, by leaving a wide discretion in the hands of the judge. the jury says the law has been broken; the judge must consider the more delicate question of the degree of turpitude implied. yet in some cases, such as that of a patriotic rebel, it is impossible to take this view. it is desirable that a man who attacks the government should attack it at the risk of his life. law and morality, therefore, cannot be brought into perfect coincidence, although the moral influence of law is of primary importance, and in the normal state of things no conflict occurs. there are certain cases in which the difficulty presents itself conspicuously. the most interesting, perhaps, is the case of insanity, which fitzjames treats in one of the most elaborate chapters of his book. it replaces a comparatively brief and crude discussion in the 'view,' and is conspicuously candid as well as lucid. he read a great many medical treatises upon the subject, and accepts many arguments from an opponent who had denounced english judges and lawyers with irritating bitterness. there is no difficulty when the madman is under an illusion. our ancestors seem to have called nobody mad so long as he did not suppose himself to be made of glass or to be the devil. but madness has come to include far more delicate cases. the old lawyers were content to ask whether a prisoner knew what he was doing and whether it was wrong. but we have learnt that a man may be perfectly well aware that he is committing a murder, and know murders to be forbidden in the ten commandments, and yet unable to refrain from murder. he has, say the doctors, homicidal monomania, and it is monstrous to call in the hangman when you ought to be sending for the doctor. the lawyer naturally objects to the introduction of this uncertain element, which may be easily turned to account by 'experts' capable of finding symptoms of all kinds of monomania. fitzjames, however, after an elaborate discussion, decides that the law ought to take account of mental disease which operates by destroying the power of self-control. the jury, he thinks, should be allowed to say either 'guilty,' or 'not guilty on the ground of insanity,' or 'guilty, but his power of self-control was diminished by insanity.'[ ] i need not go into further detail, into a question which seems to be curiously irritating to both sides. i am content to observe that in the earlier book fitzjames had been content with the existing law, and that the change of opinion shows very careful and candid consideration of the question, and, as i think, an advance to more moderate and satisfactory conclusions. the moral view of the question comes out in other relations. he intimates now and then his dissatisfaction with the modern sentimentalism, his belief in the value of capital and other corporal punishments, and his doubt whether the toleration of which he has traced the growth can represent more than a temporary compromise. but these represent mere _obiter dicta_ which, as he admits, are contrary to popular modes of thought. he is at least equally anxious to secure fair play for the accused. he dwells, for example, upon the hardships inflicted upon prisoners by the english system of abstinence from interrogation. the french plan, indeed, leads to cruelty, and our own has the incidental advantage of stimulating to the search of independent evidence. 'it is much pleasanter,' as an indian official remarked to him by way of explaining the practice of extorting confessions in india, 'to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.'[ ] fitzjames, however, frequently remarked that poor and ignorant prisoners, unaccustomed to collect their ideas or to understand the bearing of evidence, are placed at a great disadvantage by never having stated their own cases. the proceedings must pass before them 'like a dream which they cannot grasp,' and their counsel, if they have counsel, can only guess at the most obvious line of defence. he gives instances of injustice inflicted in such cases, and suggests that the prisoners should be made competent witnesses before both the magistrates and the judge. this would often enable an innocent man to clear up the case; and would avoid the evils due to the french system.[ ] without going further into this or other practical suggestions, i will quote his characteristic conclusion. the criminal law, he says, may be regarded as an expression of the second table of the ten commandments. it follows step by step the exposition of our duty to our neighbours in the catechism. there was never more urgent necessity for preaching such a sermon than there is at present. there was never so much doubt as to other sanctions. the religious sanction, in particular, has been 'immensely weakened, and people seem to believe that if they do not happen to like morality, there is no reason why they should be moral.' it is, then, 'specially necessary to those who do care for morality to make its one unquestionable indisputable sanction as clear and strong and emphatic as acts and words can make it. a man may disbelieve in god, heaven, and hell; he may care little for mankind, or society, or for the nation to which he belongs--let him at least be plainly told what are the acts which will stamp him with infamy, hold him up to public execration and bring him to the gallows, the gaol, or the lash.'[ ] that vigorous summary shows the connection between the 'liberty, equality, fraternity,' the various codifying enterprises, and his writings upon theology and ethics. the remarkable point, if i am not mistaken, is that in spite of the strong feeling indicated by the passage just quoted, the tone of the book is throughout that of sound common sense, impartiality, and love of fair play. it is characteristic that in spite of his prejudice against the commonplaces about progress, he does, in fact, show that the history of criminal law is in many most important respects the history of a steady advance in humanity and justice. nor, in spite of a reservation or two against 'sentimentalism,' does he fail to show hearty sympathy with the process of improvement. ii. 'nuncomar and impey' in the summer ( ) which followed the publication of the 'history,' it began to appear that fitzjames's health was not quite so vigorous as it had hitherto been. he could not throw off the effects of a trifling accident in june so rapidly as of old; and in the last months of the year his condition caused for a time some anxiety to his wife. considered by the light of what afterwards happened, these symptoms probably showed that his unremitting labours had inflicted a real though as yet not a severe injury upon his constitution. for the present, however, it was natural to suppose that he was suffering from nothing more than a temporary exhaustion, due, perhaps, to the prolonged wrestle with his great book. rest, it was believed, would fully restore him. he was, indeed, already at work again upon what turned out to be his last considerable literary undertaking. the old project for a series of law-books probably seemed rather appalling to a man just emerging from his recent labours; and those labours had suggested another point to him. the close connection between our political history and our criminal law had shown that a lawyer's technical knowledge might be useful in historical research. he resolved, therefore, to study some of the great trials 'with a lawyer's eye'; and to give accounts of them which might exhibit the importance of this application of special knowledge.[ ] he soon fixed upon the impeachment of warren hastings. this not only possessed great legal and historical interest, but was especially connected with his favourite topics. it would enable him to utter some of his thoughts about india, and to discuss some very interesting points as to the application of morality to politics. he found that the materials were voluminous and intricate. many blue books had been filled by the labours of parliamentary committees upon india; several folio volumes were filled with reports of the impeachment of hastings, and with official papers connected with the same proceeding. a mass of other materials, including a collection of sir elijah impey's papers in the british museum, soon presented themselves. finally, fitzjames resolved to make an experiment by writing a monograph upon 'impey's trial of nuncomar,' which is an episode in the great warren hastings story, compressible within moderate limits. impey, as fitzjames remarks incidentally, had certain claims both upon him and upon macaulay; for he had been a fellow of trinity and had made the first attempt at a code in india. if this first book succeeded fitzjames would take up the larger subject. in the event he never proceeded beyond the preliminary stage. his 'story of nuncomar and the impeachment of sir elijah impey,' published in the spring of , gives the result. fitzjames had been familiar from his boyhood with the famous article upon warren hastings, in which macaulay reached the very culminating point of his surpassing literary skill. it is a skill which, whatever else may be said of it, makes his opponents despair. they may disprove his statements; they can hardly hope to displace his versions of fact from their hold upon popular belief. one secret of macaulay's art is suggested by the account of his delight in 'castle-building.' his vast reading and his portentous memory enabled him to create whole galleries of mental pictures of the past, and his vigorous style embodies his visions with admirable precision and sharpness of outline. but, as those who have followed him in detail became painfully aware, there is more than one deduction to be made from his merits. his imagination undoubtedly worked upon a great mass of knowledge; but the very nature of the imaginative process was to weave all the materials into a picture, and therefore to fill up gaps by conjecture. he often unconsciously makes fancy do the work of logic. 'the real history' (of the famous quarrel between addison and steele), says macaulay, 'we have little doubt, was something like this': and he proceeds to tell a story in minute detail as vividly as if he had been an eye-witness. to him, the clearness of the picture was a sufficient guarantee of its truthfulness. it was only another step to omit the 'doubt' and say simply 'the real history was.' yet all the time the real history according to the best evidence was entirely different. we can never be certain whether one of macaulay's brilliant pictures is--as it sometimes certainly is--a fair representation of a vast quantity of evidence or an audacious inference from a few hints and indications. it represents, in either case, the effect upon his mind; but the effect, if lively enough, is taken to prove itself. he will not condescend to the prosaic consideration of evidence, or to inserting the necessary 'ifs' and 'perhapses' which disturb so painfully the impression of a vivid narrative. when his strong party feelings have coloured his beliefs from the first, his beliefs acquire an intensity which enables them not only to dispense with but to override evidence. i insist upon this because fitzjames's mental excellencies and defects exactly invert macaulay's. his imagination did not clothe the evidence with brilliant colours; and, on the other hand, did not convert conjectures into irresistible illusions. the book upon 'nuncomar and impey' shows the sound judgment of evidence in regard to a particular fact which professor maitland perceives in his treatment of mediæval affairs. it is an exhaustive, passionless, and shrewd inquiry into the facts. he speaks in one of his letters of the pleasure which he has discovered in treating a bit of history 'microscopically'; in getting at the ultimate facts instead of trusting to the superficial summaries of historians. in brief, he is applying to an historical question the methods learnt in the practice of the courts of law. the book is both in form and substance the careful summing up of a judge in a complicated criminal case. the disadvantage, from a literary point of view, is obvious. if we were profoundly interested in a trial for murder, we should also follow with profound interest the summing up of a clear-headed businesslike judge. but, if we did not care two straws whether the man were guilty or innocent, we might find the summing up too long for our patience. that, i fear, may be true in this case. macaulay's great triumph was to create an interest in matters which, in other hands, were repulsively dry. fitzjames could not create such an interest; though his account may be deeply interesting to those who are interested antecedently. he observes himself that his 'book will be read by hardly anyone, while macaulay's paragraph will be read with delighted conviction by several generations.' so long as he is remembered at all, poor impey will stand in a posthumous pillory as a corrupt judge and a judicial murderer.[ ] one reason is, no doubt, that the effect of a pungent paragraph is seldom obliterated by a painstaking exposure of its errors requiring many pages of careful and guarded reasoning. macaulay's narrative could be superseded in popular esteem only by a writer who should condense a more correct but equally dogmatic statement into language as terse and vivid as his own. yet fitzjames's book must be studied by all conscientious historians in future, and will help, it is to be hoped, to spread a knowledge of the fact that macaulay was not possessed of plenary inspiration. it will be enough to give one instance of macaulay's audacity. 'every schoolboy of fourteen' knows by heart his vivid account of the reign of terror produced by impey's exercise of the powers of the supreme court, and of the bribe by which hastings bought him off. a powerful and gloomy picture is drawn in two or three expressive paragraphs. the objection to the story, says fitzjames, 'is that it is absolutely false from end to end, and in almost every particular.'[ ] fitzjames proceeds not only to assert the absence of evidence, but to show what was the supposed evidence out of which macaulay's imagination conjured this vision of horror. fitzjames remarks in a letter that his investigations had given him a very low opinion of the way in which history was written, and certainly, if macaulay's statement was a fair specimen, the estimate could hardly be too low. i may admit that, to my mind, the purely judicial method followed by fitzjames has its disadvantages. it tends to the exclusion of considerations which, though rightly excluded from a criminal inquiry, cannot be neglected by an historian. a jury would be properly directed to acquit hastings upon the charge of having instigated the prosecution of nuncomar. yet, after all, it is very hard to resist the impression that he must have had some share, more or less direct, in producing an event which occurred just at the right moment and had such fortunate results for him. it would be very wrong to hang a man upon such presumptions; but it is impossible to deny that they have a logical bearing upon the facts. however this may be, i think it is undeniable that fitzjames did good service to history in showing once for all the ruthlessness and extravagance of macaulay's audacious rhetoric. it is characteristic that while making mincemeat of macaulay's most famous essay, fitzjames cannot get rid of his tenderness for the great 'tom' of his boyish days. besides praising the literary skill, which indeed, is part of his case, he parts from his opponent with the warm eulogy which i have previously noticed. he regards macaulay as deluded by james mill and by the accepted whig tradition. he condemns mill, whose dryness and severity have gained him an undeserved reputation for impartiality and accuracy; he speaks--certainly not too strongly--of the malignity of francis; and he is, i think, a little hard upon burke, sheridan, and elliot, who were misled by really generous feelings (as he fully admits) into the sentimental rhetoric by which he was always irritated. he treats them as he would have put down a barrister trying to introduce totally irrelevant eloquence. macaulay escapes more easily. fitzjames felt that the essay when first published was merely intended as a summary of the accepted version, making no pretensions to special research. the morality of this judgment is questionable. burke, believing sincerely that hastings was a wicked and corrupt tyrant, inferred logically that he should be punished. macaulay, accepting burke's view of the facts, calmly asserts that hastings was a great criminal, and yet with equal confidence invites his readers to worship the man whose crimes were useful to the british empire. fitzjames disbelieved in the crimes, and could therefore admire hastings without reserve as the greatest man of the century. his sympathy with macaulay's patriotism made him, i think, a little blind to the lax morality with which it was in this case associated. there is yet another point upon which i think that macaulay deserves a severer sentence. 'it is to be regretted,' says fitzjames, 'that macaulay should never have noticed the reply made to the essay by impey's son.'[ ] unluckily this is not a solitary instance. macaulay, trusting to his immense popularity, took no notice of replies which were too dull or too complicated to interest the public. fitzjames would himself have been utterly incapable of behaviour for which it is difficult to discover an appropriate epithet, but which certainly is inconsistent with a sincere and generous love of fair play. if he did not condemn macaulay more severely, i attribute it to the difficulty which he always felt in believing anything against a friend or one associated with his fondest memories. had i written the book myself, i should have felt bound to say something unpleasant: but i am hardly sorry that fitzjames tempered his justice with a little excess of mercy. the scheme of continuing this book by an account of warren hastings was not at once dropped, but its impracticability became obvious before many months had passed. fitzjames was conducting the derby assizes in april , when he had a very serious attack of illness. his wife was fortunately with him, and, after consulting a doctor on the spot, he returned to london, where he consulted sir andrew clark. a passage from a letter to lady egerton explains his view of what had happened. 'i suppose,' he says (april , ), 'that mary has told you the dreadful tale of my getting up in the morning and finding that my right hand had either forgot its cunning or had turned so lazy that i could not write with it, and how i sent for a derby doctor, and how he ordered me up to london, and how clark condemned me to three months' idleness and prison diet--i must admit, of a sufficiently liberal kind. fuller sees the sentence carried out in detail. i have had about three days' experience of it, and i must own that i already feel decidedly better. i think that after the long vacation i shall be thoroughly well again. in the meantime, i feel heartily ashamed of myself. i always did consider any kind of illness or weakness highly immoral, but one must not expect to be either better or stronger than one's neighbours; and i suppose there is some degree of truth in what so many people say on sundays about their being miserable sinners.' he adds that he is having an exceedingly pleasant time, which would be still more pleasant if he could write with his own hand (the letter is dictated). he has 'whole libraries of books' into which he earnestly desires to look. he feels like a man who has exchanged dusty boots for comfortable slippers; he is reading spanish 'with enthusiasm'; longing to learn italian, to improve his german, and even to read up his classics. he compares himself to a traveller in siberia who, according to one of his favourite anecdotes, loved raspberries and found himself in a desert entirely covered with his favourite fruit. he took the blow gallantly; perhaps rather too lightly. he was, of course, alarmed at first by the symptoms described. clark ultimately decided that, while the loss of power showed the presence of certain morbid conditions, a careful system of diet might keep at bay for an indefinite time the danger of the development of a fatal disease. fitzjames submitted to the medical directions with perhaps a little grumbling. he was not, like his father, an ascetic in matters of food. he had the hearty appetite natural to his vigorous constitution. he was quite as indifferent as his father to what, in the old phrase, used to be called 'the pleasures of the table.' he cared absolutely nothing for the refinements of cookery, and any two vintages were as indistinguishable to him as two tunes--that is, practically identical. he cared only for simple food, and i used, in old days, to argue with him that a contempt for delicacies was as fastidious as a contempt for plain beef and mutton. however that may be, he liked the simplest fare, but he liked plenty of it. to be restricted in that matter was, therefore, a real hardship. he submitted, however, and his health improved decidedly for the time. perhaps he dismissed too completely the thought of the danger by which he was afterwards threatened. but, in spite of the improvement, he had made a step downwards. he was allowed to go on circuit again in the summer, after his three months' rest, and soon felt himself quite equal to his work. but, from this time, he did not add to his burthens by undertaking any serious labours of supererogation. iii. judicial characteristics i will here say what i can of his discharge of the judicial functions which were henceforth almost his sole occupation. in the first place, he enjoyed the work, and felt himself to be in the position most suitable to his powers. independent observers took, i believe, the same view. i have reported the criticisms made upon his work at the bar, and have tried to show what were the impediments to his success. in many respects these impediments ceased to exist, and even became advantages, when he was raised to the bench. the difficulty which he had felt in adapting himself to other men's views, the contempt for fighting battles by any means except fair arguments upon the substantial merits of the case, were congenial, at least, to high judicial qualities. he despised chicanery of all kinds, and formed independent opinions upon broad grounds instead of being at the mercy of ingenious sophistry. he was free from the foibles of petty vanity upon which a dexterous counsel could play, and had the solid, downright force of mind and character which gives weight to authority of all kinds. i need not labour to prove that masculine common sense is a good judicial quality. popular opinion, however, is apt to misconstrue broad epithets and to confound vigour with harshness. fitzjames acquired, among careless observers, a certain reputation for severity. i have not the slightest wish to conceal whatever element of truth there might be in such a statement. but i must begin by remarking a fact which, however obvious, must be explicitly stated. if there was one thing hateful to fitzjames, and sure to call out his strongest indignation, it was oppression in any form. the bullying from which he suffered at school had left, as i have said, a permanent hatred for bullies. it had not encouraged him, as it encourages the baser natures, to become a bully in his turn, but rather to hate and trample down the evil thing wherever he met it. his theories, as i have said, led him to give a prominent place (too prominent, as i think) to what he called 'coercion.' coercion in some form was inevitable upon his view; but right coercion meant essentially the suppression of arbitrary violence and the substitution for it of force regulated by justice. coercion, in the form of law, was identical with the protection of the weak against the strong and the erection of an impregnable barrier against the tyrannous misuse of power. this doctrine exactly expressed his own character, for, as he was strong, he was also one of the most magnanimous of men. he was incapable of being overbearing in social intercourse. he had the fighting instinct to the full. an encounter with a downright enemy was a delight to him. but the joy of battle never deadened his instinct of fair play. he would speak his mind, sometimes even with startling bluntness, but he never tried to silence an opponent by dogmatism or bluster. the keenest argument, therefore, could not betray him into the least discourtesy. he might occasionally frighten a nervous antagonist into reticence and be too apt to confound such reticence with cowardice. but he did not take advantage of his opponent's weakness. he would only give him up as unsuited to play the game in the proper temper. in short, he represented what is surely the normal case of an alliance between manliness and a love of fair play. it is the weaker and more feminine, or effeminate, nature that is generally tempted to resort to an unfair use of weapons. when, therefore, fitzjames found himself in a position of authority, he was keenly anxious to use his power fairly. he became decidedly more popular on the bench than he had been at the bar. his desire to be thoroughly fair could not be stronger; but it had a better opportunity of displaying itself. the counsel who practised before him recognised his essential desire to allow them the fullest hearing. he learnt to 'suffer fools' patiently, if not gladly. i apologise, of course, for supposing that any barrister could be properly designated by such a word; but even barristers can occasionally be bores. some gentlemen, who are certainly neither the one nor the other, have spoken warmly of his behaviour. the late mr. montagu williams, for example, tells with pleasant gratitude how fitzjames courteously came down from the bench to sit beside him and so enabled him to spare a voice which had been weakened by illness. his comment is that fitzjames concealed 'the gentleness of a woman' under a stern exterior. so mr. henry dickens tells me of an action for slander in which he was engaged when a young barrister. both slanderer and slandered were employed in billingsgate. the counsel for the defence naturally made a joke of sensibility to strong language in that region. mr. dickens was in despair when he saw that the judge and jury were being carried away by the humorous view of the case. knowing the facts, he tried to bring out the serious injury which had been inflicted. fitzjames followed him closely, became more serious, and summed up in his favour. when a verdict had been returned accordingly, he sent a note to this effect:--'dear dickens, i am very grateful to you for preventing me from doing a great act of injustice.' 'he was,' says mr. dickens, 'one of the fairest-minded men i ever knew.' his younger son has described to me the kindness with which he encouraged a young barrister--the only one who happened to be present--to undertake the defence of a prisoner, and helped him through a difficult case which ended by an acquittal upon a point of law. 'i only once,' says my nephew, 'heard him interrupt counsel defending a prisoner,' except in correcting statements of fact. the solitary exception was in a case when palpably improper matter was being introduced. in spite of his patience, he occasionally gave an impression of irritability, for a simple reason. he was thoroughly determined to suppress both unfairness and want of courtesy or disrespect to the court. when a witness or a lawyer, as might sometimes happen, was insolent, he could speak his mind very curtly and sharply. a powerful voice and a countenance which could express stern resentment very forcibly gave a weight to such rebukes, not likely to be forgotten by the offender. he had one quaint fancy, which occasionally strengthened this impression. witnesses are often exhorted to 'watch his lordship's pen' in order that they may not outrun his speed in taking notes. now fitzjames was proud of his power of rapid writing (which, i may remark, did not include a power of writing legibly). he was therefore nervously irritable when a witness received the customary exhortation: 'if you watch my pen,' he said to a witness, 'i will send you to prison': which, as he then had to explain, was not meant seriously. it came to be understood that, in his case, the formula was to be avoided on pain of being considered wantonly offensive. he rigidly suppressed, at any rate, anything which could lower the dignity of the proceedings. he never indulged in any of those jokes to which reporters append--sometimes rather to the reader's bewilderment--the comment, 'loud laughter.' nor would he stand any improper exhibitions of feeling in the audience. when a spectator once laughed at a piece of evidence which ought to have caused disgust, he ordered the man to be placed by the side of the prisoner in the dock, and kept him there till the end of the trial. he disliked the promiscuous attendance of ladies at trials, and gave offence on one occasion by speaking of some persons of that sex who were struggling for admission as 'women.' he was, however, a jealous defender of the right of the public to be present under proper conditions; and gave some trouble during a trial of dynamiters, when the court-house had been carefully guarded, by ordering the police to admit people as freely as they could. his sense of humour occasionally made itself evident in spite of his dislike to levity. he liked to perform variations upon the famous sentence, 'god has, in his mercy, given you a strong pair of legs and arms, instead of which you go about the country stealing ducks'; and he would detail absurd or trifling stories with an excess of solemnity which betrayed to the intelligent his perception of their comic side. fitzjames thought, and i believe correctly, that he was at his best when trying prisoners, and was also perhaps conscious, with equal reason, i believe, that no one could do it better. his long experience and thorough knowledge of the law of crime and of evidence were great qualifications. his force of character combined with his hatred of mere technicalities, and his broad, vigorous common sense, enabled him to go straight to the point and to keep a firm hand upon the whole management of the case. no rambling or irrelevance was possible under him. his strong physique, and the deep voice which, if not specially harmonious, was audible to the last syllable in every corner of the court, contributed greatly to his impressiveness. he took advantage of his strength to carry out his own ideal of a criminal court as a school of morality. 'it may be truly said,' as he remarks, 'that to hear in their happiest moments the summing up of such judges as lord campbell, lord chief justice erle, or baron parke, was like listening not only (to use hobbes's famous expression) to law living and armed, but to justice itself.'[ ] he tried successfully to follow in their steps. justice implies fair play to the accused. i have already noticed how strongly he insists upon this in his writings. they show how deeply he had been impressed in his early years at the bar by the piteous spectacle of poor ignorant wretches, bewildered by an unfamiliar scene, unable to collect their thoughts, or understand the nature of the proceedings, and sometimes prevented by the very rules intended for their protection from bringing out what might be a real defence. many stories have been told me of the extreme care with which he would try to elicit the meaning of some muddled remonstrance from a bewildered prisoner, and sometimes go very near to the verge of what is permitted to a judge by giving hints which virtually amounted to questions, and so helping prisoners to show that they were innocent or had circumstances to allege in mitigation. he always spoke to them in a friendly tone, so as to give them the necessary confidence. a low bully, for example, was accused of combining with two women to rob a man. a conviction seemed certain till the prisoners were asked for their defence; when one of them made a confused and rambling statement. fitzjames divined the meaning, and after talking to them for twenty minutes, during which he would not directly ask questions, succeeded in making it clear that the prosecutor was lying, and obtained an acquittal. one other incident out of many will be enough. a man accused of stabbing a policeman to avoid arrest, pleaded guilty and was sentenced to seven years' penal servitude. on being removed by the warders he clung to the rail, screaming, 'you can't do it. you don't know what you are doing!' fitzjames shouted to the warders to put him back; discovered by patient hearing that the man was meaning to refer to some circumstance in extenuation, and after calling the witnesses found that the statement was confirmed. 'now, you silly fellow,' he said, 'if you had pleaded "not guilty," as i told you, all this would have come out. it is true that i did not know what i was doing, but it was your own fault.' he then reduced the sentence to nine months, saying, 'does that satisfy you?' 'thank you, my lord,' replied the man, 'that's quite right,' and left the court quite cheerfully. fitzjames was touched by the man's confidence in a judge, and by his accurate knowledge of the proper legal tariff of punishment. fitzjames was scrupulously anxious in other ways not to wrest the law, even if unsatisfactory in itself, out of dislike to the immediate offender. one instance is given by the curious case of the queen v. ashwell (in ). a man had borrowed a shilling from another, who gave him a sovereign by mistake. the borrower discovered the mistake an hour afterwards, and appropriated the sovereign. morally, no doubt, he was as dishonest as a thief. but the question arose whether he was in strict law guilty of larceny. fitzjames delivered an elaborate judgment to show that upon the accepted precedents of law, he was not guilty, inasmuch as the original act of taking was innocent. another aspect of justice, upon which fitzjames dwells in his books, was represented in his practice. a judge, according to him, is not simply a logic machine working out intellectual problems, but is the organ of the moral indignation of mankind. when, after a studiously fair inquiry, a man had been proved to be a scoundrel, he became the proper object of wrath and of the punishment by which such wrath is gratified. fitzjames undeniably hated brutality, and especially mean brutality; he thought that gross cruelty to women and children should be suppressed by the lash, or, if necessary, by the gallows. his sentences, i am told, were not more severe than those of other judges: though mention is made of one case in early days in which he was thought to be too hard upon a ruffian who, on coming out of gaol, had robbed a little child of a sixpence. but his mode of passing sentence showed that his hatred of brutality included hatred of brutes. he did not affect to be reluctant to do his duty. he did not explain that he was acting for the real good of the prisoner, or apologise for being himself an erring mortal. he showed rather the stern satisfaction of a man suppressing a noxious human reptile. thus, though he carefully avoided anything savouring of the theatrical, the downright simplicity with which he delivered sentence showed the strength of his feeling. he never preached to the convicts, but spoke in plain words of their atrocities. the most impressive sentence i ever heard, says one of his sons, was one upon a wife-murderer at norwich, when he rigidly confined himself to pointing out the facts and the conclusiveness of the evidence. another man was convicted at manchester of an attempt to murder his wife. he had stabbed her several times in the neck, but happened to miss a fatal spot; and he cross-examined her very brutally on the trial. fitzjames, in delivering sentence, told him that a man who had done the same thing, but with better aim, 'stood at the last assizes where you now stand, before the judge who is now sentencing you. the sentence upon him was that he should be hanged by the neck till he was dead, and he was hanged by the neck till he was dead.' the words emphatically pronounced produced a dead silence, with sobs from the women in court. it was, he proceeded, by a mere accident that the result of the prisoner's crime was different, and that, therefore, the gravest sentence was the only proper sentence; and that is 'that you be kept in penal servitude for the term of your natural life.' this again was spoken with extreme earnestness: and the 'life' sounded like a blow. there was a scream from the women, and the prisoner dropped to the ground as if he had been actually struck. fitzjames spoke as if he were present at the crime, and uttering the feelings roused by the ferocious treatment of a helpless woman. some of his letters record his sense of painful responsibility when the question arose as to reprieving a prisoner. he mentions a case in which he had practically had to decide in favour of carrying out a capital sentence. 'for a week before,' he writes, 'i had the horrible feeling of watching the man sinking, and knowing that i had only to hold out my hand to save his life. i felt as if i could see his face and hear him say, "let me live; i am only thirty-five; see what a strong, vigorous, active fellow i am, with perhaps fifty years before me: must i die?" and i mentally answered, yes, you must. i had no real doubts and i feel no remorse; but it was a very horrible feeling--all the worse because when one has a strong theoretical opinion in favour of capital punishment one is naturally afraid of being unduly hard upon a particular wretch to whom it is one's lot to apply the theory.' on another occasion he describes a consultation upon a similar case with sir w. harcourt, then home secretary. both of them felt painfully the contrast with their old free conversations, and discussed the matter with the punctilious ceremony corresponding to the painfulness of the occasion. there was something, as they were conscious, incongruous in settling a question of life and death in a talk between two old friends. i must briefly mention two such cases which happened to excite public attention. on july and , , a man named lipski was tried for a most brutal murder and convicted. his attorney wrote a pamphlet disputing the sufficiency of the evidence.[ ] fitzjames was trying a difficult patent case which took up the next fortnight (august to ). he saw the attorney on monday, the th, and passed that evening and the next morning in writing his opinion to the home secretary (mr. h. matthews). on thursday he had another interview with the attorney and a thorough discussion of the whole matter with mr. matthews. some points had not been properly brought out on the trial; but the inquiry only strengthened the effect of the evidence. mr. matthews decided not to interfere, and fitzjames went to stay with froude at salcombe on the saturday. meanwhile articles full of gross misstatements had appeared in certain newspapers. fitzjames himself reflected that his occupation with the patent case had perhaps prevented his giving a full consideration to the case, and that an immediate execution of the sentence would at least have an appearance of undue haste. he therefore telegraphed to suggest a week's respite, though he felt that the action might look like yielding to the bullying of a journalist. mr. matthews had independently granted a respite upon a statement that a new piece of evidence could be produced. fitzjames returned on the monday, and spent a great part of the week in reading through all the papers, reexamining a witness, and holding consultations with mr. matthews. the newspapers were still writing, and members of parliament signed a request for a commutation of the sentence. after the most careful consideration, however, fitzjames could entertain no reasonable doubt of the rightness of the verdict, and mr. matthews agreed with him. a petition from three jurors was sent in upon sunday, the st, but did not alter the case. finally, upon the same afternoon, lipski confessed his guilt and the sentence was executed next day. 'i hope and believe that i have kept the right path,' writes fitzjames, 'but it has been a most dreadful affair.' 'i hardly ever remember so infamous and horrible a story.' he was proportionally relieved when it was proved that he had acted rightly. the other case, for obvious reasons, must be mentioned as briefly as possible. on august , , mrs. maybrick was convicted of the murder of her husband. the sentence was afterwards commuted with fitzjames's approval, and, i believe, at his suggestion, to penal servitude for life, upon the ground, as publicly stated, that although there was no doubt that she had administered poison, it was possible that her husband had died from other causes. a great deal of feeling was aroused: fitzjames was bitterly attacked in the press, and received many anonymous letters full of the vilest abuse. hatred of women generally, and jealousy of the counsel for the defence were among the causes of his infamous conduct suggested by these judicious correspondents. i, of course, have nothing to say upon these points, nor would i say anything which would have any bearing upon the correctness of the verdict. but as attacks were made in public organs upon his behaviour as judge, i think it right to say that they were absolutely without foundation. his letters show that he felt the responsibility deeply; and that he kept his mind open till the last. from other evidence i have not the least doubt that his humanity and impartiality were as conspicuous in this as in other cases, and i believe were not impugned by any competent witnesses, even by those who might doubt the correctness of the verdict. fitzjames's powers were such as naturally gave him unsurpassed authority with juries in criminal cases. a distinguished advocate was about to defend a prisoner upon two similar counts before fitzjames and another eminent judge. the man was really guilty: but, said the counsel, and his prediction was verified, i shall obtain a verdict of 'not guilty' before the other judge, but not before stephen. in civil cases, i am told that an impartial estimate of his merits would require more qualification. the aversion to technicality and over-subtlety, to which i have so often referred, appears to have limited his powers. he did not enjoy for its own sake the process of finding a clue through a labyrinth of refined distinctions, and would have preferred a short cut to what seemed to him the substantial merits of the case. he might, for example, regard with some impatience the necessity of interpreting the precise meaning of some clause in a legal document which had been signed by the parties concerned as a matter of routine, without their attention being drawn to the ambiguities latent in their agreement. his experience had not made him familiar with the details of commercial business, and he had to acquire the necessary information rather against the grain. to be a really great lawyer in the more technical sense, a man must, i take it, have a mind full of such knowledge, and feel pleasure in exercising the dialectical faculty by which it is applied to new cases. in that direction fitzjames was probably surpassed by some of his brethren; and he contributed nothing of importance to the elaboration of the more technical parts of the law. i find, however, that his critics are agreed in ascribing to him with remarkable unanimity the virtue of 'open-mindedness.' his trenchant way of laying down his conclusions might give the impression that they corresponded to rooted prejudices. such prejudices might of course intrude themselves unconsciously into his mind, as they intrude into the minds of most of us. but no one could be more anxious for fair play in argument as in conduct. he would give up a view shown to be erroneous with a readiness which often seemed surprising in so sturdy a combatant. he spared no pains in acquiring whatever was relevant to a case; whether knowledge of unfamiliar facts or of legal niceties and previous judicial decisions. though his mind was not stored with great masses of cases, he never grudged the labour of a long investigation. he aimed at seeing the case as a whole; and bringing out distinctly the vital issues and their relation to broad principles. he used to put the issues before the jury as distinctly as possible, and was then indifferent to their decision. in a criminal case he would have been inexpressibly shocked by a wrongful conviction, and would have felt that he had failed in his duty if a conviction had not taken place when the evidence was sufficient. in a civil case, he felt that he had done his work when he had secured fair play by a proper presentation of the question to the jury. his mastery of the laws of evidence would give weight to his opinion upon facts; though how far he might be open to the charge of cutting too summarily knots which might have been untied by more dexterity and a loving handling of legal niceties, is a question upon which i cannot venture to speak positively. i will only venture to refer to two judgments, which may be read with interest even by the unprofessional, as vigorous pieces of argument and lucid summaries of fact. one is the case ( ) of the 'attorney-general v. the edison telephone company,'[ ] in which the question arose whether a telephonic message was a telegram. if so, the company were infringing the act which gave to the post office the monopoly of transmitting telegrams. it was argued that the telephone transmitted the voice itself, not a mere signal. fitzjames pointed out that it might be possible to hear both the voice transmitted through the air and the sound produced by the vibrations of the wire. could the two sounds, separated by an interval, be one sound? the legal point becomes almost metaphysical. on this and other grounds fitzjames decided that a telephone was a kind of telegraph, and the decision has not been disturbed. the other case was that of the queen v. price,[ ] tried at cardiff in . william price, who called himself a druid, was an old gentleman of singularly picturesque appearance who had burnt the body of his child in conformity, i presume, with what he took to be the rites of the druids. he was charged with misdemeanour. fitzjames gave a careful summary of the law relating to burials which includes some curious history. he concluded that there was no positive law against burning bodies, unless the mode of burning produced a nuisance. the general principle, therefore, applied that nothing should be a crime which was not distinctly forbidden by law. the prisoner was acquitted, and the decision has sanctioned the present practice of cremation. fitzjames, as i gather from letters, was much interested in the quaint old druid, and was gratified by his escape from the law. iv. miscellaneous occupations i have now described the most important labours which fitzjames undertook after his appointment to a judgeship. every minute of the first six years ( - ) might seem to have been provided with ample occupation. even during this period, however, he made time for a few short excursions into other matters, and though after he undertook no heavy task, he was often planning the execution of the old projects, and now and then uttering his opinions through the accustomed channels. he was also carrying on a correspondence, some of which has been kindly shown to me. the correspondence with lord lytton continued, though it naturally slackened during lytton's stay in england, from to . it revived, though not so full and elaborate as of old, when, in , lytton became ambassador at paris. fitzjames's old friend, grant duff, was governor of madras from to , and during that period especially, fitzjames wrote very fully to lady grant duff, who was also a correspondent both before and afterwards. if i had thought it desirable to publish any number of these or the earlier letters, i might have easily swelled this book to twice or three times its size. that is one good reason for abstaining. other reasons are suggested by the nature of the letters themselves. they are written with the utmost frankness, generally poured out at full speed in intervals of business or some spare moments of his so-called vacation. they made no pretensions to literary form, and approach much more to discursive conversations than to anything that suggests deliberate composition. much of them, of course, is concerned with private matters which it would be improper to publish. a large part, again, discusses in an unguarded fashion the same questions of which he had spoken more deliberately in his books. there is no difference in the substance, and i have thought it only fair to him to take his own published version of his opinions, using his letters here and there where they incidentally make his views clearer or qualify sharp phrases used in controversy. i have, however, derived certain impressions from the letters of this period and from the miscellaneous articles of the same time; which i shall endeavour to describe before saying what remains to be said of his own personal history. one general remark is suggested by a perusal of the letters. fitzjames says frequently and emphatically that he had had one of the happiest of lives. in the last letter of his which i have seen, written, indeed, when writing had become difficult for him, he says that he is 'as happy as any man can be,' and had nothing to complain of--except, indeed, his illegible handwriting. this is only a repetition of previous statements at every period of his life. when he speaks of the twenty-five years of long struggle, which had enabled him to rise from the bar to the bench, he adds that they were most happy years, and that he only wishes that they could come over again. it is difficult, of course, to compare our lot with that of our neighbours. we can imagine ourselves surrounded by their circumstances, but we cannot so easily adopt their feelings. fitzjames very possibly made an erroneous estimate of the pains and pleasures which require sensibilities unlike his own; and conversely it must be remembered that he took delight in what would to many men be a weariness of the flesh. the obviously sincere belief, however, in his own happiness proves at least one thing. he was thoroughly contented with his own position. he was never brooding over vexations, or dreaming of what might have been. could he have been asked by providence at any time, where shall i place you? his answer would almost always have been, here. he gives, indeed, admirable reasons for being satisfied. he had superabundant health and strength, he scarcely knew what it was to be tired, though he seemed always to be courting fatigue, or, if tired, he was only tired enough to enjoy the speedy reaction. his affections had a strength fully proportioned to his vigour of mind and body; his domestic happiness was perfect; and he had a small circle of friends both appreciative and most warmly appreciated. finally, if the outside world was far from being all that he could wish, it was at least superabundantly full of interest. though indifferent to many matters which occupy men of different temperament, he had quite enough not only to keep his mind actively engaged, but to suggest indefinite horizons of future inquiry of intense interest. he was in no danger of being bored or suffering from a famine of work. under such conditions, he could not help being happy. yet fitzjames's most decided convictions would have suited a thorough-going pessimist. neither swift nor carlyle could have gone much beyond him in condemning the actual state of the political or religious condition of the world. things, on the whole, were in many directions going from bad to worse. the optimist is apt to regard these views as wicked, and i do not know whether it will be considered as an aggravation or an extenuation of his offence that, holding such opinions, fitzjames could be steadily cheerful. i simply state the fact. his freedom from the constitutional infirmities which embittered both the great men i have mentioned, and his incomparably happier domestic circumstances, partly account for the difference. but, moreover, it was an essential part of his character to despise all whining. there was no variety of person with whom he had less sympathy than the pessimist whose lamentations suggest a disordered liver. he would have fully accepted the doctrine upon which mr. herbert spencer has insisted, that it is a duty to be happy. moreover, the way to be happy was to work. work, i might almost say, was his religion. 'be strong and of a good courage' was the ultimate moral which he drew from doubts and difficulties. everything round you may be in a hideous mess and jumble. that cannot be helped: take hold of your tools manfully; set to work upon the job that lies next to your hand, and so long as you are working well and vigorously, you will not be troubled with the vapours. be content with being yourself, and leave the results to fate. sometimes with his odd facility for turning outwards the ugliest side of his opinions, he would call this selfishness. it is a kind of selfishness which, if everyone practised it, would not be such a bad thing. i must mention, though briefly, certain writings which represent his views upon religious matters: i have sufficiently indicated his position, which was never materially changed. his thoughts ran in the old grooves, though perhaps with a rather clearer perception of their direction. in june he published an article upon the 'unknown and the unknowable' in the 'nineteenth century,' declaring that mr. herbert spencer's 'unknowable' and mr. harrison's 'humanity' were mere shadowy figments. 'religion,' he maintains, will not survive theology. to this, however, he adds, with rather surprising calmness, that morality will survive religion. if the agnostics and positivists triumph, it will be transformed, not abolished. the christian admiration for self-sacrifice, indeed, and the christian mysticism will disappear, and it will turn out that the respectable man of the world and the lukewarm believer were after all in the right. considering his own dislike to the mystic and the priestly view of things, this might almost seem to imply a reconciliation with the sceptics. he observes, indeed, in a letter that there is really little difference between himself and mr. harrison, except in mr. harrison's more enthusiastic view of human nature. but he confesses also that the article has given pleasure to his enemies and pain to his friends. though his opinions, in short, are sceptical, the consequences seem to him so disagreeable that he has no desire to insist upon them. in fact, he wrote little more upon these topics. he was, indeed, afterwards roused to utterance by an ingenious attempt of mr. mivart to show a coincidence between full submission to the authority of the catholic church and an equal acceptance of the authority of reason. in a couple of articles in the 'nineteenth century' (october and january ), he argued with his old vigour that mr. mivart was in fact proposing to put a match in a powder barrel and expect half to explode and the other half to remain unaffected. this was his last encounter upon the old question of authority. in the same year (april and may ) he wrote two articles upon a book by which he was singularly interested, professor max müller's 'science of thought'; he expounds professor max müller's philology in the tone of an ardent disciple, but makes his own application to philosophy. i do not suppose that the teacher would accept all the deductions of his follower. fitzjames, in fact, found in the 'science of thought' a scientific exposition of the nominalism which he had more or less consciously accepted from hobbes or horne tooke. max müller, he says, in a letter, has been knocking out the bottom of all speculative theology and philosophy. thought and language, as he understands his teacher to maintain, are identical. now language is made up of about roots combined in various ways. the words supposed to express more abstract conceptions, some of them highly important in theology, are mere metaphors founded upon previous metaphors, twisted and changed in meaning from century to century. nothing remains but an almost absolute scepticism, for on such terms no certainty can be obtained. in a letter he states that the only problems which we can really solve are those of space and number; that even astronomy involves assumptions to which there are 'unanswerable objections'; that what is loosely called science, darwinism, for example, is 'dubious in the extreme'; that theology and politics are so conjectural as to be practically worthless; and judicial and historical evidence little more than a makeshift. in short, his doctrine is 'scepticism directed more particularly against modern science and philosophy.' i do not take these hasty utterances as expressing a settled state of opinion. i only quote them as vehement expressions of an instinctive tendency. his strong conviction of the fallacies and immoralities of the old theological dogmatism was combined with an equally strong conviction of the necessity of some embodiment of the religious instincts and of the impotence of the scientific dogmatism to supply it. he therefore was led to a peculiar version of the not uncommon device of meeting the sceptic by a more thorough-going scepticism. it is peculiar because he scorned to take the further step of accepting a dogmatic belief on sceptical grounds; but it certainly left him in a position of which silence was, if i may say so, the only obvious expression of his feeling. one curious illustration of his feelings is given by an utterance at the beginning of this period. nobody had less tendency to indulge in versification. when a man has anything to say, he observes to lord lytton on one occasion, as an excuse for not criticising his friend adequately, 'i am always tempted to ask why he cannot say it in plain prose.' i find now that he once wrote some lines on circuit, putting a judgment into rhyme, and that they were read with applause at a dinner before the judges. they have disappeared; but i can quote part of his only other attempt at poetry. tennyson's poem called 'despair' had just appeared in the 'nineteenth century' for november . the hero, it will be remembered, maddened by sermons about hell and by 'know-nothing' literature, throws himself into the sea with his wife and is saved by his preacher. the rescuer only receives curses instead of thanks. fitzjames supplies the preacher's retort.[ ] i give a part; omitting a few lines which, i think, verged too much on the personal:-- so you're minded to curse me, are you, for not having let you be, and for taking the trouble to pull you out when your wife was drowned in the sea? i'm inclined to think you are right--there was not much sense in it; but there was no time to think--the thing was done in a minute. you had not gone very far in; you had fainted where you were found, you're the sort of fellow that likes to drown with his toe on the ground. however, you turn upon me and my creed with all sorts of abuse, as if any preaching of mine could possibly be of use to a man who refused to see what sort of a world he had got to live in and make the best of, whether he liked it or not. i am not sure what you mean; you seem to mean to say that believing in hell you were happy, but that one unfortunate day you found out you knew nothing about it, whereby the troubles of life became at once too heavy to bear for yourself and your wife. that sounds silly; so, perhaps, you may mean that all is wrong all round, my creed and the know-nothing books, and that truth is not to be found-- that's sillier still: for, if so, the know-nothing books are right, and you're a mere spiritless cur who can neither run nor fight, too great a coward to live and too great a coward to die, fit for nothing at all but just to sit down and cry. . . . . . . . . . why, man, we're all in one boat, as everyone can see, bishops, and priests, and deacons, and poor little ranters like me. there's hell in the church of england and hell in the church of rome, and in all other christian churches, abroad as well as at home. the part of my creed you dislike may be too stern for you, many brave men believe it--aye, and enjoy life, too. the know-nothing books may alarm you; but many a better man knows he knows nothing and says so, and lives the best life he can. if there is a future state, face its hopes and terrors gravely; the best path to it must be to bear life's burthens bravely. and even if there be none, why should you not live like a man, enjoying whatever you have as much and as long as you can? in the world in which we are living there's plenty to do and to know; and there's always something to hope for till it's time for us to go. 'despair' is the vilest of words, unfit to be said or thought, whether there is a god and a future state or not. if you really are such a wretch, that you're quite unfit to live, and ask my advice, i'll give you the best that i have to give: drown yourself by all means; i was wrong and you were right. i'll not pull you out any more; but be sure you drown yourself quite. 'despair is the vilest of words.' that expresses fitzjames's whole belief and character. faiths may be shaken and dogmas fade into meaningless jumbles of words: science may be unable to supply any firm ground for conduct. still we can quit ourselves like men. from doubt and darkness he can still draw the practical conclusion, 'be strong and of a good courage.' and, therefore, fitzjames could not be a pessimist in the proper sense; for the true pessimist is one who despairs of the universe. such a man can only preach resignation to inevitable evil, and his best hope is extinction. sir alfred lyall's fine poem describes the hindoo ascetic sitting by the bank of the sacred stream and watching the legions as they pass while cannon roar and bayonets gleam. to him they are disturbing phantoms, and he longs for the time when they will flicker away like the smoke of the guns on the windswept hill. he meanwhile sits 'musing and fasting and hoping to die.' fitzjames is the precise antithesis: his heart was with the trampling legions, and for the ascetic he might feel pity, but certainly neither sympathy nor respect. he goes out of his way more than once to declare that he sees nothing sublime in buddhism. 'nirvana,' he says in a letter, 'always appeared to me to be at bottom a cowardly ideal. for my part i like far better the carlyle or calvinist notion of the world as a mysterious hall of doom, in which one must do one's fated part to the uttermost, acting and hoping for the best and trusting' that somehow or other our admiration of the 'noblest human qualities' will be justified. he had thus an instinctive dislike not only for buddhism, but for the strain of similar sentiment in ascetic versions of christianity. he had a great respect for mohammedanism, and remarks that of all religious ceremonies at which he had been present, those which had most impressed him had been a great mohammedan feast in india and the service in a simple scottish kirk. there, as i interpret him, worshippers seem to be in the immediate presence of the awful and invisible power which rules the universe; and without condescending to blind themselves by delusive symbols and images and incense and priestly magic, stand face to face with the inscrutable mystery. the old puritanism comes out in a new form. the calvinist creed, he says in 'liberty, equality, fraternity,' was the 'grain on which the bravest, hardiest, and most vigorous race of men that ever trod the earth were nourished.' that creed, stripped of its scholastic formulas, was sufficient nourishment for him. he sympathises with it wherever he meets it. he is fond of quoting even a rough blackguard, one azy smith, who, on being summoned to surrender to a policeman, replied by sentencing 'give up' to a fate which may be left to the imagination. fitzjames applied the sentiment to the british empire in india. he was curiously impressed, too, by some verses which he found in an australian newspaper and was afterwards given to quoting. they turned out to be written by adam lindsay gordon (the 'sick stockrider'). i have had my share of pastime, and i've done my share of toil, and life is short--the longest life a span. i care not now to tarry for the corn or for the oil, or for the wine that maketh glad the heart of man; for good undone and time misspent and resolutions vain 'tis somewhat late to trouble--this i know; i would live the same life over if i had to live again and the chances are i go where most men go. i am perfectly well aware of the comments which that statement may suggest. the orthodox may, if they please, draw a moral for their own tastes; and i could draw a moral which is not quite orthodox. i only say that i have tried to describe his final position in the matter, without reserve; and that, in my opinion, whatever else it shows, it reveals both the sincerity and the manliness of a man who dared to look facts in the face. i must speak, though briefly, of his political sympathies in this period, for they were exceedingly deep and strong. his position as a judge gave him the solace of an employment which could divert his mind from annoying reflections. it may be held that it should also have restrained him more completely than it did from taking any part in party controversies. i confess that to be my own opinion. he felt that he ought to keep within limits; but i cannot help thinking that they might have been a little closer than he would quite acknowledge. the old journalistic impulse, however, stirred within him when he saw certain political moves, and he found it impossible quite to keep silence. the first occasion of his writing was upon the starting of the 'st. james's gazette,' under the editorship of his old friend mr. greenwood. both personal and political sympathy induced him, as he put it, 'to take mr. greenwood's shilling,' and i believe that he also enlisted maine. besides the poem which i have quoted, he wrote a good many articles upon legal and literary topics from to , and some which came very close to contemporary politics. the doctrine may be pretty well summed up in the phrase which he quotes more than once--[greek: dêmos psêphizôn megalên archên dialysei.] i need not follow the applications which he indicates both to indian matters and to mr. gladstone's irish policy. he ceased to contribute after the beginning of , but he wrote occasional letters under his own name to the 'times.' the chief of these (i believe that there were others) were reprinted, and attracted some notice. in a question arose in which he had a special interest. in passing the criminal procedure bill he had accepted what was described as a compromise. magistrates were to receive powers of dealing summarily in trifling cases with europeans who had previously had a right to be tried by juries before the high courts. fitzjames accepted the proposal that the power should be entrusted only to magistrates of european birth. the 'ilbert bill,' in , proposed to remove this restriction, and so to confer a right of imprisoning europeans for three months upon native magistrates, of whom there were now a greater number. fitzjames, whose name had been mentioned in the controversy, wrote very earnestly against this proposal.[ ] he asserted the right of englishmen to be tried by magistrates who could understand their ways of thought, and approved the remark that if we were to remove all anomalies from india, our first step should be to remove ourselves. this, however, was, to his mind, only one example of the intrusion of an evil principle. a more serious case occurred upon mr. gladstone's introduction of the first home rule bill in . fitzjames wrote some elaborate letters upon the 'irish question,' when the measure was anticipated, and wrote again upon the bill when the debates upon mr. gladstone's proposals were in progress.[ ] the letters begin by disavowing any 'party politics'--a phrase which he does not consider to exclude an emphatic expression of opinion both upon home rule and upon the land legislation. it is entirely superfluous to summarise arguments which have been repeated till nobody can want to hear more of them. briefly, i may say that fitzjames's teaching might be summarised by saying that ireland ought to be governed like india--justly, and in any case firmly. the demands both for home rule and for land legislation are, according to him, simply corollaries from the general principles of jacobinism and socialism. the empire will be destroyed and the landlords will be plundered. virtually we are dealing with a simple attempt at confiscation supported by an organised system of crime. the argument is put with his usual downright force, and certainly shows no symptoms of any decline of intellectual vigour. he speaks, he says, impelled by the 'shame and horror' which an englishman must feel at our feebleness, and asks whether we are cowards to be kicked with impunity? sometimes he hoped, though his hopes were not sanguine, that a point would yet be reached at which englishmen would be roused and would show their old qualities. but as a rule he turned, as his letters show, from the contemplation of modern politics with simple disgust. he is glad that he is, for the time at least, behind a safe breakwater, but no one can say how much longer it will withstand the advancing deluge. three months' rest after the attack of enabled him to go the summer circuit, and during the latter part of the year he was recovering strength. he became so much better that he was, perhaps, encouraged to neglect desirable precautions, and early in he writes that he has been able to dismiss from his mind a passing fear which had been vaguely present, that he might have to resign. in the following september, mr. w. h. smith requested him to become chairman of a commission to inquire into the ordnance department. what he learnt in that capacity strengthened his conviction as to the essential weakness of our administrative system; although the rumours of corruption, to which, i believe, the commission was owing, were disproved. he made, however, such suggestions as seemed practicable under the circumstances. while the commission lasted he presided three days a week, and sat as judge upon the other three. he felt himself so competent to do his duties as to confirm his belief that he had completely recovered. he did a certain amount of literary work after this. he made one more attempt to produce a second edition of the 'view of the criminal law.' indeed, the title-page gives that name to his performance. once more, however, he found it impossible to refrain from re-writing. the so-called second edition is more properly an abbreviated version of the 'history,' though the reports of trials still keep their place; and, as the whole forms only one moderately thick volume, it represents much less labour than its predecessors. it includes, however, the result of some later inquiries and of his judicial experience. he abandons, for example, an opinion which he had previously maintained in favour of a court of appeal in criminal cases, and is now satisfied with the existing system. in this shape it is virtually a handbook for students, forming an accompaniment to the 'digest' and the 'history.' it was the last of his works upon legal topics. meanwhile, if he wrote little, he was still reading a great variety of books, and was deeply interested in them. his letters are full of references to various authors, old and new. his criticisms have the primary merits of frankness and independence. he says exactly what he feels, not what the critics tell him that he ought to feel. no criticism can be really valuable which does not fulfil those conditions. i must admit, however, that a collection of his remarks would include a good many observations rather startling to believers in the conventional judgments. purely literary qualities impress him very little unless they are associated with some serious purpose. he shows the same sort of independence which enabled him to accept a solitary position in religious and political matters. in private letters, moreover, he does not think it necessary to insist upon the fact, which he would have fully admitted, that the great object of criticism is always the critic himself. a man who says that he can't see, generally proves that he is blind, not that there is no light. if only for this reason, i would not quote phrases which would sound unduly crude or even arrogant when taken as absolute judgments, instead of being, as they often are, confessions of indifference in the form of condemnations. when a great writer really appeals to him, he shows no want of enthusiasm. during the enforced rest in he studied spanish with great zeal; he calls it a 'glorious language,' and had the proverbial reward of being enabled to read 'don quixote' in the original. 'don quixote,' he says, had always attracted him, even in the translations, to a degree for which he cannot quite account. his explanation, however, is apparently adequate, and certainly characteristic. he sees in cervantes a man of noble and really chivalrous nature, who looks kindly upon the extravagance which caricatures his own qualities, but also sees clearly that the highest morality is that which is in conformity with plain reason and common sense. beneath the ridicule of the romances there is the strongest sympathy with all that is really noble. after spanish and cervantes, fitzjames turned to italian and dante. dante, too, roused his enthusiasm, and he observes, quaintly enough, that he means to be as familiar with the 'divina commedia' as he once was with bentham--two authors rarely brought into contact. dante conquered him the more effectually by entering over the ruins of milton. some years before he had pronounced the 'paradise lost' to be 'poor, contradictory, broken-down stuff, so far as the story goes.' he inferred that 'poetry was too slight an affair to grapple with such an awful subject.' he had, however, already read dante in cary's translation, and thereby recognised something far greater. when he came to the original he was profoundly impressed. it is strange, he says, that he has learnt for the first time at the age of sixty what a really great poem could be. poor milton's adaptation of pagan mythology to the hebrew legends, in order to expound puritan theology, results in a series of solecisms, which even the poet could not expect his readers to take seriously. the story, taken for history, certainly breaks down sufficiently to justify a severe remark. but dante's poem, embodying a consistent imagery into which was worked the whole contemporary philosophy and theology, is of absorbing interest even to those who are comparatively indifferent to its more purely literary merits. fitzjames does not make any detailed criticisms, but fittingly expresses his astonishment and admiration upon dante's revelation of a new world of imagination. i think that it is possible to show fitting reverence for dante without deposing milton from his much lower, though still very lofty place. but to one brought up in the old english traditions it was difficult to avoid the rather superfluous contrast. with the help of such studies and frequent visits to old friends, and minor literary tasks, fitzjames could find ample means of filling up any spaces left by his judicial duties. in spite of the disgust with which he regarded the political world, he was happy in his own little world; and his time passed in a peaceful round of satisfactory work. a few troublesome cases, those especially of which i have spoken, gave him occasional worry; but he could adhere to his principle of never fretting unnecessarily. but now was to begin the painful experience which comes to the survivors when the ranks begin to thin. he felt such losses deeply, if with little display of feeling. i find a remark in one of his letters which is, i think, characteristic. he says that his first feeling upon a severe blow had been something like shame at not suffering more. but in a few weeks the sense of loss had become deeper and stronger; and he had to remind himself of the necessity of conquering his depression. i have no need, i hope, to dwell upon the strength of his affections. i can never forget one occasion when his sympathies were deeply stirred; and when his sense of a certain awkwardness in expressing himself, a relic of his old prejudice against 'sentimentalism,' served only to bring out most pathetically the power of the emotions with which he was struggling. two severe losses marked the year . maine died on february . the old friendship had lost none of its warmth; and fitzjames had frequently enjoyed visits to the lodge at trinity hall, where maine, as master, presided over the christmas gatherings. fitzjames commemorated his friend by an article in the 'saturday review.[ ] in a warm eulogy, he praises the 'clearness and sobriety of maine's generalisations as well as their intrinsic probability,' and declares that the books were written 'as if by inspiration.' maine, he says, was equally brilliant as a journalist, as a statesman, and as a thinker. fitzjames speaks, though a little restrained by his usual reserve, of the 'brotherly intimacy of forty years, never interrupted by a passing cloud'; and ends by saying that there are 'persons to whom the world can never have the same aspect again as when maine lived in it.' it had been a great pleasure, i may add, that he had been able to appoint one of his friend's sons, who died soon after the father, to a clerkship of assize on the south wales circuit. in the autumn maine was followed by venables. fitzjames paid an annual visit to the house where venables lived with his brother at llysdinam, on the border of radnorshire. he often mentions in his letters the filial affection with which he regarded venables. in the previous year ( ) he had an opportunity of expressing this more directly than usual. one of venables' friends, mr. pember, had suggested that they might show their affection by presenting a stained glass window to a church which venables had built. fitzjames took up the plan warmly, and with the help of a few other friends carried out the scheme. when it was made known to venables, who of course was much gratified, fitzjames wrote to him a letter (august , ) of which i quote the important part. 'i found your letter on my return from the country this morning. you are quite right in thinking that i did say a great deal less than i meant. i feel shy in putting into quite plain words what i feel about you; but i do not like such things to prevent me from saying just once that i like you, honour you, and respect and admire you more than almost any man i ever knew. for nearer forty than thirty years you have been to me a sort of spiritual and intellectual uncle or elder brother, and my feelings about you have constantly grown and strengthened as my own experience of men and books has ripened and deepened and brought me into closer and closer sympathy with you and more complete conscious agreement with all your opinions and sentiments. i can recall none of your words and writings which i have not cordially approved of, and i shall always feel deeply grateful to mrs. lyster venables (venables' sister-in-law), for whom also i feel the warmest friendship, and to pember for suggesting to me a way of showing my feelings about you, which would never have occurred to a person so abundantly gifted with clumsy shyness as myself. however, i do not believe you will like me the worse for having the greatest possible difficulty in writing to any man such a letter as this.' the three lights of the window, representing moses, aaron, and joshua, were intended as portraits of venables and his two brothers. beneath was the inscription suggested by mr. pember, 'conditori hujus ecclesiæ amicissimi quidam.' fitzjames adds that he had felt 'a passing wish' to add his favourite words, 'be strong and of a good courage,' which, at his suggestion, dean stanley had taken as the text for a funeral sermon upon lord lawrence. i will only add that fitzjames had said in private letters substantially what he said to venables himself. on october , , he heard of his old friend's death, and again wrote an article of warm appreciation in the 'saturday review.' v. james kenneth stephen i have now to give a brief notice of events which had a saddening influence upon the later years. fitzjames, as i have remarked, had seen comparatively little of his elder children in their infancy. as they grew up, however, they had been fully admitted to his intimacy and treated on the footing of trusted and reasonable friends. the two younger daughters had been playthings in their infancy, and grew up in an atmosphere of warm domestic affection. just before venables' death fitzjames made a little tour in the west of ireland with his daughter rosamond, who has preserved a little account of it. i shall only say that it proves that she had a delightful travelling companion; and that his straightforward ways enabled him to be on the friendliest terms with the natives whom he encountered. among the frequent declarations of the happiness of his life, he constantly observes that one main condition was that his children had never given him a moment's uneasiness. two, indeed, had died in infancy; and frances, a very promising girl, had died of rheumatic fever july , . such troubles, however deeply felt, cannot permanently lessen the happiness of a healthy and energetic life. his three sons grew into manhood; they all became barristers, and had all acted at different times as his marshals. i shall say nothing of the survivors; but i must speak briefly of the one who died before his father. james kenneth stephen was born on february , .[ ] his second name commemorates his father's friendship for his godfather, kenneth macaulay. he was a healthy lad, big and strong, and soon showed much intellectual promise. he was at the school of mr. william browning at thorpe mandeville; and in won a foundation scholarship at eton, where he became the pupil of mr. oscar browning, the brother of his former master. he already gave promise of unusual physical strength, and of the good looks which in later years resulted from the singular combination of power and sweetness in his features. the head of his division was h. c. goodhart, afterwards professor of latin at the university of edinburgh.[ ] other boys in the division were george curzon and cecil spring rice. james was surpassed in scholarship by several of his friends, but enjoyed a high reputation for talent among his cleverest contemporaries. the school, it appears, was not quite so much absorbed by the worship of athletics as was sometimes imagined. james, however, rowed for two years in the boats, while his weight and strength made him especially formidable at the peculiar eton game of football 'at the wall.' the collegers, when supported by his prowess, had the rare glory of defeating the oppidans twice in succession. he was ever afterwards fond of dilating with humorous enthusiasm upon the merits of that game, and delighted in getting up an eleven of old etonians to play his successors in the school. he was, however, more remarkable for intellectual achievements. with mr. spring rice and another friend he wrote the 'etonian,' which lasted from may to august ; and several of the little poems which he then wrote were collected afterwards in his 'lapsus calami.'[ ] they are, of course, chiefly in the humorous vein, but they show sufficiently that eton was to him very different from what it had been to his father. he was a thoroughly loyal and even enthusiastic etonian; he satirises a caviller by putting into his mouth the abominable sentiment-- ye bigot spires, ye tory towers, that crown the watery lea, where grateful science still adores the aristocracy. his genuine feeling is given in the lines on 'my old school':-- and if sometimes i've laughed in my rhymes at eton, whose glory i never could jeopardise, yet i'd never a joy that i could not sweeten, or a sorrow i could not exorcise, by the thought of my school and the brood that's bred there, her bright boy faces and keen young life; and the manly stress of the hours that sped there, and the stirring pulse of her daily strife. to the last he cherished the memory of the school, and carefully maintained his connection with it. one odd incident occurred in , when james got up a 'constitutional opposition' to the intrusion of the revivalist preachers moody and sankey. his father wrote him a judicial letter of advice, approving his action so long as it was kept within due limits. he takes occasion to draw the moral that the whole power of such people depends upon the badness of their hearers' consciences. a man who has nothing to hide, who is 'just, benevolent, temperate and brave,' can 'look at things coolly and rate such people at their value.' those 'few words' (i.e. the names of the virtues) 'are the summary of all that is worth having in life. never forget any one of them for one moment, though you need not talk about them any more than you talk about your watch.' james had a marked influence in the college; he was a leading orator in the school debating societies; and his good sayings were as familiarly quoted as those of sydney smith or luttrell in the larger world. mr. cornish, who was his tutor for a time, tells me of the charm of james's talk with his elders, and says that, although he was careless on some matters upon which schoolmasters set a high value, he always showed power and originality. he won an english essay prize in , the history prize in and , the declamation prize in , and was one of the 'select' for the newcastle in . james went to king's with a scholarship in . he gave up classics and took to history. he took a first class (bracketed first in the class) in the historical tripos, but was only in the second class in the law tripos. besides prizes for college essays, he won the 'member's prize' for an essay upon bolingbroke in , and the whewell scholarship for international law in . he succeeded in every competition for which he really exerted himself; although, like his father, he was rather indifferent to the regular course of academical instruction. among his contemporaries, however, he enjoyed the kind of fame which is perhaps of still better augury for future success. king's college in his day, says mr. browning, was only emerging slowly from the effects of its close dependence upon eton. it had been in former days chiefly a little clique of older schoolboys. james helped much to change this, and distinctly raised the intellectual tone of the place. he was a well-known speaker at the union, of which he was president in . he was an 'apostle' too; and in may his father visited him in cambridge, and attended a meeting of the society where james read a paper. although, therefore, he scarcely won such a share of academical honours as might have been expected, james was regarded by his friends as the man of his time who was most definitely marked out for distinction in later years. his friends, indeed, were innumerable; and from all with whom i have communicated there is a unanimous testimony not only to his intellectual promise, but to his influence in promoting a high tone of thought and feeling. his father's letters frequently refer to him. james, he says, is a 'splendid young fellow'; he will surpass his father in due time, and be the fourth distinguished man of his name. james, he says once, using the epithet which in his mouth conveyed the highest praise, is a 'sturdier' fellow in many ways than i was, and writes better than i could at his age. one achievement of the son rather extorted than attracted his father's praise. he appeared in a greek play as ajax, a part for which his massive frame and generally noble appearance fitted him admirably. the father admitted that he had a certain dislike to a man's exhibiting himself personally, but was reconciled by observing that james acted more like a gentleman amusing himself than like a professional performer. how far these anticipations of success would ever have been fulfilled must remain uncertain. james may not have had his father's extraordinary vigour, but he undoubtedly had one quality in which his father was defective. he had a surprising facility in making friendly alliances with all sorts and conditions of men. his opinions partly resembled his father's. in politics he was of the conservative tendency, and he was certainly not of the orthodox persuasion in theology. but he was equally at ease with tories and home rulers, roman catholics and agnostics; and his cheery, cordial manners put him at once on the best understanding with everybody. there was something contagious in the enthusiasm of a young man who seemed so heartily to appreciate the simple joy of living. perhaps his weakness was to be a little too versatile in his sympathies and interests. after taking his degree, james spent some time in germany and france. he was elected to a fellowship at king's college in , and as a candidate wrote dissertations upon 'political science' and 'international law.'[ ] he was elected, it is said, as much upon the strength of his general ability as for any special performance. he was called to the bar in , and naturally employed his spare time upon journalism. he wrote a good deal for mr. greenwood in the 'st. james's gazette,' and had extraordinary facility as a writer. mr. reginald smith tells me how james once wrote a leading article in the train between paddington and maidenhead. many of the little poems which he contributed to periodicals were improvised. he was famous for wit and readiness as an after-dinner speaker; and showed an oratorical power in electioneering speeches which gave the highest hopes of parliamentary success. indeed, from all that i have heard, i think that his powers in this direction made the greatest impression upon his friends, and convinced them that if he could once obtain an opening, he would make a conspicuous mark in public life. at the end of he had an accident, the effects of which were far more serious than appeared at the time. he was staying at felixstowe, and while looking (december , ) at an engine employed in pumping water he received a terrible blow upon the head. he returned to his work before long, but it was noticed that for some time he seemed to have lost his usual ease in composition. he was supposed, however, to have recovered completely from the effects of the blow. in the early part of he astonished his friends by producing a small weekly paper called the 'reflector.' it appeared from january to april , . he received help from many friends, but wrote the chief part of it himself. the articles show the versatility of his interests, and include many thoughtful discussions of politics and politicians, besides excursions into literature. perhaps its most remarkable quality was not favourable to success. it was singularly candid and moderate in tone, and obviously the work of a thoughtful observer. probably the only chance of success for such a periodical would have been to make a scandal by personality or impropriety. to expect a commercial success from a paper which relied only upon being well written was chimerical, unless the author could have afforded to hold out in a financial sense for a much longer period. the expense gave a sufficient reason for discontinuing it; and it is now, i fear, to be inferred that the venture was one of the first signs of a want of intellectual balance. meanwhile, it seemed to indicate that james had literary tastes which would interfere with his devotion to the bar. some months later (june ) his father appointed him to the clerkship of assize on the south wales circuit, which had become vacant by the death of maine's son. he now took comparatively little interest in his profession and spoke of taking more exclusively to literature. clearer symptoms showed themselves before long of the disease caused by the accident. i have no wish to dwell upon that painful topic. it is necessary, however, to say that it gradually became manifest that he was suffering from a terrible disease. he had painful periods of excitement and depression. eccentricities of behaviour caused growing anxiety to his family; and especially to his father, whose own health was beginning to suffer from independent causes. i will only say that exquisitely painful as the position necessarily was to all who loved him, there was something strangely pathetic in his whole behaviour. it happened that i saw him very frequently at the time; and i had the best reasons for remarking that, under all the distressing incidents, the old most lovable nature remained absolutely unaffected. no one could be a more charming companion, not only to his contemporaries but to his elders and to children, for whose amusement he had a special gift. he would reason in the frankest and most good-humoured way about himself and his own affairs, and no excitement prevented him for a moment from being courteous and affectionate. he resolved at last to settle at cambridge in his own college in october ; resigning his clerkship at the same time. at cambridge he was known to everyone, and speedily made himself beloved both in the university and the town. he spoke at the union and gave lectures, which were generally admired. and here, too, in he published two little volumes of verse: 'lapsus calami' and 'quo musa tendis?' four editions of the first were published between april and august.[ ] it started with an address to calverley, most felicitous of minor poets of cambridge; and the most skilful practisers of the art thought that james had inherited a considerable share of his predecessor's gift. i, however, cannot criticise. no one can doubt that the playful verses and the touches of genuine feeling show a very marked literary talent, if not true poetic power. he seems, i may remark, to have had a special affinity for browning, whom he parodied in a way which really implied admiration. he took occasion to make a graceful apology in some verses upon browning's death.[ ] but to me the little volume and its successor speak more of the bright and affectionate nature which it indicates, and the delight, veiled by comic humour, in his friendships and in all the school and college associations endeared by his friends' society. the 'quo musa tendis?' composed chiefly of poems contributed to various papers in the interval, appeared in september . mr. oscar browning quotes some phrases from one of james's letters in november, which dwell with lively anticipation upon the coming term. for a time, in fact, he seemed to be in excellent spirits and enjoying his old pursuits and amusements. but a change in his condition soon occurred. he had to leave cambridge at the end of november; and he died on february , . many bright hopes were buried with him; but those who loved him best may find some solace in the thought that few men have been so surrounded by the affection of their fellows, or have had, in spite of the last sad troubles, so joyous or so blameless a life. james's college friends have put up a brass to his memory in king's college chapel. his family erected a fountain near anaverna. his father added a drinking-cup as his own special gift, and took the first draught from it october , , when about to take his final leave of the place. vi. conclusion what remains to be told of fitzjames's life shall be given as briefly as may be. the death of james had been preceded by the death of lord lytton, november , , which was felt deeply by the survivor. his own health gave fresh cause for anxiety during the latter part of , though happily he had little suffering at any time beyond some incidental inconvenience. on march , , he had an attack of illness during the assizes at exeter resembling that which he had previously had at derby. he was again ordered to rest for three months. sir a. clark allowed him to go on circuit in the summer. lord coleridge was his colleague, and fitzjames enjoyed his society. he afterwards went to anaverna, and, though unable to walk far, took much pleasure in long drives. meanwhile it began to be noticed that his mind was less powerful than it had hitherto been. it was an effort to him to collect his thoughts and conduct a case clearly. a competent observer stated as his general view that fitzjames was at intervals no longer what he had been--a remarkably strong judge--but that he could still discharge his duties in a way which would have caused no unfavourable comments had he been new to the work. remarks, however, began to be made in the press which may have been more or less exaggerated. i need only say that fitzjames himself was quite unconscious of any inability to do his duty, and for some time heard nothing of any comments. in march he was on circuit at exeter again with lord coleridge. it was thought right that certain public remarks should be brought under his notice. he immediately took the obviously right course. he consulted sir andrew clark, who advised resignation. fitzjames did his last work as judge at bristol, march to , and finally resigned on april , , when he took leave of his colleagues at an impressive meeting. the attorney-general, sir r. webster, expressed the feelings of the bar; and the final 'god bless you all,' with which he took leave of the members of his old profession, remains in the memory of his hearers. he was created a baronet in recognition of his services, and received the usual pension. i may here mention that he was elected a corresponding member of the 'institut de france' in ('académie des sciences morales et politiques'). the election, i believe, was due to m. de franqueville, the distinguished french jurist, with whom he had formed a warm friendship in later years. he also received the honorary degree of ll.d. from the university of edinburgh in , and was an honorary member of the american academy of arts and sciences. after his retirement his health fluctuated. he visited froude at salcombe in june, and was able to enjoy sailing. he afterwards went to homburg, and in the autumn was able to walk as well as drive about anaverna. he wrote an article or two for the 'nineteenth century,' and he afterwards amused himself by collecting the articles of which i have already spoken, published in three small volumes (in ) as 'horæ sabbaticæ.' on the whole, however, he was gradually declining. the intellect was becoming eclipsed, and he was less and less able to leave his chair. early in he became finally unable to walk up and down stairs, and in the summer it was decided not to go to anaverna. he was moved to red house park, ipswich, in may, where he remained to the end. it had the advantage of a pleasant garden, which he could enjoy during fine weather. during this period he still preserved his love of books, and was constantly either reading or listening to readers. his friends felt painfully that he was no longer quite with them in mind. yet it was touching to notice how scrupulously he tried, even when the effort had become painful, to receive visitors with all due courtesy, and still more to observe how his face lighted up with a tender smile whenever he received some little attention from those dearest to him. it is needless to say that of such loving care there was no lack. i shall only mention one trifling incident, which concerned me personally. i had been to see him at ipswich. he was chiefly employed with a book, and though he said a few words, i felt doubtful whether he fully recognised my presence. i was just stepping into a carriage on my departure when i became aware that he was following me to the door leaning upon his wife's arm. once more his face was beaming with the old hearty affection, and once more he grasped my hand with the old characteristic vigour, and begged me to give his love to my wife. it was our last greeting. i can say nothing of the intercourse with those still nearer to him. he had no serious suffering. he became weaker and died peacefully at ipswich, march , . he was buried at kensal green in the presence of a few friends, and laid by the side of his father and mother and the four children who had gone before him. one other grave is close by, the grave of one not allied to him by blood, but whom he loved with a brotherly affection that shall never be forgotten by one survivor. i have now told my story, and i leave reflections mainly to my readers. one thing i shall venture to say. in writing these pages i have occasionally felt regret--regret that so much power should have been used so lavishly as to disappoint the hopes of a long life, for i always looked to my brother as to a tower of strength, calculated to outlast such comparative weaklings as myself; and regret, too, that so much power was expended upon comparatively ephemeral objects or upon aims destined to fail of complete fulfilment. such regrets enable me to understand why the work which he did in india made so deep an impression upon his mind. and yet i feel that the regrets are unworthy of him. the cases are rare indeed where a man's abilities have been directed precisely into the right channel from early life. almost all men have to acknowledge that they have spent a great portion of their energy upon tasks which have led to nothing, or led only to experience of failure. a man who has succeeded in giving clear utterance to the thoughts that were in him need care comparatively little whether they have been concentrated in some great book or diffused through a number of miscellaneous articles. fitzjames's various labours came to a focus in his labours upon the criminal law. during his short stay in india he succeeded in actually achieving a great work; and i hope that, if his hopes of achieving similar results in england were disappointed, he will have successors who will find some help from the foundations which he laid. but, as he said of his father, the opportunity of directing your powers vigorously and in a worthy direction is its own reward. if to have taken advantage of such opportunities be the true test of success, whatever opinions may be held of you by others, and to whatever account they may turn your labours, fitzjames may be called eminently successful. it often appears to me, indeed, that a man does good less by his writings or by the mark which he may make upon public affairs than by simply being himself. the impression made upon his contemporaries by a man of strong and noble character is something which cannot be precisely estimated, but which we often feel to be invaluable. the best justification of biography in general is that it may strengthen and diffuse that impression. that, at any rate, is the spirit in which i have written this book. i have sought to show my brother as he was. little as he cared for popularity (and, indeed, he often rather rejected than courted it), i hope that there will not be wanting readers who will be attracted even by an indifference which is never too common. and there is one thing which, as i venture to believe, no one can deny, or deny to be worth considering. whatever may be thought of fitzjames's judgments of men and things, it must be granted that he may be called, in the emphatical and lofty sense of the word, a true man. in the dark and bewildering game of life he played his part with unfaltering courage and magnanimity. he was a man not only in masculine vigour of mind and body, but in the masculine strength of affection, which was animated and directed to work by strenuous moral convictions. if i have failed to show that, i have made a failure indeed; but i hope that i cannot have altogether failed to produce some likeness of a character so strongly marked and so well known to me from my earliest infancy. footnotes: [footnote : _history of criminal law_, i. .] [footnote : _history of criminal law_, i. - .] [footnote : fitzjames had given a slighter account of this curious subject in the _contemporary review_ for february .] [footnote : _history of criminal law_, ii. - .] [footnote : _ibid._ iii. .] [footnote : _history of criminal law_, ii. .] [footnote : _history of criminal law_, i. .] [footnote : fitzjames discussed this question for the last time in the _nineteenth century_ for october . recent changes had, he says, made the law hopelessly inconsistent; and he points out certain difficulties, though generally adhering to the view given above.] [footnote : _history of criminal law_, iii. .] [footnote : _nuncomar and impey_, i. .] [footnote : _nuncomar and impey_, ii. .] [footnote : _ibid._ ii. .] [footnote : _nuncomar and impey_, i. .] [footnote : _history of criminal law_, i. .] [footnote : fitzjames kept a journal for a short time at this period, which gives the facts, also noticed in his letters.] [footnote : _law reports, queen's bench division_, pp. - .] [footnote : _law reports, queen's bench division_, pp. - .] [footnote : the verses were published in the _st. james's gazette_ of dec. , .] [footnote : his letters appeared in the _times_ of march and and june , , and were afterwards collected.] [footnote : his letters appeared on january , , and , and on april and may , .] [footnote : february , ; reprinted in the biographical notice by sir m. e. grant duff, prefixed to the collection of maine's speeches and minutes in .] [footnote : i have used a notice in the _cambridge review_ of february , , and some notes by mr. oscar browning. i have also to thank several of james's friends for communications; especially mr. cornish, now vice-provost of eton college, mr. lowry, now an eton master, mr. reginald j. smith, q.c., and mr. h. f. wilson, of lincoln's inn.] [footnote : i deeply regret to say that professor goodhart died while these pages were going through the press. the schoolboy affection had been maintained to the end; and goodhart was one of james's most intimate and valued friends.] [footnote : mr. lowry mentions some other ephemeral writings, the _salt hill papers_ and the _sugar loaf papers_.] [footnote : the last was published at the end of .] [footnote : a bibliographical account of the changes in these editions is given in the fourth.] [footnote : a 'parodist's apology,' added in the later edition of the _lapsus_.] biblographical note the independent books published by sir j. f. stephen were as follows:-- . _essays by a barrister_ (reprinted from the _saturday review_). london, , smith, elder & co. vol. vo. (anonymous.) pp. . . _defence of the rev. rowland williams, d.d., in the arches court of canterbury_, by james fitzjames stephen, m.a., of the inner temple, barrister-at-law, recorder of newark-on-trent. london, , smith, elder & co. vol. vo. pp. xlviii. . . _a general view of the criminal law of england_, by james fitzjames stephen, m.a., of the inner temple, barrister-at-law, recorder of newark-on-trent. london and cambridge, , macmillan & co. vol. vo. pp. xii. . . _liberty, equality, fraternity_, by james fitzjames stephen, q.c. london, , smith, elder & co. pp. vi. . second edition of the same (with new preface and additional notes), . pp. xlix. . . _a digest of the law of evidence_, by james fitzjames stephen, q.c. london, , macmillan & co. pp. xlii. . reprinted with slight alterations, september , december ; with many alterations, . second edition, . third, . fourth, . . _a digest of the criminal law_ (_crimes and punishments_), by sir james fitzjames stephen, k.c.s.i., q.c. london, , macmillan & co. pp. lxxxii. . second edition, . third, . fourth, . fifth, . . _a digest of the law of criminal procedure in indictable offences_, by sir james fitzjames stephen, k.c.s.i., d.c.l., a judge of the high court of justice, queen's bench division, and herbert stephen, esq., ll.m., of the inner temple, barrister-at-law. london, macmillan &co. . pp. xvi. . . _a history of the criminal law of england_, by sir james fitzjames stephen, k.c.s.i., d.c.l., a judge of the high court of justice, queen's bench division. london, , macmillan & co. vols. vo. pp. xviii. ; ; . . _the story of nuncomar and the impeachment of sir elijah impey_, by sir james fitzjames stephen, k.c.s.i., one of the judges of the high court of justice, queen's bench division. london, , macmillan & co. vols. vo. pp. , . . _a general view of the criminal law of england_, by sir james fitzjames stephen, k.c.s.i., d.c.l., honorary fellow of trinity college, cambridge, a corresponding member of the french institute, a judge of the supreme court, queen's bench division. (second edition.) london, , macmillan & co. pp. xii. . . _horæ sabbaticæ, reprint of articles contributed to the saturday review_, by sir james fitzjames stephen, bart., k.c.s.i. london, , macmillan & co. first, second and third series. pp. , , . the following is a list of the chief contributions to quarterly and monthly periodicals. _cambridge essays_ . oct. . relation of novels to life. . july . characteristics of english criminal law. _national review_ . april . cambridge reform. . nov. . the public schools commission. _edinburgh review_ . july . cavallier. . july . novelists. . jan. . tom brown's schooldays. . april . buckle's 'civilisation.' . oct. . guy livingstone. . april . hodson. . oct. . jurisprudence. _cornhill magazine_ . sept. . luxury. . dec. . criminal law and the detection of crime. . april . the morality of advocacy. . may . dignity. . june and july . the study of history. . aug. . the dissolution of the union. . sept. . keeping up appearances. . nov. . national character. . dec. . competitive examinations. . jan. . liberalism. . feb. . commissions of lunacy. . march . gentlemen. . may . superstition. . june . courts martial. . july . journalism. . sept. . the state trials. . nov. . circumstantial evidence. . jan. . society. . feb. . the punishment of convicts. . april . oaths. . june . spiritualism. . july . commonplaces on england. . july . professional etiquette. . sept. . anti-respectability. . oct. . a letter to a saturday reviewer. . dec. . marriage settlements. . jan. . money and money's worth. . june . the church as a profession. . july . sentimentalism. . dec. . the bars of france and england. . jan. . the law of libel. _fraser's magazine_ (a few earlier articles had appeared in this magazine.) . dec. . women and scepticism. . jan. . japan. . feb. . theodore parker. . april . mr. thackeray. . may . the privy council. . june . capital punishment. . sept. . newman's 'apologia.' . nov. . dr. pusey and the court of appeal. . dec. . kaye's 'indian mutiny.' . feb. . law of the church of england. . march . merivale's 'conversion of the roman empire.' . june and july . english ultramontanism. . nov. . mr. lecky's 'rationalism.' . feb. . capital punishment. . june and july . 'ecce homo.' . nov. . voltaire. . nov. . religious controversy. . jan. . certitude in religious assent. . july . froissart's 'chronicles.' _fortnightly review_ . dec. . codification in india and england. . march . a penal code. . march . blasphemy and seditious libel. _contemporary review_ . dec. and march . parliamentary government. . march . cæsarism and ultramontanism. . may . cæsarism and ultramontanism: a rejoinder. . dec. . necessary truth. . feb. . the law of england as to the expression of religious opinion. _nineteenth century_ . april . mr. gladstone and sir g. c. lewis on authority. . may . morality and religious belief. . sept. . improvement of the law by private enterprise. . dec. . suggestions as to the reform of the criminal law. . jan. . the criminal code ( ). . jan. . the high court of justice. . april . a sketch of the criminal law. . oct. . india; the foundations of government. . june . the unknowable and the unknown. . may . variations in the punishment of crime. . oct. . prisoners as witnesses. . dec. . the suppression of boycotting. . oct. . mr. mivart's 'modern catholicism.' . jan. . a rejoinder to mr. mivart. . april and may . max müller's 'science of thought.' . june . the opium resolution. . july . gambling and the law. index aberdare, lord, aberdeen in - , achill, sir j. f. stephen at, adams, professor, adams, mr. henry, _n_ addison, joseph, afghanistan, lord lytton's policy in, and the subjugation of its tribes, - agency committee, organised by george stephen, albert, prince consort, allen, william, america, the civil war in, american academy of arts and sciences, sir j. f. stephen an honorary member of, anaverna house, , - , - annet, peter, last deist imprisoned for blasphemous libel, 'anti-slavery reporter,' the, 'apostles,' the, at cambridge, - , , aquinas, thomas, , argyll, duke of, arnold, matthew, arnold, rev. dr., , ashton, john, jacobite conspirator, ashton, miss. _see_ venn, rev. richard ashwell, r. _v._, athenæum club, the, auerbach's 'auf der höhe,' austen, jane, austerlitz, austin, charles, austin, john, as a writer compared with sir j. stephen, ; john and mrs. austin's associations with sir j. stephen, , ; influence of austin's works on sir j. f. stephen, , - , , , , ; death, austin, miss lucy. _see_ gordon, lady duff bacon murder trial, - , bain, professor, balmat, auguste, balston, mr., , , balzac, honoré, barkley, mr. d. g., barry, mr. justice, bate, parson. _see_ dudley, sir henry bate bathurst, earl, and sir j. stephen, batten, rev. ellis, master at harrow, his wife (miss caroline venn) and daughter, _n._, , baxter and his writings, sir j. stephen on, , , beaconsfield, lord, , , beattie, dr., beaumont, w. j., bellingham, henry, murderer of mr. perceval, bentham, jeremy, sir j. f. stephen and his writings, , , , - , , , , - , , , , , , , , , , , , , , , ; his efforts on behalf of codification, , bethell sir richard. _see_ westbury, lord blackburn, lord, , blackstone, mr. justice, , , blakesley, canon, blomfield, bishop, blücher, field-marshal, board of trade, sir j. stephen's connection with the, , bolingbroke, james kenneth stephen's essay on, bonney, professor, _n_ bowen, lord justice, , , brahmos sect (india), - bramwell, lord, , brand, lieut., his share in the execution of gordon, bright, john, , , , , brontë, charlotte, brougham, lord, , , , _n_ brown, mary. _see_ stephen, mr. james browning, mr. oscar, , , browning, robert, , browning, mr. william, bryce, mr. james, _n_ buckle, t. h., , buller, mr. charles, , bunyan, john, burke, edmund, , butler, bishop, sir james stephen and his 'analogy,' ; sir j. f. stephen and butler's works, , , butler, mr. montague, _n_ buxton, mr. charles, his connection with the jamaica committee, _n_ buxtn, sir thomas fowell, his efforts to suppress the slave trade, byron, lord, , cairns, lord, calcutta, work and life at, , , calder, mrs., daughter of mr. james stephen, calverley, c. s., 'cambridge essays,' , , , , 'cambridge review,' the, _n_ cambridge university, john venn at, ; connection of sir j. stephen with, ; sir j. f stephen at, - ; the 'apostles,' ; j. k. stephen at, - , - cameron, c. h., his share in codifying indian penal laws, campbell's poems, , campbell, mr. j. dykes, _n_ campbell, lord, chief justice, , , campbell, sir george, canning, lord, capital punishment, , carlyle, jane welsh, carlyle, thomas, , , ; his political and philosophic writings, , , , , , , , , , ; friendship with sir j. f. stephen, - , , , , , , , , caroline, queen, cashmire gate, the, castlereagh, lord, cavagnari, major, , cavaignac and the french revolution of , cavallier, , cayley, professor, cervantes, chamberlain, mr. joseph, , charlemagne, charles ii., criminal law in his day charlotte, princess, chenery, thomas, editor of the 'times,' chillingworth, william, chitty, mr. justice, 'christian observer,' - , christie, w. d., _n_ church missionary society, , 'clapham sect,' the, _n_, - , - , , , clark, sir andrew, , , , clarke, mrs. _see_ stephen, mr. james cleasby, baron, , clifford, professor w. k., clifton _v._ ridsdale, club 'the,' cobden, richard, , cockburn, sir alexander, lord chief justice, his charge regarding the alleged murder of gordon, ; and the homicide bill, ; on the criminal code bill, cockerell, mr., _n_, codification, in india, , , , , , ; in england, , , , , , - , - , , , , colenso, bishop, coleridge, mr. arthur, , , , , - coleridge, herbert, , coleridge, lord, chief justice, , , , , , , , , , , , , coleridge, samuel taylor, , , , , , colonial department and office, , - colquhoun's 'wilberforce' cited, _n_ comte, auguste, congreve, mr., 'contemporary review,' the, _n_, , _n_, contracts, sir j. f. stephen and the law of, - , , conybeare and philips, their work on geology, cited, _n_ cook, john douglas, , , , copyright commission, the, 'cornhill magazine,' the, _n_, , , , - , _n_, , , , , cornish, mr., vice-provost of eton, _n_, cosmopolitan club, the, , courts-martial, sir j. f. stephen on, cowie, mr., advocate-general, cowper, the poet, , cremation, criminal law, ; 'general view' of, - , , , , , ; 'digest' of, - , , , ; the criminal code, , , , ; 'history' of, - , , ; court of criminal appeal, croker, john wilson, cumming, dr., and the 'saturday review,' cunningham, sir henry stewart, , , , , , _n_, , _n_, , , , cunningham, rev. j. w., - curzon, hon. george, cust, mr. robert, dalgairns, father, dalhousie, lord, dante, , darwinism, , , davies, rev. j. llewelyn, , , , , delhi, , ; the great durbar at ( ), de maistre, , denison, archdeacon, derby, earl of (edward geoffrey), , , derby, earl of (edward henry), descartes, de vere, aubrey, dicey, professor albert venn, mr. edward, mr. frank, and mr. henry, dicey, mr. thomas edward, - , , , dickens, charles, , , , , , dickens, mr., q.c., dove, trial of, dowden, professor, _n_ dromquina, ireland, , , , dudley, sir henry bate ('parson' bate), duff, james grant, duff, sir mountstuart elphinstone grant, and lady, , , , , , , , , , _n_ dundee, candidature for, - , 'ecce homo,' review of, , ecclesiastical cases, - edinburgh, duke of (prince alfred), 'edinburgh review,' the, , , , , , , _n_, , , , education commission ( ), - , , egerton, lady, , , , , , egerton, sir robert, eldon, earl of, elliot, gilbert (earl minto), elliott, miss charlotte, , elliott, e. b., elliott, rev. henry venn, , ellis, mr. leslie, , erie, lord chief justice, 'essays and reviews,' , , 'essays by a barrister,' _n_, _n_, ; character of its contents, - , estlin, john prior, eton, - , - 'etonian,' the, evidence, digest of the law of, evidence act (india) and bill (england), , , , , , extradition commission, the, eyre, governor, - , fane, julian, , farish, professor william, _n_, , fawcett, professor henry, field, lord, , , , fielding, sir john, flowers, mr. f., forbes, miss mary. _see_ stephen, mr. william forster, the rt. hon. w. e., 'fortnightly review,' the, _n_, , francis, sir philip, francis, miss elizabeth, franqueville, m. de, 'fraser's magazine,' , , , , , , , , , , freeman, professor e. a., , freshfield, messrs., froude, james anthony, _n_, , , , , , , , , , , fuller, mr., galway, ireland, garratt, rev. samuel, _n_ garratt, mr. w. a., , , george iii., criminal law in his day, gibbet law of halifax, gibbon, edward, , , , gibbs, mr. frederick waymouth, , , , , , giffard, mr. hardinge (afterwards lord halsbury), gisborne, thomas, , gladstone, mr., his work on church and state, ; irish church act and irish university bill, , ; connection with the metaphysical society, , , ; recent irish and indian policies, , glenelg, lord, goodhart, professor, gordon, adam lindsay, gordon, lady duff (née austin), gordon, lord george, gordon, hanged for his share in the jamaica insurrection, - gorham case, the, gower, lord f. l., grace, miss. _see_ stephen, rev. william graham, sir james, and the slave trade, _n_ gray, the poet, ; his 'elegy,' great grimsby riots, green, t. h., greenwood, mr. frederick, editor of the 'pall mall gazette 'and the 'st. james's gazette,' - , , , , greg, william rathbone, , , greville, charles, the diarist, grey, earl. _see_ howick, lord guest, rev. b., - gurney, mr. russell, recorder of london, , , , , , , , , , , haileybury, sir j. stephen at, hallam, the historian, , hallam, henry fitzmaurice, , hamilton, the logician, anecdote concerning, hamilton, sir william, introduces german philosophy into england, ; mill's examination of his philosophy, , hampden, bishop, hannen, mr. (afterwards lord), counsel for general nelson and lieut. brand, harcourt, sir william ( historicus'), contemporary of sir j. f. stephen at cambridge, , , ; connection with the 'saturday review,' , , , , harrison, mr. frederic, his controversies with sir j. f. stephen and connection with the metaphysical society, , , , , , harwich, candidature for, , hastings, warren, sir j. f. stephen's interest in the study of his works and impeachment, , , , , ; character of lord macaulay's article on, - hazlitt, as an essayist, helps, sir arthur, an 'apostle' at cambridge, ; as an essayist, henry, sir thomas, hey, rev. john, hick, mr., m.p., higgins, matthew james ('jacob omnium'), his connection with the 'pall mall gazette,' hildebrand, sir j. stephen on, hill, rowland, and the post office, himalayas, the, sir j. f. stephen's description of, hindoo laws, remarriage of widows legalised, ; alterations in the oaths and wills enactments, . _see also_ india 'historicus.' _see_ harcourt, sir william 'history 'of the criminal law. _see_ criminal law hobbes, thomas, the study of his philosophy by sir j. f. stephen and its influence on his character, , , , , , , , , hobhouse, lord, , hodson, archdeacon, ; indian reminiscences of hodson of hodson's horse, holker, sir john, holland, canon, holland house, society gatherings at, home rule, sir j. f. stephen's objections to, - homer, study of, homicide bill, , , , hooghly, its aspect during state ceremonial after lord mayo's murder, , hooker, , 'horæ sabbaticæ,' , , , hort, professor, , howick, lord (afterwards earl grey), and the slave trade, hughes, tom (judge), his 'tom brown's school days,' ; mission work in the east end, hughes _v._ edwards, hume, david, hunter, sir w. w., his 'life of the earl of mayo,' _n_, , - , hutton, mr. r. h., , huxley, professor, , hyde park riots, the, ilbert, sir c. p., on sir j. f. stephen's legislative work in india, _n_, , , ; advocates the collection of antiquarian laws, ; his 'indian' bill proposals criticised by sir j. f. stephen, impey, sir elijah, sir j. f. stephen's work on his 'trial of nuncomar,' , , ; injustice of lord macaulay's treatment of impey, india, sir j. f. stephen on james grant duff's administration of, ; on british rule in, , ; legal codes in, ; sir j. f. stephen's interest in, ; his appointment as member of council, ; account of his duties and of the indian civil servants, , ; personal experiences there, - ; the india company and the passage of the penal code, - ; constitution of the legislative council, ; the executive, ; the legislative department and its functions, ; the committee, , , ; process of preparing legislative measures, , ; the indian and english systems compared, , ; varied character of its regulations, laws, and executive orders, and consequent irregularities, - ; british administration of the punjab and the introduction of codes, - ; the difficulties of our position in india, ; enumeration of legislative reforms in india, - ; criticisms and appreciations of sir j. f. stephen's work in india, - ; summary of sir j. f. stephen's views on the principles of indian legislation, - ; his minute on the administration of justice in india, - ; the murder of lord mayo in, - ; riot and excesses of kookas sect, , ; roman analogy of british rule, ; sir j. f. stephen's last days in, ; educational value of india to him, ; his codification of the law in, ; evidence act, ; legislation in, compared with england, ; contemplated work on, ; his acts relating to consolidation, , , , ; correspondence with lord lytton concerning indian affairs, - , ; controversy with john bright, lord lawrence, and other statesmen on indian policy, - ; proclamation of queen victoria as empress of, ; proposed moral text-book for india, ; sir j. f. stephen's study of parliamentary papers concerning, ; his views on the 'ilbert bill,' , ; work in, . _see also_ punjab indian law commission, its share in indian law reform, , , , , , , indian mutiny, the, sir j. f. stephen's article on, ; and legislation in india, inns of court, sir j. f. stephen professor of common law at, insanity and crime, , institut de france, sir j. f. stephen elected a corresponding member of, international law, austinian theory regarding, ipswich, sir j. f. stephen's residence and death at, ireland, sir j. f. stephen in, , , - , , - . _see also_ home rule irish church, the, , irish university bill, the, defeat of, italian, study of, , , , jackson, rev. william, ; letter on james stephen, jacob, general, his 'progress of being,' sir j. f. stephen's review of, jacob omnium. _see_ higgins, matthew james jamaica, slave insurrection in ( ), ; revolt in ( ), and its suppression, - james, mr. edward, q.c., james, sir henry, appointed solicitor-general, jeffrey, lord, his conduct of the 'edinburgh review,' jeffreys, judge, , jelf, dr., the theologian, jenkins, mr. edward, author of 'ginx's baby,' and the dundee election, - , jenkins _v._ cook, jerrold, douglas, jessel, sir george, solicitor-general, jeune, sir francis, , johnson, dr., and sir j. f. stephen: a comparison, , ; character of his essays, jowett, rev. h., tutor of sir j. stephen, ; and of the rev. j. w. cunningham, jowett, professor joseph, an evangelical, jowett, professor william, his writings on theology, , judicature act ( ), the, jungfrau, ascent of the, junius' letters, , jurisprudence, sir j. f. stephen on, , jury, the history of trial by, justinian's 'institutes,' kane, e. k., kant, , kelly, chief baron, , kelvin, lord, kenilworth castle, kenmare river, the, ireland, , kensington, the stephens at, , , kent, chancellor, on serjeant stephen's first book, killmakalogue harbour, king, miss catherine. _see_ venn, rev. john king's college, london, , kingsley, charles, kitchin, dean, , knight, rev. william, his work on the rev. henry venn, d.d., knowles, mr. james, , kooka sect, their religious fanaticisms and barbarities, lahore, lake, dean, education commissioner ( ), lamb, charles, as an essayist, lansdowne, lord, his house in ireland, 'lapsus calami,' james kenneth stephen's, lardner, his work on 'gospel history' las casas, and his account of napoleon at st. helena, , law, william, effect of his 'serious call' on rev. richard venn, law, definition of, , ; considered in relation to mill's theory, - ; its connection with morality, - 'law magazine,' the, 'law quarterly review,' sir c. p. ilbert's article in, on sir j. f. stephen, _n_ lawrence, henry, assists in the administration of the punjab, lawrence, john (lord), his legislative reforms in india and administration of the punjab, , , ; journalistic encounters and friendship with sir j. f. stephen, , ; text of dean stanley's sermon on, lecky, w. e. h., his 'rationalism,' lewis, sir george cornewall, ; his 'authority 'discussed, 'liberty, equality, fraternity,' , ; account of its inception, character of the work, - , , ; effect on the dundee election, 'liberty of the savoy,' lightfoot, dr., , lilburne, john, lincoln, general, lipski, the murderer, , literary society, the, liveing, dr. robert, liverpool, invitation to contest, locke, , , 'london review,' the, louis philippe, lowe, mr. robert (lord sherbrooke), on public-school life at winchester, ; and the revised educational code, ; and the evidence bill, lowry, mr., of eton, _n_, _n_ loyola, ignatius, sir j. stephen on, , lush, mr. justice, his trial of the tichborne case, ; criminal law commissioner, lushington, mr. franklin, - , , , luther, sir j. stephen on, luttrell, lyall, sir alfred, his works and character, , , lyndhurst, lord, and serjeant stephen, lytton, earl of, governor-general of india, his correspondence and friendship with sir j. f. stephen, , , , , , , , , , ; characteristics of, - ; confidential nature of their correspondence, ; sir j. f. stephen on lord lytton's indian policy, - , ; ambassador at paris, ; his death, macaulay, kenneth, leader of the midland circuit, , , , ; godfather of james kenneth stephen, macaulay, thomas babington (lord), as a writer compared with sir j. stephen, , ; on the meetings at holland house, ; his patriotism, ; his literary style, , , ; sir j. f. stephen's obituary notice of, ; on church and state, ; impression of his indian essays on sir j. f. stephen, ; advised sir j. stephen to accept indian appointment, ; his share in preparing the indian code, , ; personal claims of impey on macaulay, ; character of his essay on hastings, ; macaulay's imaginative process contrasted with sir j. f. stephen's judicial method, - ; examples of the former's audacious rhetoric, , ; effect of sir j. f. stephen's regard for macaulay on his criticisms, , macaulay, zachary, his share in the suppression of slavery, , , ; as a philanthropist, mackintosh, 'macmillan's magazine,' madras, its administrative regulations anterior to , ; the famine in, maine, sir henry sumner, his career at cambridge and his friendship with sir j. f. stephen, , , , , , , , , ; his journalistic work on the 'morning chronicle,' 'cambridge essays,' 'saturday review,' and 'st. james's gazette,' - , ; stephen's review and criticisms of his 'ancient law,' , , ; his work as legal member of the council of india, , , , , , - , ; revises stephen's draft scheme for consolidating the acts relating to india, ; stephen's and maine's interest in indian matters, , , ; his death, and biographical notice by stephen, , ; the latter appoints maine's son clerk of assize, , maitland, professor, on sir j. f. stephen's writings, , , manchester school, the, , , manning, cardinal, , , , , , mansel, dean, introduces german philosophy into england, ; sir j. f. stephen on his 'metaphysics,' mansel, mr., assists lord lawrence in the administration of the punjab, mansfield, lord, his relations with james stephen, - 'maria,' , , marriage, mill's theories concerning, , martial law, sir j. f. stephen on, martineau, dr., his connection with the metaphysical society, martyn, henry, matthews, mr. henry, home secretary, and the lipski trial, , maule, mr., member of the jamaica commission, maurice, professor f. d., of king's college, london, his influence on sir j. f. stephen, , , , ; formerly an 'apostle' at cambridge, ; his influence at cambridge, ; his style of preaching, , mauritius, the, sir george stephen and the slave trade in, max müller, professor, his 'science of thought' reviewed by sir j. f. stephen, maxwell, clerk, an 'apostle' at cambridge, ; anecdote concerning, maybrick, mrs., her trial, mayo, earl of, sir j. f. stephen's contribution to his life, _n_, , - , ; his hunting parties in india, ; sir j. f. stephen on his character and work in india ; account of his murder, ; and the state ceremonial in calcutta, - ; incident connected with the trial of his murderer, , ; legislative work in india, melbourne, lord, on sir j. stephen at the colonial office, merivale, charles, an 'apostle' at cambridge, merivale, mr. herman, and the consolidation of acts relating to india, metaphysical society, the, its inception, ; its first members, ; sir j. f. stephen's connection with and contributions to, - metaphysics, sir j. f. stephen and, , miall, edward, education commissioner ( ), middleton, conyers, his quarrel with the rev. richard venn, , mill, james, his influence at cambridge, ; his advocacy of codification, , ; his share in the suppression of slavery, ; as a political economist, ; allusion to, ; the effect of his writings on macaulay, ; mill on criminal law, mill, john stuart, sir james stephen's acquaintance with, , ; on hell and god, ; sir j. f. stephen on his 'political economy,' ; influence at cambridge, , ; and on sir j. f. stephen, , , , , , , , ; chairman of the jamaica committee, - ; estrangement from sir j. f. stephen, , ; his theories concerning liberty, , - ; his controversy with w. g. ward, ; his indifference to evolution theories, millar, mr. a. h., his account of the dundee election, _n_ milner, miss sibella. _see_ stephen, mr. james milner, mr., of poole, his kindness to james stephen, milner, mr. george, , milner, mr. isaac, evangelical leader at cambridge, , , milner, mr. joseph, educates rev. john venn, milner, mr. william, merchant, his bankruptcy, ; marries miss elizabeth stephen, _n_ milnes, monckton, an 'apostle' at cambridge, , milton, john, , , missionaries in india, mister, hanged for attempted murder mivart, mr. st. george, mohammedanism, moltke, field-marshal von, monteagle, lord, on sir j. stephen as a talker, moody and sankey, james kenneth stephen's 'constitutional' opposition to, more, sir thomas, morison, miss mary. _see_ stephen, serjeant morison, mr. william maxwell, _n_ morley, mr. john, connection with the 'saturday review,' ; invites sir f. j. stephen to write 'carlyle' for his series, ; replies to stephen's criticisms of mill, , 'morning chronicle,' the, - 'morning herald,' the, 'morning post,' the, master james stephen's connection with, morton, mr., village postmaster at ravensdale, mourne mountains, mozley, rev. t., _n_ munro, professor, murder, curious punishment for, anterior to , napier, macvey, his 'correspondence' cited, _n_, napoleon, sir f. j. stephen on his captivity, , 'national review,' the, , navigation act, its provisions enforced by nelson, nazim, nawab, nelson, general, his share in the execution of gordon, - nelson, horatio, captain of the 'boreas,' enforces navigation act, nettlefold and chamberlain arbitration case, , newark, sir j. f. stephen, recorder of, , newcastle, duke of, his interest in j. d. cook, , ; chairman of royal commission on education ( ), newman, cardinal, review of his 'apologia' by sir j. f. stephen, , , ; their acquaintance and discussions on theology, - , ; newman's ascetic and monastic views, , ; his 'grammar of assent,' newman's rooms, oxford, newton, john, 'nineteenth century,' the, its account of the metaphysical society, ; contributions to, , , , , _n_, , , , north, christopher, wrestling bout with ritson, 'northampton mercury,' the, northbrook, lord, north-western provinces (india), executive orders for, , novels, , , , , nuccoll, mrs., daughter of mr. james stephen, 'nuncomar and impey,' sir j. f. stephen's book on, - , o'connell, daniel, the agitator, , old bailey, professional experiences at the, , orange, prince of, ordnance department commission, sir j. f. stephen chairman of, , oudh, executive orders applicable to, oxford, newman's meetings at, 'oxford essays,' oxford movement, sir j. stephen and the, , oxford university confers the d.c.l. degree on sir j. f. stephen, paine, thos., his 'age of reason,' sir j. f. stephen's impressions concerning, ; allusion to, ; and the 'rights of man,' paley, william, his utilitarian tendencies, ; sir j. f. stephen on his writings and teachings, , , , , , 'pall mall gazette,' the, sir j. f. stephen's connection with, and other particulars concerning, , _n_, - , , , , , , , , palmer, trial of, , palmerston, lord, article on his death, - ; effect of his death on parties, pantheism, newman and, parke, baron, parker, theodore, , parknasilla, residence at, parliamentary government, sir j. f. stephen on, , , pascal, pattison, mark, on the meetings in newman's rooms at oxford, ; his connection with the 'saturday review,' ; his share in the education commission ( ), ; his connection with the metaphysical society, peacock, sir barnes, chief justice of calcutta, ; his share in indian law reforms, , pearson, charles henry, peel, sir robert, connection of his followers with the 'morning chronicle,' ; his reform of the criminal law, pember, mr., , perceval, mr. spencer, his orders in council, ; murdered, perry, sir erskine, and consolidation of acts relating to india, 'peter simple,' 'pilgrim's progress,' the, pitt, wilberforce's antagonism toward, place, francis, and zachary macaulay, plato, , , politics, sir j. f. stephen's views on and interest in, , - , , , , - , , , - pollock, chief baron, description of, ; appoints stephen revising barrister, ; arbitrator in the nettlefold and chamberlain case, pollock, sir frederick, on sir j. f. stephen's 'history of the criminal law,' pontius pilate, poole, james stephen's enterprise at, pope, , popish plots, sir j. f. stephen's account of, positivism, sir. j. f. stephen's views on, , - , , price and the 'rights of man,' price, william, the 'druid,' prize appeal court of the privy council, the, james stephen's connection with, protestantism, newman on, ; and rationalism, , 'public advertiser,' the, james stephen's contributions to, public schools commission, the, punishment considered in its relation to revenge, , ; and to mill's theory, , punjab, executive orders applicable to the, ; administration of the province by lord lawrence, , ; its 'civil code,' ; regulations relating to the punjab consolidated, ; land revenue act, - , ; criminal tribes act and measure repressing kidnapping of children, , , purbeck island, james stephen shipwrecked on, purgatory, the doctrine of, puritanism, sir j. f. stephen and, , , 'quo musa tendis,' james kenneth stephen's, raleigh, allusion to, rapin's history, master james stephen's early acquaintance with, rationalism, sir j. stephen and, ; its exponents combine with protestants against sacerdotalism, ; sir j. f. stephen and, ravenscroft, miss. _see_ stephen, sir george reade, charles, sir j. f. stephen on his 'never too late to mend,' 'reasoner,' the, attacked by the 'saturday review,' 'record,' the, criticised by the 'saturday review,' 'reflector,' the, james kenneth stephen's paper, , reform bill of , sir j. f. stephen on the, , renan, his writings, , ricardo as a political economist, , , richardson, mr. joseph, of the 'morning post,' ritson, the wrestler, roberts's 'hannah more,' _n_ robespierre, sir j. f. stephen's reflections on, robinson, crabb, on james stephen, 'robinson crusoe,' , , rogers, rev. william, on the education commission ( ), - roman catholicism, sir george stephen and, ; sir j. stephen and, - ; sir j. f. stephen and, , , - , - , , , roman rule in syria, an analogy, ; in palestine, romilly, lord, and sir j. stephen, ; his efforts to reform the criminal law, ; retires from mastership of the rolls, 'rotuli parliamentorum,' roy, ram mohun, founder of the brahmos sect, rugby school, visit to, ; contrasted with eton, rundle, rev. thomas, and the rev. richard venn, ruskin, mr. john, an expositor of carlyle's socialistic theories, ; his connection with the metaphysical society, russell, lord arthur, 'russell on crimes,' russia, bentham and codification in, ; and the eastern question, , ryan, sir edward, his position in the privy council, _n_ st. christopher's, west indies, members of the stephen family at, , , , , 'st. james's gazette,' the, particulars concerning, _n_, , sainte-beuve, the writings of, , salisbury, sir j. f. stephen at, salisbury, marquis of, , , , sandars, thomas collett, , , 'sandford and merton,' 'saturday review,' the, sir j. f. stephen's connection with, , , , - , , , , ; its first editor, , , ; some of its noted contributors, - ; characteristics of the journal, , , ; its arraignment of popular idols and contemporary journals, - , - ; secession from, ; character of its 'middles,' savigny, john austin and, schiller, scott, dr., at cambridge, scott, sir walter, ; his works quoted, , , ; literary character of his 'history,' scroggs, sir william, , seditious libels, , seeley, professor, and his 'ecce homo,' , selborne, lord, ; his connection with the metaphysical society, selden society, the, its objects, senior, nassau, friendship with sir j. stephen, ; education commissioner ( ), - sermon on the mount, the, , , _n_ shakespeare's 'henry the fifth,' sharpe, granville, sir j. stephen's acquaintance with, shelley, views on his essays, sherbrooke, lord. _see_ lowe, mr. robert sheridan, richard brinsley, , sheridan, mr., innkeeper at achill, sidgwick, professor, on sir j. f. stephen and the 'apostles,' ; his connection with the metaphysical society, , simeon, rev. charles, founder of the 'sims,' , simla, sir j. f. stephen at, , , , , singh, ram, of the kookas sect, , , slave trade, the stephen family and the , - , , , , smart, christopher, the crazy poet, , , smith, adam, his political economy, smith, mr. bullen, his share in the indian contract act, smith, mr. george, sir j. f. stephen's connection with, , , , smith, mr. goldwin, connection with the 'saturday review,' ; education commissioner ( ), smith, henry john stephen (mathematician), , ; memoir, n; estimate of his character and powers, ; stephen's account of their relations, smith, mr. reginald j., _n_, smith, sydney, and the 'clapham sect,' _n_; as a clergyman, ; and the church of england, smith, mr. w. h., appoints sir. j. f. stephen chairman of ordnance commission, , smith, elder & co., messrs., publishers of the 'cornhill magazine,' smyth, professor william, death of, sneem harbour, snow, captain parker, arctic explorer, , , 'social science association,' the, sir j. f. stephen's address to, _n_ socialism, sir j. f. stephen and, , , socinianism, newman and, sortaine, mr., anti-papist, southey, robert, his literary labours, spain, bentham and codification in, spanish, sir j. f. stephen's study of the language, , spanish inquisition, , , spedding, james, friendship with sir j. stephen, ; and j. f. stephen, ; an 'apostle' at cambridge, , spencer, mr. herbert, , , spiritual courts, history of the, spring rice, mr. cecil, and the 'etonian,' stafford election petition, stanley, dean, ; his sermon on lord lawrence, star chamber, the, state trials, , , , staubbach, the, steele, sir richard, his quarrel with addison, stent, mr., mrs., miss anne and thomas, , , . _see also_ stephen, mr. james stephen, mr. alexander, stephen, sir alexander condie, k.c.m.g., _n_ stephen, sir alfred, , ; his pamphlets, _n_; descendants, stephen, miss anne mary. _see_ dicey, mr. thomas stephen, miss caroline emelia, _n_, stephen, miss elizabeth. _see_ milner, mr. william stephen, miss frances wilberforce, , stephen, sir george, 'life' of his father james stephen, _n_; characteristics of, ; his career and writings, , , ; marries miss ravenscroft, _n_; his children, _n_; his death, stephen, miss hannah. _see_ farish, professor william stephen, henry john, s. l., his life, writings, and family, , , , stephen sir herbert, 'note' on sir j. f. stephen's life in ireland, - stephen, mr. herbert venn, his birth, , ; his army experiences, ; discussions and relations with j. f. stephen, ; tour to constantinople and death at dresden, stephen, mr. james, of ardenbraught, _n_ stephen, mr. james, tenant farmer, and family, stephen, mr. james, writer on imprisonment for debt, ; early history, ; adventures on purbeck island, , ; marriage to miss sibella milner, , , ; commercial failure, ; manager of sir john webbe's estate, ; imprisoned in king's bench prison for debt, ; efforts to prove illegality of imprisonment, ; consequent popularity among fellow-prisoners, , ; arguments and writings on the subject, , ; removed to the 'new jail,' , ; 'blarney' thompson's portrait of, ; release of stephen from prison, ; connection with the legal profession, - ; his family, death of his wife, ; his death, stephen, mr. james, master in chancery, at king's bench prison, , ; education and early training, , ; his relations with the stents, - ; chequered career, ; studies law at aberdeen, ; legal business in london, ; his love affairs, - ; life as a journalist, ; called to the bar, ; practice at st. christopher's, ; marriage to miss stent, ; character, ; speech against slavery, ; attends trial of slaves for murder at barbadoes, ; prosecutes planter for ill-treating negro children, ; flourishing law practice at st. christopher's, , ; returns to england, ; employment in the cockpit, ; joins wilberforce in his anti-slavery crusade, ; death of his first wife, ; second marriage, to mrs. clarke, ; her eccentricities, ; relations with wilberforce, ; his pamphlet on the slave trade, ; his 'war in disguise,' ; the policy suggested therein adopted by the government, ; enters parliament, , ; brougham's criticism of stephen, ; speech of stephen in opposition to benchers' petition, , ; parliamentary encounter with whitbread, ; resigns his seat as a protest against slackness of government in suppressing the slave trade, , ; master in chancery, , ; death of his second wife, ; town and country residences, , ; his works on the slave trade, , , ; example of his prowess, ; his faith in the virtue of port wine, ; death and burial, , ; relatives, ; authorities for his life, ; his children, - stephen, his honour judge, son of serjeant stephen, _n_ stephen, sir james, father of sir james fitzjames, ; birth and early training, ; the 'clapham sect,' _n_; college life, ; official appointments, ; character, ; marriage to miss venn, , ; influence of the venns over, , ; visit to the continent, ; birth of his eldest son, ; illness, ; counsel to the colonial office and board of trade, ; adopts f. w. gibbs, ; sir f. j. stephen's life of his father, ; sir james's 'essays in ecclesiastical biography,' , ; relations with sir henry taylor, ; duties and influence at the colonial office, - ; gluttony for work, , ; nicknames, ; interest in the suppression of slavery, , ; appointed assistant under-secretary, ; resigns board of trade, ; share in the establishment of responsible government in canada, ; sensitive and shy in disposition, , ; tenacity of opinion, ; perfection and richness of his conversational diction, - ; character of his essays and letters, , ; religious creed and sympathies, - ; distinguished acquaintances and friends, , ; distaste for general society and feasts, , ; his ascetic temperament and systematic abstemiousness, ; delight in family meetings, ; evangelical character of his household, - ; as a father, , ; physical and personal characteristics, ; family, ; talks with fitzjames, , , , , , ; concern for fitzjames's health, - ; places his sons at eton, , ; anxiety concerning his son herbert, ; letter to fitzjames, ; effect of herbert's death on, ; illness and resignation of his post, ; made a privy councillor and created k.c.b., ; regius professor of modern history at cambridge, ; delivery, reception and publication of his lectures, , ; accepts professorship at haileybury, ; desires a clerical career for fitzjames, , ; and fitzjames's views on theology, , , ; sir james satirised in 'little dorrit,' ; his criticisms of fitzjames's literary work, , ; on the slavery of a journalistic career, , ; suggestions to fitzjames for a legal history, , ; last days and death, , ; inscription on his tombstone, stephen, lady, birth, _n_; marriage, ; personal characteristics, , ; love of the poets, ; devotion to her husband and children, ; serenity of disposition, , ; religious convictions, ; her reminiscences of switzerland, ; her diary, , ; sir f. j. stephen's letters to, from india, , - ; last years and death, , stephen, sir james fitzjames--_family history_: james stephen (great-grandfather), - ; master james stephen (grandfather) and his children, - ; the venns, - ; sir james stephen (father), - stephen, sir james fitzjames--_early life_: birth, _n_, ; material for his biography, , ; examples of a retentive memory, , ; infantile greeting to wilberforce, ; acquaintance with the poets and other standard works, , ; precocious views on religion and moral conduct, - ; love for his father, their talks on theology and other subjects, , , , , , ; home life and behaviour, , ; school life at brighton and the effect of an excess of evangelical theology received there, - , ; visits rugby, impression of dr. arnold, ; at eton, account of his public school life, - ; argument with herbert coleridge on the subject of confirmation, ; contempt for sentimental writers, ; discussions with his brother herbert on ethics, , ; progress at eton, his contemporaries and amusements, , ; visit to the beamonts, ; leaves eton, ; enters king's college, london, ; enters its debating society, ; progress of his studies, ; his opinion of henry venn, ; and dr. jelf, ; relations with f. d. maurice, ; death of his brother herbert, ; analysis of his character in his cambridge days, , ; dislike for mathematics and classics, , ; mr. watson on his cambridge career, , ; distaste for athletics generally, ; but fondness for walking as an exercise, ; his alpine ascents, ; tutors and contemporaries at cambridge, ; his share in a scene during one of the debates, at the union, , ; encounters with sir william harcourt, , ; connection with the cambridge conversazione society, - ; themes supported by him whilst an 'apostle,' - ; theological opinions at this period, ; interest in contemporary politics, the french revolution, - ; and the gorham case, ; visits paris, ; his affection for cambridge and reasons for his failure there, - ; reading for the bar, ; autobiographical memoranda and criticisms dealing with the choice of a profession, - ; a clerical career suggested, ; enters the inner temple, ; early legal education and practice, , ; introduction to journalism, ; takes ll.b. degree, lond., ; relations with grant duff and smith, - ; his readings of stephen's commentaries, bentham, greg, lardner, and paley, , ; impressions of maurice, , ; recollections of his theology by mr. llewelyn davies, , ; the 'christian observer,' - ; autobiographical account of his courtship and marriage, , stephen, sir james fitzjames--_the bar and journalism_: manifestation of moral and mental qualities described, , ; his powerful affections and lasting attachments, ; the positions of journalism and the law as affecting his career, - ; called to the bar, ; first brief, ; joins the midland circuit, - ; his views on the english bar, ; contemporaries on circuit, ; on monastic life, , ; at the crown court, ; characteristics of judges with whom he had intercourse, ; mr. justice wills's recollections of fitzjames, - ; method and manner as an advocate, , ; distaste for professional technicalities, , ; interest in criminal trials, ; the bacon case, - , ; work as a journalist, ; contributes to the 'morning chronicle,' 'christian observer,' 'law magazine,' ; 'saturday review,' - ; criticisms on novels and novelists, - ; opposition to the policy of the manchester school, , ; his views on theology and denunciation of positivism, ; doctrine of revenge and punishment, ; sir james stephen on fitzjames's literary work, - ; a legal history attempted and abandoned, , ; work on the education commission ( ), - ; literary work and interest in arctic adventure, ; the case of captain parker snow, , , ; recorder of newark ( ), ; last days and death of his father, - ; his essay on the wealth of nature, ; appreciation of james grant duff, ; death of john austin and lord macaulay ( ), ; enumerating his labours during this period, ; progress at the bar, ; complimented by mr. justice willes, ; revising barrister for north derby, ; presented with a red bag, ; circuit successes in - , ; reflections and performances during this period, , ; the two principal cases, ; his defence of a murderer, ; character of his literary work: 'essays by a barrister,' contributions to the 'london review,' 'cornhill magazine,' and 'fraser's,' - ; his conduct of dr. williams's trial, - ; his theological views at this time, - ; his acquaintance and discussion with newman, - ; his articles in 'fraser's magazine' and intimacy with froude, , ; friendship with the carlyles, - ; his general 'view of the criminal law,' ; aim and scope of the work, , ; fundamental agreement with bentham and austin, ; his article on jurisprudence and criticism of maine, - ; comparison of the english and french criminal systems, - ; divergence from bentham, , , , ; appreciation of the english system, ; favourable reception of the work, ; mr. justice willes and the press on his works and his ability and eloquence as an advocate, , ; connection with the 'pall mall gazette,' ; his contemporaries and antagonists on the journal, , ; number of articles appearing in its columns, , ; character of his productions and method of procedure, - ; his article on palmerston as an example of his style, , ; reflections on his characteristics as a journalist, , ; breadth of theological views, - ; political convictions, his liberalism defined, - ; summary of his literary activity at this time ( - ), , ; his literary tastes and aspirations, , ; his share in the agitation against governor eyre, - ; estrangement from j. s. mill, , ; professional work: arbitration cases, nettlefold & chamberlain, , ; takes silk in , and acts as judge, ; counsel in election petition cases, , , ; early and continued interest in india, ; stimulated by presence of friends leads him to accept appointment, - ; short residence in ireland previous to departure for india, , stephen, sir james fitzjames--_indian appointment_: length of his stay and details of his domestic experiences in india, , ; as a letter-writer, ; style of his correspondence, frankness, , ; paternal affection, , ; insatiable appetite for journalistic work, ; personal account of his official duties, ; his estimate of indian civil servants, ; his description of life in calcutta, ; friendships formed, ; personal nature of his indian story, , ; sources from which it has been culled, _n_; his official work in india, ; his views on the penal code, ; fitzjames and the initiation and development of legislation in india, , ; on the framing of a code, ; nature of his task, ; his act consolidating the bengal criminal law ( ), ; the punjab civil code, , ; the punjab land revenue act ( ), - , ; the criminal tribes act, , , ; the native marriages act ( ), - , ; his share in amending the penal code, , ; interest in the law relating to seditious libels, ; his share in amending the code of criminal procedure, - , ; his views on the penal code and the code of criminal procedure, , ; his treatment of the evidence act, - ; his appreciation of the limitation of suits act, , , ; revision of the contract act, , ; his bills on hindoo wills and oaths, ; summary of the results of his official labours, , ; sir c. p. ilbert and other critics on his legislation, ; his intellectual fitness for the work, - ; the special principles of indian legislation, ; as expounded in lord mayo's 'life,' - ; as given in his 'minute on the administration of british india,' - ; his account of lord mayo's work, his murder, state ceremonial, and trial of the murderer, - ; views on the prosecution and sentences of the kookas sect, , ; last attendance at legislative council, stephen, sir james fitzjames--_last years at the bar_: occupation during voyage to england, ; article on 'may meetings,' ; educational value of indian experience, ; arrival in england and meetings with old friends, ; death of his uncle henry and close of his mother's life, , ; return to professional career, ; his hopes concerning codification, , , ; position in intellectual society, ; appearance at the old bailey, ; goes on circuit, ; prepares homicide and other bills, and disgust at english legislative methods, - ; his 'liberty, equality, fraternity,' an apologia, - ; his differences with mill's latter theories, - ; views on law and the necessity of coercion in all matters appertaining to morality, - ; views on god and a future life, - ; criticisms of the book, , ; invited to stand for liverpool, ; expectations regarding codification and law-office appointments, , , ; acts as judge, vice mr. justice lush, , , , ; contests and is defeated at dundee, - ; lord beaconsfield on stephen as a politician, ; his lectures on parliamentary government, ; prospects of a judgeship disappear, ; resolves to codify and devote himself to literary work, ; the homicide bill, , ; work on consolidating indian acts, , ; and english law of contracts, _n_, ; leading counsel for london, chatham and dover railway co., ; practice before the judicial committee of the privy council, ; connection with the metaphysical society, - ; work on the criminal code, , ; the 'digest,' ; appointed professor of common law at the inns of court, , ; his 'digest' of the english law of evidence, ; his advanced reputation and schemes of various legal reforms, ; penal code scheme, - ; volume of his past work as a journalist, ; professional engagements on ecclesiastical cases, - ; his correspondence and friendship with lord lytton, - ; nature of the correspondence, , ; stephen's defence of lytton's indian policy, - ; his political views at this time, , ; made k.c.s.i, ; d.c.l. oxford, and member of several commissions, ; appointed judge, - ; note on his life in ireland, - stephen, sir james fitzjames--_judicial career_: first appearance, ; his 'history 'of the criminal law, , ; account of its inception, , ; the 'historical method,' , ; professor maitland's view of the work, , ; character of his literary style, , ; contents of the work, ; method of dealing with his subjects, ; history of trial by jury, - ; history of the 'benefit of the clergy,' and spiritual courts, , ; history of impeachments, ; ethical problems raised by the inquiry, - ; his work on nuncomar and impey: differences with macaulay, - ; illness, , ; judicial characteristics, - ; the convict lipski, ; and mrs. maybrick, ; his authority with juries in criminal cases, , ; examples of his judgments, , ; miscellaneous occupations: correspondence with lord lytton and lady grant duff, ; private, personal and other particulars regarding these letters, , ; his views on religious matters, - ; his poem on tennyson's 'despair,' - ; his dislike for buddhism and ascetic christianity, , ; respect for mohammedanism and calvinism, , ; his contributions to the 'st. james's gazette,' ; his criticisms and opposition to the 'ilbert bill' and home rule, - ; chairman of ordnance commission and judicial labour, , ; prepares the second edition of the 'view,' ; variety of his reading and study of languages at this time, , ; spanish and italian languages, cervantes and dante, , ; milton, ; death of his friends maine and venables, - ; appoints his son clerk of assize, ; death of his son and lord lytton, ; illness and resignation, , ; created a baronet, ; his french, scottish and american honours, ; residence at ipswich, , ; death and burial, , ; reflections on his career, , ; bibliography of his works and essays, - stephen, james kenneth, birth and education, ; eton contemporaries, ; prowess as an athlete, ; literary achievements and connection with the 'etonian,' ; his 'constitutional' opposition to moody and sankey, ; prizeman at eton, , ; life at cambridge university, , ; takes the character of 'ajax,' ; personal characteristics and political predilections, ; elected fellow of king's college, ; called to the bar, ; oratorical powers, ; his literary venture, the 'reflector,' and its fate, , ; appointed clerk of assize on south wales circuit, ; resignation of his assize clerkship and settlement at cambridge, ; illness and death, stephen, mr. james wilberforce, _n_ stephen, mr. james young, _n_ stephen, mr. john, _n_ stephen, mr. john, _n_ stephen, mr. john, judge in n. s. w., stephen, mr. leslie, _n_, ; on public school life at eton, , ; ascent of the jungfrauwith sir j. f. stephen, ; on the metaphysical society, , stephen, miss mary. _see_ hodson, archdeacon stephen, mr. oscar leslie, _n_ stephen, mr. oscar leslie, junior, _n_ stephen, miss sarah, character and works, _n_ stephen, miss sibella. _see_ morison, mr. william maxwell stephen, miss sibella. _see_ garratt, mrs. w. a. stephen, mr. thomas, provost of dundee, _n_ stephen, dr. william, physician and planter at st. christopher's, ; quarrel with his brother james, ; interest in his nephew william, ; his death, stephen, mr. william, _n_; visits his uncle at st. christopher's, ; returns home and studies medicine, ; settles at st. christopher's, ; assists his brother james, stephen, mr. william, _n_; his career, , , , ; death, ; his wife (mary forbes) and family, stephen, rev. william, characteristics of, , ; marries miss grace, sterling an 'apostle' at cambridge, sterne, as a novelist, stewart, mr., his share in the indian contract act, stokes, sir george, stokes, mr. whitley, _n_, , , , storks, sir henry, member of the jamaica commission, strachey, sir j. f. stephen's friendship with, ; official duties in india, , , ; residence in ireland, , stuarts, the criminal law in the time of, - stubbs, dr., swift as a clergyman, ; his pessimistic views on politics and religion, swinburne, algernon charles, his merits as a poet, switzerland, visit of sir j. and lady stephen to, , sykes, miss martha. _see_ venn, rev. henry syria, the romans in, an analogy, 'tablet,' the, on the ward-stephen controversy, talleyrand, taylor, sir henry, his intimacy with sir j. stephen, and story of the latter's official career, - , taylor, mr. p. a., vice-chairman of the jamaica committee, taylor, tom, an 'apostle' at cambridge, taylor on evidence discussed, , temple, sir richard, prepares the punjab civil code, ; on the punjab land revenue act, ; his share in the indian code of criminal procedure, tennyson, alfred, an 'apostle' at cambridge, ; criticism of the 'princess,' ; quoted, ; intimacy with g. s. venables, , ; connection with the metaphysical society, , ; his 'maud' quoted, ; his poem 'despair,' , thackeray, miss (mrs. richmond ritchie), sir j. f. stephen's letters to, , , thackeray, w. m., reference to his works and characters, , , ; intimacy with g. s. venables, ; edits the 'cornhill magazine,' ; intimacy with j. f. stephen, theology, sir j. f. stephen and, - , , , , - thirlwall, bishop, the historian, his defence of the cambridge 'apostles,' thomason, mr., his works relating to the administration of the punjab, thompson, william ('blarney'), the painter, ; his portrait of mr. james stephen, thompson, w. h., ; an 'apostle' at cambridge, ; master of trinity, cambridge, thomson, dr. william (archbishop of york), sir j. f. stephen's review of his pamphlet, thornton, mr. henry, of the clapham sect, thornton, mr. john, of the clapham sect, throckmorton, tichborne claimant, the, tierra del fuego, captain parker snow's explorations in, 'times,' the, j. d. cook's and j. s. venables' connection with, , _n_; criticised by the 'saturday review,' ; sir j. f. stephen's letters to , , tocqueville, on sir j. stephen's lectures on france, ; influence of his writings on j. s. mill, tooke, horne, , 'torch,' the, its account of the dundee election, , , trappist monastery, charnwood forest, sir j. f. stephen's visit to, , trevelyan, sir george, tudors, the criminal law in the time of the, turkey, war with russia, tyndall, professor, his connection with the metaphysical society, ultramontane controversy, - unitarianism, ; its counterpart in india, united states, the, effect of james stephen's writings on england's relations with, ; legislation in, compared with england, . _see_ america _and_ american utilitarianism and utilitarians, , , , , , , - , , , , - , , venables, george stovin, friendship with sir j. f. stephen, , , , ; his public school, university, and professional career, ; his contributions to the 'saturday review' and 'times,' , ; sir j. f. stephen's biographical notice of, , venables, mrs. lyster, venn, miss caroline. _see_ batten, rev. ellis venn, miss catherine eling, _n_ venn, miss emelia, particulars concerning, _n_, - , venn, rev. henry, vicar of huddersfield, his character, life, and works , venn, rev. henry, birth and education, ; influence over james stephen, , , ; marriage to miss sykes, ; livings, ; connection with church missionary society, ; character, - ; his vindication of sir j. stephen, ; j. f. stephen's residence with and opinion of, , ; on the choice of a profession for fitzjames, , ; suggests that he should edit the 'christian observer,' , ; his death, venn, rev. john, of clapham, venn, rev. john, rector of clapham, ; founder and projector of the church missionary society, ; his wife (miss catherine king) and child, _n_, venn, rev. john, birth, _n_; influence over james stephen, , , ; life in hereford, ; character, ; connection with rev. j. w. cunningham, ; sir j. f. stephen visits, venn, dr. john, on the venn family, _n_ venn, rev. richard, ; marries miss ashton, venn, rev. william, vicar of atterton, _n_ victoria, queen, proclaimed empress of india, walpole, his 'life of perceval,' walter, mr. john, his interest in j. d. cook, war office, disorganised state of, warburton, bishop, and the rev. richard venn, ; as a clergyman, ward, mr. w. g., his connection with the metaphysical society, , ; his encounters with sir j. f. stephen, , , , warwick, sir j. f. stephen at, watson, david, his unitarian tendencies, watson, rev. w. h., on sir j. f. stephen at cambridge, ; an 'apostle' at cambridge, watts's hymns, webbe, sir john, his business relations with james stephen, , webster, sir richard, attorney-general, wellesley, his work in india, , wengern alp, the, wensleydale, lord, wesley, rev. john, ; sir j. stephen on, ; and the church of england, westbury, lord, , ; his judgment in dr. williams's case, , whewell, william, at cambridge university, ; relations with sir james and j. f. stephen, whewell scholarship at cambridge, whitbread, samuel, parliamentary encounters with james stephen, whitefield, george, whitworth, mr. g. c., his criticisms of sir j. f. stephen's views on the law of evidence, wilberforce, william, his crusade against the slave trade and relations with james stephen, , , , ; presents rev. henry venn to living, ; sir james stephen and, , ; j. f. stephen's first greeting to, 'wilberforce's walk,' willes, mr. justice, , , williams, mr., publisher of paine's 'age of reason,' his trial, williams, sir monier, and native testimony regarding our rule in india, williams, mr. montagu, williams, dr. rowland, his trial, , ; fitness of j. f. stephen to defend, , ; his speech and line of defence, , ; result of the trial, , ; conduct of the case, ; work on, wills, mr. justice, his reminiscences of sir j. f. stephen, - wilson, mr. h. f., _n_ winchester college, mr. r. lowe on, wolfe, 'burial of sir john moore,' the, wordsworth, his poems, , xavier, st. francis, sir j. stephen on, , yeaman, mr., opposes sir j. f. stephen at dundee, , young, sir charles, late secretary english church union, young's 'night thoughts,' master stephen's early acquaintance with, _spottiswooode & co. printers, new-street square, london._ * * * * * transcriber's note: the following changes have been made to the text: in the index entry for "lady egerton" page was changed to . in the index entry for "stephen, sir james fitzjames—_judicial career_: bibliography of his works and essays," " - " was changed to " - ". page : "try ot teach" changed to "try to teach". page : added missing footnote anchor for footnote . page : "conected with some" changed to "connected with some". page : "uch as , " changed to "much as , ." page : "with with fitzjames" changed to "with fitzjames". page : " , the trial of nelson and brand" changed to " , the trial of nelson and brand". page : "intelligble principles" changed to "intelligible principles". page : "partly from comtempt" changed to "partly from contempt". page : "expreses very scanty" changed to "expresses very scanty". page : "editor of th 'times" changed to "editor of the 'times". page : "robespierre, sir j. f. stephen s" changed to "robespierre, sir j. f. stephen's. page " "anti-slavery crusude" changed to "anti-slavery crusade". page : "visit to the beaumonts" changed to "visit to the beamonts". the english constitution by walter bagehot contents i. introduction to the second edition. ii. the cabinet. iii. the monarchy. iv. the house of lords. v. the house of commons. vi. on changes of ministry. vii. its supposed checks and balances. viii. the prerequisites of cabinet government, and the peculiar form which they have assumed in england. ix. its history, and the effects of that history.--conclusion. no. i. introduction to the second edition. there is a great difficulty in the way of a writer who attempts to sketch a living constitution--a constitution that is in actual work and power. the difficulty is that the object is in constant change. an historical writer does not feel this difficulty: he deals only with the past; he can say definitely, the constitution worked in such and such a manner in the year at which he begins, and in a manner in such and such respects different in the year at which he ends; he begins with a definite point of time and ends with one also. but a contemporary writer who tries to paint what is before him is puzzled and a perplexed: what he sees is changing daily. he must paint it as it stood at some one time, or else he will be putting side by side in his representations things which never were contemporaneous in reality. the difficulty is the greater because a writer who deals with a living government naturally compares it with the most important other living governments, and these are changing too; what he illustrates are altered in one way, and his sources of illustration are altered probably in a different way. this difficulty has been constantly in my way in preparing a second edition of this book. it describes the english constitution as it stood in the years and . roughly speaking, it describes its working as it was in the time of lord palmerston; and since that time there have been many changes, some of spirit and some of detail. in so short a period there have rarely been more changes. if i had given a sketch of the palmerston time as a sketch of the present time, it would have been in many points untrue; and if i had tried to change the sketch of seven years since into a sketch of the present time, i should probably have blurred the picture and have given something equally unlike both. the best plan in such a case is, i think, to keep the original sketch in all essentials as it was at first written, and to describe shortly such changes either in the constitution itself, or in the constitutions compared with it, as seem material. there are in this book various expressions which allude to persons who were living and to events which were happening when it first appeared; and i have carefully preserved these. they will serve to warn the reader what time he is reading about, and to prevent his mistaking the date at which the likeness was attempted to be taken. i proceed to speak of the changes which have taken place either in the constitution itself or in the competing institutions which illustrate it. it is too soon as yet to attempt to estimate the effect of the reform act of . the people enfranchised under it do not yet know their own power; a single election, so far from teaching us how they will use that power, has not been even enough to explain to them that they have such power. the reform act of did not for many years disclose its real consequences; a writer in , whether he approved or disapproved of them, whether he thought too little of or whether he exaggerated them, would have been sure to be mistaken in them. a new constitution does not produce its full effect as long as all its subjects were reared under an old constitution, as long as its statesmen were trained by that old constitution. it is not really tested till it comes to be worked by statesmen and among a people neither of whom are guided by a different experience. in one respect we are indeed particularly likely to be mistaken as to the effect of the last reform bill. undeniably there has lately been a great change in our politics. it is commonly said that "there is not a brick of the palmerston house standing". the change since is a change not in one point but in a thousand points; it is a change not of particular details but of pervading spirit. we are now quarrelling as to the minor details of an education act; in lord palmerston's time no such act could have passed. in lord palmerston's time sir george grey said that the disestablishment of the irish church would be an "act of revolution"; it has now been disestablished by great majorities, with sir george grey himself assenting. a new world has arisen which is not as the old world; and we naturally ascribe the change to the reform act. but this is a complete mistake. if there had been no reform act at all there would, nevertheless, have been a great change in english politics. there has been a change of the sort which, above all, generates other changes--a change of generation. generally one generation in politics succeeds another almost silently; at every moment men of all ages between thirty and seventy have considerable influence; each year removes many old men, makes all others older, brings in many new. the transition is so gradual that we hardly perceive it. the board of directors of the political company has a few slight changes every year, and therefore the shareholders are conscious of no abrupt change. but sometimes there is an abrupt change. it occasionally happens that several ruling directors who are about the same age live on for many years, manage the company all through those years, and then go off the scene almost together. in that case the affairs of the company are apt to alter much, for good or for evil; sometimes it becomes more successful, sometimes it is ruined, but it hardly ever stays as it was. something like this happened before . all through the period between and , the pre-' statesmen--if i may so call them--lord derby, lord russell, lord palmerston, retained great power. lord palmerston to the last retained great prohibitive power. though in some ways always young, he had not a particle of sympathy with the younger generation; he brought forward no young men; he obstructed all that young men wished. in consequence, at his death a new generation all at once started into life; the pre-' all at once died out. most of the new politicians were men who might well have been lord palmerston's grandchildren. he came into parliament in , they entered it after . such an enormous change in the age of the workers necessarily caused a great change in the kind of work attempted and the way in which it was done. what we call the "spirit" of politics is more surely changed by a change of generation in the men than by any other change whatever. even if there had been no reform act, this single cause would have effected grave alterations. the mere settlement of the reform question made a great change too. if it could have been settled by any other change, or even without any change, the instant effect of the settlement would still have been immense. new questions would have appeared at once. a political country is like an american forest; you have only to cut down the old trees, and immediately new trees come up to replace them; the seeds were waiting in the ground, and they began to grow as soon as the withdrawal of the old ones brought in light and air. these new questions of themselves would have made a new atmosphere, new parties, new debates. of course i am not arguing that so important an innovation as the reform act of will not have very great effects. it must, in all likelihood, have many great ones. i am only saying that as yet we do not know what those effects are; that the great evident change since is certainly not strictly due to it; probably is not even in a principal measure due to it; that we have still to conjecture what it will cause and what it will not cause. the principal question arises most naturally from a main doctrine of these essays. i have said that cabinet government is possible in england because england was a deferential country. i meant that the nominal constituency was not the real constituency; that the mass of the "ten-pound" house-holders did not really form their own opinions, and did not exact of their representatives an obedience to those opinions; that they were in fact guided in their judgment by the better educated classes; that they preferred representatives from those classes, and gave those representatives much licence. if a hundred small shopkeepers had by miracle been added to any of the ' parliaments, they would have felt outcasts there. nothing could be more unlike those parliaments than the average mass of the constituency from which they were chosen. i do not of course mean that the ten-pound householders were great admirers of intellect or good judges of refinement. we all know that, for the most part, they were not so at all; very few englishmen are. they were not influenced by ideas, but by facts; not by things impalpable, but by things palpable. not to put too fine a point upon it, they were influenced by rank and wealth. no doubt the better sort of them believed that those who were superior to them in these indisputable respects were superior also in the more intangible qualities of sense and knowledge. but the mass of the old electors did not analyse very much: they liked to have one of their "betters" to represent them; if he was rich they respected him much; and if he was a lord, they liked him the better. the issue put before these electors was, which of two rich people will you choose? and each of those rich people was put forward by great parties whose notions were the notions of the rich--whose plans were their plans. the electors only selected one or two wealthy men to carry out the schemes of one or two wealthy associations. so fully was this so, that the class to whom the great body of the ten-pound householders belonged--the lower middle class--was above all classes the one most hardly treated in the imposition of the taxes. a small shopkeeper, or a clerk who just, and only just, was rich enough to pay income tax, was perhaps the only severely taxed man in the country. he paid the rates, the tea, sugar, tobacco, malt, and spirit taxes, as well as the income tax, but his means were exceedingly small. curiously enough the class which in theory was omnipotent, was the only class financially ill-treated. throughout the history of our former parliaments the constituency could no more have originated the policy which those parliaments selected than they could have made the solar system. as i have endeavoured to show in this volume, the deference of the old electors to their betters was the only way in which our old system could be maintained. no doubt countries can be imagined in which the mass of the electors would be thoroughly competent to form good opinions; approximations to that state happily exist. but such was not the state of the minor english shopkeepers. they were just competent to make a selection between two sets of superior ideas; or rather--for the conceptions of such people are more personal than abstract--between two opposing parties, each professing a creed of such ideas. but they could do no more. their own notions, if they had been cross-examined upon them, would have been found always most confused and often most foolish. they were competent to decide an issue selected by the higher classes, but they were incompetent to do more. the grave question now is, how far will this peculiar old system continue and how far will it be altered? i am afraid i must put aside at once the idea that it will be altered entirely and altered for the better. i cannot expect that the new class of voters will be at all more able to form sound opinions on complex questions than the old voters. there was indeed an idea--a very prevalent idea when the first edition of this book was published--that there then was an unrepresented class of skilled artisans who could form superior opinions on national matters, and ought to have the means of expressing them. we used to frame elaborate schemes to give them such means. but the reform act of did not stop at skilled labour; it enfranchised unskilled labour too. and no one will contend that the ordinary working man who has no special skill, and who is only rated because he has a house, can judge much of intellectual matters. the messenger in an office is not more intelligent than the clerks, not better educated, but worse; and yet the messenger is probably a very superior specimen of the newly enfranchised classes. the average can only earn very scanty wages by coarse labour. they have no time to improve themselves, for they are labouring the whole day through; and their early education was so small that in most cases it is dubious whether even if they had much time, they could use it to good purpose. we have not enfranchised a class less needing to be guided by their betters than the old class; on the contrary, the new class need it more than the old. the real question is, will they submit to it, will they defer in the same way to wealth and rank, and to the higher qualities of which these are the rough symbols and the common accompaniments? there is a peculiar difficulty in answering this question. generally, the debates upon the passing of an act contain much valuable instruction as to what may be expected of it. but the debates on the reform act of hardly tell anything. they are taken up with technicalities as to the ratepayers and the compound householder. nobody in the country knew what was being done. i happened at the time to visit a purely agricultural and conservative county, and i asked the local tories, "do you understand this reform bill? do you know that your conservative government has brought in a bill far more radical than any former bill, and that it is very likely to be passed?" the answer i got was, "what stuff you talk! how can it be a radical reform bill? why, bright opposes it!" there was no answering that in a way which a "common jury" could understand. the bill was supported by the times and opposed by mr. bright; and therefore the mass of the conservatives and of common moderate people, without distinction of party, had no conception of the effect. they said it was "london nonsense" if you tried to explain it to them. the nation indeed generally looks to the discussions in parliament to enlighten it as to the effect of bills. but in this case neither party, as a party, could speak out. many, perhaps most of the intelligent conservatives, were fearful of the consequences of the proposal; but as it was made by the heads of their own party, they did not like to oppose it, and the discipline of party carried them with it. on the other side, many, probably most of the intelligent liberals, were in consternation at the bill; they had been in the habit for years of proposing reform bills; they knew the points of difference between each bill, and perceived that this was by far the most sweeping which had ever been proposed by any ministry. but they were almost all unwilling to say so. they would have offended a large section in their constituencies if they had resisted a tory bill because it was too democratic; the extreme partisans of democracy would have said, "the enemies of the people have confidence enough in the people to entrust them with this power, but you, a 'liberal,' and a professed friend of the people, have not that confidence; if that is so, we will never vote for you again". many radical members who had been asking for years for household suffrage were much more surprised than pleased at the near chance of obtaining it; they had asked for it as bargainers ask for the highest possible price, but they never expected to get it. altogether the liberals, or at least the extreme liberals, were much like a man who has been pushing hard against an opposing door, till, on a sudden, the door opens, the resistance ceases, and he is thrown violently forward. persons in such an unpleasant predicament can scarcely criticise effectually, and certainly the liberals did not so criticise. we have had no such previous discussions as should guide our expectations from the reform bill, nor such as under ordinary circumstances we should have had. nor does the experience of the last election much help us. the circumstances were too exceptional. in the first place, mr. gladstone's personal popularity was such as has not been seen since the time of mr. pitt, and such as may never be seen again. certainly it will very rarely be seen. a bad speaker is said to have been asked how he got on as a candidate. "oh," he answered, "when i do not know what to say, i say 'gladstone,' and then they are sure to cheer, and i have time to think." in fact, that popularity acted as a guide both to constituencies and to members. the candidates only said they would vote with mr. gladstone, and the constituencies only chose those who said so. even the minority could only be described as anti-gladstone, just as the majority could only be described as pro-gladstone. the remains, too, of the old electoral organisation were exceedingly powerful; the old voters voted as they had been told, and the new voters mostly voted with them. in extremely few cases was there any new and contrary organisation. at the last election, the trial of the new system hardly began, and, as far as it did begin, it was favoured by a peculiar guidance. in the meantime our statesmen have the greatest opportunities they have had for many years, and likewise the greatest duty. they have to guide the new voters in the exercise of the franchise; to guide them quietly, and without saying what they are doing, but still to guide them. the leading statesmen in a free country have great momentary power. they settle the conversation of mankind. it is they who, by a great speech or two, determine what shall be said and what shall be written for long after. they, in conjunction with their counsellors, settle the programme of their party--the "platform," as the americans call it, on which they and those associated with them are to take their stand for the political campaign. it is by that programme, by a comparison of the programmes of different statesmen, that the world forms its judgment. the common ordinary mind is quite unfit to fix for itself what political question it shall attend to; it is as much as it can do to judge decently of the questions which drift down to it, and are brought before it; it almost never settles its topics; it can only decide upon the issues of those topics. and in settling what these questions shall be, statesmen have now especially a great responsibility if they raise questions which will excite the lower orders of mankind; if they raise questions on which those orders are likely to be wrong; if they raise questions on which the interest of those orders is not identical with, or is antagonistic to, the whole interest of the state, they will have done the greatest harm they can do. the future of this country depends on the happy working of a delicate experiment, and they will have done all they could to vitiate that experiment. just when it is desirable that ignorant men, new to politics, should have good issues, and only good issues, put before them, these statesmen will have suggested bad issues. they will have suggested topics which will bind the poor as a class together; topics which will excite them against the rich; topics the discussion of which in the only form in which that discussion reaches their ear will be to make them think that some new law can make them comfortable--that it is the present law which makes them uncomfortable--that government has at its disposal an inexhaustible fund out of which it can give to those who now want without also creating elsewhere other and greater wants. if the first work of the poor voters is to try to create a "poor man's paradise," as poor men are apt to fancy that paradise, and as they are apt to think they can create it, the great political trial now beginning will simply fail. the wide gift of the elective franchise will be a great calamity to the whole nation, and to those who gain it as great a calamity as to any. i do not of course mean that statesmen can choose with absolute freedom what topics they will deal with and what they will not. i am of course aware that they choose under stringent conditions. in excited states of the public mind they have scarcely a discretion at all; the tendency of the public perturbation determines what shall and what shall not be dealt with. but, upon the other hand, in quiet times statesmen have great power; when there is no fire lighted, they can settle what fire shall be lit. and as the new suffrage is happily to be tried in a quiet time, the responsibility of our statesmen is great because their power is great too. and the mode in which the questions dealt with are discussed is almost as important as the selection of these questions. it is for our principal statesmen to lead the public, and not to let the public lead them. no doubt when statesmen live by public favour, as ours do, this is a hard saying, and it requires to be carefully limited. i do not mean that our statesmen should assume a pedantic and doctrinaire tone with the english people; if there is anything which english people thoroughly detest, it is that tone exactly. and they are right in detesting it; if a man cannot give guidance and communicate instruction formally without telling his audience "i am better than you; i have studied this as you have not," then he is not fit for a guide or an instructor. a statesman who should show that gaucherie would exhibit a defect of imagination, and expose an incapacity for dealing with men which would be a great hindrance to him in his calling. but much argument is not required to guide the public, still less a formal exposition of that argument. what is mostly needed is the manly utterance of clear conclusions; if a statesman gives these in a felicitous way (and if with a few light and humorous illustrations, so much the better), he has done his part. he will have given the text, the scribes in the newspapers will write the sermon. a statesman ought to show his own nature, and talk in a palpable way what is to him important truth. and so he will both guide and benefit the nation. but if, especially at a time when great ignorance has an unusual power in public affairs, he chooses to accept and reiterate the decisions of that ignorance, he is only the hireling of the nation, and does little save hurt it. i shall be told that this is very obvious, and that everybody knows that and make , and that there is no use in inculcating it. but i answer that the lesson is not observed in fact; people do not so do their political sums. of all our political dangers, the greatest i conceive is that they will neglect the lesson. in plain english, what i fear is that both our political parties will bid for the support of the working man; that both of them will promise to do as he likes if he will only tell them what it is; that, as he now holds the casting vote in our affairs, both parties will beg and pray him to give that vote to them. i can conceive of nothing more corrupting or worse for a set of poor ignorant people than that two combinations of well-taught and rich men should constantly offer to defer to their decision, and compete for the office of executing it. vox populi will be vox diaboli if it is worked in that manner. and, on the other hand, my imagination conjures up a contrary danger. i can conceive that questions being raised which, if continually agitated, would combine the working men as a class together, the higher orders might have to consider whether they would concede the measure that would settle such questions, or whether they would risk the effect of the working men's combination. no doubt the question cannot be easily discussed in the abstract; much must depend on the nature of the measures in each particular case; on the evil they would cause if conceded; on the attractiveness of their idea to the working classes if refused. but in all cases it must be remembered that a political combination of the lower classes, as such and for their own objects, is an evil of the first magnitude; that a permanent combination of them would make them (now that so many of them have the suffrage) supreme in the country; and that their supremacy, in the state they now are, means the supremacy of ignorance over instruction and of numbers over knowledge. so long as they are not taught to act together, there is a chance of this being averted, and it can only be averted by the greatest wisdom and the greatest foresight in the higher classes. they must avoid, not only every evil, but every appearance of evil; while they have still the power they must remove, not only every actual grievance, but, where it is possible, every seeming grievance too; they must willingly concede every claim which they can safely concede, in order that they may not have to concede unwillingly some claim which would impair the safety of the country. this advice, too, will be said to be obvious; but i have the greatest fear that, when the time comes, it will be cast aside as timid and cowardly. so strong are the combative propensities of man that he would rather fight a losing battle than not fight at all. it is most difficult to persuade people that by fighting they may strengthen the enemy, yet that would be so here; since a losing battle--especially a long and well-fought one--would have thoroughly taught the lower orders to combine, and would have left the higher orders face to face with an irritated, organised, and superior voting power. the courage which strengthens an enemy and which so loses, not only the present battle, but many after battles, is a heavy curse to men and nations. in one minor respect, indeed, i think we may see with distinctness the effect of the reform bill of . i think it has completed one change which the act of began; it has completed the change which that act made in the relation of the house of lords to the house of commons. as i have endeavoured in this book to explain, the literary theory of the english constitution is on this point quite wrong as usual. according to that theory, the two houses are two branches of the legislature, perfectly equal and perfectly distinct. but before the act of they were not so distinct; there was a very large and a very strong common element. by their commanding influence in many boroughs and counties the lords nominated a considerable part of the commons; the majority of the other part were the richer gentry--men in most respects like the lords, and sympathising with the lords. under the constitution as it then was the two houses were not in their essence distinct; they were in their essence similar; they were, in the main, not houses of contrasted origin, but houses of like origin. the predominant part of both was taken from the same class--from the english gentry, titled and untitled. by the act of this was much altered. the aristocracy and the gentry lost their predominance in the house of commons; that predominance passed to the middle class. the two houses then became distinct, but then they ceased to be co-equal. the duke of wellington, in a most remarkable paper, has explained what pains he took to induce the lords to submit to their new position, and to submit, time after time, their will to the will of the commons. the reform act of has, i think, unmistakably completed the effect which the act of began, but left unfinished. the middle class element has gained greatly by the second change, and the aristocratic element has lost greatly. if you examine carefully the lists of members, especially of the most prominent members, of either side of the house, you will not find that they are in general aristocratic names. considering the power and position of the titled aristocracy, you will perhaps be astonished at the small degree in which it contributes to the active part of our governing assembly. the spirit of our present house of commons is plutocratic, not aristocratic; its most prominent statesmen are not men of ancient descent or of great hereditary estate; they are men mostly of substantial means, but they are mostly, too, connected more or less closely with the new trading wealth. the spirit of the two assemblies has become far more contrasted than it ever was. the full effect of the reform act of was indeed postponed by the cause which i mentioned just now. the statesmen who worked the system which was put up had themselves been educated under the system which was pulled down. strangely enough, their predominant guidance lasted as long as the system which they created. lord palmerston, lord russell, lord derby, died or else lost their influence within a year or two of . the complete consequences of the act of upon the house of lords could not be seen while the commons were subject to such aristocratic guidance. much of the change which might have been expected from the act of was held in suspense, and did not begin till that measure had been followed by another of similar and greater power. the work which the duke of wellington in part performed has now, therefore, to be completed also. he met the half difficulty; we have to surmount the whole one. we have to frame such tacit rules, to establish such ruling but unenacted customs, as will make the house of lords yield to the commons when and as often as our new constitution requires that it should yield. i shall be asked, how often is that, and what is the test by which you know it? i answer that the house of lords must yield whenever the opinion of the commons is also the opinion of the nation, and when it is clear that the nation has made up its mind. whether or not the nation has made up its mind is a question to be decided by all the circumstances of the case, and in the common way in which all practical questions are decided. there are some people who lay down a sort of mechanical test; they say the house of lords should be at liberty to reject a measure passed by the commons once or more, and then if the commons send it up again and again, infer that the nation is determined. but no important practical question in real life can be uniformly settled by a fixed and formal rule in this way. this rule would prove that the lords might have rejected the reform act of . whenever the nation was both excited and determined, such a rule would be an acute and dangerous political poison. it would teach the house of lords that it might shut its eyes to all the facts of real life and decide simply by an abstract formula. if in the lords had so acted, there would have been a revolution. undoubtedly there is a general truth in the rule. whether a bill has come up once only, or whether it has come up several times, is one important fact in judging whether the nation is determined to have that measure enacted; it is an indication, but it is only one of the indications. there are others equally decisive. the unanimous voice of the people may be so strong, and may be conveyed through so many organs, that it may be assumed to be lasting. englishmen are so very miscellaneous, that that which has really convinced a great and varied majority of them for the present may fairly be assumed to be likely to continue permanently to convince them. one sort might easily fall into a temporary and erroneous fanaticism, but all sorts simultaneously are very unlikely to do so. i should venture so far as to lay down for an approximate rule, that the house of lords ought, on a first-class subject, to be slow--very slow--in rejecting a bill passed even once by a large majority of the house of commons. i would not of course lay this down as an unvarying rule; as i have said, i have for practical purposes no belief in unvarying rules. majorities may be either genuine or fictitious, and if they are not genuine, if they do not embody the opinion of the representative as well as the opinion of the constituency, no one would wish to have any attention paid to them. but if the opinion of the nation be strong and be universal, if it be really believed by members of parliament, as well as by those who send them to parliament, in my judgment the lords should yield at once, and should not resist it. my main reason is one which has not been much urged. as a theoretical writer i can venture to say, what no elected member of parliament, conservative or liberal, can venture to say, that i am exceedingly afraid of the ignorant multitude of the new constituencies. i wish to have as great and as compact a power as possible to resist it. but a dissension between the lords and commons divides that resisting power; as i have explained, the house of commons still mainly represents the plutocracy, the lords represent the aristocracy. the main interest of both these classes is now identical, which is to prevent or to mitigate the rule of uneducated numbers. but to prevent it effectually, they must not quarrel among themselves; they must not bid one against the other for the aid of their common opponent. and this is precisely the effect of a division between lords and commons. the two great bodies of the educated rich go to the constituencies to decide between them, and the majority of the constituencies now consist of the uneducated poor. this cannot be for the advantage of any one. in doing so besides the aristocracy forfeit their natural position--that by which they would gain most power, and in which they would do most good. they ought to be the heads of the plutocracy. in all countries new wealth is ready to worship old wealth, if old wealth will only let it, and i need not say that in england new wealth is eager in its worship. satirist after satirist has told us how quick, how willing, how anxious are the newly-made rich to associate with the ancient rich. rank probably in no country whatever has so much "market" value as it has in england just now. of course there have been many countries in which certain old families, whether rich or poor, were worshipped by whole populations with a more intense and poetic homage; but i doubt if there has ever been any in which all old families and all titled families received more ready observance from those who were their equals, perhaps their superiors, in wealth, their equals in culture, and their inferiors only in descent and rank. the possessors of the "material" distinctions of life, as a political economist would class them, rush to worship those who possess the immaterial distinctions. nothing can be more politically useful than such homage, if it be skilfully used; no folly can be idler than to repel and reject it. the worship is the more politically important because it is the worship of the political superior for the political inferior. at an election the non-titled are much more powerful than the titled. certain individual peers have, from their great possessions, great electioneering influence, but, as a whole, the house of peers is not a principal electioneering force. it has so many poor men inside it, and so many rich men outside it, that its electioneering value is impaired. besides, it is in the nature of the curious influence of rank to work much more on men singly than on men collectively; it is an influence which most men--at least most englishmen--feel very much, but of which most englishmen are somewhat ashamed. accordingly, when any number of men are collected together, each of whom worships rank in his heart, the whole body will patiently hear--in many cases will cheer and approve--some rather strong speeches against rank. each man is a little afraid that his "sneaking kindness for a lord," as mr. gladstone put it, be found out; he is not sure how far that weakness is shared by those around him. and thus englishmen easily find themselves committed to anti-aristocratic sentiments which are the direct opposite of their real feeling, and their collective action may be bitterly hostile to rank while the secret sentiment of each separately is especially favourable to rank. in the close boroughs, which were largely held by peers, and were still more largely supposed to be held by them, were swept away with a tumult of delight; and in another similar time of great excitement, the lords themselves, if they deserve it, might pass away. the democratic passions gain by fomenting a diffused excitement, and by massing men in concourses; the aristocratic sentiments gain by calm and quiet, and act most on men by themselves, in their families, and when female influence is not absent. the overt electioneering power of the lords does not at all equal its real social power. the english plutocracy, as is often said of something yet coarser, must be "humoured, not drove"; they may easily be impelled against the aristocracy, though they respect it very much; and as they are much stronger than the aristocracy, they might, if angered, even destroy it; though in order to destroy it, they must help to arouse a wild excitement among the ignorant poor, which, if once roused, may not be easily calmed, and which may be fatal to far more than its beginners intend. this is the explanation of the anomaly which puzzles many clever lords. they think, if they do not say, "why are we pinned up here? why are we not in the commons where we could have so much more power? why is this nominal rank given us, at the price of substantial influence? if we prefer real weight to unreal prestige, why may we not have it?" the reply is, that the whole body of the lords have an incalculably greater influence over society while there is still a house of lords, than they would have if the house of lords were abolished; and that though one or two clever young peers might do better in the commons, the old order of peers, young and old, clever and not clever, is much better where it is. the selfish instinct of the mass of peers on this point is a keener and more exact judge of the real world than the fine intelligence of one or two of them. if the house of peers ever goes, it will go in a storm, and the storm will not leave all else as it is. it will not destroy the house of peers and leave the rich young peers, with their wealth and their titles, to sit in the commons. it would probably sweep all titles before it--at least all legal titles--and somehow or other it would break up the curious system by which the estates of great families all go to the eldest son. that system is a very artificial one; you may make a fine argument for it, but you cannot make a loud argument, an argument which would reach and rule the multitude. the thing looks like injustice, and in a time of popular passion it would not stand. much short of the compulsory equal division of the code napoleon, stringent clauses might be provided to obstruct and prevent these great aggregations of property. few things certainly are less likely than a violent tempest like this to destroy large and hereditary estates. but then, too, few things are less likely than an outbreak to destroy the house of lords--my point is, that a catastrophe which levels one will not spare the other. i conceive, therefore, that the great power of the house of lords should be exercised very timidly and very cautiously. for the sake of keeping the headship of the plutocracy, and through that of the nation, they should not offend the plutocracy; the points upon which they have to yield are mostly very minor ones, and they should yield many great points rather than risk the bottom of their power. they should give large donations out of income, if by so doing they keep, as they would keep, their capital intact. the duke of wellington guided the house of lords in this manner for years, and nothing could prosper better for them or for the country, and the lords have only to go back to the good path in which he directed them. the events of caused much discussion upon life peerages, and we have gained this great step, that whereas the former leader of the tory party in the lords--lord lyndhurst--defeated the last proposal to make life peers, lord derby, when leader of that party, desired to create them. as i have given in this book what seemed to me good reasons for making them, i need not repeat those reasons here; i need only say how the notion stands in my judgment now. i cannot look on life peerages in the way in which some of their strongest advocates regard them; i cannot think of them as a mode in which a permanent opposition or a contrast between the houses of lords and commons is to be remedied. to be effectual in that way, life peerages must be very numerous. now the house of lords will never consent to a very numerous life peerage without a storm; they must be in terror to do it, or they will not do it. and if the storm blows strongly enough to do so much, in all likelihood it will blow strongly enough to do much more. if the revolution is powerful enough and eager enough to make an immense number of life peers, probably it will sweep away the hereditary principle in the upper chamber entirely. of course one may fancy it to be otherwise; we may conceive of a political storm just going to a life-peerage limit, and then stopping suddenly. but in politics we must not trouble ourselves with exceedingly exceptional accidents; it is quite difficult enough to count on and provide for the regular and plain probabilities. to speak mathematically, we may easily miss the permanent course of the political curve if we engross our minds with its cusps and conjugate points. nor, on the other hand, can i sympathise with the objection to life peerages which some of the radical party take and feel. they think it will strengthen the lords, and so make them better able to oppose the commons; they think, if they do not say: "the house of lords is our enemy and that of all liberals; happily the mass of it is not intellectual; a few clever men are born there which we cannot help, but we will not 'vaccinate' it with genius; we will not put in a set of clever men for their lives who may as likely as not turn against us". this objection assumes that clever peers are just as likely to oppose the commons as stupid peers. but this i deny. most clever men who are in such a good place as the house of lords plainly is, will be very unwilling to lose it if they can help it; at the clear call of a great duty they might lose it, but only at such a call. and it does not take a clever man to see that systematic opposition of the commons is the only thing which can endanger the lords, or which will make an individual peer cease to be a peer. the greater you make the sense of the lords, the more they will see that their plain interest is to make friends of the plutocracy, and to be the chiefs of it, and not to wish to oppose the commons where that plutocracy rules. it is true that a completely new house of lords, mainly composed of men of ability, selected because they were able, might very likely attempt to make ability the predominant power in the state, and to rival, if not conquer, the house of commons, where the standard of intelligence is not much above the common english average. but in the present english world such a house of lords would soon lose all influence. people would say, "it was too clever by half," and in an englishman's mouth that means a very severe censure. the english people would think it grossly anomalous if their elected assembly of rich men were thwarted by a nominated assembly of talkers and writers. sensible men of substantial means are what we wish to be ruled by, and a peerage of genius would not compare with it in power. it is true, too, that at present some of the cleverest peers are not so ready as some others to agree with the commons. but it is not unnatural that persons of high rank and of great ability should be unwilling to bend to persons of lower rank, and of certainly not greater ability. a few of such peers (for they are very few) might say, "we had rather not have our peerage if we are to buy it at the price of yielding". but a life peer who had fought his way up to the peers, would never think so. young men who are born to rank may risk it, not middle-aged or old men who have earned their rank. a moderate number of life peers would almost always counsel moderation to the lords, and would almost always be right in counselling it. recent discussions have also brought into curious prominence another part of the constitution. i said in this book that it would very much surprise people if they were only told how many things the queen could do without consulting parliament, and it certainly has so proved, for when the queen abolished purchase in the army by an act of prerogative (after the lords had rejected the bill for doing so), there was a great and general astonishment. but this is nothing to what the queen can by law do without consulting parliament. not to mention other things, she could disband the army (by law she cannot engage more than a certain number of men, but she is not obliged to engage any men); she could dismiss all the officers, from the general commanding-in-chief downwards; she could dismiss all the sailors too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of cornwall, and begin a war for the conquest of brittany. she could make every citizen in the united kingdom, male or female, a peer; she could make every parish in the united kingdom a "university"; she could dismiss most of the civil servants; she could pardon all offenders. in a word, the queen could by prerogative upset all the action of civil government within the government, could disgrace the nation by a bad war or peace, and could, by disbanding our forces, whether land or sea, leave us defenceless against foreign nations. why do we not fear that she would do this, or any approach to it? because there are two checks--one ancient and coarse, the other modern and delicate. the first is the check of impeachment. any minister who advised the queen so to use her prerogative as to endanger the safety of the realm, might be impeached for high treason, and would be so. such a minister would, in our technical law, be said to have levied, or aided to levy, "war against the queen". this counsel to her so to use her prerogative would by the judge be declared to be an act of violence against herself, and in that peculiar but effectual way the offender could be condemned and executed. against all gross excesses of the prerogative this is a sufficient protection. but it would be no protection against minor mistakes; any error of judgment committed bona fide, and only entailing consequences which one person might say were good, and another say were bad, could not be so punished. it would be possible to impeach any minister who disbanded the queen's army, and it would be done for certain. but suppose a minister were to reduce the army or the navy much below the contemplated strength--suppose he were only to spend upon them one-third of the amount which parliament had permitted him to spend--suppose a minister of lord palmerston's principles were suddenly and while in office converted to the principles of mr. bright and mr. cobden, and were to act on those principles, he could not be impeached. the law of treason neither could nor ought to be enforced against an act which was an error of judgment, not of intention--which was in good faith intended not to impair the well-being of the state, but to promote and augment it. against such misuses of the prerogative our remedy is a change of ministry. and in general this works very well. every minister looks long before he incurs that penalty, and no one incurs it wantonly. but, nevertheless, there are two defects in it. the first is that it may not be a remedy at all; it may be only a punishment. a minister may risk his dismissal; he may do some act difficult to undo, and then all which may be left will be to remove and censure him. and the second is that it is only one house of parliament which has much to say to this remedy, such as it is; the house of commons only can remove a minister by a vote of censure. most of the ministries for thirty years have never possessed the confidence of the lords, and in such cases a vote of censure by the lords could therefore have but little weight; it would be simply the particular expression of a general political disapproval. it would be like a vote of censure on a liberal government by the carlton, or on a tory government by the reform club. and in no case has an adverse vote by the lords the same decisive effect as a vote of the commons; the lower house is the ruling and the choosing house, and if a government really possesses that, it thoroughly possesses nine-tenths of what it requires. the support of the lords is an aid and a luxury; that of the commons is a strict and indispensable necessary. these difficulties are particularly raised by questions of foreign policy. on most domestic subjects, either custom or legislation has limited the use of the prerogative. the mode of governing the country, according to the existing laws, is mostly worn into a rut, and most administrations move in it because it is easier to move there than anywhere else. most political crises--the decisive votes, which determine the fate of government--are generally either on questions of foreign policy or of new laws; and the questions of foreign policy come out generally in this way, that the government has already done something, and that it is for the one part of the legislature alone--for the house of commons, and not for the house of lords--to say whether they have or have not forfeited their place by the treaty they have made. i think every one must admit that this is not an arrangement which seems right on the face of it. treaties are quite as important as most laws, and to require the elaborate assent of representative assemblies to every word of the law, and not to consult them even as to the essence of the treaty, is prima facie ludicrous. in the older forms of the english constitution, this may have been quite right; the power was then really lodged in the crown, and because parliament met very seldom, and for other reasons, it was then necessary that, on a multitude of points, the crown should have much more power than is amply sufficient for it at present. but now the real power is not in the sovereign, it is in the prime minister and in the cabinet--that is, in the hands of a committee appointed by parliament, and of the chairman of that committee. now, beforehand, no one would have ventured to suggest that a committee of parliament on foreign relations should be able to commit the country to the greatest international obligations without consulting either parliament or the country. no other select committee has any comparable power; and considering how carefully we have fettered and limited the powers of all other subordinate authorities, our allowing so much discretionary power on matters peculiarly dangerous and peculiarly delicate to rest in the sole charge of one secret committee is exceedingly strange. no doubt it may be beneficial; many seeming anomalies are so, but at first sight it does not look right. i confess that i should see no advantage in it if our two chambers were sufficiently homogeneous and sufficiently harmonious. on the contrary, if those two chambers were as they ought to be, i should believe it to be a great defect. if the administration had in both houses a majority--not a mechanical majority ready to accept anything, but a fair and reasonable one, predisposed to think the government right, but not ready to find it to be so in the face of facts and in opposition to whatever might occur; if a good government were thus placed, i should think it decidedly better that the agreements of the administration with foreign powers should be submitted to parliament. they would then receive that which is best for all arrangements of business, an understanding and sympathising criticism, but still a criticism. the majority of the legislature, being well disposed to the government, would not "find" against it except it had really committed some big and plain mistake. but if the government had made such a mistake, certainly the majority of the legislature would find against it. in a country fit for parliamentary institutions, the partisanship of members of the legislature never comes in manifest opposition to the plain interest of the nation; if it did, the nation being (as are all nations capable of parliamentary institutions) constantly attentive to public affairs, would inflict on them the maximum parliamentary penalty at the next election and at many future elections. it would break their career. no english majority dare vote for an exceedingly bad treaty; it would rather desert its own leader than ensure its own ruin. and an english minority, inheriting a long experience of parliamentary affairs, would not be exceedingly ready to reject a treaty made with a foreign government. the leaders of an english opposition are very conversant with the school-boy maxim, "two can play at that fun". they know that the next time they are in office the same sort of sharp practice may be used against them, and therefore they will not use it. so strong is this predisposition, that not long since a subordinate member of the opposition declared that the "front benches" of the two sides of the house--that is, the leaders of the government and the leaders of the opposition--were in constant tacit league to suppress the objections of independent members. and what he said is often quite true. there are often seeming objections which are not real objections; at least, which are, in the particular cases, outweighed by counter-considerations; and these "independent members," having no real responsibility, not being likely to be hurt themselves if they make a mistake, are sure to blurt out, and to want to act upon. but the responsible heads of the party who may have to decide similar things, or even the same things themselves, will not permit it. they refuse, out of interest as well as out of patriotism, to engage the country in a permanent foreign scrape, to secure for themselves and their party a momentary home advantage. accordingly, a government which negotiated a treaty would feel that its treaty would be subject certainly to a scrutiny, but still to a candid and lenient scrutiny; that it would go before judges, of whom the majority were favourable, and among whom the most influential part of the minority were in this case much opposed to excessive antagonism. and this seems to be the best position in which negotiators can be placed, namely, that they should be sure to have to account to considerate and fair persons, but not to have to account to inconsiderate and unfair ones. at present the government which negotiates a treaty can hardly be said to be accountable to any one. it is sure to be subjected to vague censure. benjamin franklin said, "i have never known a peace made, even the most advantageous, that was not censured as inadequate, and the makers condemned as injudicious or corrupt. 'blessed are the peace-makers' is, i suppose, to be understood in the other world, for in this they are frequently cursed." and this is very often the view taken now in england of treaties. there being nothing practical in the opposition--nothing likely to hamper them hereafter--the leaders of opposition are nearly sure to suggest every objection. the thing is done and cannot be undone, and the most natural wish of the opposition leaders is to prove that if they had been in office, and it therefore had been theirs to do it, they could have done it much better. on the other hand, it is quite possible that there may be no real criticism on a treaty at all; or the treaty has been made by the government, and as it cannot be unmade by any one, the opposition may not think it worth while to say much about it. the government, therefore, is never certain of any criticism; on the contrary, it has a good chance of escaping criticism; but if there be any criticism the government must expect it to be bitter, sharp, and captious--made as an irresponsible objector would make it, and not as a responsible statesman, who may have to deal with a difficulty if he make it, and therefore will be cautious how he says anything which may make it. this is what happens in common cases; and in the uncommon--the ninety-ninth case in a hundred--in which the opposition hoped to turn out the government because of the alleged badness of the treaty they have made, the criticism is sure to be of the most undesirable character, and to say what is most offensive to foreign nations. all the practised acumen of anti-government writers and speakers is sure to be engaged in proving that england has been imposed upon--that, as was said in one case, "the moral and the intellectual qualities have been divided; that our negotiation had the moral, and the negotiation on the other side the intellectual," and so on. the whole pitch of party malice is then expended, because there is nothing to check the party in opposition. the treaty has been made, and though it may be censured, and the party which made it ousted, yet the difficulty it was meant to cure is cured, and the opposing party, if it takes office, will not have that difficulty to deal with. in abstract theory these defects in our present practice would seem exceedingly great, but in practice they are not so. english statesmen and english parties have really a great patriotism; they can rarely be persuaded even by their passions or their interest to do anything contrary to the real interest of england, or anything which would lower england in the eyes of foreign nations. and they would seriously hurt themselves if they did. but still these are the real tendencies of our present practice, and these are only prevented by qualities in the nation and qualities in our statesmen, which will just as much exist if we change our practice. it certainly would be in many ways advantageous to change it. if we require that in some form the assent of parliament shall be given to such treaties, we should have a real discussion prior to the making of such treaties. we should have the reasons for the treaty plainly stated, and also the reasons against it. at present, as we have seen, the discussion is unreal. the thing is done and cannot be altered; and what is said often ought not to be said because it is captious, and what is not said ought as often to be said because it is material. we should have a manlier and plainer way of dealing with foreign policy, if ministers were obliged to explain clearly their foreign contracts before they were valid, just as they have to explain their domestic proposals before they can become laws. the objections to this are, as far as i know, three, and three only. first, that it would not be always desirable for ministers to state clearly the motives which induced them to agree to foreign compacts. "treaties," it is said, "are in one great respect different from laws, they concern not only the government which binds, the nation so bound, but a third party too--a foreign country--and the feelings of that country are to be considered as well as our own. and that foreign country will, probably, in the present state of the world be a despotic one, where discussion is not practised, where it is not understood, where the expressions of different speakers are not accurately weighed, where undue offence may easily be given." this objection might be easily avoided by requiring that the discussion upon treaties in parliament like that discussion in the american senate should be "in secret session," and that no report should be published of it. but i should, for my own part, be rather disposed to risk a public debate. despotic nations now cannot understand england; it is to them an anomaly "chartered by providence"; they have been time out of mind puzzled by its institutions, vexed at its statesmen, and angry at its newspapers. a little more of such perplexity and such vexation does not seem to me a great evil. and if it be meant, as it often is meant, that the whole truth as to treaties cannot be spoken out, i answer, that neither can the whole truth as to laws. all important laws affect large "vested interests"; they touch great sources of political strength; and these great interests require to be treated as delicately, and with as nice a manipulation of language, as the feelings of any foreign country. a parliamentary minister is a man trained by elaborate practice not to blurt out crude things, and an english parliament is an assembly which particularly dislikes anything gauche or anything imprudent. they would still more dislike it if it hurt themselves and the country as well as the speaker. i am, too, disposed to deny entirely that there can be any treaty for which adequate reasons cannot be given to the english people, which the english people ought to make. a great deal of the reticence of diplomacy had, i think history shows, much better be spoken out. the worst families are those in which the members never really speak their minds to one another; they maintain an atmosphere of unreality, and every one always lives in an atmosphere of suppressed ill-feeling. it is the same with nations. the parties concerned would almost always be better for hearing the substantial reasons which induced the negotiators to make the treaty, and the negotiators would do their work much better, for half the ambiguities in treaties are caused by the negotiators not liking the fact or not taking the pains to put their own meaning distinctly before their own minds. and they would be obliged to make it plain if they had to defend it and argue on it before a great assembly. secondly, it may be objected to the change suggested that parliament is not always sitting, and that if treaties required its assent, it might have to be sometimes summoned out of season, or the treaties would have to be delayed. and this is as far as it goes a just objection, but i do not imagine that it goes far. the great bulk of treaties could wait a little without harm, and in the very few cases when urgent haste is necessary, an autumn session of parliament could well be justified, for the occasion must be of grave and critical importance. thirdly, it may be said that if we required the consent of both houses of parliament to foreign treaties before they were valid we should much augment the power of the house of lords. and this is also, i think, a just objection as far as it goes. the house of lords, as it cannot turn out the ministry for making treaties, has in no case a decisive weight in foreign policy, though its debates on them are often excellent; and there is a real danger at present in giving it such weight. they are not under the same guidance as the house of commons. in the house of commons, of necessity, the ministry has a majority, and the majority will agree to the treaties the leaders have made if they fairly can. they will not be anxious to disagree with them. but the majority of the house of lords may always be, and has lately been generally an opposition majority, and therefore the treaty may be submitted to critics exactly pledged to opposite views. it might be like submitting the design of an architect known to hold "mediaeval principles" to a committee wedded to "classical principles". still, upon the whole, i think the augmentation of the power of the peers might be risked without real fear of serious harm. our present practice, as has been explained, only works because of the good sense of those by whom it is worked, and the new practice would have to rely on a similar good sense and practicality too. the house of lords must deal with the assent to treaties as they do with the assent to laws; they must defer to the voice of the country and the authority of the commons even in cases where their own judgment might guide them otherwise. in very vital treaties probably, being englishmen, they would be of the same mind as the rest of englishmen. if in such cases they showed a reluctance to act as the people wished, they would have the same lesson taught them as on vital and exciting questions of domestic legislation, and the case is not so likely to happen, for on these internal and organic questions the interest and the feeling of the peers is often presumably opposed to that of other classes--they may be anxious not to relinquish the very power which other classes are anxious to acquire; but in foreign policy there is no similar antagonism of interest--a peer and a non-peer have presumably in that matter the same interest and the same wishes. probably, if it were considered to be desirable to give to parliament a more direct control over questions of foreign policy than it possesses now, the better way would be not to require a formal vote to the treaty clause by clause. this would entail too much time, and would lead to unnecessary changes in minor details. it would be enough to let the treaty be laid upon the table of both houses, say for fourteen days, and to acquire validity unless objected to by one house or other before that interval had expired. ii. this is all which i think i need say on the domestic events which have changed, or suggested changes, in the english constitution since this book was written. but there are also some foreign events which have illustrated it, and of these i should like to say a few words. naturally, the most striking of these illustrative changes comes from france. since france has always been trying political experiments, from which others may profit much, though as yet she herself has profited little. she is now trying one singularly illustrative of the english constitution. when the first edition of this book was published i had great difficulty in persuading many people that it was possible in a non-monarchical state, for the real chief of the practical executive--the premier as we should call him--to be nominated and to be removable by the vote of the national assembly. the united states and its copies were the only present and familiar republics, and in these the system was exactly opposite. the executive was there appointed by the people as the legislature was too. no conspicuous example of any other sort of republic then existed. but now france has given an example--m. thiers is (with one exception) just the chef du pouvoir executif that i endeavoured more than once in this book to describe. he is appointed by and is removable by the assembly. he comes down and speaks in it just as our premier does; he is responsible for managing it just as our premier is. no one can any longer doubt the possibility of a republic in which the executive and the legislative authorities were united and fixed; no one can assert such union to be the incommunicable attribute of a constitutional monarchy. but, unfortunately, we can as yet only infer from this experiment that such a constitution is possible; we cannot as yet say whether it will be bad or good. the circumstances are very peculiar, and that in three ways. first, the trial of a specially parliamentary republic, of a republic where parliament appoints the minister, is made in a nation which has, to say the least of it, no peculiar aptitude for parliamentary government; which has possibly a peculiar inaptitude for it. in the last but one of these essays i have tried to describe one of the mental conditions of parliamentary government, which i call "rationality," by which i do not mean reasoning power, but rather the power of hearing the reasons of others, of comparing them quietly with one's own reasons, and then being guided by the result. but a french assembly is not easy to reason with. every assembly is divided into parties and into sections of parties, and in france each party, almost every section of a party, begins not to clamour but to scream, and to scream as only frenchmen can, as soon as it hears anything which it particularly dislikes. with an assembly in this temper, real discussion is impossible, and parliamentary government is impossible too, because the parliament can neither choose men nor measures. the french assemblies under the restored monarchy seem to have been quieter, probably because being elected from a limited constituency they did not contain so many sections of opinion; they had fewer irritants and fewer species of irritability. but the assemblies of the ' republic were disorderly in the extreme. i saw the last myself, and can certify that steady discussion upon a critical point was not possible in it. there was not an audience willing to hear. the assembly now sitting at versailles is undoubtedly also, at times, most tumultuous, and a parliamentary government in which it governs must be under a peculiar difficulty, because as a sovereign it is unstable, capricious, and unruly. the difficulty is the greater because there is no check, or little, from the french nation upon the assembly. the french, as a nation, do not care for or appreciate parliamentary government. i have endeavoured to explain how difficult it is for inexperienced mankind to take to such a government; how much more natural, that is, how much more easy to uneducated men is loyalty to a monarch. a nation which does not expect good from a parliament, cannot check or punish a parliament. france expects, i fear, too little from her parliaments ever to get what she ought. now that the suffrage is universal, the average intellect and the average culture of the constituent bodies are excessively low; and even such mind and culture as there is has long been enslaved to authority; the french peasant cares more for standing well with his present prefet than for anything else whatever; he is far too ignorant to check and watch his parliament, and far too timid to think of doing either if the executive authority nearest to him does not like it. the experiment of a strictly parliamentary republic--of a republic where the parliament appoints the executive--is being tried in france at an extreme disadvantage, because in france a parliament is unusually likely to be bad, and unusually likely also to be free enough to show its badness. secondly, the present polity of france is not a copy of the whole effective part of the british constitution, but only a part of it. by our constitution nominally the queen, but really the prime minister, has the power of dissolving the assembly. but m. thiers has no such power; and therefore, under ordinary circumstances, i believe, the policy would soon become unmanageable. the result would be, as i have tried to explain, that the assembly would be always changing its ministry, that having no reason to fear the penalty which that change so often brings in england, they would be ready to make it once a month. caprice is the characteristic vice of miscellaneous assemblies, and without some check their selection would be unceasingly mutable. this peculiar danger of the present constitution of france has however been prevented by its peculiar circumstances. the assembly have not been inclined to remove m. thiers, because in their lamentable present position they could not replace m. thiers. he has a monopoly of the necessary reputation. it is the empire--the empire which he always opposed--that has done him this kindness. for twenty years no great political reputation could arise in france. the emperor governed and no one member could show a capacity for government. m. rouher, though of vast real ability, was in the popular idea only the emperor's agent; and even had it been otherwise, m. rouher, the one great man of imperialism, could not have been selected as a head of the government, at a moment of the greatest reaction against the empire. of the chiefs before the twenty years' silence, of the eminent men known to be able to handle parliaments and to govern parliaments, m. thiers was the only one still physically able to begin again to do so. the miracle is, that at seventy-four even he should still be able. as no other great chief of the parliament regime existed, m. thiers is not only the best choice, but the only choice. if he were taken away, it would be most difficult to make any other choice, and that difficulty keeps him where he is. at every crisis the assembly feels that after m. thiers "the deluge," and he lives upon that feeling. a change of the president, though legally simple, is in practice all but impossible; because all know that such a change might be a change, not only of the president, but of much more too: that very probably it might be a change of the polity--that it might bring in a monarchy or an empire. lastly, by a natural consequence of the position, m. thiers does not govern as a parliamentary premier governs. he is not, he boasts that he is not, the head of a party. on the contrary, being the one person essential to all parties, he selects ministers from all parties, he constructs a cabinet in which no one minister agrees with any other in anything, and with all the members of which he himself frequently disagrees. the selection is quite in his hand. ordinarily a parliamentary premier cannot choose; he is brought in by a party; he is maintained in office by a party; and that party requires that as they aid him, he shall aid them; that as they give him the very best thing in the state, he shall give them the next best things. but m. thiers is under no such restriction. he can choose as he likes, and does choose. neither in the selection of his cabinet nor in the management of the chamber, is m. thiers guided as a similar person in common circumstances would have to be guided. he is the exception of a moment; he is not the example of a lasting condition. for these reasons, though we may use the present constitution of france as a useful aid to our imaginations, in conceiving of a purely parliamentary republic, of a monarchy minus the monarch, we must not think of it as much more. it is too singular in its nature and too peculiar in its accidents to be a guide to anything except itself. in this essay i made many remarks on the american constitution, in comparison with the english; and as to the american constitution we have had a whole world of experience since i first wrote. my great object was to contrast the office of president as an executive officer and to compare it with that of a prime minister; and i devoted much space to showing that in one principal respect the english system is by far the best. the english premier being appointed by the selection, and being removable at the pleasure, of the preponderant legislative assembly, is sure to be able to rely on that assembly. if he wants legislation to aid his policy he can obtain that legislation; he can carry out that policy. but the american president has no similar security. he is elected in one way, at one time, and congress (no matter which house) is elected in another way, at another time. the two have nothing to bind them together, and in matter of fact, they continually disagree. this was written in the time of mr. lincoln, when congress, the president, and all the north were united as one man in the war against the south. there was then no patent instance of mere disunion. but between the time when the essays were first written in the fortnightly, and their subsequent junction into a book, mr. lincoln was assassinated, and mr. johnson, the vice-president, became president, and so continued for nearly four years. at such a time the characteristic evils of the presidential system were shown most conspicuously. the president and the assembly, so far from being (as it is essential to good government that they should be) on terms of close union, were not on terms of common courtesy. so far from being capable of a continuous and concerted co-operation they were all the while trying to thwart one another. he had one plan for the pacification of the south and they another; they would have nothing to say to his plans, and he vetoed their plans as long as the constitution permitted, and when they were, in spite of him, carried, he, as far as he could (and this was very much), embarrassed them in action. the quarrel in most countries would have gone beyond the law, and come to blows; even in america, the most law-loving of countries, it went as far as possible within the law. mr. johnson described the most popular branch of the legislature--the house of representatives--as a body "hanging on the verge of government"; and that house impeached him criminally, in the hope that in that way they might get rid of him civilly. nothing could be so conclusive against the american constitution, as a constitution, as that incident. a hostile legislature and a hostile executive were so tied together, that the legislature tried, and tried in vain, to rid itself of the executive by accusing it of illegal practices. the legislature was so afraid of the president's legal power that it unfairly accused him of acting beyond the law. and the blame thus cast on the american constitution is so much praise to be given to the american political character. few nations, perhaps scarcely any nation, could have borne such a trial so easily and so perfectly. this was the most striking instance of disunion between the president and the congress that has ever yet occurred, and which probably will ever occur. probably for very many years the united states will have great and painful reason to remember that at the moment of all their history, when it was most important to them to collect and concentrate all the strength and wisdom of their policy on the pacification of the south, that policy was divided by a strife in the last degree unseemly and degrading. but it will be for a competent historian hereafter to trace out this accurately and in detail; the time is yet too recent, and i cannot pretend that i know enough to do so. i cannot venture myself to draw the full lessons from these events; i can only predict that when they are drawn, those lessons will be most important, and most interesting. there is, however, one series of events which have happened in america since the beginning of the civil war, and since the first publication of these essays, on which i should wish to say something in detail--i mean the financial events. these lie within the scope of my peculiar studies, and it is comparatively easy to judge of them, since whatever may be the case with refined statistical reasoning, the great results of money matters speak to and interest all mankind. and every incident in this part of american financial history exemplifies the contrast between a parliamentary and presidential government. the distinguishing quality of parliamentary government is, that in each stage of a public transaction there is a discussion; that the public assist at this discussion; that it can, through parliament, turn out an administration which is not doing as it likes, and can put in an administration which will do as it likes. but the characteristic of a presidential government is, in a multitude of cases, that there is no such discussion; that when there is a discussion the fate of government does not turn upon it, and, therefore, the people do not attend to it; that upon the whole the administration itself is pretty much doing as it likes, and neglecting as it likes, subject always to the check that it must not too much offend the mass of the nation. the nation commonly does not attend, but if by gigantic blunders you make it attend, it will remember it and turn you out when its time comes; it will show you that your power is short, and so on the instant weaken that power; it will make your present life in office unbearable and uncomfortable by the hundred modes in which a free people can, without ceasing, act upon the rulers which it elected yesterday, and will have to reject or re-elect to-morrow. in finance the most striking effect in america has, on the first view of it, certainly been good. it has enabled the government to obtain and to keep a vast surplus of revenue over expenditure. even before the civil war it did this--from to . mr. wells tells us that, strange as it may seem, "there was not a single year in which the unexpended balance in the national treasury--derived from various sources--at the end of the year, was not in excess of the total expenditure of the preceding year; while in not a few years the unexpended balance was absolutely greater than the sum of the entire expenditure of the twelve months preceding". but this history before the war is nothing to what has happened since. the following are the surpluses of revenue over expenditure since the end of the civil war:-- year ending june . surplus. (pounds) . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , . . . . . . . . , , no one who knows anything of the working of parliamentary government, will for a moment imagine that any parliament would have allowed any executive to keep a surplus of this magnitude. in england, after the french war, the government of that day, which had brought it to a happy end, which had the glory of waterloo, which was in consequence exceedingly strong, which had besides elements of strength from close boroughs and treasury influence such as certainly no government has ever had since, and such perhaps as no government ever had before--that government proposed to keep a moderate surplus and to apply it to the reduction of the debt, but even this the english parliament would not endure. the administration with all its power derived both from good and evil had to yield; the income tax was abolished, with it went the surplus, and with the surplus all chance of any considerable reduction of the debt for that time. in truth taxation is so painful that in a sensitive community which has strong organs of expression and action, the maintenance of a great surplus is excessively difficult. the opposition will always say that it is unnecessary, is uncalled for, is injudicious; the cry will be echoed in every constituency; there will be a series of large meetings in the great cities; even in the smaller constituencies there will mostly be smaller meetings; every member of parliament will be pressed upon by those who elect him; upon this point there will be no distinction between town and country, the country gentleman and the farmer disliking high taxes as much as any in the towns. to maintain a great surplus by heavy taxes to pay off debt has never yet in this country been possible, and to maintain a surplus of the american magnitude would be plainly impossible. some part of the difference between england and america arises undoubtedly not from political causes but from economical. america is not a country sensitive to taxes; no great country has perhaps ever been so unsensitive in this respect; certainly she is far less sensitive than england. in reality america is too rich; daily industry there is too common, too skilful, and too productive, for her to care much for fiscal burdens. she is applying all the resources of science and skill and trained labour, which have been in long ages painfully acquired in old countries, to develop with great speed the richest soil and the richest mines of new countries; and the result is untold wealth. even under a parliamentary government such a community could and would bear taxation much more easily than englishmen ever would. but difference of physical character in this respect is of little moment in comparison with difference of political constitution. if america was under a parliamentary government, she would soon be convinced that in maintaining this great surplus and in paying this high taxation she would be doing herself great harm. she is not performing a great duty, but perpetrating a great injustice. she is injuring posterity by crippling and displacing industry, far more than she is aiding it by reducing the taxes it will have to pay. in the first place, the maintenance of the present high taxation compels the retention of many taxes which are contrary to the maxims of free-trade. enormous customs duties are necessary, and it would be all but impossible to impose equal excise duties even if the americans desired it. in consequence, besides what the americans pay to the government, they are paying a great deal to some of their own citizens, and so are rearing a set of industries which never ought to have existed, which are bad speculations at present because other industries would have paid better, and which may cause a great loss out of pocket hereafter when the debt is paid off and the fostering tax withdrawn. then probably industry will return to its natural channel, the artificial trade will be first depressed, then discontinued, and the fixed capital employed in the trade will all be depreciated and much of it be worthless. secondly, all taxes on trade and manufacture are injurious in various ways to them. you cannot put on a great series of such duties without cramping trade in a hundred ways and without diminishing their productiveness exceedingly. america is now working in heavy fetters, and it would probably be better for her to lighten those fetters even though a generation or two should have to pay rather higher taxes. those generations would really benefit, because they would be so much richer that the slightly increased cost of government would never be perceived. at any rate, under a parliamentary government this doctrine would have been incessantly inculcated; a whole party would have made it their business to preach it, would have made incessant small motions in parliament about it, which is the way to popularise their view. and in the end i do not doubt that they would have prevailed. they would have had to teach a lesson both pleasant and true, and such lessons are soon learned. on the whole, therefore, the result of the comparison is that a presidential government makes it much easier than the parliamentary to maintain a great surplus of income over expenditure, but that it does not give the same facility for examining whether it be good or not good to maintain a surplus, and, therefore, that it works blindly, maintaining surpluses when they do extreme harm just as much as when they are very beneficial. in this point the contrast of presidential with parliamentary government is mixed; one of the defects of parliamentary government probably is the difficulty under it of maintaining a surplus revenue to discharge debt, and this defect presidential government escapes, though at the cost of being likely to maintain that surplus upon inexpedient occasions as well as upon expedient. but in all other respects a parliamentary government has in finance an unmixed advantage over the presidential in the incessant discussion. though in one single case it produces evil as well as good, in most cases it produces good only. and three of these cases are illustrated by recent american experience. first, as mr. goldwin smith--no unfavourable judge of anything american--justly said some years since, the capital error made by the united states government was the "legal tender act," as it is called, by which it made inconvertible paper notes issued by the treasury the sole circulating medium of the country. the temptation to do this was very great, because it gave at once a great war fund when it was needed, and with no pain to any one. if the notes of a government supersede the metallic currency medium of a country to the extent of $ , , , this is equivalent to a recent loan of $ , , to the government for all purposes within the country. whenever the precious metals are not required, and for domestic purposes in such a case they are not required, notes will buy what the government want, and it can buy to the extent of its issue. but, like all easy expedients out of a great difficulty, it is accompanied by the greatest evils; if it had not been so, it would have been the regular device in such cases, and the difficulty would have been no difficulty at all; there would have been a known easy way out of it. as is well known, inconvertible paper issued by government is sure to be issued in great quantities, as the american currency soon was; it is sure to be depreciated as against coin; it is sure to disturb values and to derange markets; it is certain to defraud the lender; it is certain to give the borrower more than he ought to have. in the case of america there was a further evil. being a new country, she ought in her times of financial want to borrow of old countries; but the old countries were frightened by the probable issue of unlimited inconvertible paper, and they would not lend a shilling. much more than the mercantile credit of america was thus lost. the great commercial houses in england are the most natural and most effectual conveyers of intelligence from other countries to europe. if they had been financially interested in giving in a sound report as to the progress of the war, a sound report we should have had. but as the northern states raised no loans in lombard street (and could raise none because of their vicious paper money), lombard street did not care about them, and england was very imperfectly informed of the progress of the civil struggle, and on the whole matter, which was then new and very complex, england had to judge without having her usual materials for judgment, and (since the guidance of the "city" on political matter is very quietly and imperceptibly given) without knowing she had not those materials. of course, this error might have been committed, and perhaps would have been committed under a parliamentary government. but if it had, its effects would ere long have been thoroughly searched into and effectually frustrated. the whole force of the greatest inquiring machine and the greatest discussing machine which the world has ever known would have been directed to this subject. in a year or two the american public would have had it forced upon them in every form till they must have comprehended it. but under the presidential form of government, and owing to the inferior power of generating discussion, the information given to the american people has been imperfect in the extreme. and in consequence, after nearly ten years of painful experience, they do not now understand how much they have suffered from their inconvertible currency. but the mode in which the presidential government of america managed its taxation during the civil war, is even a more striking example of its defects. mr. wells tells us:-- "in the outset all direct or internal taxation was avoided, there having been apparently an apprehension on the part of congress, that inasmuch as the people had never been accustomed to it, and as all machinery for assessment and collection was wholly wanting, its adoption would create discontent, and thereby interfere with a vigorous prosecution of hostilities. congress, therefore, confined itself at first to the enactment of measures looking to an increase of revenue from the increase of indirect taxes upon imports; and it was not until four months after the actual outbreak of hostilities that a direct tax of $ , , per annum was apportioned among the states, and an income tax of per cent. on the excess of all incomes over $ was provided for; the first being made to take effect practically eight, and the second ten months after date of enactment. such laws of course took effect, and became immediately operative in the loyal states only, and produced but comparatively little revenue; and although the range of taxation was soon extended, the whole receipts from all sources by the government for the second year of the war, from excise, income, stamp, and all other internal taxes, were less than $ , , ; and that, too, at a time when the expenditures were in excess $ , , per month, or at the rate of over $ , , per annum. and as showing how novel was this whole subject of direct and internal taxation to the people, and how completely the government officials were lacking in all experience in respect to it, the following incident may be noted. the secretary of the treasury, in his report for , stated that, with a view of determining his resources, he employed a very competent person, with the aid of practical men, to estimate the probable amount of revenue to be derived from each department of internal taxation for the previous year. the estimate arrived at was $ , , , but the actual receipts were only $ , , ." now, no doubt, this might have happened under a parliamentary government. but, then, many members of parliament, the entire opposition in parliament, would have been active to unravel the matter. all the principles of finance would have been worked and propounded. the light would have come from above, not from below--it would have come from parliament to the nation instead of from the nation to parliament but exactly the reverse happened in america. mr. wells goes on to say:-- "the people of the loyal states were, however, more determined and in earnest in respect to this matter of taxation than were their rulers; and before long the popular discontent at the existing state of things was openly manifest. every where the opinion was expressed that taxation in all possible forms should immediately, and to the largest extent, be made effective and imperative; and congress spurred up, and right fully relying on public sentiment to sustain their action, at last took up the matter resolutely and in earnest, and devised and inaugurated a system of internal and direct taxation, which for its universality and peculiarities has probably no parallel in anything which has heretofore been recorded in civil history, or is likely to be experienced hereafter. the one necessity of the situation was revenue, and to obtain it speedily and in large amounts through taxation the only principle recognised--if it can be called a principle--was akin to that recommended to the traditionary irishman on his visit to donnybrook fair, 'wherever you see a head hit it'. wherever you find an article, a product, a trade, a profession, or a source of income, tax it! and so an edict went forth to this effect, and the people cheerfully submitted. incomes under $ , were taxed per cent., with an exemption of $ and house rent actually paid; these exemptions being allowed on this ground, that they represented an amount sufficient at the time to enable a small family to procure the bare necessaries of life, and thus take out from the operation of the law all those who were dependent upon each day's earnings to supply each day's needs. incomes in excess of $ , and not in excess of $ , were taxed / per cent. in addition; and incomes over $ , per cent. additional, without any abeyance or exemptions whatever." now this is all contrary to and worse than what would have happened under a parliamentary government. the delay to tax would not have occurred under it: the movement by the country to get taxation would never have been necessary under it. the excessive taxation accordingly imposed would not have been permitted under it. the last point i think i need not labour at length. the evils of a bad tax are quite sure to be pressed upon the ears of parliament in season and out of season; the few persons who have to pay it are thoroughly certain to make themselves heard. the sort of taxation tried in america, that of taxing everything, and seeing what every thing would yield, could not have been tried under a government delicately and quickly sensitive to public opinion. i do not apologise for dwelling at length upon these points, for the subject is one of transcendent importance. the practical choice of first-rate nations is between the presidential government and the parliamentary; no state can be first-rate which has not a government by discussion, and those are the only two existing species of that government. it is between them that a nation which has to choose its government must choose. and nothing therefore can be more important than to compare the two, and to decide upon the testimony of experience, and by facts, which of them is the better. the poplars, wimbledon: june , . no. ii. the cabinet. "on all great subjects," says mr. mill, "much remains to be said," and of none is this more true than of the english constitution. the literature which has accumulated upon it is huge. but an observer who looks at the living reality will wonder at the contrast to the paper description. he will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory. it was natural--perhaps inevitable--that such an under growth of irrelevant ideas should gather round the british constitution. language is the tradition of nations; each generation describes what it sees, but it uses words transmitted from the past. when a great entity like the british constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words--of maxims once true, but of which the truth is ceasing or has ceased. as a man's family go on muttering in his maturity incorrect phrases derived from a just observation of his early youth, so, in the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now true no longer. or, if i may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered. there are two descriptions of the english constitution which have exercised immense influence, but which are erroneous. first, it is laid down as a principle of the english polity, that in it the legislative, the executive, and the judicial powers are quite divided--that each is entrusted to a separate person or set of persons--that no one of these can at all interfere with the work of the other. there has been much eloquence expended in explaining how the rough genius of the english people, even in the middle ages, when it was especially rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they had hardly hoped to see except on paper. secondly, it is insisted that the peculiar excellence of the british constitution lies in a balanced union of three powers. it is said that the monarchical element, the aristocratic element, and the democratic element, have each a share in the supreme sovereignty, and that the assent of all three is necessary to the action of that sovereignty. kings, lords, and commons, by this theory, are alleged to be not only the outward form, but the inner moving essence, the vitality of the constitution. a great theory, called the theory of "checks and balances," pervades an immense part of political literature, and much of it is collected from or supported by english experience. monarchy, it is said, has some faults, some bad tendencies, aristocracy others, democracy, again, others; but england has shown that a government can be constructed in which these evil tendencies exactly check, balance, and destroy one another--in which a good whole is constructed not simply in spite of, but by means of, the counteracting defects of the constituent parts. accordingly, it is believed that the principal characteristics of the english constitution are inapplicable in countries where the materials for a monarchy or an aristocracy do not exist. that constitution is conceived to be the best imaginable use of the political elements which the great majority of states in modern europe inherited from the mediaeval period. it is believed that out of these materials nothing better can be made than the english constitution; but it is also believed that the essential parts of the english constitution cannot be made except from these materials. now these elements are the accidents of a period and a region; they belong only to one or two centuries in human history, and to a few countries. the united states could not have become monarchical, even if the constitutional convention had decreed it, even if the component states had ratified it. the mystic reverence, the religious allegiance, which are essential to a true monarchy, are imaginative sentiments that no legislature can manufacture in any people. these semi-filial feelings in government are inherited just as the true filial feelings in common life. you might as well adopt a father as make a monarchy: the special sentiment belonging to the one is as incapable of voluntary creation as the peculiar affection belonging to the other. if the practical part of the english constitution could only be made out of a curious accumulation of mediaeval materials, its interest would be half historical, and its imitability very confined. no one can approach to an understanding of the english institutions, or of others, which, being the growth of many centuries, exercise a wide sway over mixed populations, unless he divide them into two classes. in such constitutions there are two parts (not indeed separable with microscopic accuracy, for the genius of great affairs abhors nicety of division): first, those which excite and preserve the reverence of the population--the dignified parts, if i may so call them; and next, the efficient parts--those by which it, in fact, works and rules. there are two great objects which every constitution must attain to be successful, which every old and celebrated one must have wonderfully achieved: every constitution must first gain authority, and then use authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government. there are indeed practical men who reject the dignified parts of government. they say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless. and other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed. but both schools are in error. the dignified parts of government are those which bring it force--which attract its motive power. the efficient parts only employ that power. the comely parts of a government have need, for they are those upon which its vital strength depends. they may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. they raise the army, though they do not win the battle. doubtless, if all subjects of the same government only thought of what was useful to them, and if they all thought the same thing useful, and all thought that same thing could be attained in the same way, the efficient members of a constitution would suffice, and no impressive adjuncts would be needed. but the world in which we live is organised far otherwise. the most strange fact, though the most certain in nature, is the unequal development of the human race. if we look back to the early ages of mankind, such as we seem in the faint distance to see them--if we call up the image of those dismal tribes in lake villages, or on wretched beaches--scarcely equal to the commonest material needs, cutting down trees slowly and painfully with stone tools, hardly resisting the attacks of huge, fierce animals--without culture, without leisure, without poetry, almost without thought--destitute of morality, with only a sort of magic for religion; and if we compare that imagined life with the actual life of europe now, we are overwhelmed at the wide contrast--we can scarcely conceive ourselves to be of the same race as those in the far distance. there used to be a notion--not so much widely asserted as deeply implanted, rather pervadingly latent than commonly apparent in political philosophy--that in a little while, perhaps ten years or so, all human beings might, without extraordinary appliances, be brought to the same level. but now, when we see by the painful history of mankind at what point we began, by what slow toil, what favourable circumstances, what accumulated achievements, civilised man has become at all worthy in any degree so to call himself--when we realise the tedium of history and the painfulness of results--our perceptions are sharpened as to the relative steps of our long and gradual progress. we have in a great community like england crowds of people scarcely more civilised than the majority of two thousand years ago; we have others, even more numerous, such as the best people were a thousand years since. the lower orders, the middle orders, are still, when tried by what is the standard of the educated "ten thousand," narrow-minded, unintelligent, incurious. it is useless to pile up abstract words. those who doubt should go out into their kitchens. let an accomplished man try what seems to him most obvious, most certain, most palpable in intellectual matters, upon the housemaid and the footman, and he will find that what he says seems unintelligible, confused, and erroneous--that his audience think him mad and wild when he is speaking what is in his own sphere of thought the dullest platitude of cautious soberness. great communities are like great mountains--they have in them the primary, secondary, and tertiary strata of human progress; the characteristics of the lower regions resemble the life of old times rather than the present life of the higher regions. and a philosophy which does not ceaselessly remember, which does not continually obtrude, the palpable differences of the various parts, will be a theory radically false, because it has omitted a capital reality--will be a theory essentially misleading, because it will lead men to expect what does not exist, and not to anticipate that which they will find. every one knows these plain facts, but by no means every one has traced their political importance. when a state is constituted thus, it is not true that the lower classes will be wholly absorbed in the useful; on the contrary, they do not like anything so poor. no orator ever made an impression by appealing to men as to their plainest physical wants, except when he could allege that those wants were caused by some one's tyranny. but thousands have made the greatest impression by appealing to some vague dream of glory, or empire, or nationality. the ruder sort of men--that is, men at one stage of rudeness--will sacrifice all they hope for, all they have, themselves, for what is called an idea--for some attraction which seems to transcend reality, which aspires to elevate men by an interest higher, deeper, wider than that of ordinary life. but this order of men are uninterested in the plain, palpable ends of government; they do not prize them; they do not in the least comprehend how they should be attained. it is very natural, therefore, that the most useful parts of the structure of government should by no means be those which excite the most reverence. the elements which excite the most easy reverence will be the theatrical elements--those which appeal to the senses, which claim to be embodiments of the greatest human ideas, which boast in some cases of far more than human origin. that which is mystic in its claims; that which is occult in its mode of action; that which is brilliant to the eye; that which is seen vividly for a moment, and then is seen no more; that which is hidden and unhidden; that which is specious, and yet interesting, palpable in its seeming, and yet professing to be more than palpable in its results; this, howsoever its form may change, or however we may define it or describe it, is the sort of thing--the only sort--which yet comes home to the mass of men. so far from the dignified parts of a constitution being necessarily the most useful, they are likely, according to outside presumption, to be the least so; for they are likely to be adjusted to the lowest orders--those likely to care least and judge worst about what is useful. there is another reason which, in an old constitution like that of england, is hardly less important. the most intellectual of men are moved quite as much by the circumstances which they are used to as by their own will. the active voluntary part of a man is very small, and if it were not economised by a sleepy kind of habit, its results would be null. we could not do every day out of our own heads all we have to do. we should accomplish nothing, for all our energies would be frittered away in minor attempts at petty improvement. one man, too, would go off from the known track in one direction, and one in another; so that when a crisis came requiring massed combination, no two men would be near enough to act together. it is the dull traditional habit of mankind that guides most men's actions, and is the steady frame in which each new artist must set the picture that he paints. and all this traditional part of human nature is, ex vi termini, most easily impressed and acted on by that which is handed down. other things being equal, yesterday's institutions are by far the best for to-day; they are the most ready, the most influential, the most easy to get obeyed, the most likely to retain the reverence which they alone inherit, and which every other must win. the most imposing institutions of mankind are the oldest; and yet so changing is the world, so fluctuating are its needs, so apt to lose inward force, though retaining out ward strength, are its best instruments, that we must not expect the oldest institutions to be now the most efficient. we must expect what is venerable to acquire influence because of its inherent dignity; but we must not expect it to use that influence so well as new creations apt for the modern world, instinct with its spirit, and fitting closely to its life. the brief description of the characteristic merit of the english constitution is, that its dignified parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part, at least when in great and critical action, is decidedly simple and rather modern. we have made, or rather stumbled on, a constitution which--though full of every species of incidental defect, though of the worst workmanship in all out-of-the-way matters of any constitution in the world--yet has two capital merits: it contains a simple efficient part which, on occasion, and when wanted, can work more simply and easily, and better, than any instrument of government that has yet been tried; and it contains likewise historical, complex, august, theatrical parts, which it has inherited from a long past--which take the multitude--which guide by an insensible but an omnipotent influence the associations of its subjects. its essence is strong with the strength of modern simplicity; its exterior is august with the gothic grandeur of a more imposing age. its simple essence may, mutatis mutandis, be transplanted to many very various countries, but its august outside--what most men think it is--is narrowly confined to nations with an analogous history and similar political materials. the efficient secret of the english constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. no doubt by the traditional theory, as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. the connecting link is the cabinet. by that new word we mean a committee of the legislative body selected to be the executive body. the legislature has many committees, but this is its greatest. it chooses for this, its main committee, the men in whom it has most confidence. it does not, it is true, choose them directly; but it is nearly omnipotent in choosing them indirectly. a century ago the crown had a real choice of ministers, though it had no longer a choice in policy. during the long reign of sir r. walpole he was obliged not only to manage parliament but to manage the palace. he was obliged to take care that some court intrigue did not expel him from his place. the nation then selected the english policy, but the crown chose the english ministers. they were not only in name, as now, but in fact, the queen's servants. remnants, important remnants, of this great prerogative still remain. the discriminating favour of william iv. made lord melbourne head of the whig party when he was only one of several rivals. at the death of lord palmerston it is very likely that the queen may have the opportunity of fairly choosing between two, if not three statesmen. but, as a rule, the nominal prime minister is chosen by the legislature, and the real prime minister for most purposes--the leader of the house of commons--almost without exception is so. there is nearly always some one man plainly selected by the voice of the predominant party in the predominant house of the legislature to head that party, and consequently to rule the nation. we have in england an elective first magistrate as truly as the americans have an elective first magistrate. the queen is only at the head of the dignified part of the constitution. the prime minister is at the head of the efficient part. the crown is, according to the saying, the "fountain of honour"; but the treasury is the spring of business. nevertheless, our first magistrate differs from the american. he is not elected directly by the people; he is elected by the representatives of the people. he is an example of "double election". the legislature chosen, in name, to make laws, in fact finds its principal business in making and in keeping an executive. the leading minister so selected has to choose his associates, but he only chooses among a charmed circle. the position of most men in parliament forbids their being invited to the cabinet; the position of a few men ensures their being invited. between the compulsory list whom he must take, and the impossible list whom he cannot take, a prime minister's independent choice in the formation of a cabinet is not very large; it extends rather to the division of the cabinet offices than to the choice of cabinet ministers. parliament and the nation have pretty well settled who shall have the first places; but they have not discriminated with the same accuracy which man shall have which place. the highest patronage of a prime minister is, of course, a considerable power, though it is exercised under close and imperative restrictions--though it is far less than it seems to be when stated in theory, or looked at from a distance. the cabinet, in a word, is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation. the particular mode in which the english ministers are selected; the fiction that they are, in any political sense, the queen's servants; the rule which limits the choice of the cabinet to the members of the legislature--are accidents unessential to its definition--historical incidents separable from its nature. its characteristic is that it should be chosen by the legislature out of persons agreeable to and trusted by the legislature. naturally these are principally its own members--but they need not be exclusively so. a cabinet which included persons not members of the legislative assembly might still perform all useful duties. indeed the peers, who constitute a large element in modern cabinets, are members, now-a-days, only of a subordinate assembly. the house of lords still exercises several useful functions; but the ruling influence--the deciding faculty--has passed to what, using the language of old times, we still call the lower house--to an assembly which, though inferior as a dignified institution, is superior as an efficient institution. a principal advantage of the house of lords in the present age indeed consists in its thus acting as a reservoir of cabinet ministers. unless the composition of the house of commons were improved, or unless the rules requiring cabinet ministers to be members of the legislature were relaxed, it would undoubtedly be difficult to find, without the lords, a sufficient supply of chief ministers. but the detail of the composition of a cabinet, and the precise method of its choice, are not to the purpose now. the first and cardinal consideration is the definition of a cabinet. we must not bewilder ourselves with the inseparable accidents until we know the necessary essence. a cabinet is a combining committee--a hyphen which joins, a buckle which fastens, the legislative part of the state to the executive part of the state. in its origin it belongs to the one, in its functions it belongs to the other. the most curious point about the cabinet is that so very little is known about it. the meetings are not only secret in theory, but secret in reality. by the present practice, no official minute in all ordinary cases is kept of them. even a private note is discouraged and disliked. the house of commons, even in its most inquisitive and turbulent moments, would scarcely permit a note of a cabinet meeting to be read. no minister who respected the fundamental usages of political practice would attempt to read such a note. the committee which unites the law-making power to the law-executing power--which, by virtue of that combination, is, while it lasts and holds together, the most powerful body in the state--is a committee wholly secret. no description of it, at once graphic and authentic, has ever been given. it is said to be sometimes like a rather disorderly board of directors, where many speak and few listen--though no one knows.[ ] but a cabinet, though it is a committee of the legislative assembly, is a committee with a power which no assembly would--unless for historical accidents, and after happy experience--have been persuaded to entrust to any committee. it is a committee which can dissolve the assembly which appointed it; it is a committee with a suspensive veto--a committee with a power of appeal. though appointed by one parliament, it can appeal if it chooses to the next. theoretically, indeed, the power to dissolve parliament is entrusted to the sovereign only; and there are vestiges of doubt whether in all cases a sovereign is bound to dissolve parliament when the cabinet asks him to do so. but neglecting such small and dubious exceptions, the cabinet which was chosen by one house of commons has an appeal to the next house of commons. the chief committee of the legislature has the power of dissolving the predominant part of that legislature--that which at a crisis is the supreme legislature. the english system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two. either the cabinet legislates and acts, or else it can dissolve. it is a creature, but it has the power of destroying its creators. it is an executive which can annihilate the legislature, as well as an executive which is the nominee of the legislature. it was made, but it can unmake; it was derivative in its origin, but it is destructive in its action. this fusion of the legislative and executive functions may, to those who have not much considered it, seem but a dry and small matter to be the latent essence and effectual secret of the english constitution; but we can only judge of its real importance by looking at a few of its principal effects, and contrasting it very shortly with its great competitor, which seems likely, unless care be taken, to outstrip it in the progress of the world. that competitor is the presidential system. the characteristic of it is that the president is elected from the people by one process, and the house of representatives by another. the independence of the legislative and executive powers is the specific quality of presidential government, just as their fusion and combination is the precise principle of cabinet government. [ ] it is said that at the end of the cabinet which agreed to propose a fixed duty on corn, lord melbourne put his back to the door and said, "now is it to lower the price of corn or isn't it? it is not much matter which we say, but mind, we must all say the same." this is the most graphic story of a cabinet i ever heard, but i cannot vouch for its truth. lord melbourne's is a character about which men make stories. first, compare the two in quiet times. the essence of a civilised age is, that administration requires the continued aid of legislation. one principal and necessary kind of legislation is taxation. the expense of civilised government is continually varying. it must vary if the government does its duty. the miscellaneous estimates of the english government contain an inevitable medley of changing items. education, prison discipline, art, science, civil contingencies of a hundred kinds, require more money one year and less another. the expense of defence--the naval and military estimates--vary still more as the danger of attack seems more or less imminent, as the means of retarding such danger become more or less costly. if the persons who have to do the work are not the same as those who have to make the laws, there will be a controversy between the two sets of persons. the tax-imposers are sure to quarrel with the tax-requirers. the executive is crippled by not getting the laws it needs, and the legislature is spoiled by having to act without responsibility: the executive becomes unfit for its name, since it cannot execute what it decides on; the legislature is demoralised by liberty, by taking decisions of which others (and not itself) will suffer the effects. in america so much has this difficulty been felt that a semi-connection has grown up between the legislature and the executive. when the secretary of the treasury of the federal government wants a tax he consults upon it with the chairman of the financial committee of congress. he cannot go down to congress himself and propose what he wants; he can only write a letter and send it. but he tries to get a chairman of the finance committee who likes his tax;--through that chairman he tries to persuade the committee to recommend such tax; by that committee he tries to induce the house to adopt that tax. but such a chain of communications is liable to continual interruptions; it may suffice for a single tax on a fortunate occasion, but will scarcely pass a complicated budget--we do not say in a war or a rebellion--we are now comparing the cabinet system and the presidential system in quiet times--but in times of financial difficulty. two clever men never exactly agreed about a budget. we have by present practice an indian chancellor of the exchequer talking english finance at calcutta, and an english one talking indian finance in england. but the figures are never the same, and the views of policy are rarely the same. one most angry controversy has amused the world, and probably others scarcely less interesting are hidden in the copious stores of our anglo-indian correspondence. but relations something like these must subsist between the head of a finance committee in the legislature, and a finance minister in the executive.[ ] they are sure to quarrel, and the result is sure to satisfy neither. and when the taxes do not yield as they were expected to yield, who is responsible? very likely the secretary of the treasury could not persuade the chairman--very likely the chairman could not persuade his committee--very likely the committee could not persuade the assembly. whom, then, can you punish--whom can you abolish--when your taxes run short? there is nobody save the legislature, a vast miscellaneous body difficult to punish, and the very persons to inflict the punishment. nor is the financial part of administration the only one which requires in a civilised age the constant support and accompaniment of facilitating legislation. all administration does so. in england, on a vital occasion, the cabinet can compel legislation by the threat of resignation, and the threat of dissolution; but neither of these can be used in a presidential state. there the legislature cannot be dissolved by the executive government; and it does not heed a resignation, for it has not to find the successor. accordingly, when a difference of opinion arises, the legislature is forced to fight the executive, and the executive is forced to fight the legislative; and so very likely they contend to the conclusion of their respective terms.[ ] there is, indeed, one condition of things in which this description, though still approximately true, is, nevertheless, not exactly true; and that is, when there is nothing to fight about. before the rebellion in america, owing to the vast distance of other states, and the favourable economic condition of the country, there were very few considerable objects of contention; but if that government had been tried by english legislation of the last thirty years, the discordant action of the two powers, whose constant cooperation is essential to the best government, would have shown itself much more distinctly. nor is this the worst. cabinet government educates the nation; the presidential does not educate it, and may corrupt it. it has been said that england invented the phrase, "her majesty's opposition"; that it was the first government which made a criticism of administration as much a part of the polity as administration itself. this critical opposition is the consequence of cabinet government. the great scene of debate, the great engine of popular instruction and political controversy, is the legislative assembly. a speech there by an eminent statesman, a party movement by a great political combination, are the best means yet known for arousing, enlivening, and teaching a people. the cabinet system ensures such debates, for it makes them the means by which statesmen advertise themselves for future and confirm themselves in present governments. it brings forward men eager to speak, and gives them occasions to speak. the deciding catastrophes of cabinet governments are critical divisions preceded by fine discussions. everything which is worth saying, everything which ought to be said, most certainly will be said. conscientious men think they ought to persuade others; selfish men think they would like to obtrude themselves. the nation is forced to hear two sides--all the sides, perhaps, of that which most concerns it. and it likes to hear--it is eager to know. human nature despises long arguments which come to nothing--heavy speeches which precede no motion--abstract disquisitions which leave visible things where they were. but all men heed great results, and a change of government is a great result. it has a hundred ramifications; it runs through society; it gives hope to many, and it takes away hope from many. it is one of those marked events which, by its magnitude and its melodrama, impress men even too much. and debates which have this catastrophe at the end of them--or may so have it--are sure to be listened to, and sure to sink deep into the national mind. travellers even in the northern states of america, the greatest and best of presidential countries, have noticed that the nation was "not specially addicted to politics"; that they have not a public opinion finished and chastened as that of the english has been finished and chastened. a great many hasty writers have charged this defect on the "yankee race," on the anglo-american character; but english people, if they had no motive to attend to politics, certainly would not attend to politics. at present there is business in their attention. they assist at the determining crisis; they arrest or help it. whether the government will go out or remain is determined by the debate, and by the division in parliament. and the opinion out of doors, the secret pervading disposition of society, has a great influence on that division. the nation feels that its judgment is important, and it strives to judge. it succeeds in deciding because the debates and the discussions give it the facts and the arguments. but under a presidential government, a nation has, except at the electing moment, no influence; it has not the ballot-box before it; its virtue is gone, and it must wait till its instant of despotism again returns. it is not incited to form an opinion like a nation under a cabinet government; nor is it instructed like such a nation. there are doubtless debates in the legislature, but they are prologues without a play. there is nothing of a catastrophe about them; you can not turn out the government. the prize of power is not in the gift of the legislature, and no one cares for the legislature. the executive, the great centre of power and place, sticks irremovable; you cannot change it in any event. the teaching apparatus which has educated our public mind, which prepares our resolutions, which shapes our opinions, does not exist. no presidential country needs to form daily delicate opinions, or is helped in forming them. it might be thought that the discussions in the press would supply the deficiencies in the constitution; that by a reading people especially, the conduct of their government would be as carefully watched, that their opinions about it would be as consistent, as accurate, as well considered, under a presidential as under a cabinet polity. but the same difficulty oppresses the press which oppresses the legislature. it can do nothing. it cannot change the administration; the executive was elected for such and such years, and for such and such years it must last. people wonder that so literary a people as the americans--a people who read more than any people who ever lived, who read so many newspapers--should have such bad newspapers. the papers are not so good as the english, because they have not the same motive to be good as the english papers. at a political "crisis," as we say--that is, when the fate of an administration is unfixed, when it depends on a few votes yet unsettled, upon a wavering and veering opinion--effective articles in great journals become of essential moment. the times has made many ministries. when, as of late, there has been a long continuance of divided parliaments, of governments which were without "brute voting power," and which depended on intellectual strength, the support of the most influential organ of english opinion has been of critical moment. if a washington newspaper could have turned out mr. lincoln, there would have been good writing and fine argument in the washington newspapers. but the washington newspapers can no more remove a president during his term of place than the times can remove a lord mayor during his year of office. nobody cares for a debate in congress which "comes to nothing," and no one reads long articles which have no influence on events. the americans glance at the heads of news, and through the paper. they do not enter upon a discussion. they do not think of entering upon a discussion which would be useless. [ ] it is worth observing that even during the short existence of the confederate government these evils distinctly showed themselves. almost the last incident at the richmond congress was an angry financial correspondence with jefferson davis. [ ] i leave this passage to stand as it was written, just after the assassination of mr. lincoln, and when every one said mr. johnson would be very hostile to the south. after saying that the division of the legislature and the executive in presidential governments weakens the legislative power, it may seem a contradiction to say that it also weakens the executive power. but it is not a contradiction. the division weakens the whole aggregate force of government--the entire imperial power; and therefore it weakens both its halves. the executive is weakened in a very plain way. in england a strong cabinet can obtain the concurrence of the legislature in all acts which facilitate its administration; it is itself, so to say, the legislature. but a president may be hampered by the parliament, and is likely to be hampered. the natural tendency of the members of every legislature is to make themselves conspicuous. they wish to gratify an ambition laudable or blamable; they wish to promote the measures they think best for the public welfare; they wish to make their will felt in great affairs. all these mixed motives urge them to oppose the executive. they are embodying the purposes of others if they aid; they are advancing their own opinions if they defeat: they are first if they vanquish; they are auxiliaries if they support. the weakness of the american executive used to be the great theme of all critics before the confederate rebellion. congress and committees of congress of course impeded the executive when there was no coercive public sentiment to check and rule them. but the presidential system not only gives the executive power an antagonist in the legislative power, and so makes it weaker; it also enfeebles it by impairing its intrinsic quality. a cabinet is elected by a legislature; and when that legislature is composed of fit persons, that mode of electing the executive is the very best. it is a case of secondary election, under the only conditions in which secondary election is preferable to primary. generally speaking, in an electioneering country (i mean in a country full of political life, and used to the manipulation of popular institutions), the election of candidates to elect candidates is a farce. the electoral college of america is so. it was intended that the deputies when assembled should exercise a real discretion, and by independent choice select the president. but the primary electors take too much interest. they only elect a deputy to vote for mr. lincoln or mr. breckenridge, and the deputy only takes a ticket, and drops that ticket in an urn. he never chooses or thinks of choosing. he is but a messenger--a transmitter; the real decision is in those who choose him--who chose him because they knew what he would do. it is true that the british house of commons is subject to the same influences. members are mostly, perhaps, elected because they will vote for a particular ministry, rather than for purely legislative reasons. but--and here is the capital distinction--the functions of the house of commons are important and continuous. it does not, like the electoral college in the united states, separate when it has elected its ruler; it watches, legislates, seats and unseats ministries, from day to day. accordingly it is a real electoral body. the parliament of , which, more than any other parliament of late years, was a parliament elected to support a particular premier--which was chosen, as americans might say, upon the "palmerston ticket"--before it had been in existence two years, dethroned lord palmerston. though selected in the interest of a particular ministry, it in fact destroyed that ministry. a good parliament, too, is a capital choosing body. if it is fit to make laws for a country, its majority ought to represent the general average intelligence of that country; its various members ought to represent the various special interests, special opinions, special prejudices, to be found in that community. there ought to be an advocate for every particular sect, and a vast neutral body of no sect--homogeneous and judicial, like the nation itself. such a body, when possible, is the best selector of executives that can be imagined. it is full of political activity; it is close to political life; it feels the responsibility of affairs which are brought as it were to its threshold; it has as much intelligence as the society in question chances to contain. it is, what washington and hamilton strove to create, an electoral college of the picked men of the nation. the best mode of appreciating its advantages is to look at the alternative. the competing constituency is the nation itself, and this is, according to theory and experience, in all but the rarest cases, a bad constituency. mr. lincoln, at his second election, being elected when all the federal states had set their united hearts on one single object, was voluntarily reelected by an actually choosing nation. he embodied the object in which every one was absorbed. but this is almost the only presidential election of which so much can be said. in almost all cases the president is chosen by a machinery of caucuses and combinations too complicated to be perfectly known, and too familiar to require description. he is not the choice of the nation, he is the choice of the wire-pullers. a very large constituency in quiet times is the necessary, almost the legitimate, subject of electioneering management: a man cannot know that he does not throw his vote away except he votes as part of some great organisation; and if he votes as a part, he abdicates his electoral function in favour of the managers of that association. the nation, even if it chose for itself, would, in some degree, be an unskilled body; but when it does not choose for itself, but only as latent agitators wish, it is like a large, lazy man, with a small vicious mind,--it moves slowly and heavily, but it moves at the bidding of a bad intention; it "means little, but it means that little ill." and, as the nation is less able to choose than a parliament, so it has worse people to choose out of. the american legislators of the last century have been much blamed for not permitting the ministers of the president to be members of the assembly; but, with reference to the specific end which they had in view, they saw clearly and decided wisely. they wished to keep "the legislative branch absolutely distinct from the executive branch"; they believed such a separation to be essential to a good constitution; they believed such a separation to exist in the english, which the wisest of them thought the best constitution. and, to the effectual maintenance of such a separation, the exclusion of the president's ministers from the legislature is essential. if they are not excluded they become the executive, they eclipse the president himself. a legislative chamber is greedy and covetous; it acquires as much, it concedes as little as possible. the passions of its members are its rulers; the law-making faculty, the most comprehensive of the imperial faculties, is its instrument; it will take the administration if it can take it. tried by their own aims, the founders of the united states were wise in excluding the ministers from congress. but though this exclusion is essential to the presidential system of government, it is not for that reason a small evil. it causes the degradation of public life. unless a member of the legislature be sure of something more than speech, unless he is incited by the hope of action, and chastened by the chance of responsibility, a first-rate man will not care to take the place, and will not do much if he does take it. to belong to a debating society adhering to an executive (and this is no inapt description of a congress under a presidential constitution) is not an object to stir a noble ambition, and is a position to encourage idleness. the members of a parliament excluded from office can never be comparable, much less equal, to those of a parliament not excluded from office. the presidential government, by its nature, divides political life into two halves, an executive half and a legislative half; and, by so dividing it, makes neither half worth a man's having--worth his making it a continuous career--worthy to absorb, as cabinet government absorbs, his whole soul. the statesmen from whom a nation chooses under a presidential system are much inferior to those from whom it chooses under a cabinet system, while the selecting apparatus is also far less discerning. all these differences are more important at critical periods, because government itself is more important. a formed public opinion, a respectable, able, and disciplined legislature, a well-chosen executive, a parliament and an administration not thwarting each other, but co-operating with each other, are of greater consequence when great affairs are in progress than when small affairs are in progress-when there is much to do than when there is little to do. but in addition to this, a parliamentary or cabinet constitution possesses an additional and special advantage in very dangerous times. it has what we may call a reserve of power fit for and needed by extreme exigencies. the principle of popular government is that the supreme power, the determining efficacy in matters political, resides in the people--not necessarily or commonly in the whole people, in the numerical majority, but in a chosen people, a picked and selected people. it is so in england; it is so in all free countries. under a cabinet constitution at a sudden emergency this people can choose a ruler for the occasion. it is quite possible and even likely that he would not be ruler before the occasion. the great qualities, the imperious will, the rapid energy, the eager nature fit for a great crisis are not required--are impediments--in common times; a lord liverpool is better in everyday politics than a chatham--a louis philippe far better than a napoleon. by the structure of the world we often want, at the sudden occurrence of a grave tempest, to change the helmsman--to replace the pilot of the calm by the pilot of the storm. in england we have had so few catastrophes since our constitution attained maturity, that we hardly appreciate this latent excellence. we have not needed a cavour to rule a revolution--a representative man above all men fit for a great occasion, and by a natural legal mode brought in to rule. but even in england, at what was the nearest to a great sudden crisis which we have had of late years--at the crimean difficulty--we used this inherent power. we abolished the aberdeen cabinet, the ablest we have had, perhaps, since the reform act--a cabinet not only adapted, but eminently adapted, for every sort of difficulty save the one it had to meet--which abounded in pacific discretion, and was wanting only in the "daemonic element"; we chose a statesman, who had the sort of merit then wanted, who, when he feels the steady power of england behind him, will advance without reluctance, and will strike without restraint. as was said at the time, "we turned out the quaker, and put in the pugilist". but under a presidential government you can do nothing of the kind. the american government calls itself a government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot find the supreme people. you have got a congress elected for one fixed period, going out perhaps by fixed instalments, which cannot be accelerated or retarded--you have a president chosen for a fixed period, and immovable during that period: all the arrangements are for stated times. there is no elastic element, everything is rigid, specified, dated. come what may, you can quicken nothing, and can retard nothing. you have bespoken your government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it. in a country of complex foreign relations it would mostly happen that the first and most critical year of every war would be managed by a peace premier, and the first and most critical years of peace by a war premier. in each case the period of transition would be irrevocably governed by a man selected not for what he was to introduce, but what he was to change--for the policy he was to abandon, not for the policy he was to administer. the whole history of the american civil war--a history which has thrown an intense light on the working of a presidential government at the time when government is most important--is but a vast continuous commentary on these reflections. it would, indeed, be absurd to press against presidential government as such the singular defect by which vice-president johnson has become president--by which a man elected to a sinecure is fixed in what is for the moment the most important administrative part in the political world. this defect, though most characteristic of the expectations[ ] of the framers of the constitution and of its working, is but an accident of this particular case of presidential government, and no necessary ingredient in that government itself. but the first election of mr. lincoln is liable to no such objection. it was a characteristic instance of the natural working of such a government upon a great occasion. and what was that working? it may be summed up--it was government by an unknown quantity. hardly any one in america had any living idea what mr. lincoln was like, or any definite notion what he would do. the leading statesmen under the system of cabinet government are not only household words, but household ideas. a conception, not, perhaps, in all respects a true but a most vivid conception of what mr. gladstone is like, or what lord palmerston is like, runs through society. we have simply no notion what it would be to be left with the visible sovereignty in the hands of an unknown man. the notion of employing a man of unknown smallness at a crisis of unknown greatness is to our minds simply ludicrous. mr. lincoln, it is true, happened to be a man, if not of eminent ability, yet of eminent justness. there was an inner depth of puritan nature which came out under suffering, and was very attractive. but success in a lottery is no argument for lotteries. what were the chances against a person of lincoln's antecedents, elected as he was, proving to be what he was? such an incident is, however, natural to a presidential government. the president is elected by processes which forbid the election of known men, except at peculiar conjunctures, and in moments when public opinion is excited and despotic; and consequently if a crisis comes upon us soon after he is elected, inevitably we have government by an unknown quantity--the superintendence of that crisis by what our great satirist would have called "statesman x". even in quiet times, government by a president, is, for the several various reasons which have been stated, inferior to government by a cabinet; but the difficulty of quiet times is nothing as compared with the difficulty of unquiet times. the comparative deficiencies of the regular, common operation of a presidential government are far less than the comparative deficiencies in time of sudden trouble--the want of elasticity, the impossibility of a dictatorship, the total absence of a revolutionary reserve. this contrast explains why the characteristic quality of cabinet governments--the fusion of the executive power with the legislative power--is of such cardinal importance. i shall proceed to show under what form and with what adjuncts it exists in england. [ ] the framers of the constitution expected that the vice-president would be elected by the electoral college as the second wisest man in the country. the vice-presidentship being a sinecure, a second-rate man agreeable to the wire-pullers is always smuggled in. the chance of succession to the presidentship is too distant to be thought of. no. iii. the monarchy. i. the use of the queen, in a dignified capacity, is incalculable. without her in england, the present english government would fail and pass away. most people when they read that the queen walked on the slopes at windsor--that the prince of wales went to the derby--have imagined that too much thought and prominence were given to little things. but they have been in error; and it is nice to trace how the actions of a retired widow and an unemployed youth become of such importance. the best reason why monarchy is a strong government is, that it is an intelligible government. the mass of mankind understand it, and they hardly anywhere in the world understand any other. it is often said that men are ruled by their imaginations; but it would be truer to say they are governed by the weakness of their imaginations. the nature of a constitution, the action of an assembly, the play of parties, the unseen formation of a guiding opinion, are complex facts, difficult to know and easy to mistake. but the action of a single will, the fiat of a single mind, are easy ideas: anybody can make them out, and no one can ever forget them. when you put before the mass of mankind the question, "will you be governed by a king, or will you be governed by a constitution?" the inquiry comes out thus--"will you be governed in a way you understand, or will you be governed in a way you do not understand?" the issue was put to the french people; they were asked, "will you be governed by louis napoleon, or will you be governed by an assembly?" the french people said, "we will be governed by the one man we can imagine, and not by the many people we cannot imagine". the best mode of comprehending the nature of the two governments, is to look at a country in which the two have within a comparatively short space of years succeeded each other. "the political condition," says mr. grote, "which grecian legend everywhere presents to us, is in its principal features strikingly different from that which had become universally prevalent among the greeks in the time of the peloponnesian war. historical oligarchy, as well as democracy, agreed in requiring a certain established system of government, comprising the three elements of specialised functions, temporary functionaries, and ultimate responsibility (under some forms or other) to the mass of qualified citizens--either a senate or an ecclesia, or both. there were, of course, many and capital distinctions between one government and another, in respect to the qualification of the citizen, the attributes and efficiency of the general assembly, the admissibility to power, etc.; and men might often be dissatisfied with the way in which these questions were determined in their own city. but in the mind of every man, some determining rule or system--something like what in modern times is called a constitution--was indispensable to any government entitled to be called legitimate, or capable of creating in the mind of a greek a feeling of moral obligation to obey it. the functionaries who exercise authority under it might be more or less competent or popular; but his personal feelings towards them were commonly lost in his attachment or aversion to the general system. if any energetic man could by audacity or craft break down the constitution, and render himself permanent ruler according to his own will and pleasure, even though he might govern well, he could never inspire the people with any sentiment of duty towards him: his sceptre was illegitimate from the beginning, and even the taking of his life, far from being interdicted by that moral feeling which condemned the shedding of blood in other cases, was considered meritorious: he could not even be mentioned in the language except by a name (_tyrannos_, despot) which branded him as an object of mingled fear and dislike. "if we carry our eyes back from historical to legendary greece, we find a picture the reverse of what has been here sketched. we discern a government in which there is little or no scheme or system, still less any idea of responsibility to the governed, but in which the mainspring of obedience on the part of the people consists in their personal feeling and reverence towards the chief. we remark, first and foremost, the king; next, a limited number of subordinate kings or chiefs; afterwards, the mass of armed freemen, husbandmen, artisans, freebooters, &c.; lowest of all, the free labourers for hire and the bought slaves. the king is not distinguished by any broad, or impassable boundary from the other chiefs, to each of whom the title basileus is applicable as well as to himself: his supremacy has been inherited from his ancestors, and passes by inheritance, as a general rule, to his eldest son, having been conferred upon the family as a privilege by the favour of zeus. in war, he is the leader, foremost in personal prowess, and directing all military movements; in peace, he is the general protector of the injured and oppressed; he offers up moreover those public prayers and sacrifices which are intended to obtain for the whole people the favour of the gods. an ample domain is assigned to him as an appurtenance of his lofty position, and the produce of his fields and his cattle is consecrated in part to an abundant, though rude hospitality. moreover he receives frequent presents, to avert his enmity, to conciliate his favour, or to buy off his exactions; and when plunder is taken from the enemy, a large previous share, comprising probably the most alluring female captive, is reserved for him apart from the general distribution. "such is the position of the king in the heroic times of greece--the only person (if we except the herald, and priests, each both special and subordinate) who is then presented to us as clothed with any individual authority--the person by whom all the executive functions, then few in number, which the society requires, are either performed or directed. his personal ascendancy--derived from divine countenance bestowed both upon himself individually and upon his race, and probably from accredited divine descent--is the salient feature in the picture: the people hearken to his voice, embrace his propositions, and obey his orders: not merely resistance, but even criticism upon his acts, is generally exhibited in an odious point of view, and is indeed never heard of except from some one or more of the subordinate princes." the characteristic of the english monarchy is that it retains the feelings by which the heroic kings governed their rude age, and has added the feelings by which the constitutions of later greece ruled in more refined ages. we are a more mixed people than the athenians, or probably than any political greeks. we have progressed more unequally. the slaves in ancient times were a separate order; not ruled by the same laws, or thoughts, as other men. it was not necessary to think of them in making a constitution: it was not necessary to improve them in order to make a constitution possible. the greek legislator had not to combine in his polity men like the labourers of somersetshire, and men like mr. grote. he had not to deal with a community in which primitive barbarism lay as a recognised basis to acquired civilisation. we have. we have no slaves to keep down by special terrors and independent legislation. but we have whole classes unable to comprehend the idea of a constitution--unable to feel the least attachment to impersonal laws. most do indeed vaguely know that there are some other institutions besides the queen, and some rules by which she governs. but a vast number like their minds to dwell more upon her than upon anything else, and therefore she is inestimable. a republic has only difficult ideas in government; a constitutional monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and notions for the inquiring few. a family on the throne is an interesting idea also. it brings down the pride of sovereignty to the level of petty life. no feeling could seem more childish than the enthusiasm of the english at the marriage of the prince of wales. they treated as a great political event, what, looked at as a matter of pure business, was very small indeed. but no feeling could be more like common human nature as it is, and as it is likely to be. the women--one half the human race at least--care fifty times more for a marriage than a ministry. all but a few cynics like to see a pretty novel touching for a moment the dry scenes of the grave world. a princely marriage is the brilliant edition of a universal fact, and, as such, it rivets mankind. we smile at the court circular; but remember how many people read the court circular! its use is not in what it says, but in those to whom it speaks. they say that the americans were more pleased at the queen's letter to mrs. lincoln, than at any act of the english government. it was a spontaneous act of intelligible feeling in the midst of confused and tiresome business. just so a royal family sweetens politics by the seasonable addition of nice and pretty events. it introduces irrelevant facts into the business of government, but they are facts which speak to "men's bosoms" and employ their thoughts. to state the matter shortly, royalty is a government in which the attention of the nation is concentrated on one person doing interesting actions. a republic is a government in which that attention is divided between many, who are all doing uninteresting actions. accordingly, so long as the human heart is strong and the human reason weak, royalty will be strong because it appeals to diffused feeling, and republics weak because they appeal to the understanding. secondly. the english monarchy strengthens our government with the strength of religion. it is not easy to say why it should be so. every instructed theologian would say that it was the duty of a person born under a republic as much to obey that republic as it is the duty of one born under a monarchy to obey the monarch. but the mass of the english people do not think so; they agree with the oath of allegiance; they say it is their duty to obey the "queen," and they have but hazy notions as to obeying laws without a queen. in former times, when our constitution was incomplete, this notion of local holiness in one part was mischievous. all parts were struggling, and it was necessary each should have its full growth. but superstition said one should grow where it would, and no other part should grow without its leave. the whole cavalier party said it was their duty to obey the king, whatever the king did. there was to be "passive obedience" to him, and there was no religious obedience due to any one else. he was the "lord's anointed," and no one else had been anointed at all. the parliament, the laws, the press were human institutions; but the monarchy was a divine institution. an undue advantage was given to a part of the constitution, and therefore the progress of the whole was stayed. after the revolution this mischievous sentiment was much weaker. the change of the line of sovereigns was at first conclusive, if there was a mystic right in any one, that right was plainly in james ii.; if it was an english duty to obey any one whatever he did, he was the person to be so obeyed; if there was an inherent inherited claim in any king, it was in the stuart king to whom the crown had come by descent, and not in the revolution king to whom it had come by vote of parliament. all through the reign of william iii. there was (in common speech) one king whom man had made, and another king whom god had made. the king who ruled had no consecrated loyalty to build upon; although he ruled in fact, according to sacred theory there was a king in france who ought to rule. but it was very hard for the english people, with their plain sense and slow imagination, to keep up a strong sentiment of veneration for a foreign adventurer. he lived under the protection of a french king; what he did was commonly stupid, and what he left undone was very often wise. as soon as queen anne began to reign there was a change of feeling; the old sacred sentiment began to cohere about her. there were indeed difficulties which would have baffled most people; but an englishman whose heart is in a matter is not easily baffled. queen anne had a brother living and a father living, and by every rule of descent, their right was better than hers. but many people evaded both claims. they said james ii. had "run away," and so abdicated, though he only ran away because he was in duresse and was frightened, and though he claimed the allegiance of his subjects day by day. the pretender, it was said, was not legitimate, though the birth was proved by evidence which any court of justice would have accepted. the english people were "out of" a sacred monarch, and so they tried very hard to make a new one. events, however, were too strong for them. they were ready and eager to take queen anne as the stock of a new dynasty; they were ready to ignore the claims of her father and the claims of her brother, but they could not ignore the fact that at the critical period she had no children. she had once had thirteen, but they all died in her lifetime, and it was necessary either to revert to the stuarts or to make a new king by act of parliament. according to the act of settlement passed by the whigs, the crown was settled on the descendants of the "princess sophia" of hanover, a younger daughter of a daughter of james i. there were before her james ii., his son, the descendants of a daughter of charles i., and elder children of her own mother. but the whigs passed these over because they were catholics, and selected the princess sophia, who, if she was anything, was a protestant. certainly this selection was statesmanlike, but it could not be very popular. it was quite impossible to say that it was the duty of the english people to obey the house of hanover upon any principles which do not concede the right of the people to choose their rulers, and which do not degrade monarchy from its solitary pinnacle of majestic reverence, and make it one only among many expedient institutions. if a king is a useful public functionary who may be changed, and in whose place you may make another, you cannot regard him with mystic awe and wonder; and if you are bound to worship him, of course you cannot change him. accordingly, during the whole reigns of george i. and george ii. the sentiment of religious loyalty altogether ceased to support the crown. the prerogative of the king had no strong party to support it; the tories, who naturally would support it, disliked the actual king; and the whigs, according to their creed, disliked the king's office. until the accession of george iii. the most vigorous opponents of the crown were the country gentlemen, its natural friends, and the representatives of quiet rural districts, where loyalty is mostly to be found, if anywhere. but after the accession of george iii. the common feeling came back to the same point as in queen anne's time. the english were ready to take the new young prince as the beginning of a sacred line of sovereigns, just as they had been willing to take an old lady, who was the second cousin of his great-great-grandmother. so it is now. if you ask the immense majority of the queen's subjects by what right she rules, they would never tell you that she rules by parliamentary right, by virtue of anne, c. . they will say she rules by "god's grace"; they believe that they have a mystic obligation to obey her. when her family came to the crown it was a sort of treason to maintain the inalienable right of lineal sovereignty, for it was equivalent to saying that the claim of another family was better than hers: but now, in the strange course of human events, that very sentiment has become her surest and best support. but it would be a great mistake to believe that at the accession of george iii. the instinctive sentiment of hereditary loyalty at once became as useful as now. it began to be powerful, but it hardly began to be useful. there was so much harm done by it as well as so much good, that it is quite capable of being argued whether on the whole it was beneficial or hurtful. throughout the greater part of his life george iii. was a kind of "consecrated obstruction". whatever he did had a sanctity different from what any one else did, and it perversely happened that he was commonly wrong. he had as good intentions as any one need have, and he attended to the business of his country, as a clerk with his bread to get attends to the business of his office. but his mind was small, his education limited, and he lived in a changing time. accordingly, he was always resisting what ought to be, and prolonging what ought not to be. he was the sinister but sacred assailant of half his ministries; and when the french revolution excited the horror of the world, and proved democracy to be "impious," the piety of england concentrated upon him, and gave him tenfold strength. the monarchy by its religious sanction now confirms all our political order; in george iii.'s time it confirmed little except itself. it gives now a vast strength to the entire constitution, by enlisting on its behalf the credulous obedience of enormous masses; then it lived aloof, absorbed all the holiness into itself, and turned over all the rest of the polity to the coarse justification of bare expediency. a principal reason why the monarchy so well consecrates our whole state is to be sought in the peculiarity many americans and many utilitarians smile at. they laugh at this "extra," as the yankee called it, at the solitary transcendent element. they quote napoleon's saying, "that he did not wish to be fatted in idleness," when he refused to be grand elector in sieyes' constitution, which was an office copied, and m. thiers says, well copied, from constitutional monarchy. but such objections are wholly wrong. no doubt it was absurd enough in the abbe sieyes to propose that a new institution, inheriting no reverence, and made holy by no religion, should be created to fill the sort of post occupied by a constitutional king in nations of monarchical history. such an institution, far from being so august as to spread reverence around it, is too novel and artificial to get reverence for itself; if, too, the absurdity could anyhow be augmented, it was so by offering an office of inactive uselessness and pretended sanctity to napoleon, the most active man in france, with the greatest genius for business, only not sacred, and exclusively fit for action. but the blunder of sieyes brings the excellence of real monarchy to the best light. when a monarch can bless, it is best that he should not be touched. it should be evident that he does no wrong. he should not be brought too closely to real measurement. he should be aloof and solitary. as the functions of english royalty are for the most part latent, it fulfils this condition. it seems to order, but it never seems to struggle. it is commonly hidden like a mystery, and sometimes paraded like a pageant, but in neither case is it contentious. the nation is divided into parties, but the crown is of no party. its apparent separation from business is that which removes it both from enmities and from desecration, which preserves its mystery, which enables it to combine the affection of conflicting parties--to be a visible symbol of unity to those still so imperfectly educated as to need a symbol. thirdly. the queen is the head of our society. if she did not exist the prime minister would be the first person in the country. he and his wife would have to receive foreign ministers, and occasionally foreign princes, to give the first parties in the country; he and she would be at the head of the pageant of life; they would represent england in the eyes of foreign nations; they would represent the government of england in the eyes of the english. it is very easy to imagine a world in which this change would not be a great evil. in a country where people did not care for the outward show of life, where the genius of the people was untheatrical, and they exclusively regarded the substance of things, this matter would be trifling. whether lord and lady derby received the foreign ministers, or lord and lady palmerston, would be a matter of indifference; whether they gave the nicest parties would be important only to the persons at those parties. a nation of unimpressible philosophers would not care at all how the externals of life were managed. who is the showman is not material unless you care about the show. but of all nations in the world the english are perhaps the least a nation of pure philosophers. it would be a very serious matter to us to change every four or five years the visible head of our world. we are not now remarkable for the highest sort of ambition; but we are remarkable for having a great deal of the lower sort of ambition and envy. the house of commons is thronged with people who get there merely for "social purposes," as the phrase goes; that is, that they and their families may go to parties else impossible. members of parliament are envied by thousands merely for this frivolous glory, as a thinker calls it. if the highest post in conspicuous life were thrown open to public competition, this low sort of ambition and envy would be fearfully increased. politics would offer a prize too dazzling for mankind; clever base people would strive for it, and stupid base people would envy it. even now a dangerous distinction is given by what is exclusively called public life. the newspapers describe daily and incessantly a certain conspicuous existence; they comment on its characters, recount its details, investigate its motives, anticipate its course. they give a precedent and a dignity to that world which they do not give to any other. the literary world, the scientific world, the philosophic world, not only are not comparable in dignity to the political world, but in comparison are hardly worlds at all. the newspaper makes no mention of them, and could not mention them. as are the papers, so are the readers; they, by irresistible sequence and association, believe that those people who constantly figure in the papers are cleverer, abler, or at any rate, somehow higher, than other people. "i wrote books," we heard of a man saying, "for twenty years, and i was nobody; i got into parliament, and before i had taken my seat i had become somebody." english politicians are the men who fill the thoughts of the english public: they are the actors on the scene, and it is hard for the admiring spectators not to believe that the admired actor is greater than themselves. in this present age and country it would be very dangerous to give the slightest addition to a force already perilously great. if the highest social rank was to be scrambled for in the house of commons, the number of social adventurers there would be incalculably more numerous, and indefinitely more eager. a very peculiar combination of causes has made this characteristic one of the most prominent in english society. the middle ages left all europe with a social system headed by courts. the government was made the head of all society, all intercourse, and all life; everything paid allegiance to the sovereign, and everything ranged itself round the sovereign--what was next to be greatest, and what was farthest least. the idea that the head of the government is the head of society is so fixed in the ideas of mankind that only a few philosophers regard it as historical and accidental, though when the matter is examined, that conclusion is certain and even obvious. in the first place, society as society does not naturally need a head at all. its constitution, if left to itself, is not monarchical, but aristocratical. society, in the sense we are now talking of, is the union of people for amusement and conversation. the making of marriages goes on in it, as it were, incidentally, but its common and main concern is talking and pleasure. there is nothing in this which needs a single supreme head; it is a pursuit in which a single person does not of necessity dominate. by nature it creates an "upper ten thousand"; a certain number of persons and families possessed of equal culture, and equal faculties, and equal spirit, get to be on a level--and that level a high level. by boldness, by cultivation, by "social science" they raise themselves above others; they become the "first families," and all the rest come to be below them. but they tend to be much about a level among one another; no one is recognised by all or by many others as superior to them all. this is society as it grew up in greece or italy, as it grows up now in any american or colonial town. so far from the notion of a "head of society" being a necessary notion, in many ages it would scarcely have been an intelligible notion. you could not have made socrates understand it. he would have said, "if you tell me that one of my fellows is chief magistrate, and that i am bound to obey him, i understand you, and you speak well; or that another is a priest, and that he ought to offer sacrifices to the gods which i or any one not a priest ought not to offer, again i understand and agree with you. but if you tell me that there is in some citizen a hidden charm by which his words become better than my words, and his house better than my house, i do not follow you, and should be pleased if you will explain yourself." and even if a head of society were a natural idea, it certainly would not follow that the head of the civil government should be that head. society as such has no more to do with civil polity than with ecclesiastical. the organisation of men and women for the purpose of amusement is not necessarily identical with their organisation for political purposes, any more than with their organisation for religious purposes; it has of itself no more to do with the state than it has with the church. the faculties which fit a man to be a great ruler are not those of society; some great rulers have been unintelligible like cromwell, or brusque like napoleon, or coarse and barbarous like sir robert walpole. the light nothings of the drawing-room and the grave things of office are as different from one another as two human occupations can be. there is no naturalness in uniting the two; the end of it always is, that you put a man at the head of society who very likely is remarkable for social defects, and is not eminent for social merits. the best possible commentary on these remarks is the history of english history. it has not been sufficiently remarked that a change has taken place in the structure of our society exactly analogous to the change in our polity. a republic has insinuated itself beneath the folds of a monarchy. charles ii. was really the head of society; whitehall, in his time, was the centre of the best talk, the best fashion, and the most curious love affairs of the age. he did not contribute good morality to society, but he set an example of infinite agreeableness. he concentrated around him all the light part of the high world of london, and london concentrated around it all the light part of the high world of england. the court was the focus where everything fascinating gathered, and where everything exciting centred. whitehall was an unequalled club, with female society of a very clever and sharp sort superadded. all this, as we know, is now altered. buckingham palace is as unlike a club as any place is likely to be. the court is a separate part, which stands aloof from the rest of the london world, and which has but slender relations with the more amusing part of it. the first two georges were men ignorant of english, and wholly unfit to guide and lead english society. they both preferred one or two german ladies of bad character to all else in london. george iii. had no social vices, but he had no social pleasures. he was a family man, and a man of business, and sincerely preferred a leg of mutton and turnips after a good day's work, to the best fashion and the most exciting talk. in consequence, society in london, though still in form under the domination of a court, assumed in fact its natural and oligarchical structure. it, too, has become an "upper ten thousand"; it is no more monarchical in fact than the society of new york. great ladies give the tone to it with little reference to the particular court world. the peculiarly masculine world of the clubs and their neighbourhood has no more to do in daily life with buckingham palace than with the tuileries. formal ceremonies of presentation and attendance are retained. the names of levee and drawing-room still sustain the memory of the time when the king's bed-chamber and the queen's "withdrawing room" were the centres of london life, but they no longer make a part of social enjoyment: they are a sort of ritual in which nowadays almost every decent person can if he likes take part. even court balls, where pleasure is at least supposed to be possible, are lost in a london july. careful observers have long perceived this, but it was made palpable to every one by the death of the prince consort. since then the court has been always in a state of suspended animation, and for a time it was quite annihilated. but everything went on as usual. a few people who had no daughters and little money made it an excuse to give fewer parties, and if very poor, stayed in the country, but upon the whole the difference was not perceptible. the queen bee was taken away, but the hive went on. refined and original observers have of late objected to english royalty that it is not splendid enough. they have compared it with the french court, which is better in show, which comes to the surface everywhere so that you cannot help seeing it, which is infinitely and beyond question the most splendid thing in france. they have said, "that in old times the english court took too much of the nation's money, and spent it ill; but now, when it could be trusted to spend well, it does not take enough of the nation's money. there are arguments for not having a court, and there are arguments for having a splendid court; but there are no arguments for having a mean court. it is better to spend a million in dazzling when you wish to dazzle, than three-quarters of a million in trying to dazzle and yet not dazzling." there may be something in this theory; it may be that the court of england is not quite as gorgeous as we might wish to see it. but no comparison must ever be made between it and the french court. the emperor represents a different idea from the queen. he is not the head of the state; he is the state. the theory of his government is that every one in france is equal, and that the emperor embodies the principle of equality. the greater you make him, the less, and therefore the more equal, you make all others. he is magnified that others may be dwarfed. the very contrary is the principle of english royalty. as in politics it would lose its principal use if it came forward into the public arena, so in society if it advertised itself it would be pernicious. we have voluntary show enough already in london; we do not wish to have it encouraged and intensified, but quieted and mitigated. our court is but the head of an unequal, competing, aristocratic society; its splendour would not keep others down, but incite others to come on. it is of use so long as it keeps others out of the first place, and is guarded and retired in that place. but it would do evil if it added a new example to our many examples of showy wealth--if it gave the sanction of its dignity to the race of expenditure. fourthly. we have come to regard the crown as the head of our morality. the virtues of queen victoria and the virtues of george iii. have sunk deep into the popular heart. we have come to believe that it is natural to have a virtuous sovereign, and that the domestic virtues are as likely to be found on thrones as they are eminent when there. but a little experience and less thought show that royalty cannot take credit for domestic excellence. neither george i., nor george ii., nor william iv. were patterns of family merit; george iv. was a model of family demerit. the plain fact is, that to the disposition of all others most likely to go wrong, to an excitable disposition, the place of a constitutional king has greater temptations than almost any other, and fewer suitable occupations than almost any other. all the world and all the glory of it, whatever is most attractive, whatever is most seductive, has always been offered to the prince of wales of the day, and always will be. it is not rational to expect the best virtue where temptation is applied in the most trying form at the frailest time of human life. the occupations of a constitutional monarch are grave, formal, important, but never exciting; they have nothing to stir eager blood, awaken high imagination, work off wild thoughts. on men like george iii., with a predominant taste for business occupations, the routine duties of constitutional royalty have doubtless a calm and chastening effect. the insanity with which he struggled, and in many cases struggled very successfully, during many years, would probably have burst out much oftener but for the sedative effect of sedulous employment. but how few princes have ever felt the anomalous impulse for real work; how uncommon is that impulse anywhere; how little are the circumstances of princes calculated to foster it; how little can it be relied on as an ordinary breakwater to their habitual temptations! grave and careful men may have domestic virtues on a constitutional throne, but even these fail sometimes, and to imagine that men of more eager temperaments will commonly produce them, is to expect grapes from thorns and figs from thistles. lastly, constitutional royalty has the function which i insisted on at length in my last essay, and which, though it is by far the greatest, i need not now enlarge upon again. it acts as a disguise. it enables our real rulers to change without heedless people knowing it. the masses of englishmen are not fit for an elective government; if they knew how near they were to it, they would be surprised, and almost tremble. of a like nature is the value of constitutional royalty in times of transition. the greatest of all helps to the substitution of a cabinet government for a preceding absolute monarchy is the accession of a king favourable to such a government, and pledged to it. cabinet government, when new, is weak in time of trouble. the prime minister--the chief on whom everything depends, who must take responsibility if any one is to take it, who must use force if any one is to use it--is not fixed in power. he holds his place, by the essence of the government, with some uncertainty. among a people well-accustomed to such a government, such a functionary may be bold: he may rely, if not on the parliament, on the nation which understands and values him. but when that government has only recently been introduced, it is difficult for such a minister to be as bold as he ought to be. his power rests too much on human reason, and too little on human instinct. the traditional strength of the hereditary monarch is at these times of incalculable use. it would have been impossible for england to get through the first years after but for the singular ability of william iii. it would have been impossible for italy to have attained and kept her freedom without the help of victor emmanuel: neither the work of cavour nor the work of garibaldi were more necessary than his. but the failure of louis philippe to use his reserve power as constitutional monarch is the most instructive proof how great that reserve power is. in february, , guizot was weak because his tenure of office was insecure. louis philippe should have made that tenure certain. parliamentary reform might afterwards have been conceded to instructed opinion, but nothing ought to have been conceded to the mob. the parisian populace ought to have been put down, as guizot wished. if louis philippe had been a fit king to introduce free government, he would have strengthened his ministers when they were the instruments of order, even if he afterwards discarded them when order was safe, and policy could be discussed. but he was one of the cautious men who are "noted" to fail in old age: though of the largest experience and of great ability, he failed and lost his crown for want of petty and momentary energy, which at such a crisis a plain man would have at once put forth. such are the principal modes in which the institution of royalty by its august aspect influences mankind, and in the english state of civilisation they are invaluable. of the actual business of the sovereign--the real work the queen does--i shall speak in my next paper. ii. the house of commons has inquired into most things, but has never had a committee on "the queen". there is no authentic blue-book to say what she does. such an investigation cannot take place; but if it could, it would probably save her much vexatious routine, and many toilsome and unnecessary hours. the popular theory of the english constitution involves two errors as to the sovereign. first, in its oldest form at least, it considers him as an "estate of the realm," a separate co-ordinate authority with the house of lords and the house of commons. this and much else the sovereign once was, but this he is no longer. that authority could only be exercised by a monarch with a legislative veto. he should be able to reject bills, if not as the house of commons rejects them, at least as the house of peers rejects them. but the queen has no such veto. she must sign her own death-warrant if the two houses unanimously send it up to her. it is a fiction of the past to ascribe to her legislative power. she has long ceased to have any. secondly, the ancient theory holds that the queen is the executive. the american constitution was made upon a most careful argument, and most of that argument assumes the king to be the administrator of the english constitution, and an unhereditary substitute for him--viz., a president--to be peremptorily necessary. living across the atlantic, and misled by accepted doctrines, the acute framers of the federal constitution, even after the keenest attention, did not perceive the prime minister to be the principal executive of the british constitution, and the sovereign a cog in the mechanism. there is, indeed, much excuse for the american legislators in the history of that time. they took their idea of our constitution from the time when they encountered it. but in the so-called government of lord north, george iii. was the government. lord north was not only his appointee, but his agent. the minister carried on a war which he disapproved and hated, because it was a war which his sovereign approved and liked. inevitably, therefore, the american convention believed the king, from whom they had suffered, to be the real executive, and not the minister, from whom they had not suffered. if we leave literary theory, and look to our actual old law, it is wonderful how much the sovereign can do. a few years ago the queen very wisely attempted to make life peers, and the house of lords very unwisely, and contrary to its own best interests, refused to admit her claim. they said her power had decayed into non-existence; she once had it, they allowed, but it had ceased by long disuse. if any one will run over the pages of comyn's digest or any other such book, title "prerogative," he will find the queen has a hundred such powers which waver between reality and desuetude, and which would cause a protracted and very interesting legal argument if she tried to exercise them. some good lawyer ought to write a careful book to say which of these powers are really usable, and which are obsolete. there is no authentic explicit information as to what the queen can do, any more than of what she does. in the bare superficial theory of free institutions this is undoubtedly a defect. every power in a popular government ought to be known. the whole notion of such a government is that the political people--the governing people--rules as it thinks fit. all the acts of every administration are to be canvassed by it; it is to watch if such acts seem good, and in some manner or other to interpose if they seem not good. but it cannot judge if it is to be kept in ignorance; it cannot interpose if it does not know. a secret prerogative is an anomaly--perhaps the greatest of anomalies. that secrecy is, however, essential to the utility of english royalty as it now is. above all things our royalty is to be reverenced, and if you begin to poke about it you cannot reverence it. when there is a select committee on the queen, the charm of royalty will be gone. its mystery is its life. we must not let in daylight upon magic. we must not bring the queen into the combat of politics, or she will cease to be reverenced by all combatants; she will become one combatant among many. the existence of this secret power is, according to abstract theory, a defect in our constitutional polity, but it is a defect incident to a civilisation such as ours, where august and therefore unknown powers are needed, as well as known and serviceable powers. if we attempt to estimate the working of this inner power by the evidence of those, whether dead or living, who have been brought in contact with it, we shall find a singular difference. both the courtiers of george iii. and the courtiers of queen victoria are agreed as to the magnitude of the royal influence. it is with both an accepted secret doctrine that the crown does more than it seems. but there is a wide discrepancy in opinion as to the quality of that action. mr. fox did not scruple to describe the hidden influence of george iii. as the undetected agency of "an infernal spirit". the action of the crown at that period was the dread and terror of liberal politicians. but now the best liberal politicians say, "we shall never know, but when history is written our children may know, what we owe to the queen and prince albert". the mystery of the constitution, which used to be hated by our calmest, most thoughtful, and instructed statesmen, is now loved and reverenced by them. before we try to account for this change, there is one part of the duties of the queen which should be struck out of the discussion. i mean the formal part. the queen has to assent to and sign countless formal documents, which contain no matter of policy, of which the purport is insignificant, which any clerk could sign as well. one great class of documents george iii. used to read before he signed them, till lord thurlow told him, "it was nonsense his looking at them, for he could not understand them". but the worst case is that of commissions in the army. till an act passed only three years since the queen used to sign all military commissions, and she still signs all fresh commissions. the inevitable and natural consequence is that such commissions were, and to some extent still are, in arrears by thousands. men have often been known to receive their commissions for the first time years after they have left the service. if the queen had been an ordinary officer she would long since have complained, and long since have been relieved of this slavish labour. a cynical statesman is said to have defended it on the ground "that you may have a fool for a sovereign, and then it would be desirable he should have plenty of occupation in which he can do no harm". but it is in truth childish to heap formal duties of business upon a person who has of necessity so many formal duties of society. it is a remnant of the old days when george iii. would know everything, however trivial, and assent to everything, however insignificant. these labours of routine may be dismissed from the discussions. it is not by them that the sovereign acquires his authority either for evil or for good. the best mode of testing what we owe to the queen is to make a vigorous effort of the imagination, and see how we should get on without her. let us strip cabinet government of all its accessories, let us reduce it to its two necessary constituents--a representative assembly (a house of commons) and a cabinet appointed by that assembly--and examine how we should manage with them only. we are so little accustomed to analyse the constitution; we are so used to ascribe the whole effect of the constitution to the whole constitution, that a great many people will imagine it to be impossible that a nation should thrive or even live with only these two simple elements. but it is upon that possibility that the general imitability of the english government depends. a monarch that can be truly reverenced, a house of peers that can be really respected, are historical accidents nearly peculiar to this one island, and entirely peculiar to europe. a new country, if it is to be capable of a cabinet government, if it is not to degrade itself to presidential government, must create that cabinet out of its native resources--must not rely on these old world debris. many modes might be suggested by which a parliament might do in appearance what our parliament does in reality, viz., appoint a premier. but i prefer to select the simplest of all modes. we shall then see the bare skeleton of this polity, perceive in what it differs from the royal form, and be quite free from the imputation of having selected an unduly charming and attractive substitute. let us suppose the house of commons--existing alone and by itself--to appoint the premier quite simply, just as the shareholders of a railway choose a director. at each vacancy, whether caused by death or resignation, let any member or members have the right of nominating a successor; after a proper interval, such as the time now commonly occupied by a ministerial crisis, ten days or a fortnight, let the members present vote for the candidate they prefer; then let the speaker count the votes, and the candidate with the greatest number be premier. this mode of election would throw the whole choice into the hands of party organisation, just as our present mode does, except in so far as the crown interferes with it; no outsider would ever be appointed, because the immense number of votes which every great party brings into the field would far outnumber every casual and petty minority. the premier should not be appointed for a fixed time, but during good behaviour or the pleasure of parliament. mutatis mutandis, subject to the differences now to be investigated, what goes on now would go on then. the premier then, as now, must resign upon a vote of want of confidence, but the volition of parliament would then be the overt and single force in the selection of a successor, whereas it is now the predominant though latent force. it will help the discussion very much if we divide it into three parts. the whole course of a representative government has three stages--first, when a ministry is appointed; next, during its continuance; last, when it ends. let us consider what is the exact use of the queen at each of these stages, and how our present form of government differs in each, whether for good or for evil from that simpler form of cabinet government which might exist without her. at the beginning of an administration there would not be much difference between the royal and unroyal species of cabinet governments when there were only two great parties in the state, and when the greater of those parties was thoroughly agreed within itself who should be its parliamentary leader, and who therefore should be its premier. the sovereign must now accept that recognised leader; and if the choice were directly made by the house of commons, the house must also choose him; its supreme section, acting compactly and harmoniously, would sway its decisions without substantial resistance, and perhaps without even apparent competition. a predominant party, rent by no intestine demarcation, would be despotic. in such a case cabinet government would go on without friction whether there was a queen or whether there was no queen. the best sovereign could then achieve no good, and the worst effect no harm. but the difficulties are far greater when the predominant party is not agreed who should be its leader. in the royal form of cabinet government the sovereign then has sometimes a substantial selection; in the unroyal, who would choose? there must be a meeting at "willis's rooms"; there must be that sort of interior despotism of the majority over the minority within the party, by which lord john russell in was made to resign his pretensions to the supreme government, and to be content to serve as a subordinate to lord palmerston. the tacit compression which a party anxious for office would exercise over leaders who divided its strength, would be used and must be used. whether such a party would always choose precisely the best man may well be doubted. in a party once divided it is very difficult to secure unanimity in favour of the very person whom a disinterested bystander would recommend. all manner of jealousies and enmities are immediately awakened, and it is always difficult, often impossible, to get them to sleep again. but though such a party might not select the very best leader, they have the strongest motives to select a very good leader. the maintenance of their rule depends on it under a presidential constitution the preliminary caucuses which choose the president need not care as to the ultimate fitness of the man they choose. they are solely concerned with his attractiveness as a candidate; they need not regard his efficiency as a ruler. if they elect a man of weak judgment, he will reign his stated term; even though he show the best judgment, at the end of that term there will be by constitutional destiny another election. but under a ministerial government there is no such fixed destiny. the government is a removable government, its tenure depends upon its conduct. if a party in power were so foolish as to choose a weak man for its head, it would cease to be in power. its judgment is its life. suppose in that the whig party had determined to set aside both earl russell and lord palmerston and to choose for its head an incapable nonentity, the whig party would probably have been exiled from office at the schleswig-holstein difficulty. the nation would have deserted them, and parliament would have deserted them, too; neither would have endured to see a secret negotiation, on which depended the portentous alternative of war or peace, in the hands of a person who was thought to be weak--who had been promoted because of his mediocrity--whom his own friends did not respect. a ministerial government, too, is carried on in the face of day. its life is in debate. a president may be a weak man; yet if he keep good ministers to the end of his administration, he may not be found out--it may still be a dubious controversy whether he is wise or foolish. but a prime minister must show what he is. he must meet the house of commons in debate; he must be able to guide that assembly in the management of its business, to gain its ear in every emergency, to rule it in its hours of excitement. he is conspicuously submitted to a searching test, and if he fails he must resign. nor would any party like to trust to a weak man the great power which a cabinet government commits to its premier. the premier, though elected by parliament can dissolve parliament. members would be naturally anxious that the power which might destroy their coveted dignity should be lodged in fit hands. they dare not place in unfit hands a power which, besides hurting the nation, might altogether ruin them. we may be sure, therefore, that whenever the predominant party is divided, the un-royal form of cabinet government would secure for us a fair and able parliamentary leader--that it would give us a good premier, if not the very best. can it be said that the royal form does more? in one case i think it may. if the constitutional monarch be a man of singular discernment, of unprejudiced disposition, and great political knowledge, he may pick out from the ranks of the divided party its very best leader, even at a time when the party, if left to itself, would not nominate him. if the sovereign be able to play the part of that thoroughly intelligent but perfectly disinterested spectator who is so prominent in the works of certain moralists, he may be able to choose better for his subjects than they would choose for themselves. but if the monarch be not so exempt from prejudice, and have not this nearly miraculous discernment, it is not likely that he will be able to make a wiser choice than the choice of the party itself. he certainly is not under the same motive to choose wisely. his place is fixed whatever happens, but the failure of an appointing party depends on the capacity of their appointee. there is great danger, too, that the judgment of the sovereign may be prejudiced. for more than forty years the personal antipathies of george iii. materially impaired successive administrations. almost at the beginning of his career he discarded lord chatham: almost at the end he would not permit mr. pitt to coalesce with mr. fox. he always preferred mediocrity; he generally disliked high ability; he always disliked great ideas. if constitutional monarchs be ordinary men of restricted experience and common capacity (and we have no right to suppose that by miracle they will be more), the judgment of the sovereign will often be worse than the judgment of the party, and he will be very subject to the chronic danger of preferring a respectful common-place man, such as addington, to an independent first-rate man, such as pitt. we shall arrive at the same sort of mixed conclusion if we examine the choice of a premier under both systems in the critical case of cabinet government--the case of three parties. this is the case in which that species of government is most sure to exhibit its defects, and least likely to exhibit its merits. the defining characteristic of that government is the choice of the executive ruler by the legislative assembly; but when there are three parties a satisfactory choice is impossible. a really good selection is a selection by a large majority which trusts those it chooses, but when there are three parties there is no such trust. the numerically weakest has the casting vote--it can determine which candidate shall be chosen. but it does so under a penalty. it forfeits the right of voting for its own candidate. it settles which of other people's favourites shall be chosen, on condition of abandoning its own favourite. a choice based on such self-denial can never be a firm choice--it is a choice at any moment liable to be revoked. the events of , though not a perfect illustration of what i mean, are a sufficient illustration. the radical party, acting apart from the moderate liberal party, kept lord derby in power. the ultra-movement party thought it expedient to combine with the non-movement party. as one of them coarsely but clearly put it, "we get more of our way under these men than under the other men"; he meant that, in his judgment, the tories would be more obedient to the radicals than the whigs. but it is obvious that a union of opposites so marked could not be durable. the radicals bought it by choosing the men whose principles were most adverse to them; the conservatives bought it by agreeing to measures whose scope was most adverse to them. after a short interval the radicals returned to their natural alliance and their natural discontent with the moderate whigs. they used their determining vote first for a government of one opinion and then for a government of the contrary opinion. i am not blaming this policy. i am using it merely as an illustration. i say that if we imagine this sort of action greatly exaggerated and greatly prolonged parliamentary government becomes impossible. if there are three parties, no two of which will steadily combine for mutual action, but of which the weakest gives a rapidly oscillating preference to the two others, the primary condition of a cabinet polity is not satisfied. we have not a parliament fit to choose; we cannot rely on the selection of a sufficiently permanent executive, because there is no fixity in the thoughts and feelings of the choosers. under every species of cabinet government, whether the royal or the unroyal, this defect can be cured in one way only. the moderate people of every party must combine to support the government which, on the whole, suits every party best. this is the mode in which lord palmerston's administration has been lately maintained; a ministry in many ways defective, but more beneficially vigorous abroad, and more beneficially active at home, than the vast majority of english ministries. the moderate conservatives and the moderate radicals have maintained a steady government by a sufficiently coherent union with the moderate whigs. whether there is a king or no king, this perservative self-denial is the main force on which we must rely for the satisfactory continuance of a parliamentary government at this its period of greatest trial. will that moderation be aided or impaired by the addition of a sovereign? will it be more effectual under the royal sort of ministerial government, or will it be less effectual? if the sovereign has a genius for discernment, the aid which he can give at such a crisis will be great. he will select for his minister, and if possible maintain as his minister, the statesman upon whom the moderate party will ultimately fix their choice, but for whom at the outset it is blindly searching; being a man of sense, experience, and tact, he will discern which is the combination of equilibrium, which is the section with whom the milder members of the other sections will at last ally themselves. amid the shifting transitions of confused parties, it is probable that he will have many opportunities of exercising a selection. it will rest with him to call either on a b to form an administration, or upon x y, and either may have a chance of trial. a disturbed state of parties is inconsistent with fixity, but it abounds in momentary tolerance. wanting something, but not knowing with precision what, parties will accept for a brief period anything, to see whether it may be that unknown something--to see what it will do. during the long succession of weak governments which begins with the resignation of the duke of newcastle in and ends with the accession of mr. pitt in , the vigorous will of george iii. was an agency of the first magnitude. if at a period of complex and protracted division of parties, such as are sure to occur often and last long in every enduring parliamentary government, the extrinsic force of royal selection were always exercised discreetly, it would be a political benefit of incalculable value. but will it be so exercised? a constitutional sovereign must in the common course of government be a man of but common ability. i am afraid, looking to the early acquired feebleness of hereditary dynasties, that we must expect him to be a man of inferior ability. theory and experience both teach that the education of a prince can be but a poor education, and that a royal family will generally have less ability than other families. what right have we then to expect the perpetual entail on any family of an exquisite discretion, which if it be not a sort of genius, is at least as rare as genius? probably in most cases the greatest wisdom of a constitutional king would show itself in well-considered inaction. in the confused interval between and the queen and prince albert were far too wise to obtrude any selection of their own. if they had chosen, perhaps they would not have chosen lord palmerston. but they saw, or may be believed to have seen, that the world was settling down without them, and that by interposing an extrinsic agency, they would but delay the beneficial crystallisation of intrinsic forces. there is, indeed, a permanent reason which would make the wisest king, and the king who feels most sure of his wisdom, very slow to use that wisdom. the responsibility of parliament should be felt by parliament. so long as parliament thinks it is the sovereign's business to find a government it will be sure not to find a government itself. the royal form of ministerial government is the worst of all forms if it erect the subsidiary apparatus into the principal force, if it induce the assembly which ought to perform paramount duties to expect some one else to perform them. it should be observed, too, in fairness to the unroyal species of cabinet government, that it is exempt from one of the greatest and most characteristic defects of the royal species. where there is no court there can be no evil influence from a court. what these influences are every one knows; though no one, hardly the best and closest observer, can say with confidence and precision how great their effect is. sir robert walpole, in language too coarse for our modern manners, declared after the death of queen caroline, that he would pay no attention to the king's daughters ("those girls," as he called them), but would rely exclusively on madame de walmoden, the king's mistress. "the king," says a writer in george iv.'s time, "is in our favour, and what is more to the purpose, the marchioness of conyngham is so too." everybody knows to what sort of influences several italian changes of government since the unity of italy have been attributed. these sinister agencies are likely to be most effective just when everything else is troubled, and when, therefore, they are particularly dangerous. the wildest and wickedest king's mistress would not plot against an invulnerable administration. but very many will intrigue when parliament is perplexed, when parties are divided, when alternatives are many, when many evil things are possible, when cabinet government must be difficult. it is very important to see that a good administration can be started without a sovereign, because some colonial statesmen have doubted it. "i can conceive," it has been said, "that a ministry would go on well enough without a governor when it was launched, but i do not see how to launch it." it has even been suggested that a colony which broke away from england, and had to form its own government, might not unwisely choose a governor for life, and solely trusted with selecting ministers, something like the abbe sieyes's grand elector. but the introduction of such an officer into such a colony would in fact be the voluntary erection of an artificial encumbrance to it. he would inevitably be a party man. the most dignified post in the state must be an object of contest to the great sections into which every active political community is divided. these parties mix in everything and meddle in everything; and they neither would nor could permit the most honoured and conspicuous of all stations to be filled, except at their pleasure. they know, too, that the grand elector, the great chooser of ministries, might be, at a sharp crisis, either a good friend or a bad enemy. the strongest party would select some one who would be on their side when he had to take a side, who would incline to them when he did incline, who should be a constant auxiliary to them and a constant impediment to their adversaries. it is absurd to choose by contested party election an impartial chooser of ministers. but it is during the continuance of a ministry, rather than at its creation, that the functions of the sovereign will mainly interest most persons, and that most people will think them to be of the gravest importance. i own i am myself of that opinion. i think it may be shown that the post of sovereign over an intelligent and political people under a constitutional monarchy is the post which a wise man would choose above any other--where he would find the intellectual impulses best stimulated and the worst intellectual impulses best controlled. on the duties of the queen during an administration we have an invaluable fragment from her own hand. in louis napoleon had his coup d'etat: in lord john russell had his--he expelled lord palmerston. by a most instructive breach of etiquette he read in the house a royal memorandum on the duties of his rival. it is as follows: "the queen requires, first, that lord palmerston will distinctly state what he proposes in a given case, in order that the queen may know as distinctly to what she is giving her royal sanction. secondly, having once given her sanction to such a measure that it be not arbitrarily altered or modified by the minister. such an act she must consider as failing in sincerity towards the crown, and justly to be visited by the exercise of her constitutional right of dismissing that minister. she expects to be kept informed of what passes between him and foreign ministers before important decisions are taken based upon that intercourse; to receive the foreign despatches in good time; and to have the drafts for her approval sent to her in sufficient time to make herself acquainted with their contents before they must be sent off." in addition to the control over particular ministers, and especially over the foreign minister, the queen has a certain control over the cabinet. the first minister, it is understood, transmits to her authentic information of all the most important decisions, together with, what the newspapers would do equally well, the more important votes in parliament. he is bound to take care that she knows everything which there is to know as to the passing politics of the nation. she has by rigid usage a right to complain if she does not know of every great act of her ministry, not only before it is done, but while there is yet time to consider it--while it is still possible that it may not be done. to state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights--the right to be consulted, the right to encourage, the right to warn. and a king of great sense and sagacity would want no others. he would find that his having no others would enable him to use these with singular effect. he would say to his minister: "the responsibility of these measures is upon you. whatever you think best must be done. whatever you think best shall have my full and effectual support. but you will observe that for this reason and that reason what you propose to do is bad; for this reason and that reason what you do not propose is better. i do not oppose, it is my duty not to oppose; but observe that i warn." supposing the king to be right, and to have what kings often have, the gift of effectual expression, he could not help moving his minister. he might not always turn his course, but he would always trouble his mind. in the course of a long reign a sagacious king would acquire an experience with which few ministers could contend. the king could say: "have you referred to the transactions which happened during such and such an administration, i think about fourteen years ago? they afford an instructive example of the bad results which are sure to attend the policy which you propose. you did not at that time take so prominent a part in public life as you now do, and it is possible you do not fully remember all the events. i should recommend you to recur to them, and to discuss them with your older colleagues who took part in them. it is unwise to recommence a policy which so lately worked so ill." the king would indeed have the advantage which a permanent under-secretary has over his superior the parliamentary secretary--that of having shared in the proceedings of the previous parliamentary secretaries. these proceedings were part of his own life; occupied the best of his thoughts, gave him perhaps anxiety, perhaps pleasure, were commenced in spite of his dissuasion, or were sanctioned by his approval. the parliamentary secretary vaguely remembers that something was done in the time of some of his predecessors, when he very likely did not know the least or care the least about that sort of public business. he has to begin by learning painfully and imperfectly what the permanent secretary knows by clear and instant memory. no doubt a parliamentary secretary always can, and sometimes does, silence his subordinate by the tacit might of his superior dignity. he says: "i do not think there is much in all that. many errors were committed at the time you refer to which we need not now discuss." a pompous man easily sweeps away the suggestions of those beneath him. but though a minister may so deal with his subordinate, he cannot so deal with his king. the social force of admitted superiority by which he overturned his under-secretary is now not with him but against him. he has no longer to regard the deferential hints of an acknowledged inferior, but to answer the arguments of a superior to whom he has himself to be respectful. george iii. in fact knew the forms of public business as well or better than any statesman of his time. if, in addition to his capacity as a man of business and to his industry, he had possessed the higher faculties of a discerning states man, his influence would have been despotic. the old constitution of england undoubtedly gave a sort of power to the crown which our present constitution does not give. while a majority in parliament was principally purchased by royal patronage, the king was a party to the bargain either with his minister or without his minister. but even under our present constitution a monarch like george iii., with high abilities, would possess the greatest influence. it is known to all europe that in belgium king leopold has exercised immense power by the use of such means as i have described. it is known, too, to every one conversant with the real course of the recent history of england, that prince albert really did gain great power in precisely the same way. he had the rare gifts of a constitutional monarch. if his life had been prolonged twenty years, his name would have been known to europe as that of king leopold is known. while he lived he was at a disadvantage. the statesmen who had most power in england were men of far greater experience than himself. he might, and no doubt did, exercise a great, if not a commanding influence over lord malmesbury, but he could not rule lord palmerston. the old statesman who governed england, at an age when most men are unfit to govern their own families, remembered a whole generation of states men who were dead before prince albert was born. the two were of different ages and different natures. the elaborateness of the german prince--an elaborateness which has been justly and happily compared with that of goethe--was wholly alien to the half-irish, half-english, statesman. the somewhat boisterous courage in minor dangers, and the obtrusive use of an always effectual but not always refined, commonplace, which are lord palmerston's defects, doubtless grated on prince albert, who had a scholar's caution and a scholar's courage. the facts will be known to our children's children, though not to us. prince albert did much, but he died ere he could have made his influence felt on a generation of statesmen less experienced than he was, and anxious to learn from him. it would be childish to suppose that a conference between a minister and his sovereign can ever be a conference of pure argument. "the divinity which doth hedge a king" may have less sanctity than it had, but it still has much sanctity. no one, or scarcely any one, can argue with a cabinet minister in his own room as well as he would argue with another man in another room. he cannot make his own points as well; he cannot unmake as well the points presented to him. a monarch's room is worse. the best instance is lord chatham, the most dictatorial and imperious of english statesmen, and almost the first english statesman who was borne into power against the wishes of the king and against the wishes of the nobility--the first popular minister. we might have expected a proud tribune of the people to be dictatorial to his sovereign--to be to the king what he was to all others. on the contrary, he was the slave of his own imagination; there was a kind of mystic enchantment in vicinity to the monarch which divested him of his ordinary nature. "the least peep into the king's closet," said mr. burke, "intoxicates him, and will to the end of his life." a wit said that, even at the levee, he bowed so low that you could see the tip of his hooked nose between his legs. he was in the habit of kneeling at the bedside of george iii. while transacting business. now no man can argue on his knees. the same superstitious feeling which keeps him in that physical attitude will keep him in a corresponding mental attitude. he will not refute the bad arguments of the king as he will refute another man's bad arguments. he will not state his own best arguments effectively and incisively when he knows that the king would not like to hear them. in a nearly balanced argument the king must always have the better, and in politics many most important arguments are nearly balanced. whenever there was much to be said for the king's opinion it would have its full weight; whatever was said for the minister's opinion would only have a lessened and enfeebled weight. the king, too, possesses a power, according to theory, for extreme use on a critical occasion, but which he can in law use on any occasion. he can dissolve; he can say to his minister, in fact, if not in words, "this parliament sent you here, but i will see if i cannot get another parliament to send some one else here." george iii. well understood that it was best to take his stand at times and on points when it was perhaps likely, or at any rate not unlikely, the nation would support him. he always made a minister that he did not like tremble at the shadow of a possible successor. he had a cunning in such matters like the cunning of insanity. he had conflicts with the ablest men of his time, and he was hardly ever baffled. he understood how to help a feeble argument by a tacit threat, and how best to address it to an habitual deference. perhaps such powers as these are what a wise man would most seek to exercise and least fear to possess. to wish to be a despot, "to hunger after tyranny," as the greek phrase had it, marks in our day an uncultivated mind. a person who so wishes cannot have weighed what butler calls the "doubtfulness things are involved in". to be sure you are right to impose your will, or to wish to impose it, with violence upon others; to see your own ideas vividly and fixedly, and to be tormented till you can apply them in life and practice, not to like to hear the opinions of others, to be unable to sit down and weigh the truth they have, are but crude states of intellect in our present civilisation. we know, at least, that facts are many; that progress is complicated; that burning ideas (such as young men have) are mostly false and always incomplete. the notion of a far-seeing and despotic statesman, who can lay down plans for ages yet unborn, is a fancy generated by the pride of the human intellect to which facts give no support. the plans of charlemagne died with him; those of richelieu were mistaken; those of napoleon gigantesque and frantic. but a wise and great constitutional monarch attempts no such vanities. his career is not in the air; he labours in the world of sober fact; he deals with schemes which can be effected--schemes which are desirable--schemes which are worth the cost. he says to the ministry his people send to him, to ministry after ministry, "i think so and so; do you see if there is anything in it. i have put down my reasons in a certain memorandum, which i will give you. probably it does not exhaust the subject, but it will suggest materials for your consideration." by years of discussion with ministry after ministry, the best plans of the wisest king would certainly be adopted, and the inferior plans, the impracticable plans, rooted out and rejected. he could not be uselessly beyond his time, for he would have been obliged to convince the representatives, the characteristic men of his time. he would have the best means of proving that he was right on all new and strange matters, for he would have won to his side probably, after years of discussion, the chosen agents of the commonplace world--men who were where they were, because they had pleased the men of the existing age, who will never be much disposed to new conceptions or profound thoughts. a sagacious and original constitutional monarch might go to his grave in peace if any man could. he would know that his best laws were in harmony with his age; that they suited the people who were to work them, the people who were to be benefited by them. and he would have passed a happy life. he would have passed a life in which he could always get his arguments heard, in which he could always make those who have the responsibility of action think of them before they acted--in which he could know that the schemes which he had set at work in the world were not the casual accidents of an individual idiosyncrasy, which are mostly much wrong, but the likeliest of all things to be right--the ideas of one very intelligent man at last accepted and acted on by the ordinary intelligent many. but can we expect such a king, or, for that is the material point, can we expect a lineal series of such kings? every one has heard the reply of the emperor alexander to madame de stael, who favoured him with a declamation in praise of beneficent despotism. "yes, madame, but it is only a happy accident." he well knew that the great abilities and the good intentions necessary to make an efficient and good despot never were continuously combined in any line of rulers. he knew that they were far out of reach of hereditary human nature. can it be said that the characteristic qualities of a constitutional monarch are more within its reach? i am afraid it cannot. we found just now that the characteristic use of an hereditary constitutional monarch, at the outset of an administration, greatly surpassed the ordinary competence of hereditary faculties. i fear that an impartial investigation will establish the same conclusion as to his uses during the continuance of an administration. if we look at history, we shall find that it is only during the period of the present reign that in england the duties of a constitutional sovereign have ever been well performed. the first two georges were ignorant of english affairs, and wholly unable to guide them, whether well or ill; for many years in their time the prime minister had, over and above the labour of managing parliament, to manage the woman--sometimes the queen, sometimes the mistress--who managed the sovereign; george iii. interfered unceasingly, but he did harm unceasingly; george iv. and william iv. gave no steady continuing guidance, and were unfit to give it. on the continent, in first-class countries, constitutional royalty has never lasted out of one generation. louis philippe, victor emmanuel, and leopold are the founders of their dynasties; we must not reckon in constitutional monarchy any more than in despotic monarchy on the permanence in the descendants of the peculiar genius which founded the race. as far as experience goes, there is no reason to expect an hereditary series of useful limited monarchs. if we look to theory, there is even less reason to expect it. a monarch is useful when he gives an effectual and beneficial guidance to his ministers. but these ministers are sure to be among the ablest men of their time. they will have had to conduct the business of parliament so as to satisfy it; they will have to speak so as to satisfy it. the two together cannot be done save by a man of very great and varied ability. the exercise of the two gifts is sure to teach a man much of the world; and if it did not, a parliamentary leader has to pass through a magnificent training before he becomes a leader. he has to gain a seat in parliament; to gain the ear of parliament; to gain the confidence of parliament; to gain the confidence of his colleagues. no one can achieve these--no one, still more, can both achieve them and retain them--without a singular ability, nicely trained in the varied detail of life. what chance has an hereditary monarch such as nature forces him to be, such as history shows he is, against men so educated and so born? he can but be an average man to begin with; sometimes he will be clever, but sometimes he will be stupid; in the long run he will be neither clever nor stupid; he will be the simple, common man who plods the plain routine of life from the cradle to the grave. his education will be that of one who has never had to struggle; who has always felt that he has nothing to gain; who has had the first dignity given him; who has never seen common life as in truth it is. it is idle to expect an ordinary man born in the purple to have greater genius than an extraordinary man born out of the purple; to expect a man whose place has always been fixed to have a better judgment than one who has lived by his judgment; to expect a man whose career will be the same whether he is discreet or whether he is indiscreet to have the nice discretion of one who has risen by his wisdom, who will fall if he ceases to be wise. the characteristic advantage of a constitutional king is the permanence of his place. this gives him the opportunity of acquiring a consecutive knowledge of complex transactions, but it gives only an opportunity. the king must use it. there is no royal road to political affairs: their detail is vast, disagreeable, complicated, and miscellaneous. a king, to be the equal of his ministers in discussion, must work as they work; he must be a man of business as they are men of business. yet a constitutional prince is the man who is most tempted to pleasure, and the least forced to business. a despot must feel that he is the pivot of the state. the stress of his kingdom is upon him. as he is, so are his affairs. he may be seduced into pleasure; he may neglect all else; but the risk is evident. he will hurt himself; he may cause a revolution. if he becomes unfit to govern, some one else who is fit may conspire against him. but a constitutional king need fear nothing. he may neglect his duties, but he will not be injured. his place will be as fixed, his income as permanent, his opportunities of selfish enjoyment as full as ever. why should he work? it is true he will lose the quiet and secret influence which in the course of years industry would gain for him; but an eager young man, on whom the world is squandering its luxuries and its temptations, will not be much attracted by the distant prospect of a moderate influence over dull matters. he may form good intentions; he may say, "next year i will read these papers; i will try and ask more questions; i will not let these women talk to me so". but they will talk to him. the most hopeless idleness is that most smoothed with excellent plans. "the lord treasurer," says swift, "promised he will settle it to-night, and so he will say a hundred nights." we may depend upon it the ministry whose power will be lessened by the prince's attention will not be too eager to get him to attend. so it is if the prince come young to the throne; but the case is worse when he comes to it old or middle-aged. he is then unfit to work. he will then have spent the whole of youth and the first part of manhood in idleness, and it is unnatural to expect him to labour. a pleasure-loving lounger in middle life will not begin to work as george iii. worked, or as prince albert worked. the only fit material for a constitutional king is a prince who begins early to reign--who in his youth is superior to pleasure--who in his youth is willing to labour--who has by nature a genius for discretion. such kings are among god's greatest gifts, but they are also among his rarest. an ordinary idle king on a constitutional throne will leave no mark on his time: he will do little good and as little harm; the royal form of cabinet government will work in his time pretty much as the unroyal. the addition of a cypher will not matter though it take precedence of the significant figures. but corruptio optimi pessima. the most evil case of the royal form is far worse than the most evil case of the unroyal. it is easy to imagine, upon a constitutional throne, an active and meddling fool who always acts when he should not, who never acts when he should, who warns his ministers against their judicious measures, who encourages them in their injudicious measures. it is easy to imagine that such a king should be the tool of others; that favourites should guide him; that mistresses should corrupt him; that the atmosphere of a bad court should be used to degrade free government. we have had an awful instance of the dangers of constitutional royalty. we have had the case of a meddling maniac. during great part of his life george iii.'s reason was half upset by every crisis. throughout his life he had an obstinacy akin to that of insanity. he was an obstinate and an evil influence; he could not be turned from what was inexpedient; by the aid of his station he turned truer but weaker men from what was expedient. he gave an excellent moral example to his contemporaries, but he is an instance of those whose good dies with them, while their evil lives after them. he prolonged the american war, perhaps he caused the american war, so we inherit the vestiges of an american hatred; he forbade mr. pitt's wise plans, so we inherit an irish difficulty. he would not let us do right in time, so now our attempts at right are out of time and fruitless. constitutional royalty under an active and half-insane king is one of the worst of governments. there is in it a secret power which is always eager, which is generally obstinate, which is often wrong, which rules ministers more than they know themselves, which overpowers them much more than the public believe, which is irresponsible because it is inscrutable, which cannot be prevented because it cannot be seen. the benefits of a good monarch are almost invaluable, but the evils of a bad monarch are almost irreparable. we shall find these conclusions confirmed if we examine the powers and duties of an english monarch at the break-up of an administration. but the power of dissolution and the prerogative of creating peers, the cardinal powers of that moment are too important and involve too many complex matters to be sufficiently treated at the very end of a paper as long as this. no. iv. the house of lords. in my last essay i showed that it was possible for a constitutional monarch to be, when occasion served, of first-rate use both at the outset and during the continuance of an administration; but that in matter of fact it was not likely that he would be useful. the requisite ideas, habits, and faculties, far surpass the usual competence of an average man, educated in the common manner of sovereigns. the same arguments are entirely applicable at the close of an administration. but at that conjuncture the two most singular prerogatives of an english king--the power of creating new peers and the power of dissolving the commons--come into play; and we cannot duly criticise the use or misuse of these powers till we know what the peers are and what the house of commons is. the use of the house of lords or, rather, of the lords, in its dignified capacity--is very great. it does not attract so much reverence as the queen, but it attracts very much. the office of an order of nobility is to impose on the common people--not necessarily to impose on them what is untrue, yet less what is hurtful; but still to impose on their quiescent imaginations what would not otherwise be there. the fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol, and there is much that it can scarcely make out with a symbol. nobility is the symbol of mind. it has the marks from which the mass of men always used to infer mind, and often still infer it. a common clever man who goes into a country place will get no reverence; but the "old squire" will get reverence. even after he is insolvent, when every one knows that his ruin is but a question of time, he will get five times as much respect from the common peasantry as the newly-made rich man who sits beside him. the common peasantry will listen to his nonsense more submissively than to the new man's sense. an old lord will get infinite respect. his very existence is so far useful that it awakens the sensation of obedience to a sort of mind in the coarse, dull, contracted multitude, who could neither appreciate nor perceive any other. the order of nobility is of great use, too, not only in what it creates, but in what it prevents. it prevents the rule of wealth--the religion of gold. this is the obvious and natural idol of the anglo-saxon. he is always trying to make money; he reckons everything in coin; he bows down before a great heap and sneers as he passes a little heap. he has a "natural instinctive admiration of wealth for its own sake". and within good limits the feeling is quite right. so long as we play the game of industry vigorously and eagerly (and i hope we shall long play it, for we must be very different from what we are if we do anything better), we shall of necessity respect and admire those who play successfully, and a little despise those who play unsuccessfully. whether this feeling be right or wrong, it is useless to discuss; to a certain degree, it is involuntary; it is not for mortals to settle whether we will have it or not; nature settles for us that, within moderate limits, we must have it. but the admiration of wealth in many countries goes far beyond this; it ceases to regard in any degree the skill of acquisition; it respects wealth in the hands of the inheritor just as much as in the hands of the maker; it is a simple envy and love of a heap of gold as a heap of gold. from this our aristocracy preserves us. there is no country where a "poor devil of a millionaire is so ill off as in england". the experiment is tried every day, and every day it is proved that money alone--money pur et simple--will not buy "london society". money is kept down, and, so to say, cowed by the predominant authority of a different power. but it may be said that this is no gain; that worship for worship, the worship of money is as good as the worship of rank. even granting that it were so, it is a great gain to society to have two idols: in the competition of idolatries the true worship gets a chance. but it is not true that the reverence for rank--at least, for hereditary rank--is as base as the reverence for money. as the world has gone, manner has been half-hereditary in certain castes, and manner is one of the fine arts. it is the style of society; it is in the daily-spoken intercourse of human beings what the art of literary expression is in their occasional written intercourse. in reverencing wealth we reverence not a man, but an appendix to a man; in reverencing inherited nobility, we reverence the probable possession of a great faculty--the faculty of bringing out what is in one. the unconscious grace of life may be in the middle classes: finely-mannered persons are born everywhere; but it ought to be in the aristocracy: and a man must be born with a hitch in his nerves if he has not some of it. it is a physiological possession of the race, though it is sometimes wanting in the individual. there is a third idolatry from which that of rank preserves us, and perhaps it is the worst of any--that of office. the basest deity is a subordinate employee, and yet just now in civilised governments it is the commonest. in france and all the best of the continent it rules like a superstition. it is to no purpose that you prove that the pay of petty officials is smaller than mercantile pay; that their work is more monotonous than mercantile work; that their mind is less useful and their life more tame. they are still thought to be greater and better. they are decords; they have a little red on the left breast of their coat, and no argument will answer that. in england, by the odd course of our society, what a theorist would desire has in fact turned up. the great offices, whether permanent or parliamentary, which require mind now give social prestige, and almost only those. an under-secretary of state with pounds a year is a much stronger man than the director of a finance company with pounds, and the country saves the difference. but except in a few offices like the treasury, which were once filled with aristocratic people, and have an odour of nobility at second-hand, minor place is of no social use. a big grocer despises the exciseman; and what in many countries would be thought impossible, the exciseman envies the grocer. solid wealth tells where there is no artificial dignity given to petty public functions. a clerk in the public service is "nobody"; and you could not make a common englishman see why he should be anybody. but it must be owned that this turning of society into a political expedient has half spoiled it. a great part of the "best" english people keep their mind in a state of decorous dulness. they maintain their dignity; they get obeyed; they are good and charitable to their dependants. but they have no notion of play of mind: no conception that the charm of society depends upon it. they think cleverness an antic, and have a constant though needless horror of being thought to have any of it. so much does this stiff dignity give the tone, that the few englishmen capable of social brilliancy mostly secrete it. they reserve it for persons whom they can trust, and whom they know to be capable of appreciating its nuances. but a good government is well worth a great deal of social dulness. the dignified torpor of english society is inevitable if we give precedence, not to the cleverest classes, but to the oldest classes, and we have seen how useful that is. the social prestige of the aristocracy is, as every one knows, immensely less than it was a hundred years or even fifty years since. two great movements--the two greatest of modern society--have been unfavourable to it. the rise of industrial wealth in countless forms has brought in a competitor which has generally more mind, and which would be supreme were it not for awkwardness and intellectual gene. every day our companies, our railways, our debentures, and our shares, tend more and more to multiply these surroundings of the aristocracy, and in time they will hide it. and while this undergrowth has come up, the aristocracy have come down. they have less means of standing out than they used to have. their power is in their theatrical exhibition, in their state. but society is every day becoming less stately. as our great satirist has observed, "the last duke of st. david's used to cover the north road with his carriages; landladies and waiters bowed before him. the present duke sneaks away from a railway station, smoking a cigar, in a brougham." the aristocracy cannot lead the old life if they would; they are ruled by a stronger power. they suffer from the tendency of all modern society to raise the average, and to lower--comparatively, and perhaps absolutely, to lower--the summit. as the picturesqueness, the featureliness, of society diminishes, aristocracy loses the single instrument of its peculiar power. if we remember the great reverence which used to be paid to nobility as such, we shall be surprised that the house of lords as an assembly, has always been inferior; that it was always just as now, not the first, but the second of our assemblies. i am not, of course, now speaking of the middle ages: i am not dealing with the embryo or the infant form of our constitution; i am only speaking of its adult form. take the times of sir r. walpole. he was prime minister because he managed the house of commons; he was turned out because he was beaten on an election petition in that house; he ruled england because he ruled that house. yet the nobility were then the governing power in england. in many districts the word of some lord was law. the "wicked lord lowther," as he was called, left a name of terror in westmoreland during the memory of men now living. a great part of the borough members and a great part of the county members were their nominees; an obedient, unquestioning deference was paid them. as individuals the peers were the greatest people; as a house the collected peers were but the second house. several causes contributed to create this anomaly, but the main cause was a natural one. the house of peers has never been a house where the most important peers were most important. it could not be so. the qualities which fit a man for marked eminence, in a deliberative assembly, are not hereditary, and are not coupled with great estates. in the nation, in the provinces, in his own province, a duke of devonshire, or a duke of bedford, was a much greater man than lord thurlow. they had great estates, many boroughs, innumerable retainers, followings like a court. lord thurlow had no boroughs, no retainers; he lived on his salary. till the house of lords met, the dukes were not only the greatest, but immeasurably the greatest. but as soon as the house met, lord thurlow became the greatest. he could speak, and the others could not speak. he could transact business in half an hour which they could not have transacted in a day, or could not have transacted at all. when some foolish peer, who disliked his domination, sneered at his birth, he had words to meet the case: he said it was better for any one to owe his place to his own exertions than to owe it to descent, to being the "accident of an accident". but such a house as this could not be pleasant to great noblemen. they could not like to be second in their own assembly (and yet that was their position from age to age) to a lawyer who was of yesterday,--whom everybody could remember without briefs, who had talked for "hire," who had "hungered after six-and-eightpence". great peers did not gain glory from the house; on the contrary, they lost glory when they were in the house. they devised two expedients to get out of this difficulty: they invented proxies which enabled them to vote without being present, without being offended by vigour and invective, without being vexed by ridicule, without leaving the rural mansion or the town palace where they were demigods. and what was more effectual still, they used their influence in the house of commons instead of the house of lords. in that indirect manner a rural potentate, who half returned two county members, and wholly returned two borough members, who perhaps gave seats to members of the government, who possibly seated the leader of the opposition, became a much greater man than by sitting on his own bench, in his own house, hearing a chancellor talk. the house of lords was a second-rate force, even when the peers were a first-rate force, because the greatest peers, those who had the greatest social importance, did not care for their own house, or like it, but gained great part of their political power by a hidden but potent influence in the competing house. when we cease to look at the house of lords under its dignified aspect, and come to regard it under its strictly useful aspect, we find the literary theory of the english constitution wholly wrong, as usual. this theory says that the house of lords is a co-ordinate estate of the realm, of equal rank with the house of commons; that it is the aristocratic branch, just as the commons is the popular branch; and that by the principle of our constitution the aristocratic branch has equal authority with the popular branch. so utterly false is this doctrine that it is a remarkable peculiarity, a capital excellence of the british constitution, that it contains a sort of upper house, which is not of equal authority to the lower house, yet still has some authority. the evil of two co-equal houses of distinct natures is obvious. each house can stop all legislation, and yet some legislation may be necessary. at this moment we have the best instance of this which could be conceived. the upper house of our victorian constitution, representing the rich wool-growers, has disagreed with the lower assembly, and most business is suspended. but for a most curious stratagem, the machine of government would stand still. most constitutions have committed this blunder. the two most remarkable republican institutions in the world commit it. in both the american and the swiss constitutions the upper house has as much authority as the second: it could produce the maximum of impediment--the dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the chamber. in both these constitutions, this dangerous division is defended by a peculiar doctrine with which i have nothing to do now. it is said that there must be in a federal government some institution, some authority, some body possessing a veto in which the separate states composing the confederation are all equal. i confess this doctrine has to me no self-evidence, and it is assumed, but not proved. the state of delaware is not equal in power or influence to the state of new york, and you cannot make it so by giving it an equal veto in an upper chamber. the history of such an institution is indeed most natural. a little state will like, and must like, to see some token, some memorial mark of its old independence preserved in the constitution by which that independence is extinguished. but it is one thing for an institution to be natural, and another for it to be expedient. if indeed it be that a federal government compels the erection of an upper chamber of conclusive and co-ordinate authority, it is one more in addition to the many other inherent defects of that kind of government. it may be necessary to have the blemish, but it is a blemish just as much. there ought to be in every constitution an available authority somewhere. the sovereign power must be come-at-able. and the english have made it so. the house of lords, at the passing of the reform act of , was as unwilling to concur with the house of commons as the upper chamber at victoria to concur with the lower chamber. but it did concur. the crown has the authority to create new peers; and the king of the day had promised the ministry of the day to create them. the house of lords did not like the precedent, and they passed the bill. the power was not used, but its existence was as useful as its energy. just as the knowledge that his men can strike makes a master yield in order that they may not strike, so the knowledge that their house could be swamped at the will of the king--at the will of the people--made the lords yield to the people. from the reform act the function of the house of lords has been altered in english history. before that act it was, if not a directing chamber, at least a chamber of directors. the leading nobles, who had most influence in the commons, and swayed the commons, sat there. aristocratic influence was so powerful in the house of commons, that there never was any serious breach of unity. when the houses quarrelled, it was as in the great aylesbury case, about their respective privileges, and not about the national policy. the influence of the nobility was then so potent, that it was not necessary to exert it. the english constitution, though then on this point very different from what it now is, did not even then contain the blunder of the victorian or of the swiss constitution. it had not two houses of distinct origin; it had two houses of common origin--two houses in which the predominant element was the same. the danger of discordance was obviated by a latent unity. since the reform act the house of lords has become a revising and suspending house. it can alter bills; it can reject bills on which the house of commons is not yet thoroughly in earnest--upon which the nation is not yet determined. their veto is a sort of hypothetical veto. they say, we reject your bill for this once or these twice, or even these thrice: but if you keep on sending it up, at last we won't reject it. the house has ceased to be one of latent directors, and has become one of temporary rejectors and palpable alterers. it is the sole claim of the duke of wellington to the name of a statesman, that he presided over this change. he wished to guide the lords to their true position, and he did guide them. in , in the crisis of the corn-law struggle, and when it was a question whether the house of lords should resist or yield, he wrote a very curious letter to the late lord derby:-- "for many years, indeed from the year , when i retired from office, i have endeavoured to manage the house of lords upon the principle on which i conceive that the institution exists in the constitution of the country, that of conservatism. i have invariably objected to all violent and extreme measures, which is not exactly the mode of acquiring influence in a political party in england, particularly one in opposition to government. i have invariably supported government in parliament upon important occasions, and have always exercised my personal influence to prevent the mischief of anything like a difference or division between the two houses,--of which there are some remarkable instances, to which i will advert here, as they will tend to show you the nature of my management, and possibly, in some degree, account for the extraordinary power which i have for so many years exercised, without any apparent claim to it." upon finding the difficulties in which the late king william was involved by a promise made to create peers, the number, i believe, indefinite, i determined myself, and i prevailed upon others, the number very large, to be absent from the house in the discussion of the last stages of the reform bill, after the negotiations had failed for the formation of a new administration. this course gave at the time great dissatisfaction to the party; notwithstanding that i believe it saved the existence of the house of lords at the time, and the constitution of the country. "subsequently, throughout the period from to , i prevailed upon the house of lords to depart from many principles and systems which they as well as i had adopted and voted on irish tithes, irish corporations, and other measures, much to the vexation and annoyance of many. but i recollect one particular measure, the union of the provinces of upper and lower canada, in the early stages of which i had spoken in opposition to the measure, and had protested against it; and in the last stages of it i prevailed upon the house to agree to, and pass it, in order to avoid the injury to the public interests of a dispute between the houses upon a question of such importance. then i supported the measures of the government, and protected the servant of the government, captain elliot, in china. all of which tended to weaken my influence with some of the party; others, possibly a majority, might have approved of the course which i took. it was at the same time well known that from the commencement at least of lord melbourne's government, i was in constant communication with it, upon all military matters, whether occurring at home or abroad, at all events. but likewise upon many others." "all this tended of course to diminish my influence in the conservative party, while it tended essentially to the ease and satisfaction of the sovereign, and to the maintenance of good order. at length came the resignation of the government by sir robert peel, in the month of december last, and the queen desiring lord john russell to form an administration. on the th of december the queen wrote to me the letter of which i enclose the copy, and the copy of my answer of the same date; of which it appears that you have never seen copies, although i communicated them immediately to sir robert peel. it was impossible for me to act otherwise than is indicated in my letter to the queen. i am the servant of the crown and people. i have been paid and rewarded, and i consider myself retained; and that i can't do otherwise than serve as required, when i can do so without dishonour, that is to say, as long as i have health and strength to enable me to serve. but it is obvious that there is, and there must be, an end of all connection and counsel between party and me. i might with consistency, and some may think that i ought to have declined to belong to sir robert peel's cabinet on the night of the th of december. but my opinion is, that if i had, sir robert peel's government would not have been framed; that we should have had ---- and ---- in office next morning. "but, at all events, it is quite obvious that when that arrangement comes, which sooner or later must come, there will be an end to all influence on my part over the conservative party, if i should be so indiscreet as to attempt to exercise any. you will see, therefore, that the stage is quite clear for you, and that you need not apprehend the consequences of differing in opinion from me when you will enter upon it; as in truth i have, by my letter to the queen of the th of december, put an end to the connection between the party and me, when the party will be in opposition to her majesty's government." "my opinion is, that the great object of all is that you should assume the station, and exercise the influence, which i have so long exercised in the house of lords. the question is, how is that object to be attained? by guiding their opinion and decision, or by following it? you will see that i have endeavoured to guide their opinion, and have succeeded upon some most remarkable occasions. but it has been by a good deal of management. "upon the important occasion and question now before the house, i propose to endeavour to induce them to avoid to involve the country in the additional difficulties of a difference of opinion, possibly a dispute between the houses, on a question in the decision of which it has been frequently asserted that their lordships had a personal interest; which assertion, however false as affecting each of them personally, could not be denied as affecting the proprietors of land in general. i am aware of the difficulty, but i don't despair of carrying the bill through. you must be the best judge of the course which you ought to take, and of the course most likely to conciliate the confidence of the house of lords. my opinion is, that you should advise the house to vote that which would tend most to public order, and would be most beneficial to the immediate interests of the country." this is the mode in which the house of lords came to be what it now is, a chamber with (in most cases) a veto of delay with (in most cases) a power of revision, but with no other rights or powers. the question we have to answer is, "the house of lords being such, what is the use of the lords?" the common notion evidently fails, that it is a bulwark against imminent revolution. as the duke's letter in every line evinces, the wisest members, the guiding members of the house, know that the house must yield to the people if the people is determined. the two cases--that of the reform act and the corn laws--were decisive cases. the great majority of the lords thought reform revolution, free-trade confiscation, and the two together ruin. if they could ever have been trusted to resist the people, they would then have resisted it. but in truth it is idle to expect a second chamber--a chamber of notables--ever to resist a popular chamber, a nation's chamber, when that chamber is vehement and the nation vehement too. there is no strength in it for that purpose. every class chamber, every minority chamber, so to speak, feels weak and helpless when the nation is excited. in a time of revolution there are but two powers, the sword and the people. the executive commands the sword; the great lesson which the first napoleon taught the parisian populace--the contribution he made to the theory of revolutions at the th brumaire--is now well known. any strong soldier at the head of the army can use the army. but a second chamber cannot use it. it is a pacific assembly composed of timid peers, aged lawyers, or, as abroad, clever litterateurs. such a body has no force to put down the nation, and if the nation will have it do something it must do it. the very nature, too, as has been seen, of the lords in the english constitution, shows that it cannot stop revolution. the constitution contains an exceptional provision to prevent it stopping it. the executive, the appointee of the popular chamber and the nation, can make new peers, and so create a majority in the peers; it can say to the lords, "use the powers of your house as we like, or you shall not use them at all. we will find others to use them; your virtue shall go out of you if it is not used as we like, and stopped when we please." an assembly under such a threat cannot arrest, and could not be intended to arrest, a determined and insisting executive. in fact the house of lords, as a house, is not a bulwark that will keep out revolution, but an index that revolution is unlikely. resting as it does upon old deference, and inveterate homage, it shows that the spasm of new forces, the outbreak of new agencies, which we call revolution, is for the time simply impossible. so long as many old leaves linger on the november trees, you know that there has been little frost and no wind; just so while the house of lords retains much power, you may know that there is no desperate discontent in the country, no wild agency likely to cause a great demolition. there used to be a singular idea that two chambers--a revising chamber and a suggesting chamber--were essential to a free government. the first person who threw a hard stone--an effectually hitting stone--against the theory was one very little likely to be favourable to democratic influence, or to be blind to the use of aristocracy; it was the present lord grey. he had to look at the matter practically. he was the first great colonial minister of england who ever set himself to introduce representative institutions into all her capable colonies, and the difficulty stared him in the face that in those colonies there were hardly enough good people for one assembly, and not near enough good people for two assemblies. it happened--and most naturally happened--that a second assembly was mischievous. the second assembly was either the nominee of the crown, which in such places naturally allied itself with better instructed minds, or was elected by people with a higher property qualification--some peculiarly well-judging people. both these choosers choose the best men in the colony, and put them into the second assembly. but thus the popular assembly was left without those best men. the popular assembly was denuded of those guides and those leaders who would have led and guided it best. those superior men were put aside to talk to one another, and perhaps dispute with one another; they were a concentrated instance of high but neutralised forces. they wished to do good, but they could do nothing. the lower house, with all the best people in the colony extracted, did what it liked. the democracy was strengthened rather than weakened by the isolation of its best opponents in a weak position. as soon as experience had shown this, or seemed to show it, the theory that two chambers were essential to a good and free government vanished away. with a perfect lower house it is certain that an upper house would be scarcely of any value. if we had an ideal house of commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. the work would be done so well that we should not want any one to look over or revise it. and whatever is unnecessary in government is pernicious. human life makes so much complexity necessary that an artificial addition is sure to do harm: you cannot tell where the needless bit of machinery will catch and clog the hundred needful wheels; but the chances are conclusive that it will impede them some where, so nice are they and so delicate. but though beside an ideal house of commons the lords would be unnecessary, and therefore pernicious, beside the actual house a revising and leisured legislature is extremely useful, if not quite necessary. at present the chance majorities on minor questions in the house of commons are subject to no effectual control. the nation never attends to any but the principal matters of policy and state. upon these it forms that rude, rough, ruling judgment which we call public opinion; but upon other things it does not think at all, and it would be useless for it to think. it has not the materials for forming a judgment: the detail of bills, the instrumental part of policy, the latent part of legislation, are wholly out of its way. it knows nothing about them, and could not find time or labour for the careful investigation by which alone they can be apprehended. a casual majority of the house of commons has therefore dominant power: it can legislate as it wishes. and though the whole house of commons upon great subjects very fairly represents public opinion, and though its judgment upon minor questions is, from some secret excellencies in its composition, remarkably sound and good; yet, like all similar assemblies, it is subject to the sudden action of selfish combinations. there are said to be "members for the railways" in the present parliament. if these choose to combine on a point which the public does not care for, and which they care for because it affects their purse, they are absolute. a formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule. the most dangerous of all sinister interests is that of the executive government, because it is the most powerful. it is perfectly possible--it has happened and will happen again--that the cabinet, being very powerful in the commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. if, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better; the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution. every large assembly is, moreover, a fluctuating body; it is not one house, so to say, but a set of houses; it is one set of men to-night and another to-morrow night. a certain unity is doubtless preserved by the duty which the executive is supposed to undertake, and does undertake, of keeping a house; a constant element is so provided about which all sorts of variables accumulate and pass away. but even after due allowance for the full weight of this protective machinery, our house of commons is, as all such chambers must be, subject to sudden turns and bursts of feeling, because the members who compose it change from time to time. the pernicious result is perpetual in our legislation; many acts of parliament are medleys of different motives, because the majority which passed one set of its clauses is different from that which passed another set. but the greatest defect of the house of commons is that it has no leisure. the life of the house is the worst of all lives--a life of distracting routine. it has an amount of business brought before it such as no similar assembly ever has had. the british empire is a miscellaneous aggregate, and each bit of the aggregate brings its bit of business to the house of commons. it is india one day and jamaica the next; then again china, and then schleswig-holstein. our legislation touches on all subjects, because our country contains all ingredients. the mere questions which are asked of the ministers run over half human affairs; the private bill acts, the mere privilegia of our government--subordinate as they ought to be--probably give the house of commons more absolute work than the whole business, both national and private, of any other assembly which has ever sat. the whole scene is so encumbered with changing business, that it is hard to keep your head in it. whatever, too, may be the case hereafter, when a better system has been struck out, at present the house does all the work of legislation, all the detail, and all the clauses itself. one of the most helpless exhibitions of helpless ingenuity and wasted mind is a committee of the whole house on a bill of many clauses which eager enemies are trying to spoil, and various friends are trying to mend. an act of parliament is at least as complex as a marriage settlement; and it is made much as a settlement would be if it were left to the vote and settled by the major part of persons concerned, including the unborn children. there is an advocate for every interest, and every interest clamours for every advantage. the executive government by means of its disciplined forces, and the few invaluable members who sit and think, preserves some sort of unity. but the result is very imperfect. the best test of a machine is the work it turns out. let any one who knows what legal documents ought to be, read first a will he has just been making and then an act of parliament; he will certainly say, "i would have dismissed my attorney if he had done my business as the legislature has done the nation's business". while the house of commons is what it is, a good revising, regulating and retarding house would be a benefit of great magnitude. but is the house of lords such a chamber? does it do this work? this is almost an undiscussed question. the house of lords, for thirty years at least, has been in popular discussion an accepted matter. popular passion has not crossed the path, and no vivid imagination has been excited to clear the matter up. the house of lords has the greatest merit which such a chamber can have; it is possible. it is incredibly difficult to get a revising assembly, because it is difficult to find a class of respected revisers. a federal senate, a second house, which represents state unity, has this advantage; it embodies a feeling at the root of society--a feeling which is older than complicated politics, which is stronger a thousand times over than common political feelings--the local feeling. "my shirt," said the swiss state-right patriot, "is dearer to me than my coat." every state in the american union would feel that disrespect to the senate was disrespect to itself. accordingly, the senate is respected; whatever may be the merits or demerits of its action, it can act; it is real, independent, and efficient. but in common governments it is fatally difficult to make an unpopular entity powerful in a popular government. it is almost the same thing to say that the house of lords is independent. it would not be powerful, it would not be possible, unless it were known to be independent. the lords are in several respects more independent than the commons; their judgment may not be so good a judgment, but it is emphatically their own judgment. the house of lords, as a body, is accessible to no social bribe. and this, in our day, is no light matter. many members of the house of commons, who are to be influenced by no other manner of corruption, are much influenced by this its most insidious sort. the conductors of the press and the writers for it are worse--at least the more influential who come near the temptation; for "position," as they call it, for a certain intimacy with the aristocracy, some of them would do almost anything and say almost anything. but the lords are those who give social bribes, and not those who take them. they are above corruption because they are the corruptors. they have no constituency to fear or wheedle; they have the best means of forming a disinterested and cool judgment of any class in the country. they have, too, leisure to form it. they have no occupations to distract them which are worth the name. field sports are but playthings, though some lords put an englishman's seriousness into them. few englishmen can bury themselves in science or literature; and the aristocracy have less, perhaps, of that impetus than the middle classes. society is too correct and dull to be an occupation, as in other times and ages it has been. the aristocracy live in the fear of the middle classes--of the grocer and the merchant. they dare not frame a society of enjoyment as the french aristocracy once formed it. politics are the only occupation a peer has worth the name. he may pursue them undistractedly. the house of lords, besides independence to revise judicially and position to revise effectually, has leisure to revise intellectually. these are great merits: and, considering how difficult it is to get a good second chamber, and how much with our present first chamber we need a second, we may well be thankful for them. but we must not permit them to blind our eyes. those merits of the lords have faults close beside them which go far to make them useless. with its wealth, its place, and its leisure, the house of lords would, on the very surface of the matter, rule us far more than it does if it had not secret defects which hamper and weaken it. the first of these defects is hardly to be called secret, though, on the other hand, it is not well known. a severe though not unfriendly critic of our institutions said that "the cure for admiring the house of lords was to go and look at it"--to look at it not on a great party field-day, or at a time of parade, but in the ordinary transaction of business. there are perhaps ten peers in the house, possibly only six; three is the quorum for transacting business. a few more may dawdle in or not dawdle in: those are the principal speakers, the lawyers (a few years ago when lyndhurst, brougham, and campbell were in vigour, they were by far the predominant talkers) and a few statesmen whom every one knows. but the mass of the house is nothing. this is why orators trained in the commons detest to speak in the lords. lord chatham used to call it the "tapestry". the house of commons is a scene of life if ever there was a scene of life. every member in the throng, every atom in the medley, has his own objects (good or bad), his own purposes (great or petty); his own notions, such as they are, of what is; his own notions, such as they are, of what ought to be. there is a motley confluence of vigorous elements, but the result is one and good. there is a "feeling of the house," a "sense" of the house, and no one who knows anything of it can despise it. a very shrewd man of the world went so far as to say that "the house of commons has more sense than any one in it". but there is no such "sense" in the house of lords, because there is no life. the lower chamber is a chamber of eager politicians; the upper (to say the least) of not eager ones. this apathy is not, indeed, as great as the outside show would indicate. the committees of the lords (as is well known) do a great deal of work and do it very well. and such as it is, the apathy is very natural. a house composed of rich men who can vote by proxy without coming will not come very much.[ ] but after every abatement the real indifference to their duties of most peers is a great defect, and the apparent indifference is a dangerous defect. as far as politics go there is profound truth in lord chesterfield's axiom, that "the world must judge of you by what you seem, not by what you are". the world knows what you seem; it does not know what you are. an assembly--a revising assembly especially--which does not assemble, which looks as if it does not care how it revises, is defective in a main political ingredient. it may be of use, but it will hardly convince mankind that it is so. [ ] in accordance with a recent resolution of the house of lords proxies are now disused.--note to second edition. the next defect is even more serious: it affects not simply the apparent work of the house of lords but the real work. for a revising legislature, it is too uniformly made up. errors are of various kinds; but the constitution of the house of lords only guards against a single error--that of too quick change. the lords--leaving out a few lawyers and a few outcasts--are all landowners of more or less wealth. they all have more or less the opinions, the merits, the faults of that one class. they revise legislation, as far as they do revise it, exclusively according to the supposed interests, the predominant feelings, the inherited opinions, of that class. since the reform act, this uniformity of tendency has been very evident. the lords have felt--it would be harsh to say hostile, but still dubious, as to the new legislation. there was a spirit in it alien to their spirit, and which when they could they have tried to cast out. that spirit is what has been termed the "modern spirit". it is not easy to concentrate its essence in a phrase; it lives in our life, animates our actions, suggests our thoughts. we all know what it means, though it would take an essay to limit it and define it. to this the lords object; wherever it is concerned, they are not impartial revisers, but biassed revisers. this singleness of composition would be no fault; it would be, or might be, even a merit, if the criticism of the house of lords, though a suspicious criticism, were yet a criticism of great understanding. the characteristic legislation of every age must have characteristic defects; it is the outcome of a character, of necessity faulty and limited. it must mistake some kind of things; it must overlook some other. if we could get hold of a complemental critic, a critic who saw what the age did not see, and who saw rightly what the age mistook, we should have a critic of inestimable value. but is the house of lords that critic? can it be said that its unfriendliness to the legislation of the age is founded on a perception of what the age does not see, and a rectified perception of what the age does see? the most extreme partisan, the most warm admirer of the lords, if of fair and tempered mind, cannot say so. the evidence is too strong. on free trade, for example, no one can doubt that the lords--in opinion, in what they wished to do, and would have done, if they had acted on their own minds--were utterly wrong. this is the clearest test of the "modern spirit". it is easier here to be sure it is right than elsewhere. commerce is like war; its result is patent. do you make money or do you not make it? there is as little appeal from figures as from battle. now no one can doubt that england is a great deal better off because of free trade; that it has more money, and that its money is diffused more as we should wish it diffused. in the one case in which we can unanswerably test the modern spirit, it was right, and the dubious upper house--the house which would have rejected it, if possible--was wrong. there is another reason. the house of lords, being an hereditary chamber, cannot be of more than common ability. it may contain--it almost always has contained, it almost always will contain--extraordinary men. but its average born law-makers cannot be extraordinary. being a set of eldest sons picked out by chance and history, it cannot be very wise. it would be a standing miracle if such a chamber possessed a knowledge of its age superior to the other men of the age; if it possessed a superior and supplemental knowledge; if it descried what they did not discern, and saw truly that which they saw, indeed, but saw untruly. the difficulty goes deeper. the task of revising, of adequately revising the legislation of this age, is not only that which an aristocracy has no facility in doing, but one which it has a difficulty in doing. look at the statute book for --the statutes at large for the year. you will find, not pieces of literature, not nice and subtle matters, but coarse matters, crude heaps of heavy business. they deal with trade, with finance, with statute-law reform, with common-law reform; they deal with various sorts of business, but with business always. and there is no educated human being less likely to know business, worse placed for knowing business than a young lord. business is really more agreeable than pleasure; it interests the whole mind, the aggregate nature of man more continuously, and more deeply. but it does not look as if it did. it is difficult to convince a young man, who can have the best of pleasure, that it will. a young lord just come into , pounds a year will not, as a rule, care much for the law of patents, for the law of "passing tolls," or the law of prisons. like hercules, he may choose virtue, but hardly hercules could choose business. he has everything to allure him from it, and nothing to allure him to it. and even if he wish to give himself to business, he has indifferent means. pleasure is near him, but business is far from him. few things are more amusing than the ideas of a well-intentioned young man, who is born out of the business world, but who wishes to take to business, about business. he has hardly a notion in what it consists. it really is the adjustment of certain particular means to equally certain particular ends. but hardly any young man destitute of experience is able to separate end and means. it seems to him a kind of mystery; and it is lucky if he do not think that the forms are the main part, and that the end is but secondary. there are plenty of business men falsely so called, who will advise him so. the subject seems a kind of maze. "what would you recommend me to read?" the nice youth asks; and it is impossible to explain to him that reading has nothing to do with it, that he has not yet the original ideas in his mind to read about; that administration is an art as painting is an art; and that no book can teach the practice of either. formerly this defect in the aristocracy was hidden by their own advantages. being the only class at ease for money and cultivated in mind they were without competition; and though they might not be, as a rule, and extraordinary ability excepted, excellent in state business, they were the best that could be had. even in old times, however, they sheltered themselves from the greater pressure of coarse work. they appointed a manager--a peel or a walpole, anything but an aristocrat in manner or in nature--to act for them or manage for them. but now a class is coming up trained to thought, full of money, and yet trained to business. as i write, two members of this class have been appointed to stations considerable in themselves, and sure to lead (if anything is sure in politics) to the cabinet and power. this is the class of highly-cultivated men of business who, after a few years, are able to leave business and begin ambition. as yet these men are few in public life, because they do not know their own strength. it is like columbus and the egg once again; a few original men will show it can be done, and then a crowd of common men will follow. these men know business partly from tradition, and this is much. there are university families--families who talk of fellowships, and who invest their children's ability in latin verses, as soon as they discover it; there used to be indian families of the same sort, and probably will be again when the competitive system has had time to foster a new breed. just so there are business families to whom all that concerns money, all that concerns administration, is as familiar as the air they breathe. all americans, it has been said, know business; it is in the air of their country. just so certain classes know business here; and a lord can hardly know it. it is as great a difficulty to learn business in a palace as it is to learn agriculture in a park. to one kind of business, indeed, this doctrine does not apply. there is one kind of business in which our aristocracy have still, and are likely to retain long, a certain advantage. this is the business of diplomacy. napoleon, who knew men well, would never, if he could help it, employ men of the revolution in missions to the old courts; he said, "they spoke to no one and no one spoke to them"; and so they sent home no information. the reason is obvious. the old-world diplomacy of europe was largely carried on in drawing-rooms, and, to a great extent, of necessity still is so. nations touch at their summits. it is always the highest class which travels most, knows most of foreign nations, has the least of the territorial sectarianism which calls itself patriotism, and is often thought to be so. even here, indeed, in england the new trade-class is in real merit equal to the aristocracy. their knowledge of foreign things is as great, and their contact with them often more. but, notwithstanding, the new race is not as serviceable for diplomacy as the old race. an ambassador is not simply an agent; he is also a spectacle. he is sent abroad for show as well as for substance; he is to represent the queen among foreign courts and foreign sovereigns. an aristocracy is in its nature better suited to such work; it is trained to the theatrical part of life; it is fit for that if it is fit for anything. but, with this exception, an aristocracy is necessarily inferior in business to the classes nearer business; and it is not, therefore, a suitable class, if we had our choice of classes, out of which to frame a chamber for revising matters of business. it is indeed a singular example how natural business is to the english race, that the house of lords works as well as it does. the common appearance of the "whole house" is a jest--a dangerous anomaly, which mr. bright will sometimes use; but a great deal of substantial work is done in "committees," and often very well done. the great majority of the peers do none of their appointed work, and could do none of it; but a minority--a minority never so large and never so earnest as in this age--do it, and do it well. still no one, who examines the matter without prejudice, can say that the work is done perfectly. in a country so rich in mind as england, far more intellectual power can be, and ought to be, applied to the revision of our laws. and not only does the house of lords do its work imperfectly, but often, at least, it does it timidly. being only a section of the nation, it is afraid of the nation. having been used for years and years, on the greatest matters to act contrary to its own judgment, it hardly knows when to act on that judgment. the depressing languor with which it damps an earnest young peer is at times ridiculous. "when the corn laws are gone, and the rotten boroughs, why tease about clause ix. in the bill to regulate cotton factories?" is the latent thought of many peers. a word from the leaders, from "the duke," or lord derby, or lord lyndhurst, will rouse on any matters the sleeping energies; but most lords are feeble and forlorn. these grave defects would have been at once lessened, and in the course of years nearly effaced, if the house of lords had not resisted the proposal of lord palmerston's first government to create peers for life. the expedient was almost perfect. the difficulty of reforming an old institution like the house of lords is necessarily great; its possibility rests on continuous caste and ancient deference. and if you begin to agitate about it, to bawl at meetings about it, that deference is gone, its particular charm lost, its reserved sanctity gone. but, by an odd fatality, there was in the recesses of the constitution an old prerogative which would have rendered agitation needless--which would have effected, without agitation, all that agitation could have effected. lord palmerston was--now that he is dead, and his memory can be calmly viewed--as firm a friend to an aristocracy, as thorough an aristocrat, as any in england; yet he proposed to use that power. if the house of lords had still been under the rule of the duke of wellington, perhaps they would have acquiesced. the duke would not indeed have reflected on all the considerations which a philosophic statesman would have set out before him; but he would have been brought right by one of his peculiarities. he disliked, above all things, to oppose the crown. at a great crisis, at the crisis of the corn laws, what he considered was not what other people were thinking of, the economical issue under discussion, the welfare of the country hanging in the balance, but the queen's ease. he thought the crown so superior a part in the constitution, that, even on vital occasions, he looked solely--or said he looked solely--to the momentary comfort of the present sovereign. he never was comfortable in opposing a conspicuous act of the crown. it is very likely that, if the duke had still been the president of the house of lords, they would have permitted the crown to prevail in its well-chosen scheme. but the duke was dead, and his authority--or some of it--had fallen to a very different person. lord lyndhurst had many great qualities: he had a splendid intellect--as great a faculty of finding truth as any one in his generation; but he had no love of truth. with this great faculty of finding truth, he was a believer in error--in what his own party now admit to be error--all his life through. he could have found the truth as a statesman just as he found it when a judge; but he never did find it. he never looked for it. he was a great partisan, and he applied a capacity of argument, and a faculty of intellectual argument rarely equalled, to support the tenets of his party. the proposal to create life peers was proposed by the antagonistic party--was at the moment likely to injure his own party. to him this was a great opportunity. the speech he delivered on that occasion lives in the memory of those who heard it. his eyes did not at that time let him read, so he repeated by memory, and quite accurately, all the black-letter authorities, bearing on the question. so great an intellectual effort has rarely been seen in an english assembly. but the result was deplorable. not by means of his black-letter authorities, but by means of his recognised authority and his vivid impression, he induced the house of lords to reject the proposition of the government. lord lyndhurst said the crown could not now create life peers, and so there are no life peers. the house of lords rejected the inestimable, the unprecedented opportunity of being tacitly reformed. such a chance does not come twice. the life peers who would have been then introduced would have been among the first men in the country. lord macaulay was to have been among the first; lord wensleydale--the most learned and not the least logical of our lawyers--to be the very first. thirty or forty such men, added judiciously and sparingly as years went on, would have given to the house of lords the very element which, as a criticising chamber, it needs so much. it would have given it critics. the most accomplished men in each department might then, without irrelevant considerations of family and of fortune, have been added to the chamber of review. the very element which was wanted to the house of lords was, as it were, by a constitutional providence, offered to the house of lords, and they refused it. by what species of effort that error can be repaired i cannot tell; but, unless it is repaired, the intellectual capacity can never be what it would have been, will never be what it ought to be, will never be sufficient for its work. another reform ought to have accompanied the creation of life peers. proxies ought to have been abolished. some time or other the slack attendance of the house of lords will destroy the house of lords. there are occasions in which appearances are realities, and this is one of them. the house of lords on most days looks so unlike what it ought to be, that most people will not believe it is what it ought to be. the attendance of considerate peers will, for obvious reasons, be larger when it can no longer be overpowered by the non-attendance, by the commissioned votes of inconsiderate peers. the abolition of proxies would have made the house of lords a real house; the addition of life peers would have made it a good house. the greater of these changes would have most materially aided the house of lords in the performance of its subsidiary functions. it always perhaps happens in a great nation, that certain bodies of sensible men posted prominently in its constitution, acquire functions, and usefully exercise functions, which at the outset, no one expected from them, and which do not identify themselves with their original design. this has happened to the house of lords especially. the most obvious instance is the judicial function. this is a function which no theorist would assign to a second chamber in a new constitution, and which is matter of accident in ours. gradually, indeed, the unfitness of the second chamber for judicial functions has made itself felt. under our present arrangements this function is not entrusted to the house of lords, but to a committee of the house of lords. on one occasion only, the trial of o'connell, the whole house, or some few in the whole house, wished to vote, and they were told they could not, or they would destroy the judicial prerogative. no one, indeed, would venture really to place the judicial function in the chance majorities of a fluctuating assembly: it is so by a sleepy theory; it is not so in living fact. as a legal question, too, it is a matter of grave doubt whether there ought to be two supreme courts in this country--the judicial committee of the privy council, and (what is in fact though not in name) the judicial committee of the house of lords. up to a very recent time, one committee might decide that a man was sane as to money, and the other committee might decide that he was insane as to land. this absurdity has been cured; but the error from which it arose has not been cured--the error of having two supreme courts, to both of which as time goes on, the same question is sure often enough to be submitted, and each of which is sure every now and then to decide it differently. i do not reckon the judicial function of the house of lords as one of its true subsidiary functions, first because it does not in fact exercise it, next because i wish to see it in appearance deprived of it. the supreme court of the english people ought to be a great conspicuous tribunal, ought to rule all other courts, ought to have no competitor, ought to bring our law into unity, ought not to be hidden beneath the robes of a legislative assembly. the real subsidiary functions of the house of lords are, unlike its judicial functions, very analogous to its substantial nature. the first is the faculty of criticising the executive. an assembly in which the mass of the members have nothing to lose, where most have nothing to gain, where every one has a social position firmly fixed, where no one has a constituency, where hardly any one cares for the minister of the day, is the very assembly in which to look for, from which to expect, independent criticism. and in matter of fact we find it. the criticism of the acts of late administrations by lord grey has been admirable. but such criticism, to have its full value, should be many-sided. every man of great ability puts his own mark on his own criticism; it will be full of thought and feeling, but then it is of idiosyncratic thought and feeling. we want many critics of ability and knowledge in the upper house--not equal to lord grey, for they would be hard to find--but like lord grey. they should resemble him in impartiality; they should resemble him in clearness; they should most of all resemble him in taking a supplemental view of a subject. there is an actor's view of a subject, which (i speak of mature and discussed action--of cabinet action) is nearly sure to include everything old and new--everything ascertained and determinate. but there is also a bystander's view which is likely to omit some one or more of these old and certain elements, but also to contain some new or distant matter, which the absorbed and occupied actor could not see. there ought to be many life peers in our secondary chamber capable of giving us this higher criticism. i am afraid we shall not soon see them, but as a first step we should learn to wish for them. the second subsidiary action of the house of lords is even more important. taking the house of commons, not after possible but most unlikely improvements, but in matter of fact and as it stands, it is overwhelmed with work. the task of managing it falls upon the cabinet, and that task is very hard. every member of the cabinet in the commons has to "attend the house"; to contribute by his votes, if not by his voice, to the management of the house. even in so small a matter as the education department, mr. lowe, a consummate observer, spoke of the desirability of finding a chief "not exposed to the prodigious labour of attending the house of commons". it is all but necessary that certain members of the cabinet should be exempt from its toil, and untouched by its excitement. but it is also necessary that they should have the power of explaining their views to the nation; of being heard as other people are heard. there are various plans for so doing, which i may discuss a little in speaking of the house of commons. but so much is evident: the house of lords, for its own members, attains this object; it gives them a voice, it gives them what no competing plan does give them--position. the leisured members of the cabinet speak in the lords with authority and power. they are not administrators with a right to speech--clerks (as is sometimes suggested) brought down to lecture a house, but not to vote in it; but they are the equals of those they speak to; they speak as they like, and reply as they choose; they address the house, not with the "bated breath" of subordinates, but with the force and dignity of sure rank. life peers would enable us to use this faculty of our constitution more freely and more variously. it would give us a larger command of able leisure; it would improve the lords as a political pulpit, for it would enlarge the list of its select preachers. the danger of the house of commons is, perhaps, that it will be reformed too rashly; the danger of the house of lords certainly is, that it may never be reformed. nobody asks that it should be so; it is quite safe against rough destruction, but it is not safe against inward decay. it may lose its veto as the crown has lost its veto. if most of its members neglect their duties, if all its members continue to be of one class, and that not quite the best; if its doors are shut against genius that cannot found a family, and ability which has not pounds a year, its power will be less year by year, and at last be gone, as so much kingly power is gone--no one knows how. its danger is not in assassination, but atrophy; not abolition, but decline. no. v. the house of commons. [footnote: i reprint this chapter substantially as it was first written. it is too soon, as i have explained in the introduction, to say what changes the late reform act will make in the house of commons.] the dignified aspect of the house of commons is altogether secondary to its efficient use. it is dignified: in a government in which the most prominent parts are good because they are very stately, any prominent part, to be good at all, must be somewhat stately. the human imagination exacts keeping in government as much as in art; it will not be at all influenced by institutions which do not match with those by which it is principally influenced. the house of commons needs to be impressive, and impressive it is: but its use resides not in its appearance, but in its reality. its office is not to win power by awing mankind, but to use power in governing mankind. the main function of the house of commons is one which we know quite well, though our common constitutional speech does not recognise it. the house of commons is an electoral chamber; it is the assembly which chooses our president. washington and his fellow-politicians contrived an electoral college, to be composed (as was hoped) of the wisest people in the nation, which, after due deliberation, was to choose for president the wisest man in the nation. but that college is a sham; it has no independence and no life. no one knows, or cares to know, who its members are. they never discuss, and never deliberate. they were chosen to vote that mr. lincoln be president, or that mr. breckenridge be president; they do so vote, and they go home. but our house of commons is a real choosing body; it elects the people it likes. and it dismisses whom it likes too. no matter that a few months since it was chosen to support lord aberdeen or lord palmerston; upon a sudden occasion it ousts the statesman to whom it at first adhered, and selects an opposite statesman whom it at first rejected. doubtless in such cases there is a tacit reference to probable public opinion; but certainly also there is much free will in the judgment of the commons. the house only goes where it thinks in the end the nation will follow; but it takes its chance of the nation following or not following; it assumes the initiative, and acts upon its discretion or its caprice. when the american nation has chosen its president, its virtue goes out of it, and out of the transmissive college through which it chooses. but because the house of commons has the power of dismissal in addition to the power of election, its relations to the premier are incessant. they guide him and he leads them. he is to them what they are to the nation. he only goes where he believes they will go after him. but he has to take the lead; he must choose his direction, and begin the journey. nor must he flinch. a good horse likes to feel the rider's bit; and a great deliberative assembly likes to feel that it is under worthy guidance. a minister who succumbs to the house,--who ostentatiously seeks its pleasure,--who does not try to regulate it,--who will not boldly point out plain errors to it, seldom thrives. the great leaders of parliament have varied much, but they have all had a certain firmness. a great assembly is as soon spoiled by over-indulgence as a little child. the whole life of english politics is the action and reaction between the ministry and the parliament. the appointees strive to guide, and the appointers surge under the guidance. the elective is now the most important function of the house of commons. it is most desirable to insist, and be tedious, on this, because our tradition ignores it. at the end of half the sessions of parliament, you will read in the newspapers, and you will hear even from those who have looked close at the matter and should know better, "parliament has done nothing this session. some things were promised in the queen's speech, but they were only little things; and most of them have not passed." lord lyndhurst used for years to recount the small outcomings of legislative achievement; and yet those were the days of the first whig governments, who had more to do in legislation, and did more, than any government. the true answer to such harangues as lord lyndhurst's by a minister should have been in the first person. he should have said firmly, "parliament has maintained me, and that was its greatest duty; parliament has carried on what, in the language of traditional respect, we call the queen's government; it has maintained what wisely or unwisely it deemed the best executive of the english nation". the second function of the house of commons is what i may call an expressive function. it is its office to express the mind of the english people on all matters which come before it. whether it does so well or ill i shall discuss presently. the third function of parliament is what i may call--preserving a sort of technicality even in familiar matters for the sake of distinctness--the teaching function. a great and open council of considerable men cannot be placed in the middle of a society without altering that society. it ought to alter it for the better. it ought to teach the nation what it does not know. how far the house of commons can so teach, and how far it does so teach, are matters for subsequent discussion. fourthly, the house of commons has what may be called an informing function--a function which though in its present form quite modern is singularly analogous to a mediaeval function. in old times one office of the house of commons was to inform the sovereign what was wrong. it laid before the crown the grievances and complaints of particular interests. since the publication of the parliamentary debates a corresponding office of parliament is to lay these same grievances, these same complaints, before the nation, which is the present sovereign. the nation needs it quite as much as the king ever needed it. a free people is indeed mostly fair, liberty practises men in a give-and-take, which is the rough essence of justice. the english people, possibly even above other free nations, is fair. but a free nation rarely can be--and the english nation is not--quick of apprehension. it only comprehends what is familiar to it--what comes into its own experience, what squares with its own thoughts. "i never heard of such a thing in my life," the middle-class englishman says, and he thinks he so refutes an argument. the common disputant cannot say in reply that his experience is but limited, and that the assertion may be true, though he had never met with anything at all like it. but a great debate in parliament does bring home something of this feeling. any notion, any creed, any feeling, any grievance which can get a decent number of english members to stand up for it, is felt by almost all englishmen to be perhaps a false and pernicious opinion, but at any rate possible--an opinion within the intellectual sphere, an opinion to be reckoned with. and it is an immense achievement. practical diplomatists say that a free government is harder to deal with than a despotic government; you may be able to get the despot to hear the other side; his ministers, men of trained intelligence, will be sure to know what makes against them; and they may tell him. but a free nation never hears any side save its own. the newspapers only repeat the side their purchasers like: the favourable arguments are set out, elaborated, illustrated; the adverse arguments maimed, misstated, confused. the worst judge, they say, is a deaf judge; the most dull government is a free government on matters its ruling classes will not hear. i am disposed to reckon it as the second function of parliament in point of importance, that to some extent it makes us hear what otherwise we should not. lastly, there is the function of legislation, of which of course it would be preposterous to deny the great importance, and which i only deny to be as important as the executive management of the whole state, or the political education given by parliament to the whole nation. there are, i allow, seasons when legislation is more important than either of these. the nation may be misfitted with its laws, and need to change them: some particular corn law may hurt all industry, and it may be worth a thousand administrative blunders to get rid of it. but generally the laws of a nation suit its life; special adaptations of them are but subordinate; the administration and conduct of that life is the matter which presses most. nevertheless, the statute-book of every great nation yearly contains many important new laws, and the english statute-book does so above any. an immense mass, indeed, of the legislation is not, in the proper language of jurisprudence, legislation at all. a law is a general command applicable to many cases. the "special acts" which crowd the statute-book and weary parliamentary committees are applicable to one case only. they do not lay down rules according to which railways shall be made, they enact that such a railway shall be made from this place to that place, and they have no bearing upon any other transaction. but after every deduction and abatement, the annual legislation of parliament is a result of singular importance; were it not so, it could not be, as it often is considered, the sole result of its annual assembling. some persons will perhaps think that i ought to enumerate a sixth function of the house of commons--a financial function. but i do not consider that, upon broad principle, and omitting legal technicalities, the house of commons has any special function with regard to financial different from its functions with respect to other legislation. it is to rule in both, and to rule in both through the cabinet. financial legislation is of necessity a yearly recurring legislation; but frequency of occurrence does not indicate a diversity of nature or compel an antagonism of treatment. in truth, the principal peculiarity of the house of commons in financial affairs is nowadays not a special privilege, but an exceptional disability. on common subjects any member can propose anything, but not on money--the minister only can propose to tax the people. this principle is commonly involved in mediaeval metaphysics as to the prerogative of the crown, but it is as useful in the nineteenth century as in the fourteenth, and rests on as sure a principle. the house of commons--now that it is the true sovereign, and appoints the real executive--has long ceased to be the checking, sparing, economical body it once was. it now is more apt to spend money than the minister of the day. i have heard a very experienced financier say, "if you want to raise a certain cheer in the house of commons make a general panegyric on economy; if you want to invite a sure defeat, propose a particular saving". the process is simple. every expenditure of public money has some apparent public object; those who wish to spend the money expatiate on that object; they say, "what is , pounds to this great country? is this a time for cheese-paring objection? our industry was never so productive; our resources never so immense. what is , pounds in comparison with this great national interest?" the members who are for the expenditure always come down; perhaps a constituent or a friend who will profit by the outlay, or is keen on the object, has asked them to attend; at any rate, there is a popular vote to be given, on which the newspapers--always philanthropic, and sometimes talked over--will be sure to make enconiums. the members against the expenditure rarely come down of themselves; why should they become unpopular without reason? the object seems decent; many of its advocates are certainly sincere: a hostile vote will make enemies, and be censured by the journals. if there were not some check, the "people's house" would soon outrun the people's money. that check is the responsibility of the cabinet for the national finance. if any one could propose a tax, they might let the house spend it as it would, and wash their hands of the matter; but now, for whatever expenditure is sanctioned--even when it is sanctioned against the ministry's wish--the ministry must find the money. accordingly, they have the strongest motive to oppose extra outlay. they will have to pay the bill for it; they will have to impose taxation, which is always disagreeable, or suggest loans, which, under ordinary circumstances, are shameful. the ministry is (so to speak) the bread-winner of the political family, and has to meet the cost of philanthropy and glory, just as the head of a family has to pay for the charities of his wife and the toilette of his daughters. in truth, when a cabinet is made the sole executive, it follows it must have the sole financial charge, for all action costs money, all policy depends on money, and it is in adjusting the relative goodness of action and policies that the executive is employed. from a consideration of these functions, it follows that we are ruled by the house of commons; we are, indeed, so used to be so ruled, that it does not seem to be at all strange. but of all odd forms of government, the oddest really is government by a public meeting. here are persons, collected from all parts of england, different in nature, different in interests, different in look, and language. if we think what an empire the english is, how various are its components, how incessant its concerns, how immersed in history its policy; if we think what a vast information, what a nice discretion, what a consistent will ought to mark the rulers of that empire, we shall be surprised when we see them. we see a changing body of miscellaneous persons, sometimes few, sometimes many, never the same for an hour; sometimes excited, but mostly dull and half weary--impatient of eloquence, catching at any joke as an alleviation. these are the persons who rule the british empire--who rule england, who rule scotland, who rule ireland, who rule a great deal of asia, who rule a great deal of polynesia, who rule a great deal of america, and scattered fragments everywhere. paley said many shrewd things, but he never said a better thing than that it was much harder to make men see a difficulty than comprehend the explanation of it. the key to the difficulties of most discussed and unsettled questions is commonly in their undiscussed parts: they are like the background of a picture, which looks obvious, easy, just what any one might have painted, but which, in fact, sets the figures in their right position, chastens them, and makes them what they are. nobody will understand parliament government who fancies it an easy thing, a natural thing, a thing not needing explanation. you have not a perception of the first elements in this matter till you know that government by a club is a standing wonder. there has been a capital illustration lately how helpless many english gentlemen are when called together on a sudden. the government, rightly or wrongly, thought fit to entrust the quarter-sessions of each county with the duty of combating its cattle-plague; but the scene in most "shire halls" was unsatisfactory. there was the greatest difficulty in getting, not only a right decision, but any decision, i saw one myself which went thus. the chairman proposed a very complex resolution, in which there was much which every one liked, and much which every one disliked, though, of course, the favourite parts of some were the objectionable parts to others. this resolution got, so to say, wedged in the meeting; everybody suggested amendments; one amendment was carried which none were satisfied with, and so the matter stood over. it is a saying in england, "a big meeting never does anything"; and yet we are governed by the house of commons--by "a big meeting". it may be said that the house of commons does not rule, it only elects the rulers. but there must be something special about it to enable it to do that. suppose the cabinet were elected by a london club, what confusion there would be, what writing and answering! "will you speak to so-and-so, and ask him to vote for my man?" would be heard on every side. how the wife of a. and the wife of b. would plot to confound the wife of c. whether the club elected under the dignified shadow of a queen, or without the shadow, would hardly matter at all; if the substantial choice was in them, the confusion and intrigue would be there too. i propose to begin this paper by asking, not why the house of commons governs well? but the fundamental--almost unasked question--how the house of commons comes to be able to govern at all? the house of commons can do work which the quarter-sessions or clubs cannot do, because it is an organised body, while quarter-sessions and clubs are unorganised. two of the greatest orators in england--lord brougham and lord bolingbroke--spent much eloquence in attacking party government. bolingbroke probably knew what he was doing; he was a consistent opponent of the power of the commons; he wished to attack them in a vital part. but lord brougham does not know; he proposes to amend parliamentary government by striking out the very elements which make parliamentary government possible. at present the majority of parliament obey certain leaders; what those leaders propose they support, what those leaders reject they reject. an old secretary of the treasury used to say, "this is a bad case, an indefensible case. we must apply our majority to this question." that secretary lived fifty years ago, before the reform bill, when majorities were very blind, and very "applicable". nowadays, the power of leaders over their followers is strictly and wisely limited: they can take their followers but a little way, and that only in certain directions. yet still there are leaders and followers. on the conservative side of the house there are vestiges of the despotic leadership even now. a cynical politician is said to have watched the long row of county members, so fresh and respectable-looking, and muttered, "by jove, they are the finest brute votes in europe!" but all satire apart, the principle of parliament is obedience to leaders. change your leader if you will, take another if you will, but obey no. while you serve no. , and obey no. when you have gone over to no. . the penalty of not doing so, is the penalty of impotence. it is not that you will not be able to do any good, but you will not be able to do anything at all. if everybody does what he thinks right, there will be amendments to every motion, and none of them will be carried or the motion either. the moment, indeed, that we distinctly conceive that the house of commons is mainly and above all things an elective assembly, we at once perceive that party is of its essence. there never was an election without a party. you cannot get a child into an asylum without a combination. at such places you may see "vote for orphan a." upon a placard, and "vote for orphan b. (also an idiot!!!)" upon a banner, and the party of each is busy about its placard and banner. what is true at such minor and momentary elections must be much more true in a great and constant election of rulers. the house of commons lives in a state of perpetual potential choice; at any moment it can choose a ruler and dismiss a ruler. and therefore party is inherent in it, is bone of its bone, and breath of its breath. secondly, though the leaders of party no longer have the vast patronage of the last century with which to bribe, they can coerce by a threat far more potent than any allurement--they can dissolve. this is the secret which keeps parties together. mr. cobden most justly said: "he had never been able to discover what was the proper moment, according to members of parliament, for a dissolution. he had heard them say they were ready to vote for everything else, but he had never heard them say they were ready to vote for that." efficiency in an assembly requires a solid mass of steady votes; and these are collected by a deferential attachment to particular men, or by a belief in the principles those men represent, and they are maintained by fear of those men--by the fear that if you vote against them, you may yourself soon not have a vote at all. thirdly, it may seem odd to say so, just after inculcating that party organisation is the vital principle of representative government, but that organisation is permanently efficient, because it is not composed of warm partisans. the body is eager, but the atoms are cool. if it were otherwise, parliamentary government would become the worst of governments--a sectarian government. the party in power would go all the lengths their orators proposed--all that their formulae enjoined, as far as they had ever said they would go. but the partisans of the english parliament are not of such a temper. they are whigs, or radicals, or tories, but they are much else too. they are common englishmen, and, as father newman complains, "hard to be worked up to the dogmatic level". they are not eager to press the tenets of their party to impossible conclusions. on the contrary, the way to lead them--the best and acknowledged way--is to affect a studied and illogical moderation. you may hear men say, "without committing myself to the tenet that + make , though i am free to admit that the honourable member for bradford has advanced very grave arguments in behalf of it, i think i may, with the permission of the committee, assume that + do not make , which will be a sufficient basis for the important propositions which i shall venture to submit on the present occasion." this language is very suitable to the greater part of the house of commons. most men of business love a sort of twilight. they have lived all their lives in an atmosphere of probabilities and of doubt, where nothing is very clear, where there are some chances for many events, where there is much to be said for several courses, where nevertheless one course must be determinedly chosen and fixedly adhered to. they like to hear arguments suited to this intellectual haze. so far from caution or hesitation in the statement of the argument striking them as an indication of imbecility, it seems to them a sign of practicality. they got rich themselves by transactions of which they could not have stated the argumentative ground--and all they ask for is a distinct though moderate conclusion, that they can repeat when asked; something which they feel not to be abstract argument, but abstract argument diluted and dissolved in real life. "there seem to me," an impatient young man once said, "to be no stay in peel's arguments." and that was why sir robert peel was the best leader of the commons in our time; we like to have the rigidity taken out of an argument, and the substance left. nor indeed, under our system of government, are the leaders themselves of the house of commons, for the most part, eager to carry party conclusions too far. they are in contact with reality. an opposition, on coming into power, is often like a speculative merchant whose bills become due. ministers have to make good their promises, and they find a difficulty in so doing. they have said the state of things is so and so, and if you give us the power we will do thus and thus. but when they come to handle the official documents, to converse with the permanent under-secretary--familiar with disagreeable facts, and though in manner most respectful, yet most imperturbable in opinion--very soon doubts intervene. of course, something must be done; the speculative merchant cannot forget his bills; the late opposition cannot, in office, forget those sentences which terrible admirers in the country still quote. but just as the merchant asks his debtor, "could you not take a bill at four months?" so the new minister says to the permanent under-secretary, "could you not suggest a middle course? i am of course not bound by mere sentences used in debate; i have never been accused of letting a false ambition of consistency warp my conduct; but," etc., etc. and the end always is that a middle course is devised which looks as much as possible like what was suggested in opposition, but which is as much as possible what patent facts--facts which seem to live in the office, so teasing and unceasing are they--prove ought to be done. of all modes of enforcing moderation on a party, the best is to contrive that the members of that party shall be intrinsically moderate, careful, and almost shrinking men; and the next best to contrive that the leaders of the party, who have protested most in its behalf, shall be placed in the closest contact with the actual world. our english system contains both contrivances; it makes party government permanent and possible in the sole way in which it can be so, by making it mild. but these expedients, though they sufficiently remove the defects which make a common club or quarter-sessions impotent, would not enable the house of commons to govern england. a representative public meeting is subject to a defect over and above those of other public meetings. it may not be independent. the constituencies may not let it alone. but if they do not, all the checks which have been enumerated upon the evils of a party organisation would be futile. the feeling of a constituency is the feeling of a dominant party, and that feeling is elicited, stimulated, sometimes even manufactured by the local political agent. such an opinion could not be moderate; could not be subject to effectual discussion; could not be in close contact with pressing facts; could not be framed under a chastening sense of near responsibility; could not be formed as those form their opinions who have to act upon them. constituency government is the precise opposite of parliamentary government. it is the government of immoderate persons far from the scene of action, instead of the government of moderate persons close to the scene of action; it is the judgment of persons judging in the last resort and without a penalty, in lieu of persons judging in fear of a dissolution, and ever conscious that they are subject to an appeal. most persons would admit these conditions of parliamentary government when they read them, but two at least of the most prominent ideas in the public mind are inconsistent with them. the scheme to which the arguments of our demagogues distinctly tend, and the scheme to which the predilections of some most eminent philosophers cleave, are both so. they would not only make parliamentary government work ill, but they would prevent its working at all; they would not render it bad, for they would make it impossible. the first of these is the ultra-democratic theory. this theory demands that every man of twenty-one years of age (if not every woman too) should have an equal vote in electing parliament. suppose that last year there were twelve million adult males in england. upon this theory each man is to have one twelve-millionth share in electing a parliament; the rich and wise are not to have, by explicit law, more votes than the poor and stupid; nor are any latent contrivances to give them an influence equivalent to more votes. the machinery for carrying out such a plan is very easy. at each census the country ought to be divided into electoral districts, in each of which the number of adult males should be the same; and these districts ought to be the only constituencies, and elect the whole parliament. but if the above prerequisites are needful for parliamentary government, that parliament would not work. such a parliament could not be composed of moderate men. the electoral districts would be, some of them, in purely agricultural places, and in these the parson and the squire would have almost unlimited power. they would be able to drive or send to the poll an entire labouring population. these districts would return an unmixed squirearchy. the scattered small towns which now send so many members to parliament, would be lost in the clownish mass; their votes would send to parliament no distinct members. the agricultural part of england would choose its representatives from quarter-sessions exclusively. on the other hand a large part of the constituencies would be town districts, and these would send up persons representing the beliefs or unbeliefs of the lowest classes in their towns. they would, perhaps, be divided between the genuine representatives of the artisans--not possibly of the best of the artisans, who are a select and intellectual class, but of the common order of workpeople--and the merely pretended members for that class whom i may call the members for the public-houses. in all big towns in which there is electioneering these houses are the centres of illicit corruption and illicit management. there are pretty good records of what that corruption and management are, but there is no need to describe them here. everybody will understand what sort of things i mean, and the kind of unprincipled members that are returned by them. our new parliament, therefore, would be made up of two sorts of representatives from the town lowest class, and one sort of representatives from the agricultural lowest class. the genuine representatives of the country would be men of one marked sort, and the genuine representatives for the county men of another marked sort, but very opposite: one would have the prejudices of town artisans, and the other the prejudices of county magistrates. each class would speak a language of its own; each would be unintelligible to the other; and the only thriving class would be the immoral representatives, who were chosen by corrupt machination, and who would probably get a good profit on the capital they laid out in that corruption. if it be true that a parliamentary government is possible only when the overwhelming majority of the representatives are men essentially moderate, of no marked varieties, free from class prejudices, this ultra-democratic parliament could not maintain that government, for its members would be remarkable for two sorts of moral violence and one sort of immoral. i do not for a moment rank the scheme of mr. hare with the scheme of the ultra-democrats. one can hardly help having a feeling of romance about it. the world seems growing young when grave old lawyers and mature philosophers propose a scheme promising so much. it is from these classes that young men suffer commonly the chilling demonstration that their fine plans are opposed to rooted obstacles, that they are repetitions of other plans which failed long ago, and that we must be content with the very moderate results of tried machinery. but mr. hare and mr. mill offer as the effect of their new scheme results as large and improvements as interesting as a young enthusiast ever promised to himself in his happiest mood. i do not give any weight to the supposed impracticability of mr. hare's scheme because it is new. of course it cannot be put in practice till it is old. a great change of this sort happily cannot be sudden; a free people cannot be confused by new institutions which they do not understand, for they will not adopt them till they understand them. but if mr. hare's plan would accomplish what its friends say, or half what they say, it would be worth working for, if it were not adopted till the year . we ought incessantly to popularise the principle by writing; and, what is better than writing, small preliminary bits of experiment. there is so much that is wearisome and detestable in all other election machineries, that i well understand, and wish i could share, the sense of relief with which the believers in this scheme throw aside all their trammels, and look to an almost ideal future when this captivating plan is carried. mr. hare's scheme cannot be satisfactorily discussed in the elaborate form in which he presents it. no common person readily apprehends all the details in which, with loving care, he has embodied it. he was so anxious to prove what could be done, that he has confused most people as to what it is. i have heard a man say, "he never could remember it two days running". but the difficulty which i feel is fundamental, and wholly independent of detail. there are two modes in which constituencies may be made. first, the law may make them, as in england and almost everywhere: the law may say such and such qualifications shall give a vote for constituency x; those who have that qualification shall be constituency x. these are what we may call compulsory constituencies, and we know all about them. or, secondly, the law may leave the electors themselves to make them. the law may say all the adult males of a country shall vote, or those males who can read and write, or those who have pounds a year, or any persons any way defined, and then leave those voters to group themselves as they like. suppose there were , voters to elect the house of commons; it is possible for the legislature to say, "we do not care how you combine. on a given day let each set of persons give notice in what group they mean to vote; if every voter gives notice, and every one looks to make the most of his vote, each group will have just . but the law shall not make this necessary--it shall take the most numerous groups, no matter whether they have , or , or , or votes--the most numerous groups, whatever their number may be; and these shall be the constituencies of the nation." these are voluntary constituencies, if i may so call them; the simplest kind of voluntary constituencies. mr. hare proposes a far more complex kind; but to show the merits and demerits of the voluntary principle the simplest form is much the best. the temptation to that principle is very plain. under the compulsory form of constituency the votes of the minorities are thrown away. in the city of london, now, there are many tories, but all the members are whigs; every london tory, therefore, is by law and principle misrepresented: his city sends to parliament not the member whom he wished to have, but the member he wished not to have. but upon the voluntary system the london tories, who are far more than in number, may combine; they may make a constituency, and return a member. in many existing constituencies the disfranchisement of minorities is hopeless and chronic. i have myself had a vote for an agricultural county for twenty years, and i am a liberal; but two tories have always been returned, and all my life will be returned. as matters now stand, my vote is of no use. but if i could combine with other liberals in that and other conservative counties, we might choose a liberal member. again, this plan gets rid of all our difficulties as to the size of constituencies. it is said to be unreasonable that liverpool should return only the same number of members as king's lynn or lyme regis; but upon the voluntary plan, liverpool could come down to king's lynn. the liberal minority in king's lynn could communicate with the liberal minority in liverpool, and make up ; and so everywhere. the numbers of popular places would gain what is called their legitimate advantage; they would, when constituencies are voluntarily made, be able to make, and be willing to make the greatest number of constituencies. again, the admirers of a great man could make a worthy constituency for him. as it is, mr. mill was returned by the electors of westminster; and they have never, since they had members, done themselves so great an honour. but what did the electors of westminster know of mr. mill? what fraction of his mind could be imagined by any percentage of their minds? a great deal of his genius most of them would not like. they meant to do homage to mental ability, but it was the worship of an unknown god--if ever there was such a thing in this world. but upon the voluntary plan, one thousand out of the many thousand students of mr. mill's book could have made an appreciating constituency for him. i could reckon other advantages, but i have to object to the scheme, not to recommend it. what are the counterweights which overpower these merits? i reply that the voluntary composition of constituencies appears to me inconsistent with the necessary prerequisites of parliamentary government as they have been just laid down. under the voluntary system, the crisis of politics is not the election of the member, but the making the constituency. president-making is already a trade in america, and constituency-making would, under the voluntary plan, be a trade here. every party would have a numerical problem to solve. the leaders would say, "we have , votes, we must take care to have members"; and the only way to obtain them is to organise. a man who wanted to compose part of a liberal constituency must not himself hunt for other liberals; if he did, after writing letters, he would probably find he was making part of a constituency of , all whose votes would be thrown away, the constituency being too small to be reckoned. such a liberal must write to the great registration association in parliament street; he must communicate with its able managers, and they would soon use his vote for him. they would say, "sir, you are late; mr. gladstone, sir, is full. he got his last year. most of the gentlemen you read of in the papers are full. as soon as a gentleman makes a nice speech, we get a heap of letters to say, 'make us into that gentleman's constituency'. but we cannot do that. here is our list. if you do not want to throw your vote away, you must be guided by us: here are three very satisfactory gentlemen (and one is an honourable): you may vote for either of these, and we will write your name down; but if you go voting wildly, you'll be thrown out altogether." the evident result of this organisation would be the return of party men mainly. the member-makers would look, not for independence, but for subservience--and they could hardly be blamed for so doing. they are agents for the liberal party; and, as such, they should be guided by what they take to be the wishes of their principal. the mass of the liberal party wishes measure a, measure b, measure c. the managers of the registration--the skilled manipulators--are busy men. they would say, "sir, here is our card; if you want to get into parliament on our side, you must go for that card; it was drawn up by mr. lloyd; he used to be engaged on railways, but since they passed this new voting plan, we get him to attend to us; it is a sound card; stick to that and you will be right". upon this (in theory) voluntary plan, you would get together a set of members bound hard and fast with party bands and fetters, infinitely tighter than any members now. whoever hopes anything from desultory popular action if matched against systematised popular action, should consider the way in which the american president is chosen. the plan was that the citizens at large should vote for the statesman they liked best. but no one does anything of the sort. they vote for the ticket made by "the caucus," and the caucus is a sort of representative meeting which sits voting and voting till they have cut out all the known men against whom much is to be said, and agreed on some unknown man against whom there is nothing known, and therefore nothing to be alleged. caucuses, or their equivalent, would be far worse here in constituency-making than there in president-making, because on great occasions the american nation can fix on some one great man whom it knows, but the english nation could not fix on great men and choose them. it does not know so many, and if it did, would go wrong in the difficulties of the manipulation. but though a common voter could only be ranged in an effectual constituency, and a common candidate only reach a constituency by obeying the orders of the political election-contrivers upon his side, certain voters and certain members would be quite independent of both. there are organisations in this country which would soon make a set of constituencies for themselves. every chapel would be an office for vote-transferring before the plan had been known three months. the church would be much slower in learning it and much less handy in using it; but would learn. at present the dissenters are a most energetic and valuable component of the liberal party; but under the voluntary plan they would not be a component--they would be a separate, independent element. we now propose to group boroughs; but then they would combine chapels. there would be a member for the baptist congregation of tavistock, cum totnes, cum, etc., etc. the full force of this cannot be appreciated except by referring to the former proof that the mass of a parliament ought to be men of moderate sentiments, or they will elect an immoderate ministry, and enact violent laws. but upon the plan suggested, the house would be made up of party politicians selected by a party committee, chained to that committee and pledged to party violence, and of characteristic, and therefore immoderate representatives, for every "ism" in all england. instead of a deliberate assembly of moderate and judicious men, we should have a various compound of all sorts of violence. i may seem to be drawing a caricature, but i have not reached the worst. bad as these members would be, if they were left to themselves--if, in a free parliament, they were confronted with the perils of government, close responsibility might improve them and make them tolerable. but they would not be left to themselves. a voluntary constituency will nearly always be a despotic constituency. even in the best case, where a set of earnest men choose a member to expound their earnestness, they will look after him to see that he does expound it. the members will be like the minister of a dissenting congregation. that congregation is collected by a unity of sentiment in doctrine a, and the preacher is to preach doctrine a; if he does not, he is dismissed. at present the member is free because the constituency is not in earnest; no constituency has an acute, accurate doctrinal creed in politics. the law made the constituencies by geographical divisions; and they are not bound together by close unity of belief. they have vague preferences for particular doctrines; and that is all. but a voluntary constituency would be a church with tenets; it would make its representative the messenger of its mandates, and the delegate of its determinations. as in the case of a dissenting congregation, one great minister sometimes rules it, while ninety-nine ministers in the hundred are ruled by it, so here one noted man would rule his electors, but the electors would rule all the others. thus, the members for a good voluntary constituency would be hopelessly enslaved, because of its goodness; but the members for a bad voluntary constituency would be yet more enslaved because of its badness. the makers of these constituencies would keep the despotism in their own hands. in america there is a division of politicians into wire-pullers and blowers; under the voluntary system the member of parliament would be the only momentary mouth-piece--the impotent blower; while the constituency-maker would be the latent wire-puller--the constant autocrat. he would write to gentlemen in parliament, and say, "you were elected upon 'the liberal ticket'; and if you deviate from that ticket you cannot be chosen again". and there would be no appeal for a common-minded man. he is no more likely to make a constituency for himself than a mole is likely to make a planet. it may indeed be said that against a septennial parliament such machinations would be powerless; that a member elected for seven years might defy the remonstrances of an earnest constituency, or the imprecations of the latent manipulators. but after the voluntary composition of constituencies, there would soon be but short-lived parliaments. earnest constituencies would exact frequent elections; they would not like to part with their virtue for a long period; it would anger them to see it used contrary to their wishes, amid circumstances which at the election no one thought of. a seven years' parliament is often chosen in one political period, lasts through a second, and is dissolved in a third. a constituency collected by law and on compulsion endures this change because it has no collective earnestness; it does not mind seeing the power it gave used in a manner that it could not have foreseen. but a self-formed constituency of eager opinions, a missionary constituency, so to speak, would object; it would think it its bounden duty to object; and the crafty manipulators, though they said nothing, in silence would object still more. the two together would enjoin annual elections, and would rule their members unflinchingly. the voluntary plan, therefore, when tried in this easy form is inconsistent with the extrinsic independence as well as with the inherent moderation of a parliament--two of the conditions which, as we have seen, are essential to the bare possibility of parliamentary government. the same objections, as is inevitable, adhere to that principle under its more complicated forms. it is in vain to pile detail on detail when the objection is one of first principle. if the above reasoning be sound, compulsory constituencies are necessary, voluntary constituencies destructive; the optional transferability of votes is not a salutary aid, but a ruinous innovation. i have dwelt upon the proposal of mr. hare and upon the ultra-democratic proposal, not only because of the high intellectual interest of the former and the possible practical interest of the latter, but because they tend to bring into relief two at least of the necessary conditions of parliamentary government. but besides these necessary qualities which are needful before a parliamentary government can work at all, there are some additional prerequisites before it can work well. that a house of commons may work well it must perform, as we saw, five functions well: it must elect a ministry well, legislate well, teach the nation well, express the nation's will well, bring matters to the nation's attention well. the discussion has a difficulty of its own. what is meant by "well"? who is to judge? is it to be some panel of philosophers, some fancied posterity, or some other outside authority? i answer, no philosophy, no posterity, no external authority, but the english nation here and now. free government is self-government--a government of the people by the people. the best government of this sort is that which the people think best. an imposed government, a government like that of the english in india, may very possibly be better; it may represent the views of a higher race than the governed race; but it is not therefore a free government. a free government is that which the people subject to it voluntarily choose. in a casual collection of loose people the only possible free government is a democratic government. where no one knows, or cares for, or respects any one else all must rank equal; no one's opinion can be more potent than that of another. but, as has been explained, a deferential nation has a structure of its own. certain persons are by common consent agreed to be wiser than others, and their opinion is, by consent, to rank for much more than its numerical value. we may in these happy nations weigh votes as well as count them, though in less favoured countries we can count only. but in free nations, the votes so weighed or so counted must decide. a perfect free government is one which decides perfectly according to those votes; an imperfect, one which so decides imperfectly; a bad, one which does not so decide at all. public opinion is the test of this polity; the best opinion which with its existing habits of deference, the nation will accept: if the free government goes by that opinion, it is a good government of its species; if it contravenes that opinion, it is a bad one. tried by this rule the house of commons does its appointing business well. it chooses rulers as we wish rulers to be chosen. if it did not, in a speaking and writing age we should soon know. i have heard a great liberal statesman say, "the time was coming when we must advertise for a grievance".[ ] what a good grievance it would be were the ministry appointed and retained by the parliament a ministry detested by the nation. an anti-present-government league would be instantly created, and it would be more instantly powerful and more instantly successful than the anti-corn-law league. [ ] this was said in . it has, indeed, been objected that the choosing business of parliament is done ill, because it does not choose strong governments. and it is certain that when public opinion does not definitely decide upon a marked policy, and when in consequence parties in the parliament are nearly even, individual cupidity and changeability may make parliament change its appointees too often; may induce them never enough to trust any of them; may make it keep all of them under a suspended sentence of coming dismissal. but the experience of lord palmerston's second government proves, i think, that these fears are exaggerated. when the choice of a nation is really fixed on a statesman, parliament will fix upon him too. the parties in the parliament of were as nearly divided as in any probable parliament; a great many liberals did not much like lord palmerston, and they would have gladly co-operated in an attempt to dethrone him. but the same influence acted on parliament within which acted on the nation without. the moderate men of both parties were satisfied that lord palmerston's was the best government, and they therefore preserved it though it was hated by the immoderate on both sides. we have then found by a critical instance that a government supported by what i may call "the common element"--by the like-minded men of unlike parties--will be retained in power, though parties are even, and though, as treasury counting reckons, the majority is imperceptible. if happily, by its intelligence and attractiveness, a cabinet can gain a hold upon the great middle part of parliament, it will continue to exist notwithstanding the hatching of small plots and the machinations of mean factions. on the whole, i think it indisputable that the selecting task of parliament is performed as well as public opinion wishes it to be performed; and if we want to improve that standard, we must first improve the english nation, which imposes that standard. of the substantial part of its legislative task, the same, too, may, i think, be said. the manner of our legislation is indeed detestable, and the machinery for settling that manner odious. a committee of the whole house, dealing, or attempting to deal with the elaborate clauses of a long bill, is a wretched specimen of severe but misplaced labour. it is sure to wedge some clause into the act, such as that which the judge said "seemed to have fallen by itself, perhaps, from heaven, into the mind of the legislature," so little had it to do with anything on either side or around it. at such times government by a public meeting displays its inherent defects, and is little restrained by its necessary checks. but the essence of our legislature may be separated from its accidents. subject to two considerable defects i think parliament passes laws as the nation wishes to have them passed. thirty years ago this was not so. the nation had outgrown its institutions, and was cramped by them. it was a man in the clothes of a boy; every limb wanted more room, and every garment to be fresh made. "d-mn me," said lord eldon in the dialect of his age, "if i had to begin life again i would begin as an agitator." the shrewd old man saw that the best life was that of a miscellaneous objector to the old world, though he loved that world, believed in it, could imagine no other. but he would not say so now. there is no worse trade than agitation at this time. a man can hardly get an audience if he wishes to complain of anything. nowadays, not only does the mind and policy of parliament (subject to the exceptions before named) possess the common sort of moderation essential to the possibility of parliamentary government, but also that exact gradation, that precise species of moderation, most agreeable to the nation at large. not only does the nation endure a parliamentary government, which it would not do if parliament were immoderate, but it likes parliamentary government. a sense of satisfaction permeates the country because most or the country feels it has got the precise thing that suits it. the exceptions are two. first. that parliament leans too much to the opinions of the landed interest. the cattle plague act is a conspicuous instance of this defect. the details of that bill may be good or bad, and its policy wise or foolish. but the manner in which it was hurried through the house savoured of despotism. the cotton trade or the wine trade could not, in their maximum of peril, have obtained such aid in such a manner. the house of commons would hear of no pause and would heed no arguments. the greatest number of them feared for their incomes. the land of england returns many members annually for the counties; these members the constitution gave them. but what is curious is that the landed interest gives no seats to other classes, but takes plenty of seats from other classes. half the boroughs in england are represented by considerable landowners, and when rent is in question, as in the cattle case, they think more of themselves than of those who sent them. in number the landed gentry in the house far surpass any other class. they have, too, a more intimate connection with one another; they were educated at the same schools; know one another's family name from boyhood; form a society; are the same kind of men; marry the same kind of women. the merchants and manufacturers in parliament are a motley race--one educated here, another there, a third not educated at all; some are of the second generation of traders, who consider self-made men intruders upon an hereditary place; others are self-made, and regard the men of inherited wealth, which they did not make and do not augment, as beings of neither mind nor place, inferior to themselves because they have no brains, and inferior to lords because they have no rank. traders have no bond of union, no habits of intercourse; their wives, if they care for society, want to see not the wives of other such men, but "better people," as they say--the wives of men certainly with land, and, if heaven help, with the titles. men who study the structure of parliament, not in abstract books, but in the concrete london world, wonder not that the landed interest is very powerful, but that it is not despotic. i believe it would be despotic if it were clever, or rather if its representatives were so, but it has a fixed device to make them stupid. the counties not only elect landowners, which is natural, and perhaps wise, but also elect only landowners of their own county, which is absurd. there is no free trade in the agricultural mind; each county prohibits the import of able men from other counties. this is why eloquent sceptics--bolingbroke and disraeli--have been so apt to lead the unsceptical tories. they will have people with a great piece of land in a particular spot, and of course these people generally cannot speak, and often cannot think. and so eloquent men who laugh at the party come to lead the party. the landed interest has much more influence than it should have; but it wastes that influence so much that the excess is, except on singular occurrences (like the cattle plague), of secondary moment. it is almost another side of the same matter to say that the structure of parliament gives too little weight to the growing districts of the country and too much to the stationary, in old times the south of england was not only the pleasantest but the greatest part of england. devonshire was a great maritime county when the foundations of our representation were fixed; somersetshire and wiltshire great manufacturing counties. the harsher climate of the northern counties was associated with a ruder, a stern, and a sparser people. the immense preponderance which our parliament gave before , and though pruned and mitigated, still gives to england south of the trent, then corresponded to a real preponderance in wealth and mind. how opposite the present contrast is we all know. and the case gets worse every day. the nature of modern trade is to give to those who have much and take from those who have little. manufacture goes where manufacture is, because there and there alone it finds attendant and auxiliary manufacture. every railway takes trade from the little town to the big town because it enables the customer to buy in the big town. year by year the north (as we may roughly call the new industrial world) gets more important, and the south (as we may call the pleasant remnant of old time) gets less important. it is a grave objection to our existing parliamentary constitution that it gives much power to regions of past greatness, and refuses equal power to regions of present greatness. i think (though it is not a popular notion) that by far the greater part of the cry for parliamentary reform is due to this inequality. the great capitalists, mr. bright and his friends, believe they are sincere in asking for more power for the working man, but, in fact, they very naturally and very properly want more power for themselves. they cannot endure--they ought not to endure--that a rich, able manufacturer should be a less man than a small stupid squire. the notions of political equality which mr. bright puts forward are as old as political speculation, and have been refuted by the first efforts of that speculation. but for all that they are likely to last as long as political society, because they are based upon indelible principles in human nature. edmund burke called the first east indians, "jacobins to a man," because they did not feel their "present importance equal to their real wealth". so long as there is an uneasy class, a class which has not its just power, it will rashly clutch and blindly believe the notion that all men should have the same power. i do not consider the exclusion of the working classes from effectual representation a defect in this aspect of our parliamentary representation. the working classes contribute almost nothing to our corporate public opinion, and therefore, the fact of their want of influence in parliament does not impair the coincidence of parliament with public opinion. they are left out in the representation, and also in the thing represented. nor do i think the number of persons of aristocratic descent in parliament impairs the accordance of parliament with public opinion. no doubt the direct descendants and collateral relatives of noble families supply members to parliament in far greater proportion than is warranted by the number of such families in comparison with the whole nation. but i do not believe that these families have the least corporate character, or any common opinions, different from others of the landed gentry. they have the opinions of the propertied rank in which they were born. the english aristocracy have never been a caste apart, and are not a caste apart now. they would keep up nothing that other landed gentlemen would not. and if any landed gentlemen are to be sent to the house of commons, it is desirable that many should be men of some rank. as long as we keep up a double set of institutions--one dignified and intended to impress the many, the other efficient and intended to govern the many--we should take care that the two match nicely, and hide where the one begins and where the other ends. this is in part effected by conceding some subordinate power to the august part of our polity, but it is equally aided by keeping an aristocratic element in the useful part of our polity. in truth, the deferential instinct secures both. aristocracy is a power in the "constituencies". a man who is an honourable or a baronet, or better yet, perhaps, a real earl, though irish, is coveted by half the electing bodies; and caeteris paribus, a manufacturer's son has no chance with him. the reality of the deferential feeling in the community is tested by the actual election of the class deferred to, where there is a large free choice betwixt it and others. subject therefore to the two minor, but still not inconsiderable, defects i have named, parliament conforms itself accurately enough, both as a chooser of executives and as a legislature, to the formed opinion of the country. similarly, and subject to the same exceptions, it expresses the nation's opinion in words well, when it happens that words, not laws, are wanted. on foreign matters, where we cannot legislate, whatever the english nation thinks, or thinks it thinks, as to the critical events of the world, whether in denmark, in italy, or america, and no matter whether it thinks wisely or unwisely, that same something, wise or unwise, will be thoroughly well said in parliament. the lyrical function of parliament, if i may use such a phrase, is well done; it pours out in characteristic words the characteristic heart of the nation. and it can do little more useful. now that free government is in europe so rare and in america so distant, the opinion, even the incomplete, erroneous, rapid opinion of the free english people is invaluable. it may be very wrong, but it is sure to be unique; and if it is right it is sure to contain matter of great magnitude, for it is only a first-class matter in distant things which a free people ever sees or learns. the english people must miss a thousand minutiae that continental bureaucracies know even too well; but if they see a cardinal truth which those bureaucracies miss, that cardinal truth may greatly help the world. but if in these ways, and subject to these exceptions, parliament by its policy and its speech well embodies and expresses public opinion, i own i think it must be conceded that it is not equally successful in elevating public opinion. the teaching task of parliament is the task it does worst. probably at this moment, it is natural to exaggerate this defect. the greatest teacher of all in parliament, the head-master of the nation, the great elevator of the country--so far as parliament elevates it--must be the prime minister: he has an influence, an authority, a facility in giving a great tone to discussion, or a mean tone, which no other man has. now lord palmerston for many years steadily applied his mind to giving, not indeed a mean tone, but a light tone, to the proceedings of parliament. one of his greatest admirers has since his death told a story of which he scarcely sees, or seems to see, the full effect. when lord palmerston was first made leader of the house, his jaunty manner was not at all popular, and some predicted failure. "no," said an old member, "he will soon educate us down to his level; the house will soon prefer this ha! ha! style to the wit of canning and the gravity of peel." i am afraid that we must own that the prophecy was accomplished. no prime minister, so popular and so influential, has ever left in the public memory so little noble teaching. twenty years hence, when men inquire as to the then fading memory of palmerston, we shall be able to point to no great truth which he taught, no great distinct policy which he embodied, no noble words which once fascinated his age, and which, in after years, men would not willingly let die. but we shall be able to say "he had a genial manner, a firm, sound sense; he had a kind of cant of insincerity, but we always knew what he meant; he had the brain of a ruler in the clothes of a man of fashion". posterity will hardly understand the words of the aged reminiscent, but we now feel their effect. the house of commons, since it caught its tone from such a statesman, has taught the nation worse, and elevated it less, than usual. i think, however, that a correct observer would decide that in general, and on principle, the house of commons does not teach the public as much as it might teach it, or as the public would wish to learn. i do not wish very abstract, very philosophical, very hard matters to be stated in parliament. the teaching there given must be popular, and to be popular it must be concrete, embodied, short. the problem is to know the highest truth which the people will bear, and to inculcate and preach that. certainly lord palmerston did not preach it. he a little degraded us by preaching a doctrine just below our own standard--a doctrine not enough below us to repel us much, but yet enough below to harm us by augmenting a worldliness which needed no addition, and by diminishing a love of principle and philosophy which did not want deduction. in comparison with the debates of any other assembly, it is true the debates by the english parliament are most instructive. the debates in the american congress have little teaching efficacy; it is the characteristic vice of presidential government to deprive them of that efficacy; in that government a debate in the legislature has little effect, for it cannot turn out the executive, and the executive can veto all it decides. the french chambers[ ] are suitable appendages to an empire which desires the power of despotism without its shame; they prevent the enemies of the empire being quite correct when they say there is no free speech; a few permitted objectors fill the air with eloquence, which every one knows to be often true, and always vain. the debates in an english parliament fill a space in the world which, in these auxiliary chambers, is not possible. but i think any one who compares the discussions on great questions in the higher part of the press, with the discussions in parliament, will feel that there is (of course amid much exaggeration and vagueness) a greater vigour and a higher meaning in the writing than in the speech: a vigour which the public appreciate--a meaning that they like to hear. [ ] this of course relates to the assemblies of the empire. the saturday review said, some years since, that the ability of parliament was a "protected ability": that there was at the door a differential duty of at least pounds a year. accordingly the house of commons, representing only mind coupled with property, is not equal in mind to a legislature chosen for mind only, and whether accompanied by wealth or not. but i do not for a moment wish to see a representation of pure mind; it would be contrary to the main thesis of this essay. i maintain that parliament ought to embody the public opinion of the english nation; and, certainly, that opinion is much more fixed by its property than by its mind. the "too clever by half" people who live in "bohemia," ought to have no more influence in parliament than they have in england, and they can scarcely have less. only, after every great abatement and deduction, i think the country would bear a little more mind; and that there is a profusion of opulent dulness in parliament which might a little--though only a little--be pruned away. the only function of parliament which remains to be considered is the informing function, as i just now called it; the function which belongs to it, or to members of it, to bring before the nation the ideas, grievances, and wishes of special classes. this must not be confounded with what i have called its teaching function. in life, no doubt, the two run one into another. but so do many things which it is very important in definition to separate. the facts of two things being often found together is rather a reason for, than an objection to, separating them, in idea. sometimes they are not found together, and then we may be puzzled if we have not trained ourselves to separate them. the teaching function brings true ideas before the nation, and is the function of its highest minds. the expressive function brings only special ideas, and is the function of but special minds. each class has its ideas, wants, and notions; and certain brains are ingrained with them. such sectarian conceptions are not those by which a determining nation should regulate its action, nor are orators, mainly animated by such conceptions, safe guides in policy. but those orators should be heard; those conceptions should be kept in sight. the great maxim of modern thought is not only the toleration of everything, but the examination of everything. it is by examining very bare, very dull, very unpromising things, that modern science has come to be what it is. there is a story of a great chemist who said he owed half his fame to his habit of examining after his experiments, what was going to be thrown away: everybody knew the result of the experiment itself, but in the refuse matter there were many little facts and unknown changes, which suggested the discoveries of a famous life to a person capable of looking for them. so with the special notions of neglected classes. they may contain elements of truth which, though small, are the very elements which we now require, because we already know all the rest. this doctrine was well known to our ancestors. they laboured to give a character to the various constituencies, or to many of them. they wished that the shipping trade, the wool trade, the linen trade, should each have their spokesman; that the unsectional parliament should know what each section in the nation thought before it gave the national decision. this is the true reason for admitting the working classes to a share in the representation, at least as far as the composition of parliament is to be improved by that admission. a great many ideas, a great many feelings have gathered among the town artisans--a peculiar intellectual life has sprung up among them. they believe that they have interests which are misconceived or neglected; that they know something which others do not know; that the thoughts of parliament are not as their thoughts. they ought to be allowed to try to convince parliament; their notions ought to be stated as those of other classes are stated; their advocates should be heard as other people's advocates are heard. before the reform bill, there was a recognised machinery for that purpose. the member for westminster, and other members, were elected by universal suffrage (or what was in substance such); those members did, in their day, state what were the grievances and ideas--or were thought to be the grievances and ideas--of the working classes. it was the single, unbending franchise introduced in that has caused this difficulty, as it has others. until such a change is made the house of commons will be defective, just as the house of lords was defective. it will not look right. as long as the lords do not come to their own house, we may prove on paper that it is a good revising chamber, but it will be difficult to make the literary argument felt. just so, as long as a great class, congregated in political localities, and known to have political thoughts and wishes, is without notorious and palpable advocates in parliament, we may prove on paper that our representation is adequate, but the world will not believe it. there is a saying in the eighteenth century, that in politics, "gross appearances are great realities". it is in vain to demonstrate that the working classes have no grievances; that the middle classes have done all that is possible for them, and so on with a crowd of arguments which i need not repeat, for the newspapers keep them in type, and we can say them by heart. but so long as the "gross appearance" is that there are no evident, incessant representatives to speak the wants of artisans, the "great reality" will be a diffused dissatisfaction. thirty years ago it was vain to prove that gatton and old sarum were valuable seats, and sent good members. everybody said, "why, there are no people there". just so everybody must say now, "our representative system must be imperfect, for an immense class has no members to speak for it". the only answer to the cry against constituencies without inhabitants was to transfer their power to constituencies with inhabitants. just so, the way to stop the complaint that artisans have no members is to give them members--to create a body of representatives, chosen by artisans, believing, as mr. carlyle would say, "that artisanism is the one thing needful". no. vi. on changes of ministry. there is one error as to the english constitution which crops up periodically. circumstances which often, though irregularly, occur naturally suggests that error, and as surely as they happen it revives. the relation of parliament, and especially of the house of commons, to the executive government is the specific peculiarity of our constitution, and an event which frequently happens much puzzles some people as to it. that event is a change of ministry. all our administrators go out together. the whole executive government changes--at least, all the heads of it change in a body, and at every such change some speculators are sure to exclaim that such a habit is foolish. they say: "no doubt mr. gladstone and lord russell may have been wrong about reform; no doubt mr. gladstone may have been cross in the house of commons; but why should either or both of these events change all the heads of all our practical departments? what could be more absurd than what happened in ? lord palmerston was for once in his life over-buoyant; he gave rude answers to stupid inquiries; he brought into the cabinet a nobleman concerned in an ugly trial about a woman; he, or his foreign secretary, did not answer a french despatch by a despatch, but told our ambassador to reply orally. and because of these trifles, or at any rate these isolated unadministrative mistakes, all our administration had fresh heads. the poor law board had a new chief, the home department a new chief, the public works a new chief. surely this was absurd." now, is this objection good or bad? speaking generally, is it wise so to change all our rulers? the practice produces three great evils. first, it brings in on a sudden new persons and untried persons to preside over our policy. a little while ago lord cranborne[ ] had no more idea that he would now be indian secretary than that he would be a bill broker. he had never given any attention to indian affairs; he can get them up, because he is an able educated man who can get up anything. but they are not "part and parcel" of his mind; not his subjects of familiar reflection, nor things of which he thinks by predilection, of which he cannot help thinking. but because lord russell and mr. gladstone did not please the house of commons about reform, there he is. a perfectly inexperienced man, so far as indian affairs go, rules all our indian empire. and if all our heads of offices change together, so very frequently it must be. if twenty offices are vacant at once, there are almost never twenty tried, competent, clever men ready to take them. the difficulty of making up a government is very much like the difficulty of putting together a chinese puzzle: the spaces do not suit what you have to put into them. and the difficulty of matching a ministry is more than that of fitting a puzzle, because the ministers to be put in can object, though the bits of a puzzle cannot. one objector can throw out the combination. in lord grey would not join lord john russell's projected government if lord palmerston was to be foreign secretary; lord palmerston would be foreign secretary, and so the government was not formed. the cases in which a single refusal prevents a government are rare, and there must be many concurrent circumstances to make it effectual. but the cases in which refusals impair or spoil a government are very common. it almost never happens that the ministry-maker can put into his offices exactly whom he would like; a number of placemen are always too proud, too eager, or too obstinate to go just where they should. [ ] now lord salisbury, who, when this was written, was indian secretary.--note to second edition. again, this system not only makes new ministers ignorant, but keeps present ministers indifferent. a man cannot feel the same interest that he might in his work if he knows that by events over which he has no control, by errors in which he had no share, by metamorphoses of opinion which belong to a different sequence of phenomena, he may have to leave that work in the middle, and may very likely never return to it. the new man put into a fresh office ought to have the best motive to learn his task thoroughly, but, in fact, in england, he has not at all the best motive. the last wave of party and politics brought him there, the next may take him away. young and eager men take, even at this disadvantage, a keen interest in office work, but most men, especially old men, hardly do so. many a battered minister may be seen to think much more of the vicissitudes which make him and unmake him, than of any office matter. lastly, a sudden change of ministers may easily cause a mischievous change of policy. in many matters of business, perhaps in most, a continuity of mediocrity is better than a hotch-potch of excellences. for example, now that progress in the scientific arts is revolutionising the instruments of war, rapid changes in our head-preparers for land and sea war are most costly and most hurtful. a single competent selector of new inventions would probably in the course of years, after some experience, arrive at something tolerable; it is in the nature of steady, regular, experimenting ability to diminish, if not vanquish, such difficulties. but a quick succession of chiefs has no similar facility. they do not learn from each other's experience;--you might as well expect the new head boy at a public school to learn from the experience of the last head boy. the most valuable result of many years is a nicely balanced mind instinctively heedful of various errors; but such a mind is the incommunicable gift of individual experience, and an outgoing minister can no more leave it to his successor, than an elder brother can pass it on to a younger. thus a desultory and incalculable policy may follow from a rapid change of ministers. these are formidable arguments, but four things may, i think, be said in reply to, or mitigation of them. a little examination will show that this change of ministers is essential to a parliamentary government; that something like it will happen in all elective governments, and that worse happens under presidential government; that it is not necessarily prejudicial to a good administration, but that, on the contrary, something like it is a prerequisite of good administration; that the evident evils of english administration are not the results of parliamentary government, but of grave deficiencies in other parts of our political and social state; that, in a word, they result not from what we have, but from what we have not. as to the first point, those who wish to remove the choice of ministers from parliament have not adequately considered what a parliament is. a parliament is nothing less than a big meeting of more or less idle people. in proportion as you give it power it will inquire into everything, settle everything, meddle in everything. in an ordinary despotism, the powers of a despot are limited by his bodily capacity, and by the calls of pleasure; he is but one man; there are but twelve hours in his day, and he is not disposed to employ more than a small part in dull business; he keeps the rest for the court, or the harem, or for society. he is at the top of the world, and all the pleasures of the world are set before him. mostly there is only a very small part of political business which he cares to understand, and much of it (with the shrewd sensual sense belonging to the race) he knows that he will never understand. but a parliament is composed of a great number of men by no means at the top of the world. when you establish a predominant parliament, you give over the rule of the country to a despot who has unlimited time--who has unlimited vanity--who has, or believes he has, unlimited comprehension, whose pleasure is in action, whose life is work. there is no limit to the curiosity of parliament. sir robert peel once suggested that a list should be taken down of the questions asked of him in a single evening; they touched more or less on fifty subjects, and there were a thousand other subjects which by parity of reason might have been added too. as soon as bore a ends, bore b begins. some inquire from genuine love of knowledge, or from a real wish to improve what they ask about; others to see their name in the papers; others to show a watchful constituency that they are alert; others to get on and to get a place in the government; others from an accumulation of little motives they could not themselves analyse, or because it is their habit to ask things. and a proper reply must be given. it was said that "darby griffith destroyed lord palmerston's first government," and undoubtedly the cheerful impertinence with which in the conceit of victory that minister answered grave men much hurt his parliamentary power. there is one thing which no one will permit to be treated lightly--himself. and so there is one too which a sovereign assembly will never permit to be lessened or ridiculed--its own power. the minister of the day will have to give an account in parliament of all branches of administration, to say why they act when they do, and why they do not when they don't. nor is chance inquiry all a public department has most to fear. fifty members of parliament may be zealous for a particular policy affecting the department, and fifty others for another policy, and between them they may divide its action, spoil its favourite aims, and prevent its consistently working out either of their own aims. the process is very simple. every department at times looks as if it was in a scrape; some apparent blunder, perhaps some real blunder, catches the public eye. at once the antagonist parliamentary sections, which want to act on the department, seize the opportunity. they make speeches, they move for documents, they amass statistics. they declare "that in no other country is such a policy possible as that which the department is pursuing; that it is mediaeval; that it costs money; that it wastes life; that america does the contrary; that prussia does the contrary". the newspapers follow according to their nature. these bits of administrative scandal amuse the public. articles on them are very easy to write, easy to read, easy to talk about. they please the vanity of mankind. we think as we read, "thank god, _i_ am not as that man; _i_ did not send green coffee to the crimea; _i_ did not send patent cartridge to the common guns, and common cartridge to the breech loaders. _i_ make money; that miserable public functionary only wastes money". as for the defence of the department, no one cares for it or reads it. naturally at first hearing it does not sound true. the opposition have the unrestricted selection of the point of attack, and they seldom choose a case in which the department, upon the surface of the matter, seems to be right. the case of first impression will always be that something shameful has happened; that such and such men did die; that this and that gun would not go off; that this or that ship will not sail. all the pretty reading is unfavourable, and all the praise is very dull. nothing is more helpless than such a department in parliament if it has no authorised official defender. the wasps of the house fasten on it; here they perceive is something easy to sting, and safe, for it cannot sting in return. the small grain of foundation for complaint germinates, till it becomes a whole crop. at once the minister of the day is appealed to; he is at the head of the administration, and he must put the errors right, if such they are. the opposition leader says: "i put it to the right honourable gentleman, the first lord of the treasury. he is a man of business. i do not agree with him in his choice of ends, but he is an almost perfect master of methods and means. what he wishes to do he does do. now i appeal to him whether such gratuitous errors, such fatuous incapacity, are to be permitted in the public service. perhaps the right honourable gentleman will grant me his attention while i show from the very documents of the departments," etc., etc. what is the minister to do? he never heard of this matter; he does not care about the matter. several of the supporters of the government are interested in the opposition to the department; a grave man, supposed to be wise, mutters, "this is too bad". the secretary of the treasury tells him, "the house is uneasy. a good many men are shaky. a. b. said yesterday he had been dragged through the dirt four nights following. indeed i am disposed to think myself that the department has been somewhat lax. perhaps an inquiry," etc., etc. and upon that the prime minister rises and says: "that her majesty's government having given very serious and grave consideration to this most important subject, are not prepared to say that in so complicated a matter the department has been perfectly exempt from error. he does not indeed concur in all the statements which have been made; it is obvious that several of the charges advanced are inconsistent with one another. if a. had really died from eating green coffee on the tuesday, it is plain he could not have suffered from insufficient medical attendance on the following thursday. however, on so complex a subject, and one so foreign to common experience, he will not give a judgment. and if the honourable member would be satisfied with having the matter inquired into by a committee of that house, he will be prepared to accede to the suggestion." possibly the outlying department, distrusting the ministry, crams a friend. but it is happy indeed if it chances on a judicious friend. the persons most ready to take up that sort of business are benevolent amateurs, very well intentioned, very grave, very respectable, but also rather dull. their words are good, but about the joints their arguments are weak. they speak very well, but while they are speaking, the decorum is so great that everybody goes away. such a man is no match for a couple of house of commons gladiators. they pull what he says to shreds. they show or say that he is wrong about his facts. then he rises in a fuss and must explain: but in his hurry he mistakes, and cannot find the right paper, and becomes first hot, then confused, next inaudible, and so sits down. probably he leaves the house with the notion that the defence of the department has broken down, and so the times announces to all the world as soon as it awakes. some thinkers have naturally suggested that the heads of departments should as such have the right of speech in the house. but the system when it has been tried has not answered. m. guizot tells us from his own experience that such a system is not effectual. a great popular assembly has a corporate character; it has its own privileges, prejudices, and notions. and one of these notions is that its own members--the persons it sees every day--whose qualities it knows, whose minds it can test, are those whom it can most trust. a clerk speaking from without would be an unfamiliar object. he would be an outsider. he would speak under suspicion; he would speak without dignity. very often he would speak as a victim. all the bores of the house would be upon him. he would be put upon examination. he would have to answer interrogatories. he would be put through the figures and cross-questioned in detail. the whole effect of what he said would be lost in quaestiunculae and hidden in a controversial detritus. again, such a person would rarely speak with great ability. he would speak as a scribe. his habits must have been formed in the quiet of an office: he is used to red tape, placidity, and the respect of subordinates. such a person will hardly ever be able to stand the hurly-burly of a public assembly. he will lose his head--he will say what he should not. he will get hot and red; he will feel he is a sort of culprit. after being used to the flattering deference of deferential subordinates, he will be pestered by fuss and confounded by invective. he will hate the house as naturally as the house does not like him. he will be an incompetent speaker addressing a hostile audience. and what is more, an outside administrator addressing parliament can move parliament only by the goodness of his arguments. he has no votes to back them up with. he is sure to be at chronic war with some active minority of assailants or others. the natural mode in which a department is improved on great points and new points is by external suggestion; the worse foes of a department are the plausible errors which the most visible facts suggest, and which only half visible facts confute. both the good ideas and the bad ideas are sure to find advocates first in the press and then in parliament. against these a permanent clerk would have to contend by argument alone. the minister, the head of the parliamentary government, will not care for him. the minister will say in some undress soliloquy, "these permanent 'fellows' must look after themselves. i cannot be bothered. i have only a majority of nine, and a very shaky majority, too. i cannot afford to make enemies for those whom i did not appoint. they did nothing for me, and i can do nothing for them." and if the permanent clerk come to ask his help, he will say in decorous language, "i am sure that if the department can evince to the satisfaction of parliament that its past management has been such as the public interests require, no one will be more gratified than myself. i am not aware if it will be in my power to attend in my place on monday; but if i can be so fortunate, i shall listen to your official statement with my very best attention." and so the permanent public servant will be teased by the wits, oppressed by the bores, and massacred by the innovators of parliament. the incessant tyranny of parliament over the public offices is prevented and can only be prevented by the appointment of a parliamentary head, connected by close ties with the present ministry and the ruling party in parliament the parliamentary head is a protecting machine. he and the friends he brings stand between the department and the busybodies and crotchet-makers of the house and the country. so long as at any moment the policy of an office could be altered by chance votes in either house of parliament, there is no security for any consistency. our guns and our ships are not, perhaps, very good now. but they would be much worse if any thirty or forty advocates for this gun or that gun could make a motion in parliament, beat the department, and get their ships or their guns adopted. the "black breech ordnance company" and the "adamantine ship company" would soon find representatives in parliament, if forty or fifty members would get the national custom for their rubbish. but this result is now prevented by the parliamentary head of the department. as soon as the opposition begins the attack, he looks up his means of defence. he studies the subject, compiles his arguments, and builds little piles of statistics, which he hopes will have some effect. he has his reputation at stake, and he wishes to show that he is worth his present place, and fit for future promotion. he is well known, perhaps liked, by the house--at any rate the house attends to him; he is one of the regular speakers whom they hear and heed. he is sure to be able to get himself heard, and he is sure to make the best defence he can. and after he has settled his speech he loiters up to the secretary of the treasury, and says quietly, "they have got a motion against me on tuesday, you know. i hope you will have your men here. a lot of fellows have crotchets, and though they do not agree a bit with one another, they are all against the department; they will all vote for the inquiry." and the secretary answers, "tuesday, you say; no (looking at a paper), i do not think it will come on tuesday. there is higgins on education. he is good for a long time. but anyhow it shall be all right." and then he glides about and speaks a word here and a word there, in consequence of which, when the anti-official motion is made, a considerable array of steady, grave faces sits behind the treasury bench--nay, possibly a rising man who sits in outlying independence below the gangway rises to defend the transaction; the department wins by thirty-three, and the management of that business pursues its steady way. this contrast is no fancy picture. the experiment of conducting the administration of a public department by an independent unsheltered authority has often been tried, and always failed. parliament always poked at it, till it made it impossible. the most remarkable is that of the poor law. the administration of that law is not now very good, but it is not too much to say that almost the whole of its goodness has been preserved by its having an official and party protector in the house of commons. without that contrivance we should have drifted back into the errors of the old poor law, and superadded to them the present meanness and incompetence in our large towns. all would have been given up to local management. parliament would have interfered with the central board till it made it impotent, and the local authorities would have been despotic. the first administration of the new poor law was by "commissioners"--the three kings of somerset house, as they were called. the system was certainly not tried in untrustworthy hands. at the crisis mr. chadwick, one of the most active and best administrators in england, was the secretary and the motive power: the principal commissioner was sir george lewis, perhaps the best selective administrator of our time. but the house of commons would not let the commission alone. for a long time it was defended because the whigs had made the commission, and felt bound as a party to protect it. the new law started upon a certain intellectual impetus, and till that was spent its administration was supported in a rickety existence by an abnormal strength. but afterwards the commissioners were left to their intrinsic weakness. there were members for all the localities, but there were none for them. there were members for every crotchet and corrupt interest, but there were none for them. the rural guardians would have liked to eke out wages by rates; the city guardians hated control, and hated to spend money. the commission had to be dissolved, and a parliamentary head was added; the result is not perfect, but it is an amazing improvement on what would have happened in the old system. the new system has not worked well because the central authority has too little power; but under the previous system the central authority was getting to have, and by this time would have had, no power at all. and if sir george lewis and mr. chadwick could not maintain an outlying department in the face of parliament, how unlikely that an inferior compound of discretion and activity will ever maintain it! these reasonings show why a changing parliamentary head, a head changing as the ministry changes, is a necessity of good parliamentary government, and there is happily a natural provision that there will be such heads. party organisation ensures it. in america, where on account of the fixedly recurring presidential election, and the perpetual minor elections, party organisation is much more effectually organised than anywhere else, the effect on the offices is tremendous. every office is filled anew at every presidential change, at least every change which brings in a new party. not only the greatest posts, as in england, but the minor posts change their occupants. the scale of the financial operations of the federal government is now so increased that most likely in that department, at least, there must in future remain a permanent element of great efficiency; a revenue of , , pounds sterling cannot be collected and expended with a trifling and changing staff. but till now the americans have tried to get on not only with changing heads to a bureaucracy, as the english, but without any stable bureaucracy at all. they have facilities for trying it which no one else has. all americans can administer, and the number of them really fit to be in succession lawyers, financiers, or military managers is wonderful; they need not be as afraid of a change of all their officials as european countries must, for the incoming substitutes are sure to be much better there than here; and they do not fear, as we english fear, that the outgoing officials will be left destitute in middle life, with no hope for the future and no recompense for the past, for in america (whatever may be the cause of it) opportunities are numberless, and a man who is ruined by being "off the rails" in england soon there gets on another line. the americans will probably to some extent modify their past system of total administrative cataclysms, but their very existence in the only competing form of free government should prepare us for and make us patient with the mild transitions of parliamentary government. these arguments will, i think, seem conclusive to almost every one; but, at this moment, many people will meet them thus: they will say, "you prove what we do not deny, that this system of periodical change is a necessary ingredient in parliamentary government, but you have not proved what we do deny, that this change is a good thing. parliamentary government may have that effect, among others, for anything we care: we maintain merely that it is a defect." in answer, i think it may be shown not, indeed, that this precise change is necessary to a permanently perfect administration, but that some analogous change, some change of the same species, is so. at this moment, in england, there is a sort of leaning towards bureaucracy--at least, among writers and talkers. there is a seizure of partiality to it. the english people do not easily change their rooted notions, but they have many unrooted notions. any great european event is sure for a moment to excite a sort of twinge of conversion to something or other. just now, the triumph of the prussians--the bureaucratic people, as is believed, par excellence--has excited a kind of admiration for bureaucracy, which a few years since we should have thought impossible. i do not presume to criticise the prussian bureaucracy of my own knowledge; it certainly is not a pleasant institution for foreigners to come across, though agreeableness to travellers is but of very second-rate importance. but it is quite certain that the prussian bureaucracy, though we, for a moment, half admire it at a distance, does not permanently please the most intelligent and liberal prussians at home. what are two among the principal aims of the fortschritt partei--the party of progress--as mr. grant duff, the most accurate and philosophical of our describers, delineates them? first, "a liberal system, conscientiously carried out in all the details of the administration, with a view to avoiding the scandals now of frequent occurrence, when an obstinate or bigoted official sets at defiance the liberal initiations of the government, trusting to backstairs influence". second, "an easy method of bringing to justice guilty officials, who are at present, as in france, in all conflicts with simple citizens, like men armed cap-a-pie fighting with defenceless". a system against which the most intelligent native liberals bring even with colour of reason such grave objections, is a dangerous model for foreign imitation. the defects of bureaucracy are, indeed, well known. it is a form of government which has been tried often enough in the world, and it is easy to show what, human nature being what it in the long run is, the defects of a bureaucracy must in the long run be. it is an inevitable defect, that bureaucrats will care more for routine than for results; or, as burke put it, "that they will think the substance of business not to be much more important than the forms of it". their whole education and all the habit of their lives make them do so. they are brought young into the particular part of the public service to which they are attached; they are occupied for years in learning its forms--afterwards, for years too, in applying these forms to trifling matters. they are, to use the phrase of an old writer, "but the tailors of business; they cut the clothes, but they do not find the body". men so trained must come to think the routine of business not a means, but an end--to imagine the elaborate machinery of which they form a part, and from which they derive their dignity, to be a grand and achieved result, not a working and changeable instrument. but in a miscellaneous world, there is now one evil and now another. the very means which best helped you yesterday, may very likely be those which most impede you to-morrow--you may want to do a different thing to-morrow, and all your accumulation of means for yesterday's work is but an obstacle to the new work. the prussian military system is the theme of popular wonder now, yet it sixty years pointed the moral against form. we have all heard the saying that "frederic the great lost the battle of jena". it was the system which he had established--a good system for his wants and his times--which, blindly adhered to, and continued into a different age, put to strive with new competitors, brought his country to ruin. the "dead and formal" prussian system was then contrasted with the "living" french system--the sudden outcome of the new explosive democracy. the system which now exists is the product of the reaction; and the history of its predecessor is a warning what its future history may be too. it is not more celebrated for its day than frederic's for his, and principle teaches that a bureaucracy, elated by sudden success, and marvelling at its own merit, is the most unimproving and shallow of governments. not only does a bureaucracy thus tend to under-government, in point of quality; it tends to over-government, in point of quantity. the trained official hates the rude, untrained public. he thinks that they are stupid, ignorant, reckless--that they cannot tell their own interest--that they should have the leave of the office before they do anything. protection is the natural inborn creed of every official body; free trade is an extrinsic idea alien to its notions, and hardly to be assimilated with life; and it is easy to see how an accomplished critic, used to a free and active life, could thus describe the official. "every imaginable and real social interest," says mr. laing, "religion, education, law, police, every branch of public or private business, personal liberty to move from place to place, even from parish to parish within the same jurisdiction; liberty to engage in any branch of trade or industry, on a small or large scale, all the objects, in short, in which body, mind, and capital can be employed in civilised society, were gradually laid hold of for the employment and support of functionaries, were centralised in bureaux, were superintended, licensed, inspected, reported upon, and interfered with by a host of officials scattered over the land, and maintained at the public expense, yet with no conceivable utility in their duties. they are not, however, gentlemen at large, enjoying salary without service. they are under a semi-military discipline. in bavaria, for instance, the superior civil functionary can place his inferior functionary under house-arrest, for neglect of duty, or other offence against civil functionary discipline. in wurtemberg, the functionary cannot marry without leave from his superior. voltaire says, somewhere, that, 'the art of government is to make two-thirds of a nation pay all it possibly can pay for the benefit of the other third'. this is realised in germany by the functionary system. the functionaries are not there for the benefit of the people, but the people for the benefit of the functionaries. all this machinery of functionarism, with its numerous ranks and gradations in every district, filled with a staff of clerks and expectants in every department looking for employment, appointments, or promotions, was intended to be a new support of the throne in the new social state of the continent; a third class, in connection with the people by their various official duties of interference in all public or private affairs, yet attached by their interests to the kingly power. the beamptenstand, or functionary class, was to be the equivalent to the class of nobility, gentry, capitalists, and men of larger landed property than the peasant-proprietors, and was to make up in numbers for the want of individual weight and influence. in france, at the expulsion of louis philippe, the civil functionaries were stated to amount to , individuals. this civil army was more than double of the military. in germany, this class is necessarily more numerous in proportion to the population, the landwehr system imposing many more restrictions than the conscription on the free action of the people, and requiring more officials to manage it, and the semi-feudal jurisdictions and forms of law requiring much more writing and intricate forms of procedure before the courts than the code napoleon." a bureaucracy is sure to think that its duty is to augment official power, official business, or official members, rather than to leave free the energies of mankind; it overdoes the quantity of government, as well as impairs its quality. the truth is, that a skilled bureaucracy--a bureaucracy trained from early life to its special avocation--is, though it boasts of an appearance of science, quite inconsistent with the true principles of the art of business. that art has not yet been condensed into precepts, but a great many experiments have been made, and a vast floating vapour of knowledge floats through society. one of the most sure principles is, that success depends on a due mixture of special and non-special minds--of minds which attend to the means, and of minds which attend to the end. the success of the great joint-stock banks of london--the most remarkable achievement of recent business--has been an example of the use of this mixture. these banks are managed by a board of persons mostly not trained to the business, supplemented by, and annexed to, a body of specially trained officers, who have been bred to banking all their lives. these mixed banks have quite beaten the old banks, composed exclusively of pure bankers; it is found that the board of directors has greater and more flexible knowledge--more insight into the wants of a commercial community--knows when to lend and when not to lend, better than the old bankers, who had never looked at life, except out of the bank windows. just so the most successful railways in europe have been conducted--not by engineers or traffic managers--but by capitalists; by men of a certain business culture, if of no other. these capitalists buy and use the services of skilled managers, as the unlearned attorney buys and uses the services of the skilled barrister, and manage far better than any of the different sorts of special men under them. they combine these different specialities--make it clear where the realm of one ends and that of the other begins, and add to it a wide knowledge of large affairs, which no special man can have, and which is only gained by diversified action. but this utility of leading minds used to generalise, and acting upon various materials, is entirely dependent upon their position. they must not be at the bottom--they must not even be half way up--they must be at the top. a merchant's clerk would be a child at a bank counter; but the merchant himself could, very likely, give good, clear, and useful advice in a bank court. the merchant's clerk would be equally at sea in a railway office, but the merchant himself could give good advice, very likely, at a board of directors. the summits (if i may so say) of the various kinds of business are, like the tops of mountains, much more alike than the parts below--the bare principles are much the same; it is only the rich variegated details of the lower strata that so contrast with one another. but it needs travelling to know that the summits are the same. those who live on one mountain believe that their mountain is wholly unlike all others. the application of this principle to parliamentary government is very plain; it shows at once that the intrusion from without upon an office of an exterior head of the office, is not an evil, but that, on the contrary, it is essential to the perfection of that office. if it is left to itself, the office will become technical, self-absorbed, self-multiplying. it will be likely to overlook the end in the means; it will fail from narrowness of mind; it will be eager in seeming to do; it will be idle in real doing. an extrinsic chief is the fit corrector of such errors. he can say to the permanent chief, skilled in the forms and pompous with the memories of his office, "will you, sir, explain to me how this regulation conduces to the end in view? according to the natural view of things, the applicant should state the whole of his wishes to one clerk on one paper; you make him say it to five clerks on five papers." or, again, "does it not appear to you, sir, that the reason of this formality is extinct? when we were building wood ships, it was quite right to have such precautions against fire; but now that we are building iron ships," etc., etc. if a junior clerk asked these questions, he would be "pooh-poohed!" it is only the head of an office that can get them answered. it is he, and he only, that brings the rubbish of office to the burning-glass of sense. the immense importance of such a fresh mind is greatest in a country where business changes most. a dead, inactive, agricultural country may be governed by an unalterable bureau for years and years, and no harm come of it. if a wise man arranged the bureau rightly in the beginning, it may run rightly a long time. but if the country be a progressive, eager, changing one, soon the bureau will either cramp improvement, or be destroyed itself. this conception of the use of a parliamentary head shows how wrong is the obvious notion which regards him as the principal administrator of his office. the late sir george lewis used to be fond of explaining this subject. he had every means of knowing. he was bred in the permanent civil service. he was a very successful chancellor of the exchequer, a very successful home secretary, and he died minister for war. he used to say, "it is not the business of a cabinet minister to work his department. his business is to see that it is properly worked. if he does much, he is probably doing harm. the permanent staff of the office can do what he chooses to do much better, or if they cannot, they ought to be removed. he is only a bird of passage, and cannot compete with those who are in the office all their lives round." sir george lewis was a perfect parliamentary head of an office, so far as that head is to be a keen critic and rational corrector of it. but sir george lewis was not perfect; he was not even an average good head in another respect. the use of a fresh mind applied to the official mind is not only a corrective use, it is also an animating use. a public department is very apt to be dead to what is wanting for a great occasion till the occasion is past. the vague public mind will appreciate some signal duty before the precise, occupied administration perceives it. the duke of newcastle was of this use at least in the crimean war. he roused up his department, though when roused it could not act. a perfect parliamentary minister would be one who should add the animating capacity of the duke of newcastle to the accumulated sense, the detective instinct, and the laissez faire habit of sir george lewis. as soon as we take the true view of parliamentary office we shall perceive that, fairly, frequent change in the official is an advantage, not a mistake. if his function is to bring a representative of outside sense and outside animation in contact with the inside world, he ought often to be changed. no man is a perfect representative of outside sense. "there is some one," says the true french saying, "who is more able than talleyrand, more able than napoleon. cest tout le monde." that many-sided sense finds no microcosm in any single individual. still less are the critical function and the animating function of a parliamentary minister likely to be perfectly exercised by one and the same man. impelling power and restraining wisdom are as opposite as any two things, and are rarely found together. and even if the natural mind of the parliamentary minister was perfect, long contact with the office would destroy his use. inevitably he would accept the ways of office, think its thoughts, live its life. the "dyer's hand would be subdued to what it works in". if the function of a parliamentary minister is to be an outsider to his office, we must not choose one who, by habit, thought, and life, is acclimatised to its ways. there is every reason to expect that a parliamentary statesman will be a man of quite sufficient intelligence, quite enough various knowledge, quite enough miscellaneous experience, to represent effectually general sense in opposition to bureaucratic sense. most cabinet ministers in charge of considerable departments are men of superior ability; i have heard an eminent living statesman of long experience say that in his time he only knew one instance to the contrary. and there is the best protection that it shall be so. a considerable cabinet minister has to defend his department in the face of mankind; and though distant observers and sharp writers may depreciate it, this is a very difficult thing. a fool, who has publicly to explain great affairs, who has publicly to answer detective questions, who has publicly to argue against able and quick opponents, must soon be shown to be a fool. the very nature of parliamentary government answers for the discovery of substantial incompetence. at any rate, none of the competing forms of government have nearly so effectual a procedure for putting a good untechnical minister to correct and impel the routine ones. there are but four important forms of government in the present state of the world--the parliamentary, the presidential, the hereditary, and the dictatorial, or revolutionary. of these i have shown that, as now worked in america, the presidential form of government is incompatible with a skilled bureaucracy. if the whole official class change when a new party goes out or comes in, a good official system is impossible. even if more officials should be permanent in america than now, still, vast numbers will always be changed. the whole issue is based on a single election--on the choice of president; by that internecine conflict all else is won or lost. the managers of the contest have that greatest possible facility in using what i may call patronage--bribery. everybody knows that, as a fact, the president can give what places he likes to what persons, and when his friends tell a. b., "if we win, c. d. shall be turned out of utica post-office, and you, a. b., shall have it," a. b. believes it, and is justified in doing so. but no individual member of parliament can promise place effectually. he may not be able to give the places. his party may come in, but he will be powerless. in the united states party intensity is aggravated by concentrating an overwhelming importance on a single contest, and the efficiency of promised offices as a means of corruption is augmented, because the victor can give what he likes to whom he likes. nor is this the only defect of a presidential government in reference to the choice of officers. the president has the principal anomaly of a parliamentary government without having its corrective. at each change of party the president distributes (as here) the principal offices to his principal supporters. but he has an opportunity for singular favouritism; the minister lurks in the office; he need do nothing in public; he need not show for years whether he is a fool or wise. the nation can tell what a parliamentary member is by the open test of parliament; but no one, save from actual contact, or by rare position, can tell anything certain of a presidential minister. the case of a minister under an hereditary form of government is yet worse. the hereditary king may be weak; may be under the government of women; may appoint a minister from childish motives; may remove one from absurd whims. there is no security that an hereditary king will be competent to choose a good chief minister, and thousands of such kings have chosen millions of bad ministers. by the dictatorial, or revolutionary, sort of government, i mean that very important sort in which the sovereign--the absolute sovereign--is selected by insurrection. in theory, one would certainly have hoped that by this time such a crude elective machinery would have been reduced to a secondary part. but, in fact, the greatest nation (or, perhaps, after the exploits of bismarck, i should say one of the two greatest nations of the continent) vacillates between the revolutionary and the parliamentary, and now is governed under the revolutionary form. france elects its ruler in the streets of paris. flatterers may suggest that the democratic empire will become hereditary, but close observers know that it cannot. the idea of the government is that the emperor represents the people in capacity, in judgment, in instinct. but no family through generations can have sufficient, or half sufficient, mind to do so. the representative despot must be chosen by fighting, as napoleon i. and napoleon iii. were chosen. and such a government is likely, whatever be its other defects, to have a far better and abler administration than any other government. the head of the government must be a man of the most consummate ability. he cannot keep his place, he can hardly keep his life, unless he is. he is sure to be active, because he knows that his power, and perhaps his head, may be lost if he be negligent. the whole frame of his state is strained to keep down revolution. the most difficult of all political problems is to be solved--the people are to be at once thoroughly restrained and thoroughly pleased. the executive must be like a steel shirt of the middle ages--extremely hard and extremely flexible. it must give way to attractive novelties which do not hurt; it must resist such as are dangerous; it must maintain old things which are good and fitting; it must alter such as cramp and give pain. the dictator dare not appoint a bad minister if he would. i admit that such a despot is a better selector of administrators than a parliament; that he will know how to mix fresh minds and used minds better; that he is under a stronger motive to combine them well; that here is to be seen the best of all choosers with the keenest motives to choose. but i need not prove in england that the revolutionary selection of rulers obtains administrative efficiency at a price altogether transcending its value; that it shocks credit by its catastrophes; that for intervals it does not protect property or life; that it maintains an undergrowth of fear through all prosperity; that it may take years to find the true capable despot; that the interregna of the incapable are full of all evil; that the fit despot may die as soon as found; that the good administration and all else hang by the thread of his life. but if, with the exception of this terrible revolutionary government, a parliamentary government upon principle surpasses all its competitors in administrative efficiency, why is it that our english government, which is beyond comparison the best of parliamentary governments, is not celebrated through the world for administrative efficiency? it is noted for many things, why is it not noted for that? why, according to popular belief is it rather characterised by the very contrary? one great reason of the diffused impression is, that the english government attempts so much. our military system is that which is most attacked. objectors say we spend much more on our army than the great military monarchies, and yet with an inferior result. but, then, what we attempt is incalculably more difficult. the continental monarchies have only to defend compact european territories by the many soldiers whom they force to fight; the english try to defend without any compulsion--only by such soldiers as they persuade to serve--territories far surpassing all europe in magnitude, and situated all over the habitable globe. our horse guards and war office may not be at all perfect--i believe they are not: but if they had sufficient recruits selected by force of law--if they had, as in prussia, the absolute command of each man's time for a few years, and the right to call him out afterwards when they liked, we should be much surprised at the sudden ease and quickness with which they did things. i have no doubt too that any accomplished soldier of the continent would reject as impossible what we after a fashion effect. he would not attempt to defend a vast scattered empire, with many islands, a long frontier line in every continent, and a very tempting bit of plunder at the centre, by mere volunteer recruits, who mostly come from the worst class of the people--whom the great duke called the "scum of the earth"--who come in uncertain numbers year by year--who by some political accident may not come in adequate numbers, or at all, in the year we need them most. our war office attempts what foreign war offices (perhaps rightly) would not try at; their officers have means of incalculable force denied to ours, though ours is set to harder tasks. again, the english navy undertakes to defend a line of coast and a set of dependencies far surpassing those of any continental power. and the extent of our operations is a singular difficulty just now. it requires us to keep a large stock of ships and arms. but on the other hand, there are most important reasons why we should not keep much. the naval art and the military art are both in a state of transition; the last discovery of to-day is out of date, and superseded by an antagonistic discovery to-morrow. any large accumulation of vessels or guns is sure to contain much that will be useless, unfitting, antediluvian, when it comes to be tried. there are two cries against the admiralty which go on side by side: one says, "we have not ships enough, no 'relief' ships, no navy, to tell the truth"; the other cry says, "we have all the wrong ships, all the wrong guns, and nothing but the wrong; in their foolish constructive mania the admiralty have been building when they ought to have been waiting; they have heaped a curious museum of exploded inventions, but they have given us nothing serviceable". the two cries for opposite policies go on together, and blacken our executive together, though each is a defence of the executive against the other. again, the home department in england struggles with difficulties of which abroad they have long got rid. we love independent "local authorities," little centres of outlying authority. when the metropolitan executive most wishes to act, it cannot act effectually because these lesser bodies hesitate, deliberate, or even disobey. but local independence has no necessary connection with parliamentary government. the degree of local freedom desirable in a country varies according to many circumstances, and a parliamentary government may consist with any degree of it. we certainly ought not to debit parliamentary government as a general and applicable polity with the particular vices of the guardians of the poor in england, though it is so debited every day. again, as our administration has in england this peculiar difficulty, so on the other hand foreign competing administrations have a peculiar advantage. abroad a man under government is a superior being: he is higher than the rest of the world; he is envied by almost all of it. this gives the government the easy pick of the elite of the nation. all clever people are eager to be under government, and are hardly to be satisfied elsewhere. but in england there is no such superiority, and the english have no such feeling. we do not respect a stamp-office clerk, or an exciseman's assistant. a pursy grocer considers he is much above either. our government cannot buy for minor clerks the best ability of the nation in the cheap currency of pure honour, and no government is rich enough to buy very much of it in money. our mercantile opportunities allure away the most ambitious minds. the foreign bureaux are filled with a selection from the ablest men of the nation, but only a very few of the best men approach the english offices. but these are neither the only nor even the principal reasons why our public administration is not so good as, according to principle and to the unimpeded effects of parliamentary government, it should be. there are two great causes at work, which in their consequences run out into many details, but which in their fundamental nature may be briefly described. the first of these causes is our ignorance. no polity can get out of a nation more than there is in the nation. a free government is essentially a government by persuasion; and as are the people to be persuaded, and as are the persuaders, so will that government be. on many parts of our administration the effect of our extreme ignorance is at once plain. the foreign policy of england has for many years been, according to the judgment now in vogue, inconsequent, fruitless, casual; aiming at no distinct pre-imagined end, based on no steadily pre-conceived principle. i have not room to discuss with how much or how little abatement this decisive censure should be accepted. however, i entirely concede that our recent foreign policy has been open to very grave and serious blame. but would it not have been a miracle if the english people, directing their own policy, and being what they are, had directed a good policy? are they not above all nations divided from the rest of the world, insular both in situation and in mind, both for good and for evil? are they not out of the current of common european causes and affairs? are they not a race contemptuous of others? are they not a race with no special education or culture as to the modern world, and too often despising such culture? who could expect such a people to comprehend the new and strange events of foreign places? so far from wondering that the english parliament has been inefficient in foreign policy, i think it is wonderful, and another sign of the rude, vague imagination that is at the bottom of our people, that we have done so well as we have. again, the very conception of the english constitution, as distinguished from a purely parliamentary constitution is, that it contains "dignified" parts--parts, that is, retained, not for intrinsic use, but from their imaginative attraction upon an uncultured and rude population. all such elements tend to diminish simple efficiency. they are like the additional and solely-ornamental wheels introduced into the clocks of the middle ages, which tell the then age of the moon or the supreme constellation; which make little men or birds come out and in theatrically. all such ornamental work is a source of friction and error; it prevents the time being marked accurately; each new wheel is a new source of imperfection. so if authority is given to a person, not on account of his working fitness, but on account of his imaginative efficiency, he will commonly impair good administration. he may do something better than good work of detail, but will spoil good work of detail. the english aristocracy is often of this sort. it has an influence over the people of vast value still, and of infinite value formerly. but no man would select the cadets of an aristocratic house as desirable administrators. they have peculiar disadvantages in the acquisition of business knowledge, business training, and business habits, and they have no peculiar advantages. our middle class, too, is very unfit to give us the administrators we ought to have. i cannot now discuss whether all that is said against our education is well grounded; it is called by an excellent judge "pretentious, insufficient, and unsound". but i will say that it does not fit men to be men of business as it ought to fit them. till lately the very simple attainments and habits necessary for a banker's clerk had a scarcity-value. the sort of education which fits a man for the higher posts of practical life is still very rare; there is not even a good agreement as to what it is. our public officers cannot be as good as the corresponding officers of some foreign nations till our business education is as good as theirs.[ ] [ ] i am happy to state that this evil is much diminishing. the improvement of school education of the middle class in the last twenty-five years is marvellous. but strong as is our ignorance in deteriorating our administration, another cause is stronger still. there are but two foreign administrations probably better than ours, and both these have had something which we have not had. theirs in both cases were arranged by a man of genius, after careful forethought, and upon a special design. napoleon built upon a clear stage which the french revolution bequeathed him. the originality once ascribed to his edifice was indeed untrue; tocqueville and lavergne have shown that he did but run up a conspicuous structure in imitation of a latent one before concealed by the mediaeval complexities of the old regime. but what we are concerned with now is, not napoleon's originality, but his work. he undoubtedly settled the administration of france upon an effective, consistent, and enduring system; the succeeding governments have but worked the mechanism they inherited from him. frederick the great did the same in the new monarchy of prussia. both the french system and the prussian are new machines, made in civilised times to do their appropriate work. the english offices have never, since they were made, been arranged with any reference to one another; or rather they were never made, but grew as each could. the sort of free trade which prevailed in public institutions in the english middle ages is very curious. our three courts of law--the queen's bench, the common pleas, and the exchequer--for the sake of the fees extended an originally contracted sphere into the entire sphere of litigation. boni judicis est ampliare jursdictionem, went the old saying; or, in english, "it is the mark of a good judge to augment the fees of his court," his own income, and the income of his subordinates. the central administration, the treasury, never asked any account of the moneys the courts thus received; so long as it was not asked to pay anything, it was satisfied. only last year one of the many remnants of this system cropped up, to the wonder of the public. a clerk in the patent office stole some fees, and naturally the men of the nineteenth century thought our principal finance minister, the chancellor of the exchequer, would be, as in france, responsible for it. but the english law was different somehow. the patent office was under the lord chancellor, and the court of chancery is one of the multitude of our institutions which owe their existence to free competition, and so it was the lord chancellor's business to look after the fees, which of course, as an occupied judge, he could not. a certain act of parliament did indeed require that the fees of the patent office should be paid into the "exchequer"; and, again, the "chancellor of the exchequer" was thought to be responsible in the matter, but only by those who did not know. according to our system the chancellor of the exchequer is the enemy of the exchequer; a whole series of enactments try to protect it from him. until a few months ago there was a very lucrative sinecure called the "comptrollership of the exchequer," designed to guard the exchequer against its chancellor; and the last holder, lord monteagle, used to say he was the pivot of the english constitution. i have not room to explain what he meant, and it is not needful; what is to the purpose is that, by an inherited series of historical complexities, a defaulting clerk in an office of no litigation was not under natural authority, the finance minister, but under a far-away judge who had never heard of him. the whole office of the lord chancellor is a heap of anomalies. he is a judge, and it is contrary to obvious principle that any part of administration should be entrusted to a judge; it is of very grave moment that the administration of justice should be kept clear of any sinister temptations. yet the lord chancellor, our chief judge, sits in the cabinet, and makes party speeches in the lords. lord lyndhurst was a principal tory politician, and yet he presided in the o'connell case. lord westbury was in chronic wrangle with the bishops, but he gave judgment upon "essays and reviews". in truth, the lord chancellor became a cabinet minister, because, being near the person of the sovereign, he was high in court precedence, and not upon a political theory wrong or right. a friend once told me that an intelligent italian asked him about the principal english officers, and that he was very puzzled to explain their duties, and especially to explain the relation of their duties to their titles. i do not remember all the cases, but i can recollect that the italian could not comprehend why the first "lord of the treasury" had as a rule nothing to do with the treasury, or why the "woods and forests" looked after the sewerage of towns. this conversation was years before the cattle plague, but i should like to have heard the reasons why the privy council office had charge of that malady. of course one could give an historical reason, but i mean an administrative reason a reason which would show, not how it came to have the duty, but why in future it should keep it. but the unsystematic and casual arrangement of our public offices is not more striking than their difference of arrangement for the one purpose they have in common. they all, being under the ultimate direction of a parliamentary official, ought to have the best means of bringing the whole of the higher concerns of the office before that official. when the fresh mind rules, the fresh mind requires to be informed. and most business being rather alike, the machinery for bringing it before the extrinsic chief ought, for the most part, to be similar: at any rate, where it is different, it ought to be different upon reason; and where it is similar, similar upon reason. yet there are almost no two offices which are exactly alike in the defined relations of the permanent official to the parliamentary chief. let us see. the army and navy are the most similar in nature, yet there is in the army a permanent outside office, called the horse guards, to which there is nothing else like. in the navy, there is a curious anomaly--a board of admiralty, also changing with every government, which is to instruct the first lord in what he does not know. the relations between the first lord and the board have not always been easily intelligible, and those between the war office and the horse guards are in extreme confusion. even now a parliamentary paper relating to them has just been presented to the house of commons, which says the fundamental and ruling document cannot be traced beyond the possession of sir george lewis, who was secretary for war three years since; and the confused details are endless, as they must be in a chronic contention of offices. at the board of trade there is only the hypothesis of a board; it has long ceased to exist. even the president and vice-president do not regularly meet for the transaction of affairs. the patent of the latter is only to transact business in the absence of the president, and if the two are not intimate, and the president chooses to act himself, the vice-president sees no papers, and does nothing. at the treasury the shadow of a board exists, but its members have no power, and are the very officials whom canning said existed to make a house, to keep a house, and to cheer the ministers. the india office has a fixed "council"; but the colonial office which rules over our other dependencies and colonies, has not, and never had, the vestige of a council. any of these varied constitutions may be right, but all of them can scarcely be right. in truth the real constitution of a permanent office to be ruled by a permanent chief has been discussed only once in england: that case was a peculiar and anomalous one, and the decision then taken was dubious. a new india office, when the east india company was abolished, had to be made. the late mr. james wilson, a consummate judge of administrative affairs, then maintained that no council ought to be appointed eo nomine, but that the true council of a cabinet minister was a certain number of highly paid, much occupied, responsible secretaries, whom the minister could consult either separately or together, as, and when, he chose. such secretaries, mr. wilson maintained, must be able, for no minister will sacrifice his own convenience, and endanger his own reputation by appointing a fool to a post so near himself, and where he can do much harm. a member of a board may easily be incompetent; if some other members and the chairmen are able, the addition of one or two stupid men will not be felt; they will receive their salaries and do nothing. but a permanent under-secretary, charged with a real control over much important business, must be able, or his superior will be blamed, and there will be "a scrape in parliament". i cannot here discuss, nor am i competent to discuss, the best mode of composing public offices, and of adjusting them to a parliamentary head. there ought to be on record skilled evidence on the subject before a person without any specific experience can to any purpose think about it. but i may observe that the plan which mr. wilson suggested is that followed in the most successful part of our administration, the "ways and means" part. when the chancellor of the exchequer prepares a budget, he requires from the responsible heads of the revenue department their estimates of the public revenue upon the preliminary hypothesis that no change is made, but that last year's taxes will continue; if, afterwards, he thinks of making an alteration, he requires a report on that too. if he has to renew exchequer bills, or operate anyhow in the city, he takes the opinion, oral or written, of the ablest and most responsible person at the national debt office, and the ablest and most responsible at the treasury. mr. gladstone, by far the greatest chancellor of the exchequer of this generation, one of the very greatest of any generation, has often gone out of his way to express his obligation to these responsible skilled advisers. the more a man knows himself, the more habituated he is to action in general, the more sure he is to take and to value responsible counsel emanating from ability and suggested by experience. that this principle brings good fruit is certain. we have, by unequivocal admission, the best budget in the world. why should not the rest of our administration be as good if we did but apply the same method to it? i leave this to stand as it was originally written since it does not profess to rest on my own knowledge, and only offers a suggestion on good authority. recent experience seems, however, to show that in all great administrative departments there ought to be some one permanent responsible head through whom the changing parliamentary chief always acts, from whom he learns everything, and to whom he communicates everything. the daily work of the exchequer is a trifle compared with that of the admiralty or the home office, and therefore a single principal head is not there so necessary. but the preponderance of evidence at present is that in all offices of very great work some one such head is essential. no. vii. its supposed checks and balances. in a former essay i devoted an elaborate discussion to the comparison of the royal and unroyal form of parliamentary government. i showed that at the formation of a ministry, and during the continuance of a ministry, a really sagacious monarch might be of rare use. i ascertained that it was a mistake to fancy that at such times a constitutional monarch had no rule and no duties. but i proved likewise that the temper, the disposition, and the faculties then needful to fit a constitutional monarch for usefulness were very rare, at least as rare as the faculties of a great absolute monarch, and that a common man in that place is apt to do at least as much harm as good--perhaps more harm. but in that essay i could not discuss fully the functions of a king at the conclusion of an administration, for then the most peculiar parts of the english government--the power to dissolve the house of commons, and the power to create new peers--come into play, and until the nature of the house of lords and the nature of the house of commons had been explained, i had no premises for an argument as to the characteristic action of the king upon them. we have since considered the functions of the two houses, and also the effects of changes of ministry on our administrative system; we are now, therefore, in a position to discuss the functions of a king at the end of an administration. i may seem over formal in this matter, but i am very formal on purpose. it appears to me that the functions of our executive in dissolving the commons and augmenting the peers are among the most important, and the least appreciated, parts of our whole government, and that hundreds of errors have been made in copying the english constitution from not comprehending them. hobbes told us long ago, and everybody now understands, that there must be a supreme authority, a conclusive power, in every state on every point somewhere. the idea of government involves it--when that idea is properly understood. but there are two classes of governments. in one the supreme determining power is upon all points the same: in the other, that ultimate power is different upon different points--now resides in one part of the constitution and now in another. the americans thought that they were imitating the english in making their constitution upon the last principle--in having one ultimate authority for one sort of matter, and another for another sort. but in truth the english constitution is the type of the opposite species; it has only one authority for all sorts of matters. to gain a living conception of the difference let us see what the americans did. first, they altogether retained what, in part, they could not help, the sovereignty of the separate states. a fundamental article of the federal constitution says that the powers not "delegated" to the central government are "reserved to the states respectively". and the whole recent history of the union--perhaps all its history--has been more determined by that enactment than by any other single cause. the sovereignty of the principal matters of state has rested not with the highest government, but with the subordinate government. the federal government could not touch slavery--the "domestic institution" which divided the union into two halves, unlike one another in morals, politics, and social condition, and at last set them to fight. this determining political fact was not in the jurisdiction of the highest government in the country, where you might expect its highest wisdom, nor in the central government, where you might look for impartiality, but in local governments, where petty interests were sure to be considered, and where only inferior abilities were likely to be employed. the capital fact was reserved for the minor jurisdictions. again, there has been only one matter comparable to slavery in the united states, and that has been vitally affected by the state governments also. their ultra-democracy is not a result of federal legislation, but of state legislation. the federal constitution deputed one of the main items of its structure to the subordinate governments. one of its clauses provides that the suffrages for the federal house of representatives shall be, in each state, the same as for the most numerous branch of the legislature of that state; and as each state fixes the suffrage for its own legislatures, the states altogether fix the suffrage for the federal lower chamber. by another clause of the federal constitution the states fix the electoral qualification for voting at a presidential election. the primary element in a free government--the determination how many people shall have a share in it--in america depends not on the government but on certain subordinate local, and sometimes, as in the south now, hostile bodies. doubtless the framers of the constitution had not much choice in the matter. the wisest of them were anxious to get as much power for the central government, and to leave as little to the local governments as they could. but a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. all federal government is, in truth, a case in which what i have called the dignified elements of government do not coincide with the serviceable elements. at the beginning of every league the separate states are the old governments which attract and keep the love and loyalty of the people; the federal government is a useful thing, but new and unattractive. it must concede much to the state governments, for it is indebted to them for motive power: they are the governments which the people voluntarily obey. when the state governments are not thus loved, they vanish as the little italian and the little german potentates vanished; no federation is needed; a single central government rules all. but the division of the sovereign authority in the american constitution is far more complex than this. the part of that authority left to the federal government is itself divided and subdivided. the greatest instance is the most obvious. the congress rules the law, but the president rules the administration. one means of unity the constitution does give: the president can veto laws he does not like. but when two-thirds of both houses are unanimous (as has lately happened), they can overrule the president and make the laws without him; so here there are three separate repositories of the legislative power in different cases: first, congress and the president when they agree; next, the president when he effectually exerts his power; then the requisite two-thirds of congress when they overrule the president. and the president need not be over-active in carrying out a law he does not approve of. he may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. mr. johnson does not carry out the freedman's bureau bill as mr. lincoln, who approved of it, would have carried it out. the american constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases. but the administrative power itself is not left thus simple and undivided. one most important part of administration is international policy, and the supreme authority here is not in the president, still less in the house of representatives, but in the senate. the president can only make treaties, "provided two-thirds of senators present" concur. the sovereignty therefore for the greatest international questions is in a different part of the state altogether from any common administrative or legislative question. it is put in a place by itself. again, the congress declares war, but they would find it very difficult, according to the recent construction of their laws, to compel the president to make a peace. the authors of the constitution doubtless intended that congress should be able to control the american executive as our parliament controls ours. they placed the granting of supplies in the house of representatives exclusively. but they forgot to look after "paper money"; and now it has been held that the president has power to emit such money without consulting congress at all. the first part of the late war was so carried on by mr. lincoln; he relied not on the grants of congress, but on the prerogative of emission. it sounds a joke, but it is true nevertheless, that this power to issue greenbacks is decided to belong to the president as commander-in-chief of the army; it is part of what was called the "war power". in truth money was wanted in the late war, and the administration got it in the readiest way; and the nation, glad not to be more taxed, wholly approved of it. but the fact remains that the president has now, by precedent and decision, a mighty power to continue a war without the consent of congress, and perhaps against its wish. against the united will of the american people a president would of course be impotent; such is the genius of the place and nation that he would never think of it. but when the nation was (as of late) divided into two parties, one cleaving to the president, the other to the congress, the now unquestionable power of the president to issue paper-money may give him the power to continue the war though parliament (as we should speak) may enjoin the war to cease. and lastly, the whole region of the very highest questions is withdrawn from the ordinary authorities of the state, and reserved for special authorities. the "constitution" cannot be altered by any authorities within the constitution, but only by authorities without it. every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of states or legislatures. the consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. the practical arguments and the legal disquisitions in america are often like those of trustees carrying out a misdrawn will--the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament. these instances (and others might be added) prove, as history proves too, what was the principal thought of the american constitution-makers. they shrank from placing sovereign power anywhere. they feared that it would generate tyranny; george iii. had been a tyrant to them, and come what might, they would not make a george iii. accredited theories said that the english constitution divided the sovereign authority, and in imitation the americans split up theirs. the result is seen now. at the critical moment of their history there is no ready, deciding power. the south, after a great rebellion, lies at the feet of its conquerors: its conquerors have to settle what to do with it.[ ] they must decide the conditions upon which the secessionists shall again become fellow citizens, shall again vote, again be represented, again perhaps govern. the most difficult of problems is how to change late foes into free friends. the safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt--the cost of their defence--has been repudiated. a race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. the slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the "mean whites," whose labour he depreciates, and who regard him with a loathing hatred. the greatest moral duty ever set before a government, and the most fearful political problem ever set before a government, are now set before the american. but there is no decision, and no possibility of a decision. the president wants one course, and has power to prevent any other; the congress wants another course, and has power to prevent any other. the splitting of sovereignty into many parts amounts to there being no sovereign. [ ] this was written just after the close of the civil war, but i do not know that the great problem stated in it has as yet been adequately solved. the americans of thought they were copying the english constitution, but they were contriving a contrast to it. just as the american is the type of composite governments, in which the supreme power is divided between many bodies and functionaries, so the english is the type of simple constitutions, in which the ultimate power upon all questions is in the hands of the same persons. the ultimate authority in the english constitution is a newly-elected house of commons. no matter whether the question upon which it decides be administrative or legislative; no matter whether it concerns high matters of the essential constitution or small matters of daily detail; no matter whether it be a question of making a war or continuing a war; no matter whether it be the imposing a tax or the issuing a paper currency; no matter whether it be a question relating to india, or ireland, or london--a new house of commons can despotically and finally resolve. the house of commons may, as was explained, assent in minor matters to the revision of the house of lords, and submit in matters about which it cares little to the suspensive veto of the house of lords; but when sure of the popular assent, and when freshly elected, it is absolute, it can rule as it likes and decide as it likes. and it can take the best security that it does not decide in vain. it can ensure that its decrees shall be executed, for it, and it alone, appoints the executive; it can inflict the most severe of all penalties on neglect, for it can remove the executive. it can choose, to effect its wishes, those who wish the same; and so its will is sure to be done. a stipulated majority of both houses of the american congress can overrule by stated enactment their executive; but the popular branch of our legislature can make and unmake ours. the english constitution, in a word, is framed on the principle of choosing a single sovereign authority, and making it good; the american, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority. the americans now extol their institutions, and so defraud themselves of their due praise. but if they had not a genius for politics; if they had not a moderation in action singularly curious where superficial speech is so violent; if they had not a regard for law, such as no great people have yet evinced, and infinitely surpassing ours,--the multiplicity of authorities in the american constitution would long ago have brought it to a bad end. sensible shareholders, i have heard a shrewd attorney say, can work any deed of settlement; and so the men of massachusetts could, i believe, work any constitution.[ ] but political philosophy must analyse political history; it must distinguish what is due to the excellence of the people, and what to the excellence of the laws; it must carefully calculate the exact effect of each part of the constitution, though thus it may destroy many an idol of the multitude, and detect the secret of utility where but few imagined it to lie. [ ] of course i am not speaking here of the south and south-east, as they now are. how any free government is to exist in societies where so many bad elements are so much perturbed, i cannot imagine. how important singleness and unity are in political action no one, i imagine, can doubt. we may distinguish and define its parts; but policy is a unit and a whole. it acts by laws--by administrators; it requires now one, now the other; unless it can easily move both it will be impeded soon; unless it has an absolute command of both its work will be imperfect. the interlaced character of human affairs requires a single determining energy; a distinct force for each artificial compartment will make but a motley patchwork, if it live long enough to make anything. the excellence of the british constitution is that it has achieved this unity; that in it the sovereign power is single, possible, and good. the success is primarily due to the peculiar provision of the english constitution, which places the choice of the executive in the "people's house"; but it could not have been thoroughly achieved except for two parts, which i venture to call the "safety-valve" of the constitution, and the "regulator". the safety-valve is the peculiar provision of the constitution, of which i spoke at great length in my essay on the house of lords. the head of the executive can overcome the resistance of the second chamber by choosing new members of that chamber; if he do not find a majority, he can make a majority. this is a safety-valve of the truest kind. it enables the popular will--the will of which the executive is the exponent, the will of which it is the appointee--to carry out within the constitution desires and conceptions which one branch of the constitution dislikes and resists. it lets forth a dangerous accumulation of inhibited power, which might sweep this constitution before it, as like accumulations have often swept away like constitutions. the regulator, as i venture to call it, of our single sovereignty is the power of dissolving the otherwise sovereign chamber confided to the chief executive. the defects of the popular branch of a legislature as a sovereign have been expounded at length in a previous essay. briefly, they may be summed up in three accusations. first. caprice is the commonest and most formidable vice of a choosing chamber. wherever in our colonies parliamentary government is unsuccessful, or is alleged to be unsuccessful, this is the vice which first impairs it. the assembly cannot be induced to maintain any administration; it shifts its selection now from one minister to another minister, and in consequence there is no government at all. secondly. the very remedy for such caprice entails another evil. the only mode by which a cohesive majority and a lasting administration can be upheld in a parliamentary government, is party organisation; but that organisation itself tends to aggravate party violence and party animosity. it is, in substance, subjecting the whole nation to the rule of a section of the nation, selected because of its speciality. parliamentary government is, in its essence, a sectarian government, and is possible only when sects are cohesive. thirdly. a parliament, like every other sort of sovereign, has peculiar feelings, peculiar prejudices, peculiar interests; and it may pursue these in opposition to the desires, and even in opposition to the well-being of the nation. it has its selfishness as well as its caprice and its parties. the mode in which the regulating wheel of our constitution produces its effect is plain. it does not impair the authority of parliament as a species, but it impairs the power of the individual parliament. it enables a particular person outside parliament to say, "you members of parliament are not doing your duty. you are gratifying caprice at the cost of the nation. you are indulging party spirit at the cost of the nation. you are helping yourself at the cost of the nation. i will see whether the nation approves what you are doing or not; i will appeal from parliament no. to parliament no. ." by far the best way to appreciate this peculiar provision of our constitution is to trace it in action--to see, as we saw before of the other powers of english royalty, how far it is dependent on the existence of an hereditary king, and how far it can be exercised by a premier whom parliament elects. when we examine the nature of the particular person required to exercise the power, a vivid idea of that power is itself brought home to us. first. as to the caprice of parliament in the choice of a premier, who is the best person to check it? clearly the premier himself. he is the person most interested in maintaining his administration, and therefore the most likely person to use efficiently and dexterously the power by which it is to be maintained. the intervention of an extrinsic king occasions a difficulty. a capricious parliament may always hope that his caprice may coincide with theirs. in the days when george iii. assailed his governments, the premier was habitually deprived of his due authority. intrigues were encouraged because it was always dubious whether the king-hated minister would be permitted to appeal from the intriguers, and always a chance that the conspiring monarch might appoint one of the conspirators to be premier in his room. the caprice of parliament is better checked when the faculty of dissolution is entrusted to its appointee, than when it is set apart in an outlying and an alien authority. but, on the contrary, the party zeal and the self-seeking of parliament are best checked by an authority which has no connection with parliament or dependence upon it--supposing that such authority is morally and intellectually equal to the performance of the entrusted function. the prime minister obviously being the nominee of a party majority is likely to share its feeling, and is sure to be obliged to say that he shares it. the actual contact with affairs is indeed likely to purify him from many prejudices, to tame him of many fanaticisms, to beat out of him many errors. the present conservative government contains more than one member who regards his party as intellectually benighted; who either never speaks their peculiar dialect, or who speaks it condescendingly, and with an "aside"; who respects their accumulated prejudices as the "potential energies" on which he subsists, but who despises them while he lives by them. years ago mr. disraeli called sir robert peel's ministry--the last conservative ministry that had real power--"an organised hypocrisy," so much did the ideas of its "head" differ from the sensations of its "tail". probably he now comprehends--if he did not always--that the air of downing street brings certain ideas to those who live there, and that the hard, compact prejudices of opposition are soon melted and mitigated in the great gulf stream of affairs. lord palmerston, too, was a typical example of a leader lulling, rather than arousing, assuaging rather than acerbating the minds of his followers. but though the composing effect of close difficulties will commonly make a premier cease to be an immoderate partisan, yet a partisan to some extent he must be, and a violent one he may be; and in that case he is not a good person to check the party. when the leading sect (so to speak) in parliament is doing what the nation do not like, an instant appeal ought to be registered and parliament ought to be dissolved. but a zealot of a premier will not appeal; he will follow his formulae; he will believe he is doing good service when, perhaps, he is but pushing to unpopular consequences, the narrow maxims of an inchoate theory. at such a minute a constitutional king--such as leopold the first was, and as prince albert might have been--is invaluable; he can and will prevent parliament from hurting the nation. again, too, on the selfishness of parliament an extrinsic check is clearly more efficient than an intrinsic. a premier who is made by parliament may share the bad impulses of those who chose him; or, at any rate, he may have made "capital" out of them--he may have seemed to share them. the self-interests, the jobbing propensities of the assembly are sure indeed to be of very secondary interest to him. what he will care most for is the permanence, is the interest--whether corrupt or uncorrupt--of his own ministry. he will be disinclined to anything coarsely unpopular. in the order of nature, a new assembly must come before long, and he will be indisposed to shock the feelings of the electors from whom that assembly must emanate. but though the interest of the minister is inconsistent with appalling jobbery, he will be inclined to mitigated jobbery. he will temporise; he will try to give a seemly dress to unseemly matters: to do as much harm as will content the assembly, and yet not so much harm as will offend the nation. he will not shrink from becoming a particeps criminis; he will but endeavour to dilute the crime. the intervention of an extrinsic, impartial, and capable authority--if such can be found--will undoubtedly restrain the covetousness as well as the factiousness of a choosing assembly. but can such a head be found? in one case i think it has been found. our colonial governors are precisely dei ex machina. they are always intelligent, for they have to live by a different trade; they are nearly sure to be impartial, for they come from the ends of the earth; they are sure not to participate in the selfish desires of any colonial class or body, for long before those desires can have attained fruition they will have passed to the other side of the world, be busy with other faces and other minds, be almost out of hearing what happens in a region they have half forgotten. a colonial governor is a super-parliamentary authority, animated by a wisdom which is probably in quantity considerable, and is different from that of the local parliament, even if not above it. but even in this case the advantage of this extrinsic authority is purchased at a heavy price--a price which must not be made light of, because it is often worth paying. a colonial governor is a ruler who has no permanent interest in the colony he governs; who perhaps had to look for it in the map when he was sent thither; who takes years before he really understands its parties and its controversies; who, though without prejudice himself, is apt to be a slave to the prejudices of local people near him; who inevitably, and almost laudably, governs not in the interest of the colony, which he may mistake, but in his own interest, which he sees and is sure of. the first desire of a colonial governor is not to get into a "scrape," not to do anything which may give trouble to his superiors--the colonial office--at home, which may cause an untimely and dubious recall, which may hurt his after career. he is sure to leave upon the colony the feeling that they have a ruler who only half knows them, and does not so much as half care for them. we hardly appreciate this common feeling in our colonies, because we appoint their sovereign; but we should understand it in an instant if, by a political metamorphosis, the choice were turned the other way--if they appointed our sovereign. we should then say at once, "how is it possible a man from new zealand can understand england? how is it possible, that a man longing to get back to the antipodes can care for england? how can we trust one who lives by the fluctuating favour of a distant authority? how can we heartily obey one who is but a foreigner with the accident of an identical language?" i dwell on the evils which impair the advantage of colonial governorship because that is the most favoured case of super-parliamentary royalty, and because from looking at it we can bring freshly home to our minds what the real difficulties of that institution are. we are so familiar with it that we do not understand it. we are like people who have known a man all their lives, and yet are quite surprised when he displays some obvious characteristic which casual observers have detected at a glance. i have known a man who did not know what colour his sister's eyes were, though he had seen her every day for twenty years; or rather, he did not know because he had so seen her: so true is the philosophical maxim that we neglect the constant element in our thoughts, though it is probably the most important, and attend almost only to the varying elements--the differentiating elements (as men now speak)--though they are apt to be less potent. but when we perceive by the roundabout example of a colonial governor how difficult the task of a constitutional king is in the exercise of the function of dissolving parliament, we at once see how unlikely it is that an hereditary monarch will be possessed of the requisite faculties. an hereditary king is but an ordinary person, upon an average, at best; he is nearly sure to be badly educated for business; he is very little likely to have a taste for business; he is solicited from youth by every temptation to pleasure; he probably passed the whole of his youth in the vicious situation of the heir-apparent, who can do nothing because he has no appointed work, and who will be considered almost to outstep his function if he undertake optional work. for the most part, a constitutional king is a damaged common man; not forced to business by necessity as a despot often is, but yet spoiled for business by most of the temptations which spoil a despot. history, too, seems to show that hereditary royal families gather from the repeated influence of their corrupting situation some dark taint in the blood, some transmitted and growing poison which hurts their judgments, darkens all their sorrow, and is a cloud on half their pleasure. it has been said, not truly, but with a possible approximation to truth, "that in every hereditary monarch was insane". is it likely that this sort of monarchs will be able to catch the exact moment when, in opposition to the wishes of a triumphant ministry, they ought to dissolve parliament? to do so with efficiency they must be able to perceive that the parliament is wrong, and that the nation knows it is wrong. now to know that parliament is wrong, a man must be, if not a great statesman, yet a considerable statesman--a statesman of some sort. he must have great natural vigour, for no less will comprehend the hard principles of national policy. he must have incessant industry, for no less will keep him abreast with the involved detail to which those principles relate, and the miscellaneous occasions to which they must be applied. a man made common by nature, and made worse by life, is not likely to have either; he is nearly sure not to be both clever and industrious. and a monarch in the recesses of a palace, listening to a charmed flattery unbiassed by the miscellaneous world, who has always been hedged in by rank, is likely to be but a poor judge of public opinion. he may have an inborn tact for finding it out; but his life will never teach it him, and will probably enfeeble it in him. but there is a still worse case, a case which the life of george iii.--which is a sort of museum of the defects of a constitutional king--suggests at once. the parliament may be wiser than the people, and yet the king may be of the same mind with the people. during the last years of the american war, the premier, lord north, upon whom the first responsibility rested, was averse to continuing it, and knew it could not succeed. parliament was much of the same mind; if lord north had been able to come down to parliament with a peace in his hand, parliament would probably have rejoiced, and the nation under the guidance of parliament, though saddened by its losses, probably would have been satisfied. the opinion of that day was more like the american opinion of the present day than like our present opinion. it was much slower in its formation than our opinion now, and obeyed much more easily sudden impulses from the central administration. if lord north had been able to throw the undivided energy and the undistracted authority of the executive government into the excellent work of making a peace and carrying a peace, years of bloodshed might have been spared, and an entail of enmity cut off that has not yet run out. but there was a power behind the prime minister; george iii. was madly eager to continue the war, and the nation--not seeing how hopeless the strife was, not comprehending the lasting antipathy which their obstinacy was creating--ignorant, dull and helpless--was ready to go on too. even if lord north had wished to make peace, and had persuaded parliament accordingly, all his work would have been useless; a superior power could and would have appealed from a wise and pacific parliament to a sullen and warlike nation. the check which our constitution finds for the special vices of our parliament was misused to curb its wisdom. the more we study the nature of cabinet government, the more we shall shrink from exposing at a vital instant its delicate machinery to a blow from a casual, incompetent, and perhaps semi-insane outsider. the preponderant probability is that on a great occasion the premier and parliament will really be wiser than the king. the premier is sure to be able, and is sure to be most anxious to decide well; if he fail to decide, he loses his place, though through all blunders the king keeps his; the judgment of the man naturally very discerning is sharpened by a heavy penalty, from which the judgment of the man by nature much less intelligent is exempt. parliament, too, is for the most part a sound, careful and practical body of men. principle shows that the power of dismissing a government with which parliament is satisfied, and of dissolving that parliament upon an appeal to the people, is not a power which a common hereditary monarch will in the long run be able beneficially to exercise. accordingly this power has almost, if not quite, dropped out of the reality of our constitution. nothing, perhaps, would more surprise the english people than if the queen by a coup d'etat and on a sudden destroyed a ministry firm in the allegiance and secure of a majority in parliament. that power, indisputably, in theory, belongs to her; but it has passed so far away from the minds of men that it would terrify them, if she used it, like a volcanic eruption from primrose hill. the last analogy to it is not one to be coveted as a precedent. in william iv. dismissed an administration which, though disorganised by the loss of its leader in the commons, was an existing government, had a premier in the lords ready to go on, and a leader in the commons willing to begin. the king fancied that public opinion was leaving the whigs and going over to the tories, and he thought he should accelerate the transition by ejecting the former. but the event showed that he misjudged. his perception indeed was right; the english people were wavering in their allegiance to the whigs, who had no leader that touched the popular heart, none in whom liberalism could personify itself and become a passion--who besides were a body long used to opposition, and therefore making blunders in office--who were borne to power by a popular impulse which they only half comprehended, and perhaps less than half shared. but the king's policy was wrong; he impeded the reaction instead of aiding it. he forced on a premature tory government, which was as unsuccessful as all wise people perceived that it must be. the popular distaste to the whigs was as yet but incipient, inefficient; and the intervention of the crown was advantageous to them, because it looked inconsistent with the liberties of the people. and in so far as william iv. was right in detecting an incipient change of opinion, he did but detect an erroneous change. what was desirable was the prolongation of liberal rule. the commencing dissatisfaction did but relate to the personal demerits of the whig leaders, and other temporary adjuncts of free principles, and not to those principles intrinsically. so that the last precedent for a royal onslaught on a ministry ended thus:--in opposing the right principles, in aiding the wrong principles, in hurting the party it was meant to help. after such a warning, it is likely that our monarchs will pursue the policy which a long course of quiet precedent at present directs--they will leave a ministry trusted by parliament to the judgment of parliament. indeed, the dangers arising from a party spirit in parliament exceeding that of the nation, and of a selfishness in parliament contradicting the true interest of the nation, are not great dangers in a country where the mind of the nation is steadily political, and where its control over its representatives is constant. a steady opposition to a formed public opinion is hardly possible in our house of commons, so incessant is the national attention to politics, and so keen the fear in the mind of each member that he may lose his valued seat. these dangers belong to early and scattered communities, where there are no interesting political questions, where the distances are great, where no vigilant opinion passes judgment on parliamentary excesses, where few care to have seats in the chamber, and where many of those few are from their characters and their antecedents better not there than there. the one great vice of parliamentary government in an adult political nation, is the caprice of parliament in the choice of a ministry. a nation can hardly control it here; and it is not good that, except within wide limits, it should control it. the parliamentary judgment of the merits or demerits of an administration very generally depends on matters which the parliament, being close at hand, distinctly sees, and which the distant nation does not see. but where personality enters, capriciousness begins. it is easy to imagine a house of commons which is discontented with all statesmen, which is contented with none, which is made up of little parties, which votes in small knots, which will adhere steadily to no leader, which gives every leader a chance and a hope. such parliaments require the imminent check of possible dissolution; but that check is (as has been shown) better in the premier than in the sovereign; and by the late practice of our constitution, its use is yearly ebbing from the sovereign, and yearly centring in the premier. the queen can hardly now refuse a defeated minister the chance of a dissolution, any more than she can dissolve in the time of an undefeated one, and without his consent. we shall find the case much the same with the safety-valve, as i have called it, of our constitution. a good, capable, hereditary monarch would exercise it better than a premier, but a premier could manage it well enough; and a monarch capable of doing better will be born only once in a century, whereas monarchs likely to do worse will be born every day. there are two modes in which the power of our executive to create peers--to nominate, that is, additional members of our upper and revising chamber--now acts: one constant, habitual, though not adequately noticed by the popular mind as it goes on; and the other possible and terrific, scarcely ever really exercised, but always by its reserved magic maintaining a great and a restraining influence. the crown creates peers, a few year by year, and thus modifies continually the characteristic feeling of the house of lords. i have heard people say, who ought to know, that the english peerage (the only one upon which unhappily the power of new creation now acts) is now more whig than tory. thirty years ago the majority was indisputably the other way. owing to very curious circumstances english parties have not alternated in power, as a good deal of speculation predicts they would, and a good deal of current language assumes they have. the whig party were in office some seventy years (with very small breaks) from the death of queen anne to the coalition between lord north and mr. fox; then the tories (with only such breaks), were in power for nearly fifty years, till ; and since, the whig party has always, with very trifling intervals, been predominant. consequently, each continuously-governing party has had the means of modifying the upper house to suit its views. the profuse tory creations of half a century had made the house of lords bigotedly tory before the first reform act, but it is wonderfully mitigated now. the irish peers and scotch peers--being nominated by an almost unaltered constituency, and representing the feelings of the majority of that constituency only (no minority having any voice)--present an unchangeable tory element. but the element in which change is permitted has been changed. whether the english peerage be or be not predominantly now tory, it is certainly not tory after the fashion of the toryism of . the whig additions have indeed sprung from a class commonly rather adjoining upon toryism, than much inclining to radicalism. it is not from men of large wealth that a very great impetus to organic change should be expected. the additions to the peers have matched nicely enough with the old peers, and therefore they have effected more easily a greater and more permeating modification. the addition of a contrasting mass would have excited the old leaven, but the delicate infusion of ingredients similar in genus, though different in species, has modified the new compound without irritating the old original. this ordinary and common use of the peer-creating power is always in the hands of the premier, and depends for its characteristic use on being there. he, as the head of the predominant party, is the proper person to modify gradually the permanent chamber which, perhaps, was at starting hostile to him; and, at any rate, can be best harmonised with the public opinion he represents by the additions he makes. hardly any contrived constitution possesses a machinery for modifying its secondary house so delicate, so flexible, and so constant. if the power of creating life peers had been added, the mitigating influence of the responsible executive upon the house of lords would have been as good as such a thing can be. the catastrophic creation of peers for the purpose of swamping the upper house is utterly different. if an able and impartial exterior king is at hand, this power is best in that king. it is a power only to be used on great occasions, when the object is immense, and the party strife unmitigated. this is the conclusive, the swaying power of the moment, and of course, therefore, it had better be in the hands of a power both capable and impartial, than of a premier who must in some degree be a partisan. the value of a discreet, calm, wise monarch, if such should happen to be reigning at the acute crisis of a nation's destiny, is priceless. he may prevent years of tumult, save bloodshed and civil war, lay up a store of grateful fame to himself, prevent the accumulated intestine hatred of each party to its opposite. but the question comes back, will there be such a monarch just then? what is the chance of having him just then? what will be the use of the monarch whom the accidents of inheritance, such as we know them to be, must upon an average bring us just then? the answer to these questions is not satisfactory, if we take it from the little experience we have had in this rare matter. there have been but two cases at all approaching to a catastrophic creation of peers--to a creation which would suddenly change the majority of the lords--in english history. one was in queen anne's time. the majority of peers in queen anne's time were whig, and by profuse and quick creations harley's ministry changed it to a tory majority. so great was the popular effect, that in the next reign one of the most contested ministerial proposals was a proposal to take the power of indefinite peer creation from the crown, and to make the number of lords fixed, as that of the commons is fixed. but the sovereign had little to do with the matter. queen anne was one of the smallest people ever set in a great place. swift bitterly and justly said "she had not a store of amity by her for more than one friend at a time," and just then her affection was concentrated on a waiting-maid. her waiting-maid told her to make peers, and she made them. but of large thought and comprehensive statesmanship she was as destitute as mrs. masham. she supported a bad ministry by the most extreme of measures, and she did it on caprice. the case of william iv. is still more instructive. he was a very conscientious king, but at the same time an exceedingly weak king. his correspondence with lord grey on this subject fills more than half a large volume, or rather his secretary's correspondence, for he kept a very clever man to write what he thought, or at least what those about him thought. it is a strange instance of high-placed weakness and conscientious vacillation. after endless letters the king consents to make a reasonable number of peers if required to pass the second reading of the reform bill, but owing to desertion of the "waverers" from the tories, the second reading is carried without it by nine, and then the king refuses to make peers, or at least enough peers when a vital amendment is carried by lord lyndhurst, which would have destroyed, and was meant to destroy the bill. in consequence, there was a tremendous crisis and nearly a revolution. a more striking example of well-meaning imbecility is scarcely to be found in history. no one who reads it carefully will doubt that the discretionary power of making peers would have been far better in lord grey's hands than in the king's. it was the uncertainty whether the king would exercise it, and how far he would exercise it, that mainly animated the opposition. in fact, you may place power in weak hands at a revolution, but you cannot keep it in weak hands. it runs out of them into strong ones. an ordinary hereditary sovereign--a william iv., or a george iv.--is unfit to exercise the peer-creating power when most wanted. a half-insane king, like george iii., would be worse. he might use it by unaccountable impulse when not required, and refuse to use it out of sullen madness when required. the existence of a fancied check on the premier is in truth an evil, because it prevents the enforcement of a real check. it would be easy to provide by law that an extraordinary number of peers--say more than ten annually--should not be created except on a vote of some large majority, suppose three-fourths of the lower house. this would ensure that the premier should not use the reserve force of the constitution as if it were an ordinary force; that he should not use it except when the whole nation fixedly wished it; that it should be kept for a revolution, not expended on administration; and it would ensure that he should then have it to use. queen anne's case and william iv.'s case prove that neither object is certainly attained by entrusting this critical and extreme force to the chance idiosyncrasies and habitual mediocrity of an hereditary sovereign. it may be asked why i argue at such length a question in appearance so removed from practice, and in one point of view so irrelevant to my subject. no one proposes to remove queen victoria; if any one is in a safe place on earth, she is in a safe place. in these very essays it has been shown that the mass of our people would obey no one else, that the reverence she excites is the potential energy--as science now speaks--out of which all minor forces are made, and from which lesser functions take their efficiency. but looking not to the present hour, and this single country, but to the world at large and coming times, no question can be more practical. what grows upon the world is a certain matter-of-factness. the test of each century, more than of the century before, is the test of results. new countries are arising all over the world where there are no fixed sources of reverence; which have to make them; which have to create institutions which must generate loyalty by conspicuous utility. this matter-of-factness is the growth even in europe of the two greatest and newest intellectual agencies of our time. one of these is business. we see so much of the material fruits of commerce that we forget its mental fruits. it begets a mind desirous of things, careless of ideas, not acquainted with the niceties of words. in all labour there should be profit, is its motto. it is not only true that we have "left swords for ledgers," but war itself is made as much by the ledger as by the sword. the soldier--that is, the great soldier--of to-day is not a romantic animal, dashing at forlorn hopes, animated by frantic sentiment, full of fancies as to a lady-love or a sovereign; but a quiet, grave man, busied in charts, exact in sums, master of the art of tactics, occupied in trivial detail; thinking, as the duke of wellington was said to do, most of the shoes of his soldiers; despising all manner of eclat and eloquence; perhaps, like count moltke, "silent in seven languages". we have reached a "climate" of opinion where figures rule, where our very supporter of divine right, as we deemed him, our count bismarck, amputates kings right and left, applies the test of results to each, and lets none live who are not to do something. there has in truth been a great change during the last five hundred years in the predominant occupations of the ruling part of mankind; formerly they passed their time either in exciting action or inanimate repose. a feudal baron had nothing between war and the chase--keenly animating things both--and what was called "inglorious ease". modern life is scanty in excitements, but incessant in quiet action. its perpetual commerce is creating a "stock-taking" habit--the habit of asking each man, thing, and institution, "well, what have you done since i saw you last?" our physical science, which is becoming the dominant culture of thousands, and which is beginning to permeate our common literature to an extent which few watch enough, quite tends the same way. the two peculiarities are its homeliness and its inquisitiveness; its value for the most "stupid" facts, as one used to call them, and its incessant wish for verification--to be sure, by tiresome seeing and hearing, that they are facts. the old excitement of thought has half died out, or rather it is diffused in quiet pleasure over a life instead of being concentrated in intense and eager spasms. an old philosopher--a descartes, suppose--fancied that out of primitive truths, which he could by ardent excogitation know, he might by pure deduction evolve the entire universe. intense self-examination, and intense reason would, he thought, make out everything. the soul "itself by itself," could tell all it wanted if it would be true to its sublimer isolation. the greatest enjoyment possible to man was that which this philosophy promises its votaries--the pleasure of being always right, and always reasoning--without ever being bound to look at anything. but our most ambitious schemes of philosophy now start quite differently. mr. darwin begins:-- "when on board h.m.s. beagle, as naturalist, i was much struck with certain facts in the distribution of the organic beings inhabiting south america, and in the geological relations of the present to the past inhabitants of that continent. these facts, as will be seen in the latter chapters of this volume, seemed to throw some light on the origin of species--that mystery of mysteries, as it has been called by one of our greatest philosophers. on my return home, it occurred to me, in , that something might perhaps be made out on this question by patiently accumulating and reflecting on all sorts of facts which could possibly have any bearing on it. after five years' work i allowed myself to speculate on the subject, and drew up some short notes; these i enlarged in into a sketch of the conclusions which then seemed to me probable: from that period to the present day i have steadily pursued the same object. i hope that i may be excused for entering on these personal details, as i give them to show that i have not been hasty in coming to a decision." if he hopes finally to solve his great problem, it is by careful experiments in pigeon-fancying, and other sorts of artificial variety-making. his hero is not a self-enclosed, excited philosopher, but "that most skilful breeder, sir john sebright, who used to say, with respect to pigeons, that he would produce any given feathers in three years, but it would take him six years to obtain a head and a beak". i am not saying that the new thought is better than the old; it is no business of mine to say anything about that; i only wish to bring home to the mind, as nothing but instances can bring it home, how matter-of-fact, how petty, as it would at first sight look, even our most ambitious science has become. in the new communities which our emigrating habit now constantly creates, this prosaic turn of mind is intensified. in the american mind and in the colonial mind there is, as contrasted with the old english mind, a literalness, a tendency to say, "the facts are so-and-so, whatever may be thought or fancied about them". we used before the civil war to say that the americans worshipped the almighty dollar; we now know that they can scatter money almost recklessly when they will. but what we meant was half right--they worship visible value: obvious, undeniable, intrusive result. and in australia and new zealand the same turn comes uppermost. it grows from the struggle with the wilderness. physical difficulty is the enemy of early communities, and an incessant conflict with it for generations leaves a mark of reality on the mind--a painful mark almost to us, used to impalpable fears and the half-fanciful dangers of an old and complicated society. the "new englands" of all latitudes are bare-minded (if i may so say) as compared with the "old". when, therefore, the new communities of the colonised world have to choose a government, they must choose one in which all the institutions are of an obvious evident utility. we catch the americans smiling at our queen with her secret mystery, and our prince of wales with his happy inaction. it is impossible, in fact, to convince their prosaic minds that constitutional royalty is a rational government, that it is suited to a new age and an unbroken country, that those who start afresh can start with it. the princelings who run about the world with excellent intentions, but an entire ignorance of business, are to them a locomotive advertisement that this sort of government is european in its limitations and mediaeval in its origin; that though it has yet a great part to play in the old states, it has no place or part in new states. the realisme impitoyable which good critics find in a most characteristic part of the literature of the nineteenth century, is to be found also in its politics. an ostentatious utility must characterise its creations. the deepest interest, therefore, attaches to the problem of this essay. if hereditary royalty had been essential to parliamentary government, we might well have despaired of that government. but accurate investigation shows that this royalty is not essential; that, upon an average, it is not even in a high degree useful; that though a king with high courage and fine discretion--a king with a genius for the place--is always useful, and at rare moments priceless, yet that a common king, a king such as birth brings, is of no use at difficult crises, while in the common course of things his aid is neither likely nor required--he will do nothing, and he need do nothing. but we happily find that a new country need not fall back into the fatal division of powers incidental to a presidential government; it may, if other conditions serve, obtain the ready, well-placed, identical sort of sovereignty which belongs to the english constitution, under the unroyal form of parliamentary government. no. viii. the prerequisites of cabinet government, and the peculiar form which they have assumed in england. cabinet government is rare because its prerequisites are many. it requires the co-existence of several national characteristics which are not often found together in the world, and which should be perceived more distinctly than they often are. it is fancied that the possession of a certain intelligence, and a few simple virtues, are the sole requisites. the mental and moral qualities are necessary, but much else is necessary also. a cabinet government is the government of a committee selected by the legislature, and there are therefore a double set of conditions to it: first, those which are essential to all elective governments as such; and second, those which are requisite to this particular elective government. there are prerequisites for the genus, and additional ones for the species. the first prerequisite of elective government is the mutual confidence of the electors. we are so accustomed to submit to be ruled by elected ministers, that we are apt to fancy all mankind would readily be so too. knowledge and civilisation have at least made this progress, that we instinctively, without argument, almost without consciousness, allow a certain number of specified persons to choose our rulers for us. it seems to us the simplest thing in the world. but it is one of the gravest things. the peculiar marks of semi-barbarous people are diffused distrust and indiscriminate suspicion. people, in all but the most favoured times and places, are rooted to the places where they were born, think the thoughts of those places, can endure no other thoughts. the next parish even is suspected. its inhabitants have different usages, almost imperceptibly different, but yet different; they speak a varying accent; they use a few peculiar words; tradition says that their faith is dubious. and if the next parish is a little suspected, the next county is much more suspected. here is a definite beginning of new maxims, new thoughts, new ways: the immemorial boundary mark begins in feeling a strange world. and if the next county is dubious, a remote county is untrustworthy. "vagrants come from thence," men know, and they know nothing else. the inhabitants of the north speak a dialect different from the dialect of the south: they have other laws, another aristocracy, another life. in ages when distant territories are blanks in the mind, when neighbourhood is a sentiment, when locality is a passion, concerted co-operation between remote regions is impossible even on trivial matters. neither would rely enough upon the good faith, good sense, and good judgment of the other. neither could enough calculate on the other. and if such co-operation is not to be expected in trivial matters, it is not to be thought of in the most vital matter of government--the choice of the executive ruler. to fancy that northumberland in the thirteenth century would have consented to ally itself with somersetshire for the choice of a chief magistrate is absurd; it would scarcely have allied itself to choose a hangman. even now, if it were palpably explained, neither district would like it. but no one says at a county election, "the object of this present meeting is to choose our delegate to what the americans call the 'electoral college,' to the assembly which names our first magistrate--our substitute for their president. representatives from this county will meet representatives from other counties, from cities and boroughs, and proceed to choose our rulers." such bald exposition would have been impossible in old times; it would be considered queer, eccentric, if it were used now. happily, the process of election is so indirect and hidden, and the introduction of that process was so gradual and latent, that we scarcely perceive the immense political trust we repose in each other. the best mercantile credit seems to those who give it, natural, simple, obvious; they do not argue about it, or think about it. the best political credit is analogous; we trust our countrymen without remembering that we trust them. a second and very rare condition of an elective government is a calm national mind--a tone of mind sufficiently staple to bear the necessary excitement of conspicuous revolutions. no barbarous, no semi-civilised nation has ever possessed this. the mass of uneducated men could not now in england be told "go to, choose your rulers;" they would go wild; their imaginations would fancy unreal dangers, and the attempt at election would issue in some forcible usurpation. the incalculable advantage of august institutions in a free state is, that they prevent this collapse. the excitement of choosing our rulers is prevented by the apparent existence of an unchosen ruler. the poorer and more ignorant classes--those who would most feel excitement, who would most be misled by excitement--really believe that the queen governs. you could not explain to them the recondite difference between "reigning" and "governing"; the words necessary to express it do not exist in their dialect; the ideas necessary to comprehend it do not exist in their minds. the separation of principal power from principal station is a refinement which they could not even conceive. they fancy they are governed by an hereditary queen, a queen by the grace of god, when they are really governed by a cabinet and a parliament--men like themselves, chosen by themselves. the conspicuous dignity awakens the sentiment of reverence, and men, often very undignified, seize the occasion to govern by means of it. lastly. the third condition of all elective government is what i may call rationality, by which i mean a power involving intelligence, but yet distinct from it. a whole people electing its rulers must be able to form a distinct conception of distant objects. mostly, the "divinity" that surrounds a king altogether prevents anything like a steady conception of him. you fancy that the object of your loyalty is as much elevated above you by intrinsic nature as he is by extrinsic position; you deify him in sentiment, as once men deified him in doctrine. this illusion has been and still is of incalculable benefit to the human race. it prevents, indeed, men from choosing their rulers; you cannot invest with that loyal illusion a man who was yesterday what you are, who to-morrow may be so again, whom you chose to be what he is. but though this superstition prevents the election of rulers, it renders possible the existence of unelected rulers. untaught people fancy that their king, crowned with the holy crown, anointed with the oil of rheims, descended of the house of plantagenet, is a different sort of being from any one not descended of the royal house--not crowned--not anointed. they believe that there is one man whom by mystic right they should obey; and therefore they do obey him. it is only in later times, when the world is wider, its experience larger, and its thought colder, that the plain rule of a palpably chosen ruler is even possible. these conditions narrowly restrict elective government. but the prerequisites of a cabinet government are rarer still; it demands not only the conditions i have mentioned, but the possibility likewise of a good legislature--a legislature competent to elect a sufficient administration. now a competent legislature is very rare. any permanent legislature at all, any constantly acting mechanism for enacting and repealing laws, is, though it seems to us so natural, quite contrary to the inveterate conceptions of mankind. the great majority of nations conceive of their law, either as something divinely given, and therefore unalterable, or as a fundamental habit, inherited from the past to be transmitted to the future. the english parliament, of which the prominent functions are now legislative, was not all so once. it was rather a preservative body. the custom of the realm--the aboriginal transmitted law--the law which was in the breast of the judges, could not be altered without the consent of parliament, and therefore everybody felt sure it would not be altered except in grave, peculiar, and anomalous cases. the valued use of parliament was not half so much to alter the law, as to prevent the laws being altered. and such too was its real use. in early societies it matters much more that the law should be fixed than that it should be good. any law which the people of ignorant times enact is sure to involve many misconceptions, and to cause many evils. perfection in legislation is not to be looked for, and is not, indeed, much wanted in a rude, painful, confined life. but such an age covets fixity. that men should enjoy the fruits of their labour, that the law of property should be known, that the law of marriage should be known, that the whole course of life should be kept in a calculable track is the summum bonum of early ages, the first desire of semi-civilised mankind. in that age men do not want to have their laws adapted, but to have their laws steady. the passions are so powerful, force so eager, the social bond so weak, that the august spectacle of an all but unalterable law is necessary to preserve society. in the early stages of human society all change is thought an evil. and most change is an evil. the conditions of life are so simple and so unvarying that any decent sort of rules suffice so long as men know what they are. custom is the first check on tyranny; that fixed routine of social life at which modern innovations chafe, and by which modern improvement is impeded, is the primitive check on base power. the perception of political expediency has then hardly begun; the sense of abstract justice is weak and vague; and a rigid adherence to the fixed mould of transmitted usage is essential to an unmarred, unspoiled, unbroken life. in such an age a legislature continuously sitting, always making laws, always repealing laws, would have been both an anomaly and a nuisance. but in the present state of the civilised part of the world such difficulties are obsolete. there is a diffused desire in civilised communities for an adjusting legislation; for a legislation which should adapt the inherited laws to the new wants of a world which now changes every day. it has ceased to be necessary to maintain bad laws because it is necessary to have some laws. civilisation is robust enough to bear the incision of legal improvements. but taking history at large, the rarity of cabinets is mostly due to the greater rarity of continuous legislatures. other conditions, however, limit even at the present day the area of a cabinet government. it must be possible to have not only a legislature, but to have a competent legislature--a legislature willing to elect and willing to maintain an efficient executive. and this is no easy matter. it is indeed true that we need not trouble ourselves to look for that elaborate and complicated organisation which partially exists in the house of commons, and which is more fully and freely expanded in plans for improving the house of commons. we are not now concerned with perfection or excellence; we seek only for simple fitness and bare competency. the conditions of fitness are two. first, you must get a good legislature; and next, you must keep it good. and these are by no means so nearly connected as might be thought at first sight. to keep a legislature efficient, it must have a sufficient supply of substantial business. if you employ the best set of men to do nearly nothing, they will quarrel with each other about that nothing. where great questions end, little parties begin. and a very happy community, with few new laws to make, few old bad laws to repeal, and but simple foreign relations to adjust, has great difficulty in employing a legislature. there is nothing for it to enact, and nothing for it to settle. accordingly, there is great danger that the legislature, being debarred from all other kind of business, may take to quarrelling about its elective business; that controversies as to ministries may occupy all its time, and yet that time be perniciously employed; that a constant succession of feeble administrations, unable to govern and unfit to govern, may be substituted for the proper result of cabinet government--a sufficient body of men long enough in power to evince their sufficiency. the exact amount of non-elective business necessary for a parliament which is to elect the executive cannot, of course, be formally stated. there are no numbers and no statistics in the theory of constitutions. all we can say is, that a parliament with little business, which is to be as efficient as a parliament with much business, must be in all other respects much better. an indifferent parliament may be much improved by the steadying effect of grave affairs; but a parliament which has no such affairs must be intrinsically excellent, or it will fail utterly. but the difficulty of keeping a good legislature, is evidently secondary to the difficulty of first getting it. there are two kinds of nations which can elect a good parliament. the first is a nation in which the mass of the people are intelligent, and in which they are comfortable. where there is no honest poverty, where education is diffused, and political intelligence is common, it is easy for the mass of the people to elect a fair legislature. the idea is roughly realised in the north american colonies of england, and in the whole free states of the union. in these countries there is no such thing as honest poverty; physical comfort, such as the poor cannot imagine here, is there easily attainable by healthy industry. education is diffused much, and is fast spreading, ignorant emigrants from the old world often prize the intellectual advantages of which they are themselves destitute, and are annoyed at their inferiority in a place where rudimentary culture is so common. the greatest difficulty of such new communities is commonly geographical. the population is mostly scattered; and where population is sparse, discussion is difficult. but in a country very large, as we reckon in europe, a people really intelligent, really educated, really comfortable, would soon form a good opinion. no one can doubt that the new england states, if they were a separate community, would have an education, a political capacity, and an intelligence such as the numerical majority of no people, equally numerous, has ever possessed. in a state of this sort, where all the community is fit to choose a sufficient legislature, it is possible, it is almost easy, to create that legislature. if the new england states possessed a cabinet government as a separate nation, they would be as renowned in the world for political sagacity as they now are for diffused happiness. the structure of these communities is indeed based on the principle of equality, and it is impossible that any such community can wholly satisfy the severe requirements of a political theorist. in every old community its primitive and guiding assumption is at war with truth. by its theory all people are entitled to the same political power, and they can only be so entitled on the ground that in politics they are equally wise. but at the outset of an agricultural colony this postulate is as near the truth as politics want. there are in such communities no large properties, no great capitals, no refined classes--every one is comfortable and homely, and no one is at all more. equality is not artificially established in a new colony; it establishes itself. there is a story that among the first settlers in western australia, some, who were rich, took out labourers at their own expense, and also carriages to ride in. but soon they had to try if they could live in the carriages. before the masters' houses were built, the labourers had gone off--they were building houses and cultivating land for themselves, and the masters were left to sit in their carriages. whether this exact thing happened i do not know, but this sort of thing has happened a thousand times. there has been a whole series of attempts to transplant to the colonies a graduated english society. but they have always failed at the first step. the rude classes at the bottom felt that they were equal to or better than the delicate classes at the top; they shifted for themselves, and left the "gentle-folks" to shift for themselves; the base of the elaborate pyramid spread abroad, and the apex tumbled in and perished. in the early ages of an agricultural colony, whether you have political democracy or not, social democracy you must have, for nature makes it, and not you. but in time, wealth grows and inequality begins. a and his children are industrious, and prosper; b and his children are idle, and fail. if manufactures on a considerable scale are established--and most young communities strive even by protection to establish them--the tendency to inequality is intensified. the capitalist becomes a unit with much, and his labourers a crowd with little. after generations of education, too, there arise varieties of culture--there will be an upper thousand, or ten thousand, of highly cultivated people in the midst of a great nation of moderately educated people. in theory it is desirable that this highest class of wealth and leisure should have an influence far out of proportion to its mere number: a perfect constitution would find for it a delicate expedient to make its fine thought tell upon the surrounding cruder thought. but as the world goes, when the whole of the population is as instructed and as intelligent as in the case i am supposing, we need not care much about this. great communities have scarcely ever--never save for transient moments--been ruled by their highest thought. and if we can get them ruled by a decent capable thought, we may be well enough contented with our work. we have done more than could be expected, though not all which could be desired. at any rate, an isocratic polity--a polity where every one votes, and where every one votes alike--is, in a community of sound education and diffused intelligence, a conceivable case of cabinet government. it satisfies the essential condition; there is a people able to elect, a parliament able to choose. but suppose the mass of the people are not able to elect--and this is the case with the numerical majority of all but the rarest nations--how is a cabinet government to be then possible? it is only possible in what i may venture to call deferential nations. it has been thought strange, but there are nations in which the numerous unwiser part wishes to be ruled by the less numerous wiser part. the numerical majority--whether by custom or by choice, is immaterial--is ready, is eager to delegate its power of choosing its ruler to a certain select minority. it abdicates in favour of its elite, and consents to obey whoever that elite may confide in. it acknowledges as its secondary electors--as the choosers of its government--an educated minority, at once competent and unresisted; it has a kind of loyalty to some superior persons who are fit to choose a good government, and whom no other class opposes. a nation in such a happy state as this has obvious advantages for constructing a cabinet government. it has the best people to elect a legislature, and therefore it may fairly be expected to choose a good legislature--a legislature competent to select a good administration. england is the type of deferential countries, and the manner in which it is so, and has become so, is extremely curious. the middle classes--the ordinary majority of educated men--are in the present day the despotic power in england. "public opinion," nowadays, "is the opinion of the bald-headed man at the back of the omnibus." it is not the opinion of the aristocratical classes as such; or of the most educated or refined classes as such; it is simply the opinion of the ordinary mass of educated, but still commonplace mankind. if you look at the mass of the constituencies, you will see that they are not very interesting people; and perhaps if you look behind the scenes and see the people who manipulate and work the constituencies, you will find that these are yet more uninteresting. the english constitution in its palpable form is this--the mass of the people yield obedience to a select few; and when you see this select few, you perceive that though not of the lowest class, nor of an unrespectable class, they are yet of a heavy sensible class--the last people in the world to whom, if they were drawn up in a row, an immense nation would ever give an exclusive preference. in fact, the mass of the english people yield a deference rather to something else that to their rulers. they defer to what we may call the theatrical show of society. a certain state passes before them; a certain pomp of great men; a certain spectacle of beautiful women; a wonderful scene of wealth and enjoyment is displayed, and they are coerced by it. their imagination is bowed down; they feel they are not equal to the life which is revealed to them. courts and aristocracies have the great quality which rules the multitude, though philosophers can see nothing in it--visibility. courtiers can do what others cannot. a common man may as well try to rival the actors on the stage in their acting, as the aristocracy in their acting. the higher world, as it looks from without, is a stage on which the actors walk their parts much better than the spectators can. this play is played in every district. every rustic feels that his house is not like my lord's house; his life like my lord's life; his wife like my lady. the climax of the play is the queen: nobody supposes that their house is like the court; their life like her life; her orders like their orders. there is in england a certain charmed spectacle which imposes on the many, and guides their fancies as it will. as a rustic on coming to london finds himself in presence of a great show and vast exhibition of inconceivable mechanical things, so by the structure of our society, he finds himself face to face with a great exhibition of political things which he could not have imagined, which he could not make--to which he feels in himself scarcely anything analogous. philosophers may deride this superstition, but its results are inestimable. by the spectacle of this august society, countless ignorant men and women are induced to obey the few nominal electors--the ll borough renters, and the l county renters--who have nothing imposing about them, nothing which would attract the eye or fascinate the fancy. what impresses men is not mind, but the result of mind. and the greatest of these results is this wonderful spectacle of society, which is ever new, and yet ever the same; in which accidents pass and essence remains; in which one generation dies and another succeeds, as if they were birds in a cage, or animals in a menagerie; of which it seems almost more than a metaphor to treat the parts as limbs of a perpetual living thing, so silently do they seem to change, so wonderfully and so perfectly does the conspicuous life of the new year take the place of the conspicuous life of last year. the apparent rulers of the english nation are like the most imposing personages of a splendid procession: it is by them the mob are influenced; it is they whom the spectators cheer. the real rulers are secreted in second-rate carriages; no one cares for them or asks about them, but they are obeyed implicitly and unconsciously by reason of the splendour of those who eclipsed and preceded them. it is quite true that this imaginative sentiment is supported by a sensation of political satisfaction. it cannot be said that the mass of the english people are well off. there are whole classes who have not a conception of what the higher orders call comfort; who have not the prerequisites of moral existence; who cannot lead the life that becomes a man. but the most miserable of these classes do not impute their misery to politics. if a political agitator were to lecture to the peasants of dorsetshire, and try to excite political dissatisfaction, it is much more likely that he would be pelted than that he would succeed. of parliament these miserable creatures know scarcely anything; of the cabinet they never heard. but they would say that, "for all they have heard, the queen is very good"; and rebelling against the structure of society is to their minds rebelling against the queen, who rules that society, in whom all its most impressive part--the part that they know--culminates. the mass of the english people are politically contented as well as politically deferential. a deferential community, even though its lowest classes are not intelligent, is far more suited to a cabinet government than any kind of democratic country, because it is more suited to political excellence. the highest classes can rule in it; and the highest classes must, as such, have more political ability than the lower classes. a life of labour, an incomplete education, a monotonous occupation, a career in which the hands are used much and the judgment is used little, cannot create as much flexible thought, as much applicable intelligence, as a life of leisure, a long culture, a varied experience, an existence by which the judgment is incessantly exercised, and by which it may be incessantly improved. a country of respectful poor, though far less happy than where there are no poor to be respectful, is nevertheless far more fitted for the best government. you can use the best classes of the respectful country; you can only use the worst where every man thinks he is as good as every other. it is evident that no difficulty can be greater than that of founding a deferential nation. respect is traditional; it is given not to what is proved to be good, but to what is known to be old. certain classes in certain nations retain by common acceptance a marked political preference, because they have always possessed it, and because they inherit a sort of pomp which seems to make them worthy of it. but in a new colony, in a community where merit may be equal, and where there cannot be traditional marks of merit and fitness, it is obvious that a political deference can be yielded to higher culture only upon proof, first of its existence, and next of its political value. but it is nearly impossible to give such a proof so as to satisfy persons of less culture. in a future and better age of the world it may be effected; but in this age the requisite premises scarcely exist; if the discussion be effectually open, if the debate be fairly begun, it is hardly possible to obtain a rational, an argumentative acquiescence in the rule of the cultivated few. as yet the few rule by their hold, not over the reason of the multitude, but over their imaginations, and their habits; over their fancies as to distant things they do not know at all, over their customs as to near things which they know very well. a deferential community in which the bulk of the people are ignorant, is therefore in a state of what is called in mechanics unstable equilibrium. if the equilibrium is once disturbed there is no tendency to return to it, but rather to depart from it. a cone balanced on its point is in unstable equilibrium, for if you push it ever so little it will depart farther and farther from its position and fall to the earth. so in communities where the masses are ignorant but respectful, if you once permit the ignorant class to begin to rule you may bid farewell to deference for ever. their demagogues will inculcate, their newspapers will recount, that the rule of the existing dynasty (the people) is better than the rule of the fallen dynasty (the aristocracy). a people very rarely hears two sides of a subject in which it is much interested; the popular organs take up the side which is acceptable, and none but the popular organs in fact reach the people. a people never hears censure of itself. no one will tell it that the educated minority whom it dethroned governed better or more wisely than it governs. a democracy will never, save after an awful catastrophe, return what has once been conceded to it, for to do so would be to admit an inferiority in itself, of which, except by some almost unbearable misfortune, it could never be convinced. no. ix. its history, and the effects of that history.--conclusion. a volume might seem wanted to say anything worth saying[ ] on the history of the english constitution, and a great and new volume might still be written on it, if a competent writer took it in hand. the subject has never been treated by any one combining the lights of the newest research and the lights of the most matured philosophy. since the masterly book of hallam was written, both political thought and historical knowledge have gained much, and we might have a treatise applying our strengthened calculus to our augmented facts. i do not pretend that i could write such a book, but there are a few salient particulars which may be fitly brought together, both because of their past interest and of their present importance. [ ] since the first edition of this book was published several valuable works have appeared, which, on many points, throw much light on our early constitutional history, especially mr. stubbs' select charters and other illustrations of english constitutional history, from the earliest times to the reign of edward the first, mr. freeman's lecture on "the growth of the english constitution," and the chapter on the anglo-saxon constitution in his history of the norman conquest: but we have not yet a great and authoritative work on the whole subject such as i wished for when i wrote the passage in the text, and as it is most desirable that we should have. there is a certain common polity, or germ of polity, which we find in all the rude nations that have attained civilisation. these nations seem to begin in what i may call a consultative and tentative absolutism. the king of early days, in vigorous nations, was not absolute as despots now are; there was then no standing army to repress rebellion, no organised espionage to spy out discontent, no skilled bureaucracy to smooth the ruts of obedient life. the early king was indeed consecrated by a religious sanction; he was essentially a man apart, a man above others, divinely anointed or even god-begotten. but in nations capable of freedom this religious domination was never despotic. there was indeed no legal limit; the very words could not be translated into the dialect of those times. the notion of law as we have it--of a rule imposed by human authority, capable of being altered by that authority, when it likes, and in fact, so altered habitually--could not be conveyed to early nations, who regarded law half as an invincible prescription, and half as a divine revelation. law "came out of the king's mouth"; he gave it as solomon gave judgment--embedded in the particular case, and upon the authority of heaven as well as his own. a divine limit to the divine revealer was impossible, and there was no other source of law. but though there was no legal limit, there was a practical limit to subjection in (what may be called) the pagan part of human nature--the inseparable obstinacy of freemen. they never would do exactly what they were told. to early royalty, as homer describes it in greece and as we may well imagine it elsewhere, there were always two adjuncts: one the "old men," the men of weight, the council, the _boulé_, of which the king asked advice, from the debates in which the king tried to learn what he could do and what he ought to do. besides this there was the _agorá_, the purely listening assembly, as some have called it, but the tentative assembly, as i think it might best be called. the king came down to his assembled people in form to announce his will, but in reality, speaking in very modern words, to "feel his way". he was sacred, no doubt; and popular, very likely; still he was half like a popular premier speaking to a high-spirited chamber; there were limits to his authority and power--limits which he would discover by trying whether eager cheers received his mandate, or only hollow murmurs and a thinking silence. this polity is a good one for its era and its place, but there is a fatal defect in it. the reverential associations upon which the government is built are transmitted according to one law, and the capacity needful to work the government is transmitted according to another law. the popular homage clings to the line of god-descended kings; it is transmitted by inheritance. but very soon that line comes to a child or an idiot, or one by some defect or other incapable. then we find everywhere the truth of the old saying, that liberty thrives under weak princes; then the listening assembly begins not only to murmur, but to speak; then the grave council begins not so much to suggest as to inculcate, not so much to advise as to enjoin. mr. grote has told at length how out of these appendages of the original kingdom the free states of greece derived their origin, and how they gradually grew--the oligarchical states expanding the council, and the democratical expanding the assembly. the history has as many varieties in detail as there were greek cities, but the essence is the same everywhere. the political characteristic of the early greeks, and of the early romans, too, is that out of the tentacula of a monarchy they developed the organs of a republic. english history has been in substance the same, though its form is different, and its growth far slower and longer. the scale was larger, and the elements more various. a greek city soon got rid of its kings, for the political sacredness of the monarch would not bear the daily inspection and constant criticism of an eager and talking multitude. everywhere in greece the slave population--the most ignorant, and therefore the most unsusceptible of intellectual influences--was struck out of the account. but england began as a kingdom of considerable size, inhabited by distinct races, none of them fit for prosaic criticism, and all subject to the superstition of royalty. in early england, too, royalty was much more than a superstition. a very strong executive was needed to keep down a divided, an armed, and an impatient country; and therefore the problem of political development was delicate. a formed free government in a homogeneous nation may have a strong executive; but during the transition state, while the republic is in course of development and the monarchy in course of decay, the executive is of necessity weak. the polity is divided, and its action feeble and failing. the different orders of english people have progressed, too, at different rates. the change in the state of the higher classes since the middle ages is enormous, and it is all improvement; but the lower have varied little, and many argue that in some important respects they have got worse, even if in others they have got better. the development of the english constitution was of necessity slow, because a quick one would have destroyed the executive and killed the state, and because the most numerous classes, who changed very little, were not prepared for any catastrophic change in our institutions. i cannot presume to speak of the time before the conquest, and the exact nature even of all anglo-norman institutions is perhaps dubious: at least, in nearly all cases there have been many controversies. political zeal, whether whig or tory, has wanted to find a model in the past; and the whole state of society being confused, the precedents altering with the caprice of men and the chance of events, ingenious advocacy has had a happy field. but all that i need speak of is quite plain. there was a great "council" of the realm, to which the king summoned the most considerable persons in england, the persons he most wanted to advise him, and the persons whose tempers he was most anxious to ascertain. exactly who came to it at first is obscure and unimportant. i need not distinguish between the "magnum concilium in parliament" and the "magnum concilium out of parliament". gradually the principal assemblies summoned by the english sovereign took the precise and definite form of lords and commons, as in their outside we now see them. but their real nature was very different. the parliament of to-day is a ruling body; the mediaeval parliament was, if i may so say, an expressive body. its function was to tell the executive--the king--what the nation wished he should do; to some extent, to guide him by new wisdom, and, to a very great extent, to guide him by new facts. these facts were their own feelings, which were the feelings of the people, because they were part and parcel of the people. from thence the king learned, or had the means to learn, what the nation would endure, and what it would not endure;--what he might do, and what he might not do. if he much mistook this, there was a rebellion. there are, as is well known, three great periods in the english constitution. the first of these is the ante-tudor period. the english parliament then seemed to be gaining extraordinary strength and power. the title to the crown was uncertain; some monarchs were imbecile. many ambitious men wanted to "take the people into partnership". certain precedents of that time were cited with grave authority centuries after, when the time of freedom had really arrived. but the causes of this rapid growth soon produced an even more sudden decline. confusion fostered it, and confusion destroyed it. the structure of society then was feudal; the towns were only an adjunct and a make-weight. the principal popular force was an aristocratic force, acting with the co-operation of the gentry and yeomanry, and resting on the loyal fealty of sworn retainers. the head of this force, on whom its efficiency depended, was the high nobility. but the high nobility killed itself out. the great barons who adhered to the "red rose" or the "white rose," or who fluctuated from one to the other, became poorer, fewer, and less potent every year. when the great struggle ended at bosworth, a large part of the greatest combatants were gone. the restless, aspiring, rich barons, who made the civil war, were broken by it. henry vii. attained a kingdom in which there was a parliament to advise, but scarcely a parliament to control. the consultative government of the ante-tudor period had little resemblance to some of the modern governments which french philosophers call by that name. the french empire, i believe, calls itself so. but its assemblies are symmetrical "shams". they are elected by a universal suffrage, by the ballot, and in districts once marked out with an eye to equality, and still retaining a look of equality. but our english parliaments were unsymmetrical realities. they were elected anyhow; the sheriff had a considerable licence in sending writs to boroughs, that is, he could in part pick its constituencies; and in each borough there was a rush and scramble for the franchise, so that the strongest local party got it, whether few or many. but in england at that time there was a great and distinct desire to know the opinion of the nation, because there was a real and close necessity. the nation was wanted to do something--to assist the sovereign in some war, to pay some old debt, to contribute its force and aid in the critical conjuncture of the time. it would not have suited the ante-tudor kings to have had a fictitious assembly; they would have lost their sole feeler, their only instrument for discovering national opinion. nor could they have manufactured such an assembly if they wished. the instrument in that behalf is the centralised executive, and there was then no 'prefet' by whom the opinion of a rural locality could be made to order, and adjusted to suit the wishes of the capital. looking at the mode of election a theorist would say that these parliaments were but "chance" collections of influential englishmen. there would be many corrections and limitations to add to that statement if it were wanted to make it accurate, but the statement itself hits exactly the principal excellence of those parliaments. if not "chance" collections of englishmen, they were "undesigned" collections; no administrations made them or could make them. they were bona-fide counsellors, whose opinion might be wise or unwise, but was anyhow of paramount importance, because their co-operation was wanted for what was in hand. legislation as a positive power was very secondary in those old parliaments. i believe no statute at all, as far as we know, was passed in the reign of richard i., and all the ante-tudor acts together would look meagre enough to a modern parliamentary agent who had to live by them. but the negative action of parliament upon the law was essential to its whole idea, and ran through every part of its use. that the king could not change what was then the almost sacred datum of the common law, without seeing whether his nation liked it or not, was an essential part of the "tentative" system. the king had to feel his way in this exceptional, singular act, as those ages deemed original legislation, as well as in lesser acts. the legislation was his at last; he enacted after consulting his lords and commons; his was the sacred mouth which gave holy firmness to the enactment; but he only dared alter the rule regulating the common life of his people after consulting those people; he would not have been obeyed if he had not, by a rude age which did not fear civil war as we fear it now. many most important enactments of that period (and the fact is most characteristic) are declaratory acts. they do not profess to enjoin by inherent authority what the law shall in future be, but to state and mark what the law is; they are declarations of immemorial custom, not precepts of new duties. even in the "great charter" the notion of new enactments was secondary, it was a great mixture of old and new; it was a sort of compact defining what was doubtful in floating custom, and was re-enacted over and over again, as boundaries are perambulated once a year, and rights and claims tending to desuetude thereby made patent and cleared of new obstructions. in truth, such great "charters" were rather treaties between different orders and factions, confirming ancient rights, or what claimed to be such, than laws in our ordinary sense. they were the "deeds of arrangement" of mediaeval society affirmed and re-affirmed from time to time, and the principal controversy was, of course, between the king and nation--the king trying to see how far the nation would let him go, and the nation murmuring and recalcitrating, and seeing how many acts of administration they could prevent, and how many of its claims they could resist. sir james mackintosh says that magna charta "converted the right of taxation into the shield of liberty," but it did nothing of the sort. the liberty existed before, and the right to be taxed was an efflorescence and instance of it, not a sub-stratum or a cause. the necessity of consulting the great council of the realm before taxation, the principle that the declaration of grievances by the parliament was to precede the grant of supplies to the sovereign, are but conspicuous instances of the primitive doctrine of the ante-tudor period, that the king must consult the great council of the realm, before he did anything, since he always wanted help. the right of self-taxation was justly inserted in the "great treaty"; but it would have been a dead letter, save for the armed force and aristocratic organisation which compelled the king to make a treaty; it was a result, not a basis--an example, not a cause. the civil wars of many years killed out the old councils (if i might so say): that is, destroyed three parts of the greater nobility, who were its most potent members, tired the small nobility and the gentry, and overthrew the aristocratic organisation on which all previous effectual resistance to the sovereign had been based. the second period of the british constitution begins with the accession of the house of tudor, and goes down to ; it is in substance the history of the growth, development, and gradually acquired supremacy of the new great council. i have no room and no occasion to narrate again the familiar history of the many steps by which the slavish parliament of henry viii. grew into the murmuring parliament of queen elizabeth, the mutinous parliament of james i., and the rebellious parliament of charles i. the steps were many, but the energy was one--the growth of the english middle-class, using that word in its most inclusive sense, and its animation under the influence of protestantism. no one, i think, can doubt that lord macaulay is right in saying that political causes would not alone have then provoked such a resistance to the sovereign unless propelled by religious theory. of course the english people went to and fro from catholicism to protestantism, and from protestantism to catholicism (not to mention that the protestantism was of several shades and sects), just as the first tudor kings and queens wished. but that was in the pre-puritan era. the mass of englishmen were in an undecided state, just as hooper tells us his father was--"not believing in protestantism, yet not disinclined to it". gradually, however, a strong evangelic spirit (as we should now speak) and a still stronger anti-papal spirit entered into the middle sort of englishmen, and added to that force, fibre, and substance which they have never wanted, an ideal warmth and fervour which they have almost always wanted. hence the saying that cromwell founded the english constitution. of course, in seeming, cromwell's work died with him; his dynasty was rejected, his republic cast aside; but the spirit which culminated in him never sank again, never ceased to be a potent, though often a latent and volcanic force in the country. charles ii. said that he would never go again on his travels for anything or anybody; and he well knew that though the men whom he met at worcester might be dead, still the spirit which warmed them was alive and young in others. but the cromwellian republic and the strict puritan creed were utterly hateful to most englishmen. they were, if i may venture on saying so, like the "rouge" element in france and elsewhere--the sole revolutionary force in the entire state, and were hated as such. that force could do little of itself; indeed, its bare appearance tended to frighten and alienate the moderate and dull as well as the refined and reasoning classes. alone it was impotent against the solid clay of the english apathetic nature. but give this fiery element a body of decent-looking earth; give it an excuse for breaking out on an occasion, when the decent, the cultivated, and aristocratic classes could join with it, and they would conquer by means of it, and it could be disguised in their covering. such an excuse was found in . james ii., by incredible and pertinacious folly, irritated not only the classes which had fought against his father, but also those who had fought for his father. he offended the anglican classes as well as the puritan classes; all the whig nobles, and half the tory nobles, as well as the dissenting bourgeois. the rule of parliament was established by the concurrence of the usual supporters of royalty with the usual opponents of it. but the result was long weak. our revolution has been called the minimum of a revolution, because in law, at least, it only changed the dynasty, but exactly on that account it was the greatest shock to the common multitude, who see the dynasty but see nothing else. the support of the main aristocracy held together the bulk of the deferential classes, but it held them together imperfectly, uneasily, and unwillingly. huge masses of crude prejudice swayed hither and thither for many years. if an able stuart had with credible sincerity professed protestantism probably he might have overturned the house of hanover. so strong was inbred reverence for hereditary right, that until the accession of george iii. the english government was always subject to the unceasing attrition of a competitive sovereign. this was the result of what i insist on tediously, but what is most necessary to insist on, for it is a cardinal particular in the whole topic. many of the english people--the higher and more educated portion--had come to comprehend the nature of constitutional government, but the mass did not comprehend it. they looked to the sovereign as the government, and to the sovereign only. these were carried forward by the magic of the aristocracy and principally by the influence of the great whig families with their adjuncts. without that aid reason or liberty would never have held them. though the rule of parliament was definitely established in , yet the mode of exercising that rule has since changed. at first parliament did not know how to exercise it; the organisation of parties and the appointment of cabinets by parties grew up in the manner macaulay has described so well. up to the latest period the sovereign was supposed, to a most mischievous extent, to interfere in the choice of the persons to be ministers. when george iii. finally became insane, in , every one believed that george iv., on assuming power as prince regent, would turn out mr. perceval's government and empower lord grey or lord grenville, the whig leaders, to form another. the tory ministry was carrying on a successful war--a war of existence--against napoleon; but in the people's minds, the necessity at such an occasion for an unchanged government did not outweigh the fancy that george iv. was a whig. and a whig it is true he had been before the french revolution, when he lived an indescribable life in st. james's street with mr. fox. but lord grey and lord grenville were rigid men, and had no immoral sort of influence. what liberalism of opinion the regent ever had was frightened out of him (as of other people) by the reign of terror. he felt, according to the saying of another monarch, that "he lived by being a royalist". it soon appeared that he was most anxious to retain mr. perceval, and that he was most eager to quarrel with the whig lords. as we all know, he kept the ministry whom he found in office; but that it should have been thought he could then change them, is a significant example how exceedingly modern our notions of the despotic action of parliament in fact are. by the steps of the struggle thus rudely mentioned (and by others which i have no room to speak of, nor need i), the change which in the greek cities was effected both in appearance and in fact, has been effected in england, though in reality only, and not in outside. here, too, the appendages of a monarchy have been converted into the essence of a republic; only here, because of a more numerous heterogeneous political population, it is needful to keep the ancient show while we secretly interpolate the new reality. this long and curious history has left its trace on almost every part of our present political condition; its effects lie at the root of many of our most important controversies; and because these effects are not rightly perceived, many of these controversies are misconceived. one of the most curious peculiarities of the english people is its dislike of the executive government. we are not in this respect "un vrai peuple moderne," like the americans. the americans conceive of the executive as one of their appointed agents; when it intervenes in common life, it does so, they consider, in virtue of the mandate of the sovereign people, and there is no invasion or dereliction of freedom in that people interfering with itself. the french, the swiss, and all nations who breathe the full atmosphere of the nineteenth century, think so too. the material necessities of this age require a strong executive; a nation destitute of it cannot be clean, or healthy, or vigorous, like a nation possessing it. by definition, a nation calling itself free should have no jealousy of the executive, for freedom means that the nation, the political part of the nation, wields the executive. but our history has reversed the english feeling: our freedom is the result of centuries of resistance, more or less legal, or more or less illegal, more or less audacious, or more or less timid, to the executive government. we have, accordingly, inherited the traditions of conflict, and preserve them in the fulness of victory. we look on state action, not as our own action, but as alien action; as an imposed tyranny from without, not as the consummated result of our own organised wishes. i remember at the census of hearing a very sensible old lady say that the "liberties of england were at an end"; if government might be thus inquisitorial, if they might ask who slept in your house, or what your age was, what, she argued, might they not ask and what might they not do? the natural impulse of the english people is to resist authority. the introduction of effectual policemen was not liked; i know people, old people, i admit, who to this day consider them an infringement of freedom, and an imitation of the gendarmes of france. if the original policemen had been started with the present helmets, the result might have been dubious; there might have been a cry of military tyranny, and the inbred insubordination of the english people might have prevailed over the very modern love of perfect peace and order. the old notion that the government is an extrinsic agency still rules our imaginations, though it is no longer true, and though in calm and intellectual moments we well know it is not. nor is it merely our history which produces this effect; we might get over that; but the results of that history co-operate. our double government so acts: when we want to point the antipathy to the executive, we refer to the jealousy of the crown, so deeply embedded in the very substance of constitutional authority; so many people are loth to admit the queen, in spite of law and fact, to be the people's appointee and agent, that it is a good rhetorical emphasis to speak of her prerogative as something non-popular, and therefore to be distrusted. by the very nature of our government our executive cannot be liked and trusted as the swiss or the american is liked and trusted. out of the same history and the same results proceed our tolerance of those "local authorities" which so puzzle many foreigners. in the struggle with the crown these local centres served as props and fulcrums. in the early parliaments it was the local bodies who sent members to parliament, the counties, and the boroughs; and in that way, and because of their free life, the parliament was free too. if active real bodies had not sent the representatives, they would have been powerless. this is very much the reason why our old rights of suffrage were so various; the government let whatever people happened to be the strongest in each town choose the members. they applied to the electing bodies the test of "natural selection"; whatever set of people were locally strong enough to elect, did so. afterwards in the civil war, many of the corporations, like that of london, were important bases of resistance. the case of london is typical and remarkable. probably, if there is any body more than another which an educated englishman nowadays regards with little favour, it is the corporation of london. he connects it with hereditary abuses perfectly preserved, with large revenues imperfectly accounted for, with a system which stops the principal city government at an old archway, with the perpetuation of a hundred detestable parishes, with the maintenance of a horde of luxurious and useless bodies. for the want of all which makes paris nice and splendid we justly reproach the corporation of london; for the existence of much of what makes london mean and squalid we justly reproach it too. yet the corporation of london was for centuries a bulwark of english liberty. the conscious support of the near and organised capital gave the long parliament a vigour and vitality which they could have found nowhere else. their leading patriots took refuge in the city, and the nearest approach to an english "sitting in permanence" is the committee at guildhall, where all members "that came were to have voices". down to george iii.'s time the city was a useful centre of popular judgment. here, as elsewhere, we have built into our polity pieces of the scaffolding by which it was erected. de tocqueville indeed used to maintain that in this matter the english were not merely historically excusable but likewise politically judicious. he founded what may be called the culte of corporations. and it was natural, that in france, where there is scarcely any power of self-organisation in the people, where the prefet must be asked upon every subject, and take the initiative in every movement, a solitary thinker should be repelled from the exaggerations of which he knew the evil, to the contrary exaggeration of which he did not. but in a country like england where business is in the air, where we can organise a vigilance committee on every abuse and an executive committee for every remedy--as a matter of political instruction, which was de tocqueville's point--we need not care how much power is delegated to outlying bodies, and how much is kept for the central body. we have had the instruction municipalities could give us: we have been through all that. now we are quite grown up, and can put away childish things. the same causes account for the innumerable anomalies of our polity. i own that i do not entirely sympathise with the horror of these anomalies which haunts some of our best critics. it is natural that those who by special and admirable culture have come to look at all things upon the artistic side, should start back from these queer peculiarities. but it is natural also that persons used to analyse political institutions should look at these anomalies with a little tenderness and a little interest. they may have something to teach us. political philosophy is still more imperfect; it has been framed from observations taken upon regular specimens of politics and states; as to these its teaching is most valuable. but we must ever remember that its data are imperfect. the lessons are good where its primitive assumptions hold, but may be false where those assumptions fail. a philosophical politician regards a political anomaly as a scientific physician regards a rare disease--it is to him an "interesting case". there may still be instruction here, though we have worked out the lessons of common cases. i cannot, therefore, join in the full cry against anomalies; in my judgment it may quickly overrun the scent, and so miss what we should be glad to find. subject to this saving remark, however, i not only admit, but maintain, that our constitution is full of curious oddities, which are impeding and mischievous, and ought to be struck out. our law very often reminds one of those outskirts of cities where you cannot for a long time tell how the streets come to wind about in so capricious and serpent-like a manner. at last it strikes you that they grew up, house by house, on the devious tracks of the old green lanes; and if you follow on to the existing fields, you may often find the change half complete. just so the lines of our constitution were framed in old eras of sparse population, few wants, and simple habits; and we adhere in seeming to their shape, though civilisation has come with its dangers, complications, and enjoyments. these anomalies, in a hundred instances, mark the old boundaries of a constitutional struggle. the casual line was traced according to the strength of deceased combatants; succeeding generations fought elsewhere; and the hesitating line of a half-drawn battle was left to stand for a perpetual limit. i do not count as an anomaly the existence of our double government, with all its infinite accidents, though half the superficial peculiarities that are often complained of arise out of it. the co-existence of a queen's seeming prerogative and a downing street's real government is just suited to such a country as this, in such an age as ours.[ ] [ ] so well is our real government concealed, that if you tell a cabman to drive to "downing street," he most likely will never have heard of it, and will not in the least know where to take you. it is only a "disguised republic". [the end] memoirs of james robert hope-scott, volume ii memoirs of james robert hope-scott of abbotsford, d.c.l., q.c. late fellow of merton college, oxford _with selections from his correspondence_ by robert ornsby, m.a. professor of greek and latin literature in the catholic university of ireland; fellow of the royal university of ireland; late fellow of trin. coll. oxford in two volumes vol. ii. contents of the second volume. chapter xviii. , . mr. hope's pamphlet on the jerusalem bishopric--his value for the canon law--continued correspondence of mr. hope and mr. newman on the jerusalem bishopric--mr. newman's idea of a monastery--mr. newman writes from littlemore, april , --dr. pusey consults mr. hope on his letter to the archbishop of canterbury--dr. pusey and the jerusalem bishopric--letters of archdeacon manning, mr. w. palmer, sir john t. coleridge, sir f. palgrave, bishop philpotts, and count senfft, on mr. hope's pamphlet chapter xix. , . oxford commotions of - --mr. newman's retractation--correspondence of mr. newman and j. r. hope on the subject--mr. hope pleads for mr. macmullen--dr. pusey suspended for his sermon on the holy eucharist--seeks advice from mr. hope--mr. newman resigns st. mary's--correspondence of mr. newman and mr. hope on the 'lives of the english saints'--mr. ward's condemnation--mr. hope sees the 'shadow of the cross' through the press-- engaged with 'scripture prints,' 'pupilla oculi,' &c.--lady g. fullerton's recollections of j. r. hope--he proposes to make a retreat at littlemore chapter xx. , . mr. hope's tour on the continent in --visit to munich--dr. pusey's 'library of roman catholic works'--dr. pusey and the spiritual exercises-- his opinion of the discipline--mr. hope's visit to tetschen in --count leo thun and his friends--mr. hope's interview with prince metternich--the hon. sir r. gordon, ambassador at vienna--visit to prince palffy and to prince liechtenstein--the hungarian diet at presburg--letter of manzoni to j. r. hope--visit to rome--bishop grant and mr. hope--mr. hope resigns chancellorship of salisbury--dr. pusey and the stone altar case--mr. oakeley and mr. hope--scottish episcopalian church and its office--mr. gladstone endeavours to hold mr. hope back--proposes tour in ireland-- conversion of mr. newman--mr. hope on the essay on development--letter of mr. newman to j. r. hope from rome--reopening of correspondence with mr. newman chapter xxi. - . mr. hope's doubts of anglicanism--correspondence with mr. gladstone-- correspondence of j. r. hope and mr. gladstone continued--mr. gladstone advises active works of charity--bishop philpotts advises mr. hope to go into parliament--mr. hope and mr. gladstone in society--mr. hope on the church affairs of canada--dr. hampden, bishop of hereford--the troubles at leeds--mr. hope on the jewish question, &c.--the gorham case--the curzon street resolutions--the 'papal aggression' commotion--correspondence of mr. hope and mr. manning--their conversion--opinions of friends on mr. hope's conversion--mr. gladstone--father roothaan, f.g. soc. jes., to count senfft--dr. dollinger--mr. hope to mr. badeley--conversion of mr. w. palmer chapter xxii. - . review of mr. hope's professional career--his view of secular pursuits-- advice from archdeacon manning against overwork--early professional services to government--j. r. hope adopts the parliamentary bar--his elements of success--is made q.c.--difficulty about supremacy oath--mr. venables on mr. hope-scott as a pleader--recollections of mr. cameron--mr. hope-scott on his own profession--mr. hope-scott's professional day-- regular history of practice not feasible--specimens of cases: . the caledonian railway interposing a tunnel. . award by mr. hope-scott and r, stephenson. . mersey conservancy and docks bill, 'parliamentary hunting- day,' liverpool and manchester compared. . london, brighton, and south coast and the beckenham line. . scottish railways--an amalgamation case-- mr. hope-scott and mr. denison; honourable conduct of mr. hope-scott as a pleader. . dublin trunk connecting railway. . professional services of mr. hope-scott to eton--claims of clients on time--value of ten minutes-- conscientiousness--professional income--extra occupations--affection of mr. hope-scott for father newman--spirit in which he laboured chapter xxiii. - . mr. hope's engagement to charlotte lockhart--memorial of charlotte lockhart--their marriage--mr. lockhart's letter to mr. j. r. hope on his conversion--filial piety of mr. hope--conversion of lord and lady henry kerr--domestic life at abbotsford--visit of dr. newman to abbotsford in --birth of mary monica hope-scott--bishop grant on early education--mr. lockhart's home correspondence--death of walter lockhart scott--mr. hope takes the name of hope-scott--last illness and death of mr. lockhart-- death of lady hope--letter of lord dalhousie--mr. hope-scott purchases a highland estate--death of mrs. hope-scott and her two infants--letters of mr. hope-scott, in his affliction, to dr. newman and mr. gladstone--verses in --letter of dr. newman on receiving them chapter xxiv. - . mr. hope-scott's return to his profession--second marriage--lady victoria howard--mr. hope-scott at hyeres--portraits of mr. hope-scott-- miscellaneous recollections--mr. hope-scott in the highlands--ways of building--story of second-sight at lochshiel chapter xxv. - . visit of queen victoria to abbotsford in --mr. hope-scott's improvements at abbotsford--mr. hope-scott's polities--toryism in early life--constitutional conservatism--mr. hope-scott as an irish and a highland proprietor--correspondence on politics with mr. gladstone, and with lord henry kerr in --speech at arundel in chapter xxvi. - . religious life of mr. hope-scott--motives of conversion--acceptance of the dogma of infallibility--the 'angelus' on the committee-room stairs--faith in the real presence--books of devotion--the society of jesus--letter of mrs. bellasis--mr. hope-scott's manners--his generosity--courage in admonishing--habits of prayer--services to catholicity--remark of lord blachford--the catholic university of ireland--cardinal newman's dedication of his 'university sketches' to mr. hope-scott--aid in the achilli trial-- mr. badeley's speech--charitable bequests--westminster missions--repeal of titles act--statement of mr. hope-scott--letter to right hon. s. walpole-- correspondence with the duke of norfolk--scottish education bill, -- parliamentary committee on convents--services of mr. hope-scott to catholicity in legal advice to priests and convents--other charities in advice, &c.--private charities, their general character--probable amount of them--missions on the border--galashiels--abbotsford--letter of pere de ravignan, s.j.--kelso--letter of father taggart--burning of the church at kelso--charge of the lord justice-clerk--article from the 'scotsman '-- missions in the western highlands--moidart--mr. hope-scott's purchase of lochshiel--'road-making'--dr. newman's 'grammar of assent'--mr. hope- scott's kindness to his highland tenants--builds school and church at mingarry--church at glenuig--sells dorlin to lord howard of glossop--other scottish missions aided by mr. hope-scott--his irish tenantry--his charities at hyeres chapter xxvii. - . mr. hope-scott's speech on termination of guardianship to the duke of norfolk--failure in mr. hope-scott's health--exhaustion after a day's pleading--his neglect of exercise--death of mr. badeley--letter of dr. newman--last correspondence of mr. hope and the bishop of salisbury (hamilton)--dr. newman's friendship for mr. hope-scott and serjeant bellasis--mr. hope-scott proposes to retire--birth of james fitzalan hope-- death of lady victoria hope-scott--mr. hope-scott retires from his profession--edits abridgment of lockhart, which he dedicates to mr. gladstone--dr. newman on sir walter scott--visit of dr. newman to abbotsford in --mr. hope-scott's last illness--his faith and resignation--his death--benediction of the holy father--requiem mass for mr. hope-scott at the jesuit church, farm street--funeral ceremonies at st. margaret's, edinburgh--cardinal newman and mr. gladstone on mr. hope-scott appendix i. funeral sermon by his eminence cardinal newman, preached at the requiem mass for mr. hope-scott, at the church of the immaculate conception, farm street, may , appendix ii. words spoken in the chapel of the ursulines of jesus, st. margaret's convent, edinburgh, on the th day of may, , at the funeral of james robert hope-scott, q.c. by the rev. william j. amherst, s.j. appendix iii. the right hon. w. e. gladstone, m.p., to miss hope-scott [now the hon. mrs. maxwell scott] appendix iv. verses by j. r. hope-scott table of letters, etc. * * * * * memoirs of james robert hope-scott. * * * * * chapter xviii. - . mr. hope's pamphlet on the jerusalem bishopric--his value for the canon law--continued correspondence of mr. hope and mr. newman on the jerusalem bishopric--mr. newman's idea of a monastery--mr. newman writes from littlemore, april , --dr. pusey consults mr. hope on his letter to the archbishop of canterbury--dr. pusey and the jerusalem bishopric-- letters of archdeacon manning, mr. w. palmer, sir john t. coleridge, sir f. palgrave, bishop philpotts, and count senfft, on mr. hope's pamphlet. two days after the date of the letter to lady henry kerr, given in the preceding chapter (dec. , ), took place the publication of mr. hope's pamphlet on the anglo-prussian bishopric of jerusalem. it may be described as a learned and very closely reasoned argument against the measure; and a dry (even if correct) analysis of it would be of little biographical interest, especially as mr. hope's views on the question have already been abundantly illustrated from unpublished materials. i therefore refer those of my readers who wish for more extended information to the pamphlet itself, but shall quote from the postscript to the second edition [footnote: _the bishopric of the united church of england and ireland at jerusalem_, considered in a letter to a friend, by james r. hope, b.c.l., scholar of merton, and chancellor of the diocese of salisbury. second edition, revised, with a postscript. london: c.j. stewart. .] an eloquent passage on canon law, which is as characteristic of the writer as anything i have yet been able to produce, and exhibits, i think, in a striking manner how singularly this austere subject constituted at the time the poetry of his life, and how largely the conflict between the principles of catholic jurisprudence and anglicanism must have influenced the reflections which ended in his conversion. mr. hope here refers to some remarks on his pamphlet which had appeared in one by the rev. frederick denison maurice, entitled 'three letters to the rev. w. palmer, &c.' (rivington: ). _value of the science of canon law._ [mr. maurice] sets all lawyers at nought, and canonists he utterly despises. hastily, indeed, i think, and for the purpose of the moment only, can he have given way to such feelings, for he needs not that i should tell him that the church of christ rests not upon speculative truth alone, but upon the positive institutions of our lord and his apostles. surely, then, to trace those institutions from the lowest point at which they come into contact with human existence, up to the highest to which our eye can follow them, the point of union with the unseen world in which they take their rise, and from which they are the channels of grace and truth and authority to the souls of men--to trace, i say, the outward and the visible signs of sacraments, of polity, of discipline, up to the inward spiritual realities upon which they depend, which they impart and represent to faith, or shelter from profanation; to study the workings of the hidden life of the church by those developments which, in all ages and countries, have been its necessary modes of access to human feeling and apprehension; to systematise the end gained; to learn what is universal, what partial, what temporary, what eternal, what presently obligatory, and wherefore; surely a science such as this, so noble in its object, so important in its practical bearings upon the unity and purity of the church, and upon her relations to the temporal power, is not one of which mr. maurice would deliberately speak evil. yet this is the science of the canonist. [footnote: mr. hope's pamphlet on the _jerusalem bishopric_, nd ed., p. .] there are still portions of his correspondence with mr. newman, belonging to the same period and subject, which must not be withheld:-- _j. r. hope, esq. to the rev. j. h. newman._ stone buildings, lincoln's inn: december , . dear newman,--your speedy reply and return of my proofs was very kind. the _hard_ passages i did not know how to make easy, as they are pure law, so have left them.... i hear that the bishop of london refused a man orders last week on three points--eucharistic sacrifice in _any sense_, real presence in elements, grace in orders. the second point (being also the bishop of winchester's) i have illustrated in a note to my pamphlet (very briefly) by reference to augsburg confession. you see the young prince is to have a r. catholic sponsor on one hand, and the king of prussia on the other. this is a good balance, though the canon tolerates neither.... ever yours, j. k. hope. _the rev. j. h. newman to j. r. hope, esq._ my dear hope,--... you take the canons of as _legal authority_, i see. this has been a bone in my throat. i _wish_ them to show the animus of our church, but directly you make them authority, the unhappy ward is _ipso facto_ excommunicate for having been to oscott, until he repent of his wicked error. but there is no resisting law. palmer's 'aids to reflection' contain some very valuable documents. what the bishops are doing is most serious, as well as unjustifiable, as i think. really one does not know but they may meet in council and bring out some tests which will have the effect forthwith of precipitating us, and leaving the church clean protestant. pray, does a _majority_ bind in such a council? i mean in the way of canons. can a majority determine the doctrine of the church? if so, we had need look out for cheap lodgings.... ever yours, john h. newman. oriel college: december , . _j. r. hope, esq. to the rev. j. h. newman._ palace, salisbury: december , . dear newman,--i am again settled here for ten days or so.... as to the bishops meeting and making tests, they can _in law_ do nothing, except in convocation, with the presbyters and under licence of the crown. they may, however, as heads of dioceses, agree to enforce particular things, but there is not, i think, sufficient unity amongst them at present to allow of this. the jerusalem business i hope is yet to be of good service to us, by rallying men of various shades against it, and by making the bishops stand up against what cannot be called otherwise than usurpation of their rights by the archbishop and the bishop of london. the bishop of exeter, in acknowledging (to badeley) the receipt of my pamphlet, says:-- 'would that those who direct proceedings of this hazardous and most questionable character may take warning from the effects of their inconsiderateness on this occasion! i doubt whether any three bishops were consulted, or even informed, before the measure was completed.' this looks, i think, like action.... when i publish again, i should like to bring out more fully the bearing of the augsburg confession on the thirty-nine articles. i perhaps overrate the importance of this point, but it seems to me to put tract in great measure under the sanction of the archbishop and bishop of london. if you think of doing anything more about tract , perhaps (which would be far better) you would take this up. if not, do you think you could get any one to collect for me the sense of luther, melanchthon, &c., as to the meaning of the chief articles of the aug. conf. i have always understood consubstantiation to be properly held under that document, and, if so, the admission of it with our articles will appear to many people very awkward. you must not think me unreasonable for thinking that you can get this done for me (as you did the search about canons) at oxford. were our colleges what they ought to be, there would be in each a concurrence of labour whenever required, and i believe that you have men about you who have the feeling from which this (if ever it does) must spring. i am not without hope that some public move may be made about the bishopric. what say you to an address to the crown, praying it to license the discussion of it in convocation? i think some bishops and many clergy would join in this, and it would, i suppose, be very 'constitutional.' i have not, however, looked up the formal part yet. tell me what you think of the thing, and i will consider it further.... (signed) j. r. hope. _the rev. j. h. newman to j. r. hope, esq._ january , . my dear hope,--a happy new year to you and all of us--and, what is even more needed, to the english church. i am afraid of moving about convocation. not that we should not be in safer hands than in those of the bishops, but, though it restrained their acts, it would abridge our liberty. or it might formally recognise our protestantism. what can we hope from a body, the best members of which, as hook and palmer [of worcester coll.], defend and subscribe to the jerusalem fund...? therefore i do not like to be _responsible_ for helping to call into existence a body which may embarrass us more than we are at present. i think your [greek: topos] about the augsburg confession a very important one, and directly more men come back will set a friend to work upon it. i am almost in despair of keeping men together. the only possible way is a monastery. men want an outlet for their devotional and penitential feelings, and if we do not grant it, to a dead certainty they will go where they can find it. this is the beginning and the end of the matter. yet the clamour is so great, and will be so much greater, that if i persist, i expect (though i am not speaking from anything that has _occurred_) that i shall be stopped. not that i have any intention of doing more at present than laying the foundation of what may be. ... are we really to be beaten in this election [for the poetry professorship]? i will tell you a secret (if you care to know it) which not above three or four persons know. we have promises. is it then hopeless? ... i don't think our enemies would beat ; at least, it would be no triumph.... the bishop of exeter has for these eight years, ever since the commencement of the ecclesiastical commission, been biding his time, and the duke of wellington last spring disgusted him much. this both makes it likely that he will now move, and also diminishes the force of the very words you quote, for peradventure they are ordinary with him. i have good hopes that he will. ever yours, john h. newman. the experiment of offering to minds which had lost all sympathy with protestantism, yet were unable to close with rome, an imitation of the monastic life by way of shelter from the rude checks which their aspirations sustained in the world without, seems to have answered for a time, and possibly retarded for about three years that rush of conversion which made such an epoch in the history even of the church. this may be inferred from the next letter, written shortly after mr. newman and his disciples were regularly settled at littlemore. i am not aware what the report was which he so emphatically denies. _the rev. j. h. newman to j. r. hope, esq._ april , . _dabam è domo s. m. v. apud littlemore._ my dear hope,--does not this portentous date promise to outweigh any negative i can give to your question in the mind of the inquirer? for any one who could ask such a question would think such a dating equivalent to the answer. however, if i must answer in form, i believe it to be one great absurdity and untruth from beginning to end, though it is hard i must answer for _every_ hundred men in the _whole_ kingdom. negatives are dangerous: all i can say, however, is that i don't believe, or suspect, or fear any such occurrence, and look upon it as neither probable nor improbable, but simply untrue. we are all much quieter and more resigned than we were, and are remarkably desirous of building up a position, and proving that the english theory is tenable, or rather, the english state of things. if the bishops let us alone, the fever will subside. [after a few words on business] i wish you would say how you are. ever yours, john h. newman. early in came out dr. pusey's 'letter to the archbishop of canterbury on some circumstances connected with the present crisis in the church.' in the preparation of this important pamphlet dr. pusey sought the advice of mr. hope, and the letter in which he asked it must be placed before the reader as an evidence of the value attached to mr. hope's opinion in the counsels of the party. _the rev. dr. pusey to j. e. hope, esq._ my dear hope,--you will be surprised that i should consult you as a layman and a younger man as to a work on the religious state of things, but i do it on n.'s suggestion, as seeing and being able to judge of men's minds; and ye question is not as to _what_ is said, but whether it is expedient to say it, and for me; what will be its probable effect. the origin of it was my visit to addington last autumn: after my return harrison wrote me some long letters, recommending that one shd take occasion of ye bishops' charges, under wh people writhed so much, to make one's defence, show that one was not so unsound as one seemed, and plead for sympathy. [footnote: this fondness for the use of the indefinite pronoun very much characterised the puseyite dialect, as i have somewhere read that it did the jansenist. the _phase_ which it marked may he seen fully developed in the tract 'on reserve,' by isaac williams.] i was unwilling to leave what i was doing and put myself forward; but as h. told me that he had spoken on ye subject with ye abp, it seemed to come with his authority, so i set myself to it. it has been delayed until now, waiting in part for unpublished charges, and for ye documents about ye jerus. bpric. it is now about finished, and wd occupy about ten sheets; what i send is, then, not half. the object of ye analysis of the bishops' charges is to show that some do not object to our main principles, but to matters of detail; that others (as the bps of chester, winchester, calcutta) do not object to our principles at all, but to certain principles which they conceive to be ours. the effect of both, i hoped, wd be that our friends, who were fretted by these charges, wd see that neither we nor (wh alone signifies) catholic truth is condemned, that others mt be better disposed towards us, and that the hint mt be taken in some charges this year. anyhow, that there wd seem less of a consent of bishops agst us, i was rather sanguine about this part. then there follows something about the jerusalem bishopric and the east and lutheranism, my object being to say that things are safe so long as the bishops do not make any organic changes in our church, or she be committed to any wrong principle. i conclude with some pages meant incidentally to reassure persons about ourselves, and of our good hopes and confidence and love for our church. this i have been urged to do in some way or other by several, _e.g._ e. churton, confidence having been terribly shaken by golightly's wild sayings, and by the version put upon my own visits to ye convents. this i could do by implication without any formal profession. [illustration: private] newman was against it from the first; he thought h. wanted to commit me to say things which n. thought i could not say; in a word, to express h.'s own views. about this i did not feel any difficulty, for having put forth doctrinal statements in my two last letters, i did not feel called upon to do it again, and so i went on. n. now likes it much in itself; indeed, he tells me he likes it the best of anything which i have written, but does not feel his former opinion removed; but he wished me to take another opinion. people seem to like the notion. the only part about which i have any misgiving is in these first slips, lest the picture of the temptations to romanism should seem too strong; and yet, unless our bishops realise that this tendency has some deeper foundation than any writings of ours, what they will do will be in a wrong direction. for myself, of course, i do not care what people think of me; and, on the other hand, one does not like to waste what one has employed time upon; but i am quite willing to give it up and be still, if it seems best; of course, one should be very sorry to add to our confusions. no one has suggested the mere omission of ye romanist part. jelf only (who had seen that part only without some additions which i have since made, that i might not seem gratuitously to exalt rome to the disparagement of our own church) suggested that it be printed only to send to ye bishops. n. thinks this of no use. i have no other opinions. but i am entangling you with the opinions of others, when i meant to ask you yours simply. i know you will not mind ye trouble. yours affectionately, e. b. pusey. christ church: september . the romanist part, of course, has not ye abp's sanction, and it must be so expressed. in the date of the above letter 'september' is struck out; 'january' substituted, and ' ' added in mr. hope-scott's hand, i think. how this is to be explained i do not know, but dr. pusey can hardly have made such a clerical error. mr. hope-scott has endorsed the letter: 'i recommended publication, with some alterations and additions.--j. r. h.' whatever influence dr. pusey may at an earlier period have exercised on the religious views of mr. hope must have been a good deal shaken by his inclination in the first instance to favour the jerusalem bishopric, followed, indeed, by a disapproval, but one far short of the energy with which mr. hope himself combated the measure. _the rev. e.b. pusey to j.r. hope, esq._ my dear hope,--i thank you much for your 'letter,' which i had been looking for anxiously, but which by some mistake was not forwarded to me, so that i only saw it two days ago. it is very satisfactory to me; it seems quite to settle the point as to the duty of bp a. i was also very much cheered to see yr own more hopeful view of things in our church. i am a good deal discomforted by this visit of ye kg. of pr. it seems so natural for persons to wish that episcopacy shd be bestowed upon those who desire to receive; and people for ye most part have very little or no notion as to ye unsoundness even of the sounder part of ye g. divines. as far as i have heard of ye progress of truth there, the restoration of xty in some shape has been far more rapid than i anticipated or dared hope, the soundness of the restoration far less. yours affectionately, e. b. pusey. marine parade, brighton: january , . in another letter, dated sexagesima sunday [january ], , dr. pusey says:-- i do not know your [greek: topos] about ye augsburg conf. i have very little, next to nothing, about it. do not leave anything for me. each can do best what he feels most. i should be very sorry to take anything out of your hands; and altogether i can say ye less about this because, wretched as it would be that we should appear in ye e. connected with lutherans, i do not feel that it would introduce any organic change in us, and so cannot anticipate that it would. i see that the conf. of augs. does not express consubstantiation. art. x. may express catholic doctrine. i subjoin a few more letters from mr. hope's correspondence relating to his pamphlet on the jerusalem bishopric question, interesting as it is in itself, and forming so great a crisis in his religious history. _the ven. archdeacon manning [since cardinal archbishop of westminster] to j. r. hope, esq._ december , . my dear hope,--i have this moment ended your pamphlet, and will not wait for a cooler moment to thank you. i do so heartily. god grant we may be true and manly in affirming the broad rule of catholic order. i add my thanks to you in another shape. in your last three or four pages you and i were nearing each other's thoughts. it is refreshing to find an answer at a distance. forgive my long neglect of the enclosed paper, which after all bears only my name, and probably too late for use. ever yours, dear hope, most sincerely, h. e. manning. _the rev. william palmer (of magdalen college, oxford) to j. r. hope, esq._ mixbury, near brackley: december , . dear hope,--i am much obliged to you for sending me a copy of your letter, which i have read with the greatest pleasure.... i see that in the statement just published by authority, _no prussian_ documents are given. i think your letter will be a puzzling one; but the spirit of practical protestantism is subtle and versatile, and able to set aside everything--laws, principles, rubrics, and canons. else i do not see how the mischief which i apprehend could be realised. ever yours sincerely, w. palmer p.s.--i am glad you think my pamphlet may be useful. we have taken entirely different sides of the same subject; i the theoretical (as it seemed to me), and you the practical view of the question. _sir john taylor coleridge to j. r. hope, esq._ my dear hope,--many thanks for your letter, which i have read through with, i may say, a painful interest. of course, in a matter so difficult in itself, and so new, i must confess, to me, i do not take on me at once to pronounce that you are right, but i cannot at present find out where you are wrong; and i am the more inclined to think that you may be right because i see in the act just words enough to satisfy people rather precipitate that the prussian scheme might be carried through safely on them. 'spiritual jurisdiction,' 'over other protestant congregations,' would seem to ordinary minds enough--till it was further considered _how_ the english bishop was to work out the scheme by virtue of these words, and yet be consistent with his own engagements. i shall not be sorry, however, to find that you are answered; not that i wish to accomplish, or seem rather to accomplish _any_ end by a disorderly and indigested attempt at union; nor do i think _this_ thing of itself so important as many do: still it is one which very much arrests the imagination, and excites strong devotional feeling; and i rather looked on it as leading to more important matters with prussia itself. i cannot, too, help a little more personal feeling for the bishop than it fell within our plan to express--a good and pious man, i believe, but not by intellect or previous habits fitted to meet such emergencies as you place before him. very truly yours, j. t. coleridge. december , . montague place. _sir francis palgrave, k.h. to j. r. hope, esq._ rolls house: january , . my dear sir,--i ought before this to have thanked you for your kindness in sending me your most able letter, but i did not like to do so until i had read it with that attention which it deserves. it is difficult to understand how your arguments can possibly be shaken. the statute hen. viii. c. evidently relates only to such dispensations upon the suit or for the benefit of individuals as had been theretofore usually issued by the roman chancery, and to wrest it into the power of establishing an _uncanonical_ see appears a most bold attempt. nothing would more clearly show the true relation of the church of england to 'other protestant churches' than a reprint of the _whole_ proceedings of the convocations from william and mary to their extinction-- adding proper notes. yours ever truly, francis palgrave. _the right rev. dr. philpotts, bishop of exeter, to j. r. hope, esq._ bishopstowe, torquay: november , . my dear sir,--permit me to ask you whether you can receive and answer a case of ecclesiastical law? that you can answer it better than any other man i have no doubt; but can you receive the case _professionally_, so as to enable a bishop to show your opinion as his authority for action? i have never thanked you for your kindness in sending me a copy of the second edition of 'the bishopric of the u. c., &c., at jerusalem,' for i am ashamed to own i have never, till this day, read the new matter which it gives to us. accept now my hearty thanks for your kindness to me in sending to me a copy, and my still heartier acknowledgments of your invaluable service to the church in furnishing it with such a lesson. you have, of course, seen the 'alterius orbis papa's' letter of june to the king of prussia, and have, with me, wondered at the mixture of temerity and cowardice (which latter quality, by the way, is the rashest of all feelings) indicated in such a mode of escaping from the difficulties by which he was pressed. i grieve for this marvellous indiscretion. but i am amused by the bolder defiance of all consistency which is exhibited by his prime adviser, who, while he prompts his chief to trample rubrics, canons, statutes, under his feet, commands his own clergy to observe them 'with chinese exactness.' i went to your second edition, in order that i might find your promised remarks on the need in which the church stands of a church legislature. i have read them with great gratification, and implore your close attention to the subject. my clergy are, i believe, about to meet and to address me to urge on the archbishop their earnest desire of leave from the crown for convocation to consider the best means of altering its own constitution, or otherwise devising a new body empowered and fitted to act synodically. this is, at present, somewhat of a secret, but it will in a few days, i believe, transpire. from other quarters, i hear, similar proceedings may be expected. the bishop of llandaff tells me that he makes the necessity of a church legislature one topic in his charge. yours, my dear sir, most faithfully, h. exeter. [p.s.] pray tell me whether you think the argument in my charge on escott _v_. mastin is now tolerably effective? what 'oath of obedience' is the ordained german to take to the bishop? not canonical--that is plain. what oath can it be? of course, it will hardly be an absolute promise on oath to obey all commands. all _lawful_ commands would involve a question--what are lawful commands? who is to judge? what law is to be the rule? somebody named by the king is to attest for the candidates their qualification for the _pastoral office_; but the bishop is 'to convince himself of their qualifications for the _especial_ duties of their office, of the purity of their faith, and of their _desire to receive ordination_ at his hands!' what is meant by the clergyman's preparing candidates for confirmation in the _usual_ manner? usual _where_? in prussia or in england? have they baptised godfathers in prussia? if they have not, how can they be confirmed according to the liturgy of the u. c. of e. and i.? to these letters from such distinguished co-religionists of mr. hope's, all belonging, with various shades of difference, to his own religious party, i add a portion of one, bearing on the same subject, from a catholic and foreign friend of his who has been mentioned in a previous chapter,[footnote: vol. i. chap. xiii. p. .] count senfft-pilsach. the contrast will be interesting; and it is also interesting to record a specimen of an influence, no doubt beginning to be more and more felt, though years had to pass before the result was visible in action. count senfft, though an active diplomatist, a friend of metternich's, and quite in the great european world, was an example of the union, so often found in the lives of the saints, of deep retirement and devotion in the very thick of affairs; and we may be sure that his prayers for mr. hope were faithfully applied to assist his arguments. _count senfft-pilsach to j. r. hope, esq_. la haye: janvier, mon cher hope,-- ... j'ai lu avec un vif intérêt vos réflexions sur ce nouvel evêché de jérusalem, dont on paraît vouloir faire un lien entre l'�glise anglicane et le protestantisme evangélique de prusse, en cherchant à vivifier les ossemens arides de celui-ci par une sorte de greffe de votre episcopat auquel nous contestons encore, comme question, la continuité de la succession apostolique. si on réussiroit dans ce projet, une partie de vos objections pourroient se résoudre. mais m. bunsen, l'artisan de la complication de cologne, n'a pas la main heureuse, et la fécondité de son génie, secondant son ardeur de courtisan, pourroit bien, en prétendant servir les tendances vagues de piété de son maître, embarquer celui-ci dans les plus graves difficultés en provoquant l'opposition des vieux protestans réunis aux rationalistes allemands. 'quid foditis vobis cisternas dissipatas?' o mon ami! comment s'arrêter à quelques abus plus apparens peut-être que réels, que l'�glise supporte çà et là sans les autoriser, et ne pas reconnoître cette admirable unité de doctrine, cette continuité de la tradition, qui caractérise la cité bâtie sure la montagne, figure de la véritable �glise selon l'�vangile. certes ce n'est pas sous la domination de césar qu'on pourroit aller chercher l'�pouse légitime de j. c. mais doit-on espérer la trouver dans la création combinée de la volonté tyrannique de henri viii. et de la politique d'elisabeth, tandis que la doctrine comme la discipline du concile de trente ne vous laisse rien à désirer, et conquiert déjà vos suffrages?... j'ose compter partant sur votre intérêt amical, et vous connoissez les sentimens sincères d'attachement et de respect avec lesquels je suis à jamais tout à vous, senfft. chapter xix. - . oxford commotions of - --mr. newman's retractation--correspondence of mr. newman and j. r. hope on the subject--mr. hope pleads for mr. macmullen--dr. pusey suspended for his sermon on the holy eucharist--seeks advice from mr. hope--mr. newman resigns st. mary's--correspondence of mr. newman and mr. hope on the 'lives of the english saints'--mr. ward's condemnation--mr. hope sees the 'shadow of the cross' through the press-- engaged with 'scripture prints,' 'pupilla oculi,' &c.--lady g. fullerton's recollections of j. r. hope--he proposes to make a retreat at littlemore. it results in general from the documents furnished in the preceding chapter, that mr. hope's confidence in the anglican church had sustained a severe shock by the jerusalem bishopric movement; and from about the year he seems to have thrown himself with increasing energy into his professional occupations, not certainly as becoming less religious (for his was a mind never tempted to the loss of faith), but as being deprived of that scope which his convictions had formerly presented to him in the pursuit of ecclesiastical objects. it seems probable, also, that the same cause was not unconnected with his entering, some years later, into the married life; the news of which step is known to have fallen like a knell on the minds of those who looked up to him and shared his religious feelings, as it appeared a sign that he no longer thought the ideal perfection presented by the celibate life--which he certainly contemplated in - --was congenial with the spirit of the church of england. that communion was now losing her hold upon him, though he still could not make up his mind to leave her, and might conceivably never have done so but for events which forced the change upon him at last. his professional career and his habits in domestic life will require to be separately described; for, though of course they proceeded simultaneously with a large part of that phase of his existence which is now before us, it would only confuse the reader to pass continually from one to the other. i propose, therefore, without any interruption that can be avoided, to go on with the history of his religious development up to the period of his conversion. the year , commencing, as we have seen, with the storms of the jerusalem bishopric movement and the poetry professorship contest, agitated also, towards the end of may, by a movement for the repeal of the statute of censure against dr. hampden, passed off, for the rest, quietly enough-- at least, mr. hope's correspondence shows little to the contrary; but was marked by much disturbance, commencing early with mr. newman's 'retractation,' which the great leader announced to mr. hope in the following letter a few days before that document appeared in the 'conservative journal:'-- _the rev. j. h. newman to j. r. hope, esq._ littlemore: in fest. conv. s. pauli, . my dear hope,--in return for your announcement of some change of purpose, i must tell you of one of my own, in a matter where i told you i was going to be very quiet. my conscience goaded me some two months since to an act which comes into effect, i believe, in the _conservative journal_ next saturday, viz. to eat a few dirty words of mine. i had intended it for a time of peace, the beginning of december, but against my will and power the operation has been delayed, and now, unluckily, falls upon the state of irritation and suspicion in good anglicans, which bernard smith's step [footnote: the conversion of the rev. bernard smith, fellow of magdalen college, oxford.] has occasioned. i had committed myself when all was quiet. the meeting of parliament will, i hope, divert attention. ever yrs, john h. newman. p.s.--i am publishing my univ. sermons. you got a headache for _one_-- it would be an act of gratitude to send you _all_. shall i do so? _j. r. hope, esq. to the rev. j. h. newman._ stone buildings, linc. inn: feast of purification [feb. ], ' . dear newman,--you will think me ungracious for having so long delayed my answer to your last, but i did not get hold of the _conservative journal_ till monday, and have been very busy since. perhaps you will like to know what effect your article has produced on me. simply this: it has convinced me that you are clearing your position of some popular protections which still surrounded it. beyond this i do not see. i mean it does not show me that, esoterically, you have made any great move, nor yet that, to the world at large, you are disposed to do more than say, 'do not cry me up as a champion against popery; for the rest, you may judge of me as you please.' people whom i have heard speak of it (few, perhaps, but fair samples) are rather puzzled than anything else. i give you this merely as gossip, and not as asking whether my construction is right, though if you think it material or useful to tell me, of course i shall be glad. i need not say that i shall be very thankful for a copy of your sermons-- that is, if you will write my name in it yourself; otherwise i will buy the book, for rivington's 'from the author' does not fix the stamp which i chiefly value. do you observe in the papers that sir r. p. is designing _great_ things for the church? it gives me some hopes that they will also be _good_, to see that gladstone is in his councils. we shall have much ado about the eccl. courts bill, which, i believe, is certainly to come on. i am in some hopes we may make it an instrument for drawing a line between us and the dissenters, but must not be sanguine. believe me, dear newman, ever yrs truly, james r. hope. rev. j. h. newman. mr. newman wrote in explanation as follows:-- _the rev. j. h. newman to j. r. hope, esq._ littlemore: february , . my dear hope,--it is amusing in me to talk of being tired of giving explanations, when i have neither given nor mean to give any; but so it is, whether my hand aches, or i am sick of the subject, i feel as if i have given a hundred. since you ask me, i will say, as far as i can collect my thoughts on an instant, that my reason for writing and publishing that notice was (but first i will observe that i do not wish it talked about, though it is not worth while going into the reasons why i did it in the way i have. i did it thus after a good deal of thought and fidget, and not seeing any better way, _i.e._ clearer of objections)--but my reason for the _thing_ was my long-continued feeling of the great inconsistency i was in of letting things stand in print against me which i did not hold, and which i could not but be contradicting by my acting every day of my life. and more especially (_i.e._ it came home to me most vividly in that particular way) i felt that i was _taking people_ in; that they thought me what i was not, and were trusting me when they should not, and this has been at times a very painful feeling indeed. i don't want to be trusted (perhaps you may think my fear, even before this affair, somewhat amusing); but so it was and is; people _won't_ believe i go as far as i do--they will cling to their hopes. and then, again, intimate friends have almost reproached me with 'paltering with them in a double sense, keeping the word of promise to their ear, to break it to their hope.' they have said that my words against rome often, when narrowly examined, were only what _i_ meant, but that the effect of them was what _others_ meant. i am not aware that i have any great motive for this paper beyond this--setting myself right, and wishing to be seen in my proper colours, and not unwilling to do such penance for wrong words as lies in the necessary criticism which such a retractation will involve on the part of friends and enemies; though, since nothing one does is without a meaning [that is, higher than one's own], things may come from it beyond my own meaning. thanks for ... the information from newspapers, which you give me, of our hopes from sir r. p., which i had not seen in them. by-the-bye, in the paper, for 'person's respect' near the end, read 'persons i respect;' and 'to the editor' is fudge. ever yours, j. h. newman. p.s.--thanks for your flattering answers about my book. it must go, however, from rivington's with 'from the author,' and i will add my own writing when we meet. since you have had a specimen of the book (dose?), i may add, in opposition to you, that it will be the best, not the most perfect, book i have done. i mean there is more to develop in it, though it is _im_perfect. [footnote: a week later (february , ) he writes to mr. hope: 'my university sermons are the least theological book i have published.'] the famous case of macmullen _versus_ hampden was disturbing the university for most of the latter half of the same year . i can only give a mere chronological outline of it, which may assist such readers as wish to pursue the subject in consulting other sources of information. the regius professor of divinity, dr. hampden, had refused to act as moderator in the schools, to enable the rev. e. g. macmullen, fellow of corpus christi college, to make his exercises for the degree of b.d. [mr. macmullen, it should be remarked, was a strong opponent of the project at that time before the university, mentioned a few pages back, to reverse the condemnation which had been passed on dr. hampden when he was first appointed regius professor of divinity.] mr. macmullen, on this refusal, brought an action into the vice-chancellor's court on may , , where, on june , dr. kenyon of all souls' presiding, mr. hope appeared for mr. macmullen, dr. twiss on the other side. dr. kenyon pronounced in his favour on certain amended articles. dr. twiss appealed to the delegates of congregation (none of them lawyers), who heard the appeal on november , sitting from ten in the morning till seven at night. mr. erle and dr. twiss both spoke against the articles, and were replied to by mr. hope. the court ultimately gave judgment against the articles, reversing dr. kenyon's decision, and gave costs against mr. macmullen. [footnote: for this outline of the proceedings in macmullen _v_. hampden, i am indebted to accurate memoranda kindly furnished me by mr. david lewis, late fellow of jesus college, oxford.] mr. badeley's bitter comment will amuse the reader: 'mischievous idiots! and so all the conclusive arguments you put before them, are set at nought, and the battle is to be fought again!' [footnote: mr. badeley to mr. hope, january , ] however, there was no further litigation, and in the end mr. macmullen succeeded in obtaining his degree, the old form of disputations for that purpose being restored, which has ever since been in force. it should be added that mr. hope's services in this case, undertaken amidst all the pressure of his ordinary legal work, were gratuitous. in the summer of took place another critical moment of the strife in dr. pusey's suspension from preaching, by sentence of the vice-chancellor's court, for his sermon 'on the holy eucharist a comfort to the penitent.' in the question of his appeal against this, which was matter of anxiety for more than a twelvemonth, it is almost needless to say that he sought the advice of mr. hope. the everett affair, on commemoration day (june ), will have its place in every chronicle of the movement. this was a protest on the part of members of the tractarian party against an honorary degree conferred in the teeth of a demand for scrutiny (which, however, it was asserted had not been heard in the din), on the american envoy, mr. everett, who was a unitarian. mr. hope, however, was not present; and i mention this only as one of the many signs of the times which were then rapidly accumulating. nor did he take any part in the opposition made in the following year to dr. symonds' election as vice-chancellor, though he was consulted, in the law of the case, with mr. badeley and dr. bayford. it ended in a crushing defeat of the tractarians, who were beaten by a majority of against . in september mr. newman resigned the vicarage of st. mary's. on this step mr. hope, writing to him on september , says that he had not differed from him about it, but, 'as to the general tendency of which you described the increase [mr. newman's expression (september ) was: 'the movement is going on so fast that some of the wheels are catching fire'], all i can do is to sit still and wait the issue.' the 'lives of the english saints' were at this time in preparation, the importance of which in the history of the movement is too well known from cardinal newman's 'apologia' and from other sources to require me to enlarge upon it. at length there was no disguise or reservation, but sympathy was openly avowed by members of the anglican church for the whole spirit hitherto associated with the idea of 'the corruptions of popery'--as monasticism, the continued exercise of miraculous power in the church, finally, the supremacy of the holy see. from a copious correspondence which followed between the two friends, i extract, as usual, such portions as will throw most light on the progressive change in mr. hope's religious convictions. his sense of prudence, and the bias derived from his particular legal studies, restrain, rather curiously, the inclination which his feelings in other directions show; but it is best to let him speak for himself:--_the rev. j. h. newman to j. r. hope, esq_. littlemore: nov. , ' . my dear hope,--[after stating the perplexity he felt on the question of stopping the 'lives,' which appeared to present itself in consequence of an objection expressed by dr. pusey, in conversation with mr. hope, against the roman tone which had been manifested, mr. newman continues:] i did not explain to you sufficiently the state of mind of those who are in danger. i only spoke of those who are convinced that our church was external to the church catholic, though they felt it unsafe to trust their own private convictions. and you seemed to put the dilemma, 'either men are in doubt or not: if in doubt, they ought to be quiet; if not in doubt, how is it that they stay with us?' but there are two other states of mind which might be mentioned. . those who are unconsciously near rome, and whose _despair_ about our church, if anyhow caused, would at once develop into a state of conscious approximation and _quasi_-resolution to go over. . those who feel they can with a safe conscience remain with us, _while_ they are allowed to testify in behalf of catholicism, and to promote its interests; _i.e_. as if by such acts they were putting our church, or at least a portion of it, in which they are included, in the position of catechumens. they think they may stay, while they are moving themselves, others, nay, say the whole church, towards rome. is not this an intelligible ground? i should like your opinion of it.... ever yours sincerely, john h. newman. _j. r. hope, esq. to the rev. j. h. newman_. stone buildings, linc. inn: nov. , ' . dear newman,--... as to the roman leaning, no doubt your 'lives,' at least many of them, must evince it; no doubt also that, unless carefully managed, it will give offence. but may not caution obviate the latter? is it not possible to _commence_ by lives which will not at once bring the whole set into popular disrepute? the less palatable ones being kept for a more advanced stage. may it not also be provided that in an historical work, a purely historical character shall be given to what as matter of fact cannot be denied, and which can only be objected to when it is adopted by the writers as a matter of principle in which they themselves concur? to the asceticism, devotion, and anti-secular spirit of the english saints we are, under every point of view, entitled to refer; and if any part of these virtues was displayed in necessary relation to rome, or to roman institutions, this in a portraiture of their lives cannot be omitted, but certainly need not be canonised as amongst their merits. it seems to me possible simply to take the church of their times as _the_ church, without entering into the question whether any of the conditions under which it then existed are necessary for its existence now. and so their acts done in relation to the church of their day may be dwelt upon, while the further question whether the church of our day is capable of eliciting such acts may be left to the judgment of the reader. i am not sure that i have made myself intelligible in this, and still less whether it is worth your reading, but i fancied that you wished an opinion, and i give it, _valeat quantum_.... yrs ever truly, james r. hope. rev. j. h. newman. _the rev. j. h. newman to j. r. hope, esq._ littlemore: nov. , . my dear hope,-- ... you have not gone to the bottom of the difficulty. it is very easy to say, give facts without comment; but in the first place, what can be so dry as mere facts? the book won't sell, nor deserve to sell. it must be ethical; but to be ethical is merely to colour a narrative with one's own mind, and to give a _tone_ to it. now this is the difficulty, altering this or that passage, leaving out this or that expression, will not alter the case. i will not answer for being aware of the tone in myself. pusey put his finger on passages which i had not thought about. is he to be ever marking passages? if so, he has the real trouble of being editor, not i. _naturam expellas furca_, &c. is the pope's supremacy the only point on which no opinion is to be expressed? if so, why? it is not more against the articles to _desire_ it than to desire monachism. will it offend more than others? i will not limit certainly the degree of disgust which some people will feel towards it, but do they feel less towards the notion of monks, or, again, of miracles? now church history is made up of these three elements--miracles, monkery, popery. if any sympathetic feeling is expressed on behalf of the persons and events of church history, it is a feeling in favour of miracles, or monkery, or popery, one or all. it is quite a theory to talk of being ethical, yet not concur in these elements of the narrative--unless, indeed, one adopts milner's or neander's device of dropping part of the history, praising what one has a fancy for, and thus putting a theory and dream in the place of facts. but it is bad enough to be eclectic in _doctrine._ next it must be recollected how very much depends on the disposition, relative prominence, &c., of facts; it is quite impossible that a leaning to rome, a strong offensive leaning, should be hidden. and then still more it must be recollected that a _vast_ number of questions, and most important ones, are decided this way or that on antecedent probabilities, according to a person's views, _e.g._ the question between st. augustine and the british bishops--of easter--of king lucius, &c. &c. opinion comes in at every step of the history. from what i have said you will see that i consider it impossible to choose _easy_ 'lives' for the first of the series; there are none such, or if there be a few, when can i promise to have them ready? i suppose bede must be pretty easy. keble has it. i do not expect him to send it to me for several years, with his engagements. take missions, take bishops, the pope comes in everywhere. go to aldhelm and his schools; you have most strange miracles. try to retire into the country, you do but meet with hermits. no; miracles, monkery, popery, are too much for you, if you have any stomach.... the life p. looked at, st. stephen's, was taken as having hardly, if at all, any miracle in it. if he thinks it will give offence, doubtless the others will still more. you see, in saying all this i am not deciding the question whether the work is to be done _at all._ on that point i have had great doubt since p.'s objection. only to do it without offence is impossible, and the more so because, in parts at least, it is likely to be a very taking work.... and then so many 'lives' are in progress or preparation, that it is most unlikely the work will be stopped; others will conduct it instead of me who will go further; and though this is a bad reason for doing oneself what one feels a misgiving in doing, it is a good reason when one feels none at all.... if the plan is abandoned, this significant question will be, nay, is already asked--'what, then, cannot the anglican church bear the lives of her saints?' ever yrs, john h. newman. _j.r. hope, esq. to the rev. j.h. newman._ stone bdgs, linc. inn: nov. , ' . dear newman,--your last shows me plainly what i had not before understood, that the question of the 'lives' depends immediately upon that larger one which your previous letter had mooted, and that to solve it one must know more than i do of the conclusions at which you have arrived as to the claims of rome, and as to the mode, time, and circumstances in and under which those claims ought to be recognised. i feel therefore very incompetent to offer any further suggestion. when i last wrote i thought the questions separable, and meant that the roman parts of your histories should be treated dramatically (if i may so say), being represented really and faithfully, but only as the scenery in which the actors stood. your letter shows me that this cannot be, unless your writers have more self- command, and more disposition to exercise it than men in earnest can be expected to have. i must therefore ask, what is your general view as to rome? is union with it immediately _necessary_? or is it only _desirable_--under new circumstances and at some distant period? if the former, then one would think that the question should be openly and professedly discussed, the arguments given and the authorities stated. if the latter, i should imagine that much remains to be done, in the way of raising the general tone of our church in matters of faith and practice, before it can be fit to deal with such a question; and though you think monachism, miracles, and popery inseparably allied, yet i feel convinced that there are many minds prepared to consider the two former which have no disposition to the latter. on either view, then, i think that a work which is addressed only or principally to men's feelings would be mistimed--it would not convince of the necessity, and it would find but a small number of men disposed at present to give it their sympathy. there are, indeed, those other considerations which you mention respecting the minds which would find relief in being allowed to dwell upon the subject, and so might be the better persuaded to remain within our communion; but, on the other hand, there is the risk of provoking such conduct on the part of the bishops and others as would drive some out, and render the position of those who remained more difficult than ever. and surely it would be most unfair to take the measure of what the church of england allows on this or any other difficult point in theology from what might happen to be the view of men such as our present rulers, upon whom the whole question has come unawares, and whose prejudices upon this point in particular, backed by the secular policy of the state for years, would be pretty sure to lead them to some active, and probably united censure. i wish therefore, much, that minds of this class could be persuaded that it is not the church of england which they are testing, but a disorderly body which ten years ago did not know what it was, and is now only gradually becoming conscious; and that if they can satisfy themselves that the views they entertain are compatible with what they deem the true theory of the church of england, they would be content to hold them quietly for the present, and not risk themselves and others upon so doubtful a venture. this, i think, is all that i can say--being confessedly in the dark upon the most material points; but if you should think it useful either to myself or to others to give me a full statement you shall have my best judgment. your confidence i have no other claim upon than that which arises from my disposition to put confidence in you--to think that you know better than any one else the real difficulties of our present position, and that you can look at the remedy, however painful, firmly and practically. whatever, therefore, approves itself to you, i am anxious to know, as furnishing for myself, if not the best conclusion, yet the best hope of a conclusion--the best track into which to let my thoughts run. but beyond what you may think good for me in these respects i have no right to ask, and i do not ask for your thoughts. they probably would be above and beyond me, and the responsibility of knowing them would outweigh the use which i should be able to make of them. [footnote: to this letter of mr. hope's i do not find a reply of mr. newman's until november , when he apologises for having kept him in suspense, adding: 'so far from your not having written to the purpose, you laid down one proposition in which i quite acquiesce; that the subject of the supremacy of rome should be moved _argumentatively_, if at all. i felt i had gained something here, and rested upon it, and gave up answering you, as it turns out, selfishly.' at the end of the letter he says: 'as to myself, i don't like talking; when we meet we shall see how we feel about it.' his reserve may, i think, be safely accounted for by his great unwillingness that such a man as mr. hope should be swayed by him to an act to which, as yet, he himself did not feel himself called.] yrs ever truly, james r. hope. rev. j. h. newman. in a letter to mr. newman dated the following day, november , mr. hope criticises, on the side of caution, various passages in the 'life of st. stephen harding' (by mr. j. d. dalgairns, afterwards so well known as father dalgairns, of the london oratory), the first and most celebrated of the series, proofs of which mr. newman had sent to him for his opinion. these criticisms chiefly relate to expressions which might offend ordinary anglican readers, and which mr. hope proposed to soften. mr. newman in the end noted against almost all these expressions _stet_. he remarks to mr. hope (december ): 'it seemed to me that, considering the _tone_ of the whole composition, an alteration of the word (_e.g._) "merit" was like giving milk and water for a fit of the gout, while it destroyed its integrity, vigour--in a word, its go.' again: 'i am convinced that those passages are _not_ flying in people's faces, but are parts of a whole, and express ideas which cannot _otherwise_ be expressed.' these points were rather matter of prudence as viewed by mr. hope; on two others, touching the questions of 'exemptions' and 'impropriations,' mr. hope appears to have been himself unable to go along with the view of the writer of the 'life of st. stephen,' whom he considered to defend the _principles_ of exemption too far. mr. newman here conceded some alterations, which, however, i am unable to state, not having the proof before me, which mr. hope does not quote, but, as finally given, the passages referred to may be found in the 'life of st. stephen harding,' pp. - and . in the same letter of december mr. newman informs mr. hope that he had resolved on giving up the 'lives' as a series, and publishing such as were in type, or were written, as separate works. his comment on the motives which had led him to this decision is of great interest:-- i assure you, to find that the english church cannot bear the lives of her saints (for so i will maintain, in spite of gladstone, is the fact) does not tend to increase my faith and confidence in her. nor am i abandoning _publication_ because i abandon this particular measure. rather, i consider i have been silent now for several years on subjects of the day, and need not fear now to speak.... if these ['lives,' as separate works] gradually mount up to the fulness of such an idea as the 'lives of the saints' contemplated in process of time, well and good. he had said in a letter to mr. hope of december : 'g.'s remarks have shown me the _hopelessness_, by delay or any other means, of escaping the disapprobation of a number of persons whom i very much respect.' this was in reply to a letter of mr. hope's of the same day, which i found it difficult to introduce in its chronological order, and which may conveniently be placed here, as mr. hope in it clearly shows that his sympathies, notwithstanding his difficulties, went with the 'lives,' and, like himself, backs his moral support with open-handed liberality:-- _j. r. hope, esq. to the rev. j. h. newman._ dec. , ' . dear newman,--i enclose the proofs and gladstone's remarks. the great point made by him here, as elsewhere, at present, is non-estrangement from the existing ch. of e.; and in this many who are disposed to quarrel with the reformation are yet heartily disposed to join. in fact, i suppose it will shortly become, if it be not already, the symbol of a party. to that party i do not feel myself at all strongly drawn, and therefore do not sympathise in g.'s views about the _life_; but if his views be a fair representative of the best class of opinions such as i allude to, you may conclude that the high anglicans will be against you. of the middle and low there never, i suppose, was a doubt. for my own part, i read the sheets greedily, and felt that they took me back to subjects which were once much in my thoughts, and ought never to have got so far out of them as they have. nor was i at all put out by the general tone which seems to me inseparable from the subject; but here and there are passages which i think needlessly direct and pointed, so much so indeed as to appear, merely in point of composition, abrupt and wilful. these i think i could point out. g., you see, thinks his objections separable from the main design, which seems to me hardly possible--perhaps you will think the same of mine, but they relate only to isolated passages, and rather to giving them obliqueness than to changing them altogether. however, i do not mean to say that i could suggest anything which would obviate g[ladstone]'s difficulties, and these are, after all, your main subjects for consideration. what effect they will have upon you i cannot certainly conclude, but in case they should incline you either to delay or to total giving up, i have only to say that i shall be glad to contribute one or two hundred pounds towards defraying the expenses.... in fact, if upon any public eccl. grounds the work is to be delayed or not to go on, i cannot see that my money could be more fitly bestowed than in facilitating the arrangement. yours ever truly, james r. hope. rev. j. h. newman. no need was eventually found for the liberal offer with which the above letter concludes. the following letter, though rather a long one, is certainly not likely to fatigue the reader, and seems almost necessary to be given, in order to complete this part of my subject:-- _the rev. j. h. newman to j. r. hope, esq._ oriel college: dec. , . my dear hope,--you have not understood me about gladstone, doubtless through my own fault. the truth is, i am making a great concession--not to him, but to my respectful feelings towards him. i thought you could see it, and only feared you would think it greater than it really was. so i tried to put you on your guard. . i withdraw _my name_ from _any plan_. this is no slight thing. i have frequent letters from people i do not know on the subject of the lives of the saints, and doubt not it is raising much talk and interest. a name always gives point to an undertaking--considering my connection with the tracts of the times, it would especially to this. you yourself and badeley (whom, please, thank for some kind trouble he has been at about a book for me) said, 'delay the plan, _for_ you will be putting _yourself_ at the head of the extreme party--the b[ritish] c[ritic] having stopped:' now, i am more than _delaying_, i am withdrawing my name. i am sure this is a great thing, even though my initials occurred to this or that life. . i have given up continuity, and that certain and promised. pp. were to come out every month, and the work was to go on to the end, except as unforeseen accidents interfered (as they have). now we know how difficult it is to keep people up to their work. the work is now left to the unpledged zeal of individuals. and there will be nothing methodical or periodical in it to force itself upon people. i do consider, then, i have given up a very great deal. but what i have not given up is the _wish_ that the work should be done; only i have put it under great disadvantages--so great that i do not think it ever will be done--at the utmost fragments will be done--and that without method, precision, unity, and a name. and why have i done this? . sincerely because i thought both by heading it and by giving it system i should be administering a continual blister to the kind feelings towards me, and the conscientious views of persons i respect as i do g. i assure you it is no pleasant thing to me to lose their good opinion, tho' i can't expect much to keep it. . i fear to put up something the bishops may aim at. i may be charged at, as the tracts have been. then j. should be in a very false position. i must move forward or backward, and i dread compulsory moves. . what is the most immediate and practical point, i don't think i could get a publisher to take on him the _expense_ of a _series_, but few people would dread the risk of a single life of one or two hundred pages. accordingly, i think i shall publish the one of which you saw a bit at once, to see whether it sells. that i shall to a certain extent be connected with it, and that i shall aim at making it a series, is certain; and this, as i said, was my reason for warning you that i was not giving way to g. so fully as i appeared to be. ever yrs affly, j. h. newman. p.s.--... what set me most urgently on my present notice was that _i could not help it_. though i gave up my series, which i wished to do, _lives remained_, written or printed, or promised, _which would appear anyhow_, or scarcely could not. the great event connected with the movement in was the publication of ward's 'ideal of a christian church,' which at first caused less excitement than might have been expected, at least in london. thus mr. badeley writes to mr. hope (october ), 'ward's book passes very quietly here at present;' and again (november ), 'the book here makes very little noise.' but meanwhile the heads of houses were moving at oxford, and on february , , a memorable day, the book was condemned, and its author deprived of his degrees by the house of convocation. mr. hope was absent on the continent at the beginning of the strife, to which his letters do not contain much allusion. perhaps the same motives of caution upon which he objected to the 'strong meat' of the 'lives of the english saints' would have led him to similar views as to the extreme unreserve of the 'ideal.' when, however, the question of mr. ward's condemnation came on, he voted against it, as he was sure to have done if he voted at all. it is hardly necessary to remind the reader that on the same occasion it was proposed to pass a censure on no. ; but this was vetoed by the proctors, and consequently never came to the vote. i find the following draft of an address of thanks to the proctors in mr. gladstone's hand, and with the subjoined signatures and date in mr. hope's, among the hope-scott papers:-- we the u.s. m. of c., understanding that you have resolved to put your negative upon the proposal relating to the ninetieth tract in convocation on thursday, the th instant, beg leave to tender to you our cordial thanks for a determination which we consider to have been demanded by the principles of our academical constit^n. w. e. g. manning and self. feby. , ' . j. r. h. as far as regards mr. gladstone, this ought to be compared with a correspondence in the oakeley case, which will be found cited _infra_, p. . to the earlier part of the period now before us belongs some very kind service rendered by mr. hope to his dear friend the rev. w. adams, fellow of merton, and perpetual curate of st. peter's-in-the-east, oxford, in seeing through the press his celebrated allegory, 'the shadow of the cross,' on which there is a rather full correspondence extant ( - ), but of more special interest as connected with mr. adams' biography than his own, except so far as it proves the affectionate intimacy which subsisted between them. one letter of later date (december , ) is endorsed in mr. hope-scott's handwriting:--'william adams, r. i. p. sub 'umbra crucis.' j. r. h. s. .' the work was published for the christian knowledge society, of the committee of which mr. hope at the time was still a member. in connection with the same society mr. hope undertook a serial work, already alluded to (which was in course of publication in ), consisting of engravings from scripture subjects, in a high style of art, from the cartoons of raphael in the loggia of the vatican. mr. hope was strongly impressed with the utility of such a work for directing and elevating the taste of the humbler classes and of schools generally, and he expended large sums of money in bringing this out. it was published in numbers containing six plates each, under the superintendence of professor gruner, afterwards director of the department of engravings at the royal museum at dresden, and prepared by signor corsini, a distinguished roman draughtsman. mr. hope-scott, indeed, did not carry on the work after the first five numbers (a large and costly business, however), and it was completed by mr. gruner alone, who published it under the title of 'scripture prints from the frescoes of raphael in the vatican,' edited by louis gruner, &c. (london: houlston and wright, ). mr. hope-scott continued his benefactions to the society for the propagation of the gospel for several years later than the time now before us. i find a donation of _l_. under his name in the year . he had given _l_. in november to the college chapel at harrow weald. another undertaking of some importance in which he took great interest in those days, relating both to literature and religion, was the 'anglia christiana,' a series of the monuments of english history, which was publishing in - . only three volumes of it came out--'chronicon monasterii de bello' (battle abbey), giraldus cambrensis 'de institutione principis,' and 'liber eliensis.' mr. hope much wished to have had included in the list the work called 'pupilla oculi,' a treatise on moral theology by john de burgh, chancellor of the university of cambridge about the year , which was much in use among the clergy before the reformation. mr. david lewis, of jesus college (as a catholic so well known for his admirable translations of the works of st. john of the cross and of st. teresa), collated the text for him, but i believe it was never published. i find in the badeley correspondence a very interesting letter of mr. hope's dated february , , about the 'pupilla oculi,' its history and authority. the book had been cited by mr. badeley in the court of queen's bench, and by others in the house of lords, in the case of the queen v. willis. lord lyndhurst and some of the judges objected to its value as evidence on the ground of its contradicting the common law on the question of legitimation by subsequent marriage. mr. hope discusses the subject in a masterly style: i must refrain from quoting such merely antiquarian or legal matter for its own sake, yet will subjoin some paragraphs of the letter which illustrate the line taken by him as a lawyer at that time on the important point of the relations of church and state:-- there can be, i think, little doubt that in old times the distinction between church and state was one of jurisdictions rather than of laws. i mean that each was supposed to have its proper subject-matter of legislation as well as of judicial inquiry. where the subject-matter was conceded to the church altogether, there the church law prevailed absolutely; where the subject-matter was of mixed cognizance, there the church law was modified by the common or the statute law; where the subject was altogether lay, there both the laws and the tribunals of the church were silenced. when, therefore, we would ascertain whether the law of the church is to govern a given subject, we must first ascertain how far it was of the exclusive cognizance of the church; and, if we find that it was principally but not exclusively of ecclesiastical cognizance, how far the common law interfered to modify the ecclesiastical laws by which it was to be determined. now, in the case before us, this much, i think, must be admitted, viz. that marriage, as a sacrament, was exclusively subject to the ecclesiastical jurisdiction; and, therefore, that whatever view the common law might entertain as to the consequence to be attached to this or that form of it, the essence of the sacrament itself was determinable by the doctrine of the church, and by that alone. but if this was so, then whatever was accepted by the church of england as to the essence of marriage must necessarily be allowed to have been the common law upon that point, i.e. there could be no other law by which it could be decided. granting, therefore, that j. de burgh, or any other ecclesiastical writer, has laid down rules upon subjects of mixed jurisdiction which the common law disallows, it by no means follows that his authority is to be slighted where he speaks of matters that were exclusively ecclesiastical. indeed, the opposition of the common law upon given points, e.g. the legitimation by subsequent marriage, gives a pregnant meaning to its silence upon others. i find that in the autumn of that year ( ) mr. hope spent some time in making researches into the records at york connected with the law of marriage. in a letter to mr. badeley (september ) he says, 'at york i was successful in finding a variety of matrimonial causes, from a.d. downwards, which i think illustrate the right view of the question. the records there abound in well-preserved forms of proceeding, and it was with regret that i gave up further investigations. the labour, however, of reading and transcribing extracts was occasionally harder than suits holiday work.' in the same letter he speaks with much pleasure of a day spent at burton agnes with archdeacons e. wilberforce, manning, &c., and as particularly indebted to the archbishop of york and his family for the reception they gave him. the correspondence, indeed, affords a gracious epistle from the archbishop himself (then nearly eighty-six years of age) to mr. hope, dated trentham, september , , in which, after expressing his high satisfaction at some legal advice which he had received from him, he goes on to say:-- i have only to add that nothing could gratify us more than your having occasion--and the sooner the better--to refer again to the york archives for any purpose whatever; 'provided always, and be it hereby enacted, that such reference be had during the period of the archbishop's annual residence at bishopthorpe.' ever truly yrs, e. ebor. it may here be permitted me to quote a few lines from memoranda about mr. hope, kindly written at the request of one of his nearest relatives by a lady whose genius as well as catholic feeling especially fitted her to preserve those traces which i am sure no reader would wish should be allowed to fade away. they afford at once a proof that when doubts as to his religious position were approaching their most painful stage, he never allowed them to interfere with those duties of religion which are binding on all intellectual states alike, and they present a glimpse both of his appearance and manner at that date which will greatly assist the reader in forming an idea of him. i think it was in that i first saw your dear brother in margaret street chapel, the favourite place of worship of the puseyites in those days, and noticed him and his friend mr. badeley walking away together, and was more struck with his appearance than with that of any other person i have ever seen before or since.... it is only in pictures that i have ever seen anything equalling, and never anything surpassing, what was, at the time i am speaking of, the ideal beauty of his face and figure. during the next two years i used often to see him at margaret street chapel, and i may say that his recollection in prayer and unaffected devotion made a strong impression upon me. having been very little in england since my childhood, it was quite a new thing to me to see a layman in the anglican church so devout, but without a tinge of fanaticism or apparent excitement. in i made acquaintance with mr. hope, and met him occasionally in society. he was all that his appearance would have led one to expect; the charm of his manner enhanced the effect of his conversational powers. [footnote: lady georgiana fullerton to lady henry kerr, may [ ].] i have not found any record of mr. hope's personal religious state about that time, like the diaries of his earlier manhood. he writes, however, to mr. newman on march , (from lincoln's inn): 'if i can manage it, i should much like to spend passion week at or near oxford. could you let me into the guest-chamber at littlemore?' mr. newman (march ) writes in reply that the guest-chamber was quite at his service, but adds: 'pray do not fancy us in such a state that we can profess a retreat, or any one here able to conduct one.' in another letter mr. newman acknowledges 'a splendid benefaction' of mr. hope's to the house of littlemore. chapter xx. - . mr. hope's tour on the continent in --visit to munich--dr. pusey's 'library of roman catholic works'--dr. pusey and the spiritual exercises-- his opinion of the discipline--mr. hope's visit to tetschen in --count leo thun and his friends--mr. hope's interview with prince metternich--the hon. sir r. gordon, ambassador at vienna--visit to prince palffy and to prince lichtenstein--the hungarian diet at presburg--letter of manzoni to j. r. hope--visit to rome--bishop grant and mr. hope--mr. hope resigns chancellorship of salisbury--dr. pusey and the stone altar case--mr. oakeley and mr. hope--scottish episcopalian church and its office--mr. gladstone endeavours to hold mr. hope back--proposes tour in ireland-- conversion of mr. newman--mr. hope on the essay on development--letter of mr. newman to j. r. hope from rome--reopening of correspondence with mr. newman. at the end of august or beginning of september mr. hope set out for a tour on the continent, accompanied by mr. badeley. of the earlier days of it i have no information, but they parted at heidelberg about september , mr. badeley for the rhine country and belgium, mr. hope for munich. by this time, as has already been evident, he was deeply engaged in professional pursuits, and his health had begun to suffer from his unremitting labours. several passages might be quoted from the letters of his intimate friends, showing the anxiety they felt on the subject. some real relaxation, however, had at last become necessary; and it would appear that he rather wished to leave the turmoil of the movement, as well as business, behind him. in a letter of mr. badeley's to him, dated brussels, september , the following sentence occurs:--'if you like to see what is going on in this [the affair of opposing dr. symonds' election as vice-chancellor at oxford] and in church matters, i will send you the "english churchman;" but as you said "no," when we parted, i forbear to forward any papers till further orders.' afterwards, however, 'after all,' he asks mr. badeley to send it. on his way to munich, mr. hope stopped at augsburg, where 'of course he visited butsch the bookseller,' buys a copy of the 'summa divi thomae aquinatis,' and sees _some_ good books which he did not want. at munich, where he arrived on september , rooms were provided for him at the austrian legation by the kindness of his friend count senfft. these particulars i take from a letter of his to mr. badeley, dated munich, september , and subjoin some further details in full:-- d[öllinger] is, i think, remarkably well, and i am more struck with him than ever. i found him already deep in ward's book, with which he is much struck. i have already had some interesting conversation with him, and anticipate more. he is rector elect of the university, and highly spoken of by all i see. my new acquaintances consist of the papal nuntius viale, a very striking person, professor walther, the canonist, and some intelligent bavarians. i am to visit görres this evening.... there is an english service here very decently and nicely performed by mr. de coetlogon, a man in scotch orders, and the chapel is a modest but respectable room.... i ask hard questions upon marriage, and receive very doubtful answers; but i am resolved, if possible, to get some definite information from the best sources in germany. the following letter, connected with this tour of mr. hope's, is also very instructive as to a particular phase of the movement:-- _the rev. dr. pusey to j. r. hope, esq._ my dear hope,--i have no news as yet to communicate to you, except that some few are taking up ye matter of ye v. c. in rt earnest, and so i suppose it will be a pitched battle, and we shall win at last, even if but a handful as yet. i have or commissions for you, wh will not occupy your time, and wh will, i hope, be a subject of interest to you. it is for my little library of r. c. works. the perplexity is to find out ye best books upon difft subjects, for i cannot read all. the general class is, as you know, ascetic books, books of guidance, wh shall give people knowledge of self, enable us to guide consciences, build people up in ye higher life, force them to mental prayer, or give them subjects of meditation in it, the spiritual life, xtian perfection, holy performance of ordinary actions, love of god, or any xtian graces in detail, devotions, books on holy seasons--in a word, anything in practical theology in its widest range, or, again, cases of conscience. i have learnt more or less as to french & spanish, & some latin works, but of italian i know those only of scupoli, and of german absolutely nothing. the only books i have seen are some sermons by sailer, wh, altho' clear and energetic, contain nothing wh one did not know before; they have nothing to build people up with. i shd be glad also of any information on a subject wh i know drew yr thoughts when you were last abroad--the system as to retreats. i saw a book,' manuale dell' esercitatori,' but i shd be very glad of any information or any guidance. if it wd not occupy you too much, i shd be much obliged to you to procure on my account any practical works wh mt be recommended. perhaps also dr. döllinger could give you some information as to s. ignatius loyola, 'exercitia spiritualia,' for they seem to have been so often re-moulded, that there is some difficulty to ascertain ( ) what is ye genuine form, or at least to obtain a copy, ( ) whether any other re- casting of it be found easier to use. i trust these inquiries will not be so much an encumbrance to you, as lead you to happy subjects and more acquaintance with happy-making books. god bless you ever. yrs affectionately, e. b. pusey. christ church: september , . [p.s.] there is yet a subject on wh i shd like to know more, if you fall in with persons who have ye guidance of consciences,--what penances they employ for persons whose temptations are almost entirely spiritual, of delicate frames often, and who wish to be led on to perfection. i see in a spiritual writer that even for such, corporal severities are not to be neglected, but so many of them are unsafe. i suspect ye 'discipline' to be one of ye safest, and with internal humiliation the best.... cd you procure and send me one by b.? what was described to me was of a very sacred character; cords, each with knots, in memory of ye wounds of our lord.... i shd be glad to know also whether there were any cases in wh it is unsafe, e.g. in a nervous person. on october mr. hope left munich to pay a visit at tetschen, the seat of his friends the thun family (described vol. i. p. ), taking ratisbon and other places in his way. at tetschen, where he stayed from october to , he found a sad blank in the recent death of the countess thun. from an interesting letter to lady hope (dated vienna, october , ) which furnishes these dates, i transcribe also the following particulars:-- countess anna is still in very uncertain health.... the count himself seems to have rallied lately, but it will be long before he gets over his loss. the second daughter, countess inza, seems to be now the stay of the family. of the sons, only francis, the eldest, was at home. he is devoted to art, and has besides abundance of business in the management of the estates which his father has made over to him, and with various charitable societies at prague, in which he and his family are interested. from tetschen i went to prague, with count joseph thun, a cousin, with his wife and two sons. at prague i spent sunday, monday, and tuesday, in constant admiration of the town, to which i did not do justice when i was last there. it is really beautiful, and, out of italy, i think edinburgh alone equal to it, of all the towns which i have seen. with tetschen for summer, and prague for winter, i think the thuns have two as charming residences as could be found. on tuesday evening [oct. ] i left for königsgrätz, a provincial town, where leo thun, the youngest, is officially employed. he is a noble fellow, and has devoted himself for years to the details of business, with a view to becoming useful to bohemia, to which he is very much attached. he is also prominent among the revivers of the bohemian language and literature, which is sclavonic, and has thus become well known in germany, as well as in hungary and other countries where there are sclavonic tribes. the movement is in a political sense important, as well as influential upon manners and modes of thinking, and it has already excited a good deal of discussion and some animosity. it would take too much time, however, to explain what i have learnt of its bearings. with leo i spent two very agreeable days, and have had much to talk about, as i had not seen him since i was last in bohemia. i was introduced to the _notables_ of the place, his _chef_ and the commander of the garrison (an old irish officer of the name of fitzgerald), and saw his mode of life, which to a man with plenty of employment must be convenient, though not very amusing. from königsgrätz i started on thursday night, and arrived here [vienna] on saturday week, the th [oct.], and took up my abode at the same inn with fritz thun, the diplomat, who was here on his way from turin, which he has now left for prague. you will remember how pleasant a person he is, and will be glad to hear that his professional prospects are excellent, as he is in high favour with prince metternich, to whom he was strongly recommended by schwartzenberg, his last _chef_. one of my first acts was to call on sir r. gordon [the british ambassador], who has been _most_ kind, giving me dinner as often as i can go to him, and assisting me in everything. on the evening of my arrival he took me to prince metternich, when i had the honour of a conversation with the great man. george was remembered by him and his daughter, and by the countess zichy, the princess's mother, and i was very kindly received by them all. palmerston was expected here, and the prince told sir r. gordon that, if he came, i should be invited to meet him at dinner; but unluckily he has changed his plans, so that i shall not see him and metternich together, which would have been a great sight. i gave sir robert your good account of lady alicia,[footnote: sister of the earl of aberdeen and of sir r. gordon, died .] and beg that you will in return tell her that sir r. is very flourishing, and that in my opinion he is a very magnificent ambassador, and, what is better, a very kind one. his establishment is admirably _monté_, and i found in françois a friend of the hope family in general. george's letters of introduction i duly received. schwartzenberg is not here, but i have seen esterhazy, who has asked me to his country place, about three hours' drive from vienna.... besides the people i have named, i have seen others, to whom i get access through count senfft, among whom is the dowager duchess of anhalt-cöthen, a natural sister of the king of prussia, and a clever woman.... your affect. son, james r. hope. mr. hope was unable to accept the invitation of prince esterhazy, in consequence of an engagement to visit another hungarian magnate, prince palffy. the latter visit, with various other interesting details, is recorded in the following letter:-- _j. r. hope, esq., to edward l. badeley, esq._ vienna: nov. , . dear badeley,--[after giving some account of his visit at tetschen, mr. hope goes on to mention his interview with prince metternich.] prince metternich honoured me with a conversation of some ten minutes or so, and which would probably have been both longer and more interesting but for the intrusion of a german who chose to thrust himself upon us. he spoke of some points of commercial and manufacturing interest, and pleased me very much by the simplicity of his manner. by means of letters which count senfft gave me i have also become acquainted with several of the persons who are known as active friends of the r. c. _high_ church party; but i do not know very much of them, and of the vienna clergy nothing at all.... on sunday, the th [oct.], i started for my promised visit to prince palffy at malatzka, and arrived there in a few hours. the house resembles most of those one sees abroad, built round a court, with long passages, white exterior, &c., and, as the country round it is very flat and sandy, it cannot be called a very interesting place. it was, however, my first resting-place in hungary, and as such, an object of curiosity to me. besides which, i found in it a hearty welcome, and a large family party, which gave me a good idea of the society of the upper class. the prince is an extensive landowner, holding it all in his own hands (as is generally if not universally the case, both in bohemia and hungary), and working it by the tributary labour of the peasants, who, besides a small money payment, contribute labour for a certain number of days in each year. with the obligation of this quittance, the latter class hold in fee the cottages and plots of land which they occupy, and appear to be a thriving and comfortable race. they are, however, exclusively the tax-payers, as the nobles are still free from all imposts. an effort has indeed been made lately, which has partially succeeded, to tax the nobles; and it is probable that amid the numerous reforms of the hungarian diet, this will eventually be fully carried out. our mode of life at malatzka was to rise when we chose, breakfast in our own rooms, to meet at half-past twelve for luncheon, then to go out, and to dine at six, and to spend the evening in the drawing-room. coursing, a badger-hunt, and an expedition to a property of the prince's at the foot of the carpathians, constituted my out-of-door amusements; and of these, the last at least was very interesting. i saw an immense tract of wood and pasture, a herd of wild oxen, sheep innumerable, a curious stalactite grotto, and an hungarian farmhouse. from malatzka i went, furnished with letters, to the seat of prince liechtenstein in moravia--eisgrüb. he is one of the richest men in the austrian dominions, having possessions in moravia, bohemia, and hungary, and several houses in vienna. a great sportsman, and in this point, at least, a great imitator of english manners. the house at which i was is a summer residence, with very fine pleasure-grounds, park, &c.; but he has an autumn château not far off, which i also visited, and which is a fine specimen of foreign country architecture. everything about him seemed to teem with expense and luxury, which, although probably not greater than what is to be found in the residences of english noblemen, appears greater from its contrast with the rudeness and simplicity of the general condition of the country. these great nobles seem, in fact, to combine the most striking points of barbarism and civilisation, and to turn them both to their enjoyment. i stayed only one day at eisgrüb, though i had pressing invitations to remain longer; but i was anxious to go to presburg to see the diet, and so returned to malatzka, which i left again the next morning, saturday, nd nov., for the seat of the hungarian parliament. at presburg i spent four days. the place itself is uninteresting, though there are points of beauty about it; but it contains at this moment some of the most turbulent politicians in the world; and their movements are of considerable importance as well to the twelve million souls who constitute the population of hungary, as to the integrity of the austrian empire. i should write a book were i to tell you all i have heard from different quarters upon this question; but this much seems certain--that hungary is in a state of violent transition, and that in a few years its internal condition and perhaps its relations to the austrian monarchy will have undergone a complete revolution. sir r. gordon gave me a letter to an englishman who is employed by the british embassy to attend the sittings of the diet; and by his kindness i was enabled to make acquaintance with many of the most distinguished men. i was also present at several debates in the two chambers of the diet, and though (the language being hungarian) i could not understand a word, yet it was most interesting to watch the proceedings of this magyar parliament, in which freedom of speech exists as fully as in any assembly in the world. the members all attend in hungarian costume, which, on common occasions, consists of a laced surtout coat, a cap, and a sword. they speak from their places and without notes. each member may speak as often as he pleases, and some take advantage of the privilege to a somewhat formidable extent. there seemed to be much fluency and not a little action; but the management of the voice was bad, and energy seemed to pass at once into violence. though party runs high, organisation is very little understood, and business is transacted both slowly and with very uncertain results. they have the misfortune of all foreign constitutional states, that of desiring to imitate england, i.e. to do in a few years, and designedly, what the accidents of centuries have produced with us. there is, however, no lack either of talent or courage, and one governing mind might make hungary a nation. it is immensely rich in natural productions, and wants only a market to have a great trade. this they are well disposed to establish with england, and i hope they may succeed; but austria has interests which i fear may render this difficult. in both chambers the clergy are represented: in that of the magnates by the bishops; in the lower house by deputies of the chapters. to the primate i was introduced at one of his public entertainments. he is said to have or , _l_. per ann., and his personal carriage as well as his establishment are quite becoming his station. i made acquaintance also with the archbishop of erlau, a poet and a man of taste and learning, but victim to the tic douloureux. lastly, with the bishop of csanad (mgr. lonowics), who has charmed me. he is well read, in english as well as other literature and history, and is as kind-hearted and christian a man as i ever met with. indeed, i shall be tempted to visit hungary again, if it is only to spend a day or two with him. in the meantime we have established a mutual book- relation. he is to send me works on hungarian ecclesiastical law, addressed to stewart, and i have promised to send him some things which i beg you will at once see to. [mr. hope mentions winkle's 'cathedrals;' ward's 'ideal;' newman's last vol. of 'sermons;' the 'life of st. stephen;' oakeley's 'life of st. austin;' and his own pamphlet 'on the jerusalem bishopric.'] yours ever truly, james r. hope. on november we find mr. hope at milan, where he mentions having seen his old acquaintances, manzoni and vitali. the following letter will show how much he had impressed the former, brief as their communications had been:-- _alessandro manzoni to j. r. hope, esq._ milan: mai, . monsieur et respectable ami,--je profite de l'occasion que me présente mon ancien et intime ami, m. le baron trechi, pour me rappeler à votre bon souvenir.... agréez mes remercîments bien vifs et bien sincères pour les _scripture prints_ que mr. lewis gruner a bien voulu me remettre de votre part. si le nom du peintre n'y était pas, je suis sûr qu'en les voyant, je me serais écrié: ah! raphael. c'est tout ce qu'un homme n'ayant, malheureusement, aucune connaissance de l'art, peut vous dire pour vous rendre compte de l'impression que lui a faite la copie. je ne vous charge de rien pour m. gladstone, parce que je me donne la satisfaction de lui écrire par cette même occasion. j'espère que nous le reverrons bientôt au ministère. n'allez pas me demander si je suis anglais pour dire: nous; car je vous répondrais que _homo sum; humani nihil a me alienum puto_; et qu'il n'y a rien d'_humanius_ que d'aimer à voir le pouvoir uni à la confiance; je ne dis pas: à de hautes facultés; car, malheureusement, le cas est moins rare. [after giving his friend an account of a great family affliction he had sustained in the loss of a beloved daughter, the writer goes on to say:] je ne crains pas de vous importuner en vous parlant ainsi de ce qui me touche si profondément: je sais la part que vous prenez à tout ce qui est douleur et confiance en dieu, par jésus christ. je n'ai pas craint non plus de vous choquer en vous écrivant avec un ton si familier, et comme il conviendrait à une ancienne connaissance; car il me semble que nous le sommes; l'affection et l'estime de ma part et une grande bonté de la vôtre, ont bien pu suppléer le temps. permettez-moi d'espérer que le bonheur que j'ai de vous connaître n'aura pas été un accident dans une vie, et que des causes plus heureuses que d'autrefois vous ramèneront bientôt encore dans ce pays; et, en attendant, veuillez me garder une petite place dans votre faveur, comme vous êtes toujours vivant dans le mien. je suis, avec la plus affectueuse considération, votre dévoué serviteur et ami, alexandre manzoni. mr. hope proceeded from milan to florence and rome. almost the only letter referring to this visit to rome that has come before me is one written to mr. badeley on december . it contains very little of importance. much of it is taken up with an account of sir william follett, then at rome, and verging towards his end, of whom mr. hope had seen a great deal. other friends named are mr. and mrs. vivian, and mr. waterton. from the latter, mr. hope had 'an interesting account of tickell's reception into the church of rome at bruges. he was himself present, and very much struck by t.'s devout and humble behaviour.' 'of the roman clergy,' mr. hope remarks, 'i have seen little, and have indeed almost given up my inquiries among them.' he mentions in the same letter that he intended leaving rome on january or , 'and to speed homewards _viâ_ leghorn, genoa, marseilles, and paris.' amidst all this apparent coldness, and in spite of all the expressions of disappointment with rome that have appeared thus far, [footnote: on the cause of this dissatisfaction an intimate friend of his has observed: 'for myself i think the real and sufficient reason of his disappointment with rome was, that the roman authorities naturally and reasonably would not open to a protestant. they would fear their information would be used against them. they could not know his honesty of purpose.'] it is clear that the secret influence and spirit of the place were working their effect on his mind. a great proof of this will be given further on, in a letter of the père roothaan's to a friend relative to mr. hope's conversion. a sentence from a letter of mr. hope's about two years afterwards is here in point. 'your impression of rome (he writes to mr. badeley, october , ) appears to be similar to that of most who see it for the first time; but it grows upon one, and the recollection will be deeper than the present feeling.' there is a pleasing note to mr. hope, dated december , , from mgr. grant, then rector of the english college at rome, and afterwards the well- known bishop of southwark, one of the most beloved and venerated friends of his catholic period. it merely gives information to assist him in visiting st. john lateran's, and promises to send an order for st. peter's. it concludes characteristically: 'i shall be too happy to serve you whenever i can be useful. although you do not think so, you will find that _little people_ are not without some use; and, in the hope that you will allow me an opportunity of proving that i am in the right, i remain, with many thanks for your kindness, &c.,--thomas grant.' i may here also give a short letter of bishop grant's, of later date, illustrating their friendship, and including some traces of its beginning at rome:-- _the right rev. dr. grant, bishop of southwark, to j. r. hope-scott, esq., q.c._ june , . my dear mr. hope-scott,--the _frescoes_ have arrived, and i hasten to thank you for a gift, valuable in itself, but most dear to me, because it will ever remind me of the beginning of that friendship which has always been so pleasing to me, and which forms one of the consolations that are allowed to me in the midst of the weighty duties of my present state-- duties which i little expected when we quarrelled peacefully about swiss guards and troops of soldiers lining st. peter's on grand days. when you next visit the churches and antiquities of rome, mary monica will catch up the ardour that will then probably have gone by for you and myself, and will wonder why you care so little for them; and if i am with you i fear i shall be more tempted to tell her of the quiet rooms in via della croce, when i first knew her father, than of the arch of drusus, or other pagan monuments that once entertained our attention. yours very sincerely, � thomas grant. mr. hope-scott had a high admiration for this saintly bishop, and used to speak of him as '_the_ bishop,' always meaning by that bishop grant. early in , and not many weeks after his return to england, mr. hope resigned his chancellorship of salisbury. it can scarcely be doubted that misgivings as to his religious position, more apparent perhaps to us now than they then were even to himself, were among his leading motives for taking this important step; although the immense accumulation of his business before the parliamentary committees must have rendered it difficult for him, even with his talents, to hold with it an appointment like that in such times; and feelings of friendship for his successor, the present sir robert phillimore, may also have influenced him. the date of the resignation was feb. . the judgment of sir herbert jenner fust in the celebrated 'stone altar case,' by which wooden altars only were permitted, was a severe discouragement to the tractarian party, being felt to interfere with the idea of sacrifice. from the following passage of a letter (undated) of dr. pusey's to mr. hope, it appears that he (mr. hope) had endeavoured to take a more favourable view. the letter probably belongs to feb. or march . i do not know whether the opinion you give is as to law previous to sir h. j. f.'s decision, and as a ground of appeal against it, or as to what would still be allowed. would his judgment preclude our having a stone slab, either upon stone pedestals or a wooden panelled altar? i have comforted others with the same topic you mention, that wooden tables are altars by virtue of ye sacrifice, and so that this decision really alters nothing. still, it does seemingly, and was intended to discountenance the doctrine.... it must be confessed, too, that this decision of sir h. j. f. is a defeat--only an outward one, and availing nothing while truth spreads within. still it is well to neutralise the sentence as much as we can. ever yrs affectly, e. b. pusey. notwithstanding this, mr. hope is remembered, after the adverse decision, to have despondingly asked, 'where is the use of fighting for the shell when we have lost the kernel?' among the other agitations of that time was the prosecution instituted in the court of arches by dr. blomfield, bishop of london, against the rev. frederick oakeley (the late canon) for views which he had expressed about the blessed sacrament. canon oakeley, in a conversation i had with him in , gave me the following information as to the part taken by mr. hope as his friend and adviser in this case, and general recollections of him. he had resolved to let the case go by default, partly because he felt convinced that it was sure to be decided in favour of the bishop, as those cases always were; partly because he disliked a subject like the blessed sacrament to be bandied about by the lawyers in that way. mr. hope, on the other hand, urged him to place himself in the hands of counsel, and thought a good case might be made by reference to books on canon law and roman writers of the moderate school (gallican), showing that, in point of fact, the holding of 'all roman doctrine' (thus interpreted) was compatible with the doctrine of the church of england. [footnote: _thus interpreted_, observe. mr. newman himself, in a letter to mr. hope, dated littlemore, may , , says: 'you are quite right in saying i do not take ward and oakeley's grounds that all roman doctrine may be held in our church, and that _as_ roman i have always and everywhere resisted it.'] the principle on which he went was the approximation made out by sancta clara and in tract . mr. hope had more hopes of the house of lords than of the court of arches, and wished mr. oakeley to appeal to the former. if he was afraid of the expenses, he said they would manage all that for him. [footnote: mr. hope had formed a committee (in conjunction with serjeant bellasis, mr. badeley, and mr. j. d. chambers) in order to raise contributions to meet mr. oakeley's expenses. i find an exchange of notes dated march , , between mr. hope and mr. gladstone on this matter. mr. hope encloses a circular, and invites mr. gladstone to contribute, remarking 'as the process must throw light upon many collateral points, i amongst others am much interested in its being well conducted. i am, moreover, as a friend of o.'s, anxious that he should have fair play....this looks like the beginning of the end.' mr. gladstone, in reply, alludes to doubts he had had whether he could subscribe _in re_ ward. 'although i am far from having (upon a slight consideration as yet, for i have been very busy with other matters) found them conclusive; for i think we are going to try questions of academical right, and even of general justice.' he therefore declines subscribing in mr. oakeley's case, promising to give mr. hope his reasons whenever they should meet.]he added, however, 'but i think you are inclined to go over to the church of rome; and if that is the case, it is useless to proceed.' mr. hope at that time (said the canon) was a staunch anglican. he did not, however, see more of him than of any other member of his congregation perhaps once in three months. after mr. oakeley had become a catholic, mr. hope once asked him to breakfast, which he accepted rather hesitatingly. at that time he (mr. oakeley) thought less favourably of protestants than he did now, and hinted that he must take a line in conversation that might not be acceptable. mr. hope said they need not talk of that, let him come. at this breakfast mr. hope mentioned that he had been lately at rome (he could allude to no other visit than that of - ), where he had seen a procession of the pope in the _sedia gestatoria_, and thought how much better it would have been if he had walked in the procession like any other bishop--that was the line he took. [i ought to add that, later in my conversation with him, canon oakeley seemed rather to hesitate whether it was mr. hope or some one else who made this observation about the pope's procession, but in the end he appeared to feel satisfied that it was mr. hope.] in the same troubled spring of a movement was going on to assimilate the office of the scottish episcopalian church to that of the english. dean ramsay of edinburgh had asked mr. hope for a legal opinion on a case in which he was concerned bearing on this. mr. hope, in a letter to him dated april , declines to meddle with the question, and adds:-- i can hardly tell you how much i deprecate any steps which may tend to diminish the authority of the _native_ office; how entirely i dissent from any plans of further assimilation to the foreign english church. indeed, the consequences of such schemes at this moment would in my opinion be most disastrous. some letters of great interest with reference to mr. hope's religious position at this period occur in the gladstone correspondence. mr. gladstone, being now thoroughly aware that his friend was entertaining serious doubts as to the catholicity of the church of england, writes him a very long and deeply considered letter, appealing in the first place to a promise of co-operation which mr. hope had made him in the earlier days of their friendship, and placing before him, with all the power and eloquence of which he is so great a master, what he regarded as the most unanswerable arguments for remaining in the anglican communion. from this letter i quote the following passages as strictly biographical:-- _the right hon. w. e. gladstone, m.p. to j. m. hope, esq._ carlton house terrace: thursday night, may , ' . _private._ my dear hope,--in you lent me that generous and powerful aid in the preparation of my book for the press, to which i owe it that the defects and faults of the work fell short of absolutely disqualifying it for its purpose. from that time i began to form not only high but definite anticipations of the services which you would render to the church in the deep and searching processes through which she has passed and yet has to pass. these anticipations, however, did not rest only upon my own wishes, or on the hopes which benefits already received might have led me to form. in the commencement of , in the very room where we talked to-night, you voluntarily and somewhat solemnly tendered to me the assurance that you would at all times be ready to co-operate with me in furtherance of the welfare of the church, and you placed no limit upon the extent of such co- operation. i had no title to expect and had not expected a promise so heart-stirring, but i set upon it a value scarcely to be described, and it ever after entered as an element of the first importance into all my views of the future course of public affairs in their bearing upon religion. [footnote: with this may be compared mr. hope's letter to mr. gladstone of october , , given in chapter ix. (vol. i.).] * * * * * if the time shall ever come (which i look upon as extremely uncertain, but i think if it comes at all it will be before the lapse of many years) when i am called upon to use any of those opportunities [the writer had just spoken of 'the great opportunities, the gigantic opportunities of good or evil to the church which the course of events seems (humanly speaking) certain to open up'], it would be my duty to look to you for aid, under the promise to which i have referred, unless in the meantime you shall as deliberately and solemnly withdraw that promise as you first made it. i will not describe at length how your withdrawal of it would increase that sense of desolation which, as matters now stand, often approaches to being intolerable. i only speak of it as a matter of fact, and i am anxious you should know that i look to it as one of the very weightiest kind, under a title which you have given me. you would of course cancel it upon the conviction that it involved sin upon your part: with anything less than that conviction i do not expect that you will cancel it; and i am, on the contrary, persuaded that you will struggle against pain, depression, disgust, and even against doubt touching the very root of our position, for the fulfilment of any actual _duties_ which the post you actually occupy in the church of god, taken in connection with your faculties and attainments, may assign to you. you have given me lessons that i have taken thankfully. believe i do it in the payment of a debt, if i tell you that your mind and intellect, to which i look up with reverence under a consciousness of immense inferiority, are much under the dominion, whether it be known or not known to yourself, of an agency lower than their own, more blind, more variable, more difficult to call inwardly to account and make to answer for itself--the agency, i mean, of painful and disheartening impressions--impressions which have an unhappy and powerful tendency to realise the very worst of what they picture. of this fact i have repeatedly noted the signs in you. i should have been glad to have got your advice on some points connected with the maynooth question on monday next, but i will not introduce here any demand upon your kindness; the claims of this letter on your attention, be they great or small, and you are their only judge, rest upon wholly different grounds. god bless and guide you, and prosper the work of your hands. ever your aff'te friend, w. e. gladstone. j. r. hope, esq. the friends both being in london at the time, the correspondence gives no further light at this point. in july mr. gladstone proposed to mr. hope that they two should go on a tour in ireland together. the invitation must be given in his own words:-- _the right hon. w. e. gladstone, m.p. to j. r. hope, esq._ c. h. terrace: july , . my dear hope,--ireland is likely to find this country and parliament so much employment for years to come, that i feel rather oppressively an obligation to try and see it with my own eyes instead of using those of other people, according to the limited measure of my means. now your company would be so very valuable as well as agreeable to me, that i am desirous to know whether you are at all inclined to entertain the idea of devoting the month of september, after the meeting in edinburgh, to a working tour in ireland with me--eschewing all grandeur, and taking little account even of scenery, compared with the purpose of looking from close quarters at the institutions for religion and education of the country, and at the character of the people. it seems ridiculous to talk of supplying the defects of second-hand information by so short a trip; but though a longer time would be much better, yet even a very contracted one does much when it is added to an habitual though indirect knowledge. believe me your attached friend, w. e. gladstone. it is much to be regretted that this tour was not accomplished, but various engagements prevented mr. hope's accepting the invitation: he spent that part of the vacation in scotland, and mr. gladstone on the continent. shortly after the date of the preceding letter mr. gladstone appears to have suggested to mr. hope the idea of his joining some association for active charity, which is partly illustrated by a correspondence which i shall presently quote; but mr. hope (august ) writes:-- as to the guild or confraternity, i am not at this moment prepared to join it. my reasons are various, but i have not had leisure to think them out. when i have revolved the matter further, perhaps i may trouble you again upon it. on october , , mr. newman was received into the catholic church, and mr. hope writes to him on the th:-- i was so fully prepared that the event fell lightly on my mind, but the feeling of separation has since grown upon me painfully. the effect which, i think i told you, it would have upon my conduct, is that of forcing me to a deliberate inquiry; but i feel most unfit for it, and look with anxiety to your book as my guide. i hope to be at oxford early next week, and trust to see you. meantime, if it be anything to you to know that all my personal feelings towards you remain unaltered, or rather, are deepened, that much i can sincerely say. on december he speaks of his own joining the roman catholic church as 'what may eventually happen,' adding: 'but i feel that i have yet much before me, both in moral and intellectual exertion, ere i can hope for a conclusion. meantime i beg your prayers.' on december he gives his impressions of newman's 'essay on development,' so eagerly expected:-- i have read your book _once_ through. to apprehend it fully will require one, if not two more perusals. the effect produced upon me as yet is that of perplexity at seeing how wide a range of thought appears to be required for the discussion. i had thought that the principles which i already acknowledge would, upon a careful application, suffice for the solution of the difficulties; but you have taken me into a region less familiar to me, and the extent of which makes me feel helpless and discouraged. it may be worth mentioning that soon after the 'essay on development' came out, mr. hope asked a friend at dinner across the table (the anecdote was given me by the latter), 'have you read the "extravagant of john"?' to understand this, the unlearned reader must be told that certain celebrated constitutions, decreed by pope john xxii., are called by canonists the 'extravagantes joannis.' the play on the word was one which would be relished by mr. hope's friend, who was almost as great a student of the canon law as himself. his meaning, however, may have been that he thought mr. newman had taken up a view outside of the received system. in the two letters i have just quoted mr. hope enters, like a kind friend and adviser, into mr. newman's plans in the early days of his conversion, but an interruption of the correspondence seems to have followed on mr. newman's going to rome, where he was from autumn, , to the beginning of . it is probable, indeed, that it was the consciousness of his own affection for mr. newman, and of mr. newman's influence over him, that led mr. hope to abstain, during that long interval, from intercourse with a friend whom he regarded with such deep respect and admiration. there is, however, a letter of mr. newman's from rome in the interval, which will be read with great interest, both for his own history and for the light, yet thrilling touch of spiritual kindness which it conveys towards the end. it contains, too, a line explaining his own silence. _the rev. j. h. newman to j. r. hope, esq_. (private.) collegio di prop.: feb. , ' . my dear hope,--i have been writing so very, very much lately, that now that i want to tell you something my hand is so tired that i can hardly write a word. we are to be oratorians. mgr. brunelli went to the pope about it the day before yesterday, my birthday. the pope took up the plan most warmly, as had mgr. b., to whom we had mentioned it a month back. mgr. had returned my paper, in which i drew out my plan, saying, 'mi piace immensamente,' and repeated several times that the plan was 'ben ideata.' they have from the first been as kind to us as possible, and are ever willing to do anything for us. i have ever been thinking of you, and you must have thought my silence almost unkind, but i waited to tell you something which would be real news. it is _no_ secret that we are to be oratorians, but matters of detail being uncertain, you had better keep it to yourself. the pope wishes us to come here, as many as can, form a house under an experienced oratorian father, go through a novitiate, and return. of course they will hasten us back as soon as [they] can, but that will depend on our progress. i _suppose_ we shall set up in birmingham... you are not likely to know the very jesuits of propaganda. we are very fortunate in them. the rector (padre bresciani) is a man of great delicacy and real kindness; our confessor, father ripetti, is one of the most excellent persons we have fallen in with, tho' i can't describe him to you in a few words. another person we got on uncommonly with was ghianda at milan. bellasis will have told you about him. we owed a great deal to you there, and did not forget you, my dear hope. let me say it, o that god would give you the gift of faith! forgive me for this. i know you will. it is of no use my plaguing you with many words. i want you for the church in england, and the church for you. but i must do my own work in my own place, and leave everything else to that inscrutable will which we can but adore;... well, our lot is fixed. what will come to it i know not. don't think me ambitious. i am not. i have no views. it will be enough for me if i get into some active work, and save my own soul.... my affectionate remembrances to badeley.... ever y'rs affectionately, john h. newman. i find, towards the end of , a very interesting exchange of letters between dr. newman and mr. hope, which may conveniently be given here, though chronologically they ought to come later. i first give a letter needed to explain them:-- _j. r. hope, esq., q.c. to the rev. stuart bathurst._ abbotsford: nov. , ' . dear bathurst,--your kind letter needed no apologies; and for your prayers and good thoughts for me i thank you much. may they of god be blessed to me in clearer light as well as in a purer conscience! as yet i do not see my way as you have done yours, but i pray that i may not long remain in such doubt as i now have. from our address i conclude that you are with newman. tell him with my kind regards that i hope he has not forgotten me. i have very often thought of him, and have sometimes been near writing to him, but have had nothing definite to say. i have read his last lectures, and wish they were extended to a review of doctrine, and the difficulties which beset it to an anglican. let me hear from you when you have time, and believe me, my dear bathurst, yours ever aff'tly, james r. hope. the rev. s. bathurst. _the very rev. dr. newman to j. r. hope, esq., q.c._ oratory, birmingham: nov. , . my dear hope,--it is with the greatest pleasure i have just read the letter which you wrote to bathurst, and which he has forwarded to me.... i now fully see ... that your silence has arisen merely from the difficulty of writing to one in another communion, and the irksomeness and indolence (if you will let me so speak) we all feel in doing what is difficult, what may be misconceived, and what can scarcely have object or use. i know perfectly well, my dear hope, your great moral and intellectual qualities, and will not cease to pray that the grace of god may give you the obedience of faith, and use them as his instruments. for myself, i say it from my heart, i have not had a single doubt, or temptation to doubt, ever since i became a catholic. i believe this to be the case with most men--it certainly is so with those with whom i am in habits of intimacy. my great temptation is to be at _peace_, and let things go on as they will, and not trouble myself about others. this being the case, your recommendation that i should 'take a review of doctrine, and of the difficulties which beset it to an anglican,' is anything but welcome, and makes me smile. surely, enough has been written--all the writing in the world would not destroy the necessity of faith. if all were now made clear to reason, where would be the exercise of faith? the single question is, whether _enough_ has not been done to _reduce_ the difficulties so far as to hinder them absolutely blocking up the way, or excluding those direct and large arguments on which the reasonableness of faith is built. ever yours affectionately, john h. newman. _j. r. hope, esq., q.c. to the very rev. dr. newman._ abbotsford: nov. , ' . dear newman,--the receipt of your letter gave me sincere pleasure. it renews a correspondence which i value very highly, and which my own stupidity had interrupted. offence i had never taken, but causes such as you describe much better than i could have done were the occasion of my silence. you may now find that you have brought more trouble on yourself, for there are many things on which i should like to ask you questions, and i know that your time is already much engaged. however, at present my chief object is to assure you how very glad i am again to write to you, as the friend whom i almost fear i had thrown away. whatever occurs, do not let us be again estranged. it is not easy, as one gets older, to form new friendships of any kind, and least of all such as i have always considered yours.... ever, dear newman, yours affectionately james r. hope. _the very rev. dr. newman to j. r. hope, esq., q.c._ oratory, birmingham: november , . my dear hope,--i write a line to thank you for your letter, and to say how glad i shall be to hear from you, as you half propose, whether or not i am able to say anything to your satisfaction, which would be a greater and different pleasure. it makes me smile to hear you talk of getting older. what must i feel, whose life is gone ere it is well begun? ever yours affectionately, john h. newman, congr. orat. chapter xxi. - . mr. hope's doubts of anglicanism--correspondence with mr. gladstone-- correspondence of j. r. hope and mr. gladstone continued--mr. gladstone advises active works of charity--bishop philpotts advises mr. hope to go into parliament--mr. hope and mr. gladstone in society--mr. hope on the church affairs of canada--dr. hampden, bishop of hereford--the troubles at leeds--mr. hope on the jewish question, &c.--the gorham case--the curzon street resolutions--the 'papal aggression' commotion--correspondence of mr. hope and mr. manning--their conversion--opinions of friends on mr. hope's conversion--mr. gladstone--father roothaan, f.g. soc. jes., to count senfft--dr. döllinger--mr. hope to mr. badeley--conversion of mr. w. palmer. to return to the gladstone correspondence which we quitted some pages back. in a letter dated baden-baden, october , , mr. gladstone, after mentioning his having been at munich, where, through an introduction from mr. hope, he had made the acquaintance of dr. döllinger, criticises at some length möhler's 'symbolik,' which he had been reading on mr. hope's recommendation. i must quote the conclusion of the letter in his own words:-- no religion and no politics until we meet, and that more than ever uncertain. hard terms, my dear hope; do not complain if i devote to them the scraps or ends of my fourth page. but now let me rebuke myself, and say, no levity about great and solemn things. there are degrees of pressure from within that it is impossible to resist. the church in which our lot has been cast has come to the birth, and the question is, will she have strength to bring forth? i am persuaded it is written in god's decrees that she shall; and that after deep repentance and deep suffering a high and peculiar part remains for her in healing the wounds of christendom. [nor] is there any man, i cannot be silent, whose portion in her work is more clearly marked out for him than yours. but you have, if not your revenge, your security. i must keep my word. god bless and guide you. yours affectionately, w. e. g. the following letter is deeply interesting:-- _j. r. hope, esq. to the right hon. w. e. gladstone, m.p._ charles street, mayfair: december , . dear gladstone,--i return döllinger's letter, which i had intended to give you last night. the debate has cost me a headache, besides the regrets i almost always feel after having engaged in theological discussions. a sense of my own ignorance and prejudices should teach me to be more moderate in expressing, as well as more cautious in forming opinions; but it is my nature to require some broad view for my guidance, and since anglicanism has lost this aspect to me, i am restless and ill at ease. i know well, however, that i have not deserved by my life that i should be without great struggle in my belief, and this ought to teach me to do more and say less. i must therefore try more and more to be fit for the truth, wherever it may lie, and in this i hope for your prayers. yours affectionately, james r. hope. _the right hon. w. e. gladstone, m.p. to j. r. hope, esq._ c. h. terrace: dec. , nd sunday in advent, . my dear hope,--i need hardly tell you i am deeply moved by your note, and your asking my prayers. i trust you give what you ask. as for them you have long had them; in private and in public, and in the hour of holy communion. but you must not look for anything from them; only they cannot do any harm. under the merciful dispensation of the gospel, while the prayer of the righteous availeth much, the petition of the unworthy does not return in evils on the head of those for whom it is offered. your speaking of yourself in low terms is the greatest kindness to me. it is with such things before my eyes that i learn in some measure by comparison my own true position.... [mr. gladstone goes on to controvert his friend's desire for 'broad views,' on the principles of butler, and proceeds] now let me use a friend's liberty on a point of practice. do you not so far place yourself in rather a false position by withdrawing in so considerable a degree from those active external duties in which you were so conspicuous? is rest in that department really favourable to religious inquiry? you said to me you preferred at this time selecting temporal works: are we not in this difficulty, that temporal works, so far as mere money is concerned, are nowadays relatively overdone? but if you mean temporal works otherwise than in money, i would to god we could join hands upon a subject of the kind which interested you much two years ago. and now i am going to speak of what concerns myself more than you, as needing it more. the desire we then both felt passed off, as far as i am concerned, into a plan of asking only a donation and subscription. now it is very difficult to satisfy the demands of duty to the poor by money alone. on the other hand, it is extremely hard for me (and i suppose possibly for you) to give them much in the shape of time and thought, for both with me are already tasked up to and beyond their powers, and by matters which i cannot displace. i much wish we could execute some plan which, without demanding much time, would entail the discharge of some humble and humbling offices.... if you thought with me--and i do not see why you should not, except that to assume the reverse is paying myself a compliment--let us go to work, as in the young days of the college plan, but with a more direct and less ambitious purpose.... in answer give me advice and help if you can; and when we meet to talk of these things, it will be more refreshing than metaphysical or semi-metaphysical argument. all that part of my note which refers to questions internal to yourself is not meant to be answered except in your own breast. and now may the lord grant that, as heretofore, so ever we may walk in his holy house as friends, and know how good a thing it is to dwell together in unity! but at all events may he, as he surely will, compass you about with his presence and by his holy angels, and cause you to awake up after his likeness, and to be satisfied with it! ... ever your affectionate friend, w. e. gladstone. j. r. hope, esq. the above letter appears to throw a light upon mr. hope's views of action at that time (it was a year of approaching the acme of his professional energies) which i have not met with elsewhere. those views he did not see his way to give up, notwithstanding the representations so kindly urged by his friend. it will have been remarked that mr. gladstone did not expect any answer, in the ordinary sense of the word, to the most serious part of his letter, and in his reply (december ), which is merely a note, mr. hope simply says:-- many, many thanks for your letter, which i received this morning. i will think it over, and particularly as regards the engagement in some temporal almsdeed. i see, however, many obstacles in my own way, both from health and occupation. after this, though the two friends continued still to correspond, yet the letters are of comparatively little moment, the subject nearest to the hearts of both being of necessity suppressed, or almost so; topics once of common interest, such as trinity college (now near its opening) [footnote: see vol. i. (ch. xiv. p. ).] and church legislation, having of course lost their attractions for mr. hope. in the autumn of there was an interchange of visits between rankeillour [footnote: rankeillour, a family seat near cupar, in fifeshire, which mr. hope with his sister-in-law, lady frances hope, had rented the previous year, , from his brother, mr. g. w. hope, of luffness, and which was theirs and lady hope's joint home when in scotland, until mr. hope's marriage in .] and fasque, and kind and friendly offices and family sympathies went on as of old. yet, if the _idem sentire de republicâ_ was long ago recognised as a condition of intimate friendship, how much more is the observation true of the _idem sentire de ecclesiâ_! the following letter, addressed to mr, hope early in by dr. philpotts, will show what powerful influences were still at work to gain or recover mr. hope's services to anglicanism in political life:-- _the right rev. dr. philpotts, bishop of exeter, to j. r. hope, esq._ bishopstowe: feb., . my dear sir,--... the miserable state of political matters makes me earnestly wish (which i fear you do not) that you may soon be in parliament. it is manifest that we are approaching a most important crisis. to give any rational ground of hope (humanly speaking) of a favourable issue, it is most necessary that there should be an accession of high- principled talent and power of speaking to the honest party. you would carry this, and, forgive my adding, _ought_ to carry it if a fit opportunity be presented to you. i say not this with any imagination that the objects of political ambition have any attraction to you, but because i think you would (with god's blessing) be a tower of strength to all the best institutions and interests of the country. _hactenùs hæc._ yours most faithfully, h. exeter. 'henry of exeter,' in a conversation with lady henry kerr in those days, once said that he considered three men as those to whom the country had chiefly to look in the coming time: manning in the church, gladstone in the state, and mr. hope in the law. the bishop was, i believe, thought rather apt to indulge in what were called 'philpottic flourishes,' but the above letter shows his deliberate opinion of mr. hope, which is quite borne out by the rest of his correspondence. he constantly asks his counsel on church affairs and church legislation, till his conversion was approaching; and even long after it, i find him in , when about to appeal to the house of lords from a decision in the courts below, asking mr. hope's assistance in these terms: 'i venture to have recourse to you--as one whose skill and ability, knowledge--as well as your kindness often experienced--makes me estimate more highly than any other.... i am _very anxious_ to obtain your powerful advocacy before the lords. is this contrary to your usage? [footnote: right rev. dr. philpotts to j. r. hope-scott, february , .] in a letter, now before me, from a member of the legal profession and a protestant, the writer, referring to some occasion in early days on which he had met mr. hope and mr. gladstone together in society, remarks: 'they were constantly discussing important questions. i am sure that, if a stranger had come in, and heard that one of them would be premier, he would have selected [mr. hope] as the superior of the two. and i always thought that his abilities and character fitted him for the highest positions in the country. but his aims were for eminence in a still higher sphere, and he readily abandoned the road to worldly distinctions when he thought that his duty towards god required the sacrifice.' of course i only quote this as evidence of the impression which mr. hope had made on an individual observer, [footnote: it is perfectly just.--_w. e. g._] not as instituting any comparison, which would be wholly out of place. the following letter is more of ecclesiastical and legal than personal interest. it is in reply to a line from mr. gladstone, asking his advice:-- _j. r. hope, esq. to the right hon. w. e. gladstone, m.p._ charles street: wednesday evening, march , ' . dear gladstone,--i had some hopes of being able to call on you this morning, but was disappointed. with regard to the canadian archbishopric, if you have seen what i wrote about a bishopric in the same colony you will have got the historical view which i was then induced to take. i am convinced that the parties to the treaty of paris and the framers of the first act contemplated a roman church with an anglican supremacy of the crown. their successors did not understand this, and proceeded upon the theory of toleration--thereby at once yielding the power of direct interference and refusing direct establishment. but in fact the r. c. church is established, and consequently rome has the advantage both of establishment and complete independence. i am not the man to say that the latter ought to be infringed, but i think it right to draw your attention to the departure from the original idea of the position of the r. c. church in canada. as matters now stand i think lord stanley had no option, and could only be neutral; but the original theory of royal supremacy having failed (as was natural), a concordat alone can decide the relations of church and state in that quarter. the question of precedence is certainly not in itself sufficient to decide the conduct of government, but it presents a difficulty; and the more difficulties there are, the more needs of a complete solution. it seems to me, therefore, that you must either follow lord stanley in his neutrality, and leave the consequences to chance, or at once originate a communication with the holy see; and for the latter purposes i think canada affords as fair an occasion as it is possible to find. yours ever truly, james r. hope. right hon. w. e. gladstone, m.p. in the same year, , the appointment of dr. hampden to the see of hereford was 'a heavy blow and great discouragement' to the tractarian party; but the correspondence does not throw much light on the subject as far as regards mr. hope. he must have felt his profession sucking him in like a vortex, from which it is wonderful how he could grasp the catholic faith in the end. many of his friends were now doing so, but he still held back. the following sentences from a letter he wrote to father newman, then (april , ) contemplating his departure for rome, will show something of mr. hope's then position--anglican ideas not so vanished that they might not possibly have been, at least in imagination, renewed--catholic ideas not yet distinctly written in their place. i can construe the obscure wish with which your letter concludes. i join heartily in desiring _some_ termination to my present doubts; but whether in the direction you would think right, or by a return to anglicanism, is the question. i am astonished to find how resolute keble is in maintaining his present position. others, also, of more earnestness and better knowledge than myself, are recoiling--and this troubles me, for i cannot but look around for authority. to his own family he became more and more reserved on the subject, and showed unwillingness that difficulties should be touched; for, great as was his wish that the church of england should assert herself catholic, he dreaded, on good grounds, that if awakened from her slumbers, the only effect would be that she would use her giant strength against her friends as well as enemies, hit them knocks, and then relapse into repose. unable even yet to make up his mind whether those of his friends who had joined the church of rome had done right or wrong, materially, at all events, he remained an anglican. such a state of mind necessarily varied, if not from day to day, at least at longer intervals. at the close of came the troubles at st. saviour's, leeds, a stronghold of the section peculiarly under dr. pusey's influence, which encountered the opposition of the old tractarianism, or rather church-of-englandism of dr. hook. they ended in some important conversions, but, as affecting mr. hope, seem scarcely to require to be dwelt on. in may i find him exerting himself in favour of mr. gladstone's candidature for the university of oxford. on december he writes (from rankeillour) to mr. gladstone on the question of jewish emancipation as follows:-- on the jewish question my bigotry makes me liberal. to symbolise the christianity of the house of commons in its present form is to substitute a new church and creed for the old catholic one; and as this is delusive, i would do nothing to countenance it. better have the legislature declared what it really is--not professedly christian, and then let the church claim those rights and that independence which nothing but the pretence of christianity can entitle the legislature to withhold from it. in this view the emancipation of the jews must tend to that of the church, and at any rate a 'sham' will be discarded. however, i am not disposed to press my views on this or similar points. i have withdrawn from church politics, and never had to do with any others. how long this peaceful disposition may last i know not, but my station in life does not seem to me to require that i should meddle. for this reason, if for no other, you may be sure i do not regret having lost the honour of being armour-bearer to the bishop of exeter in the hampden strife. that appointment, however, is certainly bad enough. mr. hope was now, in the ordinary sense of the word, 'settled in life' (he married in august of that year, ); but the great happiness he found in this change of condition was no talisman that could ward off the question which still imperiously demanded a solution; and perhaps scarce a month passed in these times without some new event arising to bring it more forcibly upon minds that had once been fairly within its influence. mr. hope's style in writing to mr. badeley on the hampden affair, under date january , , shows in some degree a renewed interest, but with symptoms, like the passage last quoted, of passing off into liberalism. i am right glad that you have got your rule, and have good hopes that you will make it absolute.... when the argument is resumed pray remember my favourite plan of establishing the old ecclesiastical law as the common law of england before the reformation, and requiring evidence of a direct statutory repeal. reid writes me that there is a fund for the expense of the opposition. if so i shall be happy to contribute, for i feel very strongly (not about dr. hampden, though i do feel as to him, but) about this violent piece of erastianism, such as no christian community ought to endure. following this, for about two years, the church of england was convulsed with the gorham case. this, too, has passed into the history of anglicanism. it will be sufficient to remind the reader that dr. philpotts, the bishop of exeter, had refused to institute the rev. g. c. gorham to the vicarage of brampford speke, because he denied the doctrine of baptismal regeneration, mr. gorham sued the bishop in the court of arches, but judgment was given by sir h. j. fust against the plaintiff, who then appealed to the crown, and the result was that the judicial committee of the privy council, on march , , reversed sir h. j. fust's judgment, and held that mr. gorham's doctrine was not repugnant to that of the church of england. on march a meeting was held at mr. hope's house in curzon street by several leading men of the tractarian party--the number, i believe, was fourteen--including mr. hope himself, archdeacon manning, archdeacon kobert wilberforce, and mr. badeley--to consider the effect of this sentence on the church of england. certain resolutions were passed and signed, and afterwards circulated in a somewhat modified form. the document, as finally issued, is to be found in more publications than one, and may be referred to in mr. kirwan browne's 'annals of the tractarian movement,' rd edition, p. . its main significance is contained in resolutions and , which are given as follows, in a printed copy now before me:-- . that inasmuch as the faith is one, and rests upon one principle of authority, the conscious, wilful, and deliberate abandonment of the essential meaning of an article of the creed destroys the divine foundation upon which alone the entire faith is propounded by the church. . that any portion of the church which does so abandon the essential meaning of an article of the creed, forfeits not only the catholic doctrine in that article, but also the office and authority to witness and teach as a member of the universal church. it is easy to see that these apparently strong declarations afforded a loophole for the escape of moderates; but mr. manning and his friends, as the result proved, were prepared to act upon them in their original and unqualified form; for all the four i have named, with two others, eventually became catholics. the rest of those present at the curzon street meeting remained protestants. as for mr. hope, the year rolled round, and he was still externally where he was; but the following allusion, in a letter of his to mr. gladstone, dated abbotsford, september , , to some recent conversions, must have made it evident that his own was drawing very near:-- i have heard a good deal on the ----'s: it is attributed more immediately to her--but however brought about, i cannot think hardly of it. rather, i feel as if those were to be congratulated who have already done that which _intellectually_, and to a great extent _morally_, i feel persuaded should be done. yrs. ever affectionately, james r. hope. the memorable 'papal aggression' excitement, which arose in england in november , is believed to have been what finally brought mr. hope to the conclusion, or rather, to action upon the conclusion, to which he had been so long tending. some time after this, when, in conversation, mr. lockhart asked him how it was possible he could have attributed such weight to so slight a reason, mr. hope replied to the effect that mr. lockhart would easily understand that the last link in a chain of argument on which action depends, needs not in appearance be the strongest. he spoke of his conversion as of a veil falling from his eyes. [footnote: a correspondence of this period of mr. hope's with the present cardinal newman (very important as far as it goes) has been given in some previous pages (pp. - ).] the same influence is visible in the letter in which mr. manning (since the cardinal archbishop of westminster) announced to mr. hope his resignation of the archdeaconry of chichester. _the rev. h. e. manning to j. r. hope, esq., q.c._ lavington: nov. , . my dear hope,--your last letter was a help to me, for i began to feel as if every man had gone to his own house and left the matter.... since then events have driven me to a decision. this anti-popery cry has seized my brethren, and they asked me to be convened. i must either resign at once, or convene them ministerially and express my dissent, the reasons of which would involve my resignation. i went to the bishop and said this, and tendered my resignation. he was very kind, and wished me to take time, but i have written and made it final.... i should be glad if we might keep together; and whatever must be done, do it with a calm and deliberateness which shall give testimony that it is not done in lightness. ever affectionately yours, h. e. m. mr. manning was considerably mr. hope's senior, [footnote: four years exactly. he was born july , . the same also was mr. hope's birthday.] but they had been brother-fellows of merton college, and were now intimate friends, passing through the same stages of conversion, each having great confidence in the logical powers and in the earnestness of the other in applying them. either at that time, or very soon afterwards, mr. manning became the guest of mr. hope at his house in curzon street; and here he used to receive the many converts and half-converts who flocked to consult him in their difficulties during that period of transition, when such an unexampled rush seemed to be making into the net of the fisherman. mr. hope's letters to cardinal manning were unfortunately destroyed about three years ago, but the other side of the correspondence is still represented by a small collection of letters of great interest. mr. hope, i think, had made up his mind at abbotsford, and on his arrival in london announced it to his mother; but it is certain that immediately before taking the final step he and mr. manning went over the whole ground again together, to satisfy themselves that there was no flaw or mistake in the argument and conclusion. _the rev. henry e. manning to j. r. hope, esq., q.c._ _private_. cadogan place: december , . my dear hope,--i feel with you that the argument is complete. for a long time i nevertheless felt a fear lest i should be doing an act morally wrong. this fear has passed away, because the church of england has revealed itself in a way to make me fear more on the other side. it remains, therefore, as an act of the will. but this i suppose it must be. and in making it i am helped by the fact that to remain under our changed or revealed circumstances would also be an act of the will, and that not in conformity with, but in opposition to intellectual real conviction; and the intellect is god's gift, and our instrument in attaining knowledge of his will.... it would be to me a very great happiness if we could act together, and our names go together in the first publication of the fact.... the subject which has brought me to my present convictions is the perpetual office of the church, under divine guidance, in expounding the truth and deciding controversies. and the book which forced this on me was melchior canus' 'loci theologici.' it is a long book, but so orderly that you may get the whole outline with ease. möhler's _symbolik_ you know. but, after all, holy scripture comes to me in a new light, as ephes. iv. - , which seems to preclude the notion of a divisible unity: which is, in fact, arianism in the matter of the church. i entirely feel what you say of the alternative. it is either rome or licence of thought and will.... believe me always affectionately yours, h. e. manning. the following extract from a letter of mr. hope's to the rev. robert campbell [since also a catholic], dated 'abbotsford, september , ,' affords additional and important light on the motives of his own conversion:-- you seem to think that the present condition of the church of england has been the cause of my conversion. that it has contributed thereto i am far from denying, but it has done so by way of evidence only; of evidence, the chain of which reaches up to the reformation, and confirms by outward proofs those conclusions which h. scripture and reason forced upon me as to the character of the original act of separation. this distinction i am anxious should be observed, for the neglect of it has led some to suppose that recent converts have, from disgust or other causes, deserted a true church in her time of need, whereas, for one, i can safely say that i left her because i was convinced that she never, from the reformation downwards, had been a true church. pray excuse this digression, which i do not mean by way of controversy, but merely of explanation. j. r. h. on _passion sunday_, april , , mr. hope, and at the same time with him mr. manning, were received into the catholic church at farm street by the rev. father j. brownbill, s.j. i must not withhold from the reader a note, written the next day, and one or two passages from later letters of mr. manning's referring to the same subject. _the rev. henry e. manning to j. r. hope, esq., q.c._ queen street: april , . my dear hope,--will you accept this copy of the book you saw in my room yesterday [the 'paradisus animae'], in memory of passion sunday, and its gift of grace to us? it is the most perfect book of devotion i know. let me ask one thing. i read it through, one page at least a day, between jan. and aug. , , marking where i left off with the dates. it seemed to give me a new science, with order and harmony and details as of devotion issuing from and returning into dogma. could you burden yourself with the same resolution? if so, do it for my sake, and remember me when you do it.... i feel as if i had no desire unfulfilled, but to persevere in what god has given me for his son's sake. believe me, my dear hope, always affectionately yours, h. e. m. _queen st.: oct._ , .--... i am once more in my old quarters. they bring back strange remembrances. what revolutions have passed since we started from this room that saturday morning! and how blessed an end! as the soul said to dante. 'e da martirio venni a questa pace.'... you do not need that i should say how sensibly i remember all your sympathy, which was the only human help in the time when we two went together through the trial, which to be known must be endured. _rome: march_ , ...--how this time reminds me of last year! on passion sunday i shall be in retreat. 'stantes erant pedes nostri,' [footnote: these words were written in a copy of the _speculum vitae sacerdotalis_, given by j. r. hope to h. e. manning in april . [note by his eminence cardinal manning.]] and we made no mistake in our long reckoning, though we feared it up to the last opening of fr. b.'s door. h. e. m. the superficial impression which many of his friends had of mr. hope's conversion at the time will be illustrated by the following remarks, one of them made to me in conversation with a view to this memoir: 'mr. hope was a man with two lives: one, that of a lawyer; the other, that of a pious christian, who said his prayers, and did not give much thought to controversy. he would be rather influenced by patent facts. he was not at all moving with the stream, and rather laughed at x. with his "narrow views." he was a strong anglican, an adherent of _learned_ anglicanism. his conversion took _catholics_ by surprise, who were not aware how far he went.' the feeling in society as to his change was marked by a tone of much greater consideration than was commonly displayed in such cases, of which proof is given in an interesting letter which i have quoted in a former page. 'as far as i know' (writes lady georgiana fullerton) 'there was no attempt made, in mr. hope's case, to trace that act to any of the causes which, in almost every other instance, were supposed to account for conversions to catholicism. the frankness of his nature, his well-known good sense, the sound clearness of his judgment, so unmistakably evinced in his profession, precluded the possibility of attributing his adoption of the catholic faith to weakness of mind, duplicity, sentiment, eccentricity, or excitability.' i reserve what may be called the domestic side of this crowning event of mr. hope's religious life to a future chapter. the following is the letter alluded to by mr. gladstone in his letter to miss hope-scott, given in appendix iii., and on which he wrote the words '_quis desiderio_.' [footnote: let me balance mr. gladstone's _quis desiderio_ with a note written by père roothaan, father-general of the jesuits, to count senfft, on hearing of mr. hope's conversion:-- 'plurimam salutem nostro c. de senfft, qui procul dubio maxima cum congratulatione accepit notitiam de conversione ad rel. cath. praeclari dni. hope, anglicani, quem ipse comes monachio romam venientem mihi commendaverat. ipsum tunc et iterum et tertio romam intra hos tres annos venientem videram saepius, et semper vicinior mihi visus fuerat regno dei. nuper tandem cessit gratiae. alleluja!'--given in a letter of count senfft's to mr. hope-scott, dated innsbruck: juin, .] _j. r. hope, esq., q.c. to the right hon. w. e. gladstone, m.p._ curzon street: june , ' . my dear gladstone,--i am very much obliged for the book which you have sent me, but still more for the few words and figures which you have placed upon the title-page. the day of the month in your own handwriting will be a record between us that the words of affection which you have written were used by you after the period at which the great change of my life took place. to grudge any sacrifice which that change entails would be to undervalue its paramount blessedness, but, as far as regrets are compatible with extreme thankfulness, i do and must regret any estrangement from you-- you with whom i have trod so large a portion of the way which has led me to peace; you, who are 'ex voto' at least in that catholic church which to me has become a practical reality, admitting of no doubt; you, who have so many better claims to the merciful guidance of almighty god than myself. it is most comforting, then, to me to know by your own hand that on the th june, , the personal feelings so long cherished have been, not only acknowledged by yourself, but expressed to me--i do not ask more just now--it would be painful to you; nay, it would be hardly possible for either of us to attempt (except under one condition, for which i daily pray) the restoration of entire intimacy at present; but neither do i despair under any circumstances that it will yet be restored. remember me most kindly to mrs. gladstone, and believe me, yours as ever most affectionately, james r. hope. the right hon. w. e. gladstone, &c. &c. the subjoined reply of mr. gladstone to this beautiful letter, which he has mournfully called 'the epitaph of our friendship,' is certainly a noble and a tender one. the very depth of feeling which he shows at his friend's refusal of what he considers 'the high vocation' before him, is, however, only a proof of that spiritual chasm which mr. hope more unflinchingly surveyed. after this date the correspondence soon flags, and at length sustains an interruption of years. it was practically resumed towards the close of mr. hope's life, and affords one more letter of great interest, in which mr. hope explains his own political views. this i shall give as we proceed. _the right hon. w. e. gladstone, m.p. to j. r. hope, esq., q.c._ carlton gardens: june , . my dear hope,--upon the point most prominently put in your welcome letter i will only say you have not misconstrued me. affection which is fed by intercourse, and above all by co-operation for sacred ends, has little need of verbal expression, but such expression is deeply ennobling when active relations have changed. it is no matter of merit to me to feel strongly on the subject of that change. it may be little better than pure selfishness. i have too good reason to know what this year has cost me; and so little hope have i that the places now vacant can be filled up for me, that the marked character of these events in reference to myself rather teaches me this lesson--the work to which i had aspired is reserved for other and better men. and if that be the divine will, i so entirely recognise its fitness that the grief would so far be small to me were i alone concerned. the pain, the wonder, and the mystery is this--that you should have refused the higher vocation you had before you. the same words, and all the same words, i should use of manning too. forgive me for giving utterance to what i believe myself to see and know; i will not proceed a step further in that direction. there is one word, and one only in your letter that i do not interpret closely. separated we are, but i hope and think not yet estranged. were i more estranged i should bear the separation better. if estrangement is to come i know not, but it will only be, i think, from causes the operation of which is still in its infancy--causes not affecting me. why should i be estranged from you? i honour you even in what i think your error; why, then, should my feelings to you alter in anything else? it seems to me as though, in these fearful times, events were more and more growing too large for our puny grasp, and that we should the more look for and trust the divine purpose in them when we find they have wholly passed beyond the reach and measure of our own. 'the lord is in his holy temple: let all the earth keep silence before him.' the very afflictions of the present time are a sign of joy to follow. thy kingdom come, thy will be done, is still our prayer in common: the same prayer, in the same sense; and a prayer which absorbs every other. that is for the future: for the present we have to endure, to trust, and to pray that each day may bring its strength with its burden, and its lamp for its gloom. ever yours with unaltered affection, w. e. gladstone. j. r. hope, esq. the following letter, written on the same occasion by another celebrated person, will be read with a very painful interest:-- _the rev. dr. döllinger to j. r. hope, esq., q.c._ munich: april , . my dear sir,--allow me to express the sincere delight which i have felt and am still feeling at the intelligence which has reached me of your having entered the pale of the church. this is indeed 'a consummation devoutly wished' ever since i had the good luck of making your acquaintance. how often when with you did the words rise to my lips: _talis cum sis, utinam noster esses!_ i knew well enough that in voto you belonged already to the one true church, but i could not but feel some anxiety in reflecting that in a matter of such paramount importance those who don't move forward must needs after a certain time go backward. then came the news of your marriage, and i don't know what put the foolish idea into my head that you would probably get connected with the 'quarterly review' and its principles, and that thereby a new barrier would interpose itself between you and the church, and that perhaps your feelings for your friends in germany would not remain the same. happily these _umbrae pallentes_ have now vanished, and i trust we will make the ties of friendship closer and stronger by establishing between us a community and exchange of prayers. i can but too well imagine how severe the trials must be to which you are now exposed--especially in the present ferment, when a vein of bitterness has been opened in england which will not close so soon, and when the hoarse voice of religious acrimony is filling the atmosphere with its dismal sounds. with the peculiar gentleness of your disposition you will have to encounter the fierce attacks of the [greek: ellaenes], as well as of the [greek: hioudaioi], i mean of those to whom the church is a [greek: skandalon], as well as of those to whom it is [greek: moria]. i can only pray for you, and trust that he who has given you the first victory of faith will also give you _robur et aes triplex circa pectus_, for less will scarcely do.... yours entirely and unalterably, j. doellinger. mr. james r. hope, queen's counsel. i have not met with any later correspondence of dr. döllinger's with mr. hope-scott than this, excepting a mere note. he visited abbotsford in . there is a letter of count leo thun's to mr. hope (dated wien, den . juli ), in which, after expressing the joy he had felt at the news of his having become a catholic, he remarks, 'i know how slowly, and on what sure foundations the decision came to maturity in your soul.' two letters of mr. hope's to mr. badeley, though not coincident in point of time with the event before us, contain passages so closely connected with it as to find their place here. though mr. badeley's anglicanism was scarce hanging by a thread, he held out for a time, but became a catholic previously to july , . _j. r. hope, esq., q.c. to e. badeley, esq._ abbotsford: oct. , ' . dear b.,-- ... as for you, i hold your intellect to be catholic. you cannot help it, but your habits of feeling will give you, as they gave me, more trouble than your reason. how can it be otherwise, considering how many years of training in one posture we both of us underwent? but i pray and hope for you, and that speedily, that freedom of life and limb which has been vouchsafed to me. freedom indeed it is, for it is to breathe in all its fulness the grace and mercy of god's kingdom, instead of tasting it through the narrow lattices of texts and controversies. to believe christ present in the eucharist, and not adore him--not pray him to tarry with us and bless us. to hold the communion of saints, and yet refuse to call upon all saints--living and departed, to intercede for us with the great head of the body in which we all are members. to accept a primacy in st. peter, and yet hold it immaterial to the organisation of the church. to acknowledge one church, and then divide the unity into fragments. to attribute to the church the power of the keys, and then deny the force of her indulgences while admitting her absolutions. to approve confession, and practically set it aside. to do and hold these and many other contradictions--what is it but to submit the mind to the fetters of a tradition which, if once made to reason, must destroy itself?... yrs ever affly, james r. hope. abbotsford: july , . dear badeley,--i received your most kind letter yesterday. i well knew that i should hear from you, for you are an accurate observer of my birthdays-- not one for many years having escaped you. this one does indeed deserve notice in one sense, as being the first on which you and i could salute each other as catholics. may god grant that this his great gift may be fruitful to us both! forty years of my life are already gone--of yours, more. let us try to make the best of what may still remain. we have now all the helps which christ's death provided for us, and all the responsibilities which come with them. 'deus, in adjutorium meum intende. domine, ad adjuvandum me festina!... yrs most affly, james r. hope. e. badeley, esq. to the above correspondence, the following scrap from a letter of mr. david lewis, congratulating mr. hope on his conversion, may form an appropriate _pendant_, as showing mr. hope's influence in the catholic direction previously to that event: 'i may add that i owe in part my own conversion to conversation with you, which turned me to a course of reading the end of which i did not expect. it is therefore no small joy to me to see you in the same harbour of refuge' (may , ). some years later (in spring, ) it was a subject of intense joy to mr. hope-scott when the news came from rome that william palmer had been received into the church by father passaglia. chapter xxii. - . review of mr. hope's professional career--his view of secular pursuits-- advice from archdeacon manning against overwork--early professional services to government--j. k. hope adopts the parliamentary bar--his elements of success--is made q.c.--difficulty about supremacy oath--mr. venables on mr. hope-scott as a pleader--recollections of mr. cameron--mr. hope-scott on his own profession--mr. hope-scott's professional day-- regular history of practice not feasible--specimens of cases: . the caledonian railway interposing a tunnel. . award by mr. hope-scott and r. stephenson. . mersey conservancy and docks bill, 'parliamentary hunting- day,' liverpool and manchester compared. . london, brighton, and south coast and the beckenham line. . scottish railways--an amalgamation case-- mr. hope-scott and mr. denison; honourable conduct of mr. hope-scott as a pleader. . dublin trunk connecting railway. . professional services of mr. hope-scott to eton--claims of clients on time--value of ten minutes-- conscientiousness--professional income--extra occupations--affection of mr. hope-scott for father newman--spirit in which he laboured. on taking the step of which i have just related the history, mr. hope had not to encounter the usual array of external ills that assail the convert's life. although he was now a catholic, his eloquence had lost none of its magic, and railway directors were not very likely to indulge their bigotry at the expense of their dividends. he lost not, i suppose, a single retainer, and his practice at the bar went on as before. his conversion, however, affords us a convenient point at which to turn aside and review his professional career, contrasting so singularly with what the ordinary observer would have anticipated for him under such a condition. we are so much accustomed to associate religious doubts or convictions with an unworldliness which is rarely visible where great worldly success is attained, that on leaving the cloisters of oxford, and entering with him the committee-rooms of the houses of parliament, we seem to behold the curtain raised all at once, and the same actor appearing in a totally new character, with hardly a feature left that can identify him with the previous representation. he was, indeed, himself not insensible to this contrast, and had early marked off from purely secular pursuits that choice and precious portion of his time which could be reserved for higher objects. an interesting passage in a letter of his to mr. gladstone (dated from lincoln's inn, june , ) will illustrate this feeling by a phrase which i italicise, as i believe he was fond of using it: 'my reason for staying in town is to read ecclesiastical law, and to prepare (if so be) for election committees. _the former branch i reckon my flower-garden, the latter my cabbage- field.'_ [footnote: see letter of mr. gladstone to miss hope-scott, appendix iii.] when anglicanism and its institutions had broken down under him, and others not as yet come in their place, he sought in the purely temporal works of his calling perhaps a refuge from doubts, certainly a means of sanctification; and either alternative explains the issue. a religious mind could never succeed in silencing religious difficulty by earthly pursuits, but in whatever measure it sought to sanctify the latter, would be led onwards to the faith. the following passage from a letter of the then archdeacon manning (now cardinal archbishop of westminster) to mr. hope (dated dec. , ) will show that this ardent and restless application to his profession was watched at the time by mr. hope's friends with some degree of anxiety and surprise. the kind and wise admonitions it conveys, only distantly indeed bearing on the religious side of the question, many may read with much profit:-- as a bystander i see you working too much, and looking at times overwrought; and i ask myself, what is this man's aim? it must needs be something very high and far off to need all this unremitting tension of mind. i do much wish to see you more relaxed, and with more play. i know it is a more difficult attainment to be able both to work intensely and to relax thoroughly. but without it a man deteriorates. he becomes a keen, case-hardened tool, and no man. our friends the germans are not far wrong when they talk about developing what is universal in man, i.e. his humanity, which is a whole, and must be unfolded as a whole to be perfect, or even to approximate perfection. you will burn this if i go on, so i will leave you to lancilotti. believe me ever yours affectly, h. e. manning. the field finally adopted by mr. hope was the _parliamentary bar_, at which, as we have seen, he had practised to a certain extent from the first, though with considerable interruption from the legal and financial affairs of his college and the sarum chancery, as well as other weighty business, including in services rendered as counsel to the government in the preparation of the foreign marriages bill; in of the consular jurisdiction bill, the report which he furnished on which, to be seen in the parliamentary records, would alone have been sufficient to have made a great reputation in that particular line; and in - he was engaged by government in the matter of the franco-mexican arbitration to prepare a report on some points in dispute between france and mexico, which had been submitted to the arbitration of great britain. i presume that his retainers in these cases would be principally due to the fact that his brother, mr. george w. hope, was now a member of the government as under secretary of state for the colonies in sir robert peel's administration. but the 'fame' that had already gone abroad regarding him, particularly for his learning in all matters that touched ecclesiastical law, would have been sure, independently of private interest, to have brought him early into prominence. the ecclesiastical courts bill in engaged much of his attention, and his share in the legal business connected with troubles of that year at oxford has been noticed in its place. on october , , he took his degree of d.c.l. at oxford. in , at the suggestion of the bishop of london (right rev. dr. blomfield), he was accepted by the lord chancellor as one of the persons to consider the chapter on offences against religion and the church in the proposed code of criminal law. in a short, time, however, his practice seems to have merged in the department with which his name is principally connected, that of railway pleading. this branch of the profession, though affording little or no scope for those powers of oratory which his first speech before the lords showed that he possessed, nor yet opening those avenues to power and fame which usually tempt minds of his class, were undoubtedly highly lucrative, and by this time mr. hope's charities must have nearly exhausted his modest patrimony. it had also one great advantage, in its business being principally confined to the parliamentary session, thus leaving him free to travel six months in the year. i have seen it stated that in conversation with a friend he gave this as his chief reason for adopting it. he may have said so half in jest; but there can, i believe, be little doubt that a far deeper reason was that the parliamentary bar was likely to present fewer cases of difficulty in point of conscience than he would have had to encounter in the common law courts. it is needless to mention, except for the sake of the few persons who may not happen to have even that superficial acquaintance with the subject which newspaper reading can supply, that advocates practising at the parliamentary bar are engaged in pleading for or against the private bills referred to committees of parliament, relating, for example, to railways, canals, docks, gas-works, and the like. these are each referred to a committee of five, supposed to represent the whole house; witnesses of course are examined, and counsel heard on behalf of the companies or individuals concerned. to plead before a tribunal of such a nature and on such interests evidently demands qualifications of a special kind. mr. hope possessed some external ones which are by no means unimportant. his noble presence, in the first place, gave him a great advantage; and a known name and known antecedents like his were also additional recommendations of great value. then came his tact, clearness of intellect, memory for names and details, his moral qualities, especially his perfect sense of honour, which gained him the ear of the committees, and, what is still more difficult, enabled him to keep it. mr. hope then very early attained to the front rank in his profession, and on the retirement of mr. charles austin, q.c. ( ), and the deaths of sergeant wrangham (_d_. march ) and mr. john c. talbot, q.c. (_d_. ), may be said to have had no rival in reputation or practice until the present sir e. b. denison 'gradually began to compete with him on not unequal terms.' mr. st. george burke, q.c., mr. merewether, q.c., and mr. rodwell, q.c., were other contemporaries of his, who all had a large practice and great reputation, but were, i believe, as seldom as possible pitted against mr. hope-scott. early in mr. hope received a patent of precedence, entitling him to rank with her majesty's counsel; and in april of that year attended the levee as q.c. it was at his own request that the dignity of the silk gown was conferred upon him in this form; and his reason was a conscientious difficulty about taking the oath of supremacy so far as it denied the papal authority, ecclesiastical or civil, as existing _de facto et de jure_ in the realm. he states his difficulty in a letter to mr. badeley (february , ), as follows:-- that the pope _does_ exercise jurisdiction in this country is notorious; and that he ought to do so over r. catholics seems to be admitted by the present state of the law as to that church. the oath, then, cannot be taken as it was originally meant, and the only sense in which i think it can be accepted is, that the pope has not, nor without consent of the legislature ought to have, an external coercive power over the queen's subjects. but this compromise did not satisfy him, and he therefore refused the silk gown, except under the conditions previously stated, which did not require him to take the oath of supremacy at all. his request for the patent of precedence, and his reasons for wishing it, were conveyed through a legal friend to the then lord chancellor, lord cottenham, who made no difficulty whatever in granting it. the following anecdote will amuse the reader. when the chancellor had to report to the premier (lord john russell) the various appointments he had made, lord john asked lord cottenham why he had given mr. hope-scott a patent of precedence instead of making him a q.c. on the chancellor's replying that he had done it because of mr. hope-scott's scruples about the oath, lord john exclaimed, 'that's more than i would have done.' such illustrations of mr. hope-scott's professional success as i have been able to collect, either from oral sources or correspondence, may fitly be introduced by a valuable paper on his characteristics as an advocate by mr. g. s. venables, q.c. it is obviously drawn up with great care and reflection by a skilled observer, who had the best opportunities for arriving at a correct judgment. i omit the two opening paragraphs, the principal facts contained in which have been given in a former page. criticism on mr. hope-scott's characteristics as a pleader. by g. s. venables, esq., q.c. the bar is exempt from envy of merited success, and mr. hope-scott's undisputed pre-eminence never provoked a feeling of personal jealousy. though he cultivated little intimacy with his professional associates, his courtesy and good humour never failed; and he showed due appreciation of the services a leader requires from his junior colleagues. his singularly attractive appearance produced its natural effect in conciliating those around him, and the pleasant and cheerful manner which nevertheless repelled familiarity tended to make him generally popular. the most remarkable forensic qualities of mr. hope-scott were facility, prudence, and grace of language and manner. the subtlety of his intellect, if it had been ostentatiously displayed, might perhaps have impaired the confidence which he had the art of inspiring. inexperienced members of the tribunals before which he practised were tempted to forget that he was an advocate, while they listened to the perspicuous statements which led up with apparent absence of design to a carefully premeditated conclusion. it could never be suspected from his manner that he was constantly supporting a paradox, or that he anticipated defeat. when he had occasion in successive contests to maintain opposite propositions, it seemed that the circumstances of the case, not the position of the advocate, had been changed. in parliamentary practice there is no room for the more ambitious kinds of eloquence, nor can it be known whether mr. hope-scott would have been capable of elevated declamation. [footnote: of the latter, however, two or three specimens are given in this memoir. see vol. i. (pp. , ), vol. ii. (pp. - ).] in dealing with questions of fact, of expediency, of equitable policy, and of complicated agreement, he has probably never been excelled. his lucid arrangement of topics, his pure polished style, and his appearance of dispassionate conviction secured the pleased attention of his audience. the more tedious parts of his argument or narrative were from time to time relieved by touches of the playfulness which is more popular than humour; but the colleagues and opponents who thoroughly understood his object, knew that it was pursued with undeviating constancy of purpose. in the lightest of his speeches there was neither carelessness nor vacillation. less finished advocates turn aside to indulge themselves in playing with an illustration or a favourite proposition, at the risk of betraying the distinction between their own natural train of thought and their immediate argument. mr. hope-scott was too consummate an artist to be tempted into irrelevance or digression. his success would not have been less complete if his practice had required him to trace the fine analogies and close deductions of law. his intellect was admirably adapted to the comparison of precedents and to the application of legal principles. his acuteness was at the same time comprehensive and minute, and he delighted in finding appropriate expression for the nicest distinctions. when he had sometimes occasion to spend hours in contesting the clauses of a bill, he had a surprising faculty of averting the weariness which is ordinarily inseparable from the prolonged discussion of details. professional associates, who willingly recognised his general superiority, sometimes confessed that in the most irksome of their contests they were placed at an exceptional disadvantage in comparison of mr. hope-scott's felicitous adroitness. he excelled in dealing with skilled witnesses, who were themselves from the nature of the case supplementary advocates. the object of cross-examination, where there is little serious dispute as to the facts, is to draw from the mouth of a hostile witness the other half of the story. an accurate memory, stored by abundant experience, enabled mr. hope-scott to recall the history of every railway company, the expressed opinions of general managers, and the characteristics and theories of engineers. the wariest veterans needed all their caution to anticipate the design of the friendly conversation which gradually tempted them to damaging admissions. he was slow to resort to harder modes of attack, of which he was at the same time fully capable. every facility was offered to a candid and confiding witness, and there was still greater satisfaction in baffling the vigilance of an adversary who was on his guard against an attack from a different quarter. a hostile witness, after an encounter with mr. hope-scott, sometimes found that his answers formed a plausible argument in favour of the proposition he had intended to confute. his perplexity must have been increased when he afterwards heard his own statements reproduced in the speech of the opposing counsel. almost the only point in which mr. hope-scott could be charged with a want of caution consisted in his frequent affirmation of certain general opinions, such as the common and questionable doctrine that competition cannot last where combination is possible. an advocate who is changing his clients is ill-advised in hampering himself with the enumeration of maxims which may from time to time be quoted against him. in such cases mr. hope-scott almost converted a self-imposed difficulty into an additional resource. with marvellous ingenuity he proved that any competition scheme which he happened to support formed an exception to the rule which he carefully reasserted; and unsophisticated hearers admired the consistency with general principles which was found not to be incompatible with immediate expediency. it is almost superfluous to say that mr. hope-scott never exceeded the legitimate bounds of forensic debate. all litigated questions, and especially this species of private legislation, have two sides, and it is the business of an advocate to present in the most favourable light the cause which he is retained to defend. deliberate sophistry is as culpable as false relations of fact; but completeness or judicial impartiality belongs to the tribunal, and not to the representative of the litigant. when all moral scruples have been allowed their full weight, the qualifications of a great advocate are almost exclusively intellectual. it is to this part of mr. hope-scott's character that i have strictly endeavoured to confine myself. it is probable that an attempt to analyse a distinct personal impression may have produced but a vague result. i have little doubt that, although mr. hope-scott was almost unequalled in professional ability, his real life lay outside his occupation as an advocate. the grounds of the affection and admiration with which he is remembered by his family and his nearest friends have but a remote connection with the faculties and accomplishments which i have endeavoured to describe. another friend (mr. h. l. cameron), who had continual opportunities, from about the year , of observing mr. hope-scott's character in its professional aspect, furnishes some very interesting reminiscences, on a part of which, however, it may be worth while to observe that the versatility and pliability of intellect which the writer so well describes in mr. hope-scott is no doubt more or less common to every great barrister, and is a habit to which all who are actively engaged in the profession are obliged to train their minds as they can. still, it is equally certain that mr. hope-scott possessed this faculty in an uncommon degree; and, in order to form a complete idea of him as he appeared in the eyes of his contemporaries, as well as to understand the relations of one part of his character to another, it is necessary to draw these features in considerable detail. after noticing particularly a very pleasing trait in mr. hope-scott's demeanour as a leading counsel, shown in the kindness and tact with which, in consultation, he took care to prevent the inexperience or ignorance of his juniors being made apparent, and sought rather to ask them questions on points which they were likely to know something about, mr. cameron continues as follows:-- recollections of mr. h.l. cameron. what made mr. hope-scott so much loved by all who were brought into contact with him was his great amiability, thorough kindness of heart: his care was always not to hurt or wound another's feelings; and even in the heat of debate, and under great provocation, i never heard him utter an unkind word, or put a harsh construction on the conduct of any one, even an adversary. as regards his talents, they are so universally known and admitted, that i can say very little you have not heard already. westminster has rarely-- never certainly in later years--heard such an advocate. the secret of his great success at the bar, beyond his intellectual power, lay, i think, in a peculiar charm and fascination of manner--a manner which could invest the driest and most technical matters with interest, and compelled the attention of the hearers to the subject under discussion. the melody of his voice was, to me, one of his greatest attractions. then, again, what a noble presence! and that goes a long way at the bar. i can look back, and see now, as he used to walk into his room to attend some consultation, how vigorous, handsome, and stately he always appeared, bringing the force of his powerful intellect at once to bear upon the subject under consideration, doing all in such a genial manner, without any attempt at showing his mental superiority to those around him. in those busy times he would perhaps be engaged in twenty different cases on the same day; the competition to engage him was most keen: it was almost the first thing one thought about when clients came to consult upon a new scheme. he would go from one committee to another, by some extraordinary means always being at the place where he was most needed. it was marvellous how he kept all these matters distinct in his brain; he was never in confusion or at fault. in one room he would open a case, say an improvement bill, with a brilliant speech setting forth all its merits, a speech which would probably immediately impress the committee and carry the case, whatever after arguments might be urged against it, or speeches made by other counsel. then he would go into another room, and cross-examine a skilled witness in a railway case, showing his intimate knowledge of engineering, and beating the witness perhaps on his own ground. then he would take an irish case, or a gas and water bill, or landowner's case, whose property was about to be intersected, a ratepayer's, a carrier's, each case being thoroughly gone into, and thoroughly mastered and understood. after all this, and late in the day, when any one else would have felt fatigued and exhausted, in mind at any rate, if not in body, he would go into a room where an inquiry had been going on perhaps for weeks, and reply on the whole evidence. those who know what labour this entails can alone appreciate such a capability. no one at the bar whom i have ever heard reasoned with such perfect lucidity. he would explain a case which his client the solicitor would have wrapped up in fifty or sixty brief sheets, and involved in as much obscurity as it were well possible, to a committee in a few minutes; and i have often thought his clients never understood their own cases until he had explained them. it was wonderful how he could make a committee (sometimes composed of by no means the highest specimens of mankind) understand a case; and his persuasive power with those tribunals was also marvellous. one word more on his character in his business life, and that is as to his entire conscientiousness. no case did he ever consider insignificant or beneath his notice. he gave the same attention to the humblest client that he would to a duke. he never left anything he had to do _half_ done: his work was thorough, complete, good. time, which he considered his client's, was never wasted; and to enable him to get through his work he would rise at four or five o'clock in the morning, and he would be engaged either getting up a case, attending consultations, or in committee until five or six o'clock in the evening. his life was an exact fulfilment of that precept, 'whatsoever thy hand findeth to do, do it with thy might.' [footnote: mr. h.l. cameron. letter to miss hope, october , .] to what has now been expressed by critics so competent, i shall add the only passage which i have been able to discover, in which mr. hope-scott has left on record any opinion relating to himself in connection with his professional experience in an intellectual point of view. in pleading before the select committee of the lords, on behalf of eton college, on the public school bill of , after stating his objection to the notion of such subjects as natural philosophy playing so very large a part in early education as some persons would have them do, he goes on to say:-- i, if i may venture here to speak of myself, have observed enough in a life which has been tolerably devoted to business to know this, that the possession of knowledge upon any one subject is worthless compared to the possession of a power of using it when you have got it. my lords, in my profession, though not in my part of it, there are many men who will take up a patent case, or a mining case, without the slightest previous knowledge of the natural sciences relating to it, and who will make statements to a jury which the scientific men at hand will stand aghast at; what does that mean? it means that they have been so trained in the acquisition of knowledge when presented to them, that it becomes to them a mere matter of get-up, in many instances, to acquire an amount of knowledge which would absolutely electrify many a learned society. [footnote: _min. evid. sel. com. public sch. b._ p. .] notwithstanding the qualification under which mr. hope-scott here speaks, it will be seen from a case i shall presently cite (the 'caledonian railway,' p. ) that he describes a faculty he was of course aware that he himself possessed. he said, i believe, in conversation, that there was hardly any subject which he had not had occasion to look up in his profession, and this was one of the reasons which made him so fond of it. it will perhaps give pleasure to those whose affection for mr. hope-scott's memory has suggested this record, if i note down some particulars of his daily round of occupations during the most active period of his life, principally supplied me (with other interesting details) by the kindness of mr. john q. dunn, who, from the year until the end, was mr. hope- scott's confidential clerk, continually about him in the most unreserved trust, made out his daily _agenda_, and was intimately acquainted with all his habits and ways. mr. hope-scott rose early, between five and six o'clock, made his coffee, and then went through his devotions, a black ebony crucifix, with the figure of our lord in brass, on the table before him. wherever he went he had this carried with him. [footnote: this particular crucifix, however, was only used by mr. hope-scott after his first wife's death. it was the one which she held in her hands when dying.] his next employment was his brief, which he read with great rapidity, [footnote: 'bellasis says you never read even a brief, but divine its contents in half the time required.'--bishop grant to mr. hope-scott, november , .] making notes as he went on. this lasted till about eight, when he dressed and breakfasted. he then drove from his private residence, or from norfolk house, to attend consultations in chambers at . . each consultation lasted five or ten minutes, sometimes fifteen, never more, until eleven o'clock, not a minute being wasted. public business then commenced, in the lords at eleven, in the commons at twelve. his papers having been taken over to the various committee-rooms, he would go from room to room, making a speech here, or cross-examining witnesses there, as the occasion might require, throughout the day. he was always cool and business-like, never in the slightest degree flurried. this, which was only due to his immense self-control, made people _imagine_ that the work was excessively easy to him. business before the committees lasted till four, when the bags were collected (which were a porter's load); and in chambers another series of cases ensued, from four to five or six. in the intervals of business he would dictate, with surprising exactness and calmness, letters on his private affairs, such as the management of his highland estate--minute directions for painting outhouses it might be, or the like small matters. at six he went home in a cab, tired and exhausted; dinner followed, after which he invariably went to sleep for two hours, waking up about ten, when he read his prayers. he commonly slept sound, and got up next morning bright and fresh. clients sometimes came as early as six or seven, and had undivided attention for three-quarters of an hour: these audiences amounted, in fact, to fresh verbal briefs, but were never charged for, as the arrangement was made for his own convenience. on first undertaking to write this memoir, the idea naturally suggested itself whether it might not be possible to give something like a connected history of mr. hope-scott's practice at the bar, especially considering the great social interest of the whole subject of railway construction in these countries, of which it really forms part. but i was assured by those thoroughly conversant with the matter, that such a task was not to be thought of. legal arguments, occupying many hours for days together, however extraordinary they no doubt were as efforts of talent, and however important to those concerned at the time, who, perhaps, might be seen expecting, with white faces, the long-pending decision of committees for or against them, cannot, after the lapse of a generation, nay, after a far shorter interval than that, be even understood without an amount of labour which few would be inclined to devote to them. it may, indeed, be said that railway law is the creation of such great advocates as mr. hope-scott, who reigned supreme in their own province at the time of its formation; and no doubt suggestions of counsel may have been adopted into law. but how to assign to each his share in the mighty structure? or guess to whom any particular change may have been due? it would at all events be the office, not of the biographer, but of the historian of jurisprudence. i shall nevertheless so far venture to deviate from the advice to which i have referred as to notice five or six cases, not as being in every instance of special and remembered celebrity, but merely as specimens of the kind of practice in which mr. hope was engaged. two of these will also give me the opportunity of quoting some clever articles from the contemporary newspaper press, serving to show what the opinion about mr. hope-scott was at the time, as the criticisms of his professional friends already given convey to us a distinct idea of the impression which he produced on his brethren of the bar. i take first a case in which the caledonian railway company were concerned, as it is very clearly and concisely explained by mr. hercules robertson (better known as lord benholme, his title as lord of session), one of the counsel associated in it with mr. hope-scott, in a letter which has been kindly communicated to me:-- . _the caledonian railway_.--'we were associated together as counsel for the caledonian railway company in supporting several important bills upon parliamentary committees, involving difficulties of no ordinary magnitude. one very important object that company had to attain was leave to alter their entrance into glasgow by lowering their access by many feet of perpendicular elevation. their bill proposed to effect this by a tunnel which had to be interposed between the canal above, on the surface, and the edinburgh and glasgow railway beneath. our tunnel had to pass between these hostile undertakings just at the point where the former of these lay above the other with a very scanty space between. the difficulty was to induce the committee to believe that the thing was possible--that it was in the power of engineering to thread a way for the caledonian railway so as not to bring down the water of the canal on the one hand, or to break into the other railway by destroying its roof on the other. mr. hope-scott had a power of persuasion that owed its efficacy not more to his commanding talents than to his straightforward ways and his honest and candid manner, which seemed to afford a satisfactory pledge that he would not seriously and anxiously advocate anything that was not true and possible. by his powerful assistance the caledonian company carried their bill, and in the course of the proceedings i had a full opportunity of estimating the elements of success in mr. hope-scott's career which made him one of the most popular of parliamentary counsel. i need hardly say that his kindness and courtesy to myself were all that i could expect or wish from one with whom i was otherwise so closely connected.--h. j. rorbetson.' . _award by mr. hope-scott and mr. r. stephenson_.--in mr. hope- scott was associated with mr. robert stephenson, the celebrated engineer, in making an important award upon certain questions in difference between the london and north-western and north staffordshire railway companies. this document, dated october , , appears in the newspapers of the day; but either to quote from or analyse it would not be of the slightest interest to my readers. a letter of mr. r. stephenson's to mr. hope-scott on some private business of later date is of more value for our purposes as showing the opinion which this great engineer had formed of mr. hope-scott in his own field, and also that these two remarkable men were by that time on the terms of intimacy that might be expected where minds of such calibre, and so capable of understanding each other, met in the conduct of affairs. _robert stephenson, esq., c.e. to j. r. hope-scott, esq., q.c._ great george street: feb. . my dear hope-scott,--i have a sketch, in hand for your bridge. your specification is excellent. i know what you want exactly. if i had not finished my engineering career, i should certainly have been jealous of your powers of specification. i do not know that it is sufficient to base a contract upon that would hold water in law; nevertheless, it is sufficient for me. i cannot offhand state the cost; but when the sketch and estimate are made, you shall see them; and if the cost exceeds your views, there will be no harm done; on the contrary, i shall have had the pleasure of scheming a little for you by way of pastime. yours faithfully, egbert stephenson. james hope-scott, esq. . the mersey conservancy and docks bill.--the speeches delivered by mr. hope-scott in this case (june and , ) on behalf of the corporation of liverpool against the mersey docks and conservancy bill, were considered as among his greatest forensic efforts. his engagement in it was originally due to an accident, the brief having been given in the first instance to mr. plunkett, in whose chambers, as already mentioned. mr. hope had been a pupil. mr. plunkett having been prevented by illness from taking the brief, it was placed in the hands of mr. hope-scott, who made a brilliant use of the opportunity. to place the reader in possession of the main question, it may be sufficient to state that the object of the bill was to consolidate the liverpool and birkenhead docks into one estate, so as to vest the whole superintendence of the mersey in one body, principally elected by the docks ratepayers for the time being. this was felt by the corporation of liverpool as an unjust interference with their local rights, and the case is argued by mr. hope-scott (when he comes upon general grounds) as one in which the commercial was being sacrificed to the jealousy of the manufacturing interest, and the principle of local government to that of centralisation. the reasonings as to matters of fact and business which make up the great bulk of these speeches are quite outside of our range, which can only deal with that which is more popular and rhetorical. two specimens in the latter style i venture to quote--one of them appearing an excellent example of the genial humour he knew so well how to throw around the driest of arguments; the other a highly coloured view of the history and position of liverpool in the commercial world, and of the danger of disturbing it in obedience to the clamour of its manufacturing rivals. the treatment of the subject rather reminds us of burke's manner, and it is easy to see that mr. hope-scott's own political feelings, always constitutionally conservative, would here assist his eloquence, as, in a far higher degree, the same sympathies had added splendour to his early display before the house of lords. in the case before us it is hardly necessary to say that millions of money were concerned. an exciting scene is remembered in connection with it, the secretary of the birkenhead docks fainting away during the proceedings. mr. hope-scott is _said_ to have received a fee of , _l_.; but a friend, likely to be well informed, thinks this is a fable. the parliamentary hunting-day: a change of mount. [after describing the provisions of an earlier centralising scheme proposed by government in , mr. hope-scott proceeds:] well, sir, all this set the game fairly afoot; and such a day's sport could hardly have been anticipated since the days when-- earl percy of northumberland a vow to god did make, his pleasure in the scottish woods three summers' days to take. the queen herself had not indeed made a vow, but had announced the hunting from the throne. the royal commissioners had driven the whole country for game, and there was a large field, nearly all the counties of england being interested spectators; the hounds in good condition--very skilful whips-- everything seemed to promise a fine day's sport: and what would have been the issue is not very easy to foresee, had it not been for what i may be allowed to term (pursuing the metaphor) the very unfortunate riding of the gentleman who, upon that occasion, acted as huntsman. it appears from his own statement at the outset that he had very little previous acquaintance with the country; but he went off with very considerable confidence upon 'the shipping interest,' and there seemed to be every prospect of his having a pleasant ride; but as he got along, he seems to have found the ground deeper and the fences stiffer than he had reckoned upon, and, moreover, that 'the shipping interest' had been a good deal exhausted in the service of the department before. so about the middle of the day (it is more easy to give a description of personal events in the form of analogy than from direct representation)-- about the middle of the day he seems to have changed his mount; and when he was next seen he was going at a tremendous rate across country, firmly seated upon the 'natural rights of man.' as you may suppose, he very soon made up for lost ground upon so splendid a creature. but the difficulties began when he came up with the hunt; for the horse in question is a desperate puller, very awkward to manage in old enclosures, and not at all accustomed to hunt with any regular pack, least of all with her majesty's hounds. the consequence was what might have been expected. he was hardly up with the hounds when he was in the middle of them, rode over half the pack, and headed the whole; and so there was nothing for it but for the master of the hounds to call them off, and declare he would not hunt that country again until he had had a further survey made of it. now i have endeavoured to give, in as gentle a manner as i can, an account of that which caused the principal disaster on this famous sporting day. it was stated that further information was necessary. but another member of the government described the difficulty in a good deal broader terms. mr. labouchere declared that 'the sons of zeruiah had been too strong for them.' however that may be, a select committee was appointed. [footnote: _report: mersey conservancy and docks_, westminster, , p. .] comparison of liverpool with manchester. what has made liverpool? manchester says it has made liverpool. sir, the east and west indies, america and africa and australia have made liverpool, just as they have made manchester. we know that for a long time that western side of the kingdom was far behind the eastern portions of it; that it had no wool trade, which was the old staple of the country; that south lancashire was covered with forests; that in edward the second's time there was but one poor fulling-mill in manchester: and what has been the eventual result? after long waiting, after long delays, a new continent in the far west, and a new british empire founded in the far east, have come to the relief of that portion of the country; that, concurrently with the development of that system, a brindley, a watt, an arkwright, a george stephenson arose. and so it is that liverpool became what it is; and so it is that manchester became what it is. but who was watching this great design of providence in its small beginning? who was fostering the trade? who was promoting the internal communications with manchester? who was spending money and giving land for the benefit of the infant trade? it was the corporation of liverpool.... where was representation and taxation then, sir?... you cannot have it till the port is made. you cannot have it till the risk has been run, till the ratepayers have been created. then, no doubt, you may turn round upon the body who have made the port, made the ratepayers, made them what they are; and you may insist upon dethroning them from that position which they have occupied, at so much risk and so much labour, up to the time when the full development of the trade takes place. now, sir, that is the case with liverpool. it is the case with nearly all the remarkable ports of this kingdom. and then, forsooth, when all this has been done, and when liverpool has nursed from its infancy the rising trade of the mersey, watched it, developed it into a system which is unequalled, i venture to say, in the habitable world, we are to have gentlemen from manchester coming down upon us to tell us that the true nostrum to make a port is taxation and representation, and to turn out those who, before there was any trade to tax, taxed themselves in order to create it. * * * * * apart from the great western company's intervention this is a case of manchester against liverpool; in other words, it is a struggle between a manufacturing and a commercial interest. now, sir, what is called the balance of power in the british constitution, meaning as it does the equipoise caused by conflicting interests and passions, is a principle which is not confined to constitutional forms, but works out throughout the whole body of society; and we find a gradual tendency in latter days to conflicts between classes, and classes which were before allied together against other classes. we know the distinctions between land and trade, speaking generally, and the conflicts which have ensued. in these latter days we have had trade subdivided into manufactures and commerce.... what you are asked to do now is to humble a commercial interest at the instance of a manufacturing interest.... there can be no doubt, sir, that if we contrast the habits of mind of different classes, commercial pursuits give a different tone and a different feeling. i am not saying it is better, i am not saying it is worse--that is not my question--but a different tone and feeling from what manufacturing pursuits do. i will not even analyse the cause of it; but i may state this much, that commerce has that which manufacture has not. it has its traditions and its history upon a higher and very different footing: it has even its romance and its poetry. a profession exercised within a port which is associated with such names as those of tyre, of byzantium, of venice, of genoa, of the hanse towns, and many of the chief cities of history, may be said to have some liberal features which i do not say are beneficial; i am merely saying that they are different from those which arise out of the associations of manufacture. images of greatness and of splendour are connected with the one much more than with the other, and the term 'merchant princes' is a term which neither historians nor orators would treat as otherwise than properly applied to many of the chief men of the cities which i have named in former days, and many of the chief men of the cities with which we are now dealing. moreover commerce brings the parties engaged in it into connection and contact with almost the whole known world. liverpool is not the liverpool of lancashire only, or of cheshire only, or of england only; liverpool is the liverpool of india, of china, of africa, of north and south america, of australia--the liverpool of the whole habitable globe; and she has her features of distinction; she has her habits of thought and feeling, her traditions of mind fostered by influences such as these. there she sits upon the mersey, a sort of queen of the seas; and manchester, her sister, looks at her and loves her not. _she_ too is great, and _she_ too is powerful--but she is not liverpool, and she cannot become liverpool. at liverpool she is lost in the throng of nations and the multitude of commerce; she is merely one of the many customers of the port. well, as she cannot equal liverpool, what is the next thing? it is to pull down liverpool; to make liverpool, forsooth, the piraeus of such an athens as manchester! that, sir, will suit her purpose, but will it suit yours?... no commercial interests can act, sir, more than any other interests, without some local association, without some united home, such as is afforded in the constitution of our own port.... to found upon injustice, and to proceed by agitation, to put down a rival whom they cannot help admiring though they cannot love--that, sir, is a process neither worthy of them nor likely to accord with the views of the constitutional politician, who is willing indeed that, according to the natural force of circumstances and the development of time, every interest should acquire its legitimate position in the balance of power under the constitution, but who certainly would not lend his aid to destroy by anticipation and violently any of those great commercial landmarks which remain--and long may they remain--in this country, standing monuments of the past, and affording in the present working of different political passions and interests a counterpoise, the loss of which would soon be felt, and would lead every one to regret the legislation which had converted this bill into an act. (pp. , , - .) . _the l. b. & s. c. company--the beckenham line_.--in this great case mr. hope-scott was retained by the london, brighton, and south coast railway company to oppose a bill by which it had been sought to construct a new and rival line by beckenham, and, with his usual address, succeeded in turning it out. the question was one of considerable local importance, and on its decision a clever article appeared in the 'west sussex gazette,' written by the editor of that paper, the late mr. william woods mitchell, in whose sudden death in the public press of england lost a most able and talented journalist, who (i may remark in passing) had as considerable a share as any one in carrying the principle of unstamped newspapers. his description of mr. hope-scott's style of pleading is interesting, as conveying the impressions of a very sharp-sighted spectator, and, so to speak, placing before our bodily vision what such refined criticism as that of mr. venables has addressed rather to the eye of the mind. to one of an impulsive temperament mr. hope-scott's unconcern and _sang- froid_ is perfectly irritating. it is amazing how he remembers minute points and names. from the highest questions of policy down to mr. ellis's cow and ladder case he was 'up' in detail, never lost for a word, and not to be astonished at anything. if the house of commons were on fire he would ask the committee simply if he should continue until the fire had reached the room, or adjourn on the arrival of the engines. whilst he delivers his speech he is keeping up a little cross-fire with the clerks behind, who scratch out the evidences and papers as he requires them. now he will drink from the water-glass, now take a pinch of snuff, then look at his notes, or make an observation to some one; but still the smooth thread of his speech goes on to the committee: but it is smooth, and says as plainly as possible, 'my dear friend, i am not to be hurried, understand that if you please.' when, however, mr. scott has a joke against his learned friend he looks round, and his dark eyes twinkle out the joke most expressively.... there was a slight twinkle as he said to the committee, 'now i come to the question of gradients.' it was amusing to see the five m.p.s twist in their chairs, and how readily the chairman told mr. scott the committee required to hear nothing further about gradients. had the question of gradients been entered upon, one might have travelled to brighton and back ere it was concluded. mr. hope-scott had the advantage of a good case, and he 'improved the occasion.' he further had the advantage of the three shrewd gentlemen at his elbow, messrs. faithfull, slight, and hawkins, who allowed no point to slumber. the great features in favour of the brighton company were--first, that their line was acknowledged by all to be well connected; secondly, that parliament had never granted a competing line of as palpable a character as the beckenham; thirdly, that it had been shown by a committee of inquiry that competing lines invariably combine to the detriment of the public; and lastly, that the opposition line was not a _bonâ fide_ scheme, and not required for the traffic of the district. mr. denison replied at a disadvantage. [the chairman announced:] 'the committee are unanimous in their decision that the preamble of the bill has _not_ been proved.' the b. and s. c. has won the race. another victory for _scott's lot!_ [footnote: _scott's lot_. there was a celebrated trainer of the day, named scott; and this expression was very familiar in the records of the turf.] the beckenham project thrown out. [footnote: _west sussex gazette_, june , .] the same writer (i have been told) also remarked that mr. hope-scott succeeded with the committee by making an exceedingly clear _statement_ of the case, thereby making them think that they knew something about it--and that was half the battle. when it was over, mr. hope-scott observed to a friend, 'it is very likely i shall hear of that again; and very probably i shall be on the other side.' in fact, the affair got mixed up with the south-eastern, from which company mr. hope-scott received a prior retainer, and carried the beckenham line against the l. and b. on that occasion he met the probable production by the opposing counsel of the statement from his previous speech by showing that circumstances alter cases, and that two or three years make a great difference. these latter particulars, however, i only give as conversational. to prevent any adverse impressions which might be given by such random talk, i would remark in passing, that a case like the foregoing is not a question of right or wrong, truth or falsehood, but of a balance of _expediency_, which it is a counsel's business in each instance to state, though certainly not to _overstate_. further on (p. ) the reader will find evidence of mr. hope-scott's resolute conscientiousness in the matter of fees. . _scottish railways: an amalgamation case_.--a bill for the amalgamation of certain scottish railways was one of the great cases in which mr. hope-scott was concerned in the parliamentary session of . a correspondent of the 'dundee advertiser' takes occasion from it to contribute to that journal a sketch of mr. hope-scott's personal history and professional career, with sundry comments on his style as an advocate. from this article i shall quote so much as refers in general to the scottish part of his practice, and particularly to the case above mentioned. it will be perceived that the writer takes a comparatively disparaging view of mr. hope-scott's manner of pleading; but this only shows the coarse drawing which those who write for the people often fall into, like artists whose pictures are to be seen from a great distance. for convenience of arrangement i make a transposition in the passage which i now place before the reader. mr. hope-scott in pleading his cases has a peculiarly easy style of speech, which can hardly be called oratory, because it would be ridiculous to waste high oratory on a railway or a waterworks bill. but he has an apparently inexhaustible flow of language in every case he takes up, and every point of every case. he has little gesture, but is graceful in all his movements. he fastens on every point, however small--not a single feature escapes him; and he covers it up so completely with a cloud of specious but clever words, that a parliamentary committee, composed as it is of private gentlemen, are almost necessarily led captive, and compelled to view the point as represented by him. it was eminently so in the amalgamation case. the specious excuses for unmitigated selfishness there put forth were poured into the ears of the committee with such an air of innocent candour, and with such a clever copiousness, that the committee was, as it were, flooded and overwhelmed by his quiet eloquence; and though mr. denison with the keen two-edged sword of his logic cut through and through the watery flood in every case, it was just like cutting water, which immediately closed the moment the instrument was withdrawn. i am not doing mr. scott injustice when i say that in the amalgamation case his tact was at least in as much demand as his ability, and that for downright argument his speeches could not for one moment be compared to those of mr. denison. but having a bad case to begin with, and having to make a selfish arrangement between two railway companies appear a great public advantage, he certainly, by his quiet skilful touches, turned black into white before the committee with remarkable neatness. his reply on the whole case was another flood of rosewater eloquence, which rose gently over all the points in mr. denison's speech, and concealed if it did not remove them. it was like the tide rising and covering a rock which could only be removed by blasting. mr. denison has the keen logical faculty which enables him to bore his way through the hardest argument, and blast it remorselessly and effectually as the gunpowder the rock. mr. scott, again, prefers to chip the face of the rock, to trim it into shape, to cover it over with soil, and to conceal its hard and rocky appearance under the guise of a flower-garden, through which any one may walk. and with ordinary men this style of thing is very popular. i do not mean that mr. scott is incapable of higher things. far from it. i believe that had he to plead before a judge few could be more logical and powerful than he; but it is a remarkable evidence of the 'scottishness' of his character, if i may coin a phrase, that when he has to plead before a committee of private gentlemen who have to be 'managed,' he should deliberately select a lower style of treatment for his subjects. * * * * * from his birth and social position, his mixing with the noblest and best society in the land, and his versatility and quick perceptive powers, mr. hope-scott is so thoroughly master of the art of pleasing that a committee cannot fail to be ingratiated by him; and is certainly never offended, as he is gentlemanly and amiable to a fault. his temper is unruffled, and his speeches brimful of quick wit and humour; and when a strong-minded committee has to decide against him, so much has he succeeded in ingratiating himself with them that it is almost with a feeling of personal pain the decision is given. i remember seeing the chairman of one of the committees look distinctly sheepish as he gave his decision against mr. scott, and could not help thinking how much humbug there was in this system of parliamentary committees altogether. * * * * * mr. hope-scott has had a great deal to do in regard to dundee and district business in parliament. he represented the harbour trustees when they obtained their original act, and he has had a hand in forwarding or opposing most of the railways in the district. he was employed by mr. kerr at the formation of the scottish midland; and i may mention that he was also employed in regard to the original forfar and laurencekirk line. in his conduct of the latter case a characteristic incident occurred which shows the highly honourable nature of the man. it was at the time of the railway mania, when fancy fees were being given to counsel, and when some counsel were altogether exorbitant in their demands. mr. hope-scott was to have replied on behalf of the forfar and laurencekirk line, but intimated that he would not have time to do so, he being engaged on some other case. it was supposed, as fancy fees were being freely offered to secure attendance, that mr. scott was dissatisfied with his, and accordingly an extra fee of guineas was sent to him along with a brief and a request that he would appear and make the reply. mr. scott sent back the brief and the cheque to the agents, with a note stating his regret that they should have supposed him capable of such a thing, also stating that he feared he would not have time to make the reply; but requesting that w. kerr, of dundee, should be asked to visit him and prepare him for the case, that he might be able to plead it if he did find time. this was done; he did find the time, he pleaded the case, but would not finger the extra fee! how different this conduct from that of some of the notorious counsel of those days, who, after being engaged in a case, sometimes stood out for their , -guinea fees being doubled before they would go on with it!' [footnote: i have heard of even a stronger case at that period than those alluded to by this writer--of a brief of _l_. being returned by the counsel and agents backwards and forwards till it reached , _l_.] ('dundee advertiser,' july , .) . _dublin trunk connecting railway_.--this was a case of some interest in or , when schemes were in agitation for the connection of lines and the construction of one great central station for dublin. seven bills had been proposed, two of which their supporters had great hopes of carrying: the dublin trunk connecting line few had thought would pass, when mr. hope-scott went into the committee-room one afternoon, examined some witnesses, and made a speech which carried all before it; and, to the astonishment of all, the bill passed. the project, indeed, was never realised, but all agreed that mr. hope-scott's single speech before the committee had snatched the affair from the hands of all the other competing parties. . his professional services to his old college of eton in one important case (the public schools bill of ) have already been more than once referred to. [footnote: see vol. i. p. , and the present vol. ii. p. .] but he similarly assisted eton on other occasions also. one of these was a contest it had with the _great western railway company_ in , and which did not terminate in complete success; but his exertions (which were gratuitous) called forth a most emphatic expression of thanks in an address to him from the head-master (dr. hawtrey) and from the whole body of the masters. they say:-- it would indeed have been impossible by any such payment to have diminished our debt. for we feel that you spoke as if you had a common interest in our cause, and the advocate was lost in the friend. nothing was wanting in our defence which the most judicious eloquence, combined with the sincerest regard for eton, could supply:-- si pergama dextra defendi possent, etiam hâc defensa fuissent. but if the great object of our wishes could not be obtained against an opposition so powerful, restrictions have been imposed on the direction of the great western line, which would not have been granted but for the earnestness of your address to the committee; and whatever alleviations there may be to the evils which we expected, we shall owe them entirely to your advocacy. i have little to add to what has now been brought together, yet a few scraps may still interest the reader. mr. hope's first general retainers (as already stated) date in ; but by the time he retired he was standing counsel to nearly every system of railways in the united kingdom (not, however, to the great western, though he pleaded for them whenever he could--that is, when not opposed by other railways for which he was retained). with the london and north-western he was an especial favourite. it is believed that on his retirement his general retainers amounted to nearly one hundred--an extraordinary number; among which are included those given by the corporations of london, edinburgh, dublin, liverpool, and others. there was, in fact, during his last years, constant wrangling among clients to secure his services. the cry always was 'get hope-scott.' that there may have been jealousy on the part of some as to the distribution of time so precious, may easily be supposed. i find a hint of this in a book of much local interest, but which probably few of my readers have met with, 'the larchfield diary: extracts from the diary of the late mr. mewburn, first railway solicitor. london: simpkin and marshall [ ].' under the year mr. mewburn says (adding a tart comment):-- the london and north-western railway company had, in the session of , twenty-five bills in parliament, all which they gave to mr. hope-scott as their leader, and he was paid fees amounting to , _l_., although he was rarely in the committee-room during the progress of the bills.-- 'larchfield diary,' p. . as to this, it must be observed that the companies engaged mr. hope-scott's services with the perfect knowledge beforehand that the demands on his time were such as to render it extremely doubtful whether he could afford more than a very small share of it to the given case. they wished for his name if nothing else could be had; and, above all, to hinder its appearing on the opposite side. it was also felt that his powers were such, that a very little interference or suggestion on his part was very likely to effect all they wished. people said, 'if he can only give us ten minutes, it will _direct_ us. we don't want the chief to draw his sword--he will win the battle with the glance of his eye.' in reference to one case i have described (no. ) a client exclaimed, 'even in ten minutes he put all to rights. we should have gone to pieces but for those ten minutes.' one is reminded of the exclamation of the old highlander who had survived killiecrankie: 'o for one hour of dundee!' with these facts before us, and the astonishing unanimity of the best informed witnesses, as to mr. hope- scott's straightforwardness and high sense of honour, i think mr. mewburn's objection is sufficiently answered. a remark, however, may be added, which i find in an able article in the 'scotsman' (may , ): 'often unable to attend his examination of minor witnesses, mr. hope-scott nevertheless took care to possess himself of everything material in their evidence by careful reading of the short-hand writers' notes, and he always contrived to be at hand when the examination of an important witness might be expected to prove the turning-point in his case.' the same writer goes on to say:-- mr. hope-scott was not classed as a legal scholar, nor did his branch of the profession, which was the making, not the interpreting of laws, demand that accomplishment. his power lay, first, in a strong common sense and in a practical mind; next, in a degree of tact amounting to instinct, by which he seemed to read the minds of those before whom he was pleading, and steered his course and pitched his tone accordingly; and lastly, in being in all respects a thorough gentleman, knowing how to deal with gentlemen.... though sincere and zealous in [religious] matters, mr. hope- scott never, in his intercourse with the world and with men of hostile beliefs, showed the least drop of bitterness, or fell away in the smallest degree from that geniality of spirit which marked his whole character, and that courtesy of manner which made all intercourse with him, even in hard and anxious matters of business, a pleasure, not only for the moment, but for memory. the following anecdote will serve to show that mr. hope-scott was not the man to abuse the power which of course he well knew that he possessed, of 'making the worse seem the better cause.' once when engaged in consultation with a certain great advocate, they both agreed that they had not a leg to stand upon. ---- said that he would speak, and did deliver a speech which was anything but law. mr. hope-scott being then called, bowed, and said that he had nothing to add to the speech of his learned friend. 'how could you leave me like that?' asked the other. 'you had already said,' replied mr. hope-scott, 'that you had no case.' in his latter years mr. hope-scott was thought to have become rather imperious in his style of pleading before the parliamentary committees: i mention this, not to pass over an impression which probably was but incidental. of an opposite and very beautiful trait see an example in mr. gladstone's 'letter' (appendix iii.). it is obvious that mr. hope-scott's professional emoluments must have been, as i have already said in general, very great. notwithstanding his generosity and forbearance, it was no more possible for him, with his talents and surroundings, to avoid earning a splendid income than (as clarendon says of the duke of buckingham) for a healthy man to sit in the sun and not grow warm. into the details of his professional success in this point of view i must refrain from entering. although, considering the great historical interest of the era of 'the railway mania,' the question of the fees earned by a great advocate of that period can hardly be considered one of merely trivial curiosity, still, the etiquette and let me add the just etiquette, of the profession would forbid the use of information, without which no really satisfactory outline of this branch of my subject could be placed before the reader, least of all by a writer not himself a member of the profession. the popular notion of it must, i suppose, have appeared not infrequently in the newspapers of the day--an example may be found at p. of this volume--and but very recently a similar guess appeared in a literary organ of more permanent character. but to correct or to criticise such vague statements on more certain knowledge, even if i possessed it, is what can hardly be here expected. indeed, i ought rather to ask pardon for mistakes almost certainly incident to what i have already attempted. in concluding the present subject i may remark that mr. hope-scott's professional labours by no means represent the whole work of his life. nominally, he was supposed to be free for about half the year, but in reality this vacant time was almost filled up by other work of a business nature undertaken out of kindness to friends or relations--precisely what the old romans called _officia_. such was the charge of the great norfolk estates, and of the long-contested shrewsbury property; [footnote: bertram talbot, last earl of shrewsbury of the catholic branch, had bequeathed considerable property to lord edmund howard (brother-in-law to mr. hope-scott), on condition of his assuming the name of talbot. his right to make this bequest was disputed by his successor, and a protracted litigation ensued in and the next few years, throughout which mr. hope-scott acted as friend and adviser of the howards, to whom he was guardian. the importance of this _cause célèbre_ here consists chiefly in the self-sacrificing labours by which mr. hope-scott succeeded in saving something for his relative out of the wreck, when to rescue the whole proved to be hopeless. i am not aware that it need be concealed that he had a very strong opinion against the justice of the decision.] such was another trust, on a considerable scale, for connections of his family in yorkshire, involving, like the former, a great deal of travelling, for he was not satisfied with merely looking at things through other people's eyes. such, too, his guardianship of his elder brother's eight children [footnote: mr. george w. hope died on october , --a great sorrow to mr. hope-scott, to whom for years, in the earlier part of his career, his house had been a home, and who regarded him throughout with deep affection.] for about ten years before his death. a fourth may be added, that of the family of mr. laing, solicitor at jedburgh, a convert who died young, requesting mr. hope to protect the interest of his seven children. a fifth, too--the guardianship of the children of his old legal tutor, mr. plunkett. the four first-mentioned guardianships occupied mr. hope till nearly the end of his life. and, on the top of all this, add a most voluminous correspondence, in which his advice was required on important subjects by important persons--and often on subjects which were to them of importance, by very much humbler persons too. of the spirit in which he laboured, the following passage of a letter of his to father (now cardinal) newman gives an idea. like some other letters i have quoted, it almost supplies the absence of a religious diary of the period. it is an answer to a letter of dr. newman's, presently to be given (p. ). _j. r. hope-scott, esq., q.c. to the very rev. dr. newman._ abbotsford: dec. , . dear father newman,--... and now a word about yourself. i do not like your croaking. you have done more in your time than most men, and have never been idle. as to the way in which you have done it i shall say nothing. you may think you might have done it better. i remember that you once told me that 'there was nothing we might not have done better'--and this was to comfort me; and it did, for it brought each particular failure under a general law of infirmity, and so quieted while it humbled me. and then as to the future: what is appointed for you to do you will have time for--what is not, you need have no concern about. there! i have written a sermon. very impudent i know it is; but when the mind gets out of joint a child may sometimes restore it by telling us some simple thing which we perhaps have taught it. pat your child then on the head, and bid him go to play, while you brace yourself up and work on, not as if you must do some particular work _before_ you die, but as if you must do your best _till_ you die. 'alas! alas! how much could i say of my past, were i to compare it with yours! and my future--how shall i secure it better than you can yours? but i must not abuse the opportunity you have given me.... with all good wishes of this and every season, yours very affectionately, james r. hope-scott. the very rev. dr. newman, birmingham. chapter xxiii. - . mr. hope's engagement to charlotte lockhart--memorial of charlotte lockhart--their marriage--mr. lockhart's letter to mr. j. r. hope on his conversion--filial piety of mr. hope--conversion of lord and lady henry kerr--domestic life at abbotsford--visit of dr. newman to abbotsford in --birth of mary monica hope-scott--bishop grant on early education--mr. lockhart's home correspondence--death of walter lockhart scott--mr. hope takes the name of hope-scott--last illness and death of mr. lockhart--death of lady hope--letter of lord dalhousie--mr. hope-scott purchases a highland estate--death of mrs. hope-scott and her two infants--letters of mr. hope- scott, in his affliction, to dr. newman and mr. gladstone--verses in -- letter of dr. newman on receiving them. this biography here reaches the point where the history of mr. hope's marriage may fitly be placed before the reader. it was an event which, as i have already hinted, may very probably have been connected, like his eager pursuit of the bar, with the break-down of his early ideas as to the church of england. yet, viewed merely in its worldly aspects, the step was one which could have caused no surprise, the time for it having fully arrived, as he was now thirty-five, in a conspicuous position in society, and making a splendid income. the lady of his choice was charlotte harriet jane lockhart, daughter of john gibson lockhart, and granddaughter of sir walter scott. it was through lady davy that mr. hope had made mr. lockhart's acquaintance; and thus what appeared a very meaningless episode in his juvenile years materially affected his destiny in life. in a letter of july , , to his sister, lady henry kerr, he speaks as follows of the important step in life he had decided upon, and of the character of his betrothed:-- i have for a long time contemplated the possibility of marriage, and had resolved that, all things considered, it might, under god's blessing, be the best course which i could pursue. it was not, however, till i had made acquaintance with charlotte lockhart that i was satisfied i should find a person who in all respects would suit me. this a general knowledge of her character (which is easily known) convinced me of, and i then proceeded rapidly, and, as far as i can judge, am not mistaken in my choice. she is not yet twenty, but has lived much alone; much also with people older than herself, and people of high mental cultivation. she has also had the discipline of depending on those habits of her father which are inseparable from a literary and, in some degree, secluded life. in short, she has had much to form her, and with great simplicity of character, and unbounded cheerfulness, she combines far more thought than is usual at her age. having no mother and few connections, she is the more likely to become entirely one of us; which i value, not only on my own account, but for the sake of my mother, to whom i am sure she will be a very daughter. i have said more to you about her than i have written to any one else, for i distrust marriage puffs, and desire that people may judge for themselves.... you may be assured that i look upon marriage in a very serious light; and i pray god heartily that it may be to us, whether in joy or sorrow, the means of mutual improvement, so that, when the account is rendered, each may show some good work done for the other. yours affectionately, james r. hope. a little expedition which ensued on the engagement was long remembered as affording a very bright passage in their lives. with lady davy as kind chaperon, mr. hope and his betrothed visited his brother-in-law and sister, lord and lady henry kerr, at the rectory of dittisham, near dartmouth, that the future sisters might become acquainted. the exquisite beauty of the scenery about the dart, the splendour of the weather, and the charm of the moment, altogether made this a time of happiness not to be forgotten by any of those who shared in it. to the outline conveyed in mr. hope's letter i shall add a few traits obtained from other sources, and thus complete, as far as possible, the image they present. charlotte lockhart is described as a very attractive person, with a graceful figure, a sweet and expressive face, brown eyes of great brilliance, and a beautifully shaped head: the chin indeed was heavy, but even this added to the interest of the face by its striking resemblance to the same feature in her great ancestor, sir walter scott. a dearly cherished portrait of her at abbotsford shows all that sweetness we should expect, yet it is at the same time full of character and decision. her style of dress was marked by singular simplicity; and, unless to please her husband, or when society required it, she rarely wore ornaments. she was of a bright and cheerful nature, at first sight extremely open, but with that reserve which so often shows itself, on further acquaintance, in minds of unusual thoughtfulness and depth. there was something especially interesting in her manner--a mixture of shyness and diffidence with self-reliance and decisiveness, quite peculiar to herself. her look, 'brimful of everything,' seemed to win sympathy and to command respect. without marked accomplishments, unless that of singing most sweetly, with a good taste and natural power that were always evident, she had a passion for books, about which, however, she was particularly silent, as she dreaded anything like pretensions to literature. her talent and quickness made everything easy to her, and she seemed to get through all she had to do with great facility. but this was much assisted by an extraordinary gift of order and method, which enabled her, without consulting her watch, to fix the instant when the time had arrived, for example, for prayers, so that her friends would say they felt sure she carried a clock in her head. punctual to a minute, she seemed never to lose a moment. she governed herself by a rule of life, drawn up for her by bishop grant (and afterwards by cardinal manning), memoranda of which were found in her prayer-book. notwithstanding ill-health, she almost always commenced her devotions, even if unable to rise early, at six in the morning, and observed a perfect system in the round of her daily duties. she was never idle, and nothing that might be called her recreations was allowed to be decided by the wish of the moment, but was all settled beforehand--the time to be allotted, for instance, to a carriage drive, or to visiting. mr. hope-scott himself said of her, that if she lay down on the sofa in the afternoon to enjoy a few hours of dante or tasso, you might be sure that every note had been answered, every account set down and carefully backed up, every domestic matter thoroughly arranged. as lady davy expressed it, 'she was a very busy little housewife, putting order into every department.' of the usual lady's industry of needlework, plain or fancy, she got through an amazing quantity; but she was also, in her early years, of great use to her father, whose companion she had been in a literary life of great loneliness, by relieving him of much of his correspondence. the same diligent and endearing aid she afterwards rendered to her husband in all his harassing overwork. her great love and admiration for him, combined with her own natural reserve, made her somewhat disinclined to go into society; and in his compulsory absences, at which she was never heard to murmur, she could be happy for weeks together, with her child, in a comparatively solitary life at abbotsford. yet she was also quite able to appreciate society, and is described by her friends as a delightful companion, hardly ever talking of herself, and always charitable in talking of others. though placed in the state of riches, and having unlimited permission from her husband to spend as much as she pleased, she was notwithstanding never wasteful, but governed her household expenditure with the prudence of an upright and well-regulated mind, taking the greatest pains that all around her should have strict justice. she spent nothing needlessly upon herself, but gave largely, and in the most self-denying manner, for charitable purposes, especially the orphanage under the sisters at norwood, which she appears to have constantly endeavoured to follow in spirit, making her inner life, as far as possible, that of a religious. she is remembered to have disposed of, for the sake of the norwood orphanage, a precious ornament, given her by her husband, which had belonged to the empress josephine; but a portion was reserved for a lady altar in the church of st. mary and st. andrew, galashiels. when in london, it was her delight to visit st. george's hospital, where her attendance was efficient and regular, so long as she was able to render it. mr. hope and charlotte lockhart were married at the parish church of marylebone on august , , his brother-in-law, lord henry kerr, officiating; and after the wedding he took his bride to the duke of buccleuch's house at richmond, which had been lent to them for the honeymoon. the autumn was spent at rankeillour, and the winter at lady hope's in charles street. in mr. hope rented abbotsford from his brother-in-law, walter lockhart scott, and removed thither in august of that year. on the death of the latter, in , he became its possessor in right of his wife, and for the remainder of his days made it his principal residence. mr. hope's conversion, as we have seen, took place before easter in . to his wife, the surrender of united prayer (of all trials the severest on both sides) was a sore distress: but the perception of truth is always aided by consistency, at whatever sacrifice; she had read and thought much on the controversy, and by whitsuntide had followed her husband into the true fold. mr. lockhart regarded his son-in-law's conversion as a grief and a humiliation; but, nevertheless, the nobleness of his nature, and the deep regard he always felt for his virtues, prevailed without an effort. his letter on that occasion does himself as much honour as it does to mr. hope. _j. g. lockhart, esq. to j. r. hope, esq., q.c._ s[ussex] p[lace]: april , . my dear hope,--i thank you sincerely for your kind letter. i had clung to the hope that you would not finally leave the church of england; but am not so presumptuous as to say a word more on that step as respects yourself, who have not certainly assumed so heavy a responsibility without much study and reflection. as concerns others, i am thoroughly aware that they may count upon any mitigation which the purest intentions and the most generous and tender feelings on your part can bring. and i trust that this, the only part of your conduct that has given me pain, need not, now or ever, disturb the confidence in which it has of late been a principal consolation to me to live with my son-in-law. ever affectionately yours, j. g. lockhart. that incipient leaning to catholicity which is so observable among the literary men of the later georgian era, especially of the school of sir walter scott, was probably not wanting in mr. lockhart. at rome he seems to have chiefly lived among catholics; and quite in keeping with this view is an anecdote i have heard, of his observing to mr. hope, when once at mayence they were watching the crowd streaming out of the cathedral, 'i must say this looks very like reality.' this was in the course of a visit they made to germany in , when mrs. hope was staying at kreuznach for her health. as for lady hope, her decidedly protestant principles caused her to feel profound distress when her son became a catholic. she anxiously sought to know what roman catholics really believed, and whether they worshipped the blessed virgin or not. her son wrote her the following beautiful letter the christmas eve after his conversion:-- _j. r. hope, esq., q.c. to his mother, the hon. lady hope._ abbotsford: dec. , ' . dearest mamma,--... writing on christmas eve, i cannot forbear, dearest mamma, from wishing you the blessings of this season, although i feel that in doing so i must necessarily cause painful thoughts; but amongst these, i trust, you will never admit any which imply that my love for you has diminished, or that i profess a religion which does not enforce and cherish the feelings of duty and affection which i owe to you. that i have often been wanting in my conduct towards you i well know and sincerely regret; but i can safely say that you have been throughout my life, to me, as you are still, an object of love, respect, and gratitude such as i scarcely have elsewhere in the world. take then, dearest mamma, your son's christmas prayers. they are addressed to the god who gave you to me, and whom i thank heartily for the gift; and if i believe that his will has been manifested otherwise than you see it in some things, remember that this does not extend to the precepts of love and charity, or alter one tittle of my obligation and desire to be and to show myself to be your most affectionate son, james r. hope. in the course of mr. hope's brother-in-law and sister, lord and lady henry kerr, were received into the catholic church. they ultimately settled near abbotsford, at huntley-burn, a name familiar to all who have read lockhart's 'life of scott,' which afforded more frequent opportunities for the intimate and affectionate intercourse which existed between the families. mr. hope's other immediate relatives, however unable they might be to sympathise with his change, retained their love and admiration for him undiminished. writing from luffness to mr. badeley (jan. , ), he says: 'here there has been no controversy, it being agreed that we shall not _talk_.... we meet everywhere so much kindness now, that we can make no pretence to confessorship.' his life as a catholic, now that he had once found anchorage in the faith, passed in unbroken peace of mind, in wonderful contrast to the storms of which we have been so long telling, that swept over him before he reached this haven. the years immediately succeeding mr. hope's marriage with charlotte lockhart were probably the happiest of his life. he was then most buoyant, most in health, most himself, and at the height of his intellectual powers. his improving and practical hand was soon felt wherever he resided. he did much for rankeillour, but for abbotsford wonders. the place had been greatly neglected, the trees unthinned, and everything needing a restoration. he added a new wing to the house, formed a terrace, and constructed an ingenious arrangement of access by which the tourists might be admitted to satisfy their curiosity, while some sort of protection was afforded to the domestic privacy of the inmates. [footnote: particulars of some of the improvements will be given later on. the new house at abbotsford was begun about , and completed and furnished in .] what he did for the church i shall tell by-and-by. [footnote: see chapter xxvi.] at both rankeillour and abbotsford mr. hope maintained a graceful hospitality, in every way befitting his position. a letter which has been communicated to me from a lady (now a nun) who was on a visit at abbotsford during the autumn and winter of , gives a very pleasing and distinct idea of the domestic life there during that brief period of happiness, which, however (as we shall see presently), was already chequered by sorrow destined in the divine providence to become yet deeper and sadder. to this letter i am indebted for the following particulars, which i have ventured slightly to rearrange, yet keeping as closely as possible to the words of the writer:-- the impression left by that most interesting and charming family could never be effaced from my mind. it always seemed to me the most perfect type of a really christian household, such as i never saw in the world before or since. a religious atmosphere pervaded the whole house, and not only the guests, but the servants must, it seems to me, have felt its influence. but, apart from that, there was so much genial hospitality, and every one was made to feel so completely at his ease. mr. hope-scott was the _beau idéal_ of an english gentleman, and a model catholic devoted to the service of the church, doing all the good that lay in his power, far and near. there was a quiet dignity about him, and at the same time he was full of gentle mirth, full of kindness and consideration for others; and for every one with whom he came in contact, high and low, rich and poor, there was a kind word or a generous act. among all the guests of this happy interval, [footnote: lord and lady arundel and their family, count thun, lady davy, lady lothian, lord traquair, bishop carruthers, mr. badeley, &c.] none were more joyfully welcomed than dr. newman, who spent above five weeks at abbotsford during the winter of - , though a much longer visit had earnestly been wished for by his kind host. it was a visit memorable in many ways, and at a memorable time of the cardinal's life, the year of the first achilli trial (this took place june - ), in which mr. hope, though not one of his advocates, had rendered the most efficient help to the illustrious defendant by his counsel and support. the catholic university of ireland, as will be seen from the following letter, was also then preparing, for which its first legislator had turned to mr. hope as among the most trusted of his advisers. _j. r. hope, esq., q.c. to the very rev. dr. newman._ calverly terrace, tunbridge wells: october , ' . dear newman,--i am much grieved by the account of your health which you send. do, i entreat you, take _rest_ at once--and by rest i understand, and i suspect from dr. murray (?), total removal from work and change of scene. we hope to go to abbotsford early next month. we have a chapel in the house, but no chaplain. you would confer on us the greatest pleasure, and would at the same time secure your doctor's object, if you would come down there and spend with us the three or four months which will elapse before our return to town. you can say mass at your own hour, observe your own ways in everything, and feel all the time, i hope, perfectly at home. do, pray, seriously think of this. as to the university question which you put to me, i can give no reference here; and i suspect my view is rather historical than in the way of strict definition. in england public teaching in the schools preceded all the colleges, and the latter provided the training which the university did not undertake. in scotland and in most places abroad there are no colleges in our english sense, and public teaching is the essence of their systems. perhaps by looking into athy wood you may find passages to refer to, but i would rather rest upon the general statement of their origin. there are some derivations ascribed to the word _universitas_ as relating to universal knowledge, but i doubt them. wife and child well. yrs affly, james r. hope. i subjoin a few lines from dr. newman's answer to this invitation (which at first he was unable to accept):-- it would be a great pleasure to spend some time with you, and then i have ever had the extremest sympathy for walter scott, that it would delight me to see his place. when he was dying i was saying prayers (whatever they were worth) for him continually, thinking of keble's words, 'think on the minstrel as ye kneel.' (dr. newman to j. r. h. from edgbaston, birmingham, oct. , ' .) not less interesting is a letter in which he recalls this visit, years after. writing to mr. hope-scott on christmas eve, [compare p. ], dr. newman says:-- i am glad to call to mind and commemorate by a letter the pleasant days i passed in the north this time five years. five years has a melancholy sound to me now, for it is like a passing-bell, knolling away time. i hope it is not wrong to say that the passage of time is now sad to me as well as awful, because it brings before me how much i ought to have done, how much i have to do, and how little time i have to do it in.... i wonder whether badeley is with you? what a strange thing life is! we see each other as through the peep-holes of a show. when had i last a peep at him or you? at abbotsford one blessing was still wanting to the completion of domestic happiness. it may be assumed that, after successes so brilliant, mr. hope could not but desire to found a family which should continue, in his own line, names so famous as those which he inherited and represented; but this was long withheld. his first child, a boy, was still-born ( ); the next, after an interval of four years (october , , feast of the guardian angels), was a daughter, mary monica (now the hon. mrs. maxwell-scott), named after a favourite saint of his; and several years more elapsed before the birth of another son. a passage from one of bishop grant's letters to mr. hope will be read with interest at this point, both for the characteristic piety and for the intimacy of their friendship to which it witnesses:-- _the right rev. dr. grant, bishop of southwark, to j. r. hope, esq., q.c._ dec. , . my dear mr. hope,--... as you will have more opportunities at abbotsford than you will perhaps find in london, it may be well to tell you that the italian nurses begin almost before children know how to use their eyes, to make them notice prints or statues of our dear mother and of the saints. this helps their imagination, such as it is; and, after all, when we know how some babes notice their parents and nurses, there is every reason why we should accustom them to notice holy things. and, as they begin to talk, it is right to follow the rule which st. augustine says his mother had, of constantly letting the sacred names drop, so that the great doctor says she completely destroyed his relish for all oratory from which those sweet names were absent. may the blessings of christmas fall abundantly on all at abbotsford! yours very affectionately, thomas grant. mr. hope's domestic circle at this time included mr. lockhart, who, though not yet a very old man, was verging towards the close of a literary life of great toil. he was much with his son-in-law and daughter in scotland and in london, and they sometimes stayed with him in sussex place. at length he had his books taken down to abbotsford, where they still are, in a room called the lockhart library. when absent, he wrote almost daily either to his daughter or to mr. hope; and the collection of his letters, still preserved, affords a most amusing record, sparkling with genial sarcasm, of whatever was going on around him in london society. there is endless talk and incident, floating in that society, which never finds its way into print, or not till after the lapse of many years; and such is precisely the material of this home correspondence of mr. lockhart's. it would be perhaps difficult to name letters with which they can be accurately classed. i do not forget horace walpole, and swift's 'journal to stella.' but lockhart's wit was more playful and more natural. the great charm of his letters is, that he thought, so far, of nothing but simply to relate what was likely to amuse his daughter, whether the matter in itself was of the least consequence or not. such, however, were not the only topics of which he had to tell. mr. lockhart, who, with his somewhat haughty self-possession, might have been described, as the late lord aberdeen was, by one who knew him well, as 'possessing a heart of fire in a form of ice,' had yet a deeply felt but secret sorrow, with which even his resolution could hardly cope. if i do not disguise that for years he had much to vex him in the wild ways of a son whom he yet never ceased to love, it is only because otherwise i could convey little idea of the unreserved manner in which that lofty spirit could turn for consolation, in letter after letter, to mr. hope, or to his daughter, never failing to find all the comfort with which a wise head and a kind heart can reward a confidence so pathetic. mr. hope's conduct, all through these trials, was indeed forbearing and generous to such a degree as would make it a great example to all who have to sustain crosses of that kind. but enough, perhaps, has been said on the subject. in a severe illness of his brother-in-law at norwich afforded another of those occasions in which he displayed that zeal and helpfulness in ministering to the sick, of which there are so many instances in his life. walter lockhart scott died at versailles on january , . [footnote: walter lockhart scott and charlotte (wife of mr. hope-scott) were the last survivors of the children of mr. lockhart and sophia, daughter of sir walter scott. the eldest son, though very short-lived, is well remembered as 'hugh littlejohn,' to whom the _tales of my grandfather_ were dedicated.] mr. hope then assumed the name of hope- scott, by which i shall henceforth speak of him. it was on the occasion of her brother's death that bishop grant addressed the following beautiful letter to mrs. hope-scott:-- _the right rev. dr. grant, bishop of southwark, to mrs. hope-scott_. january [ ]. my dear mrs. hope,--although there is no artistic merit in the enclosed, i hope you will allow me to send it on account of the meditation which it suggests, how our dear lord had the thought of his sufferings present to his mind in early childhood--indeed, from the first moment of his earthly existence. this thought may help to strengthen us when we reflect that he has not given us the foretaste of our sorrow, but has allowed us to grow up without any anticipation of distinct sorrow and suffering; and, for the first years, without any thought of their coming at all. when affliction comes at last in all its real bitterness, we can lighten it by uniting it to his sorrow, and by asking him to remember his promise of making it easy to us. i should not have troubled you so soon if it had not occurred to me that the days which follow the announcement of a cause of grief are often more trying than the commencement of them, and that during them the need of consolation may be more felt. i do not know why i should intrude my poor sympathy upon you, but when we have shared in joy it seems ungrateful not to be willing to have a part in sadness, and therefore i hope you will excuse me.... yours very respectfully, thomas grant. mr. lockhart never got over the death of his last-remaining son. his health began to fail; he went to rome for change of climate; came back worse, and soon after went down to his half-brother's at milton-lockhart. thither mr. and mrs. hope-scott went to see him, and entreated him to come to abbotsford. he at first decidedly refused, and his will was a strong one; but some time after, when the house was full of catholic guests, he suddenly announced that he wished to go immediately to abbotsford. he arrived there, hardly able to get out of his carriage, and it was at once perceived that he was a dying man. he desired to drive about and take leave of various places, displaying, however, a sort of stoical fortitude, and never making a direct allusion to what was impending. to save him fatigue, it was important he should have his room near the library, but he shrank from accepting the dining-room (where sir walter scott had died), and it required all mr. hope-scott's peculiar tact and kindness to induce him to establish himself in the breakfast-room close by. there he remained until the end. yet he would not suffer any one to nurse him, till, one night, he fell down on the floor, and, after that, offered no further opposition. father lockhart, a distant cousin, was now telegraphed for, from whom, during mr. lockharts's stay in rome, he had received much kind attention, for which he was always grateful. he did not object to his kinsman's presence, though a priest; and yielded also when asked to allow his daughter to say a few prayers by his bedside. mr. hope-scott, in the meantime, was absent on business, but returned home one or two days before the end, which came suddenly. he and mrs. hope-scott were quickly called in, and found miss lockhart (affectionately called in the family 'cousin kate') reading the prayers for the dying. mr. lockhart died on november , , and was buried at dryburgh abbey, beside his father-in-law sir walter scott. the insertion of these particulars, which are of personal interest to many of my readers, will perhaps be justified by their close association with the subject of this memoir. after little more than a twelvemonth mr. hope-scott had the sorrow to lose his mother. lady hope died rather suddenly on december , , in consequence, it was thought, of injuries she had sustained from an accidental fall in the crystal palace a few days before. in writing to acquaint mr. gladstone with this sad event (december ) [footnote: lady frances hope also died within a week after, on december , .] mr. hope- scott says:-- to you and mrs. gladstone, who knew her, i may confidently say that i believe a kinder, more generous and self-denying nature has seldom existed. to us, her children, her life has been one of overflowing affection and care; but many, many besides her immediate relations have known her almost as a mother, and will feel the closing of her house as if they had lost a home. the following letter, written from india on the same occasion, is in every way deeply interesting:-- _the marquis of dalhousie to g. w. hope, esq._ gov't house: feb. , . it was very kind of you, my dear george, to think of me, far away, when your heart must have been so sore. but, indeed, your kindness was not thrown away, or your considerate thoughtfulness misplaced. even jim and yourself have not grieved with more heartfelt sorrow for that dear life that has been lost than i have in my banishment. thirty years have gone since your mother began to show to me the tenderness of an _own_ mother. i loved her dearly--she loved me, and loved what i loved. in the prospect of a return which has few charms for me the thought of finding lady hope good, kind, gracious, motherly, as she always was for me, was one of the few thoughts on which i dwelt, and to which i returned with real pleasure, and now it is all gone; and you would think it exaggerated if i said how deeply it depresses me to feel that it is so. give my love to jim, and to your sister too. i see her boy goes to madras. i had hoped to see him here, if only for a week. in three weeks i am deposed. i have no wish to see england; but nevertheless i am, dear george, yours most sincerely, dalhousie. the winter which followed mr. lockhart's death at abbotsford was a mournful one. mrs. hope-scott had been deeply attached to her father. she had shared his griefs, as we have seen. her earlier years had been somewhat lonely; her disposition, with all its reserve, was excessively sensitive and excitable, and a change of scene had doubtless begun to be felt necessary, when mr. hope-scott bought a highland estate, situated at lochshiel, on the west coast of inverness-shire, north of loch sunart, and nearly opposite skye. the history of the purchase of this property, and of all that mr. hope-scott did for it as a catholic proprietor, is very interesting and curious, but involves so much detail, that i reserve most of it for a future chapter. he built a residence there, dorlin house, a massive, comfortable mansion, practically of his own designing, abounding in long corridors, to enable the ladies and children to have exercise under shelter in the rainy highland climate, and various little contrivances showing that few things were too minute for his attention. here, as everywhere, he used a kindly and noble hospitality. much of the charm of the place consisted in its remoteness and solitude, which caused just sufficient difficulty in obtaining supplies to afford matter of amusement. the post also came in and out only three times a week, and the nearest doctor was twelve miles off. all this, however, is now considerably changed by the greater vicinity of railways. a few lines from a letter of mr. hope-scott's to dr. newman, dated 'lochshiel, strontian, n.b., september , ,' will give a better notion of its surroundings than i can offer:-- we are here on the sea-shore, with wild rocks, lakes, and rivers near us, an aboriginal catholic population, a priest in the house, and a chapel within yards. we hope badeley may turn up to-day, but are in doubt whether he will be as happy here as in paper buildings. the first necessaries of life sometimes threaten to fail us, and we have to lay in stores as if we were going on a sea voyage. at this moment we are in doubt about a cargo of flour from glasgow, and our coal-ship has been long due. what badeley will say to oat-cakes and turf fires remains to be seen. on christmas eve of the following year ( ) dr. newman writes to mr. hope-scott, in a letter i have already quoted from (p. ):-- i was rejoiced to hear so good an account of your health, and of all your party. i suppose you are full of plans about your new property and your old. your sister tells me you have got into your new wing at abbotsford. as for the faraway region of which i have not yet learned the name, i suppose you are building there either a fortress against evil times, or a new town and port for happy times. have you yet found gold on your estate? for that seems the fashion. mr. hope-scott did not indeed find gold at dorlin, but he spent a great deal over it, which he was sometimes tempted to regret; but, on the whole, thought that the outlay had been devoted to legitimate objects, and that, as an experiment, it had succeeded. he built two chapels on this property, at mingarry (our lady of the angels) and at glenuig (st. agnes); and his letters are full of unconscious proof how the interests of catholicity were always in his mind. a long wished-for event had lately thrown a bright gleam of sunshine over the house. on june , , mrs. hope-scott gave birth to a son and heir, walter michael, which was cause of rejoicing, not only to the whole scottish nation, but wherever the english language is spoken, as promise of the continuance of the name and the line of scotland's greatest literary glory. and, to complete the circle of happiness, on september of the following year, , was born also a daughter, margaret anne. three months after this had scarcely passed, when the mother and both her infants were no more. mrs. hope-scott had never really recovered from her first confinement. in the spring of she had had a severe attack of influenza, and consumptive symptoms, though not called by that name, came on. towards the end of october arrangements had been made to take her to the isle of wight for the winter, but she never got further on her journey than edinburgh. when she called, a day or two after her arrival there, on the bishop, dr. gillis, he said to himself, 'ah! _you_ have been travelling by express train!' very soon after this, bronchitis set in, and rapidly became acute, and the case was pronounced hopeless. to herself, indeed, it was perhaps more or less sudden, though she had virtually made a retreat of preparation during the preceding six months, and left everything in the most perfect order at abbotsford. she had said to 'cousin kate' (miss lockhart) that god had been very merciful to her in sending her a lingering illness; yet, on the last night, was heard to say,' hard to part--jim--mamo [footnote: mamo: an affectionate abbreviation for mary monica.]--god's will be done.' she accepted her death as god's will. on being told of its approach, and after receiving the last sacraments, she said, 'i have no fear now.' bishop gillis gave her the last absolution, fr. noble, one of the oblate fathers from galashiels, assisting. her husband's disposition never allowed him to believe in misfortune till it had really come, and, almost up to the last hour, he had failed to see what was plain to all other eyes; the parting, therefore, with him and with her little daughter mamo (who could scarcely be torn from her) was sad beyond expression. the end came rapidly. she died on tuesday, october , and on december her baby daughter, margaret anne; and on december the little boy, whose birth had caused such gladness. all three were buried in the vault of st. margaret's convent, edinburgh; the mother on november (all souls' day), her two children on december and , . bishop gillis spoke on november and december , but his addresses were unwritten; dr. grant, bishop of southwark, on december . his address, and a beautiful one indeed it is, has fortunately been preserved. of three short letters, in which mr. hope-scott had told dr. newman of each sorrow as it came, i transcribe the last:-- _j. r. hope-scott, esq., q.g. to the very rev. dr. newman._ curzon st, london, w.: dec. , . dear father newman,--my intention, for which you so kindly said mass, has been fulfilled, for it was, as well as i could form it, that god should deal with my child as would be most for his honour and its happiness, and this afternoon he has answered my prayer by calling little walter to himself. i rely upon you to pray much for me. it may yet be that other sacrifices will be required, and i may need more strength; but what i chiefly fear is that i may not profit as i ought by that wonderful union of trial and consolation which god has of late vouchsafed me. yours very affectionately, james r. hope-scott. the very rev. dr. newman. on his wife's death mr. hope-scott had written the following letter to mr. gladstone:-- _j. r. hope-scott, esq., q.g. to the right hon. w. e. gladstone, m.p._ abbotsford: nov. , . my dear gladstone,--i was uneasy at not having written to you, and hoped you would write--which you have done, and i thank you much for it. an occasion like this passed by is a loss to friendship, but it was not, nor is, easy for me to write to you. you will remember that the root of our friendship, which i trust [was] the deepest, was fed by a common interest in religion, and i cannot write to you of her whom it has pleased god to take from me without reference to that church whose doctrines and promises she had embraced with a faith which made them the objects of sense to her; whose teaching now moulded her mind and heart; whose spiritual blessings surrounded and still surround her, and which has shed upon her death a sweetness which makes me linger upon it more dearly than upon any part of our united and happy life. these things i could not pass over without ignoring the foundation of our friendship; but still i feel that to mention them has something intrusive, something which it may be painful for you to read, as though it required an answer which you had rather not give. so i will say only one thing more, and it is this: if ever, in the strife of politics and religious controversy, you are tempted to think or speak hardly of that church--if she should appear to you arrogant, or exclusive, or formal, for my dear charlotte's sake and mine check that thought, if only for an instant, and remember with what exceeding care and love she tends her children.... and now good-bye, my dear gladstone. forgive me every word which you had rather i had not said. may god long preserve to you and your wife that happiness which you now have in each other! and when it pleases him that either of you should have to mourn the other, may he be as merciful to you as he has been to me! yours affectionately, james e. hope-scott. and now mr. hope-scott was left alone in abbotsford, with his only surviving child, a very fragile and delicate flower too, such as to make a father tremble while he kissed it. we have already seen [footnote: see pp. - , and , , ch. ii, in vol. i.] that he could resort sometimes to poetry as that comfort for the over-burdened mind, in which keble's theory would place even the principal source of the poetical spirit. [footnote: keble, _praelectiones academicae_, oxon. . prael. i. t. i. p. . ] as every reader will sympathise with such expressions of feeling, i do not hesitate to transcribe some touching verses which he wrote at this season of sorrow, and which, with a few others, he had privately printed, and given in his lifetime to two or three of his very closest friends. these others will be found in the appendix. [footnote: appendix iv.] _sancta mater, istud agas, crucifixi fige plagas, cordi meo validè._ christmas, . my babes, why were you born, since in life's early morn death overtook you, and, before i could half love you, you were mine no more? walter, my own bright boy, hailed as the hope and joy of those who told thy grandsire's fame, and looking, loved thee, even for thy name; and thou, my margaret dear, come as if sent to cheer a widowed heart, ye both have fled, and, life scarce tasted, lie among the dead! then, oh! why were you born? was it to make forlorn a father who had happier been if your sweet infant smiles he ne'er had seen? was it for this you came? dare i for you to blame the god who gave and took again, as though my joy was sent but to increase my pain? oh no! of christmas bells the cheerful music tells why you were born, and why you died, and for my doubting doth me gently chide. the infant christ, who lay on mary's breast to-day, was he not born for you to die, and you to bear your saviour company? then stay not by the grave, my heart, but up, and crave leave to rejoice, and hear the song of infant jesus and his happy throng. that wondrous throng, on earth so feeble from its birth, which little thought, and little knew, now hath both god and man within its view! yes, you were born to die; then shall i grudging sigh because to you are sooner given the crown, the palm, the angel joy of heaven? rather, o lord, bestow on me the grace to bow, childlike, to thee, and since above thou keep'st my treasures, there to keep my love. it is scarcely necessary to say that one of the friends to whom mr. hope- scott sent these verses on his family losses of was dr. newman. the note in which his friend acknowledged the precious gift witnesses to the intimacy of their friendship in as striking a manner as any i have been enabled to make use of:-- _the very rev. dr. newman to j. r. hope-scott, esq., q.g._ the oratory, birmingham: october , . my dear hope-scott,--i value extremely the present you have made me; first of all for its own sake, as deepening, by the view which it gives me of yourself, the affection and the reverence which i feel towards you. and next i feel your kindness in thus letting me see your intimate thoughts; and i rejoice to know that, in spite of our being so divided one from another, as i certainly do not forget you, so you are not unmindful of me. the march of time is very solemn now--the year seems strewn with losses; and to hear from you is like hearing the voice of a friend on a field of battle. i am surprised to find you in london now. for myself, i have not quitted this place, or seen london, since last may year, when i was there for a few hours, and called on badeley. if he is in town, say to him everything kind from me when you see him. ever yours affectionately, john h. newman, of the oratory. james b. hope-scott, esq. chapter xxiv. - . mr. hope-scott's return to his profession--second marriage--lady victoria howard--mr. hope-scott at hyères--portraits of mr. hope-scott-- miscellaneous recollections--mr. hope-scott in the highlands--ways of building--story of second-sight at lochshiel. the last of the poems in the little collection which is elsewhere given, evidently belongs to a time when mr. hope-scott had regained his tranquillity, and was about to resume, like a wise and brave man, the ordinary duties of his profession. after his great affliction he had interrupted them for a whole year, first staying for some time at arundel castle, and then residing at tours with his brother-in-law and sister, lord and lady henry kerr. to those readers who expect that every life which approaches in any way an exalted and ideal type must necessarily conform to the rules of romance, it may appear strange that mr. hope-scott did not remain a widower for any great length of time. but in truth the same motives which led him to return to the bar, notwithstanding the overwhelming calamity he had sustained, might also have led him again to enter the married state; or rather, if under other circumstances he would have thought it right to do so, would not have interposed any insuperable obstacle against it now. mr. hope-scott, soon after his conversion, had become acquainted with henry granville, earl of arundel and surrey, afterwards duke of norfolk. they had first met, i believe, at tunbridge wells, where, on october , , was born mr. hope-scott's daughter mary monica (now the hon. mrs. maxwell- scott), at whose baptism lady arundel and surrey acted as proxy for the dowager lady lothian. the acquaintance had very soon developed into an intimate and confidential friendship, which by this time had become still closer, from the fear which was beginning to be felt that the duke's life, so precious to his family and to the catholic world in general, was fast drawing to its early termination. to the duke, therefore, and to his family, it was but natural for mr. hope-scott to turn for comfort in his extreme need. in such times sympathy soon deepens into affection, and thus it was that an attachment sprang up between mr. hope-scott and the duke's eldest daughter, lady victoria fitzalan howard. this was towards the end of . the duke was then in his last illness, and on november in that year the betrothed pair knelt at his bedside to receive his blessing. he died on november . although a notice of great interest might be drawn up from materials before me of lady victoria herself, and of the sweetness of character and holiness of life which so much endeared her to all with whom she was connected; yet the time of her departure is still so recent, that i shall better consult the feelings and the wishes of surviving friends by merely placing before my readers one passage from a letter relating to her. the writer was a nun intimately acquainted with her, and describes with great truth and simplicity the graces which especially adorned her: 'she was a person to be observed and studied; and i do not think... i ever saw her without studying her, and consequently without my admiration for her increasing. she was so unworldly, so forgetful of self, and, what always struck me most, so humble, and striving to screen herself from praise; and humility and self- forgetfulness like what she practised, these are the virtues of saints, and not of ordinary people.' the marriage of mr. hope-scott and lady victoria howard was solemnised at arundel on january , , and this too, it is needless to add, proved a very happy union, though on the side of affliction, in the loss of two infants, and in lady victoria's early death, it strangely resembled the first marriage. of twin daughters born june , , catherine and minna- margaret, the first lived for but a few hours. [footnote: two more daughters, josephine mary (born may ) and theresa anne (born september , ), were born before (again, as it were, but for an instant) a son was granted; this was philip james (born april , ), but who lived only till the next day. he was placed beside his sister catherine in the castle vault at arundel. mr. hope-scott's last and only surviving son is james fitzalan hope, born december , .] there are, however, many days of sunshine still to record. abbotsford and dorlin, as before, were the chief retreats in which mr. hope-scott found repose from the toil and harass of his professional life. at arundel castle and norfolk house he and his family were, of course, frequent guests. from it was thought necessary that the surviving child of his first marriage should spend every winter in a warm climate. hyères, in the south of france, was selected for this purpose, which led to mr. hope-scott's purchasing a property there, the villa madona, on a beautiful spot near the boulevard d'orient. here he spent several winters with his family, in the years - . he added to the property very gradually, bit by bit; first a vineyard, and then an oliveyard, as opportunities offered, and indulged over it the same passion for improvement which he had displayed at abbotsford and dorlin. he took the most practical interest in all the culture that makes up a provençal farm, the wine, the oil, the almonds, the figs, not forgetting the fowls and the rabbits. he laid out the ground and made a road, set a plantation of pines, and adorned the bank of his boulevard with aloes and yuccas and eucalyptus--in short, astonished his french neighbours by his perfection of taste and regardlessness of expense. he did not, however, build more than a bailiff's cottage in the first instance, but rented the villa favart in the neighbourhood, and amused himself with his estate, intending it for his daughter's residence in future years. at his death, however, the french law requiring the estate to be shared, it was found necessary to sell it. he greatly enjoyed the repose of hyères, the strolls on the boulevard, and the occasional excursions that charming watering-place affords--pierrefeu, for example, and all the beautiful belt of coast region extending between hyères and the presqu'île. he was also able to enter more into society at hyères than latterly his health and business had permitted in london. one of his oldest and most valued friends, the late serjeant bellasis, had taken the villa sainte cécile in his neighbourhood, and there was a circle of the best french families in and around hyères, whose names must not be omitted when we speak of mr. hope-scott's and lady victoria's annual sojourn in the little capital of the hesperides. among these was the late due de luynes, so well known for his researches into the hydrography of the dead sea, count poniatowski, madame duquesne, m. de butiny, maire of hyères, m. and madame de walmer, and others. cardinal newman has noticed, what appears also in the correspondence, to how surprising a degree mr. hope-scott was consulted by his french neighbours, even in affairs belonging to their own law. whenever there was a difficulty, a sort of instinct led people to turn to him for counsel. as it was at hyères that i first became acquainted with mr. hope-scott, i may introduce into this chapter, perhaps as conveniently as anywhere, such personal recollections of him as i can call to mind. they are much more scanty than i could wish; still, where the memorials to be collected from any sources are but few, and rapidly passing away, surviving friends may be glad of the preservation of even these slight notices. in - i had the honour of being entrusted with the tuition of henry, duke of norfolk, and, as the duke spent that winter with his relatives at hyères, i had several opportunities of conversing with mr. hope-scott in his domestic circle, as on other occasions afterwards. mr. hope-scott was then in his fifty-third year. he was tall, largely built, with massive head, dark hair beginning to turn grey, sanguine, embrowned complexion, very dark eyes, fine, soft, yet penetrating. '_quel bel homme! quel homme magnifique_!' the french would exclaim in talking of him. in his features might be remarked that indefinable expression which belongs to the practised advocate. he had an exceedingly winning smile, an harmonious voice, and deliberate utterance. his manners, i need hardly say, showed all that simplicity and perfection of good breeding which art may simulate, but can never completely attain to. i am not aware that there is any likeness of mr. hope-scott in his later years. there is an excellent one of him about the age of thirty-two, painted by richmond for lady davy, and now at abbotsford, of which an engraving was published by colnaghi. mr. lockhart, writing to mrs. hope- scott on august , , says: 'i called, yesterday at mr. richmond's to inspect his picture of j. r. h., and was extremely pleased--a capital likeness, and a most graceful one.... i am at a loss to say whether i think grant or he has been most lucky--and they are very different too.' i have heard that the portrait by richmond is supposed to represent his expression when pleading. mr. richmond also drew (in crayon, previously to ) two others, one for lady frances hope, subsequently given to the hon. mrs. g. w. hope, and another for mr. badeley, after whose decease it was given by mr. hope to the dowager duchess of norfolk. there was also a small life- portrait, done after his marriage by mr. frank grant, but not thought so pleasing a likeness as richmond's. there is a good bust by noble at abbotsford, but this was made after his death, by study of casts, &c. it might express the age of about thirty-five or forty. in his hospitality mr. hope-scott showed great kindness and thoughtfulness. one day, for example, he would invite to dinner the curé of hyères and his clergy; on another occasion, a young lady having become engaged, a party must be given in her honour; or an english prelate passes hyères on his way home, and must be entertained. he was very attentive to guests, took pains to make people feel at their ease, and dispensed with unnecessary formality, but not with such usages as have their motive in a courteous consideration for others. thus, when there were french guests, he was particular in exacting the observance of the rule that the english present should talk to each other, as well as to the strangers, in french. he had a thorough colloquial knowledge of the french language, marked not so much by any french mannerism, of which there was little, as by a ready command of the vocabulary of special subjects--for instance, agriculture. in society mr. hope-scott's table-talk was highly agreeable. there was, however, a certain air of languor about him, caused partly by failing health, but far more, no doubt, by that 'softened remembrance of sorrow and pain' which my readers can by this time understand better than any of those who then surrounded him. his conversation, therefore, when the duty of entertaining his guests did not require him to exert himself, was liable to lapse into silence. some people seem to think it a duty to break a dead silence at any price; but this, in mr. hope-scott's opinion, was not always to be followed as a rule of etiquette; so, at least, i have heard. i cannot remember that he showed any great interest in politics. he told me that he seldom read the leading articles of the 'times,' which he thought had little influence on public events. i can, however, recall an interesting conversation on the social state of france, of which he took a very melancholy view; and again, in , when he pronounced decisively against the chances of the permanent establishment of the commune, on the ground of the total change in the condition of europe since the middle ages--the old italian republics having been alleged in favour of the former. his conversation seldom turned upon general literature, and at the time i knew him he had given up the 'bibliomania.' his favourite line of reading, for his own amusement, seemed to be glossaries, such as those of the provençal dialect, and the archaeology of hyères, on which a friend of his, the late m. denis, had written an interesting volume. le play's elaborate treatise, 'la réforme sociale,' strongly attracted his attention. he was fond of statistical works, such as the 'annuaire du bureau des longitudes,' a little compilation bristling with facts. he greatly cherished, as might be expected, the memory of sir walter scott; and, had his life been prolonged, would probably have done more for it than the republication of the abridgment of lockhart's life. i recollect his mentioning that there were in his hands unpublished mss. of sir walter's which would furnish materials for a volume. [footnote: in a letter to lord henry kerr, dated 'norfolk house, london, s.w., july , ,' mr. hope-scott says:-- 'i have, because everybody seemed to think i must, become a purchaser to- day of some of sir walter's mss., viz. _rokeby, lord of the isles_, _anne of geierstein_, and a volume of fragments of _waverley, ivanhoe, &c._ i am ashamed to say what they cost, but the _lady of the lake_ alone cost _another_ purchaser more than half what i paid for the four, and i can hardly say that it was to please myself that i bought at all.'] 'what he chiefly valued in the character of sir walter scott (remarks a correspondent) was his _manliness_. i noticed that when sir walter was praised, mr. hope-scott always spoke of his manliness.' these observations may somewhat qualify the impression of an intimate friend of his later years, by whom i have been told that mr. hope-scott 'hardly opened a book, read scarcely at all, though he seemed to know about books.' he certainly could not, in the ordinary sense of the word, be called a literary man; but the active part of his life was far too busy for study, unless study had been a passion with him; and towards its close the state of his health made reading impossible. mr. hope-scott very rarely made mention of himself, and his conversation accordingly supplied little or no biographical incident. yet i have heard him allude, more than once, to his intimacy with mr. gladstone. 'they had been,' he said, 'like brothers;' and he spoke also with pleasure of visits to the house of sir john gladstone, from whom he thought the premier had derived much of his _back_. everything that i saw or heard of mr. hope-scott conveyed the impression that he always acted on a plan and an idea; but this is so evident from what i have already related of him, that i am unwilling to add trivial anecdotes in its illustration. that tenderness of heart of which such ample proof has also been given, i recollect once coming curiously out in a chance expression. 'if a man wants to cry,' said mr. hope-scott, '_let him read the police reports_, or (checking himself with that humour by which deep feeling is often veiled) take a cup of coffee!' he was a thoroughly kind friend in this way, that, unasked, he thought of openings which might be available, and, without offering direct advice, threw out, as if incidentally, useful hints. in giving advice, he applied his mind to the subject; and a small matter, such as the interpretation of a route in _bradshaw_, received as complete consideration, as far as was needed, as he could have given to the most difficult case submitted by a client. as to his religious habits, i only had the opportunity of remarking his regularity in attending mass. i recollect, too, that he was anxious that one in whom he took an interest should not leave hyères without visiting a favourite place of pilgrimage in the vicinity called l'ermitage, and heard with pleasure that st. paul's, in the upper town, had not been forgotten--a church where st. louis heard mass before setting out on his crusade, and which rivals the hermitage as a resort of popular devotion. i now throw together a few scattered recollections communicated to me by friends, for which i have not been able to find a place elsewhere. mr. hope-scott often talked of merton college; he used to compare his affection for it to that felt for a wife. in his professional habits of mind he was a contrast in one respect to his friend mr. john talbot. the latter (as he himself once remarked) was always anxious about a case, and a failure was a great blow to him; but mr. hope- scott, on the other hand, did the best he could, and if he failed, he failed; but he did not allow _that_ to wear him out. he always met the thing in the face, never _mourned_ over it. he never gave way to small troubles; yet he was not a calm person by nature, but by self-command. the only occasion on which i ever knew mr. hope put out (said a friend who knew him well) was when one of his fellow-counsel, whom he had endeavoured to supply with a complete answer to the whole difficulty in an important case, made a mess of it. 'how hard it is,' said mr. hope, 'to sit by and listen to a man speaking on one's side, and _always_ missing the point!' mr. hope-scott was a man _run away with by good sense_. he had great playfulness of character (by no means inconsistent with the last trait), and was especially addicted to punning. a constant fire of puns was kept up when he, bishop grant, and mr. badeley were together, though the bishop always sought a moral purpose in his jesting. after having heard mr. hope-scott's and mr. serjeant wrangham's arguments on the thames watermen and lightermen's bill ( ), the chairman of the committee said: 'mr. hope-scott, the committee have three courses--either to throw the bill out, to pass it in its entirety, or to pass it with alterations. therefore we shall be glad if counsel will retire.' after waiting for half an hour, the door opened. mr. hope-scott said to serjeant wrangham: 'come along, serjeant; now that they have disposed of their three courses, we shall have our _dessert_.' a speech of his at the galashiels mechanics' institute gave great amusement at the time: 'i am a worker like you,' he said; 'my head is the _mill_, my tongue is the _clapper_, and i _spin long yarns_.' once, after signing a good many cheques in charity matters, he said, 'they talk of hewers of wood and drawers of water; but i think i must be called _a drawer of cheques_.' he was highly genial with everybody, and even in reproving his servants would mingle it with humour. the last of sir walter scott's old servants, john swanston the forester (often mentioned in _lockhart_), seemed rather shocked when mr. hope- scott's son and heir was named michael; upon which mr. hope-scott said to him playfully: 'ye mauna forget, john, that there was an archangel before there was a wizard; and besides, the michael called the wizard was, in truth, a very good and holy divine.' with servants mr. hope-scott was very popular. he took great interest in people, taking them up, forwarding their views, advising, protecting, even interfering. he was very fond of children, and they of him. the presence of 'uncle jim' was the signal for fun with his little nephews and nieces: but the case was different with young people; they rather stood in awe of him (but another informant thinks these were the exceptions). he abhorred gossip and spreading of tittle-tattle; avoided speaking before servants, or any one who would retail what was said. when there was any danger of this, he relapsed into total silence; and was, indeed, on some occasions over-cautious. he especially avoided talking of his good deeds, or of himself generally. he was singularly reserved; not by nature, but from his long habituation to be the depositary of important secrets. sir thomas acland worked a good deal with him in puseyite days. 'tell me what my brother is about,' asked lady h. k. 'i cannot tell,' was the reply; 'he is a well too deep to get at.' he had a determined will, though affectionate and kind-hearted. when entertaining guests, he made all the plans day by day; used to lay out the day for them, seeing what could be done, though he might not himself be well enough to join the party. he was extremely systematic in his habits, paid for everything by cheques; and used to preserve even notes of invitation, cards of visitors, and the envelopes of letters. [footnote: i recollect the great importance he attached to them as dates, and his regret at the change from the old method of folded sheets.--w. e. g.] yet he had not punctuality naturally; he _drilled_ himself to it. nor was he naturally particular, but, when married, became over-particular. he had great kindness and tact, and was always kind in the right way. he was once seen, as a lad, flying to open a gate for perhaps the most disgusting person in the parish. it was a feature in his life's history to keep up intimacies for a certain number of years; the intercourse ceased, but not friendliness. 'in giving me an explanation of the mass before i was received into the church, i remember' (said a near relative of his) 'his saying that he delighted especially in the _domine, non sum dignus_. "it is to me [he remarked] the most beautiful adaptation of scripture."' in discussing religion with presbyterians, he was fond of asserting the truth, 'i, too, am a _bible christian_.' in conversation once chancing to turn on the subject of one's being able to judge of character and conduct by looking at people in the street, mr. hope-scott remarked: 'yes, if you saw a novice of the jesuits taking a walk, you would see what that means.' the following more detailed recollections appear to deserve a place by themselves:-- when residing on his highland property at lochshiel, mr. hope-scott personally acquainted himself with his smaller tenantry, and entered into all their history, going about with a keeper known by the name of 'black john,' who acted as his gaelic interpreter. his frank and kindly manners quite won their hearts. sometimes he would ask his guests to accompany him on such visits, and make them observe the peculiarities of the celtic character. on one of these occasions he and the late duke of norfolk went to visit an old peasant who was blind and bedridden. after the usual greetings, they were both considerably astonished to hear the old man exclaim, in great excitement: 'but tell me, how is schamyl getting on?' it was long after the circassian chief had been captured; but his exploits were still clinging to the old highlander's imagination, full of sympathy for warfare and politics. the natural ease and politeness of the highland manners in this class, as contrasted with the rougher type of the lowlands, used always to delight mr. hope-scott. over and over again, after the ladies had withdrawn from the dinner-table, he would send for a keeper, or a gillie, or a boatman, and ply them with plausible questions, that his guests might have the opportunity of witnessing the good breeding of the highlands. john, or ronald, or duncan, or whoever it might be, would stand a few yards away from the table, and, bonnet in hand, reply with perfect deference and self-possession, his whole behaviour free, on the one hand, from servility, and on the other, from the slightest forwardness. as will readily be supposed, the interview commonly ended with a dram from the laird's own hand. in one respect he was very strict with his people. he never would tolerate the slightest interference on their part with the rights of property. some of them were in the habit of presuming on the laird's permission, and helping themselves--no leave asked--to an oar, or a rope, or any implement which they chanced to stand in need of, belonging to the home farm. they indeed brought back these articles when done with; but mr. hope-scott ever insisted they should be _asked for_, and would not accept the excuse that the things were taken without leave in order to save him the trouble of being asked. he was very severe in repressing drunkenness and dissipation, though no one was readier to make allowance for a little extra merriment on market days and festive gatherings. mr. hope-scott's chief source of relaxation and pleasure, when he could escape from his professional duties, was building. in this amusement he followed his own ideas, sifting the plans of architects with the most rigid scrutiny, and never hesitating to alter, and sometimes to pull to pieces, what it had cost hours of hard brain-work to devise. no amount of entreaty could extort his consent to what did not commend itself as clear and faultless to his understanding. it might not be a very agreeable process to some of those concerned, but the result was generally satisfactory to the one who had a right to be the most interested. as for contractors, he latterly abjured them altogether; and dorlin house was commenced and brought to completion under the management of a clerk of the works in whom he had great confidence. in the kindred pursuit of planting (as has already been noticed) mr. hope-scott also took great interest, and the young plantations which now adorn the neighbourhood of dorlin are the result of his care. strong-minded lawyer as he was, he had a firm belief in second-sight. one case in particular, which occurred in his immediate vicinity, is remembered to have made a deep impression on his mind. the facts were these: one sunday, shortly before mr. hope-scott came to lochshiel, it happened, during service in a small country chapel close to the present site of dorlin house, that one of the congregation fainted, and had to be carried out. after the service was over, the late mr. stewart, proprietor of glenuig, asked this man what was the cause of his illness. for a long time he refused to tell, but at length, being pressed more urgently, declared that, of the four men who were sitting on the bench before him, three suddenly appeared to alter in every feature, and to be transported to other places. one seemed to float, face upwards, on the surface of the sea; another lay entangled among the long loose seaweed of the shore; and the third lay stretched on the beach, completely covered with a white sheet. this sight brought on the fainting fit. somehow the story got abroad, and the consequence was, that the fourth individual, who did not enter into the vision at all, passed, in the course of the next four months, into a state verging on helpless idiocy, from the fear that he was among the doomed. but, strange to tell, the three men who were the subjects of the warning were drowned together, a few months later on, when crossing an arm of the sea not far from the hamlet in which they dwelt. one of the bodies was found floating, as described above. another was washed ashore on a sandy part of the coast, and, on being found, was covered with a sheet supplied by a farmer's family living close to the spot. the third was discovered at low water, half buried under a mass of seaweed and shingle. the fourth, who had survived to lose his senses, as we have said, died only two years ago. chapter xxv. - . visit of queen victoria to abbotsford in --mr. hope-scott's improvements at abbotsford--mr. hope-scott's politics--toryism in early life--constitutional conservatism--mr. hope-scott as an irish and a highland proprietor--correspondence on politics with mr. gladstone, and with lord henry kerr in --speech at arundel in . towards the end of august , her majesty queen victoria, visiting the duke and duchess of roxburghe, at floors castle, was received with great rejoicings at the various scottish border towns on the waverley route from carlisle to kelso. on this occasion her majesty honoured mr. and lady victoria hope-scott by calling at abbotsford. the newspapers of the day contain copious narratives of the tour, otherwise unimportant for our present purpose. the following account is taken from the 'daily telegraph' of august , with a few additional particulars introduced from the 'border advertiser' of august , , the former journal supplying details of much interest relating to mr. hope-scott's improvements at abbotsford. i have shortened the original, and made some slight alterations in it:-- her majesty visited melrose and abbotsford on thursday, august , with princess louise, prince and princess christian, the duke and duchess of roxburghe, and the duke of buccleuch. the queen having viewed melrose abbey, mr. hope-scott and his family were honoured, later in the day, by her majesty's presence at abbotsford, which was reached shortly after six o'clock. in the fields in front of the lodge, and for a great distance along the road, was a great concourse of people, many of whom had waited for hours, and vehement cheering rang through the abbotsford woods. many alterations and additions had been made to the abbotsford of sir walter during mr. hope-scott's nineteen years' possession of the place. in the lifetime of the great magician, the ground on which he fixed his abode was nearly on a level with the highway running along the south front; and wayfarers could survey the whole domain by looking over the hedge. mr. hope-scott, twelve years ago or more ( ), threw up a high embankment on the road front of abbotsford, and it is from this steep grassy mound that one of the best views may be had. the long, regular slope, steep near the level top where laurels are planted, is a beautiful bank from end to end, being well timbered with a rich variety of trees, among others the silver birch, the oak, the elm, the beech, the plane, and the good old scotch fir; and being, moreover, naturally favourable to the wild flora of the district, especially to the bluebell and forget-me-not. the wild strawberry also is in great abundance, with its sweet, round little beads of fruit dotting the green. the square courtyard of the house is planned as a garden, with clipped yews at the corners of the ornamental plots of grass, and with beds all ablaze with summer flowers, a brilliant pink annual making a peculiarly fine appearance by well-arranged contrast with the sober greys of an edging of foliage plants. on one side of the courtyard is a postern, which was thrown open when the royal cavalcade had entered the grounds by the lodge gate. the opposite flank of the quadrangle is a kind of ornamental palisade, or open screen of gothic stonework, the spaces of which are filled up by iron railings. this palisade divides the courtyard from the pleasure-gardens, which are well laid out, and bordered with greenhouses. the porch was beautifully decorated with rows of ferns along the margin of the passage, and behind the ferns were magnificent fuchsias rising to the roof, and mingled with other choice and rare flowers. the floors of the porch and other rooms were covered with crimson cloth, but beyond that, and the addition of vases of flowers, 'sir walter's rooms' were in the same condition in which they have been witnessed by the many thousands drawn thither from every civilised country in the world. her majesty was received by mr. hope-scott, lady victoria hope-scott, and miss hope-scott, lord and lady henry kerr, miss kerr, and miss mackenzie. mr. hope-scott bowed to the queen, and led the way to the drawing-room, where a few minutes were passed. her majesty then in succession passed through sir walter's library, study, hall, and armoury, and viewed with great interest all these memorials. the royal party then proceeded to the dining-room, where fruits, ices, and other refreshments had been prepared, but her majesty partook only of a cup of tea and 'selkirk bannock.' when the queen was passing through 'sir walter's library,' some photographic views of abbotsford, which had been taken recently by mr. horsburgh of edinburgh, attracted her attention, and she graciously acceded to the request of mr. hope-scott that her majesty might be pleased to accept of a set of the photographs. her majesty expressed to mr. hope-scott the great pleasure she had experienced in visiting what had been the residence of sir walter scott. the queen and suite then entered their carriages, and left abbotsford about seven o'clock. the day was not so bright as the preceding one; but the little rain which fell, just as her majesty had got under the shelter of the historical roof, did not spoil the holiday which some thousands of people from galashiels, hawick, kelso, berwick, and edinburgh had been bent on making. mr. hope-scott, in a letter to mr. badeley of august , , gives a brief description of the queen's visit, concluding as follows:-- 'throughout her visit, her majesty was most gracious and kind, and her conduct to mamo was quite touching. she showed a great deal of interest in the place and the principal curiosities, looked remarkably well and active, and, i am told, is much pleased with the reception she has met with on the border.' the political aspects of mr. hope-scott's character, on which it is now time that we should enter, do not require any very extended discussion. his opinions and feelings were conservative in the constitutional sense, and in his early years seem to have gone a good deal further. it is perhaps scarcely fair to bring evidence from the correspondence of youths of nineteen, but mr. leader tells him (november , ): 'the latter part of your letter is an admirable specimen of tory liberality and tory argument.... what! are all radicals fools or knaves, and all conservatives honest or intelligent?... _absint hæ ineptiæ pæne aniles_.' a few years later the thun correspondence, though only affording incidental references to mr. hope's own letters, shows clearly that, like 'young oxford' of that date and long afterwards, he adopted tory views as deductions from scripture, and as the political side of religion. thus count leo thun writing to mr. hope on december , , says: 'we both agree in the first principles; i copy your own words: "everything we do is to be done in the name of the lord: admitting this, it is evident that the _principle_ on which we are to act with regard to politics is to be derived from the scriptures."' the future austrian statesman, however, declares that he cannot find in the scriptures 'that blind and passive obedience' which his friend requires, and enters at considerable length into the question, controverting the application which the latter had made of certain passages. again pass on a few years, and we find mr. hope writing to mr. badeley (it is the first letter in that collection), january , : 'i have managed to read pusey's sermon, in which there is nothing that i am disposed to quarrel with. the origin of civil government used long ago to be a favourite subject of inquiry with me; and i had long been convinced of the absurdity of any but the patriarchal scheme. aristotle, the most sensible man, perhaps, who ever lived, came to the same conclusion without the aid of revelation.' these views sustained practically some modification as time went on. toryism, in its _historical_ sense, could never be the political creed of a mind on which the church of england had lost its hold. this begins to appear in a speech made by him at an early date, without preparation indeed, but not carelessly spoken. on the occasion of the ceremony for turning the first sod for the sheffield and huddersfield railway (august , ), mr. hope said:-- if you lived under a despotic government, you would have lines made without reference to your local wants, and perhaps from visionary views of public advantage, but without reference to your private interests. it would be the same if a democratic body were to govern. in the one case you would be subject to the dictates of the imperial office; in the other, to the votes of a turbulent assemblage; but in neither case would there be that mixed regard to public justice and private interests which are combined in an efficient system. i dare say we [railway lawyers] are troublesome, but we belong to a system which has in it great elements of constitutional principle, which combines a regard for the public interest, and for private rights, with that free spirit which enterprises of this nature require in a great commercial country. [footnote: _sheffield and rotherham independent_, august , .] in the letter to mr. gladstone, of december , (quoted p. ), we perceive an uncertain, sea-sick tone, the sadness natural to a mind not yet sure of its course. very different is the buoyancy that breathes in mr. hope-scott's remarks, ten years later, on the rivalry between manchester and liverpool, in his speech on the mersey conservancy and docks bill (quoted p. ), though that, perhaps, is too rhetorical for us to found an argument upon. it will be more to the purpose here if i give an extract from a letter which he had written that same year, as an irish proprietor, on the eve of a contested election, to the agent for his estates in co. mayo, joseph j. blake, esq., at castlebar. it will show the wise and kindly spirit in which he dealt with his people, as well as the reference to the interests of catholicity which now governed his politics:-- as to the election for the county of mayo, i am in considerable ignorance about the state of parties in that particular part of ireland. i may state, however, that i should myself prefer the candidate who is the most sincere friend of the catholic church, and most disposed to take a calm and careful view of the questions which most affect the interests of the irish people-- say tenant right, for instance, in which i think something should be done, but perhaps not so much as the more noisy promoters of it insist on. i do not, however, wish to influence my tenants more decidedly than by letting them know my general feelings on these subjects. (march , .) the question here involved, which has very recently ripened into difficulties so formidable as far as regards ireland, also affected at the time, as it still affects, the state of property in the western highlands, where it seems to have interfered a good deal with mr. hope-scott's efforts to raise the condition of his tenantry. he urged on them the necessity of cultivating more of the waste land which stretched for miles before their doors, but they never took kindly to this task. no rent was to be demanded for the reclaimed lands, and they were promised compensation if called upon to give them up at any future year. they were perfectly convinced of mr. hope-scott's sincerity, but were unwilling to enter into these schemes of amelioration without the security of possession guaranteed by leases. [footnote: further details of mr. hope-scott's relations with his highland tenants will he found in chap. xxvi. see also chap. xxiv. pp. , in this vol. as affording some indirect illustration.] my office not being that of the political economist, it is unnecessary to enlarge on the subject, especially as the following important letter of mr. hope-scott himself will enable the reader to judge of the reasons upon which he acted:-- _j. r. hope-scott, esq., q.c. to the right hon. w. e. gladstone, m.p._ (_private_.) abbotsford: oct. , . dear gladstone,--as you are kind enough to care for my political ideas, i will try to describe them. born and bred a tory and a protestant, i have discarded both the creeds of my youth. but with this difference in the result: in religion i have found sure anchorage; in politics i am still adrift. had the followers of sir robert peel been able to found a permanent party, my case would probably have been different. but death took many of them, and the rest are scattered. of the two great parties now forming on the ruins of the old ones, that which you lead has a claim upon me for the work of justice [disestablishment of the irish church] which it has undertaken, and which the other seeks to frustrate. but, nevertheless, this work is to me no test of the abiding principles of the party. in you i acknowledge the promotion of it to be a sign of honesty and courage which few can better appreciate than myself; and i know that you mean it as a pledge of steady advancement in the same path. but amongst those who act with you there are many minds of a very different stamp. a few words will bring out my views. speaking logically, justice to the catholic people of ireland means, if it means anything, the undoing of the reformation, the replacing of the church of the great majority in the position from which it has been unjustly removed. but had you proposed this, or anything savouring of this, you know that your followers would have been few indeed; and that you have been able wholly to avoid such a danger for yourself, and even to turn it against your political opponents, has arisen chiefly from the moderation and wisdom of the catholic clergy. by their acquiescence in a mere disestablishment you got so far rid of the fear of popery as to give scope to the voluntary principles of ultra- protestantism, and, as a consequence, many now support you upon grounds so wholly different from your own, that, when the assault is over, and the stronghold taken, half your forces may disappear from the field, or remain only to rebel against your next movement. this, then, is the reason why, seeking for a party, i cannot accept the present action against the irish establishment as materially affecting my choice; but i must add that the church question does not, in point of statesmanship, appear to me to be either the most important or the most difficult of the irish questions. that of land tenure exercises a wider influence among the people, and calls for a higher science of government. now, upon this most difficult and most delicate subject, there are prominent men among your supporters who have put forth views which i am forced to call in the highest degree crude, if not extravagant. the law of demand and supply renders one class dependent upon another to an extent little short of slavery, not only in contracts for land in ireland, but in all questions which, in free countries, turn upon the possession by one man of what another cannot or will not do without. the scale of wages of the agricultural labourers in some counties in england, and the rates paid for the worst lodgings by the poorest classes in our large towns, are full of the same meaning as the difficulties of the irish tenant farmer. but, more than this, the irish land question itself is not exclusively irish. it is to be found also, smaller of course in extent, but identical in its main features and in some of its worst consequences, in the west highlands of scotland; and i, who am a proprietor in both countries, can hardly be expected to put much trust in the political physicians who, to cure a disease in mayo or galway, propound remedies the first principles of which they would deem inapplicable to the same disorder in argyle or inverness. that i am hopeless of any reasonable mode of relief being found, i will not say; but, if it is to be safe, it certainly cannot be speedy; and if it is to be permanent, it must depend upon a change in the habits of a race rather than upon a new distribution of landed property by parliament. and now, turning from irish to general policy, i profess that i accept your principles of finance and commerce with entire satisfaction, and with a confidence in your power of applying them which i give to no other man. i enter heartily also into your schemes for the material improvement of the labouring classes, and admire the wisdom as well as the kindness of what you have done. with regard to the franchise, i have no fear of household suffrage, and i prefer it to the more limited measure which you formerly advocated, because it brings into play a greater variety of interests; and, if it is liable to the objection that it gives votes to the ignorant and the profligate, i answer that your bill would have bestowed still greater, because more exclusive and more concentrated power, upon a class which comprises not only the lancashire operative, but the sheffield rattener. moreover, i believe that all which is worth defending in our social and political state in england and scotland, has better guarantees in the spirit of the people than in any provision of the law. when talleyrand said that england was the most aristocratic country in the world, because there was scarcely any one in it who did not look down on somebody else, he touched the keystone of our society. i have already met with amusing instances of the effect on scotch middle-class liberals of the recent enfranchisement of those below them; and my conviction is, that the more you widen the base, the more closely will you bind the superstructure together. what i fear more than democracy is the strife between capital and skilled labour. this appears to me to be among the most pressing questions of the day, and i shall think well of the statesman, whoever he may be, who, with a just but firm hand, shall regulate the relations of these forces. on education i hope we are agreed; at any rate, i feel sure that you will not intentionally divorce it from religion; but i have yet to learn what measure your party would support. there remains one subject of home policy which with me is paramount. at the time when i became a catholic the so-called papal aggression was the great topic of the day; and while the ignorance and violence of the majority, both in and out of parliament, greatly assisted my conversion, the steady reason and justice of lord aberdeen, and of those who, like yourself, acted with him, drew from me a greater feeling of respect than i have ever been sensible of on any other political occasion, or towards any other political men. i felt that they were determined honestly to carry out the principles of catholic emancipation, amidst great popular excitement, and without reference even to their personal prejudices, far less to their political interests, and i honoured them with no stinted honour. in the same direction much still remains to be done, and i wonder to myself whether you will ever head a party which will venture its political power in a contest with county magistrates and parish vestries on behalf of the catholic poor. i wonder too sometimes, but with less of hope, whether yours will be a party which will be content to forego that political propagandism which seems chiefly favoured in england when applied to the weaker countries which profess the catholic faith, and which, in those countries, seems to impair religion much more than it increases temporal prosperity; and, lastly, whether it will have enough moderation to admit that the protection of the public law of europe ought not to be denied to the states of the church, merely because a neighbouring power demands them in the name of italian unity. such, my dear gladstone, are the thoughts of a somewhat indolent, but not indifferent observer of what is going on around him. they are put before you neither to elicit opinions nor to provoke controversy, but to explain how it is that an old friend, who loves and admires you, should withhold his support, insignificant as it is, at the very moment when, as the leader of a party, you might be thought to have justly earned it. yours aff'ly, james r. hope-scott. the right hon'ble w. e. gladstone, &c. &c. &c. _the right hon. w. e. gladstone, m.p. to j. r. hope-scott, esq., q.c._ hawarden, n.w.: nov. , ' my dear hope-scott,--everything in your handwriting is pleasant to read, and i thank you sincerely for your letter. * * * * * when i come to the _gros_ of your letter touching politics, i own it appears to me that we have a moral title to your serious and even strenuous aid. i hope you will not think my writing to say so a bad compliment, for, as far as the value of the aid is concerned, even such as yours, i assure you i cannot afford to buy it at the present moment by personal appeals in writing. but you praise _justly_ the 'moderation and wisdom' of the r. c. clergy on the question of the hour--why do you not imitate them? simply because you cannot trust those who are acting with me in the _paulo post futurum_. is that a sound rule of political action? you think much, as i do, of the importance of the land question. you see a great evil--you do not see any other man with a remedy--you hold off from us who made a very moderate proposal in , because eminent men among our supporters have made proposals which you think extravagant or crude, and to which we have never given any countenance. now i will not indulge myself here by going over the many and weighty matters in which we are wholly at one; all that you say on them gives me lively satisfaction. i will only, therefore, touch the one subject on which you anticipate difficulty as possible--that of political propagandism, meaning the temporal power of the pope: for i do not suppose you mean to censure english pleas for civil rights of the united greeks in poland against the emperor of russia, though touching their religion. i have at all times contended that the pope as prince ought to have the full benefit of the public law of europe, and have often denied the right of the italian government to absorb him. but you must know that extraordinary doctrines, wholly unknown to public law, have been held and acted on for the purpose of maintaining the temporal power. if you keep to public law, we _can_ have no differences. if you do not, we may: with abp. manning i have little doubt we should. but that question is and has been for years out of view, and is very unlikely to come into it within any short period. rational cooperation in politics would be at an end if no two men might act together until they had satisfied themselves that in no possible circumstances could they be divided. q.e.d. there in brief is my case, based on yours, and i would submit it to any committee you ever spoke before, provided you were not there to bewilder them with music of the sirens. now pray think about it. i shall bother you no more. i wish i had time to write about the life of scott. i may be wrong, but i am vaguely under the impression that it has never had a really wide circulation. if so, it is the saddest pity; and i should greatly like (without any censure on its present length) to see published an abbreviation of it. with my wife's kindest regards, always aff'tely yours, w. e. gladstone. j. r. hope-scott, esq., q.c. mr. hope-scott, in replying to the above letter of mr. gladstone's (under date 'abbotsford, november , '), says:-- i fully acknowledge the compliment which you have paid me in writing at such length at such a time, and there are some things in your letter which i am glad to have had from yourself. but your main argument for action fails to convince me. i cannot put 'paulo post futurum' into my pocket, and march to the poll. for the present, then, i cannot enlist with you in politics, but i can do so heartily in any attempt to extend a knowledge of walter scott. the following letters, of the same year, will further illustrate mr. hope- scott's view of the irish disestablishment question, and the independent line of politics which he adopted in his closing years:-- _j. r. hope-scott, esq., q.c. to the lord henry kerr._ norfolk house, st. james's square: march , ' . dear henry,--[the archbishop] thinks that if gladstone is serious (which he and i both believe him to be) about the irish establishment, he will carry his motion, although it seems probable that disraeli will make it a rallying-point, and may even dissolve parliament if beat. how he is to manage the latter operation in the present condition of the reform question i hardly see.... it is astonishing to find on all sides such proof of the progress of opinion in irish, and i think generally, in catholic matters. the fenian blister has certainly worked well; but besides that, ireland and the catholic religion offer the best field for the liberals, as a party, to recover the ground which disraeli last year ousted them from. hence it is that my two months' absence from england seems to count as years on this point. indeed, gladstone's great declaration on monday last is supposed to be due to the rapid progress of a few weeks, or even days.... yours affectionately, james e. hope-scott. _the same to the same._ dorlin, strontian: sept. , ' . dear henry,--... in politics i have taken my line, and have told curie and erskine that, as at present advised, i do not intend to meddle with either roxburgh or any other election. i trust neither party enough to identify myself with either; and while i do not think that the demolition of the irish establishment is enough of a religious question to make me support the liberals, i think it sufficiently so to prevent me siding with the conservatives. on the other matters which you mention, members of both political parties seem to be at present free to follow their own consciences or interests, but their leaders may at any moment require obedience, and in that case i would rather trust the necessary tendency of the liberals than that of the conservatives on all home questions; and foreign policy seems, by accord of all parties, to have now settled into non-interference.... yrs affly, james r. hope-scott. the lord henry kerr. in a speech at arundel, january , , perhaps the last mr. hope-scott made on a public occasion, he remarked that he did not think the wisest thing had been done in remodelling the constituency by simply numbering heads. by depriving arundel of its member, a large interest had been left unrepresented--that is, the catholic interest. an intimate friend of his, possessing excellent means of information and judgment, said to me: 'hope- scott, in his latter years, was not political--not a party man in any sense. indeed, he got into a scrape with the whigs when the duke of norfolk voted with the tories. this much mortified the whigs, and they complained to hope-scott of the duke's line: he said he wished him to be of no party. this was his line as a catholic. every lawyer, in fact, is conservative. revolution is against all their theories of government.' this, however, so far as it relates to the personal influence exercised by mr. hope-scott, must be balanced by the evidence of another friend, also very intimate with him, to whom the _late_ duke of norfolk, while still traditionally a liberal, had remarked that he thought conservatives would do more for catholics, and that nothing was to be expected from the liberals. chapter xxvi. - . religious life of mr. hope-scott--motives of conversion--acceptance of the dogma of infallibility--the 'angelus' on the committee-room stairs--faith in the real presence--books of devotion--the society of jesus--letter of mr. bellasis--mr. hope-scott's manners--his generosity--courage in admonishing--habits of prayer--services to catholicity--remark of lord blachford--the catholic university of ireland--cardinal newman's dedication of his 'university sketches' to mr. hope-scott--aid in the achilli trial-- mr. badeley's speech--charitable bequests--westminster missions--repeal of titles act--statement of mr. hope-scott--letter to right hon. s. walpole-- correspondence with the duke of norfolk--scottish education bill, -- parliamentary committee on convents--services of mr. hope-scott to catholicity in legal advice to priests and convents--other charities in advice, &c.--private charities, their general character--probable amount of them--missions on the border--galashiels--abbotsford--letter of père de ravignan, s.j.--kelso--letter of father taggart--burning of the church at kelso--charge of the lord justice-clerk--article from the 'scotsman'-- missions in the western highlands--moidart--mr. hope-scott's purchase of lochshiel--'road-making'--dr. newman's 'grammar of assent'--mr. hope- scott's kindness to his highland tenants--builds school and church at mingarry--church at glenuig--sells dorlin to lord howard of glossop--other scottish missions aided by mr. hope-scott--his irish tenantry--his charities at hyères. the reader has now been enabled to form an opinion of mr. hope-scott's character and actions in various aspects. the most important of all--his religious life, his services to the church, and his charities during his catholic period--remain to be reviewed; and that interval appears the most natural for making such a survey, which comes just before the time when he was visibly approaching the end of his career. the path by which mr. hope-scott was led to catholicity has been made sufficiently apparent. we have seen that he was principally influenced by two reasons, affecting, on the one hand, church order, and on the other, dogma: the jerusalem bishopric, which was set up by anglicans and lutherans together; and the gorham judgment, which rejected an article of the creed. these reasons were, as he acknowledged, _clenched_ by his disgust at the outcry raised against the exercise of papal authority in the institution of the catholic hierarchy in england; and perhaps the greater stress ought to be laid upon this last, as it might have been the less expected, because his early ecclesiastical studies, and early contact with catholic society, were certainly not such as could have led him to views usually classed as 'ultramontane.' on this head it may be sufficient simply to state that, when the time of its promulgation arrived, he rendered, without reservation, the homage of his intellect to the exalted dogma of infallibility, which in our days has been welcomed by the whole catholic world from the voice of its chief pastor. it is, further, only necessary to refer to his political letter to mr. gladstone to see that he endeavoured to make his influence (often so much more effective than any outward agitation) available towards the recovery of the temporal power and the rights of the holy see. as to his religious habits as a catholic, every page of this memoir shows, or might show, that he was a man of great faith, great earnestness, and the most sincere intention to obey the will of god. yet it must be remembered that his duty called him into the very thick of the battle of life from morning--till night: whilst so engaged (and it was the case during half the year) it was by no means in his power either to attend daily mass or to be a frequent communicant, though, at abbotsford, he would communicate two or three times a week. but a little anecdote will serve to prove that he took care to place himself in the presence of god in the midst of the busy world in which he moved. he told his friend serjeant bellasis that he found he was just able to say the _angelus_ in the time he took to mount the stairs of the committee-rooms at westminster. at home he regularly said the _angelus_; as was noticed by persons who accidentally entered his room at the hours assigned to it, and used to find him standing to say it. the one absorbing devotion of his catholic life was undoubtedly the adoration of our blessed lord in the sacrament of the altar. few who have seen him in prayer before the tabernacle could forget his look of intense reverence and recollection, the consequence of his strong faith in the real presence. after the blessed virgin and st. joseph, st. michael was his favourite saint; his favourite books of devotion the _missal_ and the _new testament_; and, among religious orders, he was personally most attracted by the _society of jesus_, with members of which order we have already seen that he was on terms of friendship, even before his reception into the church. his admiration for the society lasted throughout his life; and for more than twenty years together, until the end, i believe that for the direction of his conscience it was to the jesuit fathers that he always had recourse. in private conversations, when expressing the great satisfaction he felt at seeing the society established in roxburghshire and the highlands, he often said that the jesuits seemed to him 'like the backbone of religion.' yet this love for the society never led to any want of hearty appreciation of the merits of other orders, or of the seculars. thus he hoped, at one time, to see the dominicans at galashiels, and showed the greatest regard for the oblate fathers of mary immaculate, who were for nine years in charge of the mission there, while, both in london, and at abbotsford and dorlin, the fathers of the oratory and the secular clergy were welcome and honoured guests. the high value he set upon the rev. p. taggart (whom he used to call 'the patriarch of the border'), and on the hard-worked highland priests, is well remembered. i am here, however, partly anticipating another branch of the subject, and shall conclude what i have to say about the personally religious aspect of his character by the following letter, from a friend who knew him well, and which contains one or two fine illustrations of it, and some very interesting general recollections also:-- _mrs. bellasis to the hon. mrs. maxwell-scott_. villa ste cécile: dec. , . my dear friend,--you ask me [for] some of those impressions which memory gives me of the kindest friend we ever possessed--your excellent father. years have rolled on, and yet the intercourse with so striking a person has left a remembrance not to be deadened by lapse of time. the noble form-- that beautiful, intellectual countenance--the kindly tone of voice, so encouraging in difficulty, so sympathetic in sorrow, so persuasive in advice--who that knew james hope-scott could ever forget? he had a peculiar way of listening, with the head a little bent on one side, to the most trivial subject broached by a friend in conversation, as if it was of the deepest importance, which pleased you with its unintentional flattery. with true christian politeness he never interrupted you, but, if the subject was an important one, he would come down with some unanswerable view which at once approved itself to the listener as the course to be followed: 'hope thinks so-and-so'--and it always proved the right thing. with regard to his generosity, it was his nature to be generous--he had learned the pleasure of giving; and, when any principle was involved in a gift, there was no stint. as an illustration of this, i remember on one occasion a friend--not rich--known to us both, had given me a picture to dispose of, as she did not care for it: it was small, and out of condition, and of an objectionable subject, though we had not perceived its closely veiled viciousness. i failed in persuading a picture dealer to purchase it, and, having to return home by my husband's chambers, i there found mr. hope-scott. i mentioned my want of success, and your father at once said, 'let us see it.' it was fetched up from the carriage, and after looking at it attentively--'well,' he said, 'mrs. bellasis, i think you must leave this with me.' i did so, and learnt afterwards that on my leaving the room he crushed the painting with his heel, put it on the fire, and sent me a cheque for my friend for _l._ his faculty for languages was very great, and when in the south of france, rambling daily over the pretty property he possessed at hyères, i used to be amazed at the fluent way in which he talked with the workmen; whether it was the carpenter, the plasterer, mason, or gardener, he talked with each in the terms of their respective occupations and trades, quite unhesitatingly. provençal talk is certainly puzzling, but he seemed as if born to it; and the french gentlemen told me he spoke exactly all the niceties of their language, whether in repartee or in illustration. how profoundly catholic he was those near and dear to him must know far better than outsiders. no consideration ever closed the purse or the lips where the interests or the honour of holy church were concerned. there was no parade of piety in him; and yet, if he thought he could say the word in season, he spoke _unreservedly_. i recollect on one occasion a very distinguished member of the parliamentary bar, who was, in common parlance, a man of the world--long gone to his rest--met my husband and your father walking together in piccadilly. mr. x. stopped them, exclaiming, 'well, you two black papists, how are you?' 'come, come,' replied mr. hope-scott, 'don't you think it is time _you_ should be looking into your accounts?' 'oh, i'm all right _now_,' was the reply, half jocularly. 'well,' said mr. hope-scott, 'but how about those _past_ pages--eh?' mr. x., taking no offence, drew himself up and said, with great gravity, 'i tell you what it is, hope: i am thoroughly, intellectually convinced; but' (he added, striking his breast) 'my heart is not touched!' and thereupon the three parted. had he been a catholic, he would have used, i suppose, the term 'will' for 'heart.' [footnote: this courage in giving religious admonition where he saw it was needed, is a trait which i have occasionally observed appearing in his correspondence, and quite in keeping with his favourite expression, _'liberavi animam meam.'_--r. o.] all that mr. hope-scott did in religious observances was done so naturally, so simply--whether it was in going down to the committees with my husband, he would pull out his rosary in the cab, and so occupy his thoughts through the busy streets; or when, in mounting the stairs at westminster to reach the committee-rooms, he would repeat, _sotto voce_, with my husband, some slight invocatory prayers, or verse of a psalm--such things were only known to the extreme intimacy of long friendship. such was the hidden, deeply pious life of one who, for many years at least, though certainly in the world, was yet not of it. i might say he was _above_ it; for who, more than our dear friend, saw through, and so thoroughly despised its shams, its allurements, its ambition, and modes of thought? there is one other remembrance which is a very bright one: i allude to his ever-ready wit. when he was in good health, and well, before he was threatened with the coming malady, how amusing he was--such a cheery companion! i have often thought, when we left his company, that i would put down his clever, witty rejoinders--they were legion! and never a spark of ill-nature. i never remember his saying an unkind word of any one. e. j. b. the services rendered by mr. hope-scott to the cause of catholicity may be grouped in three great divisions:-- . the giving advice, at no small cost of time and trouble, either on great questions affecting the interests of the church, or on those of a more local and personal description. . pecuniary charities. . the foundation of churches and missions. i will endeavour to give some idea of each of these, though of course the very nature of charity, but still more that of counsel, involves so much of secrecy, that particulars which remain on record, and can be given to the world, we may safely assume to be only specimens of many more which must remain untold. . the first division includes, as we shall see, many of the great questions affecting the catholic church in these countries during his active career as a catholic. but his services were chiefly those of a wise and trusted adviser behind the scenes, for he never entered parliament, and rarely took part in public meetings. that he thus kept at a distance from a sphere of action for which his powers so eminently fitted him, was a subject of regret even outside of catholic society, as will appear from a letter of lord blachford's to mr. e. s. hope, already cited, in which his lordship remarks:-- i have sometimes been disappointed that in joining the church of rome [mr. hope-scott] was not led by circumstances to adopt in england the task so brilliantly, but so differently performed in france by m. de montalembert-- that of asserting for english r. catholics that political and parliamentary status to which their education and importance entitle them. it would have been an advantage for all parties. and, earlier in the same letter:-- given a constituency, he united almost every qualification for public life. he seized instantly the point of a matter in hand, and was equally capable of giving it words at a moment's notice, or of working it out thoroughly and at leisure, and that either by himself or, what is as important, through others. he would have made no enemies, and multitudes of friends; and his quiet tact and flexible persuasiveness, grafted on a clear grasp of leading principles, would have made him invaluable in council. it would be useless to speculate on the motives of this abstinence, or on the part which he might have played in parliamentary life in the years when the too brief career of mr. lucas was drawing to its close, and a great opportunity seemed to offer itself for a leader to step forward who should unite, in a degree equal to his, faith and devotedness with eloquence, and a rare talent for the conduct and marshalling of affairs. however, among the transactions affecting catholic interests in which mr. hope-scott's knowledge and experience were turned to account, may be named the following:-- ( ) _the catholic university of ireland_, which has since shown such struggling yet persistent vitality, had been in contemplation as far back as . serious steps were being taken towards its foundation in , when mr. hope's advice was immediately sought by archbishop (afterwards cardinal) cullen: he said, 'get newman for your rector;' and from him the archbishop came straight to birmingham. there is a letter of archbishop cullen's to mr. hope (dated drogheda, october , ), in which, after thanking him for valuable advice regarding the university, his grace says: 'i think we shall be guided by what you have suggested. for my part, i adopt your views altogether.... if we once had dr. newman engaged as president, i would fear for nothing; and i trust that this point will soon be gained. after that, every thing else will be easy.' from a letter of mr. allies to mr. hope (august , ) it appears that dr. newman regarded it as of the highest importance for those charged with the construction of the new university to obtain information from mr. hope as to the course of studies pursued in the catholic universities abroad; and in another letter (august ) mr. allies proposes to mr. hope a long string of questions as to university legislation. what mr. hope looked upon as of the most consequence may be gathered from a postscript to that letter, marked 'private:' 'j. h. n. showed me your letter, with which he entirely agrees; and i need not say that i feel myself all the force of what you say. all paper rules and constitutions are nothing in comparison to there being a good selection of men, and a perfect unity and subordination in the governing and teaching body. if this is to succeed, my belief is that the only way is to appoint j. h. n. head, with the _fullest powers_, both for the selection of coadjutors and the working into shape.' mr. allies (with the very rev. dr. leahy, afterwards archbishop of cashel, and mr. myles o'reilly) was, at the time, engaged with dr. newman in drawing up a report on the organisation of the university, after consulting a certain number of persons, among whom was mr. hope. in mr. hope-scott presented to the new institution one of his splendid gifts--a library of books on civil and canon law. 'your books' (writes dr. newman to him, august ) 'will be the cream of our library.' in the difficulties of later years, when dr. newman felt his duty as rector of the university and that as father-superior of the oratory pulling him in different directions, the congregation, not from any one's fault, but from the nature of the case, being unable to get on without him, it was to the same faithful counsellor he turned. i may here mention that mr. hope-scott warmly took up the idea of founding an oratory at oxford (january ), and gave , _l_. towards this object, which he refused to take back when the design was laid aside. in a conversation on the subject of this memoir, which cardinal newman condescended to hold with me, his eminence said, 'hope-scott was a truly good friend--no more effectual friend--from his character and power of advice.' he had stood by him all through as a good friend and adviser in the difficulties of the oratory connected with his rectorship, and so in another critical moment relating to other affairs. i venture to transcribe the eloquent words in which the cardinal has placed on record the value he had for his friendship, in the dedication to his 'university sketches:'-- 'to james r. hope-scott, esq., q.c., &c. &c., a name ever to be had in honour when universities are mentioned, for the zeal of his early researches, and the munificence of his later deeds, this volume is inscribed, a tardy and unworthy memorial, on the part of its author, of the love and admiration of many eventful years.--dublin, october , .' ( ) the assistance rendered by mr. hope-scott to dr. newman under the anxieties of the _achilli trial_ has already been briefly alluded to (p. ). the first meeting of dr. newman's friends to hold consultation in the affair was a scene, as i have heard it described, which brought out in a striking manner mr. hope-scott's talents for ruling and advising those in perplexity. at first all was confusion, but order began to appear the moment that he entered the room; he seemed to have a just claim to take the lead, and placed everything in the right point of view. i find him writing to mr. badeley (from abbotsford, november , ), to ask whether it would be _professionally_ correct for him to appear at dr. newman's side on the day of sentence, adding: 'i need hardly say that i should much like to show him any signs of respect and affection. there are, indeed, few towards whom i feel more warmly.' this, it seems, would not have been etiquette if he had appeared in wig and gown; and mr. badeley (who was one of dr. newman's counsel) suggested his sitting with sir a. cockburn, to assist, if not to speak. however, a motion for a new trial was made, and on january , , judgment was given, discharging the rule on technical grounds, and imposing a nominal fine. there is a very interesting account of this in the badeley correspondence, part of which i am tempted to subjoin. so important an event affecting newman can scarcely be considered foreign to hope-scott, and it affords also a specimen of mr. badeley's familiar letters to his friend, which entered into the daily life i have endeavoured to describe. _edward badeley, esq., q.c. to j. r. hope-scott, esq., q.c._ temple: feb. , . my dear hope,--... newman has been here, and seems well satisfied with the result, and i think he has reason to be so. the judges paid him great respect, and though coleridge preached him an immensely long puseyite sermon, much of which he might as well have spared, full credit was given for newman's belief of the truth of his charges, and for proper motives. you will see a tolerably correct report of it in the 'times,' but the best report of _the judgment_ is in the 'morning post.' the speeches of counsel are _execrably_ given both in that and in the other papers. my speech is _very incorrect_, but i have been gratified by very kind expressions about it, particularly from my legal brethren: it was not long, but it seemed to produce some sensation, particularly as i started by avowing my friendship for newman. my conclusion, as well as i remember it, was as follows:-- 'there may be some, my lords, who seek in dr. newman's conviction a malignant triumph, and who would gladly avail themselves of the sentence of this court, to crush the man whose writings have been their dread, as his life has been their shame. the cry of party prejudice and of religious bigotry may be raised in other places, and its echo may perhaps be heard even within these walls; but your lordships, i am confident, will disregard it, and in the exercise of your sacred functions you will be guided only by the dictates of wisdom and of justice; you will respect the high character of dr. newman, his genius, his learning, his piety, his zeal, the purity of his motives, the sanctity of his life; you will remember the anxiety he has undergone, the expense which he has incurred, _the facts which he has proved_; and bearing these in mind, you cannot pass upon him any sentence of severity, you can but inflict a nominal punishment. 'vestrum est hoc, judices, vestræ dignitatis, vestræ dementias: recte hoc repetitur a vobis, ut virum optimum atque innocentissimum, plurimisque mortalibus carum atque jucundissimum, his aliquando calamitatibus liberetis, ut omnes intelligant in concionibus esse invidiæ locum, in judiciis veritati.' [footnote: cic. 'pro cluent. ' .] there was some applause when i sat down, and all seemed highly delighted with my quotation.... the small amount of the fine is regarded by the _myrmidons_ (achilli's followers) as a heavy blow to them, and all regard it as a triumph for us. one of the most satisfactory things, however, is the declaration of the court that they are not satisfied with the finding of the jury upon the facts, and that if the question as to a new trial had rested solely on that finding, they would have felt themselves bound to send the case to another jury. and so ends this important case. i think we may congratulate ourselves. newman is gone home to-day, and means to write to you tomorrow or next day. he was very tired yesterday, but seems quite alive again now, and in excellent spirits. the crowd in and about the court was immense;... newman was well attended by a numerous party of friends, and cheered as he left the court. ever believe me yours most affectionately, e. badeley. ( ) _charitable bequests_, &c.--in a letter of the very rev. dr. (since cardinal) manning to mr. hope-scott, dated 'rome, march , ,' and marked 'private and confidential,' occurs the following passage: 'i am rejoiced to hear that you have been invited to communicate with the government on the charitable bequests. and i think you will be glad to know that this fact has given, as i hear, great satisfaction to the cardinal. in conversation he has often named you to me, and i feel sure that he would have selected you on his own part for such a purpose.' i quote the following lines from a long and interesting letter of dr. manning's to mr. hope-scott, dated ' s[outh] a[udley] st., january , :' 'do you remember a conversation, the summer of , one sunday evening, at charles st., on the good which might be done by four or five men living together and preaching statedly at different places, on courses of solid subjects? the thought has long been in my mind both before and since our conversation, and it has been coming to a point under an increased sense of the need.' correspondence of this kind, which i can merely notice, would, of course, illustrate mr. hope-scott's position as a leading catholic layman of his time, in the confidence of the heads of the church. ( ) _the repeal of the ecclesiastical titles act_ is an event too familiar in recent church history to require much comment. the government in , having, in compliance with popular clamour, passed a bill by which catholic prelates were prohibited, under many penalties, from assuming territorial titles of sees, found itself, from the very first, obliged to treat this enactment as a dead letter, in consequence of the legal difficulties and complications which arose from it. common sense suggested its removal from the statute-book. this was not effected without considerable effort to escape from that necessity by some less humiliating alternative. mr. hope-scott gave evidence, lasting for two days (july and ), before the select committee appointed in to report on the operation of the ecclesiastical titles act; and to that evidence, showing all the luminous clearness and completeness which was so characteristic of him, but especially to an admirable _statement_ on the whole case which he submitted to the committee [see _infra_, p. ], there can, i think, be no doubt that the final adoption (in ) of the only satisfactory remedy--a total repeal of the act--was mainly due. a letter of the london correspondent of a dublin newspaper of the day, relating to mr. hope-scott's examination before the select committee above mentioned, contains, in the lively manner of a journalist, some particulars worth preserving:-- it used to be said of mr. hope-scott in the great days of railway committees, ere the london, chatham, and dover had made its _scandalum magnatum_, that his briefs were worth , _l_. a year; but that if he could forget some slight knowledge of the common law that he had acquired in his youth, there was no reason why they might not mount up to , _l_. the story is only worth relating as an instance of the professional lawyer's ingrained contempt for such a tribunal as a committee composed of five or more ordinary members of the house of commons. but to- day [july , ] it so happened that when mr. hope-scott for the first time in his life had to sit in a chair and be examined and cross-examined before such a committee, his common law stood him in good stead. there is something extremely impressive in the complete simplicity of this eminent lawyer's appearance. a great natural superiority of intellect, an apt and complete study of his subject, ample readiness and subtlety of statement, these you expect; but not a certain direct and cogent candour, which appears to be, and which indeed is, utterly unaffected. the success of mr. hope-scott with parliamentary committees is, i have always thought, due to the fact that he unites the qualities of a great lawyer with the qualities that make a man a great member of parliament.... his evidence was limited to the substantiation and illustration of the legal positions laid down in the document drawn up by him [see page ], and of the whole case he was evidently master to its most minute points. mr. walpole and mr. chatterton both essayed what we may call cross-examination--it cannot be said successfully.[footnote: _irish times_, july , .] the following letters on this subject appear to merit preservation; it will be seen that not all catholic politicians of the day had so clear a view of the case as mr. hope-scott:-- _j. r. hope-scott, esq., q.c. to the right hon. spencer h. walpole, m.p._ [draft copy.] norfolk house, st. james's square: _confidential._ june , ' . dear walpole,--i wrote to mr. m'evoy from arundel to request that he would make an appointment with you on the subject of the eccl. titles act, but, as i have received no reply, i presume that he is still out of town. my object, however, may be as well, perhaps better, attained if you will read the memorandum which i enclose, and in which i have endeavoured to state the case against the act, in the manner in which it _must_ be stated to the commons' committee, should the proposed inquiry take place. you will gather from the memorandum that r. catholics owe a great deal to the forbearance of the government and the judges, and i can assure you that they are far from desirous to requite such treatment by pointing out the infractions of the law by which it has been accompanied. moreover, in the event of the act not being repealed, it is evident that they would greatly endanger their present immunity by showing how easily it might be destroyed. under these circumstances, if i had to choose between acquiescence in the retention of this act, and a parliamentary inquiry of certain inconvenience and of doubtful result, i should naturally prefer the former; but the question has apparently advanced too far to be now set aside, and i therefore venture to suggest to you, and through you to the government, that the most just, and to all concerned the most convenient course, would be, that the ministry should supersede further inquiry by an avowal that the action of the public departments is impeded by the act, and should introduce a government bill to repeal it. i have marked this letter and the memorandum 'confidential' for reasons which you will understand; but i do not mean to limit the use of them in any case where you think they may assist the consideration of my suggestion. believe me, &c. &c., j. r. h.-s. the right honorable spencer h. walpole, &c. &c. &c. _his grace the duke of norfolk, e.m. to j. r. hope-scott, esq., q.c._ house of lords: july , . my dear mr. hope,--monsell, into whose hands i put the affair of the ecc. titles bill, and to whom i gave your papers on the subject, says that both o'hagan and sherlock see no objection in the bill. he says that he will try and get some one to protest against the language of the preamble, but he does not feel sure that anybody will even do that. i believe o'hagan now says that, though papal instruments are declared void, in a court of law such instruments are not called for to prove such facts as divisions of dioceses, &c. what had we better do? yours affectionately, norfolk. _j. r. hope-scott, esq., q.c. to his grace the duke of norfolk, e.m._ bedford hotel, brighton: march , ' . dear henry,--[after mentioning the enclosure of a rough draft of memorandum made in , and of the clause he had proposed to mr. gladstone (footnote: in mr. hope-scott had proposed to mr. gladstone the following _clause_ with reference to the ecclesiastical titles act:-- 'before all courts, in all questions affecting the rights or property of any religious body not established by law, or of the members of the same as such, it shall be sufficient to prove the existence 'de facto' of any ecclesiastical arrangement material to the inquiry, and no evidence shall be required of the manner in which, or of the persons by whom, such arrangement may have been originally made.') with reference to the eccl. titles bill:--] these i now send you, and, with them, a letter which you wrote to me last july showing how the matter then stood. in connection with this letter, i send you likewise a print of my statement made and circulated before the committee met in , and given in evidence by me before that committee. a reference to it will show that the view which your letter attributes to lord o'hagan is certainly not correct as regards england, though there are some circumstances in ireland which make it more applicable there. as the bill is now to go to a select committee of the commons, there seems a fair chance of getting a favourable alteration, and it is certainly well worth the attempt. as i wrote to you last summer, the _clause_ i proposed would be of the greatest practical value, and might save some amount of feeling among protestants by letting them fire away at the papal authority; but if it cannot be got, the words 'and all assumption, &c., is wholly void' should either go out, or the whole of that recital be qualified so as to mean _legal and coercive_, not merely spiritual, jurisdiction, &c. i am sorry to add to the number of your labours for the church, but at present i am not able to take the field myself; and as you are at any rate to be in london this week, you may take the opportunity of moving in the matter. yrs affly, james r. hope-scott remember j. v. harting in case of need. his grace the duke of norfolk, e.m. the whole subject has belonged to the domain of history since the repeal passed under mr. gladstone's administration in . still, i am unwilling to dismiss it without quoting the wise and powerful words with which mr. hope-scott concludes the 'statement' of , several times referred to:-- no act of parliament can cause direct hardship to the subject while the ministers of the crown, the judges, the magistrates, and the public concur in disregarding it; but it is one thing to be secure by the law, and another to be secure only by a general contempt of the law. in the latter case a gust of popular excitement, such as occurred in - , or the interest or prejudice of an individual, or the scruples of a single official, or of a single judge, might at any time turn this dormant act into a real instrument of oppression; and therefore the grievance of the roman catholics is this, and it is essentially a practical one, that, whatever their present immunity may be, they are not, and, as the law stands, they never can be, secure of its continuance. from this it follows, that in all matters to which the act may be applied, roman catholics find it necessary to take the same precautions, and resort to the same expedients, as if its application were certain. in short, they are under the constant sense that a penal statute is at the door, and that it depends upon little more than accident whether it shall come in or not: and thus, if the apprehension of evil be, as it certainly is, an evil in itself, the mere existence of the act is a practical hardship, and there can be no remedy short of its repeal. [footnote: _minutes of evidence_ (j. r hope-scott, esq., q.o.), p. .] ( ) it appears from mr. hope-scott's papers that, in may , he was giving his weight to the opposition against the _scottish education bill_, as a measure, in its original form, based on the principle of presbyterian ascendency, and was advocating a denominational system in the interests of catholicity. ( ) the parliamentary committee on _conventual and monastic institutions_ (originally designed by its mover, mr. newdegate, to inquire into the '_existence, characters, and increase_' of those institutions, but restricted, on a motion of mr. gladstone's, to inquire into '_the state of the law_' respecting them) held its sittings may to july , , and mr. hope-scott's attention seems to have been much occupied with the subject. during the earlier stages of the affair he was at hyères, but his correspondence shows how carefully he was kept informed of what passed. a letter to him from the duke of norfolk (dated norfolk house, april , ) gives an idea of the line mr. hope-scott had taken: 'i was very glad to receive your letter' (the duke writes). 'it had great weight with our committee to-day, and we decided to ask government for nothing, but to resist inquiry in any form.' ( ) to services like these, in which he was the trusted counsellor of those who were acting for catholicity in general, might be added illustrations of the many instances in which mr. hope-scott's legal knowledge and experience were applied to the business affairs of priests on the missions, or of convents, if such cases were not, from their own nature, uninteresting except to those immediately concerned, and implying also the same confidence that belongs to other privileged communications. the words of a valuable letter, from which i have more than once quoted, are here in point: [footnote: lady georgiana fullerton to lady h. k.] 'what i always admired in him was his patient charity--not so much the alms he gave, considerable as they were, but the manner in which, busy as he was, and often exhausted by his professional labours, he gave time and attention to all sorts of cases of distress and perplexity, or of importance to religion. "consult mr. hope," was the advice given to numberless persons who had no claim whatever upon him but that of needing what no one else could so well give. one of the titles of our blessed lady, "auxilium christianorum," might in one sense have been applied to him.' under this head of charity may well be included his undertaking, at the cost of time so precious to himself, the guardianships of bereaved families, of which a list has been given in a former chapter (p. ). . of mr. hope-scott's pecuniary charities in england (in the catholic part of his life) i am not able to give a special account; but i may mention one characteristic trait, that he felt it his duty to do more for westminster than other places, because it was there that he earned his money; following the excellent principle of helping, in the first instance, the locality in which almighty god has placed one. accordingly, at westminster he gave ground for catholic _poor schools_, with property endowment of _l_. per annum; and gave great assistance to the _filles de marie_, a community of religious ladies so employed in the horseferry road, in the same district. a large proportion of his private benefactions seem to have been of a description especially in keeping with his tender and thoughtful mind, such as giving a mother the means of going to visit a daughter whom she had reluctantly allowed to enter a convent; enabling sick priests to go abroad for their health; setting up a poor schoolmistress with the means of purchasing a school; paying the expenses of a funeral; and so on. like all men either wealthy or reputed to be so, he was continually importuned with petitions for pecuniary aid, sometimes asked for by way of gift, sometimes as loans. to particularise such in any recognisable manner would of course be impossible, for fear of wounding the feelings of persons who were the objects of his kindness; but, avoiding this as well as i can, i may say that there were instances in which mr. hope-scott cleared people out of overwhelming difficulties by gifts of lavish generosity--hundreds of pounds, and in some cases as much as , _l_. i could produce an example of the former in which the prompt liberality shown was only equalled by the delicacy and forbearance; for it may easily be supposed that the difficulties thus relieved were not always free from blame on the part of those involved in them. seldom, perhaps, can it be otherwise; but what would happen if all charity were measured by the deserts of the recipient? what may have been the actual amount of mr. hope-scott's charities during his life it would be very hard to conjecture; but this much i can state, on the testimony of one who knew the fact from his own personal knowledge, that in twelve or thirteen years (from or thereabouts) he gave away, in charity of some form or other, not less than , _l_. it is right to observe that, quite towards the close, as he was retiring from his profession, there was a great diminution in his charitable expenditure; for, instead of the ample, though merely professional, income he had enjoyed for a great part of his life, he had become, relatively speaking, a person with very limited means. believing it still to be his duty to provide for his 'son and heir,' and for his other children, of course he had no longer the power of doing all that he had done under circumstances altogether different. missions on the border; galashiels, kelso, &c. mr. hope-scott's zeal for the support of catholicity was naturally felt most by places near him in the highlands or on the border, where he built churches and schools, and aided struggling missions. of those on the border, the most important was the church of our lady and st. andrew at _galashiels_, which, as a manufacturing town, has a large catholic population. true to his organising genius, he intended it should be a centre for smaller out-missions around it, as _selkirk, jedburgh, kelso, &c._ it was completed gradually, and the following extract from a letter of his to father newman (dated abbotsford, december , ) shows, in a pleasing and simple manner, the heart which mr. hope-scott threw into the work he was offering to almighty god:-- i hope that ten days or so will render [the church] fit for use in a rough way; and i hope it will be so used, and that i shall not be hurried in the decorative part, which i cannot afford to do handsomely at present, and which i think will be done better when we have become used to the interior, and have observed what is to be brought out and what concealed. the shell i am well pleased with. it is massive and lofty, no side aisles, but chapels between buttresses--and no altar-screen--more like a good college chapel than a parish church. the whole plan, however, has not been carried out, so the proportions cannot be fairly judged of. some day perhaps i may finish it, or some one else instead; and to keep us in mind that more is to do, we have a rough temporary work at the west end (not really west), with square sash windows of a repulsive aspect.[footnote: there are readers who will be glad of the preservation of the following dates connected with galashiels church. the plans were completed july , ; first payment, november ; last account rendered, february ; the church was opened on candlemas day, february , , by bishop gillis; finished finally in , and opened in august .] mr. hope-scott lived to finish it, and the work, i have heard, can hardly have cost him less than , _l_. he also gave to the jesuit fathers at galashiels a library of books, chiefly on civil and canon law, in value about _l_. the last cheque he signed with his failing hand was one for _l_. in discharge of the last debt on galashiels church. the mission at galashiels was held at first by the oblate fathers, but from the end of july by the jesuits.[footnote: there is a letter of father jos. johnson, provincial s. j., to mr, hope-scott, dated february , , from which it appears that the society, in consequence of the many demands upon them, were unable to accept the mission of galashiels at that time.] the following letter (worthy of preservation also because of the writer) will show that mr. hope-scott had wished, almost immediately on finding himself a catholic, to have a jesuit father at _abbotsford_:--_the père de ravignan, s.j. to j. r. hope, esq., q.g._ voici, monsieur, ce que le t. r. p. général, m'écrit de sa maison de rome le juin: 'je désire bien que m. hope sache combien j'ai été consolé à la bonne nouvelle.--jamais je ne l'avois oublié--il m'avoit inspiré tant d'intérét!' pour ne point oublier non plus, je vous demande la permission de vous dire ici que le r. p. provincial d'angleterre a accueilli, avec le plus grand désir de vous satisfaire, la prière que vous avez bien voulu me communiquer, d'établir un de nos pères chez vous en �cosse. le p. etheridge, provincial actuel, doit arriver demain à londres. ce matin nous étions tous heureux près de cet autel. bénissons le seigneur de tant de grâces. veuillez agréer toutes mes tendres et profondes sympathies in xto jesu. x. de ravignan, s.j. londres: juin . the chapel at _selkirk_, dedicated to our lady and st. joseph, was a purchase of mr. hope-scott's. the mission of _kelso_, where he built the church of the immaculate conception, would furnish many instructive pages for a history of the re- settlement of the catholic church in those very desolate regions. a letter of the rev. patrick taggart,[footnote: compare page of this volume.] to mr. hope-scott, dated hawick, september , , contains some details which, in connection with later events at kelso, are full of interest. they show how deeply felt is the spiritual isolation of such localities, and how unexpectedly great is the number of catholics often to be found in them, left to themselves. father taggart first speaks of the great kindness which he had received from sir george and lady douglas, of springwood park, near kelso, and then goes on to say:-- lady douglas is a genuine catholic, just as a daughter of old catholic spain should be. her sister is staying with her just now.... i think they do not like the idea of attending divine service in a public hall. i told them that father cooke would be delighted to afford them any assistance in his power under present circumstances. i also told them that i thought that, if possible, a small church would be built at kelso in the meantime; and that the time was not far distant when perhaps the bishop would be able to give to kelso a resident priest. this news so delighted them that they could not find words to express their joy.... i do not know of any part of this district that is at present more destitute of the ministrations of a priest than kelso and its environs. the mission extends twenty miles north- east of kelso--that is, forty miles from galashiels and from hawick; and there is not a village in that, i might almost say, immense tract of country that does not contain its ten and twenty poor irish catholics. i attended kelso, once in the month, for nearly five years, and i am the first priest who offered up the holy sacrifice of the mass at kelso since the days of the so-called reformation. i therefore know its geography and its wants.... patrick taggart. accordingly, a church was built for kelso at the expense of mr. hope-scott. it could hardly have been finished more than a year or two, when, on the night of august - , , it was attacked by a protestant mob, set fire to, and burned to the ground, with the schoolhouse and dwelling-house adjoining, including books, vestments, and furniture, the property of mr. hope-scott. four of the ringleaders were put on their trial on november . in charging the jury, otherwise fairly enough, 'the lord justice-clerk remarked that, as to whether it were necessary that mr. hope-scott should build the roman catholic chapel at kelso or not, the jury might have very considerable doubts, as it appeared that the priest did not live there, but some miles distant at jedburgh; but that was a matter which the prisoners had nothing to do with, as every one was at liberty to build such a place of worship if he chose; neither did it matter whether the attack upon the chapel was made in consequence of any attempts to proselytise protestants to the catholic faith. in going over the evidence, his lordship said he could have wished that mrs. byrne, the schoolmistress, had given timely notice to the police of what she had heard as to the resolution to fire the chapel, as that would have been a better course than quitting the chapel. however, they could not blame the poor woman; and _perhaps, being a catholic, she might not like to make an appeal to the police_.' (quoted from the report in the 'scottish press,' november , . [footnote: i italicise the last sentence, which at first sight gives a curious idea of the practical equality of legal protection existing for catholics at the time; though probably all that was intended to be conveyed is the strange impression that catholics might entertain a scruple about appealing to the police.--r. o.]) the jury's verdict would surprise any unprejudiced reader who studies the evidence. they found the charge of wilful fire-raising not proven against the prisoners, but found three of them guilty of mobbing and rioting, but, in respect of their previous good conduct, recommended them to mercy. the three got off with eighteen months' imprisonment and hard labour. i quote the following remarks on the affair generally, and on the lord justice- clerk's charge, from an article in the 'scotsman,' republished by the 'northern times' of november , : [footnote: i have not met with any _letter_ of mr. hope-scott's to the _scotsman_, but this article is probably from his pen.--r. o.]-- in the town of kelso there is, it seems, a more or less considerable colony of irish; and it needs scarcely be said that the mixture of that element with the border material does not work together for the promotion of harmony and good order. at st. james's fair, held at kelso on th august last, a scotch butcher-boy quarrelled and fought with an irish mugger. scotch and irish rallied round these champions of the two countries, and in the mêlée which ensued, a young scotchman was unhappily and barbarously killed. the kelso crowd, in very natural rage, burned the muggers' camp, threw their carts into the tweed, and drove them from the neighbourhood of the town. but there remained the resident irish of the town, and it seems to have been deemed fitting to hold them guilty as art and part. it is not clear that any of them were in the fight--at least, no person among them was charged with the murder; but there is a short cut through all these difficulties. most irishmen are roman catholics--kelso has a roman catholic chapel--let it be burned. accordingly, after considerable talk and preparation (which seems to have included getting drunk), a mob assembled the next evening, and did burn the chapel with perfect ease and effect.... some mystery may dwell in readers' minds as to how such an affair could be arranged and completed without any one but the rioters themselves having any voice thereanent. and the mystery is not quite cleared away by the evidence. the woman that lived under the chapel heard, on the day of the fair and the fight (i.e. the day before the incendiarism), that the chapel was to be burned, and slept out of her house, so as not to be in the way; coming back the next day she heard the same rumour, and left again at night--when it happened as she had been foretold. but though other witnesses, some of whom had witnessed the burning, testified that the design had been talked about all day, the chief magistrate mentions in his evidence that he 'had not had the slightest expectation of a disturbance;' the superintendent of police was in the same state of information, and the police constable 'had not taken any alarm.' all this, however, is of little consequence, seeing that when the alarm was taken, there was no result but that of disturbing two or three people who might as well have gone to bed. the guardianship of the town is confided to one county policeman, who must be a tumultuous sort of person himself, since he seems to require a 'superintendent' to keep him in order. the said superintendent, when he did know what was going on, first tried a little moral suasion, with the result usual in such cases: 'i cautioned them against proceedings of that kind, and advised them to go to their homes--they disregarded me.' his disposable force, condensed in the person of the 'police constable,' took the same course. '_we_ warned them'--the answer was a volley of stones. 'we retired, and went to all the magistrates.' 'by the time we got back the chapel was completely destroyed.' it would be unreasonable to blame the superintendent and his 'force' for not successfully fighting several hundred men, although we do think they might have done more as to identifying the ringleaders: the real blame lies with the authorities, who appear to have failed to provide decently adequate means for preserving the public peace. the use of a local police force must be measured, not by what it detects and punishes, but by what it prevents, or may reasonably be supposed to prevent.... so wide-spread is [the feeling that roman catholic chapels are somehow an intrusion and an offence] that it would almost appear as if the very bench were not placed above its influence. the lord justice-clerk made some very sound and strong remarks on the nature of the outrage; but he added: 'whether it was necessary on the part of mr. hope-scott to build this chapel--which it scarcely seemed to be, seeing the priest did not live there, but at jedburgh--or whether it was a prudent proceeding to attempt, by the erection of this chapel, to win converts to the roman catholic faith--was of no importance here.' since it was of no importance, the expressed doubt and the implied censure had, we very humbly think, have been better avoided.... though there had not been a single roman catholic in or near jedburgh, mr. hope-scott had a perfect moral as well as legal right to spend his money in building a chapel, without either having it burned down by a mob, or himself pointed at from the bench. as a matter of fact, however, there does appear to have been a congregation as well as a chapel. the lord justice-clerk was pleased to add that the roman catholic school attached to the chapel 'could not but have been of the utmost use;' and we could thence infer that, roman catholic children having parents, there must have been use also for the chapel. the fact relied on, of the priest 'living at jedburgh,' is evidence, we should think, not of a want of hearers, but of a want of funds to pay two priests. but look where we should be landed, on this hand or on that, if others than those that choose to provide the money are to decide where church-building is 'necessary' or is 'prudent.' the extreme chapel-attendance of episcopalians in the county of roxburgh was shown by the census to be ; and for the accommodation of that number the county contains five chapels. four of them might be pronounced not 'necessary,' and all of them not 'prudent.' or, to go from the country of the rioters to that of the rioted upon. in our humble opinion, seven-eighths of the churches belonging to the establishment in ireland are utterly unnecessary, and every one of them very imprudent. such, too, is notoriously the opinion of all but a fraction of the population among whom, and out of whose funds, these churches are built and maintained. the late lamented roman catholic chapel at kelso was immeasurably less unnecessary and offensive than these; for not only had it a congregation, but was paid for only by those that used it or approved of it. of course, the lord justice-clerk did not mean that his opinion or that of any other man as to the chapel being unnecessary was any justification of the outrage--his lordship said the contrary very impressively; but his remark, though not what is called a fortunate one, is useful as indicating, in however faint and refined shape and degree, the feeling which on such topics is apt to lead us all more or less astray. missions in the western highlands: moidart. the purchase by mr. hope-scott of the estate at lochshiel, in the wilds of moidart, his 'highland paraguay,' as cardinal manning calls it, in an old letter to him (january , ), was attended, as i have already hinted (p. ), by some noteworthy circumstances. in the first place, the condition of the catholic remnant in the highlands is, perhaps, little known even to catholic readers. an interesting letter to mr. hope-scott, dated october , , from the rev. d. macdonald, in charge of the mission of fortwilliam, furnishes a statistical table, from which it appears that in , in the highlands and insular districts within the range of his knowledge, there was but one single school, where, to do justice, considering the scattered population, there ought to have been twenty-six. the people were so miserably poor, that out of thirteen missions, only one could afford their priest _l_. per annum; one, _l_.; three, _l_.; and the rest, ranging from _l_. down to as low as _l_. per annum. of course the priests could not subsist on these incomes without some other aid, and this was obtained by taking small farms, from which they endeavoured to eke out a living. 'in moidart' (i here copy from another well-informed correspondent) 'a severe crisis had just passed over the people. the cruel treatment which has depopulated the greater portion of the highlands, and converted large tracts of country into sheep-farms and deer-forests, had overtaken them. dozens of unfortunate families occupying the more fertile portions of the estate were ruthlessly torn from their homes, and shipped away to australia and america. their good old priest, the rev. ranald rankin, broken-hearted at the desolation which had come over his flock, accompanied the larger portion of these wanderers to the shores of australia. his impression at the time was, that the whole of the country, sooner or later, would share the same unhappy fate; for in bidding farewell to his bishop, the late dr. murdoch, vicar-apostolic of the western district, he assured his lordship, who felt at a loss how to supply his place, that it was a matter of little or no consequence, as the mission was practically ruined already. the bishop's reply was characteristic: "moidart has always been a catholic district; and so long as there remains one catholic family in it, for the sake of its old steadfastness, i shall not leave it unprovided."' in the meantime, mr. hope-scott, having already become a landed proprietor in ireland, in the county mayo, much wished to possess also a highland property. lochshiel was offered to him; but, after consideration, he decided against taking it. in the estate was again in the market, but mr. hope-scott had not heard of it. the owner, macdonald of lochshiel, was a catholic, and, it may be presumed, a devout one, since he had the blessed sacrament and a priest in his house. he had been obliged to sell, and the property had been bought by a brother-in-law of his, named macdonell, who added to the house. he, too, found himself obliged to sell, and this time the estate was on the point of passing into the hands of people from london who would have rooted out the catholic population from the land. hearing that it had been actually sold to protestants, two old ladies of the same family, living at portobello, went to the lawyer, and asked him, if possible, to postpone the signature of the deeds for nine or ten days, to give another purchaser a chance. he agreed to do so. they then commenced a novena that a catholic might buy it. (i ought perhaps to explain, for the benefit of some of my readers, that catholics have great faith in the efficacy of prayer persevered in for nine days when there is some important object to be gained.) the ninth day came, and mr. hope-scott purchased the property, for the sum of , _l_., without even having seen it. his attention had been drawn to it by the late mrs. colonel hutchison, of edinburgh, a lady well known among scotch catholics for her shrewd good sense and innumerable good works. he certainly was induced to purchase by the fact that lochshiel had never been out of catholic hands, and that all the population were catholic, with the personal motive, however, of providing his wife with a quiet and pleasant change of residence. 'on his arrival, the character of the people, and the wild and glorious scenery of the place, made a favourable and lasting impression on his mind; [footnote: how deeply the highland scenery impressed his imagination may be seen from the beautiful verses, 'low tide at sunset on the highland coast, which will be found in appendix iv.] but the state of the country might have appeared to him as little more advanced than under the earlier clanranald chiefs three or four centuries ago. the peasants generally were in a state of great poverty. their cottages were miserable turf cabins, black and smoky; agriculture was imperfectly understood among them, and the small patches of moorland upon which they tried to raise crops of oats and potatoes were inadequate to the maintenance of themselves and their families. there was no demand or employment of labour. there was no school upon the estate. the principal building assigned to religious worship, and which served as the central chapel for moidart, was a miserable thatched edifice, destitute of everything befitting the service of religion. the want of good roads was severely felt. it was difficult to get into "the _rough bounds_" as this part of the highlands was aptly styled by the more favoured districts, and, once in, it was more difficult still to get out. 'mr. hope-scott lost no time in trying to improve matters. it was a fundamental maxim with him that, in a neglected estate like this, no improvement was more sensible, or paid better, than the construction of good roads. these occupied his attention for several years, and gave most beneficial employment to the tenants. the cost in some instances was very great; for, in constructing the present beautiful carriage drive from sheil brude to dorlin house, hundreds of yards of solid rock had to be blasted; part of the river sheil had to be embanked; huge boulders between the cliffs and the sea-shore had to be cleared away, while a considerable line of breastwork had to be erected as a protection against the waves of the atlantic, which, in a southwest gale, beat with great fury against the coast. the other roads were carried to those parts of the estate where the tenants were principally clustered, and were a great boon. [these road-making operations in the highlands were evidently in mr. hope- scott's mind in one of his last letters to his dear friend dr. newman. the great oratorian, then busy with the 'grammar of assent,' writes to him on january , : 'my dear hope-scott,--a happy new year to you and all yours--and to bellasis and all his.... i am engaged, as bellasis knows, in cutting across the isthmus of suez; and though i have got so far as to let the water into the canal, there is an awkward rock in mid-channel near the mouth which takes a great deal of picking and blasting, and no man-of-war will be able to pass through till i get rid of it. thus i can't name a day for the opening. ever yours affectionately,--john h. newman.' mr. hope-scott's reply is--'hôtel d'orient, hyères (var), france, january , .--dear f. newman,--(after giving an account of serjeant bellasis's health, then seriously ill, and anxiously asking for masses and prayers for him,) that rocky point in your enterprise is a nuisance--more especially as rocks lie in beds, and this may be but the "crop" of some large stratum. as a road-maker, i know what it is to have to come back upon my work, and to strike a new level to get rid of some seemingly small but hard obstacle.... yours ever affectionately,--james e. hope-scott.'] 'the improvement of the tenants' own condition was a subject of anxious consideration. it was impossible to build new houses for every one; but great facilities were offered by the proprietor to such as were willing to build for themselves. wood and lime were placed at their disposal free of charge, and a sum of _l_. or _l_. was added to help in defraying the expenses of the mason-work. a few cottages of a superior kind were built at the entire expense of the proprietor; but the cost was out of all proportion with the rental of the estate, and this attempt had to be abandoned for a time. mr. hope-scott's kindness towards the smaller tenants was very marked. besides helping them to better houses, he frequently assisted them with considerable sums of money towards increasing their stock of cattle, or towards repairing losses from accidents and disease. in some cases his generosity extended to the poorer tenants on neighbouring estates, when, for instance, they felt themselves at a loss for means to purchase a new boat or to provide themselves with fishing-nets. [footnote: mr. hope-scott had formed schemes for the employment of the people in working the salmon fisheries, and, when the salmon was out of season, the deep-sea fishing, and enabling them to dispose of their fish.] to encourage a spirit of independence among them, he used to grant sums of money on _loan_; but when, at the end of a successful season, the borrowers came back with the money, he invariably refused to accept it, or he would give instructions to have it passed to some other poor person in difficulties.' his efforts to induce them to extend cultivation have been elsewhere noticed. 'he never left the country towards the end of autumn without leaving a few pounds for distribution among the poorer classes. the clergyman of the district had always strict injunctions to report any case of hardship, or illness, or distress, and to draw upon his purse for what was required. the habits of the people soon showed signs of real improvement. a more orderly or respectable class of tenants are not to be found in any other part of the highlands. from the day of his coming among them until now the rents have remained the same, greatly to the prosperity of the tenants. with the rest of the proprietors residing in and near moidart he was very popular. his relations with them were invariably pleasant and happy. 'in , mr. hope-scott commenced the erection of a school at mingarry, with ample accommodation for scholars and teacher. it was completed in . this was an improvement very acceptable to the tenants. hitherto the catholic children had to cross over to a neighbouring estate, where the society for the propagation of christian knowledge had established a school-house and teacher, or they had to frequent another school, often very irregularly, in ardnamurchan. the secular teaching in both of these schools was excellent of its kind. but, although the most cordial relations have, for generations past, existed between the catholics on the north and the presbyterians on the south side of the river sheil, it was always a subject of regret among the former that they had no means of educating their children nearer home, and under catholic teachers. after the school was successfully opened, mr. hope-scott supplied funds to defray the teacher's salary. 'in , he erected, at a cost of about , _l_., the present church and presbytery at mingarry, within a few hundred yards of the school; but, to his grief, this was the least satisfactory of all his undertakings from one cause or another, neither church nor presbytery coming up to his expectations; and the former was for years a continual source of trouble and expenditure.' he built also another, at glenuig, mentioned already. to complete the history of dorlin, so far as it is connected with mr. hope- scott: when, towards the close of his life, he had completely given up practice, he made up his mind to part with it, great as he acknowledged the wrench was--but to a catholic purchaser--and sold it to lord howard of glossop, the present proprietor, who worthily carries out the admirable example bequeathed him by his predecessor. [footnote: lord howard of glossop died as these sheets were passing through the press, december , . r. i. p.] the missions of _oban_, and, on the other side of scotland, _st. andrews_, [footnote: he had been otherwise interested in st. andrews, during the years - , when associated with sir john gladstone (father of the premier) in a scheme for developing that town as a bathing-place, building houses, &c. this, however, was a speculation on which it would he needless to enlarge, even if i had the details. in a letter to miss hope- scott (may , ) he observes, 'st. andrews is the best sea quarter in scotland, i believe (and you know i have property there, which proves it).'] must also be named as either created or largely assisted by mr. hope-scott; and, among scottish religious houses, lastly, but not least, st. margaret's convent at _edinburgh_ (the ursulines of jesus), as a cherished object of his benefactions, and kind counsel and help. mr. hope-scott's irish tenantry. of mr. hope-scott's dealings, as a catholic proprietor, with his irish estates (co. mayo), what has appeared in a former chapter gives a pleasing idea, quite borne out by other letters that have come before me. the rev. james browne, writing to him on june , , to acknowledge a donation for the chapel and school of _killavalla_, says of his tenantry there: 'they all look upon it as a blessing from god that they have got a catholic landlord, who has the same religious sympathies that they have themselves.' thirteen years later (may , ) the same priest writes: 'i have been holding stations of confession among your people at balliburke, gortbane, and killadier. i was glad to find them happy and contented, the houses neat, and the people most comfortable.' charities at hy�res. at hyères i can say from my own knowledge that mr. hope-scott's support of a chaplain is to be numbered among his charitable and fruitful deeds. the arrangement was made with all his usual thoughtfulness; it enabled a most excellent priest, who was in a slow decline, but could still hear confessions and do much good, to spend a few winters in a warm climate. the rev. edward dunne acted also as confessor to the little english colony at hyères, as well as to the family of mr. hope-scott. it often happens that, in such a watering-place, strangers whose case is hopeless come for a last chance of life. sometimes they are catholics, or needing instruction, and willing to receive it; sometimes they are in distressed circumstances. father dunne's great prudence and charity well fitted him for these ministrations, and he was equally beloved by catholics and protestants. the good which such a priest does is shared by the benefactor who places him in the position where he has the means of doing it. the following passage from a letter of father dunne's to mr. hope-scott (may , ), which must have been one of his last, will interest the reader as an example:-- you will be glad to know that my being at hyères was a great blessing to a poor young man who died there towards the end of april. he had been at sea, and was for years without receiving the sacraments. his poor mother, a very pious woman, was in the greatest anxiety about him. he could not speak french, and it would have been impossible for him to make his confession if i, or some other english-speaking priest, was not there. i mention this, as i know it will be a consolation to you to know that your charity and benevolence were, under god, the means of saving a poor soul, and will secure for you the prayers of a bereaved mother, and three holy nuns, aunts of the poor young man. chapter xxvii. - . mr. hope-scott's speech on termination of guardianship to the duke of norfolk--failure in mr. hope-scott's health--exhaustion after a day's pleading--his neglect of exercise--death of mr. badeley--letter of dr. newman--last correspondence of mr. hope and the bishop of salisbury (hamilton)--dr. newman's friendship for mr. hope-scott and serjeant bellasis--mr. hope-scott proposes to retire--birth of james fitzalan hope-- death of lady victoria hope-scott--mr. hope-scott retires from his profession--edits abridgment of lockhart, which he dedicates to mr. gladstone--dr. newman on sir walter scott--visit of dr. newman to abbotsford in --mr. hope-scott's last illness--his faith and resignation--his death--benediction of the holy father--requiem mass for mr. hope-scott at the jesuit church, farm street--funeral ceremonies at st. margaret's, edinburgh--cardinal newman and mr, gladstone on mr. hope-scott. mr. hope-scott's duties as trustee and guardian of the duke of norfolk had lasted altogether eight years, when they terminated of course on the duke's attaining his majority, on december , . the speech made by mr. hope- scott, at the banquet given by the duke in the baron's hall at arundel castle, to the mayor and corporation of arundel, on the following day, was a striking and beautiful one. i copy a few lines of it from the summary given in the 'tablet' of january , :-- mr. hope-scott paid a well-merited tribute to the virtues of the duchess when he said that if they observed in the duke earnestness and yet gentleness, strict justice and yet most liberal and charitable feelings, neglect of himself and attention to the wants of all around him, let them remember that his mother brought him up. the guardianship being now over, the ward must go forward on the battle-field of life, depending not upon his rank or property, but upon his own prudence, his own courage, but above all, his fidelity to god. it was true that his path was strewn with the broken weapons and defaced armour of many who had gone forth amidst acclamations as loud and promises as bright, but the groundworks of hope in his case were the nobility of his father's character, the prayers of his mother, the strong domestic affections which belong to pure and single- minded youths, great powers of observation, great vigour of will, and the daily and habitual influence under which he knew that he lived, of well- reasoned and well-regulated religion. the celebrations at arundel were, i believe, the last occasion, unconnected with his profession, at which mr. hope-scott ever spoke in public. he had already, for some years, showed signs of failing health. it used to be supposed, as has been previously mentioned, from the facility of his manner in pleading, that he got through his work with little trouble. people little knew what commonly happened when he reached home, after the day's pleading was over. such was his state of lassitude, that he would drop, like a load, upon the first chair he found, and instantly fall into a profound sleep: sometimes he was half carried, thus unconscious, to bed, or sometimes placed at table, and made to swallow a little food. even when the prostration was not so overpowering, the chances were that he would fall fast asleep, at dinner or at dessert, in the middle of a sentence. all this resembles very closely what thiers related of himself to mr. senior. the french statesman, after a day of parliamentary battle, had often to be carried to his bed by his servants, as motionless and helpless as a corpse. this strange torpor, after extreme intellectual exertion, seems to have been observed in mr. hope-scott from a very early stage in his career, during the great railway excitement of . it was probably connected with the shock given to his constitution, in his infancy, by the fever at florence. there was always a kind of struggle going on in his system. unfortunately, throughout his professional life he never took proper exercise. it was, however, in vain to advise him on this point. he said he could not _both_ work hard and take exercise also, or would playfully insist that he had sufficient exercise in pleading. 'why don't you go out?' asked a friend. 'don't you think,' replied mr. hope-scott, 'that the work in committee gives a man sufficient exercise? cicero considered making a speech was exercise.' this great mistake was the more to be wondered at in mr. hope-scott, as he had had the advantage of an early initiation into field sports. he never, indeed, seems to have liked riding. he used to say he had _once_ been out on a steeplechase at arundel, and sometimes he went out shooting there, but these were exceptional occasions. his chief active amusements, gardening and architecture, were insufficient to compensate the depression caused by the tremendous strain of half the year at westminster. in the year he was exceedingly unwell, and the failure in his health became very appreciable, his physician telling him that he had 'the heart of an overworked brain.' within two years after this, the violence of his grief at mrs. hope-scott's death further disordered him. he had an illness in , and again a serious one in , which, however, he got over, and went on as usual, but became more unwieldy, and suffered much from impeded circulation. it happened also, soon after this, that the breaking up of some very dear associations, or sure signs of it, began to give warning that the end of all things was at hand. on march , , rather suddenly, died mr. badeley, the most affectionate and faithful friend of so many years. on hearing of his illness mr. hope-scott had hastened home from hyères to assist him, and was with him each day till the last. dr. newman wrote the following letter on this occasion:-- _the very rev. dr. newman to j. r. hope-scott, esq., q.c._ rednall: march , . my dear hope-scott,--what a heavy, sudden, unexpected blow! i shall not see him now till i cross the stream which he has crossed. how dense is our ignorance of the future! a darkness which can be felt, and the keenest consequence and token of the fall. till we remind ourselves of what we are--in a state of punishment--such surprises make us impatient, and almost angry, alas! but my blow is nothing to yours, though you had the great consolation of sitting by his side and being with him to the last. what a fulness of affection he poured out on you and yours! and how he must have rejoiced to have your faithful presence with him while he was going! this is your joy and your pain. now he has the recompense for that steady, well-ordered, perpetual course of devotion and obedience which i ever admired in him, and felt to be so much above anything that i could reach. all or most of us have said mass for him, i am sure, this morning; certainly we two have who are here. i did not write to you during the past fortnight, thinking it would only bother you, and knowing i should hear if there was anything to tell. but you have been as much surprised as any one at his sudden summons. i knew it was the beginning of the end, but thought it was only the beginning. how was it his medical men did not know better? i suppose the funeral is on saturday. god bless and keep and sustain you. ever yours most affectionately, john h. newman. the year had not yet come round when the last correspondence passed between mr. hope-scott and another dear friend, dr. hamilton, bishop of salisbury, his brother-fellow at merton so many years before. _j. r. hope-scott, esq., q.c. to the eight rev. dr. hamilton (bishop of salisbury)_. hyères: march , . my dear friend,--i have watched the papers with anxiety, and learnt all i could from home about your health, but have been unwilling to trouble you with a letter. however, manning has just been here, and we naturally spoke with our old affection of you, and joined in hopes for your welfare; and i thought you might like to know that two of your oldest friends have been so engaged. hence these few lines. may god keep you! yours ever affectionately, james e. hope-scott. _the right rev. dr. hamilton (bishop of salisbury) to j. r. hope-scott, esq., q.c._ grosvenor street: march , . my dearly loved friend,--i have received your note, _non sine multis lachrymis_, and though i am too weak to write or answer myself, i must dictate a few words of thankfulness to it. few trials of my life i have felt with such keenness as my separation from two such friends, from whom i have learnt so much, and whom i have loved and love so dearly as manning and yourself. perhaps this feeling for you both has helped to prevent my doing that which it has been my daily aim not to do, namely, to hinder either by word or deed that object which i venture to say is as dear to me as to you--the reunion of christendom. may god forgive me anything which has led me to lose sight of this in all my ministrations! nothing, however, would tend more to forward this than a just and charitable estimate of the claims of the church of england on the part of the authorities of your communion. i have dictated these few words, and my chaplain, liddon, has written them exactly as i have dictated them, and i beg you to receive them as a legacy of affection and deep respect from your old brother-fellow. w. k. sarum. _j. r. hope-scott, esq., q. c. to the rev. canon liddon_. villa favart, hyères: march , . my dear sir,--accept my grateful thanks for the letter which you added to that of my very dear friend the bishop. to him i do not write, for it is plain that he should make no exertion that can be avoided; but i trust to your kindness to assure him that i was indeed deeply moved--more than i can well say--both by his love for me and by his sufferings, and that my prayers, and those of others far more worthy than myself, are offered to god for him. yours very truly, james r. hope-scott. and another twelvemonth had not been completed before mr. hope-scott's attached friend and familiar neighbour of many years (both in london and at hyères), serjeant bellasis, was visibly nearing his departure. [footnote: he lingered till january , .] the following letters witness, in a most touching manner, to their mutual affection, and to that of dr. newman for them both:-- _the very rev, dr. newman to j. r. hope-scott, esq., q.c._ the oratory: march , ' . my dear hope-scott,--after writing a conversational letter to bellasis yesterday, i heard at night so sad an account, which i had not anticipated, of his pain and his weakness and want of sleep, that i not only was distressed that it had gone, and felt that it would harass him to receive a second letter so soon, and, as he would anticipate, as unseasonable as the former. therefore i enclose with this a few lines to him, which you can let him have when you think right. i do not undervalue the seriousness of your first letter about him, and have had him constantly in my mind; but i did not contemplate his pain, or his sudden decline. i thought it would be a long business, but now i find that the complaint is making its way. what a severe blow it must be to you! but to me, in my own way, it is very great too, though in a different way; for, though i am not in his constant society as you are, he has long been _pars magna_ of this place, and he has, by his various acts of friendship through a succession of years, created for himself a presence in my thoughts, so that the thought of being without him carries with it the sense of a void, to which it is difficult to assign a limit. three æquales i shall have lost--badeley, h. bowden, and bellasis; and such losses seem to say that i have no business here myself. it is the penalty of living to lose the great props of life. what a melancholy prospect for his poor boys! when you have an opportunity, say everything kind from me to mrs. bellasis. i shall, i trust, say two masses a week for him. he is on our prayer lists. what a vanity is life! how it crumbles under one's touch! i hope you are getting strong, and that this does not weigh too heavily on you.... ever yours affectionately, john h. newman. _j. r. hope-scott, esq., q.c. to the very rev. dr. newman_. hotel d'orient, hyères, var, france: march , ' . dear f. newman,--i received yours yesterday evening, but withhold the enclosure for bellasis, as i think it might do him harm. [after giving a somewhat better account of his friend's health:] masses and prayers i am sure he has many, and i know how grateful he is for your deep interest in him.... should he be able to get out, i hope for more progress: but, with slight exceptions, he has now been confined to the house for weeks. however, his patience helps his greatly, and when, as lately he has often been, free from pain, his cheerfulness revives, and with it his interest in the works he has undertaken, and the subjects which have long interested him. i am sure that the dedication of your new work [the 'grammar of assent'] to him affects him, as that of your poems did badeley, in a very soothing way. few have such extensive means of testifying to their friendships as you have. yours affectionately, james e. hope-scott. repeated griefs of this kind would not be without their effect on mr. hope- scott's own already failing health. by the physicians pronounced that there was functional, though not organic, disease of the heart, the valve losing its power to close. he spoke of this himself to a near relative at the time, adding that he had immediately asked whether he might expect the end to come suddenly; but had been told that in all probability it would not, and that he would have warning of its approach. he now began to talk of retiring, and did take the first step, by giving up a certain number of causes. but he said to a professional friend: 'i own i dread giving up; it is almost like the excitement of racing, and the reaction would be so strong, life so flat, when such an interest is lost, and the stimulus over.' before this happened, meeting another friend in the street, who had wisely retreated in time, mr. hope-scott asked him how he got on? 'oh, very well; i fall back on my old classics--don't you do the same?' 'oh no,' replied mr. hope-scott; 'when i go to the country, i find it indispensable to allow my mind to lie entirely fallow. i live in the open air, go on planting, and do no mental work whatever.' this was the state of things when he had suddenly to meet a new sorrow, and the last. a son, indeed (james fitzalan), was born to him on december , , thus replacing the long wished-for blessing which had been given and withdrawn; but lady victoria's health had for years been enfeebled, a fever came on, and, after lingering for a time between life and death, she expired at norfolk house on december , aged only thirty, leaving three little girls, besides the newly born babe. it happened on this occasion, as so often in mr. hope-scott's life, that he had persuaded himself that things would be as he wished they should. he never believed that lady victoria was dying, though she was in her agony, and had been senseless for ten days; nay, he could hardly be made to think it, even at the last moment; and this time he never recovered the shock. the morning after the funeral [footnote: lady victoria hope-scott was laid beside her father and her two infant children in the vault at arundel castle.] he said that he considered he had had a warning that night--the disease had made a stride. he had never contemplated surviving his wife, and had made all arrangements on the supposition that he was to die before her. on the very night that followed he altered his will. he sent for his confidential clerk, destroyed quantities of papers, and, in short, evidently considered himself a dying man. he now definitively retired from his profession, and, though he survived for more than two years, what remains to be told is little more than the story of a last illness. the years and , indeed, passed tranquilly enough, as if there was a lull and a silence after the storm. mr. hope-scott resided chiefly at abbotsford, and devoted part of his leisure in the first year to preparing an edition (the centenary) of the abridgment of lockhart's 'life of scott.' [footnote: _the life of sir walter scott, earl., abridged from the larger work_, by j. c. lockhart, with a prefatory letter by james r. hope- scott, esq., q.c. edinburgh: adam & charles black, .] he also thought that it was time for the larger 'life' to be revised, and the extracts from letters to be compared with the originals, &c., and actually began the task after the republication of the abridgment, but, i believe, very soon gave it up. he dedicated the abridgment to mr. gladstone, whose letter in reply to his proposal to do so is subjoined:-- _the right hon. w. e. gladstone, m.p. to j. r. hope-scott, esq., q.c._ carlton house terrace, s.w. march , ' . my dear hope-scott,--...i learn with pleasure that you now find yourself able to make the effort necessary for applying yourself to what i trust you will find a healthful and genial employment. you offer me a double temptation, to which i yield with but too much readiness. i am glad of anything which associates my name with yours; and i feel it a great honour to be marked out in the public view by your selection of me as a loyal admirer of scott, towards whom, both as writer and as man, i cannot help entertaining feelings, perhaps (though this is saying much) even bordering upon excess. honesty binds me to wish you would do better for your purpose, but if you do not think any other plan desirable, i accept your proposal with thanks. believe me affectionately yours, w. e. gladstone. j. r. hope-scott, esq., q.c. from the letter of dedication, which i should have been glad, if space had permitted, to give as a whole, i subjoin the opening and closing paragraphs, with notices (inclusive of some critical remarks) of the deeply interesting pages which intervene:-- _j. r. hope-scott, esq., q.c. to the right hon. w. e. gladstone, m.p._ arundel castle: april , . my dear gladstone,--although our friendship has endured for many years, and has survived great changes, it is not on account of my affection for you that i have desired to connect these pages with your name. it is because from you, more than from any one else who is now alive, i have received assurances of that strong and deep admiration of walter scott, both as an author and as a man, which i have long felt myself, and which i heartily agree with you in wishing to extend and perpetuate. on my part, such a desire might on other grounds be natural; on yours it can only spring from the conviction, which i know you to entertain, that both the writings and the personal history of that extraordinary man, while affording entertainment of the purest kind, and supplying stores of information which can nowhere else be so pleasantly acquired, have in them a great deal which no student of human nature ought to neglect, and much also which those who engage in the struggle of life with high purposes--men who are prepared to work earnestly and endure nobly--cannot pass without loss. [after quoting passages from mr. gladstone's letters to himself, showing the hold which walter scott had over his friend's mind, mr. hope-scott states his reasons for abandoning his original idea of having a new life written, and for preferring to publish an abridgment of it, and the abridgment by lockhart himself:--] a work of art in writing is subject to the same rules as one in painting or in architecture. those who seek to represent it in a reduced form must, above all things, study its proportions, and make their reduction equal over all its parts. but, in the case of written compositions, there are no mechanical appliances as there are in painting and architecture, for varying the scale; and there is, moreover, a greater difficulty in catching the leading principle of the design, and thus establishing the starting- point for the process which is to follow. hence, an abridgment by the author himself must necessarily be the best--indeed, the only true abridgment of what he has intended in his larger work; and i deem it very fortunate that cadell's influence overcame lockhart's repugnance to the task.... there is [however] an abiding reason why scott's personal history should not be too freely generalised, and an abstract notion be substituted for the real man.... in scott, if in any man, what was remarkable was the sustained and continuous power of his character. it is to be traced in the smallest things as well as in the greatest; in his daily habits as much as in his public actions; in his fancies and follies as well as in his best and wisest doings. everywhere we find the same power of imagination, and the same energy of will; and, though it has been said that no man is a hero to his _valet-de-chambre_, i am satisfied that scott's most familiar attendants never doubted his greatness, or looked upon him with less respect than those who judged him as he stood forth amidst the homage of the world. in dealing with such a character, it is hardly necessary to say that the omission of details becomes, after a certain point, a serious injury to the truth of the whole portrait; and if any man should object that this volume is not short enough, i should be tempted to answer, that if he reads by foot-rule, he had better not think of studying, in any shape, the life of walter scott. [in what follows, mr. hope-scott speaks of 'the depth and tenderness of feeling which lockhart, in daily life, so often hid under an almost fierce reserve,' and regards it as matter of thankfulness that he was spared the suffering he would have felt in the death of his only daughter, 'whose singular likeness to her mother must have continually recalled to him both the features and the character of her of whom he wrote' those touching words in the original life which mr. hope-scott quotes, with evident application to his own bereavement, to which he makes a short and sad reference. he concludes:--] and now, my dear gladstone, _vive valeque_. you have already earned a noble place in the history of your country, and though there is one great subject on which we differ, i am able heartily to desire that your future career may be as distinguished as your past. but since it is only too certain that the highest honours of statesmanship can neither be won nor held without exertions which are full of danger to those who make them, i will add the further wish, that you may long retain, as safeguards to your health, your happiness, and your usefulness, that fresh and versatile spirit, and that strong sense of the true and beautiful, which have caused you to be addressed on this occasion by your affectionate friend, james r. hope-scott. the right hon. w. e. gladstone. dr. newman's letter, on receiving from mr. hope-scott a copy of the abridgment, is full of interest:-- _the very rev. dr. newman to j. r. hope-scott., esq., q.c._ the oratory: may , . my dear hope-scott,--thank you for your book. in one sense i deserve it; i have ever had such a devotion, i may call it, to walter scott. as a boy, in the early summer mornings i read 'waverley' and 'guy mannering' in bed, when they first came out, before it was time to get up; and long before that, i think, when i was eight years old, i listened eagerly to the 'lay of the last minstrel,' which my mother and aunt were reading aloud. when he was dying i was continually thinking of him, with keble's words--'if ever floating from faint earthly lyre,' &c. (sixth after trin.). [footnote: compare a letter of dr. newman's to j. r. hope in . see _ante_, p. .] it has been a trouble to me that his works seemed to be so forgotten now. our boys know very little about them. i think f. ambrose had to give a prize for getting up 'kenilworth.' your letter to gladstone sadly confirms it. i wonder whether there will ever be a crisis and correction of the evil? it arises from the facilities of publication. every season bears its own crop of books, and every fresh season ousts the foregoing. books are all annuals; and, to revive scott, you must annihilate the existing generation of writers, which is legion. if it so fares with scott, still more does it so fare with johnson, addison, pope, and shakespeare. perhaps the competitive examinations may come to the aid. you should get gladstone to bring about a list of classics, and force them upon candidates. i do not see any other way of mending matters. i wish i heard a better account of you. ever yours affectionately, john h. newman. during all this time mr. hope-scott's health continued steadily to fail; yet he suffered rather from malaise than from any acute symptoms. now and then there were gleams in which he seemed better for a space, but they were but as the flickerings of the flame in the socket. in march bournemouth was tried. in the summer of that year he was in scotland, and in july had the great happiness of receiving a visit of about a fortnight from dr. newman at abbotsford, which revived the memories of twenty years-- for so long was the interval since his former visit. this, i suppose, was the last occasion of mr. hope-scott's entertaining guests. he was able to move about quietly; old times were gently talked over, and there was nothing to show that the great separation was very imminent. it was even possible, the doctors had told him when the disease was first apparent, to linger under it for twenty years. thus the last days at abbotsford looked as if lit up by the setting sun. he fell off, however, a day or two after dr. newman left; went first to luffness, and in october, whilst staying in edinburgh, the heart affection becoming worse, he seemed, for a time, in immediate danger; yet rallied, and removed to london by easy stages, halting first at newcastle and then at peterborough. owing to the thoughtful kindness of mr. h. hope, of luffness, he was accompanied by dr. howden, the family physician at luffness. it was, however, a most anxious journey, and it often seemed doubtful whether he would reach his destination alive. soon after his arrival in london he had a dangerous attack, and received the last sacraments, with the holy father's blessing. this was at no. hyde park place, a house which he had taken conjointly with his widowed sister-in-law, the hon. mrs. g. w. hope; and here, under her affectionate care, and that of his daughter, mary monica, mr. hope- scott spent the few months that remained to him. miss hope-scott (now the hon. mrs. maxwell scott), during those months, kept a diary, commencing march , , of all that passed, which she has kindly placed in my hands. at first the entries were usually of 'a good night,' and 'tired,' or 'very tired,' during the day, though he is occasionally able to go into the library, to talk a little with his infant children in their turns, and to see near relatives from time to time. soon the nights get less good, the days more languid, and he is seldom able to leave his room. for about a fortnight (april - ) there seemed a slight improvement, but this did not last, and on april there was a great change for the worse. sir w. jenner, sir w. gull, and mr. sims held a consultation, and pronounced very unfavourably. father clare, s. j., brought the blessed sacrament, and spent the night in the house. the following morning, tuesday, april , he heard his confession, and gave him holy communion. it was the morning on which he usually received. the two physicians hesitated about extreme unction being administered, for fear of causing excitement. but, on the priest's asking him what he wished, the reply at once was, 'dear father, give me all you can, and all the helps which holy church can bestow.' during the administration of the sacrament he answered all the prayers himself; and the physicians, on leaving the room, said there had not been the least excitement. i take these particulars from a letter of father clare's to the hon. mrs. maxwell scott, in which he also says: 'during the whole of his illness i never knew him to show the slightest impatience, i never heard one murmur; but in all our conversation there was _invariably_ a cheerful resignation to the holy will of our good god. his lively faith and wonderful fervour in receiving holy communion, which was at least twice a week, i have never seen surpassed.' the duke of norfolk was telegraphed for from arundel. he arrived about p.m. mr. hope-scott was able to see him, spoke of the blessing which his church would bring on him (the splendid church of st. philip's, arundel, just completed by the duke), and promised to pray for him the next day, when it was to be opened. sir william gull now left hardly any hope. the ceremony of the opening of the church was deferred, and all the arundel party arrived that night. the following is the last paragraph in the diary:-- 'in the afternoon, dear papa, after taking something, said out loud his favourite prayer, "_fiat, laudetur_." [footnote: this prayer is as follows: _fiat, laudetur, atque in æternum superexultetur, justissima, altissima, et amabilissima voluntas dei in omnibus. amen._] then, looking at me, he said, "god's will be done," and asked me to say some prayers. i said the _angelus_, in which he joined, and the "offering." father clare comes about five, and goes out, to return about seven, meaning to spend the night again. a little before seven i was in the library with aunt lucy and uncle henry. aunt car. suddenly called me, and we all went in. i gave dearest papa the crucifix to kiss, and uncle henry read the prayers. edward [footnote: the persons mentioned by their christian names in this paragraph of the diary are--lady henry kerr, lord henry kerr, the hon. mrs. g. w. hope, and her son, mr. edward stanley hope, nephew to mr. hope-scott, and now ( ) one of the charity commissioners for england and wales.] was there too, mr. dunn, &c. 'he died very peacefully and calmly, about seven.' to this is only to be added that there was conveyed to mr. hope-scott on his death-bed the special blessing of his holiness pope pius ix. shortly after death, the body having been laid out, according to catholic custom, with lights round the bed and flowers upon it, a sudden change was observed to have come over the face of the deceased, which assumed a totally different expression. all signs of sickness or pain seemed to vanish, and in one minute he had become like what he used to be in very early years. readers who may perhaps have witnessed a change of the kind, which is not unfrequent, will understand the striking remark made by a friend on this occasion: 'it is sometimes given to the dead to reveal their blessedness to the living.' the following particulars of the requiem mass for mr. hope-scott, and of the funeral, are taken, with alterations and omissions, from newspapers of the day (the 'tablet' of may ; 'scotsman,' may and ; and 'edinburgh courant,' may , ). the requiem mass for the repose of the soul of the late mr. hope-scott, q.c., took place at the church of the immaculate conception, farm street, on monday, may , at eleven o'clock. the coffin was removed, on the previous evening, from hyde park place, and laid on a splendid catafalque in the church. the mass was celebrated by the very rev. fr. whitty, provincial of the jesuits, _coram archiepiscopo_; and the sermon was preached by the very rev. father (now his eminence cardinal) newman (by whose kind permission it is placed in the appendix to this volume). cherubini's second requiem in d minor, for male voices only, was used. weak with old age and sorrow, father newman had almost to be led to the pulpit, but the simple vigour of language and the lucidity of style so peculiarly his own remained what they had ever been. when, towards the conclusion of his discourse, he came to speak of the last hours of the deceased, father newman almost broke down, and for a moment it seemed that his feelings would prevent him from finishing. the solemnity of the occasion--the church draped in black, the old man come so far purposely to pay the last offices to his friend--produced such an impression on those who witnessed it as they are not likely to forget. among the clergy and laity present were--mgr. weld, the hon. and rev. dr. talbot, revs. e. g. macmullen, c. b. garside, father fitzsimon, s. j., father clare, and the fathers, s. j., of mount street; father coleridge, s. j., father amherst, s. j., father christie, s. j., father dalgairns, of the oratory, the duke of norfolk, the duke and duchess of buccleuch, the marquis and marchioness of lothian, cecil, marchioness dowager of lothian, the marchioness of bute, lord and lady howard of glossop, lord henry kerr, mr. hope of luffness, mr. edward s. hope, mr. herbert hope, field-marshal sir william gomm and lady gomm, lord edmund howard, the earl of denbigh, lady herbert of lea, lady georgiana fullerton, mr. allies, mr. langdale, &c. the dowager duchess of norfolk and the ladies howard, mr. hope-scott's daughters, the hon. mrs. george w. hope and misses hope, and lady henry kerr, occupied a separate tribune. on wednesday, may , the remains of mr. hope-scott, q.c., were interred in the vaults of st. margaret's convent, bruntsfield, edinburgh. the coffin had been conveyed from london on tuesday, and was placed on a catafalque within the choir of the chapel, where several sisters of the community (ursulines of jesus) watched until the morning. the catafalque was draped in black, surrounded by massive silver candlesticks hung with crape, and lit up with numerous wax candles. the altar, sanctuary, organ, and choir gallery were hung with black cloth. the east aisle of the chapel was occupied by the relatives and friends of the deceased; the west aisle by the young ladies of the convent school, about fifty in number, dressed in white, and with white veils, and the household servants from abbotsford; whilst at the south were persons who had received special invitations. in the stalls of the choir were the clergy, and the sisters of the convent in their accustomed places. the ceremonies commenced at eleven o'clock, when a procession, consisting of the cross-bearer and acolytes, the clergy in attendance, and the right rev. dr. strain, bishop of abila, v.a. of the eastern district of scotland, entered the chapel at the great south door, and marched slowly up the centre of the choir to the sanctuary, the organ sounding whilst the bell was heard tolling in the distance. the bishop was attended by the rev. george rigg, st. mary's, and the rev. mr. clapperton. the rev. w. turner acted as master of the ceremonies; the rev. father foxwell, s. j., said the mass, which, by the express desire of the deceased, was a low mass, although accompanied by music (father foxwell, stationed at galashiels, frequently said mass at abbotsford). during the mass, among other exquisite music sung by the choir, was the _dies irae_. the rev. w. j. amherst, s. j., norwich, a great personal friend of mr. hope-scott's, preached the sermon (which, by his kind permission, is placed in the appendix to this volume). bishop strain then read the burial service in front of the bier, and concluded by giving the absolution. the procession was then formed, and during the singing of the _dies irae_ emerged from the church, and walked to the vault, in the following order:--cross-bearer and acolytes, the young ladies of the convent school, the _religieuses_ of the community of st. margaret's, the clergy and bishop, then the coffin, borne shoulder-high, and attended by the pall-bearers, the duke of norfolk, lord henry kerr, mr. h. w. hope of luffness, and dr. lockhart of milton lockhart. the ladies who followed the coffin were miss hope-scott, the hon. mrs. g. w. hope, lady henry kerr, and mrs. francis kerr. then followed the relatives and friends, servants, and tenant-farmers of abbotsford. the procession marched slowly from the quadrangle in front of the chapel northwards to the entrance to the vaults, the sisters of the community chanting the psalm _miserere_. it opened up at the mortuary door, and the coffin was borne into the vault, and placed in the recess assigned to it beside the coffin of his first wife, and under those of his two children. a short service here took place, the _benedictus_ was sung, and the funeral service terminated. the outer coffin, which was of richly polished oak, bound with brass ornaments, had a beautiful crucifix on the lid, and beneath, a shield, bearing the following inscription:-- 'james egbert hope-scott, third son of general sir alexander hope, of luffness and rankeillour. born july , . died april , . may he rest in peace.' i have now placed before the reader the materials from which he will be enabled in some measure to judge what mr. hope-scott was, and how he appeared to those around him. but to all beauty of character there belongs a lustre, outside of and beyond it, which genius alone can portray. this task has fortunately been performed by two of his most intimate friends, of whose genius it is needless to say a word--cardinal newman and mr. gladstone--by whose kind permission their respective papers on his life will be appended to this volume. with reference to certain expressions on religious subjects in mr. gladstone's letter, it will be remembered that it here appears as a biographical and historical document, and therefore without omissions--a remark which i feel assured that the illustrious writer will not misinterpret, and that both will accept the gratitude and admiration due from all surviving friends of mr. hope-scott, for the splendid tribute which each of them has given to a memory so dear. appendix i. _funeral sermon by his eminence cardinal newman, preached at the requiem mass for mr. hope-scott, at the church of the immaculate conception, farm street, may_ , . i have been asked by those whose wish at such a moment is a command, to say a few words on the subject of the sorrowful, the joyful solemnity which has this morning brought us together. a few words are all that is necessary, all that is possible; just so many as are sufficient to unite the separate thoughts, the separate memories, the separate stirrings of affection, which are awakened in us by the presence in our midst of what remains on earth of the dear friend, of the great soul, whom we have lost,--sufficient to open a communication and create a sympathy between mind and mind, and to be a sort of testimony of one to another in behalf of feelings which each of us has in common with all. yet how am i the fit person even for as much as this? i can do no more than touch upon some of those many points which the thought of him suggests to me; and, whatever i may know of him and say of him, how can this be taken as the measure of one whose mind had so many aspects, and who must, in consequence, have made such distinct impressions, and exercised such various claims, on the hearts of those who came near him? it is plain, without my saying it, that there are those who knew him far better than i could know him. how can i be the interpreter of their knowledge or their feelings? how can i hope by any words of mine to do a service to those who knew so well the depths of his rare excellence by a continuous daily intercourse with him, and by the recurring special opportunities given to them of its manifestation? i only know what he was to me. i only know what his loss is to me. i only know that he is one of those whose departure hence has made the heavens dark to me. but i have never lived with him, or travelled with him; i have seen him from time to time; i have visited him; i have corresponded with him; i have had mutual confidences with him. our lines of duty have lain in very different directions. i have known him as a friend knows friend in the tumult and the hurry of life. i have known him well enough to know how much more there was to know in him; and to look forward, alas! in vain, to a time when, in the evening and towards the close of life, i might know him more. i have known him enough to love him very much, and to sorrow very much that here i shall not see him again. but then i reflect, if i, who did not know him as he might be known, suffer as i do, what must be their suffering who knew him so well? . i knew him first, i suppose, in or , thirty-five or six years ago, a few years after he had become fellow of merton college. he expressed a wish to know me. how our friendship grew i cannot tell; i must soon have been intimate with him, from the recollection i have of letters which passed between us; and by i had recourse to him, as a sort of natural adviser, when i was in difficulty. from that time i ever had recourse to him, when i needed advice, down to his last illness. on my first intimacy with him he had not reached the age of thirty. i was many years older; yet he had that about him, even when a young man, which invited and inspired confidence. it was difficult to resist his very presence. true, indeed, i can fancy those who saw him but once and at a distance, surprised and perplexed by that lofty fastidiousness and keen wit which were natural to him; but such a misapprehension of him would vanish forthwith when they drew near to him, and had actual trial of him; especially, as i have said, when they had to consult him, and had experience of the simplicity, seriousness, and (i can use no other word) the sweetness of his manner, as he threw himself at once into their ideas and feelings, listened patiently to them, and spoke out the clear judgment which he formed of the matters which they had put before him. this is the first and the broad view i am led to take of him. he was, emphatically, a friend in need. and this same considerateness and sympathy with which he met those who asked the benefit of his opinion in matters of importance was, i believe, his characteristic in many other ways in his intercourse with those towards whom he stood in various relations. he was always prompt, clear, decided, and disinterested. he entered into their pursuits, though dissimilar to his own; he took an interest in their objects; he adapted himself to their dispositions and tastes; he brought a strong and calm good sense to bear upon their present or their future; he aided and furthered them in their doings by his co-operation. thus he drew men around him; and when some grave question or undertaking was in agitation, and there was, as is wont, a gathering of those interested in it, then, on his making his appearance among them, all present were seen to give to him the foremost place, as if he had a claim to it by right; and he, on his part, was seen gracefully, and without effort, to accept what was conceded to him, and to take up the subject under consideration; throwing light upon it, and, as it were, locating it, pointing out what was of primary importance in it, what was to be aimed at, and what steps were to be taken in it. i am told that, in like manner, when residing on his property in france, he was there too made a centre for advice and direction on the part of his neighbours, who leant upon him and trusted him in their own concerns, as if he had been one of themselves. it was his unselfishness, as well as his practical good sense, which won upon them. such a man, when, young and ardent, with his advantages of birth and position, he entered upon the public world, as it displays itself upon its noblest and most splendid stage at westminster, might be expected to act a great part, and to rise to eminence in the profession which he had chosen. not for certain; for the refinement of mind, which was one of his most observable traits, is in some cases fatal to a man's success in public life. there are those who cannot mix freely with their fellows, especially not with those who are below their own level in mental cultivation. they are too sensitive for a struggle with rivals, and shrink from the chances which it involves. or they have a shyness, or reserve, or pride, or self- consciousness, which restrains them from lavishing their powers on a mixed company, and is a hindrance to their doing their best if they try. thus their public exhibition falls short of their private promise. now, if there was a man who was the light and the delight of his own intimates, it was he of whom i am speaking; and he loved as tenderly as he was beloved, so that he seemed made for domestic life. again, there are various departments in his profession, in which the particular talents which i have been assigning to him might have had full play, and have led to authority and influence, without any need or any opportunity for those more brilliant endowments by which popular admiration and high distinction are attained. it was by the display of talents of an order distinct from clearness of mind, acuteness, and judgment, that he was carried forward at once, as an advocate, to that general recognition of his powers, which was the response that greeted his first great speech, delivered in a serious cause before an august assembly. i think i am right in saying that it was in behalf of the anglican chapters, threatened by the reforming spirit of the day, that he then addressed the house of lords; and the occasion called for the exercise, not only of the talents which i have already dwelt upon, but for those which are more directly oratorical. and these were not wanting. i never heard him speak; but i believe he had, in addition to that readiness and fluency of language, or eloquence, without which oratory cannot be, those higher gifts which give to oratory its power and its persuasiveness. i can well understand, from what i knew of him in private, what these were in his instance. his mien, his manner, the expression of his countenance, his youthfulness--i do not mean his youth merely, but his youthfulness of mind, which he never lost to the last,--his joyous energy, his reasonings so masterly, yet so prompt, his tact in disposing of them for his purpose, the light he threw upon obscure, and the interest with which he invested dull subjects, his humour, his ready resource of mind in emergencies; gifts such as these, so rare, yet so popular, were necessary for his success, and he had them at command. on that occasion of his handselling them to which i have referred, it was the common talk of oxford, how the most distinguished lawyer of the day, a literary man and a critic, on hearing the speech in question, pronounced his prompt verdict upon him in the words, 'that young man's fortune is made.' and, indeed, it was plain, to those who were in a position to forecast the future, that there was no prize, as it is called, of public life, to which that young man might not have aspired, if only he had had the will. . this, then, is what occurs to me to say in the first place, concerning the dear friend of whom we are now taking leave. such as i have described were the prospects which opened upon him on his start in life. but now, secondly, by way of contrast, what came of them? he might, as time went on, almost have put out his hand and taken what he would of the honours and rewards of the world. whether in parliament, or in the law, or in the branches of the executive, he had a right to consider no station, no power, absolutely beyond his reach. his contemporaries and friends, who fill, or have filled, the highest offices in the state, are, in the splendour of their several careers, the illustration of his capabilities and his promise. but, strange as it may appear at first sight, his indifference to the prizes of life was as marked as his qualifications for carrying them off. he was singularly void of ambition. to succeed in life is almost a universal passion. if it does not often show itself in the high form of ambition, this is because few men have an encouragement in themselves or in their circumstances to indulge in dreams of greatness. but that a young man of bold, large, enterprising mind, of popular talents, of conscious power, with initial successes, with great opportunities, one who carried with him the good-will and expectation of bystanders, and was cheered on by them to a great future, that he should be dead to his own manifest interests, that he should be unequal to the occasion, that he should be so false to his destiny, that his ethical nature should be so little in keeping with his gifts of mind, may easily be represented, not only as strange, but as a positive defect, or even a fault. why are talents given at all, it may be asked, but for use? what are great gifts but the correlatives of great work? we are not born for ourselves, but for our kind, for our neighbours, for our country: it is but selfishness, indolence, a perverse fastidiousness, an unmanliness, and no virtue or praise, to bury our talent in a napkin, and to return it to the almighty giver just as we received it. this is what may be said, and it is scarcely more than a truism to say it; for, undoubtedly, who will deny it? certainly we owe very much to those who devote themselves to public life, whether in the direct service of the state or in the prosecution of great national or social undertakings. they live laborious days, of which we individually reap the benefit; nevertheless, admitting this fully, surely there are other ways of being useful to our generation still. it must be recollected, that in public life a man of elevated mind does not make his own self tell upon others simply and entirely. he is obliged to move in a groove. he must act with other men; he cannot select his objects, or pursue them by means unadulterated by the methods and practices of minds less elevated than his own. he can only do what he feels to be second-best. he proceeds on the condition of compromise; and he labours at a venture, prosecuting measures so large or so complicated that their ultimate issue is uncertain. nor of course can i omit here the religious aspect of this question. as christians, we cannot forget how scripture speaks of the world, and all that appertains to it. human society, indeed, is an ordinance of god, to which he gives his sanction and his authority; but from the first an enemy has been busy in its depravation. hence it is that, while in its substance it is divine, in its circumstances, tendencies, and results it has much of evil. never do men come together in considerable numbers, but the passion, self-will, pride, and unbelief, which may be more or less dormant in them one and one, bursts into a flame, and becomes a constituent of their union. even when faith exists in the whole people, even when religious men combine for religious purposes, still, when they form into a body, they evidence in no long time the innate debility of human nature, and in their spirit and conduct, in their avowals and proceedings, they are in grave contrast to christian simplicity and straightforwardness. this is what the sacred writers mean by 'the world,' and why they warn us against it; and their description of it applies in its degree to all collections and parties of men, high and low, national and professional, lay and ecclesiastical. it would be hard, then, if men of great talent and of special opportunities were bound to devote themselves to an ambitious life, whether they would or not, at the hazard of being accused of loving their own ease, when their reluctance to do so may possibly arise from a refinement and unworldliness of moral character. surely they may prefer more direct ways of serving god and man; they may aim at doing good of a nature more distinctly religious, at works, safely and surely and beyond all mistake meritorious; at offices of kindness, benevolence, and considerateness, personal and particular; at labours of love and self-denying exertions, in which their right hand knows nothing that is done by their left. as to our dear friend, i have already spoken of the influence which he exercised on all around him, on friends or strangers with whom he was connected in any way. here was a large field for his active goodness, on which he did not neglect to exert himself. he gave others without grudging his thoughts, time, and trouble. he was their support and stay. when wealth came to him, he was free in his use of it. he was one of those rare men who do not merely give a tithe of their increase to their god; he was a fount of generosity ever flowing; it poured out on every side; in religious offerings, in presents, in donations, in works upon his estates, in care of his people, in almsdeeds. i have been told of his extraordinary care of families left in distress, of his aid in educating them and putting them out in the world, of his acts of kindness to poor converts, to single women, and to sick priests; and i can well understand the solicitous and persevering tenderness with which he followed up such benevolences towards them from what i have seen in him myself. he had a very retentive memory for their troubles and their needs. it was his largeness of mind which made him thus open-hearted. as all his plans were on a large scale, so were his private charities. and when an object was public and required the support of many, then he led the way by a munificent contribution himself. he built one church on his property at lochshiel; and another at galashiels, which he had intended to be the centre of a group of smaller ones round about; and he succeeded in actually planting one of these at selkirk. nor did he confine himself to money gifts: it is often more difficult to surrender what we have made our own personally, than what has never come actually into our tangible possession. he bought books freely, theological, historical, and of general literature; but his love of giving was greater than his love of collecting. he could not keep them; he gave them away again; he may be said to have given away whole libraries. little means has any one of determining the limits of his generosity. i have heard of his giving or offering for great objects sums so surprising, that i am afraid to name them. he alone knows the full measure of his bounties, who inspired, and will reward it. i do not think he knew it himself. i am led to think he did not keep a strict account of what he gave away. certainly i know one case in which he had given to a friend many hundreds, and yet seemed to have forgotten it, and was obliged to ask him when it was that he had done so. i should trust that, in what i am saying, i have not given any one the impression that he was inconsiderate and indiscriminate in giving. to have done this would have been to contradict my experience of him and my intention. as far as my opportunities of observing him extended, large as were his bounties and charities, as remarkable was the conscientious care with which he inquired into the nature and circumstances of the cases for which his aid was solicited. he felt he was but the steward of him who had given him what he gave away. he gave away as the steward of one to whom he must give account. there are at this time many philanthropic and benevolent men who think of man only, not of god, in their acts of liberality. i have already said enough to show that he was not one of these. i have implied the presence in him of that sense of religion, or religiousness, which was in fact his intimate and true life. and, indeed, liberality such as his, so incessant and minute, so well ordered, and directed too towards religious objects, almost of itself evidences its supernatural origin. but i insist on it, not only for its own sake, but also because it has a bearing upon that absence of ambition which, in a man so energetic, so influential, is a very remarkable point of character. viewed in itself, it might be, even though not an epicurean selfishness, still a natural temper, the temper of a magnanimous mind, such as might be found in ancient greece or rome, as well as in modern times. but, in truth, in him it was much more than a gift of nature; it was a fruit and token of that religious sensitiveness which had been bestowed on him from above. if it really was the fact that his mind and heart were fixed upon divine objects, this at once accounts for what was so strange, so paradoxical in him in the world's judgment, his distaste for the honours and the pageants of earth; and fixed, assuredly they were, upon the invisible and eternal. it was a lesson to all who witnessed it, in contrast with the appearance of the outward man, so keen and self-possessed amid the heat and dust of the world, to see his real inner secret self from time to time gleam forth from beneath the working-day dress in which his secular occupations enveloped him. i cannot do justice by my words to the impression which in this respect he made on me. he had a tender conscience, but i mean something more than that--i mean the emotion of a heart always alive and awake at the thought of god. when a religious question came up suddenly in conversation, he had no longer the manner and the voice of a man of the world. there was a simplicity, earnestness, gravity in his look and in his words, which one could not forget. it seemed to me to speak of a loving desire to please god, a single-minded preference for his service over every service of man, a resolve to approach him by the ways which he had appointed. it was no taking for granted that to follow one's own best opinion was all one with obeying his will; no easy persuasion that a vague, obscure sincerity in our conclusions about him and our worship of him was all that was required of us, whether those conclusions belonged to this school of doctrine or that. that is, he had deep within him that gift which st. paul and st. john speak of, when they enlarge upon the characteristics of faith. it was the gift of faith, of a living, loving faith, such as 'overcomes the world' by seeking 'a better country, that is, a heavenly.' this it was that kept him so 'unspotted from the world' in the midst of worldly engagements and pursuits. no wonder, then, that a man thus minded should gradually have been led on into the catholic church. judging as we do from the event, we thankfully recognise in him an elect soul, for whom, in the decrees of omnipotent love, a seat in heaven has been prepared from all eternity--whose name is engraven on the palms of those hands which were graciously pierced for his salvation. such eager, reverential thoughts of god as his, prior to his recognising the mother of saints, are surely but the first tokens of a predestination which terminates in heaven. that straightforward, clear, good sense which he showed in secular matters did not fail him in religious inquiry. there are those who are practical and sensible in all things save in religion; but he was consistent; he instinctively turned from bye-ways and cross-paths, into which the inquiry might be diverted, and took a broad, intelligible view of its issues. and, after he had been brought within the fold, i do not think i can exaggerate the solicitude which he all along showed, the reasonable and prudent solicitude, to conform himself in all things to the enunciations and the decisions of holy church; nor, again, the undoubted conviction he has had of her superhuman authority, the comfort he has found in her sacraments, and the satisfaction and trust with which he betook himself to the intercession of the blessed virgin, to the glorious st. michael, to st. margaret, and all saints. . i will make one remark more. i have spoken, first, of his high natural gifts, of his various advantages for starting in life, and of his secular prospects. next, in contrast with this first view of him, i have insisted on his singular freedom from ambition, and have traced it to that religiousness of mind which was so specially his; to his intimate sense of the vanity of all secular distinction, and his supreme devotion to him who alone is 'faithful and true.' and now, when i am brought to the third special feature of his life, as it presents itself to me, i find myself close to a sacred subject, which i cannot even touch upon without great reverence and something of fear. we might have been led to think that a man already severed in spirit, resolve, and acts from the world in which he lived, would have been granted by his lord and saviour to go forward in his course freely, without any unusual trials, such as are necessary in the case of common men for their perseverance in the narrow way of life. but those, for whom god has a love more than ordinary, he watches over with no ordinary jealousy; and if the world smiles on them, he sends them crosses and penances so much the more. he is not content that they should be by any common title his; and, because they are so dear and near to him, he provides for them afflictions to bring them nearer still. i hope it is not presumptuous thus to speak of the inscrutable providences of god. i know that he has his own wise and special dealings with every one of us, and that what he determines for one is no rule for another. i am contemplating, and, if so be, interpreting, his loving ways and purposes only towards the very man before us. now, so it was, there was just one aspect of this lower world which he might innocently love; just one in which life had charms for a heart as affectionate as it was religious. i mean that assemblage of objects which are included under the dear name of home. if there was rest and solace to be found on earth, he found it there. is it not remarkable, then, that in this, his sole earthly sanctuary, he who loved him with so infinite a love met him, visited him, not once or twice, but again and again, with a stern rod of chastisement? stroke after stroke, blow after blow, stab after stab, was dealt against his very heart. 'great and wonderful are thy works, o lord god almighty; just and true are thy ways, o king of ages. who shall not fear thee, o lord, and magnify thy name? for thou only art holy.' i may speak with more vivid knowledge of him here than in other respects, for i was one of the confidants of his extreme suffering under the succession of terrible inflictions which left wounds never to be healed. they ended only with his life; for the complaint, which eventually mastered him, was brought into activity by his final bereavement. nay, i must not consider even that great bereavement his final one; his call to go hence was itself the final agony of that tender, loving heart. he who had in time past been left desolate by others, was now to leave others desolate. he was to be torn away, as if before his time, from those who, to speak humanly, needed him so exceedingly. he was called upon to surrender them in faith to him who had given them. it was about two hours before his death, with this great sacrifice, as we may suppose, this solemn summons of his supreme lord confronting him, that he said, with a loud voice, 'thy will be done;' adding his favourite prayer, so well known to us all: 'fiat, laudetur, atque in æternum superexaltetur, sanctissima, altissima, amabilissima voluntas dei in omnibus.' they were almost his last words. we too must say, after him, 'thy will be done.' let us be sure that those whom god loves he takes away, each of them, one by one, at the very time best for their eternal interests. what can we, in sober earnest, wish, save that very will of god? is he not wiser and more loving than we are? could we wish him back whom we have lost? who is there of us who loves him most but would feel the cruelty of recalling to this tumultuous life, with its spiritual perils and its dark future, a soul who is already rejoicing in the end and issue of his trial, in salvation secured, and heaven begun in him? rather, who would not wish to have lived his life, and to have died his death? how well for him that he lived, not for man only, but for god! what are all the interests, pleasures, successes, glories of this world, when we come to die? what can irreligious virtue, what can innocent family affection do for us, when we are going before the judge, whom to know and love is life eternal, whom not to know and not to love is eternal death? o happy soul, who hast loved neither the world nor the things of the world apart from god! happy soul, who, amid the world's toil, hast chosen the one thing needful, that better part which can never be taken away! happy soul, who, being the counsellor and guide, the stay, the light and joy, the benefactor of so many, yet hast ever depended simply, as a little child, on the grace of god and the merits and strength of thy redeemer! happy soul, who hast so thrown thyself into the views and interests of other men, so prosecuted their ends, and associated thyself in their labours, as never to forget, there is one holy catholic roman church, one fold of christ and ark of salvation, and never to neglect her ordinances or to trifle with her word! happy soul, who, as we believe, by thy continual almsdeeds, offerings, and bounties, hast blotted out such remains of daily recurring sin and infirmity as the sacraments have not reached! happy soul, who by thy assiduous preparation for death, and the long penance of sickness, weariness, and delay, hast, as we trust, discharged the debt that lay against thee, and art already passing from penal purification to the light and liberty of heaven above! and so farewell, but not farewell for ever, dear james robert hope-scott! he is gone from us, but only gone before us. we then must look forward, not backward. we shall meet him again, if we are worthy, in 'mount sion, and the heavenly jerusalem,' in 'the company of many thousands of angels, the church of the firstborn who are written in the heavens,' with 'god, the judge of all, and the spirits of the just made perfect, and jesus, the mediator of the new testament, and the blood which speaketh better things than that of abel.' j. h. n. appendix ii. _words spoken in the chapel of the ursulines of jesus, st. margaret's convent, edinburgh, on the th day of may, , at the funeral of james robert hope-scott, q.c. by the rev. william j. amherst, s.j._ my dear brethren,--in complying with the request which has been made to me, to say a few words on this solemn occasion about one who was so immeasurably my superior in everything, i feel as a child would when suddenly asked to give an opinion on some abstruse question which it could not comprehend. but when asked to address you, however sensible i might have been of my own inferiority, i could not, even in thought, entertain a reluctance; i could not show the slightest hesitation to speak the praises of one whom i admired so much, to ask your prayers for one whom i so much loved. scotland is blessed in giving a resting-place to one of her noblest sons; and this religious community is doubly blessed in providing the holy spot where his body shall repose. i need not enter into all the particulars of his life. those which i should naturally think of to-day are sufficiently known to you all. but if i do not enter into any details, it is not that they are without a very strong interest. they might well be recorded as the history of a great and noble character, as an example to the young men of our own day, and as possessing, from his family connections, more than ordinary value for every one. but i must speak of his character in general, and single out those points which i consider deserving of especial praise. we must praise the dear deceased. it is our duty to do so. what are our desires now? what is our great wish? that god may have mercy on his soul. god will hear us when we appeal to him by the good works which his servant has done. we should all praise him, that we may be so many witnesses before god of the things which we know must entitle him to mercy from his father who is in heaven. when i first heard that he was dead--especially when i was asked to speak about him--i began to think of his character in a more careful manner than i had ever done before. besides my own thoughts about him, i have heard what they say of him who were most closely allied to him. i have listened to those who, though not related to him, were his most intimate friends and acquaintance. i know what is thought of him by those who knew him well. i have seen letters written since his death from many different persons; from those who knew him in early days, those who knew him in middle life, and again, those who knew him in later days. i have read letters from some who knew him during the whole of his and their lives. there is a unanimity in the thoughts of all about him which is most striking. the thoughts and words of every one seem to form one beautiful melody, one harmonious song. they all testify to the same great intellectual qualities, the same goodness of heart, the same excellence of demeanour. they speak of him as being one who was more fit for the foremost places in the state than some who have actually attained them. they speak of him in such terms as these, 'the loveable,' 'the amiable, 'the beautiful.' besides having talents of the highest order, the dear deceased possessed a nature peculiarly susceptible of good impressions. and he seems to have opened his whole heart to receive the dew of heaven; and the grace of god produced a hundredfold in his soul. to have known a man such as he was, who possessed such power of mind combined with such high attainments, such soundness of principle with such rectitude in practice, such independence of thought, and such submission to conscience and lawful authority; to have known him-- to have been, i may say, on terms of friendship and intimacy with him--will be amongst the most pleasing and the saddest recollections of my life. i have said his submission to conscience. it seems almost like presumption in me, standing as i do in the midst of those who knew him so much better than myself, to single out any one distinguishing characteristic; but it always struck me that a great conscientiousness was that which showed itself the most, and shone most brilliantly to those who had the happiness of knowing him. the voice of conscience seemed to have a magic effect upon him. the call was no sooner heard than it was obeyed, and without any apparent hesitation of the will. it was this delicacy of conscience, and his good- will to act upon it, combined with his most perfect demeanour, which gave him that authority over others which was so beautifully spoken of by his venerable friend on monday last, when i and many of you, my dear brethren, had the happiness of being present. for it was this conscientiousness which purified, consolidated, and gave direction to all the great qualities of his soul. to this influence which he had over others i am myself a willing witness. i felt the force of it myself. and in saying this, my dear brethren, i speak most sincerely what i believe to be true. i should deem it an irreverence on an occasion like this to say a word which i did not believe. though by no means a young man myself when i first had the happiness of making acquaintance with the dear deceased, during the few years that i knew him he exercised an influence over me, for the effects of which i now thank god, and hope that i shall thank him for all eternity. it was, my dear brethren, to this great gift of conscientiousness, aided by the grace of god, that he who has left us owed the greatest blessing of his life--his submission to the one holy catholic and apostolic church. the obstacles which stood in the way of his entering the church must have been great. the old french saying does not stand good when one who is not a catholic is thinking of entering the church. it is not the first step towards the church which, in this country at least, costs the sacrifice. the first step costs little; it most frequently costs nothing. it is generally a pleasant step to take. many have taken that step; but few have persevered in their onward march. the step which costs the sacrifice is that which crosses the threshold when the door has been arrived at. for on one side stands that powerful tempter, human respect, whose baneful influence has sent back hundreds, perhaps thousands, into the dreary waste. on the other side stands ambition, with noble and captivating mien. i need not speculate here as to what ambition may say to others; but i will imagine what ambition may have said to our departed friend. it may have addressed him in some such words as these: 'you are conscious, innocently conscious, of possessing great talents. you cannot have associated as you have done with men of great intellect, with the first men of the day, without having in some degree measured yourself with them, without knowing something of your own great power. you are, perhaps, desirous yourself of advancing in the highest paths. you may have a praiseworthy ambition of using the gifts you have received for the good of others, and to make a return to god for all that he has bestowed upon you. you cannot but know that, from your family connections, and the position you hold in society, you have as fine an opening as was ever presented to a young man. enter the catholic church, and all such knowledge will be useless; all such thoughts may be cast aside.' there is no use, my dear brethren, in blinding ourselves to the truth in this matter. we know it, and it is well that we should recognise it. in this country, which boasts so much of its religious liberty, the influence--the persecution i must call it--of public opinion is such, that when a man enters the church, he deprives himself of all chance of progress in the high walks of life. it may be said that in the line in which he had hitherto walked, he succeeded as well after he entered the church as he had done before. it is true that he reached the highest point of eminence as an advocate, and his religion was no obstacle in the way; but if it was so, it was because it was the interest of suitors to make use of his power. but if he ever entertained any idea of attaining to the highest offices in the state--and he may well have done so--the fact of his having entered the catholic church would, in all probability, have proved a bar to his advance. he resisted the tempters; he despised human respect, and he thrust aside ambition. having walked up to the open door of the church, he did what conscience told him he ought to do, and passing the threshold, he went in. my dear brethren, there can be no doubt that the life which he led before this time had prepared him for the step which he took. he had a great devotion to the will of god. his favourite prayer was those well-known words: 'may the most just, the most high, and the most amiable will of god be done, praised, and eternally exalted in all things!' and though before he became a catholic his thoughts may not have been put into that particular formula, yet no doubt the substance of those words had been his prayer through life. as the will of god had been his guiding star, so, and as a consequence, he always had a great love for jesus christ our redeemer. i cannot, indeed, state this as a positive fact on my own personal knowledge, but it could not have been otherwise; and you, my dear brethren, who knew him so much better than i did, will, i think, agree with me in this respect. when he became a catholic, jesus christ was the object of his continually increasing love. by the means which god provided for him in the church, his faith in his redeemer, his hope in his redeemer, and his love for his redeemer, grew stronger, and went on increasing to his dying day. [footnote: the last words which he heard on earth whilst the crucifix was pressed to his lips, and they were spoken by those lips which here he loved the most, were these: 'you know that you have loved jesus all your life.'] as he loved jesus all his life, pray, my dear brethren, that his merciful lord may show mercy to him now. some amongst you, my dear brethren, have already heard from the lips of one as much my superior as the subject of my discourse was, that a distinguishing feature of the departed was the intensity of his domestic affection. and the venerable preacher observed that the great trial of him who has left us was to receive a succession of terrible wounds in the tenderest part of his noble nature. you will remember his words. he said that god had repeatedly struck him; that he had stabbed him. it was so, indeed; and yet, my dear brethren, at the same time that a merciful god so severely tried his servant, it was through those same domestic affections that he gave to him the greatest comfort, next to a good conscience, that a man can have on his death-bed. for to him who had always been so kind and gentle with others, and anticipated all their wants, was given during the many long months of his illness all that help and comfort which the most tender, filial, and sisterly love could give. as god blessed him in making him the object of such strong and persevering affection, so he has blessed those also who were the willing instruments of his mercy. pray, my dear brethren, that he may rest in peace. we all owe a great deal to him, more than we can ever repay during life. generosity was a remarkable feature in the dear deceased. his generosity was of a noble kind. it was not confined to generosity with his worldly means. he was generous in his sympathies. he sympathised with all who had any relations with him. no one was ever with him who did not feel this. he was generous with his worldly means; he was generous with his counsel and advice. he was ready and willing to help any one in any way he could. i feel that i owe him much myself. i have already alluded to the obligations which i am under to him. and who is there amongst you, my dear brethren, who does not, in some respect, owe him much? as he was generous to others, let us be generous to him. let us pray, and continually pray, to god for him. if any of you may be inclined to relax in your prayers for his soul, because you think that his good works were such that we have reason to hope that he is even now enjoying the sight of god, i do not quarrel with you for so thinking--i may think so myself; but still i urge you to pray. pray as if you thought it were not so. do not let your hope lessen the effect of your love. pray for him as you would wish him and others to pray for you if you were dead. and here, my dear brethren, i might finish my discourse. but who is there who knew the dear departed, who does not feel an irresistible impulse to turn from the dead to the living? this influence may have been felt on other occasions by others. for my part, i have never so deeply felt how impossible it is to separate the one who has gone from those whom he has left behind. pray for the father; and pray also for the children. pray for those whose future must be a matter of interest to you all. and you may pray with a firm hope of being heard. for it would seem that there is a special providence over them, for already those children have found a home --homes, i may say--which a guardian angel might have chosen for them. pray that god would ratify and confirm all those blessings which that fond parent had bestowed upon his own, especially those blessings which, with increased earnestness, he must have desired when he saw that, at a critical moment in life, the hand which had guided was to make sign no more. pray, my dear brethren, that those two honoured names which he bore, and which for so many years have been allied to all that is best and of sterling worth, to all that is great and noble, may long continue the ornament and the pride of scotland. once more, let me turn from the living to the dead; and i will conclude with the prayer of the church--'eternal rest give to him, o lord; and may a perpetual light shine upon him! may he rest in peace!' appendix iii. _the right hon. w. e. gladstone, m.p., to miss hope-scott [now the hon. mrs. maxwell scott_]. hawarden: sept. , . my dear miss hope-scott,--i found awaiting me, through your kindness, on my return from scotland, dr. newman's address on your much-loved father's death. i need not say that one of my first acts was to read it. it does not discourage me from attempting to put on paper my recollections of him, as my free intervals of time may permit. it is well that a character of such extraordinary grace as his should have been portrayed by one who could scarcely, i think, even if he tried, compose a sentence that would not be 'a thing of beauty.' his means and materials for undertaking that labour of love were as superior to mine as his power of performing it. i will only say that i countersign, with full assent, to the best of my knowledge, the several traits which dr. newman has given. he must have much more to say. i shall at once lay before you all my little store of knowledge, in addition to that worthier tribute of your father's own letters, to which you are not less welcome. lights upon his mental history my memory may, i hope, serve here and there to throw; but those will be principally for the period antecedent to what he himself described as 'the great change of his life.' few men, perhaps, have had a wider contact with their generation, or a more varied experience of personal friendships, than myself. among the large numbers of estimable and remarkable people whom i have known, and who have now passed away, there is in my memory an inner circle, and within it are the forms of those who were marked off from the comparative crowd even of the estimable and the remarkable by the peculiarity and privilege of their type. of these very few, some four or five i think only, your father was one: and with regard to them it always seemed to me as if the type in each case was that of the individual exclusively, and as if there could be but one such person in our world at a time. after the early death of arthur hallam, i used to regard your father distinctly as at the head of all his contemporaries in the brightness and beauty of his gifts. we were at eton at the same time, but he was considerably my junior, so that we were not in the way of being drawn together. at christ church we were again contemporaries, but acquaintances only, scarcely friends. i find he did not belong to the 'oxford essay club,' in which i took an active part, and which included not only several of his friends, but one with whom, unless my memory deceives me, he was most intimate--i mean mr. leader. and yet i have to record our partnership on two occasions in a proceeding which in oxford was at that time, and perhaps would have been at any time, singular enough. at the hazard of severe notice, and perhaps punishment, we went together to the baptist chapel of the place, once to hear dr. chalmers, and the other time to hear mr. rowland hill. i had myself been brought up in what may be termed an atmosphere of low church; and, though i cannot positively say why, i believe this to have been the case with him; and questions of communion or conformity at that date presented themselves to us not unnaturally as questions of academic discipline, so that we did not, i imagine, enter upon any inquiry whether we in any degree compromised our religious position by the act, or by any intention with which it was done. after oxford (which i quitted in december ) the next occasion on which i remember to have seen him was in his sitting-room at chelsea hospital. there must, however, have been some shortly preceding contact, or i should not have gone there to visit him. i found him among folios and books of grave appearance. it must have been about the year . he opened a conversation on the controversies which were then agitated in the church of england, and which had oxford for their centre. i do not think i had paid them much attention; but i was an ardent student of dante, and likewise of saint augustine; both of them had acted powerfully upon my mind; and this was in truth the best preparation i had for anything like mental communion with a person of his elevation. he then told me that he had been seriously studying the controversy, and that in his opinion the oxford authors were right. he spoke not only with seriousness, but with solemnity, as if this was for him a great epoch; not merely the adoption of a speculative opinion, but the reception of a profound and powerful religious impulse. very strongly do i feel the force of dr. newman's statements as to the religious character of his mind. it is difficult in retrospect to conceive of this, except as growing up with him from infancy. but it appeared to me as if at this period, in some very special manner, his attention had been seized, his intellect exercised and enlarged in a new field; and as if the idea of the church of christ had then once for all dawned upon him as the power which, under whatever form, was from thenceforward to be the central object of his affections, in subordination only to christ himself, and as his continuing representative. from that time i only knew of his career as one of unwearied religious activity, pursued with an entire abnegation of self, with a deep enthusiasm, under a calm exterior, and with a grace and gentleness of manner, which, joined to the force of his inward motives, made him, i think, without doubt the most winning person of his day. it was for about fifteen years, from that time onwards, that he and i lived in close, though latterly rarer intercourse. yet this was due, on my side, not to any faculty of attraction, but to the circumstance that my seat in parliament, and my rather close attention to business, put me in the way of dealing with many questions relating to the church and the universities and colleges, on which he desired freely to expand his energies and his time. i will here insert two notices which illustrate the opposite sides of his character. it was in or about that i came to know well his sister-in- law, lady f. hope, then already a widow. i remember very clearly her speaking to me about the manner in which he had ministered to her sorrow. it was not merely kindness, or merely assiduity, or any particular act of which she spoke. she seemed to speak of him as endowed with some special gift, as if he had, like one of old, been 'surnamed barnabas, which is, being interpreted, the son of consolation.' i now pass to the other pole of his mind, his relish for all fun, humour, and originality of character. in one of his tranquil years he told me with immense amusement an anecdote he had brought from oxford. he was in company with two men, mr. palmer, commonly called deacon palmer, and arthur kinnaird, of whom the one was not more certain to supply the material of paradox, than the other to draw it out. the deacon had been enlarging in lofty strain on the power and position of the clergy. 'then i suppose,' said kinnaird, 'you would hold that the most depraved and irreligious priest has a much higher standing in the sight of god than any layman?' 'of course,' was the immediate reply. [footnote: of course, mr. palmer, who was clear-headed, knew what he was saying, and meant that, in comparing an irreligious priest with a religious layman, the priest, _as such_, belongs to a higher spiritual order than the layman _as such_, just as it is a mere truism to say that a fallen angel, as regards his degree in the order of creation, is superior to a saint.--ed.] his correspondence with me, beginning in february , truly exhibits the character of our friendship, as one founded in common interests, of a kind that gradually commanded more and more of the public attention, but that with him were absolutely paramount. the moving power was principally on his side. the main subjects on which it turned, and which also formed the basis of our general intercourse, were as follows: first, a missionary organisation for the province of upper canada. then the question of the relations of church and state, forced into prominence at that time by a variety of causes, and among them not least by a series of lectures, which dr. chalmers delivered in the hanover square rooms, to distinguished audiences, with a profuse eloquence, and with a noble and almost irresistible fervour. those lectures drove me upon the hazardous enterprise of handling the same subject upon what i thought a sounder basis. your father warmly entered into this design; and bestowed upon a careful and prolonged examination of this work in ms., and upon a searching yet most tender criticism of its details, an amount of thought and labour which it would, i am persuaded, have been intolerable to any man to supply, except for one for whom each and every day as it arose was a new and an entire sacrifice to duty. as in the year , when the manuscript was ready, i had to go abroad on account mainly of some overstrain upon the eyes, he undertook the whole labour of carrying the work through the press; and he even commended me, as you will see from the letters, because i did not show an ungovernable impatience of his aid. [footnote: j. r. hope to mr. gladstone, august , , in ch. ix. vol. i. p. .] the general frame of his mind at this time, in october , will be pretty clearly gathered from a letter of that month, no. in the series, written when he had completed that portion of his labours. [footnote: ibid., october , , ch. ix. vol. i. p. .] he had full, unbroken faith in the church of england, as a true portion of the catholic church; to her he had vowed the service of his life; all his desire was to uphold the framework of her institutions, and to renovate their vitality. he pushed her claims, you may find from the letters, further than i did; but the difference of opinion between us was not such as to prevent our cordial co- operation then and for years afterwards; though in using such a term i seem to myself guilty of conceit and irreverence to the dead, for i well know that he served her from an immeasurably higher level. if i have not yet referred to his main occupation, it is because i desire to speak specially of what i know specially. it was, however, without doubt, in his fellowship at merton that he found at this period the peculiar work of his life. a wonderful combination of fertility with solidity always struck me as one of his most marked mental characteristics. only by that facility could he have accumulated and digested the learning which he acquired in relation to church, and especially to college history and college law. in mastering these systems how deeply he had drunk of the essential spirit of the times which built them up, may be seen from a very striking letter (no. ) respecting walter de merton. [footnote: j. r. hope to mr. gladstone, dated 'rochester: sunday, july , ,' in ch. viii. vol. i. p. .] he gave the world some idea of the extent and fruitfulness of these labours in connection with the next subject on which we had much communication together, the subject of what was termed in cathedral reform. my part was superficial, and was performed in the house of commons. his was of a very different character. as a hearer, and a rapt hearer, i can say that dr. newman (p. ) has not exaggerated the description of the speech which he delivered, as counsel for the chapters (i think) before the house of lords in .[footnote: see ch. xi. vol. i. p. .] i need not say that, during the last forty years, i have heard many speeches, and many, too, in which i had reason to take interest, and yet never one which, by its solid as well as by its winning qualities, more powerfully impressed me. at this period he had (i think never or) rarely spoken in public, and he had not touched thirty years of age. i cannot now say who was the prime mover in the next matter of interest which we pursued in common. it was the foundation of trinity college, glenalmond. we drew into our partnership the deceased dean ramsay, one of the very few men known to me who might, perhaps, compete even with your father in attracting affection, though very different in powers of mind. the dean worked with us usefully and loyally, although, as was to a certain extent his nature, sometimes in fear and trembling. the early prosecution of this enterprise was left for a time mainly to me, while your father paid his visit to italy in , in company with mr, rogers, now lord blachford, from whom i hope you may obtain memorials of it far better worth your having than any which i could supply, even had i been his companion. i remember that i wrote for him in bad italian a letter of introduction to manzoni, of whom, and of whose religious standing-ground, he gives (no. [footnote: see ch. xiii. vol. i. p. , mr. hope to mr. gladstone (milan: november , ).]) a remarkable account. i wish i could recover now that letter, on account of the person for whom, and the person to whom, it was written. i think it was shortly before or shortly after this tour, that your father one day spoke to me--i well remember the spot where he stood--about his state and course of life. he had taken a resolution, with a view to the increase of his means, to apply some part of his time to the ordinary duties of his profession; whether he then said that it would be at the parliamentary bar or not, i am not able to say. he, on this occasion, told me that he did not intend to marry; that, giving a part of his time in the direction i have just mentioned, he meant to reserve all the rest for the church and its institutions; and of these two several employments he said, 'i regard the first as my kitchen-garden, but the second as my flower- garden.' [footnote: compare letter of j. r. hope to mr. gladstone, quoted in ch. xxii vol. ii. p. .] and so it was that, almost without a rival in social attractions, and in the springtide of his youth and promise, he laid with a cheerful heart the offering of his life upon the altar of his god. it was, i think, the undertaking to found trinity college which gave rise to another friendship, that it gave me the greatest pleasure to witness-- between him and my father. in my father was moving on towards fourscore years, but 'his eye was not dim, nor his natural force abated;' he was full of bodily and mental vigour; 'whatsoever his hand found to do, he did it with his might;' he could not understand or tolerate those who, perceiving an object to be good, did not at once and actively pursue it; and with all this energy he joined a corresponding warmth and, so to speak, eagerness of affection, a keen appreciation of humour, in which he found a rest, and an indescribable frankness and simplicity of character, which, crowning his other qualities, made him, i think (and i strive to think impartially), nearly or quite the most interesting old man i have ever known. nearly half a century of years separated the two; but your father, i think, appreciated mine more than i could have supposed possible, and always appeared to be lifted to a higher level of life and spirits by the contact. on one occasion we three set out on a posting expedition, to examine several sites in the midland counties of scotland, which had been proposed for the new college. as we rolled along, wedged into one of the post-chaises of those days, through various kinds of country, and especially through the mountains between dunkeld and crieff, it was a perpetual play, i might almost say roar, of fun and laughter. the result of this tour, after the consideration of various sites near perth, dunkeld, and dunblane, was the selection of the spot on which the college now stands. i am ashamed to recollect that we were, i do not say assisted in reaching this conclusion, but cheered up in fastening on it, by a luncheon, which mr. patton, the proprietor, gave us, of grouse newly killed, roasted by an apparatus for the purpose on the moment, and bedewed with what i think is called partridge-eye champagne. your father's influence operated materially in procuring a preference for this beautiful but somewhat isolated site on the banks of the almond. the general plan of the buildings was, i think, conceived by mr. dyce--another rare specimen of the human being--a master of art and thought in every form, and one whose mind was stocked to repletion with images of beauty. i need not tell you what was your father's estimate of him. as to the site, the introduction of railways, which did not then exist for scotland, has essentially altered the scale for relative advantage for all situations, in proportion as they are near to or removed from these channels of communication, and has caused us, in estimating remoteness from centres, to think of a mile as much as we should formerly have thought of ten. but i ought to record that, in all questions relating to the college, your father's mind instinctively leaned to what may be called the ecclesiastical side; and though the idea of a great school was incorporated in the plan, his desire was that even this should not be too near any considerable town. i remember also his saying to me, with reference to glenalmond, and the opportunities which the college chapel would afford, 'you know it will plant the church in a new district.' he laboured much for the college; and had, if my memory serves, a great hand in framing the constitution, with respect to which his academic learning gave him a just authority. he laboured for it at first in love and enthusiasm, afterwards in duty, at last perhaps in honour: but after a few years it necessarily vanished from his thoughts, and he became unable to share in facing the difficulties through which it had to pass. events were now impending which profoundly agitated, not only what is termed the religious world, but the general mind of the country. i need not here refer to the unwise proceedings of great and ardent churchmen, which darkened the skies over their heads, and brought their cause from calm and peaceful progress to storm, and in some senses to shipwreck. i do not think that, with his solid judgment, he was a party to any of those proceedings. they seem to have gradually brought about an opinion on the part of the ruling authorities of the english church that some effort should be made to counteract the excesses of the party, and to confront the tendencies, or supposed tendencies, now first disclosed, towards the church of rome, by presenting to the public mind a telling idea of catholicity under some other form. i am now construing events, not relating them; but they are events which it will be a prime duty of the future historian to study, for they have (i think) sensibly affected in its religious aspects the history of this country, nay, even the history of western christendom. about this time baron bunsen became the representative of prussia at the british court. i remember that your father used to strike me by his suspicions and apprehensions of particular persons; and bunsen, if i recollect right, was among them. that distinguished person felt an intense interest in england; he was of a pious and an enthusiastic mind, a mind of almost preternatural activity, vivacity, and rapidity, a bright imagination, and a wide rather than a deep range of knowledge. he was in the strongest sympathy, both personal and ecclesiastical, with the then reigning king of prussia, who visited england in the autumn, i think, of . sir robert peel, however loyal to the _entente_ with france, had a strong desire for close relations of friendship with germany; and the marriage of the queen, then recent, told in the same sense. all these circumstances opened the way for the singular project of the anglican bishopric of jerusalem, which i believe to have been the child of bunsen's fertile and energetic brain, and which received at that particular juncture a welcome due, i think, to special circumstances such as those which i have enumerated. wide as was the range of bunsen's subsequent changes, he at this time represented the opinions of the evangelical german church, with the strong leaning of an _amateur_ towards the episcopate as a form of government, not as the vehicle of the continuous, corporate, and visible life of the christian church. he had, beyond all men i ever knew, the faculty of persuading himself that he had reconciled opposites; and this persuasion he entertained with such fervour that it became contagious. from some of these letters (in accordance with my recollections) it would appear that in the early stages of this really fantastic plan (see no. ) [footnote: see ch. xvi. (vol. i. p. ), j. r. hope to mr. gladstone, november , .] your father's aid had been enlisted. i must not conceal that my own was somewhat longer continued. the accompanying correspondence amply shows his speedy and strong dissatisfaction and even disgust. i do not know whether the one personal influence, which alone, i think, ever seriously affected his career, was brought to bear upon him at this time. but the movement of his mind, from this juncture onwards, was traceably parallel to, though at a certain distance from, that of dr. newman. my opinion is (i put it no higher) that the jerusalem bishopric snapped the link which bound dr. newman to the english church. i have a conviction that it cut away the ground on which your father had hitherto most firmly and undoubtingly stood. assuredly, from or onwards, his most fond, most faithful, most ideal love progressively decayed, and doubt nestled and gnawed in his soul. he was, however, of a nature in which levity could find no place. without question, he estimated highly, as it deserves to be estimated, the tremendous nature of a change of religious profession, as between the church of england and the church of rome; a change dividing asunder bone and marrow. nearly ten years passed, i think, from , during which he never wrote or spoke to me a positive word indicating the possibility of this great transition. long he harboured his misgivings in silence, and ruminated upon them. they even, it seemed to me, weighed heavily upon his bodily health. i remember that in i wrote an article in a review (mentioned in the correspondence) which referred to the remarkable words of archbishop laud respecting the church of rome as it was; and applied to the case those other remarkable words of lord chatham respecting america, 'never, never, never.' he said to me, half playfully (for the article took some hold upon his sympathies), 'what, gladstone, never, never, never?' it must have been about this time that i had another conversation with him about religion, of which, again, i exactly recollect the spot. regarding (forgive me) the adoption of the roman religion by members of the church of england as nearly the greatest calamity that could befall christian faith in this country, i rapidly became alarmed when these changes began; and very long before the great luminary, dr. newman, drew after him, it may well be said, 'the third part of the stars of heaven.' this alarm i naturally and freely expressed to the man upon whom i most relied, your father. on the occasion to which i refer he replied to me with some admission that they were calamitous; 'but,' he said, 'pray remember an important compensation, in the influence which the english mind will bring to bear upon the church of rome itself. should there be in this country any considerable amount of secession to that church, it cannot fail to operate sensibly in mitigating whatever gives most offence in its practices or temper.' i do not pretend to give the exact words, but their spirit and effect i never can forget. i then thought there was great force in them. when i learned that he was to be married, my opinion was that he had only allowed his thoughts to turn in the direction of the bright and pure attachment he had formed, because the object to which they had first been pledged had vanished or been hidden from his view. i think that his feelings underwent a rally, rather, perhaps, than his understanding, when i was first put forward as a candidate for the university of oxford in . at least, i recollect his speaking with a real zest and interest at that time of my wife, as a skilful canvasser, hard to resist. i have just spoken of your father as the man on whom i most relied; and so it was. i relied on one other, also a remarkable man, who took the same course, at nearly the same time; but on him most, from my opinion of his sagacity. from the correspondence of you might suppose that he relied upon me, that he had almost given himself to me. but whatever expressions his warm feelings combined with his humility may have prompted, it really was not so; nor ought it to have been so, for i always felt and knew my own position beside him to be one of mental as well as moral inferiority. i cannot remember any occasion on which i exercised an influence over him. i remember many on which i tried; and especially when i saw his mind shaken, and, so to speak, on the slide. but these attempts (of which you may possibly have some written record) completely failed, and drove him into reserve. never, on any one occasion, would he enter freely into the question with me. i think the fault lay much on my side. my touch was not fine enough for his delicate spirit. but i do not conceal from you that i think there was a certain amount of fault on his side also. notwithstanding what i have said of his humility, notwithstanding what dr. newman has most truly said of his self-renouncing turn, and total freedom from ambition, there was in him, i think, a subtle form of self-will, which led him, where he had a foregone conclusion or a latent tendency, to indulge it, and to refuse to throw his mind into free partnership with others upon questions of doubt and difficulty. yet i must after all admit his right to be silent, unless where he thought he was to receive real aid; and of this he alone could be the judge. indeed, his own intellectual calibre was too large to allow him to be other than fastidious in his judgment of the capacities of other men. he had a great opinion of the solidity and tact of denison, bishop of salisbury. he thought also very highly of lord blachford. when archbishop (then archdeacon) manning produced his work on the 'unity of the church,' he must, i think, have seen it before the world saw it; for i remember his saying to me, 'that is going to be a great book,' or what would have been not less emphatic, 'that is going to be a book.' again, he was struck with mr. w. palmer's work on the church, to which also testimony has been borne by dr. newman in his 'apologia.' but i do not recollect that he had an unreserved admiration at once of character and intellect in any case except one--that of dr. newman himself. whatever may have been the precise causes of the reticence to which i have referred (and it is possible that physical weakness was among them), the character of our friendship had during these later years completely changed. it was originally formed in common and very absorbing interests. he was not of those shallow souls which think, or persuade themselves they think, that such a relation can continue in vigour and in fruitfulness when its daily bread has been taken away. the feeling of it indeed remained on both sides, as you will see. on my side, i may say that it became more intense; but only according to that perversity, or infirmity, of human nature, according to which we seem to love truly only when we lose. my affection for him, during those later years before his change, was, i may almost say, intense; and there was hardly anything, i think, which he could have asked me to do, and which i would not have done. but as i saw more and more through the dim light what was to happen, it became more and more like the affection which is felt for one departed. as far as narrative is concerned, i am now at the close. in came the discussions and alarms connected with the gorham judgment; and came also the last flickering of the flame of his attachment to the church of england. thereafter i never found myself able to turn to account as an opening any word he spoke or wrote to me. the year had been, for my wife and me, one of sorrow and anxiety, and i was obliged to spend the winter in italy. in the spring of i dined at his brother's and met him. he spoke a few words indicative of his state of mind, but fell back immediately into silence. i was engaged at the time in opposing with great zeal the ecclesiastical titles bill, but not even this circumstance led him to give me his confidence. the crisis had come. i am bound to say that relief soon became visible in its effect upon his bodily health. his road and mine were now definitively parted. after the change had taken place, it happened to me to be once, and once only, brought into contact with him in the course of his ordinary professional employment. i had been giving evidence in a committee-room on behalf of a railway. he was the opposing counsel, and had to put some questions to me in cross-examination. his manner in performing this usually harsh office was as engaging as in ordinary social intercourse; and though i have no doubt he did his duty by his clients, i thought he seemed to handle me with a peculiar tenderness. on june , , he wrote to me the beautiful letter, no. . [footnote: see ch. xxi. (vol. ii. p. ), where this letter is given.] it was the epitaph of our friendship, which continued to live, but only, or almost only, as it lives between those who inhabit separate worlds. on no day since that date, i think, was he absent, however, from my thoughts; and now i can scarcely tear myself from the fascination of writing about him. and so, too, you will feel the fascination of reading about him; and it will serve to relieve the weariness with which otherwise you would have toiled through so long a letter. i hope it is really about him, and that egotism has not slily crept into the space which was meant to be devoted to him. it notices slighter as well as graver matters; for the slight touches make their contribution to the exhibition of every finely shaded character. if anything which it contains has hurt you, recollect the chasm which separates our points of view; recollect that what came to him as light and blessing and emancipation, had never offered itself to me otherwise than as a temptation and a sin; recollect that when he found what he held his 'pearl of great price,' his discovery was to me beyond what i could describe, not only a shock and a grief, but a danger too. i having given you my engagement, you having accepted it, i have felt that i must above all things be true, and that i could only be true by telling you everything. if i have traversed some of the ground in sadness, i now turn to the brighter thought of his present light and peace and progress; may they be his more and more abundantly, in that world where the shadows that our sins and follies cast no longer darken the aspect and glory of the truth; and may god ever bless you, the daughter of my friend! believe me always and warmly yours, w. e. gladstone. miss hope-scott. appendix iv. verses by j. r. hope-scott. feast of the circumcision, (the birthday of c. h. s.). new year's day returns again, does it bring us joy or pain? does it teach us to rely on the world, or pass it by? will it be like seasons gone, or undo what they have done? shall we trust the future more than the time we've spent before? is it hope, or is it fear that attends our new-born year? childhood, busy with its toys, answers, it expects new joys; youth, untaught by pleasures past, thinks to find some that will last; manhood counts its honours o'er, and resolves to gather more; while old age sits idly by, only hoping not to die. thus the world--now, christian, say what for me means new year's day. new year's day is but a name, while our hearts remain the same; all our years are old and few, christ alone can make them new. around him our seasons move, each made fruitful by his love. summer's heat and winter's snow may unheeded come and go; what he suffered, what he taught, makes the year of christian thought. then to know thy gain or loss, from the cradle towards the cross follow him, and on the way thou wilt find his new year's day. advent, summoning thy heart in his coming to take part, warned thee of its double kind, mercy first, but wrath behind; bade thee hope the incarnate word, bade thee fear the avenging lord. christmas next, with cheerful voice, called upon thee to rejoice; but, while yet the blessed child sweetly on thy homage smiled, lo! beside his peaceful bed stephen laid a martyr's head. next a day of joy was won for thee by our dear saint john; but its sun had scarcely set when the earth with blood was wet: rachel, weeping for her slain, would not raise her heart again; and st. thomas, bowing down, grasped in death his jewelled crown. thus the old year taught thee: say, thinkest thou that new year's day will these lessons sweep away? foolish thought! the opening year claims a sacrifice more dear than the martyrdom of saints, or the blood of innocents. christ himself doth now begin, sinless, to atone for sin; welcomes suffering for our good, takes his saviour's name in blood, and by circumcision's pain makes the old year new again. then, with him to keep the feast, bring thy dearest and thy best; common gifts will not suffice to attend his sacrifice. jesus chose his mother's part, and she brought a pierced heart. but what christ for many chose, doth his utmost love disclose; bid her not unkind to be, but to share that choice with thee. ask her sufferings, ask yet more, ask for those thy saviour bore; upon earth hath never been sorrow like his sorrow seen; he exhausted man's distress, pain, and shame, and loneliness. ask to feel his thorny crown, ask to make his wounds thine own; with his mother claim to be partner in his agony. this obtain, and thou wilt care little what thy new years are; there can thee no grief befall which the cross did not forestall; joy in this world there is none like that which the cross hath won. grasp it, and the year begin with no fear, except of sin; love it, and, in turning o'er all the gifts in hope's bright store, choose but one--to love it more. low tide at sunset on the highland coast. ye dark wild sands, o'er which th' impatient eye travels in haste to watch the evening sky, when last i gazed, how nobly heaved your breast, in purple waves and scattered sunbeams drest! then o'er you shouted many a gallant crew, and in gay bands the sea-fowl circling flew; in your embrace you held the restless tide, and shared awhile great ocean's power and pride. but now how sad, how dreary is the scene in which so much of life hath lately been! your barren wastes untraversed by a sail, your only voice the curlew's distant wail; with rocky limbs and furrowed brow you lie like some lone corpse by living things passed by; till night in mercy spreads her clouded pall, and rising winds mourn at your funeral. yes, you are changed, but not more changed than he who lately stood beside that smiling sea; for whom each bark which hastened to the shore some welcome freight of love or honour bore; who saw reflected in the peaceful flood his home made happy by the bright and good. gladly he looked upon you; now, apart, he veils his brow and hides his desolate heart; from him life's joys have quickly ebbed away, leaving the rocks, the sands, and the declining day. to-morrow's tide again the shore will lave, to-morrow's sun will gild the crested wave; new ships will launch and speed across the main, and the wild sea-fowl ply their sport again; but for the broken-hearted there is none to gather back the spoils which death hath won. none, did i say? o foolish, impious thought, in one whom god hath made, and christ hath bought! thou who dost hold the ocean in thy hand, and the sun's courses guide by thy command, hast thou no morrow for the darkened soul, no tide returning o'er its sands to roll? must its deep bays, once emptied of their sea, for ever waste, for ever silent be? not such thy counsels--not for this the cross stretched its wide arms, and saved a world from loss! when life's great waters are by sorrow dried, then gush new fountains from christ's wounded side; the ark is there to gather in our love, the spirit, dove-like, o'er the stream to move. then look again, and mirrored in thy breast behold the home in which thy dear ones rest; see forms which lately vanished from thy sight, shine back with crowns, and palms, and robes of light! see richer freights than ever ocean bore guided by angel pilots to the shore! in faith, in penitence, in hope shall be thy traffic on that bright and changeless sea. on resuming his profession. mourner, arise! this busy fretful life calls thee again to share its toils and strife; the pause conceded to thy grief is o'er, and the world's march can stay for thee no more. then dry thy tears, and with a steadfast mien resume thy station in the troubled scene; sad, but resolved, thy wonted vigour prove, nor let men deem thee weak from sorrowing love. the wakeful bed, the sudden sharp distress, the still recurring void of loneliness; the urgent prayer, the hope, the humble fear, which seek beyond the grave that soul so dear,-- these yet are thine, but thine to tell no more. hide, then, from careless hearts thy sad but precious store, and if life's struggle should thy thoughts beguile, quicken the pulse, and tempt the cheerful smile, should worldly shadows cross that form unseen, and duty claim a place where grief hath been, spurn not the balm by toil o'er suffering shed, nor fear to be disloyal to the dead. 'twas nature bade thee grieve, and for thy grief the lord of nature now ordains relief. like iron molten by the founder's art, to fierce affliction yields the stubborn heart. the fiery blast its ancient form destroys, and bids it flow released from base alloys; but the kind god, who doth the flames control, wills to re-cast, not to consume, the soul: hence tempering breezes, hence the lessened pain, that the vexed heart may rest and form again. then be it so--but, ere that heart grows cold, see that its later be its nobler mould. see that, by pain made new, and purged from dross, it bear, in sharp relief, the image of the cross.